MARCH AND APRIL 2011

COMMISSION DECISIONS AND ORDERS
03-11-2011
03-11-2011
03-11-2011
03-11-2011
03-11 -2011
03-14-2011
03-14-2011
03-14-2011
03-14-2011
03-16-2011
03-17-2011
03-21-2011
03-21-2011
03-21-2011
03-25-2011

Centex Materials, LLC.
Parkwood Resources, Inc.
Darrell Lambert emp. by LVI Environmental
ARSI Corporation
Ace Pipe C1eaning
Cemex de Puerto Rico
DBS, Inc.
Colowyo Coal Company
Brown Excavation Co., Inc.
C-E Minerals
Sapphire Coal Company
Bonham Concrete, Inc.
Austin Powder Company
Drummond Company, Inc.
Sec. Labor o/b/o Mark Gray v. North
Fork Coal Corporation
03-30-2011 Conshor Mining, LLC
03-30-2011 0-N Minerals (Michigan) Company
03-30-2011 Pine Ridge Coal Company, LLC.
04-08-2011 Long Branch Energy
04-08-2011 Mountain Spring Coal Company
04-08-2011 Mark Cunningham emp. by Tri-Star USA, Inc.
04-08-2011 Wyo-Ben, Inc.
04-14-2011 Essroc Cement Corporation
04-14-2011 Carline Coal Company, Inc.
04-14-2011 P & K Sand & Gravel, Inc.
04-28-2011 Cortez Joint Venture
04-28-2011 Elk Run Coal Company, Inc.
04-29-2011 Master Products Corporation

FMSHRc
Library
601 New Jers
Suite 9500
ey Ave., NW
Washington, De 20001-2021

I

CENT 2011-194-M
PENN 2010-609
WEST 2010-1486-M
WEST 2011-193-M
WEST 2011-200-M
SE
2010-820-M
SE
2010-908-M
WEST 2010-1466
YORK 2010-239-M
SE
2010-469-M
KENT 2011-171
CENT 2010-570-M
SE 2010-468-M
SE
2010-477

Pg.539
Pg. 543
Pg.546
Pg.550
Pg. 553
Pg.556
Pg.560
Pg. 563
Pg.566
Pg. 569
Pg. 573
Pg.577
Pg. 581
Pg.585

KENT 2009-1429-D
KENT 2010-1496
LAKE 2010-941-M
WEVA 2010-1453
WEVA 2011-567
LAKE 2011-114
SE
2010-1116-M
WEST 2010-1721-M
PENN 2010-621-M
PENN 2011-172
YORK 2010-309-M
WEST 2011-576-M
WEVA 2008-1101
SE
2009-746-M

Pg.589
Pg. 603
Pg. 609
Pg.612
Pg. 615
Pg.618
Pg. 622
Pg. 625
Pg.628
Pg.631
Pg.634
Pg.638
Pg. 641
Pg. 645

ADM1NIS1RATNE LAW JUDGE DECISIONS
03-01-2011
03-01-2011
03-11-2011
03-11-2011
03-18-2011
03-28-2011
03-28-2011
03-29-2011
03-31-2011
04-06-2011
04-18-2011
04-20-2011
04-20-2011
04-21-2011
04-27-2011
04-28-2011
04-29-2011

Highland Mining Company, LLC.
Big Ridge, Inc.
Shamokin Filler Company (not final}
Hoover, Inc.
Mach Mining, LLC.
Stillhouse Mining, LLC.
Oak Grove Resources, LLC.
Picenos Brothers
Big River Mining, LLC.
Stillhouse Mining, LLC.
Tilden Mining Company, L.C.
Mize Granite Quarries, Inc. et al.
Susan A. Lucero v. Powder River Coal, LLC.
PBS Coal, Jnc./Musser Engineering, Inc.
Marfork Coal Company, Inc.
CAM Mining, LLC.
Pine Ridge Coal Company, LLC.

KENT 2009-755
Pg.657
LAKE 2009-490
Pg.689
PENN 2009-775
Pg. 725
SE 2009-600-M
Pg. 751
LAKE 2009-30
Pg. 763
KENT 2009-309
Pg. 778
SE 2009-261-R
Pg.846
SE 2009-880-M
Pg.855
WEVA 2008-1627-R Pg.859
KENT 2009-116
Pg.864
LAKE 2008-503-M
Pg.876
· Pg. 886
SE 2009-401-M.
WEST 2010-636-D
Pg.919
PENN 2004-158
Pg.946
WEVA 2009-1367-R Pg.952
KENT 2008-390-R
Pg.966
WEVA.2010-312
Pg.987

ADM1NIS1RATNE LAW JUDGE ORDERS .
04-11-2011
04-18-2011
04-19-2011

Maple Coal Company
American Coal Company
Essroc Cement Corporation

WEVA2011-1318-R Pg. 1029
LAKE 2010-315
. Pg. 1033
LAKE 2008-423-M Pg. 1037

11

Review was granted in the following cases during the months of March and April 2011:
Secretary of Labor, MSHA v. Emerald Coal Resources, LP, Docket No. PENN 2009-697.
(Judge Andrews, February 18. 2011)
Secretary of Labor, MSHA v. Jim Walter Resources, Inc., Docket No. SE 2009-881, et al.
(Judge Melick, February 3, 2011)
Secretary of Labor, MSHA v. Big Ridge, Inc., Docket Nos. LAKE 2009-490, et al. (Judge
Miller, March 1, 2011)

Review was denied in the following cases during the months of March and April. 2011:
Secretary of Labor, MSHA v. Mainline Rock and Ballast, Inc., Docket Nos. CENT 2009-588-M,
et al., (Judge Moran, January 28, 2011)
Secretary of Labor, MSHA v. Highland Mining Company, LLC., Docket Nos. KENT 2009-755,
et al. (Judge Moran, March 1, 2011)
·
Secretary of Labor, MSHA v. Shamokin Filler Company, Inc., Docket Nos. PENN 2009-775, et
al. (Judge Lewis, Order dated March 11, 2011 - not final)

lll

COMMISSION DECISIONS AND ORDERS

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

March 11, 2011
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2011-194-M
A.C. No. 41-02241-227463

V.

CENTEX MATERIALS, 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 November 18, 2010, the Commission received from
Centex Materials, LLC ("Centex") 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 (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

33 FMSHRC Page 539

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 August 4, 2010, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Penalty Assessment No. 000227463 to Centex, proposing civil
penalties for six citations. In its letter seeking reopening, the operator asserts that it timely
mailed payment for three penalties, along with the contest form for the remaining penalties to
MSHA' s St. Louis office. 1
The Secretary states that she does not oppose reopening, but notes that MSHA has no
record of receipt of the operator's contest either in the Arlington, Virginia office, where it should
have been sent, or in the St. Louis, Missouri office.

1

The Secretary confirms that payment was timely received in MSHA's St. Louis office,
but that there were no instructions as to which citations the payment was to be applied.
Consequently, MSHA applied the payment to a penalty the operator intended to contest.
Pursuant to this order, the Secretary shall reallocate the payment consistent with the operator's
penalty contest form.
33 FMSHRC Page 540

Having reviewed Centex'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.

~-

r

.

-~~~
comm~

Michael F. Duffy,

Robert F. Cohen, Jr., Commissioner

~l
Patrick K. Nakamura, Commissioner

33 FMSHRC Page 541

Distribution:
John M. Detmer
Centex Materials, LLC
3019 Alvin Devane Blvd.
Bldg. I, Suite 100
Austin, TX 78741
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 542

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

SUITE9500
WASHINGTON, DC 20001

March 11, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2010-609
A.C. No. 36-09224-210949-02

v.
PARK.WOOD RESOURCES, 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 1, 2010, the Commission received from
the Secretary of Labor a motion to reopen a penalty assessment that had become a final order of
the Commission pursuant to section 105(a) ofthe Mine Act, 30 U.S.C. § 815(a). The Secretary
indicates that the operator 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
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 543

Having reviewed the facts and circumstances of this case and the Secretary's request, we
hereby reopen this matter. Accordingly, the Secretary shall issue a new proposed penalty
assessment form to the operator. See 29 C.F.R. § 2700.25. The operator shall have 30 days from
the date of its receipt of the proposed assessment to file its contest. See 29 C.F.R. § 2700.26.

jjq,f;~

~~

Michael F. Duffy, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 544

Distribution:
Ronald M. Miller
Litigation Representative
Packwood Resources, Inc.
511 Railroad Ave.
Homer City, PA 15748.
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 545

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

March 11, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2010-1486-M
A.C. No. 45-00359-201499 A

V.

DARRELL LAMBERT, Employed by
LVI ENVIRONMENTAL, 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 8, 2010, the Commission received from Darrell
Lambert ("Lambert") a motion by counsel seeking to reopen a penalty assessment against
Lambert under section l lO(c) of the Mine Act, 30 U.S.C. § 820(c), that may have become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under the Commission's Procedural Rules, an individual charged under section 110(c)
has 30 days following receipt of the proposed penalty assessment within which to notify the
Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.
In his motion, Lambert states that he did not receive MSHA's proposed penalty
assessment, which was sent in October 2009 via Federal Express to the company's Seattle,
Washington address. Lambert explains that he was laid off from his position in February 2009,
that the company closed its Seattle office in April 2009, and that Lambert relocated to a new
position within the company in New Jersey in July 2009. Lambert states that he informed the
U.S. Postal Service of his change of address and had his mail forwarded. He asserts that he
discovered the penalty assessed against him on or around June 25, 2010, when he received a
letter forwarded by the U.S. Postal Service from the U.S. Department of Treasury informing him
of the delinquency. Lambert further states that his counsel obtained a copy of the proposed

33 FMSHRC Page 546

assessment from MSHA on June 30, 2010 and shortly filed this request to reopen. Lambert
asserts that he wishes to contest the penalties proposed against him.
The Secretary states that she does not oppose Lambert's request to reopen the penalty
assessment.
Here, Lambert never received notification of the proposed penalty assessment as required
under Commission Rule 25 . 1 Under the circumstances of this case, we conclude that Lambert
was not notified of the penalty assessment, within the meaning of the Commission's Procedural
Rules, until at least June 25, 2010, when he received a copy of the assessment from MSHA.
Under the circumstances of this case, we conclude that Lambert timely contested the proposed
penalty, once he had actual notice of the proposed assessment. See John R. Hurley, 31 FMSHRC
1331, 1332 (Dec. 2009); Michael Cline, 31 FMSHRC 354, 355-56 (Mar. 2009); Stech, employed
by Eighty-Four Mining Co., 27 FMSHRC 891, 892 (Dec. 2005) (all concluding that the proposed
assessment was not final because the agent did not properly receive the proposed assessment and
construing the agents' submission as a timely contest).

1

Commission Procedural Rule 25 states that the "Secretary, by certified mail, shall
notify the operator or any other person against whom a penalty is proposed of the violation
alleged, the amount of the proposed penalty assessment, and that such person shall have 30 days
to notify the Secretary that he wishes to contest the proposed penalty assessment." 29 C.F.R
§ 2700.25 (emphasis added).

33 FMSHRC Page 547

Accordingly, the proposed penalty assessment is not a final order of the Commission.
We remand this matter to the Chief Administrative Law Judge for assignment to a judge. This
case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Consistent with Rule 28, the Secretary shall file a petition for assessment of penalty
within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Michael F. Duffy, Commissione),"

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 548

Distribution:
Laura E. Beverage, Esq.
Jackson Kelly PLLC
1099 18th Street, Suite 2150
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. 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., z5t1t 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 549

FEDERAL

MINE

SAFETY

HEALTH

AND

601

NEW

JERSEY
SUITE

SECRETARY
MINE

COMMISSION

NW

AVENUE,
9500
DC

WASHINGTON,

March

REVIEW

20001

11,2011

OF LABOR
AND

SAFETY

ADMIN/STRATION

HEALTH

(MSHA)
Docket
A.C.

V.

No.

WEST

2011-193-M

05-00037-2235498UJ

No.

CORPORATION

ARSI

BEFORE:

Jordan, Chairman;

Duffy, Young, Cohen,

and

Nakamura,

Commissioners

ORDER

BY

COMMISSION:

THE

This

arises

under

the Federal

Safety and Health Act of 1977, 30 U.S.C.
received
from
(2006) ("Mine Act"). On November
9, 2010, the Commission
Arsi Corporation a motion
that had become
through counsel to reopen a penalty assessment
a
final order of the Commission
to
section
of
the
Mine
30
U.S.C.
pursuant
105(a)
Act,
§ 815(a).
On December
received a response
from the Secretary of Labor
8, 2010, the Commission
stating
§ 801

that

matter

et seq.

she does

not

Under

oppose

section

penalty must

have

held, however,

that

assessments

that

a

We

uncontested

See

Res., Inc., 15 FMSHRC

final

section

final

order

29 C.F.R.

default

is

Rules
a

Procedure

of the Commission

§ 2700.

by the Federal
that

105(a) orders,

of Civil

Rules
a

of the Mine

final

is deemed

reopen
Federal

105(a)

harsh

the

to reopen

If the operator
fails
order ofthc
Commission.

assessment.

reopen
Jim Walter

the request

in

assessment.

Act, an operator

notify the Secretary of Labor

penalty

from

Mine

later than

no

to

the

notify

30 U.S.C.

who
30

wishes

days after

have

become

final

we

Commission

(May 1993) ("JWR").

the

Commission

under

which,

for

the basis

has

found

mistake,

a

receiving

proposed

the proposed

penalty

assessment

jurisdiction
possess
orders
under
section

to

105(a).

In

evaluating requests
guidance in Rule 60(b) of the

example, a party could
of

contest

Secretary, the proposed
§ 815(a).

appropriate circumstances,

782, 786-89

to

inadvertence,

be entitled

to

excusable

to

relief

neglect.
and its Judges shall be guided so far as practicable
l(b) ("the Commission
of Civil Procedure"); JWR, 15 FMSHRC
at 787.
We have also observed
remedy and that, if the defaulting party can make a showing of good cause
on

33 FMSHRC

Page

550

or

for

a

merits

timely respond, the case may be reopened and appropriate proceedings on
1529, 1530 (Sept. 1995).
permitted. See Coal Prep. Servs., Inc., 17 FMSHRC

failureto

the

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

F•q•uffy,Commissioner

Michael

You

33 FMSHRC

Robert

F.

Cohen, Jr., Commissioner

Patrick

K.

Nakamura, Commissioner

Page

551

•

N,•

Distribution:
Nichelle Young, 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
v.s. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 251h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC Page 552

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

March 11, 2011
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2011-200-M
A.C. No. 02-00150-229976 EDN

v.
ACE PIPE CLEANING

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 November 12, 2010, the Commission received from
Ace Pipe Cleaning 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
December 17, 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
33 FMSHRC Page 553

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 penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

