JANUARY AND FEBRUARY 2009

COMMISSION DECISIONS AND ORDERS
01-08-2009
01-08-2009
01-12-2009
01-12-2009
01-13-2009
01-13-2009
01-13-2009
01-13-2009
01-13-2009
01-15-2009
01-15-2009
01-15-2009
01-15-2009
01-1~-2009

01-22-2009
01-22-2009
01-22-2009
01-27-2009
01-29-2009
02-02-2009
02-02-2009
02-03-2009
02-04-2009
02-04-2009
02-05-2009
02-05-2009
02-11-2009
02-22-2009
02-11-2009
02-11-2009
02-12-2009
02-17-2009
02-17-2009

Martin Marietta Materials, Inc.
Delta Sand & Gravel Co.
Left Fork Mining Company
Southwest Rock Products, LLC.
Lopke Quarries, Inc.
18 Karat, Inc.
Craig & Company, LLC.
Dynatec Mining Corporation
Twentymile Coal Company
Dusek Sand & Gravel, Inc.
Dyno Nobel, Inc.
Ancient Sun, Inc.
West Coast Aggregates, Inc.
ChamplainStone, Ltd.
Petra Materials
Highland Mining Company, LLC.
Alaska Mechanical, Inc.
Luminant Mining Company, LLC.
Sec. Labor o/b/o Lawrence Pendley v.
Highland Mining Company
Freeman Rock, Inc.
Brody Mining, LLC.
Estacada Rock Products
Lafarge Building Materials, Inc.
Endurance Mining
Standard Sand & Silica Company
Ruscat Enterprises, Inc.
Oak Grove Resources, LLC.
J & T Services
Bill Baltrusch Construction, Inc.
Wolf Run Mining Company
Southern Industrial Constructors
ISP Minerals, Inc.
Omis Ricky Smith

i

SE 2008-991-M
WEST 2008-1103-M
KENT 2008-1111
WEST 2009-51-M
KENT 2008-1561-M
PENN 2008:-580
SE 2008-960-M
SE 2008-990-M
WEST 2008-991
CENT 2008-357-M
KENT 2008-1580
PENN 2008-581
WEST 2008-1496-M
YORK 2008-238-M
CENT 2008-735-M
KENT 2009-1
WEST 2008-1582-M
CENT 2008-726

Pg. 1
Pg. 4
Pg. 8
Pg. 14
Pg. 17
Pg. 20
Pg. 23
Pg. 26
Pg. 29
Pg. 32
Pg. 35
Pg. 38
Pg. 41
Pg. 44
Pg. 47
Pg. 51
Pg. 54
Pg. 58

KENT 2008-506-D
WEST 2008-1548-M
WEVA 2008-1861
WEST 2008-812-M
SE 2009-95-M
WEVA 2008-267
SE 2008-546-M
WEVA 2008-143
SE 2009-20
SE 2008-49-M
WEST 2009-203-M
WEVA 2008-259
SE 2008-923-M
CENT 2008-714-M
KENT 2008-1482

Pg. 61
Pg. 91
Pg. 95
Pg. 99
Pg. 102
Pg. 105
Pg. 108
Pg. 112
Pg. 115
Pg. 118
Pg. 121
Pg. 124
Pg. 127
Pg. 130
Pg. 133

ADMINISTRATIVE LAW JUDGE DECISIONS

01-02-2009
01-26-2009
01-27-2009
01-28-2009
02-02-2009
02-02-2009
02-04-2009
02-11-2009
02-12-2009
02-19-2009
02-26-2009
02-26-2009

Cumberland Coal Resources, LP
R S & W Coal Company, et al.
Eastern Associated Coal Corporation
Coal River Mining, LLC.
Webster County Coal, LLC.
Richard Jaimes v. Stansley Mineral Resources
Powder River Coal, LLC.
CCC Group, Inc.
Holcim (US) Incorporated
D&H Gravel
West Ridge Resources, Inc.
Wolf Run Milling Company

PENN 2008-51-R
PENN 2009-97-R
WEVA 2007-335
WEVA 2006-125-R
KENT 2007-451
LAKE 2008-486-DM
WEST 2007-898-R
WEST 2008-124
SE 2007-154-M
LAKE 2008-219-M
WEST 2009-504-R
WEVA 2008-804

Pg. 137
Pg. 168
Pg. 174
Pg. 192
Pg.219
Pg.237
Pg.243
Pg.261
Pg.269
Pg.272
Pg.287
Pg.306

LAKE 2008-93-RM

Pg.312

ADMINISTRATIVE LAW JUDGE ORDERS

02-17-2009

United Taconite, LLC.

ii

JANUARY AND FEBRUARY 2009

Review was granted in the following cases during the months of January and February 2009:
Secretary of Labor, MSHA v. Dusek Sand & Gravel, Inc., Docket No. CENT 2008-357-M. (Judge
Melick, unpublished Default order issued December 8, 2008)
Secretary of Labor, MSHA v. Aracoma Coal Company, Docket Nos. WEVA 2006-654, et al.
(Judge Lesnick, December 23, 2008)
Secretary of Labor, MSHA v. Cumberland Coal Resources, LP, Docket Nos. PENN 2008-51-R, et
al. (Judge Zielinski, January 2, 2009)

No case was filed in which review was denied during the months of Januazy and Februazy 2009:

iii

COMMISSION DEQSIONS AND ORDERS

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

January 8, 2009

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2008-991-M
A.C. No. 31-02009-155842

v.
MARTIN MARIETTA MATERIALS, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S. C.
§ 801 et seq. (2000) ("Mine Act"). On September 4, 2008, the Commission received from
Martin Marietta Materials, fuc. ("Martin Marietta") a motion by counsel requesting reopening of
a proposed 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). 1
On July 3, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Penalty Assessment No. 000155842 to Martin Marietta. The
operator states that it timely contested the proposed assessment. Martin Marietta further submits
that, by a letter dated August 26, 2008, MSHA stated that the proposed assessment had not been
timely contested.

1

Under section I 05(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).
31 FMSHRC I

The Secretary has subsequently informed the Commission that Assessment No.
000155842 is being treated by MSHA as a validly contested assessment. Consequently, there is
no final Commission order with respect to this assessment to reopen, and this docket is
dismissed.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC2

Distribution:
Karen L. Johnston, Esq.
Jackson Kelly PLLC
I 099 I 81h Street, Suite 2150
Denver, CO 80202
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& Health Review Commission
601 New JerseyAvenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC3

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

January 8, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2008-1103-M
A.C. No. 35-00481-131566

v.
DELTA SAND & GRAVEL CO.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY: Jordan and Cohen, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq, (2000) ("Mine Act"). On June 2, 2008, the Commission received from Delta Sand
& Gravel Co. (..Delta") 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 February 26, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to Delta for two citations MSHA had issued to
Delta in November 2007. Delta requests reopening on the ground that the citations were related
to a fatal accident, and Delta intended to contest the penalty assessments, as it later did in the
case of another assessment resulting from that accident. Delta states that its failure to contest
was due to office personnel not realizing the connection between the assessment and the
accident, so they did not forward the assessment to the company's Risk Manager. Delta alleges it
forwarded the assessment through its payment process, but the assessment was never paid, and
later Delta received a delinquency notice. The Secretary states that she does not oppose Delta's
request to reopen the penalty.
31 FMSHRC4

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).
While Delta's request for relief addresses the mistake that led to its failure to return the
assessment form to MSHA, its motion is silent regarding why the assessment sat apparently
unpaid for months, despite having been routed through Delta's payment process. Consequently,
we deny Delta's request to reopen without prejudice. Cf Twentymile Coal Co., 30 FMSHRC
177, 178 {Apr. 2008) (denying without prejudice motion to reopen by operator that explained late
payment of penalties but failed to address its separate failure to return contest form).

fu the event Delta chooses to refile its request to reopen, we would expect it to provide,
by submitting affidavits; detailed evidence regarding what happened when the assessment was
routed to the payment office and why staff there failed to pay it or forward it to the appropriate
personnel.

Robert F. Cohen, Jr., Commissioner

31FMSHRC5

Chairman Duffy and Commissioner Young:
Having reviewed Delta's request and the Secretary's response, we would not deny the
request on the grounds stated by our two colleagues, but would instead remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for Delta's
failure to timely contest the penalty proposal and whether relief from the final order should be
granted. 1

1

Where two Commissioners have voted to deny without prejudice a request to reopen a
C3$e and two Commissioners have voted to remand the case for a determination of whether good
cause exists to reopen the case, the effect of the split vote is that the request to reopen is not
granted. However, we believe that the party seeking a reopening in such a situation may file a
new request to reopen which provides additional support for its position.
31 FMSHRC6

Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
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 & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC7

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

January 12, 2009
Docket No. KENT 2008-1111
A.C. No. 15-12564-125861

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. KENT 2008-1181
A.C. No. 15-12564-127886

v.

Docket No. KENT 2008-1182
A.C. No; 15-12564-130206

LEFT FORK MINING COMPANY, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners

ORDER
BY: Jordan, Young, and Cohen, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). 1 On May 28, and June 20, 2008, the Commission received
frpm Left Fork Mining Company, Inc. ("Left Fork") a letter and motions 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 August 28, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000125861 to Left Fork, proposing civil penalties
for several citations, including 27 citations currently at issue. On October 2, 2007, MSHA issued
Proposed Assessment No. 000127886 to Left Fork for six citations, including two citations

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate Docket Nos. KENT 2008-1111, KENT 2008-1181, and KENT 2008-1182, as all
dockets involve similar procedural issues and similar factual backgrounds. 29 C.F.R. § 2700.12.
31FMSHRC8

presently at issue. On October 30, 2007, MSHA issued Proposed Assessment No. 000130206 to
Left Fork for several citations, including four citations presently at issue.
On November 29, 2007, MSHA issued a Notice of Delinquency to Left Fork pertaining to
Proposed Assessment No. 000125861. On December 26, 2007, MSHA issued a Notice of
Delinquency to Left Fork pertaining to Proposed Assessment No. 000127886. On January 30,
2008, MSHA issued a Notice of Delinquency to Left Fork pertaining to Proposed Assessment
No. 000130206.
On May 13, 2008, counsel for MSHA sent Left Fork a letter pertaining to the
delinquencies of all three proposed assessments. In this letter, MSHA stated that the total unpaid
delinquencies amounted to $76,897.79, including statutory interest and administrative fees.
MSHA further stated that unless payment was made by May 27, 2008, it would issue a citation
under section 104(a) of the Mine Act charging Left Fork with a failure to comply with the
Commission's final orders and for failing to comply with sections 105 and HO(j) of the Mine
Act. MSHA also stated that ifLeft Fork should fail to abate the section 104(a) citation, it would
necessitate the issuance of a mine closure order.
On May 28, 2008, the Commission received a letter from Left Fork's safety director,
stating with respect to Proposed Assessment No. 000125861 that Left Fork did not receive a
conference regarding the citations on the proposed assessment form that it had "checked for
contest." Left Fork alleged that MSHA was seeking payment of penalties associated with the
citations that Left Fork indicated it was contesting, and that there had been an error. The
Secretary responded that Left Fork failed to make a showing of exceptional circumstances
required to obtain reopening under Fed. R. Civ. P. 60(b). She further stated that MSHA had no
record of having received a contest of the proposed assessment. The Secretary requested that the
Commission provide the operator with an opportunity to satisfy the requirements for reopening.
On June 20, 2008, the Commission received from Left Fork's counsel a memorandum
responding to the Secretary's statement that the operator be given an opportunity to satisfy the
requirements for reopening with respect to Proposed Assessment No. 000125861. On that same
date, the Commission received motions to reopen from Left Fork's counsel with respect to
Proposed Assessments Nos. 000127886 and 000130206.

In all three pleadings, Left Fork's counsel states that, upon receipt of the proposed
assessments, the assessment forms were marked to indicate Left Fork's intent to contest the
penalties associated with several citations, and then forwarded to Left Fork's Brookside office,
consistent with company policy~ Counsel maintains that "[t]hrough inadvertence or mistake," the
completed assessment forms were not timely returned to MSHA. Counsel attached to the
pleadings affidavits by Tony Nelson, Jr., Left Fork's safety director, in which the safety director
states in part that "[b ]ecause of a misunderstanding, personnel formerly employed in the
Brookside office paid the uncontested penalties but apparently did not return the assessment
cards to MSHA as contested."

31 FMSHRC9

On July 2, the Commission received responses to the three pleadings from the Secretary,
in which the Secretary opposed the operator's requests to reopen the penalty assessments. The
Secretary states that the operator does not explain how or why a mistake occurred in the
Brookside office, but merely asserts that a mistake occurred. She submits that such a conclusory
assertion is insufficient to establish exceptional circumstances that warrant reopening. In
addition, the Secretary states that the operator failed to identify facts that, if proven on reopening,
would establish a meritorious defense. She further states that the operator failed to explain why,
after it was sent the Notices of Delinquency in each of the three cases many months earlier, it
took as long as it did to request the reopenings. In this regard, the Secretary noted the letter sent
by her counsel on May 13, 2008. The Secretary submits that the operator's filing of requests to
reopen only when facing enforcement action does not demonstrate good faith.
On July 22, the Commission received from Left Fork a reply to the Secretary's responses.
Left Fork asserts that, contrary to the Secretary's assertions, it did explain how or why a mistake
occurred at the Brookside office. It states that the explanation was set forth in the safety
director's affidavit when he stated that he intended to contest the penalties but that "[ f]or reasons
unknown" the proposed assessment was not returned to MSHA.
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 noted that Rule 60(b) "is a tool
which ... courts are to use sparingly ...." Atlanta Sand & Supply Co., 30 FMSHRC 605, 608 ·
(July 2008) (citing JWR, 15 FMSHRC at 789). We have also observed, however, 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 Left Fork's filings and the Secretary's responses, we agree with the
Secretary that Left Fork has failed to make a showing of circumstances that warrant reopening.
The operator's conclusory statements that its failure to timely file was due to "inadvertence or
mistake" do not provide the Commission with an adequate basis to justify reopening. Even after
the Secretary opposed Left Fork's motion on the grounds that it had set forth only a conclusory
assertion in its attempt to justify relief, the operator merely responded that "[f]or reasons
unknown, the proposed assessments wete not returned as contested." L.F. Reply at 2.

In addition, Left Fork fails to explain its failure to act after receiving Notices of
D¢linquency in November, December, and January. Rather, the record reveals that the operator
did not seek relief until it faced the enforcement action described in MSHA's May 13, 2008 letter

31FMSHRC10

to the operator, including potential mine closure. Despite the receipt of a Notice of Delinquency
in each of the three penalty assessments, Left Fork did not seek reopenings until approximately
eight months after each of them became final, and approximately six months after MSHA
notified the operator of its delinquencies in the three cases.
Left Fork, as the movant, carries the burden of establishing its entitlement to
extraordinary relief. Delay in seeking that relief, if unexplained, has been a relevant
consideration in denial of motions to reopen. See Central Operating Co. v. Utility Workers of
America, 491F.2d245, 253 (4th Cir. 1974) (finding "inexcusable dereliction"and denying
motions to vacate when defendants waited almost four months after receivingJtotice of default
judgments); see also McLawhorn v. John W. Daniel & Co., 924 F.2d 535, 538 (4th Cir. 1991)
(finding that unexplained delay of three-and-a-half months was not reasonable).
Left Fork has provided no explanation for what cannot be objectively viewed as a prompt
and diligent response, including its failure to seek relief of any type from the final orders until
after MSHA threatened further enforcement action and closing the mine for non-payment.
Accordingly, we deny Left Fork's requests.

Robert F. Cohen, Jr., Commissioner

31FMSHRC11

Chairman Duffy; dissenting:
While I agree with the majority that Left Fork has not been as responsive as it could and
should have been regarding its failure to return the contest forms, and has thus far failed to
explain why it waited so long to act after MSHA had sent it delinquency notices, I do not agree
that the operator's failures justify denial of its requests to reopen with prejudice. Rather; I would
deny the requests without prejudice, to allow Left Fork, should it choose to renew its requests to .
reopen, the opportunity to explain why it waited five to six months following its receipt of
delinquency notices before filing its original requests to reopen. See Pinnacle Mining Co.,
Docket Nos. WEVA 2008-927, etc., slip op. at 4 (Dec. 17, 2008) (denying without prejudice
requests to reopen ten assessments, totaling over $250,000 in proposed penalties, that had gone
final because of operator inaction, and noting that any renewed request for reopening should
address, among other matters, the operator's actions following the receipt of delinquency notices
regarding nine of the assessments).

31FMSHRC12

Distribution:
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., 251h Floor
Arlington, VA 22209-3939
John M. Williams, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
2333 Alumni Park Plaza, Suite 310
Lexington, I(Y 40517
Melanie J. Kilpatrick, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
2333 Alumni Park Plaza, Suite 310
Lexington, KY 40517
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

31FMSHRC13

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

January 12, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-51-M
A.C. No. 02-03111-141339

v.
SOUTHWEST ROCK PRODUCTS, LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On October 16, 2008, the Commission received from
Southwest Rock Products, LLC ("Southwest") a request to reopen two penalty assessments that
had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
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).
The Secretary supports reopening of the proposed penalty assessments in order that the
parties' agreement to settle the assessments can be approved.
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 mistake, inadvertence, or excusable neglect.
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
31FMSHRC14

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 Southwest's request and the Secretary's response, we grant reopening
and hereby remand this matter to the Chief Administrative Law Judge to rule on the motion for
approval of the settlement attached to the Secretary's response.

Mich

Robert F. Cohen, Jr., Commissioner

31FMSHRC15

Distribution:
Christopher Reinesch
Southwest Rock Products, LLC
745 N. Gilbert Rd., #124-304
Gilbert, AZ 85234
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 & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC16

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

January 13, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION·(MSHA)
Docket No. KENT 2008-1561-M
A.C. No. 15-00101-136796

v.
LOPKE QUARRIES, JNC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On September 9, 2008, the Commission received from Lopke
Quarries, fuc. ("Lopke") a request 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).
The Secretary states that she does not oppose the reopening of the proposed 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(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 mistake, inadvertence, or excusable neglect.
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
31FMSHRC17

merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Lopke's request and the Secretary's response, in the interests of justice,
we hereby remand this matter to the Chief Administrative Law Judge for a determination of
whether good cause exists for Lopke' 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~ fly, Chairm~ ~

Michael

Robert F. Cohen, Jr., Commissioner

31FMSHRC18

Distribution:
William K. Doran, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
2400 N Street NW, 5th Floor
Washington, DC 2003 7
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
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor, West
Arlington, VA 22209-3939
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

31FMSHRC19

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

January 13, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2008.;580
A.C. No. 36.:.07230-148541 SIS

v.
18 KARAT, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On September 2, 2008, the Commission received from
18 Karat, fuc. ("Karat") a request 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 I 05(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).
The Secretary states that she does not oppose the reopening of the proposed 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(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 mistake, inadvertence, or excusable neglect.
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
31 FMSHRC20

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 Karat's request and the Secretary's response, in the interests of justice,
we hereby remand this matter to the Chief Administrative Law Judge for a determination of
whether good cause exists for Karat'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.

Robert F. Cohen, Jr., Commissioner

31FMSHRC21

Distribution:
Peter J. Magnotta, Controller
18 Karat, Inc.
211 Mitchell Road
Eighty Four, PA 15330
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 & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC22

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

January 13, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2008-960-M
A.C. No. 31-02143-134329 Q615

v.
CRAIG & COMPANY, LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2000) ("Mine Act"). On August 15, 2008, the Commission received from Craig &
Company, LLC ("Craig") a request 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 IOS(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).
The Secretary states that she does not oppose the reopening of the proposed 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 IOS(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from
a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See
29 C.F.R. § 2700.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
31FMSHRC23

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 Craig's request and the Secretary's response, in the interests of justice,
we hereby remand this matter to the Chief Administrative Law Judge for a determination of
whether good cause exists for Craig'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 F

Robert F. Cohen, Jr., Commissioner

31 FMSHRC24

----

Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
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 & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC25

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

January 13, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2008-990-M
A.C. No. 40-00864-154105

v.

DYNATEC MINING CORPORATION

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On September 4, 2008, the Commission received from
Dynatec Mining Corporation ("Dynatec") a request 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).
The Secretary states that she does not oppose the reopening of the proposed 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
:frQm a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
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
31 FMSHRC26

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 Dynatec's request and the Secretary's response, in the interests of
justice, we hereby remand this matter to the Chief Administrativ:.e Law Judge for a determination
of whether good cause exists for Dynatec 's failure to timely contest the penalty proposal and
whether relief from the final order should be granted. If it is determiried 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.

Michae

Robert F. Cohen, Jr., Commissioner

31 FMSHRC27

Distribution:
C. Gregory Ruffennach
Attorney at Law
1629 K Street
Suite 300
Washington, D.C. 20036
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
1l 00 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
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

31 FMSHRC28

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

January 13, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2008-991
A.C. No. 05-03836-141404

v.

TWENTYMILE COAL COMPANY

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On May 8, 2008, the Commission received from Twentymile
Coal Company (''Twentymile") a request 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 February 26, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000141404, which proposed civil penalties for
various citations issued to Twentymile. Twentymile states that it received the proposed
assessment on March 3, 2008, but that its safety assistant, having miscalculated the number of
days in March, mistakenly believed that the contest of the proposed penalties was to be submitted
to MSHA by April 3, 2008, rather than by April 2. On April 2, Twentymile's safety assistant
sent, by overnight mail, its contest indicating which proposed penalties it wished to contest.
Twentymile submits that on April 21, 2008, MSHA sent a delinquency notice stating that the
proposed penalty assessment had not been timely contested.

31 FMSHRC29

The Secretary states that she does not oppose Twentymile's request for relief.
We conclude that Twentymile's contest of the proposed penalty assessment was timely
filed. Twentymile's allegation that it received Pr,oposed Assessment No. 000141404 on March 3,
2008, is supported by MSHA' s delinquency notice dated April 21, 2008, which also states that
Twentymile received the proposed penalty assessment on March 3. Under the Mine Act and
Commission Procedural Rule :26, the deadline for filing Twentymile's contest was April 2, 2008.
When filing is by mail; filing is effective upon mailing. 29 C.F.R. § 2700.5(e)(2). Here, the
record reveals that Twentymile mailed its contest by overnight mail on April 2, 2008.
For the foregoing reasons, we conclude that the proposed penalty assessment has not
become a final order of the Commission because Twentymile timely contested it. We deny
Twentymile's motion as moot and remand this matter to the Chief Administrative Law Judge for
further proceedings as appropriate pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. See State ofAlaska Dep 't of Transp. and Pub. Facilities, 29
FMSHRC 389, 390 (June 2007).

A.

.~~
Michae1:llffY,Chairll~~

Robert F. Cohen, Jr., Commissioner

31 FMSHRC30

Distribution:
R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center
Suite 1340
40 I Liberty Avenue
Pittsburgh, PA 15222

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd.
Room2220
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 & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC31

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

January 15, 2009

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

Docket No. CENT 2008-357-M
A.C. No. 32-00153.. 139261

v.
DUSEK SAND & GRAVEL, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
DIRECTION FOR REVIEW AND ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 u~s.C.
§ 801 et seq. (2006) ("Mine Act"). On December 8, 2008, Administrative Law Judge Gary
Melick entered an order of default against Dusek Sand & Gravel, Inc. (''Dusek") for its failure
to file an answer to the Secretary of Labor's petition for assessment of civil penalty. On
December 22, 2008, the Commission received a motion from the Secretary requesting that the
Commission relieve Dusek from the order of default.
The judge's jurisdiction in this matter terminated when his decision was issued on
December 8, 2008. 29 C.F .R. § 2700.69(b). Under the Mine Act and the Commission's
procedural rules, relief from a judge's decision maybe sought by filing a petition for
discretionary review within 30 days ofits issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700. 70(a). If the Commission does not direct review within 40 days of a decision's
issuance, it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(I). We construe
the Secretary's motion to be a timely filed petition for review, which we grant.
In her motion, the Secretary requests that Dusek's response to the Secretary's motion
for summary judgment filed on November 26, 2008, be treated as an answer to the civil penalty
petition and that the Commission reopen the case in order that the parties' agreement to settle
the proposed penalty assessment can be approved.
31 FMSHRC32

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"); Highlands Mining &
Processing Co., 24 FMSHRC 685, 686 (Dec. 2004). 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 the Secretary's motion, we hereby reopen this matter and remand it to
Administrative Law Judge Melick for a determination of whether the motion for settlement
should be approved, and for other appropriate relief pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700. See Tresca Brothers Sand &Gravel,
Inc., 28 FMSHRC 494 (Aug. 2006).

Robert F. Cohen, Jr., Commissioner

31 FMSHRC33

Distribution:
Timothy S. Williams, Esq.
Office of the Solicitor
U.S. DepartmentofLabor
1999 Broadway, Suite 1600
Denver, CO 80202
Wes R. Welch, Esq.
201 Briggs Avenue
South, ParkRiver, ND 58270
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-~021
Chief AdministrativeLaw Judge Robert.I. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C .. 20001-2021

31FMSHRC34

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

January 15, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2008-1580
A.C. No. 15-18867-154605 RN6

v.
DYNO NOBEL, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2000) ("Mine Act"). On September 16, 2008, the Commission received from
Dyno Nobel, Inc. (''Dyno") a request 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).
The Secretary states that she does not oppose the reopening of the proposed 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(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 mistake, inadvertence, or excusable neglect.
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
31 FMSHRC35

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 Dyno' s request and the Secretary's response, in the interests of justice,
we hereby remand this matter to the Chief Administrative Law Judge for a determination of
whether good cause exists for Dyno' 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.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC36

Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Rooi:n 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 & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC37

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

WASHINGTON, DC 20001

January 15, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2008"".581
A.C. No. 36-05208-149884

v.
ANCIENT SUN, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety andHealth Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (''Mine Act"). On September 2, 2008, the Commission received from
Ancient Sun, Inc. (''Ancient Sun") a request 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).
The Secretary states that she does not oppose the reopening of the proposed 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 mistake, inadvertence, or excusable neglect.
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
31 FMSHRC38

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 Ancient Sun's request and the Secretary's response, in the interests of
justice, we hereby remand this matter to the Chief Administrative Law Judge for a determination
of whether good cause exists for Ancient Sun'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.

Robert F. Cohen, Jr., Commissioner

31FMSHRC39

Distribution:
Brian J. Kahle, Esq.
Minto Law Group, LLC ·
Two Gateway Center
603 Stanwix Street, Suite 2025
Pittsburgh, PA 15222 .
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., 25 1h Fl.
Arlington, VA 22209-2247
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

31 FMSHRC40

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

January 15, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)
Docket No. WEST 2008-1496-M
A.C. No. 04-02261-148716

v.
WEST COAST AGGREGATES, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2000)("Mine Act"). On September 3, 2008, the Commission received from West
Coast Aggregates, Inc. ("West Coast") a request 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).
The Secretary states that she does not oppose the reopening of the proposed 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(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 mistake, inadvertence, or excusable neglect.
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
31FMSHRC41

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 West Coast's request and the Secretary's response, in the interests of
justice, we hereby remand this matter to the Chief Administrative Law Judge for a determination
of whether good cause exists for West Coast'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 sb.all proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC42

Distribution:
Timothy R, Olsen, Esq.
163 Montezuma Street
Brighton, CO 80601
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 Labo~
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
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

31 FMSHRC43

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

January 15, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK 2008-238-M
A.C. No. 30-02803-123963

v.

CHAMPLAIN STONE, LTD.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On September 24, 2008, the Commission received from
Champlain Stone, Ltd. ("Champlain") a request to reopen a penalty assessment that had become
a fmal 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).
The Secretary states that she does not oppose the reopening of the proposed 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(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 mistake, inadvertence, or excusable neglect.
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
31 FMSHRC44

for a failure to· timely respond, the case may be reopened and appropriate proceedings on the
merits pennitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Champlain's request and the Secretary's response, in the interests of
justice, we hereby remand this matter to the Chief Administrative Law Judge for a detennination
of whether good cause exists for Champlain'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.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC45

Distribution:
Scott M. McKenna
Champlain Stone, Ltd.
P.O. Box 650
Warrensburg,, NY 12885
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 & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC46

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

January 22, 2009

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

Docket No. CENT 2008-735-M
A,C. No. 41-04518-157473
Docket No. CENT 2008-736-M
A.C. No. 41-04518-140610

v.

PETRA MATERIALS

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2006) ("Mine Act"). 1 On September 5, 2008, the Commission received from
Petra Materials ("Petra") 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 February 14 and July 17, 2008, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Proposed Penalty Assessment Nos. 000140610 and
000157473, respectively, to Petra for several citations. On September 5, 2008, the Commission
received from Petra a letter requesting that the cases be reopened so that the operator could
contest and discuss the amounts of the penalties. The operator states that the date to contest the
penalties had passed because it "did not know the procedures."

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers CENT 2008-735-M and CENT 2008-736-M, both captioned Petra
Materials and involving similar procedural issues. 29 C.F .R. § 2700.12.
31 FMSHRC47

On September 30, 2008, the Commii;sion received an opposition from the Secretary, in
which the Secretary states that the operator made no showing of circumstances that warrant
reopening. In addition, as to Docket No. CENT 2008-736-M, the Secretary notes that MSHA
notified Petra by letter dated May 14, 2008, that it was delinquent in paying the proposed
a$Sessment. She states that Petra fails to explain why it took three months to seek relief once it
received the letter advising that it was delinquent in paying the penalties.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders wider 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) 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.

31 FMSHRC48

Having reviewed Petra's request to reopen and the Secretary's response thereto, we agree
with the Secretary that Petra has failed to provide a sufficiently detailed explanation for its failure
to timely contest the proposed penalty assessments. Petra's conclusory statement that it failed to
timely contest because it did "not know the procedures," and its failure to explain the delay in
responding to the delinquency notice in Docket No. CENT 2008-736-M do not provide the
Commission with an adequate basis to reopen. Accordingly, we deny without prejudice Petra's
request. See, e.g., BRS Inc., 30 FMSHRC 626, 628 (July 2008); Eastern Associated Coal, LLC,
30 FMSHRC 392, 394 {May 2008). The words ''without prejudice" mean Petra may submit
another request to reopen the case so that it can contest the citations and penalty assessments. 2

Robert F. Cohen, Jr., Commissioner

2

If Petra submits another request to reopen the cases, it must identify the specific
citations and assessments it seeks to contest. Petra must also establish good cause for not
contesting the citations and proposed assessments within 30 day8 from the date it received the
proposed penalty assessments from MSHA. Under Rule 60(b) of the_ Federal Rules of Civil
Procedure, the existence of "good cause" may be shown by a number of different factors
including mistake, inadvertence, surprise or excusable fault on the part of the party seeking relief,
or the discovery of new evidence, or fraud, misrepresentation or other misconduct by the adverse
party. Petra should include a full description of the facts supporting its claim of"good cause,"
including how the mistake or other problem prevented Petra from responding within the time
limits provided in the Mine Act, as part of its request to reopen the case. Petra should also
explain its delay in responding to the delinquency notice in Docket No. CENT 2008-736-M. In
addition, Petra should submit copies of supporting documents with its request to reopen the case.

31 FMSHRC49

Distribution:
Raul Villa
Petra Materials
1600 E. Fourth Ave.
El Paso, TX 79901
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 Labor1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
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

31 FMSHRC50

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

January 22, 2009

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)
Docket No. KENT 2009-1
A.C. No. 15-02709-146615

v.
HIGHLAND MINING COMPANY, LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and flealth Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On October 1, 2008, the Commission received from
Highland Mining Company, LLC ("Highland") a request 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).
The Secretary states that she does not oppose the reopening of the proposed 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(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 mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) c·the Commission and its Judges shall be guided so far as practicable
31FMSHRC51

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 Highland's request and the Secretary's response, in the interests of
justice, we hereby remand this matter to the Chief Administrative Law Judge for a determination
of whether good cause.exists for Highland'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.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC52

Distribution:
Michael T. Cimino, Esq.
Jackson Kelly, PLC
1600 Laidley Tower
P.O. Box 553
Charleston, WV 25322
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
U.S. Department of Labor
MSHA
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
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

31 FMSHRC53

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

January 22, 2009
SECRETARY OF LABOR,
MINE SAFETY ANO HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2008., 1582-M
A.C. No. 50-01850-159018 LWI

v.
ALASKA MECHANICAL, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On September 25, 2008, the Commission received from
Alaska Mechanical, Inc. ("Alaska Mechanical") a motion by counsel seeking to 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 October 4, 2007, the Department of Labor's Mine Safety and Health Administration
{'•MSHA") issued Citation Nos. 6398234 and 6398235 to Alaska Mechanical. Alaska
Mechanical contested the citations, which are the subject of Docket Nos. WEST 2008-152-RM
and WEST 2008-153~RM and are currently stayed. The operator states that it received Proposed
Assessment No. 000159018, which proposed civil penalties for the citations, on August 11,
2008, and thus its deadline for contesting the penalties was September 10, 2008. Alaska
Mechanical further states that it sent its contest by Federal Express priority delivery on
September 9, and that, contrary to the assertion in MSHA's delinquency notice that MSHA
received the contest on September 12, a tracking slip indicates that MSHA received the contest
on September 10. Alaska asserts that it timely submitted its contest and that MSHA
miscalculated applicable deadlines.
31FMSHRC54

The Secretary states that she does not oppose Alaska Mechanical' s request to reopen.
She notes, however, that MSHA records show that the operator received the proposed penalty
assessment on August 8, 2008. She asserts that the operator's contest filed on September 9 was
filed one day late.
· 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 defaultil!gparty 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 record presently before us, we are unable to determine whether Alaska Mechanical
timely contested the proposed penalty assessment. Specifically, it is unclear on what date
(August 8 or August 11, 2008) Alaska Mechanical received the proposed penalty assessment.
If the company timely contested the proposed assessment, the proposed assessment has not
become a final order of the Commission and the company's request for relief would be moot. DS
Mine & Dev. LLC, 28 FMSHRC 462, 463 (July 2006).

31FMSHRC55

Accordingly, we remand this matter to the Chief Administrative Law Judge for a
determination of whether Alaska Mechanical timely contested the proposed penalty assessment
at issue. If it is determined that the company did file a timely contest, the Chief Judge shall order
further proceedings as appropriate.pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. If it is determined that Palmer failed to timely contest the proposed
assessment, the Chief Judge shall determine whether good cause exists for granting relief from
the final order. See Palmer Coking Coal Co., 30 FMSHRC _ , No. WEST 2008-934-M {Dec.
22, 2008).

Robert F. Cohen, Jr., Commissioner

31 FMSHRC56

Distribution:
Cole A. Wist
Baker & Hostetler, LLP
303 E. l 71h Ave., Suite 1100
Denver, CO 80203
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
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor, 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

31 FMSHRC57

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

January 27, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2008-726
A.C. No. 41-03660-153277

v.
LUMINANT MINJNG COMPANY, LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C~
§ 801 et seq. (2006) ("Mine Act"). On September 2, 2008, the Commission received from
Luminant Mining Company, LLC ("Luminant") 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 l 05(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
p~nalty 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 11, 2008, the Department of Labor's Mine Safety and Health Administration
is$ued Proposed Penalty Assessment No. 000153277 to Luminant, proposing a civil penalty for
Cjtation No. 4542218. In its request, Luminant states that it intended to timely contest the
proposed penalty but that it failed to do so due to "inadvertence and mistake by Company
personnel."

The Secretary opposes Luminant' s request to reopen. She states that the conclusory
assertion of the cause for Luminant's failure to timely file does not constitute a showing of the
circumstances required to obtain reopening under Fed. R. Civ. P. 60(b). She requests that the
Commission deny the operator's request to reopen.
31 FMSHRC58

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"). fu evaluatingrequests 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"); .!WR, 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 Luminant's motion to reopen and the Secretary's response, we agree
with the Secretary that Luminant has failed to provide a sufficiently detailed explanation for its
failure to timely contest the proposed penalty assessment. Luminant' s conclusory statement that
its failure to timely file was due to "inadvertence and mistake" does not provide the Commission
with an adequate basis to justify reopening. Accordingly, we deny without prejudice Luminant's
request. See, e.g., Eastern Associated Coal, LLC, 30 Fl\4SHRC 392, 394 (May 2008); James
Hamilton Constr., 29 FMSHRC 569, 570 (July 2007).

Robert F. Cohen, Jr., Commissioner
31 FMSHRC59

Distribution:
Laura E. Beverage, Esq.
Jackson Kelly PLLC
I 099 18th Street, Suite 2150
D~nver, CO 80202
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 ofLabor1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
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

31 FMSHRC60

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

January 29, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of LAWRENCE L. PENDLEY
Docket Nos. KENT 2006-506-D
KENT 2007-383-D

v.
HIGHLAND MINING COMPANY, LLC

BEFORE:. Duffy, Chairman; Jordan and Young, Commissioners 1
DECISION
BY: Duffy, Chairman, and Young, Commissioner
This consolidated proceeding involves discrimination complaints filed by the Secretary of
Labor on behalf of Lawrence Pendley under section 105(C) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(C) (2006) ("Mine Act" or "Act"), against Highland Mining
Company, LLC ("Highland") and its agents, David Webb, Larry Millburg, and Scott Maynard.
Administrative Law Judge David Barbour determined that Highland and Webb
discriminated against Pendley when they suspended him from work on December 21, 2005. 30
FMSHRC 459, 498 (May 2008) (AU).2 The judge further determined that Highland and its
agents did not discriminate against Pendley when he was suspended, with intent to discharge, on
March 21, 2007. Id. at 499. The judge also found no merit to the Secretary's allegation ·of
adverse changes in Pendley' s working conditions following his temporary reinstatement in June

1

Commissioner Cohen did not participate in this matter.

2

Highland did not appeal the judge's determination that it had discriminated against
Pendley when it suspended him on December 20, 2005. The judge subsequently issued a final
decision in which he determined the backpay due Pendley and imposed a civil penalty against
Highland. 30 FMSHRC 500, 502 (June 2008) (ALJ).
31FMSHRC61

2007. Id. The Secretary appealed thejudge's determination that Highland did not discriminate
against Pendley when it suspended him on March 21, 2007. Pendley appealed the judge's
detennination that Highland did not discriminate against Pendley in his working conditions
following his temporary reinstatement. For the reasons that follow, we affirm the judge's
decision.
I.

Factual and Procedural Background3
A.

Incidents at the Mine Involving Pendley and Creighton

Highland's No. 9 Mine is a large underground coal mine that employs approximately 300
miners on two production shifts that mine coal six days a week. R. Ex. 25 at 1-2. Highland's
miners are represented by the United Mine Workers of America (UMWA). Id. at 1. Lawrence
Pendley is a non-production miner who is classified as a "maintenance parts runner." 30
FMSHRC at 459-60. His responsibilities include delivering parts and supplies to underground
miners. Id. at 462.
Beginning in May 2005, Pendley' s job brought him in contact with Jack Creighton, who.
worked above ground as a supply man and hoist man and also maintained the bathhouse. Id.; Tr.
749. During the spring and summer of 2005, Pendley was involved in a series of events that he
suspected Creighton had initiated. Pendley' s truck was damaged while parked in the mine
parking lot. 30 FMSHRC at 463. Around the same time as the damage to Pendley's truck
occurred, someone opened his locker in the bathhouse and poured bleach on his clothes. Id. He
reported these incidents to management. Id. Sometime after Pendley reported the damage to his
clothes, Pendley found dirt piled in front of his locker in the bathhouse. Id. Also, during this
time period, Creighton was hosing down the floor when Pendley walked between Creighton and
a row of lockers. Id. at 464. Pendley was sprayed, and his pants and feet got wet. Id. Pendley
had problems with his cap light caused by the light going out. Id. at 465. Pendley believed that
the reason was that "bad" bulbs were being placed in his cap lamp. Id.
fu the summer of 2005, Creighton admittedly knew that Pendley had gone to management

and complained about him. Id. at 464. In the bathhouse, Creighton confronted Pendley and
threw a paper towel on the floor and told Pendley, "[T]here is something to cry about, go cry
about that." Id.; Tr. 764. Creighton then saw Pendley reach into his locker and pull out what
Creighton thought was a gun. 30 FMSHRC at 464. Creighton told Pendley that he would shove
3

The record includes the transcript of the three days of hearing before Judge Barbour in
this consolidated proceeding (Docket Nos. KENT 2007-383-D and KENT 2006-506-D).
References to that transcript are designated "Tr." In addition, by agreement of the parties and the
judge, the transcript of the one-day temporary reinstatement hearing (Docket No. KENT 20072650) was also included in the record. References to that transcript are designated "TRH Tr."
31 FMSHRC62

the gun down Pendley's throat. Id. Pendley responded by "mouthing" at Creighton, who walked
away. Id. About two or three weeks later, Creighton complained to operations manager Webb
that Pendley had threatened Creighton that he had a gun in his locker or acted as ifhe had a gun
in his locker. Id.
Also during this period, Pendley complained about the operation of the "man," or hoist,
cars on which he rode. 4 30 FMSHRC at 465. Pendley complained numerous times to assistant
superintendent Maynard that Creighton had unnecessarily stopped and then restarted the man
cars when Pendley was on board. Id. Pendley also complained that, when Creighton was at the·
controls in the hoist shack, he would send cars below ground without Pendley even though
Pendley was waiting to board. Id.
Pendley also spoke to Maynard about Creighton running too close to Pendley in the
motorized cart, or golf cart. Id. According to Pendley, Larry ("Lap") Lewis told Pendley that he
did not understand why management did not do something about Creighton's "close calls" with
Pendley. Id. Pendley spoke to Maynard about Creighton trying to run him over, but Maynard
could not find any witnesses who could confirm the incidents. Id.
Sometime later, another incident occurred involving Pendley and Creighton, who was
operating a forklift. Id.. at 466. Creighton had a pallet of materials on the forklift that Lap Lewis
was preparing to foad irito the hoist cars. Id. According to Pendley, rather than waiting to board
the car near the hoist shack, he went to board the car where Lewis was loading. When Lewis
finished unloading, Pendley walked behind him, placing himself between the forklift and the car.
Id. Pendley testified that Creighton threatened to run him over. Creighton was certain that
Pendley had placed himself between the forklift and the car, thereby endangering himself in the
event the brakes on the forklift failed or the throttle stuck. Id.; Tr. 776-79.
Assistant superintendent Maynard learned of the forklift incident and spoke to Creighton,
who denied knowing what had happened. 30 FMSHRC at 466; Tr. 933-35. Highland's safety
manager, James Allen, also became involved in reviewing the incident. He determined that
Pendley did not have to walk where he did, that he could have sat in another row of seats in the
car, and that he could have sat in another car. 30 FMSHRC at 467; Tr. 704-05.

4

Man cars served to transport miners and supplies in and out of the mine. Id. at 465.
Three cars were usually hooked together to go into the mine. Only one car had brakes to stop the
cars. Id. Controls for the hoist cars, which included an emergency stop button (the "e-stop"
button) were located in the hoist shack (or slope shack) and in the hoist house, both on the
surface, and at the bottom of the slope inside the mine. Also, some o.f the hoist cars had e-stop
buttons on their front compartments. Id. If the e-stop button is pressed, the man cars stop
quickly, generally causing the brakes on the brake car to lock. Id.; Tr. 69-70.

31 FMSHRC63

As a result of Pendley's complaints regarding Creighton and Creighton's reporting the
gun incident, Highland management held a meeting with the two men in the early fall of 2005.
30 FMSHRC at 467. Present at the meeting, in addition to Pendley and Creighton, were
Maynard, mine superintendent Jesse O'Rourke,5 operations manager Dave Webb, union
president Ron Shaffner, and union safety committee chairman Shugg Dyer. Id.; Tr. 75-76.
Pendley and Creighton met separately with the management and union officials, and then all the
attendees met together. 30 FMSHRC at 467. Pendley reiterated many of his complaints, and the
gun incident was also discussed. At management's request, both Pendley's and Creighton's
lockers were searched, and no guns were found. Id. & n.10. At the end of the meeting, Webb
told Pendley and Creighton that he was giving each of them a warning letter. Id. at 467.
Bighland officials as well as the union officials agreed that the letter should contain a strongly
worded warning that future incidents would not be tolerated and future altercations were not
acceptable. Id.
In letters dated October 7, 2005, Highland issued written warnings to Pendley and
Creighton. Id. at 468; R. Ex. 9, 10. The letters, which were identical in substance, stated that, as
result of, ''verbal abuse, disregard for safety rules, and threatened violent behavior to a coworker, you are hereby is-sued this last and final warning." R. Ex. 9, 10 (emphasis in original).
The letters further stated, "Any further abuse, altercations,.orviolations of Company Safety and
Work Rules may lead to ... suspension with intent to discharge." Id. The letters concluded by
stating that, if either Pendley or Creighton had any questions that were not discussed at the
meeting, he should contact Webb, who signed the letter. Id.

B.

The Man Car Incident

No further incidents occurred between Pendley and Creighton for over a month. 30
FMSHRC at 468. On November 29, 2005, Pendley got into the front seat of the middle car of
three cars. One of the other cars had supplies in it. When Pendley was ready to go into the mine,
he pulled the cord adjacent to the cars that released them into the mine. Pendley was the only
miner in the cars. Id. Creighton was on the surface when Pendley got into the car but apparently
was not at the control panel in either the hoist house or the slope shack. Id.
After traveling about halfway into the mine, the cars in which Pendley was riding came to
an abrupt stop. In order to prevent himself from falling out of the car, Pendley leaned to the
ri¥ht, and he felt his back and neck muscles pull. Id. at 468-69. Pendley stayed in the car
approximately five to ten minutes, waiting for the cars to start back up again. The cars started
back, continued the descent to the bottom of the mine, and came to a gradual stop in the usual
manner. Id. at 469.
After Phillips, a miner waiting to unhook the supply car, assured Pendley that no one in
the bottom area of the mine had pressed the e-stop button, Pendley resumed work, although his

5

Larry Millburg succeeded O'Rourke in the position of mine superintendent. Id.
31 FMSHRC64

back bothered him. Id. at 469-70. Pendley reported to his supervisor, Greg Moody, that his back
hurt him. Moody asked Pendley to help in filling out an accident report, and the two went to the
surface. When they got to the surface, they went to the common area where they filled out the
report, which Pendley read and signed. Id. at 4 70.
A short time later, Pendley went tO the hospital by ambulance where he had x-rays taken~
In addition, he was given pain medication. Id. Pendley was also directed to visit a clinic in a
nearby town. Pendley went to the clinic, and the doctor there instructed Pendley not to work for
several days. Id. When Pendley returned to work, he asked Lap Lewis if he was in the area
where the man cars were loaded. Lewis responded that he was not but that Creighton was.
Lewis thought that Creighton had sent Pendley underground, but Pendley told Lewis that he had
sent himself underground. Id.
..
Operations manager Webb heard about the man car incident the day after it happened. He
retained an electrical company to ascertain that the hoist and its safety features had :functioned
properly. As Webb recounted, one of the theories being considered was whether the e-stop
button had been pushed. The electricians concluded that the system was :functioning as it should;
however they were unable to ascertain if the e-stop button had been pushed. Id. at 4 71. After
Webb received the electricians' :findings, he learned that Pendley alleged that Creighton had
pushed the e-stop button. Id. Based on the electricians' report, Webb did not believe that an estop button had been pushed, and he apparently did not ask Creighton about it. Id.
Pendley also requested a copy of the company accident report that he had assisted Moody
in filling out. Highland safety manager Allen denied Pendley' s request, stating that the report
was company property. Allen also added that the Pendley' s description of the accident could not
be accurate. Id. at 470 n.11.
C.

Pendley's December 2005 Complaint to MSHA

On December 15, 2005, following the hoist incident, Pendley went to MSHA. Id. at 471.
According to MSHA investigator Kirby Smith, Pendley spoke to him about a number of things at
the mine, including operation of the hoist and the harassment about which he had been
complaining to management. Pendley had been keeping detailed notes of events at the mine for
the last five months because of the problems he had been having with Creighton. Id. &n.14.
Pendley asked for a copy of Highland's accident report of the November 29 hoist incident, but
MSHA had not yet received one. Id. at 471.

Thereafter, MSHA inspector Michael Moore went to the mine to inspect the hoist. Id.
Moore found nothing wrong with the hoist or the brake car. Contrary to the conclusion reached
by Highland's electrical consultants, Moore concluded that the man car incident could have
occurred by someone hitting thee-stop button. Id.; Tr. 326-27. Smith accompanied Moore on
the inspection and believed that it was common knowledge at the mine that Pendley had gone to

31 FMSHRC65

MSHA. 30 FMSHRC at 471-72. Similarly, Pendley said that another miner had overheard
several miners saying that Pendley had gone to MSHA, initiating the inspection. Id. at 471 n.16.
During the inspection, inspector Moore asked Highland officials about the November 29
hoist incident and whether Highland had filed an accident report. Id. at 4 72. Safety manager
Allen gave Moore an intra-company memorandum that stated that Highland had not yet
determined whether the event was an accident. Id. On December 20, MSHA issued a citation to
Highland for failing to.report the November 29 incident within 10 days of its occurrence. 6
MSHA became concerned that Highland was not reporting all of its accidents as required by
regulation. 30 FMSHRC at 472. As a resultofits audit, MSHA issued four more citations that
charged Highland with failing to report accidents. Id.
D.

Pendley's December 21, 2005, Suspension

The sign-in book where miners record their times of arrival and departure is kept in the
common area, a room that is approximately 20 by 30 feet that is furnished with tables and
benches. Id. at 472, 473 n. 19; Tr. 115-116; R. Ex. 11. A miner's sign-in time determines when
he begins to be paid under the union contract. 30 FMSHRC at 4 72 n.18.
During the latter part of 2005, Pendley routinely worked 12-hour days with eight hours at
regular time and four hours of overtime. Id. at 4 72. Oii December 21, Pendley arrived at the
mine around 12:30 p.m. Id. Pendley signed in between 12:50 and 12:55 p.m., but indicated that
the time was 1:00 p.m. Id. Pendley then went to the bathhouse, picked up some supplies, and
went to the man load area. Id. When he arrived at the man load area, he saw Lap Lewis, who
told him that the man cars were underground and that it would be several minutes before they
returned. Id. Because it was cold, Pendley did not want to wait outside. Id. He. and Lewis went
to the common area to wait. Id. at 472-73. Miner Joe Adamson, who had signed in immediately
after Pendley, was also in the room. Id. at 473. It was common practice for miners to wait inside
when it was cold outside. Id. at 473 & n.20, 490.
Adamson had indicated to Pendley that he wanted to go underground with him when the
man cars arrived. Id. at 473. Adamson and Lewis were sitting in front of Pendley where they
could see the man cars outside of a window~ Id. About 15 or 20 minutes after 1:00 p.m.,
operations manager Dave Webb walked into the room and asked Pendley if he was being paid to
sit there. Id.; Tr. 630. Pendley responded that he was waiting to go underground. 30 FMSHRC
at 473. Webb stated to Pendley, "Not on my time[,] you're not." Id.; Tr. 117. Pendley walked
over to the sign-in book and leaned over to examine it. 30 FMSHRC at 490. Because Pendley
had done nothing out of the ordinary, he did not change the entry in the book. Id. Neither
Adamson nor Lewis spoke to Webb. Id. at 473. Webb then turned and walked out of the room.
Id, The man cars arrived at the load area around 1:30 p.m. Id. Adamson, Lewis, and Pendley

6

MSHA regulations require that reports of injuries or accidents must be filed within I 0
days of their occurrence. 30 C.F.R. § 50.20-1.
31 FMSHRC66

left the common area and went outside where they boarded the man cars and went underground.
Id.
Webb went back to the common area to see if Pendley had changed his time in the sign-in
book. Id. at 474. The bookstill showed that Pendley had signed in at 1:00 p.m. Id. Webb felt
that Pendley was being insubordinate by not changing his time and that he had falsified a
company record. 7 Id. at 4 74. Webb called underground and notified Pendley that he wanted to
see him in his office. Id. When Pendley arrived at Webb's office, in addition to Webb, assistant
superintendent Maynard, safety committeeman Shugg Dyer, and union local president Ron
Shaffuer were there. Id.
Webb spoke about why Pendley had not caught the man load cars to go underground and
then asked Pendley for his side of the story. Id. Pendley denied falsifying the sign-in book but
stated that he needed better representation. Id. at 473, 490. Webb then announced that Pendley
would be suspended for three days for falsifying a company record, the sign-in book. Id. at 47475. Webb then handed Pendley a three-day suspension letter. Id. at 475.
E.

MSHA' s Settlement of Pendley's First Discrimination Complaint and His
Commission Appeal

On December 22, 2005, Pendley filed a complaint with MSHA, alleging that he had been
suspended on December 21 because he requested a copy of Highland's accident report. Id. at
476. On September 25, 2006, following an investigation, the Secretary filed her first
discrimination complaint on Pendley's behalf (Docket No. KENT 2006-506), alleging that he
was suspended for making safety complaints. Id. The Secretary entered into a settlement
agreement with Highland to resolve the discrimination complaint arising out of the suspension.
Docket No. KENT 2006-506. By order dated January 18, 2007, the judge approved the
settlement.
Subsequently, Pendley filed a petition for review of the judge's order in which he argued
that the settlement did not fully compensate him for his loss of wages. Letter dated Feb. 11,
2007. The Secretary then moved to reopen the proceeding. Mot. to Reopen, Feb. 26, 2007. The
Commission directed review in the proceeding on February 26, 2007. On April 3, 2007, the
Commission vacated the judge's dismissal order in Docket No. KENT 2006-506, vacated the
settlement because Pendley was not a party to it, and remanded the case to the judge for
appropriate proceedings. 29 FMSHRC 164, 165-66 {Apr. 2007).

7

Webb testified at trial that he agreed that miners could be paid while waiting for man
cars. However, he objected to Pendley waiting inside, particularly for an extended period,
because miners could wait outside at the slope shed. Id. at 474 nn.23 & 24.
31 FMSHRC67

F.

Pendley's Meetings with the Office Staff on March 19 and 21, 2007

Sometime in early 2007, Pendley became aware that the employee at the mine in charge
of payroll, Fay Hubbert, had questioned certain overtime pay that Pendley claimed. 30 FMSHRC
at 476. On March 19, 2007, Pendley became upset over this and went to the office ofHubbert's
supervisor, Sheila Gaines. Id. Pendley and Gaines discussed the matter, and Pendley became
increasingly agitated over Hubbert's questioning of his pay. Id. Gaines, as Hubbert's supervisor,
explained that part ofHubbert's duties was to review all claims for overtime and ensure that they
were accurate. Id. According to Gaines, Pendley argued that Hubbert had no right to do this,
that what she was doing was not right, and that Gaines would be held accountable, telling her that
"You 're going to take the fall." Id.; TRH Tr. 23 5. Gaines felt uncomfortable because of what
Pe11dley said and how he said it; she felt as if he were planning something. 30 FMSHR.C at 476;
TRH Tr. 235. Another employee who worked down the hall from Gaines' office thought Gaines
might need assistance, but Pendley left. 30 FMSHRC at 476. After the meeting with Pendley,
Gaines reported the meeting to mine superintendent Larry Millburg because the meeting was
"disturbing" to her and it made her "uncomfortable." TRH Tr. 237-38.
Two days later, on-March 21, Pendley resumed the discussion about his overtime with
Fay Hubbert. 30 FMSHRC at 476. It was shortly before 1:00 p.m., and Pendley had not yet
signed in. Id. at 477. Sheila Gaines overheard a heated discussion in the payroll office and heard
Hubbert tell Pendley that he needed to speak with mine superintendent Millburg, who was
handling all questions regarding overtime pay. Id. Pendley then appeared at the door of Gaines'
office and asked to speak to her. Gaines responded that she was very busy, but Pendley entered
anyway. Id.; TRH Tr. 238. Pendley had a copy of the mine sign-in sheet and his pay stub. He
told Gaines that he was not being properly paid, and Gaines told him to leave the sheet and stub
with her and that she would check into it. Pendley continued to insist that his pay was
inaccurate. He left when Gaines received a telephone call. 30 FMSHRC at 477.
After Pendley left Gaines' office, he looked for Millburg, but Millburg was unavailable.
Id. Pendley then went to the bathhouse, dressed for work, and went to the man load area. Id.
Pendley waited for a man car; however, the man cars passed him by without stopping. Lap
Lewis explained to Pendley that MSHA inspectors were in the mine for a section 103(g)
inspection. 8 Pendley noticed a federal inspector; Highland officials, and union personnel sitting
in one of the cars. 30 FMSHR.C at 4 77. Because he would have to wait 15 or 20 minutes for
another car, Pendley decided to go back into the office area to look for Millburg. Id. at 477-78.
During that time, Gaines had called Fay Hubbert to come to her office. Account manager
Roger Wise also came to her office. Id. at 478. Having gone into the building from the man load
area, Pendley overheard the three talking, went into Gaines's office, and began discussing

8

Section 103(g) of the Mine Act provides for an immediate inspection of a mine upon
the complaint of a miner or representative of miners. 30 U.S.C .. § 813(g). The section further
provides that the name of the complaining miner should not be disclosed.
31 FMSHRC68

Highland's rules for overtime pay and how they should be applied. Id. Gaines described Pendley
as "agitated" and "very loud." Id.; TRH Tr. 241. While they µ-ied to explain to Pendley that they
applied the rules for overtime pay given to them by Larry Millburg, Pendley argued that what
they did was "illegal." 30 FMSHRC at 478. Pendley "got in [Wise's] face." Id.; TRH Tr. 279.
Hubbert felt very uncomfortable. 30 FMSHRC at 478; TRH Tr. 265.
Gaines then tried to end the discussion, telling Pendley that he needed to talk to Larry
Millburg. Hubbert then left the office. Pendley continued to press the issue with Wise, who said
that he was not going to continue to listen to Pendley and left. 30 FMSHRC at 478. When Wise
left, he intended to find Millburg to handle the situation. Id. That left Pendley with Gaines, who
felt intimidated by Pendley. Id. According to Gaines, Pendley was "mad" and ''upsee' Id.;
TRH Tr. 243. Pendley continued to talk about the pay situation, and Gaines continued to instruct
him to talk to Millburg. 30 FMSHRC at 478. Gaines finally turned her back to Pendley, and he
left. Id. After Pendley left, Hubbert, Wise, and Gaines locked the doors to the offices to prevent
Pendley from returning. Id.; TRH Tr. 266. Wise said he would get Millburg, who would take
control of the situation. However, Millburg was underground at that time. 30 FMSHRC at 478.
Later that afternoon, Gaines reported the incident to Millburg. Id.
G.

Pendley's Altercation with Creighton

·After Pendley left Gaines' office, he immediately returned to the man load area to go
underground. Id. at 479. Pendley stood outside the slope shack waiting for Creighton to bring
up the cars to the man load area. Id. Lap Lewis was working nearby. Id. Creighton was under
the canopy of the slope shack, sitting on the golf cart in front of the man car controls. 9 30
FMSHRC at 478. The slope shack is open ended with panels on either side, and Pendley stood
outside the canopy on the end nearest the controls. Id. at n.31; R. Ex. 18. Pendley believed that
Creighton was not going to call the man cars to the load area. 10 Therefore, Pendley decided to
use the control inside the slope shack to bring the cars to the man load area. 30 FMSHRC at 479.

9

The hoist control panel contained about 15 buttons, including the red e-stop button and
call button that could send the cars to the charging area or the man load area. In order to push the
man load call button, one had to be positioned in front of the control panel. There was also a
man load call button outside the slope shack that miners could use unless the cars were at the
charger. Testimony established that, when Pendley was waiting for the cars, they were at the
charger. Id. atn.31; Tr. 586-87; 1070-71.
10

While Pendley testified that he waited outside the slope shack for "quite a period of
time," Tr. 157, as the judge noted, the surveillance tape showed that Pendley waited for the man
car for one minute and 20 seconds before moving into the slope shack to push the man car call
button. 30 FMSHRC at 480 & n.33: see Gov't Ex. 3.
31 FMSHRC69

Pendley testified that he walked toward the slope shack with one hand up, 11 reaching
between the golf cart where Creighton was sitting and the controls. He then looked at the control
panel to see if the e-stop button was tagged out and reached to push the man load call button.
According to Pendley, Creighton put his arm against Pendley' s right arm to push it away from
the controls. 30 FMSHRC at 479; Tr. 1055-56, 1070-71. Creighton then began yelling for
foreman Rodney Barker. 30 FMSHRC at 4 79. Pendley stated that, after he pushed the call
button, Creighton said that there was a hoist test going on. Id. at 479-80.
Creighton testified that the surface foreman and a mechanic informed him that they were
on their way to the hoist house and, when the man cars came from underground, they were going
to conduct a safety test of the hoist. After they left, the only other miner in the area was Lap
Lewis, who was preparing to hook up a man car to take supplies into the mine. Id. at 480; Tr.
793-800. Afterthe man cars came from the mine, the hoist test commenced. Creighton's role in
the test was to monitor the slope shack control panel. Pendley was waiting for the man cars,
st{lllding about five to eight feet from Creighton. As Creighton was waiting for the call from the
hoist house to tell him that the hoist test was completed, Pendley charged in with both hands
raised and shoved Creighton out of the way. 30 FMSHRC at 480; Tr. 802-04. Creighton yelled
out that there was hoist test going on and went to the telephone next to the control panel to call
the surface foreman. 30 FMSHRC at 480; Tr. 805. ·
When fore.man Rodney Barker arrived, he separated the two men. Creighton told Barker
what had happened, and Pendley gave his version. 30 FMSHRC at 480-81. According to
Pendley, Creighton put his finger in Pendley' s face, and Pendley asked Barker to tell him to stop.
Id. at 481. When the man cars appeared, Barker told Pendley to get on a car and for Creighton to
move away. Id. Barker told them both to stay away from each other. Pendley then boarded a car
and went underground. Id.
A short time later, superintendent Millburg came out of the mine, and Creighton
motioned to speak to him. Creighton told Millburg that Pendley had come into the slope shack
when a safety check was occurring, pushed Creighton aside, and taken control of the hoist. Id.;
Tr. 1005-06. Millburg also talked to Lap Lewis, who confirmed what Creighton had said. 12 30

11

Security tapes of the yard on March 21 show Pendley turning toward the slope shack
with two arms raised. Gov't Ex. 3. Pendley explained that one of his hands was used for
grabbing the pipe supporting the canopy roof to steady himself, while he used the other hand (the
right hand) to push the man load call button. Tr. 1054-55.
The judge noted that Lewis' trial testim~ny regarding the incident "was informed by
watching the video surveillance tape." 30 FMSHRC at 480-81 n.34. However, the judge noted
that, although the video showed "Pendley standing some distance from the shack and then
advancing toward the slope shack[,]" the judge found the video "inconclusive as to who pushed
first." Id. Lewis testified that he saw Pendley shove Creighton but admitted he was 25 feet away
from the slope shack and that Pendley's back was facing Lewis. Tr. 555, 572, 594.
12

31 FMSHRC70

FMSHRC at 481. Millburg considered it significant that Pendley apparently shoved Creighton
and interfered when the hoist test was going on. Id.; Tr. 1006-07. When Millburg went to his
office, Sheila Gaines told him about the earlier incident involving the office employees. 30
FMSHRC at 481. Millburg drafted a letter, notifying Pendley that he was suspended, subject to
discharge. Id. The letter gave as the reasons for the discipline: "harassment of office staff;"
"interference with safety check;" and "assaulting another employee." Gov't Ex. 4.
Prior to summoning Pendley to his office and presenting him the suspension letter,
Millburg telephoned David Webb, who at this time was director of several mines owned by
Peabody Coal, including Highland. Millburg would speak to Webb about non-routine personnel
matters. Millburg recounted the offenses that Pendley was charged with, and Webb agreed that
discharge was appropriate discipline but indicated that it was Millburg's call since he was present
at the mine. 30 FMSHRC at 481-82 n.35; Tr. 605, 673-75, 1028-29.
H.

