JANUARY AND FEBRUARY 2011

COMMISSION DECISIONS AND ORDERS
01-06-2011
01-06-2011
01-06-2011
01-06-2011
. 01-06-2011
01-06-2011
01-07-2011
01-11-2011
01-12-2011
01-19-2011
01-19-2011
01-25-2011
01-28-2011
01-28-2011
02-01-2011
02-01-2011
02-07-2011
02-07-2011
02-07-2011
02-07-2011
02-07-2011
02-07-2011
02-07-2011
02-07-2011
02-07-2011
02-09-2011
02-15-2011
02-16-2011
02-17-2011
02-17-2011
02-17-2011
02-17-2011
02-17-2011
02-22-2011
02-25-2011
02-25-2011
02-25-2011

McCoy Elkhorn Coal Corporation
Kevin Baird v. PCS Phosphate Co., fuc.
Keokee Mining, LLC.
A.B.C. Sand & Rock Co., Inc.
Dynatec Mining Corporation
Brown Excavation Company, Inc.
Sec. Labor o/b/o Mark Gray v. North
Fork Coal Corporation
Enos Miller
Lehigh Cement Company
White Flame Energy, Inc.
Northeast Solite Corporation
North County Sand & Gravel, fuc.
Cemex Construction Materials Florida, LLC.
National Cement Company of Alabama, Inc.
Pattison Sand Company, LLC.
Sikes Pipe Company
Nally & Hamilton Enterprises, fuc.
Coalfield Services, Inc.
Oak Grove Resources, LLC.
Oak Grove Resources, LLC.
Harvey W. Buche Road Building, Inc.
Fairbanks Gold Mining, Inc.
Nevada Ready-Mix Corporation
Detroit Salt Company, LLC.
Iron Eagle Enterprises, LLC.
Signal Peak Energy, LLC.
Kevin Baird v. PCS Phosphate Co., Inc.
Left Fork Mining Company, Inc.
Spartan Mining Company
Rowdy Crushing, Inc.
Johnson Construction Materials
Thilllder Basin Coal Company, LLC.
Holschback Excavating, Inc.
Liggett Mining, LLC.
Alsop Sand Company, Inc.
Cantera Hipodromo~ Inc.
Drummond Company, Inc.

KENT 2010-978
SE 2010-74-DM
VA 2011-63
WEST 2011-64-M
WEST 2009-434-M
YORK 2010-239-M

Pg.
Pg.
Pg.
Pg.
Pg .
Pg.

1

5
15
18
21
24

KENT 2009-1429-D Pg. 27
WEST 2008-1569-M Pg. 61
PENN 2010-462-M
Pg. 64
WEVA2011-276
Pg. 68
YORK 2011-13-M
Pg. 71
WEST 2010-877-M
Pg. 74
SE 2011-30-M
Pg. 78
SE 2011-60-M
Pg. 81
CENT 2010-1273-M Pg. 84
SE 2010-1161-M
Pg. 88
KENT 2010-748
Pg. 92
WEVA 2009-1796
Pg. 96
SE 2009-812
Pg. 100
SE 2011-16
Pg. 103
WEST 2010-986-M
Pg. 107
WEST 2010-1698-M . Pg. 111
WEST 2011-112-M
Pg. 114
LAKE 2010-206-M
Pg. 117
KENT 2010-747
Pg. 121
WEST 2010-1647
Pg. 124
SE 2010-74-DM
Pg. 127
KENT 2011-275
Pg. 134
WEVA 2010-687
Pg. 137
WEST 2011-124-M
Pg. 140
LAKE 2011-96-M
Pg. 144
WEST 2010-1600
Pg. 147
LAKE 2011-65-M
Pg. 150
KENT 20 I 0-790
Pg. 153
CENT 2010-1063-M Pg. 157
SE 2008-738-M
Pg. 160
SE 2010-580
Pg. 164

ADMINISTRATIVE LAW mDGE DECISIONS
01-04-2011
01-04-2011
01-10-2011
01-10-2011
01-12-2011
01-13-2011
01-20-2011
01-20-2011
01-25-2011
01-28-2011
02-01-2011
02-01-2011
02-03-2011
02-04-2011
02-04-2011
-02-09-2011
02-09-2011
02-15-2011
02-16-2011
02-18-2011
02-18-2011

The American Coal Company
Lonnie Belcher v. Bates Contracting and
Construction, et al.
Justin Nagel v. Newmont USA Limited
Blankenberger Brothers, Inc.
E.S. Stone & Structure, Inc.
Triad Underground Mining, LLC.
Sec. Labor o/b/o Alex Green and William D.
Smith v. D & C Mining Corporation
Sec. Labor o/b/o Harry Lee Beckman v.
Mettiki Coal (WV), LLC.
Consolidation Coal Company
Mainline Rock & Ballast, Inc.
Allgeier Martin & Associates
Lehigh Southwest Cement Co.
Jim Walter Resources, Inc.
Beckley Crane & Construction
Consolidation Coal Company
ICG Knott County, LLC.
Centre Crown Mining, LLC.
Essroc Cement Corporation
Dickenson-Russell Coal Co., LLC.
Emerald Coal Resources, LP
Fox Knob Coal Comp;my

LAKE 2007-139

Pg. 169

VA 2010-249-D
WEST 2010-464-DM
LAKE 2009-586
WEST 2009-1274-M
LAKE 2009-513

Pg. 181
Pg. 199
Pg.223
Pg.515
Pg.231

KENT 2010-535-D

Pg.243

WEVA 2009-1526-D Pg.258
WEVA2008-751
Pg.283
CENT 2009-588-M
Pg.307
CENT 2009-531-RM Pg.332
WEST 2009-22-M
Pg.340
SE
2008-881
Pg.362
WEVA2009-1558
Pg.372
2007-32
VA
Pg.385
KENT 2008-312
Pg. 402
LAKE 2009-418
Pg.428
LAKE 2008-641-M
Pg.459
VA 2009-44-R
Pg.477
PENN 2009-614-R
Pg.489
KENT 2009-126
Pg. 503

ADMINISTRATIVE LAW mDGE ORDERS
01-03-2011
01-04-2011
02-28-2011

Sec. Labor o/b/o Rodney Payne v. Spiro Mining
LLC. And its successors
The American Coal Company
Emerald Coal Company

11

_,.,,_·

CENT 2010-1135-D
LAKE 2008-41
PENN 2009-564

Pg.523
Pg.526
Pg.535

JANUARY AND FEBRUARY 2011

Review was granted in the following cases during the months of Januazy and Februazy:
Secretary of Labor, MSHA v.Dynatec Mining Corporation, Docket No. WEST 2009-434-M.
(Chief Judge Lesnick, :unpublished Default order of December 2, 2010)
Performance Coal Company v. Secretary of Labor, MSHA, Docket No. WEVA 2010-1909-R.
(Judge Miller, December 17, 2010)
Secretary of Labor, MSHA v. The American Coal Company, Docket No. LAKE 2007-139, et al.
(Judge Miller, January 4, 2011)
Secretary of Labor, MSHA v. Clintwood Elkhorn Mining Company, Inc., Docket No. KENT
2011-40-R, et al. (Judge Gill, January 3, 2011)

Review was denied in the following case during the months of Januazy and Februazy:
Secretary of Labor, MSHA v. Highland Mining Company, Docket No. KENT 2008-1083, et al.
(Judge Melick, December 16, 2010)

iii

COMMISSION DECISIONS AND ORDERS

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

January 6, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. KENT 20 I 0-978
A.C. No. 15-18775-208623

MCCOY ELKHORN COAL
CORPORATION
BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 26, 2010, the Commission received from McCoy
Elkhorn Coal Corporation ("McCoy'') 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).
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(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
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).
33 FMSHRC Page 1

On December 2, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Citation No. 7446687 to McCoy. McCoy filed a notice of contest for that
citation. See Docket No. KENT 2010-343-R. On January 13, 2010, MSHA issued Proposed
Assessment No. 000208623, which assessed penalties for 17 violations, including Citation
No. 7446687. In an affidavit, the safety director for McCoy states that he inadvertently paid the
penalty for Citation No. 7446687 when he paid the other penalties contained on the assessment.
McCoy asserts that it learned of its mistake on March 29, 2010, in conjunction with the
underlying contest matter. McCoy filed its motion to reopen within a month of discovering its
mistake.
The Secretary opposes reopening the proposed penalty assessment, maintaining that the
motion fails to sufficiently explain the inadvertence so as to warrant the reopening. She also
faults the operator for failing to present facts that would constitute a meritorious defense if the
case were to be reopened.
The Commission determines that McCoy has established that its payment of the penalty
assessment associated with Citation No. 7446687, resulted from inadvertence or mistake. We ·
find that its prior filing of a notice of contest demonstrates an intention to contest. Phelps Dodge
Sierrita, Inc., 24 FMSHRC 661, 662 (July 2002}(reopening when an operator contested the
citation and then inadvertently paid the associated penalty). Moreover, McCoy acted very
promptly in submitting its request to reopen the assessment, within 30 days of discovery of its
mistaken payment. Highland Mining Co., 31FMSHRC1313, 1316-17 (Nov. 2009).

33 FMSHRC Page 2

Having reviewed McCoy'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

~L

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 3

Distribution:
Melanie J. Kilpatrick, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
3151 Beaumont Centre Circle, Suite 375
Lexington, KY 40513
W. Christian Schumann, Esq.
Office of the Solicitor·
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
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

33 FMSHRC Page 4

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

January 6, 2011

KEVIN BAIRD
Docket No. SE 2010-74-DM

v.
PCS PHOSPHATE COMPANY, INC.

BEFORE: Jordan, Chairman; Duffy, Y ourig, Cohen, and Nakamura, Commissioners
DECISION
BY: Jordan, Chairman, and Nakamura, Commissioner
This temporary reinstatement proceeding arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (2006) ("Mine Act" or "Act"). Pursuant to section
105(c)(2) of the Mine Act, 30 U.S.C. -§ 815(c)(2), Administrative Law Judge Jacqueline R.
Bulluck had ordered miner Kevin Baird temporarily reinstated to his position at PCS Phosphate,
Inc. ("PCS") after he had been discharged by the operator. Unpublished Orders, dated Dec. 18,
2009, and Feb. 2, 2010 (ALJ) (hereinafter, respectively, "TR Order No. l" and "TR Order No.
2"). Following the Secretary of Labor's subsequent withdrawal of the discrimination complaint
she had earlier filed on Baird's behalf, Baird filed his own discrimination complaint pursuant to
section 105(c)(3)~ 30 U.S.C. § 815(c)(3). The judge then dissolved the order ofreinstatement
and dismissed both the reinstatement proceeding and the discrimination case that the Secretary
had brought. 32 FMSHRC 325, 327 (Mar. 2010) (ALJ).
Baird filed a timely petition for discretionary review, challenging the dissolution of the
reinstatement order in light of the pendency of his section 105(c)(3) case. The Commission
granted the petition, and a Commission majority now reverses the judge's decision to dissolve
reinstatement, holding that a miner's temporary reinstatement continues until the Commission
issues a final order regarding the merits of the miner's allegation of discrimination, whether it be
under section 105(c)(2) or section 105(c)(3) of the Mine Act. A majority also orders Baird
economically reinstated to his former position, retroactive to November 16, 2009, at his former
rate of pay.

33 FMSHRC Page 5

I.
Factual and Procedural Back&round
On March 13, 2009, Baird was discharged from his position as a shift foreman at PCS's
Lee Creek Mine, a phosphate mine in Aurora, North Carolina. TR Order No. 1, at 1; TR Appl.
at 2. According to Baird, his termination was due to safety complaints his wife, an employee of a
PCS contractor, had filed regarding conditions at the Lee Creek Mine which had resulted in.·
inspections by federal agencies. Id. Consequently, on August 15, 2009, Baird filed a
discrimination complaint with the Department of Labor's Mine Safety and Health Administration
("MSHA"), alleging that his discharge by PCS was unlawful under section 105(c) of the Mine
Act, 30 U.S.C. § 815(c). TR Order No. 1, at I.
On October 14, 2009, the Secretary filed an application with the Commission to
temporarily reinstate Baird to his position with PCS. Id. After initially requesting a hearing on
the application, PCS withdrew its request, and the parties agreed to the judge ruling on the
application based on their written submissions. Id. fu her order temporarily reinstating Gray, the
judge applied the "not frivolously brought" standard for temporary reinstatement found in section
105(c)(2). Id. at 1-2. The judge concluded that, under that low standard, there was sufficient
evidence that Baird's wife had engaged in protected activity and that Baird's discharge was
motivated by thatprotected activity. Id. at 3-4. Consequently, the judge ordered Baird
temporarily reinstated (id. at 4), and later amended her order to reflect the parties' subsequent
agreement that Baird would n()t return to work but rather his reinstatement would be economic.
TR Order No. 2, at 4.

The Secretary filed a discrimination complaint on behalf of Baird pursuant to section
105(c)(2) on December 23, 2009, in Docket No. SE 2010-304-DM. PCS filed an answer to the
complaint, and according to the operator the Secretary and it engaged in extensive discovery,
including multiple depositions. PCS Br. at 3. The judge set a hearing on the merits of Baird's
discrimination case for February 10, 2010.
On February 4, 2010, the Secretary filed a notice to withdraw her discrimination
complaint, after she had determined that section 105(c) had not been violated and that she would
be unlikely to meet her burden of proving that discrimination against Baird had occurred. S. Br.
at 3. At the same time, the Secretary requested that Baird's temporary reinstatement continue
while he pursued a potential action on his own behalf under section 105(c)(3). 32 FMSHRC
at 325. Baird initiated such an action through private counsel, who filed a discrimination
complaint for Baird with the Commission on March 10, 2010, in Docket No. SE 2010-523-DM.
That case is presently pending before the judge.
Meanwhile, PCS had moved to dissolve the order of temporary reinstatement, a motion
which the Secretary opposed. The judge granted PCS's motion, holding that the language of
section 105(c) and the legislative history of the Mine Act established that the remedy of

33 FMSHRC Page 6

temporary reinstatement was· coincident only with the Secretary's involvement under section
105(c)(2), and did not extend beyond that to a miner's private complaint under section 105(c)(3).
32 FMSHRC at 326-27. Consequently, the judge dissolved her amended order of temporary
reinstatement effective February 4, 2010, and dismissed both the reinstatement proceeding and
the discrimination case brought by the Secretary. Id. at 327.
Baird, through counsel, petitioned the Commission to review the judge's order dissolving
the temporary reinstatement order in light of his section 105(c)(3) action. The Commission
granted the petition, 1 and subsequently granted the Secretary's unopposed motion to participate
as amicus curiae in support of Baird.

n.
Disposition
The Commission recently addressed the issue this case raises in Phillips v. A&S
Construction Co., 31 FMSHRC 975 (Sept. 2009). The judge below in Phillips had ordered
dissolution of the temporary reinstatement order and dismissal of the temporary reinstatement
proceeding. 30 FMSHRC 1119 (Nov. 2008) (ALI).· In Phillips, Commissioners were evenly
divided on the question of whether the judge correctly decided that a temporary reinstatement
order no longer remains in effect after the Secretary has made a determination of no
discrimination. 31 FMSHRC at 979-1004. Thus, the effect of the split decision was to a11ow the
judge's decision to stand, as if affirmed. Id. at 979 (citing Pennsylvania Elec. Co., 12 FMSHRC
1562, 1563-65 (Aug. 1990), aff'd on other grounds, 969 F.2d 1501 (3d Cir. 1992)).

In Phillips, Commissioners Duffy and Young voted to affirm in result the judge's
dissolution of the temporary reinstatement order and dismissal of the temporary reinstatement
proceeding. '.They did so on the ground that, under the plain meaning of section 105(c), a
reinstatement order can only remain in effect while the Secretary is pursuing a section 105(c)(2)
action; once she had determined that discrimination had not occurred, reinstatement was no
longer appropriate. 31 FMSHRC at 980-89.
Chairman Jordan and Commissioner Cohen voted to reverse the judge's order, and would
have had the temporary reinstatement order remain in effect. Chairman Jordan did so on the
ground that the plain language of section l 05(c) mandates that temporary reinstatement continue
until the Commission issues a final order regarding the merits of the miner's allegations of
discriminatory conduct, whether it be under section 105(c)(2) or section 105(c)(3). Id. at 990-97.
Commissioner Cohen found the language of section 105(c) to be ambiguous, that deference was

1

Baird's petition included a request that the Commission stay the effect of the judge's
order dissolving temporary reinstatement (PDR at 1, 8), a request which PCS opposed. Only two
of the then four Commissioners voted to grant the stay, so it was denied. See Unpublished Order,
dated Apr. 8, 2010.
33 FMSHRC Page 7

due the Secretaiy's reasonable construction of the statutory·provision, and that the Secretary's
interpretation of the provision to require that temporary rein~tatement remain in effect -while the
miner pursues relief under section 105(c)(3) is a reasonable one" Id. at 998-1004.
In his petition for review, Baird argued that the instant case is distinguishable from
Phillips, because here the Secretary had gone so far as to file a discrimination complaint on
behalf of the miner, whereas in Phillips she had never done so. PDR at 5-7. In his brief, Baird
takes the position that the Secretary's interpretation that section 105(c) requires that a temporary
reinstatement order remain in effect while the miner pursues an action under section 105(c)(3) is
a reasonable and thus permissible one, given the language ofthe statute and the legislation's
history and purpose. B. Br. at 9-13.
In her amicus brief, the Secretary maintains that section 105(c) can only be read one way:
a temporary reinstatement order must remain in. effect until there is a final Commission order on
the merits of the miner's underlying discrimination complaint, regardless of whether that final
order is obtained pursuant to section 105(c)(2) by the Secretary, or by a miner under section
105(c)(3). S. Br. at 9. The Secretary takes issue with the opinion of Commissioners Duffy and
Young in Phillips, both with regard to their conclusion thatthe Mine Act, by its plain meaning,
prohibits the-continuation of temporary reinstatement beyond the Secretary's-determination that
no discrimination occurred (id. at 10-21), and their holding that the Secretary is not due
deference in her interpretation of section 105(c) with respect to the question at hand because she
does not participate in section 105(c)(3) cases. Id. at 6-8.

PCS responds that the plain meaning of the text of section 105(c) indicates that temporary
reinstatement is to end once the section 105(c)(2) process involving the Secretary has run its
course, and does not extend to proceedings under section 105(c)(3). PCS Br. at 6-14. PCS
maintains that such a reading of the Mine Act is further supported by its legislative history and
purpose. Id. at l 4-16. PCS further argues that, because the Secretary does not administer section
105(c)(3 ), her interpretation that temporary reinstatement continues during 105(c)(3) proceedings
is not entitled to deference. ·Id. at 16-18. PCS takes the position that such a continuation would
deprive the operator of due process oflaw. Id. at 18-20.
The Secretary requested and was granted permission by the Commission to file an amicus
reply brief to respond to PCS' s due process arguments. She argues that the temporary
reinstatement procedures of section 105(c)(2) have been upheld as non-violative of the Due
Process Clause of the Fifth Amendment. S. Reply Br. at 5. According to the Secretary, any
additional period of time a miner is reinstated while a section 105(c)(3) case is litigated does not
deprive the operator of due process. Id. at 4.
Consistent with the decision the Commission issues today in Secretary on behalfof Gray
v. North Fork Coal Corp., Docket No~ KENT 2009-1429-D, the judge's order dissolving the
temporary reinstatement order is reversed. The miner shall be economically reinstated to his

33 FMSHRC Page 8

former position, retroactive to November 16, 2009. 2 His economic reinstatement shall be at the
rate of pay, including any pay increases, bonuses, and other benefits, as specified in the judge's
February2, 2010 order. See Secy on behalf of Williamson v. CAM Mining, LLC, 31 FMSHRC
1085, 1091 (Oct. 2009). 3

~~L'-'

~Olll_:_Ji.•_;_____..:::.··-==·
::::--1--------Patrick K. Nakamura, Commissioner

2

In her initial order of December 18, 2009, granting reinstatement, the judge ordered
Baird reinstated retroactive to November 16, 2009. TR Order No. 1, at 4. fu her February 2,
2010 amended order granting temporary economic reinstatement, the judge, upon motion of the
parties, economically reinstated Baird to his former position retroactive to November 16, 2009.
TR Order No. 2, at 4. The judge's February 2, 2010 order economically reinstating Baird
retroactive to November 16, 2009, was subsequently dissolved by her order of March I 0, 2010,
which we now overturn.
3

Our dissenting colleagues, in addition to basing their decision in this case on their
position in Gray, suggest that the Commission should not "tum a blind eye" towards the
Secretary's conduct of the litigation in this matter. Slip op. at 7-8. Even if we accepted their
view of the Secretary's actions, which we do not, it seems to Us exceedingly unfair to deprive this
-miner of temporary reinstatement as a means of expressing disapproval of the Secretary.
33 FMSHRC Page 9

Commissioner Cohen, concurring:
Consistent with my opinion in the decision the Commission issues today in Secretary on
behalf of Gray v. North Fork Coal Corp., Docket No. KENT 2009-1429-D, I agree that the
judge's order dissolving the temporary reinstatement order should be reversed, and that Mr.
Baird shall be economically reinstated to his former position, retroactive to November 16, 2009. 1
His economic reinstatement shall be at the rate of pay, including any pay increases, bonuses, and
other benefits, as specified in the judge's February2, 2010 order. 2

Robert F. Cohen, Jr., Commissioner

1

In her initial order of December 18, 2009, granting reinstatement, the judge ordered
Baird reinstated retroactive to November 16, 2009. TR Order No. 1, at 4 .. In her February 2,
2010 amended order granting temporary economic reinstatement, the judge, upon motion of the
parties, economically reinstated Baird to his former position retroactive to November 16, 2009.
TR Order No. 2, at 4. The judge's February 2, 2010 order economically reinstating Baird
retroactive to November 16, 2009, was subsequently dissolved by her order of March 10, 2010,
which we now overturn.
2

I agree with footnote 3 in the opinion of Chairman Jordan and Commissioner

Nakamura.

33 FMSHRC Page 10

Commissioners Duffy and Young, dissenting:
Consistent with our opinion in the decision the Commission issues today in Secretary on
behalfof Gray v. North Fork Coal Corp., Docket No. KENT 2009-1429-D, we disagree that the
judge's order dissolving the temporary reinstatement order should be reversed, and instead would
affirm the judge's order to dissolve the temporary reinstatement order.
In so doing we cannot help but notice that the Secretary has apparently succumbed to the
temptation her interpretation of section 105(c) raises. It is undisputed that: ( 1) the Secretary
applied for Baird's temporary reinstatement two months after having received his discrimination
complaint; (2) two and one-half months later, the Secretary filed a discrimination complaint on
Baird's behalf pursuant to section 105(c)(2); and (3) over the next month the Secretary engaged
in extensive discovery, including taking multiple depositions.
Then, less than a week before the discrimination hearing was set, the Secretary withdrew
her section 105(c)(2) discrimination complaint because her near six-month involvement in the
case had demonstrated to her that Baird had not been discriminated against. Consequently, the
judge issued a "final order" under section 105(c)(2) dismissing the complaint. Given the
language of section 105(c)(2), that ended Baird's right to temporary reinstatement, in our view at
least.
Nevertheless, the Secretary urged the judge, and now urges the Commission, to keep
''temporary'' reinstatement in place while the miner pursues his own action under section
105(c)(3). It needs to be kept in mind that the invocation of section 105(c)(3) does not simply
result in the miner's privately retained counsel taking the place of the Secretary in representing
the miner at the hearing, or a brief continuance being granted for his new counsel to get up to
speed. No, an entirely new case begins, and even as we issue this decision the scheduled hearing
in this case is months away.

33 FMSHRC Page 11

We do not believe the Commission should turn a blind eye toward these events,
particularly at a time when the number of cases pending before our judges has increased greatly. 1

Michael

1

We note that it is the Commission's judges who deal with the Secretary and the litigants
on a daily basis in both the temporary reinstatement and discrimination phases of the
proceedings, yet none of the multiple judges who have been faced with these circumstances have
been persuaded that extending "temporary" reinstatement is appropriate.
33 FMSHRC Page 12

Distribution:
W. Christian Schumann, Esq.
Robin Rosenbluth Esq.,
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209:..2247
Margaret S. Lopez, Esq.
Denise Girardo
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
2400 N Street NW, 5th Floor
Washington, DC 20037
counsel for PCS Phosphates
Elizabeth McGrail, Esq.
PECS Administration (USA), Inc.
1101 Skokie Blvd., Suite 400
Northbrook, IL 60062
counsel for PCS Phosphates
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4 740 Corridor Place, Suite D
Beltsville, MD 20705
counsel for Kevin Baird
Carla M. Casas, Esq.
Office of the Solicitor
U.S. Department of Labor
61 Forsyth Street SW, Room 7TIO
Atlanta, GA 30303
Kevin E. Baird, Sr.
16008 US Hgwy., 246 East
Pinetown, NC 27865
Administrative Law Judge Jacqueline Bulluck
Federal Mine Safety & Health Review Commission
601 New Jersey Ave., N.W. Suite 9500
Washington, D. C. 20001-2021
SE 2010-74-D

33 FMSHRC Page 13

Stephen M. Hodges, Esq.
Penn, Stuart & Eskridge
P.O. Box 2288
Abingdon, VA 24212
Tony Oppegard, Esq.
P.O. Box 22446
Lexington, KY 41858
wes@appalachianlawcenter.org
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
601 New Jersey Ave., N.W. Suite 9500
Washington, D. C. 20001-2021
KENT 2009-1429-D

33 FMSHRC Page 14

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

January 6, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 2011-63
A.C. No. 44-06947-230981

v.
K.EOK.EE MINING LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:

·

This n1atter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On October 25, 2010, the Commission received a motion by
Keokee Mining LLC ("Keokee") 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). On
November 18, 2010, the Commission received a response from the Secretary of Labor stating
that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final 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

33 FMSHRC Page 15

for a failure to timely respond; the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 J'MSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, Keokee's request, and the
Secretary's response, 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 ofthis order. See 29 C.F.R.
§ 2700.28. 1

Michael

· Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

1

Based on statements in Keokee's motion, we interpret its request as one to reopen the
entire assessment so that it can· contest all of the proposed penalties. If that is not Keokee's
intention, to save the Secretary from having to prepare an overly broad penalty petition, Keokee
should immediately contact counsel for the Secretary and identify which penalties it is
contesting, and transmit payment for the remaining penalties if it has not already done so.
33 FMSHRC Page 16

Distribution:
Michael D. Clements
Keokee Mining, LLC
408 Manor Dr.
Kingsport, TN 3 7660
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
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

33 FMSHRC Page 17

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

January 6, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2011-64-M
A.C. No. 02-02357-222842

v.
A.B.C. SAND & ROCK CO., INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 13, 2010, the Commission received from
A.B.C. Sand & Rock, Inc., a letter requesting that the Commission reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a). On November 2, 2010, the Commission received a response from the Secretary
of Labor stating that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final 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

33 FMSHRC Page 18

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 facts and circumstances of this case, the operator's request, and the
Secretary's response, 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

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 19

Distribution:
Gina Falkner, Office Mngr.
ABC Sand & Rock Co., Inc.
5401North119th Ave.
Glendale, AZ 85307
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
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

33 FMSHRC Page 20

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

January 6, 2011

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

v.

Docket No. WEST 2009-434-M
A.C. No. 42-02426-172386 WJ6

DYNATEC MINING CORPORATION

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 23, 2008, the Department of Labor's Mine
Safety and Health Ad.ministration ("MSHA") issued Proposed Assessment No. 000172386 to
Dynatec Mining Corp. ("Dynatec"). On March 9, 2009, after Dynatec had timely contested the
proposed perialty, the Secretary of Labor ("Secretary'') filed a petition for assessment of civil
penalty with the Commission regarding the contested penalty. On August 17, 2010, Chief
Administrative Law Judge Robert Lesnick issued an Order to Show Cause to Dynatec for failure
to file an answer to the Secretary's petition. On December 2, 2010, the judge issued an Order of
Default entering judgement for the Secretary and directing Dynatec to pay the proposed civil
penalty immediately. On December 14, 2010, the Commission received a petition for
discretionary review from Dynatec, requesting that the Commission issue an order directing
review and vacating the default order.
In support of its petition, Dynatec states that on April 10, 2009, it timely filed its answer
to the petition. Dynatec further states that it filed an answer to the show cause order on
September 22, 2010, explaining that it had previously filed an answer to the Secretary's petition.
On December 15, 2010, the Commission received a letter from the Secretary stating that she does
not oppose Dynatec's petition for discretionary review. The Secretary did not dispute any of
Dynatec' s assertions.

33 FMSHRC Page 21

The Chief Judge's jurisdiction over this case terminated when he issued his default order
on December 2, 2010. 29 C.F.R. § 2700.69(b). Relief from a judge's decision may be sought by
filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2);
29 C.F.R. § 2700.70(a). We conclude that Dynatec's petition for discretionary review was timely
filed, and we hereby grant it.
Upon review of the record, in the interest of justice, we hereby vacate the Order of
Default and remand this matter to the Chief Judge for further appropriate proceedings. See REB
Enterprises, Inc., 18 FMSHRC 311(Mar.1996).

Robert F. Cohen, Jr., Commissioner

~

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 22

Distribution:
C. Gregory Ruffennach, Esq.,
for Dynatec Mining Corporation
1629 K Street, Suite 300
Washington, DC 20036
e-mail: cgruffennach@comcast.net
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
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

33 FMSHRC Page 23

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

January 6, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. YORK 2010-239-M
A.C. No. 30-02994-206555
Docket No. YORK 2010-240-M
A.C. No. 30-02994-211798

v.
BROWN EXCAVATION COMPANY, JNC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY TIIB COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). 1 On May4, 2010, the Commission received from Brown
Excavation Company ("Brown") 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).2
On May 26, 2010, the Secretary of Labor filed oppositions to the operator's request to reopen.
It appears from a review of the Data Retrieval System maintained by the Department of
Labor's Mine Safety and Health Administration (''MSHA") that the operator has paid the civil
penalties that are the subject of its request to reopen. The parties have not filed pleadings
subsequent to the May 2010 pleadings to inform the Commission of any change in status of these
proceedings.

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers YORK 2010-239-M and YORK 2010-240-M, both captioned Brown
Excavation Company, Inc., and involving the same procedural issues. 29 C.F.R. § 2700.12.
2

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).
33 FMSHRCPage 24

Brown is hereby ordered to show cause within 30 days of the date of this order why its
request to reopen should not be denied as moot.

ss1oner

Robert F. Cohen, Jr., Commissioner

~J'~

l

~w~

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 25

Distribution:
Jodi Flaherty
Brown Excavation Co., Inc.
2735 State Rte. 49
West Monroe, NY 13167

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209.:.2296
Melanie Garris
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

33 FMSHRC Page 26

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

January 7, 2011

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of MARK GRAY

Docket No. KENT 2009-1429-D

v.
NORTH FORK COAL CORPORATION

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
DECISION
BY: Jordan, Chairman, and Nakamura, Commissioner
This temporary reinstatement proceeding arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (2006) ("Mine Act" or "Act"). Pursuant to section 105(c)(2)
of the Mine Act, 30 U.S.C. § 815(c)(2), Administrative Law Judge Gary Melick had ordered
miner Mark Gray temporarily reinstated to his position at North Fork Coal Corporation (''North
Fork") following Gray's discharge by the operator. 31 FMSHRC 1143, 1146 (Sept. 2009) (ALJ).
Following the ·secretary of Labor's subsequent announcement that she would not be filing a
discrimination complaint on Gray's behalf, the judge dissolved the order of reinstatement.
31 FMSHRC 1420, 1421 (Dec. 2009) (ALJ). Gray soon thereafter filed his own discrimination
complaint pursuant to section 105(c)(3), 30 U.S.C. § 815(c)(3).
Both the Secretary and Gray filed timely petitions for discretionary review, challenging the
dissolution of the reinstatement order in light of the pendency of Gray's section 105(c)(3) case.
The Commission granted both petitions. A Commission majority now reverses the judge's
decision to dissolve reinstatement, and holds that Gray's right to reinstatement remains in effect.

I.
Factual and Procedural Back2round
Gray was discharged from his position as a roof bolter at North Fork's No. 4 Mine in
Partridge, Kentucky, on May 15, 2009. 31 FMSHRC at 1144. According to Gray, his termination
33 FMSHRC Page 27

was due to his refusal to perform work he considered dangerous and to his complaints about
safety hazards at the mine over the course of the previous month. See id. at I I 44-45 (detailing
Gray's safety complaints and work refusal). Consequently, Gray filed a discrimination complaint
with the Department of Labor's Mine Safety and Health Administration r'MSHA"), alleging that
his discharge by North Fork was unlawful under section 105(c) of the Mine Act, 30 U.S.C.
§ 815(c). Id. at 1144.
On August 13, 2009, the Secretary filed an application with the Commission to
temporarily reinstate Gray to his position with North Fork, and on September 2, 2009, the judge
held the hearing that North Fork had requested on the Secretary's application. Jn his order
temporarily reinstating Gray, the judge applied the "not frivolously brought" standard for
temporary reinstatement found in section 105(c )(2). Id. at 1143-44. The judge concluded that,
under that low standard, there was sufficient evidence that Gray had engaged in protected activity
by complaining of unsafe working conditions to his immediate supervisor and engaging in a
protected work refusal, and that Gray's discharge was motivated by that protected activity. Id.
at 1145. Consequently, the judge issued an order temporarily reinstating Gray. Id. at 1146. The
parties soon thereafter agreed that Gray would not return to work but rather his reinstatement
would be economic, and on September 17, 2009, the judge issued an order to that effect. 31
FMSHRC 1167, 1168 (Sept. 2009) (ALJ).
On November 3, 2009, North Fork moved to terminate temporary reinstatement on the
ground that the Secretary had failed to file a timely discrimination complaint. Jn its motion North
Fork argued that section 105(c )(2) of the Mine Act requires that the Secretary notify the miner,
within 90 days of receiving the miner's com.plaint, whether discrimination had occurred. Mot.
at 2-4.
The Secretary did not file a response addressing North Fork's motion to terminate. Rather,
on Novembe,r 23, 2009, the Secretary informed the judge that, three days earlier, she had sent
written notification to Gray that, as a result of her investigation of his complaint, she had decided
not to file a complaint pursuant to section 105(c)(2) with the Commission on Gray's behalf
31 FMSHRC at 1420. The letter was copied to North Fork and ·stated:
A careful review of the information gathered during the
investigation has been made. On the basis of that review, MSHA
has determined that facts disclosed during the investigation do not
constitute a violation of Section 105(c). Therefore, discrimination,
within the confines of the Mine Act, did not occur.
NF Statement in Opp'n to PDR, Attachment. On December 2, 2009, the judge held that the order
of temporary reinstatement must be dissolved and the temporary reinstatement proceeding
dismissed. 31 FMSHRC at 1420.

33 FMSI:IRC Page 28

On December 30, 2009, Gray, through his own counsel, filed an action on his own behalf
pursuant to section 105(c)(3) of the Mine Act, 30 U.S.C. § 815(c)(3). The case was docketed with
the Commission at KENT 2010-0430, and is presently pending before another Commission
administrative law judge

Both the Secretary and the Gray petitioned the Commission to review the judge's order
dissolving the temporary reinstatement order in light of Gray's section 105(c)(3) action. In
granting both petitions, the Commission directed that the issue of the Secretary's standing to bring
an appeal be addressed in the briefs.

II.
Disposition
The Commission recently addressed the issue this case raises in Phillips v. A&S
Construction Co., 31 FMSHRC 975 (Sept. 2009). In Phillips, Commissioners were evenly
divided on the question of whether the judge correctly decided that a temporary reinstatement
order no longer remains in effect after the Secretary has made a determination of no
discrimination. 31 FMSHRC at 978-1004. Gray stated in his petition that review was again
appropriate because, unlike when it decided Phillips, the Commission now has its full fivemember complement of Commissioners. G. PDR at 2.
The judge in Phillips had ordered dissolution of the temporary reinstatement order and
dismissal of the temporary reinstatement proceeding. 30 FMSHRC 1119, 1123 (Nov. 2008)
(ALJ). The effect of the Commission's split decision was to allow the judge's decision to stand,
as if affirmed. 31 FMSHRC at 979 (citing Pennsylvania Elec. Co., 12 FMSHRC 1562, 1563-65
(Aug. 1990), ajf'd on other grounds, 969 F.2d 1501 (3d Cir. 1992)). 1 The judge's order was
appealed only_bytheminer (who also filed his own discrimination action under section 105(c)(3)),
but the Secretary participated as an amicus curiae.
In Phillips, Commissioners Duffy and Young voted to affirm in result the judge's
dissolution of the temporary reinstatement order and dismissal of the temporary reinstatement
proceeding. They did so on the ground that, under the plain meaning of section 105(c), a
reinstatement order can only remain in effect while the Secretary is pursuing a section 105(c)(2)
action; once she had determined that discrimination has not occurred, reinstatement is no longer
appropriate. 31 FMSHRC at 980-89.

1

We note that in this case the judge relied on the Commission's disposition in Phillips,
which the judge described as affirming the judge's order below. 31 FMSHRC at 1420. To be
clear, the judge's decision in Phillips stood as if affirmed, because the Commission was evenly
split on the case. 31 FMSHRC at 979.
33 FMSHRC Page 29

Chairman Jordan and Commissioner Cohen voted to reverse the judge's order, and would
have had the temporary reinstatement order remain in effect. Chairman Jordan did so on the
ground that the plain language of section 105(c) mandates that temporary reinstatement continue
until the Commission issues a final order regarding the merits of the miner's allegations of
discriminatory conduct, whether it be under section 105(c)(2) or section 105(c)(3). Id. at 990-97.
Commissioner Cohen found the· language. of section 105(c) to be ambiguous, that deference was
due the Secretary's construction of the statutory provision, and that the Secretary's interpretation
of the provision to require that temporary reinstatement remain in effect while the miner pursues
relief under section 105(c)(3) is a reasonable one. Id. at 998-1004.

On review, the Secretary maintains that section l 05(c) can only be read one way: a
temporary reinstatement order must remain in effect until there is a final Commission order on the
merits of the miner's underlying discrimination complaint, regardless of whether that final order is
obtained pursuant to section 105(c)(2) by the Secretary, or by miner under section 105(c)(3).
S. Br. at 3-4. The Secretary takes issue with the opinion of the Commissioners Duffy and Young
in Phillips, both with regard to their conclusion that the Mine Act, by its plain meaning, prohibits
the continuation of temporary reinstatement beyond the Secretary's determination that no
discrimination occurred (S. Br. at 9-20), and their holding that the Secretary is not due deference
in her interpretation ofsection l 05(c) with respect to the question at hand because she does not
participate in section 105(c)(3) cases. Id. at 5-7; ·The Secretary also takes the position that,
because she has exclusive authority to apply for an order of temporary reinstatement, section
113(d)(2)(A)(i) of the Mine Act confers standing upon her to appeal a judge's decision to dissolve
such an order, because she is a "person adversely affected or aggrieved" by the judge's decision.
Id. at 20-28 (quoting 30 U.S.C. § 823(d)(2)(A)(i)).
North Fork responds that the Secretary lacks standing in this case because, by declining to
pursue Gray's discrimination complaint under section 105(c)(2), she has essentially removed
herself from the case. NF Br. at 3-4. North Fork maintains that temporary reinstatement is only
effective as iong as there is a complaint pending under section 105(c)(2), he it the miner's
complaint filed with the Secretary or the Secretary's complaint filed with the Commission. Id.
at 5-6. According to North Fork, because the miner's subsequent pursuit of his discrimination
claim under section 105(c)(3) is described therein as an "action," it does not serve to extend the
period duringwhich the miner may be temporarilyreinstated. Id. at 6-7. North Fork further
maintains that this interpretation of section 105(c) is supported by the legislative history of the
Mine Act, and that even if the Mine Act.was ambiguous on this point, the Secretary's
interpretation is not entitled to deference because the Secretary does not administer section
105(c)(3). Id. at 7-10. North Fork closes by arguing that to require that temporary reinstatement
survive a finding by the Secretary that there has been no discrimination would deprive operators
of due process oflaw. Id. at 11-14.
Gray in his initial brief chose to incorporate by reference the Secretary's brief. In his reply
brief, Gray disputes thatthe Secretary does not have a role in a discrimination case brought under
section 105(c)(3), and thus argues that herinterpretation of section 105(c) is entitled to deference

33 FMSHRC Page 30

and that she has standing to appeal the judge's dissolution order in this case. G. Reply at 1-3.
Gray further contends that the multiple references in section 105(c)(2) to the "complaint" filed by
the miner with the Secretary makes it impossible to hold that the reference to ''pending final order
on the complaint" can only mean the complaint filed by the Secretary with the Commission. Id. at
4-5.
The Secretary responded to North Fork's due process argument in her reply brief. There,
she argues that the temporary reinstatement procedures of section 105(c)(2) have been upheld as
non-violative oftheDue Process Clause of the Fifth Amendment. S. Reply Br. at 2-7. According
to the Secretary, any additional period of time a miner is reinstated while a section 105(c)(3) case
is litigated does not deprive the operator of due process. Id. at 7-10.

A.

Stan dine

Section 113(d)(2)(A)(i) of the Mine Act provides that "[a]ny person adversely affected or
aggrieved by a decision of an administrative law judge, may file and serve a petition for
discretionary review by the Commission." 30 U.S.C. § 823(d)(2)(A)(i). Thus, we must decide
whether, in the circumstances of this case, the Secretary is a "person adversely affected or
aggrieved" by the judge's decision and, thus possessed of standing to petition for review of that
decision. We conclude that she does.

In Mid-Continent Resources, Inc, 11 FMSHRC 2399 (Dec. 1989), the Commission
determined that the appropriate question was whether the entity seeking review has
shown a direct and concrete interest in this litigation and
·demonstrated that the outcome below has had an adverse impact on
that interest. We stress at the outset that not every disagreement
, with a judge's decision amounts to a legally recognizable interest
that is adversely affected. Rather, more substantial involvements
such as a direct stake in the property or events that.are the subject of
the litigation, some concrete involvement in the controversy
between the parties, or some direct effect of the judgment on a
recognizable interest of the nonparty are required.

Id. at 2403. 2
The Secretary easily meets this test. She clearly has demonstrated "some concrete
involvement in the controversy between the parties" (which suffices under the Commission's
disjunctive standard), as she filed the temporary reinstatement application and was a party in the
proceeding before the judge. The judge's decision in this case was issued over her strenuous

2

In Mid-Continent, an amicus in the proceedings before the judge sought party status on
review. Here, of course, the Secretary was a party at the trial level.
33 FMSHRC Page 31

objection. Moreover, the Secretary's interest in promoting miner safety and health is affected by
the outcome of this appeal, as the discontinuation of temporary reinstatement could have a
chilling effect on the willingness of miners to bring health and safety complaints. As ''the
designated champion of employees within [the] statutory scheme," the Secretary has a
recognizable interest in this appeal. See Director, OWCP v. Newport News Shipbuilding & Dry
Dock Co., 514 U.S. 122, 132-33 (1995).
Notably, under section 106(b) of the Mine Act, 30 U.S. C. § 816(b), the Secretary has the
right to obtain review of"any final order of the Commission" in a Court of Appeals. If Congress
authorized the Secretary to appeal· any adverse order of the Commission to the courts, it would be
illogical for her not to have the right to initially appeal the judge's adverse order to the
Commission.
We reject North Fork's argument, NF Br. at 3, that because the Secretary concluded that
section 105(c)(l) had "not been violated," she no longer has an interest in the temporary
reinstatement proceeding in which the judge upheld her determination that the miner's underlying
complaint was "not frivolously brought." These are not equivalent findings. ·Moreover, the
statutory scheme is replete with other rights and responsibilities of the Secretary in temporary
reinstatement proceedings and section 105(c)(3) discrimination matters, even when she has
withdrawn from the discrimination case. For example, as Gray notes in his brief, the Secretary is
still charged with issuing a civil penalty under section 1 lO(a) of the Act ifthe miner prevails.
30 U.S.C. § 820(a) .. She also has the rightto seek an injunction, restraining order, or other
appropriate order in federal court if the operator fails to pay that penalty or fails to comply with a
reinstatement order in a section 105(c)(3) case. 30 U.S.C. § 818(a)(l)(A). Thus, North Fork's
assertion that the Secretary has "essentially remove[ d] herself from the case," NF Br. at 3, quoting
Phillips, 31 FMSHRC at 987 (opinion of Commissioners Duffy and Young), is misplaced. In
sum, we find that the Secretary has standing to appear as a party in this appeal.

33 FMSHRC Page 32

B.

Statutory Interpretation

The question presented in this case is whether, under the provisions of section 105(c) of
the Mine Act,3 a temporary reinstatement order remains in effect after the Secretary has

3

Section 105(c) provides in part:
(c )( 1) No person shall discharge or in any manner
discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the exercise of
the statutory rights of any miner ... because such miner ... has
filed or made a complaint under or related to this Act ... .
(2) Any miner ... who believes that he has been
discharged, interfered with, or otherwise discriminated against by
any person in violation of this subsection may, within 60 days after
such violation occurs, file a complaint with the Secretary alleging
such discrimination. Upon receipt of such complaint, the Secretary
shall forward a copy of the complaint to the respondent and shall
cause such investigation to be made as he deems appropriate. Such
investigation shall commence within 15 days of the Secretary's
receipt of the complaint, and if the Secretary finds that such
complaint was not frivolously brought, the Commission, on an
expedited basis upon application of the Secretary, shall order the
immediate reinstatement of the miner pending final order on the
complaint. If upon such investigation, the Secretary determines
that the provisions of this subsection have been violated, he shall
immediately file a complaint with the Commission, with service
upon the alleged violator and the miner •.. alleging such
discrimination or interference and propose an order granting
appropriate relief The Commission shall afford an opportunity for
a hearing ... and thereafter shall issue an order, based upon
findings of fact, affirming, modifying, or vacating the Secretary's
proposed order, or directing other appropriate relief. Such order
shall become final 30 days after its issuance. The Commission
shall have authority in such proceedings to require a person
committing a violation of this subsection to take such affirmative
action to abate the violation as the Commission deems appropriate,
including, but not limited to, the rehiring or reinstatement of the
miner to his former position with back pay and interest. ...
(3) Within 90 days of the receipt of a complaint filed under
paragraph (2), the Secretary shall notify, in writing, the miner ....
33 FMSHRC Page 33

determined that the allegations made by the miner in his or her discrimination complaint filed
with MSHA do not constitute a violation of section 105(c)(1) of the Mine Act.
Under the Mine Act, a miner's temporary reinstatement remains in effect "pending final
order on the complaint." 30 U.S.C. § 815(c)(2). Because the plain language of the statute
mandates that temporary reinstatement continue until the Commission issues a final order
regarding the merits of the miner's allegations of discriminatory conduct, we reverse the judge's
order dissolving the miner's temporary reinstatement in this case.
A miner who alleges an illegal discharge may obtain temporary reinstatement in
accordance with section 105(c ), which provides in relevant part: .
[a]ny miner ... who believes that he has been discharged, interfered
with, or otherwise discriminated against by any person in violation
of this subsection may .•. file a complaint with the Secretary
alleging such discrimination. Upon receipt of such complaint, the
Secretary shall ... cause such investigation to be made as he deems
appropriate. Such investigation shall commence within 15 days of .
the Secretary's receipt of the complaint, and if the Secretary finds
that such complaint was not frivolously brought, the Commission,
on an expedited basis upon application of the Secretary, shall order
the immediate reinstatement of the miner pending final order on the
complaint.
30 U.S.C. § 815(c)(2) (emphasis added).

of his determination whether a violation has occurred. If the
Secretary, upon investigation, determines that the provisions of this
subsection have not been violated, the complainant shall have the
right, within 30 days notice of the Secretary's determination, to file
an action in his own behalf before the Commission, charging
discrimination or interference in violation of paragraph (1 ). The
Commission sh3.II afford an opportunity for a hearing . . . and
thereafter shall issue an order, based upon findings of fact,
dismissing or sustaining the complainant's charges and, if the
charges are sustained, granting such relief as it deems appropriate,
including, but not limited to,· an order requiring the rehiring or
reinstatement of the miner to his former position with back pay and
interest or such remedy as may be appropriate. Such order shall
become final 30 days after its issuance.
30 U.S.C. § 815(c).
33 FMSHRC Page 34

Upon completion of her investigation, the Secretary makes a determination as to whether
discrimination occurred; If the Secretary determines that the Act was violated, she must
"immediately file a complaint with the Commission." Id. If the Secretary concludes that no
violation occurred, she must notify the miner of that fact and the miner, pursuant to section
105(c)(3), has the right to ''file an action in his own behalf before the Commission, charging
discrimination or interference in violation of paragraph (l)." 30 U.S.C. § 815(c)(3). The issue in
this case is whether the temporary reinstatement remains in effect while the miner proceeds on his
own behalf to litigate his or her discrimination claim before the Commission.

In considering this question of statutory construction, we are mindful that our first inquiry
is "whether Congress has directly spoken to the precise question at issue." Chevron US.A. Inc.
v. Natural Res. Def Council, Inc., 467 U.S. 837, 842 (1984); Thunder Basin Coal Co., 18
FMSHRC 582, 584 (Apr. 1996). If a statute is clear and unambiguous, effect must be given to its
language. See Chevron, 467 U.S. at 842-43; accord Local Union 1261, UMWA v. FMSHRC,
917 F.2d 42, 44 (D.C. Cir. 1990). Deference to an agency's interpretation of the statute may not
be applied ''to alter the clearly expressed intent of Congress." K Mart Corp. v. Cartier, Inc.,
486 U.S. 281, 291 (1988) (citations omitted). In ascertaining the meaning of the statute, courts
utilize traditional tools of construction, including an examination of the "particular statutory
language at issue, as well as the language and design of the statute as a whole," to determine
whether Congress had an intention on the specific question at issue. Id.; Local Union 1261,
917F.2dat44; CoalEmploymentProjectv.Dole,889F.2d 1127, 1131 (D.C.Cir.1989). 4 Tue
issue before us is the duration of temporary reinstatement. Congress directly addressed this issue
in section 105(c)(2) of the Act, which directs the Commission to "order the immediate
reinstatement of the miner pending final order on the complaint" (emphasis added). We conclude
that the plain language of the Mine Act clearly expresses the intent of Congress that a temporary
reinstatement order stays in effect until there is a final Commission order on the merits of the
miner's discrimination complaint to MSHA, whether that complaint is brought to the Commission
by the Secretary under section 105(c)(2) or by the miner under section 1OS(c)(3).
The legal question here involves the phrase "pending final order on the complaint." We
conclude that "complaint" in this context means that miner's complaint to MSHA. The language·
of section 105(c)(2) supports this view, as the phrase "pending final order on the complaint"
appears after five references to the miner's complaint to MSHA, and before any mention of the
Secretary's complaint to the Commission. We also note that in this case in particular, it must
refer to Gray's complaint to MSHA because, as Gray correctly points out, the Secretary's
complaint never existed in the case. G. Reply Br. at 5.

4

The examination to determine whether there is such a clear Congressional intent is
commonly referred to as a "Chevron l' analysis. See Coal Employment Project, 889 F.2d at
1131; Thunder Basin, 18 FMSHRC at 584; Keystone Coal Mining Corp., 16 FMSHRC 6, 13
(Jan. 1994).
33 FMSHRC Page 35

The reference to ''final order" refers to the Commission 's final order, and not a
determination by the Secretary. Our dissenting colleagues have previously indicated their
agreement on this point. See Phillips, 31 FMSHRC at 981. The Mine Act sets forth the method
by which the Commission issues a final order in a discrimination proceeding.· If, after conducting
her investigation, the Secretary decides that the Act has been violated, pursuant to section
105(c)(2) she is required to file a complaint with. the Commission and to "propose an order
granting appropriate relief." 30 U.S.C. § 815(c)(2). The Commission, after affording an
opportunity for a hearing, is required to "issue an order, based upon findings of fact, affirming,
modifying, or vacating the Secretary's proposed order, or directing other appropriate relief." Id.
The Commission's order "become[s] final 30 days after its issuance." Id.

If the Secretary notifies the miner of her determination that no violation of section
105(c)(l) occurred, "the complainant," pursuant to section 105(c)(3), is entitled to ":file an action
in his own behalf before the Commission." 30 U.S.C. § 815(c)(3). The Commission is required
to afford an opportunity for a hearing and to "issue an order based upon findings of fact,
dismissing or sustaining the complainant's charges and, if the charges are sustained, granting such
relief as it deems appropriate." Id. This Commission order "become[s] final 30 days after its
issuance." Id.
Thus, in accordance with the plain meaning of the statute, there is no "final order on the
complaint". until the Commission issues an order which either affirms, modifies, or vacates the
Secretary's proposed order in accordance with section 105(c)(2); or dismisses or sustains the
complainant's charges in accordance with section 105(c)(3). It is clear that a final order in either
case must be based on the Commission's findings of fact and the. Commission's determination of
whether discriminatory conduct in violation of section 105(c)( 1) occurred. 5
There has been no final Commission order on Gray's complaint. Therefore, the statutory
prerequisite ~hat would justify dissolution of his temporary reinstatement order is lacking.
Although our affirming colleagues appear to treat it as such, the judge's order dissolving the
miner's temporary reinstatement cannot constitute the prerequisite "final order on the complaint."
To consider it in this manner would amount to a ruling that the final order on the complaint,
necessary to dissolve the temporary reinstatement, is the order dissolving the temporary
reinstatement.

5

North Fork contends that ifthe miner does not choose to go forward under section
105(c)(3 ), under our view of the statutory language there would never be a Commission final
order on the discrimination complaint. NF Br. at 7. Since temporary reinstatement remains in
effect "pending a final order on the complaint," the temporary reinstatement could never be
dissolved. However, the requirement that temporary reinstatement remain in effect "pending
final order on the complaint" necessarily implies that there is a possibility of obtaining a
Commission final order on the discrimination complaint under sections 105(c)(2}or 105(c)(3).
In the event the miner foregoes that possibility, obviously the temporary reinstatement provision
would no longer be applicable.
33 FMSHRC Page 36

The judge did not dissolve the miner's temporary reinstatement because of a final
Commission order. The judge never considered the merits of Gray's claim. The sole basis of the
judge's decision was the Secretary's determination that a violation of section 105(c) had not
occurred, and her notification that she would not be filing a complaint on the miner's behalf.
Although they agree that the Secretary's determination regarding the results of her
investigation does not constitute a final order under section 105(c), our colleagues nevertheless
proceed to make the duration of the temporary reinstatement contingent on just this determination.
Ignoring the statute's plain language, they conclude that if the Secretary determines that there has
been no discrimination, the temporary reinstatement order would cease to be effective, and the
judge should issue an order dissolving the temporary reinstatement and dismissing the temporary
reinstatement proceeding. 31 FMSHRC at 981-82. The statute requires a final order from the
Commission, not a determination from the Secretary, in order to dissolve a grant of temporary
reinstatement. Our colleagues fail to realize that the judge lacked the necessary statutory
prerequisite for dissolving the temporary reinstatement because no final order had been issued on
the miner's complaint.
Our colleagues have been led astray by their narrow focus on section 105(c)(3)'s reference
to the complainant's right to file an "action" in his own behalf before the Commission. 6 They
consider the reference to filing an "action" under section 105(c)(3) as an indication that there no
longer exists a complaint that can be the subject of a Commission order. Since temporary
reinstatement stays in effect pending the Commission's "final order on the complaint," initiating
an "action" under section 105(c)(3) must, in their view, extinguish the miner's temporary
reinstatement. Id. at 981. Our colleagues' position is untenable in light of the pertinent statu~ory
language and the Commission case law.
Much as our colleagues would like to erect an impenetrable analytical barrier between the
miner's initial.filing of a discrimination complaint to the Secretary and the miner's subsequent
action before the Commission, neither the statutory language nor the Commission case law permit
them to do so. Although section 105(c)(3) refers to an "action" before the Commission, the
person who files this action is referred to in that section as the "complainant." 30U.S.C.
§ 815(c)(3) (emphasis added). Thereafter, the Commission is instructed to afford an opportunity
for a hearing and to •'issue an order based upon findings of fact, dismissing or sustaining the
complainant's charges." Id. (emphasis added). The reference to "complainant" is an
acknowledgment that the proceeding under section 105(c)(3) involves the same alleged
discriminatory conduct that prompted the miner's complaint to the Secretary under section
105(c)(2). The statute does not direct the miner to file a complaint under section 105(c)(3)
because the miner has already filed a complaint. That is why the miner is referred to in section
105(c)(3) as the "complainant."

6

Section 105(c)(3) states that "the complainant shall have the right, within 30 days of
notice of the Secretary's determination, to file an action in his own behalf before the
Commission." 30 U.S.C. § 815(c)(3).
33 FMSHRC Page 37

Commission rulings have made that fact clear. In Hatfield v. Co/quest Energy, Inc.,
13 FMSHRC 544 (Apr. 1991), the operator argued that the complainant's amended filing pursuant
to section 105(c)(3) differed too substantially from his complaint filed with the Secretary. The
Commission agreed that the proceeding under section 105(c)(3) must be based on the matter
initially investigated by the Secretary under section 105(c)(2) or else ''the statutory prerequisites
for a complaint pursuant to § 105(c)(3) have not been met" Id. at 546 (emphasis added); accord
Sec'y on behalf ofDixon v. Pontiki Coal Corp., 19 FMSHRC 1009(June 1997). The
Commission's reference to the section 105(c)(3) proceeding as a "complaint'' in Hatfield was not
an isolated occurrence. In Roland v. Secretary of Labor, 7 FMSHRC 630 (May 1985), the
Commission pointed out that "[s]hould the Secretary determine that no discrimination has
occurred, the miner, pursuant to section 105(c)(3) ... may file a discrimination complaint on his
own behalf before the Commission." 7 FMSHRC at 635 (emphasis added).
Additional language in the Mine Act refutes the contention that Congress considered
claims brought under section 105(c)(2) and (c)(3) to be such entirely separate proceedings, that
they deemed it appropriate to provide temporary reinstatement pursuant to only one of them.
Section 105(c )(3) states that "[p]roceedings under this section shall be expedited by the Secretary
and the Commission." 30 U.S.C. § 815(c)(3). This mandate, however, undeniably applies to
section l05(c)(2) actions as well (otherwise the reference to the Secretary:mak:es no sense).
Indeed, the Commission has interpreted it in this manner. See Sec'y on behalfofNoe v. J & C
Mining, LLC, 22 FMSHRC 705, 706 (June 2000)(stating, in a section 105(c)(2) case, that''the ·.
Commission will be expediting these proceedings as it is statutorily required to do"). Likewise,
section 105(c)(3) refers to Commission orders issued "under this paragraph" being "subject to
judicial review In accordance with section 106." 30 U.S.C. § 815(c)(3). Clearly, however,, a
Commission order issued under section 105(c)(2) is also subject to judicial review.
The legislative history of the Mine Act underscores the strained nature of our colleagues'
reading ofth~ statute. The Conference Report states that:
The Commission must afford an opportunity for a hearing, and ·
thereafter, issue an order, based upon findings of fact, dismissing or
sustaining the complaint, and granting such relief as may be
appropriate. lfthe·complainantprevailed in an action which he
brought himself after the Secretary's determination, the
Commission order would require that the violator pay all expenses
reasonably incurred by the complainant in bringing the action.
S. Conf. Rep. No. 95-461, at 52-53 (1977), reprinted in Senate Subcomm. on Labor, Comm. on
Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 1330
(1978) ("Legis. Hist.") (emphases added). 7

7

To support their interpretation of current law, our colleagues rely on the language of
pending legislation, H.R. 5663 (the Robert C. Byrd Miner Safety and Health Act of2010) and its
33 FMSHRC Page 38

The Comniission' s Procedural Rules also demonstrate that the significance our colleagues
place on the use of the word "action" in section 105(c)(3), as opposed to the word "complaint" in
section 105(c)(2), is misplaced. Our rule clearly contemplates that a miner filing a claim under
section 105(c)(3) does so by filing a "complaint." Procedural Rule 40(b) s~ates:
A discrimination complaint under section 105(c)(3) of the
Act, 30 U.S.C. 815(c)(3), maybe filed by the complaining miner,
representative of miners, or applicant for employment ifthe
Secretary, after investigation, has determined that the provisions of
section IOS(c)(l) of the Act, 30 U.S.C. 815(c)(l), have not been
violated.
29 C.F.R.§ 2700.40(b).
Our dissenting colleagues have found support, and our concurring colleague finds
ambiguity, in the Conference Report's instruction that the Secretary shall "seek temporary
reinstatement of the complaining miner pending final outcome of the investigation."
31 FMSHRC at 985 (citing S. Conf. Rep. No. 95-461, at 52 (1977), Legis. Hist. at 1330); slip op.
at 22-23. The literal application of this language, however, would result in the dissolution of the
temporary reinstatement order upon conclusion of the Secretary's investigation, even if the
Secretary determines that section 105(c)(l) was violated.

accompanying House committee report. Slip op. at 27-28. Ironically, that bill clarifies the Mine
Act to conforpi with our view of current law that temporary reinstatement remains in effect until
the Commission disposes of a discrimination complaint on the merits, whether or not the
Secretary pursues the complaint. H.R. 5663, 11 lth Cong.§ 401 (2010).
We believe the dissent's reliance is premature and misplaced, given that Congress has
not yet passed this legislation and could conceivably fail to enact it. Moreover, as one court has
noted:
The unpassed bills of later legislative sessions evoke conflicting
inferences. Some legislators might propose them to replace an
existing prohibition; others to clarify an existing permission....
The light shed by such unadopted proposals is too dim to pierce
statutory obscurities. As evidences of legislative intent they have
little value.

Sacramento Newspaper Guild v. Sacramento County Bd. ofSupervisors, 263 Cal. App.2d 41, 58
(1968).
33 FMSHRC Page 39

That the temporary reinstatement provision was hardly viewed in the cramped fashion
suggested by our colleagues is evidenced by the Senate Report, wherein the drafters explained
that:
The Committee feels that this temporary reinstatement is an
essential protection for complaining miners who may not be in the
financial position to suffer even a short period of unemployment or
reduced income pending the resolution of the discrimination
complaint.
S. Rep. No. 95-181, at 37, Legis. Hist. at 625.
Because, under section 105(c)(3), a miner "brings his own action at his.own expense and
is in charge of his case," 31 FMSHRC at 984, our affirming colleagues have concluded that the
need to account for hann due to "bureaucratic delay" does not exist. Id. Underlying this
statement is the unsubstantiated notion that somehow a miner in a section 105(c)(3) proceeding
will be able to control how quickly his or her case is resolved. Our affirming colleagues are
concerned that if a miner remains temporarily reinstated during a section 105(c)(3) proceeding;
there is little incentive for the miner to advance the proceeding expeditiously. 31 FMSHRC
at 986 n. 7. Of course, the corollary to this concern is that when the complainant miner is not
temporarily reinstated, there is every incentive for the respondent mine operator to delay the
section 105(c)(3) proceeding. While both scenarios are problematic, the appropriate question for
us to consider is: which one caused Congress greater concern?
By making temporary reinstatement dependent on a determination that the miner's
discrimination claim is "not frivolously brought," 30 U.S.C. § 815(c)(2), Congress "clearly
intended that employers should bear a proportionately greater burden of the risk of an erroneous
decision in a temporary reinstatement proceeding." Jim Walter Res., Inc. v. FMSHRC, 920 F.2d
738, 748 n.11 (11th Cir. 1990). 8 While the employer's loss ofits abilityto control its workforce is
not to be taken lightly, the legislative history of the Mine Act indicates that section 105(c)'s
prohibition against discrimination is to be "construed expansively to assure that miners will not be
inhibited in anyway in exercising any rights afforded by the legislation." S. Rep. No. 95-181,
at 36, Legis. Hist. at 624. Recognizing the important role that individual miners play in ensuring a
safe and healthy working environment, Congress was also acutely aware that "mining often takes
place in remote sections of the country where work in the mines offers the only real employment
8

Our colleagues invoke the Court's observation that "deprivation of an employer's right

to control the makeup of its workforce is only a 'temporary one that can be rectified by the
Secretary's decision not to bring a formal complaint or by a decision on the merits in the
employer's favor."' 31 FMSHRC at 986 (citing Jim Walter, 920 F.2d at 748 n.11 (emphasis in
original)). However, it appears the Court's comment was prompted by prior Commission Rule
44(f), 29 C.F.R. § 2700.44(f) (subsequently re-numbered as Commission Rule 45(g), 29 C.ER.
§ 2700.45(g)), id. at 741, rather than by an independent interpretation of the statute.
33 FMSHRC Page 40

opportunity." S. Rep. No. 95-181, at 35, Legis. Hist. at 623. The temporary reinstatement
provision was viewed as "an essential protection" for miners who might not be able "to suffer
even a short period of unemployment." S. Rep. No. 95-181, at 37, Legis. Hist. at 625. This
Congressional balancing of equities applies equally to a section 105(c)(2) case brought by the
Secretary, and to a section 105(c)(3) claim, brought by the miner on his own behalf after the
Secretary declines to go forward.
Temporary reinstatement is imposed pursuant to a Commission order that the miner's
discrimination claim was not frivolously made. The Secretary's decision not to proceed with the
discrimination complaint does not transform that complaint into a frivolous action. 9 To hold
otherwise would require us to conclude that Congress implemented a statutory provision (section
105(c)(3) of the Mine Act) devoted to the litigation of frivolous claims. To the contrary, not only
does the Secretary's negative determination not reduce the complaint to a frivolous claim, the
Commission has explicitly acknowledged that it "may find discrimination where the Secretary has
not" and that "the Secretary's determination not to prosecute [a] discrimination case ... is not
probative of whether [the operator] discriminated against the miners." Fort Scott FertilizerCullor, Inc., 17 FMSHRC 1112, 1117 (July 1995). fudeed, there have been numerous cases in
which the Secretary declined to file a complaint and the miner successfully proceeded on his own
behalf See, e.g., Ross v. Shamrock Coal Co., 15 FMSHRC 972, 974-76 (June 1993); Meek v.
Essroc Corp., 15 FMSHRC 606, 612-13·(Apr. 1993); Womackv. Graymont Western US, Inc.,
25 FMSHRC 235, 261-63 (May 2003) (ALJ); Adkins v. Ronnie Long Trucking, 21FMSHRC171,
176-77 (Feb. 1999) (ALJ); Paul v. Newmont Gold Co., 18 FMSHRC 181, 191 (Feb. 1996) (ALJ).
Consequently, because the Secretary's decision not to go forward on the miner's behalf
does not vitiate the previous finding that his or her complaint was not frivolously brought, the
temporary reinstatement, which is based on that finding, must remain in effect "pending final
order on the complaint." 10 Balancing the equities does not require the opposite conclusion.
Requiring the temporary reinstatement to remain in effe~t pending the miner's litigation under
section 105(c)(3) is no more inequitable than the Commission's determination that a temporary
reinstatement order remains in effect pending appeal to the Commission, notwithstanding the fact
that a Commission judge concluded, subsequent to a hearing on the merits, that no discrimination
occurred. See Sec'y on behalfofBernardyn v. Reading Anthracite Co.~ 21 FMSHRC 947, 949
(Sept. 1999). fu Bemardyn, the Commission recognized that the statutory language, providing for

9

We are mindful that the Secretary's determination is made without the benefit of
discovery or a full hearing.
10

fu Jim Walter, the Eleventh Circuit explained that the basis for a temporary
reinstatement order and the underlying merits of a miner's claim are "conceptually different," and
it ruled that the temporary reinstatement order was a collateral order completely separate from
the merits of the action. 920 F.2d at 744.
33 FMSHRC Page 41

temporary reinstatement "pencling final determination on the merits of the complaint," required
this result. 21 FMSHRC at 950. 11
In passing the Mine· Act, Congress created two different mechanisms for bringing
discrimination complaints, under which either the Secretary or the claimant may prosecute the
case. Under either procedure, the same underlying complaint (filed initially with MSHA) is at
issue. The statute clearly states that a temporary reinstatement order remains in effect pending a
final Commission order on this complaint. Here, there has been no such final order on the miner's
complaint. Thus, we reject the judge's conclusion that temporary reinstatement does not extend to
proceedings brought by a miner under section 105(c)(3). We hold that, pursuant to the plain
meaning of the Mine Act, a temporary reinstatement order remains in effect until there is a final
Commission order on the merits of the miner's underlying discrimination complaint, regardless of
whether the complaint is litigated by the Secretary under section 105(c)(2) or by the miner under
section 105(c)(3).

C.

Due Process

We also find the operator's due process challenge unavailing. In Jim Walter, the Court
held that the due process requirement that the operator be given the "opportunity to be heard 'at a
meaningful time and in a meaningful manner'" was clearly met by a temporary reinstatement
proceeding under section 105(c)(2) of the Mine Act. 920 F.2d at 748 (quoting Matthews v.
Eldridge, 424 U.S. 319, 333 (1976)). Despite the strenuous efforts ofNorth Fork to distinguish a
discrimination proceeding under section 105(c)(2) from that brought by a miner under section
105(c)(3), the reasoning of the Court in Jim Walter (regarding the due process afforded an
operator in a temporary reinstatement hearing) applies with equal force whether the underlying
discrimination proceeding continues under sections105(c)(2) or 105(c)(3). As the Court
explained:
At [the temporaryreinstatement hearing], the employer has the
opportunity to test the credibility of any witnesses supporting the
miner's complaint through cross-examination and may present his
own testimony and documentary evidence contesting the temporary
11

We recognize that in Bernardyn, the Commission refers to prior Procedural Rule
45(g), 29 C.F.R.§ 2700.45(g) (1999), which provided for dissolution of a temporary
reinstatement order if the Secretary determined that discrimination did not occur, as a "gap filling
provision designed to deal with a situation not addressed by the statute - the status of a
temporary reinstatement order following a determination by the Secretary that there has been no
violation of section 105(c). " 21 FMSHRC at 950. We believe this comment, which is dictum, to
be incorrect since we have concluded that the referenced situation is· addressed by the statutory
language "pending final order on the complaint" and requires the maintenance of temporary
reinstatement until there is a final determination by the Commission on the merits of the miner's
claim of discrimination.
33 FMSHRC Page 42

remstatement. ... Most importantly, section 105(c)(2) requires that
an independent decisionmaker determine whether a miner's
complamt in a particular dispute meets the "not frivolously brought"
standard.... [T]he statute grants [the employer] the right to seek an
adjudication from a neutral tribunal, prior to a deprivation of its
property mterest, with all the regalia of a full evidentiary hearing at
its disposal. Thus, the risk of an erroneous deprivation from the
standard of proof is substantially lessened by the provision of the
panoply of additional procedural guarantees in section 105(c)(2).
920 F.2d at 747-48. What North Fork neglects to point out is that the "panoply of additional
procedural guarantees in section 105(c)(2)" relied on by the Court in Jim Walters is identical
whether the subsequent discrimination case proceeds with or without the Secretary. In both
instances, there is a determination by an admmistrative law judge after an evidentiary hearing that
the miller's complaint was "not frivolously brought."
North Fork also argues that there is no "expeditious review" because a miner's case
brought pursuant to section 105(c)(3) can take years. NF Br. at 13. However, as we noted supra
at 12, Congress mandated in section 105(c)(3) that "[p]roceedings under this section shall be
expedited by the Secretary and the Commission." In addition, pursuant to the Commission's
procedural rules, an operator can always file a motion to expedite the case. Commission
Procedural Rule 52, 29 C.F.R. § 2700.52. Moreover, despite North Fork's argument that neither
the Mine Act nor its implementmg regulations establishes a deadline for section 105(c)(3) review,
this is also true of a discrimination case brought by the Secretary under section 105(c)(2).
North Fork also contends that there is no "reliable mitial check against mistaken
decisions" (in violation of the standard set forth by the Supreme Court in Brock v. Roadway
Express, Inc., 481U.S.252 (1987)), 12 when the Secretary decides not to file a section 105(c)(2)
complamt and reinstatement continues despite the Secretary's finding that no violation occurred.
NF Br. at 13. However, this claim is unpersuasive, as, consistent with Commission precedent,
reinstatement continues when a case is appealed to the Commission even after a judge determines
that no discrimination occurred. See Bernardyn, 21 FMSHRC at 949-50.
Consequently, we reject the operator's claim that the continuation of temporary
reinstatement violates the due process clause.

12

We note that in Brock, the Supreme Court held that the lack of an evidentiary hearing
before temporary reinstatement pursuant to the Surface Transportation Assistance Act did not
deny procedural due process. 481 U.S. at 258-68. Of course, in the case before us, an
evidentiary hearing was held and the judge ruled that the applicable legal standard of "not
frivolously brought" had been met.
33 FMSHRC Page 43

D.

Conclusion

The judge's order dissolving the temporary reinstatement is reversed. The miner is
ordered economically reinstated to his former position, retroactive to September 14, 2009,
including any pay increases, bonuses, and other benefits, as specified in the judge's September 17,
2009 order. See Sec'y on behalfof Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1091
(Oct. 2009).

~.·.,····~
•

•••••

•

•

..

'.:

:·.

>

•

Patrick K. Nakamura, Commissioner .

33 FMSHRC Page 44

Commissioner Cohen, concurring:
I concur with sections II.A. (standing) and 11.C (due process) of the opinion in these
proceedings by my colleagues Chairman Jordan and Commissioner Nakamura. I also concur in
result with section 11.B of their opinion, and join them in reversing the judge's order dissolving
Mark Gray's temporary reinstatement, and ordering Mr. Gray's economic reinstatement to his
former position, retroactive to September 14, 2009, at his former rate of pay.
I join with my colleagues in concluding that a temporary reinstatement order stays in effect
pending final resolution of a discrimination complaint filed with the Mine Safety and Health
Administration f'MSHA"). I write separately because I find that the relevant statutory language--,.
"pending final order on the complaint" - does not, as my colleagues conclude, have a plain
meaning. I therefore find that the Commission must defer to the Secretary's reasonable
interpretation of the statute. 1 This is the position larticulated in my opinion in Phillips v. A&S
Construction Co., 31 FMSHRC 975, 998 (Sept. 2009). Nothing that has been said or written in
this case has persuaded me to change my conclusions in Phillips.

I.
In order to determine whether Congress' intention as to the question at issue can be
gleaned from the "plain meaning" of the statutory language, we employ the "traditional tools of
statutory construction." Natural Res. Def Council, Inc. v. Browner, 57 F.3d 1122, 1125 (D.C.
Cir. 1995) (quoting Chevron, 467 U.S. at 843 n.9). These include examination of the statute's·.
text, legislative history, and structure, as well as its purpose. See Bell Atlantic Telephone
Cos. v. FCC, 131F.3d1044, 1047 (D.C. Cir. 1997); As the D.C. Circuit recognized in
Bell Atlantic, a court utilizes the text, history, and purpose of a statute to determine whether they
convey a plain meaning that requires a certain interpretation. Id. at 1049 (emphasis in original).

Statutory language is considered ambiguous if reasonable minds may differ as to its
meaning, and when-it is open to two or more constructions. 73 Am. Jur. 2d Statutes§ 114.
Consequently, we must determine "whether the language of[the] statute is susceptible to more
than one natural meaning." Taing v. Napolitano, 567 F.3d 19, 23 (1st Cir. 2009) (citation
omitted).

1

The first inquiry in statutory construction is ''whether Congress has directly spoken to
the precise question at issue." Chevron US.A. Inc. v. Natural Res. Def Council, Inc., 467 U.S.
837, 842 (1984). If a statute is clear and unambiguous, effect must be given to its language.
See id. at 842-43. If, however, the statute is ambiguous or silent on a point in question, a second
inquiry, commonly referred to as a "Chevron If' analysis, is required to determine whether an
agency's interpretation of a statute is a reasonable one. See id. at 843-44. Under Chevron II,
deference is accorded to "an agency's interpretation of the statute it is charged with administering
when that interpretation is reasonable." Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460
(D.C. Cir. 1994) (citing Chevron, 467 U.S. at 844).
33 FMSHRC Page 45

II.
The critical statutory language in this case is from section .105(c)(2) of the Mine Act, 30
U.S.C. § 815(c)(2): Upon a finding that a miner's complaint was Iiot "frivolously brought," the
Commission shall order "immediate reinstatement of the miner pending final order on the
complaint" (emphasis added). The entire Commission agrees that the phrase "final order'' refers
to an order of the Commission rather than an administrative determination of the Secretary not to
pursue the case. Phillips, 31 FMSHRC at 981 (opinion of Commissioners Duffy and Young),
991 (opinion of Chairman Jordan). Hence, the dispute relates to the meaning of the word
"complaint": Either it refers to the complaint the miner initially files with the Secretary of Labor
alleging discrimination, or it refers to the complaint the Secretary subsequently may file with the
Commission pursuant to section l05(c)(2).
The most natural reading of the text of the statute is that of the Secretary, Mr. Gray, and
my colleagues Chairman Jordan and Commissioner Nakamura. The word "complaint" is used
five times in section 105(c)(2) before the phrase "pending final order on the complaint" appears,
each time referring to the complaint filed by the miner with the Secretary. Only after the language
creating the right to temporary reinstatement is set forth does Congress refer to the "complaint"
filed by the Secretary with the Commission for the first time. Thus, the word "complaint" occurs
seven times in section 105(c)(2), and the first five times it clearly refers to the miner's complaint
filed with the Secretary.
Moreover, the word "complaint" is used three times in the sentence which includes the
phrase "pending final order on the complaint." The first two times, it clearly refers to the miner's
complaint with the Secretary. It is difficult to understand how Congress would use the word
''complaint'' twice to mean one thing and then, in the san1e sentence, use the same word to .refer to
something entirely different. The same word should not have multiple meanings when used in the
same sentenc,e. Lewis v. Philip Morris, Inc., 355 F.3d 515, 536 (6th Cir. 2004).
However, the statutory text is not free from ambiguity. The word "complaint" in section
105(c)(2) also refers to the complaint filed by the Secretary with the Commission ("If, upon such
investigation, the Secretary determines that the provisions of this subsection have been violated,
he shall immediately file a complaint with the Commission ... "). Under section I 05(c)(3), when
the Secretary declines to file a complaint with the Commission, the original "complainant" has a
right to file an "action" with the Commission. It can rationally be argued, as my colleagues
Commissioners Duffy and Young do, Phillips, 31 FMSHRC at 981 ~ 983-84, that the "action" filed
under section I 05(c)(3) is analytically different for purposes of temporary reinstatement than a
''complaint" filed under section 105(c)(2) by the Secretary. 2 Since the Word "complaint" is
susceptible to different meanings, I conclude that it is ambiguous; ·

2

Yet, it is the "complainant" who files the "action" under section l 05(c)(3), and
"complainant" would rationally refer back to the miner or other party who· originally filed the
complaint with the Secretary under section 105(c)(2).
33 FMSHRC Page 46

Moreover, each of the proponents claiming that the statute has a plain meaning can point
to a literal impossibility created by the other proponents' interpretation.
As Mr. Gray and Chairman Jordan and Commissioner Nakamura point out, if the
complaint to the Secretary is ''not :frivolously brought," section 105(c)(2) creates the right to
"immediate reinstatement of the miner pending final order on the complaint." G. Br. at 5; slip op.
at 8. The interpretation by Commissioners Duffy and Young that "complaint" refers to the
Secretary's complaint with the Commission is a literal impossibility because at the time that
temporary reinstatement comes into existence, the Secretary's complaint with the Commission is
not in existence. Indeed, as in this case, it may never come into existence. It is hard to understand
why Congress would have intended the phrase "pending final order on the complaint" to refer to
the Secretary's non-existent complaint, when the miner's complaint to the Secretary is already in·
existence.
However, Commissioners Duffy and Young point out a literal impossibility resulting from
the interpretation of Chairman Jordan and Commissioner Nakamura. Slip op. at 31. Assuming a
miner is placed in temporary reinstatement under section I 05(c)(2) and the Secretary does not file
a complaint with the Commission, if the miner does not file an "action" under section 105(c)(3),
the Commission will never have an opportunity to issue a "final order on the complaint." The
miner's complaint with the Secretary no longer exists, having perished with the Secretary's
finding of no discrimination upon investigation and the miner's failure to file an action within 30
days under section 105(c)(3). However, read literally, the right to temporary reinstatement
continues because there has been no final order by the Commission on the complaint. Clearly,
Congress did not intend this result either. Chairman Jordan and Commissioner Nakamura assert
that if the miner does not file an action under section 105(c)(3), "obviously the temporary
reinstatement provision would no longer be applicable." Slip op. at 10 n.5. I agree that temporary
reinstatement ceases in this scenario, but I do not think it is "obvious" under a literal reading of
the statute;
Thus the literal impossibilities created by each of the "plain meaning" interpretations of
the statute confirm that the statute actually is ambiguous.

In terms of the statute's structure, Commissioners Duffy and Young describe a "two-track
system" where the miner's "complaint" in section 105(c)(2) is distinctly different from the
miner's "action" in section 105(c)(3). Phillips, 31 FMSHRC at 983-84; According to them,
temporaryreinstatement applies in section 105(c)(2) cases but not in section 105(c)(3)
proceedings. Id. However, this analysis is undercut by the fact that section 105(c)(3) contains
three provisions which are not explicitly stated in section 105(c)(2), but which are clearly
applicable to 105(c)(2):
Proceedings under this section shall be expedited by the Secretary
and the Commission. Any order issued by the Commission under
this paragraph shall be subject to judicial review in accordance with

33 FMSHRC Page 47

section 106. Violations by any person of paragraph (1) shall be
subject to the provisions of sections 108 and llO(a).
30 U.S.C. § 815(c)(3). Indeed, if the Secretary is uninvolved with proceedings under section
105(c)(3 ), as Commissioners Duffy and Young, suggest, then there would be no reason for
Congress to say that the Secretary, together with the Commission, is charged with expediting
proceedings "under this section."
Commissioners Duffy and Young assert that if, upon investigation, the Secretary
determines that the provisions of section 105(c) have not been violated, "[a]s a practical matter,
this terminates the Secretary's involvement in the case." Slip op. at 29. This statement assumes
that the miner is unsuccessful in his action under section 105(c)(3 ). But if the miner should . .
prevail in this action, then, as Mr. Gray points out, the Secretary must issue a civil penalty to the
operator under section l lO(a), and may seek an injunction, restraining order, or other appropriate
order in federal district court under section 108 if the operator, for example, should fail to comply
with an order to reinstate the prevailing miner or fail to pay the civil penalty assessed in the case.·
G. Br. at 2. Thus, "as a practical matter" the Secretary's involvement is terminated only if the
miner doesn't prevail. 3
With regard to the legislative history, as I pointed out in my opinion in Phillips, 31
FMSHRC at 1001, it maybe read to support either of the conflicting interpretations.
The Secretary relies on the Senate Report, which states that Congress intended that section
105(c) "be construed expansively to assure that miners will not be inhibited in any way in
exercising any rights afforded by the legislation." S. Rep. No. 95-181, at 36 (1977), reprinted.in
Senate Subcomm. on Labor, Comm. on Human Res., Legislative History ofthe Federal Mine
Safety and Health Act of1977, at 624 ("Legis. Hist."). The Secretary quotes the same report to·
the effect that upon determining that the complaint was not frivolously brought, she shall seek "an
order of the Commission temporarily reinstating the complaining miner pending.final outcome of
the investigation and complaint"· as "an essential protection for complaining miners who may not
be in the :financial position to suffer even a short period of unemployment or reduced income
pending the resolution of the discrimination complaint." S. Br. at 17-19 (citing S. Rep. No. 95181, at 37, Legis. Hist. at 625 (emphasis in brief)).
In contrast, Commissioners Duffy and Young cite the Conference Report, which states that
the Conference Committee adopts the Senate version of the provision, but which,:according to the
Conference Committee, provides that if the complaint was not frivolously brought, the Secretary·
shall "seek temporary reinstatement of the complaining miner pending the final outcome ofthe
investigation." Phillips, 31 FMSHRC at 985 (citing S. Conf. Rep. No. 95-461, at 52-53 (1977),
Legis. Hist. at 1330-31) (emphasis in opinion of Commissioners Duffy and Young).

Even so, the Secretary may have b~ome involved to expedite the proceedings under
section 105(c)(3).
3

33 FMSHRC Page 48

Thus, the Conference report referred to temporary reinstatement until completion of the
investigation (if the Secretary did not find discrimination), while the Senate Report spoke of
temporary reinstatement until the resolution of the entire complaint. The legislative history can be
interpreted quite differently depending mi which report is quoted.
Commissioners Duffy and Young assert that a provision of the proposed Robert C. Byrd
Miner Safety and Health Act of 2010 ("proposed Byrd Act"), H.R. 5663, supports their view that
termination of a miner's .temporary reinstatement is mandated by the plain meaning of section
105(c)(2) of the existing Mine Act upon the Secretary's investigative finding of no discrimination.
Slip op. at 27-28. The proposed Byrd Act, as approved by the House Committee on Education
and Labor on July21, 2010, would amend the temporary reinstatement provision of the Mine Act
so as to clearly state that a miner's temporary reinstatement continues until all proceedings on the
miner's discrimination complaint are concluded, irrespective of whether the Secretary files a
complaint with the. Commission. Commissioners Duffy and Y oling insist that this Congressional
proposal is a '"vindication" of their view that under existing law an order of temporary
reinstatement must be dissolved ifthe Secretary does not file a discrimination complaint with the
Commission. Id. They base this assertion on the fact that H.R. Rept. No. 111-579, which
contains the proposed Byrd Act, does not state that Phillips was ''wrongly decided." Id. at 28.
In point of fact, (1) Phillips was not "decided" at all but rather was a 2-2 tie vote of the
Commission which allowed the underlying ALJ decision to stand, and (2) the discussion of the
provision in House Rept. No. 111-579 does not address either the time or the circumstances when
temporary reinstatement ceases. See House Rept. No. 111-579, Part I, at 42 (Summary of Bill),
62-63 (solution to the problem of protecting miners from retaliation), arid 98-99 (Section-bySection analysis) (2010). The likelihood is that the drafters of the proposed Byrd Act recognized
that present section 105(c) is ambiguous.
Hence, I conclude that the statute is ambiguous, a conclusion reinforced by the
Commission'~ previous statement that "the status of a temporary reinstatement order following a
determination by the Secretary that there has been no violation of section 105(c )" is "a situation
not addressed by the statute." Sec '.Yon behalfofBernardyn v. Reading Anthracite Co.,
21 FMSHRC 947, 950 (Sept. 1999) (emphasis added). If the Commission decided in Bemardyn
that the statute is ambiguous, it is difficult to understand the Commission now saying that the
statute has a plain meaning.

III.
Since the statute is ambiguous, Chevron II requires the Commission to defer to the
interpretation of the Secretary, if that interpretation is reasonable. As stated in Energy West,
40 F.3d at 460, ''we will defer to an agency's interpretation of the statute it is charged with
administering when that interpretation is reasonable." Commissioners Duffy and Young assert
that, assuming the statute is ambiguous, this is not a case where the Commission is required to
defer to the reasonable interpretation of the Secretary. Slip op. at 31 n.5. I disagree~ and conclude
that the principle of deference is plainly applicable.

33 FMSHRC Page 49

Commissioners Duffy and Young assert that the principle of deference does not apply here
because, within the Energy West Mining :framework, section 105(c) is not a "statute [the
Secretary] is charged with administering." According to my colleagues, the Secretary "admits that
section 105(c) has been specifically designed to give the Commission, and not the Secretary; the
final word in discrimination cases under the Mine Act." Id. (emphasis in original). However, my
colleagues misconstrue the Secretary's position. In terms of deference principles, the Fourth
Circuit, in Secretary ofLabor on behalf of Wamsley v. Mutual Mining, Inc., 80.F.3d 110 (4th Cir.
1996), analyzed an analogous situation involving whether, under section I 05(c) of the Mine Act,
unemployment compensation should be deducted from a back pay award. The Secretary and the
Commission proposed conflicting answers. The Secretary claimed deference for her interpretation
and the mine operator claimed deference for the Commission's interpretation. The Court
concluded that it was the Secretary, based on her "constant contact with the daily operations of the
mines;" who was entitled to deference. Id. at 113-15. As a decision involving consideration of
deference in the context of a discrimination case, Wamsley has controlling weight.
Thus, since the statuteis ambiguous, it is part of the Secretary's function to offer an
interpretation of the parameters of temporary reinstatement under the Act. Pursuant to Chevron II
and its progeny, the Commission must defer to it if is reasonable. 4

IV.
The final inquiry is whether the Secretary's interpretation of the statute is reasonable. As I
stated in Phillips, 31 FMSHRC at 1002-04, the Secretary's interpretation is reasonable, and
therefore entitled to deference. See Secy ofLabor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir.
2003).
As indicated above, and in. the opinion of Chairman Jordan and Commissioner Nakamura,
the Secretary's interpretation that temporary reinstatement must be continued if a miner proceeds
in a discrimination action under section 105(c)(3) is consistent with the text of the statute, the
structure of the statute, and one version of the legislative history.. It is also consistent with the
purpose of the s41tute.
4

Commissioners Duffy and Young, quoting the Secretary's acknowledgment that she
maybe wrong in failing to find a violation of section 105(c)(l) in a specific case (as evidenced
by the fact that in numerous cases over the years, a miner prevailed in a section 105(c)(3) action
even though the Secretary declined to file a complaint under section 105(c)(2)), S. Br. at 17, also
assert that it is "not logical" for the Secretary to claim deference as to general legal principles
relating to temporary reinstatement. Slip op. at 31 n.5. However, the :flaw in logic is on the part
of my colleagues, not the Secretary. The fact that the Secretary may be wrong in failing to detect
discrimination in particular cases (after an investigation lacking the tools of discovery and
subpoena power) is entirely unrelated to whether deference should be given to the Secretary's
interpretation of the temporary reinstatement provision, assuming that interpretation is
reasonable.
33 FMSHRC Page 50

Commissioners Duffy and Y ming assert, essentially, that if the Secretary finds, upon
investigation, that the statute was not violated, it renders the Commission's determination that the
miner's complaint was "not frivolously brought" a nullity. However, temporary reinstatement
during the litigation of a discrimination complaint is a provisional measure. The requirement of
"not frivolously brought" is a lesser hurdle than proof of the ultimate fact of discrimination. See
Jim Walter Res., Inc. v. FMSHRC, 920 F.2d 738, 744 (11th Cir. 1990) ("The temporary
reinstatement hearing merely determined whether the evidence mustered by the miners to date
established that their complaints are nonfrivolous, not whether there is sufficient evidence of
discrimination to justify permanent reinstatement."). Hence, it is not inconsistent for the
Secretary to say that her investigation (without discovery or subpoena power) may not have found
discrimination, but the miner is still entitled to temporary reinstatement if he chooses to file an
action under section 105(c)(3). fudeed, unless our holding in Bernardyn., supra (temporary
reinstatement order remains in effect pending appeal to the Commission after a Commission judge
concludes that discrimination was not proven), was wrongly decided, which my colleagues do not
assert, it would be incongruous to conclude that temporary reinstatement must cease upon the
Secretary's investigative finding of no discrimination. After all, the judge who found no
discrimination in Bernardyn did so after discovery and a full evidentiary hearing, a much more
thorough proceeding than the Secretary's initial investigation in this case.
Moreover, a finding that a discrimination complaint was "not :frivolously brought" is made
by a Commission judge after a hearing.5 It is no more dependent on the Secretary's investigative
finding that a violation of the statute did not occur than is a Commission judge's finding in an
operator's appeal from a citation that a violation of a mandatory safety standard did occur.
The Secretary has a vital interest in ensuring that miners who file section 105(c)
complaints are entitled, as a class, to temporary reinstatement until the Commission issues a final
order - regat.dless of whether the Secretary has determined, for whatever reason, that a miner has
not demonstra~ed to her satisfaction that discrimination has occurred in a particular case. Because
"enforcement of the [Mine] Act is the sole responsibility of the Secretary," Sec '.Y ofLabor v.
Twentymile Coal Co., 456 F.3d 151, 161 (D.C. Cir. 2006), she has an interest in ensuring that
section 105(c) is interpreted in an expansive manner, as vigorous protection for miners who make
safety complaints. The unfettered right of miners to complain about safety issues without fear of
economic penalty is an important and necessary adjunct to the Secretary's effective enforcement
of the Act. The legislative history of the Mine Act clearly demonstrates the importance Congress
attached to temporary reinstatement, and its concern about miners who would otherwise be out of
work while their discrimination complaints were being processed: "[T]emporary reinstatement is

5

As Chairman Jordan and Commissioner Nakamura note, slip op. at 16-17, it is the right
to a hearing which protects the operator's due process rights. See Jim Walter, supra. I note that
when Jim Walter was decided, Commission Rule 45(g) required that temporary reinstatement
end when the Secretary decided not to proceed under section 105(c)(2). In 2006, the
Commission revised Rule 45(g) so as to delete this provision. 71 Fed. Reg. 44,190, 44,199
{Aug. 4, 2006).
33 FMSHRC Page 51

an essential protection for complaining miners who may not be in the financial position to suffer
even a short period of unemployment pending the resolution of the discrimination complaint."
S. Rep. No. 95-181, at 37, Legis. Hist. at 625 (emphasis added).
·Anything that could potentially interfere with or diminish the willingness of any miner to
complain about safety in his or her workplace - including the prospect of being fired in retaliation
for complaining and not having the right to temporary reinstatement at any point before a final
resolution of the complaint - would thwart the Secretary's overarching mission to make our
nation's mines safer. It would also assign to the complaining miner all risk of error when it is the
miner who is least able to bear such risk. See Jim Walter, 920 F.2d at 748 n.11 (Congress "dearly
intended that employers should bear a proportiOnately greater burden of the risk of an erroneous
decision in a. temporary reinstatement proceeding"). I find that to cut off a complaining miner's
entitlement to the protections afforded by temporary reinstatement.at any time before his or her
complaint has been fully adjudicated is at odds with what the Mine Act stands for.
Hence, I conclude that the judge erred when he issued ah 0rder dissolving Mark Gray's
temporary reinstatement, and join with my colleagues in the majority ill reversing that order, and
restoring to Mr. Gray the economic benefits of his former position.

Robert F. Cohen, Jr., Commissioner

33 FMSHRC Page 52

Commissioners Duffy and Young, dissenting:
We continue to hold to the view on this issue we expressed in our opinion upholding the
judge's decision to dissolve the order of temporary reinstatement in Phillips v. A&S Construction
Co., 31FMSHRC975, 980-89 (Sept. 2009). As we expressed in that case, the structure of and
language used in section 105(c) of the Mine Act, 30 U.S.C. § 815(c), as well as the legislative
history and historical background of the provision, 1 leads to only one conclusion: the availability
of the temporary reinstatement remedy is inextricably linked to the Secretary's continued
participation before the Commission in the reinstated miner's complaint of unlawful termination
under the Act. Once the Secretary has, for whatever reason,· chosen to end her participation in the
underlying discrimination case, the extraordinary right to temporary reinstatement ceases, and the
judge has no choice but to dissolve the order of reinstatement. That is the case where the
Secretary has refused to go forward with a complaint of discrimination under section I 05(c)(2), as
she has here, and where she has filed such a complaint but refused to follow through with a
hearing before a Commission judge, as she has in the companion case we issue today, Baird v.
PCS Phosphate Company, Docket No. SE 2010-74-DM.

If anything, legislative events since the Commission issued its Phillips decision have
confirmed that this was the position of Congress when it enacted the Mine Act and section 105(c).
On July 21, 2010, the House Committee on Education and Labor approved H.R. 5663, the Robert
C. Byrd Miner Safety and Health Act of2010. Section 401 of the bill would amend the temporary
reinstatement provisions of the Mine Act to read as follows in a new section 105(c)(3)(B):
(B) REINSTATEMENT.-Ifthe Secretary finds that [the
discharged employee's discrimination] complaint [to the Secretary]
was not frivolously brought, the Commission, on an expedited basis
upon application of the Secretary, shall order the immediate
. reinstatement of the miner or other employee until there has been a
final Commission order disposing of the underlying complaint of
the miner or other employee. If either the Secretary or the miner or
other employee pursues the underlying complaint, such
reinstatements shall remain in effect until the Commission has
disposed of such complaint on the merits, regardless of whether the
Secretary pursues .such complaint by filing a complaint under
subparagraph (D) or the miner or other employee pursues such
1

Our colleagues Chairman Jordan and Commissioner Nakamura question whether the
literal language of the Conference Report on the Mine Act should be looked to in discerning
legislative intent. Slip op. at 13. In Phillips, however, we did not state that the report language
in question should be taken literally; rather, we cited it as a strong indication that the ultimate
drafters of the Mine Act viewed the Secretary's continued participation in the discrimination
proceedings as a prerequisite to the miner's continued right to temporary reinstatement.
See Phillips, 31 FMSHRC at 985.
33 FMSHRC Page 53

complaint by filing an action under paragraph (4). If neither the
Secretary nor the miner or other employee pursues the underlying
complaint within the periods specified in paragraph (4), such
reinstatement shall remain in effect until such time as the
Commission may, upon motion of the operator and after providing
notice and an opportunity to be heard to the parties, vacate such
complaint for failure to prosecute.

Cf Chisom v. Roemer, 501 U.S. 380, 396 (1991) (revisions and lack ofrevisions in subsequent
legislation, as well as silence in extensive legislative history, taken into account in discerning
legislative intent).
H.R. 5663, should it eventually become law, would give the Secretary in future cases
exactly what she is seeking in this case through her petition for review. The extent of the right to
temporary reinstatement is a policy choice best entrusted to Congress, not shifting Commission
majorities or a Secretary of Labor tempted to save resources by sponsoring a miner only for
temporary reinstatement but leaving him to fend for himself in the subsequent, more rigorous,
discrimination proceeding.
Morever,.there·is no indication that the House Education and Labor Committee views the
result in Phillips as having been contrary to existing law. The report that accompanies the bill is
not reticent in discussing relevant administrative and court decisions under existing law.
However, while the report mentions three separate times that the bill would change the Mine
Act's anti-discrimination provisions, in none of those instances does it state that Phillips was
wrongly decided under the version of section 105(c) that is now in effect. See H.R. Rep. No. 111579, Part 1, at 42 (SummaryofBill), 62-63 (solution to the problem of protecting miners from
retaliation), and 98-99 (Section-by-Section Analysis) (2010). Consequently, we view the apparent
necessity to revise section 105(c) as a vindication of our view that, under existing law, the judge
has no choice but to dissolve temporary reinstatement upon the Secretary's exit from the
underlying discrimination proceeding.
Congress - that body whose laws we enforce, consistent with its intent - is hardly alone in
viewing the miner's action and remedies as separate from those pursued by the Secretary. Our
administrative law judges have considered that a miner who disclaims any private remedy
effectively terminates his case before the Commission. See Alvarez v. Loudoun Quarries,
32 FMSHRC 1346, 1349-50 (Sept. 2010) (ALJ) (complainant's unqualified rejection of_
reinstatement from point of termination to present renders claim moot because damages are
precluded); Sonney v. Alamo Cement Co., 29 FMSHRC 310, 312-15 (Apr. 2007) (ALJ) (claim is
moot ''when it is impossible for the court to grant any effectual relief' to a prevailing party)
(emphasis added, citations omitted). Thus, the notion advanced here that the Secretary's public
duty continues in the miner's private case is alien to and unprecedented in our jurisprudence.

33 FMSHRC Page 54

This is critical, because the temporary reinstatement the Secretary secures for the miner,
pending her investigation and determination of whether a violation of the Act has occurred or not,
is inextricable from her public duty as the steward of the Act and the protector of the rights of
miners who labor under it. She has a duty to faithfully and thoroughly investigate the underlying
facts, and that duty runs not only to the individual miner whose complaint to the Secretary
initiates the investigation, but to all miners. But the Act goes further in defining her obligations:
"If the Secretary, upon investigation, determines that the provisions of this subsection have not
been violated," she is required to notify the claimant, who may initiate an action on his or her own
behalf. 30 U.S.C. § 815(c)(3). As a practical matter, this terminates the Secretary's involvement
in the case. 2
This public duty must be related back contextually to the original action initiated by the
Secretary for temporary reinstatement. Importantly, the initial determination as to whether or not
the complaint is frivolously brought is made by the Secretary. Yet this determination is made
before the completion of the investigation the law requires her to undertake. Our colleagues
Chairman Jordan and Commissioner Nakamura downplay the significance of the investigation
commanded by the statute, stating that the Secretary's determination is made without the benefit
of discovery or a full hearing. Slip op. at 15 n.9. There are several manifest weaknesses in this
argument.
First, the initial determination of non-frivolousness is also made without discovery, and
the hearing provided for is exceedinglynarrow, with a forgiving standard of proof. Second, while
the Secretary does not have the benefit of discovery, she has access, through her investigatory
powers, to both sides of the case, presumably including witnesses and documentation. Third, it is
the Secretary's burden to establish, by a preponderance of the evidence, that discrimination has
occurred. That is the purpose of the hearing. Yet her determination must be grounded, not on an
unlikelihood that her action will be successful, but on a determination by the Secretary, after a
"full administr,ative investigation," see Hatfield, 13 FMSHR.C·at 545 (emphasis added), "that the
provisions of this subsection have not been violated." 30 U.S.C. § 815(c)(3) (emphasis added).

2

Our colleagues observe that we have held that a miner's action under section 105(c)(3)
must be based on the matter initially investigated by the Secretary pursuant to section 105(c)(2).
Slip op. at 11-12 (citing Hatfield v. Co/quest Energy, Inc., 13 FMSHR.C 544 (Apr. 1991)). This
is true, but misses the point of Hatfield. The Commission held in that case that "the statutory
scheme provides to miners a full administrative investigation and an evaluation of an allegation
of discrimination, as well as the right to a private action in the event that the administrative
evaluation results in a determination that no discrimination occurred." Hatfield, 13 FMSHRC
at 545 (citations omitted, emphases added). The miner in Hatfield had made no specific
allegations of protected activity in his complaint to MSHA. Thus, the Commission held that the
Secretary was effectively prevented from carrying out her investigative duties under the Act,
while observing the clear distinction between those duties and the private action available to the
miner after a full investigation and a finding that no discrimination had occurred.
33 FMSHR.C Page 55

Our colleagues nonetheless hold that "[ t]he Secretary's decision not to proceed with the
discrimination complaint does not transform the complaint into a frivolous action," and then go
on to state that "because the Secretary's decision not to go forward on the miner's behalf does not
vitiate the previous finding that" the miner's complaint was not frivolously brought, temporary
reinstatement must remain in effect. Slip op. at 15 (emphasis added). First of all, the Secretary .
most assuredly does not merely "decide not to proceed" or "decide not to go forward on the
miner's behalf" Rather, as we have noted, she determines that a violation of the law has not
occurred and discontinues the participation ofthe United States in the case.3
Secondly, our colleagues' reasoning greatly simplifies the problem before us in this case
by assuming away the issue. While it is true that the statute does not expressly require the
Secretary to find that the miner's action, upon investigation, appears to be "frivolous," the Act
does require her to determine whether or not there is a sufficient factual and legal basis to permit
continued prosecution of the matter complained of, and to act accordingly. 4 Permitting the
Secretary to abandon meritorious claims is inconsistent with her public· duties and with the
express statutory mandate to determine through investigation whether or not the law has been
violated.
Thus, the nature of the Secretary's investigation and the conclusion she reaches is
inescapable. As we previously noted, a finding by the Secretary that the Act was not yjolated is a
determination with legal effect and consequences. Phillips, 31 FMSHRC at 983. The Secretary
has a clear obligation to file a complaint immediately on behalf of the miner if she determines the
Act has been violated, and to notify the miner that she will not prosecute the claim, thereby
permitting a private action, if she finds to the contrary.

3

Our colleagues claim that Congress would not permit a frivolous action before the
Commission. Slip op. at 15. Congress has expressly determined that the United States should
not participate in an action where the Secretary, empowered to act on behalf of the United States
and the miner, affirmatively finds that the terms of the Act have not been violated. The same
subsection of the law empowers the Secretary, again acting on behalf of the United States, to
protect the public interest in ensuring that those who draw attention to unsafe conditions or
practices in our mines are not punished for doing so. The temporary reinstatement provided to
secure this interest is imposed before the investigation commanded by the subsection. Congress
clearly did not intend the inspection to be meaningless, superficial, or inconsequential.
4

Assuming, arguendo, that when the government agency charged with the protection of
miners and the interpretation and application of the Mine Act on their behalf expressly finds that
there is insufficient legal or factual support to allow continued prosecution, the matter is not
rendered frivolous as a matter of law, we would hold that an operator should be permitted tO seek
dissolution of the order of temporary reinstatement on the grounds that it has been found to be
unsupported in fact or law. This would at least require the Secretary to explain why she has
decided not to seek the vindication of a miner's rights in a case that may have merit or, in the
alternative, why temporary relief should continue in a case that lacks merit.
33 FMSHRC Page 56

Moreover, the center of our colleagues' case - that because there is no "order" terminating
the complaint to MSHA, reinstatement must continue -- is undercut by a fact acknowledged by the
majority: there is no order disposing of the temporary reinstatement ifthe miner elects not to
proceed with a private action within 30 days. Slip op. at 10 n.5. They attempt to finesse this by
claiming that the ''possibility" of a final order is a necessary implication requiring temporary
reinstatement to continue during the interregnum between the Secretary's determination and the
expiration of the 30-day period, on the one hand, or the miner's initiation of a private action on
the other. Id. Why a complementary implication requiring dismissal does not arise if the miner
elects to proceed with a private action is not explained, beyond the acknowledgment that if the
"miner foregoes that possibility, obviously the temporary reinstatement provision would no longer
be applicable." Id. We are baffled as to how the Secretary- whose judgement and expertise we
acknowledge routinely- is unable to make a binding determination because the statute requires a
final order, yet the decision of a miner is fatal and binding on the Commission, even though there
has been no order in that instance either. 5
Finally, our colleagues dismiss the operator's Claim that its due process rights are violated
by continuation of reinstatement even though the Secretary has found that the operator did not

5

As we explained in our opinion in Phillips, even if we were to find section 105(c)
ambiguous on this issue, we do not believe this is an issue on which deference to the Secretary is
appropriate. While on one hand the Secretary continues to argue that deference to her is required
by general principles of administrative law and statutory construction (S. Br. at 5-7), she also
admits that section 105(c) has been specifically designed to give the Commission, and not the
Secretary, the final word in discrimination cases under the Mine Act, because the Secretary could
be wrong in refusing to pursue a miner's discrimination complaint. See id. at 14-16. We fail to
see why resort to general principles is necessary when Congress has directly spoken on the
subject of th~ division of administratiye authority. On the subject of general principles, we also
note that the Secretary "could be wrong" about any number of matters entrusted to her, a
fallibility which does not appear to similarly trouble her as she insists on deference to her
expertise in this and other contexts. It is not logical for the Secretary to assert that we defer tQ
her here, even as she acknowledges that her judgment is so likely to be flawed that we should, in
effect, presume that the possibility of error or dereliction on her part justifies preserving a remedy
in the face of her express finding that the miner is not entitled to it.
Commissioner Cohen in his concurrence argues that under Secretary ofLabor on behalf
of Wamsley v. Mutual Mining, Inc., 80 F.3d 110 (4th Cir. 1996), we must defer to the Secretary's
interpretation of the statute. Slip op. at 24. We do not find Wamsley pertinent authority in this
instance, however, because here, unlike in that case, the Secretary has ceased participating in the
miner's discrimination case. The fact that the statute may require the Secretary to return to the
case to protect the miner's interests and fulfill her duties under the Mine Act if the Commission
upholds the miner's action (see slip op. at 6, 22) is oflittle consequence to the deference
question, given the Secretary's intentional absence from the primary part of the proceeding - its
merits - after her thorough investigation of those merits.
33 FMSHRC Page 57

violate the law. Slip op. at 16-17, 19. We would not find it necessary to reach this claim. We
would instead hold that the process as we have previously interpreted it does protect the operator's
rights. The Secretary's duty to investigate and to prosecute only those claims which she finds
factually and legally sufficient is an important component of the process designed to ensure that
the rights of operators are not unreasonably constrained in this context.
We thus would affirm the judge's decision here to dissolve the order of temporary
reinstatement, and respectfully dissent from the majority opinions reversing the judge's order.

33 FMSHRC Page 58

Distribution:
Stephen M. Hodges, Esq.
Penn, Stuart & Eskridge
P.O. Box 2288
Abingdon, VA 24212
Tony Oppegard, Esq.
P.O. Box 22446
Lexington, KY 41858
wes@appalachianlawcenter.org
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
601 New Jersey Ave., N.W. Suite 9500
Washington, D. C. 20001-2021
KENT 2009-1429-D
W. Christian Schumann, Esq.
Robin Rosenbluth Esq.,
Office of the Soli~itor
U.S. Department of Labor
1100 Wilson B1vd., 22°d Floor West
Arlington, VA 22209-2247
Margaret S. Lopez, Esq.
Denise Girardo
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
2400 N Street.NW, 51h Floor
Washington, DC 20037
counsel for PCS Phosphates
Elizabeth McGrail, Esq.
PECS Administration (USA), InG.
1101 Skokie Blvd., Suite 400
Northbrook, IL 60062
counsel for PCS Phosphates
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
counsel for Kevin Baird

33 FMSHRC Page 59

Carla M. Casas, Esq.
Office of the Solicitor
U.S. Department of Labor
61 Forsyth Street SW, Room 7Tl0
Atlanta, GA 30303
Kevin E. Baird, Sr.
16008 US Hgwy., 246 East
Pinetown, NC 27865
Administrative Law Judge Jacqueline Bulluck
Federal Mine Safety & Health Review Commission
601 New Jersey Ave., N.W. Suite 9500
Washington, D. C. 20001-2021
SE 2010-74-D

33 FMSHRC Page 60

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

January 11, 2011

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

Docket No. WEST 2008-1569-M
A.C. No. 24-02519-159643

ENOS MILLER

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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) C-'Mine Act"). On December 27, 2010, the Commission received from Enos
Miller a letter seeking to set aside an order of Chief Administrative Law Judge Robert J. Lesnick
entering default judgment for the Secretary of Labor in this case. On January 10, 2011, the
Commission received a response from the Secretary stating that she does not oppose Mr. Miller's
request.
The Chief Judge's jurisdiction in this matter terminated when his default order was issued
on December2, 2010. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's
procedural rules, relief from a judge's decision may be sought by filing a petition for review
within 30 days ofits issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). We construe the
letter from Mr. Miller to be a timely filed petition for discretionary review.
On December 14, 2009, Chief Judge Lesnick issued a show cause order to Mr. Miller
stating that he had failed to file an answer to a petition for penalty assessment sent to him by the
Secretary of Labor on November 3, 2008 and that Mr. Miller would be found in default if he did
not file an answer or show good cause for not doing so within 30 days of the order. On March 3,
2010, the Secretary filed a motion to dismiss the instant proceeding due to Mr. Miller's failure to
file an answer or respond to the judge's show cause order. On December 2, 2010, Chief Judge

33 FMSHRC Page 61

Lesnick issued an order.finding that Mr. Miller had failed to respond to the show cause order and
entering a judgment by default for the Secretary.
fu support of his petition, Mr. Miller states "it is increasingly difficult to have any time
for anything but a losing battle to stay financially solvent." Mr. Miller also asserts that he has
laid off all employees that he can operate without thereby increasing the burden on him as the
owner.

Because the petition filed by Mr. Miller does not explain why he failed to file an answer
or to respond to the Chief Judge's show cause order and does not provide any reasons why the
default order should be vacated, we hereby deny the petition.

Robert F. Cohen, Jr., Commissioner

~l

......

,~

Patrick K. Nakamura, Comm1ss10ner

33 FMSHRC Page 62

Distribution:
Enos Miller
341 Mountain View Rd.
Rexford, MT 59930
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC Page 63

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

January 12, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2010-462-M
A.C. No. 36-00185-211813

v.
LEHIGH CEMENT COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 26, 2010, the Commission received from Lehigh
Cement Company ("Lehigh") a motion seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final 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"); .!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).

33 FMSHRC Page 64

Counsel for the operator states that Lehigh intended to coritest the penalties contained on
Proposed Assessment No. 000211813, but that counsel was unaware that the proposed
assessment was among other materials forwarded to counsel by Lehigh. Because of this error,
counsel inadvertently failed fo timely contest the penalties on the operator's behalf, and the
proposed assessment became a final·Conimission order. When the operator's counsel realized
the mistake by reviewing the materials sent by Lehigh, the operator promptly sought reopening
within 30 days of the assessment becoming a final order and before a notice of delinquency had
been issued.
The Secretary opposed reopening of the proposed penalty arguing that inadequate or
unreliable procedures and being extremely busy do not constitute sufficient grounds for
reopening. The operator filed a response to the Secretary's opposition explaining at length the
specific nature of the operator's claims and the prompt manner in which reopening was sought.

33 FMSHRC Page 65

Having reviewed Lehigh's request and the Secretary's response, fa the interests ofjustice,
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. We base our decision to reopen on the promptness of the motion to reopen, the detailed
explanation provided, as well as counsel's representation that he has initiated a review of case
handling procedures so as to ensure that contest matters will be more carefully monitored in the
future. 1 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.

~Ltvz4.

M~Lufu an, Chaif&6

Robert F. Cohe~ Jr., Commissioner

Patrick K. Nakamura, Commissioner

1

We note that Lehigh also brought a motion to reopen based on similar circumstances in
Lehigh Cement Co., 32 FMSHRC 473, 474 (June 2010). We strongly caution counsel and the
operator to take greater care to ensure that all penalty contests are timely and properly filed in the
future.
33 FMSHRC Page 66

Distribution:
Michael T. Heenan, 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
Melanie Garris
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

33 FMSHRC Page 67

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

January 19, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2011-276
A.C. No. 46-08632-219236

v.
WIUTE FLAME ENERGY, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 29, 2010, the Commission received a motion by
counsel for White Flame Energy, Inc., seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section lOS(a) of the Mine Act, 30 U.S.C. § 815(a).
On December 7, 2010, the Commission received a response from the Secretary of Labor stating
that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(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

33 FMSHRC Page 68

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 the facts and circumstances of this case, the operator's request, and the
Secretary's response, 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.

' '~
....

Micha~Uffy>n)'lllIIlissi~
{'\

\

.

.

Robert F. Cohen, Jr., Commissioner

,- ~.tb
33 FMSHRC Page 69

Commissioner

Distribution:
MaxL. Corley, III, 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.
Melanie Garris
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

33 FMSHRC Page 70

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

January 19, 2011
SECRETARY OF LABOR,
MINE SAFETY AND.HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK 2011-13-M
A.C. No. 30-00287-224817

v.
NORTHEAST SOLITE CORPORATION

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 8Ql et seq. (2006) ("Mine Act"). On October 21, 2010, the Commission received a motion by
counsel for Northeast Solite Corporation seeking to reopen a pe~alty 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).
On November 23, 2010, the Commission received a response from the Secretary of Labor stating
that she does not oppose the request.to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator. fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final 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

33 FMSHRC Page 71

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 facts and circumstances of this case, the operator's request, and the
Secretary's response, 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

r~~
· Patrick K. Nakamura, Commissioner

33 FMSHRCPage 72

Distribution:
Donald D. Anderson, Esq.
50 N. Laura Street
Suite 3300
Jacksonville, FL 32202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
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

33 FMSHRC Page 73

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

January 25, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2010-977-M
A.C. No. 04-05632-188492

v.

NORTH COUNTY SAND &
GRAVEL, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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, 2010, the Commission received a motion by
counsel to reopen a penalty assessment issued to North County Sand & Gravel, Inc.(''North
County'') that became a final order of the Commission pursuant to section 105(a) of the Mine
Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become fmal Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) (".!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.l(b) ("the Commission and its Judges shall be guided so far as practicable

33 FMSHRCPage 74

by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
On June 18, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000188492 to North County. North County asserts
that it timely sent in a contest form but because of"some undetermined mistake, not attributable
to the operator, ... MSHA did not receive the request for a hearing." North County submitted
the affidavit of its chief :financial officer and office manager stating that she placed the completed
contest form in "the self-addressed envelope that was included with the assessment" and mailed
the form, without obtaining proof of mailing, before the expiration of the 30-day deadline.
The Secretary opposes North County's request to reopen because its explanation is
inconsistent with MSHA's procedures in that MSHA does not provide self-addressed envelopes
with proposed assessments. In addition, MSHA has no record of receiving a contest form. She
maintains that the operator's contention of"some indeterminate mistake" is conclusory, lacks
sufficient detail, and does not provide adequate grounds for reopening. The Secretary also notes
that a delinquency notice was sent to the operator on September 10, 2009, more than six months
before it filed its reopening request, and the case was referred to the Treasury Department for
collection on January 7, 2010.
Having reviewed North County's request to reopen and the Secretary's response thereto,
we agree that the operator has failed to provide a sufficient basis for the Commission to reopen
the penalty assessment. In addition, North County has failed to explain why it delayed
approximately six months in responding to the delinquency notice sent by MSHA. 1
Accordingly, we hereby deny without prejudice North County's request to reopen. FKZ Coal
Inc., 29 FMSHRC 177, 178 (Apr. 2007); Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009). The
words "without prejudice" mean that North County may submit another request to reopen the
Assessment No. 000188492. 2 Any amended or renewed request by the operator to reopen this

1

In considering whether an operator has unreasonably delayed in filing a motion to
reopen a final Commission order, we find relevant the amount of time that has passed between an
operator's receipt of a delinquency notice and the operator's filing of its motion to reopen. See,
e.g., Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009); Highland Mining Co., 31 FMSHRC
1313,1316 (Nov. 2009) (holding that motions to reopen filed more than 30 days after receipt of
notice of delinquency must explain the reasons why the operator waited to file a reopening
request, and lack of explanation is grounds for the Commission to deny the motion).
2

If North County submits another request to reopen, it must establish good cause for not
contesting the proposed penalties within 30 days from the date it received the assessment 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
33 FMSHRC Page 75

assessment must be filed within 30 days of this order. Any such request filed after that time will
be denied .with prejudice.

-·-- ..

Robert F. Cohen, Jr., Commissioner

excusable neglect on the part of the party seeking relief, or the discovery of new evidence, or
fraud, misrepresentation, or other misconduct by the adverse party. North County should include
a full description of the facts supporting its claim of"good cause," including how the mistake or
other problem prevented it from responding within the time limits provided in the Mine Act, as
part of jts request to reopen. North County should also submit copies of s~pporting documents
with its request to reopen and specify which proposed penalties it is contesting. North County
should further include an explanation for why the operator waited so long to file for reopening
·
after receipt of the notice of delinquency.

33 FMSHRC P~ge 76

Distribution:
C. Gregory Ruffennach, Esq.
North County Sand & Gravel, Inc.
1629 K Street, N. W., Suite 300
Washington, DC 20036
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25 1h 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

33 FMSHRC Page 77

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

January 28, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2011-30-M
A.C. No. 08-00046-227907

v.
CEMEX CONSTRUCTION MATERIALS,
FLORIDA, LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 13, 2010, the Commission received from
Cemex Construction Materials, Florida, LLC ("Cemex"), a motion by counsel to reopen a
penalty assessment that had become a final order of the Commission pursuant to section lOS(a}
of the Mine Act, 30 U.S.C. § 815(a). On November 2, 2010, the Commission received a
response from the Secretary of Labor stating that she does not oppose the request to -reopen the
assessment. The Secretary's response included a copy of Cemex' s contest fonn, filed one day
late, that the operator had marked to indicate its intention to contest 27 penalties.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) (".!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.l(b) (..the Commission and its Judges shall be guided so far as practicable
33 FMSHRC Page 78

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 the facts and circumstances of this case, the operator's request, and the
Secretary's response, 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 the 27 penalties within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Michael

Robert F. Cohen, Jr., Commissioner

~l

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 79

Distribution:
Denise E. Giraudo, Esq.
()gletree,Deakins, Nash
Smoak & Stewart, P.C.
2400 N Street NW, 5th Floor
Washington, DC 20037
W. Christian Schumann, Esq.
()ffice of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
()ffice of Civil Penalty Compliance
MSHA
U.S. Dept. ()f 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

33 FMSHRC Page 80

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

January 28, 2011

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2011-60-M
A.C. No. 01-00027-218800

v.
NATIONAL CEMENT COMPANY OF
ALABAMA, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 14, 2010, the Commission received from
National Cement Company of Alabama, Inc., a letter requesting that the Commission reopen a
penalty assessment that had become a final order of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a). On November 12, 2010, the Commission received a
response from the Secretary of Labor stating that she does not oppose the request to reopen the
assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(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
33 FMSHRC Page 81

by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy arid· that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened arid appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, 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. 1

r~L
Patrick K. Nakamura, Commissioner

We note that the Secretary's response indicates that the operator's payment ~fpenalties
that it was not contesting has been, in part, applied to penalties that the operator is now being
permitted to contest. We trust that the Secretary will ultimately allocate the payments properly.
1

33 FMSHRC Page 82

Distribution:
Jeffrey R. Golden, Safety Mngr.
National Cement Company
80 National Cement Dr.
Ragland, AL 35131
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
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

33 FMSHRC Page 83

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

February 1, 2011
Docket No. CENT 2010-1273-M
A.C. No. 13-02297-225215

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

Docket No. CENT 2010-1302-M
A.C. No. 13-02297-215099

v.

Docket No. CENT 2010-1642-M
A.C. No. 13-02297-221933

PATTISON SAND COMPANY, LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 10, September 17, and September 20, 2010,the
Commission received motions by counsel for Pattison Sand Company, LLC ("Pattison") seeking
to reopen three 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).
On March 29, 2010, June 9, 2010, and July 7, 2010, the Department of Labor's Mine
Safety and Health Administration ("MSHA") issued Proposed Assessment Nos. 000215099,
000221933, and 000225215, respectively, to Pattison, proposing civil penalties for various
citations. Pattison states that its mine has been inspected numerous times in 2010, which has
resulted in the issuance of a large number of citations and orders. Regarding Proposed

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers CENT 2010-1273-M, CENT 2010-1302-M, and
CENT 2010-1642-M, all captioned Pattison Sand Company, LLC, and involving similar
procedural issues. 29 C.F.R. § 2700.12.
33 FMSHRC Page 84

Assessment Nos .. 000215099 and 000225215, the operator submits that the proposed penalty
assessments were "missed" or "slipped through the cracks." Pattison explains further that it has
no record of receiving either proposed penalty assessment.
The Secretary opposes Pattison's request to reopen Proposed Assessment Nos.
000215099 and 000225215. She notes that MSHA's records indicate that Pattison received
Proposed Assessment Nos. 000215099 and 000225215 on April I, 2010, and July 14, 2010,
respectively. The Secretary·asserts that the operator's receipt of a large number of citations does
not constitute an excuse for the operator's failure to timely contest the proposed assessments.
With respect to Proposed Assessment No. 000215099, the Secretary further notes that although a
delinquency notice was sent to the operator on June 30, 2010, the operator did not file the
reopening request until almost three months later.
Regarding Proposed Assessment No. 000221933, the operator states that it initially
misplaced the assessment form. However, Pattison found the proposed assessment form on
July 7, 2010, and then immediately forwarded the form by email to its counsel with instructions
to contest the proposed penalties. The operator states that its counsel was on vacation from
July 9 through July 18 and did not notice the operator's email until her return. The Secretary
does not oppose reopening Assessment No. 000221933.
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 Fedenil 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 Pattison's requests to reopen and the Secretary's responses, we
conclude that Pattison has failed to provide an adequate basis for the Commission to reopen the
three penalty assessments. Pattison' s requests do not adequately explain the company's failure to
contest the proposed assessments on a timely basis. At a minimum, the operator must provide a
more detailed explanation of how it normally contests proposed penalties and specific
information regarding why that process did not work in these instances. For instance, it is not
clear why the operator's email regarding Assessment No. 000221933 was not received until after
July 18 although the email was sent on July 7 and its counsel did not leave for vacation until July
9. Furthermore, in considering whether an operator has unreasonably delayed in filing a motion
to reopen a final Commission order, we find relevant the amount of time that has passed between
an operator's receipt of a delinquency notice and the operator's filing of its motion to reopen.

33 FMSHRC Page 85

See, e.g., Left Fork Mining Co., 31 FMSHRC 8, 11{Jan;2009). Although the SeGretary's
response raised the issue that Pattison failed to explain why, after it was informed of the.
delinquency regarding Proposed Assessment No. 000215099, it took as long as it did to request
reopening, the operator did not file a reply providing an explanation. 2

Having reviewed Pattison's requests and the Secr:etary's responses, we conclude that
Pattison has not provided the Commission with an adequate basis to reopen. See, e.g., C.S.A.
Mining, Inc., 31FMSHRC773, 775 (July 2009). Accordingly, we deny without prejudice
Pattison's requests to reopen. Any amended or renewed request by Pattison to reopen the
assessments must be filed within 30 days of this order. Any such request filed after that time will
be denied with prejudice.