M~~t;~
~~~
Michael F. Duffy, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 554

Distribution:
Mark N. Savit, Esq.
Patton Boggs LLP
1801 California Street, Suite 4900
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlingto~ 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 555

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

March 14, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2010-820-M
A.C. No. 54-00001-216737

v.
CEMEX de PUERTO RICO

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 June 1, 2010, the Commission received from Cemex de
Puerto Rico ("Cemex") a request 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"); 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 556

On April 13, 2010, the Department of Labor's Mine Safety and Health Administration
(''MSHA") issued Proposed Penalty Assessment No. 000216737 to Cemex, proposing penalties
for 11 citations issued to the operator. By a letter dated May 25, 2010, Cemex requests
reopening so that it can contest two of the penalties. Cemex states that the company official to
whom the assessment was directed was "out the company." The Secretary originally opposed
reopening on the ground that Cemex's explanation was unclear regarding whether the official
was out temporarily or permanently and did not address why another individual could not have
filed the contest on a tinlely basis.
After seeking and obtaining Commission permission to file a late reply addressing the
Secretary's concerns, Cemex explained that the assessment was received by Cemex and put on
the official's desk in its unopened envelope because he was expected back soon from a business
trip. He did not return as expected, however, as he instead took an unscheduled vacation and
thus did not return until near the end of the 30-day period. His assistant did not realize that the
envelope containing the assessment was of a time sensitive nature. Consequently, the assessment
was not acted upon until after the official's return, at which point Cemex promptly filed its
motion to reopen. Jn light of this explanation, the Secretary no longer opposes reopening of the
assessment as to the two penalties.

33 FMSHRC Page 557

Having reviewed Cemex' s request and the Secretary's. responses, 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

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 558

Distribution:
Carlos Collazo
Cemex de Puerto Rico
Rd., #123 Km. 8.0
Ponce, PR 00732
Keith E. Bell, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
.Arlington, VA 22209-2296
Melanie Garris
Offic_e of Civil PeQ.alty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
ChiefAdministrative Law fadge 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 559

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

March 14, 2011
SECRETARY OF LABOR,
MlNE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2010-908-M
A.C. No. 09-01020-212332 CSA

V.

DBS, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COM~ISSION:
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 2, 2010, the Commission received from
DBS, Inc., a request to reopen a penalty assessment that had become a final order of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). On July 15, 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 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 approp:iiate 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 560

. 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.

~

Micbae~~
\

Robert F. Cohe~ Jr., Commissioner

Patrick K. Nakamura, Commissioner

33 FMSHRCPage 561

Distribution:
Nichelle Young, 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
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 562

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

March 14, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2010-1466
A.C. No. 05-02962-215776

V.

COLOWYOCOALCOMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine S¢'ety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On July 7, 2010, the Commission received from
Colowyo Coal Company 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. § 8l 5(a).
On July 21, 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 563

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).

of

Having reviewed the facts and circumstances 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 564

Distribution:
Christopher G. Peterson, Esq.
Jackson Kelly PLLC
1099 18th 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 565

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

March 14, 2011
SECRETARY OF LABOR,
MINE SAFETY ANDHEALTH
ADMJNISTRATION (MSHA)

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

V.

BROWN EXCAVATION COMPANY, INC.

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

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 May 4, 2010, the Commission received from Bro~n
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). 1
On May 26, 2010, the Secretary of Labor filed oppositions to the operator's request to reopen.
On January 6, 2011, we issued an order directing Brown to show cause within 30 days of
the date of the order why its request to reopen should not be denied as moot. We noted that a
review of the Data Retrieval System maintained by the Department of Labor's Mine Safety and
Health Administration ("MSHA") revealed that the operator has paid the civil penalties that are
the subject of its request to reopen.

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).

33 FMSHRC Page· 566

Brown has filed no response to the show cause order. Accordingly, we deny Brown's
request to reopen as moot.

Mich~

Robert F. Cohen, Jr., Commissioner

33 FMSHRC Page .567

Distribution:
Jodi Flaherty
Brown Excavation Company, Inc.
2735 State Route 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 568

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

March 16, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2010-469-M
A.C. No. 09-00188-198565

v.
C-E MINERALS

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 March 1, 2010, the Commission received from ·
C-E Minerals ("C-E") a request to reopen a penalty assessment that had become a final order of
the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
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 569

On September 29, 2009, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Proposed Assessment No. 000198565 to Mullite Company of
America, proposing a civil penalty for one citation. In its letter seeking reopening, C-E states
that the "citation was contested and appears in [MSHA's] Mine Data Retrieval System as
contested[,] but apparently was not received within the 30 day allowed time frame." The
operator further provides its defense of the violation. C-E does not explain the relationship
between it and Mullite Company of America.
On March 18, 2010, the Commission received a response from the Secretary of Labor
stating that she opposes the operator's request to reopen the assessment. The Secretary states that
the proposed assessment was delivered to, and signed for by, the operator on October 6, 2009.
Attached to the Secretary's opposition is a copy ofMSHA's delinquency notice dated
December 23, 2009. The Secretary states that the operator did not mail its contest until
December 29, 2009, and fails to explain why it did not contest the assessment within 30 days.
Having reviewed C-E's request to reopen and the Secretary's response, we conclude that
the operator has not provided a sufficiently detailed explanation for its failure to timely contest
the proposed penalty assessment. C-E's statement that it contested the citation is inconsistent
with the record. According to the Secretary, C-E's contest was filed more than a month and a
half after the proposed assessment became a final order. In addition, C-E's failure to explain
why it did not contest the proposed assessment on time does not provide the Commission with· an
adequate basis to reopen. Furthermore, C-E has failed to explain why it delayed approximately
two months in responding to the delinquency notice sent by MSHA. 1 Accordingly, we hereby ·
deny without prejudiceC-E's request. See Petra Materials, 31FMSHRC47, 49 (Jan. 2009);
Eastern Assoc. Coal, LLC, 30 FMSHRC 392, 394 (May 2008).

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., 31FMSHRC8, 10-11(Jan.2009).
33 FMSHRC Page 570

The words ''without prejudice" mean C-E may submit another request to reopen this case
so that it can contest the penalty assessment. 2 Any such request must be filed within 30 days of
the date of this order. Any such request filed after that time will be denied with prejudice.

Patrick K. Nakamura, Commissioner

2

IfC-E 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. C-E 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. C-E should also submit copies of supporting documents with its request to
reopen. C-E should further explain in similar detail why it delayed in responding to MSHA's
delinquency notice. In addition, C~E should explain the relationship between it and Mullite
Company of America. Finally, C-E should discuss whether it has already paid the penalty
proposed by the Secretary.
33 FMSHRC Page 571

Distribution:
Sam Holden
C-E Minerals
P.0.Box37
Andersonville, GA 31711
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Departmen~ 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 572

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

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

Docket No. KENT 2011- 171
A.C. No. 15-19297-215828

v.

Docket No. KENT 2011-172
A.C. No. 15-02057-215805

SAPPHIRE COAL COMPANY

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 November 3, 2010, the Commission received motions by
counsel to reopen penalty assessments issued to Sapphire Coal Company ("Sapphire") that
became 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 io notify the Secretary, the proposed penalty assessment
is deemed a .fmal 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

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers KENT 2011-171 and KENT 2011-172, both captioned Sapphire
Coal Company, and involving similar procedural issues. 29 C.F.R. § 2700.12.
33 FMSHRC Page 573

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, ifthe defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
On April 6, 2010, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment Nos. 000215828 and 000215805 to Sapphire. On June
30, 2010, MSHA issued delinquency letters in both cases. Sapphire asserts that it timely faxed
contest forms to MSHA's Civil Penalty Compliance Office on April 14, 2010- six business days
after issuance of the proposed assessment. As support, Sapphire submits, in part, copies of the
documents allegedly filed, including the proposed assessment forms, and a facsimile
confirmation page. 2 Sapphire paid the remaining uncontested citations on May 10, 2010.
Although the Secretary states that MSHA has no record of receiving penalty contest
forms for the referenced cases, she does not dispute Sapphire's assertions. The Secretary
nevertheless opposes Sapphire's request to reopen on the grounds that Sapphire has failed to
explain why it waited four months after MSHA issued the delinquency letters to file its motions
to reopen.
Having reviewed Sapphire's request to reopen and the Secretary's response thereto, we
conclude that Sapphire has failed to explain why it delayed approximately four months in
responding to the delinquency notice sent by MSHA.3 Therefore, the operator has failed to
provide an adequate basis for the Commission to reopen the penalty assessments. Accordingly,
we hereby deny without prejudice Sapphire's requests to reopen. FKZ Coal Inc., 29 FMSHRC
177, 178 (Apr. 2007); Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009). The words "without
prejudice" m_ean that Sapphire may submit another request to reopen Assessment Nos.

2

Although the facsimile confirmation page demonstrates that something was faxed to
MSHA's Civil Penalty Compliance Office, the confirmation fails to indicate what was being
faxed or the specific case numbers involved.
3

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, 1316-17 (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).
33 FMSHRC Page 574

000215828 and 000215805.4 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.

~

MichaeJF.~

.·.--

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

4

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 439, 440 n. l (June 2008). Accordingly, where the Secretary raises the issue of the
delay between receipt of a delinquency letter and filing of the request to reopen, an operator who
does not explain why it took as long as it did to request reopening, after it was informed of a
delinquency, does so at its peril. Sapphire should also submit copies of supporting documents
with its request to reopen.
33 FMSHRC Page 575

Distribution:
Robert H. Beatty, Jr., Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
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 576

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

March 21, 2011
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2010-570-M
A.C. No. 34-00353-198933

v.
BONHAM CONCRETE, 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 29, 2010, the Commission received from
Bonham Concrete, Inc. ("Bonham Concrete") request to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).

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 577

On Septeinber 30, 2009, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Proposed Assessment No. 000198933 to Bonham Concrete,
proposing civil penalties for 12 citations. In its letter seeking reopening, Bonham Concrete states
that it did not request a hearing at the time it received the proposed assessment because it thought
that the penalty was an "automatic fine" and "did not know [it] could ask for a reduction" of the
penalty.
On April 7, 2010, the Commission received a response from the Secretary of Labor
stating that she opposes the operator's request to reopen the assessment. The Secretary states that
ignorance of the law and inability to pay are not permissible grounds for reopening. She notes
that the proposed assessment itself, the Commission's procedural rules and MSHA's rules make
it clear that the operator has 30 days to file a contest. She also notes that the operator has been in
business since 1974, has successfully contested proposed assessments in the past, and has two
pending Commission proceedings, Docket Nos. CENT 2008-550 and 551-M.

Having reviewed Bonham Concrete's request to reopen and the Secretary's response, we
conclude that the operator has not provided a sufficiently detailed explanation for its failure to
timely contest the proposed penalty assessment. Bonham Concrete's statement that it did not
know it could ask for a reduction in the penalty does not provide the Commission with an
adequate basis to reopen. Specifically, Bonham has failed to explain why it failed to file a
contest of the proposed assessment at issue in this proceeding, when it previously has
successfully contested proposed assessments in Docket Nos. CENT 2008-550 and 551-M.
Furthermore, Bonham Concrete has failed to explain why it delayed approximately three months
in responding to the delinquency notice sent by MSHA. 1 Accordingly, we hereby deny without
prejudice Bonham Concrete's request. See Petra Materials, 31FMSHRC47, 49 (Jan. 2009);
Eastern Assoc. Coal, LLC, 30 FMSHRC 392, 394 (May 2008).

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., 31FMSHRC8, 10-11(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).
33 FMSHRC Page 578

The words ''without prejudice" mean Bonham Concrete may submit another request to
reopen this case so that it can contest the penalty assessment.2 Any such request must be filed
within 30 days of the date of this order. .Any such request filed after that time will be denied with
prejudice.

..······.··e~

M~-:C¥r=

Robert F. Cohen, Jr., Commissioner

r~~
Patrick K. Nakamura, Commissioner

2

If Bonham Concrete 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. Bonham Concrete 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. Bonham Concrete should also submit copies of
supporting documents with its request to reopen and specify which proposed penalties it is
contesting. Bonham Concrete should further explain in similar detail why it delayed in
responding to MSHA's delinquency notice.

33 FMSHRC Page 579

Distribution:
Gerald Hope, President
Bonham Concrete, Inc.
P.0.Box489
Bonham, TX 75418
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 580

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

March 21, 2011
SECRETARY OF LABOR
MINE SAFETY AND HEALIB
ADMINISTRATION (MSHA)
Docket No. SE 2010-468-M
A.C. No. 40-02036-0201293 E24

v.
AUSTIN POWDER COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY TIIE 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 1, 2010, the Commission received from
Austin Powder Company ("Austin Powder") a motion by counsel to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
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 581

On October 22, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000201293 to Austin Powder for two citations that
MSHA had issued to the operator. Austin Powder states that it sent an email to its counsel to an
inactive account, resulting in the late filing of its contest. Austin Powder contends that it became
aware of its mistake when MSHA notified it of the delinquency. 1
On March 23, 2010, the Commission received a response from the Secretary indicating
that she does not oppose the operator's motion. However, she notes that the operator should
have been alerted at the time that it sent the email to its counsel that the email did not properly
transmit and warns that she may oppose future requests involving similar facts.

1

In its motion, the operator refers to attachments relating to the email correspondence

and the delinquency notice, but did not initially attach those documents to its motion. We
caution counsel to ensure that its filings to the Commission are accurate and complete.
33 FMSHRC Page 582

Having reviewed Austin Powder'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

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 583

Distribution:
Nichelle Young, 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
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrq.tive 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 584

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

March 21, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2010-477
A.C. No. 01-02901-198781

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 3, 2010, the Commission received from
Drummond Company, Inc., 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). On April 1, 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 585

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.

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 586

Commissioner Cohen, dissenting:
I cannot agree with my colleagues' determination that the motion filed by Drummond
Company is sufficient to reopen a penalty assessment that has become final under section 105(a)
in this case.
I conclude that Drummond has failed to provide a sufficient explanation for its failure to
timely contest the proposed penalty assessment. In the letter, Drummond's counsel's explained
that on the day that company management directed him to contest the citations in the proposed
assessment, he was with his wife, who was iii the hospital undergoing surgery. Over the next
several days, counsel cared for his wife as she recovered. He then states, "[d]uring that time, the
email eluded my notice, and, as a result, I was unaware of its existence and did not file the notice
of contest in a timely manner."
MSHA issued the Proposed Assessment in this case on September 30, 2009. Drummond
filed its motion to reopen on March 2, 2010. Presumably during those five months, MSHA sent
Drummond the usual delinquency notice informing the company that the proposed assessment
had become a final order of the Commission. Although neither Drummond nor the Secretary has
furnished us the delinquency notice in this case, I would assume from experience that it would
have been sent around the middle of December 2009.
Although counsel's losing track of management's email to him as he was caring for his
wife is both understandable and excusable, it does not account for the five-month delay between
the issuance of the proposed assessment, nor does it account for Drummond's inaction upon
receiving the delinquency notice from MSHA. Hence, I conclude that grounds for reopening
have not been established. See CS.A. Mining, Inc .. 31 FMSHRC 773, 775 (July 2009); Higgins
Stone Co., 32 FMSHRC 33, 34-35 (Jan. 2010). The Commission should deny this motion
without prejudice.

Robert F. Cohen, Jr., Commissioner

33 FMSHRC Page 587

Distribution:
Damon J. Boiles, III, Esq.
1000 Urban Ctr., Dr.
Suite 300
Birmingham, AL 35242
W. Christian Sc~umann, 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 588

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

March 25, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION (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

ORDER ON PETffiON FOR RECONSIDERATION
AND APPLICATION FOR STAY PENDJNG APPEAL
BY: Jordan, Chairman; Duffy, Young, 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 7, 2011, the
Commission issued a decision (''Decision") reversing an administrative law judge's order which
had dissolved his previous order implementing the temporary economic reinstatement of miner
Mark Gray with North Fork Coal Corporation (''North Fork"). 33 FMSHRC 27 (Jan. 2011).
On January 18, 2011, North Fork, pursuant to Commission Procedural Rule 78(a), 29 C.F.R.
§ 2700.78(a), timely petitioned the Commission to reconsider the Decision. On January 21, 2011,
North Fork also applied to the Commission to stay the Decision pending federal court review.
On February 1, 2011, the Secretary of Labor filed a response in opposition to the stay request.
On February 4, 2011, Gray filed responses in opposition to North Fork's petition for
reconsideration and its application for stay.
For the reasons that follow, we (1) grant the petition for reconsideration in part and (2)
deny the application for stay pending appeal.

33 FMSHRC Page 589

I.
Factual and Procedural Backeround
The background of Gray's discrimination claims, brought under section 105(c) of the Mine
Act, 30 U.S.C. § 815(c), are set forth in the Commission's decision reversing the judge. See
Decision at 1-3. Pursuant to section 105(c)(2), upon the application of the Secretary, on
September 8, 2009, Administrative Law Judge Gary Melick ordered Gray temporarily reinstated
to his position at North Fork after he had been discharged by the operator. 31 FMSHRC 1143,
1146 (Sept. 2009) (ALJ). The three parties - the Secretary of Labor, Gray, and North Fork- each
represented by separate counsel, agreed that instead of returning to work at North Fork, Gray
should be economically reinstated. Consequently, on September 17, 2009, the judge issued a
supplemental order setting forth the terms of the economic reinstatement to which the parties had
indicated that they had agreed, which was to be effective as of September 14, 2009. 31 FMSHRC
1167, 1168 (Sept. 2009) (ALJ).
On November 23, 2009, the Secretary informed the judge that she had notified 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 31FMSHRC1420 (Dec. 2009)
(ALJ). On December 2, 2009, the judge held that under the circumstances the order of temporary
reinstatement must be dissolved and the temporary reinstatement proceeding dismissed. Id.
On December 30, 2009, Gray, through his own counsel, filed
action on his own behalf pursuant
1
to section 105(c)(3) of the Mine Act, 30 U.S.C. § 815(c)(3).

an

. Both the Secretary and 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. The
Commission granted the petitions, and in the Decision, a Commission majority reversed the
. judge's decisi~n to dissolve reinstatement. The majority held that a miner's right to temporary
reinstatement continues until the Commission issues a final order on the merits of the miner's
allegations of discrimination, whether that order be issued under section 105(c)(2) or section
105(c)(3) of the Mine Act. See Decision at 7-16 (opinion of Chairman Jordan and Comm'r
Nakamura), 19-26 (opinion ofComm'r Cohen).

In reversing the judge, the Commission majority ordered that Gray be economically
reinstated retroactive to September 14, 2009. Id. at 18, 19. That date was the date specified in the
judge's supplemental order as the first date of economic reinstatement. The Commission majority
also stated that reinstatement was to be at Gray's former rate of pay, including any pay increases,
bonuses, and other benefits. Id. at 18, 19. This was based on the judge's supplemental order.
See 31 FMSHRC at 1167-68.

1

A hearing in the case, docketed with the Commission at No. KENT 2010-0430-D, was
recently held before another Commission administrative law judge. The issuance of her decision
is currently pending.
33 FMSHRC Page 590

II.

Disposition
A.

The Petition for Reconsideration

North Fork requests that the Commission reconsider its Decision and modify the economic
reinstatement it ordered both retroactively and going forward. North Fork learned during the
discrimination case on the merits that Gray had been working at another mining job. NF Pet.
at 3 n. l. North Fork contends that it first became aware of Gray's employment in August 2010
when he answered interrogatories that had been served during the previous January. Id. At the
December 2010 hearing on the merits of his discrimination claim, Gray testified that he had been
continuously employed by one or more mining companies since June 2009, the month after he had
been terminated from his position at North Fork. Id. at 3 & Ex. A at 223 (KENT 2010-430-D
hearing transcript). North Fork submits that to provide full economic reinstatement to the miner
in these circumstances is contrary to the intent of the temporary reinstatement provisions of the
Mine Act, and that, accordingly, the Decision should be modified so that North Fork's obligation
is only to put Gray in the same economic position he would have been in had North Fork not
terminated his employment. Id. at 4-6.

In his response, Gray urges the Commission to deny the petition for reconsideration. Gray
first contends that the issue could have been raised by North Fork prior to the Commission's
issuance of the Decision, and because it was not, .the Commission does not have jurisdiction to
consider the issue. G. Resp. at 7-9. Gray further contends that the Commission can order nothing
but full adherence to the judge's temporary economic reinstatement order, because the order was
the product of an agreement between the parties that has contractual effect. Id. at 9-11. Gray
reports that he has earned significantly less in the other positions than he would have had while
working at Nor,th Fork, and that he did not receive health insurance at those positions as he did
when he worked for North Fork - a major difference given that Gray has two young children and
his wife suffers from a serious ailment. Id. at 4.
The Secretary, in her response in opposition to the stay request, stated that she "has not
taken a position" on the petition for reconsideration. S. Resp. at 4 n.2. The Secretary has filed
nothing further regarding the petition.
Pursuant to section I 05(c)(2), the judge's original September 8, 2009 order of
reinstatement established that Gray had the right to return to his position at North Fork while his
discrimination claim was pending, and that during that time North Fork was obligated to permit
him to work at that position as if his termination had never occurred and to pay him accordingly.
The parties subsequently agreed that Gray's physical presence at the mine would not be required,
but that North Fork would still compensate him as if he was working at the mine. This type of
economic reinstatement is not unusual. See, e.g., Secy on behalfof York v. BR&D Enterprises,
Inc., 23 FMSHRC 386 (Apr. 2001).

33 FMSHRC Page 591

The parties, consistent with the Commission's procedural rules and the judge's continuing
jurisdiction over the matter, submitted their agreement to the judge and moved that it be entered
as an order in the case. See 29 C.F.R. § 2700.10 (a) ("[a]n application for an order shall be by
motion ... and shall set forth the relief or order sought") and§ 2700.45(e)(4) (except during
appellate review of an order temporarily reinstating a miner, a judge retains jurisdiction over the
reinstatement proceeding even after he has issued his order). Because the economic reinstatement
agreement was subsumed in the judge's order, and described how the parties proposed to
implement relief ordered by the judge pursuant to the Mine Act, we do not believe we can ignore
that statute in determining the construction, application, and effect of the agreement.
Consequently, we reject Gray's argument that the issue raised in North Fork's petition should be
decided solely by reference to contract law.
North Fork argues that under the Mine Act, Gray's earnings while he is employed
· elsewhere during his economic reinstatement should be used to offset the amounts he is owed by
North Fork. NF Pet. at 4-5. North Fork confuses the legal principles that apply to back pay
awards if and when the miner succeeds in his discrimination complaint on the merits, with the
legal principles governing the wholly separate temporary reinstatement proceeding.
With regard to the former, the Commission has noted that the provision for back pay and
other remedies in section I 05(c) awarded once it has been established that a miner was
discriminated against, is modeled after the remedial provisions of the National Labor Relations
Act (''NLRA"), 29 U.S.C. § 160(c). Sec '.v on behalf of Gooslin v. Kentucky Carbon Corp.,
4 FMSHRC J, 2 n.4 (Jan. 1982}: Under that statute, concepts of offset and the duty to mitigate
damages are routinely applied to back pay awards, and the Commission has incorporated those
concepts in computing back pay awards under section 105(c ). See, e.g., Secy on behaif· of
Dunmire v. Northern Coal Co., 4 FMSHRC 126, 142-44 (Feb. 1982). We have recognized that
back pay is designed to make the miner as nearly whole as possible for the losses he or she has
suffered betw~en the time the miner was discriminated against and the time his or her claim of
discrimination was upheld. Id. at 143. If the miner does not prevail, the miner is due no award.

fu contrast, as is explained at length in the Decision, the purpose of temporary
reinstatement is to put the miner back to work as soon as possible so that he or she can resume
earning a living while the discrimination case is heard. Decision at 14-15 (Chairman Jordan and
Comm'r Nakamura), 25-26 (Comm'r Cohen). The temporary reinstatement provisions
contemplate that the miner will provide the operator labor in return for wages and benefits. The
issue of back pay usually does not arise since the miner is not compensated for the earlier period
of time between termination and the judge's order temporarily reinstating him or her. 2

2

A claim by the miner for compensation for the time between his or her termination and
a return to work under a reinstatement order could be heard later, as part of the discrimination
case on the merits. Should the miner prevail, the relief would be crafted with the intention of
33 FMSHRC Page 592

Conversely, ifthe operator chooses to pay the miner while foregoing the miner's labor, there is no
right for the operator to seek reimbursement from the miner should the miner not eventually
prevail on his or her discrimination claim.
Consequently, we reject the notion that the considerations which shape back pay award
amounts, also apply, as a matter oflaw, to the economic reinstatement order before us. Unlike
back pay awards, Commission judges do not decide the tenns.of economic reinstatement
agreements. The agreement which formed the basis of the judge's order was arrived at after
negotiations between the parties. Moreover, we are cognizant of the fact that it was North Fork's
decision to offer economic reinstatement in lieu of actual reinstatement that gave rise to the
retroactive pay relief that North Fork now seeks to challenge.
The basis for the objection which North Fork raises in its petition is that, from the outset
of bis economic reinstatement, Gray was working at other mines, and therefore to require payment
· of full wages and benefits to Gray results in a windfall to him. NF Pet. at 4. However, it was
North Fork that proposed economic reinstatement and nothing would have prevented North Fork
in September 2009, from negotiating an agreement that adjusted payments to Gray in the event he
obtained alternative employment during the period oftemporaryrelie£3
Our analysis of the amounts due to Gray involves three separate periods of time. The first

time frame extends from September 14, 2009, until December 2, 2009, the point atwhich,
presumably, North Fork stopped making.payments because the judge had dissolved the order of
·temporary reinstatement. 4 North Fork states that it has fully compensated Gray, in accordance
with the terms of the economic reinstatement order, for that period of time. NF Pet. at 3. This

making the miner whole, with back pay for the entire period he or she was out of work, less
appropriate offsets. See Kentucky Carbon, 4 FMSHRC at 1-2; Northern Coal, 4 FMSHRC at
144.
3

We note that Gray testified at the September 2, 2009 temporary reinstatement hearing
and was cross-examined at length by counsel for North Fork, but the subject of what, if any,
work Gray had done since being terminated by North Fork four months earlier was never raised.
Tr. 60-90. After the judge ordered temporary reinstatement on September 8, 2009, the counsel
for North Fork contacted the counsel for Gray and raised the issue of temporary reinstatement
because "North Fork did not want Mr. Gray back at the mine." G. Resp., Aff. of Tony Oppegard
at 1.
4

We reject Gray's argument that the Commission lacks jurisdiction to consider the
petition for reconsideration because North Fork could have raised the same argument earlier in
the proceeding. After the judge dissolved the temporary reinstatement order, North Fork ceased
making payments and, therefore, had no reason to seek a forum in which to argue that any
payments owed to Gray under the economic reinstatement agreement should be offset by his
earnings from alternate employment.
33 FMSHRC Page 593

contention has not been disputed by Gray. Assuming that is the case, our Decision should not be
read to require any further payment by North Fork; however, neither has North Fork the right to
recover or "clawback" some of what it paid Gray, based on earnings he received elsewhere, for
that period of time.
The second time period runs from December 2, 2009 (the point at which North Fork
stopped making payments because the order of temporary reinstatement had been dissolved) until
January 7, 2011 (when we reversed the judge's order dissolving temporary reinstatement) hereinafter "the Interim Period." While our decision awarded relief retroactively, under the facts
of this case, as now further explained by the parties, we conclude it would be inequitable to
blindly apply the terms of the economic reinstatement order during this Interim Period, which
largely encompasses the time during which the Commission was considering Gray's appeal.
The Commission has recognized that "so long as our remedial orders effectuate the purposes of
the Mine Act ... we possess considerable discretion in fashioning remedies appropriate to varied
and diverse circumstances." Northern Coal, 4 FMSHRC at 142.
In the context of discrimination remedies, retroactive relief is generally awarded only to
the extent that it is appropriate, and the equitable nature of the remedies ordered are considered in
determining which remedies should apply retroactively. See Los Angeles Dep 't of Water & Power
v. Manhart, 435 U.S. 702, 718-23 (1978) (vacating order granting retroactive relief under
Title VII). Generally, a ruling granting temporary ei;onomic relief does not engender a large
retroactive pay award. This is because most temporary reinstatement cases are resolved quickly,
due to the strict deadlines in the Commission's procedural rules.j Although we determined it was
appropriate to apply our Decision retroactively, we appreciate that this presents the unusual
situation of imposing significant retroactive liability in a context where parties would not
normally have anticipated such a result.
Moreover, it is understandable that North Fork did not seek to modify the economic
reinstatement order when it learned of Gray's other employment in August 2010. At that time, it
was not liable for any economic reinstatement payments, as the judge's order had been dissolved.

5

For example, 29 C.F.R.§ 2700.45(c) and (e), requires that a hearing on an application
for temporary reinstatement must be requested within 10 calendar days following receipt of the
Secretary's application for temporary reinstatement, the hearing must be held within 10 calendar
days following receipt of the request, and the judge must issue a written order within 7 calendar
days following the close of the hearing. A party seeking review of such an order mus-c petition
the Commission within 5 business days following receipt of the order; briefing is expedited; and
the Commission's decision must generally be rendered within 10 calendar days of the close of
the briefing period. 29 C.F.R. § 2700.45(f). This appeal did not fall under this procedural rule
because it did not involve review of an order "granting or denying an application for temporary
reinstatement," but instead concerned the Secretary's petition for discretionary review of the
judge's action in dissolving the order of economic temporary reinstatement and dismissing the
temporary reinstatement proceeding.
33 FMSHRC Page 594

There was no need to request a modification. Indeed, it is not even clear whether such a
modification request could have been successful, because due to the dissolution of the order,
objections regarding standing and mootness might have been raised. 6 Consequently, we conclude
that offsetting the temporary reinstatement award by the amount of wages Gray earned during this
period of time is appropriate.
We view the third time period as commencing when the Decision was issued on January 7,
2011, reversing the judge_'s order dissolving temporary reinstatement. From that date, going
forward, we conclude that the judge's earlier supplemental order incorporating the parties'
agreement should be applied, with no offset. The obligation to comply with the terms of that
order as written, with no offset, will continue unless and until the parties negotiate a new
agreement and it is entered as a superceding order by the judge, or either party invokes the judge's
continuing jurisdiction and the judge modifies or rescinds the existing order. In the event a
motion is submitted to modify or rescind the previously entered consent order, the judge is
required to examine all the relevant circumstances, in accordance with section 105(c) of the Mine
Act, and not just whether the miner or operator still consents to it.
Accordingly, we grant North Fork's petition in part and modify the Decision as follows:

1. For the period beginning September 14, 2009 (the date th.e judge's order of economic
reinstatement took effect), until the date ofthejudge's dissolution of the economic reinstatement
order on December 2, 2009, North Fork was obligated to pay Gray:pursuant to the terms of the
judge's order of economic reinstatement. If it did so, it has no additional monetary liability to
Gray for that period of time. North Fork has no right to recover from Gray any money based on
· earnings he received elsewhere during thfa period.
2. For the period beginning December 2, 2009, untilJanuary 7, 2011, the date of the
Decision (the period we have characterized as "the Interim Period"), North Fork shall pay Gray
pursuant to the terms of the judge's order, offset by his compensation and benefits from
employment during that period. Because the record in this case does not reflect the amount of
compensation and benefits Gray earned from December 2, 2009, until January 7, 2011, we are
remanding this matter to the judge for the computation of the net amount Gray is owed for the
Interim Period.

6

Commissioner Cohen postulates that if the judge had not dissolved the order of
economic reinstatemen~ Gray would have received economic reinstatement in accordance with
the agreement of the parties, with no offset for any other work he may have been doing "at least
through the date" of the decision of the judge who is hearing the case on the merits. Slip op.
at 12. We question whether North Fork, if it was still under the order to pay Gray, would have
taken no steps to modify that economic reinstatement order once it discovered in August 2010
that Gray was working at a second job.
33 FMSHRC Page 595

3. For the period from January 7, 2011, through the end of Gray's temporary economic
reinstatement, North Fork shall pay Gray pursuant to the terms of the judge's September 8, 2009
order (unless that order is modified upon motion of a party) with no offset from Gray's other
employment.
This case is remanded to Judge Melick. Without waiting to hear from the judge, the
parties should begin negotiating the amounts Gray is owed by North Fork consistent with the
Decision as modified. These amounts would be payments pursuant to the terms of the economic
reinstatement agreement (including for any benefits which Gray was or is being deprived of while
he foregoes working at North Fork), as offset by his compensation (including the value of benefits
received) from employment during the Interim Period only. In the event that the parties are
unable to come to an agreement regarding those amounts within 20 days of the date of this order,
they shall report so to the judge, who should expeditiously resolve any dispute and order the
implementation of the Decision as modified. 7

B.

The Application for Stay Pendin& Appeal

We read North Fork's application for a stay as totally independent ofits petition for
reconsideration.· Regardless of the result ofits petition for reconsideratiou, North Fork is urging
the Commission to stay the effect of the Decision in its entirety while North Fork pursues its
appeal rights under the Mine Act.
Rule 18· of the Federal Rules of AppeJlate Procedure provides that "'[a] petitioner must
ordinarily move first before the agency for a stay pending review of its decision or order." In
Secretary on behalf ofPrice and Vacha v. Jim Walter Resources, Inc., 9 FMSHRC 1312 (Aug.
1987), the Commission held that a party seeking a stay must satisfy the factors set forth iu
Virginia Petrqleum Jobbers Association v Federal Power Commission, 259 F.2d 921 (D.C. Cir.
1958): (I) a likelihood that the party will prevail on the merits of its appeal; (2) irreparable harm
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

7

Any petition for federal court review of the Decision pursuant to section 106(a)(l) of
the Mine Act, 30 U.S.C. § 816(a)(l), must generally await resolution of the remand to the judge,
a further petition for discretionary review to the Commission, and disposition by the Commission
of the petition. Even then, the court of appeals does not have exclusive jurisdiction in the
proceeding until such time as the record before the Commission is filed with the court. See Secy
on behalfof Smith v. The Helen Mining Co., 14 FMSHRC 1993, 1994 (Dec. 1992). Under Rule
l 7(a) of the Federal Rules of Appellate Procedure, the record is generally due in the court within
40 days of service upon the Commission of the petition for review. Thus, under the judge's
continuing jurisdiction pursuant to Commission Procedural Rule 45(e)(4), the parties should
have ample time to address the issue of the reinstatement going forward, should it be raised as
discussed supra.
33 FMSHRC Page 596

"extraordinary relief." 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).

1.

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

North Fork contends that there is a substantial likelihood it will prevail on appeal,
describing the Decision as having reversed 30 years of Commission precedent. NF Appl. at 3.
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 11-12 n.5; see Decision at 3 .. We are not
persuaded that there is a substantial likelihood that North Fork will succeed in overturning the
Decision. See Decision at 9-16, 20-23, 24-26.

2.

Whether North Fork Will Suffer Irreparable Harm Should a Stay Not Issue

North Fork alleges that it will be irreparably harmed by being required to pay Gray all that
he is owed under the economic reinstatement agreement until such time as the miner's section
105(c)(3) c·ase is heard and decided, because North Fork would be unlikely to recover the
payments shouJd the company succeed on appeal. Appl. at 3. North Fork'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 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 b~ decided. See Decision at 14-15, 25-26. That it is the miner, instead of the
Secretary, who ultimately brings the case is irrelevant to this principle.

In 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 North Fork 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.

3.

Whether Other Interested Parties Would be Adversely Affected by a Stay

North Fork also asserts that Gray will suffer little or no harm from a stay pending appeal.
Appl. at 3. Gray and the Secretary disagree. G. Opp'n at 3-4; S. Resp. at 15-16. As was
discussed previously, the purpose of the temporary reinstatement provisions is to put the miner,
during the time he pursues his discrimination claim, in no worse a position than he was while

33 FMSHRC Page 597

working for the operator. Because Gray is receiving significantly less in pay and benefits at
present than he would be if he wete working at North Fork, it is clear that Gray would be
adversely affected by a stay pending appeal.

4.

Whether a Stay Would Serve the Public Interest

North Fork contends that a stay would serve the public interest by preventing the
inequitable result of payment of back pay and benefits to a :miner whose termination may later be
determined to be entirely lawful. Appl. at 3. North Fork ignores 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 North Fork, 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.
Finally, we note that this issue has already been addressed in the companion to this case.
On February l5, the Commission denied the operator's request in Baird v. PC'S Phosphate Co.,
Docket No. SE 2010-74-DM, to stay the Commission's earlier decision. 33 FMSHRC 127 (Feb.
2011) (denying motion to stay Baird v. PCS Phosphate Co., 33 FMSHRC 5 (Jan. 2011)). A
federal appeals court subsequently also summarily denied the operator's request for stay pending ·
appeal to that court. See PCS Phosphate Co. v. FMSHRC {4th Cir. No. 11-1102, Mar. 4, 2011). 8

8

Commissioners Duffy and Young would grant North Fork's application and stay the
effect of the Commission's January 7, 2011, decision pending appeal, because that decision
constituted a substantial departure from the Commission's past practice with regard to the
question at issue. See Decision at 27 (Commissioners Duffy and Young, dissenting). However,
although they dissented from the decision of a majority of Commissioners to interpret the Mine
Act to permit a reinstated miner's right to reinstatement to extend through the course of the
section 105(c)(3) proceeding, that decision having been issued, they agree with the Chairman and
Commissioner Nakamura as to the disposition of the operator's petition for reconsideration.
33 FMSHRC Page 598

III.
Conclusion
For the foregoing reasons, (1) North Fork's petition for reconsideration is granted in part,
and our decision of January 7, 2011, is modified and remanded to the judge as described herein;
and (2) North Fork's application for stay pending appeal is denied.

~l

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 599

Commissioner Cohen, concurring in part and dissenting in part:
I concur with the majority's Order, except for its conclusion to abrogate the parties'
agreement, subsumed in Judge Melick's September 17, 2009 supplemental order, so as to impose
an offset for the period from December 2, 2009 to January 7, 2011 ("the Interim Period'').
The majority's opinion establishes that the principles applicable to temporary
reinstatement are different from an award of back pay. The majority opinion also makes clear that
temporary economic reinstatement results from agreement among the parties, as in this case, in
situations when the operator does not want the complainant-miner back at work. As the majority
states, the Commission judge approved the economic reinstatement agreement subsequent to a
hearing where Gray testified and where the operator could have questioned him about what, if
any, work he had performed since his termination by North Fork. Slip op. at 5 n.3. Based on
these principles, I do not see grounds for imposing an offset against Gray's economic
reinstatement based on his earnings.
The majority's first basis for imposing an offset is that the Interim Period "largely
encompasses the time during which the Commission was considering Gray's appeal." Slip op.
at 6. Gray's appeal was from Judge Melick's December 2, 2009 order, which erroneously
terminated Gray's temporary economic reinstatement. Another judge, Priscilla Rae, held a
hearing on the merits of Gray's underlying section 105(c)(3) discrimination complaint on
December 15, 2010. has just received the parties' briefs, and has not yet issued a decision. If
Gray's temporary economic reinstatement had not been erroneously terminated, he would still be
receiving it, and would continue to receive it at least through the date of Judge Rae's decision.
Thus, the fact that the Commission was considering Gray's appeal on the termination of
temporary reinstatement between December 2, 2009 and January 7, 2011, is irrelevant.
A secqnd basis for the majority's imposition of an offset during the Interim Period is that
the Commission's January 7, 2011 Decision imposed "significant retroactive liability in a context
where parties would not normally have anticipated such a result." Slip op. at 6. In referring to
"parties," presumably the majority is speaking of North Fork. Whether or not North Fork
"anticipated" significant retroactive liability must be viewed in the context of the facts that
(1) North Fork, which did not want Gray back at its mine after the judge initially ordered
temporary reinstatement on September 8, 2009, initiated the discussions which led to the
temporary economic reinstatement, 1 (2) North Fork agreed to pay Gray the full amount .he would
have been paid for working at its mine, but for his tiring, (3) in a lengthy cross-examination of
Gray at the hearing on temporary reinstatement on September 2, 2009, four months after his
firing, at which time Gray was already working at another mine, North Fork's counsel failed to
inquire about any other work which Gray might have been doing,2 (4) North Fork could not have

1

See slip op. at 5 n.3. The Affidavit of Tony Oppegard in this regard is uncontradicted.

2

See slip op. at 5 n.3.
33 FMSHRC Page 600

been relying on settled Commission law because the previous decision addressing the issue of
temporary reinstatement in the context of a miner's discrimination complaint under section
105(c)(3) of the Mine Act, Phillips v. A&S Construction Co., 31 FMSHRC 975 (Sept. 2009), had
been a two-to-two split among the then-four Commissioners, and (5) since the decision in
Phillips, a fifth Commissioner had joined the Commission, and would presumably break the tie.
These facts call into question the reasonableness of North Fork's non-anticipation of significant
retroactive liability.
Moreover, the liability was retroactive only because the Secretary chose not to file a
discrimination complaint on Gray's behalf under section 105(c)(2) of the Mine Act. Whether or
not the Secretary would file a I 05(c)(2) complaint was not known to North Fork when it initiated
discussions and agreed to pay Gray what he would have earned as its employee, regardless of any
work he might perform during the period of temporary economic reinstatement. If the Secretary
had chosen to file a section 105(c)(2) complaint, North Fork would have had the same liability,
only it would have had to make the payments as they accrued. The majority is imposing a
significant offset on Gray based on the circumstance of the SeCretary's decision not to file a
section 105(c)(2) complaint.
Additionally, the majority's reliance on the parties' "anticipation" ignores Gray's
anticipation. When Gray negotiated the agreement for temporary economic reinstatement, he was
already working at the other mine. The Secretary had not yet made a decision as to whether to file -·
a section 105(c)(2) complaint. Presumably, Gray's "anticipation''.was that he would receive his
full North Fork salary and benefits (for his forbearance from returning to work at North Fork's
mine), together with the money from his work at the other mine, for whatever time it took for the
Commission to resolve his discrimination complaint. He certainly did not anticipate that his work
at the other mine would be for the ultimate economic benefit of North Fork, the result of the
majority's decision.

I understand that the approach of not imposing an offset during the Interim Period puts .
Gray in a position that one could call "double dipping," in that he would be receiving money from North.Fork for not working there at the same time as he receives wages from another employer.
Yet this is precisely what North Fork bargained for. In exchange for Gray not returning to work at
its mine while his discrimination case was pending before the Commission, North Fork agreed to
pay him what he would have earned had he been working. Understood in these terms, North Fork
is receiving a windfall because of the majority decision to impose an offset during the "Interim
Period."

Robert F. Cohen, Jr., Commissioner

33 FMSHRC Page 601

Distribution
Stephen M. Hodges, Esq.
Penn, Stuart & Eskridge
P.O. Box 2288
Abingdon, VA 24212
Tony Oppegard, Esq.
P.O. Box 22446
Lexington, KY 40522
Wes Addington, Esq.
Appalachian Citizens Law Center, Inc.
317 Main Street
Whitesburg, KY 41858
Robin Rosenbluth, Esq.
Jerald Feingold, Esq.
W. Christian Schumann, Esq.
Otlice of the Solicitor
U.S. Depat1ment of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Derek J. Baxter, Esq.
Matthew Babington, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2296
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC Page 602

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUl1E9500
WASHINGTON, DC 20001

March 30, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA)
Docket No. KENT 2010-1496
A.C. No. 15-18861-221400

V.

CONSHOR MINING 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 23, 2010, the CoIIlDlission received from Conshor
Mining LLC ("Conshor") a request seeking to reopen a penalty assessment that has become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a). On September 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
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., l 7 FMSHRC 1529, 1530 (Sept. 1995).
33 FMSHRC Page 603

In the case before us, the Department of Labor's Mine Safety and Health Administration
(''MSHA") issued a proposed penalty assessment for case No. 000221400 on June 3, 2010. In its
motion to reopen, Conshor states that it had intended to contest ten of the citations listed in the
proposed assessment, but failed to do so within 30 days of service because it had ceased active
mining operations. The proposed assessment therefore became a final order of the Commission,
pursuant to section 105(a) of the Mine Act, on July 18, 2010. Conshor submitted its notice of
contest to MSHA two weeks late, on August 2, 2010.

The Secretary does not oppose Conshor' s motion to reopen, "in light of the explanation
offered in support of the motion." Sec'y Resp. However, the Secretary urges the operator to take
all steps necessary to ensure timely responses in the future and further notes that Conshor is
delinquent in payment of$115,134 in penalties, including the $48,220 at issue in this case. The
Secretary states that she will take into account the failure to address these delinquencies in
deciding whether to oppose future motions to reopen.
Conshor asserts that it failed to timely contest the perialties at issue because it had ceased
active mining operations. The operator discovered the error and submitted the notice of contest
for ten citations two weeks late. 1 The Secretary expressly cited the operator's explanation as
grounds for not opposing the motion to reopen. While the Secretary noted that the considerable
penalties due in this case are part of a total delinquency of more than $115,000 owed by the
operator, she decided to afford the operator an opportunity to contest the citations at issue and to
defer the delinquency issue. 2
·

1

This case is clearly distinguishable from Elk Run, cited by our dissenting colleague. fu
that case, the mine's mail was allowed to accumulate over a period of three months. Elk Run
Coal Co., 32 FMSHRC 1587, 1588 (Apr. 2009). There the assessment was issued in April 2009,
and we did not receive the motion to reopen until July 28, 2009. Id. A cessation of active
mining operations is not an ordinary circumstance. In Elk Run, however, the failure to make any
provision for receiving and responding to mail for several months was not explained, and due to
the duration, was not excusable as a mere oversight. By contrast, the operator here must have
made some effort to address the issue of mail delivered to the idled mine, on its own, within a
brief period of time. This is, therefore, not a similar case of patent neglect.
2

Contrary to our dissenting colleague, we decline to address the issue of whether the
operator's delinquent penalties amount to bad faith.
33 FMSHRC Page 604

Having reviewed the facts and circumstances of this case, Conshor's request, and the
Secretary's response, we agree with the Secretary's tacit acknowledgment of the operator's
reasonable excuse under the circumstances and hereby reopen this matter and remand it to the
Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

~
Michael

F.:C<ITT1TTriSS

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 605

Commissioner Cohen, dissenting:
I cannot agree with my colleagues' determination that the motion filed by Conshor
Mining LLC is sufficient to reopen a penalty assessment that has become final under section
105(a) of the Mine Act. The only information provided in the motion is that at the time of the
proposed assessment "Conshor had already ceased active mining operations."
The Commission has made it clear that when a failure to contest a proposed assessment
results from an inadequate or unreliable internal processing system, the operator has not
established inadvertence, mistake or excusable neglect so as to justify reopening a final
assessment. 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 ); see Gibbs v. Air Canada,
810 F.2d 1529, 1537-38 (11th Cir. 1987). In particular, in Elk Run Coal Co., 32 FMSHRC 15871589 (Dec. 2010), the Commission recently held that failure to open and deal with incoming mail
when the mine was idled does not constitute inadvertence or excusable neglect.
Nor does the closure or movement of a plant office justify failure to respond to a
proposed assessment. Harvey Trncking Inc., 32 FMSHRC 1245 (Oct. 2010) (holding that
operator's argument that it did not receive the proposed assessment because its office was closed
due to illness was not a sufficiently detailed explanation for its failure to contest the.proposed
penalty assessment.); B&W Res., Inc., 32 FMSHRC 1627 (Dec. 2010) (holding that operator's
argument that it moved its office and hired new personnel is insufficient to establish grounds for
reopening the assessment).
In the motion to reopen the penalty assessment, Conshor's counsel stated only that it
"had already ceased active mining operations." It appears that Conshor's internal procedure was
insufficient to timely respond to a penalty assessment. Conshor fails to explain how and why
ceasing "active mining operations" affected the normal processing of penalty assessments. It
does not explain how penalty assessments were processed after the mine "ceased active mining"
and whether and in what form the office procedures continued. If Conshor had simply walked
away from its responsibilities after ceasing active mining operations, it would certainly not be
entitled to reopening of the penalty assessment. 1

1

Conshor also failed to respond to the Secretary's assertion that it is currently delinquent
with respect to approximately $115,134 in penalties. In B & W, 32 FMSHRC at 1628, the
Commission denied a reopening motion without prejudice, inter alia, because the operator had
not responded to the Secretary's assertion of delinquent penalties at this mine in the amount of
$95,984. The Commission has recognized in a case involving a request for relief from a final
Commission decision that "[t]he absence of bad faith on the part of the defaulting party is also a
relevant concern." MM Sundt Constr. Co., 8 FMSHRC 1269, 1271 (Sept. 1986). In the present
case, the existence of approximately $115,134 in delinquent penalties may show bad faith on the
part of the operator.
33 FMSHRC Page 606

In the absence of any explanation beyond the cessation of active mining operations, I
conclude that Conshor has failed to carry its burden of justifying reopening.

Robert F. Cohen, Jr., Commissioner

33 FMSHRC Page 607

Distribution:
Jonathan R. Ellis, Esq.
Steptoe & Johnson, PLLC, 8th Floor
Bank One Center
P.O. Box 1588
Charleston, WV 25326-1588
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 608

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

March 30, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2010-941-M
A.C. No. 20-00985-219861

V.

0-N MINERALS (MICHIGAN)
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 August 30, 2010, the Commission received from
the 0-N Minerals (Michigan) Company a request to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a). On September 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 609

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.

~·
Michaertii,COlllIIliS

Micha

Robert F. Cohen, Jr., Commissioner

~l

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 610

Distribution:
Jim Weber, Production Mngr.
Carmeuse Chemicals
County Rd. 432
Gulliver, MI 49840
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 611

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

March 30, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
DocketNo. WEVA2010-1453
A.C. No. 46-07908-218088

V.

PINE RIDGE 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 August 5, 2010, the Commission received from Pine
Ridge Coal Company, LLC a request to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). On
August 26, 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 notiff the Secretary of Labor no later than JO 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 612

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.

~~
MichaeIF:'~

Robert F. Cohen, Jr., Commissioner

~L

..

Patnck K. Nakamura, Commissioner

33 FMSHRC Page 613

Distribution:
Melissa Robinson, Esq.
Jackson Kelly PLLC
1600 Laidley Tower
P.O. Box 553
Charleston, WV 25322
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
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 614

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

April 8, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA)
Docket No. WEVA 2011-567
A.C. No. 46-01537-237057

V.

LONG BRANCH ENERGY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY TIIE COMMISSION:
This matter arises underthe Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) {''Mine Act"). On December 15, 2010, the Commission received from Long
Branch Energy a 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 January 20,
2011, 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 615

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.

'{_~··
(
·~·
. . . -..
Michael F. Duffy,

ert

C~

F. Cohr.

Cotnnllssioner ·

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 616

Distribution:
Michael T. Cimino, Esq.
Jackson Kelly, PLC
1600 Laidley Tower
P.0.Box553
Charleston, WV 25322
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. OfLabor
1100 Wilson Blvd., z5t1t 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 617

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

April 8, 2011
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. LAKE 2011-114
A.C. No. 33-04565-217111

v.

Docket No. LAKE 2011-115
A.C. No. 33-04565-219905

MOUNTAIN SPRING COAL 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 November 9, 2010, the Commission received from
Mountain Spring Coal Company ("Mountain Spring") a request to reopen a penalty assessment
that had become a fmal order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a). On December 14, 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 618

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).
Mountain Spring maintains that it did not receive the proposed penalty assessments until
after the time to contest had passed. On March 31, 2010, Mountain Spring sent written
notification to the MSHA District Four office that the new operator for the 10-7 Mine in
Bergholz, Ohio, would be Rosebud Mining Company effective April 1, 2010, and that any
correspondence, "including assessments," should be forwarded to Mountain Spring' s Danville,
West Virginia address. The operator also filed a change of address with the U.S. Postal Service.
On April 15 and May 13, 2010, MSHA issued Proposed Assessment Nos. 000217111 and
000219905, respectively, to Mountain Spring. The assessments were sent via Federal Express to
the operator's previous Bergholz address where they were signed for by persons at the mine.
After checking MSHA's data retrieval system and discovering that one assessment had become a
final order and the other was delinquent, the operator contacted MSHA and eventually obtained .
email copies of the assessments on August 3, 2010. The operator sent in its contest the same day,
and again notified MSHA of its correct address. Seven days later, Mountain Spring sent payment ·
for the remaining uncontested citations. The operator subsequently received a delinquency letter
for each assessment and a letter dated August 13, 2010, denying its contest as untimely. MSHA
sent the letters to the operator's former Bergholz address. The Secretary does not oppose
- Mountain Spring's motion, and confirms that the Legal ID R~ort for the mine, reflects the
current operator as Rosebud Mining as of April 1, 2010.
The proposed assessments were Federal Expressed to an address no longer utilized by
Mountain Spring. On March 31, 2010, 15 days prior to issuance of Assessment No. 000217111
and a month and half prior to issuance of Assessment No. _000219905, the operator notified
MSHA of its new address as required by 30 C.F.R § 41.12. After several email exchanges with
MSHA, Mountain Spring received copies of the assessments on August 3, 2010, and returned its
contests of th~ assessments to MSHA the same day. Based on the foregoing, we conclude that
· Mountain Spring did not "receive" the penalty assessments within the meaning of section 105(a)
of the Mine Act until August 3, 2010. Because Mountain Spring filed its notice of contest on the
same day, well within the 30-day statutory period, we conclude that it timely notified the
Secretary of its intent to contest the proposed penalty assessments. See The Pit, 16 FMSHRC
2033, 2034 (Oct. 1994); Roger Richardson, 20 FMSHRC 1259, 1260 (Nov. 1998).

33 FMSHRC Page 619

Accordingly, the proposed penalty assessments are not final orders of the Commission,
and these cases are remanded to the Chief Administrative Law Judge for assignment. The
matters shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29
C.F.R. Part 2700. Consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F .R. § 2700.28.

Michael F. Duffy, Commissioner

Robert F. Cohen, Jr., Commissioner

33 FMSHRC Page 620

Distribution:
Gregory D. Peterson, President
Mountam Spring Coal Co.
P.O. Box 564
Danville, WV 25053
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 621

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

April 8, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2010-1116-M
A.C. No. 09-01095-221080A

V.

MARK CUNNINGHAM, EMPLOYED
BY TRI-STAR USA, 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 24, 2010, the Commission received from
Mark Cunningham a request to reopen a penalty assessment that had become a final order of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). On September 20,
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 and the Commission's Procedural Rules, an
individual charged with a violation under section l lO(c) has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that he or
she wishes to contest the proposed penalty. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.27.
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
33 FMSHRC Page 622

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 penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

~·

MiC11Rcli.ffy, commissioner

Michael

Robert F. Cohen, Jr., Commissioner

·~ JV1le===-

. .

Patrick K. Nakamura, Comm1ss1oner

33 FMSHRC Page 623

Distribution:
Nichelle Young, Esq.
Law Office of Adele L. Abrams, P .C.
4 740 Corridor Place, Suite D
Beltsville, MD 20705

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
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 624

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

April 8, 2011
Docket No. WEST 2010-1721-M
A.C. No. 48-00611-226100

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

Docket No. WEST 2010-1722-M
A.C. No. 48-00974-226101

v.
WYO-BEN, lNC.

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 Augl!st 25, 2010, the Commission received motions by
counsel from Wyo-Ben, Inc., requesting 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). 1 On
September 16, 2010, the Commission received a response from the Secretary of Labor stating
that she does not oppose the requests to reopen the assessments.
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

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEST 2010-1721-M and WEST 2010-1722-M. both captioned
Wyo-Ben, Inc., and both involving similar procedural issues. 29 C.F.R. § 2700.12.
33 FMSHRC Page 625

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).
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., Commis.sioner

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 626

Distribution:
Adele L. Abrams,Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
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 627

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

April 14, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2010-621-M
A.C. No. 36-00190-218250

v.
ESSROC CEMENT 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 July 6, 2010, the Commission received from
Essroc Cement Corporation a request to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). On
July 22, 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"); .!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 628

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 629

Distribution:
Danny Lowe
CMSP
Essroc Cement Corporation
1826 South Queen St.
Martinsburg, WV 25402
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., 251h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC Page 630

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

April 14, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2011-172
A.C. No. 36-08346-241752

v.
CARLINE COAL 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 January 25, 2011, the Commission received from
Carline Coal Company, Inc., a letter from the company's president 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 February 8, 2011, 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 631

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 632

Distribution:
Frank J. Krammes
Carline Coal Co., Inc.
2219 East Main St.
P.O. Box 188
Sacramento, PA 17968 .
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., 251h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021 ·

33 FMSHRC Page 633

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

SUITE 9500
WASHINGTON, DC 20001

April 14, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)
Docket No. YORK 2010-309-M
A.C. No. 17-00692-201858

v.
P & K 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 July 26, 2010, the Commission received from
P & K Sand & Gravel, Inc. ("P & K") a letter from the company's president 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).
Undet 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 634

On November 4, 2009, the Department of Labor's Mine Safety and Health
Administration (''MSHA") issued Proposed Assessment No. 000201858 to P & K. P & K
contends that it did not understand its contest rights and the significance of an unwarrantable
failure designation at the time of the inspection and that the inspector had not explained MSHA' s
contest procedures. It asserts that it is a small, family-owned business and thought it had done
what was necessary to contest the penalty. P & K provided the following timeline of events in
support of its request to reopen: On December 7, 2009, shortly after receiving the proposed
assessment, it sent a letter to MSHA's District Office in Warrendale, Pennsylvania, raising
concerns about its ability to pay. In early February 2010, shortly after receiving MSHA's
delinquency notice in late January, it sent a letter to MSHA's Civil Penalty payment office in St.
Louis with a copy of the letter it sent to MSHA's District Office. In early June 2010, shortly
after receiving an invoice from the Treasury Department in late May, it responded to the Treasury
Department and provided copies ofits.correspondences to MSHA In ilate June 2010, it sent a
letter to the Department of Labor's Regional Solicitor in Boston. It appears that this letter was
forwarded to the Appellate Counsel for Mine Safety and Health in the Solicitor's Office, who
responded in mid-July. The operator subsequently filed its request to reopen about two weeks
later.
The Secretary of Labor states that she does not oppose the request to reopen the
assessment. She notes that P & K's February 2010 correspondence to MSHA was sent to its St
Louis office, and not its Civil Penalty Compliance Office in Arlington, Virginia. She also states
that the proposed assessment form provides clear instructio~ to the operator on how to file a
contest of the assessment.
Although P & K failed to follow the instructions on the proposed penalty assessment
form and did not file a contest of the proposed assessment with MSHA's Civil Penalty
Compliance Office in Arlington, V~ the operator did send timely correspondence to MSHA.
. Moreover, aft~ receiving guidance from the Solicitor's Office, P & K promptly filed a request to
reopen. Given the operator's numerous attempts to challenge the proposed assessment and its
apparent inexperience with Commission procedures, we conclude that under the circumstances in
this case, the operator has established good cause for reopening.

33 FMSHRC Page 635

Having reviewed the facts and circwnstances of this case, P & K'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 636

Distribution:
C. Bruce Plummer, President
P & K Sand & Gravel, fuc.
234 Casco Rd.
Naples, ME 04055
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 637

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

April 28, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2011-576-M
A.C. No. 26-00827-216609

V.

CORTEZ JOINT VENTURE

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 February 2, 2011, the C~mmission received from Cortez
Joint Venture ("Cortez") a letter by counsel seeking to reopen a penalty assessment that may
have become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 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).
The Secretary submits that, upon reviewing the records in this proceeding, she has
discovered that the proposed penalty was timely contested.

33 FMSHRC Page 638

Having reviewed Cortez's request and the Secretary's response, we find the request to
reopen to be moot. Cortez has properly contested the proposed penalty assessment and,
therefore, it did not become a final order of the Commission. Accordingly, the request to reopen
is dismissed as moot.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 639

Distribution
Michael T. Heenan, Esq.
Ogletree, Deakins, Nash,
Smoak & Stewart, P.C.
2400 N Street NW, 5th Floor
Washington, DC 200.37
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., 251h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

33 FMSHRC Page 640

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUl1E9500
WASHINGTON, DC 20001

April 28, 2011
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2008-1101
A.C. No. 46-08553-147762

v.
ELK RUN COAL 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 November 4, 2009, Chief Judge Lesnick issued to Elk
Run Coal Company, Inc. ("Elk Run"), an Order to Show Cause for not answering the Secretary's
June 30, 2008 Petition for Assessment of Civil Penalty and ordered it to file its answer within 30
days of his order. On August 13, 2010, Judge Lesnick issued an Order of Default to Elk Run for
failing to comply with his show cause order.
On November 10, 2010, the Commission received a motion by counsel to reopen the
penalty assessment proceeding and relieve Elk Run from the order of default entered against it.
The operator states that on December 2, 2009, via counsel, in response to the Order to Show
Cause, it filed its answer to the Secretary's Petition contesting 11 citations. Elk Run's Answer
was received by the assigned Solicitor but not by the Commission. The parties immediately
began discovery and settlement negotiations. Elk Run explains that the default order was mailed
to Elk Run's president, Craig Boggs. The operator states that although Boggs received the order,
not understanding what it meant and knowing that settlement negotiations were ongoing, he
assumed it was a courtesy copy and did not forward it to counsel. Counsel learned of the default
order on November 2, 2010, after receiving the Mine Safety and Health Administration's
(MSHA) delinquency letter from Elk Run. It immediately contacted the Commission to
investigate, and subsequently filed its motion to reopen on November 9, 2010. Elk Run indicates
in its motion that the Secretary does not oppose its request to reopen.
33 FMSHRC Page 641

The judge's jurisdiction in this matter terminated when his decision was issued on
August 13, 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 ofits issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). If the Commission does not direct review within 40 days of a decision's issuance,
it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(l). The judge's order
became a final decision of the Commission on September 22, 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
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) ("JWR'). 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 Elk Run timely filed its answer to the
Secretary's Petition for Assessment of Civil Penalty in response to the Chief Judge's Order to
Show Cause. The Answer contains a certificate of service certifying that it was served by
counsel on the representative for the Secretary on December 2, 2009, within 30 days of the show
cause order. Additionally, the Secretary has not opposed the motion.

33 FMSHRC Page 642

In the interest ofjustice, we hereby reopen the proceeding and vacate the Order of
Default. This case is remanded to the Chief Administrative Law Judge for further proceedings
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 643

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

33 FMSHRC Page 644

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

April 29, 2011
SECRETARY OF LABOR

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2009-746-M
A.C. No. 54-00299-139019

v.
MASTER PRODUCTS CORPORATION

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY: Young, 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 July 28, 2009, the Commission received from Master
Products Corporation ("Master Products") a letter seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act,
30 U.S.C. § 815(a).
Under' section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On February 6, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000139019 to Master Products. This proposed
assessment listed five citations issued on December 26 and 27, 2007, with a total proposed
penalty of $5,208.
Before Master Products received the proposed assessment, on or about January 4, 2008, it
sent a letter by facsimile to Melody Wesson, a Conference and Litigation Representative in
MSHA's Birmingham, Alabama office, requesting a "safety and health conference" on the five
citations issued on December 26 and 27, 2007. When Master Products did not receive a response
to this letter, on January 24, 2008, the company sent a copy ofit to Luis Valentin in MSHA's
Guaynabo, Puerto Rico field office. The company did not receive a response to this letter.
33 FMSHRC Page 645

On February 19, 2008, Master Products sent a letter by certified mail to the MSHA
Birmingham office requesting assistance "to contest and have a formal hearing on all violations
listed in proposed assessment case# 000139019." Attached to this letter was a copy of the
proposed assessment indicating Master Products wanted "to contest and have a formal hearing on
all violations listed in the Proposed Assessment(s)." On March 11, 2008, Master Products
received a phone call from an MSHA employee indicating that the company's February 19
certified letter had been received.
Although at this point, Master Products assumed the case ''was under review," on or
about May 7, 2008, MSHA sent a delinquency notice stating that the assessment had become
final, and that the civil penalty was now delinquent. On May 19, 2008, Master Products sent a
facsimile to the MSHA Civil Penalty Compliance Office in Arlington, Virginia, attaching copies
of its correspondence with MSHA and inquiring about its request for a formal hearing on the
violations. The facsimile stated:
I have a concern related with all delinquent civil penalties and all
the catastrophic consequences mentioned in your letters. I
diligently and on time sent to your office a request for a Safety and
Health Conference. Attached please find all the information that
has been sent to you.
On March 11, 2008 I received a call from Melody Wesson and she
explained to me ~at MSHA has received the documents I've sent.
I understand that MSHA have has (sic) a large backlog of
documents to review and I should wait for a conference date.
I have not received a date for a formal hearing on all violations;
however I continue receiving letters related with civil penalties and
payment requests.
I would appreciate your help in this matter.
Master Products did not receive a response to this letter.
On September 22, 2008, the company received a collection notice from Progressive
Financial Services on behalf of the U.S. Department of the Treasury demanding payment of
$6,935. l 0. Master Products responded to the notice in a letter dated September 24, 2008,
explaining its efforts to obtain a formal hearing.

In a letter to the Commission dated July 22, 2009, the company submitted its request to
reopen the proposed assessment, although it had not "received any notification, answer or phone
calls regarding" the proposed assessment. Master Products fully documented its contentions in
this letter.

33 FMSHRC Page 646

On August.12, 2009, the Commission received the Secretary's response opposing Master
Products' request to reopen. She states that the penalty assessment became a final Commission
order on March 22, 2008, and attached the delinquency notice dated May 7, 2008. The Secretary
states that Master Products filed its request more than one year after the assessment became a
final order and therefore that the request should be denied. The Secretary did not address, or
dispute, any of the representations made by Master Products concerning the company's efforts to
communicate with MSHA to contest Proposed Assessment No. 000139019.
On August 31, 2009, Master Products again wrote to the Commission in reply to the
Secretary's response. The company said that the Secretary's opposition to its motion to reopen
"was the first response that we have received to our many efforts."

The Commission has held that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure. 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., I 7
FMSHRC 1529, 1530 (Sept. 1995).
Usually, when the Commission considers a request to reopen a proposed assessment
which has become final by virtue of section 105(a), it does so in accordance with Rule 60(b)(I),
under which a final judgment against a party may be relieved on the basis of "mistake,
inadvertence, surprise, or excusable neglect." See, e.g., Kenamerican Res., Inc., 20 FMSHRC
199, 199-200 (Mar. 1998) (illness of safety director and lack of coordination between safety
director and accounting department found to be inadvertence or mistake); Austin Powder Co., 33
FMSHRC ___,slip-op. at 2-3, No. SE 2010-468 (Mar. 21, 2011) (operator's email to counsel
requesting filing of contest inadvertently sent to inactive email account). However, pursuant to
Rule 60(c)(1 ), a motion under Rule 60(b) "must be made within a reasonable time - and for
reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of
the proceeding." Hence, in cases seeking reopening of a penalty which has become final by
virtue of section 105(a), where the basis for the request is mistake, inadvertence, surprise, or
excusable neglect, and the request is made more than one year after the order became final, the
Commission has denied relief. See, e.g., Newmont USA Ltd, 31 FMSHRC 808 (July 2009); J.S.
Sand & Gravel, Inc., 26 FMSHRC 795 (Oct. 2004).

On past and very infrequent occasions, the Commission has been gtiided by Rule
60(b)(6), which provides that relief from a judgment or order may be granted for "any other
reason that justifies relief." Under Rule 60(b)(6), a motion seeking relief need not be filed within
one year from entry of the judgment or order, although it must be filed within a "reasonable
33 FMSHRC Page 647

time." Fed. R. Civ. P. 60(c)(l). The Commission has considered reopening penalties which had
become final pursuant to section 105(a), relying on Rule 60(b)(6), even though the motion had
been made more than one year after the penalty has become final. See, e.g., Brian D. Forbes, 20
FMSHRC 99 (Feb. 1998) (remanding to judge where individual respondent claimed that he had
no actual knowledge of the citation issued against him); Contractors Sand & Gravel, 23
FMSHRC 570 (June 2001) (remanding to judge to consider whether "extraordinary
circumstances" exist where operator claims that it understood that assessments were included in
separate settlement agreement).
Federal court jurisprudence on Rule 60(b)(6) begins with the Supreme Court's seminal
decision in Klaprott v. United States, 335 U.S. 601 (1949), in which the Court set aside a default
judgment entered by a district court many years earlier in a case involving the revocation of the
petitioner's certificate of naturalization and American citizenship. The Court held that the
language of Rule 60(b)( 6) - "any other reason justifying relief from the operation of the
judgment" - ''vests power in courts adequate to enable them to vacate judgments whenever such
action is appropriate to accomplish justice." Id. at 613-15. 1 The Court stated in Klaprott that the
use of Rule 60(b)(6) is reserved for an "extraordinary situation," and is not to be used in
situations covered by the five specified reasons set forth in Rule 60(b)(l) through (5). Id. at 613;
see also Ackermann v. United States, 340 U.S. 193 (1950); Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847 (1988); Pioneer Inv. Servs. Co. v. BrunswickAssocs. Ltd. P'ship, 507 U.S.
380 (1993). In Pioneer Investment Services, the Court quoted with approval the partial dissent of
Justice Frankfurter in Klaprott:
Justice Frankfurter, although dissenting on other grounds, agreed
that Klaprott' s allegations of inability to comply with earlier
deadlines took his case outside the scope of "excusable neglect"
because 'neglect' in the context of its subject matter carries the
idea of negligence and not merely of non-action.

Id. at 394 (citation _omitted) (emphasis in orignial).
The present view ofRule 60(b)(6) by federal courts is summarized in 11 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2864 (2d ed. 2010) in the
following manner:
Although it is not easy to fit the later cases into a consistent
pattern, in general they seem to follow the flexible approach of the

1

We note that the current language of Rule 60(b)(6) - "any other reason justifying relief'
- is slightly different, but substantively the same. More significantly, the Commission quoted the
Court's language, "such action is appropriate to accomplish justice," with approval in Chaney
Creek Coal Corp., 12 FMSHRC 615, 619 (Apr. 1990) so as to grant relief under Rule 60(b)(6) in
a discrimination case.
33 FMSHRC Page 648

Karahalias case.2 The courts have echoed, as they must in the light
of Ackermann, the view that clause (6) is reserved for cases
involving extraordinary circumstances, and they have said that that
clause and the other clauses of the rule are mutually exclusive. At
the same time they have acted on the premise that cases of extreme
hardship or injustice may be brought within a more liberal
dispensation than a literal reading of the rule would allow.
A case in point is Lowe v. McGraw-Hill Cos., Inc., 361F.3d335 (7th Cir. 2004). In
Lowe, the district court had set aside an unjust May, 2001 default order, but had done so under
Rule 60(a) as a "clerical error" more than a year after the default order was entered. Writing for
the Seventh Circuit, Judge Posner recognized that the judgment was not a clerical error, but
rather a mistake, and Rule 60(b)(1) allows relief from a mistaken judgment only within a year of
its entry. However, Judge Posner stated, "[w]ith the Rule 60(a) door thus shut, however, the law
would be exposed as indeed 'a ass - a idiot,' as Mr. Bumble called it in Oliver Twist, if the
district judge's mistake could not be corrected under Rule 60(b)." Id. at 341. Judge Posner
recognized that the "catch-all or safety-valve provision" of Rule 60(b)(6) '1nustn't be allowed to
override the one-year limitation·in Rules 60(b)(l), (2) and (3). Id. at 342 (citations omitted).
However, he went on to state:
What then is its scope? The first five subsections seem to cover
the waterfront. The only work for (6) to do is to allow judgments
to be set aside, without limitation of time, when the circumstances
of its invocation are "extraordinary." This is fuzzy, and in tension
with the cases that say that Rules 60(b)(l) and 60(b)(6) are
mutually exclusive. But the purpose of a catch-all provision, as the
term implies, is to avoid tying one's hands in advance, which a rule
would do and only a loose standard would securely avoid doing.

Id. Although the default judgment was a '1nistake," the Seventh Circuit set it aside under Rule
60(b)(6).

2

United States v. Karahalias, 205 F.2d 331 (2nd Cir. 1953) involved the petition ofa
naturalized American citizen to vacate a default judgment cancelling his certificate of
naturalization. The petition was brought 17 years after the court action. In remanding the case
for further proceedings, Judge Learned Hand first characterized the actions of the petitioner as
"excusable neglect," and stated that under Rule 60(b)(6), the court had authority to dispense with
the one year limitation period "for situations of extreme hardship." Id. at 333. On petition for
rehearing by the government, which pointed out that Klaprott held that a reason provided under
Rule 60(b)(l) could not be the basis for the court to invoke Rule 60(b)(6), Judge Hand retracted
his characterization of the petitioner's conduct as "neglect." Judge Hand concluded that the
petitioner's conduct should be termed "inaction," and again remanded the case to the district
court for further proceedings. Id. at 335.

33 FMSHRC Page 649

We conclude that this is a case of "extraordinary circumstances" where reopening is
warranted under Rule 60(b)(6). Here, Master Products timely submitted its contest of the
proposed assessment on February 19, 2008, albeit to the wrong MSHA office. 3 In some
circumstances, delivery of a notice of contest of a proposed penalty assessment to another
address within MSHA may operate to explain a failure to respond to MSHA's Civil Penalty
Compliance Office in Arlington, Virginia. 4 Those circumstances may include situations where
the agency acts as though it has received a timely notice of contest.
All of the events subsequent to the operator's timely submission led it to reasonably
believe that it had properly requested a hearing. Master Products asserts, without contradiction,
that MSHA communicated with it on March 11, 2008, concerning the company's February 19,
2008 letter (which included a copy of the proposed assessment marked properly to indicate the
company's intent to contest all the penalties contained in the assessment). The operator
exercised diligence in pursuing its contest by making several attempts to contact MSHA and
inquire as to the status of its case and responding to each-correspondence it received from the
agency. Shortly after its receipt of the delinquency notice in May 2008, Master Products faxed to
the Civil Penalty Compliance Office its prior correspondence with MSHA's Regional Offices
and a copy of the marked-up assessment form. As quoted supra, the operator raised significant
questions in this facsimile, 5 and specifically asked MSHA for help. The government never
responded. Master Products also promptly acted when it received the collection notice in
September 2008 - writing to the collection agency within two days to explain that it had
contested the citation at issue. This is wholly consistent with its understanding of the posture of

Commissioners Cohen and Nakamura w~uld find that Master Products' submission of
the timely contest to MSHA's District Office in Birmingham, Alabama constituted an effective
contest of the proposed assessment, and thus the assessment never became final under section
105(a) of the-Mine Act. Palmer Coking Coal Co., 30 FMSHRC 1076 (Dec. 2008); DS Mine &
Development, LLC, 28 FMSHRC 462 (July 2006). However, we need not reach that issue.
3

4

In Service Transport, LLC, the operator sent a contest of a proposed penalty to an office
of the Solicitor of Labor and to the Commission. 27 FMSHRC 614, 614-15 (Sept. 2005). The
Commission held that Service Transport's contest "constituted timely notification of the
Secretary under section 105(a) of the Mine Act ofits intention to contest the proposed penalty."
Id. at 615. The Commission noted in particular that the instructions on the cover sheet
accompanying the proposed assessment could be seen as misleading. Id. Similarly, the operator
in the present case had received a direct communication from MSHA' s conference and litigation
representative, confirming that the materials - which included a contest of the proposed
assessment- had been received. Thus, the operator believed that the case was under review.
5

Master Products stated, for example, that it understood that the long delay in
addressing the citation was a result of the backlog at the Commission. See Master Products
facsimile cover sheet, fax from Luis Correa to MSHA Civil Penalty Compliance Office, May 19,
2008.
33 FMSHRC Page 650

the case. Nothing in the record indicates that MSHA took any action to correct the operator's
clearly-expressed understanding of the circumstances. In relying on the agency's silence and its
earlier representations, Master Products failed to take further action within one year of the order
becoming final because it reasonably believed that no :further action was necessary.
Finally, we address the fact that Master Products did not seek relief before the
Commission for 16 months (March 22, 2008 to July 22, 2009) after the proposed assessment
became final. For nearly half of this period, the operator was sending correspondence to the
MSHA Civil Penalty Compliance Office and to the collection agency for the Treasury
Department. Throughout the period, as shown by the operator's August 31, 2009 letter to the
Commission, Master Products had received no response to its inquiries from MSHA despite clear
articulations of its understanding of the situation and express requests. In this context, we note
that when a party seeks relief from a final judgment or order under the Federal Rules of Civil
Procedure, it files a motion with the same court which entered the judgment. In contrast, when
an operator seeks reopening of an assessment which has become final under section 105(a) of the
Mine Act, it must petition a separate· federal agency - the Commission - from the agency which
issued the proposed assessment. Although in some situations (e.g., where a contest is filed late),
MSHA routinely notifies an operator that it must petition the Commission for relief, no such
notification was provided to Master Products. On the contrary, Master Products'
misapprehension of the situation arose from silence or communication by the agency which
would lead a reasonable person to conclude that the case had been properly contested and was
being held up by bureaucratic delays. Moreover, Master Products was unrepresented by counsel,
and some of its correspondence in the record is in Spanish.6 Under the circumstances, we
conclude that the operator's request for relief was made within a reasonable time pursuant to
Rule 60(c)(l).

6

Master Products is located in Puerto Rico.
33 FMSHRCPage 651

Therefore, 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 652

Chairman Jordan and Commissioner Duffy, dissenting:
Master Products delayed more than 16 months before it sent a letter to the Commission
seeking to reopen a penalty assessment that had become a final order. Because the operator
waited over a year before asking for relief from that final order, we would, consistent with
longstanding Commission precedent, deny its request.

As the majority correctly states, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure when evaluating requests to reopen final orders. Slip op. at 3.
Our colleagues also correctly note that the Commission has held that a Rule 60(b) motion must
be made within a reasonable time, and, under most circumstances not more than one year after
the judgment, order or proceeding was entered or taken. 1 Id.; see also Lakeview Rock Prods., 19
FMSHRC 26, 28-29 (Jan. 1997).
Here, the proposed assessment became final in March 2008. The operator received a
delinquency notice from MSHA in May 2008, and a notice from a collection agency in
September 2008. It delayed 10 months after receiving the collection notice before asking the
Commission for relief from the final order. It did not seek relief from the Commission until July
2009, welJ over a year after the proposed assessment became final.
Nonetheless, the majority grants relief and reopens this case, holding, as it must in order
to achieve this result, that the operator's actions do not fall under Rule 60(b)(l) ("inadvertence or
mistake"). Instead, according to our colleagues, ''this is a case of 'extraordinary circumstances'
where reopening is warranted under Rule 60(b)(6)." Slip op. at 6. Although we sympathize with
our colleagues' compassion for this operator, their effort to transform this case from an ordinary
60{b)(1) proceeding into an "extraordinary" case under 60(b)(6) is unavailing.
Indeed, the majority's decision is completely inconsistent with the Commission's
unanimous deeision in Newmont USA Ltd., 31 FMSHRC 808 (July 2009). In that case, the
operator mistakenly sent its penalty contest form to the incorrect MSHA office within the 30-day
contest period. The operator did not ask the Commission for relief until 13 months after the
proposed penalties had become a final order. The Commission held that the operator's mistake
about where to send the contest form "falls squarely within the ambit of Rule 60(b)(l)" and that
because it waited more than a year to seek relief, its motion was untimely. Id. at 810.
The Commission has held unequivocally that the "one-year time limit is an outside time
limit for motions requesting relief under subsections (1) through (3 ), and may not be

1

Rule 60(c) provides that "[a] motion under Rule 60(b) must be made within a
reasonable time- and for reasons (1), (2), and (3) no more than a year after the entry of the
judgment or order or the date of the proceeding." Fed. R. Civ. P. 60(c). As we discuss below,
this case falls under Rule 60(b)(1) (under which relief may be granted relief on the grounds of
"mistake, inadvertence, surprise, or excusable neglect").
33 FMSHRC Page 653

circumvented by utilization of subsections (4) through (6) ofRule 60(b). " Lakeview Rock
Prods., 19 FMSHRC at 28. Unfortunately, that is precisely what the majority is doing here.
It has been recognized that generally, cases brought pursuant to clause (6) are attempts to
avoid either the one-year time limit in the remaining clauses of Rule 60(b) or time deadlines for
other types of relie£ 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure§ 2864 (2d ed. 2010). Rule 60(b)(l) and (b)(6) are mutually exclusive, Pioneer
Investment Serv. Co. v. Brunswick Ass. Ltd. P'ship, 507 U.S. 380, 393 (1993), and (b)(6) only
applies when there is justification for relief other than those set out in the more specific clauses
of Rule 60(b). The time limit under 60(b) would be meaningless if the same type of conduct
could justify a later motion under Rule 60(b)(6). 12 James Wm. Moore Et Al., Moore's Federal
Practice~ 60.48[1]-[2] (3d ed. 2010). Thus the majority's efforts to characterize the operator's
error in sending its contest to the wrong MSHA office as "extraordinary circumstances" instead
of as a "mistake" under 60(b)(1) are well intentioned but misguided.

A final reason why we decline to try to fit this round peg of a 60(b)(1) case into the (bX6)
a square hole is that the operator here is not faultless. In most cases holding that extraordinary
circumstances do exist so as to justify relief, the moving party is totally without fault and "almost
unable to have taken any steps that would have resulted in preventing the judgment from which
relief is sought." Moore's if 60.48[3][b]. As the Supreme Court has recognized, "[i]f a party is
partly to blame for the delay [in not taking-timely action], relief must be sought within one year
under subsection (1) and the party's neglect must be excusable." Pioneer, 507 U.S. at 393.
Granting relief and reopening this case after this significant delay contravenes years of
well-settled Commission case law. See, e.g., Newmont USA Ltd:, 31 FMSHRC at 810; Celite
Corp., 28 FMSHRC 105, 107 (Apr. 2006); J.S. Sand & Grav.el, l.nc., 26 FMSHRC 795, 796 (Oct..
2004), Lakeview, 19 FMSHRC at 28-29. The majority's reliance on the assertion that the
operator "reasonably believed that it had timely contested the penalties at issue," does not suffice
to overturn ye,ars of Commission precedent barring claims such as Master Products' that are filed
one year after an order becomes final. Although the operator's confusion regarding the contest
procedures is regrettable, we are reluctant to change our longstanding approach in order to
accommodate .the particular facts of this case. Consequently, we respectfully dissent. ·

33 FMSHRC Page 654

Distribution:
Maria Teresa Mazorra
Master Products Corp.
P.O. Box 2409
Toa Baja, PR 00951-2409
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 Adriiinistrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite9500
Washington, D.C. 20001-2021

33 FMSHRC Page 655

33 FMSHRC Page 656

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N. W., SUITE 9500
WASHINGTON,D.C. 20001
(202) 434-9933
March 1, 2011
CIVJLPENALTYPROCEEDINGS

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

Docket No. KENT 2009-755
A.C. No. 15-02709-176578-01

v.
Docket No. KENT 2009-756
A.C. No. 15-02709-176578-02
HIGHLAND MINING COMPANY, LLC,
Respondent

Highland 9 Mine

DECISION
Before: Judge William B. Moran
Appearances: Neil A. Morholt, Esq. on behalf of the Secretary of Labor
Michael T. Cimino, Esq., Jackson Kelly, PLLC, on behalf of Highland Mining
Company, LLC
As noted in the caption, this decision involves two dockets. Docket KENT 2009 0755
alleges two violations at the Respondent Highland Mining Company's ("Highland" or
Respondent), ;E:lighland 9 Mine. The first, a section 104(d)(2) order, Order Number 8489815,
alleges a failure to follow the approved roof control plan, in violation of 30 C.F.R. §
75.220(a)(l). That Order, issued on December 3, 2008, alleged that the violation was significant
and substantial, involved a high degree of negligence, was reasonably likely to occur and could
reasonably be expected to result in lost workdays or restricted duty.
The proposed assessment was $15 ,971.00.
The second violation contained within this docket was also a section 104(d)(2) order,
Order Number 8492281. Issued on December 9, 2008, it cited the mine for accumulations of
combustible material in the 5B belt conveyor entry, alleging that it constituted a violation of 30
CFR §75.400. The gravity and negligence were designated with the same evaluation given for
the roof control violation described next above. Thus, the order was marked as significant and
substantial, with high negligence, that it was reasonably likely to occur and would result in lost
workdays or restricted duty. The issuing inspector also considered the violation to be an
unwarrantable failure. The proposed assessment was $32,810.00.

33 FMSHRC Page 657

For Docket Number KENT 2009 0756, one out of some 33 alleged violations remained in
dispute. This was a 104(a) citation issued on December 9, 2008, for operation of the 5 B belt
conveyor not being maintained in safe operating condition. Marked as significant and
substantial, the citation, Citation Number 8492282, also listed the gravity as "reasonably likely"
for an injury to occur, that it could reasonably be expected to result in lost workdays or restricted
duty and that the negligence was considered to be high and the proposed assessment set at
$14,373.00. 1
For the reasons which follow, the Court affirms the violations, and each of the special
findings contained in the citation and orders. 2 It also adopts each of the proposed penalties, and
therefor the total civil penalty to be imposed for the three violations is $64, 752.00.3
fu order to set the stage for understanding the Court's summary and view of the testimony
presented, the following overview is presented.
The section 104(d)(2) order, Order Number 8489815, alleged a failure to follow the
approved roof control plan in that there were nine (9) rows of roof bolts where the spacing
between the bolts was too wide. Highland does not dispute the excessive widths existed. fustead
it contends that as the roof was in relatively good condition and as the condition was difficult to
detect, the order should be reduced to a 104(a) citation, deemed non S&S, and as unlikely to
result in an injury.

1

The Court's original decision in this case incorrectly listed the proposed assessment as
$15,971.00.
2

The Court fully considered the post-hearing briefs. Any contention not expressly
discussed in 'this decision means that it was rejected by the Court.
3

The parties stipulated that the proposed penalties will not affect the Respondent's ability
to continue in business, that the Respondent is engaged in mining and that it affects interstate
commerce, that it is subject to the 1977 Mine Act, that the Court has jurisdiction to hear the
dockets, that all citations/orders issued in connection with these dockets were properly served
upon the Respondent, that the Respondent demonstrated good faith in abating the violations, that
the proposed data sheet as well as the contested assessment sheets for these dockets, as contained
within Exhibit A, and the R 17 Assessment History Report, may be admitted into evidence. Tr.
11. Also, the parties have stipulated that there was not a clean inspection as of the last D order
immediately prior, which would have been August 29, 2008. That is, there was not a clean
inspection prior to the issuance of the two orders involved in this case. Tr. 11. The Petitioner
asserts that the predicate citation was an August 281h Order. Respondent's Counsel agreed that
between August 29, 2008 and December 3, 2008, with the latter date being the first of the two D
orders in this case, there was no clean inspection. Thus, Respondent concedes that the
December 3, 2008 order was correctly classified as a D 2 Order, but does not concede that there
was no clean inspection between August 2007 and August 2008. Tr. 12.
33 FMSHRC Page 658

For Order Number 8492281, a section 104(d)(2) Order, Highland was cited for
accumulations of combustible material in the 5B belt conveyor entry, in violation of 30 CFR
§75.400. Highland disputes both that the violation was unwarrantable and the significant and
substantial designation. Included among a host of defenses asserted by Highland are that the
condition was attended to in a timely and appropriate manner, that the problems were not as
serious nor as extensive as MSHA claimed, and that Highland had no prior notice that this type
of accumulations problem was of concern to MSHA.
Last, a 104(a) citation was issued for the 5 B belt conveyor not being maintained in safe
operating condition. It was issued in conjunction with the issuance of the D Order, No. 8492281.
Marked as significant and substantial, the citation, Citation Number 8492282, was also listed as
involving "high negligence" on Highland's part. Respondent disputes not only both of those
special findings, but also the conditions MSHA claimed to exist with the belt in that it disputes
that the belt was cutting or rubbing the belt structure. MSHA believes that, together, the Citation
and the Order increased the likelihood of a reasonably serious incident occurring underground,
namely a fire or an explosion, which would have affected the 18 miners working inby.

FINDINGS OF FACT
The testimony involving the allegation that Highland failed to follow the approved roof
control plan, in violation of30 C.F.R. § 75.220(a)(l), pertaining to Docket KENT 2009 0755
began with MSHA inspector Tony Fazzolare. That inspector issued a section 104(d)(2) Order
on December 3, 2008, alleging that the violation was significant and substantial, involved a high
degree of negligence, was reasonably likely to occur and could reasonably be expected to result
in lost workdays or restricted duty. Order No. 8489815, Gov. Ex P 13, the roof control plan in
effect at the time, P 14, Fazzolare's notes and P 15. Tr. 425.
Inspector Fazzolare has a long history of employment in mines and as a mine inspector.
Tr. 426-427. Fazzolare stated that a flexible conveyor train or flexible belt, described as an FCT
unit, differs in the entry width in that a belt entry can be 21 feet wide, as opposed to the usual belt
entry maximum of 20 feet. Tr. 431. An FCT unit cuts at angles. That is, crosscuts are cut on
angles to allow the FCT unit to move from entry to entry more easily becausw such FCT units
can't make a 90 degree turn. Tr. .431. On the day in question Fazzolare was at the mine to do a
respirable dust survey for the Number 4 unit, which is an FCT unit. Tr. 432. Fazzolare began by
looking for any imminent dangers in the No. 9 entry. However when he continued upon reaching
the No. 5 entry he noticed a row of bolts going down the middle that were crooked. With the
miners' representative, Mr. Alby, he measured the distance between the bolts, finding nine rows,
continuous rows, that were wider than permitted under the roof bolt plan. The No. 5 entry is a
belt entry, which has a 21 foot width. Tr. 436. Fazzolare used a standard map of a typical room
and pillar arrangement so that he could record what he observed about the bolt placements. Tr.
437. Exhibit P 14. Thus, Fazzolare recorded on the map to show the nine continuous rows that
were wider than 5 feet. Tr. 437- 438. Specifically, Fazzolare found four rows with spacing

33 FMSHRC Page 659

approximately 5 feet 7 inches, two rows with 5 feet 11/2 inches, and three rows with spacing of 5
feet 5 inches. Tr. 438.
Fazzolare found this at the first row inby the last open crosscut. Tr. 439. Typically, the
miner operator, the FCT operator and the miner helper will be in the entry. Tr. 439. While that
entry was an active one, they were not removing coal at the time Fazzolare spotted the problem.
Tr. 439. Fazzolare's notes also indicated that he marked the surveyor tag where he found the
problem. This was at <,lpproximately tag 10 plus 40. Tr. 440. The inspector knew when the area
had been bolted because the preshi:ft examiner had walked under it and placed his initials on the
left rib. Thus he knew it was bolted prior to 1:45 in the afternoon because the preshi:ft
examiner's initials were inby the area and the examiner wouldn't have gone in the area unless it
had been bolted.. Tr. 441.
Fazzolare noted that on his map he marked areas of concern with the roof in that area.
These consisted of a "moderate slip in the top." This is sometimes described as a cutter or
runner, and involves conditions where draw rock has been breaking and falling. Tr. 442.
Fazzolare remained concerned about those "slips" because, while the area at tag 9 plus 52 had
been taken of, he was concerned that the slip problem could continue inby. Tr. 443. Thus, this
condition caused Fazzolare to have greater concern about the roof bolt spacing issue. Tr. 445.
The reference he made to "draw rock" was part of the slip issue. At any rate, upon issuing the D
Order, the Unit was shut down and the bolts installed. Tr; 448. Order Number 8489815 was
issued by Fazzolare on December 3, 2008 for failing to follow the approved roof control plan, in
that there was wide bolt spacing in the Number 5 entry. Tr. 451.
While the Plan requires that roof bolts be no wider than 5 feet, he found 9 continuous
rows that were in excess of the 5 foot limit. Tr. 451. The standard cited was 75.220(a)(l), the
requirement to submit and follow an approved roof control plan. Tr. 452. Fazzolare was
concerned th.at with the slip outby, the slip would continue in the wide bolt spacing inby and that
part of the roof could fall. Tr. 452. The inspector considered it ''reasonably likely" an injury
would occur, as there had already had part of the roof fall on the previous crosscut outby. Tr.
452. If hit, he believed a miner would suffer lost work days or restricted duty. Tr. 453.
However, at the hearing, he believed that one person was a more realistic number of the number
exposed, not ten as he originally listed. Tr. 453. In terms of negligence, which he considered to
be "high," the inspector noted that the preshift examiner, who was also the previous face boss,
missed this violation of the plan. Tr. 453. It was an obvious condition, Fazzolare believed,
because of the wavy way the row went in. That is to say, because the bolts were not in a straight
line, he was able to 'eyeball' the problem, spotting it right away. Tr. 453. The condition had
existed for at least one shift, because it had been bolted on the day shift. Tr. 454. Fazzolare was
sure the problem was not outby the last open crosscut because he used a map sketch to record his
observation. Tr. 455.
Although Counsel for Highland suggested that perhaps there is no need to record
problems in a preshi:ft exam if the problem will be corrected immediately, Fazzolare did not

33 FMSHRC Page 660

agree with such a hypothetical practice. Tr. 462. The inspector noted that he cited Highland for
failing to recognize the obvious hazard, not for ignoring a condition that it knew about.
Fazzolare also believed that the second shift foreman should have seen the problem as well. Tr.
464.

The Respondent's main defense for this violation appears to be that it was not a knowing
violation on the part of those that should have seen the spacing problem. Tr. 460- 465. Although
Fazzolare agreed that Highland addressed the slip in No. 5 entry by "spotting up" roof bolts, this
occurred after the draw rock had fallen out. Tr. 470. Although Respondent noted that the draw
rock had already fallen out, the inspector's concern was that the slip would continue towards the
face and therefore to the rows that were too wide. Tr. 472. While an attempt was made to have
the inspector appear to be too rigid, by asking him if roof bolts had to be "perfectly spot[ted]
exactly 5 feet apart from each other," he aptly noted that one can always space those bolts at less
than the maximum allowable width. Tr. 473. When asked, Fazzolare stated that he did believe
that the 9 rows of improperly spaced roof bolts affected the integrity of the roof support. Tr. 4 76.
Although he was presented with a MSHA procedure instruction letter that allowed for
intermittent roof bolt spacing exceedances ofless than 6 inches, Fazzolare did not believe that
applied here because the letter only allows for "occasional variences," not 9 continuous rows of
spacing problems. Tr. 479.
Highland called Slade Kuykendall who was a section foreman for the second shift at the
mine on the day in issue. Tr. 483-484. Kuykendall stated that the first shift pre-shifter called out
his report to him that day but there was no mention of any roof bolting spacing issue mentioned.
Tr. 485. No miner advised him of the bolt spacing problem nor did he. note the issue. Tr. 485486. Had he observed the problem he would have corrected it immediately. Tr. 486..He
believed that the area had been bolted on the previous, that is the day, shift. Tr. 487. He did not
agree with F~olare's opinion that the slip4 was running towards the face. Rather he believed it
was running into the crosscut. Tr. 490. Although Kuykendall stated the improper bolt spacing
was not obvious, he noted that he had been no closer than 50 feet to the condition and that, at that
distance, it was hard to see such a spacing issue. Tr. 491.
Jeffrey Wilkins was also called by Highland. He was employed by the mine as a section
foreman on the day shift on December 3, 2008. Tr. 500. His duties include performing preshi:ft
exams and roof bolts are part of that. Tr. 501. No one informed him of the roof bolt spacing
problem and he offered that the bolters would not tell him if they bolted with spacing too wide.
Tr. 503-504. He also expressed that he would not be able to note a bolt discrepancy of7 inches;
he would need a tape measure to tell. Tr. 505. Despite 36 years of mining experience, he has

4

Kuykendall referred to the condition as a "cutter," while Fazzolare called it a "slip."
Whatever term is applied, it refers to a roof condition. In Kuykendall's opinion this condition is
not a problem unless the roof is ''working," that is, making noise. One can hear the pressure. Tr.
489.
33 FMSHRC Page 661

never visually observed during a preshi:ft exam an area where the bolts are spaced too wide. Tr.
507.
Government witness Felix Caudill, an MSHA ventilation specialist in the Madisonville
office, District I 0, has long experience in mining, both with MSHA and in private employment. 5
His experience includes being a belt examiner. Tr. 59. Caudill is familiar with the Highland# 9
ventilation system. That system employs a single exhaust fan. Such an exhaust system creates a
negative pressure because it pulls air out of the mines. Tr. 64. Caudill was at the Respondent's
mine on December 9, 2008, along with his supervisor, Inspector David West. He was there to go
to the number 5 unit. That unit is a split air unit, meaning that intake air comes up the middle
entries and then splits at the face, from which it exits, to a return on each side. 6 Tr. 69. West and
Caudill traveled to the number 5 unit at which point West decided to walk the 5 B belt while

5

The Government's first witness was MSHA coal mine inspector Archie Coburn. His
testimony is placed in a footnote because the court's determinations here are not dependent upon
that testimony. However, the information in this footnote still constitutes findings of fact.
Coburn is quite familiar with the Highland 9 mine. On September 19, 2008 during the closeout
meeting at the mine, MSHA advised that it would have to step up its enforcement due to the
number of section 75.400 accumulations violations. Tr. 38. Coburn asserted that Highland
official Mr. Milburn acknowledged that the mine had a problem with accumulation on the belt
lines 'and that he was planning to hire more belt cleaners to keep the spills cleaned up. Tr. 39-40.
MSHA inspector Charlie Jones notified Highland at that time that its negligence would go up if
anymore 75AOO violations were issued. Tr. 43. MSHA Inspector West, who issued the citation
and order for two of the three violations addressed in this decision, was not present when Charlie
Jones put Highland on notice in September 2008 that 75.400 violations were not excusable and
that its negligence would increase and he stated that his determinations regarding the violations
addressed in this decision were was not based on Jones' warning. Tr. 248-249. Although the
Court has determined that the circumstances surrounding the order and citation issued here are
sufficient to make the needed determinations without it, and while West's determinations as to
unwarrantability were not based on the earlier warning about the mine's accumulations problems,
nevertheless it is fair to consider that factor as an independent additional basis for the Court's
findings in that regard. Highland's Scotty Maynard admitted in his testimony that the mine was
advised about the 51 accumulations violations issued to it during the fourth quarter of2008. Tr.
405-406. The contention that the majority of those accumulations violations did not involve
belts is, in the Court's view, a distinction without meaningful difference, because they did pertain
to the problem of accumulations, wherever they happened to occur.
6

In that arrangement the primary escapeway is in the main intake. The secondary
escapeway is in the entries that are the belt entry and the supply road entry. They are separated
from the return and the primary by a solid concrete block stopping which is built in the crosscuts
between those entries. Tr. 70.
33 FMSHRC Page 662

Caudill went to the SA tail. 7 Caudill found an accumulations problem at the 5Abelt8 then
proceeded one crosscut over, to the supply road and from there started traveling towards the No.
S unit until he met up with Inspector West at crosscut 14. Tr. 77. Caudill then walked the
distance between the supply road and the belt entry, at crosscut 15. At that time West told him
he had some 20 bottom rollers turning in coal. Because of that, West had him start at the tail of
that belt (i.e. the area closest to the unit) and walk outby to meet him. Tr. 78.
Caudill then found loose coal at crosscut 63, along with coal loading up on one side of the
belt, causing the belt to run up on the structure from the tail to crosscut 54, a total of 15
crosscuts. Tr. 79. Caudill noted that finding rollers running in loose coal at crosscut 63 is the
same problem he observed at the tail of SA. Tr. 80. In sum, Caudill found bottom rollers
running in loose coal at crosscut 63 and misalignment running a distance of lS crosscuts.9 Tr.
81. He then met Inspector West at crosscut 63. At that point, West told Caudill to continue with

7

The 5 B head drive dumps on to the S A tail; that is, coal coming off the 5 B dumps on
to the S A. Accordingly, the 5 A tail is closer to the portal and as one goes inby the 5 B belt is
next. Tr. 72. At the S A tail, Caudill found the last 4 bottom rollers to be turning in loose coal
and coal fines. This problem had been "cleaned halfway across," but the job had not been
completed. Tr. 72. The accumulations were 3 feet long, a foot wide and 8 to 10 inches deep and
he noted that the accumulations were cupped around the bottom rollers. Tr. 73. These were
accumulations of coal and a bottom roller was turning in direct contact with the accumulations, at
least half-way across. Significantly, the mine was running coal at that time and a bottom roller
running in coal creates the hazard of a .frictional point. That is, such coal provides the fuel and
the friction provides the heat. As there was also air, that completes the '"triangle" for a fire to
occur because one has heat, fuel and air. Tr. 73-74. Caudill stated that Respondent's emplOyee,
Troy Cowan, who was with him at that time then contacted the belt cleaners to come there and .
start cleaning those belts. Tr. 74.
8

Although the Respondent objected to the introduction GX P 5, involving the SA belt, as
this case involves alleged problems with the SB belt, the exhibit was admitted because the 5A
belt is essentially continuous with the 5 B belt. The 5 B belt is adjacent, that is, one crosscut
over to the supply road. The Court concluded that, given the proximity to the 5B belt and that
the problem was detected at essentially the same time that the problems on the 5B were found,
and that the same class of problems was involved, coal accumulations, the SA finding is useful,
contextually, to evaluating the problems alleged along the 5B and it is also pertinent to assessing
the credibility of the conditions claimed by the inspectors.
9

Caudill found rollers turning in coal at crosscut 63 but no other rollers turning in coal.
Tr. 96. He could not say if those rollers were warm or hot to the touch. Tr. 97. He also
observed that the metal frame was shiny .from the belt having rubbed against it, although his.
notes did not include that finding. Highland did not dispute that there could be shiny frames.
Instead it argued that such conditions were old, having occurred from the belt frames' use in
prior locations. Tr. 98.
33 FMSHRC Page 663

his ventilation re~iew. 10
A primary defense of the Respondent is that it was diligently addressing the
accumulations issue and it points to the belt clean-up work being performed by miner Cavanaugh
at the time West identified them. In this regard Respondent tried to have fuspector Caudill
concede that Cavanaugh must have been doing his job, addressing the SB belt accumulations.
However Caudill did not oblige with that view, responding that if West came behind Cavanaugh
and still found 20 bottom rollers turning in coal from crosscut 1 to crosscut 15, and Cavanaugh
had already been there, then that miner "evidently []hadn't done what he was supposed to do."
Tr. 104.
Further, when it was asserted that Caudill must not have been claiming that West found 20
rollers running in coal from crosscut 3 to crosscut 15, Caudill maintained that in fact was his
assertion and that it was reflected in his notes. Tr. 104-105. Those notes reflect that he met West
at crosscut 14 and that there were "[t)wenty bottom rollers in coal." Tr. 105. While
Respondent's counsel suggested that the location of those 20 rollers wasn't explicitly stated in
his notes, Caudill advised they could only be between crosscut 3 and 15 because West had started
at crosscut 1 and Caudill had met him at 14. Tr. 105.
MSHA Inspector David West, who has a bachelor of science degree from the University
of Kentucky in mining engineering and some twenty years of underground mining experience in
private industry before starting work with MSHA in 2003 is presently the ventilation specialist
supervisor in the Madisonville district office. Tr. 128-130. As noted, Felix Caudill is one of the
two ventilation specialists that work for him. Tr. 131. West, like Caudill, is familiar with the
Highland # 9 mining ventilation system. Tr. 132. In this regard, he noted that the mine uses a
main exhaust fan in its negative pressure arrangement. In the negative or "exhaust" system
normally belt air and the supply road air will be travelling inby and dumped into the return air .

10

In proceeding with his ventilation review, Caudill took air intake readings and in doing
that he learned that there was belt air traveling to the face. Tr. 85. One is not permitted to use
belt and supply road air to ventilate the faces. Tr. 85. As there was more air going out than was
coming in, Caudill knew there was belt air going to the face. Tr. 86. A smoke tube employed by
Caudill confirmed that the air was going inby, through the airlocks and straight to the intake. Tr.
86-87 and GX P 6, the citation he issued for belt air going to the face of the No. 5 unit.
Although the Respondent oojected to this information, as the ventilation violation is not in issue
here, the Court concludes that it is relevant, contextually, as it shows the close interrelationship
which can occur between belt and ventilation issues and hence it speaks to the importance of
addressing coal accumulations. Caudill listed 18 persons affected because that is the number of
miners on that unit. Tr. 89. He also issued a violation for an airlock constructed using nails and
spads, as opposed to framed on wooden frames or hilti nails. The mine's use of that arrangement
allowed air from the belt to enter the intake air at that unit. Tr. 91.

33 FMSHRC Page 664

course before it gets to the units. Tr. 133.

West testified about the events of December 9, 2008 at the Highland Mine. 11 Upon
arriving at the mine at 7: 10 a.m., among other tasks, he looked at the preshift books. This
included the belt examination book entry for 12/8/08 on second shift which listed that the 5A tail
was wet and dirty and the 5B header to crosscut 15 was black and that the header and tail at
crosscut 41to60 was "dirty"12 and bottom roller 19 and a half, 22 and a half" Tr. 139.
A reference to black means that there is a good possibility that there is float coal dust or coal dust
in the area. This is dangerous because if ignited or put in suspension and ignited, one could have
a fire or explosion. If coal dust is in direct contact with a frictional or heat source, a fire can
occur. Tr. 139-140.
West also noted that the belt examiner listed "5A cleaned spill at head and tail area. SB
cleaned head 41 to 46, 58 to 60.'' Those were listed as corrections, reflecting what had been
cleaned. Tr. 140. Those corrections were written on the second shift on December 8, 2008 or
the shift prior. Tr. 141. West agreed that it is possible that second shift corrections are actually
to correct the conditions that are listed during the day shift. Tr. 141. As to any corrections being
made during the third shift on December 9, 2008, West explained that when he arrived at the
mine, the third shift was still in the mine, that is, they had not come out yet. Tr. 141. Therefore
if that third shift had done any corrections, they likely had not put them in the belt books at that
time.
After reviewing the books, West, accompanied by company representative Troy Cowan
and others, entered the mine. As there were some hazards listed in the record book, 13 West stated
that it was his intention to go to the SB belt first, to be sure that the area had in fact been cleaned
up and rock dusted. Tr. 154. 14 West's inspection of the 5 B belt started at the drive and
proceeded inby, that is, heading towards the No. 5 Unit. Tr. 153. At this time West was checking
to see if the hazards, as listed in the book outside, such as the note that crosscut 3 to 15 was black

11

GX P 8 reflects the notes on that date.

12

In West's experience, a reference that the header and tail at crosscut 41 to 60 are
"dirty" means that the belt needs to be shoveled. Tr. 140.
13

West confirmed that before he entered the mine that day he had viewed the inspection
reports and with those in mind he was looking particularly to see if those problems had been
corrected. West agreed that one of the things he noted in that report was the presence of float
coal dust The belt rurming on a frame and the bottom roller running in coal were not listed in
the report. Instead, he discovered those things during his inspection. Tr. 157.
14

On the way to the 5B, a loose rib was discovered and a citation was written for that
condition. Tr. 151.

33 FMSHRC Page 665

in color, had been corrected. Tr. 153. West found some belt cutting into the frammg between
crosscut 2 and 3, that is, the bottom belt was cutting into the roller stands. The belt was
operating and it had cut into the stand about a half inch. Tr. 154. West then felt the belt frame
with his hand and found that it was hot. Tr. 155. West added that, from crosscut 3 on inby as far
as he could see, the belt was black in color from rib to rib and there was float coal dust on the
belt framing. The entry at that location is 19 to 20 feet wide and he saw float coal dust from
crosscut 3 to 15. That is a length of about 840 feet, and the float coal dust was about 1/16 to 1/8
inch in depth. Tr. 155, 160. The Court believes that it is helpful, in appreciating the scope of this
problem, to envision a length of nearly 3 football fields. hnportantly, West observed no one as
he traveled that distance. Tr. 160. West also observed 20 bottom rollers running in coal and coal
dust between crosscuts 3 and 9. West then confirmed that what he observed was coal by digging
under the bottom rollers. Tr. 156. West stated that the coal accumulations underneath the rollers
were black from crosscut 3 to 9 were cupped around the rollers, "basically submerging them."
Tr. 157. He explained that this creates a fire hazard due to frictional heating and the rollers
moving in coal causes it to become more powdery, causing float coal dust. Tr. 158.
Between crosscut 6 and 7 West also found the bottom belt cutting into the frame. Tr. 158.
This is another fire source and there was float coal dust on the frames too. Tr. 159. West also
found the belt rubbing against the framing at three additional places between crosscut 11 and 12.
Tr. 159. At that location it felt warrn to hot to the touch. Tr. 159. Concerning that 840 foot
distance, West opined that since it was already in the examination book, the mine operator knew
of the problem and it should have been rock dusted on the third shift prior to production
beginning on the day shift. Tr. 160. In fact, West suggested that it could have been rock dusted
even earlier, that is, on the second shift after the examiner found the condition. Tr. 161. This
earlier action was warranted, West believed, because if the examiner found the belt black in
color, that examiner should have notified the mine foreman right then. Tr. 161. It was West's
opinion that the condition had existed for two shifts. Tr. 161. The basis for this view was that
the belt was examined some time during the second shift on the 8th. That is uncontested. West
then arrived at a time into the morning on the 91h. Therefore, all of the third shift had passed and
part of the prior day's second shift and part of the following day shift on the day he was there.
Adding those together, the time elapsed totals nearly two shifts. Tr. 161.
Upon discovery ofthis 840 foot area, West found Troy Cowan, the mine's ventilation
supervisor, along with the miners' representative and Felix Caudill and he then issued an order
and hung his red tag 15 at crosscut 3. Tr. 161. Having found those problems, West then made the
decision that he needed to walk the rest of the belt. Tr. 162. He accomplished this by teaming up
with Caudill, sending him to the tail piece of that belt and having him walk from there to him,
that is walking outby towards West, while West started at crosscut 15 and started walking inby
towards Caudill. Tr. 162. In that process, West next found coal under the belt 4 inches deep at
crosscut 21 to 26. This encompassed a distance of about 350 feet. West explained that this was

15

The red tag signifies a closure order for a particular area which has the effect of taking
such area out of service. Tr. 162.
33 FMSHRC Page 666

coal and coal dust and that it had been there for quite awhile, by which he meant one to two
production shifts with the belt running, as it takes time for a buildup of 4 inches to accumulate.
Tr. 162-163. Following that, from crosscuts 30 to 38, West observed 4 inches of coal under the
belt. That distance, 8 crosscuts, amounts to 560 feet. Tr. 164. This too would have existed for
one to two production shifts. Tr. 164. Then, from crosscut 39 to 41, a distance of about 140 feet,
he found 3 bottom rollers running in coal and the belt on the supply road side was not level,
causing it to spill coal. Tr. 164. Showing his fairness and attention to detail, West volunteered
that at that location only 3 bottom rollers were observed to be running in coal. Thus the entire
140 feet was not running in coal. Tr. 165. However there was float coal dust there, 1/16 to 1/8
inch deep, and on the belt frame, rib to rib. The coal dust, as opposed to the rollers running in
coal, was not limited, because it was there over the 140 foot distance and its 20 foot width. Tr.
165.
Again, West stated that there was no one working in that area, so the problems were not
being addressed. Next, West spoke to crosscuts 43 to 44, where he found 4 inches ofloose coal
under the belt. 16 Tr. 166. It was not until crosscut 49 that West observed anyone working on the
belt. Thus, he computed that he walked some 3,430 feet, or more than 6/10th of a mile, before
observing someone working on the belt. Tr. 167. At that crosscut, No. 49, he saw Peny
Cavanaugh, who informed West that he was shoveling the belt. Tr. 167. This was around 10:45
a.m. Tr. 167. Cavanaugh told West that he was given a list of places to shovel that morning at
the start of his shift and state.d that he spot cleaned the SB belt drive to crosscut 3 and then moved
to crosscut 41. Tr. 168-169. Although Cavanaugh told West that he had shoveled from crosscut
41, West found accumulations at crosscuts 43 and 44. Tr. 169.
West noted that Cavanaugh was wet from sweat, indicating that he had been working
hard that day. West concluded that having a single man deal with the accumulations was not
enough because they were too extensive. Tr. 169. The Court agrees with that conclusion as well.
Further, in West's estimation, the problem was not solely about shoveling; rock dusting also
needed to be performed. At the time West met him, Cavanaugh still needed to shovel eleven
more crosscuts, a distance of about 770 feet. Tr. 170. Again, it is useful to envision a length of 2
and Yz·football fields, a significant distance. West believed it would have taken Cavanaugh at
least the rest ofhis shift to complete the shoveling. That is to say, to shovel the areas cited in the
belt inspection record from the second shift of December 8, 2008. Tr. 170. Given the amount of
workers and the time ultimately expended to correct the accumulation problems, West's estimate
was too modest. Until West had 'red-tagged' the belt that morning, issuing his D order, the mine
had been producing coal at the face. Tr. 171. It was West's view that if the problems he found
had been addressed at the start of that day shift, it would have taken seven or eight men about the
entire shift to correct the problems. 17 Tr. 172. West stated, without equivocation, that the mine

16

The distance between two crosscuts is about 70 feet. Tr. 167

17

West's estimate was based on his personal observations and did not take into account
Caudill's observations. Accordingly Caudill's observations of problems would be in addition to
33 FMSHRC Page 667

should not have been running coal until the problems listed in the belt inspection record had been
corrected. Tr. 172. The Court, finding West's accounting of the problems credible, agrees.
Following West's meeting with Cavanaugh, he discovered more problems. From
crosscut 50 to 51, there were two bottom rollers rurining in coal and there was float coal dust
1116 to I/8th of an inch deep. Float coal was on the frame as well. Tr. 172. West then met up
with Caudill at crosscut 53. Caudill informed West of the problems he saw of the belt rubbing
the frame on the belt entry from crosscut 53 to the tail piece, in twenty locations and this was
recorded by West in his notes. Tr. 174. Caudill also reported to West that he found float coal
dust between crosscuts 62 through 64 and that it was 1/16 to 1/8 of an inch deep. When the
Court asked if that was a significant amount of coal dust, West advised that it has been shown
that a lot less than that, probably only half what was found, can cause an explosion if it gets
suspended in the air. Tr. 174. West later learned that the mine assigned 14 people to correct the
conditions that he and Caudill found on the 5 B belt and that it took them 5 hours to correct the
problems. Tr. 176, 185. That totals about 70 man hours and accordingly the Court agrees with
West's characterization that the correction required an extensive amount of time.
Referring to his contemporaneous notes, West related that the rock dusting began on that
day at 12:45 p.m.. Tr. 179. The rock dusting started outby the airlocks, at the temporary
stoppingsjust outby the tail piece, in the belt entry. Tr. 180. This resulted in inundating the area
with rock dust up to and including the last open crosscut on both sides of the unit. Tr. 180. ·
Thus, rock dust was visible in the air, and it had traveled through the air locks on to the unit and
then mixed with intake air and traveled to the last open crosscut and from there to both sides of··
the unit. 18 Based on those observations, West knew that some of the belt air was traveling

those West observed. Tr. 173.
18

Regarding Inspector Caudill's citation, No. 8492213, Gov. Ex. P 6, alleging that rock
dust inundated the.last open crosscut, Highland's Cowan later stated that the 5B tail piece on that
day was inby the airlocks. Under the mine's plan it was allowed to have the tail piece just inby
the airlock and thus it was about 40 feet inby the airlock curtain. Tr. 342. Thus, Cowan asserted
that if miners were rock dusting the tail piece, it would inundate the section because the feeder is
in the intake and therefore it would inundate the last open crosscut. Tr. 342. Cowan maintained
that rock dust inundating the last open crosscut does not mean there is belt air traveling to the
face. Tr. 342. Cowan admitted that he did not know if French told Cavanaugh to rock dust along
the SB belt. Instead his assertion to that effect was based upon that it would be "normal
procedure." Tr. 354. Also, he did not know where they started rock dusting to abate the
violation, rather he made assumptions about that. Tr. 355. Cowan was also asked about
Caudill's citation, No. 8492214, in which Highland was cited for using spads instead ofHilti
nails. A Hilti nail has a one inch head on it but a spad, which is a wedge piece of steel, does not.
Tr. 344. Cowan admitted that the spad is not approved under the plan but he maintained that it
serves the same purpose. Use of such spads would not, Cowan stated, have any effect on rock
dust inundating the unit. Tr. 344. Cowan did not believe that the mine had belt air at the face.
33 FMSHRC Page 668

towards the last open crosscut on the unit. Tr. 181. That meant the belt air had a higher negative
pressure than the primary escapeway on the main intake that was traveling to the unit. With that
situation, belt air and supply road air is trying to get to the last open crosscut on the unit. 19
Around 3:25 p.m. that day the conditions on the 5 B had been corrected and West met with
Scotty Maynard, the mine assistant superintendent. Tr. 182, 185. According to West, Maynard
told him that he knew about the hazards in the book but that he didn't have sufficient rock dusters
to correct the problem and that he decided to go ahead and run the unit (i.e. produce coal) anyway.
Further, Maynard allegedly told West that higher ups, in St. Louis, would have to approve pulling
personnel from production to correct problems like West cited. Tr. 183. West's notes at p. 27. In
fact, West was so surprised at Maynard's candor that he asked him again if he meant what he had
stated and Maynard confirmed his statement to him. Tr. 184. Having later heard the testimony of
Mr. Maynard, the Court credits West's testimony about this conversation.
Although Maynard also told West during that conversation that he had found only five
bottom rollers running in coal between crosscut 3 and 15 and that he had cleared them,20 West
then went to that area but found five rollers that were still running in coal. Maynard then
returned to that area and re-shoveled it. Tr. 185.
In citing the Respondent for a violation of75.400 forthe accumulations of loose coal, coal
· dust and float coal dust, West reiterated that it presented a risk of fire and/or explosion, that the
likelihood of injury was reasonably likely in that it presented a discrete hazard to miners because a
fire or explosion would inundate the escapeways with smoke and carbon monoxide. Again, West
found that the ingredients were present because there was fuel, oxygen in the airflow. and ignition

Instead he believed they had "stuck a rock dust hose through the airlock and rock dusted the tail
piece," as reqµired. Tr. 344-345. The problem with that belief is that, as noted in footnote 17,
below, West saw rock dust inundating the last open crosscut. While the Court credits West'
testimony on this, ultimately, it concludes ·that this issue is more of a distraction from the
accumulations problem involved in this decision.
19

West later clarified that he also observed rock dust inundating the last open crosscut,
along with Caudill. Tr. 231. West did not agree that if the mine rock dusted inby the airlocks,
rock dust would be inundating the last open crosscut. Rather, he maintained that this would not
occur continually and that it would clear but that, in this instance, it did not clear. Tr. 231-232.
Thus, because the air pressure was not right, the rock dust on the section did not clear directly
after rock dusting began. Tr. 233. As noted, the whole matter of rock dust at the face can be
viewed as a misfocus, because the case is not about a violation for the presence of rock dust at
the face. Rather, the rock dust issue was offered as additional evidence that belt air was moving
to the face. Tr. 245-246.
2

°Maynard acknowledged that there was an area that was blacker than what he had
expected to find. Tr. 184.
33 FMSHRC Page 669

sources from the· frictional rubbing of the belt on the frame. Tr. 188. The ventilation violations
found by Caudill was a factor considered in determining the number of persons affected. Tr. 189.
West marked lost work days or restricted duty as the type of injury which could occur and 18
persons, the number of miners on the No. S unit, being affected. Tr. 189. This number was based
on the number of persons inby and West provided considerable detail about what could happen,
including the air courses which would be affected by smoke or carbon monoxide traveling inby
towards the section. Tr. 190. The Court agrees with, and adopts, West's analysis of the S & S
dimension to the cited violation.
In addition to his statement that Scotty Maynard had acknowledged his awareness of the
problems, West also expressed that Terry Johnson, the third shift mine foreman, was aware of the
conditions that were cited, as he countersigned the record book on the surface. Tr. 191. West
concluded that the conditions he observed justified classifying Highland's negligence as "high,"
but he did not list it as ''reckless disregard" because he to into account that Perry Cavanaugh was
shoveling the belt at some point. That effort by Cavanaugh was insufficient however, in West's
estimation, because the problem was too extensive for one person to take care of it. Tr. 193. The
result was that West issued a 104 (d)2 order, which reflected his view that it was an unwarrantable
failure on Highland's part. Tr. 193-194. The Court also agrees with this evaluation and adopts it
as findings in support of its unwarrantable determination.
Following his testimony regarded the problems on the SB belt, West identified the
violation he issued on December 9, 2008 for a section l 72S(a) violation. Tr. 195, GX P 11.,
Citation No. 8492282. That standard requires equipment to be maintained in safo operating
condition. Tr. 19S. This related to the SB bottom belt rubbing the hangers in several locations,
presenting the risk of fire or explosion from frictional heating. 21 Tr. 19S. He believed this
condition "could easily'' start a fire and that the same 18 miners would be affected as with the
other citation. 22

21

The citation stated that the "bottom belt is ru:bbing the roller stands in approximately
twenty seven places form crosscut two to crosscut 69 ... Four places are cut into the bottom roller
stands Yi inch in depth. The places where the belt is cutting the frames were hot to the touch and
all others where the belt is rubbing is warm to the touch. In several of these places float coal
dust, coal dust, and loose coal accumulations exist [the citation referenced citation 8492281
which was just discussed in this decision]. The out of align ronning belt conveyor is very
obvious and extensive when inspector made belt entry. The mine operator shut the belt conveyor
down until cleaning, rock dusting, and the proper belt alignment could be made." Citation
8492282 (emphasis added). The Court finds that all noted aspects of the citation were
established by a preponderance of the evidence of record.
22

The Court inquired of West why he did not choose the other characterizations of
"unlikely" or "highly likely." West explained that those choices were not appropriate because a
fire would occur if the belt continued to operate under the conditions he observed. It would only
be a matter of time before such an event. On the other hand, West did not opt for "highly likely"
33 FMSHRC Page 670

Tr. 196. For this citation. West also considered it to be 'high negligence' due to the amount of
spillage that was present and his opinion that this had to have existed for one to two shifts. Tr.
197.
Upon cross-examination. the Respondent attempted to show there.was some mitigation.

Jn that respect, West agreed that if a mine operator identifies a problem in a record book and made
an effort to address it, that is mitigation. Accordingly, West agreed that the December 9, 2008
entry in the belt books for SA and SB noted the hazards listed and the corrections that had been
made. That belt book report in issue was for December 8th and West agreed that he reviewed the
corrections that were listed on the second shift for that date.23 Tr. 201. While there was some
mitigation that does not mean that the required special findings should be rejected and, upon,
consideration of the entire record, the Court upholds those findings.
As to West's view that the violation was high negligence and unwarrantable failure, he
stated that while Scisney wrote that 41 to 60 were dirty, when West viewed the area he saw that
only 41to46 and 58 to 60 had been cleaned. Tr. 206. Thus, he listed the situation as
unwarrantable and high negligence because nothing had been done between crosscut 3 and 15.
Tr. 206. Accordingly, West compared what was listed in the belt book with what had been
accomplished when he viewed the problems. Tr. 208.
Although the corrections on December 8, 2008 belt inspection report for the second shift
only referred to cleaning on 41 to 46 and 58 to 60, West agreed that his unwarrantable and high
negligence findings were based on the corrections he read in the belt inspection report for the
second shift .on December 8, 2008. However, West's position was strengthened by his remark
that his view was also based on what he observed underground. Tr. 208. Accordingly, while
West did not dispute that he observed Cavanaugh shoveling on the belt, and that he could have
been shoveling for about two hours before West saw him, it was West's point that the effort was
both late and ~ insufficient response. The Court agrees with that assessment. West also did not
question that Cavanaugh was given a list of areas that needed to be addressed that day and that
Cavanaugh told him he had been assigned to shovel the belt that day. Tr. 210. While Respondent
suggested that West had no reason to doubt that Cavanaugh wou1d rock dust after he finished

as he prefers not to list that unless the condition is approaching an imminent danger. Tr. 198-199.
23

Jn a matter that ultimately is not of determinative consequence, West stated that the belt
examiner had listed that the belt was black from crosscut 3 to 15. Tr. 202. However the
Respondent challenged West's note in that regard, because Respondent's Exhibit 5, belt
examiner Scisney' s report lists the belt as 'black to gray' not simply 'black. ' West maintained
that his notes would have listed ''black to gray'' if that had been written at the time he reviewed
Scisney's report. Thus, the implication was that the language about "gray" had been added
subsequently. While not willing to claim that falsification occurred, West stood by his remark
that he would have included the "gray'' language had it been there. Tr. 202- 204. The Court
finds it unnecessary to resolve this conflict.
33 FMSHRC Page 671

shoveling, West responded that Maynard told him he didn't have anyone to rock dust. Tr. 212.
Further, while the Respondent tried to challenge West's tally of the number of crosscuts
with problems, West, upon checking his notes stated that there were some 26 crosscuts where
there was coal that needed to be cleaned up or float coal dust was present. Tr. 214. West added
that there were several other places where there was "just coal underneath bottom rollers." Tr.
214. Thus, West maintained that there were 26 crosscuts that needed to be cleaned in addition to
areas where there was coal under bottom rollers.
As pointed out by the Respondent, Highland did not run production on the third shift on
December 8, 2008 and West arrived at the mine right after that third shift. Tr. 224. Further, West
agreed that there is no requirement to walk or examine a belt if it's not going to be operated or
worked on during a shift. Tr. 224. Although West did not assert that Maynard knew more about
the conditions beyond what was listed in the belt examination report, he at least knew about the
report's identification of problems. 24 Tr. 225. In the Court's view, these contentions miss the
larger point that the extent of the problem, the attendant aggravating conditions, as identified by
West, the time that had elapsed since the examiner's report, and the insufficient response, all add
up to, and amply support, his special findings.
Addressing a major contention of the Respondent, as evidenced through its demonstrative
exhibit enlargements of the belt inspection report presented at the hearing, with the point of
comparing the belt inspection report for the second shift on December 8, 2008 with the
corrections during the second shift on December gth, West was asked to assume that the December
8, 2008 correction sheet for the second shift was dealing with the corrections for the belt
inspection report made during the day shift on December 8, 2008. West's response was that if the
corrections were for the day shift inspection, then the conditions he would consider the situation
to be more serious. Tr. 250.
Accordingly, West stated that when, on December 9, 2008, he examined the second shift
belt inspection report of December 8, 2008, he.assumed that the corrections for those problems
had been made by then. Tr. 251. West maintained that the corrections the mine operator had put
forward were for the first shift on December 8th and that the no corrections for the second shift had

24

Upon cross examination of West's claim that Terry Johnson, Guy Scisney and Dean
Arnold had knowledge of the conditions listed in his order, West agreed that his basis for
imputing knowledge to Johnson was the fact he countersigned Scisney's inspection of the 5 B
belt and he agreed that Johnson's knowledge would be limited to what Scisney had written in his
inspection report. Tr. 217-218. However, West did not back away from his position that if one
has bottom rollers running in coal when the belt report says 'dirty' or if one has float coal dust on
the belt when it says 'black,' one should not be producing coal. Tr. 219. The Court agrees with
West's assessment that coal production should not be ongoing under such conditions.
33 FMSHRC Page 672

been put in the books, if in fact any corrections at all had been made by then. 25 However, the
Court concludes and finds that, given all that West found underground, even buying into the
Respondent's argument for the moment, the extent and nature of the problems West found are
determinative here. Simply put, Highland should have done more in reaction to the belt exam
report and done so sooner.
Ezra French, Highland's mine superintendent was called as a witness by the Secretary.
At the time of the events in issue in this proceeding, he was the mine foreman. French agreed that
if a report listed an area as 'dirty,' he would assign someone to clean it up and that means
shoveling. Tr. 264. He also confirmed that the phrase "black to gray" means that the area needs
to be rockdusted. Tr. 264. Although on December 9, 2008, the mine had a "3 person dedicated
belt crew duringproduction shifts," the other 3 miners on the 'belt crew' would have been
handling anywhere from 13 to 16 belts at the Highland underground mine. Tr. 266.
French conceded that, at least one purpose of a belt corrections page is to show that a
correction has actually been made along a belt and he moved back from his earlier contentio.n that
belt examiners may exaggerate problems, allowing that a given examiner ''may see things a little
differently than another individual." Tr. 266-267. He admitted that on December 9, 200826 he

7- 5 West understood, without agreeing, that it was Highland's claim the corrections were

not listed in the page after the problems identified in belt report. Tr. 252.
26

Some questions were directed to belt exams prior to those in issue here. Directed to the
5B belt exam for December 3, 2008, which listed header to crosscut 15 as black to gray, French
agreed that the corrections page, at page 26, listed nothing regarding cleaning that area and he
conceded that meant that no dusting occurred on that night, which was the idle shift, after the
exam conducted on the second shift for December 3rd. Tr. 272. French was then asked to view
the examination part for the first shift on December 4th, and its notation for 5B of a small buildup under the head roller, outby end of takeup dirty. It also listed black to gray from header to
crosscut 30. Then, French was asked to look at the second shift corrections for that day shift
report, which stated only "5B is clean header and tail and crosscut 38 and 3" and he agreed that
meant no rock dusting had occurred during that shift. Tr. 273. GX at page 29. Next, French was
asked to look at the second shift inspection report for December 4, 2008, and he agreed it stated,
'header to crosscut 15 black to gray" and that the next page reflects that it was dusted at the 5B
header, but with no note that dusting occurred after that header to crosscut 15. Tr. 273. GX 12 at
30.
Critically, French agreed that if the inspection reports show only that there was rock
dusting on the 5B for the third shift on December 51\ he has no evidence to show more rock
dusting was done. Tr. 274. French also conceded that at page 35 for December 5, 2008 and the
remark that 5B header to crosscut 15 black to gray, there is no mention about 5B, but area belts
2A, 2B, 4Aand 4B are mentioned as being dusted in parts. Tr. 274. For December 6th, 'at page
38 of the exhibit, French agreed that it states 5B black to gray header to crosscut 28, tail dirty. Tr.
33 FMSHRC Page 673

had no personal knowledge of the conditions along the 5B belt. Tr. 267. fustead he was working
entirely off of the information he had from the belt examiner. Tr. 267. He added that belt
examiners at the mine may only list areas that need to be addressed but that if an examiner
encounters an immediate danger, those must be addressed immediately. Tr. 268. The Court finds
that it is fair to note that French contradicted himself on what belt examiners do and do not write
down and he stated that he found it difficult to explain what he was trying to express. Tr. 270.
French acknowledged that the mine does the bulk of its rock dusting on the third shift and that, in
December 2008, one of his duties as the mine foreman was to review the belt examination report
for the preceding shift. Tr. 271.
French agreed that for the day shift of December 8, 2008, the examination for the 5B
header reflects that it was cleaned on header to crosscut 15 and tail, but there is no mention of
rock dusting. Tr. 276. GX at page 43. French also conceded that, by signing his name on the
report, he was going back to correct conditions that were listed during the second shift on
December 6, 2008. Tr. 276. GX at page 40. As mentioned earlier, French admitted that he