Pendley's March 21. 2007. Suspension and Discharge. His Second MSHA
Complaint. and Temporary Reinstatement

Sometime betweeii 3:00 and 4:00 p.m. on March 21, Pendley was directed to come out of
the mine and report to Millburg's office. 30 FMSHRC at 481. Pendley met up with union
officials Shugg Dyer and Ron Shaffner. Id. When the three miners arrived at Millburg's office,
assistant superintendent Scott Maynard, union safety committee member David Acker, and
Millburg were already there. Id. at 482. Millburg gave Pendley the suspension letter. Id. After
receiving the letter, Pendley apparently left Millburg's office. Id.; Tr. 176. Thereafter, two of the
union representatives came and got Pendley from the bathhouse to return to Millburg's office and
respond to the charges in the letter. 30 FMSHRC at 482; Tr. 176-77. When they reached the
office, Maynard was still there with Millburg. Pendley indicated that with regard to harassing the
office staff, he had been discussing his pay. 30 FMSHRC at 482. As to interfering with the hoist ·
test, Pendley stated that he had looked on the control panel for any indicators that a test wa5
going on and did not see any. Id. Finally, with regard to assaulting Creighton, Pendley denied
that it happened. Id. Pendley then left Millburg' s office, changed his Clothes~ and went home.
Id.
Sometime after Pendley's departure, MSHA inspector Fazzolare completed his section
103(g) inspection and issued a citation alleging a violation of 30 C.F .R. § 75 .400 for
accumulations of coal. Id. Inspector Fazzolare had not given anyone from Highland a copy of
the section 103(g) complaint when he arrived at the mine, because he had inadvertently put
Pendley's name on it. Id. at 482-3 n. 36. Millburg was later given a copy of the citation
Fazzolare had written. Id. at 483.
·

31FMSHRC71

The day ~fter his suspension, Pendley filed a complaint with MSHA. 13 30 FMSHRC at
483. Pendley's discharge became effective March 24. Id. at 460. Following an investigation,
MSHA filed a second complaint against Highland (Docket No. KENT 2007-383-D). Id. The
Secretary filed a petition for temporary reinstatement of Pendley, and, following a hearing,
Highland was ordered to reinstate Pendley in June 2007. 29 FMSHRC 424 (May 2007) (ALJ).
I.

Pendley's Post-Reinstatement Working Conditions

After Pendley returned to work at Highland following the judge's temporary
reinstatement order, he complained about changed working conditions, including closer
supervision ("birddogging"), additional job duties, and someone posting his job duties on the
company bulletin board. 30 FMSHRC at 483.
Pendley's supervisor, Steve Bockhorn, testified that Pendley's attitude changed after he
returned to work. Tr. 861-62. Both Bockhorn and shift foreman David Howell believed that
Pendley was working more slowly than before his discharge. 30 .FMSHRC at 484-85. Howell
observed Pendley driving his vehicle "extremely slow" (sic). Id. at 485. Following his
reinstatement, Pendley decided that he did not want to work overtime. Id. at 484. Assistant
superintendent Maynard received complaints from managers about Pendley' s slowness. In
response,. Maynard told the managers just to ensure that Pendley did his job. He never instructed
anyone to be tougher on Pendley. Id.
Pendley believed that, after his reinstatement, he was given the additional assignments of
washing equipment and taking oil to units in addition to his regular duties of delivering supplies.
Id.; Tr. 184-86. All the jobs that Pendley was asked to do were within his job classification. 30
FMSHRC at 484. He had occasionally been asked to wash equipment before his discharge. Id.
Foreman Howell told Pendley to let him know if he could not get all his work done by the end ·of
the shift, so Howell could get someone else to do it. Id. at 485.
Bockhorn had Pendley' s job duties specified in a letter after Pendley questioned one of
his assignments when he returned to work. Id.; Gov't Ex. 5. According to Millburg, assistant
superintendent Maynard told him there was some confusion about Pendley's job duties and
Maynard thought it best to lay out Pendley's duties so there would be no confusion. 30
FMSHRC at 485. Other parts runners were given letters describing their duties. Id. However,
Pendley' s was the only one posted on the bulletin board. Bockhorn did not know who posted it,
and he had it removed as soon as Pendley complained about it. Id. at 485-86.

13

Pendley also grieved his suspension and discharge under the union contract, and the
matter was taken to arbitration. See R. Ex. 25 at 1. The arbitrator decided that Highland had
shown "just cause" for disciplining Pendley for the reasons given in the March 21 letter and that
discharge was appropriate discipline. Id. at 15.
31 FMSHRC72

J.

The Judge's Decision

Based on the credited facts and inferences drawn from them, the judge concluded that
Pendley's three-day suspension on December 21, 2005, was discriminatory and in violation of
the Mine Act. The judge concluded that Pendley was suspended because of his safety complaints
to MSHA and because of his protected safety complaints to Highland management. 14 30
FMSHRC at 489-94.
The judge further concluded that Pendley's March 21, 2007, suspension and discharge
were not taken in response to Pendley's MSHA complaints, his pending litigation before the
· Commission, or his prior safety complaints. Id. at 494. The judge found that Pendley' s
"confrontations" with the office staff on March 19 and 21 played pivotal roles in Millburg's
decision to discharge Pendley "and well they should." Id. The judge further noted that Pendley
''was disruptive, irrational, and orally aggressive." Id. Moreover, the judge found that Pendley
knew that, after the March 19 meeting with Sheila Gaines, he needed to meet with Millburg on
the overtime issue but kept pressing the issue with the office staff instead. Id. at 495. The judge
also noted that Pendley had previously been warned in the October 5, 2005, letter that "verbal
abuse" would lead to his discharge. Id.
The judge found that Millburg had another ."compelling" reason to discharge Pendleythe altercation with his long-time antagonist, Creighton. Id. While acknowledging that it was .
disputed as to who first pushed whom, the judge found that Pendley "did not have to charge the
slope shack," and that the situation could have been avoided if Pendley had not chosen to place ·
himself "toe to toe with Creighton." Id. The judge further noted that the October 5 warning
letter indicated that further "altercations" could lead to Pendley' s discharge. Id. Finally, the
judge found that the Secretary failed to establish that the section 103(g) inspection, which
occurred on March 21, had anything to do with Highland's decision to discharge Pendley. Id. at
495-96.
The judge dismissed the Secretary's allegations of discrimination that Pendley received
additional job duties, was more closely supervised, and was treated adversely because a letter to
him concerning his job duties was posted on the company bulletin board. Id. at 496-98. The
judge found that Pendley's job duties were within his job classification and, as Pendley even
agreed, properly assigned to him. Id. at 496-97. Further, the judge found that there was no
evidence that Highland assigned Pendley job duties to punish him for seeking reinstatement or
for other protected activity. Id. at 497. As to the allegation of more intense supervision, the
judge found that Highland had legitimate concerns about Pendley's work pace when he returned
and that its post-reinstatement supervision was not improper. Id. With regard to the letter, the
judge found that it was taken down as soon as Pendley notified his supervisor of its presence. Id.
14

Highland did not appeal the judge's conclusion that it discriminated against Pendley
when it suspended him on December 21, 2005. Accordingly, that matter is not before the
Commission on review.
31 FMSHRC 73.

II.

Disposition
The Secretary appealed the judge's conclusion that Highland did not violate section
105(C) of the Mine Act, 30 U.S.C. § 815(C), when it suspended Pendley, with intent to
discharge, on March 21, 2007. S. PDR at 1. The Secretary argues that extensive evidence
supports a finding that Highland was motivated, at least in part, by Pendley' s protected activity
when it suspended him. The Secretary argues that Pendley's filing of a petition for review to
appeal the Secretary's settlement of the December 21, 2005, suspension, culminating in the
Commission's granting of the petition on February 26, 2007, was "the straw thatbroke the
camel's back." S. Br. at 19. The Secretary further argues that Highland seized upon the events
of March 19 and 21 to rid itself of Pendley because of his persistence in engaging in protected
activity. S. Br. at 19-26. The Secretary also contends that the judge, in upholding the
suspension, improperly relied on the October 2005 disciplinary warning letter to Pendley,
reformulated Highland's accusations against Pendley, and erred by failing to correctly: apply the
Commission's legal test for mixed motive discrimination cases. Id. at 26-34. The Secretary
concludes by asking the Commission to vacate the judge's decision and remand the proceeding
for a complete and proper analysis. Id. at 34.
Pendley appealed the judge's determination that Highland did not discriminate against ..
P~dley following his temporary reinstatement in addition to challenging the judge's conclusion

regarding the March 21 suspension. P. PDR at l. Pendley argues that the judge applied the
incorrect legal standard in weighing whether the assignment of dutiesto Pendley following his
reinstatement was discriminatory. P. Br. at 2-6. Pendley also argues that the judge misstated his ·
testimony regarding his job duties. Id. at 4-5. Pendley concludes by requesting that the
Commission vacate the judge's decision and remand the case to the judge to analyze the record
evidence under the correct legal standard. Id. at 6.
In response, Highland argues that substantial evidence supports the judge's finding that
the suspension and discharge of Pendley were not discriminatoty. H. Br. at 8. fu support,
Highland asserts that there is nothing in the record to support a conclusion that management
knew about Pendley' s filing a PDR in the pending discrimination case. Id. at 8-12. Further,
Highland argues that the Secretary essentially wants the Commission to overturn the judge's
crediting of Highland's witnesses who testified concerning Pendley's misconduct. Id. at 13.
Highland denies that it did not adequately investigate the incidents that led to Pendley' s
March 21 suspension and discharge. Id. at 13-15. Highland challenges the Secretary's position
that the judge erred by improperly relying on the October 2005 disciplinary warning to Pendley,
by reformulating Highland's reasons for suspending Pendley, or by improperly applying the
Commission's legal test for discrimination cases. Id. at 15-22. Finally, Highland states that,
during the period following Pendley's reinstatement, there was no change in Pendley's job duties
that constituted adverse action. Id. at 22-23. Highland concludes that the Commission should
affinn the judge.
31 FMSHRC74

A.

The March 21 Suspension and Discharge

Section lOS(c)(l) of the Mine Act states in relevant part that "[il]o person shall discharge
or in any manner discriminate against ... or othetwise interfere with the exercise of the statutory
rights of any miner." 30 U.S.C. § 81S(c)(l). A complainant alleging discrimination under
section lOS(c)(l) of the Mine Act establishes a prima facie case of prohibited discrimination by
presenting evidence sufficient to support a conclusion that the individual engaged in protected
activity and that the adverse action complained of was motivated in any part by that activity. See
Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Secy ofLabor on
behalf ofPasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev 'don other
grounds, 663 F.2d 1211 (3d Cir. 1981); Secy ofLabor on behalfofRobinette v. United Castle
Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). The operatormayrebuttheprima facie case by
showing either that no protected activity occurred or that the adverse action was in no part
motivated by protected activity. See Robinette, 3 FMSHRC at 818 n.20. If the operator cannot
rebut the prima facie case in this manner, it nevertheless may defend affirmatively by proving
that it also was motivated by the miner's unprotected activity and would have taken the adverse
action for the unprotected activity alone. See id. at 817-18; Pasula, 2 FMSHRC at 2799-800; see
also Eastern Assoc. CoalCorp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying
Pasula-Robinette test).

On the record in this proceeding, the judge concluded that Pendley' s complaints to
MSHA, including his prior discrimination complaint, were protected activities. 30 FMSHRC at
493. The judge also found that many of Pendley's complaints to management about safety issues
that arose out of his dispute with Creighton were also protected. Id. at 491-93. The judge further
noted Pendley' s administrative appeal to the Commission in which he objected to the agreement
between the Secretary and Highland that settled the complaint. 15 Id. at 494. Nevertheless, the
judge rejected the Secretary's position that Highland was motivated by "[k]nowledge of these
factors" in taking adverse employment action against Pendley on March 21. Id. Rather, the
judge relied upon direct evidence concerning the events on March 19 and 21 to conclude that the·
Secretary had failed to establish a prima facie case. Substantial credited evidence supports the
judge. 16

15

The judge specifically rejected any reliance on Millburg's knowledge of the section
103(g) inspection that took place on March 21 because "Millburg did not know about the section
103(g) inspection and the resulting citation until after he made the decision to suspend Pendley."
30 FMSHRC at 496. In addition to finding a lack of direct knowledge on Millburg' s part, the
judge also noted that there was no basis for implying knowledge that Pendley requested the
inspection. Id.
16

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
31FMSHRC75

The credited testimony shows that on March 19, 2007, Pendley initially contacted Fay
Hubbert, as payroll head, because she had questioned whether he was authorized to work
overtime. TRH Tr. 261. He next showed up at the office of Highland controller Sheila Gaines.
IQ. Gaines' words, Pendley was "upset," "very vocal and very loud." Id. at 232-34. Pendley
asserted that there were a lot of bad things going on and that Gaines would "take the fall."
Gaines began to feel more and more uncomfortable. Before Pendley left, Gaines told him to
discuss the matter with Larry Millburg. Id. at 237. Later that day, Gaines reported the
confrontation to Millburg, told him that she felt uncomfortable with Pendley, and that she
thought he was planning something. Id. at 237-3.8.
There is no record evidence that Pendley sought out Millburg to discuss the overtime
issue, as Gaines had suggested. Rather, on March 21, Pendley again sought out Hubbert on the
overtime issue. Gaines overheard Pendley talking to Hubbert in a heated manner. TRH Tr. at
239. Pendley then appeared at Gaines' office. He tossed his paycheck stub and a copy of the
sign-in sheet onto her desk and asserted that he was not being paid properly. Id. at 240. After
Pendley left her office, he signed in and got ready for work, but returned to the office area after
he could not get in the man cars going underground. 30 FMSHRC at 477-78. Roger Wise and
Hubbert had assembled in-Gaines' office when Pendley came in. TRH Tr. 241. Pendley was
very loud and agitated, arguing that the overtime policies were "illegal." Pendley was told
repeatedly to take the matter up with mine superintendent Larry Millburg. Id. at 241, 278. At
one point, Wise. testified that Pendley moved toward Hubbert, who got up and left. Pendley then
approached Wise and got within IO to 12 inches of Wise's face. Id. at 278~79. Wise testified
that "Normally, we don't have that type of aggression - - in the office." Id. at 280. Wise left to
find Millburg. Id. Pendley then walked around the corner of Gaines' desk. She felt intimidated
and that Pendley was "out of control." She turned her back to Pendley to work on her computer,
and Pendley left. Id. at 243. Then, the doors to the office section of the building were locked so
that Pendley could not return. Id. at 266. After Millburg returned from the mine, Gaines
reported to him that there had been "another incident" involving Pendley." Id. at 245. At the
time Gaines found Millburg in his office, he was investigating the shoving incident involving
Creighton and Pendley. Id.

Our review of the record does not disclose any basis for overturning the judge's
credibility resolutions. 17 Based on this credited testimony, the judge found that ''The office

Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
17

A judge's credibility determinations are entitled to great weight and may not be
overturned lightly. Fanner v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992);
Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). The Commission has recognized
that, because the judge "has an opportunity to hear the testimony and view the witnesses[,] he
[or she] is ordinarily in the best position to make a credibility determination." In re: Contests of
Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) (quoting
31FMSHRC76

incidents of March 19 and 21 played critical roles in Millburg's decision to suspend Pendley with
an intent to discharge, and well they should. Pendley was disruptive, irrational, and orally
aggressive." 30 FMSHRC at 494. The judge further found that as of March 19, Pendley knew
that Hubbert and Gaines did not have authority to resolve overtime pay issues. Rather, Pendley
knew he needed to talk to Millburg. Yet, he persisted in raising the matter on March 21, "again
in a loud, agitated and irrational way." Id. at 495.

In addition to his findings as to what occurred when Pendley confronted the office staff
on March 19 and 21, the judge also noted that Pendley had been warned in the October 7, 2005,
letter concerning his "continued verbal abuse" and that further abuse "may lead to your
suspension with intent to discharge." Id.; R. Ex. 10. The judge found it significant that Pendley
"was on notice" of the consequences of engaging in conduct noted in the letter. 30 FMSHRC at
495. Based on the letter, the judge noted that "Pendley acted at his peril" when he angrily
confronted the office staff on two occasions. Thus, the judge further concluded that it was
appropriate to consider the confrontations·as a basis for discharge because of this notice to
Pendley. Id.
The Secretary challenges the judge's findings and conclusions on several grounds.
However, our review of the record and relevant precedents compels us to conclude that the
Secretary's objections are without m~rit.
The Secretary contests the judge's consideration of the warning letter. The Secretary
argues that the judge cannot rely on evidence that Millburg was unaware of when he made his
decision to discipline Pendley on March 21. S. Br. at 27-29. However, the Secretary
misunderstands the judge's limited reliance on the letter. The judge did not find or suggest that
Millburg knew of the letter or could have relied on it. Rather, the judge noted that Pendley was
aware of the consequences for engaging in similar conduct for which he was reprimanded in the
October 2005 letter. Moreover, the judge's consideration of the prior disciplinary warning was
appropriate under the Pasula-Robinette analysis. 18 See also Bradley v. Belva Coal Co., 4

Ona Corp. v. NLRB, 729 F.2d 713, 719 {11th Cir. 1984)), ajf'd sub nom. Sec'y ofLabor v.
Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998). Nonetheless, the Commission
will not affirm such determinations if they are self-contradictory or if there is no evidence or
dubious evidence to support them. Id. at 1881 n.80; Consolidation Coal Co., 11 FMSHRC 966,
974 {June 1989).
18

Our colleague concludes that she would remand this case for the judge to reconsider
the discharge, ''without the letter playing any part in [his] consideration of Millburg' s mental
process in arriving at his discharge decision." Slip op. at 25. However, such a remand would
inevitably lead to the same result in light of the judge's findings regarding Pendley's
confrontation with the office staff and his altercation with Creighton. Significantly, nowhere
does our colleague indicate any disagreement with the judge's :findings in these areas and the role
they played in Millburg's decision to discharge Pendley.
31FMSHRC77

FMSHRC 982, 993 (June 1982) (an operator can cany its burden under Pasula by showing, for
e:xample, past discipline consistent with that meted out, the miner's unsatisfactory work record,
prior warnings to the miner, and personnel rules or practices forbidding the conduct in question).
As the judge further found, Pendley's misconduct on March 21 was not limited to his
interaction with the office staff. Millburg had "another compelling reason" to discipline Pendley
because of''yet another run-in" with Creighton. 30 FMSHRC at 495. On this matter, the judge
did not resolve the conflicting testimony as to who first pushed whom. Id. The judge, however,
found it persuasive that Pendley chose to "charge" the slope shack, "putting himself in a
situation where an altercation was all but certain to occur." Id. The judge further noted that
Pendley had been warned that further altercations could lead to his discharge. Id.; R. Ex.10.
Finally, the judge found it significant that Millburg knew of the recent confrontation with
I{ubbert, Wise, and Gaines that occurred just minutes before his altercation with Creighton. 30
FMSHRC at 495. Substantial evidence supports the judge's finding that Pendley's discipline
was justified, and we see no reason to disturb his findings.
The Secretary also argues that the judge impermissibly "reformulated" Highland's
justification for disciplining Pendley because the judge referred to the incident with Creighton as
an "altercation" rather than an "assault." S. Br. at 29-36. We conclude that the specific label that
the judge attached to that incident is not significant here. 19 The pertinent point is that the judge,
in weighing the sufficiency of the reasons that Highland gave for Pendley's discharge, relied on
the trial testimony given by the Secretary's and Highland's witnesses concerning who was the
aggressor in the dispute and found facts indicating that Pendley was at fault because he put
himself in a situation where an altercation with Creighton was all but certain to occur.
30 FMSHRC at 495. Although the judge did not resolve the conflicting testimony as to whether
Pendley pushed Creighton, he made the critical determination that Pendley initiated the incident
with Creighton when Pendley decided to "charge the slope shack," thereby precipitating the
ensuing altercation. Id.
The Secretary additionally argues that the judge erred when he found that reliance on
Pendley's interference with the hoist test was not "crucial to the validity of the disciplinary
19

In support of her position that the judge improperly recast the basis for Pendley's
discharge, the Secretary relies on the Commission's decision in Secretary ofLabor on behalfof
McGill v. US. Steel Mining Co., 23 FMSHRC 981 (Sept. 2001 ). The McGill case is readily
dii;tinguishable from the instant proceeding. In McGill, the judge had found that the operator had
established an affirmative defense to a complaint of discrimination, notwithstanding that the
reasons relied on at the time of discharge and established at trial (insubordination and use of
profanity) were completely different substantively from the reasons relied on by the judge in his
decision (threats to file a grievance, failure to stop walking away, and union status). Id. at 987-.
88. fu contrast to McGill, the judge's findings with regard to the altercation between Pendley and·
Creighton are well within the parameters of, and consistent with, the assault charge in the
March 21 letter. Compare McGill, 23 FMSHRC at 989.
31FMSHRC78

action" because of the other more serious misconduct. S. Br. at 30-31; see 30 FMSHRC at
495 n.43. The judge concluded that the two other reasons Millburg relied on for discharging
Pendley - his confrontation with the office staff and his altercation with Creighton - were
sufficient grounds for determining the validity of the disciplinary action under the Mine Act. Id.
With regard to the interference with the hoist test allegation, the judge noted that the control
panel was not tagged and Creighton did not advise Pendley of the test until after he pushed the
man car call button. Id. Contrary to the Secretary's argument, S. Br. at 30, the judge did not find
that the hoist test allegation was pretextual. 20 Rather, the judge simply found ample grounds for
sustaining the discipline without relying on the interference allegation. Moreover, the judge's
role in examining the reasons for Pendley's discharge under the Mine Act does not require that
he adopt every reason given by the operator in order to sustain the discipline under the collective
bargaining agreement. 21

In addition to the Secretary's arguments relating to the specific reasons given for
Pendley' s March 21 suspension and discharge, she also argues that the judge failed to fully
analyze the adverse action under the Pasula-Robinette test. Our reading of the judge's decision
indicates that he made findings that are sufficient with regard to the requirements in Commission
discrimination cases. First, thejudge found that Pendley engaged in activities protected under
the Mine Act, including making safety complaints and filing a discrimination complaint. 30
FMSHRC at 491-94. The judge further noted Pendley' s subsequent protected activities, ....
including his involvement in a section 103(g) investigation and his filing of an appeal with the
Commission because of the Secretary's and Highland's settlement of his December 21, 2005,
suspension. Id. at 494. Finally, and most significantly, the judge concluded that Highland's

20

Pretext may be found where the asserted justification for discipline is ''weak,
implausible, or out ofline with the operator's normal business practices." Sec'y ofLabor on
behalfofPrice & Vacha v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990) (citing
Haro v. Magma Copper Co., 4 FMSHRC 1935, 1937-38 (Nov. 1982)); see also Moses v. Whitely
Dev. Corp., 4 FMSHRC 1475, 1481-82 (Aug. 1982) (pretext found where defense of poor
performance was so weak as to make the defense pretextual). "Once it appears that a proffered
business justification is not plainly incredible or implausible, a finding of pretext is
inappropriate. . . . If a proffered justification survives pretext analysis and meets the first part of
the Pasula affirmative defense test, then a limited examination of its substantiality becomes
appropriate." Sec'y ofLabor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508,
2516 (Nov. 1981).
21

The arbitrator in the grievance proceeding, who addressed whether Pendley was
terminated for "just cause" under the union contract, concluded that Pendley' s "unilateral, blatant
failure to check with Creighton or Lewis as to the availability of the hoist car was reckless and in
disregard of his own safety and others." R. Ex. 25 at 14. Thus, even though the judge found that
this reason for Pendley's discipline was unnecessary for his determination, the arbitrator's
treatment of the defense offers substantial record support for concluding that the hoist test
interference charge is not deemed pretextual under the rationale of Chacon.
31FMSHRC79

knowledge of Pendley' s protected activities did not motivate Highland to act adversely against
Pendley. Id. Rather, the judge concluded that Pendley was disciplined on the basis of his
unprotected activity alone. Id. at 494-95. Having concluded that, based on the evidentiary record
before him, Highland was not motivated by Pendley's protected activities, the judge's analysis
was complete under Fasula-Robinette. See Driessen, 20 FMSHRC at 329-31 ·(complainant failed
to establish a prima facie case because substantial credited evidence supported judge's
conclusion that the operator was in no part motivated by the complainant's safety complaints but
rather complainant was terminated solely for insubordination).
The Secretary's argument that the judge's analysis was inadequate is premised in large
measure on her disagreement with the fundamental conclusion that Highland's suspension and
discharge of Pendley were not motivated in any way by protected activities. In particular, the
Secretary in her brief relies extensively on circumstantial evidence to establish that Highland had
an unlawful motive in suspending and discharging Pendley. S. Br. at 19-26, 32-33. However, in
this proceeding thejudge relied on direct evidence to establish Highland's non-discriminatory
reasons for terminating Pendley. 30 FMSHRC at 494-96. Therefore, ''use of circumstantial
evidence to bypass the judge's fact findings on the pivotal issue of motivation is improper."
Driessen, 20 FMSHRC at-330 n.9; see also Sec '.Y ofLabor on behalf of Garcia v. Colorado
L(lva, Inc., 24 FMSHRC 350, 354 (Apr; 2002} ("consideration of indirect evidence when
examining motivational· intent necessarily involves the drawing of inferences").
Moreover, even if the judge had found that Millburg was motivated in any part by
Pendley' s protected activities, the record amply supports the conclusion that Highland would
have taken the adverse employment action in any event because of unprotected activity alone.
Secy ofLabor on behalf ofPrice & Vacha v. Jim Walter Res., Inc., 14 FMSHRC 1549, 1555-56
(Sept. 1992). fudeed, in the Secretary's brief, she concedes that the judge rejected her position
that Pendley was discharged because ofhis protected activities, noting, "The [judge] disagreed,
finding either that Highland was not motivated in any part by Pendley's protected activity or that
Highland would have discharged Pendley for his unprotected activity alone." S. Br. at 3 (citing
30 FMSHRC at 494-96). In this regard, we additionally find that substantial evidence supports a
conclusion that Highland affirmatively defended against the Secretary's discrimination case by
proving that it would have discharged Pendley solely because of his confrontation with the office
staff and his altercation with Creighton for the same reasons that we have concluded Highland
rebutted the Secretary's prima facie case of discrimination. See also Chacon, 3 FMSHRC at
2512-13, 2516-1 7 (operator's reason for miner's discharge analyzed as a rebuttal to Secretary's
prima facie case and as an affirmative defense).

In sum, we conclude, in agreement with the judge, that Lawrence Pendley was· suspended,
with intent to discharge, on March 21, 2007, solely because of the incidents that occurred that
day in connection with the office staff and Creighton.

31FMSHRC80

B.

Post-Reinstatement Working Conditions

Pendley' s allegations of changed conditions of employment essentially involved three
areas - more intense supervision when Pendley returned to work ("birddogging"), changed job
responsibilities, and Highland's posting a letter identifying Pendley's job responsibilities.
In addressing whether Pendley was more closely supervised, the judge found that credited
trial testimony established that Highland supervisors were worried about the amount of time that
it took Pendley to perform his assigned work after he was reinstated. See Tr. 869 (Bockhorn),
905-06 (Howell), 931 (Maynard). Based on this credited testimony, the judge found that
"Pendley worked at a slower pace when he returned" and that Highland had "legitimate"
concerns about Pendley's work pace. 30 FMSHRC at 497. In light of these findings, the judge
concluded that Highland's post-reinstatement supervision of Pendley was not improper. Id. We
see no reason to disturb the judge's credibility resolutions in this area.

As to the allegation of increased workload, the judge found that none ofPendley's work
assignments involved jobs outside of his classification under the union-labor agreement. 22 30
FMSHRC at 497; Tr. 257: Further, as the judge found, Pendley was never asked to complete
more work assignments than he could accomplish during a regular shift of eight hours. 30
.FMSRHC at 497; Tr. 255. Pendley admitted that, upon his reinstatement, he voluntarily chose
not to work overtime, essentially decreasing his workday from 12 hours to eight. 30 FMSHRC at
497 n.46; Tr. 256; 919. Most significantly, the judge concluded that there was no evidence to
support a finding that Pendley was assigned work to punish him for seekirig reinstatement or for
any other protected activity. 23 30 FMSHRC at 497. Compare Sec '.Y ofLabor on behalfof
Glover v. Consolidation Coal Co., 19 ·FMSHRC 1529, 1534-35 (Sept. 1997) (transfer of miners
found to be unlawful where new position was less desirable and more hazardous and the adverse
action was motivated by protected activity). Substantial evidence supports the judge. 24

22

In particular, Pendley objected to the assignment of washing the "nurse" car that was
used to deliver oil. Tr. 184. See Gov't Ex. 5.
23

At least one other supply runner at Highland testified at the hearing that he and the two
other runners including Pendley (each runner worked on a different shift), were assigned the task
of washing the oil car and supply centers. Tr. 837-40.
24

Our colleague relies on an apparent incident involving Pendley being instructed to
move a pallet of glue by hand to conclude that we should vacate the judge's decision so that he
can reevaluate the post-reinstatement evidence. Slip op. at 28. Pendley testified for the first
time, during the Secretary's rebuttal case, that an unidentified '1nan" told him not to take a
forklift to load the glue. Tr. 1081-82. However, the Secretary did not address the incident in her
post-trial brief to the judge (Pendley did not file a separate brief before the judge), S. PostHearing Br. at 51-54, and neither the Secretary nor Pendley raised the incident in their briefs to
the Commission. See P. Br. at 1-5. In these circumstances, we do not see how the judge's
31FMSHRC81

Finally, with regard to the posting of Pendley's job duties, foreman Steve Bockhorn
explained that Pendley's job duties were put in writing when he was reinstated because Pendley
raised a question about his duties. Tr. 870-71, 926-28; Gov't Ex. 5 .. Other non-production
employees received letters specifying their duties as well. Tr. 929; Gov't Ex. 6. Thus, mechanic
R,oger Grace also received a letter specifying his job duties, including the task of washing the oil
car. Tr. 837-41. When Pendley saw his letter posted on the company bulletin board,25 he spoke
to Bockhorn, and the letter was immediately taken down. 30 FMSHRC at 497; Tr. 190-91,
876-77. In these circumstances, the judge properly concluded that the letter was. removed as soon
as Pendley complained to his supervisor and, therefore, "It would be a stretch indeed to find this .
mistake, which was quickly and fully rectified, constituted adverse action." Id.; see also Sec '.Y of
Labor on behalfofJenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847-49 (Aug. 1984)
(letter posting not deemed unlawful under section 105(C) where second element of prima facie
case not proved in light of no adverse action; also mine management was found to be acting in
"good faith").
Pendley argues before the Commission that the judge's analysis of the reinstatement
cQnditions under Pasula-Robinette is inadequate. P. Br. at 3-4; P. Reply Br. at4. More
specifically, Pendley argues that the judge failed to address whether Pendley was involved in
protected activity that led to the adverse employment conditions. The judge made extensive
findings with regard to the protected nature of Pendley's activities that preceded his March 21.
suspension and discharge. 30 FMSHRC at491-93. In addition, the judge noted that the
Secretary alleged new acts of discrimination "as a result of Pendley's reinstatement," and the
judge pointedly referenced his conclusion of no discrimination "since his reinstatement." Id. at
496 & n.44. Moreover, the judge would not have addressed the second element of the PasulaRobinette analysis - whether an adverse employment action occurred - if he had not found that
Pendley was involved in protected activity. In sum, we agree with the judge that none of the
post-temporary reinstatement events are discriminatory under section 105(C) and PasulaRobinette.

determination not to address this incident is reversible error or a basis for remand.
25

The letter was actually taped to the outside of a locked glass case; Highland job
postings were placed inside of the case. Tr. 275-76, 876-77.
31FMSHRC82

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

31FMSHR.C83

Commissioner Jordan, dissenting:
In ruling that Highland was motivated solely by Lawrence Pendley' s unprotected activity
when it discharged him, the judge in this case improperly relied on evidence which the operator
admitted was not a factor in its termination decision. In addition, the judge failed to consider
certain testimony regarding work assigned to Pendley and other miners, testimony which could
indicate anti-safety reporting animus by the operator. Finally, the judge applied an incorrect legal
analysis to the evidence of Pendley's work assignments that he did discuss. Consequently, for
the reasons outlined below, I would vacate the judge's decision and remand the case to him.
1.

The Judge Improperly Relied on the October 2005 Disciplinary Letter

The judge found that Pendley' s protected activity did not motivate Highland's decision to
discharge him. 30 FMSHRC at 494. In reaching this conclusion, the judge focused primarily on
conduct by Pendley that the judge believed warranted his termination. Id. at 494-95. In his
analysis of the confrontational behavior the operator claimed was the basis for Pendley' s
discharge, the judge referred to the "last chance letter" that David Webb, Highland's operations
manager, issued to Pendley in October 2005. Id. at 495 1:
On October 7, 2005, Pendley was warned in writing [that]
''verbal abuse" on his part might lead to his suspension with intent
to discharge. Resp. Exh. 10. Although he was on notice of the
consequences, he persisted in the very behavior about which he
was warned. Perhaps he just could not help himself, but he
certainly knew his behavior could lead to the discipline he
ultimately received. Pendley acted at his peril ....

Id.
Although it appears that the judge took the letter into account in ruling that Pendley's
protected activity played no role in Highland's decision to discharge him, it is undisputed that
Larry Millburg, the Highland official who fired Pendley, did not know the warning letter existed
until after he issued the termination letter. When asked if he knew of the warning letter at the
time he issued Pendley the written suspension with intent to discharge, Millburg replied
unequivocally, ''No, I did not know about- about this last and final written warning." TRH Tr.
211-212.
The judge's consideration of the warning letter when examining Millburg's motivation
was erroneous. Highland readily admits that, "[t]he law holds that Millburg's disciplinary

1

The judge had also discussed the letter at length in his factual findings. See 30
FMSHRC at 467-68.
31FMSHRC84

decision must be judged on the basis of what Millburg believed at the time of the decision ...."
H. Br. at 17 (emphasis added). As counsel for Highland acknowledged at oral argument before
the Commission "case law clearly says that when assessing a disciplinary action ... you look at
the mindset of the decision-maker." O.A. Tr. at 62. Moreover, the First Circuit has emphasized,
"an employer cannot avoid liability in a discrimination case by exploiting a weakness in an
employee's credentials or performance that was not known to the employer at the time of the
adverse employment action (and that, therefore, could not have figured in the decisional
calculus)." Perkins v. Brigham & Women's Hosp., 78 F.3d 747, 751 (1st Cir. 1996).2
The mindset of a supervisor determining the discipline to be meted out to an employee
the supervisor knows to be the recipient of a "last chance letter" is obviously different from the
mindset that would be employed if that supervisor was unaware of a prior warning. The
supervisor in the first scenario is likely to engage in little or no weighing of factors - indeed
might consider his or her hands to be tied. A supervisor in the second scenario, however, would
undoubtedly consider him or herself to have more leeway in deciding the appropriate
punishment. Such a supervisor would likely consider many factors before making a decision.
The issue in this case is whether Pendley' s protected activity was a factor that entered into
Millburg' s decision to discharge him. Close scrutiny of all pertinent evidence is required in
order to answer that question. The manner in which the evidence is sifted and weighed, however,
may well be affected by whether a judge believes the decision-maker was operating within the
confines of a "last chance letter."
Because Millburg was not aware of the letter when he terminated Pendley, his motivation
for the discharge must be viewed without reliance on this evidence. The judge's determination
as to whether Millburg was motivated solely by Pendley' s unprotected activity should thus be
performed without the letter playing any part in the judge's consideration ofMillburg's mental
process in arriving at his discharge decision. The judge's reference to the letter leaves me unsure
that this occurred. 3 Consequently, I would remand the case to the judge for such an analysis.

2

My colleagues claim that the judge's consideration of the prior disciplinary warning
was appropriate. Slip op. at 17. They rely on Bradley v. Belva Coal Co., 4 FMSHRC 982, 993
(June 1982), in which the Commission stated that an operator may carry its burden by showing
past discipline consistent with that meted out, the miner's unsatisfactory work record, prior
warnings to the miner, and personnel rules forbidding the conduct in question. In Bradley,
however, there was no indication that such evidence should be taken into account ifit was
unknown to the decision-maker who took the adverse action against the complainant.
3

The majority defends the judge's use of the letter, contending that he did not find that
Millburg knew of it or relied on it. Rather, my colleagues emphasize that ''the judge noted that
Pendley was aware of the consequences for engaging in similar conduct for which he was
reprimanded in the October 2005 letter." Slip op. at 17 (emphasis in original). Pendley's
knowledge of the letter and the possibility that he could be discharged for future transgressions is
not relevant to the analysis the judge was charged with performing. There was no other reason
31FMSHRC85

2,

Jn Analyzing Pendley's Retaliation Claim. the Judge Applied an Incorrect Legal Standard
and Failed to Consider Relevant Evidence

The judge ruled that Pendley did not suffer any adverse action from Highland when,
subsequent to the·discharge, he returned to work as a result of the temporary reinstatement order.
30 FMSHRC at 496-98. However, the judge applied an unduly restrictive standard in reviewing
evidence pertaining to the Secretary's claim that after his reinstatement, Pendley was assigned
additional and more difficult job duties. Id. at 483-86; 496-98. The judge noted that:
While an assignment of duties outside the labor agreement
or an assignment of more tasks than can be accomplished in a
normal work period conceivably can constitute adverse actions, in
this instance ... the evidence establishes the tasks Pendley was
assigned fit squarely within the labor agreement ... [and] the
record does not support finding Pendley was assigned more tasks
than he reasonably could accomplish in an eight-hour work day.

Id. at 497 (footnote omitted). The judge's premise that different or additional job assignments do
not constitute adverse action if they fall within a miner's normal job classification constituted
legal error and his adoption of this incorrect legal principle tainted his analysis of Pendley's
adverse action claim.

Jn Moses v. Whitley Development Corp., 4 FMSHRC 1475, 1478 (Aug. 1982), the
C9mmission emphasized that:
it is clear that section 105(c)(l) was intended to encourage miner
participation in enforcement of the Mine Act by protecting them
against "not only the common forms of discrimination, such as
discharge, suspension, demotion ... but also against the more
subtle forms of interference, such as promises of benefit or threats
of reprisal." S. Rep. 95-191, 95th Cong,, 1st Sess. 36 (1977) ["S.
Rep."], reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2d Sess., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 624 (1978) ....

Jn Glover v. Consolidation Coal Co., 19 FMSHRC 1529, 1534 (Sept. 1997), the
Commission found that the complainants' transfer to section mechanic jobs involving more
hazards and dangerous machinery than that used in their former positions, and heavy lifting not
previously required, constituted adverse action. We acknowledged that "transfers to more

for the judge to take into account whether the operator had given Pendley a warning except to use
this information in deciding the question before him - whether Millburg's discharge of Pendley
was motivated in any part by protected activity.
31 FMSHRC86

arduous or difficult work have been held to be discriminatory under the National Labor Relations
Act." Id. at 1534 (citations omitted).
I have found no case law qualifying the principles stated above in the narrow manner
articulated by the judge. A transfer to more arduous job duties based on a miner's protected
activity may constitute adverse action even if the new task is permitted by a union contract and is
within the miner's job classification. Such a transfer may still have a chilling effect on miners'
willingness to make safety complaints.
The Supreme Court recognized this principle in Burlington Northern & Santa Fe Railway
Co. v. White, 548 U.S. 53 (2006). In that case, the Court reasoned:
Burlington argues that a reassignment of duties cannot constitute
retaliatory discrimination where, as here, both the former and
present duties fall within the same job description.... We do not
see why that is so. Almost every job category involves some
responsibilities and duties that are less desirable than others.
Common sense suggests that one good way to discourage an
employee ... from bringing discrimination charges would be to
insist that she spend more time performing the more arduous duties
and less time performing those that are easier or more agreeable.

Id. at 70-71.
The judge's error affected his analysis in two regards. First, it constrained his
examination of the motivation behind the decision to discharge Pendley. A job assignment that
might not rise to the level of adverse action can nevertheless indicate animus and therefore be
relevant in analyzing whether the earlier decision to terminate Pendley was tainted by a
retaliatory motive. Second, the error precluded the judge from correctly analyzing whether the
job assignments Pendley received after he was ordered reinstated constituted a separate instance
of discriminatory conduct in violation of section 105(c). Thus, a remand is needed to evaluate
the evidence using the proper legal standard. 4
The judge's evaluation of the record led him to conclude that ''the evidence offers no
support for finding Pendley'sjob assignments were designed to punish him .... " 30 FMSHRC
4
.

Pendley challenged his discharge and the job assignments that occurred after he was
·temporarily reinstated. Pendley also challenged his earlier three-day suspension as violative of
section 105(c). 30 FMSHRC at 459-61. Pendley's suspension was determined by the judge to be
illegally motivated by Pendley' s protected activity. Id. at 461. This activity led to Highland
receiving several citations for failing to comply with accident reporting requirements. Id. at 4 7172. The judge's ruling that Highland discriminated against Pendley when it suspended him in
December 2005 was not appealed. Slip op. at 1 n.2.
31FMSHRC87

at 497. In reaching this conclusion, however, the judge omitted any mention of one particular
task assigned to Pendley following his temporary reinstatement - moving pallets of glue by hand.
Pendley testified that he was told to move glue pallets without a forklift, and that when he arrived
at his destination, there were already full pallets of glue on the unit. Tr. 1081-82.5 The
implications of this assignment were not lost on fellow miners. Clarence Powell, a mechanic at
the mine who tried to help Pendley {Tr. 483, 489), commented that
[W]hat made it so ironic was the fact that they specified for him
[Pendley] to specifically pick that up [the glue] and haul it to the
unit when ... there's low tracks or fork trucks passing by that area
and they could just as easily scooped it up and took it theirselves
instead of making an individual pick it up and haul it like they did
him.
Tr. 488.
Bernard Alvey, an outby support miner, Tr. 518, also observed Pendleymoving the glue
by hand that night. He confirmed that''(a]ny other time ... [the glue] would have been picked
up by a forklift or a scoop. It wouldn't have been hand loaded." Tr. 521. Alvey explained that a
scoop was available and that in fact he "pulled around him [Pendley] twice that night with a
scoop" while he was picking up the glue, but "[hJe told me that he was told to pick it up, that I
couldn't pick it up with a scoop." Id.
The judge also failed to discuss other evidence of work assignments being changed after
persons made safety complaints. Larry Geary testified that after some miners questioned their
foreman, Steve Bockhorn, about something "a few weeks later they were on a roof bolter off
their regular job." Tr. 477. Asked why it would be bad to be assigned as a roof bolter, Geary
e.x;plained, "the majority of us there are older people and we would rather have something other
than a roof bolter because roof bolter basically is the hardest job in the mines." Id.
Steven Tramel, Jr. testified that, as a battery maintenance worker, when he complained to
the safety director about smoke he was transferred to work on the belts. Tr. 508-09. He also
te$tified about a fellow miner, Robert John, who complained about the slope rope being dirty and
then was assigned to it full-time. Tr. 511. The assignment was viewed as a retaliatory action by
the miners, because although "[i]t wasn't really a different type job ... it was in the dead of
winter," and, according to Tramel, "you don't need to be putting a man in the slope in the dead of
winter all the time." Tr. 512. Asked ''why is that?" Tramel responded "[t]oo cold." Id. Tramel

5

Despite the reluctance of my colleagues to address this evidence, slip op. at 21•22 n.24,
I am mindful of the principle that "[i]n reviewing the whole record, an appellate tribunal must
consider anything in the record that 'fairly detracts' from the weight of the evidence that supports
a challenged finding." Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).
31FMSHRC88

believed John got the slope rope assignment "[b]ecause he complained to the federal about it."

Id. In response to a question by the judge, the witness conceded the assignment was a job within
the same classification. Id. Finally, James Morris testified that when he complained to federal
officials about excessive exposure to rock dust, he was removed from his scoop job position and
put on a roof bolter on the return side, which is exposed to more dust. Tr. 407.
Accordingly, I would vacate the judge's decision and remand the case for a reevaluation
of the post-reinstatement evidence. Such an analysis would be premised on the understanding
that job duties assigned to a complainant may constitute adverse action, even if they are within
his or her same job classification and pennitted by the union contract. I would also have the
judge consider this evidence in reevaluating whether the operator's decision to discharge Pendley
was in any way motivated by Pendley' s protected activity.
For the foregoing reasons, I respectfully dissent.

31FMSHRC89

Distribution:
Melanie J. Kilpatrick, Esq.
R,ajkovich, Williams, Kilpatrick & True, PLLC
2333 Alumni Park Plaza
Suite 310
Lexington, KY 4051.7
Jaines B. Crawford, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247

Mr. David Webb
Agent for Services
Highland Mining Co., LLC
P,0.Box 569
Morganfield,_ KY 4243 7
Scott Maynard
Highland Mining Co., LLC
P.O. Box 569
Morganfield, KY 42437
Lawrence Pendley
P.O. Box 84
Broward, KY 42326
David F. Barbour
Administrative Law Judge
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC90

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

February 2, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2008-1548-M
A.C. No. 35-01041-158346

v.
FREEMAN ROCK, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (''Mine Act"). On September 16, 2008, the Commission received from
Freeman Rock, Inc. ("Freeman") 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 July 29, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA'') issued Proposed Penalty Assessment No. 000158346 to Freeman for seven citations.
On September 16, 2008, Freeman filed a request to reopen this proposed assessment, stating that
it is contesting the proposed assessment on the basis that it was not notified of unspecified
changes in procedures at MSHA' s Albany Field Office. It further alleges that it had been
building its defense in this case during a busy season and did not realize that the time to contest
had passed.
The Secretary responds that the operator's request for reopening should be denied. She
states that the circumstances as stated by the operator, that the operator was not notified of
changes in procedures at MSHA's field office and that it did not realize that it was out of time,
do not qualify as circumstances that warrant reopening under Rule 60(b) of the Federal Rules of
Civil Procedure.
31FMSHRC91

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) 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.
Having reviewed Freeman's request to reopen and the Secretary's response, we agree
with the Secretary that, as its allegations are currently stated, Freeman has failed to show
circumstances that warrant reopening the proposed penalty assessment. It is unclear from
Freeman's statements what alleged changes in the procedures at MSHA's Albany Field Office
Freeman is referring to, whether the alleged changes affected Freeman's ability to timely contest
the proposed penalty assessment, and, if so, what that effect was.

31 FMSHRC92

Accordingly, we deny without prejudice Freeman's request. See, e.g., Eastern Associated
Coal, LLC, 30 FMSHRC 392, 394 (May 2008); James Hamilton Constr., 29 FMSHRC 569, 570
(July 2007). The words "without prejudice" mean that Freeman may submit another request to
reopen the case so that it can contest the citations and penalty assessments. 1

'-

~~

Robert F. Cohen, Jr., CommissiJner

1

If Freeman submits another request to reopen the case, it must identify the specific
citations and assessments it seeks to contest. Freeman must also establish good cause for not
contesting the citations and proposed assessments within 30 days from the date it received the
proposed penalty assessments from MSHA. Under Rule 60(b) of the Federal Rules of Civil
Procedure, the existence of "good cause" may be shown by a number of different factors
including mistake, inadvertence, surprise or excusable fault on the part of the party seeking relief,
or the discovery of new evidence, or fraud, misrepresentation or other misconduct by the adverse
party. Freeman should include a full description of the facts supporting its claim of "good
cause," including how the mistake or other problem prevented Freeman from responding within
the time limits provided in the Mine Act, as part of its request to reopen the case. In addition,
Freeman should submit copies of supporting documents with its request to reopen the case.
31 FMSHRC93

Distribution:
Ted Freeman, Jr.
Freeman Rock, Inc.
P.O. Box 1218
Brookings, OR 97415
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra J runes, Chief
Office of Civil Penalty Compliance
MSHA
__
U.S. Department of Labor
1l00 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
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

31 FMSHRC 94 -

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

February 2, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA),

Docket No. WEVA 2008-1861
A.C. No. 46-09086-135505

v.
BRODY MINING, LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act''). On September 23, 2008, the Commission received from
Brody Mining, LLC ("Brody") a request by counsel 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 8, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000135505 to Brody proposing civil penalties for
violations alleged in 15 citations. Brody states that on approximately January 24, 2008, its safety
director mailed the proposed assessment and a check to MSHA to pay 11 of the 15 penalties. Of
the 15 citations in the Proposed Assessment that was returned to MSHA, Citation Nos. 7280178,
7280180, 9967987, and 9967988 were checked for contest and blackened out. The operator
submits that on the same date, the safety director also faxed copies of the Proposed Assessment
and check to MSHA's Civil Penalty Compliance Office and copied counsel on the fax. Counsel
states that he mistakenly believed that the safety director was contesting the four citations, while
the safety director believed that counsel would separately contest the citations. Brody states that

31FMSHRC95

MSHA has since marked Citation Nos. 7280178, 7280180, 9967987, and 9967988 as delinquent
and the remaining citations in the case, to which payment was applied, as closed.
In response, the Secretary states that she opposes the request to reopen. The Secretary
explains that on April 3, 2008, MSHA sent the operator a notice indicating that the assessment
had become a final order on February 14, 2008. She submits that the notice, which was sent to
th,e address listed on the operator's legal identity form, was returned to MSHA as "undelivered." 1
The Secretary contends that the operator fails to explain why, after MSHA had informed it that it
had not contested the Proposed Assessment, it took over half a year to request reopening.

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessment forms 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 Rule60(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).

1

The Secretary notes that the notice was sent to the same address as the Proposed
Assessment, which the operator states that it received.
31 FMSHRC96

Having reviewed Brody's request and the Secretary's response, in the interests of justice,
we remand this matter to the Chief Administrative Law Judge for a determination of whether
good cause exists for Brody's failure to timely contest the penalty proposal and whether relief
from the final order should be granted. We ask the Judge, in considering the matter, to ascertain
the reasons for the delay of the operator in seeking 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.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC97

Distribution:
William K. Doran, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
2400 N Street NW, 5th Floor
Washington, DC 20037
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,
llOO·Wilson Blvd., 25th Floor,
Arlington, VA 22209-2247
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

31 FMSHRC98

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

February 3, 2009
SECRETARY OF LABOR,
MJNE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2008-812-M
A.C. No. 35-00483-133754

v.
ESTACADA ROCK PRODUCTS

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Cominissioners
ORDER
BYTHE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On April 10, 2008, the Commission received from Estacada
Rock Products ("Estacada") a request 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).
The Secretary states that she does not oppose the reopening of the proposed 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(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 mistake, inadvertence, or excusable neglect.
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
31 FMSHRC99

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 Estacada's request and the Secretary's response, in the interests of
justice, we hereby remand this matter to the Chief Administrative Law Judge for a determination
of whether good cause exists for Estacada'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.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 100

Distribution:
David L. Coffin, Vice President
Estacada Rock Products, Inc.
29400 S. E. Rivennill Rd.
P.O. Box2I8
Estacada, OR 97023
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
I I 00 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance

MSI:IA

-

U.S. Department of Labor
I I 00 Wilson Blvd., 25th Floor
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
60I New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 2000I-202I

31FMSHRC101

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

February 4, 2009
SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2009-95-M
A.C. No. 38-00305-161453

v.
LAPARGE BUILDING MATERIALS, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 12, 2008, the Conunission received from
Lafarge Building Materials, fuc. ("Lafarge") a motion made by counsel 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).
The Secretary states that she does not oppose the reopening of the proposed penalty
assessment. 1
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). fu evaluating requests to
1

The record indicates that a company official inadvertently forwarded the contest form to
Lafarge's financial services center for payment and that, as a result, the contest form was mailed
one day late to MSHA.
31FMSHRC102

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 Lafarge's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