Robert F. Cohen, Jr., Commissioner

~-t"'---Ll-t-------.-'--Patrick K. Nakamura, Commissioner

2

We encourage parties seeking reopening to provide further information in response to
pertinent questions raised in the Secretary's response. See, e.g., Climax Molybdenum Co., 30
FMSHRC 43 9, 440 n. l (June 2008). Accordingly, where the Secretary raises the issue of the
delay between receipt of a delinquency letter and the filing of the request to reopen, an operator
who does not explain why, after it was informed of a delinquency, it took .as long as it did to .
request reopening, does so at its peril.
33 FMSHRC Page 86

Distribution:
Gary Visscher, 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
Melanie Garris
Office of Civil Penalty Compliance
U.S. Dept. 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

33 FMSHRC Page 87

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

February 1, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2010-1161-M
A.C. No. 08-01060-222560 .

v.
SIKES PIPE COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 8, 2010, the Commission received from
Sikes Pipe Company ("Sikes'') a letter requesting that the Commission reopen a penalty ·
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
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(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, I 5 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).

33 FMSHRC Page 88

The Department of Labor's Mine Safety and Health Administration ("MSHA") issued
Proposed Assessment No. 000222560 to Sikes on June 15, 2010. Sikes states that it never
received the proposed assessment form. In August 2010, the operator's records keeper
discovered that the proposed penalties set forth on the form were considered final Commission
orders when she reviewed MSHA's data retrieval system regarding unrelated citations. Upon
investigation, the operator discovered that the form had been sent by FedEx but returned as
unclaimed. Sikes' records keeper states that until recently, she had been traveling out of town for
a week-and-a-half every month, and that it was possible that delivery had been attempted during
her absence.
The Secretary does not oppose Sikes' request to reopen. However, she states that ifthe
person responsible for processing mail is going to be away for a length of time each month, the
operator should make arrangements to ensure that proposed assessments are received and
processed in a timely manner during that person's absence.
Having reviewed the facts and circumstances of this case, Sikes' request, and the
Secretary's response, 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.

33 FMSHRC Page 89

Within 30 days of the date ofthis order, Sikes must notify the Secretary as to which
citations it wishes to contest on Proposed Assessment No. 000222560. Consistent with Rule 28,
the Secretary shall file a petition for assessment of penalty within 45 days of notification by the
operator. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

r-

~JL

Patrick K. Nakam~, Commissioner

33 FMSHRC Page 90

Distribution:
Ashley Sikes
Records Keeper/Accountant
Sikes Pipe Co.
206 Hollis Ave.
Panama City, FL 32401
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
U.S. Dept. of Labor, MSHA
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Jridge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC Page 91

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

February 7, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2010-748
A.C. No. 15-19301-200653.

v.
NALLY & HAMILTON ENTERPRISES, INC. :

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On March 4, 2010, the Commission received from
Nally & Hamilton Enterprises, Inc. ("N&H") 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).
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(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
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).
33 FMSHRC Page 92

On October 15, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000200653 to N&H for eight citations it had issued
to N&H in September 2009. N&H states that it was not aware of the proposed assessment until
it was notified of the delinquency by MSHA. It contends that the clerical staff did not forward
the documents to the correct employees and that the employee who normally receives the
assessments was ill at the time the assessment was received in its office in Calvin, Kentucky.
The operator asserts that it is in the process of ensuring that assessments are sent to its office in
Bardstown, Kentucky, for processing.
The Secretary opposes and states that the operator's conclusory statements are insufficient
to justify reopening. She states that the record indicates that the assessment was delivered via
FedEx to, and signed for by, the operator on October 22, 2009, and that a delinquency notice was
sent to the operator on January 7, 2010. She argues that the operator's internal office procedures
were inadequate in that it did not assign another employee to perform the duties of the absent
employee responsible for processing assessments during the time of his absence, and thus do not
constitute grounds for reopening.
Having reviewed N&H's request and the Secretary's response, we conclude that N&H
has failed to provide a sufficiently detailed explanation for its failure to timely contest the
proposed penalty assessment. The operator's explanation that it failed to file a timely contest
because its clerical staff failed to forward the documents to the correct employees and because
the responsible employee who normally handles assessments was absent (Mot. at 1), without any
further elaboration, does not provide us with an adequate basis to justify reopening the
assessment. Additionally, the operator does not explain why it waited nearly two months after
receiving the delinquency notice to request reopening. Accordingly, we deny without prejudice
N&H's request. See, e.g., Eastern Associated Coal LLC, 30 FMSHRC 392, 394 (May 2008);
James Hamilton Constr., 29 FMSHRC 569, 570 (July 2007).

33 FMSHRC Page 93

Any amended or renewed request by N&H to reopen Assessment No. 000200653 must be
filed within 30 days of the date of this order. Any such request filed after that time will be
denied with prejudice.

Robert F. Cohen, Jr., Commissioner

~

Patrick K. Nakamura, Commissioner

~- '·

33 FMSHRC Page 94

Distribution:
C. Bishop Johnson, Esq.
Cawood & Johnson, PLLC
108 Kentucky Ave.
P.O. Drawer 128
Pineville, KY 40977
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
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

33 FMSHRC Page 95

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

February 7, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEYA 2009-1796
A.C. No. 46-05992-183453 R58

v.
COALFIELD SERVICES, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 13, 2009, the Commission received from
Coalfield Services, fuc. ("Coalfield"), a motion requesting that the Commission reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed .
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final 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).
33 FMSHRC Page 96

On April 23, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000183453 to Coalfield. Coalfield asserts that it
did not send in the contest form because of"a clerical error." It further contends that when it
learned of its error on or about June 30, 2009, it unsuccessfully attempted to file the contest with
MSHA at that point. Although the Secretary does not oppose Coalfield's request to reopen, she
urges the operator to take all steps necessary to ensure that future penalty assessments it wishes
to contest are contested .in a timely manner.

33 FMSHRC Page 97

Having reviewed Coalfield's request to reopen and the Secretary's response thereto, we
determine that the operator has failed to provide a sufficient basis for the Commission to reopen
the penalty assessment. The operator's contention of "a clerical error" is conclusory, lacks
sufficient detail, and does not provide adequate grounds for reopening. Accordingly, we hereby
deny without prejudice Coalfield's request to reopen. Eastern Assoc. Coal, LLC, 30 FMSHRC
392, 394 (May 2008); FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007);Petra Materials, 31
FMSHRC 47, 49 (Jan. 2009). The words "without prejudice" mean that Coalfield may submit
another request to reopen the Assessment No. 000183453. 1 Any amended or renewed request by
the operator to reopen this assessment must be filed within 30 days of this order. Any such
request filed after that time will be denied with prejudice.

Robert F. Cohen, Jr., Commissioner

~L

~b·~··=-~·=-~~~~~~~~~~

Patrick K. Nakamura, Commissioner

1

If Coalfield submits another request to reopen, it must establish good cause for not
contesting the proposed penalties within 30 days from the date it received the assessment 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 neglect on the part of the party seeking relief, or the discovery of new evidence, or
fraud, misrepresentation, or other misconduct by the adverse party. Coalfield should include a
full description of the facts supporting its claim of"good cause," including how the mistake or
other problem prevented it from responding within the time limits provided in the Mine Act, as
part of its request to reopen. Coalfield should also submit copies of supporting documents with
its request to reopen.
33 FMSHRC Page 98

Distribution:
Michael Houseman
Coalfield Services, fuc.
2942 Peppers Ferry Rd.
Wytheville, VA 24382
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
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

33 FMSHRC Page 99

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

February 7, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2009-812
A.C. No. 01-00851-183518

v.
OAK GROVE RESOURCES LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 January 26, 2011, the Commission received from Oak
Grove Resources LLC ("Oak Grove") a motion by counsel to permit late filing of a renewed
motion 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).
On October 28, 2010, the Commission denied without prejudice Oak Grove's prior
motion to reopen the subject penalty assessment. Oak Grove Res., LLC, 32 FMSHRC 1253,
1254 (Oct. 2010): The Commission instructed that, if Oak Grove sought reopening again, "it
must do so within 30 days." Id. Oak Grove waited nearly 90 days to bring its renewed motion to
reopen, contrary to the Commission's explicit instruction.

33 FMSHRC Page 100

Because Oak Grove failed to timely file its second motion to reopen for failing to file a
timely contest of the penalty assessment, we deny the motion to permit late filing and deny the
motion to reopen the penalty assessment.

Robert F. Cohen, Jr., Commissioner

--~LL

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 101

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
Arlington, VA 22209-2296
Melanie Garris
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

33 FMSHRC Page 102

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

February 7, 2011
SECRETARY OF LABOR,
MINE SAFETY AND.HEALTH
ADMINISTRATION (MSHA)

Docket No. SE 2011-16
A.C. No. 02-00851-221338

v.
OAK GROVE RESOURCES LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 5, 2010, the Commission received from Oak
Grove Resources LLC ("Oak Grove") 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).
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(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 mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(h) ("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).
33 FMSHRC Page I 03

On June 3, 2010, the Department of Labor's Mine Safety and Health Administration
(''MSHA") issued Penalty Assessment No. 000221338 to Oak Grove, proposing penalties of
nearly $125,000 for 80 citations and orders issued to the operator the previous April. In its
motion to reopen the assessment so that it can contest 27 of the penalties proposed for a total of
nearly $111,000, 1 Oak Grove states that it failed to timely file a contest due to a
miscommunication between its counsel and its safety director. Its safety director further states
that the contest form was submitted in July to MSHA with Oak Grove's payment of the
uncontested penalties, with both sent to MSHA' s address for penalty payments, not to the
separate address for contests.
The Secretary opposes the reopening of the proposed assessment on the ground that
inadequate or unreliable internal procedures do not constitute an adequate excuse for reopening.
She argues that the large amounts of the penalties involved indicate that the operator's internal
procedures were particularly inadequate. She also states that payment for the uncontested
penalties was by check dated October 7, 2010, that there was no contest form attached to the
payment, and that the payment did not designate which penalties were being paid.
Since the time Oak Grove filed its motion and the Secretary her response, the
Commission issued an order denying two other Oak Grove motions to reopen, including one
which contained almost exactly the same excuse regarding a miscommunication between the
safety director and counsel. We held that such an explanation provided insufficient grounds to
reopen, and stated that if Oak Grove wished__to r~new its request to reopen with a detailed
explanation of the circumstances, it should file its renewed or amended request within 30 days.
Oak Grove Res., LLC, 32 FMSHRC 1253, 1254-55 (Oct. 2010).
The operator did not do so, but instead waited nearly three months, and then filed a
renewed motion to reopen accompanied by a motion to permit late filing. In a separate order, the
Commission is denying the motion to permit late filing and thus will not consider the renewed
motion in that case.
We are also hereby denying, without prejudice, the motion to reopen the assessment in
this case. We have held that an inadequate or unreliable internal processing system does not
constitute inadvertence, mistake or excusable neglect so as to justify the reopening of an
assessment which has become final under section 105(c) of the Mine Act. Pinnacle Mining Co.,
30 FMSHRC 1061, 1062(Dec. 2008); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec.
2008); Highland Mining Co., 31FMSHRC1313, 1315 (Nov. 2009): Double Bonus Coal Co.,
32 FMSHRC 1155, 1156 (Sept. 2010); Elk Run Coal Co., 32 FMSHRC 1587, 1588 (Dec. 2010).
Should Oak Grove renew its request to reopen this assessment, it must do so within 30 days, and
fully explain the circum.stances in its failure to timely contest the proposed ~sessment. It must

1

Oak Grove's motion refers to Order No. 6690851 and Citation No. 8518607 twice each
when listing the penalties it seeks to reopen in its motion.
33 FMSHRC Page 104

also address what it has done to ensure that it responds to proposed assessments in a timely
manner, in order to avoid a repeat of the mistakes it outlined in its motion. 2

Robert F. Cohen, Jr., Commissioner

r~l
Patrick K. Nakamura, Commissioner

2

Prompted by the Secretary's contradiction of Oak Grove's claim regarding the timing of
its payment of uncontested penalties in this instance, we also note the following: (1) the
proposed assessment at issue shows that, at least as of June 2010, Oak Grove was significantly
delinquent with regard to the payment of penalties to MSHA; (2) the publicly available MSHA
Data Retrieval System indicates that in the case of more than one recent assessment, Oak Grove
has apparently timely contested certain penalties, but is delinquent in paying other penalties that
were part of the same assessment. This infonnation further detracts from Oak Grove's credibility
in seeking relief from proposed penalty assessments that have become final orders.
33 FMSHRC Page 105

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
Arlington, VA 22209-2296
Melanie Garris
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 Coinmission
60l New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC Page 106

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

February 7, 2011
SECRETARY OF LABOR,
MINE SAFETY AND.HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2010-986-M.
A.C. No. 35-03260-205195

v.
HARVEY W. BUCHE ROAD
BUILDING, JNC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 9, 2010, the Commission received a letter on behalf
of Harvey W. Buche Road Building, Inc. ("Buche") seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(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
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).
33 FMSHRC Page 107

On December 8,·2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000205195 to Buche. In its letter, Buche asserts
that because of a miscommunication between the operator and the consultant as to who was to
contest the penalty assessment, it was never contested.
The Secretary opposed reopening, asserting that an unreliable internal processing system
is not grounds for reopening. She further asserted that the operator failed to adequately detail
and justify the circumstances that warrant reopening.
Attorneys for Buche then submitted supplemental authority and affidavits in support of
the request to reopen. In those affidavits, the President of Buche explains that he spoke with
Mr. Redding, Buche's consultant, shortly after the assessment was received and understood that
Mr. Redding would file the contest form with MSHA. Mr. Redding, however, stated that, in that
conversation, he understood that the President ofBuche was to check off the violations to contest
them and to send the form to MSHA. The President of Buche avers that he first learned that the
contest had not been submitted when he received the delinquency notice in early March 2010.
Buche then promptly took steps seeking to reopen the penalty assessment.
·

33 FMSHRC Page 108

Having reviewed Buche's request, the Secretary's response, and Buche's supplemental
filing, 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.
1

Mary Lu Jordan, Chairman

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

1

The Commission encourages parties seeking reopening to provide further infonnation
in response to pertinent questions raised in the Secretary's response. Highland Mining Co., 31
FMSHRC 1313, 1316 n.3 (Nov. 2009)
33 FMSHRC Page 109

Distribution:
Kim Redding
Harvey W. Buche Rd. Bldg., Inc.
2949 S. Giovanni Ave.
Meridian, ID 83642
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25t1t 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

33 FMSHRC Page 110

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

February 7, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)
Docket No. WEST 2010-1698-M
A.C. No. 50-01616-219759

v.
FAIRBANKS GOLD MJNING, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 17, 2010, the Commission received from
Fairbanks Gold Mining, Inc., a motion requesting that the Commission reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a). On September 9, 2010, the Commission received a response from.
the Secretary of Labor stating that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final 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

33 FMSHRC Page 111

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 facts and circumstances of this case, the operator's request, and the
Secretary's response, 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.

.•

!1l!::n,P-

Robert F. Cohen, Jr., Commissioner

r-~
Patrick K. Nakamura, Commissioner

33 FMSHRC Page 112

Distribution:
Christopher J. Sutton, Esq.
Perkins Coie, LLP
1889 Wynkoop St., Suite 700
Denver, CO 80202-1043
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
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 & Heaith Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC Page 113

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

February 7, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2011-112-M
A.C. No. 26-02142-227907

V.

NEVADA READY-MIX CORPORATION

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

§ 801 et seq. (2006) ("Mine Act"). On October 20, 2010, the Commission received a motion by
counsel for Nevada Ready-Mix Corporation seeking to reopen ·a penalty assessment that had
become a final order of the Commission pursuant to section I05(a) of the Mine Act, 30 U.S.C.
§ 815( a). On December 13, 2010, the Commission received a response from the Secretary of .
Labor, dated November 15, 2010, stating that she does not oppose the request to reopen the
assessment.'
Under section lOS(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815{a).
We have held, however, that in appropriate circumstances, we possess jurisdiction io
reopen uncontested assessments that have become finaJ Commission orders under section 105{a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 {May 1993) ("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
33 FMSHRC Page 114

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 facts and circumstances of this case, the operator's request, and the
Secretary's response, 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

~l

Pa~ek.K. Nakamura, Coinmissioner

33 FMSHRC Page 115

Distribution:
Denise E. Gfraudo, Esq.
Ogletree, Deakins, Nash,
Smoak& Stewart, P.C.
2400 N Street NW, 51h 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
Melanie Garris
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
Washjngton, D.C. 20001-2021

33 FMSHRC Page 116

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

February 7, 2011
SECRETARY OF LABOR,
MINE SAFETY AND-HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2010-206-M
A.C. No. 20-00552-192595

v.
DETROIT SALT COMPANY, LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 December 9, 2009, the Commission received from
Detroit Salt Company, LLC ("Detroit Salt") a letter seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment: If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
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(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
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).
33 FMSHRC Page 117

On July 29~ 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Penalty Assessment No. 000192595 to Detroit Salt, proposing civil
penalties for several citations. In its letter seeking reopening, the operator asserts that it intended
to contest the penalty for one of the citations included in that assessment. The letter does not
explain why the operator failed to timely contest the penalty but instead indicates that possibly
the "Proposed Assessment Case document was missing from the payment packet documents"
sent to MSHA.
The Secretary opposes reopening on the ground that in an earlier case Detroit Salt had
similarly claimed that it thought it had sent the notice of contest along with the payment to
MSHA at its St. Louis, Missouri office. Detroit Salt Co., 31FMSHRC759 (July 2009). In that
case, the Secretary by letter dated April 20, 2009, did not oppose reopening but specifically
reminded the operator of the proper way to contest penalties and warned the operator that she
might oppose future reopening requests.

33 FMSHRC Page 118

Having reviewed Detroit Salt's request to reopen and the Secretary's response, we deny
Detroit Salt's request to reopen this matter. The Secretary's response in the prior case involving
Detroit Salt made clear that the form to contest a proposed assessment may not be sent along
with payment of uncontested penalties to MSHA's payment processing center in St. Louis.

Robert F. Cohen, Jr., Commissioner

33 FMSHRC Page 119

Distribution:
Pete Graham
Detroit Salt Co.
12841 Sanders St.
Detroit, MI 48217
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. ofLabor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
(jQl New JerseyAvenue, N. W., Suite 9500
Washington, D.C. 20001-2021 ·

33 FMSHRC Page 120

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

February 7, 2011
SECRETARY OF LABOR,
MINE SAFETY AND"HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2010-747
A.C. No. 15-19351-199923

v.
IRON EAGLE ENTERPRISES LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal. Mjne Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On March 3, 2010, the Commission received from
Iron Eagle Enterprises LLC a letter seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C § 815(a).
On March 18, 2010, the Commission received a response from the Secretary of Labor stating that
she does not oppose the request to reopen the assessment.
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 propm;ed penalty assessme_nt
·
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782; 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for ;;;xample, 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

33 FMSHRC Page 121

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 facts and circumstances of this case, the operator's request, and the
Secretary's response, 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

~
·

PatriekK. NakamUra, Go~ssionei

33 FMSHRC Page 122

Distribution:
Edward Hwang
Managing Member
Iron Eagle Enterprises, LLC
1532 KY, Rte. 1428
Hager Hill, KY 41222
Robert Wright, Mngr.
Iron Eagle Enterprises, LLC
332 North Arnold Ave.
Prestonsburg, KY 41653
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance

MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington. VA22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Coinmission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC Page 123

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

February 9, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2010-164 7
A.C. No. 24-01950-206531

v.
SIGNAL PEAK ENERGY LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 11, 2010, the Commission received from
Signal Peak Energy, LLC ("Signal") a motion requesting that the Commission reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a). On September 14, 2010, the Commission received a response · ·
from the Secretary of Labor stating that she does not oppose the reqµest to reopen the
assessment.' On December 27, 2010, the Commission received from Signal an unopposed
motion for expedited consideration of the motion to reopen.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final 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 shalJ be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed
33 FMSHRC Page 124

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 facts and circumstances of this case, the operator's requests, and the
Secretary's response, 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

~l

.. ·

...

Patriek K. Nakamura, Go~ss1oner

33 FMSHRC Page 125

Distribution:
Elizabeth H. Titus, Esq.
Davis Graham & Stubbs, LLP
1550 17m Street, Suite 500
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
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
ChiefAc:lministr.ativ:e Law Judge Robert J. Lesnick
· Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRCPage 126

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

February 15, 2011

KEVIN BAIRD
Docket No. SE 2010-74-DM

v.
PCS PHOSPHATE COMPANY, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY: Jordan, Chairman, and Cohen and Nakamura, Commissioners
This temporary reinstatement proceeding arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (2006) ("Mine Act" or "Act"). On January 6, 2011, the
Commission issued a decision ("Decision") reversing an administrative law judge's order which
dissolved her previous orders that miner Kevin Baird be temporarily reinstated with PCS
Phosphate Company, fuc. ("PCS"). On January 20, 2011, PCS filed a motion to stay the
Commission's decision pending federal court review. On February 1, 2011, the Secretary of
Labor, who had previously been granted amicus curiae status in this proceeding, filed a response
in opposition to the motion. 1 On February 2, 2011, Baird also filed a response in opposition to
PCS's motion. On February 3, 2011, the United States Court of Appeals for the Fourth Circuit
docketed No. 11-1102, PCS Phosphate Co. v. FMSHRC and Baird. 2 For the reasons that follow,
we deny PCS' s motion for stay pending appeal.

1

The Secretary also filed an unopposed motion for leave to file her response. The
motion for leave is granted.
2

Section 106(a)(l) of the Mine Act, 30 U.S.C. § 816(a)(l), states that, upon appeal of a
final decision of the Commission, the court of appeals shall have exclusive jurisdiction in the
proceeding at such time as the record before the Commission is filed with the court. Because the
record has not yet been filed, the Commission has jurisdiction to considerPCS's motion. Secy
on behalf ofSmith v. The Helen Mining Co., 14 FMSHRC 1993, 1994 (Dec. 1992).
33 FMSHRC Page 127

I.
Factual and Procedural Backi=round

The background of Baird's discrimination claims, brought under section I05(c) of the
Mine Act, 30 U.S.C. § 815(c), are set forth in the Comniission's decision reversing the judge.
See Decision at 2. Pursuant to section 105(c)(2), Administrative Law Judge Jacqueline R.
Bulluck had ordered Baird temporarily reinstated to his position at PCS after he had been
discharged by the operator. Unpublished Orders, dated Dec. 18, 2009, and Feb. 2, 2010 (AU)
(hereinafter, respectively, ''TR Order No. 1" and "TR Order No. 2"). Following the Secretary's
subsequent withdrawal of the discrimination complaint she had earlier filed on Baird's behalf,
Baird filed his own discrimination complaint pursuant to section 105(c)(3). The judge then
dissolved the order of reinstatement and dismissed both the reinstatement proceeding and the
discrimination case that the Secretary had brought. 32 FMSHRC 325, 327 (Mar. 201 O)(ALJ).
Baird filed a timely petition for discretionary review, challenging the dissolution of the
reinstatement order in light of the pendency of his section 105(c)(3) case. The Commission
granted the petition, and a Commission majority reversed the judge's decision to dissolve
reinstatement, holding that a miner's temporary reinstatement continues until the Commission
issues a final order on the merits of the miner's allegations of discrimination, whether that order
. be issQ.ed un4ei: s~ction 105(c)(2) or section 105(c)(3) of the Mine. Act. See Decision at 4~5
(opi:Qio11 of Chairman Jordan and Commissioner Nakamura), 6 (opinion of Commissioner
Cohen). 3 That sam.e majority also ordered Baird economically reinstated to his former position,
retroactive to November 16, 2009, at his former rate of pay, including any pay increases,
bonuses, and other benefits. Id. This was consistent with the judge's last order reinstating the
·
miner. See TR Order No. 2, at 4.

II.
Disposition

The PCS motion for stay has been filed pursuant to Rule 18 of the Federal Rules of
Appellate Procedure, which provides that "[a]ppIi cation for a stay of a decision or order of an
agency pending direct review in the court of appeals shall ordinarily be made in the first instance
to the agency." In Secretary on behalfofPrice and Vacha v. Jim Walter Resources, Inc., 9
FMSHRC 1312 (August 1987), the Commission held that a party seeking a stay must satisfy the·
factors set forth in Virginia Petroleum Jobbers Association v. Federal Power Commission, 259
F.2d 921 (D.C. Cir. 1958): (l) a likelihood that the party will prevail on the merits of its appeal;

3

The rationales for the separate Commissioner opinions, including that for the dissenting
opinion of Commissioners Duffy and Young, were set forth in the decision the Commission
issued on January 7, 2011, in Secretary on behalf.of Gray v. North Fork Coal C01p;,Docket No.
KENT 2009-1429-D ("Gray"). See Decision at 4, 6, 7.
33 FMSHRC Page 128

(2) irreparable ha.Tm to it if the stay is not granted; (3) no adverse effect on other interested
parties; and (4) a showing that the stay is in the public interest. Id. at 925. The court also made
clear that a stay constitutes "extraordinary relie£" Id.; see also WS. Frey Co., 16 FMSHRC
1591 (Aug. 1994). The burden is on the movant to provide "sufficient substantiation" of the
requirements for the stay. Stillwater Mining Co., 18 FMSHRC 1756, 1757 (Oct. 1996).
A.

Whether It is Likely That PCS Will Prevail on the Merits of its Appeal

PCS contends that there is a substantial likelihood it will prevail before the Fourth
Circuit, describing the Decision as having reversed 30 years of Commission precedent. Mot.
at 3-4. The Secretary responds by correctly pointing out that the issue of whether an order of
temporary reinstatement obtained by the Secretary under section 105(c)(2) of the Mine Act
remains in effect while a miner pursues his own discrimination complaint under section
105(c)(3) had never before been decided by a Commission majority. S. Resp. at 12 n,5; see
Gray, slip op. at 3.
Baird responds to PCS's motion by pointing out that the arguments PCS makes that it
will prevail on appeal - reliance on what it contends is the plain meaning of the terms of section
105(c) and its legislative history- are no different from the arguments PCS made previously....
B. Resp. at 3-4. Baird is correct that the Commission majority considered and rejected those ·
arguments in both Gray and in the Decision. Consequently, we are not persuaded that there is a
substantial likelihood that PCS will succeed ill' overturning the Decision. See Gray, slip op.
at 9--16, 20-23, 24-26. 4
B.

· Whether PCS Will Suffer Irreparable Hann Should.a Stay Not Issue

The Commission, in reversing the judge's order dissolving temporary reinstatement~. :
specified thatthe order of economic reinstatement, because it should not have been dissolved,
would go back into effect as if it had not been interrupted. Decision at 4-5 & n.2, 6; see also
Gray, slip op. at 17; 18. PCS alleges that it will be irreparably harmed by having to pay the
miner all that he is owed under the economic reinstatement agreement until such time as the
miner's section 105(c)(3) case is heard and decided, because PCS would be unlikely to recover
the payments should the company succeed on appeal. Mot. at 6-7 (citing Virginia Petroleum,
259 F.2d at 925).
PCS' s argument is one that, if accepted, would effectively nullify the temporary
reinstatement provisions of the Mine Act. Reinstated miners often are not ultimately successful

4

PCS, citing J-Vashington Metro Transit Commission v. Holiday Tours, Inc., 559 F.2d
841, 844 (D.C. Cir. 1977), also maintains that, even if it cannot establish "a mathematical
probability of success," the other factors argue in favor of a stay, so the status quo should be
maintained while the court hears the appeal. Mot. at 4. As discussed below, we do not agree
with the operator's conclusions as to those other factors.
33 FMSHRC Page 129

on the merits of their discrimination claims, even when their claim is brought by the Secretary
pursuant to section .105(c )(2). There is nothing in the Mine Act which contemplates that such
miners would be expected to repay the amounts paid them pursuant to their reinstatement orders;
indeed, that would run counter to the very spirit of the provision, which is to provide immediate
relief to complaining miners while they wait for their cases to be decided. See Gray, slip op. at
14-15, 25-26. That it is the miner, instead of the Secretary, who ultimately brings the case is
irrelevant to this principle.
fu any event, "[i]t is also well-settled that economic loss does not, in and of itself,
constitute irreparable harm.". Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985);
see also Virginia Petroleum, 259 F.2d at 925.
Consequently, we disagree with PCS that not staying the Decision will lead to it suffering
irreparable harm; it will merely be in the same position it would have been had the judge not.
erred by dissolving the economic reinstatement order.
C.

· Whether Other futerested Parties Would be Adversely Affected by a Stay

PCS.also asserts that Baird will not be harmed by a stay. Mot. at 7. Not surprisingly,
Baird and the Secretary vociferously disagree. B. Resp. at 5-6; S. Resp. at 14-16. Given the
aforementioned purpose of the temporary reinstatement provisions, the notion that Baird will not
be harmed by a stay does not withstand scrutiny.
D.

Whether a Stay Would Serve the Public futerest

PCS characterizes the litigation as one only involving private parties, and one in which it
is only requesting that the status quo be maintained while the court hears its appeal. Mot. at 7.
Again,. however, it is giving short shrift to the beneficial effect of the Commission's decision . ·
upon the miner and his ability to pursue his discrimination claim. Accordingly, while a stay
would serve the private interest of PCS, we fail to see. how a stay would serve the public interest,
as set forth by Congress in the Mine Act's temporary reinstatement provisions.

33 FMSHRC Page 130

III.
Conclusion
For the foregoing reasons, we deny PCS's motion for stay pending appeal.

Robert F. Cohen, Jr., Commissioner

33 FMSHRC Page 131

Commissioners Duffy and Young, dissenting:
We would grant PCS's motion and stay the effect of the Commission's January 6, 2011,
decision pending appeal to the Fourth Circuit, because that decision constituted a substantial
departure from the Commission's past practice with regard to the question at issue. See Decision
at 8 n.1 (Commissioners Duffy and Young, dissenting).

33 FMSHRC Page 132

Distribution:
Margaret S. Lopez, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
2400 N Street NW, 51h Floor
Washington, DC 2003 7
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
Robin Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2228
Arlington, VA 22209
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA. 22209-2296
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22°d Floor West
Arlington, VA 22209-2296
Elizabeth McGrail, Esq.,
PCS Administration (USA), Inc.
1101 Skokie Blvd., Suite 400
Northbrook, II 60062
Administrative Law Judge Jacqueline Bulluck
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC Page 133

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

February 16, 2011 .·
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2011~275
A.C. No. 15-12564-230239

v.
LEFT FORK MINING COMPANY, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 December 3, 2010, the Commission received from Left
Fork Mining Co., Inc., ("Left Fork") a motion requesting that the Commission 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). On January 13, 2011, the Commission received a response ftom ·
the Secretary of Labor stating that she opposes the request to reopen the assessment. However,
on January 28, 2011, the Commission received a letter from the Secretary seeking to withdraw .
her opposition.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a). We have held, however, that in
appropriate circumstances, we possess jurisdiction to reopen uncontested assessments that have
become final Commission orders under section lOS(a). Jim Walter Res., Inc., 15 FMSHRC 782,
786-89 (May 1993).

In her letter filed on January 28, the Secretary states that Left Fork and the Mine Safety
and Health Administration have reached agreement on terms for settling the penalty assessments
involved in the captioned proceeding. The Secretary requests withdrawal of her opposition to
allow reopening for the sole purpose of submitting a settlement agreement for approval.

33 FMSHRC Page 134

Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's responses, 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.

Robert F. Cohen, Jr., Commissioner

~l.

·. ·

Patriek.K. Nakamura, Oomutlssionei

33 FMSHRC Page 135

Distribution:
Jim Brummett
Conference Officer
Left Fork Mining Company, Inc.
P.0.Box405
Arjay, KY 40902
W. Christian Schumann, Esq.
Office of the Solicitor · · ·
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25 1h 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

33 FMSHRC Page 136

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

February 17, 2011
SECRETARY OF LABOR,
MINE SAFETY AND.HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2010-687
A.C. No. 46-01544-202432

v.
SPARTAN MINING COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On March I, 2010, the Commission received from Spartan
Mining Company, 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).
On March 23, 2010, the Commission received a response from the Secretary of Labor stating that
she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section lOS(a) . .Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 199~) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R.
§ 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to

33 FMSHRC Page 137

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 facts and circumstances of this case, the operator's request, and the
Secretary's response, 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

33 FMSHRC Page 138

Distribution:
Max L. Corley, III, Esq.
Dinsmore & Shohl, LLP
P. 0. Box 11887
900 Lee Street, Suite 600
Charleston, WV 25339
W. Christian Schumann, Esq.
Office ofthe Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
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

33 FMSHRC Page 139

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

February 17, 2011
SECRETARY OF LABOR,
MINE SAFETY ANb HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2011-124-M
A.C. No. 10-02105~208355

v.
ROWDY CRUSHING, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 19, 20 l 0, _the Commission received a letter
requesting that the Commission reopen a penalty assessment issued to Rowdy Crushing, £nc.
("Rowdy") that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final 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. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
33 FMSHRC Page 140

Rowdy requests reopening of Proposed Assessment No. 000208355, dated January 12,
2010, because it never received the proposed assessment. It also states that it has been contacted
by a collection agency with regard to the penalties involved.
According to the Secretary, the proposed assessment and a subsequent delinquency notice
were returned undelivered from the address of record that the Department of Labor's Mine Safety
and Health Administration ("MSHA") has had for Rowdy since early 2007. The Secretary does
not oppose reopening, but states that it is the operator's responsibility to keep its address of
record current with the MSHA district office.
Rowdy explains that it filed a change of address with MSHA's Boise office. That office,
however, is an MSHA field office, not an MSHA district office. Rowdy should ensure that its
current address is on file with the MSHA district office for Idaho, which is in Vacaville,
California.
Having reviewed Rowdy'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.

33 FMSHRC Page 141

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. 1 ·

Robert F. Cohen, Jr., Commissioner

~l
·

..

PatriekK. Nakamura, Go~ss10ner

1

The request to reopen was filed by Troy Thurgood of Thurgood Business Services,
LLC. Commission Procedural Rule 3 provides that, in order to practice before the Commission,
a person must either be an attorney or fall into one of the categories in Rule 3{b), which include
parties, representatives of miners, an "owner, partner, officer or employee" of certain parties, or
"[a]ny other person with the permission of the presiding judge or the Commission." 29 C.F.R.
§ 2700.3(b). It is unclear whether Mr. Thurgood satisfied the requirements of Rule 3 when he
filed the operator's request. We have determined that, despite this, we will consider the merits of
the operator's request in this instance. However, in any future proceeding before the
Commission, including further proceedings in this case, Mr. Thurgood must demonstrate to the
Commission or presiding judge that he fits within one of the categories set forth in Rule 3(b)(I)(3) or seek permission to practice before the Commission or judge pursuant to Rule 3(b)(4).
33 FMSHRC Page 142

Distribution:
Troy Thurgood
Rowdy Crushing, Inc.
P.O. Box 328
St. Anthony, ID 83455
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h 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

33 FMSHRC Page 143

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

SUITE9500

WASHINGTON, DC 20001

February 17, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2011-96-M
A.C. No. 12-02265-225455

v.
JOHNSON CONSTRUCTION
MATERIALS

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 27, 2010, the Commission received from
Johnson Construction Materials ("Johnson") a letter requesting 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. § 81,S(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) C'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

33 FMSHRC Page 144

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).
Johnson requests reopening of Proposed Assessment No. 000225455, dated July 8, 2010,
because it did not receive the assessment on a timely basis. According to Johnson, it relocated its
offices that month, and a business with which it shared the former location has been signing for
its mail there but not forwarding it. The Secretary does not oppose reopening, but states that it is
the operator's responsibility to keep its address of record current with the MSHA district office.
Johnson includes its new address in its letter requesting reopening. Johnson should
ensure that its current address is on file with the applicable MSHA district office, which in this
instance is in Duluth, Minnesota.
Having reviewed Johnson'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.

M Lordan, ,airman .

Robert F. Cohen, Jr., Commissioner

~Ll

·. ·

PatriekK. Nakamura, Goinmissioner

33 FMSHRC Page 145

U1stnbution:
Scott D. Alexander, CEO
Johnson Construction· Materials
P.0.Box443
Columbus, IN 47201
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
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

33 FMSHRC Page 146

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

SUITE9500
WASHINGTON, DC 20001

February 17, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2010-1600
A.C. No. 48-00977-222396

v.
THUNDER BASIN COAL COMPANY, LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 July 28, 2010, the Commission received from
Thunder Basin Coal Company, LLC, 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). On August 6, 2010, the Commission received a response from the Secretary of
Labor stating, that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (".!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.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

33 FMSHRC Page 147

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 facts and circumstances of this case, the operator's request, and the
Secretary's response, 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 ofthis order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

~l.
·

Patriek K. Nakamura, Gonn;nissionei

33 FMSHRC Page 148

Distribution:
Laura E. Beverage, Esq.
Jackson Kelly PLLC
1099 l81h 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
Melanie Garris
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

33 FMSHRC Page 149

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

February 17, 2011
SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2011-65-M
A.C. No. 47-03228-230756

v.
HOLSCHBACH EXCAVATING, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health A.ct of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On October 15, 2010, the Commission receivedfrom
Holschbach Excavating, Inc., a letter requesting that the Commission reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a). On November 23, 2010, the Commission received a response
from the Secretary of Labor stating that she does not oppose the re.quest to reopen the
assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR."). In evaluating requests to
reopen final 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
33 FMSHRC Page 150

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 facts and circwnstances of this case, the operator's request, and the
Secretary's response, 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

~l.
·

PatriekK. Nakamura, Goill.\ltlssioner

33 FMSHRC Page 151

Distribution:
Steve Holschbach
President
Holschbach Excavating, Inc.
212 Apple Blossom Lane
Manitowoc, WI 54220
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296 ..
Melanie Garris
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 & Heatth Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC Page 152

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

February 22, 2011
Docket No. KENT 2010-790
A.C. No. 15-18687-203607

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

Docket No. KENT 2010-791
A.C.No. 15-18854-203608

v.

Docket No. KENT 2010-792
A.C. No. 15-19080-203613

LIGGETT MINING, LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). 1 On March 10, 2010, the Commission received from
Liggett Mining, LLC ("Liggett") motions seeking to reopen three penalty assessments that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers KENT 2010-790, KENT 2010-791, and KENT 2010-792, all
captioned Liggett Mining, LLC, and all involving the same procedural issues. 29 C.F.R.
§ 2700.12.
33 FMSHRC Page 153

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. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
On November 19, 2009, the Department of Labor's Mine Safety and Health
.
Administration ("MSHA") issued Proposed Assessment Nos. 000203607, 000203608, and ·
000203613 to Liggett for54 citations that MSHA had issued to the operator. Liggett,
represented by George R. Bowman,2 states that upon receipt, the company's human resources
manager forwarded the assessments via email to the company's representative to have co.ntests
filed for each, but "could not confirm with any certainty that the email transmittal was received."
Mot. at 2. Liggett asserts that its representative did not have any record of receiving the emails.
Id. On April 6, 2010, the Commission received responses from the Secretary of Labor stating
that she does not oppose the request to reopen the assessments.
Having reviewed Liggett's requests and the Secretary's responses, we conclude that
Liggett has failed to provide a sufficiently detailed explanation for its failure to timely contest the
proposed penalty assessments. The operator's explanation that it could not confirm tbe emails it
sent to its representative were received, without any further elaboration, does not provide us with
an adequate basis to justify reopening the assessment. We note in particular that Liggett failed to
provide any documentation of those emails or explain its failure to do so~ Nor did Liggett .
explain what, if anything, was done to confirm that the emails, which related to a total of $67,544
in penalties, were received by the representative. Accordingly, we deny without prejudice
· Liggett's request. See, e.g., Eastern Assoc. Coal LLC, 30 FMSHRC 392, 394 (May2008); James
Hamilton Cpnstr., 29 FMSHRC 569, 570 (July 2007).

2

The request to reopen was sent by George R. Bowman, who states that he represents
Liggett. Commission Procedural Rule 3 provides that, in order to practice before the
Commission, a person must either be an attorney or fall into one of the categories in
Rule 3(b), which include parties, representatives of miners, an "owner, partner, officer or
employee" of certain parties, or ''[a]ny other person with the permission of the presiding judge or
the Commission." 29 C.F.R. § 2700.3(b). It is unclear whether Mr. Bowman satisfied the
requirements of Rule 3 when he filed the operator's request. We have determined that, despite
this, we will consider the merits of the operator's request in this instance. However, in any future
proceeding before the Commission, including further proceedings in this case, Mr. Bowman must
demonstrate to the Commission or presiding judge that he fits within one of the categories set
forth in Rule 3(b)(l)-(3}or seek permission to practice before the Commission orjudge pursuant
to Rule 3(b)(4).
33 FMSHRC Page 154

Any amended or renewed request by Liggett to reopen Assessment Nos. 000203607,
000203608, and 000203613 must be filed within 30 days of the date of this order. Any such
request filed after that time will be denied with prejudice.

Robert F. Cohen, Jr., Commissioner

~~l.
·

PatriekK. Nakamura, Gomtnissioner

33 FMSHRC Page 155

Distribution:
George R. Bowman
Liggett Mining, LLC
P.O. Box 532
Coal City, WV 25823
W. Christian Schumann, Esq.
Office of the Soli.citor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25t11 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

33 FMSHRC Page 156

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

February 25, 2011
SECRETARY OF LABOR,
MINE SAFETY AND-HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2010-1063-M
A.C. No. 14-00481-221117

v.
ALSOP SAND COMPANY, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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 July 28, 2010, the Commission received from
Alsop Sand Company, Inc., a letter from-the company's president requesting to reope11 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). On August 5, 2010, the Commission received a respo_nse from the
Secretary of I:abor stating that she does not oppose the request to reopen the assessment.
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 assess:rnent
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(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

33 FMSHRC Page 157

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 facts and circumstances of this case, the operator's request, and the
Secretary's response, 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

~ll·.·.
·

Patriek K. Nakamura, Go•ssioner

33FMSHRCPage 158

Distribution:

Dane Q. Barclay, President
Alsop Sand Company, Inc.
105 Industrial Rd.
Concordia, KS 66901
W. Christian Schumann, Esq.
Office of the Solicitor ·
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h 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

33 FMSHRC Page 159

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

February 25, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2008-738-M
A.C. No. 54-00298-150207

v.
CANTERA HIPODROMO, INC.

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

ORDER
BY: Jordan, Chairman; Cohen and Nakamura, Commissioners
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 9, 2009, Chief Administrative Law Judge
Robert J. Lesnick issued to Cantera Hipodromo, Inc. ("Cantera'') an Order to Show Cause for .
failure to answer the Secretary of Labor's petition for a5sessment of civil penalty. On August 11,
2010, Judge Lesnick entered an Order of Default against Cantera.
On September 20, 2010, the Commission received a motion from Cantera requesting that
the Commission reopen the penalty assessment proceeding and relieve it from the order of
default. Cantera explains that it never received the Judge's December 9 Order to Show Cause.
The operator requests an opportunity to file an answer to the Secretary's petition for assessment
of penalty. The Secretary does not oppose the operator's motion to reopen.

The judge's jurisdiction in this matter terminated when his decision was issued on
August 11, 2010. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's
procedural rules, relief from a judge's decision may be sought by filing a petition for
discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 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)(l). The judge's order
became a final decision of the Commission on September 20, 2010.
In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60{b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled
33 FMSHRC Page 160

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"); Jim Walter Res., Inc., 15 FMSHRC 782,
786-89(May 1993). 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).
Upon review of the record, it appears that Cantera did not receive the show cause order.
The envelope containing the show cause order was marked with a message indicating that it was
not deliverable as addressed. In the interest ofjustice, we hereby reopen the proceedings and
vacate the Order of Default. See generally Sanders, formerly emp. by Natural Materials, LLC,
31 FMSHRC I 022, 1024 (Sept. 2009) (vacating default order when show cause order might not
have been received). Cantera shall file a response to the judge's show cause within 30 days after
the date it r~ceives this order. 1

Robert F. Cohen, Jr., Commissioner

1

Our colleagues Commissioners Duffy and Young would have the Commission reopen
the case directly rather than require a response to the judge's show cause order, in order to
"conserv[e] judicial resources." While this approach is simpler, it fails to recognize that the
matter before us is the show cause order which Cantera did not respond to because it did not
receive it. It is the province of the Chief Judge, not us, to determine whether Cantera can
demonstrate good cause for its failure to answer the Secretary's petition for assessment of civil
penalty, as required by 29 C.F.R. § 2700.29.
33 FMSHRC Page 161

Commissioners Duffy and Young; concurring in part and dissenting in part:
We conclude that Cantera Hipodromo, hie. ha5 provided adequate justification and
documentation to support its request for relief from default, particularly given that the Secretary
of Labor does not oppose the operator's request. Like our colleagues in the majority, we would
vacate the order of default. However, in the interests of justice and conseiving judicial resources,
rather than requiring the operator to respond to the show cause order, we would require the
operator to file an answer to the Secretary's petition for assessment of penalty within 30 days of
this order.

33 FMSHRC Page 162

Distribution:
Manuel A. Quilichini, Esq.
P.O. Box 194231
San Juan, PR 00919-4231
Suzanne L. Demitrio, Esq.
Office of the Solicitor
U.S. Department of Labor
201 Varick Street, Room 983
New York, NY 10014

W. Cbristian Schumann, Esq.
Office of the Solicitor
U.S. Department of Lbor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Gap-is
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25 1h 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

33 FMSHRC Page 163

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

February 25, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2010-580
A.C. No. 01-02901-189700

v.
DRUMMOND COMPANY, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
~ 801 et seq. (2006) ("'Mine Act"). On March 22, 2010, the Commission received from

Drummond Company, fuc. ("Drummond") a letter 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).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 {May 1993) ("JWR"). In evaluating requests to
reopen final se~tion 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. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
33 FMSHRC Page 164

On July 1, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000189700 to Dnimmond. Counsel for Drummond
contends that on the day management sent the email notifying him to contest the proposed
penalty, he was out of the office on business in an area without mobile data service and that he
received the email later that evening when he returned to a covered area. He contends that he
attempted to set a reminder on his calendar via his mobile phone, but failed to properly do so.
Consequently, he failed to file a contest. Counsel contends that this oversight was discovered
during a recent audit of the company's files.
The Secretary opposes Drummond's request to reopen. She states that Drummond's
inadequate and unreliable internal office procedures do not constitute grounds for relief under
Rule 60(b). The Secretary also notes that the operator waited approximately five and a half
months (from about September 24, 2009, to March 22, 2010) after being notified ofits
delinquency to file its request.
Drummond filed a response explaining in great detail its counsel's oversight and stating
that the incident was not a case of unreliable internal office procedure, but an inadvertent error on
counsel's part. It contends that it did not knowingly delay in seeking to roopen, but only
discovered the omission when it recently audited its civil penalty files in the second week of
March 2010 and promptly file a request to reopen.
The ,Secretary continues to oppose the operator's request, noting that the operator's
response does not even attempt to explain why the operator waited approximately five and a half
months after it was sent a delinquency notice.
Given the significant time lapse between MSHA's notification of delinquency and the
operator's failure to sufficiently explain the delay, we cannot conclude that its failure to timely
contest this assessment amounts to mistake or inadvertence warranting relief. Moreover, even
after the ~ecretary's identification of Drummond's failure to seek reopening promptly after being
notified of its delinquency, Drummond provided no explanation for the delay of over five months
in seeking to reopen.

33 FMSHRC Page 165

Based on the foregoing, we conclude that Drummond has failed to provide an adequate
basis for the Commission to reopen the penalty assessment. See Pinnacle Mining Co., 30
FMSHRC 1061, 1062-63 (Dec. 2008) (denying relief because operator's excuse was
insufficient); Pinnacle Mining Co., 30 FMSHRC 1066, 1067-68 (Dec. 2008) (same) ..
Accordingly, we deny Drummond's request to reopen.

Robert F. Cohen, Jr., Commissioner

~~l.

·. ·

Patriek .K. Nakamura, Go•ssionei

33 FMSHRC Page 166

Distribution:
Damon J. Boiles, III
for Drummond Company
1000 Urban Center Dr., Suite 300
Birmingham, AL 35242
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25 1h 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
Wa-;hingt,:m, D.C. 20001-2021

33 FMSHRC Page 167

33 FMSHRC Page 168

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
72119TH STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5266/FAX 303-844-5268

January 4, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2007-139
A.C. No. 11-02752-113419
Docket No. LAKE 2008-79
A.C. No. 11-02752-131664-01
Docket No. LAKE 2008-41
A.C. No. 11-02752-129287-05
Docket No. LAKE 2008-84
A.C. No. 11-02752-131664-06
Docket No. LAKE 2008-122
A.C. No. 11-02752-133868-05

v.

Docket No. LAKE 2008-237
A.C. No. 11-02752-139912-07
Docket No. LAKE 2008-532
A.C. No. 11-02752-153962-08
Docket No. LAKE 2008-536
A.C. No. 11-02752-153962-12
Docket No. LAKE 2008-537
A.C. No. 11-02752-153962-13
Docket No. LAKE 2008-538
A.C. No. 11-02752-153962-14
Docket No. LAKE 2008-539
A.C. No. 11-02752-153962-15

THE AMERICAN COAL COMPANY,
Respondent.

Docket No. LAKE 2008-42
A.C. No. 11-02752-129287-06

33 FMSHRC Page 169

Docket No. LAKE 2008-43
A.C. No. 11-02752-129287-07

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

Docket No. LAKE 2008-81
A.C. No. 11-02752-131664-03
Docket No. LAKE 2008-145
A.C. No. 11-02752-136300-08 , ·
Docket No. LAKE 2008-533
A.C. No. 11-02752-153962-09

v.
Docket No. LAKE 2008-534
A.C. No. 11-02752-153962-10
Docket No. LAKE 2008-535
A.C. No. 11-02752-153962-11
THE AMERICAN COAL COMPANY,
Respondent.

Mine: Galatia Mine

DECISION AND ORDER

Appearances:

Travis Gosselin, Suzanne Dunne, Office of the Solicitor, U.S.
Department of Labor, Chicago, Illinois, for Petitioner;
Marco Rajkovich, Noelle True, Rajkovich, Williams, Kilpatrick &
True, PLLC, Lexington, Kentucky, for Respondent.

Before:

. Judge Miller

The Respondent requested a hearing on the citations, orders, and associated proposed
penalties contained in these do~kets in accordance with the provisions of section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq. ("Mine Act") and 29 C.F.R. §
2700.50 et seq. The only citations that remain at issue in the above captioned dockets are for
violations of safeguards. All other Citations and orders contained in the dockets were resolved
and an order approving the partial settlement was entered in each.
American Coal Company ("American" or "Respondent") filed two separate motions for
summary decision addressing the remaining citations and the validity of the underlying
safeguards. On September 20, 2010; after a thorough review of the files and the briefs :filed by
the parties, I issued an Order Denying Respondent's Motion for Summary Decision which
addressed a number of the contested safeguards. A second Order Denying Respondent's Motion
33 FMSHRC Page 170

for Summary Dedsion accompanies this decision and addresses the remaining safeguards. Both
orders affirm the validity of the underlying safeguards. The parties have agreed that the
remaining matters related to each citation can be addressed through stipulations. The stipulations
allow for a final order to be issued so that the validity of the underlying safeguards can then be
appealed.
I have reviewed the stipulations and explanations of the parties and agree that the
modifications and proposed penalties contained in the stipulations are appropriate and the basis
for issuing the final decisions in these cases. The stipulations are as follows:
1. The Federal Mine Safety and Health Review Commission has
jurisdiction over this proceeding.
2. At all times relevant to these proceedings, American Coal's
operations affected interstate commerce.
3. At all times relevant to these proceedings, American Coal
owned and operated the Galatia Mine, which is located in
Saline County, Illinois.
4. The Galatia Mine is an underground mine for the extraction of
bituminous coal.
5. At all times relevant to these proceedings, the Galatia Mine
was owned by American Coal Company.
6. Respondent produced 6,267,253 tons at all of its mines during
the period January 1, 2009 to December 31, 2009.
7. Respondent had 1857 previous violations in the 15 month
period ending February.IS, 2007.
8. The subject citations were properly served upon an agent of
Contestant.
, 9. Pending appellate review of the Judge's decision in this case on
- the validity of the safeguards, the determinations of gravity and
negligence and the penalty amounts of the following citations
are stipulated to by the parties as follows: 1
The parties have also agreed through joint stipulation, to the following findings as to the
gravity, negligence and penalty amount for each citation:
Docket No. LAKE 2007-139
This docket has a total of 16 violations assessed at $44,612.00. All but two violations are
subject to a partial settlement that has been entered. The remaining two citations are safeguards
with total assessed penalties for $5,246.00. The parties agree that the penalty amount for the
·
safeguard citations should be $4,814.00.
1

The remaining stipulations of the parties are incorporated into the fmdings and order that
follow.

33 FMSHRC Page 171

Citation No. 7491576: the parties agree that the citation remains unchanged with a
proposed penalty of $3,086.00.
Citation No. 7491342: the parties agree that due to the dispute over the gravity, the
penalty is reduced from $2,160.00 to $1,728.00.

Docket No. LAKE 2008-41
This docket has 19 violations assessed at $6,063.00. All but four violations are subject to a
partial settlement that was previously ordered. The total assessed penalty for the remaining
safeguards is $1,051.00 and the proposed settlement amount is $1,051.00.
Citation No. 6667302: the parties agree that the citation remains as issued with a
proposed penalty of $127.00.
Citation No. 6669738: the parties agree that the citation remains as issued with a
proposed penalty of $308.00.
Citation No. 7490537: the parties agree that the citation remains as issued with a
proposed penalty of$308.00.
Citation No. 7490540: the parties agree that the citation remains as issued with a
proposed penalty of $308.00.

Docket No. LAKE 2008-42
This docket _has 20 violations assessed a total penalty of$6,381.00. All but five violations are
subject to a partial settlement that was previously ordered. The total assessed penalty for the
remaining safeguards is $1,530.00 and the proposed total penalty amount is $1,530.00.
Citation No. 7490993: the parties agree that the citation remains as issued with a
proposed penalty of $334.00.
Citation No. 7490844: the parties agree that the citation remains as issued with a
proposed penalty of $285.00.
Citation No. 7490562: the parties agree that the citation remains as issued with a
proposed penalty of $334.00.
Citation No. 7490563: the parties agree that the citation remains as issued with a
proposed penalty of $334.00.

33 FMSHRC Page 172

Citation No. 6668301: the parties agree that the citation remains as issued with a
proposed penalty of $243.00.

Docket No. LAKE 2008-43
This docket contains 18 violations assessed a total penalty of$5,857.00. All but two violations
are subject to a partial settlement order. The total assessed penalty for the remaining safeguards
is $570.00 and the penalty proposed by the parties is $570.00.
Citation No. 6668322: the parties agree that the citation remains as issued with a
proposed penalty of$285.00.
Citation No. 6668325: the parties agree that the citation remains as issued with a
proposed penalty of $285.00.

Docket No. LAKE 2008-79
This docket contains 20 violations with a total assessed penalty of $52,383.00. All but three of
the violations are subject of a partial settlement order entered previously in this case. The
remaining violations have a proposed assessment of$7,801.00 and the parties agree that the
amended penalty amount for these safeguards is $3,047.00.
Citation No. 6667854: the parties agree to the fact of the violation but there is a dispute
as to the gravity of the violation and therefore the penalty is from $1,700.00 to $1,360.00.
Citation No. 7490598: the parties agree that the negligence is reduced from moderate to
low with a reduction in penalty from $4,689.00 to $1,052.00.
Citation No. 666811: the parties agree that the negligence of the citation should be
changed from moderate to low with a reduction in the proposed penalty from $1,412.00
to $635.00.

Docket No. LAKE 2008-81
This docket contains 21 violations with a proposed assessment of $61,24 7.00. All but two of the
violations were resolved by partial settlement order. The total assessed penalty for the remaining
safeguards is $2,970.00 and the proposed amended penalty for the safeguards is $2,376.00.
Citation No. 6666952: the parties agree that the violation is as set forth in the citation
but there is a dispute as to the gravity of the violation and therefore the penalty is reduced
from $1,026.00 to $821.00.
Citation No. 6667919: the parties agree that there is a dispute as to the gravity of the

33 FMSHRC Page 173

violation and therefore the proposed penalty is reduced from $1,944.00 to $1,555.00.

Docket No. LAKE 2008-84
This docket contains 12 violations with a total proposed penalty of$3,103.00~ All but one of the
violations was resolved in a partial settlement. The remaining violation has a proposed
assessment of $285.00 and the Respondent has agreed to pay$ 285;00 for the remaining
violation.
Citation No. 6668128: the parties agree that the citation remains unchanged with a
proposed penalty of$285.00.

Docket No. LAKE 2008-122
This docket contains 20 violations with a total proposed penalty of $6,426.00. All but four of the
citations have been resolved by a partial settlement agreement. The remaining violations have a
proposed penalty of$1,074.00 and the Respondent has agreed to pay a penalty of$1,074.00 for
the violations.
Citation No. 7490888: the parties agree that the citation remains as issued with a
proposed penalty of $263.00.
Citation No. 7490889: the parties agree that the citation remains as issued with a
proposed penalty of$285.00.
Citation No. 7490890: the parties agree that the citation remains as issued with the
proposed penalty of$263.00.
Citation No. 6668512: the parties agree that the citation remains as issued with a
proposed penalty of$263.00.

Docket No. LAKE 2008-145
This docket contains 20 violations with a total proposed penalty of $5,355.00. All but four of the
citations were settled by agreement and an order for partial settlement has been entered. The
remaining citations have a proposed penalty of $1,052.00 and the Respondent has agreed to pay
$1,052.00 for the four violations.
Citation No. 6673223: the parties agree that the citation remains as issued with a
proposed penalty of$263.00.
Citation No. 6668599: the parties agree that the citation remains as issued with a
proposed penalty of $263.00.

33 FMSHRC Page 174

Citation No. 6668169: the parties agree that the citation remains as issued with a
proposed penalty of $263.00.
Citation No. 6673811: the parties agree that the citation remains as issued with a
proposed penalty of $263.00.

Docket No. LAKE 2008-237
This docket contains 20 violations with a total proposed penalty of$4,590.00. All but four of the
violations have been resolved by a motion for partial settlement that has been previously ordered.
The total assessed penalty for the four remaining safeguard violations is $949.00 and the
Respondent has agreed to pay $949.00 for the violations.
Citation No. 6673822: the parties agree that the citation remains as issued with a
proposed penalty of $263.00.
Citation No. 6672946: the parties agree that the citation remains as issued with a
proposed penalty of $362.00.
Citation No. 6672947: the parties agree that the citation remains as issued with a
proposed penalty of $100.00.
Citation No. 6673246: the parties agree that the citation remains as issued with a
proposed penalty of $224.00.

Docket No. LAKE 2008-532
This docket cpntains 20 violations with a proposed penalty assessed at $53,982.00. All but two
of the violations have been resolved previously by a motion for partial settlement. The total
assessed penalty for the remaining two safeguard violations is $3,551.00. The proposed amended
penalty for the violations is $1,901.00
Citation No. 6673534: the parties agree that the violation occurred as set forth in the
citation but there is a dispute as to the gravity of the violation. The proposed penalty is
reduced from $873.00 to $698.00.
Citation No. 6673539: the parties agree that the negligence will be modified from
moderate to low with a reduction in the proposed penalty from $2,678.00 to $1,203.00.

Docket No. LAKE 2008-533
This docket has 20 violations that were assessed a total penalty of$ 30,707:00. All but two of
the violations are subject to a previous order granting a partial settlement. The total assessed

33 FMSHRC Page 175

penalties for the remaining two safeguard violations is $1, 746.00 and the proposed amended
amount is $1,396.00 for the two violations.
Citation No. 6673547: the parties agree that theviolation is as issued but that there is a
dispute as to the gravity of the violation and therefore the parties have agreed to reduce
the penalty from $873.00 to $698.00.
Citation No. 6673550: the parties agree that the violation is as issued but that there is a
dispute as to the gravity of the violation and therefore the parties have agreed to a
reduction in penalty from $873.00 to $698.00.

Docket No. LAKE 2008-534
This docket contains 20 violations with a total assessed penalty of $45,361.00. All but three of
the violations have been settled and are subject to a previous order. The total proposed penalty
for the remaining three safeguard violations is $12,667.00 and the amended proposed amount
$2,774.00.
Citation No. 6673581: the parties agree that the violation remains as issued but an
element of the gravity is changed to "unlikely" and therefore the parties agree to a
reduction in penalty from $8,893.00 to $1,796.00.
Citation No. 6673564: the parties agreethatthe violation remains as issued, but an
element of the gravity is modified to "unlikely'' with a reduction in penalty from
$2,901.00 to $586.00.
Citation No. 6673568: the parties agree that the violation remains as issued but there ar~
mitigating factors as to the negligence and it is modified from moderate to low with a
reduction in penalty from $873.00 to $392.00.

Docket No. LAKE 2008-535
This docket contains 20 violations with a total assessed penalty of$35,279.00. All but two
violations have been settled and are subject to a previous order approving settlement. The
penalty amount remaining for the two violations is $3,774.00 and the Respondent has agreed to
pay $3, 774.00 for the violations.
Citation No. 6674181: the parties agree thatthe citation remains as issued with a
proposed penalty of $2,901.00.
Citation No. 6673599: the parties agree that the citation remains as issued with a
proposed penalty of $873.00.

33 FMSHRC Page 176

Docket No. LAKE 2008-536
This docket contains 11 violations assessed at $27,473.00. All but one of the citations have been
settled and are subject to a previous order approving settlement. The total assessed penalty for the
remaining safeguard violation is $3,996.00 and the proposed amended penalty is $3,197.00.
Citation No. 6674210: the parties agree that the violation remains as issued but there is a
dispute as to the gravity and therefore the parties agree in a reduction of penalty from
$3,996.00 to $3,197.00.

Docket No. LAKE 2008-537
This docket contains 20 violations with a total assessed penalty of $4,242.00. All but four of the
violations were settled and are subject to a previous order approving settlement. The remaining
four violations are assessed a total penalty of $738.00 and Respondent has agreed to pay $738.00
for those violations.
Citation No. 6673300: the parties agree that the citation remains as issued with a
proposed penalty of$207.00.
Citation No. 6673286: the parties agree that the citation remains as issued with a
proposed penalty of $207.00.
Citation No. 6673913: the parties agree that the citation remains as issued with a
proposed penalty of$162.00.
Citation No. 6673926: the parties agree that the citation remains as issued with a
proposed penalty of$162.00 .
.

\

Docket No. LAKE 2008-538
This docket contains 19 violations with a total penalty assessed at $7,271.00. All but two
citations are settled and subject to a previous order approving settlement. The remaining two
violations have a proposed total assessed penalty of $324.00 and the Respondent has agreed to
pay $324.00 for those violations.
Citation No. 6672815: the parties agree that the citation remains as issued with a
proposed penalty of$162.00. This citation was mistakenly addressed in Docket No. Lake
2008-539 in the settlement agreement but is properly included in this docket.
Citation No. 6674135: the parties agree that the citation remains as issued with a
proposed penalty of$162.00.

33 FMSHRC Page 177

Docket No. LAKE 2008-539
This docket contains 8 violations with a proposed assessed penalty of $7 ,271.00. All but one of
the citations were settled and are the subject of a previous order approving settlement. The total
assessed penalty for the remaining safeguard violation is $162.00 and the Respondent has agreed
to pay that amount for the violation.
Citation No. 6674186: the parties agree that the citation remains as issued with a
proposed penalty of$162.00.
I accept the representations and the modifications of the Secretary as set forth in the joint
stipulations and issue this decision based upon those stipulations. I have considered the
representations and docilrnentation submitted, find that the modifications are reasonable and I
conclude that the penalties proposed are appropriate under the criteria set forth in section 11 O(i)
of the Act.
I incorporate into this decision, the order on summary decision that I issued on September
20, 2010, and the order on summary decision issued contemporaneously with this order. Those
decisions explain the basis for accepting the safeguards as issued by MSHA, and with these
stipulations, I reach a final decision on all matters related to these cases.

ORDER
The total amount assessed for the safeguard citations at issue in these dockets is
$49,486.00. I AFFIRM each citation as set forth above and assess the following penalties:
Citation No. 7491576
Citation Nor 7491342
Citation No. 6667302
Citation No. 6669738
Citation No. 7490537
Citation No. 7490540
Citation No. 7490993
Citation No. 7490844
Citation No. 7490562
Citation No. 7490563
Citation No. 6668301
Citation No. 6668322
Citation No. 6668325
Citation No. 6667854
Citation No. 7490598
Citation No. 6668111
Citation No. 6666952

$3,086.00
$1,728.00
$127.00
$308.00
$308.00
$308.00
$334.00
$285.00
$334.00
$334.00
$243.00
$285.00
$285.00
$1,360.00
$1,052.00
$635.00
$821.00

33 FMSHRC Page 178

Citation No. 6667919
Citation No. 6668128
Citation No. 7490888
Citation No. 7490889
Citation No. 7490890
Citation No. 6668512
Citation No. 6673223
Citation No. 6668599
Citation No. 6668169
Citation No. 6673811
Citation No. 6673822
Citation No. 6672946
Citation No. 6672947
Citation No. 6673246
Citation No. 6673534
CitationNo. 6673539
Citation No. 6673547
Citation No. 6673550
Citation No. 6673581
Citation No. 6673564
Citation No. 6673568
Citation No. 6674181
Citation No. 6673599
Citation No. 66742-10
Citation No. 6673300
Citation No. 6673286
Citation No. 6673913
Citation No. 6673926
Citation No. 6672815
Citation No. 6674135
Citation No. 6674186

Total

$1,555.00
$285.00
$263.00
$285.00
$263.00
$263.00
$263.00
$263.00
$263.00
$263.00
$263.00
$362.00
$100.00
$224.00
$698.00
$1,203.00
$698.00
$698.00
$1,796.00
$586.00
$392.00
$2,901.00
$873.00
:$3,197.00
$207.00
$207.00
$162.00
$162.00
$162.00
$162.00
$162.00
$31,014.00

In addition to the penalties that were assessed in the decision approving partial settlement
in each docket, The American Coal Company is hereby ORDERED to pay the Secretary of
Labor the sum of $31,014.00 for the 48 violations listed above, within 30 days of the date of this
decision.

~)a.I,~
Margar
. Miller
Administrative Law Judge

33 FMSHRC Page 179

Distribution: (Certified First Class U.S. Mail)
Suzanne Dunne, Esq., Travis W. Gosselin, Esq., Emelda Medrano, Esq., U.S. Department of
Labor, Office of the Solicitor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604 ·
Marco Rajkovich, Esq. Noelle Holladay True, Esq., Rajkovich, Williams, Kilpatrick & True,
PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington, KY 40513

33 FMSHRC Page 180

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

January 4, 2011
DISCRIMINATION PROCEEDING

LONNIE BELCHER,
Complainant

Docket No. VA 2010-249-D
NORT CD 2009-08

v.
BATES CONTRACTING AND
CONSTRUCTION, and SURFACE
MINERALS COMPANY
Respondent

MINE: Surface Minerals/Jones Fork
MINE ID: 44-07126

DECISION
Appearances: Lonnie Belcher, Jr., Big Rock, VA, pro se;
Anna M. Daily, Esq., Dinsmore & Shohl, Charleston, WV
Behalf of Surface Minerals, Co.;
Randal Scott May, Esq., Barret, Haynes, May & Carter, Hazard, KY
On behalf of Bates Contracting & Construction
Before: Judge Rae
This case is before me on a complaint of discrimination filed by Lonnie Belcher
("Belcher") against Surface Minerals Company ("Surface") and Bates Contracting &
Construction, Inc. ("Bates")(or collectively "Respondents"), pursuant to section 105(c) of the
Federal Mine Safety and Health Act of 1977 (the "Act" or "Mine Act"), 30 U.S.C. §815(c). A
trial was held 'in Abingdon, Virginia on September 27, 2010. 1
I.

Procedural Background

Belcher filed a complaint on October 1, 2009, with the Mine Safety and Health Administration
("MSHA"), pursuant to section 105 (c)(2) of the Mine Act, .30 U.S.C. §815(c)(2). 2 By letter

1

The transcript from the hearing was sent back for corrections of errors. The corrected transcript still
has mistakenly recorded the Complainant's name as "R"onnie Belcher rather than "L"onnie Belcher. A
copy of the corrected transcript has been sent to all parties prior to issuance of this decision.
2

Section 105 (c )(2) of the Mine Act states, relevant part:
Any miner---who believes that he has been discharged, interfered with,
or otherwise discriminated against by any person in violation of this
subsection may, within 60 days after such violation occurs, file a
complaint with the Secretary alleging such discrimination. Upon receipt

33 FMSHRC Page 181

dated February 2, 2010, MSHA informed Belcher that, based on the information gathered during
its investigation of his complaint of discrimination, it had determined that a violation of section
105 (c) of the Mine Act did not occur. Belcher, without the assistance of counsel, initiated this
case in an undated request for review which was filed with the Commission, under section
105(c)(3) of the Act, 30 U.S.C. §815(c)(3). 3 Belcher alleges he was terminated from
employment at the Jones Fork mine by Surface and Bates for complaints he made regarding
health and safety at the Jones Fork mine. He also alleges that he was demoted when assigned to
direct traffic the day after he was involved in an accident with a mine truck.
Surface, a Wellmore company, operates the mine at Jones Fork. Bates was hired as an
independent contractor to supply men to work at the facility, Belcher being one ofthe Bates
employees assigned to the job. Both Surface and Bates engage in operations that affect interstate
commerce and both are subject to the jurisdiction of the Mine Act.
Neither Surface nor Bates acknowledges that Belcher was engaged in protected activity or
suffered any adverse action, and they assert that Belcher was removed from driving a truck due to
unsafe practices which was in no way motivated by Belcher engaging in protected activity.
Furthermore, Surface alleges that they are not responsible for any action taken against Belcher as
they were not his employer.
For the reasons set forth below, Complainant's discrimination claim is dismissed.
II.

Statement of the Case

of such complaint, the Secretary shall forward a copy of the complaint to
the respondent and shall cause such investigation to be made as (s)he
deems appropriate ... Ifupon such investigation, the Secretary
determines that the provisions of this subsection have been violated, (s) he
shall immediately file a complaint with the Commission, with service upon
the alleged violator and the miner, .. alleging such discrimination
or interference and propose an order granting appropriate relief.
3

Section 105(c)(3) of the Act states, in relevant part:
Within 90 days of the receipt of a complaint filed under paragraph (2), the
Secretary shall notify, in writing, the miner, applicant for employment, or
representative of miners of his determination whether a violation has
occurred. If the Secretary, upon investigation, determines that the
provisions of this subsection have not been violated, the complainant shall
have the right, within 30 days of notice of the Secretary's determination, to
file an action in his own behalf before the Commission, charging
discrimination or interference in violation of paragraph (1).
30 U.S.C. §815(c)(3).

33 FMSHRC Page 182

fu the summer of 2009, Surface was involved in reclamation activities at the Jones
Fork job site where the company had previously engaged in surface mining activities. Surface
anticipated that the reclamation job would take approximately six weeks to complete and
contacted Bates to supply miners to assist in the project. (TR 140.) Bates operates a contracting
business supplying workers to both surface and underground mines on an as-needed basis and
sent Belcher to Jones Fork on the reclamation project. (TR 144.,.147.) Belcher was assigned as a
driver of a 35 ton Volvo A35C articulated truck. (TR 114-115.)

Belcher was supervised in his job by Foreman Jimmy Kennedy, a certified foreman with
19 Yz years of mining experience. (TR 30-31.) fu addition to Kennedy, there were several other
Surface employees - Tracy Cledinger, Gerald Hess, Joe Vance, Mike Southern, John Bennett,
and Timothy Hibbitts- on the Jones Fork site. The reclamation work started in August 2009 and
ended by mid-October 2009, when only Kennedy and Cledinger were kept on by Surface. (TR
32.)
On September 2, 2009, Belcher was involved in an accident where he drove his truck
down an embankment and rolled the cab onto its side. The next day, he was informed by Bates
thathe was no longer needed at the job site. Belcher alleges he was fired for having engaged in
protected activity prior to the accident. Bates and Surface maintain that Belcher did. not engage·
in protected activity, that he was not fired, that he was removed from the job site due to his
·reckless operation of the truck, that he could have been placed in another position had he not
gone out on workers compensation immediately after the accident. Also, his job as a truck driver
at Jones Fork was temporary and no longer available. Bates also asserts that they informed
Belcher soon after the accident that he would be given other work of a similar type at the same
pay as soon as he informed them he was medically cleared to return to work. Belch~r disagrees
with each of these assertions.

III.

FindiIJ.gs of Fact and Conclusions of Law

Section 105(c)(l) of the Act, 30 U.S.C. §815(c)(l), provid,es that a minor cannot be
discharged, discriminated against or interfered with in the exercise of his statutory rights because:
(1) he "has filed or made a complaint under or related to this Act, ·including a complaint ... of an
alleged danger or safety or health violation," (2) he "is the subject of medical evaluations and
potential transfer under a standard published pursuant to section 101; "(3) he 'has instituted any
proceeding under or related to this Act or has testified or is about to testify in any such
proceeding;" or (4) he has exercised "on behalf of himself or others... any statutory right afforded
by this Act."
fu order to establish a prima facie case of discrimination under section 105 (c)(l), a
complaining miner must show: (1) That he engaged in protected activity; and (2) That the
adverse action he complains of was motivated, at least partially, by that activity. Drissen v
Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr.1998); Secretary on behalf of Robinette v.
United Castle Coal, Co., 3FMSHRC 803 (Apr. 1981 ); Secretary on behalf of Pasula v.

33 FMSHRC Page 183

Consolidation Coal Co~, 2 FMSHRC 2786 (Oct. 1980), rev'd on other grounds sub nom
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd. Cir. 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. Pasula, 2 FMSHRC at 2799-800. If the
operator cannot rebut the prima facie case in this manner, it, nevertheless, may defend
affirmatively by proving that it was also motivated by the miner's unprotected activity and would
have taken the adverse action for the unprotected activity alone~ Id. At 2800; Robinette, 3
FMSHRC at 817-18; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 42 (4th Cir.
1987).
The evidence, as discussed below, establishes that the Complainant engaged in protected
activity and that he was discharged, or otherwise removed from his position, at least in part, as a
result of his protected activity.. However, the evidence also supports an affirmative defense under
Robinette.
A. Protected· Activity · ·
Belcher was assigned to drive a Volvo articulating truck at Jones Fork. Shortly after he
started working there, he made several complaints about various mechanicalproblems ranging
· from a stalling issue and an alternator problem to smoking brakes, a transmission leak and
finally, on· the day of the accident, a warning light on the dash board. (TR 14, 79, 81-83, 94-95.)
The records from the maintenance department verify that several repairs were made on the truck
including replacement of the alternator, install~tion of a transmission gasket to repair a leak,
repair of an oil leak, and dismantling ofthe fuel line to· remove foreign objects from the tank.
(TR 82'-83 and R/SM# 11, 12 and 15.) Mechanic Dale Hibbitts confirmed that he was the: one
who performed the multiple repairs on the truck. (TR 82-85.) Belcher testified that on
September 2, 2009, he reported to Foreman Kennedy that two lights had lit up on the dashboard
and Forema:µ Kennedy told him to keep an eye on it but keep operating the truck. (TR 14.)
Belcher alleges that the brakes had caught fire two days prior to the accident and that they again
malfunctioned causing him to override them, travel down the _hill and flip the cab of the truck. He
was fired the next day.
Respondents argue that the Complainant did not engage in protected activity. Belcher did
testify that he had never made any complaints to MSHA. And when asked if he had ever refused
to work due to an unsafe condition, he replied ''No. I mean Foreman Kennedy he done a good job
he kept everything up." (TR 21.) Daniel Bates also testified that no safety concerns were ever
made known to him by Belcher. (TR 155.) Surface also introduced pre-shift reports completed
by Mr. Belcher to demonstrate that he inspected the vehicle every day and never reported any
issues. R/SM #4 is entitled "Pre-operational Checklists for Surface Mobile Equipment signed by
Lonnie Belcher on August 4, 2009 through September 2, 2009." The testimony established that
Belcher was the only person who operated the Volvo truck during that period with the exception
of September 1, 2009, when he had a doctor's appointment. Quite interestingly, however, the
pre-operational checklists for August 17, 18, 19, 20, 21, 24, 25, 26, 27, 28, September 17, 18, 19,

33 FMSHRC Page 184

20, 21, 24, 25, 26, 27, 28 and 29 (four weeks and one day of reports) are absent. I therefore find
this evidence has little, if any, probative value.

It is quite clear from the record, however, that Belcher had made several mechanical
issues known to his foreman, Jimmy Kennedy, and to the maintenance department as evidenced
by the testimony of Hibbitts, the receipts produced for the repairs and Mr. Bennett's calendar
entries indicating when the repairs were made. (TR 79-96 and R/SM #10-12 and 15.) Thus, I
find sufficient evidence. that Belcher was engaged in protected activity under the Act.

B. Adverse Action
Belcher claims that the day after the accident, on September 3, he reported to work and
was put on flagging duty monitoring a red zone instead of driving a truck; a job he was not
trained to do. He was then fired the evening of September 3, by Daniel Bates. His version of
what occurred is that "after going home, Bates Construction and Contracting Owner Daniel Bates
called me that evening at approximately 7:00 p.m. I was in church and I returned the call at 8:30
p.m. Bates told me, he and Tammy Fields had talked it over and I was no longer needed on the
job. At first, I asked him ifhe was joking and he said no. Bates wanted to know what happened
at Jones Fork mine and I told him." (Complainant's Exhibit C-1.) As Belcher understood it, he
had been fired.
Respondents contend that Belcher was not fired and no adverse action occurred. Instead,
they argue that Belcher was taken off his duty as a truck driver because the Volvo truck was out
of commission for the remainder of the project and no other vehicle was available for Belcher to
drive. Furthermore, since the job had almost come to an end, they determined that the work
Belcher was doing was no longer needed. In support of their position, Foreman Kennedy testified
. as follows in an exchange with counsel for Surface:

A. He came to work the next morning without a return to work slip and was put on
:flagging duty because when he reported to work that morning, he didn't have a return to
work slip, so we had to send him back off. I think he might have had to go back home to
get it. And he come to Larry Dicky and showed him that he had his return to work slip
and he come back up the hill and I sent him down the bottom where I flagged the road off
to watch for traffic

Q. And at that juncture was the truck that he had been driving operational?
A.No.
Q. And when somebody - when you got a piece of equipment down, what sort of
work will you have somebody do if there's not a piece of equipment for them to operate?
A. They would work trash, change oil in equipment, just stuff that I need, bag trash, note

33 FMSHRC Page 185

if we got any danger situations or something like that, work like traffic. Something -try to
keep them busy.

Q. Did anybody step into the position that Mr. Belcher had been doing there at the Jones
Fork job?

A. No
(TR 44-45.)
Robert Litton of the Human Resources and Safety Department further testified as follows:

Q. Would you tell the judge, Mrs. Fields has said that you told her to contact Bates and ·
say that Mr. Belcher was no longer needed. Would you explain to the judge how you
ended up telling Mrs. Fields that? ·
A. Well, there's more than one aspect to that. One is that the truck was out of service and
no longer available, so at that point, I can't pay a contractor to sit around doing nothing.
So I didn't need him from that standpoint. Plus, after reviewing the history of the issues
that we had had with him over the last two or three weeks, I saw no need to have him
back on the property.
(TR at 141-142.)

Mr. Litton clearly stated that there were reasons for removing Belcher from the work site,
other than his truck being inoperable. Foreman Kennedy also testified that he told management,
"I said I don't want him on my job no more. He's a liability risk and I didn't want this-the
responsibility, because I am responsible for all the men. And I felt like he was an unsafe worker
and I just didn't want the responsibility of him." (TR 43.)
Bates testified that on October 27, 2009, he sent Belcher a letterwhich stated, in part,
"when and if we receive the proper documentation from your treating physician releasing you to
return to work at full duty you will be allowed to return to the same type of work for Bates
Contracting prior to your injury at the same rate of pay." (Defendant's Exhibit 4). This letter,
however, was sent after Belcher filed for workers compensation, and more significantly, after he
had filed this discrimination complaint. I find this letter to be self-serving and oflittle probative
value.
Based upon a preponderance of evidence, I conclude that Belcher was fired from both
Surface and Bates. I do not find, however, that his assignment to traffic duty for one day was
adverse action. That was occasioned by the Volvo being out of commission and no other truck
being available for Belcher to driver.

33 FMSHRC Page 186

C. Causal Connection between Protected Activity and Adverse Action
Having concluded that the miner's discharge was an adverse action, I must now determine
whether he was discharged because of his safety complaints. Because the intent or motivation of
the respondent is these cases is difficult to discern, the Commission has set forth guidelines to
assist in making this detennination. It has provided:
We have acknowledged the difficulty in establishing a motivational nexus between
protected activity and the adverse action that is the subject of the complaint. "Direct evidence of
motivation is rarely encountered; more typically, the only available evidence is indirect ... 'Intent
is subjective and in many cases the discrimination can be proven only by use of circumstantial
evidence."' Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp.,3 FMSHRC 2508,
2510 (Nov. 1981), rev'd on other grounds, 709 F.2d 86 (D.C. Cir. 1983) (Quoting NLRB v
Melrose Processing Co., 351F.2d693, 698 (8th Cir. 1965)). In Chacon, we listed some of the
circumstantial indicia of discriminatory intent, including (1) knowledge of the protected actjvity;
(2) hostility or animus towards the protected activity; and (3) coincidence in time between the
protected activity and the adverse action. Id.

Secretary on behalf o/Baierv. Durango Gravel, 21FMSHRC953, 957 (Sept. 1999).
This case is a close call in determining whether Belcher's discharge was motivated, at
least in part, by his protected activity.
Belcher testified that he didn't make complaints to MSHA about safety issues because:
"Kennedy, he done a good job, he kept everything up." (TR 21.) Belcher also indicated in his
written statement that on the day he reported a suspected brake fire, Kennedy told him to bring
the truck to the parking lot and tag it out for the.mechanics to take a look at it. (Complainant's
· Exhibit C-1.),There was also extensive testimony from Dale Hibbitts and John Bennett, the two
on-site mechanics, indicating that Surface was highly responsive to safety issues. Furthennore,
Belcher offered no testimony of any hostile reaction from management in response to his reports
of mechanical issues involving the Volvo truck. He did say in his written statement that
Kennedy told him to stop making his reports because the company was aware of the problems
but, again, he indicated no animosity. (Complainant's Exhibit C-2). The only inference that there
was some exchange of words between Belcher and Kennedy after the accident on September 2
was during Belcher's cross-examination of Tracy Cledinger which went as follows:
Q. Okay. On the day after the accident -you was there during the whole meeting, I mean
Daryl's had to meet me the next day?
A. Yeah, the safety meeting the next day?
Q. Okay. And you heard everything that went on that day?

33 FMSHRC Page 187

A. Prett}' much, yes.
Q. Okay, Now, did you hear Mr. Kennedy state that he didn't have to work for
Wellmore?
A. No, sir, I didn't.
Q. That he could go back on the road?
A. No, sir. I did not come down here and y'all change the words and you told him the
only reason we was working was because you were there.
Q. Yeah. Okay.
A.. You remember saying that?
Q. Yes.
(TR 109.)
I am hard pressed to find this exchange amounts to an indication of hostility or animosity.
I do, however, recognize that Mr. Belcher has preceded pro se and lacks sophistication or legal
expertise and is therefore at a disadvantage in adequately presenting his case. I find that there are
sufficient circumstantial indicia of discriminatory intent as set.forth in.Chacon based upon the
nexus in time between the complaints made and the discharge and management's knowledge of .
those complaints which effectively removed the piece of equipment from service for a substantial
amount of time during the six-week reclamation project.
Accordingly, I conclude that Belcher has established a prima facie case of discrimination
in violation of the.Act.
D. Affirmative Defense
Respondents, in the alternative to alleging that no protected activity is involved in this
case, assert an affirmative defense for removing Belcher from the North Fork mine. Their
position is that Belcher engaged in several safety violations that caused management grave
concern for the safety of the miners and others at the job site. Specifically, Belcher was
reprimanded several times for running his truck through berms resulting in two accidents,
reckless operation of his equipment and making a false official statement regarding the cause of
the September 2nd accident.
The respondent has the burden of proving by a preponderance of all the evidence that it
would have fired Belcher solely because of these unprotected activities. Pasula, Supra;

33 FMSHRG Page 188

Robinette, Supra

and Eastern Assoc. Coal Corp, Supra.

The Respondent presented evidence through Foreman Kennedy and dozer driver Joe
Vance that Belcher repeatedly drove over the safety berms causing great concern. Kennedy
testified as follows when questioned by Ms. Dailey:

Q. And did you have an incident or a time with Lonnie Belcher where you had to talk to
him about backing into berms?
A. Yes.
Q. Would you tell the judge what happened?
A. I was with Gerald Hess, we was dumping around the walls this way and with the
dozer pushing them this way so we were working the walls from both ends. And Gerald
Hess (sic) was in the truck backing up on the dump and he was backing up on the dump
and was backing up and putting his wheels over and Gerald Hess said, "you're scaring
me." And then I overheard the conversation so I went straight down to the area where the
men were working and rolled out on the dump and the dump looked good -went back to
where the men talked. It was Lonnie that was doing it. So I got Lonnie out of the truck
and talked to him about the berm. I said that's why we got a dump dozer there to push it
· over. And he said he was trying to get it before the dozer saving him from making trips
out there. And I said, well, you know, that's why we pay the dump dozer to be pushed
· over. Don't - I don't want you on the berms.

Q. Now, did you have a second opportunity to talk to Mr. Belcher about berms?
A. Ye,s, I did.
Q. Would you tell the judge what happened and how did that come about?
A. It was hauling in the holler field number 2 because the pond - we had a pond fill up
and we were trying cleaning out the pond back up with the dozer they call a dump hole to
dump the clean ones in so they can cover it up to get rid of the material ... It was Joe
Vance hollered at me, we need a pull cable that we got a truck stuck down here. So I got
the pull cable, went down there and seen where Lonnie backed over into the hole and I
talked to him again about the berms and I gathered the Bates contractors and I had three
Bates contractors right there. There was one Wellmore employee and I gathered all four
of them together and talked to them. I said, I don't want to see this right here no more.
The next time I'll send you off the hill to HR.
Q. What did you say to Mr. Belcher?

33 FMSHRC Page 189

A. I told him I didn't want to catch him on that berm. I asked him why he was backing
through the berm. He said he was throwing the mud over into the dump, but once again, I
told him, that's why we keep the dozers there to knock the dump down. That's his job.
Q. Did Mr. Belcher say anything about the berms during these conversations?
A. He said we wouldn't keep the berms, Joe Vance, my dump man says he couldn't keep
the berms for Lonnie riding them down.

Q. Did you have any conversation with Joe Vance about the berm?
A. Yes, I did.

Q. And what didyou learn from Joe Vance about the berms that day?
A. He told me that every time he pitches a good berm, the truck that Lonnie Belcher is
riding them down. He said he couldn't- he said I talked to him about the berms also. Feel
like we had problem at ... and Joe said that he was pitching benns, but every time he
pitched the berms, Lonnie wouJd,ride them down.
(TR 33-39.)

Joe Vance testified consistently with Mr. Kennedy about Belcher riding over the berms.
He testified as follows:
A. fu the back to the berm they was - I was down below where they were dumping. And I
was _fixing the road. They were checking the road and checking the berm itself too. And
when he backed around the road I was already doing (inaudible). And when I looked to
see him up there, he went through the berm. fustead of turning, he went through the berm.
Q. And did Mr. Belcher make any reply to Gerald Hess on the CB radio?
A. He said - Gerald said "excuse me" or said something to him and he said, "I know what
I'm doing and I ain't going through no berm."
Q. Would you tell the judge what the berms looked like that day?

A. They looked good all except where he went through it. It was four to five foot tall,
three of four foot wide across for the ride (inaudible).
Q. Were you there the day Mr. Belcher put the truck in the pond?

33 FMSHRC Page 190

A. Yes.

Q. Would you tell the judge what happened?
A. Okay. When we got up there where he'd backed up into it, he'd backed up on the
berm and it looked like he backed up on it and dumped his load. He backed up on it and
the truck just sit there on the road.
Q. Where was the swivel part of the articulating truck?

A. Sitting on the berm.
Q. And did Mr. Belcher say anything about why he backed into the berm or backed into
the pond?
A. He said there was no berm.
Q. Was that true?
A.No.
Q. And why do you believe that that wa'i not a true statement by Mr. Belcher?

A. Because he'd been on down in the mud over the berm but the berm wasn't holding up.
(TR65-66).
Dale Hibbitts also testified that on September 2nd when Belcher had his second accident, .
he was involved in towing the truck up the hill. Hibbitts testified that Belcher had driven over
berm on that date as well. When shown a photograph of the crash site, (R/SM #1, page 2),
Hibbitts identified the mound of earth bythe tires as what remained of the berm. (TR 92.)
After maintaining that there were no berms at any of the locations he was· admonished by
management for running down, Belcher admitted on cross-examination "I only talked to the mine
foreman one time about that I hit the berms. And that's all I talk:edto him." (TR 176.)
I credit the testimony of Kennedy, Vance and Hibbitts. They testified consistently with
one another giving detailed accounts of the events at issue which are corroborated by the physical
evidence. R/SM # 3, is Kennedy's notebook. Kennedy testified that as a matter of course, he
kept a daiiy log of events he felt noteworthy. An entry was made for period indicated as August
17, 2009 through August 21, 2009, which stated that Lonnie Belcher had backed through a berm
and put his truck in a hole and had to be pulled out. It was further noted that this was not the first
occasion on which Kennedy had trouble with Belcher driving over berms and that he had been

33 FMSHRC Page 191

told not to do it again or he would be sent off the hill. An entry was made on August 31, 2009
indicating Kennedy had a safety talk with his men about the berms and operating in a safe
manner. These entries are entirely consistent with Kennedy's and Vance's recounting of the
events leading up to September 2nd. Additionally, photographs were provided of the accident
scene on September 2 in which both Kennedy and Vance were able to identify the berm material
surrounding the wheels of the Volvo truck.
The accident on September 2, 2009 was the final event which led to management's
decision to remove Belcher from the North Fork mine. Mr. Belcher's version of the events as he
told Surface and Bates and MSHA, is that in the early afternoon hours, he was making a run with
his truck when he stalled out on the upper road where he was hauling material. He called out for
jumper cables to be brought to him and in the mean time, he latched the safety belt, engaged the
parking brake and attempted to start the truck when it lurched forward, bypassing the brakes, and
rolled down an adjacent hill where it came to rest with the cab turned over onto the driver's side.
He alleged that there was no berm to retard the truck's forward movement. He was pulled out of
the cab through the window.
Belcher claimed in his written statement to MSHA dated October 1, 2009, that he was
knocked unconscious and came to as Cledinger was pulling him out of the truck. All he could
remember was that he hurt his right rib cage. (Complainant's Exhibit C-1.) His second statement
of April 16, 2010, filed in response to Surface's Answer and adopted by him at the hearing as part
of his testimony, Belcher stated that it was a Surface employee who told him he was
unconscious. A Surface employee came running down the hill calling his name and a11 Belcher
could do was raise his right arm in response. He thought at the time his le.ft arm was broken.
Before he was helped out of the truck, he reached down to get his hard hat because a Surface
employee asked him where it was. He retrieved it and was then helped out of the tmck.
(Complainant's Exhibit C-2.)
This version of events is at odds with, and contradicted by, the physical evidence as well
as the testimony of those persons who responded to the scene and investigated the cause of the
accident. Both TracyCledinger, a miner of nine years, and Joe Vance, the dozer operator, were
on the scene immediately after Belcher's truck flipped over.
Cledinger testified that Belcher was conscious and was yelling for someone to gethim out
of the truck as he (Cledinger) was approaching the truck. (TR 107.) According to both Vance
and Cledinger, after they removed Belcher from the passenger side window of the cab, he was
standing to the side of the truck for a few minutes and he then crawled back inside of it for a few
minutes.and then climbed back outwithout assistance. Neither of them could see what he was
doing because he was fully inside the cab and out of sight. (TR 72-73, 103-104.)
With respect to the alleged malfunctioning of the parking brake, there was a great deal of
testimony offered in contradiction to Belcher's assertions. Surface mechanics testified that the
parking brake was set when the cable was hooked up to tow the truck up the hill. It was evident;

33 FMSHRC Page 192

however, that the brake was not engaged on this 35 ton truck when it went down the hill as the
four back wheels would have been locked up leaving visible skid marks in the dirt. Furthermore,
it would be impossible for the brakes to fail and then reset or function properly thereafter. John
Bennett superintendent for Surface with 26 years of experience as a mechanic explained as
follows:

Q. Now, did you have any problem with the wheels rolling up?
A. Yeah. There were on - the park brake was locking.
Q; Is it possible then when the park brake is set where it was on the hillside - not
on the hillside but on the No. 3 that's on the map there (indicating a photograph of
the upper haul road), is it possible if Mr. Belcher had truly had his park brake set
as he claims it was for the truck to have rolled over or through the berm and down
. to where the circle is on the map? (Referring to R/SM #2.)

A. No, ma'am.
Q. And why do you say that?
A. The park brake is only applied in pressure release. The park brake was fully
functional, no broke spring or anything and it- there was no way it would fix
itself. You know, for the truck to roll off, the park brake had to be released.

Q. Is it possible for the truck brake to have been off or broken and roJled - for the
truck to have rolled in the ditch as it did, to have landed with the cab turned over
and for the truck to have reset its brake itself?
A.· Not with the lever. But the brake if your air pressure bleeds off would set.
Q. In this instance, was the lever brake on?
A. Yeah, the lever was in the safe position.
Q. Have you ever had a situation where a truck brake failed and then for some reason set
themselves and began to work again after an accident?
A. None
(TR 120-126.)
. Dale Hibbitts, roving mechanic with 24 years of experience as a mechanic, confirmed the
assessment made by Bennett as well. He testified:

33 FMSHRC Page 193

Q. Did you have any problem pulling the truck - you said you righted the cab?
A. Yes.
Q. Did you have any problem then rolling the truck up the hill?
A. Once we got the truck back on its wheels with the help of an excavator and a dozer, we
hooked the dozer to the back of the truck and we proceeded to pull it back up over the hill
and the dozer would not pull the truck back there.
Q. And why was the truck or the dozer unable to simply roll the truck back up the hill?
A. All the rear wheels on it was scooting.
Q. Was scooting?
A. Yeah. Sliding.
Q. And did you do any more inspections of the truck then about the brake or anything
else?
A. Yeah. Well, we proceeded to check park brake, the service brake and actually checked
to see if the truck would start in gear.
Q. And would you tell the judge what you found out about the brake on the truck?
A. The park lever was in the set position at that time. And if you put the truck in any
gear other than neutral, it will not crank, or if the neutral switches out on the park brake
switch itself, itwill not crank.
Q. Did you test out the brake at all?
A. Actually, I drove the truck back out of the hole to see about the fuel load.
Q. And did you try the brakes while you were doing it?
A. Yes.
Q. And did you have any problem with the brakes at all?

A. No.
Q. If the park brake had been set on this truck as Mr. Belcher says it was, before it went

33 FMSHRC Page 194

over the - rolled over, would the tires have rolled ifthe park brake was set?
A. No, ma'am.
A. It would have had to slide on all four of the back tires went over the berm.
Q. And did you see any evidence of sliding or skidding?
A. No, not at that time I got there.
Q. Did you have to do anything with the brakes?
A. No, we didn't do anything with the brakes.

Q. Have there been any problems with.the brakes on that Volvo truck since then?
A. No, ma'am, not any problems with the brakes on the truck. None that's been reported
tome.
(TR 87-91.)
Joe Vance also confirmed the absence of skid marks at the scene and also added that ·in
his experience brakes will not fail and then reset themselves. (TR 74-75.) The cause of the truck
stalling out on the upper haul road was explained by TracyCledinger. From his .experience in
driving this Volvo A35C, he knows that the steering is hydraulic and if the driver puts the vehicle
into too tight a turn, it will cause a stall. (TR 110-112.) Bennett testified that he thoroughly
investigated the reported brake fire by pulling apart the brakes and found that there had not been
a fire. The br*es were fine. He explained that the smoke could be caused by operating the truck
at excessive speeds. (TR 95-96, 119.)
I find the assessment of the condition and :functionality of the brakes offered by Bennett
and Hibbitts credible. It is based upon their 50 years of collective experience as mechanics and
upon their thorough examination of the brakes immediately before and after the accident.
Additionally it is corroborated by the photographs taken at the scene in which skid or slide marks
are clearly absent. (R/SM #1pgs1-2.) I find Surface's theory of the case - that Belcher set the
park brake when he climbed back into the cab of the truck after being pulled out by Cledinger,
quite plausible. I also accept the explanation for the truck stalling on the haul road and the cause
of the smoking brakes as reasonable and consistent with Belcher's reckless disregard for the safe
operation of the truck.
I find Belcher to be less than credible based upon the many discrepancies in his written
statements and his testimony, as well as from the total lack of evidentiary support for his version
of the facts. Joe Vance, Tracy Cledinger, Jimmy Kennedy, and Dale Hibbitts were all present on

33 FMSHRC Page 195

the scene of the ·accident on September 2nd. While all four men saw that there was a berm
present on the upper road which Belcher drove through, and identified it in a photograph, only
Belcher seems not to have noticed a berm being present. (TR130, 103, 52, 91.) Moreover, there
was credible testimony from Kennedy and Vance that he had been counseled in the past for this
behavior. He had, in fact, put his truck in a pond on a previous occasion by running through a
berm. Only after hearing each of these witnesses testify did Belcher finally admit that he had
been counseled for hitting a berm "once."
He offered differing versions of the events of September 2nd with regard to whether it
was his right rib cage or left arm that was injured, whether he was conscious after the crash or
whether someone with Surface told him he was or whether he crawled back into the cab to
allegedly retrieve his hat or whether he retrieved it before he was pulled out of the truck.
(Complainant's Exhibits C-1 and C-2.)

In addition, Belcher denied on the stand that he had ever shown to anyone at Surface a
photograph he took on his cell phone of a truck he had crashed on another job site. (TR 17.)
Tracy Cledinger, however, testified that he and Belcher were talking one day and Belcher showed
him a picture on his cell phone of a truck turned over against a wall and said he had turned it
over. (TR 106.)
Belcher testified that he was promised a full time job with Surface by Tammy Fields,
Human Resources Manager, in August2009. Belcher's testimony was that he was working at a
full-time temporary job with another company when Fields called him about a job. She said it
would start on Monday with Bates and then immediately thereafter, he would be a permanent
employee with Surface. This testimony was contradicted by Fields who testified that Belcher
contacted her asking if there was any work available as he had lost his job. She informed him
that they did not have anything available. In early August, she called him and told him to contact
Bates becau;se they would be doing some temporary contract work for Surface and he might be
able to find work with them. (TR 134-135.)
On cross-examination Belcher stated that he had a great temporary job with another
company and would not have taken the job with Bates if he had known it was temporary. When
asked which company he had been working for that he would not have left, he was evasive and
responded "the company I worked for before I went to Wellmore." He went on to say he was
offered a truck driving job until something on the strip came open. When asked if Ms. Fields
actually said all of that to him, he admitted that she had not. Belcher insisted that he remembered
the conversation with Ms. Fields "as if it was yesterday" and that Ms. Fields told him he would·
be full time after 60 or 90 days but then he had to "admit that, I guess, I believe it was 60 days,
two months, that would be 60 days, I believe." Fields denied this entire conversation saying that
she would not have offered Belcher a full time job at any time because there was none available.
(TR 134-135, 171-173.) In fact, after the Bates contract ended in mid'--October, all but two of
Surface's employees were also laid off. (TR 141.)

33 FMSHRC Page 196

fu Belcher's written statement to MSHA of October 1, 2009, the relief he asked for from
the alleged discrimination was to be "temporarily reinstated." 4 (Complainant's Exhibit C-L)
This indicates that Belcher was well aware that his position was a temporary one and he had
never been promised a permanent job. However, he changed his version of the facts subsequent
to execution of that statement.
fu sum, I find the Respondent's position that Belcher repeatedly engaged in reckless
operation of his truck - disregarding berms and counseling froni his foreman, and causing two
accidents, one of which could have resulted in serious injuries to himself or others at the mine is fully supported by the testimony and physical evidence produced. The decision to take Belcher
off the job, as Foreman Kennedy said, was because he was "a liability risk' and "an unsafe
worker" who after being told right from wrong did not listen. {TR 43.) Robert Litton of the
Worker Safety and Human Resources department, who made the decision to take Belcher off the
job site, confinned that after reviewing Belcher's performance issues between mid-August and
September 2nd, they felt they had no need for him on the job. Backing over the berms was not
acceptable safety behavior at their mine site, he said. (TR 142.) Thus, I find that the Respondents
have proven by a preponderance of evidence that they would have removed Belcher solely for his
reckless operation of the vehicle coupled with his disregard for the safety of himself and others,
rather than for engaging in protected activity.

IV.

ORDER
Based upon the foregoing, the Complainant's discrimination claim is DISMISSED. .

p~
Priscilla M. Rae
Administrative Law Judge

4

Assuming arguendo that I found for Belcher, reinstatement would not be available as the job he held
was temporary. Robert Litton testified that his position was not filled after September 2, 2009, as the job
was nearly complete and the truck was no longer needed. Back pay would also be tolled as a result. See
Chadrivk Casebolt v. Falcon Coal Company, Inc., 6 FMSHRC 485 (Feb. 29 1984); and Secretary of
Labor on behalf ofRobert Gatlin v. Kenamerican Resources, Inc., 31 FMSHR I 050 (Oct. 8, 2009).
Furthermore, Belcher has been on workers compensation since the time of the accident and had not been
medically cleared by his physician to return to work.

33 FMSHRC Page 197

Distribution:
Lonnie Belcher, Jr., P.O. Box 422, Big Rock, VA 24603
AnnaM. Daily, Esq. Dinsmore & Shohl, LLP, P.O. Box 11887, Charleston, WV25339
Randal Scott May, Esq., Barret, Haynes, May & Carter, PSC, P.O. Drawer 1017, Hazard, KY
41702

33 FMSHRC Page 198

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021

January 10, 2011
DISCRIMINATION PROCEEDING

JUSTIN NAGEL,
Complainant

v.
NEWMONT USA LIMITED,
Respondent

Docket No. WEST 2010-464-DM
WEMD09-ll

Mine ID: 26-02512
Leeville Mine

DECISION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS
FOR FAILURE TO COMPLY WITH DISCOVERY ORDERS
AND LACK OF CANDOR WITH THE TRIBUNAL
Before: Judge McCarthy
This matter is before me upon a discrimination complaint filed by Justin Nagel
("Complainant") pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of
1977, as amended. Section 105(c)(l) of the Act prohibits operators from discharging or
otherwise discriminating against miners who have engaged in safety-related, protected activity.
A discrimination complaint under section 105(c)(3) of the Act may be filed by the complaining
miner if the Secretary, after investigation conducted pursuant to section I 05(c)(2) of the Act, has
determined that the provisions of section 105(c)(1) of the Act have not been violated. ·
Complainant Justin Nagel appears prose in this matter, as the Secretary of Labor decided not to
pursue Nagel',s discrimination allegations under section 105(c)(2).

I. Procedural Background
On October 27, 2010, I issued a Dismissal Order entitled, "Order Certifying futerlocutory
Discovery Ruling to the Commission; Order Granting Respondent's Motion to Dismiss for
Failure to Comply with Discovery Orders and Repeated Lack of Candor with Tribunal; Order
Staying Dismissal Pending Commission Ruling on Certified futerlocutory Discovery Order."
On November 23, 2010, the Commission issued Direction for Review and Order, which
considered the legal implications of my attempt to stay the October 27 Dismissal Order, and
whether to the address the issues set forth in Complainant Nagel's petitions for review of
discovery issues. Pursuant to Commission Rule 71, 29 C.F.R. § 2700.71, the Commission
limited their review of my Dismissal Order to the issue of whether I had the authority to stay the
effect of my decision. The Commission unanimously concluded that an Administrative Law
Judge did not authority to stay the effect of his or her decision. See Capitol Aggregates, Inc., 2
FMSHRC 1040, 1041 (May 1980); see also Sec. ofLabor on behalf ofPasula v. Consolidation

33 FMSHRC Page 199

Coal Co., 1 FMSHRC 25 (Apr. 1979) (neither the Mine Act nor the Commissions Interim Rules
of Procedure provide for a stay of the effective date of a judge's decision once the decision is
issued). Accordingly, the Commission vacated my Dismissal Order and remanded the case for
issuance of a final decision.
The Commission recognized that Complainant's petitions for discretionary review of my
discovery orders regarding the hiring of private security for his deposition and partially granting
Respondent Newmont's motion to compel production of audio tape recordings were in essence
petitions for interlocutory review under Rule 76. The Commission concluded that review of such
issues was not appropriate at this time since the Commission usually does not grant interlocutory
review of discovery orders. See e.g., Asarco, Inc., 14 FMSHRC 1323, 1328 (Aug. 1992) (''unless
there is a 'manifest abuse of discretion' on the part of a judge, discovery orders are not ordinarily
subject to interlocutory appellate review.") (citations omitted). Therefore, the Commission
denied both petitions. Similarly, the Commission, at footnote 3, denied Complainant Nagel's
November 19, 2010 petition for discretionary review of a related discovery order.
Finally, the Commission directed that once I issued a final decision on remand, a petition
for discretionary review of that decision may be filed within 30 days after issuance of the
decision or order, pursuant to section 113(d)(2)(A)(i) of the Mine Act, 30 U.S.C. §
823(d)(2)(A)(i), and the Commission's Procedural Rule 70(a), 29 C.F.R. § 2700.70(a). The
Commission noted that if Mr. Nagel files a petition for discretionary review within 30 days of my
revised decision, he may seek review on all the discovery issues raised.
I accept the Commission's Direction for Review and Order as the law of the case. On
remand, for the reasons provided in my initial order, as reiterated below, I hereby dismiss this
case effective immediately, without stay. Mr. Nagel is hereby placed on notice that he has 30 ·
days to file a petition for discretionary review of this·revised decision with the Conimission
pursuant to section 113(d)(2)(A)(i) of the Mine Act, 30 U.S.C. § 8.23(d)(2)(A)(i), and the
Commission's Procedural Rule 70(a), 29 C.F.R. § 2700. 70(a).
Once again, a detailed outline of the salient procedural motions and Administrative Law
Judge (ALJ) orders leading up to my dismissal of this proceeding is set forth below.

A.

The Complain( and Order to Answer

On January 5, 2010, Complainant Nagel filed a complaint of discrimination under section
105(c)(3) of the Federal Mine Safety and Health Act ofI977, as amended. On January 6 and
February 16, 2010, the Commission sent a letter requesting certain material from Complainant
before the case could be processed. More specifically, Complainant was requested to provide
proof that he had served Responded with a copy of his Complaint. On March 16,2010, Chief
Judge Lesnick issued an Order to Respondent to Answer the Complaint.

B.

Initial Order Denying Respondent's Motion to Dismiss
33 FMSHRC Page 200

On March 26, 2010, Respondent filed a Motion To Dismiss for failure to state a claim
upon which relief could be granted. On April 30, 2010, the Complainant filed a letter with the
Commission explaining his service of the Complaint and attaching as Exhibit A, a copy of an
audio recording of a meeting that Complainant had with Respondent's management
representatives Thayne Church, Monty Holland, and Mike Woodland concerning certain events
surrounding his termination on or about August 20, 2009. On May 28, 2010, Chief Judge
Lesnick issued an Order Denying Respondent's Motion to Dismiss.
On June 2, 2010, this discrimination proceeding was assigned to the undersigned. On
July 2, 2010, I issued a Pre-Hearing Order in this proceeding. Also on July 2, 2010, I issued an
Order Consolidating Cases and Denying Complainant Motion for Temporary Reinstatement.
On June 10, 2010, Respondent served its Answer on Complainant. 1

C.

Initial Conference Calls, Extension for Time to Procure Counsel, and Order
Confirming Discovery Schedule and Trial Dates

On August 3, 2010, I participated in a conference call with Mr. Nagel and Respondent's
counsel to discuss issues related to this matter, particularly Mr. Nagel's request for an extension
of time to obtain an attorney and file a pre-conference statement. His request for an extension of
time was granted during the conference call. At that time, Mr. Nagel indicated that he was ''very
close" to obtaining an attorney based on several referrals. Respondent's counsel indicated that
discovery from Mr. Nagel was due on August 16, 2010. Mr. Nagel indicated that he thought he
would have an attorney by that time. Accordingly, I scheduled another conference call for
August 17, 2010.
On Aq.gust 17, 2010, I participated in another conference call between Mr. Nagel and
counsel for Respondent. Mr. Nagel indicated that he had been unsuccessful in obtaining an
attorney to represent him in this matter despite contact with the referrals and with two state bar
associations. Nevertheless, he expressed confidence that he could obtain an attorney by August
31, 2010.. Otherwise, he assured this tribunal that he was prepared to proceed prose and
represent himself at trial, which was scheduled for October 25 and 26, 2010 in Elko, Nevada.
Respondent's counsel argued that Mr. Nagel's responses to discovery were inadequate and nonresponsive. Counsel further indicated that Respondent had been served with discovery requests
from Mr. Nagel. Based on the discussion at the conference call concerning the issues of legal
representation, outstanding discovery, and trial dates, I informed the parties that I would issue an
order codifying the parties' agreements and my instructions.
On August 19, 2010, I issued an Order Confirming Conference Call Agreements and

1

Upon inquiry from my office, Respondent filed its Answer with the Commission on
October 27, 2010.
33 FMSHRC Page 201

Discovery Schedule. That order set this matter for trial, as follows:
A conference call will be held on August 31, 2010 at 4:00 pm E.S.T. (2:00 pm
M.S.T., 1:00 pm P.S.T~) to discuss Mr. Nagel's continuing efforts at obtaining
counsel, the status of discovery, and any remaining pre-hearing issues related to this
matter.

Mr. Nagel has agreed to acquire legal representation by August 31, 2010, or to
continue to represent himself in this matter.
Mr. Nagel shall provide full and complete responses to Newmont's discovery
requests no later than September 14; 2010. Privileged information, and the names
of other miner witnesses, need not be disclosed at this time.
Newmont shall provide responses to Mr. Nagel's discovery requests no later than
September 21, 2010.
Newmont will take Mr. Nagel's deposition on September 28, 2010 in Spokane,
Washington [later changed to Elko; Nevada].
A hearing on the merits will take place in Elko, Nevada, on October 25-26, 2010 .. A
Notice of Hearing containing further details will be issued to the parties after the
August 31, 2010 conference call.
The parties are hereby ORDERED to comply with the above schedule and
agreements.

D.

Complainant's Inability to Procure Counsel
and Agreementto Proceed Pro Se

On August 31, 2010, I held a conference call with the parties. Complainant Nagel
indicated that despite his best efforts, he had been unable to obtain counsel in this matter and he
would represent himself.

E.

The Onslaught of Procedural Motions and ALJ Orders

On September 9, 2010, Respondent filed a Motion for Partial SummaryDecision or to
Strike or Limit Certain Claims. On September 22, 2010, Complainant Nagel filed a response.
On September 27, 2010, I issued an Order Conditionally Limiting Certain Claims and Granting
Partial Summary Judgment on certain claims. My Order specifically set forth the claims of
interference and discrimination at issue in this case.

On September 20, 2010, Complainant filed a Motion to Dismiss [Counsel] for Ethics

33 FMSHRC Page 202

Violations. On September 23, 2010, Complainant filed a Motion to [Amend] and Correct
Motion to Dismiss [Counsel] for Ethics Violations. On September 24, 2010, Counsel for
Respondent filed a Statement in Opposition to Complainant's Motion to Dismiss Patton Boggs
for Ethics Violation[ s]. On September 30, 2010, Complainant filed a Disciplinary Referral with
the Commission. On October 5, 2010, counsel for Respondent filed a Statemenfin Opposition to
Complainant's Disciplinary Referral.
During a conference call between the parties on September 24, 2010, Respondent
requested that they be allowed to hire private security for the scheduled September 28, 2010
deposition of Complainant, and that all participants in said deposition submit to a reasonable
search upon entry. I orally granted that request, as reasonable, to be followed up by written
Order. Said Order Granting Respondent's Request For Security issued on October 13, 2010. On
October 20, 2010, I issued an Order Denying [Complainant's] Motion to Require Respondent to
Reduce its Oral Motion for Security to Writing.
In the interim, on September 24, 2010, Respondent filed a Motion to Compel Production
of Recorded Conversations that Complainant had made with representatives of Newmont
management concerning discussions or meetings related to allegations of interference and
discrimination, as alleged in his· Complaint.
On September 28, 2010, Complainant was deposed by Counsel for Respondent. During
the deposition, counsel for Respondent asked Complainant how many tape recordings of
conversations Complainant had with Respondent's management about issues in this case.
Complainant answered that he thought that he had five tapes in his possession.
On October 5, 2010, Complainant filed a notarized Affidavit pursuant to Commission
Rule 80, requesting that I withdraw and recuse myself from hearing this matter on the grounds of
bias and impossibility for a fair trial.
On October 13, 2010, Complainant Nagel filed his Response to Newmont's Motion to
Compel Production of Recorded Conversations.
On October 14, 2010, Complainant Nagel filed a Motion for Partial Summary Judgment.
On October 14, 2010, Respondent filed its Opposition. On October 14, 2010, Complainant filed
a Response to the Opposition. On October 15 and 21, 2010, respectively, Complainant Nagel
filed Amendment to Partial Summary Judgment and [Second] Amendment to Partial Summary
Judgment, with 2008 employee handbook attached. As further set forth below, on October 21,
2010, I issued an Order Denying Complainant's Motion for Partial Summary Judgment.
In the interim, on October 15, 2010, Complainant served Respondent with a motion
entitled "Motion to Review Decision of Releasing the Number of Tapes and Strike from
Deposition Record." In his motion, Complainant states that he incorrectly stated the number of
tapes in his possession during his deposition in order to "protect the integrity of criminal

33 FMSHRC Page 203

investigation and any informants that may or may not be on audio recordings." This motion
eventually was filed with the Commission on October 21, 2010, although the motion had been
brought to my attention as Exhibit B to Respondent's Response to Complainant's Motion for
Continuance and Motion to Dismiss, discussed below. I denied Complainant's October 15
Motion in my October 22, 2010 Order Denying Motion to Strike Testimony From Depositio:o..·
Record.
Also on Friday, October 15, 2010, I convened a conference call with the parties to discuss
settlement prospects and any outstanding discovery matters. Respondent's counsel indicated that
Mr. Nagel had not provided Respondent with a copy of his affidavit motion that I recuse myself.
I informed the parties that my clerk would send Respondent a copy. My clerk did so.
Because I was concerned this prose Complainant had made one-party consent recordings
that may be illegal under Nevada law and implicated Fifth Amendment self-incrimination issues,
I further informed the parties that I had researched Nevada law and concluded that the act of
producing in-person recordings, which are legal in Nevada, raised no Fifth Amendment privilege
against self-incrimination. Accordingly, I ordered Nagel to produce all in-person recordings, but
not any telephone recordings, as the later appeared to be illegal under Nevada law (see Lane v.
Allstate Insurance Co., 969 P.2d 938 (Nev. 1998)), and the act of production itself implicated
self-incrimination concerns. I also ordered Nagel to provide answers to interrogatories 13 and
15. I infomied the parties that my written Order compelling discovery would issue on Monday,
October 18, 2010.
During the conference call on October 15, 2010, Mr. Nagel agreed to overnight copies of
the five audio recordings to Respondent's counsel for delivery on Monday, October 18, 2010.
Complainant Nagel assured the Court and Respondent that he would do so. Mr. Nagel further
agreed to provide answers to interrogatories 13 and 15 by said date. To preclude premature
disclosure of any potential miner witnesses under Commission Rule 62, the parties agreed to a
redaction procedure, which was incorporated into the terms of my Order compelling discovery.
On October 18, 2010, I issued my Order Partially Granting [Respondent's] Motion to
Compel Production of Recorded Conversations and Order Granting [Respondent's] Motion To
Compel Answers to futerrogatories 13 and 15. On October 18, 2010, I also issued an Order
Denying Complainant's Motion for Recusal.
On October 18, 2010, Complainant Nagel did not provide Respondent's counsel with
answers to futerrogatories 13 and 15 or provide Respondent's counsel with the in-person audio
recordings, as he had agreed to do during the conference call with the undersigned on October
15, 2010.
On October 19, 2010, Complainant Nagel filed a Motion for New Hearing Date. In his
motion, Complainant Nagel requested that the upcoming hearing in this matter, scheduled for
October 25-26, 2010 in Elko, Nevada, be postponed.

33 FMSHRC Page 204

F.

Respondent's Instant Motion to Dismiss

On October 19, 2010, Respondent filed a Response to Complainant's Motion for
Continuance and the instant Motion to Dismiss. Respondent opposed Com.plainant1s request that
the hearing be postponed and moved to dismiss this proceeding due to Mr. Nagel's repeated
failure to comply with my Orders pursuant to Commission Rule 59. Respondent argues that
Complainant has demonstrated a pattern of unwillingness to comply with direct orders from the
undersigned and is not likely to abide by my orders or Commission procedural rules in any future
proceeding, including the impending hearing, no matter when it may be scheduled. Because the
Complainant has demonstrated clear contempt of my direct orders and Commission rules,
Respondent argues that this discrimination proceeding should be dismissed.
More specifically, the Respondent argues that when a party refuses to comply with an
order directing the production of discoverable information, the Judge has the authority under
Commission Rule 59 to "make such orders with regard to the failure as are just and appropriate,
including ... dismissing the proceedings in favor of the party seeking discovery." Respondent
argues that Complainant has continually abused the discovery process and refused to abide by my
orders and Commission procedural rules. While the Respondent acknowledges that dismissal is
considered a harsh sanction, Respondent argues that Complainant has demonstrated that he
considers himself to be above the authority of this tribunal, and therefore un-sanctionable. As a
result, Respondent contends that any sanction short of dismissal is insufficient to remedy the
continual contempt that the Complainant has demonstrated for the authority of this tribunal and
Commission rules and procedures.

In its Motion to Dismiss, Respondent enumerates how the Complainant's alleged
contempt for ALJ authority is evidenced by the following instances of refusal to comply with
AU orders. i·set forth Respondent's specific arguments below:

1.-

Refusal to Respond to Interrogatories Despite [Judge] Orders

Respondent contends that the Complainant has refused to respond to
Respondent's interrogatories, despite four separate orders to do so. Respondent
notes that Newmont issued its interrogatories to Mr. Nagel on July 15, 2010.
Respondent states that after Mr. Nagel neglected to respond to two interrogatories,
Nos. 13 and 15, the ALJ required him to do so. The Respondent states that during
a conference call held on September 24, 2010, the ALJ issued his third order to Mr.
Nagel to respond to Respondent1s interrogatories Nos. 13 and 15. (See Ex. A,
attached to Respondent's Motion). Respondent further notes that on September 29,
2010, the Respondent e-mailed the Complainant, alerting him to the fact that his
ordered responses were still outstanding. Id. Respondent further notes that during
the conference call on October 15, 20 I 0, the ALJ issued, for the fourth time, an order
requiring the Complainant to provide the outstanding interrogatory responses. (See
Ex. B, attached to Respondent's Motion). Respondent asserts that as of October 19,

33 FMSHRC Page 205

2010, six days prior to trial, the Complainant has yet to respond to the ALJ's orders.
2..

Refusal to Comply with [ALJ] Order by
Untruthfully Responding to Deposition Questions

The Respondent argues that the Complainant refused to truthfully answer
deposition questions under oath because he disagreed with the ALJ's order to
· respond to the ·questions posed. Specifically, Respondent notes· that during his
deposition, Mr. Nagel was asked about the tape recordings that he made of
conversations with Newmont supervisors and management while he was employed
at Newmont. Respondent states that Mr. Nagel refused to answer questions
pertaining to those tapes. Respondent notes that pursuant to prior agreement, the
parties contacted the ALJ, who ordered that Mr. Nagel respond to the questions, and
Mr. Nagel provided answers during the deposition. (See Tr. 214:5-15, 217:1-10,
attached as Ex. C to Respondent's Motion). Respondent points out that subsequent
to the deposition, on October 15, 2010, Mr. Nagel moved to strike his deposition
testimony responsive to the questions at issue because he had not truthfully answered
the questions regarding the number of tape recordings that he has in his possession.
(See Ex. D, attached to Respondent's Motion). Respondent argues that Mr. Nagel
has taken the position that he was not required to give a truthful answer at deposition
because he disagreed with the ALJ order. Td.
Respondent argues that Mr. Nagel has likewise demonstrated contempt for
the discovery process and procedures by refusing to truthfully answer deposition
questions. Respondent argues that in his deposition testimony, Mr. Nagel
specifically stated, under oath, that he intended to call six miner-witnesses at trial.
(See Ex. C at Tr. 239:21-25, attached to Respondent's Motion). Respondent notes,
however, that in his recently filed pre-hearing statement,2 Mr. Nagel identifies nine
separate unnamed individuals as confidential miner witnesses. (See Ex. E, attached
to Respondent's Motion). Respondent states that in order for Newmont to
successfully prepare its case for trial, it has the right to depose Mr; Nagel's miner
witnesses within the 48 hours prior to trial. Since Mr. Nagel cannot truthfully
provide the number of.witnesses that Newmont is required to depose, Respondent
argues that it has been disadvantaged in its deposition scheduling and trial
preparation.

3.

Refusal to Comply with [ALJ] Order
to Produce Tape Recordings

2

Complainant Nagel did not file his pre-hearing statement with my office at the
Commission, he just served Respondent.
33 FMSHRC Page 206

Despite expressly agreeing to comply, Respondent argues that Complainant
has also refused to abide by my Order to produce the tape recordings that he made
ofconversations with Newmont management representatives. Respondent notes that
during the [October 15, 2010] conference call with the Court, the ALJ informed Mr.
Nagel that he was requiring Mr. Nagel to produce the tape recordings at issue. (See
Ex. F, attached to Respondent's Motion). Respondent states that during this call, Mr.
Nagel expressly agreed to have the tapes delivered overnight to Newmont's counsel
by Monday, October 18, 2010, which was exactly one week before trial. Respondent
further states that after the conference call, Mr. Nagel further indicated his
compliance with my order in e-mail correspondence with Newmont's counsel
regarding the manner of transcription of the tapes. (See Ex. G, attached to
Respondent's Motion).
Respondent confirms that on Monday, October 18, 2010, after the tapes did
not arrive in the morning delivery, Newmont's counsel contacted Mr. Nagel to
request the relevant delivery information and tracking numbers. (See Ex. H, attached
to Respondent's Motion). According to Respondent, after several hours, Mr. Nagel
responded, indicating that the tapes had not been sent because he is "Appealing the
Judges (sic) Decision to the Commission." Id. Respondent states that Newmont is
not aware that any appeal has been filed. 3
Respondent argues that this alleged instance of contempt is particularly
troubling given the short amount of time that Newmont was given to transcribe and
redact relevant information on the tapes priorto trial, which is scheduled for October
25 and 26, 2010. Respondent further argues that it is clear from Mr. Nagel's
·pre-hearing statement, filed on October 19, 2010, that he intends to use the tape
recordings, or evidence derived from the tape recordings, at trial. (See Ex. E,
attach~d to Respondent's Motion). By way of example, Respondent notes that the
first paragraph ofMr. Nagel's statement appears to have quotations derived from tape
·recordings, upon which Mr. Nagel intends to rely. (Id. "I don't care if you're
recording this.").
Respondent argues · that although the above illustrations by no means
represent an exhaustive list of the myriad examples of Mr. Nagel's contempt and
frustration ofjudicial authority, such instances demonstrate that Mr. Nagel has little
respect for, or intention of abiding by, the Judge's orders in this matter. Respondent
reiterates that Mr. Nagel has been issued repeated orders to comply with discovery,
and continually has agreed to comply with such orders in word, and then has flat-out
refused to comply. Respondent argues that Mr. Nagel has demonstrated that if he
does not agree with this tribunal, he is not bound by its authority, nor, apparently, is

3

As explained below, on October 25, 2010, Complainant Nagel filed "Petitions of
Discretionary Review, Order to produce recordings."
33 FMSHRC Page 207

he bound by the oath he took prior to the deposition. Consequently, Respondent
argues that Mr. Nagel has demonstrated that any sanctions issued to him for failure
to comply with the Judge's Order will' be. disregarded, ignored or overlooked.
Accordingly, Respondent argues that the only appropriate response to Mr. Nagel's
constant refusal to fairly participate in this proceeding is to dismiss the matter for
repeated failuresto complywith the Judge's orders.
Finally, Respondent states that despite Mr. Nagle's actions, Newmont is
prepared to go forward with the scheduled trial date. However, should the Judge
determine thata postponement is appropriate, Newmont asks that it be conditioned
as follows: First, that no further postponements be allowed, and second, that Mr.
Nagel be advised that any further failure to comply with Judge's Orders will result
in the dismissal of the case. In conclusion, Respondent argues that the ALJ should
deny Complainant's Request to Postpone the Hearing and grant the Respondent's
Motion to Dismiss.

