NOVEMBER AND DECEMBER 2007

COMMISSION DECISIONS AND ORDERS

11-13-2007
11-13-2007
11-14-2007
11-30-2007
12-12-2008
12-14-2007
12-14-2007
12-14-2007
12-14-2007
12-19-2007
12-21-2007
12-26-2007
12-26-2007
12-26-2007
12-26-2007
12-26-2007
12-26-2007
12-28-2007

CENT 2008-21-M
YORK 2008-13-M
WEST 2008-62
CENT 2006-128-M
SE 2008-93-M
CENT 2008-22-M
CENT 2008-40
KENT 2008-65
WEYA 2008-82
LAKE 2005-129
PENN 2007-251-E
CENT 2007-228-M
WEST 2008-111-M
WEST 2008-168
WEYA 2008-78
WEYA 2008-79
WEYA 2008-249
LAKE 2006-60-RM

Pg. 899
Pg. 902
Pg. 906
Pg. 909
Pg. 926
Pg. 929
Pg. 932
Pg. 935
Pg. 938
Pg. 941
Pg. 956
Pg. 980
Pg. 984
Pg. 987
Pg. 990
Pg. 993
Pg. 996
Pg. 999

Solar Sources, Inc.
LAKE 2007-37-R
KENT 2002-42-R
Martin County Coal Corporation
Jim Walter Resources, Inc.
SE
2007-307-R
Morning Glory Gold Mines
WEST 2006-519-M
Kenneth D. Bowles, empl. by New River Mining WEYA 2006-29
Summit Anthracite, Inc.
PENN 2006-201
Oak Grove Resources, LLC.
SE 2007-194
Hazleton Shaft Corporation
PENN 2007-4

Pg. 1015
Pg. 1017
Pg. 1043
Pg. 1050
Pg. 1055
Pg. 1062
Pg. 1089
Pg. 1094

L.G. Everist, Inc.
John Shabrach, empl. by D.M. Stoltzfus & Son
TK Construction, LLC.
Austin Powder Company
Lanier Construction Company
North American Salt Company
Chevron Mining, Inc.
Manalapan Mining Company
Consolidation Coal Company
The American Coal Company
Emerald Coal Resources/Cumberland Coal
James Hamilton Construction
James Hamilton Construction
Canyon Fuel Company
Mammoth Coal Company
Mammoth Coal Company
Benny Presley
Empire Iron Mining Partnership

ADMINISTRATIVE LAW JUDGE DECISIONS

11-06-2007
11-13-2007
11-16-2007
11-16-2007
11-16-2007
11-19-2007
11-26-2007
12-14-2007

ADMINISTRATIVE LAW JUDGE ORDERS

11-02-2007
11-21-2007
12-14-2007

Alex Energy, Inc.
Yurnun Edwurd Jaxun v. Asarco, LLC.
Dana Mining Company, Inc.

i

WEYA2007-497-R
WEST 2007-811-DM
WEYA2007-662

Pg. 1098
Pg. 1100
Pg. 1102

NOVEMBER AND DECEMBER 2007

Review was granted in the following case during the months of November and December:

Secretary of Labor, MSHA v. Twentymile Coal Company, Docket No. WEST 2007-892-E.
(Judge Manning, October 16, 2007)

Review was denied in the following case during the months of November and December:

Solar Sources, Inc. v. Secretary of Labor, MSHA, Docket Nos. LAKE 2007-37-R, et al.
(Chief Judge Lesnick, November 6, 2007)

CO:MlVIISSION DEOSIONS AND ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

November 13, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

DocketNo. CENT 2008-21-M
A.C. No. 39-01477-106913

v.
L.G. EVERIST, INC.

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) ("Mine Act"). On October 10, 2007, the Commission received from
L.G. Everist, Inc. ("Everist") a letter seeking to reopen penalty assessments that had become final
orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

On October 18, 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued eight citations to Everist. Everist filed contests of six of the subject citations
at issue, which are currentlypending before Administrative Law Judge Richard Manning (Docket
Nos. CENT 2007-054-RM, CENT 2007-055-RM, CENT 2007-056-RM, CENT 2007-057-RM,
CENT 2007-058-RM, CENT 2007-059-RM). Subsequently, MSHA issued a proposed penalty
assessment to Everist, covering the eight citations. 1 In its letter, Everist states that upon receiving
the proposed assessment, it checked the six citations that it had intended to contest and remitted a
check for the two citations that did not wish to contest. Everist further asserts that it mistakenly

1

Neither party has submitted the proposed penalty assessment. Consequently, we are
unable to determine exactly when the penalty assessment was issued.
29 FMSHRC 899

failed to send the ·proposed assessment form to MSHA with the payment. Everist additionally
submits that MSHA applied the partial payment to two.ofthe citations that it had intended to
contest. In response, the Secretary states that she does not oppose reopening·the proposed
·
penalty assessments.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Com.mission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed :Everist' s request, in the interests of justice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for Everist's
failure to timely contest the penalty proposal and whether relief from the final order should be
granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the
Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

~£~
MLU!dan, cotyssioner

29 FMSHRC 900

Distribution:
Dan Kuper
L. G. Everist, Inc.
24603 Quarry Road
Dell Rapids, SD 57022
W. Christian Schumann, Esq.
U.S. Department of Labor
Office of the Solicitor
1100 Wilson Boulevard, 22nd Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance , MSHA
U.S. Department of Labor
1100 Wilson Boulevard, 25th Floor
Arlington, VA 22209-3939 ··
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W. Suite 9500
Washington, D.C. 20001

29 FMSHRC 901

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

November 13, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. YORK 2008-13-M
A.C. No. 18-00030-117852

v.
JOHN SHABRACH, employed by
D.M. STOLTZFUS & SON, INC.

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) ("Mine Act"). On October 11, 2007, the Commission received from John
Shabrach ("Shabrach") a motion by counsel seeking to reopen a penalty assessment against
Shabrach under section 110(c) of the Mine Act, 30 U.S.C. § 820(c), that may have become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under the Commission's Procedural Rules, an individual charged under section 1 lO(c)
has 30 days following receipt of the proposed penalty assessment within which to notify the
Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.
In May 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") apparently issued a proposed penalty assessment to Shabrach, alleging that he was
personally liable under section l lO(c) of the Mine Act for an order issued to his employer, D.M.
Stoltzfus & Son, Inc. 1 In his motion, Shabrach asserts that MSHA mailed the proposed penalty
assessment to him at an address that was incorrect. Accordingly, Shabrach states that he never

1

Neither party has submitted the proposed penalty assessment. Consequently, we are
unable to determine exactly when the penalty assessment was issued.
29 FMSHRC 902

received the proposed assessment form and that the first time he learned of the proposed
assessment was when he received on or about September 4, 2007, a delinquency notice from
MSHA dated August 13, 2007, stating that the proposed penalty assessment had become a final
order of the Commission. On October 3, 2007, counsel for Shabrach sent a letter to MSHA
contesting the penalty assessment. The Secretary states that she does not oppose Shabrach's
request to reopen the penalty assessment.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R
§ 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
hatsh remedy and that, if the defaultillg party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
On the basis of the present record, we are unable to determine when the proposed penalty
assessment was issued, to whom it was sent, and how it was addressed. We are also unable to
determine from this record when Shabrach received the second notice and whether his counsel's
letter of contest qualified as a timely notification to the Secretary of a contest of the proposed
penalty. If counsel timely contested the proposed penalty assessment, it would not be a final
order of the Commission. See Stech, emp. by Eighty-Four Mining Co., 27 FMSHRC 891, 892
(Dec. 2005).

29 FMSHRC 903

Having reviewed Shabrach's request, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether Shabrach failed to timely
contest the penalty proposal and, if so, whether good cause exists for granting relief from the
final order. If it is determined that such relief is appropriate, this case shall proceed pursuant to
the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. The Chief
Administrative Law Judge shall also determine whether this case should be consolidated with
Docket No. YORK 2007-66-M.

Mic

Distribution: ·
Thomas Benjamin Huggett, Esq.
Morgan, Lewis & Bockius, LLP
1701 Market Street
Philadelphia, PA 19103-2921
W. Christian Schumann, Esq.
U.S. Department of Labor
Office of the Solicitor ·
1100 Wilson Boulevard, 22nd Floor, West
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Boulevard, 25th Floor
Arlington, VA 22209-3939 ·
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001

29 FMSHRC 905

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

November 14, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2008-62
A.C. No. 05-04591-125636 K393

V.

TK CONSTRUCTION, LLC.

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) ("Mine Act"). On October 11, 2007, the Commission received from TK
Construction, LLC ("TK") a letter requesting that the Commission reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On August 22, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to TK. In its letter, TK states that it did not
receive a copy ofMSHA's proposed assessment until October 5, 2007. When TK subsequently
contacted MSHA and indicated that it wished to contest Citation Nos. 6684324 and 6684325,
MSHA informed it that the 30 days after receipt in which to timely contest the penalty
assessment had already elapsed. The Secretary states that she does not oppose TK's request to
reopen the penalty assessment.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105{a). Jim
29 FMSHRC 906

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found griidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 CF .R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to ·
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed TK's request, in the interests of justice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether TK failed to timely contest the
penalty proposal and, if so, whether good cause exists for granting relief from the final order.
See D.A.S. Sand and Gravel, Inc., 23 FMSHRC 1031, 1033 (Sept. 2001) (remanding to
determine whether relief from final order was appropriate where operator alleged that it never
received copy of the proposed penalty assessment). Ifit is determined that such relief is
appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700.

29'FMSHRC 907

Distribution:
Robert E. Daniels, Safety Manager
T K Mining Service, LLC
117 Meeker Street
P.O. Box 93
Delta, CO 81416
W. Christian Schumann, Esq.
U.S. Department of Labor
Office of the Solicitor
1100 Wilson Boulevard, Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U. S. Department of Labor
1100 Wilson Boulevard, 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Ave., N. W., Suite 9500
Washington, D. C. 20001

29 FMSHRC 908

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, D.C. 20001

November 30, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos.
V.

CENT 2006-128-M
CENT 2006-159-M

AUSTIN POWDER COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
DECISION
BY: Jordan and Young, Commissioners
These consolidated civil penalty proceedings arising under the FederalMine Safety and·
Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) ("Mine Act" or "Act"),·involve citations
issued by the Department of Labor's Mine Safety and Health Administration (''MSHA") to
Austin Powder Company ("Austin Powder"), alleging that it violated 30 C.F.R. §§ 56.6132(a)(4)
and (a)(5). 1 Administrative Law Judge Richard Manning upheld the citations. 29 FMSHRC 274
(Mar. 2007) (ALJ). The Commission granted Austin Powder's petition for discretionary review
challenging the judge's decision. The Commission also granted motions to participate as amicus
1

Section 56.6132 (Magazine requirements) provides in pertinent part:
(a) Magazines shall be(1) Structurally sound;
(2) Noncombustible or the exterior covered with :fire-resistant
material;
(3) Bullet resistant;
(4) Made ofnonsparking material on the inside;
( 5) Ventilated to control dampness and excessive heating within
the magazine;

30 C.F.R. § 56.6132.
29 FMSHRC 909

curiae from the National Stone, Sand & Gravel Association ("NSSGA") and the Institute of
Makers of Explosives ("IME"). For the reasons that follow, we affirm the judge .
.I.

Factual and Procedural Background
McGeorge Contracting Company ("McGeorge") operates the Granite Mountain Quarry
No. 2 in Pulaski County, Arkansas. 29 FMSHRC at 274. Austin Powder is an independent
contractor at the quarry. Id. Austin Powder delivered and stored explosive materials but did not
engage in any blasting activities. Id.
Austin Powder stored several types of detonators at the quarry, including Electro-Star and
Rock Star detonators. Id. at 275; Tr. 31-32. Austin Powder utilized metal, welded freight
containers, similar to those used to transport cargo, for storing the detonators. Tr. 3 8, 150-151.
The unit at issue in this proceeding, container No. 8, was covered by plywood on the interior
sides and floor, but the metal ceiling was not covered, which provided a sparking surface inside
the storage area. 29 FMS-HRC at 275; Tr. 38-39. The plywood on the sides covered up vents
that would have controlled dampness and alleviated excessive heating inside. Tr. 38-40, 46, 150;
G. Exs. 9-1 and 10-1.
On December 6, 2005, MSHA Inspector Steve Medlin conducted an inspection at the
quarry. 29 FMSHRC at 274. Medlin issued Citation No. 6250692, charging Austin Powder with
a violation of30 C.F.R. § 56.6132(a)(5). Id. The citation stated:
The vents in the cap magazine number: 8 was [sic] covered up.
This hazard exposes miners to the possibility of receiving injuries,
should the explosives become over-heated. The foreman stated,
new wood had been installed in the magazine, and was not aware
the vents had been covered.
G. Ex. 5-1. The citation alleged moderate negligence. Id.
Medlin also issued Citation No. 6250695, charging Austin Powder with violating 30
C.F.R. § 56.6132(a)(4). 29 FMSHRC at 275. The citation stated:
The top of magazine number: eight was not covered with nonsparking material. This hazard exposes miners to the possibility of
receiving injuries, should the electric blasting caps become [sic] set
off. This area is traveled on a daily basis, to get supplies for the
days shot.

29 FMSHRC 910

G. Ex. 6-1. The citation alleged moderate negligence. Id. The Secretary proposed penalties of ...
$60 for each citation. 29 FMSHRC at 275.
Austin Powder challenged the proposed penalty assessments and a hearing was held.
Thereafter, the judge issued his decision in which he stated that the parties did not dispute the
existence of the conditions that MSHA cited. Id. Further, the judge noted that the parties agreed
that the products stored in the magazine were "detonators," as that term is defined in the
regulations. 2 Id. Based on the plain language of the regulation, the judge concluded that
explosives and detonators must be stored in magazines that are ''bullet-resistant, theft resistant,
fire-resistant, weather-resistant, and ventilated." Id. at 276. The judge stated that, in contrast,
"blasting agents" may be stored in a "storage facility," 3 which corresponds to a Bureau of
Alcohol, Tobacco and Firearms ("BATF") Type 4 or 5 facility that does not satisfy MSHA's
definition of"magazine." Id. at 276-77.
The judge rejected Austin Powder's arguments that MSHA had incorporated into its
regulations BATF's "entire enforcement structure," which allows detonators such as those used
at the quarry that do not mass detonate,4 to be kept in a storage facility that is not a "magazine" as
defined by MSHA. Id. at 27'7-78. The judge also concluded that the preamble to the final rule
governing explosives supported MSHA's position, rather than Austin Powder's, because the
regulations do not distinguish between types of detonators, i.e., between mass detonating
detonators and non-mass detonating detonators. Id. at 278-80. Based on the clear language of
the regulations, the judge also concluded that Austin Powder was provided with fair notice of the

2

"Detonator" is defined as:
Any device containing a detonating charge used to initiate an
explosive. These devices include electric or nonelectric
instantaneous or delay blasting caps and delay connectors. The
term "detonator" does not·include detonating cord. Detonators
may be either "Class A" detonators or "Class C" detonators, as
classified by the Department of Transportation in 49 CFR 173.53,
and 173.300 ....

30 C.F.R. § 56.6000.
3

Section 56.2 ofMSHA's regulations defines "storage facility'' as, "[T]he entire class of
structures used to store explosive materials. A 'storage facility' used to store blasting agents
corresponds to a BATF Type 4 or 5 storage facility." 30 C.F.R. § 56.2.
4

Regulations issued by the Department of Transportation define "mass explosion" as
"one which affects almost the entire load instantaneously;" 49 C.F.R. § 173.SO(b)(l). A minor
explosion is one where the "effects are largely confined to the package and no projection of
fragments of appreciable size or range is to be expected." Id. at § 173.SO(b)(4).
29 FMSHRC 911

requirements for detonator storage. Id. at 280-81. Finally, the judge found that Austin Powder's
negligence was "low," and, based on his analysis of the penalty criteria, he assessed a penalty of
$40 for each of the citations. Id. at 282.

II.
Disposition
Austin Powder's main argument on review is that MSHA has improperly applied the
"magazine" requirements for explosives in section 56.6132 to non-mass detonating detonators.
A.P. Br. at 11. Austin Powder continues that the judge erred when, based on the language of the
regulation, he concluded that the regulation does not distinguish between types of detonators. Id.
at 11-12. Austin Powder argues that the judge further erred when he ignored MSHA's intent
expressed in the preamble to the publication of the final rule in the Federal Register. Id. at 1318. Austin Powder also argues that the Secretary cannot deviate from BATF regulation's on
storage of explosives without engaging in additional rulemaking. A.P. Reply Br. at 4-6. Austin
Powder contends that the citations are a reversal ofMSHA's position that was published in the
preamble to the rule, and that due process requires notice to operators before the regulation can
be enforced in such a manner. A.P. Br. at 18-22; A.P. Reply Br. at 2. Finally, Austin Powder
argues that, even if the regulatory requirements are ambiguous, the Commission should not defer
to the Secretary's interpretation of the regulations because her interpretation has been newly
articulated in an enforcement proceeding. A.P. Br. at 22-24.
The IME, whose members include manufacturers of commercial explosives and entities
that transport and store such materials at customer sites, filed a brief in support of Austin
Powder. IME argues that the judge essentially imposed the requirements for BATF Type 1 and
Type 2 magazines to Type 4 storage facilities, which are used to store non-mass detonating
detonators. IME Br. at 2. IME claims that, ifthe judge's decision is allowed to stand, it would
require replacing over 500 Type 4 storage facilities with Type 1 and Type 2 magazines at a cost
of over $90,000 per magazine. Id. at 2-3. IME argues that the judge ignored language in the
preamble to the final rule; that the decision is contrary to industry practice and MSHA' s
enforcement for over 14 years; and that Austin Powder lacked fair notice ofMSHA's intent to
alter the rule. Id. at 3-6. Finally, IME contends that MSHA is effecting a major change in
regulatory practice without adhering to due process. Id. at 8-9.
The NSSGA argues that the economic impact of the judge's decision will be "substantial''
because it will require retrofitting or replacing manyType 4 storage facilities with no
corresponding safety benefit. Mot. at 3. 5 The NSSGA further contends that the preamble of the
1993 final rule expressly permits non-mass detonating detonators to be stored in Type 4 storage

5

The NSSGA did not file a brief with the Commission, despite being given the
opportunity to do so. Therefore, the summary above is from arguments made in its motion to
participate as an amicus curiae.
29 FMSHRC 912

facilities. Id. The NSSGA concludes by arguing that MSHA is changing a longstanding
enforcement position without fair notice to operators. Id. at 3-4.
In response, the Secretary argues that the plain meaning of the regulations compels the
conclusion that all detonators must be stored in magazines that are constructed in compliance
with section 56.6132(a). S. Br. at 6-12. The Secretary further argues that Austin Powder's
contention that the regulation is ambiguous is unsupported by the language of the regulation. Id.
at 12-13. Moreover, the Secretary contends that the regulatory history of the explosives
standards, when read as a whole, supports the plain language reading of the regulation. Id. at 1422. The Secretary urges the Commission to reject the argument that MSHA had not cited
operators for violating the standard because oflack of proof Id. at 22-24. Finally, the Secretary
contends that Austin Powder had adequate notice of the standard because of its plain language,
that the regulatory preamble could not lead to a different interpretation, and that Austin Powder
had actual notice of the standard's requirements from prior litigation and a prior citation. Id. at
25-29.
The primary issue on review is whether the structural requirements for magazines in
section 56.6132 apply to the·metal container used at the Granite Mountain Quarry to store
Electro-Star and Rock Star detonators. Resolution of these issues requires a close reading of the
definitions and standards in Subpart E of Part 56, which addresses the use of explosive materials
at metal and nonmetal mines, and a review of the regulatory history. In addition, because
MSHA's rules also refer to regulations of the Department of Transportation and the BATF,
consideration must also be given to any impact of those regulations on the Secretary's regulatory
scheme.
A.

Language of the Regulation

The "language of a regulation ... is the starting point for its interpretation." Dyer v.
United States, 832 F.2d 1062, 1066 (9th Cir. 1987) (citing Consumer Prod. Safety Comm 'n v.
GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). Where the language of a regulatory provision is
clear, the terms of that provision must be enforced as they are written unless the regulator clearly
intended the words to have a different meaning or unless such a meaning would lead to absurd
results. See id.; Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989); Consolidation
Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). It is only when the meaning is ambiguous that
deference to the Secretary's interpretation is accorded. See Udall v. Tallman~ 380 U.S. 1, 16-17
(1965) (finding that reviewing body must "look to the administrative construction of the
regulation if the meaning of the words used is in doubt") (quoting Bowles. v. Seminole Rock &
Sand Co., 325 U.S. 410, 413-14 (1945)); Exportal Ltda. v. United States, 902 F.2d 45, 50 (D.C.
Cir. 1990) ("Deference ... is not in order ifthe rule's meaning is clear on its face." (quoting
Pfizer, Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984))). The Commission has held that
the meaning of a broadly-worded regulation may be determined from its plain language.
Nolichuckey Sand Co., Inc.,22 FMSHRC 1057, 1060 (Sept. 2000).

29 FMSHRC 913

Section 56.6130(a) states that"[d]etonators and explosives shall be stored in magazines."
30 C.F.R. § 56.6130(a). As the judge correctly concluded, "[t]his standard could not be written
more clearly." 29 FMSHRC at 281. Moreover, on its face, with the exception of detonator cord,
the regulatory definition of "detonator" encompasses all types of detonators, including the
detonators at issue in this proceeding. The Secretary defines "explosive materials'' as
"explosives, blasting agents, and detonators." 30 C.F.R. § 56.2 (emphasis added). 6 In section
56.6100, the Secretary defines "detonator" as "[a]ny device containing a detonating charge used
to initiate an explosive." 30 C.F.R. § 56.6100. The only exclusion from the broad definition is
"detonating· cord." Id. 7 The definition further specifies that detonators may be either Class A or
Class C, as determined by the Department of Transportation ("DOT"). Id. DOT, in turn, has
included in the first category, Class A, explosives with amass explosion hazard and inthe
second category, Class C, explosives with a minor explosion hazard. 49 C.F.R. §§ 173.SO(b)(l),
173.50(b)(4), 173.53. 8 These divisions appear to be generally consistent with the Secretary's
references to two categories of detonators: mass-detonating (or sympathetic detonators) and nonmass detonating detonators. See n.4, supra. Thus, relying on DOT regulations, the Secretary has
broadly defined "detonators" to include all types of detonators without regard to their explosive
capacity.
In subpart E, addressing the use of explosives, the Secretary defines "magazine" as "[a]
bullet-resistant, theft-resistant, fire-resistant, weather-resistant, ventilated facility for the storage
of explosives and detonators (BATF Type 1 or Type 2 facility)." 30 C.F.R. § 56.6100 (emphasis
added). 9 Section 56.6132, the regulation at issue in this proceeding, describes with even greater

6

The definitions at§ 56.2 apply to all of Part 56- Safety and Health Standards- Surface
Metal and Nonmetal Mines. 30 C.F.R. § 56.2. In addition, the subparts of Part 56 also contain
definitions applicable to the respective subpart and, if inconsistent with the general definitions,
''the definition in the subpart will apply in that subpart." Id.
7

There is also a definition of"detonator" at 30 C.F.R. § 56.2, but in this instance the
definition in Subpart E (Explosives) at§ 56.6100 applies. See n.6, supra.
8

As the judge noted, 29 FMSHRC at 276 & n. l, DOT regulations provide that Class A
explosives are now classified as "Division 1.1," and Class C explosives are classified. as
"Division 1.4." 49 C.F .R. § 173 .53. The specification sheets for the Electro-Star and Rock Star
detonators state that they are Division 1.4 explosives. 29 FMSHRC at 276; A.P. Exs. 6 and 7.
(The judge inadvertently referred to "Class C" explosives as "Class B" explosives in explaining
that Class C detonators are now classified as Division 1.4 explosives. 29 FMSHRC at 275-76.
See 49 C.F.R. § 173.53.)
9

There is a broader, less precise.definition of"magazine" in the general definitions of
Part 56, 30 C.F.R. § 56.2, that is superceded by the definition at 30 C.F.R. § 56.6100. See n.6,
supra. The preamble to the final rule publication indicated that the definition in section 56.2 was
to be deleted and replaced by the new definition in Subpart E (section 56.6100). 58 Fed. Reg.
29 FMSHRC 914

specificity the construction requirements for magazines, including the use of "nonsparking ·
material on the inside" and being ''ventilated to control dampness and excessive heating within
the magazine." Id. at§ 56;6132(a)(4), (a)(5). Part 56 broadly defines a "storage facility'' as "the
entire class of structures used to store explosive materials." 30 C.F.R. § 56.2.
We must also read these regulations in context. 10 See Morton Int 'l, Inc., 18 FMSHRC
533, 536 (ApL 1996) ("[R]egulations should be read as a whole, giving comprehensive,
harmonious meaning to all provisions."). The Secretary refers in the definition of "magazine" to
"BATF Type 1 Cir Type 2 facility."· 30 C.F.R. § 56.6100. BATF regulations, in tum, describe
"types of magazines" at 27 C.F.R. § 555.203 and specify that Type 1 magazines are permanent
magazines for the storage of high explosives, while Type 2 magazines are mobile and portable
indoor and outdoor magazines for the storage of high explosives. Id. at (a) and.(b). The
construction requirements for Type 1· and Type 2 magazines are consistent with the MSHA
requirements for magazines, including requirements for non-sparking material in the interior and
for ventilation. See generally 27 C.F.R. §§ 555.207, 555.208.
The judge concluded that a reading of the plain language of the Secretary's regulations in
the context in which they appear leads to the conclusion that all detonators and explosives must
be stored in magazines that are bullet-resistant, fire-resistant, weather-resistant, and ventilated.
29 FMSHRC at 276. The judge's reasoning and conclusion are correct.
Contrary to Austin Powder's position in this proceeding, nothing in MSHA's regulations
exempts non-mass detonating detonators (Class 1.4 explosives) from the magazine storage
requirement. In addition to the reference in the definition of "magazine" at section 56.6100 to a
BATF Type 1 or Type 2 facility, the Secretary has further referenced BATF's classification of
magazines to specify the requirements for the storage of"blasting agents," the third category of
explosive materials that is covered in the Secretary's regulations. 11 Thus, section 56.2 provides
that a "'storage facility' used to store blasting agents corresponds to a BATF Type 4 or 5 storage

69596, 69597 {Dec. 30, 1993). However, as the judge noted, this has not occurred, apparently
due to oversight. 29 FMSHRC at 278 n.4.
10

"In order to discern a standard's plain meaning, the standard must be read in context."
RAG Shoshone Coal Corp. 26 FMSHRC 75, 80 n.7 (Feb. 2004), citing Local Union 1261,
UMWA v. FMSHRC, 917 F.2d 42, 45 (D.C. Cir. 1990) ("If the first rule of; .. construction is
'Read,' the second rule is 'Read on!"'); Borgner v. Brooks, 284 F.3d 1204, 1208 (11th Cir.
2002), cert. denied sub nom. Borgner v. Florida Bd. ofDentistry, 537 U.S. 1080 (2002) (stating
that in discerning a statutory provision's plain meaning, court must construe the statute in its
entirety).
11

The Secretary defines "explosive material" to include "explosives, blasting agents, and
detonators." 30 C.F.R. § 56.2.
29 FMSHRC 915

facility." 12 By its tenns, the provisions in section 56.2 that allow the use of a BATF Type 4 or 5
storage facility apply only to "blasting agents," not to detonators. See also 30 C.F.R. §
56.6130(b) ("Packaged blasting agents shall be stored in a magazine or other facility.").
In sum, there is no provision in MSHA' s regulations that supports Austin Powder's
position that using a Type 4 storage facility to houseClass 1.4 non-mass detonating detonators is
permissible. However, Austin Powder would have the Commission read the regulatory history
associated with the Part 56 regulations and give precedence to language in the preamble that, it
argues, overrides the plain language of the regulations. Commission precedent does not support
Austin Powder's position that language in the preamble to a regulation can override the plain
language of the regulation. See Morton Int'l, 18 FMSHRC at 539 ("operators should not be held
to examining regulatory history to learn the meaning of a standard that appears to be clear on its
face"). See also Pfizer, Inc. v. Heckler, 735 F.2d at 1509 (in rejecting reliance on inflation
impact statement accompanying issuance of rule that was clear, court noted, "Where the enacting
or operative parts of a statute are unambiguous, the meaning of the statute cannot be controlled
by language in the preamble.") (quoting Assoc. ofAm. Railroads v. Castle, 562 F.2d 1310, 1316
(D.C. Cir. 1977)), Despite the clear language of the regulation, we now review the regulatory
history of the provisions at issue in part because Austin Powder and the amici claim that they
lacked sufficient notice of the magazine storage requirements for non-mass detonating
detonators.

R

Regulatory History

In evaluating Austin Powder's position and the impact of the regulatory history, 13 prior to
the publication of the proposed rule in 1988, the Secretary made clear that the "existing
standard ... states that detonators and explosives other than blasting agents shall be stored in

12

BATF regulations provide that Type 4 magazines may be used for storage of "low
explosives" and further state, "Detonators that will not mass detonate may also be stored in type
4 magazines .... " 27 C.F.R. § 55.203(d). In contrast, MSHA's regulations do not use the term
"low explosives," nor do they allow for the storage of non-mass.detonating detonators in Type 4
magazines or storage facilities. The only exception to the general requirement for storage of
explosives in Type 1 or Type 2 magazines is for blasting agents.
13

The issuance of the final regulations in 1993 addressing explosives at metal and nonmetal mines was preceded by several Federal Register publications. On November 10, 1988, the
Secretary proposed changes to the safety standards for explosives at metal and nonmetal mines.
53 Fed. Reg. 45487. On January 18, 1991, the Secretary published a final rule. 56 Fed. Reg.
2070. On April 10, 1991, the Secretary stayed the effective date for several provisions of the
final rule and reopened the rulemaking record to allow further comment. 56 Fed. Reg. 14470.
On October 16, 1992, the Secretary issued a new proposed rule. 57 Fed. Reg. 47524. Finally, on
December 30, 1993, the Secretary issued a final rule, fully reflecting the safety standards now in
effect. 58 Fed. Reg. 69596.
29 FMSHRC 916

magazines." 53 Fed. Reg. at 45491. See 30 C.F.R. § 56.6001 (1988). 14 In 1988, the Secretary
did not propose any change to the magazine storage requirement for detonators. In the January
31, 1991 final rule publication, the Secretary modified the definition of "detonator" to include
language that "detonators may be either 'Class A' or 'Class C. "' 56 Fed. Reg. at 2072. In the
explanatory material accompanying the final rule, the Secretary emphasized that "detonators and
explosives must be stored in a magazine and ... blasting agents may be stored ina magazine or
other facility." Id. at 2075 (emphasis added).
Thereafter, the Secretary issued a Program Policy Letter (PPL No. P91-IV-1) to provide
interpretations of, inter alia, "magazine" and ''storage facility'' in 30 C.F.R. Parts 56 and 57,
which became effective on November 1, 1991. 15 The PPL addressed in particular whether the
new standards prohibited the use of "Type 4 storage facilities." In stating that the new standards
did not prohibit their use, the PPL stated:
In the final rule, "storage facility'' ... refers to the entire class of
structures used to store explosive materials. "Magazine" refers to a
type of storage facility for highly volatile explosive materials.
56157.6130 requires that detonators and explosives, not explosive
materials, be stored in magazines because they are highly volatile
and subject to sympathetic detonation. Blasting agents were
specifically excluded from this provision because they are less
volatile and thus can be stored in structures other than magazines.

Id. at 1-2 (emphasis added). Thus, section 56.6130(a), then in effect, continued to provide that
"[d]etonators and explosives shall be stored in magazines." 30 C.F.R. § 56.6130(a) (1992).

14

Austin Powder was previously cited under the old pre-1993 standard for storing
detonators in magazines that did not comply with the requirements in the regulations. Austin
Powder Co~, 14 FMSHRC 620, 627 (Apr. 1992) (ALJ). In the same proceeding, Austin Powder
also contested a citation in which MSHA cited it for failing to properly ventilate a magazine in
which explosives were stored. Id. at 628. The judge affirmed the citations in both instances. Id.
at 629.
15

As noted above, the Secretary stayed implementation of parts of the final rule,
primarily for reasons unrelated to the instant case, because MSHA wanted comments on the
safety aspects of requiring ventilation of facilities or magazines used fot storing blasting agents.
56 Fed. Reg. at 14470-71. Various other stays were issued thereafter,.although most of the
provisions of the final rule that had been published were allowed to go into effect. See 57 Fed.
Reg. 47524. See generally 30 C.F.R. Subpart E (1992).

29 FMSHRC 917

On October 16, 1992, the Secretary proposed to issue new definitions of "magazine" and
"storage facility" to clarify usage of the terms in MSHA regulations. ''The result is to make clear
that MSHA's use of the term 'magazine' corresponds to BATF's use of Type 1 and Type 2
storage facilities." 57 Fed. Reg. at 47526. MSHA further proposed to define "storage facility" as
"the entire class of structures used to store explosive materials" and, when used specifically to
store blasting agents, it referred to a BATF Type 4 or 5 structure. Id. In further explaining the
differences between magazines and storage facilities, the Secretary stated that "'magazine' refers
to a type of storage facility for highly sensitive explosive materials such as explosives and
detonators which are subject to sympathetic detonation." Id. The Secretary concluded by stating
that "because blasting agents are not as highly sensitive as detonators and explosives," they did
not have to be stored in magazines or facilities that met the construction and housekeeping
criteria of magazines. Id. (emphasis added). Nowhere in the Federal Register publication of the
proposed rule did the Secretary state that he was proposing to change the existing standard, 30
C.F.R. § 56.6130(a) (1992), which required that all detonators, including non-mass detonating
detonators, be stored in magazines.
In the 1993 final rule publication, consistent with the 1992 proposed rule, the Secretary
added a definition of "magazine" to section 56.6000 "for the storage of explosives and detonators
(BATF Type 1 or Type 2 facility)." 58 Fed. Reg. at 69598. The Secretary responded to several
commenters that MSHA had previously used the terms "magazine" and "storage facility''
synonymously. Id. In distinguishing between a magazine and storage facility, the Secretary
clearly stated that "paragraph (a) of§§ 56/57.6130 requires that detonators and explosives, not
blasting agents, be stored in magazines; while ... blasting agents may be stored either 'in a
magazine or other facility."' Id. While the Secretary further explained that the reason for
differing treatment of blasting agents was because explosives and detonators were "highly
sensitive explosive materials ... subject to sympathetic detonation," id. at 69599, 16 there is no
statement in the preamble that the Secretary sought to revise the well-established magazine
storage requirement for explosives or detonators, including ones that are not mass-detonating.

Further, in the preamble to the 1993 final rule, the Secretary noted that several
commenters objected to the use of the term "storage facility'' because it precluded the storage of
non-mass detonating detonators, as permitted by BATF regulations. Id. Accordingly, those
commenters suggested deleting use of the term. In response, the Secretary emphasized that
MSHA's final rule "conforms to BATF's construction criteria." Id. However, the Secretary
noted differences in MSHA's regulations and those ofBATF because MSHA utilizes the term
"storage facility," which corresponds to BATF Type 4 and 5 facilities. Id. In contrast to BATF's
more limited use of Type 1 and 2 facilities for storage of"highly sensitive explosives," "MSHA's
definition of 'magazine' does not prevent the use of magazines to store the full range of
16

Although Austin Powder relies on this reference to detonators ''which are subjectto
sympathetic detonation," we agree with the judge's conclusion that this language simply offers
an additional explanation as to why detonators and explosives must be stored in magazines
meeting rigorous construction criteria. 29 FMSHRC at 279.
29 FMSHRC 918

explosive materials." Id.· .Significantly, in the following section addressing explosive materials
storage facilities (sections 56/57.6130), the Secretary stated that the rule in effect, by virtue of the
1991 final rule publication, "required detonators and explosives other than blasting agents to be
stored in magazines." Jd. 17

In agreement with the judge, 29 FMSHRC at 280, we conclude that nothing in the
regulatory history indicates that the Secretary's rules distinguish between mass-detonating
detonators and detonators that are not subject to mass detonation. Rather, the Secretary clearly
delineated the storage requirements for explosives and detonators versus blasting agents, with the
latter category of explosive materials being subject to the least stringent storage requirements.
Moreover, neither the storage requirements for detonators in section 56.6130(a) nor the magazine
construction requirements in section 56.6132( a) were under consideration for amendment when
the preamble language appeared in the Federal Register publication upon which Austin Powder
relies. In short, we cannot agree that the regulatory history leads to the conclusion that Austin .
Powder was not required to store the Electro-Star and Rock Star detonators in magazines. Even
ifthe preamble were unclear as to the regulations at issue, that language cannot override the clear
requirements of the regulations. See cases cited p. 8, supra.
C.

Fair Notice of the Requirements of the Regulation

The heart of Austin Powder's due process argument is that "the company lacked fair
notice of the Secretary's intention to depart from the [BATF's] explosive storage standards and
definitions ... that she indicated in the 1993 rulemaking were being adopted.". A.P. Reply Br. at
2. However, based on our determination that the language of the standard is plain, we conclude .
that Austin Powder had adequate notice of the storage requirements for detonators. In this
regard, the Commission has held that when "the meaning of a standard is clear based on its plain
language, it follows t~at the standard provided the .operator with adequate notice of its
requirements." LaFarge Constr. Materials, 20 FMSHRC 1140, 1144 (Oct. 1998); see also
Bluestone Coal Corp., 19 FMSHRC 1025, 1029 (June 1997) (holding thatadequate notice
provided by unambiguous regulation). Nor can we conclude that, based on the regulatory history
of the explosive standards in Part 56, Austin Powder could reasonably believe that section
56.6130 was being revised to eliminate the requirement that all detonators be stored in magazines
that met the criteria in section 56.6132(a).
Further, Austin Powder contends that the enforcement history of the magazine storage
requirement for detonators supports its position that the citations at issue represent a change in
MSHA's enforcement of section 56.6130 and that it lacked fair notice ofMSHA's position.
Austin Powder's contention is essentially an estoppel argument that it sought to bolster by trial
17

The preamble further noted that the intervening stays of the rule only affected the first
sentence of section 56/57. 6130(b), which addressed the storage requirements for packaged
blasting agents. 58 Fed. Reg. at 69599. See 30 C.F.R. § 56.6130(b) (1992) (accompanying
note).
29 FMSHRC 919

testimony that it had undergone prior inspections· and had not been cited for storing detonators in
similar storage facilities. However, the Commission has long held that an inconsistent
enforcement pattern by MSHA inspectors does not prevent MSHA from proceeding under an
application of the standard that it concludes is correct. See Nolichuckey Sand, 22 FMSHRC at
1063-64 (citations omitted). 18 Thus, even if the record supported the assertion that MSHA had
failed to enforce section 56.6130 as written, 19 the Secretary should not be prevented from
proceeding to enforce the regulation as she has in the present case.
D.

Other Arguments

In addition to notice~ Austin Powder raises other arguments in response to the judge's
decision. Austin Powder and the amici challengeMSHA's enforcement of the magazine
requirements in section 56.6132 to storage facilities containing detonators because of the costs
involved. However, there is a lack of evidence to support any specific cost figure. 20 Moreover,
the Commission has generally rejected economic reasons as grounds for failing to comply with
regulatory requirements. See Consolidation Coal Co., 22 FMSHRC 328, 333 (Mar. 2000)
(operator engaged in aggravated conduct when it subordinated its responsibility to clean up coal
accumulation to its desire to complete construction); Jim Walter Res., Inc., 19 FMSHRC 1761,
1770 (Nov. 1997) (stating that aggravated conduct was shown when an operator decided to avoid

18

Austin Powder's reliance on the Commission's decision in Alan Lee Good, 23
FMSHRC995, 1005 (Sept. 2001), to support its position that the Commission should consider
MSHA's enforcement history to·determine whether an operator had fair notice of the
requirements of a standard, A.P. Reply Br. at 11, is misplaced. In Good, the Commission, in
applying the "reasonably prudent person standard" to the Secretary's interpretation of an
ambigu,ous regulation, remanded a case for an examination ofMSHA's enforcement history in
order to determine whether the operator had adequate notice of the regulatory requirements. 23
FMSHRC at 1000, 1004-06, 1010. Here, in contrast, the language of the regulation is plain.
19

The testimony of Kris Bibey, an Austin Powder safety official, that Austin Powder had
numerous other storage facilities for detonators that had been inspected and not cited was
conclusory at best. Tr. 109-10. Location manager John Mc Cloy testified that BATF, not MSHA,
had previously inspected container No. 8 and had no problem with the way it was constructed.
Tr. 148-52.
20

IME's statement in its briefthat "the total cost of compliance" would be in excess of
$90,000 per magazine has no record basis. IME Br. at 2. Indeed, there was testimony from an
Austin Powder official that the storage facilities were freight containers that haci been retrofitted.
Tr. 150-51. See G. Exs. 9-1 to 9-7. Because of this and other evidence, the monetary estimate in
IME's brief appears to be without foundation. See also S. Resp. Br. at 24-25 n.9, citing G. Ex. 5
at 3 (MSHA inspector stating in citation that it was terminated when "[h]oles were drilled in the
plywood that covered the vents in magazine [No.] 8").
29 FMSHRC 920

compliance with the standard in order to continue production). Austin Powder's and· the amici?s
economic defense stands on no better foundation in this proceeding.
Finally, Austin Powder argues in its reply brief that the BATFregulations preempt
MSHA regulations in the area of explosives. A.P. Reply Br. ~t 1O~11. However, Austin·
Powder's preemption argument is a new theory in the case that was not raised before the judge.
Beech Fork ProceSsing, Inc., 14 FMSHRC 1316, 1321 (Aug. 1992). See 30 U.S.C.
§ 823(d)(2)(A)(iii) ("Except for good cause shown, no assignment of error by any party shall rely
on any question of fact or law upon which the administrative law judge had not be.en afforded an
opportunity to pass."). fu any event, Austin Powder failed to raise the issue in its petition for
discretionary review. "Under the Mine Act and the Commission's procedural rules, review is
limited to the questions raised in the petition and by the Commission sua sponte." Wyoming
Fuel Co., 16 FMSHRC 1618, 1623 (Aug. 1994), ajf'd, 81F.3d173 (10th Cir. 1996) (table) citing
30 U.S.C. §§ 823(d)(2)(A)(iii) and (B); 29 C.F.R. § 2700.?0(f) (1993). In these circumstances,
we cannot consider the issue on review. 21 However, we note that Austin Powder is not
foreclosed from raising the preemption issue in a future case or requesting that MSHA undertake
rulemak:ing to address that issue.

III.
Conclusion
On the basis of the foregoing, we affirm thejudge's decision in all respects.

The Secretary filed a motion to s~e this portion of Austin Powder's brie£ Mot. at 3.
Commissioner· Jordan would grant the Secretary's motion. Commissioner Young would hold
that it is not necessary to rule on the motion, because, based on the Commission's procedural
rules, the argument is not properly before us and has not been considered in disposing ofthe
instant case.
21

29. FMSHRC 921

Chairman Duffy, concurring:
I concur with my colleagues in affirming the judge's decision, however, I do so with great
reluctance. At the Commission's decisional meeting I indicated that I would dissent in this case
and hold that the judge erred in finding a violation of the standard. Since that time I have
concluded that court and Commission precedent, particularly the decisions in Pfizer, Inc. v.
Heckler, 735 F. 2d 1502, 1509 (D.C. Cir. 1984), and Morton Int'l, Inc., 18 FMSHRC 533, 536
(Apr. 1996), argue strongly for the proposition that the clear language of the standard trumps
contradictory language in the preamble. 1
While I agree with my colleagues that the regulations themselves do not distinguish
between mass-explosion detonators and non-mass explosion detonators, I disagree that the
preamble to the 1993 final rule supports the proposition that class 1.4 explosive materials, i.e.,
non-mass explosion detonators, must be stored in Bureau of Alcohol, Tobacco and Firearms
("BATF") Type 1 or Type 2 storage facilities. Indeed, as I read the preamble, the oppositeis
true.
Regulatory agencies are loath to admit error, particularly in the rulemaking process. They
are especially reluctant to modify the language of a proposed rule even in light of expert public
comment supporting a change. This is understandable; an agency puts a great deal of time and
effort into the preparation of a proposed rule and would not issue a rule it believed to be
defective. However, it seems clear to me that when MSHA proposed in 1988 to drop the
definition of "magazine" in its regulations and began to use the terms "magazine'' and "storage
facility" interchangeably (53 Fed. Reg. 45487, 45490 (Nov. 10, 1988)), the agency set in motion
a wealth of confusion that persists to this day.

of

My change opinion will come as something of a surprise to my colleagues since
under the dual constraints of the Government in the Sunshine Act, and a reduced roster of
Commissioners, we are not allowed to discuss cases unless we do so at an open meeting. Under
the Mine Act, the Commission is intended to be composed of five members, with three members
constituting a quorum. 30 U.S.C. § 823(a), (c). Under those circumstances any two
Commissioners can discuss the merits of a case without invoking the public meeting
requirements of the Sunshine Act, 5 U.S.C. § 552b. However, when the Commission is reduced
to three members as it is currently, any two Commissioners constitute a quorum. 30 U.S.C.
§ 823(c). Accordingly, the Sunshine Act constraints take effect, and substantive discussions
among any two members must be carried out in a public meeting with advance notice of its time
and place. 5 U.S.C. § 552b(b), (e)(l). The Commission has not been at full strength since the
expiration of Commissioner Beatty's term in August of2004, and has been reduced to three
members since the expiration of Commissioner Suboleski's term in August of2006. Needless to
say, these circumstances severely restrict, indeed foreclose, the opportunity for the informal give
and take necessary to reach consensus among the Commission's members.
I

29 FMSHRC 922

From the time that proposed rule was issued in 1988, the regulatory history demonstrates
that commenters consistently warned MSHA that its new regulatory approach was inconsistent
with longstanding policy adopted by BATF, the vanguard federal agency for the regulatie>n of
explosives. As I understand it, the confusion arose because BATF defines "magazines" in terms
of what can be stored in them (Types 1 through 5), while MSHA began to define various classes
of "storage facilities" in terms of their construction characteristics as specified by BATF criteria.
MSHA framed the issue in the agency's preamble to the final rule issued in 1993:
·A few comm.enters objected to the use of the term "storage
facility." These commenters found the use of the term "storage
facility" confusing in that it precluded the storage. of non-mass .
detonating detonators as permitted by 27 CFR part 55, subpart K of
the BATF regulations. They suggested deleting the term "storage
facility" to be consistent with BATF regulations.
58 Fed. Reg. at 69596, 69599 (Dec. 30, 1993).
What follows in the preamble cannot be read for anything other than an attempt by
MSHA to counter the accusation that its standards were inconsistent with those adopted and
enforced by BATF:
BATF Type 1 facilities are permanent magazines used for the
storage of high explosives; ... BATF Type 4 facilities are
magazines used for the storage of low explosives, blasting agents
and non-niass detonating detonators; .... MSHA's final rule does
not require BATF Type 4 storage facilities to be bullet-resistant.
The only storage facilities that need to be bullet-resistant are
magazines (BATF Type 1 and 2 facilities) used for the storage of
highly sensitive explosive material such as explosives and
detonators which are subject to sympathetic detonation. rzi

In summary, MSHA believes that the definition of "storage
facility" as clarified by this final rule, provides mine operators and
miners with objective criteria, consistent with BATF, relative to
storage requirements, for the entire range of explosive materials.

Id.

2

"Sympathetic detonation" and "mass-detonation" are synonymous.
29 FMSHRC 923

Thus, if the BATF standards allow non-mass detonation detonators to be stored in the
Type 4 magazines, and MSHA's standards are "consistent" With BATF standards~ it is easy to
understand why Austin Powder and others could have concluded that the detonators referred to in
section 56.6130(a) are mass explosion detonators and not non-mass explosion detonators.
Moreover, on the basis of the brief submitted on review by the Institute of Makers of
Explosives ("IME"), I strongly suspect that the position articulated by MSHA in this proceeding
constitutes an abrupt departure from longstanding policy regarding the storage of non-mass
detonating detonators. If anyone can attest to how explosives have been regulated under BATF,
MSHA, and DepartmentofTransportation standards, it is IME. 3 Nevertheless, since the standard
refers to "detonators" without clarification, I must reluctantly agree that Austin Powder and IME
have relied upon the contradictory evidence in the preamble of the rule to their detriment. 4
Lastly, as to Austin Powder's argument that BATF regulations pre-empt MSHA's
regulations as they apply to explosives, I, too, note that the argument was not raised before the
judge nor in the operator's petition for review. I would, however, take judicial notice of the fact
that MSHA's sister agency, the Occupational Safety and Health Administration, recently
declared that it was ceding the field of explosives regulation and enforcement to BATF. See 72
Fed. Reg. 18792, 18796 (Apr. 13, 2007). I would encourage MSHA to consider a similar path if
for no other reason than to assure that standards are consistent and enforced by the federal agency
with preeminent expertise in this area.

3

In its October 16, 1992, notice of proposed rulemak:ing, MSHA referred to IME as an
association "created to provide technically accurate information and recommendations
concerning explosive materials and to serve as a source of reliable data about their use." 57 Fed.
Reg. 47524, 47525 (1992) (quoting favorably from the self-description ofIME).
4

The. phrase "regulatory bait and switch" comes to mind. If this issue had been raised in
a court of appeals' review of the rulemak:ing proceeding, the regulation may have been
invalidated because of the inconsistency between its language and the preamble. See Kennecott
Utah Copper Corp. v. Dep 't ofInterior, 88 F.3d 1191, 1220 (D.C. Cir. 1996).
29.FMSHRC.924

Distribution
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4 740 Corridor Place, Suite D
Beltsville, MD 20705
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Gilbert P. Sperling, Esq.
Institute of Makers of Explosives
1120 19th Street, N.W., Suite 310
Washington, D.C. 20036
Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

29 FMSHRC 925

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

December 12, 2007
SECRETARY OF LABOR,
MINE SAFETY ANO HEALTH
ADMINISTRATION (MSHA)

Docket No. SE 2008-93-M
A.C. No. 38-00535-128168

v.
LANIER CONSTRUCTION COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) ("Mine Act"). On November 12, 2007, the Commission received from
Lanier Construction Company ("Lanier") a motion seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On October 3, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued proposed penalty assessments to Lanier covering five citations that were
issued in July. In its motion, Lanier states that its office manager mistakenly paid the proposed
penalties for the five citations that it had intended to contest. Lanier further asserts that, on
November 9, it learned of the mistake when it investigated the status of one of the citations that
was the subject of a special investigation pursuant to section l lO(c) of the Mine Act, 30 U.S.C.
§ 820(c). In response, the Secretary states that she does not oppose Lanier's request to reopen the
proposed penalty assessment proceeding.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
29 FMSHRC 926

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to ·
reopen final section 105(a) orders, the Commission hai found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Lanier's request, in the interests of justice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for Lanier's
failure to timely contest the penalty proposals and whether relief from the fmal order should be
granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the
Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

29 FMSHRC 927

Distribution·
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4 740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209'."2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

29 FMSHRC 928

FeDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW .
SUITE9500
WASHINGTON, DC 20001

December 14, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. CENT 2008-22-M
A.C. No. 16-00358-119151

v.
NORTH AMERICAN SALT COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) ("Mine Act"). On September 24, 2007, the Commission received from
North American Salt Company ("North American Salt") a letter seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On May 30, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to North American Salt covering 31 citations.
In its letter, North American Salt states that it attempted to contest one of the citations, No.
6240760, by checking the pertinent box on the assessment form. It also submits a letter allegedly
sent to an MSHA official dated June 11, 2007, stating that it wanted to contest the citation. In
response, the Secretary states that, although she has no record of receiving the assessment form,
she does not oppose reopening the proceeding.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
29 FMSHRC 929

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis ofinadvertence or mistake. See 29 C.F.R.
§ 2700. l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a faiJure to
timely respond, the case may be reopened and appropriate proceedings on the merits.permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed North American Salt's request, in the interests of justice, we remand
this matter to the Chief Administrative Law Judge for a determination of whether good cause
exists for North American Salt's failure to timely contest the penalty proposal and whether relief
from the final order should be granted. If it is determined that such relief is appropriate, this case
shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700.