~·

~~
~~~~···
>Chai1'lll3.11

Michael F •

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 103

Distribution:
Laura E. Beverage, Esq.
Jackson Kelly PLLC
1099 l 81h Street, Suite 2150
. Denver, CO 80202

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 & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 104

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

February 4, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2009-267
A.C. No. 46-08549-157507

v.
ENDURANCE MINING

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 12, 2008, the Commission received from
Endurance Mining ("Endurance") a request 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).
The Secretary states that she does not oppose the reopening of the proposed 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(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 mistake, inadvertence, or excusable neglect.
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

31 FMSHRC 105

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).
Having reviewed Endurance's request and the Secretary's response, in the interests of
justice, we hereby remand this matter to the Chief Administrative Law Judge for a determination
of whether good cause exists for Endurance'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.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC I 06

Distribution:
Max L. Corley, ill, Esq.
Dinsmore & Shohl, LLP
P. 0. Box 11887
900 Lee Street, Suite 600
Charleston, WV 25339
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 22209-2247
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

31 FMSHRC 107

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

February 5, 2009
SECRETARY OF LABOR,
MINE SAFETY A.Nb HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2008-546-M
A.C. No. 09-00815-126587

v.
STANDARD SAND &
SILICA COMPANY

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On April 2, 2008 and May 8, 2008, the Commission received
letters from Standard Sand & Silica Company ("Standard Sand") seeking to reopen a penalty ·
ruisessment 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 September 5, 2007, the Department of Labor's Mine Safety and Health
Administration {"MSHA") issued a proposed penalty assessment to Standard Sand. On
December 6, 2007, MSHA apparently sent a notice to Standard Sand indicating that the penalty
had become delinquent and payment was due. In its first letter to the Commission, dated
March 28, 2008, Standard Sand's Safety Services Manager asserts that the operator "originally
contested the citation in late October by sending in the Proposed Assessment Case Number:
000126587." Attached to this letter is a copy of the proposed assessment with the notation
"Rec'd 9/12/07" and the initials of the Safety Services Manager. In his second letter to the
Commission, dated May 5, 2008, the Safety Services Manager states that in late October he
"forwarded the original Proposed Assessment- Case Number 000126587 to Standard Sand &

31 FMSHRC 108

Silica's accounts payable department with the Check for Contest box checked to be sent in as
proper procedure."
Standard Sand further states that it never received MSHA's delinquency notice. It claims
that the first time it learned that the assessment had not been contested was on March 28, 2008,
when it received a collection notice from the Department of Treasury. On the same day,
Standard Sand sent its initial letter to the Commission requesting reopening.
The Secretary states that although she does not oppose the reopening of the assessment,
MSHA has no record of receiving the penalty contest form.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become fmal 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).

31 FMSHRC 109

Having reviewed Standard Sand's request and the Secretary's response, in the interests of
justice, we remand this matter to the Chief Administrative Law Judge .. On remand, the judge
should determine whether Standard Sand mailed its contest to MSHA, and if so, whether it did so
prior to the 30-day deadline set forth in section 105(a). If the judge finds that the assessment was
not timely contested, he should determine-whether good cause exists for Standard Sand's failure
to timely contest the penalty proposal and whether relief from the final order should be granted. 1
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 F.~_.-;.

~Ko.\-

Robert F. Cohen, Jr., Commissioner

1

The judge should specifically determine what Standard Sand actually did to allegedly
contest the proposed penalty assessment and when it did so. If Standard Sand failed to meet the
30-day deadline, it should provide reasons to the judge as to why its neglect is excusable.
31 FMSHRC 110

Distribution:
Gordan J. Broadhead, Safety Services Mngr.
Standard Sand & Silica, Inc.
1850 Hgwy. 17/92 North
P .0. Box 1059
Davenport, FL 33836-1059
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., 22nd Floor
Arlington, VA 22209-2247
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

31FMSHRC111

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

February 5, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2009-143
A.C. No. 46-06843-159507

v.
RUSCAT ENTERPRISES, INC.

BEFORE: Duffy, Chairm!lll; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2006) ("Mine Act"). On October 7, 2008, the Commission received from Ruscat
Enterprises, Inc. ("Ruscat") a request 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).
The Secretary states that she does not oppose the reopening of the proposed penalty
assessment. 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

1

The record indicates that the company, which has only one full-time office employee
and relies in part upon an outside safety consultant, was only three days late in mailing the
contest form, having mailed the contest form on a Monday rather than the preceding Friday.
31FMSHRC112

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 <;>n the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Ruscat' s request and the Secretary's response, in the interests of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 113

Distribution
Howard R. Morris, President
R,uscat Enterprises, Inc.
P.O. Box 1537
Welch, WV 24801

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
l l 00 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1l 00 Wilson Blvd., 251h Floor
Arlington, VA 22209-3939
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

31 FMSHRC 114

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

February 11, 2009

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

Docket No. SE-2009-20
A.C. No. 01-00329-155698

v.

Docket No. SE-2009-21
A.C. No. 01-00851-155699

OAK GROVE RESOURCES, LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
.BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. {2006) {"Mine Act"). On October 9, 2008, the Commission received from Oak
Grove Resources, LLC, {"Oak Grove") a request to reopen two penalty assessments that had
become final orders of the Commission pursuant to section 105{a) of the Mine Act, 30 U.S.C.
§ 815(a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
The Secretary states that she does not oppose the reopening of the proposed penalty
assessments. 2

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers SE 2009-20 and SE 2009-21, each captioned Oak Grove Resources,
LLC, and involving similar procedural issues. 29 C.F.R § 2700.12.
2

The record indicates that, because of internal delays, Oak Grove filed its contests one
day late, and promptly filed a motion to reopen upon discovering that the contests were untimely.
31FMSHRC115

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) (".!WR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Oak Grove's request and the Secretary's response, in the interests of
justice we hereby reopen these matters and remand them to the Chief Administrative Law Judge
for further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29
C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file petitions for
assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31FMSHRC116

Distribution:
Justin A. Rubenstein, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd.
Suite 310
Morgantown, WV 26501
W. Christian Schuinann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
U.S. Dept. Of Labor
Office of Civil Penalty Compliance
MSHA
1100 Wilson Blvd., 25th Fl.
Arlington, VA 22209
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

31FMSHRC117

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

February 11, 2009

SECRETARY OF LABOR,
MlNE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE-2009-49-M
A.C. No. 40-00864-157739 U424

v.
J & T SERVICES

BEFORE: Duffy, Chaiffi!an; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On October 10, 2008, the Commission received from J & T
Services (''J & T") a request 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).
The Secretary states that she does not oppose the reopening of the proposed penalty
assessment. 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 (May 1993) (''JWR"). fu evaluating requests to

1

The record indicates that the individual at the company who would have reviewed the
assessment died in an accident during the 30-day period, and that the company was only two days
late in filing its contest.
31FMSHRC118

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.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. Se,,,s., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed J & rs request and the Secretary's response, in the interests of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Michael G

Robert F. Cohen, Jr., Commissioner

31FMSHRC119

Distribution:
Jerry M. Vaughn, Owner
J &T Services
3390 Pulaski Highway
Columbia, TN 38401-8517

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. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC120

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

February 11, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-203-M
A.C. No. 24-02318-156943

v ..

BILL BALTRUSCH CONSTRUCTION, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 20, 2008, the Commission received from Bill
Baltrusch Construction, Inc. (''Baltrusch") a request to reopen a penalty assessment that had
become a final order of the Commission pursuant to section IOS(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).
The Secretary states that she does not oppose the reopening of the proposed penalty
assessment.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section I05(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section IOS(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.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
31FMSHRC121

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., 17FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Baltrusch' s request and the Secretary's response, in the interests of
justice, we hereby remand this matter to the Chief Administrative Law Judge for a determination
of whether good cause exists for Baltrusch' 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.

~Cc~
Michae!F.~Ch~
ML~

MarY~rdan, CQlnmissioner

Michae

Robert F. Cohen, Jr., Commissioner

31FMSHRC122

Distribution:
Bill Baltrusch, President
Bill Baltrusch Construction, Inc.
P.O. Box 111
Havre, MT 59501-0111
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
US Dept. Of Labor
1100 Wilson Blvd., Rm 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

31 FMSHRC 123

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

February 11, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMlNISTRATION (MSHA)

Docket No. WEVA 2009-259
A.C. No. 46-04168-156462

v.
WOLF RUN MlNING COMPANY

BEFORE: Duffy, Chainnan; Jordan, and Young, Commissioners 1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 5, 2008, the Commission received from Wolf
Run Mining Company ("Wolf Run") a motion by counsel 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).
The Secretary states that she does not oppose the reopening of the proposed penalty
as$essment.
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

1

Commissioner Cohen did not participate in this matter.
31 FMSHRC 124

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or neglect. 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 WolfRun's request and the Secretary's response, in the interests of
justice, we remand this matter to the Chief Administrative Law Judge for a determination of
whether good cause exists for WolfRun'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.

v~
J~, Co~issioner

MaryLu

31FMSHRC125

..

Distribution:

R Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center
Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
A,rlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
F¢deral Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC126

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

February 12, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2008-923-M
A.C. No. 31-02153-148029 C2S

v.
SOUTHERN INDUSTRIAL
CONSTRUCTORS

BEFORE: Duffy, Chainrian; Jordan, Young, and Cohen, Commissioners
·ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 5, 2008, the Commission received from Southern
Industrial Constructors ("Southern") a request 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).
The Secretary states that she does not oppose the reopening of the proposed penalty
assessment. 1
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
1

The record indicates that a company official mistakenly believed that counsel would be
submitting the contest of the penalty while counsel believed that the company had chosen to
handle the contest itself Upon learning of the delinquency, the operator promptly filed its
Motion to Reopen Penalty Assessment.
31FMSHRC127

Jim Walter Res., Inc.; 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section I 05(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 cas.e may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

Having reviewed Southern's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31FMSHRC128

Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC129

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

February 17, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2008-714-M
A.C. No. 23-00288-117226 .

v.
ISP MINERALS, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2006) ("Mine Act"). On August 21, 2008, the Commission received from ISP
Minerals, fuc. ("ISP") a motion made by counsel 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).
The Secretary states that upon review of the record, she has found that service of the
proposed assessment was not achieved, and as a result, the assessment did not become a valid
final order. The Secretary plans to re-send the proposed assessment to the correct address and
then ISP will have 30 days after receipt to contest the penalty. Accordingly, the Secretary
submits that the request to reopen should be dismissed as moot.

31 FMSHRC 130

Given the circumstances and in the interest of justice, we conclude that service of the
proposed assessment was never made, and thus there is no final order under section I 05(a) of the
Mine Act. Hence, ISP's motion is moot and the motion is dismissed.

-

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 131

Distribution:
Brent I. Clark, Esq.
Seyfarth Shaw, LLP
131 S. Dearborn St., Suite 2400
Chicago, IL 60603

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
l l 00 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 132

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

February 17, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADM1NISTRATION (MSHA)
Docket No. KENT 2008-1482
A.C. No. 15-18788-122198M

v.
OMIS RICKY SMITH

BEFORE: Duffy, Chaimfan; Jordan, YoWlg, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises Wlder the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 21, 2008, the Commission received from Omis
Ricky Smith ("Smith") a letter 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).
The Secretary states that upon review of the record, she has foWld that service of the
proposed assessment was not achieved, and as a result, the assessment did not become a valid
final order. The Secretary plans to resend the proposed assessment to the correct address and
then Mr. Smith will have 30 days after receipt to contest the penalty. Accordingly, the Secretary
submits that the request to reopen should be dismissed as moot.

31 FMSHRC 133

Given the. circumstances and in the interest of justice, we conclude thats~rvice of the
proposed assessment was never made, and thus there is no final order under section 105(a) of the
1
Mine Act. Hence, Mr. Smith's motion is moot and his request is dismissed.

Mich

Robert F. Cohen, Jr., Commissioner

1

This means that at present, there is no order requiring Mr. Smith to pay a penalty.
However, the Secretary has the right to send a copy of the proposed assessment to Mr. Smith at
his correct address. Upon receipt of the re-sent proposed assessment, Mr. Smith will have to
submit a notice of contest to MSHA. The matter will then be referred to the Commission for a
hearing.
31FMSHRC134

Distribution:
Omis Ricky Smith
P.O. Box 147
Banner, KY 41603
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. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC135

31 FMSHRC 136

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
202-434-9981frELE FAX: 202-434-9949

January 2, 2009
CUMBERLAND COAL RESOURCES, LP :
Contestant

CONTEST PROCEEDINGS
Docket No. PENN 2008-51-R
Citation No. 7025468; 10/04/2007
Docket No. PENN 2008-52-R
Order No. 7025469; 10/04/2007

v.

Docket No. PENN 2008-53-R
Order No. 7025480; 10/22/2007
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent

Docket No. PENN 2008-54-R
Order No. 7025481; 10/1112007
Cumberland Mine
Mine ID 36-05018
DECISION

Appearances: Donald K. Neely, Esq., Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, on behalf of the Secretary of Labor;
R. Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania, on behalf
of Cumberland Coal Resources, LP.
Before:

Judge Zielinski

These cases are before me on Notices of Contest filed by Cumberland Coal Resources,
LP, pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815.
The notices challenge a citation and three orders issued by the Secretary's Mine Safety and
Health Administration. A hearing was held in Pittsburgh, Pennsylvania, and the parties filed
briefs after receipt of the transcript. For the reasons set forth below, the citation and orders are
affirmed. However, Citation No. 7025468 and Order Nos. 7025469 and 7025480 are modified to
citations issued pursuant to section 104(a) of the Act.
Findings of Fact - Conclusions of Law
Cumberland Coal Resources, LP, operates a large underground coal mine, the
Cumberland Mine, in Gree1:1e County, Pennsylvania. The Cumberland Mine is a "gassy" mine,
liberating over one million cubic feet of methane in a 24-hour period, and is subject to 5-day spot
31FMSHRC137

inspections by the Secretary's Mine Safety and Health Administration pursuant to section 103(i)
of the Act. On October 4, 2007, MSHA coal mine inspector, Barry Radolec, conducted a regular
quarterly inspection of the mine. David Severini, Radolec's supervisor, accompanied him in
o,rder to conduct an evaluation of his performance. Tr. 170. Severini's supervisor, assistant
district manager Anthony Guley was also present to evaluate Severini 's performance. Ronald
Duke, a United Mine Workers of America representative, and Michael Konosky, Cumberland's
representative, completed the inspection party.
Before starting his inspection, Radolec reviewed the MSHA mine file and, when he
arrived at the mine, reviewed the preshift and onshift report books for the 8 Butt section. He
noticed entries for several previous days to the effect that areas of the belt entry from crosscuts
#25 to #30 and #11 to #15 needed rock dusting. Tr. 66-67; ex. G-5. He traveled to the 8 Butt
s¢etion, disembarking at the #11 crosscut so that he could walk the belt entry from that point to
the working places near crosscuts #33 and #34. The conveyor belt transporting coal away from
the section was five to six feet wide and its bottom rollers were 18-24 inches above the mine
floor. Tr. 70. He found no hazardous conditions between crosscuts #11 and #15. Tr. 138. At
the #17.5 crosscut, he observed that the belt had gone out of alignment. One side ofthe lower
portion of the belt was rubbing on a metal belt stand. The abrasive action of the belt had cut into
the steel stand approximately one-quarter to one-half inch. The stand was warm to the touch, and
there was blue "smoke" rising about six to eight inches from the belt/stand contact point. Tr. 7071. There was a small, pyramid-shaped pile of belt shavings, about six inches high near the point
where the belt was rubbing the stand. Radolec believed that the belt was on fire and that the blue
"smoke" was an indication that rubber was burning. 1 Tr. 71-72. When Duke, the miners'
representative, observed the condition, he promptly took.the belt out of service so that the
misalignment could be corrected. Tr. 75. Radolec then proceeded with the inspection; traveling
inby.
Radolec observed accumulations of dry black float coal dust, coal fines and loose coal in
the entry between crosscuts #25 and #25.5, #26.5 and 50 feet outby #27, and #27 and #30.5. The
coal and fines and loose coal were underneath the belt and ranged 4 inches deep in the center of
the 16-foot wide entry and tapered out to one-half inch deep near the ribs. Between crosscuts
#28 and #30.5 there were piles six to ~ight inches deep and 24 inches in diameter. Tr. 77..,80;
137. There was a thin layer of float coal dust on the belt structures, electric cables and switches.
Tr. 36, 80, 172. The float coal dust was deposited on "token" rock dust, such that, when wiped,
it was gray in color. Tr. 49, 83, 160, 164, 172-73. Radolec determined that the condition was
highly likely to result in a fire that would cause fatalities because the belt presented several
potential ignition sources, including, the misalignment, the possibility of additional
misalignments, and the possibility of a failure of a roller bearing resulting in sparking and
friction. He also considered the presence of electrical cables, boxes and switches. Tr. 85-86.
Radolec issued Citation No. 7025467, alleging a violation of 30 C.F.R. § 75.1725(a)~ ·
for failure to maintain machinery in a safe condition. Ex. G-2. That citation is not at issue in
these proceedings.
1

31 FMSHRC 138

He detennined that Cumberland's negligence with respect to the violation was high because of
the notations "needs dusted" that had been reported on records of preshift examinations from
September 25 to October 4. At 9:30 a.m., he issued Citation No. 7025468, pursuant to section
104(d) of the Act, alleging a significant and substantial and unwarrantable failure violation of
30 C.F.R. § 75.400, which requires that combustible materials be cleaned up and not allowed to
accumulate, and specified that the violation was to be terminated by 1:40 p.m., that day. Ex. G4. A crew of eight to ten miners began shoveling the accumulations, worked for about an hour
until the inspection party left, and continued thereafter. Tr. 52. Radolec also issued Order No.
7025469, alleging a significant and substantial and unwarrantable failure violation of 30 C.F.R.
§ 75.363(a), which requires that hazardous conditions found during preshift examinations be
corrected immediately or be posted with a conspicuous danger sign. Ex. G-8. He left the mine
after completing the inspection.
Radolec returned to the mine on October 9, to detennine if the cited conditions had been
abated. He inspected the subject area and found that it had been approximately 75% cleaned.
Tr. 104. Although a light layer of rock dust had been applied, coal fines were still present in the
area of the #29 to #30 crosscuts. Radolec spoke to Fred Evans, a Cumberland safety
representative, who instructed two miners to clean the area. Tr. 104-05. Radolec extended the
time within which the violation was to be terminated to 2:45 p.m. on October 9, and then left the
mine. He returned on October 11 to conduct a 5.;.day spot inspection for methane. Tr. 106.
Accompanied by Walter Lemenovich, an MSHA trainee inspector, John Peny, a Cumberland
safety representative, and Mickey Geisel, a miners' representative, he proceeded to the 8 Butt
belt entry at the #29 to #30 crosscuts, expecting to terminate the accumulations violation.
However, he found the area in the same condition it had been in on October 9. No more work
had been done and there had been only token rock dusting. Tr. 107-08. At 10:30 a.m., he
terminated the Citation and issued Order No. 7025481, pursuant to section 104(b) of the Act.3
He told Perry to take the belt out of service, and to have the area cleaned and dusted immediately.
Tr. 108-09; ex. G-10, G-7 at 14-15. At around 12:00 noon, Perry advised that the condition had
been corrected. However, Radolec refused to terminate the Order until further rock dusting had
been done. Tr. 111. The Order was terminated at 1:20 p.m.
2

On October 11, while en route to check on the area of the accumulations, Radolec
inspected the track haulage entry because he had seen notations in the preshift book for at least
five shifts to the effect that garbage was located at the #10 and #20 crosscuts. At crosscut #10,
he observed wooden pallets, plastic containers, empty oil cans, paper bags and cardboard boxes,

2

October 4, 2007, was a Thursday, and Monday, October 8, was a holiday.

3

Section 104(b) of the Act provides that, where an inspector determines that a violation
cited under section 104(a) "has not been totally abated within the period of time as originally
fixed or subsequently extended, and that the period of time for the abatement should not be
further extended," he shall issue an order requiring the withdrawal of affected miners from the
area. 30 U.S.C. § 814(b).
31 FMSHRC 139

piled irregularly two to three feet high, half way across the crosscut for half of its length, an area
about 8 by 35 feet. Tr. 449-51. At crosscut#20, he observed a large plastic trash bag hanging
from the rib, filled with empty oil cans and plastic containers. At 9:45 a.m., he issued Order No.
7025480, pursuant to section 104{d){l)ofthe Act, alleging a significant and substantial and
unwarrantable failure violation of the combustible accumulations standard, 30 C.F.R. § 75.400.
Upon his return to the MSHA field office, the Order was reviewed with Severini, and was
modified to allege that an injury was unlikely, that the violation was not S&S and that no persons
were affected.
Cumberland timely filed Notices of Contest with respect to the Citation and Orders. The
parties have represented that disposition of these Contest Proceedings will facilitate resolution of
any remaining issues, e.g., those associated with the determination of appropriate civil penalties,
such that no further hearing will be required. The alleged violations are addressed below.
Citation No. 7025468
Citation No. 7025468, issued on October 4, 2007, alleges a violation of 30 C.F .R
§ 75.400, which provides:-

§ 75.400 Accumulation of combustible materials
Coal dust, including float coal dust deposited on rock dusted surfaces,
loose coal and other ,combustible materials, shall be cleaned up and not be
permitted to accumulate in active workings, or on diesel-powered and electric
equipment therein.
The alleged violation was described in the "Condition and Practice" section of the Citation as
follows:
An accumulation of dry black coal float dust and dry black coal fines
existed in the conveyor belt entry on the active 8 Butt {027) M.M.U. development
mining section of the mine. This accumulation existed starting at the number 25
cross-cut and continued to the number 30 112 cross-cut, the location of the
conveyor belt tail roller. These accumulations of dry black coal float dust existed
on the conveyor belt structure, metal 6-inch pipe line, roof support metal channels,
mine roof and ribs, mine floor, electrical power cables, on/off electrical switches,
dry black coal fines and plastic mesh installed on the ribs. The accumulations of
dry black coal fines measured from 1/2 inches to 4 inches across the width of the
16 foot wide entry and for a distance of 75 feet from number 25 to 25 1/2 crosscut. Also the same type coal fines existed from 26 1/2 cross-cut to 50 feet out by
number 27 cross-cut. Number 27 to number 30 112 cross-'cut the same type coal
fines existed along side and under conveyor and in cross-cuts. Number 28 crosscut to the tail roller coal piles existed under the bottom conveyor belt bottom

31 FMSHRC 140

rollers that measured 6 inches to 8 inches in depth, 24 inches wide and 24 inches
long. This type of condition creates a Highly Likely condition for a coal dust
explosion and mine fire to occur. This condition has been reported in the pre shift
record book since 9/25/2007, 8:00 P.M. to 8:40 P.M. and continued until this days
pre-shift examination. This type violation has been issued 63 times in the last 2
years at this mine.

Ex. G-4.
Radolec determined that it was highly likely that the violation would result in a fatal
injury, that the violation was S&S, that one person was affected, and that the operator's
negligence was high. The citation was issued pursuant to section 104(d)(l) of the Act, and
alleged that the violation was the result of the operator's unwarrantable failure to comply with
the mandatory standard.
·
The Violation
Radolec and Severini testified about the conditions they observed, as documented in the
Citation. Supervisory inspector Severini traveled to the section separately, and met Radolec near
the feeder. Radolec informed him of the accumulations that he had found and the belt
misalignment. They then walked back outby, from the belt tailpiece to crosscut #28. Severini
observed the float coal dust on the roof, ribs and belt structure. Tr. 172-73. He also observed
accumulations under the belt, almost rib to rib. Tr. 173. He and Radolec concluded that the
conditions may have been the result of an inadequate cleanup in conjunction with the last belt
move, and that the material had been dragged up the entry as the belt was extended. He saw
"token rock dusting, at best." Tr. 173. He agreed that the area needed to be cleaned and bulk
rock dusted.

In his capacity as a supervisory inspector, Severini reviews citations and orders written by
inspectors. He agreed with Radolec's determination that the standard had been violated, and
with his assessment of gravity, although he did not appear to regard the conditions as seriously as
Radolec, stating that the condition ''wasn't the worst I've ever seen. But it was unacceptable."
Tr. 175. Duke, the miners' representative, assisted Radolec in talcing measurements of the depth
of the accumulations, and confirmed the existence of the conditions in the entry as described in
the Citation. Tr. 36. He testified that after a belt move, the area is usually "fling dusted," but
that it hadn't been done as far as he could tell. 4 Tr. 36-37. He believed that the condition was
hazardous, primarily because of the float coal dust. Tr. 38. Duke disagreed with Radolec's
instruction that material along the ribs and in the crosscuts had to be shoveled. "The stuff that
was along the rihs is the draw slate, it flakes off. ... I felt it wasn't that bad to where it needed

4

Fling dusting is done with a mechanical distributer mounted on a scoop, and is applied
to the cleaned area before the belt tailpiece is moved inby. Bulk rock dusting is done with an air
blowing system after a belt move has been completed. Tr. 174, 235, 243.
31FMSHRC141

[to be] shoveled." Tr. 47.
Konosky, a senior safety representative at Cumberland, traveled to the 8 Butt section with
Severini and Guly, and met Radolec and Duke at the feeder. When informed that the
accumulations citation had been issued, he examined the belt entry in the area of the #25 to #30
crosscuts. While he did not agree that there were dry black coal fines across the width of the
entry, he confirmed that there were some spots with some spillage, and explained '<that's coal
mining." Tr. 223. He testified that the area had been fling dusted when the belt was moved, but
djd not know if there was float coal dust present, and explained that rock dust is darker when it is
wet and could be mistaken for float coal dust. Tr. 221-22.
There is relatively little dispute concerning the existence of the conditions, as described
by Radolec, Severini and Duke, each of whom has considerable mining experience. Konosky did
not refute their testimony, and his explanation that rock dust, when wet, could be mistaken for
float coal dust was unconvincing. Accumulations of loose coal and coal fines, one-half to four
inches deep, were present across nearly the entire width of the belt entry in several locations from
the #25 to the #30.5 crosscuts. There were irregularly spaced piles of coal from six to eight
inches deep between crosscuts #28 and #30.5. In addition, there was a thin layer of float coal
dust on stationary horizontal surfaces, deposited on _an inadequate layer of rock dust that had
been applied by hand. The area had not been fling dusted when the belt moves were done, and
bulk rock dusting had not progressed to that area. While some of the material along the ribs and
in the crosscuts was non-hazardous draw slate, and some rock dust had been applied in the area, a
significant quantity of combustible material had been permitted to accumulate, in violation of the
standard. 5
Significant and Substantial
A significant and substantial ("S&S") violation is described in section 104(d)(l) of the
Act as a violation "of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." 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'! Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: (I) 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

5

I also find that a reasonably prudent person, familiar with the mining industry and the
protective purposes of the Act, should have realized that the conditions violated the standard.
31 FMSHRC 142

violation; (3) a reasonable likelihood that the hazard co.ntributed to will result in
an injury; and ( 4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861F.2d99,
103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving
Mathies criteria).
In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission
provided additional guidance:

We have explained further 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." U.S. 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 ofa hazard that must be significant and substantial. U.S. Steel
Mining Co., Inc., 6 FMSHRC 1866, 1868 (Augast 1984); U.S. Steel Mining Co., ·
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
This evaluation is made in terms of "continued normal mining operations." U.S. Steel
Mining Co., Inc., 6 FMSHRC at 1574. The question of whether a particular violation is
significant and substantial must be based on the particular facts surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC
2007 (Dec. 1987).
The fact of the violation has been established. The measure of danger to safety was
contributed to by the presence of the combustible accumulations, which presented a hazardous
condition, i.e., the possibility of a fire or explosion or an exacerbation of the effects of a fire or
explosion that might occur in the area. Any injury resulting from such an event could be
expected to be reasonably serious. The focus of the S&S analysis, as is often the case, is whether
the violation was reasonably likely to result in an injury producing event. Cumberland also
makes an argument that, even ifthere was an ignition and fire, there was no reasonable
likelihood of a serious injury resulting. Because I find that the Secretary has failed to carry her
burden of proof on the third element of the test, I need not reach Cumberland's argument on the
forth element. While it has some appeal, it appears to be foreclosed by Commission precedent. 6

6

Cumberland's argument is based largely on an MSHA study, reporting that no fatalities
or reportable injuries resulted from any of the 63 reportable belt fires that occurred from 1980
through 2005. Coupled with the presence of multiple safety features, some of recent origin, it
contends that a potential belt fire cannot be found to be reasonably likely to result in a serious
mJury. The courts and the Commission have held, however, that such evidence does not
31FMSHRC143

When evaluating the reasonable likelihood of a fire, ignition, or explosion,
the Commission has examined whethera 'confluence of factors' was present
based on the particular facts surrounding the violation. Texasgulf, Inc., 10
FMSHRC 498, 501 (April 1988). Some of the factors include the extent of the
accumulations, possible ignition sources, the presence of methane, and the type of
equipment in the area. Utah Power & Light Co., 12 FMSHCR 965, 970-71 (May
1990) ('UP&L ');Texasgulf, 10 FMSHRC at 500-03.
Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997).
Radolec addressed the factors identified in Enlow Fork in explaining his determination
that the violation was S&S. He described the accumulations, cited the presence of methane, and
identified the conveyor belt system and related electrical equipment as potential ignition sources.
Tr. 85 He also described a remarkably catastrophic sequence of events that he deemed was
hjghly likely to occur as a result of the violation, beginning with the dust and coal fines igniting,
resulting in a fire that would grow to such an extent that it would prevent effective Ventilation,
producing a buildup of methane which would explode, putting the float coal dust into
suspension, resulting in another explosion, such that the entire mine and any miners in it would
be caught up in the conflagration. Tr. 82-83, 146-47, 416-20. Radolec's opinion about the
likelihood of a catastrophic event, which appears to have little, if anything, to do with the cited
accumulations, will be discussed in conjunction with the Enlow Fork factors.
The Accumulations
While.the accumulations existed over a significant area, they ranged from one-half to four
inches deep, and were not close to the belt or bottom rollers. The deposits were not being added
to as mining continued. 7 Radolec and Severini concluded that they were the product of loose
coal that had been dragged up the entry during the last belt move. · Tr. 173. While they existed
over areas that could be described as extensive, they were not particularly extensive in volume,
and were considerably removed from moving machine parts. There was a thin layer of float coal
dust, deposited on previously rock dusted surfaces. However, the rock dusting that had been
done was inadequate.

establish that a violation is not S&S. See Buck Creek Coal, supra; Amax Coal Co., 19 FMSHRC
846, 849(May1997). One problem with the argument is that the report did not correlate the
incidence of belt fires with the presence of unlawful accumulations. Had unlawful
accumulations been present, there may have been more serious consequences.
7

Radolec confirmed that the deposits had not been added to between October 4 and
October 11, and that it was a "pretty good belt." Tr. 133.
31FMSHRC144

Ignition Sources
Radolec identified potential ignition sources as friction from the belt going out of
alignment, like he found at crosscut #17.5, and friction and sparks from belt rollers with bad
bearings. Tr. 85. He also believed that it was highly likely that the conveyor belt itself would
cause the coal dust to ignite, because of its capacity to generate heat. Tr. 83-85. He also
mentioned dust on cables and electrical boxes, including belt switches, cables to the carbon
monoxide ("CO") monitors, and the power cable for the feeder. However, he did not explain
how the cables or the electrical boxes could produce an ignition, or the likelihood that such an
event would occur. Tr. 85, 121. It appears that the cables and wires were stationary and
insulated, and that the connections were enclosed in boxes. Aside from the power cable that had
not been properly hung, he did not identify any defects in any of the electrical equipmen( His
belief that the cables could be ignition sources was apparently based upon the occurrence of
some event that would result in damage and the creation of sparks or heat build-up. But, he did
not identify the nature of such an event, or the likelihood of it occurring. The· fact that electrical
cables or equipment could somehow result in an ignition cannot establish that the violation was
S&S. Amax Coal Co., 18 FMSHRC 1355, 1358-59 (Aug. 1996) (to prove S&S nature of
violation Secretary must prove that it is reasonably likely that an injury producing event will
occur, not that one could occur - S&S finding reversed, in part, because ALJ did not consider
that electrical cables in area were insulated and produced no heat).
Radolec considered the misalignment of the belt at crosscut# 17.5 as a potential ignition
source. Tr. 84-85. However, his explanation of how the misalignment could affect the
accumulations 1~000 feet inby, was difficult to follow. Tr. 416-18. He stated that a ''hot area" on
the belt would "increase" and ''work its way all the way up to 25," causing an ignition that would,
in tum, ignite "coal dust on the belt" and particles of coal on the belt, causing a fire in coal
around the tailpiece that would spread throughout the "total belt entry." Tr. 416-18. Whether or
not this scenario bears any relationship to reality, it is clear that he substantially misperceived the
conditions at the #17.5 crosscut. 8 He testified that there was "blue smoke" coming from where
the belt contacted the stand, and that: "The belt was on fire. It was burning." Tr. 71-72. His
belief persisted, even though he admitted that he saw no flames, did not detect any carbon
monoxide, the metal stand was warm rather than hot, and the belt was not burning when it was
stopped by Duke. Tr. 116-17.
John Gallick, vice president of safety and health for Foundation Coal, of which
Cumberland is an affiliate, testified that, from Radolec's description of the rubbing belt at
crosscut #17.5, the belt was not on fire. He also testified, referencing earlier studies, that a belt ·
cannot catch on fire by rubbing on a stand. Tr. 361-63, 440-43. Gallick has extensive
education, training and experience in the field of safety, particularly as associated with fires,

8

Radolec did not explain, e.g., how a hot area on the belt could ignite the accumulations
when it was moving at approximately 500 feet per minute and was more than one foot away from
them.
31FMSHRC145

including belt fires. 9 He explained that, in the absence of dust or accumulations in contact with
the point of friction, the fire resistant belt is the only thing that could potentially begin to bum,
and that it cools as it leaves the point of contact and continues around the circuit, such that it
cl;l1lllot be ignited by rubbing on a stand. Tr. 362, 440-43.
Cumberland offered Gallick as an expert witness on mine fires and risk analysis. Tr. 31718. The Secretary objected, contending that general opinions on whether a violation was S&S or
the likelihood of an injury occurring and its severity are not proper subjects of expert opinion
and, as a person who did not observe the conditions associated with the violation, he should not
be permitted to offer lay opinion testimony. Tr. 324-26. The testimony was allowed, in essence
provisionally, subject to later challenge, e.g., on grounds that it was unreliable or irrelevant. 10

9

Gallick has over 25 years of experience as a safety director for companies operating
underground coal mines. While working for a safety consultant, he taught fire :fighting and
rescue teams at MSHA's training academy in Beckley, West Virginia, and has a Master's Degree
in safety with an emphasis on management He worked in command centers at two major mine
fires, Marianna Mine 58 and the recent Aracoma fire. After his involvement in the Marianna belt
fire, he became involved in research with consultants and with the then Bureau of Mines,
National fustitute for Occupational Safety and Health (''NIOSH"), on solutions to problems
encountered at Marianna. He was involved in projects that generated research papers, which he
did not author, many of which were cited and discussed in a recent MSHA report on belt fires
from 1980 through 2005, referred to as the "Bentley Report." MSHA, Reducing Belt Entry Fires
in Underground Coal Mines (2007) .. Ex. R-8. He also was an invited speaker by the chairman of
a belt study group in 1989. Tr. 296-323.
10

I declined to bar Gallick from testifying or to designate him as an "expert" in a
specific field, and held that his testimony would be accorded whatever weight it was entitled to,
bl;l.Sed upon an evaluation of its relevance and reliability in light of his experience and
qualifications. The parties were invited to make arguments on the relevance of his testimony in
post-hearing briefs. Tr. 332-33, As I noted in Cactus Canyon Quarries of Texas, Inc., 23
FMSHRC 280, 287 (Mar. 2001) (ALJ), the Commission, like most federal agencies, operates
under far more liberal rules governing the admissibility of evidence than those set forth in the
Federal Rules of Evidence. Commission Procedural Rule 63(a), 29 C.F.R. § 2700.63(a),
provides that: "Relevant evidence, including hearsay evidence, that is not unduly repetitious or
cumulative is admissible." This is an entirely appropriate standard for litigation before the
Commission's Administrative Law Judges. As one noted commentator has written:
The complicated rules of evidence applicable to judicial trials were
designed to govern decisiomnaking by juries. They are premised on the belief that
lay jurors are likely to misuse large categories of relevant evidence if they become
aware of that evidence. Whether or not the [Federal Rules of Evidence] are well~
suited to that purpose, they are totally inappropriate for application either to
agency adjudications or to judge-tried cases.....
31FMSHRC146

Tr. 330-34. The Secretary argues, in her post-hearing brief, that Gallick's testimony on certain
issues should be accorded little weight, because it is unreliable and contrary to established
precedent. Sec'y Br. at 15-16. While some ofGallick's testimony should be accorded limited
weight, 11 for th~ most part,.his testimony was informative and well-supported.
I find Gallick's testimony regarding the probability of the belt catching fire because it was
rubbing on the stand at crosscut #17.5, highly probative. The Secretary does not directly argue
otherwise as to this part of his testimony. Gallick's statement that the fire-resistant belt could not
catch on fire by rubbing on the stand was clearly explained, and was supported by references to
studies. It also made sense. The belt was moving past the area of contact at approximately 500
feet per minute. A particular point on the edge of the belt came into contact with the stand,
heated by the friction of the belt's rubbing, only for a :fraction of a second. No significant
amount of heat could transfer to the belt, because the stand was not·particularly hot, and the
length of time that any point on the edge of the belt was in contact with the stand was extremely
short. That would be the case even if the stand became considerably hotter. Once passing the
stand, a point on the belt edge made a complete loop of some 10,000 feet, before once again
coming into contact with the stand. Any heat picked up by the edge of the belt would have been
quickly dissipated as the b-elt moved through its circuit of travel.
Radolec agreed that the belt was not on fire when Duke stopped it, and he did not check
to see whether it was hot. Tr. 116-17. The ''wann" stand did not ignite the belt, even after it was
stopped. As Gallick explained, while the belt cannot catch fire while moving, even from a hot
roller, there is more potential for heating when the belt is shut down and a stationary portion of
the belt is continuously exposed to a heat source. Tr. 362.
Clearly, the belt was not on fire, as Radolec believed, nor was there any realistic
possibility that the belt· could have caught on fire by rubbing against the belt stand. While the
condition may have become somewhat worse as mining continued, there is no credible evidence
that it would have been reasonably likely to cause an adverse effect, either directly or indirectly,
on the accumulations cited, which were 1,000 feet away, and upstream in the 230 foot-perminute ventilation flow. 12

II Davis and Pierce, Administrative Law Treatise 118 (3rd ed.). Accordingly, there was no need
to perform a "gatekeeper" function, as discussed in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Rather,
Gallick's testimony was allowed, subject to later challenge.
11

For example, Gallick's testimony that the conditions were not S&S or hazardous has
been accorded virtually no weight. Tr. 337-38.
12

Radolec estimated, without any real foundation, that it had taken about one day for the
belt to wear into the stand about one-quarter inch. Tr. 155-58. He also noted that belts are
examined three times each day. Tr. 412. It is likely that a belt examiner would soon have
31FMSHRC147

Radolec also believed that a belt roller, the bearings of which had failed, could become
overheated by metal-to-metal contact, and ignite the belt and the coal on it. Gallick testified that
studies had shown that a moving belt will not be ignited, even if coal is burning. Tr. 441-42.
I find Radolec's belt ignition scenario entirely speculative and unfounded for the same reasons
discussed above. Certainly, a bad roller in the area of the cited accumulations could present an·
ignition source. Gallick noted that the Bentley Report demonstrated that a bad roller could be a
source of ignition, even though reportable fires from bad rollers were relatively rare. Tr. 361.
llowever, the Secretary offered no evidence that there was a bad roller anywhere on the belt, and
no evidence to establish that it was reasonably likely that a roller would fail in the area of the
accumulations. Radolec walked the belt from the #11 crosscut to the #17.5 crosscut, where it
was rubbing the stand and was shut down. He did not see any bad rollers. Tr. 425. Nor did he
mention seeing any obviously bad rollers as he continued to walk the belt out to the tailpiece.
While he may not have been able to detect a roller that was starting to fail while the belt was not
running, a failed roller would have been very hot and most likely would have been identified
even with the belt stopped. Cumberland's belt examiners were equipped with heat gun sensors to
identify any rollers that might be hot. Tr. 227. Consequently, the possibility of a roller's bearing
failing and creating a potential ignition source was significantly reduced. fu addition, the
accumulations were 18 to-24 inches away :from the rollers.
Methane
The presence of methane can be a significant consideration in the S&S analysis, and
Radolec relied on the fact that the Cumberland Mine produced over one million cubic feet of
methane ill a 24-hour period. However, there was very little methane in the area of the violation,
nor was there likely to be. Radolec tested the atmosphere in the belt entry and found 0.4%
methane, well below the explosive range. Tr. 82. The presence of methane in any significant
concentration was unlikely because the belt entry was ventilated with a split of intake air that had
not coursed through any other active workings. The Secretary argues that liberation of methane
is unpredictable and that dangerous concentrations could occur at any time. · However, it is well
recognized that most methane is liberated when coal is being cut; i.e., at the active faces.· See,
e.g., U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). In the Cumberland Mine, any
methane liberated at the faces would be coursed out the return entry, not the belt entry.
Moreover, the mine has virtually no history of methane ignitions. 13
Equipment
The only equipment operating in the area was the belt system itself The electrical cables,
switches and boxes have been addressed above, as have the possibility of bad rollers and belt

discovered the condition and shut the belt down, as Duke did when he saw it.
13

Cumberland had a major mine fire in 1987, a gob fire approximately three years
earlier, and a recent electrical fire in a load center that was not reportable. Tr. 62, 131-32.
31 FMSHRC 148

misalignments. Radolec believed that an injury was "highly ljkely to occur because of the nature
of the very equipment that operates in a confined area." Tr. 408. Referring to the belt drive unit,
he described "big motors with the enormous hydraulic equipment and the heat that they ... put
off." Tr. 409. It is apparent from that testimony, and from other explanations offered by
Radolec, that he believes that conveyor belts, particularly newer belt systems that are
substantially larger and more powerful than older systems, in themselves, pose a significant
potential for catastrophic belts fires. He stated that his fire - methane explosion - dust explosion
progression was not just a statement of possibilities, but "things that happen in the coal mines,"
and if something happens once it is highly likely to happen again. Tr. 131. He further opined that
"[i]t' s highly likely we are to encounter a coal mine fire any place in a coal mine, being that we
are completely surrounded with the fuel of coal which is enhanced by methane." Tr. 131. If his
statements are accurate, it was highly likely that a fire would occur in the belt entry at the #25 to
#30 crosscuts, even after the accumulations had been completely removed and the area had been
bulk rock dusted.
There are several problems with Radolec 's catastrophic scenarios. First, the
accumulations played virtually no role in his assessment that a belt entry engulfing fire was
highly likely to occur and-result in multiple fatalities. His testimony reflects his general
assessment of dangers posed by modern belt systems, regardless of whether safety systems, such
a CO monitors and fire suppression systems, are in place or whether unlawful accumulations are
present. Second, his assessment is not supported by actual occurrences in the thousands of
underground coal mines that have operated under MSHA's jurisdiction over the past 28 years.
With one notable exception, there have been no fatalities and no reportable injuries resulting
from any reportable belt fire since at least 1979.
The exception, of course, was the belt fire at Aracoma's Alma #1 Mine on January 19,
2006, in which two miners perished. It is apparent that the Aracoma fire figured heavily in
Radolec's assessment of the dangers posed by conveyor belt systems. However, Gallick
explained, and Radolec also admitted, that there were several conditions unique to the Aracoma
mine that resulted in the disaster. The fire suppression system at Aracoma's belt drive unit,
where the fire originated, had been turned off. Tr. 97, 127. Stoppings separating the escapeways
from the belt entry were missing, such that the miners attempting to evacuate the mine were not
protected from the products of combustion in the belt entry, and there were delays in the system
for alerting miners to a fire and commencing evacuation from the mine. 14 fu contrast, the belt
drive unit at the Cumberland Mine, which was located about 5,000 feet from the accumulations,
was protected by a substantial fire suppression system, including a ''wall of water." Tr. 373.
Permanent stoppings separated both escapeways from the belt entry, and there was an operational
CO monitoring system that would provide an automatic early warning to the working sections,
14

Aracoma's multiple flagrant violations of safety standards recently resulted in a
negotiated settlement of criminal and civil enforcement actions, with Aracoma pleading guilty to
several criminal violations and agreeing to pay criminal fines and civil penalties totaling 4.2
million dollars.

31 FMSHRC 149

and prompt immediate evacuation of the mine. Tr. 351. Additional safety measures were also
present as a result of recent legislation, including lifelines to assure that miners would not loose
their way during an evacuation, like those who perished at Aracoma, additional self-rescuing
devices to provide breathable air for a longer period of time, and additional training requirements
for miners on escaping such hazards. Tr. 352-53, 378-79;
While the Aracoma fire demonstrates that a major belt fire can result in fatalities, the
conditions under which it occurred bear no resemblance to the conditions at the Cumberland
Mine. It has little significance on the question of whether the cited accumulations were S&S,
and does not lend appreciable support to Radolec's determination that the accumulations were
highly likely to result in a fatality.
The Commission and courts have observed that the opinion of an experienced MSHA
inspector that a violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co.,
20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal, Inc., v. MSHA, 52 F.3d 133, 135-36
(7th Cir. 1995). Radolec certainly qualifies as an experienced MSHA inspector. He has been
performing that function for fifteen years, and had 26 years of mining experience before
becoming an inspector. However, aside from a general reference to his initial training, he did not
relate his explanation of why he determined that the violation was S&S to his experience or
trlrining, nor did he cite any reports, studies or other information to support his determination.
He was asked to explain the bases for his belief that the violation would be highly likely to result
in fatalities, e.g., to cite personal experience, studies, reports, or other data, especially in light of
MSHA' s Bentley Report, which documented the fact that from 1980 to 2005 there were 63
reportable belt fires none of which resulted in a reportable injwy, much less a fatality. Tr. 14853, 415-20. His attempts to explain were largely non-responsive, and he felt that the Bentley
Report actually enhanced his S&S finding. Tr. 95. He eventually made a general reference to his
in,itial training as an inspector, some 15 years ago, and expressed his belief that the training had
been based upon reported incidents. Tr. 426-28.
Severini, who also observed the accumulations, concurred with Rado lee's determination
on gravity. He has more limited experience as an MSHA inspector, having been an inspector for
three years, and a supervisory inspector for one year. Tr. 166-67. He had over 25 years of
previous mining experience, almost all ofit as a manager. Tr. 167-69. Severini did not explain,
in detail, why he agreed that the violation was S&S, or whether he believed that the catastrophic
scenarios related by Radolec were reasonably likely to occur. When asked about ignition sources
in the area of the accumulations, he identified only the "belt itself" Tr. 173. He later referred to
the belt rubbing on the stand, but did not explain how that could have been an ignition source for
the cited accumulations. Tr. 194. While he concurred with Radolec, his characterization of the
violation and his assessment of whether other violations he had cited were S&S, suggest that he
did not have a strong opinion that the violation was S&S. 15

15

Severini had issued a violation in a track entry at the Cumberland Mine for an
accumulation of float coal dust over an extensive area, rating it non-S&S and unlikely to result in
31 FMSHRC 150

My impression of his testimony on this issue is that he reluctantly supported Radolec
because he did not want to, in essence, overrule him on a second violation. As previously noted,
and as discussed below, Radolec had also issued a section 104(d)(l) order, citing an
accumulations violation based upon trash he had observed at two locations along the track entry.
Ex. G-8. Rado lee had evaluated the violation as S&S, determined that it was "highly likely'' to
result in a "permanently disabling" injury, and that 10 persons were affected. The following
day, Severini reviewed the order with Radolec. As a result of that meeting, Radolec amended the
violation to delete the S&S designation and changed the gravity findings to "unlikely'' to result in
a "No Lost Workdays" injury, and that no persons were affected. Ex. G-8. While Severini and
Radolec explained that the changes were mutually agreed upon, it was Severini's review that
prompted the substantial amendments, and neither party cited any new information as a
justification for the changes. Tr. 457-60; 507-08, 511-12. 16
While it is possible that the fire/explosion sequence described by Radolec might or could
occur, that is not sufficient to establish that it was reasonably likely that an injury producing
event would occur as a result of the violation. Radolec' s and, to a lesser extent, Severini' s
determinations that the violation was S&S are, by virtue of their positions, entitled to weight.
However, their opinions were not based upon or explained in relation to their experience, or
training, and they will be afforded weight only insofar as they are supported by the evidence.
Considering all of the Enlow Fork.factors,. I find that the violation was not S&S. The
accumulations were not particularly extensive, only potential ignition sources were in the area,
there was very little methane, and, aside from the remotely located belt rubbing the stand, there
were no defects in the belt system. A significant factor is that the accumulations were not close
to being in contact with the rollers or belt, and were not being added to. Here the focus is on the
presence of an ignition source for these accumulations. While several possible ignition sources
were identified, there was no evidence that any of them was reasonably likely to ignite the
accumulations. 17 The potential ignition sources identified are present in all conveyor belt entries.

a lost workdays injury, and cited conditions that differed from those on October 4. Tr. 181, 19091. He also had issued a violation for accumulations that were in contact with several rollers and
were being ground up in the tailpiece, and rated it as S&S, and highly likely to result in a lost
workdays injury. Tr. 185-86. He explained the difference between his evaluation of the latter
violation and Radolec's evaluation of the instant violation as, being a judgment call and
"everyone has to make that call themselves." Tr. 192.
16

Radolec's initial evaluation of the violation was that the trash could propagate a fire
and explosion originating in the belt entry, if it blew out a stopping between the belt and track
entries. Tr. 458. Upon review, it was determined that that was not a "real reasonable case."
Tr. 459.
17

The presence of float coal dust, even though it had been deposited on limited rock
dust, enhanced the possibility of an injury producing event occurring if an ignition occurred. ·
31FMSHRC151

If they are sufficient to make an accumulations violation S&S, then virtually all accumulation
violations in belt entries would be S&S. Clearly, that is not the case. I find that the violation
was unlikely to result in a lostworkdays injury, and that one person was affected. 18
The finding that the violation was not S&S is consistent with other cases decided by the
Commission and its Administrative Law.Judges. See Solid Energy Mining Co., 30 FMSHRC
823 {July 2008) (ALJ) (accumulations violation, consisting of dry textured float coal dust on
mine floor, belt structure and water lines for distance of 642 feet, in mine that liberates in excess
of 250,000 cubic feet of methane in a 24-hour period, held not S&S - there was no loose coal; the
dust was paper thin, inspector's conclusion regarding dust's explosive nature was based only on
the color of the dust, he acknowledged that he observed no ignition sources in the vicinity of the
dust, and he found no methane in the area); Jim Walter Resources, Inc., 30 FMSHRC 834 (July
2008) {ALJ) {accumulations violation consisting of float coal dust, black in color, on top of rock
dust, on roof, ribs, belt frame and floor extending 867 feet, with coal fines in layers of rock dust
for 1,451 ·feet, up to 48 inches deep, potential ignitions sources consisted of electrical cables and
possibility of belt roller going bad, but no evidence of the likelihood of an ignition by the
electrical equipment or likelihood that a roller would go bad in a manner to cause an ignition, and
no defects were found in electrical equipment or rollers); Amax Coal Co., 19 FMSHRC 846
{May 1997) {S&S finding affirmed where accumulations were 6 inches to 3 feet deep for 85
along belt and 200 feet along intersecting belt, accumulations were covered with float coal dust
and an ignition source was present where the belt was running for 15 feet on dry, packed coal and.
loose coal); Clinchjield Coal Co., 21FMSHRC231, 238-,42 (Feb. 1999) (AU) (accumulations
2 to 24 inches deep·extending 3,000 feet, float coal dust extending 450 feet, ignition sources
presented by 37 places where rollers were running in the accumulations or were stuck and 11
places where rollers were missing and the belt was rubbing on the stand); Maple Creek Mining,
Inc., 22 FMSHRC 742, 754-56 {June 2000) {AU) {accumulations 4 feet by4 feet and 1 foot
d~ep and ignition source presented by tail roller running in accumulations and belt rubbing on
st~d in close proximity to accumulations, and stand was too hot to touch).
Unwarrantable Failure - Negligence

In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission reiterated
the law applicable to determining whether a violation is the result of an unwarrantable failure: .

Radolec posited that the dust and fines would ignite, eventually resulting in a methane explosion
that would put the dust into suspension producing a dust explosion. Tr. 82-84. Gallick opined
that a dust explosion would almost always require a methane explosion to put the dust into
suspension, and that it would need to be very thick in the air to be explosive itself. Tr. 369-70.
18

The Secretary argues that several other violations issued by Radolec, which were not
at issue in these cases, support the S&S finding. Tr. 86, 120-24. For the reasons cited by
Gallick, I find that they are largely irrelevant on the S&S issue. Tr. 369, 394.
31 FMSHRC 152

The unwarrantable· failure terminology is taken from section 104(d) of the
Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in
connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec.
1987), the Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable
failure is characterized by such conduct as "reckless disregard," "intentional
misconduct," "indifference," or a "serious lack of reasonable care." Id. at
2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991)
("R&P"); see also Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir.
1995)] (approving Commission's unwarrantable failure test).
Whether conduct is "aggravated" in the context of unwarrantable failure is
determined by looking at all the facts and circumstances of each case to see if any
aggravating factors exist, such as the length of time that the violation has existed,
the extent of the violative condition, whether the operator has been placed on
notice that greater efforts are necessary for compliance, the operator's efforts in
abating the violati:\7e condition, whether the violation is obvious or poses a high
degree of danger, and the operator's knowledge of the existence of the violation.
See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) ... ; Cyprus
Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds,
195 F.3'd 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan.
1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody
Coal Co., 14 FMSHRC 1258, 1261(Aug.1992); BethEnergy Mines, Inc.,
14 FMSHRC 1232, 1243-44 (Aug. 1992); QuinlandCoals, Inc., 10 FMSHRC ·
705, 709 (June 1988). All of the relevant facts and circumstances of each case
must be examined to determine if an actor's conduct is aggravated, or whether
mitigating circumstances exist. Consol, 22 FMSHRC at 353. Because
supervisors are held to a high standard of care, another important factor
supporting an unwarrantable failure determination is the involvement of a
supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar.
1998).
The Secretary argues that the violation was the result of an unwarrantable failure because
the conditions were extensive, obvious, posed a high degree of danger, and existed for several
days. Moreover, management was on notice of the conditions, because they had been repeatedly
noted in reports of preshift examinations, and numerous prior violations had put Cumberland on
notice that additional efforts were needed to address accumulations hazards. Not surprisingly,
Cumberland disagrees with each of these arguments. 19

19

The Citation was issued pursuant to section 104(d)(l) of the Act, which requires that a
violation be both S&S and the result of an unwarrantable failure. Because the violation has been
held not to have been S&S, it is technically unnecessary to decide the unwarrantable failure issue.
However, it is necessary to address the issue of Cumberland's negligence, which is alleged to
31 FMSHRC 153

As noted in the discussion of S&S, the accumulations were fairly extensive and, while
they were only about one-half inch deep in the traveled areas of the entry, they should have been
reasonably obvious to preshift examiners. The Secretary argues that, because the violation was
highly likely to result in fatalities and was S&S, that it posed a high degree of danger. However,
the violation was found not to have been S&S. Rather it was unlikely to result in an injury
resulting in lost work days. The accumulations were not being added to. Some rock dust had
been applied, and they were damp or wet in areas, particularly close to the feeder. 20 Tr. 49. The
belt rubbing on the stand at the #17.5 crosscut did not pose a realistic possibility of an ignition of
the accumulations, and there were no other ignition sources identified that presented a reasonable
likelihood that an ignition would occur. Consequently, while the accumulations constituted a
hazard, they did not pose a high degree of danger.
The Secretary places great emphasis on the fact that Cumberland's preshift reports for
several days prior to the violation showed that the area in question needed rock dusting, and
argues that Cumberland had ample knowledge of the conditions. As Radolec explained, his
review of the operator's preshift reports showed entries dating back to September 22, 2007,
stating that areas of the belt entry from various crosscuts to the tail piece "needs dusted." Tr. 6667, 138; ex. G-5. The preshift reports are signed by the Assistant Foreman, the Mine Foreman
and the Superintendent. Ex. G-5. Radolec and Severini determined, based on those notations,
·th,at Cumberland's higher level managers had actual knowledge of the violation for several days,
· and took no action to abate the condition. Tr. 89-90, 178-79.
Cumberland takes issue with the Secretary's argument. It points out that the "needs
dusted" notations were made in a section of the report titled "Violations Observed and Reported;
Violation or Condition." Immediately below that is another section of the report, entitled
"Dangerous and Hazardous Conditions Observed and Reported." The word "none" was entered
in the hazardous conditions section of the reports. Konosky testified that there was a very
significant difference between the two sections of the report. Any dangerous or hazardous
conditions would be reported in that section and would be immediately attended to, as required
by the Secretary's regulations. He also related that mine managers reviewing the reports would
pay particular attention to hazardous conditions and assure that they were addressed, whereas
conditions noted in the "violation or condition" section, would be addressed in due course.

have been high. Other citations and orders are also at issue, and the S&S finding may not
become final. For the sake of judicial economy the issue of unwarrantable failure, as well as
negligence, will be addressed.
20

There was conflicting testimony on whether the accumulations were wet or dry.
Radolec, Severini and Lemenovich testified that they were dry. Tr. 79, 175, 202. Konosky,
Nairn and Perry testified thatthey were wet. Tr. 223, 240, 286. Duke testified that they were
generally dry, but may have been wet or damp near the feeder. Tr. 49. It is well settled that wet
or damp accumulations can dry out and ignite, and do not establish that a violation is not S&S.
See Utah Power & Light, 12 FMSHRC 965, 969 (May 1990).
31 FMSHRC 154

Tr. 228-30. John Nairn, Cumberland's continuous miner manager, had over thirty years of
mining experience, and also testified that there was a difference in the types of conditions that
would be reported in the two sections of the preshift report. Hazardous conditions would be
noted in that section, and would be immediately attended to, i.e., either corrected or the area
dangered off. Other conditions reported in the first section would be looked at and dealt with in
the regular course of business. Tr. 254-55. Based on this testimony, and the nature of the reports
themselves, Cumberland argues that the "needs dusted" entries were merely routine notations
that bulk rock dusting had yet to occur in relation to the most recent belt move, and did not
indicate that a hazardous condition existed. Radolec and Severini were of the opinion that, in
their experience, there was no difference between the two sections of the report, and that any
entries were regarded as notifications of hazardous conditions. Tr. 100, 179-80.
As the section advanced, the feeder and belt tailpiece were periodically moved further
inby, extending the belt. Belt moves were done about twice a week. Tr. 242. Cumberland's
standard procedure was to clean up loose coal with a scoop from the tailpiece to the next crosscut
inby, where the feeder was going to be moved. ·Loose coal around the feeder would be shoveled
onto the belt. The area then would be fling dusted, using a mechanical duster mounted on a
scoop, and the feeder and iailpiece would be moved inby one crosscut. The construction
department would be notified and bulk rock dusting would be done after the move. Tr. 242-45.
Cumberland argues that the entries, "needs dusted," merely are reports that the bulk dusting had
not yet occurred. A comparison of the preshift reports with reports of bulk tock dusting
introduced by Cumberland lends some credence to Cumberland's explanation. The miner crews
that perform bulk rock dusting submit a report, identifying where rock dust was applied, and how
much of it was dispensed. Tr. 245-50; ex. R-3. Preshift reports for September 22, 23 and 24,
indicate that the 8 Butt belt entry from crosscut #17 to the tailpiece needed dusting. Ex. G-5 at
22-27. A rock dust report for September 24 indicates that bulk dusting was done that day from
crosscut # 17 to crosscut # 19. Ex. R-3. A later preshift report for September 24, and subsequent
reports, reflect that fact, because the #17 to #19 area is no longer identified as needing rock dust.
Ex. G-5 at 29-33. Preshi:ftreports for September 24 through 27 show the area from crosscut #19
to the tailpiece needing dust. A rock dust report for September 27, indicates that dusting was
done from crosscuts # 19 to #22. Preshift reports thereafter indicate that that area no longer
needed dusting. Likewise, a rock dust report for October 2 indicates that the area from crosscuts
#23 to #25 was dusted, and preshift reports thereafter indicate that the area from crosscut #25
outby no longer needed dusting. 21 Curiously, preshi:ft reports from September 25 through
October 4 state that the area between crosscuts # 11 and # 16 needed dusting, and there are no rock
dust reports showing that that occurred. On his October 4 inspection, Radolec walked the area
from crosscut #11 inby and found no hazardous conditions. Tr. 69, 93.

21

The reports are not entirely consistent. A rock dust report for October 3 states that
bulk dusting was done in the belt entry between crosscuts #24 and #27. Ex. R-3. However,
preshi:ft reports 9:00 p.m. on October 3 and 5:00 a.m. on October 4 continue to show a need for
bulk dusting from crosscut #25 inby. Ex. G-5 at 84, 87.
31FMSHRC155

Preshift examiners are required to "examine for hazardous conditions," make a record of
any hazardous condition found, and either immediately correct it or post the area with a
conspicuous danger sign. 30 C.F.R. §§ 75.360(b), {f), 75.363. Cumberland's records ofpreshift
examinations reported that no "Dangerous and Hazardous Conditions" were found during the
examinations. Those conducting the examinations and reporting the results, noted conditions in
the "violation or condition" section of the report that they did not consider hazardous, and mine
managers reviewing the reports did not consider them to be reports of hazardous conditions.
Neither preshift examiners, nor higher level managers, took steps to immediately correct such
conditions, or to bar miners from entering the areas until the conditions were corrected. They
obviously did not consider them to be hazardous conditions that required such attention.
The notations that portions of the belt entry needed rock dusting, and that the condition
had been reported, do not, on their face, indicate the existence of a hazardous condition. A
manager, reviewing the reports in sequence, would have seen a need for the application of bulk
rock dust, that the condition bad been reported, and that bulk rock dust application was
progressing in the entry. The area reported as needing dusting progressed from #17 crosscut on
September 22, to the #22 crosscut on September 27, to the #25 crosscut on October 2.
I find that, while the preshift reports put higher level mine managers on notice that bulk
rock dusting was yet to occur, they did not notify them that any hazardous condition existed, or
that the cited accumulations existed. Cumberland is, nevertheless, chargeable with knowledge of
the accumulations, because preshift examiners act as agents of the operator when conducting
such examinations. Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194-96 {Feb. 1991);
Pocahontas Fuel Co., 8 IBMA 136, 146-48 (Sept. 1977), aff'd, 590 F.2d 95 (4th Cir. 1979).
From September 30 through October 3, eight different preshift examiners noted that the
conditions in the belt entry from crosscut #25 iii.by needed to be bulk rock dusted. Ex. G-5 at 6384. They obviously did not regard the conditions as hazardous, and needing immediate attention.
While the preshift examiners are chargeable, as agents of Cumberland, with knowledge of the
accumulations, higher level managers had no such knowledge.
The Secretary argues that Cumberland was put on notice that increased efforts to address
accumulations were needed because it was cited 63 times in the prior two-year period for