G.

Pre-Hearing Statements, Additional Conference Calls,
and Additional Orders

On October 19, 2010, the parties filed their respective Pre-Hearing Statements.
On October 20, 2010, I convened a 90-minute conference call with the parties. I
indicated that I would issue an Order on October 21, 2010, Denying Complainant's
Motion for Continuance. I again ordered Mr. Nagel to comply with my discovery orders.
I indicated that my office had not received ,any Motion to Compel Discovery from Complainant Nagel. He indicated that perhaps he did not send my office a copy, just
Respondent. 4 Nevertheless, on the conference calJ, I went through each of the discovery
requests tha,t Mr. Nagel indicated that Respondent had not complied with,·and resolved
them, reserving the right to draw adverse inferences against Respondent at trial for any
non-production or failure to preserve evidence.

I also asked Mr. Nagel to explain what the five tapes involved. Mr. Nagel
explained that the tapes involved the following: a conversation that he had with
management representative Monty Holland and· Shane Eisenbarth concerning his reported
safety concern regarding alleged improper disposal of pressurized paint cans;. the
grievance meeting concerning his disciplinary warning for alleged failure to guard an
open hole at the waste breaker; the grievance meeting concerning his alleged failure to
receive proper training; a conversation he had with supervisor Gilbert Liguizmo~
concerning Respondent's alleged failure to give Nagel a pay upgrade; and a conversation

4

0n October 20, 2010, Respondent filed its Responses to Complainant's Motion to

Compel Discovery. To date, my office has received no Motion to Compel Discovery from
Complainant Nagel.
33 FMSHRCPage 208

he had with management representatives Mike Woodland, Thayne Church and-Monty
Holland concerning his alleged failure to water roads (the missing water truck incident),
which Respondent claims led in part to his termination on August 20, 2010.
Accordingly, these tapes concern events surrounding critical allegations of interference
and discrimination as alleged in Nagel's section 105(c)(3) complaint. See also my
September 27, 2010 Order Conditionally Limiting Certain Claims and Granting Partial
Summary Judgment, which described the allegations of interference and discrimination at
issue in this matter.
During the October 20, 2010 conference call, I informed the parties that
Complainant's Motion for Partial Summary Judgment, as amended, would be denied and
that an Order to that effect would issue the next day. As noted above, that Order issued
on October 21, 2010.
During that same conference call on October 20, 2010, Complainant Nagel again
agreed to tum over the tapes and overnight them to Respondent. As explained below, he
again reneged on this agreement the next day.
On October 21, 2010, I issued an Order Denying Complainant's Motion for
Continuance. I noted that the critical events at issue in this discrimination proceeding
were at least 14 months old and in some cases more than two years old. I further noted
that back on August 19, 2010, I issued an Order Confirming Conference Call Agreements
and Discovery Schedule. I found that the parties have had sufficient time to complete
discovery and prepare for trial. I then explained in detail, why I was denying each reason
advanced by Complainant for a continuance. After denying each one of Complainant's
reasons for a continuance, I concluded that further delay in this matter was contrary to the
public interest and the interests of all parties in a timely resolution of their dispute.
On October 21, 2010, I also issued an Order Denying [Complainant's] Motion to
Strike Testimony from Deposition Record.
On October 21, 2010, Complainant Nagel finally provided Respondent with
answers to futerrogatories 13 and·IS. He also provided Respondent with a list of miner
witnesses, since the parties were two business days before trial.
On October 21, 2010, I convened another conference call with the parties.
Respondent explained that Mr. Nagel again had refused to overnight the tapes as he had
agreed to do. Mr. Nagel explained that he was refusing to tum over the tapes because
was appealing my decision to the Commission. I explained to Complainant Nagel, as set
forth in my October 21, 2010 Order Denying Complainant's Motion for Continuance, that
interlocutory review is governed by Commission Rule 76~ and that any interlocutory
review by the. Commission, assuming that it is granted, shall not operate to suspend the
hearing, unless otherwise ordered by the Commission. Nevertheless, Mr. Nagel refused

33 FMSHRC Page 209

to comply with iny Order to turn over the audio tapes to Respondent because he was
appealing my Order to the Commission.

H.

The Orders to Show Cause Why Dismissal Is Not Appropriate for
Failure to Comply with Discovery Orders, Complainant's Submission
of Cause Not To Dismiss, and Respondent's Response To
Complainant's Reasons Not To Dismiss

Accordingly, during the conference call on October 21, 2010, Complainant was
ORDERED TO SHOW CAUSE by email to the Court and Respondent by noon E.S.T.
on October 22, 2010, why this proceeding should not be dismissed for failure to comply
with my discovery order to produce the audio tapes. A final conference call was
scheduled for noon E.S.T. on October 22, 2010~ My conference call Order to Show
Cause was followed up by written ORDER TO SHOW CAUSE WHY

DISCRIMINATION PROCEEDING SHOULD NOT BE DISMISSED FOR
FAILURE TO PRODUCE AUDIO TAPES CONCERNING ALLEGED ACTS OF
INTERFERENCE AND DISCRIMINATION AS ORDERED BY THE COURT.
By attachment to e-mail sent to the Court and Respondent at 6:39 E.S.T. on
Thursday, October 21, 2010, Complainant Nagel submitted his explanation for Cause Not
to Dismiss. He argued as follows:
Under 29 C .F.R 2700.56(e) states that discover must be completed 20 days prior to
the scheduled hearing date. For good cause shown the Judge may extend or shorten
· the time .of discovery. Both Newmont and I are still in discovery. On or about
October, 15 2010 Judge McCarthy ruled ofNewmont's Motion to compel recordings.
Under Commission Rule 2700. 70 Any person adversely affected by a Judge's
deci~ion or order may file with the Commission a petition for discretionary review
within 30 days of the decision or order. I have stated I'm pursing this option and rm
within 30 days. I have 30 days to appeal Judge McCarthy's decision. Judge
McCarthy stated something about rule 76 criminal procedure, this is civil court.
There is no 30 C.F.R 2700 as stated in the order for security. I know who the U.S.
Marshals and the Elko County Sheriff are. I have 30 days to ask the commissionto
review the order. There is a thin line between coercion and corruption. To the extent
that I wasted time with a Disciplinary referral, If the court would up hold it's laws I
wouldn't have to do their job for them.
Respectfully,
Justin Nagel 10-21-2010
Complainant Nagel failed to appear or participate in the fmal conference call with
the undersigned and Respondent at noon E.S;T. or 9 a.m .. Paci.fic time, on October 22,
2010. The undersigned and Respondent's outside and in-house counsel waited for Mr.
33 FMSHRC Page 210

Nagel to call in for twenty minutes and my office tried to reach him by phone leaving
voice messages, but received no response, until Monday, October 25, ·as set forth below.
Accordingly, at 1:45 p.m. E.S.T. on October 21, 2010, I sent the following email to the
parties:
Good afternoon gentlemen,
Complainant Justin Nagel did not appear for the conference call scheduled for 12
noon E.S. T. today. I have received Mr. Nagel' s response to my Order to Show Cause
why this matter should not be dismissed. Given Mr. Nagel' s refusal to turn over the
audio tapes concerning critical allegations ofinterference and discrimination alleged
in his complaint, I have concluded that Respondent cannot receive a fair hearing in
this matter. Accordingly, the hearing scheduled for October 25 and 26, 2010 in
Elko, Nevada is cancelled. My Order concerning Respondent's Motion to Dismiss
will issue by close of business on Monday, October 25, 2010. 5
On Saturday, October 23, 2010, counsel for Respondent sent the following email to the
my office and Complainant Nagel concerning the events of Friday, October 22, 2010.

Dear Judge McCarthy

to

I am writing to relay the Court the following information, which I believe
may be material to its ruling on Respondent's Motion to Dismiss. We have copied
Mr. Nagel on this email so that the parties and the Court do not engage in any ex
parte communications regarding potentially substantive information.
On Tuesday, October 19, my associate, Caroline Davidson-Hood, emailed
Mr. Nagel~ and copied the Court, informing him that we intended to hold depositions
of his minei: witnesses on Friday October 21, and that he may attend the depositions,
· ifhe so chose. On Wednesday October 20, Mr. Nagel responded to that email, noting
that the day and date didn't match, and asked on what day we would hold depositions.
My colleague noted the mistake and responded that depositions would be held on
Friday the 22nd of October. Aside from noting the mismatched day and date, Mr.
Nagel did not give any indication that he planned on attending the deposition. The
relevant email string is displayed below.

On Thursday October, 21, after Mr. Nagel had issued his list of miner
witnesses, after the Court had issued its Order to Show Cause Why not to Dismiss

5

Given the subsequent events and filings in this case discussed below, I notified the
parties by email on October 25 and 26, that my Order concerning Respondent's Motion to
Dismiss would not issue until Wednesday, October 27, 2010.
33 FMSHRC Page 211

the Case, and after the Court scheduled a conference call for all parties at 9:00am
Pacific Time [noon E.S.T.] October 22, Respondent determined that formal
depositions on Friday morning would be impractical, because the employees listed
as witnesses were members of a crew that would not be coming to work until Friday
evening, and therefore we could not serve any of the Newmont employees for
depositions until after the time had passed for the previously sch(:duled depositions.
Moreover, it appeared impractical to conduct depositions during a conference call
with the Court. which would determine the status of the hearing and the necessity to
conduct any depositions ·at all. Therefore, I decided that it was more efficient ~o
cancel the depositions and attempt to speak to the employees once they had arrived
at the mine on Friday night, if we needed to speak to them at all.
Because ofthe numbey of issues that had arisen, it was not until the afternoon
on Friday October 22, 2010, that my paralegal contacted the courthouse to cancel the
room reservation that we had made for depositions. At that time, the woman at the
courthouse stated that "the dark haired guy" that we deposed last time, had showed
up at the courthouse at 8:00 am for depositions and waited around until 9:00 am
before he left.
Newmont and its counsel would like to state for the record, that although we
did not inform Mr. Nagel that we would not be holding depositions on Friday
morning, we had no indication from him tha~ he intended to attend them. Moreover,
we had expected him to be a party on the conference call ori Friday, at which time
each party would be fully aware of · wheth.er the hearing, and therefore the
depositions, would go forward. As of this writing, the undersigned ha.S not received
any oral or written communication from Mr. Nagel regarding the events described
above.

If it is a fact that Mr. Nagel did go to the courthouse on Friday morning for
depositions, we regret if any miscommunicatiob.s caused hini any inconvenience.
However, we had no way of knowing that he would be there, not only because he
didn't inform us of his intention, but also because we expected that he would be
aware that depositions would not be held during a conference call scheduled with the
court, in which he was required to participate. Regardless of any possible
miscommunication regarding the depositions, Mr. Nagel was aware ofthe conference
call and simply failed to participate or notify the Court of the reasons for his failure.
In its last filing with the Court, Respondent noted that Mr. Nagel's failure to
appear at the October 22 conference call could, without more, constitute a ground for
dismissal of this matter. However, as we also pointed out in that filing, there are
numerous additional bases on which dismissal can, and should, be based in this
matter.

33 FMSHRCPage 212

Should the Court desire additional information regarding this matter, Ms.
Davidson-Hood and I will be available for a conference all at the Court's
convenience.
Respectfully,
Mark N. Savit
Patton Boggs LLP
Counsel for Respondent
On Monday, October 25, 2010, during the preparation of this Order, the undersigned
received the following email from Complainant, with copy to Respondent's counsel.
I apoligize [sic] for missing the confrence [sic] call. I was at the court house [sic]
with the witnesses to be disposed [sic]. I left my call in information and was hoping
to obtain it from Mr. Savit at 8:00 am when the deposition was scheduled. Only
myself and the witnesses show up.
Respectfully, Justin Nagel
Shortly, thereafter, I received the following email from Respondent's counsel, with copy
to Complainant Nagel.
Judge McCarthy,
Justto make sure the record contains all pertinent information, we did not notice any
witnesses for deposition, so no witnesses would have been there unless Mr. Nagel
broughtthem with him. The court employee who gave us the information has told us
that he, appeared to be there by himself We can check further if the court wishes.
Respectfully,
Mark N. Savit
Patton Boggs LLP
Also on Monday afternoon E.S.T., the undersigned received Newmont's Response to
Complainant's Reasons Not to Dismiss. In essence, Respondent again moves to dismiss this
matter under the Court's broad authority to manage the course of the proceedings under
Commission Rules. See e.g., Rules 55, 56, 59, 66, and 80. Respondent's arguments reemphasize Complainant Nagel's continual lack of candor to the Court and repeated refusal to
comply with direct orders to turn over the tapes; Respondent further argues that Complainant's
asserted justification in response to the Order to Show Cause, i.e., that he is unwilling to comply
· with :my orders to produce the tapes because he has filed an appeal of said orders with the
Commission, is procedurally improper under Commission Procedural Rule 76 governing
interlocutory review. Respondent points out that Complainant Nagel has neither submitted a

33 FMSHRCPage 213

motion to the Judge seeking certification of his interlocutory appeal on the discovery order to
produce the tapes, nor has the judge certified that appeal upon his own motion. Thus,
Respondent argues that Complainant Nagel's direct appeal to the Commission has not met any of
the requirements laid out in Rule 76, and is procedurally improper in direct violation of
Commission rules of procedure.
Respondent further argues that even if Complainant Nagel had properly applied to the
Commission for interlocutory review, he was still obligated to comply with the direct order of the
court to tum over the tapes. Respondent notes, as the Judge previously advised Complainant,
that Rule 76(a)(2) expressly states that, "(i]nterlocutory review by the Commission shall not
operate to suspend the hearing unless otherwise ordered by the Commission." Since the
Commission has issued no order suspending proceedings, Respondent argues that Nagel had a
duty to release the tapes so that Respondent could prepare for the scheduled hearing date.
Respondent argues that as result of Complainant Nagel' s failure to do so, the Respondent has
been -prejudiced and proceeding with the hearing has been rendered impractical.
Further, Respondent argues that even if Complainant Nagel properly sought certification
of this matter for interlocutory review, said certification would have been properly denied by the
Judge and the Commission because it presented a routine issue of discovery as to whether tapes
should be produced before trial, and therefore was not of sufficient weight and importance to
interrupt the normal course of the proceeding in order to appeal for a decision of the
Commission. Respondent relies on Commission precedent holding that interlocutory review is
not appropriate where the issue has been determined in a prior Commission decision or the issue
is not a controlling question oflaw. See United States Steel Mining Co., 16 FMSHRC 1043
(May 1994);Northwestern Resources Co., 22 FMSHRC 255 (Feb. 2000). Respondent notes that
the tapes have been deemed. non-privileged and relevant by the Judge, and Commission rules
state that all relevant; non-privileged evidence is admissible; See Rule 63; cf Rule 56(b)
governing scope of discovery. Respondent further notes that Nagel has refused to produce the
tapes because he believes that they may be relevant for some potential, future, criminal
proceeding against Respondent in support of charges that have not yet been filed. Respondent
argues that such tangential and irrelevant justifications do not trump the well-established
Commission rule that non-privileged relevant evidence is admissible. Thus, Respondent argues
that the question of law governing the admissibility of the relevant evidence is well-established
and it is neither a controlling qµestion in this matter, nor will it immediately materially advance
this proceeding~
fu sum, Respondent argues that this case should be dismissed for Complainant Nagel' s
continuing lack of honesty and candor, his failure to participate in relevant proceedings, and his
gamesmanship in causing delay and waste in order to garner more time to prepare for trial.
Respondent emphasizes that Nagel has not only refused to follow procedural rules and the direct
order of the ALJ, but his continuing and constant misrepresentations demonstrate that no amount
of delay or relief short of dismissal is appropriate. Accordingly, Respondent requests dismissal
for Complainant's continual misconduct.

33 FMSHRC Page 214

I.

Complainant's Petitions For Discretionary Review

On October 25, 2010, Complainant Nagel filed Petitions for Discretionary Review, Order
to produce recordings, with attached exhibits. It is confusing, rambling, and at times
incomprehensible. Despite Respondent's arguments to the contrary, consistent with my practice
of liberally construing the pleadings of this pro seComplainant, I treated it as a motion for
certification of my interlocutory discovery ruling to the Commission under Rule 76.
On October 26, 2010, Complainant Nagel filed another Petition for Discretionary Review
concerning my October 13, 2010 Order Granting Respondent's Request for Security. I declined
to certify that interlocutory ruling for interlocutory review as my Order did not materially
advance the final disposition of this proceeding, and has been rendered moot because the
deposition has already occurred.
On October 29, 2010, after my initial October 2 7, 2010 Dismissal Order issued,
Complainant Nagel sent the following email to myself and my clerk:

1. lii 2008 I was able to warn Elko Nevada resident and co-worker Rubin Garcia
in the presence of 4 witness at Newmont Mining of an attempt to murder him with
an approximate date and reported it to LAW ENFORCEMENT, not a security
guard, Lt. Trouten, Elko City Police.
1. While discussing the death of Rubin Garcia and how I obtained the
· information with LAW ENFORCEMENT, not a security guard, Trooper Perez of
the Nevada State Patrol I was able to Identify the Fort Hood, approximate date,
and rank of the offender.
3. fu 2009 I was able to Name the date, approximate location, of the BP oil
well break off as described to LAW ENFORCEMENT, not a security guard.
4. fu 2009 I was able to name the 2nd BP Oil well break off on Oct, 29 201 O at
1:36 PST to everyone on the futemet.
CRIMINAL LAW SUPERCEEDS CIVIL LAW
I'm not perfect but I run about 80%.
If I'm correct today the name Honorable Judge McCarthy will begin to be
synonymous with corruption, greed, and murder.
You have about a 20% chance of getting away. Good luck.
Sincerely, Justin Nagel 10/29/2010 10:00 AM PST

As noted above, on November 23, 2010, the Commission issued its Direction for Review
and Order in this matter.

33 FMSHRC Page 215

Most recently, on January 3, 2010, after remand from the Commission, Mr. Nagel filed a
·"Motion to Dismiss Newmont for failure to comply with discovery and destroying evidence."
On January 5, 2010, Mr. Nagel supplemented that motion with additional arguments and
exhibits. Mr. Nagel alleges that his August 17, 2009 discovery request and his October 12, 2009
motion to compel discovery (Exhibit B) sought his training file in an effort to show that hanging
a sign or installing a barricade at the breakers in not part of Respondent's training. Mr. Nagel
alleges that during an October 20, 2010 teleconference with Respondent's counsel and the
undersigned, he requested the investigation results that Newmont used to terminate him. He
alleges that Respondent's counsel stated that the investigation results had been destroyed, that
Respondent had no other records ofNagel's training other than those already provided, and that
the training department did not exist. Mr. Nagel argues that the requested evidence should have
been retained. Based on Newmont's alleged willful act of destroying evidence, Mr. Nagel
alleges that all arguments made by Respondent be dismissed and that judgment issue in his favor.
I deny Mr. Nagel's recent motion. There is no probative evidence that Respondent
destroyed evidence or withheld requested discovery of documents that in fact exist, and those
discovery issues and any adverse inferences that they may warrant, were addressed and resolved
during the October 20, 2010 conference call, explained above.

II. Order Granting Respondent's Motion to Dismiss
Commission Procedural Rule 59 provides that if a party fails to. comply with an order
compelling discovery, the Judge may make such orders as are just and appropriate, including
dismissing the proceeding in favor of the party seeking discovery. For good cause shown, the
Judge may excuse an objecting party from complying with the discovery request. 6
Commission Procedural Rule 66(a) requires that "[w]hen a party fails to comply with an
order of a Judge ... an order to show cause shall be directed to the party before the entry of any
order of default or dismissal."

6

Specifically, Commission Rule 59 provides, as follows:

§ 2700.59 Failure to cooperate in discovery; sanctions.
Upon the failure of any person, including a party, to respond to a discovery
request or upon an objection to. such a request, the party seeking discovery may
file a motion with the Judge requesting an order compelling discovery. If any
person, including a party, fails to comply with an order compelling discovery, the
Judge may make such orders with regard to the failure as are just and appropriate,
including deeming as established the matters sought to be discovered or
dismissing the proceeding in favor of the party seeking discovery. For good cause
shown the Judge may excuse an objecting party from complying with the request.

33 FMSHRC Page 216

As detailed above, on October 18, 2010, I issued my Order Partially Granting
[Respondent's] Motion to Compel Production of Recorded Conversations and Order Granting
[Respondent's) Motion To Compel Answers to Interrogatories 13 and 15. I cited Commission
Rule 59, thereby warning Complainant that failure to comply with my order compelling
discovery of the audio tapes may result in dismissal of his case. As further outlined above, I then
issued Orders to Show Cause why this proceeding should not be dismissed. Accordingly, the
procedural requirements for dismissal of this proceeding as a discovery sanction have been met.
Given the severity of the sanction, the issue remains whether dismissal is just and
appropriate, i.e., related to the particular claim at issue and not an abuse of discretion. See Keefer
v. Provident Life and Accident Insurance Co., 238 F. 3d 937 (8th Cir. 200l)(dismissal of action as
discovery sanction under Fed. R. Civ. P. 37(b)(2)(A) was not abuse of discretion given order
compelling discovery, willful violation of that order, and prejudice to other party); see also
Ladien v. Astrachan, 128F.3d 1051 (71h Cir. 1977) (dismissal of case as sanction under Fed. R.
Civ. P. 37(b)(2)(A) for repeated discovery violations not abuse of discretion). Based on the
totality of circumstances, I find that dismissal is just and appropriate· here as a sanction for
Complainant's repeated failure to comply with discovery Orders and lack of candor with the
tribunal, which has interfered substantially with a fair hearing in this matter, unduly burdened the
record, and caused additional work, delay, and expense through refusal to comply with discovery
Orders and Commission rules.
In determining whether dismissal is a just sanction for a party's failure to obey a
discovery order under Fed. R. Civ. P. 37(b)(2)(A), district courts generally consider the following
factors: the culpability of the non-complying party;. the degree of actual prejudice to the party
seeking discovery; the amount of interference with the judicial process; whether the noncomplying party was warned in advance that dismissal would be a likely sanction for
noncompliance; and the efficacy of lesser sanctions. See e.g., EB! Securities Corporation, Inc. v.
Hamouth, 219 F.R.D. 642, 647 (D. Colo.) citing Ehrenhaus v. Reynolds, 965 F.2d 916, 920-21
(l01h Cir. 1992).
Applying these factors, I find that Complainant's noncompliance with my discovery·
orders was repeated and deliberate. Complainant repeatedly failed to respond to two of
Respondent's interrogatories until two business days before trial, despite being ordered on
several occasions to do so. Complainant admitted in his motion to strike deposition testimony
that he incorrectly stated the number of tapes in his possession during his deposition. Most
importantly, however, Complainant refused to comply with multiple discovery orders to produce
the tape recordings, despite promising to do so, thereby demonstrating forthright lack of candor
with this tribunal.
Specifically, during the October 15, 2010 conference call, I explained the basis for my
impending October 18 Order compelling discovery of the tapes. I ordered Complainant to
provide copies of the tapes to Respondent by overnight mail for morning delivery on October 18,

33 FMSHRC Page 217

2010. Complainant agreed to do so and the parties agreed to a redaction procedure for the names
of miner witnesses. Complainant then broke his promise to this tribunal and Respondent.
Complainant was served with my written Order to compel production of the recorded
conversations on October 18, 2010. Complainant did not produce the tapes. During a
subsequent conference call on October 20, 2010, I again.ordered Complainant to provide copies
of the tapes to Respondent by overnight mail. Complainant again promised this tribunal and
Respondent that he would do so. Complainant again breached his promise.
On the October 21, 2010 conference call, Complainant Nagel stated that he was refusing
to comply with my Order to turn over the audio tapes to Respondent because he was appealing
my Order to the Commission. In doing so, Complainant Nagel failed to comply with
Commission Rule 79 governing interlocutory review of my discovery orders, even though he was
informed of this rule and further informed that the Commission's grant of such review shall not
operate to suspend the hearing, unless otherwise ordered by the Commission. Nevertheless, Mr.
Nagel persisted in his -refusal to turn over the tapes. Moreover, he failed to participate in the final
conference call before trial.
There is no doubt on this recor_d, that the tapes withheld from discovery relate to events
that comprise the gravamen of Complainant's allegations of interference and unlawful discipline,
suspension and termination. In fact, during the October 20, 2010 conference call, Mr. Nagel
acknowledged that the tapes involved the following critical events relative to his pro~ected
activity and allegations of interference and discrimination: a conversation that,he had with
management representatives Monty Holland and Shane Eisenbarth concerning his reported safety
concern regarding alleged improper disposal of pressurized paint cans; the grievance meeting
concerning his disciplinary warning for alleged failure to guard an open hole at the waste
breaker; the grievance meeting concerning his alleged failure to.receive proper training; a
conversatio11·he had with supervisor Gilbert Liguizmo concerning Respondent's alleged failure to
give Nagel a pay upgrade; and a conversation he had with management representatives Mike
Woodland, Thayne Church and Monty Holland concerning his alleged failure to water roads (the
missing water truck incident), which Respondent claims Jed, in part, to his suspension and
termination.
Since the tapes concern events surrounding critical allegations of interference and
discrimination as alleged in Nagel's section 10,5(c)(3) complaint,! find that Respondent would
be prejudiced significantly by not having an opportunity to review the tapes before trial and
adjust its defense strategy or settlement posture accordingly. As set forth in my October 18, 201 O
Order Partially Granting [Respondent's] Motion to Compel Production of Recorded
Conversations and Order Granting [Respondent's] Motion To Compel Answers to Interrogatories
13 and 15, the Commission's discovery rules are construed liberally to permit wide-ranging
discovery of all information reasonably calculated to lead to the discovery of admissible
evidence, but discoverable information need not be admissible at trial. Thus, a request for
discovery should be considered relevant if there is any possibility that information sought may be

33FMSHRCPage 218

relevant to the subject matter of the action and discovery should ordinarily be allowed unless it is
clear that information sought can have no possible bearing upon subject matter of action, or it is
protected by privilege. See e.g., Billy Brannon v. Panther Mining, LLC, 31 FMSHRC 717 (May
2009) (ALJ Barbour) (granting motion to compel audiotapes of mine conversations involving the
complainant and other miners made during the time frame of the alleged discrimination).
That standard is clearly met here. Respondent was prejudiced in the preparation of its
defense and evaluation of settlement, particularly given the number of tapes at issue and their
nexus to critical allegations of interference and discrimination alleged in the Complaint.
Furthennore, Complainant's repeated disregard of my discovery orders to tum over the tapes
interfered with the judicial process, necessitating cancellation of the hearing to ensure a fair trial
for Respondent.
It also cannot be overlooked, that the Court has bent over backwards to ensure that this
pro se Complainant could receive a fair trial, and has acted consistent with Supreme Court and
Commission precedent generally holding the pleadings ofpro se litigants to less stringent
standards than pleadings drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972) (prose litigant's complaint held to less stringent standards than complaint drafted by
attorneys); Tony M Stanley, emp. by Mgt. Consultants, Inc., 24 FMSHRC 144, 145 n.1 (Feb.
2001) (same); Marin v. Asarco, Inc., 14FMSHRC1269, 1273 (Aug. 1992)(Commission
recognized that courts generally consider the special circumstanc·es of litigants untutored in the
law).

Consistent with this precedent, the undersigned granted Complainant an extension of time
to procure counsel after the Secretary decided that his Complaints (09-06 and 09-11) lacked
merit. When Complainant was unable to retain counsel, t.lie Court, consistent with Commission
precedent, pennitted Complainant to proceed pro se, which is his right under section 105(c )(3 ),
even though ~s case would have been best setved by legal counselor non-legal representative,
who could clearly articulate his position in timely and responsive pleadings that were properly
seived, and engage .in meaningful discovery and settlement negotiations. Cf Jaxun v. Asarco, 29
FMSHRC 616, 621 (Aug. 2007). The undersigned then broadly construed Complainant's
allegations in my September 27, 2010 Order Conditionally Limiting Certain Claims and Granting
Partial Summary Judgment on certain claims. The undersigned then examined Complainant's
acts ofrecording under Nevada law with an eye toward protecting any privilege against selfincrimination that may be implicated. See my October 18, 2010 Order Partially Granting
[Respondent's] Motion to Compel Production of Recorded Conversations and Order Granting
[Respondent's] Motion To Compel Answers to Interrogatories 13 and 15. Furthermore, as
outlined above, Complainant has on several occasions failed to properly file his motions with this
tribunal, however, I have treated his motions as properly filed. See e.g., my Order Denying
Motion to Strike Testimony from Deposition Record. Finally, over the objection of Respondent,
and consistent with my practice of liberally construing the pleadings of this prose Complainant, I
treated Complainant's "Petitions for Discretionary Review, Order to produce recordings," with
attached exhibits, as a motion for certification of my interlocutory discovery ruling to the

33 FMSHRCPage 219

Commission under Rule 76. The Commission agreed with such liberal construction, although
noting that interlocutory review was inappropriate.
Despite such liberal treatment of this prose litigant, there is a limit to how far this
tribunal can go, and Complainant exceeded that limit here, even though acting prose. The
Complainant's repeated refusals to comply with my discovery orders to tum over the tapes,
despite promising on numerous occasions that he would do so, placed Respondent at a significan1
disadvantage from unfair surprise and unnecessary expense during trial preparation, and took
away the possibility of a fair trial because the discoverable matter concerned the crux of
Complainant's case. Given the subject matter of the tapes, their number, and their nexus to the
critical allegations of unlawful interference, discipline, suspension, and termination, a lesser
sanction under Rule 59, i.e., deeming as established the matters sought to be discovered, would
strike at the heart of Complaint allegations in any event, thereby precluding both meaningful
relief sought by Complainant and a practical, fair trial for Respondent.
fu these circumstances, in the exercise of my discretion, I find that a lesser sanction
would have neither cured the prejudice to Respondent, deterred additional misconduct by
Complainant, nor provided ail effective or practical sanction. After all, courts are not constrained
to impose the least onerous sanction available, but exercise discretion to choose the most
appropriate sanction under the totality of circumstances. Keefer, 23 8 F .3d at 941. Given
Complainant Nagel' s repeated lack of candor and refusal to turn over the audio tapes concerning
critical allegations of interference and discrimination alleged in his Complaint, I concluded that
Respondent could not receive a fair hearing in this matter and I cancelled the hearing.
Finally, Complainant was warned in advance that dismissal would be a likely sanction for
continued noncompliance with my discovery orders to provide copies of the tapes, absent good
cause shown. As emphasized above, my October 18, 2010 written discovery Otder Partially
CJTanting [Respondent's] Motion to Compel Production of Recorded Conversations, specifically
cited Comffiission Rule 59, thereby warning Complainant that failure to comply with my order
compelling discovery may result in dismissal of his case. Thereafter, during conference calls on
October 18 and20, 2010, when Complainant Nagel promised to overnight the tapes and then
reneged on his agreement, Mr. Nagel was made aware that dismissal would be a likely sanction
for continued non-compliance. Thereafter, during the conference call on October 21, 2010, I
issued an oral Order to Show Cause why this proceeding should npt be dismissed. On October
22, 2010, I issued my written Order to Show Cause why this proceeding should not be dismissed
for failure to produce audio tapes concerning alleged acts of interference.and discrimination as
ordered by the Court. Accordingly, the procedural requirements for dismissal of this proceeding
as a discovery sanction were satisfied.
Thereafter, Complainant submitted his explanation for cause arguing that the parties were
still in discovery, that he had 30 days to appeal my Order compelling production of the tapes, and
that ifthe Court would uphold its laws, Complainant Nagel would not have to do the Court's job

33 FMSHRC Page 220

for it. Complainant Nagel then failed to participate in the final conference call with this tribunal.
Having carefully reviewed Complainant Nagel's submission, I find that his explanation
does not constitute good cause under Rule 59, which provides that for good cause shown, the
Judge may excuse an objecting party from complying with the discovery request. I find no good
cause to excuse Complainant Nagel from complying with the discovery request for the audio
tapes. First, contrary to his contentions, discovery has ended. Complainant has simply failed to
comply with my repeated rulings to tum over the tapes because he seeks review before the
Commission. Second, as Respondent correctly points out, Complainant inappropriately relies on
Rule 70 concerning petitions for discretionary review of final case disposition from the judge, as
opposed to petitioning under Rule 76 for interlocutory review of my discovery orders.
In sum, based on the totality of circumstances, dismissal is a just and appropriate sanction
for Complainant's repeated failure to comply with my discovery Orders and for his repeated lack
of candor with this tribunal, which has interfered with the judicial process and precluded
Respondent from obtaining a fair trial. Complainant's noncompliance with my discovery orders
was repeated and deliberate. Complainant repeatedly failed to respond to two of Respondent's
interrogatories until two business days before trial, despite being ordered on several occasions to
do so. In addition, Complainant admitted in his motion to strike deposition testimony that he
incorrectly stated the number of tapes in his possession. Most importantly, Complainant refused
to comply with multiple discovery orders to produce the tape recordings, despite repeatedly
promising to do so. His lack of candor with this tribunal was willful and deliberate. Since the
tapes concern events surrounding critical allegations of interference and discrimination alleged in
Complainant's section 105(c)(3) complaint, Respondent was prejudiced significantly by not
having an opportunity to review the tapes before trial and adjust its defense strategy or settlement
posture. Complainant's conduct interfered with the judicial process and forced cancellation of
the hearing._ Complainant was warned times in advance that dismissal would be a likely sanction
for bis repeated noncompliance with my discovery orders and failure to honor his agreements
with this tribunal and Respondent. Given the subject matter of the tapes, which strike at the core
of this case, lesser sanctions are inappropriate.
In light of the foregoing, IT IS ORDERED that Respondent's Motion to Dismiss is
hereby GRANTED and the case is DISMISSED. Complaint Nagel has 30 days to file his
petition for discretionary review pursuant to section l 13(d)(2)(A)(i) of the Mine Act, 30 U.S.C. §
823(d)(2)(A)(i), and the Commission's Procedural Rule 70(a), 29 C.F.R. § 2700.70(a), consistent
with the Commission's November 23, 2010 Direction for Review and Order.

11,,...., I', I\ c~

Thomas P. McC~
Administrative Law Judge

33 FMSHRC Page 221

Distribution:
Justin Nagel, P.O. Box 182, Rathdrum, ID 83858
Hillary N. Wilson, Esq., Newmont Mining, 1655 Mountain City Hwy., Elko, NV 89801
Donna Vetrano Pryor, Esq., Mark Savit, Esq., Patton Boggs LLP, 1801 California Street, Suite ·
4900, Denver, CO 80202
/cp

33 FMSHRC Page 222

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19TH STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5266/FAX 303-844-5268

January 10, 2011
CIVIL PENALTY PROCEEDINGS

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

Docket No. LAKE 2009-586
A.C. No. 12-02394-189223 VPX
Docket No. LAKE 2010-162
A.C. No. 12-02394-201219 VPX

v.

Mine: Oaktown Fuels Mine No. 1

BLANKENBERGER BROS., INC.,
Respondent

DECISION
Nadia Hafeez, Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado for the Petitioner
Joseph Hensley, Safety Director for Blankenberger Bros., Cynthiana, Indiana for Respondent.
Appearances:

Before:

Judge Miller

These cases are before me on petitions for assessment of civil penalty filed by the Secretary of
Labor, acting through the Mine Safety and Health Administration ("MSHA''), against
Blankenberger Bros., 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"). The case involves two
violations in Docket No. LAKE 2009-586 with a penalty of $724.00 and two violations in.
Docket No. LAKE 2010-162 with a $363.00 penalty. The citations were issued by MSHA under
section 104(a) of the Mine Act at the Oaktown Fuels Mine No. l. The parties presented
testimony and documentary evidence at the hearing held on December 2, 2010 in Evansville,
Indiana.

I. FINDINGS. OF FACT AND CONCLUSIONS OF LAW
Blankenberger Bros., Inc., ("Blankenberger".or "Respondent") is a contractor who builds slurry
ponds and lakes at various mines, including the Oaktown Fuels Mine No. 1 (the "Mine") located
in Cynthiana, Indiana. The Respondent agrees that it is subject to the jurisdiction of the Mine
Safety and Health Administration and that the Administrative Law Judge has jurisdiction to issue
this decision. (Tr. 5-6); Jt. Stip. 3, 4. In May and September of 2009, MSHA inspector Phillip
Herndon conducted regular inspections of the Mine and its contractor, Blankenberger. As a
result of the inspection, the four violations contested herein were issued. At hearing, the
Secretary and the Respondent agreed to resolve the issues as to one of the citations. The
33 FMSHRC Page 223

settlement agreement is incorporated below. Following the testimony and presentation of
evidence, a decision was issued on the record. The decision is set forth below includes necessary
edits.
A.

Docket No. LAKE 2009-586

This docket includes two citations, both issued by Phillip Herndon on May 19, 2009. Herndon
has been a mine inspector for four years and has 28 years total mining experience. As a result of
his inspection, he issued two citations, one of which is subject to a settlement agreement. The
second citation, discussed below, was issued for an alleged failure to shield a welding operation.

i.

Citation No. 8415385

The citation described the violation as follows:
Welding operations shall be shielded and the area shall be wellventilated. There was unshielded welding being performed by
Onyett Fabricating on the BBI Co. No. E32, Hitatchi excavator
located along the overland belt access road while work was being
performed in the immediate area by other contractors and mine
employees.
The standard cited by Herndon, 30 CFR § 77.408 provides that "[w]elding operations shall be
shielded and the area shall be well-ventilated." Herdon dete~ned that it was reasonably likely
that the violation would result in a serious injury, that the violation was significant and
substantial, that one employee was affected, and that the negligence was moderate. A civil
penalty in the amount of $362.00 has been proposed for this violatfon.
Herndon credibly testified that, while obsetVing the welder working on the bucket of the
equipment, he could see the welding flashes from his location. Moreover, the flashes could be
seen by those operating heavy equipment near the location where the welding activify was talcing
place. Blankenberger's welder testified that he was welding in the bucket and no·one was close
enough to him to suffer a flash burn or be blinded by the flash. I credit Hemdon's testimony and
find that the area was not properly shielded. The flash posed a hazard to equipment operators,
and any other individuals, that were nearby.
·
A significant and substantial 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 'l
Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).

33 FMSHRC Page 224

The Commission has explained that:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard--that is, a measure of
danger to safety--contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving
Mathies criteria).
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). I find that the facts of this
violation clearly lead to a finding that it was significant and substantial. First, as discussed both
above and below, the Respondent violated a mandatory standard when welding was done without
any shielding. Next, the safety hazard created by the violation, i.e., the bright flash created by the
welding activity, is reasonably likely to cause an injury by blinding, or temporarily blinding,
equipment operators or other individuals in the area. Finally, that injury will be serious.
The Commission and courts have observed that an experienced MSHA inspector's opinion that
a violation is significant and substantial 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, 135-136 (7th Cr. 1995).
[First,] citation number 841585 issued on May 19 .by Inspector
Herndon for a violation of77.408, Inspector Herndon testified
credibly that he observed a welder working on a bucket in an area
where the flash could be seen by people[.] ... [H]e counted at
least ten contractors in the area who could see the flash of light as
the welder was welding. There was no barricade, no blocking of
the light from anyone. Anyone could approach the welding
equipment and the welder and be subject to a flash burn ... or the
drivers on the roadway could see the flash, which would hinder
their ability to drive. The primary hazard here is the temporary
blinding of equipment drivers. They can see the flash up to 100
yards away, driving heavy equipment down a road nearby. There
were contractors working directly across the road, at around 50

33 FMSHRC Page 225

yards away. [The area where the welding was taking place] was
not blocked or fenced. It was easily accessible. I find that the
inspector has shown a violation of the standard. The operator
contends that because the welder was inside of the bucket that
shielding is not necessary. I don't find that argument to be
persuasive. As long as someone can approach the welding area or
it can be seen from any distance, it needs to be shielded, as the
standard requires. The inspector designated this as a significant
and substantial violation. I find that there is a violation and that
there is a measure of [danger to] safety to the other workers in the
area, particularly those who may be blinded by the flash while they
are driving or walking in the area[.] ... [In addition, there is] the
possibility that someone might get close and suffer ... a flash
·bum. Therefore, I agree· with Inspector Herndon that this is a
significant and substantial violation and I assess the penalty as
proposed by the Secretary.
(Tr. 52-53).

ii.

Citation No. 8415383

The citation describes a violation of 77.404(a) for an accumulation of oil on the excavator. The
operator has agreed. to withdraw its ~ontest and pay the otjginally proposed penalty of $362.00.

B.

Docket No. LAKE 2010-162

This docket includes two citations issued by Inspector Herndon in September of 2009.

i.

Citation No. 8421060

On September 3, 2009, Herndon issued a citation for a violation of 30 C.F.R. § 77.1605(k),
.which requires that "[b]erms or guards shall be provided on the. outer bank of elevated
roadways." The citation describes the violation as follows:

The sub soil storage pile located along the overland belt area was
not providedwith a berm along the elevated dumping area. The
area measured approximately 6 feet to 35 feet above the ground
and was inclined for a distance of approximately 300 feet. Tire
tracks were evident approximately 7 feet along the unconsolidated
edge. Haulage was. stopped immediately by the operator.
Herndon designated the violation as significant and substantial with one person affected, and
moderate negligence. A penalty of $263.00 has been proposed by the Secretary.
33 FMSHRC Page 226

Blankenberger objects to this violation and opines that berms are not needed in this area. The
Respondent provided photographs of a :finished reclamation area that shows more gentle slopes
than those observed by Herndon. Blankenberger asserts that it routinely builds this type of
reclamation area. Further, it argues that, while tractors and vehicles drive up and down the
slopes, the slopes are not roadways and there is no area where it could be reasonably expected
that a vehicle would go over the edge. I credit the testimony of Herndon and his observations on
the day of the inspection.
In U.S. Steel Corp. the Commission held that "the adequacy of a berm ... under section
77.1605(k) is to be measured against the standard of whether the berm ... is one a reasonably
prudent person familiar with all the facts, including those peculiar to the mining industry, would
have constructed to provide the protection intended by the standard." 5 FMSHRC 3, 5 (Jan.
1983). MSHA generally requires an adequate berm to be at least 50% ofthe height ofthe wheel,
i.e., mid-axle height, of the largest vehicle to travel the roadway. I find that a reasonably prudent
person familiar with the mining industry and the protective purposes of the standard at issue
would have recognized that the safety standard required a berm that was at least mid-axle height
of the vehicles that traveled along and dumped on this elevated roadway.
For the next citation issued September 3, 2009 by Inspector
Herndon, citation number 8421060, cited for an elevated roadway
that did not have berms. This particular standard requires that
berms or guard shall be provided on the outer bank of elevated
roadways. Inspector Herndon credibly testified that this was
indeed an elevated roadway, that articulated dump trucks used it
regularly, as did scrapers and other equipment. He also indicated
that he measured the roadway to be 35 feet above the other grade,
, and it went from 0 to 35 feet, which is[, by definition,] an elevated
roadway ... [and therefore] is required to have a berm. He also
testified that these trucks were driving in an unconsolidated [soil]
area, [with a] four to one slope, with cracks that were visible,
making this a [particularly] hazardous area for someone to ... back
up and dump. I find that this is an elevated roadway, that it is
required to be bermed and that the inspector has credibly testified
as to all the facts in his citation and the violation is affirmed. The
inspector also indicated that this was a significant and substantial
violation. It is certainly something that inspectors, as he indicated,
hear and see [frequently] in fatalgrams that someone has gone over
the edge either backing up or driving on an elevated roadway, and
those accidents do result often in fatalities, especially in big
equipment. I understand that the operator indicates that he does
not believe there is any danger of overturning in this, that the
articulated trucks go up and down, as do the scrapers, and he
33 FMSHRC Page 227

disagrees that this is a roadway. I find that it is a roadway and that
it is a danger and a hazard. The storage piles for dirt do have a
drop off, as the inspector testified to. ·There is. a ... [reasonable
likelihood] of a vehicle overturning, and if it does, it would result
in a fatal accident. Therefore, I find the violation to be significant
and substantial and the penalty as proposed by the Secretary is
affirmed.
(Tr. 53-54).

ii.

Citation No. 8421067

On September 9, 2009, Herndon issued a citation to Blankenberger for an alleged violation of
30 CFR §77 .1605(d) which requires that "[m ]obile equipment shall be provided with audible
warning devices. Lights shall be provided on both ends when required." The citation alleges that
"[a] Blankenburger (sic) Bros. Inc. contracted articulated dump truck, Co. No. MAl 1, located in
operation at the spoil storage area was not provided with operational head lamps." The operator
agrees that the headlights were not working but argues that they do not need to be operational
because the truck is not used at night and, therefore, the lights are not required.
Herndon designated the violation as unlikely to result in an injury with moderate negligence. A
penalty of$100.00 is proposed.
Finally, as to the last citation [8421067] issued September 9, 2009
by Inspector Herndon for a violation that requires all mobile
equipment shall have lights .. Lights shall be provided on both ends
when required. The operator indicates that he does not believe that
lights are required and therefore a violation did not occur.
However, ... the operator is confusing using the lights with being
required. Any piece of mobile equipment that comes with
headlights is intended to have headlights . . . . [This vehicle was]
available for use at all times of the day; including during stormy
weather, early in the morning, later in the evening, when lights are
necessary. This piece of equipment, this dump truck, was·required
to have lights. Those lights are required to be maintained, and they
are required to work at all times. Therefore, I find a violation as
indicated by the inspector. ·He designated this as non S&S, and I
affirm the penalty that's been proposed by the Secretary in this
case.
(Tr. 54-55).

33 FMSHRC Page 228

II. PENALTY
The principles governing the authority of Commission administrative law judges to assess civil
penalties de novo for violations of the Mine Act are well established. Section l IO(i) of the Mine
Act delegates to the Commission and its judges the authority to assess all civil penalties provided
in [the] Act. 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the
Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it
intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29
C.F.R. § 2700.28. The Act requires that "[i]n assessing civil monetary penalties, the
Commission [ALJ] shall consider" the six statutory penalty criteria:
[1] the operator's history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator's ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.
30 u.s.c. 820(i).
I accept the stipulation of the parties that the penalties proposed are appropriate to this
operator's size and ability to continue in business and that the violations were abated in good
faith. The history shows the past violations at this mine, including citations for the standards
discussed above. The size of the operator is large. I have discussed the negligence and gravity
associated with each citation above and I accept the designations as set forth in each citation. I
assess the following penalties:

Citation No. 8415385
Citation No. 8415383
Citation No. 8421060
Citation No. 8421067
Total:

$
362.00
$
362.00
$
263.00'
$
100.00
$ 1,087.00

33 FMSHRC Page 229

II.ORDER
Based on the criteria in section 110(1) of the Mine Act, 30 U.S.C.§820(1), I assess the penalties
listed above for a total penalty of$1,087.00. BlankenbergerBros. Inc., is hereby ORDERED to
pay the Secretary of Labor the sum of$1,087.00 within 30 days of the date of this decision.

'\\C\~\i\~
M~~~ A. Miller. . \_

.

Administrative Law Judge

Distribution: (Certified U.S. First Class Mail)
Nadia Hafeez, Esq., Office of the Solicitor, U.S.· Department of Labor, 1999 Broadway, Suite 800,.
Denver, CO 80202

Joseph Hen8ley, Safety Director, Blankenberger Brothers, Inc., 11700 Water Tank Rd.,
Cynthiana, IN 47612-9528

33 FMSHRC Page 230

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
72119th STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5266/FAX 303-844-5268

January 13, 2011
CIVIL PENALTY PROCEEDINGS

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

Docket No. LAKE 2009-513
A.C. No. 12-02316-186352

v.

Docket No. LAKE 2009-631
A.C. No. 12-02316-192274

TRIAD UNDERGROUND MINING, LLC,
Respondent.

Mine: Freelandville Underground

DECISION
Appearances:

Matthew Linton, Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado for the Petitioner
John Williams, Rajkovich, Williams, Kilpatrick & True, PLLC,
Lexington, Kentucky, for Respondent.

Before:

Judge Miller

These cases are before me on petitions for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration ("MSHA"), against Triad
Underground Mining, LLC, 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 two
violations in Docket No. LAKE 2009-513 with a total proposed penalty of$54,518.00 and three
violations in Docket No. LAKE 2009-631 with a total proposed penalty of $12,924.00. The
citations were issued by MSHA under section 104(a) of the Mine Act at the Freelandville
Underground Mine. The parties presented testimony and documentary evidence at the hearing
held on October 26, 2010 in Evansville, fudiana.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Triad Underground Mining, LLC, ("Triad" or "Respondent") is the owner and operator of
the Freelandville Underground Mine (the "Mine") located in Knox County, Indiana. The
Respondent agrees that it is subject to the jurisdiction of the Mine Safety and Health
Administration and that the Administrative Law Judge has jurisdiction to issue this decision.
33 FMSHRC Page 231

Stip 1-4. In April and June of2009, MSHA inspectors conducted a regular inspection and spot
inspections of the Mine. As a result of the inspections, the five violations contested herein were
issued. At hearing, one citation was modified and the mine operator agreed to resolve the issues
as to two of the citations. The settlement agreement is incorporated below.
A. Docket No. LAKE 2009-513

i. Citation Nos. 8415816 and 8415820
a.

The Violations

This docket includes two citations, both issued by Inspector Glen Fishback on April 15,
2009. Fishback has been a mine inspector since 2007. He had 25 years mining experience prior
to joining MSHA, and currently holds a number of certifications in mining. Fishback described
the Freelandville Mine, located in Freelandville, Indiana, as an underground coal mine that uses
the room and pillar method of mining. (Tr. 16-17). He has inspected the Mine a number of
times and explained that a regular inspection normally takes about a month and half to complete.
The Mine is subject to spot inspections due to the amount of methane that it liberates.
On April 15, 2009, Fishback traveled to the Mine to conduct a spot inspection, followed by
a regular inspection. He was accompanied during the inspection by Mine's safety director, Sam
McCord, and an MSHA inspector trainee. As a result of his inspection, Fishback issued two
citations for failure to have directional markers on the lifeline in the primary escapeway.
A map of the Mine, submitted as Gov. Ex. 9, shows the primary escapeway where the
lifeline was placed. The portal is shown on the lower right comer of the map, the working
section in the upper right comer, and the green line is the primary escapeway. The working
section is approximately four miles from the portal and, hence, the lifeline stretches for about
four miles along the primary escapeway, while a second lifeline is in the secondary escapeway.
The Mine utilizes a blowing ventilation system where all incoming air travels from the portal to
the active section; Fishback was traveling the air course and examining the ventilation when he
observed the alleged violations.
The two citations are identical in that they allege violations of the same mandatory standard
and allege facts that are similar, i.e. that directional cones on the lifeline were missing for
lengths of up to 300 feet. In each instance, Fishback believed that the Mine reused the lifeline
by tying it together and failed to determine if the directional cones were properly in place once
the line was reconnected.
Citation No. 8415816 describes the violation as follows:
The 2nd West panel primary escapeway lifeline was not equipped
with directional indicators signifying the route of escape, placed at
intervals not exceeding 100 feet. This hazard was observed
between crosscut number 12 to crosscut number I 7, approximately.
33 FMSHRC Page 232

300 feet, between crosscut number 17 to crosscut number 19 Yz
approximately 150 feet and from crosscut number 19 Yz to
crosscut number 23 approximately 150 feet.
Fishback determined that it was reasonably likely that the violation would result in a fatal
injury, that the violation was significant and substantial, that thirteen employees were affected,
and that the negligence was high. A civil penalty in the amount of $27,259.00 has been
proposed for this violation. The Respondent does not dispute the facts as set forth by Fishback
in both his narrative and his testimony as they apply to the violation; i.e. that the directional
cones were not in place on the lifeline. Triad does dispute the findings of gravity and
negligence. Triad Br. 2-3.
Citation No. 8415820 describes the violation as follows:
The 1st Main North off the Main West Number 2 primary
escapeway lifeline was not equipped with directional indicators
signifying the route of escape, placed at intervals not to exceeding
(sic) 100 feet. This hazard was observed between crosscut number
23 to crosscut number 28, a distance of approximately 300 feet and
from crosscut number 10 to crosscut number 13 a distance of
approximately 150 feet.
Fishback determined that it was reasonably likely that the violations would result in a fatal
injury, that the violation was significant and substantial, that thirteen employees were affected,
and that the negligence was high. A civil penalty in the amount of$27,259.00 has been
proposed for this violation. Again, the. Respondent does not dispute the underlying facts of the
violation and agrees that the cones were not inplace. Triad does dispute the negligence and
gravity of the violation. Triad Br. 2-3 . .
The citations were both issued for a violation of 30 C.F.R. §75.380(d)(7)(v) which states as
follows:
Each escapeway shall be... [p]rovided with a continuous, durable
directional lifeline or equivalent device that shall be ... [e]quipped
with one directional indicator cone securely attached to the lifeline,
signifying the route of escape, placed at intervals not exceeding
100 feet. Cones shall be installed so that the tapered section points
inby[.]
Fishback testified as to the facts of the alleged violations as set forth in each of the
citations. The directional cones were placed at intervals exceeding 100 feet. fu Citation No.
8415816, he found cones missing for intervals of 150 feet in two areas, and missing for 300feet
in another area. In Citation No. 8415820, he found cones missing for intervals of 150 and 300
feet. Citation No. 8415820 was issued for violations found two hours after, and in an area

33 FMSHRC Page 233

distinctly different from, the violations that were the subject of Citation No.8415816. (Tr. 21-23,
31-33).
Sam McCord, the safety director for the Mine, has been in mining since 1995, and is
involved in training miners on the correct use of the escapeways at the Mine. He testified that
this is a one unit mine with 13 men normally working on the section. According to McCord, it is
roughly four miles from the portal to the working area, and the lifeline is roughly four miles in
length. McCord observed the area addressed in Citation No. 8415816 and agrees that the cones
were missing in that area. McCord did not observe the area addressed in Citation No. 8415820
and there is some disagreement about the exact location where the alleged violations existed.
However, McCord does not dispute the lack of directional cones in both areas. Both Fishback
and McCord testified that the mine operator reuses the lifeline by reconnecting the ends of the
line with a knot, as opposed to using or adding a new line. As a result, the cones are often
moved during reconnecting of the lifeline. Fishback saw nothing on the ground to indicate that
directional cones had properly been in place but had fallen to the ground.
There is little, if any dispute, that the directional cones were missing. The standard clearly
requires the cones to be located at a minimum of every 100 feet along the lifeline, which they
were not. The violation is obvious. I conclude that the Secretary has met her burden and affirm
the violation in each of the two citations.
b.

Significant and Substantial Violation

A significant and substantial 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: ( 1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard--that is, a measure of
danger to safety--contributed to by the violation;· (3) a reasonable
likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be
of a reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA; 52 F.3d 133, 135 (7th Cir. 1999); 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).
33 FMSHRC Page 234

The Commission and courts have observed that an experienced MSHA inspector's opinion
that a violation is significant and substantial 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, 135-136 (7th Cr. 1995). Inspector Fishback qualifies, without question, as
an experienced MSHA inspector. He described the violation as significant and substantial and
explained that, in the event a fire or other emergency were to occur at the Mine, the lack of the
directional cones would likely lead to a serious injury. The reasoning and testimony is identical
for both violations.
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). I find that the facts of this
violation clearly lead to a finding that it was a significant and substantial violation. First, as
discussed above, both violations as described in the citations are affirmed. Next, the safety .
hazard created by the violations, i.e., the inability to safely follow along the primary escapeway
in the event of an emergency, will result in an injury to a number of miners. And finally, that
injury will be serious.
Fishback testified that it is reasonably likely that a substantial injury would occur due to the
number and types of hazards in the area cited. He has cited the Respondent numerous times for
float dust, the presence of ignition sources, and low air quantities. He has also issued citations
for accumulations, both on equipment and in along the belt, and, in some instances, the .
.. .
accumulations existed for great distances. Fishback explained that the working section is·fultof
electrical equipment and many other possible sources of ignition. (Tr. 23-25).
Were a fire to· break out, it is likely that the ventilation system would be breached and, the ..
primary escapeway would fill with smoke or gas, leaving the lifeline as the only means to assist·: . .
in directing the miners out of the Mine. Miners often become disoriented in smoke and :dust and
don't recall which direction to travel. A miner maypa,nic and take off in a different.and
.··
dangerous directiOn. Miners are expected to be tied together as they travel the escapeway. If
one miner tied to a group becomes disoriented, he could lead the entire group in the wrong
direction. Pursuant to the facts of this case, a disoriented miner could potentially lead a group of
miners up to 300 feet in the wrong direction, and then have to turn around and travel back the · .
300 feet to the next directional cone. Time is precious in an emergency, and having to travel an
extra 600 feet would substantially affect the safety of the miners. Fishback explained that when
miners panic, they often forget what is learned in training. This is especially true when there is
little to no visibility and it is critical to find a quick route out of the mine. There were at least 13
miners on the working section. In addition, there were more miners working in other areas of
the Mine who would be required to use the escapeway and the lifeline to evacuate the Mine.
Triad argues that it is unlikely that there will be an explosion or other event at the Mine that
would necessitate the use of the primary escapeway. Even if there were such a need, the miners
are well trained on the escape protocol and the missing directional cones would not hinder their
quick escape. Hence, the Respondent argues that the violations are not S&S.

33 FMSHRC Page 235

I first address the issue of the likelihood of an explosion, fire or other emergency. There
are a number of mandatory standards that are designed to protect miners in the event of an
emergency~ Among those standards are the escapeway regulations and, as pertinent to this
analysis, the requirement that lifelines be installed and directional cones be placed on those
lifelines. I agree with the. Secretary that, for purposes of the S&S analysis, this regulation must
be evaluated in terms of an emergency, i.e. assume that an emergency will occur and evaluate
the likelihood of a reasonably serious injury in that context. To do otherwise would mean that
all emergency regulations would rarely be found to be S&S, which would be "inherently
illogical" and inconsistent with the Mine Act. See Consolidation Coal Co. 824 F.2d 1071, 1086
(D.C. Cir; 1987). In order to properly evaluate the S&S designation of the missing cones on the
lifeline, I conclude that I may assume the existence of an accident or emergency. However, I do
not find such assumption necessary in this case.
The Commission has long held that a S&S designation must be based on the particular facts
surrounding the violation, and viewed in the context of continued mining operations. Texasgu.lf,
Inc., 10 FMSHRC 498 (Apr. 1988); US. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug.
1985). Thus, I address the likelihood of an emergency and, within the context of that
emergency, whether the lack of directional cones for up to 300 feet creates a reasonable
likelihood that the hazard will result in a serious injury. McCord described the emergency
training that miners received at the Mine. Every 90 days there is a fire drill at the Mine and the
management reviews the location of SCSRs and the lifelines. The miners are reminded where to
meet in the event of an emergency and are instructed that no one is to be left behind. The miners
meet at a predetermined location and; if they must walk out of the Mine, they tether together and
calmly walk the escapeway using the lifeline and its directional cones to determine the correct
route of escape. (Tr.77-80). The cones, depicted in Triad Exs. E and G, can dislodge from their
location on the lifeline and slide down the line. In addition; the cones can be completely
dislodged from the lifeline and fall to the mine floor, especially during the rock dusting process.
(Tr. 80). McCord believes that if any injury were to be sustained, it .would not be fatal given the
type of employees at the Mine and the training they receive. He has a lot of confidence in the
men and the training and argues that a few missing cones "are not going to detei: them." (Tr.
87). According to McCord, the miners will know which direction to travel by feeling the air
movement. However, while miners may be trained on procedure during an emergency, it does
· not take away. from the fact that a fire or explosion could potentiallyoccur, nor does it
definitively determine what actions any miner will take when that explosion occurs.
Fishback addressed the likelihood of an accident or explosion when he testified that he has
cited the Mine many times for extensive accumulations, including accumulations of coal dust
and float coal dust. Fishback tookinto account the number of ignition sources:he has found
during his inspections and the number of ventilation issues, including low air .quantities in some
areas. Assuming the continued course of mining, the fact that this is considered a gassy mine,
and the previous violations, I am persuaded that an emergency is reasonably likely to occur.
Once an emergency is established, the record supports a finding that the lack of directional
cones on the lifeline in the escapeway is likely to lead to a serious injury. First, Fishback
testified that there is no certainty that in an emergency the ventilation will stay intact and further,
33 FMSHRC Page 236

if it is breached, it will cause added confusion about the direction of travel. Even well-trained · ·
miners panic in an emergency. The lack of directional cones will only add to the panic.
Fishback explained that, based upon his experience and what has been learned in the mining
industry over the years, when an emergency occurs a miner who is lost and disoriented may lose
his life if he cannot hold onto a lifeline and quickly fmd his way out of a mine. Missing cones
will further disorient the miner and waste precious time that needs to be spent trying to exit the
mine. Even worse, a miner may be tied together with other miners and lead them in the opposite
direction of safe escape. Each miner is different. Some may have medical problems, others may
panic more readily, while some may lose their sense of direction easily. Rapidly finding their
way through a mine during an emergency is difficult. The escapeway may be filled with smoke
and fumes. Further, it is difficult to see the route when wearing a SCSR, and traveling along an
uneven terrain filled with holes and water doesn't make it any easier. Time is important in an
emergency or disaster. Fishback opines that, if miners are led in the wrong direction, there is a
possibility that their SCSR would be exhausted by the time they realize their mistake, turn
around, and reach the next station.
I credit the testimony of Fishback in determining that the violations are S&S. He correctly
pointed out that the behavior of miners in an emergency is a large part of the process of an
orderly escape. Not all miners can be counted on to avoid panic and disorientation. The hazard
created by the missing cones on the lifeline is not being able to quickly and safely escape the
Mine no matter what condition a miner may be in. The hazard will result in a fatality of one or
potentially all of the miners in the area. I find that the Secretary has established that both lifeline
violations are S&S.

c.

Negligence

Fishback determined that both of the violations regarding the directional cones on the
lifeline were the result of high negligence on the part of the operator. He based his
·determination on his belief that, due to the extent of the condition, the condition should have
been discovered by the examiner and corrected. Further, nothing was noted in the inspection
report, although it appeared to Fishback that the condition had existed for some time. Fishback
believes that the reuse of the lifeline is the heart of the problem. The lifeline was retied and was
not checked for missing cones along its length. Fishback testified that correcting the problem
was simple and should have been done before the inspector arrived.
·
Fishback's negligence analysis relies heavily on the lack of any entry about the missing ·
cones in the examiners' record book. In his inspection notes, he indicates that the examiner last
entered a note about the lifeline on 4/13/09, i.e. three weeks before the violations were found by
Fishback. Therefore, Fishback believes that the condition existed for the entire three weeks
before his inspection, but had not been noted in the mine books. Further, he also relied upon his
determination that the cones had been missing for weeks since he saw no cones on the ground,
and no fallen roof material or other evidence that the cones had recently been knocked out of
place or off the lifeline. McCord disagrees with Fishback and testified that the lifeline is
examined in its entirety every week when the weekly escapeway examination is conducted. The
lines are also examined each time they are moved or retied. McCord reviewed the examination
33 FMSHRC Page 237

books for the escapeway and saw no record of any hazard or missing cones. (Tr. 86). Therefore,
McCord assumes that the cones were not missing when the line was last inspected, and there was
no need for an entry in the examination book.

I find that the Secretary has not demonstrated that the negligence was anything more than
moderate in this circumstance. Fishback did not see any entry in the examiners books, and only
assumed that the condition existed from the time of the last examination entry in the books.
While the ground under the lifeline did not indicate that the cones had fallen recently, McCord
credibly testified that the condition did not exist at the time of the last examination. The
Secretary has notmet her burden of demonstrating that the Respondent kne.w of the missing
cones· and failed to replace them, or that the mine examiner had observed the missing cones and
failed to record the condition in the book. I find the negligence to.be moderate and, therefore,
adjust the penalty to reflect the lower negligence.
Finally, Triad argues that Fishback should not have issued two citations for a violation of
the identical standard. I find that Fishback was justified in doing so. He found the violations in
two separate and distinct areas, and determined that a number of cones were missing in each
area. He grouped the violations that were in the same. general area, but when he came to a
second and somewhat distant area with more missing cones, he was well within his discretion to
issue the second violation of the same standard. If he were not .permitted to issue violations for
the same standard· during an inspection, it.would greatly curtail his enforcement ability.

B.

Docket No. LAKE 2009-631
i. Citation Nos. 8415898 and 8415899

At the hearing, the parties agreed to resolve two of the citations contained in this docket on
the following terms:

Citation No. 8415898: The parties agreed no modification is made to the citation but the
Secretary agre~s to reduce the proposed penalty from $7,578.00 to $6,062.00.
Citation No. 8415899: The parties agreed that the citation will remain as issued but the
Secretary agrees to modify the proposed penalty from $3,689.00 to $2,951.00.
ii. Citation No. 6682723
On June 18, 2009, inspector Charles Jones issued a citation to Triad for an alleged
violation of30 C.F.R. § 75.380(e) which requires that "[s]urface openings shall be adequately
protected to prevent surface fires, fumes, smoke, and flood water from entering the mine." The
citation states that "[t]he mine has experienced flood water entering into the underground
workings through the mine portals in the pit"

33FMSHRC Page 238

Jones determined that the violation was unlikely to result in an injury, that fifteen
employees were affected, and that the negligence was high. A civil penalty in the amount of
$1,657~00 has been proposed for this violation. For the reasons set forth below, I affirm the
violation and the finding of high negligence, and increase the proposed penalty based upon the
gravity of the violation.
Inspector Charles Jones has 42 years mining experience and was a mine inspector with
MSHA for 5 years before ending his career as a roof control specialist in the Vincennes district
office. He is currently an instructor at Vincennes University and holds a number of certifications
in mining. He visited the Freelandville mine many times prior to the inspection he conducted in
June of 2009.

On the day he issued the citation, Jones traveled to the Mine to follow up on a report of an
inundation of water. The Mine is required to report such an incident within 15 minutes of its
occurrence. Jones was assigned to investigate the emergency. Prior to leaving the MSHA office
he had a discussion with the assistant district manager who informed him that the Mine had been
put on notice the month before this incident about the importance of controlling the water
entering through the portals. When Jones arrived at the Mine, he observed that the "mine was
not adequately protected" because both portals had been flooded.
The morning of the incident, there had been heavy rain storms in the area which, in turn,
caused flooding and flood water to enter into the portal entrances. When Jones arrived the ·
power was off and the water was deep enough that Jones could not enter either portal. Water
traveled from the surface into the underground area of the Mine as a result ofa breach in a ditch
and non-functional sumps and pumps. In Jones' view, the Mine was not adequatelypro~ected
since the water was not kept out of the Mine. As a result, he issued a citation for what he
determined was a violation of section 75.380(e). (Tr. 59-61). The Respondent agrees that the
portals were flooded. McCord testified that, on June 18~ 2009, the Mine, prior to the rain stom1;
lost power at 9:35 a.m. The miners were removed from the Mine beginning at 7:40 a.m. and
were out of the Mine when the torrential rain began. McCord stated that there were two storms,
the first of which dropped two and a quarter inches ofrain, and a second at 9:10 a.m. that
dropped an additional two inches of rain. The water began to run into the Mine around 8:45 a.m.
The Mine has two sump pumps at the portal. Due to the loss of power, neither sump pump was
operational. However, a diesel pump remained in operation but could not handle the flood of
water. The water ran over the sumps and into the portals. The portals became filled to the point
that they were impassable. (Tr 89-92).
The mandatory standard is clear that surface openings, i.e. the portals,. shall be adequately
protected to prevent flood water from entering the mine. Here, after the first rain, the flood
water entering the Mine made it impossible to enter or exit through the portals. The Secretary
argues that when flood water enters a mine in a quantity that makes a portal impassable there is
sufficient evidence that the portal is not adequately protected. The Respondent agrees that the
portals were flooded as described by the inspector but argues that there is no violation because
the regulation is silent on the meaning of "adequate protection" against the flood water. The
Respondent also argues that the plans in place to prevent the floodwater from entering the Mine
33 FMSHRC Page 239

are enough to satisfy the requirement of the regulation. The plan, identified as Triad Ex. I and
dated May 2002, was developed in response to a request by MSHA to explain what steps would
be taken to "prevent any future .flooding." The plan includes sumps and enlarged, cleaned
ditches .. ·There is also an undated plan, Triad Ex. K, that includes the pumps, the diesel pump,
and maintenance of ditches. Triad points out that MSHA did not require diesel pumps or a
generator (to be used in the event of power loss) in the initial plan. The Mine also has a plan for
notification in the event of rising water at the Mine entrance. Triad Ex. L.
I conclude that, .ilthough the plans are useful in setting forth the procedures for protecting
the portals from flooding, they do not substitute as a means to comply with the standard.
Implementing the plan, in the event it is a useful plan, may assist in protecting against.flooding.
However, in this case, the plan or plans were not able to be implemented since the pumps were
notworking and the ditch had been breached. Having a plan in place is oflittle value; and offers
little protection, when it does not work to keep the water from entering the mine.

The standard requires that portals be adequately protected against flood water. Adequate
protection includes making certain that the Mine is prepared, and adequate measures are in place
to prevent water from entering the portals to the extent found by Jones. Webster defines
"adequate" as "satisfactory or acceptable" and "protection" as an action: taken to "keep safe from
harm." In this case, the harm is the water in the portals that, due to its depth, will prevent the
miners from traveling out of the.Mine .. The acceptable way to keep the water out of the Mine is
to have functioning pumps, or other safety measures, that will prevent the water from entering
the portals 1n any situation, including large rain-generating storms. Jones expressed the
Secretary's position when he testified that, because the portals were flooded, there was notan ·
adequate means of keeping the water out, i.e ofprotecting the portals, I conclude th~tthe
Secretary's interpretation of the standard is reasonable and~ consequently, I find that the
Secretary has met her burden of proving the violation. The regulation is not ambiguous and, as
·such, the Secretary's interpretation of her own regulations is generally entitled to substantial
deference so long as it is reasonable and consistent with its purpose. Martin v. OSHA, 499 U.S.
144 (1991). I conclude that the interpretation of the regulation is based upon its plain meaning
and is reasonable:

In a similar case, a Commission Judge found a violation of §75.380(e) based on rising
water levels in an open strip pit. The water level threatened to inundate an adjacent underground
coal mine. The violation was determined to be S&S and resulted from "unwarrantable failure."
There the inspector testified that water and saturated mud had collected in the pit in front of the
portals and water was already flowing into the underground mine. Georges Colliers Inc., 20
FMSHRC 296 (Mar. 1998) (AU). The AU found that the water and mud that was beginning to
collect in front of the portals was enough to demonstrate that the portals were not adequately
protected from water. In addition, a non-functional pump did nothing to take away from the
AU's determination that a violation occurred, even with a plan in place.
Jones did not mark this violation as significant and substantial because, in his view, the
miners had already been removed from the Mine due to the power failure which occurred before
the Mine became flooded. All miners had been evacuated by the time Jones arrived but, had

33 FMSHRC Page 240

they not been brought out at that time, the water would have prevented them from leaving
through the portals and, consequently, they would have been trapped in the Mine. This Mine has
up and down rises and, as described by Jones, areas would fill with water to a point that miners
could not escape the Mine. The Mine, in this instance, was fortunate that the power outage
occurred far enough in advance of the storm that there was enough time to evacuate the Mine
prior to the water rising. Had the Mine not been evacuated earlier, the miners would have been
trapped due to the flooded portals. Therefore, I find the gravity of the violation, for purposes of
penalty, to be greater than that determined by Jones.
Finally, Jones designated the violation as high negligence. He understood that the Mine
had been put on notice just one month earlier as to the issue of flood waters inundating the
portals and the Respondent's failure to adequately control such from recurring. McCord agrees
that the Mine had a similar inundation the month before the citation issued by Jones-. After the
May inundation, the Respondent spoke to Mary Jo, the MSHA assistant district manager, and
she provided suggestions about how to deal with the water problem. However, McCord testified
that she didn't "insist" on anything after the incident in May. (Tr. 95). The Mine had a water
control plan in place in May 2002. However, there is no evidence that the plan was oJ:ianged, or
any additional precautions taken, after the portals flooded in May, i.e. just one month before the
incident at issue here. Therefore, I agree with Jones that the negligence of the operator is high.

In order to tenninate the citation, the Mine submitted a new plan in an effort to make _
c;ertain that the portals did not flood in the future. The new plan included the installation of
additional pumps, a generatorfor the pumps_ in the event power was lost, and cleaning oflJle _
sump and ditches. The plan also addressed the diversion ditch which was breached a.ud
contributed to the flood cited by Jones. The- fact that the assistant district manager did.not .
"insist" on these changes prior to the water inundation in Jline does not relieve the operator of its
responsibility to keep the portals free from water.
-

II. PENAl.. TY
The principles governing the authority of Commission administrative law judges to assess
civil penalties de novo for violations of the Mine Act are well established. Section llO(i) of the
Mine Act delegates to the Commission and its judges the authority to assess all civil penalties
provided in [the] Act. 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to
the Secretary. 30 U.S.C. 815(a), 820(a). Thus, when an operator notifies the Secretary that it
intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29
C.F.R. 2700.28. The Act requires, that Ain assessing civil monetary penalties, the Commission_
(ALJ] shall consider the six statutory penalty criteria:

[1] the operator's history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator's ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the
33 FMSHRC Page 241

person charged in attempting to achieve rapid compliance after
notification of a violation.
30 u.s.c. 820(i).

I accept the stipulation of the parties that the penalties proposed are appropriate to this
operator's size and ability to continue in business and that the violations were abated in good
faith. The history shows the past violations at the Mine, including citations for the standards
discussed above. The size of the operator is large. I have discussed the negligence and gravity
associated with each citation above, and I accept those designations for the three citations that
are subject to the settlement agreement. I assess the following penalties:

Citation No. 8415816
Citation No. 8415820
Citation No. 8415898
Citation No. 8415899
Citation No. 6682723

$ 22,000.00
$ 22,000.00
$ 6,062.00
$ 2,951.00
$ 2,000.00

. '

. III. ORDER ·

Based on the criteria in s.ection l lO(I) of the Mine Act, 30 U.S.C.§820(!), I assess the

of

penalties listed above for a total penalty $55;013.00. Triad Underground Mining LLC,. is
hereby· ORDERED to pay the Secretafy of Labor the sum of$55,013.00 within 30 days ofthedate of this decision.

Distribution: (Certified U.S. Mail)
Matthew Linton, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway
Suite 800. Denver, CO 80202
John Williams, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre
Circle, Suite 375, Lexington, Kentucky 40513

33 FMSHRC Page 242

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
Office of Administrative Law Judges
7 Parkway Center
·
875 Green Tree Road, Suite 290
Pittsburgh, PA 15220
Telephone: (412)920-7240 .
Fax: (412)928-8689

. January 20, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on behalf
of CHAD ALEX GREEN,
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 2010-535-D
Case No. BARB-CD-2010-01

Mine ID: 15-18182

v.
D & C MINING CORPORATION,
Respondent

Mine: D & C Mining Corporation

SECRETARY OF LABOR,
MlNE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on behalf
of WILLIAM DONNIE SMITH,
Complainant

DISCRIMINATION PROCEEDING

v.
D & C MINING CORPORATION,
Respondent

Docket No. KENT 2010-536-D
Case No. BARB-CD-2010-02

Mine ID: 15-18182
Mine: D & C Mining Corporation

DECISION
Appearances: Schean G. Belton, Esquire, Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the Petitioner
Wesley Addington, Esquire, of Whitesburg, Kentucky, and Tony Oppegard,
Esquire, of Lexington, Kentucky, for the Complainants, Chad Alex Green and
William Donnie Smith
Elsey A Harris ill, Esquire, of Norton, Virginia, for the Respondent
Before:

Judge Harner

33 FMSHRC Page 243

Statement of the Case

These cases are before me based upon Complaints and Amended Complaints1 of
discrimination filed by the Secretary of Labor ("Secretary''), alleging that Complainants Chad
Alex Green ("Green") and William Donnie Smith ("Smith") were discriminated against by D &
C Mining Corporation ("Respondent") 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"). The Complaints and Amended
Complaints specifically allege that employees Green and Smith were laid off on September 21,
2009, because they were engaged in protected activity under the Act. In its Answers, Respondent
denies any unlawful discrimination and asserts that the two employees voluntarily quit work.
Pursuant to notice, these cases were heard before me on November 3, 2010, in Big Stone Gap,
Virginia.

fu its Complaints and Amended Complaints, the Secretary seeks orders of reinstatement
for Green and Smith to their former or substantially similar jobs. At the time of the hearing, both
Green and Smith had been reinstated to their former jobs at Respondent. Smith was reinstated on
November 16, 2009, and Green was reinstated on January 6; 2010, following a settlement
reached at a temporary reinstatement hearing held before Judge Weisberger on January 5, 2010,
under the provisions of Section 105(c)(2). At the hearing before me, the parties stipulated to the
amount ofbackpay that is owed to the complainants if the Secre.tary's discrimination complaints
are upheld. It was agreed that Green's backpay is $13,303 and Smith's is $5,644, exclusive of
any interest.

LeKal Principles

Section 105(c) of the Act prohibits discrimination against miners for exercising any
protected right under the Act. Section 105(c)(1) provides:
No person shall discharge or in any manner discriminate against or cause to be discharged
or cause discrimination against or otherwise interfere with the exercise of the statutory
rights of any miner, representative of miners or applicant for employment in any coal or
other mine subject to this Act because such miner, representative of miners or applicant
for employment has filed or made a complaint under or related to this Act, including a
complaint notifying the operator or the operator's agent, or the representative of the
miners at the coal or other mine of an alleged danger or safety or health violation in a coal
or other mine, or because such miner, representative of miners or applicant for
employment is the subject of medical evaluations and potential transfer under a standard
published pursuant to section 101 or because such miner, representative of miners or
1

The Complaints were filed with the Commission on January 28, 2010. On February 18,
2010, the Secretary filed Amended Complaints with the Commission seeking to add civil
penalties of$10,000 in each of the cases. Respondent filed it Answers to the Amended
Complaints on February 23, 2010.

33 FMSHRC Page 244

applicant for employment has instituted or caused to be instituted any proceeding under
or related to this Act or has testified or is about to testify in any such proceeding, or
because of the exercise by such miner, representative of miners or applicant for
employment on behalf of himself or others of any statutory right afforded by this Act.
A complainant alleging discrimination under the Act establishes a prima facie case of
prohibited discrimination by presenting evidence 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. Secretary ofLabor on behalfofPasula v. Consolidation Coal, Co.,_2 FMSHRC
2786, 2799 (1980), rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663
F .2d 12112 (3rd Cir. 1981 ); Secretary ofLabor on behalf ofRobinette v. United Castle Coal Co.,
3 FMSHRC 803, 817-818 (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
protected activity. 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. Id. At 817; Pasula, 2 FMSHRC at 2799-2800; see also Eastern
Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987).
Where the operator is mistaken in his belief that the complainants engaged in protected
activity, the complainant establishes a prima facie case of prohibited discrimination by proving
that the operator suspected that the complainant engaged in protected activity and the adverse
action was motivated in any part by such suspicion. Elias Moses v. Whitley Development Corp.,
4 FMSHRC 1475, 1480(1982); Secretary ofLabor on behalfofMichael L. Price and Joe John
Vacha and United Mine Workers ofAmerica v. Jim Walter Resources, 24 FMSHRC 589, 592593 (2002)(ALJ). The operator may then rebut the prima facie case in the same manner as
described above.·.Elias Moses v. Whitley Development Corp., 4 FMSHRC 1475, 1480(1982).
Factors to be considered in assessing whether a prima facie case exists include the
operator's knowledge of the protected activity, hostility or "animus" towards the protected
activity, timing of the adverse action in relation to the protected activity, and disparate treatment.
Secretary ofLabor on behalfof Chacon v. Phelps Dodge Corporation, 2 FMSHRC 2508 (1981 ).

Chronolo1n7 ofEvents2
2

The facts herein are based on the record as a whole, which includes the official
transcript, and my careful observation of the witnesses throughout their testimony. In resolving
any conflicts in testimony, I have taken into consideration the interests of the witnesses, the
inherent probabilities in light of other events, corroboration or lack thereof, and consistencies or
inconsistencies with each witness' testimony and between the testimonies of witnesses. In
evaluating the testimony of each witness, I have relied specifically on his or her demeanor and
make my findings accordingly. I note that apart from considerations of demeanor, I have taken
33 FMSHRC Page 245

The Respondent operates an underground coal mine (Mine ID No. 15-18182}in Harlan
County, Kentucky, where Smith and Green were employed. 3 The mine operates with a first and
second shift producing coal and for approximately the last half of the second shift, maintenance
activities at the mine are carried out. At relevant times up to September 18, 2009, Smith was
employed as a beltman on the first shift by the Respondent, where he had worked since
September 2007. Green was employed by the Respondent for about six years and worked on the
second shift as a bridge operator and as an extra bolt man. Smith and Green are brothers-in-law,
as Greeri's wife (Angela) is Smith's sister. Smith and Green are also next door neighbors.

On Friday, September 18, 20094, the entire first shift (9-10 men), including Smith,
reported to work as usual. Between 11 a.m. and 1 p.m., water started leaking from around a seal
in the mine. This seal closed off an unused section of the mine where coal had been previously
mined. As is common when seals are used in mining operations, water and methane gas
accumulate behind the seal. · A purpose of the seal is to protect miners from these hazards. When
the water was detected, it began to rise quickly and the catch basin could not hold it.5 · First shift
foreman Darrell Middleton instructed everyone working to start pumping the water out. Smith
was instructed to watch the pump at the seal. Middleton left the mine and went to the office to
check the elevation on the mine maps as he was concerned that the water level would incr~ase
and run into the operating section of the mine, thereby trapping miners. Apparently he was
concerned that the sealed off area was at a higher grade than the active working area and water
could trap miners if that were the case.
Despite the employees' efforts, the water from behind the seal kept coming and the
pumps were not making any progress in decreasing the water level.6 At end of the first shift,
Smith and the other ,employees left the mine and when they got outside, Middleton was present
with the first shift employees and some of the second shift employees and he discussed with
them the seriousness of the water situation. During this discussion, Green was present as Smith
told him to be careful before Smith left the site and went home. At the hearing, Middleton
testified that Smith told him he was afraid of water and he would rather be laid off and that
into account the above-noted credibility considerations in all cases and any failure by me to detail
each of these is not to be deemed a failure on my part to have fully considered each witness'
testimony.
3

Although the Respondent also operates a surface mine at the same approximate location,
none of the facts herein relate to that part of the Respondent's mining operations.
4

All dates hereinafter refer to 2009, unless otherwise indicated..

5

When noticed, water had risen to within only 8-10 inches from the mine roof. Smith
testified that the height of the coal seam was 50-54 inches.
6

Mine Superintendent Barry Rogers attributed the water problem to the unusually heavy
rainfall in the area in mid-2009.

33 FMSHRC Page 246

Middleton told Smith that he was afraid of water too. 7 When Green reported for work on the
second shift, Middleton told him there was a water issue and it was a "mess". When Green asked
Middleton how much water was in the mine, Middleton replied that it was just about "roofed
out". This conversation occurred in the office as Middleton was trying to reach Mine
Superintendent Rogers to apprise him of the situation. 8 Green stayed around until management
decided its course of action and then elected to go home as his father was ill and he needed to
help his mother. At the time Green left to go home, none of the second shift employees had gone
to work yet. Mine superintendent Rogers testified that second shift foreman Richard Fair told
him that Green had gone home because his father was sick.
On the evening of September 18, both Federal and Kentucky State Mine inspectors
arrived at the mine to assess the situation. It is not entirely clear how these inspectors became
aware of the water issue at Respondent, but it is clear that MSHA inspector William (Craig)
Clark and two inspectors from the Kentucky Office of Mine Safety and Licensing arrived at the
site in the evening. 9 After inspecting the seal and mine, and noting that the water coming from
the seal has almost roofed out, MSHA inspector Clark issued a "K" order shutting down the mine
except for water removal operations. 10 Foreman Middleton was .still at work when the inspectors
arrived at the mine, but Rogers did not arrive at the mine until after the "K" order was issued and
the inspectors had apparently left the site. The effect of the "K" order was that the Respondent
had to remedy the water problem before it could resume its normal operation of mining coal.
At the hearing there was various testimony regarding the Respondent's knowledge of how
the inspectors came to visit the mine site. Foreman Middleton testified that Superintendent
Rogers told him on Friday, September 18, that a Federal inspector had told him that the
inspectors "were there on a complaint", but he did not indicate to Middleton who made the
complaint (TR 136). Rogers testified that in the week following September 18, he as~ertained
from the State inspectors that Tony Oppegard had telephoned in a complaint about the water (TR .
7

Middleton also testified that the mining engineer told him at some point the active
portion of the mine was safe because its elevation was higher than the leaking seal , but he never.
reported that to Smith or Green (TR 133-134).
8

Rogers was apparently not at the mine site when the water was first noticed and did not
arrive there until the evening.
9

One of the State inspectors was Todd Middleton, who is a nephew of foreman Darrell
Middleton.
10

Section 103(k) of the Act provides, in pertinent part:
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 the approval of such representative, in
consultation with appropriate State representatives, when feasible, of any
plan to ... return affected areas of such mine to normal.
33 FMSHRC Page 24 7

173-174 ). He further testified that although he did not initially know who Mr. Oppegard was, he
began to ask questions and became aware that Mr. Oppegard was an attorney who represented
miners .. ·
The mine did not operate on Saturday and Sunday, and as a result the water continued to
accumulate. Superintendent Rogers testified that because the pumps were not "doing too good of
a job", the "water gain[ed] on us more" over the weekend (TR 148).
On Monday, September 21, the.entire first shift reported to work. Donnie Smith was told
by Darrell Middleton, after talking to Rogers, that there was no work, and that he should go home
as the inspectors were not letting anyone beyond the seal. Middleton testified that on Monday, 67 men worked laying pipe a distance of 2000 feet from the seal area to outside the mine. Also
bigger capacity pumps were installed and eventually larger diameter piping. Smith did not work
(as he was sent home), but Middleton claimed he had no role in the selection process of who
worked and who didn't (TR 124). Green also reported to work on the second shift on Monday,
but he, too, was sent home.

In the next few days, both Smith and Green made repeated efforts, either by visiting the
mine or by telephone, to ascertain when they were to return to work. They were repeatedly told
that there was no work yet. Finally they were told that they may as well sign up for
unemployment compensation benefits. Both of them did so on Wednesday, September 23 when
they visited the ·unemployment office. 11 The next day, Thursday, both Smith and Green went
· separately to the mine site during the day shift to pick up their pay checks. According to their
· testimony, all the first shift employees' vehicles were in the parking lot and they concluded that·
"something was up". 12
On October 19, Billie Smith, Donnie Smith's wife; telephoned Barry Rogers at the mine
office. She knew Rogers socially and had talk~d to him on the phone 20 or more times. Rogers
took the call and when Billie said she wanted to speak to him, he told her to come to the office
. and speak to him personally. She went to .the office that same day and asked him why Donnie
wasn't working. According to Billie Smith, Rogers replied, "Well what the fuck did Donnie and
Chad call the fucking inspectors on me for?" According to Mrs. Smith, Rogers went on to say .
that the State inspectors had told him that Tony Oppegard called the State inspectors after Donnie
· or Chad had called him and told Oppegard that water was getting ready to flood the mine and the
inspectors needed to get there before someone got hurt (TR 92-93). In his testimony, Rogers
admitted to having a conversation with Billie Smith and his testimony did not really dispute Mrs.
Smith's version of the conversation as he testified that he told Billie Smith that Tony Oppegard
had something to do with "it" and that Chad and Donnie were behind it. He also admitted using
the word "fucking" at least once during his conversation with Mrs. Smith (TR 174-175). In his
11

Unemployment records submitted into evidence by the Respondent indicated that both
Smith and Green last worked on September 18 and the reason given for the claims were "Lay Off
with Definite Recall".
12

Two other employees, Mark Cain and Anthony Goins had signed up for unemployment,
but they were recalled to work.

33 FMSHRC Page 248

testimony about this conversation, Rogers explained that he asked Billie Smith "why they called
the effin' inspectors, 'cause I mean, you have inspectors every two or three days anyway, and
when you get an inspectors (sic), and you're already trying to take care of the job that's
happening and what's happening, it just interrupts you from doing ... your job" (emphasis
supplied) (TR 175). 13
On October 27, Smith and Green filed discrimination complaints with MSHA against the
Respondent alleging that they had not been recalled because of their protected activities. The
case was assigned to Special fuvestigator Guy Fain. Mr. Fain took the complainants' statements
that day and then he traveled to the mine site to interview Superintendent Rogers. When Fain
arrived at the site to talk to Rogers that day, he informed Rogers that he was investigating a
105(c) complaint on behalf of Smith and Green. According to Fain, Rogers replied, "Well, that
doesn't surprise me a D-A-M bit." (TR 28) Fain asked Rogers what he meant by that and Rogers
replied that they had called the "damn inspectors in on me." (TR 28) When Fain asked hini how
he knew that, Rogers said that the State inspectors told him. At that point Rogers stated that he
did not want to talk about the situation until he had his attorney present. 14 On November 10, Fain
again met with Rogers and Respondent's attorney. During this meeting, Fain took a written
statement, which is not part of the record herein, in which Rogers admitted hearing from the state
inspectors that Tony Oppegard had something to do with filing the complaint on September 18.
At the hearing, Rogers testified that, although he did not know who Tony Oppegard was on
September 18, the State inspectors told him during the next week that the water complaint was
made by Mr. -Oppegard; that he asked inspectors about him and found out he was representing
Smith's mother (TR 179) 15 ; and that based on everything, he figured that Smith and Green were
involved in the complaint.
Following this meeting with Mr. Fain; Respondent reinstated Smith to his job on
November 16. fu order to tell Smith to report to work, Superintendent Rogers called the home of
Green artd spoke with Angela Green, Chad's wife. (Mrs. Green was Smith's sister.) 16 Mrs.
13

I fully credit Mrs. Smith's testimony as it was more complete as to the substance of the.
conversation.
14

Rogers did not testify as to this conversation with Fain.

15

Donnie's father had been killed at the mine in June 2009 and Oppegard was
representing her in a suit against the mine.
16

The Respondent does not dispute this call and Rogers did not testify about it. The
Respondent did present the testimony of Billy Jeffrey Copeland, its bookkeeper. Copeland, who
does not work at the mine site but at a facility 45 minutes away, testified that he was asked by
Barry Rogers to contact both Smith and Green for the purpose of telling them to report to the
mine office to talk to Rogers. At first he testified that Rogers told him to call in mid-October
but, on cross-examination, changed his testimony on the timing of the calls to shortly before
Smith returned to work on November 16. He also testified that he probably called each of them 2
times but on each occasion, there was no answer, that there were no answering machines and that
33 FMSHRC Page 249

Green also credibly testified that she is a stay at home mom because of small children, that she
received no other calls from the Respondent before November 16 or after that date, and that she
has had the same telephone number for about 3 years. 17 The Respondent did not reinstate Green
until January 6, 2010, following a settlement obtained at the hearing for temporary reinstatement
under the Act held the previous day (See Exhibit 1).
After MSHA issued the ''K" order on the evening of September 18, the Respondent was
obligated to remedy the water problem before it could resume mining coal. To do so, the
operator had to run additional pipe lines and install larger pumps, following additional visits by
MSHA inspectors to modify the plans to abate the water problem (TR 145, 148). Eventually the
water issue was taken care of to the point that coal production resumed. 18 Rogers testified that
coal production resumed in about two weeks following the September 18 incident (TR 144),
which would have been early October. During that interim "clean-up" period, Rogers further
testified that if any mil.er wanted to work, the mine let them work rather than be laid off (TR
153)~ Even after the "K" orderwas terminated, second shift production did not begin
immediately and it was November before this shift began producing -coal {TR 146).
Nevertheless, between September 21 and November, Rogers testified that the second shift
employees were performing "dead work" or maintenance work as "the equipment was getting
old" and "the inspectors were staying with us pretty heavy, and we had to try to keep up the
mines better" (emphasis supplied) (TR 146)~ Copeland, the Respondent's bookkeeper, testified
that the Respondent hired a new belt man on the first shift before Smith was recalled on
November 16.

Le&al Analysis
When considering the legal principles with the facts particular to this case, it is clear that
· the Respondent violated Section 105(c) of the Mine Act by discriminating against the
Complainants for the mistaken belief that they had called the inspector_s into the mine. Although
the Complainants may not have engaged in.protected activity, it cannot be denied that the
Respondent believed they did so based on its belief that the inspectors came to the mine because
of a complaint made by Oppegard after the Complainants contacted Oppegard. The fact that the
Complainants were laid off in retaliation for their protected activities goes directly to the heart
and purpose of the antidiscrimination provisions of the Act. fu passing this legislation, Congress
recognized the intent to protect miners against "any possible discrimination which they might
the phones just rang and rang. Neither Copeland nor Rogers attempted to contact Smith or Green
by mail or in person.
·
· .

17
- I note that the telephone number that she testified to having is the same number as ori

the Respondent's records for Smith and Green (See Exhibits A and B).
18

According to Rogers, production of coal did not resume on a full basis immediately, but
gradually increased.
.

33 FMSHRC Page 250

suffer as a result of their participation." S. Rep. No. 95-181, 95 1h Congr., l51 Sess. 36 (1977)
reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nc1
Sess., Legislative History of the Federal Mine Safety and Health Act of 1977 at 623 (emphasis
added). This protection was recognized to extend to those. situations were the employer only
believed that the employee engaged in protected activity as this could have an even greater
chilling effect than discrimination against those who had actually acted. Elias Moses v. Whitley
Development Corp., 4 FMSHRC 1475, 1480 (1982). The testimony at hearing demonstrated that
the Respondent believed that the Complainants had "something to do with" the inspectors being
called and laid them off and refused to timely recall them as a result of this belief. The testimony
of the meetings between Rogers and Mrs. Billie Smith and between Rogers and Fain establishes
this.
The Complainants here have also suffered adverse action. Both men were repeatedly told
there was no work for them and then laid off from the mine. Further, even assuming that the
Respondent had a legitimate reason to briefly lay them off due to the Respondent not being able
to mine coal, an argument that I do not find persuasive, it failed to recall them in a timely
manner. Although the Respondent initially argued in its Answer to the Amended Complaints
that Smith and Green voluntarily left their jobs and it believed that they had quit, the facts show
otherwise. There was unrebutted testimony that the Complainants continued to call for several
days after the leak to ask whether there was work to do. It is also significant that the Respondent
did not raise the "quit" defense at hearing. 19 Further, and most telling, when the Complainants
filled out their applications for unemployment benefits, they characterized their unemployment as
a "lay off with definite recall," after being told by the Respondent to write this on the ·
applications for benefits. Respondent's assertion in its Answers that the Complainants had quit
is not supported by its own evidence adduced at the hearing, including the testimony that
Respondent did not contest the Complainant's unemployment benefits.
The motivation for the Respondent's actions appears to have been its belief, real or
mistaken, that the Complainants engaged in protected activity. Knowledge of the protected
activity is one of the most important factors in determining whether the Respondent was
motivated by the protected activity. Secretary ofLabor on behalf of Chacon v. Phelps Dodge
Corporation, 3 FMSHRC at 2510 (citing NLRB v. Long Island Airport Limousine Serv., 468
F.2d 292, 295 (2°d Cir. 1972). Because subjective factors are involved, knowledge can be proved
by circumstantial evidence and reasonable inferences. Id. The evidences and inferences here
tend to demonstrate that the Respondent had knowledge of the protected activity. First,
Respondent agents knew that someone had engaged in protected activity by alerting MSHA and
Kentucky State inspectors to the water in the mine, as the inspectors arrived at the mine site on
the evening of September 18 despite the fact that the Respondent had reported the leak and the
flooding around 11 :30 that morning. 2 Further, one of the State inspectors who visited the mine

°

19

When consistent with the totality of the evidence, shifting defenses may be further
evidence of a violation. See Bay State Ambulance Rental, 280 NLRB 122 (June 1986).
20
Smith and Middleton both testified that the water leakage was noticed about halfway
through the first shift shift, which ran from 7:00 a.m. to 3 :00 p.m.
33 FMSHRC Page 251

that evening was the nephew of foreman Middleton. This inspector would have known who had
made the call and it is reasonable to believe that he told Rogers that Oppegard had reported the
leak.21 The fact· that Oppegard was representing Smith's mother in an unrelated law suit against
Respondent would lead Rogers to believe that Smith and Green, who were brothers-in-law, had
contacted Oppegard. In his testimony, Rogers admitted that, although he initially did not know ·
who Oppegard was, he quickly ascertained from the State inspectors that Oppegard was an
attorney who represented miners· and that Oppegard had been responsible for filing the complaint
that resulted in the inspectors coming to the mine on the evening of September 18.
Second, the Respondent's behavior toward the Complainants shows blatant animus and
hostility toward the protected actions. Rogers admittedly resorted to cursing when discussing the
activity with Mrs. Smith and Inspector Fain. When speaking to Mrs. Smith on October 19,
Rogers said "Well, what the fuck did Donnie and Chad call the fucking inspectors on me for?"
Later, when approached by MSHA special investigator Fain, Rogers said that the discrimination
complaint did not surprise him a "H-A-M" hit, and that it was the Complainants who called the
''damn inspectors." It cannot be stressed enough that·Rogers testified to the truth of these
conversations at hearing. He also testified that inspectors were basically an interruption to
regular mining work being completed. Not only did Mr. Rogers use harsh and aggressive
language, but his words more than implied that he was disapproving of the protected activity.
Further, it has been established that the more animus is directed specifically towards the
protected activity, the more probative weight it _carries. Secretary ofLabor on behalf of Chacon
V. Phelps Dodge Corporation, 3 FMSHRC at 2511.
Third, the timing of the lay-off could not be any more suspicious. See NLRB v. ·Long
Island Airport Limousine Serv., 468 F.2d 292,. 295 (2nd Cir. 1972)(When the employer received
knowledge of protected activity and fired employee on the same day, the timing of the adverse
action was "stunningly obvious.") The water problem began on September 18, and that same day
the MSHA inspector issued a "K" order shutting down the mine except for water remediation.
The very next workday, Monday, September 21, both Complainants were told that the~e was no
work for them to do, even though other miners were helping to lay pipe in the mine. 22 This
continued for two more days, before the men eventually were told to file for unemployment
benefits. Further, all of the other first shift employees were working at the mine on Thursday,
September 24, when the Complainants went to the mine to pick up their paychecks. 23 Given that
21

Middleton's testimony supports this.

22

Significantly, Rogers testified that he.allowed whoever showed up for his shift to work.
Clearly this was not the case for Smith and Green, both of whom reported for work on September
21 and on the next two days attempted to ascertain when work was available. Also Middleton
testified that he had not "chosen" the employees who were to work on Monday; but Rogers had
done so.
23

Green testified that Jamie Hanes had not been called back to work either, but Rogers
testified that Hanes did not want to work, creating the inference that he had been asked return.

to

33 FMSHRC Page 252

the Complainants were told not to work the workday immediately following the inspection and
subsequent "K" order, the timing of Respondent's actions in telling Smith and Green there was
no work is highly suspect.
Finally, disparate, or inconsistent, treatment is indicative of discrimination and there was
definitely disparate treatment among the miners here. Secretary ofLabor on behalf of Chacon v.
Phelps Dodge Corporation, 3 FMSHRC at 2512 (citing NLRB v. Melrose Processing Co., 351
F.2d 693, 698 (8th Cir. 1965). Smith and Green were the only two miners who were not recalled
to the mine when coal production resumed. Although two other employees also filed for
unemployment, they were called back to work almost immediately. Further, while the
Respondent testified that it let anyone work who wanted to work, the Complainants were told
that there was no work for them and that they should go home. 24 No work-related or
performance issues were raised by the Respondent to provide a nondiscriminatory explanation
for the disparate treatment of the Complainants.
Based on the above, I find that that the Secretary and the Complainants have established a
prima facie case of discrimination under Section 105(c) of the Act. Having established a prima
facie case, the Respondent can rebut the prima facie case by showing that either no protected
activity occurred or that it was in no way motivated by the protected activity; The Respondent .
has not argued that no protected activity occurred either in the pleadings or at hearing. To the .
contrary, as noted above, protected activity occurred in that a dangerous condition existed at the
mine and inspectors were alerted to this condition. Further, the Respondent believed that Smith
and Green were behind the complaint to MSHA and/or the State over the condition ..
The Respondent's defenses seem to be that, first, Smith and Green voluntarily chose to be
lrud off and collect unemployment benefits; second, Respondent tried to recall the Complainants
but could not reach either of them; or, third, the Complainants should have kept in contact with ·
the Respondent if they wanted their job back. None of these arguments are persuasive and none
are supported by the credible evidence. In the case of the first defense, both Smith and Green
visited the mine and then repeatedly called the Respondent to ascertain if work was available and
were told that there was no work for them to do at tha~ time. When Smith told Middleton that he
needed money and would have to consider filing for unemployment, Middleton respondeP. by
telling him that it was a good idea to do so. 25 When Smith arrived at the mine to pick up his last
paycheck on Thursday, he realized for the first time that everyone was back to work except for
24

The Complainants cited "lack of work" as the reason for the layoff. Copeland testified
that the Respondent did not contradict this statement or contest for unemployment benefits.
25

Smith testified that when he told Middleton that he had to do something to keep money
coming in, Middleton responded by saying, "Well, I, if I wasn't over here, I would have done
been signed up on unemployment." Before actually signing up, Smith again asked Middleton
who said, "Yeah, go ahead. Go on and sign up." Green was also encouraged to sign up by
Rogers when he called to obtain the address of the mine.
33 FMSHRC Page 253

Green and himself He confronted Middleton, but was told that he would have to "take it up with
Barry [Rogers]." These actions are not indicative of men choosing to be laid off and collecting
unemployment benefits. Continuing to call the mine throughout the first week, double-checking
before signing up for unemployment, and confronting the foreman at the mine site would all
indicate that the men wanted to retlirn to work and were upset that the others had been called
back when they had not.
The second defense claimed by the Respondent falls flat as well for several reasons.
Although the Respondent claimed that it tried to call the Complainants but received no answer or
answering machine, Mrs. Green testified, credibly, that their telephone number had been the
same for approximately three years, that· they had an answering machine, and that she was a stay
at home mom. Moreover, the Greens' phone number is the same phone number found on
paperwork kept by the Respondent. 26 In fact, Respondent telephoned Mrs. Green when it wanted
to recall Smith to work on November 16. Although the Respondent presented the testimony of
its bookkeeper to demonstrate that it attempted to contact both of them by telephone prior to
Smith's recall, it admitted that no letters were sent to the Complainants to inform them that they
could come back to work. Further, Foreman Middleton drove past the Complainants' houses
everyday on his way to and from work. If the Respondent had wanted to reach the Complainants,
Middleton could have easily taken a momentto stop by their houses.
The third defense claimed by the Respondent, viz. that employees on layoff must
maintain contact with an employer if they want their job back, is a novel and unusual concept.
Not only is this a ludicrous position, but it -is even more so given the facts herein that Respondent
repeatedly told the Complainants that there was no work for them and they should file for
unemployment, while at the same time allowing all other employees to work. I note that it is
customary for an employer to contact employees that it has laid off as work becomes available
with any precondition that the employees keep in touch. It is not the responsibility of the .
employee to continue to contact the employer to establish if conditions for recall are present.
(this-information is in the purview of an employer). Second, the facts establish that the ·
Complainants asked the Respondent whether they could return to work multiple times and were
· told each.time that there was still no work available for them.
I reject all of the Respondent's defenses as each is without merit. Therefore, I find that
the Respondent has not rebutted the Secretary's and Complainants' prima facie case.
In conclusion, the overwhelming weight of the evidence establishes that the Respondent
violated Section 105(c) of the Act by discriminating against the Complainants based on its belief
that they engaged in protected activity. All the evidence adduced at the hearing fully supports
this, including significantly the testimony of Rogers wherein he essentially ad.'llitted to the
discrimination in his conversations with Mrs: Billie Smith and MSHA special investigator Fain.

26

See Respondent Exhibits A andB. Smith's telephone number on Respondent's
records is the same number as Green's.

33 FMSHRC Page 254

Therefore, I conclude that Chad Alex Green and William Donnie SmitJ? are entitled to backpay in
the amounts of $13,303.00 and $5,644.00, respectively, plus interest calculated until the date of
payment in the manner required by the Commission. 27

Civil Penalty Assessment
The Secretary has proposed a total penalty of $20,000.00 for the Respondent's violations
of the Act. However, it "is the judge's independent responsibility to determine the appropriate
amount of penalty in accordance with the six penalty criteria set out in Section 11 O(i) of the Act,
30 U.S.C. § 820(i). ·Sellersburg Stone Co. V; FMSHRC, 736 F.2d 1147, 1151 (71h Cir. 1984);
Secretary on behalf ofJohnson v. Jim Walter Resources, Inc., 18 FMSHRC 552, 555 (April
1996).
The Respondent has a long and significant history of violations. The Assessed Violation
History Report for the two years preceding the Respondent's discriminatory action shows that the
operator was cited for 418 violations, including ten citations under Section 104(d) of the Act. 28
From this, I find that the Respondent has a serious history of prior violations.
The Respondent's actions toward Smith· and Green were at best highly negligent. Indeed,
Repondent's actions were willful and evidenced a reckless disregard for the protections afford~d
miners under ·the Act. Not only do the facts show that Smith and Green were laid off and refused
timely recall because the Respondent believed that they engaged in protected activity, but the ·
Respondent essentially admitted to both Smith's wife and the MSHA special investigator that it
did not recall Smith and Green because Respondent believed that they had been resp~:msible for
the MSHA and State inspectors coming to the mine to investigate the water situation. Then, at
hearing, it asserted that it believed that both:men had chosen to quit and sign up for·
unemployment, even after the men called several times to ask if there was work for them to do ..
It is a generally accepted principle that the penalty assessed should be appropriate to the
size of the operator. Douglas R. Rus~ford Trucking, 22 FMSHRC 1127, 1127 (Sept 2000)
(ALJ). The credible evidence shows that the operator employed approximately twenty (20) men,
including the shift foremen and supervisor at the particular·mine. 29 When combining this

27

The proper method of calculating interest on backpay is: Amount of interest= The

quarter's net back pay x number of accrued days of interest (from the last day of that
quarter to the date of payment) x the short-term federal underpayment rate. Secretary on
behalfofBailey v. Arkansas Carbona Co., 5 FMSHRC 2042, 2052 (Dec. 1983), as modified by
Clinchfield Coal Co., 10 FMSHRC 1493, 1505-06 (Nov. 1988).
28

As archived by the MSHA Mine Data Retrieval system. See also Complainants'
Exhibit 2.
29

All of which are considered "miners" under Sections 3(g) and 3(h)(l) of the Act.
33 FMSHRC Page 255

information with the other criteria, I conclude that $10,000.00 per violation is appropriate for an
operator of this size.
The Respondent made no argument either in the pleadings, at hearing or in its brief that it
would be unable to pay the penalties as assessed.
The Secretary argues that the Respondent's action against the Complainants supports a
finding of the highest· gravity. I agree. .The fact that the Respondent laid off and refused to
timely recall the Complainants because it believed that they engaged in protected action goes
directly to the heart and purpose of the anti-discrimination provisions of the Act. Moreover, this
could reasonably create an even greater debilitating effect than discrimination based on overt
actions because miners could fear even the appearance of being engaged in protected activities.
Elias Moses v. Whitley Development Corp., 4 FMSHRC 1475, 1480(1982).
Finally, I find that the Respondent did not demonstrate good faith in abating this
violation. It only brought Smith back to work after speaking to the special investigator following
the filing by Smith· and Green of discrimination complaints with MSHA. Further, Green was not
reinstated until the Respondent was forced to do so following a hearing for temporary
reinstatement order. Finally, as stated above, the Respondent essentially admitted at hearing that
it had refused to recall the Complainants because it believed that Smith and Green "had
something to do" with the inspectors being called.
Taking all of the _above factors into consideration, I conclude that the Secretary's assessed
civil penalty of $20,000.00 is more than warranted in this case. This, along with the stipulated
$18,947 .00 in backpay, serves .two main purposes ... These are ''to further the purposes of the Act
by deterring retaliatory actions, and to put an employee into the financial position he would have
been in but for the discrimination." Kentucky Carbon Corp., 4 FMSHRC 1, 2 (Jan. 1982).
·

ORDER
Accordingly, having previously found that D & C Mining Corporation discriminated
against Chad Alex Green and William Donnie Smith by laying them off and refusing to timely
recall them, it is ORDERED that:
1.

The Respondent PAY Chad Alex Green $13,303.00 and William Donnie Smith
$5,644.00inhackpay, as stipulated, within thirty (30) days of the date of this decision
with interest using the Arkansas-Carbona/Clinchfield Coal Co. method.

2. The Respondent EXPUNGE any reference to the discriminatory actions from Green
and Smith's personnel files or any other records maintained by the Respondent.

33 FMSHRC Page 256

3. The Respondent POST this decision at all of its mining properties located in Harlan
County, Kentucky, in conspicuous, unobstructed places where notices to employees
are customarily posted, for a period of sixty (60) days. 30
4. The Respondent PAY a civil penalty in the amount of $20,000.00, for its violation of
Section 105(c) oftheAct, within thirty (30) days of the date ofthis decision.
It is also ORDERED that the Regional Solicitor has the responsibility to ensure full and
complete compliance with this decision and to take the appropriate action should the Respondent
fail to fully comply.

Janet G. Harner
Administrative Law Judge

Distribution: (Certified Mail)
Schean G. Belton, Esq., Office of the Solicitor, US Department of Labor, 618 Church Street,
Suite 230, NashVille, TN 37219-2456
WesAddington, Esq., AJ)palachian Citizens Law Center, Inc., 317 Main St., Whitesburg, KY
41858
.
Tony Oppegard, Esq., P.O. Box 22446, Lexingtoh, KY 40522
Elsey A. Harris, ill, Esq., Mullins, Harris & Jessee, P.O. Box 1200, Norton, VA 24273
Chad Alex Green, P.O. Box 484, Cawood, KY 40815-0484
William Donnie Smith, 4089 S. Hwy. 3001, Cawood, KY 40815-5007

30

This remedy is warranted because of the chilling effect Respondent's actions could
have on other miners.
33 FMSHRC Page 257

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

January 20, 2010
SECRETARY OF LABOR, MSHA
on behalf of HARRY LEE BECKMAN,
Complainant

DISCRIMJNATION PROCEEDING
Docket No. WEVA 2009-1526-D
Case No. MORG-CD-2008-l 0

v.
METTIKI COAL (WV), LLC,
Respondent

Mountain View Mine
Mine ID: 46-09028

DECISION
Appearances: Samuel Lord, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for the Complainant;
Willa B. Perlmutter, Esq., Crowell & Moring, LLP, Washington, D.C.,
for the Respondent.
Before:·

·Judge Feldman

This case is before me based on a June 3, 2009, discrimination complaint filed against
Mettiki Coal (WV), LLC ("Mettiki") pursuant. to section 105(c)(2) of the Federal Mine .Safety
and Health Act of 1977, 30 U.S.C. § 815(c)(3) (2006) ("the Act"), by the Secretary of Labor
("the Secretary") on behalf of Harry Lee Beckman. The complaint alleges that Mettiki violated
the provisio_ns of section 105(c)(l) of the Act,130 U.S.C. § 815(c)(l), when it discharged
Beckman on September 15, 2008, following a September 9, 2008, diesel locomotive accident.
The hearing was conducted in Oakland, Maryland, from July 21 through July 23, 2010.
The parties have filed post-hearing briefs and replies that have been considered in the disposition
of this matter.

1

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

No person shall discharge or in any manner discriminate against or cause to be
discharged or cause discrimination against or otherwise interfere with the exercise
of the statutory rights of any miner ... because such miner . . . has filed or made
a complaint under or related to [the Act], including a complaint notifying the
operator ... of an alleged danger or safety or health violation in a coal or other
mine, ... or because of the exercise by such miner ... of any statutory right
afforded by [the Act].
33 FMSHRC Page 258

I. Statement of the Case
Beckman was the operator of a diesel locomotive when a serious a,ccident occurred on
September 9, 2008. The Secretary asserts that Beckman's September 15, 2008, discharge
following this accident, was motivated, at least in part, by his protected activity. The protected
activity relied upon is Beckman's long term participation in mine inspections as a miners'
representative during his 28 years as a Mettiki employee. In addition, the Secretary relies on
safety related complaints, principally concerning watery track conditions, communicated to mine
management on April 17, 2007, and March 18, 200K
Mettiki maintains that its sole reason for discharging Beckman was Beckman's loss of
control of a multi-ton diesel locomotive that collided with another track vehicle. The accident
resulted in injuries to two miners, one of whom required hospital treatment.
Mettiki' s claimed justification for terminating Beckman because of his involvement in a
serious accident is not implausible. The record fails to reflect that Mettiki harbored resentment
or animus towards Beckman's long term participation as a miners' representative, or towards his
two safety related complaints that occurred during the 17 month period prior to his discharge.
Thus, the Secretary has failed to present adequate evidence that Mettiki's decision to terminate
Beckman was motivated, in any part, by his protected activity. Consequently, Beckman's
discrimination complaint must be denied.
IT. Findini=s of Fact
a. Background
Mettiki operates the Mountain View Mine (''Mountain View"), an underground coal mine
in Tucker County, West Virginia, where Beckman worked until his September 2008, termination .. ·
At the time ofBeckman's discharge, Mountain View was mining longwall panels as well as
continuous mining units. The day and midnight shifts are production shifts, and the afternoon
shift is a maintenance shift. (Tr. 926-27).
Mettiki also operates several surface facilities in nearby Maryland. The surface facilities
include a strip mine, acid mine drainage facilities, a coal preparation plant, stockpiles, and
unloading and loading facilities for both rail and truck. Most of Mettiki' s coal· goes to the
preparation plant, although some raw coal goes to a nearby power station. (Tr. 922"'"23).
In calender year 2008, the year Beckman was terminated, Mettiki produced over 5 million tons
of raw material, and 2.8 million tons of clean coal. (Tr. 924-25).
Beckman is a 53-year-old coal miner who had been employed by Mettiki for over
28 years. (Tr. 985). In 2005, Beckman was transferred to Mountain View where he worked as a
general laborer on the afternoon shift until his discharge in September 2008. (Tr. 251, 287, 482).

33 FMSHRC Page 259

Mettiki has stipulated that, generally speaking, Beckman was a satisfactory employee.
Specifically Mettiki stipulated that, with the exception of Beckman's operation of diesel
locomotives, "in the past [Beckman] had not been insubordinate and he had performed
adequately or more than adequately." (Tr. 985).
b. Beckman's Miners' Representative Activities

In September2008, there were 19 registered miners' representatives at Mountain View.
Beckman was one of the 19 registered miners' representatives, having been for many years a ·
representative at both ofMettiki's mines in Maryland and at Mountain View. (Tr. 86-87; Stip.
Nos. 3, 5; Gov; Ex. 3). Mettiki used a rotation system to determine who would accompany an
inspector as the miners' representative on a given shift. If the next available miners'
representative declined to travel with the inspector, and no other miners' representatives
volunteered, the mine inspector traveled alone.
Richard Show, a former colleague of Beckman who testified on his behalf, worked for
Mettiki as a miner from 1978 until he began his career as an MSHA inspector on April 1, 2005.
(Tr. 53). Show served as a miners' representative during his tenure with Mettiki. (Tr. 89-90,
101). Show's testimony concerning his view ofMettiki's tolerance for the activities of miners'
representatives was contradictory. Show initially testified that Mettiki was "open to people
traveling with inspectors." (Tr. 85). Show also testified that he did not personally experience
any retribution from the company for his activities as a miners' representative. (Tr. 85, 93).
However, Show also attempted to diminish Mettiki's enthusiasm for the role of miners'
representatives by opining that Mettiki neither encouraged nor discouraged their participation.
(Tr. 85). Coming full circle, Show subsequently implied that Mettiki interfered with the miners'
right to partiCipate 'in inspections because Mettiki did not actively .recruit a substitute for a
miners' representative who had declined to travel with an inspector. (Tr. 86-87).
Any suggestion by Show that Mettiki interfered with miners accompanying inspectors . ·
was undermined by Beckman. Beckman testified, in essence, that Mettiki permitted a registered
miners' representative to volunteer as a substitute if the next available miners' representative
declined. (Tr. 256). In this regard, Beckman testified that he frequently traveled with MSHA
inspectors when other miners' .representatives declined. Beckman testified that he also
frequently accompanied inspectors from the state of West Virginia. (Tr. 255-56). The Secretary
asserts that BeckmaiJ.'s frequent participation as a miners' representative was a motivating factor
in his termination. Beckman testified:
Mr. Lord: So let me ask you again, would you say that when an inspector came to
the shift, would you typically travel with the inspector?
Beckman: Well, I'd go ask everybody and see who wanted to go. And if nobody
wanted to go, then I would go, yeah.

33 FMSHRC Page 260

Mr. Lord: When you say you asked everybody, are you talking about other miners
on the list?

Beckman: I'd ask all of the miners' reps if any of them wanted to go. And if they
didn't want to go, then I'd go.
(Tr. 256).
c. Beckman' s April 17. 2007. Safety Complaint
In April 2007, Beckman was assigned to operate a track locomotive hauling setup

supplies to a new longwall panel area. (Tr. 268). This required Beckman to travel on a section
of track between the No. 2 Butt and the No. 3 Butt. (Gov. Ex. 12). For approximately three days
prior to his safety complaint, Beckman observed an area of high water around the ttack in the
vicinity of the No. 3 Butt. (Tr. 268). The locomotive's sanders clogged when Beclarian ·
traversed this area. The sanders are used to apply sand to the tracks to increase traction for
braking. Beckman decided to inform upper management about this condition because the water
had been accumulating for several days. (Tr. 269).
On April 17, 2007, approximately 17 months prior to his termination, Beckman informed
Mountain View's Safety Director, TerrySavage, about the water accumulation that was
interfering with the operation of track equipment. (Tr. 759-63; Joint Stip. 6; Gov. Ex.12).
Savage testified that he considered Beckman's· complaint to be valid. (Tr. 762). Savage testified
that it was the company's policy to send e-mails to all concerned members of management
summarizing safety complaints so that safety problems could be addressed. (Tr. 760-62).

Consequently on April 17, 2007, Savage e-mailed Al Smith, Frank Sanders, Dave Blythe,
Larry Johnson, and Jody Theriot to inform them ofBeckman's concern. (Gov. Ex.12). At that
time, Smith was the manager of underground operations; Sanders was a foreman; Blythe was a
maintenance superintendent; Johnson was a Iongwall coordinator; and Theriot was manager of
safety and human resources.
Savage's April 17, 2007, e-mail stated:
Harry Beckman stopped in the office today to voice a safety concern. Harry said
that the track between 2-Butt and 3-Butt [h]as water accumulations over the rail
that is causing the sanders on the locomotives to plug. Harry said the remainder
of the rail inby and outby this location is in good shape.

(Gov. Ex. 12).

33 FMSHRC Page 261

As previously noted, Beckman worked the 3 :00 p.m. to 11 :00 p.m. maintenance shift.
The condition Beckman complained of was not addressed dtiring the maintenance shift on
April 17, 2007. When Beckman reported to work the following day on the April 18, 2007,
Peny Mercure, the maintenance shift foreman, assigned Beckman and a contractor employee to
remedy the high water condition. (Tr. 285-87). The condition was corrected by jacking up the
rail above the water line and placing blocks underneath the tracks for support, (Tr. 270).
Beckman testjfied that although he sometimes operated a locomotive, he was not
classified as a designated motorman. Rather, he was classified as a general laborer.
He conceded that track repairs generally are assigned to general laborers. In fact, he admitted
that, in the past, he occasionally had jacked-up rails to alleviate water conditions on the tracks.
(Tr. 342).
The Secretary's brief asserts that Savage's e-mail was intended to intimidate. and deter .
Beckman from making further safety complaints.. The Secretary also asserts that Beckman' s
assignment to fix the subject track condition during the next maintenance shift was a further
attempt to dissuade Beckman from making future safety related complaints. (Sec'y Br. at 16-17).
d. Beckman's March 18. 2008, Complaint to Kreiser

On February 5, 2008, durjng an MSHAinspection, Show observed several track hazards
including high water aJong the track at two different locations . .Show issued notice of Safeguard
No. 7112585 pursuant to section 314(b) of the Act, 30 U.S.C. § 874(b), that included prohibiting
water from accumulating above the rails. (Gov. Ex. 5). The safeguard notice noted that the mine
had steep grades that contributed to the hazardous conditions. ·
Approximately one month later, on March 8, 2008, Beckman accompanied Show as a
miners' representative during a mine inspection. At that time,. Show observed water above the
rails for a distance often feet, as well as a nearby locomotive with clogged sanders. (Tr. 150).
Show issued citations for both conditions. Specifically, Show cited the track water as a non-S&S
violation of 30 C.F.R. § 75.1403 because it violated recently issued Safeguard No. 7112585;
and an S&S violation of 30 C.F.R. § 75.l 725(a) due to the clogged sanders because Mettiki had
not maintained mobile equipment in safe operating condition as required by the standard.
(Gov. Exs. 7, 8).

33 FMSHRC Page 262

One week later, on March 15, 2008, Show returned to Mountain View and observed an
additional high water condition on the rails for a distance of twelve feet. Show issued another
citation citing a 30 C.F.R. § 75.1403 violation of Safeguard No. 7112585. (Gov. Ex. 6).
Similar to the initial safeguard violation, Show also designated this safeguard violation as
non-S&S. The Secretary does not allege that Show issued the notice of safeguard or the
subsequent violations, including both safeguard violations in March 2008, as a result of
complaints by Beckman. (Tr. 152).
On March 15, 2008, during a recess in an annual refresher training session, Beckman
spoke to.Dwight Kreiser, Vice President for Mettiki's Northern Appalachia Operations.
Krieser had previously been General Manager at Mettiki mines, including Mountain View,
where Beckman had worked. In his previous capacities, Kresier had addressed non-safety
related concerns raised by Beckman.
Having recently accompanied Show on March 8, 2008, when Show issued a safeguard
violation for water on the tracks, Beckman complained to Kreiser about muddy and wet track
conditions.2 Beckman also complained about the need for ballast on the No. 5 and No. 6 Butt
tracks. Ballast is used to provide a firmer track bed to avoid derailments.
Beckman told Krieser that, in the future, he would not report violations or hazardous
conditions because "nothing's being done.'' (Tr. 222). Kreiser testified that he believed ·
Beckman was complaining about ongoing conditions at the mine. (Tr. 229). Kreiser was also
concerned about Beckman's allegation that safety complaints were not being addressed.

In view ofBeckman's complaints, Kreiser contacted Savage and Sanders, both of whom
are subordinate management officials. (Tr. 234-35; Gov. Ex. 11). S_avage told Kreiser that
Beckman had complained about water on the track "over a year ago." Savage left Kreiser with
the impression that Beckman's complaint was addressed and there was nothing further to be
done. Savage did not tell Kreiser that a notice of safeguard and a non-S&S safeguard violation
recently had been issued at Mountain View. (Tr. 227; Gov~ Ex. 11 ). Kreiser conveyed
Beckman's ballast concerns to Sanders who assured Kreiser that additional ballast was being
applied as needed.
On March 19, 2008, Kreiser sent Beckman a memorandum summarizing the results
of his inquiry into Beckman's complaints. Kreiser was also concerned about Beck.man's
expressed reticence to inform management about hazardous conditions. Kreiser's memorandum
to Beckman states:

2

Beckman was unaware of the second safeguard violation for watery track conditions that
Show had issued on the same day Beckman was attending refresher training on March 15, 2008.
33 FMSHRC Page 263

To: Harry Beckman
From: Dwight Kreiser
Subject: Response letter to Mr. HarryBeckman['s] comments directed to me on
Saturday March 15, 2008 at our annual retraining classes.