~~

.Michael~-~

29 FMSHRC 930

Distribution:
Scott Fountain
North American Salt Company
P.O. Box 10
Lydia, LA 70569
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Boulevard, Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Boulevard, 25th Floor
Arlington, VA 22209-3939 Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D. C. 20001

29 FMSHRC 931

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

December 14, 2007

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

Docket No. CENT 2008-40
A.C. No. 29-00096-121569

V.

CHEVRON MINING, INC.

BEFORE: Duffy, Chainnan; Jordan and Young, 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. (2000) ("Mine Act"). On November 7, 2007, the Commission received from
Chevron Mining, Inc. ("Chevron") a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On March 29, 2007, following an inspection, the Department of Labor's Mine Safety and·
Health Administration ("MSHA") issued a citation and order which Chevron.challenged by filing
a notice of contest on April 26. On July 10, 2007, MSHA issued proposed penalty assessments
for the citation and order. In its motion, Chevron states that its safety manager mistakenly
thought that, because Chevron had contested the citation and order, it did not need to contest the
proposed penalties. Chevron further states that due to its safety manager's mistake, it did not

29 FMSHRC 932

timely process the assessment form. On October 26, Chevron was notified of its delinquency in
paying the proposed penalties, and it filed this motion. In response, the Secretary states that she
does not oppose Chevron's request to reopen the proposed penalty assessment proceeding. 1
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable bythe Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Chevron's request, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Chevron's failure to timely contest the penalty proposal and whether relief from the final order
should be granted. If it is determined that such relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Mich

1

The Secretary states that the contest proceedings involving the underlying citation and
order were docketed as CENT 2007-189-R and 2007-190-R.
29. FMSHRC 933

Distribution:
David M. Arnold, Esq.
Chevron Mining, Inc.
116 Inverness Drive East, Suite 207
Englewood, CO 80112
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100. Wilson Boulevard, Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U. S. Department of Labor
1100 Wilson Boulevard, 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D. C. 20001

29 FMSHRC 934

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

December 14, 2007 ·
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. KENT 2008-65
A.C. No. 15-18267-115559

V.

MANALAPAN MINING COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) ("Mine Act"). On October 19, 2007, the Commission received from
Manalapan Mining Company ("Manalapan") a letter seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On April 13, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to Manalapan. In its letter, Manalapan asserts
that it failed to submit its contest within 30 days of receipt because the assessment form "may
have been misplaced" or there was "some confusion with the mail." Although the Secretary does
not oppose reopening the proposed penalty assessment, she offers mailing receipts that appear to
indicate that Manalapan contested the penalty assessment beyond the 30-day time limit.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
29 FMSHRC 935

Federal Rules of Civif Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Manalapan's request, we are unable to determine from the record
whether reopening this matter is warranted. In the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Manalapan' s failure to timely contest the penalty proposal and whether relief from the final order
should be granted. We direct Manalapan to provide a detailed explanation to the judge setting
forth the reasons for its failure to timely contest the proposed penalty proposal. If it is
determined that reopening is appropriate, this case shall proceed pursuant to the Mine Act and
the Commission's Procedural Rules, 29 C.F.R. Part 2700.

EUffY:cl1aifiilllll
"~
~

Michael

· . . ··

. .

~

Distribution:
Jim Brummett, Safety Director
Manalapan Mining Co., Inc.
8174 East Highway 72
Pathfork, KY 40863
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Boulevard, Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Boulevard, 25th Floor
Arlington, VA 22209-3939 Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D. C. 20001

29 FMSHRC 937

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

December 14, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEYA 2008-82
A.C. No. 46-01968-112670

v.
CONSOLIDATION COAL COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) ("Mine Act"). On October 25, 2007, the Commission received from
Consolidation Coal Company ("Consol") a motion requesting that the Commission reopen a
penalty assessment that may have become a final order of the Commission pursuant to
section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On March 6, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to Consol covering several citations and orders.
fu its motion, Consol claims that on March 16, 2007, it sent a letter contesting the citations and
orders at issue to MSHA's Civil Penalty Compliance Office located in Arlington, Virginia. A
copy of the March 16 letter is attached to Consol's motion. Consol also submits a copy of a
check dated March 21, 2007, that it states was separately sent to MSHA as partial payment for
those citations contained on the proposed penalty assessment form that it did not contest. The
Secretary states that although she does not oppose Consol's request to reopen the penalty
assessment, she has no record of receiving the contest of the proposed penalty assessment at
MSHA's Arlington office.
29 FMSHRC 938

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105{a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89{May1993) {"JWR"). In evaluating requests to
reopen final section 105{a) orders, the Commission has found guidance in Rule 60{b) of the
Federal Rules of Civil Procedure under which, for example, a party cou1d be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R.
§ 2700.l{b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, ifthe defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
On the basis of the present record, we are unable to evaluate the merits of Consol's
position. It is unclear from the record whether the proposed civil penalties at issue became final
orders because MSHA erred in processing Consol's contest or because of some inadvertence on
the part of Consol. In the interests of justice, we remand this matter to the Chief Administrative
Law Judge for a determination of whether Consol failed to timely contest the penalty proposal
and, if so, whether good cause exists for granting relief from the final order. See Penn American
Coal, L.P., 23 FMSHRC 1021 (Sept. 2001) {remanding to determine whether relief from final
order was appropriate where operator alleged a processing error by MSHA). If it is determined
that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700.

29 FMSHRC939

Distribution:
R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, ·Suite 1340
401 Liberty A venue
Pittsburgh, PA 15222

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Boulevard, Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Boulevard, 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D. C. 20001

29 FMSHRC 940

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

December 19, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. LAKE 2005-129
LAKE 2006-28

v.
THE AMERICAN COAL COMPANY

- --

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

DECISION
BY THE COMMISSION:
In these consolidated civil penalty proceedings arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) ("Mine Act" or "Act"), Administrative Law.
Judge Jerold Feldman upheld two citations against The American Coal Company ("American"),
for violations of the underground bituminous coal mine escapeway requirements of 30 C.F.R.
§ 75.380(a). 1 29 FMSHRC 252 (Mar. 2007) (ALJ). American petitioned for review of the
judge's decision, which the C9mmission granted. 2

1

Section 75.380(a) requires that underground coal mine operators designate and provide
as escapeways at least two separate and distinct travelable passageways that meet the extensive
requirements of section 75.380.
2

American also moved for oral argument in this case. That motion is hereby denied.
29 FMSHRC 941

I.
Factual and Procedural Background

In 2005, American was mining its Sixth and Seventh North longwall panels at its Galatia
Mine in Saline County, IL. Id. 254; Tr. 22; Jt. Stip. 8 & 9. The panels of coal, approximately
6-1/2 feet high and 1,000 feet long, were cut by the longwall's shearer, which would cycle from
the longwall headgate to the tailgate and back again. 29 FMSHRC at 255. Coal would fall on to
the longwall pan line, also known as the face conveyor, which ran parallel to the face and moved
the coal towards the headgate. Id.; Gov't Ex. 3.
Access to the panels was provided by three parallel entries at the headgate and three
parallel entries at the tailgate of the longwall. 29 FMSHRC at 255. The headgate entries of the
Sixth North longwall panel later became the tailgate entries for the Seventh North longwall
panel. Id. at 254; Tr. 362. Each entry was approximately 18 feet wide and 7 feet high. 29
FMSHRC at 255; Tr. 383.
For each panel, the entry farthest from the longwall was headgate Entry No. l, the intake
air entry. Tr. 104, 107; Gov't Ex. 4. Pursuant to section 75.380, American had designated Entry
No. 1 as the secondary of the two passageways to be used to exit the section in emergencies. 29
FMSHRC at 255; Tr. 104, 106; Gov't Ex. 4. The primary escapeway was the middle headgate
entry, Entry No. 2. 29 FMSHRC at 255; Tr. 106-07; Gov't Ex. 4.
The closest entry to the longwall was headgate Entry No. 3, also called the belt entry. Tr.
107-08; Gov't Ex. 4. While Entry No. 3 was not a designated escapeway, it would nevertheless
be used by workers leaving the face via the headgate to reach the other entries via crosscuts. Tr.
101-05, Gov't Ex. 4. On one side of Entry No. 3 was the coal intersected by those crosscuts
(hereinafter "the rib side"), while on the other was the solid block of coal to be cut by the shearer
on subsequent longwall cycles (hereinafter "the block side"). Gov't Exs. 3, 4.
Much of the width of the No. 3 entry heading immediately outby the face was occupied
by essential longwall equipment, specifically and in order: (1) the end of the pan line that
connected perpendicularly to the stage loader, and from which the coal from the face was
deposited into the stage loader; (2) the stage loader, which would crush the coal and move it
outby the entry, depositing it onto the conveyor belt; and (3) the conveyor belt to transport the
coal to the surface. 29 FMSHRC at 255; Tr. 91-94; Gov't Ex. 4. The pan line was
approximately 3 feet wide where it connected to the tailpiece of the stage loader, while the width
of the stage loader varied according to its component parts. 29 FMSHRC at 255; Tr. 388, 423.
At its widest point, the stage loader was 13 feet wide, including the motor connected to it on the
rib side, which powered tlie pan line. 29 FMSHRC at 255; Tr. 109, 117-19, 388; Gov't Ex. 4.
The stage loader reached a height of 4-1/2 feet, approximately 2-112- feet below the roof of the
entry. 29 FMSHRC at 255-56.

29 FMSHRC 942

The stage loader would normally remain stationary in the middle of the entry, and thus
leave pathways on either side of it that narrowed to no less than 2-112 feet. Id; Tr. 382; Gov't Ex.
5. Because the pan line where it connected to the stage loader obstructed access between the face
and the block side of the stage loader, use of the pathway on the opposite side of the stage loader,
the rib side, was necessary for unobstructed travel around the stage loader. 29 FMSHRC at 258;
Gov't Exs. 4, 5.
A stage loader, however, does not always remain stationary and may migrate due to the
alignment of the longwall shearer while it is cutting coal. 29 FMSHRC at 255; Tr. 136-37.
Here, cutting coal deeper at the tailgate area of the Sixth and Seventh North longwall panels
would gradually cause the stage loader to migrate, over the course of several shifts, from the
center of the No. 3 entry, farther away from the block side and closer to the rib side of the entry.
29 FMSHRC at 255, 256.
The adverse effect such migration: could have on miner travel through the No. 3 entry was
noticed by MSHA on May 11, 2005, when Inspector Steven Miller issued Citation No. 7581075
to American. 29 FMSHRC at 256-57. The citation, charging a violation of section 75.380(a),
alleged that the migration of the stage loader to near the rib prevented "[a] safe egress route ...
off or on" to the longwall face, as miners could only access or leave the face by climbing over the
stage loader. Gov't Ex. 11. In order to terminate the citation, American had to make longwall
adjustments. 29 FMSHRC at 257. Citation No. 7581075, which is not at issue in this case, was
terminated seven days later. 3 Gov't Ex. 11. ·American did not contest the citation. 29 FMSHRC
at 257.
On June 7, 2005, MSHA Inspector Arthus Wooten witnessed a miner climb over the top
of the stage loader in the vicinity of the pan line motor, while the motor was running, in order to
access the Sixth North longwall face. Id. at 257; Tr. 121-22, 128. In that instance the stage
loader had again migrated towards the rib, such that it was only 3 to 5 inches away from it. 29
FMSHRC at 257; 'Tr. 117, 148. Thus, the stage loader prevented any miner from traveling
around it on that side of the entry. 29 FMSHRC at 257; Tr. 241-42.
Consequently, Inspector Wooten issued Citation No. 7581904 to American, again
alleging a violation of section 75.380(a) because the stage loader migration had prevented "[a]
safe egress/escape/travelway ... on and off the 6th[] North long wall face as required." 29

3

To counteract stage loader migration from centerline to rib, the longwall shearer must
be adjusted to cut deeper into the headgate area to cause the stage loader to migrate toward the
solid block of coal until it is has returned to the center of the entry. 29 FMSHRC at 256. Just as
the initial migration of the stage loader will take place gradually over several shifts, so too does
the redirection back to the center. Id.
29 FMSHRC 943

FMSHRC at 257; Gov't Ex. 2. The citation was designated significant and substantial ("S&S"), 4
due to the muddy conditions in the headgate area, which the inspector believed made it more
likely that a miner would slip and fall while climbing over the stage loader. 29 FMSHRC at 257.
In addition, at that time the tailgate was not considered a travelable alternative route to the
designated escapeways because of unsupported roof in the tailgate area. Id.; Tr. 132.5
By September 8, 2005, the longwall had moved to the Seventh North section, where
Inspector Miller witnessed a miner climbing over the stage loader, this time over its crushing
mechanism. 29 FMSHRC at 258; Tr. 273-74. Again, the miner could not have gone around the
stage loader on the rib side of the entry, because the stage load~r had migrated towards the rib
side, with the pan line motor being within 10 inches of the rib. 29 FMSHRC at258; Tr. 279-80.
Corwequently, Inspector Miller issued a third citation to American for a violation of section
75.380(a), No. 7581788, alleging that "[a] safe egress route was not provide[d] off or on the 7th
North Longwall Face as required." 29 FMSHRC at 258; Gov't Ex. 10, at 1. This citation was
also designated as S&S because of muddy conditions in the headgate area. 29 FMSHRC at 258;
. Tr. 286-87; Gov't Ex. 10, at 1.
The Secretary proposed a penalty of $3 75 for Citation No, 7581904 and a penalty of $524
for Citation No. 7581788. 29 FMSHRC at 257, 258. American contested both penalties on the
ground that it had not violated section 75.380(a). Id. at 258.
At trial, Paul Kraus, American's Manager of Health and Safety, explained that the coal
seam at the longwall sections in the Galatia Mine not only rolls, but dips from the headgate to the
tailgate. Id. at 256. Kraus explained that, consequently, the longwalls there are normally aligned
by American to mine the headgate approximately 50 feet further ahead than the tailgate, so that
the deeper cuts at the headgate keep the stage loader in the center of the entry .. Id. At the time of
the citations, however, there were adverse roof conditions in the tailgate area of the sections
being mined. Id. Roof falls there required that American make deeper cuts in the tailgate area in
order to create a .clear tailgate entry as quickly as possible. Id. Kraus thus attributed the stage
loader migration to American's having to make those deeper cuts. Id.

4

The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C.
§ 814(d)(l), 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." Because
Inspector Miller did not observe any miner near the stage loader at the time of the first citation,
he did not designate that violation as S&S. 29 FMSHRC at 256-57; Tr. 279.
5

If both passageways designated by an operator as escapeways run from the headgate, as
was the case here, and conditions at a longwall face make it impossible for miners working there
to exit via the headgate of the longwall, miners are supposed to use the tailgate as an alternative
route to reach a designated escapewaypursuant to 30 C.F.R. § 75.384. 29 FMSHRC at 257; Tr.
213, 333, 367.
29 FMSHRC 944

In his decisiOn, the judge viewed this case as one in which he needed to decide the point
at which, under the terms of section 75.380, the designated escapeway off the longwall section
began. Id. at 254. The judge ruled that the escapeway started at the face in this instance. Id. at
260-62. He did so by applying what he understood to be the plain meaning of the standard's
requirement that escap.eways are to run "from each working section." Id. He concluded that the
language meant that escapeways were required to run not only from the loading point of a
working section, as American argued, but were to also include the remainder of the working
section. Id. at 261. He further concluded that in both instances when the stage loader migrated
to within less than one foot from the rib, miners were denied the "assurance of passage" section
75.380(d)(l) requires. Id. at 259. 6 The judge held that American's receipt of an earlier citation
provided it with notice that section 75.380(a) applied in the later instances, further found that
both violations were S&S, and assessed the $899 in total penalties requested by the Secretary for
the two citations. Id. at 262-63.
II.

Disposition
American has.limited its appeal to the findings of violation. As it did below, American
argues that the area in which the stage loader sat was not within the scope of the escapeway
requirement. According to American, under the plain meaning of section 75.380, an operator is
only obligated to provide an escapeway "from each working section," and ''working section" is
defined in the Mine Act to start at the loading point of the section, so any point inby the loading
point is not within the ambit of the escapeway requirement. Am. Br. at 2-6. Since the loading
point was the belttailpiece, and the stage loader was inby it, American argues that itwas
inappropriate to cite it for a violation of section 75.380 because the stage loader had migrated and
blocked the rib side pathway. Id. at 6-7.
The Secretary responds that in order to give effect to the purpose of section 75.380, the
standard must be interpreted to require that the route to entries necessary to access designated
escapeways must not be blocked or impeded to such an extent that the escapeway is rendered
inaccessible. S. Br. at 11-12. The Secretary relies on the regulatory requirement that the
designated escapeways be "travelable" to support this interpretation. Id. at 14-15. She also
maintains that, although the judge's approach to interpreting section 75.380 is slightly different
than hers, both approaches are consistent with the language and purpose of section 75.380. Id. at
12-23.

6

The judge also noted American's failure to report the migration for correction in its preshift or on-shift reports. 29 FMSHRC at 263.
29 FMSHRC 945

A.

Interpretation ofSection 75.380

The requirement that underground bituminous coal mines have designated escapeways
was imposed by section 317(f) of the Federal Coal Mine Health and Safety Act of 1969, 30
U.S.C. § 801 et seq. (1976) ("Coal Act"), and was carried over without change to section 317(f)
of the Mine Act, 30 U.S;C. § 877(f). With regard to the requirement, section 75.380 states in
pertinent part:
(a) Except in situations addressed in §75.381, §75.385 and
§75.386, at least two separate and distinct travelable passageways
shall be designated as escapeways and shall meet the requirements
of this section.
(b)(1) Escapeways shall be provided from each working
section, and each area where mechanized mining equipment is
being installed or removed, continuous to the surface escape drift
opening or continuous to the escape shaft or slope facilities to the
surface.
(2) During equipment installation, these escapeways shall
begin at the projected location for the section loading· point. During
-equipment removal, they shall begin at the location of the last
loading point.
30 C.F.R. § 75.380(a)-(b). The term ''working section" is defined as "all areas ofthe coal mine
from the loading point of the section to and including the working faces." 30 U,S.C. § 378(g)(3);
30 C.F.R. § 75.2. Here, the loading point was where the stage loader dumped the crushed coal
onto the conveyor belt. Tr. 297, 301; Gov't Ex. 4. Where the language of a regulatory provision is clear, the terms of that provision must be
enforced as they are written unless the regulator clearly intended the words to have a different
meaning or unless such a meaning would lead to absurd results. Dyer v. United States, 832 F.2d
1062, 1066 (9th Cir. 1987) (citations omitted); see also Utah Power & Light Co., 11 FMSHRC
1926, 1930(October1989) (citations omitted); Consolidation Coal Co., 15 FMSHRC 1555,
1557 (August 1993). If, however, a standard is ambiguous, courts have deferred to the
Secretary's reasonable interpretation of her regulation. See Energy West Mining Co. v.
FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994); accord Secy ofLabor v. WesternFuels-Utah,
Inc., 900 F.2d 318, 321 (D.C. Cir. 1990) ("agency's interpretation ... is 'of controlling weight
unless it is plainly erroneous or inconsistent with the regulation"') (quoting Bowles v. Seminole
Rock Co., 325 U.S. 410, 414 (1945) (other citations omitted)). In determining whether a standard
is plain or ambiguous, the "language of a regulation ... is the starting point for its
interpretation." Dyer, 832 F.2d at 1066 (citing Consumer Prod. Safety Comm 'n v. GTE Sylvania,
Inc., 447 U.S. 102, 108 (1980)).

29 FMSHRC 946

The Secretary argues that the narrowing of the pathway around the stage loader from
2-1/2 feet to less than a foot violated section 75.380(a)'s requirement that the passageways
designated under the regulation as escapeways be "travelable," based on the dictionary definition
of that term as "capable of being traveled: PASSABLE." S. Br. at 15 (citing Webster's Third
New Int'l Dictionary 2433 (2002)). According to the Secretary, under this definition an
inaccessible escapeway cannot be considered "travelable."
Resort to the dictionary definition of "travelable" is appropriate here, because neither the
Mine Act nor MSHA's regulations define the term. In the absence of a regulatory definition or
technical usage of a word, we apply the ordinary meaning of the word. See Bluestone Coal
Corp., 19 FMSHRC 1025, 1029 (June 1997); Peabody Coal Co., 18 FMSHRC 686, 690 (May
1996), aff'd, 111 F.3d 963 (D.C. Cir. 1997) (table).
However, we do not agree with the Secretary that the term "travelable" as it applies to an
escapeway necessarily encompasses whether the escapeway is accessible. Whether a route is
"passable" or "travelable" generally refers to the internal qualities of the route itself, from end to
end, and not.whether someone can get to the route from outside it. For instance, during snowy
conditions, main roads are often described as "passable," with the qualifier that it is difficult to
get to the road because of the condition of connecting secondary roads ... The inaccessibility of a
main road due to snow on the connecting road is thus not considered to render the main road
"impassable." The concept of accessibility as applied to a route is a different concept from
passability or travelability. 7
Furthermore, the extensive regulatory history to section 75.380 does not support the
Secretary's specific interpretation. See, e.g., 57 Fed. Reg. 20868, 20904-06 (1992); 61 Fed. Reg.
9764, 9810-20 (1996). At no point did MSHA indicate that, in using the term "travelable," it
meant to extend the meaning of the term beyond its normal usage to include the concept of
accessibility. Consequently,: we .cannot agree that the Secretary's interpretation of section
75.380(a) is supported by the plain meaning of the term "travelable."
While we would normally next examine whether the Secretary's proffered interpretation
of section 756.380(a) should nevertheless be upheld as reasonable, in this instance we need not
because other language in the standard plainly addresses.the issue raised by the citations. Section
75.380(a) provides that the two designated escapeways "shall meet the requirements of this
section," and one of those requirements is that "[ e]scapeways shall be provided from each
working section." 30 C.F.R. § 75.380(b)(l) (emphasis added). To "provide" is not an

7

Moreover, while the requirement that escapeways be "travelable" appears in both the
Coal Act and the Mine Act, there is nothing in the legislative history to resolve the issue
presented by this case. See S. Rep. No. 91-Al l, at 83 (1969), reprinted in Senate Subcomm. on
Labor, Comm. on Labor and Public Welfare, 94th Cong., Part I Legislative History of the
Federal Coal Mine Health and Safety Act of 1969, at 209 (1975) ("Legis. Hist.").
29 FMSHRC 947

ambiguous term as it is employed in this instance, as it is defined to mean ''to supply for use."
Webster's Third New Int'l Dictionary 1827 (1993).
An operatOr thus violates section 75.380(b)(l)'s requirement to "provide" escapeways
from a working section when its miners are substantially hindered or impeded from accessing
designated escapeways, as in such an instance the escapeways are not being supplied for the use
of the miners. There is no disputing that escapeways are needed for miners to quickly exit an
underground mine and that impediments to a designated escapeway may prevent miners from
being able to do so. The legislative history of the escapeway standard states that the purpose of
requiring escapeways is ''to allow persons to escape quickly to the surface in the event of an
emergency." S. Rep; No. 91-411, at 83, Legis. Hist., at 209 (1975). While escapeways
themselves maybe, from end to end, in total compliance with the requirements of section 75.380
as to the conditions of the escapeways, the inability of miners on a working section to quickly
reach the escapeways constitutes a violation of the standard's basic requirement that the
escapeways be "provided" to miners on the working section.
Such an interpretation of section 7 5 .3 80(a) & (b) is also consistent with the remainder of
the standard. Section 75:380 contains extensive requirements as to the location and physical
attributes of escapeways so that miners, including those disabled in a mine accident and needing
assistance, can quickly and safely get from the start of the escapeway to the surface. Moreover,
section 75.380 obligates operators to continually maintain the condition of escapeways so that
such passage is not hindered. See generally Maple Creek Mining, Inc., 27 FMSHRC 555, 559-61
(Aug. 2005). Interpreting section 75.380(a) to require that escapeways be accessible is consistent
with the standard as a whole.
To hold otherwise, and to conclude that an escapeway that is not readily accessible
nevertheless still qualifies as an escapeway "provided" under section 75.380, would be contrary
to Commission precedent. In numerous cases, we have taken the purpose of a standard into
account in determining how it should be interpreted and whether it was in fact being met. See
RAG Cumberland Res., LP, 26 FMSHRC 639, 647-48 (Aug. 2004), aff'd sub nom. Cumberland
Coal Res., LP v. FMSHRC, No. 04-1427, 2005 WL 3804997 (D.C. Cir. Nov. 10, 2005)
(unpublished) (rejecting literal interpretation of coal mine ventilation standard that would not
accomplish the standard's purpose in favor ofinterpretation that took that purpose into account);
Western Fuels-Utah, Inc., 19 FMSHRC 994, 998-99 (June 1997) (reversing ALJ's determination
that standard requiring that conveyor be equipped with slippage and sequence switches was
satisfied even though switches were inoperable); Fluor Daniel, Inc.; 18 FMSHRC 1143, 1145-46
(July 1996) (rejecting, sub silentio,1operator's claim that 30 C.F.R. § 56.14101(a)(l) did not
require brakes, once installed, to be maintained in functional condition); Mettiki Coal Corp., 13
FMSHRC 760, 768(May1991) (construing 30 C.F.R. § 77.507 to require that switches be
installed With functioning lockout devices). Because American was required by section 75.380
to "provide" two escapeways to miriers from the working section, findirig that it complied with
the standard when escapeways that otherwise met the standard could not be readily or safely
accessed by miners needing to use them in an emergency would exalt form over substance.
29 FMSHRC 948

While American contends that the Secretary is arguing that the pathway around the rib
side of the stage loader was part of the escapeway subject to the requirements of section 75 .380,
that is plainly not the case. The Secretary has consistently maintained throughout this proceeding
that the citations were issued because the migrating stage loader greatly hindered access to·the
escapeways American had designated pursuant to section 75.380, not that the stage loader WiiS
located in an escapeway. In each of the citations at issue, it is alleged that American failed to
"provide" safe egress from the face. Gov't Exs. 2, 10. 8 The Secretary did not deviate from that
position in the proceeding below. Tr. 167, 226, 288, 292; S. Post-Hearing Br. at 19-23 ..
Consequently, the judge erred in reaching the issue. Given the express requirement of
section 75.380 that escapeways be "provided," it was not necessary for him to address the extent
to which, if at all, the escapeway requirements applied inby the loading point of the section. 9

8

Citation No. 7581904 charged a violation of section 75.380(a}because:
A safe egress/escape/travelway was not provided on and off the
6th[] North long wall face as required. The longwall equipment
was allowed to migrate to the head gate end rib preventing safe
travel on and off the. face area where miners are required to travel.
The only access to the face is to climb over parts to the stage loader
and a miner was observed traveling over .top of the head gate
conveyor motor top plate while the machine was running coal.

Gov't Ex. 2, at 1. Citation No. 7581788 charged a violation of section 75.380(a) because:
A safe egress route was not provide[ d] off or on the 7th North
Longwall Face as required. The stage loader has been allowed to
migrate to the headgate rib preventing safe travel in this area. The
only access to the longwall face or off the longwall face is to climb
over the stage loader or the belt conveyor.
Gov't Ex: lO, at 1.
9

Chairman Duffy and Commissioner Young note that the Commission addressed the
factors that go into determining the geographical and temporal scope of a "working section" as
that term is used in the escapeway requirements when it decided a case involving the predecessor
to section 75.380. See Bethenergy Mines, Inc., 11 FMSHRC 1445, 1453-54 (Aug. 1989)
(affirming as consistent with the four identified factors the judge's decision vacating three
citations alleging violations of 30 C.F.R. § 75.1704 (1986)). They also recognize that MSHA in
section 75.380 has since adopted extensive standards regarding the characteristics and conditions
of escapeways, and it is clear from the terms of the standard that it was not written to include the
narrow confines of the face area of a working section, particularly in a longwall section. For
instance, under section 75.380, escapeways are normally expected to be at least 6 feet wide, and
29 FMSHRC 949

B.

Substantial Evidence

The judge did not explicitly address whether the evidence regarding the extent to which·
miners would have been impeded or hindered from reaching a designated escapeway during the
periods when the rib side pathway was blocked because of stage loader migration established that
the miners at the face were not being "provided" the two escapeways required by section 75.380.
Remand for him to do so is not necessary, however, because, based on the record in this case, the
only conclusion that can be reached is the miners were not being "provided" an escapeway under
section 75.380. See American Mine Svcs., 15 FMSHRC 1830, 1833-34 (Sept. 1993) (remand
unnecessary where record supports only one conclusion).
American argues that there were two acceptable alternatives to using the rib side pathway
when it was blocked: miners could either climb over the stage loader, or take the block side
pathway, which would have been wider than normal after the stage loader had migrated over to
near the rib. Am. Br. at 13; Am. Reply Br. at 2. As for the feasibility of climbing over the stage
loader, American points out that the inspectors witnessed miners doing it successfully. Arn. Br.
at 13. As we held in Maple Creek, however, the test with respect to the use of an escape route is
not whether miners have been safely traversing the route under normal conditions, but rather the
effect of the condition of the route on miners' ability to expeditiously escape a dangerous
underground environment in an emergency. 27 FMSHRC at 560 (citing 61 Fed. Reg. at 9810).
That same reasoning applies in determining whether a designated escapeway has been
"provided" within the meaning of section 75.380.
The evidence shows that even the miners climbing over the four and one-half foot high
stage loader going to and from the face as part of their normal duties had a difficult time doing
so. Inspector Wooten testified that the miner he saw was "having trouble" pulling himself up the
stage loader. Tr. 141. Once atop it, the miner had to crawl and "scoot" across it, in the 2-112
foot clearance between the stage loader and the roof. Tr. 148-49. That he did so with mud up to
the tops of his boots because of ground conditions at the face increased the difficulty of his

never so narrow that four people carrying a stretcher would be unable to pass through that part of
the escapeway. 30 C.F.R. § 75.380(d)(4). Yet the face area is where many miners will be
working when the need to evacuate the mine arises, and mining operations there may interpose
obstacles to the start of an evacuation. Consequently, Chairman Duffy and Commissioner Young
believe the mining community may be well served by an MSHA rulemaking in which more
detailed standards regarding access to escapeways are developed and adopted.
Commissioner Jordan notes that her colleagues fault the judge for reaching the issue of
how far the escapeway extended. They agree that, :given the clear mandate of section 75.380 that
escapeways be provided, it was not necessary for him to rule on whether all escapeway
requirements applied inby the loading point. She does not believe that such a determination is
necessary to resolve this case. Moreover, nowhere in the language of section 75.380 does she
read such an explicit finding.
29 FMSHRC 950

climbing and crawling. Tr. 122, 138. Inspector Miller's testimony regarding the problems he
observed when a miner passed over the stage loader was not as detailed. However, Miller
testified that, while it was "humanly" possible for miners to make it over the stage loader, he did
not consider it a safe practice. Tr. 325-26. He also confirmed the wet and muddy conditions,
which likely made climbing and crawling over the stage loader even more dangerous. Tr. 28687.

If individual miners were having difficulty going over the stage loader, it is reasonable to
infer that it would be unsafe to expect miners to do so as a group, which is what would occur in
the event of an emergency requiring access to one of the designated escapeways. See Maple
Creek, 27 FMSHRC at 560. As many as 11 miners would have been exiting the face in the
muddy conditions, and each would have to climb up the slippery stage loader and crawl over its
top, in the limited space between it and the roof, and down again, to reach an escapeway. Tr.
137-39, 140-41, 150. Inspector Miller concluded that, in-such an event, the miners would have
"had very little chance to get out of there without a whole lot of effort" because of the stage
loader migration. Tr. 286. In light of the foregoing, the only conclusion that can reasonably be
reached is that ifthe sole access to the designated escapeways involved climbing up and crawling
over a stage loader under the conditions that were present at the time of the two citations, the
escapeways were not being "provided" as required by section 75.380.
The evidence regarding the other alternative route that American alleges existed - use of
the block side pathway around the stage loader - similarly indicated that ready access to the
escapeway was not being provided. It was established at the hearing that, in orderJor miners to
exit the face using the block side pathway, component parts of the longwall would need to be
di;;-energized, in order to stop the pan line and the conveyor belt tailpiece. Miners WO\[ld then
have to cross over the pan line, walk through the block side pathway, and get past the belt to
access one of the designated escapeways through one or more crosscuts. 29 FMSHRC at 258;
Tr. 419-20.
While American's Health and Safety Manager, Paul Kraus, testified that miners taking
such a route would simply be "stepping" across the pan line and belt (Tr. 420), the judge found
that significantly greater effort on the part of miners would have been necessary to do so. 20
FMSHRC at 259. Our review of the record indicates that the judge's conclusion is supported by
substantial evidence, Jo particularly given the dimensions of the pan line and conveyor belt.

Jo 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. v. NLRB, 305
U.S. 197, 229 (1938)).

29 FMSHRC 951

The judge accurately described the pan line as 3 feet deep, and ranging in width from 3 to
5 feet. Id.; Tr. 421-22. The judge also properly took into account that the belt tailpiece that the
miners would have to cross was not only 3 feet wide but also at least 3 feet high. 29 FMSHRC at
259; Tr. 424. Thus, as summarized by Inspector Miller, to use the block side pathway, miners
would have to climb over into the pan line, climb out of it, walk alongside the stage loader, and
then climb over the belt line. Tr. 290-91. In the opinion of Inspector Wooten, such an
alternative would be too time-consuming during an emergency evacuation. Tr. 229-30.
The judge rejected the block side pathway as an alternative route because the significant
effort miners would need to expend in using it in an emergency situation was not consistent with
the purpose or spirit of section 75.380. 29 FMSHRC at 259. The judge's findings as to the
difficulty miners would have in using the block side pathway support the conclusion that
requiring use of the block side pathway to access the designated escapeways is not consistent
with the requirement that miners exiting the face be "provided" escapeways. Consequently, we
affirm in result the judge's findings of violation with respect to both citations.
Finally, in interpreting and applying section 75.380 here, we cannot ignore that the
applicable statute and its· legislative history emphasize the need for miners on a working section
to exit a mine expeditiously in emergency situations. Furthermore, Congress recently passed and
the President signed into law the Mine Improvement and New Emergency Response Act of 2006,
Pub. L. 109-236, 120 Stat. 493 ("MINER Act"), which amended the Mine Act in several
respects. Among other things, the Mine Act now contains provisions which require mine
operators to submit for MSHA' s approval emergency response plans, and those plans must,
among other things, "provide for the evacuation of all individuals endangered by an emergency."
30 U.S.C. § 876(b)(2)(B)(i). Ready access to escapeways for all miners is a key component of an
effective evacuation of a mine. 11 Plainly, that access was not being provided by American at the
times it was cited for violating section 75.380.
C.

Notice

Separate from the issue of regulatory interpretation is whether the regulated party has
received fair notice of the Secretary's interpretation of the regulation. Where the imposition of a
civil penalty is at issue, considerations of due process prevent the adoption of an agency's
interpretation "from validating the application of a regulation that fails to give fair warning· of the
conduct it prohibits or requires." Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir.
1986) (citations omitted). An agency's interpretation may be permissible but nevertheless may
fail to provide the notice required to support imposition of a civil penalty. See General Elec. Co.
v. EPA, 53 F.3d 1324, 1333-34 (D.C. Cir. 1995); Phelps Dodge Corp. v. FMSHRC, 681 F.2d
1189, 1193 (9th Cir. 1982). The notice requirement is satisfied when a party receives actual
notice ofMSHA's interpretation of a regulation prior to enforcement of the standard against the
11

As Inspector Miller testified, "[i]fyou can't get to an escapeway, you don't have an
escapeway." Tr. 292.
29 FMSHRC 952

party. See Consolidation Coal Co., 18 FMSHRC 1903, 1907 (Nov. 1996); see also General
Elec., 53 F.3d at 1329 (reasoning that agency's pre-enforcement warnings to bring about
compliance with its interpretation may provide adequate notice to regulated party).
In order to avoid due process problems stemming from an operator's asserted lack of
notice, the Commission has adopted an objective measure (the "reasonably prudent person" test)
to determine if a condition is violative of a broadly worded standard. That test provides:
[T]he alleged violative condition is appropriately measured against
the standard of whether a reasonably prudent person familiar with
the factual circumstances surrounding the allegedly hazardous
condition, including any facts peculiar to the mining industry,
would recognize a hazard warranting corrective action within the
purview of the applicable regulation.

Alabama By-Products Corp. , 4 FMSHRC 2128, 2129 (Dec. 1982); see also Asarco, Inc., 14
FMSHRC 941, 948 (June 1992). As the Commission stated in Ideal Cement Co., 12 FMSHRC
2409, 2416 (Nov. 1990), "in-interpreting and applying broadly worded standards, the appropriate
test is not whether the operator had explicit prior notice of a specific prohibition or requirement,"
but whether a reasonably prudent person, familiar with the protective purposes of the standard,
would have ascertained the specific prohibition of the standard and concluded that a hazard
existed. The reasonably prudent person is based on an "objective standard." US. Steel Corp., 5
FMSHRC 3, 5 (Jan: 1983)~
American maintains that it did not have adequate notice that the Secretary was
interpreting section 75.380 so that the designated escapeways included the working sections of
the Galatia Mine longwall sections. Am. Br. at 15-18. However, as discussed above, supra, at 7,
9, the citations MSHA issued were not based on the notion that the escapeways began at the face.
Instead, the Secretary interpreted the standard to require that miners have safe, ready access to
designated escapeways. The fact that the Secretary based her interpretation on the word
"travelable" rather than the language stating that "escapeways shall be provided" - the language
that we have concluded is dispositive - has no bearing on whether American had adequate
notice of what it was required to do.
As for the Secretary's actual interpretation requiring safe access to designated
escapeways, Inspector Miller's May 11, 2005, citation provided American actual notice that stage
loader migration that prevented miners from using the rib side pathway around the stage loader
constituted a violation of section 75.380. The citation specifically stated that such migration
meant that "[a] safe egress route was not [being] provide[d] off or on the" longwall face. Gov't
Ex. 11. Furthermore the citation mentioned that the miners' only alternative was to climb over
the stage loader, thus indicating MSHA's belief that this was not an acceptable method of travel
to reach the escapeway. Id. In addition, shortly after issuing the May citation, the inspector met

29 FMSHRC 953

with the operator's management and hourly employees and expressed MSHA's concern about the
hazards associated with stage loader migration. 29 FMSHRC at 257.
Moreover, even without the earlier citation, a reasonably prudent person would have
recognized that the failure to provide miners ready access to an escapeway constituted a violation
of section 75.380. The obvious purpose ofrequiring that escapeways always be available is to
permit miners to quickly exit the mine. An operator such as American should have known that a
time-consuming route to access an escapeway runs counter to this purpose and thus the standard
itself. Consequently, for all of the reasons above, we conclude that American had adequate
notice that the conditions cited constituted violations of section 75.380'.
III.

Conclusion
For the foregoing reasons, we affirm in result thejudge's decision that American violated
section 75.380(a).

29'FMSHRC 954

Distribution

Noelle Holladay True, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
2333 Alumni Park Plaza, Suite 310
Lexington, KY 40517
Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N:W., Suite 9500
Washington, D.C. 20001-2021

29 FMSHRC 955

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, O.C. 20001

December 21, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. PENN 2007-251-E

v.

EMERALD COAL RESOURCES, LP

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

Docket No. PENN 2007-252-E

V.

CUMBERLAND COAL RESOURCES, LP

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
DECISION
BY: Jordan and Young, Commissioners
These consolidated cases are before the Commission on referrals of emergency response
plan disputes by the Secretary of Labor pursuant to Commission Rule 24{a), 29 C.F.R
§ 2700.24(a), and section 316(b)(2)(G) of the Federal Mine Safety and Health Act of 1977
("Mine Act" or "Act"), as amended by the Mine Improvement and New Emergency Response
Act of2006 ("MINER Act"), 30 U.S.C. § 876(b)(2)(G), 120 Stat. 493, 495-96. This proceeding
involves citations issued by the Department of Labor's Mine Safety and Health Administration
("MSHA") to Emerald Coal Resources, LP ("Emerald") and Cumberland Coal Resources, LP
("Cumberland") (collectively referred to as the "Operators"). 1 Administrative Law Judge

1

Emerald and Cumberland are affiliated companies of Foundation Coal Group. 29
FMSHRC at 544 n.3. Each operator submitted its own emergency response plan to MSHA, but
29 FMSHRC 956

Michael Zielinski· affirmed the citations at issue and directed the Operators to submit purchase
orders for refuge chambers with their emergency response plans within 10 days of his decision.
29 FMSHRC 542, 556 (June 2007) (ALJ). The Operators filed a petition for discretionary
review that the Commission granted. For the reasons that follow, we affirm the judge's decision.
I.

Factual and Procedural Background
A.

The Statutory and Regulatory Backdrop

Section 2 of the MINER Act, which became effective on June 15, 2006, amends section
316 of the Mine Act, 30 U.S.C. § 876, to require underground coal mine operators to develop and
submit for MSHA approval2 and periodic review an emergency response and preparedness plan
("Emergency Response Plan" or "ERP"). 29 FMSHRC at 543; see 30 U.S.C. § 876(b)(2)(A).
The basic goals of an ERP are twofold: to evacuate miners who are endangered by a mine
emergency; and to maintain miners who are trapped underground and are not able to evacuate.
30 U.S.C. § 876(b)(2)(B)(i}and (ii). The MINER Act specifies that operators develop ERPs and
submit them for approval by the Secretary within 60 days after the date of the statute's enactment

their efforts to comply with the MINER Act and their interactions with MSHA "have been
substantially identical." Id.
2

Section 316(b)(2)(C) provides:
(C)

PLAN APPROVAL. -The accident response plan ... shall
be subject to review and approval by the Secretary. In
determining whether to approve a particular plan the
Secretary shall take into consideration all comments
submitted by miners or their representatives. Approved
plans shall (i) afford miners a level of safety protection at least
consistent with the existing standards, including
standards mandated by law and regulation;
(ii) reflect the most recent credible scientific research;
(iii) be technologically feasible, make use of current
commercially available technology, and account for the
specific physical characteristics of the mine; and
(iv) reflect the improvements in mine safety gained
from experience under this Act and other worker safety
and health laws.

30 U.S.C. § 876(b)(2)(C).
29 FMSHRC 957

(June 15, 2006). Id. § 876(b)(2)(A), (C). Thus, mine operators were required to submit ERPs to
MSHA by August 14, 2006.
In an effort to enhance the chances of survivability of miners who are trapped
underground following a mine accident, the MINER Act specifies that all ERPs must contain,
inter alia, provisions addressing post-accident communications, tracking of miners, lifelines, and
breathable air. Id. § 876(b)(2)(E)(i) - (vi). With regard to post-accident breathable air, the
MINER Act specifies:
(iii) POST-ACCIDENT BREATHABLE AIR. - The plan shall
provide for (I) emergency supplies of breathable air for individuals
trapped underground sufficient to maintain such individuals
for a sustained period of time . ...
Id. § 876(b)(2)(E)(iii) (emphasis added).

As required by the MINER Act, on August 14, 2006, the Operators submitted initial
ERPs for MSHA approval. 29 FMSHRC at 544-45. The Operators addressed the breathable air
requirement by proposing to provide caches of self-contained self-rescuers (SCSRs) sufficient to
allow for five or six hours of air for each miner. Id. at 546.
On August 30, 2006, MSHA published a ''Request for Information" in the Federal
Register in which MSHA sought information from the mining community on the topic of postaccident breathable air that would be sufficient to maintain miners for a sustained period. Id. at
546; Gov't Ex. 2. Thereafter, on February 8, 2007, the Secretary issued a policy directive
specifying.her interpretation of the quantity of air necessary to maintain trapped miners for "a
sustained period of time," until a mine rescue team could reach them. Program Information
Bulletin, No. P07-03, at 1-2 (Feb. 8, 2007) (hereafter "PIB") (Gov't Ex. 5). The PIB directed
mine operators to include in their ERPs a provision specifying how breathable air will be
maintained. Id. at 2. In addition, the PIB specified several "options that may satisfy the
breathable air requirement," including that "each miner should be provided a 96-hour supply of
breathable air located within 2,000 feet of the working section." Id. The PIB concluded by
stating that operators "must submit" the portion of their ERPs relating to breathable air within 30
days. Id. at 3.
Prior to the deadline for the submission ofERPs established in the PIB, the West Virginia
Office of Miners' Health, Safety & Training had issued a list of"approved shelters" that would
provide 96 hours of breathable air. 29 FMSHRC at 547; Resp't Ex. 109. MSHA adopted a
policy of accepting operators' use of these state approved shelters or chambers. 29 FMSHRC at
547.

29 FMSHRC 958

B.

Events Leading to the Citations

On March 12,2007, the Operators submitted revised ERPs to MSHA for its approval as
specified in the February 8 PIB. Their ERPs stated that refuge chambers or rescue shelters, rather
than SCSRs, would be used to provide breathable air to trapped miners. 29 FMSHRC at 547.
Officials of Foundation Coal, the parent company of Emerald and Cumberland, believed that
prefabricated refuge chambers could be more effectively used by miners in an emergency
situation than barricades that would have to be constructed by the miners during an emergency.
Id. On March 28, Cumberland submitted a further revised ERP that specified that refuge
chambers that could provide up to 96 hours of breathable air would be maintained within 2,000
feet of each working section. Id. at 54 7, Gov't Ex. 9 par. 3 .a. Emerald submitted a substantially
similar revised plan on April 2. 29 FMSHRC at 547; Gov't Ex. 22 III.I.
Both Cumberland's and Emerald's revised ERPsprovided that the refuge chambers
would be ordered within 60 days ofMSHA's approval of the plans. 29 FMSHRC at 547. At the
time of the submission of the revised ERPs, the manufacturing companies that had successfully
tested models of refuge chambers had none in production. Id. In contrast, all the materials
necessary to provide a sustained supply of breathable air in barricade-type shelters were readily
available with the exception of carbon dioxide scrubbing materials that had some delivery
problems. Id. at 553.
MSHA responded to the Operators' submissions by indicating its approval of the use of
refuge chambers to protect miners from a hazardous environment and to provide breathable air.
Id. at 54 7-48. However, MSHA indicated that it would not approve the ERPs without a purchase
order for the refuge chambers. Id. at 548. Thereafter, Foundation Coal solicited bids on an
expedited basis from three companies that could provide the chambers. Id.

On April 18,3 the Operators submitted revised ERPs in which they stated that they were
ordering refuge chambers and specified a model number. Id. Cumberland also submitted with
its ERP a memorandum explaining that it was still working out terms of its order with the
manufacturer and that a purchase order would be written as soon as an agreement could be
reached. Id. MSHA believed that a purchase order wo"Qld be supplied within a few days.
However, by May 3 Cumberland had not supplied a purchase order, and MSHA requested
Cumberland to supply one, along with a scheduled delivery date, within five working days. Id.;
Gov't Ex. 16.
Beginning in mid-April, while the Operators were submitting their ERPs for approval,
concerns arose regarding use of the carbon dioxide scrubbing systems in refuge chambers. 29
FMSHRC at 548. Carbon dioxide scrubbing systems can be either active (where air is fan driven

3

The judge inadvertently referred to the date of submission as April 28 (29 FMSHRC at
548); however, the ERPs are ckiarly dated April 18, as is the cover memorandum from
Cumberland. See Gov't Exs. 10, 15, and 23.
·

29 FMSHRC 959

across chemicals) or passive (where chemicals are laid out and exposed to air), but both use a
chemical compound, either soda lime or lithium hydroxide, to absorb carbon dioxide from the air.
Id. The chemical compounds are caustic, and MSHA became concerned that handling the
chemicals in a closed environment might pose an unacceptable risk to miners. Id. By April 25,
MSHA advised its district managers not to approve any post-accident breathable air provisiollS in
ERPs that used bulk soda lime for carbon dioxide scrubbing. Id.; Resp't Ex. 47. Within seven to
ten days, manufacturers promptly responded to MSHA' s concerns by encapsulating the soda lime,
thereby eliminating the bulk handling problem. 4 29 FMSHRC at 548-49; Gov't Ex. 37
The Operators also became concerned about the temperature in the refuge chambers. 29
FMSHRC at 549. MSHA had determined that the temperature in shelters should not exceed 95
degrees. Id. Lithium hydroxide gives off heat, and the Operators believed that such heat
generation might lead to excessive temperatures in the chambers. Id. However, testing did not
substantiate this concern. Id. Heat was not an issue in a larger barricaded area. Id. at 554.
In light of the issues that arose with regard to the carbon dioxide scrubbing systems, the
Operators reevaluated their plans to purchase refuge chambers from a manufacturer that used bulk
soda lime. Id. at 549. On April 19; the State of West Virginia requested that the National
Institute of Occupational Safety and Health (''NIOSH") conduct tests on shelters that the state had
approved. 5 Id.; Resp't Ex. 126. Foundation Coal decided to conduct its own testing of the carbon
dioxide scrubbing systems. 29 FMSHRC at 549 & n.8.
On May 9, Cumberland submitted a revised ERP in which it stated that it was testing.and
evaluating rescue chambers from three manufacturers, and that once testing of the carbon dioxide
scrubbing systems had been completed it would complete a: purchase order to procure the
chambers. Id. at 549; Gov't Ex. 11 3.a~ MSHAviewed the ERP as a retreat from Cumberland's
earlier plan in which it committed to purchase specified refuge chambers. 29 FMSHRC at 549.
Other mine operators in MSHA District 2 where the Operators were located had submitted
purchase orders with their ERPs, if the plans provided for refuge chambers. MSHA believed that
the Operators should as well. Id.
By letter dated May 14, MSHA advised Cumberland that its ERP would not be approved
and that it had to be revised "to explicitly provide that you will purchase and install designated
rescue chambers." Id.; Gov't Ex. 17. MSHA rejected Cumberland's intent to test the carbon
dioxide scrubbing systems, stating: "MSHA has reviewed these issues and has determined that

4

It is not apparent from the record when the Operators became aware of this. 29
FMSHRC at 549. See Tr. 317.
5

Section 13 of the MINER Act also requires NIOSH to conduct research and testing into
refuge chambers and submit a report to the Secretary by December 2007; 120 Stat. at 504.
Within six months thereafter, the Secretary must determine what action, if any, to take in light of
the report. Id.
29 FMSHRC 960

scrubbing systems that efficiently remove carbon dioxide ... are currently commercially
available." Id. The letter concluded by asking Cumberland to submit a revised ERP by May 18.
Id. On May 16, MSHA made a similar request to Emerald. 29 FMSHRC at 549.
On May 18, the Operators submitted revised ERPs in which they stated that they were
evaluating shelters and that they would submit purchase orders within 60 days ofMSHA's
approval of the plans. Id. at 550. In the cover letters that accompanied the ERPs, the Operators
requested information on-carbon dioxide scrubbing systems and objected to the requirement for
submission of purchase orders. Id.; Gov't Exs. 14, 29. The Operators also noted that NIOSH
testing of refuge chambers was not scheduled to be completed until December 2007 and that the
Secretary would subsequently issue a report on proposed regulatory changes. 6 Gov't Exs. 14, 29.
The Operators concluded that MSHA was "pushing the envelope by requiring purchase orders for
rescue chambers from operators." Id.
On May 22, MSHA advised Cumberland that an impasse may have been reached on the
post-accident breathable air requirement in its ERP. 29 FMSHRC at 550. On the same day,
Cumberland submitted a revised ERP that contained the provision for obtaining a purchase order
for refuge chambers 60 days after plan approval. Id. Emerald had similar communications with
MSHA that culminated withEmeraldsubmitting, on May 24, a revised ERP with a similar
provision for obtaining a purchase order for refuge chambers 60 days after plan approval. Id.
On May 23 and 25, MSHA notified Cumberland and Emerald, respectively, that the postaccident breathable air provisions in their revised ERPs were approved with the exception of the
section providing for obtaining ·purchase orders for refuge chambers 60 days after approval ofthe
plans. Id. Instead, MSHA requested that the period for obtaining purchase orders be shortened to
two days. Id. Neither Cumberland nor Emerald would agree to this proposal. Id.
On May 25, 2007, MSHA issued citations to the Operators arising from their failures to
submit approved ERPs that timely provided for supplies of post-accident breathable air. Id. at
543, 545 & n.4. On May 30, the Secretary filed referrals with the Commission, pursuant to
Commission Procedural Rule 24,7 in which she asked the judge to affirm her refusal to approve

6

Foundation Coal ceased efforts to test the carbon dioxide scrubbing systems when it
encountered delivery problems for materials used in the system. 29 FMSHRC at 549 & n.8.
7

The MINER Act provides for referral to the Commission of disputes arising .over ERPs,
and Rule 24 implements the referral process by providing for the expeditious resolution of
disputes that come before the Commission. Briefly, if there is a dispute between an operator and
the Secretary over a plan provision, the Secretary must issue a citation. 30 U.S.C.
§ 876(b)(2)(G)(ii). Thereafter, Rule 24 provides for the filing of a referral of the citation with the
Commission within two days. 29 C.F.R. § 2700.24(a). The rule further provides for the
submission of materials relevant to the dispute, or a hearing, within 15 days of the referral. Id.
§ 2700.24(e). Within 15 days of the judge's receipt of materials or hearing testimony, he or she
29 FMSHRC 961

the breathable air provision within the 60-day period for providing purchase orders and to order
the Operators to provide for a 10-day period within which to obtain and provide purchase orders.
S.'s Ref. of Emerald Dispute at 4-5; S.'s Re£ of Cumberland Dispute at 4-5. The Operators filed
a motion to consolidate the two referrals and a request for a hearing, which were both granted.
Order of Consolidation, Notice ofHearing, June 4, 2007. On June 12, a hearing was held in
Pittsburgh, Pennsylvania. 29 FMSHRC at 543.
On June 27, the judge issued his decision in which he affirmed the citations. In affirming
the citations, the judge ruled that the Secretary had carried her burden of showing that the refusals
to approve the disputed ERP provisions were not arbitrary and capricious. 8 Id. at 543, 555-56.
The judge also rejected consideration of the Operators' constitutional challenge to the MINER
Act, which was based on lack of notice of the statute's requirements, and their challenge to
MSHA's issuance of the PIB, which the Operators argued involved improper rulemaking. Id. at
551. The judge held that the Operators had actual notice of MSHA' s requirement for purchase
orders. Id. at 551 n.11.
In his opinion, the judge noted that the Secretary bore the burden of proving that MSHA's
refusals to approve the ERPs and its requirement that the citations be abated by providing
purchase orders within 10 days were not arbitrary and capricious. Id. at 551. The judge reviewed
the history of the MINER Act and noted that a main purpose of the legislation is to increase the .
amount of post-accident breathable air available to trapped miners. Id. at 552-53. The judge
noted that mine operators essentially had to choose to provide breathable air in either barricaded
areas,orrefuge chambers and that the Operators chose to use chambers, which were a newer
development with no production models then available. Id. at 553. The judge further noted that,
in light of the delivery delays with the refuge chambers, the MSHA District Manager decided to
make purchase orders for the chambers a part of ERPs to ensure that plans were fully
implemented. 9 Id. Other operators in the district where the Operators were located had complied
with the request Id. at 553...,54. The judge further found that questions concerning the carbon
dioxide scrubbing systems that would be used in either barricades or refuge chambers had been

must issue a decision. Id. § 2700.24(£)(1). Thereafter, if the judge rules in the Secretary's favor,
the disputed provision must be included in the ERP unless the judge or the Commission grants a
stay. Id. § 2700.24(£)(2). Following issuance of the judge's decision, a party may seek review of
the judge's decision by filing a petition for discretionary review. Id. § 2700.24(g).
8

The judge did not address special findings sought by the Secretary in the event that
penalties wereimposedin separate proceedings resulting from the citations issued. 29 FMSHRC
at 550. In rejecting the Secretary's request to impose penalties, the judge stated that the MINER
Act limited the hearing to expeditiously addressing disputes over the contents of the ERPs. Id.
9

The judge noted that MSHA had followed a similar procedurein requiring purchase
orders when manufacturers were overwhelmed with orders for self-contained self-rescuers with
ensuing delivery problems. Id.
29 FMSHRC 962

resolved.· Id. at 554. The judge noted that, in light of the delay since the March 12 submission of
the ERPs and the fact that 14 other operators within MSHA District 2 had submitted purchase
orders with their plans, the District Manager's insistence on the submission of ERPs with
purchase orders was reasonable and not arbitrary or capricious. Id. at 555-56.
The judge affirmed the citations and ordered that the Operators include purchase orders for
refuge chambers in their ERPs by July 9, 2007, the next business day following 10 days from the
date of the decision. Id. at 556. Finally, the judge stated that he would not grant a stay of the
order in light of the time that had passed since the last submission of the ERPs but that the 10-day
period to submit ERPs with purchase orders would provide the Operators ample time to seek a
stay :from the Commission. Id. & n.16.