violations of section 75.400. Radolec took that into account in detennining to cite the violation
as an unwarrantable failure. Tr. 93, 140-41. However, he acknowledged that the standard
applies to a wide variety of situations, and is the most cited standard in the nation. Tr. 140-41;
While Severini agreed with Radolec's assessment of negligence, he did not find the fact that
Cumberland had been cited for 63 violations of section 75.400 to be of significance. It did not
affect his assessment of whether the violation was the result of an unwarrantable failure, because
section 7 5 .400 covers a broad range of conditions, such that 63 violations was "just not a true
number to this situation." Tr. 177-78. I agree with Cumberland's argument that to establish that
it had been put on notice that additional compliance efforts were needed, the Secretary was
required to show more than a history of prior citations for violations of the broad standard, and
find that Cumberland had not been put on notice that additional compliance efforts were needed.

31FMSHRC156

Considering all of these factors, I find that the violation was not the result of
Cumberland's unwarrantable failure, and that its negligence was moderate to high. The fact that
eight different preshift examiners,· including Nairn, did not regard the conditions as hazardous
reflects more an honest disagreement over whether a hazardous violation existed than aggravated
conduct constituting more than ordinary negligence.
Order No. 7025469
Order No. 7025469, which was issued in conjunction with Citation No. 7025468, alleges
a violation of 30 C.F.R. § 75.363(a), which requires that hazardous conditions found during
preshift examinations be corrected immediately or be posted with a conspicuous danger sign and
remain so posted until the hazardous condition is corrected. The alleged violation was described
in the Condition and Practice section of the Order as follows:
The mine operator failed to correct immediately a hazardous condition reported in
the pre shift examination book. The hazardous condition recorded stated the
condition 8 Butt conveyor belt needed rock dusted from No. 25 to 30. This
hazardous condition was first recorded in the pre shift record book on the surface
on 9/25/2007, 8:00 P.M. to 8:40 P.M. and [continued] to be recorded with out any
corrective action being taken to correct the condition including this days pre shift
· examination· I 0/04/2007 day shift. An inspection of this hazardous condition was
conducted this day and as a result of this days inspection, Citation No. 7025468.
was issued for a violation of75.400 (accumulations of combustible materials
existing). Also during the time the inspection was being conducted no miners
were observed working to correct the hazardous condition recorded in the pre shift
record book. This type of violation has been issued 0 times during the last 2 years
at this mine.

Ex. G-6.
Radolec determined that it was highly likely that the violation would result in a fatal
injury, that the violation was S&S, that 13 persons were affected, and that the operator's
negligence was high. The Order was issued pursuant to section 104(d)(l) of the Act, and alleged
that the violation was the result of the operator's unwarrantable failure to comply with the
mandatory standard.
As noted in the discussion of Citation No. 7025468, I found that notations in the preshift
reports that areas of the belt entry needed rock dusting did not report a hazardous condition that
required immediate correction under the preshift regulations. However, I did find that the
accumulations violated section 75.400. While the violation was not S&S, the accumulations
presented a measure of danger to safety, and should have been specifically identified and
reported as such by the preshift examiners. As Radolec stated, to be properly reported in the
preshift report, the specific conditions, as noted by him, should have been reported. Tr. 99, 161.

31FMSHRC157

Consequently, the regulation was violated.
For the same reasons that I found the accumulations violation was not S&S, I find that
this violation was not S&S, but was unlikely to result in a lost workdays injury to one miner.
Ljkewise, I find that it was not the result of Cumberland's unwarrantable failure and that
Cumberland's negligence was moderate to high.
Order No. 7025481
Order No. 7025481, which was issued on October 11, 2007, pursuant to section 104(b) of
the Act, alleges that Cumberland failed to timely abate the accumulations violation that was the
subject of Citation No. 7025468. Radolec's rational for issuing the Order was described in the
Condition and Practice section as follows:
No effort was made to remove accumulations of dry black coal fines in the ·
conveyor belt entry of the 8 Butt 027-0 (M.M.U.) number one entry between
number 29 and 30 cross cut, after an extension of time had been granted from the
initial citation teniiination time. An extension of time was granted on 10/09/2007,
12:45 P.M. for the condition to be corrected by 2:45 P.M. Upon inspection of the
area on 10/11/2007 10:30 [AJ.M. the accumulation of coal fines still existed at the
same location and no miners were at work to correct the conditfon when
inspected. This type of violation has been cited 65 times at this mine during the
past two years.

Ex. G-10.
Section 104(b) of the Act provides:

If, upon any follow-up inspection of a coal or other mine, an authorized
representative of the Secretary finds (1) that a violation described in a citation
issued pursuant to subsection (a) has not been totally abated within the period of
time as originally fixed therein or as subsequently extended, ai:ld (2) that the
period of time for the abatement should not be further extended, he shall
determine the extent of the area affected by the violation and shall promptly issue
an order requiring the operator of such mine or his agent to immediately cause all
persons, except those persons referred to in subsection (c), to be withdrawn from,
and to be prohibited from entering, such area until an authorized representative of
the Secretary determines that such violation has been abated. ·
30 u.s.c. § 814(b).
The Secretary contends that, in the area between the #29 and #30 crosscuts, the original
accumulations cited on October 4 had not been cleaned up adequately, were present on October 9
31FMSHRC158

when additional time for abatement was granted, and remained in their original condition on
October 11 when Radolec issued the section 104(b) order. Cumberland argues that the original
accumulations in that area had been cleaned up and that any accumulations present on October
11 were most likely deposited on October 10, such that issuance of the order was an abuse of
discretion.
In order to present a prima facie case that a section 104(b) withdrawal order was properly
issued, the Secretary must prove that the originally cited condition continued to exist after the
period allowed for abatement expired. Mid-Continent Resources, Inc., 11 FMSHRC 505, 509
(Apr. 1989). The operator may rebut the Secretary's prima facie case by showing that the
conditions in the citation had been abated within the period allowed, but that they recurred. The
operator may also challenge the reasonableness of the time period set for abatement, or the
Secretary's refusal the extend the period. Energy West Mining Co., 18 FMSHRC 565, 568 (Apr.
1996). The burden is on the operator "to bring to MSHA's attention any specific abatement
measures justifying extension of the abatement period." Energy West Mining Co. v. FMSHRC,
111 F.3d 900, 904 (D.C. Cir. 1997). In evaluating whether an inspector has abused his discretion
in issuing a section 104(b) withdrawal order, in lieu of extending the abatement period, the
following factors should oe considered: 1) the degree of danger that extension would have caused
to miners; 2) the diligence of the operator in attempting to meet the date originally set for
abatement; and, 3) the disruptive effect that an extension of time, or a failure to extend the time,
would have had upon operating shifts. Youghiogheny and Ohio Coal Co., 8 FMSHRC 330, 339
(Mar. 1986).

The underlying citation was issued on October 4, 2007, at 8:40 a.m., and identified in
detail the affected areas. The originally specified abatement deadline was 12:00 noon, on
October 4. However, because Radolec did not return to the mine until October 9, the abatement
time was, in effect, extended from three hours and 20 minutes to five days, including a weekend
and a holiday. On October 4, when the citation was issued a crew of eight to ten miners began to
clean up the accumulations. They were told by Konosky to clean from rib to rib, and worked for
about an hour until the inspection party left, and continued to work thereafter. Preshift reports
for October 4 examinations noted that the area was being worked on. The 9:00 p.m. report
showed that the area from #25 to #29.5 had been "corrected," and that the area from #29.5 to the
tailpiece at #30.5 had been "reported." Ex. G-5 at 92. The report of the 5:00 a.m. examination
on October 5 noted that the #29.5 to tailpiece conditions had been "corrected," and subsequent
reports noted no conditions in the area. Ex. G-5 at 93. Rock dust reports purport to show that
bulk dusting was done on October 4 from crosscut #25.5 to the tailpiece. Ex. R-3.
When Radolec examined the area on October 9, he was satisfied that about 75% of the
cleanup had been done and the area had been well dusted. However, he believed that the area
between crosscuts #29 and #30 had not been cleaned. He spoke to Fred Evans, a Cumberland
safety representative, about the failure to clean, and gave Cumberland another two hours, until
2:45 p.m. to complete the abatement. Ex. G-4. Evans believed that the area was clean, under
any realistic standard, noting that ''you would have had to scrape it to get it any cleaner."

31FMSHRC159

Tr. 267. He explained that the continuous miner'sround cutting head left indentations in the
mine floor that a scoop could not completely clean~ Tr. 271. fu his opinion, the only difference·
between the areas #29 to #30 and #25 to #29 was that the latter had been heavily rock dusted.
Tr. 274. He got two miners to scrape and clean the area. Radolec gave the men a safety talk and,
with Evans, marked where cleaning needed to be done with red tape. Evans checked with the
shift foreman later, and was told the cleanup had been completed. He also told the afternoon
shift foreman to check on the area, and was advised the next day that it "looked alright." Tr. 269.
Preshift reports for October 9 show that the area from crosscut #29 to the tailpiece needed
dusting, and by 9:00 p.m. had been "corrected."
When Radolec returned on October 11 he observed what he believed to be the same
conditions he had observed two days earlier, and concluded that no more work had been done
after he left. At I 0:30 a.m., he issued the section 104(b) order, which effectively shut down the
belt and ceased production on that section. He wanted the fines removed and the area blanket
dusted. At noon he was advised that the work had been done and that the order should be lifted.
However, he required that more rock dust be applied, and eventually terminated the order at 1:20
p.m. Five miners had worked on the cleanup effort, and others carried 40 pound rock dust bags
to the area.
Walter Lemenovich, an MSHA trainee inspector, accompanied Radolec on October 11,
and con:fii:riied the existence of dry accumulations of coal fines under the belt ranging from zero
to four inches deep. Radolec told him, upon seeing the conditions, "this is where they stopped
cleaning." Tr. 203. Lemenovich overheard miners in the "dinner hole" questioning why they
were shoveling, apparently suggesting that they did not feel that whatever loose coal was there
needed to be removed. Tr. 205. Percy, who was with Radolec on the 11th, thought that the area
from #25 to #30 looked "pretty nice." Tr, 286. He could see shovel marks in the #29 to #30
area, and small irregularly spaced piles of wet fines 18 to 24 inches in diameter and 0 to 2 inches
deep, for about 80 feet. Tr. 287-89. Radolec kicked at the piles, and inquired ''what's this?" To
which Percy responded I think it's pretty good. According to Peny, Radolec then whirled and
showed him a 104(b) order. Tr. 288.
Cumberland's first argument is that its documented abatement efforts prove that the
conditions were completely abated, and that any coal fines present on the 11th could not have
been the same material that was cited on the 4th or was there. on the 9th. It notes that a preshift
report for October 10 shows spillage at the tailpiece. However, that report also shows that the
condition had been "corrected," and no one suggested to Radolec that the material that was under
the belt on the 11th between crosscuts #29 and #30 was the result of spillage that occurred on the
10th at the tailpiece which was located at crosscut #30.5. As noted above, Radolec testified,
under questioning by Cumberland's counsel, that no additional material had been deposited
between the 4th and the 9th, i.e., there was no ongoing spillage in the area, and that it was a
"pretty good belt." Tr. 133. I find that there were irregularly spaced "piles" of coal fines and
loose coal, approximately 24 inches in diameter, ranging from zero to two to four inches deep,
located under the belt from the #29 to the #30 crosscut, and that it was part of the accumulations

31 FMSHRC 160

that had been cited on October 4. Cumberland's argument that the material was newly deposited
is not supported by the evidence.

In deciding to issue the section I 04(b) order, Radolec necessarily decided that no
additional time should be allowed to abate the condition. It is appropriate, therefore, to assess
whether he acted reasonably, or arbitrarily, by analyzing the factors identified in Youghiogheny. .·
A further extension of time, e.g., two more hours, would have allowed the limited accumulations
to remain in a decreasing amount over another one-to-two-hour period.22 I have held, in relation
to the October 4 citation,· that the entirety of the accumulations on October 4 did not present a
high degree of danger to miners. While Radolec determined that the violation was S&S, he did
not consider issuing an imminent danger order pursuant to section 107(a) of the Act. By October
9, at least 75% of the area had been cleaned and heavily dusted, and some rock dust had been
deposited in the #29 to #30 area. While there were some irregular piles of coal fines present, the
measure of danger to miners by allowing additional abatement time, e.g., four hours, would have
been minimal.
Cumberland had been reasonably diligent in abating the violation, at least up to a point.
Substantial effort was expended on October 4, when the violation was cited. Preshift and rock
dust reports confinn efforts to correct the cited conditions. Additional efforts were expended on
October 9, when Radolec determined that the condition had not been completely abated.
Radolec was convinced that the two miners who were shoveling on the 9th stopped when he left
the area and that no further work was done. Completion of the abatement effort on October 11
consumed about three hours of work by a crew of five miners, plus rock dust carriers. About half
of that time was devoted to cleaning up the accumulations. As noted above, I find that Cumberland exhibited diligence in abating the violation, but that it could have been more diligent
by assuring that the miners who started cleaning on the 9th completed the job.
Issuance of section 104(b) order is a very powerful tool in the Secretary's enforcement
arsenal. An inspector can force stoppage of production, without prior notice and opportunity for
a hearing, and substantial disruption of mining operations can occur. Shutting down the belt
caused disruption of that regular production shift. However, it may not have been as disruptive
as if it had happened at a different time. Lemenovich testified that Cumberland normally shut
down for a half day on Thursdays (October 11, 2007, was a Thursday). No witness contradicted
that testimony. The 104(b) order was issued at 10:30 a.m. While it was not terminated until 1:20
p.m., its actual impact may have been limited to a shorter period.
Whether Radolec abused his discretion by issuing the withdrawal order is a very close
question. There is evidence that he may have been unreasonable in insisting on excessive

22

From the evidence regarding the abatement effort, it appears that the fines would have
been cleaned up in approximately four hours, considering that a smaller crew would have been
available. Distribution of rock dust would have had to occur after the cleanup.
31 FMSHRC 161

abatement measures. 23 The measure of danger to miners that would have attended another brief
extension of the abatement period would have been small, and the disruption caused by issuing
tbe order was significant. Had he issued it on October 9, when he first observed that
accumulations remained in the area, it is doubtful that the order could have been sustained.
However, he did not do so. Rather, he explained in some detail what he believed to be necessary
abatement actions, and marked specific areas in question with red tape to assure that there was no
misunderstanding about what needed to be done. Two days later, the area had still not been
cleaned and dusted to his satisfaction. Bohach protested that issuing the order was "very strong"
enforcement action and that the problem may have been the result of miscommunication.
Tr. 435. The order certainly was strong enforcement action, but the conditions that lead to its
issuance were not the result of miscommunication.
Upon consideration of all the evidence, I find that Radolec did not abuse his discretion in
issuing the section 104(b) withdrawal order.24 I am troubled by the fact that, in deciding to issue
the order, he apparently did not specifically weigh the three factors identified in Youghiogheny.
H:owever, on balance, the lack of diligence that he perceived following his specific instructions
on October 9, coupled.with the small measure of danger to miners that would have been posed by
briefly extending the abatement time, outweighed the disruption caused by issuance of the order.
Order No. 7025480
Order No. 7025480 was issued on October 11, 2007, and alleges a violation of 30 C.F.R.
§ 75.400, which was described in the "Condition and Practice" section of the Order as follows:

An accumulation of combustible material consisting of wooden pallets, plastic 1
gallon containers, open empty 5 gallon oil cans, card board boxes, ventilation
cloth, brown paper bags, resin glue boxes, 3 sheets of card board and 6 crushed 5
gallon oil cans existed at number I 0 cross-cut. Also an accumulation of
combustibility material consisting of a large garbage bag full of 8 open empty 5
gal hydraulic oil cans and plastic 5 gallon containers existed in the cross-cut of
number 20 cross-cut. This condition exist along the active coal producing 8 Butt
027-0 (M.M.U.) intake escapeway ventilation air course and track haulage. This
condition was reported in the pre-s}rift record book on the surface dated .
1010612007 08:00 P.M. to 09:25 P.M. at number 10 cross-cut and then on

23

As noted above, Duke thought that some unnecessary shoveling of rib sloughage had
been required on October 4. In addition, several Cumberland managers, including Evans, who
h~d retired by the time he testified, were of the opinion that the area was clean under any
reasonable definition of the term.
24

Cumberland argues that section 104(b) orders cannot be issued for failures to abate
citations issued pursuant to section 104(d) of the Act. I reject that argument, as one other ALJ
has. Pretzel Excavating, 12 FMSHRC 1308, 1317-18 (June 1990) (AU).
31 FMSHRC 162

10/09/2007, 12:35 P.M. to 01 :35 P.M. report of garbage at number 20 cross-cut
along with the garbage at number 10 cross-cut and continued including in the preshift record book for this dayshi:ft, 10/11/2007. This type of violation has been
cited 64 times at this mine in the past two years. Also this is a mine that liberates
methane in excess of 1 million Cu. Feet of methane gas in a 24 hour period and is
on a M.S.H.A. 5 day spot inspect schedule.
Ex. G-8.
As issued, the Order alleged that it was highly likely that the violation would result in a
permanently disabling injury, that the violation was S&S, that 10 persons were affected, and that
the operator's negligence was high. The Order was issued pursuant to section 104(d)(l) of the
Act, and alleged that the violation was the result of the operator's unwarrantable failure to
comply with the mandatory standard. However, when Severini reviewed the Order with Radolec
on October 12, 2007, it was modified to allege that it was unlikely that the violation would result
in an injury, that the violation was not S&S, and that no persons were affected. The reasons for
the modification of the Order were stated as:
After farther review and evaluation by the issuing coal mine inspector. Of all the
facts surrounding. For this type of accumulation of combustible material and
there location. To add into a acceleration of a coal dust or methane gas explosion.
It has been determined that this type and am.omit of combustible materials and
location of these materials. That they would not be a farther enhancement to a
coal dust or methane gas explosion propagation. This determination has been
evaluated for this particular condition, location and time. This order is being
modified to reduce the gravity of the subject order. (no corrections made)
Ex. G-8.
The Violation
There is no dispute that the materials cited as trash were present, as Radolec described
them, at the # 10 and #20 crosscuts, in the track entry. Perry agreed that the materials were at
those locations. Tr. 517. Radolec noted in the Order that the trash at crosscut #10 had been
noted on preshift reports since October 6, and that the trash at crosscut #20 had been noted since
October 9. Ex. G-8. At the hearing he testified that the conditions had been reported since
September 28. Tr. 463. He was mistaken. While the preshift reports show that trash had been
noted in the haulage entry at crosscuts #10 and #20 from September 28 to October 1, the
condition was noted as "corrected" on October 1, and there are no reports of trash at either
location until 9:00 p.m. on October 5, when trash was noted at crosscut #10. Ex. G-5 at 62-70,
97. Trash was not noted at crosscut #20 until October 9. Ex. G-5 at 13.

31 FMSHRC 163

The Secretary's regulations require that mine operators establish a program for regular
cleanup and removal of combustible materials. 30 C.F.R § 75.400-2. The provisions of the
program are not subject to MSHA approval, and thus are largely within the mine operator's
discretion. Cumberland's cleanup program provided that trash was to be hauled to the section
supply point "as necessary to facilitate its removal from the mine." Ex. G-9. Nairn explained
that active mining generates a great deal of trash, as is evident from the descriptions of the cited
trash deposits. Tr. 533-34. Removal of trash is an ongoing process, and is done on a shift-byshift basis. Tr. 532. Typically, it is done on the midnight shift, when supplies are delivered to
the section. An empty supply car, or garbage car, would be loaded with trash and taken out of
the mine. Tr. 529-30. There is no set schedule for trash removal. Tr. 463, 521. It might occur
during the same shift it was deposited, or could take several shifts if an empty car on which to
load the trash was not available. Tr. 533-34. The section's trash was accumulated at crosscut
#20, a designated location, and was placed in a large plastic bag hung on the rib. Tr. 513-14.
Unbeknownst to Radolec, Cumberland also had an outby work site where a de"'.'gas hole was
being drilled. Tr. 467, 515. Crosscut #10, at the trackentry, was the designated location for the
temporary deposit of trash generated by that operation. Tr. 515, 527-31. Crosscuts # 10 and #20
were designated areas for the accumulation and removal of trash under Cumberland's cleanup
program, and the preshift reports show periodic notations of trash at those locations. Radolec
placed considerable significance on the fact that the trash was not at crosscut #25, which he
believed was the section supply point. Tr. 484. However, whether the #20 and #10 crosscuts
·were "section supply points," is not material to whether a violation was committed. As Radolec
explained in response another question, you have to apply common sense to an evaluation of the
process, and it appears that designating those points as trash collection locations was not a
deviation from the cleanup program. Tr. 491-92.
As observed in other reported decisions, the standard does not require that trash be
removed from a mine immediately. See, e.g., Basin Res. Inc., 19 FMSHRC 711, 717-18 (Apr.
1997) (ALJ). However, if a significant accumulation of combustible trash is allowed to remain
in the mine for an unreasonable period of time, section 75.400 may be violated. Basin Res. Inc.,
19 FMSHRC 1391, 1403 (Aug. 1997) (AU). As described by Cumberland's witnesses, while
there was no set schedule for removal of trash, it typically would have been removed within 24
hours. Tr. 533-34. As Perry stated, it generally doesn'tsit for days, and if it has not been
removed in a week, someone is not doing his job. Tr. 521.
I place little significance in the fact that there was trash at crosscut #20. That was a
designated trash accumulation site for the section, and had been cleaned on October 1. No
notations of the existence of trash at that location appear in the preshift reports until October 9,
le$s than two full days before the issuance of the Order. 25 While its presence for that lengthof
time is of concern, the fact that the trash was coilected in a large bag which was practically full,

25

Severini observed trash at the #20 crosscut on October 4, and discussed its presence
with Cumberland personnel. The condition was not cited as a violation, and there is no evidence
that the trash, which was at the section's trash collection site, remained there until October 11.
31 FMSHRC 164

and was located at a designated point for removal appears to be consistent with the established
cleanup program. The trash at crosscut #10, however, is a different matter. That trash was
associated with the outby de-gas operation. It made sense to designate crosscut #10 as a place to
accumulate the trash, rather than haul it inby to crosscut #20. However, it was a significant
accumulation oflargely combustible material and, judging from the preshift reports, had been
allowed to remain in place since October 5, about 6 days. I find that Cumberland allowed a
significant accumulation of combustible material to remain at the #10 crosscut in the track entry.
for several days. The trash was allowed to accumulate and was not cleaned up, in violation of
section 75.400.
Cumberland makes several arguments challenging the violation. At least two do not
require extended discussion. It argues that trash is not a hazard intended to be prevented by
section 75.400, because it was not likely to cause a fire. Cont. Br. at 63-64. However, as noted
in Utah Power & Light Co., 12 FMSHRC 965 (May 1990), the case cited by Cumberland for the
proposition, the standard addresses accumulations of combustible materials that can cause a fire
"if an ignition source is present." 12 FMSHRC at 968 (emphasis added). Certainly, the paper
bags, wooden pallets, cardboard and plastic items could readily catch fire in the presence of an
ignition source. Cumberland also contends that no reasonable person could anticipate that
accumulations of trash that remain in a mine for several days could amount to a violation of the
standard. However, the Commission has sustained violations of section 75.400 based upon
accumulations of trash, and Cumberland itself has been cited for such violations in the past.: Jim
Walter Res. Inc., 18 FMSHRC 508, 509-10 (Apr. 1996); Tr. 518.
Cumberland argues that there is no evidence to establish that the trash present on October
11 had been there six days earlier or at any point in the past. However, while I agree that
Radolec's reference to September 28 was an erroneous reading of the preshift reports, those
reports indicate the presence of trash accumulations at the #10 from October 5 to October 11.
While the Secretary's witnesses did not personally observe the trash at those earlier times, and
could not testify that it was, in fact, the same trash, it is reasonable to infer from the continuous
reports of trash at that location, that a large portion of the trash observed on October 11 had been
there since October 5.
Unwarrantable Failure
The violation, as modified, was not S&S, and was determined to be unlikely to result in
an injury, involving ''No Lost Workdays." Ex. G-8. At the hearing, Radolec and Severini
retrenched a little on their evaluation of gravity, stating that ohe miner was affected, rather than
none, and describing a potential injury as smoke inhalation or burns. Tr. 460, 486, 509.
Nevertheless, I find that the violation presented a low degree of danger to miners. 26 The trash
26

Radolec cited the fact that the mine is "gassy," and is subject to 5-day spot
inspections. He did not note that he tested the atmosphere in the track entry and found no
methane. Tr. 470. Without more, I find the fact that the mine was gassy does not enhance the
31 FMSHRC 165

aecumulation at crosscut #10 was significant, occupying an area approximately 8 feet by 35 feet,
a$ of October 11. It most likely was not that large on October 5, because it would have been
added-to until the 11th. It was bagged or stacked at the trash loadout point for the de-gas project.
Tr. 514-15, 528. I find that the condition was not extensive. It existed for six days, and mine
management was on notice that the trash needed to be picked up and transported out of the mine.
Cumberland appears to have been following its cleanup program. However, the intervals
between .trash· pick-ups, particularly at the # 10 outby work site, had been allowed to grow too
long. As with the initial accumulations violation, Radolec placed great significance on the noting
of the conditions in the preshift reports, believing that they had been identified as hazards to
upper level management. Tr. 463-65, 467. However, as pointed out in the discussion of the
imtial citation, the notations were not in the "hazards" section of the reports, and Cumberland's
examiriers noted non-hazardous conditions in the reports. 27 Radolec also noted the fa~t that
Cumberland had been cited 64 times for accumulations violations in the last two years.
However, for the reasons expressed by Severini with respect to the coal accumulations citation, I
find that fact insufficient to put Cumberland on notice that greater efforts were need_ed to address
·
accumulations of trash.
On the whole, considering all of the factors addressed above. I find that the violation was
not the result of Cumberlarid' s unwarrantable failure, but that its negligence was moderate.
ORDER

Order No. 7025481 is AFFIRMED, and Citation No. 7025468, Order No. 7025469 and
Order No. 7025480 are modified to citations issued. pursuant to section 104(a) of the Act, and are
AFFIRMED, as modified.

danger to miners of this violation.
27

Nairn testified that he would not note the presence of trash at a loadout point on a
preshift report, except to pass information on to a supervisor of an area he was not responsible
for. Tr. 536-39.
31 FMSHRC 166

Distribution:
Donald K. Neely, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center,
Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty
Avenue, Pittsburgh, PA 15222

31 FMSHRC 167

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

January 26, 2009
R S & W COAL COMPANY, INC.,
Contestant

v.

CONTEST PROCEEDING
Docket No. PENN 2009-97-R
Citation No. 7011308; 11/03/2008
Order No. 7011310; 11/05/2008

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
Respondent

RS & WDrift
Mine ID 36-01818

B & B COAL COMPANY,
Contestant

CONTEST PROCEEDING

v.

Docket No. PENN 2009-98-R
Citation No. 7001051; 11/03/2008
Order No. 7001053; 11/05/2008

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
Respondent

Rock Ridge No. 1 Slope
Mine ID 36-07741

BEAR GAP COAL COMPANY,
Contestant

CONTEST PROCEEDING

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
Respondent

Docket No. PENN 2009-99-R
Citation No. 7011309; 11/03/2008
Order No. 7011311; 11/05/2008
N &LSlope
Mine ID 36-02203

DECISION
Appearances: Lynne Bowman Dunbar, Esq. and Thomas A. Paige, Esq., U.S. Department of
Labor, Arlington, Virginia, on behalf of the Respondent
Adele L. Abrams, Esq., Law Office of Adele L. Abrams, P.C., Beltsville,
Maryland, on behalf of the Contestants

31 FMSHRC 168

Judge Barbour

Before:

The captioned contest proceedings arise under Section 105(d) of the Federal Mine Safety
and Health Act of 1977. 30 U.S.C. § 815(d). In the cases RS&W Coal Company, Inc. (RS&W),
B&B Coal Company (B&B) and Bear Gap Coal Company (Bear Gap) contest the validity of
citations issued to each company for alleged violations of mandatory safety standard 30 C.F.R. §
75.370(a)(l ). 1 The citations allege the companies violated the standard when they failed to revise
their ventilation plans to require the main mine fans at the mines to be run for 1-Yi hours prior to
any persons entering the mines.
The citation issued to RS&W, which is substantially identical to the other two citations,
states in pertinent part:
On October 29, 2008, the approved ventilation plan (for
the RS&W mine] was revoked, however the operator is
continuing to operate without an approved ventilation
plan in violation of ... [section] 75.370(a)(l). On July 1,
July 9, and December 11, 2007, MSHA sent letters to
... [RS&W] requesting ... a revised ventilation plan
be submitted to the district manager. The operator was
notified that, based on the results of the analysis of air
samples, MSHA has determined that the ventilation
plan in effect is not adequate and, in MSHA's view,
the plan should require that the main mine fan be run
continuously, i.e., during both active and idle shifts.
In September[,] 2008, following extended negotiations,
the Independent Miners Association and MSHA
agreed that ... [RS&W] would operate the main mine
fan for 1 Yi hours before each shift, turning off the fan
daily. On October 21, 2008, MSHA sent a letter to
... [RS&W] giving [it] until October 28, 2008 to submit
the revised ventilation plan and warning ... that
failure to submit the revision would result in revocation
of the approved plan. The operator failed to submit
the revision. The condition has been designated
non-S&S [i.e., not a significant and substantial contribution to a mine safety hazard] because the
1

The standard requires operators to "develop and follow a ventilation plan approved by
the [MSHA] district manager." Once filed and approved, the agency retains the right to request
revisions of the plan and the right to revoke the plan if, after good faith negotiations, the district
manager and the operator fail to agree on the revisions. If the plan is revoked, the operator may
not operate its mine until it adopts a revised plan that is approved by the district manager.
31 FMSHRC 169

violation is the result of an impasse between the
parties in negotiating changes to the ventilation
plan. During the period in which the operator is
attempting to achieve abatement, it shall follow the
terms of the original ventilation plan.
Gov't Exh.2A.
As the citation indicates, once MSHA, acting through its district manager, detennined
revised ventilation plans were necessary, the agency and the companies entered into protracted
negotiations. During the negotiations the companies were represented by the Independent Miners
Association (IMA). 2 At one point, the agency believed the representative and, thus, the
companies agreed to revise their plans in a way that would be acceptable to MSHA. However,
the companies maintained no such agreement was reached, and they did not submit revised plans
to the district manager. This lead the agency to notify the companies by letter dated October 21,
2008, that they had until October 28 to submit the plans and, if they failed to do so, their existing
plans would be revoked. On October 29, MSHA revoked the companies' existing plans because
the companies had not complied with the agency's demands.
The contested citations were issued on November 3, 2008, and the agency gave the
cQmpanies until November 5, 2008, to submit acceptable plans (i.e., plans containing the
provision that the main mine fan would be run for at least 1-Yi hours before the miners entered
the mines at the start of the workday and before underground power circuits were energized).
The companies were warned if they did not submit acceptable plans, orders would be issued
closing their mines. Revised plans were not submitted, and the closure orders were issued.
The orders prompted the companies to request their contests of the validity of the
underlying section 104(a) citations be heard on an expedited basis. The cases were consolidated
and assigned to me, and following discussions with counsels, MSHA agreed to suspend
enforcement of the orders until the contest proceedings could be heard and decided.
The matters were called for trial on December 9, 2008, in Pottsville, Pennsylvania. At the
commencement of the hearing I summarized the issues.
The issues involved inclucle whether the companies
violated [s]ection 75.370(a)(l). As I understand the
law, the Secretary will have the burden of proving
the unsuitability of the provision [of the ventilation
plans] ... [to which she objects] and the ... suitability
of the provision upon which she ... insist[s]. This
2

The IMA is an organization of small, independent anthracite mine operators whose
purpose is to protect the interests of its members and to promote the use of anthracite coal.
31FMSHRC170

means the Secretary must prove a specific mine
hazard ... that is not addressed in the previously
approved plan[ s], and she must establish that the
hazardous condition, assuming she proves one,
is corrected by the [provision] she is insisting upon.
The Secretary cannot use the ... approval process
... to impose ... requirement[s] ... well suited to
all or nearly all mines so ... the Secretary must
show the provision addresses specific conditions
in the mines involved.
Tr. 6-7.
Opening statements then were offered by counsels, and one and one-half days of trial
followed, during which the Secretary presented the principal part of her case-in-chief and one of
the companies' witnesses was heard. During the noon break on the second day of the hearing
(December 10), the parties resumed negotiations to determine if they could resolve their
differences. At the beginriing of the afternoon session, counsel for the companies announced the
parties had reach an agreement. Counsel stated:
[T]he parties ... have come tci an agreement
after good faith negotiations that will modify
the existing plans and also modify the position
taken by MSHA .... [T]he same provisions
will apply to the revised plans for all three mines
and everything will remain the same[,] with the
change being made to the portion of the plan[s]
that stipulates how long the fan must run
following resumption of mining in an idle
period .... The current plans say the main
mine fan will be operated for .a minimum of
one half hour after the pressure recorder
indicates. that the normal mine ventilating
pressure has been reached prior to any person
entering the mine. That will be changed to
one hour. The Secretary's position [originally]
had been one and one half hours ... [In
addition,] the main mine fan will be operated
for a minimum of one hour after the pressure
recorder indicates ... the normal mine ventilating
pressure has been reached prior to energizing
power circuits entering underground areas of
the mine [and] prior to any person entering

31 FMSHRC 171

the mine.... All other provisions of the
currently approved plans will remain in effect.
The Government has agreed ... the operators
will have until 5[ :00] p.m., Eastern Standard Time
on Friday, December 12, 2009[,] to submit a revised
.. ; section of the plan[s] to the MSHA District ...
office, that ... [they] can be submitted by
facsimile [copy] but ... [the companies] will
also mail a hard copy to the MSHA office for
inclusion in the official mine ventilation plan.
Tr. 421-422.
Counsel for the companies further requested the contested citations be vacated, but[,] if ·
they were not vacated[,] that the violations of section 75.3 70(a)(l) contained in the citations be
assessed at not more than $112, which amount the operators agreed to pay. Tr. 423-424.
Counsel for the Secretary agreed with the provisions of the settlement as stated by counsel for the
companies, and the hearing was closed. Tr. 424.
ORDER
The settlement, which conforms in all rei;pects with the letter and spirit of the Act, IS
APPROVED. I note the companies have.filed with the agency revisions of their ventilation
plans containing the agreed-upon provisions, and the agency has approved the revised plans.
Nothing more remains to be done with regard to revising the plans.
With regard to the civil penalties for the violations of section 75.370(a)(l ), in a letter
dated January 9, 2009, one of the Secretary's counsels stated the agency assessed a civil penalty
of$162 against B&B Coal Co., and the company paid the amount. She further stated, upon
is$uance of this decision approving the settlement, MSHA will amend B&B's penalty to $112 to
conform to the settlement and will credit or refund $50 to B&B. Counsel also stated MSHA
asi:;essed civil penalties of $100 each against RS&W and Bear Gap for their violations of section
75.370(a)(l) and will consider payments in that amount as fully satisfying the agreement.

31 FMSHRC 172

ACCORDINGLY, within 30 days of the date of this decision, the Secretary IS
ORDERED to credit or refund $50 to B&B in compliance with the terms of the settlement, and,
if they have not already done so, within the same 30 days, RS&W and Bear Gap ARE
ORDERED to pay $100 each to the Secretary for the violatiop.s of section 75.370(a)(l)
contained in the contested citations. Upon the Secretary's credit or refund to B&B of $50 and
RS&W's and Bear Gap's payment to the Secretary of $100 each, these proceedings ARE
DISMISSED.

Administrative Law Judge
Distribution: (Certified Mail)
Lynne Bowman Dunbar, Esq., Thomas A Paige, Esq., U.S. Department of Labor, 1100 Wilson
Blvd., Office of the Solicitor, Room 2226, Arlington, VA 22209-2296
Adele L. Abrams, Esq., DianaR. Schroeher, Esq., Law Office of Adele L.Abrams, P.C., 4740
Corridor Place, Suite D, Beltsville, MD 20705

/ej

31 FMSHRC 173

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9964 /FAX: 202-434-9949

January 27, 2009
CNIL PENALTY PROCEEDING

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

Docket No. WEYA 2007-335
A.C. No. 46-01456-111046

v.
EASTERN ASSOCIATED COAL CORP.,
Respondent

Federal No. 2

DECISION
Appearances: John M. Strawn, Esq., Office of the Solicitor, U.S: Department of Labor,
Philadelphia, Pennsylvania, for the Petitioner;
R. Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania, for the
· Respondent.
Before:

Judge Weisberger

Statement of the Case
This case is before me based upon a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor ("Secretary''), alleging violations by Eastern Associated Coal Corporation
("Eastern") of various mandatory standards set forth in Title 30 of the Code of Federal
Regulations.
On July 17, 2006, MSHA Inspector Jason Rinehart inspected Eastem's Federal No. 2
Mine, an underground coal mine. He observed seven areas of unsupported roof in the 7 Right
empty track and issued Order No. 6602108 under Section 104(d)(2) of the Federal Mine Safety
and Health Act of 1977 {"The Act"), alleging a violation of 30 C.F.R. § 75.202(a).

On October 4, 2006, MSHA Inspector David Severini observed accumulations ofloose
coal and float coal dust while inspecting a belt entry near the longwall face. These conditions
had not been noted in the pre-shift examination record book. Severini issued Order No. 6603046
under Section 104(d)(l) of the Act, alleging a violation of 30 C.F.R. § 75.360(a)(l).

31 FMSHRC 174

On July 9 and 10, 2008, a hearing was held on this matter in Washington, Pennsylvania. 1
. Subsequent to the hearing, the parties each filed proposed findings of fact and a brief.

I.

Order No. 6602108
A.

Introduction

The 7 Right empty track is a track entry with two rails running down the center of the
entry. One side of the entry ("the wire side''), between the rails and left rib facing inby, contains
.an overhead trolley wire that supplies power to vehicles traveling on the rails. The other side of
the entry between the rails and the right rib facing inby is used as a walkway for foot traffic (''the
walk side" or "walkway''). The track is approximately 7,000 feet long and is utilized to store
unused coal cars.
The roof in the entry, which has been in existence for over thirty years; is supported by a
series ofroofbolts located generally in the center of the entry, and straps located between the
bolts. After the initial bolting when the entry was developed, additional bolts, post, and cribs
were installed in the area. B.

Findings of Fact and Discussion

L

The Secretaty's Case

According to Rinehart, when he made his inspection on July 17, 2006, the roof and ribs
had deteriorated at seven2 locations in the entry, and the roof was not adequately supported.
Rinehart observed that in an area3 that extended fifteen feet parallel to the last row of
bolts, there were not any bolts or other means of roof support for a seven foot distance between
the bolts and the wire side rib. According to Rinehart, a hazard was created inasmuch as
subsequent to the initial installation of roof bolts when the entry was first developed, the width of
the entry and the distance between the last row of bolts parallel to the rails and the ribs had
increased, due to rib sloughage. Rinehart opined that miners who worked or traveled on the wire
side of the entry, such as examiners, pumpers, electricians and maintenance men, were exposed

1

At the hearing, the parties filed a Motion for Decision and Order Approving Partial.
Settlement setting forth their agreement to settle nine of the eleven citations at issue. The Motion
is granted for the reasons set forth below. (III, iefra)
2

He testified regarding his observations at six locations. The seventh location is set forth
in the order as follows: "Between No 14 and No. 15 car marker, there is an area 7 feet by 7 feet
not bolted. The roof has deteriorated and potted out." (Government Exhibit 1)
3

The left rectifier area.
31FMSHRC175

to falling rock from the roof. In addition, he alleged that falling material could bring down the
trolley wire and cause a fire or an ignition.
According to Rinehart, the ribs had sloughed off on the inby and outby comers of the
intersection on the wire side at the No. 2 car marker. 4 The sloughage had also enlarged the width
of the entry. Rinehart indicated that the roof had potted out between roof bolts, leaving an
unsupported area eight to ten feet wide and more than sixteen feet long through the intersection.
Rinehart observed objects on the floor under this portion of the roof. He opined that they had
fallen from the roof, and were "nothing like a total roof falling," but were "softball, basketball
size." (Tr. 39)
Rinehart indicated that an area of roof to the right of the cited area looking inby had
begun to pot out. He opined that intersections are a ''weak point" for support and are "typically
an area where a roof would fall." (Tr. 52) According to Rinehart, as potting increases due to
weathering of the roof between the bolts, the bolts will eventually lose their effectiveness as
support. Also, material from the roof will fall down and could cause injury to miners in the area.
He also opined that should the roof in the intersection "fall in," it could pull out some bolts,
causing injury to persons outside the intersection. (Tr. 5 I)
Rinehart observed that at the No. 215 car marker, in an area six feet by twelve feet, coal
had potted out between the existing roof bolts. He opined that if mining operations would
continue, the roof would eventually fall out around the bolts, which would result in inadequate
s"Qpport, and someone in the area could suffer an injury.
According to Rinehart, at the No. 108-110 car marker, he observed a sixteen foot long
area on each side of the last line of bolts where there was not any roof support in the seven foot
wide distance between the ribs and the last row of bolts on both sides of the entry, i.e., the
walkway and the wire side. He opined that a miner in the cited area could be hurt by falling roof
material.
Rinehart indicated that at the No. 108-107 car marker, for a distance of twelve feet, the
rib had sloughed off on the wire side. There was a seven foot distance between the last row of
bolts and the rib line that was not supported. Thus, miners walking under this area of the wire
side could have been injured by falling material.
According to Rinehart, at the No. 105 car marker on the walkway side, as a result of roof
sloughage, the distance between the rib line and the last row of bolts in the entry had increased to
seven feet. This condition extended for a linear distance of twelve feet. Accordingly, miners in
that area could have been injured by a roof fall. Rinehart opined that when the roof pots out
around a roof bolt, it eventually becomes loose and will no longer be tight against the roof. As a

4

Locations in the entry are designated by reference to a car marker number. The car
markers are twenty-one feet apart.
31 FMSHRC 176

consequence, it will not be able to continue to compress various roof strata, resulting in
decreased roof support.
As a result of his inspection, Rinehart issued an order under Section 104(d)(2) of the Act,
alleging a violation of Section 75.202(a), which provides as follows: "[t]he roof, face and ribs of
areas where persons work or travel shall be supported or otherwise controlled to protect persons
from hazards related to falls of the roof, face or ribs."
2.

The Respondent's Case

Daniel Edwin Kurry, Eastern's safety supervisor, was with Rinehart on the date of his
inspection. He indicated that in addition to the number of bolts that were initially installed, posts
have been set, and cribs have been built in the entry to provide additional support. Also, straps
were provided between bolts located in the center of the entry above the track, which provide
further compression of the roof. He opined that the entry has undergone "normal weathering"
(Tr. 150), and there have not been any reportable roof falls in the entry. He testified that "to my
knowledge" (Tr. 152), the roof in the entry is at its original height. He opined that this ''tells
him" that "roof stresses" or "pressure" on the roof is "very limited." (Tr. 151) In general, he
indicated that he did not hear any sounds, or observe cracks or small pieces falling from the roof
in the cited areas.
Kurry indicated that the maximum allowable distance from the last bolts to the rib is six
feet. He opined that an increase of this distance in some areas to only seven feet is "not a
distance that I feel will allow a roof fall to propagate into the supported area." (Tr. 156)
James Poe, who was a track boss in July 2006, indicated that fifteen bolts had been
installed at the top end of the entry at issue on July 16, 2006. He examined the entry at the end of
the midnight shift on July 17, 2006, prior to Rinehart's inspection. He traveled down the entry in
an open jeep. He indicated that he did not see any cracks or "hooving" (sic.). (Tr. 185)

3.

Discussion
a.

Violation of Section 75.202(a)

In essence, it is Respondent's position that it was not in violation of Section 75.202(a)
because of the following factors:
The height of the roof in the Seven-Right empty track has remained at the .
same height since the original mining occurred in the 1970s, indicating little
pressure on the roof.
There was no visible evidence that the bolts in the cited areas were faulty or
otherwise unsatisfactory.

31 FMSHRC 177

The 7 Right empty track was maintained by track bolting, posts, and cribs.
There were steel straps, and possibly also wooden straps, installed between the
original bolts that aided in the support of the bolts and the roof
Additional roofbolts have been installed throughout the length of the entry of
the 7 Right empty track. Eastern has consistently installed supplemental
support. since the original mining as recently as the day before the subject
inspection when fifteen roof bolts were installed.
Mine personnel have not observed any evidence of stress in the roof or pillars,
such as floor heave, changes in the roof height, or cracks.
To the extent there has been any change in the distance between the last row
of roof bolts to the rib, that change has been minimal.
Even fuspector Rinehart agreed that some areas he cited had sufficient
support:
At the No. 239 Car Marker, fuspector Rinehart noted two posts and at
least four roof bolts that were in contact with the roof.
At the No. 215 Car Marker, fuspector Rinehart testified that all bolts
were in contact with, and supporting, the roof.
Respondent's Brief, at 38-39 (citations omitted).
30 C.F.R. § 75.202(a) states in pertinent part that "[t]he roof, face and ribs of areas where
persons work or travelshall be supported or otherwise controlled to protect persons from hazards
related to falls of the roof, face or ribs and coal or rock bursts." This standard is broadly worded,
and, as such, the Commission has held that:
[T]he adequacy of particular roof support or other control must be measured against
the test of whether the support or control is what a reasonably prudent person,
familiar with the mining industry and protective purpose ofthe standard, would have
provided in order to meet the protection intended by the standard. We emphasize
that the reasonably prudent person test contemplates an objective - not subjective analysis of all the surrounding circumstances, factors, and considerations bearing on
the inquiry in issue.

Canon Coal Co., 9 FMSHRC 667, 668 (Apr. 1987).
More recently, the Commission has held that:

31 FMSHRC 178

The Secretary's roof control standard is broadly worded. See 30 C.F.R. § 75.202(a).
Accordingly, we have held that "the adequacy of particular roof support or other
control must be measured against the test of whether the support or control is what
a reasonably prudent person, familiar with the mining industry and protective
purpose of the standard, would have provided in order to meet the protection
intended by the standard."
Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1277 (Dec. 1998) (following Canon Coal, 6
FMSHRC at 668).
For the reasons that follow, I find that a preponderance of the evidence establishes that
Eastern violated Section 75.202(a).
The area of inadequately supported roof at the No. 239 car marker was located at an
intersection which, according to the uncontradicted testimony of Rinehart, is typically a "weak
point for roof support" (Tr. 52), because the intersection lacks continuous rib support. 5
According to Rinehart, in the more than sixteen foot long cited area that was between
eight and ten feet wide, the roof had potted out between bolts, creating gaps between the original
and the existing roof height. (Government Exhibit 4-A) As a result, some bolts were loose and
their bearing plates were not up against the roof, and as such they were not providing support.
Additional potting out was observed at the No. 215 car marker. 6
In addition, fifteen square feet of unsupported roof existed at both the walk and wire sides
of the track at the Nos. 108-110 car marker. As a result, according to Rinehart, the width of the
entry was increased, making it more susceptible to roof failure. 7 Significantly, Rinehart observed
some material on the floor. He described the material as not like a total roof fall but as "softball,
basketball size." (Tr. 39) His testimony in these regards was not impeached or contradicted. I
5

Respondent argues in its brief that the roof at the No. 239 car marker was sufficiently
supported by ''two posts and at least four roof bolts that were in contact with the roof."
However, this argument, while factually correct, does not acknowledge that this area is located at
an intersection and subject to the problems discussed above.
6

Additionally, another area of unbolted roof, seven feet by seven feet, located between the Nos.
13 and 14 car markers, was described by Rinehart in the order at issue as "deteriorated" and
"potted out." (Government Exhibit 1) This statement in the order, admitted into evidence, was
not impeached or contradicted, and therefore I accept it.
7

Respondent argues in its brief that the height of the roof is the same as it was in the 1970s.
This argument is based on Kurry's testimony on direct examination. However, Kurry has only
been employed at the mine for five and a half years and, as such, has no personal knowledge of
the height of the mine roof prior to his tenure.
·
31 FMSHRC 179

thus accept it.
Additionally, there were three areas, fifteen square feet each, 8 where unsupported roof
exceeded the maximum allowable distance between the last row of bolts and the rib. According
to Rinehart, the increase in width of the cited entries due to sloughage compromises the integrity
of the roof support system. Respondent argues that, as testified to by Kurry, this increase in the
width of the entries was only one foot, and the roof would not be likely to fall because of this
increase. However, on cross-examination, Kurry agreed that the bolt support system is designed
to create a compression beam from rib to rib, and that the original design regarding roof support
was being exceeded. 9
Within the above framework, I conclude that a preponderance of the evidence establishes
that there was inadequate roof support in the cited areas of the entry. This lack of roof support
presented the discrete safety hazard of a potential roof fall.
I further conclude that this hazard existed on both the wire and the walkway side of the
track, subjecting miners to potential exposure. Examiners traverse the 7,000 foot entry daily.
Also, repairmen and wire maintenance persons are required to access the track and wire side of
the entry respectively. to Further, pumpers are required to traverse the entry to repair and inspect
three pumps that were located in the entry. t 1
·
8

The 5-left rectifier, the Nos. 107-108 car marker, and the No. 105 car marker.

Respondent also argues in its brief that there was no visual evidence that any of the roof bolts
in the cited areas were faulty, citing page 119 of the transcript. This page contains the testimony
of Kevin Luketic, one ofEastem's roofbolters, who was with Rinehart during the latter's
inspection. Luketic' s testimony relating to the condition of roof bolts is as follows: ''Your bolts
maybe-you know, because you have no visual evidence there that, you know, that I could say
that they're bad, you know, but there's that chance." (Tr. 119) I find that it is not clear whether
hi$ testimony refers to what he actually observed during the inspection, or whether his testimony
is based generally on his experience as a bolter. Also, it is significant to note that he agreed that
there was an unsupported area at the cited left rectifier.
9

fu addition, Respondent advances the argument that the roof had sufficient support at the
No. 215 car marker. However, the area at the No. 215 car marker was subject to a separate and
distinct problem of being potted out.
10

Rinehart also pointed out that "[ e]xaminers, possibly building the track, track men, motor
men," may be on the track itself. (Tr. 67)
11

One pump was located in a cross-cut on the wire side at the No. 70 car marker. The record
does not indicate the exact location of the other two pumps. fu Supplemental Stipulations, filed
after the hearing, the parties indicated that it could not be conclusively determined whether these
pumps were on the wire or walkway side of the entry.
31 FMSHRC 180

Based on all the above, I further conclude that a reasonably prudent person familiar with
the mining industry and the protective purpose of Section 75.202(a) would have provided
additional roof support the areas cited. See Canon Coal Co., 9 FMSHRC 667 (Apr. 1987).
Failure to do so has resulted in a violation of Section 75.202(a).

in

b.

Significant and Substantial

A "significant and substantial" violation is described in Section 104(d)(l) of the Mine
Act as a violation "of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation is
properly designated significant and substantial "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 Division, National Gypsum Co.,
3 FMSHRC 822, 825 (Apr. 1981).

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) ("Mathies"), the Commission
explained its interpretation of the term "significant and substantial" as follows:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: (1) the underlying violation ofa mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to safety--contributed to by the violation;
(3) a reasonable likelihood that the hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in question will be of a reasonably serious
nature.
In United States Steel Mining Co., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission
stated further as follows:
We have explained further 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." U S. Steel Mining Co.,
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 Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining
Company, Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
(emphasis added)
As set forth above, the record establishes a violation of a mandatory standard, i.e., Section
75.202 (a), and that this violation contributed, to some degree, to a discrete safety hazard of a

31FMSHRC181

roof fall. Thus, the record has established the first two factors set forth in Mathies. Regarding
the third element, the Secretary has the burden of establishing that the hazard contributed to
herein, a roof fall, was reasonably likely to have occurred and to have resulted in an injury of a ·.
reasonably serious nature.

In support of its position, Respondent asserts that Rinehart did not provide any opinion
regarding the likelihood of an event such as a roof or rib fall that would have reasonably resulted
in an injury. Respondent maintains that additional timbers, bolts, straps, and cribs were installed
subsequent to the initial bolting of the entry. Further, although the entry had been developed
approximately twenty years ago, the record does not contain any evidence of any roof falls.
Lastly, when the entry was inspected, there was not any evidence of conditions which would
indicate some instability in the roof or ribs, such as cracks in these areas or heaving of the floor.
Also, according to Kurry, any deterioration in the roof resulting in material falling from
the roof would not propagate and cause a fall outside the area of deterioration. In this
connection, he cited the absence of roof problems in areas adjacent to portions of roof that had
potted out.
However, the fact that the roof had potted out in three areas and sloughage increased the
width of the entry for a total. of approximately ninety feet in the cited areas lends credence to
Rinehart's opinion that potting is caused by a weathering or deterioration process, that the roof
wjll continue to deteriorate, and eventually the roof support bolts in the area will no longer be in
cQntact with the roof. I note that, in the main, this specific testimony was not contradicted by
Eastem's witnesses.
Moreover, as explained more fully above ((I)(B)(3)(a), infra), in the intersection at the
No. 239 car marker, some bolts were loose, and their bearing plates were no longer in contact
with the roof and were not providing support.

In addition, as set forth above, there was unsupported roof at both sides of the track at the
108-110 car marker. The width of the entry was thus increased, resulting in the area becoming
more susceptible to roof failure. Further, according to the uncontradicted testimony ofRinehart,
material that had fallen from the roof was observed.
Also, for the reasons set forth above, l find that the increase in the width of the entries
due to sloughage at three different areas compromises the integrity of the roof support system. In
this connection, I note that Rinehart explained that sloughage is a continuous process eventually
leading to potting out of bolts. It thus can be concluded, given continued mining operations in
the entry, that sloughage will continue to increase the width of the entry, further reducing roof
support.
Finally, I note, as elaborated above, that miners regularly travel the entry at issue.

31 FMSHRC 182

Within the context of all the above, in combination, I conclude that,·given continued
mining operations, accompanied by the passage of time, it was more likely than not that there
was a reasonable likelihood that the cited violative conditions contributing to the hazard of a roof
fall will result in an injury-producing event, i.e., material falling from the roof. Further,
considering the exposure of miners in the entry, the size of materials that had already fallen, and
the height of the roof, i.e., approximately six feet, I find that there was a reasonable likelihood of
a reasonably serious injury occurring. I thus find that the Secretary has established the third and
fourth elements set forth in Mathies. Accordingly, I find that the Secretary established by a
preponderance of the evidence that the violation was significant and substantial.
c.

Unwarrantable Failure

The Secretary also alleges the violation was the result of the Respondent's "unwarrantable
failure" to comply with the cited standard.
fu Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987), the Commission

determined that unwarrantable failure is aggravated conduct constituting more than ordinary
negligence. Unwarrantable failure is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference" or a "serious lack of reasonable care." Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure
test).
The Commission has recognized that a number of factors are relevant in determining
whether a violation is the result of an operator's unwarrantable failure. Consolidation Coal Co.,
23 FMSHRC 588, 593 (June 2001). These include the extent of the violative condition, the
length of time that it has existed, the operator's efforts at abating the violative condition, whether
the operator has been placed on notice that greater efforts are necessary for compliance, the
operator's knowledge of the existence of the violation, whether the violation is obvious, and
whether the violation poses a high degree of danger. Id. See also San Juan Coal Co., 29
FMSHRC 125, 128 (Mar. 2007).
L.

Extent of the cited conditions

The Secretary argues that the violative conditions were extensive because seven separate
areas of unsupported roof were cited, "each of which covered a substantial section of the roof'
(Secretary's Post Hearing Brief, at 30), and that sixty-six roof bolts and three jacks were needed
to abate the conditions. Three of the cited locations, the No. 215 and No. 239 car makers, and
between the No. 13 and 14 car markers, involved conditions of potting in areas of approximately
seventy feet and forty-nine feet respectively. The remaining four areas cited each contained an
area approximately fifteen feet in length where the allowable maximum width set forth in the
applicable roof control plan had been exceeded by one foot, or a total of ninety square feet in five

31FMSHRC183

separate locations. 12 I find that the total area cited was not significant compared to the total roof
area of the entry in question, which extended approximately seven thousand feet and was sixteen
foet in width, i.e., 112,000 square feet of roof. Thus, I find that the violative conditions were not
extensive compared to the total area of the roof in the entry in question.
11.

The length of time the violation existed

Respondent argues that the cited conditions had not existed for a significant period of
time prior to Rinehart's inspection. As support for its position, Respondent cites the pre-shift
mine examiners' report of an examination of the entry in question by James Poe on the midnight
shift, July 17, which does not note any hazardous condition in any of the areas cited by Rinehart.
However, it is significant to note that Poe, who testified on behalf of Eastern, was not asked to
describe bis specific observations of the cited areas during that, or prior examinations. On the
other hand, Rinehart opined that the cited conditions existed for a week and provided his reason
as follows: "[s]even areas just don't fall within the shift or don't get wide within the shift." (Tr.
n.) I note that Kuny, who was with the inspector, did not proffer any contrary opinion regarding
the length of time the cited conditions had been in existence..
Therefore, based on the above, and considering the increase in width in the entry due to
sloughage at six different locations including the wire and walk sides at the No. 215 car marker,
as well as two separate areas where the roof had potted out; I conclude that the cited conditions
had existed for more than a few days.
111.

Whether the conditions cited were obvious or posed a high
degree of danger

Respondent asserts, in essence, that its personnel had a good faith believe that the area
was well-supported and safe. It argues that accordingly the existence of the violative conditions
was not obvious. It further asserts that there was not a high degree of danger inasmuch as, inter
alta, the twenty year old roof in the entry has not evidenced any roof falls or signs of instability.
I have considered Respondent's arguments. However, forthe reasons, set forth above ((I)
(B)(3)(b) infra), I find that the violation presented a high degree of danger to miners. Further,
according to Rinehart, the conditions were obvious and could be seen when walking up the entry.
It is significant that Kuny, who was with Rinehart, did not contradict this testimony. Therefore,
based on the above, I find that the cited conditions were obvious.
iv.

Whether the operator was placed on notice that greater
efforts were necessary for compliance. and whether the
operator had knowledge of the existence of the violation

12

The fourth location cited, the No. I 08-110 car marker, cited two unsupported areas, one
on each side of the entry.
31 FMSHRC 184

The Secretary cites Eastern's having performed supplemental bolting in the entry in
question on July 16, 2008, shortly before the inspection, as evidence that it was aware of the need
to maintain the roof in the entry. I note, however, that this supplemental bolting was performed
approximately 1,000 feet away from the nearest area cited by Rinehart.
As additional support for its position that Eastern was on notice that further efforts were
required for compliance, the Secretary cites the testimony of Kurry, Eastem's safety supervisor,
that the entry which was approximately twenty years old and had undergone weathering.
However, according to Kurry, the weathering was "normal" (Tr. 150), and did not involve roof
falls that had pulled out any bolts.
Significantly, the record does not contain any evidence that Eastern had actual knowledge
of the violative conditions. Further, the record does not indicate that there was any history of
previous roof falls in the cited entry. Nor was any evidence adduced that, previous to issuance of
the instant order, any MSHA officials had communicated to Eastern the need for any additional
efforts at compliance with Section 75.202(a). (c.f. Enlow Fork Mining Co., 19 FMSHRC 5,
11-12 (Jan. 1997)).
I find that the record has failed to establish that Eastern had knowledge of the violative ·
conditions or had been put on notice of the need for greater efforts to achieve compliance with
Section 75.202(a).
v.

The operator's abatement efforts

The Secretary does not assert there was any deficiency in Eastern's efforts in abating the
violative conditions. The record does not contain any evidence as to any deadline that Rinehart
had set for completion by Eastern of its efforts to abate the order. Subsequent to the issuance of
the order in question, Eastern installed sixty-six additional roof bolts and three jacks in the cited
areas. As a result, the order was terminated five days after its issuance. Significantly, the record
does not contain any evidence that any MSHA personnel or agents had, prior to termination,
expressed to Eastern any dissatisfaction relating to its abatement efforts, or the time being taken
to achieve compliance. Considering all of the above, I find that it has not been established that
there was any deficiency relating to Eastem's efforts in abating the violativeconditions.
vi.

Further discussion

In the context of all of the above, I find that the violative conditions were obvious and
posed a high degree of damage. However, the violative area of roof cited was not extensive in
comparison with the total area of the roof in the entry. Moreover, it has not been established that
Eastern had knowledge of the conditions, or was aware that greater efforts were needed for
compliance. Further, although the conditions existed for more than a few days, there is
insufficient evidence regarding their existence beyond that limited time period. Thus, I find that
Eastem's negligence was mitigated and did not reach the level of aggravated conduct.

31FMSHRC185

Accordingly, I find that it has not been established that the violation was the result of
Eastem's unwarrantable failure.
C.

Penalty

I find, for the reasons set forth above ((l)(B)(3)(b), infra), that the gravity of the violation
was relatively high. I find that the history of violations does not warrant either an increase or
decrease in the penalty to be assessed. However, for the reasons set forth above (I(B)(3)(c)
tefra), I find that Eastern exhibited no more than a moderate level of negligence which was
below the level of aggravated conduct. Considering all of the above, and the parties' stipulations
regarding the remainder of the factors set forth in Section 11 O(i) of the Act, I find that a penalty
of $3,000 is appropriate.

IL

Order No. 660304613

On October 4, 2006, MSHA inspector David Severini inspected the 9 Left section of the
Federal No. 2 Mine, owned and operated by Eastern. In general, the latter was involved in
mining bleeders which had to be completed prior to the start of a longwall section. Severini
examined the 9 Left coal conveyor belt which conveyed coal outby, and was approximately 6,000
feet in length. He noted accumulations of loose coal and float coal dust that had not been
recorded in the pre-shift examination report for the examination conducted earlier that day. He
is1med an order under Section 104(d)(l) of the Act, alleging a violation of 30 C.F.R. §
7S.360(a)(l), which provides, as pertinent, that "a certified person designated by the operator
must make a pre-shift examination within 3 hours preceding the beginning of any 8-hour interval
during which any person is scheduled to work or travel underground."
A.

The Secretary's Evidence

According to Severini, the accumulation of loose coal began under the tail piece and
extended under the belt approximately two hundred feet to the outby end of the No. 59 block. He
indicated that the accumulations were approximately five to six feet wide, and varied between
two to twenty inches in depth.. According to Severini, the tail roller was turning in an
accumulation of loose coal four to eight inches deep, and five inches wide, and was grinding the
loose coal into dust that was black in color and was suspended in the air. Also, the first two
bottom rollers outby the tail roller were turning in coal from six to sixteen inches deep, and six
feet wide. The bottom belt was also running in the coal accumulations. The dust coated the roof,
13

Five minutes prior to the issuance of Order No. 6603046, Severini had issued a Section
104(d)(l) Citation No. 660304, alleging a violation of 30 C.F.R. § 400 for coal and dust
accumulations. These conditions were the predicate for Order No. 6603046. Respondent is
challenging the existence of the conditions cited in Citation No. 660304. However, the validity
of the issuance of this citation, and any penalty to be assessed for the violation, are not before me
in the case at bar, as it is the subject of a separate penalty proceeding (Docket No. WEVA 2008944).
31 FMSHRC 186

ribs, floor, belt structure, and pipeline, for a distance of approximately one hundred feet outby the
tail roller.
B.

The Respondent's Evidence

Daniel Kevin Conaway, Eastem's safety supervisor, was with Severini on October 4
when the latter made his inspection of the area in question. He essentially corroborated
Severini' s testimony regarding the accumulations observed by the latter. However, Conaway
indicated that he found it difficult to believe that the material that he observed had been there for
three shifts. He explained his opinions as follows:
A.

The reason that you don't want coal around belt rollers is because it
will create friction on the belt or on the rollers, and that will generate
heat, which, in turn, can start a fire.
We did not find any hot rollers. We did not find any hot stands, and
the belt was not running out of alignment, so my issue was what's
the heat source?

Q.

So you didn't see-when the rollers were checked, they were not hot
or warm?

A.

Not the ones we checked, no, sir.

Q.

What would that indicate to you about how long that material had
been there?

A.

It would lead me to believe that it hadn't been there that long.

Tr. 285.
Conaway indicated that the belt had been raised approximately one hundred feet outby
the tail to allow traffic to travel under the belt in setting up the long wall. He indicated that the
raising of the belt is not a normal configuration and it "[put] friction on the belt. Thus material
is more prone to accumulate at the tail." (Tr. 281)

On October 4, 2006, between 4:30 a.m. and 5:10 a.m., Theodore Echols examined the 9
Left belt. His pre-shift examination report noted various conditions under the heading
violations and other hazardous conditions observed and reported, including "spillage" which
was described as being "[b]etween stands 26 to tail." (Government Exhibit 15) Echols
indicated that when he was at the tailpiece on October 4, the belt was running and "[t]hey were
loading on it." (Tr. 371) Echols testified that he observed spillage on the belt line, but none
around the tail. He indicated that the tail roller was not running in coal. He did not identify any

31 FMSHRC 187

coal dust in the air, nor did he observe any coal dust on the roof or rib. Specifically, he