Mr. Beckman confronted me about the following issues on March 15, 2008
regarding safety concerns at the Mt. View Mine.
I)

Mr. Beckman said he went to Terry Savage regarding water and
mud on the West Mains track, and said Mr. Savage told him to fill
out a safety concern sheet.

I investigated this [accusation] and found out that Mr. Beckman
did go to Terry Savage concerning this matter over a year ago.
Terry advised me that he did tell Harry to fill out a safety concern
and took immediate action to remedy the complaint by bring[ing] it .
to the attention of the manager underground. Due to the amount
[of] time that has elapsed there is no fI u ]rther action necessary. ·

2)

Complained that 5 Butt and 6 Butt tracks needed more ballast
add[ ed] to them.

I communicated this with the operation management at the mine
and they conveyed to me that ballasting of the 5 Butt track is·
performed frequently as needed and that the 6 Butt track is
ballasted as it is installed. Underground management response ·
reiterates the statements made by a fellow hourly worker conveyed
when you brought this to my attention.

3)

Mr. Beckman made the following statement "I don't report
hazardous condition[s] anymore, because nothing is done about
it[.'1

My response to this is [that] safety is [of] the utmost importance to the company.
The company relies on the hourly workforce to inform management of these
conditions, and [to] correct any violations or practice that exposes our employees.
I also take offense to this statement in that it's your obligation as an employee

and fireboss to report any hazardous conditions that exist.
(Gov. Ex. 11) (emphasis in original).

33 FMSHRC Page 264

There is no evidence that Kreiser' s response to Beckman was disingenuous with respect
to Krieser's beliefthatBeckman's high water complaint was more than one year old, and that it
had promptly been addressed. There is also no reason to question the sincerity of".Kreiser' s
admonishment of Beckman in response to Beckman's statement that he would no longer report
hazards to management. Beckman continued to periodically accompany MSHA inspectors as a
miners' representative without incident after his communication with Kreiser. Beckman's last
trip with an inspector prior to his termination occurred on August 5, 2008. (Gov. Ex. 4).
e. The September 9. 2008 Accident

I. Locomotives at Mountain View
At Mountain View, diesel locomotives, or "motors," are used to haul shields and other
equipment during longwall moves, and to haul supplies at other times. (Tr. 490).
The locomotives are massive pieces of equipment that run on permanent rails underground.
Mettiki uses two different kinds oflocomotives: 15-ton Jeffreys and 30-ton Brookvilles.
(Tr. 424, 428). A Brookville is one foot wider and ten feet longer than the less powerful Jeffrey.
The operator cab of a Brookville is eight to nine inches lower than the operator cab of a Jeffrey
locomotive. (Tr. 491-92).
A Jeffrey locomotive has three brakes: a hand brake, that operates on air pressure and is.
routinely used during normal operation; a wheel brake, used when the motor will be parked for
an extended period; and an emergency brake, which automatically engages if air pressure to the
brakes drops below 50 pounds per square inch ("psi").· When the Jeffrey is traveling, its operator
must maintain at least 50 psi pressure to prevent the emergency brake from engaging. (Tr. 630).
In addition, the Jeffrey and Brookville locomotives are equipped with sanders that rely on
air pressure to function. The sanders apply sand on the track to create traction for effective
braking, particularly when the multi-ton locomotives are traveling down a grade. (Tr. 149, 304,
633). The operators must "rev" the locomotive engines before moving the locomotive. This
ensures that there will be adequate air pressure to operate the hand brake and the sanders, and to
prevent the emergency brake from automatically engaging, {Tr.. 443, 632).
Locomotives are paired and work in tandem, in a three unit train, to haul longwall shields.
Pairing locomotives is necessary because a longwall shield is too heavy to be pulled by a single
locomotive. During longwall moves, the shields are carried on a lowboy trailer that is attached
as the third unit of the train. (Tr. 65). Thus, a train consists of a Brookville, a Jeffrey and a
lowboy, or, two Jeffreys and a lowboy.
The comparative size of each locomotive dictates its particular function. When a
Brookville is paired with a Jeffrey, the Brookville is identified as the "lead" or "helper" motor.
The Brookville is used to pull the Jeffrey and lowboy when it is the front car, and to push the
Jeffrey and lowboy when it is the rear car when the train travels in the opposite direction.

33 FMSHRC Page 265

(Tr. 422-23). When necessary, the Jeffrey can be throttled to assist the Brookville in pulling or
pushing. However, the Jeffrey's primary function, when the multi-ton train loaded with shields ·
gains momentum traveling down a grade, is to serve as a supplemental brake system that assists
the operator of the Brookville in controlling the speed of the train. (Tr. 503,.._05).
Because of the Brookville's larger size, its operator controls when and how the motors .·
move. (Tr. 675, 858). The Brookville operator is responsible for making certain that the Jeffrey
has built up sufficient air pressure, and that it is ready to move, before engaging the throttle of the
Brookville. (Tr. 542-44). As the operator of the lead motor, the operator of the Brookville is
responsible for ensuring that the rail ahead of the motors is clear. (Tr. 428-29). To ensure the
path is clear, the Brookville operator relies on the locomotive's headlights that were described as
being brighter than the high be3llls on a car. (Tr. 544-45).
ii. The Teardown Track
Upon completion of a longwall panel, routine operations cease and all personnel
participate in the dismantling andmovement of the longwall equipment for developmentofthe
next panel. (Tr. 497-98). As noted, thelongwallis moved, shield by shield, to the next lQcation
via locomotives and lowboys. The two motors and the lowboy, coupled together, transport the
shields on the teardown track to the setup location for the next longwall panel. (Tr. 288).
The teardown track is a straightaway, divided by three cross..:cuts ("chutes").
The chutes are consecutively numbered from the No. 1 to No. 3 chute. The teardown tntck has a
gradual downhill grade in the direction from the No. 1.to the No. 3 chute. (Tr. 510-11, 606-07;
Gov. Ex. I). Utility equipment called "mules" use the chutes to transportthe dismantled shi_elds
from the longwall area to the lowboy that is situated at the intersection of the chute and the
teardown track. The locomotives pull the lowboys carrying the shields beyond the No. 3 chute
where the tr,ains exit to go to the next setup location. (Gov. Ex. 1; Tr. 64-65).
The distance between each of the three chutes where they intersected with the teardown
track was approximately 150 feet. (Tr. 866); Fluorescent lights were hung at each chute.
(Tr. 545-46, 866). Afternoon shift foreman J3llles Bateman, who participated in the
accident investigation, testified that the fluorescent lighting and the headlights from the
Brookville enabled a person standing at the No. 1 chute to see clearly to the No. 3 chute.
(Tr. 511, 513, 613). Although Beckman disputes that the entire teardown track was visible,
he testified that he could at least see the No. 2 chute from his Brookville when it was situated
at the No. 1 chute, a distance of approximately 150 feet. (Tr. 435-36).
Locomotive operators must be particularly vigilant of the safety of others during
longwaUmoves because of the speed at which the longwall move progresses. (Tr. 208, 498-99).
At such times, all personnel involved in dismantling and moving the longwall shields are ·
exposed to the potential hazard posed by the increased rail traffic of multi-ton locomotives
transporting multi-ton shields to the next setup area. (Tr. 498-99, 866).

33 FMSHRC Page 266

iii. The September 9. 2008. Collision
On September 9, 2008, Mettiki was moving the longwall after it had completed the
E-3 panel. (Tr. 65; Gov. Ex. 1). Beckman, operating a Brookville, and Mike Harvey, paired
with Beckman and operating a Jeffrey, were assigned to operate their locomotives in tandem on
the afternoon shift. Their locomotives were to be used to transport shields from the teardown
area to the next setup area. (Joint Stip. 7, 8). Beckman had been assigned to operate the heavier,
more powerful Brookville because he had more experience as a locomotive operator. (Tr. 423).

Immediately prior to the accident, Beckman was in the operator's compartment of the
lead Brookville that was coupled to Harvey's Jeffrey. Attached to the rear of Harvey's Jeffrey
was a lowboy carrying a longwall shield that had been loaded at the No. I chute. (Tr. 422-23;
Joint Stip. 9, 10). Beckman and Harvey were operating the third pair of locomotives on the
teardown track. In front of them, in the vicinity of the No. 2 chute, were Russ Knox and
Willie Welch, who were both operating Jeffreys that were pulling an empty lowboy.
(Tr. 656, 514). In front of.Knox and Welch, were the first pair motors, both of which were
Jeffreys, located in the vicinity of the No. 3 chute. These Jeffreys, operated by James Beavers
and Randy Sisler, were pulling a lowboy loaded with a longwall shield. (Tr. 656).
The plan was for Beavers and Sisler to leave the teardown area to transport their shield to
the longwall setup area for the next panel. (Tr. 660, 663). Knox and Welch were to leave the
teardown area behind Beavers and Sisler, at which time they would travel a full circuit for return
to the teardown area to pick up another shield. (Tr. 660, 663). Beckman and Harvey were to
follow Knox and Welch out of the teardown area to take their shield to the mine hoist, where it
would be taken to the surface for maintenance. (Tr. 656)..
Before the planned movement of the three pairs of locomotives, Harvey exited his
Jeffrey, leaving Beckman who remained in the Brookville. Harvey traveled on foot to find
a "boomer" to use to secure the longwall shield to the hoist for its transport to the surface.
(Tr. 656-58). After Harvey exited the Jeffrey, the Beckman/Harvey train was blocking a mule
on the No. 1 chute that was attempting to cross the teardown track. Consequently, Beckman,.
acting alone, moved the Brookville approximately 15 feet in the direction of the No. 2 chute
pulling the Jeffrey and the lowboy so that the lowboy cleared the No. I chute allowing the mule
to cross. (Tr. 356).
Shortly after Beckman had moved the Brookville forward to clear the No. I chute,
as Harvey was re-entering the Jeffrey, Anthony Fitzgerald, the teardown supervisor, instructed
Beckman and Harvey to exit the teardown track by following the motors in front of them.
The usual practice was for a motorman to use hand signals to ensure that his partner was ready
to move. However, Beckman throttled the Brookville, starting the train in motion without first
obtaining confirmation from Harvey that he was ready. (Tr. 302). Beckman testified that he
believed that Harvey was ready because he saw Harvey release the hand brake that frees the
Jeffrey's wheels in preparation for forward movement. (Tr. 301-02).

33 FMSHRC Page 267

However, Harvey maintains that he did not indicate to Beckman that he was ready.
Harvey testified:
Harvey: After l spoke to Anthony, I climbed up the motor, closed the door and
went to sit down. Before I could sit down, the motors took off. The motors were
moving. I [sat] down quickly, caught neutral, because it has to be in neutral to
start. I caught neutral, started it ...3
Court: So you got in the cab and it started to move?
Harvey: Yes ... So I put the motor in neutral, and I started it. Once it started,
because we were moving, I released my hand brake. That's not normal for me.
Normally I don't release the hand brake until I get air pressure. But the motors
were already moving.
Ms. Perlmutter: Then why did you release your hand brake?
Harvey: So the wheels wouldn't be sliding. Hopefully they would be turning, you
know. If you're sliding, that gives you very little control .... And so I released
my hand brake, the motor wa,s still in neutral, and: I had the throttle, trying to build
the air press1Q"e. I don't recall; the air pressure hadn't dropped to zero. It was
above 50, but it wasn't at full capacity. But in that scenario, with that many
people, you know, tlJ.e motor's moving, I-need air pressure. I'm on a grade. I
can't throttle and be in gear. I mean, if I'm throttling it in gear, you know, you're
creating speed, and that's the last thing I wanted to do.
Court: Okay. So you wanted to raise the air pressure by keeping it in neutral and
raci~g the engine .. Was that, what, for the sanders.?
.Harvey: That was to raise the rpm so I could safely use the sanders. l don't know
how fast-it would actually drop the air pressure ifl used the sanders without
raising the rpms. But I didn't want to take a chance, ifl did it and the wheels start
sliding, then that creates a whole other problem.
Court: Because if you dropped the air pressure, the automatic brake would
engage?
Harvey: If I got to 50 pounds, yes, sir....

3

The locomotive is left in gear when not in use to prevent free-wheeling. (Tr. 666-67).
Thus, when the Jeffrey began to move, Harvey shifted out of gear and into neutral before revving
the engine. Harvey testified that the Jeffrey remained in neutral until the collision. (Tr. 682).
33 FMSHRC Page 268

Ms. Perlmutter: And you said that would create a whole other problem.
Harvey: When the wheels are sliding, you have no control. I mean, it's hard to
stop a sliding motor.
(Tr. 665-69).
In sum, Harvey testified that his goal was to release the hand brake to prevent the
Jeffrey's wheels from locking so that it could be better controlled. In addition, he proceeded to
keep the Jeffrey in neutral in an attempt to raise the psi by revving the engine. This would ensure
adequate pressure for the sanders, as well as prevent the emergency brake from automatically
engaging if the air pressure fell below 50 psi.

Beckman began moving his Brookville forward without first ensuring that Harvey was
ready. Consequently, Beckman did not have the benefit of the braking assistance provided by a
Jeffrey that had sufficient psi pressure to utilize sanders· and to normally operate the hand brake.
While the Brookville train was proceeding down the grade, unbeknownst to Beckman, Beaver
and Sisler had stopped in the vicinity of the No. 3 chute, at the bottom of the teardown track, to
pick up pneumatic hoses for the longwall shields. (Tr. 679-81 ). Welch and Knox, who were
traveling immediately behind them, stopped safely between the No. 2 and No. 3 chutes.
Beckman, however, lost control of the motors, and was unable to stop before crashing into the
empty lowboy attached to the Jeffreys of Welch ·and Knox. Apparently angered because he
believed Harvey had not helped him to brake the paired locomotives, Beckman exited his
Brookville and yelled to Harvey, "do you think that's fucking fast enough?''4 As a result of the ·
collision, Beckman's Brookville landed on top of the empty lowboy. (Tr. 311).
Both Welch and Knox were injured in the collision. (Tr. 681-82). Knox sustained
shoulder injuries, but was not hospitalized. Welch, who was situated in the second Jeffrey
closer to the lowboy that was struck, experienced the brunt of the collision. (Tr. 524). Welch
was taken to the hospital for treatment, although the record does not reflect that his injuries were
serious. (Tr. 516-17).

4

Mettiki believes Beckman's excited utterance evidenced a cavalier attitude towards the
accident. Obviously, crashing into the lowboy was neither an intentional act, nor a pleasant
experience. A fair reading of this statement is that Beckman was expressing his displeasure with
Harvey because of his belief that Harvey failed to assist him in controlling the locomotives.
In fact, Mike Burch, Mettiki's general manager, conceded that Beckman's utterance was
motivated by Beckman's belief that, "Harvey in the Jeffrey didn't give him any assistance in
slowing down." (Tr. 951).
33 FMSHRC Page 269

· iv. Mettiki' s Investigation
Mine management conducted an investigation to determine the cause of the
September 9, 2008, collision. Immediately after the accident James Bateman, the afternoon
shift foreman, observed the track conditions in the teardown area. Bateman determined that, with
the exception of 15 feet of shiny rail just beyond the No. 1 chute, "there was no wet or muddy
conditions .... [T]he track was dry and well sanded." (Tr. 517-18). Bateman initially testified
that this shiny rail corroborated Harvey's story that Beckman dragged him when the train first
started moving until Harvey released his brake. However on cross-examination, Bateman
acknowledged that the shiny rail could also.have been created when Beckman moved the train
forward to let the mule pass through the No. 1 chute. (Tr. 528-29, 561-62).
At the end of the afternoon shift, Bateman began collecting statements from the
locomotive.operators who had been working at the time of the accident. Bateman interviewed
eight of the nine motor operators who were on duty. (Tr. 523). The only motor operator who
was unavailable was Welch who was at the hospital. (Tr. 523-24).
Harvey told Bateman that after he had just returned to the Jeffrey, after looking for a
boomer to attach to the hoist, the motors started moving before he was positioned in the
operator's compartment. As a consequence, Harvey related to Bateman that he immediately had
to start the Jeffrey motor in order to release the.brake. (Tr. 524). Beckman told Bateman that he
thought Harvey "was ready to go" although he now realized that Harvey ''was not ready to go."
(Tr. 525). Beckman told Bateman that the collision occurred because "they were going too fast,"
although Beckman did not express an opinion regarding who was at fault. (Tr. 525-26).:
Bateman completed his interviews during the early morning hours of September 9, 2008.
At ttial, Bateman was requested to explain his·conclusion regarding the cause of the accident.
Bateman testified:
Bateman:. My conclusion was that Mr. Beckman did not wait for Mr. Harvey to
get in his motor before - or his motor was in motion before Mr. Harvey was ready
to go. They dropped down off of the grade and struck the lowboy that was parked
between No. 2 and No. 3 chute.
Ms. Perlmutter: Is there anything that Mr. Harvey could have done differently?
Bateman: Been ready to go.
(Tr. 540).

33 FMSHRC Page 270

Bateman provided his investigation notes to Frank Sanders, manager of underground
operations. Sanders and safety director Terry Savage continued to investigate during the next
five days. They reviewed the Brookville's maintenance records and concluded that the accident
was not caused by a mechanical malfunction. They also determined that the Jeffrey had no
mechanical problems that contributed to the accident. (Tr. 782, 867).
Together Sanders and Savage conducted approximately ten additional interviews,
questioning some individuals more than once. (Tr. 771-72, 882-83). The day after the accident,
during the afternoon shift on September 10, 2008, Savage and Sanders interviewed numerous
miners including Bateman, Fitzgerald, Beckman, Harvey and Knox. (Tr. 771-72). They also
interviewed eye witnesses who were near the teardown track who observed the motors moving
before Harvey was fully in the operator's deck of the Jeffrey. (Tr. 861 ). They also learned that
some motor operators were uncomfortable working in tandem with Beckman because he did not
give them enough time to check their equipment before getting started.
Savage testified that Knox, in particular, expressed his desire not to be paired with
Beckman because of his conduct on the rail. (Tr. 772-73). Sanders testified that in addition to
Knox; Harvey and Welch also complained about Beckman running at high rates of speed, and
Beck.man's refusal to stop for sand to refill the sanders. (Tr. 860). As a result of their interviews,
consistent with the procedures outlined in Mettiki's Employee Handbook for a major offense,5
Beckman was suspended pending completion ofMettiki's investigation. (Resp. Ex. 3, p.7).
An investigation committee was created to determine Beckman's fate. (Tr. 957). The
committee consisted of Mike Burch, the general manager, Sanders, manager of underground
operations, Savage, safety director, and Horace Joseph ("Jody") Theriot, ID, manager of safety
and human resources. Savage summarized the committee's conclusion with respect to the cause
of the accident. ·Savage testified:
Yeah, late in the investigation. I mean I don't know exactly what day it was out of
those five days. It was sometime during that investigation, we determined that
what had happened was, Harry was running the lead motor. He was in charge of
that trip. He took off before Mr. Harvey was ready. Actually before the Jeffrey
locomotive was even started, the engine was started on it, it started to move. The
distance it traveled gave very little time for Mr. Harvey to react. By the time
Harry figured out what was going on, it was little time for him to stop it. And
there was already 11 tons of steel, rolling stock steel, going down the rail that was
- couldn't stop.
(Tr. 774).

5

"A major offense is a violation of the Rules of Conduct or the law which may directly
and seriously affect safety or the operations .... A major offense can result in termination even if
it is a first offense." Among the examples of a major offense is: "[u]nsafe acts or practices which
endanger life or property." (Joint Stip. 10, 11; Resp. Ex. 3, p.6) (emphasis in original).
33 FMSHRC Page 271

As noted above, Bateman who performed the preliminary investigation, also concluded
the cause of the accident was Beckman' s failure to make certain that Harvey was ready before
Beckman moved his Brookville forward. (Tr. 540). Although Bateman stated that "it was not
my decision to make," he apparently believed that termination was too harsh ofa sanction.
(Tr. 568-79). However, Bateman did not believe that Beckman' s longstanding participation as a
miners' representative, or past safety complaints, influenced the company's conclusion that
Beckman's misjudgment was the underlying cause of the accident. (Tr. 548..-49).
The investigation committee ultimately recommended the termination of Beckman.
Savage summarized the reasons for the committee's recommendation:
It was a very hard recommendation for all of us to make. There was a lot of
thought that went into that process. It got down to Harry's conduct at the time of
the accident, leading up to the accident, the way he'd acted and interacted with the
other motor operators, and his response at the end of the accident, where he
jumped off the locomotive and said, is that fast enough? And he didn'ttake """'."he
acted in disregard of people's safety. He took off before Mr. Harvey was ready.
.. He wasn't remorseful at the end of the accident. Only to say was that fast
enough? He didn't take consideration that maybe someone was hurt, and there
were two individuals that were injured at that time. Just those facts alone right
there, that he was not remorseful for what he'd done, and he never took
responsibility during the whole course of the interviews, that he'd done anything
wrong. . . . Harry said that he thought he was being pushed. He didn't know why
he couldn't stop. He didn't know what Mr. Harvey was doing. But he never
checked with Mr. Harvey to see what he was doing, or never asked Mr. Harvey if
he was ready to go.

(Tr. 775-76).
Consistent with the committee's recommendation, Beckman was terminated on
September 15, 2008. The reason given for Beckman's termination was that he committed a
major offense under the Code of Conduct. (Joint Stip. Nos. 1.5, 16). Consistent with Bateman's
opinion, both Savage and Sanders testified that neitherBeekman's service as a miners'
representative nor his safety related complaints were factors in Beckman's discharge. (Tr. 54849, 774, 777, 867-68);

33 FMSHRC Page 272

III. Further Findina:s and Conclusions
a. Analytical Framework
Section 105(c) of the Mine Act prohibits discriminating against a miner because of his
participation in safety related activities. Congress provided this statutory protection to encourage
miners "to play an active part in the enforcement of the Act" recognizing that, "if miners are to
be encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation." S. Rep. No.
95-181, at 35 (1977), reprinted in Senate Subcomm. on Labor, Committee on Human Res.,
Legislative History ofthe Federal Mine Safety and Health Act of 1977 at 623 (1978). It is the
intent of Congress that, "[w]henever protected activity is in any manner a contributing factor to
the retaliatory conduct, a finding of discrimination should be made." Id. at 624.
The Secretary has the burden of proving a prima f acie case of discrimination. In order to
establish a prima facie case, the Secretary must establish that Beckman engaged in protected
activity, and that Beckman's September 15, 2008, discharge was motivated, in some part, by that
activity. See Secy ofLabor on behalf ofPasula v. Consolidation Coal Co., 2 FMSHRC 2786,
2797-2800 (October 1980) rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall,
663 F .2d 1211 (3d Cir. 1981 ); Secy of Labor on behalf ofRobinette v. United Castle Coal Co., 3
FMSHRC 803, 817-18 (April 1981);
Mettiki may rebut a prima facie case by demonstrating, either that no protected activity
occurred, or, that Beckman's termination was not motivated in anypart by his protected
activity. Robinette, 3 FMSHRC at 818 n.20. Mettiki may also affirmatively defend
against a pdma facie case by establishing that it was also motivated by unprotected activity,
i.e., Beckman's accident, and that it would have taken the adverse action for the unprotected
activity alone, See also Jim Walter Resources, 920 F.2d at 750, citing with approval Eastern
Associated Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford
Constr. Co., 732 F.2d 954, 958-59 (D"C. Cir. 1984); Boichv. FMSHRC, 719 F.2d 194, 195-96
(6th Cir. 1983) (specifically approving the Commission's Pasula-Robinette test).
The Secretary contends that Beckman's protected activities were a motivating factor
in Mettiki' s decision to terminate Beckman immediately after his involvement in the
September 9, 2008, locomotive accident. The protected activities identified by Beckman that
allegedly influenced Mettiki's decision are: (1) Beckman's longstanding participation as a
miners' representative; (2) his April 17, 2007, complaint concerning high water encroaching
track rail that rendered sanders used for traction and braking inoperative; and, (3) his subsequent
March 15, 2008, complaint reiterating his concern for the hazard posed by high water on tracks,
as well as the need for additional track ballast.
While Mettiki freely admits that it had knowledge of these protected activities, it
contends that they played no role in Beckman's discharge. Rather, Mettiki asserts that its

33 FMSHRC Page 273

accident investigation that revealed Beckman was at fault, and Beckman's reticence to accept
responsibility, are the sole motivating factors that influenced its decision.
b. Mettiki' s Claimed Business Justification
Beckman was terminated immediately following the September 9, 2008, locomotive
accident. The Secretary, in essence, contends that Mettiki' s claimed rationale for terminating
Beckman is an insincere attempt to hide its discriminatory motive. Alternatively, the Secretary
argues that, even ifMettiki was motivated by Beckman's role in the accident, Mettiki was
also motivated, at least in part, by Beckman's protected activity. Nevertheless, the
September 9, 2008, accident was serious in that it resulted in the injury of two miners,
one of whom required hospital treatment.
The parameters for analyzing a claimed business justification for disciplining a miner
who has brought a discrimination claim before this Commission· are well settled. fu this regard,
the "Commission does not sit as a super grievance board to judge the industrial merits, fairness,
reasonableness, or wisdom of an operator's employment policies except insofar as those polides
may conflict with rights granted under section 105(c) of the Act." Delisio v. Mathies Coal Co.,
12 FMSHRC 2535, 2544 (Dec. 1990) (citations omitted).
The Commission has addressed the proper criteria for considering the mt!fits of an
operator's asserted business justification:
Commission judges must often analyze the merits of an operator's
· alleged business justification for the challenged adverse action. fu ·
appropriate cases, they may conclude that the justification is so
weak, so implausible, or so out ofline with normal practice that it
was mere pretext seized upon to cloak the discriminatory motive.
The Commission and its judges have neither the statutory charter
nor the specialized expertise to sit as a super grievance or
arbitration board meting out industrial equity. Once it appears that
a proffered business justification is not plainly incredible or
implausible, a finding of pretext is inappropriate. We and our
judges should not substitute for the operator's business judgement
our views on "good" business practice or on whether a particular
adverse action was 'just" or "wise." The proper focus, pursuant to
Pasula, is on whether a credible justification figured into the
motivation and, if it did, whether it would have led to the adverse
action apart from the miner's protected activities.

Secy ofLabor o!b/o Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2516-17 (Nov: 1981)
(citations omitted), rev'don other grounds, 709 F.2d 86 (D.C. Cir. 1983).

33 FMSHRC Page 274

The Commission subsequently further explained that, while a proffered business
justification must be facially reasonable, it is not the role of the judge to substitute his or her
judgement for that of the mine operator. The Commission stated:
[T]he reference in Chacon to a "limited" and "restrained"
examination of an operator's business justification defense does
not mean that such defenses should be examined superficially or be
approved automatically once offered. Rather, we intended that a
judge, in carefully analyzing such defenses, should not substitute
his business judgement or a sense of "industrial justice" for that of
the operator. As we recently explained, "Our function is not to
pass on the wisdom or fairness of such asserted business
justifications, but rather only to determine whether they would
have motivated the particular operator as claimed."

Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982) (citations omitted).
Mettiki has stipulated that, other than Beckman, no miners have been suspended or
terminated for safety violations since the Mountain View Mine opened in July of2005. (Tr. 907).
Thus, the Secretary seeks to rely on Mettiki' s failure to impose disciplinary sanctions for other
accidents at Mountain View to demonstrate that Beckman was the victim of disparate treatment
as a consequence of his protected activities.
The Secretary relies on two locomotive accidents, both involving similar facts, that
occurred before and after Beckman's discharge. The first accident, involving Beckman, occurred
during the afternoon shift on June 6, 2008. (Gov. Ex. 14). On that day, Jason KeJly operating a
trailing Brookville, and Beckman operating a paired Jeffrey with two empty ballast cars in tow,
were assigned to transport the ballast cars to the surface via the hoist track. At the bottom of the
hoist track, Kelly and Beckman decided to decouple the Brookville locomotive. They attempted
to push the empty ballast cars with the Jeffrey up to the middle of the hoist track where the hoist
coupler was located.
While traveling up the track, the Jeffrey locomotive broke traction and stopped. Kelly
exited the Jeffrey to hand sand the outby rail. The Jeffrey again lost traction and traveled back
down the hoist track colliding with the Brookville that had been decoupled. The collision
resulted in the derailing of both ballast cars and one end of the Jeffrey locomotive. During the
June 9, 2008, accident investigation, Beckman stated that he had previously experienced a
run,away locomotive when a motor broke traction and traveled to the end of the hoist track.
(Gov. Ex. 14). Despite Beckman's involvement in the accident, and a prior similar incident, he
was not disciplined in anyway as a result of his runaway Jeffrey. (Tr. 421).

33 FMSHRC Page 275

A second similar accident, involving Josh Surguy, occurred subsequent to Beckman's
discharge. On May 7, 2009, Surguy lost control of his locomotive as it broke traction climbing
the elevated hoist track. (Tr. 810-11; Gov. Ex. 16). Although both accidents involved collisions,
the Beckman and Surguy hoist track accidents did not result in injuries.
Neither Beckman nor Surguy were disciplined because it was determined that it was not
uncommon for locomotive operators to attempt to climb the hoist track to reach the coupling
device that had failed to descend from the flat area of the track. After the Surguy accident,
additional weight was added to the hoist line to provide inertia that prevents the line from
becoming stuck at the flat portion of the elevated hoist track. (Gov. Ex~ 15).
The Secretary also relies on an incident involving Doug Lewis. The incident occurred on
September 5, 2007, when Doug Lewis was observed by a mine inspector welding pieces of a
continuous miner ripper head while he was exposed to the elevated boom. As a result of this
incident, Citation No. 6602799 was issued citing a violation of the mandatory safety standard in
30 C.F.R. § 75.1 726(b) that prohibits working under machinery that has not been securely
blocked. (Gov. Ex. 17). Lewis was not disciplined as a result of this incident.
The Secretary seeks to infer that Beckman's discharge constitutes disparate treatment
because no one had. been previously discharged as the result of an accident at Mettiki' s Mountain
View Mine. However, to be successful, a claim of disparate treatment requires a showing that
another employee who was guilty of the same or more serious offense escaped the disciplinary fate
suffered by the complainant. See Dreissen v. Nevada Gold.fields, Inc., 20 FMSHRC 324, 332 n. 14
(Apr. 1998) citing Schulte v. Lizza Indus., Inc. 6 FMSHRC 8, 16 (Jan. 1984); Chacon, 3 FMSHRC
at 2512.
In other words, analysis of the claimed justification for disciplinary action against a miner
who was involved in an accident, who now is claiming discrimination, must be viewed in the
contexr of the particular circumstances surrounding the accident Put another way, apples must be
compared to apples. Thus, the Secretary's attempt to equate the hoisting accidents, and Lewis'
exposure under unblocked equipment, to Beckman' s collision on the teardown track is an exercise
in futility. 6

6

The Secretary also relies on Show's testimony that there were additional incidents of
runaway locomotives that did not result in disciplinary actions. (Tr. 163-64). However, no
evidence concerning the details of these accidents was presented. Consequently, these reported
incidents do not constitute evidence of disparate treatment.

33 FMSHRC Page 276

Beck:man's accident resulted in injuries. Although reasonable people may differ as to
whether it was Beckman or Harvey who was primarily responsible for the accident, the company
asserts that its investigation revealed that Beckman was at fault. The company's conclusion
was based on information provided by Beckman and Harvey, as well as the observations of
eye witnesses. As previously noted, this Commission does not have the authority to act as an
arbitration or grievance board. Chacon, 3 FMSHRC at 2516-17. Thus, in the absence of any
evidence of bad faith, the conclusions reached by Mettiki as a result of its investigation are not
subject to review in this.proceeding.
Rather, the narrow focus is on whether the mine operator's claimed justification is
credible, and, if so, whether the adverse action would have been taken by the company regardless
of whether the complainant had engaged in protected activity. Id. Consequently, the only issue
for resolution is whether Mettiki's claim that it discharged Beckman because of his role in the
September 9, 2008, accident is sincere, rather than an attempt to mask discrimination. The fact
that Beckman was the first person to be terminated after an accident at Mountain View, alone,
does not provide an adequate basis for concluding that the company's claimed justification is a
disingenuous attempt to conceal a retaliatory motive.
c. Hostility Towards Protected Activity
Having concluded that Mettiki' s claimed business justification is plausible, the focus
shifts to whether Mettiki was also influenced, in any way, by Beckman's protected activity.
The Commission recognizes that mine operators sometimes attempt to mask their retaliatory
motives by purportedly relying on activity or events unrelated to the Mine Act as the sole
justification for the adverse action complained of. Chacon, 3 FMSHRC at 2516-17.
Direct evidence of a discriminatory motive is rare. Thus, in determining whether Mettiki's
decision to terminate Beckman was also based, in any part, on a hostility towards Beckman' s
protected activities, the Commission looks to indirect or circumstantial evidence of
discrimination. In this regard, the Commission has stated:
[D]irect evidence of motivation is rarely encountered; more typically, the only
available evidence is indirect .... 'Intent is subjective and in many cases the
discrimination can be proven only by the use of circumstantial evidence.'

Chacon, 3 FMSHRC at 2510 (quoting NLRB v. Melrose Processing Co., 351F.2d693, 698
gm Cir. 1965). Some of the more common circumstantial indicia of discriminatory intent are
knowledge of the protected activity, coincidence in time between the adverse action and the
protected activity, hostility or animus towards the protected activity, and disparate treatment of
the complainant Id.

33 FMSHRC Page 277

I. Knowledge of Protected Activity
And Coincidence in Time
In this case, the only material circumstantial indicia clearly demonstrated by the
Secretary, which Mettiki admits, is Mettiki's knowledge of both Beck:man's participation as a
miners' representative, and his April 17, 2007, and March 15, 2008, safety related complaints.
With respect to coincidence in time, the lynchpin of many discrimination complaints,
there is an insufficient nexus between the relied upon protected activity and the adverse action.
The Secretary relies on Beckman's longstanding participation, during his 28 years as a Mettiki
employee, as a representative of miners at both ofMettiki's mines, including his accompaniment
ofmine inspectors in the months prior to his termination. Specifically, the Secretary, in her
post-hearing brief, notes that Beckman served as a miners' representative seven times during the
period from November 2007 until his last participation on August 5; 2008. (Sec'y Br. at 10).
However, to demonstrate that there is indirect evidence of a discriminatory motive with
respect to coincidence in time requires a rational connection between Beck:man's participation in
inspections and his termination. See Garden Creek Pocahontas, 11 FMSHRC 2148, 2153 (Nov.
1989) citing Mid-Continent Resources, Inc., 6 FMSHRC at 1132, 1138 (there must be a rational
connection between the evidentiary facts and the adverse action complained of). Frequent
participation as a miners' representative, alone, does not give rise to a coincidence in time
inference of discrimination when the representative istei:minated immediately after engaging in
tinprotected activity. fu such cases, an inference of discrimination requires credible evidence of
hostility towards the complainant's role as a miners' representative. Here, there is no credible
evidence of hostility towards Beckman's activities as a miners' representative.: By his own
admission, Beckman had been a miners' representative for many years. Moreover, Mettiki
permitted Beckman to substitute as a miners' representative when other miners declined to travel
with inspectors.
Nor are Beck:man's April 17, 2007, and March 15, 2008, complaints circumstantial
evidence of a discriminatory motive with respect to coincidence in time. These complaints,
having occurred approximately seventeen months and six months prior to Beck:man's
termination, without evidence of any material intervening hostility, are too remote in time to
reflect a causal connection. Id. Consequently, the Secretary has failed to deinonstrate a
coincidence in time between Beckman's protected activities and his discharge that constitutes
indirect evidence of discrimination.
ii. Animus
With regard to Mettiki's alleged animus toward miners' representative participation,
the Secretary has presented nothing more than speculation without evidentiary support.
For example, in her brief, the Secretary questions the propriety ofMettiki's miners'
representative rotation system that consisted of 19 registered miners' representatives. These
representatives were supposed to accompany inspectors on a rotating basis. It was not

33 FMSHRC Page 278

uncommon for these representatives to decline to accompany an inspector. Consequently, the
Secretary infers that Mettiki "recruit[ed] miners' representatives who they knew would decline to
travel [with inspectors], but whose inclusion on a shift's roster of miners' representatives would
reduce the frequency with which bona fide miners' representatives could travel." (Sec. Br. 13).
There is no record evidence to support such speculation.
Richard Show, currently an MSHA inspector, last worked for Mettiki on April 1, 2005.
Show's testimony concerning Mettiki' s attitude towards miners accompanying inspectors was
equivocal. Show testified that Mettiki management was "open to people traveling with
inspectors," but he also opined that Mettiki neither encouraged nor discouraged miners'
representative participation. (Tr. 85). Show initially testified that other miners' representatives
were not asked if they wanted to accompany an inspector when the scheduled representative
declined to travel. However, on cross examination, Show testified that the representatives
decided among themselves who would travel when an inspector arrived at the mine.
(Tr. 87, 169-70).
Moreover, Show's contradictory testimony that substitutes were not encouraged is belied
by Beckman's testimony that he frequently accompanied inspectors when others declined.
(Tr. 256). In fact, Beckman testified that he traveled with both state and federal inspectors,
sometimes as often as three days in a row. (255-56). Thus, there is no evidence that Mettiki had
a policy of interfering with the rights of miners to accompany an inspector,
The Secretary also relies on Show's testimony to suggest that Mettiki has a history of
discriminating against miners who were representatives. However Show could offer no
meaningful evidence of past discrimination. In this regard, Show testified·that, in the past,
several individuals who were miners' representatives were terminated by Mettiki. However,
Show did not provide the names of these individuals. Moreover, Show admitted that their
terminations were not necessarily motivated by their activities as miners' representatives.
In fact,· Show conceded that there were "a lot of circumstances [behind their terminations] that
[I didn't] know about." Finally, Show testified that he did not experience any discrimination
as a result of his role as a miners' representative while employed by Mettiki. (Tr. 85-93).
· Significantly, even Beckman conceded that he never experienced any tangible discrimination as a
result of his miners' representative activities, alleging "[i]t was just, you know, the expressions
they made .... " (Tr. 263-64). Finally, it is noteworthy that Beckman's previous hoist track accident occurred on
June 6, 2008, after Beckman's safety complaints to Savage and Krieser. Beckman was not
disciplined as a result of this accident. Mettiki's failure to discipline Beckman, when it had the
opportunity, seriously undermines the Secretary's assertion that Mettiki harbored animosity
towards Beckman because of his role as a miners' representative or his history of safety
complaints.

33 FMSHRC Page 279

In fact, the Secretary's counsel concedes that there is no significant evidence of animus in
this case:
I'll just come right out and say, there's not a lot of evidence of animus in the case:
There is some evidence of animus in this case. Evidence of animus is not
required. In fact, the direct evidence of animus is expressly recognized as very
rarely encountered in retaliation cases. What we're looking at is the totality of the
circumstances.here, whether or not - and I'm sure we'll have an argument in a
little bit about whether or not we've made our prima facie case. And I can reserve·
all of this until then.
(Tr. 280; Sec'y Br. at 42).
The Secretary's reliance on inference is misplaced. In effect, the Secretary attempts to
infer animus in response to protected activity, rather than demonstrating evidence of animus to
support an inference of discrimination. Thus, the Secretary has impermissibly bootstrapped an
unsubstantiated inference of animus to infer Beckman was the victim of discrimination.
The Secretary seeks to assume a company animus toward~ Beckman because he engaged
in protected· activity. The Secretary further seeks to use this unsubstantiated inference of animus
to arrive at an inference of a discriminatory motive . .The Secretary's approach begs the issue.
Contrary to the Secretary's assertion, evidence of animus is required. As the proponent bearing
the burden of proof, the Secretary must establish the presence of animus by material evidence
before animlls. can serve as indirect evidence of discrimination. The Secretary has failed to do so
as an unsupported inference of animus will not suffice. 7
.
iii. Disparate Treatment
The Secretary asserts that Mettiki's responses to Beckman's safetyrelated complaints
evidence disparate treatment because they were "punitive " in nature and "revealed [a] disdain
for safety related complaints." (Sec'y Br. at 43). To support this assertion the Secretary
relies on the following: (l) Savage's April 17, 2007, e-mail to mine management identifying
Beckman as the source of a track water complaint; (2) the assignment of Beckman, with. the
assistance of a contract employee, to remove the subject water hazard during the next
maintenance shift on April 18, 2007; and (3) Krieser's March 19, 2008, written response to
Beckman's track water and ballast complaints.

7

.The Secretary's reliance in her brief on Sec

'.Y olb!o Garcia v. Colorado Lava,

24 FMSHRC 350, 354 (Apr. 2002) for the proposition that it is permissible to infer an
operator's animus because of protected activity is misplaced. (Sec'y Br. at 42). The
Commission, in Colorado Lava, merely reiterated its longstanding view, articulated in Chacon,
that discrimination can be shown through indirect evidence such as disparate treatment,
animus and coincidence in time, all of which are lacking in this case. Id. at 354. Thus, indirect
evidence of discrimination must be shown and may not be presumed.

33 FMSHRC Page 280

It is not uncommon for mine operators to keep written safety related records that identify
potential hazardous conditions that require remedial action. These records, such as pre-shift
inspections of equipment, and pre-shift and on-shift examination reports of underground
conditions, routinely contain the names of the individuals who seek corrective measures. Savage
testified, without contradiction, that it was company policy to provide written notification to all
concerned members of management summarizing safety complaints and their origin to ensure
that all complaints were adequately addressed. (Tr. 760-62). Such written notification to
management containing the nature and source of safety complaints, alone, is not facially
discriminatory.
As a general proposition, assigning the miner who identified a hazardous condition to
remedy the condition does not constitute disparate treatment provided that the assignment is
consistent with that miner's routine job duties and the work assignment is not part of an ongoing
pattern of retaliation. Here, Beckman has conceded that track maintenance was within the scope
of his job duties in that he had remedied track conditions in the past. (Tr. 342). There is no
evidence of a continuing pattern of undesirable job assignments or other facts that would suggest
that Beckman was the victim of retaliatory disparate treatment. Consequently, the timely
assignment on the next maintenal)ce shift of Beckman, a maintenance worker, to remedy the
water conditions that were the subject of his complaint, without more, is not indirect evidence of
a retaliatory motive.
Nor is Kreiser's March 19, 2008, written response to the safety issues raised by Beckman,
concerning track water and ballast, evidence of disparate treatment. Rather, Kreiser' s response
demonstrated that Beckman's complaints were taken seriously, and, Krieser encouraged
Beckman to inform management of any future safety related conditions that may concern him.
Significantly, Bateman testified that neither Beckman's longstanding participation as a
miners' representative, nor his past safety complaints, influenced Mettiki' s accident investigation
that determined that Beckman's misjudgment was the underlying cause of the accident.
(Tr. 548-49). Bateman's opinion is entitled to great weight in that he is, in essence, a friendly
witness who apparently believed that Beckman' s termination was too harsh of a sanction.
(Tr. 568-79).
Metttiki has stipulated that, with the exception ofBeckman's negligent operation of
locomotives, it considered Beckman's work performance to have been more than adequate.
(Tr. 985). While Beckman's discharge after 28 years ofMettiki employment may be unfortunate,
the scope of this discrimination proceeding is narrow. As previously noted, the issue is not whether
Mettiki's disciplinary action was just or wise. Chacon, 3 FMSHRC at 2516-17. Rather, the only
issue is whether Mettiki's asserted motivation for discharging Beckman, for unprotected conduct
alone, is as claimed.

33 FMSHRC Page 281

In the final analysis, to prevail, the Secretary must present adequate evidence
demonstrating that Mettiki harbored resentment towards Beckman' s safety related activities
that influenced, at least in part, Mettiki's decision to discharge Beckman. However, there is an
absence of meaningful evidence that Beckman was the victim of disparate or hostile treatment
during
long term participation as a miners' representative, or~ during the approximate
17 month period between his initial April 2007 complaint and his· September 2008 discharge.
Consequently, the Secretary has failed to demonstrate that Mettiki' s decision to terminate
Beckinan immediately following his September 9, 2008, locomotive accident
motivated, in
any part, by Beckman' s protected activities.

his

was

ORDER
In view of the above, IT IS ORDERED that the discrimination complaint filed
by the Secretary of Labor on behalf of Harry Lee Beckman IS DENIED. Accordingly,
IT IS FURTHER ORDERED that Docket No. WEVA 2009-1526-D IS DISMISSED.

Jerold Feldman
Administrative Law Judge

Distribution: (Regular and.Certified Mail)
Samuel Lord; Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West; Arlington, VA 22209
Willa B. Perlmutter, Esq., Crowell & Moring, LLP, 1001 Perinsylvania Ave, NW,
Washington, DC 20004
/jel

33 FMSHRC Page 282

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N. W., SUITE 9500
WASHINGTON, D.C. 20001
Telephone (202) 434-9977/ Fax (202) 434-9949

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

January 25, 2011
CNIL PENALTY PROCEEDING
Docket No. WEVA 2008-751
A.C. No. 46-01433-143260

v.

CONSOLIDATION COAL COMPANY,
Respondent

Loveridge No. 22

DECISION
Appearances: John Strawn, Esq. and Jennifer Klimowicz Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania, on behalf of the Petitioner;
Todd C. Myers, Esq. and Rebecca J. Oblak, Esq., Bowles Rice McDavid Graff &
Love LLP, Lexington, Kentucky and Morgantown, West Virginia, respectively, on
behalf of the Respondent.
Before:

Judge Melick

This case is before me upon the petition for a civil penalty filed by the Secretary of Labor
("Secretary") pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 301 'et seq. (the "Act") charging Consolidation Coal Company ("Consol") with seven
violations ofmandatory standards and seeking civil penalties of $49,600.00 for those violations. The
general issue before me is whether Consol violated the cited standards as charged and, if so, what
is the appropriate civil penalty to be assessed for those violations. Additional specific issues are
addressed as noted below.
Order Number 7099399
This order, issued pursuant to section 104(d)(2) of the Act, alleges a "significant and
substantial" violation of the standard at 30 C.F.R §75.400 and charges as follows 1:

Section 104 (d) of the Act provides as follows:
(1) If, upon any inspection of a coal or other mine, an authorized representative of the
Secretary finds that there has been a violation of any mandatory health or safety standard, and ifhe
33 FMSHRC Page 283

Combustible materials in the form ofloose coal, coal fines and coal
dust is allowed to accumulate on the mine floor and along the coal
ribs of the 9~South, 058-0 MMU section from SS# 3/115 to SS#
3/116. The combustible materials are powder dry. The combustible
materials measured as follows: (1) The accumulations along the right
rib of the #3 entrymeasured 6 to 12 inches deep by 18 to 24 inches
wide by 165 feet in length. (2) The accumulations along the left rib
of the #3 entry measured 6 to 14 inches deep by 23 to 44 inches wide
by 165 feet in length. (3) The accumulations along in the haulroad
from SS# 3/115 to SS# 3/116, located in the #3 entry, measured 1 to
6 inches deep by 165 feet in length. This condition is obvious,
extensive and the preshift examiner should have known of this
condition. The mine operator was previously put on notice for the
same type of condition. The mine operator has engaged in aggravated
conduct constituting more than ordinary negligence. This violation is
an unwarrantable failure to comply with a mandatory standard.
The cited standard provides that ..[c]oal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be

also finds that, while the conditions created by such violation do not cause imminent danger, such
violation is of such nature as could significantly and substantially contribute to the cause and effect
of a coal or other mine safety or health hazard, and if he finds su~h violation to be caused by an
unwarrantal?le failure of such operator to comply with such mandatory health or safety standards,
he shall include such finding in any citation given to the operator under this Act. If, during the same
inspection or any subsequent inspection of such mine within 90 days after the issuance of such
citation, an authorized representative ofthe Secretary finds another violation of any mandatory health
or safety standard and finds such violation to be also caused by an unwarrantable failure of such
operator to so comply, he shall forthwith issue an order requiring the operator to cause all persons
in the area affected by such violation, 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.
(2) If a withdrawal order with respect to any area in a coal or other mine has been issued
pursuant to paragraph (1) a withdrawal order shall promptly be issued by an authorized
representative ofthe Secretary who finds upon any subsequent inspection the existence in such mine
of violations similar to those that resulted in the issuance of the withdrawal order under paragraph
(1) until such time as an inspection of such mine discloses no similar violations. Following an
inspection of such mine which discloses no similar violations, the provisions of paragraph (1) shall
again be applicable to that mine.
33 FMSHRC Page 284

permitted to accumulate in active workings, or on diesel-powered and electric equipment therein."
On October 24th, 2006, Inspector Ronald Postalwait of the Department of Labor's Mine
Safety and Health Administration ("MSHA") inspected Respondent's Loveridge No. 22 Mine as
part of a five day spot inspection for methane pursuant to section 103(i) of the Act. The mine is a
large underground coal mine and, at the time of inspection, released in excess of one million cubic
feet of methane each day. Upon arrival, Postalwait reviewed the preshift examination book to
ascertain the conditions recorded by the examiners. He then entered the mine at approximately 8:00
a.m. and traveled to the 9 South Mains section accompanied by United Mine Workers of America
("UMWA") Safety Committee representative Tanya James and by Respondent's safety
representative Wayne Conaway.
Once on the section, Postalwait proceeded to the faces to conduct spot checks for methane.
While traveling between the No. 1 and No. 3 entries, he observed what he considered to be an
accumulation of coal in the No. 3 entry. The No. 3 entry was used as a haul road by shuttle cars
·transporting coal mined at the face by the continuous miner to the permanent belt. The material had
not been recorded in the preshift book. Postalwait determined that the accumulation against the ribs
had been created by the initial mining process rather than by rib sloughage or spillage from shuttle
cars. The coal had not been cleaned up and was left stacked against the ribs.
According to Postalwait, the accumulation consisted ofloose coal, coal fines, and coal dust
and was dry and black. Along the right rib he found the accumulation measured 6 to 14 inches deep,
23 t6 44 inches wide, and 165 feet in length. In the center of the entry in the haul road, he found the
accuniulation to be from 1 to 6 inches deep for 165 feet. James assisted Postalwait in measuring the
accumulation. I find that these observations by Inspector Postalwait to be fully corroborated by
James, and that this has established· by a preponderance of evidence that a substantial coal
accumulation existed in the No. 3 entry and that the Secretary has sustained her burden of proving
the violation as charged.
fu reaching this conclusion, I have not disregarded Respondent's claim that the accumulation
was not as large as the inspector described. However, neither the section foreman, Brandon Simpson,
nor Conaway protested to Inspector Postalwait at the time he issued the order that they disagreed
with his observations. Indeed, when Postalwait showed Simpson the accumulation, and stated that
he was issuing an order, Simpson did not dispute the existence of the accumulation or that it was a
violation. Simpson said only that he would have the accumulation cleaned up. Moreover, both
Respondent's witnesses conceded at trial that in fact there was an accumulation in the area cited and
Conaway admitted that he could not dispute the inspector's measurement of the length of the
accumulation.

The Secretary argues that the violation was also "significant and substantial." A violation
33 FMSHRC Page 285

is properly designated as "significant and substantial" if, based on the particular facts.surroundin~
that violation, there exists a reasonable likelihood that the hazard contributed to will result in ar
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), the Commissior
explained:
In order to establish that a violation of a mandatory standard is significant and
substantial under National Gypsum the Secretary must prove: (1) the
underlying violafam 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 injury and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.

See also Austin Power Co. v. Secy, ofLabor 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g
9 FMSHRC 2015, 2021(Dec.1987) (approving Mathies criteria).
The third element of the Mathies formula requires that the Secretary estabiish 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 (Aug. 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 1573,
1574 (July 1984); see also Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986); Southern Ohio Coal Co.,
13 FMSHRC 912, 916-917 (June1991).
The cr~ible testimony establishes a reasonable likelihood of a fire occurring because the
coal accumulation was extensive and ignition sources were present. As previously noted, an
accumulation of coal extended 165 feet in the No. 3 entry along both ribs and in the haul road in the
center of the entry. The ignition sources present in the accumulation were the trailing cables of the
electric face equipment and the electric and battery powered shuttle cars operating in the haul road.
Damage to the electrical components of the cables or the shuttle cars could cause them to
ignite the coal. · The 995 volt trailing cable for the continuous miner was laying in the accumulation
and was covered by the coal for approximately half its length. The 600 volt trailing cable for the
loading machine was also laying in the accumulation and was covered by the coal for approximately
halfits length as well. Shuttle cars on the roadwaytraveled directly through the accumulation. They
could create sparks either from their own trailing cables, if AC powered, or from their batteries if
DC powered.

As noted, the evidence shows that damage to the electrical components could occur in several
ways. The trailing cables could be damaged by being pulled tightly around corners or by being run
over by mobile equipment such as shuttle cars. The ensuing damage to the internal conductors is not
33 FMSHRC Page 286

always apparent from looking at the external cable jacket. Damaged internal conductors can cause
an arc which creates sparks and heat sufficient to ignite coal accUm.ulations. Indeed, Postalwait had
seen coal ignited by arcs created by trailing cables. Batteries in DC powered shuttle cars can also
be damaged or simply have a component fail and create sparks which can ignite coal.
The characteristics of the coal in the accumulation also heightened the risk of a fire.
Postalwait took samples _of the material in the accumulation which were analyzed and found to have
a very high combustible content, i.e. only 22% to 25% incombustible content. Moreover, the
accumulation was composed largely of dry fine coal, which the record shows is easier to ignite.
The likelihood of a fire occurring was also increased because of the time the condition was
allowed to exist. According to the credible testimony of Postalwait and James, the accumulation
existed for more than one shift and had not been reported in the preshift examination. No one was
attempting to clean up the coal when it was discovered by the inspector. In the course of continuing
mining operations it may reasonably be inferred that the accumulation would have remained in place
with the ignition sources present and that a fire was therefore reasonably likely to occur. See Enlow
ForkMiningCo,, 19FMSHRC 5, 9(Jan.1997); Texasgu,lf, Inc., 10FMSHRC498, 501 (Apr.1988).
The fourth prong of the Mathies test requires the Secretary to establish that the injury from
an occurrence will be of a reasonably serious nature. The extensive accumulation ofcoal cited herein
presents a significant amount of fuel for a fire. The Loveridge No. 22 Mine is a gassy mine and a
fire could result in an explosion. It may therefore be inferred that serious injuries such as from
smoke inhalation would be reasonably likely to occur. The record shows that during normal mining,
10 miners would be exposed to serious injuries including two roof bolters, the miner operator,
ventilation tube man, loader operator, shuttle car operators, and others who worked inby the
accumulation.and would be forced to evacuate in the event of a fire; It may reasonably be inferred
that miners attempting to fight a fire would also be exposed to serious injuries.

fu reaching these conclusions, I have not disregarded Respondent's argument that a fire was
less likely to occur because its ventilation plan provides for watering roadways as they are used by
mobile equipment and that its pre.shift/onshift reports show watering was performed in Entry No. 3.
However, Respondent was apparently not following its plan in Entry No. 3 because records show
that it was dry when Postalwait and James first observed it. They both also testified that the
accumulation was dry throughout its entire depth. Furthermore, Respondent's preshift/onshift
reports do not specify where the Respondent watered in the Entry No. 3 or even how close they came
to the accumulation. Finally, Respondent has demonstrated a pattern of failing to water its haul
roads in that it had been previously cited for failing to water its haul roads. James also testified
credibly that the union had previously reported to management to complain that the haul roads were
not being watered down.

33 FMSHRC Page 287

The Secretary further maintains that Respondent's negligence was high and its violation was
an "unwarrantable" failure to comply with the regulation. Unwarrantable failure involves aggravated
conduct constituting more than ordinary negligence. Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133,
136 (7th Cir. 1995) (quoting Emery Mining Corp., 9 FMSHRC 1997, 2001, 2004 (Dec. 1987)). This
Commission has held that an unwarrantable failure may be established by showing that a violative
condition or practice was not corrected prior to the issuance of a citation or order because of
"reckless disregard," "intentional misconduct," "indifference," or a "serious lack ofreasonable care."
Buck Creek, 52 F.3d at 136; Emery Mining, 9 FMSHRC at 2003-04. In analyzing an unwarrantable
failure violation, the Commission looks at all the facts and circumstances to see if any aggravating
factors exist. The Comniission has held that the length of time that the violation existed, the extent
of the violative condition, whether the operator was placed on notice that greater efforts were
necessary for compliance, the operator's efforts in abating the violative condition, whether the
violation was obvious or posed a high degree of danger, and the operator's knowledge of the
existence of the violation are all relevant to an operator's aggravated conduct. IO Coal Company,
Inc., 31 FMSHRC 1346, 1351 (Dec. 2009); Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July
2001).
I find that the credible evidence in this case demonstrates that Respondent in fact engaged
in aggravated conduct and high negligence. The credible evidence shows that the coal accumulation
was obvious, extensive, and .posed a high degree of danger to miners. It had also existed for a
significant length of time and despite being on notice to prevent such violations from occurring,
Respondent took no step to address the accumulation.
The testimony at trial established that the coal accumulation was obvious and extensive.
Postalwait and James could see the accumulation before theyreached it. The accumulation was
black and stood out from the white rock dusted ribs. The loose coal, coal fines, and coal dust also
extended over 165 feet along both ribs in Entry No. 3 and in the center of the roadway.
The inspector also determined that the accumulation had existed for some duration. When
coal is initially mined it is wet or damp. The accumulation, however, was dry throughout to the mine
floor. According to the inspector, it would have taken at least two shifts to have dried out to that
extent. James corroborated Postalwait's determination and stated further that the accumulation
could not have formed in one shift.
Respondent had also been.placed on notice that greater efforts were required to comply with
the regulation. Postalwait had previously cited Respondent for violations of 30 C.ER. § 75.400 in
the same section and had also admonished Respondent's management about the need to make greater
efforts to comply with the regulation. The record shows that Respondent had 108 violations of the
cited regulation which became final orders in the 12 months prior to the issuance of the subject
order.

33 FMSHRC Page 288

The accumulation also posed a high degree of danger to miners because of the threat of a
mine fire. Despite that danger, no one was cleaning the accumulation when Postalwait first observed
it and the condition had not even been reported in the preshift examination. See Consolidation Coal
Co., 23 FMSHRC 588, 594 (June 2001); Windsor Coal Co., 21 FMSHRC 997, 1001-04 (Sept.
1999).
Within the above framework of credible evidence, I find that the Secretary has met her
burden of proving that the violation was the result of Respondent's unwarrantable failure and high
negligence.

Order Number 7099401
This order, also issued pursuant to seGtion 104(d)(2) of the Act, alleges a "significant and
substantial" violation of the standard at 30 C.F.R §75.360(a)(l)and charges as follows:
The pre-shift examination for methane and hazardous conditions that was conducted
on October 24th, 2006, for the day shift crew on the 9-South, 058-0 MMU is
inad~quate in that the following conditions were observed by this inspector. Refer to
the following violations for the conditions found: (1) Violation number# 7099399
issued on October 24th, 2006. (2) Violation#7099400issuedon October 24th, 2006.
The listed conditions would be obvious to any prudent person especially an examiner
charged with the responsibility of conducting an examination of the mine. The mine
operator has engaged in aggravated conduct constituting more than ordinary
negligence. This violation is an unwarrantable failure to comply with a mandatory
standard. Eleven violations have been issued under section 75.360(a)(l) of the 30
CFR at this mine since July 10th, 2006.
The cited standard, 30 C.F.R § 75.360(a)(l), provides as follows:
Except as provided in paragraph (a)(2) of this section, a certified person designated
by the operator must make a preshift examination within 3 hours preceding the
beginning of any 8 hours interval during which any person is scheduled to work or
travel underground. No person other than certified examiners may enter or remain in
any underground area unless a preshift examination has been completed for the
established 8-hour interval. The operator must establish 8-hour intervals of time
subject to the required preshift examinations.
Inspector Postalwait opined that the preshift examination for the day shift on October 24th,
2006, was inadequate because it failed to record hazardous conditions i.e. a large accumulation of
coal of over 165 feet in the roadway and along both ribs of the No. 3 Entry in the 9 South Mains
section of the mine. As previously discussed in connection with Order No. 7099399, the
incombustible content of the accumulation was also low and there were potential ignition sources
33 FMSHRC Page 289

present.
Thepreshi:ft examination for this area was performed between 5:00 and 7 :00 a.m. on October
24th, 2006, by Rod Cummings, the section foreman on the preceding midnight shift. Cummings had
called out his report to the surface at 7 :20 a.m. before he exited the mine. Simpson, as the oncoming
shift foreman, received the call. The day shift began at 8:00 a.m. and there was no production on that
shift prior to the order being issued. The preshift report does not list any of the hazardous conditions
described in the order.
It may reasonably be inferred that the accumulation existed at the time of the preshift
examination based on fuspector Postalwait' s observations during his inspection and the admissions
by Respondent's witnesses. Postalwait found that the coal was dry throughout the accumulation to
the mine floor and, based on his experience, opined that it would have taken at least two shifts to
have dried to that extent from its initial mining. He further opined that the accumulation was created
in the initial mining process and not by spillage from shuttle cars or rib sloughage. Union
Representative James agreed with Postalwait that the accumulation had existed for more than one
shift and added that an accumulation of that magnitude could not have been formed in one shift.
The testimony of Respondent's witnesses at trial also establishes that the accumulation was
present during the preshift examination. Company representative Conaway testified that Foreman
Simpson told him that he was aware of the accumulation when he informed Simpson of the order.
fu addition, Simpson himself testified that the miner could advance 25 feet in a shift. Based on that
distance, it would have taken several shifts for the miner to create the cited 165 feet of accumulation.
Under the circumstances, I find that the violation has been proven as charged.

In reaching this conclusion, I have not disregarded Respondent's argument that since there
is no dispute that a preshift examination was conducted for the day shift on October 24th, 2006, there
was no violation as charged. It is arguing, in effect, that a preshift examination meets the
requirements of the cited standard even if the examiner overlooks or ignores extant hazardous
conditions. Such an "examination" would, of course, be useless or worse than useless because it
would create a false sense of safety.
fudeed, the Commission has determined that preshift examinations are fundamental in
assuring a safe work environment for the miners. Enlow Fork Mining Co., 19 FMSHRC 5, 15 (Jan.
1997); Buck Creek Coal Co., .17 FMSHRC 8, 15 (Jan. 1995). "The preshift examination is intended
to prevent hazardous conditions from developing." Id. The preshift examiner must look for all
conditions that present a hazard. Id. at 14. Given the obvious nature of the violation herein, I find
that a reasonably prudent person, familiar with the mining industry and the protective purpose ofthe
safety standard herein, would have recognized that this hazard needed to be recorded in the preshift
examination book. UtahPower&LightCo., 12FMSHRC965,968(Mayl990) ajf'd95I F.2d 292
(10th Cir. 1991). Accordingly, I find Respondent's argument herein to be without merit.
The Secretary maintains that the violation was also "significant and substantial." I find that

33 FMSHRC Page 290

the miners were exposed to a serious hazard due to Respondent's failure to record the accumulation
in the preshift examination. The miners on the oncoming day shift were not alerted to the presence
of the dangerous accumulation. As previously discussed, the coal accumulation was located in the
roadway and along the ribs with several ignition sources present, i.e. the trailing cables of the electric
face equipment and the electric and battery powered shuttle cars operating in the haul road.
The risk of a mine fire was also heightened because of the high combustible content of the
accumulation, the small coal particle size, and its dryness. The likelihood of a fire occurring was
further increased due to the length of the time the condition was allowed to exist. If mining
operations were allowed to continue, the accumulation would have remained in place unreported
with the ignition sources present. A fire was reasonably likely to occur under the circumstances with
the reasonable likelihood of serious injuries. The violation was therefore "significant and substantial"
and of high gravity.
The Secretary also argues that the Respondent's failure to record the hazards constituted an
unwarrantable failure to comply with the regulation, noting that Respondent's examiners are its
agents and their failure to report the accumulation is properly imputed to Respondent. The
accumulation was certainly obvious because of its size. It also presented a high degree of danger to
miners because of the threat of a mine fire. Most significantly, Conaway testified that foreman
Simpson admitted to him that he was aware of the accumulation when he informed him that the
order had been issued.
I find that Respondent was also on notice that it had to improve on its preshift examinations.
Respondent was cited for 11 violations of 30 C.F.R. 75.360(a)(l) in the three months before the
issuance of the subject order. In addition, eight violations of the regulation became final orders in
the 12 months prior to the order being issued. Further, I find that Respondent's examiners should
have exercised a heightened vigilance to find and report accumulations based on the number of prior
· 30 C.F .R. § 75.400 violations. Respondent had 108 violations of 30 C.F .R. § 75 .400 which became
final orders in the 12 months prior to the issuance of the subject order. Significantly, Inspector
Postalwait had previously cited Respondent for 30 C.F .R § 75.400 violations in the same section and
had also admonished Respondent's management about the need to make greater efforts to comply
with the regulation and that they might be subject to "section 104(d)(2)" orders for future violations.
Under the circumstances, I agree that the violation was the result of Respondent's unwarrantable
failure and high negligence.

Order Number 7100170
This order, also issued pursuant to section 104(d)(2) of the Act, as amended, alleges a
violation of the standard at 30 C.F.R §75.400 and charges as follows:

An investigation was conducted on November 20, 2006 pertaining
to a 103(g) complaint filed by miners. The allegation is that the

33 FMSHRCPage 291

14CM12 miner, approval #2G-3737A, operating on the 058-0
MMU, 9 South Mains Section has the oil tank leaking and was
placed back into service prior to the leak being repaired. An
inspection of the miner reveals that hydraulic oil is leaking from
the hydraulic oil tank compartment on the inside of the conveyor.
Four holes in the right side wall of the conveyor decking indicate
that oil is leaking from the hydraulic oil tank into the conveyor. Oil
was also·flowing·in a steady steam from the hydraulic manifolds
for the satellite frame on both sides of the miner. The vertical 3/8"
covers on the right side near the hydraulic pump motor are hot to
the touch. Hydraulic oil is also leaking from the hydraulic crossover hose from the valve bank in the operator's compartment to the
opposite side of the machine. These conditions have created an
accumulation of combustible material in the form of hydraulic oil
covering areas berieath the covers on both sides of the machine,
and along the cat frame and vertical covers along both sides of the
machine and in the operator's compartment. These conditions were
brought to the management's attention and management stated that
the leak would be repaired before the miner is.put back into
service. The minerwas returned to service on the Day Shift on
Thursday November 26, 2006. Maintenance records indicate that
repairs have been made to correct hydraulic leaks, but efforts have
not been effective. This is an unwarrantable failure to comply with
a mandatory standard, and constitutes more than ordinary
negligence, by placing the miner into service prior to repairing the
· leaking oil tank.

On November 9th, 2006, MSHA Inspector Jeremy Ross inspected the left side ofthe 9South
Mains sectjon of the subject mine, as part of a regular quarterly mspection. UMWA walkaround
representative Timothy Cox and Respondent's representative Wayne Conaway accompanied Ross
on the inspection. The continuous miner for the left side of the section was tagged out of service for
oil leaks and repairs on the left side cutter drum. Ross saw that oil had leaked down both sides of
the continuous miner, around the bolters, inside the operator's compartment, and on the deck. The
continuous miner operator on the section, Richard Barnhart, told Ross that the miner had been
"leaking oil pretty bad." Barnhart also stated that Respondent would put the miner back into service
without correcting the leaks because there was a hole in the hydraulic tank which was a difficult
repair. Conaway and Nathan Pratt, chief of maintenance and a second-level supervisor, assured
Ross that Respondent would repair the leaks before putting the continuous miner back into service.
On November 17th, 2006, a "section 103(g)" anonymous complaint was called in to MSHA' s
hotline. The caller reported that the left side continuous miner's oil tank was leaking and that it had
been put back into service "last night" without being repaired. The complaint also stated that
33 FMSHRC Page 292

"maintenance told Ross it would be fixed before they put it back into service." Ross testified that
the allegations in the hotline complaint were consistent with the statements made by Barnhart on
November 9th.
On November 20th, 2006, MSHA Inspector Maxwell traveled to the mine to investigate the
condition reported in the hotline complaint and to continue the mine's quarterly inspection. Robert
Smith, who was an inspector trainee at" the time, UMWA walkaround representative Timothy Cox,
and Respondent's representative Wayne Conaway accompanied Maxwell on the inspection.
Maxwell and Smith testified that, as they arrived at the 9 South Mains working section, they
immediately saw that the continuous miner was leaking a large amount of hydraulic oil. A steady
stream of oil approximately a foot wide and 1/8 of an inch deep was cascading down each side of
the continuous miner and had collected into a hu~ge pool on the mine floor. According to Maxwell,
the oil flowing down the sides of the continuous miner was clear, indicating it had been in the system
only briefly before leaking out. Oil was also leaking directly into the operator's compartment and
had formed a pool on the compartment floor. Maxwell opined that the oil that had accumulated
inside of the operator's compartment had been there for more than one shift as it had begun to
coagulate into a thick sludge. fu addition to the three obvious leaks on the outside of the continuous
miner, oil was leaking from four holes in the hydraulic tank into the conveyor. According to
Maxwell, the hydraulic oil used in the continuous miner is combustible but the temperature at which
it is combustible was not known. He described potential ignition sources as the electric cables and
components on the continuous miner.
When the inspection party arrived at the 9 South Mains working section, the continuous
miner was in operation at the face and had already mined approximately four feet of coal. No one ·
was working to correct the leaks . When the inspectors asked the operator to back the continuous
miner into the entry so they could inspect it, it ran out of oil before they could get it out of the face.
Within the above framework of evidence,. I find that the violation at issue has been proven
as charged. However, the level of gravity has not been established by the Secretary. She conceded
that injuries were ''unlikely" and, since the evidence shows that the hydraulic oil at issue was of a
slight flammability class, I can find but little gravity.
The Secretary maintains that the violation was the result of Respondent's high negligence.
Based on the credible evidence that Respondent allowed obvious and extensive leaks on the
continuous miner to go uncorrected for an extended period of time and allowed large amounts of
hydraulic oil to accumulate, I must agree. fudeed the credible evidence shows that Respondent was
aware that this continuous miner had multiple extensive leaks, yet failed to make reasonable efforts
to correct the condition until after the current order was issued. fudeed there is no dispute that a large

33 FMSHRC Page 293

amount of oil was "pouring" out of both sides of the continuous miner and into the operator's
compartment.
Credible evidence also shows that the leakage had continued through at least one onshift and
preshift examination after it had been returned to service on Friday, November 17. Statements made
to the inspectors by several miners working at the face during the November 20th inspection
confirm that the continuous miner had been in service for several days prior to the inspection, despite
the extensive leaks. The miners also told the inspection party that the continuous miner had been
using an unusually high quantity of oil since being returned to service.
More particularly, Joe Jimmie reported to the inspection party that he operated the continuous
miner on Friday, November 17th, 2006, the day it was put back into service. He stated that he put
six to eight cans of hydraulic oil into the continuous miner, but was only able to mine 40 feet before
it ran out of oil. Jimmie also stated on November 20th, that the continuous miner was ''pretty much
the same as it was last week" when he ran out of oil. Chuck Haught, section mechanic, also stated
to Inspector Maxwell that they had been replacing hoses periodically, but there were two major leaks
that they had notrepaired before returning the miner into service - one in the hydraulic tank, and one
in the operator's compartment. These statements at the time of the November 20th inspection are
consistent with the allegation in the "section 103(g)" complaint, made· at midnight on Friday,
November 17th, that the continuous miner had been put back into service without being repaired.
Both inspectors and Cox testified that the employees also stated they had reported the or1going oil
leaks to mine management. Nathan Pratt, Respondent's chief of maintenance, also testified that the
continuous miner had been using more oil than normal and had leaks for a little more than a month
prior to the issuance of the order at bar. Based on this credible evidence, it is clear that mine
management therefore knew that the left side continuous miner had been leaking large amounts of
oil for an extended period of time but failed to correct the leaks.
This evidence ofRespondent' s repeated failure to correct an obvious and extensive condition
of which it was aware clearly justifies unwarrantable failure and high negligence findings. In
reaching these conclusions, I have not disregarded Respondent's argument that reliance on the
hearsay statements of miners is misplaced. However, I find that the alleged hearsay testimony in
this case to have been reliable and probative. See Mid-Continent Resources, 6 FMSHRC 1132 at
1136(May1984). In this case, the statements made by the various miners during both the November
9th and November 20th, inspections and the "section 103(g)" complaint are consistent. They were
also based upon each miner's personal knowledge of the condition of the continuous miner. The
miners are also not parties to this litigation and it has not been shown that they have a direct stake
in the outcome. Furthermore, the miners' statements were made in front of management witnesses.
Respondent had every reason to challenge an inaccurate statement by the miners at the time but did
not do so. Finally, the number ofwitnesses who heard the out- of-court statements and the fact that
some had notes recording the statements, further adds to the accuracy of the statements.

33 FMSHRC Page 294

Respondent also argues that this violation should not be designated as an unwarrantable
failure because it engaged in a good faith effort to fix the continuous miner when it took it out of
service prior to November 9th. However, even assuming, arguendo, that Respondent made a good
faith effort to repair the continuous miner between November 9th and November 17th, this would
not excuse running the miner for six shifts between November 17th and November 20th when it was
leaking large quantities of oil without repairing it. Moreover, the evidence shows that Respondent
did not make a good faith effort to fix the continuous miner prior to putting it back into service.
Respondent claims it knew the miner was leaking, but did not know where the leaks were
coming from, despite their best efforts. However, Barnhart told Ross on November 9th, there was
a leak in the hydraulic tank. The "section 103(g)" complaint called in on November 17th, also stated
there was a leak in the hydraulic tank. Haught also stated to Maxwell that they were aware there was
a hole in the hydraulic tank that they had not repaired when they returned the miner to service. In
addition, when Inspector Maxwell terminated the order on November 22nd, it was after Respondent
finally welded the hydraulic tank.

Order Number 7100364
This order, also issued pursuant to section 104(d)(2) of the Act, alleges a "significant and
substantial" violation of the standard at 30 C.F.R § 75.400 and charges as follows:
Combustible materials in the form.ofloose coal, coal fines and coal dust is allowed
to accumulate along and under the 7-D IOngwall conveyor belt take~up roller at the
inby end of the take-up storage unit to appr~xii:nately 180 feet outby. The following
condi~ions were found by this inspector: (1) Combustible materials along both sides
ofthe inby end stationary take-up roller measured 20 to 22 inches deep by 3 feet wide
by 6 feet inlength. (2) Thirteen out of 18 bottom conveyor belt rollers are turning
in combustible materials. The listed combustible materials range from 3 feet to 6 feet
in width by 15 to 20 inches deep by 2.5 to 6 feet in length, these rollers are located
in an area 180 feet in length. (3) The bottom conveyor belt is also turning in the listed
accumulations. The listed combustible materials range from damp to powder dry, and
the accumulations around the belt rollers are powder dry. This condition is obvious
from the travelway along each side of the listed conveyor belt take.,.up storage unit.
The mine operator has engaged in aggravated conduct constituting more than
ordinary negligence. This violation is an unwarrantable failure to comply with a
mandatory standard.

On December 3rd, 2006, Inspector Postalwait returned to the subject mine as part of the
regular quarterly inspection. He was accompanied by Respondent's representative Eric Ernest, the
oncoming foreman for the December 3rd, 2006, midnight shift, and by UMWA Safety Committee
33 FMSHRC Page 295

representative Karen Hooper. Postalwait testified that as soon as he entered the area of the conveym
belt drive, he immediately saw accumulations of combustible materials along 180 feet of the belt
from the take-up storage unit outby. According to Postalwait the accumulations could be seen easily
from both sides of the belt. He testified that he touched the coal and found it to be dry where it was
packed around the bottom rollers and where the belt had been running in the accumulation.
Postalwait initially observed the condition from the "tight side" or the "off side" of the belt, the side
closest to the rib. After walking back along the walkway he found the accumulations to be even more
obvious.
According to Postalwait, there were 19 separate piles of coal, around the tak:eup unit and 18
bottom belt rollers over the 180 feet of belt. He testified moreover, that the stationary tak:eup roller
had up to 22 inches of coal accumulations around it and on either side of the storage tak:eup unit. He
testified that of the 18 conveyor belt rollers along the 180 feet of belt, all had accumulations of coal
underneath them. The coal measuring from three to six feet wide, two and. one half to six feet in
length, and 15 to 20 inches deep, some of which was packed around 13 ofthe bottom rollers. The
13 rollers had been turning in the coal and the bottom belt conveyor had also been running in the
accumulations. Postalwait thought the scraper had not been working properly and allowed small
particles of coal residue to remain on the bottom of the belt. The coal particles were being knocked
off the belt where they contacted the bottom rollers and they had accumulated over an extended
period of time. I find Postalwait' s testimony credible and that his observations dearly support a
violation as charged.
·

Respondent has argued that the only accumulation underneath the longwall conveyor belt
was mud and water. \Vith Postalwait' s 19 years ofunderground mining experience and his additional
experience With MSHA, I ain satisfieq that he has the expertise to know the difference between coal
and non-coal material. I therefore give his testimony the greater w:eight and find that Respondent,
indeed violated 30 C.F~R. § 75.400 by allowing combustible materials to accumulate under the.
longwall conveyor
belt. .
.
.
.
The Secretary maintains that the cited accumulations of coal along and underneath 180 feet
of the 7-D longwall belt constituted a "significant.and substantial'' violation of the cited standard.
I find that the first and second prongs ofthe Mathies test are both easily met: As noted, the extensive
accumulations cited by Postalwait were a violation of the cited standard. I further find that the
credible evidence demonstrates that this condition contributed to a discrete safety hazard in the form
of a belt fire hazard on the 7'-D longwall belt. I find that the Secretary has also established that there
was a reasonable likelihood that the hazard contributed to would result in an injtiry of a reasonably
serious nature under continued normal mining operations. As previously noted, I have found that
there were extensive accumulations of combustible materials at 19 separate points along 180 feet of
the 7-D longwall belt. Moreover, I find that these accumulations were in direct contact with
multiple ignition sources. The bottom conveyor belt was running in the accumulations and 13 out
of the 18 bottom rollers had accumulations packed around them. Friction between these potential
33 FMSHRC Page 296

ignition sources and the accumulations had already heated and dried out several inches of the coal
fines and coal dust in contact with them. Respondent does not dispute that rollers turning in
accumulations are a hazard, and should be corrected immediately. Indeed, its expert witness, Dr.
Pramod Thakur, testified that a defective roller or misaligned belt could cause an ignition of a coal
accumulation.
The expert deposition testimony of Michael Hockenberry also fully corroborates the
testimony of Inspector Postalwait that there had been enough frictional heating between the coal
accumulations and the rollers and belt to dry out the contacted accumulations. Hockenberry further
opined that the longer the :frictional heating continued, the greater the likelihood of a fire.
Hockenberry also agreed that accumulations composed of fine particles of coal also increased the
likelihood of a fire because small particles are easier to ignite.
Within this framework of credible evidence, including the extent of the accumulations, the
numerous ignition sources from the 13 encased rollers, the belt running in coal and frictional heating
by drying out the accumulations nearest to the rollers and belt, it is clear that a belt fire was
reasonably likely to occur. See Mid-Continent Resources, 16 FMSHRC 1218, 1222 (June 1994).

The fourth prong of the Mathies test requires that the Secretary show that the injuries
expected to result from the hazard will be of a reasonably serious nature. US. Steel, 6 FMSHRC at
1574. In this regard, there can be little dispute that a belt fire would expose miners to serious
injuries, including burns and smoke inhalation. Emergency responders and the miner stationed at the
take-up would also be exposed to such injuries. I find that the vioJation herein was therefore clearly
"significant and substantial" and of high gravity.

The Secretary also maintains that Respondent's negligence was high and the.violation was
the result of its unwarrantable failure to comply with the cited regulation. First, I credit the testimony
of Postalwait that the cited accumulations in the 7-D longwall conveyor belt entry were obvious and
in plain view. He observed the accumulations from both the "tight side" of the belt and the walkway
and they were obvious from both vantage points. He was even able to see from the walkway that the
accumulations were tightly packed around the rollers. As the inspector noted, the accumulations were
obvious because they were so extensive. The accumulations were present under every bottom roller
along 180 feet of belt and around the belt takeup storage unit. Moreover, 13 of the rollers were
packed in coal and the bottom belt was riding in coal. Indeed, to abate the order, Respondent had
multiple miners working three hours to clean the belt and the takeup storage unit. I also accept the
credible testimony ofPostalwait that Respondent allowed the accumulations to exist for a substantial
amount of time without ever correcting or even reporting the hazard. Indeed Postalwait. credibly
opined that the accumulations had existed for a minimum of six shifts. The accumulations also
posed a high degree of danger to miners. As previously noted, the coal was packed around thirteen
rollers and the belt was riding in it.

33 FMSHRC Page 297

Finally, Respondent was on notice ·that it needed to make greater efforts to preven
combustible materials from accumulating. Respondent had received 100 citations and orders fol
violations of the standard at issue which became final orders in the twelve months prior to th(
issuance of the order at bar. Indeed, Postalwait himself had previously cited Respondent for sucl
violations on belts, including the belt here at issue. Within the above :framework of evidence, I fine
that the Secretary has met her burden of proving that the violt,itio11 herein was the result oJ
Respondent's unwarrantable failure and high negligence.
Order Number 7100365

This order, also issued pursuant to section 104(d)(2) of the Act, also alleges a "significan1
and substantial" violation of the standard at 30 C.F.R § 75.360(a)(l) and charges as
follows:
The pre-shift examination for methane and hazardous conditions that was conducted
on December 3rd, 2006, for the midnight shift crew on the 7-D longwall 062-0
MMU section is inadequate in that the following conditions were observed by this
inspector. Refer to the following violations for the conditions found: (1) violations#
7100364. The listed conditions would be obvious to any prudent person especially
an examiner charged with the responsibility of conducting an examination of the
mine. The mine operator has engaged in aggravated conduct constituting more than
·ordinary negligence. This violation is an unwarrantable failure to comply with a
mandatory standard.
The order was subsequently modified on May 3 lst, 2007, to read as follows:
It is not reasonably likely that all of the conditions would occur, such as a fire,
reversal of air on the belt, and injuries to all of the men .on the section. It is
reasonable to expect injuries of some of the men on the section and the belt involved
in fighting the possible fire. As a result .of this conference, the gravity in item· I 0(d)
is changed to four men affected (Order Number 7100364 was similarlymodified).

Postalwait determined that Respondent violated the cited standard regarding the preshift
examination performed between 9:00 p.m. and 10:00 p.m. on December 3rd, 2006, for the oncoming
midnight shift. The inspector found that the preshift was inadequate because it failed to report the
accumulation described in Order No. 7100364.

33 FMSHRC Page 298

Respondent's mine examiner, Anderson, was the section foreman for the afternoon shift on
December 3rd, 2006. He performed the preshift for the oncoming midnight shift between 9:00 p.m.
and 10:00 p.m. and called it out before the inspection party went underground at approximately
10:00 p.m. Postalwait reviewed the preshift book before going underground and recorded the
conditions Anderson reported. There is no dispute that the coal accumulations that were the basis
for Order No. 7100364 were not listed in the preshift record. While the inspection party was
underground, Anderson traveled to the surface and added "mud+ water" at the "take-up" as a
"violation." This belated addition to the preshift report would not in any event have helped the
oncoming shift foreman, Eric Ernest. When Anderson had earlier called out the preshiftresults, they
were received by Ernest who then proceeded underground with Postalwait and the inspection party.
I find from the credible evidence that the coal accumulations cited by Postalwait were present
at the time of the preshift examination. Indeed, the belt liaci been idle for the three preceding shifts
while Respondent was preparing to resume production and activate the belt and there had been no
production since the belt had been last. shut down. Since there was no production to add to the
accumulations and since Respondent did not assert that it had performed any cleaning while the belt
was idle, it is clear that what Postalwait observed and what the examiner saw should have been
reported. The failure to have reported the conditions in the preshift report was therefore a violation
as charged. I note that Respondent again argues herein that since it is undisputed that a preshift
examination was in fact conducted (on the afternoon shift ~f December 3rd 2006) there was no
violation as charged. For the reasons previously articulated under the discussion regarding Order
Number 7099401, I likewise find this argument co be without merit.
The Secretary maintains that the violation was also. "significant and substantial." As a result
of the violation, the oncoming shift would have been ignorant of the hazardous condit~ons that
existed along the 7-D longwall belt. No one was working to clean the accumulation when it was
cited and it may therefore reasonably be inferred that it would not have been cleaned before the belt
was restarted. As previously discussed, thirteen rollers and the bottom belt was running in coal and
the coal was made up of fine particles. The coal in contact with the rollers and belt had already
dried out, indicating that frictional heating had been ongoing. In the course of normal mining
operations fire and smoke were therefore reasonably likely. Accordingly, miners working on the
belt, inbytoward the face, or attempting to extinguish the fire, risked serious injuries from bums and
smoke inhalation. Within this framework of credible evidence, I must agree that the violation was
"significant and substantial" and of high gravity.
The Secretary further maintains that the violation was the result of Respondent's high
negligence and unwarrantable failure to comply with a mandatory safety regulation. In this regard,
I find that Respondent was on notice that greater efforts were necessary to ensure adequate preshifts
were being performed. Respondent had received nine citations and orders for violations ofthe cited
standard in the twelve months preceding the issuance of order at bar. Moreover, Respondent had
received 100 violations of30 C.F.R. § 75.400 which became final orders in the 12 months prior to
33 FMSHRC Page 299

Order Nos. 7100364 and 7100365 being issued. Under the circumstances, Respondent's examiners
should therefore have had a heightened vigilance for belt accumulations. As previouslyuoted, I have
also found that the accumulations were obvious and had existed over several shifts.
Under all the circumstances, it is clear that Respondent engaged in aggravated conduct
beyond ordinary negligence in failing to report the belt accumulations. The violation was therefore
the result of its unwarrantable failure and high negligence.

Order Number 7100380
This order, also issued pursuant to section 104(d)(2) of the Act, alleges a "significant and
substantial" violation of the standard at 30 C.F.R §75.403 and charges as follows:
The incombustible content does not appear to be maintained to at least 65 per centum
in the #2 intake entry on the 7-D longwall panel, 062-0 MMUsection from #19 1/4
block to #20 block including connecting crosscuts at #20 block. The mine floor in the
· listed area is powder dry and (Black in color). The listed area also in the main intake
(primary escape way). The miners travel through this area to reach the long wall face
in that #20 block is the last line of open crosscuts. This condition is obvious in that
dust is suspended into the mine air as miners travel through the effected area by foot
travel. Three spot samples were collected by this inspector to support this violation.
(1) Sample 1-A-1 was collected at 28 feet outby SS24+79 located in #2 entry at
Sample l -C-1 was collected approximately 60 feet in the # i to #2 crosscut from the
#2 entry at #20 block. The rriine operator was previously put on notice. The mine
operator has engaged in aggravated conduct constituting more than ordinary
negligence. This violation is an unwarrantable failure to comply with a mandatory
standard.
The cited standard, 30 C.F.R § 75.403, provides as follows:
Where rock dust is required to be applied, it shall be distributed upon the top, floor,
and sides of all underground areas of a coal mine and maintained in such quantities
that the incombustible content of the combined coal dust, rock dust, and other dust
shall be not less than 65 per centum, but the incombustible content in the return air
courses shall be no less than 80 per centum. Where methane is present in any
ventilating current, the per centum of incombustible content of such combined dust
shall be increased 1.0 and 0.4 per centum for each 0.1 percentum of methane where
65 and 80 per centum, respectively of incombustibles are required.

33 FMSHRC Page 300

On December 19th, 2006, Postalwait returned to the subject mine as part of the regular
quarterly inspection. He was accompanied by then MSHA trainee Aaron Wilson, UMWA
walkaround representative Richard Harrison, and Respondent's representative Jeffrey Taylor.
Postalwait reviewed the preshift examination book to note the conditions recorded by the mine
examiners before proceeding underground. While heading toward the 7-D longwall face, Postalwait
observed that the entry was black from coal dust between the No. 19 and No. 20 Blocks in the No.
2 Entry and the No. 1 to No. 2 Crosscut. He testified that the coal dust covered the mine floor from
rib to rib in both the entry and the crosscut . The coal dust was dry, black, and powdery. It was three
to nine inches thick with the deepest portion in the center of the entries and in the ruts left by scoop
tires. In walking through the coal dust on the mine floor, the inspection party placed coal dust into
suspension. The mine floor was covered with coal dust for a distance of approximately 13 7 to 150
feet between the No. 19 and No. 20 Blocks and for approximately 100 to 150 feet in the No. I to No.
2 Crosscut. Indeed, Respondent's representative, Mr. Taylor, agreed at trial with the inspectors and
UMWA representative Harrison that there were accumulations present and that the mine floor was
black and the coal dust dry.
Postalwait also took three "representative" samples ofthe coal dust to test for incombustible
content. The laboratory analysis showed that the coal dust samples had 19.5%, 30.6% and 36.8%
incombustible content- well below the regulation's requirement of65% incombustible content for
intake entries. Respondent stipulated to the accuracy of the laboratory analysis. The violation is
therefore proven as charged.
The Secretary also maintains that the violation was "significant and substantial". The credible
testimony establishes that there was an extensive accumulation of combustible coa] dust in the cited
area that presented a fire or explosion hazard. It is clear that the coal dust was highly combustible
because it was dry, made up of very fine particles of coal and lab testing showed it had a high
combustibilicy content. Ignition sources were also present from scoops, face ignitions, the coal
conveyor belt the scoop battery charging stations, sump pumps and the power center. According to
Postalwait, scoop batteries arc, have the battery posts blown off, and have the battery leads blown
off, each of which can ignite a coal dust fire. The credible evidence shows that scoops traveling
through the cited area would likely send coal dust from the mine floor into suspension as ihey
traveled through the area. Coal dust in suspension in the ventilation air current would travel inby
to the longwall face creating ariother potential ignition source. An ignition of methane at the
longwall face could propagate back to the cited area and become a larger explosion due to the coal
dust in suspension. Face ignitions of methane can occur when the longwall shear strikes hard rock
intrusions in the coal seam called "sulfur balls" which cause sparks that can ignite a pocket of
methane. The subject mine has also had face ignitions in the past.
I also find that the injuries expected to result from the hazard would be of a reasonably
serious nature. A fire or explosion in the cited area in the No. 2 Entry and the No. 1 to No. 2
Crosscut would be critical because the area includes portions of the primary and secondary
33 FMSHRC Page 301

escapeways. The ventilation air current would cany smoke from a fire in the cited area to the face.
Miners also use the cited area to get to and from their work station at the longwall face every shift
Miners therefore are exposed while working at the face and while walking through the cited area.
The likely injuries would be serious and include bums and smoke . inhalation. Under th(;
circumstances, I find that the Secretary has met her burden of proving the violation was "significan1
and substantial" and of high gravity.
The Secretary. also argues that Respondent was highly negligent and that the violation was
the result of its unwarrantable. ~ailure to comply with a mandatory safety regulation. Tue Secretary
maintains that Respondent allowed an obvious and hazardous accumulation of coal dust to exist and
failed to correct it, danger it off, or even report it, despite being on notice that it had to exert greater
efforts to comply with the regulation.

As previously found, the credible evidence shows that, the coal dust accumulation in the cited
area was indeed obvious. The ribs and floor were black, the material was extensive and it could be
seen 1Yz blocks away. Indeed, that evidence showed that in Entry No. 2 between No. 19 and No. 20
blocks the accumulation was approximately 137 to 150 feet long and in the No. 1 to No. 2 Crosscut
was approximately 100 to 150 feet long. Moreover, the evidence shows that Respondent brought
all 10 miners on the face crew to water and rock dust the cited area and it apparently took about four
hours to abate the cited condition.
In addition, the credible evidence shows that the accumulation had existed for at least several
shifts. The inspectors and Harrison corroborated.each other's testimony in agreeing that the coal
dust had been produced by rib sloughage and would have taken several shifts to reach the state that
they observed. According to these experts, the coal ribs had t? slol,lgh; then the pieces of coal rib
had to dry qut; then the scoops traveling in the area had to pass over the sloughage to grind it into
powder; and, finally, the coal dust had to.build up to the depth they observed. ·
It is clear. that Respondent was also on notice that it had to make greater efforts to comply
with the cited standard: Ten violations of the that standard became final orders in the 12 months
prior to the subject order. In addition, according to the credible testimony of Postalwait, he had
discussed with Respondent the need to comply with that standard and to deal with problems in rock
dusting the mine floor and ribs on several occasions, and as recently as a week before the subject
order was issued.· Harrison also confirmed that these discussions with mine management did occur.

Finally, there is credible evidence that Respondent had actual knowledge of the extensive
coal dust accumulation. Two foremen for each shift had to walk through the coal dust in the cited
area to reach the longwall face and to leave at the end of their shift. Respondent's longwall
coordinator, Brian Delloma, was at the face when the subject order was issued, saw the condition
and admitted to Inspector Postalwait that it was a violation and should have been remedied earlier.
33 FMSHRC Page 302

Under all the circumstances, I find that the Secretary has met her burden ofproving that the violation
herein was the result of Respondent's unwarrantable failure and high negligence.
Order Number 7100381
This order, also issued pursuant to section 104(d)(2) of the Act, also alleges a "significant
and substantial" violation of the standard at 30 C.F.R §75.360(a)(l) and charges as follows:
The pre-shift examination for methane and hazardous conditions that was conducted
on December 19th, 2006, for the day shift crew on the 7-D longwall 062-0 MMU
section is inadequate in that the following conditions were observed by this inspector.
Refer to the following violations for the conditions found: (1) Violations# 7100380,
The listed conditions would be obvious to any prudent person especially an examiner
charged with the responsibility of conducting an examination of the mine. The mine
operator was previously put on notice for the same type of conditions. The mine
operator has engaged in aggravated conduct constituting more than ordinary
negligence. This violation is an unwarrantable failure to comply with a mandatory
standard.
The Secretary maintains that this order was issued because the preshift report for the day shift
on December 19th, 2006, did not include the hazardous coal dust cited in the No. 2 Entry and the
No. 1 to No. 2 Crosscut cited in Order No. 7100380 issued above. Respondent lost the preshift
examination book prior to trial and the only record of its contents is from the notes of Inspector
Postalwait.
There is no dispute that the preshift examination for the cited area was performed between
5 :00 a.m. and 7:00 a.m. Postalwait issued the first ofthe subject orders at 9:25 a.m. and miners were
then already working at the face. It may reasonably be inferred that the accumulation was present
during the preshift examination performed 2 Yz to 4 Yz hours earlier because the credible evidence
shows that it took several shifts to develop. As previously noted, the coal ribs had to slough, dry
out, and be ground into powder before they were in the state observed by the inspection party. Both
Wilson and UMWA representative Harrison agreed with Postalwait's conclusions in this regard.
Accordingly, since the accumulation had not been reported, I find that the Secretary has met her
burden of proving the violation as charged. I note that Respondent again argues herein that since it
is Un.disputed that a preshift examination was in fact conducted there was no violation as charged.
For the reasons previously articulated under the discussion regarding Order Number 7099401, I
likewise find this argument to be without merit.
The Secretary also maintains that the violation was "significant and substantial" because of
33 FMSHRC Page 303

a reasonable likelihood oflost work days or restricted duty. She'notes that 10 miners were exposec
to the hazard of a mine fire .or explosion because they were not alerted to the cited coal dus'
accumulation. The first and second prongs of the Mathies test have already been established
Respondent's failure to record the hazardous condition cited by Postalwait in Order No. 710038(
was a violation of 30 C.F.R. § 75.360(a)(l). This condition contributed to a discrete safetyhazarc
in the form of a fire or explosion hazard in the No. 2 Entry and the No. 1 to No. 2 Crosscut. A~
discussed above,. the third. prong of the Mathies test is also satisfied. No one was working on tfo:
accumulation when it was cited and it is reasonable to infer that it would not have been correcte<l
considering continued normal mining operations. I find it unlikely that Respondent would have
cleaned, watered, rock dusted or dangered-off the accumulation, since a number of examiners had
already failed to report it and Respondent continued to ignore the condition. Finally, the evidence
establishes that miners working at the face risked serious injuries such as burns and smoke inhalation
from the failure to have reported the hazardous condition. I find therefore, that the Secretary has met
her burden of proving that the violation was "significant and substantial" and of high gravity.
The Secretary further maintains that Respondent's negligence was high and that the violation
was the result of its unwarrantable failure to comply with the cited standard. As previously noted,
it may reasonably be inferred from the credible evidence that several examiners failed to report the
hazardous coal dust in the cited area based on the length of time it had existed. Since the mine floor
and ribs were black and the accumulation extended for well over 200 feet in the No. 2 Entry between
No. 19 and No. 20 blocks and in the No. 1 to No. 2 Crosscut, it could hardly be missed. Since the
hazardous conditions had existed for several shifts but were not reported, 1Iliners were thereby
·exposed over these shifts to a fire or explosion.
In addition, Respondent had been placed on notice having been cited for similar violations
of the cited standard. Respondent had received nine violations of the cited standard which became
final orders in the 12 months prior to the subject order. Accordingly, Respondent's examiners
should have had a heightened awareness for coal dust accumulations. Respondent had also been cited
previously for violations of the standard at 30 C.F.R. § 75.403 and admonished to improve its rock
dusting of the mine floor and ribs . Indeed, Mr. Harrison was present for Postalwait's most recent
discussion with management a week before the subject orders. Respondent was issued l Oviolations
of30 C.F.R. § 75.403 which became final orders in the 12 months priorto the subject order.
Finally, the credible evid~nce shows that Respondent's managers had actual knowledge of
the coal dust accumulation. Two foremen on each shift had to walk through the cited area with their
crews and Respondent's. longwall coordinator was at the face when the orders ai bar were issued.
Indeed the longwall coordinator admitted that it was a violation and tliat they should have taken care
of it sooner. Under all the circumstances, it is clear that Respondent engaged in aggravated conduct
beyond ordinary negligence in failing to report the coal dust accumulation.

Civil Penalties
33 FMSHRC Page 304

Under section 11 O(i) of the Act, in assessing civil monetary penalties, the Commission and
its judges must consider the operator's history of previous violations, the appropriateness of the
penalty to the size of the business of the operator charged, whether the operator was negligent, the
effect on the operator's ability to continue in business, the gravity of the violation and the
demonstrated good-faith of the person charged in attempting to achieve rapid compliance after
notification of the violation. In addition, under section 110 (a)(3)(B) of the Act a minimum penalty
of $4,000.00 is mandated for orders issued under section 104(d)(2) of the Act.

In this regard, the parties stipulated to four of the six penalty criteria as follows: (1) the size
of Respondent's business should be considered as large based on the fact that Respondent produced
45,599,304 tons of coal in 2005, including 6,359,281 tons at the subject mine; (2) Respondent's
violation history should be based on the fact that, in the 24 months immediately presiding the
issuance of the orders in this case, it was assessed a total of966 citations based on 768 inspection
days prior to Order Numbers 7100364, 7100365, 7100380 and 7100381; 927 citations based on 751
inspection days prior to Order Numbers 7099399 and 7099401; and 940 citations based on 753
inspection days prior to Order Number 7100170; (3) Respondent demonstrated good-faith in
attaining compliance after the issuance of the orders at issue herein and (4) payment of the total
proposed penalty of$49,600.00 would not affect Respondent's ability to continue in business. The
two remaining penalty criteria, gravity and negligence, have previously been evaluated within the
discussion of each order.

ORDER
OrdersNumber7099399, 7099401, 7100170, 7100364, 7100365, 7100380 and 7100381 are
hereby affirmed. The Consolidation Coal Company js hereby directed to pay the following civil
penalties (tota)ing $48,800.00) within fortY (40) days of the date ofthis decision: Orders-Number
7099399-$7 ,500.00, 7099401-$7,500.00, 7100170-$4,000.00, 7100364-$6,300.00, 7100365$6,300.00, 7100380-$9, 700.00, 7100381-$7,500.00.
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Administrative Law Ju ge
202-434-9977

33 FMSHRC Page 305

Distribution: {Certified Mail and Facsimile)
John M. Strawn, Esq. and Jennifer Klimowicz, Esq., Office of the Solicitor, U.S. Department oi
Labor, The Curtis Center, Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 191063306
Todd C. Myers, Esq;, Bowles, Rice, McDavid,
Suitel 700, Lexington, KY 40507-1639

Graff & Love, LLP, 333 West Vine Street,

· Rebecca J. Oblak, Esq., Bowles, Rice, McDavid, Graff & Love, LLP, 7000 Hampton Ctr, Suite K,
Morgantown, West-Virginia 26505
Ito

33 FMSHRC Page 306

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N.W., SUITE 9500
WASHINGTON, D.C. 20001
(202) 577-6809
January 28, 2011

CIVIL PENALTY PROCEEDING

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

DocketNo. CENT 2009-588- M
A.C. No. 29-02269-189438

v.

Docket No. CENT 2009-757- M
A.C. No. 29-02269-189806

MAINLINE ROCK & BALLAST, INC.,
Respondent

Torrance Quarry

DECISION
Appearances: Tina D. Juarez, Esq., Office of the Solicitor, Dallas, Texas for Petitioner;
Christopher G. Peterson, Esq., Jackson Kelly, Denver, Colorado
Before: Judge Moran
On April 21, 2009 miner Edelberto Avitia was pulled into a return. roller of the grizzly ·
conveyor at Respondent Mainline Rock and Ballast's Torrance Quarry ("Mainline"). Mr. Avitia
received significant injuries and was evacuated via helicopter from the mine to a hospital. He
was fortunate to have survived the event. 1 Subsequently, the Mine Safety arid Health
Administratfon ("MSHA") conducted an investigation of the incident, resulting in these civil
penalty proceedings brought 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'~).
MSHA alleges two violations arising out of this event.

1

As later described by plant superintendent Mike Harris, Avitia was indeed lucky not to
have been fatally injured. This is because Harris estimated the space between the return roller
and the bottom of the conveyor where Mr. Avitia got caught to have been "roughly seven
inches." Tr. 258-259. The arrangement consisted of the roller and the belt on top of that return
roller and there is a cross member piece of two-inch angle iron and there was about seven inches
between that space, creating a pinch point. Tr. 260.
33 FMSHRC Page 307

First, it contends that the Respondent violated 30 C.F~R. § 56.14107(a). That section,
entitled, "Moving machine parts," provides that:.
Moving machine parts shall be guarded to protect persons from contacting gears,
sprockets, chains, drive, head, tail, and takeup pulleys, flywheels, couplings, shafts, fan
blades, and similar moving parts that can cause injury. 2
Second, MSHA contends that Mainline violated 30 C.F.R. § 50.10. That section,
entitled, "hnmediate notification," provides that:
The [ mine] operator shall immediately contact MSHA at once without delay and within
15 minutes at the toll-free number, 1-800-746-1553, once the operator knows or should
know that an accident has occurred involving: (a) A death of an individual at the mine;
(b) An injury of an individual at the mine which has a reasonable potential to cause death;
(c) An entrapment of an individual at the mine which has a reasonable potential to cause
death; or (d) Any other accident. 3
For the reasons which follow, although the Court does not find that this incident occurred
in the manner contended by MSHA, it still affirms both violations and increases the penalty for
the notification violation.

I. Findings of Fact and Conclusions of Law
A. Failure to guard moving:machine parts; the alleged violation of 30 C.F.R. § 56.14107(a)
;

Miner Edelberto Avitia (''Avitia") was working as a loader man at Mainline' s Torrance
Quarry,4 a position he had held for about two or three years. Tr. 34. His duties were varied but,
as pertinent here, they included shoveling accumulations of dirt from around the grizzly.
conveyor. In fact, the parties do not dispute that Avitia's duties included cleaning up such
·
accumulations around the area of the jaw crusher and the grizzly conveyor.

2

The same standard, at § 56.14107(b), provides that "Guards shall not be required where
the exposed moving parts are at least seven feet away from walking or working surfaces."
Neither side has claimed that this provision applies.
3

For purposes of this citation, the term "accident" is defined in section 50.2(h) as "[a]n
injury to a miner which has a reasonable potential to cause death." 30 C.F.R. § 50.2 (h)(2).
4

The operation provides baliast for application alongside railroad tracks. Tr. 531.
33 FMSHRC Page 308

In order to fully appreciate the circumstances of this accident, one needs to have the
following exhibits for viewing along with this written description: Gov. Ex P 4, 5 and
Respondents Exhibits R 11 and R 7. Exhibit P 4, a photograph, shows the grizzly conveyor with
Plant Superintendent Mike Harris standing in front of the approximate location of the return
roller in which Avitia got caught. In the photograph, three guards are behind Mr. Harris; there is
long, "rectangular" guard immediately behind him and he is standing approximately in the
middle of that guard; To the left of that guard is what appears, at least in P 4, as a "square"
shaped guard which is much shorter than the rectangular guard. R 11 shows a different
perspective of that "square" guard. That is the view of the square guard if the person in R 6 were
to walk towards the square guard and then go behind it. Thus, one sees that the "square" guard is
actually a box shaped guard surrounding the tail pulley. 6
Although Mr. Avitia testified7 that he became caught in the pulley at a location some
distance to the right of the individual in P 4 and that this occurred while he was shoveling
accumulated dirt under the conveyor at that point, the Court finds that is not the way the accident
occurred. On the basis of the preponderance of the reliable testimony, the Court finds thatAvitia
became ensnared in the return roller which, as noted, is right behind Mr. Harris, in P 4. Further,
this accident did not occur through Mr. Avitia shoveling dirt accumulations from beneath the
conveyor at the location where Mr. Harris is standing. Avitia maintained that he was digging
while on his knees, shoveling as far as he could reach under the conveyor, but asserting that he
was outside the conveyor frame, just as Mr. Harris is shown to be outside the conveyor in P 4.

5

Respondent's Ex R 6, is the same photo, but with different markings on it.

6

The 'third' guard in P 4 is near the end of the right side of the rectangular guard but
below the supporting metal frame. Mr. Avitia marked ''EA," his initials, on P 4, which is near
the location of that third guard. That third guard is not significant to the issues in this case;
7

An interpreter translated the questions and answers to and from Mr. Avitia, translating
them into English. However, one should not conclude that Avitia was completely unable to
speak and understand English. Both from the Court's observations during Avitia's testimony,
including nodding when English was spoken, and testimony from Respondent's witness,
Mr.Olsen, it was clear that for the most part Mr. Avitia's ability to understand and respond in
English were sufficient for communication. Thus, the Court agrees with Dwayne Olsen,
Mainline's lowdown superintendent at the Torrance Quarry, in his assessment that Mr. Avitia's
command of English seemed passable. Observing him during the course of the hearing, the
Court noticed that Mr. Avitia seemed to be understanding the communications in the proceeding
quite apart from any assistance from the translator. Therefore, the Court finds that Mr. Olsen's
statement that he always spoke to Mr. Avitia in English, that he seemed to understand things that
were said to him and that Olsen used Avitia as a translator for communicating with other
Spanish speaking employees with less command ofEnglish, (Tr. 515-516) are all reasonable
conclusions to make about his command of English.
33 FMSHRC Page 309

Avitia stated that only his hands and arms were extended under the conveyor and consequently
he was reaching under the conveyor but only up to his shoulders. Thus, by Avitia's recounting
he would have been kneeling at some location outside the I beam framework, just as Mr. Harris
is shown to be outside that framework.
However, the. Court finds that is not what occurred. Instead, Mr. Avitia went underneath
the metal support frame and was thus under the conveyor belt when ·the accident occurred. This
action on his part was prompted by a rock or some sort of material having become lodged
between the belt and the conveyor I beam frame. 8 R 5, though it.has some acknowledged errors9
in its depiction of the conveyor at the location of the injury,·is still useful to understanding the
location and point where Mr. Avitia became caught. In any event, while under the conveyor at
that location, and while trying to free a lodged piece of rock or other· material, Mr. Avitia's
shovel got caught between the belt and the return roller and, in an instant, that action caused Mr.
Avitia to become drawn into it before he could release his grip on the shovel. 10 In fact, while
there was some disagreement about the exact location where Avitia started his digging work,
there is no conflict about where he ultimately became lodged, as he agreed that the conveyor belt
was over his back and the roller was against his stomach. Thus, the bold black arrow in the
bottom drawing of R 5 shows the point where Avitia became lodged.
Although Jeremiah Carpio was next called as a witness, the Court concludes that his
testimony was not valuable to the determination of the facts in this case. 11

8

Avitia himself stated that dirt could accumulate and "tum into like a rock and it would
make the band stop or the belt stop." Tr. 57.
9:Exhibit R 5 was conceded to be inaccurate in that the cross member shown in the upper
drawing is a,ctually not as depicted in that drawing.. Harris agreed there are inaccuracies in R 5,
the drawing of the grizzly conveyor. Further he had no input to its creation. Tr. 404. Harris
drew the correct location for this in the bottom drawing on R 5, using a red pen. Tr. 349.
Another exhibit, R 7, shows the correctlocation of the cross member in relation to the roller
where the accident occurred.
10

0n P 4, Avitia marked his initials and the number 1 to show where he had been
shoveling accumulations from under the tail pulley before the accident occurred . R 11, also has
the initials "E. A." and the number l, showing the same area he shoveled before the accident, but
from a different perspective. Both P 4 and R 11, also mark where Avitia contended he was
located when he became ensnared by the return roller. Again, the Court finds that Mr~• A viti a is
incorrect about this recollection.
11

Jeremiah Carpio began his employment for the Respondent initially as a laborer, then .
worked as a haul truck loader and after that he became the plant operator. Tr. 120-122. In that
last job, he runs "the plant, the quarry, the crusher." Tr. 121. In several aspects of his testimony
Mr. Carpio was not a credible witness. For example, in describing his job as the plant operator
33 FMSHRC Page 310

he stated: "We walk the plant and inspect it, you know, have to start the generators and make
sure everything 's guarded before I get it running." Tr. 121. (emphasis added). His supervisor is
Mike Harris, the plant superintendent. Tr. 122. Mr. Carpio stated that, in getting the plant up
and running each day, he walks the plant and he "check(s) all the guards, make sure they're still
up, they haven't fell .... "Tr. 124, Mr. Carpio described Mr. Avitia's job in April 2009 as an
"oiler." Tr. 125. AlthoIJgh that job involved greasing bearings, when Avitia was done with that,
Carpio agreed, "he would dig." Tr. 126. By that, Mr. Carpio meant that Mr. Avitia would shovel
piles of dirt that would fall from the conveyors and off the rollers. Tr. 126.
Mr. Carpio maintained that although he saw Mr. Avitia shovel dirt near conveyors that
were running, this occurred only where they were guarded. Tr. 127. He also asserted that there
were guards on every conveyor part that moved. Tr. 127. Consistent with that assertion, he
maintained that all parts of the grizzly conveyor were guarded. Tr. 127. However, in using that
description he meant by 'guarded' that term included 'guarded by location,' which he expressed
as "at least three feet from the ground, where your hands can't get under them if you stand right
by them. " Tr. 127-128. Carpio thus believed that, if there was only three feet or less between
the ground and moving machinery, there is no need to have a guard. Tr. 129. Despite that
stance, he stated that no one told him guards were not needed in such situations and he could not
explain how he came to know of his 'three foot rule' for guards. Tr. 130. In addition, he
asserted that the grizzly conveyor was guarded but only in the sense that the conveyor frame (or
"channel") constituted a "guard," so that, in his view, one could not access the roller. Tr. 148.
Carpio was present on the day of the accident and he asserted that Avitia told him that he
would be digging under the jaw and the grizzly that day. According to Carpio, he told Avitia not
to dig there but that Mr. Avitia insisted that he would dig there anyway.· Tr; 132-133. Thus,
according to Mr. Carpio, Mr. Avitia, defied his warning. Unbelievably, Mr. Carpio maintained
that he said nothing else in response to Mr. Avitia's alleged defiant response. Tr. 134. Adding
to the lack of believability of this assertion, Mr. Carpio, when then asked if, pursuant to his
conversation with Mr. Avitia, that he understood that Mr. Avitia was going to be digging by the
grizzly conveyor, he responded "no" because he "strictly told [Avitia] not to dig under the
grizzly." Tr. 134. Later, Mr. Carpio, added without a question prompting him, that he was not
Avitia's boss at the time he told him not to dig under the grizzly. Tr. 136. This was apparently
volunteered to explain his silence in response to Avitia's alleged defiance.
Carpio did advise that the purpose of digging under the conveyors is to clean the ground
below, so that dirt doesn't hit the bottom of the conveyor belt. Tr. 135. Mr. Carpio stated that
while people dig under other conveyors, he has never dug under the grizzly conveyor, nor has he
ever seen others do that. Tr. 140. Although Carpio stated that he had dug under the jaw
conveyor and seen others do that too, he expressed this was acceptable because it is guarded and
that all the rollers are guarded on the under jaw. Tr. 147.
Importantly, Mr. Carpio asserted that there had been expanded metal on the roller where
33 FMSHRC Page 311

Mr.Avitia got caught, lmt that "it had fallen off' before his accident. Tr. 150, 151, and the top
photo. in Exhibit P 9. The guard, consisting of expanded metal, protects so that "nobody sticks
their hand up in it." Tr. 151. Mr. Carpio believed that the guard had.fallen off that day, before
Mr. Avitia' s accident. Tr. 151. Although Mr. Carpio stated the accident still would have
occurred, even had the gtiard been present, he based this on his view that Mr. Avitia's coveralls
would have "got stuck in there." Tr. 152. However, this does not seem likely, because the
witness agreed that Mr. Avitia would have had to go through the expanded metal too. Tr. 153.
Mr. Carpio stated that he has observed others dig underneath the overland conveyor but that not
all the rollers under that conveyor are guarded as those "below three feet aren't.", Tr. 154. It
was his position that one can't get to such unguarded rollers unless one crawls into such areas.
Tr. 154.
Placing emphasis on his statement that the return roller which caught Avitia was guarded,
Mr. Carpio marked on Exhibit R 6 the location of the guard depicted Ex. P-9. Carpio stated he
knew the location ofthat guard because he was the person who installed it. Tr. 165. This was,
according to Carpio, the roller in which Mr. Avitia was caught and it was the same area that he
told Avitia not to dig. Tr.. 165. Although in his earlier testimony Carpio stated there was no
gtiard there at that time, later he speculated that perhaps Avitia "busted" the guard when he went
through it. Carpio based this revised claim on the assertion that the expanded metal guard was
on the ground. Tr. 165; However, the record contains no photographic evidence of such a guard
and Carpio was the only witness who claimed there was such a guard present.
Carpio also maintained that Avitia twice admitted to him that upon seeing a rock stuck in
the roller he tried to remove it with his shovel and that both his shovel and coveralls got caught
up by the roller. Tr. 168. He maintained that Mr. Avitia regretted trying to remove the rock
without shutting the equipment down first. Tr. 170. · He further asserted that Mr. Avitia
expressed regret over his actions and that he recognized that he should have called to have the
conveyor shut down. Tr. 172. Mr. Carpio also stated that the mine had a lock out, tag out policy
and that there was a meeting about thatpolicy in February or March that year. The conveyor and
grizzly would be shut off and the equipment locked and tagged out if a rock became stuck and
this practice was also done for maintenance reasons.
Mr. Carpio reiterated his view that "guarded by ground" refers to applying where the
height is 36" or less, in which cases no guard is needed. Tr. 176. He maintained that the
company's training manual provided that one is not to get under the conveyor where the height is
36" or less, though no exhibit was offered to support that claim either. He also asserted that, ·
while shoveling under the belt to deal with accumulations can occur, the belt would first be shut
down, at least in those locations where there was no guard present and it was considered guarded
by location. Tr. 178.
When the Court revisited Mr. Carpio' s assertion that he specifically warned Mr. Avitia
33 FMSHRC Page 312

Plant Supenntendent Mike Harris, whom the Court found to be a credible and forthright
witness, stated that Mr. Avitia's duties as an 'oiler' are to grease, oil, and do clean-up work and
maintenance. Tr. 237. Avitia's clean-up duty includes spills, places on the rock crusher where
dirt will accumulate. In general, Harris described this as shoveling, "keeping the plant side
clean." Tr. 238. Spills, he agreed, can include rocks. Tr. 238. Mr. Harris also agreed that an
oiler would need to use a shovel to dig out spills. An oiler would use a shovel to clean up
accumulations that are under a conveyor. Tr. 241. It is important, Harris agreed, to keep the
plant cleaned up as, if piles were allowed to build up, and get under the belt, "pretty quick [the]
plant would be buried" and the belts would stop running. Tr. 241-242.

that he was not to shovel in the area where the accident later occurred, he reaffirmed that he told
Mr. Avitia not to dig at the scene of the accident, although his specific concern was that Mr.
Avitia not be injured from rock falling under the grizzly. Tr. 181. Mr. Carpio's version of this
event is not credible for many reasons including his admission that, though he had known Mr.
Avitia for ten years, this was the only time such a conversation had occurred.. Thus, according to
Carpio, in all those years he had no previous occasion in which he had warned Aviti a not to do
something. The one warning happened to occur on the day of the accident. Tr. 181-182.

Mr. Carpio's explanation for his understanding that there was no need for a guard, that is,
that it was guarded "by location," ifthe distance between the between the ground and the
moving part was 36 inches or less, was similarly questionable in that he first stated that the safety
coordinator did not describe such a distance andthat he knew it was 36 inches "because that's the
distance from our conveyor." Tr. 183. The "conveyor" he was referring to was the location of
the accident. As with his alleged warning to Avitia, Mr. Carpio stated that the safety coordinator
had identified the "three feet" rule one time in five years, although he then backed away from that
claim. Tr." 185. The pattern of conflicting answers continued when the Court inquired about
other locatio11s at the plant where the distance between a roller and the ground is less than 36
inches and whether those locations have guards. While at first stating that such areas did not
have guards, he then stated that some return rollers did have guards, even jf the space was less
than 36 inches. Tr. 189. The Court, trying to figure out Mr. Carpio's statements on this issue,
asked how it was determined to put a guard in some locations with less than 36 inches clearance
but not others. Mr. Carpio responded: "I mean, we don't dig on spots that are dangerous. I don't
know." Tr. 188. The Court accepts atleast the last part of Mr. Carpio's statement: he doesn't
know.
In the Court's estimation, Mr. Carpio was trying to support his company's position but he
did not do this credibly. Based on the entire record, the Court concludes that the credible
evidence is that the roller in issue was not guarded at the time of the accident and that Carpio did
not warn Avitia that he was not to dig in the location of that roller. Further, the Court does not
find credible Carpio's assertions that Avitia admitted to him the circumstances of the accident.
Beyond those findings, it is noted that Carpio's claim that the roller in issue was guarded
seriously undercuts the Respondent's claim that guarding by location applied to that
circumstance.
33 FMSHRC Page 313

When Harris first arrived at the accident scene Mr. Avitia had been freed and was on the
ground. Tr. 247. Harris stated that when he asked Avitia what happened, he responded: "I
[messed up] guero." Tr. 256. 12 Harris later restated that Avitia admitted to him that he was
trying to free a rock stuck against a belt. Tr. 406-407. 13 The Court accepts Harris' position that
access to the return roller where Avitia was caught would only occur through a deliberate act
such as to dislodge a rock. Tr: 366. 14
Apart from whether Mr. Avitia exercised poor judgment, photographs 5 and 6, within Ex
P 8, are an attempt made by the Respondent to show where Mr. Avitia's body was caught within
the small space between the roller and the belt. Tr. 278. Harris, who is the person in those
photos, positioned himself to show how Avitia was pinned between the roller and a piece of
angle iron, described as a "cross member." Tr. 279-280. A clearer depiction of the same
recreation of the point where Avitia became trapped by the roller is R-7, which is an enlargement
of the same area shown in photos 5 and 6 within P 8. 15
Harris agreed that the roller where Avitia was caught had no expanded metal guard on it
Tr. 294, 297. The Court finds that the return roller in issue did not have a guard. Ex P 9, shows,
but not very clearly, photos of the expanded metal guard that was placed around the return roller
after the event. Tr. 296, 364. Harris described the installed guard as "pretty much a standard
return roll guard." Tr. 297. That guard, as installed for abatement, was about 51 inches in
length and 3 to 4 inches tall and it covered the 5 inch roller. Tr. 298-299. However, Harris
maintained that the same accident could occur, even with the guard that was placed over the
roller to abate the citation. Tr. 299. This, the Court finds, was a bit of an overstatement. Harris
stated that some contact could still occur as one could still touch the bottom of the front of the
roller but he conceded that the expanded metal guard would prevent contact in the area it

12

Actually, the ubiquitous and all purpose "f' word was, according to Harris, employed
by Avitia, not the tamer "messed up" description substituted by the Court.
13

0n redirect, the Solicitor's Counsel tried to have the witness concede that as Avitia was
in pain and on medication, his statement about the stuck rock was likely unreliable. Tr. 416. The
Court rejects that contention and notes that the government did not recall Avitia to rebut the
contentions made by the Respondent's employees.
14

Harris asserted that Avitia should have simply radioed about the stuck rock and the
grizzly belt conveyor would have been shut down for the removal of the rock and that the rock
removal would only have taken minutes. Tr. 367-368.
15

These photographs, particularly R 7, starkly display how fortunate Avitia was to have
survived the event.
33 FMSHRC Page 314

covers. 16 Tr. 427-428. If one were caught in the remaining unguarded gap, it was Harris'
position that the expanded metal would "tear up" the person caught worse than if no guard was
present. Tr. 300. Despite that concern about the effectiveness of the guard that was installed
after Avitia' s accident, Harris admitted that MSHA did not tell him to use an expanded metal
guard to abate the citation and that it was the Respondent that came up with the guard design. Tr.
301.
Harris also stated that the company's policy does not require a lockout/tagout if one is
shoveling beneath a conveyor. 17 Tr. 304. Further, he agreed that using a shovel to remove dirt
accumulating from beneath a conveyor is a common activity. However, Harris distinguished that
action from physically getting underneath the conveyor. Tr. 304.
Harris noted that some rollers are guarded at the site while others are not. He cited the
overland conveyor's return roller as an example where there is no physical guard. Tr. 305. ·
However, he noted that a "snubber roll[ er]" is guarded and two rollers forward of that are
guarded too, as both are accessible and therefor not guarded by location. Tr. 305.
Regarding the location where Avitia became caught, Harris agreed that R 6 depicts
several guards on that tail pulley. As noted earlier, the left most guard covers the tail pulley and
there is the long rectangular guard right behind Harris in the photograph. There is also a 'drop

16

Although, as noted, Harris believed that the guard that was installed on the return roller
after Avitia's accident would not completely prevent one from getting caught up in the pinch
point because the guard must still leave some space between it and the moving conveyor, that
contention only demonstrates that a guard's protection is not absolute but it does not speak to the
requirement for a guard. Tr. 361. A similar argument was advanced by Harris in contending that
guards can sometimes create problems, as by trapping dirt. However, Harris himself rebutted the
import of that assertion by acknowledging thatthere is still a need for guards to protect against
incidental contact. Tr. 363.
17

Rl 7, a multiple page exhibit, represents Avitia's training records. Tr. 370. It shows
that Avitia had lockout/tagout training, which applies to lockout procedures for electrical
components. Tr. 371-376, 512. Respondent's Ex 19 was identified by Olsen as the Company's
lockout/tagout policy. Tr. 517. Olsen added that he would provide "site specific" training,
identifying various hazards at the mine. Tr. 518-519. However, any argument that lockout/tagout
applies is misplaced. The operator was cited for a guarding failure. There is no authority for an
affirmative defense claim that a failure to follow such lockout tagout procedures impacts the
alleged violation. Further, the operator did not present reliable evidence that it specifically
required the shut down of equipment in the event of lodged material in its conveyor system.
Nor was there evidence that lock out tag out applied where employees were cleaning up spillage
from conveyors. Last, no signs or warnings were present advising employees not to work under
conveyors.
33 FMSHRC Page 315

guard,' which is below the right end of the long, rectangular guard. 18 Tr. 318. All three of those
guards were in place on the day of the accident. Tr. 319. Also, as previously noted, the return
roller, where the accident occurred, is right behind Harris' legs, in R-6. Tr. 319. Harris noted
that seven "troughing rollers" that is, rollers fonn the belt into a. "U" shape, and which are on top
of the conveyor belt, are guarded. They are guarded because they present a pinch point and they
are guarded by the long rectangular guard shown in R-6.
fu contrast, the return roller which ensnared Avitia is on the bottom side of the belt. Its
function is to keeps the belt from sagging onto the ground. The return roller in issue is depicted
in R 5 right above the 33" marking on the exhibit. 19 Harris described the return roller's location
as "inside the frame bracket ... it's located up inside the frame ... the bottom of the roll is
relatively flush with the bottom of the frame of the conveyor." Tr. 324. The 33 inch measure in
R 5 records the distance from the bottom ofthe roll to the ground. Tr, 323. There is no dispute
that the return roller in issue did not have a physical guard on it at the time of the accident. Tr.
325.
Representing the Respondent's central contention in this case, Harris considered the roller
to be guarded by location because there is no "access" to it in the sense that one has to
intentionally go that location to gain access. fucidental contact, in ·his view, could not occur. Tr.
326. Harris expressed his understanding of guarding by location as circumstances where "there's
no way to access it or accidentally fall into it." Tr. 326. In support of this view, he noted that
there are several other rollers that are low to the ground, meaning rollers located 36 inches or less
from the ground and he asserted that such rollers have always been considered guarded by
location. Tr. 327. Thus, Harris viewed guarding by location to apply to situations where one
would have to take deliberate action to gain access. Tr. 327,
The Court agrees and finds as a fact.that if one were to trip or fall in the area where Mr.
Harris is staJi,ding in the photograph, R 6, no contact with the return roller could occur. As noted,
it also rejects the Department of Labor's assertion that Avitia was shoveling dirt from the outside
of the grizzly conveyor and only reaching as far under that conveyor as his shovel pennitted, thJtt
is up to his shoulders, when he became caught by the return roller. Only Mr. Avitia's version
supports the contention that he was working from outside that conveyor but the Court, upon
consideration of Mr. Harris' testimony and others, concludes that scenario is incredible. 20

18

This is the guard which is hard to discern in the photos but, as noted, its presence does
not play a direct role in the determination of the alleged violation which concerns ·only the return
roller that ensnared Avitia.
1

9Harris drew a red arrow and added his initials to identify the return roller in issue .. Tr.