reviewed the belt inspection report prepared by the second shift belt examiner on December gth
and he identified R 5 as the belt examiner report for that date. 27 R5 is the same exhibit as P-12.

275. Further, he agreed that for the second shift for 'corrections,' it reflects 'clean header and
tail crossqut 15 to 25 but that it says nothing about cleaning or rock dusting from the head or after
the header to crosscut 15. Tr. 275. Ex. at p. 39. So too, he agreed that for the second shift the·
inspection report shows 5B header to crosscut 15, black to gray and that for December 7, for the
idle shift, it mentions only cleaning but no rock dusting and there is no mention of cleaning on
-SB. Tr. 275. Ex: 9 at page 40. Further, at page 42 of the-exhibit, pertaining to December 8th's
idle shift, there is no mention about dusting or cleaning of the SB. Yet there is mention of ·
dusting at 2A tail, 2B dump point and the slope tail. Tr. 275-276. Thus, it is fair to conclude that
if dusting w~s not listed; it did not occur.
27

French read from Exhibit R 5, the second shift belt examination report of December 8,
2008, which was made by Mr. Scisney. "\\'hile the Court does not find French's take on that
report to be critical to its findings of the conditions involving the citation and orders in issue
here, it is included as a footnote for the purpose of completeness. In any event, French noted that
it recorded: "5B header to crosscut 15 black to gray. Header and tail and crosscut 41to60 dirty.
BR 19 and a half22 and a hal£" Tr. 290. French interpreted that information as follows: '5B
header to crosscut 15 black to gray' means an area needing dusting. "Header and tail and
crosscut 41 to 60 dirty" means that area also needs to be cleaned. "BR 19 and a half 22 and a
half' indicates "this is third shift information that there is a roller that needs to be seen; that it
refers to a roller that is damaged "a little bit" and needs to be changed out. Tr. 291. French
confirmed that Scisney would have filled out the actual belt examination book at the end of
Scisney's shift, around 11 p.m. Tr: 292. This would be done before the third shift would go
underground. Tr. 293. Problems identified by the belt examination are not corrected until the
next shift. That is, corrections are not made during the same shift in which the belt exam is
conducted. Tr. 294. For this reason, French stated that corrections listed on the second shift for
33 FMSHRC Page 674

French, asked what Highland attends to on the third shift regarding belts, responded that
among other tasks, rollers may be changed out, and tank dusters will be used during that shift too.
Belts are not examined during that shift because they are not running at that time. Tr. 295. French
stated that he did have four shovelers working on December 9, 2008, the day the order in this case
was issued, although normally there would only be three shovelers. Tr. 295. French added that it
was his practice to make a copy of the belt inspection report and then use a "highlighter" and
make a list for each person working the belts on a given day. Tr. 296. On December 8, 2008,
French assigned Perry Cavanaugh to clean the 5 B belt. Tr. 297. He handed Cavanaugh the list
he had copied with the tasks on it and he stated that he highlighted the entire line next to 5B. Tr.
297. French described Cavanaugh as an "older gentleman," who recently retired and is probably
63 or 64 now. Tr. 298. French confirmed that there is some subjectivity in assessing the
conditions with belts as, for example, one examiner might call a belt gray while another might
describe it as 'black to gray,' for example. Tr. 298- 299.
French believed that Cavanaugh could do the tasks identified with the 5B belt, which
included cleaning crosscuts 41to60 and rock dust at the header to crosscut 15 if it was needed.
Tr. 300. In sum, from French's perspective, there was nothing out of the ordinary regarding the
SB belt report for that day, no MSHA inspector had ever told Highland if it finds conditions such
as 41 to 60 dirty or a belt described as "black to gray," that the belt should be shut down; that he
had no knowledge on December 9th of rollers running in coal; and that nothing in Scisney's report
suggested the belt was out of alignment or rubbing a frame making it hot or warm to touch. Tr.
302-303. He also disagreed with the claim that someone would need to call St. Louis before
sending anyone to help a shoveler who needed help with assigned tasks.28 Tr. 303.
Troy Cowan, Highland's ventilation supervisor, was called as a witness for the
Respondent.. Cowan was working at the mine on the day West issued his 104(d)(2) order, number
8492281 and he went underground with MSHA's ·west and Caudill on December 9, 2008~ Tr.
323. Cowan agreed that West walked the 5B belt line. Tr. 324. While Cowan stated that West
told him that he wanted the belt aligned from crosscut 7 towards the header, Cowan couldn't see
the belt rubbing anywhere but he acknowledged where it might "had possibly rubbed in the past."
Cowan believed that the cuts in the frame also occurred at some time in the past, as he asserted
that the frames were five or six years old and they had been used in different panels. Tr. 325.
Clearly, Cowan maintained that he saw nothing to support West's claim of misalignment. Tr.

December 8, 2008 are addressing items listed on the day shift for December 8, 2008, that is to
say, from the first shift. Tr. 294-295.
28

French agreed that back in December 2008 Scotty Maynard was French's supervisor
but now French is his supervisor. Tr. 315-316. French admitted that he wouldn't know if
Maynard was required to call St. Louis before shutting down a belt, but he still added that such
calls do not happen. Tr. 316.
33 FMSHRC Page 675

326. Also, he felt no heat on the frame. 29 Tr. 326. At that point, Cowan related, West told him he
wanted the belt shut down and he advised Cowan that he, West, would be walking to the header.
Tr. 326. Cowan then walked from crosscut 7 to 3, where the telephone was located, so that he
could have the belt shut down. Tr. 327. Cowan essentially disagreed with all of West's view of
the situation. For example, he noted only "dry flakes" under rollers, but nothing to support
West's view that they were "dirty." Tr. 327. The "flakes" in Cowan's view were mud, or
"fireclay," not coal.
The stark differences between Cowan's perception of the conditions and those of West,
prompted the Court to note that great disparity between their assessments of the same area. Tr.
328. When the Court asked just how far apart Cowan's view was from the inspectors' view of
things, asking if Cowan felt that not only was no Order justified but perhaps there shouldn't have
even been a citation, Cowan would not go quite that far, as he acknowledged a spill at crosscut 39
to 41, but he called this a "fresh" spill and that was right where Cavanaugh was working to clean
it up. Tr. 329. With that kind of opinion expressed by Cowan, the Court observed that his
testimony suggested that not even a citation should have been issued.30 Tr. 329. It is of
significance that Cowan admitted however that he was not with West during the whole time of his
inspection. Tr. 331. As Cowan put it, "[h]e took off by himself and walked to the unit." Tr. 331.
Further, when West did meet up with Cowan and informed him of more areas that needed to be
addressed, Cowan did not argue with him, acknowledging, "I couldn't. I hadn't made the areas
yet." Tr. 332.
Yet, despite the extent of his disagreement with MSHA's view, Cowan hedged when the
Court questioned him, asking if he believed there was no need to even clean the belt areas cited.
Thus, the Court concluded that Cowan's primary objection was whether the violation was
unwarrantable, as Cavanaugh had been assigned to the problem. While he admitted there was
spillage, stating "I'm not saying we didn't have spillage there. We did," he asserted it was just
one fresh spi~l. Tr. 339-340.
The Respondent also called Guy Scisney. Scisney, an hourly employee of the Respondent,
is a mine examiner, a job which includes examining belt lines. He was a belt examiner on
December 9, 2008 and he identified Exhibit R 5 as the report he filled out upon returning to the·
surface following that examination. Tr. 366. Scisney stated that 'black to gray' means the rock
dust was not adequate and needs dusting. 'Black' means immediate attention is needed. 'Dirty'

29

Cowan did agree that if there was a fire in the belt entry, smoke could enter the
secondary escapeway. The secondary escapeway is adjacent to the belt entry. Tr. 355.
30

Mr. Cowan's dramatically different view of the conditions observed by Inspector West
continued as he went through the areas listed in West's Order. Tr. 333-339. Cowan agreed that
Caudill had issued an accumulations violation at the 5A tail roller prior to West's order for the
5B, but as with his view of West's citations, he did not think the conditions cited by Caudill were
as bad as the inspector's evaluation of the conditions. Tr. 350.
33 FMSHRC Page 676

means there is an accumulation of coal and coal dust on the belt line. Tr. 371. He later elaborated
that 'black to gray' means the 'second stage' that is, a belt in need of rock dusting, but for which
there is some time to get that fixed and does not need immediate attention. Tr. 378-379. In
contrast, the description 'black' means you need to do something now. Tr. 379. Scisney would not
seek to have a belt shut down unless he believed there was an imminent danger. Tr. 375. In
response to questions from the Court, he stated that, as to Exhibit R 5, his signature is the top one
on the page listing "bad rollers 19 and a half." Tr. 375. Scisney's practice when examining a belt
was to write down what he observes on a pad and then he will write it down again when he goes to
the surface, unless he is sure he can remember where a particular problem was spotted. Tr. 376.
Scisney stated that he did not see rollers running in coal along the SB belt on December 8,
2008. Tr. 379. Nor did he observe a belt out of alignment nor cutting the belt structure when he
made his exam, though he conceded there was evidence that it had been out of line and that there
had been cutting in the past. Tr. 380. However, Scisney did believe Highland should have had
somebody on the issues he identified in his belt exam, because he did write it up as "dirty." Tr.
381.
He did agree that it was possible that a belt examiner could report a condition and then the next
belt examiner could observe the same condition before the belt crew could get to. the problem. Tr.
382.
Scisney confirmed that the belt was running that day and that prnduction usually stops around 1:30
a.m. He would have completed his belt exam sometime around 5 or 6 p.m .• that is, around seven
hours earlier. The shifts run about 10 hours, Scisney explained. Tr. 384.
Scisney acknowledged~ belt exams are important. As he put it, '"It's got to be done, because
we [ ] have mine fires here in west Kentucky, a couple of mines were shut all the way do"n
because of mine fires, and they originated on the belt line. So you've got to examine them daily,
because if you don't we won't have [a] job and people could get killed in there." Tr. 385. Scisney
explained that it's his job to write it up and "then it's left up to Highland to address it." Tr. 386.
He added that his exam noted "three different findings [Highland] needed to address."
These were to change two rollers, rock dust black to gray from the header to 15 and third, 41 to 60
dirty. Tr. 386. Scisney had to examine four to five miles of belt back in December 2008, a task
that he does ·most of it by using a golf cart, although there are areas where he has to get off the cart
and walk the belt.
Scoti: Maynard, who is the assistant superintendent at the Highland #9 mine and who was at
the mine on the day of the citation in issue was called by the Respondent. Tr 391, 393. As he does
not review belt exam reports he did not know of any issue for the SB belt until Troy Cowan called
him and advised that inspector West was issuing an order and a citation for it. Tr. 393. Maynard
essentially agreed with Cowan that the conditions on the belt were nothing like West's contentions.
Tr. 394- 400. Regarding the tail piece and the rock dusting there, Maynard stated that as soon as
one sprays, the dust will go into the intake air and go to the face, exiting both sides, left and right.
Tr. 402. The tail is located in.by the airlocks. That arrangement is used so the neutral air can't go

33 FMSHRC Page 677

to the face. The neutral air is channeled to the return. Tr. 402. As to whether belt air was being
used to ventilate the face, Maynard denied that occurred, as he sprayed the rock dust over the top <J
the feeder into the intake air, which then goes to the face. Tr. 402.
After the rock dusting, Maynard wanted to find the whereabouts of Inspector West, ''to
make sure he [West] was satisfied that we could start the belt back up and start producing coal."
Tr. 403. Maynard denied that he ever told West that he knew about the problems identified in the
belt exam and that he went ahead and produced coal anyway. Tr. 403-404. He also denied makin1
any statement about the need to call St. Louis before miners could be pulled off the face. Tr. 404.
While Maynard agreed that he met with MSHA's Charlie Jones on September 19, 2008 anc
that Jones advised him that there were 51 section 75.400 violations in the fourth quarter of2008,
he stated that the majority of those involved accumulations on things other than belts. Tr. 405. In
response to that meeting the mine purchased another tank duster and two trickle dusters, and took
other actions in response to that meeting. Tr. 405-406.

Inconsistent with his assertion that he did not observe anywhere near the problems that
West claimed were present, Maynard stated that after seeing Cavanaugh working on the 5 B belt,
he ''toid him to get the man-trip and go up to the unit and start bringing people out and distribute
on the areas that we needed shoveled." Tr. 407. Those would be the areas where Maynard stated
there were essentially no or minimal problems. Further, Maynard implicitly acknowledged
Highland's reluctance to stop producing coal by stating that if a belt examiner sees a roller running
in coal; the examiner is to either fix it himself"or shut the belt off. At that point he'll get plenty o
attention." Tr. 407.
Other than relying on the mine's usual practices, Maynard admitted he had no personal
knowledge that rock dusting occurred between when Scisney examined the belt on December glh
and when he examined the belt the following day. Tr. 411.
Regarding the need to rock dust between crosscuts 7 and 3, Maynard would only agree that
"[b]ehind the bottom roller you could have put some dust on it." Tr. 417. However, he didn't feel
there was any need to do that and it was just Scisney's opinon. Tr. 418. In his deposition,
however, Maynard stated that crosscuts 7 to 3 needed dusting. Tr. 419. While Highland talked
about its trickle duster, Maynard admitted that on the morning of December 9, 2008, it was about 3
miles from the SB header. Tr. 424.

ADDITIONAL FINDINGS, DISCUSSION, AND CONCLUSIONS OF LAW
Applicable Law:
Unwarrantable failure

33 FMSHRC Page 678

The Wiwariantable failure terminology is taken from section 104(d) of the Act, l. 30 U.S.C.
§ 814(d), and refers to more serious conduct by an operator in connection with a violation. fu
Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that
Wiwarrantable 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); see also Buck Creek Coal, Inc. v. MSHA,
52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure test). The
Commission has recognized that whether conduct is "aggravated" in the context of unwarrantable
failure is determined by considering the facts and circumstances of each case to determine if any
aggravating or mitigating circumstances exist. Aggravating factors include 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 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. See, for example, Consolidation Coal
Co., 22 FMSHRC 340, 353 (Mar. 2000) ("Consol").

Significant and substantial
A significant and substantial or "S&S" violation is described in section 104(d)(l) of the
Mine Act as a violation "of such nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation
is properly designated S&S, "if, based upon the particular facts surroWiding 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). fu
Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission explained in order to establish that a
violation of a µiandatory safety standard is significant and substantial Wider 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. Accord, Buck Creek
Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, fuc. v. Sec'y of Labor, 861
F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria). fu US. Steel Mining Co., Inc.,
7 FMSHRC 1125 (August 1985), the Commission explained that the third element of the Mathies
formula "requires that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." U.S. Steel Mining Co., Inc., 6 FMSHRC 1834,
1836 (Aug. 1984). It noted that it is the contribution of a violation to the cause and effect of a
hazard that must be significant and substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866,
1868 (Aug. 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984). Further,
the question of whether any particular violation is S&S must be based on the particular facts
surroWiding the violation. Texasgulf, fuc., 10 FMSHRC 498, 501(April1988). Last, any
determination of the S&S nature of a violation must be made in the context of continued normal

33 FMSHRC Page 679

mining operations. U.S. Steel, 7 FMSHRC at 1130; Halfway, Inc., 8 FMSHRC 8, 12 (January
1986).

Additional Contentions, Comments and Conclusions regarding the Orders and Citation.
1. The Roof Bolt Spacing Violation.
Regarding the section 104(d)(2) order, Order Number 8489815, alleging a failure to
follow the approved roof control plan, in violation of 30 C.F.R. § 75.220(a)(l), Respondent
contends that neither the S & S designation nor the unwarrantable finding are justified. Regarding
that finding, made by MSHA Inspector Fazzolare, Highland contends that the inspector's basis
rested upon a "sma11 slip" some 90 feet away from the condition. Also, Respondent contends that
the Secretary failed to show that ''the bolt spacing discrepancy itself was reasonably likely to have
an adverse impact on the stability of the mine roof." R's Br. at 33.

As to the unwarrantable finding, Highland asserts that the condition was neither extensive
nor oflong duration. Id. at 35. Beyond those contentions, it notes this was not a situation where
Highland had knowledge of the bolt spacing discrepancy and then ignored it. Merely contending
that Highland "should have known" of the condition does not justify an unwarrantability finding.
Further, it maintains that there were no "aggravating circumstances" present to show
unwarrantability. Id. at 35-36.
The Court does not share Highland's perspective. First, the condition. while escaping
Highland officials' notice, was immediately obvious to Fazzolare. Although the precise distances
of exceedance were presented as difficult to detect, it was the crooked row that first caught
Fazzolare's ~ttention, not measurements. That condition was readily apparent and it should have
alerted Highland; just as it did Inspector Fazzolare. That it escaped Highland is not sutprising as
Highland's Mr. Wilkins has never detected wide bolt spacing in 36 years of mining experience.
Kuykendall, though the section foreman, also found that the condition was not obvious. However,
this was understandable as well, as he stated that he never got closer than 50 feet to the condition
and from that far away it was hard to detect spacing issues. While the distances of exceedance for
any particular row varied, the more pertinent point is that the problem was over nine continuous
rows. Accordingly, the MSHA document referring to small exceedances does not apply because
that only allows for "occasional variances." Nine continuous rows with excessive spacing is not
an occasional variance. Beyond that, even that MSHA document, highlighted by the Respondent,
allowed the occasional exception only for exceedances less than six inches. Here, Fazzolare found
several instances that did not even meet that, quite limited, exception allowing for small
exceedances.
Also relevant, the preshift examiner was exposed to the wide spacing, as his initials had
been recorded on the rib. Fazzolare was justifiably concerned about the moderate slip in the top

33 FMSHRC Page 680

and that it might continue inby, presenting the risk that there could be a roof fall. That this was
listed as ·~easonably likely" is more than demonstrated by the fact that the mine already had part of
a roof fall on the previous crosscut outby. Accordingly, based on the record evidence, as already
set forth in more detail supra, the special findings are all upheld.
2. The accumulation of combustible materials violation.
Regarding the second violation contained within this docket, the section 104(d)(2) order,
Order Number 8492281, issued on December 9, 2008, for accumulations of combustible material
in the SB belt conveyor entry and alleging a violation of 30 CFR §75.400, the Court upholds the
special findings, and therefore determines that the violation was significant and substantial, with
high negligence, that it was reasonably likely to occur, would result in lost workdays or restricted
duty, and that the violation was the result of an unwarrantable failure.
The Respondent asserts that the Secretary failed to establish the "confluence of factors"
necessary. to show that the violation was significant and substantial. It also maintains that the
condition would have been corrected if normal mining operations had continued, as the 60 plus
year old Cavanaugh had been assigned to the problem and the belt would have been examined
again during the 1st shift on December 9, 2008. R's Br. at 15-16. The Respondent also maintains
that the violation was not unwarrantable.
Respondent argues that fuspector West got it wrong in asserting that the belt was black.
Instead, it was noted by Scisney as ''black to gray." R's Br. at 17. Beyond that, Respondent also
asserts that West assumed that the corrections noted in the December 8, 2008 belt examination
report were for the conditions noted by Scisney on that same shift. Because Scisney did not record
his belt examination report until the end of the second shift, the 2nd shift crew was correcting the
problems identified in the report for the 1st shift of December 8, 2008. Highland also asserts that
West did not ~ist the violation as a '~eckless disregard," and could not have, because action was
underway to correct the conditions. R's Br. at 18.
More specifically addressing the unwarrantable finding, Highland maintains that
knowledge of the conditions could not be imputed to Highland as it can only be held accountable
for what is reported in the belt examination report. It maintains that Highland "took timely and
adequate action to correct those conditions." R's Br. at 19. Highland thus asserts that the focus
should be on how it responded to the belt report. hI that regard, it contends that assigning
Cavanaugh was a sufficient and fully adequate response. Id. at 21. Respondent contends the
conditions were neither extensive nor did they present a "high degree of danger." Id. Highland
maintains that the conditions identified in Scisney' s report existed for a portion of the second shift,
and for the idle 3rd shift and accordingly correcting them during the 1st shift of December 9, 2008
was timely on its part. Beyond that, the Respondent contends that additional problems must have
occurred after Scisney made his examination and therefore Highland can hardly be held
accountable for what must have transpired after Scisney's exam. Thus, Highland argues that those
subsequent problems existed for an even shorter period of time. Id. at 23.
33 FMSHRC Page 681

It is also Highland's contention that it received no notice that greater efforts were needed
for compliance with accumulations on belt lines. In support of this, Highland first notes that West
himself stated that his findings were not based on any prior warnings but rather on the conditions
he observed at the time he issued the citations/ orders in issue here. Apart from that, it asserts that
the Secretary must "establish the precise nature of the prior violations to show that they would be
relevant to place the operator on notice regarding the violation at issue." Id. at 24 citing Cantera
Green, 21 FMSHRC 310, 312 (ALJ 1999). 31 It is not sufficient, Highland maintains, that the sarm
standard was involved. Still another problem with using past violations of75.400 to establish
notice and therefore unwarrantability, is that the standard is so broad. Whereas the violations
involved here concerned accumulations, the standard is much broader than that. Respondent
characterizes it as a "catch all" standard. Besides, Highland continues, even if notice is considere<l
to have been established; that doesn't mean by itself that unwarrantability has been proven. Id. at
35. Continuing with its claim that unwarrantability was not proven, Highland asserts that applying
the test of considering all the relevant facts and circumstances, no such aggravated conduct was
established. Thus, by its lights, Highland didn't know about the conditions cited in the Order,
those conditions were not extensive anyway, they posed no high degree of danger, none of the
conditions existed for an extended period of time and Highland took adequate and timely steps to
deal with those conditions it knew about and further, Highland made good faith efforts to reduce
75.400 violations along its belt line. Id. 26

In support of its contention that the violation was S & S, the Secretary's view as to Order
No. 8492281 is that the discrete safety hazard was the risk of fire and/or explosion resulting in
fumes, smoke and CO that would flow towards the unit. It was reasonably likely to occur because
of the presence of fuel, oxygen and ignition sources from frictional heating. That amounts to a
confluence of factors. Sec. Br. at 10. The injury would be lost workdays or restricted type duty.
18 persons would be affected because the pressure differential would cause the smoke or carbon
monoxide containinated air to travel down the belt entry and inundate the section. It adds that a
fire or explo~ion would obviously produce graver results.
As to unwarrantability, the Secretary cites Emery Mining Corp., 9 FMSHRC 1997, 2003-4
(December 1987) for the principle that such conduct involves reckless disregard, intentional
misconduct, indifference or a serious lack of reasonable care. In practice, factors to be considered
include, the extent of a violative condition, the length of time it has existed, whether it was an
obvious violation or posed a high degree of danger, whether the operator has been placed on notice
that greater compliance efforts are necessary, and the efforts the operator has made since such
notice. Amax Coal Co. , 19 FMSHRC 846, 851 (May 1997). Further, the Commission has
explained that all the relevant facts and circumstances at least should be considered. Coal River
Mining, 32 FMSHRC 82, 88-89 (February 2, 2010). The Secretary asserts that the conditions were

31

Displaying the candor that is required, Respondent's Counsel does acknowledge that
the Commission has held to the contrary of the view expressed in Cantera Green by stating that
previous conditions need not be identical to those involved in the violation at issue. Peabody
Coal Co. 14 FMSHRC 1258, 1263 (Rev. Comm. Aug. 1992). R's Br. at 24.
33 FMSHRC Page 682

extensive. Thus, this speaks to the scope or magnitude of a violation. The Secretary notes that in
Consolidation Coal Company, 23 FMSHRC 588, 593-594, it was determined that accumulations
of 20 inches in depth, 12 feet long and 8 feet wide at one crosscut, along with other accumulations
some 600 feet in length, were extensive. Sec. Br. at 12. The Secretary contends that the
accumulations in this case were of a similar extensiveness.
The Secretary also asserts that the duration of the cited conditions was considerable.
However, the Secretary also notes that unwarrantability can be satisfied even if the duration is
short, where the other factors point to that conclusion. That aside, the Secretary maintains that at
least 15 hours elapsed with the conditions. Sec. Br. at 14. It notes that the conditions could have
been corrected during the third shift but were not. The Secretary further contends that there was a
high degree of danger associated with the conditions in that there were frictional heat sources in
contact with fuel. Caudill's testimony regarding belt air reaching the face also supports the
confluence of factors element. Sec. Br. at 16.

As to the issue of whether Highland was on notice that greater efforts were needed to
comply with 75.400, the Secretary asserts that past discussions with an operator about
accumulation problems puts that operator on "heightened scrutiny" about the compliance steps it
must take. Enlow Fork Mining Co. 19 FMSHRC 5, 11-12 (Jan. 1997). In this regard the Secretary
points to the testimony of MSHA's Archie Coburn and a September 2008 meeting he attended with
Highland to address the subject of the mine's accumulation violations. Then too, West noted that
less than a week before the violations in this case, he cited Highland for an accumulations violation
along its Main East belt entry.

The Secretary also contends that several Highland agents were aware, or should have been.
of the conditions on the SB belt on December 9, 2008. To establish this, the Secretary notes that
Scisney, as th~ certified belt examiner, is considered to be an agent of the operator when
performing in that role. Sec. Br. at 20. The conditions noted by Scisney were hazards which
Highland needed to address. Beyond that, the third shift mine foreman, Terry Johnson, was aware
of the conditions cited by Scisney in the preceding shift but he took no corrective actions for those.
The Secretary maintains that, putting actual knowledge aside, Highland's agents
''reasonably should have known" of the violative conditions on the SB. The Court agrees with the
Secretary's contentions. Finally, the Secretary maintains that the abatement efforts conducted by
Highland were inadequate. Highland had been informed in the September 19, 2008 meeting with
MSHA that the belt accumulations were a problem but there is scant evidence that Highland did
much to deal with this issue. While there was talk of doing more rockdusting, the fact is that no
rockdusting occurred during the third shift on December 9, 2008. Certainly the evidence shows at
most that Cavanaugh was there to shovel, not rockdust. Here as well, the Court concurs with the
Secretary's arguments.

33 FMSHRC Page 683

3. The failure to maintain machinery and equipment in safe operating condition.
Regarding Citation No. 8492282, within Docket Number KENT 2009 0756, as noted, that
104(a) citation was issued on December 9, 2008, for operation of the SB belt conveyor not being
maintained in safe operating condition. Marked as significant and substantial, this Citation is
closely related to Order Number 8492281, discussed immediately above, as it pertains to the same
matter, accumulations along the SB conveyor belt. Both parties largely focused their energies in
their briefs on that first Order and then applied those arguments, in large part, to this Citation. The
Court has employed the same approach in its decision.
)

As with its analysis for Order number 8492281, Highland believes that no "confluence of
factors" was established by the Secretary. It contends that West erroneously believed that the SB
belt was cutting or rubbing the belt's structure and he could not have made that assessment as the
belt was not running. R's Br. at 27-28. Further, it asserts that the accumulations were not in close
proximity to any heat source. Even where West claimed the belt was rubbing the structure, West
himself admitted there were no fuel sources at those locations. Id. at 28. It takes the same
position, that is, denying West's claim that the belt was running in coal dust, as its witness did not
observe such conditions.
Highland also contends that there was no high negligence for this Citation. From its
perspective, Highland maintains that it neither knew nor should have known about the condition
and, beyond that, there were mitigating factors. R's Br. at 30. It asserts that West's claim that the
condition existed for one to two shifts, means that Scisney should have seen the problems but
Scisney's testimony does not support West's claims. In addition, Highland maintains that the
Secretary's evidence actually shows that some "unpredictable event"' likely occurred sometime
after Scisney' s examination. Id. at 31. Even if these contentions are rejected by the Court,
Highland asserts that there were mitigating factors. These consist of its employment of "belt
examiners to. detect and prevent hazardous conditions" and by the fact that it had assigned a miner
to clean up the conditions. Id. These proactive steps, Highland maintains, justify reducing the
negligence attributable to it.
From the Secretary's point of view, concerning Citation No. 8492282, that violation was
also S & S and high negligence was associated with it as well. As the Court's earlier recounting of
the evidence for this citation amply demonstrates, the preponderance of the evidence supports the
Secretary's position.
Beyond the matters already noted in this decision, the Court wishes to reemphasize and
highlight the following points. However, before making these points, it must be noted that, with
such sharp differences in the accounts of the conditions along the 5 B belt between West and
Caudill for MSHA and French, Cowan, Maynard for Highland, the Court had to determine which
side's account was more credible. To do this, beyond assessing the witnesses during the testimony
and finding that the testimony of West and Caudill was more trustworthy, the Court's
determination of credibility is supported by a very significant and unchallenged fact. Namely, it
33 FMSHRC Page 684

took 14 miners 5 hours to clean up the accumulations and this was after Cavanaugh had been at the
task for some hours. Those uncontested remedial actions taken by Highland are not unlike the
expression that actions speak louder than words. Here the extensive actions required to correct the
conditions West found demonstrate that the testimony from the MSHA inspectors was more
credible.
One would not assign so many miners to perform a task which was as minimal in scope as
Highland's witnesses suggested nor would such a task have required so much time to correct.
A word must also be stated about one of Highland's major contentions. This relates to its
claim that when Scisney finished his belt exam, the shift following that was the evening or "Hoot
Owl" shift. When West arrived the next morning, Highland contends, it was already addressing
the matter with Cavanaugh assigned to the clean up. Highland asserts that it had no duty to deal
with the belt examination findings from the second shift until that morning following the evening
shift.
There are significant problems with that point of view. Highland did know that MSHA had
concerns about its section 75.400 problems, Scisney noted these problems early during the second
shift and had the observations recorded well before the Hoot Owl shift commenced. Highland
could have attended to those identified problems during that time. Further, the idea that an MSHA
inspector could arrive at the mine, become alerted to the problems identified in the belt exam
report and then proceed underground to discover a problem of significant scope which was being
attended to by only a single miner of advanced years, while the mine itself is apparently less well
informed about the conditions easily detected by the mine inspector, is inconsistent with the safety
obligations of a mine under the Mine Act.
Accordingly, with the observation just made borne in mind, the Court finds the testimony
of the MSHA inspectors to be more credible and it adopts the following as additional findings of
fact. At the time Inspectors West and Caudill were at the SB belt, the mine was running coal. It is
undeniable th~t a bottom roller running in coal creates the hazard of a frictional point. That is,
such coal provides the fuel and the friction created by the roller provides the heat. As West noted,
there was also air, and that completes the "triangle" for a fire to occur because one has heat, fuel
and air. Further, again noting that the belt was operating, the Court finds that it had cut into the
stand about a half inch. West then felt the belt frame with his hand and found that it was hot. West
added that, from crosscut 3 on inby as far as he could see, the belt was black in color from rib to rib
and there was float coal dust on ~e belt framing. The entry at that location is 19 to 20 feet wide
and he saw float coal dust from crosscut 3 to 15. That is a length of about 840 feet, and the float
coal dust was about 1116 to 1/8 inch in depth. A length of almost 3 football fields is a very
significant distance. It is noted that West observed no one as he traveled that distance. West also
observed 20 bottom rollers running in coal and coal dust between crosscuts 3 and 9. Significantly,
West then took the important step to confirm that what he observed was coal and he did this by
digging under the bottom rollers. West stated that the coal accumulations underneath the rollers
were black from crosscut 3 to 9 were cupped around the rollers, to the point that basically the
rollers were submerged. He explained that this creates a fire hazard due to frictional heating and
the rollers moving in coal causes it to become more powdery, causing float coal dust.

33 FMSHRC Page 685

Again, West stated that there was no one working in that area, so the problems were not
being addressed. Next, West spoke to crosscuts 43 to 44, where he found 4 inches of loose coal
under the belt. It was not until crosscut 49 that West observed anyone working on the belt. Thus,
he computed that he walked some 3,430 feet, or more than 6/10th of a mile, before observing
someone working on the belt. At that crosscut, No. 49, he saw Perry Cavanaugh, who informed
West that he was shoveling the belt. This was around 10:45 a.m. Cavanaugh told West that he
was given a list of places to shovel that morning at the start of his shift and stated that he spot
cleaned the 5B belt drive to crosscut 3 and then moved to crosscut 41. Although Cavanaugh told
West that he had shoveled from crosscut 41, West found accumulations at crosscuts 43 and 44.
West noted that Cavanaugh was wet from sweat, indicating that he had been working hard
that day. West concluded that having a single man deal with the accumulations was not enough
because they were too extensive. Further, in West's estimation, the problem was not solely about
shoveling; rock dusting also needed to be performed. At the time West met him, Cavanaugh still
needed to shovel eleven more crosscuts, a distance of about 770 feet. One should again call to
mind a length of some 2 Yz football fields. West believed it would have taken Cavanaugh at least
the rest of his shift to complete the shoveling. That is, to shovel the areas cited in the belt
inspection record from the second shift of December 8,2008. Until West had 'red-tagged' the belt
that morning, issuing his D order, the mine had been producing coal at the face. It was West's
view that i-fthe problems he found had been addressed at the start of that day shift, it would have
taken seven or eight men about the entire shift to correct the problems. West's estimate was based
on his personal observations and did not take into account Caudill' s observations. Accordingly
Caudill' s observations of problems would be in addition to those West observed. West stated,
without equivocation, that the mine should not have been running coal until the problems listed in
the beh inspection record had been corrected.
Following West's meeting with Cavanaugh, he discovered more problems. From crosscut
50 to 51, ther,e were two bottom rollers running in coal and there was float coal dust 1116 to l/8th
of an inch deep. Float coal was on the frame as well. West then met up with Caudill at crosscut
53. Caudill informed West of the problems he saw of the belt rubbing the frame on the belt entry
from crosscut 53 to the tail piece, in twenty locations and this was recorded by West in his notes.
Caudill also reported to West that he found float coal dust between crosscuts 62 through 64 and
that it was 1/16 to 1/8 of an inch deep. As noted earlier in this Decision, when the Court asked if
that was a significant amount of coal dust, West advised that it has been shown that a lot less than
that, probably only half what was found, can cause an explosion if it gets suspended in the air.
West learned that the mine assigned 14 people to correct the conditions that he and Caudill found
on the 5 B belt and that it took them 5 hours to correct the problems. That totals about 70 man
hours and accordingly the Court agrees with West's characterization that the correction required an
extensive amount of time.
In citing the Respondent for a violation of75.400 for the accumulations ofloose coal, coal
dust and float coal dust, West reiterated that it presented a risk of fire and/or explosion, that the
likelihood of injury was reasonably likely in that it presented a discrete hazard to miners because a
33 FMSHRC Page 686

fire or explosion would inundate the escapeways with smoke and carbon monoxide. Again, West
found that the ingredients were present because there was fuel, oxygen in the airflow and ignition
sources from the :frictional rubbing of the belt on the frame. The ventilation violations found by
Caudill was a factor considered in determining the number of persons affected. West marked lost
work days or restricted duty as the type of injury which could occur and 18 persons, the number of
miners on the No. 5 unit, being affected. This number was based on the number of persons inby
and West provided considerable detail abol;lt what could happen, including the air courses which
would be affected by smoke or carbon monoxide traveling inby towards the section.
Although the corrections on December 8, 2008 belt inspection report for the second shift
only referred to cleaning on 41 to 46 and 58 to 60, West agreed that his unwarrantable and high
negligence findings were based on the corrections he read in the belt inspection report for the
second shift on December 8, 2008. However, West's position was strengthened by his remark that
his view was also based on what he observed underground. Accordingly, while West did not
dispute that he observed Cavanaugh shoveling on the belt, and that he could have been shoveling
for about two hours before West saw him, it was West's point that the effort was both late and an
insufficient response. West also did not question that Cavanaugh was given a list of areas that
needed to be addressed that day and that Cavanaugh told him he had been assigned to shovel the
belt that day. While Respondent suggested that West had no reason to doubt that Cavanaugh
would rock dust after he finished shoveling, West responded that Maynard told him he didn't have
anyone to rock dust.
Further, while the Respondent tried to challenge West's tally of the number of crosscuts
with problems, West, upon checking his notes stated that there were some 26 crosscuts where there
was coal that needed to be cleaned up or float coal dust was present. West added that there were
several other places where there was ')ust coal underneath bottom rollers." Thus, West maintained
that there were 26 crosscuts that needed to be cleaned in addition to areas where there was coal
under bottom ,rollers. French admitted that on December 9, 2008 he had no personal knowledge of
the conditions along the 5B belt.
Cowan agreed that West walked the 5B belt line. As Cowan acknowledged, West took off
by himself and walked to the unit. Further, when West did meet up with Cowan and informed him
of more areas that needed to be addressed, Cowan did not argue with him, acknowledging, he
couldn't as he hadn't made the areas yet.
After the rock dusting, Maynard wanted to find the whereabouts oflpspector West in order
to make sure that West was satisfied that we could start the belt back up and start producing coal.
Further, Maynard implicitly acknowledged Highland's reluctance to stop producing coal by stating
that if a belt examiner sees a roller running in coal, the examiner is to either fix it himself "or shut
the belt off. At that point he'll get plenty of attention." Tr. 407. This admission by Maynard
speaks volumes about Highland's misplaced priority in focusing upon producing coal in the face of
significant accumulation of combustible materials issues.

33 FMSHRC Page 687

CIVIL PENALTY ASSESSMENT
Having found the alleged violations existed, and affirming each of the special findings
associated with those violations, the Court must assess civil penalties for them and do so by taking
into account the civil penalty criteria set forth in section 11 O(i) of the Act. 30 U.S.C. § 820(1). The
Negligence, Gravity, including significant and substantial findings have already been discussed.
Ability to continue in business. The parties have stipulated that the proposed penalties will not
affect the Respondent's ability to continue in business.
Good faith. The Respondent demonstrated good faith in abating the violations.
History of previous violations. Per the parties' stipulations, the proposed data sheet as well as the
contested assessment sheets for these dockets, as contained within Exhibit A, and the R 17
Assessment History Report were admitted into evidence for this criterion. They stipulated that a
computer printout is the history of prior violations for the Mine for the purposes of this proceeding
Size. Highland Mining Company, LLC, is a large mining operation.
Given the civil penalty criteria discussed above, the Court assesses a civil penalty of $64, 752.00.
ORDER
Within 40 days of the date of this decision, Highland Mining Company, LLC, is ORDERED to
pay a.civil penalty of$64,752.00 for the violations set forth above. Upon payment of the penalty,
this proceeding IS DISMISSED.

William B. Moran
Administrative Law Judge
Distribution:
Neil A. Morholt, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230,
Nashville, 1N 37219-2456

Michael T. Cimino, Esq., Jackson Kelly, PLC, 1600 Laidley Tower, P.O. Box 553, Charleston, WV
25322

ryg

33 FMSHRC Page 688

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

March 1, 2011
CIVIL PENALTY PROCEEDINGS

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
Docket No. LAKE 2009-490
A.C. No. 11-03054-183603-01

ADMINISTRATION (MSHA),
Petitioner

Docket No. LAKE 2009-491
A.C. No. 11-03054-183603-02
Docket No. LAKE 2009-531
A.C. No. 11-03054-186350-01

V.

Docket No. LAKE 2009-532
A.C. No. 11-03054-186350-02
Mine ID: 11-03054
Mine: Willow Lake Portal

BIG RIDGE, INC.,
Respondent

. DECISION
Appearances:

Tyler McLeod, Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado, for Petitioner;
Arthur Wolfson, Jackson Kelly, Pittsburgh, Pennsylvania, for Respondent.

Before:

Judge Miller

These cases are before me upon petitions for assessment of civil penalty filed by the
Secretary of Labor ("Secretary''), acting through the Mine Safety and Health Administration
("MSHA"), against Big Ridge, Inc. ("Big Ridge"), at its Willow Lake Portal mine (the "mine" or
"Willow Lake"), 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" or "Act"). This matter involves four separate
docket numbers, which include 78 total alleged violations, and a total proposed penalty of
$481,148.00. As set forth more fully below, the parties have agreed to resolve all but nine of the
violations, leaving those for decision here. The parties presented testimony and documentary
evidence at the hearing held in Evansville, Indiana, that commenced on December 1, 2010.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

33 FMSHRC Page 689

Big Ridge, Inc. operates the Willow Lake Portal Mine, an underground, bituminous, coal
mine, in Saline County, Illinois. The mine is subject to regular inspections by the Secretary's
Mine Safety and Health Administration pursuant to section 103(a) of the Act. 30 U.S.C. §
813(a). The parties stipulated that Big Ridge is the operator of the mine, that its operations
affect interstate commerce, and that it is subject to the jurisdiction of the Mine Act. Jt. Ex. 1.
Willow Lake is a large, bituminous, coal mine requiring at least two inspectors to timely
complete a quarterly inspection. (Tr. Vol. I, 20). The mine utilizes the room and pillar system
of mining and is a gassy mine subject to a five day spot inspection. (Tr. Vol. I, 20,50)

Docket No. LAKE 2009-490
a. Order No. 6683136
On March 12, 2009, Inspector Scott Lee issued Order No. 6683136 to Big Ridge for a
violation of section 75.400 of the Secretary's regulations. The order alleges the following:
The accumulations of oil and coal saturated with oil (due to oil
leaks) ranging in depth from Yz to 4 inches deep was known to
management. This condition was observed in the pump motor
compartment on the unit 3 (013/003) section feeder, while the
feeder was running. hnmediately below this compartment was a
pool of oil approximately 3 ft. in diameter and 3 to 4 inches deep,
which appeared to have accumulated from cited location.
Management informed this inspector that they knew they had a
problem in the pump motor compartment and had a part on order
to repair it. The cover for this compartment had been left leaning
on the adjacent rib which indicated to this inspector that work was
still ongoing in this compartment. This same condition was cited
in this compartment on 31612009 for accumulations of oil.
The inspector found that an injury was reasonably likely to occur, that the injury could
reasonably be expected to result in lost workdays or restricted duty, that the violation was
significant and substantial, that two persons would be affected, and that the violation was the
result of high negligence on the part of the operator. The Secretary has proposed a civil penalty
in the amount of$14,743.00.
The cited standard requires 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
permitted to accumulate in active workings, or on diesel-powered and electric equipment
therein." 30 C.F.R. § 75.400.
1.

The Violation

33 FMSHRC Page 690

Scott Lee, an MSHA mine inspector, has worked for the Mine Safety and Health
Administration for nearly 11 years. He has worked in the mining industry since 1975 and has
operated nearly every piece of equipment used in mining. He has held a variety of positions in
coal mines and holds a MA degree with a specialty in mining. (Tr. Vol. L 15-19).
On March 12, 2009, Lee conducted an inspection of the belt line and the feeder of unit 3.
As he looked down the back side of the belt, i.e., the side least traveled, he noticed a large pool
of oil on the ground next to the feeder, as well as a steady stream of oil coming from the pump
motor compartment. He also observed that the cover of the pump motor compartment had been
removed and was sitting on the ground. He could see a steady stream of oil coming off the
fitting in the motor compartment and then forming a large pool of oil on the mine floor. (Tr.
Vol. I, 27-29). Lee dipped his walking stick into the oil and determined that 3-4 inches of oil
had pooled in the area. In addition, a considerable amount of oil had already saturated the coal
on the mine floor. He was accompanied by Ronnie Hughes, a company representative, as well
as a walk around representative from the union. He saw no other miner in the area at the time.
Since the cover was off of the compartment, Lee believed that the mine knew they had a
problem. Later, he was told that a part was on order to repair the oil leak.
This mine operates three shifts, with the midnight shift being the maintenance shift. The
inspector believes that the mine was trying to "nurse" the feeder to get it through the production
shift until it could be repaired on the last shift when production was normally at a stand still.
This feeder was on the last belt set up. The coal was dumped into the feeder; then onto the belt
and conveyed out of the mine. In Lee's view, the mine did not want to shut down the feeder
while waiting for parts to repair the motor compartment because it would essentially shut down
production on the shift.
James Kielhom, the maintenance foreman for Willow Lake, testified that, when he
arrived at the mine for the afternoon shift, he learned that a part had been ordered to repair a
control module for a hydraulic pump. (Tr. Vol. I, 134). After examining a work order for the
pump control, Big Ridge Ex. C, he testified that the part had been ordered at about 1:24 p.m. that
day and had arrived at the mine prior to the time his shift began at 4:00 p.m. Kielhom took the
part to the feeder and repaired the oil leak problem by installing the part. In Kielhom's view, the
part of the pump control module he repaired was not the same as the valve bank area that was
cited a few days earlier by Lee. (Tr. Vol. I, 138).
Kielhom recalls that he went underground around 4:00 p.m. It took him approximately
30 minutes to travel to the area, and another 30 minutes to install the part. The feeder was not
running when he arrived but was probably operating during the shift before he arrived. (Tr. Vol.
I, 142). Inspector Lee testified that he discovered the violation at 6:20 p.m., an hour after
Kielhom believes he repaired the leak. Brandon Williams, the section mechanic, also testified
on behalf of the mine and agreed that there was an oil leak and a part had been ordered to repair
such. Williams further testified that a member of his crew remained at the feeder during the shift
to monitor the feeder so that it would not shut down if overloaded with coal. (Tr. Vol. I, 146).
He was aware of the oil leak but did not see much accumulation and, in his view, the crew

33 FMSHRC Page 691

member present at the feeder would have been monitoring the leak. Williams doesn't recall who
was standing at the feeder and he was not present when the inspector arrived. (Tr. Vol. I, 148).
Based upon the uncontroverted testimony that oil was leaking from the motor
compartment and pooling in the box and on the floor, I find that the Secretary has established a
violation.
2.

Significant and Substantial Violation

Initially, Lee designated this violation as significant and substantial ("S&S"). However,
at hearing, he indicated that, upon further review, that the 4 volts present in the motor
compartment would not likely serve as an ignition source. As a result, the likelihood of an event
that would cause an injury or illness is little to none. Based upon Lee's testimony, the Secretary
agreed that the violation is not S&S. I also agree.
3.

Unwarrantable Failure

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 ••serious lack of reasonable care." Id. at 2004-04; Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189,193-94 (Feb. 1991). Aggravating factors include 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 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. See Consolidation Coal
Co., 22 FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb.
1994); Windsor Coal Co., 21FMSHRC997, 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. Consol, 22 FMSHRC at 353 .
. The day the subject citation was issued Lee described the condition as extensive, obvious
and as existing for a period of time. When Lee arrived in the area, he immediately noticed the
leak, saw that the oil was not only pooled in the compartment but also on the mine floor. In
addition, he noted that the oil had time to soak the coal and coal fines on the floor. He observed
the cover off of the compartment, which indicated to him that the mine knew of the problem. In
his view, the mine avoided a shut down of production by waiting to repair the leak on a later
shift.
Lee was also concerned about the length of time that the accumulations existed, i.e., for
at least the entire length of the shift. According to Lee, the leak had been there long enough to
drip onto the floor and soak the coal and coal fines for some distance. In Buck Creek Coal, Inc.
v. FMSHRC, 52 F.3d 133, 136 (7th Cr. 1995), the Seventh Circuit addressed the length of time

33 FMSHRC Page 692

factor as it relates to an unwarrantable failure finding for accumulation violations. The Court
concluded that extensive accumulations that were present at least one shift, and not removed
after one pre-shift examination, provided an adequate basis to establish an unwarrantable failure
finding. Id.; see also Windsor Coal Co., 21 FMSHRC 997 (Sept. 1999).
Lee further testified that the mine was aware that greater efforts were necessary for
compliance with accumulations, as the mine had been issued numerous violations prior to this
one. Moreover, one citation had been issued by Lee just days before for oil leaking in this same
motor compartment.
The history of assessed violations for this mine indicates that the mine was cited 150
times or more in a 15 month period for accumulation violations. Sec'y Ex. 31. The
Commission, in examining an unwarrantable failure finding related to section 75.400, has
recognized the following:
[P]ast discussions with MSHA about an accumulation problem
serve to put an operator on heightened scrutiny that it must
increase its efforts to comply with the standard. Enlow Fork
Mining Co., 19 FMSHRC 5, 11-12 (Jan 1997). Likewise, a high
number of past violations of section 75.400 serve to put an
operator on notice that it has recurring safety problem in need of
correction and the violation history may be relevant in determining
the operator's degrees of negligence. Peabody. 14 FMSHRC at
1263-64.

Consolidation Coal Co., 23 FMSHRC 588, 595 (June 2001).
Based upon the credible evidence, the Respondent knowingly allowed an obvious and
extensive oil leak in the motor compartment to go uncorrected for an extended period of time,
which in turn allowed large amounts of oil to accumulate. I agree that the violation is an
unwarrantable failure. Further, the credible evidence established that the mine was aware of the
continuing problem of oil leaks and the continuing issue of accumulations at the mine. I find
that ordering a part does not take away from the unwarrantable nature of the violation. I credit
Lee's testimony that, apparently, no one was monitoring the leak as the belt continued to
operate. Based upon all of the evidence, I assess a penalty of $15,000.00 for the violation.
Docket No. LAKE 2009-491:

This docket contains 38 violations with a total proposed penalty of $195,967.00. The
parties have agreed to settle 37 of the violations, leaving one citation for decision here. The
settlement of the 37 violations is set forth in Sec'y Ex. 32, incorporated herein and addressed
more fully below.

a.

Citation No. 841403 7

33 FMSHRC Page 693

On March 12, 2009, Inspector Larry Morris issued Citation No. 8414037 to Big Ridge
f~r a violation of section 75.380(d)(7)(i) of the Secretary's regulations. The citation alleges the
following:
The alternate escape way, at cross cut #146 along the North travel
way, is not provided with a continuous durable directional life line
or equivalent device that shall be installed and maintained
throughout the entire length of each escapeway. The life line is
missing for approximately 20 feet at cross cut #146.
The inspector found that a fatal injury was reasonably likely to occur, that the violation
was significant and substantial, that forty persons would be affected, and that the violation was
the result of high negligence on the part of the operator. The Secretary has proposed a civil
penalty in the amount of $48,472.00.
The cited standard requires that "[eJach escapeway shall be ... [p]rovided with a
continuous, durable direction lifeline or equivalent device that shall be ... installed and
maintained throughout the entire length of each escapeway ...." 30 C.F.R. § 75.380(d)(7)(i).
1.

The Violation

Inspector Larry Morris has been with MSHA for four years and has 36 years of mining .
experience. After viewing the directional lifeline in the escapeway, he cited a violation of 30
C.F.R. § 75.380(d)(7)(i).
Morris was at Willow Lake conducting a spot inspection on March 12, 2009. As he was
traveling along the main north travelway, i.e., the primary means of travel into the north side of
the mine and its three units, he happened to look up at cross cut # 146 and immediately noticed
that the lifeline was missing for approximately 20 feet. (Tr. Vol. II, 110-111 ). He observed that
someone had taken the time to tie an "S hook" on both ends of the line and re-attach the ends
onto the roof bolt plates. Morris attempted to take the line from the roof bolts and connect the
two "Shook" ends, but the ends would not extend far enough to be reconnected. (Tr. Vol. II,
112).
As indicated on the map submitted as Sec'y Ex. 12, at the time the citation was issued
mining was taking place in three locations near the area of the missing lifeline. The cited entry
is the secondary escapeway and is next to a belt entry and, therefore, air flows in the same
direction in both entries, i.e., out toward the main portal. (Tr. Vol. II, 121). The purpose of the
secondary escapeway is to have a separate and different aircourse from the primary escapeway
in the event ventilation is disrupted. A secondary escapeway offers an alternative route in such a
situation and makes it more likely that miners will be able to leave the mine quickly in the event
of an emergency. The lifeline, as Morris explains, is in place to "help miners effectively
escape." Its use is absolutely necessary in the case of smoke or heavy dust, where vision is

33 FMSHRC Page 694

impaired. Id. There were at least 40 miners in the working area that would use this escape route
in the event of an emergency.
The area where the lifeline was missing is a heavily traveled area at a crosscut. Miners
travel this road throughout the shift. (Tr. Vol. II, 124). There is equipment traveling in the area
throughout the shift and a mechanic's shop is directly across from the belt drive. In addition,
there is a rock dust station and a beltmen's area with tools in the area.
If smoky conditions exist, miners are taught to find and grab a lifeline and slide their
hand along the line in order to use it to guide them out of the mine. Miners trained to use the
lifeline often hook themselves together in an effort to ensure that no one is left behind.
According to Morris, when escaping miners reach an area without the lifeline, they often stop
because they don't know where to go in order to continue the trip out of the mine. In his
experience, Morris explained, it is easy to get disoriented in an emergency. Getting lost will
result in wasting precious time that should be used to quickly and safely exit the mine. The
presence of the conveyor belt would contribute to the thickness of the smoke in the cited area.
Morris testified that, based upon his experience, the smoke would be so thick from the rollers of
the conveyor belt that you would not be able to see your hand in front of your face. (Tr.. Vol. Il,
129). He was once in a fire near a belt and he described how difficult it was to find his way out.
Miners become disoriented, and self-rescuers make it difficult to see and communicate. In an
intersection, as was the case here, there is no rib line to help find the way and there ~e other
\\tires and cables that may be confusing when looking for a missing lifeline. (Tr. Vol. Il, 131 ).

According to Morris, miners, even after training on emergency evacuation, often get
excited or panic during an emergency. Miners are in a hurry to exit the mine. Moreover, there
are tripping hazards which further add to the confusion and chaos. This mine has a history of
accumulation violations, many of them along the belt lines. (Tr. Vol. II, 132-133). Jn addition
to the accumulations and ignition sources, this is also a gassy mine. Morris has issued citations
on the belt drive near the cited area for a faulty fire suppression system and a faulty alarm. He
has also issued accumulation violations around the belt drive a number of times. This mine has
had a belt fire, as well as equipment fires and some face ignitions. (Tr. Vol. Il, 134).
Brad Champley, a member of the Willow Lake safety department, accompanied Morris
on his inspection and agreed that the lifeline was not continuous across the entry. Champley and
Morris failed in their attempt to re-connect the lifeline and, as a result, Morris stated that he
ought to have everyone evacuated. Instead, they quickly retrieved additional lifeline material
and replaced the missing piece. Champley remembers the lifeline being frayed and looking like
it was severed. He testified that the frayed ends were hanging down, possibly several feet down
from the roof (Tr. Vol. II, 157-158). The roofis 6 feet or lower and it is not uncommon for a
mantrip or other equipment to hit the roof and sever the lifeline. (Tr. Vol. II, 158-159).
According to Champley, the miners are trained to use the primary escapeway first, if
possible, and then the secondary escapeway only if necessary. The lifeline is used in the event
there is heavy smoke or something that prohibits good sight when using the escapeway. The

33 FMSHRC Page 695

lifeline would only be needed in case of a fire and, in his opinion; a fire was not likely on the day
of the inspection. (Tr. Vol. II, 161-162).
Martin, the mine examiner, testified that he conducted a preshift examination in the
morning, prior to the inspector's arrival, and did not see the missing length of lifeline that was
cited. The record of examination shows that he conducted a preshift of the lifeline in a different
area, the primary escapeway, but does not reflect an examination of the lifeline in the secondary
escapeway that was cited. However, he testified that he does in fact examine the lifelines when
he conducts an examination. In his view, it is not uncommon for the scoop or tractor to come
close to the roof and sever the lifeline. (Tr. Vol. II, 167-168).
Champley and Martin hypothesize that the line was cut by equipment traveling through
the area, and they suggest that it was done shortly before the inspector arrived. Morris on the
other hand, suggests that it occurred at an earlier time because the line was not only severed, but
also, someone had taken the time to attach Shooks and reattach the ends to the roof bolts.
Morris' testimony also indicates that whenever it was done, the person did not take the time to
repair the rope and, rather, simply hung up the line with the 20 foot gap. I credit the testimony
of Morris, who was far more specific in his recollection of the events.
Finally, Chad Barras, the Midwest Safety Director for Peabody Energy, testified
regarding the training that is conducted every 90 days at the mines. (Tr. Vol. II, 175). In his
view, the more likely escape route is the primary escapeway, or what he terms the "smoke free"
way out. (Tr. Vol. II, 176-:177). Barras explained the ventilation system of the mine in some
detail. (Tr. Vol. II, 178-179). It is his opinion there would be no fire on the belt or equipment,
and that there would be no ignition because the methane liberation is primarily from the seals.
(Tr. Vol. II, 181 ). According to Barras, there is no likelihood of a belt fire, the mine has fire
suppression systems that work, the ventilation is good, and the ignitions that have occurred in the
mine do not relate to the hazards-addressed by the inspector. (Tr. Vol. II. 177-179). Barras
provided a long dissertation regarding what would have to happen for smoke to be in the
escapeway, thereby necessitating the use of the lifeline. He concluded that it was unlikely the
lifeline in this area would be needed"
The Commission has regularly disagreed with the opinion espoused by Mr. Barras. First,
in American Coal Co., 29 FMSHRC 941 (Dec. 2007), the Commission discussed the importance
of escapeways and concluded that:
There is no disputing that escapeways are needed for miners to
quickly exit an underground mine and that impediments to a
designated escapeway may prevent miners from being able to do
so. The legislative history of the escapeway standard states that
the purpose of requiring escapeways is "to allow persons to escape
quickly to the surface in the event of an emergency." S. Rep. No.
91-411, at 83, Legis. Hist., at 209 (1975).

33 FMSHRC Page 696

29 FMSHRC at 948.
Similarly, in rejecting the argument that a fire suppression system negates the importance
of a clear escapeway, the Commission in Maple Creek Mining Inc., 27 FMSHRC 555 (Aug.
2005), and Eagle Energy Inc., 23 FMSHRC 829 (Aug. 2001), found a violation of30 C.F.R. §
75.380, where it was demonstrated that miners could not quickly and safely exit the mine in the
case of an emergency. In this case, the lack of a continuous lifeline would prevent miners from
quickly and safely exiting the mine. Given that there is no dispute that the lifeline was missing
for a length of20 feet, I nnd that the Secretary has demonstrated the violation as alleged.
2.

Significant and Substantial Violation

The primary dispute as to this citation is whether or not it is S&S. A significant and
substantial ("S&S") violation is described in section 104(d)(l) of the Act as a violation ••of such
nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard." 30 U.S.C. § 814(d)(l). 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:
[i]ri 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), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021(Dec.1987) (approving
Mathies criteria).
I have found that there is a violation of the mandatory safety standard as alleged by the
Secretary. Second, I find that a discrete safety hazard existed as a result of the violations, i.e.,
the danger of being unable to quickly and safely escape the mine in the event of an emergency
where smoke and/or fire are created by various scenarios, including fire on equipment, fire on
the belt, or an explosion. The fact that there are safety measures in place along the belt does not
take away from the fact that an incident is likely to occur in a gassy mine with many
accumulation violations and a history of ignitions. Third, the hazards described, i.e., that of not
being able to escape in smoke and fire, will result in an injury. Fourth, that injury will be
serious, even fatal.

33 FMSHRC Page 697

The difficulty with finding a violation S&S normally comes with the third element of the
Mathies formula. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the
Commission provided additional guidance:
We have explained further that the third element of the Mathies
formula "requires that the Secretary establish a reasonable
likelihqod 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)( 1), it is the
contribution of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining Co., Inc., 6
FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc.,
6 FMSHRC 1573, 1574-75 (July 1984).
This evaluation is made in consideration of the length of time that the violative condition
existed prior to the citation and the time it would have existed if normal mining operations had
continued~ Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc.,
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., LO FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
I address initially the issue of a likelihood of an explosion, fire or other emergency,
which both parties agree must occur before the use of the lifeline becomes necessary. There are
a number of mandatory standards that are designed to protect miners in the event of an
emergency. Among those are the escapeway regulations and, specifically; the requirement that
lifelines be installed and maintained. The Secretary urges that I "assume" the existence of an
emergency in order to evaluate the likelihood of a reasonably serious injury. I do not find it
necessary to make any assumptions in this case.
The Commission has long held that a S&S designation must be based on the particular
facts surrounding the violation, and reviewed in the context of continued mining. Texasgulf,
Inc., 10 FMSHRC 498. Thus, I address the likelihood of an emergency and, within the context
of that emergency, whether the lack of the lifeline in an entry for a distance of 20 feet creates a
reasonably serious hazard.
Morris addressed the likelihood of an accident or explosion when he testified that this is a
gassy mine subject to a five day spot inspection. Additionally, he has cited the mine many times
for extensive accumulations, including accumulations of coal dust and float coal dust along the
belt line and other areas. His undisputed testimony is that this mine has had a number of
ignitions. Morris took into account the number of ignition sources he has found during his
inspections as well as the number of ventilation issues, including low air quantities in some
areas. Given the continued course of mining, I am persuaded that an emergency is likely to

33 FMSHRC Page 698

occur. It has been demonstrated that if a large gap remained in the lifeline, it would hinder the
evacuation of the mine, thereby causing serious injury. See Enlow Fork Mining Co., 19
FMSHRC5, 9 (Jan.1997); Texasgulf, Inc., IO FMSHRC 498, 50l(Apr. 1988). The evacuation
would include the 40 miners who were working nearby.
In reaching these conclusions, I have not disregarded Respondent's argument that a fire
or explosion is not likely to occur, and even if it does, the nature of the ventilation plan, along
with the fact that there is a primary escapeway available for use, will negate the use of the
lifeline. I have also con5idered that the miners have been trained how to react in an emergency
situation and that there are fire suppression systems in play. However, the Secretary has
established a pattern of accumulation violations, ignition sources and ignitions, all of which
contribute to the likelihood of a fire or explosion. I have also considered the testimony of
Champley and Martin who, not surprisingly and without much basis, agreed that a fire would not
occur. Finally, I have considered the testimony of Barras and, although his factual explanation
of training and the ventilation system may be mostly accurate, I give his opinion and conclusions
little weight. Based upon my observations, I find that Barras is simply not a credible witness in
many respects.
I conclude that the preponderance of the evidence establishes that the lack of the lifeline
in the escapeway is reasonably likely to result in an injury causing event and that the injuries
sustained would be serious or fatal. I find that the Secretary has satisfied the four Mathies
criteria and established the violation as S&S.

3.

Negligence

Inspe.ctor Morris found that the violation was the result of high negligence on the part of
the mine operator. Morris testified that the violation was obvious and in a main travelway that
was used daily by 40 or more miners as well as by shift inspectors, supervisors, managers and
foreman. According to Morris, ''virtually everyone that goes into that end of the mine has to
travel past this area. It was in plain sight." (Tr. Vol. II, 135). Morris noticed the violation
immediately as they passed the entry. Also, in Morris' view, someone would have had to hook
the line onto the Shook and re-attach the line to the roof bolts, thereby negating the theory of the
mine that the rope had only recently b.een cut by passing equipment. The line was evidently
hooked up onto the roof bolts for a very specific purpose, i.e., to leave a 20 foot gap at the
intersection. (Tr. Vol. II, 135). I am mindful that Champley described the line as hanging down
on each end, with frayed edges. However, I credit the testimony of Morris, who had a much
better memory of the events and who I find to be more credible. Therefore, I agree with Morris
that the negligence is high and assess a $50,000.00 penalty.

Docket No. LAKE 2009-531
This docket contains two orders, both for alleged accumulations; one of coal and float
coal on the belt and one for oil on equipment. Both orders are discussed below.

33 FMSHRC Page 699

a.

Order No. 6683161

On April 6, 2009, Inspector Scott Lee issued Order No. 6683161 to Big Ridge for a
violation of section 75.400 of the Secretary's regulations. The order alleges the following:

Accumulations of combustible material in the form of coal float
dust on rock dusted surfaces (black in color) was present on the 4B
belt. Accumulations ranged in depth from 1/8 to Y4 inches deep
from rib to rib and in adjoining crosscuts~ This condition was
present on the back side of the belt from the head to fifteen
crosscut. The belts overall condition was being carried in remarks
instead of hazards (citation will be issued). Based on this
inspectors experience this condition had existed for at least 2 to 3
shifts. The belt was first described as light gray to black in color
on 4/01/09. One of the examiner when interviewed stated that he
thought he was doing management a favor by keeping condition in
remarks instead of hazards. Management did know of its more
serious condition since the examiner Charlie Hyers stated that he
had previously informed Mine Manager Terry Ward about the
belts condition. The belt was taken out of service.
Inspector Lee determined that an injury was unlikely to occur, but that any injur; could
reasonably be expected to result in lost workdays or restricted duty, that the violation was non
S&S, that two persons were affected, and that the negligence was high. The Secretary has
proposed a penalty of $4,000.00. After the hearing, the Secretary moved to change the violation
to S&S.
1.

The Violation.

Lee testified that he issued this citation as he was traveling the area along the 4B belt.
According to Lee, unlike most mine examiners who travel the belt on golf carts and look for
hazards from the main travelway, he travels the back side, or opposite the side, of the belt while
conducting his inspection. Shane Ralston, the miners' representative, and Brad Champion, a
member of Willow Lake's safety department, accompanied Lee. While on the back side of the
belt Lee observed accumulations of coal and float coal dust along the belt for a distance of
approximately 1200feet. (Tr. Vol. I, 53-55). The accumulations cited by Lee consisted of float
coal dust on rock dusted surfaces. The accumulations were very black in color and 118 to 1/4
inch deep. In Lee's experience, because the accumulation of coal dust was black rather than
grey or white, it was combustible and had been in place for some time. The area had been rock
dusted, but these accumulations were on top of the rock dust throughout the entire length from
the head of the belt to crosscut 15.
Lee reviewed the mine books, including the preshift examination books, back to April 2
2009, i.e., four days prior to his inspection. He noted on April 2, 2009, the examiner listed some

33 FMSHRC Page 700

black and some grey accumulations in the areas cited by Lee. The next preshift entry, and the
following ones through April 5th, also mention float dust in color from black to grey.
Additionally, Lee believed that the mine examiner was incorrectly listing accumulations under
the heading "con91.tions" in the report instead of under "hazards". Lee explained that listing the
accumulation under conditions instead of hazards gave the mine more time to deal with the
problem, as only items listed under hazards are required to be remedied immediately.
Charles Hyers, the mine examiner, testified on behalf of Big Ridge. Hyers is an hourly
employee who conducts preshift examinations and fills out reports to record the result of his
examinations. He is charged with looking for hazardous conditions, recording them and, in
some cases, immediately remedying those conditions. He explained that accumulations are a
matter of judgment and ifthe belt is running in accumulations, then it is a hazard. If the belt is
not running in the accumulations, then it is recorded as a condition in the remarks section of the
preshift exam book so that management is put on notice of the condition. (Tr. Vol. I, 154-157).
On April 6, 2009, Hyers examined the 4B belt and noticed that there was a large amount
of dust in the air. He encountered Teny Ward, the mine manager, shortly thereafter and
explained that it was dusty near the belt and suggested that the water be turned back on. He did
not observe the float dust that was later cited and did not record any hazards during that preshift
inspection. Hyers later ran into Inspector Lee on the 4C belt line. When que~tioned by Lee
about the accumulations Lee found earlier, Hyers attempted to respond to the questions but was
not able to -clearly hear or really understand what Lee was asking him. According to Hyers, Lee
stated that Hyers wasn't doing the company any favors by marking the accumulations in the
books as a condition and not a hazard. (Tr. Vol. I, 157). Hyers did not say, as Lee alleges, that
he was doing management a favor by marking it in such a manner. Lee interpreted the
conversation to mean that Ward was told about the accumulations, and that Hyers routinely lists
hazards as conditions so that management has a greater time to respond and take care of the
condition. It is clear that the conversation was misunderstood by both parties. (Tr. V cl. L 157158). Therefore, I do not consider the conversation in reaching any conclusions as to this order.
Hyers did not agree that black coal dust existed along the belt. However, there may have
been dust that was grey in color but, in his view, it was not combustible. (Tr. Vol. I, 158). On
cross examination, Hyers agreed that, ifthere were large accumulations of black coal dust along
the belt, it would be a hazard. {Tr. Vol. I, 160).
Terry Ward, the mine manager at Willow Lake, is in charge of daily production,
ventilation and general matters on his assigned shift. He has been at Willow Lake a little more
than 7 years but has a total of25 years mining experience. On April 6, 2009, he was on the day
shift, which starts at 7:00 a.m. He recalls talking to Hyers about the water sprays on the belt and
the dusty conditions. Ward was not told anything about accumulations or the need for rock dust.
{Tr. Vol. I, 165). Ward talked to Lee and learned of the accumulation along the belt. Ward
believed that the area was not a hazard. Even though there was float coal dust, in his opinion, it
was heavily rock dusted on the floor. He didn't agree that the accumulation was black in color,

33 FMSHRC Page 701

but he did agree that he was looking at and kicking the dust on the travel side, and not the side of
the belt that was cited. (Tr. Vol. I, 169).
The Commission has addressed the issue of accumulations in conveyor belts a number of
times. In Amax Coal Co., 19 FMSHRC 846(May1997), the Commission upheld the ALJ's
finding that an extensive accumulation of loose, dry coal and float coal dust along a belt line was
a violation of section 75.400. While the operator has offered a differing account of the type of
accumulation in this case, I credit the clear testimony of Lee, who observed the black coal for a
long distance on the "off side" of the belt. I find that the Secretary has demonstrated the
violation as alleged and affirm the violation.·
2.

Significant and Substantial Violation

Lee did not mark this violation as S&S because, as he testified, he "did not have an
ignition source," which, in turn, made it unlikely that an event would occur that would result in
an accident or injury. The Secretary has, since the time of the hearing, suggested that the
violation should be found to be S&S.
I note that the S&S nature and the gravity of a violation are not the same. The focus of
the seriousness of a violation is not necessarily on the reasonable likelihood of an event
occurring that will result in an injury, but rather on the effect of a hazard if it occurs. See
Quin/and Coals Inc., 9 FMSHRC 1614 {Sept. 1987). Hence~ a violation maybe serious yet not
be found to be S&S. Such is the case here. I find the accumulation of float coal dust to be a
very serious violation and, therefore, a high penalty is appropriate. Lee credibly testified that the
dust was dark in color, had little rock dust, and was extensive. In the event of an explosion, the
coal dust would quickly propagate the fire and further the effects of the explosion.
The accumulations were found along the belt line in an active working area. As Lee
explained, if an ignition were to occur, the float coal dust would be suspended and it would take
little of the dust to ignite and perpetuate the explosion. It is often the case that rollers go bad,
belts begin to rub, and sparks are created. Moreover, other heat sources may exist along the belt
line that, ih time, would ignite the coal. If this condition had been allowed to persist, as it
obviously had here, it could have reasonably led to a fire or explosion. See Black Diamond Coal
Mining Co., 7 FMSHRC 1117, 1121 (Aug. 1985). While I note the high gravity of the violation,
I find that it would prejudice the Respondent if the Secretary were to be allowed to amend this
violation to S&S after the hearing and, as a result, I deny the Secretary's request.
3.

Unwarrantable Failure

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 "serious lack of reasonable care." Id. at 2004-04; Rochester & Pittsburgh·
Coal Co., 13 FMSHRC 189,193-94 (Feb. 1991). Aggravating factors include the length of time
that the violation has existed, the extent of the violative condition, whether the operator has been

33 FMSHRC Page 702

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. See Consolidation Coal
Co., 22 FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb.
1994); Windsor Coal Co., 21FMSHRC997, 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. Consol, 22 FMSHRC at 353.
Lee, in determining that the accumulation violation existed for a number of days, relies,
in part, on the preshift reports. The reports show that examiners, including Hyers, found
accumulations on the 4B belt from April 2 until the time of Lee issued his order on April 6.
Sec'y Ex. 6. The examiners report refers to accumulations that are grey and black in a number
of book entries. This belt normally operates 16 hours per day. The designation of"black"
indicates to Lee that there was little, if any, rock dust in the float coal dust, making it highly
· combustible. (Tr. Vol. I, 62-63). In Buck Creek Coal, Inc. v. FMSHRC, 52 F .3d 133, 136 (7th
Cr. 1995), the Seventh Circuit addressed the length of time factor as it relates to an
unwarrantable failure finding for accumulation violation. The Court concluded that extensive
accumulations that were present at least one shift, and not removed after one pre-shift
examination, provided an adequate basis to establish an unwarrantable failure finding. Id.; see
also Windsor Coal Co., 21FMSHRC997 {Sept. 1999).
Lee further described the accumulations as extensive and obvious. He immediately
noticed the accumulations when he entered the area. He credibly testified that they were
extensive and that they had existed for 1200 feet. Since management reviews and signs the
preshift examinations, management was made aware of the condition. In addition, the mine had
been put on notice about an accumulation problem. Lee told the company in meetings, and. jn
the prior quarter, about his concern for the number of accumulation violations issued. He
addressed accumulations in general but, he argues, the company should have been more diligent
based upon the conversations. This mine had over a 200% increase in accumulation violations
in the one quarter. (Tr. Vol. I, 73-75).
The history of assessed violations for this mine demonstrates over 150 accumulation
violations in the 15 months prior to this violation. Sec'y Ex. 31; (Tr. Vol. I, 81). The
Commission, in examining an unwarrantable failure finding related to section 75.400, has
recognized the following:
[P]ast discussions with MSHA about an accumulation problem
serve to put an operator on heightened scrutiny that it must
increase its efforts to comply with the standard. Enlow Fork
Mining Co., 19 FMSHRC 5, 11-12 (Jan 1997). Likewise, a high
number of past violations of section 75.400 serve to put an
operator on notice that it has recurring safety problem in need of
correction and the violation history may be relevant in determining

33 FMSHRC Page 703

the operator's degrees of negligence. Peabody, 14 FMSHRC at
1263-64.

Consolidation Coal Co., 23 FMRSHR 588, 595 (June 2001).
I conclude that the Secretary has established that the violation is unwarrantable as
alleged. Based upon the negligence and the gravity of the violation, along with the other factors
addressed in the penalty section of this decision, I assess a penalty of $10,000.00 for this
violation.

b.

Order No. 6683186

On April 21; 2009, Inspector Scott Lee issued Order No. 6683186 to Big Ridge for a
violation of section 75 .400 of the Secretary's regulations. The order alleges the following:

Accumulations of a combustible material in the form oil, due to oil
leaks was allowed to accumulate. These accumulations ranged in
depth froml/4 to 314 inches deep on the floors of the pump motor
and motor compartments. Management is aware that they have an
ongoing problem with oil leaks. They have addressed the problem
of removing the cited accumulations by washing, but have failed
put a progran1 in place to illuminate the root cause, oil leaks.
Based upon the following history at this mine or its repeated
violation of the 75.400 standard this order is being issued: 354
citations issued under this standard in the past 14 months. 88 or
25% or the citations issued have been S&S, also numerous
meetings have been held with management regarding the repeated
violation of the 75.400 standard. This condition was observed on
the 870 ram car located in unit 1 (011/001) ..
Inspector Lee determined that an injury was unlikely to occur, but that if an injury did ·
occur it could reasonably be expected to result in lost workdays or restricted duty, that the
violation was non S&S, that two persons were affected, and that the negligence was high. The
Secretary has proposed a penalty of $4,000.00.
I.

The Violation

Lee testified that he found the accumulation of oil on the ram car as he was inspecting
equipment at the mine. At the time of the inspection, this mine had been experiencing a high
number of accumulations of oil on equipment, such as the ram car cited here. Lee agreed that
the mine had been washing the machines, but the mine was not repairing the leaks. Lee
determined that washing the equipment was not enough to deal with the continued issue of
accunmlations. Lee had numerous meetings with persons at the mine about the condition of the
equipment, specifically the oil leaks and the resulting accumulations.

33 FMSHRC Page 704

Robert Hill, the Willow Lake mine manager, bas 43 years ofmining experience and he
primarily delegates the work each shift. He accompanied Lee underground and remembers that
Lee told him that he was going to inspect the equipment and that any accumulation violation
would be issued as an order, due to the mine's history. (Tr. Vol. I, 172). He explained that a
ram car carries coal from the miner to the feeder and operates 16 hours a day. The 870 ram car
cited by Lee was part of an equipment inspection conducted by Lee. During the course of the
inspection, the pump motor cover was removed and Lee could see accumulations of oil and floor
clay. Hill didn't measure the depth of the accumulation but he testified that the there was maybe
1/8 inch of oil, that it was not as much oil as Lee suggested, that it was not obvious, and that it
was not a hazard. (Tr. Vol. I, 173). It was Hill's understanding that the ram car had been
washed that morning on the day shift and had been subject to a weekly examination on April
16th, i.e., just five days prior to the order. The weekly examination found that it was dirty and
had oil leaks. Big Ridge Ex. T; (Tr. Vol. I, 176). The equipment was washed and the fittings
tightened. Hill agrees that they are constantly fixing oil leaks on the equipment but, in his view,
it is the nature of mining. (Tr. Vol. I, 179).
Given the undisputed testimony of Lee, and the explanation provided by Hill that there
was, without question, an oil accumulation on the ram car, I find that a violation is established.
2.

Unwarrantable Failure

The citation was issued as an unwarrantable failure based upon the number of alleged
accumulation violations found and the fact that MSHA had put the mine on notice about the
accumulations of oil that persisted on its equipment. ·Lee addressed a number of aggravating
factors in his testimony, i.e., length of time that the violation existed, the extent of the violative
condition, that the operator has been placed on notice, that greater efforts were necessary for .
compliance, and the operator's knowledge of the ~xistence 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., 21FMSHRC997, 1000 (Sept. 1999); Consolidation Coal Co.,
23 FMSHRC 588, 593 (June 2001).
Lee discussed that he found high negligence due to the ongoing problem with the
accumulations, specifically accumulations of oil on equipment at this mine. He noted many
previous violations in the body of the citation. He also testified that .there were ongoing
discussions about the problem with mine management and how he had attempted to get the
problem under control through meetings with the company. Still, the mine had failed to put a
program in place to eliminate the cause. At a closeout meeting at the end of March, Lee
prepared a list of citations which included the number of accumulation violations at the mine.
According to Lee, what really stood out was the increase in accumulation violations of 230%
from the first quarter to the second quarter. Most of the violations were related to mobile
equipment and leaks. One month prior to the subject order, Lee told mine management that they
needed to do better with the equipment, conduct better pre-operational checks, detect leaks, and
immediately repair them. This order was issued three weeks after that closeout and Lee was still

33 FMSHRC Page 705

finding these problems. In addition, Lee speaks to management every time he is at the mine and
management assures him that they are taking care of the problem. In Lee's view, they have not
taken care of the root cause, i.e., the oil leaks.
Hill disagrees with Lee and testified that the mine has been washing the equipment to
eliminate the accumulations and that the weekly checks were being done. When a leak is found
during those weekly examinations, it is repaired. He indicated that the mine is constantly
repairing oil leaks and consequently the mine is doing what it should. This piece of equipment
had been repaired after its last weekly check and had been washed the day before the inspection.
However, I agree with Lee that the mine was not doing enough to eliminate the problem and that
the unwarrantable designation is appropriate in this case. I affirm the proposed penalty of
$4,000.00.

Docket No. LAKE 2009-532
This docket contains 37 violations with a total proposed penalty of$262,438.00. The
parties have agreed to settle 32 of the violations as set forth in Sec'y Ex. 32, which is accepted
and incorporated herein. The remaining five violations are addressed below.

a.

Citation No. 6682879

On April 1, 2009, Inspector Marty Gayer issued Citation No. 6682879 to Big Ridge for a
violation of75.202(a) which requires that "[t]he roof, face and ribs of areas where persons work
or travel shall be supported or otherwise controlled to protect persons from hazards related to
falls of the roof. face or ribs and coal or rock bursts." The citation states that ''[t]here is an area
of unsupported mine roof at crosscut #49, in #4 entry, located on the #2C Travel Road. The area
measured 6'3" X 7'3" feet from the last permanent support." fuspector Gayer determined that a_
fatal injury was reasonably likely to occur, that the violation was S&S, that one person was
affected, and- that the negligence was moderate. The Secretary has proposed a penalty of
$5,961.00.

1.

The Violation

Gayer has been a mine inspector since 2007 and had 24 years mining experience prior to
becoming an inspector. (Tr. Vol. II, 34). On the day he discovered the violation, Gayer was
conducting a spot inspection and was traveling on the unit 2 travel road to the unit section
working area. The travel road is the main route of travel into the mine and to the working
section. Gayer observed a 6' 3" by 7' 3" area from the last permanent support that was not
adequately supported, This is a dry rock or stack rock area and, given the mine's history of roof
falls, the mine is required to provide extra support in an area such as this. (Tr. Vol. II, 37). This
unit has a history of numerous roof falls, particularly roof falls in the stack rock areas. As a
result of the problems, the roof control plan requires the mine to install roof bolts longer than
usual or, alternatively, timbers as added support in stack rock areas. Gayer explained that the
mandatory standard requires all areas where miners work or travel to be adequately supported.

33 FMSHRC Page 706

The miners travel in this area when entering and leaving the mine. Although the roof was
bolted, the material surrounding the roof bolts had fallen and the plate was no longer against the
roof. In Gayer's opinion, other material was poised to fall. (Tr. Vol.II, 39). He measured from
the last support to the next good support, in both directions, and discovered an area
approximately six feet by seven feet that was not adequately supported.. Gayer credibly testified
regarding the location of the bad roof and explained that it was in an area where miners drive
and walk daily. There was evidence that a 5 feet by 5 feet portion of the roof had already fallen
directly under the bad bolt/plate.
Gayer believes that this violation is S&S and that the mine examiner who regularly
travels this roadway should have noted and corrected the bad roof (Tr. Vol. II, 41 ). Gayer
learned that the area had been rock dusted a week prior to his citation so there was rock dust
covering the top of the plate and, in his opinion, this was evidence that the condition had been in
place for at least a week. The violation was obvious and, therefore, the negligence could have
been high rather than the moderate negligence he attributed to the violation. (Tr. Vol. IL 43).
Champley, the operator's representative from the safety department who accompanied
the inspector, testified that the inspector was looking at the top and stopped several times to
examine the roof. Champley was a roof bolter for 4 years and understands that the mine uses
fully grouted bolts designed to glue the layer of rock, creating a beam across the entry. (Tr. Vol.
II, 96). He responded '"no" when asked if a primary roof fall is more likely when one bolt is
missing. (Tr. Vol. Il, 97). Champley didn't recall seeing any draw rock but did obs~e that the
rock area was white and the plate had moved. He did not see any slips~ cracks, or over-wide
cuts. (Tr. Vol. JI, 99). He testified that he recalled the bad roof being closer to the rib line, but
there is some confusion as to which citation Cbampley was addressing in his testimony. Given
the confusion, I give little weight to much of his testimony. (Tr. Vol. IL 99-101).
The Secretary;s roof-control standard in 30 C.F.R. § 75.202(a) is broadly worded.
Consequently, the Commission has held that ''the adequacy of particular roof support or ·other
control must be measured against the test of whether the support or control is what a reasonably
prudent person,. familiar with the mining industry and protective purpose of the standard, would
have provided in order to meet the protection intended by the standard." Canon Coal Co,, 9
FMSHRC 667, 668 (Apr. 1987) (cited with approval in Harlan Cumberland Coal Co., 20
FMSHRC 1275, 1277 (Dec. 1998). Gayer's testimony reveals that a reasonably prudent person
would have required more support in this area given that the roof had already fallen where the
bolts were loose and the plate moved. I credit the testimony of Gayer regarding the condition of
the roof and the location that was affected by the bad roof. I affirm the violation.
2.

Significant and Substantial Violation

A significant and substantial ("S&S") violation is described in section 104(d)(l) of the
Act as a violation "of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation is
properly designated S&S "'if, based upon the particular facts surrounding that violation, there

33 FMSHRC Page 707

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 FMSHRC822, 825 (Apr. 1981).
The Commission set forth the test for S&S in 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), ajfg Austin Power, Inc., 9
FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).
I have found that there is a violation of the mandatory safety standard as alleged by the
Secretary. Second, I fuid that a discrete safety hazard existed as a result of the violation; the
danger of roof falling in an area that is routinely traveled by miners working in the mine. Third,
the fall of roof will easily result in an injury and that injury will be serious or even fatal. Gayer
credibly explained that the hazard created is the fall of a part of the roof and, in fact, part had
already fallen, leaving loose pieces of rock hanging from the roof. The area that had already
fallen which was 5 feet by 5 feet, was enough to cause fatal crushing injuries according to Gayer.
(Tr. Vol. II, 44). This area is traveled regularly on each shift both in vehicles and on foot. It is
also an alternate escapeway.
What the Commission said twenty years ago, that "[r ]oof falls have been recognized by
Congress, the Secretary of Labor, the industry, and this Commission, as one of the most serious
hazards in mining" and "remain the leading cause of death in underground mines," is just as true
today. Consolidation Coal Co., 6 FMSHRC 34, 37 n.4 (Jan. 1984). Since any fall of roof would
result in a serious injury or death, I find that there was· a reasonable likelihood that the injury
would be of a reasonably serious nature. I agree with Gayer that this violation is S&S and I
assess a penalty of $6,000.00.

b.

Citation No. 6682881

On April 1, 2009, Gayer issued a second citation, Citation No. 6682881, for a roof
control violation on the same travel road but inby the earlier violation and on the working
section. He again cited a violation of 75.202(a) and stated in the body of the citation that
"[t]here is an area of unsupported mine roof in #4 entry, at 53+85 survey station, located on the
#2C Travel Road. The area measured 6.5 x 7 .5 feet from the last permanent support. The
unsupported area is in front of the Transformer #66 and dinner hole area, which is well traveled
and open and obvious." Inspector Gayer determined that a fatal injury was reasonably likely to
occur, that the violation was S&S, that nine persons were affected, and that the negligence was
high. The Secretary has proposed a penalty of $56, 763.00.
1.

The Violation

After issuing two citations for bad roof, including the citation discussed above, Gayer
traveled toward the working section. While traveling towards the working section he observed
another area ofloose rooflocated near the transformer and the "dinner hole". Gayer explained
that there was an inadequately supported area that he measured to be 6.5 feet by 7.5 feet, with
two bolts damaged to such a degree that their integrity was compromised. The bolts were bent

33 FMSHRC Page 708

and would no longer hold the roof in place and the plates were also damaged. In addition, the
roof had several slips near the transformer and dinner hole area. (Tr. Vol. IL 47-48). Gayer
testified that the roof he observed was a violation "because the integrity of the roof bolts [was]
compromised, and they weren't adequately supporting the roof." (Tr. Vol. IT, 51). He observed
several slips and cracks in the roof Given the location of the condition, the entire crew from the
working section may be walking under or very near the bad roof This is, like the area discussed
in the previous citation, a stack rock zone. (Tr. Vol. II, 51 ).
Gayer described the area affected by the bad roof and drew an illustration of the area.
Sec'y Ex. 34. The illustration shows the dinner hole area and the area between the dinner hole
and the transformer; the intersection where the bad roof was located. Gayer described tools in
the area that would need to be retrieved throughout the shift, as well as a first aid kit and mine
maps. The area is accessed by repairmen, equipment operators, and foremen, as well as the
mining crew.
Champley testified generally about the roof control violations and remembered that this
violation was not in the location identified by Gayer. Instead he believes that it was closer to the
rib. (Tr. Vol. L 99-100). He did agree that it was near the "dinner hole" but he doesn't
remember a picnic table. (Tr. Vol. II, 101). In his opinion, the bad roof was not in a location
where miners would sit or drive under it. (Tr. Vol. II, 102).
I find that the conditions observed by Gayer constitute a violation of the cited standard,
and that a violation has been shown by the Secretary. I credit primarily the testimony of Gayer
and his description of the roof condition and the area where the bad roof was located.
2.

Significant and Substantial Violation

Gayer designated this violation S&S due to the slips in the roof, the cracks in the root:
the bad bolts,.and the bad plates he observed. He further explained that all of those working on
the section would travel or linger under this area during the shift. According to Gayer, it is
reasonably likely that the roof will fall, thereby. injuring anyone in the area. The injury would be
a crushing injury that could be fatal. Based upon the Mathies criteria, discussed supra, I find
that the violation is significant and substantial. I have found that there is a violation of the
mandatory safety standard as alleged by the Secretary. Second, I find that a discrete safety
hazard existed as a result of the violations, i.e., the danger of roof falling in an area that is
routinely traveled by all working in the mine. Third, the fall of roof will easily result in an injury
and that injury will be serious or even fatal.
Gayer credibly explained that the hazard created is the fall of a part of the roof in an area
that is often traveled and accessed throughout the shift. Gayer observed the bad roof in the
travel area and in a stack rock zone which calls for additional support. He explained that the
hazard created by the condition of the roof is a fall of roof which could cause injuries ranging
from broken bones to the fatal crushing of miners. Gayer considered the size of the area, the
history of stack rock and instability at this mine, and the fact that the cracks and slips appeared to

33 FMSHRC Page 709

be subject to faililre. He credibly testified that, due to the size of the unsupported area, the
history of the mine, the stack rock in the area, and the slips and cracks he observed, the roof was
likely to fail. {Tr. Vol. II, 54). He further testified that the dinner hole area has a picnic table,
tool box with tools, first aid box, mine map, and escapeway maps. Many miners keep dinner
buckets at the dinner hole and may return to the area several times a day to retrieve things from
their bucket or eat nearby. On the other side of the travelway is a transformer which supplies
power to equipment on the unit. Equipment operators, foreman, and repairmen access the
transformer to energize or de-energize all equipment from that point. There is exposure to the
bad roof throughout the course of the shift, both on foot and in equipment. {Tr. Vol. II, 53, 56).
Champley observed slips of the roof over the transformer area, and noted that rock had
fallen out when cut, but the area had been subsequently supported. He did not believe that the
slip he observed compromised the roof. According to Champley, there Was just one pin
identified as being missing, but he spotted a couple bolts near it to support the roof. The citation
was terminated by replacing the bolt with one of similar length. Champley explained that the
area he described as the cited area was too close to the power center for any vehicle to pass
under the unsupported roof. He testified that there are power cables on each side, but the bad pin
could have exposed only one person.
I find Gayer to be an extremely credible witness based on both his detailed memor1 and
notes about the violation. I find Gayer' s recollection of the cited area and the condition of the
roof far more credible than Champley' s recollection. Champley was focused only on the area
directly under the "bad pin" and not the extended area that Gayer believed was affected by the
bad roof boJts and plates. I reject any suggestion that Gayer cited only a small area where a "bad
pin" was located and that the pin had no effect on the remainder of the roof for some distance.
As stated above, the Commission has acknowledged that "[r]oof falls have been
recognized by Congress, the Secretary of Labor, th.e industry, and this Commission, as one of the
most serious. hazards in mining" and "remain the leading cause of death in underground mines."
Consolidation Coal Co., 6 FMSHRC 34, 37 n.4 (Jan. 1984). I conclude that the Secretary has
proven that this violation is S&S.
3.

Negligence

Gayer designated this violation as high negligence because, in his opinion, the condition
was open and obvious. This area, like the other areas he cited that day, had been rock dusted on
March 24, a week before the citation. The location of the rock dust led Gayer to believe that the
bad roof had existed at the time it was dusted. Management is constantly in the area and
examiners are in the area to look for hazards. {Tr. Vol. Il, 55). The roof condition was easily
detected and Gayer was able to see it immediately upon entering the area. I conclude that the
negligence is high and, therefore, based upon the negligence and gravity of this violation, along
with the other penalty criteria discussed below, I assess a penalty of $60,000.00 for the violation.

c.

Citation No. 6682883

33 FMSHRC Page 710

On April 1, 2009, Inspector Gayer issued Citation No. 6682883 to Big Ridge for a
violation of section 75.360(b)(l) of the Secretary's regulations. The citation alleges the
following:

An inadequate preshi:ft examination was performed on the in that
the hazardous conditions listed in Mine Citation numbers 6682879,
6682880, 6682881 and 6682882 was neither posted not recorded in
a book maintained for that purpose. All affected areas have rock
dust present on the unsupported roof and on top of the roof bolt
plates and the area was last dusted on 3/24/2009. Termination of
this citation shall require that those miners required to perform
preshi:ft examinations be re-instructed in the requirements of the
cited standard.
According to Gayer, all of the citations he issued that day were on the examiners route
and all were open and obvious. (Tr. Vol. II, 57). He reviewed the examiner's books and found
no notes to indicate that the examiner had observed the violations. He cited a violation of
section 75.360(b)(l) which requires that "[t]he person conducting the preshift examination shall
examine for hazardous conditions, test for methane and oxygen deficiency, and determine if the
air is moving in its proper direction at the following locations: ... [r]oadways, travelways and
track haulageways where persons are scheduled, prior to the beginning of the preshi:ft
examination, to work or travel during the oncoming shift." The inspector found that a fatal
injury was reasonably likely to occur, ·that the violation was significant and substantial, that nine
persons would be affected, and that the .violation was the result of high negligence on the part of
the operator. The Secretary has proposed a civil penalty in the amount of $42,944.00 this
violation.

1.

· The Violation

Gayer's citation is based upon four other citations he issued on April l, 2009, including
the two roof violations discussed above. He also issued Citation No. 6682880 for unsupported
roof in the travelway, and Citation No. 6682882, also for unsupported roof. He considered the
four violations that were not recorded in the book maintained for the preshift results as a basis
for the citation. All of the cited areas were areas of stack rock and had been rock dusted on
March 24, 7 days prior to the citations. The roof violations were issued by Gayer at 8:00 a.m.,
8:20 a.m., 9:55 a.m. and 8:40 a.m. The preshi:ft would have been conducted between 3:30 a.m.
to 6:30 am. (Tr. Vol. Il, 70). Jn each case the roof problem was obvious. The roof had
deteriorated, some had fallen to the ground, and roof and bolts were hanging and plates were no
longer against the roof. Gayer expected that the preshi:ft examiner would have observed the
areas of bad roof as they were on his route of travel. He should not only have detected the bad
roof, but should have recorded and subsequently repaired the area. Upon reviewing the books
before entering the mine, Gayer found that the examiner had found no hazards in these highly

33 FMSHRC Page 711

traveled areas. Gayer made no special efforts to see the violations, hence the examiner would
have seen them just as easily. (Tr. Vol. II, 62-65).
Martin, a mine examiner for Willow Lake, has worked at the mine for two years and has
ten years of mining experience. He testified that he conducted the preshift examination and
recorded it on the examiner's report for unit 2 and unit 3 for April 1, 2009. Big Ridge Ex. L. As
Martin traveled the roadway, he recalled that it was dusted, with the dust being white in color.
When conducting a preshift, he scans the roof and takes note of the condition of the roadway.
(Tr. Vol. II, 85-86). hi the event there are cracks or unsupported roof he identifies it as a hazard
on the report and places a tag on loose pins. (Tr. Vol. II, 87). He believes that he can view
hazards ifthe area has been rock dusted or ifroofhas fallen. The entries are normally 18feet,
and there are 5 rows of bolts across the top, making it necessary to see a large number of roof
bolts. If material had fallen out prior to the travel road being dusted, then it would be black
where roof had fallen, or black on the floor, and he would have discovered the probl~. If the
plate is not secured or is hanging down, that is an indication that the roof is bad. He does note
bad bolts from time to time and they are repaired. Martin did not testify specifically regarding
his examination on the day of the citation and, instead, testified in general terms about preshift
examinations.
Based upon Gayer' s observations during his inspection, it may reasonably be inferred
that bad roof existed in several locations at the time of the preshift examination. While Martin
asserts that he would not have missed the roof violations, particularly if part of the roof had
already fallen, I find it probable that he did. 1n Gayer's experience, because the roof was rock
dusted over the roofbolt and the hanging roof, he was able to determine that it had been in place
for at least a week and had not been noted by any examiner. Gayer further opined that the bad
roof was located in four distinct areas along a regularly used travelway and, therefore, should
have been obvious to anyone traveling the road, particularly a mine examiner traiued to look for
bad roo£ Martin's testimony does nothing to refute the observations and opinions of Gayer.
Since the preshift examination took place only hours before the violations were issued, and there
were at least four roof violations noted by Gayer, I find that a violation has been proven as
charged. The fact that Gayer found four violations of bad roof, with bent or hanging bolts, roof
falls on the ground, and rock dust to indicate that the roof had been in the condition for a week,
persuades me that the examiner was not doing an adequate job.
2.

Significant and Substantial Violation

Gayer designated this a S&S violation because failure to note the hazards of the roof will
result in miners will being exposed to such hazards. Miners rely upon the preshift examiner to
find and correct conditions that can be a hazard. When an examiner fails to do so, it creates in
miners a false sense of Working in a safe environment. Gayer explained that, during the shift, all
of those miners working on the section would travel or linger under the various areas of bad
roof According to Gayer, it is reasonably likely that the roof will fall, thereby causing a serious,
or even fatal, crushing injury. Based upon the Mathies criteria, discussed supra, I find that the
violation is significant and substantial.

33 FMSHRC Page 712

I have found that there is a violation of the mandatory safety standard as alleged by the
Secretary. Second, I find that a discrete safety hazard existed as a result of the violations, the
danger of miners unknowingly being exposed to unsupported roof that is likely to fall. Third,
the fall of roof will result in an injury and that injury will be serious or even fatal. Gayer
credibly explained that the hazard created is the exposure of miners to at least four areas of bad
roof, all well traveled and accessed throughout the shift, that were left unreported by the mine
exammer.
Gayer expressed his concern that failure to record hazards, and in particular the failure to
record the four areas of bad roof, means the conditions are not brought to the attention of miners
and not corrected prior to the miners beginning their work for the day. The fact that the
conditions were not found and not corrected leads to the obvious hazard of roof falls. There
were slips and cracks in the roof, hanging bolts and roof material, and roof had fallen to the
ground, all leading to the likelihood that the roof would fall and cause a fatal crushing injury.
The miners rely on the preshift examiner to look for hazardous conditions prior to their entry
into the mine. Relying upon an inadequate examination may engender a false sense of security
and cause the miners to pay less attention to their surroundings as they travel the roadway. The
roadway is traveled each shift, both directions, both on foot and in uncovered vehicles. Th~
entire working crew of at least nine miners was affected by the lack of adequate examination.

In support of the S&S finding made by Gayer, the Secretary submitted a data retrieval
report, Sec'y Ex. 22, to demonstrate the number of mine accidents from January 5, 2006 until
March 2009. The accidents are reported to MSHA by Willow Lake. During the three year
period of the report, there were eighty-nine reported accidents due to the fall of roof or rock.
Those falls resulted in fifteen miners sustaining injuries but there were no fatalities. As Gayer
opined~ it only takes one fall to cause a fatality. (Tr. Vol. Il, 67-69).
Martin disagreed that the alleged lack of an adequate examination would lead to any
injury. He said that most, but not all, vehicles traveling the road have canopies. However, the
roof of the vehicle he drives does not protect against a roof fall and it would only keep the rain
out. (Tr. Vol. II, 89).
In reaching my conclusion, I have not disregarded the arguments of Willow Lake that the
lack of an adequate preshift does not create a hazard. 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." 19 FMSHRC at 15. 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 of the safety
standard herein, would have recognized that this hazard needed to be recorded in the preshift
examination book. Utah Power & Light Co., 12 FMSHRC 965, 968 (May 1990) affd 951 F.2d
292 (10th Cir. 1991). Accordingly, I find Respondent's argument to be without merit.

33 FMSHRCPage 713

The mine argues that, like the roof control violations themselves, there is no danger of a
primary roof fall in the areas cited by Gayer. However, I find that there was a likelihood of a
roof fall and that the miners were exposed to a serious hazard due to Respondent's failure to
record the roof conditions and either correct them or warn miners of the hazards. The miners on
the oncoming day shift were not alerted to the presence of the dangerous roof. If mining
operations were allowed to continue, the bad roof would have remained in place unreported.
The violation was therefore significant and substantial.
3.

Negligence

The Secretary argues that the Respondent's failure to record the hazards was the result of
high negligence. The roof control violations were certainly obvious because of the number and
location. In addition, the violations should have been obvious to the mine examiner and
management because they occurred in areas of primary travel that had to be examined on a daily
basis. See Quin/and Coals Inc., 10 FMSHRC 705, 708-09 (June 1988) (obvious nature of lack
of proper roof support); Youghiogheny & Ohio Coal Co., 9 FMSHRC 1007, 2010-11 (Dec.
1987) (finding of unwarrantable failure where preshift examinations had been conducted but the
roof control violations were not reported); Eastern Associated Coal Corp., 13 FMSHRC 178,
187 (Feb. 1991) (violations not reported followingpreshift examinations).
The high negligence finding is also supported by the duration of the violation, which was
determined by the inspector to have existed for weeks. See Quin/and, 10 FMSHRC at 709 (poor
roof conditions associatecl with section 75.200 violation had existed "for a considerable length of
time"). The lack of a thorough inspection presented a high degree of danger to miners because
of the threat of roof falls. Most significantly, the mine examiner is trained to find the very
conditions that Gayer found. The examiner must find the conditions in order to protect the
miners from hazards as they go about the work day. The only explanation offered by the mine is
that the areas were rock dusted and difficult to see. Consequently, I conclude that the violations
were the result of high negligence and assess a penalty of$50,000.00.

d.

Citation No. 6680529

On April 16, 2209, Inspector Keith Roberts issued Citation No. 6680529 for a violation
of section 75.220(a)(l) of the Secretary's regulations. The citation alleges that "[t]he cross
sectional area of the 4-way intersection of Entry 6, 22+25' station, Unit 1 is 71 feet. The
maximum area approved in the roof control plan is 68 feet." The cited standard requires that
"[e]ach 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 in the mine. Additional measures shall be taken to protect persons if unusual hazards are
encountered." 30 C.F.R. § 75.220(a)(l). Inspector Roberts determined that a fatal injury was
reasonably likely, that the violation was S&S, that one person was affected, and that the
negligence was moderate. A penalty of $5,080.00 has been proposed.

33 FMSHRC Page 714

1.

The Violation

Keith Roberts has been an inspector with MSHA for 11 years and is presently a roof
control specialist. He has worked in coal mining since 1972 and has held different positions
ranging from general laborer to mine foreman. He has worked on proposed rulemaking for
MSHA and, in 1998, chaired the coal safety division for the mining association. (Tr. Vol. I, 186191). On April 16, 2009, Roberts was at the Willow Lake Portal to conduct a five-day spot
inspection. He was accompanied on the inspection by Terry Ward, for the company, and Greg
Fort, the miners' representative. (Tr. Vol. I, 196-197). Roberts observed the violation of the
roof control plan as he walked by the entry 6 area while traveling to the working section.
Roberts observed that three of the comers were cut off in the entry and appeared to be wider than
normal. He measured the area and recorded the measurements in his notes. Sec'y Ex. 30 p. 4.
Three of the comers had been cut; one by the continuous mining machine while turning, and the
other two were sheared down by the miner as it backed up. (Tr. Vol. I, 199-200).
The roof control plan provides that the maximum cross sectional width at an intersection
shall not exceed a total of 68 feet, and that the maximum average diagonal distance at a four way
intersection is 34 feet. Sec'y Ex. 25; (Tr. Vol. I, 194). The maximum cross sectional width is
required by the plan because, in Roberts view, any time the pillar is reduced, it weakens the
natural support structure and can be a significant contributor to roof failures. Diagonals must
add up to 68 feet, and if the total width exceeds 68 feet then it is a violation of the roof control
plan. If the width is exceeded, the plan calls for additional support. If the width is offby less
than 2 feet, the plan allows for additional roof bolts to be installed. However, ifthe width is off
by greater than !\Vo feet, then standing support, such as posts, jacks or cribs are required. {Tr.
Vol. I, 202-203); Sec'y Ex. 25, p. 8, items 18-19. In this case, the width exceeded the total of 68
feet by nearly 4 feet, and the inspectonvas unable to identify any additional support, such as
standing support in the intersection as required by the plan.
Terry Ward, the mine manager, accompanied Roberts when he issued the roof control
violation. He agreed that the intersection looked wider than normal but felt that the ribs and roof
were in good shape. (Tr. Vol. II, 6-7). fu Ward's opinion, the cut comers were adequately
supported by the roof bolts. Four and six foot bolts would have been used in that area. Ward
agrees that the roof control plan requires 68 feet diagonal, but asserts that the slightly greater
than three feet difference would not make it likely that a roof fall would occur. (Tr. Vol. II, 9).
He does agree that most roof falls at this mine occur in the intersections.
The requirement for each underground coal mine to develop a roof control plan is a
fundamental directive of the Mine Act and its predecessor, the Federal Coal Mine Health and
Safety Act of 1969. See 30 U.S.C. § 862(a) (setting forth general requirements for plans "to
protect persons from falls of the roof or ribs."). The intent of the provision was "to afford
comprehensive protection against roof collapse - the 'leading cause of injuries and death in
underground coal mines.'" UMWA v. Dole, 870 F.2d 662, 669 (D.C. Cir. 1989) (citation to
legislative history omitted). The Commission has relied upon the high degree of danger posed

33 FMSHRC Page 715

by roof control plan violations as a basis for finding unwarrantable failure. See Cyprus Plateau
Mining Corp., 16 FMSHRC 1610, 1616 (Aug. 1994).
Chad Barras, the regional safety director denies that any violation of the plan existed.
However, I credit the testimony of Roberts and affirm the violation.
2.

Significant and Substantial Violation

In designating this violation as S&S, Roberts took into account a number of things. First,
this mine has a significant roof fall history. Second, the type of roof strata at this mine, a
mixture of weak shales that weather easily, is not always adequately controlled. The excessive
widths, along with the type of roof, contribute to the hazard of a roof fall. This is a four-way
intersection on a travel road where miners are exposed each shift. The road is used by the crew
going in and out from the working face. Mechanics, examiners, and supervisors also use this
road. The area is traveled by vehicles that have no canopy and is also used as an area to park
vehicles. The Secretary provided a list of roof falls at the mine which contains 14 pages listing
unintended roof falls from 2005 to the present. Sec'y Ex. 26. The exhibit shows 125 roof falls
and, in reviewing the document, Roberts identified that the majority of the falls are at
intersections. With this history, Roberts knows that an intersection like the one he cited is a
major area of concern. {Tr. Vol. I, 205-208).

Roberts explained that the rock in the roof of the mines in this part of Illinois are a weak
composition and, given everything he observed, it is highly likely this over-sized width will
result in a roof fall in the intersection. When the roof fails it won't be a single rock but, rather, a
large piece of roof that will cause fatal crushing injuries. The falls, such as the one expected in
this intersection, are often 20 feet in length and result in the entire intersection collapsing. In
previous roof falls, there was not an obvious defect prior to the fall. Based on such, Roberts
determined that a roof fall is even more likely in an area where he can see that the area is too
wide. He noted this violation as moderate negligence because no further defects were visible,
but he opines that he should have indicated high negligence because management should have
seen the over-wide intersection. There are two production bosses and mine managers who
should have seen the turn of the comer and the significant cuts on the sides and made an effort to
measure and repair the area. (Tr. Vol. I, 213).
Roberts did not note any roof defects at the time of the citation and the roof was bolted as
required by the roof control plan. The mine uses fully grouted resin rebar bolts of varying length,
e.g., 4 ft, 6 ft, and sometimes longer bolts. The bolts are 3/4 inch in diameter and spaced 4.5 feet
apart. Since this diagonal was off by more than two feet, it was necessary, according to the pian,
to install standing support. Roberts agrees that there is nothing to indicate that a diagonal greater
than 68 feet is enough to cause a roof fall but, Roberts explained, roof falls do not always follow
strict parameters. When the intersection diagonal exceeds the plan amount in a mine with a
history of roof falls and the type of roof here, a fall is likely to happen. {Tr. Vol. I, 240).

33 FMSHRC Page 716

Ward believes that the roof was in good condition at the intersection and that additional
bolts were placed in the area. He said that the mine normally places five to six bolts in a pattern,
and those bolts create a beam that helps support the roof. (Tr. Vol. IL 8-9). The total diagonal.
according to Ward, was 71 feet, and 68 is required. According to Ward, the 3 foot difference
does not make it likely that an accident will occur. He opines that the roof was adequately
pinned and looked good. He discussed how the comers had been cut to create the longer
diagonal; the miner will cut them to give extra room for equipment and, even though they should
be 68 feet, the miner can easily make a mistake given the difficulty of judging the length as the
comers are cut. Ward agrees that this area should have been subject to a preshift exam and that
faults do occur at intersection.
Chad Barras is the area safety director for Peabody, i.e., the parent company of Big
Ridge, and is responsible for 12 mines in the area. He has worked for Peabody since 2003, and
has an engineering degree in mining. He is familiar with roof control plans, including those at
the Big Ridge mines. {Tr. Vol. II, 21-22). He understands the plan to mean that, if one diagonal,
required to be 34 feet, is found to be greater than 36 feet,. then that triggers the need extra
support. His review of the roof control plan, Sec'y Ex. 25 p.
19, indicates that only one
diagonal at 34 feet, not the sum of the two widths, must be longer than required in order to
trigger a violation. He takes a much different approach to the roof control plan than does
Roberts. Barras believes the plan refers to the average diagonal length, which in this case was
35.5 feet, and how there must be a more than a two foot difference before additional support is
required.

8,

Next, Barras believes that a roof fall will not occur. He bases his opinion on the fact that
the extended width is small, Ward saw no cracks or problems with the roof, and the area is
typically bolted with 4 foot bolts, or even 6 foot boJts in the "turned area". In his view, the plan
does not require more than extra bolts. However, even ifl determine that the plan called only
for extra bolts as opposed to standing support, no one credibly testified, that there were such
bolts in place.. Barras assumed there were extra bolts, and Ward said there "probably are" extra
long bolts, but he was not able to identify where they were placed. Further, the plan provides
that bolts will be on two comers. Ward testified that bolts were only on one comer. After
observing Barras and understanding that he had no direct knowledge of the area cited, I give his
testimony no weight.
With regard to the first and second elements of the Mathies test-1 have already found
that there is a violation of section 75.220(a){l), and I find that there is a discrete safety hazard,
i.e., the hazard of a roof fall. On the issue of a discrete safety hazard, I credit MSHA inspector
Roberts' testimony detailed above. With regard to the third element of Mathies, I again credit
the testimony of Roberts that, given the location of the wide entry, the type of roof, the number
of roof falls, and the absence of any additional support, the roof is likely to fall in the continued
course of mining. In doing so, I agree that the roof fall will be a large one, in an area traveled
daily by miners, and that, as a result, a serious injury will occur.

33 FMSHRC Page 717

In U.S. Sieel, the Commission addressed several defenses to the designation of a
violation as S&S, including the operator's argument that its violation of a ventilation plan was
not S&S because at the time of the violation the level of methane was low and not at explosive
levels. In rejecting those defenses, the Commission explained that "the question [of whether the
violation is S&S] must be resolved on the basis of the circumstances as they existed at the time
the violation was cited and as they might have existed had normal mining operations continued."
7 FMSHRC 1125, 1130 (Aug. 1985). In a later case, the Commission further explained, "[t]he
operative time frame for determining if a reasonable likelihood of injury exists includes both the
time that a violative condition existed prior to the citation and the time that it would have existed
if normal mining operations had continued." Rushton Mining Co., 11FMSHRC1432, 1435
(Aug. 1989).
In the current proceeding, the presence of adverse roof conditions may increase the
likelihood of a roof fall, but the absence of such adverse conditions does not necessarily
eliminate the possibility that a roof fall might occur when an operator fails to follow its roof
control plan. Moreover, requiring the Secretary to prove a S&S violation by establishing that the
mine roof is under a specific type of stress that could lead to a roof fall, as urged by the operator,
places an onerous burden of proof on the Secretary. I find that the violation is significant and
substantial and assess a penalty of$10,000.00

e.

Citation No. 6680534

On April 16, 2209, Inspector Keith Roberts issued Citation No. 6680534 for a violation
of section 75.512 of the Secretary's regulations. The citation alleges the following:
Inadequate weekly examinations of the battery-powered Long
Airdox/DBT coal scoops, Co. Nos. 511 & 512, were conducted
during the week ending April· 11, 2009 in that the conditions listed
in Mine Citation Nos. 6680531, 6680532 & 6680533 were not
identified nor corrected and recorded in a book maintained for that
purpose. The coal scoops are in operation on Unit 1, MMU 001-0
& 011-0. Termination ofthis citation requires that all persons
assigned to perform weekly examinations of electrical equipment
be re-instructed in the requirements of the cited standard.
The cited standard requires the following:
All electric equipment shall be frequently examined, tested, and
properly maintained by a qualified person to assure safe operating
conditions. When a potentially dangerous condition is found on
electric equipment, sucli equipment shall be removed from service
until such condition is corrected. A record of such examinations
shall be kept and made available to an authorized representative of
the Secretary and to the miners in such mine.

33 FMSHRC Page 718

30 C.F.R. § 75.512. Section 75.512-2 specifies that "[t)he examinations and tests required by
§75.512 shall be made at least weekly. Permissible equipment shall be examined to see that it is
in permissible condition." 30 C.F.R. § 75.512-2. Inspector Roberts determined that an injury
was reasonably likely to occur, that such an injury would result in lost workdays or restricted
duty, that the violation was S&S, that one person was affected, and that the negligence was
moderate. A penalty of $4,329 .00 has been proposed.
The underlying citations regarding the condition of the scoops were not contested by the
operator. The three citations, Sec'y Ex. 28, were issued because the scoops had accumulations
of oil: In each citation, Roberts lists the condition he observed that led to the oil leak and
subsequent accumulation. {Tr. Vol. I, 217-219.) All were issued on April 16, 2009. Roberts
testified that the condition of the scoops led him to believe that there was an inadequate
examination of these three scoops. Roberts began by examining the weekly electrical
examirui.tion records. Sec'y Ex. 29. There were no examination records after 4/11/09 that would
indicate that someone had examined the condition of the scoops. {Tr. Vol. I, 221). Roberts
explained that there is no requirement that the examination records be filled out at the end of the
shift, although that is how it is routinely done. At hearing, Big Ridge provided examination
records that demonstrated that the equipment had been examined after April 11, i.e., the date of
the records that Roberts reviewed.
The examination books examined by Roberts at hearing included entries after April 11
and, specifically, noted that on April 15, the 511 scoop was repaired and washed. However,
Roberts says, if it had been washed the day before, he would not have seen the oil accumulations
that he cited. The books do show that the 511 and 512 scoops were examined on April 9, 2009,
a week before Roberts issued his citations. (Tr. Vol. I, 224-225).· The mine argues that the
scoops had been inspected a week before, as required, and any problems that were noted, were
repaired. The fact that Roberts found accumulations a week later does not support a finding that
the examination was inadequate.
The mere fact that the conditions existed at the time of the inspection is insufficient
evidence from which to infer that the conditions existed at the time of the weekly examination
five days prior. The fact that the scoops had accumulations some days after the last weekly
inspection is not enough to prove the inadequacy of the weekly inspection. See Dumbarton
Quarry Association, 21 FMSHRC 1132 (Oct. 1999) (ALJ). There is insufficient evidence to link
the inadequate examination with conditions a number of days later, particularly in light of the
fact that the equipment was used for many hours after the examination but before the citation
was issued. Therefore, the citation is vacated.

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 11 O(i)
of the Mine Act delegates to the Commission and its judges the authority to assess all civil

33 FMSHRC Page 719

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, in 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. I assess the following penalties:
Order No.
Citation No.
Citation No.
Order No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Total:

6683136
8414037
6683161
6683186
6682879
6682881
6682883
6680529
6680534

$ 15,000.00
$ 50,000.00
$ 10,000.00
$ 4,000.00
$ 6,000.00
$ 60,000.00
$ 50,000.00
$ 10,000.00
vacated
$ 205,000.00

The parties have settled the remaining citations and orders contained in these dockets. I
accept the representations and the modifications of the Secretary as set forth in the file and on
the record in these cases. I have considered the representations and documentation submitted
and I find that the modifications are reasonable. I conclude that the proposed settlement is
appropriate under the criteria set forth in section l lO{i) of the Act. The motion to approve
settlement is GRANTED.
The settlement amounts are as follows:
Docket Number LAKE 2009-491

33 FMSHRC Page 720

Citation No.
8414025
6680175
8414027
8414028
8414030
6683122

Modification to
Citation
Modify from Fatal to
Permanently Disabling
Modify from S&S to
NonS&S
NIA
Modify from Fatal to
Permanently Disabling
Modify from 15 to 2
Persons Affected
Modify from S&S to
NonS&S

Proposed Penalty

Am.ended Penalty

$4,689

$2,107

$1,530

$309

$2,901
$4,329

$2,321
$1,945

$3,143

$874

$1,304

$264

Docket Number LAKE 2009-491 continued

Citation No.
6683125
6683126
6683127
6683128
6682871
8414035
8414036
6683132
6683134

8414039
8414041
8414043
8414044
8414045
8414046
6683139

Modification to
Citation
Modify from High to
Moderate Negligence
Modify from High to
Moderate Nel!li2ence
Modify from S&S to
NonS&S
Modify from S&S to
NonS&S
Modify from 4 to 2
Persons Affected
Modify from High to
Moderate Negligence
Modify from High to
Moderate Negligence
Modify from High to
Moderate Negligence
Modify from S&S to
Non S&S, and High to
Moderate Negligence
n/a
n/a
n/a
n/a
n/a
n/a
n/a

Proposed Penalty

Am.ended Penalty

$13,268

$3,996

$13,268

$3,996

$5,961

$1,203

$3,996

$807

$3,689

$2,678

$2,473

$745

$2,678

$807

$2,678

$807

$4,689

$285

$2,678
$2,678
$2,678
$2,678
$2,678
$2,678
$2,678

$2,410
$2,410
$2,410
$2,410
$2,410
$2,410
$2.410

33 FMSHRC Page 721

6683140
8414048
8414049
6683141
6683142
6683143
6683144
6683145
8414054
8414055

Modify fr~m S&S to
NonS&S
n/a
n/a
Modify from S&S to
NonS&S
Modify from S&S to
NonS&S
Modify from High to
Moderate Negligence
n/a
n/a
Modify from S&S to
NonS&S
Modify from High to
Moderate Negligence
and Number of People
I Affected from 50 to 2

I

$1,944

$392

$2,473
$3,143
$3,405

$2,473
$3,143
$687

$11,306

$5,653

$2,678

$807

$2,678
$3,996
$1,795

$2,410
$3,397
$363

$10,437

$874

Docket Number LAKE 2009-491 continued

Citation No.
8414056
6683147
6683148
6682875
6682876

Modification to
Citation
n/a
n/a
n/a
n/a
n/a

Proposed Penalty

Amended Penalty

$2,678
$3,996
$2,678
$2,473
$2,473

$1,875
$3,397
$2,410
$2,473
$2,473

Docket Number LAKE 2009-532

Citation No.
6682882
6680190
6680193
6680194
8414066
6682889
6682890
6682891

Modification to
Citation
Modify from 6 to 2
Persons Affected
Modify from 18 to 6
Affected
n/a
Modify from S&S to
NonS&S
n/a
Modify from 18 to 3
Persons Affected
n/a
Modify from High to

Proposed Penalty

Amended Penalty

$12,248

$5,962

$2,901

$1,530

$4,689
$3,996

$4,689
$807

$2,473
$4,689

$2,226
$1,530

$2,678
$2.678

$2,678
$807

33 FMSHRC Page 722

6682895
6682897
6683168
6682899
6680208
6680209
6680530
6680531
6680532
6680210

Moderate Negligence
Modify from 18 to 3
Persons Affected
Modify from High to
Moderate Negligence
Modify from Fatal to
Lost Workdays
Modify from 3 to 1
People Affected
Modify from 10 to 2
People Affected
n/a
Modify from 8 to 4
People Affected
Modify from High to
Moderate Negligence
Modify from S&S to
NonS&S
Modify from 16 to 6
Peoole Affected

$4,689

$1,530

$2,678

$807

$1,657

$500

$2,282

$1,796

$10,437

$2,902

$2,678
$7,578

$2,678
$3,996

$4,329

$1,945

$13,268

$2,678

$10,437

$5,504

Docket Number LAKE 2009-532 continued

6680211
6682904
6682908
6683184
6683185
6682929
6680218
7594739
7594786
6680219
6682939
6682940
6682941
7594744
Settlement Total:

Modify from 16 to 6
People Affected
Modify from High to
Moderate Negligence
n/a
Modify from S&S to
NonS&S
Modify from S&S to
NonS&S
n/a
Modify from 10 to 6
People Affected
n/a
n/a
Modify from Fatal to
Permanently Disabling
Modify from 14 to 2
People Affected
Modify from 18 to 6
People Affected
n/a
n/a

$10,437

$5.504

$2,901

$874

$3,996
$3,996

$3,596
$807

$2,678

$550

$2,678
$4,689

$2,678
$2,473

$1,795
$1,304
$5,080

$1,795
$1,304
$2,282

$3,143

$874

$4,689

$2,473

$1,795
$1,795

$1,795
$1,795
$146,206.00

33 FMSHRC Page 723

III. ORDER
Based on the criteria in section l lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
penalties listed above for a total penalty of$205,000.00 and assess the stipulated penalties in the
amount of $146,206.00. Big Ridge Inc. is hereby ORDERED to pay the Secretary of Labor the
sum of$351,206.00 within 30 days of the date of this decision.

Distribution: (First Class Certified Mail)
Tyler McLeod, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800,
Denver, CO 80202
Arthur Wolfson, Jackson Kelly, PLLC, 3 Gateway Center, Suite 1340, 401 Liberty Avenue,
Pittsburg, PA 15222

33 FMSHRC Page 724

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

March 11, 2011
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
V.

SHAMOKIN FILLER COMPANY
INC.,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 2009-775
A.C. No. 36-02945-194224
Docket No. PENN 2009-825
A.C. No. 36-02945-197364
Docket No. PENN 2010-63
A.C. No. 36-02945-200482
Mine: Carbon Plant
CONTEST PROCEEDINGS
Docket No. PENN 2009-736-R
Citation No~ 7011691; 8/12/09
Docket No. PENN 2009-737-R
Citation No. 7011692; 8/12i09

SHAMOKIN FILLER COMPANY,
INC.,
·Contestant
V.

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

Docket No. PENN 2009-738-R
Citation No. 7011691; 8/13/09
Docket No. PENN 2009-739-R
Citation No. 7011952; 8/20/09
Docket No. PENN 2009-740-R
Citation No. 7011695; 8/25/09
Docket No. PENN 2009-741-R
Citation No. 7011696; 8/25/09
Docket No. PENN 2009-742-R
Citation No. 7011697; 8/25/09
Docket No. PENN 2009-763-R
Citation No. 7011699; 8/27/09
33 FMSHRC Page 725

Docket No. PENN 2009-776-R
Citation No. 7011700; 8/31/09
SHAMOKIN FILLER COMPANY,

INC.,

Docket No. PENN 2009-777-R
Citation No. 7011781; 8/12/09

Contestant

Docket No. PENN 2009-778-R
Citation No. 7011782; 8/31/09

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

Docket No. PENN 2009-779-R
Citation No. 7011783; 8/31/09
Docket No. PENN 2009-780-R
Citation No. 7011784; 9/01/09
Mine: Carbon Plant
Mine ID: 36-02945

DECISION
Appearances:

Jessica R. Brown, Esquire, Office of the Solicitor, US Department of
Labor, Philadelphia, Pennsylvania, for the Petitioner
Adele L. Abrams, Esquire, CMSP, and Diana R. Shroeher, Esquire, for the
Respondent, Shamokin Filler Company, fuc.

Before:

Judge John Kent Lewis

STATEMENT OF THE CASE
This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et
seq. ("the Act").
The petitions for assessment of civil penalties and associated contest matters in the
above-captioned dockets were consolidated for hearing by ALJ Alan G. Paez, who was originally
assigned to the case.
By consent of the Court and the parties, the sole question at trial would be limited to
whether the federal Mine Safety and Health Administration ("MSHA") has jurisdiction over the
subject facility, Carbon Plant.
During the period of discovery, this case was reassigned to the undersigned ALJ on
September 10, 2010, by an order of reassignment from Chief ALJ Robert J. Lesnick. The
hearing date and location were unaltered by the reassignment. Several motions were filed by the
33 FMSHRC Page 726

parties prior to hearing. 1
On September 27, 2010, The Secretary of Labor ("Secretary") filed with this Court a
motion in limine to preclude any evidence ofMSHA inspection activity, or lack thereof, at any
facility in the United States other than the Respondent's Carbon Plant. On September 27, 2010,
for reasons discussed infra, this Court, after full hearing and argument, granted Secretary's
motion. Pursuant to Commission Rule 70, 29 C.F.R. §2700.70, Shamokin Filler Company, Inc.
("Respondent") moved for stay of the proceedings and requested certification for interlocutory
review by the Commission. This Court denied such2 and the case thereupon proceeded to trial on
September 27-28, 2010 in Harrisburg, PA.

LEGAL PRINCIPALS
Section 3(h)(l) of the Act defines ''mines" that are intended to be covered under the Act.
Section 3(h)(i) provides:
"coal or other mine" means (A) an area ofland from which minerals are extracted
in nonliquid form or, if in liquid form, are extracted with workers underground,
(B) private ways and roads appurtenant to such area, and (C) lands, excavations,
underground passageways, shafts, slopes, tunnels and workings, structures,
facilities, equipment, machines, tools, or other property including impoundments,
retention dams, and tailings ponds, on the surface or underground, used in, or to
be used in, or resulting from, the work of extracting such minerals from their
natural deposits in nonliquid form, or if in liquid form, with workers underground,
or used in, or to be used in, the milling of such minerals, or the work of preparing
coal or other minerals, and includes custom coal preparation facilities. fu making
a determination of what constitutes. mineral milling for purposes of this Act, the
Secretary shall give due consideration to the convenience of administration
resulting from the delegation to one Assistant Secretary of all authority with
respect to the health and safety of miners employed at one physical
establishment[.]
Section 3(h)(2)(i) of the Act further defines ''the work of preparing coal". Section
3(h)(2)(i) provides:
"work of preparing the coal" means the breaking, crushing, sizing,
cleaning, washing, drying, mixing, storing and loading of bituminous coal,
1

These motions, inter alia, included Secretary's Motion in Limine to Exclude the Expert
Witness Testimony of Lawrence Gazdick, filed on September 27, 2010, and denied on October
13, 2010; Secretary's Motion in Limine, filed on September 27, 2010, and granted on October
27, 2010; Secretary's Motion to Quash Subpoena, filed on October 18, 2010, and granted on
October 20, 2010; and Respondent's Motion to Compel, filed on October 19, 2010, and denied
on September 27, 2010.
2
By Order dated December 10, 2010, the Commission denied Respondent's motion for
interlocutory review.
33 FMSHRC Page 727

lignite, or anthracite, and such other work of preparing such coal as is
usually done by the operator of the coal mine[.]
The MSHA/OSHA3 Interagency Agreement of 1979 ("MOU") further clarifies the
jurisdiction of each agency. Concerning jurisdictional disputes, Point 5 of the MOU provides
that:

The following factors, among others, shall be considered in making
determinations of what constitutes mineral milling under section 3(h)(l) and
whether a physical establishment is subject to either authority by MSHA or
OSHA: the processes conducted at the facility, the relation of all processes at the
facility to each other, the number of individuals employed in each process, and the
expertise and enforcement capability of each agency with respect to the safety and
health hazards associated with all the processes conducted at the facility. The
consideration of these factors will reflect Congress' intention that doubts be
resolved in favor of inclusion of a facility within the coverage of the Mine Act.
PROCEDURAL HISTORY

Motion in limine

A preliminary evidentiary issue before this Court was whether Secretary's motion in
limine to preclude evidence of MSHA' s exercise of jurisdiction in facilities other than
Respondent's Carbon Plant should be granted. This Court notes that MSHA's jurisdiction over
an individual facility mm~t be decided on a case-by-case basis, looking at both the statutory
language and the nature and purpose of the specific facility. Pennsylvania Electric Company v.
FMSHRC, 969 F.2d 1501 (3d Cir. 1992).
The Respondent argued that the Court should have heard evidence regarding MSHA's
lack of exercise of jurisdiction over certain "bagging operations" similar to Respondent's,
including MSHA's past deliberations and determinations regarding such. However, this Court
holds that such evidence would.be irrelevant to and, indeed, detrimental to resolving the critical
jurisdictional questions of what the Carbon Plant has been. and is as a facility, and what it has
done. and is doing in its operation and processes. (Emphasis added.)
Given that the fundamental jurisdiction inquiry before this Court involves the specific
activities and operations of Respondent's particular Carbon Plant facility, this Court found that
Respondent's proposed evidence pertaining to some other similar facilities would be essentially
irrelevant. See Ohio Valley Transloading Company, 19 FMSHRC 813, 813 (Apr. 1997)(0nlythe
facts pertaining to the subject facility were relevant).
3

0SHA refers to the Occupational Health and Safety Administration.
33 FMSHRC Page 728

Although Commission Rule 63, 29 C.F.R. §2700.63, states that relevant evidence may be
presented as long as it is not unduly repetitious or cumulative, the Rules do not define
"relevancy" or its limitations. Therefore, the Commission may look to the Federal Rules for
guidance. Cactus Canyon Quarries of Texas, 23 FMSHRC 280, 287 (2001). Pursuant to Rule
403 of the Federal Rules of Evidence, it is provided that evidence, although relevant, maybe
excluded if its probative value is, inter a/ia, substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or if such introduction involves waste of time or needless
presentation of cumulative evidence.
Presentation of evidence ofMSHA's lack of enforcement at other similar facilities
involves all of the foregoing pejorative evidentiary consequences. This Court finds that it would
be cumbersome and impractical to begin the evaluation of the Carbon Plant's jurisdictional
question with a review of whether and why MSHA has exercised or should exercise jurisdiction
over similar "bagging facilities" located in both the Carbon Plant's specific geographical area
and in other parts of the country.

In its prehearing pleading and argument, Respondent requested permission to present
evidence that other similar ''bagging operations" - principally Keystone Filler and Kimmel were no longer under MSHA jurisdiction and were direct competitors of Respondent.4 (Emphasis
added.)
This Court rejected said request and granted the Secretary's motion in limine on the
grounds that sueh evidence wouJd be irrelevant and/or, if relevant, unduly confusing and
misleading. Ultimately, this Court had to consider whether such evidence would aid it as trier of
fact and law in deciding the issue of jurisdiction. For reasons set forth below, this Court found
that the admission of such evidence to be utilized in a comparative analysis of similar facilities to
that of Carbon Plant would be improper and unreasonable.
This Court finds no appellate case law on point regarding the admissibility of alleged
similar facility evidence to establish jurisdiction. However, after careful consideration, this Court
is convinced that a comparative facility analysis approach to jurisdiction is improper. Rather than
considering the specific characteristics of a particular facility- which is the usual analytical
approach in almost all Mine Act cases - the decision-maker must instead engage in unnecessary
and often confusing collateral review.
While the ALJ holding in Dicaperl Minerals Corp., 28 FMSHRC 720 (July 2006), has no
binding effect, this Court finds the rationale of ALJ Manning in ultimately rejecting similar
facility evidence as to jurisdiction to be compelling. In Dicaperl Minerals, the subject plant was
a free standing perlite (volcanic glass) expansion facility. Id. The plant was not located at or
4

This court finds that evidence showing that a facility is in competition with another
facility for some of its products may have little relevance or materiality when determining
jurisdiction. Facilities may be distinctly different in overall :function and character, but still may
offer some similar products, placing themselves in competition for a particular product.
33 FMSHRC Page 729

adjacent to a quaITy. Id. The plant operator offered evidence that most, if not all, other perlite
plants that were "geographically and operationally separate" from mining operations - just as
Dicaperl's plant-were under OSHAjurisdiction. 5 Id. at 734. The facility owner further
maintained, in arguments similar to those advanced by Respondent, that continued inclusions of
its plant under MSHA's jurisdiction, while similar perlite facilities were not under MSHA
jurisdiction, was unreasonable, defying common sense. Id. at 724. The "bizarre result" was that a
Dicaperl's facility was the only such facility still under MSHA's jurisdiction, while its
competitors were under OSHA jurisdiction. Id. at 735.
ALJ Manning initially overruled the Secretary's objections to the introduction of
Dicaperl's evidence ofMSHA's lack of enforcement at other perlite facilities as being irrelevant.
Id. at 736. However, he ultimately concluded that MSHA's failure to inspect other perlite
facilities was not relevant to the issue of whether the Secretary had the authority to enforce
MSHA's standards at the operator's plant. Id. ALJ Manning observed that no perlite facility is
exactly alike and it would be "quite cumbersome and impractical" for Commission judges, when
considering whether a facility should be subject to MSHA jurisdiction, to evaluate whether
MSHA should be exercising jurisdiction at similar facilities. Id. Essentially concluding that such
matters called for case-by-case factual determinations, ALJ Manning held that too many factors
come into play in a similar facility jurisdictional analysis. Id.
Just as no mine is exactly alike, and no perlite expansion operation is exactly alike, this
Court believes no "bagging operation" is exactly alike. To have allowed Respondent's proposed
similar facility evidence into the record would have required this Court to embark upon a
jurisdictional safari, searching out all similar facilities in the country and comparing like and
non-like activities. structures, operations, and products with that of the subject Carbon Plant.
(The collateral inquiries would be endless -- such as in the present controversy - where this Court
would be required to determine why some bagging facilities chose to remain under MSHA
jurisdiction. ,
Given the clear navigational directions for finding jurisdiction set forth in pertinent
portions of the Mine Act and MOU, without the need for such evidence, this Court granted the
Secretary's motion in limine and rejected the Respondent's proposed similar facility evidence as
being irrelevant and as creating unduly burdensome demands. 6
This Court notes that Respondent was in no way prejudiced by this ruling because it still
had the ability to present live and depositional testimony concerning the Carbon Plant's nature,
purpose, and specific activities; photographic and documentary evidence in support of the
foregoing; and expert witness testimony in support of the foregoing. Further, it could present
5

Unlike in the case sub judice, more extensive evidence regarding the location and
number of similar plants, locally and nationally, was offered.
6
Further, if this court would have allowed Respondent's proposed evidence, as set forth
in its offers of proof, it would have accorded such little probative value in light of this court's
analysis of the law and assessment of evidence and witness credibility, as discussed intra.
33 FMSHRC Page 730

evidence establishing or tending to prove that MSHA, in or about 2004 or thereafter, detennined
that the Carbon Plant should have been excluded from MSHA jurisdiction and any evidence
showing that determination was conveyed to the Respondent.

FACTUAL BACKGROUND AND SUMMARY OF TESTIMONY
The Respondent operates a facility in Shamokin, Pennsylvania, that sells products
consisting of anthracite coal that is unmixed, as well as anthracite coal that is blended with other
carbonaceous materials. It further manufactures a variety of carbon-based products for the steel,
glass, rubber and plastics industries. Prior to hearing, the parties stipulated that the Respondent
neither extracts, washes, cleans, or crushes coal in its Carbon Plant that is at issue nor does it
own any mines or subsidiaries that perform these functions. Shortly after assuming ownership of
Shamokin Filler Company, the new owners7, Don and William Rosini, requested that MSHA
determine that the Carbon Plant should properly be under the jurisdiction of OSHA, rather than
MSHA.
The witnesses at hearing testified as follows:
Matthew Bierman: Bierman is a coal mine inspector for MSHA. Prior to his becoming an
inspector, he worked for Jeddo Coal Company, a surface anthracite coal operation in Hazelton,
Pennsylvania, where he was a foreman in the preparation plant which included doing some
quality control"woi:k. He has a degree in Environmental Resource Management. Geology classes
· were required in obtaining this degree. He testified that no coal is one hundred percent coal;
rather, the normal scale for anthracite coal is typically between eighty-seven and ninety-two
percent (87-92%). (Tr. 44-45.)
As part of his employment as an inspector, he was required to administer three complete
health and sa:(ety inspections, or EOl inspections, at Respondent's Carbon Plant. These
inspections involve approximately forty to fifty (40-50) hours on site. Although his last full
inspection was in August 2009, he was sent to the Carbon Plant in October 2009 for the purposes
of observing the flow of coal at the Carbon Plant and reporting back to his supervisors because
the Respondent had challenged MSHA'sjurisdiction over the facility. (Tr. 46-49.)

In his PowerPoint, Biennan first showed piles of coal, which he explains has already been
washed and sized prior to arriving at the Carbon Plant. Second, explained that the feed hopper is
what coal is put into before it proceeds by conveyor unit to the dryer. In the dryer, a heating unit
blows hot air through a tube as it rotates. Because it is slightly sloped, the coal is dried as it
moves down the tube. From here, the coal enters the screens. As the screen gyrates and