indicated that he did not see any accumulations that were sixteen to twenty-one inches deep
"[a]t or around the tail area, either the tail roller or the two rollers that are near there." (Tr. 375)
John Kucish, Eastern' s mine manager, indicated that on October 4, during the midnight
shift, which usually runs from approximately 1:00 a.m. to 8:30 or 9:00 a.m., 407 tons of coal
were produced. Kucish indicated that on October 4, 2006, during the entire day shift which
typically runs from 9 a.m. to 4 p.m;, 120 tons of coal were produced. Four hundred and
nineteen tons were mined during the afternoon shift on October 4.
C.

Discussion

Essentially it is the Secretary's position that the dust and coal accumulation at the tail of
the belt had not been reported in the pre-shift examination report on October 4, 2006, and as
such Eastern was in violation of Section 75.360(a)(l). The record clearly supports the testimony
of Severini regarding the extent of the coal and dust accumulations, observed by him at 11 :55
a.m. on October 4. Also, I find that there was not any notation of these accumulations in the
pre-shift examiner's report for the day shift, October 4. The critical issue for resolution is
whether the Secretary has established that the accumulations observed by Severini were in
e:x;istence at the time that Echols made his examination and subsequent report between 4:30 and
5:00 a.m. on October 4. In this connection, the Secretary relies on the dimensions of the
accumulations of coal, and the fact that the belt and rollers were running in the accumulations.
Also, the Secretary cites testimony that the float coal dust, which was black, coated all surfaces
of the belt entry ranging in depth from a "film" to a ••measurable thick[ness]." (Tr. 212) In this
connection, Severini and MSHA inspector Melbourne Robinson, who was with Severini during
the inspection, opined that it took several shifts for the accumulations to occur. Severini
provided the following as the basis for his conclusion: ''Just experience and, again, the amount
of float coal dust that accumulated on the ribs and the mine roof at that time, it would take - it
would take a few shifts to get that dark, that black and in some places on that structure that
thick." (Tr. 228) Robinson's testimony on this point is as follows:
Q.

Now, there was some issue raised about the condition of the coal,
whether it was wet or dry, what kind ofmoisture content it had. Can
you tell me based on your observation of the coal that the rollers
were turning in, what was it?

A.

I believe it was dry, dry coal.

Q.

And with regard to the float coal dust accumulation, where was the
float coal dust?

A.

It pretty much covered everything, like, the belt structure, roof, floor,
ribs, pipeline.

31 FMSHRC 188

Q.

And was there anything significant about this.accumulation? How
did it look?

·A.

It was a serious accumulation problem.

Q.

Okay. How would you compare the scene, this accumulation that
you saw with Mr. Severini on your experience in the industry?

A.

I would have to rate -- it was probably one of the worst conditions
I've seen on a belt with nobody working on it. You always have
spills along the belt line, but you usually have people in attendance.

Q.

Andwhen you came upon this, was anybody working on it?

A.

No.

Q.

All right. Now, also based on your experience in the industry, how
long did it take this accumulation of float coal dust, the coal
accumulation to occur?

·A.

The float dust seemed extensive enough in my opinion it would have
been three shifts to accumulate that bad.

Tr. 316-18.
I find that the weight to be accorded to the inspectors' opinion on this critical issue is to
be diminished inasmuch as, aside from a reference to their experience, they did not explain how
the existence of the conditions that they observed led to their opinion as to the length of time the
accumulations had existed.
Further, according to Severini, in essence, the extent of dust accumulations resulted from
the effect of the tail rollers grinding accumulations of coal which, as observed by him, produced .
fine dust that was thrown up into the air and carried throughout the entry. Robinson opined that,
based on his experience, due to the extensive condition of dust in the entry, it took three shifts to
accumulate. Thus underlying the inspectors' testimony is an assumption that the rollers had
been grinding coal dust during and before the pre-shift examination. In this connection, I note
that according to Conaway, when rollers have been turning in and grinding coal accumulations,
heat would have been generated as a result of the friction that was produced by this action.
Thus, the absence of any evidence of hot rollers or stands tends to significantly diminish any
inference that the rollers had been grinding coal and producing dust since before Echols'
examination seven hours earlier. Further, since the record establishes that 120 tons of coal were
produced on the entire day shift, it is incumbent upon the Secretary to prove that the observed
accumulations did not result from coal being run on the belt after Echol's examination, and prior

31 FMSHRC 189

1Q Severini's inspection. I note that when Severini arrived "on the section," although the belt
was in operation, it was not running coal. Although the parties stipulated that the inspection
party arrived "on the section" at 9:00 a.m., the record is not clear when Severini first observed
that coal was not being transported on the belt, i.e., when he first entered the belt entry and had
the ability to make this observation.
Subsequent to the hearing, the parties stipulated as follows: "On October 4, 2006, the
inspection party arrived on the section at approximately 9:00 a.m. The party proceeded up the 9
Left Track Entry and went to the longwall setup face before entering the 9 Left Coal Conveyor
Belt Entry." (Supplemental Stipulations, B(l)) (emphasis added). However, there is not any
evidence in the record as to when Severini and the inspection party actually arrived at the entry.
Hence, since the record fails to establish when Severini arrived on the belt entry, there is not any
basis to predicate a finding, based upon his observations, as to the length of time the coal had
not been run on the belt prior to 11 :55 a.m. Moreover, due to the operation of the withdrawal
order at issue, the belt was not in operation, and coal could not have been run on the belt .
between the issuance of the order at approximately 11 :55 a.m. and its termination later that day
at "1500." (Government Exhibit 10, p. 3). There is not any direct evidence in the record as to
whether coal was produced and transported on the belt (1) between Echols' examination and
Severini's inspection and/or (2) between the termination of the withdrawal order and the end of
the day shift. There is not any basis in the record to allow a specific allocation of the tot~
production of 120 tons for the shift to either of these periods. Therefore, I find that the ·
Secretary has failed to establish that coal, in quantities sufficient to produce the accumulations
observed by Severini, was not transported on the belt after Echols' examination.
Therefore, considering all the above, I find that the Secretary has not established by a
preponderance of the evidence that the accumulations observed by Severini at approximately
11 :55 a.m. had been in existence at the time of the pre-shift examination by Echols. I thus find
that the Secretary has not met her burden of establishing a violation of a failure to perform a preshift examination as required by Section 75.360(a). Accordingly, I find that Eastern did not
violate Section 75.360(a)(l).

IIJ.

Citation Nos. 6602109, 6601079, 6601841, 6601849, 6602565, 6602567, 6602568 and
6602569

At the hearing, the Secretary filed a motion for decision and order approving partial·
settlement relating to these citations. In the motion, it is represented that the parties reached a
settlement regarding these citations and seek a reduction in penalties from $11,045 to $6,200. I
have reviewed the representations set forth in the settlement agreement, and conclude that its
terms are appropriate and are consistent with the terms of the Act. Accordingly, the motion is
granted.

31 FMSHRC 190

ORDER
It is Ordered that Order No. 6603046 be dismissed. It is further Ordered that the
Respondent pay a total civil penalty of$9,200 within 30 days of this decision.

liO ~ -

~.Weisberger

Admin'istrative Law Judge

Distribution:
John M. Strawn, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center,
Suite 630E, 170 S. Independence Mall West, Philadelphia, PA, 19106-3306
R. Henry Moore, Esq., JacksonKellyPLLC, Three Gateway Ctr., Suite 1340, 401 Liberty Ave.,
Pittsburgh, PA 15222

/eb

31FMSHRC191

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

January 28, 2009
COAL RIVER MINING, LLC,
Contestant
v.

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

CONTEST PROCEEDINGS
Docket No. WEVA 2006-125-R
Citation No. 7249165; 01/30/2006
Docket No. WEVA 2006-126-R
Order No. 7249166; 01/30/2006
Docket No. WEVA 2006-127-R
Order No. 7249167; 01/30/2006
Docket No. WEVA 2006-128-R
Order No. 7249168; 01/30/2006
Tiny Creek No. 2
Mine ID: 46-08835

S~CRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CNIL PENALTY PROCEEDING
Docket No. WEVA 2007-196
A.C. No. 46-08835-103740

v.
COAL RIVER MINING, LLC,
Respondent·

Tiny Creek No. 2 Mine

DECISION
Appearances: Ronald Gurka, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington,
Virginia, on behalf of the Secretary
F. Thomas Rubenstein, Esq., Dinsmore & Shohl, LLP, Morgantown, West
Virginia, on behalf of Coal River Mining, LLC
Before:

Judge Barbour

31FMSHRC192

These consolidated cases are before me pursuant to four notices of contest filed by Coal
River Mining, LLC (Coal River) and one petition for assessment of civil penalty filed by the
Secretary of Labor against Coal River. The proceedings arise under section 105(d) of the Federal
Mine Safety and Health Act of 1977 (the Mine Act or Act). 30 U.S.C. § 815(d). In the contest
proceedings, Coal River challenges the validity of one citation and three orders issued at its Tiny
Creek No. 2 Mine, a bituminous underground coal mine located in Lincoln County, West
Virginia. In the civil penalty proceeding, the Secretary proposed civil penalties totaling $34,400
for the violations alleged in the citation and orders. The cases were tried in Charleston, West
Virginia.

THE CITATION. THE ORDERS AND THE PENALTY PETITION
Section 104(d)(1)(30 U.S.C. §814(d)(l)) Citation No. 7249165 (Docket No. WEVA
2006-125-R) asserts the company violated 30 C.F.R. § 75.340{a), a mandatory safety standard
requiring in pertinent part ''underground ... battery charging stations ... [to] be housed in
noncombustible structures or areas or be equipped with a fire suppression system." Section
104(d)(l) Order No. 7249166 (Docket No. WEVA 2006-126-R) asserts the company violated 30
C.F.R. § 75.360(b)(9), a mandatory safety standard requiring the preshift examiner to "examine
for hazardous conditions ... at ... [u]nderground electrical installations." Section 104(d)(l)
Order No. 7249167 (WEVA 2006-127-R) asserts the company violated 30 C.F.R. § 75.5.12, a
mandatory safety standard requiring all electric equipment to be "frequently examined, tested and
properly maintained ... to assure safe operating conditions." Seetion 104(d)(l) Order No.
7249168 (WEVA 2006-128-R) asserts the company violated 30 C.F.R. § 75.503, a mandatory
safety standard requiring an operator to keep electric face equipment in "permissible condition."
The citation and orders contain findings the alleged violations were significant and
substantial contributions to mine safety hazards (S&S) and were the result of the company's high
negligence and unwarrantable failure to comply with the standards. The company contests all of
the allegations.
· The Secretary seeks penalties of $10,300 each for the violations alleged in Citation
7249165 and Orders No. 7249166 and 7249167 and a civil penalty of $3,500 for the violation
alleged in Order No. 7249168 (Docket No. WEVA 2007-196). 1 In the civil penalty proceeding,
as in the contest proceedings, the company denies it violated the cited standards. It also
challenges the inspector's gravity and negligence findings.
1

Counsel for the Secretary explained the lower proposed penalty was the result of an
error. When the inspector issued the order, he indicated one person was endangered by the
alleged violation. According to counsel, he should have indicated eight persons were affected.
Counsel's explanation was supported by the inspector's testimony, and the Secretary's motion to
modify the order to indicate eight persons were affected was granted. Tr. 282, 414. According to
counsel, if the alleged violation had been assessed as endangering eight miners the proposed
penalty would have been $10,300, not $3,500. Tr. 24-25.
31 FMSHRC 193

STIPULATIONS
The parties stipulated as follows:
1. Coal River ... is an operator as defined in Section 3(d)
of the ... [Act].
2. Operations of Coal River ... at [the mine] are ... subject
to the jurisdiction of the ... Act.
3. [T]his proceeding is subject to the jurisdiction of the
Federal Mine Safety and Health Review Commission
and its designated administrative law [judge] pursuant
to Sections 105 and 113 of the ... Act.
4. [T]he products of the ... mine ... affected interstate
commerce within the meaning and scope of Section 4
of the.~. Act.

5. True copies of each citation and order ... at issue ...
in this proceeding were served on ... [Coal River]
or its agent as required by the ... Act.
6. The total proposed penalty for the citation and orders
at issue in this proceeding will not affect ... [Coal
River's] ability to continue in business.
7. [F]or the purpose of assessing a penalty in this case,
... [Coal River] has a low history of previous violations.
Tr. 38-40. After these stipulations were read into the record, counsels agreed on one additional
fact-that from January 1, 2005, to January 27, 2007, no citation or order was issued· at the mine
alleging a violation of section 75.340{a). Tr. 41-42.

THE BACKGROUND OF THE CITATION AND ORDERS
The subject enforcement actions arose out of MSHA's investigation of an incident that
occurred at the mine on January 27, 2006, when batteries allegedly overheated during the evening
shift. The batteries had been taken off a scoop, placed on the ground, and connected to a battery·
charger at a battery charging station. 2 The batteries were located just outby the battery charger,

2

MSHA inspector, Bobby Moreland, described the scoop as "a rubber-tired :machine that
... has a bucket on one end, [and] batteries on the other [end]." Tr. 138. The scoop in question

31 FMSHRC 194

and the charging station was located at Sp ad No. 1965. Tr. 597. Air ventilating the charging
station did not travel to the face, but was routed outby. Id., Tr. 602. The charging and/or
overheating of the batteries apparently caused them to release hydrogen gas, which in turn
triggered the mine's carbon monoxide (CO) sensors. This resulted in an alarm sounding, which
in tum resulted in all underground miners being evacuated and rescue teams being called. 3 There
were no InJUnes.
Bobby Moreland has been an MSHA inspector since approximately 1991. Tr. 47-48. On
January 27, Moreland was acting as an accident investigator and an electrical specialist for the
agency. In addition to his MSHA duties, Moreland is a certified electrician. He also holds mine
foreman's papers. Tr. 47. Since becoming an electrical specialist for MSHA, his primary area of
responsibility has been accident investigations. Moreland estipi.ated he has investigated 30 to 40
accidents for the agency, three of which involved electrical incidents. Tr. 49.
Moreland had inspected the Tiny Creek No. 2 Mine in the past; but at the time of the
incident it had been "several years" since he had been underground there. Tr. 50; see also Tr. 92.
On January 27, Moreland was at home when he received a telephone call from his supervisor,
Terry Price. Price told Moreland there had been an incident at the mine. 4 Price instructed
Moreland to go to the mine. Tr. 52. Price also decided to go to the mine.
Moreland and Price were not the only ones who received calls that evening. B.K. Smith,
the mine superintendent, was at home when he, too, was called. Smith was advised the mine's
CO monitoring system was reporting "real high" CO levels underground. Smith, who was well
aware of recent mine explosions and fires involving other mines and operators, was "scared to
death." Tr. 773; see also Tr. 772. He ordered all miners evacuated, and then he immediately left
for the mine. 5 Tr. 771-772.
When Moreland arrived at the mine, he discovered no one knew exactly what had
happened. Some miners still were underground. Tr. 59, 94-95. Both Price and Smith arrived

was used ''to carry supplies or to do cleaning." Id.
3

LarryBlackbum, Coal River's production manager, estimated a total of 30 miners were
evacuated. Tr. 629.
4Terry Price learned something had happened when, at about 8:30 p.m., Terry Chapman,
the mine's safety director, called Price and reported the event. Tr. 56; see Gov't Exh. 8.
5

0n January 27, in addition to Smith, who had been the superintendent since August 1995
(Tr. 170), the mine management team included the manager of operations, Larry Blackbum; and
the third shift mine foreman, Mark Blackbum. The team generally received good marks from
MSHA enforcement personnel. For example, Moreland believed they did a "good job"
managing the mine. Tr. 93.

31FMSHRC195

shortly after Moreland. Tr. 773. Moreland first spoke with the chief electrician, Ryan Browning.
Then, Moreland went to the CO monitor station to get a printout of the underground CO levels. 6
Tr. 60. A printout was not available, but Moreland could tell from the system that its alann had
sounded. Moreland thought the alann could have been triggered by gases produced by a fire or
released from a battery or batteries. 7 Tr. 61.
Smith also checked the monitor station. He was very concerned about a possible
underground fire. Tr. 814. However, as he continued to check, he could see the gas levels
beginning to diminish. Tr. 773-774. The gas was moving outby and out of the mine, and new gas
was not being produced. 8 Tr. 780. In the meantime, MSHA took control of the situation by
issuing a section 103(k) order (30 U.S.C. § 813(k)) to Coal River. 9 Tr. 776-777.
Moreland stayed at the mine until after midnight. After he confirmed all miners were
safely accounted for and none were left underground, Moreland prepared to go home. 10 Before
leaving, Moreland listened to the miners being "debriefed" as they came out of the mine. Tr. 63.
From what he heard, he believed the high gas levels were the result of a "possible battery fire."

Id.
In the meantime, third shift mine foreman, Mark Blackburn, had traveled underground to

6

The station was located in the main mine office.

7

Everyone agreed although the system was designed to signal a fire by detecting the
resulting CO, the system also could be triggered by the release of high levels of hydrogen given
off by batteries while they were charging or when they overheated. Tr. 61-62.
8

Moreland explained that by looking at the system, ''You could follow [the gas] ... from
one sensor to another" as air traveled outbyto exit the mine. Tr. 96.
9

Section I 03(k) provides in part:
In the event of an any accident occurring in
a coal ... mine ... [an inspector], when
present, may issue such orders as he deems
appropriate to insure the safety of any person
in the coal ... mine, and the operator of such
. mine shall obtain the approval of ... [the
inspector] ... of any plan to recover any person in such mine ... or [to] return affected
areas of such mine to normal.

10

Smith was so concerned about what might have happened underground, he ordered four
head counts to make sure everyone was out. Tr. 778.
31 FMSHRC 196

find out what happened. Blackbum first determined there was no active mine fire, and he then
made his way to the battery charging station at Spad No. 1965. Blackbum was familiar with the
station because, at the direction of Smith, Blackbum had ordered the battery charger and the
batteries moved to the area. Tr. 679, 683, 717. The move was motivated by less than ideal roof
conditions in the area where the station was previously located. 11 Tr. 682, 693; See also Tr. 784.
According to Blackburn, he had the equipment moved to Spad No. 1965 "probably a couple of
days" before January 27. Id.; Tr. 708.
Blackburn explained when batteries are charged, they 4'emit gases ... because that's the
nature of ... batteries." Tr. 680. Therefore, when setting up a charging station, the charger is
located in neutral air, but gases given off by the batteries are ventilated out of the mine with the
return air.12 Tr. 685, 787.
Blackburn described in general how charging stations were established at the mine. He
stated, either before or after a battery charger was moved into an area designated as a charging
station, the ribs of the station were fireproofed by spraying them with Pyro-Chem, a fire retardant
coating. Tr. 684. The company then applied rock dust to the area. Tr. 687. Blackburn's
description of how a chaigmg station was set up was echoed by Smith. Tr. 790-791.
With regard to the charging station at Spad No. 1965, Blackbum explained that the first
thing moved to the area was the battery charger. Next came the batteries. After this, Blackbum·
instructed the crew to "run the cable [to the charger] and ... spray the area." Tr. 689. Blackbum
thought the area would be sprayed by the incoming shift. ("I moved the charger and the
batter[ies] ... I didn't spray ... because I didn't have time. The other boss was going to take his
people down there and do it. I basically got it started." Tr. 703.) Ronald Byans was the
incoming section foreman, and Blackburn believed it was Byans' job to make sure the area was
sprayed. Tr. 719-720. However, after the next shift ended, Blackbum learned there was a
problem, Contrary to his instructions, Pyro-Chem had not been applied to the ribs. Tr. 689. At
first, Blackbrirn thought the spray machine had malfunctioned, but later he learned the PyroChem, which had been stored on the surface, was frozen and was not brought into the mine soon
enough to thaw. Tr. 699-700, 707. According to Blackbum, when Smith learned the area had
not been sprayed, he said, "[O]kay we'll get someone to take care of it." Tr. 707. Smith told a
foreman about the situation. Smith expected the foreman to pass on the information and to

11

Smith confirmed the charging station was moved to Spad No. 1965 after bad roof
conditions were encountered. Tr. 784.
12

Moreland testified that the air at Spad No. 1965 was moving at least 50 feet per minute.
This velocity was slow, but it did not violate any MHSA requirements. See Tr. 353.

31 FMSHRC 197

r¢ctify the problem. Tr. 832. Howevet, the area was never sprayed. 13
Blackburn described spraying charging stations at the mine as a "common practice." Tr.
708. In the past four years, he could not recall any other instance when a charging station was
not sprayed and, thus, when a charging station was deprived of a fire suppression system. Tr.
711. (At the mine, Pyro-Chem served as a means by which the company provided charging
stations with their required fire suppression systems.)
Because everyone was accounted for and the incident did not result in any injuries,
MSHA did not begin its on-site investigation of the events of January 27 until Sunday, January
29. That Sunday Moreland returned to the mine, where he was scheduled to meet MSHA's lead
accident investigator, Fred Willis. Willis arrived between 9:00 a.m. and 9:30 a.m. He was
briefed by James Maynard, another agency investigator. Maynard was assigned to assist Willis
and Moreland. Smith also was at the mine. Tr. 782. Maynard had reviewed some of Coal
River's records, and he gave Willis copies of pre-shift, on-shift and weekly examination reports,
as well as gas readings. Tr. 227.
Willis asked Moreland to interview "certain individuals." Tr. 64. Willis gave Moreland
a list of questions suggested to Willis by the MSHA District Manager. Tr. 64; see Gov't Exh. 13.
Id.; see Tr. 98, Tr. 229; see also Gov't Exhs. 13 at 17, As a result, Moreland interviewed nine
miners. From the interviews, Moreland concluded: "[s]om~ of the people knew about [the.
battery] charger installations. Some of them didn't. ... Not everyone knew the exact
requirements of charger installations...." Tr. 69. Moreland concluded the charging station had·
been at Spad No.1965 for two or three weeks prior to January 27. Tr. 73, 120, 136-137.
However, he agreed it was possible the station had only been at Spad No. 1965 for couple of
days. Tr. 121; see also Tr. 137.
Later that day a joint MSHA-company inspection party proceeded underground. Willis
and Moreland were among those representing MSHA Larry Blackburn was one of the
company's representatives. Tr. 228. According to Willis, one of the first things the team did was
travel to Spad No. 1965 to look at the battery charging station. Tr. 231. The scoop batteries,
which were on the ground to one side of the battery charger, were in their metal case. The lid on
the case was closed. 14 Tr. 232-233; Gov't Exh, 17. As the party gathered around the case, the lid

13

Smith testified, when he learned the area had not been sprayed, it was ')ust like a smack
in the face." Tr. 801. Blackburn, could not explain why the Pyro-Chem was not applied to the
ribs. He stated, "for whatever reason it didn't get taken care of, I guess we dropped the ball.
Somebody, somewhere, somehow, didn't spray it." Tr. 706. He added, he was "sure it wasn't
intentional." Id.
14

According to Daniel Bickey, whose company, Mine Power Systems (MPS), supplied the
batteries, when batteries are charged, they should not be confined so the hydrogen which is given
off by the batteries during charging does not reach explosive concentrations. Tr. 453-454.
31FMSHRC198

was lifted. Willis testified he noticed evidence of ••extreme heat" on one the batteries. Tr. 233,
369, 372. One battery's inby end was discolored. Willis stated, "it appeared ... the [batteries']
cells had ruptured, spilling the contents out of the batteries. Tr. 233; Gov't Exh. 18. Although ·
the on-site investigation revealed there never was a fire at Spad No. 1965 (Tr. 369), Willis
believed removing power from the charger as soon as the CO monitors gave the alarm - which is
what Coal River personnel had done - allowed the charger to cool and "prevent[ ed] a major fire"
or explosion. 15 Tr. 314; see also Tr. 250.
Willis recalled that the caps over two battery cells had been removed. Willis speculated
the caps could have been "blown off'when the fluid in the battery cells overheated. Tr. 242.
Further, Willis testified some of the permanent insulation around the edges of the batteries' case
was missing. 16 Tr. 243-244; Gov't Exh. 18. In addition; insulation on the inside of the case lid
was ••gone." Tr. 243. According to Willis, the heat had melted it. Id.; Tr. 246. 17
Additionally, Willis thought seven or eight of the batteries' cells looked like they had
been damaged byheat. ("Heat had built up within those cells. The ... [cap covering] the cell
ha[d] sunk down inside the cell as if a piece of plastic had heated and went down into the cell."
Tr. 243.) Willis remembered looking into the cells. He could see "nothing except the plates in
them." Tr. 249. If water had been above the plates, the batteries would not have overheated. Tr.
250. According to Willis, eight cells had simply melted from the "extreme heat." Tr. 250.
Maynard also testified about damage that had been done to the batteries. He recalled
seeing melted rubber connections between the batteries. Tr. 173.
The MSHA inspectors' belief the batteries overheated was challenged by Coal River's
witnesses. A large majority of the plastic caps on top of the batteries' cells remained intact, and
maintenance manager, Carl Estep, asked ifthe batteries had gotten as hot as MSHA's witnesses
maintained, why had not most of the plastic caps melted? Tr. 973. Daniel Bickey' s theory was
the incident resulted from over watering the batteries' cells. He testified, when batteries are

15

Willis's view the batteries had been subjected to "extreme heat" was disputed by
Bickey. Bickey was not a member of the investigation team. However, he had spent almost all
of his working life involved in the sale and service of batteries, and he testified the danger of a
fire or explosion was minimal during charging because "[t]he temperatures don't get that high.
A high temperature in a battery is 115 degrees Fahrenheit ...." Tr. 576.. Even battery
temperatures as high as 160 or 180 degrees Fahrenheit were not dangerous in his view. Id.
16

Steven Curry, who conducted the weekly electrical examinations for the company,
disagreed. Tr. 880.
17

However, Bickey thought the lid appeared to have been treated with ScotchCast, a black
spray-on insulation. Tr. 475-477. Thus, while he agreed the black color showing on the inside
of the lid could have been evidence of heat, he did not think it was. Tr. 477.
31 FMSHRC 199

watered before they are charged, the batteries' cells overflow, battery acid spills onto the top of
the batteries, and the acid flows out of the ventilation openings {cut out parts of the batteries'
case). Tr. 4 79; see Gov't Exh. 19. Rather than evidence of heat, Bickey believed the corroded
area at the end of the subject case was produced by acid due to too much water in the cells. Tr.
479, 577. Looking at a photograph that purportedly showed damage to the batteries, Bickey
testified, "This is an over-watered battery and that's why you have that over-flow over the side."
Tr. 577. According to Bickey, over-watering is not dangerous and would not have caused
excessive hydrogen to be liberated and the CO monitors to trigger an alarm. Tr. 578.

In addition to trying to determine the cause of the incident, MSHA's investigators found
specific conditions at Spad No. 1965 violated the previously-menticmed, mandatory health and
safety standards. Willis and Maynard were sure there was no Pyro-Chem on the charging
station's walls {Tr. 29, 200-201) and Willis concluded Coal River violated section 75.340(a)
because with no Pyro-Chem on the walls there was no fire suppression system for the batteries
when they were charged off the scoop. Tr. 385-386. Maynard acknowledged, however, the area
at Spad No. 1965 was well rock dusted, that five bags ofrock dust were stored at Spad 1965, and
that the rock dust could act as fire suppression material. Tr. 200-201, 298. Therefore, in
Maynard's opinion, the ro-ck dust at Spad No. 1965 somewhat minimized the hazard from the
lack of Pyro-Chem. Tr. 201, 211 .. Still, Maynard emphasized the primary purpose of the rock
dust was to "prevent float coal dust from getting suspended in the air and blowing up," not to
prevent the ribs from catching fire. Tr. 210.
Because of the lack of Pyro-Chem, Citation 7246621 was issued to Coal River. Gov't ·
Exh. 1. Maynard believed the lack of Pyro-Chem at Spad 1965 was reasonably likely to
cQntribute to an accident. According to Maynard, "it's a hazard changing ... batteries, period
.... That's why you have to have all the fire protection there." Tr. 180. In his opinion, the
hazards inherent in charging batteries were "fires, hydrogen buildup, explosion, things of that
nature." Tr. 181.
It was clear to Moreland that company personnel, including the pre-shift examiners, had
missed the fact Pyro-Chem had not been applied to the ribs. He thought one reason was because
the ribs were covered with rock dust. Tr. 112. This view was shared by weekly electrical
examiner, Steven Curry, who stated when Pyro-Chem is first sprayed on the ribs it looks "like
wet mud," but "when they come in there and rock dust ... it dries ... so it's just like regular rock
dust." Tr. 885.

The investigators further found the condition of the scoop's battery cables and the
batteries themselves indicative of a violation of section 75.503, because the scoop was not
.maintained in permissible condition. In addition to missing insulation on the batteries' case lid,
two of the battery cables were spliced and the cables used on the batteries were not approved by
MSHA. Further, some of the batteries' cells were dry, and accumulations of combustible
materials were found on the batteries. These conditions were set out in Order No; 7249168.

31 FMSHRC 200

As far as the missing insulation was concerned and, as previously noted, Willis testified
insulation on the inside of the battery case lid was simply "gone'' (Tr. 243) due to "extreme
heat." Id., Tr. 246. Willis also testified insulation was missing around the edges of the batteries'
case. Tr. 243-244; Gov't Exh. 18. Moreland stated the conditions could have existed before the
January 27 incident or they could have resulted from the incident, "depending on how the
batteries [were] maintained." Tr. 134. Moreover, referring to a photograph of the batteries,
Willis identified failed insulation where one of the battery cables connected to the battery. Tr.
268; Gov't Exh. 23. The cable had not melted, but it appeared to have been subjected to a lot of
heat. Id.
Moreland identified a splice on a battery cable that ran across the top of one of the
batteries. Tr. 145, 169; Gov't Exh. 19, Gov't Exh. 21. Moreland testified splices in battery
cables were "not allowed" because a splice '"weakened" the cable and created ''the possibilities of
arcing [and] heating." 18 Tr. 145. Moreland believed those examining the batteries for the
company, for example, the certified electrician who conducted the weekly examination of
electrical equipment, should have known splices were not allowed. Tr. 148.
In addition to the splice about which Moreland testified, Willis identified "a very badly
damaged splice that had melted." Tr. 263; Gov't Exh. 21. The splice was open, revealing the
insulated conductors. The cable containing the splice served the second of one of the two
batteries being charged. Id.; Gov't Exh. 20. The splice was wrapped in low-voltage tape. Tr.
265, 363. Some of the tape had melted. Tr. 265. Willis believed the defective splice contributed
to the cause of the accident. See Id. However, Coal River's maintenance manager, Carl Estep,
looking at a picture of the splice (Gov't Exh. 21), pointed out that much of the splice was still in
tact and "[t]he tape on both sides of the splice ... [had] not burned.'' Tr. 953. To Estep, this
showed the splice was not a contributory factor. If the splice had gotten hot enough to spark the
incident, all of the tape used to make the splice would have melted or been distorted. Tr. 953954.
According to Willis, the splices were dangerous because hydrogen given off when the
batteries are charged is explosive when it is between 3% to 75% of the atmosphere. Tr. 331.
Battery cases vibrate when the battery-operated equipment is activated. The vibration can cause
a hole or holes to be worn in the insulation, exposing the conductors. The conductors can arc and
cause an explosion (Tr. 257) and, in Willis's opinion, a hydrogen explosion can be
"catastrophic." Tr. 256. Like Moreland, Willis maintained splices never are allowed in battery
cables. Tr. 251. Willis read from MSHA' s Program Policy Manual (PPM), which, in explaining
MSHA's enforcement policy for section 75.503, states in part: "Splices shall not be made in

18

Steve Curry, the company's weekly electrical inspector, agreed to some extent. He
testified splices offer resistance to electrical current and the resistance heats the spliced area of a
cable. Tr. 983.
31FMSHRC201

external wiring of permissible equipment." 19 Id.; Gov't Exh. 28. Because the splice was lying
on top of part of the metal frame of the battery case, the only thing between the case and the
conductors was the tape that was wrapped around the splice. Tr. 276. The tape was low-voltage
tape, the kind used for general electrical repairs. Id. In Willis's opinion, the splice was a poorly
made repair of a cable that should not have been spliced in the first place. Tr. 277.
Daniel Bickey testified the splices probably were made by one of his employees. Id.
Until the splices were cited for violating section 75.503, Bickeybelieved battery cables could be
spliced. Tr. 450. Larry Blackbum, the company's production manager; Carl Estep, its
maintenance manager; and Steven Curry, the weekly electrical inspector, held similar beliefs. Tr.
611-612, 866, 903, 935, 943. Bickey testified; from a pragmatic standpoint, splicing sometimes
was preferable to replacing a damaged cable because splicing "took less time" and, thus,
production was less disrupted. He was certain a properly prepared splice would not compromise
safety. Tr. 452.
MSHA' s inspectors found something else wrong with the cables used on the batteries.
The cables were not approved by the agency. Tr. 146; Gov't Exh. 20. An MSHA-approved
cable bears. an approval notice or stamp, and Moreland knew the cables were not approved,
because they lacked the agency's official imprimatur. Tr. 146. In. Moreland's opinion, miners
examining the batteries should have known approved cables were required. Id.
Like Moreland, Willis, too, testified there were no MSHA markings.on the cables. Tr..
257. The type of cable used on the batteries was 600-volt welding cable. Tr. 259, 260,. 356.
Willis did not believe insulation around the welding cable's conductors was designed to be
effective for the long time period a scoop battery was typically used. Tr. 260. Moreover, unlike
an MSHA-approved cable, the 600-volt welding cable was not tested for flame resistence. Willis
feared insulation usedon the non-approved cables would break down. Tr. 261. He recognized
MPS supplied the batteries and cables to Coal River, but he did not think this in any way
lessened the company's negligence for failing to use approved cables.
Bickey testified 600-volt welding cable (also referred to as "2/0 cable") was used at mines
prior to 1989. After 1989, MSHArequired.used of cable that had.a thicker"skin." Tr 430-431;
see C.R. Exh. 9. However, according to Bickey, cable used after 1989 actually withstood less
heat (210° Fahrenheit, as opposed to 240° Fahrenheit) than cable used prior to 1989. Tr. 431. ·
The older cable was ''better" because of this. Tr. 432; see also Tr. 527, 528. Nonetheless,

19

Larry Cook, an MSHA supervisory electrical engineer, explained if an operator had
reason to believe equipment would be used in the face area or in return areas, the equipment had
to be maintained in permissible condition. Among other things, this meant that battery cables
could not be spliced. Tr. 667-668. It was clear from the testimony that prior to the incident
neither company personnel nor Daniel Bickey understood this. They consistently testified that
· they were not familiar with the referenced part of the PPM and with the "no-splice" requirement.
See, e.g., Tr. 948.
31 FMSHRC 202

Bickey described 2/0 cable and MSHA-approved cable as "functionally equivalent." Tr. 435. In
Bickey's view, using non-approved cable did not jeopardize safety (Tr. 443), whereas using
approved cable created a "cost issue" for suppliers. Tr. 529. He stated, "We ... [paid] double
because MSHA was printed on it." Id.
Like Bickey, the company's maintenance manager, Carl Estep, also thought 2/0 cable and
MSHA-approved cable were functionally equivalent. He could "not see any difference in either
cable." Tr. 937. He knew of no problems at any of Coal River's three mines from using 2/0
cable. Tr. 938.
Bickey testified it was not until after the January 27 incident that MPS learned the cable it
used was not compliant. "[N]ot until this incident had we ever had any complaints about the 2/0
cable, the ... [MSHA] people have come through our shop, they've seen this [2/0]cable, [they
have] never said a word to us and to my knowledge, we have never been contacted by ...
[MSHA] ... to put this ... [MSHA-approved] cable on the batteries." Tr. 433; see also Tr. 524.
Bickey added, "We're not about looking up laws." Tr. 522.
Larry Blackburn, Coal River's operations manager, also did not know until the incident
that the cable supplied with the batteries should not have been used. Tr. 610. He had "never
heard anybody say there was [such a thing as] MSHA approved cable." Id. He just "did not
know that." Id. Rather, he "took it for granted" cables supplied by MPS were acceptable. Tr.
614. He testified the company never experienced safety or operational difficulty using the nonapproved cable. 20 Tr. 610-611.
Each of the two batteries was composed of numerous batttery cells. The cells were
distinct compartments containing lead plates. For the batteries to function properly, the cells had
to be ''watered" so each cell had enough water to reach and interact with the cell's lead plate.
(The resulting chemical reaction produced the batteries' electrical charges.) According to the
inspectors, the investigation revealed some of the batteries' cells contained either no water or
insufficient water. Moreland agreed with Willis that the water in several of the cells was low or
the cells were dry, but he could not say for sure which of the cells were dry. Tr. 149.
Maintenance manager Carl Estep looked at the batteries after they were taken out of the mine.
He could not see any water in the cells. However, he believed some must have contained water
because they "[had] to have water in [them] ... to charge." Tr. 952. Nonetheless, he
acknowledged the water in some of the cells was "low." Id.
Willis believed low water in the cells could have caused the batteries to overheat. He
also testified once the cells overheated the loss of water would have accelerated, which,. in tum

20

Like Blackburn, Steven Curry did not know cable provided by MPS was not
acceptable. Tr. 865. Nor did the company's maintenance manager or its superintendent. See Tr.
807, 935, 944.

31 FMSHRC 203

would .cause more heat. Tr. 287. Because of the danger of overheating if water was too low,
Moreland stated he "definitely [would] add water [to the cells] prior to charging [the batteries]."
Tr. 152. Willis agreed (Tr. 324-325) and stated proper maintenance of the batteries required
monitoring their water level. Tr. 284-286.
The.government's assertions regarding when to water the batteries was challenged by
Daniel Bickey. Bickey identified a sticker MPS attached to the batteries it sent to mines. The
stickers stated in part: "Water me after charging only." C.R. Exh. 10. Bickey thought adding
water prior to charging the batteries was "almost criminal." Tr. 458. He stated, "All batteries
that are on charge are going to have low water because they've been discharged. So our rule is
you water after [a] charge." Tr. 460. He explained, ''[I]fyou water before a charge ... you bring
acid and water to the surface of ... [the] battery, and that's where it's dangerous because when
acid is on the top of ... [the] battery it will go to ground and short to the steel from the connector
aJ;ld create a very hazardous situation."21 Tr. 461. According to Bickey, low water prior to
charging was not the sign of a battery maintenance problem.
Willis understood the last weekly examination of the scoop was on January 24, 3 days
before the incident. Tr. 291. At that time the examiner indicated the scoop was "OK." Gov't
Exh. 15 at 4. The lack of adequate water levels indicated to Willis that despite.the "okay" given
by the examiner, the water levels were low on the 24th and the examiner or another company
.employee had not corrected the defect. Tr. 292. Willis believed the failure to properly maintain ·
the scoop's batteries was the result of "high negligence" because of the obviousness of the
conditions.
Willis also maintained there were accumulations of combustible materials on the
batteries. On the second of the two batteries, Willis thought he saw evidence of smouldering,
fine coal and/or coal dust in the form of white ash. Tr. 266; Gov't Exh. 20, Gov't Exh. 22.
Bickey challenged Willis's belief the ash was residue from combustible material. Bickey thought
the "ash" identified by Willis could have been baking soda that ''wasn't washed off really good."
Tr. 465. Maintenance manager Carl Estep essentially agreed. Tr. 940. He added, ''We clean the
batteries with baking soda. It dilutes the acid when it builds up on top of the batteries." Id.
Finally, and as previously noted, during the course of the investigation Moreland asked
for and was given copies of various company reports, including the pre-shift reports from the
morning shift of January 19 to the hoot owl shift of January 27 (Tr. 73; Gov't Exh. 14) and the
weekly electrical equipment examination reports covering various days between January 4 and
January24. Tr. 73; Gov't Exh. 15. According to Moreland, Jerry Vance was one of the pre-shift
examiners who inspected the area at Spad No. 1965 for the company. Tr. 126-127. Vance
recalled conducting the pre-shift examinations prior to the incident. Vance agreed he did not

21

Weekly electrical examiner Steve Curry, who ''watered" batteries, agreed with Bickey.
Cuny testified it was his practice to add water to the batteries' cells if the water level was low, but
he did not do so if the batteries were going to be charged. Tr. 862
31 FMSHRC 204

notice fire retardant material was missing from the ribs at the battery charging station. 22 Rather,
he remembered the area at Spad No. 1965 as being well rock dusted, and as containing fire
extinguishers and extra bags of rock dust. Tr. 754. To Vance, these conditions alone meant
batteries could be charged in the area because, as Vance then understood the requirements of
section 75.340(a), fire retardant material on the ribs was not necessary to comply with the
standard's requirements. He believed the application of Pyro-Chem as an additional precaution
the company voluntarily undertook to "further fireproof[the] area." Tr. 754-755. Therefore, at
the time of the inspections he thought the area was in compliance. Tr. 754. MSHA's
investigators disagreed, and charged the company with a violation of section 75.360(b)(9), for
failing to perform an adequate pre-shift examination (Order No. 7249166). They further charged
the failure of the weekly electrical examiner to note, among other things, that the batteries were ·
not properly maintained meant the weekly examination was inadequate (Order No. 7249167).

RESOLUTION OF THE ISSUES
WEVA 2006-125-R
WEVA 2007-196
Section 104(d)(l) Citation No. 7249165 states:
The unattended 35 C scoop charger . ; . located at [S]pad
. No. 1965 was not provided with a fire suppression
system or enclosed in a noncombustible structure.
Batteries were being charged on the bottom of the
scoop and were not provided with fire suppression
systems required by[§] 75.1107-3 through[§] 75.1107-16.
. . . Through interviews this charger station has existed for
2 to 3 weeks.
Gov't Exh. 1.

THE VIOLATION
Among other things, the standard requires battery charging stations to be "housed in
noncombustible structures or areas or to be equipped with a fire suppression systems meeting ...
[specified] requirements." I find the requirements of the standard were not met. There really is

22

After the incident, when he was informed the retardant in fact was missing, he viewed
the condition as an aberration because, as he put it, Coal River "always Pyro-Chem'd [its]
charging stations." Tr. 753; see also Tr. 755. Production manager Larry Blackbum agreed. He
could not recall the company ever receiving a prior citation for failing to provide a fire
suppression system at a battery charging station. Tr. 606.

31 FMSHRC 205

no question about this. The battery charger was not "housed in noncombustible structure;" nor
was the area in which it was located rendered noncombustible by the application of Pyro-Chem
to the walls. Since the batteries were charged on the floor at Spad No. 1965 rather than on the
scoop itself, the charging station was not equipped with a "fire suppression system" within the
meaning of the standard, and for these reasons I find the violation occurred as alleged.

S&SGRAVITY
An S&S violation is a violation "of such nature as could significantly and substantially
contribute to the cause and effect ofa ... 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&Snature ofa violation, the Secretary must prove: (1)
the underlying violation; (2) a discrete safety hazard - that is, a measure of danger to safetycontributed 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 (7th Cir. 1995); Austin Power Co., Inc. v. Sec'y ofLabor, 81 F. 2d 99,103 (5th Cir.
1988) (approving Mathies criteria).
It is the third element of the S&S criteria that is the source of most controversies
regarding S&S findings. The element is established only if the Secretary proves "a reasonable
likelihood the hazard contributed to will result in an event in which there is an injury." U.S. Steel
Mining Co., Inc., 7 FMSHRC 1125, 1129 (August 1985). Further, an S&S determination must
be based on the particular facts surrounding the violation and must be made in the context of
continued normal mining operations. Texasgulf, Inc., IO FMSHRC 1125 (August 1985); U.S.
Steel, 7 FMSHRC at 1130.

Finally, the S&S nature of a violation and the gravity of a violation are not synonymous.
The Commission has pointed out that the "focus of the seriousness of the violation is not
necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry,
but rather on the effect of the hazard if it occurs." Consolidation Coal Co., 18 FMSHRC 1541,
1550 (September 1996).
The Secretary established a violation of section 75.304(a). She also established a safety
hazard contributed to by the violation. In this regard, I find Maynard's testimony concerning the
hazards associated with charging batteries logical and pertinent. He persuasively explained how
charging batteries can result in ..fires, hydrogen buildup, [and] explosion[s]." Tr. 181. The
requirements of section 75.304(a) are designed to greatly minimize these hazards. If an
explosion and/or a fire had occurred at Spad No. 1965 while the batteries were being charged,
little was in place to minimize the chance the ribs would catch fire and the fire would spread.

31 FMSHRC 206

Without the protections required by the standard, it is reasonably likely the hazard would
have contributed to an injury. The splices in the battery cables provided a potential ignition
source for hydrogen liberated while the batteries were charging. If an explosion and/or a fire
occurred, smoke and/or fume inhalation or burns were reasonably likely to result. Miners likely
to be injured would either have worked in the vicinity of the accident or would have been sent to
fight the accident's results. fu this regard, I note the mine superintendent's candid admission that
eight or nine miners could have been affected in the event of an explosion. Tr. 834; see also Tr.
823-824. B.K. Smith maintained no miners would have been affected in the event of a fire
because, if the stoppings remained intact, smoke would have traveled away from the miners. Id.
However, his contention is highly speculative and too problematic. The fact is, underground
mine fires can disrupt ventilation and send smoke and fumes over the miners working in fresh
air. Inhalation and/or burn injuries were reasonably likely to be serious, even fatal, and for these
reasons I conclude the violation was S&S. Moreover, in view of the kind of injuries that were
likely to happen to miners if the hazard occurred, I find the violation also was serious.
UNWARRANTABLE FAILURE AND NEGLIGENCE
Unwarrantable failme is "aggravated conduct, constituting more than ordinary negligence
... in relation to a violation of the Act." Emery Mining Corp. 9 FMSHRC 1997, 2004
(December 1987). Unwarrantable failure is characterized by such conduct as "reckless
disregard," "intentional misconduct," "indifference," or "a serious lack of reasonable care." Id.
2003-2004; Rochester & Pittsburg Coal Co., 13 FMSHRC 189, 193-194(February1991); see
also Rock ofAges Corp. v. Sec'y ofLabor, 170 F.3d 157 (2d Cir. 1999); Buck Creek Coal, Inc. v.
MSHA, 53 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure test).
Moreover, the Commission has examined the conduct of supervisory personnel in determining
unwarrantable failure, and recognized that a heightened standard of care is required of such
individuals. See Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011 (December 1987)
(section foreman held to demanding standard of care in safety matters); S&HMining, Inc., 17
FMSHRC 1918, 1923 (November 1995) (heightened standard of care required of section
foreman and mine superintendent). Negligence, of course, is the failure to meet the standard of
care required by the circumstances.
I conclude the violation was not caused by Coal River's unwarrantable failure to comply
with the standard. I do not entirely agree with Willis that the charging station was "set up ...
without ... regard to fire suppression." Tr. 284. I accept Mark Blackburn's essentially
unchallenged testimony that the Pyro-Chem the company intended to apply to the walls of the
charging station was frozen, and I find, as Blackburn testified, that when he learned of the
situation, B.K. Smith ordered the area to be sprayed. Tr. 699-700, 707. The record reveals
nothing "aggravated," ''reckless," or "intentional" in the company's failure. fudeed,
Superintendent Smith throughout the course of the hearing impressed me as a caring, careful, and
conscientious supervisor, one any company would be lucky to employ and any miner would be
lucky to work for. I fully believe he was as surprised as anyone when he learned his instructions
had not been followed and the area had not been sprayed. As he stated, it was ''just like a smack

31 FMSHRC 207

in the face." Tr. 801.
The record also does not support a finding of heightened neglect. There was no showing
the failure to provide fire protection was a habitual practice at the mine (see, e.g., Tr. 696, 802).
Further, the rock dust that covered the ribs clearly made the absence of Pyro-Chem difficult,
although not impossible, to detect. In this regard, Larry Blackbum' s testimony regarding the
similarities in the color of rock dust and Pyro-Chem was persuasive. Tr. 603-604. I agree with
Blackbum that the lack of Pyro-Chem would not have "jumped out" at anyone. 23 Tr. 634

In sum, I conclude the failure to apply Pyro-Chem to the ribs at Spad No. 1965 reflected a
lack of care, but not one so heightened as to constitute unwarrantable failure. Rather, the
violation occurred due to Coal River's moderate negligence, and I will order the citation to be
modified to reflect this fact.
WEVA 2006-126-R
WEVA 2007-196
Section 104(d)(l)-Order No . .7249166 states in part:

[An in]adequate pre-shift examination was conducted ,
for the 35 C Scoop charger ... located at [S]pad [No.]1965. The pre-shift examiners did not record obvious
hazards that existed at this location. [The] charger
station was not provided with a fire suppression system
or enclosed in a noncombustible structure. Through
interviews with management and miners [the] charger
has been at this location for two to three weeks. No
hazardous conditions [have] been recorded in the
pre-shift records concerning the [charger] during
this period of time.
Gov't Exh. 2.

THE VIOLATION
Section 75.360(b)(9) requires the pre-shift examiner to "examine for hazardous
conditions" at "[u]nderground electrical installations," and section 75.360(d)(f) requires the
keeping of a record of "hazardous conditions and their locations found by the examiner during
each examination."

23

The testimony of Mark Blackbum and Jerry Vance, both of whom were familiar.with
the chemical and with rock dust, corroborated that of Larry Blackburn in this regard. Tr. 694,
695, 713, 756.
31 FMSHRC 208

The order states that the charging station was located at Spad No. 1965 "for two to
three weeks,", but this is not certain from the record. Moreland acknowledged the two- to threeweek period was based on what he remembered hearing others say, and Moreland later agreed it
was possible the station had been at the spad for only a few days before the accident. Tr. 121;
see also Tr. 136-137. In fact, no one testified exactly when the station was moved to the area.
Mark Blackburn believed it was moved "probably a couple of days" before January 27. Tr. 708.
Jerry Vance, who conducted the pre-shift examinations immediately prior to the incident, stated
it was "a week, a couple of weeks, maybe" (Tr. 738-739) and "[i]t could have been less." Tr.
739.
Although it is impossible to establish with certainty when the station was moved, it is
reasonable to assume the station was located at Spad No. 1965 when Vance conducted his preshift examination immediately before the incident. Vance testified he did not notice fire
retardant material was missing from the ribs. Tr. 754. This oversight was confirmed by his preshift reports, none of which reference the missing Pyro-Chem. See Gov't Exh. 19. The lack of
the fire retardant material on the ribs at the charging station was a "hazardous condition." It
should have been reported. In failing to do so, Vance, and through Vance, the company, violated
section 75.360(b)(9).

S&SGRAVITY
I have found the Secretary established a violation of section 75.360(b)(9). She also
established a safety hazard contributed to by the violation. The failure to conduct an adequate
pre-shift examination in this instance meant a hazardous condition was not reported. Reporting
is an essential step in the elimination of hazards, because pre-shift reports are reviewed by
management personnel (usually the incoming shift foremen) and reported conditions are
corrected. When the incident occurred on January 27, the explosion and/or fire hazard was
augmented by the lack of Pyro-Chem on the ribs, a condition that presumably would not have
existed had Coal River fully complied with section 75.360(b)(1 ). Moreover, I find it reasonably
likely as mining continued the failure to report the lack of fire retardant material on the ribs
would have contributed to an injury. The ongoing charging of batteries whose cables were
spliced and improperly clamped (see discussion of Order No. 7249168, infra) meant it was
reasonably likely an explosion and/or fire would occur. The failure to identify the lack of fire
retardant material on the ribs also meant it was reasonably likely serious injuries would result.
This is especially true in the context of continued mining operations. The area had been rock
dusted, and Jerry Vance did not look under the rock dust for Pyro-Chem. Tr. 741. Therefore, as
mining continued there was little likelihood the lack of material ever would have been reported
as a hazard and corrected. For these reasons, I conclude the violation was both S&S and serious.
In finding the violation was serious, I reject the suggestion offered by Vance that rock dust alone
could afford sufficient fire protection for the charging station. See Tr. 749. As Maynard pointed
out, the purpose of the rock dust was to inert potentially explosive coal dust, not to retard a fire.

31 FMSHRC 209

Tr. 210.

UNWARRANTABLE FAILURE AND NEGLIGENCE
I conclude the violation was not the result of CoalRiver's unwarrantable failure.
Certainly, Vance was not guilty of reckless disregard, intentional misconduct, or indifference to
his obligations. He relied on the fact that it was the practice at Coal River to spray Pyro-Chem
on the ribs and then to.rock dust over the Pyro-Chem. While his reliance was misplaced and did
not meet the standard of care required, it was not the kind of serious lack of reasonable care that
justifies an unwarrantable failure finding. The record established the practice on which Vance
relied was a fact. It was repeatedly testified to by other of the company's witnesses, and the
Secretary did not offer evidence of frequent, previous failures to apply fire retardant material
where it was required. (For example, she did not introduce previous citations alleging the same
violation of section 75.360(b)(9).) The similarity in color between Pyro-Chem and rock dust
once both were applied meant its absence was not readily apparent. Had the company's pre-shift
examiner exercised the care required, he would have observed and recorded the fact the material
was missing. However, because the lack of Pyro-Chem was not the kind of condition that would
have ''jumped out" at him aild because it was reasonable to assume Pyro-Chem had been applied
as usual, I conclude the lack of care in failing to note its absence was ordinary and was not
unwarrantable.
WEVA 2006-127-R
WEVA 2007-196
Section 104(d)(l) Order No. 7249167 states in part:
[An in]adequate weekly examination was conducted
at the 35 C Scoop charger ... located at [S]pad [No.]
1965. Numerous and obvious hazards existed at this
location including no fire suppression provided,
damaged charger cables, and batteries not being
maintained. Records of weekly examination[s do]
not reveal any hazardous conditions existing. Through
interviews of management and the miners this charger
station has existed at this location for two to three weeks.
This violation is an unwarrantable failure to comply
with a mandatory standard.
Gov't Exh. 3.

THE VIOLATION
Section 75.512 requires "[a]Il electric equipment" to be ":frequently examined," and
31FMSHRC210

when a "potentially dangerous condition is found on electrical equipment," for the equipment to
be "removed from service until such condition is corrected." Moreover, "[a] record of [the]
examination" is required to be kept. 30 C.F.R. § 75.512. Under section 75.512-2 the frequency
of the required examination is defined as "at least weekly."

I conclude the Secretary established a violation of section 75.512, although not as
extensive a violation as she alleged. It is clear from the order and from the testimony of
Inspector Willis that :MSHA regarded the failure of the weekly electrical examiner to note the
absence of Pyro-Chem on the ribs at Spad No. 1965 as violative of the standard. Gov't Exh. 3;
Tr. 294, 299. The problem is the allegation focuses on a condition extraneous to the cited
electrical equipment. It would be a stretch indeed to regard the ribs at the charging station as part
of the charger and batteries, and I find the weekly examiner's failure to note the condition did not
violate the standard.
The order also charges the examiner should have noted the batteries were not "being
maintained." Gov't Exh. 3. To Willis, this meant low water levels of the battery cells should
have been reported by the _examiner, as should the accumulations of combustible materials on the
batteries. Tr. 296, 336.
Willis understood the last pertinent weekly electrical examination was on January 24,
three days before the incident. With regard to the water levels in .the battery cells, Willis clearly
stated his opinion the water levels were low or nonexistent at the time of the last inspection. Tr.
291-292; Gov't Exh. 15 at 4. Willis's belief was reasonable in the light of what happened on
January 27. Although there was a great deal of testimony about the right time to add water to the
batteries' cells - before or after charging - I find the most probable deduction to draw from the
incident is when the batteries were being charged that the water in several of the cells was too
low - in fact, a few of the cells might have had no water at all - and this caused the batteries to
overheat and release gas, which in tum activated the CO sensors. The electrical examiner,
Steven Curry, should have checked the batteries on January 24 to make sure the water in the cells
was at an appropriate level for the batteries to be charged. 24 At no point in Curry's testimony did
he indicate he conducted such a test as part of his examination. I find that his failure to do so
violated the standard.
As for the alleged accumulations, as I have previously found, in my view, the Secretary
did not carry her burden of proving they existed. The testimony offered by the Secretary was
almost entirely restricted to the existence of white "ash," and, as discussed above, whether the
substance was ash from combustible material or was residue from baking soda, cannot be

24

Carl Estep's assertion, watering battery cells before they are charged causes the water
and acid to overflow the cells (Tr. 950) may be true if, after watering, the level of water is too
high in the cells. But, water has to be in the cells for the batteries to take a charge, and it
logically follows there has to be a properlevel for the water, one that will not cause them to
overflow.
31FMSHRC211

determined from the record. For this reason, I find any failure of the weekly examiner to report
the presence of the alleged combustible material on the batteries did not violate the standard.
Finally, the order asserts the examiner should have reported the presence of"damaged
charger cables," and I agree The testimony established the spliced battery cables were present
when Curry conducted the examination on January 24. I have found the spliced cables posed a
hazard. The hazard should have been reported by the examiner. The spliced cables represented a
"potentially dangerous·condition" (section 75.512), a condition that could have posed an ignition
source and/or a shock hazard as mining continued.

S&SGRAVITY
.·The Secretary established a violation of section 75.512. She also established a safety
hazard contributed to by the violation. The failure to conduct an adequate weekly electrical
examination in this instance meant that two potentially dangerous conditions were not brought to
the attention of mine management: insufficient water in the battery cells prior to charging and
spliced cables in use on the batteries. As previously stated, the reporting of a hazardous
condition is an essential step in eliminating a hazard. Weekly electrical examination reports are
reviewed by management personnel and reported conditions are corrected. Here, Curry's failure
to report low water in the battery cells before they were charged meant the batteries overheated
during charging, a condition that triggered the January 27 incident. Fortunately, no injuries
occurred as a result of the incident, but a very real potential for irtjuries either through an
explosion and/or fire existed, and, in my opinion the hazard was reasonably likely to occur as
mining continued.
Moreover, the failure to report the spliced battery cables meant that as mining continued,
the spliced areas would have been exposed to more vibration and strains. The insulation at the
spliced areas could have ruptured, and the conduits could have been exposed and presented a
potential ignition source for the gas given off during charging; The spliced cables also presented
a continuing shock hazard to miners working with the batteries. Serious ll:tjuries were reasonably
likely. The company's unquestioned acceptance of whatever MPS provided and the lack of
knowledge of the electrical examiner that splicing was prohibited meant the spliced cables would
in all likelihood have remained indefinitely on the batteries. (In this regard, I again note Curry's
testimony he was unaware battery cables could not be spliced. Tr.. 866.) The injuries most
likely to result from an explosion and/or a fire or from being shocked would have been serious,
even fatal. For these reasons, I find the violation was both S&S and serious.
UNWARRANTABLE FAILURE AND NEGLIGENCE
The failure of the weekly examiner to make sure sufficient water was in the battery cells
was an unwarrantable failure. Because of the potential dangers involved in charging the batteries
when the cells contained insufficient water, it should have been a practice at the mine to have the
weekly examiners always check the water in batteries of electrically powered equipment. It is

31 FMSHRC 212

clear no such practice existed. In all likelihood the lack of such a practice directly contributed to
the January 27 incident.
Moreover, Curry's and the company's failure to detect and report the use of spliced cables
on the batteries went beyond a lack of observation. The testimony established the company
officials and Curry did not even know the use of spliced cables was prohibited. As previously
discussed, the record fully supports finding the company totally relied on MPS to provide it with
compliance ready batteries and did nothing beyond that to ensure compliance. This serious lack
ofreasonabey care resulted in the violation here at issue and it reflected both Coal River's
unwarrantable failure and its high negligence.
WEVA 2006-128-R
WEVA 2007-196
Section 104(d)(l) Order No. 7249168 states:
The 35 C scoop batteries located at [S]pad [No.] 1965
were not being maintained as approved. Insulation on
the battery lids and areas.near cells [was] damaged
and missing ... cables within the battery box ...
[were] found damaged and two were found spliced,·
cables also were not approved ... in that ... [they]
must be accepted by MSHA as flame resistant under
[P]art 18[.] [A]lso[,] battery cables must be protected
from abrasion by effective means. Scoop batteries were
also not being maintained in that cells were dry of
water and accumulations of combustible materials
were found present on the batteries. These are
obvious and extensive hazards that should have been
addressed by management .... this violation is an unwarrantable failure to comply with a mandatory
standard.
Gov't Exh. 4.

THE VIOLATION
I conclude the Secretary properly charged the company with a violation of section 75.503.
Coal River does not dispute the subject scoop was taken into and used inby the last open
crosscut. As such, the scoop was "electric face equipment" required to be maintained in
"permissible condition." The permissibility requirement extends to the components of the scoop,
including its batteries, and the evidence clearly establishes the batteries were not permissible in
several ways.

31FMSHRC213

First, at least two battery cables were spliced. The splices were testified to by Moreland
and Willis and were shown in the Secretary's exhibits. Tr. 145, 169,263; Gov't Exhs. 19, 20, 21.
Moreover, the Secretary established that under section 75.503, no splices are allowed in battery
c~bles. This ban on splices is, as Willis testified, MSHA's policy and the policy reflects the
requirements of the regulation. Tr. 251; see Gov't Exh. 28. Second, the cables used on the
scoop's batteries were not approved by MSHA. Moreland and Willis testified to this fact, and
their testimony was not disputed by Coal River's witnesses. Tr. 146, 257; see Gov't Exh. 20.
Third, and as the order alleges, the lack of proper clamps securing the cables also violated section
75.503. The testimony supports the charge. Willis's contention a non-approved Buncy clamp
was used to hold the conductors at one of the splices was not refuted, and even Bickey agreed
tape, not a clamp, was used at another of the splices. Tr. 267; 568; see Gov't Exh. 21.
Finally, the order asserts the batteries were "not being maintained" (presumably in
permissible condition), in that the battery cells were "dry of water" and "accumulations of
combustible materials" were found on the batteries. There are problems with these charges. The
record reveals the Secretary's witnesses actually did not know if the cells were totally without
water, that is, ifthe cells were "dry." (Moreland admitted he could not say which of the cells in
each battery was without water. Tr. 149.) The inspectors could not see to the bottom of the cells
because of the cells' lead plates. Furthermore, Carl Estep's contention the battery cells had to
have at least some water in them for the cells to make a circuit for the charger to function was not
refuted (Tr. 949), and Moreland and Willis essentially agreed some of the cells contained water,
although the level was insufficient. See, e.g., Tr. 149, 287. Thus, the record does not support
fin.ding the cells were "dry of water", as the order charges. Gov't Exh. 4.
Further, the evidence falls short of establishing the presence of accumulations of
combustible materials on the batteries. True, Willis' s testimony confirmed the presence of white
residual "ash" on the batteries, but, as I have noted, whether the "ash" was the result of
incinerated combustible accumulations, as he maintained {Tr. 266), or was the residue of baking
soda used to clean the batteries, as Rickey and Estep testified (see Tr. 266, 465, 940), cannot be
determined.
For these reasons, I conclude the Secretary established the scoop's batteries were not
maintained in permissible condition as alleged, but only insofar as the cables were spliced, were
not approved by MSHA, and were not permissibly clamped.

S&SGRAVITY
The Secretary established a violation of section 75.503. She also established a safety
hazard contributed to by the violation. I find Moreland's testimony that splices in battery cables
''weakened" the cables and created "the possibilities of arcing and heating" to be compelling. Tr.
145. The danger was heightened in this instance because one of the splices had been damaged to
the extent it was open and revealed the spliced cable's inner conductors. Tr. 263; Gov't Exh. 21.
However, I do not find the Government offered sufficient evidence to find any of the splices was

31FMSHRC214

causally linked to the incident of January 27. In this regard, I note Estep's observation that most
of the tape used in making the ruptured splice showed no evidence of being affected by heat, in
that it was not burned or distorted. Tr. 953-954. Nonetheless, I agree with Willis that the splices
were very dangerous because of their potential to ignite a hydrogen explosion. Tr. 256-257; see
also Tr. 331. He persuasively described the result of any such explosion as "catastrophic." Tr.
256. It also is obvious to me the splices could have contributed to a dangerous fire. Given the
fact the spliced cables were subject to vibration and abrasion as mining continued, were not
clamped properly, and·one of the splices already had ruptured, revealing its conductors, I find in
the context of continued, normal mining operations, an explosion and/or fire was reasonably
likely to occur, and serious, even fatal, injuries to miners caused by gas, smoke and/or fume
inhalation or fire were reasonably likely to result. For these reasons, I conclude the violation was
both S&S and serious. 25

UNWARRANTABLE FAILURE AND NEGLIGENCE
I conclude the company unwarrantably failed to prevent use of the spliced, improperly
clamped and non-approved battery cables. Coal River unquestionably relied on MPS to provide
it with batteries meeting
of the applicable MSHA requirements. As Estep stated, company
officials believed MPS to be a "quality vendor." Tr. 933. The attitude of mine operations
manager Larry Blackburn was typical. He stated he just "took it for granted" the batteries
supplied and serviced by MPS were acceptable to MSHA. Tr. 614; see also Tr. 807, 865; 935,
944 (testimony of other company officials regarding unquestioned reliance on MPS). I also
accept as credible the testimony of Larry Blackburn, Estep, and Curry that they were unaware
battery cables could not be spliced (Tr. 611-612, 866, 903, 935, 943), and the testimony they did
not know the battery cables supplied by MPS were not approved by MSHA. Tr. 807, 865, 935,
944. However, I fully agree with Inspector Willis that the company's reliance on MPS did not
lessen the company's culpability. See Tr. 356. Coal River's responsibility for compliance was
not subject to contract. In failing to ensure MPS provided it with batteries that complied with the
law, the company exhibited a serious lack of reasonable care. There was no evidence of a system
established by the company to check on the compliance-readiness of the equipment it was
provided. Coal River simply abrogated its responsibilities in this regard. As such, I conclude the
violation of section 75.503 was the result of its unwarrantable failure and high negligence.

all

OTHER CIVIL PENALTY CRITERIA

25

1 do not find use of the non-approved cables contributed significantly to the hazard.
While Willis expressed fear about the insulation of the non-approved cables breaking down due
to long use (Tr. 261), Bickey testified without dispute that the 2/0 cable used on the batteries was
more heat tolerant than MSHA-approved cable. Tr. 431-432. Moreover, I accept Estep's
testimony non-approved cable had long been used at the mine without problems. Tr. 938. Thus,
while use of the cable supplied by MPS violated the standard, it did not add to the S&S nature of
the violation or to its gravity.

31FMSHRC215

The parties stipulated the proposed penalties for the alleged violations would not affect
Coal River's ability to continue in business (Stip. 6) and that Coal River had a "low" applicable
history of previous violations. Stip. 7. The parties also stipulated Coal River abated in good
faith the violations alleged in the citation and orders. Tr. 397-398. Exhibit A of the Secretary's
civil penalty assessment petition indicates Coal River is of a moderately large size, an assertion
not disputed by the company. Finally, the record reveals Coal River exhibited much more than
ordinary good faith in abating the violations. For example, Larry Blackburn described how Coal
River complied with the requirement to use MSHA-approved cable on its batteries. He stated, as
soon as management became aware of the requirement, the company "had ... [MPS] come in
and change all batteries at all three [of its] mines with the MSHA approved cables." Tr. 613.
The company also discontinued spraying the ribs and chose instead to have dry chemical fire
suppression systems at each of its battery charging stations. Tr. 617-618. The heat activated
systems were hung from the roof over the chargers. Tr. 710. As Blackburn stated, the company
did "everything ... [it] could to avoid having~ .. [an] incident [similar to that of January 27]
happen in the future." Tr. 659. He added, "We tried to make a positive out of this and learn
from it." Tr. 660. Mark Blackburn described the new fire suppression system as "a better
system." Tr. 714; see also Tr. 808, 810. In addition, pre-shift examiner Jerry Vance noted after
the January 27 incident, additional training was given at the mine regarding pre-shift
examinations and how they should be conducted. Vance stated he "learned a lot." Tr. 762. With
regard to battery cables and splices, weekly electrical examiner Steven Curry noted after the
subject citation and orders were issued, things were done differently at the mine.
We [charged] every cable on every battery.
We put certification tags on every battery.
[The]. batteries are always ventilated and
we make sure the water's maintained, the
epoxy' s maintained, and we never splice
the cables.
Tr. 887; see also Tr. 959-960 (testimony of maintenance manage, Carl Estep). Curry stated if he
found a splice on a scoop battery cable, he would "shut the scoop down" until the cable was
replaced, even if the splice had been made by MPS personnel. Tr. 923. Maynard agreed, under