324.
2

°Even Avitia did not exactly how it was that he was caught by the conveyor. He could
not say whether it was his clothing or his shovel that contacted the conveyor. Tr. 62-65. It is far
33 FMSHRC Page 316

Although Harris contrasted the accident location with working under the location of the
tail pulley, as shown in R 11; and noted that Avitia had shoveled dirt from under there, it is worth
noting that the access height to the area under the tail pulley is about the same as the site of the
accident. Yet, it is significant to note that the tail pulley is completely guarded underneath it.
In contrast the roller where Avitia was caught up was not so completely guarded.
Harris did not consider the rollers at the tail pulley as guarded by location because one
"could duck your head down and walk underneath there, pick your head up. You could
accidentally get into that, and that's why they're guarded." Tr. 332. The Court finds this
reasoning to be flawed, or at least inconsistent, because one could also duck under at the location
where Avitia was injured and that is exactly what the Court finds that he did. Once under the
conveyor frame, as shown by R's Ex R 7, one could pick up his head and be subject to the
roller's action, as happened to Avitia. In the Court's view, the Respondent's own exhibits, R 5, 6
and 7, undo its claim that the return roller was guarded by its location. R 6, with Mr. Harris
standing at the point of Avitia's access, shows that the metal frame is at the top of his legs. That
frame, as reflected in R 5, leaves a 33 inch access space but, of more significance than the
measurement,
R 7 shows how easily one can gain access to the return roller. 21 That same photo also shows the
relative positions of Harris' buttocks and the conveyor I beam frame and it demonstrates that,
while access would have to be intentional, it would require little effort to achieve such access by

more likely that Avitia was trying to dislodge a piece of rock or some other lodged material when
the accident occurred, as Harris noted that there was no dirt under the roller at the tim~ of the
accident. Tr. 339; The photographs don't make this absolutely clear; but in contrast to R 11,
there is no pile apparent in R 6. In contrast, at least based on the photograph in R 7, rocks do
accumulate under the roller, as shown by the pile of rocks on the left side of that photograph.
Harris also stated that when he arrived at the accident scene and the conveyor belt had been cut
as part of the effort to :free Avitia there was "a rock on the bottom side of the belt, which that
rock would have been stuck against the return roll and either the frame of the conveyor or a cross
member in the conveyor." Thus, based on his experience and knowledge with the arrangement,
Harris concluded that Avitia was •'probably trying to free (a] rock while the conveyor was in
motion." Tr. 343. All of this supports the Court's conclusion that Avitia had gone under the
conveyor and was not outside of it and that his motive was to free a rock or some other material
which had become lodged on the belt
21

Harris stated that it would be about 30 inches from the bottom of the frame of the
conveyor at the location where he is standing in Ex. R 6. Tr. 403. The Court noted that R 5
shows, by that drawing, that it is 38" to the pinch point. Tr. 405. Harris felt it was more like 35"
though he agreed that the drawing indicates 38". Tr. 406. As anyone can confirm with a ruler,
an opening or space of 38 inches is a considerable height which would not pose a significant
obstacle to easy access for most people.
33 FMSHRC Page 317

merely bending atthe waist. 22 Ironically, the same photograph, R 7; shows guarding is present in
the foreground, underscoring both the need for and the absence of guarding at the return roller.
Regarding the general assertion of guarding by location, Harris stated he considers
"something that's way up in the air or way low to the ground ... [asJ guarded by location." Tr.
351. He deemed those locations as not requiring a guard because "you cannot access that. You
know, there's no reason to access that." Tr. 352. However, the Court notes that abilityto access
a location is different from having a reason to access a location and that Harris seemed to blur
the ability to access from having a reason to access an area. In this instance, Avitia had both a
comparatively easy ability to access the return roller by simply bending at the waist. In terms of
a reason to access the location, the Respondent has provided the most likely reason for Avitia' s
accessing it.
Although Harris maintained that there is some variation among the MSHA inspectors in
terms of their view whether a guard is needed or not and that some inspectors would require
guarding if a situation "might be accessible," in the Court's view, such variations in
interpretation only potentially impact the penalty not the fact of violation. 23 Harris also
conceded that at times it is simply a situation where a fresh set of eyes sees a guarding issue
where others did not. Tr. 353-354. In one guarding citation instance described by Harris, the
Respondent was cited where an employee, if he had long enough arms, could reach from a
catwalk and get caught in the head pulley. Tr. 356. Harris noted that in that instance there was a
guard present, but that it did not extend out far enough. In an attempt to show inconsistency on
MSHA' s part in applying the guarding standard, Harris stated that an unguarded return roller
along the overland conveyor has never cited by MSHA. This location was identified in the
background of R 7 and Harris stated that the conveyor height at that location was 32 inches. Tr.
358. Further, Harris estimated that there must beJ5 such rollers along the overland conveyor
that are similarly guarded by location.. Tr. 359. Again, the Court views such inconsistencies as a
distraction f!om the issue of whether the return roller in this case required guarding. Inconsistent
application of the guarding requirement to other rollers is relevant, at most, only to the
assessment of any penalty if a violation is found.

22

As Harris noted, one can shovel under the tail pulley because it "is completely guarded,"
as there is a guard on the bottom of the tail pulley. Thµs, as shoWll in R 11, there is a complete
box around the tail pulley. Tr. 333.
23

In the same vein, Harris also claimed that when an MSHA inspector appeared at the

accident scene the next day, the inspector expressed disbelief that anyone would go under the
conveyor where Avitia did. Tr:. 440. He also stated that the inspector agreed the area: was
guarded by location. Tr. 440. He further claimed that the area "was obviously in a location that
wasn't accessible." Tr; 441. Still Harris was told that a citation would likely be issued, but with
'low negligence' attributed to it because of its inaccessible locat.ion. Tr. 442~ These claims,
even if assumed to be true for the sake of argument, have no impact upon the Court's task of
determining if the standard was violated.
33 FMSHRC Page 318

Manuel Torres, a loader operator at the mine, was also called as a witness for the
government. 24 Tr. 193. He estimated once or twice a day, it is necessary to dig around the
crusher, the jaw and the belts. This occurs when dirt falls from the belts and it requires digging
under the tail and head pulleys so that the dirt doesn't pile up too close to the belts. Tr. 195-196.
Such spillage also occurs around the return rollers. Tr. 196. He stated that in the past he has
seen workers cleaning close to the belts, but he added that "nobody is supposed to be under the
belts." However, he added that one can use a shovel and clean piles under the belt while the belts
are rurining and this can-be done safely. Tr. 200.
Accordingly, the testimony of Harris, Torres, and even Mr. Carpio, support the finding
that shoveling around and under conveyors is a necessary task at this operation. Certainly, Aviti a
was doing that work around the tail pulley and around the return roller on the day of the accident
although the specific activity that caused him to become ensnared by the return roller came about
as a result of his effort to dislodge a rock or some other material which had become lodged
between the belt and the roller.
The government also called Benny Lara as a witness .. Lara was the supervisor for the
Albuquerque field office at the time of the accident at the Respondent's mine and it was he who
assigned Mr. Cisneros to conduct the MSHA investigation of the accident. 25 Tr. 540-541. Lara's
testimony was limited in its scope. Chiefly, he testified about the guarding standard in issue, 30
CFR 56.14107(a), noting that the only exception in that standard is for moving machine parts
above seven feet, and, emphasizing that point, he noted that there is no corresponding exception
within the standard for moving machine parts that do not need a guard because they are too low. 26
Tr. 544.
Aaron Fitting was called as a witness for the Respondent. Fitting is the operations
manager for Mainline Rock, which is a subsidiary of Yukon. Tr. 568. Regarding the moving
machine part violation Fitting could offer little about the accident itself, because he did not arrive
at the scene until the day after the accident. Further, the Court has already determined, on the
basis of testimony from those who were there that day, what happened. Apart from the exact

24

Mr. Torres was the first to arrive at the accident scene. Tr. 203, 224. This was
prompted when he noted that the· belt had stopped. He then called to have the power shut down.
Tr. 201. When he arrived at the accident scene, he found Mr. Avitia "trapped in between the
roller and the belt." Tr. 202. Mr. Torres marked on Ex R-6 the approximate location where he
found Mr. Avitia, indicating the location with his initials, "MT." He added that Mr. Avitia was
found just to the left of the man in the photograph, which is Ex. R-6. Tr. 212. Later, Mr. Torres
stated Mr. Avitia wa:s "directly behind" the person in the photograph. Tr. 214. Thus, Torres'
account supports Harris' testimony as to the location where Avitia became ensnared.
25

Lara testified because Cisneros had since retired. Tr. 533.

26

Respondent elected not to conduct any cross-examination of Mr. Lara. Tr. 557.
33 FMSHRC Page 319

circumstances of the accident, Fitting was able to offer some useful information about guarding
at the Torrance Mine.
Fitting stated that he built the crusher at the Torrance mine. Tr. 571. The arrangement
however is not fixed in the sense that, as mining progressed; conveyors would be added as the
hole in the ground grew. Tr. 573. His work included installing guards. The decision to install
guards is based in part on written information and.in part on experience. Tr, 574. As Fitting
expressed it, "Like tail pulleys have to have guards, B belts have to have guards, drive belts.have
to have guards, flywheels have to have guards. Anything that a person can - - incidental contact,
get to, we guard." Tr. 574 (emphasis added). 27
Fitting also stated that the decision to guard does not take into account whether a miner
could stick something, such as a tool, into a pinch point. Rather, the focus is upon whether one
could trip or fall and make contact through such an event. Tr. 593-594. Yet, Fitting stated he
was aware that miners would clean underneath conveyors using a shovel or a rake to pull dirt out
from under a conveyor and that the task was sometimes done from a kneeling position. Tr. 594.
However, Fitting did not believe such contact could occur 'accidentally' while performing those
cleaning tasks such as with a shovel. Tr. 595.
Accordingly, on the basis of the findings above, the Court concludes that 30 C.F.R. §
56.14107(a) was violated. The return rollerin issue was a moving machine part of the type
covered by the standard. fudeed the Respondent does not contend that the standard does not
apply to such rollers but instead that it does not cover intentional or deliberate action and that it
was guarded by its location. However the Court finds that it was a normal part of Avitia's duties
to clean up and shovel material which would be deposited around the conveyors. Such deposits
occur continually and as an inevitable part of the mining process. It was also not uncommon for
rocks or accumulated debris to become caught in the conveyor system and some sort of blockage
occurred here. That blockage prompted Avitia to make the unwise decision to free the stuck rock
or material using his shovel, with the ensuing accident. 28 The critical point however is that the

27

Fitting stated that the determination whether to add a guard is based on experience and
through MSHA inspections and talking with those inspectors. Tr. 573. He also made claims that
MSHA would always issue such a citation when an accident occurs but such comments are
simply a distraction from the Court's task of determining how the accident occurred and whether
the standard was violated. For the same reason, Fitting's particular understanding of guarding by
location, and that the standard protects only against accidental or inadvertent contact, is not
relevant to determining whether there was a violation. He did not deny that such rollers can pose
a hazard, agreeing that MSHA fatalgrams have noted that miners have been pulled up into return
rollers. Tr. 584.
28

Using R 6 as a reference, Harris stated that where he is standing in that photo, at the
location of his legs, is the point where Avitia would have been when he got caught in the roller.
Of course, he would have been underneath the beam frame at that time, under the belt. Harris
33 FMSHRC Page 320

return roller was easily accessible and certainly did not require "crawling" to gain access to it. As
the Court has noted, the Respondent's own photos show both the relative ease of access and the
very hazardous nature of that moving part. There is in fact, in terms of ease of access, only
relatively minor differences between the fully guarded tail pulley and the return roller which
ensnared Avitia. Even if there had been a written policy advising that conveyors were to be shut
down when material became lodged, the issue of required guarding would be the same because,
as the Commision has noted in Thompson Bros. Coal Co., inadequate guarding issues must be
resolved on a case-by-case basis, which is to include "all relevant exposure and injury variables"
which includes "the vagaries of human conduct." 6 FMSHRC 2094, 2097 (Rev. Comm. 1984).
Here, A vi ti a responded in a manner that would not be difficult to predict. He was working in the
area, performing the directed clean up activity around the grizzly conveyor, when the rock or
other material became lodged and he chose the expedient means to try to solve the problem by
sticking his shovel at the lodged material in an attempt to free it. The impediment to access the
return roller was minimal and insubstantial; simply bending over at the waist, not crawling,
afforded access. Once within the conveyor frame, as Respondent's photos show, one was then
able to stand erect or nearly so to access the return roller. Like the nearby tail pulley, which the
same photo shows was guarded, the return roller needed a similar style guard.
It is true that Fitting believed that guarding by location can exempt the need for
installation of a physical guard, and on that basis expressed the view that, as here, a "roller []
sucked up inside [a] frame," is one such example, because [i]t's not visible, unless you crawl
under the belt," [and therefore] [y]ou couldn't fall onto it. It's not a travelway. You couldn't
stand up into it with your head. If you trip, there's no way to get to it. ...you can't fall down it.
[One] can't walk by and lean on it. It's guarded up inside by the frame." Tr. 604-605. There are
several problems with this view. Notably, the standard only provides an exception where the
exposed moving parts are at least seven feet away from walking or workiilg surfaces. The
Respondent has not claimed nor is there any evidence that the seven foot rule obtains here.
Further, as noted, one would not need to crawl in any sense of that word, to gain access to the
roller and, again as Respondent's own photos show, one could, and indeed Mr. Harris did, stand
up once having moved under the conveyor frame.

Harris conceded that there are no signs warning employees not to work in front of the

stated that it would not have been possible to have been caught up in the roller at some point to
the right of his position in R 6. That is, the only location where the accident could have occurred
is at the point where he is standing in that Exhibit. Tr. 410. Harris' explanation of the point of
entry is the only one that makes sense. Therefore the Court finds that Avitia did get snagged in
the pulley at the location as Harris described and not at some point to the right of that location.
The reason for this is that, as Harris pointed out, if Avitia had somehow entered at an earlier
point he would have been on top of the belt and he would have ended up at the tail pulley with
fatal consequences. Tr. 411-412.

33 FMSHRC Page 321

grizzly conveyor nor other forms of notice to stay away from the area. 29 Tr. 422. The Court
finds that digging around conveyors was a common and necessary practice and that the operator
did not have any signs or barriers warning employees walking or working near exposed moving
parts to stay seven feet away from them.
Although the Respondent has contended in its Post-Hearing Brief0 that the standard in
issue, 30 C.F.R. § 56.14107(a), does not apply to conveyor belt rollers, part of its effort to make
this claim rests upon improperly describing an MSHA Program Policy Manual ("PPM"). fu this
regard, Respondent asserts that the PPM "specifically states the 'similar moving parts' language
of§ 56.14107(a) does not apply to conveyor belt rollers. It then quotes from that PPM, advising
that it provides: "Conveyor belt rollers are not to be construed as 'similar exposed moving
machine parts' under the standard ... " R's Br. at 6. In the Court's view, this description was
misleading.
As the Secretary points out in her Reply Brief, Mainline truncated its quote of the PPM.
The very important full quotation provides:
Conveyor belt rollers are not to be construed as 'similar exposed
moving machine parts' under the standard and cannot be cited for
the absence of guards and violation of this standard where skirt
boards exist along the belt. However, inspectors should recognize
the accidentpo.tential, bring the hazard to the attention of the
mine[] operator, and recommend appropriate safeguards to prevent
injuries.

29

Harris maintained that Avitia was specifically warned not to work in the accident area.
Tr. 423-424. The Court finds that while Harris was an credible and honest witness, such a
statement indicates an awareness of the ease of access to the dangerous moving machine parts.
Harris also admitted to a disincentive to install such guards as they tend to trap the inevitable
material which falls from the conveyor. This works eventually to clog the conveyor instead of
the guardless situation where the material falls directly to the ground. A guard, in short, can
hinder production because of its tendency to collect the falling material withiri it. That means,
periodically the conveyor would need to be shut down, and the accumulated material removed
from within the guard. As noted earlier; it is important, Harris agreed, to keep the plant cleaned
up as, if piles were allowed to build up, and get under the belt, "pretty quick [the] plant would be
buried" and the belts would stop running. Tr. 241-242.
3

°Respondent elected to stand on its initial brief and not file a response brief.
33 FMSHRC Page 322

Secretary's Reply at 2.
It is undisputed that no skirt boards were present at the location where Avitia became
ensnared by the return roller. Accordingly, Respondent's Counsel is reminded that there is an
obligation of candor toward the tribunal.31

The Respondent also asserts that, as the return roller is not one of the eleven listed
specified components in the standard, the standard is ambiguous as to such application. On that
premise, that there is ambiguity, it continues that, under such circumstances, to be supported, the
Agency's interpretation that a non-listed part is included must be reasonable. Referring again to
the PPM and to the text of the standard itself, Respondent asserts that it is not reasonable. R's
Br. at 6-7. Citing Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Rev. Comm. 1984)32 and
the PPM yet again, the Respondent notes that the PPM also states:
This standard is to be cited when a guard at conveyor locations does not
extend a distance sufficient to prevent any parts of a person from accidentally
getting behind the guard and becoming caught, or in those instances when
there is no guard at the conveyor-drive, conveyor-head, conveyor-tail, or
conveyor take-up pulleys.
R's Brief at 8 (emphasis inserted by Respondent).
With those contentions in mind, Respondent cites Sangravl Company, Inc., 30 FMSHRC
1111 (ALJ 2008) where the administrative law judge vacated the citation upon finding that the
chance of inadvertent contact was extremely unlikely as there was no evidence that the roller was
worked on while it was running. 33 Here, however, the Court notes that the accident occurred and

31

See, for eXample, Harrington v. City ofAlbuquerque, 222 F.R.D. 505 (2004) in which
counsel was criticized for omitting the introductory clause of a sentence quoted in its brief. The
truncated quote there was taken out of context and therefore was misleading. Whether
intentional or unintentional, misleading or selective quotations are not helpful to any court.
Unitherm Food Systems, Inc. v. Cooper & Co., 2010 WL 2347040 (N.D. Okla. 2010).
32

In the Court's view, Thompson Bros. Coal Co. does not assist the Respondent's
contentions. As Respondent notes, the Commission stated that the standard applies where there
is a reasonable possibility of contact and that assessment of that is to include "ordinary human ·
carelessness." Further, the Commission stated that inadequate guardirig issues must be resolved
on a case-by-case basis, which is to include "all relevant exposure and injury variables" which
includes ''the vagaries of human conduct." R's Br. at 7, quoting Thompson Bros.
33

Administrative Law Judge decisions have no precedential effect and are useful only to
the extent that the underlying reasoning is adopted by another administrative judge in the case
33 FMSHRC Page 323

there is uncontroverted evidence that work was performed at the roller while it was running.
Although the Court agrees that the roller was inaccessible to accidental contact, it still concludes,
for the reasons stated within, that the standard applies in this case. Similarly, while arriving at a
different conclusion from the Respondent as to the standard's applicability, the Court finds that
Avitia purposefully stuck his shovel near the moving roller in order to remove a rock. This is
because the moving machine part, the return roller here, was of the class of such moving parts
that, when not guarded, can, and in this case did, cause injury. In fact, the very PPM that
Respondent would have th~ Court pay heed to, can be fairly construed to instruct that such belt
rollers are exempt form the standard only when there are skirt boards present. .
It also seems that the Respondent interprets the PPM too liberally when it asserts that it
"states specifically that 30 C.F.R. § 56.14107(a) is intended to address the prevention of
accidental contact with moving machine parts." The portion of the PPM Respondent refers to
actually provides that:
This standard is to be cited when a guard at conveyor locations does
not extend a distance sufficient to prevent any parts of a person from
accidentally getting behind the guard and becoming caught, or in those
instances when there is no guard at the conveyor-drive, conveyor-head,
conveyor-tail, or conveyor take-up pulleys.
Two observations are made about the PPM in this regard. First, the return roller, it has
been found, was not guarded at the time of the accident. Therefore, the PPM language about
"accidentally getting behind the guard" is applicable. Second, as it was not guarded, the second
part of the quoted language, next above, only cites examples of unguarded pulleys. In contrast,
the standard itself is not so limited as it protects against moving machine parts that can cause ·
injury by requiring guards to protect persons from contact with such moving parts.
Respondent alternatively submits that the citation should be vacated because it was not
provided with adequate notice that a guard was required for the cited roller. Under this argument
Respondent asserts that the standard in issue is so vague, incomplete, indefinite or uncertain that
people are left to guess as to it meaning and application. To support this claim, Resppndent
notes that no MSHA inspectors believed that the return roller required guarding.· Respo:µdent
points to the testimony of Harris that an MSHA inspector had advised him that a different return
roller on the Quany's Overland conveyor was guarded by location as it was close enough to the
ground so as to be inaccessible. Respondent contends that the testimony of Aaron Fitting and
MSHA supervisor Lara support this contention as well. As Mainline would have it, the prior
identification by MSHA inspector Gutierrez of some 20 to 30 locations where he identified a
need for guards should be the last word on the locations where guards were needed at the mine.
In connection with its claim of lack of notice, Respondent cites Alan Lee Good d/b/a Good
Construction, 23FMSHRC 995 (Sept. 2001) ("Good Construction") for the test to be applied in

being litigated.
33 FMSHRC Page 324

determining whether a reasonably prudent person would have notice of a standard's
requirements. Applying that test, Respondent maintains that such notice was not provided. R's
Brief at 12.
In sum, Respondent maintains that the standard is vague and broadly worded, that the
PPM provisions contradict the Secretary's position in this litigation and that MSHA had not
issued any prior violations for unguarded bottom rollers in its previous inspections. All of this
adds up, in Respondent's view, to a lack of fair notice. For the reasons set forth in this dedsion,
the Court rejects those contentions.
The Court agrees with the Secretary that the citation issued for the violation of 30 C.F.R.
§ 56.14107(a) applies to the return roller in issue and that the violation was significant and
substantial. The Court has determined that the violation occurred and clearly the absence of the
guard for the return roller contributed to the discrete safety hazard of Avitia' s being caught in the
return roller. Serious injury not only would be likely in such an event, but also the facts of the
accident confirmed that to be the case. Avitia was extremely fortunate to have survived the
event. 34
Turning to the issue of negligence, the Court concludes that the operator knew or should ·
have known of the violative condition or practice and that no mitigating circumstances were

34

Respondent asserts that the Secretary failed to introduce evidence regarding the size of
the Respondent and the mine's violation history. R's Br. at 18. Given that the administrative
law judge must consider the Section 11 O(i) penalty criteria in assessing any penalty and,
consistent with that; make findings of fact and conclusions of law as to each of the statutory
penalty criteria, it is Respondent's argument that the absence of any evidence of those twopenalty criteria means that the Secretary failed to establish a prima facie case supporting the
imposition of a civil penalty and that, as a consequence, the civil penalty assessment must be
dismissed.
In response, the Secretary notes that the parties agreed at the hearing that it would
supplement the record with a certified mine history report post-hearing and that this occurred on
December 16, 2010, with that report designated as Exhibit P 1. As to the size of the mine
operator; Exhibit A was included as part of the civil penalty petition. That Exhibit A listed the
mine hours and the controller hours and it reflects the points assigned for those. Last, it is noted
that the Respondent did not deny the listed mine hours, controller hours, nor the points assigned
to either based on size. This should not be surprising, the Secretary notes, as the mine is the
source of this information which is provided to MSHA. The Court agrees and rejects the
Respondent's claim regarding penalty criteria.
33 FMSHRC Page 325

present. 35 The Court agrees that, relevant to this issue, is the fact that the Respondent was
advised about two months before the accident of the need to guard some 20 to 30 return rollers. 36
Tr. 600. The record supports the conclusion that the configuration of the conveyors was changed
after that, but even if that had not occurred, MSHA' s identification of specific rollers in need of
guards does not insulate an operator from the duty to assess the need for guards at every location
where moving machine parts may be contacted and cause injury.
The Court does not subscribe to the claim that MSHA has permitted guarding "by
location" as applying to circumstances such as those that obtained here. The standard itself
speaks to the only recognized exception, the situation where exposed moving parts are at least
seven feet away from walking or working surfaces. 37 There is neither a contention nor evidence
of record to support the application of the exception here. fudeed one would be hard pressed to
explain how it was clear that the tail pulley so obviously needed to he guarded but yet the return
roller, with nearly the same access, did not. 38 Again, the Respondent's own photographic
exhibits make this plain.

Nor would any contention that because MSHA had identified a number of rollers in need
of guards, those not so named would not need them. It is the operator's, not MSHA' s,
responsibility to identify such moving machine parts. 39 Given the testimony that conveyor belt
clean up is a routine and continuing task, the operator's negligence is properly characterized as
high..

On the basis of the entire record, the Court affirms the appropriateness of the $60,000.00

35

Though not present here, if the conveyor frame had been significantly lower so that an
employee such as Avitia would need to crawl under it to gain access, whether there was a
violation would have been in issue and at a minimum mitigating factors would need to be
addressed in such circumstances.
36

Respondent believes the prior identification helps its position. The Court does not as
such an estoppel theory does not obtain.
37

Thus, there is no "three foot" rule exemption to this guarding standard.

38

fudeed, were it not for the other incredible claims made by Respondent's employee, Mr.
Carpio, having the effect of discounting his testimony overall, his claim that the return roller was
guarded would establish that the Respondent knew there was a need to guard that roller.
39

Accordingly, it is unnecessary for MSHA to show that the operation's conveyor
configuration had changed since the time the Agnecy had identified certain rollers in need of
guards.

33 FMSHRC Page 326

penalty, as specialiy assessed 40 for this section 104(a) citation. The violation, per the standard
set forth in Mathies Coal Co., 6 FMSHRC 1 (January1984), was significant and substantial.
The Court has found that the cited standard was violated, that the absence of the guard presented
a distinct safety hazard contributed to by the violation, that the hazard in fact contributed.to the
resulting injury and that the injury was of a seriotis nature. In addition, there was high negligence
here, as the Respondent was aware of the hazard, knew that clean up was necessary around the
conveyors and knew that material becoming lodged in the conveyor was a common and expected
problem endemic to the .operation and had guarded similar rollers and guarded the adjacent tail
pulley. 41

B. Failure to Notify MSHA; the alleged violation of 30 C.F.R. § 50.10~
Essentially, MSHA established this violation through the testimony of Dwayne Olsen.
Olsen is Mainline's lowdown superintendent at the Torrance Quarry. He also handles
compliance issues and paperwork at the Torrance Quarry. Tr. 453. He wa.s at the site on the day
of the accident. He drove his truck to the accident site, which was only a minute away. Tr. 459.
When he arrived there, Avitia was on the ground being attended to by two employees. Olsen
remained at the scene for only a few minutes before leaving. Tr. 460. He left because he was
one of the individuals who had to make telephone calls. Tr. 461. Based on his quick view of
Avitia, Olsen did not think Avitia had been seriously hurt, even though he understood that he
went through the return roller. Tr. 462. He then drove to the mine office to make the calls.
Although he stated that his first call was to 911 and that, after that, his call sheet directed that
calls be made to the sheriff or state police, it was pointed out to him that, in his deposition, Olsen
stated he first tried to contact corporate officials Mike McKinney and Vern Scoggin42 to inform
them of the accident and to advise them that they were getting a helicopter for Avitia. Tr. 46540

MSHA's Lara also noted that there was a 'special assessment' for this violation, and
that such assessments come about where the violation is of a 'serious nature' and where operator
negligence may be involved. As an example, Lara stated that where an employer knew that an
employee was working around an unguarded moving machine part, a special assessment may be
made. Tr. 545. Lara stated that the investigating MSHA inspector would make a determination
of the negligence involved, and incorporate that in the citation that was issued. Tr. 546. Lara
later reviewed the investigator's recommendation that there be a special investigation and
concurred with that conclusion. Tr. 547.
41

Strictly as a procedural matter, it is noted that Exhibit P 11 was mistakenly included
with the transcript provided by the court reporter, but that exhibit was withdrawn by the
Secretary, as that document refers to idler rollers, not the return roller in issue here. Tr. 552.
42

Olsen remembered that, as he could not reach Scoggin, he called McKinney. Tr. 470.
McKinney is the Respondent's in-house counsel. Scoggin is the company's compliance officer
in Spokane, Washington. Tr. 473.
33 FMSHRC Page 327

466. So, Olsen in fact first called the corporate office. Tr. 467. Yet, at the time he called the
corporate office, Olsen was aware that Avitia needed medical attention. Tr. 468. He also called
911 informing them of the accident and the need for an ambulance. Tr. 468. By Olsen's own
estimate, all of his calls took less than 30 minutes. Tr. 472.
Subsequently Scoggin returned Olsen's call and he asked if Olsen had called MSHA.
Olsen told Scoggill that he had not made that call because he didn't feel there.was a need to do
so at that time, in that the criteria to require such a call had not been met. Tr. 474. He based this
on the fact there had not been a death, he did not feel death was imminent, and the injured had
not been trapped for 45 minutes. Tr. 475. However in the 30 minutes that then elapsed Olsen
made no further inquiries as to Avitia's condition. Tr. 476, 479. He then called the owners of
the property, that is, the lessors of the land to the Respondent. Tr. 476. Olsen also received a
call from Brian Deatly, the mine owner. Mr. Deatly asked if Olsen had called MSHA, and also
advised Olsen to make that call. Tr. 478. But, Olsen did not make the call to MSHA after
concluding his call with Deatly. Tr. 481. Olsen did not make the request for a helicopter for
Avitia but he conceded that once he learned ahelicopter was on the way, he knew that the matter
was more serious. Tr. 480-481.
Eventually Olsen did call MSHA at about 2 p.m. or 2:35 or 2:37. He could not recall
exactly the time of the call. Tr. 482. This call was made after the helicopter had departed, Tr.
482. Olsen continued to maintain that he did not feel the criteria to make the call within 15
minutes had been met. Tr. 483. Yet, he did not feel his call could wait until the next day because
"an individual [had been] hurt." Tr. 484. According to Olsen it did not dawn on him about the
seriousness of Avitia's condition until the helicopter EMT told him that Avitia was in "tough
shape."43 Tr. 485. Ex P 10 is an MSHA form that Olsen filled out, which documents the date he
completed it. Tr. 488. Under questioning by Respondent, Olsen was directed to Exhibit R 12,
which re:fleet his notes, made the night of the accident. Tr. 491. Olsen agreed that, once he
became aware of the extent of Avitfa' s injuries, he did place the call within 15 minutes of that.
Tr. 493. He reiterated that, when he first saw Avitia, his believedthat his injuries were not life
threatening. Tr. 494. The only location for calls to be placed reliably was at the mine office.
That office is really a storage container that was converted to serve as an office. Tr. 495. While
at that office, making calls, he did receive a call from an employee who was with Avitia and who
inquired when the ambulance would be arriving. Tr. 496. But, Olsen maintained that he did not
inquire how Avitia was doing when the employee called.· Tr. 497. Still, while he knew an
ambulance was on the way, he did not consider the situation life threatening. At any rate, Olsen
maintained that he did not know of the seriousness of the situation until the paramedic with the

43

The Court accepts Mr. Olsen's testimony that he did not intentionally wait to call
MSHA until after he had called corporate heads. Tr. 523-524.

33 FMSHRC Page 328

helicopter so advised him. Tr. 498. 44
Aaron Fitting's testimony45 was informative as to the violation stemming from the failure
to report the accident to MSHA. Fitting stated that on the day of the accident he received a call
from Dwayne Olsen and during that call he inquired if Olsen had called MSHA. Tr. 569.
Although Fitting testified that Olsen told him that he didn't think there was anything wrong with
Avitia and thus there was no needto call MSHA, Fitting told him he should still call MSHA. Tr.
569. After that, Fitting stated that it was his understanding that Olsen then talked to the
paramedics and after that, called MSHA. Olsen then called Fitting again to report that he had
called MSHA. Tr. 570. Fitting agreed that when he heard from Mr. Harris the first time about
the incident he could have, but did not, direct that MSHA be called. Tr. 586. On re-direct,
Fitting, in attempting to explain his failure to make a call to MSHA, agreed he wasn't at the site
so his knowledge of Avitia's condition was very limited. Tr. 599.
Regarding the alleged violation of 30 C.F.R. § 50.10, as set forth in Citation No.
7885927, Respondent acknowledges that, pursuant to that section there are specific types of
accidents thatmust be reported immediately, that is, within 15 minutes of the accident. R's Br.
at 13-14. Respondent cites Newmont USA Limited, 32 FMSHRC 391, (2010), an administrative
law judge decision, in support of its position that the event in this case did not have a reasonable
potential to cause death. Of course, the particular facts in Newmont are entirely different from
this matter, so the value of citing that case is minimal. Certainly the Court agrees with the
Respondent's contention that an injury, by itself, does not trigger the reporting requirement.
Rather, the. key determinant is when the injury presents a "reasonable potential to cause death."
Nor does the Court take issue with Respondent's contention that the particular circumstances and
conditions at the accident site control the outcome and that, in fairness, there must be "a degree
of discretion" afforded to the operator's determination of the need to report any given accident.
R's Br. at 16. Still, as the Respondent observes, the Commission has stated that the while the
operator must have a reasonable opportunity for its investigation of an event, that must be
"carried out ... in good faith and without delay and in light of the regulation's command of
prompt, vigorous action." Id. at 16, citing Consolidation Coal Company, 11FMSHRC1935,
1938 (Rev. Comm. 1989).
Examining the particular facts, Respondent asserts that Olsen called 911 within minutes
of the accident ''and took action to implement Mainline's procedures to provide Mr. Avitia with

44

R 12, Olsen's August 13, 2009 memo to Mainline's Counsel was admitted into the
record. Tr. 511.
45

Fitting, as noted earlier, is the operations manager for Mainline Rock.
33 FMSHRC Page 329

the best post-acCident care he could."46 Respondent maintains that Olsen acted reasonably,
deciding that MSHA did not need to be notified immediately''based on [Olsen's assessment of]
the condition of Mr. Avitia a few minutes after he was injured." R's Br. at 17. Further,
Respondent contends that "once Mr. Olsen learned the nature of Mr. Avitia's injuries, [he]
notified MSHA within 15 minutes." Id. At bottom, Respondent contends that Respondent was
not aware of the severity of Avitia's condition until ·the EMT informed Harris and Olsen of that.
R's Br. at 18.
The Court realizes that it would not be fair to simply look at the facts months later and
then pronounce what the proper response should have been and it does not do so here. On the
other hand, itis fair to characterize Olsen's behavior as remarkably non-inquisitive about
Avitia's condition and injuries. Based upon all of the facts known to Olsen at the time and those
facts he could have developed with minimal additional inquiry, it is clear that a reasonable
person would have concluded that the call was required at the time Olsen viewed Avitia at the
accident scene. One does not have the discretion to remain uninformed about the circumstances
of the accident and then assert that the reasonable potential for the accident to cause death was
unknown. 47
.
Accordingly, based on the above findings and discussion, the Court finds that the cited
standard was violated and that the time starting the obligation to call MSHA began when Olsen
first arrived at the scene of Avitia's accident. Thus, the Court finds that at least an hour and a
half elapsed after the time for the required call to MSHA had passed. The negligence under these
circumstances was high, not moderate. Because the negligence was high, not moderate, the
Court modifies the citation to reflect that and increases the penalty to $6,000.00.
Civil Penalty Assessment·
Bas~d on the findings above, the Court assesses a civil penalty in the total amount of

$66,000.00.

46

While the call was made to 911, the claimed other action Olsen 'took[] to implement
Mainline's procedures to provide Mr. Avitia with the best post-accident care he could." is not
supported in the record. ·
47

The Respondent asserts that MSHA's preamble to the final rule for the 15-minute
notification requirement supports its position. In this regard, it cites that preamble's discussion
of the situation where one had to choose between saving a miner's life and calling MSHA and
the Agency's acknowledgment that such a choice would constitute extenuating circumstances for
enforcement purposes. The problem with that reference is that no such dire choice was present in
this case. Ultimately, the Court agrees that the determination whether the call is required is to be
"based on what a reasonable person would discern under the circumstances." R's Br. at 18,
citing Preamble to notification rule's reference to the Commission's decision in Cougar Coal, 25
FMSHRC 513 at 521 (September 5, 2003).
33 FMSHRC Page 330

ORDER
Within 40 days of the date of this decision, Mainline Rock and Ballast, fuc., Respondent, IS
ORDERED to pay a total civil penalty of $66,000.00 for the violation of 30 C.F.R. 14107(a),
as set forth in Citation No. 7885926 and for the violation of 30 C.F;R. 50.10, as set forth, and as
modified by the Court, in Citation No. 7885927. Upon payment of the civil penalty, this
proceeding IS DISMISSED.

William B. Moran
Administrative Law Judge

33 FMSHRC Page 331

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19TH STRl;ET, SUITE 443 .
DENVER, CO 80202-2500
303-844-5266/FAX 303-844-5268

Februaryl:, 2011
CONTEST PROCEEDING

ALLGEIER MARTIN & ASSOCIATES,
Petitioner,

Docket No. CENT 2009-531-RM
Citation No. 6471439; 06/11/2009
Mine: Carthage Crushed Limestone
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
CNIL PENALTY PROCEEDING
v.
Docket No. CENT 2010-50-M
A.C. No. 23-00028-191940 CKP
ALLGEIER MARTIN & ASSOCIATES,
Respondent.

Mine: Carthage Crushed Limestone
DECISION

Appearances:

Sarah White, Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado for the Petitioner.
Jack Slate , Safety Manager, Carthage Crushed Limestone, Allgeier Martin
& Associates, Joplin, Missouri for Respond~nt.

Before:

Judge Miller

These cases are before me on a petition for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"),
against Allgeier Martin & Associates, 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 case involves
one violation alleging a failure to provide appropriate training to three contractors, employed by
Allgeier Martin and working at the Carthage Crushed Limestone mine. The citation was issued
by MSHA under section 104(a) of the Mine Act. The parties presented testimony and
33 FMSHRC Page .332

documentary evidence at the hearing held on January 11, 2011 in Denver, Colorado. A number
of witnesses appeared by telephone.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Allgeier Martin & Associates, ("Allgeier" or "Respondent") is a contractor who conducts
underground surveying activities at the Carthage Limestone mine (the "Mine") located in Jasper
County, Missouri. The Respondent· agrees that it is subject to the jurisdiction of the Mine Safety
and Health Administration and that the Administrative Law Judge has jurisdiction to issue this
decision. (Tr. 9-1 O); Stip. 1- 4. On June 11, 2009, MSHA inspector Keith Markeson conducted
a regular inspection of the Mine and its contractor, Allgeier. As a result of the inspection, the
violation contested herein was issued. Following the testimony and presentation of evidence, a
decision was issued on the record. The decision is set forth below and includes necessary edits.

A. Order No. 6471439
On June 11, 2009, Inspector Markeson issued an order
withdrawing three miners employed by Allgeier Martin,
the contractor at the Carthage Crushed Limestone Mine,
in Carthage, Missouri. The parties have stipulated that
the mine and Allgeier Martin are subject to the
provisions of the Mine Act and are miners as defined
by the act and that the administrative law judge has
jurisdiction in this matter.

Inspector Markeson cited a violation of
30 CFR 48.5, which requires miners to have new miner
comprehensive miner training before working
underground. The parties agree that the three miners
listed in the citation had not received comprehensive
training, instead they had received hazard training
only. The question is then are they required to have
the comprehensive training.
Inspector Markeson's citation, [number] 6471439
reads, "Three contractor miners working in the mine
had not received the required MSHA 40-hour new miner
training prior to performing surveying duties underground.
The contractor was aware of the Part 48 training requirements
but believed it was unnecessary for the type of work being done.
All three miners had no previous mining experience. The operator
Is herby ordered to withdraw Christopher Ackerson, Jeremy
Stovall, and Shane Powell from the mine until they

33 FMSHRC Page 333

have received the required training. The Federal Mine
Safety and Health Act of 1977 declares that an
untrained miner is a hazard to himself and others."
This was the citation-- the order, []was issued under48.5(a),
a significant and substantial violation of [a] 104(g) order.
The [] issue in this case is whether or not these
three men were miners as identified under the Part [4]8
training provisions of the Mine Act, and in .particular,
[whether they qualify as miners pursuant to the
definition of a miner at 30 CFR 48~2. The transcript
has various references to an (a)(l) miner [andto]an (a)(2) miner.
[Those references stem from] 30 C.F.R 48.2(a)(l) .
[which explains when] a miner [] is required to have
comprehensive training. 48.2(a)(2) [on the other hand, sets forth when]
a miner is required to have hazard training [only].
So the question is which of these categories do.these
three miners fit into.
I will note that Allgeier has worked at Carthage for a minimum
of 17 years, providing surveying services,.and it wasthe
understanding of Allgeier that the hazard training under [ ]
48.2(a)(2) is what was required, [not the comprehensive
training provided by 48.2(a)(l)].
Inspector Markeson issued the citation
based on his conversation with the three surveyors.
Mai:keson [credibly] testified that he learned that the three
surveyors traveled into the mine in their own pickup,
that they used their own manlift to lift up to the
roof in order to drill, place spads or dowels. They
also told Markeson that if they saw loose material,
they scaled it down. The miners had no previous
mining experience. He did not observe the mining
activities, but issued his order based upon what he
learned from talking to the three men.
Mr. Stovall testified on behalf of the Respondent.
He was on the survey crew, and he testified that
as a surveyor he sets points for grid mapping,
he stays out of the production areas,[ and] that
the surveyors are always escorted by a professional
miner. He testified that the [surveyors] ask [for assistance]

33 FMSHRC Page 334

if they see hazards that may need to be removed. He· drills,
places spads, and in his view is not part of the
·
m1mng process.
The key [to] Mr. Stovall's testimony
is that he could not refute what Mr. Markeson
testified to. He does not recall what was asked by
Markeson nor does he recall what he told Markeson. It
is his recollection that Markeson talked only to him,
not to the other [two surveyor] miners, but I credit the
testimony of Inspector Markeson and find that he
indeed credibly testified to [the facts he learned by
speaking to] all three miners and did learn the facts as
presented in this case.
[]. Stovall did confirm that there was a pickup truck
driven underground by the surveyors, that they used
the manlift underground, as Markeson indicated, and he
did -- Stovall did testify that the surveyors, or at
least one of them, received training in the operation
of the manlift from the rental company.
Mr. McKay, who testified, works for
Carthage as a laborer. He testified that the mine
areas are examined once each shift, that Carthage Mine
examines the areas prior to surveyors doing their
work, and, in fact, it is required by the Mine Safety
and Health Act that these areas be examined at the
beginning or during each shift. Mr. McKay also
testified that Allgeier employees are escorted
throughout the mine and are not allowed into certain
areas underground. The mine has a policy for identifying
and dealing with hazards at the mine. McKay was not .
present when Markeson spoke with [the three Allgeier]
surveyors and could not testify about any escort at the
time of the citation. He could not refute Markeson's
remarks or be specific about the incidents that occurred
at the time the citation was issued. He did testify that
the examination of the roof is done visually each shift.
Finally, Mr. Sears testified on behalf of [Allgeier Martin].
He explained that he lines out the work for the surveyors
at Allgeier Martin, that Allgeier has been surveying and
33 FMSHRC Page 335

producing maps for Carthage for 17 years, and that the
policy is that Allgeier employees are told to staywiththe
miners' representative and in the area as the mine directs.
Allgeier does not direct mining.
Based upon all of the testimony and talcing into
consideration that the mapping is done infrequently,
once a year, with some other updates, and that the
workplace is examined each shift by the mine, also that
the surveyors are mapping and using hand or hammer
drills and then hammer or pound in spads or dowels,
and that [ ] they are at the mine for no longer than five
days at a time based on Respondent's Exhibit A; taking
all of this into consideration, I find that the Secretary has
shown a violation of the mandatory standard, primarily
because the workers have stepped outside of the
limited role of a surveyor.

Mr. Weaver, the education and training supervisor,
[for MSHA] agrees that the activities of the miners,
[and not the title given to their job], is what subjects them
to comprehensive training provisions. Markeson and
Weaver credibly testified, and I agree, that the basis
for requiring the comprehensive training is not based
upon the job title but on the activities done.
The activities that place these men
within the meaning of a miner who is required to have
comprehensive training are that they operate mobile
equipment underground, they drive their own pickup
underground into the mining environment, they use a
manlift; according to what they told Mr. Markeson,
they find loose roof when they're drilling, they scale
it down, and the guides that they place are used in
the normal mining activity, notjust for mine mapping.
These men fit the definition of a miner under [30] CFR
48.2(a)(l). They are engaged -- 48.2(a)(l) [further explains]
that a miner means [ ] any person working in
underground mines who is engaged in the extraction and
production process. I find that the activities of
these miners do, indeed, cause.them to be engaged in
the production process.

33 FMSHRC Page 336

The definition [of minerJ continues on to
[include in the definiation] that it also applies to anyone
who is regularly exposed to mine hazards, and I understand
that the program policy manual says regularly exposed means
more than five days. However, someone who is exposed
every day for five days, I find to be regularly exposed
to the hazards of the roof in the underground mine and
the hazards of using this heavy equipment -associated with using the heavy equipment. Therefore,
the miners fit the definition of 48.2(a)(l). They are
engaged in production or regularly exposed to mining
hazards. Once they fit under the definition, they
must have the comprehensive training.
Inspector Markeson also designated this
citation as a significant and substantial violation.
As he says in his citation and as the commission has
often noted, the Mine Act [] acknowledges that an
untrained miner is a hazard or a danger to himself and
to others. A training violation is a very serious
violation. Untrained miners who are operating a
manlift to the top of the roof and theri drilling and
hammering are being exposed to the hazards of falling ·
roof. They are also exposed to the hazards of
operating equipment underground in a mine. Exposure
to those hazards will result, as Inspector Markeson
explained, [in an accident causing event
that will result in] lost workday injuries or worse.
I [find that] an untrained person is a hazard
to others as well as to himself. Markeson also
testified that an injury would occur due to the lack
of training. Injury would be, as I noted, lost work
injuries or it could be worse. The surveyors are
exposed to loose rock, bad air quality, even to the
ability to escape in the event of an accident. All
would result in an accident-causing event, and that
accident-causing event would result in a serious
injury to the miner.
As Inspector Markeson indicated, the
mine demonstrated moderate negligence in this
circumstance. [I agree with that designation.]

33 FMSHRC Page 337

[It is] the commission judges who [determine the appropriate]
penalty, [in a case such as this based upon the
criteria delineated in section 110 of the Act].
The Secretary has proposed a penalty of $112. I
find that the Allgeier Martin is [ ] a small contractor
working at a medium-sized mine. The ability -- the
payment of a penalty would not hinder its ability to
continue in business.
I have reviewed the history of the mine,
which is Government Exhibit 1. I find,that there are
really no -- there's really no history of this
particular contractor receiving citations -- there are
two on there, both in contest -- that [ ]
tenninating the citation was removing the men from
the mine, and all of those are considered in assessing
a low penalty. The gravity ofthis violation is
serious, and as I noted, the negligence is moderate.

Normally, I would assess a penalty of at
least a thousand dollars in a training violation,
probably more. However, given the fact that this
mine, I believe Allgeier Martin had a good-faith .·
belief that they were doing the right thing, that they
had policies in place, and thatthey were following
what they thought to be the law, and that is that .
their surveyors were required only to have hazard
training and not comprehensiye training [and therefore
the negligence is less for purposes of the penalty]. The
mine [did not understand] that [it is theJactivities of the
miners, not their designation as a surveyor, but
their activities, [that] subjected them to a higher standard
of training in this instance.

So based upon all of those factors, I assess a
$200 penalty in this case.
(Tr. 122-129).

II.ORDER
Based on the criteria in section 110(1) of the Mine Act, 30
U.S.C.§820(1), I assess a penalty of $200.00 for the violation as discussed
33 FMSHRC Page 338

above. Allgeier Martin & Associates, is hereby ORDERED to pay
the Secretary of Labor the sum of$200.00 within 30 days of the
date of this decision.

'\\~
Marg~ ~'
~
Admin trative Law Judge

Distribution: (Certified U.S. First Class Mail)
Sarah White, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
800, Denver, CO 80202

Jack Slates, Safety Manager, Americold Logistics LLC, 1331 Civil War Rd., P.O.
Box 1086, Carthage, MO 64836

33 FMSHRC Page 339

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19"' Street, Suite 443
Denver, CO 80202-2500
303-844-3577/FAX 303-844-5268

February 1, 2011
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 2009-22-M
A.C. No. 04-00196-163109
Docket No. WEST 2009-101-M
A.C. No. 04-00196-166068

v.
LEHIGH SOUTHWEST CEMENT CO.,
Respondent

Tehachapi Plant

DECISION
Appearances:

Andrew J. Schultz, Esq., Office of the Solicitor, U.S. Department of
Labor, San Francisco, California, for Petitioner;
Brian Bigley, Safety Manager, Lehigh Southwest Cement Company,
Tehachapi, California, and Tim King, Safety Coordinator, Lehigh
Southwest Cement Company, Redding, California, for Respondent.

Before:

Judge Manning

These cases are before me on petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (''MSHA") 1
against Lehigh Southwest Cement Company ("Lehigh") pursuant to sections 105and110 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The
parties introduced testimony and documentary evidence at a hearing held in Bakersfield,
California, and filed post-hearing briefs.
Lehigh operates a limestone quarry and cement plant in Kem County, California. This
facility employed an average 126 people in 2008. These cases involve ten citations issued under
section 104(a) of the Mine Act and two orders issued under section 104(d). The Secretary
proposes a total civil penaltyof$43,356 in these cases.

I. DISCUSSION WITH FINDINGS OF FACT
CONCLUSIONS OF LAW
A. Order No. 6440388
On June 26, 2008, MSHA Inspector David Reynolds issued Order No. 6440388 under
section 104(d)(2) of the Mine Act alleging a violation of 30 C.F.R. § 56.17001, as follows:

33 FMSHRC Page 340

The lights located inside the quarry locker room were not being
maintained. One of the lights was missing a light bulb and the
other light failed to function: when tested. This condition was
reported to the quarry supervisor and had been written up in the
quarry message board for over a week. Bret Marrow, quarry ·
supervisor, stated that he was aware of this condition and failed to
correct the hazard. This condition creates a trip and fall hazard that
could result in an injury. The quarry operates a night shift and this
locker room is accessed on all shifts.
(Ex. G-2). The inspector determined that an injury was unlikely but that if an injury did occur it
would result in lost workdays or restricted duty. He determined that the violation was not of a
significant and substantial nature ("S&S") and that the company's negligence was high. Section
56.17001 provides that "[i]llumination sufficient to provide safe working conditions shall be
provided in and on all surface structures, paths, walkways, stairs, switch panels, loading and
dumping sites, and work areas." The Secretary proposes a penalty of $4,000 for this order.
Inspector Reynolds testified that the room in question was a combination break room and
locker room. He noticed that there was a notice on a white b.oard at the quarry that the lights
were not working in the break room. When he tried to turn on the lights at the entrance to the
room, nothing happened. (Tr. 15). He said that there were two ceiling fixtures in the room. ·
There was some ambient light from a television that was on in the room. (Tr. 15, 21). There
were also some windows, but they did not let in much light. There were chairs, a recliner, and
benches in the room that created a trip hazard. The quarry supervisor told him that he was aware
that the lights were out, but he did not feel it was a priority item to get corrected. (Tr. 16).
Inspector Reynolds determined that the cited condition violated the safety standard
because miners change their clothes in the room between shifts, take breaks in the room, and
store their work clothes and hard hats in the room. He considered the room to be a work area at
the mine because miners use it to put on work clothes and safety equipment. (Tr. 34-35). At the
time the order was issued, the quarry operated an evening shift that ended after dark. (Tr. 18).
The inspector did not use a meter to measure the amount of light in the room and he does not
believe that MSHA has issued any guidelines concerning the amount of light that is required.
(Tr. 36). There was also an electrical panel in this room. (Tr. 21 ). The inspector believed that it
was unlikely that the violation would contribute to an injury. He believed that the operator's
negligence was high, however, because management was aware of the condition. Reynolds'
supervisor accompanied him during this inspection, and Reynolds testified that a miner told the
supervisor that the message about the lights in the break room had been on the white board for
weeks. (Tr. 19). The message was then erased and then rewritten a few days later, according to
this miner. A few miners also told Inspector Reynolds that the lights had been out for several
days. (Tr. 40). Based on what was written on the white board, he assumed that the lights had
been out for about two weeks. Id.

33 FMSHRC Page 341

The inspector determined that the violation was the result of the operator's unwarrantable
failure because management knew about the condition and did nothing to fix it despite the fact
that there are electricians erriployed by the operator. (Tr. 19). Safety Supervisor Brian Bigley
told Inspector Reynolds that the miners who use the break room could have easily gotten a fresh
light bulb if they wanted more light in the break room. (Tr. 19). The inspector believed,
although he was not present at the time, that in addition to new light bulbs, at least one light
fixture needed to be repaired by an electrician. (Tr. 20).
.

.

Brian Bigley testified that the room cited by the inspector was not a work area but was a
break room. (Tr. 60). There are a few chairs, a recliner, and a picnic table in the room. Miners
want the room dark when they take their breaks and often unscrew the light bulbs so that the
lights cannot be turned on and wake them. (Tr. 61 ). Bigley testified that there was plenty of light
in the room to see. An open doorway to an adjacent lighted room and an outside door with .a
window allow light to enter the room. Bigley testified: "I wouldn't want to read a book in that.
room, but for the purpose of that room, basically watching TV and sleeping, lighting is just about
perfect for them." Id.
Both Inspector Reynolds and Brian Bigley took photos of the break room. The
inspector's photos were taken with a fl.ash but Bigley did not use a flash in most of his photos.
He testified that photo 39 was taken with ambient light and photo 40 was taken with a flash. (Tr.
62; Exs. R-39 & R-40). Both photos are of an NFL calendar that is taped to a locker. Bigley·
testified that mine management generally gives miners "pretty lenient free run" in the break
rooms "in order to make it comfortable for them." (Tr. 63). Bigley testified that he talked to the
miner who spoke with the inspector about the white board. The miner told Bigley that the
message said "[n]eed light bulbs." (Tr. 64). Bigley testified that he has seen miners unscrew the
light bulbs slightly when they want it dark and tighten them back in when they want more light.
Bigley testified that another citation was issued because the cover of the junction box for
one of the I!ght :fixtures was not secure. Once that condition was fixed, new light bulbs were
installed in the two ceiling fixtures. (Tr. 65-66). Bigley testified that no auxiliary lighting was
brought in by the electricians to do this repair work because there was enough light in the room .
for them to safely work. Id.
The Secretary argues that the order should be affirmed as written by fuspector Reynolds.
Lehigh management knew about the violative condition for some time and did not take
reasonable steps to correct it. Lehigh argues that the order should be vacated because (1) the.
safety standard does not apply to the break room because it is not a "work area" as that term is
used in the standard; and (2) the lighting in the room was more than adequate for the room. The
subjective opinion of an MSHA inspector is insufficient to establish a violation. Inspector
Reynolds did not use a meter to measure the amount of light in the room.
I find that this order should be vacated. The safety standard requires that "[i]llumi:p.ation
sufficient to provide safe working conditions shall be provided in and on all surface structures,

33 FMSHRC Page 342

paths, walkways, stairs, switch panels, loading and dumping sites, and work areas." Although
the cited area may not be a ''work area," I find that it was a "surface structure" as that term is
used in the safety standard. Sufficient illumination must be provided in all surface structures.
The question is whether the illumination was sufficient to "provide safe working conditions." I
hold that one must take into consideration the work being performed in the cited area when
analyzing whether the Secretary established a violation. Capitol Aggregates, Inc., 3 FMSHRC
1338 (June 1981). The room cited by Inspector Reynolds primarily functioned as a break room
for the miners rather than as a working area. I credit the testimony of Bigley that miners often
unscrew the light bulbs in the room so that the room is not too bright. Natural light enters the
room from a doorway and windows. The television also provides some light. The photographs
show that the room is not so dark that it presented a significant hazard to miners, especially
considering the purpose of the room. The plant is located in a desert climate that is very hot and
dry in the summer. The inspector did not see the conditions inthe room at night and I cannot
speculate as to whether the conditions would violate the safety standard after the sun sets. See
W.S. Frey Company, Inc., 16 FMSHRC 975, 1008-09 (April 1994) (ALJ). This order is vacated.

B. Order No. 6440389
On June 26, 2008, MSHA Inspector Reynolds issued Order No. 6440389 under section
104(d)(2) of the Mine Act alleging a violation of30 C.F.R. § 56.20011, as follows:
The entrance to the level #-1 bench located in the quarry was not
barricaded and posted to prevent entry. The bench is located next
to the haulage road where mobile equipment travels. The
unprotected bench was approximately 250-ft across and was 40-ft
; to the working level below. This condition creates a hazard to the
miners traveling in this area.
(Ex. G-3). The inspector determined that an injury was reasonably likely and that if an injury
were to occur it would be fatal. He determined that the violation was S&S and that the
company's negligence was high. Section 56.20011 provides, in part, that "[a]reas where health
or safety hazards exist that are not immediately obvious to employees shall be barricaded or
warning signs shall be posted at all approaches." The Secretary proposes a penalty of $17,301
for this order.
Inspector Reynolds testified that he inspected a bench where miners had previously been
working. {Tr. 22). There was no berm on the "open face of the bench." Id. He was advised that
work had been performed on the bench earlier in the shift and he observed fresh tire tracks in the
area. Some ofthe tracks were very Close to the edge of the bench. The drop-off to the next level
was about 35 to 40 feet. There was nothing to prevent anyone from entering the bench and the
inspector believes that there were maintenance personnel in the area at the time of his inspection.
He did not observe any equipment near the edge of the bench. {Tr. 44). Inspector Reynolds
believed that there was a significant risk that someone operating a vehicle or otlier mining
33 FMSHRC Page 343

equipment could get too close to the edge and fall do:\vn to the next level. There were no signs 01
barricades warning miners of the danger. (Tr. 25).
Re}'nolds further testified that it is not a common practice in the mining industry to leave
benches open. Lehigh had been cited for-the same type.ofviolation in the recent past. (Tr. 26)..
The hazard was not obvious. Given the topography of the area, it is not easy to see the edge of
the bench and the conditions change as mining progresses. A heavier truck could get close
enough to the edge of the bench that the ground could give way even if the truck were not right a1
the edge. {Tr. 28).
Inspector Reynolds determined that the violation was S&S because it was only .. a matter
of time before somebody ... either drove off that [edge] or got· out on loose ground or weak
ground and the possibility was there for an injury." (Tr. 30). The negligence was high because
the mine had been cited for a similar violation on March 13, 2008. The supervisor advised
. Reynolds that he was not aware that the area had been "left unattended." (Tr. 32).

Mr. Bigley testified that the hazard would be obvious to anyone who works at the quarry.
(Tr. 66). Miners are well aware that, during the process of mining, Lehigh is ''tearing the
mountain down" and that there will be drop-offs on benches, Id, Nobody, including contractors,
is allowed to travel to the benches without authority from the quarry manager. Contractors are
escorted to the bench by an experienced person. Nobody drives close to the edge of the bench
and the miners have a "mental map" of the benches as mining progresses. (Tr. 70). Miners are
:frequently trained to be aware of this hazard. Warning miners that there is an edge to a bench is
like ''warning someone that there mightbe waterin the ocean." (Tr. 71). Installing signs will not
improve safety at the quarry. (Tr. 82) .. If-any unauthorized person drove up to a bench, the
quarry manager or his designee would .call the vehicle on the radio and ask what he was doing
there. Work is not performed on the benches after dark because there is no lighting on the
benches.
The Secretary argues that there were no warning signs or barricades for the cited bench,
The hazard was not obvious because it was difficult to see the edge of the bench due to the
topography. The area was open and accessible to all vehicles. It is not a common practice in the
industry to leave benches open. The violation was S&S because it was reasonably likely that the
lack of a barricade or warning sign would cause someone to drive off the bench or get too c1ose
to the edge. The violation was the result of Lehigh's high negligence because it had been
recently cited for a similar violation.
Lehigh argues that the hazard was immediately obvious to anyone in the mining industry,
includi11g its own employees. The unsubstantiated opinion of the inspector is insufficient to enter
· a finding that the hazard Was anything but obvious. In addition, warning signs were posted at the
mine warning anyone that hazards were present at the mine. Lehigh's negligence was not high
because the miners were all well trained and the supervisor was not aware that the bench posed a
hazard. Finally, the likelihood of an injury was quite low.

33 FMSHRC Page 344

I find that the Secretary established a violation but that she did not establish that the
violation was S&S or the result of the unwarrantable failure of Lehigh to comply with the safety
standard. I find that a safety hazard existed on the cited bench that was not immediately obvious
to employees. I credit the testimony of Mr. Bigley that employees do not randomly enter the
bench and that those employees who need to work on the bench are generally aware of the edge.
It must be kept in mind, however, that the Commission interprets safety standards to take into
consideration "ordinary human carelessness." Thompson Bros. Coal Co., 6 FMSHRC 2094,
2097 (Sept. 1984). In that case, the Commission held that the guarding standard must be
interpreted to consider whether 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 enter the bench to perform minor maintenance on a piece of equipment without
paying close enough attention to his surroundings. A warning sign may help him remember to be
more aware of the edge of the bench. "Even a skilled employee may suffer a lapse of
attentiveness, either from fatigue or environmental· distractions .... " Great Western Electric Co.,
5 FMSHRC 840, 842 (May 1983). I agree that putting up a warning sign or barricade is not
foolproof, but it may prevent someone from placing himself in danger.
The second sentence of the safety standard provides that "[w]arning signs shall be readily
visible, legible, and display the nature of the hazard and any protective action required." The
signs referenced at the hearing by Lehigh are legible but they do not in any way display the nature
of the hazard. They are general warning signs telling people that the area ()f the quarry is
restricted and that mine hazards are present. (Ex. R-17, R-18).
An 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'l 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: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard - that is, a merumre 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.

33 FMSHRC Page 345

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary ofLabor, 861
F.2d 99, 103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987)
(approving Mathies criteria).
In US. 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 of a hazard that·
·must be significant and substantial. U.S. Steel Mining Co., Inc., 6
FMSHRC 1866, 1868 (August 1984); US. Steel Mining Co., Inc.,
6 FMSHRC 1573, 1574-75 (July 1984).
This evaluation is made in terms of"continued normalnrining operations;" U.S. Steel, 6
FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988);
·
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
I find that the violation was not S&S. The evidence establishes that it was highly unlikely
that anyone would get close to the edge of the bench. Inspector Reynolds admitted that the tracks
he observed that were close to the edge, including the tracks which seemingly went over the edge
of the bench, could have been made before the most recent blast and excavation of the materiaL
(Tr.· 50, 55). There is no proof that anyone has driven or will drive a vehicle near the edge of the
bench. It is significant that Inspector Reynolds was particularly concerned that a miner could
enter the bench without authorization in order to take a break or hide from his supervisor. I
credit the testimony of Bigley that the benches are closely monitored by quarry management, that
Lehigh has administrative controls in place to keep people away from benches when work is not
being performed, and that Lehigh :frequently trains its employees on the hazards present. It was
not reasonably likely that anyone would sustain an injury as a result of this violation.
I also find that Lehigh's negligence was. moderate and was not the result of Lehigh's
unwarrantable failure to comply with the standard. The term ''unwarrantable failure" is defined
as aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9
FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct," "indifference," or the "seriou8 lack of reasonable
care." Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991).
Aggravating factors include the length of time that the violation has existed, the extent of the

33 FMSHRC Page 346

violative condition, whether the operator has been placed on notice that greater efforts are
necessary for compliance, the operator's efforts in abating the violative cqndition, whether the
violation was obvious or posed a high degree of danger, and the operator's knowledge of the
existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000);
Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Windsor Coal Co., 21 FMSHRC
997, 1000 (Sept. 1999); Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). 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. Consolidation Coal Co., 22
FMSHRC at 353.
Although the quarry had been cited at least once in the past for a similar violation, the
violation had not existed for a significant length of time, the violation did not pose a high degree
of danger, the violation was not obvious, and the quarry supervisor was apparently unaware of
the condition. I find that the conduct of Lehigh's managers did not rise to the level of reckless ·
disregard, intentional misconduct, indifference or a serious lack of reasonable care.
For the reasons set forth above, Order No. 6440389 is modified to a section 104(a)
citation with moderate negligence and moderate gravity. A penalty of $5,000 is appropriate.

C. Citation No. 6440386
On June 26, 2008, MSHA Inspector Reynolds issued Citation No. 6440386 under section
104(a) of the Mine Act alleging a violation of30 C.F.R. § 56.11002, as follows:
The walkway and access to the stairs leading .down to the quarry
maintenance shop was missing a section of the hand railing,
measuring 11-ft on the right side. The drop off was estimated to be
approximately 20 to 30-ft.
(Ex. G-1 ). The inspector determined that an injury was reasonably likely and that if an injury
were to occur it would be permanently disabling. He determined that the violation was S&S and
that the company's negligence was moderate. Section 56.11002 provides, in part, that
"[c]rossovers, elevated walkways, elevated ramps, and stairways shall be of substantial
construction provided with handrails and maintained in good condition." The Secretary
proposes a penalty of $2, 106 for this citation.
Inspector Reynolds testified that there was an area where employees park their cars and
just beyond that area there was a drop-off of about 20 to 30 feet. (Tr. 93). There is a stairway
leading down this hill to the maintenance shop. This stairway was equipped with handrails but
the area on the edge of the drop-off was not protected at all. (Tr. 93-94; Ex. G-1). He testified
that miners regularly walked along this edge between the parked vehicles and the edge. This area
was a regularly-used walkway between the maintenance shop and the mine offices. (Tr. 84).

33 FMSHRC Page 347

The violation was S&S because it was reasonably likely that someone would fall off the edge anc
sustain a reasonably serious injury.
Lehigh contends that, because the cited area was not a crossover, elevated walkway,
elevated ramp, or a stairway, the safety standard did not apply. The cited area was simply flat
ground located along one side of the parking lot. The application of section 56.11002 to this area
unreasonably extends the meaning of the terms in the standard beyond their ordinary meaning.
The walkway was not elevated as that term is reasonably used. The safety standard states that the
elevated walkway must be of "substantial construction." Because the cited area is flat ground,
how can it be of substantial construction? The cited area was not a structure. It was an area that
was used for the parking lot.
I find that the safety standard does not apply to the cited area and that the citation should
be vacated. As stated above, the safety standard provides that crossovers, elevated walkways,
elevated ramps, and stairways shall be of substantial construction and provided With handrails ··
and maintained in good condition. The cited area was not a crossover, stairway, or an elevated
ramp. The stairway that led down to the shop from the parking lot was of substantial
construction. This stairway met all the requirements of the safety standard. People often walked
along the edge of the parking lot to get between the maintenance shop and the mine office via
these stairs. This area was at the top of a hill so there was a drop-off along the shortest path
between these two points. I find it was not an elevated walkway, as that term is used in the safety
standard. It is interesting to note that the title for the safety standard is "Handrails and
Toeboards" and that the standard requires that toeboards be provided when necessary; This
language makes clear that the standard was designed to apply to structural walkways that are
elevated above the ground level. Although the parking lot was created by Lehigh at some time in
the past, it was not an elevated walkway as that term can reasonably be understood in the
standard. "Elevated" can be defined as "raised esp. above the ground or other surface."
Webster's New Collegiate Dictionary (1979) at 365. The cited area was the ground. This
citation is vacated.

D. Citation No. 6440390
Qn. June 26, 2008, MSHA Inspector Reynolds issued Citation No. 6440390 under section

104(a) of the Mine Act alleging a violation of 30 CF.R. § 56.3200, as follows:
The highwall located in the quarry at Jevel #-2 had loose rock and
unconsolidated material at the top of the face. This level had been
worked earlier in the shift·and was left unattended without warning
signs and barriers being posted warning of the hazard. '
(Ex. G-4 ). The inspector determined that an injury was reasonably likely and that if an injury
were to occur it would be fatal. He determined that the violation was S&S and that the
company's negligence was moderate. Section 56.3200 provides, in part, that "[g]round

33 FMSHRC Page 348

conditions that create a hazard to persons shall be taken down or supported before other work or
travel is permitted in the affected area." The Secretary proposes a penalty of $4,689 for this
citation.
Inspector Reynolds testified that the highwall at the level #2 bench had loose,
unconsolidated material that posed a risk to miners working below the highwall. (Tr. 98).
Bigley acknowledged that the area was being scaled down on the morning of the inspection but
that the area had been left unattended; (Tr. 216) .. The violation was S&S because the failure to
install a barrier against entry to the area under the highwall could contribute to a serious injury.
A loader was parked in the area, but it was 10 to 20 feet back from the highwall. (Tr. 145). The
area was barricaded to terminate the citation.
Lehigh argues that there was no showing that Inspector Reynolds has any particular
expertise in highwall safety. He did not testify as to the structural components of the highwall,
fault :fracture patterns, or the propensity for face slumping. (Lehigh Br. 8). Lehigh offered
evidence that two competent miners with over 50 years of experience between them had
performed a workplace examination of the area and determined that no hazard existed. The
objective evidence does not support the citation. In the event that it is found that the conditions
created a hazard, Lehigh was in the process of tiling down any rock that posed a hazard.
Finally, there was no showing that unauthorized personnel would enter the area.
I find that the Secretary established a violation. Inspector Reynolds testified that there
were several large rocks on top of the highwall that posed a danger of falling. (Tr. 98) .. The
safety standard provides that "[g]round conditions that create a hazard to persons shall be taken
down or supported before other work or travel is permitted in the affected area." (Emphasis
added)." The second part of the safety standard provides that "[u]ntil the corrective work is
completed, the area shall be posted with a warning against entry and, when left unattended, a
barrier shall be installed to impede unauthorized entry." I credit. the testimony of Inspector .
Reynolds as to the condition of the highwall. He worked in mines between 1991 and 1998. He
started working for MSHA in 2000. (Tr. 11 ). He estimated that he has inspected quarries 150 to
200 times.
The position of Lehigh is somewhat contradictory. One the one hand, Bigley testified
that two of its employees inspected the quarry highwalls and determined that no hazard existed.
(Tr. 188-89). These employees had 30 years and 20 years experience working in the quarry and
Lehigh contends that I should credit their experience and judgment over that of the inspector who
had less quarry experience. Thus, it argues that the cited area had been examined and that the
highwall was safe. On the other hand, in its brief, Lehigh states that the "conditions were in the
process of being taken down, per the standard, at the time of the inspection." (Lehigh Br. 8). It
further states that the "[o]ngoing work in the area was being done for the exact purpose of tiling
down the face wall and reducing the hazard, which is specifically allowable in the standard." Id.
I hold that, if the work of miling the highwall safe for miners had not been completed, then
posting or barricading was .necessary until that work was finished.

33 FMSHRC Page 349

I find that the violation was not S&S, however. The affected area was not large and I find
that the evidence establishes that it was not reasonably likely that anyone would enter the
hazardous area until the work of scaling highwall was completed. Lehigh's negligence was
moderate. A penalty of $2,000 is appropriate.

E. Citation No. 6440392
On June 26, 2008, MSHA Inspector Reynolds issued Citation No. 6440392 under section
104(a) of the Mine Act alleging a violation of30 C.F.R. § 56.3200, as follows:
The old roadway below the working level#-2 located in the quarry
was not posted or barriers put in place to prevent entry. This
roadway was littered with large boulders and materials from the
upper level and the roadway was completely buried at the far end:
There were tire tracks on this roadway indicating that the roadway
had been recently traveled.
(Ex. G-5). The inspector determined that an injury was reasonably likely and that if an injury
were to occur it would be fatal. He determined that the violation was S&S and thatthe
company's negligence was moderate. The Secretary proposes a penalty of $4,689 for this
citation.
Inspector Reynolds testified that the roadway below the second level had a lot of rock in
it. (Tr. 101 ). The photos taken by the inspector show loose, unconsolidated rock above the
roadway and rocks on the roadway itself (Ex. G-5). He further testified that there were fresh
tracks on the roadway suggesting that mobile equipment had been ori the roadway. (Tr. 102).
The inspector determined that the violation was S&S because an equipment operator may have
been pushing rocks over the edge of the bench above the roadway, exposing anyone on the
roadway to the hazard. (Tr.· 104). There were no warning signs in the affected area.
Lehigh argues that the cited roadway was in an abandoned portion of the mine property
and that there was no work-related reason for miners to ever enter the area. The road does not go
anywhere and there were plants growing in the road, which demonstrates the lack of use. (Tr.
194-95; Ex. R-23). There were rocks along the side of the road that acted as a berm and would
tend to block rocks from falling onto the road. (Tr. 193-94; Ex. G-24). The quarry is in a
rainless desert with the result that tire tracks can last a long time.
Lehigh also argues that the Secretary's only evidence is the inspector's opinion that a
hazard existed. It points to two decisions of the Commission's judges to support its contention
that the Secretary "must do more than offer an opinion of a non-expert inspector." (Lehigh Br.
9). In Shine Quarry, Inc., 17 FMSHRC 1397 (Aug. 1995) (ALJ), former Commission Judge
Amchan vacated a citation alleging a violation of section 56.3200 for loose rock along a
highwall. There were muck piles under the highwall that the operator alleged kept persons away

33 FMSHRC Page 350

from the highwall. The judge held that, "(i]n view of what appears to be an honest difference of
opinion as to the safety of Respondent's quarry, the Secretary must do more than present the
opinion of a non-expert inspector to meet its burden of proof under a general standard such as
section 56.3200." Shine Quarry at 1401. In Edward Kraemer & Sons, Inc., 11 FMSHRC 1058
(June 1989) (ALJ), another Commission judge determined that the only evidence of record with
regard to the existence of a violation consisted of the inspector's testimony that he "observed
loose unconsolidated material" on the highwalL Kraemer at 1059. The judge determined that,
because this testimony did not provide any further detail as to the nature of the violation, it was
''woefully inadequate to establish Petitioner's burden of proving the existence" of the violation.
Id.
Although I do not disagree with the analysis of the judges in those cases, I find that they
do not apply here. There was no question that the roadway was open to traffic. It was not posted
with a warning against entry and a barrier was not installed to impede unauthorized entry. The
notes of Inspector Reynolds state that "large boulders and material littered this roadway." (Ex.
G-5). This fact would tend to limit the ability of equipment to navigate the road. I credit the
testimony of Mr. Bigley that the roadway is not normally used. Nevertheless, the roadway was
not blocked off with the result that equipment could travel down the road. The area above the
road contained boulders that could easily fall onto the roadway. I credit the inspector's testimony
in this regard, which is supported by the photographs that he took. (Ex. G-5). Inspector
Reynolds testified that rock is sometimes pushed over the side from the top above the road. (Tr.
103-04).
I find that the violation was not S&S because it was notreasonably likely that anyone
would be injured by the cited conditions. The roadway was normally not used. It was a dead end
that, according to the inspector, went about 400 to 500 feet before it became impassable. (Tr.
103). For the same reasons, the violation was not serious. Finally, I find that Lehigh's
negligence was low. The violation was not obvious because the company assumed, with good
reason, that because the road was no longer regularly used it did not have to be maintained in the
same condition as a regularly-traveled roadway. Lehigh maintained that it would have taken
down any unsupported rock if it decided that it needed to use the roadway again. A penalty of
$2,000 is appropriate.

F. Citation No. 6440394
On June 30, 2008, MSHA Inspector Reynolds issued Citation No. 6440394 under section
104(a) of the Mine Act alleging a violation of30 C.F.R. § 56.14112(a)(l), as follows:
The guard located on the self-cleaning tail pulley of the B2-l 00
road rock stacker was not being maintained. The guard was
damaged on the right side at the corner where it connects to the
conveyor structure, exposing an area [that was] 4-inches high and
10-inches long ....

33 FMSHRC Page 351

(Ex. G-6). The inspector determined that an injury was unlikely but that if an injury were to
occur it would be permanently disabling. He determined that the violation was not S&S and that
the company's negligence was moderate. Section 56.14112(a)(l) provides that "[g]uards shall be
constructed and maintained to - withstand the vibration, shock, and wear to which they will be
subjected during normal operations." The Secretary proposes a penalty of $540 for this citation.
The Secretary argues that there is no dispute that the guard was damaged and that the tail
pulley was exposed. (Tr.106; Ex. G-6). The exposed area.was large enough for someone's hand
to fit through. The belt was not running at the time he issued the citation. (Tr. 107). The
opening was about knee high. (Tr. 109). He was concerned that someone's hand or clothing
could get caught in the self-cleaning tail pulley. The inspector determined that it was unlikely
that anyone would be injured by the violation.
Brian Bigley testified that an hourly employee damaged the guard earlier in the shift with
a Bobcat. (Tr. 195). The inspector's notes state that both management and an hourly employee
told him that the guard had been damaged earlier in that shift. (Tr. 153).
This citation is vacated. The Secretary did not establish that the guard was not
constructed or maintained to withstand the vibration, shock, and wear to which it was subjected
during normal operations. The belt was not operating and an employee hit it with the tongue of
his Bobcat during cleaning operations. This was not a normal occurrence. Any guard will
become bent if someone hits it with mobile equipment.

G. Citation No. 6440395
On July 1, 2008, MSHA Inspector Reynolds issued Citation No. 6440395 under section
104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56:4102, as follows:
The hydraulic pump rake drive located on the reclaimer deck had a
spillage of hydraulic fluid on top of the pump tank and an
accumulation of fluid on the walkway.
(Ex. G- 7). The inspector determined that an injury was unlikely hut that if an injury were to
occur it would result in lost workdays or restricted duty. He determined that the violation was
not S&S and that the company's negligence was low. Section 56.4102 provides that
"[f]lammable or combustible liquid spillage or leakage shall be removed in a timely manner or
controlled to prevent a fire hazard." The Secretary proposes a penaltyof$162 for this citation.
The Secretary argues that there is no dispute that hydraulic fluid had leaked from a pump
onto the deck near the reclaimer. (Tr. 110). The inspector was unable to determine if the fluid
was present because of leakage or whether the fluid had been spilled. This hydraulic fluid would
contribute to a fire hazard. If there were a fire in the area, the hydraulic fluid could help spread
the fire. (Tr. 112). He determined that the violation was not S&S and that the gravity was low.
33 FMSHRC Page 352

He also determined that the company's negligence was low because the oil looked fresh. The
inspector believes that hydraulic fluid is highly flammable. (Tr: 113). He did not know the
flashpoint for hydraulic fluid. Lehigh.argues that the hydraulic fluid was not tested for
combustibility and the Secretary only offered the inspector's opinion that the material was
combustible.
I find that the citation should be vacated. The Secretary defines "combustible liquids" as
"liquids having a flash point at or above 100° F." The Secretary defines "flammable liquids" as a
liquid that has a flash point below 100° F." Thus, almost any liquid is covered by the standard
except water. The safety standard requires that flammable and combustible liquid spillage or
leakage be "removed in a timely manner." In Lopke Quarries, 23 FMSHRC 705, 715 (July
2001), the Commission stated that "[w]hether [an] operator fail[s] to correct [a] defect in a timely
manner depends entirely on When the defect occurred and when the operator knew or should have
known of its existence." InLopke, the Commission affirmed the administrative law judge's
finding that no- evidence existed to determine whether a defect had been corrected in a timely
manner. Id. Inspector Reynolds testified that he "couldn't determine when [the spillage] had
occurred." (Tr. 113). He went on to say that "[h]ad that oil been there for a long period of time,
it would have soaked into the [fine powder on the floor] pretty fast." For this reason, he did not
believe that a "supervisor would have known [about the spill] unless there was a problem there."
If the hydraulic fluid spilI had not existed very long and, as a result, it was unlikely that
management would· have known about it, then it cannot be said that management failed to
remove it in a timely manner. For these reasons, I vacate the citation.

H. Citation No. 6440396
On July 1, 2008, MSHA fuspector Reynolds issued Citation No. 6440396 under section
104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.11012, as follows:
The feed chute located on the reclaimer inside the clinker dome
was not adequately guarded to prevent persons from falling into the
chute. The chute is at ground level and the opening measured 30feet across. There were three chains attached to either side of the
opening and the lower chain was broken.
(Ex. G-8). The inspector determined that an injury was reasonably likely and that if an injury
were to occur it would be fatal. He determined that the violation was S&S and that the
company's negligence was moderate. Section 56.11012 provides, in part, that "[o]penings
above, below, or near travelways through which persons or materials may fall shall be protected
by railings, barriers, or covers." The Secretary proposes a penalty of $5,961 for this citation.
fuspector Reynolds issued this citation because he determined that the feed chute on the
reclaimer operating inside the clinker dome was missing part of its chain guard to help prevent a
person from falling into the feed chute. (Tr. 114-15). The chute had been modified to allow for

33 FMSHRC Page 353

manual feeding of the.chute in the event the reclaimer broke down. He believed that.the ground
around the opening was unstable and someone could easily slip and fall. (Tr. 116). An employee
could be in the area to lubricate the pivot area or to check to see how full the chute is. (Tr. 117).
He considered the area to be a travelway because it was "one way that they can travel to get to
the one side from the other to the reclaimer." (Tr. 157-58). He said that he did not know of any
other way to walk around the reclaimer. (Tr. 162-3). He did not believe that the existing chains
placed across the area would prevent anyone from falling through the opening. (Tr. 159; Ex. G-8
photos). Inspector Reynolds was concerned that the loader operator would get out of his
equipment and look into the opening to see howmuch material was there. (Tr. 161).

Mr. Bigley testified that the only reason to be near the feed chute is to check on the "auto
lubers" that are installed on the stacker pivot. (Tr. 196). The "auto lub.ers" are devices that
automatically lubricate equipment. He testified that the employees who service the auto lubers
do not have to walk by the opening. (Id.; Ex. R-50 & 51). :aigley s.aid that the area around the
cited opening is not a travelway. He also testified that, during a previous inspection, another
MSHA inspector told him that a guard was not required in that 19cation because it was not a
travelway. (Tr. 198). A different MSHA inspector recommended that chains be installed across
the opening and Lehigh complied with his request. Id. The loader operator who dumps material
down the opening is never close enough to the opening to create a hazard. He does not get out of
the loader and walk around in the area. ld. The loader operator doe.s not have to look down into ·
the opening to see how much material is there. There are automatic sensing devices that provide
a warning if material is hung up or if too much· material is present. (Tr. 199). No employee ever
hand-shovels material into the opening.
Most of the materia1 that is processed at the clinker dome is automatically fed through the
system using the reclaimer. Only a small portion of the total material processed is fed into the
chute with the use of the loader. (Tr. 200-02). There is clearly an opening in the cited area. (Ex.
G-8 photos). The opening was not protected by railings, barriers, or covers. Id. The only
question is whether the opening was near a travelway. The Secretary defines the term
"travelway" as a ''passage, walk, or way regularly used and designated for persons to go from one
place to another." This is a rather narrow definition. The walk, way, or area must be regularly
used and designated for persons to go from one place to another. I find that, based on the
evidence presented, the cited area does not qualify as a travelway. The evidence establishes that
miners do not regularly walk the area. I credit the testimony of Mr. Bigley on this issue. My
finding is consistent with decisions of other administrative lawjudges. See Blue Circle, Inc., 1O
FMSHRC 990, 1010-13 (Aug. 1988) (ALJ); APAC-Mississippi, Inc., 26 FMSHRC 811, 812
(Oct. 2004) (ALJ). Consequently, this citation is vacated. It must be stated, however, that the
opening at issue in this case would present a rather serious hazard to an employee who walked ·
near the opening. If miners do begin walking around or near the cited opening either to get from
one place to another or for any other purpose, then the requirements of this safety standard would
apply and a railing, barrier, or cover would be required.

33 FMSHRC Page 354

I. Citation No. 6440397
On July 1, 2008, MSHA Inspector Reynolds issued Citation No. 6440397 under section
104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.14100(b), as follows:
The brake lights located on the Komatsu WA-600 front end loader
working inside the clinker dome were not being maintained. The
brake lights failed to function when tested.
(Ex. G-9). The inspector determined that an injury was unlikely but that if an injury were to
occur it would result in lost workdays or restricted duty. He determined that the violation was
not S&S and that the company's negligence was moderate. Section 56.141 OO(b)provides that
"[d]efects on any equipment, machinery, and tools that affect safety shall be corrected in a timely
manner to prevent creation of a hazard to persons." The Secretary proposes a penalty of $362 for
this citation.
The Secretary contends that the front-end loader operated both inside the clinker dome
and outside the dome near other vehicle traffic. (Tr. 121). The brake lights are standard
equipment on the loader and are necessary to alert other vehicles that the loader is stopping. The
defect was not corrected in a timely manner. The loader operator told the inspector that he knew
that the brake lights were not working that day, yet he chose to operate the equipment rather than
have the defect repaired.
Lehigh first argues that the Secretary failed to provide any evidence that the cited
standard requires that brake lights be in working order. Lehigh maintains that the Secretary did
not prod-lice sufficient evidence to sustain this Citation in part because the inspector did not take
any photographs of the condition. Lehigh aiso argues that the brake lights were stuck in the "on"
position so that the loader's brake lights were continuously operating. (Tr. 203). As a
consequence, if another vehicle came up behind the loader, the operator would naturally be very
careful because he would believe that the operator of the loader was slowing down. As a
consequence, a safety defect was not present. Finally, there is no showing that this condition was
not corrected in a timely manner. The loader operator was operating in an area without other
vehicles so he chose to wait until the end of the shift to have the condition corrected. Other
vehicles would have been parked by that time and the condition would not have presented a
hazard.
It is well established that an agency's interpretation of its own regulations should he given
"deference ... unless it is plainly wrong," as long as it is "logically consistent with the language
of the regulation and ... serves a permissible regulatory function." General Electn·c Co. v. EPA,
53 F.3d 1324, 1327 (D.C. Cir 1995) (citations omitted); Buffalo Crushed Stone, Inc., 19
FMSHRC 231, 234(February1997). In addition, the legislative history of the Mine Act states
that "the Secretary's interpretations of the law and regulations shall be given weight by both the
Commission and the courts." S. Rep. No. 181, 95th Cong., 1st Sess. 49 (1977). The Secretary

33 FMSHRC Page 355

has consistently interpreted the safety standard to require brake lights on mobile equipment and
the Commission's judges have affirmed this interpretation.
An inspector is not required to take photographs to establish a violation. There is no
dispute that the brake lights were not functioning properly. I find that failure of brake lights to
work properly is a defect that affects safety, even if the lights become stuck in an on position. If
someone in another vehicle is following aJoader with brake lights, he will likely rely on the
lights to warn him to stop. The driver of a vehicle following a loader with brake lights that are
always on may become complacent and not notice that the loader is stopping because the brake
lights are always on, Thus, inoperable brake lights are a defect that affects safety.
The chief issue is whether this defect was "corrected in a timely manner to prevent
creation of a hazard to persons." fuspector Reynolds testified that the loader operator told him
that he knew that the brake lights were not working that day. (Tr. 122). I credit this testimony. I
find that the Secretary established a violation.
I find that the violation was not serious. The loader was operating in the clinker dome
where other vehicles do not normally operate. Lehigh's negligence was moderate. A penalty of
$362 is appropriate.

J. Citation No. 6440408
On July 10, 2008, MSHA fuspector Reynolds issued Citation No. 6440408 under section
104(a) of the Mine Act alleging a violation of30 C.F.R. § 56.14107(a), as follows:

The guard located on the G-2-239 cooling fan #5 was not adequate
to prevent persons from contacting the moving machine parts. The
back side of the guard when it fits around the motor drive shaft had
an opening measuring 3 X 5 inches, and the pulley drive end had
an.opening around the shaft measuring 4 X 6 inches. These
conditions created an entanglement hazard fo the miner accessing
this cooling fan.
(Ex. G-10). The inspector determined that an injury was reasonably likely and that if an injury
were to occur it would be of a permanently disabling nature. He determined that the violation
was S&S and that the company's negligence was moderate. Section 56.14107(a) provides that
"[mJoving machine parts shall be guarded to protect persons from contacting gears, sprockets,
chains, drive, head, tail and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar
moving parties that can cause injury." The Secretary proposes a penalty of $2,976 for this
citation.
fuspector Reynolds testified that he issued this citation because a portion of the guard was
missing around the motor drive shaft of the cooling fan. (Tr. 124). The missing guard exposed

33 FMSHRC Page 356

the keyed shaft that the pulley is attached to. An exposed keyed shaft can grab someone's loose
clothing and pull that person into the moving machine parts. The unguarded area was large
enough for a person to stick his hand in and there was a place where lubrication was applied in
the vicinity. (Tr. 125-26, 172).

Mr. Bigley testified that Lehigh uses a heat gun to make silre that the bearings on the
cooling fan are not overheating. (Tr. 205). An employee can take this temperature from a
distance of ten feet. Lubrication is provided by an "auto luber" so there is no need for any
employee to get close to the cited opening in the guard. Id. When the auto luber is replaced or
when any maintenance is performed in the area, the unit is shut down and locked out. He further
testified that a person would "have to be a contortionist" to get his hand into the opening cited by
fuspector Reynolds. (Tr. 206). Bigley admitted that he has disciplined employees for working
on equipment without locking it out first. (Tr. 229).
Lehigh argues that there was no work-related reason for any employee to be near the cited
opening. The existing guard provided sufficient protection for miners who might be in the area.
The mere fact that it was physically possible for someone to force his hand through the opening
is not sufficient to establish a violation. If a violation is found it should be designated as nonS&S because it was unlikely that anyone would be injured by the condition. Finally, Lehigh
argues that since the condition has existed for 25 years, its negligence was low. Many MSHA
inspectors have inspected the area and a citation has never been issued for the cited condition. ·
I find that the Secretary established a violation. I find that the openings were sufficiently
large for a miner to accidentally get his hand in and contact moving machine parts. As stated·
above, the Commission interprets the guarding standard to take into consideration "orctinary
human carelessness.'' Thompson Bros. Coal, 6 FMSHRC at 2097. Lehigh has disciplined
miners for failing to abide by its requirement that equipment be shut down and locked out before
work is done ..
I find that the chance of a miner inadvertently coming in contact with the motor drive
shaft or other moving parts, while not impossible, was extremely unlikely. l credit the testimony
of Mr. Bigley that there was no reason for Lehigh's employees to get near the cited area. I find
that the violation was not S&S because it was unlikely that the violation would contribute to an
injury. I find that Lehigh's negligence was low because this condition has existed for a long time
and it was reasonable for the company to believe that it was complying with the safety standard.
A penalty of $1,000 is appropriate.

K. Citation No. 6440417
On July 16, 2008, MSHA Inspector Reynolds issued Citation No. 6440417 under section
104(a) of the Mine Act alleging a violation of30 C.F.R. § 56.4102, as follows:

33 FMSHRC Page 357

The lube and pump building located between the coal mill and the
raw mill has an oil leak that had spilled onto the travelway on the
north side of the building. This spillage was approximately 36 X
42 inch area. This condition creates a fire hazard to the miners
accessing this building.
(Ex. G-11 ). The inspector determined that an injury was unlikely but that if an injury did occur it
would result in lost workdays or restricted duty. He determined that the violation was not S&S
and that the company's negligenc~e was moderate. The Secretary proposes a penalty of $285 for
this citation.
Inspector Reynolds issued this citation because he found spilled hydraulic fluid in the
lube and pump building. (Tr. 128). Reynolds stated that the spilled material was the same as he
cited in Citation No. 6440395, discussed above. He further testified that the condition of the spill
area demonstrated that this was a recurring spill or leak rather than a one time event. (Tr. 130).
He believed that the hydraulic oil had "wicked into" the wall. (Ex G-11, photos). Lehigh makes
the same arguments as it did with respectto Citation No. 6440395.
As stated above, the safety standard provides that "[:t]lammable or combustible liquid
spillage or leakage shall be removed in a timely manner or controlled to prevent a .fire hazard."
MSHA defines virtuaJly any liquid, except water, as being either flammable or combustible. The
Secretary defines "combustible liquids" as "liquids having a flash point at or above 100° F." The
Secretary defines "flammable liquids" as a liquid that has a "flash below point 100° F." Thus,
hydraulic fluid is one of the two. The standard req'uires. timely cleanup. I credit the testimony of
Inspector Reynolds, as supported by the photographs, that hydraulic fluid has leaked at this
location more than once. It is difficult to determine how long this particular spill had been
present. It does not appear from the photographs that the most recent spill had·"wicked up'' into
the surface of the walls.
The issue with respect to this citation is whether the Secretary established that Lehigh
failed to clean up the leakage of the hydraulic fluid in a timely manner. As stated above, it
cannot be determined when the spill occurred or when it should have been spotted by Lehigh.
The fact that hydraulic fluid had seeped into the area in the past does not establish a violation. I
find that it cannot be determined that Lehigh failed to clean up the fluid in a timely manner. The
citation is vacated.

L. Citation No. 6440418
On July 16, 2008, MSHA Inspector Reynolds issued Citation No. 6440418 under section
104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.14100(b), as follows:
The windshield wipers located on the Chevrolet flat bed truck #409
were not being maintained. The wiper on the driver's side was

33 FMSHRC Page 358

m1ssmg. This condition creates a visibility hazard to the driver of
this mobile equipment.
{Ex. G-12). The inspector determined that an injury was unlikely but that if an injury did occur it
would 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$285 for
this citation.
The Secretary maintains that there is no dispute that the wiper blade was missing as set
forth in the citation. fuspector Reynolds testified that rust on the end where a wiper blade would
attach indicates that the wiper had been missing for a long time. (Tr. 132). The missing wiper
blade affected safety and was in violation of the standard.
Lehigh contends that the alleged defect did not affect safety. The Secretary failed to
produce any evidence of a requirement that off-road vehicles be equipped with windshield
wipers. The inspector testified that the windshield was clean and free of any obstructions to
visibility. (Tr. 175). At the time of the inspection, the weather was hot and dry. The truck was
not operating and there was no hazard presented by the cited condition. When the truck was
used, the driver would have alternate methods of cleaning the windshield.
I find that the Secretary established a violation of this standard. Quarries and cement
plants are inherently dusty and it takes only a little moisture to cause the dust to stick to the
windshield and obscure the operator's vision. (Tr. 131-32). Water trucks operate to control the
dust at this facility and these trucks spray water on everything in their path. I creditt.1.e testimony
of the inspector that this condition had existed for a lung time. As a consequence, although the
truck was not operating at the time of the inspection, I find that the evidence shows that it is
highly unlikely that a wiper blade would have been installed before the truck was put back into
service. A pre-operational exam would not have uncovered the defect because the qperator did
not consider the condition to present a hazard.
I find that the defect affected safety because the driver's field of vision could easily
become obscured by dust sticking to the windshield. Although the quarry is in a desert, a little
moisture would create a mess on the windshield. This condition could develop very quickly and
the truck driver could run into another vehicle or a stationary object before he had a chance to
stop the truck to clean the windshield off with a rag. Other Commission administrative law
judges have affirmed citations for this same condition.
I find that the violation was neither serious nor S&S. Lehigh's negligence was moderate
because it had operated the truck without wipers for some time. A penalty of $285.00 is
appropriate for this violation.

33 FMSHRC Page 359

III. APPROPRIATE CIVIL PENALTIES
Section 11 O(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. Lehigh had over 100 paid violations at the Tehachapi Plant during the
24 months preceding the dates of these inspections.· Lehigh is a medium:-sized operator, but it is
owned by a large operator (Heidelberg Cement AG). The Tehachapi Plant e111ployed about 126
people in 2008. The violations were abated in good faith. The penalties assessed in this decision
will not have an adverse effect on Lehigh's ability to continue in business. The gravity and
negligence findings are set forth above.

IV. OR])ER
Based on the criteria in section l lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
Citation/Order No.

30 C.F.R. §

Penalty

56.11002
56 ..3200
563200
56.14112(a)(l)
56.4102
56.11012
56.14100(b)
56.14107(a)
56.4102
56.14100(b)

Vacated
$2,000.00
2,000.00
Vacated
Vacated
Vacated
362.00
1,000.00
Vacated
285.00

.56.17001
. 56.20011

Vacated
5,000,00

WEST 2009"'."22-M
6440386
6440390

6440392
6440394
6440395
6440396
. 6440397
6440408
- 6440417
6440418
WEST 2009-101-M
6440388
6440389

TOTAL PENALTY

33 FMSHRC Page 360

$10,647.00

For the reasons set forth above, the Citations are AFFIRMED, MODIFIED, and
VACATED as set forth above. Lehigh Southwest Cement Company is ORDERED TO PAY
1
the Secretary of Labor the sum of $10,647 .00 within 40 days of the date of this decision. Upon
payment of the penalty, these proceedings are DISMISSED.

Richard W. Manning
Administrative Law Judge

Distribution:

Andrew Schultz, Esq., Office of the Solicitor, U.S. Department of Labor, 90 7th Street, Suite 3700, San Francisco, CA 94103-6704 (Certified Mail)
Brian Bigley, Safety Manager, Lehigh Southwest Cement Company, 13573 Tehachapi Blvd,
Tehachapi, CA 93561 (Certified Mail)
· Tom King, Safety Coordinator, Lehigh Southwest Cement Company, 15390 Wonderland Blvd.,
Redding, CA ?6003 (First Class 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.
33 FMSHRC Page 361

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, DC 20001-2021

February 3, 2011
CIVIL PENALTY PROCEEDING

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

Docket No. SE 2008-881
A.C. No. 01-01247-153621

v.
JIM WALTER RESOURCES, INC,
Respondent

No.4Mine

JIM WALTER RESOURCES, INC,
Contestant

CONTEST PROCEEDINGS
Docket No. SE 2008-173-R
Citation No. 7691861; 12115/2007.

v.
Docket No. SE 2008-268-R
Citation No. 7693051; 1122/2008
No. 4Mine

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

DECISION
Appearances: Thomas Grooms, Esq., Office ofthe Solicitor, U.S. Department ofLabor, Nashville,
Tennessee, on behalf of the Secretary of Labor;
David Smith, Esq. and John Holmes Esq., Maynard Cooper & Gale, PC,
Birmingham, Alabama, on behalf of Jim Walter Resources, Inc.
Before:

Judge Melick

This case is before me upon the petition for a civil penalty (consolidated with a related
Contest Proceeding) filed by the Secretary of Labor ("Secretary") pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 301 et seq. (the "Act") charging Jim
Walter Resources Inc. ("JWR") with three violations of mandatory standards and seeking civil
penalties for those violations. The general issue before me is whether JWR violated the cited
standards as charged, and if so, what is the appropriate civil penalty to be assessed in accordance
with section 11 O(i) of the Act. Additional specific issues are addressed as noted below.
33 FMSHRC Page 362

At hearings, the Secretary filed a motion to settle Citation Nos. 7691858 and 7691861 for
$687.00 and $308.00 respectively. I have considered the representations and documentation
proffered in connection with the motion and find that the proposed penalties are acceptable within
the framework of section 11 O(i) of the Act. Accordingly, an order directing payment of those
penalties will be incorporated herein.

Citation Number 7693051
This citation, issued January 22, 2008, alleges a "significant and substantial" violation of
the standard at 30 C.F.R. §77.1710(g) and charges as follows:

An accident occurred at the surface Clean Coal Loadout Building on
December 4, 2007. An employee of 0 & 0 Services, a contractor
working at the site, fell through an opening 21 inches by 48 inches,
and landed on a concrete platform 25 feet below, resulting in life
threatening injuries. The worker was not wearing a safety belt or other
means of fall protection
The cited standard provides as follows:

Each employee working in a surface coal mine or in a surface work area of
an underground mine and coal mine, will be required to wear protective
clothing and devices as indicated below:
... (g) safety belts and lines where there is a danger of falling; ....
The citation was subsequently terminated by the Department of Labor's Mine Safety and
Health Administration ("MSHA") on February 5, 2008 after JWR abated the alleged violation.
MSHA agreed to abate the alleged violation after "management submitted to MSHA a statement
indicating that a greater emphasis on the use of PPE will be related to contractors doing work on
JWR No.4 property and during the process of hazard training will review recent accidents of
contractor employees."
JWR's independent contractor 0 & 0 Services ("O & O") was also charged, in Citation
Number 7693049 on January 17th, 2008, with the same violation of the standard at 30 C.F.R.
§77.171 O(g) as JWR. That citation charges as follows:
An accident occurred when 0 & 0 Services employee, Tony Pierce fell
through an opening in the Clean Coal Loadout Building at the Jim Walter
Resources, fuc. No. 4 mine. The employee was working over an opening 21
inches by 48 inches and not wearing a safety belt or other means of fall

33 FMSHRC Page 363

protection. He fell through the opening onto a concrete platform 25 feet
below, resulting in life threatening injuries. The worker positioned over the
open hole for an .extensive period of time. A supervisor had knowledge that
the worker was in a hazardous location where fall protection was needed and
took no action. The supervisor was present at the time the accident occurred.
The foreman engaged in aggravated conduct constituting more than ordinary ·
negligence.(Exh. G-2). 1
For the reasons that follow, I find that 0 & 0 violated the cited standard as charged and tha
JWR, as the mine operator who contracted with 0 & 0, is liable without fault for that violation anc
is therefore subject to civil penalties under the Act. This decision by the Secretary to charge Im
for the violation of its contractor is unreviewable. Speed Mining Inc. v. FMSHRC et al., 528 F. 3c
310 (4th Cir. 2008). 2

It is undisputed that JWR contracted with 0 & 0 on September 17tlt, 2007 to provide the:
labor and supervision for a project to replace a structure described as a cone used to funnel and load
coal into trucks at the preparation plan loadout facility (Exh. JWR-32). In that contract, 0 & 0
agreed not only to provide supervision but also to comply with all safety regulations and to hold
JWR harmless for any violations. (Exh. JWR-32). 0 &O's work on the project began on Sunday,
December 2nd, 2007. On December 4th, 2007, work was delayed when the third segment (of eight)
of the cone would not set into place. It was obstructed by finlike protrusions (stiffeners) on the
metal plate upon which it rested (Exh. G-6).
According to 0 & 0 leadman Bobby O'Dell, he and 0 & 0 foreman Kris Gamble discussed
how to cover the hole at the bottom of the cone after the obstructing metal plate would be removed.
They discussed using a metal grate which would then provide a safe platform over the 21 inch by
48 inch hole so that work could continue on the cone. O'Dell testified that following the above
discussion \,Vi.th foreman Gamble, they proceeded up to the room where the cone was being replaced.
Gamble was standing at the doorway to the room and he (O'Dell) was standing behind him outside
the doorway. According to 0 'Dell they were standing there five minutes, at most, during which time
Gamble turned around and spoke to him twice as described in the following colloquy at hearings:
The Court: Were you talking with Mr. Gamble?

1

A motion. for approval of a settlement of this 0 & 0 citation has also been
approved on this date. See Docket No. SE 2008-1033
2

The Circuit Court in Sec'y v. Twentymile Coal Co., et al., 456 F. 3d 151 (D.C.
Cir. 2006) held that the Secretary's discretionary decisions in this regard are nevertheless
"subject to constitutional constraint" including those "imposed by the equal protection
components of the Due Process Clause of the Fifth Amendment." JWR has not however
established in this case that a constitutional infirmity exists herein. Accordingly, the Secretary's
decision to cite JWR is not reviewable by this Commission.
33 FMSHRC Page 364

A. (Mr. O'Dell) Only the two conversations or the two statements
that was made, Tony is trying to put it in place and then Tony had
fell. My back was to him and I was not looking inside the door.
The Court: Did Mr. Gamble turn around to talk to you?
A. Yes.
Q. (By Mr. Grooms) That's when he told you that Kris was prying
with a pry bar on the piece of wood; ·is that correct?
A Yes. He told me he was trying to put this piece in place. Right.
Then he turned back around and then that's when he said Mr. Pierce
had fallen? That's right."
(Tr. 368 -370)

Kris Gamble testified that he was foreman for 0 & 0 during relevant times and started
working on the cone replacement project on the day shift at 7:00 a.m. Monday, December 3rd, 2007.
At that time he saw his employees working with fall protection. He testified that he was familiar with
the MSHA regulations regarding fall protection and that JWR had always expected 0 & O's
employees to tie off when working on heights. Gamble returned on Tuesday, December 4 1\ 2007 at
aroUJ1:d 6:30 a.m. At that time he met with JWR engineers to "line things up." The subject hole was
then covered with a metal plate and was covered at all times when JWR employees were present.
He observed that 0 & 0 's employees were still using fall protection that morning and in particular,
he observed that the fall victim, Tony Pierce, was working on a ladder with fall protection. Gamble
further testified that he had talked to Pierce that day and reminded him that he needed to wear fall
protection unless he was working on the plate. Gamble further testified in a colloquy at hearings as
follows:
Q. (Mr. Grooms) What happened after you and Bobby (O'Dell]
discussed alternative means of covering the hole?
A. That's when me and him went up there to go look at it.

Q. What did you see when you got to the top of the stairs?
A. Well, I just saw people in there working. They were trying to
lower a piece into place and everybody was just sitting there working,
kind of sitting around the hole.
Q. How long were you there before Tony fell?

33 FMSHRC Page 365

A. Well, Bobby was coming behind me. I think he stopped to say
something to somebody for a minute. I mean~ it couldn't have been
long. It couldn't have been long, just a few minutes.
Q. In the brief time you were there, did you notice where TonyPierce
was?
A. He.was standing up on top there where we had the plate.
Q. Did you notice that he was not tied off?
A. No, ldidn't. I wasn't even paying attention to that. lwaslooking
at the piece and stuff they were bringing in and I just didn't notice.

Q. Did you notice that he wasn't wearing fall protection?
A. No, I didn't notice.

Q. Did you look at what he was actually standing on?
A. The only time I ever noticed the board was when he stuck a pry bar
in to pry the piece around and that's when the board shot out and he
went down.
Q. Do you know how long Tony had been standing on the board
before he fell?

A. I would have so Tsic] say it would be some time after break, I
guess.
Q. Did you know that he was standing on a board?
A.No.
Q. Before he fell?
A. No. I didn't see the _board until he went to pry.
Q. Why didn't you stop him, Mr. Gamble?
A. I didn't notice.
Q. Yes. Now just for orientation, again Exhibit 28, that's the load-out

33 FMSHRC Page 366

facility; correct?
A. Correct.

Q. From the outside. Now let me show you now Exhibit 20C. Have
you got that, Mr. Gamble?
A. I do ..

Q. Is that based on your recollection ofthat room where the cone was
being installed? Are we looking from the door at that point?
A. Yes.

Q. How far would you say the door was from the cone facility, :from
the platform I should say?
A. From the center of the platform, maybe ten feet. 3

Q. At the time that you entered the door and observed Mr. Pierce standing on the
board, that's where you saw him right there. He would have been inside the cone
essentially; right?
A. Yes, he was inside the cone.
Q. He is what, about six feet six tall?

A. Yes.
Q. And you saw him prying with the pry bar on the board; right?
A. Yes.

Q. You were there long enough to see him prying; correct?
A. Yes.
Q. And you had said you had never seen him on the board before?
A. No.

3

Contrary to this testimony, MSHA Inspector Womack estimated this distance as
three to four feet (Tr. 72).
33 FMSHRC Page 367

Q. And that didn't alarm you to see him standing there with the pry
bar prying on the board over the hole?
A. When I seen him hit the board with the bar, there was no time to
say anything. -

Q. But you knew the hole was there; correct?
A. I knew there was a hole below this plate, but I did not know it was
· exposed as far as it was.
Q. So how long did you observe Mr. Pierce standing on the board
without the fall protection?
A. I wasn't there long. I remember talking to some other people. I
would say I might have been up there three to four minutes at the
most maybe.
(Tr. 313-318)
Within this framework of evidence, I find thatO & 0 employee Tony Pierce was working
over the subject 21 inch by 48 inch hole standing only on a board lying across the hole (Exh. G-20
K and G-20 L) and not wearing a safety belt or other means of fall protection. When the board on
which he was standing gave way, he fell through the opening onto a concrete platform 25 feet below.
I further find that 0 & 0 foreman Kris Gamble was present and in a position estimated to have been
between only three to ten feet away to observe Pierce for as long as five minutes working over the
hole supported only by a 2 X 12 board and without fall protection. Under the circumstances, it is
clear that 0 & 0, through its agents, did not engage in specific and diligent enforcement ofthe safety
belt requirC!llent. Sec'y v. Southwestern Illinois Coal, 5 FMSHRC 1672 (Oct. 1983); Sec'y v.
Southwestern Illinois Coal, 7 FMSHRC 610 (May 1985). The violation by 0 & 0 has therefore
clearly been proven as charged. As previously noted, since the Secretary may charge the mine
operator for violations committed by its independent contractors, JWR is also liable for the violation
as charged in Citation Number 7693051.
The violation was also clearly "significant and substantial" and of high gravity. A violation
is properly designated as "significant and substantial" if, based on the particular facts surrounding
that violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness ofa 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:

In order to establish that a violation of a mandatory standard is significant and substantial
under National Gypsum the Secretary must prove: (1) the underlying violation of a
mandatory safety standard, (2) a discrete safety hazard - that is, a measure ofdanger to safety

33 FMSHRC Page 368

- contributed to by the violation, (3) a reasonable likelihood that the hazard contributed to
will result in 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 inwhich there is an injury, U.S. Steel
Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984), and also that the likelihood of injury be evaluated
in terms of continued normal mining operations. US. Stee!Mining Co., Inc., 6 FMSHRC 1573,
1574(July1984); see also Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986) and Southern Ohio Coal Co.,
13 FMSHRC 912, 916-917(June1991).
Clearly, working without fall protection on 2 X 12 wooden board over a 21 X 48 .inch hole
with a 25-foot drop onto a concrete platform below, is a discreet safety hazard. Moreover, there can
be no dispute that falling 25 feet onto a concrete platform would be reasonably likely to cause serious
or fatal injuries. The record shows that Pierce survived his fall but suffered serious injuries including
multiple broken bones.
Civil Penalties:

Under section l lO(i) of the Act, in assessing civil monetary penalties, the Commission and
its judges must consider the operator's history of previous violations, the appropriateness of the
penalty to the size.of the business of the operator charged, whether the operator was negligent, the
effect on the operator's ability to continue in business, the gravity of the violation and the
demonstrated good faith of the person charged in attempting to achieve rapid compliance after
notification of the violation. JWR is a large business with a significant history of violations
(considering only Exhibit A to the Secretary's Petition filed herein). There is no evidence that even
the proposed penalties would affect its ability to remain in business. There is no dispute that the
violation was abated promptly and in good faith. The gravity criterion has been previously discussed.
Negligence has been defined as conduct involving an unreasonably great risk of causing
damage or conduct that falls below the standard established by law for the protection of others
against unreasonable risk of harm. Prosser & Keeton, Law on Torts,§ 31 (5th Ed). The Secretary
alleges in her "Narrative Findings for a Special Assessment'', but without factual support, that JWR
was moderately negligent. Issuing MSHA inspector, Steven Womack, found that JWR was
moderately negligent for the reason that it did not do "everything they could" to see that its
contractor was following Federal regulations. JWR argues in its brief however, that the Secretary
has provided no notice as to what "everything they could" entails.4 JWR is arguing, in effect, that

4

The Secretary does not maintain that the standard of care required of JWR is the
same as the standard required for proving violations committed by 0 & 0 under the
33 FMSHRC Page 369

the Secretary has not provided notice as to the standard established by law that is required of JWR
The closest the Secretary has come to providing notice to JWR of the standard of care establishec
by law was in the abatement she required for a prior violation of the same standard by JWR abou1
one month before the incident herein and involving a fatal fall accident of an employee of a JWR
contractor. The Secretary required JWR to abate that violation by providing only "additional
training" and by installing an "adequate anchorage system" to secure personnel from falling (Exh,
G-9). 5

In this case, an anchorage system had indeed been provided by way ofloops welded onto the
cones (Exh.G-20 F). The record also shows that before work began JWR confirmed that the 0 & 0
employees had received all ofthe requisite training for the job. Indeed, the Secretary has not alleged
that the 0 & 0 employees were not provided adequate training. In addition, the record shows that
when JWR personnel were present they observed fall protection in use. Furthermore, there is no
evidence that any JWR personnel were aware that Pierce was working over the open hole or that
Pierce failed to wear fall protection. Finally, the record shows that 0 & 0 was an approved vendor
with whom JWR had years ofprior safe work experience, that it had never been cited for a violation
ofMSHA regulations, that it had a safety training program and that it had provided the necessary
safety harness and anchorages for Mr. Pierce.
The Secretary suggests in her brief that JWR had a legal duty to take over from 0 & 0 the
direct supervision of the cone replacement project because it" knew or could not help but know of
the creation of a hole in the platform." The Secretary is, in essence, suggesting that JWR must
maintain direct and continuous supervision over its contractor's employees because ofthe possibility
that an employee may at some point in time be working without necessary fall protection. The
Secretary fails to cite any legal authority and I find that there is no legal support for this suggestion.
It is also noteworthy that no such requirement was a condition of abatement for either the prior
citation or the current one.
Under the circumstances, I conclude that JWR in this case exercised the standard of care
required by law and that it complied with the Secretary's required standard of care as stated in her
prior abatement order to JWR. I further find that JWR exercised due diligence. and could not
reasonably have known of the violative condition created by an employee of 0 & 0. Accordingly,
I do not find that the Secretary has met her burden of proving negligence on the part of JWR.
Considering the factors set forth in section 1IO(i) of the Act, I find that a civil penalty of $500.00

Southwestern cases .
5

It is also noteworthy that the only action the Secretary required to abate the instant
citation was for JWR to submit to MSHA a "statement indicating that a greater emphasis on the
use of PPE will be related to contractors doing work for JWR No. 4 property and during the
process of hazard training will review recent accidents of contractor employees." Surely, if the
Secretary is going to demand amore specific standard of care and one that is ..established by
law/' she has a duty to provide specific notice ofthatto the operator:

33 FMSHRC Page 370

for the violation charged in Citation No. 7693051 is appropriate.

ORDER
Citations No. 7691858 and 7691861 are hereby affirmed. CitationNumber7693051 is also
affirmed as a "significant and substantial" violation and Jim Walter Resources Inc., is directed to pay
civil penalties of$687.00, $308.00 and $500.00, respectively, for the three violations charged therein
within 40 days of the date of this decision. Contest Proceedings Docket Nos. SE 2008-173-R and
SE 2008-268-R are hereby dismissed.

Gary elick
Administrative Law Judge
202-434-9977

Distributfon:(by first class mail)
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456
David Smith, Esq. and John B. Holmes, ill, Esq., Maynard Cooper & Gale, PC, 1901 Sixth Avenue
North, Birmingham, AL 35203-2618

Ito

33 FMSHRC Page 371

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: 202-434-9958 /FAX: 202-434-9949

February 4, 2011
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 2009-1558
A.C. No. 46-08921-183472 K232

v.
Mine: Surface Mine #7

BECKLEY CRANE &
CONSTRUCTION, INC.,
Respondent

DECISION
Appearances:

Noah AnStraus, Esq~, Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for Petitioner,
Eric Fry, Esq~, Flaherty Sensabaugh Bonasso, PLLC, Charleston,
West Virginia, for Respondent.

Before:

Judge McCarthy

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor ("Secretary"), acting through the Mine Safety and Health Administration ("MSHA"),
against Beckley Crane & Construction Company, Inc. ("Beckley Crane" or "R~spondent"),
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").
Respondent operates Surface Mine #7 in Boone County, West Virginia.· This case·
involves one section 104(a) citation. An evidentiary hearing was held in Beaver, West Virginia
on December 6, 2010. The parties introduced testimony and documentary evidence, although
there was no motion for sequestration of witnesses. For the reasons set forth below, I find that
the Secretary established a violation of the mandatory safety standard cited and that the violation
was significant and substantial.

I. FINDINGS OF FACT
On March 16, 2009, MSHA Inspector LarryB. Woodie issued Citation No. 8078572 to
Beckley Crane for an alleged violation of section 77 .210(c) of the Secretary's mandatory safety
33 FMSHRC Page 372

standards for surface coal mines. 1 The citation states that:
The ground man was observed working at the powder storage area beside a
suspended load. No tag line was being used to work clear of the load.
(G. Ex. 2). Inspector Woodie determined that an injury was reasonably likely to occur and could
reasonably be expected to be fatal. Further, he determined that the violation was significant and
substantial ("S&S"), that one person was affected, and that the violation resulted from moderate
negligence, The Secretary proposed a penalty of $392 for this citation.
A. Back&round and Summary of Testimony
1. The Witnesses
Lany Woodie has been a surface coal mine inspector with MSHA District 2 in Madison,
West Virginia since May 2007. (Tr. 25). From 1976 to 2007, Woodie worked primarily for
Eastern Associated Coal LLC (Eastern), a subsidiary of Peabody Energy, in various positions as
underground miner, surface electrician, preparation plant supervisor, lead plant foreman, and
manager, and coal preparation manager. (Tr. 26-27). Woodie has operated cranes on numerous
occasions for low lifting and unloading. (Tr. 27-28, 52). He received formal training in crane
safety from Eastern and from the MSHA Mine Academy. (Tr. 28-29). Although familiar with
the importance of using a tagline to stabilize a suspended load, Woodie conceded on cross
examination that loads move differently, that he is unfamiliar with the movement of suspended
prail bins as a crane operator, and that the prail bin at issue is the only one he has ever witnessed
being set. (Tr. 54-55). Moreover, this is the only citation he has ever written for failure to use a
tagline. (Tr. 55-56).

William Nichols has been a surface mine specialist with MSHA since 2009. (Tr. 87). He
has eleven years of mining experience, having worked as a truck driver, equipment operator,
foreman, and'supervisor for movement of heavy equipment. Although he has taken an MSHA,
multi-day, crane op_erator class, he has never operated a crane. (Tr. 88).
Douglas E. Arthur has been a certified crane operator for about 25 years. He has set
approximately 50 prail bins for Respondent over the last three years, has never had an accident
operating a crane, and has never injured anyone nor seen anyone killed or nearly injured while
installing a prail bin. (Tr. 96_;97, 102-104).
2. The Events of March 16, 2009

On March 16, 2009, Inspector Woodie traveled with MSHA surface mine specialist
William Nichols to Surface Mine #7 to conduct a required biannual inspection. (Tr. 31-32).
Woodie could not recall the weather that day, although the unrebutted testimony of Arthur was

'Section 77.210(c) requires that "[t]aglines shall be attached to hoisted materials that
require steadying or guidance." See also R. Ex. I.
33 FMSHRC Page 373

that it was a "pretty nice day'' with no wind. (Tr. 72, 104).
Woodie testified that while traveling as a passenger in Nichols' silver Chevy Blazer doWI
a sloping haul road to inspect the powder bin storage area about 200 to 300 feet away, he
observed a ground man holding the base of the leg of a hoisted powder bin at about chest height.
(Tr. 32-33). Similarly, Nichols testified that as he drove down the gravel haul road toward the
powder storage area, he had an unobstructed view of the ground man holding the bottom of a leg
of the suspended bin at chest height while it was being moved or hoisted by crane from one
location to the concrete pad for setting. (Tr. 89-90). The mutual observation lasted a short
period of time, and the inspectors arrived at the bin less than a minute later. (Tr. 72, 90). 2 By
then, the bin had been lowered real close to the ground. (Tr. 33). It is undisputed that no tagline
was used during transport of the hoisted bin bycrane for resetting in six to eight inch bolts on a
concrete pad or slab about 40 feet away, a process that took five or six minutes. (Tr. 23, 34-35,
99, 111, 122).3
The multi-ton, cone-shaped bin was constructed of sheet metal and was used for storing
ammonium nitrate. (Tr. 35, 54). It about 30 feet high from the base of the 12-15 foot H-beamed
legs to the top of the bin. (Tr. 35, 100). Arthur testified that there were four chains or straps
connected to the prail bin during the five or six minutes it took to transfer the bin to the set"'UP
location. These straps had 12 and one-half ton shackles attached to the ends and bolted on all
four comers. (Tr. 102) Each of the four straps was good for five times 12,900 pounds. The bin
weighed 13,000-14,000 thousand pounds. (Tr. 119). On cross, Arthur testified that the
possibility of a strap failing is zero because they are inspected before use, but he conceded that if
a strap failed, the load could shift. (Tr. 119-120).
Woodie testified that when he observed the alleged violation, he anticipated issuance of a
section 107(a) imminent danger order, but when he and Nichols arrived at the set-up location, the
bin had been lowered and the imminence of danger removed. (Tr. 50-51). Upon arrival,
· Woodie immediately spoke to the ground man (lead man Joe Critchley) and the crane operator
(Douglas Arthur) about the failure to use a tagline. (Tr. 37-38, 73-74) ·Woodie testified that a
tagline was,necessary to stabilize and prevent the suspended load from swinging or shifting, and
to keep the ground man clear of the load as it was being moved to the point where it could be ·
fastened down on bolts and stabilized. (Tr. 36-37). Woodie also testified, however, "in moving
the load," everyone was to "stay clear of the load until it's in the location to be set.". (Tr. 41-42 ).
With respect to the citation written, Woodie testified that by grabbing the base of a leg of

2

0n cross, Woodie was asked how long he watched the prail bin "being moved?" He
responded, a very short period of time, less than a minute.
3

Woodie's contemporaneous notes state that the ground man was observed working
without a tag line beside the powder storage tank, which was suspended about four feet above the
ground, and he was using his hands to steady the load. The notes further indicate in cryptic
fashion that the lead man "knew." They further indicate that the event lasted less than five
minutes, and that and it was "reasonably likely the ground man guided the suspended load with
his hands." G. Ex. 1. The notes do not indicate that Nichols was present.
33 FMSHRC Page 374

the suspended load at chest level without using a tagline, the ground man was exposed to a pinch
point hazard should the suspended bin fall, topple over, or shift during crane operation.4 (Tr. 4445). Woodie testified that such an event was reasonably likely to occur for a variety of reasons,
including improper set up or rigging of the crane, mechanical failure of connections to the load,
or operator error concerning movement or lowering of the load. (Tr. 39-43). Woodie further
testified that given the size, location and weight of the multi-ton load, and the ground man's
proximity to the pinch point he was holding, a fatal or crushing accident was likely to occur
should the suspended bin fall, topple over, or suddenly shift and strike the ground man. (Tr. 3946, 71; G. Ex. 2, box 10).
Woodie determined that the operator was moderately negligent because the ground man
was exposed to the hazard and both the crane operator and ground man should have been trained
to ensure that a tagline was used when "moving the bin." {Tr. 46, 50; G. Ex. 2, box 11). Woodie
determined that mitigating circumstances existed that ruled out high negligence because the
operator had never been cited previously for such a violation and Woodie had never spoken to
the ground man or the operator about safe operation of the crane. (Tr. 72).
Crane operator Arthur testified that normally once he lifted a load off the ground and
spun it around in the direction it needed to.go, no one would guide the load. {Tr. 97). 5 Arthur
testified that he would then swing the load over nice and easy" to the concrete pad where the
ground man would have to hold on to the prail bin to "guide" it down over the bolts because the
ground man could not control it with a rope [tagline] when standing away from it. (Tr. 97).
Respondent's counsel then queried, are you guiding or just making sure it is in the right place.
Arthur replied, just positioning to set it on the ground. Tr. 98. According to Arthur's
understanding, a tagline {rope) is used to guide and control the suspended load, such as in windy
conditions, or when working high off the ground, where the crane swings the load in and the rope

4

0n direct, Woodie testified that the ground man was exposed to a hazard by being

''under" the suspended load and it was reasonably likely that a serious injury could occur. {Tr.
39). The citation and Woodie's notes, by contrast, indicate that the ground man was observed
working "beside" the suspended load. On cross examination, Woodie conceded that ground man
was holding the legs of the bin beside the suspended load, but still exposed to the pinch-point
hazard. (Tr. 68-69).
5

Arthur testified that he would usually raise the load an average of two or three feet off
the ground depending on terrain, but since the bin was being moved 40 feet and uphill to the
concrete pad at an elevation five to seven feet higher for set-up alignment with the bolts, he
probably came up with the lift (cabled or boomed it up) to avoid hitting the ground. {Tr. 108-09,
111-112). Arthur admitted on direct, however, that after the lift, ground man (Critchley) spun the
load around in the direction it needed for placement on the pad and then walked along the side of
the bin to the pad and set the bin on the pad. (Tr. 99). Respondent's counsel then asked, so other
than positioning it, did you need him to guide it or set it, and Arthur said no. (Tr. 99).
6

0n cross, Arthur admitted that just a slight movement of the lever inside the crane would
have a big effect on where the prail bin was located. {Tr. 120).
33 FMSHRC Page 375

can be held for positioning and lowering the load. (Tr. 98, 99-100, 116} In Arthur's opinion; a
tagline was not necessary and served no purpose for what the operator was doing; namely, setting
up or installing the prail bin; (Tr. 99-100, 103). While admitting that a tagline would have kept
Critchley further away from the suspended bin, Arthur maintained thatCritchley could not
control the bin with a rope if he was standing away from it. Rather, he testified that Critchley
had to physically hold on to the bin to ease it down to the bolts. (Tr. 97-99).
Arthur further testified, somewhat inconsistently, about the process of setting up a prail
bin. He testified that he would hook onto the load, lift it up, and clear everyone out of the way
until the load swings steady (plumb-bob). 7 Then the ground man would walk over and •just spin
it around a bit to get it in the direction we're going in." (Tr. 101). Given the size of the bin, the
"little spin" was really a "good push." (Tr; 125). Then Arthur would swing the bin steady to the
pad where the ground persons grab a hold of the bin and ease it down on the pad to line it up for
bolting. (Tr. 101-102).8 During the transport, Critchley did not do anything with the bin.· (Tr.
126), he just walked over to the elevated pad about 40 feet away. (Tr.. 126-127).
On cross, and in response to my questioning, Arthur testified that at the concrete pad, the
bin was grabbed and spun around again by the ground man to line it up and position it in the
direction that it needed to be in prior to lowering it down for setting. (Tr. 112-13, 115, 126). At
the pad, the ground man would take one of the legs and move the bin to the proper location to set
it in line with the bolts. (Tr. 115). Also on cross, Arthur testified that the ground man had the
strength to spin the suspended load by grabbing hold of one of the legs and spinning it.
However, he also confirmed that the ground man [or ground persons for that matter] could spin
the suspended load with a tagline. He further conceded that the purpose of spinning was to line it
up (Tr. 114), but then maintai~ed on questioning from the undersigned at the end of the hearing,
that the tagline could not have been used to spin the bin to line it up to set it. (Tr. 127).