circulates across the material, the oversized material is removed and the needed material falls
7

Though Respondent's description of the Rosini cousins as being new owners is
technically accurate, they are in fact sons of the original Rosini owners, who were brotherpartners and still are on Respondent's payroll. Shamokin Filler is a subchapter S corporation. (Tr.
385.)
33 FMSHRC Page 731

through. He testified that the Carbon Plant has two different kinds of screens because they
produce different products with the materials from the different screens. After screening, the
Respondent's employees informed Bierman that the coal is then moved to storage bins until it is
loaded or bagged. Bierman never made a formal inquiry to management whether this process
was correct. {Tr. 49-53.)
Although he acknowledged that the facility also packaged and sold graphite pellets, this
was not a primary concern of his inspections. This process was only important to him in that the
inside dryer typically used to dry graphite was sometimes used to dry coal when the outside dryer
was not working. The inside feed hopper was used for coal at this time as well. Bierman further
testified that the Respondent's facility includes a lab, where its products are inspected for quality
control reasons. Here, the Respondent could ensure that the materials it produces meets the
customer's specifications. {Tr. 54-60.)
Not only did employees tell Bierman that coal was being stored, but they also told him
that they did not typically mix the coal with any other materials. Again, Bierman never
confirmed this with management, nor did he test any of the bags of materials located on site. He
did, however, testify that he saw hundreds of tons of coal at the facility while the existence of
metallurgical and petroleum coke, which are not covered under the Mine Act, was much less
prevalent. These measurements were adduced by estimation rather than scientific calculations.
(Tr. 54, 62.)

John Petrulich: Petrulich was the former production manager at Respondent's Carbon Plant. In
this position, he testified that his primary duties were the coordination of different orders to
ensure t.ltat they were shipped on time, the control of the information flow as to what products
were to be run by production, the training of lab technicians, the interviewing and hiring. of some
· general laborers, and the revision and implementation of standard operating procedures. He was
later termina~ed after an agreement. The reason for termination listed on his unemployment
papers was "attitude." (Tr. 97, 99.)

In his role of training the lab technicians, Petrulich demonstrated how to check moisture
content both after receiving the coal and after drying to ensure that the levels were acceptable.
He also monitored the sulfur values and ash content of the coal. Because of these roles, he had to
be familiar with the makeup of the Respondent's products. Knowing the specifications of the
products was also important because individual customers needed materials at different
specifications. Petrulich was not as familiar with the actual processing that occurred on site. (Tr.
97, 98, 100, 101.)
Petrulich also testified that coke was used more as an additive or filler. The coal,
however, was not necessarily changed into something else because the coke was added to it.
Rather, the coke was used as a cost effective weight increase and could have just as well have
been alternative fillers, but the bulk of the bag content was ultimately coal. However, he later
testified that there were several Carbon Plant products that contained no coal whatsoever. He

33 FMSHRC Page 732

also testified that due to the properties of most of the non-coal materials, it could not be mistaken
for coal easily. His one caveat was that coal was often crushed into fine dust from the weight of
the "supersacks,"8 which could look like carbon black to an untrained eye. (Tr. 101-105.)

Next, Petrulich testified to emails that were sent both to customers concerning
Respondent's products and among employees of the Carbon Plant as well as the owners in the
days leading up to a visit by MSHA, that will be explained in more detail infra. One string of
emails demonstrates that a customer was questioning the specifics of one product and owner,
William Rosini responded by writing that Shamokin B-593 is "100 percent anthracite coal and
barley size." The other emails were concerned with the jurisdictional visit that members of
MSHA were to conduct on July 28, 2009. The first email stated, "We need to convince [MSHA]
that we blend many things together to make our products. Do we have piles of different types of
carbon sitting around?" William Rosini replied that their were and each type should be jarred
and labeled. When Petrulich asked if he was to retrieve, jar, and label each, William Rosini told
him justto retrieve it and Rosini would label it himself. Later that day, William Rosini send an
email saying "It's probably a horrible idea to be running straight coal when they come. Let's mix
the met coke with it while there are there." The last string of emails were sent from Donald
Rosini writing, "Even the mystery bank can be represented as a coke and graphite blend."
William Rosini responded, "If need be we can demonstrate by cutting a sack of material on the
pile."(Tr.110-111, 113, 115-120.)

In explaining the purpose of the emails, Petrulich testified that the owner5 were
attempting to "trick" MSHA into believing that its continued jurisdiction over the Carbon Plant
was improper. The Respondent had never previously suggested putting graphite or coke into a
pile of coal. Further, he stated that the coaJ and graphite were even separated on the mystery bank
during the period of time that he worked there. Even under cross-examination, he maintained
that he had no, belief that the owners were simply attempting to demonstrate the full range of
their products and processes. But he did admit that he did not know whether any of the ideas
spoken in the emails came to fruition. (Tr. 114, 121-22, 134-139, 141-142.)

Ronald Farrell: Farrell is a coal mine inspector for MSHA, who only inspects surface mines.
Prior to working for MSHA, he worked at a coal processing plant and strip mine for nearly
twenty-eight (28) years as a coal inspector, a second-shift supervisor, and a day-shift supervisor.
He has only inspected the Respondent's Carbon Plant. He testified that dllri.ng each EOl
inspection, they must inspect the entire facility and at the date of this hearing, he had last been
there in September 2010. During his inspections of the Carbon Plant, he observed employees
"stockpiling [coal], picking it up, feeding it into a feed hopper, drying it, screening it, and loading
it out for sale." He had only been to Respondent's Carbon Plant for the purposes of inspections,
never to specifically monitor the flow of coal. (Tr. 162-164.)

8

Supersacks are one-ton bags of coal or other products that are sold on the market.
33 FMSHRC Page 733

During an inspection on March 8, 2010, Farrell asked an employee9 to explain the Carbon
Plant's processes. He described the process as follows: "Coal from several sources is fed to the
dryer. Then up a bucket elevator, sized, then goes to the proper phase. They make three
products, Barley, No. 5 and 20, all coal." He wrote this information down because his supervisor
had accompanied him on the inspection and was unfamiliar with the Carbon Plant's processes.
He did not sample or analyze the coal and recognizes that it may have been mixed with another
carbonaceous product although the employee did not allude to that when he told Farrell about the
process. He did not ask management about the correctness of this statement, and he did not ask
the employee about the manufacturing processes that occur on other parts of the Respondent's
property. (Tr. 168-169.)
Although Farrell was not part of the 2004 jurisdictional fact-finding committee
specifically for the Respondent's Carbon Plant10, he testified that he was aware that a discussion
was held about the jurisdiction of the Respondent's Carbon Plant and it was later decided that no
actual offer was to be made. This differed from his deposition testimony indicating that an offer
had been made. He explained that he had assumed an offer had been made from conversations
that he had overheard around the office. Later, though, other documents were produced, mainly
written replies from two other facilities, to clarify that he had heard incorrectly. He could not
state, however, whether the Carbon Plant was, in fact, given no offer to opt out of MSHA
jurisdiction or whether the options given to these other two facilities were absolute options to
move under OSHA jurisdiction. (Tr. 171-173.)
Farrell reviewed the report regarding the Carbon Plant and testified that the report was
not a detailed description of the Respondent's activities. He also noted that it was much less
detailed than the report that he completed for a different facility. It failed to mention the
blending of non-mine materials with the coal and the existence of some products that were
entirely non-mined materials. He further testified that Bierman's PowerPoint was not an accurate
detailed description of the Carbon Plant because it too failed to acknowledge the existence of
several matenals and processes at the facility. (Tr. 184, 208-210, 216-218.)
Farrell conceded that MSHA does not have any specific safety standards that pertain to
manufacturing, but he stated that he believed that the Respondent's products should be
considered processed coal and under MSHA jurisdiction. In his deposition, he stated he would
not consider a product that was forty percent (40%) coal to be a "mined product," but now that he
understands what metallurgical coke is, his answer would be different. (Tr. 118, 223)

Patrick Boylan: Boylan is currently the senior staff investigator and staff assistant with MSHA
whose duties include accident coordination, peer review coordination, and 110 investigations
under the Act. He was previously a conference and litigation representative in District 1, a
promotion from an underground mine inspector. He began his mining career at the Reading
Anthracite Coal Company breaker, or custom coal preparation plant, where he worked for twenty
9

The employee's name was redacted for anonymity purposes.
°Farrell was a part of the fact-finding committee for other facilities.

1

33 FMSHRC Page 734

(20) years. He has been to Respondent's Carbon Plant and last inspected it in 2004. {Tr. 233236.)
Boylan spoke to and obtained a declaration from Ricky Rollins, the manager of Steel
Dynamics, indicating the company purchased about 4,300 tons of Shamokin 585 from the
Respondent, who advertised that the product was one hundred percent (100%) coal and not a
mixture. Boylan did not know~ and made no assertion that, Rollins checked the ash and sulfur
content to ensure that the product was completely anthracite coal. Further, he acknowledges that
there really is no such product as one hundred percent (100%) anthracite coal from a technical
standpoint. (Tr. 246-249.)

In 2004, Boylan was part of the fact-finding committee. He, however, did not know
whether a jurisdictional determination concerning Respondent's Carbon Plant had been made.
He acknowledged that the Respondent does not extract coal and is not affiliated with any mines
that do. He also acknowledged that the Respondent is actually a customer of preparation plants
and breakers in District 1. (Tr. 251, 255-257.)
Thomas Yencho: Y encho is the field office supervisor for MSHA in Shamokin, Pennsylvania.
In his position, he leads inspectors in their inspection of approximately 120 surface mines,
roughly half of which are strip mines and the other half are facilities. He does .field activity
reviews and company activities every.six months with each inspector. He must personally visit
every mine at least once annually. Prior to his position with MSHA, he worked for Jeddo
Highland Coal Company for fourteen (14) years and for Reading Anthracite Coal Company for
ten (10) years. He has never worked at a coal preparation plant, nor has he ever inspected the
Respondent's facility. {Tr. 258-260.)
Yencho became the field office supervisor in 2004. He discovered the Respondent's
intention to c~allenge MSHAjurisdiction from the District11 in2009. During this call, he also
learned that they were to visit the site to conduct fact-finding; he testified that in preparation for
this visit, he asked Bierman to create a PowerPoint concerning the flow of coal at the facility.
Rather than have Bierman make a special visit to the facility to obtain the information, he had
him create it from memory as a way to inform the solicitors when they arrived for the
jurisdictional visit. (Tr. 260-261.)
During the visit, Y encho testified that they met in the mining office where nine or ten
vials of coal and non-coal materials were demonstrated. They company informed them of what
was in some of the vials but refused, for proprietary reasons to explain the makeup of others.
Then, they toured the stockpiles, where Y encho testified that he saw No. 4 and No. 5 coal, as
well as graphite, and possibly metallurgical or petroleum coke. Next, they toured the inside of
the building and finished by looking at the outside dryer and the area where the materials are
bagged. He testified that while they were at the facility, he believed that they were processing
11

Although it was not further clarified at hearing, it is assumed that this refers to District

1.
33 FMSHRCPage 735

either No. 4 or No. 5 coal and he did not see any mixing activities being conducted. The owners
mostly talked about mixing activities as they approached the graphite pellet mill, but did talk
about mixing coal with the non-coal materials as well. (Tr. 262-263, 322-323.)
While accompanying inspectors in previous inspections, Yencho observed coal being
loaded in the hopper of the top dryer. He admitted, however, that he did not "stand there and
observe [the employee] for hours and hours and hours." In his opinion, he testified that the
Respondent's drying and screening of coal would place them under the jurisdiction of MSHA.
(Tr. 264-265.)
Yencho also testified that no offer was made to the Respondent following the fact-finding
committee's jurisdictional determinations in 2004. This contradicted his past deposition
testimony that he had personally went to the Respondent and made an offer. However, upon
checking his time and activity records for the time in question, he discovered that he was at the
Mine Academy. Further, he testified that no "offer" was made. He explained that he had no
authority to make an offer and that he was trying to clear that up in the second day of his
deposition by explaining that the letter writing process would have to be followed and that
"offer" was a poor choice of words. (Tr. 266-268, 274, 280, 283, 290.)
When asked about the lack of detail in the Respondent's report prepared by inspectors
Kathleen Radzavicz and Joe Fisher, Y encho testified that he trusted what they had prepared. He
explained that they may not have seen any of the Respondent's non-coal-related manufacturing
activities, and therefore, could not have documented them in their report. He also testified that
the reports were then sent to the District, but he did.not know their fate from that point forward.
He could only assume that they were given consideration. (Tr. 296, 334, 353.)

William Sparvieri: Sparvieri was the former assistant district manager for MSHA in District L
Also, briefly in 2004, approximately two or three months, he was the acting district manager in
that District. When the issue of jurisdiction first arose in 2004, he organized the fact finding
committee to visit-each operator and determine what activities were taking place. At the time
that the committee was established, no decision had been made as to whether MSHA should be
exercising jurisdiction over other facilities, nor did Sparvieri have the authority to release the
Respondent, or any other facility, from MSHAjurisdiction. (Tr. 368-369.)
Although Sparvieri did not visit the Carbon Plant with the fact finding committee, the
result of the facts gathered were that it met the criteria of being classified as a mine. He admitted
that the report does not reflect any of the manufacturing activities that take place on the premises;
however, he said that this would have no reflection on the issue of jurisdiction because of the
amount of activities performed that fall under the Act. This result was then sent to the district
manager, but, as far as Sparvieri knows, was never forwarded to the Office of the Solicitor or the
MSHA administration office. Neither his signature nor Yencho's appear on the report for the
Carbon Plant. (Tr. 370, 373-374.)

33 FMSHRC Page 736

When questioned why different inspectors were sent to Keystone Filler Company12 than
the Carbon Plant, Sparvieri explained that time constraints forced them to add inspectors to the
fact-finding committee. Boylan and Farrell were not originally part of the fact finding
committee, but had to later be added. Radzavicz and Fisher were the two inspectors who were
assigned to visit all of the facilities when the fact-finding committee began its jurisdictional
inquiry. (Tr. 376.)

Donald Rosini: Donald Rosini is the owner and president of Respondent with fifty percent
(50%) ownership. The Carbon Plant was previously under the ownership of his father and uncle.
Donald Rosini attended the University of Pennsylvania and received his Bachelor's degree in
economics from the Wharton School where he double majored in finance and management.
After school, he traded derivatives in Philadelphia for Susquehanna International Group and later
traded currency derivatives in Tokyo, Japan for ten years with Chase Manhattan Bank and Bank
of New York. At the time of the financial meltdown in 2008, he was trading bonds back in
Philadelphia for Susquehanna. At that time, he returned home and joined the Respondent. (Tr.
381-383.)
Prior to becoming a derivative trader, Donald Rosini testified that he had never actually
worked for the Respondent, but he would assist his father in doing financial projections and
engage in discussions about the business in an unpaid capacity. Now, neither his father nor his
uncle are active in the management of the business, but Donald Rosini explained that they are
still on the payroll as consultants and that he and his cousin talk to the former owners everyday or
nearly everyday. (Tr. 383.)
Under the former ownership, both men were active in all aspects of the company. Under
this ownership, Donald Rosini testified that there is somewhat more of a division of fabor. He
describes himself as the Chief Financial Officer (CFO). He looks at the company's assets and
resources and, attempts to determine how they can most efficiently be employed. He further
engages in financial projections to determine which processes need to be carried out more
efficiently and in what direction the company should further go. William Rosini, his cousin and
co-owner, was more active in the production specifications of each product and the sale of the
finished product. (Tr. 384.)
Donald Rosini testified that, in early 2009, he decided to challenge MSHAjurisdiction.
He said that decision was made based upon projections for the future of their company. He
testified that they are expanding and the processes now being employed focus much more on the
manufacturing of items, such as graphite paint, than the activities that are found under the Act.
Because of these changes, he proffered that OSHA seemed to be the more appropriate
jurisdiction. As evidence of this;, he testified that there are no risks of silicosis and there are no
12

Keystone Filler Company was released from MSHA jurisdiction in 2004, after the factfinding committee concluded that it would more appropriately be under OSHA jurisdiction and,
based on the committees report, either MSHA administration or the Office of the Solicitor, in
fact, released them from MSHA jurisdiction.
33 FMSHRC Page 737

steep grades at the facility, which are two issues that MSHA works with quite a bit. Further, his
employees complain that MSHA training seems like a waste of time to them because many of the
issues are irrelevant to the Carbon Plant. When asked if he talked to his father prior to the
jurisdictional challenge, he testified that he had spoken to him and his father said that he had
been afraid of MSHA retaliation if he challenged its jurisdiction. {Tr. 386-388.)
Leading up to the Respondent's jurisdictional challenge, Donald Rosini talked to a
number of people, including individuals at Keystone Filler and Kimmel. From these discussions,
he was referred to the lawyer who wrote to MSHA for both requesting a release from
jurisdiction. Donald Rosini testified that the letter was written and a meeting was to be arranged.
However, MSHA was unable to produce a copy of the letter from its records and the Respondent
claimed that it never received a copy of the letter for which it paid. Under cross-examination, he
admitted that he does not ever remember seeing the letter at all and, in fact, he is relying on a
confirmation email sent from the attorney stating that the challenge letter had been sent.
Respondent was presented with a letter from its present counsel explaining that the request for
jurisdiction transfer had been denied. The denial was based upon the number of activities that
constituted activities under the Act. {Tr. 389-390, 394-395, 479.)
When describing the products offered by the Respondent, Donald Rosini testified that
approximately twenty percent (20%) are straight coal, seventy percent (70%) are a coal blentl,
and the remaining ten percent (10%) are comprised entirely of non-mined materials. He further.
stated that their product list is constantly in flux because William Rosini is constantly making up
new products depending on the specifications needed by the customers. ln response to the
testimony that MSHA employees had never seen coal being blended in the dryers, Donald Rosini
said that he was certain that they had seen it but were completely unaware of it; although, he
opjned that they should have realized that blending was taking place. (Tr. 408, 412-4l3, 416417.)
In response to Petrulich's interpretation of the emails prior to the MSHA business,
Donald Rosini testified that the Respondent was attempting to give MSHA the complete view of
its business activities. The labeling of the vials was done to ensure that the visitors would get the
full scope of the blending activities. He did not address the suspect wording of the email. When
asked about the email that he sent suggesting that they could cut a sack of material on the
mystery bank, he testified that he did not know his intention of the email and that no action was
taken on the suggestion. (Tr. 435-437, 441.)
Under cross-examination, Donald Rosini admitted that he had never heard of the offer to
opt out of MSHA jurisdiction until the deposition of Y encho. It was at this time that he asked his
father about it. William Rosini's father also said that no offer had been made to them when
asked. He also acknowledged that while he felt that the Carbon Plant was being retaliated
against for its challenging jurisdiction, he had no knowledge that fine amounts had risen, in
general, by the passage of the Miner Act. (Tr. 447-448, 469.)

33 FMSHRC Page 738

David Pfleegor: Pfleegor is the president of Keystone Filler and Manufacturing Company in
Muncy, Pennsylvania, which is a competitor of the Respondent's Carbon Plant. He testified that
it processes carbon into mineral fillers and carbon products for the steel industry. These products
are essentially the same as those produced by the Respondent. (Tr. 484-485.)
Pfleegor testified that, in 2004, inspector Paul Sargent came to the plant to alert them that
they were no longer going to be under MSHA jurisdiction. This inspector also said that they
would be releasing ''the rest of the companies, Shamokin Filler, Leopold, and named numerous
companies that they were probably going to have to release." He said that the inspector
explained that the Respondent would be released because it was the same type of operation as
Keystone and Keystone had just been released. However, Pfleegor admitted that he had no idea
whether Sargent had any authority to make these types of jurisdictional decisions or whether he
was just assuming. Further, he backed off of his certain testimony by saying that Sargent said the
other facilities were "probably going to be released." (Tr. 486-488.)

Kathleen Radzavicz: Radzavicz is a conference and litigation representative for MSHA, District
1, Coal, in the Wilkes-Barre office. Prior to this role, she was a coal mine inspector health
specialist, but has never actually worked in a mine. She was chosen as part of the fact finding
committee because. she handles all problems dealing with repeat test sampling because of testing
disclosures. Along with Joe Fisher, she was assigned by Sparvieri to visit the Respondent's
Carbon Plant and write the fact;..finding committee report. Although she wa.~ not present during.
the visit to Keystone, she compiled the information and wrote the report for that facility as well.
(Tr. 495-497, 499, 501.)
The report on the Carbon Plant was to be written to detail the on-site processes,
specifically focusing on the flow of coal. Although graphite was mentioned in the report written,
none of the other materials on-site were mentioned; there was also no mention of othey processes
that occur on-;site. She said that she did not see any other processes being conducted while she
was at the facility. Radzavicz testified that she realized that the report was less detailed. She
admitted that she did not take any samples at the Carbon Plant. But she also testified that she did
not know that samples had been taken at Keystone until she wrote the report, after her
jurisdiction visit to the Carbon Plant. During her visit to the Carbon Plant, she was given the
impression that the Respondent was a custom coal preparation facility. Further, the
Respondent's owners would not give permission for the inspectors to take pictures of the facility.
(Tr. 497, 500-502, 509-510.)
Radzavicz testified that she did not know what happened to the report after she gave it to
her supervisor, Jack Kuzar. She was never given feedback on the report and did not know what
the ultimate purpose behind the report was. She testified that she realized that the jurisdictional
visit was conducted in response to Keystone's jurisdictional challenge, but she was only told to
observe the day-to-day operation at the Carbon Plant with particular interest in the coal flow. No
one at the Carbon Plant told her that coal was being mixed with other materials while she was
conducting the visit, even though she testified that she spoken to someone in management. (Tr.
33 FMSHRC Page 739

512-514, 518, 521.)

William Rosini: William Rosini is Respondent's owner, along with Donald Rosini, chairman,
and secretary/treasurer. He owns twenty-five percent (25%) of the company, but speaks for his
sister's twenty-five percent (25%) as well. He attended Bloomberg University and received
degrees in psychology and sociology with a minor in business, but he testified that he has worked
for the Respondent nearly all of his life. (Tr. 523.)
William Rosini testified to the nature of the business by saying, "We manufacture all
types of carbons. It involves getting materials from across the United States, is mostly what I do,
trying to find scrap products, find anthracite coal, petroleum coke, metallurgical coke. We buy
some carbon black. We do a number of things with it, mostly drying and- We do whatever the
customer actually wants, to be honest with you." He then testified that the company is engaged
in the same activities that it was thirty (30) years ago, with no substantial changes in equipment,
products, or customers. The Respondent does not have a mine permit in the state of
Pennsylvania. (Tr. 524-526.)
William Rosini further testified that he spoke with Ricky Rollins, who gave the signed
statement to Boylan that the Shamokin 585 was 100% anthracite coal. He said that Rollins
avoided phone calls four or five times and then eventually just signed the prepared statement.
. Also, he said that Rollins was aware that the products were not really 100% anthracite coal from
·the conversations they had. both prior to and after the email. As far as Petrulich was concerned,
although he was hired as a lab technician to perform quality control, William Rossini dismissed
his position as basically a gofer, who was there more or less for employee morale. He testified
that Petrulich was not a production manager and would not have directed the product
formulation, because he did not have access to the customer specifications. (Tr. 530-532, 534,
536-537.)

In explaining the emails before the MSHA visit, William Rosini testified that Donald
Rosini had not been at the stockpiles for a while and wanted to make sure that all of the materials
used in the products were accurately presented. William Rosini asserted that Donald Rosini was
not attempting to misrepresent the facility or trying to trick MSHA inspectors. William Rosini
said that his intent with email stating that he would label all the materials was written because he
did not believe that anyone else. would do what he was asking. He explained that he did not want
to be running straight coal because he knew that MSHA was under the impression that they were
a mine, but that they ended up running straight coal that day anyway. so the email was pointless.
Further, he explained that the email calling for the possible cutting of a bag of material on the
mystery bank because he wanted to demonstrate they really do mix metallurgical coke with
anthracite coal on a regular basis. Finally, he explained the email representing Shamokin B-593
as 100% anthracite coal as either "sales" speak or a typographical error. (Tr. 539-540, 543-545,
547-548, 551, 571.)
Under cross-examination, William Rosini admitted that many of the carbonaceous

33 FMSHRC Page 740

products they have listed on-site are not mixed with the anthracite coal unless there is a specific
need for it. He also said that metallurgical coke and coal are the only two materials stockpiled at
the top of the facility at this time. Further, these are the two materials that are most frequently
mixed. When asked on direct examination about some other materials, limestone, glycerine, etc.,
William Rosini testified that they were kept at the facility and used. However, under crossexamination, he admitted that their use was fairly rare and only for particular purposes. When
asked about a 5/16th inch screen, he said that the facility does not have this size screen now and
that he had never heard his father talk about one, but he was not sure if that sized screen was at
the facility before he started working there. He did say that he would not have been sure what
use his father and uncle would have had for it. (Tr. 541-543, 550, 558, 563-566, 582-583.)
Lawrence Gazdick: Gazdick was a maintenance foreman with Jeddo Highland Coal Company
for fourteen years. For the next eight years, he designed, built, and operated preparation plants
for the same Company. He later worked for Pennsylvania Power & Light Company were he was
a design draftsman and his specialty was preparation of coal to feed the generating stations and
generating station design. In 1991, he was hired as a surface inspector for MSHA. Over his
sixteen years of experience in MSHA he was promoted to underground inspector, surface
specialist, and eventually to the position of supervisor of underground mines at the Pottsville
field office. At one point, he held the position of senior special investigator, staff assistant to the
district manager in District 1, who was Jack Kuzar. Gazdick is currently working as a consultant
to coal industry. (Tr. 586-589.)

During his time as senior special investigator, the fact finding committee to detennine the
jurisdiction of the bagging facilities was assembled. Gazdick testified that the Respondent was
under the scrutiny of the fact finding committee and, further, he had been to the Carbon Plant
both in his capacity as an inspector and as an assistant to Jack Kuzar in performing "walk and
talk" safety talks at the facilit'-;. He also observed the facility prior to writing his expert report.
He testified tl~at the facility looks exactly as it did when he inspected for the first time. The
equipment and operations were identical to 2004. (Tr. 589, 594, 596-597.)
He testified that, in his experience the Respondent's Carbon Plant is not similar to the
coal preparation plants that he has worked for and designed in the past The Respondent has no
equivalent operation to those that would process extracted coal. They do not deal in several sizes
of coal and they do not wash it They also have no equipment on site allowing them to change
the size or the quality of the coal like a normal breaker would. They can only buy coal that has
already been prepared by another facility. (Tr. 589.)
He testified that the Respondent does screen the coal as it enters the dryer. This is to
prevent damage to the equipment by pieces of coal that are too large. He said that this quarterinch screening could be considered incidental to jurisdiction under the Act. He further testified
that the drying, storing, and loading of coal can also be considered incidental to jurisdiction. He
was concerned that the PowerPoint by Bierman mentioned media filter, which is a process that is
covered under the Act and could have erroneously caused members of the fact finding committee
33 FMSHRC Page 741

to conclude that the Carbon Plant should be retained under MSHA jurisdiction. ht his expert
opinion, the Plant should be under OSHA jurisdiction because the regulation under OSHA are a
better fit for this type of facility and would enhance the safety and training of its employees. (Tr.
603-607, 610.)
Under cross-examination, Gazdick admitted that the Act does cover custom coal
facilities, but he testified that coal is only one of many products that they used. However, he
acknowledged that it would also depend upon the processes that follow as well. He did not take
any samples of the products at the Carbon Plant. Although Gazdick recognizes that the
Respondent's process does involve "changing the moisture content of the coal," he does not refer
to that process as drying. Further, he did not know of any case law, provision in the MOU, or
program policy letters that concluded that bagging facilities should not be covered under MSHA,
even if they are just bagging materials. Finally, he admitted that he is currently involved in the
litigation an EEO complaint that he filed against MSHA and is appealing in federal District
Court after an administrative law judge ruled against him. (Tr. 627, 632-633, 636-637, 639-640.)

ISSUES
The general issue before this Court is whether Respondent's Carbon Plant facility is
subject to MSHA jurisdiction based on wheiher the Carbon Plant was/is a "coal or other mine"
within the meaning of Section 3(h)(l)(c) of the Mine Act, and'or whether the Carbon Plant had
engaged/is engaging in the "work of preparing the coal" within .the meaning of Section 3(h)(2)(i)
of the Act.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. Alleeed past MSHA jurisdictional determination
Before addressing the specific jurisdictional questions of whether the Carbon Plant
constitutes a "coal or other mine" and/or whether it is engaging in the "work of preparing coal,"
this Court will address the evidentiary/factual issue of whether MSHA had in fact determined the
Carbon Plant should be given the option to go under OSHA and/or had conveyed such to
Respondent.
Respondent has variously argued that such a jurisdictional determination had taken place, ·
that such a determination should be afforded deference, and that MSHA/the Secretary's failure to
effectuate said determination constituted arbitrary and capricious conduct. This Court accepts as a general proposition - that a past MSHA "determination" would be a legitimate consideration
in deciding a facility's jurisdictional status. However, this Court finds it unnecessary to address
any of Respondent's associated legal arguments in that such are posited upon a critical factual
assumption - that MSHA had in fact previously determined that it should no longer exercise
jurisdiction over the Carbon Plant. After careful review of the record, including an assessment of

33 FMSHRC Page 742

witness credibility~ this Court finds that Respondent has failed to carry its burden of proof as to
this factual claim.
It is uncontroverted that MSHA had exercised jurisdiction over the Carbon Plant for
decades, and indeed, for generations ofRosini ownership. (Ex. G-7.) At hearing, the Secretary
maintained that no specific determinations had ever been made that the Carbon Plant should be
excluded from MSHAjurisdiction, nor had any offer to opt out ofMSHAjurisdiction ever been
extended to Respondent {Tr. 39-40.) No written proof was offered by Respondent to support its
contention. 13 The evidence presented by Respondent at hearing was sparse and contradictory.
Neither of the previous owners were called to testify, nor were written statements or depositions
by such offered into evidence. Given Donald Rossini's testimony that the prior owners were still
on the payroll, were still consultants, and still continued to discuss the "business [... ] everyday''
{Tr. at 383.), the Respondent's failure to produce the past owners at hearing is puzzling to this
Court. (See, however, infra one possible explanation for Respondent's failure.)
At hearing Thomas Y encho, the field office supervisor for MSHA in Shamokin,
Pennsylvania, testified that no offers to leave MSHA jurisdiction had ever been made to
Respondent in 2004. {Tr. 265-267.) Yencho explained that he had been incorrect in past
recollections at a prior deposition. After reflection and after review of his ''T and A" records,
Yencho concluded that he could not have gone to Respondent's facility to make such an offer
during the time in question. Further, he would not have had in any case the authority to do so.
(Tr. 268-280.)
Despite the Respondent's vigorous cross-examination, alleged discovery surprise and _
attempted impeachment of Yencho, this Court found Y encho credible. Inter alia, this Court
reached its credibility assessment in considering the testimony of one of Respondent's principal
witnesses, Donald Rosini. When questioned as to whether either of the prior owners, the senior
Rosini brothe:r;, had reported that such a critical jurisdictional offer ever was made, Donald
Rosini admitted that both said it ')lever happened." (Tr. 447-448.) Thus, both senior owners'
recollections contradicted the assertions ofRespondent and support and corroborate Yencho's
hearing testimony.
Further at hearing, Donald Rosini raised for the first time an assertion that prior owners
had failed to challenge jurisdiction in the past due to fears of retaliation by MSHA (Tr. at 387388). This Court finds no credible evidence in the record supporting such an allegation. That
MSHA employees would somehow become personally enraged over Respondent's questioning
ofitsjurisdiction status strains this Court's credulity. 14 Mr. Rosini's further assertion that an
13

As announced by this Court at hearing, an in camera review of the memoranda that was
subject of Respondent's motion to compel contained no specific reference to the Carbon Plant
(See Tr. at 24-25).
14
Donald Rosini's testimony was further undermined by the Respondent's failure to
produce a copy of a letter contesting jurisdiction allegedly written by counsel retained by the
Respondent. That Mr. Rosini, a Wharton school graduate and owner and president of Shamokin
33 FMSHRC Page 743

increase in citations after the Respondent's jurisdictional challenge was proof ofMSHA's
animus is rejected by this Court as a fallacious "post ergo propter hoc" (after this, therefore
because of this) proposition.
As agreed by the parties, the validity of the underlying citations/contests/penalty petitions
would not be considered by this Court at this time. Without a full hearing regarding such, this
Court cannot assign sinister motivations to MSHA based upon a general bald accusation of
malevolence.
Respondent's reliance upon the speculations of Ronald Farrell as to the import of
conversations on which he had eavesdropped to prove its factual contention calls for this Court to
essentially speculate on speculation.
The proof presented by Respondent is simply too thin a layer of evidentiary ice for this
Court to base a finding of fact. Therefore, tliis Court, as trier-of-fact, finds that the Respondent
failed to establish that any specific jurisdictional determination was ever made by MSHA or offer
to opt out of MSHA ever conveyed to the Respondent.

II. Jurisdictional Analysis
The Respondent maintains that the Carbon Plant is a "sophisticated manufacturer of
carbon products" that properly should be under OSHA jurisdiction. The Secretary, however,
maintains that the Carbon Plant may reasonably be construed as a "custom coal preparation
facility" within the meaning of the Mine Act.
This Court notes that when Congress passed the Mine Act, the report of the Senate
committee on Human Resources stated that "it is the Conni1ittee's.intention that what is
considered tq ·be a mine and to be regulated under this Act shall be give the broadest possible
interpretation and it is the intent of this committee that doubts be resolved in favor of inclusion of
a facility within the coverage of the Act." (S. Rep. No. 95-181at14 (1977, reprinted in Senate
subcomm. on Labor, comm. on Human Res., Legislative History of the Federal Mine Safety and
Health Act of 1977 at 602 (1978))(emphasis added). Thus, any jurisdiction search must use this
Congressional mandate as its north star.
A further navigational aid in finding jurisdiction is the lnteragency Agreement between
the Mine Safety and Health Administrative, U.S. Department of Labor and the Occupational
Safety and Health Administration, U.S. Department of Labor (March 29, 1979). Like the Mine
Act, this agreement is inclusive rather than exclusive in considering MSHA' s jurisdiction, again
providing that doubts regarding MSHA/OSHAjurisdiction be resolved in favor of Mine Act
coverage. (See MOU at §A.3, Authority and Principle and §B.5, Clarification of Authority; see
also Nelson Quarries Inc., 2010 WL 4362432 FMSHRC (Oct. 2010) (ALJ)).
Filler Company, did not have even a copy of a letter for which an attorney charged $7,500
likewise strains credulity (Tr. 389-390).
3J FMSHRC Page 744

Given the "broadest possible interpretation" to what constitutes "a coal or other mine"
and what constitutes "work of preparing coal" and the Congressional and interagency directives
to resolve doubts in favor of Mine Act coverage, this Court is constrained to find that the Carbon
Plant falls within the "sweeping" definition of a mine engaged in the work of preparing coal, and
thus, should remain subject to MSHAjurisdiction. (See also Secretary ofLabor v. Sturdt's Ferry
Preparation Company, 602 F.2d 589, 592(July1979).
This Court also reaches this decision despite factually accepting that the Carbon Plant
uses non-mined materials in some of its operations and recognizing that "every company whose
business brings it into contact with minerals is not to be classified as a mine within the meaning
of section 3(h)." Secretary ofLabor v. Carolina Stalite Company, 734 F.2d 1547, 1551 (May
1984). Further, the Court agrees with the Secretary's position that the testified-to activities at the
Carbon Plant fall within the ambit of"preparing the coal," though again recognizing that the
nature of the activities performed at the plant must be considered along with the activities listed
in section 3(h){2)(i) of the Act. (See also Mineral Coal Sales, Inc., 7 FMSHRC 615, 619 (May
1985). This Court specifically finds that the Secretary, by a preponderance of the evidence,
proved that such activities as storing, loading, sizing ,and drying of (anthracite) coal took place at
Respondent's facility and that the overall purpose of Respondent's operation was that of a
custom (coal) preparation facility as broadly defined in section 3 of the Act.
At hearing, Inspector Bierman testified that the anthracite coal was delivered and stored
in a "lay down" area on the north side of the Carbon Plant. (Tr. 49, Ex. 2.) The coal wa8 prepared
by being placed in a feed hopper and then dried in the outdoor rotary dryer. The coal was then
screened to remove over-sized pieces. (Tr. 49-51, 164, Ex. 2.) Following this preparation, coal is
stored at the Carbon Plant. (Tr. 51, Ex. 2.) Coal is then bagged, loaded, and ·shipped for bulk sale
in trucks and rail cars. (Tr. 52-53, Ex. 2.) Ronald Farrell testified that he had inspected the
Carbon Plant in March 2010, and had questioned a ruiner regarding the operation cf an outside
dryer. Reading from his notes t3.ken at the scene, hi.spector FarreUindicated that, according to the
miner, coal from several sources was fed to the dryer, then up a bucket elevator, sized, then went
«to the proper phase." All the products made were coal. (Tr. 168-169.) At hearing Thomas
Y encho testified that while at the Carbon Plant, he observed a bucket of coal being placed into
the hopper of the top dryer. (Tr. 264.)
Despite qualifications, both Donald and William Rosini essentially conceded that drying
took place at the Carbon Plant. (See Tr. 403 (Donald Rosini described the operation of the rotary
dryer); See Tr. 521 (William Rosini stated ''we do a number of things ... mostly drying and we
do whatever the customer actually wants.")). Although Respondent's own expert also conceded
the Carbon Plant "lowered" or "changed" the moisture contest of coal {Tr. 616, 637), his
contentions that such an activity did not constitute drying were found by this Court not to be
credible. It is uncontroverted that the Carbon Plant loads stored coal. This Court accepts
Respondent's arguments that many facilities-hospitals, schools, steel mills, railroads and
shipyards, foundries, private residences - store and load coal and would not reasonably be
subject to MSHA. However, the nature of operations at such medical, educational, transportation,

33 FMSHRC Page 745

and residential facilities, is markedly different from that of the Carbon Plant.
Much of Respondent's case, whether by pleading, testimony, cross-examination,
argument or brief, has been directed to establishing that the Carbon Plant also utilizes non-mined
materials and engages in manufacturing processes involving chemicals or non-coal carbons. This
argument, however, misses the critical jurisdictional point of whether those substantial plant
activities that do involve anthracite coal arguably bring the Carbon Plant within MSHA
jurisdiction. 15
The record in toto clearly establishes that a substantial portion of the material used by
Respondent was anthracite coal. 16 The record further clearly reveals that Respondent engaged in
activities whose nature and function arguably constituted the work of preparing the coal.
This Court specifically rejects the proposition that a claim of jurisdiction should be solely
based upon the amount of coal used. 17 Further, this Court has found no case or statutory law that
mandates the exercise of MSHA or OSHA jurisdiction purely based upon the percentage of
mined or non-mined materials used or, indeed, based upon the percentage of manufacturing
versus mining activities at a facility. However, this Court is persuaded that the extensive use of
coal at a facility and the number and volume of coal-related activities would be legitimate factors
in determining Mine Act coverage. Further, to the extent that Respondent has suggested that
Carbon PJant' s operations only involve a de minimis use of anthracite coal or de minimis
involvement of cocJ-related activities, this Court rejects such as being belied by the record in
toto.
This Court agrees with Respondent that a ''per se" analysis should not be utilized in
determining jurisdiction, but rather a "functional" analysis. (A functional analysis is one that
determines whether the Mine Act covers a facility based upon the nature of the functions·at the
facility. RNS. Services, Inc. v. FMSHRC, 115 F.3d 182, 184 (3d Cir. 1977). However, in. applying
a functional analysis to the subject facility, this Court finds that the Carbon Plant is a custom coal
preparation facility that stores, sizes, dries and loads coal to make it suitable for subsequent
industrial use.
The Carbon Plant's operation/activities, as argued by the Secretary, closely resemble that
of facilities found to be under MSHAjurisdiction. See inter alia: Alexander Bros., Inc., 4
FMSHRC 541 ( 1981) in which the Commission sustained Mine Act coverage over a coal
reclamation facility; Air Products & Chemicals, Inc., 15 FMSHRC 2428 (Dec. 1993) ajf'd 37
15

This is especially so given, inter alia, the Congressional concern as enunciated in
section 2 of the Act that ''the first priority and concern of all in the coal or other mine industry
must be the health and safety of its most precious resource - the miner" and given the clear
Congressional mandate and interagency agreement directive for MSHA inclusion.
16
The credibility of the Respondent's assertions otherwise will be discussed infra.
17
See Respondent's argument at footnote 9 of its posthearing brief that MSHA implicitly
suggests such.
33 FMSHRC Page 746

F.3d 1487 (3d Cir. 1994) where the Commission found that the Mine Actcovered the further
preparation of coal refuse at a cogeneration plant before being used as fuel at the plant; RNS
Services, 115 F.3d 188 (3d Cir. 1994) affirming Air Products. This Court further accepts as
reasonable the Secretary's view that screening of coal at the Carbon Plant is a form of "sizing."
(See, i.e., Tr. 76-77 for Inspector Bierman testimony regarding such; see also Bureau of Mines,
U.S. Dept. of Interior, A Dictionazy of Mining, Mineral and Related Terms, 226, 976, noting that
"screening" may be used as a synonym for "sizing.")

As to witness credib!lity and this Court's duty to assess such, this Court found the
Respondent's chief witnesses to have offered contradictory, inconsistent, and suspect testimony.
The Court specifically finds that there has been an attempt by the owners to obstruct the amount
of coal used by the Carbon Plant, the percentage of coal versus non-mined materials, and the
actual nature and extent of its coal versus non-coal operations.
At hearing, Donald Rosini testified that anthraeite coal comprised only 20% of the
products prepared at the Carbon Plant and that 70% of Respondent's products were some form of
a coal and non-coal mixture. (Tr. 408.) However, an examination of the Shamokin Product Table
(Ex. J-2) reveals that the tonnage of anthracite coal, in terms of actual product sold, was much
higher than 20%. For example, over 6,000 tons of Respondent's product, "carb-o-cite," made of
100% anthracite coal, was sold in 2009, as compared to only a few tons of multiple products
containing no coal or coal mixtures. On cross-examination, William Rosini expressed smprise
regarding the "significantly higher" amounts of coal product versus non-coal product purchased
in 2009, asserting such as "atypical." (Tr. 554-556.)
Emails from Respondent to customers also indicate higher percentages of anthracite coal
usage than testified to. At hearing, the Secretary also presented a sworn declaration under
penalty of perjury from another customer of Respondent, Rocky Rollins, who indicated thatthe
Shamokin 585 product used in 2009 and 2010 was 100% anthracite coal (Ex. G-1) which, again,
conflicted with the product mixture indicated by Shamokin in its product table. (Ex. J-2.) 18
Williams Rosini's attempts to explain away this discrepancy were found by this Court to be
unpersuasive. (see inter alia Tr. 531-535.)
At hearing, Donald Rosini gave equivocal testimony as to his actual knowledge of the
Carbon Plant's operations since 2004. At one point he stated that he did not know if there had
been any changes in customer base, what customers were demanding, and the ratio of straight
coal to blended and non-coal product at the Carbon Plant. (Tr. 411.) He further testified that he
had not spoken with his father in detail about the plant's products. (Tr. 424.) On the other hand,
he asserted that MSHA had painted a distorted picture of the plant's products/operations. (Tr.
424-425.)
18

This hearsay statement standing alone would be assigned little weight by this Court.
But, when considered in the context of the other evidence of record, discussed intra, indicating
attempts by Respondent to conceal the true nature of its operations, said statement supported this
Court's findings oflack of Respondent's credibility.
33 FMSHRC Page 747

This Court noted that neither inspector Bierman or Farrell observed any mixing of coal
with non-coal materials at the plant, such testimony being supported by the plant production
reports which William Rosini alleged "surprise" over. The only bid sheets Respondent provided
for it sales were for anthracite coal. (Tr. 567-568, Ex. G-5.) The Respondent's emails in
anticipation of an MSHA inspection, again, can reasonably be construed as attempts to obfuscate
the facility's actual operations.
This Court found William Rosini's descriptions of Respondent's past production manager
as a "gofer," whose work primarily involved boosting morale on second shift to be unconvincing.
This Court also found the Respondent's expert witness, Lawrence Gazdick, to be an unreliable,
uninformed, and uncredible witness. 19 For example, Gazdick opined that the Occupational Safety
and Health Act was better able to ensure the safety of Carbon Plant's employees than the Mine
Act. However, on cross-examination, Gazdick conceded he did not know what OSHA guidelines
and training were. (Tr. 638-639.)
Contrary to Respondent's arguments, the Carbon Plant's operation meets the definition of
work of preparing the coal - a process usually performed by coal preparation facilities to make
coal suitable for a particular use or to meet market specifications. Oliver M Elam, Jr., Company,
4 FMSHRC 5, 8 (Jan. 1982). This Court essentially agrees with the rationale of the Government
contained in exhibit G-7 that Carbon Plant is a surface facility processing coal to customer's.
specifications and for particular uses which meet the functional requirement of section 3(i) and
the Elam analysis. See also Commission's statement at 4 FMSHRC 5, 7 (1982): "[A]s used in
section 3(h) and as defined in section 3(i), ''work of preparing coal" connotes a process, usually
performed by the mine operator engaged in the extraction of the coal or by custom preparation

facilities, undertaken to make coal suitable for a particular use or to meet market
specifications. [emphasis suppliedl"
This Court further accepts the Secretarj's position that the activities at the Carbon Plant
can properly and reasonably be interpreted as "milling" pursuant to Interagency Agreement
provisions and pertinent case law. see In re Kaiser Aluminum and Chemical Co., 214 F.3d 586,
591 (5th Cir. 2000) (Congress expressly delegates to the Secretary ... authority to determine
what constitutes mineral milling). Indeed to the extent that there is any ambiguity or silence in
the Mine Act and MOU terms discussed intra, this Court has found the Secretary's interpretation
to be permissibly reasonably ones. 20
19

Although this Court did deny the Secretary's motion to exclude the expert witness
testimony of Mr. Gazdick, this Court did find some merit in the Secretary's argument that
Gazdick's testimony should be barred to the extent he sought to opine on the ultimate issue of
jurisdic~ion. (See also Secretary's Motion in Limine to Exclude Expert Witness Testimony.)
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. Defense 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. Chevron, 467 U.S. at 842-43. Accord Local
33FMSHRC Page 748

The Respondent garnered testimony at hearing stating that the storing, drying, screening,
and loading coal can all individually be considered incidental to process being performed and,
thus, fall outside the purview ofMSHA. While this may be true, these processes cannot be
viewed in isolation of one another. Mineral Coal Sales, Inc., 7 FMSHRC at 620. "fu examining
the 'nature of the operation' performing work activities listed in Section 3(i), the operations
taking place at a single site must be viewed as a collective whole." Id. at 620-21. When viewed
collectively, the Respondent is storing large amounts of coal, screening it to remove impurities
and ensure size quality, drying it, and loading it in bags appropriately sized to be sold in the
stream of commerce. The fact that it is customizing the formulas to meet industry and customer
specifications only strengthens the Secretary's position that the Respondent is operating a custom
coal preparation facility and should, therefore, continue to be covered under MSHA's
jurisdiction.

ORDER
Having found that Shamokin Filler Company is under the jurisdiction of the Mine Safety
and Health Administration, it is ORDERED that the Respondent resume discussions with the
Secretary concerning the underlying citations in this case.

i

ti

Union No. 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C. Cir. 1990). If, however, the statute
is ambiguous or silent on a point in question, a second inquiry, commonly referred to as a
"Chevron II" analysis, is required to determine whether an agency's interpretation of a statute is a
reasonable one. See Chevron, 467 U.S. at 843-44; Thunder Basin, 18 FMSHRC at 584 n.2.
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). The agency's interpretation of
the statute is entitled to affirmance as long as that interpretation is one of the permissible
interpretations the agency could have selected. Chevron, 467 U.S. at 843; Joy Technologies, Inc.
v. Sec'y ofLabor, 99 F.3d 991, 995 (10th Cir. 1996), cert. denied, 520 U.S. 1209 (1997).

33 FMSHRC Page 749

Distribution:
Jessica R. Brown, Esq., Office of the Regional Solicitor, U.S. Department of Labor, The Curtis
Center, Suite 630, 170 S. Independence Mall West, Philadelphia, PA 19106
Adele L. Abrams, Esq., Law Offices of Adele L. Abrams, PC, 4740 Corridor Place, Suite D,
Beltsville, MD 20705

33 FMSHRC Page 750

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

March 11, 2011
CIVIL PENALTY PROCEEDING

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

Docket No. SE 2009-600-M
A.C. No. 40-03012-171882

V.

Mine: Lebanon Quarry & Mill

HOOVER, INC.,
Respondent

DECISION
Appearances:

Matthew Shepherd, Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Petitioner;
G. Sumner R. Bouldin, Bouldin & Bouldin PLC, Murfreesboro,
Tennessee, for Respondent.

Before:

Judge Miller

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 Hoover, Inc. ("Hoover''), 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"). This case involves sn
violations issued by MSHA under section 104(a) of the Mine Act at the Lebanon Quarry & Mill
(the ''mine" or "Lebanon Quarry'') located in Lebanon, Tennessee. The parties presented
testimony and documentary evidence at ahearing held on September 9, 20 I 0, in Nashville,
Tennessee. The parties took post-hearing deposition testimony of Respondent's mine
superintendent on October 26, 2010, and submitted briefs in January 2011.
At the hearing, the parties agreed that four of the six violations had been settled. The
terms of the settlement have been read into the record. As set forth below, the settlement is
approved. Two citations are left for discussion, both of which involve alleged violations of the
same ground control standard.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Hoover, Inc. is the owner and operator of the Lebanon Quarry & Mill, a multi-bench
surface pit rock quarry in Lebanon Tennessee. The mine drills and blasts (i.e., "pulls shots" or

33 FMSHRC Page 751

"shoots") material from a highwall. The material is then loaded onto CAT haul trucks by a front
end loader. The trucks dump the material into a crusher where it is processed, sized, and then
sold on-site.
On October 28, 2008, Vernon Miller, an MSHA inspector in the Franklin field office at
the time, traveled to the mine to conduct a regular inspection. During the course of the
inspection, he issued Citation No. 6084500. Miller returned to the mine on November 13, 2008,
and issued Citation No. 6484505.
Miller was employed by MSHA for approximately 12 years before retiring at the end of
2009. During his time with MSHA he held positions including coal mine inspector,
metaVnonmetal inspector, and metal supervisor. Between 1965 and 1996, he worked for three
different coal companies and held positions including shooter at an underground coal mine,
driller at a surface mine, blaster, machine operator, section foreman, assistant mine manager,
mine manager, and assistant superintendent. He is currently employed at Illinois Eastern
Community College and is teaching mining courses on, among other things, ground control and
accident prevention. Including his time as an educational instructor, Miller has almost 46 years
of experience in the mining industry.

a.

Citation No. 6084500

On October 28, 2008, Inspector Vernon Miller issued Citation No. 6084500 to Hoover
for a violation of section 56.3200 of the Secretary's regulations. The cited standard requires the
following:

Ground conditions that create a hazard to persons shall be taken
down or supported before other work or travel is permitted in the
affected area. Until 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.
30 C.F.R. § 56.3200. The citation described the alleged violative condition as follows:
The South West Pit High wall had loose unconsolidated
materiaVrock. This rock ranged in size from powder to about 4
feet by 5 feet by 3 feet. The loose rock ranged about 150 feet long.
There were overhangs about 3 to 5 feet at the top of the 40 foot
wall the loose was from I 0 feet to 40 feet above the mine floor.
This area had been loaded to the toe. This condition created a
hazard of a miner being struck by falling rock.
Miller determined that a fatal injury was reasonably likely to occur, 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$4,099.00 has been proposed for this violation.

33 FMSHRC Page 752

I.

Brief Summary of Testimony

Inspector Miller testified that during his inspection on October 28, 2008, he was
accompanied by Bobby Lamb, the mine superintendent. (Tr. 16). While conducting the
inspection Miller observed loose material near the top of the southwest bed highwall. (Tr. 18).
The highwall is 40 feet tall and the loose material existed for approximately 150 feet along the
wall. (Tr. 22, 24). According to Miller, the loose material included 8-10 rocks as large as three
to five feet in diameter and up to two feet in thickness that were overhanging up to three to five
feet, cracked, and "ready to fall". (Tr. 19, 22, 23); Sec'y Ex. 5, 6. Powdered material could be
seen under some of the loose material. (Tr. 22). Miller stated that the powdered material is
indicative of a lack of solid strata supporting the loose material above it. {TL 23). Miller
testified that overhanging loose material, given its lack of support, can fall, hit the highwall
below, and bounce outward. (Tr. 24). Miller testified that Sec'y Ex. 7 depicts cracks both
underneath and behind a large overhang. (Tr. 25).
According to Miller, much of the loose material was near the top of the 40 foot highwall.
{Tr. 25). Given the height of the loose materials, the falling object protective structures
("FOPS") on the mine equipment would be less effective in protecting those individuals in the
equipment cabs from falling loose material. (Tr. 25). Moreover, Miller acknowledged that there
have been instances where equipment cabs have been totally crushed by falling material. (Tr.
28). Miller observed equipment tracks which indicated that material had been "loaded to the
toe", i.e., up to the face of the highwall, in the area below the loose material. (Tr. 67) He
determined that a frontend loader had been operated in close proximity to the highwall. {Tr. 19,
25-27). Based on his observations, Miller concluded that the condition of the bighwall created a
hazard to person's working at the mine. (Tr. 27). Specifically, Miller testified that the operators
of the frontend loader and haul trucks were exposed to the hazard of falling loose material
coming through, or crushing, the cab of the equipment. {Tr. 27-28). "'Nhile he did not observe
any foot traffic in the area, a miner walking near the wall would be exposed to ihe hazard. {Tr.
28-29). Miller noted that it wouldn'Uake much to cause the loose material to fall. Bumping the
highwall, inclement weather, or a blast in another area of the mine, could all cause loose material
to fall. (Tr. 39).
Miller testified that, when a hazard exists such as the one described above, the cited
standard requires that a berm, or some other barrier to prevent people from getting in the area, be
constructed until corrective work is completed. (Tr. 29). There was no berm, barricade, or
warning in the area at the time of the inspection. {Tr. 18, 29-30). Based on the above
information, Miller issued Citation No. 6084500.
Miller determined that the violation was reasonably likely to result in a fatal injury due to
the fact that previously shot material had been loaded to the toe under the loose material, the area
had been left unbermed and, if the condition were allowed to exist, someone would be injured.
(Tr. 31 ). He reasoned that, if the area were left unbermed, "anybody could walk out there, [and]
somebody would be seriously hurt, probably killed" given the size and amount of the loose
material. (Tr. 31, 33).

33 FMSHRC Page 753

Miller determined that the operator's negligence was moderate because the violative
condition was "absolutely'' obvious, had existed for several shifts, and was in an area of the pit
that would have been examined during a normal preshift. (Tr. 34). Moreover, while a berm was
built after the citation was issued, the condition still had not been abated when Miller returned
for a later compliance visit. (Tr. 35-36). Miller testified that he recommended to Lamb the use
of CAT pads or miner ripper chains to scale the highwall, however, at some point Lamb notified
Miller that the mine was not going to scale the highwall because they didn't need the material
from the cited area. (Tr. 38). Miller testified that other quarries in the area utilize multiple
methods to scale their highwalls. (Tr. 57). Miller subsequently returned to the mine with the
intention of terminating the citation, however, he again found that the citation had not been
abated and, as a result, issued a 104(b) order. {Tr. 50-51).
E.H. Hoover ("E.H."), a principal in Hoover Inc., testified that, generally, if there is very
prominent loose material on the highwall the mine will try to correct the condition. (Tr. 71 ).
However, removing loose material from the highwall is not standard procedure following the
blasting of material. (Tr. 71). On cross-examination E.H. agreed that Sec'y Exs. 5 and 7
depicted loose material on a highwall, and Ex. 6 ''possibly'' depicted an overhang. {Tr. 80-81 ).
E.H. acknowledged that the mine has never scaled the highwall at this mine. (Tr. 71-72). He
avers that scaling is inherently dangerous and it is economically infeasible to remove all of the
loose rock from the highwall. (Tr. 72-74). E.H. testified that, at one of the compariy's·other
mines in Mississippi, Hoover has an agreement with MSHA that the front loader wiJl not load all
the way to the toe, or face, and instead will only load "up to about 15 to 20 feet" from the toe.
(Tr. 77). E. H. acknowledged that the Lebanon Quarry had not fully transitioned to this practice
and had been loading to the toe until this violation was issued. {Tr. 77-78, 81). E.H. averred that
loading to the toe takes the burden away from the face of the highwall and allows the dynamite
to "do its job." (Tr. 78). However, on cross-examination he agreed that loose rock on a 40-foothigh highwall is hazardous. (Tr. 83).
Bobby Charles Lamb, the superintendent at the mine, was deposed after hearing. (Dep.
4). Lamb traveled-with Inspector Miller on the day of the inspection. He testified that the
bottom 35 feet of the southwest highwall was "pretty solid, while the top 5 feet was
''unconsolidated," "kind ofloose," and "broke[n] up more than the other 35 feet" of the highwall.
(Dep. 11, 29). Some of the loose material was basketball or cantaloupe size, and the overhangs
"may have been 3 feet." (Dep. 29, 30). Lamb explained that, when blasting, the drill holes are
filled with explosives and then topped off with "stemming," i.e., crushed stone, for the top 4-5
feet of the hole. (Dep. 11-12). He opined that the stemming prevented the top of the highwall
from breaking up, which, in turn, resulted in the overhanging material. (Dep. 12). Lamb did not
believe that the condition of the highwall was "too bad" and stated that other inspectors had
observed similar conditions but had never said anything about it. (Dep. 13, 14). Lamb agreed
that the blasted material had been cleared to the toe, i.e., loaded to the base of the highwall, and
that no warning, berm or barrier existed to impede access to the area. {Dep. 14, 30).

33 FMSHRC Page 754

Lamb testified that, following the issuance of the citation, Hoover bermed the area and
had its blasting contractor come out and try to remove the unconsolidated material at the top of
the wall. (Dep. 15, 16). The shot failed to remove the material and, according to Lamb, Miller
told him that the condition of the highwall still wasn't good enough. (Dep. 17, 20). Some time
after the citation was issued, E.H. instructed Lamb to start leaving a 20 foot muck pile at the
bottom of the highwall. (Dep. 18). Lamb testified that, on November 13th, Miller asked the
mine to construct a berm, which it did. (Dep. 22). Miller returned again on the 18th and asked if
the mine had scaled the wall, to which Lamb responded that it had not. (Dep. 22). Miller looked
at the muck pile, which extended 15-20 feet out from the highwall, and told Lamb that it wasn't
good enough. (Dep. 23). Lamb testified that Miller then removed the highwall from service.
(Dep. 23). The highwall has been out of service since that day. (Dep. 24). Lamb stated that, in
the time since the highwall was removed from service, he has observed very little material fall.
(Dep. 26).

n.

The Violation

I find that the Secretary has established a violation of the cited standard. I rely primarily
on the clear testimony of Inspector Miller, who observed loose, overhanging, and cracked.
material on the southwest highwall. See Sec'y Exs. 5-7. The loose material had not been .
removed or supported and, based on equipment tracks in the area, it is clear that equipment had
recently traveled near the high wall and under the loose material. The material was ·as large as
three to five feet in diameter and up to two feet in thickness. Both of the Respondent's witnesses
agreed that there was loose material on the highwall and that it was customary for the mine to
load to the toe. ·Further, E.H. testified that Hoover had never scaled the highwall at this mine to
remove foose material.
l also ctedit fuspector Miller that bumping the highwall, inclement weather, or a blast in
another area of the mine could all have caused the loose material to fall. Given the siz~ and
condition of the loose material observed on the highwall, I find that the condition of the highwall
presented a hazard to those individuals operating equipment at the face of, and in close
proximity to, the southwest highwall. The area had not been benned-off or barricaded, nor had
any warning signs been posted.
The Respondent argues that it is difficult and expensive to scale the highwall. However,
Inspector Miller provided a number of suggestions as to how other similarly situated quarries in
the area scale their highwall. The mine owner testified regarding an alleged agreement with
MSHA that does not require Hoover to scale at its other mines. However, it is not entirely clear
what this agreement was, and there is no evidence that this agreement extended to the Lebanon
Quarry. Moreover, even if the agreement did extend to this mine, the Respondent had failed to
implement the allegedly agreed upon practice. Hoover also argues that a preponderance of the
evidence does not exist to show that miners were at risk of injury. I find to the contrary for the
reasons stated above and for the additional reasons stated in my S&S findings below.

33 FMSHRC Page 755

The mine could have benned-off or barricaded the area if it did not want to scale the
highwall, however it failed to do so. I find that the Secretary has established a violation of the
cited standard and that the moderate negligence attributed to the Respondent is appropriate.
111.

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).
As noted above, I fmd that there is a violation of the mandatory safety standard as alleged
by the Secretary. I find, further, that the violation contributed to a discrete hazard, i.e., the
hazard of rock and loose material falling and striking persons or the equipment being operated
by persons. Third; it is more than reasonably likely that the hazard contributed to will result in
an injury. Finally, given the size and amount of loose material, the injury would certainly be
serious and potentially fatal.
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.
Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); U.S. Steel Mining Co., 7 FMSHRC 1125, 1130
(Aug. 1985). Vibrations from machinery, working on the highwall, inclement weather
conditions, and explosions in other areas of the mine, all greatly contribute to the likelihood of
loose material falling and causing an injury. I credit Inspector Miller's testimony that falling
loose material is capable to totally crushing the cabs of the mine equipment that were in use at
this mine. There is no dispute that the mine had been loading to the toe under the loose material.
There is no evidence that the operator took any specific precautions to mitigate possible hazards,
i.e., remove loose from the highwall, nor did it take any steps to berm off, barricade, or post

33 FMSHRC Page 756

warning signs regarding the hazards on the southwest highwall. I find that, when viewed in the
context of continued mining operations, it is more than reasonably likely that loose material
would have fallen and struck a miner or the equipment they were operating. I credit the
inspector's testimony that falling loose material may strike the longwall and bounce outwards,
thereby greatly increasing the area in which loose material may land and, in turn, increase the
likelihood of an injury causing event. Further, I credit Inspector Miller's testimony that the
FOPS on the equipment operating in the area would not have been sufficient to protect against
falling material the size of which fuspector Miller observed, i.e., up to five feet in diameter and
two feet thick. I find that any injury caused by the fall of such material would have been
extremely serious or even fatal.
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 Miller qualifies, without question, as an
experienced MSHA inspector. I find that the facts of this violation clearly establish that it was a
significant and substantial violation. This citation is assessed a $5,000 penalty.

b.

Citation No. 6084505

On November 13, 2008, Inspector Miller returned to the mine and issued Citation No.
6084505 to Hoover for a violation of section 56.3200 of the Secretary's regulations, i.e., the
same section under which the October 28th citation was issued. The citation described the
violative condition as follows:

The upper East High wall which had been bermed had the Berm
removed and deaned up to the toe with loose material/rock in
sevefal areas of the High wall. The High wall was about 40 feet
, high and the loose rocks ranged in size from about 9 inches by 3
inches to about 5 feet by 5 feet by 1 foot thick. This practice
created a hazard of Miners being struck by falling rock.
Miller determined that a fatal injury was reasonably likely to occur, that the violation was
significant and substantial, that one employee was affected, and that the negligence was high. A
civil penalty in the amount of $6,624.00 has been proposed for this violation.
I.

Summary of Testimony

During Inspector Miller's October 28th inspection, he noted that the upper east highwall,
which was adjacent to the southwest highwall, also had loose material, but was properly bermed
on that date. (Tr. 30). Miller returned to the mine on November 13, 2008, with the intention of
terminating the citation for the southwest highwall. (Tr. 40). During his return trip, Miller
noticed that the berm that had previously blocked access to the upper east highwall was no
longer there, but the loose material on the highwall remained. (Tr. 40-41 ). Miller testified that

33 FMSHRC Page 757

loose, overhanging material was present on the highwalL (Tr. 44); Sec'y Exs. 10, 11. Further,
he determined that the highwall had, again, been loaded to the toe based on how little material
was left against the face. (Tr. 44-45); Sec'y Ex. 12. Miller testified that the condition of the
highwall had existed since his earlier trip to the mine. (Tr. 49)
The upper east highwall is roughly 40 feet tall and the loose material ranged in size from
approximately nine inches in diameter, to five feet by five feet by four feet, with the larger
pieces weighing over a couple hundred pounds. (Tr. 45-46). Miller determined that, like the
above citation, the lack of a berm, barricade or warning, combined with loose, overhanging
material, presented a hazard to anyone who went to the toe or walked in the area. (Tr. 46-47).
Miller determined that the violation was reasonably likely to result in a fatal injury for the same
reasons discussed above relating to the early citation. (Tr. 47). He testified that this violation
was the result of high negligence because he had talked about the importance of preventing such
conditions during his previous visit, yet, since then, the mine had taken down the berm that
previously had kept it in compliance and then cleaned right up to the toe. (Tr. 48). Miller
observed that the condition was, again, "absolutely" obvious, should have been detected on
preshi:ft, and had existed on the upper east wall since his previous trip to the mine. (Tr. 49, 50).
According to Miller, Lamb told him that he had instructed the driller to clean the highwall, but
had not instructed him to remove the berm or clean the area all the way to the toe. (Tr. 42).
However, Miller testified that he doesn't beJieve that the driller would have done so without
being directed to do so. (Tr. 50).
E.H.'s testimony regarding Citation No. 6084500 and the mine's practices and
procedures is equally applicable to Citation No. 6084505. E.H. did testify that he agreed that
Sec'y Exs. 10 and 11 showed loose rock, and Ex. 11 possibly showed an overhang. (Tr. 82).
Lan1b testified that the upper east highwall was bermed off on October 28th because there
was loose material on it. (Dep. 31-32). On cross-examination, Lamb stated that on the morning
of November 13th the mine pulled a shot on the upper east highwall to knock down the loose.
(Dep. 32-33). Further, at the instruction of Lamb, David Murphy, the mine's loader operator,
removed some of the material from the shot, but did nor remove the fallen material that was
under the loose material still hanging on the highwall. (Dep. 35-36). Lamb testified that, at
some time before Inspector Miller returned to the Mine on November 13th, James Rogers, the
mine's drill operator, used the front loader to remove the berm that blocked off the highwall.
(Dep. 34-35). When presented with Sec'y Ex. 12 Lamb described the picture by stating that
"[y]ou've got material in here, see. There's nothing back here." (Dep. 37). Lamb could not say
for sure whether Sec'y Ex. 12 depicted the area directly under the upper east high wall. (Dep.
38). Lamb acknowledged that there were no warning signs in the area on November 13th. (Dep.
38).
Lamb testified that, just like the southwest highwall, the upper east highwall has also
been out of service since Inspector Miller shut it down. (Dep. 26-27, 39). Lamb stated that the
upper east highwall has been bermed off, and the loose material that has come down in the two
years since it was closed is similar in size and amount to that which has fallen off the southwest

33 FMSHRC Page 758

highwall, i.e., "smaller stuff, 3 inches" and some pieces as big as softballs. (Dep. 27, 39). Lamb
testified that, generally, the mine pulls a shot every three days. (Dep. 40).
11.

The Violation

I find that the Secretary has established a violation of the cited standard. I again rely
primarily on the clear testimony of Inspector Miller, who observed loose, overhanging, and
cracked, material that created a hazard for miners working or traveling in the area below the
wall. See Sec'y Exs. 10~12. Both of the Respondent's witnesses agreed that there was loose
material on the high.wall. The loose material had not been removed or supported and, based on
the testimony of Miller and Lamb, equipment had been operated in close proximity to the wall. I
again credit the testimony of Inspector Miller that loose material can, and does fall, strike the
wall and bounce outwards. I also again credit his testimony that the FOPS on the equipment
operating in the area would not have been sufficient to protect against falling material the size of
the loose material that he observed, i.e., up to five feet in diameter and one foot thick. A berm
that had previously blocked off the area had been removed and there was nothing to prevent
miners from going under the loose material. I credit Inspector Miller's testimony and find that,
despite Lamb's testimony that the entire bench may not have been loaded to the toe, at least one
area underneath the loose material had been cleared to the toe. See Sec'y Ex. 12.
I also credit Inspector Miller that bumping the high.wall, inclement weather, or a blast in
another area of the mine could all have caused the loose material to fall. Given the size and
condition of the loose material obse1ved on the high.wall, I find that the condition of the high.wall.
presented a hazard to those individuals walking or operating equipment at or near the face of the
southwest high.wall. While a berm may have existed at ·a prior time, at the time of the inspection
the area had not been bermed-off or barricaded, nor had any warning signs been posted.
The Respondent raises the same arguments here as it did with the ear!ier citation
discussed supra. For the same reasons set forth above, I find those arguments to be without
merit. I find that the Secretary has established a violation of the cited standard.
m.

Significant and Substantial Violation

As noted above, I find that there is a violation of the mandatory safety standard as alleged
by the Secretary. I find, further, that the violation contributed to a discrete hazard, i.e., the
hazard of rock and loose material falling and striking persons or the equipment being operated
by persons. Third, it is more than reasonably likely that the hazard contributed to will result in
an injury. Finally, given the size and amount ofloose material, the injury would certainly be
serious or even fatal.

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.
Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); US. Steel Mining Co., 7 FMSHRC 1125, 1130
(Aug. 1985). Vibrations from machinery, working on the high.wall, inclement weather
conditions, and explosions in other areas of the mine, all contribute to the likelihood of loose

33 FMSHRC Page. 759

material falling and causing an injury. The mine had been loading material to the face of the
highwall. The berm that existed on October 28th had been removed by November 13th, but the
loose material remained on the highwall. In addition, there was no other barricade or warning in
the area. I find that, when viewed in the context of continued mining operations, it is more than
reasonably likely that loose material would have fallen and struck a miner or the equipment they
were operating. I credit the inspector's testimony that falling loose material may strike the
longwall and bounce outwards, thereby greatly increasing the area in which loose material may
land and, in turn, increase the likelihood of an injury causing event. Further, I credit Inspector
Miller's testimony that the FOPS on the equipment operating in the area would not have been
sufficient to protect against falling material the size of which Inspector Miller observed, i.e., up
to five feet in diameter and one foot thick. The individual who cleaned the bench up to the toe
was in danger of being crushed by the loose material above him. Miller was aware of other
instances where loose material had fallen on equipment and caused fatal injuries. I find that any
injury caused by the fall of such material would have been extremely serious or even fatal.
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 Miller qualifies, without question, as an
experienced MSHA inspector. I find that the facts of this violation clearly lead to a finding that
it was a significant and substantial violation.
iv.
Negligence
I find that Inspector :Miller appropriately designated this violation as high negligence.
On October 28th, Miller discussed with the operator the exact hazard created by the condition
cited on November 13th. During his inspection on the 28th, he commented to Lamb regarding the
appropriateness of the upper east bighwall berm that was erected at that time. When he returned
on the 13th, he was surprised to see that the barricade had been removed in spite of that
conversation. Moreover, in at least one area, it was clear that equipment traveled directly under
the loose material and cleared the fallen material to the toe. I find that Lamb, the mine's
superintendent, was obviously aware of what was required of the mine to be in compliance with
the cited standard. Nevertheless, it is clear that either (1) this information was not properly
communicated to the driller who removed the berm, (2) the driller was instructed to remove the
berm, or (3) the mine was highly careless in failing to supervise the driller at the time the berm
was removed. Given the obviousness of the condition of the highwall, the fact that the mine had
been placed on notice regarding the condition, and the fact that the condition had existed for an
extended period of time, each of these possibilities lends itself to a finding of high negligence. I
find that this violation was the result of high negligence on the part of the Respondent.
Due to the high negligence finding and the failure to abate orders that were not
considered in the Secretary's proposed penalty, I assess a penalty of$10,000.00 for this
violation.

c.

Settled Citations

33 FMSHRC Page 760

The Respondent and the Secretary have agreed to the following settlement amounts for
the remaining citations in this docket. Each of the settled violations was designated as a 104(a),
non-S&S citation.
Citation No. 6084501
Citation No. 6084502
Citation No. 6084503
Citation No. 6084504

$334.00
$460.00
$207.00
$117.00

Total Settlement Amount

$1118.00

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 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). 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 "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 accept the stipulation of the parties that the penalties proposed are appropriate to this
operator's size and ability to continue in business. The conditions cited in both citations were
not timely abated and, as a result, two 104(b) orders were issued. Rather than abate the citations,
the operator chose to leave the 104(b) orders in place and not utilize those areas of the mine
affected by the orders. The history is normal for this size operator. I accept the Secretary's
findings of negligence as discussed above. Further, I find that the Secretary has established the
gravity as described in the citations.

33 FMSHRC Page 761

III. ORDER
Based on the criteria in section l lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess a
penalty of $15,000.00 for the two citations discussed above. The parties' motion for settlement
is GRANTED. Hoover, Inc. is hereby ORDERED to pay the Secretary of Labor the sum of
$16,118.00 within 30 days of the date of this decision.

Distribution:_ (U.S. First Class Certified Mail)
Matthew Shepherd, Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite
230, Nashville, TN 37219-2456
G. Sumner R Bouldin, Bouldin & Bouldin, PLC, 122 North Church Street, Murfreesboro, TN
37133-0811

33 FMSHRC Page 762

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 1gt11 STREET, SUITE 443
DENVER, CO 80202-2500
303-844-3577/F/!\X 303-844-5268

March 18, 2011
CIVIL PENALTY PROCEEDINGS

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

Docket No. LAKE 2009-030
A.C. No. 11-03141-161545-01
Docket No. LAKE 2009-193
A.C. No. 11-03141-170102-01

v.

Docket No. LAKE 2009-405
A.C. No. 11-03141-178166-02

MACH MINING, LLC,
Respondent

Mach#l Mine

DECISION
Appearances:

Sarah T. White, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado, for Petitioner;
Christopher D. Pence, Esq., Allen Guthrie & Thomas, PLLC, Charleston,
West Virginia, 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"),
against Mach Mining, LLC ("Mach") 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 St. Louis, Missouri.
Mach operates an underground coal mine in Williamson County, Illinois. This mine
employed an average 165 people in 2008 and 173 people in 2009. These cases involve 13
citations issued under section 104(a) of the Mine Act, but the parties settled 7 of the citations
prior to the hearing.

I. DISCUSSION WITH FINDINGS OF FACT
CONCLUSIONS OF LAW
A. Citation Nos. 6674679 and 6674680
On January 20, 2009, Inspector Bobby Jones issued Citation Nos. 6674679 and 6674680
under section 104(a) of the Mine Act, alleging violations of30 C.F.R. § 75.400 as follows:
33 FMSHRC Page 763

Accumulations of loose coal saturated with oil, coal float dust, oil,
and grease were allowed to accumulate, in active workings, on the
Fletcher Roofbolting Machine Co. No. 1, located on the HG#3
(MMU-002) Active Section. The accumulations were found in the
motor compartment, operator's controls compartment, on the frame
and ranged in depth from a thin film to 2 inches in depth.
(Ex. 8). Citation No. 6674680 was identical to the previous citation except that it applied to the
Fletcher Roofbolting Machine Co. No. 4. (Ex. 9). For both citations, the inspector determined
that an injury was reasonably likely and that any injury could reasonably be expected to result in
lost workdays or restricted duty. He determined the violations were significant and substantial
("S&S") and that the company's negligence was moderate. Section 75.400 provides that "[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." The Secretary proposes a
penalty of $1,530.00 for each citation.
Inspector Jones testified that accumulations of hydraulic oil and oil-soaked coal were on
the No. 1 roofbolting machine, located in the working section area ofHeadgate 3. (Tr. 19, 20).
The inspector determined that the violation was S&S because, if the condition were left
uncorrected it would be reasonably likely it could lead to an accident or injury. (Tr. 25).
Inspector Jones testified that the conditions surrounding Citation No .. 6674680 were comparable
to the conditions surrounding Citation No. 6674679. (Tr. 45-46, 47-48). He estimated that the
machines were 300 to 400 feet apart at the time the citations were issued. (Tr. 46). When
making his S&S determination, the inspector considered a multitude of factors including the
location of the equipment and how it would affect the machine's operators. (Tr. 25-26). He
testified that oxygen, fuel, and an ignition source (''triangle of fire") were all present, and that
"moving parts, motors, [and] shafts" generate heat and can act as ignition sources. (Tr. 26). The
inspector determined that the company's negligence was moderate because the section foreman,
who is responsible for finding and abating such conditions, should have found the accumulations
during an on-shift examination. (Tr. 27). The inspector was uncertain how long the condition
had existed before the citation was issued, but estimated it had been there for a few days. {Tr.
28-29, 38). He testified that the accumulation could not have occurred over the course of only
one shift. (Tr. 38).
During cross-examination, the inspector testified that the machine was not running at the
time the citation was issued, but he believed it had previously been running with the
accumulations present. (Tr. 33). Inspector Jones did not determine either the flashpoint of the
accumulated material or the operating temperature of the equipment during the inspection. (Tr.
34-35). The machine is equipped with a fire suppression system, which provides coverage for
the entire machine and must be manually activated by a miner in case of fire. (Tr. 35-36).
Mach's roofbolters are also equipped with methane monitors that read 0.2 percent or less at the
time ofinspection. (Tr. 37).

33 FMSHRC Page 764

Jim Henderson, the third-shift mine manager at the mine, testified on behalf of Mach.
Henderson was present when Inspector Jones issued both citations. (Tr. 54). According to
Henderson, the methane monitors on the roo:fbolters sound an alarm at 1 percent and shut down
the machine at 2 percent. (Tr. 60). His testimony supported Inspector Jones's testimony
regarding the methane levels in the cited area at the time of inspection, as well as the existence
and function of the fire suppression systems. Id. Henderson stated that he did not see any
evidence on any part of the machine indicating an ignition was reasonably likely to occur. (Tr.
61, 62, 63). Henderson contradicted the inspector, testifying that the accumulations could have
accrued over only one shift. (Tr. 64).
On cross-examination, Henderson testified that his interpretation of reasonably likely is
"a much higher percentage of happening." (Tr. 68). He also testified that the fire actuators,
which activate the fire suppression system, are strategically located around the machines, making
them easy for the operators to access in case of a fire. (Tr. 69).
Anthony Webb, the general manager at the mine, testified on behalf of Mach. When
questioned about moving parts in the motor compartment that could potentially ignite
accumulated material, Webb stated that:
There's one coupling between the motor and the pump, and it is a
plastic coupling, and it's internal with a guard. . . . [T]he only
other moving part is one pulley with a belt, and it is high enough
up off the floor to where two inches of material would not contact
that pulley or belt.
(Tr. 76). "In preparation for the hearing, Webb measured the operating temperature of the pump
compartment and operator's compartment, two places where accumulations of hydraulic fluid are
common, at apout 140 to 145 degrees Fahrenheit. (Tr. 77). It is his understanding that this is
consistent with the temperature at which most electric hydraulic equipment operates. Id. Webb
also measured the operating temperature of the frame between 72 degrees and 76 degrees
Fahrenheit. (Tr. 78). Jn comparison, the material safety data sheet (''MSDS") for the hydraulic
oil being used in the machines indicates a flashpoint of 450 degrees Fahrenheit and the MSDS
for the grease referred to in the citations indicates a flashpoint of 480 degrees Fahrenheit. (Tr.
79, 80). Tue· Mach #1 Mine is in the Herrin No. 6 seam where an accumulation of coal has a
flashpoint of380 degrees. (Tr. 81). Webb testified that it is the production shift's responsibility .
to clean, grease, and service any equipment that needs to be taken care of. (Tr. 84). Webb's
testimony also supported Henderson's description of the roo:fbolter' s fire suppression system.
(Tr. 82-84). Webb agreed with Henderson's opinion that an accident was not reasonably likely
because there was no ignition source present. (Tr. 84). On cross-examination, Webb testified
that the two inches of accumulation was not a large amount for one shift. {Tr. 92).
With respect to both citations, Mach stipulated that the accumulated materials existed in
violation of§ 75.400. Further, it agrees with the inspector's determination that, if an ignition

33 FMSHRC Page 765

were to occur, ariy injury could reasonably be expected to result in lost workdays or restricted
duty. {Tr. 49). However, Mach argues that the Secretary failed to establish the violations were
S&S because she did not prove that an ignition was reasonably likely to occur. Id. Mach
maintains that there was no evidence as to either the flashpoint of the cited material or the
operating temperature of the machines. Id. Mach argues that the evidence it presented with
regard to the material's flashpoint and the equipment's operating temperature leads to the
conclusion that an accident or injury was unlikely to occur. {Tr. 310). Mach relies on Highland
Mining Co., 30 FMSHRC 1097 (Nov. 2008) (ALJ) and AMAX Coal Co., 18 FMSHRC 1355
(Aug. 1996) to support the conclusion that when the evidence demonstrates that there is no
ignition source present for the accumulation, the citation should be non-S&S. {Tr. 310).
Mach also argues that the company's negligence should be reduced to low for Citation
Nos. 6674679 and 6674680. (Tr. 311 ). This argument is based on the fact that the section
foreman and the machine operators have to rely on their personal experience and judgment when
determining if the machines need to be cleaned. Id.
A violation is properly designated S&S "if, based on the particular facts surrounding the
violation, there exists a reasonable likelihood that the hazard contributed to by the violation will
result in an injury or illness of a reasonably serious nature." Cement Division, National Gypsum,
3 FMSHRC 822, 825 (Apr. 1981 ). The Commission has elaborated on this standard, adding
elements that the Secretary has the burden of proving. Mathies Coal Co., 6 FMSHRC 1, 3-4
(Jan. 1984). The elements are:

(1) [T]he 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.
Id. An evaluation of the reasonable likelihood of injury should be made assuming continued
normal mining operations. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (August 1985).
Finally, the Commission has held that, in determining if an ignition or explosion is reasonably
likely, a judge must analyze a "confluence of factors," "including the nature of the mine
involved." Texasgulf, Inc., IO FMSHRC 498, 501 (Apr. 1988).

There are several factors in this case that indicate it was not reasonably likely that the
hazard contributed to by the violation would lead to an injury. Although there is conflicting
testimony as to how long the accumulations existed before the citation was issued, I credit the
testimony of Henderson and Webb that the accumulations could have developed during a single
shift. Because the machines were not operating at the time the citation was issued, there is no
indication the machines had been in operation with the accumulations present. Furthermore,
there was no ignition source present. I credit Webb's testimony that he measured the operating

33 FMSHRC Page 766

temperature on various parts of the machines and found these nwnbers to he substantially lower
than the flashpoints of the combustible accwnulations. The machines were also in a safe
operating condition, eliminating the possibility of ignition caused by hazardous wiring or other
problems. According to Webb, assuming normal mining operations, the machines would have
been cleaned by the time of the next production shift. Finally, the methane monitors used on the
machines significantly decrease the likelihood of an accident and established that, at the time of
inspection, methane levels in the area were low.
I have previously held that an operator's admitted violation of§ 75.400 based on
accumulations of loose coal, coal fines and float coal dust was not S&S because MSHA failed to
prove it was reasonably likely that a fire would occur. C. W Mining Co., 17 FMSHRC 937, 943
(June 1995) (ALJ Manning). In C. W Mining, material had accwnulated in an area where a roof
bolter was operating, and the Secretary argued the machine was a potential ignition source. Id. at
941. The Secretary did not explain how the machine could have ignited the combustible material
and the evidence did not establish it was reasonably likely an injury causing accident would
occur. Id. at 942-43. In C. W Mining, it was also important that the accwnulations would have
been removed before mining reswned, thereby exposing miners to the hazard for only a short
period of time. Id. at 943. Because of these factors, the citation was modified to delete the S&S
designation.
In another case. the operator appealed a judge's decision that accumulations on the
continuous miner were S&S. AMAX, at 1356. The operator argued that the judge failed to apply
the proper test to determine if the violation was S&S. Id. at 1357. The operator's main
contention was the judge applied the wrong legal standard under part three of the Mathies test,
focusing on if an injury "could occur," rather than if it "will result." Id. The Commission agreed
with the operator in this case and vacated the S&S determination. Id. at 1359. The Commission
held that a judge should focus on if it is reasonably likely that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. Id. at 1358.
Based on these factors and Commission precedent discussed above, I find that, due to the
lack of an ignition source, the Secretary did not establish that an ignition was reasonably likely to
occur. The Secretary established that an injury was possible but not that an injury was
reasonably likely. My findings in this regard are, of course, limited to the specific facts presented
in this case. Therefore, the S&S determinations for Citation Nos. 6674679 and 6674680 are
vacated. I find that the gravity of the violations was serious because, if an injury were to occur, it
would likely result in lost workdays or restricted duty.
I find that the violations were the result of Mach's moderate negligence. Even though the
roof bolting machines were not in use, the condition should have been detected during the onshift examination. A penalty of$1,000.00 is appropriate for each citation.

33 FMSHRC Page 767

B. Citatfon Nos. 6674879, 6674883, and 6674688

On July 29, 2008, fuspector Edward Law issued Citation No. 6674879 under section
104(a) of the Mine Act, alleging a violation of 30 C.F.R. § 75.400 as follows:
Accumulations of combustible materials in the form of coal fines
and loose coal are present at the slope belt tripper drive. The
accumulations are in contact with the operating bottom slope belt.
The accumulations are on the tripper drive framing artd structure to
the angle of repose for a distance of approximately 7 feet and
underneath the tripper drive framing on both sides the same
distance. The accumulations are approximately 7 to 18 inches in
depth, 2 to 4 feet wide and 3 Yz to 4 [Yz] feet in length at the wiper
contact area. The slope belt was removed from service by
management until the contact areas were cleared.
(Ex. 4). The inspector determined that an injury was reasonably likely and that any injury could
reasonably be expected to result in lost workdays or restricted duty. He determined the violation
was S&S and that the company's negligence was moderate. The Secretary proposes a penalty of
$634.00 for this citation.
Inspector Law testified that he issued the citation because there were extensive
accumulations of combustible materials on the upslope side of the tripper drive. (Tr. 203, 204).
The inspector stated that the belt was running in coal and accumulations, creating a frictional
heat source. (Tr. 207). The cited condition was adjacent to a frequently used travelway. {Tr.
208). The inspector testified that he believed the condition had existed for two to three shifts.
(Tr. 210). The inspector also believed that under normal mining conditions, if this condition
were allowe~ to continue, it would be reasonably likely a fire would occur. (Tr. 220).
On cross-examination, fuspector Law testified about factors that limited exposure to the
hazard. There are carbon monoxide ("CO") monitors that detect carbon monoxide and, in the
event of an increase in the CO level, the control center on the surface is alerted. (Tr. 222). There
was also a fire suppression system and hose outlets at the drive, about ten feet away from the
wiper. (Tr. 223). The inspector testified that the air at the cited location was flowing outby, so in
the event of a fire smoke would flow directly to the surface. {Tr. 224). In this event, miners
would be blocked from their normal exit thereby requiring them to use an escape capsule in a
distinct air course. (Tr. 241, 243). The inspector agreed that accumulations on a mine floor,
such as the one cited, can occur quickly under the right circumstances. {Tr. 228). However, he
testified that the coal fines on the railing and the packed coal could not have accumulated
between the preshift examination and the time he issued the citation. (Tr. 231 ). He stated that it
is impossible for the belt to rub the coal fines that were located on the railing. Id. However, the
inspector testified that, at the time of inspection, the belt running on a roller above the tripper
drive frame was in contact with coal accumulations. (Tr. 232; Ex. M-13). According to the

33 FMSHRC Page 768

inspector, the coal was dry where it was rubbing against the belt but he was unsure if other parts
of the accumulation were wet or dry. (Tr. 226).
Chris England, a shift manager at the mine, testified on behalf of Mach. He testified that
the slope where the belt is located is ventilated with neutral air that travels outby. (Tr. 246).
England accompanied Inspector Law when the citation was issued. During this time he observed
wet coal piled up to the bottom of the belt. (Tr. 248, 250). Because of the coal's wet condition,
it was England's belief that the accumulations were the result of a wasbback. (Tr. 251 ).
Washback happens when water-saturated coal slides down the slope belt to the area just outby
the tripper drive. All the coal extracted at the mine exits the mine on this slope belt, which is at
an angle. Because the slope belt exits the mine, rainwater can also run down the belt. The
saturated material typically spills off just above the tripper drive, carrying coal fines and loose
coal along with it. Id. England testified this accumulation looked "exactly'' the same as
washback accumulations be has seen in the past. (Tr. 252). Furthermore, England believes this
condition could have occurred in a "split second," and it is his opinion this accumulation had not
been there long. (Tr. 256, 260). England contradicted the inspector's testimony with regard to
the roller. (Tr. 253). According to England, the roller in question no longer supported the belt
after a new scraper was installed prior to the time this inspection took place. Id. England also
testified that the fire suppression system would provide sufficient coverage to the cited area. (Tr.
257-59; Ex. M-10).
Dave Adams, an examiner at the mine, testified on behalf of Mach. Adams was
responsible for examining the cited area on July 29. (Tr. 269; Ex. M-14). Adam~ testified that
the cited accumulation was not present at the time of his preshift examination around 6:00 a.m.
(Tr.-273). Adams also testified that accumulations such as this one can occur in a short amount
of time. (Tr. 272). On cross-examination, Adams stated the tripper drive is well lit with the
result that accumulations are easy to identify. {Tr. 276). He further testified that he would not
overlook an accumulation as extensive as the one described in Inspector Law's citation. (Tr.
'
274-75).
On July 29, 2008, Inspector Law issued Citation No. 6674883 under section 104(a) of the
Mine Act, alleging a violation of30 C.F.R. § 75.360(a){l) as follows:
A[n] inadequate preshift exam of the slope belt was made on the
midnight (11 PM to 7 AM) shift, 7/29/2008. A hazardous
condition existed on the slope belt at the tripper drive where an
accumulation of combustible materials (coal fines and loose coal)
were in contact with the operating belt. This area was on the
travelway side of the belt. There was no record of this condition in
the examiner books.
(Ex. 6). The inspector determined that an injury was reasonably likely and that any injury could
reasonably be expected to result in lost workdays or restricted duty. He determined the violation
33 FMSHRC Page 769

was S&S and that the company's negligence was moderate. Section 75.360(a)(l) provides that
"[eJxcept 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." The Secretary
proposes a penalty of $634.00 for this citation.
Inspector Law testified that there was an inadequate preshift examination because the
preshift examiner did not identify the accumulated combustible material that is the subject of
Citation No. 6674879. (Tr. 215; Ex. M-14). Although an examination was performed, the cited
hazard was not listed and the records indicated the mine was safe. (Tr. 217; Ex. M-14). The
inspector designated the citation S&S because it was written in conjunction with Citation No.
6674879. (Tr. 219). The inspector testified that this citation also should have been marked high
negligence, instead of moderate. Id. On cross-examination, Inspector Law testified that he did
not consult with the preshift examiner to discuss the condition of the mine. (Tr. 236). However,
inspectors are not required to consult with examiners before issuing a citation under this section.
(Tr. 238).
On January 26, 2009, Inspector Jones issued Citation No. 6674688 under section 104(a)
of the Mine Act, alleging a violation of 30 C.F.R. § 75.400 as follows:

Accumulations of rock, loose coal and coal float dust were allowed
to accumulate under the HG#3 tripper drive and on both sides of
the belt for a distance of 30 feet inby the drive. The accumulations
measured approximately 2 inches to 7 inches deep, 2 feet to 6 feet
wide, and 50 feet long. This condition existed from the outby end
of the drive located at 80 cross cut in the #2 entry (alternate
escapeway). Accumulations were also observed from 16 to 18
cross cut on the back side of the belt. These accumulations ranged
:from 2 inches to 6 inches in depth and 2 feet to 3 feet wide.
(Ex. 11 ). The inspector determined that an injury was reasonably likely and that any injury could
be reasonably expected to result in lost workdays or restricted duty. He determined the violation
was S&S and that the company's negligence was moderate. The Secretary proposes a penalty of
$5,503.00 for this citation.
Inspector Jones testified that he issued this citation because accumulations between two
and seven inches deep of rock, loose coal, and coal float dust were under the tripper drive
extending outby for some distance. (Tr. 280, 281 ). He further testified that the belt was making
contact with the accumulations. (Tr. 282). The inspector stated that he was unsure how long the
condition had existed prior to issuing the citation. (Tr. 283). The inspector determined that the
company's negligence was moderate because the condition should have been observed during a
preshift examination. Id.

33 FMSHRC Page 770

On cross-examination, the inspector testified that at the time of inspection, he mistakenly
believed the air was traveling inby. (Tr. 285-86). In the inspector's opinion, the fact that the air
was actually traveling outby would reduce the number of miners affected from ten to one. (Tr.
286). The inspector testified that the area was well rock-dusted and equipped with atmospheric
monitoring devices, a fire suppression system, and firefighting equipment. (Tr. 286-87).
Although it is the inspector's opinion that the accumulation existed during the preshift
examination, he could not be certain. (Tr. 302).
England testified that he accompanied Inspector Jones at the time this citation was issued.
(Tr. 292). He confirmed the inspector's testimony that the area was well rock-dusted. (Tr. 293).
England also testified that the recovery rate in this area of the mine is a maximum of 50 percent.
(Tr. 294). 1 Adams testified that he inspected the area around 4:15 a.m., at which time the
Headgate 3 tripper drive area was idle, and he did not observe any hazards in the area. (Tr. 297,
298-99; Ex. M-12e).
The Secretary emphasizes that Mach has a history of§ 75.400 violations. (Tr. 306).
Furthermore, the Secretary argues it was reasonably likely that the accumulations could have
caused fires leading to serious injuries because the triangle of fire was present in all cases. Id.
The Secretary argues that because inspectors have discussed accumulation issues with Mach
many times, Mach had notice of the problem. (Tr. 308). The Secretary stipulated that the
number of miners affected by Citation No. 6674688 should be reduced from ten to one. (Tr.
307). The Secretary also points out that § 75.360 does not require the inspector to consult with
the preshift examiner before issuing a citation for an inadequate preshift examination. (Tr. 308).
Mach emphasizes the fact that the cited areas are protected by atmospheric monitoring,
fire suppression, and firefighting equipment. (Tr. 313). Furthermore, neutral air was traveling
outby in both areas. Id. Mach argues that the credible testimony of Adams. who said that the
accumulation~ were not present during his preshift examination, should be highly probative. (Tr.
315, 316). Mach also argues that, because the material was wet, it was likely fresh. (Tr. 315).
Although the inspectors testified that they believed the accumulations must have been present
during the preshift examination based on their experience, Mach believes that the evidence it
presented established this type of accumulation can occur quickly. (Tr. 314).
With specific regard to the accumulation citation at the Headgate 3 tripper drive, Mach
argues that the 50 percent recovery rate and Jones's testimony that the area was well rock-dusted
should convince the Commission to reduce the citation to non-S&S. (Tr. 313-14). Regarding the
slope belt tripper drive, the air only had to travel 1800 feet to the surface. (Tr. 313). Mach
maintains it did not violate § 75.400 because this type of spillage can occur quickly and is routine
under normal mining conditions. (Tr. 314, 315). Alternatively, if a violation of§ 75.400 is
found, Mach argues that it was non-S&S based on its location near the surface, the manner in

1

In this context, a recovery rate of 50% means that half of the material mined and
transported on conveyor belts at the mine is non-combustible rock.
33 FMSHRC Page 771

which it was ventilated, and the presence of atmospheric monitoring, fire suppression, and
firefighting equipment. Id.
Finally, Mach argues that the negligence determination for both of the accumulation
citations should be none because there was no evidence presented to indicate the accumulations
were present at the time of the preshift examination. (Tr. 315-16). Furthermore, Adams testified
the material was not present during his examination of the area. (Tr. 273, 297). Mach relies on
Enlow Fork Mining Co., 19 FMSHRC 5 (Jan. 1997) to support the conclusion that if a judge
finds an examiner credibly testified that the cited condition was not present at the time of
examination, the accompanying examination citation should be vacated. (Tr. 316).

fu Enlow Fork, the Commission upheld a judge's dismissal of a citation for an inadequate
preshift examination based on accumulations of loose coal and float coal dust in a longwall
section. Enlow Fork, at 15. The judge made a credibility determination in favor of the
operator's preshift examiner who testified that the accumulations were not present during his
preshift examination. Id. at 14-15. However, in the same case, the Commission affirmed the
judge's finding that the operator conducted an inadequate preshift examination based on coal
dust and loose coal at a belt feeder. Id. at 18. =For this citation, the judge made a credibility
determination in favor of the MSHA inspector who testified the accumulations must have been
present during the preshift examination based on the accumulation's heavy concentration. ld. at
17, 18.
fu a case with similar factual circumstances to the case at bar, the Commission upheld an
S&S designation for a citation for a violation of§ 75.400. AMAX Coal Co., 19 FMSHRC 846,
850 (May 1997). The Commission was not persuaded by the operator's argument that the
presence of fire detection systems, self-contained rescuers, and firefighting equipment in the
cited area minimized the risk of injury to miners from a fire. Id. Furthermore, the operator in
AMAX had ap. extensive history of accumulation violations and had been counseled by MSHA
numerous times regarding this problem. Id. at 847. However, AMAX is distinguishable in
several key aspects. First, the cited accumulations were caused by spillage at the intersection of
two major belts and were more extensive than the accumulations at issue here. Id. at 849. In
fact, they were characterized as a "major spill" by the company's own shift manager. Id.
Second, the judge found that the accumulations had built up over several days. Id. at 847. Third,
it was undisputed that a 15 foot.section of the main belt was running in contact with packed, dry
coal and loose coal. Id. at 849. Finally, it was not disputed that the surface area of the
accumulation was dry. Id.
In another case upholding an S&S designation for a§ 75.400 violation, the Seventh
Circuit Court of Appeals stated that the presence of fire safety measures "does not mean that fires
do not pose a serious safety risk to miners. fudeed, the precautions are presumably in place (as
MSHA regulations require them to be) precisely because of the significant dangers associated
with coal mine fires." Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995).
However, Buck Creek is also distinguishable from the case at bar. fu Buck Creek, the inspector

33 FMSHRC Page 772

issued a citation because a tail roller was turning in black coal fines, the color indicating to him
''that the accumulation was not mixed with rock dust and therefore not of the proper
incombustible content." Id. at 135. In the MSHA inspector's opinion, the cited accumulations
had been present for at least three shifts, and the judge found they had been present for at least
one prior shift. Id. at 136. Furthermore, the judge made a credibility determination in favor of
the inspector who testified ''that in the event of a fire, smoke and gas inhalation by miners in the
area would cause a reasonably serious injury requiring medical attention." Id. After stating that
"credibility determinations reside in the province of the ALJ," the court held the judge did not
abuse his discretion in crediting the testimony of the MSHA inspector. Id.
I credit the testimony of Adams who stated that accumulations described by the inspector
were not present during his preshift examinations. I also credit the testimony of England,
supported by Adams, who stated that these types of accumulations can occur over a short period
of time. Together, the testimony of Adams and England sustain a reasonable probability that the
accumulations were not present during the preshift examination. For these reasons, Citation No.
6674883 alleging a violation of section 75.360 is vacated.
With regard to Citation Nos. 6674879 and 6674688, I find that the Secretary has
established the violations of§ 75.400. However, I also find that the violations were not S&S.
The Secretary did not establish that, assuming continuing normal mining operations, the hazard
contributed to by the violations would have been reasonably likely to result in an injury to a
miner. I find, for several reasons, that miners were not exposed to the hazard that existed on the
slope belt. I credit the testimony of Mach's witnesses that the material was wet and that the
roller of concern was no longer in use. If the accumulations did begin to smolder, the CO
monitoring system and the sprinkler system would have doused the area before a significant
hazard was created. The cited area was near the surface and any smoke would have traveled
away from the mine workings. I also credit the testimony of the company's witnesses that the
material was 'Yet and could have accumulated over a short period of time. I reach the same
conclusion with respect to the accumulation at the HG #3 tripper drive for similar reasons. As
stated by England, the recovery rate a1 the mine is no more than 50 percent, which means that at
least half of the accumulated material was non-combustible rock. The area was well rock-dusted,
CO monitors were in the area, and water sprays were also present. The only potential ignition
source was the belt itself and I find that it was unlikely that the belt would generate enough heat
to ignite the accumulation. Finally, the material could have accumulated in a relatively short
period of time. I find that the gravity of both violations was serious because, if an injury were to
occur, it would likely result in lost workdays or restricted duty.
I find that Mach's negligence was moderate. The mine has a history of accumulation
violations and it had been put on notice that greater efforts must be made to eliminate
accumulations. A penalty of$500.00 is appropriate for Citation No. 6674879 and a penalty of
$1,000 is appropriate for Citation No. 6674688.

33 FMSHRC Page 773

c. Citation No. 6674860
On July 17, 2008, Inspector Edward Law issued Citation No. 6674860 under section
104(a) of the Mine Act, alleging a violation of30 C.F.R. § 75.l 722(a) as follows:
The DBT company #2 ratio feeder located in the #2 Headgate, 003MMU working section cross cut #112 has the top cover over the
chunk breaker missing exposing miners to moving machine parts.
The missing cover is approximately 3 feet wide by 4 feet long, 24
inches in from the walkway and 4 and Y2 feet up from the mine
floor. There is also a side cover plate that is out of position
exposing a miner to moving machine parts approximately 7 inches
by 7 inches. The exposed revolving chunk breaker pick points are
within easy reach of a working miner. The area was flagged off to
prevent travel.
(Ex. 2). The inspector determined that an injury was reasonably likely and that any injury could
reasonably be expected to be permanently disabling. He determined the violation was S&S and
that the company's negligence was moderate. Section 75.l 722(a) provides that ~'[g]ears;
sprockets; chains; drive, head, tail, and tak:eup pulleys; flywheels; couplings, shafts; sawblades;
fan inlets; and similar exposed moving machine parts which may be contacted by persons, and
which may cause injury to persons shall be guarded." The Secretary proposes a penalty of
$946.00 for this citation.
Inspector Law testified that the offset side cover was four and a half feet up from the
mine floor. (Tr. 101 ). The opening exposed miners on the rib side of the feeder to moving parts
24 inches away. Id. The inspector testified that there was enough room for a miner to travel
between the ,exposed area and the rib. (Tr. 102). Although he did not observe any miners
working in the area, he testified that the presence of shovels and grease guns were obvious signs
people had been working in the area. (Tr. 104, 124). During theinspection, Mach management
flagged the area and blocked the entrance and exit. (Tr. 105).
On cross-examination, Inspector Law testified that in order for an area to be citable under
§ 75.l 722(a) it must satisfy a two-part test. (Tr. 109). Moving parts must be guarded if they
might be contacted by persons and might cause injury to those persons. Id. The feeder that was
cited has three different locations where shuttle cars can dump coal onto a moving conveyor
chain. (Tr. 110). MSHA regulations do not require these areas to be guarded because in normal
mining operations a miner would not work in this area. (Tr. 111-12). This particular feeder is
also mounted on cats, allowing it to be moved every third shift as mining advances inby. (Tr. ··
115). Furthermore, the chunk breaker on this feeder is offset to the rib side of the machine. (Tr.
119, 121-22; Ex. M-7). The inspector's testimony is unclear regarding the distance from the
uncovered chunk breaker to the rib. He first testified that the distance ''was well more than two
feet." He later stated that there were areas that were less than two feet but he could walk

33 FMSHRC Page 774

through the area. (Tr. 123, 124). The inspector further testified that it is possible that the
evidence he observed of workers in the area could have been there before the feeder was moved
inby. (Tr. 125). Finally, the inspector testified that he does not believe the cited opening would
expose a miner on the walkway side of the machine to moving parts. (Tr. 127; Ex. M-5, M-7).
Webb testified that the feeder is moved on the third shift a maximum of once a day. (Tr.
136). The tram is energized during the move but the conveyor chain and chunk breaker do not
run. Id. Webb also testified that the cited feeder was purchased without a top guard over the
chunk breaker and MSHA approved of the machine in that condition. (Tr. 138, 150). The cover
was added only to control dust generated from the chunk breaker, not to protect miners from
moving machine parts. (Tr. 138-39). To prepare for the hearing, Webb measured a distance of
four feet from the walkway side of the machine to the missing cover. (Tr. 141; Ex. M-2, M-4).
It is Mach's policy that miners may not access the rib side of the machine while the machine is
operating. Webb testified that he has never seen a miner in violation of this policy under normal
mining conditions. (Tr. 140). Webb's testimony also helped clarify the distance between the
cited area of the machine and the rib. He testified that the cat track on the machine is adjacent to
the chunk breaker and juts out toward the rib, so anyone walking in this area would be forced to
walk sideways. (See Tr. 144-45). Past the cat track and chunk breaker the space opens up to
about two feet allowing a person to walk normally. Id.
England testified that typically ten or eleven men work on one section at a time at the
mine. (Tr. 173). Of these men, nine are operating ~uipment inby the feeder. Id. England
testified that, during normal mining operations, there would be no reason for the other two
miners to work in between the rib and the feeder. (Tr. 174). This particular feeder is different
than most feeders in the mining industry. (Tr. 175). First, the chunk breaker on this feeder is
offset from the center away from the walkway side so that the feeder can fit tighter against the
rib. Id. Second, all the teeder's controls are on the walkway side of the machine. Id. Finally,
the tailpiece is mounted directJy on the feeder. (Tr. 179). England stated that, during mining
operations, miners would only be on the walkway side of the feeder and it is against company
policy to work on the rib side. {Tr. 178). England's testimony supported Webb's testimony
regarding when the feeder is moved. (Tr. 180). He added that it is impossible to operate the
caterpillars to move the feeder forward while operating the chunk breaker at the same time. (Tr.
181 ). Based on his measurements, the cited opening is approximately four feet from the
walkway. (Tr. 195; Ex. M-2). England also testified that he would expect spillage around the
dumping point and tailpiece of the feeder, but there has never been spillage on the off side of this
feeder at the chunk breaker. (Tr. 199-200).
Mach requests that Citation No. 6674860 be vacated because it does not believe it
violated§ 75.1722(a). (Tr. 311). Mach notes that the missing cover's :function was to control
dust, not to prevent miners from contacting moving parts. (Tr. 312). Mach argues that the
unique nature of the modified feeder prevents miners from contacting moving parts. Id.
Furthermore, it is Mach's policy that miners do not work on the rib side of the cited feeder when
the chunk breaker is operating, and no evidence was presented to permit the conclusion that this

33 FMSHRC Page 775

policy had been violated or that it would ever be violated. Id. Mach also argues that because the
unguarded chain conveyor was not cited, the coal breaker in the feeder should also not have been
cited. (Tr. 311-12). Mach relies on Kingwood Mining, 30 FMSHRC 943, 948 (Sept. 2008) to
support the conclusion that a missing cover plate only marginally increases a feeder's inherent
danger. (Tr. 312).
I credit the testimony of Webb and England that, under continued normal mining
conditions, a miner would not be on the rib side of the feeder while the chunk breaker was
operating. Therefore, the missing top cover and the cover on the rib side of the machine did not
expose miners to the hazard of moving machine parts. Furthermore, because the chunk breaker
is offset from the center of the machine, a miner could get no closer than four feet from the
missing cover on the walkway side. It would be completely impossible for a miner to come into
contact with moving machine parts from the walkway side. As a consequence, the Secretary did
not establish a violation of section 75.1722(a). Accordingly, the citation is vacated.
II. APPROPRIATE CIVIL PENALTIES

Section 1 lO(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. Mach had 122 paid violations at the Mach #1 Mine during the 15
months preceding July 16, 2008. Mach is a large operator. The mine employed about 170
people at the time of the subject inspections. The violations were abated in good faith. The
penalties assessed in this decision will not have an adverse effect on Mach's ability to eontinue in
business. The gravity and negligence findings are set forth above.

III. ORDER
Based on the criteria in section 1 lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following ci~il penalties:
Citation No.

30 C.F.R. §

Penalty

7S.1722(a)
75.400

Vacated
$500.00

75.360

Vacated

LAKE 2009-030
6674860
6674879

LAKE 2009-193
6674883

33 FMSHRC Page 776

LAKE 2009-405
6674680
6674679
6674688

75.400 .
75.400
75.400

1,000.00
1,000.00
1,000.00

TOTAL PENALTY

$3,500.0Q2

For the reasons set forth above, the citations are MODIFIED and VACATED as set
forth above. Mach Mining, LLC is ORDERED TO PAY the Secretary of Labor the sum of
$3,500.00 within 30 days of the date of this decision. 3 Upon payment of the penalty, these
proceedings are DISMISSED.

Richard W. Manning
Administrative Law Judge

Distribution:
Sarah T. White, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
800, Denver, CO 80202-5708 (Certified Mail}
Christopher D. Pence, Esq., Allen, Guthrie & Thomas PLLC, P.O. Box 3394, Charleston, WV
25333-3394 (Certified Mail)

RWM

2

On February 24, 2011, I granted the Secretary's motion for partial settlement and Mach
Mining was ordered to pay penalties totaling $6,409.00 for the seven settled citations in these
dockets.
3

Payment should be sent tO the Mine Safety and Health Administration, U.S.
Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
33 FMSHRC Page 777

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, DC 20001-2021

March 28, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CNIL PENALTY PROCEEDING
Docket No. KENT 2007-309
A.C. No. 15-17165-117359

v.
STILLHOUSE MINING, LLC,
Respondent.

Mine: Mine No. 1

DECISION
Appearances: Thomas A. Grooms, Esq., and Willow E. Fort, Esq.; U.S. Department of Labor,
Office of the Solicitor, Nashville, Tennessee, for Petitioner.
John M. Williams, Esq., and Marco J. Rajkovich, Esq.; Rajkovich, Williams,
Kilpatrick & True, PLLC, Lexington, Kentucky, for Respondent.
Judge Paez

Before:

This case is before me upon the Secretary's Petition for the Assessment of Civil Penalty
pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 ("Mine Act"),
30 U.S.C. § 815 (2006). 1 In dispute are a single section 104(d)(l) citation and three section
104(d)(l) orders issued to Respondent, Stillhouse Mining, LLC ("Stillhouse"), on December 3,
2006, at its Mine No. 1 operation.

I. .Statement of the Case
Citation No. 6665036 charges Stillhouse with violating 30 C.F.R. § 75.313 for failing to
follow mandated procedures after the shutoff of its mine fan. 2 Order No. 6665037 charges
1

In this decision, Volume One of the hearing transcript, Volume Two of the hearing
transcript, Petitioner's exhibits, and Respondent's exhibits are abbreviated as "Trl.," "Tr2.,"
"Ex. P-#," and "Ex. R-#," respectively.
2

After issuing the citation and orders at dispute in this case, the Secretary amended
30 C.F.R. § 75.313. See Refuge Alternatives for Underground Coal Mines, 73 Fed. Reg. 80,656,
80,697 (Dec. 31, 2008) (implementing section 13 of the Mine Improvement and New Emergency
Response Act of2006). Accordingly, unless otherwise indicated, all citations are to the 2007
edition of the Code of Federal Regulations, the provisions of which were in effect at the time of
33 FMSHRC Page 778

Stillhouse with violating 30 C.F .R. § 75.324 for failing to follow specified procedures in
intentionally changing its mine's ventilation by shutting off and turning back on its mine fan.
Order No. 6665038 charges Sti11house with violating 30 C.F.R. § 75.220(a)(l) for failing to
follow its roof control plan. And Order No. 6665039 charges Stillhouse with violating 30 C.F.R.
§ 75.360 for failing to conduct an adequate preshift examination ofits mine. The Secretary
submits that all four alleged violations should be assessed as "flagrant violations" under
30 U.S.C. § 820(b)(2) and proposes a total civil penalty of$761,000.
The consolidated cases, including Docket No. KENT 2007-309 as well as Docket Nos.
KENT 2006-121-R, KENT 2006-122-R, KENT 2006-123-R, KENT 2006-124-R, KENT 2006125-R, KENT 2006-126-R, KENT 2006-128, and KENT 2006-488, were assigned to me on
September 11, 2009. All but Docket No. KENT 2007-309 settled. I held a hearing in Big Stone
Gap, Virginia, on July 27 and 28, 2010.3 The Secretary presented the testimony of two officials
from the Mine Safety and Health Administration ("MSHA")-Daniel Lynn Johnson, a field
office supervisor at MSHA's District 7 office in Harlan, Kentucky, at the time of the issuance of
the citation and orders (Trl. 37:18-39:7), and William Craig Clark, a coal mine inspector (Tr2.
18:18-20, 22:6-9). Stillhouse called no witnesses and rested its case after the Secretary
presented her witnesses. (Tr2. 88:9-16.) The parties submitted their post-hearing briefs on
September 17, 2010. Stillhouse submitted a reply brief on October 4, 2010.
Fort.lie reasons set forth below, Citation No. 6665036 and Order.Nos. 6665037, 6665038,
and 6665039 are AFFIRMED as flagrant violations.

II. Backeround and Findines of Fact
A.

The Operation at Mine No. 1
1.

Coal Extraction at the Mine

Stillhouse operates Mine No. 1, an underground coal mine located near Cumberland,
Kentucky. 4 (Ex. R-3.) Mine No. 1 is kno"Wn as a ''drift mine" because it was created by digging
the alleged violations.
3

The parties stipulated that I have jurisdiction over this matter under the Mine Act. (Tr1.
5:6-8; Resp't Prehr'g Report 1.) Specifically, the parties agreed that Stillhouse was the operator
of Mine No. 1, that Mine No. I is a mine, and that Mine No. l's production affected commerce,
as defined by the Mine Act. (Id.)
4

Appendix A at the end of this decision is a digitally scaled down reproduction of
Respondent's Exhibit 3, the map of Mine No. 1. (Ex. R-3.) The parties stipulated that this map
represents the post-inspection condition of the mine on December 3, 2006. (Trl. 111:8-12.) The
Secretary's witnesses made marks on the map during the hearing. I have inserted boxes around
the areas of the mine at issue in this case and labeled them accordingly.
33 FMSHRC Page 779

straight into the side of the mountain via coal exposed at the surface in an area known as an
"outcrop." (Tri. 176:1-16, Tr2. 63:24-64:17.) Stillhouse uses a large machine called a
continuous miner to dig through the mountain and extract coal. (Trl. 30:6-7.) A continuous
miner makes long cuts through the mountain, some of which are known as "entries." (Trl.
185:5-13.) Entries function like the main streets of a city (id.), as they allow miners, extracted
coal, and ventilating air to pass through the mine (e.g., Trl. 89:16-18, 113:4--15, 114:19-115:9).
Entries are identified by number, e.g., "Entry No. 1," which are assigned from left to right across
the mine's entrance, looking into the mine toward the area where miners are extracting coal.
(Tri. 124:24--125:7.) The continuous miner also makes cuts perpendicular to the entries, known
as "crosscuts." Crosscuts are similar to city cross streets in that they provide access to the mine' s
different entries. (Trl. 185:5-13.) Crosscuts are also identified by number, e.g., "Crosscut No.
30," which are assigned in ascending order, starting at the mine entrance where entryways to the
surface called "portals" are located. (Ex. R-3.) The coal and rock that remain between the
entries and crosscuts form pillars that help support the mine's roof. (Trl. 185:15-17.)
The front of the continuous miner features a rotating drum with metal bits, called a ripper,
which removes coal from the layer of earth containing it, known as the seam. (Tri. 44: 14--24.)
The continuous miner works at the last open crosscut in an area known as the "face." (Trl.
36: 15-17.) This machine is operated by a miner who stands approximately thirty to thirty-five
feet behind the ripper and uses a remote control to advance the apparatus through the mine. (Trl.
237:18-23 8:5.) Once the continuous miner has moved approximately ten to thirty feet and the
area behind it has been cleared, other miners working as roofbolters secure the roof. {Trl.
57:24--58:7.) Stillhouse uses double-headed roofbolters in Mine No. 1, which are operated by
two miners. (Trl. 50:6-11.)
Coal extracted by the continuous miner is loaded into a shuttle car, a piece of
transportation equipment that takes the coal to the belt feeder and dumps it into the belt feeder's
hopper. (TrJ. 29:10-17, 131:5-15.) Miners use another piece of equipment, a scoop, to remove
loose coal from the mine floor and mine ribs and take it back to the face where it is swept up by
the continuous miner's ripper. (Tr1. 50: 19-51 :7.) Collectively, the set of equipment mining coal
at the face is known as the mechanized mining unit, or "MMU." (Tr. 41:20-42:3.) MMU's are
designated by number, such as "002 MMU," and are often referred to by section, such as "002
section." (Tr. 41:5-10, 41:23-42:3, 122:6-8.) On the day the citation and orders in this case
were issued, Stillhouse was operating a continuous miner, two or three shuttle cars, a doubleheaded roof bolter, two scoops, a belt feeder, and belt lines at the 002 MMU. (Trl. 42:10-15.)
The belt haulage system at Mine No. 1 delivers coal out of the mine where it exits
through the belt portals to the surface. (Trl. 114:16-115:9.) Each flap ofbelt along the belt
haulage system consists of a head drive and tailpiece. (Trl. 194:18-23.) The belt runs across the
top of the head drive and tailpiece and comes around the bottom of the unit. (Id.) The head drive
is an electrical installation featuring a motor operated by a controller and a power center that
delivers the appropriate amount of electrical voltage to the head drive. (Tr1. 195 :4--10.)

33 FMSHRC Page 780

The top belt upon which the coal sits has three ''top rollers" along every six feet of belt.
(Trl. 195:11-13.) These groups of rollers form a "V" or "lI'' shape in the belt and prevent coal
from falling off by keeping the coal in the middle of the belt. (Trl. 195:22-196:1.) The belt line
also features single "bottom rollers" located every twelve feet. (Trl. 195:13-15, 196:1-2.)
The belts run through Entry No. 4 through most of the mine. (Ex. R-3.) However, they
do not exit at the main entrance. At Crosscut No. 30, the belts tum, head through a different
section of the mine, and exit at the belt portals across from the main entrance. 5 (Trl. 114:16-23;
Ex. R-3.)
2.

Ventilation System

Stillhouse uses amine fan to circulate fresh air through Mine No. 1. (Trl. 86:14-17.)
The mine fan sits at the mine entrance in the portal to Entry No. 1. (Trl. 87:12-13, 88:1-23.)
The fan blows air out of, rather than into, the mine and is therefore known as an exhausting fan.
(Trl. 86:18-21.) The fan creates suction that pulls fresh air into the mine (Trl. 86:22-25),
circulating it past the places where the miners are working (Trl. 123:17-19), provided that
appropriate controls are in place to direct the air through the mine (Trl. 87:15-23, 133:4-136:3).
The fan moves approximately 230,000 cubic feet of air per minute ("CFM"). (Trl. 88:4-6.)
Entry Nos. 1 and 2 at the entrance to Mine No. 1 serve as courses for air to exit the mine,
which is known as "return air." (Tr 1. 87: 15-16.) Return air is air that has passed the last
working· place in the mine and is accordingly directed o-at of the mine to remove contaminants
such as dust and methane gas. (Trl. 123:20-124:13.) This air cannot be used to ventilate areas
where miners are working or where equipment operates that can spark mine fires, such as the belt
haulage system. (Trl. 123:20-124:2.) To prevent return air from reentering the mine, a tube
brings the return air directly to the mechanical fan, and another tube diverts the return air away
from the min~ portals so the contaminated air does not get circulated through the mine again.
(Trl. 88:1-89:6.) Permanent block stoppings separate Entry Nos. 2 and 3 to ensure that return
air and fresh air do not comingle. (Trl. 87:16-18.)
Entry Nos. 3 and 4 are ventilated by the same current of air. (Trl. 113:10-114:3.) The
fan draws fresh air through these entries, but this air is not used to ventilate the face. (Trl.
87:18-20, 113:11-22.) Entry No. 3 serves as the path for the man trip roadway miners use to
enter and exit the mine. (Trl. 113:11-22.) The belts run through Entry No. 4 until they tum at

5

Appendix Bat the end of this decision shows the location of the belt portals. The
Secretary's witness Daniel Johnson, who inspected Mine No. 1 on December 3, 2006, drew the
arrow shown in the upper left-hand comer of the diagram identifying the belt portals, the location
where the conveyor belt delivers coal out of the mine. (Trl. 114:7-115:14.) The location of the
belt turn at Crosscut No. 30 is shown in Appendix C at the end of this decision. Johnson circled
the location of the belt turn and marked it with his initials. (Trl. 118:6-17.)
33 FMSHRC Page 781

Crosscut No. 30 and run toward belt portals in a separate area of the tnine. (Trl. 114:16-23; Ex.
R-3.)
The remaining entries at the mine entrance provide intake courses for the air drawn in by
the mine fan for use at the face and other areas where the miners are working. (Trl. 87:20-21;
Ex. R-3.) This air is known as "intake air." (Trl. 123:17-19.) Intake air enters the mine through
the No. 4 main intake portal and the No. 5 main intake portal at the mine entrance. (Tr2.
26:10-27:21; Ex. P-15, at 3; Ex. R-3.)
At the time of the alleged violations, the ventilation system at Mine No. 1 was set up to
ventilate two MMU' s located in separate areas of the mine. The main current of air drawn in by
fan was supposed to split at the location of the 003 MMU. (Tr 1. 134: 14-15.) Part of the air was
to flow to the 003 MMU, and the remaining air was to flow to the 002 MMU. (Trl. 134:15-16.)
The 002 MMU, the furthest MMU from the mine entrance, was located approximately 27,000
feet, or about five miles, away from the mine entrance. (Trl. 116:21-24; Ex. P-15, at 10.) As a
result, air circulating through the 002 section was to travel approximately ten miles-five miles
to the section and another five miles to exit the mine. (Trl. 134:7-135:4.)
Maintaining proper ventilation is vital to ensuring a safe environment in the mine.
Circulating fresh air provides oxygen to miners. (Tr1. 147:23-148:1.) The fresh air flow dilutes
methane gas, rendering it harmless, and carries it oufofthe mine, (Trl. 153:13-15.) Methane is
explosive if its concentration is between five to fifteen percent of a given volume of air. (Trl.
47:7-20.) Consequently, operators are required to take precautionary measures when methane
concentrations of at least one percent are detected. 30 C.F.R. § 75.323. Methane enters Mine
No. 1 through a variety of sources. Methane is released when the continuous miner extracts coal
from the seam. (147:14-19.) Methane also naturally seeps out of the coal seam, which is
exposed throug..liout the interior of the mine. (Trl. 146:4-15.) Another coal seam, the Imboden
seam, lies 100 to 120 feet below the Mine No. 1 operation and provides another source of
methane. (Trl. 146:18-147:13.) Additionally, water has a tendency to trap methane and not
allow it to escape aboveground. (Trl. 201 :25-202:4.) Mine areas below the water table have an
increased susceptibility to methane accumulations. The three quarterly measurements of Mine
No. l's methane emission rate taken prior to December 2006 ranged between 128,455 and
187,006 cubic feet of methane per day. 6 (Trl. 105:14-106:22; Ex. P-8.)
The ventilation system also removes dust from the mine. (Trl. 147:23-:148:6.) Dust is
generated by Stillhouse's mining activities as well as by the belts that deliver coal out ofthe
mine. (Id.) Concentrated quantities of methane and airborne coal dust ("float coal dust") can be
explosive. (Trl. 47:7-20, 155:15-156:1.) The presence of float coal dust lowers the
concentration of methane necessary to create an explosive mixture of air. (Id.)

6

Those measurements were 187,006 cubic feet on March 6, 2006; 159,646 cubic feet on
June 19, 2006; and 128,455 cubic feet on September 12, 2006. (Ex. P-8.)
33 FMSHRC Page 782

Air contanlinated with float coal dust and methane cannot be used to ventilate areas with
non-permissible equipment. (Trl. 123:20-124:2.) Non-permissible equipment lacks safeguards
to contain sparks generated by its electrical components. (Tr1. 35:24-36:14.) Exposing nonpennissible machinery to air contaminated with coal dust and methane can cause deadly mine
explosions. (Trl. 30:21-31:10.) In contrast, permissible equipment is designed to contain sparks
generated by its electrical components. {Trl. 34:1-35:23.)
To prevent these.hazards and ensure proper ventilation, each underground mine operator
must develop and follow a ventilation plan that has been approved by MSHA. 30 C.F.R
§ 75.370; (Trl. 95:1-7.) Whenever an operator plans to change its mine's ventilation, such as by
digging new cutouts from an underground area to the surface, it must submit an amendment to its
ventilation plan and receive MSHA's approval. (Trl. 93:20-95:13); 30 C.F.R. § 75.370(d). At
the time of the alleged violations, Stillhouse had an MSHA-approved ventilation plan in place at
Mine No. 1. {Trl. 95:8-10.)
3.

Roof Support

The prevention of roof collapses at Stillhouse' s mining operation is governed by its roof
control plan. (Ex. P-21.) As with Stillhouse's ventilation plan, its roof control plan must be
approved by MSHA. 30 C.F.R. § 75.220. The roof control plan in place at Mine No. 1 at the
time of the alleged violations was MSHA-approved. (Ex. P-21.)
Stillhouse installs roof bolts to secure the ceiling of Mine No. 1. (Trl. 48:24-49:3.) To.
install roof bolts, a miner uses a roof bolting machine to drill a hole into the mine roof. (Trl.
54:22-23.) The minerthen inserts pre-measured packaged resin, basically glue, into the hole,
followed by the actual roof bolt. (Trl. 54:22-25.) As the miner slides the roof bolt into the hole;
he or she checks for "seep back," a small amount of resin flowing out of the hole that lets him or
her know that.the hole is completely full of resin. (Trl. 54:25-55:4.) Completely filling the hole
with resin ensures that the roof bolts are entirely surrounded by glue, which provides anchorage
along the full length of the bolt. (Trl. 55:7-25.) Stillhouse also used cable bolts at Mine No. l,
which are roof bolts made out of stranded steel cable like the kind used to support bridges. (Trl.
75:20-76:3.)
The amount of support necessary to secure the mine roof varies with its strength, as
measured by the roof's hardness. (Trl. 56:5-18.) A roof's hardness is evaluated by how often
the roof bolt operator must change the drilling machine's drill bit; the material comprising harder
roofs wears out the drill bit at a faster rate than the material comprising softer roofs. {Trl.
56:6-15.) Because soft roofs have a less stable composition, they are more likely to collapse
than hard roofs. (Tr2. 72:24-25.) To secure soft roofs, miners must use roof bolts longer than
the ones used in hard roofs in order to reach through the softer layer of roof material into harder
material. {Tr1. 75 :2-8.) If the roof conditions are especially poor and the layers of rock
comprising the ceiling are cracked and separated, then crossbars or steel beams are required to
lend additional strength to the roof. (Trl. 181:22-182:9.) These standing supports feature

33 FMSHRC Page 783

horizontal bars spanning across the width of the mine ceiling that contribute to the prevention of
roof falls. (Tr. 182:5-9.)
The width of the entries in Mine No. 1 also influences the mine roofs strength. The
narrower the entries, the stronger the roof, as smaller entry widths reduce the area of the mine
roof needing support. (Trl. 185:25-186:7.) Underground areas near where the coal is exposed
to the surface, called the outcrop, are known to have much weaker roofs than areas in other parts
of the mine. (Tr1. 186: 17-22.) Developing an area for the miners to cut out to the surface from
underground requires drilling and blasting to expose the coal seam to the surface. {Tr.
186:17-187:2.) These man-made stressors, as well as the natural erosion of the mountain's
outside surface, weaken the mine roof at the outcrop. (Id.) Many times no roof falls occur when
making cuts to the outside. {Trl. 236:25-5.) However, it is not uncommon for the roof to
collapse when cutting from underground to the surface. (Trl. 237:6--10.) Narrowing the entries
reduces the risk of roof falls. The deaths of most underground miners are caused by roof falls, so
maintaining proper roof control is vital to ensuring the health and safety of miners. (Trl.
187:10-18.)

B.

MSHA's Inspection on December 3, 2006
1.

Complaint Prompting the Inspection

At approximately 10:40 p.m. on Saturday, December 2, 2006, the other field supervisor at
MSHA District 7, Robert Rhea, called fellow field supervisor Daniel Johnson with a report from
a miner concerning the roof conditions at Mine No. 1. {Trl. 52:1-16.) The miner had contacted
Rhea at his home, and Rhea recorded the following complaint: "(l) Mine cutting to surface.
Roof broken up and glue running away from rods in holes. Roof very soft and hazardous.
Mining all weekend. Please check tomorrow (Sunday) Dec. 3, 2006.'' (Ex. P-17 .) Johnson was
alarmed at the news that Stillhouse was cutting to the surface, that is, digging from the
underground area out to the surface. (Trl. 58:22-59:1.) At the time, Johnson did not know how
far from the surface Stillhouse was. {Trl. 212:9-12.)
Johnson planned to inspect the mine first thing the next morning on Sunday. {Tr1.
59: 15-19.) As an MSHA supervisor responsible for overseeing Mine No. 1 {Trl. 39:22--40:8),
Johnson had not known Mine No. 1 to produce coal during the third-shift, which ran between
midnight and 7 a.m. (Trl. 59:13--14, 212:5-6). Johnson was aware that miners often perform
tasks other than coal mining during third-shift at Mine No. 1, such as roof bolting. (Trl.
212:13-213:2.) Based on the time of the call, Johnson concluded that the miner had contacted
Rhea at the end of second-shift, so Johnson thought that the miner wanted the mine inspected
before he returned to work the next day. {Trl. 59:11-19.) Johnson did not believe the call raised
concerns of an imminent danger warranting immediate attention, such as a falling mine roof or
gassed off sections of the mine. (Tr. 59:21-60: 10.) Following his conversation with Rhea,

33 FMSHRC Page 784

Johnson called Coal Mine Inspector William Craig Clark and requested that Clark inspect Mine
No. 1 with him on Sunday moming. 7 (Trl. 67:14-16; Tr2. 68:11-69:7.)
At about the same time as Rhea's call to Johnson, the second-shift crew at Mine No. 1
was preparing to leave. (Ex. P-15, at 9-10.) When the second-shift section foreman left the
mine at about 10:45 p.m., the third-shift crew had yet to go underground. (Id.) At Entry Nos. 1
and 2 in the 002 section, where Stil1house was cutting to the surface, the miners were
approximately fourteen to twenty-two feet from breaking through to the outside of the mountain.
(Ex. P-15, at 9.)
2.

The Inspectors' Arrival - Mine Fan Status

Johnson arrived at Mine No. 1 at approximately 6: 10 am. on Sunday, prior to the start of
first-shift. (Trl. 91:5-8; Ex. P-16, at 1.) Johnson spoke with Ray Young, a roof bolt operator
whom Johnson had known for a number of years. (Trl. 74:9-13.) Young explained to Johnson
that he had been a roof bolt operator on the 002 section during the first-shift and that the roof on
this section was soft. (Trl. 74:13-17.) Rather than standard four-foot roof bolts, Stillhouse had
been installing six-foot bolts and cable bolts, and Young believed that adequate roof support was
being provided. (Trl. 74:17-20. See Ex. P-21, at 5 (setting forth the minimum roof bolt
lengths).)
After speaking with Young, Johnson approached the mine office and realized he did not
hear the loud noise of the mine fan. {Trl. 76:4-14.) Noticing that the mine fan was off: Johnson
went to it and checked the fan chart documenting the fan's operational activity. (Trl. 76:15-17.)
Johmon's examination of the chart revealed the fan had been off for several hours. (Trl.
76:16--18.)
Clark,.who arrived a short time after Johnson (Trl. 67:23--25; Tr2. 23:2-3), immediately
noticed the mine fan was off as well (Tr2. 22:14-18). Clark also checked the fan chart and noted
that the mine fan had been shut off. {Trl. 80:9-15; Tr2. 23:22-24:1; Ex. P-15, at 1.) Clark
observed that the fan blades were still.8 (Tr2. 47:10-16.) Moreover, Clark did not see anything
7

Clark was not the inspector assigned to Mine No. 1, but he had been previously assigned
to the mine and was very familiar with it. (Trl. 67:8-17.) The then-current inspector assigned to
Mine No. 1 was out of town at the time. (Trl. 67:8--14.)
8

It is unclear from Clark's testimony whether he was at the mine portals while the mine
fan was off. In explaining why he did not measure the air movement at the mine fan prior to the
fan being turned back on, Clark testified "I was actually going over to check the intake portals, to
see if there was any type of air movement at all." (Tr2. 24:13-18.) However, Clark also testified
that he left the portals after he heard the fan start back up: "Then I heard the fan start, and I went
back, left the portals and went back to see [who turned on the fan] ...." (Tr2. 24:21-25:1.)
Because Clark was at the portals when the fan came back on, he had to be at the portals for some
period of time before the fan restarted.

33 FMSHRC Page 785

blowing in the portals, though he speculated on cross-examination that wind outside the portals
could have been blowing an object hanging in one of them. (Tr2. 47:17--48:1.)
The fan chart was admitted at the hearing as Petitioner's Exhibit 7. (Trl. 12:8-10.) The
chart tracks the operational status of the mine fan by plotting the pressure of the fan over time
along a rotating circular graph. (Trl. 78:2-10; Ex. P-7.) The chart reveals the fanhad been shut
off for six hours while miners were underground {Tr1. 78: 18-19), and the parties stipulated to
this fact (Trl. 5:21-23; Resp't Prehr'g Report 2). The parties further stipulated that the fan was
turned off at some point between midnight and 12:30 a.m., Sunday, December 3, 2006, after the
miners had made their first cut to the surface at the 002 section. (Tr2. 17:2-21.)
Remembering that the mine fan sounds an alarm when turned off, Johnson questioned the
security guard, who said the fan was shut off at about 12 :30 a.m. by Eugene Johnson. (Tr1.
78:20-79:14.) Daniel Johnson asked the security guard as to who instructed Eugene Johnson to
tum off the fan, but the guard did not know. (Ex. P-16, at3.) At the hearing, Daniel Johnson
stated that someone in Stillhouse's management instructed Eugene Johnson to tum off the mine
fan. (Trl. 149:6--11.) Through their interviews with Stillhouse's miners, MSHA's Daniel
Johnson and Clark were told that Eugene Johnson had brought his children to watch the miners
cut to the surface from underground. (Trl. 149:1-5; Ex. P-15, at 10, 16.)
After discovering that the fan was off, Daniel Johnson asked a miner standing outside the
mine to telephone the miners working underground. (Trl. 79:22-80:7.) The miner requested to
speak with the foreman, and Johnny Osborne answered. (Trl. 80:25-81:3.) At the hearing,
Johnson recalled saying, "'Johnny, do you know the fan's off?"' {Trl. 81:17.) Johnson testified
that Osborne said, '"I've got good air coming in [from the cutout]"' to which Johnson replied,
'"Well, Johnny, the fan's off, the fan's been off for a long time. Get your mine--, get your men
and come out of the mines."' (Trl. 81:18-21.) Osborne also told Johnson that the miners had
been cutting out to the surface. (Trl. 82:12-13; Ex. P-15, at 1.) Johnson asked where he could
find Ira Sergent, the third-shift foreman. {Trl. 82:18-24.) Osborne told Johnson that Sergent
had been working.on the 002 section and was on his way out of the mine. {Trl. 82:24-83:12.)
Osborne also said Sergent had been gone for a couple of hours, which did not surprise Johnson.
who thought Sergent might be conducting a preshift inspection. (Trl. 82:24-83:6.)
After speaking with Osborne, MSHA Field Office Supervisor Daniel Johnson called his
supervisor at MSHA, John Pyles, from the mine office based on what he perceived to be the

Further evidence helps resolve Clark's testimony. As noted above, the evidence
establishes Clark checked the mine fan chart when he realized that the fan was off, the mine chart
was located at the fan, and the fan was located at the mine entrance. Furthermore, Johnson
testified that the fan chart was not changed out of the fan until after the fan was restarted. (Trl.
78:10-12.) Because Clark checked the mine fan chart while the fan was off and the chart was
located at the fan at that time, Clark visited both the portals and the fan while the fan was off.
33 FMSHRC Page 786

serious nature of the situation. (Trl. 82:3-6, 83:24-84:1.) During that conversation and about
ten to twenty minutes after speaking with Osborne, Johnson noticed a man trip, a diesel powered
personal transportation device, emerge from the mine carrying Sergent. (Trl. 84:3-85:17;
100:6--9.) Johnson then heard the mine fan start. (Trl. 85:10-11.) Following his conversation
with Pyles, Johnson spoke with Sergent, who had turned on the fan. (Trl. 85:14-17; Tr2.
24:10-12.) Johnson testified that he remembered asking, '"ha, did you know the fan was off?"'
(Tr1. 85: 19-20.) Johnson believed that Sergent reacted evasively to his question, stating
something to the effect of, "'Well, I, I didn't tum it off, and I wouldn't have turned it off. I
would have just opened the doors."' (Trl. 85:21-23.) Opening the fan doors "short circuits" the
air flow by allowing the fan to draw air from the area surrounding it rather than allowing the fan
to pull air through its usual circuitous course through the mine. (Trl. 85:25-86:7 .) The result of
opening the fan doors is lower airflow through the mine. (Trl. 85:25-86:7.) Had Stillhouse
been running the fan at full capacity when it cut through to the surface, it would have created
improper airflow in the mine, as discussed below. See discussion infra Part Il.B.4.
Clark's notes from the inspection also document statements made by Sergent when he
emerged from the mine. (Ex. P-15, at 4-5.) Sergent said he did not know who turned off the
fan. (Id. at 4.) Sergent also said he was going to open the fan doors, but the miners on the
section said it had been taken care of (Id.) According to Sergent, the ventilation had not been
hurt. (Id.) As noted by Clark, Sergent stated that when he checked the ventilation on the 002
section he found an airflow rate of 40,000 CFM. (Id. at 5.) Sergent also told Clark that he had
gone to the 003 section and found plenty of air movement from natural ventilatioa (Id.)
Minutes after Johnson's conversation with Sergent, Mine Superintendent Lonnie Moore
arrived to work at the mine. (Trl. 90:10-25.) Moore asked Johnson whether anyone was hurt.
(Trl. 91 :9-11.) Johnson said "'No, there, there's no one hurt•... Did you know your mine fan
was off all night?"' (Trl. 91:12-13.) According to Johnson, Moore replied along the lines of
"'[w]ell, they,tumed it back on after they cut, after they cut through, didn't they?"' (Trl.
91: 14-16.) Johnson told Moore that was not the case, and the fan had been off for six hours.
(Trl. 91 :16--18.) Moore offered no further explanation of the miners' activity at the cutout.
(Trl. 97:4-9.) Johnson testified that Moore did not seem surprised by the fan shutoff. (Trl.
96:25-97:3.) Moore stopped talking to Johnson after this exchange. (Trl. 91:21-22.)
Approximately fifteen to thirty minutes after Sergent had restarted the fan, Clark took
measurements of the airflow at the intakes. (Tr2. 25:5-16.) Clark found that air was flowing
into the No. 4 main intake portal at 54,180 CFM and into the No. 5 main intake portal at 41,625