the management team of B.K. Smith and Larry Blackburn, there had been improvements at the
mine. He described Smith and Blackbum as "good," even "excellent," when it came to safety.
Tr. 205. From all of this, I conclude the company's attitude toward compliance and safety
wan;ants recognition and encouragement, and I will give much more weight than normal to the
good faith criteria when I assess penalties in this case.

WEVA 2007-196
CIVIL PENALTY ASSESSMENTS
CITATION NO.
7249165

DATE
1/30/06·

30CFR§
75.340(a)

31FMSHRC216

PROPOSED ASSESSMENT
$10,300

I have found the violation occurred, that it was serious, and that it was due to Coal
River's moderate negligence. Given the other civil penalty criteria, especially the company's low
history of prior violations and its greater than ordinary good faith, I conclude a civil penalty of
$2,000 is appropriate.

ORDER NO.

DATE

30 CFR §

PROPOSED ASSESSMENT

7249166

1/30/06

75.360(b)(9) $10,300

I have found the violation occurred, that it was serious and that it was due to Coal River's
moderate negligence. Given the other civil penalty criteria, especially the company's low history
of prior violations and its greater than ordinary good faith, I conclude a civil penalty of $2,000 is
appropriate.

ORDER NO.

DATE

30CFR§

PROPOSED ASSESSMENT

7249167

1/30/06

75.512

$10,300

I have found the violation occurred, that it was serious, and that it was due to Coal
River's high negligence. ·Given the other civil penalty criteria, especially the company's low
history of prior violations and its greater than ordinary good faith, I conclude a civil penalty of
$4,000 is appropriate.

ORDER NO.

DATE

30CFR§

PROPOSED ASSESSMENT

7249168

1/30/06

75.503

$5,300

I have found the violation occurred, that it was serious, and that it was due to Coal
River's high negligence. Given the other civil penalty criteria, especially the company's low
history of prior violations and its greater than ordinary good faith, I conclude a civil penalty of
$4,000 is appropriate.

ORDER
Within 40 days of the date of this decision Coal River IS ORDERED to pay civil
penalties totaling $12,000 for the violations found above. Within the same 40 days the Secretary
IS ORDERED to modify Citation No. 7249165 from a citation issued pursuant to section
104(d)(l) of the Act to a citation issued pursuant to section 104(a) of the Act and to modify the
inspector's negligence :from finding :from '"high" to "moderate." She also IS ORDERED to
modify Order No. 7249166 from an order issued pursuant to section 104(d)(l) of the Act to a
citation issued pursuant to section 104(a) of the Act and to modify the inspector's negligence

31FMSHRC217

finding from "high" to "moderate." Finally, she IS ORDERED to modify Order No. 7249167
from an order issued pursuant to section 104(d)(l) of the Act to a citation issued pursuant to
section 104(d)(l). Upon payment of the penalties and modification of the citation and orders,
these proceedings ARE DISMISSED.26

_J),,v/t/ f .t?~
David F .. Barbour
Administrative Law Judge
Distribution: (Certified Mail)
Ronald Gurka, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd
Floor West, Arlington, VA 22209-2247
F. Thomas Rubenstein, Esq., Dinsmore &Shohl, llP, 215 Don Knotts Blvd., Suite 310,
Morgantown, WV 26501

/ej

2

6These cases were tried despite my strong belief they should have been settled.
Following the trial, I orally advised the parties I still believed a settlement was the best way to
resolve the issues, and I outlined my v~ew of a reasonable compromise. The parties considered
my suggestions, but were unable to :reach an agreement. I have heard many disputes under the
Mine Act, but rarely have I been as impressed with the commitment to. safety and to the wellbeing of miners as I was with that displayed by B.K. Smith and the Blackburns. I doubt if the
trial enhanced their commitments, and I doubt if Coal River's miners, the company, the industry,
the government, or the taxpayers gained much, if anything, from the extended proceedings. With
more flexibility on the part of all involved and with more appropriate and timely intervention on
my part, the matters should have been resolved prior to the day we convened or, at the latest,
immediately after the hearing. Since these cases were initiated, the Commission has established
an office of Settlement Counsel. I am convinced the counsel's mediation would have been
helpful here, and, in the future, I will aggressively recommend parties seek the counsel's
assistance in cases such as this.
31FMSHRC218

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

February 2, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 2007-451
A.C. No. 15-02132-122679
Docket No. KENT 2008-73
A.C. No. 15-02132-127206

WEBSTER COUNTY COAL, LLC,
Respondent

Dotiki Mine

DECISION
Appearances: Christian P. Barber, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, on behalf of the Petitioner;
Noelle Holladay True, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC,
Lexington, Kentucky, and Gary McCollum, Esq., Lexington, Kentucky, on behalf
of the Respondent.
Before:

Judge Melick

These cases are before me upon petitions for civil penalty filed by the Secretary of Labor
pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq., the "Act," charging Webster County Coal, LLC, (Webster County) with violations of
mandatory standards and proposing civil penalties of$2 l ,403 .00 for the violations. The general issue
before me is whether Webster County violated the cited standards and, if so, what is the appropriate
civil penalty to be assessed in accordance with section l lO(i) of the Act. Additional specific issues
are addressed as noted.
At hearings, the parties advised that all but two of the charging documents at issue had been
settled and a motion confirming that settlement was filed post-hearing. Considering the
representations and documentation submitted therewith, I am able to conclude that the proffered
settlement is acceptable under the criteria set forth in section 11 O(i) of the Act. Approval of that
settlement will be incorporated in this decision. The two citations remaining at issue are addressed
below.
Citation No. 6693541,.issued May 30, 2007, alleges a "significant and substantial" violation
of the standard at 30 C.F.R. § 75.604(b), and charges as follows:

31FMSHRC219

.

.

The Trailing Cable on Joy Shuttle Car co. no. B 4000ET- l 6403 located on unit # 1 has an
opening in a permanent splice exposing the inner insulated conductor. This is a 300VDC
cable and the floor in this area is damp. Trailing cables are sometimes handled by the miners
to allow other mobile equipment to pass under the cable.
The cited standard provides that "[w]hen permanent splices in trailing cables are made, they
shall be ... (b)effectively insulated and sealed so as to exclude moisture ...".
At hearings, Webster County admitted the violation as charged and challenged only the
"significant and substantial", gravity and negligence findings and the amount of the Secretary's
proposed civil penalty.
Edward Nichols, an inspector for the Department of Labor's Mine Safety and Health
Administration (MSHA) has an associate degree in mining technology from Madisonville
Community College and extensive industry experience. He has been an MSHA inspector for eight
years. According to Inspector Nichols, the subject citation was issued when he observed the cited
trailing cable with what he considered to be a bad splice. The subject trailing cable supplied power
from the power station to various mobile equipment. The cable consisted of an outer jacket of hard
rubber and two inner cables with dialectric insulation. The cable carried 300 volts direct current and
power was engaged at the time of the violation.
More particularly, Nichols set forth the basis for his "significant and substantial" findings
in the following colloquy at hearings:

Q And do you believe this condition contributed to a safety hazard?
A Yes, sir.
Q And what was that hazard?
A The hazard is that, as I stated, the mining floor is wet down to allay the dust and
application of this water, cable laying on the ground, that the cable is also being watered -water has been applied to it, and the use of the mining -- piece ofmining equipment back and
forth will allow the cable to pick up moisture. ·

Q And how would that pose a hazard to a person?
A Sometimes these cables are handled by miners to allow other mobile equipment to pass
under them. The miners physically pick the cables up and hold them up out so that the
mobile equipment can pass under them or they take a spad type nail and hang it up that way

.

~~

Q In order to achieve the same objective?
31 FMSHRC 220

A Yes, in order to achieve the same purpose.

Q Now, how did you conclude that it was reasonably likely that this hazard would
contribute to an injury?
A Because of the moisture there at the ground and the continued use of this cable will just
:further deteriorate the splice. The inner insulation is a dielectric strength type insulation. It
has no mechanical value as far as hardness to insulate.

Q So what's the purpose of that inner insulation?
A The purpose of the inner insulation is to separate the two conductors from coming in
contact with each other. It's just a dielectric strength insulation only.

Q And what protects the cable from the mining environment?
A The outer jacket of the cable, the hard -- hardened rubber protects it.

Q Why did you conclude that miners sometimes handle these cables?
A Because I have seen them handle the cables.

Q At this particular mine?
A Yes.

Q Now, if you knew that a shuttle car operator would routinely do a preoperational check
before using a car on a particular shift, would that in any way change your opinion about the
likelihood of an injury here?
A No.

Q Why is that?
A Starting time for day shift is 7:00 o'clock, given the time that it would take to transport
the miners from -- from the opening of the mines, say, approximately 8:00 o'clock in the
morning. This violation was cited at 11 :25. If the operator had done his preop check at 8:00
o'clock, then approximately three -- three hours and 25 minutes had passed since he had done
his first preop check.

Q And I think -- when you observed miners handle these cables, were they wearing gloves?

31 FMSHRC 221

A Most of the time -- it's a company policy that the miners there at that mines wear gloves.
I had at different occasions cautioned miners when tliey go to reach -- it's just kind of a
reactive response. Sometimes they'll reach to grab ahold of a cable to move it out of
somebody's way or to help somebody move a piece of equipment, but I have at times
cautioned them before they grabbed ahold of the cable bare handed.
Q And do you recall or do you have any knowledge of what type of gloves these were?
A These are common type leather -- leather gloves. The company I think also issues a
rubber type glove which is a cloth type glove with a rubber application put over top of the
glove. It's kind of a spray on type or a dipping process to apply this rubber coating over the
glove to make it somewhat insulated.
THE COURT: Who was responsible at that mine for the preoperational check of the cable?
THE WITNESS: The equipment operator, sir, would be.
THE COURT: Miner operator?
THE WITNESS: Yes, sir.
THE COURT: Do you know who that was that day?
THE WITNESS: At that time, no, sir. I didn't note the person's name.
THE COURT: I see. All right.

Q (By Mr. Barber.) Does the fact that the the company has a policy for miners wearing
gloves and that you've actually observed miners handling cables with gloves on, does that
in any way change your opinion about the likelihood of an injury here?

A No, sir. Perspiration and gloves handling other pieces of equipment and so forth,
moisture may gather on the gloves and make it conductive.

Q How did you conclude that the injury here would result in lost workdays or restricted
duty?

A From receiving an electrical shock, burns or the shock itself to the body.

Q And how would that occur? What would have to happen for that to occur?
A Sometimes permanent splices and even the bare trailing cable itselfunder excessive wear
creates an air gap situation where the metals actually separates from one another. This air

31 FMSHRC 222

gap then is where the cable -- the conductor in the cabl~ will actually arc and try to keep its
path of electricity going, but in this arcing situation, the cable actually burns and bums the
rubber, and it's an explosive type.

Q And the condition THE COURT: You mean even with the insulation in place? Are you saying THE WITNESS: Yes, sir.
THE COURT: -- even if the inner insulation is in place, you know of situations where there
is arcing?
THE WITNESS: I've seen permanent splices - one time at another mines when I was giving
a safety talk, one of the car cables was laying up -- pulled up against the rib, and during that
safety talk, some of the miners and I were discussing some of the safety issues, that the
permanent splice itself just arced and it exploded.

On cross examination Nichols acknowledged however that without "pinholes" or other
exposure to the inner wires, there was no hazard or risk of injury and for someone to be injured they
would actually need to be in contact with a defective splice. Nichols did not perform any test to
determine whether there were any pinhole leaks. He also acknowledged that the cable was not wet
and that this area of the mine was dry.
MSHA electrical supervisor, Michael Moore, has a bachelors degree from Western Kentucky
University in electrical engineering technology. He also has significant industry experience as an
electrician and electrical inspector for MSHA. Moore's testimony in support of his "significant and
substantial" findings with respect to this citation was intermixed with his testimony regarding
Citation No. 6693992 and is set forth therein.
Mr. Donnie Gatten is training director for Alliance Coal, Respondent's parent company. He
has a bachelors degree in electronic engineering technology, several electrical certifications and
industry experience. Gatten testified that permanent splices on trailing cables have been damaged
in the past. If a piece of equipment struck a cable, it could result in a cable explosion due to a phase
to phase contact as described by Mr. Moore. The Dotiki mine's policy with respect to handling
trailing cables requires miners to wear gloves and to avoid trying to pick up any energized cable in
a spliced area. Dotiki policy also requires miners to wear boots with protective insulation of up to
14,000volts.
Gatten opined that it was not likely that a person would be injured by the described
conditions because there was no break in the insulation, and the mine has no practices that would
create a pinhole in conductors. Mr. Gatten opined that the inner insulation would not wear from
contact with the mine floor because the outer jacket was still on the cable. Gatten agreed that under

31FMSHRC223

continued mining operations the shuttle car cable and the damaged splice would continue to suffer
damage.
Gary Thweatt is Respondent's director of training and safety. He has been a miner since
1993, as a section foreman, an assistant safety director, and as the safety director. Thweatt testified
that the shuttle car cable at issue would not be handled very often because a mobile· equipment
operator would ordinarily have to wait less than a minute for the shuttle car to return from the face
to the feeder, and its cable to reel in, allowing the other equipment to pass.
It is not disputed that Respondent performs weekly examinations ofthe equipment, including
trailing cables, and that equipment operators perform preoperational checks on equipment, including
trailing cables, on every shift. Thweatt has seen miners pick up cables without gloves, although he
could not recall observing that practice at the Dotiki mine. The continuous miner operator's feet or
legs could contact the cable inadvertently during the mining process. · There could be inadvertent
contact with either the miner cable even if someone is not intentionally picking up the cable. Miners
intentionally step on cables to cross over them.
Citation No. 6693992, issued August 5, 2007, as amended, alleges a ··significant and
substantial" violation of the standard at 30 C.F.R. § 75.604(b), and charges as follows:
The trailing cable on Joy continuous miner co~ no. 6345 located on MMU-029-0 #4 unit has
an opening in the outer jacket exposing the inner insulated conductor. The permanent splice
4 inches from this exposed insulated conductor was rolled back form the splice, continuous
use of this cable will cause ware[ sic]. Miners handle this cable to hang the cable. The floor
in this are[sic] is damp.
As previously noted, the cited standard provides that "[w ]hen permanent splices in trailing
cables are made, they shall be " ... (b)effectively insulated and sealed so as to exclude moisture ...".
At hearings, Webster County admitted the violation as charged and challenged only the
··$ignificant and substantial", gravity and negligence findings .and the amount of the Secretary's
proposed civil penalty.
Inspector Nichols described his "significant and substantial" findings in the following
colloquy at hearings:

Q (By Mr. Barber) Can you tell us - -what's the difference between a continuous miner
cable and the shuttle car cable that we just finished discussing.
A Physically the miner cable is a much larger cable. It is a three phase cable that conducts
in this case 995 volts of AC in comparison to the DC cable which is a much smaller two
conductor cable that conducts approximately 300 volts DC.

31 FMSHRC 224

Q Any other differences in the way this cable is constructed versus the shuttle car cable?
A There is more -- there's more outer insulation I think on this particular cable than there
is on a trailing cable. There's a -- each one in the Dotiki mine, they use shielding over each
one of the phases.

Q And what's shielding?
A Shielding is a grounding. If the ground opens, the shielding is supposed to detect this
electricity and knock the breaker at the substation.

Q What's the shielding made out of?
A It's a metal construction, a web like constructed metal material that is tube like that fits
on the outer side of the dielectric insulation of the phase.

Q Does it provide any mechanical protection for the cable such as protection from abrasions
and-

A No.

Q How long was this cable?
A This cable is approximately 750 foot in length.

Q And was it energized and in use when you observed it?
A Yes, it was.

Q And do you recall where it was located? Was it suspended or on the ground or A It was laying on the ground.

Q And were there people in the area of this cable?
A The miner helper was in this area. Other people who passed by would be -- would be
in the area.

Q And who might those be? Would those be the same people that A Yes.
THE COURT: Well, maybe you ought to finish your question.

31 FMSHRC 225

Q Those would be the same people that you spoke of in discussing the previous citation?
A Yes.

Q Does this particular cable -- would it be your testimony that this cable is exposed to the
same conditions of the mine environment during use as the shuttle car cable?
A Yes. This cable is mostly on the ground. Sometimes it is hung over the entries to allow
other mobile .equipment to pass under it but miner cables are mainly up close. The miner
itself -- ifyou need more cable to reach farther -- another place or the next place and so forth,
they carry loops of trailing cable and they pull this cable with the miner itself so it is
subjected to -- due to its weight and the weight of the other parts of the cable laying on it,
it is subjected to kind of a sandpapering like effect.
(Tr. 45-47)

*****
Q (By Mr. Barber.) Did this particular condition create a hazard?
A Yes, sir.

Q And what was the hazard?
A The hazard was the exposed inner -- the opening in the outer jacket exposing the inner
insulated conductor.

Q How could that injure a person?
A Through the contact with this area and the continued use of this cable which in my
opinion would continue throughout the day that it would be further damaged.

(Tr. 49)

*****
Q (Mr. Barber.) What's the basis or how did you conclude that it was reasonably likely that
this condition would result in an injury?

A Because of the exposed inner insulation -- insulated conductors.

Q Well -THE COURT: Go ahead. You can continue. Did you have further response to that?

31 FMSHRC 226

A With continued use -- the dielectric portion of a cable is a very soft material, and through
continued use of it, it will deteriorate the insulation of the conductors.

Q When you say dielectric material, are you referring to the inner insulation?
A Yes.

Q And I believe you testified that miners sometimes handle this cable, and what's the basis
for that testimony?
A Miners handle the cable to hang the cable up. The cable will be hung from the
transformer where it receives its power over the crosscuts to allow scoops, supply jeeps, and
other normal pieces of mining equipment that are used to travel. Sometimes it's hung even
at the face for a pinner if the pinner/roofer bolters don't have crossover pads to cross over the
cable. They hang it temporarily.
THE COURT: Same reasons as you stated for the prior violation?
THE WITNESS: Yes, sir.
Q (By Mr. Barber.) And I assume then for your conclusion that the injury would result in
lost workdays or restricted duty, the basis would be the same as with the prior violation?
A Yes, sir.
(Tr.50-51)
Electrical Inspector Moore's findings in support ofhis "significant and substantial" findings
for this citation were discussed in the following colloquy at hearings:

Q And you heard Mr. Nichols' testimony earlier today with respect to that citation; is that
correct?
A Yes, sir.

Q And do you have an opinion about whether the condition described in that citation and
by Mr. Nichols here today was reasonably likely to contribute to an injury?
A Yes, sir, I do.

Q And what is that opinion?
A

The outer jacket of a trailing cable is designed to-- for abrasion only, and the inner

31 FMSHRC 227

conductors has a dielectric strength rating around each phase conductor. Also that shielding
that's around that particular phase is copper. It's soft alloy. And there's about a three to one
ratio as far as the insulation. Insulation in comparison like -- I think the insulation -- all
cables are designed by IPCEA ratings.
THE COURT: What does IPCEA mean? What does that stand for?
THE WITNESS: IPCEA is Industrial Power Cable Engineering Association, and that has
changed. ICEA is Industrial - excuse me. Insulated Cable Engineering Association. It
gives a design for all cables that are used underground and MSHA accepts that design.
THE COURT: Sets an industry standard?
THE WITNESS: Yes, sir. It's -- and by that standard, rm saying.that the insulation around
each phase conductor is, for example, 80,000 in thickness versus the outer jacket which is
250,000ths in thickness, which would be a three to one ratio --approximately a three to one
ratio.
THE COURT: Are you talking about the cables here we're talking about today?
THE WITNESS: Yes, sir.
THE COURT: You know the dimensions of these cables?
THE WITNESS: Yes, sir.
THE COURT: Okay. Go ahead.
Q (By Mr. Barber.) And we're talking right now about the continuous miner cable that's
described in Government Exhibit 6?
A Yes, sir, that's correct.

Q As part of your answer you just explained that the inner insulation is dielectric strength
insulation. What's the purpose of that inner insulation?
A Insulation on each phase conductor is rated for 2,000 volts. Insulation is -- and the
voltage that's in the cable is 995 volts. That insulation which is rated for 2,000 volts contains
that working current and voltage from the unit transformer to the miner, and the shielding
on the outside of each -- each phase conductor is in case you get any type of damage to the
phase conductor itself that when it -- when that power exits the insulated conductor and
makes contact with the shielding, there will be a phase to ground fault and the ground to
phase protected device that the circuit breaker will open. And, again, you have -- and not
31 FMSHRC228

only is that designed -- or that particular trailing cable has got two grounding conductors
inside, and they are contacting the copper shielding around each phase conductor, and then
we have this outer jacket which is for abrasion because the cable is flexed and twisted and
carried on and bent and looped and dragged.
THE COURT: What was the question? I think I lost track of the question. We seem to be
going on here beyond any question. What was the precise question you asked him?

Q (By Mr. Barber.) The precise question was why he agreed that this condition was
reasonably likely to lead to an injury. So why-- given all the substance of that answer, why
do all those facts lead you to conclude or to agree with inspector Nichols that injury was
reasonably likely here?

A Because the fact that the cable was a poorly designed -- poorly made splice that rolled up
the way he described it, if the company had their preop, normally a cable that -- spliced and
on a 995 miner cable is designed in such a manner that it would roll back like that in a short
period of time of four hours, and that it's obvious that the phase conductors were exposed
with that copper coating on the outside of each phase, and that with continuous working -or continuous dragging of this cable, it will deteriorate that soft copper shielding and also
that soft inner insulation around each phase conductor.
THE COURT: Then what would happen in your opinion?
THE WITNESS: Somebody could touch that particular damaged spot and receive electrical
shock or it could explode if it was a phase to phase of those. Those phase conductors are -if they're damaged for a low KBA rating on that transformer THE COURT: What kind ofrating?
THE WITNESS: Low rating on that THE COURT: I thought you said APA or something. What was that? A low rating?
THE WITNESS: KBA.
THE COURT: What does KBA stand for?
THE WITNESS: A thousand volt amps. We've got--ifyou've got a transformerTHE COURT: I don't want to go beyond -THE WITNESS: I'm trying to explain why that would blow up.

31 FMSHRC 229

THE COURT: All right. Go ahead.
THE WITNESS: Okay. I've got a transformer that's got 1,000 KBA transformer and it's got
a cadence of five percent, then you're going to have 11,000 amps that's going to be generated
when you have a phase to phase fault, and this has happened time and time again in the
industry. Any time we get 11,000 amps flowing, you're starting to take that soft copper and
you're vaporizing it, you're creating copper metal alloys that are flying off ofthat stuff, you're
going to have a cloud of dust, you're going to have an explosion type, like an arc welder, and
if anybody is anywhere close to that, they could be damaged, their hands, even if they've got
rubber gloves or leather gloves or cotton gloves on, they're going to get damaged. That
damage can bum all the way up their hands and arms which has happened in our district.

Q (By Mr. Barber.) How does this condition that the inspector described in this citation
contribute to that hazard? Is it yourtestimony that it does contribute to that?
A Yes, because it's -- my outer jacket is gone now and it's done rolled up on this poorly
made splice and you've got everything exposed now. If that continues to operate like that,
the outer -- the protection of that cable is going to be gone, which is the copper outer
shielding which is soft copper and that soft insulation which has dielectric strength dielectric rating of2,000 volts.
Q What is that soft insulation made out of! Do you know?
A It's just. a rubber compound that's designed by -- it can be bought by the company and
different compounds can be ordered for that particUlar insulation.
THE COURT: So you don't know exactly what this insulation was in this case?
THE WITNESS: I don't know the brand name. If I know the brand name and the number
on it, then I can get that -- get the THE COURT: But regardless of the nature of the material, your testimony would be the
same?
THE WITNESS: Yes, sir. Regardless if it's Tiger or whatever brand, Anaconda or whatever
brand they use, they're normally a compound that's rated for 2,000 volts.

Q (By Mr. Barber.) Is there a particular reason why that material is soft?
A Because the -- the reason why the inner -- why the phase insulation is soft because of the
-- because of the abrasive outer jacket is designed by the ICEA program that MSHA
recogmzes.

31 FMSHRC 230

Q But in order to do its job, the inner insulation, does it have to be a softer material?
A It's designed that way.

Q This particular cable, does it have a feature that would cause it to de-energize if
somebody contacted a bare wire or contacted the energized portion of the conductor?
A Ifthat particular area that was in question here on this citation 6693992, if -- let's say, we
had a damaged spot in there and had a fault condition there, phase to ground, the breaker
would -- or when that has a phase to ground fault on it to that shielding, that shielding
vaporizes, and you go back down there and they put the breaker back up. Now I've got a
damaged place in that 995 where the shielding is gone, and a man touches that, he's going
to be electrocuted or -- go ahead.

Q What would happen -- if he touches it, would the breaker knock?
A No.

Q Why?
A It will not break. It will not open. Even though it would cause -- a human body for a
man is usually 1,000 ohms. That's what we calculate that at, all our electrical measurements
that we go by. So ifl have a damaged spot in that cable and ifl contact it, I will be -- receive
575 volts of voltage through me and into -- because I'm standing on -- or-- which is the same
potential that's all the grounding median in that mines. It don't make any difference if that
ground-

THE COURT: What would that do to a person?
THE WITNESS: It would kill them.
THE COURT: I see. All right.
Q (By Mr. Barber.) And that would happen before the cable would be de-energized by any
sort of safety feature?

A Yes, sir, that's correct.
Q If a person touched the cable in that same manner but they were wearing gloves, if they
touched the bare copper on this cable, would the gloves protect them from being injured?

A No, sir, they will not, not that kind of voltage - not that 995, no.

31 FMSHRC 231

Q Are there any -- are you aware of any type of gloves that would A We wear gloves that is rated for 750 volts. When we're working with circuit breakers THE COURT: The question was, are you aware of any gloves that would protect you from
that voltage?
THE WITNESS: Yes, sir.
THE COURT: Okay. Next question.

Q (By Mr.. Barber.) What are those gloves?
A They're -- they're dielectric rated gloves with leather coating, leather cover on the outside
that I wear.

Q I believe you heard Mr. Nichols testify about the gloves that he has observed miners in
the Dotiki mine wear. Is that the same type of glove that you're talking about here, the
dielectric strength?
A No, sir, it is not.

Q And what's the difference between the gloves?
A My gloves are rated at 750 volts. The gloves they wear are not rated for any type of
electrical - dielectric strength -- dielectric rating.
THE COURT: I didn't hear that testimony from the other witness. Did he testify that they
didn't have those kind of gloves at the mine?
MR. BARBER: I believe he testified -THE COURT: Well, you're satisfied that he did testify to that? If it's not in the record, then
it's not in the record. All right.

Q (By Mr. Barber.) Have you been to the Dotiki mine?

A Several times.

Q And have you observed miners wearing gloves when they handle cables?
A Yes, sir.

31 FMSHRC 232

Q And do you know what kind of gloves those are?
A They're cotton gloves or they're rubber gloves or they're leather gloves.
Q Are they the -- is that the same type of glove that would protect them from injury if they
contacted this cable?

A No, sir.

Q This particular citation notes that the floor in this area is damp. Does that have any
relevance to your opinion that it would be reasonably likely that this condition would result
in an injury?
A It has -- ask me that again, please.

Q If the floor in this area was damp, does that have any relevance -- is that relevant to your
opinion that it was reasonably likely that this condition would result in an injury?
A Reasonably likely whether it's wet or damp.
THE COURT: Restate the question. Listen carefully to the question.
THE WITNESS: Yes. Sorry, sir.

Q (By Mr. Barber.) If the floor in this area was damp, how is that relevant to your -- is it
relevant and how to your opinion that it was reasonably likely that this condition would result
in an injury?
A It wouldn't change my opinion. It still would be reasonably likely.

Q If the floor was dry -A Orwet.

Q -- would your opinion be the same?
A Yes, sir.

Q Why is that?
A Because if it's wet or dry, the only value of that mine floor that we stand on is always less
than three -- less than three ohms. Therefore, the water in the mines is contaminated which
gives it as the same potential as the dry ground is due to the fact that I've took numerous

31 FMSHRC 233

earth meager type readings in our area and I know that that -- at Dotiki, they drill the bore
hole down below the fire clay and that's what the men stand on which is the mine floor.
THE COURT: All right. Did you want a full explanation or just the answer?

Q (By Mr. Barber.) If I understand you correctly -- in other words, are you saying that the
groundTHE COURT: It's difficult for lay people to follow you sometimes.
THE WITNESS: But we need.to know -THE COURT: That's why we want to know basically what your conclusion is, and on cross
examination, if she wants a further explanation, she can ask it.

Q (By Mr. Barber.) Are you saying that the dry ground is as good a conductor as damp
ground?
A Yes, sir, absolutely, due to my tests.
(Tr. 67-78)
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
wjll result in an injury or illness 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 explained:
fu 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 hazard
contributed to will result in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.

See also Austin Power Co. v. Secretary, 861F.2d99, 103-04 (5th Cir. 1988), aff'g
9 FMSHRC 2015, 2021(December1987) (approving Mathies criteria).
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 normal mining operations. U.S. Steel Mining Co., Inc., 6 FMSHRC

31 FMSHRC 234

1573, 1574(July1984); See also Halfway, Inc., 8 FMSHRC 8, 12(January1986) and Southern Ohio
Coal Co., 13 FMSHRC 912, 916-917 (June.1991).
It is undisputed, of course, that, with respect to both citations, the Secretary has established
a violation of a mandatory safety standard. With respect to both citations, I find that damage to the
outer jacket and to the pennanent splice on the cited cables contributed to the discrete safety hazard
of contact with exposed energized conductors inside the cables and phase-to-phase contact between
the conductors. There·also can be little dispute that damage to, and contact with, the conductors
inside the cables would result in reasonably serious injury such as electrical shock and burns. The
Secretary has therefore established the first, second, and fourth elements of the Mathies test.
With respect to the third element of the Mathies inquiry, I find that for both citations the
credible evidence establishes a reasonable likelihood that the hazard contributed to would result in
an injury. There is no dispute that when Inspector Nichols obsetved the violative conditions
described in these citations that the cables were in use, energized, and subject to continued wear.
I find therefore that during continued normal mining operations the cables would likely sustain
further wear and that the splices would likely deteriorate.
· The credible record evidence also shows that miners will pick up cables for various reasons.
Inspector Nichols credibly testified that he has obsetved miners handling cables at this mine, and on
different occasions he has cautioned miners as they reached for cables bare-handed. The credible
evidence also shows that the miner cable is subjected to an abrasive environment in the mine
I also note that although the inspector obsetved no pinholes or bare wire when he wrote the
citations that does not bar a finding that the violations were of a significant and substantial nature.
See Harlan Cumberland Coal Company, 20 FMSHRC at 1286 (Dec. 1998) and U. S. Steel Mining
Co., 6 FMSHRC 1573 (July 1984). In reaching my conclusions herein I have also not disregarded
Respondent's claims that protective gloves and boots worn by its miners would prevent electrical
shock, however, such equipment would not in any event protect from explosions from phase to phase
contact. I also note that the cases cited by Respondent, i.e. Oak Grove Resources, LLC, 29
FMSHRC 1089 (Nov. 2007) (ALJ), and Lone Mountain Processing, Inc., 29 FMSHRC 957 (June
2007) (ALJ), are factually distinguishable. Accordingly, those cases provide no support to its
argument. For the reasons noted above I also find that the violations were of significant gravity.
I further find that the violations were the result of the operator's moderate negligence. It is
apparent from the record evidence that the cited splices were obvious. Moreover, the record shows
that this operator had a number of violations of the same standard at issue herein i.e. 30 C.F.R. §
75.604(b), during relevant times preceding these violations.

Civil Penalties
Under Section 11 O(i) ofthe 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

31 FMSHRC 235

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. It has been stipulated that the Dotiki Mine is a large mine and Alliance Resources Partners
LP is a large controlling entity. It has been further stipulated that the Secretary's proposed penalties
would not affect Respondent's ability to remain in business. Respondent has a significant history
of violations (Exh G-2). The gravity and negligence findings have previously been discussed.

ORDER
Citation Numbers 6693541 and 6693992 are affirmed with "significant and substantial"
findings and Webster County Coal, LLC is directed to pay civil penalties totaling $17,531.00 (which
includes penalties of $1,900.00 and $2,000.00, for the violations charged in Citation Numbers
6693541 and 6693992, respectively).··

Gaxy Melick

1

Administrative Law Judge
(202) 434-9977
Distribution:(Certified Mail)
Christian Barber, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219
Noelle Holladay True, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 2333 Alumni Park
Plaza, Suite 310, Lexington, KY 40517
/lh

31 FMSHRC 236

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

February 2, 2009

DISCRIMINATION.PROCEEDING

RICHARD JAIMES,
Complainant

Docket No. LAKE 2008-486-DM
NC-MD-08-05

v.

STANSLEY MINERAL RESOURCES, INC.:
Respondent

Robinson Run No. 95 Mine
Mine ID ll-00176Dl70

DECISION
Appearances: Richard Jaimes, Adrian, Michigan, prose;
Richard B. Stansley Jr., Sylvania, Ohio, on behalf of the Respondent.
Judge Melick

Before:

This case is before me upon a complaint of discrimination filed by Mr. Richard Jaimes
alleging that he was discharged by Stansley Mineral Resources Inc.(Stansley Minerals), on
September 19, 2007, in violation of Section 105(c) of the Federal Mine Safety and Health Act of
1977, 30 C.F.R. § 801 et seq., the ••Act."1 Stansley Minerals denies the allegations of unlawful
discharge and, alternatively, seeks dismissal of the complaint on the grounds that the complaint was
not filed within the time limits set forth in Section 105(c)(2) of the Act.

1

Section 105(c)(l) of the Act provides as follows:

No person shall discharge or in any manner discriminate against or cause to be discharged
or cause discrimination against or otherwise interfere with the exercise of the statutory rights of
any miner, representative of miners or applicant for employment in any coal or other mine
subject to this Act, because such miner, representative of miners or applicant for employment has
filed or made a complaint under or related to the Act, including a complaint notifying the
operator or the operator's agent, or the representative of the miners at the coal or other mine of an
alleged danger or safety or health violation in a coal or other mine, or because such miner,
representative of miners or applicant for employment is the subject of medical evaluations and
potential transfer under a standard published pursuant to section 101 or because such miner,
representative of miners or applicant for employment bas instituted or caused to be instituted any
proceeding under or related to this Act or has testified or is about to testify in any such
proceeding, or because of the exercise by such miner, representative of miners or applicant for
employment on behalf of himself or others of any statutory right afforded by this Act.
31FMSHRC237

Section 105(c)(2) provides that "any miner... who believes that he has been discharged,
interfered with, or otherwise discriminated against by any person in violation ofthis subsection may,
within 60 days after such violation occurs, file a complaint with the Secretary [of Labor] alleging
such discrimination ... ". The Commission has long held, however, that this 60-day limit is not
jurisdictional and a judge is required to review the facts on a case-by-case basis, taking into account
the unique circumstances of each situation in order to determine whether a miner's late filing should
be excused. Hollis v. Consolidation Coal Company, 6 FMSHRC 21, 24(January 1984), aff'd mem.
750 F.2d 1093 (D.C. Cir. 1984); Herman v. Imco Services, 4 FMSHRC 2135(December1982).

In this case there is no dispute that Mr. Jaimes' alleged protected activities began in August
2007 and continued until shortly before his discharge on September 19, 2007. There is also no
dispute that Mr. Jaimes' complaint ofunlawful discharge to the Department ofLabor's Mine Safety
and Health Administration (MSHA)was dated April 9, 2008, or almost five months after the 60-day
deadline set forth in Section 105(c)(2). At hearings, Mr. Jaimes explained that he delayed filing his
complaint to MSHA because:
I wanted to be very determined, I mean, very reasoned in my, you know, redress. I wanted
to make sure that I wasn't, frivolous. So, I waited for the EEOC [Equal Employment
Opportunity Commission] to make a rendering on their case. And when they, when.they
made their rendering, then I figured, that I determined I would just, you know, follow that
up through the Mine Safety Health Administration. And that's why- - and that's the thing
that I noted on the, on my request is that I was trying to be very prudent and very, you know,
measured. I wasn't just, I wasn't just throwing everything up, you know, on the wall and
seeing what would stick. (Tr. 99-100).
Significantly, Mr. Jaimes does not claim that he was unaware of the filing deadlines under
the Act and bases his excuse for late filing solely on his election to give priority to his EEOC
complaint wherein he asserted that his discharge was the result of age discrimination. I do not find
this reason to be a grounds to excuse his late filing in this case. See Wilson v. CSR Southern
Aggregates,22FMSHRC 1218(ALJ)(October2000). Underthecircumstancesthecomplaintherein
must be dismissed.
Even assuming, arguendo, that the complaint was filed timely, I find that Mr. Jaimes would
have, in any event, failed to sustain his burden of proving that his discharge was in violation of the
Act. He alleges in his complaint to MSHA on April 9, 2008, as follows:
On Sept 18, 2007, I was hauling brown clay to a dump site under construction. While in the
process oflifting my load, the load shifted resulting in the truck box :flipping on its side. The
failure of the company to properly train me to operate the haul truck along with the absence
of a safety berm on an uneven slope contributed to the accident. In addition, my repeated
requests to replace bad tires and leaking wheel cylinder all went unheeded leading to this
accident. My safety concerns were noted on the daily vehicle report. As a result of this
accident ~n (9-18-2007) and the accumulative effect of other discrinitaory[sic] practices, I
was terminated [as] of (9-19-2007) I am seeking recovery of lost wages and compensation ·
to be made whole.

31 FMSHRC 238

This Commission has long held that a miner seeking to establish a prima facie case of
discrimination under section 105(c) of the Act bears the burden of persuasion that he engaged in
protected activity and that the adverse action complained of was motivated in any part by that
activity. Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800
(October 1980), rev'd on grounds, sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd
Cir. 1981 ); and Secretary on behalfofRobinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18
(April 1981 ). The operator may rebut the prima facie case by showing either that no protected
activity occurred or that the adverse action was in no part motivated by the protected activity. If an
operator cannot rebut the prima facie case in this manner, it may nevertheless defend affirmatively
by proving that it would have taken the adverse action in any event on the basis on the miner's
unprotected activity alone. Pasula; supra; Robinette, supra. See also Eastern Assoc. Coal Corp.
v. FMSHRC, 813 F .2d 639 (4th Cir. 1987); Donovan v. Stafford Construction Co., 732 F.2d 194, 195196 (6th Cir. 1983) (specifically approving the Commissions' Pasula-Robinette test). Cf. NLRB v.
Transportation Management Corp., 462 U.S. 393, 397-413 (1983) (approving nearly identical test
under National Labor Relations Act.)·
The record shows that Mr. Jaimes was hired by Stansley Minerals in April 2007, as a loader
operator/customer service representative, loading semi-trucks and checking them in and out of the
mine. A month or two after he was hired, he was transferred to the mine at issue where he operated
the 30-ton No. 4 haul truck. Jaimes was discharged on September 19, 2007, following verbal and
written warnings issued as a result of several vehicular accidents (Exhibits R-1,R-2, and R-3).
These incidents were summarized by Respondent's president, Richard Stansley, as follows:
On 6/20/2007, Mr. Jaimes was involved in a haul truck rollover accident exposing his coworkers and himself to unwarranted hazardous condition [sic] which could have resulted in
loss of life or limb. The accident resulted in substantial damage to the equipment and lost
production time. The disciplinary action included verbal discussion and a written warning.
On 8/31/2007, Mr. Jaimes was involved in a backing incident where he was in a haul truck
that was backed into by a co-worker. After an investigation and review of witness
statements, it was found that Mr. Jaimes [sic] actions contributed to the accident which was
found to be avoidable. The accident exposed his co-workers and himself to unwarranted
hazardous condition [sic] which could have resulted in loss of life or limb. The accident
resulted in substantial damage to the equipment and lost production time. The disciplinary
action included verbal discussion and a written warning.
On 09/i 8/2007, Mr. Jaimes was involved in a second haul truck rollover accident exposing
his co-workers and himself to unwarranted hazardous condition [sic] which could have
resulted in loss oflife or limb. The accident resulted in substantial damage to the equipment
and lost production time. The incident resulted in termination of employment.
(Exhibit R-18)

At hearings, Jaimes acknowledged that, prior to his discharge, he did not in fact make any
complaints about his alleged lack of training and the alleged absence on September 18, 2008, of a
berm at the accident site. He clarified and amplified his other allegations of protected activity as
31 FMSHRC 239

follows: (1) beginning in early August of 2007, he reported on an almost daily basis on his daily
vehicle reports that tbe tire treads on the No. 4 truck were "in very bad shape", (2) that two or three
times he verbally told his supervisor, Mr. Francis Tandoh, that he needed new tires, (3) that he
reported in his daily vehicle reports that he had a leaking wheel cylinder, and (4) that he reported to
his supervisor that other employees were acting irresponsibly by "playing chicken" and using their
cell phones (Tr.42-43).
Ti.re Complaints
There is no dispute that Mr. Jaimes frequently reported on his daily vehicle, reports,
complaints about the tires on his haul truck. (See Exhibit R-15). Mr. Jaimes' supervisor, Francis
Tandoh, holds a university degree in mining engineering and is experienced in the mining industry.
Tandoh testified that he was aware of Jaimes' complaints regarding the condition ofthe tread on the
tires of his haul truck. As a result of these complaints Tandoh inspected the tires himself and
brought in an outside contractor to examine the tires. Both found the.tires to be in safe condition.
Jaimes also acknowledged that on August 30, 2007, MSHA performed a complete inspection at the
mine and that no citations were issued. Jaimes admitted that even though the MSHA inspector
examined his truck he (Jaim.es) did not report any problem with his tires. On the daily inspection
report earlier that same date, Jaimes had reported several defects i.e. "Tires Damage/Low" and
"Body, Blade, Bucket" (Exhibit R-15).

Mr. Tandoh testified that the same tires remained on the No. 4 haul truck following the
MSHA inspection and even after Mr. Jaimes' discharge on September 19, 2007. According to
Tandoh, when an employee reports a safety condition, it is Tandoh's obligation to make sure it is
corrected. Tandoh maintained that he does not interfere with the employees' right to report
conditions the employee feels are unsafe. Tandoh checks out those conditions but if found not to
be unsafe he, in essence, does nothing further. Tandoh testified that he made no recommendation
as to whether Jaimes should be discharged following his third accident on September 18, 2007. It
was his opinion, however, that.Jaimes was not competent to operate. either the front end loader or
the haul truck. According to Tandoh, Jaimes was a safety risk to himself and others.
Complaints about a leaking wheel cylinder
Jaimes testified that he had a leaking wheel cylinder on his haul truck but did not know
whether it affected safety. The leaking wheel cylinder was apparently reported on his daily
inspection reports under the category "Body, Blade, Bucket (Exh. R-15).
Jaimes' supervisor, Mr. Tandoh, testified that he was aware of the oil leak of which Jaimes
was complaining but testified, without contradiction, that it was, in fact, not a safety issue and that
they maintained the appropriate level of oil on the No. 4 haul truck. Under the circumstances, I do
not find that Jaimes' complaint regarding a leaking wheel cylinder was a protected activity under the
Act.

31 FMSHRC 240

Complaint about employees acting irresponsibly

In this regard, Jaimes testified that, about a week before his accident on September 18, 2007,
he had complained to Mr. Tandoh about other employees acting irresponsibly in using cell phones
in violation of company policy and trying to race other truck drivers into line.(Tr. 42-43).
Significantly, Mr. Jaimes failed to cite this allegation in his complaint to MSHA and in his complaint
to this Commission, and, since Mr. Tandoh credibly testified that he received no such complaints
from Jaimes, I give no weight to the allegation.

Analysis
As previously noted, the mine operator may rebut a prima face case of discrimination by
showing that the adverse action, (in this case Mr. Jaimes discharge on September 19, 2007), was in
no part motivated by the protected activity. In this regard this Commission observed in Chacon v.
Phelps Dodge Corp., 3 FMSHRC 2508(November1981) that "[d]irect evidence of motivation is
rarely encountered; more typically, the only available evidence is indirect." The Commission
considered in that case the_following circumstantial indicia of discriminatory intent: knowledge of
protected activity; hostility toward protected activity; coincidence of time between the protected
activity and the adverse action; and disparate treatment.
·
Richard Stansley, president of Stansley Minerals, testified at hearings that Jaimes was
tenninated on September 19, 2007, because of his unsafe operation of the haul truck. Stansley
testified, and it is undisputed, that Jaimes was involved in three accidents prior to his discharge and
had twice before been issued verbal and written warnings(Exhibits R-1, R-2 and R-3). These
warning reports confirm the credible testimony of Jaimes' supervisor, Francis Tandoh, that Jaimes
was not competent to operate the haul truck. Tandoh opined that Jaimes was indeed a safety risk to
himself and others. I find that the asserted unprotected grounds for Mr. Jaimes discharge to be
credible and convincing and, in the absence of any evidence of hostility toward Jaimes' protected
activity or other improper motivation by Stansley Minerals, I conclude that Mr. J aimed would have,
in any event, failed to establish that his discharge was motivated in any part by his protected activity.
Even assuming, arguendo, that Jaimes' discharge was motivated in part by his protected
activity, it is clear that the operator would have successfully affirmatively defended by establishing
that the adverse action would have been taken in any event on the basis of Jaimes' unprotected
activity alone. Under all the circumstances, I conclude that Mr. Jaimes would not, in any event, have
met his burden of proving that his discharge was in violation of Section 105(c)(l) of the Act, and
his complaint must, for this additional reason, be dismissed.

31FMSHRC241

ORDER
Discrimination. complaint Docket No. LAKE 2008-486-DM is hereby dismissed.

Gary Melick
Administrative Law Judge
202-434-9977

Distribution: (Certified Mail)
Richard Jaimes, 2712 Lenawee Hills Highway, Adrian, MI 49221
Richard Stansley, Stansley Minerals Resources, 5648 N. Main Street, Sylvania, OH 43560
/lh

. 31 FMSHRC 242

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

February 4, 2009
CONTEST PROCEEDINGS

POWDER RIVER COAL, LLC.,
Contestant

Docket No. WEST 2007-898-R
Citation No. 7610571; 08/24/2007

v.
Docket No. WEST 2007-899-R
Citation No. 7610725; 08/24/2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

North Antelope Rochelle Mine
Id. No. 48-01353

CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 2008-242
A.C. No. 48-01353-130970-01

v.

Docket No. WEST 2008-243
A.C. No. 48-01353-130970-02

POWDER RIVER COAL, LLC.,
Respondent

North Antelope Rochelle Mine

DECISION
Appearances:

Karen L. Johnston, Esq., Jackson Kelly PLLC, Denver, Colorado,
for Powder River Coal, LLC;
GregoryW. Tronson, Esq., Office of the Solicitor, U.S. Department
of Labor, Denver, Colora~o, for the Secretary of Labor.

Before:

Judge Manning

These cases are before me on two notices of contest filed by Powder River Coal, LLC
("Powder River") and two petitions for assessment of civil penalty filed by the Secretary of
Labor, acting through the Mine Safety and Health Administration ("MSHA") 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"). Powder River contested eight citations in these proceedings. An
evidentiary hearing was held in Denver, Colorado. The parties introduced testimony and
documentary evidence and filed post-hearing briefs.

31 FMSHRC 243

Powder River operates the North Antelope Rochelle Mine, a large open-pit coal mine in
Campbell County, Wyoming. Just prior to the hearing, the parties agreed to settle four citations.
The Secretary agreed to vacate Citation No. 7610571. The Secretary also agreed to reduce the
gravity in Citation No. 7610570 from "fatal" to "permanently disabling" and Powder River
agreed to pay a penalty of$1,684.00. Powder River agreed to withdraw its contest of Citation
Nos. 7610731 and 7610640. Finally, Powder River agreed to the terms and conditions set forth
in paragraph 6 of the parties' motion to approve partial settlement.

I. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A. Citation No. 7610725, Testint= Conveyor Pull Cord Switches.
On August 24, 2007, Inspector Wayne Johnson issued Citation No. 7610725 under
section 104(a) of the Mine Act, alleging a violation of 30 C.F.R. § 77.502-2 as follows:

The examinations and tests required under the provision of this
section 77:502 shall be conducted at least monthly. The mine has
not examined and tested monthly pull cord inspections.
The inspector determined than an injury was unlikely but that any injury would likely be
pennanently disabling. He determined that the violation was not of a significant and substantial
nature ("S&S") and that the company's negligence was high. Section 77.502-2 provides that the
"examinations and tests" required by section 77.502 shall be conducted "at least monthly."
Section 77.502 provides, in part, that "[e]lectric equipment shall be :frequently examined, tested,·
and properly maintained by a qualified person to assure safe operating conditions." The
Secretary proposes a penalty of $643 .00 for this citation.
A pull cord switch is a shut off device used along conveyors. (Tr. 12; Exs. G-3, G-4).
The pull cords are set up along walkways next to the conveyor and they can be activated
('1Julled") in an emergency to stop the belt from running. The switch is activated by pulling the
cord. When the cord is pulled, a signal is sertt to the computer in the control room and that
section of the conveyor is instantly shut down. Other sections may also be sequentially shut
dQwn so that coal does not continue to run and spill off the belt. Inspector Johnson estimated
that there are several hundred pull cord switches in the mine. (Tr. 14).
Inspector Johnson inspected the pull cords because a miner filed a safety complaint with
MSHA. He testified that he spoke to several employees and managers regarding the allegations
of the complaint. (Tr. 15). He was told that the mine only performs a visual inspection of the
pull cord switches on the daily walk-around examinations and during the monthly electrical
inspection. Inspector Johnson testified that a :functional test must be performed in order to
determine if the activating arm on the switch is operating properly. If the activating arm is
frozen, the conveyor will not shut down when the cord is pulled. (Tr. 16-17). He spoke with

31 FMSHRC 244

Donnie Blackburn, a team leader and electrician for Powder River, and was told that the mine
never shuts down conveyors to test pull cord switches.
Inspector Johnson said that he discussed the methods of testing pull cord switches with
several other mine operators. He testified that these operators told him that they include a
monthly switch functional test in their inspection. (Tr. 19). The inspector believes that the safety
standard requires that a functional test be included as part of the monthly inspection of all
switches in the mine. He said that it is not necessary that the conveyor be running when the
functional test is conducted. The main purpose of the test would be to make sure that the
activating arms are functional and not frozen. (Tr. 21). A miner in the control room would be
able to determine if the switch has been activated for a particular belt. The company's on-shift
report recorded problems with pull cord switches, including stuck switches, that were repaired.
(Tr. 23-24; Ex. G-5). A review of the inspection books after the citation was issued indicates that
several pull cords needed to be repaired by an electrician.
The inspector determined that the violations were the result of Powder River's high
negligence because mine managers were not able to recall ever conducting a complete functional
test on the switches. (Tr.-26). In Inspector Johnson's opinion, a defective condition would not
be discovered by a visual inspection as one could not tell just by looking at the switch whether it ·
was working properly.
On cross-examination, Inspector Johnson discussed his interpretation of section 77.502.
He stated that the term "examine" in the safety standard means a visual inspection while the term
"test" means a functional test. (Tr. 34). It is his understanding that employees of Powder River
walk along the conveyor systems to look at the pull cords to ensure they are connected and to
look for visible abnormalities. This examination would include looking at both sides of the
switch to make sure all electrical components are connected. (Tr. 38).
Blackburn testified on behalf of the company. Blackburn has been employed by Powder
River for 16 years and has been the electrical team leader for one year. He is an MSHA certified
electrician. His job duties include overseeing all the electrical equipment and personnel at the pit
and the plant. (Tr. 88). Blackbum explained that the pull cord system at the mine is installed at
unguarded portions of the conveyor and is used throughout the mine. The pull cord switches are
made by different manufacturers, but they use the same general system and setup. (Tr. 91 ).
There are approximately 35,000 feet of conveyor pull cords throughout the mine. He described
the pull cord system as having two components to it: (1) the aircraft cable that runs through metal
posts mounted on the conveyor, and (2) the switch. The cables loop through the indicator arm on
the switch. (Tr. 93). He explained that the system is wired in a fail-safe manner. When a switch
is pulled a signal is sent to the computer which instantly shuts down the conveyor. There is a
redundancy built into the system.
Taking into consideration manufacturers' recommendations, the mine has the switches
placed about 185 feet apart making the total number of switches in the mine between 200 and

31 FMSHRC 245

250. (Tr. 95). Blackburn stated that the computer.system monitors the circuits so ifthe electrical
circuit in the pull cord switch fails, then the conveyors are automatically shut down and they
cannot be restarted until repairs are made. (Tr. 95).
The Conveyor Components Company is the manufacturer of the most recently installed
pull cord system. It recommends testing once installation is complete to make sure that the
switches are mounted correctly and operating properly. However, there is no recommended
testing after that point.· (Tr. 97). After the initial installation, the system was checked by
physically pulling on the cord to make sure it was operating. The cables were checked to assure
they were in place and that all parts were mounted correctly. The system was also checked by
pulling each pull cord and matching it with the computer to show that the proper switch was
tripped. Blackburn said that this test is only required when a pull cord system is first installed.
(Tr. 97). He has not performed a functional test for the purposes of complying with section
77.502-2 and has not directed anyone else to perform this test. He feels that the functional test is
unnecessary as the computer system monitors the electrical system 24 hours a day and ther~ is a
person in the control room at all times. (Tr. 98). He believes that Powder River complied with
the standard by conducting a visual inspection. The electrical team inspects the area as do the
on-shift supervisor and ori-shift technician on a daily basis. Any problems are recorded in the log
books. (Tr. 100). If there is a problem, a work order is generated and the problem is corrected.
Blackburn stated that he has never been told by an MSHA inspector that a functional test of the
pµll cord system needed to be performed on a monthly basis. (Tr. 101). He has also spoken with
other mines and they stated that they do not perform monthly functional tests. (Tr. 103).
Blackburn testified that JnspectorJohnson permitted Powder River to conduct the test
with the belts stopped as the equipment is not meant to be started so many times in a short period
of time. (Tr. 108). Inspector Johnson watched in the computer room while the cords were pulled
and saw that they were functioning properly. Blackburn does not feel that the system should be
tested on a monthly basis as it is designed to be used in emergency situations only and the life of
each switch would be shortened if it were tested monthly. (Tr. 111 ).
Michael Stephens, production manager for the plant, also testified on behalf of the
company and he reiterated much ofBlackburn's testimony. (Tr. 127-146). He has been
employed by the company for 24 years and has held his current position since February 2008.
Given the complexity of the conveyor system, he estimated that it would take at least one full.day
to test all of the pull cord switches at the mine in the manner initially required by Inspector
Johnson. (Tr. 129). After negotiation with the inspector, the conveyor system was shut down
and mine employees pulled each switch as someone made sure that a signal was being received
by the computer in the control room. (Tr. 132).
The Secretary argues that the plain language of the safety standard requires more than a
visual inspection of electrical equipment. The standard clearly provides that a "test" is required.
The pull cord switches are not tested when miners merely examine them. If a switch handle is
stuck in place, pulling on the_ cord will not activate the switch. This defect cannot always be
31 FMSHRC 246

detected by a visual inspection. She also maintains that her interpretation of the standard is
reasonable because it is consistent with the language and purpose of the standard. As such, her
interpretation is entitled to deference by the Commission.
Powder River contends that it has never been advised by MSHA, during all of the years
that the mine has been inspected, that it must physically pull each and every pull cord switch on a
monthly basis in order to comply with the safety standard. It argues that the electrical
examination standard does not apply to pull cord systems and the citation should be vacated.
Powder River also argues that its method of monitoring and inspecting the pull cord system
makes a functional test unnecessary. The electrical portion of the pull cord system is monitored
by the computer at all times, the computer control room is manned at all times, and the
mechanical portion of the pull cord system can be effectively inspected visually. The inspector
failed to recognize that the "electronics" in the pull cord system is being constantly monitored by
the computer and that the system shuts down if it is not working properly. (P.R. Br. 15). "The
pull cord system is designed to be pulled on an as-needed basis and, much like a sprinkler system
in an office building, its computer monitoring system is sufficient to advise when an electrical
problem exists." Id. The pull cord switches were not designed to be regularly pulled with the
result that repeatedly performing the test required by the inspector would shorten their lives. The
on-shift examinations performed at the mine are adequate to note any mechanical problems with
the switches.
Powder River also maintains that it was not put on notice that the cited standard requires
the operator to perform a functional test of the pull cord system on a monthly basis as part of the
electrical equipment examination. A reasonably prudent person familiar with the mining
industry and the protective purposes of the standard would not have recognized that a functional
test was required. See Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). Powder River
had never been cited for a violation of the standard because it failed to perform a functional test,
notwithstanding the fact that the conveyor system contains between 200 and 250 pull cord
switches along 35,000 feet of cord. MSHA inspectors have also regularly reviewed the
company's record of electrical examinations. Blackburn also testified that he talked to other coal
mine operators in Wyoming's Powder River Basin and was advised that these mines also have
not been required to perform functional tests on pull cord switches. Finally, Powder River
contends that the placement of the safety standard within the standards for electrical equipment
indicates that section 77.404 is concerned with electrical issues rather than mechanical problems
with a switch.
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 (Oct. 1989) (citations omitted); Consolidation Coal Co., 15 FMSHRC 1555, 1557
(Aug. 1993). In the absence of a regulatory definition or technical usage of a word, the
Commission would normally apply the ordinary meaning of the word. See Bluestone Coal Corp.,
31FMSHRC247

19 FMSHRC 1025, 1029 (June 1997); Peabody Coal Co., 18 FMSHRC 686, 690(May1996),
affd, 111F.3d963 {D.C. Cir. 1997) (table).
If, however, a standard is ambiguous, courts have deferred to the Secretary's reasonable
interpretation of the regulation. See Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463
(O.C. Cir. 1994); accord Sec'y ofLabor v. Western Fuels-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 & Sand Co., 325 U.S. 410,
414 {1945) (other citations omitted)). The Secretary's interpretation of a regulation is reasonable
where it is "logically consistent with the language of the regulation[] and ... serves a permissible
regulatory function." General Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) {citation
omitted).

The safety standard provides that "[e]lectric equipment shall be .frequently examined,
tested, and properly maintained by a qualified person to assure safe operating conditions." The
Secretary's regulations do not define the term "electric equipment" and they do not indicate what
is meant by "examined, testecl, and properly maintained." As a consequence, I find that the ·
safety standard is not clear on its face. It is particularly ambiguous when applied to pull cord
switches along conveyor systems.
The next issue is whether the Secretary's interpretation of the safety standard is
reasonable. As stated above, the Secretary's interpretation is reasonable if it is logically
consistent with the language of the regulation and serves a permissible regulatory function. The
Secretary interpreted this safety standard in her Program Policy Manual as follows:
For purposes of this section, "electric equipment" shall include.all
control circuits, coiltrol switches or devices, circt,rit breakers, fuses,
conduits, wiring, motors, transformers, lighting equipment, handheld tools such as drills, wrenches, and saws, etc. The tests,
examinations, and proper maintenance required by this section
shall include all items mentioned above and all other such
equipment at the mine.
(V MSHA, U.S. Dep't of Labor, Program Policy Manual, Part 77) (PPM). This interpretation is

consistent with the position the Secretary took at the hearing in that "control circuits" and
"control switches" are included in the definition in the PPM. I find that the Secretary's decision
to include "switches" in the definition of electric equipment in the PPM is reasonable and
consistent with the language of the safety standard. See, U.S. Steel Mining Co.,. Inc., 15
FMSHRC 1541, 1543-44 (Aug. 1993). As a consequence, I also find that the subject pull
switches are covered by the safety standard.
The Secretary's PPM does not provide any guidance with respect to the phrase
"examined, tested, and properly maintained" used in the safety standard. In the present citation,
31 FMSHRC 248

there is no allegation that the switches were not properly maintained. The term "examine" is
defined as "to closely inspect, to test the condition of' and the term "test" is defined as "a critical
examination, observation, or evaluation." (http://www.merriam-webster.com/dictionary). By
themselves, these definitions do not provide much guidance.
The.preponderance of the evidence clearly shows that the pull switches were inspected on
a daily and monthly basis by various people. Every day, the on-shift supervisor inspects the pull
cord system and an on-"shift plant technician performs a safety check. {Tr. 98-99, 135-38, 14044). These inspections include a visual examination of the cable, cable attachments, and the
mechanical parts of the switch. The tension on the cable tension is checked and adjusted as
necessary. The electrical department also performs a visual inspection of the system on a
monthly basis and documents these inspections in the electrical exam log book, as required by
the safety standard. (Tr. 99-100, 136). This inspection makes sure that the pull cable is properly
supported and tight, the electrical connectors going into and out of the electrical switches are
properly secured, the covers on the switches are secured, and that all components are properly
mounted. (Tr. 105-06). In addition, the electrical components in the pull cord system are
continuously monitored by the computer system for the conveyors. If the electrical circuit for a
pull cord switch fails for any reason, the conveyor belt automatically shuts down and cannot be
restarted until the problem is corrected. (Tr. 93-96, 106-07, 130, 144-45). Each pull cord switch
is enclosed in a sealed box so the switch itself cannot be physically examined, but the electrical
system is being monitored by the computer at all times and an employee is in the control room at
all times.

It is not clear that Inspector Johnson was aware that the electrical components are
continuously monitored by the computer system. Nevertheless, the Secretary takes the position
that each switch must be pulled into an open position to see if such action registers on the
computer. She argues that the standard requires Powder River to test all 200 plus pull cord
switches in this manner on a monthly basis and record the results in the electrical examination
book. The Secretary argues that without a functional test, there is no way for the operator to
determine if the activating arm for a switch is frozen in place, which would prevent the conveyor
from shutting down during an emergency. (Tr. 17, 24). Inspector Johnson testified that he has
observed activating arms that do not function because they are stuck and Will not move when the
pull cord is yanked. 1 (Tr. 40-41). Stephens and Blackburn acknowledged that the computer
monitoring system will not detect a stuck activating arm and that a visual inspection will also not
indicate if an arm is stuck. (Tr. 121, 139, 156).
I find that the Secretary's interpretation of section 77.512 requiring a monthly functional
test is reasonable in this instance. Powder River "closely inspects" the pull switches on at least a

1

Inspector Johnson also argued that a functional test is required because, during a
previous inspection of the mine, a pull cord came completely out of its attachment point when
pulled. (Tr. 26). A competent visual inspection and examination would be able to detect such a
defect in the pull cord system.
31 FMSHRC 249

monthly basis. By monitoring the electrical components, the mine's computer system "tests the
condition of' the pull cord switches on a continual basis. Taken together, the daily inspections,
monthly electrical inspections, and the computer monitoring system constitute a "critical
examination, observation, and evaluation" of the pull cord switches. As a consequence, these
switches were "frequently examined, tested and properly maintained by a qualified person to
ru;sure safe operating conditions," except that the activating arms were never tested to make sure
they were not stuck in place. The Secretary established that requiring the mine operator to
examine and test the pull cord switches to ensure that the activating arms work "serves a
permissible regulatory function" and is consistent with the purposes of the Mine Act. I need to
point out, however, that Powder River may be able to determine whether the activating arms are
frozen in place without having to shut down the conveyor system or perform the test in the exact
manner required by Inspector Johnson.
Powder River also argues that it did not have adequate notice that the safety standard
required it to perform a functional test of the pull cord system on a monthly basis as part of the
electrical equipment examination. 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 Gen. Elec., 53 F.3d at 1333-34; Phelps
Dodge Corp. v. FMSHRC, 681F.2d1189, 1193 (9th Cir. 1982); Phelps Dodge Tyrone, Inc., 30
FMSHRC 646, 656 (Aug. 2008).

. 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 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).

31 FMSHRC 250

In Alan Lee Good d/b/a Good Construction, 23 FMSHRC 995 (Sept. 2001) ("Good
Construction"), the opinion of Commissioners Jordan and Beatty included the following
analysis:
In applying the reasonably prudent person standard to a
notice question, the Commission has taken into account a wide
variety of factors, including the text of a regulation, its placement
in the overall enforcement scheme, its regulatory history, the
consistency of the agency's enforcement, and whether MSHA has
published notices informing the regulated community with
"ascertainable certainty" of its interpretation of the standard in
question. Also relevant is the testimony of the inspector and the
operator's employees as to whether the practices affected safety.
Finally, we have looked to accepted safety standards in the field,
considerations unique to the mining industry, and the
circumstances at the operator's mine.
23 FMSHRC 1005 (citations and footnote omitted).
To support its argument, Powder River relies on the fact that it had never been cited for
not conducting a functional test. The North Antelope Rochelle Mine is one of the largest surface
coal mines in the United States and it has an extremely large conveyor system. MSHA has a
field office in Gillette and the mine has been inspected by MSHA on a regular basis. MSHA
inspectors regularly inspected the conveyor system and reviewed Powder River's electrical
examination records. Nevertheless, no MSHA official has ever mentioned that the mine was
required to pull every pull cord switch in the mine as part of its monthly examination of electrical
equipment. After it received this citation, Blackbum contacted electrical supervisors at several
large coal mines in Wyoming's Powder River Basin. He talked to electrical supervisors at
Peabody Energy's Rawhide and Caballo mines, Big Sky Energy's mine, Thunder Basin's Black
Thunder Mine, and Rio Tinto Energy's mine. (Tr. 102-03). These electrical supervisors are
responsible for overseeing compliance with MSHA's electrical standards and would have
knowledge of electrical examination practices used at their respective mines. (Tr. 103). These
individuals advised Blackbum that they did not perform functional tests of the pull cord switches
as part of their monthly electrical examinations and that MSHA had never advised them that they
were required to do so. Powder River also relies on the placement of the standard in the
regulations dealing with electrical issues. The functional test required by Inspector Johnson is