Judge: Could a tagline have been used to spin the bin?
A:

Not to line it up to set it.

Judge: Could it have been used initially to spin the bin when you first picked it up?
A:

I'm sure you probably could have used a tagline to spin when I initiaily picked it ·
up.

Judge: Why wouldn't a tagline have been effective or be used to position the bin after you
had moved it the 40 feet?

7

Arthur testified that no one was near the bin when he lifted it up, because that is when
the bin can move a little bit and slide one way or the other. But once the load was lifted and
stopped swaying, he considered it safe, without possibility of swinging and hitting or injuring
anyone. (Tr. 105-06). Arthur then testified that in his experience there was zero percent chance
of the load swaying and swinging when moved plumb-bob. (Tr. 103). He admitted, however,
that "it would take a pretty good gust of wind to move ... a load of that size (Tr. 104).
8

Arthur testified that normally there is more than one ground man, but Critchley was the
only ground man present during the alleged violation. (Tr. 101 ).
33 FMSHRC Page 376

A:

Well, you got a small area to sit something that big down on using a rope. I
mean, if you pull on that thingjust a foot, it~s going to take off spinning. And if
you've got to go back down there and pull on it again it's going to spin it. There's
no way. You got to physically get a hold of the bin to line it up and set it down
that you're going to line it up because it's going to be moving around too much.
If you pull on that rope ---.

Judge: So when you position the bin after you got up to the concrete pad, how far off the
ground was the bin at that point?
A:

As we set it on the slab --- I mean, when we set it on the slab it was down at the
time.

Judge: Well, when Mr. Critchley spun it at that location, how high was it?
A:

It was about probably two to maybe three feet.

Judge: Two to three feet?
A:

Yeah. I'd say the ground was on like --- it was like a slope.

Judge: Was the prail bin still hoisted at that time?
A:

When I first picked it up?

Judge: No, when you're at the end of the process and you're getting ready to place it into
the bolts.
A:

Yes, it's hoisted off the ground maybe 18 inches.

Judge: Did it require steadying or guidance at that point in time to place it into the bolt?
A:

It had to be steadied to set down in the holes. But a fagline, you couldn't use a
tagline to do that.

Judge: But I think you testified that you could have used a tagline to spin the bin when
, you first lifted it up?
A.

Right.

(Tr. 127-129).
On the other hand, Arthur testified that the ground man could not guide the load because it
was too heavy, and the crane was needed to move the load to the proper position. (Tr. 105) On
cross, Arthur denied that spinning was guiding the bin to the location. He explained that the
crane would have to be moving the load with the ground man traveling along with it for guiding to
take place. (Tr. 114)
·
When inspector Woodie approached, Arthur testified that he had left the crane to join
Critchley, who was bolting down the bin on the pad. (Tr. 106, 122).9 The suspended load was
three to five inches off the ground at this point. (Tr. 108). The bolts extended six to eight inches
above the concrete slab. (Tr. 108). According to Arthur, Woodie introduced himself and wanted

9

Arthur did not see Nichols. (Tr. 107).
33 FMSHR.C Page 377

to know why Respondent was not using a tagline, Arthur asked, why do we need a tagline. (Tr.
123). At that point, Woodie pulled out his book and explained that all suspended loads shall have
a tagline. (Tr. 107, 123). Arthur explained that "you almost have to have a hold of the bin to set
it." He asked Woodie ifthere was any difference ifthe load was several inches or several feet off
the ground. According to Arthur, Woodie rejoined, ''you got to use common sense." (Tr. 107108). Woodie then wrote the instant citation. (Tr. 124).
Arthur testified that the ground man had to physically hold the bin to set it over bolts on
the pad. As noted, Art;hur explained that one could not set the bin holding a tagline because
"[y]ou can't hold a rope and line something up like that." (Tr. 116). He conceded, however, that
if the bin was hoisted several feet above the ground, a tagline could be used to place the bin in the
general location necessary so that the load could be lowered about six to eight inches off the
ground, where final adjustments were made. (Tr. 117).
II. LEGAL FRAMEWORK AND CONCLUSIONS OF LAW
A. Si1mificant And Substantial Principles

The Secretary bears the burden of proving all elements of a citation by a preponderance of
the evidence. As a general proposition, a violation is properly designated as significant and
substantial (S&S) in nature if, based on the particular facts surrounding that violation; there exists
a reasonable likelihood that the hazard contributed to by the violation will result iri 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(Jan.1984), 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
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, 861 F.2d 99;, 103-04 (5th Cir. 1988),
aff'g 9 FMSHRC 2015,2021(Dec.1987) (approving Mathies criteria).

In US. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 {Aug. 1985), 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 {Aug. 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
33 FMSHRC Page ·378

Company Co., Inc., 6 FMSHRC 1866, 1868 (Aug. 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 Co., 17 FMSHRC
508 (April 1995); Jim Walter Resources, Inc., 18 FMSHRC 508 (April 1996). The Commission
has explicitly rejected a finding of an S&S violation based on the "potential" that an injury could
occur. Texas Gulf, Inc., 10 FMSHRC 498, 500-01(Apr.1988); Ziegler Coal Co., 15 FMSHRC
949, 953-54 (June 1993): However, the Secretary is not required to show that it is more probable
than not that an injury will result from a violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865
(June 1996).
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 FMSRHC 1541, 1550
(September 1996).
Resolution of whether a particular violation of a mandatory standard is S&S in nati.rre must
be made assuming continued normal mining operations. US. 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). Furthermore, the question of whether a particular violation is S&S must be
based on the particular facts surrounding the violation. Texas Gulf, Inc., 10 FMSHRC 498 (Apr.
1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). Furthermore, the
Commission and courts have held 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
175, 178-79 (Dec. 1998); see also Buck Creek Coal, Inc. v. MSHA, 52F.2d133, 135-36 (7th Cir.
1995).
'
B. Civil Penalty Principles

The Corrimission outlined the parameters of its responsibility for assessing civil penalties
in Douglas R. Rushford Trucking~ 22 FMSHRC 598 (May 2000). The Commission stated:
The principles governing the Commission's authority to assess civil penalties de
novo for violations of the Mine Act are well established. Section 11 O(i) of the Mine
Act delegates to the Commission "authority to assess all civil penalties provided in
[the] Act." 30 U.S.C. § 820(i).. The Act delegates the duty of proposing penalties to
the Secretary. 30 U.S.C. § § 815(a) and 820(a). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the
Commission to assess the penalty. 29 C.F.R. §§ 2700.28 and 2700.44. The Act
requires that, "[i]n assessing civil monetary penalties, the Commission [ALJ] shall
consider'' six statutory penalty criteria:
33 FMSHRC Page 379

[1] the operator's history of previous violations, [2] the appropriateness of such
penalty to the size of the business of the operator Ghai-ged, [3] whether the operator
was negligent, [4] the effect of the operator's ability to continue in business, [ 5] the
gravity of the violations, and [6] the demonstrated good faith of the person charged
in attempting to achieve rapid complian.ce after notification of a violation.
22 FMSHRC at 600, Citing 30 U.S.C. § 820(i).

In keeping with this· statutory requirement, the Commission has held that ~'findings of fact
on the statutory penalty criteria must be made" by its judges. Sellersburg Stone Co., 5 FMSHRC
287, 292 (Mar. 1983). Once :findings on the statutory criteria have been made, a judge's penalty ·
assessment for a particular violation is an exercise of discretion, which is bounded by proper
consideration for the statutory criteria and the deterrent purposes of the Act. Jd. at 294, Cantera
Green, 22 FMSHRC 616, 620 (May 2000). The Commission has noted that the de novo
assessment of civil penalties does not require "that equal weight must be assigned to each of the
penalty assessment criteria." Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).

C. Application of Le2al Principles to the Facts .
1. The Violation
The cited safety standard requires that "[t]aglines shall be attached to hoisted materials
that require steadying or guidance." 30 C.F.R. § 77.210(c); see also R. Ex. I. I have found no
reported Commission cases addressing.this standard.
Although the Secretary's MSHA regulations do not define ''tagline," Respondent relies on
·· OSHA safety and health regufations for construction cranes at 29 C.F.R. § 1926.140 I, which state
that "[t]agline means a rope (usually fiber) attached to a lifted load for purposes of controlling
load spinning and pendular motions or used to stabilize a bucket or magnet during material
handling operations."10
It is undisputed that no tagline was attached to spin the multi-ton bin that was hoisted by
crane operator for resetting in six to eight inch bolts on the concrete pad about 40 feet away. The
issue is whether the suspended multi-ton bin required ·~steadying or guidance." I credit the
mutually corroborative testimony of Inspectors Woodie and Nichols that ground man Critchley

10

The Commission has held that in the absence of a regulatory definition of a word, the
ordinary meaning of that word may be applied. See Bluestone Coal Corp., 19 FMSHRC 1025,
1029 (June 1997); Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996), affd, 111 F.3d 963
(D.C. Cir. 1997). The dictionary defines ''tagline" as "a cable runningfrom a crane boom ''to a
bucket for steadying the bucket." Webster's Third New International Dictionary 2328 (1993).
Given Respondent's reliance on the OSHA regulatory definition that specifically defines the term
"tagline" in the context of safety standards for construction cranes, I find that definition
appropriate here and generally consistent with the dictionary definition of tagline.
33 FMSHRC Page 380

held the base of the leg of the hoisted bin at about chest height. I find that this occurred after the
load reached the pad given that less than a minute transpired between the observation and the
inspector's arrival at the storage bin area. I also note, however, that Arthur admits that Critchley
spun the suspended bin immediately after it was lifted up by crane by grabbing a hold of a leg and
giving it a good push. In addition, Arthur admitted that Critchley grabbed the leg of the bin to
spin it for proper alignment with the bolts prior to lowering of the bin on the concrete pad below.
The dictionary defines "guidance" as "an act of guiding: the superintendence or assistance
rendered by a guide; DIRECTION, LEADING." Webster's Third New International Dictionary
2328 (1993). As explained above, the record establishes that the hoisted bin needed spinning,
and act of guidance, from the ground man for direction and alignment in the proper location under
the bolts on the concrete pad prior to lowering the suspended load. 11 Thus, although both are not
required, I find that the hoisted material required guidance and steadying by the ground man, both
after initial hoisting and prior to actual setting, and a tagline was necessary. Since no tagline was
used, I find the violation of section 77.210(c). 12

2. Si20ificant and Substantial (S&S) and Gravity
I find that the violation was S&S under the four Mathies criteria. See 6 FMSHRC at 3-4.
As noted above, there was a violation of the mandatory safety standard as alleged by the Secretary
for failure to attach a tagline to the hoisted multi-ton bin that required guidance. This was a·
serious violation, which contributed to a discrete safety hazard that the ground man would be
crushed or otherwise killed at the pinch point should the suspended, multi-ton bin fall~ topple
over, or .shift during crane operation. 13 The effect of the hazard, if it occurred, would have b~en
..
''Moreover, consistent with Arthur's te~timony, it appears obvious that after such
spinning, the large suspended load must be steadied to keep it from spinning too far and to line it
up for setting. {Tr. 128-29).
12

While I am somewhat sympathetic to Respondent's argument that as a practical matter
the prail bin could not be set without grabbing a hold of the bin (Tr. 116; R. Br. at 4-5), section
lOl(c) of the Act provides that Respondent may request modification of the existing standard and
MSHA may approve the requested modification if the alternate method proposed will guaratitee
no less than the same measure of protection afforded by the existing standard. Respondent
presented no evidence that it sought such a modification here. Moreover, Arthur's testimony
established that during the instant violation Respondent had departed from its "normal" practice
to use more than one ground man (Tr. 101 ), who may have been able to set the prail bin
effectively by each using a tagline.
13

Although Woodie did not explain what he meant by a pinch point, I note that a pinch
point can occur anywhere a part of the body can get caught between two objects. Thus, anywhere
equipment is transmitting energy, there is a pinch point. Given the force of certain mining
equipment and machinery, particularly the instant bin, a pinch point injury can be serious and
33 FMSHRC Page 381

grave, indeed fatal.
With respect to the third element of the Mathies criteria, Inspector Woodie testified that
such an event was reasonably likely to occur for a variety of reasons, including improper set up or
rigging of the crane, mechanical failure of connections to the load, or operator error concerning
movement or lowering of the load. I agree with the Secretary that during the continuance or
normal mining operations, it was reasonably likely that the ground man would suffer a fatal injury
through exposure to the pinch point by failure to use a tagline.
First, I note that Woodie qualifies as an experienced MSHA inspector specifically trained
in safety procedures concerning suspended loads. I accord substantial weight to his opinion that
the violation is S&S. Harlan Cumberland Coal Co., 20 FMSHRC at 178-79; Buck Creek Coal,
Inc. v. MSHA, 52 F.2d at 135-36.
Furthermore, the Commission interprets safety standards to take into consideration
ordinary human carelessness. Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984).
Consequently, the construction of mandatory safety standards, which involve miner behavior
cannot ignore the vagaries of human conduct. See, e.g., Great Western Electric, 5 FMSHRC 840,
842(May1983); Lone Star Industries, Inc., 3 FMSHRC 2526, 2531(November1981). This
analysis requires consideration all relevant exposure and injury variables.
Even a skilled crane operator such as Arthur, who has never had an accident, may suffer a
momentary lapse of attentiveness from fatigue or environrilental distractions, which results in
slight, improper movement of crane controls and a corresponding large and 'unexpected movement
of the multi-ton bin. Should such occur, there is a reasonable likelihood of injury to the ground
man caught in the pinch point holding the hoisted load without using a tagline. Similarly, duriug
the course of normal mining operations, the load is at ongoing risk of being rigged improperly, or
the operator could justplain forget to inspect the straps, resulting in rigging or connection error,
and injury should the load shift or topple over during the ·set-up process used by Respondent. In
the words of the recent Lexus commercial, "Accidents don't announce themselves." See also Pet.
Br. at 12 ("The history of mining is filled with casualties caused by operators thinking too highly
of their skills and thus taking shortcuts.... Equipment fails all the time for reasons both expected
and unexpected.... The lack of an accident in the past is no guarantee that the future will be
accident free."
In sum, the confluence of factors here, including the guiding and steadying of the hoisted
load, the exposure to the pinch point hazard, the enormous size and weight of the load, and the
ongoing vagaries of human behavior that could result in operator error or rigging failure, persuade
me that during the course of normal mining operations, there is a reasonable likelihood that
Respondent's continued practice of setting prail bins without use a tagline will result in a pinch

of

disabling, and can cause amputations, or even death.

33 FMSHRC Page 382

point injury to the ground man. 14
Finally, with regard to the fourth element of Mathies, I agree with Inspector Woodie that
given the size, location and weight of the multi-ton load, and the ground man's proximity to the
pinch point hazard while holding the hoisted load, a fatal or crushing accident was likely to occur
should the suspended bin fall, topple over, or suddenly shift· and strike the ground man during the
,
set up process.

The Secretary's regulations at 30 C.F.R. § 100.3 (d) provide the following with regard to
negligence under the Mine Act:
Negligence is conduct, either by commission or omission, which falls below a
standard of care established under the Mine Act to protect miners against the risks
of harm. Under the Mine Act, an operator is held to a high standard of care. A mine
operator is required to be on the alert for conditions and practices in the mine that
affect the safety or health of miners and to take steps necessary to correct or prevent
hazardous conditions or practices. The failure to exercise a high standard of care
constitutes negligence. The negligence criterion assigns penalty points based on the
degree to which the operator failed to exercise a high standard of care. When
applying this criterion, MSHA considers mitigating circumstances which may
· include, but are not limited to, actions taken by the operator to prevent or correct
hazardous conditions or practices. This criterion accounts for a max.imun1 of 50
penalty points, based on conduct evaluated according to Table X.
The Secretary's regulations categorize negligence as "moderate" when [t]he operator knew
or should have known of the violative condition or practice, but there are mitigating
circumstances:" 30 C.F.R. § 100.3, Table X.
Inspector Woodie testified that he determined the Respondent to be moderately negligent
because the ground man was exposed to the hazard and both the crane operator and ground man
should have been trained to ensure that a tagline was used when moving the bin. Woodie ruled
out high negligence and determined that mitigating circumstances existed because the Respondent
had never been cited previously for such a violation and crane operator Arthur was not looking at
ground man Critchley when Woodie observed the violation. I find that Woodie's negligence
:findings are consistent with the regulations and supported by the record. Accordingly, I affirm his
finding of moderate negligence.

14

As noted, Arthur testified that he set approximately 50 prail bins and a tagline was
unnecessary and could not be used to set the bin. (Tr. 97, 99, 116). Thus, I infer that but for the
instant citation, Respondent would have continued to set prail bins without the use of a tagline.
33 FMSHRC Page 383

4. Appropriate Civil Penalty
Section l lO(i).ofthe Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. The parties stipulated that Respondent demonstrated good faith in the
abatement of the citation; that the imposition of the proposed civil penalty of $392.00 will have m
effect on Respondent's ability to remain in business; that the appropriateness of the penalty to the
size of Respondent's business should be based on the fact that Respondent worked 15,344 hours it
2008; and that Respondent was not assessed any citations in the 15 months preceding the instant
citation. Given these criteria, my finding that the gravity of the violation was S&S, I conclude
that the Secretary's proposal is appropriate, and I assess a civil penalty of $392.00.

III. ORDER
For the reasons set forth above, Citation No. 8078572 is AFFIRMED, as written. Within
40 days of the date of this decision, Beckley Crane & Construction Company, Inc. is ORDERED
to pay a civil penalty of $392.00 for the violation found above. Upon payment of the penalty, this
proceeding is DISMISSED.

/Jrm

6d

f. '/11.. t~ .

Thomas·P. McCarthy
Administrative Law Judge

Distribution: (£..:Mail and Certified Mail) ·
Noah AnStraus, Esq., Office of the Solicitor, U.S. Department of Labor, 170 S. Independence
Mall West, Suite 630 East, Philadelphia, PA 19106
Eric Fry, Esq., Flaherty Sensabaugh Bonasso, PLLC, 200 Capitol St., Charleston, WV 25301

33 FMSHRC Page 384

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: 202-434-9987 i FAX: 202-434-9949

February 4, 2011
CIVIL PENALTY PROCEEDING

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

Docket No.VA 2007-32
A.C. No. 44-04856-112662

v.
CONSOLIDATION COAL COMPANY,
Respondent

Mine: Buchanan No. 1

DECISION
Appearances: Benjamin Chaykin, Esq., U.S. Department of Labor, Arlington, VA on behalf of
the Secretary;
R. Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, PA; on behalf of
Consolidation Coal Company.
Before: Judge Bulluck
This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary
of Labor ("Secretary") on behalf of her Mine Safety and Health Administration ("MSHA"),
against Consolidation Coal Company ("Consol''), pursuant to section 105 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815. The Secretary seeks civil penalties totaling
$1,934.00 for· two alleged violations of her mandatory safety standards.
A hearing was held in Kingsport, Tennessee. The parties' Post-hearing Briefs are of
record. 1 For the reasons set forth below, I VACATE the citations and DISMISS the Petition.

I. Stipulations
At hearing, the parties stipulated to the following:
1. The Administrative Law Judge and the Federal Mine Safety and Health Review
Commission have jurisdiction to hear and decide this civil penalty proceeding, pursuant to
section 105 of the Federal Mine Safety and Health Act.
2. Consolidation Coal Company is the owner and operator ofthe Buchanan No. 1 mine.

1

The stipulations are enumerated in the Secretary's Post-hearing Brief at pages 1-3.
33 FMSHRC Page 385

3. Operations at Buchanan No. I mine are subject to the jurisdiction of the Act.
4. The maximum penalty which could be assessed for these violations pursuant to 30
U.S.C. § 820{a) will not affect the ability of Consol to remain in business.
5. Mine Safety and Health Administration Inspector David Fowler was acting in his

official capacity and as an authorized representative of the Secretary of Labor when each of the
citations-involved in this proceeding was issued.
6. True copies of each of the citations· that are at issue in this proceeding, along with all
continuation forms and modifications, were served on Consol or its agent, as required by the Act.
7. Government Exhibit 1 is an authentic copy of Citation No. 6624105, with all
modifications and abatements, and may be admitted into evidence for the purpose of establishing
its issuance and not for the purpose of establishing the accuracy of the statements asserted
therein.
8. Government Exhibit 2 is an authentic copy of Citation No. 6624108, with all
modifications and abatements, and may be admitted into evidence for the purpose of establishing
its issuance and not for the purpose of establishing the accuracy of any statements asserted
therein.
9. The Secretary intends to offer other citations issued by the same inspector who issued
Citation Nos. 6624105 and 6624108, specifically Citation Nos. 6624107, 6624106, 6624110,
66241. 15 and 6624111. By stipulating to the authenticity of such exhibits, Consol is not
stipulating to the relevance of such exhibits or their admissibility.
10. Government Exhibit 3 is an authentic copy of Citation No. 6624107, with all
modifications and abatements.
11. Government Exhibit 4 is an authentic copy of Citation No. 6624106, with all
modifications and abatements.
12. Government Exhibit 5 is an authentic copy of Citation No. 6624110, with all
modifications and abatements.
13. Government Exhibit 6 is an authentic copy of Citation No. 6624115, with all
modifications and abatements.
14. Government Exhibit 7. is an authentic copy of Citation No. 662411 I, with all
modifications and abatements.

33 FMSHRC Page 386

15. Each of the violations involved in this matter was abated in good faith.
16. Government Exhibit 8, the Violator Data Sheet, may be admitted into evidence, and
accurately sets forth the size of Buchanan No. 1 mine in production tons and hours worked per
year.
17. Government Exhibit 9, MSHA's Assessed Violation History Report, R-17 Report,
accurately sets forth the-history of the violations at the Buchanan No. 1 mine for the period
specified, and may be admitted into evidence and used in determining civil penalty assessments
for the alleged violations in this case.
18. Consol maybe considered a large mine operator for purposes of30 U.S.C. § 82l(i),
and Buchanan No. 1 can be considered a large mine.
II. Factual Back2round
Consol owns and operates Buchanan No. 1, an underground coal mine in Buchanan
County, Virginia. Richard Perkins, a float foreman, was acting as the section foreman for the
"O" panel longwall development section of Buchanan No. l on the midnight ("owl") shift
beginning at 11:30 p.m. on November 1, 2006, and ending on the morning ofNovember 2.
Tr. 134. He provided an unrefuted account of the crew's activities during the first half of the
shift. The "O" panel had two roof bolting machines and a continuous miner operating on the
working section, and was accessed by four entries. Tr. 138, 140; Ex. G-10. Early in the shift,
Perkins completed an on-shift examination of the "O" panel section. Tr. 144; Ex. R-1. The left
side roof bolter, parked in the number 2 entry, was down for maintenance during the entire shift.
Tr. 138. · During Perkins' on-shift, he identified as a hazardous condition a wide place in the 2
left break, and corrected it by having a crib built and three timbers set. Tr. 144-46; Ex. R-1, R-2
at I. No othei: hazardous conditions were identified during Perkins' on-shift examination.
During the first four hours of the shift, the crew performed maintenance tasks of cleaning coal
accumulations from areas on the section, washing equipment, and completing permissibility and
dust parameter checks on the continuous miner. Tr. 134-35. They rock dusted in the number 3
belt entry. Tr. 164; Ex. R-1.
The crew began producing coal at 4:05 am. Tr. 135. First, they mined in the crosscut
between the number 2 and number 3 entries, and then they advanced in the face of the number 4
entry. Tr. 152-53. Perkins conducted a pre-shift examination of the "O" panel section from 4:30
to 5:15. Tr. 148. No hazardous conditions were identified or corrected as a result of his
examination. Tr. 147-49; Ex. R-1. At some point after completion of Perkins' pre-shift exam,
near the end of the shift, a roof fall occurred in the number 4 entry where the continuq_us miner
was being operated. A conveyor lead was severed, a methane monitor was dislodged, and a
methane sensor was damaged on the miner, resulting in a mining shutdown on the section.
Tr. 25-27, 157-58. There were at least 16 inches of fallen rock covering the miner's monitor and
sensors. Tr. 27. The crew's electrician temporarily spliced the damaged cable, in order to back
33 FMSHRC Page 387

the miner out of its location to a safer place where it could be repaired. Tr.· 157-59; see Tr. 103.
Supervisory MSHA Inspector David Fowler was assigned to conduct a regular inspection
of Buchanan No. 1 in the latter hours of the shift, the morning of November 2. ·He had been
conducting inspections of the mine since September 2000. Tr. 22-24. Fowler's employment at
MSHA spans over 25 years, and has included experience as an accident investigator. Tr. 24.
Subsequent to the subject November 2 irispection, he became the supervisor of the MSHA Field
Office in Princeton, West Virginia. Tr. 22-24. Fowler was accompanied by MSHA inspector
trainee, Garnee Deel, and Consol's then chief ventilation supervisor, Archie Ruble. Tr. 84-85,
201-02. The inspection team entered the mine at approximately 6:45, reached the "O" panel
section at about 7:50, and remained on the section for roughly one hour. Tr. 25, 85. When they
arrived on the section, the owl crew was in the process of rock dusting in the number 3 ·entry to
the face in number 4, and the continuous miner was being repaired in the number 4 entry. Tr. 8688, 185-86, 211-14.
As a result of his observations, in addition to the two citations at issue in this proceeding,
Fowler issued several citations for hazardous conditions on the section: (1) Citation No. 6624107
for loose and hanging ribs on four inby comers located in the number 2 entry (Ex. G-3);
(2) Citation No. 6624106 for inadequate ·air circulation (Ex. G-4); (3) Citation No. 6624110 for a
loose light and improper splice of the conveyor cable on the continuous miner (Ex. G-5);
(4) Citation No. 6624115 for a non-functioning methane monitor on the continuous miner
(Ex. G-6); and Citation No. 6624111 for loose coal and hydraulic oil accumulations in and on
areas of the continuous miner (Ex. G-7). 2

III. Findin&s of Fact and Conclusions of Law
A. Citation No. 6624105
Insp,ector David Fowler issued Citation No. 6624105, alleging a significant and
substantial ("S&S") violation of section 75.400, after observing two locations of allegedly
hazardous accumulations on the section. The first accumulation was spotted in the number 3
entry under the shuttle cars, along the ribs, and around the feeder, and the second in the crosscut
between the number 3 and 4 entries and further inby the number 4 entry.3 The Citation further
alleges that the condition was "reasonably likely'' to cause an injury that could reasonably be
expected to result in "lost workdays or restricted duty," and was caused by Consol's ..high
negligence." The "Condition or Practice" is described as follows:

2

The penalties in Citation Nos; 6624107, 6624106, 6624110, 6624115, and 6624111,
uncontested by Consol, were paid and became Final Orders of the Commission.
3

30 C.F.R. § 75.400 requires that"[ c]oal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials, shall be cleaned up and riot be
permitted to accumulate in active workings, or on non-diesel-powered and electric equipment
therein."
33 FMSHRC Page 388

Loose coal and fl.oat coal dust with hydraulic oil leaked from the feeder was
present beginning at the "O" panel tailpiece and extended inby approximately
150'. Loose coal was also present in the last open crosscut from No. 3 entry to
No. 4 entry extending into the No. 4 entry intersection where survey station No.
24537 was installed. The accumulations were from 2" to 16" in depth. The
accumulations were present in the first crosscut where the shuttle cars park to
change out during transportation of coal to the feeder during production. The
accumulations were present from rib to rib in some areas.
Ex. G-1.

1. Testimony
a. David Fowler
At hearing, using a diagram of the "O" panel section drawn by Perkins, Fowler identified
the locations of equipment and energized cable, including a continuous miner, feeder, power
center, roof bolting machine, and two shuttle cars. Ex. G-1 O; Tr. 26-32. He also identified the
first of the two broad areas that he had cited, i.e., the intersection near the feeder in the number 3
entry, and opined why the accumulation existed:
The accumulations -- in this area right here's where the shuttle cars travel through
during production, and they have a tendency to spill because they overload shuttle
cars. Over along the rib line right here is where the shuttle cars trade out. I mean,
they park and let the other one go and get loaded and then they'll go and empty
and then they'll switch out. This particular comer right here -- like this comer
over here -- is a problem area because it breaks off a lot. And instead of cleaning
as they were operating, the third shift had continuously just run through the dust.
Tr. 61; Ex. G-10 at A; H. He stated that in some places the loose coal, float coal dust, and
hydraulic· oil accumulations were entry width (22 feet), while in others they were crosscut wide
from rib to rib (20 feet), and inconsistently deep. Tr. 66; see Tr. 56-57. He estimated the depth
of the accumulation at the feeder to be 16 inches, running a distance of 150 feet, and rock dusted.
Tr. 66-67. According to Fowler, there was also an accumulation along the ribs in number 3 and
under the shuttle cars. Tr. 59-60. Explaining the circumstances under which he cited the
hydraulic oil leak, Fowler's testimony continued:
I saw the accumulations of hydraulic oil because, on previous days, I had
discussed the machine leaking. The feeder was leaking. And maintenance told
me they couldn't get _it fixed because they couldn't get the part. So when we came
back, I seen [sic] they still hadn't had the part, still hadn't repaired it. So, when I
wrote the spillage of the coal, I included the hydraulic oil in order to get the part
on the feeder fixed.

33 FMSHRC Page 389

Tr. 63. Additionally, he described the hydraulic oil accumulation as "right there along the area
that was from rib to the feeder and around toward the belt tailpiece." Tr. 59-60; Ex. G-10 at A.
He also testified that a skiff of rock dust covered the roadways and section. Tr. 67-68. In
response to being asked whether, from his observation, the hydraulic oil had been cleaned up,
Fowler testified, "I can"t answer." Tr. 63. He further discussed his observation of the
accumulated float coal dust in the area of the hydraulic oil leakage by explaining that, because
the tailpiece of the conveyor belt is situated under the feeder, that area tends to accumulate float
coal dust. Tr. 64. Also, he testified, float coal dust is, generated as equipment runs through the
loose coal and pulverizes it. Tr. 68-69. In his opinion, the violation was reasonably likely to
cause an injury resulting in "lost workdays or restricted duty" due to the presence of ignition
sources, including cables and the feeder -- hot equipment that had operated during the night shift.
Tr. 69-70.
The second area that Fowler identified in Citation No. 6624105, the last open crosscut
between the number 3 and 4 entries and further inby the nillnber 4 entry, he described in the
following testimony:
This area from the crosscut over to the number 4 entry is an area where you have
common spillage. And I have asked them and they have, in the past, cleaned this
up during the shift so it wouldn't accumulate and be too deep. And just the way
they load the shuttle cars and the way the design of the section is, it requires more
maintenance than normal just to keep it clean.
Tr. 64-65; Ex G-10 at F. He approximated the upper accumulation ofloose coal and float coal
dust in the crosscut between the number 3 and 4 entries and near the continuous miner as
crosscut width (20 feet), by 60 feet long. Tr. 68.
On cross-examination, Fowler testified that only Gamee Deel took inspection notes and
that he, Fowler, initialed them as his own. Tr. 84. However, he acknowledged that he did not
review Deel' s notes in preparation for his testimony. Tr. 84-85. Fowler a:Iso testified that he
took no measurements of the coal, accumulations that he observed on the section, but ''made
measurements of approximation" based on "the habit of using my boots and heel height and stuff
like that, you know;, to tell me what I have when it's loose." Tr. 65.
Fowler also testified to having been concerned that other hazardous conditions that he
observed on the section and cited, i.e., the loose light fixture, dislodged methane monitor and
spliced cable on the continuous miner, inadequate air circulation in the number 4 entry face, and
loose coal and hydraulic oil accumulations in and on electrical components of the continuous
miner, increased the risk of ignition near the miner. Tr. 33, 36-39, 72~ 73, 76. He explained that
he designated the violation S&S because,:''accidents and injuries related to the fire can be very
damaging in getting burned or possibly cause explosions and kill people." Tr. 72. When asked
how long the accumulations had been present on the continuous miner, Fowler opined that they
had existed for "at least, two or three days, four." Tr. 44-45. He testified that in the number 4

33 FMSHRC Page 390

entry face area, he discussed with Perkins a ventilation issue, the condition of the continuous
miner, and the float coal dust issue. Tr. 37, 121. Finally, Fowler stated that Consol has a history
of the type of violations that he cited on November 2, and that he had been involved in numerous
on-site safety talks with mine management about keeping the section free of accumulations.
Tr. 58, 64-65, 73.

b. Richard Perkins
Section foreman Richard Perkins testified that, at the beginning of the shift before coal
production had started, the crew had performed maintenance and cleaning of the section. A crib
had been built and some timbers set to correct a wide open crosscut between the number 1 and 2
entries on the left side of the section. Tr. 137, 145-46. Additional block had been laid on a
partially constructed brattice, also on the left side. Tr. 137. On the right side, the crew had
cleaned all the way to the face. Tr. 185. They had washed the feeder in the number 3 entry early
in the shift around 2:00, and the surrounding areahad been shoveled and scooped. Tr. 191-92.
Also in the number 3 entry, they had shoveled and scooped ribs, shoveled the ribs behind the
cables where the scoop could not reach, then rock dusted. Tr. 137, 141-42, 164; see Ex. R-1.
The continuous miner operator had cleaned the ladder, washed the miner, and performed his dust
parameters. Tr. 137, 140-41. Perkins explained that Consol's policy requires washing
equipment in the first two hours of a shift and, again, in the last two hours. Tr. 146. According
to Perkins, the feeder had not been running while the crew was not producing coal, except for the
limited purpose of dumping the rock that had come off the right-side continuous miner and any
coal that had been cleaned up from the haulageways. Tr. 154, 192.
·
Perkins testified that, during his pre-shift examination, he did not notice any
accumulation of hydraulic oil at the feeder or any coal accumulation along the rib line. Tr. 15455, 176-77. He acknowledged that he had not been made aware of the oil leak or that a part had
been ordered-for the feeder, attributing the oversight to "bad communication" due to the fact that
he is a float foreman. Tr. 153-54, 173-76. He testified that the shuttle cars were not parked in
the number 3 entry, he described the mine floor as ''real soft bottom," rutted by the back and
forth operation of heavy shuttle cars, and opined that the ruts can be mistaken for coal
accumulations. Tr. 155. He explained that the continuous miner was situated in the number 3
break (Ex. G-10 at D) and, thereafter, the roof was bolted where mining had taken place in the
number 3 entry. The continuous miner was then moved, and mining had commenced in the
number 4 entry after he had examined the area. Tr. 153. According to Perkins, the miner had
been washed again before cutting had begun in the number 4 entry. Tr. 181-83. Perkins denied
having observed any loose coal or float coal dust accumulatfons between the number 3 and 4
entries. Tr. 153. When asked to account for accumulations thatmay have been present behind
the continuous miner, Perkins opined that they would have been caused by the "[n]ormal routine
of mining. Could fall off shuttle cars. Off the ends, sides." Tr. 166-67~
Finally, contrary to Fowler's testimony, Perkins maintained that, while he had observed
Fowler twice before he, Perkins, had left the section, he had had no conversation whatsoever

33 FMSHRC Page 391

with the inspector. Tr. 160-62. He testified that being cited for an inadequate pre-shift exam, th(
first time in five years of mining, "really bothered" him and that, consequently, three days after
the inspection, on November 5, he had made the diagram and narrative of the section's activities,
in order to address his disagreement with Fowler and Deel. Tr. 133-34; see Ex. G-10, R-2.

c. Archie Ruble
General mine foreman Archie Ruble, a Consol employee at Buchanan No. 1 for
approximately 21 years, with 31 years of experience in the mining industry, was the chief
ventilation supervisor in November 2006, and had conducted many pre-shift examinations at
Buchanan No. 1. Tr. 205. He traveled with Fowler during his inspection on November 2.
Tr. 198-201. Ruble testified that, two days earlier on Octob~r 31, he had also accompanied
Fowler on an inspection of the "O" panel section, and that Fowler had not issued any citations.
Tr. 201. In Ruble's opinion, Fowler's placement of equipment and identification oflocations on
Perkins' diagram, except for the dinner hole, was inaccurate, i.e., advanced by one crosscut or
150 feet. Tr. 202-03, 252-53. Ruble testified that what he,observed at the feeder was a
combination of oil and water that measured about 8 to I 0 feet long. Tr. 217, 225-26, 234. He
gave a description of the cited area at the feeder:
The shuttle cars come through this area and dump. When they're dumping coal -that's what it's made for. It's made to dump coal into. You're going to have
spillage . . . . .You heard in previous testimony from the guys. They talk about
cleaning the feeder and cleaning the loading point. They'll come in -- say from
this point inby and push up -- push this up -- even though they may have cleaned.
All these roadways here may be good and may stay good for days on end, you're
still going to end up cleaning this dumping point during the course of your day.
Tr. 219. In.acknowledging that he observed coal accumulation at the feeder dumping point,
Ruble was emphatic that it amounted to normal spillage, and estimated the dimensions at l 0 feet
wide, by roughly 20 feet long, by 0 to 6 inches deep -- an· amount, he opined, equal to two -shuttle
cars worth of dumping; the problems arise, he concluded, "if you let it go for a shift or two .... "
Tr. 220-21, 236. He placed the inspection team at the feeder around 7:55, after the section had
been cleaned at the end of the shift, explaining that rock dusting forced the team to leave the
number 3 entry and travelover to the dinner hole in the number 2 entry. Tr. 221-22, 240-42.
Ruble was able to recall one of two shuttle cars parked in the intersection by the feeder, but was
unable to speak to whether there was coal accumulated underneath. Tr. 224. He also testified
that he did not recall observing a fallen rib at the right comer inby the feeder, and noted that no
citation was issued. Tr. 225. When questioned generally about coal accumulations on cables and
equipment, Ruble reported t:J;tat what he observed was incidental to normal mining, pointing out
that the crew had been cleaning for 4 Yi hours; "(t]hey hadn't beenrunning coal that long."
Tr. 225-26. Ruble also maintained that moisture in the number 3 entry and adequate rock dusting
had controlled the float coal dust in the area. Tr. 227. Ruble's testimony was consistent with
Fowler's testimony that the number 3 entry at the feeder was rutted:

33 FMSHRC Page 392

This area was relatively damp also. This bottom conditions in these areas -- and I
think that's some of the confusion with the accumulations -- it's very soft bottom
in this high top area. It does squish out, and it looks black. But it's slate and
shale. You know what I'm saying? And this type of bottom, typically; is very
damp.
Tr. 227-28; see 234-35, 261-62. He further testified that the rutted bottom, caused by shuttle
cars traveling with loads weighing 8 to 10 tons, can easily be mistaken for accumulated coal.
Tr. 228, 261-62. On cross-examination, Ruble narrowed down the high-traffic rutted area to the
intersection near the feeder where the shuttle cars change out. Tr. 235-36. He further testified
that, directly behind the feeder and extending inby for the remainder of the 150 foot run, the
accumulation had the appearance of"fresh run coal," and the span was damp, but not highly
rutted. Tr. 237-38.
When questioned about his observation of the loose coal accumulation in the second area
cited, the crosscut between the number 3 and 4 entries, Ruble noted that a ..run through" check
curtain was located there, which "drags" some coal off the shuttle cars coming from the face as
they pass under the hanging curtain. Tr. 214-15. He reiterated the company's cleaning policy of
mining coal, backing the miner out of the area, bolting top, then cleaning toward the face.
Tr. 215, 240-241. In his opinion, the accumulation that he observed was not hazardous and
amounted to "normal spillage you get by getting a cut of coal." Tr. 215. When asked to
approximate the dimensions of the accumulation, he responded that "pull-off, or drag-off of the
buggy'' will typically stay within the confines of the car, about 8 to 10 feet wide, and that what he
observed probably spanned a distance of 15 to 20 feet, and ranged from 0 to 6 inches in depth.
Tr. 214-16. Ruble emphasized that there is no way to avoid drag'."'offwhen loaded shuttle cars
pass under the check curtain, especially in "lower coal." Tr. 216-17.

, 2. Fact of Violation

In order to establish a violation of one of her safety standards, the Secretary must prove
that the violation occurred ''by a preponderance of the credible evidence." Keystone Coal Mining
Corp., 17 FMSHRC 1819, 1838 (Nov. 1998) (citing Garden Creek Pocahontas Co., 11
FMSHRC 2148, 2152 (Nov. 1989)).
While the Commission has held that a violation of secJ:ion 75.400 occurs when an
accumulation of combustible materials exists, it has recognized that "some spillage of
combustible materials may be inevitable in mining operations" and that "[w]hether a spillage
constitutes an accumulation under the standard is a question, at least in part, of size and amount."
Old Ben Coal Co., 1 FMSHRC 1954, 1958 (Dec. 1979) ("Old Ben I"). The Commission has also
rejected the rule that evidence of depth and extent is a necessary prerequisite to establishing a
violation of30 C.F.R. § 75.400, holding that, subject to challenge before an administrative law
judge, "an accumulation exists where the quantity of combustible materials is such that, in the
judgment of the authorized representative of the Secretary, it likely could cause or propagate a

33 FMSHRC Page 393

fire or explosion if an ignition source were present." Old Ben Coal Co., 2 FMSHRC 2806, 2807·
08 (Oct. 1980) ("Old Ben II"). In pointing out the obviousness of the prohibition against
permitting loose coal to accumulate, the Tenth Circuit has interpreted the mandate to require
reasonably prompt clean up, "with all convenient speed." Utah Power & Light Co. v. Sec '.Y of
Labor, 951 F .2d 292, 295, n. 11 (10th Cir. 1991 ). The judgment of an MSHA inspector as to
whether a violation existed is subject to review under "an objective test of whether a reasonably
prudent person, familiar with the mining industry and the protective purposes of the standard,
would have recognized the hazardous condition that the regulation seeks to prevent." Utah
Power &LightCo., 12 FMSHRC 965, 968(May1990), ajf'd, 951F.2d292(10th Cir. 1991)
(citation omitted).
fuspector Fowler's account of what he observed on the section is at odds with Ruble and
Perkins' observations, as well as Perkins' account of the crew's activities on the night owl shift.
As a threshold matter, Consol challenges Fowler's placement of equipment and locations of
alleged violations on the diagram of the section, asserting that the inspector was off by one
crosscut. Ruble corroborated Perkins' layout of the section, diagramed by Perkins within a few
days of the inspection. Moreover, Fowler had no recollection of having inspected the "O" panel
section on October 31, contrary to the evidence. Because Fowler had not reviewed Deel' s notes
prior to testifying and failed to recall the prior inspection just two days before~ and because there
is no other evidence of his version, I credit Consol's account ofthe section layout. See Tr. 85-86,
201, 229. ·Applying the same reasoning to the discrepancy in the testimonies of Fowler and·
Perkins, that they discussed the alleged violations before Perkins and the owl crew left the
section, lam not persuaded that any conversation took place based on Fowler's recollection alone
and, therefore, credit Consol's account. I note that these findings, rather than dispositive of
whether the accumulations were impermissible, go to the credibility of the inspector's overall
testimony, in light of the absence of notes to refresh his recollection or corroboration by other .
testimony. 4
Going back to Fowler's earlier October 31 inspection, during which Ruble also traveled
with him, it can reasonably be inferred that the a.Ccumulations cited on November 2 had not been
present because Fowler had not issued any citations. Perkins' testimony that the crew cleaned
the section and its equipment, including the feeder and continuous miner, during the first half of
midnight shift in the early hours of November 2 is credible and; indeed, essentially unchallenged
by the Secretary. Likewise, the Secretary has not refuted that, while the crew was cleaning and
performing maintenance on the equipment, the feeder had only been run long enough to dump
the coal and rock that had been cleaned off the section and machinery. When the inspection team
arrived on the ..O" panel section at about 7 :50, the crew had been mining for less than four hours,
4

Consol points to several instances in which Fowler acknowledged that his memory was
not clear (see Tr. 85"."86, 90-91, 97:-98, 109). Resp. Br. at 24. I agree, as Consol points out, that
given the absence of inspection notes and the Secretary's election not to call inspector trainee
Gamee Deel as a witness, Fowler's testimony should be viewed with a critical eye. Resp. Br. at
15.
33 FMSHRC Page 394

and the rock fall that caused the continuous miner to be shut down prematurely further
minimized the active mining on the owl shift. I find, based on credible testimony of the crew's
maintenance and cleaning activities, and Consol's policy of washing equipment in the first two
hours and, again, in the last two hours of a shift, that when the owl crew began cutting coal at
4:05, the section and equipment were clean of coal and oil accumulations. Therefore, I further
find that the accumulations at issue on the haulageways and equipment occurred between 4:05
and sometime prior to 7:50, rather than two, three, or four days earlier, as the Secretary suggests.
Fowler and Ruble both attested to having observed coal and oil accumulations in the cited
areas, but gave significantly conflicting accounts of the nature of the accumulations. The
Secretary holds the view that Fowler cited impermissible accumulations that had existed for
several days, whereas Consol challenges Fowler's assessment of the extensiveness and duration,
contending that the accumulations constituted permissible spillage incidental to the normal
mining cycle on the midnight shift. Recognizing that the Secretary bears the ultimate burden of
proof, and that the resolution of the issue in controversy involves a question of degree, the
Secretary's evidence falls short of establishing that the accumulations were in violation of section
75.400.
Fowler took no measurements of the coal accumulations in any of the areas that he cited
on the section, but made rough estimates. He was asked to describe in great detail, from sheer
memory alone, except for review of the citation, itself, events that took place a year .earlier.
When Perkins conducted his pre-shift examination of the section between 4:30 and 5:15,
the crew had only been actively mining since 4:05. Given my finding that mining commenced on
a clean section, Perkins' testimony, that he observed no coal or oil accumulations at the feeder or
coal accumulated along the ribs or adjacent intersection, is reasonable and wholly credible. I also
fully credit his testimony that the continuous miner had been washed a second time before being
operated in the number 4 entry, that active mining did not commence in that entry until after his
pre-shift exam had been completed, and that he observed no coal accumulations in the crosscut
between the number 3 and 4 entries.
Perkins and Ruble's testimony establish that the section was damp from washing
equipment during the owl shift, especially at the feeder where water tended to collect due to a
slight grade in the number 3 entry. The shuttle cars tracked the water back and forth throughout
the entry and, at least some of this very soft, rutted, black bottom could have been mistaken for
coal accumulations, most notably at the feeder and the adjacent intersection where the shuttle
cars change out. See Tr. 145, 155, 194-97, 227-28, 234-36. Even Fowler acknowledged that the
soft bottom on the section can become rutted, and did not deny that it was comprised of dirt or
rock, rather than coal. Tr. 92. He also acknowledged that shuttle cars traveling through the
section during production tend to be overloaded and spill. Tt. 61. He also stated that feeders and
miners "most always" have coal on them. Tr. 118. Furthermore, Fowler, himself, minimized the
nature of the hydraulic oil accumulation, by admitting that he had included it in the citation in
order to light a fire under Consol to get a previously ordered part that would fix the problem.

33 FMSHRC Page 395

Tr. 63. Again, given the limited amount of mining that occurred that night, the fact that the
Secretary has not refuted that a second cleaning and rock dusting occurred befor~ the end of the
shift, and because the area cited at the feeder -- soft, damp and rutted -- was the dumping point
and change-out area for the overloaded shuttle cars coming from the face, I conclude that the coa
accumulations in the number 3 entry amounted to permissible spillage incidental to the normal
mining. Therefore, the Secretary has not established that an impermissible accumulation of coal
and float coal dust was present on the section.
Likewise, Ruble's testimony respecting the crosscut between the number 3 and 4 entries
and the loading point in the vicinity of where the continuous miner had been operating in the
number 4 entry before the rock fall, and the drag-off caused by the loaded shuttle cars passing
under the check curtain, was compelling and unrebutted. Fowler, himself, even testified that
some of what he observed was spillage from loading the shuttle cars. Tr. 91. ·The owl crew had
been producing coal immediately prior to the inspector's arrival on the section until the rock fall
on the continuous miner. Tr. 111-12. The minerhad been removed from the hazardous area and
was in the process of being repaired. The evidence supports a conclusion that the coal was
incidental to the normal mining cycle on the shift that night. Accordingly, I conclude that the
Secretary has failed to prove by a preponderance of the evidence that an impermissible
accumulation of combustible materials existed on the section at the time of inspection and,
therefore, no violation of section 75.400 has been established.

B. Citation No. 6624108
fuspector Fowler issued Citation No. 6624108,. charging an S&S violation of section
75.360, after observing several allegedly hazardous conditions on the section which had notbeen
reported in the pre"."shift exam book for conection. 5 The citation further charges that the
condition was "reasonably likely'' to cause an injury that could reasonably be expected to result
in "lost workdays or restricted duty," and was caused by Consol's "high negligence." The
"Condition or Practice" is described as follows:

5

Notwithstanding fuspector Fowler's specification of section 75.360(f) as the subsection
violated, the Secretary alleges a violation of 30 C.F.R. § 75.360(a)(l), which requires, in
pertinent part, the following:
[A] certified person designated by the operator must make a preshift examination
within 3 hours preceding the beginning of any 8-hour interval during which any
person is scheduled to work or travel underground. No person other than certified
examiners may enter or remain in any undergroup.d area unless a preshift
examination has been completed for the established 8-hour interval. The operator
.must establish 8-hour intervals of time subject to the required preshift
examinations.
Sec'y Br. at 14; see Tr. 121.
33 FMSHRC Page 396

An adequate preshift examination was not conducted on the "O" Panel section for
the day shift on this date. The following conditions were observed on the working
section with no corrective action being taken: [t]he coal ribs present in the No. 2
entry were not being adequately controlled or supported to prevent persons from
hazards related to falls of rib in four different locations. The inby comers located
in areas where battery charging stations were installed and where a stopping was
being installed were loose and hanging. Persons were observed working in the
vicinity of the loose coal ribs and no corrective actionwas being taken. In one
area a temporary support that had been previously installed had been removed and
was lying next to the loose and hanging rib. Dates, times, and initials were
present in all areas to indicate a preshift examination of the areas had been
conducted.
Accumulations of combustible material such as loose coal and float coal dust and
hydraulic oil were present in areas cited on citation 6624105.
No record of the hazardous conditions was recorded in the preshift examination
record book.
Ex. G-2; see Ex. G-3.

1. Testimony
a. David Fowler
Fowler issued Citation No. 6624108 based on Perkins' failure to report in the pre-shift
examination record the coal, float coal dust, and hydraulic oil .accumulations Fowler cited in
Citation No. 6624105, and the adverse rib conditions for which he issued Citation No. 6624107.
See Tr. 77-79. He testified about his observations and conditions he considered to be hazardous
in the number 2 entry:
I observed loose ribs, a cracked rib. A lot of it had fallen off the areas that weren't
supported within the required plan, but I didn't cite the plan. I cited not
controlling the roof in these specific locations.
These locations are typical locations that I have discussed with mine management
several times. There were problem areas.
The design of the pillar created a point on the pillar -- due to the massive weight
and everything in the mine of -- these comers had a tendency to break and roll off.
And it's a common place to look for areas where the ribs could be rolling off, or
fractured, broken ribs.
Tr. 45-46. He further testified that four crosscuts were involved, that a miner was performing

33 FMSHRC Page 397

maintenance on the left roof bolter in one area where temporary supports had fallen out and were
laying on the mine floor, and that in the last crosscut, where the owl crew was in the process of
constructing a stopping, one of the comers had a broken rib and the roof was sagging~ Tr. 47-48.
In his opinion, the adverse rib conditions had existed over an. extended period of time because of
tools, toolboxes and other items sitting atop the fallen material, old rock dust, and footprints that
he attested to having observed in it. Tr. 47-49. According to Fowler, although the miner
performing maintenance was unable to explain what had happened to the temporary supports, he
told Fowler that they had been:there most of the shift. Tr. 50-51. Fowler also stated that he
thought that he may have asked Ruble why miners would be assigned to install the stopping
under bad rib conditions. Tr. 51 ""52. Finally, Fowler explained that failure to report these
conditions, with miners working in the area, amounted to an inadequate pre-shift examination,
that the mine had a history of these violations, and that Consol had given additional training to its
foremen in order to terminate several of them. Tr. 54-56. As to the coal and hydraulic oil
accumulations Fowler attested to having observed in the number 3 and 4 entries, Fowler opined
that they had been present at the time Perkins conducted his pre-shift exam, "[d]ue to the area
involved and the quantity that was laying on the mine floor." Tr. 79. He explained that he had
designated the violation S&S because roof, rib, and fire hazards could reasonably be expected to
cause severe injuries, i.e., "a broken bone, bruises, or whatever," even death. Tr. 80. ·Fowler also
testified that failure to at least alert the oncoming crew of the hazardous conditions was highly
negligent. Tr. 81.

b. Richard Perkins
Perkins conducted his pre-shift examination between 4:30 and 5:15 on the morning of
November 2. He testified that he started in the number 1 return entry, examined all four entries
and crosscuts, and that he checked for "ventilation, good ventilation; CH4, which is methane;
and CO; and oxygen. And also ... for hazards -- rough bolts that might be shot off, wide in
places; bad ribs; bras-a-hanging." Tr. 147-49. He stated that he did not observe any bad rib
conditions on the section, particularly at the crosscuts where the crew was building a partial
stopping, the dinner hole, or at the battery charger. Tr. 147, 149; Ex. R-2 at J, K, L. He further
testified that he did not observe any timbers that had been knocked out. Tr. 150, 168; Ex. R-2.
He explained that the owl maintenance crew was working on the left-side roof bolter, had
removed three covers and propped them up against a rib, and that each cover measured 5 feet
long, by 2 feet wide. Tr. 150-51. He acknowledged that he was unable to see the rib behind the
roof bolter covers. Tr. 180-81.
Perkins' description of his observations on the right side of the section, entries number 3
and 4, has been fully set forth respecting Citation No. 6624105. He asserted that he did not see
loose coal, float coal dust, or hydraulic oil accumulations at the feeder and the adjacent ribs and
intersection, or coal accumulations in the crosscut between entries number 3 and 4. Tr. 153-55,
184-85. He noted that no shuttle cars were parked in the number 3 entry while he was examining
the entry. Tr. 155. The continuous miner was parked in the number 3 break when he passed
through the number 3 entry, and mining had not yet begun in number 4. Tr. 153. He opined that

33 FMSHRC Page 398

rib conditions on the section "could change in one minute." Tr. 156; see Tr. 178-79, 194.

c. Archie Ruble
Ruble acknowledged that he observed the areas of bad ribs in the number 2 entry, as well
as a fallen timber cited by Fowler in the area where the roof bolter was being repaired, although
he could not say when the conditions had occurred. Tr. 203-05, 209. He stated that the covers
had been put back on the roof bolter and that the crew was beginning to clean the area. Tr. 205,
248-51; Ex. G-10 at J. Ruble stated that no one was at the partial stoppingwhen the inspection
team came through the entry. Tr. 206, 251-52; Ex. G-10 at L. According to him, another corner
cited, outby the block across from the battery charger, was wide from a permanent support and
not very noticeable. Tr. 206-08, 247; Ex. G-10 at J. When asked whether he saw any bad ribs in
the fourth location cited, a comer by the dinner hole, Ruble responded that he did not. Tr. 208; .
Ex. G-10 at B. He opined that normal air current in the entries can cause comer deterioration, as
well as water pressure, contact from equipment, and roof pressure. Tr. 209-10. Ruble also
explained that in high rib areas, such as where the partial stopping was located, rib conditions can
change drastically and very quickly from one examination to the next. Tr. 210-11. Overall, he
expressed his view that the rib conditions may not have existed during Perkins' pre-shift
examination, but if they were present, they were insignificant and not readily noticeable,
especially in areas where men were working. Tr. 210-11, 231.

2. Fact of Violation
As previously stated, the Secretary must prove by a preponderance of the evidence that
the operator violated one of her safety standards. Keystone, 17 FMSHRC at 1838.
A violation of section 75:360 occurs when hazardous conditions are not recorded in the
pre-shift .record book. Enlow Fork Mining Co., 19 FMSHRC 5, 14 (Jan. 1997) (stating that
section 75.360 "requires that a preshift examiner 'examine for hazardous conditions.'"); see also
generally Nat'! Mining Ass'n v. MSHA, 116 F.3d 520, 539-40 (D.C. Cir. 1997) (upholding the
validity of 30 C.F.R. 75.360 and discussing the regulation's emphasis on identifying current
hazardous conditions). However, there is no violation where the hazardous condition did not
exist at the time of the pre-shift examination. Jim Walter Res., Inc., 29 FMSHRC 212, 226 (Mar.
2007) (ALJ).
The purpose of the pre-shift examination is to "prevent loss of life and injury" resulting
from hazards at mines. S: Rep. No. 91-411, at 71 (1969), reprinted in Senate Subcomm. on
Labor, Comm. on Human Res., Part I Legislative History of the Federal Coal Mine Health and
Safety Act of 1969, at 183 (1975). The Commission has long recognized that "[t]he preshift
examination requirement 'is of fundamental importance in assuring a safe working environment
underground.'" Enlow Fork, 19 FMSHRC at 15 (quoting Buck Creek Coal Co., 17 FMSHRC 8,
15 (Jan. 1995)).

33 FMSHRC Page 399

I have credited Consol's account ofthe "O" Panel section layout, and made findings that
the section was clean of accumulations when active mining began at 4:05, and that any
accumulations found on the section occurred between 4:05 and sometime prior to the inspection
team's 7:50 arrival on the section.
The Secretary alleges that the hazardous rib conditions in the number 2 entry and coal and
oil accumulations on the right side of the section were present during Perkins' pre-shift
examination because of evidence that the conditions had existed prior to the midnight shift.
Fowler's account of what he observed, however, without corroboration, is particularly suspect,
because of inconsistencies in his ability to recall some important details of his inspection. His
accounts of how long the accumulations had existed at the feeder and on the continuous miner
were vague. Tr. 44-45. He could not remember the location of the water sprays on the feeder.
Tr. 108-09. He was unclear as to whether the miner was energized while it was being repaired.
Tr. 87-88. He was unable to recall where he took the air reading behind the line curtain in the
vicinity of the continuous miner. Tr. 90. He had a problem remembering the location where the
miner cable ran from the power center up the number 3 entry and into the crosscut between
entries 3 and 4. Tr. 97-98. Even more troubling is his inability to recall having inspected the
same section just two days prior, especially in light of his opinion that some of the alleged
hazards pre-dated that prior inspection. Tr. 85-86. As was discussed fully above, Fowler did not
have the benefit of actual measurements or his own inspection notes, and did not review Deel' s
inspection notes prior to testifying. Tr. 84-85. Also, as has been previously emphasized, Deel's
notes and/or his testimony would have been helpful in establishing the circumstances
surrounding the allegations.
The evidence establishes that the active working section had been cleaned extensively.
prior to active mining, which had only begun 25 minutes prior to when Perkins began his preshift exam at 4:30. Perkins testified credibly that he examined the areas cited, and did not
observe any bad ribs or fallen timber. This testimony is bolstered by Perkins' handling of a
hazard that he had encountered .during his earlier on~shift exam -- the wide place in the number 2
break -- for which he had a crib built and timbers set. It is reasonable to assume that he would
have acted similarly had he encountered the rib conditions that he has been charged with
overlooking. The Secretary has not rebutted that rib conditions can change suddenly and
drastically, especially in very deep mines such as Buchanan No. 1. The evidence in its entirety
only establishes that the rib conditions observed by Fowler and Ruble, some not readily apparent
in Consol's view, existed at the time of inspection -- some three hours after Perkins' had
completed his pre-shift examination -- but not that they were present when Perkins examined the
number 2 entry. I am unwilling to conclude, without more, based on Perkins'·failure to examine
behind the roof bolter covers, that the ribs had rolled at that time, or that Perkins' overall preshift examination was lacking. The Secretary's account of events has simply not been supported
by the evidence in its entirety.
The Secretary has also failed to prove that Perkins neglected to report coal, float coal
dust, or hydraulic oil accumulations on the right side of the section or on its equipment as a result

33 FMSHRC Page 400

of his pre-shift examination. Perkins gave credible testimony that he did not observe the alleged
accumulations while he was conducting his pre-shift exam, and I credit Ruble's testimony that
the accumulations observed during Fowler's inspection were fresh and appreciably less extensive
than alleged by the Secretary. This conclusion is consistent with my finding that mining began at
4:05 on a clean section, as well as credible evidence that mining in number 4 did not commence
until after Perkins had already examined the entry. Therefore, I find that coal and oil
accumulations were not present during Perkins' pre-shift examination, and it must be concluded
that no violation of section 75.360 occurred.
ORDER
Accordingly, it is ORDERED that Citation Nos. 6624105 and 6624108 are VACATED,
and this case is DISMISSED.

~IJIAilr""~·
12~
eline R. Bulluck
Administrative Law Judge

Distribution: (Certified Mail)
Benjamin Chaykin, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd,
22nd Floor West, Arlington, VA 22209-224 7
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty
Ave., Pittsbur~, PA 152222
Melissa M. Robinson, Esq., Jackson Kelly, PLLC, 1600 Laidley Tower, P9st Office Box 553,
Charleston, WV 25322

33 FMSHRC Page 401

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

February 9, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 2008-312
A.C. No. 15-17110-131880
Docket No. KENT 2008-697
A.C. No. 15-17110-140405

v.
Docket No. KENT 2008-875
A.C. No. 15-17110-136530.
ICG KNOTT COUNTY, LLC,
Respondent

Calvary Mine

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 2009-517
A.C. No. 15-17110-159591A

v.
RANDY PACK, employed by
ICG KNOTT COUNTY, LLC,
Respondent

Calvary Mine

DECISION
Appearances: Christian P. Barber, Esq., Office of the Solicitor, U.S. Department ofLabor,
Nashville, Tennessee, on behalf of the Secretary of Labor;
John N. Williams, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC,
Lexington, Kentucky, on behalf of Respondent, ICG Knott County, LLC.;
Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, Lexington, Kentucky,
for Respondent, Randy Pack.
Before:

Judge Zielinski

These cases are before me on Petitions for Assessment of Civil Penalties filed by the
Secretary of Labor pursuant to sections 105(d) and 110(c) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 815(d), 820(c). The petitions allege that ICG Knott County, LLC, is
liable for three violations of the Secretary's Mandatory Safety Standards for Underground Coal

33 FMSHRC Page 402

Mines, 1 and propose the imposition of civil penalti_es in the total amount of$63,867.00. The
Secretary also filed a petition against Randy Pack, an agent ofICG Knott County, LLC., charging
him with a violation of a mandatory standard. That petition seeks the imposition of a civil
penalty in the amount of $1,500.00 against Pack, in his individual capacity. A hearing was held
in Pikeville, Kentucky, and the parties filed briefs after receipt of the transcript. For the reasons
set forth below, I find that ICG Knott County committed the violations, and impose civil
penalties in the total amount of $36, 100.00. I also find that Pack committed the violation, as
alleged, and impose a civil penalty in the amount of$1,000.00 against him in his individual
capacity.
Findings of Fact - Conclusions of Law
At all times relevant to this proceeding, ICG operated the Calvary mine, an underground
coal mine located in Knott County, Pennsylvania. 2 The incident that prompted issuance of the
violations occurred on September 13, 2007, in the 009 working section, when ICG cut into an
adjacent bleeder area in order to establish a bleeder line for retreat mining. Water that had
pooled in the bleeder entries flowed into the active workings. Equipment was moved to higher .
ground, the power center was deenergized, and the miners eventually left the mine. The
following morning, ICG phoned the MSHA field office and reported the incident. MSHA' s field
office supervisor, Gregory Ison, and inspector, Roy Parker, traveled to the mine to conduct an
investigation. fu the course of the investigation, the contested citations and orders were issued.
Following a special investigation, the mine superintendent, Randy Pack, was also charged with
one of the violations. ICG and Pack timely contested the violations and assessed civil penalties.
The 009 section consisted of seven entries and was located at the inby end of a series of
panels that had been mined alongside a pillared-out area. The worked-out area was immediately
to the left of the active workings, which had been driven for a substantial distance. Once past the
worked-out area, the entries made a 90 degree turn to the left, and continued alongside the
worked-out area for a distance the equivalent of four to five breaks. The layout of the 009
section and part of the bleeder system are depicted on a portion of the mine map. Ex. G-3. The
mine floor/coal seam in the worked-out area generally sloped down, in two planes, toward the
comer around which the active entries had been driven. There was a slope from the pillared-out
area downward toward the 009 section, and a slope roughly parallel to that in the 009 section
entries, i.e., doW1lward from the faces outby. The two outermost entries of the worked-out area
adjacent to the 009 section were the travelable bleeder entries, and they extended into the comer.
Water had accumulated in the bleeder entries, and because of the slopes, was pooled against the
comer, primarily in the outermost entry.
The lay of the coal seam/mine floor in the 009 section was somewhat different than that

I

30 C.F.R. Part 75.

2

MSHA's data base shows the mine's status as ''Abandoned" as of November 11, 2010.
33 FMSHRC Page 403

in the worked-out area. As noted above, the slope of the entries was roughly parallel to that in
the bleeder entries. They sloped downward from the faces a8 they proceeded outby. However,
the floor in the crosscuts sloped upward from the #4 entry to the #7 entry, opposite to the slope ir
the worked-out area. There was a low point, or dip, approximately 10-12 breaks outby from the
009 section faces, where the #8 conveyor belt connected at a right angle with the #7 belt.
Mining in the 009 section had proceeded only a little over four breaks past the comer of
the worked-out area because the,entries began to "rock out," i.e., the coal seam ended. The last
open line of crosscuts was the third break past the comer. One additional crosscut, the fourth
break, had been completed only between the #I and #2 entries. ICG intended to prepare the 009
section for retreat mining. To create a bleeder for the retreat mining, it planned to cut through
from the #1 entry into the adjacent bleeder entries.
Pack conducted the required weekly examinations of the bleeder entries. 3 He traveled in
the second outermost entry. The path traveled in the bleeder is depicted by a black line on the
map. Tr. 91-92; Ex. G-3. Approximately five breaks from where that entry terminated at the
aforementioned comer in the, worked-out area there was a date board, on which he recorded the
dates of his examinations and initialed the entries. Prior to the cut-through there was standing
water in the traveled bleeder entry. Pack testified :that there was no more than 12-14 inches of
water in the bleeders and that it had not changed in the year that he had been conducting the
examinations. Tr. 222. He never got water in his transport vehicle, a three-wheeled "Johnson
stinger," the seat of which was about 16 inches off the ground. Tr. 241. The pooled water
extended from the corner up to the area of the date board. There was a dip down from the
traveled entry to the outermost bleeder entry and, as a result, the water was deeper in that entry.
After the start of the second shift on September 13, Pack talked to Verlin Robinson,
ICG's president and general manager, and a decision was made to make the cut-through from the
009 section.into the bleeder system. Pack testified that he intended that the cut-through be made
in the "last" crosscut, i.e., the most inby break between entries #1 and #2. 4 Tr. 226. At
approximately 7:00 p.m., he called down to David Gibson, the.section foreman, and instructed
him to make the cut-through. Gibson understood Pack to say that the cut-through was to be

3

Unsealed worked out areas must be examined at least every seven days. 30 C.F.R.
§ 75364(a).

4

Pack had read and signed a statement prepared in the course of the subsequent special
investigation, in which he stated that he instructed Gibson to make the cut-through in the "last
open crosscut." Tr. 236"."37; Ex. G-12. He also reaffirmed that statement at his deposition.
Tr. 238-39; Ex. G-13. At the hearing he testified that the statement was in error, and that he first
noticed the error in the course of the hearing. Tr. 239. I find that his original statement was
accurate. However, I do not find the fact of the miscommunication, or that the cut-though may
~ave been made in the wrong place, to be of particular significance in the analysis of the various
issues.
33 FMSHRC Page 404

made in the "last open" break, i.e., the last open line of crosscuts, which was the second break
from the face in the #1 entry. Tr. 50. The difference was significant because it appears that the
most inby crosscut was approximately one foot higher in elevation than the next crosscut outby;
The continuous miner made a cut, extending the line of open crosscuts 40-45 feet past the
#1 entry toward the bleeder entries. That cut was bolted, scooped, and dusted. Some water was
infiltrating through the coal into the area. Tr. 25, 66. The miner then started the second cut, and
had loaded one shuttle car. On the next pass, between 8:00 p.m. and 8:30 p.m., the miner broke
through into the outennost bleeder entry, and water that was pooled in that entry began flowing
into the section. While it had been anticipated that some water would be encountered, more
water came in than was expected. Tr. 60.
There were differing assessments of the magnitude of the influx of water. A shuttle car
operator, Carl Duty, who was retired at the time of the hearing, testified that miners were
concerned when water was infiltrating into the extended crosscut, prior to the actual cut-through,
because "it didn't look good." Tr. 25. He related that, by the time the first cut had been bolted,
the water was about one foot deep. Tr. 25. However, he did not explain how he came to that
assessment. It apparently was not by actually standing in the water, because during the entire
incident he did not get "the soles of[his] feet wet." Tr. 30-31, 38. He also did not think that the
continuous miner got much water in it. Tr. 31. Duty testified that after the cut-through it was
"scary'' for a minute; that he had never seen as much water in his 34-3 5 years of mining
experience, that it "kicked the miner around," and that the water "run us out of there." Tr. 27, 28)
32. However, he also confirmed that he and the other miners did not hurry out of the area.
Tr. 39-40. Rather they followed Gibson's instructions and moved the equipment outby, and then
boarded a mantrip and rode out of the section. Duty was on his way away from the water in "less
than five minutes'' after the cut-through was made. Tr. 38.
Gibson testified that the amount of water infiltrating into the crosscut was not unusual.
Tr. 66. He was in the immediate area when the cut-through was made, and.instructed the men to
move the equipment out of the way. He assisted the miner operator in backing the miner up the
crosscut line to the #5 entry, an area that remained dry. While handling the miner's cable, he was
standing in the extended crosscut. The water was approximately ankle deep. Tr. 62. As noted in
the discussion, infra, I find Gibson's description of the flow of water from the cut-through to be
accurate.
Gibson then went to the power center and deenergized it, because he did not know if the
water level would reach it. There was no water in the power center while the men were
underground. Tr. 62-63. The water flowed outby down the entries, primarily the belt entry,
toward the low spot where the #8 belt head drive was located. Gibson then rode outby with the
crew to the area of the #8 belt head drive, where he got off. It took less than ten minutes to move
the equipment and begin leaving the section. Tr. 69. The crew continued outby, parked, and

33 FMSHRC Page 405

waited for further instructions. 5 Gibson called outside and reported what happened: He then
returned to the section to monitor the inflow of water. Tr. 60-61. Twenty to thirty minutes had
elapsed following the cut-through by the time he returned to the section. Tr. 68-70.
When Gibson made his call, he told the outside man to call Pack and tell him that water
was coming into the mine. Tr. 63. When Pack received the call at about 9:00 p.m., he was
entering the parking lot of the mine, intent on helping the midnight shift move the 009 section to
a new location. 6 Tr. 242. He immediately concluded that the cut-through had been made in the
wrong location, i.e., not in the most inby "last" break between entries #1 and #2, because if it had
been made there, he believed that very little water would have been encountered. Tr. 231-32. He
called Robinson and told him they had hit water. Robinson said he would call Stewart Bailey,
the safety manager. Pack went underground and met the crew around the head drive for the #5
belt, about 2,000 feet from the section. Tr. 243-44. They were sitting on· the mantrip, talking and
laughing. Tr. 244. He inquired where Gibson was, and was told that he was up at the section,
Pack told the men to stay where they were, and went to find Gibson. He parked his ride and ·
walked up the belt line and across the section and looked at the cut-through. Water was running
down the #1 •entry, crossing over to the #4 entry, then down by the power center and to the area
of the #8 belt head drive, which was located in the low spot. Tr. 246-4 7. He then called out on
the mine phone and talked to Bailey, who had arrived at the mine. Tr. 245. He told the men·to ·
leave because there was nothing they could do at thetime. Tr. 245. Pack and Gibson followed
the crew out of the mine. They reached the surface around 10:30 p.m., and the men were sent
home. Pack returned underground with a few of the third shift miners to set up pumps·anddeal
with the water. Tr. 248;
The following morning, Pack, Bailey and Robinson conferred and it was decided that .
Bailey should call MSHA and report what happened. Bailey talked to Ison, who remarked that it

5

While waiting on the mantrip, the continuolis miner operator, who was apparently drenched
with water, related a "story" about having to hold his head up near the roof of the mine to
breathe. Tr. 30-31 .. That story was fabricated. Gibson assisted him in backing the miner out of
the cut-through, and the water was only ankle deep. The miner operator, and Gibson~ got wet
because the miner operator dropped the pan of the miner on a water line, causing them to be
sprayed with water. Tr. 61-62.
6

Pack testified that he received the call about 9:30 p.m. However, I find that it was closer to
9:00 p.m. Stewart Bailey, ICG' s safety manager, who was called by Robinson after talking with
Pack, thought that he received the call about 9:00 p.m. Tr. 266. After Pack received his call, he
called Robinson, entered the surface buildings, got dressed to go underground, traveled
underground, checked on the men as he rode in, found Gibson, walked the belt line and around
the section, came back to the area of the #8 head drive and called Bailey, proceeded with Gibson
back to where the men were and followed them out of the mine. They had exited the mine
around 10:30 p.m. It would have been extremely difficult for Pack to have accomplished what he
did if he had received the call at 9:30 p.m.
33 FMSHRC Page 406

sounded like something that should have been called in immediately, but that he would get back
to him. Ison called Bailey back, and told him that MSHA was going to investigate. Ison and
Parker met at the mine, examined the preshift books, met Bailey and went underground. They
traveled to the low spot in the area of the #8 belt drive and the tailpiece of the #7 belt. There was
a sharp dip near the tailpiece. The bottom belt was under water, the top belt was dry. Tr. 87-88.
The water was well up on the sides of the #8 head drive. Water in the #5 and #6 intake entries in
that low area was over 18 inches deep, too deep to permit use as the primary escapeway where a
miner might have to be carried on a stretcher. Tr. 88-89. Ison used a yellow highlighter and
marked on a portion of the mine map indicating where the water was pooled in the #4, #5 and #6
entries. Tr. 86; Ex. G-3. Pack confirmed that the water was where Ison indicated. Tr. 247.
There was no water in the return entries, which were "basically dry." Tr. 90.
Parker went to the section faces, and Ison went into the bleeder system and traveled to the
area where the cut-through had been made. He observed the date board near a measuring point
about five breaks outby where the travelable bleeder entry terminated at the comer. Ison
indicated the location of the date board by drawing a red circle on the mine map. Tr. 94-96;
Ex. G-3. The most recent date entered on the board was September 7, indicating that the bleeder
system had last been examined six days before the cut-through. Tr. 95. He observed water
pooled in the outermost bleeder entry, extending about four breaks from the comer, and about
half way up to the traveled bleeder entry. He indicated the area of pooled water by highlighting it
in yellow on the map. Tr. 96; Ex. G-3. He observed what appeared to be a high water mark, like
a ''bathtub ring," at the date board. Tr. 96. While there was no water at the date board, he
estimated that it had receded about 18 inches as a result of the cut-through. Tr. 98. He did not
attempt to measure the amount of the drop, but characterized it as "18 as opposed to 24," or 18
"as opposed to 12." Tr. 98, 133, 158-59. However, he also stated that at the furthest stopping
over, the water level had "dropped 12 inches."7 Tr. 98.
Ison walked down to the outermost bleeder entry, and traveled to his right, against the rib
of the pillar, to a point across from the cut-through. The water got progressively deeper as he
moved, and he had to steady himself by holding onto the rib of the pillar. Mining height was
approximately 50-52 inches. When he was across from the cut-through, he talked to Parker and
could see his through the opening. Tr. 96, 130. He did not attempt to cross that outermost entry
to reach the actual cut-through because the floor dipped down toward the section, and he was not
7

The surface of the water pooled in that comer of the bleeder could not have dropped 18 inches
in one area and 12 inches in another. I give more credit to !son's estimate of a 12-inch drop at
the furthest stopping. It would have been very difficult to accurately estimate the vertical drop
from a high-water mark at the date board to the water's surface which was, according to his
depiction on the mine map, over 120 feet away down one break and over one break. Ex. G-3. In
contrast, judging from where Ison indicated that the water remained pooled in the bleeder, the
surface of the water would have.been a little more than one entry-width away from the furthest
stopping. Ex. G-3. I find that the surface of the water pooled in the bleeder entries dropped
approximately 12-14 inches as a result of the cut-through.
33 FMSHRC Page 407

sure how deep the water was. Tr. 97. There was standing water in the bleeder at that point,
because the cut-through did not extend down to the floor of the bleeder entry. Tr. 98. As he was
facing the cut-through, the mine floor dipped down toward the 009 section and sloped down to
his righttoward the comer. Tr. 156-57. The water had finished draining into the section at the
time, which was about noon on September 14. Tr. 138.
Ison and Parker returned to the surface. Parker wrote and issued the citations and orders.
The section 103(k) order that had been issued when they arrived was modified to allow pumping
of water. Moving of the section equipment had to await pumping ofwater from the low area in
the #5 and #6 entries because that primary escapeway had to be re-opened before miners were
allowed inby. Tr. 99-l 00. They then le.ft the mine site.
Citation No. 6648616
Citation No. 6648616, was issued by Parker on September 14, 2007. As modified by him
on September 18,8 it alleges a violation of 30 C.F.R. § 75.388(a)(l), which requires that:
"Boreholes shall be drilled in each advancing working place when the working place approaches
- to within 50 feet of any area located in the mine as shown by surveys that are certified by a
registered engineer or registered surveyor unless the area has been preshi.ft examined." The
violation was described in the "Condition and Practice" section of the Citation as follows:
A room was driven off the no. 1 entry on the 009 section which was cut through
into a bleeder which resulted in the active 009 section being inundated by water.
Boreholes were not being drilled when the working places approached to within
50 ft. of the location of the cut through as required by this section. Also, the area
had not been preshifted prior to the cut through. This determination was made
when the area was examined and the Dates, Times and Initials of the examiner
could not be found. The last examination date observed in this area was 09-072007 which was the date of the last weekly examination. If the boreholes had
been drilled prior to the cut through, the section would not have been inundated.
The inrush of water entering flooded the 009 section, caused the main power to be
de-energized due to the water entering the high voltage power center, caused the
equipment to be moved outby the faces as far as conditions would allow before a
determination was made to evacuate the area due to rising water. Management
engaged in aggravated conduct constituting more than ordinary negligence in that
had the boreholes been drilled prior to the cut through the inundation would not
have occurred. This violation is an unwarrantable failure to comply with a
mandatory standard.
8

The citation originally alleged a violation of 30 C.F.R. § 75.361(a), which requires
supplemental workplace examinations in certain circumstances. It was modified to allege a
violation of§ 75.388(a)(l), and the Condition and Practice section was amended to address the
new standard.
33 FMSHRC Page 408

Ex. G-7.
Parker determined that it was reasonably likely that the violation would result in a fatal
injury, that the violation was significant and substantial ("S&S"), that eight persons were
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 ofthe operator's unwarrantable
failure to comply with the mandatory standard. A specially assessed civil penalty, in the amount
of $45,000.00, was proposed for this violation.
The Violation
The standard requires that when mining approaches to within 50 feet of other areas of the
mine, that boreholes be drilled into the area being approached, unless that area has been the
subject of a preshift examination to identify any hazardous conditions that might be present.
When ICG initiated the cut-through toward the bleeder entries, it mined to within 50 feet of
another area of the mine as shown on certified surveys. Tr. 103. There was no drill on the
section, and there is no dispute that boreholes were not drilled. There is also no dispute that a
preshift examination had not been conducted in the bleeder area prior to the second shift
beginning work. The Secretary argues that ICG violated the plain language of the regulatory
standard. ICG contends that the intent of the standard is to ensure that boreholes be drilled into
areas that are inaccessible and, since the bleeder was accessible and had been examined
regularly, that boreholes were not required.
ICG's argument is premised upon two Commission decisions, wherein the general intent
of the standard was described as preventing exposure to hazards in inaccessible areas, Ke/lys
Creek Resources, Inc., 19 FMSHRC 457, 461 (Mar. 1997) and Williams Bros. Coal Co., Inc.,
17 FMSHRC 1274, 1275(July1995) (ALJ). 9 Both cases dealt with mining into old works that
had been sealed, and the discussion of the standard was, understandably, couched in terms of the
hazards posed by mining into such areas. The Secretary argues that the standard is clear on its
face and plainly requires the drilling of boreholes unless the area about to be encountered has
been the subject of a preshift examination. I agree. Language quoted by ICG from Kellys Creek
confirms the point.
The text of section 75.388(a) makes plain that the borehole drilling
requirements apply in lieu of the preshift examination required by 30 C.F.R.
§ 75.360 ....
19 FMSHRC at 461. While the Commission went on to observe that preshift examinations
cannot take place in inaccessible areas of a mine, that fact and the discussion that followed do not
9

The Williams Bros. case was not identified in ICG' s brief as a non-binding Administrative
Law Judge decision, in contravention of Commission Procedural Rule 5(h), 29 C.F.R.
§ 2700.5(h).
33 FMSHRC Page 409

alter the conclusion that the standard plainly requires the drilling of boreholes or a preshift
examination when mining approaches another area of the mine.
ICG did not conduct a preshift examination of bleeder area for the second shift on
September 13. It did not drill boreholes into the bleeder area to test for hazardous conditions
prior to mining into it. The standard was clearly violated.
Significant and Substantial
An 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: (1) the underlying violation of a mandatory safety standard; (2} a discrete
safety hazard--that is, a measure of danger to safety-.-contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSlf,A, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power; Inc. v. Secretary ofLabor, 861
F.2d 99, 103-04 (5th Cir. 1988), afj'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987)
(approving Mathies criteria).

In US. 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." US. Steel Mining Co., Inc.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section I 04(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 Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); US. Steel Mining Co.,
Inc., 6 FMSHRC 1573,·1574-75(July1984). .

33 FMSHRC Page 410

This evaluation is made in terms of"continued normal mining operations." U.S. Steel,
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. A measure of danger to safety was
contributed to by the failure to drill boreholes or preshift the bleeder area. An injury resulting
from mining into an area containing an unexpected hazardous condition could be expected to be
reasonably serious. As is often the case, the primary issue in the S&S analysis is whether the
violation was reasonably likely to result in an injury causing event.
The Secretary contends that the subject standard is equivalent to the preshift examination
requirement, which is of :fundamental importance in assuring a safe working environment
underground, and that allowing miners to work or travel where no preshi:ft examination has been
conducted can be found to be an S&S violation even if it is eventually established that no actual
hazardous condition existed. Kellys Creek 19 FMSHRC at 461 (citing Buck Creek Coal Co.,
17 FMSHRC 8, 13-15 (Jan. 1995)). ICG and Pack counter that a preshi:ft examination of the
drilling of boreholes would only have confirmed the existence of conditions that ICG and Pack
already knew existed. They further argue that no miners were injured, miners were not exposed
to risk of drowiung, electrocution or suffocation, and, even with the mistake of making the cutthrough in the wrong crosscut, no one was ever at any risk of injury. ICG's Br. at 23.
In Kel/ys Creek the Commission noted that:
[S]ection 75.388 is similar in :function to the preshift examination requirement;
both standards seek to prevent exposure of miners to undetennined hazards. In
Buck Creek Coal Co., 17 FMSHRC 8, 13-15(January1995), the Commission,
describing the preshift examination requirement as one "of :fundamental
importance in assuring a safe working environment underground, held that a
preshift violation was S&S irrespective of the absence of a specific hazardous
condition disclosed upon the inspector's examination of the mine.
19 FMSHRC at 461.
ICG's arguments that boreholes or a preshi:ft examination would have merely confirmed
what it already knew existed and that no miners were injured are misplaced in that they are
focused on what actually occurred, as opposed to what reasonably might have occurred. ICG
clearly did not know what the conditions in the bleeder were. It may have had reason to believe
that it was unlikely that hazardous conditions were present, but having failed to drill boreholes or
conduct a preshi:ft examination of the area, it did not know that the miners performing the cutthrough would not encounter hazardous conditions. While conditions in the bleeder appeared to
have been relatively stable, conditions in mines can change without warning; that is why preshift
examinations are of ":fundamental importance" in assuring a safe working environment.

33 FMSHRC Page 411

In ordering the cut-through into the bleeder system, ICG caused miners to work in an are<
that had not been examined for six days. Ison noted that additional water may have accumulated
in the area since the last examination, thereby posing a more substantial threat. Tr; 113-14. It is
possible that other adverse changes may have occurred. In Buck Creek, the Commission reverse1
an ALJ's finding that failure to conduct a complete preshift examination and record the results
before allowing miners to enter the mine was not S&S. The facts upon which that decision was
based were much more favorable to the operator than those in the present case, with the
exception that the Bu,ck Creek mine had an unspecified history of methane accumulations and
roof falls, thereby increasing the probability that adverse conditions might have developed
following the last preshift examination. 10 The Commission held that the violation was S&S,
even though no hazardous conditions were found upon completion of the examination. Id. at 1314. Consequently, neither the absence of hazardous conditions, nor the fact that no injuries
occurred, bar a finding that a violation was S&S.
Here, of course, there was a considerable quantity of water in the un-preshifted area.
While the water may not have posed a hazard for a weekly examiner in the bleeder system, it
could have posed a hazard for miners cutting into the bleeder. The water levels had been
relatively stable. However, it is possible, as Ison noted, that additional water could have
accumulated in the area. Because examinations of areas where miners are scheduled to work or
travel are of fundamental importance to assuring a safe working environment underground, I find
that ICG' s failure to drill boreholes or to conduct a preshift examination of the bleeder area prior
to mining into it was reasonably likely to result in a reasonably serious injury and was S&S. 11
Unwarrantable Failure - Negligence

10

In Buck.Creek, three miners, two of whom were certified mine examiners, entered the mine
before the preshift examination had been completed and recorded. The last preshift examination
had been conducted two days earlier. The area they traveled to was at the end of the slope and
had been examined and found free of hazards shortly before they arrived. However, the
examination had not yet been completed, and the Commission noted that a hazard in another area
of the mine could have affected the miners.
11

I do not find, however, that it was reasonably likely that the violation would result in a
fatality. The Secretary argues that Pack's knowledge of the accumulation of water in the bleeder
is an aggravating factor. However, I find it to have been more of a mitigating factor. Pack knew
that there was a finite amount of water pooled in the corner of the bleeder entries. It was about
one foot deep in the. entry he traveled, somewhat deeper in the outermost entry, and had remained
stable for at least a year. The Secretary did not introduce evidence on the likelihood of hazardous
conditions developing fo the bleeder, other than !son's testimony regarding the possibility that
additional water may have accumulated. For example, there is no evidence that the mine had a
history of roof falls or methane accumulations, as there was in Buck Creek. On the facts of this
case, I find that the violation was reasonably likely to result in a lost work days injury.
33 FMSHRC Page 412

In Lopke Quarries, Inc., 23 FMSHRC 705, 711(July2001), the Com.mission reiterated
the law applicable to determining whether a violation is the result of an unwarrantable failure:
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 an unwarrantable
failure analysis 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 violative 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.3d 42 (D.C. Cir. 1999); Midwest Material
Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC
192, 195 (Feb.1994); Peabody Coal Co., 14 BvISHRC 1258, 126l (Aug. 1992);
BethEnergy /wines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quin/and
Coals, 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).
Several factors generally considered in the unwarrantable failure analysis have no
application to the facts of this case. The length of time that the violation existed, the
extensiveness of the violation and efforts to abate the violation are not applicable. There is no
evidence that ICG was put on notice that greater efforts to comply .with the standard were
necessary. The key factors are the operator's knowledge of the violation, which here is the
equivalent of obviousness, and the degree of danger posed by the violation. Also relevant is the
fact that the violation was the direct result of the actions or inactions of Pack, a senior
management official and, secondarily,·ofGibson, a section foreman.

33 FMSHRC Page 413

Pack, ICG's Superintendent, routinely conducted the weekly examinations of the bleeder
area. Tr. 222. Initials on the date board in the area of the cut-through indicated that it had last·
been examined on September 7. Tr. 95; Ex. G-3, G-12. There is no evidence that anyone
performed such an examination between September 7 and the date of the cut-through, September
13. 12 While ICG had been planning to cutthrough into the bleeder for some time to provide
ventilation for retreat mining in the section, as of the beginning of the second shift on September
13, it had not been d~ided that the cut-through would be made that day.. After the shift started,
Pack talked with Robjnson, the decision was made, and Pack called d.own and instructed Gibson
to make the cut-through.
Pack made no effort to comply with the standard because he candidly admitted that he
was unaware of the standard's requirements. Tr. 240, 255; Ex. G-12. He knew that no boreholes
had been drilled, that he had not examined the area, and that he had no information that anyone
else had examined it. Tr. 233, 235, 240; Ex. G-12. Nevertheless, he directed that the cut-through
be made. When he called Gibson to order the cut-through, he did not discuss with him the need
for an examination. Tr. 235. ICGmust be charged with knowledge of the standard, and its
failure to make any attempt at compliance amounts to direct knowledge of the violation. I also
have found that the violation was S&S, and posed a relatively high degree of danger to miners,
because it caused miners to work in an area that had not been examined for six days. The area
contained an accumulation of water that had not been observed in six days and posed a potential
hazard to those mining into it. The fact that it was later confirmed that the amount of water was
not sufficientto pose a serious threat of trapping miners or resulting in a fatality, does little to
mitigate the dangers posed by causing miners·to work in an area of the mine that had not been
examined for several days. Pack's familiarity With the conditions in the bleeder, and his
kllowledge that they had not changed since his last examination, mitigates the gravity of the
violation to some extent. However, it does not override the obviousness of the violation by a
senior management official.
Gibson, .also an agent ofICG, bears some culpability for the violation. 13 He, like Pack,
thought that as long as the bleeder area was being examined weekly, bore holes or a preshift
examination were not required .. Tt;. 66-67. When Pack called to tell him to make the cutthrough, he also related that he had checked the bleeder and there was some water in it. Pack did

12

ICG's examination book for the week ending September 8, 2007, did not reflect an
examination as having been made on September 7. Rather, it purported to record an examination
of the intake on September 4 and an examination of the return on September 5. Ex. G-6. The
next report shows an examination of the intake on September I I, and an examination of the
return, and all of the measuring points, on September 14. Ex. R-3. Pack confirmed in his
statement to the special investigator that he had last been in the bleeder entries on September 7,
the date noted on the date board. Ex. G-12.
13

Gibson apparently was also charged with the violation in his individual capacity, and he did
not contest the violation or the assessed penalty. Tr. 57.
33FMSHRCPage 414

not explicitly state that he had examined the bleeder that day. However, Gibson knew that Pack
was underground when he arrived, and had been at the mine for four hours by the time the call
·was made. He assumed that Pack had examined the bleeder that day. Tr. 50, 59. However
reasonable Gibson's assumption may have been, it fell short of confirming that the bleeder had
been examined prior to the second shift commencing work. He knew, or should have known,
from reviewing the preshift report for his shift that the bleeder had not been included in the
preshift examination. Ex. G-5.
I find that the violation was the result ofICG's unwarrantable failure.

Individual Liability
The Act provides that a director, officer or agent of a corporate operator may be subject to
civil penalties in his individual capacity for knowingly authorizing, ordering or carrying out a
violation of the Act. 30 U.S.C. § 820{c). The legal standards governing individual liability were
summarized in Target Industries, Inc. 23 FMSHRC 945, 963 (Sept. 2001) (Commissioner
Beatty):
Section 110(c) provides that, whenever a corporate operator violates a
mandatory health or safety standard, a director, officer, or agent of such corporate
operator who knowingly authorized; ordered, or carried out the violation shall be
subject to an individual civil penalty. 30 U.S.C. § 820(c). The proper legal
inquiry for determining liability under section 110(c) is whether the corporate
agent knew or had reason to know of a violative condition.. Kenny Richardson,
3 FMSHRC 8, 16 (Jan. 1981), aff'd on other grounds, 689 F.2d 632 (6th Cir.
1982), cert. denied, 461 U.S. 928-(1983); accordFreeman United Coal Mining
Co. v. FMSHRC, 108 F.3d 358, 362-64 (D.C.Cir. 1997). To establish section
110(c) liability, the· Secretary must prove only that an individual knew or had
reason to know of the violative conditions, not that the individual knowingly
violated the law. Warren Steen Constr., Inc., 14 FMSHRC 1125, 1131 (July
1992) (citing United States v. lnt'l Minerals & Chem. Corp., 402 U.S. 558, 563
( 1971)). A knowing violation occurs when an individual "in a position to protect
employee safety and health fails to act on the basis of information that gives him
knowledge or reason to know of the existence ofa violative condition." Kenny
Richardson, 3 FMSHRC at 16. Section 110(c) liability is predicated on
aggravated conduct constituting more than ordinary negligence. BethEnergy
Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992). * * *
Here, Pack had reason to know of the violative condition that he directly authorized.
He, like ICG, is charged with knowledge ofthe standard's requirements, and he knew when he
ordered that the cut-through be made that they had not been complied with. Counsel for Pack
argues that Pack assumed that Gibson would examine the bleeder prior to making the cutthrough, and that he had no direct knowledge that the bleeder had not been examined. Resp.

33 FMSHRC Page 415

Pack Br. at 3. Pack also testified that if a cut-through was to be made, he would assume that the
section foreman would conduct the required exan,rination. Tr. 234. However, I reject those
factual assertions. Pack stated to MSHA's special investigator shortly after the incident, "I didn'1
examine [the bleeder] nor did anyone else because I wasn't aware that I had to examine it."
Tr. 240; Ex. G-12. He did not discuss the examination requirement with Gibson, and did not
make any assumptions about Gibson's examination of the area because he was unaware of the
standard's requirements. Pack directly authorized the actions that he had reason to know
constituted a violation of the standard.
Counsel for Pack also makes much of the argument that the incident was the result of
miscommunication between Pack and Gibson, which resulted in Gibson's making the cut in the
wrong location. If the cut had been made in the location that Pack intended, then it is likely that
less water would have entered the working section, a fact that Ison confirmed. The potential
mitigation of the effects of the violation does not alter the fact that the standard was violated, on
the instructions of Pack, who had reason to know of the violation.
While Pack may not have knowingly violated the standard, his conduct exhibited a degree
of indifference, and a serious lack of reasonable care, that constituted more than ordinary
negligence. As with ICG, Pack's knowledge of conditions in the bleeder days before the cutthrough, and his observations that conditions had not changed markedly over time, mitigate the
danger posed by the violation to some extent. However, I find that Pack had reason to know of
the violative condition that he ordered, and is subject to liability under section 110(c) of the Act.
Order:No.6648619
Order No. 6648619 was issued by Parker on September 14,2007, and alleges a violation
of 30 C.F.R. § 75.364(h) which requires that records be kept of weekly examinations of bleeder
systems. Th~ violation was described in the "Cqndition and Practice" section of the order as
follows:
The record book for the weekly examination for hazardous conditions did not
show that the bleeders or measuring points in the bleeders were being examined,
nor were any hazards noted that may affect this area. The record book did not
show that the last weekly examination for hazardous conditions for this area was
conducted on 09-07-2007 and made no mention of an excessive accumulation of
water in the area of the bleeder. Dates, Times and fuitials of the mine examiner
were present in the area of the bleeder along with the large accumulation of water,
the water extended across 6 entries and appeared to have dropped approximately
18 inches since the room cut through into the bleeder inundating the active 009
section, causing the main power to be d~energized, and the miners to be evacuated
from the section. The last date of examinationwas 09-07-2007. Management
engaged in aggravated conduct constituting mor~ than ordinary negligence by
failure to record the examination of the bleeder or the hazards associated with it

33 FMSHRC Page 416

(large accumulations of water). This violation is an unwarrantable failure to
comply with a mandatory standard.
Ex. G-8.
Parker determined that the violation posed no likelihood of injury, that the violation was
not S&S, that eight 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. A civil
penalty, in the amount of $2,000.00, was proposed for this violation.
The Violation - Unwarrantable failure - Negligence
Section 75.364(a) requires that bleeder systems be inspected at least every seven days,
that hazards be noted and that methane and oxygen concentrations and air flow volume and
direction be determined at various locations, including measuring points specified in the mine's
ventilation plan. Section 75.364(h) requires that a record be kept of the results of each weekly
examination. ICG' s weekly examination records did not reflect the September 7 examination
that was noted on the date board in the area of the cut-through. Tr. 95, 106-07; Exh. R-3. The
record for the exams done during the week ending September 8 did not show air quantities at the
measuring points, or the presence of water in the bleeder. Tr. 106-07, 168-70; Ex. G-6, R-3.
ICG does not contest the fact that the regulation was violated. It does contest the
unwarrantable failure and high negligence designations, and argues that this was a simple record
keeping violation that should have been issued pursuant to section 104(a), and assessed as such.
The Secretary relies, virtually exclusively, on Pack's status as a management official, ICG's
agent, in arguing that ICG exhibited indifference and a serious lack of reasonable care amounting
to unwarrantable failure. Sec'y. Br. at 27-28.
Ison confirmed that the citation was for a record keeping violation. It is not contended
that the examinations and measurements were not done, only that they were not recorded in the
weekly exam book. Tr. 115-18, 168-70. Because of the nature of the violation most of the
factors typically considered in the unwarrantable failure analysis are not pertinent here. Those
most relevant are the direct involvement of a management official and the degree of danger
posed by the violation. There is no dispute that Pack, the mine superintendent, was directly
responsible for the deficient entries in the weekly exam book, which he signed,as reflecting the
results of his examinations. Ex. G-6, R-3. However, the degree of danger posed by the violation
appears to have been relatively low, which most.likely accounts for the Secretary's decision not
to rely on that factor in her argument. Sec'y. Br. at 27-28.
As previously noted, Pack routinely performed the weekly examinations and had
observed the presence of water in the bleeder entry in the area of the cut-through. The amount of
water had remained constant for a long period of time. Ison believed that the presence and depth

33 FMSHRC Page 417

of water should have been recorded in the exam book, so that there would have been a record of
the rate that the water had accumulated, and so that its presence would have been noted and
possibly considered in conjunction with the cut-through. Tr. 116-17, 134-35. However, aside
from his belief that the water must have built up over time, there is no evidence to rebut Pack's
testimony that the water level had not changed during the time he performed the examinations.
Ison testified that he had no reason to doubt that the water levels had remained constant. Tr. 152
Ison also conceded that as far as he knew the water had not compromised air flow or travel in tht
bleeder, and that it w:as not required to be recorded as a hazard, at least until a decision was made
to cut into the bleeder from the working section. Tr. 117, 136. . 37, 168-70. Ison agreed withPacl
that MSHA inspectors would have traveled the bleeder with him during any inspections, and
would have addressed any failure to record the water as a hazard, which was not done. Tr. 123,
167.
The·deficiencies.in the entries on the weekly examination records did not include the
failure to record hazards. While it may have been helpful to have noted the presence of water in
that area of the bleeder system,· it was not required by the regulation, and the failure to do so
could have had only a tangential impact on the eventual release of water into the working section
ICG could not have relied on weekly examination records to assure that it was safe to cut througl
into the bleeder. It was required, under section 75.388, to either drill boreholes or conduct a
preshift examination of the area. 14 The consequences of its failure to do so have been addressed
above.
While Pack's responsibility for the violation, as an agent ofICG, justifies a finding of
high negligence, the fact that the violation did not pose a high degree of danger and that ICG had
not been put on notice that greater compliance efforts were required, lead me to conclude that the
violation was not the result of ICG' s unwarrantable failure to comply with the standard. The
order will be modified to a citation issued pursuant to section 104(a) of the Act, with high
negligence _and the other special findings as cited.
Citation No. 6648617
Citation No. 6648617 was issued by Parker on September· 14; 2007, and alleges a
violation of 30 C.F .R. § 50.10 which requires that operators notify MSHA within I 5 minutes of
the occurrence of an accident. Included in the definition of the term "accident" is "an unplanned
inundation of a mine by liquid or gas." 30 C.F.R. § 50.2(h)(4). The violation was described in
the "Condition and Practice" section of the citation as follows:

An inundation of water occurred on the 009 section on 09-13-2007 at
approximately 20:00 hrs. after a room was driven left off the no. 1 entry, cutting
through into the bleeder releasing a large volume of water causing the section to

14

Failure to record the presence of the water accumulations on the report of a section 75.388
preshift examination would have been a different matter.
33 FMSHRC Page 418

be flooded, the main power to be deenergized and the men to be evacuated from
the section. The operator did not immediately contact the MSHA District Office
having jurisdiction [over] its mine, nor did they contact MSHA Headquarters in
Arlington, Va. The operator waited until the next morning on 09-14-2007 and
contacted the local MSHA Field Office at approximately 08:15 a.m.
Ex. G-9.
The citation alleged that the violation posed no likelihood of an injury, that it was not
S&S, that eight persons were affected, and that the operator's negligence was high.
On October 23, 2007, the citation was modified by Danny Deel, then acting in his
capacity as an MSHA conference and litigation representative for the Secretary. Following a
conference requested by ICG to challenge the citation, the gravity of the violation and the
operator's negligence were substantially enhanced. The wording of the Condition and Practice
section was amended by adding the following:
Timely reporting can be crucial in emergency, life-threatening situations to
activate effective emergency response and rescue. As the chance for encountering
older underground works increases, so does the potential for water inundation. In
this case, the operator's lack of concern for miner safety is apparent in the almost
12 hours it delayed until MSHA was notified.
Ex. G-9.

As amended, the citation alleged that it was reasonably likely that the violation would
result in an injury necessitating lost work days, that the violation was S&S, that eight persons
were affected, and that the operator's failure to comply rose to the level of reckless disregard.
A civil penalty, in the amount of $16,867 .00, was proposed for this violation.
The Violation - Inundation
The term "inundation" is not defined in the regulations. In Island Creek Coal Co.,
20 FMSHRC 14 (Jan. 1998), the Commission interpreted the accident notification standard in the
context of an inundation:
In the absence of an express definition or an indication that the drafters intended a
technical usage, the Commission has relied on the ordinary meaning of the word
to be construed. Peabody Coal Co., 18 FMSHRC 686, 690(May1996), ajf'd,
111F.3d963 (D.C.Cir. 1997) (table). "Inundate" and "Inundation" are defined as
"a rising and spreading of water over land not usu[ ally] submerged: FLOOD ...
DELUGE" and "SUBMERGE ... to overwhelm by great numbers or a superfluity
of something: SWAMP[.]" Webster's Third New Int 'l Dictionary (Unabridged)

33 FMSHRC Page 419

1188 (1986). "Flood" is in tum defined, in relevant part, as "an outpouring of
considerable extent ... a great stream of something ... that flows in a steady
course ... a large quantity widely diffused: superabundance[.]" Id. at 873.
"Deluge" is defined as "an irresistible rush of something (as in overwhelming
numbers, quantity, or volume) ... a forceful jet of water (as from a fire h,ose)[.]"
Id. at 598.
20 FMSHRC at 19.
The Secretary's witnesses offered differing definitions of the term "inundation" and also
differed on when the alleged inundation occurred. Ison testified that, in this context, an
inundation was an inflow of water that caused ICG to lose its ability to produce coal and
prompted the withdrawal of miners. Tr. 120-21. In describing the inundation further, he stated:
"They lost their ability to run coal. Their belts were covered with water. Their head drive was
standing in water. Water was up around the head drive. They thought water was going to get in
the power centers. I don't know if it did or didn't, but they did kill the power and their ability to
produce coal was through for the day." Tr. at 120. Later he added, "They had to kill the power.
They left the mine and mining could not continue. That's an inundation." Tr. 141-42.
Ison didn't know precisely when the inundation occurred. He explained that the men
were sent home before the shift was over. "This happened at 8:00, between 8:00 and 9:00 on
Thursday evening, and their shift was probably over by 11 :00, I guess.... So, it happened pretty
quickly. It certainly happened by the time they sent the men home." Tr. 121. Later, he
explained further that the inundation occurred when all the elements of his definition "come
together that stop them from running coal. You know, the inundation may not have occurred
until 9:30 that night." Tr. 143.
Deel offered several definitions of the term. Initially, he stated that: "My definition [of an
inundation]' is an accidental inrush of water or liquid or gas that stops production." Tr. 195. At
his deposition, three months earlier, he offered the following definition: "it's an inrush of water
or gas that would cause injury to persons in the mine." Tr. 196. At the hearing he adopted both
definitions. Tr. 196. Later, he testified that there would be an inundation even if no one was in
the mine, and that any water coming into the mine, no matter how quickly or slowly it comes in,
is an inundation. Tr. 197, 212 . He was of the opinion that the inundation occurred, and the 15minute reporting period began, at the time the cut-through was made. Tr. 177:..78. His opinion
was based on his understanding that the miners were scared and panicked, and that they hurried
and left the section as Jastas they could by riding on equipment, walking or running. Tr. 176,
185, 189, 203-04.
The Facts
The opening between the bleeder and the 009 section was approximately four feet wide
and four feet high. Tr. 260. When Ison observed it from the bleeder on September 14, water had

33 FMSHRC Page 420

ceased flowing through the hole. Tr. 138. Standing water remained atthe cut-through because it
did not extend down to the floor of the bleeder entry. As noted above, I have found that the level
of the water pooled in the bleeder entries dropped a little over one foot as a result of the cutthrough. Consequently, when the cut-through was made, it extended approximately one foot
below the surface of the water. Water would have started flowing into the section through the
lowest foot of the four-foot wide cut-through (assuming that the low edge was horizontal). The
water was not "forced" into the section under pressure. Rather it flowed, as water would flow
out of a swimming pool, if a four foot wide section of the pool's wall was suddenly removed to
one foot below the water level. The flow was initially at a depth of one foot, but receded down
to zero depth as the pool level subsided to the low point of the cut-through.
When the water entered the roughly 20-foot-wide main part of the cut-through and the #1
entry, it spread out, with a corresponding reduction in depth. Gibson, who was standing in the
water handling the continuous miner cable, testified that the water was a little over ankle deep.
Tr. 62. I accept that testimony as accurate, because it is likely that the one-by-four foot flow
would have spread out to a depth of roughly three-to-four inches as it flowed down the wider
entry. It would have spread out further, with a corresponding reduction in depth, as it flowed
through more entries outby toward the low spot near the #8 belt head drive, where Ison found it
pooled in the #4, #5 and #6 entries.
The miners had been told to expect some water. While Duty expressed some initial
concern, there was no general panic among the miners, and no one hurried to leave. They
followed Gibson's instructions and moved the equipment across the section, and then boarded a
mantrip .and rode outby away from any flowing water. Within five to ten minutes, the miners
were on their way out of the section. 15 Gibson deenergized the power center because he was
uncertain about where the water would eventually pool. There was no water in the power center,
or up on the head drive while the miners were underground. Tr. 63. Duty did not see any water
in the power center or at the head drive. Tr. 40. Gibson rode with the men to the area of the #8
head drive where a phone was located. He disembarked, called outside and instructed that Pack
be called and told that they had hit water. Pack received a call about 9:00 p.m., when he was
entering the mine's parking lot. He then called Robinson, who said that he would call Bailey.
Pack entered the mine, spoke briefly to the miners, who were waiting on the mantrip, 1;0002,000 feet from the section, talking and joking. After Pack checked the conditions in the section
and talked with Gibson, he determined that there was nothing more they could do, and he told the
men to go home. Everyone had left the mine by 10:30 p.m. or 10:45 p.m.
The Parties' Positions - Analysis
The Secretary argues that the inrush of water at the time of the cut-through was an

15

Duty testified that he was on his way away from the water less than five minutes after the cut
through. Tr. 38. Gibson testified that, in less than ten minutes, the equipment had been moved
and the men were on their way out. Tr. 69.
33 FMSHRC Page 421

unplanned inundation, relying almost exclusively on selected portions of Duty's testimony in
characterizing the inflow of water in the nature of a deluge a8 described in Island Creek Seery.
Br. at 24. She argues that the water was "released with such force that it 'kicked the {continuous:
miner around"' that it came in "pretty fast," that the event was "scary" and it was more water
than Duty had seen in his 34 or 35 years as a miner.·· Id. quoting Duty.
ICG argues that there was no "accident" as defined in the regulations, because at least
some of the influx of water was planned, and that the amount of water that entered the working
section did not amount to an inundation. 16 While ICG contends that there was no inundation, it
appears to concede that once the section was flooded, as it was when Ison and Parker saw it, an .
inundation had occurred. It cites the definition in Island Creek and argues that: "Simply put, an
inundation is a flood .... Only several hours later did it become .apparent that the section was
flooded." Resp.ICG Br. at 9.
Considering the various definitions of the term "inundation" offered by the Secretary's
witnesses, as in Island Creek, I find some ambiguity in the term, and must assess the
reasonableness of the Secretary's interpretation. 17 20 FMSHRC at 19. I do not find the ·
Secretary's interpretation to be reasonable. Her argument that there was an inundation at the
time of the cut-through is not convincing. Water was not forced into the mine under pressure,
nor was it released with force. Rather it flowed in, and drained down toward the low spot near
the #8 head drive; a flow that was no more than a few inches deep. She did not address portions
of Duty's testimony that paint a significantly different picture and, consequently,
mischaracterized the facts. 18 Duty thought it was scary "for a minute." Tr. 32. Neither he nor
any other miner panicked or rushed to leave the area. Tr. 39-:-40. Duty erroneously thought that
there was one foot of water in the mine before the cut-through, when there was no more than a

16

While ICG expected that it might encounter some water, the amount of water that actually
flowed into the section, and the resultant disruption of operations, was definitely not planned.
ICG also argues that it did not have fair notice of the Secretary's interpretation of the term
inundation; that section 50.lOis not a mandatory standard and, as such, it cannot be S&S; and
·
that any violation was not S&S or the result of its reckless disregard.
17

There is no evidence that the Secretary has made any effort to further define the term
inundation. The definitions espoused by Ison and Deel were never conveyed to a mine operator,
except in the course of this litigation. Tr. 142, 197.
18

Deel, who also was of the opinion that an inundation occurred at the initial cut-through, based
his decision on an understanding that bore little relationship to the facts. His third-hand
knowledge of the facts was woefully deficient in several major respects, and he steadfastly held
to his opinion under considerably less-favorable factual scenarios, eventually stating that any
water coming into the mine, no matter how quickly or slowly it comes in, would be an
inundation. Tr. 182, 205, 211.
33 FMSHRC Page 422

few inches of water after the cut-through. 19 He was never in any water, did not get the soles of
his feet wet, and did not get any water in his shuttle car. Tr. 3g.:.39. The initial flow was not a
forceful, irresistible overwhelming rush of water. It clearly was not in the nature of a deluge or,
as yet, a flood, as described in Island Creek.
While I find the Secretary's position too expansive, I findICG's too restrictive. By 9:00
p.m., the miners had left the section at Gibson's instruction. The flow had been deemed by
Gibson to pose a threat to the power center, which he deenergized as a precaution. Water had
been draining into the section for almost an hour and was beginning to pool in the area of the #8
belt drive and the #4, #5 and #6 entries, which were part of the primary escapeway. Pack had
been advised of the situation and had called the president and general manager, who called the
safety director. While the water pooling in the section had most likely not yet risen to a
significant depth, it should have been apparent that it soon would. I find that, at that point, the
inflow of water constituted an inundation within the meaning of the regulation. This is
consistent with !son's opinion of when the inundation occurred, which I find to be reasonable,
and consistent with Island Creek. 20
I find that an inundation occurred at approximately 9:00 p.m. on September 13. ICG did
not notify MSHA until the next morning, well beyond the 15 minute deadline. The standard was
violated.
Notice
On the facts of this case, an inundation, as described above, occurred at approximately
9:00 p.m. ICG contends that it did not have fair notice of an interpretation of the standard that
would lead to a finding of a violation. As the Commission explained in Island Creek, it is not
required that an operator receive actual notice of an adverse interpretation. "fustead, the
Commission uses an objective test, i.e., 'whether a reasonably prudent person familiar with the
mining industry and the protective purposes of the standard would have recognized the specific

19

Duty testified that the water "kicked the miner around." Tr. 27. However, he didn't explain
what he meant. Gibson had instructed the continuous miner operator to push the miner's head
into the opening if water came out. Tr. 54. Duty may have misinterpreted such a movement. He
also did not describe other experiences he had had with water entering a mine.
20

There are similarities between the facts in this case and those in Island Creek. There, the
Cammission traced the time line of events, and held that by the time more than six hours had
elapsed following when the miner cut through the core drill hole, the general foreman and
superintendent had been notified, and "methane had continued to flow with great force for over 6
hours, and that methane readings were elevated, on one occasion in -the explosive range, albeit in
a limited area" that the "conditions presented a safety hazard that should have alerted [the
operator] to the necessity of immediately reporting the incident as an accident to MSHA." 20
FMSHRC at 24.
33 FMSHRC Page 423

prohibition or requirement ofthe standard.' Ideal Cement Co., 12 FMSHRC 2409, 2416
(November 1990)." 20 FMSHRC at 24. I find that, as inteq)reted above, a reasonably prudent
person familiar with the mining industry and the protective purposes of the standard would have
recognized the specific prohibition or requirement of the standard. 21 Consequently, I reject ICG's
notice argument. The report of water entering the section at the cut-through prompted Pack to
call Robinson, who called Bailey. With the section's power cut, the miners moved a good
distance away from the section, and water draining into the section and pooling in the low spot, it
should have been apparent that an inundation had occurred which needed to be reported to .
MSHA.
S&S
This is a reporting violation. The inundation should have been reported by about
9: 15 p.m. At that time, the miners were approximately 2,000 feet from the section awaiting
further instruction. 22 No miners were in danger of being trapped. Parker originally determined,
when he wrote the citation, that there was no likelihood that a miner would have been iajured as
a result of the reporting violation. Ison had conferred with Parker on the citation, and obviously
remained of the opinion that the violation posed no likelihood of injury; because by the time the
violation occurred, the miners were well away from any water and were on their way out of the ·
mine. He did not express any opinion about the likelihood of injury from this violation during
his testimony.
I reject Deel's analysis of the likelihood of injuries occurring as a result of the violation
for the same reasons that I rejected his opinion on what constituted an inundation. His third-hand
knowledge of the facts was woefully inadequate in several respects,· and he steadfastly
maintained his opinion virtually regardless of the facts, stating that his assessment of whether an
injury was reasonably likely would not be affected by how quickly the water was coming in, even
if it was a little as one inch per day. ·Tr. 211-12. His initial explanation of the likely mechanics
of an injury was focused on the period immediately after the cut-through, before this violation
occurred. Tr. 200. He did not know where the men had gathered up, or where the water was
draining to, information that he should have obtained from Ison, Parker, MSHA's records, or
ICG itself. 23· Tr. 206. He appeared to be of the opinion that any inundation was reasonably likely

21

On the facts of this case, I would find that a reasonably prudent person familiar With the
mining industry and the protective purpose of the standard would not have recognized that an
inundation had occurred when the cut-through was made, i.e., ICG would not have had fair
notice of such an interpretation of the standard.
22

Gibson returned to the section to monitor the flow. He was in no danger of suffering an
injury at that point, and didn't see any reason to worry about the situation. Tr. 69.
23

ICG was obligated to maintain a periodically updated certified mine map, showing a number
of things, including elevations. Its map was available to the MSHA upon request, and it is likely
33 FMSHRC Page 424

to result in serious injury because he knew that fatal injuries had been suffered in the past when
abandoned works had been cut into. Tr. 78-79, 207-08.
I find the assessment of gravity originally made by Parker and Ison, who were far more
familiar with the facts than Deel, to have been accurate. The violation posed no likelihood of
injury and was not S&S.
Negligence
The amended citation charges that the violation was the result ofICG's reckless
disregard, a level most often associated with a section 104(d) unwarrantable failure violation.
While the citation was issued pursuant to section 104(a), the unwarrantable failure analysis is
useful in determining whether the violation was the result oflCG's reckless disregard. Most of
the factors that would be taken into account in the unwarrantable failure analysis are inapplicable
to this violation. ICG's management officials were responsible for providing the notice.
Consequently, the involvement of a management official is presumed. The violation did not pose
a danger to miners, and there is no indication that ICG was put on notice that greater efforts were
necessary for compliance. fu light of the ambiguity in the definition of the term inundation and
the differing views of when the violation occurred, the violation was not obvious. The violation
was not the result ofICG's reckless disregard. Its negligence was no more than moderate.
The Appropriate Civil Penalties
The parties stipulated that the Calvary mine was a medium-sized mine and that the
futernational Coal Group, fuc., its controlling entity, was large. ICG's history of violations, a
printout from MSHA's computerized database, was introduced into evidence. Ex. G-1. As
summarized in the assessment documents, it reflects that ICG averaged 0.68 violations per_
inspection day during the relevant period. It had no repeat violations, and the two section 104(d)
violations at issue in these cases were the only section 104(d) violations noted in the pertinent
time period. ICG's relatively good history of violations is a mitigating factor in the
determination of appropriate penalties. The parties stipulated that the proposed penalties would
not affect ICG' s ability to continue in business. The violations were promptly abated.
Citation No. 6648616 is affirmed as an S&S and unwarrantable failure violation.
However, a fatal injury was not found to be reasonably likely, and Pack's knowledge of the
conditions in the bleeder mitigated ICG's culpability slightly. A specially assessed civil penalty
of $45,000.00 was proposed by the Secretary. I impose a penalty in the amount of $35,000.00,
upon consideration of the above and the factors enumerated in section 11 O(i) of the Act.
Citation No. 6648616 is also affirmed as to Pack in his individual capacity. A specially
assessed civil penalty in the amount of $1,500.00 was proposed by the Secretary. Pack has no

that the MSHA had a copy ofICG's map. See 30 C.F.R. §§ 75.1200, 1203.
33 FMSHRC Page 425

history of violations, and there was virtually no evidence introduced as to his financial condition.
He does not contend that payment of the proposed penalty would pose an undue financial
hardship. I impose a penalty in the amount of $1,000.00 against Pack in his individual capacity,
upon consideration of the above and the factors enumerated in section l lO(i) of the Act.
Order No. 6648619 is modified to a citation issued pursuant to section 104(a) of the Act
and, as modified, is affirmed. The violation was not the result ofICG's unwarrantable failure.
Its negligence was high and the other special findings were affirmed. A civil penalty of
$2,000.00 was proposed by the Secretary. I impose a penalty in the amount of $1,000.00, upon
consideration of the above and the factors enumerated in section l lO(i) of the Act.
Citation No. 6648617 is affirmed as a violation that posed no likelihood ofinjuzy and was
not S&S. It was also not the result ofICG's reckless disregard. Rather its negligence was
moderate. A civil penalty of$16,867.00 was proposed by theSecretazy. Upon consideration of
the above and the factors enumerated in section 11 O(i) of the Act, and guided by the Secretary's
penalty calculation regulations, 24 I impose a penalty in the amount of $100.00.

ORDER
Citation No. 6648616 is AFFIRMED. Citation No. 6648617 and Order No. 6648619,
which is modified to a citation issued pursuant to section 104(a) of the Act, are
AFFIRMED, as modified. Respondent, ICG, is ORDERED to pay civil penalties in the total
amount of$36,100.00 for the violations, within 45 days.
Citation No. 6648616 is AFFIRMED as to Respondent Randy Pack, and he is
ORDERED to pay a civil penalty in the amount of$1,000.00 within 45 days.

24

30 C.F.R. Subchapter P, Part 100.
33 FMSHRC Page 426

Distribution {Certified Mail):
Christian P. Barber, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456
John M. Williams, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre
Circle, Suite 375, Lexington, KY 40513
Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, PLLC, 151 N. Eagle Creek Drive, Suite
310, Lexington, KY 40509

33 FMSHRC Page 427

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: 202-434-9958 /FAX: 202-434-9949

February 9, 2011
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 2009-418
A.C. No. 11-02632"'.l 79544-0l

v.