CFM, for a total rate at the two intake portals of approximately 96,000 CFM. (Tr2. 27: 14-21,
28:7-11; Ex. P-15, at 3.) Clark's review of the weekly examiner's record showed that over the
prior few weeks, the total rate of air flowing into the two intake portals had been between
203,000 and 213,000 CFM. (Tr2. 28:3-6.) Additionally, Clark found that air was flowing into
the entryfor the neutral roadway at a rate of30,523 CFM. (Tr2. 29:14-19; Ex. P-15, at 3.) Clark
did not factor this air current into the 96,000 CFM intake rate because the neutral roadway is a
complete, separate entry under Stillhouse's MSHA-approved ventilation plan (Tr2. 29:20-25),

33 FMSHRC Page 787

and air flowing through it does not ventilate the face (Trl. 113:10-22). Rather, this air current
ventilates the man trip roadway and the belt entries. (Trl. 113:10-114:3.) Clark also took bottle
samples at the mine fan to check for methane. (Tr2. 48: 16-19; Ex. P-16, at 6.) The samples
were sent for analysis, but the resulting report indicated that the bottles were empty. (Tr2.
49:15-18.)
Johnson and Clark determined that seven miners were underground when Sergent turned
the fan back on. (Trl.97:17-100:4; Ex. P-15, at 2.) The miners exited the mine about an hour
after Johnson ordered Osborne to evacuate. (Trl. 100:21-24, 101:11-13; Ex. P-15, at 3-4.) In
order to clear any gases that may have accumulated in the mine while the fan was off, Johnson let
the mine fan run for about an hour after it had been turned on and the miners had exited the mine.
(Trl. 102:2-16.) Johnson was to accompany first-shift Section Foreman Philip Gilbert while
Gilbert performed a preshift examination from the mouth of the 003 section to the 002 section.
(Trl. 109:19-21, 248:20-25.) Clark was to accompany miner Earl Gilliam while Gilliam
conducted a preshift examination from the portals to the 003 section. (Trl. 109: 17-19,
248:20-25.) These preshift examinations were necessary in light of the fact that the fan had been
shut off for six hours. (Trl. 109:22-110:1.) Johnson, Clark, Gilbert, and Gilliam traveled
through the mine via the main man trip roadwayin Entry No. 3.9 (Trl. 112:23-113: 15.)
3.

Preshift of the Wet Area

The preshift investigation at issue in this case concerns a part of the mine known as the
"Wet Area." 10 (Trl. 189:15-16.) A creek passes over this location (Tri. 201 :23), and the Wet
Area's name derives from the fact that it is very wet there, as it lies under the water table (Trl.
196:14-16, 202:5-12). The Wet Area spans from Crosscut No. 30 in the main entryway-the
thirtieth crosscut from the mine entrance-up through an area separate from the main entries that
goes toward the belt portals. (Trl. 189:16-20.) At Crosscut No. 30, the belts turn from Entry
No. 4 and h~ad out toward the belt portals through a separate area of the mine. (Trl. 189:17-20.)
Four coal belts pass through the Wet Area on the way to delivering coal to the belt
portals. (Trl. 191 :22-25.) As the belts go from Crosscut No. 30 and up through the Wet Area,
they keep turning. (Trl. 192:5-7.) Because the belts must lie straight, a transfer point is located
at each place where the direction of the belts shifts. (Trl. 192:7-9.) Coal is moved from one belt
to another at these points. (Trl.. 192:11-15.) Each transfer point features a belt drive unit with
9

Appendix B at the end of this decision identifies the location where the events discussed

in this section took place. (Ex. R-3.) Entry No. 1 is on the far right of the illustration, Entry No.
2 is to the left of it, and so on. Entry No. 3 is identified on the map as "Travelway Neutral." (Id.)
10

The portion of the mine map in Appendix C at the end of this decision shows the
location of the Wet Area along with Johnson's notations from the hearing. Johnson identified
the Wet Area by marking the mine map with an arrow and writing the last four digits of the order
concerning the preshift examination, 5039. (Trl. 189:21-190:6; Ex. R-3.)

33 FMSHRC Page 788

one or two motors that pull the belt. (Trl. 192:18-25.) The transfer points also have a belt
controller with a circuit breaker that allows the belt to go at different speeds and directions. (Trl.
192:25-193:4.) These areas have transformers that adjust the voltage to deliver the appropriate
amount of power to the equipment. (Trl. 193 :4-17.) This equipment was non-permissible and
had the capability to spark a mine explosion should it have been exposed to air contaminated
with methane or float coal dust. (Trl. 191:9-194:17.)
When Clark and Gilliam arrived at the Wet Area, Clark found no dates, times, or initials
at the belt power centers for the No. 1, No. 2, No. 3, or No. 4 belts or for the electrical
distribution boxes. (Tr2. 32:13-19, 33:4-9.) Clark determined that no preshift examination had
been performed in these areas. (Id.) Clark noted that the last date, times, and initials were from
December 1, meaning that preshift examinations were not performed prior to all three shifts on
December 2. (Tr2. 33:11-18, 33:24-34:7.) When Clark entered the mine, he thought that the
power was off: as he was not able to hear the mine's underground electrical equipment from the
surface. (Tr2. 57:15-19.) However, as Clark inspected the belt line in the Wet Area, he
discovered that the power was still on (Tr2. 57:20-23) and noted that the belts were still running
(Ex. P-15, at 5). 11 Clark continued his examination of the area and did not tum off the power, in
spite of the regulation forbidding the restoration of electrical power to areas affected by a
ventilation change, because he believed that any methane in the mine bad been cleared out, as he
had let the fan run for an hour before entering the mine. (Tr2. 57:2-58:7 .)
After the completion of the preshift examination, Clark and Gilliam returned to the main
entries and traveled to the 002 section, stopping at the 003 section along the way. (Tr2.
34:16-20, 35:3-8.) At the 003 section, Clark issued a citation for coal accumulations. (Ex. P15, at 6.) He found float coal dust on the mine roof and the mine floor. (Id.) The mine floor had
accumulations of loose coal of up to ten inches thick. (Id.) Clark found that air was moving in
the proper direction in the 003 section, and he detected no methane. (Id.) Proper preshift
examinations pad been conducted in the 003 section, as well. (Id.)
4.

Air Reversal at the Intake/Return Split

Meanwhile, as Johnson and Gilbert traveled to the 002 section, their man trip experienced
mechanical difficulties at the mouth of the 003 section, near Crosscut Nos. 167 and 168, where
the preshift examination was going to begin anyway. (Tri. 119:22-23, 121 :4-23.) At the time,
Johnson bad been informed by Sergent that the 003 section was not being mined. (Tri.
122:9-14.) As the preshift examination began, Johnson noticed that the air was coming the
wrong way. (Trl. 122:25-123:3.) Instead of blowing at his back toward the 002 section, the air
11

Johnson testified that he was unsure whether the belts were running between the time
he entered the mine and the time he ordered the power to be shut off. (Trl. 203:5-9.) Clark's
notes from the inspection, however, noted that the belts were running. (Ex. P-15, at 5.) Because
Clark's notes were written during the inspection itself. I find that the belts were running when
Clark and Johnson entered the mine.
33 FMSHRC Page 789

was blowing directly in Johnson's face. (Trl. 123:3--6.) The ventilation had reversed. (Trl.
123:9.)
Specifically, in this part of the mine, fresh air was supposed to course through Entry Nos.
3 through 6 toward the face, and Entry Nos. 1 and 2 were to function as courses for return air.
(Tr 1. 125: 11-18.) Instead, return air from the 002 section was blowing through the man trip
roadways in Entry No. 3 and the belt lines in Entry No. 4 at a rate of 15,000 CFM toward the
mine entrance. (Trl. 127:14-128:1.) Fresh air should have been coursing through Entry Nos. 3
and 4 toward the 002 section. Moreover, the fresh air that should have been flowing through the
entries for use at the working faces had come to a standstill. (Trl. 127:8-13.) Johnson did not
find any methane in this area. (Trl. 128:2--6.) Johnson called Moore and told him to cut the
power going to the 002 section because the air was reversed.· (Trl. 128:7-15.) Cutting the
power required sending a certified person underground to Crosscut No. 77. (Trl. 128:19-129:4.)
Once Johnson reached the 002 section, he confirmed that the power had been shut off. 12 (Tr1.
129:5-19.)
. 5.

002 Section - Air Flow and Mining Activity

When Johnson arrived at the 002 section with Gilbert, in an area known as the Maggard
Branch (Tri. 115:23-116:5), Johnson discovered that Entry No; 1 was cut out to the surface but
the mine roof was not bolted back, and Entry No. 2 was cut out to the surface but the roof had
fallen in. (Tri. 129:22-130:3.) The continuous miner was located in Entry No. 3; which was
partially cut. (Trl. 130: 14-23.) Johnson observed a double-headed roof bolter, two or three
shuttle cars, some of which were loaded, two scoops, the belt feeder, which was partially loaded,
and the belt lines. (Trl. 42:12-15, 130:24-131:4.) The belt feeder was located approximately
four or five crosscuts from the face. (Trl. 131: 19-22.) Stillhouse had been extracting coal in the
section. (Trl. 130:6-7.) The belt scale report, which measures the output of Mine No. 1, shows
that Stillhouse mined nearly seven hundred tons of coal and other material while the fan was
off. 13 (Trl. 107:24-108:19; Ex. P-9.) That coal came exclusively from the 002 section, as the
003 section was inactive during that time period. (Trl. 122:9-14.)

12

Appendix D at the end of this decision shows the mouth of the 003 section where
Johnson first determined the air flow had reversed. (Trl. 119:20--120:7.) During the hearing,
Johnson circled the location where he stopped and marked it with his initials. (Id.) Johnson also
marked the location of the 003 MMU. (Trl. 136:4-15.)
13

The time period of the report actually spans from 12 a.m. to 7 a.m. (Ex. P-9.) The fan
was turned off at some point between midnight and 12:30 a.m. (Tr2. 17:2-21 ), and mining
without the fan continued until Johnson discovered the fan was off and ordered Osborne and his
crew out of the mine (Tr 1. 79 :22-81 :21 ). Thus, virtually all of the coal shown on the belt scale
report had to have been produced while the fan was off.
33 FMSHRC Page 790

As for the ventilation conditions, Johnson found that air was flowing into the mine from

the cutouts to the surface in Entry Nos. 1 and 2 of the 002 section. (Trl. 132:24-133:3.)
Johnson testified that the air coming from outside the mine was insufficient to ventilate the mine.
(Trl. 133:4-7.) The air current from these entries reversed the air flow in the belt entries, which
prevented air from moving in the proper direction. (Trl. 133:9-14.) Rather than flowing from
the main portals to the 002 section and back, air was entering the cutouts and going toward the
003 section. (Trl. 135:20-24.) Johnson explained that the air traveled in this direction because
the distance from "the cutouts to the 003 MMU is much shorter than the distance from the
original portals to the 003 MMU." (Trl. 135:25-136:2.) In other words, the exhaust current
generated by the fan at the entrance was pulling air from the cutouts at the 002 section straight to
the main portals, instead of from the main portals to the 002 section and back. (Trl. 175:22-'-25.)
The mine was insufficiently ventilated because air was uncontrollably flowing from the cutouts
through the 002 section in the wrong direction. (Trl. 133:9-15.)
Clark and Gilliam arrived at the 002 section after Johnson and Gilbert. (Tr2. 35 :2-8,
35:15-20.) Clark measured the direction of the airflow in the entries using chemical smoke.
(Tr2. 36:1-4; Ex. P-15, at 6-7.) Clark determined that return air was flowing from the 002
section back toward the mine entrance through the man trip roadway entry, the belt entry, and the
intake entries. (Id.) Indeed, the airflow had reversed so that potentially contaminated air passed
through areas where miners worked and equipment operated. Intake air should have been
flowing toward the working face, sweeping across the area, and then exiting out the return air
course. (Tr2. 38:19-23.) Clark detected no methane in the area. 14 (Tr2. 39:10-15.)
6.

· 002 Section- Roof Control

In addition to investigating the mining activity and air flow at the 002 section, MSHA's
Johnson and Clark analyzed the roof conditions. They observed the roof to ensure nothing would
fall as theyworke,d. (Trl. 132:18-21; Tr2. 41:24-42:4.) Their observations corroborated those
in the miner's telephone complaint prompting the investigation. (Tri. 179:14-18.) The mine
roof was soft. (Trl. 179:16-17.) Glue was "running away from the ... rods" (Trl. 179:17-18),
meaning that the roof bolts were not fully anchored into the mine ceiling (Trl. 55:8-25). Roof
fractures were discovered, and a roof fall had occurred in Entry No. 2, spanning the entire width
of the entry and measuring about four-feet thick. (Trl. 180:1-5; Ex. P-15, at 9.) The roof had
sagged in numerous places (Trl. 180:6), and water was coming from the mine roof in several
locations (Ex. P-15, at 9). Stillhouse had installed roofbolts in the entries of the 002 section, and
Johnson testified that Stillhouse's installation of the roof bolts was in compliance with the roof
control plan, in that the bolts were of the proper length and were properly spaced. (Trl.

14

Appendix E at the end of this decision shows the area of the Maggard Branch cutouts
and the 002 section. At the hearing, Clark circled the location of the 002 section and marked it
with his initials. (Tr2. 36:5-37:8.) Clark drew an arrow to the last open crosscut, labeling it "Air
Measurements," and testified that he took the chemical smoke measurements across the area to
detect the direction of the airflow. (Id.)
33 FMSHRC Page 791

244:7-14.) The roof bolt installations on the 002 section included ten-foot cable bolts in all five
entries. {Tr2. 74:17-75:6; Ex. P-15, at 9.)
Johnson and Clark found cracks at twenty-four and forty-nine inches in Entry No. 3.
{Trl. 180:6-12; Ex. P-15, at 9.) Johnson and Clark measured the cracks by inserting a standard
metal measuring tape into a test hole and checking where the lip at the edge of the tape caught on
the rock. (Trl. 180:6-12.) Johnson acknowledged that the cable bolts supporting the cracks
appeared to be functioning properly. {Trl. 245:15-246:11.)
Additionally, Johnson and Clark observed "hill seams" in Entry No. 3. {Trl. 180:22-24;
Ex. P-15, at 9.) Hill seams· are natural vertical cracks in the layers of rock, or "strata," above the
mine. which create free areas where the roof can fall. (Trl. 181:1-7.) Stillhouse had used thin
meta] straps to support the hill seams rather than the minimum T2 steel channel dictated by its
MSHA-approved roof control plan. {Tr2. 45:5-18.) Clark issued a citation for insufficiently
supported hill seams in Entry No. 3, which is not at issue in this case. (Id.) At the hearing,
Johnson noted that because Stillhouse used straps to secure the hill seams, it actually should have
narrowed the width of Entry No. 3 to sixteen feet. (Trl. 244:23-245:14, 261:4-14.)
Johnson and Clark checked the width of the entries near the "outcrop," the area Stillhouse
had created for the cutouts where coal was exposed to the surface. (Trl. 258:15-259:11; Tr2.
43:25-44:6, 64:5-13.) Johnson and Clark testified that Stillhouse's roof control plan required
the widths of the entries to be no wider than 18 feet within 150 feet of the outcrop. (Trl.
258:9-14; Tr2. 43:9--44:4.) Prior to measuring the entries, Johnson could tell by naked eye that
the entries exceeded eighteen feet. (Trl. 241:12-24.) Johnson and Clark measured the width of
the entries at the Maggard Branch cutouts between the last open crosscut and the end of those
entries. (Trl. 187:19-188:8; Tr2. 41 :14-18; Ex. P-15, at 11.) Clark used the foreman's mount, a
device showing distances underground, to confirm that this area was within 150 feet of the
outcrop. (Tr2. 44:14-18.) Clark further noted that Philip Gilbert's mine map showed the
distance from the last open crosscut to the surface was 110 feet. (Ex. P-15, at 11.)
Clark recorded in his notes the measurements of the entry widths in the outcrop area.
(Trl. 188:3-5; Tr2. 42:7-43:8; Ex. P-15, at 11.) He and Johnson determined that Entry No. 1
was between 17.5 feet and 20 feet wide; Entry No. 2 was between 18.5 feet and 19.5 feet wide;
Entry No. 3 was between 19.l feet and 20 feet wide; Entry No. 4 was between 17.1 feet and 19.6
feet wide; and Entry No. 5 was between 18.3 feet and 18.9 feet wide. (Ex. P-15, at 11.)
During cross examination, Johnson commented on whether the roof fall in Entry No. 2
could have been prevented had Stillhouse complied with its roof control plan's eighteen-foot
width requirement. According to Johnson, the roof fall would have occurred even if the width of
Entry No. 2 was eighteen feet. (Tr 1. 236:8-16.) Once Johnson and Clark measured the width of
the entries in the 002 section, they required Stillhouse to install posts to supplement the roof in
the outcrop area of the 002 section to abate the violation. {Trl. 240:12-21.)

33 FMSHRC Page 792

C.

MSHA's Other Communications With Stillhouse

At the hearing, Johnson and Clark recalled conversations with Stillhouse's management
about the company's intent to cut out to the surface prior to December 3, 2006. Johnson became
aware ofStillhouse's intent sometime in January or February 2006. (Trl. 92:12-23.) Johnson
reviewed Stillhouse's mining activity and mine maps, and asked Lonnie Moore, the mine
superintendent, whether he planned to cut out to the surface. (Trl. 93:2-13.) Moore confirmed
that he planned to do so. (Trl. 93:12-13.) Johnson told Moore that he needed to submit a
ventilation plan for the cutouts because, in his opinion, making the cutouts would "destroy" the
mine's ventilation and cut the mine's intake by half (Trl. 96:1-18.) Johnson predicted that the
cutouts would short-circuit the airflow through the mine by allowing the fan to pull air through
the cutouts in the 002 section instead of through the main intake portals at the mine entrance.
(Trl. 104:6-17.) At that time, Johnson did not believe that the cutouts would send air from the
002 section in the wrong direction toward the 003 section. (Trl. 104:17-18.) Johnson did not
recall how Moore replied to his statement about the ventilation plan. (Trl. 96:19-22.) Prior to
the December 3, 2006, Stillhouse never filed with MSHA an amendment to its ventilation plan
describing how it would ventilate the mine after cutting to the surface in the 002 section. (Trl.
95:14-16.)
Clark also testified about Stillhouse's plans to cut to the surface at the 002 section. Clark
was aware that Stillhouse had dug an area called a "box cut" on the surface of the Maggard
Branch for the 002 section continuous miner to emerge from the uriderground. (Tr2. 62:13-23.)
As early as September 2006, Clark spoke with Moore about Stillhouse's intent to cut to the
surface at that location. (Tr2. 62:25-63:7.)
D.

Citation and Orders at Issue in this Proceeding
1.

Citation No. 6665036 :- Failure to Follow Mandated Procedures After
Shutoff of Mine Fan

Clark issued Citation No. 6665036 under·section 104(d}(l} of the Mine Act for a
violation of30 C.F.R. § 75.313. 15 (Ex. P-11.) The citation's narrative states:
Evidence from the fan recording chart and witness statement indicates that the
main mine fan had been turned off for over 6 hours while miners were
underground running coal making a cut through to the surface. When I arrived on
site at 06:20 the fan was off and 8 miners were underground. Evidence
underground indicated they were producing coal from the 002 section located
26,900 feet underground from the main portal. This mine often produces 100,000
plus cubic feet of methane in 24 hours. The main mine fan had been stopped so
the 002 section could cut out side [sic] because when the cut through was made
15

The parties stipulated that the citation and orders in dispute were issued on the dates
indicated on each of the forms generated by Clark. (Trl. 5:6-9; Resp't Prehr'g Report 1.)
33 FMSHRC Page 793

the ventilation system was interrupted causing the ventilation current in the intake
airway entries, belt entry, and neutral roadway entry to reverse direction of travel
after the fan was restarted. The main mine fan had been intentionally stopped at
00:30 on Sunday morning.
(Id. at 1-2.) Clark asserted that eight people were affected by this condition and that fatal
injuries were highly likely. (Id. at 1.) Clark charged Stillhouse with reckless disregard in
violating § 75.313 and determined that the alleged violation was significant and substantial
("S&S"). 16 (Id.)

2.

Order No. 6665037 - Failure to Follow Mandated Procedures in
Intentionally Changing Mine's Ventilation by Shutting Off Mine Fan

Clark issued Order No. 6665037 under section 104(d)(l) of the Mine Act for a violation
of30 C.F.R. § 75.324. (Ex. P-12.) The order's narrative states:
The operator made a major change in ventilation on the 002-0 MMU while miners
were underground and power was on underground. The operator stopped the
main mine fan for over 6 hours while miners were underground and cut the 002-0
MMU to the surface. Two entries were mined to the surface and the main mine
fan was restarted with power underground and 7 miners were left underground
when 1 miner exited the mine and restarted the fan. The 002-0 MMU intake
airway entries, belt entry, and neutral roadway entry experienced a reversal of the
direction of the ventilation current when the main mine fan was restarted. This
mine is 26,900 feet deep to the point of the cut through and often produces
100,000 plus cubic feet of methane i.~ 24 hours as indicated by air bottle samples.
The operator did not submit a plan to the District Manager for the cut out [sic] to
the surface and made the cut out [sic] between midnight and 06 :20 Sunday
mommg.
(Id. at 1-2.) Clark asserted that eight people were affected by this condition and that fatal
injuries were highly likely. (Id. at 1.) Clark charged Stillhouse with reckless disregard in
violating§ 75.324 and determined that the alleged violation was S&S. (Id.)

3.

Order No. 6665038-Failure to Follow Roof Control Plan in 002 Section

Clark issued Order No. 6665038 under section 104(d)(l) of the Mine Act for a violation
of30 C.F.R. § 75.220(a)(l). (Ex. P-13.) The order's narrative states:

16

The S&S terminology is taken from section 104(d)(l) of the Mine Act, which
distinguishes as more serious any violation that "could significantly and substantially contribute
to the cause and effect of a ... mine safety or health hazard." 30 U.S.C. § 814(d)(l).
33 FMSHRC Page 794

The mine operator is not following the approved roof control plan for the 002-0
MMU. The 002-0 MMU had cut out to the surface in #1 and #2 entries and had
mined #3, #4, and #5 entries to within 40 feet of the surface and had not followed
the initial development part of the approved roof control plan. The initial
development part requires when mining within 150 feet of the out crop [sic] the
entry widths be limited to 18 feet. Entries were measured to be 18.5 feet to 20.5
feet wide in all 5 headings and the last open cross cut. This area also had hill
seams and cracks in the mine roof at 24 inches and 49 inches in the #3 entry, and
water coming out of the mine roof in several locations. The #2 entry had a roof
fall approximately 4 feet thick when cut to the surface.

(Id. at 1.) Clark asserted that two people were affected by this condition and that fatal injuries
were highly likely. (Id.) Clark charged Stillhouse with reckless disregard in violating
§ 75.220(a)(l) and determined that the alleged violation was S&S. (Id.)
4.

Order No. 6665039 - Failure to Conduct Adequate Preshift of Wet Area

Clark issued Order No. 6665039 under section 104(d)(l) of the Mine Act for a violation
of 30 C.F.R. § 75.360. (Ex. P-14.) The order's narrative states:
An adequate pre-shift examination was not made of the entire mine before miners
entered the mine to run coal. The last date[,] time and initials found on the main
line belt power boxes number 1, 2, 3, and 4 was 12/1/2006 at 11 :05 am. The mine
ran coal both sections on 12/2/2006 1st and 2nd shifts and 12/3/2006 on 002
MMU on 3rd shift. This is a [sic] isolated part of the mine where the main line
belts run away from the rest of the mine toward the prep plant. Time[,] date and
initials were found at the outby power centers through the regularly traveled part
ofthemine.

(Id.) Clark asserted that eight people were affected by this condition and that permanently
disabling injuries were highly likely. (Id.) Clark charged Stillhouse with reckless disregard in
violating§ 75.360 and determined that the alleged violation was S&S. (Jd.)
E.

Criminal Pleas of Stillhouse Employees for Violation ofMandatozy Safety Standard

Three Stillhouse supervisory employees--Ira Sergent, Johnny Osborne, and Reggie
Raleigh-each pied guilty to one criminal count under 30 U.S.C. § 820(c), for knowingly
authorizing, ordering or carrying out a violation of a mandatory health or safety standard for
underground coal mines under federal mining laws, and 18 U.S.C. § 2, for aiding and abetting.
(Ex. P-4; P-5; P-6.) The elements of the offense admitted by the defendants that are relevant to
this decision are:

33 FMSHRC Page 795

(a)

That at all times relevant to this Indictment, the Defendant was an agent of
Stillhouse Mining LLC, operator of Stillhouse Mining No. 1 Mine, in
Harlan County, Kentucky, in that the Defendant was charged with
responsibility for the operation of all or a part of the mine, and (being a
foreman) he supervised the miners at the mine;

(b)

That on or about December 3, 2006, the main mine fan was stopped in
excess of 15 minutes (approximately six hours) and the miners were not
withdrawn from the mine, and the Defendant authorized, ordered or
carried out such violation, or aided and abetted his co-defendants in so
doing;

(c)

That in committing the charged mine safety violation the Defendant's
actions were deliberate and intentional (which is to say not accidental), or
that he recklessly disregarded the requirements of the mine safety
standard;

(Ex. P-4, at 2; Ex. P-5, at 2; Ex. P-6, at 2.) These facts underlie a violation of 30 C.F.R.
§ 75.313(c)(l), stating: "If ventilation is not restored within 15 minutes after a main mine fan
stops-(1) Everyone shall be withdrawn from the mine." (Ex. P-1, at 2.) The parties stipulated
to the fact that Sergent, Osborne, and Raleigh were indicted and entered the above-noted guilty
pleas and that the pleas pertained to Citation No. 6665036. (Trl. 5:9--21; Resp't Prehr'g Report
2.)
F.

Credibility of the Secretary's Witnesses
1.

Daniel Johnson, Field Office Supervisor, MSHA District 7 Field Office

The Secretary's witness Daniel Johnson was the field office supervisor ofMSHA's
District 7 field office in Harlan, Kentucky, at the time of the issuance of the citation and orders in
this case. (Trl. 37:18-39:7.) Johnson entered the underground coal mining industry
immediately after high school when he began working at the Blue Diamond Coal Company's
Scotia Mines in 1970. (Trl. 27:2-6.) Starting out as an apprentice, Johnson eventually became a
section foreman. (Trl. 27:6-8.) As a section foreman, Johnson supervised a crew of men on
underground coal production and was responsible for ensuring their health and safety. (Trl.
28:5-8, 25:18-20.) Johnson was charged with instituting the ventilation plan in his area of the
mine, which meant ensuring that the proper amount of air was being delivered to where his crew
was producing coal. (Trl. 28:20--25.) Johnson was a section foreman at Blue Diamond from
1974 to 1978. (Tri. 30:10--13.) Besides a short seven-month stint as a miner at U.S. Steel
following the explosion at the Scotia Mines, Johnson remained at Blue Diamond until 1982
when he took a position with MSHA. (Trl. 37:4-17.)

33 FMSHRC Page 796

As an empfoyee ofMSHA, Johnson worked as a regular inspector for ten years. (Trl.
38:1-4.) Johnson then served as a roof control specialist for five years. (Trl. 38:4-6.) As a roof
control specialist, Johnson evaluated roof control plans, followed up on roof fall accidents, and
investigated accidents. (Tr1. 38: 10-17.) Additionally, Johnson evaluated mining conditions to
ensure that an operator's roof control plan was adequate. (Trl. 38:15-17.) After working as a
roof control specialist, Johnson was promoted to be a field office supervisor, a position he held
for ten years. (Trl. 38:6-9.) As supervisor, Johnson was charged with ensuring that inspections
were carried out properly in all of the mines assigned to his work group. (Trl. 38:18-39:3.) In
addition to these qualifications, Johnson is a certified electrician. (Tr1. 193: 17-194: 1.)
At the hearing, Johnson acknowledged that he was not an expert in "flames and forces,"
the cause and effect of fire (Trl. 49:21-24, 205:3-10), a fact highlighted by Stillhouse (Resp't Br
8-9). Nor did Johnson work as a ventilation supervisor or specialist at MSHA. (Trl.
204:22-25.) Although he lacked these credentials, Johnson testified that through his experience
in the industry and at MSHA, he has dealt with ventilation plans and ventilation systems. (Tr1.
205:11-21.) Johnson underwent the sam~ training given to ventilation specialists. (Trl.
205:17-19.) While working in the coal mining industry and at MSHA, Johnson aided in the
recovery efforts at three different mines following explosions at those operations, gaining an
understanding of the causes of those disasters. (Trl. 156:5-157:25.) Despite the fact that
Johnson did not work as a ventilation specialist, I still credit his testimony on ventilation issues
based on the significant experience he gained worlr..ing on these issues in the coal mining industry
andatMSHA.
Based on Johnson's candid demeanor at the hearing and on his extensive experience in
underground coal mining, particularly with regard to roof control and ventilation issues, I afford
great weight to his testimony.
2.

, William Clark, Coal Mine Inspector

The Secretary's other witness was William Clark, the coal mine inspector who issued the
citation and orders in this case. (Tr2. 18:18--20, 22:6-9; Exs. P-11, P-12, P-13, P-14.) Clark
worked nine years in the underground coal mining industry, mainly for smaller operators. (Tr2.
21: 15-22:2.) He held the positions of general laborer, equipment operator, maintenance man,
and foreman. (Tr2. 22:3-5.) During the time that Clark worked in private industry, he took
courses at Southeast Community College on underground coal mining concerning mining laws,
electricity, roof control, ventilation, and maintenance. (Tr2. 20:24-21:14.) Clark joined MSHA
in 1999 and had approximately seven years of experience working for the agency at the time the
citation and orders were issued in this case. (Tr2. 19:5-10.)
Compared to Johnson, Clark has fewer years of experience working in the coal mining
industry and MSHA. At the same time, Clark has an educational background in ventilation and
roof control issues and experience in evaluating them as a coal mine inspector. Moreover, at the
time the citation and orders were issued in this case, Clark had been the inspector previously

33 FMSHRC Page 797

assigned to Mine No. I and was very familiar with the operation. (Trl. 67:9-17.) Clark also had
a candid demeanor at the hearing, and based on his educational background and experience in the
coal mine industry and MSHA, I afford significant weight to his testimony.

Ill. Principles of Law and Statutory Analysis
A.

General Principles Governing Inte:rpretation of the Statutory Definition of a
Flagrant Violation

The Secretary argues that all four alleged violations at issue in this case should be
assessed as "flagrant." (Pet'r Br. 22-23, 32, 40, 50--51.) Section l 10(b)(2) of the Mine Act sets
forth the parameters for concluding that a violation is flagrant and provides for the assessment of
enhanced civil penalties:
Violations under this section that are deemed to be flagrant may be assessed a
civil penalty of not more than $220,000. For purposes of the preceding sentence,
the term "flagrant" with respect to a violation means a reckless or repeated failure
to make reasonable efforts to eliminate a known violation of a mandatory health
or safety standard that substantially and proximately caused, or reasonably could
have been expected to cause, death or serious bodily injury.
30 u.s.c. § 820(b)(2).
The question of whether an alleged violation is "flagrant" under section 110 of the Mine
Act presents a case of first impression for this Administrative Law Judge and the Commission.
The threshold issue in any case involving statutory construction is ''whether Congress has
directly spoken to the precise question at issue." Chevron, U.S.A., Inc. v. Natural Res. Def
Council, 461, U.S. 837, 842 (1984); Twentymile Coal Co., 30 FMSHRC 736, 750 (Aug. 2008);
Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). If a statute is clear and
unambiguous, then the court "must give effect to the unambiguously expressed intent of
Congress." Chevron, 467 U.S. at 842-43; Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42,
44 (D.C. Cir. 1990). In analyzing whether Congress expressed a specific intent on a particular
issue,· "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."'
Twentymile Coal Co., 30 FMSHRC at 750 (quotingK Mart Corp. v. Cartier, Inc., 486 U.S. 281,
291 (1988)). The statute's legislative history and purpose, as well as related judicial precedent
are also relevant to this analysis. Twentymile Coal Co., 30 FMSHRC at 750--52; Emery Mining
Corp., 9 FMSHRC 1997, 2001-04 (Dec. 1987).
The examination of whether the statute expresses such a clear congressional intent is
commonly referred to as a "Chevron Step One" analysis. Coal Emp 't Project v. Dole, 889 F .2d
1127, 1131 (D.C. Cir. 1989); Thunder Basin Coal, 18 FMSHRC at 584; Keystone Coal Mining
Corp., 16 FMSHRC 6, 13 (Jan. 1994). If the statute is ambiguous or silent on the point in

33 FMSHRC Page 798

question, a second inquiry, commonly referred to as a "Chevron Step Two" analysis, is required
to determine whether an agency's interpretation of the statute is a reasonable one. Coal Emp 't
Project, 889 F.2d at 1131; Thunder Basin Coal, 18 FMSHRC at 584 n.2; Keystone Coal Mining,
16 FMSHRC at 13. In conducting a Chevron Step Two analysis, a court may impose its own
interpretation of a statute only in the absence of an administrative interpretation. Chevron, 467
U.S. at843.
B.

Whether Congress Has Expressed a Clear futent on the Definition of a Flagrant
Violation
1.

Whether the Mine Act Demonstrates Congress's Clear Intent

Chevron Step One analysis requires an evaluation of whether Congress has expressed a
clear intent concerning the meaning of a flagrant violation. Chevron, 461 U.S. at 842. The
flagrant violation statutory provision uses words such as "reckless," ''repeated," "failure," and
''reasonable efforts to eliminate." 30 U.S.C. § 820(b)(2). Given the subjective nature of these
terms, an analysis of whether a flagrant violation exists raises threshold questions such as, what
standard should govern the determination of reckless conduct? What actions constitute
''reasonable efforts to eliminate?" Application of these terms also requires a fact-intensive
analysis of the operator's conduct to resolve issues such as whether an operator committed a
''reckless or repeated failure to make reasonable efforts to eliminate a known violation of a
mandatory health or safety standard" under 30 U.S.C. § 820(b)(2). The statutory provision does
not provide any guidelines for interpreting or applying these terms. Id.
Sections 3 and 318 of the Mine Act set forth definitions relevant to underground coal
mining. 30 U.S.C. §§ 802, 878. Neither of these sections defines any of the terms in the
definition of a flagrant violation. Id. Nonetheless, the portion of the definition of au "imminent
danger" conc~g the risk of harm is similar to the language used in the flagrant violation ·
provision: "'imminent danger' means the existence of any condition or practice in a coal or other
mine which could reasonably be expected to cause death or serious physical harm before such
condition or practice can be abated," § 802(j) (emphasis added). However, unlike the definition
of a flagrant violation, the expected level of harm of an imminent danger is qualified by the
caveat that such harm must be reasonably expected "before such condition or practice can be
abated." Id. A :flagrant violation is concerned with harms already resulting from the violation, as
well as reasonably expected ones. § 820(b)(2). The definitional sections of the Mine Act do not
clarify the inherent ambiguity of the definition of a flagrant violation.
Section 104(d)(l) of the Mine Act directs the Secretary to make certain :findings of
negligence and gravity, where warranted. 30 U.S.C. § 814(d)(l). Citations issued under section
104(d)(l) shall include a negligence finding that the operator committed an "unwarrantable
failure to comply with [a] mandatory health or safety standard[]." Id. Such citations shall also
include a gravity finding that 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

33 FMSHRC Page 799

[S&S]." Id. The quoted statutory language is quite different from the language that defines a
flagrant violation. Compare id. with 30 U.S.C. § 820(b)(2) (requiring, for example, a "reckless
or repeated failure to make reasonable efforts to eliminate a known violation"). The
unwarrantable failure and S&S language of section 104(d)(l) of the Mine Act does not elucidate
Congress's intent on the meaning of a flagrant violation.
Finally, section 110 of the Mine Act provides for the imposition of sanctions for certain
violations involving conduct that has been committed "knowingly." 30 U.S.C. § 820(c), (d), (f),
(h). These subsections describe "knowing" conduct in the commission of the violation, which is
somewhat different than the conduct described by the flagrant violation, which involves a
reckless failure to make reasonable efforts to eliminate a "known" violation. Compare id. with
30 U.S.C. § 820(b)(2) (concerning the "failure to make reasonable efforts to eliminate a known
violation"). Although these subsections may help illuminate the meaning of "known" in the
definition of a flagrant violation, they do not illuminate the other legal terms in the definition.
These sections cannot support the conclusion that Congress has definitively spoken on the
definition of a flagrant violation, either.
Based on the above considerations, I determine that neither the definition of the flagrant
violation itself nor the other parts of the Mine Act demonstrate Congress's clear intent on the
definition of a flagrant violation.
2.

Whether the Legislative History of the Statutory Provision Demonstrates
Congress's Clear Intent

Congress created the "flagrant" violation, providing for enhanced civil penalties, when it
passed the Mine Improvement and New Emergency Response Act of 2006 ("MINER Act").
MINER Act, Pub. L. No. 109-236, § 8, 120 Stat. 493, 501 (codified as amended at 30 U.S.C.
§ 820(b)(2)); According to the Senate Report accompanying the MINER Act, Congress passed
this law ''to further the goals set out in the [Mine Act] and to enhance worker safety in our
nation's mines." S. Rep. No. 109-365, at 1 (2006). Congress intended to accomplish several
objectives, including "increase[ing] enforcement and compliance to improve mine safety." Id.
The MINER Act came in response to the unusually high number of mining fatalities that
occurred in the first half of 2006 at the Sago, Alma, and Darby mines. Id. at 2. Based on those
incidents and a concurrent rise in coal production, Congress was concerned that mining accidents
could become more frequent. Id.
The Senate Report accompanying the MINER Act simply restates the definition of a
flagrant violation and the statutory cap on the civil penalty amount for that violation. S. Rep. No.
109-365, at 14. That information does not clarify how a flagrant violation should be determined.
Nonetheless, the comments of the law's sponsors offer some perspective on the purpose of the
flagrant violation penalty. The penalty targets '"bad actors,"' who fail to take their safety
responsibilities seriously by providing an increased maximum penalty for flagrant violators. 152
Cong. Rec. S4619 (daily ed. May 16, 2006) (statement of Sen. Michael Enzi). See also 152

33 FMSHRC Page 800

Cong. Rec. El071 {daily ed. June 8, 2006) (statement of Rep. Jerry F. Costello) (supporting
"stiffer penalties for flagrant violations of the law"). Upon signing the MINER Act into law,
President George W. Bush stated: "[T]o ensure compliance with the law, the MINER Act will
increase the maximum penalty for flagrant violations of mine safety regulations nearly fourfold." Presidential Statement on Signing the Mine Improvement and New Emergency Response
Act of2006, 2006 U.S.C.C.A.N. 827 (June 15, 2006).
The legislative history of the MINER Act yields no specifics on the meaning of the
language of section 11 O(b)(2). The only thing that is apparent from the legislative history is that
Congress and the President intended flagrant violations to target particularly severe violations of
the mine safety and health regulations in order to promote regulatory compliance and miner
safety. That general intent, however, is not sufficient to constitute a clear statement by Congress
as to the specific definition of a flagrant violation.
Because neither the statutory flagrant violation provision, the Mine Act, nor the
legislative history of the MINER Act offers a clear statement on the specific meaning of a
flagrant violation, I determine that the statute is ambiguous and that analysis under Chevron Step
Two is required.

C.

Whether the Secretary Has Provided an Interpretation of a Flagrant Violation

No regulatory guidance dictates how the statute should he applied to this case. 17 In
arguing that the citation and orders at issue are flagrant, the Secretary quotes the statutory
definition of a flagrant violation and proceeds to argue how the facts support her position. (Pet'r
Br. 22-23, 32, 40, 50-51.) The Secretary does not advance a particular interpretation of the
flagrant violation provision. (Id.) If neither congressional intent nor an administrative
interpretation bears on the meaning of a statutory provision, its interpretation is reserved for the
courts. Chevr.on, 467 U.S. at 843.

17

The Secretary implemented the flagrant statutory provision at 30 C:F.R. § 100.5(e ),
which did not become effective until April 23, 2007, after the issuance of the citation and orders
:in this case. Criteria and Procedures for Proposed Assessment of Civil Penalties, 72 Fed. Reg.
13,592 (Mar. 22, 2007). The Commission has expressed reservations over the retroactive
application of the Secretary's regulations. Drummond Co., 14 FMSHRC 661, 691-92 (May
1992) (citing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988)). Neither party cites
§ 100.5(e) in briefing whether the citation and orders in this case constitute flagrant violations.
(Pet'r Br.; Resp't Br.; Resp't Reply Br.) Even ifthese considerations did not weigh against
application of the regulation, the regulation merely restates the statutory definition of a flagrant
violation. Compare 30 C.F.R. § 100.5(e) with 30 U.S.C. § 820(b)(2) (containing same language
in statutory provision as in regulatory provision). Accordingly, my analysis is restricted to
consideration of the statutory language.

33 FMSHRC Page 801

Here, "[i]n the absence of a statutory or regulatory definition of a term, the Commission
applies the ordinary meaning of that term." FDIC v. Meyer, 510 U.S. 471, 476 (1994) (citing
Smith v. United States, 508 U.S. 223, 228 (1993)); Twentymile Coal Co., 30 FMSHRC 736, 750
(Aug. 2008) (citing Jim Walter Res., Inc., 28 FMSHRC 983, 987-88 (Dec. 2006)). The statute's
plain meaning is the linchpin of this analysis. Conn. Nat'! Bank v. Germain, 503 U.S. 249,
253-54 (1992); Emery Mining, 9 FMSHRC at 2001 (citing In re Trans Alaska Pipeline Rate
Case, 436 U.S. 631, 643 (1978)). As noted above, other considerations, such as the statute's
purpose, are relevant to statutory interpretation as well. Twentymile Coal, 30 FMSHRC at
750--52; Emery Mining, 9 FMSHRC at 2001.
The interrelationship of the flagrant violation provision with the other sections of the
Mine Act is also an important consideration. In setting forth its interpretation of the
unwarrantable failure language, the Commission observed that the Mine Act's enforcement
scheme promotes mining operators' compliance with its requirements by providing
'"increasingly severe sanctions for increasingly serious violations or operator behavior."' Emery
Mining, 9 FMSHRC at 2000 (quoting Cement Div., Nat'! Gypsum Co., 3 FMSHRC 822, 828
(Apr. 1981 )). In Emery Mining, the Commission interpreted the unwarrantable failure language
of section 104(d) citations and orders in light of this scheme of escalating sanctions. Emery
Mining, 9 FMSHRC at 2000--04. Here, if a violation is determined to be flagrant, then the
Commission is authorized to impose the highest amount of civil penalties available under the
Mine Act, up to $220,000 per violation. 30 U.S.C. § 815, 820(b)(2). Because the flagrant
violation provision's context in the Mine Act is relevant to its interpretation, application of the
provision should comport with the other sections of the Mine Act and the case law interpreting
those sections.
D.

Plain Meaning of the Definition ofa Flagrant Violation

Based on the plain language of the statutory provision, the following four elements
comprise a flagrant violation:

(1) Reckless or repeated failure to make reasonable efforts to eliminate
(2) A known violation of a mandatory health or safety standard
(3)(a) That substantially and proximately caused or
(3)(b) Reasonably could have been expected to cause
(4) Death or serious bodily injury
30 u.s.c. § 820(b)(2).
Here, I credit Stillhouse's argument that the alleged violations were isolated incidents, as
opposed to repeated occurrences of similar past conduct. (Resp't Br. 6-7.) The Secretary does
not dispute this contention. This case also does not involve any injuries. Therefore, in analyzing
whether the violation was flagrant, I consider only whether Stillhouse committed a "reckless
failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety

33 FMSHRC Page 802

standard that reasonably could have been expected to cause death or serious bodily injury."
30 U.S.C. § 820(b)(2). I now turn to determining the plain meaning of the statutory terms at
issue in this case.
1.

Reckless Failure to Make Reasonable Efforts to Eliminate a Known
Violation of a Mandatory Health or Safety Standard
a.

Reckless

fu the absence of clear congressional intent on the meaning of the statute or an
administrative interpretation, application of the statute must begin with the plain meaning of its
terms. Meyer, 510 U.S. at 476; Twentymile Coal, 30 FMSHRC at 750. ''Reckless" is commonly
understood as ''without thinking or caring about the consequences of an action." The New
Oxford American Dictionary 1414 (Erin McKean ed., 2d ed. 2005). As a legal tenn, "reckless"
has been described as conduct[c]haracterized by the creation of a substantial and unjustifiable risk of harm to
others and by a conscious (and sometimes deliberate) disregard for or indifference
to that risk; heedless; rash.... Reckless conduct is much more than mere
negligence: it is a gross deviation from what a reasonable person would do.

Black's Law Dictionary 1298 (8th ed. 2004). For comparative purposes, in tortsa person acts recklessly in engaging in conduct if: (a) the person knows of the risk
of harm created by the conduct or knows facts that make the risk obvious to
another in the person's situation, and (b) the precaution that would eliminate or
reduce the risk involves burdens that are so slight relative to the magnitude of the
risk as to render the person's failure to adopt the precaution a demonstration of the
person's indifference to the risk.
Restatement (Third) of Torts: Phys. & Emot. Harm§ 2 (2010)
Based on the common meaning of the word ''reckless," an operator is "reckless" for the
purposes of a flagrant violation when it consciously or deliberately disregards an unjustifiable
risk of harm arising from its failure to make reasonable efforts to eliminate a known violation of
a mandatory health or safety standard. 18 The risk of hann is "unjustifiable" if the burdens of
is fu their arguments, the parties rely on the definition of''reckless disregard" at 30 C.F.R.

§ 100.3, Table X, which is described as "conduct which exhibits the absence of the slightest
degree of care." (Pet'r Br. 21, 30, 38, 49; Resp't Br. 7, 15.) The parties' focus on§ 100.3 is
misplaced, as the purpose of 30 C.F.R. part 100 is to enable the Secretary to arrive at the civil
penalty amount she believes is appropriate. The Commission, not the Secretary, is charged with
the authority of assessing all civil penalties under the Act. 30 U.S.C. § 820(i). The Commission
may assess penalties by operation oflaw or in the cases brought before it. E.g., 30 U.S.C.
33 FMSHRC Page 803

ameliorating the ·risk are so slight relative to the risk that the operator's failure to take precautions
demonstrates indifference to the risk. Restatement {Third) of Torts§ 2.
The term "reckless" should not be interpreted in isolation from the remaining elements of
the violation. "It is a tenet of statutory interpretation that [words should be interpreted] 'in their
aggregate [to] take their purport from the setting in which they are used."' Rock ofAges Corp. v.
Sec '.Y ofLabor, 170 F.3d 148, 155 (2d Cir. 1999) (quoting King v. St. Vincent's Hosp., 502 U.S.
215, 221 (1991)). In interpreting the term "unwarrantable failure," the Commission explained:
With regard to the phrases "lack of due diligence" and "lack of reasonable care"
also appearing in these sources [defining the term "failure"], we recognize that the
phrases, if considered in isolation, can be viewed as referring to an ordinary
negligence test. However, ascribing such a meaning to "unwarrantable failure"
cannot be reconciled with either the purpose of unwarrantable failure sanctions or
with the ordinary meaning of the term unwarrantable failure itself.
Emery Mining, 9 FMSHRC at 2004.

A flagrant violation involves an operator's reckless failure to eliminate the violation
"substantially and proximately caused, or reasonably could have been expected to cause, death or
serious bodily injury." 30 U;S.C. § 820(b)(2). The statute's text plainly states that the risk
involved in a flagrant violation is the reasonable risk of death or serious bodily injury. Therefore,
an operator is reckless for the purposes of a flagrant violation when it consciously or. deliberately
disregards an unjustifiable, reasonably likely risk of death or serious bodily injury in faiiing to
make reasonable efforts to eliminate a known violation of a mandatory health or safety standard.
b.

Failure to Make Reasonable Efforts to Eliminate

"Failure" is commonly understood as "lack of success" and "the omission of expected or
required action." The New Oxford American Dictionary, supra, at 604. In the legal context, the
definition of failure is nearly identical, meaning "l. Deficiency; lack; want. 2. An omission of an
expected action, occurrence, or perfom1ance." Black's Law Dictionary, supra, at 631.
"Reasonable" has been understood by laypersons and lawyers as "having sound judgment; fair
and sensible" or "as much is appropriate or fair [under the circumstances]; moderate." Black's
Law Dictionary, supra, at 1293; The New Oxford American Dictionary. supra, at 141 L "Effort"
means a ''vigorous or determined attempt." The New Oxford American Dictionary, supra, at 540.
And "eliminate" means to "completely remove or get rid of (something)." Id. at 548.

§ 815(a), (d). Given that the regulatory term "reckless disregard" is used in the context of the
Secretary's own formulation of proposed penalties, rather than the Commission's disposition of
her proposals, the term bears limited relevance to interpreting the statutory definition of a
flagrant violation.
33 FMSHRC Page 804

The term "reasonable efforts" necessarily refers to some standard by which the operator's
conduct is measured. The law of torts has thoroughly explored the concept of the reasonableness
of an actor's conduct and evaluates it according to the standard of care followed by the
reasonably prudent person. Restatement (Third) of Torts§ 3 cmt. a. For the pmposes of
imposing civil penalties, the Commission uses the reasonably prudent person test to detennine
whether, in light of the facts and circumstances surrounding the operator's conduct, a reasonably
prudent person would have recognized a legal duty to take certain actions to comply with an
ambiguously worded mandatory health and safety standard. Phelps Dodge Tyrone, Inc.,
30 FMSHRC 646, 656 (Aug. 2008) (quoting Alabama By-Products Corp., 4 FMSHRC 2128,
2129 (Dec. 1982)).

fu a case involving an alleged flagrant violation, the question is whether the operator
failed ''to make reasonable efforts to eliminate a known violation of a mandatory health or safety
standard." This question is analogous to a case involving the reasonably prudent person test.
Both types of cases require analysis of whether the operator was subject to a legal duty to take
certain actions in operating its mine. fu applying the reasonably prudent person test to the
flagrant violation provision, the question becomes ''whether, in light of the facts and
circumstances surrounding the operator's conduct, a reasonably prudent person would have
recognized a legal duty to take certain actions to eliminate the known violation." Phelps Dodge,
30 FMSHRC at 656. lf an operator had a legal duty to take certain steps to eliminate the known
violation, then the next step in establishing a flagrant violation is to show that the operator's
failure tc eliminate the known violation was reckless.
Under the commonly accepted definitions of the terms of the flagrant violation provision,
an operator commits a '•failure to make reasonable efforts to eliminate a known violation of a
mandatory health or safety standard'' when, in light of aJl the facts and circumstances of the
violation, it does not take the steps a reasonably prudent person would have taken to correct the
violation. As ~tated by the Commission, a reasonably prudent person is "familiar with the
mining industry and the protective purposes of[a given health or safety] standard." Ideal Cement
Co., 12 FMSHRC 2409, 2416 (Nov. 1990). The reasonably prudent person test is objective and
accounts for all of the facts and circumstances surrounding the operator's conduct. Phelps
Dodge Tyrone, Inc., 30 FMSHRC at 656 (quoting U.S. Steel Corp., 5 FMSHRC 3, 5 (Jan.
1983)); Alabama By-Products Corp., 4 FMSHRC at 2129 .
Based on the foregoing analysis of the plain meaning of 30 U.S.C. § 820(b)(2), a
''reckless or repeated failure to make reasonable efforts to eliminate a known violation of a
mandatory health or safety standard" occurs when, in light of all the facts and circumstances
surrounding the violation, the operator does not take the steps a reasonably prudent operator
would have taken to eliminate the known violation of a mandatory health or safety standard and
consciously or deliberately disregards an unjustifiable, reasonably likely risk of death or serious
bodily injury.

33 FMSHRC Page 805

c.

Known Violation of a Mandatory Health or Safety Standard

As for the second element of a flagrant violation, the Secretary must show that the
operator recklessly failed to make reasonable efforts to eliminate a "known violation of a
mandatory health or safety standard." 30 U.S.C. § 820(b)(2). To "know" means to "be aware of
through observation, inquiry, or information." The New Oxford American Dictionary, supra, at
937. In the legal context, "knowledge'' may be understood as "actual" or "constructive." Black's
Law Dictionary, supra, at 888. Actual knowledge may be "express," which is "[d]irect and clear
knowledge," or it may be "implied," which is "[k]nowledge of such information as would lead a
reasonable person to inquire further." Id.
The Commission has interpreted "knowingly'' under section 110(c) of the Mine Act.
Section 1 lO(c) holds "any director, officer, or agent of [an operator] who knowingly authorized,
ordered, or carried out such violation, failure, or refusal" liable for "civil penalties, fines, and
imprisonment." 30 U.S.C. § 820(c) (emphasis added). The Commission has explained "[t]he
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." Cougar Coal Co., 25 FMSHRC 513, 517
(Sept. 2003) (citing Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), ajf'd on other grounds,
689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983)). Under this inquiry, "[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 of a violative condition."' Cougar Coal, 25 FMSHRC at 517 (quoting Kenny
Richardson, 3 FMSHRC at 16). The Commission's understanding of"knowingly'' under section
110(c) embraces the concepts of implied and express actual knowledge. The plain meaning of
"known" accords with the commonly understood meaning of"knowingly'' under the Mine Act.
The meaning of "known" may even embrace the concept of constructive knowledge,
which is "[k]nowledge that one using reasonable care or diligence should have." 19 Black's Law
Dictionary, supra, at 888. However, in this case, the Secretary argues that Stillhouse failed to
19

In contrast to implied actual knowledge, a person's constructive knowledge of a
particular matter derives solely from his or her duty to have acquired that knowledge. Black's
Law Dictionary, supra, at 888. Implied actual knowledge merely concerns a person's awareness
of circumstances that give rise to a duty to inquire about a particular matter. Id. Holding an
operator responsible for constructive knowledge has been recognized under the Act. See, e.g.,
Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 364 (D.C. Cir. 1997) (''The
Commission's interpretation of section 11 O(c), as we understand it, is a fair interpretation of the
statutory language. In essence, the Commission has defined 'knowledge' for purposes of section
1 lO(c) to include both actual and constructive knowledge of a violative condition."); Jim Walter
Res., Inc., 19 FMSHRC 1761, 1767-69 (Nov. 1997) (concluding that to establish an underground
coal mine operator's violation of30 C.F.R. § 75.323 for failure to take mandated actions in
response to a one percent methane concentration in certain areas of the mine, the Secretary needs
to establish that the operator had constructive knowledge of the methane concentration).

33 FMSHRC Page 806

eliminate violations it actually knew about. (Pet'r Br. 23, 32, 40, 50--51.) The question of
whether "known" under 30 U.S.C. § 820(b)(2) embraces constructive knowledge of a violation is
not before me. Based on the plain meaning of the statute; the reference to a "known violation"
refers to the operator's express or implied actual knowledge of the violation.
The only adjective modifying "violation" is "known." 30 U.S.C. § 820(b)(2). The plain
text of the statute does not require the violation to have already been cited by MSHA. Id. The
flagrant violations at issue in this case had not yet been cited by MSHA during the time
Stillhouse allegedly committed them.
Before concluding that a prior citation from MSHA is not required, the flagrant
violation, s location under section 11 O(b) of the Mine Act, entitled "Civil penalty for failure to
correct violation for which citation has been issued," must be addressed. 20 30 U.S.C. § 820(b).
The Supreme Court has stated that "[t]he caption of a statute ... 'cannot undo or limit that which
the [statute's] text makes plain."' Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241,
256 (2004) (quoting Trainmen v. Baltimote & Ohio R.R. Co., 331 U.S. 519, 529 (1947)). Indeed,
a statute's overall construction should be considered. Twentymile Coal Co., 30 FMSHRC at 750.
Section l lO(a) of the Mine Act provides a civil penalty when an "operator ... fails to correct a
violation for which a citation has been issued ... within the period permitted for its correction."
30 U.S.C. § 820(b)(l). Section l lO(b) does not eA'J>resslyrequire a flagrant violation to have
been previously cited by MSHA. Id. A court should presume that when Congress includ~s
specific language in one section of a statute but not in another section, it meant to do so. Keene
Corp. v. United States, 508 U.S. 200, 208 (1993) (quoting Russello v. United States, 464 U.S. 16
(1983)). Given that Congress expressly omitted the requirement that section 1 lO(b) involve a
· cited violation, the known violation at issue in a flagrant case need not have been previously
cited by MSHA at the time the operator recklessly failed to eliminate it.
2.

, Reasonably Could Have Been Expected to Cause Death or Serious Bodily
Injury

Finally, the third and fourth elements of a flagrant violation require the Secretary to show
that Stillhouse' s ''reckless ... failure to make reasonable efforts to eliminate a known violation
... reasonably could have been expected to cause ... death or serious bodily injury." 30 U.S.C.
§ 820(b)(2) (emphasis added). AB noted above, "reasonable" is what is fair or sensible under a
particular set of circumstances. Black's Law Dictionary, supra, at 1293; The New Oxford
American Dictionary, supra, at 1411. To "expect" means to "regard (something) as likely to
happen." The New Oxford American Dictionary, supra, at 593. As understood by the legal
20

In promulgating the regulation implementing the statutory definition of a flagrant
violation, which is not at issue in this case, supra note 17, the Secretary explained her position
that a flagrant violation need not involve a violation that has been cited by MSHA, Criteria and
Procedures for Proposed Assessment of Civil Penalties, 72 Fed. Reg. 13,592, 13,622 (Mar. 22,
2007). Stillhouse did not raise the issue of whether a flagrant violation needs to have been
previously cited by MSHA and thus has conceded this point.
33 FMSHRC Page 807

community, an "expectation" is "[t]he act of looking forward," "anticipation," or "[a] basis on
which something is expected to happen." Black's Law Dictionary, supra, at 1293. To "cause" is
"[t]o bring about or effect." Id. at 235; see The New Oxford American Dictionary, supra, at 272
(defining cause as to ''make (something) happen"). Based on the plain meaning of the statute's
terms, for the purposes of establishing a :flagrant violation, an operator's conduct "reasonably
could have been expected to cause death or serious bodily injury" when, based on all of the facts
and circumstances surrounding the operator's reckless failure to make reasonable efforts to
eliminate a known violation of a mandatory health or safety standard, the operator's conduct was
likely to bring about death or serious bodily injury.

IV. Le&al Analysis, Further Findinis of Fact, and Conclusions of Law
A.

Citation No. 6665036
1.

Issues Presented

Citation No. 6665036 alleges a violation of30 C.F.R. § 75.313, a mandatory safety
standard. Stillhouse stipulated to the fact of the violation in Citation No. 6665036. (Trl.
5:21-22; Resp't Prehr'g Report 2.) The parties presented the following issues in regard to
Citation No. 6665036:

a.

Whether the violation was .flagrant, as defined by 30 U.S.C.
§ 820(b)(2);

b.

Whether Stillhouse acted with reckless disregard in committing the
violation;

c.

Whether the violation was caused by Stillhouse's unwarrantable
failure to comply with 30 C.F.R. § 75.313;

d.

Whether the violation was .highly likely to result in fatal injuries to
eight miners; and

e.

Whether the gravity of the violation of30 C.F.R. § 75.313 was
S&S.

(Pet'r Prehr'g Report 2-3; Resp't Prehr'g Report 2.)

33 FMSHRC Page 808

2.

The Parties' Arguments
a.

The Secretary

The Secretary argues that Stillhouse intentionally shut off its mine fan and continued to
produce coal underground while it cut to the outside of the mountain at the 002 section. (Pet'r
Br. 12-14.) According to the Secretary, when Stillhouse cut to the outside, it destroyed the
mine' s ventilation system and inhibited the ventilation system's ability to clear methane and coal
dust from areas where miners were working. (Id. at 19.) She believes these conditions created a
high likelihood that eight miners working underground during the fan shutoff would suffer
significant injury or death from a mine explosion. (Id. at 14-16, 18-21.) She also states these
conditions exposed the miners to hazards associated with reduced visibility and black lung
disease. (Id. at 15-16, 20-21.)
Relying primarily on the guilty pleas of three of Stillhouse's supervisors to criminal
charges arising from the facts underlying this violation, the Secretary argues that Stillhouse
"exhibited absolutely no care for the health and safety of the eight miners underground when it
directed them to continue mining when the mine fan had been turned off." (Pet'r Br. 21.) These
guilty pleas underlie the Secretary's assertions that Stillhouse showed reckless disregard in
committing this violation and committed an unwarrantable failure to comply with 30 C.F.R.
§ 75.313. (Id. at 20-21.)
As for the Secretary's assertion that Stillhouse's violation was flagrant under 30 U.S.C.
§ 820(b)(2), she emphasizes her position that Stillhouse intentionally shut down the mine fan,
disabled the mine fan alarm, and continued to mine coal. (Pet'r Br. 23.) The Secretary believes
that Stillhouse would not have ceased its violation but for the intervention of Johnson and
Clark's inspection ofthe mine. (Id. at 23.) Because Stillhouse's violation was highly likely to
cause death o~ serious injury, the Secretary asserts that the violation was flagi"ant. (Id. at 23.)
b.

Stillhouse

Stillhouse asserts that the Secretary's case relies on the erroneous assumptions that Mine
No. 1 had no ventilation while the fan was off and that the miners were exposed to dangerous
levels of dust and methane. (Jd.. at 5, 8-11; Resp't Reply 3-4.) According to Stillhouse, the
Secretary has presented no proof on the underground conditions of the mine while the fan was
off. (Resp't Br. 7.) Stillhouse highlights the statements of two ofits foremen, who asserted that
Mine No. 1 had adequate airflow from natural ventilation. (Resp't Br. 7; Resp't Reply 3.)
Stillhouse also asserts that the Secretary has not shown why the fan was turned off or who
ordered it turned off. (Resp't Br. 7.) Stillhouse argues that none ofits management knew that
the air had reversed when the mine fan was restarted. (Id. at 7.) Stillhouse :further criticizes the
Secretary's case based on Johnson's and Clark's actions during their inspection. (Resp't Br. 11.)

33 FMSHRC Page 809

As for whether this violation is flagrant, Stillhouse notes that little guidance has been
provided on this issue. (Resp't Br. 6.) Stillhouse points out that it had not previously violated
30 C.F.R. § 75.313 and that Citation No. 6665036 constituted an isolated incident. (Resp't Br. at
6-7.) It argues that in order to establish a flagrant violation, the Secretary must establish "(1)
reckless conduct, and (2) reckless conduct which could reasonably be expected to cause death or
serious bodily injury." (Id. at 7.) Based on the preceding considerations, Stillhouse argues that
the Secretary has not satisfied her burden as to the gravity and negligence of this violation. (Id.
at 7-11.)
3.

Whether the Violation Was Flagrant
a.

Risks of Stillhouse's Violation of§ 75.313

At approximately midnight on December 3, 2006, Stillhouse cut to the outside of the 002
section of Mine No. 1 and deliberately &hut down its mine fan, disabling the only mechanical
device ventilating the mine. (Trl. 256:11-24.) The fan's voluminous airflow, typically around
230,000 CFM, ceased. (Trl. 166:17-24.) The lack of air movement was visibly evident-upon
Inspector Clark's discovery of the fan shutoff he saw, at most, negligible air movement at the fan.
The measurable, significant reduction in air flow resulting from the fan shutoff severely
compromised the circulation of fresh air through Mine No. 1.
The mandatory safety standard at 30 C.F.R. § 75.313 required Stillhouse to take several
steps following the mine fan shutoff. When the fan stopped, Stillhouse was required to turn .:>ff
the equipment in the 002 section and to withdraw miners from the area. § 75.313(a). By the
time the fan had been shut down for fifteen minutes, Stillhouse was required to have withdraWn
all of its miners from the mine and to have turned off all of the underground electrical circuits
and equipment, except equipment and electrical circuits necessary to bring miners to the surface.
§ 75.313(c) .. Stillhouse followed none of these steps. Rather, Stillhouse continued to mine coal,
extracting nearly 700 tons of coal and other materials from the 002 section.
Ample sources of methane were present in the mine during the six hours the mine fan was
off, e.g., the coal exposed in the miles of entries in Mine No. 1, the Imboden seam lying under
the mine, and the continuous miner's extraction of coal at the cutouts. Three air samples taken
over a nine-month period preceding December 3, 2006, revealed daily emission rates between
128,455 and 187,006 cubic feet per day. (Trl. 105:14-106:22; Ex. P-8.) The Mine Act requires
spot inspections when a mine's methane emissions rate reaches 200,000 cubic feet per day.
30 U.S.C. § 103(i). Although the methane emissions levels at Mine No. 1 did not reach this
threshold, they came close and remained quite high. Mine No. 1 had a history of emitting highly
significant quantities of methane.21
21

The amount of methane released by the extraction of coal at the cutouts was expected
to be less than the amount of methane released deeper inside the mine. (Trl. 222:14-19.) The
air measurements taken in Mine No. 1 during the nine-month period prior to December 3, 2006,
showed a trend of decreasing methane emissions, a point highlighted by Stillhouse. (Resp't Br.
33 FMSHRC Page 810

In addition to methane, Stillhouse's mining activities supplied significant sources of float
coal dust, the presence of which lowers the concentration of methane necessary to create the risk
of a mine explosion. Stillhouse operated a continuous miner. It also delivered coal out of the
mine via its extensive belt haulage system, which spans for miles through the mine.

Between January 6, 2006, and December 3, 2006, Stillhouse received twenty section
104(a) citations under 30 C.F.R. § 75.400 for accumulations of combustible materials, such as
coal dust. (Ex. P-10, at 4.) Four of these were designated S&S, including the one issued by
Clark during his inspection on December 3, 2006, for .float coal dust on the mine roof and the
mine floor of the 003 section. (Id.) On cross-examination, Johnson referenced this citation (Tr1.
223:<}-14) in support of his determination that dust was a problem in Mine No. 1 during the fan
shutoff {Tr 1. 226:<}-11 ). · Evidence of past hazards is relevant to assessing the gravity of a
violation. See Peabody Coal Co., 14 FMSHRC 1258, 1263-64 (Aug. 1992) (affirming the
Administrative Law Judge's decision that the operator committed an unwarrantable failure to
comply with a mandatory safety standard, which relied, in part, on the operator's history of past
violations); Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988) (affirming the Administrative
Law Judge's decision, which relied, in part, on prior mine inspections' findings of non-explosive
concentrations of methane). These violations underscore the significant risk of float coal dust
accumulations in Mine No. l.
Numerous sources of methane and .float coal dust were present in Mine No. 1 during the
fan shutoff on December 3, 2006. With no effective, controlled ventilation system circulating
fresh air through .J\tline No. 1, the six-hour long mine fan shutdowri provided a sufficient amount
of time for methane to build up in the mine. {Trl. 227:15-21.) The evidence in this case more
than adequately establishes the presence of a high risk of explosive accumulations of methane
and float coal dust during the early morning hours of December 3; 2006. Indeed, even Stillhouse
only goes so far as arguing that "[a]t most, [the gravity of this violatio:l1] should have been
considered only 'reaso:riably likely."' (Resp't Reply 4.)
Many potential ignition sources were present in the hazardous underground conditions
created by Stillhouse. During the fan shutdown, Stillhouse operated non-permissible equipment
throughout Mine No. 1, which has electrical components that can ignite air contaminated with
methane and float coal dust. (Trl. 143:14-22, 144:8-21, 154:15-24.) Stillhouse's pumping
9.) The amount of methane emitted by a coal mine may indeed vary. {Trl. 106:23-107:1.)
Nonetheless, the mere three data points on Mine No. 1's methane emissions taken over a nine
month period do not constitute a preponderance of evidence establishing a definite trend in the
methane emissions rate at Mine No. 1. Mine No. 1's methane emissions rate could have been
higher or lower than the readings in the record. What is true of all of Mine No. l's methane
emissions readings is their indication that Mine No. 1 released significant volumes of methane.
Given the substantial number of methane sources in Mine No. 1 and its history of elevated
methane emissions, the evidence establishes a very high likelihood that Stillhouse was emitting a
significant amount of methane on December 3, 2006.
33 FMSHRC Page 811

equipment was non-permissible. (Trl. 154:20-22.) The feeder and belt line, including the drive
units at each location where the direction of coal delivery out of the mine changes, were nonpermissible pieces of equipment. (Trl. 132:8-13, 192:1-194:6.) The power centers running the
continuous miner and shuttle cars on the 002 section were non-permissible. (Trl. 46:14-18.)
Stillhouse acknowledges that this equipment could have sparked a mine explosion. (Resp 't Br.
9.)
Mine No. 1 's belt haulage system provided another ignition hazard. The belt haulage
system has thousands of rollers, and any number of them could have become jammed with coal
or mud, creating friction between the belt and stuck roller. (Trl. 194:16-17, 196:2-8.) These
jams are not unusual, and the heat generated by friction between the belt and stuck roller is a
potential ignition source. (Trl. 196:2-9.) Belt haulage systems are a major source of
underground coal mine fires. (Trl. 194:15-16.) The thousands ofrollers of Stillhouse's belt
haulage system provided thousands of potential contact points for friction fires.
Finally, Stillhouse mined in the 002 section, and the sparks generated by the continuous
miner's ripper and the roof bolter striking rock could have ignited methane or float coal dust.
(Trl. 45:25-46:4, 49:4-24.) During the mine fan shutoff, Stillhouse ran non-permissible
equipment, an extensive belt haulage system, and spark-generating mining equipment, all of
which constituted potential ignition sources. Potential ignition sources were abundant
throughout Mirte No. 1 during the fan shutoff.
The fan shutoff also compromised the carbon monoxide monitoring system at Mine No. 1
used for fire suppression. Nomially, should a fire occur in the mine, the air current generated by
the fan passes smoke from the fire over the system's sensors, warning the miners. (Trl.
197:5-11.) These sensors are located 1000 feet apart. (Trl. 197:12-13.) Without ainnoving
properly through the mine to blow the mine fire's smoke over one of the sensors, a significant
fire could have developed before the system alerted the miners. (Trl. 197:11-14.) For example,
the man trip roadway passed the Wet Area, the location where the coal belts tum. Each tum of
the belts requires separate belt lines and equipment, all of which are potential ignition sources. A
fire could have developed in this area and gone undetected until the miners reached it on their
way out of the mine at the end of their shift. By impairing the carbon monoxide monitoring
system's ability to detect fires, the fan shutoff further compounded the risk of death or serious
lilJury.
When Stillhouse shut off the mine fan and continued to mine coal, it created a high
likelihood that combustible mixtures of methane and coal dust would accumulate in the mine.
The mine teemed with potential ignition sources, and the compromised carbon monoxide
monitoring system compounded the chances that miners would encounter a mine fire.
Stillhouse's failure to rectify its violation of30 C.F.R. §75.313 by continuing to mine coal for six

33 FMSHRC Page 812

hours during the fan shutoff created the high likelihood of a deadly mine explosion and exposed
the eight miners working underground to the high risk of death.22
StiUhouse's main argument is that the Secretary did not show specific evidence of a
buildup of combustible methane or dust in the mine on December 3, 2006. (Resp't Br. 8-9.)
Clark attempted to take an air sample at the fan to check for methane, but the sample was lost.
Neither Johnson nor Clark detected methane during their underground inspection of the mine.
The negative air samples relied upon by Stillhouse do not undercut the high risk of death
or serious bodily injury created by its violation. Clark took an air sample at the mine fan, which
draws air from the entire mine. Yet Clark did not take this sample until after foreman Ira Sergent
had switched the mine fan back on. Even if Clark had successfully taken a sample, it would have
revealed the methane concentration of air drawn from all areas of the mine, not any information
about localized areas of high methane concentrations that may have formed during the six hours
Stillhouse mined without the fan.
Also, Johnson and Clark took their underground methane measurements after Stillhouse
had ceased its mining activities and restarted the mine fan. The cessation of mining once the fan
restarted reduced the number of methane sources in Mine No. 1, as coal mining releases
methane. Johnson and Clark also let the mine fan circulate fresh air through the mine for an hour
to clear methane accumulations before conducting their underground inspection. Johnson and
Clark did not enter Mine No. 1 until they had determined it was safe to do so. (Trl. 231 :5-14;
Tr2. 57:20-58:7.)23 Through the mitigation of one source of methane and by allowing the mine
fan to circulate large volumes of air through the mine, it is not surprising that Johnson and Clark

22

The Secretary relies on evidence that mining with the fan off created the risk that float
coal dust would impair the miners' ability to see. underground, which could have resulted in
injuries, such as being struck by equipment. (Trl. 151:9-153:4; Pet'r Br. 15-16, 20-21, 23.)
The Secretary also points to the heightened risk of black lung disease arising from increased coal
dust exposure. (Trl. 176:21-177:23; Pet'r Br. 16, 20-21, 23.) Stillhouse disputes the
Secretary's characterization of these particular risks. (Resp't Br. 11.) Given Mine No. l's
compromised ventilation and the numerous sources of float coal dust during the mine fan shutoff,
Stillhouse' s actions created a reasonable risk of exposure to heightened levels of float dust. This
risk, however, stands in contrast to the immediate, serious chance of death or severe bodily injury
from a mine explosion created by Stillhouse's conduct. Moreover, the evidence establishing this
risk is much less extensive than the evidence establishing the risk of a mine explosion. The risks
of impaired vision and black lung disease created by Stillhouse's conduct contribute to, but
standing alone are insufficient to satisfy, a finding of a flagrant violation in this case.
23

Clark testified that once he discovered the underground power was on during his
inspection, he remained underground because he had determined that the methane had been
cleared from the mine. {Tr2. 57:20-58:7.)

33 FMSHRC Page 813

did not encounter methane during their subsequent inspection. Johnson and Clark's failure to
find methane does not obviate the great risks associated with Stillhouse's violation. 24
Stillhouse also disputes the fact that the fan shutoff compromised the ventilation in Mine
No. 1. (Resp 't Br. 9-10.) It points to the hearsay statements of foremen Johnny Osborne and Ira
Sergent that the mine had adequate ventilation during the shutoff. (Id. at 10.) It argues that the
Secretary has not put forth evidence disputing these statements. (Id.) Yet Osborne and Sergent
reacted evasively to Johnson's inquiries about the fan shutoff, not admitting any involvement
with it. Osborne and Sergent subsequently pleaded guilty to criminal violations of the Mine Act
resulting from their failure to withdraw miners from Mine No. 1 during the fan shutoff. In so
pleading, they admitted that their conduct was at least reckless with regard to the fan shutoff.
Osborne's and Sergent's lack of candor about the fan shutoff and felony pleas for their conduct
during that event greatly diminish the credibility of their statements about the mine's conditions.
Moreover, as discussed above, I have determined that even had air been flowing in through the
cutouts, Mine No. l's ventilation still would have been severely compromised. Consequently, I
conclude that Osborne's and Sergent's statements do not undermine the conclusion that the fan
shutoff severely compromised Mine No. l's ventilation system.
Stillhouse points to Johnson's and Clark's acknowledgments that Mine No. 1 could have
had "natural ventilation" through air flowing into the mine from the cutc>uts while the fan was
shut off. 25 (Trl. 148:20..-21; Tr2. 47:2-9; Resp't Br. 10.) As far as when Johnson and Clark
observed the exterior of the mine during the mine shutoff, air was not moving from the 002
section to the entrance, as Clark noticed negligible air movement at the portals, at best.
\Vhen the fan was subsequently turned back on, air did flow through the cutouts into the
mine. The problem is that the airflow through the cutouts did not follow the carefully prescribed
route dictated by Stillhouse's MSHA-approved ventilation plan. Fresh air was supposed to
circulate via.a specified ten-mile round trip course from the mine's entrance to the 002 section
and then back again. Instead, potentially contaminated air passed over numerous possible
24

Johnson's and Clark's precautionary measures prior to entering the mine undermine
Stillhouse's contention that their actions suggest a lower gravity than that alleged by the citation.
Stillhouse also points to Johnson's failure to instruct Stillhouse foreman Osborne to tum off the
underground power when Johnson instructed the miners to evacuate. (Resp't Br. 11.) Johnson
admitted that the thought of cutting the power had not crossed his mind when he spoke with
Osborne. (Trl. 217:10-12.) However, at the same time, Johnson had observed that nothing
happened when the mine fan was switched back on, and he did not want to change the mine's
conditions until the miners had safely reached the surface. (Trl. 216:3-217: 12.)
25

Stillhouse criticizes Johnson for contradicting his interrogatory statement that "[n]o
other means of ventilating the mine workings were available" because he acknowledged the
possibility of natural ventilation in Mine No. 1. (Ex. R-1, at 6; Resp't Br. 10.) As evidenced by
Johnson's hearing testimony, he was merely referring to the fact that the only mechanical means
of ventilating the mine had been shut down. (Trl. 256:17-24.)
33 FMSHRC Page 814

ignition sources, and the miners' only viable escape route, as it coursed from the 002 section
cutouts through the belt and man trip roadway entries toward the mouth of the 003 section.
No fresh air flowed through the intake entries to ventilate the face. Indeed, at the 002 section,
potentially contaminated air was flowing through the intake entries toward the mine entrance.
The central fallacy of Stillhouse' s argument about the possibility of natural ventilation in Mine
No. 1 is that air blowing through the cutouts at the 002 section, as it asserts, would have
produced the same dangerous breach of Stillhouse's MSHA-approved ventilation plan as it did
when it turned the mine fan back on.
A further problem with natural ventilation is that it did not allow Stillhouse to manage
airflow through the mine because environmental factors beyond Stillhouse's control, such as the
temperature and barometric pressure outside the mine, can affect air movement through the mine.
(Trl. 225:14-22.) Under Stillhouse's MSHA-approved ventilation plan, air was supposed to
move through the mine in a controlled fashion. Stillhouse did not amend its ventilation plan to
permit the natural ventilation it purportedly used on December 3, 2006. Having cut out to the
surface and shut down its mine fan, air could have been flowing in any direction in Mine No. 1.
The mere fact that air could have been flowing into Mine No. 1 does not obviate the conclusion
that the ventilation in Mine No. 1 was severely compromised during the fan shutoff.
Stillhouse also asserts that Mine No. l has no prior history of methane ignitions. Prior to
December 3, 2006, Mine No. l's past operations presumably bore little resemblance to the
massive ventilation change and concomitant risk of significant methane and float coal dust
accumulations precipitated by mining during the fan shutoff. Stillhouse never sought MSHA •s
approval to amend its ventilation plan to permit its conduct during the early morning hours of
December 3, 2006, so the lack of past ignitions at Mine· No. 1 is of limited relevance to this
particular case. Based on the evidence before me, Stillhouse's commission of this violation was
· an isolated aberration yet great deviation from its normal operations. The lack of past ignifa>ns
does not detra.ct from the great risks associated with Stillhouse's conduct.
The theme of Stillhouse' s arguments is that the Secretary did not show the existence of
any immediately harmful conditions, such as the accumulation of an explosive concentration of
methane gas. A flagrant violation involves conduct that '1-easonably could have been expected to
cause ... death or serious bodily injury." 30 U.S.C. § 820(b)(2). Thus, to establish a flagrant
violation the facts and circumstances surrounding the violation must demonstrate that the
operator's conduct was likely to bring about death or serious bodily injury. See discussion supra
Part ID.D.2. Stillhouse's narrow interpretation of the statutory text ignores the facts in this case
demonstrating that Stillhouse subjected eight miners to the high risk of death.

In Russian roulette, the player spins the cartridge of a six-round revolver loaded with a
single bullet, holds the gun to his or her head, and pulls the trigger. No reasonable person would
look at the mere fact someone has survived a round of this game and conclude that the player did
not take a serious risk of death: "Would we not assess the risk associated with playing Russian
roulette by considering the potential for harm involved in holding a loaded gun to one's head and

33FMSHRCPage 815

pulling the trigger, rather than by considering what happened after the trigger was pulled?"
Manalapan Mining Co. (Manalapan Mining JI), 18 FMSHRC 1375, 1396 (Aug. 1996) (Jordan &
Marks, Comm 'rs, concurring). When Stillhouse completely shut down the only device moving
air through its extensive mine and extracted coal for six hours, it created an environment ripe for
the occurrence of a fatal explosion. Just because Stillhouse averted disaster does not mean its
violation did not create the high risk of such an event.
b.

Application of the Elements of a Flagrant Violation and
Determination of Reckless Disregard

To satisfy the first and second elements of the flagrant violation, the evidence must
demonstrate that Stillhouse committed a reckless failure to make reasonable efforts to eliminate a
known violation of the mandatory safety standard at 30 C.F.R. § 75.313. 30 U.S.C. § 820(b)(2).
See discussion supra Part ffi.D. These two elements are met when, in light of all the facts and
circumstances surrounding the violation, the Secretary demonstrates that Stillhouse did not take
the steps a reasonably prudent operator would have taken to correct the known violation of a
mandatory health or safety standard and consciously or deliberately disregarded an unjustifiable,
reasonably likely risk of death or serious bodily injury. See discussion supra Part ffi.D. l .b.
Here, a violation is "known" to the operator when it has express or implied actual knowledge of
it. See discussion supra Part IILD. l .c.
Stillhouse had ample notice of the consequences of cutting to the surface at the 002
section. Alniost a year before December 3, 2006, Johnson and Clark learned from Stillhouse's
management that Stillhouse intended to cut to the outside of the 002 section. Johnson told
Stillhouse's management that cutting to the surface at the 002 section would destroy Mine
No. 1's ventilation. Johnson reminded Stillhouse's management of its duty to file a revised
ventilation plan with MSHA. Stillhouse never sought approval for an amendment to its
ventilation plan, much less informed MSHA of its imminent actions, prior to making the cutouts
in the 002 section. Indeed, Stillhouse does not contend its changes to Mine No. 1's ventilation
were approved by-MSHA. (Resp't Br. 9.) Stillhouse also does not dispute that its miners should
not have remained underground. (Id.)
At the time of the violation, Stillhouse knew the consequences of its conduct. During
Johnson and Clark's investigation, foremen Johnny Osborne and Ira Sergent revealed that they
would have "opened the mine fan doors," reducing the fan's ability to pull air through the mine.
As Johnson and Clark discovered, once the cutouts were made, running the fan at full power
pulled air through the belt entry and man trip roadway entry in the wrong direction through the
mine and ceased the flow of intake air between the mouth of the 002 section and the 003 section.
In light of these consequences and the notice Stillhouse had already received about the cutouts'
potential effect on Mine No.l's ventilation, Sergent's and Osborne's admissions underscored
their knowledge that the cutouts would have a detrimental impact on the mine' s ventilation.
Subsequently, Osborne and Sergent each pleaded guilty to a criminal violation of the regulation
underlying this violation for failing to withdraw miners during the mine fan shutoff. I conclude

33 FMSHRC Page 816

that Stillhouse shut down its mine fan in a reckless, misguided attempt to correct the cutouts'
destruction of its ventilation plan. In light of this conclusion, the Secretary's failure to produce
evidence explicitly stating Stillhouse' s rationale for the mine fan shutoff is immaterial, contrary
to Stillhouse's assertions otherwise.
Stillhouse demonstrated minimal care for the safety of its miners. At virtually the stroke
of midnight on December 3, 2006, Stillhouse secretly cut to the surface of the 002 section, turned
off its mine fan, and proceeded to mine coal-all during the third-shift when it normally does not
produce coal. Stillhouse disabled the alarm sounding the shutoff. The miner who turned off the
mine fan reportedly brought his children to the Maggard Branch to watch Stillhouse's mining
equipment emerge from underground. That this miner felt like it was appropriate to treat the
event like a trip to the circus with his children underscores the lack of seriousness Stillhouse paid
to its obligation to protect the safety of its miners. Stillhouse mined coal for six hours with its
fan shut down, failing to withdraw miners in violation of30 C.F.R. § 75.313. Three of
Stillhouse's supervisory employees pleaded guilty to criminal violations of 30 C.F.R. § 75.313 in
relation to this conduct.
The unusual circumstances in which Stillhouse made the cutouts demonstrate a concerted
effort to evade the mining regulations. Rather than making any attempt to comply with its
obligations to submit an amended mine ventilation plan or to otherwise properly ventilate the
mine, Stillhouse forged ahead with its plan to cut to the outside of the 002 section. As evidenced
by the fact that Stillhouse disabled the mine fan shutoff alarm, Stillhouse then proceeded to
purposely and knowingly disobey its requirements under 30 C.F .R. § 75 .313. StilJhouse•s
conduct only became known to MSHA when at the end of second-shift a concerned miner calied
an MSH.A. supervisor at his home to report dangerous roof conditions where Stillhouse was
cutting to the surface. Stillhouse grossly deviated from its regulatory obligations gambling that it
would not get caught until .MSHA's inspection arrived on site at the end of third-shift.
A reasonably prudent mine operator would have submitted an amended ventilation plan
or, at the very minimum, taken reasonable precautions to reduce the risks associated with cutting
to the surface. If, as in this case, the reasonably prudent operator breached the mine wails to the
surface, it would have immediately shut down production and complied with 30 C.F .R. § 75.313
by evacuating its miners from underground and powering down its electrical circuits and
equipment. Nothing in the record before me suggests another course of action was appropriate.
Stillhouse evaded its obligations under 30 C.F.R. § 75.313 for no immediate benefit other than
the revenue generated from 700 tons of coal. 26 Stillliouse's violation created the high risk of
death to eight miners. See discussion supra Part N.A.3.a. Thus, for purposes of this flagrant
analysis, Stillhouse did not take the steps a reasonably prudent mine operator would have taken
to eliminate its known violation of 30 C.F.R. § 75.313 and deliberately disregarded an
unjustifiable, reasonably likely risk of death or serious bodily injury. Accordingly, Stillhouse
committed a reckless failure to make reasonable efforts to eliminate a known violation of a
26

Once completed, the cutouts would provide an alternative entrance to Mine No. 1
located far closer to the working face. (Tr2. 63 :9-20.)
33 FMSHRC Page 817

mandatory safety standard, establishing the first two elements of a flagrant violation. 30 U.S.C.
§ 820(b)(2). See discussion supra Part III.D. l. In light of my conclusion that Stillhouse
deliberately disregarded an unjustifiable, reasonably likely risk of death or serious bodily injury
in committing this violation, I also conclude that Stillhouse acted with reckless disregard.
Finally, as discussed above, Stillhouse's conduct in failing to eliminate this violation was
highly likely to bring about fatal injuries to eight miners. Accordingly, Stillhouse's reckless
failure to make reasonable efforts to eliminate its known violation of 30 C.F.R. § 75.313
reasonably could have been expected to cause death or serious bodily injury, thus establishing the
third and fourth elements of a flagrant violation. 30 U.S.C. § 820(b)(2). See discussion supra
Part III.D.2. I conclude that all of the elements of a flagrant violation of 30 C.F.R. § 75.313 are
established in this case. Citation No. 6665036 is AFFIRMED as a flagrant violation.
4.

Conclusions on Other Issues
a.

S&S

Though Stillhouse disputed whether this violation was S&S prior to the hearing, it
stipulated in its post-hearing briefthat this violation was S&S. (Resp't Br. 4.) Nevertheless, in
light of the novel nature of this case, it is worth discussing the S&S character of this violation.
Section J04(d).ofthe Mine Act defines an S&S violation as one "of such nature as could
_
significantly and substantially contribute to the cause and effect of a coal or other mine safeiy or
health hazard." 30 U.S.C. § 814(d). A violation is S&S "if, based on the particular facts·
surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a rea.sonably serious nature." Nat 'I Gypsum Co., 3 FMSHRC at .
825. To establish an S&S violation under National Gypsum, the Secretary must prove:
(1) the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to safety-contributed to by the violation;
(3) a reasonable likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of a reasonably
serious nature.

Mathies Coal Co., 6FMSHRC1, 3-4 (Jan. 1984) (citation omitted); accord Buck Creek Coal v.
MSHA, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secy ofLabor, 861F.2d99, 103
(5th Cir. 1988) (approving the Mathies criteria). An evaluation of the reasonable likelihood of
injury should be made assuming continued normal mining operations. US. Steel Mining Co., 7
FMSHRC 1125, 1130 (Aug. 1985).
The parties agree that Stillhouse violated 30 C.F.R. § 75.313, a mandatory safety
standard. As discussed above, Stillhouse's decision to shut off its mine fan and extract coal
created an environment ripe for the accumulation of explosive mixtures of methane and coal
dust. See discussion supra Part IV .A.3 .a. Amidst these conditions, Stillhouse mined coal and

33 FMSHRC Page 818

failed to shut dowri. its underground electrical circuits and equipment. See discussion supra Part
N .A.3.a. These activities created the high risk of a mine explosion, a discrete safety hazard. Id.
Though a mine explosion did not actually occur, should Stillhouse have continued its
violation--and there was every indication that the remaining three entries would have been cut
out to the surface-and these risks persisted, a mine explosion would have been highly likely.
Given the nature of this hazard, fatal injury was highly likely. This violation satisfies all four of
the Mathies criteria, and Citation No. 6665036 is AFFIRMED as S&S.
b.

Unwarrantable Failure

The unwarrantable failure terminology derives from section 104(d) of the Mine Act and
refers to more serious conduct by an operator in connection with a violation. 30 U.S.C. § 814(d).
In Emery Mining, the Commission determined that an unwarrantable failure is aggravated
conducted constituting more than ordinary negligence. 9 FMSHRC 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); see also Buck Creek Coal, 52 F.3d at 136
(approving the Commission's unwarrantable failure test).
Whether conduct is "aggravated" in the context of unwarrantable failure is determined by
looking at all the facts and circumstances of each case to see if any aggravating factors exist,
such as the length of time that the violation has existed, the extent of the violative condition,
whether the operator has been placed on notice that greater efforts are necessary for compliance,
the operator's efforts in abating the 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 FNISHRC 192, 195
(Feb. 1994);Peabody Coal, 14 FMSHRC at 1261; BethEnergy Mines, 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. Consolidation Coal Co., 22
FMSHRC at 353.
As discussed above, Stillhouse's violation created the high risk of fatal injury. See
discussion supra Part N.A.3.a. Stillhouse's violation persisted over a period of six hours. It
mined coal during the fan shutoff, failed to withdraw its miners, and did not turn off its
underground electrical circuits and equipment, all in violation of 30 C.F.R. § 75.313. Its
management pleaded guilty to criminal charges of violating 30 C.F.R. § 75.313, and as discussed
above, Stillhouse was well aware of this violation. See discussion supra Part IV.A.3.b. Months
prior to committing this violation, Stillhouse knew that it was obligated to submit a ventilation
plan to address the cutouts it planned to make at the 002 section because the cutouts would
significantly alter Mine No. l's ventilation. Stillhouse ignored its obligation to address these

33 FMSHRC Page 819

risks in violation of 30 C.F.R. § 75.313. Each of the aggravating factors typically considered in
determining an unwarrantable failure is present in this case. Citation No. 6665036 is
AFFIRMED as an unwarrantable failure to comply with 30 C.F.R. § 75.313. 27
5.

Penalty

Under Section 1 lO(i) of the Mine Act, the Administrative Law Judge must consider six
criteria in determining an appropriate civil penalty:
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.
30 u.s.c. § 820(i).
The parties stipulated that the penalties proposed in this case are appropriate to the size of
Stillhouse.'s business, that they will not affect Stillhouse's ability to continue its business, and
that Stillhouse demonstrated good faith in attempting to achieve rapid compliance after
notification of the violations. (Trl. 6:5-16, 7:15-25.) I have also considered the Assessed
Violation History Report. (Ex. P-10.) Generally, Stillhouse does not have an excess history of
violations, and it has no previous violations of this particular standard.
Nevertheless, Citation No. 6665036 involves Stillhouse's flagrant violation of30 C.F.R.
§ 75.313. Here, Stillhouse acted with reckless disregard, creating the high likelihood that eight
miners would suffer death or serious bodily injury. Short of an acttial fatality, this violation
involves nearly the highest level of negligence and gravity conceivable under the Mine Act. The
maximum penaltypermitted'bythe Mine Act is $220,000. 30 U.S.C. § 820(b)(2). The Secretary
has proposed a penalty of $212,700, and in light of the facts and circumstances in this case, I
hereby assess a civil penalty of$212,700 for this violation.

27

I reach this conclusion notwithstanding Stillhouse's general objection that the Secretary
failed to allege unwarrantable failure as to the violations in this case. Stillhouse's reliance on
Cyprus Emerald Resources is inapposite to this case. (Resp't Br. 18.) In Cyprus Emerald
Resources, the Commission vacated the Administrative Law Judge's unilateral modification of
two section 104(a) citations to 104(d) citations. See id. at 819 (vacating the Administrative Law
Judge's modifications in Cyprus Emerald Res. Corp., 17 FMSHRC 2086, 2103-04, 2107 (Nov.
1995) (ALJ)). Any violation cited under section 104(d)(l) of the Mine Act must include an
allegation of unwarrantable failure. Here, the Secretary issued the citation and orders in this case
under section 104(d)( 1), thus alleging unwarrantable failure as to every violation in this case.
Stillhouse's contention has no merit.

33 FMSHRC Page 820

B.

Order No. 6665037
1.

Issues Presented

Citation No. 6665037 alleges a violationof30 C.F.R. § 75.324, amandatorysafety
standard. Stillhouse stipulated to the fact of the violation in Citation No. 6665037. (Trl.
5:21-22; Resp't Prehr'g Report 2.) The parties presented the following issues in regard to
Citation No. 6665037:

2.

a.

Whether the violation was flagrant, as defined by 30 U.S.C.
§ 820(b){2);

b.

Whether Stillhouse acted with reckless disregard in committing the
violation;

c.

Whether the violation was caused by Stillhouse's unwarrantable
failure to comply with 30 C.F.R. § 75.324;

d.

Whether the violation was highly likely to result in fatal injuries to
eight miners; and

e.

Whether the vioiation of 30 C.F.R. § 75.324 was S&S.

The Parties' Arguments
; a.

The Secretary

The Secretary argues that this standard prohibits intentional changes in a mine' s
ventilation unless certain procedures are followed. (Pet'r Br. 27 .) Should such a change take
place, it requires the mine's electrical circuits to be shut down and its equipment to be turned off.
(Id. at 29.) As with Citation No. 6665036, the Secretary reiterates her concern over a mine
explosion resulting from Stillhouse's mining operations during the fan shutoff. (Id. at 28-29.)
The Secretary additionally points to the dangers related to Stillhouse's decision to tum the mine
fan back on while its miners were exiting the mine. (Id. at 29-30.) Noting that Stillhouse never
shut down its electrical circuits or belt haulage system, the Secretary argues that when Stillhouse
restarted the mine fan it furthered the risk of a mine explosion. (Id.) The cutouts at the 002
section destroyed Mine No. 1's ventilation system and allowed the mine fan to draw
contaminated air the wrong way through the mine. (Id.) That air could have swept explosive
accumulations of dust and methane over energized non-permissible equipment or the belt
haulage system, sparking a catastrophic mine explosion. (Id.) Because Stillhouse intentionally
caused this violation and failed to eliminate it, the Secretary argues that it should be found to be
flagrant. (Id. at 32.)

33 FMSHRC Page 821

b.

Stillhouse

Stillhouse points out that the facts and issues underlying this violation essentially track
those at issue in Citation No. 6665036. (Resp't Br. 6; Resp't Reply 2.) Both violations involve
Stillhouse's mining operations surrounding the initial shutdown and subsequent turning back on
of the mine fan. Accordingly, Stillhouse's arguments concerning Citation No. 6665036 apply to
Order No. 6665037, as well. (Resp't Br. 6; Resp't Reply 2.) See discussion supra Part N.A.2.b.
3.

Whether the Violation Was Flagrant
a.

Risks of Stillhouse's Violation of§ 75.324

The mandatory safety standard at 30 C.F.R. § 75.324, sets forth, in part:
(b) Intentional changes [to mine ventilation] shall be made only under the
following conditions:
(1) Electric power shall be removed from areas affected by the ventilation change
and mechanized equipment in those areas shall be shut off before the ventilation
change begins.
(2) Only persons making the change in ventilation shall be in the mine.
30 C.F.R. § 75.324(b)(l}-(2).
Stillhouse violated this standard by intentionally changing its mine ventilation not once
but twice during the same shift. First, in the early morning hours of December 3, 2006,
Stillhouse shut down its mine fan for six hours, ceasing the flow of over 200,000 CFM of air
through the mine. Stillhouse did not shut down its underground electrical circuits or equipment.
Eight miners remained underground, as Stillhouse mined 700 tons of coal for six hours during
the fan shutoff. As admitted by Stillhouse, this conduct violated the requirements of30 C.F.R.
§ 75.324(b)(l}-(2). I have discussed how Stillhouse's mine fan shutdown, in conjunction with
its mining activities, made it highly likely its eight miners would suffer deadly injuries. See
discussion supra Part N.A.3.a. Stillhouse did not address the serious risks posed by its conduct.
Rather, Stillhouse's failure to correct its initial violation of § 75.324 exposed eight miners to the
high risk of death.
However, shortly after Johnson ordered foreman Osborne and his men to leave the mine,
foreman Sergent, who had been underground with the other miners, emerged from underground
and turned the mine fan back on. The full force of the mine fan came back online, moving
significant quantities of air throughout Mine No. l's extensive network of entries and crosscuts.
Stillhouse yet again initiated a significant change in its mine ventilation. Again, it did so with
miners underground and the electrical power on in contravention of 30 C.F.R. § 75.324.

33 FMSHRC Page 822

With two cutouts in place at the end of the mine opposite from the mine fan, the suction
of the mine fan drew air directly from the 002 section instead of pulling it from the entrance, out
to the 002 section, and back again. Stillhouse's mining activities during the six-hour mine fan
shutoff created the high likelihood of that explosive concentrations of methane and coal dust
would come into contact with the many ignition sources in Mine No. 1. See discussion supra
Part IV.A.3.a.
The mine fail. was turned on ten to twenty minutes after Johnson ordered the miners to
leave the mine, but the miners did not emerge from underground until an hour after they were
requested to do so. When Johnson gave the order to evacuate the mine, the miners were working
at the cutouts of the 002 section, just a little over five miles from the mine entrance. Foreman
Osborne admitted as much when Johnson gave the order to evacuate the mine, as Osborne
claimed he had "good air" coming through the cutouts. Given the timing of the sequence of
events in this case, had the miners left the 002 section at the exact moment they were ordered to
do so, they would have progressed only one- to two-sixths of their way to the mine entrance by
the time the fan was turned on. At that rate of travel, the miners would have advanced
approximately 1.6 miles from the 002 section, at most, by the time the mine fan was restarted,
placing them in the danger zone between the 002 and 003 section. (Ex. R-3.) As noted above,
once Sergent turned the fan back on, potentially contaminated air from the 002 section flowed up
the man trip roadway in the same direction as the miners' travel out of the mine. With the belts
still running in the mine and the attendant risk of an ignition, the miners, rather than escaping the
risk of a mine explosion, instead traveled through potentially combustible air as they made their
way toward the mine entrance. This second intentional change in ventilation comprising
Stillhouse's violation of30 C.F.R. § 75.324 also exposed these seven miners remaining
underground to the risk of a deadly mine explosion.
b.

.Application of the Elements of a Flagrant Violation and
Determination of Reckless Disregard

Above, I concluded that Stillhouse knew of the implications of cutting to the surface of
the 002 section. See discussion supra Part IV.A.3.b. Stillhouse knew it was obligated to submit
an amendment to its ventilation plan prior to making these cutouts. Id. While committing this
violation, Stillhouse knew the highly detrimental impact its conduct had on its MSHA-approved
ventilation plan. Id. Rather than attempting to follow the ventilation plan, Stillhouse
misguidedly attempted to reduce the danger-of its conduct by purposefully shutting down the
mine fan. Id. Proper ventilation is vital in underground coal mining, so Stillhouse knew that it
committed this violation of30 C.F.R. § 75.324 in turning the mine fan off and back on again.
The circumstances surrounding this violation demonstrate a concerted effort by Stillhouse to
avoid the safety obligations owed to its miners. Id. Stillhouse's knowledge that the cutouts on
the 002 section would destroy Mine No. 1's ventilation system, alone, counseled against its
actions. Stillhouse's argument that its negligence should be reduced because the Secretary did
not demonstrate that mine management knew about the air reversal in the mine is unavailing.
The only immediate benefit to come out of Stillhouse' s conduct was 700 tons of coal.

33 FMSHRC Page 823

Given the nature of the risks involved in Stillhouse's conduct, a reasonably prudent
operator would not have purposefully altered the mine ventilation as Stillhouse did in this case.
Even if the reasonably prudent operator incorrectly determined that shutting the mine fan was
appropriate, it would have at least taken the precautions of moving the miners not associated with
the shutdown to the surface and shutting down its underground electrical circuits and equipment.
The reasonably prudent mine operator also would not have turned its fan back on with miners
and energized equipment underground. Stillhouse's violation created the high risk of death to
eight miners. See discussion supra Part IV.B.3.a. Stillhouse did not take the steps of a
reasonably prudent mine operator to eliminate its known violation of30 C.F.R. § 75.324 and
deliberately disregarded an unjustifiable, reasonably likely risk of death or serious bodily injury.
Stillhouse committed a reckless failure to make reasonable efforts to eliminate a known violation
of a mandatory safety standard, establishing the first two elements of a flagrant violation.
30 U.S.C. § 820(b)(2). See discussion supra Part ill.D.l.
Moreover, in light of my conclusion that Stillhouse' s reckless failure to eliminate its
violation of 30 C.F .R. § 75.324 was highly likely to bring about death to eight miners, I
determine that the third and fourth elements of a flagrant violation are also satisfied. 30 U.S.C.
§ 820(b)(2). See discussion supra Part ill.D.2. Because I conclude all the elements of a flagrant
violation are established in this case, Order No. 6665037 is AFFIRMED as a flagrant violation.
4.

Disposition of Other Issues
a.

S&S

As with the violation in Citation No. 6665036; Stillhouse initially disputed whether this
violation was S&S prior to the hearing but later stipulated in its post-hearing brief that this
violation indeed was S&S. (Resp't Br. 4.) Again, due to the unique nature of the legal issues
before me, I.briefly note why this violation is S&S.
Order No. 6665037 concerns the violation of 30 C.F.R. § 75.324, a mandatory safety
standard. I have concluded above that Stillhouse's commission of this violation directly
contributed to the risk of a deadly mine explosion. See discussion supra Part IV.B.3.a. I have
also concluded above that such an explosion was highly likely during the commission of the
violation. Id. Stillhouse's violation directly compromised its mine ventilation system, and the
continuation of its operation in this manner would have furthered the high risk of such an event.
Given the nature of a mine explosion, fatal injuries were highly likely to occur to eight miners.
Having met all four of the Mathies criteria for an S&S violation, Order No. 6665037 is
AFFIRMED as S&S.
b.

Unwarrantable Failure

Several factors bear on the determination of whether Stillhouse committed an
unwarrantable failure to comply with 30 C.F.R. § 75.324. As with Citation No. 6665036, this
33 FMSHRC Page 824

violation involved the high risk of fatal injury. Indeed, the intentional ventilation changes in this
case took place in conjunction with Stillhouse's decision to mine 700 tons of coal during the sixhour fan shutoff. Stillhouse was well aware ofits violation of30 C.F.R. § 75.324. Stillhouse
knew of its obligations to properly ventilate Mine No. 1 as well as the implications of its failure
to make plans to do so following the cutouts on the 002 section. Together, these aggravating
factors weigh in favor of my conclusion that Stillhouse committed an unwarrantable failure to
comply with 30 C.F.R. § 75.324. Order No. 6665037 is AFFIRMED as an unwarrantable failure
to comply with 30 C.F.R. § 75.324.

5.

Penalty

As noted above, the parties have stipulated that the proposed civil penalty is appropriate
for the size of Stillhouse's business, that the proposed penalty will not affect Stillhouse's ability
to continue its business, and that Stillhouse made a good faith effort to achieve rapid compliance
after notification of the violation. See discussion supra Part IV.A.5. Stillhouse has no prior
violations of the standard at issue in this order. (Ex. P-10.) However, as I have noted in detail,
the gravity and negligence of Stillhouse's violation of§ 75.324 was severe. See discussion supra
Part N.B.3-.4. Based on these considerations, and particularly on the severity of the violation's
gravity and negligence, I conclude that the Secretary's proposed civil penalty of$212,700 is
warranted by Stillhouse's conduct. I hereby assess a civil penalty of $212,700.
C.

Order No. 6665039
1.

Issues Presented

Citation No. 6665039 alleges a violation of 30 C.F.R. § 75.360, a mandatory safety
standard requiring Stillhouse to conduct safety inspections prior to each shift.
Stillhouse stipulated to the fact of the violation in Citation No. 6665039. (Trl. 5:25-6:3.)
The parties present the following issues in regard to Citation No. 6665039:
a.

Whether the violation was flagrant, as defined by30 U.S.C.
§ 820(b)(2).

b.

Whether Stillhouse acted with reckless disregard in committing the
violation.

c.

Whether the violation was caused by Stillhouse's unwarrantable
failure to comply with 30 C.F.R. § 75.360;

d.

Whether the violation was highly likely to result in permanently
disabling injuries to eight miners; and

3~ FMSHRC Page

825

e.·
2.

Whether the violation was S&S.

The Parties' Arguments
a.

The Secretary

In this violation, Stillhouse failed to conduct a preshift examination at the belt power
centers in the Wet Area of the mine for three shifts prior to the events on December 3, 2006.
(Pet'r Br. 41-42.) The Secretary asserts that Stillhouse had a deliberate plan to tum off the mine
fan and makethe cutouts at the 002 sections. (Id. at 50.) The Secretary argues that in doing so,
Stillhouse failed to make efforts to identify potential fire or methane hazards. (Id. at 46-49.)
According to the Secretary, the gravity of Stillhouse' s failure was compounded by the fact that
miners must travel through this area to exit the mine, increasing the likelihood of exposure to the
dangerous conditions created by Stillhouse. (Id. at 46.) Because Stillhouse deliberately
disregarded the known risks of failing to conduct a preshift examination of the Wet Area, the
Secretary argues that the violation was flagrant. (Id. at 50-51.)

b.

Stillhouse

Stillhouse argues that Order No. 6665039 is "[t]he most curious viOlation." (Resp. Br.
15.) Stillhouse stresses that the Secretary has not even shown the existence of the dis~rete safety
hazard necessary to establish an S&S violation. (Id. at 16.) Stillhouse points to the fact that once
a preshift examination was conducted in the Wet Area, no hazardous conditions were found.
Stillhouse relies on the Administrative Law Judge's decision in Manalapan ,.Mining Co.
(Manalapan 1), 16 FMSHRC 1669 (Aug. 1994) (ALJ), in support of its position. (Id.)
According to Stillhouse, the Judge in Manalapan Mining determined that the failure to conduct a
preshift violation was not S&S because subsequent investigation of the area revealed no hazards.
(Id.) Similar,ly, because no hazards were discovered in this particular case, Stillhouse argues the
· violation cannot be S&S, much less flagrant. (Id.)
Stillhouse also argues that because the preshift examinations of the Wet Area should have
been conducted prior to the fan shutdown, they would not have revealed any of the risks
associated with the ventilation change. (Resp't Br. 16.) Stillhouse further asserts that its
ventilation changes have no relationship with this violation. (Resp 't Reply 9.) Stillhouse
concludes that the Secretary cm.mot show any factual predicate for her determination on the
gravity of its violation. (Resp't Br. 16-17.) Finally, Stillhouse contends its negligence as to this
violation is obviated by its diligence in conducting preshift examinations in the other parts of the
mine. (Id. atl 7.)
3.

Whether the Violation Was Flagrant_
a.

Risks of Stillhouse's Violation of§ 75360

33 FMSHRC Page 826

The gravity ofStillhouse's violation must be assessed in light of its mining operations
during third-shift on December 3. As discussed above. Stillhouse was reminded about its safety
obligations nearly a year in advance of cutting to the surface of the 002 section. See discussion
supra Part IV.A.3.b. Indeed, during that time Stillhouse had revealed to Johnson and Clark that
it would cut to the outside of the 002 section. Stillhouse's mining operation apparently continued
to advance ceaselessly until it broke to the outside at the 002 section. When Stillhouse cut
outside of the mine, it did not have a proper ventilation plan in place to handle the cutouts'
severely compromising effect on the mine's ventilation system. histead Stillhouse completely
shut down the mechanical device ventilating the mine. These actions created a high risk of a
mine explosion throughout Mine No. 1, including in the Wet Area. See discussion supra Part
N .A.3.a. Such an explosion could have been precipitated by transient hazards, such as methane,
present in the Wet Area where Stillhouse' s belt haulage system was located. Preshift
examinations in this area would have detected problems associated with the belt haulage system,
which had numerous potential ignition sources associated with its electrical components and belt
rollers. (Trl. 198:21-200:6.)
Amidst this scheme to breach its MSHA-approved ventilation plan and mine coal under
extremely dangerous underground conditions, Stillhouse failed to conduct a preshift examination
in the Wet Area. Stillhouse did not miss performing just one preshift examination. Stillhouse
did not perform preshift examinations prior to any of the shifts on December 2, 2006. The \Vet
Area also lies under the water table. Water inhibits methane's escape out of the niine to the
surface~ increasing the probability of methane accumulations in this-area. That this area was wet
· did not reduce the risk of methane ignitions. The belts hung from the ceiling in the Wet Area.
-(Trl. 250:18-21; Tr2. 85:2-4.) Being above the water, coal still could have stuck in the belt
"rollers, thus allowing for the possibility of ignitions precipitated by the friction of the belt. (Trl.
250:22-251:2.)

It is true that the Wet Area's location relatively close to the mine entrance meant that a
mine explosion in this area would have been less likely to impact the miners working on the 002
section during the fan shutdown. However, miners must pass the Wet Area to exit the mine.
Moreover, Mine No. 1's carbon monoxide system was compromised during the mine fan
shutdown. The carbon monoxide system's reduced ability to alert miners to the dangers of a
mine fire in the Wet Area significantly heightened the miners' chances of receiving little or no
notice of encountering a mine fire as they exited the mine. The risks associated with the
violation primarily concerned the miners' risk of encountering a mine fire rather than being in the
midst of a mine explosion. I determine that the risk of serious bodily injary, and not necessarily
death, is appropriately associated with this violation. Serious bodily injuries may include
permanently disabling injuries, such as being severely burned or lung damage from smoke
inhalation. This violation was highly likely to result in permanently disabling injuries to eight
mmers.
Stillhouse believes that, in accordance with "well-settled law," the Administrative Law
Judge's decision in Manalapan 1 supports its argument that Order No. 6665039 was not even

33 FMSHRC Page 827

S&S. (Resp't Reply 8.) It argues that because no hazardous conditions were found upon
MSHA's inspection of the Wet Area, the violation was not S&S. However, as a threshold
matter, the decisions of the Commission's Administrative Law Judges are not binding precedent.
29 C.F.R. § 2700.69(d). More important is the Commission's actual precedent on this issue. In
Manalapan Mining 11, four commissioners joined in vacating the conclusion of the
Administrative Law Judge relied upon by Stillhouse. 18 FMSHRC at 1382 (Holen & Riley,
Comm'rs, concurring); 18 FMSHRC at 1396 (Jordan & Marks, Comm'rs, concurring). The
Commissioners unanimously agreed that it is incorrect as a matter of law for a Commission
Administrative Law Judge to determine that a preshift violation is not S&S based on a postviolation preshift inspection that failed to disclose any hazards. Id. The Commission recently
relied upon the rule in Manalapan Mining 11, in part, to affirm a Commission Administrative
Law Judge's decision that a preshift violation was S&S. Jim Walter Res., Inc., 28 FMSHRC
579, 604 (Aug. 2006) (citing 18 FMSHRC at 1382, 1396). The Commission explained that
"because preshift examinations have a prophylactic purpose and because certain mine conditions
are transitory in nature, later examinations are not sufficiently indicative of the conditions that
may have existed at the time the area should have been examined." Id. Thus, the Administrative
Law Judge's decision in Manalapan I is not entitled to any persuasive weight on this issue.
Stillhouse's assertion that its preshift violation was not S&S because the post-violation
inspection of the area revealed no hazards is incorrect as a matter oflaw.
h.

Application of the Elements of a Flagrant Vio1ation and
Determination of Reckless Disregard

. Here, even assuming that a reasonably prudent mine operator made the mistaken
conclusion that turning off its mine fan and producing coal for nearly an entire shift was
warranted, Stillhouse's failure to conduct a preshift exam of the Wet Area was not warranted..
Stillhouse indicated its intention to cut to the surface of the 002 section nearly a year before
December 3, 2006. MSHA provided Stillhouse ample notice of the implications of its decision
to make the cutouts. See discussion supra Part IV.A.3.a. Stillhouse's management was aware
that cutting to the surface at the 002 section would not comply with its MSHA-approved
ventilation plan. Stillhouse had long-standing plans to cut to the surface of the 002 section, and
it had long-standing notice that these actions would be harmful. A reasonably prudent mine
operator would have at least conducted a proper preshift examination of the Wet Area. The Wet
Area had multiple potential ignition sources. Ensuring a safe environment was vital in light of
Stillhouse's conduct on the night of December 3, 2006. As recognized by the Commission,
"[t]he preshift examination requirement is unambiguous and is of fundamental importance in
assuring a safe working environment underground .... It is common knowledge that the preshift
examination must be completed and recorded at the surface before miners are allowed to enter a
mine." Buck Creek Coal Co., 17 FMSHRC 8, 15 (Jan. 1995). Stillhouse's failure to conduct
these examinations was known to it.
Stillhouse believes that its failure to conduct a preshift examination of the Wet Area is
mitigated by the fact that the examination would not have revealed the risks associated with the

33 FMSHRC Page 828

mine fan shutdown. Here, Stillhouse acknowledges that the gravity of the this violation was
connected to the ventilation changes in Mine No. 1, contrary to its assertion otherwise. Johnson
did recognize at the hearing that a preshift examination would not have revealed hazards
associated with the mine fan shutdown. (Trl. 250:2-14.) However, Stillhouse's argument
ignores how the preshift examinations of the Wet Area could have at least revealed the hazards
associated with normal mining operations, such as the accumulation of methane gas. The
circumstances surrounding Stillhouse's extraordinary changes to Mine No. 1 's ventilation
compounded the risk of a dangerous mine explosion in this area. See discussion supra Part
N.C.3.a. If anything, the risks associated with Mine No. 1's normal mining operations were
amplified by Stillhouse's intentional ventilation changes.
Stillhouse also criticizes Johnson for stating in the Secretary's interrogatory responses
that "[t]his refusal to conduct a preshift examination in light of the lack of ventilation and the
mining of coal on three shifts without such preshift examination of this area demonstrates a
reckless disregard for this standard." (Ex. R-1, at 11.) The idea that the risks of Stillhouse' s
violation were heightened by the mine fan shutdown underlies Johnson's interrogatory statement,
not the mistaken assertion that the gravity of the violation was high because Stillhouse failed to
conduct a preshift examination while the fan was off. By not conducting any preshift
examinations of the Wet Area prior to destroying the ventilation of its mine, Stillhouse's thirdshift operation on December 3, 2006, resembled a pilot flying without instruments through the
mountains while blinded by fog. In light of these considerations, Stillhouse's ability to comply
with its regulatory mandate to conduct presbift examinations in the other areas of its mine does
not reduce the severe gravity and negligence of its violation.

Jn failing to examine the Wet Area, -Stillhouse did not take the steps a reasonably prndent
mine operator would have taken to eliminate the violation of 30 C.F.R. § 75.360. Stillhouse's
violation created the high risk of permanently disabling injury to eight miners. See discussion
supra Part N,C.3.a. Stillhouse deliberately disregarded an unjustifiable, reasonably likely risk of
serious bodily injuries in failing to eliminate its violation. Stillhouse recklessly failed to make
reasonable efforts to eliminate a known violation of a mandatory safety standard, establishing the
first two elements of a flagrant violation. 30 U.S.C. § 820(b)(2). See discussion supra
Part ill.D. l. The first two elements ofa flagrant violation are established as to this violation. In
deliberately disregarding an unjustifiable, reasonably likely risk of serious bodily injury, I also
conclude that Stillhouse acted with reckless disregard in committing this violation.
Additionally, Stillhouse's failure to eliminate its violation of30 C.F.R. § 75.360 was
highly likely to result in permanently disabling injuries to eight miners. Accordingly, the third
and fourth elements of a flagrant violation are established in this case. 30 U.S.C. § 820(b)(2).
See discussion supra Part ill.D.2. Because I conclude that all of the elements of a flagrant
violation have been established, Order No. 6665039 is AFFIRMED as a flagrant violation.

33 FMSHRC Page 829

4.

Disposition of Other Issues
a.

S&S

This violation involves the breach of a mandatory safety standard. In committing the
violation, Stillhouse created a discrete safety hazard by heightening the risk of a mine explosion.
It did so when it failed to conduct a preshift examination of the Wet Area, an area through which
the belt haulage system rurts and turns with head drives and power centers, prior to events during
the third-shift on December 3, 2006. See discussion supra Part IV.C.3.a. The hazard of a mine
explosion in this part of the mine was highly likely to result in permanently disabling injuries.
Id. Satisfying all of four of the Mathies criteria, Order No. 6665039 is AFFIRMED as S&S.

b.

Unwarrantable Failure

Here, Stillhouse' s violation involved the high risk of permanently disabling injuries. See
discussion supra Part IV.C.3.a. The failure to conduct a preshift examination occurred·during
the three shifts immediately prior to Stillhouse' s purposeful engagement in highly risky mining
conduct where it breached its MSHA-approved ventilation plan and mined with the fan shut off.
This conduct heightened the risks associated with its failure to conduct preshift examinations,
aggravating its failure to do so. Stillhouse was aware of this violation. All of these factors
establish that Stillhouse's failure to conduct the examinations demonstrated an aggrav~ted
disregard, constituting more than ordinary negligence in violating 30 C.F.R. § 75.360. Order No.
6665039 is AFFIRMED as an unwarrantable failure to comply with a mandatory safety standard.
Penalty
The parties stipulated that the proposed civil penalty is appropriate for the size of
Stillhouse's business, that it will not impact Stillhouse's ability to stay in business, and that
Stillhouse made a -good faith effort to achieve rapid compliance after notification of the violation.
See discussion supra Part IV .A.5. I have considered that Stillhouse has committed several
minor prior violations under 30 C.F.R. § 75.360. (Ex. P-10, at 3.) Here, though, the gravity and
negligence of Stillhouse's violation was very high. Nevertheless, this violation involved the high
likelihood of permanently disabling injuries, not fatal injuries. I conclude that the Secretary's
proposed penalty of $158,000 is warranted by Stillhouse's conduct. I hereby assess a civil
penalty of $15 8,000 against Stillhouse.
D.

Order No. 6665038
1.

Issues Presented

Order No. 6665038 alleges a violation of30 C.F.R. § 75.220(a)(l), a mandatory safety
standard.

33 FMSHRC Page 830

The parties present the following issues in regard to Citation No. 6665038:

2.

a.

Whether a violation of 30 C.F.R. § 75.220(a)(l) occurred.

b.

Whether the alleged violation was :flagrant, as defined by
30 U.S.C. § 820(b)(2).

c.

Whether Stillhouse acted with reckless disregard in committing the
alleged violation.

d.

Whether the alleged violation was caused by Stillhouse's
unwarrantable failure to comply with 30 C.F.R. § 75.220(a)(l);

e.

Whether the alleged violation was highly likely to result in fatal
injuries to two miners; and

f.

Whether the alleged violation of30 C.F.R. § 75.220(a)(l) was
S&S.

The Parties' Argwnents
a.

The Secretary

The Secretary argues that Stillhouse intentionally disregarded its roof control plan by .
cutting the entries of the 002 section within 150 feet of the surface, called the "outcrop," wider
than the 18-foot width prescribed by the plan. (Pet'r Br. .36.) The Secretary relies on evidence
that mine roofs are weaker the closer they are to the surface, and, as a result, entries must narrow
as mining advances to the outside. (Id. at 35.) As for the hazards in this particular case, the
Secretary argues that Stillhouse disregarded obvious hazards, including hill seams and cracks.
(Id. at 34, 36.) The Secretary points out that the roof in one of the entries had collapsed. (Id. at
36.) The Secretary also points out that Stillhouse's failure to follow its roof control plan
occurred under circumstances where crossbars or steel beams were warranted to support the roof.
(Id.) The Secretary emphasizes that Stillhouse improperly used thin metal straps to support an
area of the roof affected by hill seams, rather than the required crossbars or steel beams. (Id.)
The Secretary stresses that had Stillhouse used properly sized metal straps, called steel channels,
it still would have been required to further reduce the width of the entries to sixteen feet. (Id.)
According to the Secretary, because Stillhouse intentionally disregarded these hazards, it
committed a flagrant violation. (Id. at 40.)
b.

Stillhouse

Stillhouse's major argument is that a violation did not actually occur. (Resp't Br. 12.)
Stillhouse argues that Field Office Supervisor Johnson and Inspector Clark gave vague, overly

33 FMSHRCPage 831

broad definitions of the term "outcrop." (Id.) Relying on Secretary ofLabor v. Reed, 16
FMSHRC 2108 (Oct. 1994) (ALJ), Stillhouse's position is that MSHA's Johnson and Clark
improperly understood "outcrop" to mean a natural exposure of coal to the surface and a
mechanically created exposure to the surface, when the term actually means just the natural
exposure of coal to the surface. (Id. at 12-13.) Because Johnson and Clark did not testify about
the location of the natural outcrop, Stillhouse argues that the Secretary has not proven her case.
Even ifthe Secretary establishes a violation, Stillhouse argues that the gravity and
negligence must be reduced. (Resp't Br. 13.) Stillhouse states that the actions of Johnson and
Clarie provide the most telling evidence in support of its position. (Id.) Stillhouse notes that
Johnson and Clark inspected the entries without installing any supplemental supports, tiling a
miner with them to the area. (Id. at 13-14.) According to Stillhouse, "[i]t defies credibility to
contend that these inspectors would expose themselves and a miner to conditions they believed to
be highly likely to cause a fatality." (Id. at 14.) Stillhouse also asserts that Stillhouse had
substantially complied with its roof control plan by using roof bolts of the proper length and
spacing and cable bolts as supplemental support. (Id. at 13; Resp't Reply 7.) Stillhouse relies on
Johnson's acknowledgment that the roof bolts were supporting the areas where the roof had
cracked. (Resp't Br. 13.) Stillhouse also specifically discounts the hazards posed by the roof fall
in Entry No. 2 and the inadequately supported hill seams in Entry No. 3. (Resp't Reply 7.)
Finally, Stillhouse argues that the Secret8.ry cannot establish it knew about its violation
and consciously disregarded it. {Res:p't Br. 15; Resp't Reply 5-8.) Stillhouse criticizes
Johnson's assessments ofStillhouse's alleged negligence based on Johnson's allegedly
contradictory statements concerning Stillhouse's violation ofits roof contrvl plan. (Resp't Br. 5.)
Stillhouse further asserts that th~s violation does not even rise to the level of an unwarrantable
failure based on the Commission's decision in Virginia Crews Coal Co., 15 FMSHRC 2103
(Oct. 1993). (Resp't Reply 5--0.)
3.

Whether a Violation Occurred

The provision at 30 C.F.R. § 75.220(a)(l) requires "[e]ach mine operator [to] develop and
follow a roof control plan, approved by the District Manager, that is suitable to the prevailing
geological conditions, and the mining system to be used at the mine. Additional measures shall
be taken to protect persons if unusual hazards are encountered." The relevant part of Stillhouse's
roof control plan states:
When mining approaches within 150 feet of an outcrop:
Initial development sketch will apply ...
Width of places within 150 feet of the outcrop will be maintained no more than 18
feet wide. Roof bolts will be at least 12 inches longer than the minimum specified
in the Approved Roof Control Plan
(Ex. P-21, at 8.)

33 FMSHRC Page 832

As set forth by the Commission, "[i]t is well established that plan provisions are
enforceable as mandatory standards." Martin Cnty. Coal Corp.; 28 FMSHRC 247, 254 (May
2006) (citing UMWA v. Dole, 870 F.2d 662, 671 {D.C. Cir. 1989); Zeigler Coal Co. v. Kleppe,
536 F.2d 398, 409 {D.C. Cir. 1976); Energy West Mining Co., 17 FMSHRC 1313, 1317 (Aug.
12995); Jim Walter Res., Inc., 9 FMSHRC 903, 907 (May 1987)). The law governing the
interpretation of a regulatory standard applies to the interpretation of plan provisions. Martin
Cnty. Coal, 28 FMSHRC at 255 (citing Energy West, 17 FMSHRC at 1317).
As with statutory interpretation, the "'language of the regulation [or in this case, plan
provision] ... is the starting point for its interpretation."' Martin Cnty. Coal, 28 FMSHRC at
255 (quoting Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987)). If the terms of the
provision are clear, then they must be enforced as written unless the regulator intended a different
meaning or that meaning would lead to absurd results. .1.\1artin Cnty. Coal, 28 FMSHRC at 255
(citing Utah Power & Light Co., 11FMSHRC1926, 1930 (Oct. 1989)).
Here, the operative term "outcrop" is commonly understood in the mining community as
"[t]he part of a rock formation that appears at the surface of the ground." Am. Geological
Institute, Dictionary ofMining, Mineral, and Related Terms 383 (2d ed. 1997). The term "does
not necessary imply the visible presentation of the mineral on the surface of the earth, but
includes those depositions that are so near the surface as to be found easily by digging." Id.
Johnson's and Clark's statements ·that the outcrop is the. portion of the coal exposed to the
surface via either natural mechanical means are fully consistent with this definition. Indeed,
the plari~s requirements for outcrops appear directly below its requirements for openings to the
. surface, called "drift openings." (Ex P-21, at 8.) The overall context of the roof control plan
affirms the conclusion that the outcrop lies at the surface where the coal is exposed, whether or
not that surface was naturally or artificially created. Nothing in the roof control plan suggests
that MSHA and Stillhouse intended a contrary meaning.

or

As for Stillhouse's position on the definition of"outcrop," a threshold issue is
Stillhouse's reliance on the Administrative Law Judge's decision in Reed. As I note above in my
discussion ofStillhouse's arguments concerning the preshift violation, the decisions of the
Commission's Administrative Law Judges are not binding precedent. 29 C.F.R. § 2700.68(d).
My consideration of this issue is not controlled by Reed.
During the hearing, Stillhouse suggested how its interpretation of "outcrop" should be
applied. On cross-examination, Johnson was asked whether he knew the location of the outcrop
prior to the creation of the box cut outside of the 002 section. (Trl. 258:22-23.) The problem
with Stillhouse's focus on the pre-box cut location of the outcrop is that it ignores that the box
cut merely provides an area on the surface for the miners to emerge from underground through
the coal seam. (Tr1. 260: 10-19.) As discussed above, the purpose of narrowing the widths of
the mine's entries as mining advances within 150 feet of the outcrop is to stabilize the roof in
areas where it is expected to be much weaker. Only the span of roof between the underground
working area and the cutout to the surface at the box cut is relevant to the application of this

33 FMSHRC Page 833

component of the roof control plan. The location of the outcrop prior to creation of the box cut
has no relationship with this distance. Stillhouse's restrictive view of the term "outcrop" thwarts
the purposes of its roof control plan by creating the possibility of exceptions to the plan's
requirement for narrower entries in underground areas near the surface, which typically need
extra support. Based on these considerations, I conclude that the term "outcrop" in Stillhouse's
roof control plan refers to areas of coal both naturally and mechanically exposed to the surface.
Here, the outcrop was located at the box cut at the surface outside the 002' section.
When Johnson and Clark inspected the 002 section, they determined that the widths of
the entries located within 110 feet of the surface exceeded the 18-foot distance prescribed by the
roof control plan. The area where Johnson and Clark measured entry widths exceeding eighteen
feet falls within the outcrop, as defined by the roof control plan. Because Stillhouse violated its
roof control plan, I determine that Stillhouse committed the violation charged in Order No.
6665038.
4.

Whether Order No. 6665038 Constitutes a Flagrant Violation
a.

Risks of Stillhouse's Violation of§ 75.220(a)(l)

As Stillhouse advanced toward the surface in the 002 section and the second-shift drew to
a close, one of Stillhouse's miners tipped-.off MSHA by reporting poor roof conditions to an
MSHA field office supervisor at his home late at night on Saturday, December 2, 2006. When
Johnson and Clark arrived early the next morning, they indeed discovered dangerous roof
conditions. Glue that should have been anchoring the roof bolts was running out of their holes,
indicating that the roof was weak, as the roof bolts were not fully anchored. The roof was
cracked and sagging, that is, beginning to fall, in several locations. ·(Trl. 183:8-11.) Hill seams,
areas where the roofis particularly susceptible to falling, were present in Entry No. 3.
It is worth noting that Clark issued a citation under section 104(a) of the Mine Act for
Stillhouse's use of thin metal straps in securing the hill seams. (Ex. P-22, at 1.) Clark
determined that this violation was highly likely to result in fatal injuries to two miners and
concluded that the violation was S&S. (Id.) When hill seams are present, Stillhouse's roof
control plan permits the use of steel channels instead of crossbars or steel beams. (Ex. P-21, at
11.) Had Stillhouse used steel channels to support the hill seams, its roof control plan obligated
it to add cribs, posts, or jacks to limit the roadway to sixteen feet in width. (Id.) Stillhouse's
roof control plan, however, did not permit the use of thin steel straps in lieu of crossbars, steel
beams, or steel channels. (Id.) Reflecting the requirements of its roof control plan, Stillhouse
paid the violation as written by Clark.

In addition to all of these conditions, a significant roof fall measuring four feet thick and
running the width of the entry had occurred in Entry No. 2. After Johnson and Clark concluded
their inspection of the area, posts were installed to provide additional support in the outcrop area.

33 FMSHRC Page 834

The maxinium deviations from the MSHA-approved roof control plan in each entry
ranged from just under a foot to over three feet in Entry No. 3, which actually should have had
supports reducing its width to sixteen feet given Stillhouse's decision to use metal straps to
support hill seams in that area. Johnson and Clark identified numerous roof problems in the area,
including the section 104(a) S&S violation discussed above that was determined to be highly
likely to result in the death of two miners. Although many times roof falls do not occur when
cutting to the outside, one did in this case. fudeed, Johnson explained that even if the entry
where the roof fall occurred had been the proper width, in his judgment the fall would have
occurred anyway. Narrower roof entries increase the strength of a roof. Cumulatively, these
multiple hazards demonstrate how Stillhouse' s violation fostered the high risk of a roof fall.
Stillhouse attempts to counter the Secretary's assessment of the risks involved in its
conduct by emphasizing how Johnson and Clark inspected the entries at the cutouts without
installing supplemental roof supports. Stillhouse, in effect, criticizes Johnson and Clark for
doing their jobs, which is to inspect mines, even ones involving dangerous conditions. fu
recognition of the risks on the 002 section, Johnson and Clark continually monitored the roof
while they conducted their investigation to ensure that neither they nor the miners accompanying
them would be hurt by a roof fall. The conduct of Johnson and Clark during their inspection fails
to suggest that the area was not as dangerous as they allege.
Stillhouse further argues that it had provided some supplemental support in the entries to
the outcrop area. lt is true that Stillhouse was installing elongated roof bolts and cable bolts to
counteract the unstable roof conditions in accordance with its roof control plan. The roof bolts
were of the proper length and spacing. It is also true that the roof bolts anchored the roof where
it had cracked. Miners in the area are also required to remain under supported roof. (Ex. P-21. at
9.) However, glue was found to be running out of the holes containing some of the roof bolts,
meaning that they were not fully anchored in the roof. The support in the 002 section was not as
robust as Still}louse claims.
The major problem with Stillhouse's attempts to discount the severity of its violation is
that the numerous hazards in the entries of the 002 section demonstrate the toof was severely
compromised. The roof fall in Entry No. 2 and the hill seams in Entry No. 3 strongly indicated
the roof was prone to collapsing. As to these hazards, Stillhouse notes that the roof fall did not
crush any miners, asserting that it occurred in an area away from where they were working.
(Resp't Reply 7.) Stillhouse also notes that it had provided supports, albeit insufficient thin
metal straps, for the hill seams. (Id.) Nevertheless, these hazards remained unmitigated while
Stillhouse mined coal for nearly an entire shift during the fan shutoff. Stillhouse's observations
do not undermine how the presence of these hazards pointed to dangerous roof conditions in the
002 section.
The other hazards discovered in the 002 section corroborated the roof's weakened state.
The roof was soft and beginning to fall in the numerous places it had sagged. Cracks were
present in the section. Moreover, amidst all of these hazards, Stillhouse's continuing mining

33 FMSHRC Page 835

activity in the 002 section created vibrations affecting the roof(Trl. 244:1-4), and deadly loose
'"draw rock" could have fallen from the areas between the roof bolts, even though they were
properly spaced. (Tr2. 73:1-74:10, 75:15-16.) The dangerous roof conditions in this areahad
not been adequately addressed. (Tr2. 76:16.)
Consequently, that Stillhouse had complied with parts of its roof control plan is
unavailing with regard to the violation at issue in this order. The roof control plan merely sets ·
the floor of what is required to ensure miners' safety. The roof control plan regulation explicitly
states that "[a]dditional measures shall be taken to protect persons if unusual hazards are
encountered." 30 C.F.R. §75.220(a)(l).
Narrower entries create more stable roof conditions. Stillhouse' s failure to reduce the
width of the entries in the 002 section to at least eighteen feet as it cut coal within 150 feet of the
outcrop, as required by its roof control plan, aggravated the chances of a deadly roof fall. These
risks were real, not mere "hyperbole" as Stillhouse contends. (Resp't Reply 5.) Stillhouse
operated one double-headed roof bolter on the 002 section, which worked to secure the roof in
the entries dug out by the continuous miner in that section. A double-headed roof bolter is
operated by two miners. These miners were exposed to the severe roof conditions that had been
further compromised by Stillhouse's violation. Stillhouse's violation exposed two miners to a
high risk of fatal injury.
b.

Application of the Elements of a Flagrant Violation and
Determination of Reckless Disregard

Johnson and Clark's inspection of Mine No. 1 was initiated by a concerned miner's report
to MSHA of bad roof conditions in the 002 section. Hours later, Johnson and Clark discovered
extensive evidence of poor roof conditions during their inspection of the section. See discussion
supra Part IV.D.4.a. All five entries were discovered to be out of compliance with the roof
control plan. The risk of fatal injuries to two miners pervaded throughout the 002 section.
Stillhouse's violation was abundantly obvious. The roof control plan plainly stated that
eighteen-foot wide entries are required when mining within 150 feet of the outcrop, which in this
case was at the box cut prepared for the miners to emerge to the surface from underground. See
discussion supra Part IV.D.3. The fact that not one of the entries in the outcrop area of the 002
section conformed to the roof control plan's eighteen-foot width requirement was clear to the
naked eye. The foreman's mount showing the distance between the underground area of the 002
section and the surface revealed that Stillhouse was within 110 feet of the outcrop, well inside
the 150-foot distance designated by the roof control plan for narrower entries. Actual knowledge
is "implied" when an individual has knowledge of certain information that would lead him or her
to make further inquiries. Here, the requirements of the roof control plan and the location of
Stillhouse's miners relative to the outcrop were abundantly clear to Stillhouse. Though
Stillhouse denies that it had express actual knowledge of its violation, this evidence demonstrates

33 FMSHRC Page 836

that Stillhouse had implied actual knowledge of its violation. Stillhouse knew it committed a
violation of its roof control plan.
The hazards involved with this violation were obvious, as well. Johnson and Clark
observed cracks, hill seams, glue running from the roof bolts, and a four-foot thick roof fall
spanning the entire width of Entry No. 2. These plainly visible conditions underscored the
gravity of the poor roof conditions in the 002 section and confirmed the alarms raised by the
concerned miner's phone call to MSHA the previous night. In cutting these entries too wide,
Stillhouse risked the high likelihood that two of its miners would suffer fatal injuries from a roof
fall. A reasonably prudent mine operator would have installed supplemental roof support to
alleviate the risks involved in cutting its entries too wide. Such supplemental roof support could
have included the posts that Johnson and Clark ordered to be installed to abate this violation.
Taking these simple precautions would not have placed a significant burden on Stillhouse.
The deliberate nature of Stillhouse' s obvious violation was manifest. Prior to the start of
· third-shift, none of the entries in the 002 section had been cut to the surface. By the time
Johnson and Clark ordered Stillhouse to cease its mining activities at the end of third-shift,
Stillhouse had cut Entry Nos. 1 and 2 to the surface and, judging on the continuous miner's
location in Entry No. 3, was well on its way to :finishing the three remaining cutouts in the
section. Moreover, not one of the entries in the 002 section complied with the eighteen-foot
width requirement of its MSHA-approved roof control plan.
As for Stillhouse's assertion that Johnson's contradictory statements undermine MSHA's
negligence findings associated with this violation, Johnson did state in the Secretary's
.
interrogatory respon5es that "Stillhouse completely disregarded its RCP [roof control plan]" (Ex.
R-1, at 8), and he testified at the hearing that Stillhouse had installed roof bolts in the 002 section
that were of the proper length and properly spaced. However, on cross-examination, counsel for
Stillhouse asked Johnson about this specific contradiction. (Trl. 255:16-256:10.) Johnson
asserted that Stillhouse completely disregarded the portion of its roof control plan concerning
development in the outcrop by failing to narrow the width ofits entries. (Id.) Johnson's
explanation of his interrogatory answer is consistent with both the interrogatory answer's and his
testimony's focus on Stillhouse's failure to cut entries of the proper width. The distinction
Stillhouse attempts to draw between Johnson's interrogatory statement and his testimony does
nothing to undermine his statements regarding Stillhouse's negligence.

Stillhouse relies on Virginia Crews Coal in arguing that this violation does not even rise
to the level of an unwarrantable failure. In that case, the Commission explained that "a breach of
a duty to know is not necessarily an unwarrantable failure." 15 FMSHRC at 2107 (citing the
Administrative Law Judge's decision). The Commission reasoned that resting a determination of
unwarrantable failure solely on the breach of the duty to know would make an unwarrantable
failure indistinguishable from ordinary negligence. Id.

33 FMSHRC Page 837

As discussed extensively, this violation does not involve Stillhouse's mere breach of its
duty to know about the violation. fustead, Stillhouse systematically cut five entries in the 002
section that failed to comply with its roof control plan. Its failure to comply with the clear
requirements of its roof control plan was visible to the naked eye. Most importantly, Stillhouse
disregarded numerous, obvious hazards, such as locations where the roof was sagging and glue
was running away from the rods, which indicated that its violation created the high risk of fatal
injuries to miners working in the section.
Based on the foregoing, Stillhouse did not take the steps a reasonably prudent mine
operator would have taken to eliminate its known violation of30 C.F.R. § 75.220{a){l).
Stillhouse's violation involved the high risk of fatal injuries to two miners. See discussion supra
Part IV.D.4.a. In disregarding this known violation and obvious hazards foretelling a deadly roof
fall, Stillhouse deliberately disregarded an unjustifiable, reasonably likely risk of "death or
serious bodily injury." § 820(bX2). As a result, Stillhouse committed a reckless failure to make
reasonable efforts to eliminate a known violation of a mandatory safety standard, estab1ishing the
first two elements of a flagrant violation. See discussion supra Part III.D.l. The first two
elements of a flagrant violation are present in this violation. As Stillhouse deliberately
disregarded an unjustifiable, reasonably likely risk of death or seriously bodily injury, I also
determine that Stillhouse acted with reckless disregard in committing this violation.
As noted above, Stillhouse's reckless failure to eliminate its violation created the highly
likely possibility that two miners would suffer fatal injuries. See discussion supra Part IV.D.4.a.
Stillhouse's reckless failure to eliminate its violationof30 C.F.R. § 75.220{a)(l) reasonably
could have been expected to cause death or serious bodily injury, thus establishing the third and
fourth elements fo a flagrant violation. 30 U.S.C. § 820(b)(2). See discussion supra Part ID.D.2.
I therefore conclude that all of the elements of a flagrant violation are satisfied in this case, and
Order No. 6665038 is AFFIRMED as a flagrant violation.
5.

Disposition of Other Issues
a.

S&S

The Secretary proved a violation of the mandatory safety standard at§ 75.220(a)(l).
Stillhouse's failure to rectify its violation created the high likelihood ofroof falls, a discrete
mining hazard. Though one roof fall did not crush any miners, had Stillhouse's mining
operations continued, such an event was highly likely to have occurred, resulting in fatal injuries
to two miners working as roofbolters in the 002 section. See discussion supra Part IV.D.4.a. As
this violation satisfies all four Mathies criteria, Order No. 6665038 is AFFIRMED as S&S.
b.

Unwarrantable Failure

As for the aggravating factors underlying a determination of unwarrantable failure,
Stillhouse's violation involved the high risk of fatal injuries to two miners. The extent of

33 FMSHRC Page 838

Stillhouse's violation was great, as the operator failed to comply with its roof control plan in
every single one of the five entries in the outcrop area. Stillhouse committed this violation in
spite of the obvious conditions, such as hill seams, that warned of the dangers associated with its
violation. See discussion supra Part N.D.4.a. All of these aggravating factors lead to the
inevitable determination that Stillhouse's conduct rose to the level of an unwarrantable failure to
comply with 30 C.F.R § 75.220(a)(I). Accordingly, Order No. 6665038 is AFFlRMED as an
unwarrantable failure to comply with this safety violation.
6.

Penalty

As with the other violations in this case, the parties have stipulated that the proposed civil
penalty is appropriate for the size of Stillhouse's business, that it will not impact Stillhouse's
ability to stay in business, and that Stillhouse made a good faith effort to achieve rapid
compliance after notification of the violation. See discussion supra Part N.A.5. In contrast to
the other violations in this case, Stillhouse has three prior significant violations of the roof
control standard arising from a roof collapse that killed two miners. (Ex. P-10, at 2; Ex. P-23;
Ex. P-24.) The collapse occurred a little over a year before this violation. (Ex. P-23.) It is true
that the circumstances surrounding the collapse wer~ different than those presented in this
violation, e.g., it did not occur in the 002 section. (Id.) Nevertheless, these miners' deaths
provided to Stillhouse a grave reminder of the importance of complying with its roof control
plan. See San Juan Coal Co., 29FMSHRC125, 131 (Mar. 2007) (recognizing that prior
violations ofthe'accumulation standard at 30 C.F.R. § 75.400 for different conditions occurring
in different areas of the mine as opposed to the violation at issue may nevertheless put the
operator on notice of an accumulation problem in its mine). As I have noted in detail, the gravitY
and negligence ofStillhouse's violation was severe. See discussion supra Part N.DA 13a..~ed on
these considerations, particularly on those concerning the severity cfStillhouse's history of
violations and on this spe~ific violation's gravity and negligence, I conclude that the Secretary's
proposed penalty of $177 ,600 is warranted by Stillhouse' s conduct. I hereby assess a civil
penalty of $177 ,600 against Stillhouse.
E.

Stillhouse's Constitutional Argument Against the Penalties Proposed by the
Secretazy

Stillhouse argues that the Secretary's proposed civil penalty assessments for flagrant
violations under section 11 O(b)(2) ofthe Mine Act violate the Excessive Fines Clause of the
Eighth Amendment, based on the United States Supreme Court's decision in United States v.
Bajkajian, 524 U.S. 321 (1998). (Resp. Prehr'g Report 2; Resp't Br. 19-20.) Stillhou8e argues
that any civil penalty associated with a flagrant violation lacks proportionality and is thus
punitive, and it invites me to find the penalty grossly disproportional and unconstitutional. (Id.)
See Sec '.Y ofLabor v. Kenny Richardson, 3 FMSHRC 8, 21 (Jan. 1981), affd, 689 F.2d 632 (6th
Cir. 1982), cert. denied, 461 U.S. 928 (1983) (Commission may resolve constitutional challenges
raised against enforcement of the Act).

33 FMSHRC Page 839

However; Stillhouse's constitutional arguments are misplaced. The Supreme Court has
traditionally viewed the Excessive Fines Clause in the context of criminal prosecutions and
punishments, such as in personam criminal forfeitures, and this point is reflected in Bajkajian,
which narrowly applied the Court's test for excessive fines in the context of an in personarn
criminal forfeiture. See, e.g., Matthew C. Solomon, Note, The Perils ofMinimalism: United
States v. Bajakajian in the Wake of the Supreme Court's Civil Double Jeopardy Excursion, 87
Geo. L.J. 849, 870-82 (Feb. 1999) (discussingBajkajian in the context of the Supreme Court's
jurisprudence on the Excessive Fines Clause). I do not accept Stillhouse's invitation to extend
Eighth Amendment protections into the administrative civil penalty context. Cf SA. Healy Co.
v. Occupational Safety and Health Review Comm 'n, 138 F.3d 686, 687 (7th Cir. 1998) (holding
administrative fine does not constitute punishment for Eighth Amendment's double jeopardy
purposes). Accordingly, I conclude that the Secretary is not constitutionally barred from seeking
to impose a civil penalty on Stillhouse for a flagrant violation.

V. Conclusion
I conclude that the evidence in this case establishes that Stillhouse committed the four
flagrant violations charged in Citation No. 6665036 and Order Nos. 6665037, 6665038, and
6665039. The citation and orders are hereby AFFIRMED, as written.

VI. Order
Stillhouse is ORDERED to pay a civi.l penalty of $761,000.00 within 40 days of this
decision. · ·

~G~
~
Alan G. Paez

Administrative Law Judge

Distribution:
Thomas A. Grooms, Esq., and Willow E. Fort, Esq., U.S. Department of Labor, Office of the
Solicitor, 618 Church Street, Suite 230, Nashville, TN 37219-2440
John M. Williams, Esq., and Marco M. Rajkovich, Jr., Esq., Rajkovich, Williams, Kilpatrick &
True, PLLC, 3151 Beaumont Center Circle, Suite 375, Lexington, KY 40513
/jts

33 FMSHRC Page 840

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,.:--o

\';

y

»\ - Mine Entrance

'~~

Appendh

~·

'll<E

,,,, / "

Appendix C 1 -Wet Area

Appendix C2 - Relative Location of Wet Area

33 FMSHRC Page 843

Appendix D1 - Intake/Return Split & 003 MMU