really designed to address mechanical rather than electrical problems with the pull cord switches.
Finally, Powder River points out that MSHA has not issued any interpretive material that would
provide notice to the regulated community that functional tests of pull cord switches is required
under the safety standard.
I vacate this citation because the Secretary failed to provide fair notice of the ·
requirements of this standard with respect to pull cord switches. Although the Secretary's broad

31FMSHRC251

interpretation of the standard is reasonable, she failed to give adequate notice that each pull cord
must be pulled on the monthly basis to make sure that each switch is functioning properly and is
not stuck in position. A reasonably prudent person familiar with the mining industry and the
protective purposes of the standard would not necessarily recognize that this functional test was
required, given the visual inspections that were performed and the computerized electrical
monitoring system that was in use at the mine. ·The text of the safety standard is broadly written
and does not describe what testing is required in this context. The agency's PPM does not
provide any guidance on this issue and the Secretary has not issued any other interpretive
materials. Powder River has been mining atthis location since the mid-1980s and MSHA has
never advised the company that the safety standard requires a functional test of each pull switch.
In addition, it appears that other mines in the area have likewise not been required to perform
such tests. It appears that the Secretary has not consistently interpreted this safety standard to
require a functional test of each and every pull cord switch at coal mines in the United States on a
monthly basis.2 Consequently, this citation is vacated.

B. Citation No. 7610727, Accumulation of Coal at the Top ofa Silo.
On August 26, 2007, Inspector Wayne Johnson issued Citation No. 7610727 under
section 104(a) of the Mine Act, alleging a violation of 30 C.F.R. § 77.1104 as follows:
Combustible materials (coal.fines and chunks) were allowed to
accumulate where they can create a fire hazard on the S-3 belt on
the West sample system, on top of silo 3. Two sets oftroughing
idlers were observed turning in coal. Accumulations were
measured from under the rollers up to 8 inches deep for the length
of two feet along the rollers. The coal was within 3 feet of the tail
pulley and dry.to the touch. The examinations and tests required
under the provision of this section 77.502 shall be conducted at
least monthly. .The mine has not examined and tested monthly pull
cord inspections.
The inspector determined than an injury was reasonably likely and that any injury would
likely be permanently disabling. He determined that the violation was S&S and that the
company's negligence was moderate. The safety standard provides that "[c ]ombustible materials
... shall not be allowed to accumulate where they can create a fire hazard." The Secretary
proposes a penalty of $1, 795. 00 for this citation.

2

Inspector Johnson testified that he is aware of other coal mines that perform functional
tests on pull cord switches on a monthly basis, but his testimony was rather vague. (Tr. 19, 4244). Nevertheless, even if some mines perform a functional test, it is clear that MSHA's
interpretation of the standard has been neither clear nor consistent.
31 FMSHRC 252

fuspector Johnson observed coal eight inches deep for a length of two feet along the
rollers under a sample system belt within three feet of the tail pulley. The accumulation was dry
to the touch; and posed a fire and/or smoke inhalation hazard. (Tr. 28). The coal was located on
top of the silos in an enclosed building. The conveyor was running at the time and the rollers
were turning in the coal. This violation was designated as S&S as the inspector felt it was
reasonably likely that the condition would contribute to a hazard where there is foreseeable
potential for illness or injury if not corrected. Inspector Johnson was particularly concerned
about a smoke inhalation hazard that could occur due to the equipment turning in the coal.
After the condition was discovered, Inspector Johnson spoke with Lynn Snyder, step-up
supervisor, and he learned that the accumulation was present for at least three hours. He also
learned from miners that they wash down the facilities every three hours. {Tr. 29). To terminate
the citation, the company washed off the accumulation. (Tr. 31 ).
Michael Stephens, who was the production manager for the plant, testified on behalf of
the company. He stated that the accumulation cited was located at the S3 belt which is the last
belt in the system where a sample is taken. (Tr. 147). Before reaching this point, the coal went
through a hammer mill where it was crushed to eight mesh making it between 85 and 95 percent
eight mesh. Eight mesh coal is similar to the size of coffee grounds. Stephens would not
characterize it as coal dust but it was similar to coal fines. He explained that generally eight
mesh coal is less combustible than coal dust. (Tr. 148). ·He did not feel the citation was
warranted as there was no heat source present. The citation alleged there were idlers present.
Idlers are rollers with bearings that support the moving belt in a V position to keep the coal in the
center of the belt. The belt moves at a rate of about 17 feet per minute making it a slow-moving
belt. (Tr. 149). ·He stated that when the belt comes into contact with the idlers there is little
friction created and.little heat generated. He does not believe it would be enough to ignite the
coal fines.
Several employees continuously wash down the three floors of the silo. These employees
start at the top and work their way down to the bottom and then start over again. (Tr. 152). The
cleanup cycle takes about three hours. The inspector testified that the employees had started
cleaning the top level again when he issued the citation (Tr. 52).
The Secretary argues that she is only required to establish that there were sufficient
accumulations present to create a fire hazard or add to a fire hazard if an ignition source were to
be introduced. Here the accumulation was substantial and was near the tail pulley. The
accumulation had existed for several hours and was at least partially dry. Finally, the idler rollers
were turning in the accumulation, which had the potential to heat the coal dust to the ignition
point.
Powder River maintains that the plain language of the standard provides that an
accumulation is permitted, at least for short periods of time, as long as a fire hazard is not
created. Where the Secretary is unable to establish an ignition source, there is no violation of the

31 FMSHRC 253

standard. In this instance there was no ignition source in the area. The turning idlers were not an
ignition source because the belt moved so slowly thatheat would not be created. There were no
other ignition sources in the area. The accumulation did not create a fire hazard. In addition, the
spill was partially wet and no coal dust or float coal dust was present.
I find that the Secretary established a violation of section 77 .1104. The Secretary is not
required to show that an ignition or explosion was reasonably likely to occur. Pittsburg &
Midway Coal Mining Co., 15 FMSHRC 2250 (Nov.1993). She is only required to show that it
is possible that the accumulation would create a fire. The phrase "create a fire" in the standard is
best interpreted broadly because, otherwise, the Secretary will never be able to establish a
violation. I find that at least one ignition source was present and it was possible that the presence
of the accumulation could create conditions in which a fire could be propagated. The term "fire"
may include the smouldering of coal fines where flames are not present. See Phelps Dodge.
Tyrone, Inc., 30 FMSHRC 646, 657, 663-64 (Aug. 2008). Although it was not reasonably likely,
it was possible that the turning rollers could generate enough heat to start a fire.
I find, however, that the Secretary did not establish that the violation was S&S. A
violation is classified as S-&S "if based upon the facts surr()unding the violation, there exists a
reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature." National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). ht
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out a four-part test for
analyzing S&S issues. Evaluation of the criteria is made assuming "continued normal mining
operations." U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). The question of
whether a particular violation is S&S must be based on the particular facts surrounding the
violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988). The Secretary must establish: (1) the
underlying violation of the safety standard; (2) a discrete safety hazard, a measure of danger to
safety, contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to
wHI result in an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature. The Secretary is not required to show that it is more probable than not
that an injury will result from the violation. U.S. Steel Mining Co.; 18 FMSHRC 862, 865 (June
1996). Although the Secretary established the first two elements, I find that the third and fourth
elements of the Mathies test was not present in the case. Consequently, I modify the citation to
delete the S&S determination.
I also find that Powder River's negligence was low. The company had an established
cleanup program and the cited accumulations would have been removed shortly after the
inspector observed them. The accumulations had existed for less that three hours and the hazard
created was not very great. Consequently, I reduce the level of negligence attributed to Powder
River. A penalty of $300.00 is appropriate for this violation.

31 FMSHRC 254

C. Citation No. 7610574, Welding Operations That Were Not Shielded.

On August 29, 2007, Inspector Todd Jaqua issued Citation No. 7610574 under section
104(a) of the Mine Act, alleging a violation of 30 C.F.R. § 77.408 as follows:
Welding operations were not shielded to prevent injuries to the
eyes to four persons working within ten feet of this operation in
progress. The operations were to be performed for a full shift of
ten hours. This poses burn type injuries to the eyes from flash
and/or arc exposure.
The inspector determined than an injury was unlikely but that any injury would likely be
permanently disabling. He determined that the violation was not S&S and that the company's
negligence was moderate. The safety standard provides that "(w ]elding operations shall be
shielded and the area shall be well-ventilated." The Secretary proposes a penalty of $138.00 for
this citation.
Inspector Jaqua saw that welding operations were occurring as he and Inspector Scott
Markve were driving to the mine office. The inspectors stopped their vehicle to inspect the
welding operation because they did not see welding shields in place between the welder and
·.other people in the area. The welder was using a welding stand to cut support for cable struts for
a new conveyor. (Tr. 60). The welding work was being performed by an independent
contractor. In addition to the welder, two contractor employees were standing about 10 to 20 feet
from the welding operations. (Tr. 62). In addition, two Powder River employees were about 50
feet away, over near the conveyor that was under construction. Inspector Jaqua found out from
Scott Markve that the Powder River employees were there to instruct the contractors where to
place the brackets on the conveyor. The conveyor was part of a new loadout facility that was
being constructed.
After observing the welding operations, Inspector Jaqua questioned the welder as to
whether he was aware that he was required to have a shield between him and the other people.
(Tr. 63). The welder nodded indicating that he was aware and pointed the inspector in the
direction of his supervisor.
Welding without a shield presents a hazard associated with flash burns to the eyes.
Inspector Jaqua explained that the person doesn't even have to look directly into the welding
operations or the flash arcs to be affected by the reflection. He felt that it would have been
possible to have shields in the area as they are easy to install. (Tr. 66). Inspector Jaqua issued a
citation to Powder River and to the independent contractor who was doing the fabricating work
on the conveyor.
Dave Hendricks, plant maintenance supervisor, testified on behalf of the company. He
has been employed by the company for 22 years and has held his current job for 12 years. He

31 FMSHRC 255

stated that the welding was being performed by CCC Group which is a construction company
that was installing the conveyor system. (Tr. 176). The welding was being performed in the
southwest lay-down yard which is an area where all the pan sections, idlers, and iron were being
stored for the new conveyor system. This area is not in an enclosed building, but rather out in the
open. (Tr. 177). This area is not regularly used by Powder River employees, but the CCC
contractors have done some work there.
Hendricks and Kevin Johnson, an electrical technician, went out to the southwest laydown area around 8:00 a.m. on August 29, 2007, to take a look at the pan section and to
determine where to run the electrical cable. (Tr. 177-178). They did not see the CCC Group
employees welding at any time while they were in the area. (Tr. 180). Hendricks estimated that
the end of the pan was about ten feet away from the CCC Group employees and the welding table
was an additional ten feet away. (Tr. 184). Hendricks and Johnson were preparing to leave the
area when two MSHA inspectors pulled up. Johnson·and Hendricks were not supervising the
CCC Group workers on that day and stated that CCC Group management was responsible for
their work. Hendricks stated that he was not exposed to any potential hazards such as flash burns
because welding was not being performed while he was present. (Tr. 186). Hendricks also
explained that welding could bave begun as he andJohnson were walking back to the truck but
the conveyor pan would have been blocking their view so they would not have been exposed to
any hazard. The violation was abated when the CCC Group employees put shields up without
·help from Powder River employees. (Tr. 187).
The Secretary argues that the safety standard is clear on its face when it states that
welding operations shall be shielded. There are no exceptions to this requirement. Inspector
Jaqua observed the welding and testified that there were people within 20 feet who were
providing assistance to the welder. The welder told Jaqua that he was working a 10-hour shift
and that he would be welding during that shift. Two Powder River employees were within 50
feet of the welding operation. The Secretary also argues that it was appropriate for Inspector
Jaqua to cite Powder River for the violation. Powder River employees were in the area and these
employees were management officials. One of them was the plant maintenance supervisor.
Hendricks testified that, although he did not see any welding flashes, it looked like the CCC
Groups employees were getting ready to weld and he did not see any shields. Hendricks should
have advised the CCC Group employees that a welding shield is required. As a consequence, he
contributed to the violation.
Powder River maintains that the lay.,..down yard is not an area where Powder River
employees work on a regular basis. The area is a storage yard and an area where CCC Group
occasionally works. When Hendricks and Johnson traveled to the area they walked around the
pan section of the conveyor. ·Their position in relation to the welding work is illustrated on Ex.
R~5. They did not observe any welding while they were in the vicinity of the CCC Group
employees. They were near Hendricks' pickup truck when the MSHA inspectors arrived.
Powder River argues that under the facts presented in this instance it was not appropriate for the
Secretary to issue a citation to Powder River under her guidelines in her Program Policy Manual
31 FMSHRC 256

(IIIPPMPart 45-1). Powder River's employees were not exposed to the hazard and Powder
River did not contribute to the existence of the hazard. It is clear that neither Hendricks nor
Johnson observed any welding occurring while they were in the area. In addition, they were not
exposed to the hazard and they did not contribute to the hazard.
I find that the Secretary established a violation and that it was appropriate for the
Secretary to cite Powder River as well as CCC Group for the violation. I have no difficulty
finding that a shield was required under the safety standard. l note that the Secretary has broad
"discretionary authority to cite the owner operator, the independent contractor, or both for
contractor violations." Sec'y ofLabor v. Twentymile Coal Co., 456 F.3d 151, 152 (D.C. Cir.
2006). The guidelines set forth by the Secretary in the PPM are not binding on the agency.
Brock v. Cathedral Bluffe Shale Oil Co., 796 F.2d 533, 538 (D.C. Cir. 1986). As a consequence,
I examine the Secretary's decision to cite Powder River using an abuse of discretion standard.
As stated above, the Secretary contends that Powder River violated two of the guidelines because
its employees were exposed to the potential hazard and Hendricks contributed to the violation by
failing to make sure that the welding operations were shielded. I find that the Secretary did not
abuse her discretion when she determined that Powder River should also be cited for the
violative condition.
The Secretary determined that it was unlikely that an employee of Powder River would be
injured by the violation. The two Powder River employees were to be in the lay-down area for a
short period of time and they were not directly involved in the fabricating activities. As a
consequence, I find that Powder River's negligence should be reduced slightly. ·A penalty of
$130.00 is appropriate for this violation.
·

D. Citation No. 7610576, Frayed Cable on Back of a Haul Truck.
On August 29, 2007, Inspector Todd Jaqua issued Citation No. 7610576 under section
104(a) of the Mine Act, alleging a violation of 30 C.F.R. § 77.210(a) as follows:
Hitches and slings used to hoist materials [were] not suitable for
handling the types of materials being hoisted on the Caterpillar 793
haul truck. The two inch safety bed cable attached to the rear of
the box was severely frayed at the cast eyelet. The truck was
located in camp #4 fuel station.
The inspector determined than an injury was unlikely but that any injury would likely be
fatal. He determined that the violation was not S&S and that the company's negligence was
moderate. The safety standard provides that "[h]itches and slings used to hoist materials shall be
suitable for handling the type of materials being hoisted." The Secretary proposes a penalty of
$425.00 for this citation.

31 FMSHRC 257

During his inspection, Inspector Jaqua observed a Caterpillar 793 haul truck located at the
Camp Four fuel station with a frayed cable attached to the box of the truck. The cable was
present so that the dump box could be secured when in a raised position in the event the
hydraulics failed during repairs. When attached between the box and the frame of the truck, the
c;;ible would prevent the box from falling. (Tr. 68). The truck was not tagged out for repair. The
cable was severely frayed.
Dave Wickett, safety supervisor, testified on behalf of the company. At the time of the
inspection, the haul truck was not under repair and was not being used in a way that the cable
would be needed. (Tr. 167). Instead, the truck was hauling dirt when the inspector asked to
inspect the truck. The safety cable is never used while the haul truck is in production and it does
not have anything to do with the operation of the equipment. Indeed, the driver of the haul truck
would have no way to get to the cable because it is too high off the ground. A maintenance
employee would inspect the cable before using it during repairs at the shop. This policy is in the
company's safety handbook. (Ex. R-4). The cable would never· be used to support the dump box
in the field. (Tr. 169). Because the cable serves no function while the truck is in production,
company policy now provides that the cable be removed at the shop once all repairs are
completed.
I vacate this citation for two reasons. First, the cable was not a "hitch or sling used to
hoist materials." It was a safety device used at the shop when the dump box needed to be in.a
raised position during repairs. This safety device secures the dump box so that it does not fall in
the event the hydraulic system and other safety devices fail while the box is raised during repairs.
There is no evidence that the cable was ever used to hoist materials. Second, there is no evidence
that the cable was used as a safety device while it was in the condition observed by the inspector
or that it would ever be used in that condition. Mr. Wickett credibly testified that the cable is
now removed from the back of the dump box before the truck leaves the shop because the
movement of the truck causes the cable to bang against the truck thereby damaging it. This
banging action may have frayed the cable in this instance. I credit Wickett's testimony that the
mechanics in the shop would have used a different cable if the dump box needed to be kept in a
raised position during repairs. This citation is vacated.

II. APPROPRIATE CIVIL PENALTIES
Section l lO(i) of the Mine Act sets forth six criteria to be considered in determining
appropriate civil penalties. Powder River is a large mine operator and its parent company
(Peabody Energy) is also large. The record shows that the North Antelope Rochelle Mine was
issued about 35 citations and orders in the 24 months prior to late August 2007. (Exhibit A to
Petition for Penalty). The citations at issue in this case were rapidly abated in good faith. The
penalties assessed in this decision will not have an adverse effect on the operator's ability to
continue in business. My gravity and negligence findings are set forth above. Based on the
penalty criteria, I find that the penalties set forth below are appropriate.

31 FMSHRC 258

III. ORDER
Based on the criteria in section 1 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

WEST 2007-898-R, WEST 2007-899-R, WEST 2008-242
7610570
7610571
7610725
7610727
7610731

77.205(b)
77.516
77.502-2
77.1104
77.1104

$1,684.00
Vacated
Vacated
300.00
362.00

77.1110
77.408
77.210(a)

$127.00
130.00
Vacated

TOTAL PENALTY

$2,603.00

WEST 2008-243
7610640
7610574
7610576

For the reasons set forth above, the citations are AFF1RMED, MODIFIED, or
VACATED, as set forth above and Powder River Coal, LLC, is ORDERED TO PAY the
Secretary of Labor the sum of$2,603.00 within 30 days of the date of this decision. 3

Richard W. Manning
A~inistrative Law Judge

3

Payment should be sent to the Mine Safety and Health Administration, U.S.
Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
31FMSHRC259

Distribution:

GregoryW. Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202 (Certified Mail)
Karen Johnston, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 802021958 (Certified Mail) ·

RWM

31 FMSHRC 260

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

February 11, 2009
CNIL PENALTY PROCEEDINGS

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

Docket No. WEST 2008-124
A.C. No. 48-01353-127627-01 B96

v.

Docket No. WEST 2008-125
A.C. No. 48-01353-127627-02 B96

CCC GROUP, INC.,
Respondent

North. Antelope Rochelle Mine

DECISION
Appearances:

GregoryW. Tronson, Esq., Office of the Solicitor, U.S. Department
of Labor, Denver, Colorado, for the Secretary of Labor;
Gary Klatt, Safety Manager, CCC Group, Inc., San Antonio,
Texas, 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
CCC Group, Inc., 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"). A hearing was held in Denver, Colorado and
the parties introduced testimony and documentary evidence.
Powder River Coal, LLC, operates the North Antelope Rochelle Mine, a large open-pit
coal mine in Campbell County, Wyoming. CCC Group was an independent contractor
performing services at the mine.

I. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A. Citation No. 7610573, Weldine Operations at Lay-Down Area.
On August 29, 2007, Inspector Todd Jaqua issued Citation No. 7610573 under section
104(a) of the Mine Act, alleging a violation of 30 C.F.R. § 77.408 as follows:
Welding operations were not shielded to prevent injuries to the
eyes to four persons working within ten feet of this operation in
progress. The operations were to be performed for a full shift of
31FMSHRC261

ten hours. This poses burn type injuries to the eyes from flash
and/or arc exposure. All welding operations are stopped until
shields are put in place to protect persons from contact.
The inspector determined than an injury was highly likely and that any injury would likely
be permanently disabling. He determined that the violation was of a significant and substantial
nature (S&S) and that the company's negligence was high. The safety standard provides that
"[w]elding operations shall be shielded and the area shall be well-ventilated." The Secretary
proposes a penalty of $25,163.00 for this citation,
Inspector Jaqua saw that welding was occurring soon after he and Inspector Scott Markve
entered the mine property. The inspectors stopped their vehicle to inspect the welding operation
because they could not see a welding shield in place between the welder and other people in the
area. The welding was taking place outside in the lay-down area. There was a conveyor on the
ground nearby that was to be included in a new coal loadout facility. There were five people in
the area including three CCC Group employees and two Powder River Coal employees. Two
CCC Group employees were standing at a vise about 10 feet from another CCC Group employee
who was welding. The employees at the vise were cutting channel iron with an electric band saw
and the welder was then fabricating brackets out of the cut iron. (Tr. 11). Inspector Jaqua
testified that the CCC Group employees were fabricating cable support trays and attaching them
to the adjacent conveyor, which was about 20 to 30 feet away. There was a pile of channel iron
near the band saw. Apparently the two Powder River Coal employees were present to determine
where the brackets being fabricated should be attached to the conveyor.
Jaqua testified that the safety standard required an opaque shield be placed between the
welder and the other two CCC Group employees. The shield could be made out of any kind -of
material, including plywood or a canvas tarp. The shield must be present to prevent employees
from being exposed to the arc and flash of the welding unit. Arcs and flashes from welders can
cause serious eye damage. Safety glasses do not protect employees from this hazard.
Inspector Jaqua determined that the violation was S&S because he believed that it was
highly likely that someone would be seriously injured by the hazard. Based on discussions he
had with the employee doing the welding, Jaqua determined that the CCC Group employees
would have been exposed to the hazard for the entire 10-hour shift. (Tr. 23-24). He also
determined that these employees would be working close by the welder during the shift. As a
consequence, Jaqua testified that "there was no doubt in my mind whatsoever that there would
have been damage to the eyes of both of the persons that were ... working in that area .... " (Tr.
24). Inspector Markve testified that the citation was S&S because an eye injury was reasonably
likely to occur given how close the other employees were to the welding operation. (Tr. 49).
Inspector Jaqua determined that the negligence of CCC Group was high based on a
conversation he had with Jody Kaylor, CCC Group's supervisor at the site. Jaqua testified that
Kaylor told him that the employee performing the welding had been trained and he was or should

31 FMSHRC 262

have been aware that a shield was required. (Tr. 18, 25). Jaqua believed that Kaylor did not take
the steps necessary to make sure that the work area was safe for welding. Because it was a clear
violation of the safety standard, Kaylor should have been aware that a shield was required and he
should have made sure that a shield was in place before work began.
CCC Group argues that the standard is quite vague as to when a shield is required. It also
argues that its employees would not be exposed to the welding operations the entire 10-hour shift
because· as the parts were fabricated, the employees would be attaching the parts to the conveyor
structure. As a consequence, its employees would not be looking at the arc for any length of
time, if at all. Ronald Segura, a site safety supervisor for CCC Group, testified that CCC
Group's employees would only have been near the welding for short periods of time. (Tr. 81).
They were not going to be working "side by side within ten feet" of the welder. Id.
I find that the Secretary established a violation. The safety standard is broadly written to
cover a wide variety of situations. It requires shielding in all situations. See Consolidation Coal
Co., 10 FMSHRC 1702, 1703 (Dec. 1988)(ALJ). Its application is not limited to indoor welding
operations. CCC Group argues that the standard is too vague to be meaningful to mine operators.
It points out that if welding were occurring a quarter of a mile away, the literal language of the
safety standard would still require a screen and that cannot be the intent of the safety standard.
The standard for metal/nonmetal mines provides more clarity because it states that "[w ]elding
operations shall be shielded at locations where arc flash could be hazardous to persons."
(§ 56/57.14213). I agree that section 77.408 could be applied to situations where a serious
hazard is not created, but that is not the case here. Indeed, the conditions observed by Inspector
Jaqua would easily violate the metal/nonmetal standard if it were applicable to coal mines.
I recognize that the two other CCC Group employees were not going to be standing right
next to the welder the entire shift. They were going to be walking around, taking fabricated
components to the conveyor that was being assembled, and walking back to the vise to cut more
iron. I agree with Inspector Jaqua that such a situation would seriously expose the miners to the
hazards of the welding arc. (Tr. 31-32). There was nothing present to shield the miners from the
arc produced by the welder. ·
I also find that the Secretary established that the violation was S&S. A violation is
classified as S&S "if based upon the facts surrounding the violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious
nature." National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6
FMSHRC 1, 3-4 (January 1984), the Commission set out a four-part test for analyzing S&S
issues. Evaluation of the criteria is made assuming "continued normal mining operations." U.S.
Steel Mining Co., 6 FMSHRC 1573, 1574(July1984). The question of whether a particular
violation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc.,
10 FMSHRC 498 (April 1988). The Secretary must establish: (1) the underlying violation of the
safety standard; (2) a discrete safety hazard, 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

31 FMSHRC 263

(4) a reasonable likelihood that the injury in question will be of a reasonably serious nature. The
Secretary is not required to show that it is more probable than not that an injury will result from
the violation . .U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996).

Although welding would not be performed continually for the entire ten-hour shift,
welding would be occurring for a significant length of time. In addition, miners would be
moving around in the vicinity of the welding operations. As a consequence, the eyes of the
miners would be exposed to the hazard presented by the arc of the welder. I credit the testimony
of Inspector Jaqua with respect to the serious hazard presented when the eyes of miners are
exposed to the flash arc of welding. Retina damage can occur when people are exposed to
welding arcs. (Tr. 44). Given these facts, I.find that the Secretary established all four elements
of the Mathies S&S test. There was a reasonable likelihood that someone would suffer an injury
of a reasonably serious nature. I recognize that if the miners working around the welder
studiously avoided looking at the flash arc, the likelihood that they would suffer retina damage
would be reduced. (Tr. 43). Nevertheless, this safety standard was promulgated so that miners
would not be exposed to the hazards associated with welding. The Secretaryis not required to ·
show that it was more probable than not that someone's eyes would be damaged that day.
The Commission and the courts have uniformly held that mine operators are strictly liable
for violations of safety and health standards. See, e.g. Asarco v. FMSHRC, 868 F.2d 1195 (10th
Cir. 1989). "[W]hen a violation of a mandatory safety standard occurs in a mine, the operator is
automatically assessed a civil penalty." Id. at 1197. The negligence of the operator and the
degree of the hazard created by the violation are taken into consideration in assessing a civil
penalty under section 1 lO(i) ... 30 U.S.C. § 820(i). This legal standard also applies to independent
contractors performing services at a mine. Inspector Jaqua based his high negligence
determination.on the fact that the CCC Group supervisor did not specifically.tell the welder to
put up a screen before be started working. Jaqua determined that the supervisor's attitude was·
rather cavalier because he relied on the welder to perform his job in a safe manner. The
supervisor told Jaqua that the miner~ were trained on safe welding procedures. I find that the
company's negligence was moderate. ·There has been no showing that CCC Group did not
adequately train its welders on safe welding procedures. In addition, the welding was being
performed outside where the need for a shield would not be as obvious. Moreover, Mr. Kaylor
was not in the area when the welding started. The evidence in the record does not support a high
negligence finding.
The penalty proposed by the Secretary is much too high for this violation, especially since
I have reduced thelevel of negligence attributable to the company. Taking into consideration the
penalty criteria set forth in the Mine Act, I find that a penalty of $8,000.00 is appropriate for this
violation.

31 FMSHRC 264

B. Citation No. 7610642, Weldin& Operations at Loadout Construction Area.
On August 29, 2007, Inspector Scott Markve issued Citation No. 7610642 under section
104(a) of the Mine Act, alleging a violation of 30 C.F.R. § 77.408 as follows:
Welding operations were not shielded on the blending load out
construction area located at the northwest comer of the building. A
welder was welding on the staircase from the second level to the
third level.
The inspector determined than an injury was unlikely but that any injury would likely
result in lost workdays or restricted duty. He determined that the violation was not S&S and that
the company's negligence was moderate. The Secretary proposes a penalty of $425.00 for this
citation.
CCC Group stated at the hearing that it was withdrawing its contest of this citation. (Tr.
79). CCC Group's representative stated that the company has paid the Secretary's proposed
penalty of$425.00. Id. The records on the data retrieval system at MSHA's website indicates
that this penalty has not been paid. Consequently, I have intluded the penalty in the total due at
the bottom of this decision. CCC Group is not required to pay the penalty twice so it should
double check its records and contact MSHA if it has any questions.

C. Citation No. 7610643, Overhead Work at Loadout Construction Area.
On August 29, 2007, Inspector Scott Markve issued Citation No. 7610643 under section
104(a) of the Mine Act, alleging a violation of 30 C.F.R. § 77.203 as follows:
Adequate protection was not provided for three miners working
below the overhead work area above them. A miner was using a
sledge hammer while setting beams on the south end of the
blending loadout construction area. The miner was located at the
85 foot level. Two miners were located about 30 feet below that
level and one miner was located 25 feet below those two. The
sledge hammer was not on a lanyard and there was nothing to
prevent the hammer from falling onto any of the miners located
below the work activity.
The inspector determined than an injury was highly likely and that any injury would likely
be fatal. He determined that the violation was S&S and that the company's negligence was
moderate. The safety standard provides that "[w ]here overhead repairs are being made at surface
installations and equipment or material is taken into such overhead work areas, adequate
protection shall be provided for all persons working or passing below the overhead work area in

31 FMSHRC 265

which such equipment or material is being used." The Secretary proposes a penalty of
$19,793.00 for this citation.
Inspector Markve testified that the safety standard is designed to protect miners from the
hazards presented by falling objects. (Tr. 58). He stated that he saw a miner at the top of the
steel structure being constructed for the coal blending loadout facility. The building was "pretty
much a skeleton" at that point in time. (Tr. 59). The miner at the top of the facility was in a
double-lanyard safety harness and he was setting guide bolts for steel beams that were to be
added. He was straddling an I-beam at the 85-foot level. He was using a sledge hammer to
install the bolts. Tue inspector believed that he was using a 20 pound sledge that was not tied
off. The area below his work areawas open to the next level of the structure. (Tr. 61). There
were beams, tubes, and other components in the structure but, if he were to drop his hammer, it
would go at least to the first floor above ground. Id.
Markve testified that there were two miners 30 feet below the miner working on the beam
and one miner working25 feet below that point. Inspector Markve believed that these miners
were "pretty much all in a line," with the result that if the miner at the top were to.drop his
hammer it could have hit-one of the miners below. (Tr. 62, 76). He also believed that if the
hammer hit an object on the way down, it could still bounce around and hit a miner below. The
inspector testified that the hazard could have been avoided if the hammer had been attached to a
lanyard, or a net had been installed below the miner, or all work below him had been suspended.
Inspector Markve does not deny that there may have been pipes or other obstructions below the
miner working on the beam but he still believes that the violation created a serious safety hazard.
He testified that it was reasonably likely that someone would be seriously injured or killed by
hazard. Tue miner working on the beam would have his hammer in one hand and a bolt in the
other as he worked. (Tr. 76). He would pick up the hammer and set it down on a regular basis as
he worked. The miners working below were not paying any attention to what the miner above
was doing. If someone had been hit by the hammer, a fatal injury was highly likely. (Tr. 66).
Fatal accidents have occurred at other mines.over the years under similar circumstances.
CCC Group introduced photos of the loadout facility under construction. (Ex. R-3). The
company represented that the photos were taken a day or two after the citation was issued, but the
inspector thought that more construction work had been completed when the photos were taken.
(Tr. 71-72, 77). Ronald Segura testified that he was with the inspector when he issued the
citation. (Tr. 83). He recalls that other employees in the structure were on a lower level of the
loadout facility. That is, there were no employees on an intermediate level that was 30 feet
below the employee working on the beam. (Tr. 83). In addition, there were many impediments
between the employee working on the beam and anyone working on the lower level, including Qdecking, walkways, piping, and various structural members. Id. The Q-decking was used as a
base on which a concrete walkway would subsequently be poured. As a consequence, Segura did
not believe that it was probable that anything accidently dropped would hit a miner working ata
lower level. (Tr. 85). In addition, nothing had fallen from upper levels of the structure as it was
being constructed. Finally, the employees of CCC Group typically use sledge hammers that

31 FMSHRC 266

weigh four to six pounds because anything heavier would be too cumbersome to use. (Tr. 86).
Employees put the hammer in their tool belt or pouch when not in use. He admitted that if a
hammer were to fall, it could hit a structural member and then keep falling. The hammer could
also land on decking or another obstruction and fall no further. (Tr. 89-90).

I find that the Secretary established a violation. I credit the testimony of Mr. Segura that
the hammer weighed four to six pounds. Even though there were some obstructions below the
employee on the beam, if he were to drop his hammer, it could have bounced around and hit one
of the men working below. Adequate protection was not being provided for all persons working
or passing below the overhead work area.
Whether the violation is S&S is a close question. I find that the Secretary did not
establish the S&S nature of this violation. The inspector issued the citation after looking at the
structure under construction from a significant distance. He did not closely examine the work
areas to see how likely it was that a falling object would reach the lower level of the structure.
He could not state with any certainty if workers were below the man on the beam. (Tr. 76).
Consequently, I find that the Secretary established the first, second, and fourth elements of the
Mathies S&S test but that-she did not establish that it was reasonably likely that a hazard
contributed to by the violation would result in an injury. I find that the violation was serious
because the cited condition created a potential for a fatal accident.
I affirm the inspector's determination that the violation was the result of the moderate
negligence of CCC Group. A penalty of $5,000.00 is appropriate for this violation.

II. APPROPRIATE CIVIL PENALTIES
Section 11 O(i) of the Mine Act sets forth six criteria to be considered in determining
appropriate civil penalties. CCC Group is a rather large independent contractor that worked over
a million hours nationwide in 2007 and employed over 600 people in the third quarter of 2007.
(Data Retrieval System at MSHA's Website). CCC Group was issued about 8 citations at coal
mines and 19 citations at metal/nonmetal mines in the 24 months prior to August 29, 2007. Id.
The citations at issue in this case were rapidly abated in good faith. The penalties assessed in this
decision will not have an adverse effect on the opera.tor's ability to continue in business. My
gravity and negligence :findings are set forth above. Based on the penalty criteria, I find that the
penalties set forth below are appropriate.

31 FMSHRC 267

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

30 C.F.R. §

Penalty

77.408
77.203

$8,000.00
5,000.00

77.408

$425.00

WEST 2008-124
7610573
7610643
WEST 2008-125
7610642

TOTAL PENALTY .

$13,425.00

For the reasons set forth above, the citations are AFFIRMED or MODIFIED as set forth
above and CCC Group, fuc., is ORDERED TO PAY the Secretary of Labor the sum of
$13,425.00.00 within 30 days of the date of this decision. 1

Richard W. Manning
Administrative Law Judge
Distribution:
Gregory W. Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202 .(Certified Mail)
GaryD. Klatt, CSP, Safety, Health & Environmental Manager, CCC Group, fuc., P.O. Box
2000350, San Antonio, TX 78220-0350

RWM

1

Payment should be sent to the Mine Safety and Health Administration, U.S.
Department ofLabor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
31 FMSHRC 268

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

February 12, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 2007-154-M
A.C. No. 22-00313-101052

v.
HOLCIM (US) INCORPORATED,
Respondent

Holcim Artesia Plant

ORDER OF DISMISSAL
Before: Judge Feldman
.

This civil penalty matter concerns 104(d)(l) Citation No. 6243289 and 104(d)(l)
Order No. 6243291 issued to Holcim (US) Incorporated (Holcim) on May 2, 2006. Holcim
timely contested the citation and order in contest proceedings in Docket Nos. SE 2006-190-M
and SE 2006 -191-M. The contest proceedings were stayed on June 12, 2006, pending the
anticipated assignment of the related civil penalty case. On October 18, 2006, the Secretary
proposed a total civil penalty of $6, 700.00 in satisfaction of the citation and order.
Pursuant to section 105(a) of the Federal Mine Safety and Health Act of 1977, an operator
that wishes to contest a proposed civil penalty must notify the Secretary within 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).
Holcim failed to notify the Secretary within the required 30 day period. On
February 8, 2007, Holcim filed a Motion to Reopen Penalty Proceeding with the Commission
because it reportedly did not receive the Secretary's October 18, 2006, proposed $6, 700.00
penalty assessment. 1 On March 23, 2007, the Commission rem'Wded Holcim's request to reopen
to the Chief Administrative Law Judge (Chief ALJ) for a determination as to whether good cause
existed for Holcim's failure to timely notify the Secretary.

1

Holcim alleges that it may not have been served with the Secretary's proposed
assessment because of a typographical error in the caption of the June 12, 2006, Stay Order
in Docket Nos. SE 2006-190-M and SE 2006 -191-M. Although an error in the caption cannot
affect MSHA's mailing of a proposed assessment, it should be noted that a corrected stay order
was issued eight days later on June 20, 2006, after Holcim reported the error in the original
caption~
·
31 FMSHRC 269

Finding excusable neglect, on September 4, 2008, the Chief AU granted Holcim's
request to reopen, and ordered the Secretary to file a petition for the assessment of civil penalty.
The Secretary filed the petition on October 21, 2008, once again seeking a total civil penalty of
$6, 700.00. Holcim responded to the petition on October 27, 2008. This matter was assigned to
me by the Chief ALJ on November 30, 2008.
The records of the Mine Safety and Health Administration's (MSHA's) Office of
Assessments reflect that on October 23, 2008, Holcim paid a civil penalty of$6,700.00
in satisfaction of 104(d)(l) Citation No. 6243289 and 104(d)(l) Order No. 6243291.2
Consequently, on January 7, 2009, the contest proceeding in Docket Nos. SE 2006-190-M
and SE 2006-191-M were dismissed. 3
Thus, MSHA records reflect that Holcim paid the civil penalty after its successful efforts
to reopen this civil penalty matter. Holcim's excusable neglect has been compounded by its
subsequent payment of the $6, 700.00 that has rendered consideration of its motion to reopen an
unnecessary expenditure of scarce Commission resources.

ORDER
Accordingly, IT IS ORDERED THAT, the $6, 700.00 civil penalty having been paid,
the civil penalty proceeding in Docket No. SE 2007-154-M IS DISMISSED with prejudice.

Jerold Feldman
Administrative Law Judge

2

Holcim' s payment documentation is of record. Holcim paid a civil penalty of
$6,700.00, in addition to interest of$19.53. Holcim's total payment of$6,719.53 was by
Check No. 12750298 drawn on Wachovia Bank, dated October 15, 2008.
3

The contest proceedings in Docket Nos SE 2006-190-M and SE 2006 -191-M had not
yet been consolidated with the civil penalty proceeding in Docket No. SE 2007-154-M.
31 FMSHRC 270

Distribution:
Channah S. Broyde, Esq., Office of the Solicitor, U.S. Department of Labor,
61 Forsyth Street, SW, Room 7TIO, Atlanta, GA 30303
Micheal T. Heenan, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C.,
2400 N Street NW, 5th Floor, Washington, DC 20037

/rps

31FMSHRC271

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

February 19, 2009
CIVIL PENALTY PROCEEDINGS

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

Docket No. LAKE 2008-219-M
A.C. No. 12-02399..:139528-01
Docket No. LAKE 2008-220-M
A.C. No. 12-02399-139528-02

v.
D&HGRAVEL,
Respondent

D &H Gravel

DECISION
Appearances:

Wayne L. Lundquist, Conference & Litigation Representative, Mine
Safety and Health Administration, Duluth, Minnesota, for Petitioner;
James R. Salts, Owner/Operator, D & H Gravel, Williamsport, Indiana,
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 D & H Gravel pursuant to sections 105 and 110 of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. §§ 815 and 820 (the ''Mine Act"). The cases involve 21 citations issued
by MSHA on July 24, 2007, under section 104(a) of the Mine Act and 1 order of withdrawal
issued under section 104(g)(l ). The parties presented testimony and documentary evidence at the
hearing held in Lafayette, Indiana.
At all pertinent times, D & H Gravel operated a quarry in Warren County, Indiana.
D & H Gravel is a sole proprietorship owned by James R. Salts. (Tr. 102). The quarry mines
sand and gravel on an intermittent basis. The quarry operates in the summer months only with
one hourly employee, Brian Powell, who works no more that 20 to 30 hours a week. (Tr. 103).
The quarry mines material and then screens it. The quarry has been in operation for only a few
years. (Tr. 104). Mr. Salts is also a federal employee. (Tr. 108-09, 130). He stated that paying a
large civil penalty will have an adverse affect on his business. (Tr. 129-30). He further stated
that in 2006 he did about $31,000.00 worth of business and that, when the bills were paid, he
"may have broken even." (Tr. 130).
Mr. Salts testified that he did not know anything about MSHA until Inspector Jerry
Spruell arrived at the mine on July 24, 2007, to inspect the quarry. (Tr. I 04). At the hearing,
Salts questioned why MSHA did not send him a letter to advise him that he was subject to
31 FMSHRC 272

inspection by the agency. He said that Inspector Spruell was aware of his quarry before he
arrived to inspect it on July 24; he drove by the quarry to inspect other mines and yet he did not
attempt to tell Mr. Salts that the quarry was subject to inspection byMSHA. (Tr. 21).

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Discussion of General Issues
D & H Gravel is a very small, seasonal operation. It employed one part-time miner
besides Mr. Salts. I credit the testimony of Mr. Salts that he was unaware ofMSHA's ·
jurisdiction over the quarry and that he did not have personal knowledge of the Secretary's
regulations and safety standards. As set forth below, the Mine Act imposes strict liability on
mine operators so I cannot vacate citations on that basis. I affirm all of the citations except as
discussed below. I find, however, that the operator's negligence was low in each citation, except
where noted. Mr. Salts acted in good faith when he learned about MSHA's requirements and he
corrected the cited conditions.
The Secretary proposed a penalty of $100.00 for each citation and a penalty of $112.00
for Order No. 7810806. I have substantially reduced the penalties primarily because the quarry is
a small, intermittent operation and I have determined that the operator's negligence was low in
most instances. Information at MSHA's website indicates that the mine has been "abandoned"
and that the citations at issue are the only ones ever issued at the quarry.
The Federal Mine Safety and Health Review Commission and the courts have uniformly
held that mine operators are strictly liable for violations of safety and health standards. See, e.g.
Asarco v. FMSHRC, 868 F.2d 1195 (10th Cir. 1989). "[W]hen a violation of a mandatory safety
standard occurs in a mine, the operator is automatically assessed a civil penalty." Id. at 1197. In
addition, the Secretary is not required to prove that a violation creates a safety hazard, unless the
safety standard so provides.
The [Mine Act] imposes no general requirement that a violation of
MSHA regulations be found to create a safety hazard in order for a
valid citation to issue. If conditions existed which violated the
regulations, citations [are] proper.

Allied Products, Inc., 666 F.2d 890, 892-93 (5 1h Cir. 1982)(footnote omitted). The negligence of
the operator and the degree of the hazard created by the violation are taken into consideration in ·
assessing a civil penalty under section 11 O(i). 30 U.S.C. § 820(i). Thus, a violation is found and
a penalty is assessed even if the chance of an injury is not very great.·
The Commission interprets safety standards to take into consideration "ordinary human
carelessness." Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (September 1984). In that
case, the Commission held that the guarding standard must be interpreted to consider whether

31 FMSHRC 273

there is a "reasonable possibility of contact and injury, including contact stemming from
inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness." Id.
Human behavior can be erratic and unpredictable. For example, someone might attempt to
perform minor maintenance or cleaning near an unguarded tail pulley without first shutting it
down. In such an instance, the employee's clothing could become entangled in the moving parts
and a serious injury could result. Guards are designed to prevent just such an accident. This
principle applies to all violations of safety standards that could potentially injure a miner. The
fact that no. employee has ever been injured at the D & H Quarry is not a defense because there is
a history of such injuries at quarries throughout the United States. ..Even a skilled employee may
suffer a lapse of attentiveness, either from. fatigue or environmental distractions ...." Great
Western Electric Co., 5 FMSHRC 840, 842(May1983).

B. Contested Citations and Order
1. Inspector Jerry Spruell issued Citation No. 7810801 alleging a violation of section
56.18013. The citation alleges that there was no communication system at the mine to obtain
assistance in the event of an emergency. The citation states that the quarry was about five miles
from the nearest town and there was only one person working at the mine; Inspector Spruell
determined that an injury was unlikely but that any injury would result in lost workdays or
restricted duty.. He determined that the violation was not of a significant and substantial ("S&S")
nature and that the negligence was moderate. The safety standard provides that a "suitable
communication system shall be provided at the mine to obtain assistance in the event of an
emergency."
Inspector Spruell testified that there was no phone at the mine. (Tr. 13). An accident was
unlikely because there were no immediate hazards present at the mine. The inspector recognized
that Mr. Salts and his wife.lived about 500 feet from the quarry. (Tr. 15). He marked the
negligence as moderate because the operator should have known that a phone was required. (Tr..
17). Mr. Salts testified that his home is about 500 feet away from the mine and his wife is
always there. (Tr. 105, 108). She can see down into the mine and see anything that happens.
Thus, a communication system was present because, if a miner were hurt, someone could go to
the house or the injured person could signal to his wife. He also testified that when he is at the
mjne, his cell phone is available in the event of an emergency. (Tr. 107).
I find that the Secretary established a violation. There was no way to directly contact
emergency personnel in the event of an accident. The means suggested by Mr. Salts is clearly not
sufficient. A penalty of $20.00 is appropriate.
2. Inspector Spruell issued Citation No. 7810802 alleging a violation of section 46.3(a).
The citation alleges that the operator failed to develop and implement a written training plan for
his employee. The mine has been in operation for more than a year and the operator did not
notify MSHA. Inspector Spruell determined that there was no likelihood that there would be an
injury. He determined that the violation was not S&S and that the negligence was low. The

31FMSHRC274

regulation requires that every mine "develop and implement a written [training] plan approved
by''MSHA.
The inspector testified that the operator advised him that he was not aware of the
requirement of have a training plan for his employee. (Tr. 19). Mr. Salts testified that ifMSHA
had notified him that such a plan was required, he could have had a plan in place. (Tr. 108). He
also stated that his employee was experienced and well trained. Inspector Spruell knew about the
D & H Gravel operations for some time and he could have made a courtesy call to the pit to
advise him of the requirements of the Mine Act. The inspector was more interested in issuing
citations than improving the safety of miners. (Tr. 109).
I find that the Secretary established a violation. A penalty of $20.00 is appropriate.
3. Inspector Spruell issued Citation No. 7810803 alleging a violation of section 41.11 (a).
The citation alleges that the operator failed to submit a completed legal identity form to the
nearest MSHA office within 30 days after it opened the quany. Inspector Spruell determined
that there was no likelihood that there would be an injury. He determined that the violation was
not S&S and that the negligence was low. The regulation provides that an operator of a mine
"shall, in writing, notify the appropriate [MSHA] district manager" of the legal identity of the
operator.
Inspector Spruell testified that the quany had been open for a little over a year. (Tr. 24).
The operator was not aware of the requirement of this regulation. As with the previous citation,
Mr. Salts testified that if he had known that he was subject to inspection by MSHA, he would
have filed an identity report. Inspector Spruell had driven by this operation prior to July 24,
2007, and he could have told him about MSHA. (Tr. 109). Salts testified that he was not trying
to skirt the law, he just did not know about the Mine Act and its requirements.
The Secretary established a violation. A penalty of$10.00 is appropriate.
4. Inspector Spruell issued Citation No. 7810804 alleging a violation of section
56.15001. The citation alleges that adequate first-aid materials, including a blanket, a stretcher,
and a first-aid kit, were not provided at the mine. Inspector Spruell determined that an injury was
unlikely but that any injury would result in lost workdays or restricted duty. He determined that
the violation was not S&S and that the negligence was moderate. The safety standard provides
that ''[a]dequate first-aid materials, including stretchers and blankets, shall be provided at places
convenient to all working areas."
The inspector did not find any first-aid supplies at the mine. (Tr. 27). Mr. Salts testified
that he was trained in first aid at his other job and he had a first-aid kit in his truck. (Tr. 109).
He was not aware of the requirements of this safety standard.
The Secretary established a violation. A penalty of $20.00 is appropriate.
31FMSHRC275

5. Inspector Spruell issued Citation No. 7810805 alleging a violation of section
56.18010. The citation alleges that an individual trained to provide first aid was not available at
the mine. Inspector Spruell determined that an injury was unlikely but that any injury would
result in lost workdays or restricted duty. He determined that the violation was not S&S and that
the negligence was moderate, The safety standard provides that an "individual capable of
providing first aid shall be available on all shifts.''
Inspector Spruell testified that no employee was trained to provide first aid. (Tr. 28). Mr.
Salts testified that he was trained in first aid but that he was not always at the mine. His
employee was trained, but his certification was not current. {Tr. 110).
I find that the Secretary established a violation. A penalty of $20.00 is appropriate.
6. Inspector Spruell issued Order No. 7810806 under section 104(g)(l) of the Mine Act
alleging a violation of section 46.5(a). The order alleges that Bruce Powell, a new miner, had not
been given any new miner training before being employed as a miner at the quarry. Inspector
Spruell determined that an injury was reasonably likely and that anyiajury would result in lost
workdays or restricted duty. He determined that the violation was S&S and that the negligence
was low. The safety standard provides that each new miner must receive not less than 24 hours
of training prior to working at a mine
The inspector testified that history has shown that miners who are properly trained have
fewer accidents. (Tr. 31 ). There were no training records at the mine. He determined that the
violation was S&S because it was reasonably likely that an untrained miner would be seriously
injured. Mr. Salts testified that his employee had "a lot of training, but it wasn't on paper to meet
the citation." (Tr. 110). The employee has been working with heavy equipment all of his life
and he has been operating the loader at the mine for over a year. Salts believes that because the
employee was well trained, the citation should not be designated as serious and S&S.
I find that the Secretary established a violation. Mr. Salts did not offer any testimony that
specifically described the training the Mr. Powell received. It is highly unlikely that Powell
received the safety training required by the Secretary in Part 46. On that basis, I also find that the
Secretary established that the violation was S&S. A violation is classified as S&S "if based upon
the facts surrounding the violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature.'' National Gypsum
Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January
1984), the Commission set out a four-part test for analyzing S&S issues. Evaluation of the
criteria is made assuming "continued normal mining operations.'' U S. Steel Mining Co., 6
FMSHRC 1573, 1574 (July 1984). The question of whether a particular violation is S&S must
be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498
(April 1988). The Secretary must establish: (1) the underlying violation of the safety standard;
(2) a discrete safety hazard, 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
31 FMSHRC 276

likelihood that the injury in question will be of a reasonably serious nature. The Secretary is not
required to show that it is more probable than not that an injury will result from the violation. ·
U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996). In this instance, it was reasonably
likely that, assuming continued mining operations, Powell's lack of training would result in an
injury of a reasonably serious nature. A penalty of $50.00 is appropriate.
7. Inspector Spruell issued Citation No. 7810807 alleging a violation of section
56.14132(a). The citation alleges that neither the horn nor the backup alarm were operational on
the Caterpillar 988 loader. When the transmission was placed in reverse no alarm sounded and
the manually-operated horn would not work. Inspector Spruell determined that an injury was
unlikely but that any injury would likely be fatal. He determined that the violation was not S&S
and that the negligence was moderate. The safety standard provides that "[m )anually-operated
horns or other audible warning devices provided on self-propelled mobile equipment as a safety
feature shall be maintained in functional condition."
Inspector Spruell testified that when these safety devices were tested, they did not work.
(Tr. 35). He said that an injury was unlikely because there was usually only one person working
at the quarry. Salts testified that there was a horn button in the loader, but it was apparently not
working. (Tr. 112). He did not know that these audible warning devices were not working
properly.
The Secretary established a violation. Although the cited condition was not S&S it
presented a safety hazard. The operator's negligence was moderate. A penalty of $40.00 is
appropriate for this violation.
8. Inspector Spruell issued Citation No. 7810808 alleging a violation of section
56.14103(b). The citation alleges that the right front windshield on the Caterpillar 988 loader
was not replaced or removed after it had become damaged about a month earlier. There was a
spider-web-type break in the glass. The equipment operator could have cut his hand while trying
to clean this section of the window. Inspector Spruell determined that an injury was unlikely but
that any injury would likely result in lost workdays or restricted duty. He determined that the
violation was not S&S and that the negligence was moderate. The safety standard provides, in
part, that "[i]f damaged windows obscure visibility necessary for safe operation, or create a
hazard to the equipment operator, the windows shall be replaced or removed."
Inspector Spruell testified that the hazard presented to the loader operator was the risk
that he could cut his hand while cleaning the window. (Tr. 39; Ex. G-1). The cracks also
partially obstructed the loader operator's view. Mr. Salts testified that the cracks would not
obscure the view of the operator and the chance of anyone cutting his hand on the cracks was
minimal. (Tr. 113-14).
I credit the testimony of Mr. Salts. The photograph shows that the cracked window did
not present a hazard. (Ex. G-1 ). The cracks were at the edge of a side window. The loader
31 FMSHRC 277

operator could easily see through the window. The risk of someone cutting his hand when
cleaning the window was pretty insignificant. This citation is vacated.
9. Inspector Spruell issued Citation No. 7810809 alleging a violation of section ·
56.14130(a). The citation alleges that, although there were seat belts in the Caterpillar 988
loader, they were not installed in a way that would allow them to function. The original seat belt
was stuck beneath the operator's seat and was not functioning because the ends coul.d not be
latched. An additional. seat belt was present but the right half of the belt was not connected to the
bracket. Inspector Spruell determined that an injury was reasonably likely and that any injury
would likely result in lost workdays or restricted duty. He determined that the violation was S&S
and that the negligence was moderate. The safety standard provides, in part, that seat belts shall
be installed in wheel loaders.
The inspector testified that it was obvious that the seat belt was not being used on the
loader because the belt was damaged so that it could not be used. (Tr. 41, 43). The ends of the
original seat belt could not be connected and latched. The belt was stuck underneath the seat,
which indicated to the inspector that it had not been used. {Tr. 46). At some point in time
another seat belt was installed, but could not be used as well. (Tr. 44). The inspector did not
personally observe the loader operator using the equipment without wearing a seat belt. It·was
reasonably likely that the loader operator would be injured in the event of an accident.
Mr. Salts
testified that the original .seat belts in the loader worked properly. (Tr. 114).
.
They latched together in a way that is different from seat belts used today. The other belt that
had been installed was not working, but the original set was functional. This set may have fallen
under the seat. The violation was also neither serious nor S&S and there was no negligence.
Salts testified that the employee has worn the seat belt in the past. (Tr. 115).

I credit the testimony of Mr. Salts that there was a functioning seat belt in the loader.
Because the latch operated differently than is typical, the inspector may not have recognized that
it could be used. Consequently, this citation is vacated.
10. Inspector Spruell issued Citation No. 7810810 alleging a violation of section
56.14101(a)(3). The citation alleges that the left, rear brake on the loader had been disconnected
and the line leading to the brake chamber had been plugged off. When tested, the brakes stopped
and held the loader on an incline without a load in the bucket. Inspector Spruell determined that
an injury was reasonably likely and that any injury would likely result in lost workdays or
restricted duty. He determined that the violation was S&S and that the negligence was moderate.
The safety standard provides that "[a]ll braking systems installed on [self-propelled mobile]
equipment shall be maintained in functional condition."
Inspector Spruell testified that the left, rear brake had been disconnected and the line from
the actuator had been plugged off. {Tr. 47-48). He believed that because one of four brakes had
been rendered inoperable, an injury was reasonably likely. The loader stopped when it was tested

31 FMSHRC 278

on an incline, but the safety standard requires that all the braking systems be functional. (Tr. 5154).
Mr. Salts testified that he was not aware that the line leading to the left, rear brake on the
loader had been plugged off. (Tr. 116). Nevertheless, he testified that the brakes worked fine.
When the brakes were tested by the inspector, the loader held on an incline. The citation should
not have been designated as serious or S&S and there was no negligence because he was not
aware of the condition.- All the braking systems on the loader were working.
I find that the Secretary established a violation. Although the brakes could stop the loader
when tested, not all of the brakes on the loader were working. If the loader operator had to stop
the vehicle quickly in an emergency, he would likely need all of the brakes to work. I find,
however, that the violation was not S&S. It was not reasonably likely that someone would be
injured as a result of this violation. The operator's negligence was moderate because an
inspection of the loader would have revealed the condition. A penalty of $40.00 is appropriate.
11. Inspector Spruell issued Citation No. 7810811 alleging a violation of section
50.30(a). The citation alleges that work was performed at the quarry in March 2007 and a
quarterly employment report was not completed or submitted for the first quarter of 2007.
Inspector Spruell determined that there was no likelihood of an injury and that the operator's
negligence was low. The regulation requires, in part, that every mine operator prepare and
submit to MSHA a quarterly employment report.
The inspector testified that a miner worked at the quarry during the first quarter of 2007
and the required quarterly employment report was not submitted to MSHA. (Tr. 55). Mr. Salts
testified that he did not know about this requirement.
I find that the Secretary established a violation, but the violation was not serious. A
penalty of $10.00 is appropriate for this violation.
12. Inspector Spruell issued Citation No. 7810812 alleging a violation of section
50.30(a). The citation alleges that work was performed at the quarry during April, May and June
2007 and a quarterly employment report was not completed or submitted for the first quarter of
2007. Inspector Spruell determined that there was no likelihood of an injury and that the
operator's negligence was low.
The inspector testified that a miner worked at the quarry during the second quarter of
2007 and the required quarterly employment report was not submitted to MSHA. (Tr. 58). My
findings here are the same as with the previous citation.
13. Inspector Spruell issued Citation No. 7810813 alleging a violation of section
56.13015(a). The citation alleges that there was no record to indicate that the air receiver tank on
the air compressor at the shop had been inspected by a certified inspector. The compressor was

31 FMSHRC 279

fairly new and had been recently installed. No adverse conditions were observed by the
inspector. Inspector Spruell determined that an injury was unlikely but that any injury would
likely result in lost workdays or restricted duty. He determined that the violation was not S&S
and that the negligence was low. The safety standard provides, in part, that "[ c]ompressed-air
receivers and.other unfired pressure vessels shall be inspected by inspectors holding a valid
National Board Commission."
The inspector testified that there was no indication that the air receiver had ever been
properly inspected. (Tr. 60-61 ). The violation was not S&S because the compressor appeared to
be fairly new and in good shape. Mr. Salts testified that he was not aware that these tanks had to
be inspected, especially on compressors that are new. (Tr. 117). He testified that the tank was ·
on a "brand-spanking-new compressor." Id. The manufacturer placed a metal tag on the side of
the pressurized vessel to show that it was pressure-tested before it was sold. ·He testified that he
bought the compressor in 2006 or 2007. (Tr. 119).
I credit the testimony of Mr. Salts that the compressor was new and that it had been
recently pressure-tested and inspected by the manufacturer. The citation is vacated.

14. Inspector Spruell issued Citation No. 7810814 alleging a violation ofsection
56.12028. The citation alleges that there was no record to indicate that testing for continuity and
resistance of the grounding system had been performed at this quarry. Electrical equipment was
present at the mine. No ungrounded circuits were discovered. Inspector Spruell determined that
an injury was unlikely but that any injury would likely result in lost workdays or restricted duty.
He detennined that the violation was not S&S and that the negligence was low. The safety
standard provides, in part, that "[c]ontinuity and resistance of grounding systems shall be tested
immediately after installation, repair, and modification, and annually thereafter."
The inspector testified that the resistance and continuity of the. grounding circuits for
electrical motors had never been tested at the quarry. (Tr. 64). No ungrounded circuits were
found. The inspector considered this to be a paperwork violation. (Tr. 66). Mr. Salts testified
that all equipment was properly grounded. (Tr. 119). He said that he was not aware he was
required to do this test.
The Secretary established a violation. All electric equipment was properly grounded. A
penalty of $20;00 is appropriate.
15 .. Inspector Spruell issued Citation No. 7810815 alleging a violation of section
56.12034. The citation alleges that there were no guards on the two lights in the shop. There
was nothing in place to prevent contact with the bulbs. Inspector Spruell determined that an
injury was unlikely but that any injury would likely result in lost workdays or restricted duty. He
determined that the violation was not S&S and that the negligence was low. The safety standard
provides, in part, that "[p]ortable extension lights, and other lights that by their location present a
shock or burn hazard, shall be guarded."

31 FMSHRC 280

Inspector Spruell testified that the unguarded lights were about6 Yi feet above the floor of
the shop. The hazard the inspector was concerned about was getting burned by contacting the
bulbs. (Tr. 67). Mr. Salts testified that, given the height of the bulbs, it was highly unlikely that
anyone would come into contact with the lights. (Tr. 120).
I agree that contact with the bulbs was unlikely, but they were not so high that they did
not present a hazard. The Secretary established a violation. A penalty of $20.00 is appropriate. ·
16. Inspector Spruell issued Citation No. 7810816 alleging a violation of section
56.420l(a)(l). The citation alleges that the fire extinguishers on the loader and at the shop were
not being inspected monthly to determine if they were fully charged and operable. The gauges
showed that the extinguishers were fully charged and they appeared to be operable. Inspector
Spruell determined that an injury was unlikely but that any injµry would likely result in lost
workdays or restricted duty. He determined that the violation was not S&S and that the
negligence was low. The safety standard provides, in part, that "[f]ire extinguishers shall be
visually inspected at least once a month to determine that they are fully charged and operable."
The inspector testified that the extinguishers had not been inspected, but they appeared to
be fully functional. (Tr. 71 ). Mr. Salts testified that he was not aware of this requirement. He
stated that he regularly checks them but there are no tags on the extinguishers to indicate when
they were tested. (Tr; 120-21 ). They were all in working order.
The Secretary established a violation. I credit the testimony of Mr. Salts and find that the
violation was not serious. A penalty of $20.00 is appropriate.
17. Inspector Spruell issued Citation No. 7810817 alleging a violation of section
56.12032. The citation alleges there was no cover on the main breaker panel for the quarry. This
condition meant that energized electrical parts would be exposed to anyone who opened the
panel door. Inspector Spruell determined that an injury was unlikely but that any injury would
likely result in lost workdays or restricted duty. He determined that the violation was not S&S
and that the negligence was low. The safety standard provides, in part, that "[i]nspection and
cover plates on electrical equipment and junction boxes shall be kept in place at all times except
during testing or repairs."
Inspector Spruell testified that the breaker panel was south of the scale trailer. The door
for the panel was closed but, when opened, there was no cover for the breakers. (Tr. 74). The
circuits were energized.

Mr. Salts admits that there was a panel missing on the inside of the electrical box, but the
outside cover was still present. (Tr. 121 ). Salts had an electrical contractor install this box and
he was not aware that the inside cover was missing.

31FMSHRC281

The evidence establishes that the outside cover for the electrical box was closed. The
inner cover was apparently never installed by the electrician. The Secretary established a
violation. A penalty of$20.00 is appropriate.
18. Inspector Spruell issued Citation No. 7810818 alleging a violation of section
56.11012. The citation alleges that there were openings in the handrail around the platform on
the sand conveyor. The platform was about 7 feet above the ground and 2 Yi feet wide. At the
top of the ladder there was nothing in place to prevent anyone from falling down. At the right
side of the platform· there was an 18 inch area that was not protected by a handrail. There was
also an opening in the floor of the platform that was 2 feet long and about 6 inches wide.
Inspector Spruell determined that an injury was reasonably likely and that any injury would likely
result in lost workdays or restricted duty. He determined that the violation was S&S and that the
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."
Inspector Spruell testified that the platform for the sand conveyor had areas that were not
protected by handrails. (T-r. 78; Exs. G-6, G-7 & G-8). A person could fall from the platform or