Docket No. LAKE 2009-419
A.C. No. 11-02632-179544-02
Docket No. LAKE 2009-494
A.C. No. 11-02632-185333

CENTRE CROWN MINING, LLC.,
Respondent

Docket No. LAKE 2009-542
A.C. No. 11-02632-188265
Mine: Crown ID Mine

DECISION
Appearances: Natalie Lien, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado, for Petitioner;
Hershiel Hayden, Knoxville, Tennessee, for Respondent.
Before:

Judge Rae

This case _is before me on a petition for assessment of civil penalties filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration, against Centre Crown
Mining, LLC, pursuant to sections 105 and I IO of the Federal Mine Safety and Health Act of
1977, (the "Mine Act" or "Act"),30 U.S.C. §§ 815 and 820. A hearing was held on October 26,
2010 in Evansville, Indiana at which the parties presented testimony and documentary evidence
on sixteen (16) violations issued by MSHA to Centre Crown Mining, LLC, ("Crown"), at the
Crown ID Mine.
The parties settled 44 violations prior to the hearing which are listed in Gov. Ex. 46. I
approve the proposed settlement herein. The Respondent requested the opportunity to submit
financial statements to contest his ability to pay the proposed penalties and provide an affidavit
from a union representative to contest citation no. 6675284, Docket No. LAKE 2009-542. By
email dated January 2, 2011, Mr. Hayden indicated that he was withdrawing the objection to the
assessed penalties with regard to their ability to remain in business and that they would not be
submitting the affidavit. Ct. Ex. 1. The Secretary filed a post-hearing brief.
33 FMSHRC Page 428

The parties entered into stipulations contained in the Seeretary' s Prehearing Response
pleading. Specifically, they stipulated that: (1) Crown ill Mine is subject to the jurisdiction of
the Act, (2) Centre Crown Mining, LLC is an operator within the meaning of the Act, (3) I have
jurisdiction over the proceedings, (4) Centre Crown Mining, LLC owns Crown ill Mine, (5) the
exhibits are authentic, (6) the inspector who signed the citations was acting within his official
capacity as an authorized representative of the Secretary of Labor, and (7) the operator
demonstrated good faith in abating all cited conditions.
The parties also stipulated that the proposed penalties would not affect Centre Crown Mining's
ability to remain in business. That stipulation was withdrawn; however, based upon the above
referenced email, the ability to remain in business is no longer at issue.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Crown operated the underground bituminous coal mine known as the Crown III Mine ("Crown
III'') from June 15, 2008 until July 17, 2009. The mine produced 1,360,392 tons of coal in 2009.
Between January and May, 2009, several MSHA inspectors conducted regular inspections of the
Crown ill mine and issued a number of citations for violations of the Act, including the sixteen
addressed herein.
1. Citation No 6675539 (Gov. Ex. 1)

Inspector Chad Lampley has been an MSHA inspector for 3 Yi years. Prior to that, he was
a miner for almost two years performing general labor, roofbolting, driving underground
equipment and performing mechanic's duties. He holds a master's degree in applied science
and an associate's degree in auto mechanics. On January 29, 2009, Inspector Lampley,
conducted a regular inspection of Crown ill and issued Citation No. 6675539 to Crown for a
violation of30 C.F.R. §75.1725(a). The citation states:
The main west belt was not being maintained in safe operating condition in that a
bottom roller was missing and the belt was rubbing the metal frame. This condition
was present between crosscuts 94 & 95. Due to a failed bearing a top roller was
turning against the structure, stopping at times while in contact with the conveyor
belt. This condition was present at crosscut 96. Both conditions create a frictional ·
heat source. The belt was immediately removed from service by the operator.
The inspector assessed the gravity of the violation as reasonably likely to cause in an
injury resulting in lost workdays or restricted duty. He designated the violation as significant and
substantial affecting two persons and the operator's negligence as moderate. The proposed
penalty is $687.00.
a. The Violation
Section 75 .1725(a) states that mobile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery or equipment in unsafe condition shall be
33 FMSHRC Page 429

removed from service immediately. Inspector Lampley testified that the conveyor belt located
between crosscuts 94 and 95 was missing several rollers causing the belt to cut into the metal
frame thereby causing friction. Similarly, a top roller on the belt at crosscut 96 was turning
against the frame cutting into metal below. This resulted in a heat source. Coal was being
moved on the belt at the time he observed these conditions. At crosscut 94195, the belt line is
adjacent to the travelway used by the miners. It is· also the secondary escapeway. There is
common air between the travel way and the belt line. Tr 22-26.
Crown does not dispute that the violation occurred but argues that the gravity should be
assessed as unlikely to cause an injury. Tr 44. This wouid necessitate a finding that the violation
was not significant and substantial.
b. Significant and Substantial
A violation is significant and substantial ("S&S") if the violation is "of such a 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). There must be "a reasonable likelihood that the
hazard contributed to will result in an injury or illness of areasonably serious nature." Cement
Div., Nat'! Gypsum Co., 3 FMSHRC 822, 825 (Apr. ·1981). Uri.dertheNational Gypsum
definition, "the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard -that is, a measure of danger to safety- contributed to by
the violations; (3) a reasonable likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable lilrnlihood 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..MSH/j., 52 F.3d 133, 135 (71h Cir. 1999);Austin Power, Inc. v. Secretary, 861F.2d99,
103-104 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015,2021 (De. 1987) (approving
Mathies criteria).
In order to meet the requirements of the third, and most difficult to establish, element of
the Mathias. formula, the Commission has provided the following 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., 6FMSHRC
1834, 1836 (August 1984). We have emphasized that, in accordance with the
language of section 104(d)(l ), it is the contribution of a violation to the cause and
effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., Inc.
6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC
1573- 1574 (July 1984). ·
This evaluation is made in consideration of the length of time that the condition in
violation existed prior to the citation and the time it would have existed if normal mining
operations had continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); US. Steel
Mining Co., Inc., 6 FMSHRC at 1574. The question of whether a particular violation is S&S

33 FMSHRC Page 430

depends upon the surrounding circumstances of the violation. Texasgulf, Inc, 10 FMSHRC 498
(Apr. 1988); Youghioghen & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
As stated above, Crown does not dispute that the mandatory safety standard was violated.
Nor did they contest the moderate degree of negligence assessed. Inspector Lampley testified that
based upon his experience, he properly designated the violation as S&S because there was an
accumulation of coal on the belt. In fact, 33 citations had been issued to this operator for
improper accumulations of coal on the belt, three during this particular inspection. He explained
that the accumulations provided combustible material near a heat source caused by :friction from
the belt rubbing against the metal frame of the conveyor. The damaged rollers and the damaged
structural components and some misalignment also caused :frictional heat sources. This created a
significant potential for smoke and fire in an underground mine environment. Tr 27-28.
Conveyor belts, according to Lampley, are one of the more likely sources of an underground fire.
Tr30.
.
The Commission has also considered the hazards posed by accumulations on improperly
maintained conveyor belts. An ALJ' s finding that a belt running on packed coal created a
potential source of ignition of loose coal and float dust, which was reasonably likely to result in
an injury, was upheld by the Commission. Amax Coal Co., 19 FMSHRC 846 (May 1997). In a
case very similar to the present case, the Commission held that friction between the belt rollers
and the accumulations or between the belt and the frame of the conveyor in the presence of
accumulations could cause the accumulations to ignite. The hazard was properly designated as
S&S. It was immaterial, the Commission stated, that there was no identifiable hot spot in the
accumulations because continued use of the equipment in the normal course of mining operations
must be taken into account. Mid-Continental Resources, Inc., 16 FMSHRC 1218 (June 1994).
Inspector Lampley further testified that if a belt fire were to occur, it would be reasonably
likely that a miner would be injured as a result. Because the conveyor belt is also a travel road
for the miner~, it is used several times per day. Additionally, the miner examiner is required to
examine the belt each shift exposing him to injury, as well as any miners assigned to a cleanup
crew. Tr 29. Generally, there are likelyto be at least two miners in this area at any one time but
there could be as many as eight if they are traveling by mantrip. Tr 31. The nature of the injury
likely to occur, in Lampley's opinion, is exposure to fire and smoke inhalation resulting in lost.
workdays and restricted duty. Tr 30.
The Respondent suggested that if they had C02 sensors along the belt line this would
have reduced the likelihood of injury to unlikely, however, Inspector Lampley stated that he did
not recall there being C02 sensors present. Regardless, such sensors would only protect workers
who were inby, not those who were outby. Tr 46. Crown did not introduce any evidence of C02
sensors being present. Inspector Lampley did say that he considered the fact that there was no
methane or carbon monoxide present and that the area was rock dusted but he also considered the
fact that there was float coal dust and accumulations present on and around the belt. The amount
of coal dust that had rubbed off the belt indicated that the condition had existed for at least one
shift already. Tr 36-39, 43. Crown suggested that fire resistant belt material would also reduce
the likelihood of a fire, however, again, they provided no evidence (Crown called no witnesses)
33 FMSHRC Page 431

that the belt was made of such material. They represented that they would provide this evidence
post-hearing which was never done. Tr 39.
Even if Crown had provided evidence of C02 detectors, fire resistant belt material or
other protective equipment, it would not reduce the likelihood of a serious injury occurring,
thereby changing the designation to non-S&S. In the case of Buck Creek Coal, 52 F.3rd 133, 136
(7th Cir. 1995), the operator presented evidence that the mine was equipped with. CO detectors,
fire retardant belts, firefighting equipment and personnel, and a rescue team. The Court upheld
the ALJ' s decision that the seriousness of a fire hazard was not lessened by the presence of safet~
measures with which to fight a fire but, rather, the precautions put in place underscore the
"significant dangers associated with coal mine fires."
I find that Inspector Lampley provided highly reliable information regarding the gravity
and nature of the safety hazard posed by the improperly maintained conveyor belt, giving due
consideration to all of the surrounding circumstances that existed at Crown ID at the time. I,
therefore, find that the preponderance of the evidence establishes that it was reasonably likely
that the missing rollers, misaligned belt and top rollers produced sources of friction in the
presence of accumulations that possessed a reasonable likelihood of causing injuries that would
be serious or fatal. The Secretary has established the four elements under Mathies; the violation
is properly designated as S&S.
2. Citation No. 6675540 (Gov. Ex. 3)
On February 5, 2009, Chad Lampley issued this citation at Crown ID during a regular
inspection for violation of 30 C.F.R. §75.333(h). The citation reads as follows:

The permanent stopping line separating entries# 6 and #7 of the 1st North Submain,
The stopping line
separates the belt entry and travelway (SecondaryEscapeway) from the intake entries
(Primary Escapeway) for Unit ID (MMU-002 &MMU-012) working section. Holes
or leaks in the stopping line were present at the follow (sic) locations; 1) Crosscut
#79 leaks along the top and bottom, 2) Crosscut #77 a 13 inch by 4 inch hole, 3)
Crosscut #76 leaks along the bottom, no sealant along the bottom, 4) #75 leaks
around the bottom, no sealant along the bottom, 5) #74 leak:s through a hole in the
. upper north corner, and not sealed along the bottom. All areas were tested with
chemical smoke and air was moving from the belt entry into the primary escapeway.
w~ not being maintained for ·the purpose.which it was built.

The inspector found that a permanently disabling injury was reasonably likely to occur,
that the violation was the result of moderate negligence, that 20 persons would be affected and
that the violation was significant and substantial. The Secretary proposed a penalty of $3,689 .00
be imposed.
·
.a. The Violation

33 FMSHRC Page 432

This ventiiation control standard, in relevant part, requires "all ventilation controls,
including seals, shall be maintained to serve the purpose for which they were built." Inspector
Lampley testified that on the day of this inspection, he found the air courses between the intake
and conveyor belt and secondary escapeway were not being maintained properly. The belt line ·
poses an inherent fire hazard and needs to be separated from escapeways. This separation of
airways is accomplished by placement of permanent stopping curtains in the appropriate places.
The curtains between crosscuts 6 and 7, however, were not being properly maintained to
adequately separate the .air from the belt line and the travelway or the escapeway. The damaged
curtains were found at several places outby the working section and were noted with the defects
as set forth in the citation above. Tr 51-54.
Crown does not contest that the regulation was violated nor did they object to the level of
negligence. I find that the violation existed as cited by Inspector Lampley. Crown argues that the
likelihood ofan injury should be modified to unlikely and the nature of the injury should be lost
work days rather than permanently disabling. Tr 66. This would necessitate a finding that the
violation is not S&S.
b. Significant and Substantial 1
Lampley testified that should a fire occur in the belt line, the damaged stoppings, coupled
with the improper air pressure cited in the following citation, would cause smoke to move from
the belt line into the intake entry which is the primary escapeway, as well as into the travelway
which doubles as the secondary escapeway. The improper air pressure at the site was forcing the
air from the belt line toward the travel and entryways. The numerous large holes and gaps in the
stoppings did not prevent the air from flowing into these areas as they are designed to do. He
observed float coal dust on the intake side that had entered through the stoppings. This indicated
to him, together with other factors, that this condition had existed for several days. As he
previously testified, the belt line is an inherently likely location for a fire caused by the friction
on the belt igniting the coal accumulations. If this were to occur under the conditions as they
existed, the smoke would flow into the escapeways and the miners working inby of the area
would be exposed to smoke inhalation injuries which could in turn prevent their escape. Tr 5559. The entire working crew would be affected by this hazard which would be 20 miners. Tr
58.
Crown con.firms that it had been several days since the last belt was moved which
confirms that the condition existed for several days. Tr 65. They assert, however, that since
Inspector Lampley did not take air readings inby on the intake that he could not tell the exact
volume of air seeping into the entryway. Lampley did use chemical smoke to test the air
exchange and could see it coursing through the stoppings. Tr 64.
Inspector Lampley has a master's degree in applied science. He has experience as a miner
as well as three years as an MSHA inspector. I accept his expert opinion that there was a
sufficient volume of air passing through the numerous sizeable holes and gaps in the stoppings
1

The applicable legal analysis of S&S is set forth in section A. Lb. of this decision and applies to all
subsequent violations addressed herein.

33 FMSHRC Page 433

into the entry and escapeways to reasonably expose the miners to smoke inhalation injuries .
. Thus, I find the Mathies formula has been .satisfied. There has been an undisputed
violation of a mandatory standard. Secondly, there is a measure of danger to safety contributed
to by the violation - the danger of smoke infiltrating the iiltake entries and escapeways in the
event of a belt fire. Third, the seepage of smoke from the belt line airway would cause smoke
inhalation injuries, and finally, that such injuries would be serious and quite possibly fatal.
· 3. Citation No. 6675541 (Gov. Ex. 4)
On February 5, 2009, Inspector Lampley issued this citation for a violation of30 C;F.R.
§75.350(a). The citation states:
Air from the belt entry was being used to provide air to the working section Unit ID
(MMU-002 & MMlJ.:.012). When tested with chemical smoke air was traced from
the belt· entry to the working section. Air was traveling through leaks in the
permanent stopping line separating the (#6) belt entry from the intake entry (#7)
(reference citation #6675540). The operator immediately halted mining and removed
the belt from service.
The violation was assessed as posing a reasonable likelihood ·of causing a permanently
disabling injury to 20 miners and was deemed significant ~d substantial. A moderate degree of
negligence was involved. The penalty was proposed at $3689.00.
CroWn acknowledged the violation but requested the nature of the injury be modified to
lost workdays. Tr 87. They did not offer any evidence to support their assertion or to contest the
degree of negligence assessed,
a.

The viofation

30 C:.F.R. §75.350(a) states that "the belt air course must not be used as a return air
course; and except as provided in paragraph (b) ·of this section, the belt air course must not be
used to provide air to working sections or to areas where mechanized mining equipment is being
·
·
installed or removed." 2
The air in the mine is designed to travel down the primary escapeway which is also the
intake aircourse to ventilate the working section. The air should then return via the secondary
escapeway/return aircourse, which shares air with the belt line, and exit the mine. This air flow
is controlled, in part, by maintaining lower pressure in the return course in order to push the fresh
air down the intake course and draw it out through the return. . What Inspector Lampley found
was that the air pressure in the intake was reversed; it was lower than the return. The return air
then from the belt line was being sucked from the return into the entry/primary escapeway, partly
due the holes and leaks in the permanent stoppings between the two air courses, and was
traveling to the working section. Tr 68-69. Although the improperly maintained stoppings
2

Neither party has alleged that the exception in paragraph (b), permitting belt air to ventilate the working
section if approved by the district manager in the ventilating plan, is applicable.

33 FMSHRC Page 434

contributed to the hazard caused by the violation, the reverse air pressure was, in and of itself, a
separate and distinguishable violation caused by the return vent not being opened to the correct
degree. Tr 72-73. This violation existed for several shifts in Lampley's estimation. Tr 73. The
operator abated the violation by opening a vent at the end of the return to create lower pressure in
the return aircourse. Tr 69.
b. Significant and Substantial
Inspector Lampley testified credibly that the belt line is an inherently likely source of a
fire in a mine. At the time he issued the citation, the belt line was in operation and it was in a
working section. Tr 71. There was also the potential for diesel equipment being transported
through the travelway to catch fire. The very real potential for fires on the belt line has been
recognized by the court and the Commission as well in Buck Creek Coal, supra. The threat of
explosions are also a constant hazard in an underground mine. See Wabash Mine Holding Co. v.
Secretary ofLabor, 28 FMSHRC 155 at 168 (March 2006)(ALJ). Furthermore, this mine has a
history of accumulations of coal along the belt way which was cited during this inspection ·as
well. The Commission has held that it was not necessary to identify a particular hot spot in the
accumulations of coal on a conveyor belt to properly designate a violation as S&S recognizing
the inherent danger of ignition posed by accumulations. Mid-Continent Resources, Inc., 16
FMSHRC 1218, 1222 (June 1994).

If a fire or explosion were to occur in the belt line or secondary escapeway outby of the
working section, the lower pressure in the intake would cause the smoke and deadly gases to be .
drawn into the primary escapeway thereby resulting in a contaminated primary and secondary
escapeway. Tr 71-72, 87-88. With both escapeways contarp.inated with smoke and carbon
monoxide, the injuries would be reasonably likely to be serious in nature, if not fatal, and
reasonably likely to occur.
The ~espondent established through cross-examination of Inspector Lampley that the
precise volume of air flowing from the return aircourse into the intake was not measured.
Inspector Lampley also admitted that he did not know exactly how many parts per million of
carbon monoxide or methane would be required to overcome a miner seeking escape from the
mine in the event of a fire in the belt line. Tr 83-85. The difference in air pressure was, however,
obvious in that he could feel the air flowing through the holes in the stopping. By using chemical
dust, he was able to see the transfer of air from the return to the intake. Tr 74-75. Furthermore,
as stated in the discussion above regarding the previous citation, he also observed float coal dust
on the intake side that had filtered through the holes and gaps in the stoppings. The holes and
gaps were large as well as numerous. Based upon this information, I find that Inspector
Lampley's expert opinion that there was a sufficient leakage of air from the return aircourse to
pose a discrete and heightened safety hazard contributed to by the violation is well founded based
upon all surrounding circumstances. I accept his assessment and find the violation is properly
designated as significant and substantial.
4. Citation No. 6675847 (Gov. Ex. 8)

33 FMSHRC Page 435

This citation was issued by Inspector Lampley on March 27, 2009, when he found Alpha
4035 diesel truck did not have a functioning parking brake in violation of section in 1909(d) of
the Secretary's regulations. The citation 6675847 alleges that:
The company #4035 diesel maintenance truck was not provided with a functional
parking brake. The #4035 truck was in service at the bottom shop. The operator
removed the truck from service.
This citation was also designated as S&S with a reasonable likelihood to result in an
injury causing lost workdays or restricted duty affecting one person. It was a result of moderate
negligence. The proposed penalty is $634.00.
Crown contends that the Secretary has not met her burden of proving that the mandatory
stan&µ-d was violated because the equipment was not tested on grade which is required by the
regulation.
a. The Violation
When the truck operator set the parking brake, put the truck in gear and lightly pressed on
the accelerator, the truck continued to move with little or no resistance when acceleration was
stopped. This test was conducted on a flat surface. Tr 119. Inspector Lampley determiri.ed that
this demonstrated to him that the truck was not being maintained in accordance with section
75,1909(d) which provides, in relevant part, that "self-propelled nonpermissible light'."duty diesel
powered equipment under §75.1908(b) ... must be provided with a parking brake that holds the,
fully loaded equipment stationary on the maximum grade on which it is .operated despite any
'contraction of the brake parts, exhaustion of any nonmechanical source of energy, or leakage.''
When questioned by the Respondent as to why he did not test the truck on the maximum
grade in the mine where the truck would be used, Lampley testified that because the truck would
not hold on,a flat surface, there was no needed to test it further on grade. Furthermore, as a
former assistant service manager for Ford, a certified auto mechanic and an outby mechanic
miner, he knew from experience that if the brake did not hold on flat grounci, it also would not
hold on grade and testing the brakes in the manner in which it was done was appropriate. Tr
119-121. 142. He also did not want to endanger any miners driving a truck with faulty breaks to a
location where there was a grade. The mine is very large and relatively flat. To find an area
where there was a grade would have required driving the truck a considerable distance. Tr 131~
134.
In a similar case before Judge Koutras, the inspector testified that he did not test the
parking brake in accordance with the manufacturer's specifications which provided that the test
be done on level ground. The standard required the parking brake be tested on the maximum
grade on which the vehicle traveled. Instead, the inspector tested it on a slight incline while the
loader was rolling to see how long it took for the parking brake to stop its movement. He
concluded that the inspector, with 16 years of experience with MSHA, rightly determined that if
the empty loader failed to pass the most minimal test, the parking break would not hold on the

33 FMSHRC Page 436

maximum grade of traveL See Secretary ofLabor v. Highlands County Board of
Commissioners, 14 FMSHRC 270 (Feb. 1992)(ALJ). Judge Koutras cited several prior cases
which affirmed inadequate parking brake citations challenged on the testing procedures. In
Thompson Coal & Construction, Inc., 8 FMSHRC 1748 (Nov. 1986), the inspector tested the
brake by instructing the driver to put the vehicle in reverse on level ground. In a case heard by
Judge Cook, the parking brakes were tested by the driver putting the vehicle in third and fourth
gear, depressing the brake and accelerating. The truck started to creep which was sufficient proof
that the brakes would not hold on any grade on which it would travel. The respondent could not
establish that the test produced inaccurate results and the judge concluded that the test results
established a prima facie violation. See Medusa Cement Company, 2 FMSHRC 810 (Apr.
1980).
I have considered the testimony presented, the inspector's experience, not only with
MSHA but also as a trained mechanic with a master's degree in applied science, and the fact that
the respondent has offered no evidence to rebut the inspector's expert opi:rrion. In conclusion, I
agree with Inspeetor Lampley's logical assessment that if the parking brake does not hold the
truck stationary on a flat surface after acceleration has ceased, it will not hold under the more
rigorous test of setting it on a grade. Inspector Lampley used good judgment in determining
that driving the malfunctioning truck to another location only to confirm what was readily
apparent, would unnecessarily put others at risk of harm. I :find that the Secretary has proven by
a preponderance of the evidence that the mandatory safety standard was violated. The.citation is
affirmed.
b. Significant and Substantial
The violation was deemed S&S because the vehicle was used routinely in all areas of the
mine. When not in use, it was parked near the shop which is an area traveled by miners going to
and from their work areas. There were always people in and around this vehicle. Tr 126. Ifthis
truck was parked on grade or not put in park, it could strike an individual or another piece of
equipment with a miner on it. Continued use of the vehicle under normal mining operations
posed a reasonable likelihood that such an accident would occur, in Inspector Lampley's
estimation. Tr 125. Resulting injuries would result in, at a minimum, lost workdays or restricted
duty. Tr 127. The vehicle was subject to weekly inspections as well as daily operation;
therefore, the condition should have been detected and remedied. Tr 127-128. The respondent
has offered nothing to contradict Inspector Lampley' s testimony.
In Secretary ofLabor v. FMS Corporation, 28 FMSHRC 50 (Jan, 31, 2006) (ALJ
Manning) a Jeep's parking brake failed when the transmission slipped from park into reverse on
level ground pinning the driver between the rear bumper and a wall. He suffered extensive
internal iajuries as a result. The violation was upheld as S&S by Judge Manning, in part,
because a serious injury did occur which was directly related to the violation. While no injury
occurred at the Crown III mine due to the inoperative parking brake, the FMS Corporation case
is illustrative of the severity of injuries that are reasonably likelyto occur in the context of
normal mining operations even when operating the vehicle on level ground.

33 FMSHRC Page 437

I conclude, having considered the credible testimony of Inspector Lampley and the
surrounding facts and circumstances, that the Secretary has established the Mathies criteria by a
preponderance of the evidence. The discrete safety hazard -being stru~k by an uncontrollable
truck - has been created by thenonfunctioning parking brake. There exists a reasonable
likelihood that being run over, struck or pinned by the truck would result in an iajury and that the
injury would be of a reasonably serious nature.
5. Citation No. 7493279 (Gov. Ex. 10)
This citation was issued by Inspector Larry Rinehart for inadequate parking brakes on a ·
small mantrip under section 74.1909(d). Inspector Rinehart is a retired MSHA inspector with
prior experience as an electrician in underground mines. He attended college studying power
mechanics which included testing of brakes and other mechanical systems on vehicles. He was
also trained in the military to conduct preoperational inspections on motorized equipment and
finally, he worked in an Exxon service station performing motor vehicle safety inspections for
the state of West Virginia. His training for this job was provided by the state of West Virginia
and included training on. brake testing procedures.
The violation issued on March 18, 2009~ during a regular inspection, was designated as
S&S with the reasonable likelihood of causi:ilg an injury resulting in lost workdays or restricted
duty affecting one person resulting from moderate negligence on the part of Crown. The citation
alleges that "the diesel vehicle, company number 3121 located in the bottom shop was not
equipped with a park brake that would hold the machine stationary on a grade." The proposed
penalty is $499.00.
a. The Violation
fuspector Rinehart testified that he tested the mantrip's parking brake in the same manner
as fuspector Lampley did the truck involved in ~e preceding violation discussed above. Tr 139141. ·Like Lampley, Rinehart determined based upon his many years of experience in auto
mechanics, that it was unnecessary to test the m:antrip on grade when it did not hold on level
ground.
Crown contests this violation for the same reason as they did Citation No. 6675847
discussed above. Based upon the same analysis, I find the Secretary has established a violation
of the mandatory safety standard.
b. Significant and Substantial
fuspector Rinehart testified that the equipment in question is a five or six man light-duty
vehicle. Tr 141. The lack of a functioning parking brake exposed miners to the hazard of being
struck by it if it were to remain in operation under normal mining conditions. Tr 143. He
inspected the wear on the. brakes as well as the preoperational inspection reports and determined
that the park brake and the service brake could fail at any time and the condition had existed for
at least one shift. Tr 144.

33 FMSHRC Page 438

The respondent's representative declined the opportunity to cross-examine the inspector
stating "this is the same issue as the previous one ...we think it should be vacated because it was
not the proper test" Tr 145.
For the same reasons and based upon the same analysis set forth in section 4. b. above, I
find the citation was properly designated as S&S.
6. Citation No. 7493286 (Gov. Ex. 12)
This citation was also issued by Inspector Rinehart under section 74.1909(d) on May 5,
2009 for vehicle number 3044. The citation alleges that this vehicle "located on unit two was not
equipped with a park brake that would hold the machine stationary on a grade."
The citation is written as reasonably likely to cause an injury that would result in lost
workdays or restricted duty, that it would affect one person and was the result of a moderate
degree of negligence. It was designated as S&S and carries a proposed penalty of$634.00.
a. The Violation
Inspector Rinehart initially testified that the vehicle was placed on a slight grade, the
parking brake was set, and when placed in neutral, the vehicle began to roll down hill. Tr 147.
He later said that additional testing was done on the vehicle by turning off the motor and placing
it in each gear. Again, it rolled down hill without any resistance. Tr 151. At this point, Crown
accepted the violation as written. Tr 152. Thus I find it unnecessary to discuss the S&S
designation as it would be identical to the two preceding citations and has not been challenged.
7. Citation No. 6675287 (Gov. Ex. 20)
Dennis Baum is a certified MSHA inspector certified in March 2007. His prior
experience is .as a miner for Consolidation Coal for five years and with Crown III for 20 years.
During a regillar inspection he conducted on April 15, 2009, the inspector issued a citation under
section 75.370(a)(l) of the regulatfons. Specifically he cited the following alleged violation:
A violation of the operator's approved ventilation plan is present in the 2nd
South/Main West panel, 001/011 MMU. When checked with a calibrated
anemometer, there is only 17,685 CFM of air in the last open crosscut between
entries #2 and #3. The approved ventilation plan requires a minimum of 20,000
CFM of air in the last open crosscut. Coal production was ceased until ventilation
could be restored.
Baum designated the violation as S&S with a reasonable likelihood that an injury would
occur resulting in a permanently disabling condition affecting five persons. The negligence was
marked as low. The proposed penalty is $745.00.
a. The Violation
The cited standard provides:
33 FMSHRC Page 439

The operator shall develop and follow a ventilation plan approved by the district
manager. The plan shall be designed to control methane and respirable dust and shall
be suitable to the conditions and mining system at the mine. The ventilation plan
shall consist of two parts, the plan content as prescribed in §75.371 and the
ventilation map with information as prescribed in §75 .3 72. Only that portion of the
map which contains information required under §75.371 will be subject to approval
by the district manager.
30 C.F.R. §75.370.
Inspector Baum was in possession of the approved ventilation plan for the Crown ill mine
when he performed his inspection. The plan requires 20,000 CFM of air at the last open
crosscut. Tr 231-232 and Gov.. Ex. 39. When he took his measurements, there was 17,685 CFM
in that location.
Crown does not contest the violation per se but argues that this violation and the two
discussed below should be modified to unlikely to occur and resulting in lost workdays or
restricted duty. They admit that the air readings were accurate but that the lower levels
permissible under the plan prior to Centre Crown ownership justify this reduction. 3 Tr 249-259.
This standard requires strict adherence to the approved ventilation plan which was clearly
violated;
b. Significant and Substantial
Black lung disease is a permanently disabling medical condition caused by long term
exposure to coal dust. At the time Inspector Baum. took his readings, there was float coal dust
visible in the air and miners were working downwind ofit. fuspector Baum stated that this mine
has a history of miner's claims of black lung disease and the inability to·meet the respirable dust
requirements. Tr234-236. The inspector was not able to say, however, that any such violations
have been Cited since Crown took over operations of Crown III mine. Nor could he say that he
was aware of any black lung disease claims since Crown has operated the mine. Because he ·saw
the coal dust in the air while miners were working in the area, the inspector designated this
particular violation S&S. Tr 236-23 7. The condition was believed by the inspector to have lasted
only a short period of time. In fact, he recalled that mine personnel had taken air samples that
shift and the volume met the ventilation plan requirements. Also, they were running the dust
pumps which would provide the requisite amount of air to the area. He explained that in the past
there was a problem but now they have someone go in and monitor the pumps and take air
readings and ensure they are maintaining ventilation. Tr 237-238. In order to abate this citation,
they tightened some curtains to keep the air in the crosscut. This increased the volume of air to
24,300 CFM. Gov. Ex. 20.
3

Respondent sought to introduce documents establishing that they objected to the changes in the
ventilation plan approved by the district manager at the time they took over management of Crown ID Mine.
Crown requested that I hear and decide the issues regarding their objections in defense of these citations. I
find these documents irrelevant to these proceedings and that this is not the proper venue to contest this
issue.

33 FMSHRC Page 440

I find that should an injury occur as a result of this violation, it would likely be
pennanently disabling. However, I find Inspector Baum's testimony that the violation existed for
a short period of time and that Crown personnel were actively taking timely steps to remediate
the condition, not only at the time this citation was issued, but on a regular basis by checking the
pumps and taking air readings, significant. I also find significant that fact that Centre Crown had
fairly recently taken over operations of Crown III mine and the inspector could not say the history
of similar violations had been committed by this operator. Furthennore, complicated
pneumoconiosis is contracted only from exposure to coal dust over a very long period of time.
Taking these facts together, I find that an injury was not reasonably likely to occur because there
was no evidence presented that the hazard lasted for a prolonged period of time or was likely to,
considering the operator's demonstrated actions in monitoring air volumes. The third criterion
under Mathies has not been met; this violation is not significant and substantial.
8. Citation No. 6675290 (Gov. Ex. 22)
This citation was issued under the same standard as the previous citation. It was issued
on April 21, 2009, by Inspector Baum. The citation reads as follows:
A violation of the operator's approved ventilation plan is present in the 3n1 West
panel off the 1st North Sub-Mains. When checked with a calibrated anemometer,
there is only 15, 113 CFM of air in the last open crosscut between entries 2 and 3.
The approved ventilation plan requires that 20,000 CFM of air be in the last open
crosscut. Mining was ceased until corrections were made.
Inspector Baum cited the gravity as unlikely to result in pennanently disabling injuries to
two miners as a result of a moderate degree of negligence by the operator. This citation, unlike
the previous one or the following one, was not designated as significant and substantial._
Inspector Baum's reasoning was that he did not see any float coal dust in the air when he issued
the cjtation; Qtherwise, this violation was alike iri all other respects· from the other two. Tr 240241. The proposed penalty is $207.00. The operator abated the violation by tightening the
curtains and the air volume increased to 23,562 CFM. Gov. Ex. 22.
As noted in the above discussion, I find the operator's objection to the change in the
approved ventilation plan does not provide Crown with a valid defense to this violation. This
standard imposes strict liability for a violation. The air readings were not challenged and the
Secretary has met her burden of proving the violation therewith.
9. Citation No. 6675297 (Gov. Ex. 24)
This citation was issued on April 24, 2009, under the same standard as two citations
discussed above. This one, like citation no. 6675287, was designated as S&S because there was
coal dust visible in the air. Tr 244-245. The gravity is cited as reasonably likely to result in
pennanently disabling injuries due to the potential for coal dust to cause black lung disease and
was the result of moderate negligence on the part of the operator. The citation states that the 2nd
South/Main West, 001/010 MMU when checked with an anemometer had 17, 677 CFM of air.

33 FMSHRC Page 441

The curtains were tightened and air was restored to 21,645 CFM within approximately 30
minutes. Gov.Ex. 24. The proposed penalty is $1,203.00.
a. The Violation
For the same reasons stated above, I find the Secretary has met her burden of proving that
the violation did occur.
b. Significant and Substantial
Inspector Baum testified that he designated this violation as significant and substantial for
the same reasons as he did citation number 6675287 discussed above. He stated that based upon
the mine's history and the fact that this was the third such violation issued during this inspection,
he felt the operator was just not paying sufficient attention to this issue. Tr 246. He was aware
of miners who claimed black lung disease injuries and prior problems with maintaining proper
air volume before he left the Crown ill mine. However, again, Baum testified that he has been
with MSHA since March 2007 and Centre Crown took over operations in June 2008, well after
Baum's employment at Crown III ended. I find, therefore, that the mine's history as Baum knew
it is not a deciding factor in the S&S analysis of these citations. Furthermore, with respect to the
earlier disc-u.ssed citation, he testified that Crown was addressing the issues and checking air
readings and running the pumps, indicating an ill1provement in the amount of attention being
paid to the situation. I also do not find that fact that there was coal dust in the air at the moment
the inspector took his anemometer readings is a sufficient factor to distmguish a significant and
substantial violation from a non-significant and substantial violation.· The coal dust could have
been present for only minutes and depended upon several ·factors including what type of work
was being conducted at the moment.. There was no evidence presented on this point. Moreover,
complicated pneumoconiosis, the disabling form-of black lung disease, is the result of very long
term exposilre'to coal dust. Therefore, all three of these citations should logically be designated
the same way and for the reasons set for the above in section 7. b., I find that they should not be
designated as significant and substantial.
l 0. Citation No. 6675836 (Gov. Ex. 6)
This dtation was issued on March 17, 2009 by Inspector Lampley during a regular
inspection. The violation is issued under 30 C.F.R. §75.220(a), for failure to adhere to the
approved roof control plan. It alleges:
The company's approved roof control plan was not being followed on Unit 1 (MMU011 ), 2nc1 South panel, entry #9 S.S. 1838. From 10 ft. outby the last open crosscut
up·to the face (approximately 60 ft.) ten roof bolts were damaged or loose.
The citation was amended to a violation of section 75.202(a), however, the wording of
the narrative section of the citation was not changed.4 The violation was assessed as reasonably
4

The standard under which the violation was written prior to amendment, Section 75.220(a), provides
"each mine operator shall develop and follow a roof control plan, approved by the District Manager, that is
suitable to the prevailing geological conditions, and the mining system to be used at the mine. Additional

33 FMSHRC Page 442

likely to cause an injury resulting in lost workdays or restricted duty affecting two persons. It
was the result of a high degree of negligence and was designated at significant and substantial.
The proposed penalty is $3405.00.
a. The Violation
Section 75.202(a) states the following: "the roof, face and ribs of areas where persons
work or travel shall be supported or otherwise controlled to protect persons from hazards related
to falls of the roof, face or ribs and coal or rock bursts."
The inspector testified that he found ten roof bolts ten feet outby of the last open crosscut
were damaged or loose. Four had no contact with the bearing plate and were hanging loose from
the roof. Two had no damage from being struck by equipment but were loose indicating that
either some portion of the roof had fallen or they were improperly installed. None of the bolts
was offering support to the roof. The entire area of unsupported roof measured 70' x 75'. This
was located in a working section and exposed the miner operator, his helper, the scoop man and
any haulage car drivers to the dangers of working in this unsupported area. Tr 91-94.
Crown III does not argue that the violation did not occur but that the negligence should be
changed from "high" to "moderate" and the gravity of the violation to "unlikely" alleging that the
area had just been cut and the violation was issued just after an idle shift. The respondent further
.stated that they had requested a conference with tJ;te district manager to discuss the high degree of
negligence cited but before the request could be approv~d, the assessment of the penalty was
proposed .. Tr 115. I find this irrelevant to my independent assessment of the degree of negligence
involved as discussed below. I conclude that a s.ection 75202(a) violation under the amended
citation occw:-red as Inspector Lampley testified, rather than a5 the first sentence of the narrative
section of the citation states.
.
. b. Significant and Substantial
The designation of this citation as S&S was based upon fuspector Lampley's observations
of the cited condition as well as his knowledge of this mine' s history ofroof falls as well as ·
industry records of injuries caused by falls. Lampley testified that this 70' x 75' area ofroofwas
not being supported by the damaged or loose roof bolts. -As a result, a large area of roof may fall
out injuring the miner operator, his helper, the scoop operator and any haulage vehicle operators.
This section of the mine had coal and shale sloughing away from the limestone. The permanent
roof bolts are designed to support the roof in between each bolt but with missing or loose bolts, a
larger area of roof could fall and would be more likely to do so. Where there are multiple
permanent support bolts missing or not supporting the roof in an area where miners travel
multiple times each day without any warning flags to prevent exposure, there is an increased
measures shall be taken to protect persons if unusual hazards are encountered." The operator did not raise
the issue of lack of notice due to the incorrect language being used in the narrative portion of the citation
and I find there has been no prejudice to the operator. The amendment was made the day after the citation
was issued providing ample time for the operator to defend against it.

33 FMSHRC Page 443

likelihood ofa in.iner being struck by falling rock. Tr 92- 98. An injury caused by a rock fall is
reasonably likely to be serious. Tr 98.
The Crown ill mine, according to Inspector Lampley, had one of the highest incidents of
roof falls with injuries in the district at the time of this violation. Within an 18 to 24 month
period, they had approximately 65 falls. Additionally, there were incidents of miners being
struck by sloughing rock with resulting lacerations. Lampley was aware of this history from
reviewing the mine's profile before starting his inspections. Tr. 99 and Gov. Ex. 34. Although
not all of the falls may have been due to unsupported roof, the likelihood is increased with the
presence of damaged or loose bolts, in Lampley' s opinion. Tr 101.
Inspector Lampley also referred to a January 2, 2002 fatalgram during his testimony as
evidence of the likelihood of an accident and the gravity of a roof fall under these circumstances.
Gov. Ex. 38. The cause of the fatal roof fall reported therein was due to the presence of seven
damaged roof bolts in an entryway at the second crosscut, a situation very similar to this one. Tr
103-104.
The number of persons affected by the violation was determined to be two persons at any
one time. Although there were multiple persons likely to be in this working section of the mine,
it would be likely that a miner and his helper, or a.bolter and his helper would be in the area at
the same time in close proximity to each other and would both be struck by a roof fall. Tr 104. I1
would .be expected that atthis particular location in the mine, if a portion of the roof fell, it would
likely be a relatively small amount of material causing injuries .seriqus enough to result in lost
workdays or restricted duty. Tr 102.
·
Based upon the expertise of the inspector, and in the absence of evidence to the contrary,
I find the preponderance of the evidence establishes that it was reasonably likely that the
damaged and loose permanent roof !Jolts contributed to the hazard of a roof fall in a working area
of the mine which would be reasonably likely to result in injuries that would be reason~bly
serious. The Secretary has satisfied the four Mathies criteria and established the S&S violation.
c. The Negligence
The respondent requested that the negligence by reduced from "high" to "moderate"
asserting that the area in question had been recently cut therefore the condition had .exited for
only a short period of time thus posing a lower exposure of danger to the miners. In support of
this theory, Inspector Lampley was asked if it was possible that the damaged bolts were a result
of being struck by a piece of equipment being used on the previous shift. Tr 110. Inspector
Lampley responded by saying that if a piece of mefal such as the bolt had been recently struck, he
would able to determine that by a visual inspection. Freshly struck metal rusts relatively quickly
enabling one to assess how long the condition had existed. There was no indication from what he
saw that the condition had just occurred. Tr 116. Furthennore, Inspector Lampley indicated on
his sketch of the area made at the time he cited the violation, that he put the notation "no ·
contact" on several of the bolts. That meant that the loose bolts were not damaged or bent from
being struck by a piece of equipment. Tr 109 and Gov: Ex. 7. If they had been, there would be a
33 FMSHRC Page 444

shiny metal stripling in the otherwise brown metal. Tr 106. They were either loose due to
sloughing rock or improper installation. Tr 93. It was also evident that the face had remained
unchanged for a period of time from the date, time and initials (DTI) that were inscribed on the
roof support plates. There were DTis from at least three shifts on the plates when Lampley
inspected them. Tr 106.
The reason the inspector charged the operator with high negligence for this violation is
because the number ofDTis on the plates proves that an examiner had been there on five
different occasions, dunng at least three shifts, and knew or should have known the hazardous
condition existed and took no corrective action. Tr 107. Nothing was done to flag off the area
and nothing was noted in the pre-shift or on-shift examination book indicating the hazard. Tr
107. Nothing was offered by the operator in mitigation; however, the condition was abated in a
timely manner. Tr 108.
I conclude that the Secretary has established that a high degree of negligence was
involved in allowing this condition to exist. This mine is known for having an extremely high
incident rate of roof falls with injuries, one of the worst in the district. The pre-shift and on-shift
examiners are tasked with the duty to ensure the roof is properly supported in working sections
for the protection of the miners. They should be on heightened alert of such hazards during their
inspections being aware of the history of this mine and of the fatality rate from roof falls in
general. It is unconscionable that five inspections were made of these roof supports and DTI' d
over the course of three shifts and not one of the examiners noted the hazard, flagged out the .area
or took steps to install proper support pins. Moreover, they offered nothing to mitigate the
severity of the violation except to ask the inspector how he could be sure a11 ten bolts in this 70'
x 7 5" area hadn't just been damaged by a piece of equipment used on the preceding shift. Their
lack of concern for the safety of the miners is apparent.
11. Citation No. 6675278 (Gov. Ex. 16)
The regular inspection of April 2, 2009 resulted in the issuance of this citation for another
violation of section 75.202(a). This citation alleges·:
The roof in the number 6 entry in the 3rd West/1 North Sub-Main panel, 012 MMU,
Is not being supported or otherwise controlled to protect persons from the hazards of
a fall of roof. One roof bolt was knocked out and the rib was worn off by the ram
cars, creating an area of unsupported roof measuring approximately nine feet by nine
feet. This area is used by the ram cars hauling coal and is one crosscut inby the turn
to the feeder. The area was dangered out to prevent travel.
Inspector Baum found that an injury resulting in lost workdays or restricted duty was
reasonably likely to result, that one person would be affected, that the violation was significant
and substantial and that it was due to a moderate degree of negligence on the part of the operator.
The penalty proposed is $1203.00.
a. The Violation

33 FMSHRC Page 445

While traveling in the belt entrance in the number 6 entry, Inspector Baum saw a comer
where a bolt had been knocked out and the comer of the wall, or rib, had been rubbed off. It was
obvious that as the ram cars turned the comer coming out of that entry, either their canopy or sid~
board had knocked the bolt and nut off the bearing plate and broke the bolt off. The plate was
gone as well. Tr 203. Because the tum was a tight one and the cars could not get around it
easily, the side of the equipment was rubbing the comers and in this one particular place, the wal
was worn away all the way up to the roof Tr 203-204. The inspector's main concern with this
situation was the unsupported roof resulting from the missing bolt as there were miners working
and traveling in this section of the mine. Tr 204.
The mandatory standard states "the roof, face and ribs of areas where persons work or
travel shall be supported or otherwise controlled to protect persons from hazards related to falls
of the roof, face or ribs and coal or rock bursts." In the inspector's opinion the missing bolt
posed such a threat of a roof fall to the miners working and traveling in this area. He based his
opinion, in large part on his 20 years of experience as a miner at Crown III. He stated that he
recalled the Crown ill mine had· poor roof conditions and an extensive history of roof and rib
accidents, the majority of which resulted in injuries-. Tr 205. During his years at Crown, he saw
many roof falls and explained that the roof can fall in between the bolts when the roof is fully
bolted. When a section is unbolted, the likelihood of a fall increases. Tr 206. As a miner's
representative, Inspector Baum investigated a roof fall at Crown III which resulted in an injury
· serious enough to warrant an immediate report to MSHA. In that instance, the roof had fallen in
between the bolts. Tr. 206 - 207.
Crown raised only an objection to the s&g designation and the likelihood of an injury,
Based upon this and Inspector Baum' s unique expertise on roof falls in this mine, l give full
credit to his testimony and find the violation occurred as cited.
b. Significant and Substantial
Inspector Baum designated the violation as S&S, again, in large part based upon his
unique familiarity with the Crown Ill mine' s history of roof falls and related injuries. In his
experjence, the mine has had bad roof conditions for decades throughout the mine. Many
injuries have resulted from the falls Wlder the best of conditions. With an area of unsupported
roof, if the condition were allowed to continue under normal mining conditions, in his opinion,
there would be a roof fall and an injury. Tr 205-206. Because this area is inby the loading point,
there are workers present, usually one at any given time who would be exposed to the danger of a
fall. Tr 207. The loading point is examined on every shift during the pre-shift and on.;.shift
examinations and the condition should have been identified as a hazard as it was an obvious
condition. Tr 208. Based upon how the rib was worn, the inspector estimated that the condition
had existed for at least one shift. Tr 207. Inspector Baum recalled 58 roof falls and 18 other roof
and.rib accidents at Crown Ill, many of which resulted in injuries and lost workdays. Tr 213.
Inspector Baum went through each and every one of these incidents to determine how many
occurred while Centre Crown was operating the mine. There were 13 falls, two of which
resulted in injuries to miners. Tr 214-221. He felt this was a very high number in the space of
one year. Tr 221. A review of Gov. Ex. 34, the mine history, there were actually 18 roof falls in
33 FMSHRC Page 446

that eleven month period with two resulting in injuries.
Regardless of whether there were 13, 18 or two roof falls, it is not necessary that an injury
actually occur to find a violation is properly designated as S&S. It is also not required that the
Secretary 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) and the inspector's opinion that a violation
is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 20 FMSHR.C 1275,
1278-79 (De. 1998); Buck Creek Coal, Inc. v. MSHA, 52 F3d 133, 135-36 (7th Cir. 1995).
The respondent tried to establish through Baum that by the old rule of thumb, one could
advance inby the last row of permanent support a certain distance - this distance being arm's
length. Tr 210. The respondent then asked if this would be a distance of four feet. Baum
responded by saying "if you've got an arm's length of four feet, I'd say you're a heck of a man."
The distance would be closer to two feet. Tr 211. Because this broken bolt was located in a
corner, there was a distance of nine feet to the next bolt in a triangular pattern. Most accidents,
Baum confirmed, occur in an intersection but he has seen them in entries as well. Tr 211-212.
This exchange, I infer, was intended to establish that the one broken corner bolt would pose little
more of a hazard than that which exists of a roof fall between bolts or in setting the next row of
bolts in unsupported roof. This logic ignores Inspector Baum's testimony that the roof in this
mine in notoriously bad and even when bolts are in place, falls occur. Therefore, it is that much
more of a risk when even one single bolt is not properly installed, or is damaged, broken or
otherwise not doing its job. Additionally, the next bolt was nine feet away, not two.
I find no merit in the respondent's assertions that an injury was unlikely taking into
account Crown III' s history of having an excessive number of roof falls due to poor roof
conditions throughout the mine as Inspector Baum so clearly described. Instead, I find the S&S
designation is supported by the expert testimony of Baum. One damaged roof bolt under the
conditions of this mine could be reasonably likely to result in an injury due to falling rock. The
many past injuries from such an accident have already proven to be reasonably serious on too
many occasions to doubt that an injury from this particular violation would be reasonably serious
as well. The Secretary has met her burden of proof
12. Citation No. 6675733 (Gov. Ex. 14)
George Hoytheacock has been an inspector for MSHA since May 2007. Prior to that he
worked in underground coal mines for over 31 years, seven of which he worked as a roof bolter.
Tr 153-155. During a regular inspection conducted on April 3, 2009, he issued this citation to
Crown under section 75.202(a). It reads as follows:
The roof, face and ribs of areas where persons work or travel shall be supported or
otherwise controlled to protect persons from hazards related to falls of the roof, face
or ribs. Loose and unsupported roof was observed in Unit #4 (MMU-014) working
section. A roof bolt located between room #27 and room #28 has been damaged and
the exposed area measured approximately 8 feet by 7 feet.

33 FMSHR.C Page 447

The inspector assessed the likelihood of an injury as reasonably likely resulting in lost
workdays or restricted duty affecting two miners and designated the violation as significant and
substantial. The proposed penalty is $1304.00.
a. The Violation
This standard is a stated above in sections 10 and 11. When Inspector Hoytheacock was
making an imminent danger rwi across the face in this section of the mine, he observed a·
damaged bolt that appeared to have been struck by something. Tr 157. In his experience he
knows that when a bolt is struck, it can become loose. The bearing plate was no longer in contac
with the roof thereby offering no roof support. The area of unsupported roof measured 8' x 7'
which is a significantly large area. Tr 158. In addition to the.obvious condition of the bolt, it
was also evident that there were gaps and slits in the roof. The inspector made a sounding to
determine the exact condition of the roof where the gaps and slits were located. When tapped
with a brass knobbed stick, a "drummy'' noise was made indicating the rock was no longer solid
and could fall. Tr 159. This was in a working section of the mine exposing miners to the hazard
of a roof fall. Tr 160.
Crown does not contest the violation but requested that the gravity be reduced to unlikely
that an injury would occur because this area was not in an intersection and the negligence be
reduced to low because there had not been a roof fall in this location before. Tr 176.
I accept the inspector's assessment of the conditions in this area of the mine and his
determination that the standard was violated .. In addition to having been an inspector for MSHA
for a significant period of time, he also was familiar with the roof falls in Crown III and had
seven years of experience as a roof bolter to draw upon in making this assessment. I find the
violation supported by the evidence.
b. Sigmficant and Substantial
This violation was designated at significant and substantial because, as Inspector
Hoytheacock stated, approximately 56 square feet of the roof was unsupported in an area where it
was no longer solid. Taking into consideration the fact that this mine had had 10 lost time
accidents due to roof falls in a 10 to 18 month period, this condition created a reasonable
likelihood that a fall would occur. Tr 161-162. Based upon the size of the unsupported area, it
was reasonably likely that a rock of sufficient size would strike a miner and cause a reasonably
serious injury resulting in lost workdays at a minimum if mining operations were to continue. Tr
162. It would be likely that two persons would be injured as there would be. a continuous miner
operator and his helper in close proximity to one another working in this last open crosscut. Due
to noise constraints and the need to communicate with each other, they would be close enough
together to be struck at the same time. Tr 162-163.
It is not required that the Secretary show that it is more probable than not that ;m injury
will result from the violation, U.S.· Steel Mining Co. I therefore find the respondent's argument
unpersuasive that an injury would be unlikely because a roof fall has never occurred, at least as

33 FMSHRC Page 448

he alleges, in this location before. "As long as a miner could be at risk during the course of
normal mining operations, there need not be actual exposure of miners proven" to find a
violation is properly designated at S&S. Consolidation Coal Co., 19 FMSHRC 1897 (Dec. 23,
1997) (ALJ Bulluck). Again, relying on Harlan Cumberland Coal Co., and Buck Creek Coal,
Inc. v. MSHA, the inspector's opinion that a violation is S&S is entitled to substantial weight.
Inspector Hoytheacock articulated sufficient facts upon which to base his expert opinion and I
find that this violation is significant and substantial.
c. Negligence
Crown also contends that the negligence level should be low rather than moderate
because a roof fall has never occurred in this section of the mine before and would not likely to
do so from only one defective bolt. He attempted to establish that under any roof plan, the roof
is supported from one bolt to the next. On Crown's four foot square plan, therefore, the roof
would be supported four feet in each direction from the last installed bolt. What would follow
using this logic is that when one bolt in the square pattern is defective, the bolt to its north, south,
east and west would hold the roof The respondent asked the inspector how far inby the last row
of bolts the roof is supported. Tr 167-169. Inspector Hoytheacock responded that it would be an
imminent danger to proceed past the last row of bolts. Tr 169. He added that talcing into account
the cracks in the roof in this area, the roof would fall out from pin to pin. Each roof bolt
contributes to the support of the roof. Tr 172. Put another way, if one bolt is out in a row of
bolts, it decreases the overall strength of the roof. And although a fall had not occurred in this
section before, a roof fall can occur anywhere in a mine in the inspector's opinion. Tr 177.
The respondent argued also with regard to this citation as well as the last one, that falls
more often occur in the intersections and not when the damaged bolt is in a pillar as in this case.
Tr 176. He asked the inspector if this was correct in an attempt to prove the point. The .
inspector's response was that being in a pillar,, a fall would be less likely to be "massive" buJ a
lesser fall would reasonably result in serious injuries as welt Tr 175.
Inspector Hoytheacock determined that the condition existed for one shift by the presence
of dry rock dust being present which is done on the outer shift. The inspection was done during
the subsequent day shift so the rock dust had to have been laid during the preceding shift. This
being the case, the area should have been inspected twice before the inspection took place -once
on a pre-shift examination three .hours before the day shift began and again on the on-shift
examination. Management, therefore, knew or should have known that the condition existed. Tr
163-164. Hoytheacock did consider the presence of rock dust a mitigating factor in reducing the
negligence from high to moderate. He explained that had there not been rock dust, the area would
have been black making the damaged bolt easier to see. Tr 164. He found no additional
mitigating circumstances and management offered none at the time. Tr 165.
Negligence is the failure to meet the standard of care required by the circumstances.
Moderate negligence is defined by the regulations as when an operator knows or should know
that a violative condition exists but there are some mitigating circumstances. 30 C.F.R.
§100.3(d), Table X. Inspector Hoytheacock offered credible testimony as to the circumstances
33 FMSHRC Page 449

surrounding this violation. They are that: I) Crown Ill has an extensive history of roof falls
many of which resulted in relatively serious injuries; 2) The mine is known to have poor roof
conditions making proper roof support extraordinarily important; 3) The failure of even one bolt
in a four by four square configuration weakens the overall support of the roof; 4) Coupled with
cracks and gaps in the roof, a damaged bolt will reasonably likely result in a roof fall under
normal mining conditions; 5) Roof falls can occur in any part of a mine, not only in
intersections; 6) The unsupported roof condition between room #27 and #28 existed for at least
one shift and should have been examined twice prior to the issuance of this citation; and, 7)
Management knew or should have known of the condition and did nothing to correct the
situation. This was the third of six citations issued between March 17, 2009 and May 7, 2009 fo1
similar unsupported roof or rib conditions. It appears that Crown bears little sense of
responsibility for the safety of their miners. It is only upon fuspector Hoytheacock's testimony
that he felt the presence of rock dust mitigated the violation that I find moderate rather than high
negligence is appropriate.
·
13. Citation No. 6675454 (Gov. Ex. 29)
This citation also alleges a violation of section 75.202(a). It was issued on May 7, 2009
by Inspector Jeffrey Adams. Adams has been an MSHA inspector for three years and was a
miner for 26 years prior to that. His experience in underground mining includes working as a
roof bolter. The citation he issued alleges:
A loose rib in Unit 3, entry no. 4, at survey station 700 was not supported or
otherwise controlled to protect persons from hazards related to falls of roof, face, or
ribs and coal or rock bursts. The rib measure4 approximately 10 feet in length by 8
feet in height and was directly adjacent to the high voltage sled behind the section
power center.
The violation was assessed as reasonably likely to result jn a permanently di~abling
injury, significant and substantial affecting one person and a result of moderate negligence. The
proposed penalty is $1795.00.
· a. The Violation5
On the day in question, Adams was
performing respirable dust sampling when he .walked
.
through what is known as the ''dinner hole" which is a place where miners congregate before
they go to the working face. It is also a place where parts are stored in the shop area. As he
exited the dinner hole going towards the face, he saw a loose rib. near the section power station.
Tr 184-185. He determined that the rib was loose by its appearance. B.oth ·encfs of this ten foot
by eight foot section of the coal wall had a gap approximately six inches wide at each end. There
was also a crack across the top from end to end. Tr 185. The condition was very obvious and
located in one of the two entryways h~ading to the face. It is.traveled by 20 to 22 people on that
unit at least once per shift.. Tr 186. Adjac.ent to this area is the high voltage sled similar to a table
on which excess high voltage cable is coiled. The sled is rather large and takes up the majority of
5

The same standard was cited in this violation as in the preceding three violations.

33 FMSHRC Page 450

the entryway leaving only six feet or so between it and the rib for miners to pass by. Tr 187.
Three timbers were required to support the rib in abatement of the citation. Gov. Ex. 29.
Crown contests the gravity of the citation asserting that it should be marked as unlikely to
cause an injury but does not contest the violation.
I find, based upon Inspector Adams' testimony, the violation is established as cited.
b. Significant and Substantial
Inspector Adams described the rib as weighing approximately three tons. It was larger
than the travel way and would have covered the entire walkway had it fallen. Tr 188. The large
gaps at both ends and the crack across the top indicated to him that it was loose and posed a real
danger of falling. Tr 184. The likely outcome of such a fall would be a crush injury that would
be at least permanently disabling and very likely fatal. Tr 188-189. In support of his opinion, he
referred to two fatalgrams, Gov. Ex. 42 and 43. Both fatal incidents were the result of falls of
unsupported loose ribs in underground mines similar to the condition found at Crown. The most
recent one was dated January 22, 2010. Tr 189-192. The location of this condition in one of the
two travelways to the face made the condition especially perilous. Every miner on the unit
numbering 20 to 22 was exposed to it. Generally, only one person at a time would be walking
through there which is why Adams assessed the exposure as to one person. Tr 193
It does not take any imagination to find that this condition, had it not been cited and
abated, posed a discrete safety hazard of a rib fall that in all reasonable likelihood would resul~ in
an injury and that injury would be of a reasonably serious nature. Taking into consideration the·
weight of the rib and the relative size as compared to the width of the travelway, I find that an
injury resulting from a fall would likely be fatal rather than permariently disabling. I so modify
the gravity of the citation.
· .· c. Negligence
Inspector Adams testified that there were no mitigating facts offered by management at
the time of the inspection. Tr 195. It appeared that the condition had existed for more than one
shift as he explained that usually a pillar cracks first and then as it takes weight over the course of
time, it separates. Tr 193-194. Inspector Adams stated that he designated this citation as.
moderate in negligence because even though it was so obvious that someone must have seen it,
he could not designate it as high because he could not put the operator or a supervisor "right
there to say that they saw it, but someone did." Tr 194. However, he did confirm the fact that
this section would have been subject to the pre- and on-shift examinations. Tr 195.
Three timbers were required to support this huge rib. It was in plain sight in a heavily
trafficked area and was subject to mandatory examinations at least twice before the citation was
issued. It is not necessary to prove that management knew of the condition, only that they should
have known and that there were no mitigating factors to consider in order establishing a high
degree of negligence. Crown has a long and flagrant history of fall-related accidents and clearly
lacks any concern for the safety of their miners. I find the appropriate degree of negligence is
33 FMSHRC Page 451

high rather thari moderate.
14. Citation No. 6675284 (Gov. Ex. 18)
Inspector Baum issued this citation on April 14, 2009 for an alleged violation of section
75.208 because he found:
A visible warning device or physical barrier was not installed to impede travel
beyond permanent roof support. This condition was present in the number 2 entry
of the 3ro West panel off the !51 North Sub-Mains. The continuous miner had holed
the crosscut between nuniber 1 entry and number 2 entry and did not post the last tow
ofpermanentsupport.
The citation was designated as significant and substantial, reasonably likely to cause an
injury resulting in lost workdays or restricted duty, affection one person and involving a ·
moderate degree of negligence on the part of the operator. The proposed penalty is $634.00.
a. The Violation
The standard cited in this Citation requires that "except during the installation of roof
supports, the end of permanent roof support shall be posted with a readily visible warning, or a
physical barrier shall be installed to impede travel beyond permanent support." What Inspector
Baum encountered during his inspection was a crosscut that had been mined between two entries
with no visible warning posted .to impede traffic in the unbolted crosscut. Tr 224. There were no
roof supports being installed at the time the inspector cited this violation. Tr 225. Inspector
Baum stated that the area should be flagged before. the cut is made but, at a minimum, it had to
been done as soon as it is made. Tr 228. When asked by the respondent if he was told there had
been a flag posted earlier that had fallen off, Inspector Baum stated that he did not recall any such
comment and he would have put it in his notes if that had been the case. Tr 230.
The violation was accepted by Crown but they requested that the gravity be reduced to
unlikely because they believed that area had been flagged when the cut was made. The
respondent stated at the hearing that they would provide an affidavit post-hearing from an
individual who was aware of the flag being posted. By email dated January 2, 2011, Mr. Hayden
indicated that they would not be submitting the affidavit. Ct. Ex. 1. There is no evidence that the
area had been flagged off to contest this violation or mitigate the gravity. I find the standard was
violated as cited.
b. Significant and Substantial
This citation was deemed S&S by Inspector Baum because, as he had previously testified,
this mine has bad roof conditions throughout making a fall reasonably likely. The area in which
he found this unsupported roof was an active area of the mine exposing miners to a reasonable
likelihood of being injured by a roof fall. Tr 227. Inspector Baum believed that if struck by a
roof fall, the injury would be reasonably serious and would, at a minimum, result in lost
workdays or restricted duty. Such a fall could easily result in a fatality, however. Tr 226-227.
33 FMSHRC Page 452

Given the fact that only one miner would typically be traveling in this area at any one time, the
inspector felt one miner would be exposed to this hazard. Tr 227. The operator was given only
five minutes to abate this violation because it posed such a serious danger. Tr 229.
The testimony of Inspectors Lampley, Hoytheacock, Adams, and Baum make it
inexorably clear that there exists a very serious and imminent potential for a roof or rib fall in
Crown ID due to geological conditions and lack of safety precautions. This is underscored by the
dozens of roof falls recorded in the history of this mine, many of which have resulted in serious
personal injury. Under these conditions, it is impossible for the operator to justify the risk posed
to miners for allowing unsupported roof conditions to exist for even a minimal period of time.
The fact that the operator has conceded the existence of each of these violations indicates to me
that they not only knew of the unsafe practices being followed in this mine but that the safety of
those who toiled underground was of little consequence to them. It is a well known truth that
mine roofs are inherently dangerous and subject miners to the very real possibility of injury or
death in the event of a fall. For this reason, I find that Inspector Baum's assessment of this
violation as S&S is justified.
15. Citations No. 6675296 (Gov. Ex. 25), and 6675299 (Gov. Ex. 27)
These citations were issued m1der section 75.220(a)(l) of the regulations by Inspector
· Baum during the April 24, 2009 and April 29, 2009 regular inspections as a violation of Crown's
approved roof control plan. Gov. Ex. 33. Citation no. 6675296 alleges:
A violation of the operator's approved roof control plan is present in the 2nd
South/Main West, 001/010 MMU. The crosscut right off of #1 entry at survey
station 2600, is mined from 18'2" to 20'5" wide fora distance of approximately 17'.
The approved roof control plan requires that the width Qf entries and crosscuts be
mined to a maximum of 18'.
CitatiOn no. 6675299 alleges the same facts except that the location of the violation was
in the 3rd South/Main West working section, 001/010 MMU crosscut between 7 and 8. The area
was mined to approximately 19'5" wide to 19'7" wide for a distance of approximately 25'.
Inspector Baum designated both violations as reasonably likely to result in an accident
causing lost workdays or restricted duty, significant and substantial and resulting from moderate
negligence on the part of the operator. He determined that one person was exposed to the hazard
in the first citation and two persons in the second. The proposed penalty is $897.00 on the first
citation and $873 on the second.
a. The Violation
Section 75.220(a)(l) provides that "Each mine operator shall develop and follow a roof
control plan, approved by the District Manager, that is suitable to the prevailing geological
conditions, and the mining system to be used at the mine. Additional measures shall be taken to
protect persons if unusual hazards are encountered." The approved roof control plan for Crown

33 FMSHRC Page 453

ill in effect at the time of this inspection provided that the maximum width of a main entry or
main entry crosscut shall be 18'. Gov. Ex. 33 pg 1.
Crown argued that under a supplemental roof plan, if a cut exceeded 18' an additional
bolt no less than 18 inches in length could be installed to bring the operator into compliance with
the roof support plan. Inspector Baum testified that this supplemental plan required in the event
an entry is driven wider than 18' or the ribs slough off wider than that width, a bolt no less than:
two feet in length must be installed between the rows of the bolts installed in the regular pattern.
When questioned by the respondent why they were, then, not in compliance with the
supplemental plan, Inspector Baum pointed out that the only bolts in the area were those on
pattern according to the plan. There were no additional support bolts as required under the
supplemental plan: installed. Tr 274-276.
After Baum provided this explanation of why Crown was not in compliance with the roof
control plan or the supplemental provision, Crown accepted these two violations as written. Tr
277. I therefore find these two citations were correctly cited and approve them as written.

II. PENALTIES
The MineAct delegates the duty of proposing civil penalties for violations to the
Secretary. 30 U.S.C. §§815(a) and 820(a). When an operator challenges the Secretary's
proposed penalties, the Secretary petitions the Commission to assess them'. 29 C.F.R. §2700.28.
Once petitioned to assess the penalties, the Commission delegates the authority to the
administrative law judges to assess the civil penalties de novo. Section 11 O(i), 30 U.S.C.
§820(1). The administrative Jaw judge is required by the Act to consider the following six
statutory criteria in her assessment of the appropriate penalties:
(1) the operator's history of previous violations, (2) the appropriateness of such
penalty to the size of the business of the operator charged, (3) whether the operator
waS'"negligent, (4) the effect on the operator's ability to continue in business, (5) the
gravity the violation; and (6) the demonstrated good faith of the person charged
in attempting to achieve rapid compliance after notification of a violation. 30 U.S.C.
§820(i).

of

The penalty assessment for a particular violation is withinthe sound discretion of the·
administrative law judge so long as the six statutory criteria and the deterrent purpose of the Act
are given due consideration. Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983), ajf'd,
736 F.2d 1147 (71h Cir. 1984); Cantera Green, 22 FMSHRC 616, 620 (May 2000).
I have given each of the six statutory criteria consideration as well as the deterrent
purpose of the Act in assessing the penalties below. The parties entered into several stipulations
of fact which affect the assessment of penalties. They are: 1) the operator produced 1,360,392
tons of coal in 2009; 2) Crown demonstrated good faith in abating the cited citations, and 3) the
proposed penalties will not affect Crown's abilityto remain in business. :Secretary's Prehearing
Response. The last stipulated fact was withdrawn at the commencement of the hearing and

33 FMSHRC Page 454

respondent was provided the opportunity to provide financial records post-hearing to contest this
issue. By email dated January 2, 2011, they withdrew their objection to this stipulation and
declined to submit any :financial information. Ct. Ex. 1. I find, therefore, that they have
conceded this point.
The parties entered into a settlement agreement on 44 citations prehearing. The terms of
this agreement are contained in Gov. Ex. 46. They have agreed to modify Citation No. 6675094
to reasonably likely to unlikely, high negligence to moderate negligence and S&S to non-S&S
with a penalty of$270.00; Citation No. 6675530 from permanently disabling to lost workdays or
restricted duty with a penalty of $100.00; Citation No. 6675531 from 10 persons affected to 2
with a penalty of $745.00; Citation No. 6675533 from reasonably likely to unlikely, and
permanently disabling to lost workdays or restricted duty with a penalty of $191.00; Citation No.
6675097 from reasonably likely to unlikely with a penalty of $426.00; Citation No. 6675534
from permanently disabling to lost workdays or restricted duty and from 18 persons affected to 2
with a penalty of $109.00; Citation No. 6675098 from reasonably likely to unlikely and from 40
persons affected to 2 with a penalty of$335.00; Citation No. 6675535 from permanently
disabling to lost workdays or restricted duty and from 9 persons affected to 2 with a penalty of
$119.00; Citation No 6675536 from permanently disabling to lost workdays or restricted duty,
affecting 2 persons instead of9 with a penalty of $335.00; Citation No. 6675542 from 3 persons
affected to 1 and moderate negligence to low with a pen:;ilty of$128.00; Citation No. 6675546
from moderate to low negligf:nce with a penalty of$100.00; Citation No. 6675552 from lost
workdays or restricted duty to no lost workdays and from moderate to low negligence with a
penalty of$100.00; Citation No. 6675556 from high negligence to moderate with a penalty of
$1,112.00; Citation No. 6675557 from 20 p~sons affected to l and from moderate negligence to
low with a penalty of$100.00; Citation No. 6675558 from moderate to low negligence with a
penalty of$635.00; Citation No. 6675325 as assessed with a penalty of$127.00; Citati9n No.
6675562 from moderate to low negligence with a penalty of $100.00; Citation No. 6675832 from
moderate to low negligence with a penalty of$426.00; Citation No. 6675833 from moderate to
low negligence with a penalty of$100.00; Citation No. 6675834 as assessed with a penalty of
$224.00; Citation No. 6675835 as assessed with a penalty of $499.00; Citation No. 6675838
from 10 persons affected to 1 and from moderate to low negligence with a penalty of$100.00;
Citation No. 6675842 from high to moderate negligence with a penalty of$500.00; Citation No.
6675848 from fatal to no lost workdays with a penalty of $100.00; Citation No. 6675850 from
fatal to no lost workdays with a penalty of $100.00; Citation No. 6675277 as assessed with a
penalty of $540.00; Citation No. 6675736 from 13 persons affected to 1 with a penalty of
$128.00; Citation No. 6675280 from reasonably likely to unlikely with a penalty of $109.00;
Citation No. 6675416 from high to moderate negligence with a penalty of$207.00; Citation No.
9942564 from high to moderate negligence with a penalty of$1,530.00; Citation No. 6675744
from fatal to no lost workdays with a penalty of$100.00; Citation No. 6675286 from fatal to
permanently disabling with a penalty of$100.00; Citation No. 6675288 from 4 to 1 person
affected with a penalty of $285.00; Citation No. 6675748 as assessed with a penaltyof$499.00;
Citation No.6675750 from 12 to 1 person affected with a penalty of$128.00; Citation No.
6675294 from high to moderate negligence with a penalty of$100.00; Citation No. 7493284
from reasonably likely to unlikely with a penaltyof$309.00; Citation No. 6675903 from fatal to
33 FMSHRC Page 455

permanently disabling with a penalty of $191.00; Citation No. 6675453 from permanently
disabling to lost workdays or restricted duty with a penalty of$163.00; Citation No. 6675906
from fatal to lost workdays or restricted duty and from 20 to 1 person affected with a penalty of
$425.00; Citation No. 6675457 as assessed with a penalty of$190.00; Citation No. 6675459
from permanently disabling to lost workdays or restricted duty with a penalty of $634.00;
Citation No. 6675909 from high to moderate negligence with a penalty of$1,795.00; and,
Citation No. 6675910 from high to moderate negligence with a penalty of$127.00. The total
penalties agreed upon by the parties are $14,641.00.
I accept the stipulations by the parties and the proposed modifications and penalties on
the settled citations as being appropriate to this operator's size, ability to pay, history of
violations, degree of negligence, seriousness of the violation and good faith abatement of the
condition.

As to the citations adjudicated at the hearing, I assess the following penalties:
Citation No. 6675539: I assess a penalty of $687.00 as proposed by the Secretary for the
reasons set forth above.
Citation No. 6675540: I assess a penalty of $3,689.00 as proposed by the Secretary for
the reasons set forth above.
Citation No. 6675541: I assess a penalty of $3,689.00 as proposed by the Secretary for
the reasons set forth above.
Citation No. 6675847: I assess a penalty of$634.00 as proposed by the Secretary for the
reasons set forth above.
Citation No. 7493279: I assess a penalty of$634.00 based upon the fact that this citation
is for a violation of the same standard as in citations nos.'6675847 and 7493296 with the same
gravity and degree of negligence. The penalty, therefore, should be the same in all three
violations and I find based upon the gravity and negligence, this penalty is appropriate.
Citation No. 7493286: I assess a penalty of $634.00 as proposed by the Secretary for the
reasons set forth above.
Citation No. 6675287: I assess a penalty of $207.00 based upon my finding that this
·
violation was not significant and substantial.
Citation No. 6675290: I assess a penalty of $207 .00 as proposed by the Secretary for the
·
reasons set forth above.
Citation No. 6675297: I assess a penalty of $207.00 based upon my finding that this
violation was not significant and substantial.
Citation No. 6675836: I assess a penalty of $3,405.00 as proposed by the Secretary for
the reasons set forth above.
33 FMSHRC Page 456

Citation No. 6675278: I assess a penalty of $1203.00 as proposed by the Secretary for the
reasons set forth above.
Citation No. 6675733: I assess a penalty of $1304.0.0 as proposed by the Secretary for the
reasons set forth above.
Citation No. 6675454: I assess a penalty of $3500.00 based upon my finding the degree
of negligence is high rather than moderate, and the gravity is fatal rather than permanently
disabling as set forth above.
Citation No. 6675284: I assess a penalty of $634.00 as proposed by the Secretary for the
reasons set forth above.
Citation No. 6675296: I assess a penalty of $897.00 as proposed by the Secretary for the
reasons set forth above.
Citation No. 6675299: I assess a penalty of$897.00 based upon the fact that the
circumstances surrounding the violation were identical to .that involved in citation no. 6675296. I
find based upon the degree of negligence and the gravity of the hazard the penalty is appropriate
as set forth above.

A total of$ 22,428 is assessed for the violations heard and decided herein. The total
penalty for the four dockets (Lake 2009-418, Lake 2009-419, Lake 2009-494 and Lake 2009542) is $37,069,

ID.ORDER
Centre Crown Mining, LLC. is ORDERED to pay the Secretary of Labor the sum of
$37,069.00 within 30days of the date of this decision. 6

~~-.
Rae

·Priscilla M.
·Administrative Law Judge

6

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.

33 FMSHRC Page 457

Distribution:
Natalie Lien, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800,
Denver, CO 80202-5708
Hershiel Hayden, President, Centre Crown Mining, LLC, 524 Brooktree Rd., Knoxville, TN
37919

33 FMSHRC Page 458

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 Hf' STREET, SUITE 443
DENVER, CO 80202-2500
303-844-3577/FAX 303-844-5268

February 15, 2011
CNIL PENALTY PROCEEDING

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

Docket No. LAKE 2008-641-M
A.C. No. 12-00066-158510

v.
Essroc Cement
ESSROC CEMENT CORPORATION,
Respondent

DECISION
Appearances:

Linda M. Hastings, Esq., Office of the Solicitor; U.S. Department of
Labor, Cleveland, Ohio, for Petitioner;·
C. Gregory Ruffennach, Esq., Washington, DC, for Respondent.

Before:

Judge Manning

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration (''MSHA"), against Essroc
Cement Corporation ("Essroc") pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The parties introduced
testimony and documentary evidence at a hearing held in Louisville, Kentucky, and filed posthearing briefs.
Essroc operates a cement plant in Clark County, Indiana. This facility employed an
average of206 people in 2008. The case involves seven citations issued under section 104(a) of
the Mine Act. The Secretary proposes a total civil penalty of $16,021 in this case.

I. DISCUSSION WITH FINDINGS OF FACT · ·
CONCLUSIONS OF LAW
A. Citation No. 6411412
On June 11, 2008, MSHA Inspector Kenneth Diez issued Citation No. 6411412 under
section 104(a) of the Mine Act alleging a violation of30 C.F.R. § 56.6101(a) as follows:
An accumulation of combustible material was found within fifty
feet of the explosive material storage facility. Several large pieces
of plywood were [lying] on the ground next to ANFO Trailer. The

33 FMSHRC Page 459

trailer is in a remote area of the mine site and an ignition source
was not present making an accident unlikely. · Should an ignition
source be introduced into the area it may result in burns and/or
smoke inhalation injuries to miners in the area.
(Ex. G,. 1)~ The inspector determined that an injury was unlikely but that if an injury did occur it
would result in lost workdays or restricted duty. He determined that the violation was not of a
significant and substantial nature ("S&S") and that the company's negligence was moderate.
Section 56.6101(a) provides that "[a]reas surrounding storage facilities for explosive material
shall be clear of rubbish ... for 25 feet in all directions .... " The Secretary proposes a penalty
of $362.00 for this citation.
Inspector Diez testified that he issued the citation because cardboard trash and plywood
were lying near a trailer used for storing explosive materials. (Tr. 17, 18). He did not believe an
accident was likely because the trailer was located in a remote location and there was no ignition
source nearby. (Tr. 19). He issued the citation because, in the event of a fire in the area,
employees could suffer smoke inhalation injuries or burns. Id. He determined that the
company's negligence was moderate because the condition was open and obvious to anyone
making a workplace examination. (Tr. 20) The inspector testified that at the time of the MSHA
inspection Ronny Mull, the quarry foreman, did not indicate any mitigating factors were present.
Id.
David Johnson, quarry mobile equipment superintendent, testified for Essroc. He
testified that employees of Orica Explosives deliver the trailers used for storing explosive
materials. {Tr. 157). When new explosives are needed, Essroc orders a new trailer from Orica.
Id. Orica delivers the explosives in a trailer and takes·back the empty trailer. (Tr. 157-58).
Based on a conversation with Mull, it was Johnson's understanding that, on the day the citation
was issued,, Orica's employees left material from the empty trailer near the new trailer. (Tr. 158).
He also stated that the plant's blaster was busy at the time, but intended to pick up the trash at a
later time. Id.
The Secretary argues that "[t]he blaster was clearly aware of the violation at the time, but
chose to leave the condition and 'come back later.'" {Tr. 158; Sec'y Br. 2). Essroc requests the
citation be modified to indicate no likelihood of injury and no negligence. {Essroc Br. 2). Essroc
argues that the alleged violation did not present any danger to miners because "an ignition source
was not present making an accident unlikely." (Ex. G-1 ). Essroc also. argues it was not negligent
in allowing the condition to exist. {Essroc Br. 2). It states that the operator proved that
employees of an independent contractor created the condition while Essroc's area supervisor was
occupied with other work. Id. It relies on Southern Ohio Coal Co., 4 FMSHRC 1459 (Aug.
1982). In that case, the Commission held that negligence ofrank-and-file non-supervisory
employees cannot be imputed to the operator for penalty assessment purposes. See Id. at 1464.
Essroc maintains that the first time anyone from the company actually observed the cited
condition was during the MSHA inspection. (Essroc Br. 2).

33 FMSHRC Page 460

In Southern Ohio Coal, the Commission also held "[i]t is well-settled that underthe Mine
Act, an operator is liable without fault for violations of the Act and mandatory standards
committed by its employees." Id. at 1462; e.g., El Paso Rock Quarries, Inc., 3 FMSHRC 35, 3839 (Jan. 1981). Furthermore, the Court of Appeals for the Fourth Circuit has affirmed that coalmining companies can be held responsible for violations of construction contractors. Bituminous
Coal Operators' Ass'n, 547 F.2d 240, 246-47 (1977). The Commission explicitlyreaffimied the
decision in Republic Steel Corp., 1 FMSHRC 5, 9 (Apr. 1979).
I find that Essroc is liable for the violation. I also find, however, that Essroc's negligence
is low. It did not create the condition and it was in the process of taking steps to correct it. I also
find that the record establishes that the violation did not create a serious safety hazard. A penalty
of$100.00 is appropriate for this violation.

B. Citation No. 6411414
On June 11, 2008, MSHA Inspector Diez issued Citation No. 6411414 under section
104(a) of the Mine act alleging a violation of30 C.F.R. § 56.11012 as follows:
The opening on the south side of the clay apron was not provided
any railings, barriers or covers. The opening in the walking surface
is located between the drive unit and conveyor structure and is
approximately four feet in length and three feet in width: The
location of the opening would make an accident unlikely. Should a
miner fall in or step into the opening it may result in lacerations,
contusions and/or :fracture bone injuries.
(Ex. G-2). ·The inspector determined that an injury was unlikely and that if an injury did occur it
would result in lost workdays or restricted duties. He determined that the violation was not S&S
and that the company's negligence was low. Section 56.11012 provides that "[o]penings above,
below, or near travelways through which persons or materials may fall shall be protected by
railings, barriers, or covers." The Secretary proposes a penalty of $162.00 for this citation.
Inspector Diez testified that the cited area was on the backside of the clay apron and
provided easy and open access for employees. (Tr. 22). The opening was between the clay apron
and an equipment guard "with some depth." Id. He stated that an injury was unlikely because he
did not see any need for an employee to be in the cited area unless the equipment needed
maintenance. (Tr. 24, 25). He also found the company's negligence to be low because the
condition's location was such that there was a good possibility someone making a workplace
examination would not see it. Id.
On cross-examination, Inspector Diez testified that MSHA does not have official criteria
for determining "near" or "barriers" as used in the relevant standard. (Tr. 68). He also testified

33 FMSHRC Page 461

that, based on the condition's obviousness, it is reasonable to believe anotherMSHA inspector
would have observed it.
Mark Teny, a maintenance worker and miners' representative for Essroc, testified that th
cited area is not easy to access. (Tr. 106). In order to do so, a worker would have to fit betw~
a six to eight inch opening. Id. He stated that he has done maintenance work in the cited area
and safety precautions, such as placing a board over the hole or using a tie,..off, are tak~ to
prevent an accident. (Tr. 106). However, he could not state with certainty that every miner
follows the proper procedure for working in this area. (Tr. 111 ). Mr. Terry testified that no
previous MSHA inspectors have indicated there are insufficient barriers around the hole. (Tr.
107).
Mr. Johnson testified that, based on the measurements he took, he believes there is an
adequate barrier separating the walkway from the cited condition. (Tr, 146). A 48.:.inch-tall
guard, a 34-inch-high motor, and a 2-foot-square concrete column protect the hole. (Tr. 146; Ex.
R-2, R-3). Essroc requests that the citation be vacated, or in the alternative that the findings be
modified to indicate no likelihood ofinjury and no negligence. (EssrocBr. 3). Essroc argues the
condition was not a violation of30 C.F.R. § 56.11012 because MSHA failed to prove the cited
opening was near a travelway. Id. The term "travelway" is defined as "a passage, walk or way
regularly used and designated for persons to go from one place to another." 30 C.F.R. § 56.2.
Essroc relies on Alan Lee Good dlb/a Good Construction, 23 FMSHRC 995, 999-1000 (Sept.
200 I) to dispute MSHA' s conclusion that prior access for maintenance purposes establishes the
area as a travelway. (Essroc Br. 4). It also argues that, in light of past non,-enforcement and the
ambiguity of the words "near" and "barriers" in the cited standard, MSHA's attempted
enforcement has denied Essroc of constitutionally mandated fair notice as articulated in Good
Construction. (Essroc Br. 4).
Alternati".'dy, if the cited area is found to be a travelway, Essroc argues that the alleged
violation did not present any danger to miners and it was not negligent in allowing the condition
to exist. (Essroc Br. 5) It notes Inspector Diez's statement that "the location of the opening
would make an accident unlikely." (Ex._G-2; Essroc Br. 5). Furthermore, because no previous
MSHA inspector has indicated the area in question poses a problem, Essroc maintains it was not
negligent in allowing the condition to exist. (Essroc Br. 5).
The Secretary defines. ''travelway'' as a "passage, walk, or way regularly used and
designated for persons to go from one place to another." 30 C.F.R. § 56.2. When determining
whether an area qualifies as a travelway under the standard, the Commission has held that "the
relevant question is whether the areas in question were used, or intended to be used, for
walking." Good Construction, 23 FMSHRC at I 000. In overturning the judge's decision, the
Commission held that "[t]he inference that the areas were of sufficient size to permit actual
'walking' does not answer that question." Id. When analyzing this issue the "key phrase ... is

33 FMSHRC Page 462

'regularly used.'" APAC-Mississippi, Inc., 26 FMSHRC 811, 812 (Oct. 2004) (ALJ). The
weight of the evidence must establish the area is regularly used and designated for persons to go
from one place to another. See id. Testimony from workers about the frequency and purpose of
use of the area is given strong weight when analyzing this issue. See, e.g., Oil-Dri Production
Company, 32 FMSHRC 1761, 1762-63 (Nov. 2010) (ALJ); Beco Construction Co., 23 FMSHRC
1182, 1201(Oct.2001) (AU).
I find that the record in this case does not indicate that the cited area was regularly used or
designated as a passage for employees to go from one place to another. It was not shown that
employees did not walk by the cited area on a regular basis. As I recently held in Lehigh
Southwest Cement Co., 33 FMSHRC _,slip op. at 15, No. WEST 2009-22-M (Feb. 1, 2011),
the definition of "travelway'' is rather narrow and the Secretary must establish that the "lwalk,
way, or area [is] regularly used and designated for persons to go from one place to another." The
Secretary has failed to establish that the cited area is a travelway. Consequently, the citation is
vacated.

C. Citation No. 6411417
On June 16, 2008, MSHA Inspector Diez issued Citation No. 6411417 under section
104(a) of the Mine Act alleging a violation of30 C.F.R. § 56.4104(a) as follows:
The containers located on the Triple Gate Floor had an excessive
accumulation of oil leakage. Two of the containment vessels are
approximately 24" X 24" and the third is 30" wide and 48 .. long.
The containers had from one inch to six inches of oil present at the
time of inspection. Waste liquids should not accumulate in
quantities that could create a fire hazard under the standard cited.
Any leakage or spillage is to be removed in a timely manner under
56.4102. The area appeared to be void of ignition sources at the
time, a warning sign was not posted but a fire extinguisher was
provided making an accident unlikely. Should an ignition source
be introduced a miner may receive burns and/or smoke inhalation
injuries.
(Ex. G-3). The inspector determined that an injury was unlikely but that if an injury did occur it
would result in lost workdays or restricted duty. He determined that the violation was not S&S
and that the company's negligence was moderate. Section 56.4104(a) provides that "[w]aste
materials, including liquids, shall not accumulate in quantities that could create a fire hazard."
The Secretary proposes a penalty of $362.00 for this citation.
Inspector Diez testified that there were two containers placed under equipment for the
purpose of collecting leaking oil. (Tr. 27). He stated that there was an accumulation of oil that
was between one and six inches deep in the containers at the time of inspection. (Tr. 28). The

33 FMSHRC Page 463

inspector further testified that the depth of the oil was the reason for issuing the citation. (Tr.
31 ). He stated that operators typically have procedures for removing such oil, and this was not
being done often enough. (Tr. 32). He also testified that an injury was unlikely due to the lack
of an ignition source and high flashpoint of the oil, making it difficult to ignite. (Tr. 28). The
inspector believes that, if the oil were ignited,.a miner tryingto fight the fire might suffer smoke
inhalation injuries or burns, likely only affecting one miner. (Tr. 29). The inspector determined
that the company's negligence was moderate because anyone making a workplace inspection
should have seen the.condition. Id.
On cross-examination, Inspector Diez testified that there was no regulation preventing an
operator from catching hydraulic fluid in basins. (Tr. 71). He stated build-up of hydraulic fluid
presents a fire hazard when it becomes excessive; however, MSHA does not have criteria for
inspectors to use to determine if fluid build-up has become excessive. (Tr. 72). Rather, it is a
subjective determination made on a case-by-case basis. (Tr. 71). The inspector was not able to
articulate how a larger accumulation of fluid presents a more significant hazard. (Tr. 73).

Mr. Terry testified that an oiler should inspect and, if needed, empty the cited basins
every first shift. (Tr. 104, 105). He testified that previous MSHA inspectors have not indicated
the cited area posed a fire hazard. (Tr. 105). However, Mr. Terry testified that the condition in
the containers during previous inspections may have varied from the condition during this.
inspection. (Tr. 111).
Mr. Johnson testified that the Triple Gate is a hydraulically operated system that is not
perfectly sealed. (Tr. 151 ). This causes hydraulic fluid from the pillow block bearings to leak
from the unit. (Tr. 151 ). Mr. Johnson stated that using basins is probably the best practice to
catch the leaking material, as opposed to letting it run onto and be absorbed by the floor. (Tr.
151). This technique is standard industry practice, according to Mr. Johnson. (Tr. 152). The
hydraulic f1uid's Material Safety Data Sheet ("MSDS") indicates a flash point of 392 degrees
Fahrenheit. (Tr. 153; Ex. R-5). Mr. Johnson does not believe the depth of fluid in the basin is
relevant when assessing potential fire hazard. (Tr. 154).
The Secretary distinguishes the case at bar from Tide Creek Rock, Inc., 18 FMSHRC 390,
415-16 (Mar. 1996) (AU), where a citation for a violation of30 C.F.R. § 56.4104(a) was
vacated. (Sec'y Br. 4). In Tide Creek, there was less than two inches of accumulation of motor
oil in a container under an oil drum to catch drips or spills. Id. at 415-16. She maintains this
case is distinguishable because the vessels here were placed under equipment to catch leaking
liquid rather than drips or spills. Id.
Essroc requests that the citation be vacated or, in the alternative, the findings be modified.
to indicate no likelihood of injury and no negligence. (Essroc Br. 5, 6). It relies on Tide Creek to
establish the fluid in the containment vessels did not present a fire hazard in violation of 30
C.F.R. § 56.4104(a). (Essroc Br. 6). At the time of inspection, an ignition source was not
present, and the inspector thought the introduction·of one was "extremely unlikely." (Ex. G-3;

33 FMSHRC Page 464

Tr. 73). Essroc also notes the inspector stated "I don't see really a particular hazard being
involved here." (Essroc Br. 6; Tr. 73). Essroc avers that the difference between the fluid's flash
point, i.e. 392 degrees Fahrenheit, and the fluid's ambient temperature, i.e. 110 degrees
Fahrenheit, "presented no potential for combustion." (Essroc Br. 6).
Essroc also requests that the citation be vacated because the safety standard is so vague
that it denies mine operators notice of its requirements. (Essroc Br. 6). Essroc believes this
because the practice of using containers to catch hydraulic leaks is not specifically prohibited by
MSHA standards, the standard is ambiguous as to what "quantities" ofliquid are prohibited,
there are no guidelines for determining what quantities are hazardous, and no other MSHA
inspectors have determined the use of containment vessels in the area to be a citable hazard.
(Essroc Br. 6, 7).
It is well established that 1the Secretary is not required to prove that a violation of a
safety standard 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). Section
56.4104(a), however, specifically requires that that Secretary establish a safety hazard. That
standard provides that liquids "shall not accumulate in quantities that could create a fire hazard."
(emphasis added). The.question here is whether the Secretary established that the accumulation
of hydraulic fluid described in this case could create a fire hazard.
I find that the Secretary did not meet the burden of establishing that the condition created
a fire hazard. The flashpoint of hydraulic fluid is quite high and there were no ignition sources in
the area. A spark or other similar event would be insufficient to ignite the fluid. The Secretary's
use of the word "could" in the standard broadens its scope somewhat, but the standard cannot
reasonably be interpreted so broadly that any liquid in any quantity would qualify. Without a
realistic possibility of a fire hazard, there is no violation. This citation is vacated.

D. Citation No. 6411419
On June 16, 2008; MSHA Inspector Diez issued Citation No. 6411419 under section
104(a) of the Mine Act alleging a violation of30 C.F.R. § 56.12032 as follows:

The door on the 480-volt electrical box was left open and
unattended on the portable RC161 Sullair TS-20 Air Compressor.
The unit was positioned outside the building housing the
Sidewinder Pumps. The unit was energized and the wiring, parts
33 FMSHRC Page 465

and connection points were exposed [to] possible contact.
Footprints were visible in the dust along the compressor and box
area at the time of inspection. Should a miner contact the
energized parts it may result in a fatal electrical shock.
(Ex. G-4). The inspector determined that an injury was reasonably likely and that if an injury did
occur it would be fatal. He determined that the violation was S&S and that the company's
negligence was moderate. Section 56.12032 provides that "[i]nspection and cover plates on
electrical equipment and junction boxes shall be kept in place at all times except during testing 01
repairs." The Secretary proposes a penalty of $5,961.00 for this citation.
Inspector Diez testified that he observed an energized electrical box with an open door.
(Tr. 36). The box was in a room housing "side winder pumps." (Tr. 35). The inspector
observed that workers traveled in and out of this room, making an accident reasonably likely.
(Tr. 37, 3 8). He testified that the box was at face level, with nothing in front of it, exposing any
worker in the area to a potentially fatal shock. (Tr. 29, 40).
On cross-examination, the inspector testified that the footprints in front of the box could
have been from a miner or contractor performing repairs on the box, but he was not certain. (Tr.
70). On reexamination, Inspector Diez testified that any repairs to the box would need to be done
when the box was de-energized. (Tr. 81). He indicated that once the box was energized, no
repairs could be done. Id.
Mr.·Heathcock testified that there was a serviceman within eyesight of the condition at
the time the citation was issued. (Tr. 90). He believes the serviceman was working on a rental
compressor that is powered by the open electrical box. Id. If the serviceman was working on
this piece of equipment, he would need to access the cited box. Id. However, Heathcock could
not conclusively state that the serviceman had finished.his work at the time the citation was .
issued. (Tr: 93). Although trained and authorized electrical personnel are allowed to work on
energized equipment with the appropriate tools, Mr. Heathcock was not sure if this particular
serviceman was so authorized. (Tr. 93, 94).
Mr. Terry also testified that there was a repairman in the area of the open box who had
been working on the box. (Tr. 97). The plant has a rule that prevents workers other than
electricians from working with these types of electrical boxes. (Tr. 98). Mr. Terry testified that
it was unlikely any miner would access or interface with this box unless the worker was an
electrician specifically asked to do so. He also testified that he does not recall seeing any
company employees in the area at the time. (Tr. 99).

·Mr. Johnson testified that an employee of a contractor was diagnosing and repairing a
fault in the compressor that caused the unit to shut down. (Tr. 149; Ex. R-4). Mr. Johnson was
not present at the time the citation was issued. (Tr. 163). His knowledge of the condition is

33 FMSHRC Page 466

based on conversations with Mr. Heathcock and Mr. Terry, as well as reading the invoice. (Tr.
163; Ex. R-4).
The Secretary argues that a discrete safety hazard was created by this violation and it was
reasonably likely a worker passing by would be seriously injured. (Sec'y Br. 6). She states that
none of the witnesses presented by Essroc had first hand knowledge of what was done on the
Sullair equipment, who opened the electrical box, or why it was open. (Sec'y Br. 6).
Essroc denies that the cited condition constituted a violation of 30 C.F.R. § 56.12032.
Essroc requests that the citation be vacated or, in the alternative, the findings be modified to
indicate no likelihood of injury and no negligence. (Essroc Br. 7). It argues the evidence
presented establishes the electrical box was open during a repair, which is an exception provided
for in the safety standard. (Essroc Br. 8; Tr. 90, 97). Essroc contends the service technician was
not negligent in leaving the box open while in the area working on the equipment because the
cited safety standard does not specify a time during repairs that an electrical box must be closed.
(Essroc Br. 9; 30 C.F.R. § 56.12032). Furthermore, Essroc notes thateven if the serviceman was
negligent, his negligence is not attributable to it as a rank and file employee of an independent
contractor. (Essroc Br. 9).
Essroc also denies that the condition was S&S, and argues MSHA did not prove there
was a "reasonable likelihood" that the hazard contributed to will result in an injury or illness of a
reasonably serious nature. (Essroc Br. 8); National Gypsum Co., 3 FMSHRC 822, 825 (Apr.
1981); see, e.g., Richard E. Seiffert Resources, 23 FMSHRC 426, 431(Apr.2001) (ALJ)
(holding an open 480 volt panel box not a S&S violation)). Essroc supports this argumentby
stating the condition was short lived, MSHA did not establish any potential exposure to the open
box, and MSHA did not prove the possibility of contact with energized parts. (Essroc Br. 9).
The Commission analyzes S&S issues under a four-part test. .Mathies Coal Co., 6
FMSHRC 1, 3-4 (Jan. 1984). 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 likelihood that the injury in question will be of a reasonably serious nature. Id.
Whether a particular violation is S&S depends on the particular facts surrounding the violation.
Cement Division, National Gypsum, 3 FMSHRC 822, 825 (Apr. 1981 ).
lfind that the Secretary established a violation of the standard. There was no showing
that it was necessary for the electrical box to be left open while a compressor was being repaired.
I find that the violation was not S&S because it was not reasonably likely that the hazard
contributed to by the violation would result in an injury. Although I credit the inspector's
testimony that employees can walk through the area, there was no showing that it was reasonably
likely that anyone would come in contact with live electrical components. The footprints could
have easily been made by the contractor performing the electrical work. Assuming continued
mining operations, the door would have been closed within a short period of time. The violation

33 FMSHRC Page 467

did create a discrete safety hazard, so it was moderately serious. I also find that Essroc's
negligence was low. The violation was created by an employee of an independent contractor. A
penalty of $600 is appropriate.

E. Citation No. 6411424
On June 17, 2008, MSHA Inspector Diez issued Citation No. 6411424 under section
104(a) of the Mine Act alleging a violation of30 C.F.R. § 56.20003(a) as follows:
The passageway going along the North Reclaim Clinker Conveyor
was not being maintained in a clean and orderly condition. The
walkway on the west side was covered with piled hardened
material, loose large chucks and air hose. The walking surface
cited is approximately three feet in width and fifty feet in length.
The three steps midway on·the walkway are covered with an
approximate four inches of hardened material. Miners are in the
area regularly and were present at the time of inspection. Miners
regularly travel the area for maintenance, repair, cleaning and
examination. Should a miner slip, trip and fall it may result in
contusions, lacerations, and/or fractured bones.
(Ex. G-5). The inspector determined an injury was reasonably likely and that if an injury did
occur•it would result in lost workdays or restricted .duty. He determined that the violation was
S&Sind that the company's negligence was moderate. Seetion 56.20003(a) provides that
..[w]orkplaces, passageways, storerooms~ and service rooms shall be kept clean and orderly." The
Secretary proposes a penalty of $6,458.00 for this .citation.
Insp~ctor Diez testified that he issued the citation because hoses and chunks of material
were lying in the walkway along the North Reclaim Clinker Conveyor, creating an irregular
walking surface. {Tr. 43, 44). He testified that he observed build-up of hardened material four
inches thick and some chunks of material the size of a football in the walkway. (Tr.· 47, 48).
Because it is a regularly used travel way, he determined an accident was reasonably likely. {Tr.
49).

On cross-examination, the inspector testified that he did not know how long it would take
for four inches of material to build up in the walkway. (Tr. 73). The inspector revealed in his
testimony that the football-sized chunks of material could have been created through continuing
operations in the area, including clean-up of the walkway~ (Tr. 75).
Mr. Terry testified that a worker could use this walkway to access the head wheel or to
inspect the conveyor belt. (Tr. 100). However, he stated that if he were doing an inspection on
the head wheel he would not use the cited walkway. ld. Mr. Terry thought it was more than
likely the material came from a feed shoot above the passagew~y. (Tr. 100, I 01 ). He testified

33 FMSHRC Page 468

that the build-up of material would take two or three days to occur and the chunks of material
could have accumulated in a short period of time ifthere was ahig enough spill. (Tr. 101). Mr.
Terry further stated that the spilled material hardens quickly in rainy weather. Unpredictable
accumulation and rainy weather can combine to quickly recreate a condition that had recently
been cleaned up. (Tr. 114). It is Essroc's policy that workers should not walk through piles of
material, and Mr. Terry testified that he personally would not have done so if he had observed a
similar condition. (Tr. 101). Typically, the labor crew is responsible for cleaning conditions
such as this. (Tr. 102). ·However, if maintenance personnel needed to access the walkway, they
would be responsible for cleaning the condition. Mr. Terry testified that it would likely take a
labor crew one and a half to two days to clean the cited condition. (Tr. 102). He testified that
clean-up in this area had begun and he was unsure why it had stopped. (Tr. 114).
Travis Hostetler, the hourly lead man for the labor crew at Essroc, testified that a clean-up
crew was scheduled to work in the North Reclaim area on the days of June 16, 17, and 18; (Tr.
125). Based on photographs, it was obvious to him clean-up had begun in the area. (Tr. 125, Ex.
G-5). While he did not have a specific recollection of why the scheduled clean-up was not
completed, he testified that it was likely the crew had been pulled off this job to work on other
conditions cited by fuspector Diez. (Tr. 126, 127).
The Secretary argues that a discrete safety hazard was created by this violation because it
was reasonably likely a miner working in the area would be injured. (Sec'y Br. 8). She further
argues that it is reasonably likely any injuries suffered would be serious. Id. Therefore, she
argues, it is reasonably likely that the hazard contributed to by the violation would result in an
injury of a reasonably serious nature. Id.
Essroc argues that MSHA did not prove a violation of30 C.F.R. § 56.20003(a). (Essroc
Br. 10). Essroc requests the citation be vacated or, in the alternative, the :findings be modified to
indicate no likelihood of injury and no negligence. Id. Essroc maintains it met the requirements
of the safety standard by keeping the walkway "clean." (Essroc Br. 10; 30 C.F.R. § 56.20003(a)).
It states that the MSHA inspector misinterprets the standard as prohibiting spillage. (Essroc Br.
10, 11). Essroc relies on Placerville Industries, Inc:, 27 FMSHRC 115 (Feb. 2005) (ALJ) when
interpreting the cited standard to mandate cleaning. (Essroc Br. 10). Essroc argues that it was
issued the citation as clean-up was underway. Id. The inspector testified that cleaning is an
ongoing process, and the cited standard does not specify a time frame for initiating or completing
clean-up operations. (Essroc Br. 11; see Tr. 48). Based on these facts, Essroc believes its cleanup efforts were consistent with what a reasonably prudent mine operator would do. (Essroc Br.
11 ). Furthermore, Essroc believes it affirmatively defended the citation by providing
uncontroverted evidence the corridor would not be used as a "passageway" until the clean-up
process was complete. (Essroc Br. 11-12; Tr. 101-102, 129-130).
Essroc also denies that the condition was S&S, and argues MSHA did not prove there
was a "reasonable likelihood" that the hazard contributed to will result in an injury or illness of a
reasonably serious nature. (Essroc Br. 12). It notes MSHA presented no direct evidence of
33 FMSHRC Page 469

exposure to the cited condition. ·(Essroc Br; 13). Furthermore, the inspector conceded he was
uncertain whether he saw anyone in the general vicinity of the corridor before, during, or after th
condition was cited. Id. Although the "frequency of travel" was crucial to the inspector's gravi~
determination, Essroc argues this finding was based entirely on the inspector's speculation. Id.
Furthermore, Essroc maintains it effectively rebutted this inference with testimony that
"alternative" routes were available to access the conveyor and the cited condition was.not on the
normal route. (Essroc Br. 13; Tr. 100, 129-30).
Essroc also argues that it was not negligent in allowing the condition to exist. (Essroc Br
14). It notes that the inspector's negligence finding is based on his understanding that the
material accumulated "over a matter of time," but he was unable to estimate how long the
condition existed. (Essroc Br. 14; Tr. 48, 49). Because clean-up in the area had begun, and this
clean-up "took a back seat" to addressing other conditions of concern to the inspector, Essroc
maintains it was being "diligent," not negligent. (Essroc Br. 15).
I find that the Secretary established a violation of the safety standard. The passageway
was covered with material, as shown in the photographs taken by the inspector. (Ex. G-5). This
material created a stumbling and tripping hazard. Although the operator apparently was in the
process of cleaning up the material, the hazard existed at the time of the inspection. I find that
the Secretary did not establish that the violation was S&S, however. There was no showing that
it was reasonably likely that the hazard contributed to by the violation would cause an injury.
Specifically, it was not established that anyone had walked through the area or that anyone would
walk down the passageway. Mr. Terry testified that there were alternative routes to the head
wheel and the conveyor belt. (Tr. 100). I find that the Secretary did establish that miners were
exposed to the hazard. I find that Essroc's negligence was moderate. A penalty of$] ,000 is
appropriate.

F. Citation No. 6411426
On June 17, 2008, MSHA Inspector Diez issued Citation No. 6411426 under section
104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.11002 as follows:
Handrailing was not provided for the east end of the elevated
walkway. The walkway is located in the Core Building on· the
south end of the Burner Floor. The walkway is access for the #2
Kiln burner discharge end. The open area is at the right hand side
of the ladder. The area is approximately 40" X 40" and a fall of 4'
down to other structure. The tubing across the opening is
approximately 20" high off the walking surface. Miners access the
platform regularly for repair, maintenance and examination of
equipment. Should a miner fall from the area it may result in
lacerations, contusions and/or fractured bones.

33 FMSHRC Page 470

(Ex. G-6). The inspector determined that an injury was reasonably likely and that if an injury did
occur it would result in lost workdays or restricted duty. He determined the violation was S&S
and the company's negligence was moderate. Section 56.11002 provides that "[c]rossovers,
elevated walkways, elevated ramps, and stairways shall be of substantial construction provided
with handrails, and maintained in good condition. Where necessary, toeboards shall be
provided." The Secretary proposes a penalty of $1,412.00 for this citation.
Inspector Diez testified that there were inadequate handrails protecting an elevated
workspace, exposing workers to a four foot fall hazard. (Tr. 53, 57). The inspector determined
an accident was reasonably likely because workers make observations in the vicinity of the cited
condition. (Tr. 56). He stated the condition was S&S based on how frequent the workspace is
accessed. (Tr. 58). On cross-examination, Inspector Diez testified that§ 56.11002 would not
necessarily apply to the cited area. (Tr. 76). He also stated that there was no one working in the
cited area at the time the he observed the condition. (Tr. 77).

Mr. Terry testified that he could not recall any previous MSHA inspectors requiring a
handrail to be placed in the cited area. (Tr. 103). Mr. Johnson testified that the cited area is
visited very rarely for maintenance purposes. (Tr. 154). The area would generally be accessed
on a shutdown during maintenance up to four times per year. He stated that it is very hot up
there because it is immediately adjacent to the burner. Id.
The Secretary analogizes the case at bar to Carder Inc., 27 FMSHRC 839, 848-50 (Nov.
2005) (ALJ), based on the :frequency that miners accessed the cited area, i.e. two to four times
annually, and the purpose, i.e. observation. (Sec'y Br. 9). The Secretary notes that if miners
were to access the cited area for observation purposes, this would generally require some
movement forward and backward, making the area an elevated walkway. (Sec'y Br. 10).
The Secretary argues that a discrete safety hazard was created by this violation because it
was reasonably likely a miner working in the area would be injiJred. (Sec'y Br. 10). She argues
further that it is reasonably likely any injuries suffered would be serious. Id. Therefore, she
argues, it is reasonably likely that the hazard contributed to by the violation would result in an
injury of reasonably serious nature. Id.
Essroc requests that the citation be vacated or, in the alternative, the findings be modified
to indicate no likelihood of injury and no negligence. (Essroc Br. 16). It argues the cited area is
not covered by the safety standard because it is a "working area," not a ''walkway." (Essroc Br.
16).
Essroc also argues that the violation was not S&S and it was not negligent in allowing the
condition to exist. (Essroc Br. 16, 17). Although the inspector based his S&S determination on
"frequency'' of exposure, he did not testify how often the area was accessed. (Essroc Br. 16, Tr.
56). To the contrary, Essroc argues that the evidence it presented established the area was
accessed "very rarely," thus proving exposure to the condition was minimal. (Essroc Br. 16; Tr.
33 FMSHRC Page 471

155). Furthemiore, no previous MSHA inspector has cited the condition. (Essroc Br. 16; Tr.
103).
At trial, the Secretary moved to amend the cited standard from section 56.11002 to
section 56.11027. (Tr. 9-10). The former section dictates construction standards for elevated
walkways, elevated ramps, and stairways. The latter dictates construction standards for working
platforms. Counsel for the Secretary did not seek to amend the standard until the day of trial.
She also did not bring a copy of section 56.11027 with her to the trial. Instead, she asked that I
briefly recess the proceedings so that she could obtain a copy of that safety standard. I denied he1
that request. Although the Commission has held that, under certain circumstances, the Secretary
may seek to amend a citation to allege a violation of a different safety standard than that asserted
by the inspector, I find that, in this particular instance, the request was not timely made. More
importantly, if the Secretary moves to amend a citation to allege a violation of a different safety
standard on the day of the hearing, it is incumbent on her representative to have a copy of the
safety standard at issue to read into the record or for the court to review. The Secretary's motion
to amend is denied.
I find that the Secretary failed to establish the cited area· was a crossover, elevated
walkway, elevated ramp, or a stairway under section 56.11002. The photographs reveal that it is
questionable whether a handrail would provide any benefit in the area because of the presence of
tubing in the cited area. (Ex. G-6; Tr. 155-56). Consequently, the citation is vacated.

· G. Citation No. 6411439
On June 24, 2008, MSHA Inspector Diez issued Citation No. 6411439 under section
104(a) of the Mine Act alleging a violation of30 C.F.K § 56.14112(b) as follows:
The guard was not in place on the #1 Can Elevator drive unit
located atthe North Plant. The lack ofguarding left the moving
drive chain and sprockets expose[d] to possible contact. The unit
had been under repair and the guard was damaged. The unit was
started and in operation while the guard was being repaired in the
shop. Construction tape had been placed around the base of the
ladder to serve as a warning and it is a remote elevated location
making an accident unlikely. Should a miner contact the moving
machine parts it may result in disabling injuries to the hand and/or

arm.

(Ex. G- 7). The inspector determined that an injury was unlikely but that if an injury did occur it
would be p.ermanently disabling. He determined that the violation was not S&S and that the
company's negligence was moderate. Section 56.14l 12(b) provides that "[g]uards shall be
securely in place while machinery is being operated, except when testing or making adjustments

33 FMSHRC Page 472

which cannot be performed without removal of the guard." The Secretary proposes a penalty of
$1,304.00 for this citation.
Inspector Diez testified that the Number 1 Can Elevator Drive unit was in operation with
an unguarded moving drive train and sprocket. (Tr. 61, Ex. G-7). The inspector was informed
the guard was being repaired at the time. (Tr. 61 ). The inspector testified that an injury was
unlikely because the unit was located at the top of a building and the area was marked with
caution tape. (Tr. 63, Ex. G-7). On cross-examination, Inspector Diez stated that there was
caution tape at the base of the ladder leading up to the unguarded unit but this is not a sufficient
protection against injury. (Tr. 66). He also testified that he has routinely seen caution tape being
pulled down by workers on other inspections. (Tr. 80).
Mr. Terry testified that he saw caution tape on the ladder on the day of the inspection.
(Tr. 109). He further testified that he would not cross caution tape unless he was the one who put
it up and he was accessing the area to do a repair or if he had express permission from a
supervisor or whoever had tagged the area. (Tr. 109, 110).
Mr. Johnson testified that the guard was removed the day prior to the inspection to replace a broken chain. (Tr. 140). The broken chain had also damaged the guard, which had to
be taken into the shop for repair. Id. Because of the size of the guard, it had to be removed and
eventually replaced using a crane. (Tr. 141 ). Mr. Johnson does not contest the fact that the
machine was in operation on June 24 without the chain guard in place. (Tr. 161). He also
testified the taped-off ladder was the only way to access the cited condition. (Tr. 142).
The Secretary argues that placing warning tape at the bottom of the ladder is not a defense
to the violation because it is not a sufficient safety device to prohibit access to the hazard. (Sec'y
Br. 11 ). This argument is based on the fact MT. Terry testified warning tape means "to enter with
caution" and can be removed with permission from a supervisor who does not have knowledge as
to the hazard beyond the tape. (Sec'y Br. 11; Tr. 110, 111 ).
Essroc argues that the condition was not a violation of30 C.F.R. § 56.14112(b) and
disputes the gravity and negligence findings~ (Essroc Br. 17). Essroc requests the citation be
vacated or, in the alternative, the findings be modified to indicate no likelihood ofinjury and no
negligence. Id. It is Essroc's position that no guard was required under 30 C.F.R. § 56.14107.
Id. Section 56.14112 does not include a provision that establishes where guards are required.
Climax Molybdenum Company, 30 FMSHRC 886, 891 (Aug. 2008) (ALI). fustead, section
56.14107 sets forth the guarding requirements. Subpart (b) of section 57.14107 expressly
exempts "exposed moving parts [that] are at least seven feet away from walking or working
surfaces." 30 C.F.R. § 56.14107(b). Essroc argues that the cited area was between 15 and 35
feet above the nearest walking or working surface. (Essroc Br. 18-19; Tr. 66-67, 141-42). It
argues that the record establishes thatthe elevated platform at the top of the ladder was not a
''walking or working surface." (Essroc Br. 19).

33 FMSHRC Page 473

Alternatively, Essroc argues it took appropriate precautions in accordance with 30 C.F .R
§ 56.20011. (Essroc Br. 17). Section 56.20011 requires an operator to limit access to an area
where "safety hazards exist" with a "barricade.'' See 30 C.F.R. § 56.20011. Essroc believes it
provided uncontroverted evidence that caution tape is an effective barricade. (Essroc Br. 20; Tr.
108-09, 130). Essroc notes MSHA's regulations provide a barricade can consist of any "materia
object, or objects that separates, keeps apart, or demarcates in a conspicuous manner such as
cones, a warning sign, or tape." 30 C.F.R. § 56.2 (emphasis added) (Essroc Br. 20).
Essroc's third alternative argument is that "attempted enforcement [in this case] is absurd
and contrary to fundamental principles of fair notice." (Essroc Br. 17). It argues that prohibitin~
an operator from using a barricade to temporarily prevent access to areas where. moving parts
hazards may exist would produce "an absurd result that the presiding judge must avoid." See
Rawl Sales & Processing Co., 23 FMSHRC 463, 471(May2001) (two Commissioners holding
that the plain language of a regulation cannot be enforced where it produces an absurd result); .
(Essroc Br. 21). Essroc argues MSHA's position is contrary to the purpose of 30 C.F.R. §
56.20011, which allows temporary barricades to protect persons from other, serious, hazardous
conditions while the conditions are being corrected. (Essroc Br. 21). In light of this, Essroc
argues that it is absurd for MSHA to argue a ladder cannot be taken out of service using caution
tape while repairs are underway. (Essroc Br. 22).
One of the key issues is whether the cited elevator drive unit was within seven feet of a
walking or working surface. Commission Judge Jerold Feldman faced a similar issue in Brown
Brothers Sand Co., 17 FMSHRC 578, 579-80 (Apr: 1995) (ALJ). In that case, a guard for the
head pulley at the top of a stacker conveyor was not securely in place. The head pulley had a
vertical height of about 43 feet above the ground. Judge Feldman determined that the citation
should be vacated. He relied, in part, on Thompson Brothers Coal Company, Inc., 6 FMSHRC
2094, 2097 (Sept. 1984), where the Commission held:
[T]he most logical construction of [a guarding] standard is that it
imports the concepts of reasonable possibility of contact and
injury, including contact stemming from inadvertent stumbling or
falling, momentary inattention, or ordinary human carelessness
. . . . Applying the test requires taking into consideration all.
relevant exposwe and iajl;lfy variables, e.g. accessibility of the
. machine parts, work areas, ingress and egress, work duties, and as
noted, the vagaries of human conduct. ·Under this approach,
citations for inadequate guarding will be resolved on a case-bycase basis.
The Secretary in Judge Feldman's case argued that there was a violation of section
56. l 4 l l 2(b) because there were no barriers or signs prohibiting employees from walking up to
the top of the stacker conveyor. Judge Feldman concluded that the walkway up the stacker
conveyor was used exclusively by employees who needed to maintain the herut pulley and ro11ers.

33 FMSHRC Page 474

As a consequence, he rejected the Secretary's arguments and concluded that the top of the stacker
conveyor was not within 7 feet of a walking or working surface.
The guard in this instance is quite large and requires a crane to move it. The guard was
removed so that it could be repaired. The chain drive was in use while the guard was being
repaired. For reasons similar to those expressed by Judge Feldman, I find that the unguarded
chain drive was more that seven feet from a walking or working surface. The small platform at
the top of ladder near the chain drive was accessed solely for the purpose of maintaining the
drive unit. The photographs taken by Inspector Diez clearly demonstrate that no employee would
ever go up the fixed ladder to that location for any reason other than to maintain the chain drive.
Essroc had installed caution tape across the bottom of the ladder to warn employees. I fmd that
this tape complied with the requirements of section 56.20011. Once the guard was repaired, the
equipment would have been shut down and locked out and, using a crane, the guard would have
been reattached to the drive. The Secretary did not establish a violation and the citation is
vacated.

III. APPROPRIATE CIVIL PENALTIES
Section 11 O(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. Essroc had about 106 paid violations at the plant during the 24 months
preceding the date of this inspection and 44 of these violations were classified as S&S. Essroc is
a medium-sized operator, but it is owned by a larger operator (Italcementi Group). The plant
employed about 206 people in 2008. The violations were abated in good faith. The penalties
assessed in this decision will not have an adverse effect on Essroc's ability to continue in
business. The gravity and negligence findings are set forth above.

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

30 C.F.R. §

Penalty

6411412
6411414
6411417
6411419
6411424
6411426
6411439

56.6101(a)
56.11012
56.4104(a)
56.12032
56.20003(a)
56.11002
56.14112(b)

$100.00
Vacated
Vacated
600.00
1,000.00
Vacated
Vacated

TOTAL PENALTY

$1,700.00

33 FMSHRC Page 475

For the reasons set forth above, the citations are AFFIRMED, MODIFIED, and
VACATED as set forth above. Essroc Cement Corporation is ORDERED TO PAY the
Secretary of Labor the sum of $1,700 within 30 days of the date of this decision. 1 Upon payment
of the penalty, these proceedings are DISMISSED.

Richard W. Manning
Administrative Law Judge

Distribution:

Linda M. Hastings, Esq., Office of the Solicitor, U.S. Department of Labor, 881 Federal Office
Building 1240 East Ninth Street, Cleveland, OH 44199 (Certified Mail)
C. Gregory Ruffennach, Esq., 1629 K Street, NW, Suite 300, Washington DC 20036 (Certified
Mail) .