~~~~
"-·~\ ......

D
,\

'~~.·.·Fl.····
'\;~~LJ

Appendix D2 - Relative Location of Intake/Return Split & 003 MMU

33 FMSHRC Page 844

Appendix E1 - Maggard Branch Cutouts & 002 MMU

lO
i,

·--~· ~

/

Appendix Ei - Relative Location of Maggard Branch Cutouts & 002 MMU

33 FMSHRC Page 845

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, DC 20001-2021
Telephone No.: 202-577 6809
Telecopier No.: 202 434 9949

March 28, 2011

OAK GROVE RESOURCES, LLC.,
Contestant

CONTEST PROCEEDING
Docket No. SE 2009-261-R
Citation No. 7696616; 01/08/2009

v.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
Respondent

Oak Grove Mine
Mine ID 01-00851

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

CIVIL PENAL TY PROCEEDING
Docket No. SE 2009-487-P
A.C. No. 01-00851-180940-01

OAK GROVE RESOURCES, LLC.,
Respondent

Oak Grove Mine

DECISION
Appearances:
Jennifer D. Booth, Esq., on behalf ofthe Secretary of Labor
R. Henry Moore, Esq., Jackson Kelly, PLLC, on behalf of Oak Grove Resources, LLC

Introduction:
These cases are before the Court on a notice of contest filed by the Respondent, Oak
Grove Resources, LLC ("Oak Grove") and a civil penalty petition filed by the Secretary of Labor
("Secretary"), acting on behalf of the Mine Safety and Health Administration ("MSHA"),
pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, as

33 FMSHRC Page 846

amended. (''the Act") (30 U.S.C. §§ 815, 820). In the Notice of Contest, the Contestant
challenged, among other aspects, the validity of a safeguard, on several grounds. In the civil
penalty proceeding, the Secretary, via a special assessment, seeks a $55,000.00 penalty on the
basis of an alleged violation of 30 C.F.R. § 75 .1403-1 O(b), a safeguard provision. A hearing was
held in Birmingham, Alabama on December 7, 2011.

Background:
Miner Lee Graham was killed at Respondent's Oak Grove Mine on May 22, 2008. There
is no dispute about the circumstances of his death which may be briefly summarized as follows:
On the date of Mr. Graham's death, Oak Grove was in the process of transporting a shearer body
to the longwall face via the main haulage road. The shearer body, a machine that operates on the
longwall face, weighs 24 tons and at the time of the accident it was being transported on a
"shearer carrier," which is a haulage carrier designed for the task of hauling the shearer body.
Mr. Graham died when he was pinned between a locomotive he was operating and the shearer
body.
Oak Grove was attempting to transport the shearer body using two tandem locomotives:
Motors No. 3 and No. 8, to pull the shearer carrier and Motors No. 4 and 9 to push the shearer
carrier. Therefore in terms of their destination to the longwall, Motors No. 3 and 8, since they
were pulling, were leading and Motors No. 4 and 9 were following the procession. Each pair of
locomotives was connected to one another by a coupling. For the two coupled motors pulling the
shearer body, No. 8 was in the lead, and connected to No. 3. The No. 3 itself was connected to
the shearer body by a one inch diameter, flexible, wire rope~ Thus, unlike the relatively rigid
connection between the motors, through a coupling, the connection for the pulling locomotives,
utilizing a wire rope to the shearer carrier was anything but rigid. Miner Graham was operating
the No. 3 motor. In contrast to the wire rope arrangement connecting the pulling motors to the
shearer carrier, the pushing motors were connected to the shearer carrier by a solid drawbar.
To recap, if one were standing alongside the transporting effort at the time, such
individual would have observed, beginning at the .front, pulling end, the No. 8 motor, which was
connected to the No. 3 motor via a coupling and then the No. 3 motor connected to the shearer
carrier by the wire rope. Next would be the shearer carrier itself and on the pushing end, a
connection from it, by means of a solid drawbar, to the No. 4 motor. Finally, the No. 9 motor
was connected to the No. 4 motor via a coupling in the same fashion as the link between the
No. 3 and the No. 8. The significance of the wire rope connection will become apparent
momentarily.
To understand how the fatality occurred, picture the procession moving towards its
destination, as described, and reaching an upgrade. Slack then developed in the wire rope
connection and the consequence was a derailment of the shearer carrier. Examining the situation,
the victim unwittingly placed himself in a dangerous position, standing in the middle of the track,
between his locomotive and the derailed shearer carrier. It was then that the coupled motors,

33 FMSHRC Page 847

Nos. 3 and 8 either slid or rolled downhill with Mr.Graham becoming fatally pinned between
those motors and the shearer carrier.

An MSHA investigation ensued. This investigation was conducted by fuspector David
Allen. Upon the conclusion of his investigation, fuspector Allen issued Citation No. 7696616,
pursuant to Section 3 l 4(b) of the Mine Act for an alleged violation of Safeguard No. 2604892.
fu his testimony at the hearing, Mr. Allen spoke to the hazards arising from pushing cars on
haulage roads. The hazards, he expressed, are plain. When one pushes a car visibility is affected
because the load is in front of the pushing force. This makes it more difficult to see the track and
any traffic that may lie ahead. Beyond that concern, when pushing, as opposed to pulling, one
does not have positive control. Third, pushing also creates a pinch point, as happened here
between the shearer carrier and the No. 3 motor.
The law regarding Safeguards:

The law regarding safeguards is well-established and clear. A few cases, representative of
that law, are here noted.
fu McElroy Coal, 23 FMSHRC 201 (Feb. 2001 ), Judge David F. Barbour, discussed this
issue where the mine challenged the validity of the underlying safeguard.' Judge Barbour noted
that the Commission has recognized that section 314(b) of the Mine Act "manifests a legislative
purpose to guard against all hazards attendant upon haulage and transportation in coal mining,"
citing Jim Walter Resources, Inc., 7 FMSHRC 493, 496 {April 1985), but that, because a
safeguard is issued without notice and comment rulemaking, the interpretation of them is more
restrained. Further, he observed that "the safeguard must identify with specificity the nature of
the hazard involving the transportation of miners or materials at which it is directed," citing
Southern Ohio Coal Co., 7 FMSHRC 509, 512 ("Southern Ohio Coaf'). As the Commission
expressly stated in Southern Ohio Coal, "a safeguard notice 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." Id. at 512. (emphasis added). In that case, the safeguard spoke to fallen rock and
cement blocks and required 24 inches of clearance on both sides of the conveyor belt. Given
those identified hazards, the Commission held that "conditions such as the water described in the
citation" were outside of the hazards identified in the safeguard's notice.