II.
· Disposition
Before the Commission, the Operators argue that the judge erred when he applied an
"arbitrary or capricious" standard of review in upholding the Secretary's insistence that the
Operators submit a purchase order for refuge chambers in order to obtain approval of their ERPs,
rather than within 60 days of plan approval. 0. Br. at 12; 0. Reply Br. at 8-9. The Operators
contend that other MSHA districts do not require a similar provision in ERPs submitted to those
offices, that MSHA is acting arbitrarily in requiring such a submission, and that the requirement is
inconsistent with the MINER Act. 0. Br. at 13-15. The Operators further argue that
technological changes in the carbon dioxide scrubbing systems used in refuge chambers resulted
in the Operators' reevaluating plans to buy the chambers that they had initially ordered and that
they wanted more time to.wait for.the completion of testing. Id. at 15-20. The Operators
challenge the judge's finding that carbon dioxide scrubbing systems are effective on grounds that
there is no substantial evidence to support it and also challenge his holding that it was not
reasonable for the Operators to wait until testing was completed. Id. at 20-21. The Operators
finally contend that the MINER Act provision addressing the requirement of breathable air is
unconstitutionally vague because it fails to give operators fair notice of what is required in ERPs.
Id. at21-28. Jn further support of this position, the Operators argue that the Secretary should have
engaged in rulemaking because the MINER Act failed to define fundamental terms necessary to
its implementation. 10 0. Reply Br. at 2-7.

10

The Operators do not directly challenge the requirement of the PIB that ERPs provide
for four days of breathable air, but rather they challenge the Secretary's insistence on the
Operators' submission of purchase orders with their ERPs without engaging in rulemaking. See
PDRat 8; 0. Br. at 14-17; 0. Reply Br. at 4-7; see also 29 FMSHRC at 551 n.12("[T]he
disputed plan provisions do not implicate the PIB."). Moreover, in this proceeding, the
Operators do not seek review of whether the PIB constituted improper rulemaking. PDR at 7 n.4.
29 FMSHRC 963

In response, the Secretary argues that the breathable air provision of the MINER Act is not
unconstitutionally vague. S. Br: at 14. The Secretary points to MSHA's efforts to provide
guidance in complying with the statutory requirement and notes that the Operators engaged in
extensive negotiations over the submission of their ERPs and thereby received actual notice of
what was required. Id. at 15-18. The Secretary argues that MSHA was not required to engage in
notice..:and-comment rulemaking to implement the breathable air requirements of the MINER Act
because nothing in the statute mandates it and the time frames for submission of ERPs did not
permit it. Id. at 18-19. The Secretary contends that the judge's approval of the District Manager's
refusal to approve the Operators' ERPs without purchase orders was not unreasonable. Id. at 1920. In support, the Secretary argues that MSHA's actions involve agency discretion that should be
reviewed under an arbitrary and capricious standard. Id. at 20-29. The Secretary also contends
that the Operators cannot raise an equal protection argument because it was not raised before the
judge. Id. at 29-30. Finally, the Secretary argues that the proceeding is not moot in light of the
pending underlying merits proceedings. Id. at 33-34.

The central issue in this proceeding is whether, in enforcing the breathable air
requirements of the MINER Act, MSHA's requirement that the Operators submit purchase orders
within two days 11 of plan-approval and MSHA's refusal to approve provisions in the Operators'
ERPs that provided for the acquisition of purchase orders for refuge chambers within 60 days of
plan approval were arbitrary and capricious. The Operators also challenge section 316(b)(2) of
the amended Mine Act as being impermissibly vague and therefore unconstitutional because the
provision fails to provide operators notice of what is required.
A.

Legislative Background

Passed in response to the tragic loss of life in several mine accidents in 2006, the MINER
Act took a multi-faceted approach to enhancing safety and managing risk in underground coal
mines. S. Rep. No. 109-365, 109th Cong., at 1-2 (Dec. 6, 2006) (hereafter "S. Rep."). Section 2
of the MINER Act requires that each underground coal mine operator adopt a written Emergency
Response Plan. 30 U.S.C. § 876(b)(l), (2). Thus, the MINER Act requires the development of
plans, ''which must provide for the evacuation of miners who may be endangered in an emergency
or, if miners cannot evacuate, provide for their maintenance underground." S. Rep. at 2. The
MINER Act further specifies certain minimum requirements in each plan, including a provision
for post-accident "breathable air for individuals trapped underground sufficient to maintain such
individuals for a sustained period of time." 30 U.S.C. § 876(b)(2)(E)(iii)(I).

11

In reviewing the reasonableness of MSHA' s actions; the judge used the ten-day period
within which MSHA allowed the Operators to abate the citations and provide purchase orders.
29 FMSHRC at 552. However, during negotiations between MSHA and the Operators, MSHA
requested that the Operators provide purchase orders at the time of plan approval. In the final
week prior to the citations, MSHA was willing to give the Operators a two-day period in which
to present purchase orders following plan approvaL Id.

29 FMSHRC 964

With regard to the drafting and approval ofERPs, the legislative history of the MINER
Act states, "In order to facilitate implementation of the [MINER] [A]ct's revisions, the [Senate
Committee] decided to make use of the 'plan' model since all parties were familiar with its use in
other contexts." S. Rep. at 2. Thus, Congress intended that the principles governing the process
of formulating ERPs be similar to those governing other mine plans under the Mine Act. With
regard to mine plans, the Commission has long held, "[M]ine ventilation or roof co11-trol plan
provisions must address the specific conditions of a particular mine." Peabody Coal Co., 15
FMSHRC 381, 386 (Mar. 1993) ("Peabody F'). However, in acJdition to mine-specific provisions
in plans, the MINER Act provides for the inclusion in ERPs of six "areas of concern that have
universal applicability and are therefore susceptible of more generalized regulation." S. Rep. at 3.
See 30 U.S.C. § 876(b)(2)(E)(i) - (vi). One of these areas of general applicability is post-accident
breathable air. Id. (iii).
B.

General Legal Principles - Standard of Review

One of the cornerstone principles with regard to plan formulation under the Mine Act is
that MSHA and the affected operator must negotiate in good faith for a reasonable period
concerning a disputed plan provision. Carbon County Coal Co., 7 FMSHRC 1367, 1371 (Sept.
1985). The Commission has noted, "Two key elements of good faith consultation are giving
notice of a party's position and adequate discussion of disputed provisions." C. W Mining Co., 18
FMSHRC 1740, 1747 (Oct. 1996).
While the contents of a plan are based on consultations between. the. Secretary and the
operators, the Commission has recognized that "the Secretary is [not] in the same position as a
private party conducting arm's length negotiations in a free market." Id. at 1746. As one court.
has noted, "the, Secretary must independently exercise [her] judgment with respect to the content
of ... plans in connection with [her] final approval of the plan." UMWA v. Dole, 870 F.2d 662,
669 n.10 (D.C. Cir. 1989), quoting S. Rep. No. 181, 95th Cong., 25 (1977), reprinted in Senate
Subcom. on Labor, Com. on Human Res., 95th Cong., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 613 (1978). Ultimately, the plan approval process involves an
element of judgment on the Secretary's part. Peabody Coal Co., 18 FMSHRC 686, 692 (May
1996).("Peabody II"). "[A]bsent bad faith.or arbitrary action, the Secretary retains the discretion
to insist upon the inclusion of specific provisions as a condition of the plan's approval." C. W.
Mining, 18 FMSHRC at 1746;.see also Monterey Coal Co., 5 FMSHRC 1010, 1019 (June 1983)
(withdrawal of approval of water impoundment plan was not arbitrary or capricious where
MSHA's conduct throughout the process was reasonable).
Below, the Operators challenged the judge's use of an arbitrary and capricious standard to
review the Secretary's refusal to approve the 60-day purchase order provision in the ERPs and her
requirement for purchase orders within two days of plan approval. 29 FMSHRC at 550. On
review, the Operators continue to argue against an arbitrary and capricious standard, stating that
"such standard ignores the statutory criteria and is too weighted in the Secretary's favor." PDR at
10 n.5. However, in their briefs, the Operators offer no alternative standard of review or
29 FMSHRC 965

Commission precedent that would support a different standard of review. 0. Br. at 12-21; 0.
Reply Br. at 8-9.
We conclude that the judge's framing of the standard of review of the Secretary's actions
as "arbitrary and capricious" is in accordance with CommissiOn precedent. The standard involves
a review of the record to determine whether the Secretary properly exercised her discretion and
judgment in the plan approval process. In this regard, the Commission'_s decision in Monterey
Coal is instructive. In affimring a citation for failing to supply data relating to impoundm:ent pond
construction, the Commission applied the "arbitrary and capricious" standard in reviewing
MSHA's withdrawal of its approval of an impoundment plan:
We cannot conclude that MSHA's use of the Table [of
recommended minimum design storm criteria] or its act of
withdrawing the plan approval was arbitrary and capricious ....
[P]rior to issuance of the citation Monterey was given unequivocal
notice of and a reasonable opportunity to comply with MSHA's
interpretation and use of the Table. In sum, we find the course of
action taken by MSHA to have been a reasonable approach, and not
arbitrary or capricious.

Monterey Coal, 5 FMSHRC at 1019 (citation and footnote omitted); accord Peabody1L 18
FMSHRC at 692 n.6 (in reviewing the Secretary's refusal to approve a ventilation plan provision,
Commission noted that the plan approval process involves an element of judgment on the part of
the Secretary that is reviewed under an arbitrary and capricious standard). ThiS" standard
appropriately respects the Secretary's judgment while allowing review for abuse of discretion,
errors oflaw, and review of the record underthe substantial evidencetest. 12 See Energy West
Mining Co., 18 FMSHRC 565, 569 (Apr. 1996) ("abuse of discretion" has been found when
"there is no evidence to support the decision or if the decision is based on an improper
understanding of the law")(Citations omitted). We therefore affirm the judge's application of the
arbitrary and capricious standard to the plan review.
C.

Whether MSHA's Decision Was Arbitrary. Capricious, or an Abuse of Discretion

The relatively narrow disagreement between the Operators and MSHA pr~seri.teci on review
essentially concerns whether purchase orders should be provided in two days or 60 days after

12

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)(n. "Substantial evidence" means "'such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion.'" Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
29 FMSHRC 966

approval of the ERPs. This dispute does not involve any substantive provisions of the ERPs or the
question of whether the Operators had agreed to enter into purchase orders at some point.
Based on our review of the record, it is apparent that MSHA' s refusals to approve the
Operators' ERPs were not arbitrary, capricious, or an abuse of discretion. Rather, we conclude that
the record amply demonstrates adequate notice and discussion by MSHA regarding the ,disputed
ERP provisions, that the negotiations were conducted in good faith, and that MSHA' s decision not
to approve the ERPs as submitted was supported by the circumstances before the MSHA District
Manager.
Beginning with the February 8, 2007 issuance of the PIB, the Operators submitted no fewer
than six plans addressing the breathable air requirement over a three-month period. As the judge
noted, MSHA' s District Manager determined to require submission of purchase orders "to secure
assurance that the operator was actually proceeding to implement the plan" because refuge
chambers were commercially unavailable at that time. 29 FMSHRC at 553. The record reflects
notice ofMSHA's position with regard to breathable air, communication between MSHA and the
Operators over the disputed provisions in the ERPs, and discussion of the differing positions.
MSHA was responsive to the· Operators' expressed concerns as to the effectiveness of both the
refuge chambers and carbon dioxide scrubbing systems. Finally, in an apparent effort to
accommodate the Operators' need for additional time to obtain purchase orders, MSHA modified
its initial position requiring purchase orders at the time of the submission of the ERPs, to two days
after plan approval. 13 As the Commission noted in C. W Mining, "We discern in these events
adequate notice and discussion by MSHA officials. Nothing in the record suggests bad faith by
MSHA, and we perceive no course of arbitrary conduct." 18 FMSHRC at 174 7.
In contrast to MSHA's conduct, the Operators retreated from their April agreement to
provide purchase orders at the time of submission of the ERPs, to proposing submission 60 days
after plan approval. As the judge noted, in any event, the additional 60-day period that the
Operators sought was insufficient to conduct testing into carbon dioxide scrubbing systems or the
13

Our dissenting colleague finds troublesome that four operators in District 2, including
the Operators in this case, were not required to submit purchase orders prior to plan approval.
His concerns stem from MSHA's insistence that all other operators in that district submit
purchase orders prior to plan approval. Slip op. at 20.. We view this as reasonable flexibility on
the part of MSHA. The record before us does not explain why the other two operators were not
required to submit their purchase orders prior to plan approval. The record does show that a
"grace period" was offered to the Operators in this case to allow them additional time to obtain
purchase orders. The District Manager, in pursuit of a reasonable assurance that the required
equipment would be ordered as soon as possible, was satisfied with this proposal. Tr. 75.
Accordingly, we do not find that MSHA's failure to treat every operator in the same district
identically rises to arbitrary and capricious action by the agency. This is particularly true when
mine-specific factors and differences in the substance and timing of negotiating processes are
taken into account.
29 FMSHRC 967

refuge systems themselves. 29 FMSHRC at 555; Tr. 276; see also Oral Arg. Tr. 20. Nor was it
likely that NIOSH, which had greater access to demonstration models, could begin and complete
its testing on shelters during this period. 29 FMSHRC at 549, 555. Indeed, as the judge found,
NIOSH did not submit a protocol for testing refuge chambers until June 1, 2007, after these
proceedings were initiated. Id. at 549 n.8. Moreover, as previously noted, NIOSH was not
statutorily mandated to complete its testing of refuge chambers until the end of2007. 14 See n.5,
supra. In addition, the Operators seemingly began to question the efficacy of the refuge chambers
that they had chosen to· use by indicating that they wanted to delay the purchase of the chambers
until after testing had been completed later in 2007. See 29 FMSHRC at 549. In response to
Cumberland's position, MSHA stated that it would not approve its ERP, which committed to
"purchase ... essential protective mechanisms at an undetermined and distant future date." Gov't
Ex.17.
We agree with thejudge's observation that "[t]here is no question that Congress intended to
promptly secure a substantial increase in the amount of post-accident breathable air available to
trapped miners." 29 FMSHRC at 553. Accordingly, we must review MSHA's disapproval of the
Operators' final revised ERPs in light of this Congressional purpose, the 60-day deadline for
submitting ERPs, and the· expedited process contained in the statute.
In determining whether MSHA' s determinations were arbitrary and capricious, we examine
the circumstances before the MSHA District Manager when he considered the Operators' final
revised ERPs in late May. The discussions and negotiations between the Operators and MSHA
had extended from March 14 (when revised ERPs addressing the 96-hour breathable air
requirement were submitted) until May 25 (when MSHA disapproved the ERPs) and had involved
changes in position by the Operators. We note that this period itself was longer than the 60-day
statutory period for submitting ERPs after enactment of the MINER Act. During this period, the
Operators raised certain potential problems concerning the safety and efficacy of refuge chambers,
and those problems had been resolved. Although the Operators requested 60 days from plan
approval in which to enter into purchase orders so that additional testing could be conducted, it was
unlikely that any meaningful test results would become available until much later in 2007.
At the time MSHA disapproved the Operators' ERPs, 31 of the 33 underground coal mine
operators in District 2 had already had their ERPs approved-the only exceptions being Emerald
and Cumberland ·Significantly, 14 of the 31 approved ERPs proposed the use of refuge chambers,
and all 14 of those operators had agreed to submit purchase orders with their ERPs or within a few
days afterwards. Tr. 74-75. According to Donald Foster, MSHA's lead reviewer ofERPs for
District 2, the MSHA District Manager wanted the Operators to enter into purchase orders without
a substantial additional delay to ensure that the Operators ''were going to follow through with"

14

Trial testimony from Foundation Coal's vice president for safety indicated that NIOSH
testing might be completed as early as August 31 (Tr. 249-50), still well beyond the 60-day
period in which the Operators sought to execute purchase orders.
29 FMSHRC 968

their statements that they would obtain refuge chambers. Tr. 75. 15 His concerns were based in part
on the amount of time thathad already elapsed and the fact that the Operators had backtracked in
certain respects on their.commitment to obtain particular refuge chambers. Tr. 104.
Based on the totality.of these circumstances, we conclude thatMSHA's response to the
Operators' desire for more tim~ to put purchase orders in place was reasonable. 16 See Monterey
Coal, 5 FMSHRC at 1019. We cannot conclude that the Secretary's insistence on a plan.provision
that is designed to enhance miner safety is indicative of bad faith, or arbitrary and capricious
conduct, particularly in light of the circumstances surrounding the passage of the MINER Act. 17

15

We note that MSHA's use of purchase order requirements to implement new safety
devices has been approved by the courts. In Consolidation Coal Co. v. Donovan, 656 F.2d 910
(3d Cir. 1981), the Court heard a challenge to MSHA's failure to amend regulations governing
the use of self-contained self-rescue devices (SCSRs). It observed that "operators had been
reluctant to place orders [for the SCSRs] so long as there was a possibility of delaying the rule.
As a result, the manufacturers lacked the incentive to increase production." 656 F.2d at 912 n.2
(citing Council ofSouthern Mountains v. Donovan, 653 F.2d 573, 579 n.24 (D.C. Cir~ 1981)). · •
Nonetheless, the Court, in addressing MSHA's requirement that operators obtain purchase orders
for SCSRs, ruled that "mine operators will be impelled to supply whatever devices are available
and order additional devices." 653 F.2d at 915 (quoting Council of Southern Mountains, 653
F.2d at 578n;10.
Although the factual situation in that case was different, with MSHA requiring use of a
specific technology for SCSRs by rule, the decision recognizes purchase order requirements as an
appropriate inducement for operators and equipment manufacturers to develop and install new
safety technology expeditiously. In fact, the Court acknowledged that "[a]lthough the SCSRs
now available are neither the perfect nor the final solution to the problem, all studies indicated
that they represent a substantial improvement over the filter-type rescuers. Such a development,
with its significant life-saving potential, must be hailed, despite its shortcomings." 656 F.2d at
916-17.
16

Our dissenting colleague notes that the Operators "have provided sound reasons for
their concerns as to the ultimate feasibility of underground refuge chambers." Slip op. at 22.
However, our review in this proceeding is directed at the reasonableness of the Secretary, in
refusing after three months of negotiations with the Operators, to approve a plan whereby
purchase orders were submitted some 60 days later. Moreover, if the Operators doubted the
efficacy of refuge chambers, they could have simply replaced chambers with barricades, which
were readily available, or some other proven technology.
17

Commissioner Young notes that at no time did it appear that the Operators were
engaged in delay for delay's sake. See Oral Arg. Tr. 38. To the contrary, the Operators appear to
have been pursuing what they believed to be the best solution for the breathable air portion of its
mines' ERPs. However, it did not appear that they would be able to conclusively resolve that
29 FMSHRC 969

In defense of their position, the Operators additionally argue that the Secretary should have
undertaken notice-and-comment rulemak:ing to implement the ERP provisions of the MINER Act
to require purchase orders at the time of plan approval. However, there is no requirement in the
MINER Act that mandates the use of rulemak:ing in this instance, such as there is in the Mine Act
for certain other matters. See, e.g;, 30 U.S.C. § 825(d) (requiring Secretary to promulgate training
regulations). Indeed, the short time period provided for the submission of ERPs following the
passage of the MINER Act suggests that Congress did not intend for MSHA to proceed by
rulemak:ing. Further, to the extent that Congress indicated that the development ofERPs should
make use of the "model" for ventilation and roof control plans,S. Rep. at 2, the provisions of those
plans are not limited to provisions in the Mine Act or the Secretary's regulations. See Peabody JI,
18 FMSHRC at 691-92 (judge did not rest his determination on an assumption that ventilation of
deep cuts during roof bolting was required bymandatory standards). The Operators' position that
the Secretary can only proceed in implementing the MINER Act by rulemak:ing, and not through .
the present referral proceeding, is at odds with basic tenets of administrative law. See Int'! Union,
UMWA v. MSHA, 920 F.2d 960, 964 (D.C. Cir. 1990) ("[T]he courts have always accorded
agencies broad discretion in choosing between rulemak:ing and adjudication as a means of
addressing issues ... ").
Finally, the Operators contend that substantial evidence does not support certain of the
judge's findings that he made in connection with his determination that MSHAdid not act
arbitrarily or capriciously. In particular, the Operators challenge, as contrary to the record, the
judge's finding that MSHA had no reason to doubt the effectiveness of the carbon dioxide
scrubbing systems. 0. Br. at 19. However, MSHA's representative, Donald Foster, who dealt with
Cumberland and Emerald on their ERPs,testified without contradiction that MSHA's sole concern
with the scrubbing systems was the caustic nature of the chemicals involved. Tr. 85-87; see also
Tr. 168-75 (MSHA engineer Walter Slomski). As the judge found, the concerns over handling of
the chemicals used in the carbon dioxide scrubbing systems were "quickly resolved." 29
FMSHRC at 554; Tr. 86-87; Gov't Ex. 37. In these circumstances, it cannot be said that the
judge's findings lack record support.
In sum, we conclude that the Secretary's actions in adhering to a position of requiring
purchase orders within two days after plan approval and refusing to approve the Operators' ERPs
with a provision for submission of purchase orders 60 days after approval were neither arbitrary
and capricious nor unreasonable.

question within the strictures of the MINER Act, as the Secretary has reasonably interpreted it.
29 FMSHRC 970

D.

Constitutional Issues
1.

Void for Vagueness

The Operators assert that the breathable air provisions in the MINER Act, 30 U.S.C
§ 876(b)(2)(E)(iii), are unconstitutionally vague. 18 0. Br. at 21-27; 0. Reply Br. at 2-7. The
Operators assert that "due process" precludes the application of a law or regulation that fails to
give fair warning of the conduct that it prohibits or requires.
In addressing the Operators' arguments, we must assume that Congress legislated in light of
constitutional limitations. Rust v. Sullivan, 500 U.S. 173, 191 (1991). As the Supreme Court has
noted, "The strong presumptive validity that attaches to an act of Congress has led this CoUrt to
hold many times that statutes are not automatically invalidated as vague simply because difficulty
is found in determining whether certain ... offenses fall within their language." United States. v.
National Dairy Products Corp., 372 U.S. 29, 32 (1963). Thus, the Operators carry a heavy burden
to show that the MINER Act is unconstitutionally vague. See Langston v. Johnson, 478 F.2d 915,
919 (D.C. Cir. 1973).

Under well-established principles regarding notice, the Operators had actual notice of what
is required under the breathable air provisions of the MINER Act. In this regard, the due process
requirement is satisfied when an agency gives actual notice of its interpretation prior to
enforcement. See Consolidation Coal Co;, 18 FMSHRC 1903, 1907 (Nov. 1996) (holding that
actual notice was provided by MSHA prior to issuance of citation); see also General Elec. Co. v.
EPA, 53 F.3d 1324, 1329 (D.C. Cir. 1995) (reasoning that agency's pre-enforcement warnings to
bring about compliance with its interpretation will provide adequate notice). In this proceeding,
the events fully support that there was adequate notice ofMSHA's position with regard to the
submission of purchase orders for refuge chambers. MSHA provided written notification to the
Operators as to the deficiency of their plans~ See, e.g., Gov't Exs; 16, 17, 18, 19, and 20. Indeed,
the record evidence that MSHA acted in good faith in the plan approval process by engaging the
Operators on outstanding issues and providing them feedback is also indicative of actual notice.
2.

Equal Protection

The Operators argue that MSHA' s treatment of operators in requiring purchase orders at the
time of plan approval differed from one district to another and, therefore, violated principles of
equal protection. 0. Br. at 13-14. The Secretary responds that the issue of constitutional equal
protection was not raised before the judge. S. Br. at 29-30. We agree with the Secretary's
position. See 30 U.S.C. § 823(d)(2)(A)(iii) ("Except for good cause shown, no assignment of error
by any party shall rely on any question of fact or law upon which the administrative law judge had
18

The Commission has long held that it has the authority to address constitutional
challenges to the Mine Act. KennyRichardson, 3 FMSHRC 8, 18~21 (Jan. 1981), aff'd, 689 F.2d
632 (6th Cir. 1982).
29 FMSHRC 971

not been afforded an opportunity to pass."). In addition, we also note that the Operators did not
timely raise the issue in their petition for discretionary review. "Under the Mine Act and the
Commission's procedural rules, review is limited to the questions raised in the petition and the
Commission sua sponte. 30 U.S.C. §§ 823(d)(2)(A)(iii) and (B); 29 C.F.R. § 2700.70(f) (1993)."
Wyoming Fuel Co., 16 FMSHRC 1618, 1623 (Aug. 1994), affd, 81F.3d173 (10th Cir. 1996)
(table). In these circumstances, the Commission cannot reach the Operators' equal protection
argument. 19
E.

Mootness

In the Commission's order granting review in this proceeding, we asked the parties to
address the issue ofmootness. Our concern arose because of the Operators' full performance of the
action at issue-presentation of purchase orders with the ERPs-following the judge's order in a
referral proceeding under the MJNER Act.

Our review of the MINER Act and its legislative history indicates that the present
proceeding before the Commission, which occurs at a time when the Operators have complied with
the judge's order and supplied the purchase orders, was the type contemplated when the legislation
was passed. Section 2(b)(2)(G)(i) to (iii) of the MINER Act clearly provides for the issuance of a
citation when a plan provision is disputed; referral to the Commission and litigation before an
administrative law judge on an expedited basis; and then "inclusion of the disputed provision in the
plan" unless relief is requested by the operator and permitted by the judge~ 30 U.S.C. §
876(b)(2){G)(i) to (iii).
Moreover, our review of the legislative history of the MINER Act also leads us to the
conclusion that MINER Act proceedings should not be treated differently from Mine Act
proceedings for purposes of mootness. The Senate Report notes that the approach to resolving
disputes under the MINER Act will be similar to those used in resolving disputes under the Mine
Act.
Thus, where a dispute regarding the approval or content of a plan
arises between the Secretary and operator, the Secretary will issue a
citation with regard to the underlying issue. Use of a "technical
violation" and accompanying citation is the means by which roof and
. ventilation plan disputes are traditionally reviewed. . . . The same
process is anticipated with regard to safety plan disputes.

S. Rep. at 2.

19

We also note that our prior conclusion that the MSHA's conduct in the plan approval
process in requiring the Operators to submit purchase orders was not arbitrary and capricious
largely militates against a conclusion that the same conduct contravened principles of equal
protection.
29 FMSHRC 972

fu light of the foregoing, we agree with the Operators and the Secretary that the present
proceeding is not moot, notwithstanding that the Operators have already entered into purchase
orders in compliance with the judge's order.20

III.
Conclusion
For the foregoing reasons, we affirm the judge's decision.

Michae

20

The parties also state that the instant case is not moot because of implications of its ·
disposition on proceedings initiated by the Operators to challenge, under section 105(a) of the
Mine Act, 30 U.S.C. § 815(a), the citations that were the basis for the referrals and certain
findings contained in those citations. While we express no opinion on the merits of those
challenges or the appropriateness of those proceedings, we do note that our decision in this
referral proceeding may have legal and factual impacts on issues likely to be raised in the citation
contest proceedings.
29· FMSHRC 973

Chairman Duffy,· dissenting:
In the wake of disasters such as those that occurred in January of 2006in West Virginia and
that which occurred most recently in Utah, public shock is understandably followed by a
Congressional demand that more be done by industry and its regulators to ensure that such tragedies
will not recur. That is the impetus for passage of the Mine Improvement and New Emergency
Response Act of2006 ("MINER Act") signed into law by the President on June 15, 2006, and the
resultant accelerated implementation of the law by the Mine Safety and Health Administration
("MSHA") over the past 18 months.
As is usual in these circumstances, Congress adopts a technology-forcing regulatory
:framework and demands that the regulators and the regulated bring that framework into prompt
:fruition. Congressional pressure is brought to bear through oversight hearings and demands for
status reports.
Over the years prior to passage of the MINER Act, this paradigm has produced
extraordinary results with respect to the coal industry: self-contained self rescuers ("SCSRs"), a
substantially reduced respirable coal dust standard, cabs and canopies on underground face
equipment, improved monitoring systems, and stricter permissibility standards. It may well be that
enlightened self-interest among coal operators and aggressive federal and state regulation would
have produced these improvements eventually, but there is no dispute that Congressional impetus
brought about these changes much more rapidly.
That is the context within which this case arises. In section 2 of the MINER Act, which
amended section 316 of the Federal Mine Safety and Health Act of 1977 ("Mine Act"), 30 U.S.C.
§ 876, Congress declared that within 60 days after enactment of the legislation, each underground
. coal mine operator was to submit an Emergency Response Plan ("ERP") for MSHA approval, and
that those plans provide "emergency supplies of breathable air for individuals trapped underground
sufficient to maintain such individuals for a sustained period of time." 30 U.S.C.
§ 876(b)(2)(E)(iii). Congress also specified, however, that in reviewing these plans, MSHA was to
ensure that they "reflect the most credible scientific research[,] be technologically feasible, make
use of currently commercially available technology, and account for the specific physical
characteristics of the mine." Id. § 876(b)(2)(C)(ii) & (iii).
Those, then, are the somewhat countervailing Congressional parameters within which
MSHA and the operators were to develop ERPs. By August 14, 2006, Emerald and Cumberland
had complied with the requirement to submit their ERPs, but over the next several months MSHA
deliberated as to what constituted an acceptable level of breathable air sufficient to maintain trapped
miners for a sustained period of time. 29 FMSHRC 542, 545-47 (June 2007) (ALJ). On February
8, 2007, MSHA determined that level to be 96 hours per miner, a level well in excess, by a factor of
16, of what these operators had originally submitted in August. Id. at 547; Program Information
Bulletin P07-03 ("PIB").

29 FMSHRC 974

Consequently~ from March 12 of this year, MSHA District2 and the operators negotiated

toward agreement over this element of the ERPs until MSHA announced an impasse on May 25,
2007. 29 FMSHRC at 547-50. It is important to note that the agency and the operators, from the
beginning, had no dispute· over the substantive contents of the plans. MSHA, in its February. 8, 2007
PIB, indicated that operators could meet the 96-hour requirement by installing underground refuge
chambers within 2,000 feet of working faces. Gov't Exs. 4, 5, 7. Emerald and Cumberland, in their
first submissions and in each submission thereafter, indicated that, on the basis of greater safety and
efficiency, they would meet the requirement by installing underground refuge chambers. 1 29
FMSHRC at 54 7-50. The only dispute between the parties was whether purchase orders for the
chambers had to be submitted before or after MSHA approval of the ERPs themselves. Id. at 54850.

In fact, it is fair to say that MSHA, from the beginning until May 25, made purchase orders a
condition precedent to its approval of these operators' ERPs, but that was not a consistentagency
position within District 2. As the Secretary's brief indicates, two other operators in District 2 were
allowed to submit purchase orders after MSHA .had approved their ERPs. S. Br. at 7. Admittedly,
those purchase orders were provided in less than 60 days--one day and one week, respectively, after
MSHA's approval of the operators' ERPs. Id. That, however, does not refute the point that an
unexplained inconsistency infected the approval policy in District 2. That inconsistency does not
necessarily support the operators' equal protection argument (0. Br. at 13-14), but it does weigh
heavily with me as to whether the MSHA District 2 Manager acted arbitrarily or unreasonably with
respect to Emerald and Cumberland.
The Secretary argues that "[w ]ithout the equipment, or a purchase order for the equipment,
the District Manager could not be assured that an operator was attempting to implement the
breathable air provision of the ERP." S. Br. at 24. It would seem to me that the same rationale
would also apply to the two operators whose plans were approved without the preapproval
submission of purchase orders. This inconsistency within District 2 supports a conclusion of
unreasonableness on the part of the Secretary. 2

1

While it is true the operators could have selected barricades instead of refuge chambers
(see slip op. at 14 n.16), they rejected that choice on the grounds that miners may not have the
time or physical capability to construct barricades in the midst of an emergency. 29 FMSHRC at
547.
2

The record also discloses that in most MSHA districts, purchase orders for refuge
chambers are not required as a precondition for approval of an ERP, but that if, subsequent to
approval of an ERP, an inspector finds that a purchase order has not been executed, the operator
can be cited for failure to comply with its approved plan. Jt. Stip. No. 26; Resp't Ex. 45. In any
event, it is the inconsistency within District 2 that more clearly raises the issue of
unreasonableness.
29 FMSHRC 975

Likewise, on May 22, Cumberland submitted a revised plan with the 60-day purchase order
proposal. 29 FMSHRC at 550. MSHA responded on May23 that the plan would be approved if the
purchase order were provided within two days, i.e., May 25. ·Id. On May 24, Emerald submitted a
similar proposal, and MSHA responded that the ERP would be approved if Emerald provided a
purchase order by May 26. Id. Nevertheless, on May 25 the agency issued citations to both
operators. Id. at·545. I would think that the agency could have postponed issuing citations at least
until the new deadlines had passed. 3
Similarly, the citations indicated that they could be abated if the operators submitted purchase
orders within 10 days, which would have been June 4. Id. That abatement period is apparently the
source of the juxtaposition of 10 days allowed by MSHA for producing purchase orders versus the
operators' consistent proposal to provide them within 60 days of approval. That is really not the
case, however; for by June 4, the citations had been issued, negotiations had ceased, and the case had
moved on to the adjudicative stage pursuant to section 2 of the MINER Act.
We cannot treat those 10 days as some new grace period for providing a purchase order since
approval was still being withheld. In other words, the condition precedent was back in play. The
judge indicates that "[t]he r-eferrals pray that the citations be affirmed and that Respondents be
ordered to amend their ERPs to establish a 10-day period within which to provide purchase orders.''
29 FMSHRC at 544. In effect, then, the Secretary is only allowing a 10-day post-approval period for
obtaining a purchase order if she prevails before the Commission.· That option was never
realistically on the table prior to the citations being issued.
Unlike my colleagues (slip op. at 14 n.15), I do not believe the decisions in Consolidation
Coal Co. v. Donovan, 656 F.2d 910 (3d Cir. 1981), and Council ofSouthern Mountains v. Donovan,
653 F.2d 573 (D.C. Cir. 1981), provide guidance in this case. The circumstances surrounding those
decisions are not analogous to those presented here. In Consolidation Coal and Council ofSouthern
Mountains, the courts upheld MSHA 's demand for purchase orders for SCSRs that were mandated
through rulemaking and specifically approved by MSHA. 4 The only issue remaining was the speed
with which the devices would be manufactured in sufficient numbers to be placed in all underground
coal mines. Under the circumstances, the requirement for purchase orders served as a market
incentive to ensure that the manufacturers of approved SCSRs would begin production on an
expedited basis, so as to hasten the implementation of the rule. In those cases the operators were not

3

I part company with my colleagues' characterization of the disagreement between
MSHA and the operators in this case: ''whether purchase orders should be provided in two days
or sixty days after approval of the ERPs.'' Slip op. at 11-12. That would only be the case if
MSHA had approved the ERPs on May 25, 2007. Then if the operators had not submitted the
purchase orders within two days, MSHA could have filed for review of the matter. Here, MSHA
was still withholding approval until the purchase orders Were produced, so no post-approval.
grace period was being provided.
4

See generally 30 C.F.R. § 75.1714.

29 FMSHRC 976

being asked to buy a pig in a poke, or at least submit a purchase order for one. The SCSRs had been
fully vetted through the rulemaking and equipment approval processes of MSHA and the National
Institute of Occupational Safety and Health ("NIOSH") before the cases arose.
In contrast, in this case the vetting of underground refuge ch~bers is still a work in progress.
Here, without a rulemaking that would have determined the feasibility of refuge chambers and would
have established criteria for MSHA approval, the agency has by policy memorandum authorized the
use of refuge chambers to meet the MlNER Act's mandate solely on the grounds of West Virginia's
hasty approval, an action which th~t state now appears to be reconsidering. See 29 FMSHRC at 547,
549.
The operators have provided sound reasons for their concerns as to the ultimate feasibility of
underground refuge chambers during the period of negotiation:
(1)

none of the chambers was approved by MSHA (Jt. Stip. No. 28);

(2)

for a least a week during the period between late March and late May, MSHA
ordered its District Managers not to approve ERPs that utilized refuge
chambers equipped with carbon dioxide ("C02") scrubbing systems (Resp't
Ex. 47);

(3)

as cited by the judge, the operators may not have been advised by MSHA that
questions regarding the safety of the scrubbing systems had been resolved (29
FMSHRC at 548-49);

(4)

notwithstanding the judge's dismissal of the operators' concern about excessive heat
being produced by a lithium hydroxide C02 scrubbing system as "theoretical" (id. at
549), only one.test had been performed (Tr. 242), and MSHA could only state that
heat was not a problem in large barricaded areas but could not say the same for the
more confined space of a refuge chamber (Tr. 280-81 ); and

(5)

West Virginia had second thoughts about its hasty approval of such systems as
evidenced by its request to NIOSHfor further testing (29 FMSHRC at 547,
549).

The 60-day grace period sought by the operators was not unreasonable and was .
understandable given the unsettled circumstances set forth above. There were sound reasons for
trying to determine whether the promised benefits of underground refuge chambers were real and not
theoretical. The operators were understandably concerned about certain problems associated with
the chambers that MSHA itself had identified. Thus, the operators undertook to perform their own
tests of the chambers but were stymied by a lack of a system to test. Tr. 264-65. Instead, they sought
more time to determine how the NIOSH tests were progressing.

29 FMSHRC 977

In that regard, it must be emphasized that NIOSH does not operate like the College of
Cardinals electing a new Pope. MSHA, the industry, and miners do not sit around clueless while
waiting for the white puff of smoke signifying a final decision. On the contrary, NIOSH's mine
safety and health research is exceedingly transparent-necessarily s~because much of the research
has to be conducted in mines under actual conditions. Therefore, the results of the tests are
immediately known to the operators and miners in the mines where the testing is taking place.
Presumably, that information gets passed on to others.
It was not necessary; therefore, that the NIOSH testing be completed before the testing could
provide valuable information to the operators that would enable them to make more informed
decisions on whether to utilize refuge chambers to comply with the breathable air requirements. In
retrospect, as my colleagues correctly note (slip op. at 13), the research did not begin until June,
slightly beyond the 60 days originally sought by the operators, but the operators had noway of
knowing that back in March. Finally, as counsel for the Secretary stated at oral argument, MSHA
does not believe the operators' requests for additional time to secure the purchase orders were made
in bad faith. Oral Arg. Tr. 38.

Underlying all of this are what I view as mixed signals sent by Congress in the amended
section 316 of the Mine Act and section 13 of the MINER Act, which orders NIOSH to conduct
research and testing into refuge chambers and submit a report to the Secretary of Labor by December
2007. As counsel for the Secretary responded to my question at oral argument, "It almost makes you
wonder whether Congress intended that that [refuge chambers] actually be part of what would be
required to be submitted." Oral Arg. Tr. 35.

In sum, my basis for reversing the judge comes down to the reasonableness or lack thereof in
MSHA 's negotiation· of ERPs with these particular operators. I find the agency to have been
inconsistent, even within District 2; precipitous with respect to the issuance of the citations at issue,
and dismissive of legitimate concerns, including some of which were raised by its own personnel.
Moreover, counsel for the operators acknowledged that if the plans had been approved, and
even if testing had not been completed during the 60-day grace period, the operators would have
secured purchase orders lest they be cited for not following their plans. Oral Arg: Tr. 19-20. That,
ironically, appears to be the way it is being enforced throughout most of the country.
So we end up with a situation where both mines would have been in compliance 10 days
before the hearing below ifMSHA's approval had been issued in the first place. Returning to my
observations at the outset of this opinion, Congress has spoken loudly and clearly in the words of the
MINER Act, but urgency should not foreclose reasonableness and consistency in carrying out that
mandate.

29 FMSHRC 978

Accordingly, I would reverse the judge.

Distribution
R. Henry Moore~ Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222
Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Judith Rivlin, Esq.
United Mine Workers of America
8315 Lee Highway
Fairfax, VA 22031
Administrative Law Judge Michael Zielinski
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

29-FMSHRC 979

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

December 26, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. CENT 2007-228-M
A.C. No. 29-01899-114181
Docket No. CENT 2007-230-M
A.C. No. 29-01899-102372
Docket No. CENT 2007-232-M
A.C. No. 29-00708-99064 ABS

v.
JAMES HAMILTON CONSTRUCTION

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) ("Mine Act"). On October 23, 2007, the Commission received from James
Hamilton Construction ("Hamilton") an amended motion by counsel seeking to reopen penalty
assessments that had become final orders of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a). On July 12, 2007, the Commission had denied without prejudice
Hamilton's first request to reopen penalty assessments that had become final orders. James
Hamilton Construction, 29 FMSHRC 569. 1 The Commission instructed that if Hamilton chose
to refile the motion to reopen, it should set forth an explanation to justify its failure to timely
contest the proposed penalty assessments and to disclose with specificity what citations and
associated penalties are included in the request for relief. 29 FMSHRC at 570-71.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order ofthe Commission. 30 U.S.C. § 815(a).

1

In our July 12, 2007 order, we also consolidated docket numbers CENT 2007-228-M,
CENT 2007-230-M, and CENT 2007-232-M, along with docket numbers CENT2007-229-M
and CENT 2007-231-M. Docket numbers CENT-229-M and CENT 2007-231-M are apparently
not at issue in the present proceeding, and we therefore unconsolidate those two cases.
29 FMSHRC 980

During 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued numerous citations to Hamilton. 2 In Hamilton's amended motion to reopen
and attached affidavit, Hamilton states that it failed to timely contest the citations and proposed
penalties at issue because its safety director was engaged in air quality compliance matters that
required his immediate attention and, when he turned to the penalty proposals, he discovered that
the time to respond had passed. 3 In response, the Secretary states that she does not oppose ..
reopening the proposed penalty proceedings. She also states that penalties in CENT 2007-232-M
have been paid.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C .F .R.
§ 2700. l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

2

Because neither party has submitted the proposed penalty assessments at issue, we are
unable to determine how long Hamilton waited before bringing a motion to reopen the penalty
assessments. If Hamilton brought its motion more than a year after the proposed penalty
assessments became final Commission orders, its request may be untimely. Under Federal Rule
of Civil Procedure 60(b), any motion for relief must be made within a reasonable time, and in the
case of mistake, inadvertence, or excusable neglect, not more than one year after the order was
entered. E.G. Voit & Sons, 29 FMSHRC 957, 958 (Dec. 2006).
3

We note wording problems with the motion and affidavit because the operator states at
various points that it seeks to re-open the "citations" at issue. However, at this juncture in the
proceedings, Hamilton is actually seeking to re-open the proposed penalties that are associated
with the citations. Additionally, the reasoning provided in the motion and affidavit is
problematic because the operator seeks to re-open citations that were issued from April 2006 to
September 2006. Presumably the associated penalty proposals also were issued over a number of
months, and we question whether Hamilton's safety director could have been solely occupied
with one matter for such a long period of time.
29 FMSHRC 981

Having reviewed Hamilton's.amended motion to reopen, in the interest of justice, we
remand this matter to the Chief Administrative Law Judge for a determination of whether good
cause exists for Hamilton's failure to timely contest the penalty proposals and whether relief
from the final orders should be granted. If it is determined that such relief is appropriate, this
case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700;

29 FMSHRC 982

Distribution:
Jeffrey A. Dahl, Esq.
Keleher & McLeod, P.A.
P.O. Box 506
Albuquerque, NM 87103-0506
W. Christian Schumann, Esq.
Office of the Solicitor
U. S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D. C. 20001

29 FMSHRC 983

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

December 26, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2008-111-M
A.C. No. 02-00024-123320 ABS

V.

JAMES HAMILTON CONSTRUCTION

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) ("Mine Act"). On October 23, 2007, the Commission received from James
Hamilton Construction ("Hamilton") a motion by counsel seeking to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On July 26, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to Hamilton. In Hamilton's motion to reopen,
it asserts that it responded to MSHA within 30 days of receipt of the proposed penalty
assessment. It claims that it received the proposed assessment form on August 10, 2007,1 and
that the final day to respond fell on September 9, which is a Sunday. Accordingly, Hamilton
asserts that it mailed its contest on Monday, September 10, which would have been timely. In
response, the Secretary states that she does not oppose reopening the proposed penalty

1

We note that the Assessment Form, which is attached as an Exhibit to Hamilton's
motion, is stamped "Received August 6, 2007."
29 FMSHRC 984

proceeding.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.I(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
On the basis of the present record, we are unable to evaluate the merits of Hamilton's
position. In the interest of justice, we remand this matter to the Chief Administrative Law Judge
for a determination of whether Hamilton failed to timely contest the penalty proposal and, if so,
whether good cause exists for granting relief from the final order. If it is determined that such
relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F .R. Part 2700.

ss10ner

29 FMSHRC 985

Distribution:
Jeffrey A Dahl, Esq.
Keleher & McLeod, P.A.
P.O. Box AA
Albuquerque, NM 87102
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D. C. 20001

29 FMSHRC 986

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

December 26, 2007

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

Docket No. WEST 2008-168
A.C. No. 42-01890-123921

v.
CANYON FUEL COMPANY, LLC

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) ("Mine Act"). On November 19, 2007, the Commission received from
Canyon Fuel Company, LLC ("Canyon") a motion seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On January 9, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued numerous citations to Canyon after a regular safety inspection. On August 2,

MSHA issued an assessment with proposed penalties of $59,392, as a result of the previously
issued citations. In its motion, Canyon states that its safety manager erroneously believed that he
had timely filed a contest of the penalties. However, Canyon states that, due to his mistake, the
contest of the penalties was never timely submitted. On November 6, Canyon received a letter
notifying it that the proposed assessment was a final order and that Canyon had an outstanding
balance of $59,392. In response, the Secretary states that she does not oppose Canyon's request
to reopen.

29 FMSHRC 987

We have held thatin appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). fu evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the-Commission and its Judges shall be guided so far-as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have alSo observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Canyon's request, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Canyon's failure to timely contest the penalty proposal and whether relief from the final order
should be granted. If it is determined that such relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

~
Cha:nan

Michaei:DUffy,

29 FMSHRC 988

Distribution:
Laura E. Beverage, Esq.
Jackson Kelly, PLLC
1099 18th Street, Suite 2150
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. DepartmentofLabor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939 · ·
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D. C. 20001

29 FMSHRC 989

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

December 26, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEYA 2008-78
A.C. No. 46-06051-120049

V.