1

Payment should be sent to the Mine Safety and Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
33 FMSHRC Page 476

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

February 16, 2011
DICKENSON-RUSSELL COAL CO., LLC., :
Contestant

CONTEST PROCEEDINGS
Docket No. VA 2009·44-R
Order No. 8157629; 10/06/2008

v.
Docket No. VA 2009-45-R
Citation No. 8157630; 10/06/2008

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

Cherokee Mine
Mine ID 44-06864
CIVJLPENALTYPROCEEDING

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

Docket No. VA 2009-137
A.C. No. 44-06864-170772

v.
DICKENSON-RUSSELL COAL CO., LLC., :
Respondent

Mine: Cherokee Mine

DECISION

Appearances: Benjamin D. Chaykin, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, on behalf of the Secretary of Labor;
' Cameron S. Bell, Esq., Penn, Stuart & Eskridge, Abingdon, Virginia, for DickensonRussell Coal Company, LLC.
Judge Zielinski

Before:

These cases are before me on Notices of Contest and a Petition for Assessment of Civil
Penalties filed pursuant to section 105 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815. The Petition alleges that Dickenson-Russell Coal Company, LLC, is liable for
three violations of the Secretary's Mandatory Safety Standards for Underground Coal Mines 1 and
proposes the imposition of civil penalties in the amount of$8,038.00. Two of the alleged violations
were settled, and a Decision Approving Partial Settlement was entered on November 8, 2010.
Remaining at issue are Dickenson-Russell's contest of Order No. 8157629, an imminent danger
order issued pursuant to section 107(a) of the Act, and one citation in the penalty case. A hearing

I

30 C.F.R. Part 75.
33 FMSHRC Page 477

was held in Abingdon, Virginia, and the parties filed briefs following receipt of the hearing
transcript. For the reasons set forth below, the imminent dariger order is affirmed. I also find the;
Dickenson-Russell committed the violation alleged in the citation and impose a civil penalty in tl
amount of $1,200.00.
Findings of Fact - Conclusions of Law
The facts are largely undisputed. Dickenson-Russell operates the Cherokee Mine, an
underground coal mine located in Dickenson County, Virginia. On October 6, 2008, Johnny L.
Asbury, an MSHA inspector and roof control specialist, went to the mine to continue a regular
quarterly inspection. He had issued a citation for a roof control violation in the travelway to the
2 Left section, and was going to check on abatement efforts and terminate the citation. He
traveled into the mine with Franklin Calo, a union representative, and Michael Stacy, a certified
mine foreman who conducted weekly airway examinations for Dickenson-Russell. They rode
into the mine on the main track and disembarked at a stub track serving the 2 Left section.
Supply cars and other tracked conveyances serving the 2 Left section were switched onto the stub
track. Rubber-tired vehicles were used.to travel from the stub track to the section. The main
track continued on to the East Main section, where a 12-person day-shift crew was working.
Stacy crawled through a low spot to get a rubber-tired vehicle. Asbury and Calo waited for Stacy
at the end of the stub track, near the intersection of the entry to the left of the track entry and the
crosscut just inby where the stub track branched off the main track.
While Asbury was waiting for Stacy, he heard popping and cracking sounds and observed
cracks developing in the crosscut roof. The cracks were one-half to three-quarters of an inch
wide and ran diagonally toward the track entry. Asbury was concerned, because if two or three
of them came together, then a block of rock between them could easily fall. He then noticed a
large slab of rock hanging over the track that was starting to ease down. The rock.was about
three feet w,ide by four feet long and was thin on one side, tapering up to about 6 to 12 inches
thick. There were "cutters," or crack runs, along the ribs of both pillars that ran all the way out
to the track entry. Timbers had been set in the crosscut alongside the pillar on the right as one
faced the track entry. The wedges on the tops of the timbers were "mashed flat," and the timbers
were starting to crack. Small pieces of rock were "dripping" around the edge of the pillars.
Asbury drew a diagram of the area as it existed prior to the installation of additional
supplemental roof support. Tr. 27-28; Ex. G-4.
· As depicted in Asbury's drawing, a rough version of which was recorded in his notes,
there were indicators of.roofcontrol problems in the vicinity of the affected area. Pillaring had
been done two breaks to the right of the track entry, which increased pressure on nearby pillars.
The roof in the intersection at the end of the stub track, where Asbury and Calo waited for Stacy,
had begun to sag, and had been supported with steel H-beams, cribs, steel jacks and cable bolts.
Asbury explained that rock continuously moves, and where support such as pillars have been
removed, pressure will develop on adjoining pillars. As a roof control specialist, he generally
attempts to ascertain where pressure will develop, or has developed, and tries to assure that

33 FMSHRC Page 478

appropriate roof support is provided. ·He had traveled through the intersection on his way to the
2 Left section four days earlier, and had not noticed any problems with roof support in the area.
He had not traveled through the track entry in the area where the rock settled down, because that
intersection was just inby the stub track for the 2 Left section.
When Stacy returned at approximately 10:05 a.m., Asbury issued an oral imminent
danger order pursuant to section 107(a) of the Act, and told Stacy that the area had to be
dangered-off and the track blocked to keep people out. The area subject to the order, essentially
from 60 feet outby the hanging rock to 60 feet inby the rock, is depicted on Asbury' s diagram.
Ex. G-4. In addition to the imminent danger order, Asbury issued a citation charging DickensonRussell with failure to properly support the mine roof.
Calo had seen the conditions developing while he was with Asbury. He departed to
secure warning tape to danger the area off. After warning tape had been hung at the approaches
to the area, Stacy called Michael Ohlson, the mine superintendent, and requested supplies to
install supplemental roof support. Stacy also called the belt examiner, who was working outby,
and told him about the rock hanging in the main track entry to make sure that he didn't attempt to
travel in that area. Supplemental roof support, consisting of cribs and steel jacks, was installed in
the track entry. A flat car was then backed under the hanging rock. It was pried down and
landed to one side of the car, almost flipping it over. 2 The rock was loaded onto the car and
removed from the area. The order was terminated and the citation was abated about 1:30 p.m.
Dickenson-Russell timely contested the imminent danger order and the civil penalty .
assessed for the roof control violation.
The Imminent Danger Order
Order No. 8157629 was issued pursuant to Section 107(a) of the Act, and required the
immediate withdrawal of miners from the area where the dangerous roof conditions existed, and
prohibited entry into that area until the conditions were abated. The "Condition and Practice"
section of the Order described the grounds for its issuance as follows:
At the mouth of the No. 2 Left Section, an imminent danger was present at
survey station No. 5348. An oral imminent danger order was issued at 10:05 AM.
The top was working at survey station No. 5348, that is located in the track and
belt entry, and had cracked and was flaking and the post and metal jacks that were
2

Dickenson-Russell contends that the rock was only partially, not directly, over the
track. The Secretary takes issue with Respondent's position, and argues that adverse inferences
should be drawn from Respondent's failure to preserve photographs and a sketch of the
conditions. There is no need to resolve that issue because the validity of the order and citation,
and the special findings of the citation, are unaffected by whether the rock was directly, or
partially over the track. The condition was extremely hazardous in either event.
33 FMSHRC Page 4 79

placed approx. 60 feet inby were broken and popping and cracking. Three cracks
were running across the entry, one approx. 1/4 in:ch wide and the others were
approx. 1/2 to3/4 of an inch wide. A large slab of rock was observed, approx. 3
feet wide by 4 and 112 feet long, and the rock was very slowly coming down from
the roof. The track way and belt line have to travel under this area, to get to the
East Mains, and a crew of approx. 11 men are located inby the area. All
approaches were dangered off to prevent entry into the area.
Ex. G-1.
Section 30) of the Act defines "imminent danger" as the "existence of any condition or
practice in a coal or other mine which could reasonably be expected to cause death or serious
physical hann before such condition or practice can be abated." 30 U.S.C. § 8020). Section
107(a) of the Act provides, iri pertinent part:
If, upon any inspection or investigation of a coal or other mine which is
subject to this Act, an authorized representative of the Secretary :finds'that an
imminent danger exists, such representative shall determine the extent of the area
of such mine throughout which the danger exists, and issue an order requiring the
operator of such mine to cause all persons, except those referred to in section
104(c), to be withdrawn from, and to be prohibited from entering, such area until
an authorized representative of the Secretary determines that such imminent
danger and the conditions or practices which caused such imminent danger no
longer exist.
30 U.S.C. § 817(a).
"Imminent danger orders permit an inspector to remove miners immediately from a
dangerous situation, without affording the operator the right of prior review, even where the mine
operator did not ereate the danger and where the danger does not violate the Mine Act or the
Secretary's regulations. This is an extraordinary power that is available only when the
'seriousness of the situation demands such immediate action."' Utah Power & Light Co.,
13 FMSHRC 1617, 1622 (Oct. 1991) ("Utah") (quoting from the legislative history of the
Federal Coal Mine Health and, Safety Act of 1969, the predecessor to the 1977 Act). An
imminent danger exists ''when the condition or practice observed could reasonably be expected
to cause death or serious physical hann to a miner if normal mining operations were permitted to
proceed in the area before the dangerous condition is eliminated." Wyoming Fuel Co.,
14 FMSHRC 1282, 1290 (Aug. 1992) (quoting from Rochester & Pittsburgh Coal Co.,
11FMSHRC2159, 2163 (Nov. 1989) ("R&P')). While the concept of imminent danger is not
limited to hazards that pose an immediate danger, "an inspector must 'find that the hazardous
condition has a reasonable potential to cause death or serious injury within a short period of
time."' Cumberland Coal Resources, LP, 28 FMSHRC 545, 555 (Aug. 2006) (quoting from
Utah, l3 FMSHRC at 1622). Inspectors must determine whether a hazard presents an imminent
danger without delay, and a finding of an·imminent danger must be supported "unless there is·
33 FMSHRC Page 480

evidence that [the inspector] had abused his discretion or authority." R&P, 11 FMSHRC
at 2164.
While an inspector has considerable discretion in determining whether an imminent
danger exists, that discretion is not without limits. An inspector must make a reasonable
investigation of the facts, under the circumstances, and must make his determination on the basis
of the facts known, or reasonably available to him. As the Commission explained in Island
Creek Coal Co., 15 FMSHRC 339, 346-347 (Mar. 1993):
While the crucial question in imminent danger cases is whether the
inspector abused his discretion or authority, the judge is not required to accept an
inspector's subjective ..perception" that an imminent danger existed. Rather, the
judge must evaluate whether, given the particular circumstances, it was reasonable
for the inspector to conclude that an imminent danger existed. The Secretary still
bears the burden of proving [her] case by a preponderance of the evidence.
Although an inspector is granted wide discretion because he must act quickly to
remove miners from a situation that he believes to be hazardous, the
reasonableness of an inspector's imminent danger finding is subject to subsequent
examination at the evidentiary hearing.
An inspector "abuses his discretion ... when he orders the immediate withdrawal of
miners under section 107(a) in circumstances where there is not an imminent threat to miners."
Utah, 13 FMSHRC at 1622-23.
The Secretary argues that the imminent danger order was properly issued because there
was an area of mine roof that was not adequately supported, including a large rock that was loose
and hanging over the track that miners routinely traveled. It appeared thatthe roof and/or rock
would fall at any moment and that multiple miners could be expected to travel through the area
and be exposed to the dangerous condition before it could be corrected. Asbury estimated that it
would take approximately one arid one-half hours to abate the condition, and that miners could
suffer serious injuries before the condition was corrected.
Dickenson Russell argues that there was no imminent danger because normal mining
operations were not permitted to proceed, i.e., that Stacy had the area dangered-off and warned
miners not to travel through it. It argues that Asbury issued the order based upon a series of
assumptions that were not likely to occur and,. in fact did not occur, including, that the condition
had not been observed, that the area had not been dangered-off, that employees would travel
through the area, and that employees would not observe the obvious conditions and avoid them.
Resp. Br. at 6. It further contends that, since Asbury couldn't say when, if ever, the rock would
have fallen, that the Secretary did not prove that an injury could have occurred within a short
period of time.
Respondent's arguments are misplaced. Asbury's determination that an imminent danger
existed was based upon facts, not assumptions. He personally observed an extremely hazardous
33 FMSHRC Page 481

condition, a significantly compromised mine roof and a large loose rock hanging over the main
track entry to the East Main section of the mine. Miners were permitted to travel through the
area and, in fact, routinely did so. While Asbury could not specify exactly when the rock, or any
other portion of the roof, would fall, it clearly could have fallen at any time. Miners could have
encountered the condition prior to its being corrected. Asbury had inspected the Cherokee mine
on four prior occasions. He was aware that a maintenance crew usually worked in the East Main
section until about 10:00 a.m., and that he hadn't encountered them departing. Twelve miners
worked the day shift in the East Main section and would have departed at approximately 2:30
p.m. In the interim, there was nothing to prevent a miner from traveling through the area to or
from the section. ·A belt man, a two-person supply crew, and a pump man could also have
traveled through the area while the condition existed. Brookfield mantrips, which do. not have
overhead protection, were used on the track entry. Miners traveling through the area could have
been struck by falling rock, could have collided with a fallen rock, or could have encountered
track damaged by a falling rock.
Respondent argues that miners were trained to observe obvious defects and would have
avoided any such problems. While that is possible, such an assumption cannot be made where
miners· safety is at stake. The argument is not relevant to the fact ofviolation, and is not a
defense to an S&S designation. As the Commission observed in Eagle Nest, Inc., 14 FMSHRC
1119 (July 1992), in holding that the exercise of caution is not an element in determining
whether a violation rises to the level ofS&S:·"While miners should, of course;.workcautiously,
that admonition does not lessen the responsibility of operators, under the Mine Act, to prevent
unsafe work conditions." 14 FMSHRC at 1123. The Commission has also consistently
emphasized that, in evaluating the risk of injury, the vagaries of human conduct cannot be
ignored. See, e.g., Thompson Bros. Coal Co., 6 FMSHRC 2094,2097 (Sept. 1984).
Respondent's argument that the dangering-off of the area precluded the possibility of the
condition C?using an injury to a miner is unavailing. Evert if Stacy had observed the conditions
first, and dangered the area off before Asbury saw it, an imminent danger order could have been
properly issued. In Cyprus Emerald Corp., 12 FMSHRC 911(May1990), the Commission
upheld the validity of an imminent danger order that had been issued four days after the operator
had dangered-off an area of adverse roof conditions and installed supplement roof support.3
Cyprus argued, as does Dickenson Russell, ''that no persons were exposed to the hazardous roof
conditions since it prohibited access to the area and that the nature of the cited roof conditions
could not reasonably have been expected to cause death or serious harm before they were
abated." Id. at 918. The Commission observed that "the operator acted appropriately in
dangering-off the area of bad roof and that no miners worked, traveled or were required to enter

3

In Cyprus Emerald, mine foremen observed hazardous roof conditions adjacent to the
last shield on a longwall face. They dangered the area off, and subsequently installed
supplemental roof support. Because the area remained hazardous, the danger tape was left in
place, while mining continued. Four days later, while the yellow "danger tape" was still in place,
an MSHA inspector observed the adverse roof conditions, and issued an imminent danger order.
33 FMSHRC Page 482

into the area at issue." 12 FMSHRC at 917. Nevertheless, the Commission upheld the validity
of the order, noting:
Under section 107(a) of the Act, the Secretary is responsible not only for
determining the area of the mine affected by the danger and removing miners from
such area but also determining when miners may safely re-enter the affected area
because conditions or practices that caused the danger no longer exist. We cannot
conclude that the inspector abused his discretion in issuing an order prohibiting
re-entry into the area until the hazard was eliminated.
Here, it was Asbury, not Stacy, that first observed the hazardous roof conditions. He
issued a verbal imminent danger order to Stacy, who then implemented necessary measures to
bar entry to the area, and abate the condition. The order not only required that any miners be
removed, it prohibited re-entry into the area until Asbury was satisfied that the hazardous
conditions were completely abated. MSHA inspectors are afforded wide discretion in making
decisions to issue imminent danger orders, and their determinations will be reversed only if the
Secretary fails to prove that an inspector did not abuse his discretion. Asbury, an experienced
inspector and roof control specialist, clearly did not abuse his discretion in issuing the order.
Citation No. 8157630
Citation No. 8157630 alleges a violation of30 C.F.R. § 75.202(a), which requires that
''The roof face and ribs of areas where persons work or travel shall be supported or otherwise
controlled to protect persons from hazards related to falls of the roof, face or ribs and coal or rock
outbursts." The violation was described in the "Condition and Practice" section of the Citation
as follows:
. The main track way used by the East Mains crew, at the mouth of the 2
Left Section, had bad roof and an imminent danger order was issued to prevent
travelthrough the area. Cracks were present and timbers were breaking and the
metal jacks were taking weight in the area. The bad top conditions were observed
and rock was breaking loose over the area the mantrip must travel under. The
conditions were rapidly getting worse and could be observed, as the rock dripped
and loose pieces fell out.- A large piece of rock was hanging over the track and it
kept dropping down, a gap of 3 to 4 inches was in the large rock. The area is the
main travel way for the crew, the belt men and the repair crews. All travelways ·
where men regularly travel must be maintained in safe condition.
Ex. G-2.
Asbury determined that it was highly likely that the violation would result in a
permanently disabling injury, that the violation was S&S, that one person was affected, and that
the operator's negligence was moderate. The citation was subsequently modified to allege that
the operator's negligence was low. A civil penalty in the amount of$2,976.00 was proposed for
33 FMSHRC Page 483

this violation.
The Violation

Cyprus Emerald is instructive in disposing of Respondent's challenge to this violation.
There the Commission vacated the roof control citation that had been issued in conjunction with
the imminent danger order, because the area had been effectively dangered off, such that it was
not an area where persons worked or traveled. 12 FMSHRC at 917-18, Had Stacy observed the
conditions first and dangered them off prior to Asbury' s observing them, as in Cyprus Emerald,
persons would not have been allowed to work or travel in the area and the standard would not
have been violated. However, those are not the facts of this case.. Asbury, not Stacy, first
observed the condition. At that time there was nothing to prevent miners from traveling into the
area and encountering the dangerous condition. It was not until after the verbal imminent danger
order and the citation had been issued that measures to bar entry to the area and abate the
condition were implemented.
Respondent argues that, judged by the familiar "reasonably prudent person familiar with
the mining industry and the protective purpose of the standard" test, that its efforts to support the
roof would not be found wanting. Resp. Br. at 7-8. The argument misses the mark.
Respondent's efforts to address the adverse roof conditions were entirely reasonable.
Respondent had also fully complied with its roof control plan, and had adequately supported the
roof, prior to the development of the adverse conditions. However, once the adverse conditions
developed, any ''reasonably prudent person" would have had to conclude that the roof was not
adequately supported.
The roof in the track entry, a place where persons traveled, was not adequately supported
when Asbury observed it. The area had not yet been dangered-off, and miners could have
traveled thr~ugh the area. As such, the standard was violated. The Mine Act is a strict liability
statute, and an operator is liable for a violation of a mandatory safety standard regardless ofits
level of fault. Spartan Mining Co., 30 FMSHRC 699, 706 (Aug. 2008); Asarco, Inc.,
8 FMSHRC 1632, 1634-36 (Nov. 1986), affd, 868 F.2d 1195 (10th Cir. 1989). In Asarco, the
Commission concluded that "the operator's fault or lack thereof, rather than being a determinant
ofliability, is a factor to be considered in assessing a civil penalty."Jd. at 1636. Because the
mine roof in the travelway was not adequately supported at a time when work or travel had not
been effectively precluded, it follows that the operator violated the standard. That Asbury
eventually determined thatRespondent's negligence with.respect to the violation was low, that
Stacy promptly dangered the area off after the imminent danger order was entered, and that the
violation was abated shortly after the citation was issued, do not alter that conclusion.
Significant and Substantial
An 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
33 FMSHRC Page 484

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:

fu order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: ( 1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary of Labor, 861
F.2d 99, 103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021(Dec.1987)
(approving Mathies criteria).
1n 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 fonnula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event inwhich there is an injury." U.S. Steel Mining Co.,Jnc.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(l), it is the contribution ofa violation to the
cause ,and effect of a hazard that must be significant and substantial. U.S. Steel
Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574-75(July1984).
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 nonnal mining
operations had continued. Bellefonte Lime Co., 20 FMSHRC 1250 (Nov. 1998); Halfway, Inc.,
8 FMSHRC 8, 12 (Jan. 1986); U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). 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. A measure of danger to safety was
contributed to by the inadequate roof support in the affected area. There is little question that a
miner being struck by a rock falling from the mine roof, or colliding with a fallen rock while
traveling through the area, could reasonably have been expected to suffer a serious injury. As is
often the case, the primary issue in the S&S analysis is whether the violation was reasonably
33 FMSHRC Page 485

likely to result ill an injury causing event.
Asbury witnessed the development of the condition. The roof"started working" while he
was waiting for Stacy to come back. Tr. 24, 58. Consequently, the violative condition did not
exist for any appreciable length of time prior to the issuance of the order and citation. Whether
the violation was S&S turns on whether an injury causing event was reasonably likely to occur
under continued norn::tal mining operations, i.e., "absent intervention by a federal enforcement
official." U.S. Steel, 6 FMSHRC at 1574 (Commissioner Lawson, concurring). While Stacy and
Calo most likely would have taken action to abate the conditions in the absence of the imminent
danger order, their presence was due to the intervention of the MSHA inspector. If Asbury had
not visited the mine to continue his inspection by going to the 2 Left section to check on
abatement efforts for a previously issued citation, neither Stacy nor Calo would have been in a
position to observe the deterioration of the roof and taken corrective action. The dangerous
condition would have been discovered by some other traveler on the track, very possibly with
disastrous results.
The Commission and courts have observed that an experienced MSHA inspector's
opinion that a violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co~,
20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal, Inc., v. MSHA, 52 F.3d 133, 135-36
(7th Cir. 1995). Asbury, who had extensive mining experience and had worked for MSHA for
over ten years, was an experienced inspector. Given the number of persons that used the track, .
and the hazardous nature of the condition, his conclusion that the violation was S&S was
reasonable. The large rock was hanging·down in a precarious position. It could have been
contacted by a miner riding in a man trip, causing the rock to fall. ·Or, if it fell prior to a miner
passing, it could have been struck by a man trip. In either case, a reasonably serious injury would
have been reasonably likely.4 As noted above, the fact that miners may exercise caution is not an
element that can be taken into account in determining whether a violation rises to the level of
S&S.
Negligence
Asbury modified the citation to reflect that Respondent's negligence was low,·because
"the operator did not have knowledge of the condition." Ex. G-2. The Secretary argues that
Respondent's negligence was ''at least" low. Sec'y. Br. at 14. She contends, based on Asbury's

4

The Secretary attempted to establish that as many as nine persons were affected by the
violation, because the East Main crew would have departed at the end of their shift and may have
had as many a nine members on a man trip. Sec'y. Br. at 14. I find that it was substantially more
likely that one person would have been affected, e.g., the belt man or the pump man, because one
of them would most likely have traveled through the area before the East Main crew departed
and, in any event, the number of.miners that would have been riding on the first man trip taking
the 12-person crew out of the mine is unkrtowri. I find, as Asbury originally determined, that one
·
person was affected by the violation.

33 FMSHRCPage 486

testimony that the previous deterioration of the roof in the intersection at the end of the stub
track, the fact that there had been a roof fall seven months earlier about 180 feet away, and the
general conditions, such as the pillaring that had occurred on the other side of the track entry,
should have given Respondent "some inkling" that there were problems in the area. Tr. 66. She
also points out that Respondent's violation history reflects numerous violations of the roof
control standard in the 15 months preceding the issuance of the citation, which should have put it
on notice that greater compliance efforts were necessary. 5
The Secretary's penalty calculation regul~tions define low negligence as: "The operator
knew or should have known of the violative condition or practice, but there are considerable
mitigating circumstances." 30 C.F.R. § 100.3(d). Respondent obviously did not know about the
violative condition. The area was subject to as many as three preshift examinations per day, and
Asbury confirmed that the reports of those examinations did not include any problems with the
roof. Tr. 58. Moreover, Asbury agreed that the roof in the subject intersection had been
supported consistent with Respondent's roof control plan, and that he had not observed any
deficiencies when he traveled to the 2 Left section four days earlier. Tr. 29-30, 53-55. While
Respondent should have had, as Asbury stated, "some inkling" that further roof deterioration
might occur, there was no way to predict that the violation would occur in that location, only that
something might be expected at some time in the general area. Tr. 64-66. I find that Respondent
should not have known of the violative condition and that it was not negligent.
The Appropriate Civil Penalty
The parties stipulated that the Cherokee Mine is a large mine; that its controlling entity is
also large; and that the maximum penalty that could be assessed for the violation would not
affect Dickenson-Russell's ability to continue in business. The assessment data reflects that it
averaged slightly over one violation per inspection day during the relevant period, a moderate
incidence of violations. Respondent had 20 repeat violations within the pertinent time period,
which enhanced the regularly assessed proposed penalty. The violation was promptly abated.
Citation No. 8157630 is affirmed. However, Respondent was not negligent with respect
to the violation. A civil penalty of$2,976.00 was proposed by the Secretary. The lowering of
the level of negligence justifies a reduction in the proposed penalty. Upon consideration of the
above, the factors enumerated in section 1 lO(i) of the Act, and guided by the Secretary's penalty
calculation regulations,6 I impose a penalty in the amount of $1,200.00.

5

The Secretary argues that Respondent had 42 previous violations of the standard.
However, the assessment control form reflects 20 such violations, as does the violations history
report submitted by the Secretary. Ex. G-6.
6

30 C.F.R. Subchapter P, Part 100.
33 FMSHRC Page 487

ORDER
WHEREFORE, Order No. 8157629 is AFFIRMED, Citation No. 8157630 is
AFFIRMED as modified, and Respondent is ORDERED to pay a civil penalty in the amount
of$1,200.00, within 45 days.

Michael
ielinski
Senior Clministrative Law Judge

Distribution (Certified Mail):
Benjamin D. Chaykin, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Blvd., 22nd Floor West, Arlington, VA 22209-2247
Cameron S. Bell, Esq., Penn, Stuart & Eskridge, P.O. Box 2288, Abingdon, VA

33 FMSHRC Page 488

24212

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
7 Parkway Center
875 Greentree Road, Suite 290
Pittsburgh, PA 15220
Telephone: (412) 920-7240
Fax: (412) 928-8689

February 18, 2011
EMERALD COAL RESOURCES, LP,
Contestant,

CONTEST PROCEEDINGS
Docket No. PENN 2009-614-R
OrderNo. 8008143; 06115/2009

v.
Docket No. PENN 2009-615-R
Order No. 8008144; 06/15/2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Emerald Mine No. 1
Mine ID 36-05466

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 2009-697
A.C. No. 36-05466-192658

v.
EMERALD COAL RESOURCES, LP,
Respondent

Mine: Emerald Mine No. 1

DECISION

Appearances: Patrick M. Dalin, Esq., Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, Paul Marone, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania, for the Secretary
of Labor;
Ralph Herny Moore, Esq., Jackson Kelly, PLLC, Pittsburgh,
Pennsylvania, for Emerald Coal Resources, LP
Before:

Judge Andrews

This case is before me upon the petition for assessment of a civil penalty filed by
the Secretary of Labor ("Secretary") 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 Emerald Coal

33 FMSHRC Page 489

Resources, LP ("Emerald") with vioiations of mandatory standards and seeking civil
penalties in the amount of $71,862.00 1 for two safety violations. Both orders were section
104(d) actions. Section 104(d) of the Act provides as follows:
(d)(l) If, upon any inspection of a coal or other mine, an authorized
representative of the Secretary finds that there has been a violation of any
mandatory health or safety standard, and if he also finds that, while the
conditions created by such violation do not cause imminent danger, such
violation is of such nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health hazard, and if he
finds such violation to be caused by an unwarrantable failure of such operator to
comply with such mandatory health or safety standards, he shall include such
finding in any citation given to the operator under this Act. If, during the same
inspection or any subsequent inspection of such mine within 90 days after the ·
issuance of such citation, an authorized representative of the Secretary finds•
another violation of any mandatory health or safety standard and finds such
violation to be also caused by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring the operator to cause all
persons in the area affected by such violation, 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.
(2) If a withdrawal order with respect to any area in a coal or other mine has
been issued pursuant to paragraph (1), a withdrawal order shall promptly be
issued by an authorized representative of the Secretary who finds upon any
subsequent inspection the existence in such mine of violations similar to those
that resulted in the issuance of the withdrawal order under paragraph (1) until
such time as an inspection of such mine discloses no similar violations.
Following an inspection of such mine which discloses no similar violations, the
provisions of paragraph (1) shall again be applicable to that mine.
A hearing was held on October 5, 2010, in the Federal Mine Safety & Health
Review Commission's Pittsburgh, Pennsylvania, hearing room.
The general issues before me are whether Emerald violated the cited standards as
charged and, if so, what are the appropriate civil penalties to be assessed for those
violations. Additional specific issues are addressed as noted below.

Preliminary Matters
Motion to Amend
1

The parties, by joint stipulation, agreed to a modification of order No. 8008144 to change the likelihood of
injury from highly likely to reasonably likely, resulting in a §100.3 point total of 130, reducing the assessed
penalty from $60,000 to $30,288. Citation No. 8008143 was assessed a penalty of$41,547.

33 FMSHRC Page 490

Order No. 8008144 was issued on June 15, 2009. Ori September 17, 2010, the
Secretary filed a motion to amend to change the provision of the regulations in Block
9.C. of Form 7000-3 from 75.363(a) to 75.360(a). There is no specific Commission
Procedural Rule on motions to amend. Pursuant to Commission Procedural Rule 1(b),
where the Commission's own Procedural Rules do not address the question presented, we
are guided so far as practicable by the Federal Rules of Civil Procedure (Fed.R.Civ.P.).
30 C.F.R. §2700.l(b). emphasis added. Therefore, I will look to Fed.R.Civ.P. 15(a) for
guidance. Emerald's opposition to the motion, filed September 27, 2010, was primarily
on the grounds that the amendment was sought more than a year after the order was
issued, and that Emerald would be prejudiced by granting an amendment only 2 Yi weeks
prior to the hearing. At the hearing, Emerald limited their opposition to undue delay in
moving to amend the Order. (Tr. 322).
The Condition or Practice written by the Inspector in Block 8 of the form clearly
concerned a pre-shift examination, 30 C.F.R. § 75.360(a), rather than the posting of.a
danger sign, 30 C.F.R. § 75.363(a). In that narrative, both of these regulations were
listed, in the context of reviewing the requirements with all of Emerald's Mine
Examiners. The requested amendment merely confomls the Section of Title 30 in Block
9. C. to the actual Condition or Practice written in Block 8 by the Inspector. Listing
75.363(a) instead of 75.360(a) appears more likely to be a simple clerical error in
copying a cite than a substantive determination of a controlling standard. See, 30 C.F.R. §
2700.79. For this reason, fairness requires that either the delay in requesting the
amendment or the incorrect transposition of a citation must not become a basis for any
argument that the order be vacated. Accordingly, the Secretary's Motion to Amend is
GRANTED.
Admission of exhibits
Exhibit G-7, Mine Accidents. This was initially admitted without objection, (Tr. 99), but
in the Joint Stipulations (#15) there was the objection by Emerald based on relevance to.
penalty criteria. The document itself is a public record, compiled and made public by the
Mine Safety and Health Administration ("MSHA"), and is admissible. It was apparently
offered to show ignitions at this mine, and does show a number in 2004~ one in 2006, and
two in 2009. However, in further testimony, it was shown that these reported ignitions
were in the D-Mains section of the mine, well removed from C-Mains. where there has
never been an ignition. Thus, while the agency record is admissible, the past ignitions do
not appear to be relevant.
Exhibit G-9, Mine Citations, Orders and Safeguards. This is a public record from the
MSHA website, therefore, the document itself is admissible. The objection by Emerald is
to the use of any of the data beyond the 15-month period relevant to 30 C.F.R. § 100.3,
for history of violations in penalty assessment. The data from the 15 month period is
relevant for penalty assessment. The 24:..month data is relevant to show past violations.

33 FMSHRC Page 491

See Consolidation Coal Co., 23 FMSRHC 588, 595 (June 2001). Hence, the exhibit is
admitted, and the data used as appropriate;
Exhibit G-10, Order No. 8007448. This order was issued on April 16, 2009 for a
violation of75.400. It was initially issued as a 104(a) citation but subsequently changed
to a 104(d)(2) order, and refers to another order, No. 7069052, issued on- October 2,
2007, also alleging a violation of75.400. These violations were the basis for the history
in the June 15, 2009 order.. Emerald's objection was that order No. 8007448 remained
unadjudicated. I conclude that order No. 8007448 should be admitted for the limited
purpose of notice provided by the issuance, alone, of the prior orders. See Lopke
Quarries, Inc., 23 FMSHRC 705 (July 2001 ); Extra Energy, Inc., 23 FMSHRC 829
(Aug. 2001); Peabody Coal Co., 14 FMSHRC 1258 (Aug. 1992).

Discussion with Findin2s of Fact and Conclusions of Law
The Emerald Mine No. 1 is located in Greene County, Pennsylvania, and is an
underground coal mine. (Tr. 38.) It liberates more than one million cubic feet of methane
over a 24-hour period, which necessitates E02, 103(i) spot inspections. (Tr. 38-39 .)
On June 15, 2009, Mine Safety and Health Administration ("MSHA") Inspector
Joseph A. Vargo went to Emerald Mine No. 1 to perform an·E02 spot inspection. (Tr.
38.) At the time of the hearing, Inspector Vargo had been employed by MSHA for three
. years and three months. (Tr. 35.) His experience in the mining industry began in 1977,
and he worked for Consol Pennsylvania Coal Company at the Oakmont, Renton, and
Bailey mines. (Tr. 35, 131.) For most of the time, about 25 years, he was a Mine
Examiner at the Bailey mine. (Tr. 131.) At Consol, he participated in 8-hour annual
retraining, and at MSHA he completed the 21-week Mine Academy course and 15 weeks
traveling with seasoned Inspectors. (Tr. 37.) He received his AR card in July 2008, and
then began inspections on his own. (Tr. 35.) In June 2009, he was still within the
probationary period as a new Mine Inspector for MSHA. (Tr. 35-37, 131.)
Inspector Vargo arrived at Emerald Mine No. 1 at approximately 7:00 am. (Tr.
39.) He obtained a strip map from the Foreman's room, and reviewed the pre-shift report
for the midnight shift. (Tr. 42~) He found that no violations, dangers, or hazardous
conditions were reported for the C-Mains section, and the area was deemed safe to enter.
(Tr. 39, 42, 120, Ex. G-1 L) For the entire inspection, Inspector Vargo was accompanied
by Jeff Stewart from the Emerald Safety Department and United Mine Workers
("UMW'') walk around representative Dave Laporte. (Tr. 63.)
The inspection started at the C-Mains #1 entry, included all five faces in that
section, and then proceeded to the C-3 section to include the four faces there. (Tr. 49.)
The continuous miner was operating in the #2 entry, outby the #3 crosscut. (Tr. 49.)
When Inspector Vargo came to the #3 entry, he found accumulations at the face. (Tr. 50.)

33 FMSHRC Page 492

As he traveled from the #3 entry to the #4 entry, he found accumulations in the 4 to 3
crosscut. (Tr. 57.)
Order No. 8008143 (The accumulations)
Order No. 8008143, issued at 0930 hrs, alleges a violation of a mandatory safety
standard, section 75.400, and states:
[t]he mine operator was not following the cleanup program in the G-Mains
section (MMU 029-0). Coal was permitted to accumulate on the
previously rockdusted surface in the #3 entry of C-3, inby #3 crosscut.
The accumulation was 34 feet in length, 2 to 3 feet high, and 15 to 16 feet
in width, damp to dry, and black in color. There was also an accumulation
of coal in the #4 to #3 entry at 3 crosscut of C-3, that was 33 feet in
length, 2 to 6 feet high, and 9 to 16 feet wide, damp to dry, and black in
color.
fuspector Vargo testified that the accumulations measured 34 feet back from the #3 face,
were 16 feet wide, rib to rib, and 2 feet deep. (Tr. 50, 54, 55.) He found the material to
consist of coal and fine coal, damp to dry, approximately 60% coal ·and 40% rock. (Tr.
56.) He also made notes. (Ex. G-1.) He observed the material closely, bending down,
picking up some, and poking with his walking stick, and concluded there was more coal
than rock. (Tr. 55, 56, 60, 90.)The color was black, and not rock dusted. (Tr. 96, 127.) A
couple of 4-foot metal roof pins were also noted. (Tr. 57, 90, 91.)
Inspector Vargo found that the accumulation in the 4 to 3 crosscut was
approximately 33 feet long, 9 feet wide, and varied in depth from 6 feet to 1 foot (Tr.. 57,
58.) The two accumulations were close in proximity and were connected by some
additional material inside an installed air connection. (Tr. 82, 83, 84.) He estimated the
composition as 80% coal and 20% rock, damp to dry, with one roof pin. (Tr. 60.)Again,
he bent down, picked up some, and used his stick to dig down into the accumulation. (Tr.
59, 60.)
The size of the two accumulations is confirmed by the written statement of
Foreman Jeffery Stewart issued on the same day. (Ex. G-25.) UMW walk around
representative Dave Laporte observed Inspector Vargo use his stick and kick pieces of
the material around "to see what was in there." (Tr. 189, 190.) Mr. Laporte described
most of it to be dry, black and grey, and 45% coal. (Tr. 177, 179, 180.) Vargo testified
that never in his 30 years of mining experience had he seen accumulations like these, and
they should have been loaded out to the conveyor belt. (Tr. 70, 71.) Mr. Laporte was also
of the opinion that they should have gotten rid of the material. (Tr. 182.) Although Mr.
Stewart in his testimony attempted to characterize the accumulations as "70% rock," he
acknowledged that he was not present for the loading out and this was just an estimate.
(Tr. 262.)

33 FMSHRC Page· 493

30 C.F.R. §75.400 states:
[c]oal 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.
It is well accepted that "a violation of ... 30 C.F.R. §75.400 occurs when: an
accumulation of combustible materials exists." Old Ben Coal Company, 1 FMSHRC
1954, 1958 (Dec. 1979). "[A]n accumulation exists where the quantity of combustible
materials is such that, in the judgment of the [inspector,] it likely could cause or
propagate a fire or explosion if an ignition source were present." Old Ben Coal Company,
2 FMSHRC 2806, 2808 (Oct. 1980).
Emerald argues that the material pushed up to the face was part of the active
normal cleanup process, and therefore, not an "accumulation." (Resp. Posthearing Br. 8.)
As noted above, accumulations exist when a certain.mass of materials is present. I agree
with the Secretary's argument that how the mass came to be is not relevant to the
determination of whether an accumulation.exists. (See Secy. Posthearing Rep. Br. 2.) The
accumulations were so large that Inspector Vargo spotted them as soon as he walked
toward the face. (Tr. 109.) He testified to the combustible nature of the accumulations.
(Tr. 86, 87, 94, 95.) fu his notes, written at the time of the inspection,Vargo recorded
comments made by Section Coordinator Gary Bogumit thatthe accumulations were
excessive, and he did not know why they had not been cleaned up. (Tr. 65, Ex. G-1.) Yet
Mr. Bogumit testified that he did not recall saying that the material was excessive, and
attempted to contradict the inspector's notes stating, "I'm sure ldidn't make that
comment." (Tr. 224, 225.)

Mr. Bogumit; as well as mine employees Mark Hanley and Thomas Nickel,
testified to the effect that the accumulations were mostly all rock with a little coal mixed
in. (Tr. 214, 215, 218, 246, 247, 273.) Mr. Hanley did describe loose coal as being
present in his written statement. (Tr. 258, Ex. G-15.) Mr. Bogumit described the rock
and dust as wet, (Tr. 218, 224), but this assessment was not shared by other witnesses.
Manager William Schifko even testified that the material was not coal, but rock, (Tr.
305), despite the fact that he did not go into the mine until June 16th, after the 4 to 3
crosscut had been cleaned out and the #3 face rockdusted. (Tr. 307.) When compared to
the direct, close, tactile, and even probing examination of the accumulations by Inspector
Vargo, I am unable to assign any significant weight to the testimony of the company
employees other than UMW walkaround representative Dave Laporte.
I place little value on the attempts to either maximize or minimize the amount of
rock that fell from the roof, was "pushed up" and included in the accumulations. There
were two areas where some "potting out" around roof bolts had occurred, (Tr. 76, 77,

33 FMSHRC Page 494

146, 170, 171, Ex. G-2A, R-1), but the amount of such rock and its contribution to the
composition of the accumulations were only estimates at best. The examinations of
Inspector Vargo and the observations of Mr. Laporte are the best evidence of the coal and
loose coal present and are accorded controlling weight, with the greater weight placed on
the testimony of the Inspector. I find that the accumulations were very large, mostly coal
and loose coal, damp to dry, black in color, and also contained rock. Where loose coal is
present, the Commission has concluded that the 75.400 standard is violated. Black
Diamond Coal Mining Company, 7 FMSHRC 1117, 1121 {Aug. 1985).
Therefore, Emerald violated the mandatory safety standard in section 75.400.
Significant and Substantial
This violation was designated as significant and substantial {"S&S") by the
inspector. A violation is S&S when the violation is "of such nature as could significantly
and substantially contribute to the cause and effect of a coal or other mine safety or
health hazard." 30 U:S.C. §814{d){l). A violation is properly designated as 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). In
order to establish that a violation is S&S, the Secretary must prove:

(1) the underlying violation of a mandatory safety standard; {2) a discrete
safety hazard - that is, a measure ofdanger to safety- contributed to by
the violation; {3) a reasonable likelihood that the hazard contributed to
will result in an injury; and {4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.·

Mathies Coal Co., 6 FMSHRC 1, 3-4 {Jan. 1984); see also, Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 {7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d
99, 103-4 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 {Dec. 1987)
(approving Mathies criteria). The evaluation is made in terms of "continued normal
mining operations." US. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984).
I have found a violation .of the cited mandatory safety standard thereby meeting
the first criterion. The accumulations did contain coal and loose coal, combustible
material by definition, and a discrete safety hazard. As the MSHA Manual sets forth,
loose coal is a potential fire hazard, especially with drying out and turning into float coal
dust. Ignition sources include sparks from the carbide bits of the continuous miner,
electrical arcs, and the operation of beltways and equipment in roadways. With such a
source, combustion can occur with methane, (especially in a methane liberating mine),
float coal dust, loose coal dust, and spillage of other flammable materials, such as
hydraulic fluid. {Ex. G-6.) Therefore, the accumulations in this case did present a
potential fire hazard. But our analysis does not end there.

33 FMSHRC Page 495

An ignition source is also needed to start a fire or produce an explosion. "When
evaluating the reasonable likelihood of a fire, ignition or explosion, the Commission
[looks to] whether a "confluence of factors" were present based on the particular facts
surrounding the violation." Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997), citing
Texasgulf, Inc., 10 FMSHRC 498, 501(Apr.1988). These factors include "the extent of
the accumulations, possible ignition sources, the presence of methane, and the type of
equipment in the area." Enlow Fork Mining Co., 19 FMSHRC at 9, citing Utah Power &
Light Co., 12 FMSHRC 965, 970-71 (Mar 1990); Texasgulf, Inc., 10 FMSHRC at 500-3.

Inspector Vargo took no methane measurements on or in the accumulations. (Tr.
130, 131.) Although this is a methane liberating mine, such measurements as were made
in the area did not reveal combustible concentrations of gas. (Tr. 129.) This reduces the
idea of trapped methane pockets inside the accumulations to speculation. The ventilation
was adequate throughout the area. (Tr. 137, 138.) The continuous miner was in another··
entry. (Ex. G-4.) The nearest belt drive was 300-400 feet away. (Tr. J 73, 174.) No other
equipment was operating at the piles, and no electrical cables were there either. (Tr. 149.)
The record does not contain any evidence of spilled hydraulic oil. There was no active
work by miners in the immediate area. (Tr.158.) No witness described float coal dust as
being present.
The Secretary appears to rely on the potential for ignition, especially the return of
mining activity to the #3 entry and the installation of conveyor belt assemblies. Inspector
Vargo estimated the miner would return in 2 to 3 days. (Tr. 81.) He noted that fire
suppression water sprays are installed on the. miner. (Tr. 136.) Taking all of this into
· account, at the time of the inspection the danger of a catastrophic explosion from thes~ .
accumulations is not shown. The ventilation was adequate, methane was minimal, and
there were no ignition sources present. Therefore, applying the "confluence of factors"
test of Enlow Fork, I find that the violation was not S&S. Further, I find that the
likelihood of injury should be reduced from "reasonably likely" to "unlikely".
Unwarrantable Failure
The order was also designated as an unwarrantable failure, as set forth in section
104(d)(l) of the Mine Act, 30 U.S.C. §814(d)(l). Unwarrantable failure is conduct which
is considered "aggravated conduct constituting more than ordinary negligence." Emery
Mining Corp., 9FMSHRC 1997, 2001(Dec,1987). Unwarrantable failure is
"characterized by such conduct as "reckless disregard," "intentional misconduct,"
"indifference," or a ''serious lack of reasonable care.'"' Id. at 2003-4; Rochester &
Pittsburgh Coal Corp., 13 FMSHRC 189, 193-4 (Feb. 1991). .
The Commission has set forth factors to be considered in making an
unwarrantable failure ("UWF'') analysis. They are: "the extensiveness of the violation,
the length of time that the violative condition has existed, the operator's efforts to

33 FMSHRC Page 496

eliminate the violative condition, and whether an operator has been placed on notice that
greater efforts are necessary for compliance." Consolidation Coal Co., 18 FMSHRC
1541, 1548 (Sept. 1996), citing Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb.
1994).
The violation was extensive. Inspector Vargo testified that from the moment he
"walked up on it [he] noticed" the accumulations. (Tr. 109.) The accumulations were
very large in size. Each measilred over 30 feet in length, over 2 to 3 feet high, and over 9
feet wide. (Cit. 8008143, Tr. 50, 53-58.) The volume of material far exceeded any
accepted practice of pushing up small amounts (3 to 4 feet in length, a foot in depth) left
from the mining process to the face. (Tr. 62.) Whether considered individually or
collectively, the masses of coal, loose coal and rock that had been created were certainly
extensive.
The violative condition also existed for quite some. time. The area had been
examined for at least the prior five shifts. (Tr. 72, I 09, 118, Ex. G-1, pp 12, 15, Ex. G11.) While Emerald does have a cleanup program in which it is noted that "extra
attention is needed to eliminate accumulation of loose coal and fine coal" (Ex. G-13),
part of Emerald's normal cleanup process is to push excess material to the face. (Tr. 214,
216.) Despite testimony to the contrary, it does not appear that the mine's clean up
program was being followed. (Tr. 293.) There is also evidence that the accumulations
could have existed from June 9th until discovered on inspection. The potting out that
occurred on June 8th was cleared by.pushing. the material to the #3 face on June 9th. (Tr.
154-159, 213,.214, Ex. G-4.) Certainly. the coal, loose and fine coal, and rock were lying
on the coal bottoms and in the crosscut long enough for drying out to be well under way.
(Tr. 56, 60.) This supports the time estimate oflnspector Vargo, and is even suggestive
of several more days.
Considering both the extent of the accumulations and length of time they existed,
the opinions of Vargo and Mr. Laporte that they should have been loaded out of the mine
are compelling: (Tr. 69-71, 182.) As to these two factors, Emerald displayed an
indifference toward the standard violated.
Efforts on the part of the operator to timely abate the violation were lacking.
There was a delay in the agreed upon abatement plan. (Tr. 163-64.) The credible
evidence shows that Emerald did not place a priority on abatement of the violation,
despite a favorable amendment of the order allowing for rockdusting without removing
the accumulation at the #3 face and only loading out the accumulation in the crosscut.
(Ex. G-5.) Despite testimony suggesting that the delays were caused by the need to
unload a scoop containing supplies for the continuous miner, and the need to glue the
roof in the #2 crosscut near the #3 entry, (Tr. 183, 184, 223, 252), it appears more likely
that the abatement was subordinated to these other activities. The order to clean up was
at 9:30 a.m., and should have taken about one and one-halfhouts. (Tr. 165.) But the

33 FMSHRC Page 497

abatement was not completed until about 4:00 p.m. (Tr. 165~) Emerald did not exercise
diligence when ordered to perform the agreed-upon abatement.
The mine has been on notice that greater efforts are necessary for compliance.
Specifically, on April 16, 2009, Inspector Vargo issued Order No. 8007448 to Area
Manager and Section Coordinator Gary Bogumit for a violation of 30 C.F.R. §75.400.
(Tr. 114, Ex. G-10.) At that time, Vargo told Mr. Bogumit that he would not allow an
accumulation that was similar to the #3 entry accumulation in the instant case. (Tr. 117.)
Further, multiple prior orders have been issued to Emerald regarding section 75.400. (Ex.
G-9.) In the 24 months prior to June 15, 2009, 77 citations or orders were issued to
Emerald for violating 75.400. (Tr. 110, Ex. G-9.)
Mr. Bogumit testified that the standard process at Emerald mine is, after mining,
to push to the face the coal left behind and not loaded out. (Tr. 211-213, 214, 216.) In this
case, the accumulations existed through at least 5 pre-shift examinations. On the shift
preceding the inspection, Foreman Thomas W. Nickel performed the preshift
examination. (Tr. 268.) He. encountered the material pushed up to the #3 face, and in the
3 to 4 crosscut. (Tr. 270, 279.) Emerald had actual notice of the accumulations at the #3
face and 3 to 4 crosscut, but took no action to clean them up until ordered to do so; and
theri did not act promptly on the order. This constitutes, at least, a serious lack of
reasonable care.
Accordingly, based on the above analysis, I find that the violation was more than
ordinary negligence and constitutes unwarrantable failure and high negligence.
· Order No. 8008144 (Failure of pre-shift examination) .
Order No. 8008144 alleges a violation of30 C.F.R. §75.360(a)2 and states that
. [t]he pre-shift examination conducted for the C-Mains section (MMU
029-0) entry on midnight shift, 6-15-09 for the on-coming day shift was
not adequate in that the following hazards were not entered in the pre-shift·
examiners record book.
Loose coal and coal was permitted to accumulate as stated in order No.
8088143.
The requirements ofCFR 75.363 (a) and 75.360 shall be reviewed with all
mine examiners before this order is terminated.

2

Citation No. 8008144 originally alleged a violation of section 75.363(a). Pursuant to the above discussion
in the preliminary matters, the citation has been amended to correctly reflect a violation of section
75.360(a).

33 FMSHRC Page .498

This Federal Safety Standard has been cited 5 times at this mine in the last
24months.
As noted above, the parties, by joint stipulation read into the record at the hearing, agreed
to a modify order No. 8008144 to change the likelihood of injury from "highly likely'' to
"reasonably likely," resulting in a §100.3 point total of 130, reducing the assessed
penalty from $60,000 to $30,288.
30 C.F.R. §75.360(a)(l) states:
[e]xcept as provided in paragraph (a)(2) of this section, a certified person
designated by the operator must make a preshift examination within 3 hours
preceding the beginning of any 8-hour interval during which any person is
scheduled to work or travel underground. No person other than certified
examiners may enter or remain in any underground area unless a preshift
examination has been completed for the established 8-hour interval. The operator
must establish 8-hour intervals of time subject to the required preshift
examinations.
''The preshift examination requirement is of fundamental importance in assuring a safe
working environment for miners." Enlow Fork Mining, Co., 19 FMSHRC 5, 15 (Jan.
1997) (quoting Buck Creek Coal Co., 17 FMSHRC 8, 15 (Jan. 1995)). Additionally,
"accumulations of combustible materials qualify as hazardous conditions that should be
recorded by a preshift examiner when found." Enlow Fork 19 FMSHRC at 13, 15.
"Preshift examinations assess the overall safety conditions in the mine ... identify
hazards ... and through this identification facilitate correction of hazardous conditions."
Nat'l Mining Ass'n v. MSHA, 116 F.3d 520, 540 (D.C. Cir. 1997).

I have already found that the accumulations were present and they were
considered potentially hazardous. As established in the discussion of order No. 8008143,
above, the acclimulations at the #3 face and in the 3 to 4 crosscut existed for at least five
shifts. Both were large, mostly coal and loose coal, damp to dry, black in color, were not
rockdusted, and did present a potential fire hazard. Inspector Vargo reviewed the June 15,
2009 midnight shift examination report before entering the mine and found no indication
of any violation, danger, or hazard; it was deemed safe to enter. (Tr. 120.) However,
when he came upon the accumulations that day, they were so extensive they could not
have been overlooked. (Tr. 109.) Foreman Nickel performed the examination reviewed
by Vargo before entering the mine. (Tr. 268, 269.)

Mr. Nickel testified that he did encounter the two accumulations. (Tr. 270, 279.)
He did not consider the material to be a hazard, because it would be cleaned up at a later
time. (Tr. 272.) That a hazard would be taken care of at a later time is irrelevant to the
requirement to record the condition before the next shift begins. The record shows that
Emerald's employees did, in fact, see the accumulations. Testimony by other company

33 FMSHRC Page 499

employees was to the effect that the accumulations were not hazardous, and there was no
need to record them. (Tr. 218, 224, 250, 251, 263, 264, 272, 279.) In view of findings
already made that there was a fire hazard and that the clean up program was not being
followed, this testimony is not found credible.
Therefore, I find the failure to record the large accumulations at the #3 face and in
the 3 to 4 crosscut was a violation of75.360.
Significant and Substantial
The Commission has held that a pre-shift violation was S&S irrespective of the
absence of a specific hazardous condition disclosed upon the inspector's examination of
the mine. Kellys Creek, 19 FMSHRC 457, 461 (Mar. 1997); Buck Creek Coal Co., 17
FMSHRC at 13·15 (Jan. 1995).
The fact of a violation has been established. There was a discrete safety hazard,
considering the size of the accumulations, the combustible content, the small loose coal
particle size, its dryness, and the length of time the accumulations were allowed to
remain in the C-3 section without being recorded. This measure of danger to safety was
contributed to by the failure of the pre-shift examiners to report the hazards beforethe
next shift entered the mine.
The third question in the ·evaluation of the violation is whether there is a
reasonable likelihood that the hazard contributed to will result in an injury. Where there
is no advance warning that combustible accumulations are present in a working section
of the mine, the danger to unwary miners is heightened, and the risk increased that the
hazard contributed to by the lack .of a report will result in an injury.
Finally, in the context of continued normal mining operations, should a fire event
occur, it is reasonably likely that injuries would be ofserious nature, and the fourth
element of the S&S evaluation is also satisfied.
Accordingly, the violation of section 75.360 was "significant and substantial".
Unwarrantable Failure
The wide extent of the failure to record and report large accumulations containing
combustible materials is revealed by the operator's stated position that pushing coal left
from the mining process up to the face is standard operating procedure. After the potting
out on June 8th was cleared by also pushing it to the #3 face, which had been mined with
coal bottoms left in place, each pre-shift examiner thereafter found that the area was
"safe to enter." (Ex. G.;.11, G-24.) There were at least 16 such examinations prior to the
inspection on June 151h, with no notice provided to miners enteringthe C-3 section that
there were potentially hazardous accumulations present in the 4 to 3 crosscut and

33 FMSHRC Page 500

extending back 34 feet from the #3 face. The sheer volume of the piles would not be
missed by any pre-shift examiner traversing the area~
Emerald's efforts to ensure accurate and complete pre-shift examinations were
lacking. The Mine Examiners should have known that the clean up program requiring
extra attention to eliminate accumulations of loose coal and fine coal when leaving coal
bottoms was not being followed. (Ex. G-13.) The accumulations should have been well
described on each pre-shift report after they were created, with loading out, or at least
"dangered off' being the appropriate response. As evidenced by testimony, the operator
had actual knowledge of these hazards.
There was also prior notice that the pre-shift examinations had to improve. The
safety standard had been cited 5 times in the 24 months before the issuance of the order
on June 15, 2009. Further, the pre-shift examiners, instead of ignoring the accumulations,
should instead have been especially careful to discover and promptly report such
violations of75.400, which had been cited 77 times in the previous 24 months.
Therefore, Emerald was on notice that greater efforts were required to ensure adequate
pre-shift examinations.
· This aggravated conduct was beyond ordinary negligence and did constitute
unwarrantable failure and high negligence.

Penalty
Pursuant to section l lO(i) of the Act, "[t]he Commission shall have authority to
assess all civil penalties provided in this Act." 30 U.S.C. §820(i). The following six
statutory criteria are to be considered:
the operator's history of previous violations, the appropriateness of such
penalty to the size of the business of the operator charged, whether the
operator was negligent, the effect on the operator's ability to continue In
business, the gravity of the violation, and the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after
notification of a violation.

Id. I have considered each of the statutory criteria in assessing the penalties.
Additionally, the parties stipulated that the penalty will not affect Emerald's ability to
continue in business. (Ex. JX-1.)

33 FMSHRC Page 501

Order No. 8008143 is found to be non"".S&S, with injury or illness unlikely. This
results in a penalty reduction from $41,574.00to $8,421.00.
Order No. 8008144, as modified by the parties, is properly assessed in the amount
of $30,288.00.

ORDER.
For the reasons set forth above, Citation No. 8008143 is MODIFIED to reduce
the likelihood of injury or illness from "reasonably likely" to ..unlikely" and to delete the
significant and substantial designation. Citation No. 8008144 is AFFIRMED AS
MODIFIED BY THE PARTIES ABOVE. Emerald is hereby ORDERED TO PAY
the sum of$38,709 within 30 days of the date of this decision.3 Upon receipt of
payment, these cases are DISMISSED.

}::__42/<----

/~nneth R. Andrews ·

Administrative Law Judge

Distribution (Certified):
Patrick M. Dalin, Esq., Paul A. Marone, Esq., Office of the Solicitor, U.S. Department of
Labor, 170 S. Independence Mall West, Suite 630E, The Curtis Center, Philadelphia, PA
19106

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Ave.,
Suite 1340, Pittsburgh, PA . 15222

3

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT
OF LABOR, PAYMENT OFFICE, P. 0. BOX 790390, ST. LOUIS, MO 63179-0390

33 FMSHRC Page 502

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: 202-434-9917 I FAX: 202-434-9949

February 18, 2011
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. KENT 2009-126
A.C. No. 15-14728-162918

v.
FOX KNOB COAL COMPANY
Respondent,

Mine: Foresters Creek Strip

DECISION
Appearances: Robert Motsenbocker, Esq. Office dfthe Solicitor, U.S. Department of Labor,
Nashville, Tenessee, on behalf of the Secretary of Labor;
Julia L. McAfee, Esq., Carl R. McAfee, P.C., Norton Virginia, for the Respondent
Before: Judge Gill
This case arises from petitions for civil penalties filed by the Secretary of Labor under
Section 105(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 801 et seq., (the
"Act"). They charge the operator, Fox Knob Coal Company ("Fox Knob''), with three violations
of mandatory standards and seek civil penalties for those violations. The general issue before me
is whether Fox Knob violated the standards as alleged and, if so, what is the appropriate civil
penalty for those violations. Additional specific issues are addressed as noted.
The case was heard on October 28, 2010, at the Bell County Courthouse inPineville,
Kentucky. Respondent agrees in its Answer to the Secretary's Petition for Assessment of Penalty
that it is subject to the jurisdiction of the Mine Safety and Health Administration and that the
Administrative Law.Judge has jurisdiction to issue this decision.
Findings of Fact - Conclusions of Law
Respondent Fox Knob operates a surface coal mine in the vicinity of Wallins Creek,
Harlan County, Kentucky. Between June 12 and 23, 2008, MSHA inspector Larry Boggs
conducted. inspections of portions of the Foresters Creek Strip and Wallins dump sites, operated
by Fox Knob. Boggs wrote the three citations relevant to this case on June 12 and 23, 2008. (Tr.
41:7-42:15) Two of the citations, No. 8329773 (Exhibit S3) and No. 8329782 (Exhibit S9),
relate to the steering mechanism on large rock hauling trucks. The third citation, No. 8329772,
(Exhibit S 1) relates to a berm at the Wallins dump site.

33 FMSHRC Page 503

The Citations
Citation No. 8329772, issued on June 12, 2008, reads as follows:
Berms shall be provided to prevent overtravel and overturning at dumping
locations. The berm provided for the dump site of the Wallins Pit is inadequate in that it
was not midaxle height on the Eculid [sic] Rock Trucks that are using this dump site.
The dump berm that was provided was missing in most places and only had two spots
that had berms left from were the trucks had dumped.
Exhibit Sl
The gravity of the violation was assessed as reasonably likely to result in lost workdays or
restricted duty for a single person and as significant and substantial. 1 It was written as a 104(a)
citation. The operator's negligence level was assessed as moderate, and the proposed fine is
$946.00. (Petition for Assessment of Penalty)
· The Standard ·
30 C.F.R. § 77.1605 (1) provides:
(1) Berms, bumper blocks, safety hooks, or similar means shall be provided to prevent
overtravel and overturning at dumping locations.
Jhe Evidence
Boggs testified that he personally inspected the Wallins dump site on June 12, 2008. He
observed a truck rated to haul loads in the range of from 85 to 100 tons back up to the edge of the
dump site and dump a load. He also observed that there was no berm where the truck dumped.
There was a residual berm at two other places at this dump site where other trucks had dumped
"short"2 so as to leave part of the dump load on the dump· ramp for the bull dozer operator to use
to restore the berm. Boggs concluded that if a truck failed to stop at the edge of the dump site, it

1

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. n Cement Div., Nat'! Gypsum Co., 3 FMSHRC
822, 825 (April 1981). The question of whether a violation is S&S must be based on the particular facts
surrounding the violation. Texas Gulf, Inc:, 10 FMSHRC 498(April1988); Youghiogheny & Ohio Coal
Co., 9 FMSHR.C 2007 (December 1987).
2

The process of "short" dumping is described at Tr. 39:17-40:1 and 178:9-18.

33 FMSHRC Page 504

would fall 25 to 30 feet, or more. (Tr. 49: 12-51 :3) Boggs informed Henderson that he was going
to write a violation citation for the lack of berm at this location: (Tr. 53:19-54:11) The citation
was prepared and served on Henderson later, after the berm had been restored. (Tr. 53:7-18)3
Boggs testified that he wrote the citation alleging a "reasonable likelihood" instead of a "high
likelihood" of injury because a dozer operator was on the scene and was acting as a spotter for
the dump truck drivers. (Tr. 54:25-55:17) The dozer operator was using a CB radio to
communicate his spotter information to the truck drivers. (Tr. 54:25-56: 12)
Fox Knob witnesses, Jeff Dean and Harvey Henderson, disputed whether a truck would
fall 30 feet or more if it tipped over the edge of the dump area. Dean testified that the height of a
"lift" or dump area is only about ten feet. (Tr. 154:12-158:14 and 175:16-176:4) Henderson
testified that lift height is no more than ten feet due to equipment size constraints and company
policy. (Tr. 224:1-15 and 228:14-19)
Henderson testified that he was with Boggs when Boggs observed the conditions that led
to the berm citation. He saw a bull dozer push a large boulder over the edge of the dump area,
which wiped out a portion of the berm in the process. There was intact berm remaining on either
side of the disturbed area. The dump site was about 30 to 40 feet wide. The dozer had disrupted
a section of berm about 10 feet wide, leaving most of the six-foot-high berm intact on both sides.
(Tr. 229:7-232:4) The dozer operator pulled to one side out of the way and visually directed the
next truck by CB radio to the edge of the lift to dump its load. He then used some short dumped
material to rebuild the berm that had been disrupted by pushing the boulder over the edge. (Tr.
232:5-234:5)
Boggs agrees that the standard allows for means other than berms to prevent overtravel
and overturning when it speaks of"similar means." He also agrees that using a spotter is such a
"similar means" under his understanding of the standard. (Tr. 137:19-138:3)
Discussion
The standard mentions berms as one of several means to prevent overtravel and
overturning. 'n also uses the general term "or similar means" to show that the purpose of the
standard is to require effective means to prevent a vehicle from tipping over the edge of a work
area or roadway. It does not limit those means to berms only. Fox Knob argues that using a
spotter constitutes a "similar means" and fully complies with the standard. I agree.
The language of the standard is clear and unambiguous. There is no dispute between the
parties that using a spotter can be an appropriate means to comply with the intent of the standard,
and that berms are intended to be used only as a visual reference and not to stop trucks. (Tr.
143:2-144:14) This is also consistent with language in the MSHA Dump Point Inspection
Handbook, Handbook Number PHO 1-1-6, September 200 I:

Appendix D. Dump Point Safety: Best Practices

[... ]
3

It took only minutes for the berm to be repaired. (Tr. 62:7-63:12)
33 FMSHRC Page 505

ill. DOZER OPERATORS
Best practices for dozer operators at dump points are to :
•

Maintain ·adequate berms at the dump points.

[ ... ]
•

Act as a spotter for the trucks and keep them back from the edge when
conditions warrant.

Exhibit RIO, page 31. [Emphasis in the original.]
Further clarity comes from a review of the MSHA Dump Point fuspection Handbook
section dealing with berms and the testimony related to it (Tr. 135:16-20):

CHAPTER 2 - DUMP POINTS
[ ...]

G. Safe dumpin& practices near the edge of a pile
~

The berm should be used as a visual guide only. The berm should not
be used to help stop the truck but only as a visual· guide to judge where to
stop.

Exhibit RIO, page 15. [Emphasis in the original.]

There is no dispute that using a berm is but one means, among several, to satisfy the
intent of 30 C.F .R. § 77 .1605 (1). There is also no dispute that having the dozer operator act as a
spotter can satisfy this regulatory intent as well. The dispute between the parties devolves to
whether using a spotter during the brief period when the integrity of the berm at the Wallins
dump wa~ compromised violates the standard. I conclude that it does not. To reach this
conclusion, I am mindful that the regulations and handbook guidance cannot anticipate every
possible circumstance. They strive to guide those on the scene by establishing as clear an intent
as possible and by bolstering it with suggested best practices. Consistent with this, it is more
important to determine whether the intent of the standard is met than to argue over whether the
exact means chosen by the operator to address that intent are the best. It is also important not to
let disputes over best means become the primary focus. fumy view, that is what has happened
here. Regardless of whether it is better to use a spotter or to insist on uninterrupted berms, it is
easy to conclude. on these facts that there was no time in question when some approved means of
providing visual guidance to dump truck drivers were not in place. Accordingly, Citation No.
8329772 will be vacated. It follows that the related issues of gravity and negligence are moot.

33 FMSHRC Page 506

Citation No. 8329773, issued on June 12, 2008, reads as follows:
Mobile equipment shall be maintained in safe operating condition and equipment
in unsafe condition shall be removed from service immediately. When checked
the Euclid R85 B Rock Truck had excessive slack in the steering jack on the right
hand side of the truck. The steering jack moved from 1 Y:z to 2 inch in a up and
down manner. The operator removed this truck from service.
Exhibit S3
The gravity of the violation was assessed as reasonably likely to result in lost workdays or
restricted duty for a single person and as significant and substantial. It was written as a 104(a)
citation. The operator's negligence level was assessed as moderate, and the proposed fine is
$3,689.00. (Petition for Assessment of Penalty)
Citation No. 8329782, issued on June 23, 2008, reads as follows:
Mobile equipment shal 1 be maintained in safe operating condition and equipment in
unsafe condition hall be removed from service immediately. The steering jack on the left
hand side of the Euclid R85 B Rock Truck, Co.# 28011 has Y:z to 1 inch of movement in
a manner affecting the steering of this truck. The operator has removed this truck from
service until repairs are made.
Exhibit S9
The gravity of the violation was assessed as reasonably likely to result in lost workdays or
restricted duty for a single person and as significant and substantial. Itwas written as a 104(a)
citation. The operator's negligence level was assessed as moderate, and the proposed fineis
$3,459.00. (Petition for Assessment of Penalty)
Citations 8329773 and 8327982 were written on June 12 and June 23, 2008, respectively.
The factual allegations supporting these citations are essentially identical, aside from the
difference in the dates. They both refer to the same safety standard and allege the same
underlying factual predicate. Accordingly, I treat both citations together in the following
analysis.
The Standard
30 CFR § 77.404 (a) provides:
(a) Mobile and stationary machinery and equipment shall be maintained in safe operating
condition and machinery or equipment in unsafe condition shall be removed from service
immediately.
33 FMSHRC Page 507

The Evidence
The two trucks involved in these citations are the same size and model designation Euclid R85 B dump trucks.4 (Exhibits S3 and S9) Their steering mechanisms are essentially
identical and will be treated as such here. Euclid R85 B trucks have a hydraulic steering system
comprising opposing hydraulic ram cylinders that work in opposition, with one side pushing and
the other side pulling, to actuate a drag link that mechanically ties together the front wheel
assembly on each side of the truck so that the front wheels turn in tandem when the steering
wheel is turned. (Tr. 26:6-29:20; and 164:14-165:7) The two parts of the steering mechanism
central to this dispute are the "steering jacks" and the "drag link." The steering jack attaches to
the moveable steering assembly through a ball-and-socket joint. (TR. 106:7-14; and 245:6246:23)
Boggs used the same general procedure when he inspected each of the two trucks. (Tr.
71:9-18; 74:15-75:15; 84:14-23; and 101:14-102:21) He testified that when he inspected the
trucks in question here, he observed excess movement or "slack" in the joint that connects the
steeringjack to the steering assembly. He made his assessment visually and did not use any tools
or instruments. (Tr. 87:5-88:7; and 93:10-94:8) Boggs testified that he detected up to two inches
of slack on trucknumber 28003 (Exhibit S3; and Tr. 106: 15-25), and up to one inch of slack on
truck number 28011 (Exhibit S9). (Tr. 75:16-25; 78:1-4; 84:24-85:6; and 106:15-25)He
considered this amount of slack an obvious hazard. (Tr. 139:6-25) He ordered that the trucks be
taken out of service immediately for repair. (Tr.89: 19-90: 12) The repairs were promptly done
(Tr. 86:10-87:4), and the out-of-service orders were satisfied the same day they were issued.
(TR. 88:12-89:4)
Boggs testifiedthatif a steering jack joint were to fail, the jack on the opposite side of the
truck woul4 have to do the work of both jacks through the drag link. (Tr. 79:14-80:20) He views
this as a dangerous situation that had a bearing on his assessment of severity (Tr. 114:7-115:4),
particularly in light of the roads and terrain conditions where these trucks operate. (Tr. 30:1631:24; 79:14-81:4; 80:21-81:4; and 167:25-168:10) Boggs determined that, in the event ofa
steering mechanism failure, serious physical injury was reasonably likely, up to and including
death. (Tr. 81:5-83:5; 85:10-23; and 114:7-115:4) Boggs determined that there had been·
"moderate" negligence based on his conclusion that a defect of this nature and magnitude would
require an extended period of time to develop, and Fox Knob pmported to conduct frequent
inspections that should have brought these defects to their attention. (Tr. 81: 13-82:9; 82:3-84:7;
85:10-23; and 110:11-112:8) Boggs testified that, based on his own experience and common
sense, a driver of a truck like these should be able to feel the amount of slack in question here; it

4

Exhibit S3 is Citation Number 8329773 which relates to truck number 28003. Exhibit S9 is
Citation Number 8329782, which relates to truck number 28011. (Tr. 68:1-69:25)

33 FMSHRC Page 508

should be obvious. 5 (Tr. 22:22-23:6; 116:7-117:5; and 139:6-25) Boggs determined that these
alleged violations were significant and substantial (S&S) because of the excessive amount of
slack he observed. (Tr. 83:1-5; 110:11-112:8; and 118:22-119:6)
Fox Knob's witnesses testified that there was no obvious slack in the steeringjackjoints
beyond what would be considered normal and acceptable. (Tr. 107:8-108:4; and 245:6-246:23)
They produced evidence that MSHA has no regulatory standard that specifies how much slack is
acceptable. (Tr. 108:5-9; and 130:20-131 :7) They characterized Boggs' assessment of the slack
in the steering mechanism as inherently unreliable because the joint would have failed long
before that degree of slack could have developed. (Tr. 246:20-249:4) They dispute that Fox
Knob should be found negligent based on evidence that the steering mechanisms were inspected
daily by the truck operators (Tr. 109:12-21; and 189:15-191:21)6 and service personnel (TR.
191 :23-192:20) and less frequently by management and mechanics (Tr. 240: 12-241: 8), whose
responsibility it is to look for such problems. Fox Knob's witnesses conceded that it is not
optimal nor advisable to continue to operate a truck when one of the steering jacks has failed.
(Tr. 165: 19-169: 18) However, they maintained that even if there were a total failure of one of
the steering jack joints, the drag link is designed to and would, in fact, allow the truck to be
steered with sufficient control to allow the driver to bring it to a safe stop on the roads and in the
work areas where these trucks operate. (Tr. 165:8-14; 196:11-24; and 260:4-261:9)
Discussion
Section 77.404(a) requires that "[m]obile [...] equipment[ ...] be maintained in safe
operating condition and [...] equipment in unsafe condition [·... ] be removed from service
immediately." The Commission has held that section 77.404(a) imposes two duties: (1) to
maintain equipment in safe operating condition; and (2) to remove unsafe equipment from
service immediately (Peabody Coal Company, I FMSHRC 1494, 1495 (Oct. 1979)) and that
""[ d]erogation of either duty violates the regulation" (1 FMSHRC at 1495; see also Ambrosia
Coal & Construction Co., 18 FMSHRC 1552, 1556 (Sept. 1996)).
Equipment is in unsafe operating condition under section 77.404(a) when 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. (See Alabama By-Products Corp., 4 FMSHRC 2128, 2129
(December 1982) (involving identical standard applicable to underground coal mines)). The

5

Boggs agreed, on both direct and cross examination, that a truck driver would likely not notice
the gradually increasing amount of slack in the steering mechanism due to habituation. (Tr. 78:2079: 13; and 142:7-18)
6

The testimony of Fox Knob witnesses Michael Patterson and Samuel L. Howard was
essentially identical regarding how a truck driver does a daily pre-shift inspection and notes anything out
of the ordinary in his pre-shift log book.

33 FMSHRC Page 509

burden of proof is on the Secretary. The trucks in this case were mobile-equipment. Obviously,
they were not removed from service before the citations. Therefore~ if the conditions cited by
Boggs existed, and if they singly or in combination rendered it unsafe to operate the trucks, a
violation occurred. 7
Boggs has years of mining experience, including time driving heavy trucks such as these.
(Tr. 22:22-23: 1) Although he had limited experience as an MSHA inspector at the time of these
inspections8, he had received on-the-job training and classroom instruction regarding the safety.
and inspection of trucks. (Tr. 32:19-34:24) Nothingin the evidence calls into question the
methods used by Boggs to inspect these trucks. His inspection methods seem reasonably
conceived and executed to yield reliable observations. (Tr. 74:15-75:15; and 101:14-102:21)
fu making this judgement, I am aware that these are very large trucks, capable of hauling
many tons of material at a time and potentially capable of causing very serious consequences if
something should malfunction. I note that the roads on which these vehicles operate are mostly
unpaved work roads characterized by the presence of other trucks and moveable mining
equipment and constantly changing surface conditions due to wear and weather so as to require:
(l) constant driver vigilance, and (2) the ability of the mechanical systems to respond
appropriately to emergent demands. Irrespective of the dispute between the parties regarding the
amount of slack in the steering mechanisms, the evidence supports a finding that there was
sufficient slack to justify Boggs' issuance of the citation. There is no evidence suggesting that
Boggs did not conduct a competent, thorough, and reliable inspection. Giving him the general
deference due to any competent MSHA inspector, I conclude that the issuance of the citation was
justified and that there was enough slack present to require replacement of the defective p~s.
However, testimony from Fox Knob witnesses raises questions as to the reliability of
Boggs' quantification of the amount of play in the steering mechanism, but fails to undercut his
observation, and conclusion that the steering mechanisms were· unsafe and should have been
removed from service for repair. The evidence has enough probative weight to support Boggs'
conclusion that a violation of the standard occurred, but not enough to support the more specific
and pertinent issue that must be addressed in connection with the third prong of the Matthies
S&S test discussed below.

7

Equipment may be defective and not be in violation of the standard if the defect does not affeCt
safe operation of the equipment during its normal intended use (See Hobet Mining, Inc., I 9 FMSHRC · ·.
41I,414 (Feb. 1997) (ALJ Maurer)).
8

Boggs had been an MSHA inspector for only three months at the time of this dispute. ·He had·
done only a few other inspections prior to this. (Tr. 96:4-20)

33 FMSHRCPage 510

The preponderance9 of the evidence supports Boggs' conclusion that there was some
degree of slack in the steering mechanism on both trucks. There i~nothing in the evidence that
undercuts Boggs' conclusion as to the basic violation of the standard to the degree necessary to
discredit it. The dispute goes to whether the degree of slack was enough to support Boggs'
conclusions as to negligence and gravity. I conclude that Boggs' decision-making and testimony
overstated the degree of slack. However, the evidence is sufficiently convincing to establish that
there was enough slack apparent to an earnest and competent inspection to support a finding of a
violation of the standard. Thus, I conclude that the Secretary has met her basic burden. I affirm
the violation in each of these two citations.
Significant and Substantial
A significant and substantial 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. 10 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: (1) the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard--that is, a measure of danger to safety-contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that
the injury in question will be of a reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek
Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d
99, 103-04 (5th Cir. 1988), affg Austin Power,Jnc., 9 FMSHRC 2015, 2021(Dec.1987)
(approving Mathies criteria).
9

In.an enforcement proceeding under the Act, the Secretary has the burden of proving all
elements of an alleged violation by a preponderance of the evidence. In re: Contests ofRespirable Dust
Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), a.ff'd, Sec '.Y ofLabor v. Keystone
Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998). Moreover, the preponderance standard, in general,
means proof that something is more likely so than'not. Hopkins v. Price Waterhouse, 737 F.Supp.
1202,1206 (D.D.C. 1990).
10

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

33 FMSHRC Page 511

The question of whether a particular violation is significant and substantial must be base<
on the particular facts surrounding the violation. Texasgulf, inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). And, when evaluating the
"reasonable likelihood" element, "likelihood" is viewed in terms of continued normal mining
operations without any assumption as to abatement (US. Steel Mining Co., Inc; 6 FMSHRC ·
1573, 1574 (July 1984); Halfway, Inc., 8 FMSHRC 1, 12 (Jan. 1986); Southern Ohio Coal Co.,
13 FMSHRC 912~ 916-917 (June 1991)). The Secretary's burden of proof runs to all of the
Mathies elements. If the Secretary fails to present preponderant evidence on one or more of the
Mathies elements, there can be no conclusion that the violation was S&S.
The facts of this violation do not support a conclusion that these steering mechanism
violations are significant and substantial. The S&S allegation fails on the third prong of the
Mathies test. First, as discussed above, both violations - as described in the citations ~ are
affirmed. Second, the failure of a hydraulic steering jack would, judged by common sense, '
constitute· a discrete, albeit potential, measure of danger to safety. Third, the evidence presented
at trial fails to convince as to the reasonable "likelihood" that this hazard will result in an injury
that is: Fourth, of a reasonably serious nature.
The evidence presented at trial did not adequately address the element of "likelihood" as
defined above. In keeping with the requirement that "likelihood" be.assessed in terms of
continued normal mining operations without any assumption as to abatement, the decision point
here is whether it is likely that a serious injury would result if Fox Knob continued to operate,
inspect, and maintain its rock trucks as the evidence showed it had and continued to do at the
time of these citations. The issue is not whether a steering system failure is reasonably likely
· based on Boggs' s conclusion about the degree of slack in the steering mechanism. The issue is·
whether, after factoring out the excess in Boggs' conclusion, a steering system failure is
reasonably likely. It is not unreasonable to conclude that Boggs' assessment of the imminent
danger arising from the condition of the steering mechanism was strongly influenced by his
underlying and overstated assessment of the degree of slack in the system. Further, it is not
unreasonable to conclude that if Boggs' misjudged or misperceived the degree of slack, his
conclusion that it would amount to an S&S violation could and should be re-evaluated. fu other
words, since the facts do not support Boggs' description of the amount of slack, his S&S
evaluation does not warrant particular deference, and without a significant degree of deference,
the evidence does not preponderate in favor of an S&S finding.
The Commission and courts have observed that an experien~ed MSHA inspector's
opinion that a violation is significant and substantial is entitled to substantial weight. Harlan
Cumberland Coal Co., 20 FMSHR.C 1275, 1278-79. (Dec. 1998); Buck Creek coal Inc. v.
MSHA, 52 F.3d. 133, 135-136 (7th Cr. 1995). As mentioned above, this analysis does not imply
that Boggs' findings and conclusions do not warrant a degree of general deference. He is a
trained and adequately experienced inspector, and as such, is considered an important - though
not unassailable - source of information. However; because the preponderance of the evidence

33FMSHRCPage 512

supports a finding that Boggs significantly overstated the amount of play irt these steering
systems, general deference does not bridge the gap.
Neil Manning's testimony is important and helpful in assessing the degree of deference to
give to Boggs testimony about the amount of slack in the steering jacks. Manning has decades of
experience working on a wide range of mechanical systems on trucks such as these. (Tr. 239: 18240: 11) Specifically, he has replaced some 40 - 50 steering jack assemblies during that period.
(Tr. 244:17-245:1) At trial he illustrated his testimony with reference to an actual replacement
ball-and-socket joint from a steering jack assembly. His demonstration made it clear that the
degree of slack Boggs testified to, and on which Boggs concluded that these violations justified
an S&S enhancement, was simply not possible without a complete joint failure. Moreover, the
failure would have occurred with much less slack in the ball joint assembly than implied in
Boggs' testimony. I credit Manning's testimony that the ball-and-socket joint would have failed
completely with half or less of the slack Boggs claimed he observed. (Tr. 246:20-247:2~; and
272:23-273:20) I also credit Manning's and Michael Patterson's testimony and opinions about
whether a driver could maintain sufficient control over one of these trucks in the event of a
steering assembly failure in which one side's steering jack failed and the other side's jack had to
take over the entire steering system load through the drag link. They both opined that there
would be sufficient, though substantially compromised, steering control to bring a truck to a safe
stop on the haul roads relevant to these citations. In fact, Patterson has experienced just such a
failure and was able to safely stop. (Tr. 260:4-261 :9 ·Manning; ·and 196: 11-24 Patterson)
I conclude that the Secretary has not carried her burden of proof to show that this
violation was significant and substantial because that conclusion must refer to Boggs'
unsupported assessment of the amount of play in these steering systems. The facts of record do
support a finding of a basic violation of the standard, but do not support the more demanding
Mathies third prong test.
Penalty Assessment ·
Section 11 O(i) of the Mine Act delegates to the Commission and its judges "authority to
assess all civil penalties provided in [the] Act." 30 U.S.C. § 820(i). Sections 815(a) and 820(a)
delegate the duty of proposing penalties to the Secretary. Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess
the penalty. 29 C.F.R. § 2700.28. The Act requires, that "in assessing civil monetary penalties,
the Commission [ALJ] shall consider" six statutory penalty criteria: [1] the operator's history of
previous violations, [2] the appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the effect on the operator's ability to
continue in business, [5] the gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after notification of a violation. 30
u.s.c. § 820(I).
I find that Fox Knob acted in good faith in abating the violating conditions. Neither party

33 FMSHRC Page 513

adduced any evidence that justifies either an increase or decrease in penalty based on the
operator's size or history of violations. No evidence was presented to imply that the proposed
penalty would affect Fox Knob's ability to continue in business. I find the evidence establishes
the existence of sufficient slack in the steering mechanisms to justify the issuance of citations for
violations of the relevant standard at the level of moderate negligence. For the reasons set forth
above, I find that Fox Knob's negligence was moderate, but that it did not reach the level of
aggravated conduct.
Based on the cnteria in Section 1 IO(i) of the Act, the Secretary proposed a penalty of
$3,689.00 for citation No. 8329773, and $3,459.00 for citation No. 8329782, for a total penalty
of$7,148.00. Adjusting the Sectiop. 1lO(i) calculations to account for the lower negligence level
and lack of S&S severity, I find that the appropriate penalty amount is $745.00 for citation No.
8329773 and $687.00 for citation No.8329782, for a total assessed penalty of$1,432.00.

Order
Citation No. 8329}72 is hereby vacated. Citations No. 8329773 and 8329782 are
modified as explained above. Fox Knob is directed to pay a civil penalty of $1,432.00 within 40
days of the date of this decision on Citation Nos. 8329773 and 8329782.

. Zane Gill
Administrative Law Judge
Distribution:
Robert Motsenbocker, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church
Street, Suite 230, Nashville, TN 37219-2456

Julia L. McAfee, Esq., Carl R McAfee, P.C., Post Office Box 656, Norton, Virginia 242730656
led

33 FMSHRC Page 514

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

January 12, 2011
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 2009-1274-M
A.C. No. 24-02386-193778

v.
E.S. STONE & STRUCTURE, INC.,
Respondent

E.S. Stone & Structure Mobile 2

DECISION AND ORDER

Appearances: Matthew B. Finnigan, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado for the Petitioner
Josh Shultz, Esq., Law Office of Adele L. Abrams, P.C., Beltsville, Maryland for
Respondent
Before:

Administrative Law Judge Patrick B. Augustine

Procedural History

This case is before the court upon a petition for assessment of civil penalty under Section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (the "Act").
The parties filed joint stipulations of fact and cross-motions for summary decision. This case
involves a citation issued by the Department of Labor's Mine Safety and Health Administration
("MSHA") under Section 104(a) of the Act alleging a violation of30 C.F.R. §50.10. The parties
stipulated to the following facts:
1. Respondent E.S. Stone & Structure, Inc. ("E.S. Stone") owns the E.S. Stone &
Structure Mobile 2 Mine (Mine ID 24-02386) near Barber, Montana in Golden Valley County
(the "Mine").
2. E.S. Stone is engaged in mining operations in the United States, and its mining
operations affect interstate commerce.
3. The ALJ has subject matter and personal jurisdiction over the dispute in this
case.
4. E.S. Stone is subject to the jurisdiction of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. §§801-965 (the "Mine Act").
5. The Mine is a surface, dimensfon stone mine.
6. Eric Johnson and Scott Puppe own E.S. Stone.
7. Bennie Jo Pearrow was an employee ofE.S. Stone.
33 FMSHRC Page 515

8. Mr. Pearrowwas SI years old and had worked~at E.S. Stone for approximately
28 weeks as a "stacker" before April 8, 2009. fu this position, Mr. Pearrow was responsible for
stacking and packaging rock to be sold to customers.
9. On April 8, 2009, Mr. Pearrow began his shift at the Mine at 7:00 a.m.
10. After beginning work on April 8, 2009, Mr. Pearrow reported that he did not
feel well and E.S. Stone Supervisor Clinton Theriault instructed Mr. Pearrow to go home.
11. Mr. Pearrow elected to remain at work on April 8, 2009. Mr. Theriault
instructed Mr. Pearrow to work at a slow pace. He performed his regular duties, palletizing stone
at a slow pace with frequent breaks.
12. Palletizing stone requires E.S. Stone's employees to stack on shipping pallets
individual pieces of stone.
13. The stone that Mr. Pearrow was palletizing was various sizes. Each piece of
stone weighed between approximately 10 pounds and approximately 15 pounds.
14. At approximately 11 :00 a.m. on April 8, 2009, Christina Riley, Mr. Pearrow's
work partner, took a short break.
15. When Ms. Riley returned to work at approximately 11 :05 a.m. on April 8,
2009, she found Mr. Pearrow laying on the ground, next to the pallet that the two were stacking
on the east side of E.S. Stone's processing yard.
16. Ms. Riley yelled to Jeremy Forrest, an E.S. Stone breaker operator, who was
working in a nearby tent, that Mr. Pearrow needed medical assistance.
17. Upon hearing this, Mr. Forrest called Mr. Theriault via radio.
18. After Mr. Forrest's radio call, Mr. Forrest, Mr. Theriault, Ms. Riley, E.S.
Stone Tumbler Operator Barry Larette, and E.S. Stone Stacker Jonathan Lambert attended to Mr.
Pearrow. However, Mr. Pearrow was unresponsive, was not breathing, and did not have a pulse.
19. At 11 :08 a.m. on April 8, 2009, E.S. Stone employees began performing
cardiopulmonary resuscitation ("CPR") on Mr. Pearrow.
20. Also at 11 :08 a.m. on April 8, 209, an unidentified E.S. Stone employee
contacted owner Eric Johnson via two-:-way radio to alert Mr. Johnson of what had occurred.
' 21. Mr; Johnson, in response, called the E.S. Stone office.
22. Both the E.S. Stone office and Mr. Theriault promptly telephoned the Golden
County Sheriffs Department.
23. E.S. Stone employees continued to perform CPR on Mr. Pearrow until an
ambulance arrived at approximately 11:30 a.m. on April 8, 2009.
24. Upon the ambulance's arrival, emergency medical technicians took over CPR
from E.S. Stone employees.
25. At approximately 11 :45 a.m. on April 8, 2009, a life flight helicopter from St.
Vincent Healthcare in Billings, Montana arrived. Emergency medical technicians from the life
flight administered medication and automated external defibrillation to Mr. Pearrow.
26. At 12:05 p.m. on April 8, 2009, Golden Valley County Sheriff/Coroner Floyd
Fisher pronounced Mr. Pearrow dead.
27. Mr. Pearrow's body was taken via ambulance to Billings, Montana for an
autopsy.
28. After Mr. Fisher pronounced Mr. Pearrow dead, Mr. Johnson spoke with Mr.
33 FMSHRC Page 516

Fisher to gather information to report to Mr. Pearrow's family.
29. After speaking with the medical personnel, Mr. Johnson addressed the 20-25
employees who had gathered at the scene. Mr. Johnson dismissed the employees for the day and
answered questions from the employees.
30. Mr. Johnson then contacted the E.S. Stone office via two-way radio to gather
information from Mr. Pearrow's file to report to MSHA.
31. Between 12:45 and 12:50, Mr. Johnson attempted to contact MSHA to report
Mr. Pearrow's death. Mr. Johnson called MSHA, however the cell phone service dropped the
call and Mr. Johnson changed location to seek better reception.
32. Mr. Johnson was only able to get cell phone service utilizing the cell phone
power booster and external antenna in his pickup truck, located near the work trailer on the west
side of the processing yard.
33. At 12:52 p.m. on April 8, 2009, Mr. Johnson reported Mr. Pearrow's death
via cell phone to Brian Goepfert ofthe Mine Safety and Health Administration ("MSHA").
34. MSHA issued an order pursuant to Section 103(k) of the Mine Act and
instructed Mr. Johnson to secure the area.
35. At 6:34 p.m. on April 8, 2009, MSHA lifted the 103(k) order.
36. The autopsy concluded that Mr. Pearrow suffered from severe hypertropic
cardiomyopathy, which caused the heart attack that killed Mr. Pearrow.
37. Owen Erickson, an authorized representative of the Secretary of Labor,
investigated Mr. Pearrow's death for MSHA.
38. Mr. Erickson interviewed E.S. Stone owners and employees, including Mr.
Johnson, Mr. Puppe, and Mr. Theriault.
39. On April 8, 2009, at 6:45 p.m., Mr. Erickson issued E.S. Stone Citation No.
6451203 pursuant to Section 104(a) of the Mine Act, alleging a violation of 30 C.F.R. §50.10.
Mr. Erickson indicated in that citation that there was no likelihood of injury or illness arising
from the alleged violation; that an injury or illness arising from the alleged violation could
reasonably be expected to yield no lost workdays; that the violation was not significant and
substantial; that E.S. Stone had engaged in moderate negligence in violating JO C.F.R. §50.10;
and that no miners were affected by the alleged violation.
40. Mr. Erickson terminated the citation at 6:50 p.m. after confirming that E.S.
Stone had notified MSHA about Mr. Pearrow's death and discussing with the company's owners
the requirements of 30 C.F.R. §50.10.
41. MSHA proposed a specially assessed penalty of$5,000 for Citation 6451203.

The Cited Regulation

30 C.F.R. §50.10: The operator shall immediately contact MSHA at once
without delay and within 15 minutes at the toll-free number, 1-800-746-1553,
once the operator knows or should know that an accident has occurred
involving:
(a) A death ofan individual at the mine;
(b) An injury of an individual at the mine which has a reasonable

33FMSHRCPage 517

potential to cause death;
(c) An entrapment ofan individual at the mine which has a reasonable
potential to cause death;
(d) Any other accident.
Brief Summary of the Parties' Arguments
A. Secretary of Labor:
Petitioner argues that the record clearly establishes that Respondent "failed to
alert MSHA about an accident - a miner's death - until at least 47 minutes had
lapsed." This was 32 minutes beyond the deadline proscribed in the
regulation. Therefore, she asserts that the citation should be affirmed and the
proposed penalty of $5,000.00 is the minimum penalty required by Congress
for such a violation pursuant to the provisions of the Miner Act, 30 U.S.C.
§820(a)(2).

B. E.S. Stone:
Respondent argues that it conducted a brief, reasonable investigation
into the incident prior to notifying MSHA, which is authorized and anticipated
by the preamble to the regulation. Once Respondent quickly concluded that
an accident had occurred, that emergency life-saving measures were
exhausted, and ensured that there were no immediate dangers posed to other
mine employees, Respondent immediately contacted MSHA and reported the
fatality in full compliance with the regulation.

Discussion
The.Commission's rules provide that a "motion for summary decision shall be granted
only if the entire record, including pleadings, depositions, answers to interrogatories, admissions,
and affidavits show that: (1) there is no genuine issue as to any material facts; and (2) the moving
party is entitled to summary decision as a matter of law." 29 C.F.R. §2700.67(b). The court finds
that the facts stipulated to by the parties are sufficient to render a decision on the legal issues
raised in the parties' cross motions for summary judgment.
The court summarizes the parties' stipulations as follows: Respondent operates a surface
stone mine near Barber, Montana. On April 8, 2009, Bennie Pearrow and Christina Riley were
stacking cut stone onto pallets. At approxiinately 11 :00 a.ril., Ms. Riley took a short break.
When Ms. Riley returned five minutes later, Mr. Pearrow was laying on the ground and
unresponsive. Ms. Riley then yelled to nearby employee, Jeremy Forrest, that Mr. Pearrow
needed medical assistance. Mr. Forrest immediately called Supervisor Clinton Theriault on the
radio and told him of the emergency. About three minutes later, there were five employees at the
scene, including Ms. Riley, Mr. Forrest, and Mr. Theriault. They assessed Mr. Pearrow and
detennined that he was not breathing, had no discemable pulse, and was unresponsive. One of
them then began performing CPR, while at approximately the same moment, another employee

33 FMSHRC Page 518

informed owner Eric Johnson by radio of the event. Mr. Johnson called the main office and told
them to call the County Sheriff. Mr. Theriault, separately, also called the County Sheriff.
Respondent's employees continued to perform CPR on Mr. Pearrow until an ambulance arrived
at approximately 11 :30 a.m., twenty-five minutes after Mr. Pearrow was first discovered. At
11:45 a.m., a medical response helicopter arrived at the site. At 12:05 p.m., Golden Valley
County Sheriff/Coroner Floyd Fisher pronounced Mr. Pearrow dead. Between 12:05 p.m. and
12:45 p.m., Mr. Johnson conducted a brief investigation into the incident, which included
monitoring the removal.of Mr. Pearrow's body by ambulance, speaking briefly with the Coroner,
briefly addressing and dismissing the approximately twenty-five employees who had gathered at
the scene, and contacting the main office by radio to gather personnel information about Mr.
Pearrow in preparation for contacting MSHA. At 12:45 p.m., Mr. Johnson then telephoned
MSHA's toll-free number by cell phone. When his cell phone could not complete the call
because of low signal, he immediately traveled to his truck to obtain a cell phone signal booster.
At 12:52 p.m., Mr. Johnson executed the call to MSHA and reported the fatality.
MSHA Citation 6451203 alleges "[t]he mine operator failed to immediately contact
MSHA at once without delay and within fifteen (15) minutes ofa fatality that occurred at the
processing site on April 8, 2009. A miner succumbed to an apparent heart attack and was
pronounced dead at 12:05 hours MDST. MSHA was notified at 12:52 hours MDST. The mine
operator was aware of the immediate reporting requirement." MSHA characterized the alleged
violation of 30 C.F .R. §50.10 as a non-S&S violation with moderate negligence on the part of the
operator. Despite these characterizations, Petitioner assessed a penalty of$5,000.00 based on the
statutory language regarding minimum penalty assessments for this type of violation at 30 U.S.C ..
§820(a)(2).
The Miner Act imposed a 15-minute time limit for reporting fatalities and serious
accidents. 30 U.S.C. §8130). As a result, in March of 2006, MSHA issued an Emergency
Temporary Standard (''ETS") which modified the language of30 C.F.R. §50.10 where operators
were previously required to "immediately" report fatalities and accidents, by imposing a 15minute time limitation. 71 F.R. 12260. In the preamble to the ETS, MSHA stated that the "ETS
does not change the basic interpretation of §50.10. By the terms of the provision, an operator is
required to notify MSHA only after determining whether an 'accident' as defined in existing
paragraph 50.2(h) has occurred. This affords operators a reasonable opportunity to investigate an ·
event prior to notifying MSHA.. That is, mine operators may make reasonable investigative
efforts to expeditiously reach a determination." Id. When the Final Rule on the amendment to
this regulation (and others) was promulgated in December of 2006, Section 50.10 was further
modified and MSHA's preamble language explaining that the amendments to 50.10 still allow a
"reasonable opportunity to investigate an event prior to notifying MSHA" was removed. The
preamble to the Final Rule also clearly states that "like the Miner Act, [§50. l O] does not include
any exceptions to the 15-minute notification provision... " 71 F.R. 71435. The preamble also
clarifies, in a manner consistent with Commission case law, that incidents requiring cardiopulmonary resuscitation (CPR) constitute "injuries which have a reasonable potential to cause
death." 71 F.R. 71434. See Cougar Coal, 25 FMSHRC 513 (September 5, 2003).

33 FMSHRC Page 519

Therefore, based primarily on the undisputed facts that: (1) Respondent's employees, in
the presence of a supervisor, began performing CPR on Mr. Pearrow at 11 :08 a.m. on April 8,
2009, (2) Mr. Pearrow was pronounced dead by the Coroner at 12:05 p.m., and (3) Respondent
made its first attempt to contact MSHA at 12:45 p.m., the court finds that Respondent failed to
comply with the requirements of 30 C.F .R. §50.10. ' Respondent knew it had experienced a
reportable accident arguably at 11:23 a.m. (:fifteen minutes after CPR was initiated) and
conclusively at 12:20 p.m. (fifteen minutes after the official pronouncement of death). The court
agrees that the violation was non-S&S but does not agree that Respondent demonstrated
moderate negligence in this instance. Respondent quickly implemented and exhausted lifesaving efforts, conducted a prompt assessment/investigation into the situation, and then
immediately proceeded to contact MSHA. Accordingly, the operator's negligence will be
modified from "moderate" to "low."

Penalty'
Under section 11 O(i) of the Act, ''the Commission shall have authority to assess all civil
penalties provided in this Act." 30 C.F.R §820(i). Although the Secretary issues citations and
orders under the Act and proposes civil penalties, it is the Commission that is responsible for
assessing civil penalties and providing other appropriate relief. Sellersburg Stone Co., 5
FMSHRC287, 290-91(Mar.1983), aff'd, 736 F.2d 1147 (7th Cir. 1984). Tue·Commission's
assessment of penalties is a de novo determination based on the six statutory criteria specified in
·section 1 IO(i) of the Act. In this case, the Secretarypoints to the language of the Miner Act, at
30 U.S.C. §820(a)(2), which states: "The operator of a coal or other mine who fails to provide
timely notification to the Secretary as required under section 8130) of this title (relating to the 15
minute requirement) shall be assessed a civil penalty by the Secretary of not less than $5,000
and not more than $60,000." Tue court notes that this penalty provision is plainly and
'unambiguously directed only at the Secretary of Labor, not the Commission. As further evidence
of this poinl; one rteed only look fo the statutory language of the_ following two paragraphs of the
Miner Act. Section 820(a)(3)(A) provides that "the minimum penalty for any citation or order
issued under section 814(d)(l) of this title shall be $2,000.00." Section 820(a)(3)(B) similarly
provides that "the minimum penalty for any order issued under section 814(d)(2) of this title shall
be $4,000.00." Clearly, the plain language of §§820(a)(3)(A) and (B) indicate generally
applicable minimum penalties, while the language of §820(a)(2) applies only to the Secretary of
Labor.2 Therefore, consistent with long-standing precedent, the undersigned interprets these
provisions as recognizing discretion on the part of the Commission in assessing penalties for
violations of29 C.F.R. §50.10. Sellersburg Stone Co., supra.
Section 11 O(i) of the Act requires the Commission to assess civil monetary penalties ·
1 Although prior AU decisions are not controlling, the court notes that this case is distinguishable from Premier
Chemicals, LLC, 2007 WL 2409536 (F .M.S.H.R.C. Aug. 10, 2007) in that the violation in that case occurred on
July 19, 2006, while the Emergency Temporary Standard, rather than the Final Rule, was in effect.
2 The court has also considered the language of 30 U.s.c. §820(a)(4) and concluded that it applies only to Federal
appellate review in a circuit court and does not clarify the differences in the statutory language between §820(a)(2)
and §§820(a)(3)(A) and (B). Accordingly, it does not dictate a different result by this court.

33 FMSHRC Page 520

considering: (1) the operator's history of previous violations, (2) the size of the business, (3) the
level of negligence by the operator, (4) the effect on the operator's ability to continue in business,
(5) the gravity of the violation, and (6) demonstrated good faith in attempting to achieve rapid
compliance after notification of the violation. The stipulations do not address Respondent's
violation history, however, MSHA's penalty assessment form in the court's files indicate three
previous violations. Respondent is a small operator, exhibiting low negligence in this instance,
and demonstrated good faith in notifying MSHA of the incident forty-seven minutes after lifesaving efforts ended and Mr. Pearrow was officially pronoWiced dead. Accordingly, the
$5,000.00 penalty proposed by Petitioner for Citation No. 6451203 will be reduced to $2,000.00.

ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that Citation
No. 6451203 is hereby AFFIRMED with an ASSESSED penaltyof$2,000.00, which shall be paid
by Respondent within thirty (30) days.

Distribution:
Matthew B_. Finnigan, Esq., Office ofthe Solicitor, U.S. DepartmentofLabor, 1999 Broadway, Suite
1600, Denver, CO 80202
Josh Shultz, Esq., Law Office of Adele L. Abrams, P.C., 4740 Corridor Place, Suite D, Beltsville,
MD20705

33 FMSHRC Page 521

33 FMSHRC Page 522

ADMINISTRATIVE LAW JUDGE ORDERS

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

January 3, 2011
SECRETARY OF LABOR, MSHA,
on behalf of RODNEY PAYNE,
Complainant

v.
SPIRO MINING, LLC, AND ITS
SUCCESSORS,
Respondent

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. CENT 2010-1135-D
DENV-CD 2010-14
DISCRIMINATION PROCEEDING
Docket No. CENT 2011-42-D
DENV-CD 2010-14
Mine: Calder Mine
Mine ID: 34-02105 A408

ORDER DISSOLVING TEMPORARY ECONOMIC REINSTATEMENT ORDER
FOR FAILURE TO FILE SECTION 105(c)(3} ACTION

This matter is before me on the Respondent's December 29, 2010 Motion to Dissolve
Temporary Economic Reinstatement Order granted on behalf of Rodney Payne pursuant to
section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2). In
Respondent's. Motion to Dismiss, Respondent states that the Secretary has decided not to proceed
under section 105(c )(2), and that Payne has not filed an action on his own behalf under section
105(c)(3) within the allowable 30-day time period. Respondent moves th~t the temporary
economic reinstatement be terminated and the September 8, 2010 Order of Temporary
Reinstatement be dissolved. For the reasons explained, Respondent's Motion is granted.
The Secretary filed an Application for Temporary Reinstatement on behalf of Rodney
Payne on August 12, 2010. A hearing was scheduled for September 3, 2010 in Fayetteville,
Arkansas. Prior to the hearing, the parties negotiated a settlement of the issues raised by the
Application and filed a Settlement Agreement and Joint Motion for Temporary Reinstatement.
Mr. Payne signed the Settlement Agreement. Pursuant to the terms of the Settlement Agreement,
Respondent agreed to economically reinstate Mr. Payne effective September 6, 2010, until the
merits of his discrimination complaint were resolved.
On September 8, 2010, I granted the Joint Motion for Temporary Reinstatement and
ordered Respondent to economically reinstate Mr. Payne will full pay and benefits as existed
prior to his June 14, 2010 termination, as specified in the Settlement Agreement and Joint
33 FMSHRC Page 523

Motion for Temporary Reinstatement.
On November 17, 2010, the Secretary filed a Motion to Dismiss Discrimination
Complaint. fu her Motion to Dismiss, the Secretary determined that the provisions of section
105(c)( 1) had not been violated. The Secretary vacated the civil monetary penalties proposed
and requested the dismissal of her discrimination complaint without prejudice to the right of Mr.
Payne to file a timely action under section 105(c)(3). On November 17, 2010, Respondent filed 2
Motion for Dissolution of Temporary Reinstatement Order.
On November 23, 2010, I issued an Order Granting the Secretary's Motion to Dismiss
Discrimination Complaint; Order Denying Respondent's Motion to Dissolve Temporary,
Economic Reinstatement Order; Order Denying Respondent's Motion For Summary Judgment
Without Prejudice; Order Denying Respondent's Motion for an Expedited Hearing or
Alternatively for Order Vacating Temporary Economic Reinstatement; and Order Denying
Respondent's Objections to Complaint and Motion to Dismiss. I concluded, inter alia, that a
temporary reinstatement order remains in effect until final Commission order on the merits of the
miner's underlying discrimination complaint, even if the Secretary exercises her prosecutorial
discretion not to pursue that complaint under section 105(c)(2). I concluded that under section
105(c)(2) and the terms of my September 8, 2010 Order of Temporary Economic Reinstatement,
there had been no final order on the complaint. I further concluded that Mr. Payne had 30 days
from the Secretary's November 17, 2010 notification of no violation, to file an action on his own
behalf before the Commission under section 105(c)(3). Finally; I noted that if Mr. Payne did not
initiate a timely action under section 105(c)(3), the ''temporary" reinstatement provision was no
longer applicable, and Respondent could move for a dissolution of the Order and obtain a final
Commission order on Mr. Payne's discrimination complaint.
As set forth in the Respondent's Motion, Mr. Payne has failed to file his own action under
section 105(c)(3) within 30 days ofthe Secretary's November 17, 2010 notification of no
violation. The 30-day statutory deadline expired on December 17, 2010. The expiration of the
allowed time to file an action under section 105(c)(3) leaves no further avenue for Mr; Payne to
pursue his discrimination complaint. Therefore, the temporary reinstatement provision is no
longer applicable and my previous Order of Temporary Economic Reinstatement is dissolved
under Commission Rule 45(g). This Order shall become a final decision of the Commission 40
days after its issuance, unless a petition for discretionary review is granted. 30 U.S.C. §
823(d)(l).
Accordingly, it is ORDERED that Respondent's Motion to Dissolve Temporary
Economic Reinstatement Order be GRANTED.

33 FMSHRC Page 524

It is further ORDERED that my September 8, 2010 Order of Temporary Economic
Reinstatement is DISSOLVED, and that Mr. Payne's economic reinstatement is terminated.

-n.,..,.,~ t: t~
It

Thomas P. McGartb.P
Administrative Law Judge

Distribution:
Dolores G. Wolfe, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin St., Suite
501, Dallas, TX 75202
Steven Marusich, 25858 Highline Rd., Spiro, OK 74959
Tony Huffman, Esq., P.O. Box 9, 411 Bruce Ave. NW, Camden AR 71701

/cp

33 FMSHRC Page 525

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
72119TH STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5266/FAX 303-844-5268

January 4, 2011
CNIL PENALTY PROCEEDINGS

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

Docket No. LAKE 2008-41
A.C. No. 11-02752-129287-05
Docket No. LAKE 2008-42
A.C. No. 11-02752-129287-06
Docket No. LAKE 2008-43
A.C. No. 11-02752-129287-07

v.

Docket No. LAKE 2008-81
A.C. No. 11-02752-131664-03
Docket No. LAKE 2008-145
A.C. No. 11-02752-136300-08
THE AMERICAN COAL COMPANY,
Respondent

Mine: Galatia Mine

ORDER DENYING RESPONDENT'S MOTION FOR SUMMARY DECISION

These cases are before me on petitions for assessment of civil penalty under Section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Act").
American Coal Company ("American" or the "Respondent") filed a motion for summary
decision (the "motion") under Commission Procedural Rule 67. 29 C.F.R. § 2700.67. The
Secretary of Labor ("Secretary") filed a response in opposition to the Respondent's motion. The
parties have also submitted thf: following joint stipulations:
1. American Coal is an "operator" as defined in § 3(d) of the Federal
Mine Safety and Health Act of 1977, as amended (hereinafter "the
Mine Act"), 30 U.S.C. § 803(d), at the coal mine at which the
citations at issue in this proceeding were issued.
2. Operations of American Coal at the coal mine at which the
citations were issued in this proceeding are subject to the
jurisdiction of the Mine Act.

33 FMSHRC Page 526

3. This proceeding is subject to the jurisdiction of the Federal Mine
Safety and Health Review Commission and its designated
Administrative Law Judges pursuant to Sections 105 and 113 of
the Mine Act.
4. The individuals whose signatures appear in Block 22 of the
citations at issue in this proceeding were acting in their official
capacity and as authorized representatives of the Secretary of Labor
when the citations were issued.
5. A true copy of each of the citations at issue in this proceeding was
served on American Coal as required by the Mine Act.
6. The total proposed penalties for the citations in this proceeding
will not affect American Coal's ability to continue in busin.ess.
7. The citations contained in Exhibit "A" attached to the Secretary's
petitions are authentic copies of the citations that are at issue in this
proceeding with all appropriate modifications or abatements, if
any.
8. Any motion for summary judgment filed in these proceedings - and
any decision by this Court in response to any such motion - shall
apply to the following citations: in Docket No. LAKE 2008-41,
Citation No. 6669738 and 6667302; in Docket No. LAKE 200842, Citation No. 6668301; in Docket No. LAKE 2008-43, Citation
Nos. 6668322 and 6668325; in Docket No. LAKE 2008-81,
.Citation No~ 6667919; and in Docket No. LAKE 2008-145,
Citation No. 6668169.

Jt. Stip. 1-8.
Section 2700.67 sets forth the grounds for granting summary decision:
A motion for summary decision shall be granted only if the entire
record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows:
(1) That there is no genuine issue as to any material fact; and
(2) That the moving party is entitled to summary decision as a
matter oflaw.
American argues that the subject safeguards are invalid on their face and, therefore, any
citations issued for violations of such safeguards must be vacated. Specifically, American
contends that the underlying safeguards fail to identify with necessary specificity any hazard
and/or the conduct required of the operator to remedy such hazards, and/or they do not address
hazards that are not covered by a mandatory standard. The Secretary contends that the
underlying safeguards are valid and summary decision is not appropriate.

33 FMSHRC Page 527

The material facts are not in dispute. However, for reasons that follow, I find that
American is not entitled to summary decision as a matter oflaw and, accordingly, DENY its
motion.

I. DISCUSSION
Section 314(b) of the Mine Act grants the Secretary authority to issue "(o]ther safeguards
adequate, in the judgment of an authorized representative of the Secretary, to minimize hazards
with respect to transportation of men and materials." 30 U.S.C. § 874(b). A representative of the
Secretary, generally an inspector, may issue a notice to provide safeguard only after
·
"determin[ing] that there exists ... an actual transportation hazard this is not covered by a
mandatory standard." Southern Ohio Coal Co., 14 FMSHRC 1, 8 (Jan. 1992). The Commission
has held that, because a notice to provide safeguard isissued by an inspector and is not subject to
the notice and comment procedural protections of section 101, the language of a notice to
provide safeguard "must be narrowly construed" and is "bounded by a rule of interpretation more
restrained than that accorded promulgated standards." Southern Ohio Coal Co., 7 FMSHRC
509, 512 (Apr. 1985). In recognition of such, and in order to provide proper due process, a
notice to provide safeguard "must identify with specificity the nature of the hazard at which it is
directed and the conduct required of the operator to remedy such hazard." See id.; See also
Cyrus Cumberland Resources Corp., 19 FMSHRC 1781, 1784-1785 (Nov. 1997).
Based on the foregoing, a notice to provide safeguard is valid where a transportation
hazard, and the conduct required to remedy such, are identified with necessary specificity. The
parties' arguments in this case are essentially the same as those raised by the same parties in an
earlier proceeding involving the same issue, i.e., the validity of underlying safeguards. 1 In my
order denying a motion for summary decision in the earlier proceeding, I stated the following:
I find that the "hazard," as contemplated by section 314(b)
of.the Mine Act, refers to conditions/objects in the mine, as
opposed to potential risks/outcomes associated with those
conditions or objects. I base my below analysis on whether the
subject notices to provide safeguard identify with necessary
specificity (1) a.condition/object that could affect the safe
transportation of men and materials and, (2) the conduct required
to remedy such. If the notices to provide safeguard are sufficiently
specific, then the safeguards are valid and may be properly .
enforced. However, in the event they are not sufficiently specific,
then the safeguard will be deemed invalid and the Respondent will
not be subject to citations or orders issued under the safeguard. At
1

The earlier proceeding involved American Coal Company Docket Nos. LAKE 2007-139, LAKE 2008-79,
LAKE 2008-83, LAKE 2008-84, LAKE 2008-122, LAKE 2008-237, LAKE 2008-532, LAKE 2008-536,
LAKE 2008-537, LAKE 2008-538, and LAKE-2008-539.

33 FMSHRC Page 528

the outset, I note that I will not allow specificity to be argued to the
detriment of common sense.
While, on occasion, the Secretary chooses to include
language in the safeguard which addresses the potential
risks/outcomes associated with hazards, such inclusion is not
necessary under Commission case law. The fact is, far too many
potential risks exist with any hazard for an Inspector to be expected
to identify each and every one. Further, it would be nonsensical
and not in the spirit of the Act for a violation of safeguard to be
vacated where a hazard exists, causes an injury or accident,. but the
notice to provide safeguard fails to include the specific scenario
involving the hazard that leads to the injury or accident.

American Coal Co., LAKE 2007-139, etc., Unpublished Order at 3 (Sept 20, 2010). The same
analysis is equally applicable here.

a.

Safegu,ard No. 4056981

On October 12, 1994, MSHA issued a notice to provide safeguard No. 4056981, which
stated as follows:
The MT-11. personnel carrier located on the MMU 004, was not
provided with a well maintained audible warning device. It failed
to sound an alann or warning when operated. This is a notice to
provide safeguards that all personnel carriers should be equipped
, with well maintained, functional audible warning devices.
The notice was issued under section 75.1403-6(a)(l) of the Secretary's regulations.
I find that the notice to provide safeguard identifies with necessary specificity the hazard
of a non-functioning audible warning device on a personnel carrier. The Respondent points out a
number of potential risks that may be created by this hazard. See Resp. Mnt. 5. Further, I find
that the Secretary's description of the conduct required to remedy the hazard is sufficiently .
specific, namely, that all personnel carriers be equipped with functioning, well maintained
audible warning devices. This condition is easily identified and corrected. l:find this safeguard
to be sufficiently specific. Moreover, Section 75.1403-6(a)(l) of the Secretary's Regulations
"set[s] forth specific 'criteria' which guide authorized representatives in requiring safeguards,"
see Wolf Run Mining Co., 32 FMSHRC _,slip op. at 2 n. 3, No. WEVA 2008-804 (Oct. 21,
2010), and states that "[e]ach self-propelled personnel carrier should ... [b]e provided with an
audible warning device[.]" This criteria provision, which requires essentially the same thing as

33 FMSHRC ~age. 529

the notice of safeguard at issue, provided notice to the Respondent that such a safeguard could be
issued.
For the above reasons, I find that Safeguard No. 4056981 is valid on its face and,
therefore, the Secretary may issue citations pursuant to violations of such.

b.

Safeguard No. 7582396.

On November 22, 2005, MSHA issued a notice to provide safeguard No. 7582396, which
stated as follows:
This is a notice to provide safeguarq for all longwall units, the ·
hydraulic manifolds, hoses and CIU shield control boxes shall be
mounted in a manner to provide maximum walkway clearance
between the pan line cable tray rail and the shield components. In
the event that clearances cannot be maintained to provide safe
travel in these areas for the miners the conveyor shall be shut off .
and the electrical isolation switch at the head gate opened before
miners travel through the affected area.
The notice was issued under section 75.1403 of the Secretary's regulations.
I find that the notice to provide safeguard identifies with necessary specificity the hazard
of hydraulic manifolds, hoses and CIU shield control boxes· which could obstruct the walkway
between the pan line cable tray rail and the shield components on the longwall. The Respondent
points out a number of potential risks that may be created by this hazard. See Resp. Mot. 6..
Further, I fi:r:id that the Secretary's description of the conduct required to remedy the hazard is
sufficiently specific, namely, that the above mentioned objects be mounted in such a way that
provides maximum walkway clearance between the part line cable tray rail and the shield
components. American argues that it is not clear what amount of clearance will be considered
adequate for miners to safely travel through the walkway. By not providing a specific amount of
clearance, the Secretary has chosen to impose upon herselfa more difficult standard of proof for
a violation of the safeguard. In the event the Secretary issues a citation for.violation of this
safeguard, the Secretary will be required to establish that American failed to mount the object in
a position that.provides the maximum amount of walkway clearance between the pan line cable
tray rail and the shield components. Conversely, American will be able to provide evidence that
it has mounted the objects in a location that provides maximum walkway clearance in the subject
area. Moreover, the notice of safeguard goes on to provide a contingency plan if the objects
"cannot be maintained to provide safe travel." By providing the operator with corrective
measures which can be taken to address the hazard, as well as a contingency plan which can be
utilized if the preferred method of remedying the hazard cannot be used, the Secretary has
provided a sufficiently specific description of the conduct required to remedy the hazard.

33 FMSHRC Page 530

For the above reasons, I find that Safeguard No. 7582396 is valid on its face and,
therefore, the Secretary may issue citations pursuant to violations of such.

c.

Safeguard No. 4267616

On January 27, 1995, MSHA issued a notice to provide safeguard No. 4267616, which
stated as follows:

The PV55 was not equipped with a sealed-beam headlight, or its
equivalent, on each end. The rear lights had a blown fuse. This is
a notice to provide safeguards that all personnel carriers shall be
equipped with a functional sealed-beam headlight or its eql;livalent
on each end.
The notice was issued under section 75.1403-6(a)(2) of the Secretary's regulations.
I find that the notice to provide safeguard identifies with necessary specificitythehazard
of a non-functioning sealed-beam headlight on a personnel carrier. The Respondent points out a
number of potential risks that may be created by this hazard. See Resp. Mot. 7. Further, I find
that the Secretary's description of the conduct required to remedy the hazard is sufficiently
specific, namely, that all personnel carriers be equipped with a functional sealed-beam headlight
or its equivalent. I find this safeguard to be sufficiently specific. Moreover, Section 75.14036(a)(2) of the Secretary's Regulations "set[s] forth specific 'criteria' which guide authorized
representatives in requiring safeguards," see Wolf Run Mining Co., 32 FMSHRC ____, slip op. at
2 n. 3, No. WEVA 2008-804 (Oct. 21, 2010), and states that "[e]ach self-propelled personnel
carrier- should ... [b]e provided with a sealed-beam headlight, or its equivalent, on each end[.]"
This criteria provision, which requires essentially the same thing as the notice of safeguard at
issue, provided notice to the Respondent that such a safeguard could be issued.
For the above reasons, I find that Safeguard No. 4267616 is valid on its face and,
therefore, the Secretary may issue citations pursuant to violations of such.

d.

Safeguard No. 7577893

On January 21, 2004, MSHA issued a notice to provide safeguard No. 7577893, which
stated as follows:

A material trailer was observed parked along the 4th North
Headgate at crosscut number 24. The cable roofI ]bolts, on the
trailer, extended outby the rib line approximately four feet into the

33 FMSHRC Page 531

travelway. A continuous mining machine was also parked, along
the· Main West Travelway, at crosscut number 36 with the tail
extending outby the rib line approximately three feet. This is a
notice to provide safeguards requiring all trailers and mine
equipment be parked inby the rib line at all times.
The notice was issued under section 75 .1403 of the Secretary's regulations. On May, 18, 2004,
MSHA modified the notice to provide safeguard by adding the following language to the end of
the "Condition or Practice" set forth above: "If not possible, then a readily visible warning devic(
will be posted on each side to alert oncoming traffic."
I find that the notice to provide safeguard identifies with necessary specificity the hazard
of mine equipment and trailers parked such that they extend outby the rib line;. The Respondent
points out a number of potential risks that may be created by this hazard. See Resp. Mot. 8.
Further, I find that the Secretary's description of the conduct required to remedy the hazard is
sufficiently specific, namely, that all trailers and mine equipment be parked inby the rib line at all
times. Moreover, the modification to the notice of safeguard added a contingency plan if parking
the trailers and equipment inby the rib line is not possible. By providing the operator with
corrective measures which can be taken to address the hazard, as well as a contingency plan
which can be utilized if the preferred method of remedying the hazard cannot be used, the
Secretary has certainly provided a sufficiently specific description of the conduct required to
remedy the hazard.
For the above reasons, I find faat Safeguard No. 7577893 is valid on its face and,
therefore, the Secretary may issue citations pursuant to violations of such. 2

e.

Safeguard No. 7581083

On June 3, 2005, MSHA issued a notice to provide safeguard No. 7581083, which stated
as follows:
A suitable crossing facility was not provided for the energized 6th
North Conveyor Belt in the belt drive area, where miners are
routinely crossing under the energized belt conveyor. A bridge has
been built under the belt in this area for miners to cross under the
moving belt. This is a Notice to Provide Safeguards requiring
where persons cross moving belt conveyors that a suitable crossing
facility be provided.
The notice was issued under section 75.1403-56) of the Secretary's regulations.
2

Recently, in American Coal Co., LAKE 2007-171, etc., Unpublished Order at 17-18 (Dec. 17, 2010),
Judge Manning determined that this same notice of safeguard was valid.

33 FMSHRC Page 532

I find that the notice to provide safeguard identifies with necessary specificity the hazard
of miners routinely crossing under an energized belt conveyor. The Respondent points out a
number of potential risks that may be created by this hazard. See Resp. Mot. 8-9. Further, I find
that the Secretary's description of the conduct required to remedy the hazard is sufficiently
specific, namely, that suitable crossing facilities be provided at places where persons cross
moving belt conveyors. American argues that the language of the safeguard is too subjective to
provide meaningful notice of what is required to comply with the safeguard. I agree with Judge
Manning's statement addressing the validity of the same safeguard that "[c ]onveyor crossing
facilities are :frequently built in underground mines so American Coal will not have to start from
scratch or take a wild guess as to what MSHA will find acceptable." American Coal Co., LAKE
2007-171, etc., Unpublished Order at 20 (Dec. 17, 2010). Moreover, Section 75.1403-S(j) of the
Secretary's Regulations "set[s] forth specific 'criteria' which guide authorized representatives in
requiring safeguards," see Wolf Run Mining Co., 32 FMSHRC _ , slip op. at 2 n. 3, No. WEYA
2008-804 (Oct 21, 2010), and states that "[p]ersons should not cross moving belt conveyors,
except where suitable crossing facilities are provided." This criteria provision, which requires
essentially the same thing as the notice of safeguard at issue, provided notice to the Respondent
that such a safeguard could be issued.
For the above reasons, I find that Safeguard No. 7581083 is valid on its face and,
therefore, the Secretary may issue citations pursuant to violations of such.

II. ORDER
·Based on my findings, the Respondent is not entitled to summary decision as a matter of
law and, a~cordingly, I DENY its motion for summary decision.

~er~
~:i':~~ve
Law Judge

33 FMSHRC Page 533

Distribution: (U.S. Certified Mail)
Suzanne Dunne, Travis Gosselin, Emelda Medrano, U.S. Dept. of Labor, Office of the Solicitor,
230 S. Dearborn St., 81h Floor, Chicago, IL 60604
Marco Rajkovich, Noelle Holladay True, Rajkovich, Williams, Kilpatrick & True, PLLC, 3151
Beaumont Centre Circle, Suite 375, Lexington, KY 40513

33 FMSHRC Page 534

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021
Telephone: (202) 577-6809
Fax: (202) 434-9949

February 28, 2011

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

CNIL PENALTY PROCEEDING
Docket No. PENN 2009-564
A.C. No. 36-05466-186704

Petitioner
v.

Mine: Emerald Mine No. 1
EMERALD COAL CO.,
Respondent

DECISION DENYING MOTION TO APPROVE SETTLEMENT

Before: Judge Moran
This case is before the Court upon a petition for assessment of a civil penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977. The Secretary has filed a
motion to approve settlement. The originally assessed amount was $208,685.00 and the
proposed settlement is for $30,773.00. The Secretary also requests that each of the Orders be
modified. For the reasons which follow, the Motion is DENIED.
The Motion seeks to have the six orders involved in this docket reduced by 78% for two
of them, 76% for two others; 92% for one and 97% for another. This results in an overall
reduction of more than 85% from the origin~! assessments. To support this dramatic reduction
the Secretary's Motion provides a breathtaking economy of words. As one example, for a section
104 (d)(2) Order, number 8006616, asserting an inadequate preshift examination, the rationale
employs a mere 33 words 1 for its supporting rationale to bring a proposed penalty of $35,543.00
down by 78% to $7,774.00.

1

Removing necessary out unenlightening articles, conjunctions and a recitation about the
nature of the violation, the number of words explaining the proposed reduction drops to 20.
33 FMSHRC Page 535

Of course, it is not simply a matter oftallying words. The few words offered to support
the motion are quite uninformative. 2 The rationale, in its entirety, provides: "Modify to
reasonably likely, change number of persons affected from 6 to 1. This is an inadequate preshift
violation, and the underlying conditions were not as likely as originally assessed because only tht:
examiner would be affected." Motion at 2.
There is much to comment about the justification presented for this 78% reduction over
the initial proposal. First, it is a non sequitur to state that the underlying conditions were not the
same because only the examiner would be affected. Second, the Order relates that hazards
described in another order and in two other citations3 were not recorded in the preshift exam and
that such omissions exposed miners entering the section to unknown hazards. The issuing
inspector deemed it to be an unwarrantable failure.· Nowhere does the motion address the impact
of those other hazards. Nor does the Secretary's motion deal at all with the inspector's notation
that the standard, that is, the inadequate preshift, has been cited 4 times at the mine in the past 2
years. Then too, much of the pithy rationale, offers in fact no rationale but instead consists of
unsupported assertions, such as "[m )odify to reasonably likely," and "change number of persons
affected from 6 to l ." Those assertions do not illuminate any underlying basis for support of
those changes and therefore the Court is uninformed as to the reasoning, as opposed to
conclusions, to support them.
As mentioned, the Order described above, number 8006616, referenced two other
citations which are not included in this docket and the motion provides no information about
them to the Court. But one order is included in this docket and it is appropriate to examine that
included order, number 8006611, and the Secretary's offering in this motion to support the 92 %
reduction it seeks for it. That order pertained to coal accumulations running some 702 feet. The
order also recorded accumulation depths running from 1 to 7 inches and some 2 to 4 feet in
width. The inspector marked it as an unwarrantable failure, significant and substantial, the

2

Uninformative, and despite being as short as it is, wrong too. For example, in its
Motion and in its draft order the Secretary lists the last of the six violations as Number 6607448.
The problem with that is that there is no such number among the citation/order numbers for this
docket. fustead the correct number is 8007448. This is important because, aside from being
inaccurate, the violation was originally issued as a section 104(a) citation and then modified to a
104(d)(2).
3

The two citations, identified by number, are not part of this docket. The Secretary does
not indicate what those citations involved, whether it checked on their nature, nor whether it
consulted with the issuing inspector about the Respondent's contentions regarding this Order or,
for that matter, any of the six citations/orders involved in this docket. It turns out that, at least
the allegations for the one order which is part of this docket and which was referenced in this
alleged violation, involves the very serious matter of considerable accumulations of coal and coal
dust for some 702 feet in an entry that serves as an alternate escapeway. That latter order was
also deemed by the issuing inspector as unwarrantable.

33 FMSHRC Page 536

injury likely to be fatal if it occurred, and the likelihood as "highly likely." The issuing inspector
considered it important enough to note that the mine had been cited 79 times for violation of this
standard in the past two years. The Court considers this to be of importance as well,· and at least
deserving of comment in any motion. Yet, the Secretary's motion is very uninformative, stating
only "Modify to unlikely (still a 104(d)(2)), change number of persons affected from 6 to 1.
Upon further review, an ignition of this material was unlikely under the circumstances." Yet, the
order states that the accumulations were dry to touch, black in color, and of the depths previously
described above. The inspector also noted that battery scoops travel the entry every shift.
Other aspects of the motion are equally troubling, beyond the lack of supporting rationale
for the Court to be able to independently assess the proposed, great, reductions. For example,
both Orders 8006616 and 800661 7, deal with very different topics, the former with an inadequate
preshift, while the latter deals with an unsafe conveyor belt in a different longwall section. The
unsafe conveyor in 8006617, it was alleged, had abraised the belt structure and was hot with
visible smoke emanating from the belt, which belt was in operation. Yet, somehow, the motion
seeks the exact proposed reduced penalty for both orders, at $7,774.00.
The Court will not go into further detail to describe every aspect of the inadequacies of
the motion. Suffice it to say that each putative "rationale" suffers from the same type of
deficiencies noted above and deprives the Court of adequate information to independently
evaluate the merit of the proposed reductions, as ·opposed to simply accepting conclusions upon
faith. Without such information, the Court is unable to perform its job.
Also, there is no averment that the Secretary consulted with the issuing inspector upon
receiving the contentions made by the Respondent mine. If the Secretary fails to consult with the
inspectors who are diligently performing their safety and health inspection responsibilities in the
Nation's mines, it is obvious this will have a demoralizing effect upon those front-line
enforcement personnel. Accordingly, the Court considers it a fundamental averment for the
Secretary to at least include a statement that there has been such consultation, so that the Court
can be assured that the Secretary's averments are grounded in fact. Finally, the Court has
expressed before that settlements should reflect proportionality. That is, as the amount of a given .
reduction grows from the initial assessment, generally the amount of information to justify the
reduction should be proportionally greater as well. Restated, a proposed reduction of 50% will
generally require more information to support it than a reduction proposing a 10% reduction.

33 FMSHRC Page 537

Accordingly, for the reasons stated, the Motion is DENIED. The Secretary is directed to
either resubmit an adequately supported motion; and to indicate whether it has consulted with the
issuing inspector as to assertions made by the Respondent which run contrary to the inspector's
citation or order. Alternatively, the Secretary, upon reevaluation of its position, may elect to
proceed to hearing on such matters for which a settlement justification, as currently proposed, is
no longer deemed fitting.

William B. Moran
Administrative Law Judge

Distribution:
Jennifer Welsh, Esq., Office of the Solicitor, U.S. Department ofLabor, The Curtis Center, Suite
630E, 170 S. Independence Mall West, Philadelphia, PA I 9106-3306

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

33 FMSHRC Page 538

G;0- U.S. GOVERNMENT PRINTING OFFICE: 2011-36&-038193601