1

The text of that safeguard in that case provided: "Ten miners ... were observed on the
Blakes Rei deg elevator ... also on the
elevator was a ... cart loaded with 6 boxes of water,
a belt conveyor scraper, and a pipe connector. If the elevator would stop abruptly, the cart and/or
supplies could expose these men to injury from being struck. To eliminate this hazard, the
following safeguard notice is hereby issued[:] This is a notice to provide safeguards prohibiting
supplies, parts or tools, except small hand tools or instruments, to be transported with persons on
the elevator at this mine." The reader should note that the hazard was described in the safeguard
notice.
33 FMSHRC Page 848

Judge Barbour also noted that, for all of these requirements, it is the Secretary that bears
the burden of proof in establishing the validity of the safeguard "by showing that the inspector
evaluated the specific conditions at the mine and determined that the safeguard was warranted in
order to address the actual transportation hazard."2

In Cyprus Cumberland Resources Corp., 19 FMSHRC 1781 {Nov. 1997), ("Cyprus") the
Commission spoke to the subject of safeguards in a context similar to this case. There, signal
lights to control traffic were in issue. 3 Although the entire text of the safeguard was not stated in
the decision, the quoted portion of it is still informative. There it noted:"... track haulage
equip[ment]operators to use the block lights installed along supply track haulage at the mine, to
clear such lights (turn off after each use) in order to assure approaching haulage equipment a
clear road exists and also only I piece of haulage equipment shall be operated in the same block
light except [motors] . . . ." That safeguard was later modified, deleting the one piece of
haulage equipment being operated in a block requirement but adding a requirement that vehicles
be separated by at least 300 feet and that the signal light be used properly so that others would
know when other equipment was within a block. The Commission took the opportunity in
Cyprus to review the requirements for a valid safeguard, as set forth in Southern Ohio Coal Co.,
14 FMSHRC 1, (January 1992)("Socco If'). It noted that, in addition to the predicate
requirement, that is, that there be a transportation hazard not covered by a mandatory standard
and that a safeguard is necessary to correct the hazardous condition, the safeguard must state the
corrective measures that are to be taken.
In line with these requirements, the Commission added that such safeguards must be
strictly construed, because they are issued without the usual practice of notice and comment
rulemaking. Socco II, 14 FMSHRC 1, 8.
Oak Grove's challenge to the validity of Safeguard No. 2604892.
Oak Grove has raised a number of challenges to MSHA's enforcement action which will
now be discussed.
Respondent contends that although the safeguard refers to a locomotive pushing two
loaded supply cars down grades, nowhere does it identify the nature of the hazard to which it was
directed. R's Br. at 2. Looking to Commission precedent, Oak Grove asserts that the safeguard

2

Judge Barbour also noted that the Secretary's burden also includes establishing that the
"conditions for which the citation was issued c[o ]me within the safeguard."
3

In Cyprus the transportation hazard was leaving a block light "on" after an equipment
operator had departed that block and the Commission upheld the validity of the safeguard. The
light system provided a means of communication so that miners would be informed of the
presence of another piece of equipment within a block. Disregarding the light procedure could
result in an accident between cars operating in a block.

33 FMSHRC Page 849

was not validly iSsued. It notes that not only do Commission decisions in cases such as Sacco II
make this a plain requirement for safeguards, but also that MSHA's own Program Policy Manual
("PPM") directs that the "safeguard notice should also identify the nature of the hazard to which
it is directed." Emphasizing this point, the PPM continues with an example of a potential subject
for a safeguard, adding that the "safeguard should also include a statement of the hazards that ...
[it] is intended to prevent." R's Br. at 8-9, quoting 2003 PPM at p. 129. In fact, the safeguard
notice in issue in this litigation fails to expressly address any hazard. Thus, the Respondent urges
that because the safeguard in this case lacked the required specificity identifying the nature of the
hazard, it must fail. R's Br. at 7-10. Accordingly, it is Respondent's position that the Citation in
issue in this proceeding should be vacated because the underlying safeguard "fails to identify
with specificity the nature of the hazard at which it is directed.'..i
The government's sole witness was David Allen, who is with the MSHA District Office
in Birmingham, Alabama. Presently he is the supervisor, Mine Safety and Health Specialist for
the ventilation plans group. Tr. 16. Allen was assigned to investigate the accident associated
with this litigation. Tr. 19. Ex 4 is Allen's accident investigation report. Tr. 20. According to
Allen, as noted earlier, miners were in the process of moving the shearer carrier and, as they were
traveling upgrade, slack developed in the wire rope between the No. 3 motor and the shearer
carrier. With that slack, the carrier derailed. Allen agreed that once the shearer carrier derailed,
the miners evaluated the problem. This took anywhere between two to five minutes and during
that time the motors on either side of the shearer carrier did not move. At some point after that
time elapsed Mr. Graham, the victim, stepped in between the shearer body and the No. 3 motor
and it was then that the motor moved, resulting in Mr. Graham becoming fatally pinned between
that motor and the shearer body. Tr. 56-57. Allen agreed that "one of the causal factors" was
someone forgot to set a brake on the motors that moved. Tr. 58. Thus, apart from the
safeguard's failure to identify any hazard, and even ifthe Secretary's claim as to the hazards .
supposedly addressed by the safeguard were accepted, this accident occurred not because of any
claimed failure to comply with that safeguard. In short the accident did not occur from pushing
the shearer.
Allen, who had prior mining experience moving mining equipment, stated that, when in
his past work at mines, he had performed such tasks, the equipment was pulled through the mine.
The pulling was accomplished by using a solid bar, that is a tongue or a drawbar between the
locomotive and the car itself. Yet, he conceded, even when moving by pulling, derailments
would occur. Tr. 28-29.
The safeguard, which was originally issued in March 1986, is set forth in GX 2. Tr. 40.

4

Altematively, even if it is determined that the safeguard is valid, Respondent contends
that the action must also fail because the conditions cited must be within the reasonable scope of
its terms. Respondent raised several other arguments such as that the safeguard does not pertain
to the act of moving heavy equipment. Given the outcome here, these contentions need not be
resolved.
33 FMSHRC Page 850

Allen offered his particular interpretation of the hazard the safeguard is intended to address.
To that end, he described what the safeguard requires, that is, that cars on main haulage roads are
not to be pushed. Tr. 42. Distinct from that requirement, which is undeniably in the safeguard, is
the matter of the hazard. To deal with that, however, Allen moved from reading the text of the
safeguard to "the hazard that [he] identified in association with the safeguard." That answer
required, not reading on Allen's part, but reading into the hazard he assumed was intended by
that safeguard. Tr. 42. Allen then proceeded to identify "several hazards associated with [the
safeguard]." These included visibility hazards, the lack of"good positive control of the loads"
by pushing instead of pulling, and creating a "pinch point." Tr. 42-44. To get right to the point,
the Court notes that not one of these hazards, or any other expressly stated hazard for that matter,
is within the four comers of the safeguard, and as such the safeguard is fatally :flawed.5 Nor is
the hazard so plainly obvious that it need not be stated.
It was brought out that during bis investigation of the accident, Allen also issued two
safeguard notices. Tr. 63. Jn contrast to the safeguard at issue here, Allen's safeguards, one of
which was based on 30 C.F.R. § 75.1403-lO(b), described both the condition and the hazard he
identified. Tr. 64. The other safeguard he issued did the same thing; it identified the hazard. Tr.
65. Further, Allen admitted that the safeguard in issue in this case does not describe the hazard.
Tr. 65. Accordingly, when Allen was asked if the safeguard made any reference to ''pinch points
or visibility or the ability to control the load," he responded: "No. I mean, it's not in there." Tr.
66. Allen admitted that when he writes a safeguard he always puts the hazard in it. Tr. 67.

For its part, the Secretary notes that the Act specifically provides for safeguards, per
Section 314(b) of the Mine Act and that the provision allows the Secretary to issue "other
safeguards adequate, in the judgment of an authorized representative ... to minimize hazards
with respect to transportation of men and materials." Of course, no one disputes those
observations. The Secretary acknowledges that the inspector must determine the presence of an
actual transportation hazard, which hazard is not already addressed by another mandatory
standard and that the safeguard is necessary to correct that hazard.
To the Respondent's contention that the safeguard fails to specifically identify the hazard,
the Secretary contends that the safeguard does sufficiently notify the mine of the hazardous
conditions. Sec. Br. at 5. However, the Secretary's admission that the hazard must be identified
is not unqualified, as she argues that the safeguard does not require enumerating the specific
hazards in it, such as the risk of one being crushed or struck. In its Reply Brief, the Secretary

5

While the failure to state a hazard is fatal, even beyond that the safeguard would fail.
Allen stated that if the operator had been pulling the shearer no pinch point would have existed
between the No. 3 motor and the shearer carrier. Of course, the shearer was being pulled and
pushed at the same time. The pulling aspect was by means of the wire rope but even as to that
Allen maintained a rigid connection, not a wire rope, would have to be used. Just as one will not
find any listed "hazard" in the safeguard, one will search in vain to find any requirement for a
rigid connection.
33 FMSHRC Page 851

reiterates that point, asserting that the Commission has never invalidated a safeguard for failure
to identify the specific hazards involved. Sec. Reply at 1. The test, it maintains, is that the
safeguard adequately apprise the mine operator of the hazardous practice proscribed by it. Here,
the Secretary believes, the safeguard could not be plainer: cars on main haulage roads are not to
be pushed, period. The Secretary adds that is exactly what occurred with this fatality. The
shearer carrier was being pushed, contrary to the safeguard's prohibition of that practice. Thus,
from the Secretary's perspective, upholding the safeguard is a simple matter. The safeguard
proscribes pushing cars and the Respondent's Assistant General Mine Foreman/DayShift
Foreman, Chad Johnson, admitted that the shearer carrier was being pushed as the shearer was
being transported to the face. Sec. Br. at 7, citing Tr. 99. Therefore, it contends the Citation, No.
7696616, was established. As explained earlier, the Court has noted that Commission law
requires more for a safeguard to be sustained.

CONCLUSION
In applying the law regarding safeguards to a specific enforcement action, here a section
104(a) citation, the determination of the applicability and validity of the safeguard must begin,
and be bounded by, the four comers of the notice to provide safeguard. In this instance, the
safeguard in question, which was issued on March 3, 1986 provided in full:
The No. 902 battery powered locomotive was being used to push
two loaded supply cars consisting of a car of timber and a car of
roof bolts down the graded haulage supply mine track entry of the
main south area of the mine, near the intersection of the No. 7 and
No. 14 section switch and the No. 10 and the No. 5 section switch.
Such area is approximately 2100 feet from the main bottom area of
the mine and approximately 3600 feet from the No. 7 section and
the No 10 sections. Respectively, this notice to provide safeguard
requires that cars on main haulage roads not be pushed except
where necessary to push cars from side tracks located near the
the working section to the producing entries and rooms.
Manifestly, the notice to provide safeguard fails to satisfy the requirements established by
the Commission because nowhere does it identify the hazard it purports to address. True, the
requirement is stated clearly that, with some exceptions, cars may not be pushed, but the hazard
from that activity is not stated. As such, applying the clear rules established by the Commission
for evaluating the validity of a safeguard, the safeguard issued here must fail. 6

6This safeguard has some history associated with it. After it was issued, a waiver of its
requirements followed. Then, that waiver was voided and the safeguard reinstated. Those issues
were addressed in the Court's earlier Order on the Respondent's Motion for Summary Judgment.
2010 WL 3616463 (August 2010). The ''waiver" of the safeguard provides some insight into the
33 FMSHRC Page 852

The history of the safeguard in this case fails to comportwith these requirements. 7

hazard the safeguard attempted to address because the contingencies for the waiver speak of
ensuring that the track is clear of all traffic, that a sign or light be placed to prevent equipment
from entering the haulage route during the move, and that sufficient motors be employed to
control the load. However, there are two problems with referencing the waiver to understand the
hazard addressed by the safeguard. First, the safeguard must identify the hazard in the first
instance. Subsequent documents, such as a waiver, cannot act as a substitute for what the
safeguard must provide in the first instance. Only a new safeguard notice or an amendment to
the original safeguard notice can fill the void created by the absence of a hazard being identified.
Second, even if it were assumed for the sake of argument that one could look to a subsequent
document that is not a safeguard itself or an amendment to one, in this case the waiver only
implicitly identifies the hazard being addressed.
7

The Secretary has also noted that two other administrative law judges have recently
addressed this issue. For example, Judge Miller in American Coal Company held that it is not
required for a safeguard to specify each specific scenario that may develop. fustead the
requirement is for the safeguard to identify the hazard. Order Denying Respondent's Motion for
Summary Decision, LAKE 2007-139 etc. (September 20, 2010) Administrative Law Judge
Manning reached the same conclusion in a separate case involving American Coal Company,
LAKE 2007-171 etc. (December 17, 2010). Some comment about the impact of these two
administrative law judge decisions is in order. The first, and most obvious observation, is that
decisions issued by fellow administrative law judges have no precedential effect The second ·
observation, the corollary of the first, is that the Court must pay attention to the Commission's
decisions. That said, a closer examination of the administrative law judges's decisions cited by
the Secretary \s still useful. In Judge Miller's decision in American Coal Company, she stated
that a safeguard "hazard" refers to "conditions/objects in the mine, as opposed to potential
risks/outcomes associated with those conditions or objects." Order Denying Respondent's
Motion for Summary Decision, LAKE 2007-139 etc. (September 20, 2010). For Judge Miller
the safeguard must identify with '1Iecessary specificity ( 1) a condition/object that could affect the
safe transportation of men and materials and, (2) the conduct required to remedy such." This
Court interprets the phrase "a condition/object" that could affect the safe transportation as
synonymous with the hazard. But beyond the semantic choices employed, a closer examination
of the safeguards themselves reveals that they are quite different from the safeguard issued in this
case. In one, a miner was being hoisted in a cage with the gate in open position. The safeguard
required that the gate be closed. In another, a mine floor had loose and dislodged flooring and
the safeguard required such problems to be corrected either by re-securing or removing the
problems, while another was issued for insufficient travelway width due to water and slurry, a
problem to be corrected by removal of the water and slurry. In the Court's view, the hazards
were identified in many instances. A safeguard addressing a miner traveling in a car with the
gate open needs no further statement, as it is plain that the hazard, an open door on a moving
elevator, creates a hazard. Similarly, in Judge Manning's decision, American Coal Company,
33 FMSHRC Page 853

ORDER8
For the foregoing reasons, Oak Grove's contest to Citation No. 7696616 is sustained and
accordingly that Citation is hereby VACATED. Further, the Petition_ for the Assessment of Civil
Penalty in Docket No. SE 2009-487-P is hereby DISMISSED.

William B. Moran
Administrative Law Judge

Distribution:
Jennifer Booth, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite
230, Nashville, TN 37219-2456

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Avenue, Suite
1340, Pittsburgh, PA 15222

LAKE 2007-171 e_tc. (December 17, 2010), in many instances the hazards were inherently or
expressly described within the safeguards.
8

The parties raised a number of other issues but, because of the Court's ruling that the
safeguard was irreparably flawed by failing to identify the hazard for which certain activity was
to be proscribed, these matters became ancillary. These included Oak Grove's claim that after
the MSHA waiver was voided, the agency allowed Oak Grove to develop its own procedure for
pushing heavy equipment; that the safeguard here only applied to mine supply cars, not moving
heavy equipment; that it was safer to push the shearer carrier; that at least one MSHA inspector
had observed the mine move heavy equipment and made no objection to the process and that a
former MSHA District Manager testified that he ordered all deficient safeguard notices to be
vacated and if a hazard was again determined to exist, to re-issue the safeguard with the hazard
clearly stated in it. For various reasons, none of these claims were considered impressive by the
Court but it is unnecessary to elaborate upon them, given the determination that the safeguard
itself failed to identify the hazard involved.
33 FMSHRC Page 854

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

March 29, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

PICENOS BROTHERS,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. SE 2009-880-M
A.C. No. 01-03255-193266-01
Docket No. SE 2009-881-M
A.C. No. 01-03255-193266-02
King Quarry

DECISION
Appearances: Sophia Haynes, Esq., Office of the Solicitor, U.S. Department of Labor,
Atlanta, Georgia, for the Petitioner;
Alberto Picenos, pro se, Oneonta, Alabama, for the Respondent.
Before:

Judge Feldman

These civil penalty proceedings are before me based on three alleged violations of the
Secretary's mandatory safety standards in Part 5.6 of the Federal Mine Safety and Health Act
of 1977, as amended (''Mine Acf'), 30 U. S.C. Part 56, governing surface metal and nonmetal
mines. These proceedings also concern two alleged violations of the Secretary's new miner
and refresher training regulations in Part 46 of the Mine Act. These alleged violations
occurred at King Quarry, operated by Picenos Brothers, a sole proprietorship. At King Quarry,
Picenos Brothers employs six miners who use a dozer, a bobcat, sledge hammers and picks to
extract dimensional- stone material. The Secretary proposed a total civil penalty of $23; 707. 00
for the five alleged violations at issue.
During a May 10, 2010, conference call with the parties, Picenos Brothers stipulated to
the fact of the violations, but contested the proposed penalties. I expressed concern that the
proposed $23,707.00 civil penalty did not appear to be proportionate to the size of the mine
operator as required by the statutory penalty criterion in 30 U.S.C. § 820(i). In response to my
concern, the Secretary offered to reduce the total proposed civil penalty to $20,000.00, which
did not adequately address the issue of proportionality.
During a May 27, 2010, conference call, Picenos Brothers was asked to provide
documentation and information regarding the size of the company and the circumstances
behind the cited violations. Shortly thereafter, Picenos Brothers provided documentation and
infonnation reflecting that it is a relatively small mine operator.

33 FMSHRC Page 855

On November 9, 2010, the Secretary was given the opportunity to provide the
testimony of the issuing Mine Safety and Health Administration ("MSHA") inspector to
support the proposed civil penalties. Picenos Brothers waived its right to attend the hearing
since it had stipulated to the fact of the violations and only contested the proposed penalty
amount. Given the Commission's unprecedented workload, the hearing was held in
Washington, D.C. At the hearing, I was particularly concerned about MSHA's enforcement
of Part 46 training obligations of a small operator, such as Picenos Brothers.
The issuance of the subject 104(g)(l) withdrawal orders blurs the distinction between
the failure to provide training and the failure to certify that such training had been given.
On June 30, 2009, the inspector issued 104(g)(l) withdrawal Order Nos. 6511150 and
6511151 citing violations of the refresher training and new miner training provisions in
Part 46. (Gov. Exs. 8, 9). The citations were issued after the inspector determined that
Picenos Brothers had not completed MSHA certification Form 5000-23 for refresher and
new miner training as required by 30 C.F.R. § 46.9. Specifically, Picenos Brothers had not
certified that: (1) refresher training had been given to six miners; and, (2) new miner training
had been given to one miner.
At the hearing, the issuing inspector conceded that on-the-job training is a significant,
if not the most important element, of new miner training. (Tr. 250-51). The Secretary
attributed the cited violation to a high degree of negligence and proposed a civil penalty of
$7, 176.00 1 for 104(g)(l) Order No. 6511151 despite the fact thatthe new miner had been
working at the mine site for several months and apparently had received on-the-job training.
The training concerned the new miners' job duties that principally consisted of operation of
a bobcat and manually stacking pallets. (Tr. 247-49). Though the inspector observed the
new miner operating a bobcat, the inspector did not determine the nature and extent of the
bobcat training that had previously been provided.
The 104(g) orders required the immediate withdrawal of miners because, as noted in
the orders, the miners were alleged to be a hazard to themselves and others. (Gov. Exs. 8, 9).
However, the inspector did not determine what, if any, refresher and new miner training had
been given to abate the 104(g) orders and to warrant allowing the subject miners to return to
work. The withdrawal orders, and the abatement thereof, were based solely on Picenos Brothers'
completion of Form 5000-23 for each of the subject miners. (Tr. 213-14, 254-55).

1

Order No. 6511151 attributed the cited violation to a high degree of negligence, but it
was not designated as unwarrantable because it alleged a violation of the statutory provision in
section 104(g) of the Mine Act. 30 U.S.C. § 814(g). Only alleged violations of mandatory safety
standards can be attributed to an unwarrantable failure. 30 U.S.C. § 814(d)(l). However, the
proposed $7,176.00 civil penalty for Order No. 6511151 was the same as the proposed civil
penalty for other alleged violations of mandatory standards in these proceedings that the
Secretary alleges are unwarrantable.
33 FMSHRC Page 856

Obviously, small operators do not have the formal training staff or facilities available to
a large mine operator. Nevertheless, new miner and refresher training constitute a significant
means of preventing miners' exposure to hazardous eonditions and practices. However,
MSHA's enforcement in this matter, requiring refresher and new miner certifications, without
determining what, if any, training had been provided, elevates form over substance and
trivializes, rather than achieves, the purpose of the training regulations. The failure to ascertain
the degree of training provided before and after the issuance of 104(g) orders relegates such
orders to certification reporting violations rather than serious training violations. I urge the
Secretary to revisit her niethod of enforcement of the Part 46 training regulations, particularly
with respect to their application to very small mine operators.
To detennine the appropriateness of the size of her proposed penalty, following the
hearing, the Secretary deposed Alberto Picenos to obtain further information about the size
and operation of his business. The Secretary now has filed a motion to approve settlement
wherein the parties have agreed to a reduction in the civil penalty from $23, 707 .00 to
$11,910.00. The parties' settlement agreement includes an agreed upon payment schedule,
beginning within approximately 60 days of this order, to be paid in a total of31 monthly
installments.

I have considered the representations and documentation submitted in these matters and I
conclude that the proffered settlement is appropriate under the criteria set forth in Section 11 O(i) ·
of the Act. WHEREFORE, the motion to approve settlement IS GRANTED, and pursuant
to the parties' agreement, Picenos Brothers IS ORDERED to pay $1,500.00 on or before
June I, 2011, and to pay the remaining balance in 30 monthly installments of$347.00 on the
first of each month thereafter, in satisfaction of the five citations atissue.2 In the event that
timely payment is not received, the entire balance will become due immediately. Upon receipt
of timely payments, the captioned civil penalty matters ARE DISMISSED.

erold Feldman
Administrative Law Judge

2

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. Please include the
Docket Nos. and A.C. Nos. noted in the above caption on the checks.
33 FMSHRC Page 857

Distribution: (Certified Mail)
Sophia Haynes, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street, S.W.,
Room 7Tl 0, Atlanta, GA 30303
Alberto Picenos, Owner, Picenos Brothers, 93 Parks Circle, Oneonta, AL 35121
Amy Allman, 5205 County Highway 24, Springville, AL 35146
/jel

33 FMSHRC Page 858

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, NW, SUITE 9500
WASHINGTON, DC 20001

March 31, 2011
BIG RIVER MINING, LLC
Contestant

CONTESTPROCEEDlNGS
Docket No. WEYA 2008-1627-R
Order No. 6606120; 07/09/2008

v.

Docket No. WEVA 2009-1408-R
Citation No. 8014667; 04/13/2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Docket No. WEYA 2009-1409-R
Citation No. 8014669; 04115/2009
Docket No. WEYA 2009-1410-R
Citation No. 8014670; 04/16/2009
Docket No. WEVA2009-1417-R
Citation No. 8016683; 04/29/2009
Docket No. WEYA 2009-1418-R
Citation No. 8016684; 04/29/2009
Docket No. WEYA2009-1867-R
Citation No. 8019935; 07/22/2009
Docket No. WEYA 2009-1868-R
Citation No. 6606537; 07/22/2009
Docket No. WEYA 2009-1869-R
Citation No. 8019938; 07/22/2009
Docket No. WEYA 2009-1870-R
Citation No. 8019939; 07/22/2009
Broad Run
Mine ID 46-09136

33 FMSHRC Page 859

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

CNIL PENALTY PROCEEDINGS
Docket No. WEVA 2009-1
A.C. No. 46-09136-156167
Docket No. WEVA 2009-358
A.C. No. 46-09136-159271
Docket No. WEVA 2009-376
A.C. No. 46-09136-167886-01

v ..

Docket No. WEVA 2009-377
A.C. No. 46-09136-167886-02

BIG RIVER MINING, LLC.,
Respondent

Docket No. WEVA 2009-652
A.C. No. 46-09136-170809-01
Docket No. WEVA 2009-892
A.C. No. 46-09136-176268
Docket No. WEVA 2009-893
A.C. No. 46-09136-176268
Docket No. WEVA 2009-1105
A.C. No. 46-09136-178779-02
Docket No. WEVA 2009-1301
A.C. No. 46-09136-181460
Docket No. WEVA 2009-1302
A.C. No. 46-09136-181460
Docket No. WEVA 2009-1604
A.C. No. 46-09136-187355
Docket No. WEVA 2009-1669
A.C. No. 46-09136-184534
Docket No. WEVA 2009-1742
A.C. No. 46-09136-190394
Docket No. WEVA 2009-1989
A.C. No. 46-09136-196188

33 FMSHRC Page 860

Docket No. WEVA 2009-1990
A.C. No. 46-09136-196188
Docket No. WEVA 2010-191
A.C. No. 46-09136-199569-01
Docket No. WEVA2010-192
A.C. No. 46-09136-199569-02
Docket No. WEVA 2010-355
A.C. No. 46-09136-202456
Docket No. WEVA2010-473
A.C. No. 46-09136-205265
Docket No. WEVA 2010-558
A.C. No. 46-09136-207865-01
Docket No. WEVA 2010-559
A.C. No. 46-09136-207865
Docket No. WEVA 20 l 0-677
A.C. No. 46-09136-210733
Mine: Broad Run

DECISION APPROVING SETTLEMENT
Before: Judge Feldman
These captioned proceedings are before me based upon a petition for assessment of
civil penalty filed pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977
(the Act). The Secretary has filed a motion to approve a comprehensive settlement agreement
and to dismiss the 32 above captioned dockets. A reduction in total civil penalty from $1,341,410 .00
to $979,230.00 is proposed.
The specific settlement terms are as noted in the comprehensive settlement agreement
appended to the electronic version of this decision approving settlement, and posted online at the
Commission's website: http://www.fmshrc.gov. The above captioned contest dockets have been
resolved by the terms of the comprehensive settlement agreement. The proposed and agreed upon
civil penalties for each docket are as follows:

33 FMSHRC Page 861

Docket No.

Originally Assessed Penalty

Proposed Settlement

WEYA2009-1

$57,333.00

$45,263.00

WEY A 2009-358

$119,411.00

$85,831.00

WEYA 2009-376

$40,250.00

$34,723.00

WEYA 2009-377

$1,156.00

$1,156.00

WEYA 2009-652

$16,961.00

$16,961.00

WEY A 2009-892

$4,000.00

$4,000.00

WEYA 2009-893

$18,682.00

$18,682.00

WEYA 2009-1105

$38,759.00

$38,759.00

WEYA 2009-J 301

$27,333.00

$27,333.00

WEYA 2009-1302

$65,699.00

$65,699.00

WEYA 2009-1604

. $10,402.00

$10,402.00

WEYA 2009-1669

$12,718.00

$12,718.00

WEYA 2009-1742

$2,824.00

$2,824.00

WEVA 2009-1989

$50,694.00

$25,478.00

WEYA 2009-1990

$92,570.00

$74,115.00

WEYA 2010-191

$101,522.00

$78,538.00

WEY A 2010-192

$140,651.00

$95,820.00

WEYA 2010-355

$17,926.00

$17,926.00

WEYA 2010-473

$94,291.00

$67,978.00

WEYA 2010-558

$263,643.00

$135,675.00

WEYA 2010-559

$146,573.00

$101,337.00

WEYA 2010-677

$18,012.00

$18,012.00

TOTAL

$1,341,410.00

$979,230.00

33 FMSHRC Page 862

I have considered the representations and documentation submitted in these matters
and I conclude that the proffered settlement is appropriate under the criteria set forth in
Section l IO(i) of the Act, 30 U.S.C. § 820(i). WHEREFORE, the motion for approval
of settlement IS GRANTED, and pursuant to the parties' agreement, Big River Mining, LLC
IS ORDERED to pay the $979,230.00 civil penalty within 30 days of this order in satisfaction
of the 3-2 dockets at issue. 1 Upon receipt of timely payment, the captioned contest and civil penalty
proceedings ARE DISMISSED.

Jerold Feldman
Administrative Law Judge

Distribution:
David M. Jaklevic, Esq., Office of the Solicitor, U.S. Department of Labor,
170 S. Independence Mall West, The Curtis Center, Suite 630 East, Philadelphia, PA 19106-3306
Curtis Capehart, Esq., Dinsmore & Shohl, LLP, P.O. Box 11887, 900 Lee Street, #600,
Charleston, WV 25399
/jel

1

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. Please include the
Docket Nos. and A.C. Nos. noted in the above caption on the check(s).
33 FMSHRC Page 863

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, DC 20001-2021
Telephone No.: 202-434-9933
Telecopier No.: 202-434-9949

April 6, 2011

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 2009-116

A.C. No.: 15-17165-164681

v.
STILLHOUSE MINING
Respondent

Mine: No.# 1

DECISION
Appearances: Matt Shepherd, Esquire, for the Secretary of Labor, United States Department of
Labor
Richard D. Cohelia, Black Mountain Resources, Benham, Kentucky

Before: Judge Moran
Introduction
On January 16, 2008 section foreman Bobby Sexton took over the operation of a
continuous miner so that an employee who was under his supervision could take his lunch break.
In the process of operating the continuous miner, which process is carried out using a remote
control box, Sexton placed himselfin a ''red zone," which is not allowed under the mine's roof
control plan. As the continuous miner was being moved to the heading, it caught an uneven
portion of the mine floor. This caused the continuous miner to pivot, with the result that Sexton
became wedged between its tail boom and the rib. His injuries were not minuscule; he was
knocked unconscious, had broken ribs, and missed several days of work from the incident.
There is agreement that the there was a violation, specifically that the conduct constituted
a violation of the roof control plan. What remains in dispute is limited to whether the accident
was the result of an unwarrantable failure on the part of the Respondent and whether the penalty
sought by the Secretary, $60,000.00, is excessive. Tr. 14.

33 FMSHRC Page 864

Given that the primary issue is whether there was an unwarrantable failure, it makes sense
to begin with a review of the meaning of that term.
Unwarrantable failure

The oft-repeated starting point for describing "unwarrantable failure" is found at Emery
Mining Corp., 9 FMSHRC 1997, (December 1987) wherein the Commission explained that the
term refers to aggravated conduct constituting more than ordinary negligence. It noted that it is
"characterized by such conduct as 'reckless disregard,' 'intentional misconduct,' 'indifference' or
a 'serious lack of reasonable care."' Virginia Crews Coal, 1 15 FMSHRC 2103 (Oct. 1993),
quoting Emery at 2003-04. In Gatliff Coal Company,2 14 FMSHRC 1982(December1993), the
Commission further discussed the distinction between negligence and unwarrantable failure.
It noted that the subject is not simply a matter of semantics as an unwarrantable failure may
trigger ''the increasingly severe enforcement sanctions of section 104(d) [whereas] [n]egligence .
. . is one of the criteria that the Secretary and the Commission must consider in proposing and
assessing ... a civil penalty." It went on to note that "'[h]ighly negligent' conduct involves more
than ordinary negligence and would appear, on its face, to suggest an unwarrantable failure.
Thus, if an operator has acted in a highly negligent manner with respect to a violation, that
suggests an aggravated lack of care that is more than ordinary negligence."
The Commission's decision in Midwest Material Company, 1997 WL 24292 (January
1997), looks at the other side of the coin; an instance wherein the administrative law judge's
determination of no unwarrantable failure was reversed. There, the Commission found that the
foreman was more than negligent in the dismantling of a crane boom, determining that .his
conduct was "intentional and deliberate" and therefore "aggravated conduct." The Commission
noted that the foreman's negligent conduct resulted in a highly dangerous situation ~d it
observed that it has considered a high degree of danger posed by a violation as supporting.an .
unwarrantable. failure.
It added that it is important to "recognize that the violation took place in the presence of a

1

Although cited, Virginia Crews Coal, is very distinguishable .from the case at hand.
In that case the Commission held that the Secretary had blurred the distinction between
negligence and unwarrantable failure. The Secretary had argued that the operator knew of the
violation through the preshi:ft examination report but the Commission noted that Virginia Crews
had only "a brief period of noti~e of the existence of a violation as a result of the preshift
examiner's report." In contrast, here, as explained in more detail in the body of this decision, it
was the mine's section foreman who committed the violation, and did so knowing that it was
contrary to the roof control plan.
2

Gatliff Coal also involved a foreman's actions and while the Commission noted that the
foreman drove off the mine property with the two-way radio, the record showed that conduct was
no more than inadvertence. In contrast, as explained in this decision, foreman Sexton's actions
were not a consequence of"inadvertance."

33 FMSHRC Page 865

foreman.,3 who, tinder Commission precedent, is held to [a] high standard of care." Id. at *4.
The Commission noted that a section foreman is "held to a 'demanding standard of care in safety
matters,'" and that there is a "heightened standard of care required of the section foreman and
mine superintendent." Id., citing Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011
(December 1987), Wilmont Mining Co. 9 FMSHRC 684,688 {April 1987)("Wilmonf') and S &
H Mining, Inc., 17 FMSHRC 1918, 1923 (November 1995).
In the Court's view, Capitol Cement Corp., 21 FMSHRC 883 (August 1999) is
particularly instructive. There, a shift supervisor's conduct in failing to deenergize the rail of a
crane and not wearing a safety belt were deemed to constitute aggravated conduct.
The Commission observed that both violations were obvious and dangerous. Further, the
supervisor knew the consequence of his failure to deenergize and that not wearing a safety belt
was dangerous. The Commission noted that "a high standard of care was required of [the].shift
supervisor." It then added that "Managers and supervisors in· high positions must set an example
for all supervisory and non-supervisory miners working under their direction. Such responsibility
not only affirms management's commitment to safety but also, because of the authority of the
manager, discourages other personnel from exercising less than reasonable care." 21 FMSHRC
893, citing Wilmot Mining Co., 9 FMSHRC 684, 688 (Apr. 1987). Finally, the Commission
observed in Capitol Cement that the supervisor "had been entrusted with augmented safety
responsibility and was obligated to act as a role model for [his] subordinate, who was watching
him." Id.
Although already made clear by its decision, the Commission expressly stated that it "is
well established that a supervisor's violative conduct, which occurs within the scope of his
employment, may be imputed to the operator for unwarrantable failure purposes." Id., citing
· R&P, B FMSHRC at 194-97. Further, no Nacco defense4 is available for violations that are the
result of unwarrantable failure pursuant to section 104{d) of the Mine Act. Id. at 893.
Findings ofJact5

3

Midwest Material Company's principle applies a fortiori here, as the foreman was not
merely in the presence of the violation, he was committing it. Significantly, the Commission
expressed in that case that the "lapse of judgment or presence of mind on the part of the mine
foreman with respect to the proper procedures for dismantling the crane boom, ... qualifies as
the type of 'indifference' or 'serious lack of reasonable care' that constitutes unwarrantable
failure ...." Id. at *5.
4

The "Nacco" defense arose where the Commission declined to impute a supervisor's
negligence to the operator for the purpose of assessing civil penalties because it had taken
reasonable steps to avoid an accident and the supervisor's conduct did not expose other miners to
risk of injury. 3 FMSHRC at 849-850.
5

The parties entered into the following stipulations: Stillhouse Mining LLC was the
operator of Mine No. 1; that mine is a mine as that term is defined by Section 3{h) of the Mine
33 FMSHRC Page 866

As noted in this decision's introduction, Respondent's representative conceded: ..We do
not dispute that Mr. Sexton, who was both the foreman and the operator at the time, was standing
in a precarious position ... what we dispute is the unwarranted failure and aggravated conduct
[assertion by the government]. Tr. 12 Therefore, this decision addresses unwarrantability and
the appropriate civil penalty.
Inspector Kevin Doan, an employee with MSHA since 1999, and presently out of their
Harlan, Kentucky field office, is a roof control specialist. Tr. 15. He has also been trained as an
accident investigator. Doan had been called to the mine on January 16, 2008 to investigate an
accident there, which occurred about 11 p.m. Tr. 24. Doan drove to the hospital first to check on
the injured miner, and after that he proceeded to the mine, arriving between 12 p.m. and 1 a.m.
The accident occurred on a working section where some 8 to 10 miners were working. As part of
his investigation, Doan spoke with those miners who had knowledge about the accident. Tr. 26.
Based on his investigation through interviews and witness statements, Doan stated that
there had been a malfunction with the continuous miner and its tail was turned outby for repairs.
The machine was repaired but, as the continuous miner's operator was on a break,6 the section
foreman, Bobby Dean Sexton, took control of the continuous miner so that coal mining could be
resumed. The machine is operated by a remote control box. As the section foreman began
tramming the continuous miner back to the face, the machine contacted a ledge in the mine floor,
causing it to pivot. This machine pivoting resulted in the foreman becoming pinned against the
rib. Seconds later, the shuttle car operator came upon the scene, took over the remote control and
backed the continuous miner away from the trapped foreman. Tr. 27-28. Doan augmented his
testimony with a freehand drawing depicting the scene and he marked on the drawing where he
believed the section foreman should have been standing. Tr. 29, 42 and Ex. IA.
The section foreman, Mr. Sexton, was inby the tail boom of the continuous miner when
he began 'tramming,' that is, moving, the continuous miner. Tr. 34. Doan confirmed that the
section foreman, being located inby the tail boom while he was tramming the miner, was in
violation of the roof control plan. Tr. 35, 39. This is not in dispute.
As Doan noted, a section foreman is responsible for the running the mechanized mining

Act; the mine was engaged in commerce within the meaning of the Mine Act; more than 600,000
tons of coal were produced at the mine in 2008 and Stillhouse Mining is a large operator; a copy
of the citation in issue in this proceeding was served on the Respondent by an authorized agent of
the Secretary and Respondent timely contested the citation; Respondent is subject to the
jurisdiction of the Mine Review Commission and the presiding judge in this proceeding; the
judge has the authority in this matter and to issue a decision; and the proposed penalty will not
affect Respondent's ability to remain in business. Tr. 9-10.

6Tr. 82.
33 FMSHRC Page 867

unit. That includes "the management of that unit, as far as production and safety, and basically
all aspects of that he's in charge of everything there." Tr. 39. Thus, Sexton was the supervisor
of the eight to ten miners that work in that section. 7 Tr. 39, 87. Also, as section foreman, he is to
have knowledge of the roof control plan and all other applicable plans. Tr. 40. Doan stated that,
under the roof control plan, one is to be out of the way of "pinch points." There are numerous
places one could be to be out of the way of such pinch points and the remote control box has an
effectiveness range within which one can still control the continuous miner. Accordingly one
does not have to be extremely close to the continuous miner in order to use the remote control
device. Tr. 42.
Exhibits 2 and 5 complement Ex lA in terms of understanding the place where the
section foreman was pinned by the tail boom against the rib and Doan circled on Ex 5 the
approximate location where the tail boom pinned Sexton against the rib. Exhibit 8 shows the
ledge, or uneven floor, that caused the machine to pivot and as a consequence pin Sexton. Tr.
49.
Doan believed that Sexton would have had the opportunity to have seen the broken mine
floor because he would have had to make a gas check of the area before he trammed the
continuous miner. This is a requirement of the law. Tr. 50-51. Of course, while Sexton was
well aware of the 'ledge,' or uneven floor problems, the violation existed apart from whether he
had such knowledge.

As a consequence of his investigation, Doan issued a citation on January 24, 2008 for a
violation of the roof control plan. Tr. 52-53. At that time the mine's roof control plan provided
that when one is operating a continuous mining machine one must be in a safe location, and away
from pinch points created by that machine and/or by haulage equipment. Tr. 53-54. Ex 11, item
lC, at page 7.
Doan also agreed that it was "common knowledge" that one operating a continuous miner
is to position himself outby the end of that machine. This is well understood because there have
been numerous accidents from people failing to position themselves safely. In providing this
testimony, Doan was specifically including situations where a miner has been pinned by a
continuous miner. Tr. 55. Thus, as a section foreman, Doan expressed that Sexton should have
been aware of that, as well as all provisions of the roof control plan. Tr. 56. Sexton's error was
placing himself in the tum radius. Tr. 58. Doan agreed that Sexton was in the "sheared" area% of
the crosscut at the time of the accident.

7

That number includes the section foreman. Tr. 43.

8

Thus, instead of a right angle for the entry, the comer is trimmed so that it is more like a
45 degree angle. Another way to visualize this is to imagine a trimmed comer of a crosscut so
that the miner could enter the crosscut. Tr. 74. Doan marked the shear on Exhibit IA. Such
sheared areas are created so that the continuous miner can make the turn into the mine face.
33 FMSHRC Page 868

Doan expressed that a "d" citation requires more than ordinary negligence, and that it may
be associated with management's knowledge. Tr. 65. In his view Sexton's conduct was
unwarrantable because he "violated the provisions of the Plan, [and] that as the section foreman
and the leader of that crew he should have been familiar with that Plan. And so being the section
foreman he should have known of the provisions of that Plan and he shouldn't have positioned
himself in an area that would violate that Plan." Tr. 68. As he further explained, it was not
simply one placing oneself where Sexton did that made it an unwarrantable failure. Rather it was
"because he was the foreman and should have intimate knowledge of those plans." Tr. 69.
Here, Doan considered Sexton's placing himself in the red zone that was deliberate. Tr. 70. He
added that his determination did not rely solely upon Sexton placing himself in the shear area,
nor would he consider the unwarrantable failure aspect to be eliminated if the tail of the
continuous miner had been straight and no pinch point were created. Instead, the key
determination from Doan's perspective was that Sexton had placed himself in the red zone. Tr.
70-71. Thus, Sexton placing himself in the sheared area did not insulate him from violating the
Plan because he was still in the red zone. Tr. 76. As Doan summed up his unwarrantable
determination, "[i]f a foreman knowingly violates a provision of any Plan ... it would be
unwarrantable." Tr. 72. In contrast, he expressed that the same analysis would not necessarily
apply if the person who violated the Plan was not a foreman, because such person may not be
familiar with the provisions ofthe Plan. Tr. 73.
Doan also considered it an aggravating factor if employees observe a foreman, as the
leader of the crew, deliberately violating the Plan. Tr. 76. This is because the foreman is.to set an
example and see to it that the Plan is complied with and to make sure that those miners working
under his authority comply with that Plan. Tr. 76. Doan's recollection was that the shuttle car
operator saw the accident occur, a fortunate development, as that shuttle operator was able to
rapidly come to Sexton's aid by using the remote to unpin Sexton from his trapped position
against the rib. Tr. 77. Sexton, testifying later, asserted that the shuttle car operator did not see
the accident actually occur but that he arrived shortly thereafter. However, Sexton stated that he
was already pinned against the rib when the shuttle car operator came upon the scene. Tr. 86.
The shuttle car operator arrived at that time because Sexton had started moving the continuous
miner to the face and thus the shuttle car operator had arrived to get a load of coal from the
miner. Tr. 86. The Court finds that no miner, other than Sexton himself, observed the accident.9

Bobby Dean Sexton, the foreman who was injured, also testified. Sexton has been a
foreman for some 10 or 11 years. Tr. 80. He was operating the continuous miner because the
usual miner operator had gone to lunch. Tr. 82. Sexton decided to put the continuous miner back
to the task of mining coal, that is to say, he decided to tram the miner back into the heading and

9

However, that is of no consequence to the finding ofunwarrantability. With an accident
requiring the foreman's treatment at a hospital, word would have quickly passed about the
circumstances and where Sexton was located when the accident occurred. Thus, directly
observed or not, Sexton set a bad example for his crew.
33 FMSHRC Page 869

he volunteered with his answer that he knew "the bottom was busted up there ... " Tr. 82- 83.
He also agreed that in doing so, he was using the continuous miner's remote control and that he
placed himself in the shear. Tr. 84. Thus, Sexton himself admitted that he knew of the problem
with the floor and he eventually conceded that he was in the shear when the accident occurred.
Significantly, when Sexton was asked to concede that the shear is in the red zone, he
expressed that he did not agree that was the case, contending, by not answering the question, with
his own challenge: "[w]here else are you going to get it?" Tr. 84-85. Accordingly, he expressed
instead that, though in the shear, he thought he was in a "safe place." Tr. 85, 89. With little
choice but to admit the obvious, as he was then pinned against the rib, he then admitted that he
was not in fact in a safe place. Tr. 85-86.
Sexton also advised the Court that his intention was to run the continuous miner and start
mining coal. Tr. 88. Just prior to the accident, Sexton stated that he was focusing on the pan on
the miner because he was trying to get it "up over the top of that rock [on the mine's floor] where
it was busting up." Tr. 88.
Sexton would not concede that, were he to do it again, he would not have placed himself
in that position, as, in his view, "that's the only place to get to get out of the way." Tr. 89. He did
not feel he could be elsewhere because he had the shuttle car on its way and he knew of no other
place to be away from that car's arrival. As he put it,"[y]ou're locked up there with nowhere to
·go." Tr. 90. Thus, if faced with the same situation, though knowing he would be pinned, he
would have stayed where he was at the time of his injury: "I believe I would, yeah." Tr. 90..
Despite holding that point of view, he agreed he was standing in a pinch point. Tr. 90. Sexton
also agreed that it was a violation of the roof control plan to stand in a pinch point while
tramining the continuous miner. Tr. 91. Still, he insisted that he could think of no safer place to
have 'been than where he was. Tr. 92. By taking that stance, he demonstrated a failure to have
learned from the event. This attitude, held prior to the accident as well, also speaks to the
unwarrantability of his conduct. After several attempts to obtain an answer, Sexton eventually
admitted that he did know that he was in the red zone at the time of the accident. 10 Tr. 93-94.
Thus, Sexton believed there was no where else he could have positioned himself. He had to
watch the bottom, as he was trying to have the continuous miner's pan avoid the uneven floor
10

Sexton stated that had the accident not occurred and had he been able to get the
continuous miner back to the face, he would then have been outby the tail of the continuous
miner and therefore out of the red zone at that time. Tr. 100. That is to say, had the continuous
miner been trammed back to the face, once it had moved past the shear area on its way to the
destination, that is, the face, he would not then have been in the red zone any longer. Tr. l 02.
Thus, the red zone is not a fixed position. It changes because it is relative to the location of the
continuous miner at any given point in time. However, when the accident occurred, Sexton
admitted that when he was struck by the tail boom of the continuous miner he was standing in the
shear and that he was inby and that he was therefore in the red zone at that time. Tr. 101.
33 FMSHRC Page 870

and he was concerned about the shuttle car which was on its way to receive an anticipated load of
coal. Tr. 102.
The shuttle car operator on the day of Sexton's accident, Garland Gilliam, then testified.
Much like Sexton, despite the accident, Gilliam did not agree that Sexton was in an unsafe
location at the time of the accident. Tr. 106-107. He also felt there was no other place Sexton
could have been. Tr. 107, 110. Accordingly, Sexton's established dangerous location was also
viewed by one of his crew members as non-problematic. Gilliam was poised around the comer
from the continuous miner, about 10 to 15 feet from it and he was waiting for the continuous
miner to advance, at which point he intended to pull up behind it. Tr. 109. Thus, he stated that
the normal mining process was that as the continuous miner is pulling into the face, the shuttle
car operator is to be following in right behind. Tr. 111. Gilliam thought that a distinguishing
factor was that the continuous miner was making the "second cut" and that he had no idea where
the red zone was under such circumstances. Tr. 112. However, it is important to bear in mind
that at the time of the accident, Sexton was not in the second cut. Rather, he was tramming the
continuous miner to make the second cut. 11 Gilliam agreed with counsel for the Respondent that
Sexton was in a confined position because of the line curtain and the shuttle car and that
therefore, in his view, there was no other safe place to be. Tr. 114.
However, critically, while Gilliam had asserted that between the twin concerns of the line
curtain and his operation of the shuttle car; there was no safe place for Sexton to be and avoid
those concerns, he agreed that if the shuttle car operator had simply slowed down and not ~een
intent upon coming up behind the continuous miner within seconds of its intended arrival at the
·face, Mr. Sexton could have stood outbythe tail of the continuous miner. Tr. 119-120.· _Thus
Sexton could have stood outby the tail and then the shuttle car operator could have pulled in
behind, albeit at a slower speed. As Gilliam expressed it, "It's an option, yes." Tr. 119. Further,
Gilliam expressed that such an option would slow down coal production. That is, employing.
such a technique would not allow mining to resume as quickly as possible. Tr. 119-120,

Jn response to a question from the Court,· Gilliam reaffirmed that, in fact, had they
proceeded differently, there was a place where Sexton could have stood which would have been
safer, although such a location would have, as just noted, slowed down the production of coal.
Tr. 121.
After the government rested, for its part the Respondent called Gregory Halcomb as a
witness. Halcomb's experience includes having run a continuous miner for more than 20 years.

11

To be particularly accurate, the second cut had been started but then the continuous
miner broke down, requiring repairs. After the repairs were made, Sexton took over and began
tramming the continuous miner back to the face to continue making the second cut. Thus the
continuous miner was on its way back to the face when it encountered the bad floor, causing it to
pivot and strike Sexton as he stood in the red zone at the location of the shear, as indicated on
Exhibit 1 A.

33 FMSHRC Page 871

Tr. 125. He has worked with Sexton for more than 10 years. Tr. 125. On the day of the
accident, Halcomb was filling in as an "extra miner" for the individual who normally would have
operated the continuous miner on that day. Tr. 126. He had started making the second cut and in
doing so had placed himself in "the flat, shearing," (i.e. he was standing in the shear) which
location he considered to be the only place and the safest place he could be. Tr. 126, 128. As
with Gilliam's testimony, Halcomb agreed that Sexton could have in fact stood outby the shear if
no shuttle cars would be coming up. Tr. 132. Thus one could stand back out into the entry. Tr.
132-133.

Respondent's Post-Bearing Brief
Respondent contends that the Secretary did not establish unwarrantable failure. By its
view, the evidence does not establish aggravated conduct, nor that it meets "any of the
Commission's definitions of what constitutes unwarrantable failure.'' R's Br. at 7. Accordingly,
it contends that there was no showing of "not justifiable and inexcusable" conduct, nor was it
shown that the conduct was "more than inadvertence, thoughtlessness or inattention." Id.
Instead, from Respondent's perspective, foreman Sexton "did not realize his location in
relation to the tail boom," and "did not deliberately violate the roof control plan." Contrary to .
those very assertions, Respondent then immediately asserts that, while Sexton did not realize his
location- and did not deliberately violate the plan, he "did not consider himself to be in violation
of the plan since he did not think there was any safer place he could have stood to have operated
the miner from its position." Id. at 7-8. Respondent continues that Sexton "reasonably believed
that his actions were safer than any alternative" and, that being his state of mind, it asserts there
was no unwarrantable failure. Id. at 8, (emphasis in brief). Apart from the facts, as found by the
Court herefo, Respondent's argument contradicts itself Respondent cannot simultaneously
assert that Sexton's actions were without realization of his location in relation to the tail boom
and not delib,erate, while also claiming that Sexton viewed his actions as not in violation of the
roof control plan as he deemed his position to be the safest location for him. The latter claims
bespeak conscious activity on Sexton's part and therefore flatly contradict any claim that his
actions were not deliberate. Beyond the conflicting arguments of counsel, Sexton's own
testimony shows that he knew exactly what he was doing.
Respondent's Counsel also repeats the theme in its brief, twice, that Sexton was standing
in the "only place a miner operator could be positioned to operate the miner by remote... It then
adds "It is an undisputed fact that ifSexton had stood in the entry. he would not have been
able to see to have operated the miner." Id. at 8 (all emphases in brief). The problem with this
contention is that it tells only half the story. Sexton had another, safe, position he could have
located himself, but the overriding concern was to resume mining coal. This was unwise. Had
the section foreman slowed things down, as he certainly could have, and moved to the position
which he admitted was safe, resumption of coal mining would have been only very briefly
delayed.
The consequence of focusing solely on the resumption of coal mining was that a significant,

33 FMSHRC Page 872

rather than a momentary, delay in mining came about from the accident which ensued.

Respondent also contends that "the roof control plan [did] not specifically address the
factual situation presented in this case [,namely] ... where a miner operator should position
himself to operate a continuous miner in a second cut."12 Id. at 9. Last, in its weakest
contention, Respondent seems to suggest that while Sexton is a shift foreman, he became a mere
miner as he "was acting as a continuous miner operator when the accident occured." Id. Thus,
while admitting that a foreman is to set a good example, Respondent seems to suggest that the
responsibility vanishes where a foreman takes over a miner's task, such as here, where the crew
member is on a lunch break. No authority is cited for this novel argument that one's status as a
foreman ebbs and flows depending on the foreman's particular activity of the moment.
Apart from its contentions regarding unwarrantability, Respondent believes that the
proposed $60,000.00 civil penalty is excessive. It seems to acknowledge that, though a higher
penalty can have the effect of persuading the operator to encourage its management to comply,
there is no evidence here that the Respondent does not already do that. Id. at 9. That may be the
case, or it may not be, as the record does not speak to that, but the contention misses the point
that a significant penalty can help focus the mind on those efforts and whether, in view of the
section foreman's decisions here, management's encouragement of compliance with the safety
regulations needs to be revisited, as stimulated through an attention-getting civil penalty.

In its post-hearing Reply Brief, the Secretary notes, as the Court did earlier in this
decision, that in Wilmont, the Commission observed that supervisors have an obligation to set a
good example for non-supervisory miners working under their direction, which is the situation
which existed in this instance. The Secretary also points out that Sexton was a foreman,
regardless of the particular task he may engage in at any given moment. Sec. Reply at 2.
The Court, as stated, agrees. In fact, the Secretary maintains that there is an especial duty when a
foreman takes over a subordinate's normal task to set the proper example. Here, as the Secretary
correctly notes, this example was even more important because Sexton was not only a foreman,
he had also been a long experienced continuous miner operator during his mining career.
The record, as previously discussed, shows that Sexton's poor practice impacted Gilliam's
perspective adversely.
To the contention that Sexton did not deliberately violate the roof control plan, and that
he had no choice but to stand in the red zone, the Secretary reminds that Sexton acknowledged
that he knew he was in the red zone. Sec. Rely at 3-4, citing Tr. 93-94. Clearly the record

12

Respondent also points to the "Red Zones are No Zones" chart because it also does not
advise where one should be located for a second cut. R's Br. at 9 and R's Ex. 1. Again, this is a
misdirected argument. Sexton was on his way to the face, and not in the process of actually
continuing with the second cut Besides, even Sexton admitted he was in the red zone when the
accident happened.
33 FMSHRC Page 873

supports the Secretary on this point and the Court explicitly finds it as a fact.
Last, the Secretary asserts that the violation was of an aggravated nature and thus
unwarrantable. It contends that the record reflects that the Respondent, at least through its
section foreman's actions, placed production over safety. The Court agrees with that
characterization as well, and this too is a finding of fact, based on the record as a whole. It is
clear, from Sexton's own testimony that his focus was on resuming coal production, not safety.
Accordingly, the Court agrees with the Secretary that a "production over safety mentality [ J
caused the accident." Id. at 5. As the Secretary aptly described it, "[i]fSexton would have
stopped production and instructed the shuttle car operator to stay put, Sexton could have
trammed the miner into the heading while standing outby the tail." Id. As the shuttle car
operator admitted, if they had simply slowed things down, Sexton could have placed himself in a
safe position and that choice was an available option, albeit with a momentary lull in the
production of coal. Tr. 118-120.
Accordingly, for all the reasons discussed supra, the Court finds the violation was an
unwarrantable failure.
Civil Penalty Assessment
·The Court agrees with the Secretary's analysis ofthe·appropriate civil penalty to be imposed in
this instance, and it incorporates by reforence, those pages reflecting the Secretary's .review of the .
penalty criteria. Sec. Br. at 8-9. Thus the Court, upon taking into account the civil penalty
criteria set forth in section 1 lO{i) of the Act. 30 U.S.C; § 820{i), subscribes and adopts that
ahalysis 13 in its determination that the appropriate civil ·penal!)· is $60,000.00 {Sixty thousand
dollars), as initially proposed.

ORDER
13

Accordingly by virtue of the incorporation by reference, the Secretary's analysis of the
history of previous violations, size of the operator, ability to continue in business, gravity,
including the finding that the violation was significant and substantial, which finding was not
challenged in any event, and the good faith abatement are all adopted by the Court. The
negligence, rising to unwarrantable failure, has already been discussed in the body of this
decision.

33 FMSHRC Page 874

Within 40 days of the date of this decision. Stillhouse Mining IS ORDERED to pay a
civil penalty of$60,000.00 for the violation of section 75.220(a)(l), as set forth in Citation No.
7502252. Upon payment of the penalty, this proceeding IS DISMISSED.

William B. Moran
Administrative Law Judge

Distribution
Matt S. Shepherd, Esq.
U.S. Department of Labor
Office of the Solicitor
618 Church-Street, Suite 230
- Nashville, TN 37219
Noelle Holladay True, Esq.
Rajkovieh, Williams, Kilpatrick & True, PLLC
3151 Beaumont Centre Circle, Suite 375
Lexington. KY 40513

n:

Mr. Richard Cohelia
Stillhouse Mining, LLC
P.0.Box527
Benham, Kentucky 40807
ryg

33 FMSHRC Page 875

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

April 18, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2008-503-M
A.C. No. 20-00422-151959-02

V.

TILDEN MINING COMPANY, L.C.,
Respondent.

Mine: Tilden Mine

DECISION ON CROSS-MOTIONS FOR SUMMARY DECISION
Appearances: Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor,
Chicago, Illinois, on behalf of the Secretary of Labor;
R. Henry Moore, Esq., Arthur M. Wolfson, Esq., and Jason P. Webb, Esq.,
Jackson Kelly PLLC, Pittsburgh, Pennsylvania, on behalf of the Respondent.
Before:

Judge Paez

This case is before me upon the Secretary's filing of a petition for assessment of civil
penalty, pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 ("Mine Act"
or "Act"), 30 U.S.C. § 815. The Respondent, Tilden Mining Company, L.C. ("Tilden Mining"),
timely filed an answer, and the case was assigned to me for hearing and decision. Both parties
have moved for summary decision pursuant to Commission Rule 67, 29 C.F.R. § 2700.~7.
Tilden Mining filed a motion for summary decision on August 31, 2010, seeking to vacate
Citation No. '6400301, dated April 16, 2008, and Citation No. 6400312, dated April 20, 200&,
and issued under section 104(a) of the Mine Act, 30 U.S.C. § 814(a). (Tilden's Mot. for Summ.
Decision.) The parties conferred, agreeing that all violations except Citation Nos. 6400301 and
6400312 could be settled, and set a briefing schedule. The Secretary tjmely filed her response to
Tilden Mining's motion as well as her cross-motion for summary decision on October 6, 2010.
(Sec'y Cross-Mot. for Summ. Decision.) Tilden Mining's response to the Secretary's
cross-motion for summary decision was timely filed on November 1, 2010. {Tilden's Re&'P. to
Sec'y Cross-Mot. for Summ. Decision.) Thereafter, on November 9, 2010, the Secreta..ry filed
her reply to Tilden Mining. (Sec'y Reply to Tilden's Resp.)
On October 28, 2010, I issued a Decision Approving Partial Settlement in Docket Nos.
LAKE 2008-502-M and LAKE 2008-503-M in which all the citations were resolved, except the
two now before me in Docket No. LAKE 2008-503-M. Both citations allege a violation of
30 C.F.R. § 56.12028 for failing to test and record the resistence of extension cords used as part
of the grounding system at this surface mine. MSHA determined both citations did not

33 FMSHRC Page 876

significantly and substantially contribute to the cause and effect of a mine safety or health hazard.
The parties stipulate there is no genuine issue as to any material fact involving these citations.

I. Brief Summarv of the Parties' Areuments
Tilden Mining argues in its submissions that 30 C.F .R § 56.12028 does not apply to
extension cords. (Tilden's Mot. for Summ. Decision, 8.) It submits that I should apply
Administrative Law Judge T. Todd Hodgdon's holding in Secretary ofLabor v. Hibbing
Taconite Co., 21 FMSHRC 346 (March 1999) (ALJ), where he vacated 67 citations and held that
§ 56.12028 does not apply to extension cords, power cords, or cables. (Id. at, 11.)1 Tilden also
argues that MSHA's Program PolicyManual provisions on§ 56.12028, and 1994 Program
Policy Letter No. P94-N-1 on which they are based, are not interpretative guidelines but
substantive rule changes to 30 C.F.R § 56.12028, requiring notice and comment rulemaking.
(Id. at,, 11-16,Ex. 3.)
The Secretary argues in her submissions that § 56.12028 applies to extension cords, as
"extension cords are part of the grounding system because they constitute equipment grounding
conductors." (Sec'y Cross-Mot. for Summ. Decision, 6.) The Secretary also argues that the
Program Policy Manual and Program Policy Letter do not contain substantive rule changes but
are interpretative rules that do not require notice and comment rulemaking. (Id. at 12-15, Ex. 4.)
Finally, the Secretary argues that AU Hodgdon's decision in Hibbing Taconite is not binding
precedent and that it is inconsistent. with Sixth Circuit case law. (Id. at 10-12.)

II... Issue Statement
The dispositive issue is whether extension cor~s should be considered part of a grounding
s~tem subject to continuity and resistence testing under 30 C.F.R. § 56.1io2s, and if so, whether
requiring .notice and comment rulemaking.
this constitutes. a substantive change in the standard
.

ill. Principles of Law
The safety and health standard promulgated under the Mine Act and applicable to this
case is § 56.12028, which provides as follows:
Continuity and resistance of grounding systems shall be tested immediately after
installation, repair, and modification; and annually thereafter. A record of the
resistance measured during the most recent tests shall be made available on a

1

Although Tilden Mining advocates following AU Hodgdon's decision to vacate these
two alleged violations of§ 56.12028, another AU had affirmed a violation of the same standard
after publication of PPL No. P94-N-l. Sec '.Y ofLabor v. Bob Bak Construction, 19 FMSHRC
582, 590-91 (Mar. 1997) (ALJ Fauver) (finding a violation of§ 56.12028 for failing to perform
continuity and resistence testing of grounding systems on "portable extension cords").
33 FMSHRC Page 877

request by the Secretary or h[ er] duly authorized representative.
30 C.F.R. § 56.12028 (2010).
Program Policy Letter No. P94-IV-l, first issued in 1994 and cited by both parties, recites
the language of§ 56.12028 and provides, in relevant part, as follows:
[56/57.12028 Testing Grounding Systems]
The intent of this standard is to ensure that continuity and resistance tests of
grounding systems are conducted on a specific schedule. These tests will alert the
mine operator if a problem exists in the grounding system which may not allow
the circuit protective devices to quickly operate when faults occur. With the
exception of fixed installations, numerous fatalities and injuries have occurred due
to high resistance or lack of continuity in equipment grounding systems. These
accidents could have been prevented by proper testing and maintenance of
grounding systems.
Grounding systems typically include the following:
1.

equipment grounding conductors - the conductors used to connect
the metal frames or enclosures of electrical equipment to the
grounding electrode conductor;

2.

grounding electrode conductors - the conductors connecting the
grounding electrode to the equipment grounding conductor; and

3.

grounding electrodes - usually driven rods connected to each other
by suitable means, buried metal, or other effective methods located
at the source, to provide a low resistance earth connection.

Operators shall conduct the following tests:
1.

equipment grounding conductors - continuity and resistance must
be tested immediately after installation, repair, or modification, and
annually if conductors are subjected to vibration, flexing or
corrosive environments;

2.

grounding electrode conductors - continuity and resistance must be
tested immediately after installation, repair, or modification, and
annually if conductors are subjected to vibration, flexing or
corrosive environments; and

33 FMSHRC Page 878

3.

grounding electrodes - resistance must be tested immediately after
installation, repair, or modification, and ailnually thereafter.

Grounding conductors in trailing cables, power cables, and cords that supply
power to tools and portable or mobile equipment must be tested as prescribed in
the regulation. This requirement does not apply to double insulated tools or
circuits protected. by ground-fault-circuit interrupters that trip at 5 milli-amperes
or less.

A record of the most recent resistance tests conducted must be kept and made
available to the Secretary or his authorized representative upon request. When a
record of testing is required by the standard, MSHA intends that the test results be
recorded in resistance value in ohms.
MSHA Program Policy Letter (''PPL") No. P94-N-1, at 2-3 (U.S. Dep't of Labor, 1/3111994).
Two years after issuing PPL No. P94-N-1, MSHA reiterated it verbatim in its 1996 Program
Policy Manual which it republished, verbatim, in 2003. See N MSHA, U.S. Dep't of Labor,
Program Policy Manual ("PPM"). Parts 56/57, at 44-45 (Release N-21, Feb. 2003).
Finally, Commission Procedural Rule 69(d), provides that, "[a] decision of an
Administrative Law Judge is not binding precedent upon the Commission." 29 C.F.R.
§ 2700.69(d).

IV. Discussion and Conclusions of Lal{
TildenMining relies on ALJ Hodgdon's decision in Hibbing Taconite2 as support for its
argument that 30 C.F.R. § 56.12028 does not apply to extension cords. It states, "First and
foremost, the ALJ determined that the standard did not apply to extension cords, power cord~
and cables ... the AU found[,] instead[,] that if the Secretary wanted to apply this standard to
extension cords, power cords, and cables, she would have to proceed with notice and comment
rulemaking." (Tilden's Mot. for Summ. Decision if 4.)

2

Under Commission rules, ALJ Hodgdon' s decision in Hibbing Taconite is not binding
in this matter. 29 C.F.R. § 2700.69(d). I do agree with ALJ Hodgdon regarding the law he found
applicable in Hibbing Taconite, including citation to the case law, the Administrative Procedure
Act, the Mine Act, and the standard. They are also applicable here. However, for the reasons
stated herein his conclusions in that matter - that § 56.12028 does not include extension cords
and that notice and comment rulemaking is required for the changes brought by the PPL- do not
apply in this case.
33 FMSHRC Page 879

Tilden Mining argues that, "The ALJ further found that the Secretary had inappropriately
tried to characterize a 1994 Program Policy Letter, which declared that[§] 56.12028 applied to
extension cords, power cords, and cables, as an interpretative rule. The ALJ determined that the
1994 Program Policy Letter was not an interpretative rule because it had the effect of amending a
prior legislative rule." (Tilden's Mot. for Summ. Decision ii 4.)

A.

Deference to the Secretary's interpretations of her regulations

Tilden Mining contends that when the Secretary has made a policy decision for some
years, in this case, not including extension cords in the definition of grounding systems from
1978 through 1993, and then changes her mind to include them within the definition by issuing a
Program Policy Letter in 1994, this violates the notice and comment procedures of the
Administrative Procedure Act. Tilden Mining further argues that the Secretary made explicit in
her 1988 PPM that ''the annual test does not apply to grounding conductors in trailing cables,
power cables, and cords which provide power to portable or mobile equipment." (Tilden's Resp.
to Sec'y Cross-Mot. for Summ. Decision ii 10.)
However, the United States Supreme Court has ruled that the Secretary can change her
interpretation, if the new interpretation as reviewed by a court, fits within the.Secretary's original
understanding of the statute. The Supreme Court has stated, "[a]n administrative agency is not .
disqualified from changing its mind; and when it does, the courts still sit in review of the
administrative decision and should not approach the statutory construction issue de novo and
without regard to the administrative understanding of the statutes." NLRB v. Local Union No.
103, Iron Workers, 434 U.S. 335, 351 (1978). The Supreme Court cautioned that the "task is not
to decide which among several competing interpretations best serves the regulatory purpose.
Rather, the agency's interpretation must be given controlling w~ight unless it is plainly erroneous
or inconsistent with the regulation." Thomas Jefferson Univ. v. Shala/a, 512 U.S. 504, 512
(1994). The. Commission historically gives deference to the Secretary's interpretation of her
regulations and has stated, "[it is] mindful that the Commission and the courts are obliged to give
weight to the Secretary's interpretation of [her] regulations." Secy ofLabor v. Dolese
Bros.,16 FMSHRC 689, 692 (Apr. 1994); see also SecyofLaborv. Daanen &Janssen, Inc.,
20 FMSHRC 189, 193 ...94 (Mar. 1998) (citing to Dolese Bros. and noting "the Commission long
has recognized [the PPM] as evidence ofMSHA's policies and practices."). Indeed, the
Commission's decision in Daanen & Janssen is instructive, as the Commission discussed the
term "system" as it relates to braking systems to find the standard ambiguous, thus deferring to
the Secretary's long-held interpretation in the PPM as a reasonable interpretation ofthe
standard's plain language. Daanen & Janssen, 20 FMSHRC at 191-94.
Notwithstanding the Secretary's prior interpretation to exclude extension cords from such
testing, the Secretary provided notice to the regulated community through her 1994 PPL when
she began to include grounding conductors in extension cords within the definition of grounding
electrode conductors, and when she started requiring continuity and resistance testing
immediately after repair, modification, and annually thereafter if the conductors were subjected

33 FMSHRC Page 880

to vibration, flexing, or corrosive environments. See PPL No. P94-N-1 (1/3111994). Section
56.12028, as written, is broad enough to include grounding conductors in extension cords within
the definition of "grounding systems." Under a reasonable reading, the inclusion of grounding
conductors in extension cords within the definition of grounding systems would not be
considered a substantive change to the standard unless it was inconsistent with the standard or
went beyond the standard to create a new requirement. Cf Daanen & Janssen, 20 FMSHRC at
193 ("Because the definition of the term 'system' entails an interrelationship of component parts,
it follows that for the system to be considered functional, each of its component parts must be
functional."). Neither of those situations is present here, as it is reasonable to conclude that the
grounding conductors in extension cords can be used as a component in grounding systems.
Because the 1994 PPL requirements are consistent with§ 56.12028, I determine that the
Secretary's interpretation of this standard is reasonable and should be given weight here.

B.

Extension cords fall under § 56.12028

Grounding conductors in extension cords are part of the grounding system because they
are the grounding electrode conductors that connect .the equipment in a mine to power outlets.
Due to this function, they are an essential part of a grounding system. According to Inspector
Leppanen, "Extension cords are the means by which metal-encased equipment, including
portable, hand-held equipment such as a welder, is tied into the grounding system and thus are
integrai parts of the grounding system." (Sec'y Cross-Mot. for Swnm. Decision, Ex·. 3.)
According to the PPM, extension cords supply power to tools and to portable and mobile
equipment. Due to their function and the importance of preventing electric shock to miners,
continuity testing must be performed. on all aspects of the grounding system, including
grounding conductors in extension cords. Extension ·cords can and have been tested utiJizing a
continuity test. (Id.) According to Leppanen, "Conducting a continuity test assures ... that the
equipment being used is connected directly to the ground prong, and thus the grounding circuit is
complete." (JlJ.)
In determining whether grounding conductors in extension cords fall under the standard,
first, I find that extension cords and the grounding conductors they contain are part of the
grounding system and can be tested. Second, I give deference to the Secretary in her
interpretation of her standard because the standard is broad enough to include a change that is
neither substantive nor contradictory. Due to the deference given to the Secretary and the fact
that this inclusion is not contradictory to the standard, I determine that 30 C.F.R. § 56.12028
applies to grounding conductors in extension cords.

C.

Notice and comment rulemaking proceedings

The United States Court of Appeals for the District of Columbia. Circuit has stated in
Alaska Professional Hunters v. FAA that, "[w]hen an agency has given its regulation a definitive
interpretation, and later significantly revises that interpretation, the agency has in effect amended
its rule, something it may not accomplish without notice and comment." 177 F.3d 1030, 1034

33 FMSHRC Page 881

(D.C. Cir. 1999). In Syncor International Corp. v. Shala/a, the D.C. Circuit held that a
modification of an interpretative rule that changes the agency's substantive regulation will "likely
require a notice and comment procedure." 127 F.3d 90, 94-95 (D.C. Cir. 1997). In this case,
Tilden Mining argues that when the Secretary issued the 1994 PPL, and later the 1996 PPM, it
was a substantive rule change requiring notice and comment rulemaking.
I must first determine whether the PPM's provisions are substantive rules and then assess
if notice and comment rulemaking was required for both the PPL and the PPM. The Commission
has held that, ''the Enforcement Guidelines and the PPM are not binding on the Secretary or the
Commission," and in citing to King Knob Coal Company noted that ''the Manual's 'instructions
are not officially promulgated and do not prescribe rules of law binding upon this
Commission.' ... [T]he express language of a statute or regulation 'unquestionably controls' over
material like a ... manual." Sec'y ofLabor v. D.H. Blattner & Sons, 18 FMSHRC 1580, 1586
(Sept. 1996) (quoting King Knob Coal Co., 3 FMSHR.C 1417, 1420 (June 1981) (citations
omitted)). Here, the PPM and the PPL are not rules oflaw but are the Secretary's interpretations
of§ 56.12028. Neither the PPL nor the PPM are binding on the Commission or the Secretary.
Rather, the PPM and the PPL give mine operators detailed notice of how MSHA ingpectors will
enforce the Secretary's regulations. However, neither the PPM nor the PPL have the force oflaw
that a standard or a statutory provision would have.
·To determine if notice and comment rulemaking is required in this instance, I must
'examine the provisions of the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq.
According to the APA, "[g]eneral notice of proposed rulemaking shall be published in the Federal
Register, unless persons subject thereto are named and either personally served or otherwise have
actual notice thereof in accordance with law." 5 U.S.C. § 553(b). The APA has several
exceptions to the mandatory proposed rulemaking procedures for administrative agencies. The
notice and comment rulemak:ing procedures do not apply "to interpretative rules, general
statements of,policy, rules of agency organization, procedure, or practice; or [] when the agency
for good cause finds ... that notice and public procedure thereon are impracticable, unnecessary,
or contrary to the public interest." 5 U.S.C. § 553(b)(3)(A), (B).
The Secretary argues that the PPM and the PPL are interpretative rules that do not require
notice and comment rulemaking. 3 According to the D.C. Circuit, an interpretative rule ''typically
reflects an agency's construction of a statute that has been entrusted to the agency to administer."
Syncor Inter'! Corp. v. Shala/a, 127 F.3d 90, 94 (D.C. Cir. 1997). The Supreme Court defined an
interpretative rule as one "'issued by an agency to advise the public of the agency's construction
of the statutes and rules which it administers.' Interpretative rules do not require notice and
comment, although ... they also do not have the force and effect of law and are not accorded that

3

The Secretary does not argue that the PPM and PPL are general statements of policy,
rules of agency organization, procedure, or practice. Nor does she argue this is an instance where
MSHA, for good cause, found that notice and comment procedures were impracticable.
Therefore, I will not analyze the PPM or PPL under these exceptions.
33 FMSHRC Page 882

weight in the adjudicatory process." Shala/av. Guernsey Mem 'l Hosp.• 514 U.S. 87, 99 (1995)
(citations omitted).
Here, the requirements presented in the PPM provisions cited above do not result in a
substantive rule change to the provisions of30 C.F.R. § 56.12028. If the 1996 and 2003 PPM
provisions and the 1994 PPL had adopted a new position inconsistent with the Secretary's existing
regulations or significantly revised the existing regulations, then notice and comment rulemaking
would be required. As set forth. however, the PPL and PPM provisions are not inconsistent with
§ 56.12028, nor did they significantly revise§ 56.12028 when grounding conductors in extension
cords were included within the definition of "grounding systems." If anything, the PPL and PPM
provisions provide a clearer explanation of the requirements of§ 56.12028 to mine operators than
the ambiguous term "grounding systems" alone provides. Supplementing a previous provision
with a consistent interpretation does not create an APA notice-and-comment procedural violation.
In fact, § 56.12028 is broad enough to include grounding conductors in extension cords within the
definition of grounding systems.

I reject Tilden Mining's argument that notice and comment rulemaking is required for the
Secretary's new interpretation to include extension cords in the definition of grounding systems
contained in the PPL and subsequent iterations of the PPM. Therefore, I conclude the PPM and
PPL are interpretative rules of the regulatory standard at 30 C.F.R. § 56.12028 and fall under the
"interpretative rules" exception to the notice and comment requirements of the APA at 5 U.S.C.
§ 553(b)(3)(A).

D.

Prior notice of the interpretative rules at the Tilden Mine

The interpretative rule change was-implemented in the 1996 version of the PPM and ·
reiterated in the 2003 version, which to date remains MSHA's current interpretative rule. Thus,
Tilden Mining ,has been on notice since the issuance of the 1994 PPL (and the later iterations of
the PPM) that the Secretary interprets extension cords to be electrode grounding conductors,
which are a part of the grounding system and subject to the testing and recordk:eeping
requirements of§ 56.12028. Although the notice argument made by the operator in the Hibbing
Taconite decision may have been persuasive at that time, given that the interpretative rule change
had only been recently implemented, I cannot apply the facts of Hibbing Taconite to the facts of
this case. See Hibbing Taconite Co., 21 FMSHRC 346 (March 1999) (AU). Here, Tilden
Mining has had fourteen years notice of the Secretary's change in interpretation (and at least five
years notice since republication of the 2003 PPM after the 1999 Hibbing Taconite ALJ decision)
until the issuance of Citation Nos. 6400301 and 6400312.4

In fact, Robert Leppanen, the MSHA inspector assigned to the Tilden Mine, stated in his
declaration that he has enforced§ 56.12028 to include "trailing cables, power cables, and
4

The PPL was issued in 1994 and the new PPM language was published in 1996 and
republished in 2003; the citations in this case were issued in 2008.
33 FMSHRC Page 883

extension cords" at the Tilden Mine since 2004. (Sec'y Cross-Mot. for Summ. Decision, Ex. 3.)
Given this unrefuted statement as well as the fact that the 1996PPM requirements were
republished in the 2003 PPM, I find Tilden Mining had ample notice of the Secretary's
interpretation of how she would enforce the requirements of§ 56.12028. Tilden violated that
standard by not conducting continuity and resistence testing on the cited extension cords and
recording it.

E.

Drummond's application to this case

Tilden Mining cites to Secretary ofLabor v. Drummond Company, 14 FMSHRC 661
(May 1992), as support for its proposition that the 1994 PPL at issue in this case resulted in a
substantive change to the standard. In Drummond, the Commission heard an appeal from a mine
operator that argued the Secretary's proposed penalty assessments were improper because they
were not based on the Secretary's civil penalty regulations; as set forth under 30 C.F.R. Part 100.
Instead, the penalties were computed using the Secretary's excessive history program that she set·
forth in a 1990 Program Policy Letter. The mine operator argued that the new excessive history
program was unlawfully implemented in violation of the APA notice-and-comment requirements.

Drummond is distinguishable from this case because the Secretary in Drummond created a
completely new category for designating points to mine operatol"S that had a history of prior
violations. This new category created steeper penalties for these mine operators for any future
violations. This was a substantive change from the previous civil penalty regulations set forth in
30 C.F.R. Part 100, as the mine operators would now incur more monetary liability than before
without the ability to comment on the new proceedings. Drummond, 14 FMSHRC at 681-90.
The Commission determined the PPL in Drummond established a new category of special history
assessment for significant and substantial violations, and that notice and comment proceedings
were required before such substantive changes which greatly effect private interests could be
imposed. Th~ Commission held that the PPL was issued in contravention of the APA and would
be accorded no legal weight or effect. Id. at 690.
The main difference between this case and the Drummond decision is that in Drummond,
the Secretary attempted to implement a substantive rule change. Here, including extension cords
within the definition of "grounding systems" and finding them to be grounding electrode
conductors is not a substantive rule change. In fact, it is an interpretative rule change that does
not require notice and comment procedures. As stated previously, the Secretary is not prohibited
from changing her interpretation, as long as her new requirements do not greatly derogate from
her previous interpretation. Here, the Secretary's inclusion of extension cords as part of a
grounding system is a reasonable and consistent interpretation of§ 56.12028. Therefore, after
comparing the case at hand to the facts in Drummond, I find that Drummond is inapplicable to the
facts in this case.
For all of the reasons discussed above, I conclude that extension cords and the grounding
conductors within them are part of the grounding system and that the Secretary properly issued

33 FMSHRC Page 884

Citation Nos. 6400301 and 6400312. Additionally, I conclude that Tilden Mining has failed to
establish that the PPM's provisions violate the APA's requirements of notice-and-comment
proceedings. Pursuant to Commission Rule 67(b), 29 C.F.R. § 2700.67(b), I conclude that the
Secretary is entitled to summary decision as a matter of law.

V. Order
In view of the condusions above, it is hereby ORDERED that Tilden Mining's Motion
for Summary Decision is DENIED. It is further ORDERED that the Secretary's Cross-Motion
for Summary Decision is GRANTED. Citation Nos. 6400301 and 6400312 are hereby

AFFIRMED.
WHEREFORE, the Respondent is ORDERED to pay the penalty assessment of
$1,050.00 within 40 days of this decision.~ Upon receipt of full payment, this case is
DISMISSED.

AlanG. Paez
Administrative Law Judge
Distribution:
Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn
Street, 8th Floor, Chicago, IL 60604
Hank Moore, Esq., Jackson Kelly PI.LC, Three Gateway Center, Suite 1340, 401 Liberty Avenue,
Pittsburgh, PA 15222
/lo

5

Payment should be sent to: U.S. Department of Labor, Mine Safety and Health
Administration, Payment Office, P.O. BOX 790390, St. Louis, MO 63179-0390.
33 FMSHRC Page 885

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 I FAX: 202-434-9949

April 20, 2011
CNIL PENALTY PROCEEDINGS

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

Docket Nos. SE 2009-401-M
SE 2009-402-M
A.C. No. 09-01036-179032

V.

Docket No. SE 2009-553-M
AC. No. 09-01036-184807

MIZE GRANITE QUARRIES,INC.,
AND ROBERT W. MIZE Ill, AND
CLAYBORN LEWIS
Respondent.

Docket No. SE 2009-554-M
A.C. No. 09-01036-184807
Docket No. SE 2009-849-M
A.C. No. 09-01036-219258
Docket No. SE 2009-850-M
A.C. No. 09-01036-219259
Mine: Mize Granite Quarries

Appearances: Chama C. Hollingsworth-1V1alone, Esq.; Sophia E, Haynes, Esq.; and,
Angela R. Donaldson, Esq., Office of the Solicitor, U.S. Department
Of Labor, Atlanta, GA
for the Petitioner
Robert W. Mize, Ill, President, prose
for the Respondents
Before: Priscilla M. Rae, Administrative Law Judge
These consolidated civil penalty proceedings are before me pursuant to Sections 105(d)
and l lO(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.' 801, et seq., (the
"Act") charging Mize Granite Quarries, Inc. ("Mize"), and Robert W. Mize and Clayborn Lewis
as agents of Mize, with violations of mandatory standards. The general issue before me is
whether there were violations of the cited standards. Other issues include whether certain
violations were "significant and substantial," whether certain violations were caused by the
"unwarrantable failure" of Mize and whether certain violations were "knowing" violations
committed by Mize and Lewis as agents of a corporate mine operator within the meaning of
Section 110(c) of the Act. If violations are found to have been committed and if those violations
are found to have been "knowingly" committed by Mize and Lewis as agents of a corporate
33 FMSHRC Page 886

operator, then appropriate civil penalties must also be assessed utilizing the relevant criteria
under Section l lO(i) of the Act.
This matter was heard by me in Augusta, Georgia where the parties presented evidenced
and submitted exhibits. Both parties also submitted post hearing briefs and :financial information
pertaining to the Section 110(c) violations, which I have. considered in making this decision.

I. Stipulations
The parties entered into written stipulations prior to the hearing which were admitted as
S-19.and read into the record. They are that Mize engages in activities which affect interstate
commerce and that they are subject to the Mine Health and Safety Act of 1977, as amended. The
administrative law judge has jurisdiction to hear and decide this case pursuant to Section 105 of
the Act, 1 and to assess appropriate penalties pursuant to Section 11 O(i) of the Act.2 The citations
and orders contested herein were issued by Mine Safety and Health Administration ("MSHA")
certified inspectors John Mayer and Michael Cohen acting within their official capacity when so
issued. The copies of these orders and citations made exhibits hereto are true and accurate
copies. Robert Mize and Clayborn Lewis are agents as defined by the Act3 and the operat<;>r
1

Sec. 105 {d) states: If, within 30 days of receipt thereof, an operator of a coal or other mine
notifies the Secretary that he intends to contest the issuance or modification of an order issued under
section 104, or citation or a notification of proposed assessment of a penalty issued under subsection (a)
or (b) of this section, or the reasonableness of the length of abatement time fixed in a citation or
modification thereof issued under section 104, or any miner or representative of miners notifies the
Secretary of an intention to contest the issuance, modification. or termination or any order issued ·under
section 104, or the reasonableness of the length of time set for abatement by a citation or modification
thereof issued under section 104, the Secretary shall immediately advise the Commission of such
notification, and the Commission shall afford an opportunity for a hearing (in accordance with section
554 of title 5, United States Code, but without regard to subsection (a)(3) of such section), and thereafter
shall issue an order, based on fmdings of fact, affirming, modifying, or vacating the Secretary's citation,
order, or proposed penalty, or directing other appropriate relief. Such order shall become final 30 days
after its issilance. The rules of procedure prescribed by the Commission shall proVide affected miners or
representatives of affected miners an opportunity to participate as parties to hearings under this section.
The Commission shall take whatever action is necessary to expedite proceedings for hearing appeals of
orders issued under section 104.
·
2

Sec. 1lO(i) provides: The Commission shall have authority to assess all civil penalties
provided in this Act. fu assessing civil monetary penalties, the Commission shall consider the operator's
history of previous violations, the appropriateness of such penalty to the size of the business of the
operator charged, whether the operator was negligent, the effect on the operator's ability to continue in
business, the gravity of the violation, and the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of a violation. fu proposing civil penalties under
this Act, the Secretary may rely upon a summary review of the information available to him and shall not
be required to make findings of fact concerning the above factors.
3

Sec. 3(e) "agent'' means any person charged with responsibility for the operation of all or a
part of a coal or other mine or the supervision of the miners in a coal or other mine.

33 FMSHRC Page 887

demonstrated good faith in abating all violations. Mize is a small metal/non-metal mine
reporting 10,043 annual hours of production in 2009. Additional stipulations were entered into
at the hearing providing that all photographs offered by the Secretary are accurate depictions of
the conditions in question at the time of the inspections and the inspector's notes offered at the
hearing are true and accurate copies of the originals. Additional stipulations of fact were reached
with regard to certain citations which will be set forth within the discussion of the individual
citations.

II. Statement of Facts and Conclusions of Law
Robert Mize owns and operates Mize Granite Quarries, Inc., located in Elberton, GA.
The operation is a stone quarry which blasts, cuts and removes large blocks of dimensional stone
which is then sized and sold for the primary purpose of erecting monuments. The primary tools
used in the extraction process are explosives, wire saws and jackhammers or pneumatic drills to
size and drill holes into the blocks, cranes for extracting the block from the quarry, and front-end
loaders to load the blocks onto the flat bed trucks. The blocks weigh approximately 20,000 lbs. at
the time they are removed from the quarry. The company has been in business for ten years and
employs one foreman, Clayborn Lewis, and at the time of the hearing seven miners.
The orders and citations decided herein arose during two inspections conducted by authorized
MSHA inspectors. The Secretary also .conducted a special investigation which resulted in
· assessments against Robert Mize and Clayborn Lewis under Section 110(c) 4 of the Act which are
addressed herein, based upon four of the alleged violations.

A. The January 13, 2009 Inspection

2.- John Mayer is an authorized MSHA inspector with three years of experience in his position.
. Prior to his employment with MSHA, he was a maintenance administrator for the Department
of Defense responsible for ensuring equipment maintenance and safety. On January 13,
2009, Mayer arrived at Mize at approximately 9:00 am to conduct a ''walk and talk" which he
described as a courtesy visit to discuss conditions that they would be inspecting at a later date
to inform the operator of specific compliance requirements. Tr. 20. When he arrived at the
mine, Mayer met with Robert Mize and was later joined by Clayborn Lewis. As he stood
with these two gentlemen on the top ledge of the mine looking down upon the bottom ledge,
Mayer observed a pathway leading to the bottom ledge used by the miners to access the
working ledge that in his opinion was unsafe. The path was approximately two feet wide,
cluttered with loose material, wet, slick and elevated approximately eight feet above the
quarry floor. The pathway and the bottom ledge were at a right angle to one another forming

4

Sec. 110(c) Whenever a corporate operator violates a mandatory health or safety standard or
knowingly violates or fails or refuses to comply with any order issued under this Act or any order
incorporated in a final decision issued under this Act, except an order incorporated in a decision issued
under subsection (a) or section 105(c), any director, officer, or agent of such corporation who knowingly
authorized, ordered, or carried out such violation, failure, or refusal shall be subject to the same civil
penalties, fines, and imprisonment that may be imposed upon a person under subsections (a) and (d).

33 FMSHRC Page 888

a comer with a· wall rising up at the juncture requiring the two ledge men to access the
bottom ledge from the path by "skimming" across a 15" wide area for a distance of four feet
at an elevation of eight feet above the quarry floor. Tr. 27. The quarry floor was filled with
water of unknown depth and likely to be filled with rocks, in the inspector's opinion. Tr. 2226 and S-1 pg. 4. The ledge men told the inspector on the scene that they had accessed the
working ledge in this manner for several days. Tr. 27. Mr. Lewis told Inspector Mayer that
the condition had been that way only since that morning when he had a ladder removed that
had been used to span the gap between the two ledges. He was in the process of building, but
had not completed, a bridge to replace the ladder. Tr. 28-31. In Inspector Mayer's opinion,
however, the ladder would not have provided safe access either as it did not provide a flat
surface upon which to walk and did not have handrails to prevent a fall. Citation No.
6507102 was issued for unsafe access based upon this condition. S-1.

In order to abate the citation, Mr. Lewis completed construction of the wooden bridge. He
asked one of the miners to secure the bridge between the path and the bottom ledge. The miner,
in an effort to accomplish this, was operating a jackhammer under Foreman Lewis' supervision
while standing within two feet of the edge facing the water. After approximately 30 seconds,
Inspector Mayer advised Lewis that the miner needed to don fall protection. Mr. Lewis then told
the miner to put on the equipment but he did not secure it. Inspector Mayer then told Mr. Lewis
to instruct the miner to secure the gear which the miner did but he still failed to tie off. At that
point Mayer issued a Section 107(a) imminent danger order 5 to remove the miner from the area,
and issued Citation No. 6507104. Tr. 32-35, S-2 pg 1, S-3, pg 1 and photographs S-3 pgs 3-5.
C. The March 11 -12, 2009 Inspection
The remaining citations and orders were issued by MSHA Inspector Michael Cohen during
an inspection he performed on March 11 and 12, 2009. Inspector Cohen is familiar with mining
based upon bis ten year employment history as a maintenance supervisor for a surface and
underground limestone operation. Cohen has been an authorized MSHA inspector for two years
and has inspected 28 granite quarries. Tr. 58-61. He arrived at Mize at approximately 9:30 am
on the 11th when he saw two ledge men operating a rotary drill standing within three feet of the
ledge with a 40' drop to the bottom ledge. Neither of them had on fall protection. Tr. 62-64,
photograph S-5, pg 3. Inspector Cohen issued an oral imminent danger order (later reduced to

5

SEC. 107. (a) 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 innninent 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 tmtil an authorized
representative of the Secretary determines that such imminent danger and the conditions or practices
which caused such imminent danger no longer exist. The issuance of an order under this subsection shall
not preclude the issuance of a citation under section 104 or the proposing of a penalty under section 110.

33 FMSHRC Page 889

writing) and a Section 104(d)(l) order. 6 S-4 and S-5. At the time this condition existed, Mize
and Lewis were on the top ledge of the quarry looking down watching the miners at work. Tr.
66-67.
As the inspection on the 11th progressed, Inspector Cohen issued a second Section 104(d)
order for a condition he observed on the same bottom ledge area in which Inspector Mayer issued
his imminent danger order on January 131h. S-10. Inspector Cohen determined that because the
pathway the miners used to access the working ledge was elevated approximately six feet 7above
the quarry floor, a handrail was needed along the 45' of the path to prevent a trip and fall into the
water below. Tr. 82-84. The pathway cited by Inspector Cohen and Mayer leads to the bottom
ledge which in tum leads to the working ledge. The miners were gaining access to the working
ledge by climbing a set of stairs lacking a handrail. In order to exit the stairs onto the ledge, the
miners had to twist their bodies around the stairs while holding on to one side and step onto the
ledge, which als·o lacked a handrail. The ledge area at the top of the stairs was filled with large
loose rocks, a broken ladder, and uneven ground. Tr. 89-91 and photographs S-11pgs4-5.
According to Mr. Lewis, two miners used these stairs in this condition for-approximately eight
days. Tr. 92. Inspector Cohen issued a third Section l 04(d) order for this alleged violation.
Exhibit S-11.
Inspector Cohen, in the course of his two-day inspection at Mize, issued an additional six
Section 104(a) citations for alleged violations discussed below. S-6, 7, 8. 9, 12 and 13.
Mize presented evidence and argument that the citations and orders issued are unfair and a
product of an agenda on the part of MSHA to put a small operator who employs minority
workers out of business. Tr. 181. He cited his safety aw'lrd in 2007 and the lack of a history of
injuries in support of his position that he operates a safe mine that is being unnecessarily
targeted. Tr. 187 and Mize post hearing Brief of Respondents pg 47-54.
6

Sec. 104(d)(l)states: 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 fmds 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 fmds 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 fmding 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.
7

There is a discrepancy between Inspector Mayer's and Inspector Cohen's testimony as to
whether the ledge was elevated six or eight feet. I do not find it to be material; a fall from either height
would be equally serious.

33 FMSHRC Page 890

D. Citations and Orders

1.:. Citation No. 6507102 (S-1)
Tiris Sec. 104(d)(l)citation issued on January 13, 2009, by MSHA fuspector Mayer for a
violation of30 C.F.R. §56.1101 reads as follows:
Safe access was not provided on the southeast comer from one ledge to another at the
first level from the pit floor which was filled with water. Two Ledge (sic) men were
required to cross over a small footing between the two ledges which was approximately
15 inches wide for a distance of approximately 4 feet that was wet and covered with loose
material and was at a height of approximately 8 ft. Foreman Clayborn Lewis stated that
he knew about the condition because he had the crane operator remove the ladder that
was being used to cross from one ledge to another prior to the ledge men returning to
work in that area. Foreman Lewis stated that he felt that the ledge men would be okay
crossing the small footing until he could get a bridge built to connect the ledges.
Foreman Lewis engaged in aggravated conduct constituting more than ordinary
negligence in that he was aware that the condition existed from more than one day and
that (sic) employees were required to access that area at least twice daily for work. This
violation is an unwarrantable failure to comply with a mandatory standard.
The inspector designated the violation as having a high degree of likelihood to result in a
fatality, significant and substantial (S~S), affecting two persons and being the result of high
negligence and an unwarrantable failure. He determined that the condition had existed for two
days. Tr. 27. The proposed penalty is $9,634.00.
The Violation

30 C.F.R. §56.11001 of the Secretary's regulation cited in this violation requires safe
access be both provided and maintained by the operator. Although the regulation does not
provide a definition of the word "safe," the Commission has said of the term as it applies to her
regulations, it can be defined as ''whether a reasonably prudent person familiar with the factual
circumstances surrounding the alleged hazardous condition, including any facts peculiar to the
mining industry, would recognize a hazard warranting corrective action within the purview of the
applicable regulation." Alabama By-Products Corp., 4 FMSHRC 2128, 2130 (Dec. 1982).

The Commission has held, in construing a regulation worded identically to section
56.11001, regarding the means of access:
[T]he standard requires that each "means of access" to a working place be safe. This does
not mean necessarily that an operator must assure that every conceivable route to a
working place, no matter how circuitous or improbable, be safe. For example, an
operator could show that a cited area is not a "means of access" with the meaning of the
33 FMSHRC Page 891

standard; by proving that there is no reasonable possibility that a miner would use the
route as a means of reaching or leaving a workplace.