MAMMOTH COAL COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) ("Mine Act"). On October 23, 2007, the Commission received from
Mammoth Coal Company ("Mammoth") a motion seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On June 12, 2007, 'the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to Mammoth covering a number of citations
including Citation No. 7254427. In its motion, Mammoth states that its administrative personnel
misplaced the proposed penalty assessment form and, as a result, mistakenly failed to fill out the
form to contest the penalty for Citation No. 7254427. Mammoth further asserts that it learned of
its mistake upon receiving a delinquency letter from MSHA. In response, the Secretary states
that she does not oppose Mammoth's request to reopen the proposed penalty assessment
proceeding.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
29 FMSHRC 990

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR''). In evaluating requests to
reopen final section 1OS(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700. l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 1S FMSHRC at 787: We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted. ·
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Mammoth's request, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Mammoth's failure to timely contest the penalty proposal and whether relief from the final order
should be granted. If it is determined that such relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

29 FMSHRC 991

Distribution:
Justin A. Rubenstein, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501
W. Christian Schumann, Esq.
Office of the Solicitor
U. S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James;, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D. C. 20001

29 FMSHRC 992

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

December 26, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMlNISTRATION (MSHA)

Docket No. WEVA 2008-79
A.C. No. 46-08867-120058

V.

MAMMOTH COAL COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) ("Mine Act"). On October 23, 2007, the Commission received from
Mammoth Coal Company ("Mammoth") a motion seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify tl;te Secretary of Labor no later than 3 0 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On June 12, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to Mammoth covering a number of citations
and orders. fu its motion, Mammoth states that its administrative personnel incorrectly filled out
the proposed penalty form. Mammoth claims that, as a result of these mistakes, payment was
made to MSHA for citations intended to be contested, no payment was made for citations that
were not to be contested, and Mammoth failed to contest two proposed penalties for orders
already under dispute in Docket Nos. WEVA 2006-923-R and WEVA 2006-876-R. Mammoth
further asserts that it learned of its mistakes upon receiving a delinquency letter from MSHA. fu
response, the Secretary states that she does not oppose Mammoth's request to reopen the
proposed penalty assessment proceeding.

29 FMSHRC 993

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 {May 1993) ("JWR."). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
. from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc~, 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Mammoth's request, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Mammoth's failure to timely contest the penalty proposal and whether relief from the final order
should be granted. If it is determined that such relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

29"FMSHRC 994

Distribution:
Justin A. Rubenstein, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501
W. Christian Schumann, Esq.
Office of the Solicitor
U. S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939 · ·
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D. C. 20001

29 FMSHRC 995

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

December 26, 2007

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

Docket No. WEVA 2008-249
A.C. No. 46-08436-122939 A

v.
BENNY PRESLEY

BEFORE: Duffy, Chairriian; Jordan and Young, 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. (2000) ("Mine Act"). On November 21, 2007, the Commission received from
Benny Presley ("Presley") a motion seeking to reopen a penalty assessment against Presley under
section l IO(c) of the Mine Act, 30 U.S.C. § 820(c), that may have become a final order of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under the Commission's Procedural Rules, an individual charged under section l IO(c)
has 30 days following receipt of the proposed penalty assessment within which to notify the
Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.
The Department of Labor's Mine Safety and Health Administration ("MSHA") issued
several orders at the Upper Big Branch Mine, which is operated by Performance Coal Company
("Performance"). In his motion, Presley states that he was a foreman at Performance and was
questioned during a special investigation, pursuant to section 1 lO(c) of the Mine Act, 30 U.S.C.
§ 820(c). Sometime after the investigation, MSHA issued an assessment, A.C. No. 46-08436122939 A, to Presley. However, Presley states that he moved to a new address after the
investigation and never received the proposed assessment. His motion further states that on
October 26, 2007, he received a delinquency letter from the Department of Labor, and he learned
29 FMSHRC 996

of the penalty. On November 21, Presley filed this motion and notified the Secretary of his
desire to contest the penalty assessment. The Secretary states that she does not oppose the
motion to reopen the assessment.
The record before us indicates that Presley moved his residence, and that the proposed
assessment was apparently sent to the wrong address. Consequently, we conclude that Presley
was never notified of the penalty assessment, within the meaning of the Commission's
Procedural Rules, until at least October 26, ?007, the date of the delinquency letter from the
Secretary. In his motion to the Commission, filed with the Commission on November 21,
Presley clearly states his intent to contest the proposed penalty assessment against him. We
conclude from this that Presley timely notified the Secretary that he wished to contest the
proposed penalty, once he had actual notice of the proposed assessment. See Stech, emp. by
Eighty-Four Mining Co., 27 FMSHRC 891, 892 (Dec. 2005).
Accordingly, the proposed penalty assessment is not a final order of the Commission.
We remand this matter to the Chief Administrative Law Judge for assignment to a judge. This
case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700.

~·~
°

MiCfuleI:U(fy,Chairman

29 FMSHRC 997

Distribution:
Carol Ann Marunich, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D. C. 20001

29 FMSHRC 998

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, D.C. 20001-2021

December 28, 2007

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2006-60-RM

v.
EMPIRE IRON MINING PARTNERSHIP

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
DECISION
BY: Jordan and Young, Commissioners
This proceeding, arising under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2000) ("Mine Act" or "Act"), involves the contest ofa citation issued to
Empire Iron Mining Partnership ("Empire") upon investigation of a fatal accident that occurred
after a miner attempted to free a stuck equipment part. Administrative Law Judge David Barbour
concluded that the Secretary of Labor properly alleged alternative violations in the citation, and
affirmed the violation of30 C.F.R. § 56.14105. 1 29 FMSHRC 317, 331(Apr.2007) (ALJ). He
1

Section 56.14105, entitled "Procedures during repairs or maintenance," provides:
Repairs or maintenance of machinery or equipment shall be
performed only after the power is off, and the machinery or
equipment blocked agai.nst hazardous motion. Machinery or .
equipment motion or activation is permitted to the extent that
adjustments or testing cannot be performed without motion or
activation, provided that persons are effectively protected from
hazardous motion.

30 C.F.R. § 56.14105.
29 FMSHRC 999

did not reach the alleged violation of 30 C.F:R. § 56.12016. 2 Id. at 329. For the reasons that
follow, we affirm the Judge's decision.
II.
Factual and Procedural Background
The relevant facts are largely undisputed. Empire operates the Empire Mine, an open pit
mine where taconite ore is mined and processed into ore pellets for use in the steelmaking
industry. 29 FMSHRC at 319; Jt. Ex. 6, Stip. 1. After extraction, taconite ore is taken to an ore
concentrator, where iron is separated from rock and then concentrated. 29 FMSHRC at 319.
After the ore is filtered and concentrated, it is sent to the pellet plant, where it is fed into balling
drums. Id. In the drums, the ore concentrate is combined with a bindingagent, Bentonite; which
fixes the concentrate. Id.; Tr. 130. The material is further formed into balls or pellets in the
drums. 29 FMSHRC at 319. The pellets then travel into a kiln, where they are heated so that the
binding agent fuses with the concentrated ore. Id. The hot pellets are then transferred to a
cooler. Id.
A cooler is a ring-shaped machine that has a moving floor frame comprised of 30
segments, or "pallets," that rotate around the cooler's circumference. 29 FMSHRC at 319; Jt.
Ex. 1, Stip. 16. The drive motor of the cooler is powered by electricity. 29 FMSHRC at 319. A
dump arm with a wheel is attached to each pallet. Id. The hot pellets are deposited onto the
pallets, where they cool as the pallets rotate. Id. The pellets are deposited so that most of the
load of the pellets is on one side of the pallet. Id. A rail above the wheel on a pallet prevents the
off-centered pallet from tipping over and dumping the pellets. Id. Each pallet eventually rotates
to a dumping point, where the rail changes from a horizontal position to almost a vertical
position. Id. With the rail no "longer holding down the dump arm and pallet, the pallet moves
into an almost vertical position, and the pellets fall off the pallet into a hopper. Id. Gravity
causes the pallet to dump. Id. at 320.

2

Section 56.12016, .entitled "Work on electrically-powered equipment" provides:
Electrically powered equipment shall be deenergized before
mechanical work is done on such equipment. Power switches shall
be locked out or other measures taken which shall prevent the
equipment from being energized without the knowledge of the
individuals working on it. Suitable warning notices shall be posted
at the power switch and signed by the individuals who are to do the
work. Such locks or preventive devices shall be removed only by
the persons who installed them or by authorized personnel.

30 C.F.R. § 56.12016.
29 FMSHRC 1000

Occasionally a pallet sticks in the horizontal position and will not mov~ .into a vertical
position to dump the pellets. Id. When a pallet sticks, the "sure dump system" is initiated. Id.
Under that system, a hydraulic cylinder attached to the dump arm is compressed. Id. The
cylinder applies force to the arm of the pallet and usually frees it. Id.

If the sure dump system does not free the stuck.pallet, the cooler continues to travel until
the dump arm contacts a limit switch. Jt. Ex. 6, Stips. 20, 21. The dump system has two limit
switches: the alarm switch and the stop switch. 29 FMSHRC at 323. The alarm switch sends a
signal to the cooler control room operator. Id. at 320, 323. The stop limit switch opens an
electrical circuit that must be closed in order for the cooler to run. Id. at 323; Tr, 67. The stop
switch does not turn off electricity to the circuit. 29 FMSHRC at 323.
When the cooler's circuit is disrupted, the control room operator will attempt to start the
cooler by pressing the start button in the control room. Tr. 53, 185. When he or she does so, that
start command stays in the system for five seconds. Tr. 185. During that five-second period, the
system examines whether the cooler's drive motor circuit is complete. Tr. 82-83. If the pallet
becomes unstuck during that five-second period, the cooler will start. Tr. 185 ..
On November 6, 2005, a pallet on Empire's No. 4 cooler became stuck. 29 FMSHRC at
317. After the pallet stuck and the cooler stopped, the control room operator made 22 attempts in
approximately three minutes to restart the. cooler. Id. at 322-23. All of the attempts were
unsuccessful. Id. at 323. Two assistant plant operators, Chad Weston and Jeremy Ring, were
instructed to free the stuck pallet. Id. at 317, 320-21. Weston tried to position a porta-power3
correctly under the stuck pallet's dump arm. Id. at 321. Weston was unable to position the
porta-power after trying twice to do so. Id. Ring then tried to position the porta-power and, as he
did so, the pallet arm released by itself. Id. Weston had moved between the dump arm and·the
guide rail. Id. When the pallet became unstuck and moved on its own, Weston was caught in the
pinch point between the dump arm and the guide rail and was fatally injured. 4 Id.
MSHA Inspector William Dethloff investigated the accident. Id. He stated that placing a
porta-power under the dump arm of a pallet usually is not dangerous. Id. at321-22. The
inspector explained that a miner steps back once the porta-power has been placed and before the
dump arm frees the pallet. Id. at 322. If the pallet is freed before the miner steps back, the pallet
swings away from the miner's hand. Id.

3

A porta-power is a portable hydraulic pump used to add force to the stuck pallet arm.
29 FMSHRC at 320.
4

At 11 :49:01, a start command was given. E. Ex. 4. During the following five-second
interval, the stuck pallet released while Weston was positioned in the pinch point. 29 FMSHRC
at 321. It is undisputed that at the time of the accident, the stop switch operated as designed, and
that the accident was not caused by the drive motor unexpectedly starting up while Weston was
trying to free the stuck pallet. Id. at 323.
29 FMSHRC 1001

Shortly after the accident, Empire requested and received MSHA's approval to guard the
area involved in the accident. Id. at 324. MSHA later issued a citation to Empire for its failure·
to have in place guards on the day of the accident, and Empire did not contest the citation. Tr.
34, 37.
On February 21, 2006, Inspector Dethloffissued Citation No. 6192002 to Empire. Jt. Ex.
6, Stip. 8. The citation alleged violations of30 C.F.R. § 56.12016 forthe failure to deenergize
and lock out the cooler before mechamcal work was performed on it and/or 30 C.F.R.
§ 56.14105 for the failure to turn off power and block against hazardous motion before
performing repairs or maintenance. Id:, Stip. 9. The citation alleged that the fatal accident was
the result of the operator violating either or both of the standards. 29 FMSHRC at 318 n.l. The
inspector testified that, because the guarding was already in place by the time that the citation
was issued, miners were protected from hazardous motion. Id. at 324. MSHA determined that
the only appropriate measures that remained to be taken to abate Citation No. 6192002 were to
establish new policies and procedures to require cooler drives to be deenergized and locked out
and to post a warning sign at the switch before a miner could begin work to free a stuck pallet.
Id. In addition, Empire was required to implement plans to train miners who worked on stuck
pallets. Id. The citation also alleged that the violations resulted from the operator's significant
and substantial ("S&S") failure to comply with the standards. Id. at 318.
On April 26, 2006, the Secretary moved to amend Citation No. 6192002 from stating that
the operator violated section 56.12016 "and/or" section 56.14105, to stating that the operator
violated only one of the two standards. Jt. Ex. 6, Stip. 10. In addition, she moved to amend the
citation to state that the cited conditions were not a cause of injury on November 6~ 2005. Id.,
Stip. 11. Empire took no position on the motion, and the Judge granted it. 29 FMSHRC at 318
n. l. On May 31, 2006, MSHA issued the amended citation to Empire. Id. Empire challenged
the amended citation, and the matter proceeded to hearing.
The Judge affirmed Citation No. 6192002 to the extent it alleged that Empire violated
section 56.14105. Id. at 331. He first determined that the Secretary was permitted to allege
violations in the alternative in the citation. Id. at 326. Rejecting the operator's argUment that
analogy to the Federal Rules of Civil Procedure was inappropriate, the Judge reasoned that
administrative pleadings are liberally construed and easily amended as long as adequate notice is
provided and there is no prejudice to the opposing party. Id. He found that Empire had adequate
notice of the alternative standards and was not prejudiced by the charge that it violated one of
them. Id. He further determined that the operator was able to prepare for the hearing, and that it
knew what to do to abate the citation. Id. at 326-27. The Judge concluded that Empire had
violated section 56.14105 because freeing the stuck pallet involved the "repair or maintenance"
of the cooler within the meaning of the standard, and the cooler had not been deenergized or
locked out, nor had the dump arm been blocked against hazardous motion. Id. at 329. He did
not reach the issue of whether Empire violated section 56.12016. Id. The Judge affirmed the ·
S&S designation and dismissed Empire's contest. Id. at 329-30, 331.

29 FMSHRC 1002

Empire petitioned for review of the Judge's decision, and the Commission granted the
petition. 5
.
II.

Disposition
A.

Alternative Violations

Empire argues that the Judge erred in permitting the Secretary to allege alternative
violations in the citation. E. Br. at 7-13. It asserts that alternative allegations violate the
particularity requirements of section 104(a) of the Mine Act, 30 U.S.C. § 814(a). Id. at 7-8.
Empire further contends that it did not know what to do to abate the citation because sections
56.14105 and 56.12016 set forth distinct and contradictory requirements. Id. at 11-12.
The Secretary responds that the Judge correctly concluded that a citation may allege
alternative violations. S. Br. at 7-14. She contends that section 104(a) of the Mine Act does not
limit her ability to cite violations in the alternative. Id. at 11-12. The Secretary submits that she
cited alternative violations because, although she believes that section 56.12016 applies to
mechanical work being performed on electrically-powered equipment even when the hazard .
posed is equipment movement rather than electrical shock, the Ninth Circuit held to the contrary
in Phelps Dodge Corp. v. FMSHRC, 681 F .2d 1189 (9th Cir. 1982). The Secretary explains that
citing violations in the alternative allowed her to advance her disagreement with the holding in
Phelps Dodge, while avoiding being left without an enforcement action if the Judge followed
that holding in this case, which arises in the Sixth Circuit. Id. at 7-8; Tr.14. The Secretary
further contends that Empire was not prejudiced by abating both violations alleged in the citation.
S. Br. at 13-14.
We conclude that the Secretary's citation of alternative violations of section 56.14105 and
56.12016 in this instance did not violate the particularity requirements of the Mine Act. Section
104(a) of the Act provides in part that, "[e]ach citation shall be in writing and shall describe with
particularity the nature of the violation, including a reference to the provision of the Act,
standard, rule, regulation, or order alleged to have been violated." 30 U.S.C. § 814(a). The
Commission has previously recognized that the purpose of this particularity requirement is to
"allow[] the operator to discern what conditions require abatement, and to adequately prepare for
a hearing on the matter." Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 379(Mar. 1993).

5

In addition, Empire filed a motion requesting oral argument. The Commission hereby
denies the request.
29 FMSHRC 1003

Substantial evidence supports the Judge's determination that Empire was able to discern
what conditions required abatement and to prepare for a hearing on the matter. 6 First, Empire
does not deny that it was able to prepare for a hearing. See E. Br. at 12. Second, we find no
evidence that the operator was unable to discern what conditions required abatement. 29
FMSHRC at 327. The abatement actions included implementing new policies and procedures
that required miners working to free a stuck pallet to deenergize and lock out the cooler drive and
post a warning notice, and providing training for miners working to free stuck pallets. Gov't Ex.
3. It is undisputed that the operator adequately abated the citation.
Moreover, we find unpersuasive Empire's argument that it did not know what to do to
abate the citation because sections 56.14105 and 56.12016 set forth different requirements for
compliance. As Empire argues, section 56.12016 requires that, before work is done on
electrically powered equipment, the equipment must be locked out or other measures taken to
prevent the accidental re-energization of the equipment, while section 56.14105 does not
specifically require that equipment be locked out. The requirements of the standards overlap,
however, in that section 56.12016 requires that equipment must be deenergized before
mechanical work is performed on the equipment, while section 56.14105 provides that repairs or
maintenance of equipment must be performed after the power is off. Empire's abatement action
involving implementing procedures for deenergizing and locking out the cooler abated in part
both alleged violations. 29 FMSHRC at 397. Thus, Empire was not presented with a situation in
which it could abate only one of the violations and did not know which to abate. 7
Furthermore, we disagree with the operator that the language of section I 04(a) prohibits
the Secretary from alleging alternative violations in this instance. Section 104(a) refers to ''the
provision of the ... standard," in the singular, to be set forth in a citation. However, as noted by
the Secretary, Congress has stated in the Dictionary Act that, "In determining the meaning of any
act of Congress, unless the context indicates otherwise, words importing the singular include and
apply to the plural." S. Br. at 11 (quoting 1 U.S.C. § 1). We see nothing in the context of the
section 104(a) language referred to by Empire that indicates that only a single provision may be

6

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., 11FMSHRC2159, 2163 (Nov.1989) (quoting Consolidation Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)).
7

We further reject Empire's assertion that it was prejudiced by being required to comply
with "two distinctly contradictory allegations requiring different abatements" (E. Br. at 10),
since, even accepting that the standards required distinctly different abatement actions, the
Secretary could have required such abatement through the issuance of separate citations. In fact,
as the Secretary stated, because the inspector issued one citation alleging alternative violations,
the operator faces the possibility ofreceiving only one civil penalty rather than two. S. Br. at 14.
29 FMSHRC 1004

described in Citation No. 6192002. In fact, considering that language in context, it is the "nature
of the violation" that must be described with particularity. Here, as the Judge found, "the
alternatively charged violations were based on the same underlying facts" and involved standards
with similar requirements. 29 FMSHRC at 326. Thus, even though the citation set forth
alternative violations, we conclude that the nature of the violation was described with sufficient
particularity.
We emphasize that our holding is limited to the facts of this case. Although it was cited
for alternative violations in a citation, Empire was able to prepare for a hearing and knew what to
do to abate the citation. Furthermore, as the Secretary states, the Ninth Circuit's decision in
Phelps Dodge created some legal doubt regarding which of the two standards applied.-8 We
caution the Secretary that circumstances may exist in other cases that would make improper the
citation of alternative violations.

B.

Alleged Violation of Section 56.14105

Section 56.14105 requires in part that "[r]epairs or maintenance of machinery or
equipment shall be performed only after the power is off, and the machinery or equipment
blocked against hazardous motion." 30 C.F.R. § 56.14105. Empire contends that the Judge
erred in finding a violation of section 56.14105 because unsticking a pallet is not repair .or
maintenance within the meaning of the standard. E. Br. at 14-16. It argues that even if that
activity may be considered repair or maintenance, unsticking a pallet falls within the standard's
exception that "Machinery or equipment motion or activation is permitted to the extent that
adjustments or testing cannot be performed without motion or activation, provided that persons
are effectively protected by motion." 30 C.F.R. § 56.14105; E. Br, at 14-16. Empire explains
that movement of the arm was essential to unsticking the pallet and that it had provided effective
protection from hazardous motion by means of training, warning against proximity to the pinch
point, and the location of the pinch point itself. E. Br. at 17.
The Secretary responds that the Judge properly concluded that the operator violated
section 56.14105 because the operator had been engaged in repair or maintenance work while
attempting to free the stuck pallet, and the power was not completely removed from the drive
motor. S. Br. at 14-19. She asserts that the Commission should reject Empire's argument that
the exception contained in section 56.14105 applied. Id. at 19-20.
The Commission has defmed the term "repair" to mean '"to restore by replacing a part or
putting together what is tom or broken: fix, mend ... to restore to a sound or healthy state.'" .
8

We agree with the dissenting Judge in Phelps Dodge that the language of section
56.12016 "is clear and unambiguous." 681 F.2d at 1193 (Boochever, dissenting). As Judge
Barbour noted below, "the standard means exactly what it says - to wit, that ' [e]lectrically
powered equipment shall be de[-)energized before mechanical work is done on such
equipment."' 29 FMSHRC at 328 (alterations in original).
29 FMSHRC 1005

Walker Stone Co., 19 FMSHRC 48, 51(Jan.1997), aff'd, 156 F.3d 1076 (citations omitted).
Quoting in part the Dictionary of Mining, Mineral, and Related Terms, it further defined
"maintenance" as "'the labor of keeping something (as buildings or equipment) in a state of
repair or efficiency; care, upkeep ... "' and '" [p]roper care, repair, and keeping in good order."'
Id. In Walker Stone, the Commission noted that obstructing rock caused the crusher's drive
motor to stall, rendering the crusher defective or inoperable until the rock was removed. Id.
Accordingly, it concluded that breaking up rocks to unclog a crusher constituted "repair" or
"maintenance" within the meaning of section 56.14105. Id. It explained that the removal ofrock
was necessary to restore the crusher to a sound state or to keep it in a state of repair or efficiency,
and that a malfunctioning condition had been remedied by restoring the crusher to the same
condition it was in before it became clogged. Id.

The Judge's conclusion that Empire was involved in the "repair or maintenance" of
machinery when miners worked to free the stuck pallet (29 FMSHRC at 329) is consistent with
Commission precedent. A malfunctioning condition on the cooler had to be remedied by
restoring the cooler to the same condition it was in before the pallet became stuck. 9 Thus, freeing
the stuck pallet of the cooler was necessary to restore the cooler to a sound state or to keep it in a
"state of repair or efficiency." Walker Stone, 19 FMSHRC at 51.
Moreover, substantial evidence supports the judge's determination that the pallet was not
deenergized or blocked against motion. 10 First, it is undisputed that the dump arm was not

9

We reject Empire's argument that the Judge's conclusion did not focus on industrial
realities, i.e., that such work was not considered in the industry to be repair or maintenance.
Although Empire's witnesses testified that they considered freeing the stuck pallet to be
operational work rather than repair or maintenance (Tr. 147, 198), Inspector Dethlofftestified
that freeing the stuck pallet was maintenance (Tr. 76). The Judge, having noted such conflicting
testimony (29 FMSHRC at 323 & n.14, 324 n.15), found that freeing the stuck pallet involved
repair or maintenance. Id. at 329. The Commission has repeatedly recognized that a judge's
credibility determinations are entitled to great weight and may not be overturned lightly. Farmer
v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh Coal Co., 3
FMSHRC 2767, 2770 (Dec. 1981). We see no reason to overturn the judge's finding. In any
event, the Tenth Circuit rejected the operator's similar argument in Walker Stone that breaking
up rocks to unjam machinery was not recognized in the industry as repair or maintenance of such
machinery. 156 F.3d at 1081. The Court noted that in defining maintenance, the Commission
had appropriately relied on a dictionary specifically focused on the mining industry; Id.
10

Our dissenting colleague attempts to transform this case into a violation of a guarding
standard. Slip op. at 14-16. However, the guarding standard, 30 C.F.R. § 56.14107(a), and
section 56.14105 impose separate and distinct duties upon the operator. The latter standard not·
only requires that equipment be blocked against hazardous motion, but also that the power must
be of£ The dissent also discredits the additional abatement required by MSHA in this case,
including new policies and procedures requiring the cooler drive to be de-energized and locked
29 FMSHRC 1006

blocked against hazardous motion, as evidenced by the unencumbered motion that killed Weston.
29 FMSHRC at 329. As to whether the cooler was deenergized, we reject Empire's argument
that the cooler was "turned off' by the operation of the limit switch. E. Br. at 14, 16 & n.6. It is
undisputed that, although the stop switch shut down the cooler by opening the electrical circuit
necessary to run the cooler, the switch did not tum off electricity to the circuit. 29 FMSHRC at
323, 329; Tr. 44, 67, 77-78, 82. The judge therefore correctly held that the cooler drive motor
was not "off' within the meaning of the standard because the stop limit switch did not deenergize or lock out the power. 29 FMSHRC at 329.
The Judge erred, however, by failing to examine whether Empire's actions in working to
free the stuck pallet fell within the exception that machinery motion is permitted to the extent
that adjustments cannot be performed without motion, provided that persons are effectively
protected from hazardous motion. As argued by Empire, it would appear that movement of the
pallet dump arm was integral to the work of releasing the arm. E. Br. at 17. Nevertheless, even
if adjustments could not be performed without motion of the dump arm, we, along with our
dissenting colleague, slip op. at 14, disagree with Empire that it provided adequate protection
against hazards. Id. Contrary to Empire's assertions, the position of the pinch point clearly did
not provide adequate protection to Weston from hazardous motion. Moreover, the warnings and
training provided by Empire were not adequate protection. As the Tenth Circuit has recognized,
the fact that an employee failed to comply with company policy does not mean that the company
provided effective protection within the meaning of the exception. Walker Stone, 156 F.3d at
1085. Thus, although the Judge erred by failing to consider the exception, we consider such error
to be harmless and affirm in result the Judge's determination that Empire violated section
56.14105.

out with a warning notice at the switch, and additional training of miners ..
29 FMSHRC 1007

ill.
Conclusion

For the foregoing reasons, we affirm the Judge's determination that the Secretary properly
alleged alternative violations in Citation No. 6192002 and that Empire violated section
56.14105. 11

Mi~~:::..-·-.s_,.,iir;,_-e_r

11

_ _ _ __

We do not reach the issue of whether Empire violated section 56.12016.
29FMSHRC 1008

Chairman Duffy, dissenting:
Three mandatory safety standards were cited in this case, only one of which is implicated
in the fatal accident that occurred in the cooling facility of Empire's taconite plant. The
Secretary cited the first standard three months after the fatality, on January 30, 2006, when she
issued citation number 6175971. Tr. 34, 37. The citation alleged a violation of30 C.F.R.
§ 56.14107(a), which provides that "Moving machine parts shall be guarded to protect persons
from contacting· gears, sprockets, chains, drive, head, tail, and takeup pulleys,.flywheels,
couplings, shafts, fan blades, and similar moving parts that can cause injury." ·See Mine Safety &
Health Admin., Data Retrieval System ("MSHA DRS"), http://www.msha.gov/drs/drshome.htm
(Empire Iron Mining Partnership ("Empire Iron"), Violations).
By the time the citation was issued, Empire had already installed guarding around the
pinch point between the dump arm and the guide rail which caused the death of Mr. Weston so
that the citation was, in effect, abated upon issuance. 29 FMSHRC 317, 324 (Apr. 2007) (ALJ);
Tr. 33, 143; E. Ex. 9. Empire did not contest that citation and it appears that the operator paid
the penalty of $35,500. See MSHA DRS; http://www.msha.gov/drs/drshome.htm (Empire Iron,
Violations) ..
On February 21, 2006, three weeks after the guarding citation was issued, the Secretary
issued a citation alleging that Empire had also violated 30 C.F.R. § 56.12016 and/or 30 C.F.R.
§ 56.14105. 29 FMSHRC at 317-18 & n.l; Jt. Ex. 6, Stip. 9. Finally, on April 26, 2006, five and
one-half months after the fatal accident, the Secretary successfully moved to amend the February
21, 2006, citation to allege that Empire had violated either section 56.12016 or section 56.14105,
but not both. 29 FMSHRC at 318, n. l; Jt. Ex. 6, Stip. 10. fumy view, the matter should have
ended with the issuance of the earlier guarding citation, for I believe that the standard set forth in
section 56.12016 does not apply in this case, and that Empire complied with the standard set
forth in section 56.14105 to the extent that the standard was not duplicative of section
56.14107(a); Accordingly, I would reverse the judge and vacate the citation on review. fu so
doing, I take exception to the judge's and my colleagues' conclusion that the Secretary may
allege violations of alternative standards in the same citation.
I have highlighted the time line in this case in recognition of the fact that in the aftermath
of a serious accident or fatality, it is not uncommon for the Secretary to take weeks, months, or
even years to issue citations or orders for the underlying violations alleged to have been found
after extensive investigation. The vast majority of enforcement actions, however, are taken
contemporaneously with an inspector's discovery of what he deems a violation. Whatever
position the Commission takes, therefore, on the issue of whether section 104(a) of the Act
authorizes the Secretary to allege violations of alternative standards in the same citation, will
apply to on-the-spot enforcement actions, where abatement is immediately required, as well as to
enforcement actions taken after extensive deliberation by the Secretary's inspectors and
solicitors, and long after abatement measures have been taken to address the conditions giving
rise to the accident or fatality.

29 FMSHRC 1009

Thus, notwithstanding the majority's disclaimer that its holding "is limited to the facts of
this case" (slip op. at 7), they have embraced the proposition that the Secretary can allege
violations of separate standards in the same citation. I believe this to be a troublesome precedent
because it will result in mixed signals to operators regarding the measures necessary to abate
citations.

In approaching the issues presented here, it is helpful to consider how the Mine Act is
designed to operate. First, the Secretary, under section 101 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) ("Mine Act" or "Act"), sets mandatory safety
and health standards for mining and mineral processing that, if followed, will reduce, if not
eliminate, accidents, injuries, and fatalities. 30 U.S.C. § 811. Then, pursuant to section 103 of
the Act, the Secretary's representatives inspect mines to determine whether the conditions and
practices they encounter comport with the standards. Id.§ 813. If those conditions or practices
do not meetthe standards, enforcement action is taken in the form of citations and orders issued
pursuant to section 104 of the Act. Id. § 814. The consequences of those enforcement actions
are twofold. First, under risk of a mine closure order and prior to the opportunity for a hearing to
determine the legitimacy of the Secretary's enforcement action, the operator must abate the
citation or order by correcting the conditions or practices so as to conform, once again, with the
standard. Id. § 814(b). Second, sanctions are imposed-civil penalties, or, in more egregious
cases, closure orders or criminal penalties. Id. §§ 814, 815, 820.
For purposes of deciding this case, I find that the ultimate method of abatement provides
the starting point for determining which standards Empire was appropriately charged with
violating. In other words, what corrective actions was Empire required to take in order to reestablish compliance with the standards and were those actions warranted by the terms of the
standards cited? When all is said and done, the operator was required to provide guarding
around the hazardous area, which constitutes abatement of the citation issued for the violation of
section 56.14107(a), and to de-energize, lock out, and tag the circuit supplying power to the
cooling facility, which constitutes abatement of the citation issued for a violation of section
56.12016.
As noted above, the guarding citation has been conceded by Empire and is not before us.
As for the citation requiring de-energizing and locking out the circuit supplying power to the
cooling facility, there is a fundamental question regarding its application in these circumstances
owing to the Ninth Circuit Court of Appeals' decision in Phelps Dodge Corp. v. FMSHRC, 681
F.2d 1189 (9th Cir. 1982), which held that what is now 30 C.F.R. § 56.12016 is aimed only at
protecting against electrical shock, not against unexpected hazardous motion during repair or
maintenance work.
I fully concur with the Court's decision in Phelps Dodge. The purpose of the
lockout/tagout requirement of section 56.12016 is to insure that only the person working on an

29 FMSHRC I 010

electrical circuit can re-energize it. 1 The Secretary would have the Commission arrive at an
interpretation of section 56.12016 different from that reached by the Ninth Circuit because this
case arose in a different circuit. I decline, however, to accept the Secretary's invitation for the
Commission to engage in non-acquiescence with the Ninth Circuit's opinion; doing so would
balkanize mine safety and health enforcement when a fundamental purpose for federal primacy in
mine safety and health matters is uniformity across the several states.
As for the violation of section 56.14105, I agree with the majority that the standard
generally applies in this case, inasmuch as the actions taken to free the stuck pallet constitute
"repair and maintenance" for purposes of the standard. Slip op. at 8. I part company with my
colleagues, however, with respect to the degree to which Empire was not in compliance with the
standard.
First, the stop switch effectively removed power from the cooler for purposes of the
standard, since the standard says nothing about de-energizing and locking out the entire circuit.
While it is true that the stop switch does not de-energize the entire circuit, it does shut down the
cooler assembly. Tr. 177-78, 197. The switch was entirely under the control of the control room
operator who had dispatched Weston and Ring to the cooler. 29 FMSHRC at 320-21. The judge
found that the stop switch was functioning properly. Id. at 323. 2
Second, the conditions relating to the stuck pallet and the efforts of Mr. Weston and Mr.
Ring to free it bring the circumstances under the exception set forth in the standard, that is,
machinery or equipment motion or activation is permitted to the extent that "adjustments ...
cannot be performed without motion or activation, provided that persons are effectively protected
from hazardous motion." 30 C.F.R. § 56.14105. As the judge found, after all other measures
failed, the porta-power had to be brought in to release the dump arm. 29 FMSHRC at 321-23.
Moreover, there was no feasible means to block the dump arm against movement. Id. at 329

1

The decision in Phelps Dodge is now twenty-five years old. During that period the
Secretary has not seen fit to amend section 56.12016 to specify that it applies to the
circumstances presented here. On the other hand, the Secretary did revise section 56.14105 in
1988, six years after the Phelps Dodge decision, but did not elect to incorporate into that standard
the requirements to de-energize, lock out, and tag an electrical circuit prior to commencing repair
or maintenance. 53 Fed. Reg. 32,496, 32,508, 32,523 (Aug. 25, 1988).
2

Even if section 56.14105 could be read to require de-energizing and locking out the
circuit, the judge found that there was "no testimony establishing the dangers faced by miners if
the cooler drive motor unexpectedly started up while a miner was trying to free a stuck pallet.
Nor was there evidence of other electrical hazards compliance would prevent." 29 FMSHRC at
328 n.22.
29 FMSHRC 1011

n.23. Indeed, the whole point of Weston and Ring's efforts was to cause the dump arm to move
so as to free up the stuck pallet3 Id. at 320-21.
In any event, the judge concluded that Empire ultimately achieved compliance by
installing guarding around the cooler to prevent miners from gaining access to the pinch point.
Id. at 324. That, however, was precisely the means used to abate the section 56.14107(a)
guarding violation.
Given my view that the power was off for purposes of the standard, and that the actions
taken to free up the stuck pallet fell within the exception allowed for under the standard~ the only
element of the standard that Empire failed to meet was "effectivelyprotect[ing]" Weston "from
hazardous motion." That failure also provides the basis for Empire's violation of section
56.14107(a). As such, citing Empire under both section 56.14107(a) and section 56.14105 was
duplicative. Duplicate citations for the same violative condition are foreclosed under wellestablished case law holding that the Secretary cannot issue separate citations under two different
standards unless those standards "impose separate and distinct duties on the operator." Western
Fuels-Utah, Inc.; 19 FMSHRC 994, 1003 (June 1997); see also Cyprus Tonopah Mining Corp.,
15 FMSHRC 367, 378 (March 1993).
In sum, as I view this case, the single cause of the fatality was the lack of proper
guarding. I believe that the guarding citation captures the violative conditions adequatelyparticularly when it is tied to the ultimate means of abatement accepted by the. Secretary.
As to the Secretary's argument that she can allege violations of alternative standards in
the same citation (S. Br. at 7-14), I do not believe section 104(a) permits that type of enforcement'
action. I view section 104(a) of the Act as clear and unambiguous: one violation per citation.
The "particularity" criterion: expressed in the provision relates directly to the nature of the
violation which, in turn, includes "a reference to the provision of the Act, standard, rule,
regulation, or order alleged to have been violated." 30 U.S.C. § 814(a).
The Secretary's recourse to the Dictionary Act, endorsed by the majority (see slip op. at
6), is unavailing. That statute does not apply when the "context indicates otherwise." l U.S.C.
§ 1. Here, the context provided by the Mine Act clearly indicates that the use of the singular in
104(a) is intentional. For example, section 1 lO(a)(l) of the Mine Act provides:

3

The judge indicated that lack of feasibility of compliance is not a defense to a citation.
29 FMSHRC at 323. That may not necessarily be true. In Sewell Coal Co., 3 FMSHRC 1380
(June 1981), ajf'd, 686 F.2d 1066 (4th Cir. 1982), the Commission acknowledged that
impossibility of compliance might be a defense to a citation and cited to Interior Board ofMine
Operations Appeals decisions under the 1969 Coal Mine Health and Safety Act where citations
were vacated "because of the unavailability of required equipment in the marketplace." 3
FMSHRC at 1381 n.5.
29 FMSHRC 1012

The operator of a coal or other mine in which a violation occurs of
a mandatory safety and health standard or who violates any other
provision of this Act, shall be assessed a civil penalty by the
Secretary which penalty shall not be more than $[6]0,000 for each
such violation.
30 U.S.C. § 820(a)(l) (emphases added). 4 See also 30 C.F.R. § 100.3(a).
As a practical matter, allowing the Secretary to allege vioiations of alternative standards
in the same citation serves to muddy the distinctions between the two standards, both as to their
discrete requirements and the means by which they are to be abated. That is certainly the case
here, for it seems to me that what the Secretary, the judge, and my colleagues have done is to
treat section 56.14105 as a kind of hybrid of sections 56.14107(a) and 56.12016 and ascribe to it
requirements that it does not possess on its own.
The problem with that approach is that it does not adequately take into account the
exception provided in section 56.14105, i.e., that removing the power and blocking the
equipment against hazardous- motion is not required if "adjustments or testing cannot be
performed without motion or activation," a circumstance that clearly exists in this case.
Moreover, it results in Empire's having to comply with section 56.14105 by undertaking the
abatement measures required by section 56.12016, even though Empire has not been found to
have violated that standard. Lastly, it results in Empire's being cited twice for the same offense:
failing to guard the pinch point.
Finally, when the Secretary argues that the Commission can find a violation of section
56.14105 or section 56.12016, but not both, she is presenting the Commission with what
logicians call a false dichotomy. If someone tells me that black is black and white is white, I
have no trouble following him. Ifhe says, however, that if black is black, then white cannot be
white or if white is white, then black cannot be black, I have a great deal of trouble following
him.
Therefore, to avoid such confusion, the Secretary should have chosen which standard to
pursue or chosen to pursue both standards by way of separate citations. In either case I would not
have found a violation, but such a litigation strategy would not have stretched section 104(a) of
the Mine Act beyond fogical comprehension.

4

It is obvious from the precise language of section l lO(a) that Congress did not intend to
allow the Secretary to assess one civil penalty for two separate violations cited in the same
citation. Slip op. at 6 n.7.
29 FMSHRC 1013

Distributions:

R. Henry Moore, Esq.
Arthur M. Wolfson
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222 ·.
Cheryl C. Blair-Kijewski, Esq.
U.S. Department of Labor
Office of the Solicitor
1100 Wilson Boulevard, 22nd Floor
Arlington, VA 22209-3939
W. Christian Schumann, Esq.
Jerald S. Feingold, Esq.
U.S. Department of Labor
Office of the Solicitor
1100 Wilson Boulevard, Room 2220
Arlington, VA 22209-3939 ·
Administrative Law Judge David F. Barbour
Federal Mine Safety and Health Review Commission
601 NewJersey Avenue, N. W., Suite 9500
Washington, D. C. 20001

29 FMSHRC 1014

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, D.C. 20001-2021
Telephone No.: (202) 434-9958
Fax No.: (202) 434-9949

November 6, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent,

v.

CONTEST PROCEEDINGS
Docket No. LAKE 2007-37-R
Citation No. 7493853; 10/27/2006
Docket No. LAKE 2007-38-R
Citation No. 7493854; 10/27/2006
Docket No. LAKE 2007-39-R
Citation No. 7493855; 10/27/2006

SOLAR SOURCES, INC.,
Contestant,

Mine ID: 12-01732
Mine: Craney Mine

ORDER OF DISMISSAL

On January 5, 2007, Counsel for Solar Sources, Inc. ("Solar Sources") filed notices of
contest with the Commission in the above captioned cases for three violations that were issued
against Solar Sources on October 27, 2006, by Mine Safety and Health Administration
("MSHA") inspectors.
On January 16, 2007, the Commission received the Secretary's Motion to Dismiss on the
grounds that Solar Sources failed to file its notices of contest within the 30-day period prescribed
by Commission Rule 20(b), 29 C.F.R. § 2700.20(b). Sec'y Mot. 2. In its response to the
Secretary's motion, Solar Sources asserts that two successive documents issued by MSHA titled
"Mine Citation/Order Continuation" led them to believe that MSHA had extended the time to file
its Notices of Contest. Solar Sources Mot. 1-2. It further contends that, "[e]ven if Solar Sources'
Notice of Contest was untimely filed, the Commission should accept the filing because its .
untimeliness was a result of [its] mistake and/or excusable neglect." Solar Sources Mot. 2. The
Secretary maintains that the aforementioned documents were issued to Solar Sources, but she
disputes Solar Sources contention that the MSHA inspectors' subsequent actions to modify the
abatement time extended the time to file its Notices of Contest. Sec'y Mot. 3.

29 FMSHRC 1015

A long line ofcases dating back to the Interior Board of Mine Operation Appeals have
held the late filing of notices of contest of citations is riot permissible under the Mine Act nor
under its predecessor, the Federal Coal Mine Health and Safety Act of 1969. Consolidation Coal
Co., 1MSHC1029 (1972); Old Ben Coal Co.~ 1MSHC1330 (1975); Alexander Brothers,
1MSHC1760 (1979); Island Creek Coal Co. v. Mine Workers, 1FMSHRC989 (Aug. 1979);
Amax Chemical Corp., 4 FMSHRC 1161(June1982); Industrial Resources, Inc., 7 FMSHRC
416 (Mar. 1985); Allentown Cement Company, Inc., 8 FMSHRC 1513 (Oct. 1986); Rivco
Dredging Corp., 10 FMSHRC 889(July1988); Big Horn Calcium, 12 FMSHRC 463 (Mar.
1990); Prestige Coal Co., 13 FMSHRC 93 (Jan. 1991); .Costain Coal Inc~ 14 FMSHRC1388
(Aug. 1992); Diablo Coal Co., 15 FMSHRC 1605 (Aug. 1993); C and.SCoal Co., 16 FMSHRC
633 (Mar. 1994); Asarco, Inc., 16 FMSHRC 1328 (June 1994); See also, IC! Explosives USA,
Inc., 16FMSHRC1794 (Aug. 1994).
The late filing of a contest of a citation or order has been allowed where the Secretary's
own conduct is responsible for the operator's delay in filing a notice of contest. Blue Diamond
Coal Co., 11 FMSHRC 2629 (Dec. 1989); See also, Consolidation Coal Co., 19 FMSHRC 816
(April 1997); Freeman Coal Mining Corp., 1MSHC1001 {1970). However, I agree with the
Secretary that the presenfsituation does not warrant an exception to the general rule because the
late filing was not due to the actions of the Secretary. In addition, Solar Sources has the benefit
of Counsel, as shown by the certificate of service on the notice of contest dated January 5, 2007,
and Counsel should have been aware of the strict 30-day rule. Moreover, Solar Sources has been
before the Commission in other matters and should be familiar with Commission rules.
Accordingly, the Secretary's motion to dismiss is GRANTED. The operator should note,
however, that the failure to properly contest the citations does not preclude it from challenging in
a subsequent civil penalty proceeding the violations and findings alleged in the citations.

~~Lv-:J
Robert J. Lesnick
Chief Administrative Law Judge
Distribution:
G. Daniel Kelley, Esq., ICE MILLER, LLP., One American Square, Suite 3100, Indianapolis, JN.·
46282-0200
Christine M. KassakSrnith, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S.
Dearborn St., 8th Floor, Chicago, IL· ·60604
MarkR. Malecki, Esq., Office of the Solicitor, U.S. Department of Labor, HOO Wilson Blvd.,
22nd Floor West, Arlington, VA 22209-2247

29 FMSHRC 1016

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

November 13, 2007
MARTIN COUNTY COAL
CORPORATION,
Contestant ·

V.

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

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

v.

CONTEST PROCEEDINGS
. Docket No. KENT 2002-42-R
Citation No. 7144401: 10/17/01
Docket No. KENT 2002-43-R
Citation No. 7144402: 10/17/01

Preparation Plant

CIVIL PENALTY PROCEEDING
Docket No. KENT 2002-262
A.C. No. 15-05106-03571
Preparation Plant

MARTIN COUNTY COAL
CORPORATION,
Respondent
DECISION

Appearances: James B. Crawford, Esq., Melissa Bowman, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, on behalf of the Secretary of
Labor;
Marco M. Rajkovich, Jr., Esq., Melanie J. Kilpatrick, Esq., Rajkovich, Williams,
Kilpatrick & True, PLLC, Lexington, Kentucky, on behalf of Martin County Coal
Corporation.
Before:

Judge Zielinski

These cases are before me on Notices of Contest and a Petition for Assessment of Civil
Penalties filed by the Secretary of Labor ("Secretary"), pursuant to section 105 of the Federal
Mine Safety and Health Act of 1977, 30U.S.C. § 815. The violations at issue here· arose out of
the Secretary's investigation of the October 11, 2000, slurry spill and breakthrough at Martin
29FMSHRC1017

County Coal's ("MCC") Big Branch Slurry Impoundment, near Inez, Kentucky. These violations
and several others, including violations alleged against Geo/Environmental Associates, were the
subject of a January 14, 2004, Decision by an Administrative Law Judge. Martin County Coal
Corp., 26 FMSHRC 35 (Jan. 2004) (ALJ). By Decision dated May 30, 2006, the Review
Commission vacated portions of that Decision and remanded the cases. Martin County Coal
Corp., 28 FMSHRC 247 (May 30, 2006). With the exception of the two violations at issue here,
all other issues involved in the earlier proceedings have been resolved by the ALJ Decision, the
Commission Decision, or through settlement. Remaining at issue are Citation No.7144401 and
Order No. 7144402, alleging significant and substantial ("S&S") and unwarrantable failure
violations of 30 C.F.R. § 77.216(d) for MCC's failure to follow its approved Impoundment
Sealing Plan.
Supplemental hearings were held in Pikeville and Louisville, Kentucky on January 16-18
and February 23, 2007. 1 The parties filed briefs after receipt of the transcripts. For the reasons
set forth below, I find that the Secretary has not proven the alleged violations, and vacate the
citation and order.
Findings of Fact - Conclusions of Law
Background
For a full discussion of the history of the impoundment and related developments, see the
Review Commission Decision. Briefly, in May 1994, slurry and water from the impoundment
broke through into MCC's adjacent and largely inactive 1-C (Coalburg Seam) mine. Over
100 million gallons of material, mostly water, was discharged and flowed out of the mine at three
locations, including the South Mains Portal. MCC hired a geotechnical engineering consulting
firm, Ogden Environmental & Energy Services, and submitted plans designed to reduce the
potential for future breakthroughs and to enable MCC to use the impoundment for the forseeable
future. The Secretary's Mine Safety and Health Administration ("MSHA") approved MCC's
Impoundment Sealing Plan ("Plan") on October 20, 1994, after additional information was
provided clarifying certain aspects of the Plan.2
The Plan called for construction of a "seepage barrier," around the perimeter of the
impoundment above the outcrop of the Coalburg Seam, in areas where the 1-C mine workings

1

Transcripts of the various hearings are referred to as follows: "Tra." - hearings of June
2003; "Trb." - hearings of August 2003; "Trc." - hearing of January 16, 2007; "Trd." - hearing
of January 17, 2007; "Tre." - hearing of January 18, 2007; and "Trf." - hearing of February 23,
2007.
2

A "Short Term Plan," to allow re-commencement of operations, was submitted in
May of 1994. In August 1994, a plan intended to govern future operation of the impoundment
was submitted. The plans are referred to collectively as the "Impoundment Sealing Plan."
29FMSHRC 1018

posed the potential for another breakthrough. The barrier was intended to reduce seepage into
the 1-C mine and to provide bulk that would fill and plug any breakthrough that might occur.
It was constructed using spoil material generated from surface mining of the Stockton Seam,
MCC' s 1-S mine, which lay about 100 feet above the Coalburg Seam. That material consisted .
largely of highly permeable shot sandstone. The Plan contemplated that fine refuse would be
deposited on the barrier to decrease its permeability. As actually constructed, the barrier was
approximately 40 feet thick, measured horizontally, and extended 1.4 miles along the perimeter
of the impoundment. Construction of the seepage barrier was completed in late 1995 or early
1996. The Plan also called for monitoring of outflow at the South Mains Portal of the
1-C mine, and the reporting to MSHA of any unusual changes in flow quality or quantity that
would indicate possible impoundment leakage. In February 1996, MCC retained
Geo/Environmental Associates ("Geo") to perform weekly impoundment monitoring.
On October 11, 2000, another breakthrough into the 1-C mine occurred. More than
300 million gallons of slurry-laden water rushed out through the mine and into adjacent streams.
An extensive investigation was conducted by MSHA. The violations at issue here allege that
MCC failed to comply with the Plan in two respects.
Order No. 7144402
Order No. 7144402 was issued on October 17, 2001, in conjunction with the release of
MSHA's Report of fuvestigation of the October 11, 2000, impoundment failure. The Order was
issued pursuant to section 104(d)(l) of the Act, and alleges a S&S and unwarrantable failure
violation of 30 C.F.R. § 77.216(d), which requires that operators ofmin((s with slurry
impoundments implement the design, construction and maintenance of such facilities in
accordance with plans approved by the MSHA District Manager. As described in the "Condition
or Practice" section of the Order, the violation is based upon MCC's failure to "periodically
direct the fine refuse slurry discharge along the 'seepage barrier,"' as required in the Plan.
Ex. Jt-4B.
The Order was vacated in the original ALJ decision, upon a finding that the Secretary
had failed to establish a prima facie case. The Commission reversed. Two of the three
Commissioners that heard the case concluded that, "[b]ased on its plain language, the plan
provision requires the operator to place or cause to move fine refuse over the length of the
seepage barrier by regularly changing the course of the slurry discharge."3 28 FMSHRC at 256.
The Commission found that "MCC does not sufficiently comply with the impoundment plan by
merely pumping fine slurry into the impoundment without ensuring that the fines have
accomplished the stated purpose, which is to adequately cover the seepage barrier 'to reduce, to
3

Commission Chairman Duffy also voted to reverse, but found that the Plan's language
was ambiguous, and that under Commission precedent, the Secretary was obligated to establish
the meaning intended by the parties by presenting credible evidence as to the history and purpose
of the provision, or evidence of consistent enforcement. 28 FMSHRC at 273-75.
29 FMSHRC 1019

the extent practical, seepage from the impoundment that could contribute to the occurrence of
another breakthrough."' 28 FMSHRC at 257. It remanded the case for a determination of
"whether MCC provided effective coverage of the seepage barrier under the terms of the
Impoundment [Sealing] Plan." 28 FMSHRC at 257.
The Plan
As the Commission emphasized, the Plan must be read as a whole. 28 FMSHRC at 25657. There are several provisions of the Plan that bear on the question of whether MCC provided
effective coverage of the seepage barrier. Some were included in MCC's original August 1994
submission, and others were included in its October 5, 1994, letter forwarding revisions in
response to concerns that had been raised by MSHA. Pertinent provisions include:
Following completion of the "seepage barrier" fine refuse shall be directed along
the barrier by periodically redirecting the discharge of fine refuse slurry. As fine
refuse settles and consolidates along the surface of the "seepage barrier," seepage
should be further reduced due to the low permeability of consolidated fine refuse.
Also, to further reduce the seepage from the impoundment, the pool level in the
impoundment should be maintained as low as possible, thereby, reducing the
quantity of clear water in the impoundment and the hydraulic head. As the fine
refuse deposit progresses up the slope of the "seepage barrier," the quantity of
seepage in the area of the mine workings in the Coalburg seam should
progressively reduce. After the impoundment level has increased to a level above
the Stockton mine bench, we believe the potential for a "breakthrough" in the
future is reduced considerably.
Ex. G-2 at 7, MCC-Al at 012297.
The purpose of the "seepage barrier" is twofold. The primary purpose for the
barrier will be to reduce, to the extent practical, seepage from the impoundment
that could contribute to the occurrence of another "breakthrough." Secondarily,
the barrier will provide bulk that will collapse into the subsided area in the event
another "breakthrough" occurs and should form a ''plug," limiting the amount of
fine coal refuse and water entering the mine.
Ex. G-2 at 4, MCG·Al at 012294.
The function of the spoil material placed in.the seepage barrier is to provide bulk
and sealing in the event of a collapse or breakthrough. The primary seepage
control is provided by fine refuse deposited in the impoundment against the fill as
operations progress. This control reduces the potential for piping of material from
the fill into openings and seams. A distinction should be made between flow
through a seam and flow through an opening. Water traveling through the barrier

29 FMSHRC 1020

into seams that intersect with the mine rooms is an expected event. Water
traveling through the barrier and openings in the natural ground is only a problem
if the flow. carries fill material or fines with it into the mine. Over time. this
piping action could result in instability of the fill slope. It is intended that any
instability resulting from a collapse or breakthrough be "choked off• given the
expected gradation of the fill material.
Ex. G-2A.