partially fall through the opening in the floor. The platform was 7 feet above the ground. There
was no handrail where the ladder came up to the platform and to the left of the ladder. (Tr. 79).
There was another opening at the end of the platform near the engine" This area would need to
be accessed twice a day to start and stop the engine. There was also an opening in the floor of
the platform near the engine.
Mr. Salts testified that at one end of the platform, the handrail was not tied back to the
structure. He said that "[t]here was hardly enough room for anybody to get through there." (Tr.
122). The citation should not have been marked as "reasonably likely'' and the negligence should
be low.
I credit the testimony of Inspector Spruell as to the hazards presented by the cited
conditions. The citation is affirmed as written. The violation was S&S because it was
reasonably likely that someone would he injured by the conditions, assuming continued mining
operations. The operator's negligence was moderate because the hazards were obvious. (Tr. 84).
A penalty of$50.00 is appropriate.
19. Inspector Spruell issued Citation No. 7810819 alleging a violation of section
56.14107(a). The citation alleges that there was no guard on the tail pulley of the finish gravel
conveyor belt. The unguarded pulley was about 2 Yi feet above the ground. The inspector was
advised that people are not in the area when the conveyor is operating. Inspector Spruell
determined that an injury was unlikely but that any injury would likely be permanently disabling.
He determined that the violation was not S&S and that the negligence was moderate. The safety
standard provides, in part, that "[m ]oving machine parts shall be guarded to protect persons from

31 FMSHRC 282

contacting ... drive, head, tail, and takeup pulleys ... and similar moving machine parts that can
cause injury."
The inspector testified that there was no guard to protect the cited tail pulley. (Tr. 88-89;
Ex. G-9). He did not believe that an injury was likely because people do not normally travel
through the area when the conveyor is operating.

Mr. Salts testified that nobody walks or travels near this pulley when it is operating. {Tr.
123). I find that the Secretary established a violation. The pulley was clearly not guarded. {Ex.
G-9). I affirm the citation and find that the operator's negligence was moderate. A penalty of
$30.00 is appropriate.
20. Inspector Spruell issued Citation No. 7810820 alleging a violation of section
56.14109. The citation alleges that there was no railing or stop cord for the three upper rollers
and one lower roller on the sand conveyor belt. The upper rollers were between 3 Yz and 6 Y:z feet
above the ground while the bottom roller was about 4 feet above the ground. Someone travels by
the belt after the conveyor is started. Inspector Spruell determined that an injury was reasonably
likely and that any injury would likely result in lost workdays or restricted duty. He determined
that the violation was S&S and that the negligence was moderate. The safety standard provides,
in part, that "[u]nguarded conveyors next to travelways shall be equipped with {a) emergency
stop devices ... or {b) railings ...."
Inspector Spruell testified that there was a conveyor belt without a railing or stop cord in
an area where contact could be made with the belt or rollers. {Tr. 91). The rollers were from 3
feet to 6 Y:z feet above the ground. He determined that the violation should be S&S because the
employee walks by this area while the conveyor is operating. He based this determination on a
conversation with the employee. The employee would be 3 to 4 feet from the conveyor when he
walked by. This condition should have been known by the operator.

Mr. Salts testified that nobody would travel near the conveyor belt. {Tr. 123). He said
that he was baffled that anyone would have told the inspector that he usually walked near the
conveyor because it is not on the way to anything. He also testified that the condition was not
serious because nobody could get into the belt or rollers.
I find that the Secretary established a violation. The area was not protected by a railing or
a stop cord. Whether the violation was S&S is a close question because the testimony directly ·
conflicts. I find that the violation was not S&S. The evidence does not establish that it was
reasonably likely that anyone would come into contact with the belt or the rollers. The conveyor
was out in the open and I am not convinced that anyone would walk immediately adjacent to the
moving belt. The operator's negligence was moderate. A penalty of$30.00 is appropriate.
21. Inspector Spruell issued Citation No. 7810821 alleging a violation of section
56.14107(a). The citation alleges that a guard was not provided to prevent accidental contact

31 FMSHRC 283

with the pulley or v-belt drive on the engine of the loader. The pulley and belt were about 2 to 3
inches from the cowling at the left rear of the loader. The loader operator was observed passing
by this area during trips in and out of the cab of the loader. Inspector Spruell determined that an
injury was reasonably likely and that any injury would likely result in lost workdays or restricted
duty. He determined that the violation was S&S and that the negligence was moderate.
The inspector testified that there was no guard to protect the pulley and v-belt on the
engine of the loader. (Tr. 94; Ex. G-10). He testified that the loader operator passes close by this
area every time he gets in and out of the loader. (Tr. 95). The condition was obvious and
presented a hazard of a serious injury.

Mr. Salts testified that the v-belt drive and pulley referenced in the citation are for the air
conditioner for the loader. (Tr. 124-25). The loader was manufactured without any type of guard
in this location.
I find that the Secretary established a violation. The fact that the manufacturer did not
install a guard does not relieve the operator from its responsibility to comply with the safety
standard. I affirm the citation as written, including the S&S determination, except that I find that
the operator's negligence was low. The pulley and drive belt are partially recessed behind the
frame of the loader and the operator did not believe that it created a hazard. A penalty of $40 .00
is appropriate.

22. Inspector Spruell issued Citation No. 7810822 alleging a violation of section
56. l 8002(a). The citation alleges that a competent person designated by the operator was not
examining each working place at least once each shift for conditions which may adversely affect
safety or health. Several safety hazards were discovered during the MSHA inspection. Inspector
Spruell determined that an injury was reasonably likely and that any injury would likely result in
lost workdays or restricted duty. He determined that the violation was S&S and that the
negligence was low. The safety standard requires that a "competent person ... examine each
working place at least once each shift for conditions which may adversely affect safety or
health." The operator is required to correct any safety hazards that are found.
Inspector Spruell testified that the operator was not keeping records of workplace
examinations that are required to be performed each shift. {Tr. 99). He was not given any
information that suggested that such examinations were being conducted. He determined that the
violation was S&S based on the number of violations he found during his inspection. Negligence
was low because the operator was not aware that it was subject to MSHA inspections.

Mr. Salts testified that he performed examinations at the quarry and he made any
necessary repairs. He went to the quarry every evening to check everything. (Tr. 126).
I find that the Secretary established a violation. I also find that the violation was S&S
because workplace examinations are crucial to ensure that the work environment is safe.

31 FMSHRC 284

Although I do not dispute that Mr. Salts checked out and repaired equipment in the evenings,
such activities are not as comprehensive as the examinations required under the safety standard.
Recording safety problems in a record book also helps to ensure that any problems are promptly
corrected. A penalty of$30.00 is appropriate.
·

II. APPROPRIATE CIVIL PENALTIES
Section l lO(i) of the Mine Act sets out six criteria to be considered in determining
appropriate civil penalties. D & H Gravel had not been issued any citations prior to the present
inspection. D & H Gravel was a small operator. AII of the violations were abated in good faith.
D & H Gravel did not establish that the penalties assessed in this decision will have an adverse
effect on its ability to continue in business. My gravity and negligence findings are set forth ·
above. Based on the penalty criteria, I find that the penalties set forth below are appropriate.

ID. ORDER
Based on the criteria in section 11 O(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties: Citation/Order No.

30 C.F.R. §

Penalty

56.18013
46.3(a)

$20.00
20.00
10.00
20.00
40.00
Vacated
Vacated
40.00
10.00
10.00
Vacated
20.00
20.00
20.00
20.00
50.00
30.00
30.00
40.00
30.00

LAKE 2008-219-M
7810801
7810802
7810803
7810804
7810807
7810808
7810809
7810810
7810811
7810812
7810813
7810814
7810815
7810816
7810817
7810818
7810819
7810820
7810821
7810822

41.ll(a)
56.15001
56.14132(a)
56.14103(b)
56.14130(a)
56.14101(a)(3)
50.30(a)
50.30(a)
56.13015(a)
56.12028
56.12034
56.4201(a)(l)
56.12032
56.11012
56.14107(a)
56.14109
56.14107(a)
56.18002(a)
31 FMSHRC 285

LAKE 2008-22ff-M
7810805
7810806

56.18010
46.5(a)

TOTAL PENALTY

20.00
50.00

$500.00

Accordingly, the citations contested in these cases are AFFIRMED, MODIFIED, or
VACATED as set forth above and D & H Gravel is ORDERED TO PAY the Secretary of
Labor the sum of $500.00 within 40 days of the date of this decision. 1 Upon payment of the
penalty, these proceedings are DISMISSED.

Richard W. Manning
Administrative Law Judge

Distribution:

Wayne L. Lundquist, Conference & Litigation Representative, Mine Safety and Health
Administration, 515 W. First Street, Room 333, Duluth, MN 55802-1302 (Certified Mail)
James R. Salts, D & H Gravel, 7794 S State Road 263, Williamsport, 1N 47993-8271 (Certified
Mail)

RWM

1

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

31 FMSHRC 286

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

February 26, 2009
CONTEST PROCEEDING

WEST RIDGE RESOURCES, INC,
Contestant

Docket No. WEST 2009-504,..R
Order No. 8454817-05; 02/13/2009

v.
West Ridge Mine
Id. No. 42-02233

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

DECISION
Appearances:

Kevin N. Anderson, Esq., and Jason W. Hardin, Esq., Fabian &
Clendenin, Salt Lake City, Utah, and Daniel W. Wolff, Esq,
Crowell & Moring, Washington, DC, for West Ridge Resources, Inc.;
Timothy S. Williams, Esq., John Rainwater, Esq., and Derek Baxter,
Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, and
Arlington, Virginia, for the Secretary of Labor.

Before:

Judge Manning

This case is before me on a notice of contest brought by West Ridge Resources, Inc.
("West Ridge") against the Secretary of Labor, acting through the Mine Safety and Health
Administration ("MSHA"), pursuant to section 105 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et. seq. (the "Mine Act"). An expedited hearing was held in Denver,
Colorado, on February 20 and 21, 2009.

I. BACKGROUND AND STIPULATIONS
West Ridge operates the West Ridge Mine, a large underground coal mine in Carbon
County, Utah. The mine extracts coal in panels using a longwall system. fu each panel, two sets
of entries are excavated using continuous mining equipment to the very back of the panel. The
coal to be mined is between the two sets of entries. The longwall equipment is transported to the
back of the panel where it is set up to begin the mining process. Large cutting blades with teeth
(the "shearer") cut the coal along the face. The coal is transported out of the mine on a series of
conveyor belts. As the shearer moves along the face cutting the coal, the shields that support the
roof move closer to the longwall face along with the other longwall equipment, so that a new cut
can be made. The longwall equipment moves toward the main entries of the mine until the panel
31 FMSHRC 287

is completely mined out. This type of mining is often referred to as retreat mining because the
longwall equipment is set up at the back of the panel and the coal is cut as the equipment
"retreats" toward the main mine entries.
The West Ridge Mine is under deep cover. In a very real sense, the mine is under a
mountain. As discussed below, the mine experienced a series of bounces in late January 2009.
When a bounce occurs there is a sudden outburst of coal from the ribs (sides) of an entry. The
outburst can also emanate· from the working face. One miner was injured as a result of a bounce.
The parties entered into stipulations of fact. The key stipulations are set forth below. I
have edited the stipulations slightly as shown in brackets.
4. Since May 2001, West Ridge has utilized a longwall mining system commonly
referred to as a two-entry yield pillar system, where, generally, longwall panels are mined one
after another, with two entries and 30-foot yield pillars left between them.

5. On August 15, 2008, Allyn Davis, District Manager, Coal Mine Safety & Health
("CMS&H") District 9, sent a letter to West Ridge discussing the proposed longwall retreat of
Panel 13. (Joint Exhibit ("JX") 1).
·
7. On September 9, 2008, West Ridge submitted a large roof control plan amendment
and accompanying reports. (JX-3).
9. On September 19, 2008, West Ridge submitted to MSHA a Site Specific Mining Plan
for Longwall Panel 13, which enclosed the September 17, 2008 report [prepared by Agapito
Associates, fuc. ("AAI'')]. (JX-5).
10. On October 8, 2008, Michael.Gauna, Mining Engineer, Roof Control Division of
MSHA, authored his evaluation of [the site specific plan]. (JX-6).
11. On October 20, 2008, West Ridge sent a letter to [District Manager Davis], enclosing
for his review and approval a submittal amending pages 39 and 40 of the current West Ridge
Roof Control Plan. ·(JX-7).
12. On October 27, West Ridge sent a letter to [District Manager Davis] enclosing for his
review and approval modifications/amendments to the currently approved West Ridge Roof
Control Plan. (JX-8).
·
13. On October 31, 2008, MSHA sent a letter to West Ridge approving proposed roof
control plan amendments. (JX-9).
·
14. Also, on October 31, 2008, MSHA sent a letter to West Ridge approving the
proposed roof control plan to longwall mine Panel 13. (JX-10).

31 FMSHRC ·288

15. West Ridge began to Iongwall mine Panel 13 in November 2008.
16. On January 24, 2009, a coal burst occurred on the Panel 13 longwall in the tailgate
[area of the face]. It damaged mining equipment and caused mining to cease for over an hour.
No one was injured. West Ridge reported the incident to MSHA pursuant to 30 C.F.R. § 50.10.
MSHA issued an order pursuant to section 103(k) of the Mine Act and terminated the order the
next day. (JX-11).
17. On January 26, 2009, a coal burst occurred on the Panel 13 lorigwall in the tailgate
[area of the face]. It damaged equipment and caused mining to cease for over an hour. No one
was iajured. West Ridge reported the incident to MSHA pt1rsuant to· [sectfon 50. l O]. MSHA
issued an order pursuant to Section 103(k) of the Mine Act (Order No. 8454816) after the bounce
occurred. (JX-12).
18. Order No. 8454816 was twice amended to allow West Ridge to move equipment.
(JX-13 & 14).
19. On January 29, 2009, MSHA terminated Order No. 8454816 following approval of a
roof control amendment (JX-15). Among other things in the amendment, West Ridge agreed to ·
slow the rate of mining from forty-five (45) feet per minute to thirty-two (32) feet per minute on
most portions of the longwall face and to twenty (20) feet per minute on the tailgate portion.
20. On January 31, 2009, a coal burst occurred on the Panel 13 longwall in the tailgate
[area of the face]. It caused injury to the Iongwall shearer operator. West Ridge reported the
incident to MSHA pursuant to [section 50.10].
21. Following the coal outburst on January 31, 2009, MSHA issued an Order pursuant to
Section 103(k) of the Mine Act (Order No. 8454817). (JX-16).
22. Later on January 31, 2009, MSHA issued a modification to the order [No. 845481701] to allow West Ridge to bring the shearer to the headgate. (JX-17).
23. On February 1, 2009, MSHA issued a second modification to the order [No. 845481702] to allow maintenance on the longwall. (JX-18).
24. On February 2, 2009, MSHA issued a third modification to the order [No. 845481702 (sic)] to allow West Ridge to test the feasibility of remotely operating the longwall shearer.
[JX-19].
25. On February 5, 2009, West Ridge sent a letter to [District Manager Davis], attaching
for his review and approval a request for amendment to the roof control plan to allow for mining
the remainder of Panel 13 using remote operation. (JX-20).

31 FMSHRC 289

26. On February 6, 2009, MSHA sent a letter to West Ridge denying the February 5,
2009, requested amendments and noting several deficiencies. (JX-21) .
. 27. On February 7, 2009, West Ridge sent a letter to [District Manager Davis], attaching
for his review and approval a request for amendment to the roof control plan to allow for
evaluation of the remote longwall mining system for Panel 13. (JX-22).
28. On February 7, 2009, MSHA issued a fourth modification to the order [No. 845481703 (sic)], which allowed for the implementation of the plan to retreat the longwall to a point 35
feet inby crosscut 32 using remote longwall operation and which also stated that, during this
time, the performance of the plan would be evaluated to determine feasibility and exposure. (JX.
23).
29. On February 7, 2009, MSHA also sent a letter to West Ridge approving the plan to
allow for evaluation of the remote longwall mining system for Panel 13. (JX-24).
30. On February 13, 2009, MSHA issued a fifth modification to the order [No. 845481705] prohibiting further lorrgwaU retreat past crosscut number32 and referencing a letter from
Allyn Davis to Darrell Leonard of February 13, 2009. (JX-25).
31. On February 13, 2009, Allyn Davis also sent a letter to West Ridge indicating the
results ofMSHA's evaluation and stating that the 103(k) order was being modified to preclude
additional mining beyond crosscut 32. (JX-26).
Because the language of Order No. 8454817 and some of the subsequent modifications

are important to the disposition of this case, I have set them out below:
Order No. 8454817 (January 31, 2009) states:
A bounce/outburst of coal occurred at approximately 0700 hours
on January 31, 2009, located at the tail gate area of the 7th West
two-entry longwall section (MMU 003). This event involved the
shearer between #134 and #144 shields.
This order is issued to assure the safety of all persons at this
operation, until examination and/or investigation of the
bounce/outburst area is made to determine that the area is safe.
This order will also prohibit any mining of coal on the 7th West
section, until this investigation is complete.

31 FMSHRC 290

Modification No. 8454817-03 1 (February 2, 2009) states:
This modification is to allow the operator to test the feasibility of
remotely running the shearer from outby the bounce prone area.
The operator may do the following:
1. Install additional lighting
2. Paint the cowl with reflective or fluorescent paint while the·
shearer is at the headgate
3. Tram the shearer up and down the face
4. Perfomi any cleanup ·with the shearer that may be needed
5. Install permissible cameras on the shearer from a safe location
and at the tailgate.
This order prohibits the mining ofany coal on the 7th West section,
except any necessary cleanup to facilitate tramming the shearer.
Modification No. 8454817-04 (February 7, 2009) states:
This order is modified to allow the implementation of the plan,
dated February 7, 2009, to retreat the longwall to 35 feet inby
crosscut 32. During this time, the performance of the plan will be
evaluated to determine feasibility and exposure.
Modification No. 8454817-05(February13, 2009) states:
THIS ORDER IS MODIFIED TO PROHIBIT FURTHER
LONGWALL RETREAT PAST CROSSCUT NUMBER 32. This
modification of the (k) order is based on an evaluation of the
feasibility and exposure associated with the February 7, 2009, plan
modification. Please see the attached letter from District Manager
Allyn Davis to Mr. Darrell Leonard dated February 13, 2009.
The letter from District Manager Davis dated February 13 states, in part, that MSHA had
performed an evaluation of the February 7 plan and "the results make it clear that this method of
mining presents unacceptable risks to miners." The letter goes on to state:
Longwall panel 13 is mining under deep cover and in difficult
geological conditions. Coal bursts continue to occur on the

1

This modification was incorrectlynumbered-02 by the inspector. fu addition, Modification
No. 8454817-03, discussed below should have been numbered -04. I have used the correct numbers
in this decision.
31 FMSHRC 291

longwall face. fudeed, significant bounce activjty occurred last
night and early this morning which indicates that conditions appear
to be worsening. A log kept by West Ridge shows numerous
instances of miners traveling inby shield No. 125, exposing them to
the hazards of coal bursts. The February 7 modification provides
no protection for miners performing necessary maintenance at the
face, and does not provide for necessary examinations through the
tailgate. The need to have access to the entire face during normal
mining cannot be overlooked. The February 7 modification did not
adequately address safe access to the tailgate, the ability to
:frequently check the face and tailgate for hazards and methane,
prevention of accumulations of combustible material, and routine
maintenance. The continued exposure to miners of hazards under
the February 7 modification is unacceptable. MSHA cannot allow
the mine to continue operating under this modification. Therefore,
the 103(k) order will be modified to preclude additional mining
beyond crosscut 32.
It is this final modification of the order prohibiting further mining of Panel No. 13 that is the
subject of this litigation.

The parties presented numerous witnesses and exhibits at the two day hearing. The
Secretary called Peter Del Duca, a mining engineer in the roof control division ofMSHA's Coal
District 9; Michael Gauna, a mining engineer in the roof control division ofMSHA's Technical
Sµpport Directorate; Ronald Paletta, a .coal mine inspector from MSHA' s Price, Utah, office;
Kevin Stricklin, Administrator of Coal Mine Safety and Health for MSHA; and Allyn Davis,
District Manager for Coal District 9. West Ridge called Bruce Hill, President of West Ridge;
Darrell Leonard, Mine Superintendent; Hubert Wilson, Safety Director at the mine; Ernie
Martinez, a longwall production foreman at the mine; Adam Mann, an assistant shift foreman;
Mike Allred, a longwall production coordinator; and Dr. Syd Ping, a professor of mining
engineering at West Virginia University.
Section 103(k) of the Mine Act gives the Secretary authority to issue what are known as
control orders at the nation's mines. 30 U.S.C. § 813(k). That section provides:.
In the event of any accident occurring in a coal or other mine, an
authorized representative of the Secretary, when present, may issue
. such orders as he deems appropriate to insure the safety of any
person in the coal or other mine, and the operator of such mine
shall obtain approval of such representative ... of any plan to
recover any person in such mine or to recover the coal ... or return
affected areas of the mine to normal.

31 FMSHRC 292

II. BRIEF SUMMARY OF THE PARTIES' ARGUMENTS
A. West Ridt:e
West Ridge argues that the Secretary's decision to modify the section 103(k) order to
prohibit the company from mining Panel 13 inby crosscut 32 was unreasonable and was an abuse
of the Secretary's discretion. The evidence shows that mining Panel 13 by remote control was
very successful because it greatly reduced the exposure of miners to hazards presented by
bounces. The parties reached agreement on February 7 that West Ridge would try to mine Panel
13 by remote control under an amended roof control plan and that MSHA would evaluate the
plan to determine feasibility and exposure. All of the credible evidence shows that the amended
plan worked better than expected and that the exposure of miners to the hazards of bounces was
greatly reduced. West Ridge employees were shocked when they learned that all mining in Panel
13 had to stop. MSHA never evaluated the amended roof control plan that authorized remote
mining and arbitrarily decided that, because the amended plan could not assure that there would
never be any more bounces on the tailgate end of the face, mining should cease in Panel 13.

On the morning ofFebruary 13, without any warning, MSHA initiated a conference call
to advise West Ridge that it would not be permitted to mine past crosscut 32 in Panel 13. This
call included high level MSHA officials such as Ed Clair and Kevin Stricklin. Three local
MSHA inspectors had been closely monitoring the longwall section, yet MSHA initiated this
conference call after the District Manager had a conversation that morning with only one of these
three inspectors. He made no effort to contact the other inspectors or to evaluate the
effectiveness of the remote mining system in an objective manner.
The Secretary exceeded her authority when MSHA issued Modification No. 8454817-05.
It was an unreasonable use of her power under section 103(k). The initial withdrawal order was
issued on January 31 because an outburst had occurred between shields 134 and 144. The order
was issued to assure the safety of all persons until an ..examination and/or investigation of the
bounce/outburst area is made to determine that the area is safe." The company instituted
significant technological changes to prevent future injuries. About 95 percent of face bounces
occur when the shearer is cutting coal in the tailgate area. The changes instituted by West Ridge,
with the approval ofMSHA, kept all miners out of the tailgate area as the shearer was cutting
coal in that area. The area where the January 31 outburst occurred was 240 feet away in the gob
by the time the fifth modification to the order was issued. As a consequence, the area cited in the
order was safe. There was no legal justification to modify the order to prohibit further mining. If
MSHA had a problem with the amended roof control plan, it should have sought further
negotiations or issued a section 104(a) citation, rather than modify the 103(k) order in an illegal
manner.

B. Secretary of Labor

31 FMSHRC 293

The Secretary argues that she has plenary power to issue and modify section 103(k)
orders. The Commission cannot and should not disturb her authority unless she has abused her
discretion. It is not improper for MSHA to use her authority under section 103(k) to require a
mine operator to implement a new roof control plan to ensure the safety of miners. There are no
time limitations on the Secretary's use of modifications to section 103(k) orders. MSHA
performed an evaluation of the amended plan and determined· that it did not adequately protect
miner safety. On that basis, MSHA concluded that the subject modification to the order of
withdrawal was necessary. MSHA is not required to interview everyone who was involved in
the evaluation or to explain why it gave weight to some facts and not others. If some evidence
supports MSHA's decision to issue a section 103(k) order or to modify an existing order, it acted
reasonably and her decision cannot be overturned by the Commission. The inspector that the
district manager interviewed on the morning of February 13 told him that the "energy level"
along the face was increasing and that there were numerous bumps and bounces along the face
during the graveyard shift of February 12-13. It was reasonable for MSHA to rely on this
information, along with other information it received, when it decided to shut down the longwall.
In short, MSHA exercised its professional judgment that the amended roof control plan could not
safely be used in Panel 13.

ID. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A. Discussion of the Evidence.
At the hearing, everyone agreed that, because the mine operates under deep cover, it is a
bounce-prone mine. A mine operator must report a bounce to MSHA under section 50.10 if
there is a "coal or rock outburst that causes withdrawal of miners or which disrupts regular
mjning activity for more than an hour." (30 C.F.R. § 50.2(h)(9)). Including the bounce on
January 31, 2009, West Ridge has experienced 15 reportable bounces since January l, 2003.
(GX-1 & GX-2). All but two of these bounces have been on the tailgate side of the longwall. In
addition to these reportable bounces, the mine experiences smaller events that need not be
reported. These events may make noise and may include outbursts of coal, but they do not need
to be reported if nobody is injured or if mining is not disrupted for at least an hour. If there is a
violent outburst of coal or rock, mine personnel consider the event to be a bounce. If there is no
oqtburst of coal or rock, or if coal merely sluffs off the face into the panline after a noise, it is not
considered to be a bounce. 2 Because the mine is under deep cover, the longwall face frequently
makes noises and coal falls from the face on a regular basis. Indeed, miners get worried if the
face is too quiet because it may mean that the pressure is not being released from the coal which
could portend a larger boUQ.ce in the future.

2

The panline carries the freshly cut coal to the stage loader at the headgate where the coal
is transferred onto a belt for transportation out of the mine. The panline is adjacent to the coal face.
31 FMSHRC 294

In general, MSHA had not taken any enforcement action following bounces at the mine
because such events are to be expected. MSHA became quite concerned in late January 2009,
however, because the mine experienced three reportable bounces within a seven-day period.
Peter Del Duca of the District 9 office visited the mine following this bounce. He took
photographs which showed that a large amount of coal was expelled from the face near Shield
143.3 (GX-3). Because bounces are more common on the tailgate end of the longwall, West
Ridge had built protective guards so that the face, shearer, and the panline are behind these
guards. These guards consist of metal framing, called the pig pen, and three-quarter inch belting.
(CX-16). The walkway used by miners working in the longwall are on the other side of these
guards. The idea of the guarding is to protect miners from coal bursts. As Mr. Del Duca noted,
however, employees can be injured by the concussion from the noise or movement of coal. In
addition, ifthe ground shakes, a miner can be knocked off his feet. The photographs taken by
Del Duca show that the belting prevented the coal that was expelled from the face from entering
the walkway. The belting was severely deformed, however, and protruded into the walkway:
(GX- 3b & 3c).

Following the second bounce, Michael Gauna of MSHA Technical Support visited the
mine. He took photographs of what he observed. (GX-11). He noted that the bounce damaged
the cable tray. (GX-11 d). The pig pens and belting material kept coal from entering the
walkway.
A miner suffered a fractured rib and a partially deflated lung when another bounce
occurred on January 31. He was not hit by any coal. Rather, either the floor vibrated or the
concussion from the burst knocked him down and he fell into a shield. After the third bounce,
District Manager Davis quickly became convinced that the West Ridge Mine should not be
permitted to continue mining Panel 13 and should move on to Panel 14. Kevin Stricklin agreed
with Davis on this issue. A meeting was held among mine officials and District 9 personnel to
discuss the situation. At this meeting, company management asked if the company could try to
develop a system where the shearer could be operated by remote control when it was cutting coal
at the tailgate end. The idea behind this proposal is that, because most of the bounces occur as
the shearer is cutting coal at the tailgate, the company would try to develop a system in which the
miners would not need to be in the tailgate area as coal is being cut. (Ordinarily, two miners
walk along the entire length of the walkway as they operate the shearer.) West Ridge asked to
test this remote system because it wanted to see if coal could be safely mined with the aim of
using the system to mine all of Panel 13. As stated below, MSHA eventually granted the
company's request, but it made no commitment that i! would be allowed to mine beyond crosscut
32. MSHA preferred that the company remove the longwall equipment and proceed to Panel 14
as soon as possible. In preparation for this experiment, MSHA issued Modification No.
8454817-03. (JX-19).

3

The shields provide roof support along the walkway in the longwall. The shields are
numbered 1through148. The shields that are considered to be in the tailgate area are between 126
and 148.
31 FMSHRC 295

The company's attempt to develop a system to mine the tailgate end of the face by remote
control was a major undertaking that had never been attempted at any mine in the country. For
example, it required changes be made by Joy Manufacturing Company in the program software.
The shields normally move up a few at a time but a large number of shields had to move if it was
operated remotely. The speed of the shearer had to be changed in the computer program to
automatically slow it down in the tailgate area. fu addition, more lighting was installed, the cowl
for the shearer was painted with a reflective paint, and cameras were installed. Bruce Hill
testified that these modifications were made at great cost.

In order for West Ridge to use the remote mining method, an amendment to the roof
control plan had to be approved. The company submitted a plan to provide for remote mining on
February 5. (JX-20). The plan included the elements that had been discussed at the meeting on
February 2. When cutting the tailgate zone from shields 126 through 148, no miners would not
be permitted to travel past shield 125. The shearer would travel at a speed of 20 feet a minute
while in the tailgate zone and 32 feet a minute along other areas of the face. The shearer would
be operated from shield 125 by radio remote control when coal was cut in the tailgate zone. Pig
pens and belting guards would be installed all along the tailgate zone up to shield 145. A record
book ("log book") would be kept at shield 125 to record such information as the name of any
miner who traveled into the tailgate zone and the purpose for each trip. Any bounces were also
to be recorded. No miners would be permitted in the tailgate zone for 30 minutes after the coal
was cut.
In a letter from District Manager Davis, dated February 6, 2009, MSHA rejected the
proposed amendment to the roof control plan. One reason that the plan was not approved was
that the 30-minute waiting period was too short. The rejection letter also stated that the "plan
should state that the purpose of this plan is to evaluate the use of remote systems with the intent
of reaching the next available crosscut to extract the longwall face." (JX-21).
On February 7, the parties held a five-hour meeting at the district office to discuss the
plan amendment. West Ridge repeatedly asked to be permitted to mine the remainder of Panel
13, if the remote system performed well. Although MSHA personnel did not make any promises,
it also indicated that, if the system worked, it might permit mining to continue beyond crosscut
32. West Ridge submitted a new amended plan and it was approved on February7.4 (JX-22).
The amended plan did not specifically state that the intent was to reach the next available
crosscut so that the longwall equipment could be removed. The modification to the 103(k) order
allowed the implementation of the February 7 plan to retreat the longwall to crosscut 32. It went
on to state that, during this time, the performance of the plan would be evaluated to determine
feasibility and exposure. (JX-23) ..

4

Kevin Stricklin did not become aware of this amended plan until February 9 and he was
surprised because he thought that the company had agreed to remove the longwall equipment from
·
the face as soon as possible.
31 FMSHRC 296 ·

West Ridge started mining with the remote system on february 8. All of the West Ridge
witnesses testified that the remote system operated better than they expected. They had been
worried that operating the shearer would be difficult or impossible when it reached the very end
of the tailgate near Shield 148. They also noted that miners were no longer exposed to the
hazards associated with bounces because miners were prohibited from entering the tailgate area
while the shearer was cutting coal there. MSHA sent three inspectors to the mine to monitor the
longwall starting on February 10. Each inspector was on the longwall for his assigned shift for
three days. The inspectors were Randy Gunderson, Jim Martin, and Ronald Paletta. Inspector
Paletta worked the graveyard shift which started at 11 :00 p.m. Only Inspector Paletta testified at
the hearing.
On February 13, 2009, after he left the mine, Inspector Paletta called District Manager
Davis. He told Davis that the longwall face was experiencing coal bursts, bounces, and bumps
all along the face. He noted that there was a significant increase in the amount of energy being
released along the face when compared to previous shifts. He prepared a memo on the subject.
(GX-19). He was concerned that this increased activity would affect the ability of miners to exit
the panel down the tailgate entry.
Davis testified that he had previously received a copy of part of the log book that had
been kept at shield 125. He testified that he was surprised by the number of times people had
traveled into the tailgate zone after February 8. (GX-18; CX-18). He believed that this exposed
miners to· the hazards that remote mining was designed to prevent. Men went into the tailgate
zone to perform such work as cleaning rubble, making repairs, and performing examinations.
Davis called Kevin Stricklin to discuss the matter and a conference call was initiated. The call
involved a number of people including Stricklin, Davis, Ed Clair, Paletta, and Michael Gauna.
The other two inspectors who monitored the performance of the remote mining system were not
consulted by Davis or anyone else from MSHA. Paletta related that the number of bounces
appeared to be increasing and that they were also occurring in areas that were not in the tailgate
zone. Stricklin had also reviewed the fog book and he was concerned about the number of times
miners went into the tailgate zone. He was also concerned about the number of bounces that had
been occurring. At this point, it was agreed that the remote mining system was not adequately
protecting miners and that no mining was to occur past crosscut 32 in Panel 13.
Company witnesses testified that MSHA failed to properly evaluate the feasibility of the
remote mining system and the exposure of miners to bounces. Several witnesses who worked the
graveyard shift with Paletta directly contradicted his testimony. Ernie Martinez, a longwall
production foreman, worked the same graveyard shifts as Paletta. He testified that there were no
bounces during his shifts. There were some hits and noises but those always occur along the
face. No coal was expelled from the face and there were no outbursts of coal. Coal would sluff
off after a hit and fall· into a panline, but that is a regular occurrence. During the graveyard shift
in the early morning of February 13, the shearer had stopped near shield 125. Paletta was sitting
on the shield and Martinez was leaning on a piece of equipment. There was a loud noise which
startled the group of men. The shearer was not operating so the area was otherwise quiet. Paletta

31 FMSHRC 297

testified that he.said to Martinez, "that was a good bounce," to which Martinez replied, "Yea, it
was a good bounce." (GX-19). Martinez denied this conversation and testified that when he
asked the inspector to rate the little bump. from 1 to I 0 the inspector said it was a 2.
Adam Mann, an assistant shift foreman, testified that nothing that happened on that same
graveyard shift of February 13 was abnormal. He said that the conditions were not at all like the
situation on January 24 when there was a major outburst. Mann could not recall any bounces at
the headgate. On several occasions, Paletta would ask the person keeping the log book (tlie log
book "umpire") if he had recorded a particular bump or bounce. Mann testified that Paletta
would frequently tell the umpire to record events that were not even close to being bounces.
Unless there is an outburst of coal, the event should not be considered a bounce. The log book
shows that many more events were recorded as bounces when Paletta was the MSHA
representative than when the other two inspectors were present. Mann believed that Paletta was
very uncomfortable being on the longwall face and that he was jittery while he was there. Mike.
Allred, a longwall production coordinator, testified he heard thumping on the graveyard shift, but
no bounces. He admitted that there was a bounce on the day shift on February 13, after Paletta
had left the mine. That bounce did not need to be reported to MSHA under section 50.10.
West Ridge witnesses also testified that, as the longwall approached crosscut 32, it was
traveling under a ridge in the mountain. (GX.,. l ). The longwall was in an area where the stresses
would be the highest. Once the longwall retreated beyond crosscut 32, the cover would not be as
deep and the stress would be reduced. Dr. Ping testified that he believes that there were several
reportable bounces in late January because there was a roof overhang near the tailgate comer at
the time. 5 In other words, the area in the gob near this comer was not caving completely. He
attributed this overhang to the fact that, due to geologic conditions, Panel 11 was only partially
mined. 6 1d. He testified that better caving is achieved if the gob covers a large area that is not
interrupted by intrusions of unmined coal. He also testified that the area under a ridge is a .
t11m.sition zone that puts stress on the tailgate side of the panel being mined and that, as mining
progresses past this transition zone, the number of bounces. or bumps should decrease.
Bruce Hill and other witnesses testified about the ongoing negotiations between MSHA
and the company concerning the method of mining once Panel 14 has been mined. As stated
above, each panel bring mined is adjacent to the previous one with yield pillars in between. This
is known as panel-panel mining. It is apparent that MSHA wants the company to place a barrier
of coal between each panel, in a system known as panel-barrier-panel mining. Although that is

5

Dr. Ping is a well-recognized expert in ground control in coal mines. He has authored
textbooks on coal mine ground control and longwall mining that are used in mining engineering
courses. (CX-2).
6

The coal seam at West Ridge has geologic faults and other structures that can interfere with
mjning. There is also sandstone present, which can adversely affect ground control.

31 FMSHRC 298

not an issue in this case, Hill suggested that MSHA 's actions can only be understood by taking
this dispute into consideration. 7
Mr. Hill and other West Ridge witnesses testified that, during the negotiations over the
amended roof control plan for Panel 13 to allow remote mining, the company made clear its
objective to mine the remainder of Panel 13. The company would have only mined about half
the panel if it could not retreat past crosscut 32. Although MSHA did not make any promises,
District Manager Davis gave the impression that, if remote mining worked, West Ridge would be
able to mine beyond crosscut 32. It was on this basis that Mr. Hill agreed to try the remote
mining system. He testified that if MSHA had told him on February 7 that the company would
not be permitted to mine beyond crosscut 32, it is likely that he would have taken steps to have
the longwall equipment removed so that the company could begin mining Panel 14. (The
company would have been required to have the roof control plan amended to allow the extraction
of the longwall equipment). Hill testified that, because the roof in a coal mine deteriorates when
mining stops, the company may not be able to safely remove the longwall equipment at the
present time. At best, he believes that it will be able to remove some of the equipment near the
headgate. 8

Mine Superintendent Leonard testified that West Ridge has taken extraordinary steps to
protectthe safety of miners working in the longwall section. Indeed, Mr. Del Duca told him that
no othercoal mine in the country is doing more. In addition to the actions discussed above, such
as the installation of pig pens and belting in the tailgate zone, the company requires all of its
miners working in the longwall to wear what it colloquially calls "riot gear." (CX-16). This gear
includes a full face mask, chest protector, and knee, shin, and metatarsal protection. The ·
company prohibits anyone from entering the tailgate zone during production, it slows down the
rate of production, and it does not allow anyone in the tailgate zone until 45 minutes after coal
has been cut to allow the roof to settle. These provisions are in the amended roof control plan.
West Ridge witnesses testified that Davis and Stricklin should not have been alarmed by
the fact that miners traveled into the tailgate zone. The men entered the tailgate in accordance
with the roof control plan to perform required tasks and conduct required MSHA examinations
and tests. Company witnesses testified that 90 to 95 percent of all bounces occur when coal is
being cut in the tailgate zone. As a consequence, with all of the protective measures taken. by the ·

7

West Ridge left a barrier of coal between Panels 13 and 14. Its witnesses stated that this
barrier was placed there to better control water in the mine and ventilation of the panels.
8

Because both parties to this proceeding asked that my decision be issued as quickly as
possible, I wrote this decision before the expedited transcript had been prepared. As a consequence,
I could not include page references to the transcript.
31 FMSHRC 299

company, miners who work in the tailgate zone 45 minutes or more after the coal is cut are not in
serious danger. 9
Several West Ridge witnesses, including Leonard, Wilson, Mann, and Allred, testified
that they discussed the remote mining system with Inspectors Gunderson and Martin. These
discussions occurred between February 10 and February 13. The witnesses testified that these
inspectors had a more positive attitude toward the safety of the remote mining process than
Inspector Paletta. They also said that these inspectors were surprised and upset that they were
not consulted before MSBA decided that remote mining was not safe. Hill and Leonard also
testified that the objective of the test of remote mining was to see if miners could be protected
from bumps, bounces, and outbursts by limiting their exposure and instituting the administrative
controls discussed above. Measured by this standard, the test was a complete success. They
strongly believe that MSHA wrongly rejected the idea of remote mining, as described in Hill's
letter to Davis dated February 15, 2009. (CX-19).

B. Analysis of the Issues.
The parties do not-dispute that MSHA had the authority to issue the 103(k) order on
January 31, 2009. There had been a reportable accident at the mine. The dispute concerns
MSHA's authority to issue Modification No. 8454817-05. (JX-25). West Ridge argues that the
original order was issued because of conditions that existed on January 31 in the tailgate area.
As stated above, the longwaJ,l has mined well beyond the area of concern and the company has
instituted significant changes that will prevent future injuries. As a consequence, MSHA was
required to terminate the l 03(k) order and it did not have the authority to extend it to cover a new
situation.
Although it is true that the longwall had retreated past the area where the January 31
bounce occurred, I find that it was within MSHA authority to keep the section l 03(k) order in
force until it was satisfied that the hazards presented by bounces in the tailgate were fully
addressed. The fact that mining had progressed beyond the area of the original accident does not
end MSHA's responsibility to "insure the safety" of miners from the same conditions along the
tailgate further inby. (Section l 03(k)). Section 103(k) allows MSHA to issue such orders as it
deems appropriate following an accident until it is convinced that it can safely return the area to
normal. This authority includes the power to issue modifications to the original order. The
hazard presented in this case was not stationary, but retreated inby with the longwall along the
tajlgate side. As a consequence, I do not agree with company's argument on this issue.
West Ridge also argues that the dispute in this case is really about the mine's amended
roof control plan. IfMSHA believed that the plan was not being followed or that it should be
modified, it should have negotiated with West Ridge and, if such negotiations were not

9

Ifminers must leave the travelway in the tailgate zone to work behind the pig pens and belt
guards, special measures are taken that the company believes protects the miners.
31 FMSHRC 300

successful, it should have issued a citation under section 104(a). By unlawfully using a section
103(k) order in this instance, the Secretary is denying the company the opportunity to litigate the
issue on the merits. The Secretary's burden of proof is significantly reduced when litigating a
section 103(k) order.
As I stated at the hearing, I am troubled by the Secretary's use of a section 103(k) order to
demand compliance with a roof control plan. MSHA, in essence, rejected the continued use of
the amended roof control plan when it issued Modification No. 845481 7-05. It is important to
note that MSHA did not consider the situation in Panel 13 to constitute an imminent danger
because a section 107(a) order was not issued and MSHA allowed West Ridge to continue
mining. MSHA used what it considers to be its plenary power under section 103(k) to force
West Ridge to abandon Panel 13 without affording the company the opportunity to negotiate the
issue or obtain meaningful review before the Commission. I recognize that the previous
modification of the 103(k) order stated that it was only issued to allow remote retreat mining to
35 feet inby crosscut 32. 10 That provision was included, however, with the caveat that the plan
would be evaluated to determine feasibility and exposure.
Congress granted-the Secretary wide discretion under section 103(k). The Commission
has the authority to review section 103(k) orders but this authority is limited to determining
whether MSHA acted reasonably under the circumstances. See e.g. Buck Mountain Coal Co., 15
FMSHRC 539 (March 1993) (ALJ). I have no doubt that the MSHA officials who participated in
the decision to halt mining in Panel 13 did so because they believed that the safety of the miners
could not be adequately protected under the amended roofcontrol plan. The issue is whether it
was reasonable for MSHA to modify the section 103(k) order rather than issue a section 104(a)
citation and, if necessary, a 104(b) order in this case. MSHA believed that the hazard that caused
the accident had not been mitigated. Davis and Stricklin were told by fuspector Paletta that
bounces were continuing, miners had to enter the tailgate zone more often than originally
believed, and miners might not be able to exit the tailgate entry in the event of an emergency. 11
fu addition, the log book contained information that convinced Davis and Paletta that the
conditions at the tailgate were too hazardous for miners. Thus, although I am troubled by
MSHA' s use of its authority under section 103{k), I hold that it was reasonable for it to issue the
subject modification to the order given the unpredictable nature of bounces and the fact that the
previous modification only authorized mining up to crosscut 32. The legislative history of
section I 03(k) is instructive. The Senate report states:
The unpredictability of accidents in mines and uncertainty as to the
circumstances surrounding them requires that the Secretary or his
authorized representative be permitted to exercise broad discretion

10

The "35 feet inby" language was included because mesh would have to be bolted to the
roof along the face at crosscut 32 ifthe company were to attempt to remove the longwall equipment.
11

Both designated escapeways were in the headgate entries.
31FMSHRC301

in order to protect the life or to insure the safety of any person.
The grant of authority under section [103(k)] to take appropriate
actions and ... to issue orders is intended to provide the Secretary
with flexibility in responding to accident situations, including the
issuance of withdrawal orders.

(S. Rep. No. 95-181, at 29 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human
Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 617 (1978).
Based on the above, I reject West Ridge's argument that the Secretary was required to address
this issue through a section 104(a) citation.
I am also troubled by the fact that MSHA did not carefully evaluate the feasibility of the
amended roof control plan to see whether it protected miners from being exposed to the hazards
of bumps and bounces. A reasonably prudent person would interpret the term "evaluate" to
include more than what occurred in this instance. Based on the input from one inspector, MSHA
determined, in a conference call, that mining should not progress beyond crosscut 32. MSHA
did not seek the input of the other two inspectors or evaluate the log book in an analytical
manner. More importantly, MSHA did not seek any input from the company to obtain
information that might address the concerns that MSHA had. As a consequence, West Ridge
managers were honestly surprised when they were told that Panel 13 could not be mined beyond
crosscut 32. (CX-19). February 13 was a Friday and the longwall reached that crosscut over the
weekend. With the exception of some development mining using a continuous mining machine,
the mine has been idle since that weekend and most miners have been :furloughed.
As stated above, West Ridge devoted a considerable amount of energy, time, and money
to try to develop a remote longwall system that would protect miners. MSHA knew about these
undertakings and District Manager Davis seemed interested in seeing whether the system would
work. It is rather surprising that MSHA would shut down the longwall in Panel 13 without a
more thorough evaluation of the system. For example, both Davis and Stricklin reviewed the raw
data in the log book and drew some important conclusions from the information provided
withoutdiscussing this information with company officials. At the hearing, West Ridge
employees testified that some of the conclusions dr:awn from this review of the raw data were
erroneous and that other more logical conclusions could also be drawn from the data. 12 West
Ridge was never given the opportunity to discuss the information in the log book with MSHA
before it made the decision to issue the contested modification. MSHA did not discuss the issues
with Inspectors Gunderson and Martin to see if they agreed with Paletta. West Ridge argues that
the decision to disallow remote control mining really came from MSHA headquarters in
.Arlington and that the decision was more politically based than the agency is willing to admit. It

12

For example, an extraordinary number of the reported bounces occurred when Inspector
Paletta was at the mine. In addition, miners were only in the tailgate zone when the shearer was n:ot
operating. The company was never able to discuss with MSHA how these facts affect the safety of
miners working on the longwall.

31 FMSHRC 302

is clear from Administrator Stricklin's testimony that he was not really in favor of the remote
mining test and believed that the longwall equipment should have been removed from the panel
at the earliest possible opportunity.
I find that, although MSHA did not throughly evaluate the effectiveness of the remote
longwall system or whether the system adequately protected miners, MSHA's decision to issue
the subject modification was reasonable. The process that MSHA used in evaluating the
effectiveness of the remote mining system was flawed, but MSHA's concerns were genuine.
MSHA could have initially determined on February 7 that it would not consider testing a remote
mining system in an amended roof control plan. For example, one reason that it ultimately
determined that it would not permit West Ridge to continue operating in Panel 13 under the
amended roof control plan was because, under section 75.362(d), :frequent tests for methane are
required at the working face. This standard would require a miner to enter the tailgate zone on a ·
regular basis. Davis testified that MSHA failed to take this safety standard into consideration
when the February 7 amended roof control plan was approved.
In addition, although the evaluation was flawed, as described above, MSHA could have
and likely would have issiied the same modification had Davis first discussed the matter with the
other two inspectors and reviewed the log book with company management. MSHA officials
relied heavily on the opinions of its own employees including Del Duca and Gauna, who have
extensive roof control experience. They had both been to the mine and had observed firsthand
what can happen if there is a coal outburst. Throughout the hearing, witnesses for both MSHA
and the company testified that bumps, outbursts, and bounces are unpredictable. Stricklin, Davis,
and other MSHA officials were concerned that a bounce could occur when a miner was in the
tailgate area and he could be injured despite all of the administrative controls that West Ridge
had in place. It is quite clear from the record that discussions with company officials would not
have eased these concerns. West Ridge did not, during the period between February 8 and 13,
ask the district manager how the amended plan would be evaluated but .it simply assumed that the
plan would be approved if the company could get the remote mining system to operate.

I also note that, if I were to determine that the Secretary exceeded her authority under
section 103(k) and I vacate Modification No. 8454817-05 on that basis, Modification No.
8454817-04 would remain in place. That modification only authorized West Ridge to mine up to
crosscut 32, a point the longwall has now reached. I could only order MSHA to again evaluate
the mine's experience under the February 7 roof control plan amendments to determine
feasibility and exposure. I reject the argument of West Ridge that, ifl were to vacate the fifth
modification, the mine would be authorized to resume mining Panel 13. I do not have the
authority to review or approve roof control plans or to order MSHA to approve such plans.
Commission administrative law judges have vacated orders when an official from the
MSHA district office dictated that an order be issued when such official was not at the mine. See
Jim Walter Resources, Inc., 29 FMSHRC 1043, 1047-48 (Nov. 2007) (ALJ) (citing Cumberland
Coal Resources, LP, 28 FMSHRC 545, 555-56 (Aug. 2006) (imminent danger order). Although

31 FMSHRC 303

Modification No~ 8454817-05 was issued by Inspector Martin, it is clear that he did so at the
direction of the district office. 13 In this instance, the matter at issue was directly rela~ed to ground
control, an area in which district offices are intimately involved during the plan approval process.
Thus, I find that the Secretary did not abuse her discretion when Davis, after consulting with Del
Duca, Gauna, and Paletta, determined that the subject modification should be issued. Although
Davis had not been to the mine in 2009, he relied on information provided by officials who were
very familiar with ground control at the mine.
In conclusion, I find that the Secretary acted reasonably when she issued Modification
No. 8454817-05, given the broad discretionary authority granted the Secretary under section
103(k) and the unpredictable nature of bounces, bumps, and outbursts at this mine. Despite the
problems in the manner in which MSHA evaluated the amended roof control plan, noted above,
the explanation provided by District Manager Davis for the subject modification in his letter of
February 13 was reasonable. (GX-17). I recognize that reasonable people could disagree
whether the amended roof control plan was adequately protecting miners from bounces. The
company strongly believes that the plan worked better that expected. I only have jurisdiction to
determine whether the Secretary acted reasonably when she issued the subject modification to the
section 103(k) order. I cannot substitute my judgment for hers. On this basis, I find that the
Secretary did not abuse her discretion and I affirm the modification of the order.

IV. ORDER
For the reasons set forth above, the Notice of Contest is DENIED, Modification
No.8454817-05 is AFF1RMED, and this proceeding is DISMISSED.

Richard W. Manning
Administrative Law Judge:;--...-

Djstribution:
Kevin N. Anderson, Esq., and Jason W. Hardin, Esq., Fabian & Clendenin, P.C., 215 State St.,
Suite 1200, Salt Lake City, Uf 84111-2323 (E-mail and Certified Mail)

13

Although Inspector Martin was apparently unhappy that he was not consulted before the
decision was made to halt mining in Panel 13, there.is no evidence that he ultimately disagreed with
this decision.
31 FMSHRC 304

•

Daniel W. Wolff, Esq., Crowell & Moring, LLP, 1001 Pennsylvania Ave, Washington, DC
20004-2595 (E-mail and Certified Mail)
Timothy S. Williams, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202-5710 (E-mail and Certified Mail)
Derek Baxter, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd, 22nd
Floor, Arlington, VA 22209-2296 (E-mail and Certified Mail)
RWM

31 FMSHRC 305

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

February 26, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2008-804
A.C. No. 46-04168-142950

v.
· WOLF RUN MINING COMPANY,
Respondent

Sentinel Mine

ORDER GRANTING JOINT MOTION FOR FINAL
DECISION REGARDING CITATION NO. 6606199
AND
DECISION APPROVING SETTLEMENT FOR
CITATION NOS. 6606187 AND 6605283
Before: Judge Feldman

I. Background
Safeguards, issued by Mine Safety and Health Administration (MSHA) inspectors
pl,lI'suant to section 314(b) of the Federal Mine Health and Safety Act of 1977, as amended
("the Act"), address conditions in a particular mine that pose hazards associated with the
transportation of miners and materials. 30 U.S.C. § 874(b). Section 75.1403 of the Secretary's
mandatory safety standards repeats verbatim section 314(b) of the Act. 30 C.F.R. § 75.1403.
Section 75.1403-1 of the Secretary's regulations sets forth procedures for the issuance of
safeguards. 30 C.F.R. § 75.1403-1. Sections 75.1403-2 through 75.1403-11 of the regulations
describe the criteria by which MSHA inspectors are to be guided in issuing and enforcing
safeguards on a mine-by-mine basis. 30 C.F.R. §§ 75.1403-2 through 75.1403-11.

On June 27, 2000, the Secretary issued Notice of Safeguard No. 7095089 at the
Sentinel Mine operated by Wolf Run Mining Company ("Wolf Run"). Safeguard No. 7095089
cited the criteria in section 75.1403-S{j) that requires suitable crossing facilities where persons
cross over or under moving conveyor belts.
Citation No. 6606199, a subject in this proceeding, was issued at WolfRun's Sentinel
facility on January 23, 2008. The citation alleged a violation of Safeguard No. 7095089 because
a suitable crossing facility was not provided to enable miners to safely cross over a moving
conveyor belt. The safeguard violation in Citation No. 6606199 affected one person, and it was
designated as significant and substantial ("S&S") based on the Secretary's assertion that the cited
31 FMSHRC 306

condition was "reasonably likely'' to contribute to an accident that would result in a serious
injury. 1 The safeguard violation was attributable to a moderate degree of negligence.
The Secretary has proposed a civil penalty of $1,304.00 for Citation No. 6606199.
II. WolfRun's Motion
Section 104(d) of the Act specifies that only mandatory safety standards can be
designated as S&S. 30 U.S.C. § 814(d)(l). Wolf Run asserts that safeguard violations citing
safeguard criteria provisions cannot be designated as S&S because the safeguard criteria in
sections 75.1403-2 through 75.1403-11 are not mandatory safety standards. Consequently, on
November 25, 2008, Wolf Run filed a Motion for Partial Summary Decision concerning the S&S
designation in Citation No. 6606199 based on its contention that neither the underlying
Safeguard No. 7095089 allegedly violated, nor section 75.1403-5(j), are mandatory safety
standards as contemplated by section 104(d)(l) of the Act. The Secretary filed her opposition to
WolfRun's motion on December 15, 2008.

ill. Order Denying WolfRun's Motion
On December 18, 2008, I issued an Order Denying WolfRun's Motion for Partial
Summary Decision. 30 FMSHRC 1198. As a general proposition, safeguards are "interim
mandatory safety standards" under Title ill of the Act. Wolf Run relies on the statutory
language in section 104(d) that only mandatory safety standards can be designated as S&S.
However, WolfRun's reliance is misplaced because it fails to recognize the relevant dispositive
term "mandatory safety standard" has different contextual meanings. Title I of the Act
authorizes the Secretary to promulgate mandatory safety standards by means of notice and
comment rulemaking proceedings. However, the statutory definition of ''mandatory safety
standards" in section 3(1) of the Act includes the "interim mandatory safety standards" in
Title ill. 30 U.S.C. § 802(1). Thus, safeguards may be enforced as mandatory safety standards
even though they were not promulgated through a Title I rulemaking.
Specifically, the Order determined that safeguard violations, issued after an initial
notice of safeguard has been issued, are "mandatory safety standards," as defined by the Act,
that can be properly designated as significant and substantial violations. Id. at 1205.
The Order noted that the safeguard violation in Citation No. 6606199 was issued pursuant to
section 75.1403 of the regulations that repeats section 314(b) of the interim safety standards in
Title ill. Id. at 1200. Thus, WolfRun's motion was denied based on the statutory definition of
"mandatory health and safety standards" in section 3(1) that includes "interim mandatory safety
standards." Id. .at 1205.

1

Generally speaking, a violation is S&S if it is reasonably likely that the hazard
contributed to by the violation will result in an accident causing serious injury. Cement Division,
National Gypsum, 3 FMSHRC 822, 825 (Apr. 1981 ).
31 FMSHRC 307

IV. The Parties' Stipulations
The parties now have filed a February 19, 2009, Joint Motion for Final Decision
with respect to Citation No. 6606199. The parties note that Wolf Run intends to see}\ review
of my December 18, 2008, interlocutory Order regarding the propriety of designating safeguard
violations as S&S because of conflicting decisions issued by Judge Zielinski. See Big Ridge,
Inc., 30 FMSHRC 1172 (Nov. 24, 2008); Cumberland Resources LP, 30 FMSHRC 1180
(Dec. 4, 2008). In an effort to expedite the appellate process, the parties have entered into
stipulations resolving the issues of the fact of the violation, the gravity of the. violation, the
applicability of the civil penalty criteria, and the appropriate civil penalty to be accessed for
Citation No. 6606199.
Specifically, the parties stipulate that while inspecting along the No. 5 coal conveyor belt
on January 23, 2008, MSHA Inspector Jeffrey Maxwell issued Citation No. 660619 after he
determined that someone had crossed under the return belt that was suspended 24 inches above
the mine floor. There was no belt crossover provided at this location. To terminate the citation,
the Wolf Run installed an aluminum crossover at the cited location.
The parties further stipulate that the cited safeguard violation was serious in gravity, and
that it was reasonably likely to contribute to a "lost work days or restricted duty'' injury for one
miner. The parties agree that the cited violation was attributable to a moderate degree of
negligence.
With respect to the appropriate civil penalty, the parties stipulate, that Wolf Run is a large
mine operator, and that the proposed penalty will not affect its ability to continue in business.
It has neither been contended nor shown that the cited violation was not abated in a. timely
manner, or that Wolf Run' s history of previous violations is an aggravating factor warranting an
increase in the proposed penalty. Finally, the parties agree that the $1,304.00 civil penalty
proposed by the Secretary for Citation No. 6606199 is appropriate.
V. S&S Issue
Consequently, the only outstanding issue is whether Citation No. 6606199 is properly
designated as significant and substantial.. The case law concerning what constitutes an S&S
violation is well settled. As a general proposition, a violation is properly designated as S&S if,
based on the particular facts surrounding that violation, there exists a reasonable likelihood that
the hazard contributed to by the violation will result in an injury or an illness of a reasonably
serious nature. Cement Division, National Gypsum, 3 FMSHRC at 825. In Mathies Coal Co.,
6 FMSHRC 1(January1984), the Commission explained:
In order to establish that a violation of a mandatory safety standard is significant
and substantial under National Gypsum, the Secretary of Labor must prove:
(1) the underlying violation of a mandatory safety standard; (2) a discrete safety

31 FMSHRC 308

hazard -- that is, a measure of danger to safety -- contributed to by the violation;
(3) a reasonable likelihood that the hazard contributed to [by the violation] will
result in an injury; and (4) a reasonable likelihood that the injury in question will
be of a reasonably serious nature.
6 FMSHRC at 3-4; see also Austin Power Inc. v. Secretary, 861F.2d99, 103-04 (5th Cir. 1988),
affg 9 FMSHRC 2015, 2021(December1987) (approving Mathies criteria).

In US. Steel Mining Co., Inc., 7 FMSHRC at 1129, the Commission explained its
Mathies criteria as follows:
We have explained further 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. US. Steel
Mining Company Co., Inc., 6 FMSHRC 1866, 1868 (August 1984) (emphasis in
original).
The Commission subsequently reasserted its prior determinations that as part of any S&S
finding, the Secretary must prove the reasonable likelihood of an injury occurring as a result of
the hazard contributed to by the cited violative condition or practice. Peabody Coal Company,
17 FMSHRC 508 (April 1995); Jim Walter Resources, Inc., 18 FMSHRC 508 (April 1996).
Resolution of whether a particular violation of a mandatory standard is S&S in nature
must be made assuming continued normal mining operations. U.S. Steel Mining, 7 FMSHRC
at 1130. Thus, consideration must be given to both the time frame that a violative condition
existed prior to the issuance of a citation, and the time that it would have existed if normal
mining operations had continued. Bellefonte Lime Co., 20 FMSHRC 1250 (Nov. 1998);
Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986).
Having previously determined that it is appropriate to designate safeguard violations as
significant and substantial, the S&S analysis focuses on whether it is reasonably likely that the
hazard posed by crawling under, or climbing over, a moving beltline will result in an accident
causing serious injury. Obviously, being drawn into a moving belt and its rollers is reasonably
likely to result in serious or fatal injuries. Thus, the circumstances surrounding the violation, as
well as the parties' stipulation that it is reasonably likely that the hazard caused by the cited
failure to provide a travelway over the beltline will result in a "lost work days or restricted duty"
injury, provide a substantial basis for concluding the subject safeguard violation was properly
designated as S&S. With respect to the penalty, I conclude that the parties' agreement to
impose a $1,304.00 civil penalty is consistent with the criteria set forth in section l lO(i) of
the Act. 30 U.S.C. § 820(i).

31 FMSHRC 309

VI. Settlement Approval for
Citation Nos. 6606187 and 6605283
The Secretary has filed a motion to approve settlement with respect to Citation
Nos. 6606187 and 6605283. A reduction in civil penalty from $17,328.00 to $10,000.00 is
proposed for these citations. Tue reduction in penalty apparently is based on the vagaries of
litigation. I have considered the representations and documentation submitted in this matter and
I conclude that the proffered settlement is appropriate under the criteria set forth in Section 11 O(i)
of the Act. Accordingly, the parties' motion to approve their settlement terms for Citation
Nos. 6606187 and 6605283 shall be granted.

ORDER

In view of the above, IT IS ORDERED that the safeguard violation in
Citation No. 6606199 IS AFFIRMED as a significant and substantial violation.
IT IS FURTHER ORDERED that Wolf Run Mining Company shall pay a
civil penalty of $1,304.00 in satisfaction of Citation No. 6606199.
Consistent with the parties' settlement terms, IT IS FURTHER ORDERED that
Wolf Run Mining Company shall pay a civil penalty of$10,000.00 for Citation Nos. 6606187.
and 6605283.
Consistent with this decision and the parties' settlement tenns,IT IS ORDERED

that Wolf Run Mining Company shall, within 40 days of the date of this decision,
pay a total civil penalty of $11,304.00 in satisfaction of the three subject citations.
Upon receipt of timely payment, the civil penalty proceeding in WEVA 2008-804
IS DISMISSED.

Jerold Feldman

Administrative Law Judge

31FMSHRC310

Distribution: (Regular and Certified Mail)

R. Herny Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340,
401 Liberty Avenue, Pittsburgh, PA 15222
Susan M. Jordan, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630 East,
The Curtis Center, 170 S. Indepenence Mall West, Philadelphia, PA 19106
/rps

31FMSHRC311

ADMINISTRATIVE LAW JUDGE ORDERS

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

February 17, 2009
UNITED TACONITE, LLC,
Contestant

CONTEST PROCEEDINGS
Docket No. LAKE 2008-93-RM
Citation No. 6154850; 11/20/2007

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

Docket No. LAKE 2008-94-RM
Citation No. 6154851; 11/20/2007
United Mine

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2008-501-M
A.C. No. 21-003403-154315

v.
UNITED TACONITE, LLC,
Respondent

United Mine

DISCOVERY ORDER
These consolidated contest and civil penalty matters concern citations related to an
April 18, 2007, fatal drilling accident at the United Mine operated by United Taconite, LLC
(''United Taconite"). The accident occurred when the drill, that was positioned on a slope, tipped
on its side killing the operator. Atlas Copco Drilling Solutions, LLC ("Atlas Copco"), and its
related companies, manufactured and provided to United Taconite, by lease and sale, the drill
that is the subject of these proceedings. Atlas Copco is not a party in these proceedings.
As a result of the accident, United Taconite was cited for an alleged violation of section
56.14205, 30 C.F.R. §56.14205, of the Secretary's mandatory safety standards. This mandatory
standard provides that:

Machinery; equipment, and tools shall not be used beyond the design capacity
intended by the manufacturer where such use may create a hazard to persons.
United Taconite was also cited for an alleged violation of the Secretary's training
regulations in section 48.27(a)(3), 30 C.F.R. § 48.27(a)(3). United Taconite has reported that
Atlas Copco provided certain training to United Taconite employees.
31FMSHRC312

Commission Rule 56 governs the scope of discovery. 29 C.F.R. § 2700.56. This rule
states:
Parties may obtain discovery of any relevant, non-privileged matter that is admissible
evidence or appears likely to lead to the discovery of admissible evidence.
There is a personal injury action pending in the District Court, Sixth Judicial District,
County of St. Louis, State of Minnesota, No. 69 VI-CV-08-145, which involves Atlas Copco,
United Taconite and others. United Taconite's counsel in the personal injury action is separate
from counsel in these proceedings.
United Taconite and Atlas Copco have entered into a confidentiality agreement in the
personal injury civil action concerning, inter alia, Atlas Copco's financial statements and other
non-public or proprietary information including but not limited to, trade secrets, design
specifications, product testing information and manufacturing processes and techniques.
On December 17, 2008, United Taconite filed a motion requesting that I issue a confidentiality
order incorporating the terms of its confidentiality agreement with Atlas Copco. As Atlas Copco
is not a party in this matter, United Taconite's motion IS DENIED.
With respect to the scope of discovery, IT IS ORDERED that United Taconite, during
the course of deposition and written discovery, provide to the Secretary all relevant evidence
that may be admitted in this proceeding, or that is likely to lead to the discovery of admissible
evidence. Jn this regard, all relevant deposition testimony and evidence concerning the issues of
training, and the design capacity and intended use of the drill in issue, whether or not considered
subject to the confidentiality agreement in the civil proceeding, shall be provided to the
Secretary. The Secretary should utilize the information obtained through discovery for trial
preparation only, and this information should not be routinely disseminated. Only evidence that
is admitted in the evidentiary hearing may be publically disclosed.

IT IS FURTHER ORDERED that all deposition and written discovery shall be
completed on or before April 17, 2008. The parties should initiate a telephone conference,
on or before March 13, 2009, to select a n;mtually satisfactory hearing date and location.

Jerold Feldman
,Administrative Law Judge

31 FMSHRC 313

Distribution:
Suzzane Dunne, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn Street,
Chicago, IL 60604
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340,
401 Liberty Avenue, Pittsburgh, PA 15222
R. Brian Hendrix, Esq., Patton Boggs LLP, 2250 M Street, NW, Washington, DC 20037

/rps

31FMSHRC314

G:O' U.S. GOVERNMENT PRINTING OFFICE: 2009-35Q.058f74301