The Parties• Contentions
The Secretary argues that, because the seepage barrier consisted of highly permeable
material. in order to "reduce seepage from the impoundment," a layer of fine refuse, which
provided· "the primary seepage control," had to be maintained at all times between any water in
the impoundment and the barrier.4 The only way that could have been accomplished was by
discharging slurry onto the barrier at various points {"redirecting") to establish a layer of fine
refuse above the pool level, so that as the pool rose water could not come into direct contact with
the barrier. The Secretary maintains that MCC did not provide effective coverage of the seepage
barrier because it did not discharge slurry onto the seepage barrier, which allowed water atthe
top of the pool to come into contact with the barrier, i.e .• where there was no primary seepage
control device in place. As a result, seepage was not reduced, and the October 2000 piping
related failure occurred.
MCC argues that over 99% of the seepage barrier was coated with settled and
consolidated fine refuse, thereby reducing seepage ''to the extent practical," and that once the
pool level "increased to a level above the Stocktonmine bench," the seepage barrier would have
been encapsulated with fine refuse, and "the potential for a 'breakthrough' in the future [would
have been] reduced considerably...5 It further contends that discharging slurry directly onto the
seepage barrier would not have been practical for a number of reasons: 1) it would have
contravened established impoundment management practices and Phase III of its impoundment
plan. which required that the slurry discharge line be located at the embankment; 2) there was not
enough fine refuse to both coat the seepage barrier above the pool level and the embankment; and
3) placement of fine refuse on the seepage barrier above the impoundment level would not have
formed an effective barrier to seepage because the fine refuse would have shrunk and cracked as
it dried out, and it would have been eroded by rain, wind and wave action.

4

Quoted material is from the Plan.

5

Quoted material is from the Plan.
29 FMSHRC 1021

Discussion
There is virtually no dispute that MCC redirected the flow of slurry into the
impoundment, and that the result was a fairly uniform deposit of settled fines throughout the
impoundment, including along the seepage barrier. The slurry discharge pipe was positioned at
different locations on the embankment. Trc. 41 (Fredland),6 Trd. 47 (Betoney),7 Trd. 363-63
(Bellamy); 8 ex. G-3. The pipe also had a pivot point about eight feet from the end, and was
occasionally rotated to change the direction of the slurry discharge. Trd. 435-36 (Muncie)9 •
As MSHA inspector Robert H. Bellamy testified, "[t]here are ways of directing slurry without
moving the pipe, and a lot of it will be done naturally." Trb. 640. As fines settle and create a
restriction to flow, the flow will change and slurry will be transported elsewhere. "So you can
manipulate the slurry placement from the embankment to a certain extent." Trb. 640. Fine
refuse could be directed along the seepage barrier "by the natural deposition of the slurry ...
basically what they were doing. And the thing they were doing was they were moving the pipe
from side to side of the embankment." Trd. 362-63.
MCC and Geo personnel testified that it was apparent during their inspections of the
impoundment, both during its operation and after the breakthrough, that fine refuse was
deposited along the seepage barrier. Trb. 477, Trd. 404-06 (Johnson), 10 Trd. 208--09, 225-30
(Ballard), 11 Tra. 1170-73, Trd. 256, 271 (Muncie). Pictures taken shortly after the breakthrough
depict a uniform coating of fine refuse along the seepage barrier. Trb. 47 (Ballard); ex. MCC-0.

6

John Fredland is a civil engineer employed at MSHA's Pittsburgh Safety and Health
Technology Center. From 1980 to 2000, he was in charge ofMSHA's Mine Waste and
· Geotechnical Engineering Division, which was responsible for reviewing impoundment plans.
7

Theodore P. Betoney, Jr. is a mining engineer employed at MSHA's District 3
impoundment group since 1989.
8

Robert H. Bellamy is a mining engineer employed by MSHA as an impoundment
·
instructor and inspector since 1987.
9

Larry Muncie was MCC's preparation plant superintendent. He has over thirty years of
experience in dealing with and managing impoundments and has been certified as an
impoundment inspector by MSHA.
10

Robert Johnson is MCC's chief engineer. He has been involved in mining
engineering in various capacities, generally supervisory, since 1982.
11

Scott Ballard is Geo's senior project manager on MCC impoundment work. He was
the chief author of the Plan. He is a registered civil engineer specializing in water resource
engineering, a certified impoundment instructor, and has been involved in the design of
impoundments since 1985.
29 FMSHRC 1022

By October 2000, consolidated fine refuse in the impoundment pool ex.tended 85-90 feet above
the Coalburg seam. Trc. 129 (Fredland). MCC's expert, Christopher Lewis; testified that as
slurry was distributed throughout the impoundment, the layer of settled fine refuse rose
progressively, created a plug in the bottom of the impoundment and covered over 99% of the
seepage barrier, and progressively reduced seepage into the 1-C mine. 12 Tre. 20-21, 42 (Lewis).
MSHA's witnesses agreed that fine refuse had been deposited along the length of the
seepage barrier, but not up to the top of the pool level, and that water at the top of the pool had
been in direct contact with the seepage barrier. Tra. 555 (Betoney); Tra. 963 (Owens).13 The
Secretary's expert, Richard G. Almes, agreed that the traditional method of pumping fines into
the impoundment would result in a layer of fines all over the impoundment, but that there would
be water against the seepage barrier. 14 Trb. 312-13. Approximately one month after the
breakthrough, Owens attempted to ascertain how much water had been in contact with the barrier
by measuring the vertical distance between what appeared to be a "high water mark" and the top
of the fine refuse cake. Using a ruler and a level, he determined that there had been 22 inches of
relatively clear water above the settled refuse. Trc. 258-59. He roughly calculated, using a threeto-one slope, that about six feet of the barrier had been in contact with water, which amounted to
.42 of an acre. Trc. 260-61:MCC disputes Owen's finding. Muncie testified that he was at the impoundment the day
before the breakthrough and there was "no chance" that there was two feet of water above the
fines cake. Trd. 268-69. MCC's engineering department conducted regular surveys of the
impoundment pool level. A comparison of the October 9, 2000, survey of the pool level with a
December 2002 survey of the level of the top of the fines cake showed that the level of the settled
fine refuse was one inch below the surface of the pool two days before the breakthrough. 15

12

Christopher J. Lewis is Principal Engineer at D' Appolonia Engineering Division of
Ground Technology, Inc. He has extensive experience in the design of coal slurry impoundments
that are in proximity to underground mine workings and, at the time of his most recent testimony,
was involved in updating and re-writing MSHA's design manual for coal refuse disposal
facilities. Ex. MCC-AAA.
13

Harold L. Owens testified as a supervisory civil engineer with twenty-five years of
experience as head ofMSHA's District 4 impoundment group.
14

Richard G. Almes testified, originally, as Chairman and Principal Engineer of Almes
& Associates, Inc., Consulting Engineers. He has extensive experience in the design of coal
slurry impoundments, and is a technical reviewer for the re-writing ofMSHA's design manual
for coalrefuse disposal facilities. Ex. G-13.
15

MSHA checked MCC's regularly conducted surveys during the investigation and
determined that they were accurate. Tra. 778. As Owens stated, MSHA had "no reason to doubt
the accuracy of MCC's survey data." Trc. 380.
29 FMSHRC 1023

Trb. 476, 481-83, 497(Johnson); ex. MCC-BB; MCC-0. Bellamy, who normallyinspected the
impoundment for MSHA, testified that the fines cake was close to the top of the water during his
inspections, and that there was slurry in different consistencies above the fines cake and against
the seepage barrier. Trd. 371.;.73~ He also testified that it would have been a problem if .42 of an
acre of the seepage barrier had been in contact with water, but that he never found such
conditions. Trd. 377-78. He was also "pretty well satisfied" with the water levels MCC
maintained in the impoundment, "as far as them pumping out what they could."16 Trd. 341.
It is doubtful that there was nearly two feet of clarified water in contact with the seepage
barrier, certainly not for any appreciable length of time. The difficulty of ascertaining a high
water mark, independent of Wave action, one month after the breakthrough brings into question
Owens' measurements. 17 Nevertheless, there would have been some amount of water in contact :
with the seepage barrier. Experts testified, and common sense dictates, that the upper surface of
the slurry mixture, as it rose along the seepage barrier at the back of the impoundment, would be
almost entirely water. The slurry being pumped into the impoundment consisted of
approximately 20% solids. The coarser particles settled out first, helping to form a delta against
the embankment. Tra. 964. Coarser particles would continue to progressively settle as the
natural flow of the slurry traveled the 2,500 or so feet to the rear of the impoundment. The slurry
reaching the back bank would have contained a relatively small percentage of solids, the finest
particles, which according to the experts, would stay in suspension for a long time. Tra. 110,
Trc. 38 (Fredland), Tra. 561 (Betoney), Trc. 113 (Lewis), Trb. 500, 509 (Johnson). Johnson
agreed that there would be some water against the seepage barrier, that would have some fines in
it. Trd. 418. Muncie indicated that there was a high water mark above the fines level. Trd. 272.

The Secretary's witnesses testified that in order to provide effective coverage of the
seepage barrier, a layer of fine refuse had to be maintained between the seepage barrier and any
water in the impoundment. Trc. 33-35, 42, 139; Tra. 46, 53 (Fredland); Tre. 199-201; Tra. 894
(Owens). The seepage barrier was composed of shot-rock, relatively course material, that is
highly permeable. As Betoney explained, it was not a barrier to seepage, but more of a seepage
drain. Trd. 38, Tra. 486. Water contacting the seepage barrier, saturated it, and transmitted the
hydrostatic pressure created by the impoundment to the natural soil cover over the .1-C mine. 18

16

As noted above, the Plan required that the pool level be maintained as low as possible.
This was accomplished by pumping water from the surface of the impoundment back to the
preparation plant.
17

Owens also relied on the fact that the decant pump's intake was almost two feet below
the water mark on its floatation pontoons. Trc. 360. However, the pump creates a depression in
the settled fines, such that the depth of water at the pump's location would typically be greater
than in surrounding areas. Trb. 501-02, 511-12 (Johnson).
18

MSHA used a computer program, "seep-w;" to perform a seepage analysis. It: showed
that, with two feet of water in direct contact with the top of the barrier, the hydrostatic pressure at
29 FMSHRC 1024

MSHA concluded that with water in contact with the barrier, seepage into the 1-C mine was not
significantly restricted, nor was the potential for piping.
Several witnesses testified that the only way to maintain a layer of fine refuse between
impoundment water and the seepage barrier would have been to discharge slurry onto the
seepage barrier at various points, such that a layer of fine refuse was created above the
impoundment pool level - so that as the pool level rose water would not have any direct contact
with the seepage barrier. Trc. 43, 142-44, Tra. 201-02, 210 (Fredland); Trd, 40 (Betoney);
Trd. 103, 150-53, Trb. 308, 322, 452~53 (Almes).
As the Secretary's witnesses described the process, slurry would have to be discharged
onto the seepage barrier at various points along its entire length. The discharge point would be
kept in one location until a delta of settled fines developed. 19 The slurry would flow "from the
top down" into the pool, where it would settle out and form a base, from which a delta would .
build back up the slope to the discharge point. Tra. 201-02, Trc. 139-46, 334-36 (Owens). The
fines delta would be built up to about ten feet (vertical distance) above the pool level, or
approximately 35 feet along the slope of the barrier from the. pool. 20 The. discharge point would
then be moved to an adjacent location, and another delta would-be deposited, abutting the first

the level of the 1-C mine would have been four times higher than if a three foot thick layer of
settled and consolidated fine refuse had been between the water and the barrier. Trc. 166-76
(Owens). There is no evidence of how the difference in computer-modeled pressures would have
varied if only a few inches of water were in contact with the barrier, which most likely was the
case. There is also no explanation of whether or how this analysis reflected the fact that the
seepage barrier did not extend down to the level of the Coalburg seam outcrop. When the
seepage barrier was constructed in the area of the breakthrough, there was slurry and settled fines
approximately 40 feet above the floor of the Coalburg seam. The seepage barrier material settled
into that fine refuse to some extent. But there would have been a thick coating of fine refuse
against the natural soil surface for as much as twenty or more feet, measured vertically, above the
Coalburg seam. Ex. G-1, at 16, fig. 29, fig. 31.
19

MSHA's Coal Impoundment Inspection Procedures Handbook warns that slurry must ·
be discharged into the pool, not on the embankment, because erosion could substantially weaken
the structure. Tra. 173-74 (Fredland); ex. MCC-U. Muncie also explained that slurry must be
discharged into the pool, not on the embankment, because of concerns about erosion. Trd. 304.
It is doubtful that erosion would have ''weakened" the seepage barrier. But the effects of erosion
were apparently not addressed in the Secretary's analysis.
20

In calculating the surface area of the seepage barrier that would have been in contact
with water, Owens figured that 22 inches of water would have covered a horizontal distance of
about six feet, a ratio of slightly over 3-to-l. Trc. 260. To coat the barrier, the intersection point
of the adjoining deltas would have had to have been ten vertical feet above the pool level, and the
discharge point would had to have been some distance above that. ·
29 FMSHRC 1025

one. The discharge point.would then be progressively moved around the 1.4-mile seepage
barrier, until the entire length of the barrier had a coating of settled and consolidated fine refuse
extending above the pool level. Trc. 255, 319-20, 330-31, Tra. 964, 1096 (Owens); Tra. 488,
Trd. 40 (Betoney); Trd. 103, 150-53, Trb. 308, 452-53 (Almes); Trc. 43, 142-44, Tra. 201-02,
210 (Fredland). This process would be repeated as the pool level rose, until the entire barrier had
been coated.
Estimates of the time.requited to apply one 10-foot high coating of refuse varied.
Betoney believed it would take "somewhere over a year; a year or two years max." Tra. 488.
Owens estimated one year. Trc. 255, Tra. 1096. The estimates were very rough. As Owens
explained, the only way to determine the spacing and number of discharge points would have
been to "do a couple of them ... to see how it spread and how far apart they'd have to be to get·
coverage." Trc. 330-31. His estimate was based on a rough calculation of how long it would
take to accumulate a sufficient volume of fines to coat the entire length of the barrier to a vertical
height often feet above the pool level, assuming the slurry was 30% solids.21 Trc. 319. There
are a number of unknowns about the calculation. Owens did not specify a thickness for the fmes
layer. He first described a six-foot average thickness. Trc. 319. However, he then indicated that
the fines layer would have to have a minimum thickness of one-to-two feet, which he conceded
was a "little arbitrary [because a]s far as I know there was never any definitive analysis made to
set the required dimension of the thickness of the fines."22 Trc. 322. Also unknown is what
assumption, if any, was made as to the percentage of available solids that would be deposited, as
opposed to those remaining suspended and flowing out into the impoundmentpool. Lewis
opined that it would be impossible to establish and maintain a coating of fine refuse above the
pool level, in part because there was a high percentage of very fine particles in MCC' s slurry, and
they would stay in suspension for lengthyperiods of time. Tre. 43-44.
MCC's arguments as to the impracticality of the Secretary's.position have considerable
persuasive value. There is no dispute that, in general, the most critical element of maintaining an
impoundment is to assure that the man-made portion, the dam or embankment, retains its
structural integrity. To that end, generally accepted engineering principles required that slurry
refuse be discharged at the embankment, so as to build and maintain a coating or delta of refuse.
Trc. 254 (Owens). A Department of Interior Engineering and Design Manual for Coal Refuse
Disposal Facilities describes discharging slurry at the upper end of an impoundment as being
"incorrect." Ex. MCC-T. ·MSHA's Coal Impoundment Inspection Procedures Handbook also
discourages depositing slurry at locations other than the embankment. Ex. MCC-U. MCC's plan

21

The 30% solids assumption is open to question. Betoney first testified that slurry
discharges were typically 10-15% solids (Tra. 559), and later estimated that they were 15-20%
solids (Trd. 28-29). Muncie also offered two estimates. Tra. 1140 (25~35% solids), Trd. 310
(10-20% solids).
22

Almes testified that a minimum of three feet of consolidated and settled fines would
have been necessary, based upon a previous design of a slurry trench cut-of£ Trd. 136-]7.
29 FMSHRC 1026

for Phase III of the impoundment, which was approved by MSHA in 1998, specifies that slurry
discharge should be at the embankment. Ex. MCC A-2; Trd. 343 (Bellamy), Tra. 155-56
(Fredland).
MSHA's witnesses testified that there was enough fine refuse being pumped into the .
impoundment to both coat the seepage barrier above the pool level and protect the embankment.
Trc. 255 (Owens), Trc. 71 (Fredland). However, that testimony is not convincing. As
previously noted, there are many uncertainties surrounding MSHA's estimate that it would take
about one year to coat the barrier to a vertical height of ten feet. Assuming that that estimate is
accurate, it is doubtful that slurry could also have been directed at the embankment. The pool
level rose about ten feet each year. Trb. 445 (Almes). Consequently, by the time a 10-foot high
band of fine refuse had beeh established over the length of the barrier, the pool level would have
risen to the top of the ten-foot fine refuse deposit at the first slurry discharge positions.23 The
process would then have to have been immediately repeated. If not, water would come into
contact with the seepage barrier as it rose above the band of fine refuse coating. Trd. 197-99
(Ballard).
MCC's witnesses also challenged the feasibility MSHA's proposed establishment of a
fines layer above the pool level. Ballard testified that even though the slurry discharge pipe was
kept on the embankment, there were times when the pool level was higher than the fines delta,
which was normal for most impoundments. Trd. 196-97. Owens confirmed thatMCC's.
impoundment inspection reports, at times; indicated that the pool level was above the delta.
Trc. 285-86. Ballard strongly questioned how a fine refuse deposit could be maintained above
the pool level around the 1.4 mile seepage barrier, when it couldn't be maintained at the
embankment, which was a fraction of the length of the barrier. Trd. 197. Moving the slurry
discharge around the impoundment would also have created other problems, principally
interfering with the ability to recycle water by pumping it back to the plant. Muncie testified that
moving the discharge point around the seepage barrier would create agitation and prevent
pumping of clean water back to the plant. Trd. 272. Owens opined that by moving the pump
aroundthe middle of the pool, pumping of clean water could be done. Trc. 267-68. Bellamy
testified that with slurry being discharged around the seepage barrier water could not be pumped
from the back of the impoundment, but if the pump. was moved to the middle of the
impoundment, water could be pumped, although it would have been harder to do. Trd. 345-48.
In addition, it is highly questionable that a coating of fine refuse above the pool level
would have had the desired result of decreasing the permeability of the barrier. MCC presented
evidence that if fine refuse, saturated with water, had been placed above the pool level, it would
23

Owens did not claim that his estimate was based upon depositing slurry on the
embankment as well as on the seepage barrier during the one-year period. It is unlikely that it
was, because a high priority was placed on coating the seepage barrier which, in the Secretary's
opinion, was not functional unless and until it was coated with fine refuse, Fredland testified that
there would be a "period of risk" until the entire seepage barrier could be coated. Trc. 122-24,
29 FMSHRC 1027

have dried out and cracked, rendering it ineffective as a barrier to seepage. A picture of the fine
refuse deposit in the impoundment, taken in September 2002 shows persistent cracking.
Ex. MCC-Z; Trd. 431 (Johnson), Tra. 950-51 (Owens), Tre. 27 (Lewis). As Lewis explained,
"as [the fines cake] dries, it tends to lose moisture and shrink, reduce in volume." Tre. 27. Geo's
expert, Donald J. Hagerty, professor of civil engineering at the University of Louisville, was
more descriptive. 24 "If you deposit this material [fines saturated with water] above the water .
level on the sides of the impoundment, it's going to dry up .... Inevitably it cracks. So as soon
as ... the water drains· down into the coarser materials around the impoundment, the water leaves
the slurry, the fines that are left behind don't occupy nearly as much volume, there's shrinkage
and cracking." Trf. 37. ''That 70 years of experience we've had with dams and impoundments
and piping problems, that pretty much says that if you try to stop·a seepage problem by making a
barrier, the barrier has to be virtually perfect for it to really work." Trf. 65. "If you have a
moisture content of 80 percent, when it dries out it shrinks and cracks, the same thing that
happens to the bottom of a farm pond. When it dries up, the mud cracks because of shrinkage.
Same mechanism." Trf. 71. "I think as long as we had these fines deposited in a cake or layer
that had cracks in it, the cracks make any notion of a barrier simply nonsense." Trf 70.
I find this evidence persuasive. The photograph confirms that the fines cake shrank and
cracked as it dried out. While the picture was taken two years after the breakthrough, it seems
likely that significant drying would have occurred within days or weeks of creation of the fines
layer, certainly well within one year. I also accept Hagerty's opinion that a barrier has to be
virtually perfect in order to restrict seepage, and that a dry, cracked fines layer would not be a
virtually perfect barrier. While the dried-out fmes cake may have been restored somewhat as it
became re-saturated, as Lewis noted, there is no direct evidence rebutting Hagerty' s opinion that
it would not have performed effectively as a barrier to seepage. 25
I find that MCC effectively covered the seepage barrier with fine refuse under the terms
of the Plan. I accept the testimony of the Secretary's witnesses to the effect that, in the absence
of a coating of fine refuse above the pool level, there would not have been a major reduction in
overall seepage~ However, that condition would have ended when the pool level rose above the
Stockton bench, at which time the seepage barrier would have beencompletely coated and, as the
Plan stated, there would have been a "considerable reduction" in seepage and the potential for a
breakthrough. As the pool level rose, and the layer of fine refuse covered a greater area and
became thicker, reducing seepage through the bottom of the impoundment. The uniform deposit
of fine refuse in the impoundment created a "plug" that effectively restricted seepage in all areas

24

Donald J. Hagerty has a Phd. in geotechnical engineering and has taught engineering
for more than thirty-four years. He was accepted as an expert in piping. Trb. 940; ex. Geo-15.
25

Owens mentioned that MCC's was the second impoundment that required the seepage
barrier to be coated with slurry. Trc. 333. The other facility was not identified and there is no
further mention of it, no explanation of how the coating was applied, or any other information
that might have been responsive to questions raised by MCC.
29 FMSHRC 1028

of the pool, including 99% of the seepage barrier. Jn testifying on Citation No. 7144401~ Owens
and Fredland agreed that the thickening layer of settled fines did reduce seepage. Seen. 35,
infra. It was only the few inches (measured vertically) of the seepage barrier nearest the top of
the pool that were not coated with refuse. While this small area permitted seepage, it would have
been highly impractical to have further reduced it in the "only way" it could have been done,
i.e., to have established a layer of fine refuse above the pool level, as the Secretary's witnesses
described.
The Secretary argues that impracticality of complying with a mandatory standard or plan
provision is not a defense to non-compliance. Sec'y Br. at 16-17. While this may be an accurate
statement of law, MCC does not advance impracticality as a justification for non-compliance.
Here, the phrase "to the extent practical" is actually part ofMCC's Plan. Consequently,
consideration of practicalities must be included in determining whether MCC provided effective
coverage of the seepage barrier.
The Secretary also argues that expectations about reaching the Stockton bench should not
have diminished.MCC's efforts to comply with the primary purpose of the Plan in the
intervening years, i.e., to reduce seepage into the 1-C mine. Sec'y Br. at 8. She also argues that,
since a significant reduction in breakthrough potential was not anticipated until then, MCC
should have been especially careful to assure maintenance of fines coverage on the barrier. 26
The Secretary's argument seems to bifurcate the various provisions·ofthe Plan, and does
not address how the subject sentence27 affects the reading of the Plan. What must be determined
is the significance of this language in deciding whether MCC effectively covered the seepage
barrier under the terms of the Plan as a whole. As Ballard explained, MCC's approach to
distribution of fine refuse over the seepage barrier appears to be consistent with virtually all of .
the provisions of the Plan, including the subject sentence. On the other hand, the Secretary's
position appears inconsistent with the sentence. If effective coverage meant, as she contends,
depositing a layer of fine refuse above the pool level such that water in the impoundment was
never in contact with the seepage barrier, then the barrier would always have been completely

26

The Secretary closed the argument by stating: "Therefore, once the impoundment pool
rises to the Stockton seam, it would be above the areas most vulnerable to breakthrough potential
for, by then, fine refuse would cover the complete barrier if effectively distributed." Sec'y. Br.
at 8. The closing sentence is difficult to understand, and appears to be largely consistent with
Ballard's point. The only areas susceptible to breakthrough were the entries closest to the
outcrop of the 1-C mine. As explained in MSHA's Report of Investigation, that outcrop was at
an elevation of 960 feet. The pool had risen above that level well before the 1994 breakthrough,
when it was at an elevation of 992 feet, and it remained above the Coalburg seam level after the
breakthrough. Ex. G-1.
27

"After the impoundment level has increased to a level above the Stockton mine bench,
we believe the potential for a 'breakthrough' in the future is reduced considerably." Ex. G-2 at 7.
29 FMSHRC 1029

encapsulated as to any water in the impoundment, and no additional protection would have been
realized when the pool level rose above the Stockton bench. ·
·It also strikes me that MCC's position is more consistent with other provisions of the
Plan, i.e., ''The primary seepage control is provided by fine refuse deposited in the impoundment
against the fill as operations progress . ... As fine refuse settles and consolidates along the
surface of the seepage barrier .... As the fine refuse deposit progresses up the slope of the
seepage barrier .... " While the Secretary's position can also be viewed as consistent with these
provisions, I find such constructions considerably more strained than when compared to what
MCC was doing to comply with the Plan.
I found Ballard's testimony, as principle author of the Plan, particularly informative.
He explained MCC's compliance with the Plan as follows:
[A]n impoundment fills up with slurry as it comes up, okay. So what I'm
discussing here is, okay, you've got the barrier. And the fact that the bulk
material was put there reduces seepage to some degree. It's called a seepage
barrier. Then the fine refuse will progressively come up as you pump fines in
there. That's what the word progressively means as the operations continue. As
those progressively come up, you're gradually reducing the seepage because fine
refuse is a smaller part[icle] and will have a lower permeability. And what I
meant here by the last statement after impoundment level increases to a level
above the Stockton [seam], once that fine refuse [in the] impoundment got above
the Stockton level, then the entire harrier is encapsulated by the fine refuse. And
at that point, that's what the statement means, that once it's reached that point, we
believe the potential [for a] breakthrough[in the] future is reduced considerably,
but that's after it's totally encapsulated.
Trd. 194-96.
I find that, reading the Plan as a whole, MCC effectively covered the seepage barrier with
fine refuse. 28
28

While I am constrained by the Commission's remand as to Order No. 7144402, the
determination of whether MCC provided effective coverage of the seepage barrier under the
terms of the Plan involves interpreting various related, and not entirely consistent, provisions of
what appears to me and to some witnesses to be an ambiguous Plan. Were I deciding these
issues in the first instance, I would have found the Plan to be ambiguous, and followed the.
established Commission precedent cited by the Chairman. The difference of opinion over the
proper approach to resolving plan ambiguities seems to have been resolved. See Jim Walter
Resources Inc., 29 FMSHRC 579, n. 8 at 589 (Aug. 1996). I would have concluded that the
Secretary failed to establish her intended meaning by presenting credible evidence as to the
history and purpose of the provisions, or evidence of consistent enforcement. It is apparent that
29 FMSHRC·l030

Citation No. 7144401
Citation No. 7144401 also was issued on October 17, 2001, pursuant to section 104(d)(l)
of the Act, and alleges an S&S and unwarrantable failure violation of30 C.F.R. § 77.216(d). As
described in the "Condition or Practice" section of the Citation, the v.iolationis based upon
MCC's failure to "immediately report to the MSHA District Manager any unusual change in flow
quantity or quality from the South Mains Portal that would indicate possible impoundment
leakage," as required by the Plan. Ex. Jt-4A.· The Order was upheld in the original ALJ decision,
but the Commission vacated that portion of the decision because the conclusion that the Plan had
been violated was not adequately supported. 28 FMSHRC at 259-63.
The South Mains entry was the primary exit point for water and slurry released during the
1994 breakthrough. For that reason, monitoring ofthe flow from the South Mains entry was
included in the May 1994, or Short Term Plan, which provided:
Flow from the South Mains entry will be monitored daily, until remedial work at
the seepage point is completed. Monitoring will be done during regular
impoundment inspections after that. Any unusual change in flow quantity or
quality that would indicate possible impoundment leakage will be reported
immediately to MSHA and the appropriate mine management. All necessary
remedial measures will be implemented.
MCC Ex. Al, App. 1. MCC challenged whether the monitoring requirement continued in effect.
However, its argument was rejected in the original ALJ decision, and the Commission agreed,
holding that the "requirement to monitor the South Mains and to report any unusual changes in
flow quality or quantity that would indicate possible impoundment leakage to MSHA was part of
the permanent Impoundment Sealing Plan." 28 FMSHRC at 261.
The flow from the South Mains Portal of the mine was a few inches deep and ran through
a rocky shallow ditch into a sediment control pond located near the portal. Trd.305 (Muncie).
That pond, which was designated Pond 200, and several others at the mine site, were covered by
a permit issued by the Kentucky Pollutant Discharge Elimination System ("KPDES"). A
corrugated steel pipe, 18 inches in diameter, set ata slightly descending angle, drained the pond
once its surface rose above a certain level. Ex. MCC-W. MCC retained Geo to conduct weekly

no one who was involved in writing the Plan, implementing it, or monitoring its implementation,
including experienced engineers and plant operators at MCC and Ogden/Geo, and numerous
MSHA inspectors, interpreted the Plan as the Secretary now urges. Her interpretation represents
a radical departure from well-established impoundment management practices which, even in
hindsight, are only hinted at in the Plan.
29 FMSHRC 1031

"regular impoundment inspections. " 29 The South Mains outflow was monitored, indirectly, by
observation and measurement of the outflow from Pond 200. 30 The measurement taken was the
depth of flow at the intake end of the drainage pipe, measured in inches from the bottom of the
pipe opening. The clarity of the outflow, the depth measurement, and several other readings and
obsel"Vations made during the inspections, were recorded on ''Refuse Impoundment Site Visit"
forms. 31 Ex. G-6, MCC~G. Once completed, the form was delivered to the preparation plant,
where the plant superintendent or a foreman in charge would sign it. Copies were given to
MCC's engineering office, and to the Geo project manager. Pond 200 was also subject to
KPDES monitoring and reporting requirements. MCC retained Blackburn Contracting to
perform that function. Blackburn inspected the pond twice a month, measured or estimated the·
quantity of outflow at the discharge end of the pipe and collected samples for further analysis,
including the amount of suspended solids. Blackburn's inspection results were reported on a
monthly basis, and were forwarded to KPDES quarterly. Trd. 383 (Johnson); ex. MCC-L.
The Parties' Positions
The Secretary contends that the impoundment site visit reports show that there was a
sustained doubling of the-outflow from Pond 200 in September 1999,which occurred during a
period of drought, that there was no other explanation for the increase other than possible
impoundment leakage, and that it was an unusual change in flow quantity that indicated possible
impoundment leakage that was required to be reported under the Plan. MCC contends that the

29

As recognized in the Plan,·MCC was obligated to conduct regular impoundment
inspections. Under the Secretary's regulations, operators must examine impoundments at least
every seven days for "appearances of structural weakness and other hazardous conditions," and
must "immediately" notify MSHA's District Manager whenever a "potentially hazardous
condition develops." 30 C.F.R. § 77.216-3(a) and (b).
30

Seepage from the impoundment was one of three components of the Pond 200
outflow. The others were surface drainage from ten acres surrounding the pond, and ground
water that had infiltrated the 1-C mine, which joined with the impoundment seepage and flowed
out of the South Mains entry. A substantial portion of the 1-C mine was not under the
impoundment and there was a lot of natural drainage into the mine, all of which flowed out the
South Mains entry. Tra. 605-07 (Betoney); Trc. 99 (Fredland). It was impossible to determine
what portion of the South Mains entry outflow, or what portion of the Pond 200 outflow, was
seepage from the impoundment. Tra. 1001, Trb. 1004-05 (Owens); Trc. 180 (Fredland).
31

Impoundment monitoring included measurements of the pool surface elevation and
the elevation of deposited fines; estimates of flow volume at various drains, seeps and other
openings; readings of piezometers located in the dam; and visual observations of the slopes, pool,
and other aspects of the impoundment to check for sloughing, bulging; erosion, and surface
disturbances, such as swirls, that might indicate leakage or some other problem. Trb. 93
(Ballard); ex. MCC-G.
29 FMSHRC 1032

Secretary's arguments are based upon misleading averages of flow data,.thatthe Pond 200
outflow quantity was well within the range of flows that would have been expected for the
impoundment as the pool level rose, and that the fluctuation in flow was notindicative of
possible impoundment leakage because it was not substantially dissimilarto prior fluctuations
and there were no other indications of possible leakage.
The Secretary's "Averages" Argument
The Secretary's argument on this alleged violation is based primarily on a chart included
in the Report of Investigation, Figure 38 ("Fig. 38"). Ex. G-1, fig. 38. The chart covers the
period from mid-1994 through October 2000, and shows the Pond 200 outflow depths, the
impoundment pool level, and monthly averages of rainfall in the general area. 32 Also displayed
are two average flow depths, represented by horizontal lines. One represents the average flow for
the period from August 1994 to September 1999, which was 5.5 inches. The other represents the
average flow for the period from September 1999 to October 2000, which was 8.6 inches.
Virtually all of the Secretary's arguments on outflow quantity changes are based on comparisons
of the average flows displayed on Fig. 38, and the claim that the average flow increased by 56%,
which represents at least a doubling of flow volume. Sec'y Br. at 30, 33; Reply Br. at 17, 18, 20.
As stated in the Report of Investigation, "[d]uring this period [September 1999 to October 11,
2000] ... the average flow rate from the South Main Portal more than doubled." Ex. G-1 at 32.
MCC argues that such comparisons are misleading, because natural seepage from the
impoundment increased significantly as the pool level rose. Consequently, any comparison of
late 1999-2000 flows with the average of flows for the five years preceding September 1999
would be expected to show a significant increase, even if there was no problem at all with
impoundment leakage.
The issue was explained by Barry K. Thacker, Geo's president and principal engineer,
who had over thirty years of experience in the design of coal slurry impoundments and is a
nationally recognized expert in the field. Trb. 685-91. Thacker described a principle known as
"Darcy's law," which is referenced in MSHA impoundment design materials, and dictates that
seepage from an impoundment will increase naturally as the impoundment pool level rises. The
theoretical relationship is discussed in a report he prepared on the breakthrough. Ex. Geo-13
at 6-9. He also prepared a chart, using the Pond 200 flow depicted on Fig. 38, and extended the

32

Fig. 38 shows monthly averages of rainfall recorded at the National Oceanic &
Atmospheric Association's National Weather Service station, located at Jackson, Kentucky, for
the period from mid-1994 through the October 2000 breakthrough. Owens plotted monthly
averages to. show a general rainfall pattern in the area, because he was unable to correlate the
outflow with available rainfall data. Tra. 1044-47, Trb. 1008 (Owens).
29 FMSHRC I 033

time linebackto 1991~ when the pool level was just below the Coalburg Seam.33 Ex. Geo-14.
At that point, the seepage from the impoundment into the 1-C mine had to be zero, which he
called a critical data point, because it was the only time that the amount of impoundment seepage
into the 1-C mine was kriown for certain. Trb. 699-700. He then observed that the low points of
the South Mains flow diagram coincided with a straight line that rose from zero flow in 1991 to
6-inches of flow in October 2000, which, he opined, was the relationship that Darcy's law
predicted. Trb. 701-02. He also testified that the 6-inch increase in depth of flow, as the
impoundment pool elevation ):"OSe nearly 100 feet over nine years, was the type of increase that he
had seeri at other similar facilities with comparable increases in impoundment pool elevations.
Trb. 696-97, 702. He attributed the component of flow represented by the straight line to
expected increases in impoundment seepage, and opined that the fluctuations above that line do
not indicate unusual changes in flow.
Thacker's analysis convincingly undercuts the Secretary's comparisons of average
outflow depths. 34 The Secretary's witnesses generally agreed with the proposition that seepage
into the 1-C mine would have increased as the impoundment level rose. Tra. 608 (Betoney);
Trc. 184, 235-38, Tra. 123, 228-29 (Fredland); Trc. 296-97, Tra. 971, 1006 (Owens). 35 The
proposition also appears fo be reasonable. As the pool level rose, the surface area of the
impoundment increased, more ground surface was exposed to water and saturated fine refuse,
and increasing hydrostatic pressure forced more water through the various layers of shot rock,
soil, sandstone and coal, all of which had some degree of permeability. Water flow would also
have increased through any faults or defects in those layers, e.g., hillseams or joints in sandstone
or cleats in coal deposits. Trc. 100 (Fredland).
It seems obvious, then, that comparisons of outflows in the late 1999 - 2000 time frame
with an average of the previous five years' measurements would yield skewed results, i.e.,

33

Thacker's charts were originally displayed with an overhead projector during his
testimony. Geo submitted paper copies as an exhibit. Ex. Geo-14.
34

Thacker's analysis does have at least one miner flaw, i.e., the assessment of zero flow
in 1991. The outflow through the drainage pipe in Pond 200 had two other components beside
impoundment seepage. While it is likely that surface runoff into the pond would have produced
negligible flow, groundwater infiltration into the 1-C mine, which drained out the South Mains
entry into Pond 200, would not have been at a zero level at any relevant time.
35

Owens and Fredland questioned whether the effect would be limited, i.e., seepage
would be reduced, due to the increasing thickriess of the layer of settled fine refuse. .Tra. 1006
(Owens), Trc. 237-38 (Fredland). It should be noted, however, that in the discussion of Order
No. 7144402, "I accept[ ed] the testimony of the Secretary's witnesses [including Owens and
Fredland], to the effect that in the absence of a coating of fine refuse above the pool level there
would not have been a major reduction in seepage." supra, at 12.
29 FMSHRC 1034

erroneously excessive increases. 36 Tre. 51 (Lewis). I have little difficulty in rejecting arguments
that are based on comparisons to the 1994-99 average flow.
·
The Importance of Outflow Quality
The Plan called for monitoring of the South Mains entry outflow and the reporting of any
unusual changes in quality or quantity that would indicate possible impoundment leakage. MCC
viewed outflow water quality as a more important indicator ofleakage because it was a bright
line test, i.e., any discoloration or "black water" would be an unmistakable sign of impoundment
leakage. It viewed changes in quantity as less reliable indicators of leakage because there was
considerable uncertainty as to the influence of the impoundment on the quantity of flow.
Tre. 133, 137 (Lewis); Trd. 180-83, 212, Trb. 69,77, 193 (Ballard); Trf. 51-52, 62, 80 (Hagerty).
The Secretary's expert agreed that discoloration would mean that fines were being picked up
somewhere and that quantity changes called for a more subjective evaluation. Trb. 330, 394
(Almes). ·
Outflow quantity took precedence for MSHA's investigators. While the Secretary's
"piping" theory of failure is predicated upon particles being eroded by water leaking into the
1-C mine, MSHA' s witnesses testified that, because water from the impoundment would have
had to flow some 4,000 feet through the mine before reaching the South Mains portal, and
elevation changes in the mine workings created pools, solids eroded by the piping/leaking
process would have settled out before reaching Pond 200. Tra. 603 (Betoney); Trc. 78-79, 109,
114, Tra. 130 (Fredland); Trc. 301-04, Tra. 1101 (Owens).
However, as MCC's expert pointed out, the mere fact that elevation variations were
reflected on mine maps did not mean that there was significant pooling of drainage within the
mine because it is likely that those depressions would have been filled with material during the
1994 breakthrough. Tre. 177 (Lewis). Betoney agreed that there was a "lot of material in the
mine" from the 94 breakthrough. Tra. 602-03. As Ballard stated, "I don't know the storage
capacity of the mine and I don't think anyone can quantify it." Trd. 212. Lewis believed· that if
piping had been occurring, suspended solids, or slurry, would definitely have been visible in the
South Mains flow. Tre. 133, Trb. 818-19. Ballard believed that suspended solids from any
significant piping would not have settled out, and would have been present in the Pond 200
outflow. Trd. 212. Hagerty also believed that ifleakage had been occurring "something should
have been seen at South Mains." Trf. 54. Johnston believed that if piping had been occurring,
that significant quantities of suspended solids would have been detected in the highly accurate
testing done on the KPDES samples. Trb. 471. Bellamy, MSHA's impoundment inspector, also
believed that if there had been leakage from the impoundment, he would have seen fines or
36

The Secretary acknowledged in her Brief that a gradual increase in flow was expected
as the level ofthe impoundment rose. Sec'y Br. at 30. However, it is not apparent that she took
such increases into account in assessing the flow diagram, and continues to urge comparisons to
the 1994-99 average flow.
29 FMSHRC 1035

suspended solids in the Pond 200 outflow. Trb. 609.
I find that, while some settlement would have occurred as water from the impoundment
flowed through the 1-C mine, it is highly unlikely that all, or virtually all, of the suspended solids
resulting from impoundment leakage or piping would have settled out before the flow reached
and exited Pond 200. Consequently, the quality of the Pond 200 outflow was an important factor
in assessing whether any change in outflow quantity indicated possible impoundment leakage. ··
Rainfall - Drought
Pond 200 outflow was definitely influenced by rainfall. Tra. 796, 811 (Owens); Tra. 123
(Fredland);·Tra. 603-05 (Betoney). Rainfall at the site added water to theimpoundment pool,
potentially increasing seepage, and could produce surface run-off into Pond 200 from its 10-acre
drainage area. Rainfall at the site and, possibly, in a wider area, percolated into the ground and
increased ground water infiltration into the 1-C mine. Owens attempted to correlate Pond 200
outflow with rainfall. His efforts were frustrated because there was no rain gauge at the
impoundment site, and the flow depth measurements had been taken only every seven days. He
plotted rainfall data from-five sites in the general area. Ex. G-6B. However, despite preparation
of numerous spreadsheets, he was unable to correlate Pond 200 outflow with rainfall. Trc. 37376.
Referencing Owens' testimony, the Secretary argues that the period from "July to
September" was the driest such period on record. Trc. 278; Sec'y Br. at 33; Reply. Br. atl8.
However, Owens was relying upon an American Meteorological Society paper discussing statewide conditions. Trc. 278, Tra. 812; ex. G-6C While he maintained that the situation in Martin
County was described in the paper as severe drought, he. acknowledged that weather patterns can
be very localized and that there was substantial rainfall in August 1999, including the highest
single day total in six years that caused flash flooding. Trc. 339, Tra~ 1047-48.
The Appropriate Test
There were no parameters established in the Plan to determine whether a particular
change in flow quantity would be "unusual" or ''would indicate possible impoundment leakage;"
Consequently, the determination was left to a subjective assessment of available data" Tre. 198202 (Fredland). While the Commission agreed with the previous ALJ that information on South
Mains entry outflow had to be viewed ''with a heightened degree of scrutiny given the prior
impoundment failure and the fact that 'as the pool level rose the risk of failure rose,"' it was
critical of the fact that neither the test for determining whether the Plan was violated, nor the
test's application were "clearly explained." 28 FMSHRC at 261 (quoting AU decision).

29 FMSHRC 1036

Neither party has articulated a definitive "test" for determining whether the plan was
violated. The Secretary cites to a dictionary definition of the word "unusual,"37 and argue~ that
the "doubling" of flow at the only monitoring point designated in the Plan was, "standing on its
own, an unusual change in flow signaling a possible impoundment leak."38 Sec'y Reply Br. at
20. MCC argues that the Secretary's view is overlyrestrictive because it focuses solely on
changes in quantity, whereas the Plan requires reporting of unusual changes in quantity that
indicate possible impoundment leakage. MCC contends that any changes in flow quantity had to
be considered in light of the totality of conditions at the impoundment, including the outflow
history, weather conditions, and other impoundment monitoring information, especially outflow
quality.
In construing broadly worded mandatory safety standards, the Commission has employed
a "reasonably prudent person" test, i,e., whether a reasonably prudent person, familiar with the
mining industry and the protective purpose of the standard, would have recognized the specific
prohibition or requirement of the standard. See BHP Minerals International, Inc., 18 FMSHRC
1342, 1345 (Aug; 1996); Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). While the
Plan is applicable only at MCC's impoundment, the specific provision at issue was intended to
apply to a potentially wide variety of conditions. Even though it is a Plan provision, as opposed
to a mandatory standard, it appears appropriate to apply a formulation of the reasonably prudent
person test. The Commission ''agree[ d]. in large part with the basic approach" taken by the
previous ALJ, which included a reference to a "reasonably prudent mining engineer.''
28 FMSHRC at 261.
Several witnesses expressed opinions on factors that should have been considered in
evaluating whether changes in flow quantity indicated possible impoundment leakage. The
Secretary's expert, Almes, believed that flow quantity should have been assessed in light of the
entire flow history over the years, that rainfall had a lot of relevance, and that other impoundment
conditions should have been considered, including flows at seepage outlets, observations of the
pool for swirls, and a visual examination of slope stability. Trb. 336-37, 359-60. Ballard agreed,
stating that flow should have been evaluated in light of flow over the years, and that he certainly
wouldn't have relied only on South Mains flow data. Trb. 153, Trd. 190. Lewis, too,
emphasized that the person making the assessment should be familiar with impoundments in

37

Unusual is commonly defined as "being out of the ordinary" or "deviating from
normal." Webster's Third New International Dictionary at 2514 (1993). Sec'y Br. at 30.
38

.The Secretary initially argued that, since the outflow from the South Mains entry was
the only monitoring point specified in the Plan, "it is irrelevant whether [MCC] chose to conduct
additional monitoring." Sec'y Br. at 28-29. While she later acknowledged that "itwas important
for MCC to look at other indications of possible leakage," she continued to focus solely on the
South Mains outflow, arguing that '~the plan called only for monitoring and immediate reporting
of unusual changes in the flow from the South Mains and this pipe was the place to measure
that." Sec'y Reply Br. at 21.

29 FMSHRC 1037

general, MCC's impoundment in particular, and all of the pertinent conditions. Tre. 44-47, 168.
Fredland testified that a person evaluating the flow information would have to be familiar with
the site. Tra. 248-49.
I find that the appropriate test is whether a reasonably prudent mine operator, or mining
engineer, familiar with impoundments in general andall of the conditions atMCC's
impoundment, both current and historical, should have recognized that a particular change in
outflow quantity was outside the range of flows that would have been reasonably forseeable, such
that it indicated possible impoundment leakage. This evaluation had to be made with an
awareness heightened by knowledge of the 1994 breakthrough, and the fact that the pool level
was approximately 100 feet higher than it was at that time.
Was There an Unusual Change in the Quantity of South Mains Outflow?
Pond 200 outflow measurements were recorded in Geo's impoundment inspection
reports. Reports for the period from January 1999 through October -5; 2000, were entered into
evidence. Ex. G-6, MCC-G. Evidence of flow measurements prior to 1999 are reflected only on
Fig. 38, prepared byMSHA, and charts prepared by Thacker. 39 Ex. Geo-14. Thacker prepared
two charts that I found helpful in analyzing Pond 200 outflow. One, in which he used the Fig. 38
data, and extended the time line back to 1991, has already been discussed. Because he was
critical ofMSHA's use of monthly rainfall averages in Fig. 38, he also prepared a chart that
displayed weekly Pond 200 outflow measurements, as compared to total rainfall recorded during
the seven-day period preceding the measurement. 40 The flow measurements are depicted as
small black squares, and the rainfall totals are depicted as small triangles. Trb. 704-05;
ex. Geo-14. He used rainfall data recorded at a weather station located atPaintsville, Kentucky,
which was about 15 miles from the impoundment. Ex. Geo 11.

39

The Secretary maintained that MCC should have plotted the flow depth measurements
as part of its monitoring responsibilities. Trc. 288-89 (Owens), Trc. 240 (Fredland), Tra. 505,
626, 690 (Betoney), Trd. 128-29 (Almes). MCC's witnesses disagreed that plotting was
necessary. Trb. 96, 153, 158 (Ballard), Trf. 82 (Hagerty), Tre. 53-54 (Lewis). While charts can
be helpful is assessing the history of flow measurements, the Secretary actually relies on only a
few weeks of data in her argument. MCC made no attempt to disclaim responsibility for
knowledge of flow history and, in fact, relies on it as evidence that the 1999 flows were not
unusual. Bellamy stated that he might have had a concern ifhe had seen a display like Fig. 38,
which included the misleading average flows. Trd. 354-55. However, he admitted that he had
seen all of the flow data displayed in the chart, and had found nothing unusual. Trd. 368-69. ·
40

Thacker believed that monthly averages of rainfall had no relationship to when the ·
flow measurements were taken, and that the Jackson site used by MSHA was too far from the
impoundment. Trb. 704.
29 FMSHRC 1038

The impoundment inspection reports for September 1999 show a rise in depth of flow
from 6.0 inches on September 9 to 8.5 inches on September 30. ·Ex. G-6. The flow stayed at the
8.5 to 9.0 inch level through February of2000, dropped to the 7.0 to 7.5 inch range in AprilJune 2000, and then returned to the 8.0 to 9.0 inch range from July through September of2000.
Ex. G-6, MCC-G. Historically, while flows had been in the 5.5 to 6.5 inch range for most of
1999, the charts show that there had been consistently higher readings, particularly in 1998. Fig.
3 8 and Thacker' s chart show a generally rising pattern of flow measurements. over the 1994-1999
time frame that appear to.have averaged about 6.0 to 6.5 inches in the mid-1998 to mid-1999
time frame, with a number of readings of7.0 inches in mid-1998.
More significantly, the charts show substantial fluctuations in outflow quantity. They.
include occasional sharp spikes, of extremely short duration, which are apparently attributable to
rainfall. Trd. 131 (Almes), Trb. 701 (Thacker), Tre. 52 (Lewis). However, they also show
periods of increased flow spanning several months, some of which exhibit abrupt onsets, and
magnitudes approaching, if not exceeding, 100% increases. Thacker' s chart, displaying the
Fig. 38 outflow data, with the line slanting upward representing the increase in seepage due to the
rise in the impoundment pool level, represents, in my opinion, the context within which the ·
September 1999 data should-be evaluated. Ex. Geo-14. Thacker opined that the slanted line
depicted the influence of impoundment seepage that was dictated by Darcy's law, and that it is
the fluctuations above that line that would have to represent unusual flow increases. Trb. 702.
Virtually all witnesses agreed with the proposition that impoundment seepage would increase as
the pool level rose. None, except Thacker, attempted to quantify the increase. Accepting the .·
chart's depiction as generally accurate, it is apparent that there were a number of increases in
flow measurements that were substantial and lasted for months. In mid-1995, there was an
abrupt increase of nearly double the depth of flow, which lasted approximately three to four
months. Another abrupt and substantial increase occurred in late 1995, again lasting about four
months. There was a more gradual; but substantial, rise beginning in mid-1996 and lasting to
mid-1977, and a similar rise extending from the beginning of 1998 until mid-1999.
As Lewis observed in support of his opinion that South Mains outflows were within
expected ranges, the charts showed a "two-fold increase in flow" in 1995, ''jumps in 1997" and
"then it jumped again in 1998. That's more than a two-fold increase." He concluded that "if you
really evaluate that step [the September 1999 increase], it's a pretty small step in the grand
scheme of the 68-acre impoundment, the 80-plus acres of surface area that drains down into the
mine, the seven to ten acres of property drained into Pond 200, [and] the perpetual seeps that
drain into Pond 200 .... [I]t's not a significant step." Tre. 132-34.
The increase in September 1999, from 6.0 inches to 8.5 inches, when viewed in isolation,
as the Secretary urges, could be deemed out of the ordinary or significantly different than what
had occurred in the immediate past, and could be classified as unusual: However, when viewed
in light of the historical fluctuations in flow measurements, it appears much more like another
cycle of a repeating pattern of increases in flow depth that lasted for a few months and then
returned to lower levels. In fact, the flow depth measurements did drop to the 7 .0 inch range

29 FMSHRC 1039

from April to June 2000, although that was well after the Secretary argues that the increase
should have been reported. The Secretary's expert, Almes, was of the opinion that it would have
been appropriate to wait for some time to confirm the readings and see if the flow decreased. He
believed that the increase in flow should have been reported by January 2000, Trd. 158, Trb. 403.
Owens believed that it should have been reported after one month. Trc. 311.
MCC maintains that the fact that the flow depth stayed essentially the same frorri the end
of September through December 1999 indicates that no piping or leaking was occurring. If
piping had been occurring, there should have been a steady and unabated increase in flow.
Tre. 63-64, Trb. 832, 887 (Lewis). While there could have been short term decreases due to
plugging of the piping opening, piping generally occurs in a zone and quickly works around
obstructions. Decreases or level flows would be relatively brief, certainly not several months.
Tr£ 48~ 58-60, 126, Trb. 970-74 (Hagerty).
The Secretary was highly critical of what she viewed as MCC's failure to evaluate the
available flow data, and it was the alleged failure to evaluate the data in ·a systematic way that
was the predicate for the unwarrantable failure designation. Trc. 310-1 l, Tra. 889 (Owens).
It is somewhat remarkable, then, that MSHA did not analyze the earlier increases in flow, 41 and
the Secretary offered no explanation of the historical flow patterns, which included several abrupt
and substantial increases that subsequently abated. The Secretary focused on a few weeks of
data, and did not attempt to show that it was significantly different than previous flow patterns, ·
or to explain why the increase to a depth of 8.5 inches should have been regarded with alarm
when there had been numerous readings of 7 .0 inches approximately one year earlier when the·
impoundment level was ten feet lower.
Because of their extensive experience and recognized expertise, I place considerable
weight on Thacker' s and Lewis' testimony that the amount of flow from the South Mains entry
was within expected limits for that size facility and the pool elevation, i.e., there was no unusual
change in flow quantity that indicated possible impoundment leakage. Trb. 696-97, 702, 706,
742-43 (Thacker), Tre. 53-54, 70-71 (Lewis). Hagerty also testified that, considering rainfall
and the pool level, the increase in Pond 200 outflow was normal, and what would have been
expected. Trf. 81.
There is little disagreement that all of the other measures of impoundment performance
indicated that there was no impoundment leakage. The pool level had risen steadily. There were
no swirls observed that would have indicated a leak. The measurements at the piezometers,
seeps and drains, were all within normal limits, and there was no evidence of slope instability.
The most significant factor, however, was the virtual absence of suspended solids in the outflow.
As noted above, I find convincing the testimony of Lewis, Ballard, Johnson, Hagerty and
Bellamy, to the effect that ifthere had been piping or leakage, there would have been suspended
solids in the Pond 200 outflow. MSHA's Owens testified that the September 1999 flow increase

41

Trc. 187-88, Tra. 249 (Fredland).
29 FMSHRC I 040

was, most likely, evidence that something significant had happened with piping, i.e., the erosion
of solids by impoundment leakage. Trc. 296, 366. If so, there definitely should have been
suspended solids evident in the outflow. Not only were there no visible signs of suspended
solids, the KPDES reports establish that there were virtually no suspended solids in the Pond 200
outflow, from September 1999 through the October 2000 breakthrough.42 Trb 471, 474-75
(Johnson); ex. MCC-L.
I find that the Secretary has failed to carry her burden of proof on this issue. For the
reasons stated above, I reject comparisons to the 1994-99 average flow figure. The change in
quantity of flow that occurred in September of 1999, when viewed in light of the historical
pattern of flow measurements and the other conditions at the impoundment site, would not have
been viewed by a reasonably prudent mine manager or engineer as an unusual increase in
quantity of flow that would indicate possible impoundment leakage, even when viewed with
heightened awareness because of the 1994 breakthrough and the increase in impoundment pool
elevation.
This conclusion is confirmed by the empirical evidence. As Lewis and MCC's president,
Hatfield, pointed out, numerous individuals, virtually all of whom had extensive experience with
impoundments and were well aware of the 1994 breakthrough and the potential for another
breakthrough, inade frequent observations of South Mains and the Pond 200 outflows, and
virtually every aspect of the impoundment. The same personnel had been monitoring the
impoundment for years, and had experienced the increases and decreases reflected in Fig. 38 and
Thacker's charts. 43 None of them perceived the increase in Pond 200 outflow that occurred in
September 1999 as unusual, or indicative of possible impoundment leakage. Tre. 156-57
(Lewis); Tra. 1257, 1294 (Hatfield).

42

By all accounts, the outflow from the South Mains entry and the discharge from Pond
200 were at all times clear water, i.e., there was no evidence of turbidity, cloudiness, or
suspended solids. Trb. 604 (Betoney); Trd. 278 (Muncie); Tra. 130 (Fredland); ex. MCC-G.
43

Muncie, the preparation plant superintendent, had over thirty years of experience with
impoundments, had been certified as an impoundment inspector by MSHA, and had personally
visited the impoundment site two or three times per week. Trd. 242-43, 277-78, Tra; 1175-76.
Howard, Geo's inspector, was certified as an impoundment inspector by MSHA, and has
conducted some 7,000 impoundment inspections from 1989to date. Trb. 214-16, 224, 233.
Bellamy,·MSHA's inspector, has a college degree in mining engineering, over 16 years of
experience with impoundments, and had been certified by MSHA as an impoundment instructor.
Trd. 338-40, Trb. 535-37.
29 FMSHRC 1041

ORDER
MCC's contests of Order No. 7144402 and Citation No. 7144401 are SUSTAINED.
Order No. 7144402 and Citation No. 7144401 are hereby VACATED, and the petition as to
44
those alleged violations is hereby DISMISSED.

£<7,

~~~~
·-.'·Michael E. · inski
A."'· · ative Law Judge

Distribution (Certified Mail):
James B. Crawford, Esq., Melissa Bowman, Esq., Office of the Solicitor, U.S. Department of
Labor, 1100 Wilson Blvd., 22°d Floor, Arlington, VA 22209
Marco M, Rajkovich, Jr., Esq., Melanie Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick &
True, PLLC, 2333 Alumni Park Plaza, Suite 310, Lexington, KY 40517
/mh

44

Although I have not accepted the Secretary's case on these alleged violations, I have
the utmost respect for the-MSHA personnel to whom fell the difficult task of investigating the.
breakthrough and determining its causes. There may have been a·piping induced failure, as they ·
concluded. However, on the two alleged violations that remain at issue, and after careful
consideration of the extensive record,-! concluded that the Secretary did not carry her burden of
proof.
29,.FMSHRC 1042

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

November 16, 2007
JIM WALTER RESOURCES, INC,
Contestant

CONTEST PROCEEDING
Docket No. SE 2007-307-R
Order No. 7692770; 0612512007

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

No. 4Mine
Mine ID 01-01247

ORDER GRANTING CONTESTANT'S
MOTION FOR SUMMARY DECISION
Before:

Judge Zielinski

This case is before me on a Notice of Contest filed by Jim Walter Resources,
Incorporated ("JWR") pursuant to section 107(e) of the Federal Mine Safety and Health Act of
1977 ("Act"), 30 U.S.C. § 817(e). JWR seeks vacation of Order No. 7692770, an imminent
danger order issued pursuant to section 107(a) of the Act. JWR has moved for summary
decision. The Secretary has opposed the motion, contending that JWR has failed to establish that
there are no material facts in dispute or that it is entitled to summary decision as a matter of law.
For the reasons set forth below, the motion is granted.

Following the Sago and Darby mine disasters, where miners were killed as a result of a
methane explosions originating in sealed areas of mines, the Secretary's Mine Safety and. Health
Administration ("MSHA") took action to require mine operators to monitor the atmosphere in
such areas and to address potentially hazardous conditions. MSHA issued Program Policy
Bulletin No. P06-16, on July 19, 2006, which required operators to assess the atmosphere behind
alternative seals, and to take remedial action if concentrations of methane from 3 percent to 20
percent were present. On May 22, 2007, MSHA issued an Emergency Temporary Standard
("ETS"), pursuant to section lOl(b) of the Act. 72 FR 28796-28817 (May 22, 2007). The ETS,
which became effective upon publication, amended 30 C.F.R. § 75.335, by increasing strength
requirements for newly constructed seals. It also required mine operators to develop and submit
for approval protocols for monitoring and maintaining inert the atmosphere in sealed areas,

29 FMSHRC 1043

where the seals were not constructed to withstand 120 psi of overpressure. The ETS further
provided:
(4) When oxygen concentrations are 10.0 percent or greater and methane
concentrations are from 3.0 percent to 20.0 percent in a sealed area, the mine
operator shall take two additional gas samples at one-hour intervals. If the two
additional gas samples are from 3.0 percent to 20.0 percent and oxygen is 10.0
percent or greater (I) The mine operator shall implement the action plan in the protocol; or
(ii) Persons shall be withdrawn from the affected area, except those persons
referred to in section 104(c) of the Act.
30 C.F.R. § 75.335(b)(4).
On June 25, 2007, Danny Crumpton, an MSHA inspector, began a quarterly inspection of
JWR's No. 4 Mine. He reviewed seal examination records required to be kept under the ETS,
and noted several entries reporting levels of methane within the action range specified in the
ETS. He called the MSHA District 11 office, and spoke with Johnny Calhoun, the head of the
ventilation division, and with Gary Wirth, the assistant district manager. He reported the seal
examination record entries and told them he would take gas readings at the seals, which he
proceeded to do. Readings at several seals were unremarkable. However, at 11 :23 a.m., he
conducted a test at seal 31, and measured methane at 10.0 percent and oxygen at 12.6 percent.
He took a bottle sample, and waited to take the additional hourly measurements referenced in the
ETS. Danny Aldrich, JWR's outby coordinator, who accompanied Crumpton, called for foam
packs as a means to abate the condition. 1 Crumpton took another measurement at 12:27 p.m.,
and obtained the same result as the first test. At 1:27 p.m., Crumpton took the third measurement
required by the ETS, and found that the methane concentration was 8.0 percent, and the oxygen
concentration was 12. 7 percent.
The three successive measurements within the specified ranges satisfied the ETS 's
requirement for remedial action. Because JWR's protocol/action plan had not yet been approved,
the action required by the ETS was withdrawal of persons from the affected area. Crumpton took
no immediate action. He continued his inspection, and proceeded to the next seal, seal 24. At
1:50 p.m., Crumpton took a measurement at seal 24, and detected 14.0 percent methane and
10.5 percent oxygen. He then proceeded to the nearest phone, called Wirth, and reported the
results of his measurements. Wirth instructed Crumpton to issue an imminent danger withdrawal
order at 2:20 p.m.

1

This was consistent with the proposed action plan in JWR's protocol, which had been
submitted to, but not yet approved by, MSHA.
29 FMSHRC 1044

Crumpton issued Order No. 7692770, as directed by Wirth, relying upon Wirth's
judgment. 2 Throughout the course of these events, Crumpton did not conclude that there was, or
was not, an imminent danger. Contestant's Statement of Undisputed Facts, #11. The possibility
that a roof fall might ignite the gas detected by Crumpton was the only potential ignition source
considered by Wirth in making the decision to have Crumpton issue the 107(a) order. Id. #13.
At no time did Crumpton note any indications that a roof fall was imminent, behind or near seal
31, or in any other area. Nor did he note any other roof hazards. Id. #14.
Analysis
Commission Procedural Rule 67, 29 C.F.R. § 2700.67, states that a motion for summary
decision shall be granted ifthere is "no genuine issue as to any material fact" and that ''the
moving party is entitled to summary decision as a matter oflaw." 29 C.F.R. §.2700.67(b). The
Secretary argues that there are material facts in dispute, specifically denying item #9 in JWR's
statement of undisputed facts, which reads: "The decision to issue 107(a) Order 7692770 was
based solely upon the concentrations of methane and oxygen measured at seal 31." The
Secretary maintains that Wirth' s decision also rested upon a "consideration of roof falls as a
possible ignition source." S€::c'y Op. at 5. However, in item #13 of its statement JWR asserted:
"The possibility that a roof fall might ignite the gas. detected by Inspector Crumpton was the only
potential ignition source considered by Assistant Director Wirth, in making the decision to have
Inspector Crumpton issue J07(a) Order 7692770." While factual statement#9 omits the critical
ignition source information, when read together with item #13, the Secretary's objection is
obviated. I find that there is no dispute as to any fact material to the issues raised by JWR's
motion.
Section 3(j) of the Act defines "imminent danger" as the "existence of any condition or
practice in a coal or other mine which could reasonably be expected to cause death or serious
physical harm before such condition or practice can be abated." 30 U.S.C. § 802(j). Section
107(a) of the Act provides, in pertinent part:

If, upon any inspection or investigation of a coal or other mine which is
subject to.this Act, an authorized representative of the Secretary finds that an
imminent danger exists, such representative shall determine the extent of the area··
of such mine throughout which the danger exists, and issue an order requiring the
operator of such mine to cause all persons, except those referred to in section
104(c), to be withdrawn from, and to be prohibited from entering, such area until
an authorized representative of the Secretary determines that such imminent
danger and the conditions or practices which caused such imminent danger no
longer exist.
2

The Order, exhibit 3 to Crumpton's deposition, notes the readings at both seals 24 and
31 as explosive mixtures justifying issuance of the order. However; the Secretary has stipulated
that the readings at seal 24, which were not within the explosive range, are not relied upon in
support of the order.
29 FMSHRC 1045

30 U.S.C § 817(a).
"hnminent danger orders permit an inspector to remove miners immediately from a
dangerous situation, without affording the operator the right of prior review, even where the mine
operator did not create the danger and where the danger does not violate the Mine Act or the
Secretary's regulations. This is an extraordinary power that is available only when the
'seriousness of the situation demands such immediate action.'" Utah Power & Light Co.,
13 FMSHRC 1617, 1622 (Oct. 1991) ("Utah") (quoting from the legislative history of the
Federal Coal Mine Health and Safety Act of 1969, the predecessor to the 1977 Act). An
imminent danger exists "when the condition or practice observed could reasonably be expected
to cause death or serious physical harm to a miner if normal mining operations were permitted to
proceed in the area before the dangerous condition is eliminated." Wyoming Fuel Co.,
14 FMSHRC 1282, 1290 (Aug. 1992) (quoting from Rochester & Pittsburgh Coal Co.,
11FMSHRC2159, 2163 (Nov. 1989) ("R&P")). While the concept of imminent danger is not
limited to hazards that pose an immediate danger, "an inspector must 'find that the hazardous
condition has a reasonable potential to cause death or serious injury within a short period of
time.'" Cumberland Coal Resources, LP, 28 FMSHRC 545, 555 (Aug. 2006) (quotingfrom
Utah,.13 FMSHRC at 1622). Inspectors must determine whether a hazard presents an imminent
danger without delay, and a finding of an imminent danger must be supported "unless there is
evidence that [the inspector] had abused his discretion or authority." R&P, 11 FMSHRC
at 2164.
While an inspector has considerable discretion in determining whether an imminent
danger exists, that discretion is not without limits. An inspector must make a reasonable
investigation ofthe facts, under the circumstances, and must make his determination on the basis
of the facts known, or reasonably available to him. As the Commission explained in Island
CreekCoal Co., 15 FMSHRC 339, 346-347 (Mar. 1993):
While the crucial question in imminent danger cases is whether the
inspector abused his discretion or authority, the judge is not required to accept an
inspector's subjective "perception" that an imminent danger existed. Rather, the
judge must evaluate whether, given the particular circumstances, it was reasonable
for the inspector to conclude that an imminent danger existed. The Secretary still
bears the burden of proving [her] case by a preponderance of the evidence.
Although an inspector is granted wide discretion because he must act quickly to
remove miners from a situation that he believes to be hazardous, the
reasonableness of an inspector's imminent danger finding is subject to subsequent
examination at the evidentiary hearing.
An inspector "abuses his discretion ... when he orders the immediate withdrawal of
minerscunder section 107(a) ih circumstances where there is not an imminent threat to miners."
Utah, 13 FMSHRC at 1622-23.

29 FMSHRC 1046

The critical question in determining whether an accumulation of methane presented an . ·
imminent danger is whether there was an ignition source that might reasonably have been
expected to cause an explosion resulting in death or serious injury within a short period of time.
In Island Creek, the Secretary conceded that explosive accumulations of methane in a longwall ·
gob would create an imminent danger only if an ignition source presented a significant danger. 3
15 FMSHRC at 347. Similarly, on the related question of whether a methane accumulation
hazard presented a reasonable likelihood of an injury causing event, the Commission has focused
on the presence of an ignition source. Texasgulf, Inc., '.10 FMSHRC 498, 501 (Apr. ·1988)
(critical question for significant and substantial determination is likelihood of explosive
concentrations of methane coming into contact with an ignition source). The Commission has
held that statements that certain events "could" occur, are not sufficient to support a finding that
there was a reasonable likelihood of an ignition of methane for a significant and substantial
determination. Zeigler Coal Co., 15 FMSHRC 949, 953-54 (June 1993).
JWR's motion challenged Crumpton's decision to issue the order, and the fact that he,
admittedly, had not made a determination that an imminent danger existed. The Secretary
countered that it was Wirth, who is also an authorized agent of the Secretary, who made the
determination to issue the order, and that his exercise of discretion should be sustained. In its
reply to the opposition, JWR does not dispute the fact that .Wirth made the decision, and that he •
did not have to be present at the scene to have done so. However, it contends that Wirth must be
held to the same "abuse of discretion" standard that would apply had he been on the scene, and
that he clearly abused his discretion in this case.
The alleged imminent danger condition; an explosive level of methane in the atmosphere·
behind seal 31, was confirmed by Crumpton no later than 11 :23 a.m. 4 Crumpton was an
experienced inspector who had made determinations on issuance of imminent danger orders in
the past. He was aware of potential ignition sources in the sealed area, namely roof falls and
electromagnetic field changes. Yet he made no determination that an imminent danger existed at
that time. Nor did he make a determination that an imminent danger existed when he confirmed
the readings at 12:27 p.m., re-confirmed them at 1 :27 p.m., or found similar readings at seal 24 at
1:50 p.m. At 2:20 p.m., when he talked to Wirth, he still had not made a determination that an
imminent danger existed.

It is extremely doubtful that Wirth could have been in a better position than Crumpton to.
assess whether conditions at the mine presented an imminent danger. Crumpton, who was on the

3

The Commission expressly did not reach the issue of whether the Secretary "may
support an imminent danger order by showing that an explosive accumulation of methane is
present without proving a specific ignition source," 15 FMSHRC at 348. The Secretary does'ttot
claim to take such a position here.
4

As noted in the ETS, methane is explosive at concentrations between 5% and 15%,
when in the presence of oxygen concentrations of at least 12%. 72 FR at 28799.

29 FMSHRC 1047

scene, had not identified any roof hazards,· and never concluded that a roof fall was imminent in
the sealed area, or in any other area of the mine. Wirth testified during his deposition that the
only potential ignition source that he considered was a roof fall. However, he admitted that,
because of "the unknown composition of the atmosphere and the unknown nature of the
composition of the rock" in JWR's mine, it would have been pure conjecture to specify a
probability for an ignition from a :roof fall. 5 Cont. ex. 3 at 76. It is clear that he did not instruct
Crumpton to issue the order based upon an assessment of the likelihood of a roof fall resulting in
an ignition. He testified that he was applying an unwritten rule, or policy, subscribed to by
unnamed MSHA officials, to the effect that "atmosphere readings that fell within the ETS
numbers of 4.5 to 17 [percent methane], and above 10 percent oxygen, constituted an imminent
danger." Id. at72-73.
The Commission has criticized situations in which an inspector's exercise of discretion in
determining whether an imminent danger exists had been "constrained" by instructions issued by
MSHA officials, which "precluded the inspector from conducting a requisite reasonable
investigation of the facts and exercising his discretion." Cumberland Coal Resources, LP,
28 FMSHRC 545, 555-56 (Aug. 2006). It also found "particularly appropriate" an MSHA policy
prohibiting the use. of seetion 107(a) orders for control purposes, where the instructions removed
the inspector's independent judgment in issuing imminent danger orders. 28 FMSHRC 556,
n. 14.
Wirth does not appear to have been acting in conformance with instructions from a
supervisor. Rather, he decided to adopt a position held by some other MSHA officials.
Nevertheless, he was, in essence, using the section 107(a) order for control purposes, i.e., to
enforce the withdrawal provision of the ETS. 6
·Under the authorities cited above, it is clear that an actual ignition of the explosive
atmosphere behind the seals was, at best, a theoretical possibility, and that issuance of the
imminent danger order was not justified. It is apparent that Wirth was enforcing the ETS, rather
than making a discretionary determination that an imminent danger existed. The ETS was issued

5

In a recent case, MSHA ventilation specialists, one of whom had developed training
materials on the subject, essentially conceded that a roof fall was an unlikely ignition source.
Cumberland Coal Resources, LP, 27 FMSHRC 295, 319-20 (Mar. 2005) (ALJ) (aff'd in part,
rev. in part, 28 FMSHRC 545 (Aug. 2006).
6

There may have been another avenue available to enforce the ETS. Once the three
successive readings within the ETS's specified range were obtained, JWR was obligated to
withdraw persons from the affected area. If it failed to do so within a reasonable period of time,
Crumpton could have issued a citation charging a violation of the ETS, and imposed an
appropriate time for abatement. If JWR failed to timely abate the violation, and no extension of
the abatement deadline was warranted, Crumpton could have issued an order pursuant to section
104(b) of the Act, requiring withdrawal of miners from the affected area.
29 FMSHRC 1048

upon a determination by the Secretary that miners face a grave danger when underground seals
separating abandoned areas from active workings fail. 72 FR at 28796. While that determination
supports the issuance of the ETS, it does not override the requirements for issuance of an
imminent danger order pursuant to section 107(a) of the Act. Moreover, the structure of the ETS,
which requires action if concentrations of methane and oxygen that are not necessarily explosive
exist for a period of two hours, is inconsistent with the concept of an imminent danger.

ORDER
Based upon the foregoing, Contestant's motion for summary decision is hereby
GRANTED. JWR's contest of Order No. 7692770 is SUSTAINED, and Order No. 7692770
is hereby VACATED.

"elinski
.amtlfttlstrative Law Judge

Distribution (By Electronic and Certified Mail): ·
David M. Smith, Esq., Kevin W. Patton, Esq., Maynard, Cooper & Gale, P.C., 1901 Sixth
Avenue North, 2400 AmSouth/Harbert Plaza, Birmingham, AL 35203 ·
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219-2440

/mh

29·FMSHRC 1049

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

November 16, 2007
CIVIL PENALTY PROCEEDINGS

SECRETARY OF LABOR.
MINE SAFETYAND HEALTH
ADMINISTRATION (MSHA),
.Petitioner

Docket No. WEST 2006-519-M
A.C. No. 04-01299-091434 G861
DocketNo. WEST 2007-138-M
A.C. No. 04-01299-101436 G861

v.
MORNING GLORY GOLD MINES,
Respondent

Sixteen to One Mine

DECISION
Appearances:

John D. Pereza, Conference & Litigation Representative, Mine
Safety and Health Administration, Vacaville, California, for Petitioner;
Michael A. Miller, Morning Glory Gold Mines, Alleghany, California,
for Respondent.

Before:

Judge Manning

These cases are before me on two petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"),
against Morning Glory Gold Mines (''Morning Glory"), 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").
Morning Glory contested two citations issued by the Secretary under section 104(a) of the Mine
Act. An evidentiary hearing was held in Nevada City, California.

I. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
Morning Glory is a sole proprietorship owned by Michael Miller. Morning Glory
employs the miners who work at the Sixteen to One Mine (the "mine"). Original Sixteen to One
Mine, Inc. ("Original Sixteen to One") is the owner of the mine and Mr. Miller is the president of
Original Sixteen to One. The mine is a multi-level, underground, high-grade gold mine, located
in Sierra County, California. Original Sixteen to One is a public corporation. When it was no
longer able to meet its :financial obligations, it contracted with Morning Glory for its employment
and labor needs. (Tr. 6-7).

A. Contested Citations.

29 FMSHRC 1050

On April 24; 2006, a regular inspection of the Morning Glory Mine was conducted by
MSHA Inspector Troy VanWey. He was. accompanied by Ian Haley and Kevin McCarthy from
Morning Glory. Inspector Van.Wey issued Citation No. 6393201 under section 104(a) of the·
Mine Act alleging a violation of section 57.11012 as follows:
No harrier or railings were provided to prevent persons from
. falling through the opening at the new dry bldg. The 45 inch by 73
inch opening on the river side of the new dry building was adjacent
to the travelway used to access the MCC and other storage
accessed by the miners as needed. Multiple footprints were noted
on the travelway. This condition creates a potential of a fatality to .
the miner should he fall through the opening to the ground level
which is about 20 feet below the floor level of the new dry
building.
Inspector VanWey determined that an injury was reasonably likely and that any injury resulting
from the violation was likely to be fatal. He determined that the violation was of a significant
and substantial nature ("S&S") and that Morning Glory's negligence was moderate. The safety
standard provides, in part, that "[o ]penings above, below, or near travelways through which
persons or materials may fall shall be protected by railings, barriers, or covers." The Secretary
proposes a penalty of $154.00 for this citation.
Inspector VanWey stated that he inspected the dry building that was under construction
and observed the alleged violation. A dry building is an areawhere miners can change from their
street clothes into their work clothes and vice versa. This particular area had only one point of
access. Inspector VanWey noticed an obvious opening on the river side of the dry building
measuring approximately 45 inches wide by approximately 73 inches high. There was a board
that was ten inches high across the opening at the very bottom . He believes that the opening was
located adjacent to a travelway in an area that was about 20 feet wide and about SO feet long.
Inspector VanWey felt this area was a travelway after observing a motor control area, lockers,
and multiple sets of footprints. However, the Inspector did not observe anyone in the area during
the inspection, but noted that a miner did come back later in the day to retrieve his coveralls.

Ian Haley, the mine manager, testified that this area was under construction and was
being completed as funding allowed. (Tr. 55, 65). Although miners may enter the room, it was
not being used as a change room. Mr. Miller testified that the opening in question was going to
be a door for a deck, or a window. (Tr. 74-75). Mr. Miller also felt that this area did not meet
the definition oftravelway as it was not regularly used and there was no place to go. (Tr. 77; Ex.
R-4). He was unable to explain the presence ofthe footprints, but commented that they could
have been from a construction worker who admittedly would be covered by the Mine Act.

29 FMSHRC 1051

The term ''travelway" is defined in section 75.2 as a "passage, walk or way regularly used
and designated for persons to go from one place to another." The area around the opening in the
back of the dry building that was under construction did not fit into this definition. The area was
neither "regularly used" nor "designated" to be used for persons to "go from one place to
another." The electrical panels (Motor Control Center) were near the entrance to the building
and were not near the opening. (Ex. R-4). A miner would not pass by the opening to get to the
MCC. Although there may have been some sort oflocker or storage bin in the room, there is no
indication that anyone would have walked by the opening to get to it. As stated above, the
opening was at the back of the room. Although nothing prevented anyone from entering the dry
area, it was not being used at the time and miners would not be traveling through the area to get
to any other area in the mine. Consequently, I find that the Secretary did not establish that there
was an opening "above, below, or near" a travelway and I vacate the citation.
On July 25, 2006, Inspector William Berglof issued Citation No. 6393126 under section
104(a) of the Mine Act alleging a violation of section 57.11012 as follows:
The cove~provided over the 31-inch by 24-inch hole located at the
1300 station was not in place to prevent persons or materials from
falling through the opening. A fall through this opening would
likely be fatal. Miners removed the cover and descended down the
ladderway in order to perform an electrical splice. The cover was
not put back in place. The exact time the splice was done is
unknown per the mine manager. This opening is along a travelway
but located in a remote section of the mine. There were no tripping
hazards noted.
Inspector Berglof determined that an injury was unlikely but that any injury resulting from the
violation was likely to be fatal. He determined that the violation was not S&S and that Morning
Glory's negligence was moderate. The Secretary proposes a penalty of $60.00 for this citation.
The citation was immediately terminated when the cover was closed.

Mr. Berglof is no longer employed by MSHA and he did not testify at the hearing.
Inspector VanWey authenticated the citation. Morning Glory Mines presented the testimony of
Ian Haley. The cited hatch cover opens to a raise (winze) that goes down to a pump. The hatch
cover measures 24 x 31 inches. The cited opening is not along the travelway but is about eight
feet from the middle of the entry that is the travelway. (Tr. 62; Exs. R-1, R-2). The travelway is
rarely used and the area is accessed only when a new employee is trained and during monthly
inspections. (Tr. 58). Mr. Haley stated that the miners did not have to go down the raise or even
near the hatch cover to use the secondary escapeway. (Tr. 61, 63, 65-66). In addition, because .
the hatch cover was located along the hanging wall, which is at a 45 degree angle, you have to
stoop over to open the hatch cover. (Tr. 64). "It's not something you can just walk to." Id. Mr.
Haley also felt that incorrect language was used in the citation which stated that miners removed
the cover. He stated that the hatch cover was opened, not removed.

29 FMSHRC 1052

I find that the Secretary did not establish a violation. I credit the testimony of Mr. Haley.
The entry through which miners occasionally pass is eight feet away from the cited opening. The
opening is at the end of an eight foot long entry that is perpendicular to the travelway. This
perpendicular entry cannot be construed as a travelway. Miners would never travel down that
entry except to .open the hatch and go down the raise to work on the pump. The opening was at
the end of that entry on the left side and was partially protected by the angled hanging wall.
Tripping hazards were not present in the area. I find that the entry containing the opening where
the hatch cover had been left open was not a travelway, as that term is defined by MSHA.
Consequently, I find that the Secretary did not establish a violation of the safety standard and I
vacate the citation.

B. Uncontested Citations.
The Secretary agreed to modify Citation No. 6393202 to reduce the gravity and delete the
S&S designation. She contends that the penalty should be reduced to $60.00. The Secretary
agreed to vacate Citation No. 6393122. Morning Glory agreed to accept Citation Nos. 6393124
and 6393125 as written.
Morning Glory seeks to have the penalties for Citation Nos. 6393124, 6393125, and
6393202 reduced on the basis of the ability to continue in business criterion. It set forth its
financial arguments at the hearing. (Tr. 83-85; Ex. R-5). The SEC 10-Q statement of Original
Sixteen to One for the quarter ending June 30, 2007, lists its current liabilities as $1,346,896 and
its current assets as $662,900. Id. This statement also lists its loss from operations during the
first six months of2007 as $228,185; Mr. Miller testified that Original Sixteen to One had anet
loss of$1 ll,490 in 2005 and a net loss of$405,764 in 2004. He testified that "money is very,
very tight." (Tr. 85). Mr. Miller is personally liable for the obligations of Morning Glory.
The Secretary proposes a penalty of $60.00 for each violation. This is a nominal penalty.
It has not been shown that a penalty of$180.00 will have an adverse affect on Morning Glory's
ability to continue in business.

II. APPROPRIATE CIVIL PENALTIES
Section 11 O(i) of the Mine Act sets forth six criteria to be considered in determining
appropriate civil penalties. The record shows that Morning Glory had been issued about five
citations in the 24 months preceding these inspections. Morning Glory is a small contractor with
about ten employees. (Tr. 54-55). The penalties assessed in this decision will not have an
adverse effect on Morning Glory's ability to continue in business. The citations were rapidly
abated. My gravity and negligence findings are set forth above. Based on· the penalty criteria, I
find that the penalties set forth below are appropriate.

29 FMSHRC 1053

III. ORDER
Based on the criteria in section l lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
Citation No.

30 C.F.R. §

Penalty

57.11012
57.12032

Vacated
$60.00

57.14112(b)
57.3200
57.4201(a)(2)
57.11012

Vacated
$60.00
$60.00
Vacated

TOTAL PENALTY

$180.00

WEST 2006-519-M
6393201
6393202
CENT 2007-138-M
6393122
6393124
6393125
6393126

For the reasons set forth above, the citations are AFFIRMED, MODIFIED, or
VACATED as set forth above and Morning Glory Gold Mines.is ORDERED TO.PAY the
Secretary of Labor the sum of$180.00 within 30 days of the date ofthi,,...··--·-..

Richard W. Manning
Admii:iistrative Law Judge

John D. Pereza, Conference & Litigation Representative, Mine Safety & Health Administration,
2060 Peabody Road, Suite 610, Vacaville, CA 95687-6696 (Certified Mail)
Michael Mill~; Morning Glory Gold Mines, P.O. Box 941, Alleghany, CA 95910-0941
(Certified Mail)

RWM

29.FMSHRC 1054

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, DC 20001-2021
Telephone No.: 202-434-9950
Telecopier No.: 202-434~9954

November 16, 2007
CIVIL PENALTY PROCEEDING

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

Docket No. WEYA 2006-29
A.C. No. 46-08909-70032 A

v.
KENNETH D. BOWLES ,employed by
NEW RIVER MINING COMPANY,
Respondent

Mine No. 1

DECISION
Appearances: Karen M. Barefield, Esq., U.S. Department of Labor, Arlington, VA, on behalf of
the Petitioner
Kenneth D. Bowles, Princeton, WV,pro se

Before:

Judge Barbour

This case is before me on a petition for the·assessment of civil penalty filed by the
Secretary of Labor ("Secretary'') on behalf of her Mine Safety and Health Administration
("MSHA") against Kenneth D. Bowles ('Bowles"), an employee of New River Mining Company
("New River" or "the company") pursuant to sections 105 and 110 of the Federal Mine Safety
and Health Act of 1977 ("the Act") (30 U.S.C. §§ 815, 820). The Secretary alleges Bowles, as an
agent of New River, knowingly violated one of the Secretary's safety standards for underground
coal mines. She also alleges the violation was a significant and substantial contribution to mine
safety hazards ("S&S") and was caused by Bowles's high degree of negligence. The Secretary
seeks a civil penalty of $1,500. The alleged violation is set forth in an order issued pursuant to
104(d)(2) of the Act (30 U.S.C. § 814(d)(2)). Bowles denies the Secretary's allegations. The
case was tried in Bluefield, West Virginia on August 14, 2007.
The order was issued for the company's alleged failure to comply with its roof control
plan ("the Plan") at the company's Mine No. 1 ("the mine"), a bituminous underground coal mine
located in Greenbrier County, West Virginia. The company was cited for the violation after
slickensides were discovered in the 001-0 Mechanical Mining Unit ("MMU") of the mine
without at least two cable bolts per row installed between rows of the section's primary roof

29FMSHRC1055

support. 1 Tr.21. The conditions were found during an inspection conducted by MSHA
inspectors on August 6, 2004.

THE INSPECTION
Harold Hayhurst ("Hayhurst") is employed by MSHA as an inspector. Hayhurst's job
duties include the inspection of coal mines, accident investigations, and the review of roof
control plans. Tr. 18-19. Priorto his employment with MSHA, Hayhurst accumulated 21 years
of experience in the mining industry as an equipment operator, section foreman, mine foreman,
and mine superintendent. Tr. 18. Hayhurst has completed the roof control specialist and accident
investigation training provided by MSHA. Tr. 19.
On the evening of August 6, 2004, Hayhurst, along with 3 other MSHA inspectors,
arrived at the mine. The inspectors proceeded underground and traveled to the mine's active
section. There, Hayhurst observed slickensides in the roof. Tr. 21. Hayhurst described the
slickensides as "glassy," "highly polished," "easy to see," {Tr. 24) and "real slippery." Tr. 30.
Hayhurst also testified "there hadn't been any cable bolts installed [in the roof] between the rows
of bolts as required by the [P]lan." Tr. 21. In Hayhurst's opinion, the presence of the slickensides
and the lack of cable bolts was obvious.
Another MSHA inspector took several photographs of the conditions. One of the
photographs showed a gray shelf of slickenside and a sandstone slickenside. Tr. 24; Gov't Exh.
4. Another photograph showed a "big drag fold in the roof' that contained slickensides. An
additional photograph showed portions of the roof that had fallen and lay next to one of the
entry's ribs. Tr. 24; Gov't Exh. 5.
The approved roof control plan, stated "[w ]here slickensided formations are present, the
primary roof support shall be supplemented with a minimum of 2 cable bolts per row installed
between the rows of primary support. These cable bolts shall be a minimum of 8 feet in length."
Gov'tExh. 7 at3. As a result of the slickensides and the lack of cable bolts, Hayhurst concluded
the roof control plan had been violated and he issued an order of withdrawal to New River
charging the company with a violation of section 75.220(a)(l). 2
"Slickensides" are defined as "striations, grooves, and polish on joints and fault
surfaces." Am. Geological Institute, Dictionary ofMining, Mineral, and Related Terms 513 (2d
ed. 1997). They are frequently indicative of unstable and weak roof. See Tr. 27-28.
2

30 C.F.R. §75.220(a)(l) requires each operator of an underground coal mine to:
develop and follow a roof control plan, approved by the
District Manager,,that is suitable to the prevailing
geological conditions, and the mining system to be
used at the mine. Additional measures shall be taken
to protect persons if unusual hazards are encountered.
29 FMSHRC 1056

Hayhurst testified at the time of the inspection Bowles was the mine superintendent.
Tr. 40. Hayhurst discussed the order with Bowles. Tr. 47. He questioned Bowles as to why the
cable bolts had not been installed. According to Hayhurst, Bowles replied he didn't feel they
were needed. Tr. 48. Hayhurst believed that Bowles, as the mine superintendent, was
responsible for ensuring the roof control plan was followed. Tr. 48.

THE ORDER, THE ALLEGED VIOLATIONS.AND THE PROCEEDINGS AGAINST
NEW RIVER AND AGAINST KENNETH BOWLES

The subject order, Order No. 7227134, states:
The approved roof control plan was not being complied with on the 001-0
MMU. The mine roof, on the 001-0 MMU contains high angled slips and
slickensided formations in the numbers 1, 2, 3, 4, 5, 6, and 7 entries, and
adjoining crosscuts, and the primary roof support has not been suppleniented
with a minimum of 2 cable bolts per row at. any of these locations. The
approved plan-states that where slickensided forrhations are present the
primary roof support will be supplemented with at least 2 cable bolts per row
installed between the rows of primary support. These conditions were
extensive and obvious to anybody traveling on the section including foremen
and examiners. The section started mining in this· area of the mine on
7/29/2004. This citation is an unwarrantable failure to comply with the
approved roof control plan.
Gov't Exh. 8.
Following issuance of the order, the Secretary proposed the company be assessed
a civil penalty of $3;700 for the alleged violation of section 75.220(a)(l ). In addition to
the allegation of the violation of section 75.220(a)(l), the Secretary's petition proposed
assessments for several other alleged violations. The petition was filed with the
Commission as Docket No. WEVA 2005-51. When New River failed to answer the
petition, a default order was issued and the company was assessed the proposed penalties.
See Amended Order of Default (November 29, 2005).
Subsequently, the Secretary brought the subject individual civil penalty case
against Kenneth Bowles asserting he, as the agent of New River, kriowingly violation the
roof control plan as stated in the order.
Section 1 IO(c) states:
Whenever a corporate operator violates a mandatory health
or safety standard or knowingly violates or fails· or refuses to comply

29 FMSHRC 1057

with any order issued under this chapter or any order incorporated
in a final decision issued under this chapter, except an order
incorporated in a decision issued under subsection (a) of this section
or section I 05(c) of this title, any director, officer, or agent of such
corporation who knowingly authorized, ordered, or carried out such
violation, failure, or refusal shall be subject to the same civil penalties,
fines, and imprisonment that may be imposed upon a person under
subsections (a) and (d) of this section.

THE ISSUES
The principal issues are whether the alleged violation occurred, whether Bowles was
an agent of the operator as defined by the Act, whether Bowles knowingly authorized,
ordered, or carried out the violation, and if so, the amount of the civil penalty that
must be assessed, taking into consideration the applicable civil penalty criteria as set
forth in section I lO(i) of the Act. 30 U.S.C. § 820(i),

THE VIOLATION
To establish a violation of section 75.220(a)(l) )the Secretary must prove the
provision allegedly violated is part of the approved and adopted plan. Jim Walter
Resources, Inc., 9 FMSHRC 903, 907(May1987) .. Additionally, the Secretary must
prove the cited condition or practice violated the provision. Id. "When a plan
provision is ambiguous, the Secretary may establish the meaning intended by the
parties by presenting credible evidence as to the history and purpose of the provision,
or evidence of consistent enforcement. Harlan Cumberland Coal Co., 20 FMSHRC
1275, 1280 (Dec. 1998 )(citing Jim Walter Resources, Inc. 9 FMSHRC at 907). "The
ultimate goal of the [plan] approval and adoption process is a mine-specific plan with
provisions understood by both the Secretary and the operator and with which they are
in full accord.... '[A]fter a plan has been implemented (having gone through the
.
adoption/approval process) it should not be presumedlightly that terms in the plan do
not have an agreed upon meaning."' Id. (quoting Penn Allegh Coal Co., 3 FMSHRC
2767, 2770 (Dec. 1981)).
·
Clearly, the Secretary met her burden as to the first part of the test. The plan states that
when slickenside formations are present, the primary roof support shall be
supplemented with cable bolts. The plan was in effect on the date of the inspection and
the citation alleged a violation of the stated provision of the plan. The second part of
the test also was met by the Secretary through testimony and photographs depicting the
slickenside formations that were present and the lack of supplemental roof bolts to
support the roof in the cited area. Bowles may have believed, as he told Hayhurst, that
supplemental bolts were unnecessary (see, e.g. Tr. 48, 60, 63), but the plan called for
their installation, and the plan had be.en approved. Therefore, I find the violation
existed as charged.

29 FMSHRC I 058

S&S AND GRAVITY
An S&S violation is a violation "of such nature as could significantly and substantially.
contribute to the cause and effect of a ... mine safety or health hazard." 30 U.S.C. § 814(d). A
violation is properly designated S&S, "if, based upon the particular facts surrounding that
violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature." Cement Div., Nat'l Gypsum Co., 3 FMSHRC
822, 825 (April 1981). to establish the S&S nature of a violation, the Secretary must prove:
(1) the underlying violation; (2) a discrete safety hazard - that is, a measure of danger to safety
- contributed to by the violation; (3) a reasonable likelihood the hazard contributed to will
result in an injury; and (4) a reasonable likelihood the injury will be of a reasonably serious
nature. Mathies Coal Co., 6 FMSHRC 3-4(January1984); accord Buck Creek Coal Co., Inc.,
52 F.3d 133,135 (71h Cir. 1995); Austin Power Co., Inc. v. Sec'y ofLabor, 861F.2d99, 103 (5th
Cir. 1988) (approving Mathies criteria).
It is the third element of the S&S criteria that is the source of most controversies
regarding S&S findings. The element is established only if the Secretary proves "a reasonable
likelihood the hazard contributed to will result in an event in which there is an injury." US.
Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (August 1985). Further, anS&S determination
must be based on the particular facts surrounding the violation and must be made in the context
of continued normal mining operations. Texasgulf, Inc., 10FMSHRC1125 (August 1985);
US. Steel, 7 FMSHRC at 1130.
Finally, the S&S nature of a violation and the gravity of the violation are not
synonymous. The Commission has pointed out that the "focus of the seriousness .of the
violation is not necessarily onthe reasonable likelihood of serious injury, which is the focus of
the S&S inquiry, but rather on the effect of the hazard if it occurs." Consolidation Coal Co., 18
FMSHRC 1541, 1550(September1996).
The first factor was satisfied as I have found the Secretary established a violation of
section 75.220(a)(l). The other factors likewise were satisfied. Failing to comply with the roof
control plan posed a discrete safety hazard by subjecting miners to the danger of falling rock
due to unstable and inadequately supported roof, a hazard which could result in serious injuries
to miners working in the 001-0 MMU. The record supports a finding that there was a
reasonable likelihood of injury due to the failure to comply with the roofcontrol plan.
Slickensides frequently indicate weak and unstable roof making it reasonably likely that debris
could fall and injure a miner. As Inspector Hayhurst persuasively testified, the cited roof was
brittle and pieces of it were prone to fall between the permanent roof bolts. Moreover; the
height of roof (six feet in most areas) meant miners were likely to be cut or even fatally injured
by the falling debris. Tr. 30. Therefore, I conclude that there was a reasonable likelihood that
failure to comply with the approved roof control plan could result in injury. In addition, the
violation was serious as the effect could seriously injure or possibly kill a miner.

29 FMSHRC 1059

SECTION llO(c) LIABILITY
As previously noted, under Section 110(c) of the Act, "whenever a corporate operator
violates a mandatory health or safety standard, a director, officer, or agent of such corporate
operator who knowingly authorized, ordered, or carried out the violation shall be subject to an
individual civil penalty." Maple Creek Mining, Inc., 27 FMSHRC 555, 566-67 (August 2005);
30 U.S.C. § 820(c)). Pursuant to Section l lO{c), the judge must determine whether the
corporate agent knew or had reason to know of a violative condition. Id. at 567. In order for a
violation to be knowing, it must occur when an individual "in a position to protect employee
safety and health fails to act on the basis of information that gives him knowledge or reason to
know of the existence of a violative condition." Id.; quoting Kenny Richardson, 3 FMSHRC 8,
16 (January 1981).
Bowles testified that he was aware of the requirements of the approved roof control
plan. Tr. 103. Bowles had discussions with some oftheroofbolters and other miners regarding
the roof control plan and Bowles told them to "[d]o it like you've always done it." Tr. 109.
Bowles stated that when the top was taken down and it was solid, slickenside. was not present
and no cable bolts were required. Id.; see also Tr. 116-119. However, Inspector Hayhurst
persuasively testified and presented photographic evidence that slickensides were present, and
that they had existed for approximately one week without cable bolts. Tr. 48; Gov't. Exh. 4-5.
Therefore, I find that Bowles knowingly violated the standard as he was aware of the
requirements of the roof control plan, had reason to know of slickenside conditions, and did not
ensure cable bolts were installed.

An agent under Section 3(e) of the Act is defined as "any person charged with the
responsibility for the operation of all or a part of any coal or other mine, or the supervision of
the miners of a coal or other mine."· Bowles testified on August 6, 2004, he was acting as the
mine manager. Tr. 100. Bowles also stated that .should miners need to be disciplined the mine
or section foreman would come to him to determine the proper company procedure. Id.
Moreover, Bowles said "yes" when asked ifhe was "the voice of the owner on the property."
Tr. 10 l. Additionally,. Bowles had the authority to fire a mine foreman after discussion with
the mine owner. Tr. 102. Bowles played a major supervisory role, if not the major supervisory
role, at the mine and was therefore an agent of the operator at the time of the violation.
The Commission has held that a "violation under section 110(c) involves aggravated
conduct, not ordinary negligence." BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (August
1992). Bowles' actions constitute more than ordinary negligence as he knowingly disregarded
the approved Plan and made his own determination as to what should be done without regard
to miners' safety. Therefore, I conclude Bowles was liable under section 110(c), for the
violation of section 75.220(a)(l) cited in Order No. 7227134.

CIVIL PENALTY CRITERIA
This was a serious violation, and Bowles exhibited more than ordinary negligence in
failing to comply with the roof control plan because he had reason to know of the slickensides
29 FMSHRC 1060

yet failed to ensure compliance with the Plan .. In addition, Bowles had a history of previous
knowing violations in that he was previously cited for a knowing violation while employed by
another company. See Gov't Exh. 1O; Tr. 49-51. Finally, there is no evidence in the record to
suggest paying the penalty proposed by the Secretary will prevent Bowles from meeting his
day-to-day financial obligations. For these reasons, I conclude the penalty of$1,500.00
proposed by the Secretary is appropriate.

ORDER
. Kenneth Bowles SHALL pay a civil penalty of $1,500 within 40 days of the date of
this decision, and upon payment of the penalty this proceeding IS DISMISSED. 3

flwicl
i '~--~v/1-
David F.~~
Administrative Law Judge
(202) 434-9980
Distribution: (Certified Mail)
Karen M. Barefield, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209-2247
Kenneth Bowles, Rural Route 4, Box 660 P, Princeton, WV 24740
/sf

3

If payment within the time ordered proves onerous, Bowles may wish to try to arrange a
structured payment plan with the Secretary.
29 FMSHRC 1061

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISJRATIVE LAW JUDGES
601 NEW JERSEY AVENUE. N.W:, SUITE 9500
WASHINGTON, D.C. 20001

November 19, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
·Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 2006-201
A.C. No. 36-09274-87087

v.
SUMMIT ANTHRACITE, INC.,
Respondent

Brockton Slope

DECISION

Before: Judge Bulluck
Appearances: Lynne Bowman Dunbar, Esq., U.S. Department of Labor, Arlington, Virginia, and
Ronald M. Miller, CLR, U.S. Department of Labor, Hunker, Pennsylvania, for
Petitioner;
Michael Rothermel, President, Summit Anthracite, Inc., Klingerstown,
Pennsylvania, for Respondent.
This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary
of Labor on behalf of her Mine Safety and Health Administration ("MSHA"), against Summit
Anthracite, Incorporated ("Summit"), pursuant to section 105 of the Federal Mine Safety and
Health Act of 1977 ("Act" or "Mine Act"), 30 U.S.C. § 815. The Secretary seeks civil penalties
in the amount of$1,569.00 for 19 alleged violations of the Act and her mandatory safety
standards.
A hearing was held in Reading, Pennsylvania. The Secretary's Post-hearing Brief is of
record. 1 Respondent waived its right to file a brief For the reasons set forth below, I VACATE
three citations, AFFIRM 16, as AMENDED where indicated, and assess penalties against
Respondent.

1

Two editions of the transcript were issued, identical in text, but distinguishable by
configuration of page content and count. The Secretary's Brief references the second, more
condensed edition. The citations in this decision are made to the first edition. For purposes of
Commission review and any subsequent proceedings, the first edition is the official transcript.
29 FMSHRC 1062

I. Stipulations
The parties stipulated as follows:

1. The Administrative Law Judge and the Federal Mine Safety and Health Review
Commission have jurisdiction to hear and decide this civil penalty proceeding, pursuant to
section 105 of the Mine Act, 30 U.S.C. § 815;
2. Summit Anthracite, Incorporated, was an "operator" as defined in section 3(d) of the
Mine Act, 30 U.S.C. § 803(d), at the coal mine at which the citations at issue in this proceeding
were issued;
3. The operations at Summit Anthracite, Incorporated, Brockton Slope Mine, at which
the citations at issue in this proceeding were issued, are subject to the jurisdiction of the Mine
Act;
4. The individuals, whose signatures appear in block 22 of the citations at issue in this
proceeding, were acting in tlieir official capacities as authorized representatives of the Secretary
of Labor when the citations were issued;
5. True copies of the citations at issue in this proceeding were served on Respondent or
its agent, as required by the Mine Act; and
6. The total proposed penalty for the citations at issue in this proceeding will not affect
Respondent's ability to continue in business.
Tr. 12-13.
II. Factual Backeround

Michael Rothermel is-the president of Summit Anthracite, which owns and operates the
Brockton Slope underground coal mine in Schuylkill, :Pennsylvania. Rothermel and his business
partner operate the mine on an intermittent basis and, at most, employ one to two additional
miners. Tr. 459. In the fall and winter of2005-2006, when the citations at issue were written,
Brockton Slope was a relatively new mine, and Rothermel was in the process of installing new
systems. Tr. 322. Several inspectors were involved in issuing these citations, pursuant to section
104(a) of the Act.
Inspector Ronald Pinchorski generated Citation No. 7008242 on November 22, 2005, in
the Pottsville Field Office, without a physical inspection, charging a violation of30 C.F.R.
§ 50.30, for failure to file a quarterly employment and coal production report with MSHA.
Tr. 158-63; ex. G-9.

1063

On January 10, 2006, Inspector Jack McGann, accompanied by Potttsville Field Office
supervisor, Lester Coleman, conducted an E-18, shaft/slope sinking inspection of the Brockton
Slope mine, which encompassed the surface as well as the underground areas. Tr. 22-26. During
a conversation with Michael Rothermel while on the surface, McGann observed a Mack haul
truck enter mine property and back up, without an audible back up alarm. Tr. 27-28. After

verifying that the alarm was not operable, McGann issued Citation No. 7008148, alleging a.
violation of 30 C.F.R. § 77.410(a). Tr. 34-40; ex. G-2.
The following day, January 11, Inspector Gregory Mehalchick, accompanied by his
supervisor, Tom Garcia, conducted a compliance assistance inspection of the Brockton Slope
mine because the roof support being utilized was not generally used in District 1. Tr. 61-62.
MSHA Inspector Danny Silvers was at the mine as well, conducting a spot electrical inspection
of the new installations. Tr. 58, 322. While the three inspectors were underground; accompanied
by Rothermel, several citations were issued. Mehalchick observed that the roof control system
was performing adequately but, based on measurements he took with Silvers, found that the
overall height and width of the entry at the face exceeded the specifications of the mine's Shaft
and Slope Sinking Plan. Tr. 65. Accordingly, Mahalchick issued Citation No. 3561179,
charging a violation of30 C.F.R. § 77.1900-1. Tr. 66-67; ex. G-3~ Mehalchick also issued
Citation No. 3561180, charging a violation of 30 C.F.R. § 77.1914(a), based on his observation
of a non-permissible pump in the mine that was being used to maintain the water level at the
face. Tr. 75-79; ex. G-5. Silvers issued Citation No. 7008402, alleging a violation of 30 C.F.R.
§ 77.502, based on his observation of a 110-volt submersible pump located near the continuous
miner, with a three-prong grounded cord plugged into a two-prong ungrounded extension cord.
Tr. 329-35. When he returned to the top of the slope, Silvers discovered an unused and
unplugged standard knockout (3/4 inch hole) in the bottom of the metal disconnect box on the
telephone pole located near the mine entrance. Tr. 339-40. Therefore, he issued Citation No.
7008401, charging a violation of 30 C.F.R. § 77.516. Ex. G-26. Finally, while inspecting the
electrical trailer that provides power to the underground section of the mine, Silvers discovered
two unused and unplugged 2 Yi inch openings in the top of the disconnect box located on top of
the trailer. Tr. 344-45. Consequently, he issued Citation No. 7008400, charging a violation of
30 C.F.R. § 77.516. Ex. G-27.
On January 18, Inspector Silvers returned to the Brockton Slope mine, which was not
operating that day, to continue his spot electrical inspection. Tr. 349-50, 384. Silvers met with
Rothermel and examined the electrical book, which documents the electrical examinations
conducted in the mine. Rothermel told Silvers that the mine had been energized since late
November. Tr. 355. The first record of an electrical examination, however, was January 13.
Tr. 351-53. As a consequence of finding no record of electrical monthly examinations for
November and December 2005, Silvers issued Citation No. 7008403, charging a violation of
30 C.F.R. § 77.502. Ex. G-29. As a result of the information that Rothermel gave Silvers about
the electrical installations at the mine, Silvers issued two additional citations. First, Rothermel
informed Silvers that he, Rothermel, had performed all the electrical work in the mine, and had
29 FMSHRC 1064

not had a qualified electrician examine the work before energizing the mine. Tr. 359-61. While
Rothermel reported to Silvers that he had not worked on any energized circuits, he also
acknowledged that he had not worked under the supervision of a qualified electrician. Tr. 36162. Based on his finding that Rothermel was not qualified to perform the electrical installations
in the mine without the supervision of a qualified electrician, nor had his work been examined
and tested by a qualified electrician prior to energizing the mine, Silvers issued Citation No.
7008404, alleging a violation of 30 C.F.R. § 77.501. Tr. 362-66; ex. G-30. Silvers also learned
from Rothermel that the mine's continuous miner had not passed a permissibility inspection
underground before it was placed in service in December 2005, as required by regulation, but had
been inspected off-site before it was brought into the mine, Tr. 372-75. Consequently, Silvers
issued Citation No. 7008405, alleging a violation of 30 C.F.R. § 77.502 for failure to conduct the
appropriate electrical exam in December. Tr. 376-77; ex. G-32.
On January 19, Inspector Pinchorski participated in a quarterly health and safety
inspection of the underground and surface areas of the Brockton Slope mine. Tr. 164-66.
Accompanying Pinchorski were his supervisor, Lester Coleman, supervisor Tom Garcia,
Inspector Mehalchick, two MSHA technical support personnel, and Rothermel. Tr. 164-66. As a
result of his observations, Pihchorski issued several citations. He issued Citation No. 7008253,
alleging a violation of 30 C.F .R. § 77. l 605(k), for failure to provide adequate berms along an
elevated roadway. Tr. 167; 175-83; ex.G-12, 14. Citation No. 7008254 was issued by
Pinchorski for failure to identify the mine office with a sign, in violation of section 109(a) ofthe
Act, 30 U.S.C. § 819(a). Tr. 184; ex. G-15. Citation Nos. 7008255 and 7008256 allege
violations of30 C.F.R. §§ 77.1104 and 77.205(b), respectively, for a combustible materials
accumulation and an obstructed travelway in the.mine's mobile home-type trailer. Tr. 185-94;
ex. G-16, 17. Pinchorski issued Citation No. 7008257, alleging a violation of 30 C.F .R.
§ 77.400(a), for failure to provide adequate guarding of belts and pulleys in the engine
compartment of a Caterpillar haul truck. Tr. 194-99; ex. G-18. Citation No. 7008258 alleges a
violation of30 C.F.R. § 77.1102, for failure to provide a diesel fuel storage tank with signs
warning against smoking and open flames. Tr.199-202; ex. G-19, 20. Pinchorskiissued Citation
No. 7008259, alleging a violation of30 C.F.R. § 77.205(b), for failure to make the travelway
clear of stumbling hazards in the generator building. Tr. 202-07; ex. G-21. He also issued
Citation No. 7008260, charging a violation of30 C.F.R. § 77.412(a), for failure to equip the
compressed air receiver tank with an automatic pressure relief valve and a pressure recording
gauge. Tr. 208-15; ex. G-23.
Based on information that Tom Garcia had learned on February 6, about a roof and rib
fall at Brockton Slope, Mehalchick and Garcia returned to the mine on February 7 to conduct an
investigation. Tr. 81-82. Also present were Rothermel and an inspector from the Pennsylvania
Department of Deep Mine Safety. Tr. 84-85. Mehalchick and Garcia, accompanied by
Rothermel, traveled underground as far as the collar, and observed that the area inby the collar
was unsafe: top rock had fallen, some bolts and roof support were down and the continuous
miner was visible, but covered with debris. Tr. 85, 88-96; ex. G-7. Consequently, Mehalchick
issued Citation No. 3082100, alleging a violation of 30 C.F.R. § 50.10, for failure to formally

29 FMSHRC 1065

notify MSHA that an accident had occurred. Tr. 86-87, 98-100; ex. G-8. Mehalchick also issued
a section 103(k:} order (not at issue in this proceeding), requinng Rothermel to submit for
MSHA's approval, a plan for retrieving the continuous miner. Tr. 87, 101-02.

III. Findina:s of Fact and Conclusions of Law
A. Fact of Violation
1. Citation No. 7008242

Inspector Pinchorski testified that, in assigning the Brockton Slope mine to him, his
supervisor had called his attention to the fact that the quarterly employment and coal production
report had not been timely submitted. Tr. 160. Therefore, Pinchorski issued 104(a) Citation
No.7008242, alleging a non-significant and substantial violation of section50.30(a}. 2 Citation
No. 7008242 describes the hazardous condition as follows:
The operator did not submit MSHA Form 7000-2 quarterly employment and coal
production report-to the Denver office for the 3rd quarter of2005.
Ex. G-9. Pinchorski assessed.the operator's negligence as moderate because, he reasoned,
Rothermel had been in business for a longtime and knew or should have known that the report
was due in a timely manner. Tr. 158-59. According to Pinchorski, the citation was served on
Rothermel by certified mail. Tr. 161. Thereafter, he stated, when the inspectors conducted the
health and safety inspection of the mine in February 2006, and the quarterly report had not been
submitted by that time, he issued a 104(b) order for Rothermel' s failure to abate the citation.
Tr.160-61; ex. G.,.10. The citation was finally abated on February 23, 2006, when a report was
sent to MSHA by facsimile. Tr. 161-63.
Michael Rothermel acknowledged that he had been submitting quarterly reports for 20
2

30 C.F.R. § 50.30(a) requires the following:

Each operator of a mine in which an individual worked during any day of a
calendar quarter shall complete a MSHA Form 7000-2 in accordance with the
instructions and criteria in § 50.30-1 and submit the original to the MSHA Office
of Injury and Employment Information, P.O. Box 25367, Denver Federal Center,
Denver, Colo. 80225, within 15 days after the end of each calendar quarter. These
forms may be obtained from the MSHA District Office. Each operator shall retain
an operator's copy at the mine office nearest the mine for 5 years after the
submission date. You may also submit reports by facsimile, 888-231-5515. To
file electronically, follow the instructions on MSHA Internet site,
http:/www.msha.gov. For assistance in electronic filing, contact the MSHA help
desk at 877-778-6055.
29 FMSHRC 1066

years, and stated that he had timely submitted the form by regular mail. Tr. 432-33. He admitted
that he had failed to maintain a copy of the report, even though section 50.30(a) requires
operators to retain copies of such reports for five years. Tr. 473-75. According to him, MSHA
inspectors had been more reasonable in the past about minor oversights. Tr. 434-36. He did
concede, eventually, that the report· was submitted late, and that the company now sends them by
facsimile. Tr. 435-36. Accordingly, I find that section 50.30(a) was violated, as alleged.

2. Citation No. 7008148
Inspector McGann testified that he was approximately 70 feet from the Mack haul truck .
when he observed it backing up without hearing an alarm. Tr. 28. In order to verify his
observation, he stood about three feet from the cab, instructed the operator to put the vehicle in
reverse so that he could listen for the alarm and, again, it did not sound. Tr. 29-30, 46-47.
Consequently, McGann told the truck operator that he would be issuing a citation to his boss, the
contractor. Tr. 55-57. He also issued Citation No. 7008148 to Rothermel, charging a significant
and substantial violation of section 77.410(a). 3 Citation No. 7008148 describes the violative
condition as follows:
The Mack haul truck #240 operating in the coal load out area was not provided
with an automatic warning device that gives an audible alarm when the truck is
put in reverse.
Ex. G-2. McGann testified that at the close-out conference, Rothermel stated that he was not
responsible for contractors coming on his property - - that they should have their trucks ''up to

3

30 C.F.R. § 77.410(a) requires as follows:

Mobile equipment such as front-end loaders, forklifts, tractors, graders,
and trucks, except pickup trucks with an unobstructed rear view, shall be equipped
with a warning device that-(1) Gives an audible alarm when the equipment is put in reverse; or
(2) Uses infrared light, ultrasonic waves, radar, or other effective devices to
detect objects or persons at the rear of the equipment, and sounds an audible alarm
when a person or object is detected. This type of discriminating warning device
shall-(i) Have a sensing area of a sufficient size that would allow endangered persons
adequate time to get out of the danger zone.
(ii) Give audible and visual alarms inside the operator's compartment and an
audible alarm outside of the operator's compartment when a person or object is
detected in the sensing area; and
(iii) When the equipment is put in reverse, activate and give a one-time audible
and visual alarm inside the operator's compartment and a one-time audible alarm
outside of the operator's compartment.
29 FMSHRC 1067

par." Tr. 4i-42. The citation was terminated on January 30, 2006, by Inspector Pinchorski, who
observed that the haul truck had been removed from mine property. Tr. 39-40; ex. G-2.
Inspector McGann explained that he believed it reasonably likely that an injury could
occur~ that would result in loss workdays or restricted duty, because the truck could back into

pedestrians or vehicles behind it and result in injuries to the leg and head and also, the truck
driver could be hurt. Tr. 34-35. This assessment, that the hazard affected the safety of the mine
operator, the truck driver, and the end-loader operator, formed the basis of his significant and
substantial designation. Tr. 36-37. McGann explained that he assessed the mine operator's
negligence as moderate because he was responsible for all equipment on his mine property.
Tr. 37.
Rothermel testified that the back-up alarm sounds and increases in volume the closer it
comes to an object. Tr. 424. He conceded that he did not hear the alarm sound when the truck
backed up, and that a front-end loader was operating in the area. Tr 467-68. According to him,
the back-up alarm did not sound because the driver was not backing toward any object. Tr. 42627. He admitted that he had not given the inspector this information, and he doubted that the
truck driver even knew if. Tr. 426-27. Finally, Rothermel never made the argument during the
course of the hearing that he was not responsible for the condition of the independent
contractors' trucks that enter the mine property.

It is clear that the alarm was not audible when the truck backed up and, even if the alarm
were activated by detecting echos from the sound of the truck nearing an object, as Rothermel
alleges, the standard requires that a one-time audible alarm sound outside the operator's
compartment when the truck is put in reverse. Therefore, section 77.410(a) was violated, as
alleged.

B. Si2nificant and Substantial
Inspector McGann determined that the gravity of the violation was "significant and
substantial" (or "S&S"). The S&S terminology is taken from section 104(d)(l) of the Act, 30
U.S.C. § 814(d)(l), which distinguishes as more serious any violation that is ''of such nature as
could significantly and substantially contribite to the cause and effect of a coal or other mine or
safety hazard." A violation is properly designated S&S "if, based upon the particular facts
surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury of a reasonably serious nature." Cement Division, National Gypsum Co.,
3 FMSHRC 822, 825 (April 1981 ).
In Mathies Coal Co., 6 FMSHRC 1, 3-4(January1984), the Commission set forth four
criteria that the Secretary must establish in order to prove that a violation is S&S under National
Gypsum: 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

29 FMSHRC 1068

that the injury in question will be of a reasonably serious nature.. See also Buck Creek Coal,. Inc.
v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021(December1987) (approving Mathies
criteria). In U. S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (August 1985), the
Commission provided further guidance:
We have explained that the third element of the Mathies formula "requires that the
Secretary establish a reasonable likelihood that the hazard contributed to will
result in an event in which there is an injury." US. Steel Mining Co., Inc.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(l ), 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 (August 1984); US. Steel Mining Co., Inc.,
6FMSHRC1573, 1574-75 (July 1984).
This evaluation, the reasonable likelihood of injury, should be made in the context of the length
of time that the violative condition existed prior to the citation and the time it would have existed
if normal mining operations-had continued. Elk Run Coal Co., 27 FMSHRC 899, 905
(December 2005); US. Steel Mining Co., 6 FMSHRC 1573(July1984). Moreover, resolution of
whether a violation is S&S must be based "on the particular facts surrounding the violation."
Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1998); Youghiogheny & Ohio Coal Co,,
9 FMSHRC 2007(December1987).
Applying the Mathies criteria to this case, I have found a violation and that failure to
maintain a back-up alarm that is audible in the surrounding environment was reasonably likely to
result in injuries to unsuspecting pedestrians, equipment operators, and the truck operator,
himself. It is also reasonably likely that injuries resulting from an accident with such a large
instrumentality, i.e., lacerations, broken bones and trauma to the head and vital organs, would be
of a reasonably serious nature. Accordingly, I find that the violation was S&S.

3, 4. Citation Nos. 7008402 and 7008403
Inspector Silvers issued Citation No. 7008402, alleging a non-significant and substantial
violation of section 77.502, after he discovered in an underground area of the mine, a small
submersible pump (3-pronged cord) plugged into an ungrounded extension cord (2 prongs), so
that the bare ground prong was exposed on the exterior of the extension cord. 4 Tr. 329.
According to Silvers, the pump was not running at the time, and the cord extended about 50-60
4

30 C.F.R. § 77.502 requires that ''[e]lectric equipment shall be frequently examined,.
tested, and properly maintained by a qualified person to assure safe operating conditions. When
a potentially dangerous condition is found on electric equipment, such equipment shall be
removed from service until such condition is corrected. A record of such examinations shall be
kept."

29 FMSHRC 1069

feet to within two feet of another extension cord, obviously the connection for energizing the
pump. Tr. 327, 329-32: He explained that the pump was set up fot ungrounded operation,
thereby posing a shock hazard. Tr. 333, 335. The Condition or Practice section of the citation
states that:
The 11 Ovac submersible pump located at the end of the track on the slope was not
maintained to assure a safe operating condition in that the extension cord the
three prong pump cable was plugged into was an mi.grounded extension cord. The
pump was not energized and the cable supplying power to it was unplugged about
60 foot [sic] away.
Ex. G-25. Silvers testified that he found it unlikely that someone would be injured by the
condition, based on the fact that the pump was unplugged andbecause·Rothermel's surprised
reaction convinced him that the condition had existed for only a short time. Tr. 333-34. He
assessed the operator's negligence as moderate, he explained, because the pump's naked ground
prong should have been obvious when it was connected to the ungrounded extension cord.
Tr. 334-35. According t() Silvers, Rothermel immediately abated the citation by removing the
ungrounded extension cord from the mine. Tr. 337:
Rothermel expressed his opposition to the citation by testifying that the pump was not
operating and the extension cord was taken out of service as soon as Silvers identified the
problem. Tr. 456-57. I am persuaded by the positions of the cords that the pump was ready and
available for use, and that it was ungrounded when energized. Therefore, section 77.502 has
been violated, as alleged.
Silvers also issued Citation No. 7008403, alleging a non-significant and substantial
violation of section 77.502. The citation describes the violation as follows:
There was no record of a monthly electrical examination for the month of
November or December 2005.
Ex. G-29. Silvers testified that the first entry in the electrical book was January 13, 2005.
Tr. 351..:52. He explained that surface operations regulated by Part 77 are required to have
monthly inspections of their electrical installations and, therefore, he had expected to see entries
for every month that the mine had been energized. Tr. 352-54. According to Silvers, Rothermel
told him that the mine had been energized sometime in late November, that he was aware of the
requirement, but that he had simply forgotten to have a qualified electrician conduct the periodic
electrical examinations. Tr. 355. Because this was a "record" citation, Silvers found it unlikely
that an injury would result from the violation, and he assessed the operator's negligence as
moderate because Rothermel had been in the business for a long time and knew of the
requirement. Tr. 356-57. The citation was terminated by the electrical exam recorded on
January 13. Tr. 357.

29 FMSHRC 1070

Rothermel essentially stipulated at the hearing that he had committed the violation, but
emphasized that he objected to having been cited where the abatement occurred prior to issuance
of the citation. Tr. 462. Therefore, section 77 .502 was violated, as alleged.

5, 6. Citation Nos. 7008400 and 7008401
Inspector Silvers issued Citation Nos. 7008400 and 7008401, alleging non-significant and
substantial violations of section 77.516, after discovering a 3/4 inch and two 2 Yi inch unused
knockouts in the bottom of electrical disconnect boxes located on the surface. 5 Tr. 339-40, 34446. The Condition or Practice section of Citation No. 7008400 describes the violation as
follows:
Two unused openings existed in the top of the energized disconnect box marked .
Miner Disconnect. The openings were 2 Yi [inches] in ·diameter. The disconnect
was located in the trailer beside the head frame. Reference NEC 370-8.
Ex. G-27. Citation No. 7008401 describes the violation as follows:
An unused opening existed in the energized visible disconnect box mounted on a
pole beside the slope fan. The opening was on the bottom right side. The box is
marked 480 vac. Reference NEC 370-8.
Ex; G-26. Section 370-8 of the National Electric Code of 1968, as incorporated by section
77 .516, requires that openings in electrical boxes he either used or plugged. Tr. 340-41. Silvers
determined that an injury would be unlikely to occur respecting both conditions, because the
miner disconnect box with the 2 Yi inch openings at the top was at least 6 Yi feet off the ground,
and the 3/4 inch opening in the other box was too small to allow access to the electrical
components. Tr. 342, 347. He explained that his assessment of moderate negligence was based
on Rothermel' s explanation that the violations were inadvertent, but that he should have known
about them at some point in time. Tr. 342, 348. Rothermel promptly abated the citations by
plugging the unused openings. Tr. 342.
Rothermel· testified that he had purchased electric boxes from a coal company that had
gone out of business, and had assumed that they had been inspected by MSHA and were up to
code. He essentially conceded that he had violated the standard by acknowledging that there was
a problem with the boxes that was fixed probably within 15 minutes of Silvers' discovery.
Tr. 457-58, 489-90. He also conceded that the boxes may have been installed for one to two
months and that, had a qualified electrician conducted a monthly inspection, as required, the

5

30 C.F.R. § 77.516 states that "[i]n addition to the requirements of§§ 77.503 and
77.506, all wiring and electrical equipment installed after June 30, 1971, shall meet the
requirements of the National Electrical Code in effect at the time of installation."
29 FMSHRC 1071

openings would have been detected. Tr. 490-91. Accordingly, in both instances, I find that
section 77.516 was violated, as alleged.

7. Citation No. 3561179
Inspector Mehalchick issued Citation No. 3561179, alleging a non-significant and
substantial violation of section 77 .1900-1, after discovering that Respondent had not complied
with the mine's Shaft ·and Slope Sinking Plan. 6 Tr. 65, Respondent's Shaft and Slope Sinking
Plan was approved by MSHA on July 6, 2005, and required that the entry to the slope have a
maximum height and width of eight feet. Tr. 71; ex. G-4. The citation alleges the following:
The operator shall adopt and comply with the shaft or slope sinking plan for the
mine. The operator's plan calls for the slope to be a maximum of eight feet high
by eight feet wide. The slope was measured approximately 8'3" high by 13'5"
wide at the face. Men are required to work and travel in this area;
Ex. G-3. Mehalchick testified that he found that the violation was unlikely to result in an injury
because the roof control 1.ltilized in the mine appeared to be adequate. Tr.66. He explained that,
subsequently, Respondent was permitted to submit a revision of its Shaft and Slope Sinking Plan,
and the citation was terminated by MSHA's approval of the Plan. Tr. 67..,68:
Although Rothermel argued that there is no procedure in Part 77 regulatibns for revision
of shaft and slope sinking plans, Respondent's Shaft and Slope Sinking Plan includes a Roof
Control Plan that incorporates revision procedures set forth in section 75.113. See Tr. 107-109.
Furthermore, as a very experienced mine operator, it is reasonable to hold Rothermel responsible
for knowing that he should not have deviated from the mine's approved Plan without first
contacting MSHA. He stipulated that the dimensions ofthe slope at the face were ''technically"
at variance with the Plan and, therefore, a violation. Tr. 70. Accordingly, I find that section
77 .1900-1 was violated, as alleged.

8. Citation No. 3561180
Inspector Mehalchick issued Citation No. 3561180, alleging a non-significant and
substantial violation of section 77 .1914(a), based upon his observation of a non-permissible
pump located at the face. 7 The Condition or Practice is described as follows:

6

30 C.F.R. § 77.1900-1 requires that, "[u]pon approval by the Coal Mine Health and
Safety District Manager of a slope or shaft sinking plan, the operator shall adopt and comply with
such plan."
7

30 C.F .R. § 77 .1914(a) requires that "[ e]lectric equipment employed below the collar of
a slope or shaft during excavation shall be permissible and shall be maintained in a permissible
condition."
29 FMSHRC 1072

Electrical equipment employed below the collar of a slope during excavation shall
be permissible and maintained in permissible condition. The sump pump at the
face of the slope is not a permissible pump. Men are required to work and travel
in this area, Ventilation tubing extended to approximately ten feet of the face,
providing approx. 15,000 din. No methane was detected. The pump was
maintained in good condition.
Ex .. G-5. Mehalchick testified that the pump was located near the face of the slope,
approximately 150-250 feet from the surface. Tr. 75. He explained that the pump was lacking
MSHA identification indicating that the pump was permissible. Tr. 79. Mehalchick found that
the violation was unlikely to cause an injury, he explained, because although non-permissible, the
pump was maintained in good condition, there was adequate ventilation at the face and, during
the inspection, no methane was detected. Tr. 77-78. He ascribed moderate negligence to the
operator because Rothermel should have known that equipment used at the face must be
permissible. Tr. 78.
During cross-examination ofMehalchick, Rothermel acknowledged that the pump was
non-permissible. Tr. 109. It is Rothermel's contention that MSHA unfairly "singled him out,"
by issuing a letter to other underground anthracite coal operators six months after he was cited,
granting them a two-week grace period in which to switch from non-permissible to permissible
pumps. Tr. 112-13, 119-23. I am persuaded by the Secretary's argument, however, that, at the
time Respondent was cited its operations were inspected under Part 77 of the regulations, and
that the notice to which Rothermel referred pertained to slope development under other.
conditions that are regulated by Part 75. Tr. 114-118. In any case, the distinction is not pivotal,
because the mere issuance of the letter six months after the citation was issued to Respondent
establishes its irrelevance. Accordingly, I find a violation of section 77.1914(a), as alleged.

9. Citation No. 7008404
Inspector Silvers issued Citation No. 7008404, after learning that Rothermel had
performed the electrical installations and had overlooked having them examined before
energizing the mine. Tr. 359-61. The citation charged a significant and substantial violation of
section 77.501. 8 The violation is described as follows:
8

30 C.F.R. § 77.501 provides that"[n]o electrical work shall be performed on electric
distribution circuits or equipment, except by a qualified person or by a person trained to perform
electrical work and to maintain electrical equipment under the direct supervision of a qualified
person. Disconnecting devices shall be locked out and suitably tagged by persons who perform
such work, except that in cases where locking out is not possible, such devices shall be opened
and suitably tagged by such persons. Locks or tags shall be removed only by persons who
installed them or, if such persons are unavailable, by persons authorized by the operator or his
agent.
29 FMSHRC I 073

A non-qualified electrician performed electrical work and the work was not
examined and tested by a qualified electrician prior to being placed in service.
'

Ex. G-30. The citation was terminated by the electrical inspection performed by the qualified
electrician five days earlier on January 13. Tr. 368. Silvers explained that Rothermel had been
authorized to work on de-energized circuits, but only under the direction of an MSHA qualified
electrician, and that he had not been authorized to energize the system until it had been examined
and tested by a qualified electrician. Tr. 361-63, 365-66. Therefore, because of the extensive
nature of the work and the safety risks associated with low, medium and high voltage electricity,
unexamined and untested prior to energization, Silvers found it reasonably likely that a
permanently disabling injury could occur, and designated the violation significant and
substantial. Tr. 364-65. Silvers also testified that he evaluated the operator's negligence as
moderate, because he believed Rothermel' s explanation that his failure to have the installations
inspeeted prior to powering the mine had been an oversight. Tr. 368.
MSHA records indicate that Rothermel had been certified as a qualified electrician, for
both surface and underground installations, through 1999. Tr. 370-71; ex. G-31. Moreover,
Rothermel conceded the violation, but objected to the S&S designation and any likelihood of
injury, based on the quality of his work. Tr. 70. Accordingly, I find that a violation of section
77.501 has been established.
I do not find, however, that Rothermel' s performance of electrical installations was
reasonably likely to result in an injury of a serious nature. Silvers testified that Respondent's
unsupervised, then unexamined, work could have reasonably contributed to numerous safety
hazards·"... bad connections, a flash, a burn, a cable that was going through a panel that may
have been cut and would possibly ground out, that the arc itself would injure you." Tr. 366.
None of these hazardous conditions existed, however. Silvers acknowledged that "[t]he circuits
that I saw, the cable runs I saw I thought was very well, very good." Tr. 405. He also testified
that the qualified electrician had reported "no deficiencies found" in the January 13 electrical
book entry, and that he, himself, had indicated the same in his field notes. Tr. 408. Therefore, I
find that the violation was not S&S.

10. Citation No. 7008405
Inspector Silvers issued Citation No. 7008405, after discerning that Respondent's
continuous miner had not passed a permissibility inspection prior to being placed into service,
alleging a significant and substantial violation of section 77.502-2. It is clear, however, as the
Secretary points out, that the evidence conforms to the broader standard, 77 .502, which requires
that electric equipment be frequently examined, tested, and properly maintained by a qualified
person, rather than the narrower substandard, 77.502-2, which requires that those tests be

29 FMSHRC 1074

performed at least monthly. 9 Sec'y Br. at 36-37. Accordingly, this citation will be analyzed
under section 77.502. See Faith Coal Co., 19 FMSHRC 1357, 1361-62 (August 1997)
(permitting adjudication of issues actually litigated by the parties irrespective of pleading
deficiencies).
Citation No. 7008405 describes the violation as follows:
The monthly electrical examination and tests required under provision 77 .502
were not conducted for the month of December 2005.
Ex. G- 32. Silvers testified that Rothermel informed him that the continuous miner had been put
in service the last week of December, and that the permissibility inspection had been conducted
"at the breaker before it was loaded and moved to the mine site." Tr. 372-73. Silvers explained
that permissibility must be established by a qualified electrician at the site where the equipment
is to be used. Tr. 373-75, 377. He assessed the violation as reasonably likely to result in a
permanently disabling injury and, therefore, significant and substantial, primarily because
transporting the machine - -loading and off-loading the machine and cables, bouncing on the
highway- - has.the potentiar of damaging its components, including sensitive instruments like
the methane monitor, and damage to the cables could result in burn injuries. Tr. 376-79. He
explained that, in charging the operator with moderate negligence, he had taken into account that
anthracite miners are relatively inexperienced with permissible equipment, and that Rothermel
had made some effort to comply with the regulations by having the continuous miner inspected
off-site. Tr. 379~81. The citation was terminated bytheJanuary 13 electrical inspection and
calibration performed by a qualified electrician. Tr. 381.
Rothermel conceded that he had violated the standard, but disagreed with the S&S
designation. Tr. 462. Accordingly, I find that the Secretary has established a violation of section
77.502. Without evidence of any damage to the components of the continuous miner, however, I
do not find that the violation was reasonably likely to result in an injury of a serious nature.
Accordingly, I find that the violation was not S&S.
11. Citation No. 7008253

Inspector Pinchorski issued Citation No. 7008253, alleging a significant and substantial
9

30 C.F.R. § 77.502-2 provides that "[t]he examinations and tests required under the
provision of this§ 77.502 shall be conducted at least monthly."
30 C.F.R. § 77.502 provides that "[e]lectric equipment shall be frequently examined,
tested, and properly maintained by a qualified person to assure safe operating conditions. When
a potentially dangerous condition is found on electric equipment, such equipment shall be
removed from service until such condition is corrected. A record of such examinations shall be
kept."
29 FMSHRC 1075

violation of section 77 .1605(k), for Respondent's failure to provide adequate berms along
elevated roadways. 10 The Condition or Practice is described as follows:
The elevated roadways located on the mine property were not adequately bermed
on the outer bank to prevent accidental overtravel at the following locations: for a
distance of approximately 35 feet from the hoist building in a southerly direction
along the creek with a drop of approximately 40 feet; to the northeast of the mine
hoist building on the main haul road leading to the tipple area, for a distance of
approximately 20 feet with a drop off of approximately 15 feet; the main haul
road leading to the tipple area where the road crosses over the creek on both sides
for a distance of approximately 20 feet with a drop off of approximately 40 feet;
in the area of the mine settling pond on [the] south side of the pond for a distance
of approximately 40 feet with a 10 foot drop off; and on the elevated road leading
past the mine generator building for a distance of approximately 65 feet with a
drop offof approximately 65 feet.
Ex. G-12. Pinchorski testified that, in the areas cited, mine personnel and inspectors were
present, and that water company personnel drive through. Tr. 176. In his opinion, a truck or car
or loader could have a mechanical problem, or a vehicle operator could make a mistake, causing
a vehicle to travel over the roadside down to a ditch, creek or pond. Tr. 177. Pinchorski
explained that some areas were entirely without berms, while others cited were bermed with·
"little piles of dirt that were nowhere near mid-axle high." Tr. 229-34. According to Pinchorski,
the dirt piles that he observed, no more than 3-4 inches high and a few inches wide, may have
been a barrier for a bicycle, but could not have prevented a car from overtraveL Tr. 235-36, 24041. He determined that the violation was significant and substantial based on the reasonable
likelihood that serious injury, i.e., broken bones and head trauma, could result from overtravel,
and that the likelihood of occurrence becomes "more likely when the activity becomes more
prevalent at the mine." Tr. 176, 178. Pinchorski assessed the operator's negligence as moderate
because ofRothermel's years of experience in the mining industry and his familiarity with berm
requirements in mine construction. Tr. 179. Pirichorski further testified that Respondent timely
abated the citation, except for one cited area. Tr.180-81. Consequently, he issued 104(b) Order
No. 7008277, as a result of Respondent's failure to berm the roadway near the generator
building, where there is a 65-foot drop down to the lower mine property. Tr. 180-82; ex. G-13,
14. According to Pinchorski, as of the date of the hearing~ because that area remained unbermed,
the citation had not been completely abated. Tr. 180, 436.
Rothermel testified that the mud berms, initially four feet high, had settled to 1 Yi feet
high by two feet wide, with "at least 10 foot of mud between the road and what was left of the
berm." Tr. 437-38. According to him, all areas ofroadway cited were flat, except the remaining
unbermed area, and no vehicles could overtravel because they would get stuck in the mud.

10

30 C.F.R. § 77.1605(k) provides that "[b]erms or guards shall be provided on the outer
bank of elevated roadways."
29 FMSHRC 1076

Tr. 436-39, 476. He testified that he bermed the areas within two days of the citation, except that
he did not constnict berms or guardrails along the roadway elevated 30 feet above the others,
because the deep miners never use that segment for fear of rupturing the township waterline that
runs under it. Tr. 476-82. He further explained that the roadway continues off mine property for
about three miles and extends across a number of other properties. Tr. 478-79.
The Commission has held that ''the adequacy of a berm or guard under section 77. l 605(k)
is to be measured against .the standard of whether· the berm or guard is one a reasonably prudent
person familiar with all the facts, including those peculiar to the mining industry, would have
constructed to provide the protection intended by the standard." U.S. Steel Corp. 1 5 FMSHRC 3,
5 (January 1983). The Commission explained that "[t]he definition of berm in section 77.2(d)
makes clear that the standard's protective purpose is the provision of berms and, by implication,
guards that are "capable of restraining a vehicle." Id. (citing 30 C.F.R. § 77.2(d)).
By his own testimony, Rothermel conceded that the berms were inadequate due to
substantial settlement over time and that, at some point, they should have been built up. Tr. 23840. While he argued that the cited segments are only slightly sloped, he did not discredit
Pinchorski 's estimation of the drop-off distances to the ditch, pond and creek noted in the
citation. Moreover, respecting the elevated segment that has remained unbermed, Respondent
does not dispute that it is on deep mine property.
I find that the cited segments of roadway were elevated above dangerous drop-offs, that
the existing berms were incapable of restraining vehicles used at the mine, and that the segment .
near the generator building, bordered by a 65 foot drop-off, was required to be bermed also; ·
especially because it was accessible for travel. Accordingly, I find that section 77. l 605(b) was
violated, as alleged. Furthermore, because the drop-off distances from the cited areas of roadway
ranged from 10 to 65 feet, I find. it reasonably likely that serious injuries would occur in the event
of a vehicle overtraveling and, therefore, that the violation was S&S.

12. Citation No. 7008254
Inspector Pinchorski issued Citation No. 7008254, alleging a non-significant and
substantial violation of section 109(a) of the Mine Act, for Respondent's failure to identify.the
mine office with a sign. 11 The Condition or Practice is described as follows:.
There was no conspicuous sign at the mine site that designates the location of the
mine office.
Ex. G-15; tr. 169. Pinchorski testified that he assessed Respondent's negligence as moderate,
11

Section 109(a) of the Mine Act states, in part, "[a]t each coal or other mine there shall
be maintained an office with a conspicuous sign designating it as the office of such mine...."
30 U.S.C. § 819(a).
29 FMSHRC 1077

based on Rothermel's years of experience in the mining industry and his conclusion that
Rothermel knew or should have known of the requirement, based on his ownership of other
mines: Tr. 184. He also noted that the citation was timely abated. Tr. 184-85. Rothermel's
contention that there is only one building at the mine site, the hoist building, does not exempt
Respondent from posting a conspicuous sign, as required by the standard. Tr. 246-48.
Pinchorski' s testimony that he and Coleman observed that there was no sign on either the hoist
building or the mobile home trailer was not rebutted by Rothermel. Tr. 298. Accordingly, I find
that section 109(a) of the Act was violated, as alleged.
13. Citation No. 7008255
fuspector Pinchorski, upon inspecting the mobile home trailer on site, issued Citation No.
7008253, alleging a significant and substantial violation of section 77 .1104, 12 describing the
Condition or Practice as follows:
Combustible materials were allowed to accumulate where they could create a fire
hazard along the south wall of the mobile home trailer used as a change house on
mine property. These materials consisted of various types of motor and hydraulic
oils to include a container of kerosene and a kerosene torpedo type heater with
spillage of kerosene on the (carpet) floor.
Ex. G- 16. According to Pinchorski, Rothermel told him that the trailer was part of the surface
strip mine, but Pinchorski inspected it, nonetheless, because it appeared to him to be situated on
deep mine property. Tr. 169. Pinchorski observed that the kerosene heater, apparently used for
miners changing clothing, was leaking and, contrary to Rothennel's explanatfon that the moisture
was rain from the leaking roof, determined that the carpet was saturated with a combination of
strong-smelling kerosene and water. Tr. 169-70, 185. Pinchorski, a volunteer fire chieffor27
years, testified that he designated the violation significant and substantial primarily because of
the fire hazard caused by the strong fumes that could easily ignite, for example, if someone
entered the trailer with a lit cigarette. Tr. 186. Pinchorski also testified that the heater was off at
the time of inspection, but that a miner could have set the trailer on fire by turning it on. Tr. 18687. fu his opinion, serious second and third degree bums could reasonably be expected to result
from an ignition, depending upon where a person would be situated. Tr. 187. Pinchorski
ascribed moderate negligence to Respondent based on general common sense that kerosene is
flammable and should have been removed or diluted. Tr. 188-89. He also testified that
Respondent timely abated the citation by cleaning up the spillage. Tr.189.
Rothermel maintained throughout the hearing that two mines occupy the property, and
that the sole building on deep mine property is the hoist building. Tr; 440. He explained as
follows:

12

30 C.F.R § 77.1104 provides that "[c]ombustible materials, grease, lubricants, paints,
or flammable liquids shall not be allowed to accumulate where they can create a fire hazard."
29 FMSHRC 1078

''There are two mines. There's the surface mine and the deep mine .. That's where
the problem's arising here.... The surface mine overlaps the deep mine. So the
deep mine is actually just a postage stamp. The other building that was there
[mobile home trailer], if you want to call it a building, was the office for the
surface mine. The equipment for the surface mine was parked by that building.
You know, there was like a - - someone with mining knowledge would know that
a flourescent orange truck 14- foot high, 14-foot wide, 40-foot long does not
belong at the deep mine. That was part of the surface mine."
Tr. 440-41; see 250-256. Rothermel also testified credibly that he pointed out to Pinchorski the
bulletin board for the surface mine in the trailer. Tr. 258-59, 443-44.
The Secretary bears the burden of establishing that the mobile home trailer was part of the
underground mine. Her insistence on placing it on deep mine property is not substantiated by
any concrete evidence, but rather Pinchorski's conjecture that ''without a map, without an
engineer or survey marks or some kind of identification, I have to go with my gut feeling as far as
I have to do my job." Tr. 257-58. Additionally, while Rothermel acknowledged that the trailer
was formerly used as the underground mine office, that fact alone, without any proffer from the
Secretary of the mine boundaries, is insufficient to carry the Secretary's burden of establishing
that the mobile home trailer was part of the Brockton Slope mine and properly inspected by
Pinchorski. Consequently, I find that the Secretary has failed to prove a violation of section
77. 1104, as alleged, and vacate the citation.

14. Citation No. 7008256
Inspector Pinchorski issued Citation No. 7008256 for stumbling hazards that he observed
in the mobile home trailer, alleging a significant and substantial violation of section 77.205(b). 13
The Condition or Practice was described as follows:
The travelway in the mine mobile home trailer used for a change house facility is
not being kept clear of extraneous materials and other stumbling hazards. I
observed various 5 gallon cans of motor oils [sic], hose, equipment parts, and
personnel [sic] items in the travelway.
Ex. G-17. Pinchorski testified that he designated the violation significant and substantial
because, based on the.clutter that he observed, and his determination that the area was :frequently
used for storage and changing clothes, it was reasonably likely that someone could trip and fall
into any of the sharp edges and objects in the trailer, and suffer serious injury such as cuts,

13

30 C.F.R. § 77.205(b) requires that "[t]ravelways and platforms or other means of
access to areas where persons are required to travel or work, shall be kept clear of all extraneous
material and other stumbling or tripping hazards."
29 FMSHRC 1079

broken bones, and head injuries. Tr. 190-93. In his opinion, the operator was moderately
negligent based on Rothermel's experience in the mining industry and common knowledge that
travelways should be kept uncluttered and free of tripping hazards. Tr. 193-94.
Rothermel's primary defense was essentially the same as that offered regarding the
kerosene spillage in the mobile home trailer- - that the inspector did not observe any deep miners
entering the trailer because it was on surface mine property. Tr. 250-260, 446. Based on my
finding that the Secretary has failed to prove that the mobile home trailer was situated on deep
mine property, I find no violation of section 77.1104.

15. Citation No. 7008257
Inspector Pinchorski issued Citation No. 7008257, based on his observation of a haul
truck parked on mine property, alleging a significant and substantial violation of section
77.400(a). 14 The Condition or Practice is described as follows:
The Caterpillar Model 769B haul truck located on the mine property was not
provided with adequate guarding to prevent persons from coming into contact
with moving parts in that the engine cooling fan belts and pulleys were exposed.
Ex. G- 18. Pinchorski opined that the truck was probably operated atthe surface mine. Tr. 171,
195. According to Pinchorski, however, the truck was parked on underground mine property,
plugged into an engine block heater overnight to facilitate an easier start-up in the morning, and
it was not tagged out of service, but readily available for us~ at the deep mine. Tr. 195-96, 300.
Pinchorski testified that the violation was significant and substantial based on the fact that the
truck's motor oil can be checked with the engine running, so that it is reasonably likely that an
operator performing maintenance or a pre-shift examination could come in contact with the ·
exposed pulleys and belts and get caught up in the moving parts. Tr. 196-97. Pinchorski opined
that contact with the unguarded moving parts would be reasonably likely to cause serious injuries
ranging from severe lacerations to loss of hands or fingers. Tr. 197-98. He assessed the
operator's negligence as moderate because Rothermel knew or should have known that exposed
belts and pulleys must be guarded and because, as part of its outreach to the mining industry,
MSHA places great emphasis on the seriousness of guarding. Tr. 198-99. He also testified that
the citation was timely abated. Tr. 199.
Rothermel, again, argued that the truck was not on deep mine property by explaining that
"[t]he demarcation between the surface and the underground mine is the road that traveled
through the property. Anything to the right of the road belonged to the surface mine. Anything

14

30 C.F.R. § 77.400(a) requires that "[g]ears; sprockets; chains; drive, head, tail, and
takeup pulleys; flywheels; couplings; shafts; sawblades; fan inlets; and similar exposed moving
machine parts which may be contacted by persons, and which may cause injury to persons shall
be guarded."
29 FMSHRC 1080

to the left of the road belonged to the deep mine. And it was parked to the right of the road."
Tr. 484. While he confirmed that, six months prior to being cited, the truck had been used to
haul dirt for the underground mine, he insisted, nevertheless, that it was parked on surface mine
property. Tr. 484. Based on my finding that the Secretary has failed to carry her burden of
establishing the boundaries ofthe Brockton Slope mine and, therefore, that the truck was
properly inspected as part of that mine, I find that the Secretary has failed to prove a violation of
section 77.400(a).

16. Citation No 7008258
Inspector Pinchorski issued Citation No. 700258, for failure to provide a sign warning
against smoking and open flame on a diesel fuel storage tank, alleging a non-significant and
substantial violation of section 77. 1102. 15 The Condition or Practice is described as follows:
The diesel fuel tank located in the mine generator building was not provided with
signs warning against smoking and open flames that could readily be seen by all
persons.
Ex. G- 19. Pinchorski testified that there was a sign on the 500-gallon fuel tank located in the
generator building, but that it was not readily apparent upon entering the building, because it was
located on the far end of the tank. Tr. 200-01, 264; ex. G-20. He stated that it was necessary to
look in the 12-inch space between the fuel tank and the generator in order to see the sign.
Tr. 276. The Respondent's level of negligence was moderate, he explained, because "everybody
in the mining industry knows that you have to - - gasoline, fuel tanks, and so on - - you are
required to label them as far as warning against no smoking or ... contents flammable, and so
on." Tr. 202. He also testified that the citation was timely abated. Tr. 202.
Rothermel testified that the fuel tank was brand new and manufactured with a "no
smoking" sign painted on it. Tr. 446-47. He opined that number 2 diesel fuel poses no explosion
hazard and that it is impossible to light the vapors with a cigarette. Tr. 447-49. His opinions
were unsubstantiated, however, and, in addition to warning against smoking, the standard
requires warning against exposure to open flames. Beyond the lack of explosion and ignition
argument, Rothermel simply stands on the fact that the manufacturer provided a sign at the end
of the fuel tank, even though he did not attempt to argue that it was readily visible. Accordingly,
I find that section 77 .1102 was violated, as alleged.

17. Citation No 7008259
Inspector Pinchorski issued Citation No. 7008259, alleging a significant and substantial
violation of section 77.205(b), for failure to maintain the travelway in the generator building free

15

30 C.F.R. § 1102 requires that "[s]igns warning against smoking and open flames shall
be posted so they can readily be seen in areas or places where fire or explosion hazards exist."
29 FMSHRC 1081

of stumbling hazards. 16 The Condition or Practice is described as follows:
The travelway leading from the entrance of [the] mine generator building past the
fuel tank to the front of the generator was not clear of stumbling hazards in that
the 8 inch I-beams were positioned on end approximately 2 feet apart from each ·
other for a distance of approximately 8 feet. This is the only entrance to the
generator for persons to check and provide maintenance which is performed at
least two times per day to start and stop the generator.
Ex. G-21. Pinchorski described the generator building as a series of enclosed I-beam frames with
the base rails rising approximately eight inches above the concrete floor, and a fuel tank and
generator welded to the I-beams. Tr. 203-05, 277; see 278-89; ex; G-22. He explained that
travel from the entrance to the front of the generator required stepping over each I-beam, and that
eventually someone was going to fall; were they to fall onto the concrete, or into the generator,
fuel tank or I-beams, injuries could occur. Tr. 203-04. He assessed the violation as significant
and substantial because the area was traveled daily to check the generator and oil, and to start and
stop the generator, and it was reasonably likely that a miner could stumble and fall, sustaining
broken bones, a concussfon, lacerations, or burns. Tr. 205-06. He ascribed moderate negligence
to the operator, based on the owners' extensive mining experience and because they could have
done a better job of preventing the condition. Tr. 207. Respondent abated the citation in good
faith by installing a flat walking surface of boards over the I-beams. Tr. 207.
··Rothermel' s argument that miners are accustomed to walking on I-beams may be true, but
does not allow for any missteps or moments ofinattentiveness that are bound to occur from time
to time. See Tr. 280-81, 287-88.
It is evident that the raised I-beams presented a stumbling hazard that could reasonably be
expected to result in injuries of a serious nature. Therefore, I find a violation Of section
77.205(b), as alleged, and that the violation was S&S.

18. Citation No. 7008260
Inspector Pinchorski issued Citation No. 7008260, alleging a significant and substantial
violation of section 77.412(a). 17 The Condition or Practice is described as follows:
The compressed air receiver tank located adjacent to the mine tipple is not

16

30 C.F .R § 205(b) requires that "[t]ravelways and platforms or other means of access to
areas where persons are required to travel or work, shall be kept clear of all extraneous material
and other stumbling or slipping hazards."
·

17

30 C.F.R. § 77.412(a) requires that "[c]ompressors and compressed-air receivers shall
be equipped with automatic pressure-relief valves, pressure gauges, and drain valves."
29 FMSHRC 1082

equipped with an automatic pressure relief yalve and a pressure recording gauge.
Ex. G-23. Pinchorski testified that the air compressor was equipped with a pressure-relief valve
and gauge, but that the compressed-air receiver tank was not. Tr. 208-09. He explained that the
gauge indicates the amount of air pressure in the system, and that the pressure-relief valve is a
safety mechanism to prevent an explosion. Tr. 210. ht his opinion, the importance of having a
gauge and valve on both pieces of equipment is that the mechanisms on the one act as a check
against failure of the mechanisms on the other. Tr. 291. The gravity of the violation was
assessed as significant and substantial because, according to Pinchorski, without a safety device
to check the continuation of air pumped from the compressor, an explosion is reasonably likely
to occur. Tr. 209-12. He further testified that "you could have shrapnel like a hand grenade or
something. I mean, air lines have busted before, and they'll bust at the weakest point. And if it
would happen to burst ... next to where somebody might be working ... you could have pieces
of aluminum coupling flying." Tr. 211. The Respondent was charged with moderate negligence
because, he reasoned, mines that have an air compressor usually have an air receiver tank with a
''pop off' valve (lnd gauge either underground or on the surface, and the operator knew or should
have known that the safety devices were required. Tr. 213-14. Pinchorski also noted that the
citation was timely abated. Tr. 214.
Rothermel testified that the air receiver tank had been installed at the end of the previous
day, that the installation was incomplete at the time of inspection, and that the valve and gauge
were 30 miles away at the preparation plant. Tr. 452-53. According to him, the compressor
started leaking oil into the compressed air line, and the compressor was not run for a week or two
thereafter, until the appropriate replacement parts arrived. Tr. 453-54. His own rendition of the
facts, then, establishes that the compressor and air i:eceiver tank had been running the prior day
until the oil leak occurred, without the proper safety mechanisms on the tank, and the system
could have been energized at anytime thereafter. Therefore, I find a violation of section
77.412(a) and that there was a reasonable likelihood that, should the safety mechanisms installed
on the compressor fail to detect a hazardous concentration of air, an explosion could have
occurred that could seriously injure a miner. Accordingly, I find that the violation was S&S.

19. Citation No. 3082100
fuspector Mehalchick issued Citation No. 3092100 during his investigation of the roof
and rib fall at the face of the Brockton Slope mine, alleging a non-significant and substantial
violation of section 50.10, after concluding that Respondent had failed to report the accident. 18
The Condition or Practice reads as follows:

18

30 C.F.R. § 50.10 requires that "[i]f an accident occurs, an operator shall immediately
contact the MSHA District Office having jurisdiction over its mine. If an operator cannot contact
the appropriate MSHA District Office, it shall immediately contact the MSHA Headquarters
Office in Arlington, Virginia by telephone, at (800) 746-1553."
29 FMSHRC 1083

If an accident occurs, the operator shall innnediately contact the MSHA district
office having jurisdiction over the mine. If the operator cannot contact the district
office, it shall immediately contact the MSHA headquarters office in Arlington,
Virginia. An accident occurred at the operation on or about 04/06/06 when an
unplanned roof/rib fall occurred in active workings that impaired ventilation and
impeded passage. The operator failed to contact MSHA of this event.

Ex- G-8. At the time of the investigation,·the operator was required to contactMSHA within 30
minutes of the accident. Tr. 99. Mehalchick estimated the fall to have occurred on or before
February 6at11 :30 a.m., and noted that MHSA was not properly notified until February 7 at
9:30 a.m. whenthe inspectors were on-site. Tr.86-87; ex. G-6.
Rothermel testified that the roof of the slope "squeezed" over the course of a month,
rather than fell, that the miners reported to work on Monday morning, observed the result of the
squeeze, and met Tom Garcia when they came up to the surface. Tr. 431-32; see 130-33.
Rothermel admits thatthe accident was never called in to District 1 but, according to him, that
should not have been necessary because the inspector was at the mine. Tr. 432. This testimony
is wholly unconvincing, because it is rebutted by the credible testimony of Mehalchick that the
accident investigation was initiated by information about the fall brought to Garcia's attention the
day before. Nevertheless, the standard requires that Respondenttimely contact the District
Office directly, and it failed to do so on the day of occurrence within the time permitted.
Accordingly~ I find a violation of section 50.10, as alleged.
Mehalchick did not explain the basis for ascribing high negligence to the operator for
failing to timely notify the MSHA District Office. In support of the inspector's assessment, the
Secretary notes that Respondent challenged a violation of the same standard five years ago. See
Summit Anthracite, Inc., 24 FMSHRC 720, 735-36 (ALJ) (finding no violation of section 50.10
where the Secretary failed to prove that Summit had exceeded the time limit required for
contacting MSHA). Therefore, it is evident that Respondent knew or should have known of its
responsibility in· contacting District 1. I do not find any aggravating factors, however, that would
elevate the operator's actions beyond ordinary negligence, and conclude that the violation was
due to moderate negligence.

IV. Penalty
A. 110(c) Criteria

While the Secretary has proposed a total civil penalty of $1,569.00, the judge must
independently determine the appropriate assessment by proper consideration of the six penalty
criteria set forth in section 1 lO(i) of the Act, 30 U.S.C. § 820(j). See Sellersburg Stone Co.,
5 FMSHRC 287, 291-92 (March 1993), aff'd, 763 F.2d 1147 (7th Cir. 1984).
Applying the penalty criteria, I find that Summit is a small operator and, as a new mine in
29 FMSHRC 1084

the midst of starting production, its history of assessed violations is minimal. See Pet. for
Assessment of Civil Penalty, ex. A (MSHA Form l 000-179). As stipulated by the parties, the
total proposed penalty will not affect Respondent's ability to continue in busj.ness. Tr. 13, stip. 6.
I also find that, with the exception of two citations (7008242 and 7008253), Summit
demonstrated good faith in achieving rapid compliance, after notice of the violations.
The remaining criteria involve consideration of the gravity of the violations and Summit's
negligence in committing them. These factors have been discussed fully respecting each citation.
Therefore, considering my findings as to the six penalty criteria and, considering that Summit has
not established any conduct that could be viewed as mitigating factors, the penalties are set forth
below.

B. Assessment
1. Citation No. 7008242
The Secretary has established a non-significant and substantial violation of 30 C.F .R. § 50.30(a)~
that it was due to Summit's moderate negligence, and that Summit failed to timely abate the
citation. Applying the civil penalty criteria, I find that a penalty of $109.00, as proposed by the
Secretary, is appropriate.
2. Citation No. 7008148
The Secretary has established a violation of 30 C.F.R. § 77.410(a), that it was significant and
substantial, due to Summit's moderate negligence, and that the citation was timely abated.
Applying the civil penalty criteria, I find that a penalty of $91.00, as proposed by the Secretary, is
appropriate.
3. Citation No. 7008402
The Secretary has established a non-significant and substantial violation of 30 C.F .R. § 77.502,
that it was due to Summit's moderate negligence, and that Summit timely abated the citation.
Applying the civil penalty criteria, I find that a single penalty assessment of $60.00, as proposed
by the Secretary, is appropriate.
4. Citation No. 7008403
The Secretary has established a non-significant and substantial violation of 30 C.F .R. § 77 .502,
that it was due to Summit's moderate negligence, and that the citation was timely abated.
Applying the six civil penalty criteria, I find that a single penalty assessment of $60.00, as
proposed by the Secretary, is appropriate.
5, 6. Citation Nos. 7008400 and 7008401
The Secretary has established non-significant and substantial violations of 30 C.F .R. § ·77.516,
that they were due to Summit's moderate negligence, and that Summit timely abated the
citations. Applying the civil penalty criteria, I find that a single penalty assessment of$60.00 for
each violation, as proposed by the Secretary, is appropriate.
29 FMSHRC 1085

7. Citation No. 3561179
The Secretary has established a non-significant and substantial violation of 30 C.F .R.
§ 77 .1900-1, that it was due to Summit's moderate negligence, and that Summit timely abated
the citation. Applying the civil penalty criteria, I find that a single penalty assessment of$60.00,
as proposed by the Secretary, is appropriate.
8. Citation No. 3561180
The Secretary has established a non-significant and substantial violation of 30 C.F .R.
§ 77.1914(a), that it was due to Suinmit's moderate negligence, and that Summit timely abated
the citation. Applying the civil penalty criteria, I find that a single penalty assessment of$60.00,
as proposed by the Secretary, is appropriate.

9. Citation No 7008404
The Secretary has established a non-significant and substantial violation of 30 C.F .R. § 77.501,
that it was due to Summit's moderate negligence, and that the citation was timely abated.
Applying the civil penalty criteria, I find that a penalty of $60.00 is appropriate.

10. Citation No. 7008405
The Secretary has established a non-significant and substantial violation of30 C.F.R. § 77.502,
that it was due to Sumniit's moderate negligence, and that the citation was timely abated.
Applying the civil penalty criteria, I find that a penalty of $60.00 is appropriate.
11. Citation No. 7008253
The Secretary has established a violation of 30 C.F.R. § 77.1605(k), that it was significant and
substantial, due to Summit's moderate negligence, and that Swnmit timely abated the citation,
except for a portion of roadway for which it refuses to construct berms. In fact, as of the date of
this proceeding, Summit had refused to correct the condition. I have taken note of Summit's
justification for its failure to act and, while the legitimacy of the argument has not been proven
by the operator, I find that it is acting on a good faith belief. For that reason, and also because I
credit Summit's testimony that the miners do not use the segment of road in question, I decline to
raise the penalty and, applying the civil penalty criteria, find that a penalty of $221.00, as
proposed by the Secretary, is appropriate.
12. Citation No. 7008254
The Secretary has established a non-significant and substantial violation of30 U.S.C. § 819(a),
that it was due to Summit's moderate negligence, and that Summit timely abated the citation.
Applying the civil penalty criteria, I find that a single penalty assessment of $60.00, as proposed
by the Secretary, is appropriate.
13. Citation No. 7008255
The Secretary has failed to establish a violation of 30 C.F .R. § 77 .1104 and, therefore, the
29 FMSHRC 1086

citation shall be vacated and no penalty shall be assessed.

14. Citation No. 7008256
The Secretary has failed to establish a violation of 30 C.F .R. § 77 .205(b) and, therefore, the
citation shall be vacated and no penalty shall be assessed.
15. Citation No. 7008257
The Secretary has failed to establish a violation of30 C.F.R. § 77.400(a) and, therefore, the
citation shall be vacated and no penalty shall be assessed.

16. Citation No. 7008258
The Secretary has established a non-significant and substantial violation of 30 C.F.R. § 77 .1102,
that it was due to Summit's moderate negligence, and that Summit timely abated the citation.
Applying the civil penalty criteria, I find that a single penalty assessment of $60.00, as proposed
by the Secretary, is appropriate.
17. Citation No. 7008259
The Secretary has established a violation of 30 C.F.R. § 77.205(b), that the violation was
significant and substantial, due to Summit's moderate negligence, and that Summit timely abated
the citation. Applying the civil penalty criteria, I find that a penalty of$72.00, as proposed by the
Secretary, is appropriate.
18. Citation No. 7008260
The Secretary has established a violation of30 C.F.R. § 77.412(a), that it was significant and
substantial, due to Summit's moderate negligence, and that Summit timely abated the citation.
Applying the civil penalty criteria, I find that a penalty of $72.00, as proposed by the Secretary, is
appropriate.

19. Citation No. 3082100
The Secretary has established anon-significant and substantial violation of30 C.F.R. § 50.10.
Contrary to her charge that the violation was due to high negligence, however, I find that
Summit's negligence was no more than moderate. Applying the civil penalty criteria, I find that
a single penalty assessment of$60.00, as proposed by the Secretary, is appropriate.

ORDER
Accordingly, it is ORDERED that Citation Nos. 7008255, 7008256 and 7008257 are
VACATED, that the Secretary MODIFY Citation Nos. 7008404 and 7008405 to reduce the
level of gravity to "non-significant and substantial," and Citation No. 3082100 to reduce the level
of negligence to "moderate," that Citation Nos. 7008242, 7008148, 7008402, 7008403, 7008400,
7008401, 3561179, 3561180, 7008253, 7008254, 7008258, 7008259 and 7008260 are
AFFIRMED, as issued, and that Summit Anthracite, Incorporated, PAY a civil penalty of
29 FMSHRC 1087

$1,225. 00, within 30 days of this Decision.

/1 "~~t.M1c1-

c--11:.ct1J.~eline R. Bulluck

Administrative Law Judge
Distribution: (Certified Mail)
Lynne Bowman Dunbar, Esq., U.S. Department of Labor, Office of the Solicitor, Division of
Mine Safety and Health, 1100 Wilson Boulevard, Arlington, VA 22209-2296
Michael Rothermel, Summit Anthracite, Inc., 196 Vista Road, Klingerstown, PA 17941

29 FMSHRC 1088

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W ., Suite 9500
Washington, D.C. 20001

November 26, 2007

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

CIVIL PENALTY PROCEEDING
Docket No. SE 2007-194
A.C. No. 01-00851-109935

v.
OAK GROVE RESOURCES, LLC,
Respondent

Oak Grove Mine

DECISION
Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, on behalf of the Petitioner;
Robert H. Beatty, Jr., Esq., Dinsmore & Shohl, LLP, Morgantown, West
Virginia, on behalf of the Respondent.
Before:

Judge Melick

This case is before me upon a petition for civil penalty filed by the Secretary of Labor
pursuant to section IOS(d)ofthe Federal Mine Safety and Health Act of 1977, 30 U~S.C. § 801 et
seq., the "Act,'' charging Oak Grove Resources, LLC (Oak Grove) with two violations of the
mandatory standards and proposing civil penalties for the violations. The general issue before me
is whether Oak Grove violated the cited standards and, if so, what is the appropriate civil penalty to
be assessed in accordance with section 11 O(i) of the Act. Additional specific issues are addressed
as noted.
Citation No. 7691351

This citation alleges a "significant and substantial" violation of the standard at 30 C.F.R. §
75.503 and charges as follows:
The battery powered 602 scoop, company nillnber 69, located on the 10 East section
(MMU0280) was not being maintained permissible. There is a[ sic] opening in excess of .005
inch between the lid and electrical box (plane flange) off operator side. This mine liberates
over 6,000,000 cubit [sic] feet of methane gas in a 24 hour period. This scoop is operated
inby the last open crosscut in the faces. The mine operator removed the scoop from service
immediately.

29 FMSHRC 1089

The cited standard requires that "[t]he operator of each coal mine shall maintain in
permissible condition all electric face equipment required by §§ 75.500, 75.501, 75.504 to be
permissible which is taken into or used inby the last open crosscut of any such mine."
It is undisputed that the cited scoop was electric face equipment required to be permissible
under the cited standard and that the cited opening was in excess of that permitted. fudeed, Oak
Grove does not dispute the violation as alleged but contests only the Secretary's gravity, "significant
and substantial" and negligence findings. The issues are therefore accordingly limited.

Danny Lee Crumpton has been an inspector for the Department of Labor's Mine Safety and
Health Administration (MSHA) for five years. He holds an MSHA electrical certification and has
13 years industry experience as an underground coal miner including work as an electrician and
supervisor. According to the credible expert findings of Inspector Crumpton, the gap in excess of
.005 of an inch between the lid and the electrical box of the cited 602 battery powered scoop would
permit methane to enter the electrical box and, should the methane be within the explosive range of
5 to 15%, it could or would be ignited by the electrical contact points when power on the scoop
would be engaged and could also ignite methane within that range outside the electrical box.
According to the undisputed testimony of Inspector Crumpton, the cited scoop operates in
face areas where methane is liberated. The mine is also on a "section 103(i)" spot inspection
regimen as a "gassy mine" because it liberates more than 1,000,000 cubic feet of methane within a
24-hour period and, indeed, liberates over 6,000,000 cubic feet of methane in a 24-hour period.
While it is also undisputed that no more than .2% methane was detected in any part of the mine
tested on the day of the inspection, methane levels are unpredictable and can rise to explosive levels
at any time. This is corroborated by the fact that the subject mine has, in the past, had methane
ignitions and. is, indeed, rated as a "gassy mine". Clearly, should methane in the mine atmosphere
ignite or explode, reasonably serious injuries and fatalities are reasonably likely to occur.
I find under the circumstances that the admitted violation was "significant and substantial"
and of high gravity. A violation is properly designated as "significant and substantial" if, based on
the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature. Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). mMathies Coal Co., 6 FMSHRC 1, 3-4
(January 1984), the Commission explained:
In order to establish that a violation of a mandatory standard is significant and substantial
under National Gypsum 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 injury in
question will be of a reasonably serious nature.

See also Austin Power Co. v. Secretary, 861F.2d99, 103-04 (5th Cir. 1988), aff'g
9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).
29 FMSHRC 1090

The third element of the Mathies formula requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in which there is an injury. U.S. Steel
Mining Co., 6 FMSHRC 1834, 1836 (August 1984), and also that the likelihood of injury be
evaluated in terms of continued normalmining operations. U.S. SteelMining Co., Inc., 6 FMSHRC
1573, 1574(July1984); See also Halfway, Inc., 8 FMSHRC 8, 12(January1986) and Southern Ohio
Coal Co., 13 FMSHRC 912, 916-917 (June 1991).
Within the above· framework of law and evidence, l have no difficulty finding that the
violation at bar was "significant and substantial" and of high gravity. fu reaching these conclusions,
I have not disregarded the arguments in Respondent's briefbased primarily on the testimony of Oak
Grove's safety supervisor Larry Pasquale, who is not an electrician, that there was only a remote
chance ofan explosion and that, while it could occur, so long as the ventilation is maintained, there
would not be a problem. Pasquale testified that he did not see any ventilation problems that day.
While Mr. Pasquale was no doubt sincere in his beliefs, I cannot give his testimony
significant weight. He did not sufficiently consider that, in evaluating the "significant and
substantial" criteria, continutng mining operations must be taken into account. I also attribute the
greater weight to the opinions of the witness with the greater expertise established on the record i.e.
fuspector Crumpton. 1
I also find that the Secretary has met her burden of proving that the violation was the result
of Oak Grove's moderate negligence. The evidence is undisputed that the lid on the electrical box
was placed over dirt and grit thereby causing the cited gap. According to the inspector's undisputed
testimony, the electrician who replaced the lid was also responsible for performing a permissibility
test after reinstalling it. Requiring a rank-and-file miner to perform such an electrical examination
makes that miner an agent of the operator for that limited· purpose. Secretary v. Mettiki Coal
Corporation 13 FMSHRC 760, 772(May1991); Rochester & Pittsburgh Coal Co., 13 FMSHRC
189 (February 1991). The fact that a "section103(g)" complaint made nine days before the
inspection herein included a specific complaint that Oak Grove was operating electrical equipment
in a non-permissible condition in the 10 East Section also reflects, in itself, at least a moderate
degree of negligence in the maintenance of its electrical equipment.
Citation No. 7691352

The instant citation alleges a "significant and substantial" violation of the standard at 30
C.F.R. § 75.604(b) and charges as follows:

1

Texas GulfInc., 10 FMSHRC 498 (April 1988), cited by Respondent, is also inapposite.
The mine therein, unlike the Oak Grove mine at issue, had no history of methane ignitions or
ignitable levels of methane and was not under a "section 103(i)" inspection regimen for gassy
mines.

29 FMSHRC 1091

A permanent splice in the trailing cable (2 A WG) 480 VAC on the Shuttle Car company
number 19 located on the 10 East section (MMU-0280) was not effectively insulated and
sealed to exclude moisture. The splice was deteriorated to the point where the insulation has
broken apart and rolled back exposing the phase leads. This conditioncreates an electrical
shock hazard of 480 VAC to the miners on this section. The mine operator immediately
removed the shuttle car from service.
The cited standard provides in relevant part that "[w]hen permanent splices in trailing cables
are made, they shall be... effectively insulated and sealed so as to exclude moisture .... "
Oak Grove does not dispute the instant violation and contests only the Secretary's gravity,
"significant and substantial" and negligence findings. Inspector Crumpton found that the violation
was "significant and substantial" on the basis of his alleged observation of exposed bare copper
wiring in the phase leads in the cited trailing cable. The inspector's conclusion that the violation was
"significant and substantial" was based upon his testimony that miners handling the energized
trailing cable could come into contact with the bare copper wiring suffering burns and even
electrocution. I find significant however that the inspector did not allege, in charging the violation,
that the bare copper wiring was exposed and did not, in his contemporaneous notes, indicate such
exposure. Oak Grove's safety supervisor, Larry Pasquale, who accompanied the inspector and was
present to observe the cited condition testified that he was sure that no bare copper wires were
exposed on the cited trailing cable. I am therefore constrained to conclude, in light of this conflicting
evidence, that the Secretary has not sustained her burden of proving .that the violation was
"significant and substantial" or of high gravity.
The Secretary also alleges that the violation was the result of"moderate negligence" based
on the inspector's opinion that the condition had existed for two hours or more. The inspector
reached this conclusion based only on his observation that the splice was worn. In light of the
lessened gravity finding and the fact that the Secretary has failed to establish that an agent of the
operator knew or even should have known of the violative condition, I do not find that the Secretary
has met her burden of proving anything greater than low negligence.

Civil Penalties
Under Section 11 O(i) of the Act the Commission and its judges must consider the following
factors in assessing a civil penalty: the history of violations, the negligence of the operator in
committing the violation, the size of the operator, the gravity of the violation, whether the violation
was abated in good faith and whether the penalties would affect the operator's ability to continue in
business. The record shows that the Oak Grove mine is a large mine and has a significant history
of violations. The record indicates that the violative conditions charged herein were abated in a
timely manner. There is no evidence that the penalties imposed herein would affect the operator's
ability to continue in business. The gravity and negligence findings have previously been discussed.
Under the circumstances, I find that penalties of $1,096.00 for Citation No. 7691351 and $250.00
for Citation No. 7691352 are appropriate.

29 FMSHRC 1092

ORDER
Citation No. 7691351 is affirmed and Citation No. 7691352 affirmed but without "significant and
substantial" findings. O~ Grove Resources, LLC, is hereby directed to pay civil penalties of
$1,096.00 and $250.00 respectively for the violations charged therein within 40 days of the date of
this decision.
·

i."

\ ·.__,··

Gary Mel ck

Adminisn\ative Law Ju e
(202) 434-'1977
Distribution: (Certified Mail)
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219
Robert H. Beatty, Jr., Esq., Dinsmore & Shohl, LLP, 215 Don Knotts Blvd. Ste. 310, Morgantown,
WV 26501
/lh

29 FMSHRC 1093

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W. Suite 9500
Washington, DC 20001-2021

December 14, 2007
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION,
Petitioner,

DOCKET NO. PENN 2007-4
A.C. No. 36-08766-098223

v.
HAZLETON SHAFT CORPORATION,
Respondent.

Mine: Hazelton Shaft

DECISION
Before:

Judge Hodgdon

This case is before me on a Petition for Assessment of Civil Penalty brought by the
Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA), against
Hazleton Shaft Corporation, pursuant to section 105 of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 815. The petition alleges a single violation of the Secretary's mandatory
health and safety standards and seeks a penalty of$60.00. The parties stipulated to the facts in
the case, filed briefs and requested a decision on the stipulated record. For the reasons set forth
below, I vacate the citation.

Backeround.
The following are the stipulated facts in narrative format. The Hazleton Shaft is an
underground, anthracite, coal mine, owned and operated by the Hazleton Shaft Corporation. It is
located near Hazleton, Pennsylvania.
On August 10, 2006, an MSHA inspector was inspecting the preparation plant at the
mine. He observed a Dewalt four inch grinder on a work bench on the second floor of the plant.
The grinder was equipped with a pressure sensitive trigger requiring constant finger pressure to
operate it. It also had a trigger lock that when engaged allowed the grinder to operate without
constant finger pressure. The grinder was manufactured with both the pressure sensitive switch
and the trigger lock, and both were functional. The grinder was not tagged-out of service or
otherwise marked to indicate that it should not be used.

29 FMSHRC 1094

As a result of this observation, the inspector issued Citation No. 7009131, alleging a
violation ofsection 77.402 of the Secretary's rules, 30 C.F.R. § 77.402. 1 The citation alleged
that:
A Dewalt four inch hand grinder, located on the work
bench outside the MCC room, on the second floor, was found to
have a lockable trigger. The repairmen were picking up tools and
finishing repairs. It was obvious the grinder had been used during
the shift. The foreman and miners stated they did not know it was
a violation to use a trigger lock.
The operator contested the citation.

Findin&s of Fact and Conclusions of Law
It is the position of the Secretary that "by requiring that hand held power tools be
operated through constant hand or finger pressure" section 77.402 prohibits trigger locking
devices like the one in this case. (Sec. Br. at 2.) The Respondent asserts that the "regulation is
silent on whether the tool can or cannot be equipped with a trigger lock." (Resp. Br. at 3.) I find
that the operator did not violate the rule in this instance.
In applying this regulation in connection with the facts in this case, it is important to
keep in mind that the grinder was not observed in use by the inspector. It was merely lying on a
work bench as described. Consequently, this decision will decide only whether a hand-held
power tool that is equipped with controls requiring constant hand or finger pressure to operate it
and also equipped with a trigger lock, violates section 77.402. No opinion concerning whether
the rule would be violated it the grinder had been observed in operation with the trigger lock
engaged will be rendered.
Clearly, the grinder complies with the plain meaning of this rule. It is equipped with a
trigger requiring constant hand or finger pressure to operate it. There is nothing in the rule to
indicate that it cannot also be equipped with a trigger locking device. The rule is plain and
unambiguous, and the Respondent has not violated it in this case.
Notwithstanding that the rule is plain and unambiguous, the Secretary suggests that there
are Commission cases establishing that a trigger locking device, like the one on this grinder, is
prohibited by the rule. There are several problems with this argument. The first problem is that
all of the cases are decisions issued by Commission judges, which do not have any precedential
value. 29 C.F.R. § 2700.69(d). The second, and more significant, problem is that it is not
apparent from any of the cases that the argument was made that a hand-held power tool equipped

1

Section 77.402 provides, in pertinent part, that: "Hand-held power tools shall be
equipped with controls requiring constant hand or finger pressure to operate the tools ...."
29 FMSHRC I 095

with both a pressure sensitive trigger and a trigger lock complies with the rule. Certainly if such
an argument was made, there is no discussion of it in any of the cases. Justis Supply & Machine.
Shop, 22 FMSHRC 544, 550-51(Apr.2000) (ALJ); Faith Coal Co., 17 FMSHRC 1146, 1171-72
(Jul. 1995) (ALJ); Mettiki Coal Corp., 4 FMSHRC 1635, 1642 (Sep. 1982) (ALJ); Pittsburgh &
Midway Mining Co., 2 FMSHRC 311, 317, 326 (Feb. 1980) (ALJ).
It is somewhat surprising that the Secretary is arguing that trigger locks are prohibited,
even if not being used; in view of her statements when adopting a similar rule for metal and
nonmetal mines. When section 77.402 was first adopted in 1971, there was no discussion of the
rule at all. Mandatory Safety Standards, Surface Coal Mines and Surface Work Areas of
Underground Coal Mines, 36 Fed. Reg. 9364 (May 22, 1971). However, when announcing the
final rules for metal and nonmetal in 1988 there was considerable discussion. Like section
77.402, the new rule was entitled "Hand-held power tools" and provided that: "(a) Power drills,
disc sanders, grinders and circular and chain saws, when: used in the hand-held mode shall be
operated with controls which require constant hand or finger pressure. (b) Circular saws and
chain saws shall not be equipped with devices which lock-on the operating controls." 30 C.F.R.
§ 56/57.14116. The wording is somewhat different than section 77.402, but the meaning is the
same.

In explaining the new rule, MSHA stated the following:

Under the proposed rule, the standard would have
prohibited the presence, as well as the use, oflock-on devices for
each ofthese classes of power tools. : ; .c21
The final standard recognizes that many power drills,
·sanders, and grinders are manufactured with lock-on devices as a
standard feature .... Although the lock-on devices need not be
removed, the standard continues to prohibit their use when the tool
· is operated in the hand-held mode, ...
Safety Standards for Loading, Hauling, and Dumping and Machinery and Equipment at Metal
and Nonmetal Mines, 53 Fed. Reg. 32496, 32511 (Aug. 24, 1988).
The grinder in this case was manufactured with a trigger locking device. There is nothing
in section 77.402 which prohibits a trigger locking device. The grinder was not in use, so this is
not a case where it was being used with the trigger lock engaged. fu its most recent
pronouncement on this issue MSHA has stated that trigger locks need not be removed from
2

The proposed rule stated: "Hand-held power drills, disc sanders, grinders, circular saws,
and chain saws shall be equipped with operating controls requiring constant hand or finger
pressure. Such tools shall not have any lock-on devices." Safety Standards for Machinery and
Equipment at Metal and Nonmetal Mines, 49 Fed. Reg. 8375, 8383 (March 6, 1984).
29FMSHRC 1096

hand-held tools that are manufactured with them. There does not appear to be any reason why
hand-held power tools would be treated differently for metal and nonmetal mines than they are in
surface coal mines and surface areas of underground coal mines. The grinder complies with the
plain meaning of the rule. Accordingly, I conclude that the operator did not violate section
77.402.
Order

In view of the above, it is ORDERED that Citation No. 7009131 is VACATED and that
this case is DISMISSED.

~~~

Administrative Law Judge

Distribution:
Patrick M. Boylan, Conference and Litigation Representative, MSHA, U.S. Department of
Labor, The Stegmaier Building, 7 North Wilkes-Barre Boulevard, Wilkes-Barre, Pennsylvania
18702
George M. Roskos, Ill, President, Hazleton Shaft Corporation, P.O. Box 435, Hazleton,
Pennsylvania 18201
/sr

29.FMSHRC 1097

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue; N.W., Suite 9500
Washington, DC 20001

November 2, 2007
ALEX ENERGY, INC.,
Contestant

CONTEST PROCEEDINGS
Docket No. WEVA 2007-497-R
Order No. 7267047; 05/02/2007

v.

Docket No. WEVA 2007-498-R
Order No. 7267048; 05/02/2007
Docket No. WEVA 2007-499-R
Order No. 7267049; 05/02/2007

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

Docket No. WEVA 2007..:500-R
Order No. 7267051; 0510312007
Superior Surface Mine

ORDER GRANTING SECRETARY'S LEAVE TO FILE ANSWER
AND
STAY ORDER
The Contestant filed its Notices of Contest in the above captioned matters on
May 31, 2007. Commission Rule 20(f), 29 C.F.R. 2700.20(f), specifies that the Secretary shall
file an answer to a notice of contest within twenty days. The Secretary filed an Answer and
Motion to Stay on August 2, 2007. The Secretary's answer was filed thirty-eight days beyond the
twenty day filing period contained in the Commission's Rules.
Concurrently filed with its answer, the Secretary filed a Motion for Leave to File
her untimely answer as well as a Motion to Stay these contests pending the docketing of the
related civil penalty matter. The Secretary claims the untimely filing occurred as a result of
routing delays in the Secretary's mail delivery system; 1 ·

1

Also before me for consideration is the Secretary's Motion to Dismiss the contest of
Order No. 7267051 in Docket No. WEVA 2007-500-R, filed with the Commission on June 5, 2007,
because the Secretary avers that she did not receive the contestant's Notice of Contest. Obviously,
the Secretary's mail routing in these matters has been less than exemplary. Consequently, the
Secretary's Motion to Dismiss WEVA 2007-500-R is denied. However, the Secretary's response to
the Notice of Contest in WEVA 2007-500-R shall be held in abeyance pending the pertinent civil
penalty case.
29 FMSHRC 1098

On August 14, 2007, the Contestant filed an opposition to the Secretary's Motion for
Leave to File her untimely answer. The Contestant has··not shown any cognizable prejudice by
the Secretary's delay that is a prerequisite to any relief that the contestant is seeking. Sec y of
Labor on behalf ofHale v. 4-A Coal Co., 6 FMSHRC 905, 908-09; (June 1984); Secy ofLabor
on behalf ofHale v. 4-A Coal Co., 8 FMSHRC 905 (June 1986); Secy ofLabor on behalf of
Nantz v. Nally & Hamilton Enters., 16 FMSHRC 2208, 2214-15 (Nov.1994); Secy ofLabor on
behalf ofPoddey v. Tanglewood Energy, Inc., 18 FMSHRC 1315, 1325 (Aug. 1996).
Processing guidelines generally are intended to "spur the Secretary to action," rather than
to confer rights on litigants that limit the scope of the Secretary's authority. Secy ofLabor v.
Twentymile Coal Company, 411F.3d256, 261(D.C.Cir.2005). Moreover, filing periods under
the Federal Mine Safety and Health Act of 1977 are not considered jurisdictional. See, e.g.,
Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 24 (Jan. 1984), ajf'd mem., 750 F2d 1093
(D.C. Cir. 1984).
In view of the above, in the absence of a showing of identifiable prejudice, the late filing
of the Secretary's answer does not exempt the contested cited violative· conditions from Mine Act
jurisdiction. Accordingly, the Secretary's Motion for Leave to File her untimely answer
IS GRANTED. In theiriterest of judicial efficiency, the Secretary's Motion to Stay
the captioned contests pending the assignment of the related civil penalty matter
IS ALSO GRANTED.

Jerold Feldman
Administrative Law Judge
J..ll:SUlOULIOil:

Ronald Gurka, U.S. Department of Labor, 1100 Wilson Blvd, 22nd Floor West,
Arlington, VA 22209
Ramonda C. Lyons, Dinsmore & Shohl, LLP, 900 Lee Street, Suite 600, P.O. Box 11887,
Charleston, WV 25339
/rps

29 FMSHRC 1099

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LA.W JUDGES
601 NEW JERSEY AVENUE. N.W., SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9958 /FAX: 202-434-9949

VURNUN EDWURD JAXUN,
Complainant

November 21, 2007
DISCRIMINATION PROCEEDING
Docket No.

v.

WEST 2007-811-DM
RM MD 2006-06

ASARCO,LLC
San Mission Mine
Mine ID 02-00135

Respondent.

AMENDED
ORDER DENYING REQUEST FOR REASSIGNMENT
ORDER DENYING STAY OF ASSIGNMENT ORDER
__ ORDER TO FILE COMPLAINT
My November 8, 2007 order is amended as follows (amended language is in bold italics):
Jaxun's request for reassignment is DENIED, and, as Jaxun has provided no basis for a
stay, the request for stay of the Order of Assignment is also DENIED. This case will proceed
pursuant to the Mine Act and the Commission's Procedural Rules.
In addition, as Docket No. WEST 2007-811-DM is a new case before the Commission,
Jaxun is ORDERED to submit the following within 30 days of the date of this order:

1. A copy of the original complaint to the Mine
Safety and Health Administration (MSHA).
2. A copy of the return receipt (green card) from
delivery of the complaint to the mine operator.
Ifhe has not done so already, Jaxun must send the
complaint to the operator by certified mail, return
receipt requested. A note to the operator should be
enclosed indicating Jaxun's disagreement with MSHA's
determination and stating that he is requesting the
Commission's review of the case.
3. A statement of the relief sought, such as
as reinstatement, back pay, etc.

29 FMSHRC 1100

4. A copy of the letter from MSHA stating that its ·
investigation determined that a discrimination did
not occur.
Jaxun's 30-day time period begins from the date of this order rather than the date of the
November 8 order.

?~~~~~&
Chief Administrative Law Judge
Distribution:

Hugh Thatcher, Esq., Patton Boggs; LLP, 180 l Califom1a Street,·,,. Suite
4900, Denver, CO 80202
,
.

...

Vurnun Edwurd Jaxun, 5357 N. Fort Yuma Trail, Tucson, AZ. 85750-5030
/mvw

29FMSHRC 1101

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

December 14, 2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CNIL PENALTY PROCEEDING
Docket No. WEYA 2007-662
A.C. No. 46-04387-121572

v.
DANA MINING COMPANY, INC.,
Respondent

Prime No. 1 Mine

ORDER DENYING LEAVE TO INTERVENE
This case is before me under section 105(d) of the Federal Mine Safety and Health Act of
1977, as amended, 30 U.S.C. § 815(d). It concerns an alleged violation of section 75.202 of the
Secretary's rules, 30 C.F.R. § 75.202. Gena Elliot, Administratix of the Estate of John Elliot,
who was killed in a roof fall at the Respondent's mine, seeks to intervene in this civil penalty
proceeding. For the reasons set for the below, the motion for intervention is denied.
On October 29, 2007, Mrs. Elliot, filed a motion pursuant to Commission Procedural
Rule 4, 29 C.F.R. § 2700.4, to achieve party status by seeking to inter\i'ene in this proceeding. In
the motion, Mrs. Elliot argues that she has a legally protectable interest directly relating to the·
events that are the subject of any review of this citation. Both the Secretary and the Respondent
oppose the motion.
In her motion, Mrs. Elliot does not specify whether she is seeking intervention pursuant
to Rule 4(b)(l), 29 C.F.R. § 2700.4(b)(l), or Rule 4(b)(2), 29 C.F.R. § 2700.4(b)(2). However,
entitling her motion ''Notice of Intervention" and referring to herself as the "representative of an
affected miner pursuant to 29 C.F.R.' § 2700.4 "suggests that she is relying on the language of
Rule 4(b)(1 ). 1 Nonetheless, she is neither a "miner'' nor "a representative of an affected miner."
The act defines a "miner" as "any individual working in a coal or other mine." 30 U.S.C.
§ 802(g). Mrs. Elliot is not working in a coal mine and she is not representing anyone working in
a coal mine. Furthermore, the term "representative of miners" is a term of art which means
"[a]ny person or organization which represents two or more miners at a coal or other mine for the
purposes of the Act." 30 C.F.R. § 40.l(b)(l). She clearly does not come within this definition.
As a result, Mrs. Elliot may not proceed under Rule 4(b)(1 ).

1

Rule 4(b)(1) provides, in pertinent part, that: "Before a case has been assigned to a
Judge, affected miners and their representatives shall be permitted to intervene upon filing a
written notice of intervention...." ·
29 FMSHRC 1102

Rule 4(b)(2) provides that a motion for intervention by other persons shall set forth:
(A) The interest in the movant relating to the property or
events that are the subject of the proceeding;
(B) The reasons why such interest is not otherwise
adequately represented by the parties already involved in the
proceeding; and
_
. (C) A showing that intervention will not unduly delay or
prejudice the adjudication of the issues.
Although, according to her motion, Mrs. Elliot's pending civil action against Dana
Mining Company alleges a violation of federal mining regulations as an element of her claim, she
has not set forth any reasons why her interests will not be adequately represented by the parties.
The issues in this proceeding are whether the alleged violation occurred, and, if so, whether it is
properly characterized as "significant and substantial." If her interest is in having it determined
that the Respondent violated the regulation, that interest can be adequately addressed by the
Secretary, who not only has the same interest, but also has an expertise in prosecuting these cases
which Mrs. Elliot or her representative lacks. Furthermore, permitting her party status may
result in unforeseen delay or prejudice, as the victim's interest concerning resolution of an issue
may conflict with the interests of the Respondent and/or the Secretary.
Finally, Rule 4(b)(2) provides that, "[i]ntervention is not a matter of right but of the
sound discretion of the Judge." In addition to not qualifying under Rule 4(b)(1) or Rule 4(b)(2),
there is nothing
in the. legislative history of the Act, the rule or .the case law which indicates that
.
the rule contemplates the conferment. of party status on the estates of victims of accidents. Thus,
-there is no basis on which the motion can be granted.
Accordingly, the request for intervention IS DENIED ..

~~

Administrative Law Judge
(202) 434-9973

Distribution:
J. Matthew McCracken, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Blvd., 22°d Floor West, Arlington, VA 22209-2247
David J. Hardy, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd. East, P.O. Box
273, Charleston, WV 25321
Timothy C. Bailey, Esq., Bucci, Bailey & Javins, L.C., 213 Hale Street, P .0. Box3712,
Charleston, WV 25337
29 FMSHRC 1103

Federal Mine Safety & Health Review Commission
Calendar Year 2007 Index
This index of decisions and orders issued during the calendar year 2007 is divided into
two parts: decisions and orders issued by the Commission, followed by those issued by
the Administrative Law Judges (ALJ's). The listings include title, docket number, date
of issuance, and page number in the Federal Mine Safety & Health Review
Commission's Bluebook (FMSHRC), volume 29. Where the Secretary of Labor, Mine
Safety and Health Administration is a party, listings are under the name of the opposing
party.

Commission Decisions and Orders
Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 29

Aggregate Industries, NE YORK 2007-90-M
Region

09-20-07

Pg. 757

Aker Avaerner
Industrial Constructors,
Inc.

WEST 2007-394-M

05-21-07

Pg.373

Allen (employed by
Martin Marietta)

WEVA2007-284

03-23-07

Pg.160 ·

American Coal Co.

LAKE 2007-197
LAKE 2005-129
LAKE 2007-139

09-27-07
12-19-07
07-24-07

Pg. 773
Pg.941
Pg, 599 .

Atlanta Sand & Supply
Co.

SE 2007-363-M

09-13-07

Pg. 754

Austin Powder Co.

CENT 2006-128-M

11-30-07

Pg. 909

Canyon Fuel Co.

WEST 2008-168

12-26-07

1Pg:"987

1

Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 29

Cargill Deicing
Technology

CENT 2007-126-M

03-23-07

Pg. 150

Chemical Lime ,
Company of Arizona,
Inc.

WEST 2007-51-M

06-14-07

Pg.383

Chestnut Coal

PENN 2006-89-R
PENN 2006-145-R

01-22-07
01-22-07

Pg.26
Pg.30

Chevron Mining, Inc.

CENT 2008-40

12-14-07

Pg.932

Consolidated Coal Co.

VA 2007-30
WEVA 2007-733
WEVA 2007-843
WEVA 2008-82

04-09-07
10-04-07
10-04-07
12-14-07

Pg. 180
Pg. 779
Pg. 782
Pg.938

Copperstate Companies,
Inc.

SE 2007-308-M

08-10-07

Pg.610

Eastern Associated Coal
Corp.

WEVA2007-378

05-04-07

Pg.361

Elk Run Coal Co.

WEVA 2007-547

08-10-07

Pg. 613

Emerald Coal
Resources/Cumberland
Coal

PENN 2007-251-E

12-21-07

Pg.956

Empire Iron Mining
Partnership

LAKE 2006-60-RM
LAKE 2007-65-M

12-28-07
03-23-07

Pg.999
Pg. 153

Erickson (employed by
Raymond Sand &
Gravel, Inc.)

CENT 2007-209-M

06-22-07

Pg.386

Fann Contracting, Inc.

WEST 2007-283-M

04-05-07

Pg. 168

Fisher Sand & Gravel
Co.

WEST 2007-143-M

01-19-07

Pg.19

G.S. Materials, Inc.

SE 2007-469-M

10-04-07

Pg. 785

2

Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 29

George Reed, Inc.

WEST 2007-367-M

05-11-07

Pg.364

Grangeville Transit Mix,
Inc.

WEST 2007-143-M

02-01-07

Pg.62

Hanson Aggregates New
York, Inc.

YORK 2005-22-M

01-17-07

Pg.4

Highland Mining Co.

KENT 2006-189-R

01-22-07

Pg.22

Holcim (US) Inc.

SE 2007-154-M

03-23-07

Pg. 156

Hunt Martin Materials,
LLC

CENT 2008-6-M

10-31-07

Pg. 791

ICG, Eastern, LLC

WEYA 2007-240

02-12-07

Pg. 72

IGC Hazard, LLC

KENT 2007-170

08-01-07

Pg.607

Independence Coal Co.

WEYA 2007-582

08-15-07

Pg.640

James Hamilton
Construction

CENT 2007-228-M
CENT 2007-229-M
WEST 2008-111-M

12-26-07
07-12-07
12-26-07

Pg. 980.
Pg.569
Pg.984·

J axun v. Asarco, LLC

WEST 2006-416-DM

08-15-07

Pg.616

Jim Walter Resources,
Inc.

SE 2007-130

01-26-07

Pg. 53

L.G. Everist, Inc.

CENT 2008-21-M

11-13-07

Pg.899

Lanier Construction Co.

SE 2008-93-M

12-12-07

Pg.926

Major Drilling America,
Inc.

WEST 2007-450-M

07-12-07

Pg.573

Mammoth Coal Co.

WEYA 2006-759-R
WEYA 2008-78
WEYA 2008-79

01-22-07
12-26-07
12-26-07

. Pg.46
Pg.990
Pg.993

Manalapan Mining Co.

KENT 2008-65

12-14-07

Pg.935

3

Case Name

·Docket Number

Date

Page Number
FMSHRC Vol. 29

Marco Crane & Rigging
Co.

WEST 2007-363-M

05-04-07

Pg.358

Marfork Coal Co.

WEVA 2006-788-R

08-15-07

Pg.626

North American Salt Co.

CENT 2008-22-M

12-14-07

Pg.929

Oak Grove Resources,
LLC

SE 2006-107
SE 2007-279

09-27-07
. 07-30-07

Pg. 766
Pg.603

Offield Mining Co.

WEST 2007-804-M

10-04-07

Pg. 776

Parkstone

CENT 2007-273-M

09-02-07

Pg. 747

Pendley (Sec'y of Labor
on behalf of) v. Highland
Mining Co.

KENT 2006-506-D

04-03-07

Pg. 164

Performance Coal Co.

WEVA 2007-460
WEVA 2007-470

07-13-07
07-13-07

Pg.576
Pg.579

Pinnacle Mining Co.

WEVA2007-201

01-26-07

Pg.56

Premier Elkhorn Coal
Co.

· KENT 2007-186
KENT 2007-187
KENT 2007-266

04-05-07
04-05-07
05-22-07

Pg. 171
Pg. 174
Pg.377

Presely, Benny

WEVA 2008-246

12-26-07

Pg.996

Progress Coal

WEVA 2007-835

10-11-07

Pg. 788

Rex Coal Co.

KENT 2006-473

05-02-07

Pg.355

Rinker Materials
Western, Inc.

WEST 2007-819-M

09-26-07

Pg. 763

Rockhouse Energy
Mining Co.

KENT 2007-280

05,.31-07

Pg.380

Rogers Group, Inc.

KENT 2007-47-M

04-19-07

Pg. 183

San Juan Coal Co.

CENT 2004-212

03-19-07

Pg. 125

4

Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 29

Shabrach (employed by
D.M. Stolzfus & Sons)

YORK 2008-13-M

11-13-07

Pg.902

Sherman Equipment Co.

LAKE 2007-161-M

09-26-07

Pg. 760

Smithville Sand &
Gravel

CENT 2007-120-M

03-23-07

Pg. 147

Spartan Mining Co.

WEVA 2006-527-R
WEVA 2006-540.,.R
WEVA 2006-556-R
WEVA 2007-663

01-22-07
01-22-07
01-22-07
09-27-07

Pg.38
Pg.34
Pg .. 42

State of Alaska Dept. Of
Transportation & Public
Facilities

WEST 2007-512-M

06-11-07

Pg.389

TK Construction LLC

WEST 2008-62

11-14-07

Pg.906

Tri-State Stone &
Building Supply, Inc.

YORK 2007-53-M

05-18-07

Pg.370

U.S. Silica Co.

PENN 2007-230-M

05-18-07

Pg.367

UMWA, Local 1248 v.
Maple Creek Mining

PENN 2002-23-C

01-05-07
07-13-07

Pg. 1
Pg.583

United Taconite, LLC

LAKE 2007-32-M

01-26-07

Pg.50

Vulcan Materials Co.

KENT 2007-399-M

09-13-07

Pg. 751

Wolf Run Mining Co.

WEVA2007-238
WEVA 2007-239

02-12-07
01-12-07

Pg.66
Pg. 69

5

Pg~·769

Federal Mine Safety & Health Review Commission
2007 Index
ALJ Decisions and Orders
Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 29

Alex Energy, Inc.

WEVA 2007-497-R

11-02-07

Pg. 1098

American Coal Co.

LAKE 2005-105-R

03-14-07

Pg.252

Aracoma Coal Co.

WEVA 2007-2~R

01-04-07

Pg. 75

Asphalt Paving Supply,
Inc.

WEST 2006-577-M

06-'28-07

Pg.562

Austin Powder Co.

CENT 2006-128-M

03-23-07

Pg.274

Bell County Coal Corp.

KENT 2004-317-R

06-18-07

Pg.506

Bowles (employed by
New River Mining)

WEVA 2006-29

08-03-07
11-16-07

Pg.741
Pg. 1055

Buzzi Unicem USA

CENT 2006-242-RM

06-06-07

Pg.490

Carmeuse Lime,· Inc.

LAKE 2006-100-M

03-23-07

Pg. 266

Carmeuse Lime.& Stone,
Inc.

KENT 2006-73-RM
KENT 2006-158-RM

03-23-07
09-14-07

Pg,284
Pg.815

Central Appalachia
Mining,LLC

KENT 2006-120

06-01-07

Pg.430

Chestnut Coal

PENN 2006-89-R
PENN 2006-145-R

02-07-07
01-19-07
02-06-07

Pg.115
Pg.97
Pg. 107

Clayton's Calcium, Inc.

WEST 2006-441-M

03-07-07

Pg.230

Clean Energy Mining
Co.

KENT 2007-74

04-20-07

Pg. 344

Collins v. Northfork
Coal Co.

KENT 2007-15-D

08-30-07

Pg. 795

6

Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 29

CSA Materials, Inc.

CENT 2007-17-M

07-05-07

Pg.643

Dana Mining Co.

WEYA 2007-662

12-14-07

Pg. 1102

Dix River Stone, Inc.

KENT 2005-386-M

03-02-07

Pg. 186

Drummond Co.

SE 2006-59-R

10-24-07

Pg. 862

Elk Run Coal Co.

WEYA 2005-82

06-04-07

Pg. 451

Emerald Coal Resources

PENN 2007-126
PENN 2007-251-E

07-13-07
06-27-07

Pg.660
Pg. 542

Empire Iron Mining
Partnership

LAKE 2006-60-RM

04-13-07

Pg.317

Evergreen Energy, Inc.

WEST 2007-550

10-29-07

Pg.892

GEO-Environmental
Associates

KENT 2002-251

08-06-07

Pg.684

Hazelton Shaft Corp.

PENN 2007-4

12-14-07

Pg. 1094

Higgins Ranch

CENT 2006-258-M

07-27-07

Pg.679

Higgins Stone, Inc.

CENT 2007-115-M

07-13-07

Pg.662

Highland Mining Co.

KENT 2006-102
KENT 2006-189-R
KENT 2007-265-D

01-08-07
01-17-07
07-26-07

Pg.80
Pg.95
Pg. 729

Huffman Trucking, Inc.

WEVA 2007-235-D

08-27-07

Pg. 721

J axun v. Asarco, LLC

WEST 2007-811-DM

11-21-07

Pg. 1100

Jim Walter Resources,
Inc.

SE 2006-12
SE 2007-307-R

03-07-07
11-16-07

Pg.212
Pg. 1043

L.C. Curtis & Son, Inc.

SE 2007-103-M

06-01-07

·Pg. 447

Lattimore Materials Co.

CENT 2007-25-M

09-27-07

Pg.835

Lehigh Cement Co.

SE 2006-172-M

03-08-07

Pg.334

7

Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 29

Lone Mountain
Processing, Inc.

KENT 2006-237

06-28-07

Pg.557

Mach Mining, LLC

LAKE 2006-82-R

10-29-07

Pg.869

Marfork Coal Co.

WEVA 2006-790-R
WEVA 2006-934

08-22-07
01-22-07

Pg. 699
Pg. 121

Martin County Coal
Corp.

KENT 2002-42'" R

11-13-07

Pg. 1017

Martin (Sec'y of Labor
on behalf of)

VA 2007-40-D

05-21-07
08-17-07

Pg.566
Pg.694

Monterey Coal Co ..

LAKE 2007-49-R

03-28-07

Pg.301

Morning Glory Gold
Mines

WEST 2007-321-M
WEST 2006-519-M

08-31-07
11-16-07

Pg. 743
Pg. 1050

Oak Grove Resources,
LLC

SE 2007-194

11-26-07

Pg. 1089

Pendley v. Highland
Mining Co.

KENT 2007-83-D

02-08-07

Pg. 119

Pendley (Sec'y of Labor
on behalf of}

KENT 2007-265-D

05-30-07

Pg.424

Peterson v. Alcoa World
Alumina Atlantic

CENT 2007-45-DM

04-30-07

Pg.352

Phelps Dodge Tyrone,
Inc.

CENT 2006-212~RM

07-25-07

Pg.669

Powder River Coal, LLC

WEST 2006-433-R
WEST 2006-514-R

05-04-07
07-06-07

Pg.393
Pg.650

Premier Chemicals, LLC

WEST 2007-73-M

08-10-07

Pg.686

RS & W Coal Co.

· PENN 2007-106-R
PENN 2007-361-R

01-11-07
09-26-07

Pg.86
Pg.828

R&D Coal Co.

PENN 2007-50-R

07-27-07

Pg. 735

8

Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 29

Rosebud Mining Co.

PENN 2005-273

04-30-07

Pg.346

San Juan Coal Co.

CENT 2004-212-M

08-21-07

Pg.697

Solar Sources, Inc.

LAKE 2007-37-R

11-06-07

Pg. 1015

Sonney v. Alamo Cement
Co.

CENT 2007-1-DM

01-29-07
04-04-07
04-20-07

Pg. 122
Pg. 310
Pg.332

Spartan Mining Co.

WEVA 2004-117-RM
WEVA 2006-527-R
WEVA 2006-540-R
WEVA 2006-556-R

02-01-07
02-05-07
06-05-07
02-06-07

Pg.99
Pg. 102
Pg.465
Pg. 111

Speed Mining, Inc.

WEYA 2005-20-R

08-27-07

Pg. 701

Summit Anthracite, Inc.

PENN 2006-210

11-19-07

Pg. 1062

Trans Alta Centralia
Mining, LLC.

WEST 2007-102-RM

04-17-07

Pg.339

Twentymile Coal Co.

WEST 2006-531
WEST 2007-892-E

09-05-07
10-16-07

Pg.806
Pg.844

UMWA Local 1248 v.
Maple Creek Mining

PENN 2002-23-C

10-30-07

Pg.896

Wampum Hardware Co.

LAKE 2007-155-RM

07-26-07

Pg. 733

Webster County Coal,
LLC

KENT 2006-320

01-12-07

Pg.90

Wilson (Sec'y of Labor
on behalf of)

SE 2006-176-D

05-22-07

Pg.410

9
G:D' U.S. GOVERNMENT PRINTING OFFICE: 2008-340-005/53306