The Hanna Mining Co., 3 FMSHRC 2045, 2046(September1981).
The operator presented several arguments with respect to this citation. Either the means
of access between the two ledges was not unsafe, the miners did not cross between the two
ledges as Inspector Mayer described, they could have used fall protection if they chose to, or that
a bridge had been available that was specifically constructed for use to connect the two ledges
and was to be installed imminently. It had not been put into place when the inspector arrived
because mining operations were not yet underway-the worker Mayer saw was merely engaged in
surveying operations at the time. Plans were in place to move the bridge when quarrying began.
Tr. 47 and Brief of Respondents, pg 5.
In an attempt to establish that the miners did not cross the bottom ledge as described by
Mayer, Mize elicited through cross-examination that the inspector did not actually see how the
two miners accessed the working ledge. The men were already on the upper working ledge when
Mayer arrived. Tr. 41-42. However, when interviewed by Special Investigator Mary Mitchell on
April 14, 2009, Mize confirmed Inspector Mayer's observations. He stated that as Inspector
Mayer arrived on the property, the miners were on the ledge performing their usual duties. As he
and Mr. Lewis were watching the two miners working, the miners were "laying the block out.
Putting wedge in to brake with a hami:ner, preparing the block to be moved out of the quarry." S14 at 4. He described the manner in which the miners crossed from the path to the bottom ledge
by saying ''they cross the ledge, there at the bottom. It (sic) ledge was about 2 foot (sic) wide.
We were in the process of building a bride (sic) for them to cross." When asked "they must step
from one ledge to the other then up the ladder to the working area?" he responded "yes that is
right." He identified the route taken in photograph S-14 pg 10 which is identical to S-1 pg 4
identified by Inspector Mayer as the unsafe means of passage. He reasoned that they "did have to
step a little be (sic) not far." S-14 at 4. He explained that they had been working on a bridge but
it had not been completed. "The guys had maybe cross (sic) the ledge 10 or 12 times ... We didn't
think it was excessive ... We were trying to get production so we could stay in business." S-14 at
5. Mr. Mize estimated the depth of the water in the quarry to be two or three feet deep. "If they
fell it would be enough to break the fall but not enough to drown them," he said. S-14 at 7.
Mize signed the written statement prepared by Inspector Mitchell averring it to be a true and
accurate statement of the facts.
Clayborn Lewis gave differing accounts of the situation as well. Inspector Mayer testified
that on the day of the inspection, Lewis told him that there had been one ladder that he placed
across the comer between the two ledges. The men had used the ladder to cross in the morning
and then Lewis had the ladder removed. He pointed out the ladder to Inspector Mayer at the time.
Tr. 28-31 and photograph S-1 pg. 5. Lewis testified at the hearing that the miners working for·
Mize were highly experienced with approximately 120 years of experience among them inferring
that for them, the means of access was not unsafe. He also stated that the men had safety

33 FMSHRC Page 892

harnesses and could have put them on within a reasonable amount of time. Tr. 164-165. Lewis
was also interviewed by Special Investigator Mitchell on April 14, 2009. His statement was
reduced to writing and was signed by him attesting that it was true and accurate. S-15. When
asked whether he believed the men had safe access to their work area, he answered in the
affirmative. He further explained that on the day of the inspection, the men had already started to
work but when they crossed the ledges to access the working ledge, there were two ladders - one
on each side of the comer. They climbed down one ladder, walked across the quarry floor and
climbed up the other one. The two ladders were then removed at his direction. He said he was
then going to have the crane operator put in a longer ladder but before he could accomplish this,
the inspector arrived. (Presumably this is the same ladder he showed Inspector Mayer and that he
said the miners had used that morning.) He added that the miners used the two- ladders means of
access for two days. S-15 pgs 4-5. Mr. Lewis stated that the miners never crossed the ledge in
the manner described by Mayer. S-15 at 5. He estimated the depth of the water to be about 1 Yi
feet in the quarry floor. S-15 at 6.
The two miners in question were also interviewed by the special investigator. Their
statements were also reduced to writing; however, in order to protect their identity, all personal
information was redacted. S-15 and S-16. It is evident from the orders and citations written and
the questions asked of the miners that the two interviewed were Anthony Pass and Gary Almond.
Gary Almond told Mitchell that he and Pass had been crossing the comer between the
two ledges for approximately four days to one week without a ladder or bridge. He would cross
in the morning, go out and come back at lunch time, and would again cross at the end of the day.
He stated that there were never any ladders on either side of the ledge provided as an alternate
way of c..-rossing the comer. He did request that the foreman build something to go across the
comer or provide another way to get there. That is when Lewis began construction of the.bridge
that was later installed. He stated that he was sure Mize and Lewis were well aware of how they
were getting a~ross the comer as there was no other way to get there. Mize also would stand on
the top ledge of the mine and look down to where they were working. Almond estimated the
depth of the Water to be about 1 Yi feet deep due to being pumped regularly. He described the
water as being shallow enough to walk through. S-16.
Anthony Pass confirmed, when asked by Investigator Mitchell, that they crossed the
ledges at the comer without the use of a ladder or bridge. He also estimated the condition had
been present for about one week. Like Almond, he was sure Mize and Lewis were aware of the
situation as there was no other way to access the working ledge. He did recall that when the
weather was dry and there was no water in the bottom of the quarry, they could climb down one
ladder and up another. But most of the time there was water in the pit due to the amount of rain
they had so they had to climb around the comer in the manner described by Mayer. He estimated
the path to be just wide enough to get by carrying a small cooler and the depth of the water to be
three or four feet. He also asked the foreman to put something in place at the comer to cross. S17.

33 FMSHRC Page 893

Both miners stated that they did not use fall protection gear when traveling to and from
the working ledge. It was issued to them but they kept it on the working ledge rather than tote it
back and forth. S-16 and 17. Mr. Lewis stated to Investigator Mitchell that the miners did not
wear fall protection to cross the comer between the ledges because it was not necessary; they had
the ladders to use. S-15 at 5.
Based upon the evidence presented, I find that Mize violated the safe access standard.
The photographs alone submitted by the Secretary, S-1 pgs 4 and 6, and S-3 pgs 3, 6 and 7, very
clearly show the violative condition on the day of the inspection. They depict what was
accurately described by Inspector Mayer as a path being approximately two feet wide with an
uneven surface littered with rocks and other debris. Also evident from the photographs is that
the quarry floor, which is approximately eight feet below the ledge, had water and rocks in it on
the day of the inspection. This comports with the miners' statements that they had been
accessing the bottom ledges as described by Mayer because the rain prevented them from using
the two ladders as alleged by Lewis. Also evident in the photographs is the path between the
ledges that is so narrow that the men had to tum sideways to inch across. There is no question
that crossing the comer section between the ledges in this manner as described by Mayer as
"skimming across" was unsafe. It presented a situation where a "reasonably prudent person
familiar with the factual circumstances surrounding the alleged hazardous condition, including
any facts peculiar to the mining industry, would recognize a hazard warranting corrective action."
Alabama By-Products Corp., at 2130.
I find Lewis' assertions that the miners were provided with a safe means of access to be
unsupported by the evidence. First, I find his statements to Mayer and Mitchell that the miners
had either one ladder across the comer or two ladders down to the quarry floor and back up to the
other ledge on the day of the inspection to be less than .credible. Both miners stated to Mitche11
that they had been accessing the working ledge by crossing the comer without a bridge or.ladder
of any sort for days. Moreover, Robert Mize confirmed this information in his statement to
Mitchell adding that it was just 10 or 12 times which they didn't think was "excessive." They
were trying to get production out to stay in business and the water, after all, was only a few feet
deep which would be enough to break their fall but not drown them. Also, Lewis told Mayer
that he had the ladder removed with a crane before the blasting. Mayer testified he was on the
site at the time of the blast and did not hear the crane being used. Tr. 29. Second, although an
operator does not have to assure that every conceivable route to a working place is safe, none of
the alternative means Lewis alleged were available, such as fall protection or the ladders, to
provide safe access.
With respect to the use of fall protection, the miners had to walk along a 45 foot long
path, cross a comer section and walk along a second ledge to reach the ladder that brought them
to the working ledge. Fall protection is not effective unless it can be tied off to an immoveable
object to anchor the miner. Under the given circumstances, a safety harness would not be
practical or even possible to use. It is apparent that Inspector Mayer did not consider the use of
fall protection to be the appropriate means by which to make access to the ledge safe either as he
did not write the citation as a violation of section 56.15005 requiring the use of safety belts and
33 FMSHRC Page 894

lines . He abated the citation when the bridge was installed. Lewis also clearly recognized a
more substantial means of access was needed to ensure the miners' safety as he began
construction of the bridge when the two miners requested a safer way to cross the bottom ledge.
(Lewis' suggestion that they had fall protection that could have used if they had wanted to, also
underscores the lack of enforcement in the use of fall protection as discussed below.)
fuspector Mayer was shown the ladder that Lewis told him was in place on the morning
of the inspection when the workers crossed to the work site. Although the miners both denied
using this ladder, even if it were to be believed, I accept the testimony of Mayer that it would not
have been safe either. Walking across the ladder would require stepping on the edge of each of
the stairs avoiding the gaps in between them. It would also require a tremendous amount of
balance in doing so as the edge of the rungs appear to be about two inches wide and set on a
slant. There is no handrail on either side of the ladder to assist in maintaining ones footing. S-1
at 5.
The use ofladders to climb down into the quarry floor and back out onto the other ledge
may have offered the most reasonable means of travel under certain conditions. However, there
is no evidence that this means of access had been provided to the miners for at least four days
and possibly as long as one week due to weather conditions. If the ladders had been in place on
the day of the inspection as Le\\tis told Investigator Mitchell, there would have been-additional
hazards posed by their use as there was water in the quarry floor which would have obscured the
rocks and debris below creating the potential for trips and falls. Pass confirmed that there was
water in the pit most of the time and they had not used the two ladders in about one week as a
result. Additionally, the ladder shown to Mayer by Lewis lacked handrails which would have
lead to another safety violation. thus I find that this alternate means of travel would not have
provided the miners safe access during the period Mayer determined the condition to have
existed, which was actually on the conservative side at two days. Furthermore, the regulation
requires that the safe means of access be maintained which is an ongoing responsibility to ensure
safe means of access are used as "opposed to a purely passive approach in which the operator
initially provides safe access and then has no further obligation." Lopke Quarries, Inc., 23
FMSHRC 705, 708-(July 2001).

Significant and Substantial
Inspector Mayer found this violation to be significant and substantial ("S&S"). A
significant and substantial violation is described in section 104(d)(l) of the Act, 30 U.S.C.
§814(d)(l), 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 Division, National Gypsum Co., 3 FMSHRC 822,·825 (April
1981).

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out four
33 FMSHRC Page 895

criteria that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v . .
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861F.2d99, 10304 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021(December1987)(approving
Mathies criteria). Evaluation of the criteria is made in terms of"continued normal mining
operations." US. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574(July1984). 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 (April 1988); Youghiogheny &
Ohio Coal Co., 9 FMS.HRC 2007(December1987).
In order to prove that a violation is S&S, the Secretary must establish: (1) the underlying
violation of a safety standard; (2) a distinct 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 will be of a reasonably serious
nature. Mathies, 6 FMSHRC at 3-4.
With regard to this violation, I have already found that a safety standard has been
violated. The inspector testified that "skimming across" the comer between the two slippery and
littered ledges created a hazard of slipping, tripping and falling from a height of eight feet to the
quarry floor which was filled with water and rocks. Thus, the violation - lack of safe access to
the working ledge-<;reated a distinct safety hazard satisfying the second prong of the Mathies
criteria. Mayer felt it reasonably likely that such an accident would occur and that the resulting
injuries would be a fatality. Tr. 30. Common sense, as well as the inspector's testimony,
indicates that a fall from the elevated ledge to the quarry floor would result in a reasonably
serious injury, if not death. Consequently, I conclude that this violation was S&S.
Unwarrantable Failure
The <?itation alleges that the violation resulted from the company's unwarrantable failure
to comply with the standard. The Commission has held that an unwarrantable failure is
aggravated conduct constituting more than ordinary negligence by a mine operator in relation to a
violation of the Act. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Decen1ber 1987);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (December 1987). Unwarrantable
failure is characterized by such conduct as "reckless disregard," "intentional misconduct,"
"indifference" or a "serious lack of reasonable care." Emery at 2003-04; Rochester & Pittsburgh
Coal Corp. 13 FMSHRC 189, 193-94 (February 1991) and Wyoming Fuel Co., 16 FMSHRC
1618, 1627 (August 1994); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th
Cir. 1995) (approving Commission's unwarrantable failure test).
The Commission has established several factors as being determinative of whether a
violation is unwarrantable:
[T]he extent of a violative condition, the length of time it has existed, whether the
violation is obvious, or poses a high degree of danger, whether the operator has been

33 FMSHRC Page 896

placed on notice that greater efforts are necessary for compliance, and the operator's
efforts in abating the violative condition. Mullins & Sons Coal Co., 16 FMSHRC 192,
195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland
Coals, Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596,
1603 (July 1984); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992);
Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129 (July 1992). The Commission has
also examined the operator's knowledge of the existence of the dangerous condition.
E.g., Cyprus Pla~eau Mining Corp., 16 FMSHRC 1604, 1608 (Aug. 1994) (affirming
unwarrantable failure determination where operator aware of brake malfunction failed to
remedy problem); Warren Steen, 14 FMSHRC at 1126-27 (knowledge of hazard and
failure to take adequate precautionary measures support unwarrantable determination).

Cyprus Emerald Resources Corp., 20 FMSHRC 790, 813 (August 1998).
Mayer testified that he assessed this violation as unwarrantable failure because
management knew the miners were crossing the ledge without safe means and allowed it to exist
for more than one shift. Tr. 30. Based upon the statements of Mize and the two miners involved,
the condition actually existed for at least two days and as many as four days. Mize and Lewis
were fully aware of the situation as the uncontroverted evidence established that both men stood
on the top ledge of the quarry to look down upon the workers each day. The bottom ledge is
fully visible from the top ledge, as Mize, Lewis and Mayer wm-e standing on the top ledge when
Mayer saw the condition and issued this citation. Robert Mize also confirmed his knowledge of
the situation in his statement to Investigator Mitchell when he said the miners had to cross the
ledges absent other means about 10 to 12 times. If the miners generally crossed twice a day that
would mean the condition existed for five or six days. Lewis was responsible for the condition
existing in the first instance. In this very small operation, by his own account, he is the one
responsible for directing the workers, conducting the work place examinations, conducting preshi:ft checks, providing training and safety briefings and overseeing production. If Lewis is to be
believed, he also the one who removed the two ladders from the bottom ledge, removing with
them any degree of safety they afforded.
Lewis tendered the testimony that he had been building a bridge to provide a safe means
of access across the bottom ledge in defense of this violation. He testified that he was the only
one with the skills to build the bridge and his regular duties in the mine interfered with its
completion. I do not consider this an adequate attempt to take precautionary measures or to
lessen the degree of negligence involved. Had he or Robert Mize ordered a cessation in
production until the bridge was completed and installed, it would be a very different matter.
However, as Robert Mize told Investigator Mitchell, they had to keep production up and it was
not an excessive risk to let the miners cross the ledges this way for several days. The callous and
reckless disregard for the safety of the miners is sufficient for me to determine that this violation
was correctly and justifiably assessed as unwarrantable failure to comply with the standard.

2. Order No. 6507103 and Citation No. 6507104 (S-2 and S-3)

33 FMSHRC Page 897

This section 107(a) order and section 104(a)8 citation contain identical language and are
issued in violation of 30 C.F.R. §56.15005. They allege:

An employee was riot wearing fall protection while working within 1 foot of the edge at
the first ledge from the bottom in the southeast corner of the quarry. The ledge was wet
and covered with loose material and is approximately 8 ft. in height from the quarry floor
which is filled with water. This condition exposed the employee to injuries from falling
and drowning.
The citation and order were issued on January 13, 2009 during fuspector Mayer's ..walk
and talk" as set forth above. The citation alleges a gravity of"highly likely" to result in a fatality
from a violation that is S&S affecting one person. Mayer found moderate negligence and abated
the citation when the miner was removed from the ledge and retrained on the proper use of fall
protection. The proposed penalty is $2,976.00.

The Violation
30 C.F.R. § 56.15005, provides that "safety belts and lines shall be worn when persons
work where there is a danger of falling." The reasonably prudent person test for this standard is
"whether an informed, reasonably prudent person would recognize a.danger of falling warranting
the wearing of safety belts and lines. "Secretary ofLabor v. Great Western Electric Company, 5
FMSHRC 840, 842 (May 1983). Under 30 C.F.R. § 77.171 O(g), a standard similar to 30 C.F.R. §
56.15005, the Commission also explained that the standard must "give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. a
Secretary ofLabor v. Lanham Coal Co., 13 FMSHRC 1341, 1343 (September 1991).
The operator's position with respect to this citation and order is that Lewis was in the
process of abating the first citation issued by Mayer when this occurred. Mayer had only given
Lewis 30 seconds in which to instruct the miner to don his personal protective equipment
("PPE"). Had Lewis been given a reasonable amount of time to respond to the situation, he
would have instructed the employee to put on the gear. Ifthe inspector had been in a "more
reasonable frame of mind" he could have allowed Lewis to correct the situation without issuing a
citation. Tr. 43-44. Furthermore, Lewis testified that as the foreman, he is responsible for the
s Sec. l 04(a) states: If, upon inspection or investigation, the Secretary or his authorized

representative believes that an operator of a coal or other mine subject to this Act has violated this Act,
or any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this Act, he
shall, with reasonable promptness, issue a citation to the operator. Each citation shall be in writing and
shall describe with particularity the nature of the violation, including a reference to the provision of the
Act, standard, rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a
reasonable time for the abatement of the violation. The requirement for the issuance of a citation with
reasonable promptness shall not be a jurisdictional prerequisite to the enforcement of any provision of
this Act.
33 FMSHRC Page 898

safety program at the· quarry and it is required that safety harnesses be utilized. He gives safety
talks weekly to remind the workers to use them. At times they do not wear them but Lewis
"stay(s) after them as much as possible." There had never been an accident in the past seven or
eight years. Additionally, the men, he said, had the safety harnesses with them when they came to
put the bridge in place but hadn't put them on. Tr. 161-163, 165-166. Lewis did admit in his
statement to Mitchell regarding the later fall protection order issued by Cohen that he doesn't
"stand over his men and watch them." S-15. Mize told Mitchell that he also forgets to use the
fall protection equipment at times. S-14.
When Pass and Almond were interviewed by Investigator Mitchell with respect to this
citation, they both stated that they had safety harnesses issued to them and that Lewis does
remind them to use them. They confirmed that they do so when needed. S-16 and 17.
I find the Secretary has proven by a preponderance of the evidence that this standard was violat
the order and citation are affirmed. There is no question that working within one foot of a ledge eight J
above the quarry floor which is filled with water and rocks would put any reasonably prudent person 01
notice that there is a danger of falling warranting the use of a safety harness and line. There is also no
question that the violation oc~urred. The evidence of record is that Mayer and Lewis were watching th
miner for 30 seconds while he was working on.the ledge without wearing fall protection. There is no
requirement that Mayer give the foreman a certain amount of time in which to correct the miner's vioh
conduct before issuing the order or citation. A falJ with dire consequences could oc~ur in far less than
seconds. Had Mayer waited any longer, he too would have been negligent in the protection of the mirn
And while it may be true that Mayer had the discretion to correct the violation without issuing a citatio:
· is also no dispute that he had the right to issue them. Furthermore, in view of the fact that this conditio1
·because Lewis was abating an unsafe condition Mize had just been cited for that day, Lewis should hm1
on high alert to ensure the miner was following safety protocol. His failure to immediately recognize a
correct the situation without prompting indicates that it probably was not unusual for the miners to wor
the ledges without harnesses and that Lewis is not as diligent in enforcing the safety progran1 as he clai
any event, the standard requires strict adherence to the standard and regardless of whether there was a s
rule in effect at the mine or whether the miner was at fault for ignoring it, the standard was clearly viol;
and Mize is strictly liable. Mar-Land Industrial Contracior, Inc., 14 FMSHRC 754 (May 1992); Soui
Ohio Coal Company, 4 FMSHRC 1459; citing El Paso Rock Quarries, Inc., 3 FMSHRC 35 (Jan. 1981

Significant and Substantiaf
The Secretary has also established by a preponderance of the evidence that the Mathies
criteria have been satisfied. Inspector Mayer credibly testified that he assessed this citation as
S&S because the ledge was cluttered with loose material, it was prone to being wet and slippery
and was sufficiently elevated to pose a discrete danger of falling to the quarry floor below.
Because the miner was using a jackhammer which causes severe vibrations, the likelihood of his
losing his balance and slipping or tripping and falling over the edge was even more likely. Tr.
9

The requirements for S&S as set for the above in the discussion of Citation 650710 apply
hereinafter.

33 FMSHRC Page 899

34-35. Should a fall occur it would likely result in a fatality, or at least broken bones and
contusions due to the height of the ledge and presence ofrocks and water in the quarry floor. I
find the gravity of this violation to be very serious.

Negligence
This violation was assessed as moderate. Moderate negligence means that the operator
knew or should have known of the violative condition or practice, but there are some mitigating
circumstances. "Mitigating circumstances may include, but are not limited to, actions which an
operator has taken to prevent, correct, or limit exposure to mine hazards." See 30 C.F.R.
§100.3(d)(Table VIIl)(2007).
In Mayer's opinion, Lewis was negligent in failing to instruct the miner to utilize PPE.
However, -Inspector Mayer assessed his negligence as moderate as he found Lewis' efforts to
correct the condition as he (Mayer) pointed it out, mitigating. Tr. 36.
There is no question the foreman's negligence is imputable to the operator in this case.
See Nacco Mining Co., 3 FMSHRC 848 (April 1981). The Commission has stated that to find
the operator negligent where a rank and file miner engages in negligent violative conduct, there
must be a finding that the operator has taken reasonable steps to prevent that violative conduct.
See Whayne Supply Co., 19 FMSHRC 447 (March 1997); Nacco Mining Co., Supra; and
Southern Ohio Coal Co., 4 FMSHRC 1459 (Aug. 1982) (SOCCO). The "operator's supervision,
training and disciplining of its employees must be examined" to make this determination. Nacco
at 850-851. In Southwestern Illinois Coal Corp:, 4 FMSHRC 610(May1985)(Southwestern II),
the operator's 100% fall protection use and tie-off safety policy was made known to the miners
through written rules, a training seminar and annual refreshef training. In addition they had a
disciplinary system in which a first offense for failure to wear fall protection resulted in _a
personnel action warning with progressive forms of discipline for each additional violation.
However, the operator left the decision to wear the belts largely to the miners which was
determined to be an insufficient policy lacking in enforcement. Southwestern II at 613.
I find the facts in this case to be somewhat like those in Southwestern II in that Lewis
testified that he did have a PPE policy and provided weekly training to the miners reminding
them to wear their harnesses. This was confirmed by both miners in their statements to
Investigator Mitchell. However, it does not appear that the company has a written policy,
warning signs, or annual refresher training. It is also clear that the policy was not actively
enforced at the quarry through disciplinary measures, inspections or otherwise. Furthermore,
Lewis testified that he was in the process of moving the bridge so he was otherwise engaged in
something else at the time. Tr. 44. The fact that the foreman was busy and was not paying
attention does not lessen his responsibilities to the miners to protect them. He is the agent of the
operator entrusted with ensuring the miners follow all safety protocols. The miner was working
with Lewis under his direction and supervision installing the bridge. Lewis should have given
this project his undivided attention. Particularly, since he was abating a previously issued citation

33 FMSHRC Page 900

and the inspector was watching the work being performed.
The conditions found during this inspection are striking examples of the company's lack
of enforcement or concern for safety. Lewis and Mize both exhibited a rather unconcerned
attitude towards the miners' not wearing their PPE when questioned by Investigator Mitchell.
Their response was simply that they didn't know why they were not wearing it. Mize said he
sometimes forgets too. Lewis stated "I don't stand over my men and watch them." S-15. Both
miners, in their statements indicated that they leave their gear on the working ledge at the top
ledge of the mine rather than carry it back and forth with them. Almond said that it is given to
them to wear and they are supposed to use it and do so when needed. S-16. The miners are
apparently left to decide when to use it. This all serves to portray a very passive, if not
completely unconcerned, attitude on the part of the company towards the use of PPE.
In sum, I find the operator was moderately negligent in not taking reasonable steps to
adequately supervise, train and discipline the miners to ensure the miners used their PPE to
prevent this violation. I support Inspector Mayer's opinion that Lewis' effort to correct the miner
when prompted is a mitigating factor.

3. Order No. 6505708 and Order No.6505709 (S-4 and S-5)
This imminent danger Section 107(a). order and Section 104(d)(l) order were written for a
violation of30 C.F.R §56.15005. The citation, which incorporates the language of the order,
reads as follows:
Anthony Pass and Gary Almond (Ledge l\t1en) were not wearing fall protection while
operating a pneumatic drill approx. 3' .from the quarry working ledge. Both men were
exposed to a fatal fall approx. 40' to the granite quarry floor. Fall protection was
available at the working ledge. Clayborn Lewis (Foreman) and Robert MiZe III (Owner)
both engaged in aggravated conduct constituting more than ordinary negligence in that
they were both observing the (2) ledge men operate the pneumatic drill approx. 3' form
the quarry ledge while not wearing fall protection. This violation is an unwarrantable
failure to comply with a mandatory standard.
Inspector Cohen issued these orders dated March 22, 2009, during his March 11-12, 2009
regular inspection. He designated the citation as highly likely to result in a fatal injury affecting
two persons resulting from the operator's reckless disregard for their safety. It is alleged as S&S
as well. The proposed penalty is $35,543.

The Violation
The same standard and discussion previously addressed in Citation No. 6507104 applies
and will not be repeated here.

33 FMSHRC Page 901

Mize offered no testimony specifically addressing this violation except as is set forth
above with regard to their company safety policy. They did not deny the facts as alleged in the
citation. In Robert Mize's statement given to Investigator Mitchell, he identified the photograph
of the ledge in question, S-5 pg 3 and S-14 pg 14. He said the men were just getting ready to
start back to work after the shot had been made to blast the rock. When asked why the men did
not have on their PPE, he responded "they had forgotten to put it on, even I do that sometimes."
When questioned who would have been responsible for making sure the miners were using their
PPE, he said, "I guess it was Lewis but I can't blame him for this. I was there also. I was paying
more attention to them pulling blocks, I guess. Ultimately I guess it is me anyway isn't it." S-14
pg 6. Lewis told Mitchell that the men were squaring up the block and preparing them to be
taken out. He said Mize and he were standing on the quarry wall discussing the removal of the
blocks and didn't really see the men standing on the edge. That is when he made the statement
that he doesn't stand over his men and watch them because he doesn't want to make them
nervous. He also did not know why they were not wearing their gear. S-15 pgs 7-8.
Ledge man Almond told Investigator Mitchell that he was not wearing fall protection
because the two of them had worked their way down to the bottom of the quarry and were
working at an elevation of two feet where the PPE was not needed. S-16. Inspector Cohen,
however, saw the miners when he arrived on the property working on a ledge that was 40' high.
He took a photograph of where the violation took place which clearly is not a ledge two feet off
the ground. Jt may be that Almond was confused as to what point in time Mitchell was
l
questioning him about and that he was unaware that he had been observed by Cohen at an earlier
moment, when he made this statement. I accord Cohen's testimony regarding this violation
greater weight.
Based upon the strict liability enforcement provisions of the Act as discussed above, I
find Mize did commit the violation as alleged and the orders are affirmed.
Significant and Substantial

Inspector Cohen testified that he assessed this violation as S&S because the ledge was 40'
above the bottom ledge of the quarry. The men were operating a rotary drill Gackhammer),
which vibrates violently, while standing within three feet of the edge. In his opinion, fall
protection is needed when working within six feet of the edge because that is the average height
of a man. Presumably this would make a trip and fall from that distance likely to result in a fall
over the edge. If a fall from the height occurred, it was reasonably likely that the resulting
injuries would be fatal. Tr. 63-67. I agree and find this violation is S&S.
Unwarrantable Failure10

Inspector Cohen testified that he observed the condition described in the citation himself
10

The requirement for unwarrantable failure as set forth above in discussion of Citation No.
6507102, applies hereinafter.

33 FMSHRC Page 902

while standing at the top of the quarry some 30' above the miners. With him were Lewis and
Mize who had both been on the top ledge for some time looking down at the workers when
Cohen arrived on the scene. Tr. 66. He characterized the violation as unwarrantable based upon
the fact that this was an obvious condition, clearly known to management and because neither
Lewis nor Mize took any action to correct the hazard until Cohen ordered them to do so. Tr. 6768. For this reason, the inspector marked the level of negligence as reckless disregard.
Upon reviewing the factors set forth in Cyprus Emerald Resources Corp., Supra , I find this
violation to be an unwarrantable failure to exercise due care in safeguarding the two miners
working on the ledge. I come to this conclusion based upon the same analysis as set forth in the
discussion of Citation No. 6507102 herein. Both Mize and Lewis watched the miners perform
their work on a ledge 40' above the quarry floor without taking safety precautions. Neither man
really noticed that the workers were doing this for the past two days because they were too busy
discussing production. S-14. Essentially, they just didn't care so long as the blocks were being
sized and removed from the quarry. Compounding the shocking disregard for the safety of the
miners is that fact that this situation took place just two months after Inspector Mayer issued his
orders and citations for the same lack of safety enforcement at this mine. Obviously, not only did
Mayer's orders and citations not put Mize and Lewis on notice that greater efforts at compliance
were necessary, but it had absolutely no effect on them what-so-ever so long as production was
occurring. I can only describe their conduct, both individually and in concert, as egregious.

4. Citation No. 6505710 (S-6)
In.~ector Cohen issued this Section 104(a) citation on March 11, 2009 alleging:

The tool rest gap on the Delta 1O" bench grinder measured appx.(sic) %"from the tool
rest to the grinding wheel. The bench grinder is used daily to sharpen the plug drill bits.
This condition exposed miners to cuts and abrasions to the fingers and hand from the
sharpened material falling between the tool rest and the grinding wheel. Adjustable tool
rest (sic) shall be set so that the distance between the grinding surface of the wheel and
the tool rest is not greater than 1/8 inch. 30 cfr (sic) standard 56.14115(b) has been
issued (1) time in a past inspection.
Cohen designated the gravity as reasonably likely to result in lost workdays or restricted
duty, S&S and affection one person. He characterized the negligence as moderate. The proposed
penalty is $362.
The Violation
30 CF.R. §56.14115(b) provides an adjustable tool rest be set so that the distance
between the grinding surface of the wheel and the tool rest in not greater than 118 inch. Mize
does not challenge the alleged violation but does the gravity of the violation. I, therefore find that
the violation has been established by a preponderance of the evidence presented.

33 FMSHRC Page 903

Significant and Substantial .
Inspector Cohen testified that because the gap between the wheel and the rest exceeded
the required 1/8 inch, it is reasonably likely that whatever is being grinded could fall between the
wheel and the rest which would pull a hand against the grinding wheel. This would likely result
in cuts and abrasions to the hand and fingers. Tr. 69-70. The grinder is used daily at Mize to
sharpen the drill bits. Tr. 68. Mize established through cross-examination of Inspector Cohen
that the drill bits that are sharpened on the grinder exceed 118 inch, in fact they measure from 3/4
inch to 1 inch in diameter. Tr. 105-106. The following exchange took place between Mr. Mize
and Inspector Cohen with regard to the likelihood of an injury occurring as a result of this violatio1
Mize: Do you know what size most of the drill bits are:
Cohen: They range anywhere from three-quarter and larger, I think.
Mize: So the smallest one you know of is three-quarters an (sic) inch?
Cohen: Yes, sir.
Mize: So three-quarters of an inch cannot go into one-eighth of an inch, can it?
Cohen: No.
Mize: So it wouldn't be possible for the-for that to happen as you mentioned
about the - you mentioned that the-the possibility of someone being injured would be-the
way they're being injured was - is whatever you were drilling would fall in between that
-between the grinder and the little rest?
Cohen: That's correct.
Mize: So three-quarters of an inch would be impossible to fall into an eighth,
would it not?
Cohen: .I'm not gonna say impossible. It would be likely- unlikely, yes.
Mize: Well, I don't think I could stick it through there. Could you?
Cohen: Probably not.

Based upon the admission of Inspector Cohen that it would be unlikely, if not impossible,
for the size of drill bits used by Mize to result in the type of injury cited, I find the Secretary has
not met her burden of proving that this violation was S&S. The gravity of this violation is
''unlikely" and non-significant and substantial. I will adjust the penalty accordingly.

Negligence
Inspector Cohen assigned moderate negligence to this citation because he found Lewis
credible when he said he was unaware that the gap between the wheel and the rest exceeded the
required measurement. Tr. 71. I fmd that based upon Lewis' being unaware of the condition
and upon the fact that there is very little likelihood that it would cause an injury, that the
negligence should be reduced to low.

5. Citation No. 6505711 (S-7)

33 FMSHRC Page 904

fuspector Cohen issued this Section 104(b) citation on March 11, 2009 for failing
to properly store oxygen cylinders. The citation reads as· follows:
A compressed oxygen cylinder was found stored at the east end of the quarry with the
valve not protected by a cover. This condition exposed miners to serious injuries
resulting from a broken valve releasing stored energy inside the compressed cylinder.
Valves on compressed gas cylinders shall be protected by covers when being transported
or stored and by a safe location when the cylinders are in use.

Cohen designated this violation as unlikely to result in an injury to one person and not
S&S. However, the nature of an injury would be fatal and the result of high negligence. The
proposed penalty is $807.00

The Violation
Cohen testified that the valve cap on one cylinder located near a crane was missing. The
cylinder missing one cap was being stored in an upright position and was secured to a handrail
and is pictured in S-7 pg 4. Tr. 73-74. Mize did not offer any evidence to challenge this citation.
The violation has been established.

Negligence
High negligence means that the operator knew or should have known of the condition and
took no action to correct, prevent or limit the exposure to the hazard. 30 C.F.R. §100.3(d).
Lewis told Cohen when he found this condition that the tank had been uncapped for two days.
For an injury to occur from this hazard the cylinder would have to either fall over and break the
valve off or something would have to fall on top of the valve and break it off. That would tum
the tank into a projectile. Tr. 73-74. He also stated that the cylinder had not been used on the day
of the inspection but had been in use in the previous couple of days. Tr. 72. The manner in
which they were secured to the handrail was proper and the fact that it was in an upright position
made it unlikely that an injury would occur. Tr. 73. Cohen felt the negligence was high
primarily due to the fact that the condition had been allowed to exist for two days according to
Lewis. He found no mitigating circumstances.
No evidence was presented by the Secretary to establish whether the condition would
have been discovered on a pre-shift examination before the cylinder was used again. There was
also no evidence presented as to how the cylinder would fall or be struck by an object in such a
way as to break off the valve when it was properly secured to a handrail at the top of the quarry.
Cohen did state that there was oxygen in the tank but did not say how much was in it or how
much pressure would be required to turn the tank into a projectile if the valve were broken off. I
find that absent this information, it cannot be established that the negligence was high. I find that
the fact that the tanks were properly stored in an upright position making the occurrence of an

33 FMSHRC Page 905

injury unlikely

to be a mitigating circumstance and find the negligence to be moderate.

6. Citation No. 6505712 (S-8)
This citation was issued by Inspector Cohen on March 11, 2009 and states:
The hoist hook on the Manitowoc 3900T Crawler Crane had a safety chain that was welded to
the hook. Also, the lifting dog chains have wore (Sic) down into the saddle of the hook apprx.
(sic)% inch. The average granite blocks being lifted from the quarry weigh appx. (sic) 20000
lbs. This condition exposed miners to serious injuries in the event the hoist hook broke and
dropped the lifted load. Defects on any equipment, machinery, and tools that affect safety shall
be corrected in a timely manner to prevent the creation ofa hazard to persons. 30 cfr (sic)
standard 56.14100(b) has been issued (2) times in past inspections.
The gravity of the violation was assessed as unlikely to cause an accident but would result
in fatal injuries, not S&S, affecting one person and the negligence as moderate. The proposed
penalty is $243.00

The Violation
The standard is set forth in the narrative portion of the citation. Cohen testified that the
hook had been welded at the tip area where a homemade safety latch had been added. In order to
properly weld a hook, the metal has to be heat treated, welded and then cooled down through a
specific method otherwise the metal can become brittle and break. Tr. 75 and 77. The saddle
area on the hook had been worn down by the dog chains. The grooves in the saddle were
approximately 3/4 of an inch deep which was reducing the strength of the hook which was used
several times per week to lift blocks weighing 20,000 pounds out of the quarry. Never had
Inspector Cohen seen grooves this deep worn into a hook. Tr. 75-76.
Cohen found an injury would be unlikely because Lewis told him the crane hook had
been in that same condition for two years. If it did fail, however, it could drop its load and strike
a miner. Tr. 78.
Mize elicited through cross-examination that the inspector did not know if in fact the
weld on the safety latch had been done in the proper manner or not. Tr. 108. Mize also
attempted to establish that the grooves in the saddle had been worn by cable rather than dog
chains as Cohen had never seen dog chains make indentations like those in the hook before. Tr.
109-111. I find the difference irrelevant.
I find that there is insufficient evidence presented by the Secretary to establish that the safety
latch was improperly welded onto the hook by the inspectors' own admission. I further find that
the Secretary provided no basis for the opinion that the strength of the hook was compromised by
the grooves in the saddle area particularly in light of the fact that the equipment had been used in

33 FMSHRC Page 906

that condition seveial times per week for two years lifting 10 ton blocks. The photograph
presented depicts a hook that is extremely large and sturdy. The grooves do not appear to be
particularly deep in comparison to the overall circumference of the hook. Ex. S-8 pg 4. There
was also no evidence presented how the condition would affect one person. I cannot presume
that the operator of the crane would be in a position to be injured if his load fell from the hook
below him. There was no evidence presented that once a block is attached by c(lble or dog chains
to the hoist, that there is anyone working below or anywhere near the hook who would be
affected if the block fell.. The Secretary has not met her burden of establishing this violation and
it is hereby Vacated.

7. Citation No. 6505713 (S-9)
lbis citation alleges a violation of Section 56.6132(a)(4) of 30 C.F.R, the narrative section
of which reads:

The inside of the blasting caps magazine door contained (4) metallic carriage headed
5/16" bolts that secured the interior wood to the door. The magazine is located at the
west end of the quarry and contained (25) 12' blasting caps. This condition exposed
miners to serious injuries in the event the contents inside the magazine explodes (sic).
Magazines shall be made of nonsparking material on the inside.
This violation was characterized as unlikely to cause injury, not S&S, of moderate
negligence affecting one person who would be fatally injured if an accident did occur. The
proposed penalty is $243.

The Violation
The sUµidard requires that magazines be made of nonsparking material on the inside. The
magazine, located within 100' of the parking area of the quarry contained metallic bolts on the
inside of the door. The head of the bolts were exposed but located sufficiently far from the
blasting caps stored therein to make an explosion unlikely. Tr. 79-81.
The parties stipulated that the magazine contained detonating charges capable of initiating
an explosion. S-19. Because this safety standard imposes liability without fault, I find that it
has been established and I find that the likelihood was appropriately assessed as unlikely.

The Negligence
Moderate negligence was assessed because Lewis told Cohen he was unaware that the bolts
were exposed on the door of the magazine. He is the only one with keys to the magazine so no
one else would have known of the violation. Tr. 81. It also follows, however, that Lewis must
have been the one to create the hazardous condition. There was no evidence presented as to how
long this condition existed, or how often Lewis would have opened the magazine or how recently
to determine what opportunity he had to remediate this condition. There is another magazine on
33 FMSHRC Page 907

the property which did not have the same condition. Tr. 82. Under these circumstances, I find
considerable mitigating circumstances to support the level of negligence as moderate.

8.. Order No. 6505714 (S-10)
This is the Section 104(d) order Inspector Cohen issued for the missing handrails along the
45' pathway located on the bottom ledge of the quarry where the bridge was eventually installed.
The narrative portion reads:
Approximately 45' of handrails was(sic) not provided next to the elevated walkway at the
south end of the quarry next to the wood bridge. The walkway is right beside the quarry
ledge and is appx. (sic) 2' to 3' wide. Miners use the walkway daily to access the current
working ledge. This condition exposed miners to fatal injuries from a fall of appx. (sic) 6'
to the water in the bottom of the quarry. The water is appx. (sic) 3' deep. Clayborn
Lewis (Foreman) engaged in aggravated conduct constituting more than ordinary
negligence in that he was aware the· handrails were not provided and allowed the miners
and himself (sic) to access the elevated walkway next to the south end quarry ledge. This
violation is an unwarrantable failure to comply with a mandatory standard.

The order cites the gravity as reasonably likely to produce a fatal injury, S&S, affecting
one person and the result of a high degree negligence and an unwarrantable failure. The
proposed penalty is $4,440.00.

The Violation
The mandatory standard provides in relevant part that elevated walkways shall be
provided with handrails, and maintained in good condition. 30 C.F.R. §56.11002. The Secretary
introduced photographs S-10 pg 4 - 8 which clearly depict the uneven, cluttered and narrow
elevated pathway lacking any type of handrail.
Mize contests the violation on two grounds. First, the condition had existed in January
and was not cited by Mayer when he made his inspection and issued the safe access citation in
the same area of the mine. Secondly, that the miners were supposed to take a different route that
was 12' from the edge. Tr. 167-168. Neither of these arguments is persuasive on the issue of
whether the mandatory standard was violated. The Secretary cannot be estopped from enforcing
her safety regulations and therefore Mize's first argument fails. See U.S. Steel Company, Inc.,
115 FMSHRC 1541 (Aug. 1993). As to the testimony by Lewis that the miners were supposed to
use a different route to access the working ledge, it is contradicted by his own statement to
Mitchell in which he confirmed the photographs accurately depict the walkway used by the
miners to travel to the working ledge. He further agreed that the pathway was approximately six
feet above the quarry floor and that it was worn down and had numerous trip, slip and fall
hazards on it. S-15. The statements given to Mitchell by Almond and Pass also contradict

33 FMSHRC Page 908

Lewis' testimony and support the observations of Inspector Cohen. S-16 and 17.

I therefore find based upon a preponderance of the evidence that the mandatory safety
standard has been violated.
Significant and Substantial

As previously stated, the bottom ledge was approximately six feet above the quarry floor
which could have anywhere from one to three feet of water in it depending upon the amount of
rainfall. The pathway was narrow and littered with all types of debris and loose rocks with
several elevation changes posing serious trip and fall hazards that could result in a fall onto the
floor below. There was a possibility of striking rocks or other objects on the quarry floor or
drowning if a fall occurred. Tr. 87-88. There is no doubt that the condition created a distinct
safety hazard with a reasonable likelihood that it would result in an injury if unabated and a
reasonable likelihood that the injury would be of a reasonably serious nature. This violation was
properly assessed as S&S.
Unwarrantable Failure
Cohen determined that this violation was also an unwarrantable failure to comply with
the mandatory standard because it had been allowed to exist for seven days uncorrected and it
was patently obvious to management. Tr. 87-88. He assigned high negligence to the violation for
these reasons.

I disagree with the inspector's assessment that this was an unwarrantable failure to
comply with the safety standard. While the length of time the violation existed and that
management was aware of the condition can be determinative factors in finding a violation is
unwarrantable, I do not find that alone is sufficient in this case to say the conduct of the operator
constituted more than ordinary, albeit high, negligence. As the Commission stated in Emery
Mining, Supra, if a finding that the operator knew, or should have known of the condition is the
basis for determining an unwarrantable failure, every ordinary negligence case would be
unwarrantable. There needs to be additional aggravating factors to elevate ordinary negligence
to the level of reckless disregard, intentional misconduct, indifference or a serious lack of
reasonable care. Such factors may be the length of time the condition existed, the extent of the
violation, the degree of danger posed or whether the operator was on notice that greater efforts
were necessary for compliance. Lopke Quarries Inc., Supra.

I found the violation in Citation No. 6505709 to be unwarrantable because there, the two
miners were operating a drill 40' above the quarry floor without fall protection. The vibrations
from the pneumatic drill coupled with the extreme height presented an extremely high degree of
danger. Further aggravating the situation was the fact that both Mize and Lewis were watching
this occur but were too busy discussing production to notice or care. The condition presented in
Citation No. 6507104 which I found to be an unwarrantable failure was aggravated by the fact

33 FMSHRC Page 909

that the miners had to cross between two ledges eight feet off the ground by walking sideways on
a 15" wide path for a distance of four feet. Management's attitude was that the miners were
sufficiently experienced to be able to accomplish this balancing act for the number of days that
the condition existed.
With respect to this violation, however, the situation is sufficiently different. The
inspector found that it was reasonably likely, not highly likely that a miner would trip on the
path, fall over the edge and down to the floor below. The path was two feet wide which is
sufficiently wide for someone to walk in a normal forward-facing manner. The miners were not
performing any work while traveling this route twice a day and there was nothing to divert their
attention along the way. The danger posed by this condition, therefore, was not of such grave
concern that a failure to address it constituted aggravated conduct. Although Mize's argument
that the condition had not been cited by Mayer in January is not a defense to the violation, it does
militate against a finding that Mize was on notice that greater efforts were necessary to comply
with the standard. Mayer conducted a thorough inspection of this bottom ledge area and issued
two citations and one imminent danger order. The condition of the pathway was the same then
as it was in March. Mize had at least some reasonable basis for their belief that the bottom ledge
was made safe when they abated Mayer's citations and order. The conduct of the operator here is
not reckless, intentional or so indifferent to find that it rises above ordinary neglect. I note also,
that Inspector Mayer assessed only moderate negligence on Citation No 6507104 when a miner
was operating a pneumatic drill within one foot of the edge on this bottom ledge without fall
protection. The gravity of that violation was highly likely and yet, he did not believe the conduct
of the operator in that more serious violation was unwarrantable, and I agree.
A finding of high negligence is supported by the evidence; the assessment of
unwarrantable failure is not. The penalty shall be adjusted accordingly.

9. Order No.6505715 (S-11)
This Section 104(d) order was issued for a violation of the safe access standard 30
C.F.R. §56.1101. The citation issued by Cohen states a set of stairs at the south end of the
quarry did not have a handrail. In order to step off the ladder the miners had to "twist
their bodies around the side of the stairs to access the ledge above" where there were
various trip and fall hazards. Tr. 89-91. This upper working ledge is elevated eight feet
above the quarry floor thereby necessitating fall protection to ensure safe access to the
work area.
Inspector Cohen designated this condition as S&S, an unwarrantable failure to
comply with the standard, reasonably likely to produce a fatal injury and the result of a
high degree of negligence. The proposed penalty is $4,440.00.
Mize offered no evidence to contest this violation. The Secretary offered
photographs of the condition. S-11pgs4 and 5. Interestingly, one photograph shows a

33 FMSHRC Page 910

second ladder in the background that does have handrails on both sides which indicates to
me that the. operator was well aware of the need for therri. S-11 pg 7. Based upon the
unchallenged testimony of the inspector and the photographs of the ladder and the
condition of the upper ledge, I find the violation has been substantiated.
Sif:Yificant and Substantial
Had this condition not been abated, it was reasonably likely that during the course
of continued normal mining operations a miner would trip and fall from a height of eight
feet thereby sustaining serious, if not fatal, injuries in Cohen's opinion. Tr. 90-92. Cohen
testified that management was aware of the condition and that Lewis had told him that he
used the ladder himself. Tr. 93. Cohen's notes indicate that Lewis informed him the
ladder was put into use in that location eight days prior to the inspection. S-11 pg 3.
Both Lewis and Mize informed Mitchell that the ledge was normally not cluttered
with loose rocks. Mize stated that they had blasted three or four days prior to the
inspection and had not gotten around to cleaning up the debris. S-14 and 15. The ladder
was tied off at the top and anchored at the bottom. The miners kept three-point contact
on the ladder at all times and the side on which they dismounted was clear of debris, Mize
said. S-14.
Almond and Pass told Investigator Mitchell that the ledge was typically cluttered.
Almond added that they never have time to clean it up because management always
wanted them to focus on production. S-16. Pass said that he would ')ust try to clean. a
little walk way'' to get through. S-17. These statements convince me that the condition
was not recently created and that one side. of the ledge was not kept clear of debris as
Mize stated if the miners had to clear their own path to make their way through to the
work area.
It is not difficult to imagine that a miner could lose his balance or misstep while
climbing the ladder. Without a handrail to grab onto, there would be a substantial
likelihood of falling. The risk of a miner losing his footing when twisting around the top
of a ladder, stepping onto the debris strewn ledge and falling, is also readily apparent. A
fall from a height of eight feet to a hard granite floor would cause serious (or fatal)
injuries. The Mathies criteria are satisfied.

Unwarrantable Failure
Cohen testified that he designated this violation as unwarrantable for the same
reasons he assessed it as S&S. Tr. 93. What convinces me that this was an
unwarrantable failure to comply with a mandatory standard, however, is found in his
notes. In them, he states that the handrails on this ladder had been missing for
approximately one month. The ladder had been in its current location for eight days at

33 FMSHRC Page 911

the time of the inspection and was used daily by the miners according to Lewis. S-11 pg.
3. This tells me two things. First, that the operator was aware of the need for the
handrails on the ladder. Secondly, that they had more than ample time to reinstall the
handrails to make this ladder safe before putting it into service and did not do so. The
comment by ledge man Almond, that he didn't have time to clear the ledge because
management wanted them concentrate on production underscores Mize's complete
indifference and reckless disregard for the safety of its miners.
10. Citation No. 6505716 (S-12)
This alleged violation was cited by Inspector Cohen on March 12, 2009. The
citation alleges:
The 1" air hose connections, for the plug drills and jack hammer, were not equipped with
a safety chain or other suitable locking device. The air tools are used daily at the current
working ledge. This condition exposed miners to cuts and abrasions to the bodyin the
event of a (sic) air hose connection failure.
It is assessed as reasonably likely to cause an injury resulting in lost workdays or

restricted duty, S&S and the result of moderate negligence by the operator. The proposed penalty
is $362.
The Violation

The standard, 30 C.F.R. §56.13021 provides "safety chains or other suitable locking
devices shall be used at connections to machines of high-pressure hose lines of Y4-inch inside
diameter or larger, and between high-pressure hose lines of%-inch inside diameter or larger,
where a connection failure would create a hazard."
Inspector Cohen found 1 inch diameter air hoses that connect to plug drills and
jackhammers that were missing locking connections. The working pressure of these air hoses is
120 psi. In the event of a connection failure, the air pressure would cause the hose to whip
around. producing cuts and abrasions to the miner operating the equipment as the connector is
close to the body when in use. S-12 pg 3 and Tr. 96-97. Both miners were operating the
jackhammer when Inspector Cohen arrived. They use these tools on a daily basis. Tr. 96. The
typical air hose is secured by pushing the hose coupling into the equipment coupling and twisting
it. A pin is then used to connect both couplings and prevent a connection failure. The pin,
however, was missing making it reasonably likely to result in a connection failure as described.
The inspector was familiar with the types of injuries caused by such a failure from having seen
and been involved in such an incident. Tr. 97.
Mize offered no evidence to contest this violation. I find, based upon the inspector's
testimony and notes that it has been established.
33 FMSHRC Page 912

Significant and Substantial
The tools in question are used daily in the quarry thereby increasing the likelihood of a
connection failure through repeated use. It would have been helpful if Inspector Cohen had
provided information regarding how many pounds of force is exerted by a connection failure of a
1" diameter hose at 120 psi or under what conditions a connector failure would occur. However,
I rely on the inspector's personal experience with this type of accident, and his training as an
MSHA inspector, as a credible basis for his opinion. I concur that under continued normal
mining operations, it is reasonably likely that this hazard would have resulted in cuts and
abrasions which would be reasonably serious in nature.

Negligence
Lewis told Cohen that he was unaware that there was not a locking device on these hoses
in mitigation of the violation. The ledge men set up and use these tools, not Lewis. Tr. 98. There
is no evidence of record as to how long the condition existed. Because Lewis is primarily
responsible for the safety of the miners and for making the pre-shift examinations of all
equipment and areas of the mine, he should have known of this condition. Based upon the overall
lack of concern for safety in the mine exhibited by Mize, it is likely that this condition was not a
recent development. Taking all of these factors into consideration, I conclude that this violation
was the result of moderate negligence.

11. Citation No. 6505717(8-13)
On March 12, 2009, Cohen issued this Section 56.12028 citation alleging that a
continuity and resistance test was not performed on the Sullair m compressor model #25-1 OOL
immediately after installation six weeks prior to this inspection. The gravity was marked as
unlikely to result in a fatal accident affecting one person with a moderate degree of negligence.
The proposed penalty is $190.00.

The Violation
The mandatory standard requires that continuity and resistance of grounding systems shall
be tested immediately after installation, repair and modification, and annually thereafter. 30
C.F.R. §56.12028.
Cohen testified that he was told by Lewis that this compressor had been installed six
weeks before the inspection. Therefore there should have been a report of a continuity and
resistance test done within that same time period. Tr. 100-101. Lewis testified that the
compressor had been installed six years ago and that Cohen misunderstood him. Tr. 168. Cohen
coirlinned that when he asked Lewis for the new report, Lewis provided him with the prior year's
annual test report. Tr. 102. Based upon these facts, it is impossible to find that the compressor
was only six weeks old when the test report in Lewis' possession for this very piece of equipment

33 FMSHRC Page 913

was dated one year earlier. The citation is Vacated.

III. Penalties
A. Penalties under Section llO(i) of the Act
The Mine Act 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 law 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 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(1).
The penalty assessment for a particular violation is within the 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), affd,
736 F.2d 1147 (7th Cir. 1984); Cantera Green, 22 FMSHRC 616, 620 (May2000).
The parties stipulated to facts which affect the assessment of penalties. They are that the
operator is a small mine reporting 10,042 annual hours of production in 2009, and that Mize
demonstrated good faith in abating the cited citations. The negligence and gravity of the
violations herein have been previously discussed. I find several of the penalty amounts proposed
by the Secretary to be out of proportion to the size of the mine and the facts presented.
Mize has raised the issue of an inability to remain in business if ordered to pay the
proposed penalties. Corporate tax returns for years 2007 through 2009 were provided and
considered. The Secretary argues that the tax records alone are not sufficient evidence of an
inability to continue in business under Spurlock Mining Co., Inc., 16 FMSHRC 697 (April
19914). Further she points out that Mize has increased the number of employees between 2007
and 2009 and has reported substantial receipts in each of these years. And, finally, that Mize has
been assessed $105,996.90 in penalties between 2001and2010 which have become final orders,
$99,710.90 of which are delinquent. Sec'y's Post Hearing Brief at 62-63.
I have considered the criteria in 1 lO(i) in view of the evidence of record in making my
findings herein. The following penalties well not affect the operator's ability to continue in
business and are appropriate under the Act:

33 FMSHRC Page 914

1. Citation No.

6507102

$4,440.00

2. Citation No.

6507104

$2,976.00

3. OrderNo.

6505709

$10,000.00

4. Citation No.

6505710

$100.00

5. Citation No.

6505711

$250.00

6. Citation No.

6505712

Vacated

7. Citation No.

6505713

$243.00

8. OrderNo.

6505714

$3,000.00

9. OrderNo.

6505715

$4,440.00

l 0. Citation No.

6505716

$362.00

11. Citation No.

6505717

Vacated

Total:

$25,811.00

B. Penalties under Section 110(c) of the Act
Section 110(c) of the Act which provides in relevant part that whenever a corporate
operator violates a mandatory health or safety standard or knowingly authorized, ordered, or
carried out such violation, failure, or refusal shall be subject to the same civil penalties, fines, and
imprisonment that maybe imposed upon a peison under subsections (a) and (d).
The Commission has interpreted the meaning of the word "knowingly'' as knowing or
having reason to know. "A person has reason to know when he has such information as would
lead a person exercising reasonable care to acquire knowledge of the fact in question or to infer
its existence." Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff'd on other grounds, 68 F.
2d 632 (6th Cir. 1982), cert denied, 461 U.S. 928 (1983). To clarify under what circumstances an
individual may be personally liable for penalties, the Commission stated "a corporate agent in a
position to protect einployee safety and health has acted 'knowingly,' in violation of section
110(c) when, based upon facts available to him, he either knew or had reason to know that a
violative condition or conduct would occur, but he failed to take appropriate preventative steps.''
Secretary ofLabor v. Roy Glenn agent of Climax Molybdenum Co., 6 FMRSHR 1583, 1586
(July 1984). The level of proof required of the Secretary to sustain personal liability is more than

33 FMSHRC Page 915

the assertion that, at the time of assignment of a specific task, the task could have been performed
in either a safe or unsafe manner and the agent failed to prevent the miner from employing the
unsafe one. The agent has the obligation to prevent those hazards which he or she has reason to
know will occur. Roy Glenn at 1588.
The proposed special assessments are based upon the following citations in the stated
amounts: 1) Citation No. 6507102, $3600.00; 2) Order No. 6505709, $6000.00; 3) Order No.
6505714, $4000.00; and, 4) Order No. 6505715, $4000.00. They have been assessed against
both Robert Mize and Clayborn Lewis who have stipulated to being "agents" of Mize Granite
Quarries, Inc. under the provisions of 110(c).
In Sunny Ridge Mining Co., 19 FMSHRC 254, 272 (Feb. 1997), the Commission held
that ''judges must make findings on each of the [statutory penalty] criteria [of section 1 lO(i)] as
they apply to individuals." The "relevant inquiry with respect to the criterion regarding the effect
on the operator's ability to continue in business, as applied to an individual, is whether the
penalty will affect the individual's ability to meet his financial obligations ... [w]ith respect to
the 'size' criterion, ... as applied to an individual, the relevant inquiry is whether the penalty is
appropriate in light of the individual's income and net worth." Ambrosia Coal and Construction
Co., 18 FMSHRC 819, 824 (May 1997) (Ambrosia I). The Commission further held that, if an
individual is married, the judge should consider the individual's share of the household net
worth, income, and expenses. Ambrosia Coal & Construction Co., 19 FMSHRC 381, 385 {April
1998) (Ambrosia JI).
Robert Mize raised a defense of an inability to pay the penalties as a small business owner
fighting to stay in business. Neither party provided evidence at the hearing pertaining to the
1 IO(i) penalty criteria for Mize or Lewis. -I therefore issued an Order dated March 4, 2011
reopening the record for 10 days for submission of relevant evidence by the Secretary, Mr. Mize
and Mr. Lewis. The Secretary and Mr. Mize responded. Mr. Lewis did not. Under the
circumstances, I find that making additional inquiries and delaying the case further would not be
fruitful. Instead I make the finding that the penalties I assess will not adversely affect the ability
to meet individual financial obligations of Mr. Lewis. See William A Hooten, Jr. 21 FMSHRC
1083, 1091 (Oct. 1999) (AU).
The Secretary provided the personal income tax returns for the Robert Mize for years
2007, 2008 and 2009. S-22-24. The Secretary stipulated that Mize has not had any injuries or
lost workdays on the site and was the recipient of two safety awards. She also stipulated that
each of cited conditions was rapidly abated in good faith. She argues that Mize has sufficient
income to support the proposed penalties based upon the income tax returns provided.
Also undisputed is the fact that Robert Mize is the owner/operator of Mize Granite
Quarries, Inc. and Mize Granite Sales, Inc. I consider the overall deterrent purpose of the Act
and that fact that Mize has been assessed rather significant 11 O(i) penalties for the violations
which will also be paid by Mr. Mize. I have taken this overlapping effect of the penalties into

33 FMSHRC Page 916

account in the assessment of the personal penalties. I find the penalties proposed by the
Secretary are disproportionate to the size of the mine vis a vis the income of the agents, and their
lack of personal histories for previous violations.
The tax returns document that Robert Mize's wife receives Social Security disability
payments for a disabling medical condition. He also supports two adult daughters and one
grandson whom he claimed on this income tax as dependents. I do not take into consideration
those expenses incurred on behalf of his daughters or grandson as legal obligations or within the
Commission's rulings in Ambrosia I or II in determining the appropriate amount of penalties.

1.

Penalties against Robert Mize

I have previously stated my findings with respect to gravity and negligence. Based upon
the evidence of record, I assess the following penalties:

a. Citation No. 6507102

$500.00

b. Order No. 6505709

$500.00

c. OrderNo. 6505714

Dismissed

This violation was of significant and substantial gravity resulting from. mod~ate
negligence but not an unwarrantable failure as discussed previously. For the same reasons I
found this violation to be of a lesser degree of negligence than that assessed by the Secretary, I
find that a 110(c) penalty is not appropriate.
d. Order No.. 6505715

$500.00

Total:

$1500.00

2. Penalties Against Clayborn Lewis
Taking into account that Mr. Lewis is a paid employee of Mize, and not the owner, but
otherwise for the same reasons set forth above regarding Mr. Mize, I assess the following
penalties.
a. Citation No. 6507102

$300.00

b. Order No. 6505709

$300.00

c. Order No. 6505714

Dismissed

33 FMSHRC Page 917

d. Order No. 6505715

$300.00

Total:

$900.00

ORDER
I. Citation Nos. 6505712 and 6505717 are vacated. Citation Nos. 6507102, 6507104,
6505710, 6505711, 6505713 and 6505716 are affirmed and Mize Granite Quarries is directed to
pay the total penalties of $8,871.00, for the violations charged therein within 40 days of the date
of this decision. Order Nos. 6505709, 6505714 and 6505715 are affirmed, and Mize Granite
Quarries is directed to pay total penalties of $16,940.00 for violations charged therein within 40
days of the date of this decision.

II. The charge herein against Robert W. Mize under Section 1 lO(c) of the Act, based
upon Order No. 6505714 is dismissed. The charges against Robert W. Mize based upon
Citation No. 6507102 and Order Nos. 6505709 and 6505715 are affirmed and he is directed to
pay total penalties of $1500.00 within 40 days of the date of this decision. The charge herein
against Clayborn Lewis under Section 110(c) of the Act which is based on the violation charged
in Order No. 6505714 is hereby dismissed. The charges herein against Clayborn Lewis based on
the violation charged in Citation No. 6507102 and Order Nos. 6505709, and 6505715 are hereby
affirmed and Clayborn Lewis is directed to pay total civil penalties of $900.00 within 40 days of
. the date of this decision.

~-.-R_a_e

__

Administrative Law Judge

Distribution List:
Chama C. Hollingsworth-Malone, Esq. Office of the Solicitor, U.S. Department of Labor, 61
Forsyth Street SW,, Room 7Tl0, Atlanta, GA 30303.
Robert W. Mize, ill, President, Mize Granite Quarries, Inc., P.O. Box 299, Elberton, GA 20635
Clayborn Lewis, Mize Granite Quarries, Inc., P.O. Box 299, Elberton, GA 30305

33 FMSHRC Page 918

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, OC 20001

April 20, 2011
DISCRIMINATION PROCEEDING

SUSAN A. LUCERO,
Complainant,

Docket No. WEST 2010-636-D
Case No. DENV-CD-2010-01

v.

POWDER RIVER COAL, LLC.,
Respondent,

Mine: North Antelope Rochelle Mine
Mine ID: 48-01353

DECISION
Appearances: Ms. Susan Lucero, representing herself
Kristen L. Johnson, Esq.; Kristen White, Esq, on behalf of Powder River Coal LLC
Before: Judge David F. Barbour
This case is before me on a complaint ofdiscrimination brought by Susan A. Lucero
againstPowder River Coal, LLC ('~Powder River") under Section 105(c)(3) of the Federal Mine
Safety and Health Act of 1977 ('~fine Act"). 30 U.S.C. § 815(c)(3)(2006). Lucero contends that
she was ''interfered with and bullied" because she reported safety concerns at Powder River's
North Antelope Rochelle Mine, a surface coal mine located in Campbell County, Wyo~ng.
Complt. 4. She also contends that she was not promoted because of her concerns. Id. At the
time of the alleged discrimination, Lucero primarily operated a coal haul truck and a rubber tired
bulldozer ("rubber tired dozer" or "RTD").
Powder River answers by denying all ofLucero's allegations and by specifically asserting
that Lucero did not suffer any adverse action, or if she did that the adverse action was not
motivated in any part by her protected activity. Powder River asserts that any action the
Company took with regard to Lucero's employment was based on "legitimate and
nondiscriminatory reasons." Answer 2.

PROCEDURAL BACKGROUND
Following the receipt of Powder River's answer, the matter was assigned, and I ordered
Lucero to clarify her complaint with respect to her claims of protected activity and adverse
action. In her amended complaint, Lucero describes safety complaints she made to her acting
supervisor on April 17, 2009. In the early morning of April 17, 2009, she noticed large holes in
the road leading to the mine's Middle Pit (the "pit"). She feared the holes posed a danger to haul
trucks. Around 6:00 a.m., Lucero reported the problem over the radio to her acting supervisor,
Scott Earnest. Am. Complt. 2. The shift ended at 6:30 a.m. Earnest was highly annoyed with her
33 FMSHRC Page 919

report and he responded sarcastically and angrily about the timing of Lucero' s concern. Id. He
said nothing about its substance. Am. Complt. 1-2.
Five days later, on Wednesday, April 22, Powder River conducted a safety meeting for all
miners working on Lucero's shift. Am. Complt. 2. At the meeting Lucero described Earnest's
reaction to her April 17 safety complaint. Id. According to Lucero, when she finished Earnest
yelled from the back of the room, "It was 6:00 o'clock." Id. Lucero maintains that rather than
support her, Charles ("Chuck") Davis, a management official, stated that safety was a "matter of
opinion." Id.
Lucero was asked to stay after the safety meeting for another meeting with management
officials. Am. Complt. 2. At the second meeting Lucero contends that management officials
made excuses for Earnest and made it seem as though Lucero was the problem in order "to
protect [Earnest]." Id. She adds, "Management did not address my concerns in a way that [my]
fears reasonably should have been quelled." Id. In addition, Lucero further maintains that
·
because of the April events, between May 10, 2009 and December 3, 2009 she was denied a
promotion to which she was entitled. Id.

In responding to Lucero's amended complaint, Powder River continues to deny all of her
allegations. It emphasizes that after hearing Lucero's concern about the condition of the haul
road, Earnest contacted other haul truck drives to determine if corrective actions were needed and
then ordered the holes in the road filled and the bed leveled. Resp 't. Am. Answer 2. It also states
that at the second April 22 meeting, management officials explained to Lucero the steps that had
been taken to respond to her concerns; that Earnest agreed he had not responded to Lucero "as
nicely as he should," that he apologized to Lucero, that Lucero refused to accept the apology and
that she angrily left the meeting. Id. Powder River maintains that Lucero was in no way the
subject of adverse action because she reported the condition of the road, and that although she
was denied a promotion subsequently, it was because she failed to demonstrate the necessary
skills when she was evaluated by her trainer. Id. 4. It further states that it continued to work with
Lucero to get her to the point where she could be promoted and that she was promoted in
December 2009. Id. 4-5. Powder River also claims the decision to promote Lucero was
essentially made before the Company received a copy of the discrimination complaint Lucero
filed with MSHA. 1 See id. 5-6.
The matter was heard in Gillette, Wyoming. Powder River was represented by counsel.
Ms. Lucero represented herself.

THE STIPULATIONS
At the start of the hearing counsel for Powder River read the following joint stipulations

1

Ms. Lucero's complaint to MSHA, a copy of which is attached to the complaint that she
filed with the Commission, is dated December 8, 2009.
33 FMSHRC Page 920

into the record:

I. [Powder River] is an operator within the meaning of the
Mine Act.
2. Powder River ... [and the mine are]subjectto the
jurisdiction of the [Mine Act].
3. At all times relevant to this proceeding ... Lucero
was a miner within the meanings of Section 3(g) and
Section 105(c) of the Mine Act. [30 U.S.C. §§ 802(g),
815(2006).]

4. The Administrative Law Judge has jurisdiction in this
matter.

5. Susan Lucero began work at [the mine] on March 10,
2008, as a production technician.
6. Susan Lucero is assigned to Coal Crew [No. J 3 and
has been since March 10, 2008.

7. Susan Lucero was recommended for advancement to
C-Tech level on June 18, 2008.
8. On April 22, 2009 a meeting was held at [the
[m ]ine with Don Curtis, [a] coal crew team leader;
Chuck Davis[, another] coal crew team leader;
Jim Blonigen. [Coal Crew 3 supervisor]; Scott
Earnest, [s]tep-up [s]upervisor; and Susan Lucero.[2]
9. Jim Blonigen held an evaluation meeting with
Susan Lucero on August 22, 2009.
10. A meeting was held with Jim Blonigen. Don Curtis,
Shantel Moore, [an] H.R. representative, and Susan
Lucero on October 5, 2009.

2

There are two coal team leaders at the mine. Coal team leaders are responsible for
making sure there is enough coal to fill customers' orders. They also help with personnel
evaluations, review promotion recommendations and review reported safety incidents.
Tr. 449-450.
33 FMSHRC Page 921

11. [Powder River] provided to Ms. Lucero an action
plan for Advancement on Rubber Tire Dozer[s] to
B-Tech at the October 5, 2009 meeting.
12. Jim Blonigen held an evaluation meeting with
Susan Lucero on December 13, 2009.

13. On December 13, 2009, Jim Blonigen notified
Susan Lucero that she qualified for advancement to
[B-]Tech retroactive to November 10, 2009.
14. On or about January 6, 2010, MSHA detennined
that no discrimination occurred under Section 105(c)
of the Mine Act. [30 U.S.C. § 815(c)(2006).]
15. On or about February 1, 2010, Susan Lucero filed
a discrimination complaint with the ... Commission
pursuant to [s]ection 105(c)(2) of the Mine Act. [30
U.S.C. § 815(c)(2)(2006).]
Tr. 18-20.

In addition to these 15 stipulations, two more stipulations were added by counsel and
Lucero at the hearing:
l. [O]n or about December 8, 2009, Lucero filed a
discrimination complaint with MSHA under [s]ection
105(c) of the Mine Act. [30 U.S.C. §815(c)(2006) .]
2. [T]he exhibits to be offered [by] the parties
are ... authentic, but no stipulation is made as to their
relevance or to the truth of the matters asserted
therein.
Tr. 20-21.

FACTUALBACKDROPTOTHECOMPLAINT
THE MINE AND LUCERO'S JOBS
During the course of her opening statement, counsel for Powder River described the
mine, the work schedule at the mine, Lucero 's place in that schedule, and the Company's
advancement policies. The infonnation was confinned during the hearing, and counsel's

33 FMSHRC Page 922

description was a helpful backdrop to the testimony that followed.
Counsel explained that the mine is one of the largest surface coal mines in the United
States. Tr. 26. Coal is mined by draglines which are located in the mine's pits. Id. Once
extracted, coal is loaded into haul trucks and hauled to hoppers at the mine where it is crushed
and conveyed to silos for storage. Id. It is then loaded into trucks and hauled to railcars for
shipping. Id.
Miners work 12 hour shifts. Tr. 27. The shifts are rotated between day and night every 28
days. Id. There are four coal crews at the mine. Id. At all times, Lucero has been assigned to
Crew No. 3, and her primary supervisor has been Jim Blonigen. Id.
Ms. Lucero has operated three types of heavy eqmpment: haul trucks, blades, and rubber
tired bulldozers. Tr. 27. Although Lucero has usually op,erated a haul truck, she was being
trained for advancement as an RTD operator. Id.

POWDER RIVER'S PROMOTION POLICY AND LUCERO
Miners who work for Powder River begin their employment at an entry level. (This
entry-level policy applies to all miners, no matter their prior experience.) Entry level miners are
called ''technician inductees" or "tech inductees." Tr. 28. During an inductee's first 360 hours of
work, the inductee is evaluated by a trainer or supervisor to determine which of three pieces of
equipment (haul truck, blade or RTD) he or she can operate. Id. Upon completion of the initial
360 hours of work, if the miner is determined by the trainer or supervisor to have the skills
necessary to operate one of these pieces of equipment, the miner is recommended for placem~nt
at C-Tech level. Tr. 28. This is the highest level at which a miner can be placed after completing
his 360-hour period. Id.
After a miner is advanced to C-Tech, the miner is not eligible for further advancement to
B-Tech until one year after his placement date. Tr. 30. To qualify for B-Tech the miner must
demonstrate consistent mastery of the necessary advanced skills. Jn addition, the miner cannot
have experienced a chargeable safety incident during the year. Id. If the miner has a chargeable
safety incident, there is an automatic 90-dayhold placed on the miner's advancement. Tr. 30-31.
Shantel Moore, a human resources ("H.R.") representative at the mine, explained that the
Company has adopted a written advancement policy entitled the "Technician Concept."
Tr. 509-510; Resp't. Exh. 17. As just noted, every new employee is hired as a tech inductee.
There are three types of tech inductees; production techs, maintenance techs, and maintenance
support techs. Production technicians are equipment operators who work in the pit or miners
who work in the plant. Resp't. Exh. 17 at 61; Tr. 511-512:
Lucero worked as a production tech in the pit. On May 10, 2008, Lucero completed her
360 hours of training. However, her evaluation did not take place until June 18, 2008, at which

33 FMSHRC Page 923

time Blonigen reeommended Lucero for placement at C-Tech level. Tr. 29, see also Tr. 233;
Resp't. Exh. 11. Her placement date was May 10, 2008. Once she advanced to C-Tech, Lucero
received a retroactive pay increase. 3 Id.
Moore confirmed that all newly hired employees are classified as inductees for their first
360 hours of work. Tr. 512-513; see also Tr. 529. Powder River views the induction period as a
chance for the inductee to show his skills and abilities on various pieces of equipment. See Tr.
294. If an employee is hired as an equipment operator, during the induction period the employee
is given an opportunity to demonstrate basic skills on the equipment. Id. Further training is given
to improve the miner's skills after the employee has qualified. Id. At the end of360 hours the
highest level at which a new employee can qualify is C-Tech. Tr. 515. The date the inductee is
placed in his first tech level is his "placement date." One year after the placement date the miner
is eligible to advance to a higher tech level. Tr. 516. If an employee is evaluated and advanced
after his placement date, the employee is paid retroactively to his placement date. Id. In other
words, once an employee is advanced, he is always paid retroactively to the date he became
eligible to advance. Tr. 546. Either a miner's supervisor can evaluate a miner for advancement
or the supervisor can request that someone from the training department observe the employee
and evaluate the miner for advancement. Tr. 528. If an employee is not recommended for
advancement, the employee can be evaluated again in 90 days. Tr. 519. The end of the 90-day
period becomes the miner's new placement date ifhe is advanced.

LUCERO'S MAY 2008 EVALUATION
Lucero testified she began work on March 10, 2008 and was eligible for her initial tech
level evaluation on May 10, 2008, 360 hours after March 10. Tr. 232-233. However, it was not
until June 18, 2008, that Jim Blonigen, Ms. Lucero's primary supervisor, performed her initial
tech level evaluation. See Resp't. Exh. 2 at 10-4.4 As a result of his observations, Blonigen
recommended Lucero for advancement to C-Tech. Tr. 307. He noted many positive things about
Lucero's job performance. He found that Lucero was not afraid to ask questions, came to work
prepared, accepted job assignments without complaint, did whatever she was asked, got along
well with other members of her crew, asked for help when she needed it, had zero safety
incidents and perfect attendance. Resp't. Ex. l1at3; Tr. 54-55, 298. Blonigen recommended

3

Counsel asserts that it is not unusual for a miner to be evaluated after the date the miner
becomes eligible for advancement and that a delayed evaluation does not harm the miner because
the pay increase that corresponds with the advancement is always made retroactive to the date
the miner became eligible for advancement. Tr. 29-30.
4

Blonigen explained that an evaluation can take place after the placement date because
of a number of reasons. For example, more important things may be happening or a miner may
be scheduled for a vacation. Tr. 296. In addition, before a miner is officially advanced, the
evaluation and recommendation must be reviewed by H.R. personnel and higher management
officials. Id.
33 FMSHRC Page 924

that Lucero work on her skills on RTDs, haul trucks and other equipment. Id. He added, "She is a
little bit rusty, but things are going well as she spends more time on the equipment." Resp't. Ex.
11at3.
Earlier Blonigen had completed a form concerning Lucero's qualification on a blade. See
CompL Ex. 2 at 10-4. Eighteen tasks involving operation of the equipment are listed on the form
and the person who completes the form must indicate whether or not the employee can perform
the tasks. Blonigen checked "yes" for each of the 18 tasks. See Complt. Ex. 2. He also hand
wrote the following comments in the "Experience & Comments" part of the form: "Susan does a
good job of keeping large oversize out of [the] road, keeps drainages open, does not run wind
rows across traffic patterns and communicates well with other operators." Id.; Tr. 55.
Also on June 12, 2008, Blonigen filled out and signed an RTD Qualification Form for
Lucero. He again checked ''yes" with regard to the satisfactory performance of each of the 18
tasks in which a dozer operator must show proficiency. He handwrote the following comments
in the "Experience and Comments" part of the form: "Susan understands what is expected of
her[. She] uses her blade appropriately and keeps a level floor[. She] communicates with
shovels and trucks well." Compl. Ex. 10-5; Tr. 55-56. But Blonigen emphasized that his
evaluation was based on an assessment ofLucero's basic, not advanced skills. Tr. 394-395,
As stated, Lucero's placement at the C-Tech level was effective as of May 10, 2008
(Tr. 295; Resp't. Ex. 11) and May 10, 2008 became the start date for her future evaluations.
Tr. 95. This meant that Lucero was eligible to be evaluated for B-Tech on May 10, 2009.
However, as discussed below, Lucero was not eligible to be advanced in May. Because of a
chargeable accident her advancement date was deferred for 90 days, which meant that she did not
become eligible for advancement until August 10, 2010. When the evaluation was conducted
Lucero was denied advancement. As will be discussed, the Company maintains Lucero was not
promoted because she did not consistently exhibit a mastery of the skills required for
advancement, but Lucero believes the Company's reason is pretextual. In Lucero' s view, the real
reason she was not promoted in August 2009 is that the Company was retaliating against her for
her protected activities of the previous April.

THE INCIDENT OF APRIL 17
On April 16, 2009 -April 17, 2009 Scott Earnest was acting as the night shift's "step up"
supervisor, meaning he was talcing the place of regular supervisor, Jim Blonigen, who was
elsewhere. 5 Tr. 95, 100, 104. Lucero, who was operating a haul truck, stated that around 6:00
a.m., she called Earnest to report an unsafe condition where she and other miners were working.
Tr. 185. It had been raining a lot that week making the pit road rough, muddy and full of the

5

Lucero described a "step up" as being "like a relief foreman." Tr. 39. She explained
that when Blonigen was absent, "one of the techs steps up to be the foreman that day." Id. The
step up foreman serves until the regular foreman returns. Tr. 39-40; see also Tr. 101.
33 FMSHRC Page 925

holes. Tr. 187. Prior to 6:00 a.m., Earnest sent a bulldozer into the pit to smooth out the floor.
However, after looking at the conditions, the bulldozer operator left the pit. Tr. 186. Lucero also
left. Id. She returned around 6:00 a.m. Id. While she was gone, the condition of the road
deteriorated badly. Id. According to Lucero, there was so much water, traffic was down to one
lane. Id. Fortunately, there were two or three places where coal haul trucks could pull over and
let other trucks and equipment pass. Tr. 187. Lucero pulled into one of the places to let a loaded
truck that was leaving the pit go by. Tr. 186-187. The truck ran into a deep hole in the road. Tr.
187. As it came out of the hole, the truck's front tires went into the air and slammed back down.
Id. It appeared to Lucero that the driver of the truck lost all control. Id. She feared she was
going to be hit by the out of control truck. Id. She called ''dispatch" using her truck's radio and
reported the hazardous condition of the road. Tr. 187. Fixing the road would have required
shutting it down, which would have the effect of shutting down the pit, and Lucero testified that
the miners working in dispatch told her they had no. authority to close the pit. Id. She therefore
called acting supervisor Earnest. Id.
It was very near the end of the shift, and Earnest had left the pit and gone to the mine
office to do some final paper work before leaving for home. Tr. 106. When Lucero called and
reported the hazardous road condition to Earnest and stated that the road needed to be shut down,
Earnest was angry. He responded, "Oh, I suppose it just happened." Tr. 185-186, see also Tr.
188. Lucero answered, "No, it just didn't happen [sic.]." Tr. 186. Earnest did not ask her
anything about the condition of the road and made no further comment about her complaint.
Lucero was upset because Earnest did not ask her about the road and how it could be fixed. Tr.
188. She maintained that two other coal haulage truck drivers came on the radio and "backed
[her] up and confirmed that ... [the road's condition] was bad." Id. She received no further
communication from Earnest.

Lucero believed that Earnest did not respond appropriately to her safety concern, and that
the manner in which he responded to her was discriminatory. Tr. 258. She stated that, "[It] was
retaliation or humiliating and discriminatory .... I didn't feel confident or I didn't want to put
myself in that position or raise any concerns if I was going to be talked to like that." Tr. 188.
April 17, 2009 was a Friday. Following her conversation with Earnest, Lucero left the
mine for the weekend. Tr. 259. Lucero did not then know, but at the start of the next shift, a
bulldozer was sent to smooth the road. Tr. 258. fu addition, rock was put down to fill the holes
and to improve traction. 6 Blonigen stated that it was, "the proper thing to do." Tr. 76. Blonigen
believed the actions addressed Lucero's safety concern. Tr. 76. He also agreed that it was proper
for Earnest to call other miners to see how they assessed the situation. Blonigen stated, "I do that
all of the time. I verify through other people." Tr. 77.
Lucero did not return to the mine until Monday, April 20. On both Monday, April 20 and

6

The road was never shut down, as Ms. Lucero requested. Once the maintenance work
was completed on the morning shift, the shift ran normally. See Tr. 469-470.
33 FMSHRC Page 926

Tuesday, April 21 Lucero participated in pre-shift meetings with her crew. During these
meetings she did not raise with Blonigen, who had resumed his tole as supervisor, any concerns
about the way Earnest responded to her on April 17. Tr. 259-260, 342, 481.
When Earnest finished his shift on the morning of April 17, he went home and did not
think any more about Lucero's call or his response. ("I thought it was done and over[.]" Tr. 115.)
He heard nothing further from Lucero about the April 17 incident until the Company safety
meeting on April 22. Tr. 116.

THE APRIL 22 SAFETY MEETING
On Wednesday, April 22, the Company conducted a "safety stand down" meeting for all
miners on Lucero's crew. Tr. 117, 343. The miners were asked to think and to talk about safety.
Tr. 343. Lucero remembered coal crew team leaders Don Curtis and Chuck Davis telling the pit
crew that the Company wanted all safety related conditions reported. Tr. 189. They also urged
the reporting of conditions that did not present immediate issues but that might ''tum into" safety
problems. Id. They asked if anyone "had any concerns." Id. According to Blonigen, it was at
this point that Lucero asked what miners were supposed to do if they brought a safety concern to
a supervisor and the supervisor chastised the miner over the radio or ignored the miner. Tr. 343.
Lucero recalled that Earnest, who was in the back of the room, yelled, "It was 6:00 [a.m.]" Tr.
190; 260. Lucero believed Earnest's response was hostile. She stated, "Safety doesn't have a
time. It doesn't matter if it's the beginning of the shift, the end of the shift, or what." Tr. 190.

In Lucero's opinion, Chuck Davis then made matters worse by stating, "It's totally a
matter of opinion." Id.; 260. Lucero believed that Davis's statement ''was like another slap in the
face."7 Tr. 191. From the tone of his voice, Lucero was sure that Davis was defending Earnest.
Tr. 263. More than that, in Lucero's opinion, Davis, like Earnest, was showing hostility and
animosity toward her for reporting safety conditions. Lucero stated, "I felt that he was making
me sorry that I brought ... up [the April 17 incident] because he was insinuating that
it ... wasn't unsafe, and [that] would definitely inhibit me from saying anything in front of the
crew again."8 Tr. 262 .. According to Lucero, because upper management believed she had put
Earnest "in a bad light" in front of the entire crew, management started retaliating against her. Tr.
191-192.

THE SECOND MEETING ON APRIL 22
7

Davis describe his response as "talk[ing] about differences of opinion" with regard to
safety concerns. Tr. 455. He explained, "One person may see different situations as being
unsafe, where others may see it as being fine." Id.
8

However, Davis denied that he was demeaning or discrediting Lucero. He said he
meant that Lucero "[might] have [seen] one thing, where other people during the same shift had
not." Tr. 460.
33 FMSHRC Page 927

At the close of the first meeting on April 22, management officials decided to hold a
second smaller meeting involving Lucero, Earnest and other management personnel. Don Curtis
suggested the second meeting. Tr. 482. Curtis stated, "I recognized that [Ms. Lucero] had a
concern and I requested that we take it ... [up] after the [first] meeting so the rest of the miners
could head to the pit and we could address the situation she was concerned with." Id.
The second meeting was attended by Lucero, Earnest, Blonigen, Davis, Curtis and H.R.
representative Shantel Moore. 9 Tr. 192-193; 456. Davis stated that the purpose of the meeting
was to make sure everyone understood that Lucero had expressed a safety concern on April 17
and that the concern had been "looked at and had been taken care of." Tr. 457. Blonigen testified
that he was afraid Lucero would not report unsafe conditions because of what happened on April
17. Tr. 346. He wanted to make sure that she felt secure to reporting things that were not safe.
Id. Lucero explained that Blonigen ''was concerned ... that I wouldn't report things, and he
wanted to make sure that I felt secure in reporting. And he was encouraging me to report more
unsafe conditions, and I assured him that I would." Tr .193. Davis also wanted everyone to know
that because of the concern, management officials "went out to the pit, did an investigation, and
found out what was going on."10 Tr. 457. As Moore understood it, Lucero felt she had not been
treated fairly or respectfully after raising a safety concern. Tr. 554-555.
At the second meeting the participants talked about Lucero' s call to Earnest, his response
to her and the fact that Lucero felt she had been disrespected. Tr. 483. Davis recalled that those
present discussed that Earnest ''was maybe short with [Lucero], and maybe demeaned" her. Tr.
461. Earnest adlnitted that he responded inappropriately and he apologized. Tr. 483. Davis
remembered Earnest said that if he had been short with Lucero or demeaned her, it was not his
intention. Tr. 461. In Davis's opinion, ''with the apology and/or at least the attempt to
apologize ... there should have been some resolution." Tr. 461-462. Blonigen recalled
reminding Lucero that April 17 had been a long night for Earnest. Tr. 345. He suggested that
Earnest felt he was under pressure and therefore said something he normally would not. Tr. 345.
Earnest testified that he apologized to Lucero "for coming across the way I did," but she
remained "upset." Tr. 119. Earnest agreed he did not respond appropriately to Lucero on April

9

As a H.R. representative, Moore was in charge of recruiting, retention and discipline.
Her specific responsibilities were the employees of the coal department, including the coal group
in which Ms. Lucero worked. Tr. 507-508. Moore's immediate supervisor was John Kertesz,
the mine's H.R. manager. Tr. 507.
10

Davis stated that as part of his job, he wanted to investigate the conditions that led to
Lucero's complaint and what, if anything, was done about them. Tr. 458. He stated that he asked
the day shift supervisor what had happened and the supervisor told him that in response to the
condition of the road on the night of April 16-April 17, the scrapers had leveled the road and
dumped rock in the low spots. Tr. 458-459. Davis believed this action appropriately addressed
Lucero's concern. Tr. 459.
33 FMSHRC Page 928

17. Tr. 121. But he maintained that he tried to explain to her that he was annoyed that she
requested a shut down of the road at the very end of the shift. Shutting down the road had the
effect of shutting down the pit. 11 Tr. 120. Lucero did not accept Earnest's apology. Id. She
wanted to leave the meeting, but Davis and Curtis asked her to stay so the situation could be
discussed more. Tr. 346. However, when it appeared nothing would be resolved, everyone went
back to work. Id.

JUNE 11. 2009 INCIDENT
After the meeting on April 22, Lucero' s already tense relations with Blonigen and Earnest
deteriorated further. For example, on June 11, 2009, Lucero called Earnest on the radio and told
him that the mud was so bad on the pit floor that a hopper needed to be shut down. Tr. 107.
Lucero testified that she had tried five or six times to back up to the hopper, but each time, the
mud made the truck slide dangerously close to the hopper. Tr. 196. Shawn Palmer, who was
working in the pit that night and who was called as a witness by Lucero, remembered the
problems Lucero was having. Tr. 165. He too found it difficult to back to the hopper. He stated,
"it wasn't ideal conditions." Id. Palmer testified that Lucero called him on the radio and asked if
he could tell if she was doing anything wrong and if there was anything different she could do to
reach the hopper. Tr. 166. Palmer responded that all of the truck drivers were "having_
problems." Id. At this point Lucero called Earnest. Id. According to Palmer, Earnest responded
by shutting down the hopper and sending bulldozers to clean up the area near the hopper so the
trucks more easily could back up to the hopper. See Tr. 264. But Lucero added that before it
happened, Earnest called another haulage truck driver, Mjke Dugan. who was ••one of his
buddies" and· asked Dugan if he was having problems backing to the hopper. Tr. 198_. Lucero
claimed that because Dugan was Earnest's friend, Dugan replied, ''No, No, I'm not. I'm doing
just fine." Id.; See Tr. 265. Lucero believed that by calling Dugan over the radio wheie other
miners could hear, Earnest was trying to "humiliate'' her and "discredit [her] skill." Tr. 198.
Lucero later stopped Blonigen to report Earnest's reaction to her safety complaint. Id. According
to Lucero, all Blonigen did was reply, "Some people are more sensitive than others." Tr. 198199. When she told Blonigen she believed Earnest was trying t9 discredit her, Blonigen said that
he would look into it, but he never got back to her. Tr. 198-199.

11

Curtis testified that when asked to do something that resulted in shutting down the pit,
a supervisor "probably would get a second or third opinion ... [and] send maybe a more
experienced person to look at the conditions." Tr. 489. He added, "[W]e usually put two or three
opinions together before we make the call." Id.; see also Tr. 503-504. Moore agreed that not all
employees are empowered to shut down the pit. According to Moore, while employees should
"feel free and ... empowered to call safety and say, I'm going to stop this truck, this isn't
safe ... that doesn't mean that [management] is going to stop the whole job." Tr. 558-559. She
added, "[I]t's a fine line." Tr. 558.
33 FMSHRC Page 929

THE MAY 2009 AND AUGUST 2009 EVALUATIONS
Because of his touchy relationship with Lucero, Blonigen consulted with Chuck Davis
and then asked Aimee Conner of the Company's training department to participate in Lucero's
upcoming evaluation. Tr. 321-322. Blonigen explained, "[I]fI got the training department
involved, maybe [Lucero] would take their advice and their ideas a little better than coming from
me." Tr. 348. Davis testified that it was not at all unusual to have the training department
evaluate employees, that he did it "[a]ll the time." Tr. 466. Moore agreed, she stated she found
nothing out of the ordinary about Conner's assistance. "[Y]ou can't supervise 48 people
effectively and evaluate all of their skills. That's what the training department is for." Tr. 551.
Conner stated she did employee evaluations for supervisors five or six times a year. Tr. 409.
Lucero was evaluated in May 2009, even though she was not eligible for advancement
until August 10, 2009 due to the chargeable-accident. Tr. 239; Resp Ex. 9 at 2; Tr. 240, 300-30,
310; Resp't. Ex. 14. Blonigen asked Conner to observe how Lucero performed her assigned ·
tasks, especially how she operated an RTD. Tr. 407-408, 416. Therefore, Conner followed
Lucero as she performed her job. Tr. 407-408, 416. Although she could not recall the dates and
hours she watched Lucero, Conner testified that it was more than once. Id. She described herself
as being "close enough ... [to] see what [Lucero] was doing" but far enough away that she did
not inhibit Lucero. Tr. 417.
As a result of her observations, Conner gave Blonigen a written evaluation in which she
critiqued Lucero's performance. Tr. 411-412; Resp't. Ex. 13. Although she :praised the manner
in which Lucero conducted her walk around examinations, Conner was critical of Lucero's
operational skills. She reported that Lucero needed to use.the blade of the RTD more effectively.
Tr. 419-420. But Conner believed that Lucero could improve with some guidance from the
Company. Resp't. Ex. 13 at 13; Tr. 412-413.
A task an RTD operator is expected to accomplish is to quickly clean up around the
shovels. See Tr. 292, 308, 390. Blonigen thought that Lucero's cleanups could be more efficient
and timely. As a result of what he observyd and what Conner recommended, Blonigen suggested
that Lucero meet with the shovel operators and talk about how they wanted Rills to cleanup. Tr.
308. He suggested this because although he previously had asked Lucero to meet with shovel
operators ("It's something that I ask [all new RTD operators] ... to do." Tr. 321), up to that time
she had only met with one. Id. Lucero felt meeting with the operators would put her in a hostile
environment. Tr. 309. Therefore, Blonigen offered to have other employees go with Lucero
when she spoke with the shovel operators. Id.
As a result of Conner's evaluation, Blonigen recommended that Lucero not advance to BTech. Tr. 302-303, Resp't. Ex. 13. His reasons were her involvement in a chargeable safety
incident and because Lucero did not meet the more advanced skill requirements for RID

33 FMSHRC Page 930

operators. 12 Tr. 303; see also Tr. 537. Blonigen conveyed the reasons to Ms. Lucero in an
evaluation meeting. ht notes documenting the meeting, Blonigen stated:

I tried to stress the positive and future. She feels I
am putting her in a bad situation asking her to get
on [the] shovels. I offered to have ... [other miners]
go with her.... [I read her] Amiee Conner's
evaluation skills so she understood what was
needed, [!]stressed [that] the RTD incident
would not affect [the next] B-[T]ech
[evaluation] ... unless she had an another incident.
Resp 't. Ex. 19 at 23.
Lucero was next eligible for advancement in August 2009. For consistency, Blonigen
asked Conner to again help him assess Lucero' s skills. Tr. 322. Conner stated that she therefore
observed Lucero on two different days for a few hours each day so she could evaluate Lucero in
relation to her normal duties. Tr. 440. Lucero saw things differently. She believed that when
Conner and/or Blonigen watched her work they were trying to intimidate her and negatively
affect her performance. Tr. 211-212.
As a result of her observations of Lucero, Connner again noted that she did some good .
things, including one of the best walk around examinations of an RTD that Conner had seen. 13
However, Conner also believed that Lucero needed to use the blade of the RTD more effectively
when she moved material. Of the twenty tasks Conner evaluated, she found that Lucero
"frequently exceed[ed]" in her performance of nine of the tasks and "consistently exceed[ed]" in
her performance of 11. She needed to "consistently exceed" in all .18 skills to be advanced. Tr.

204.
However, Lucero noted that when she was rated in May she ":frequently exceed[eel]" in
her performance of five of the skills and "consistently exceed[ed]" in her performance of 15. Tr.
204; CompI. Ex. 2 at 10-17, 10-11. Even though Blonigen stated in August that her skills had
''improved in the last two months" (Compl. Ex. 2. at 10-17), Lucero observed that ifher August
rating was to be believed, she had "'in fact ... gone down in [her] performance." Tr. 204. She
added, "[I]f I improved, I should have had less check marks [in the ":frequently exceeds" column.

12

Davis agreed with Blonigen's recommendation that Lucero not advance. He testified,
"[S]he's going from C-Tech to ... B-Tech, which is ... advanced skills. She had an incident
during that period and her skills do not qualify on [RTDs]." Tr. 468.
13

Other good things were noted in August. Blonigen observed that Lucero "got on the
shovels with almost all of the shovel operators as I had asked her to do and [that she] ...
show[ed] a positive attitude towards this process." Resp't. Ex. 14 at 16. ·
33 FMSHRC Page 931

because] you have to have all of them [']Consistently Exceeds['] to qualify [for advancement]."
Id. Therefore, Lucero found her evaluations to be "all bogus and ... part of [management's]
retaliation." Id.
Conner conducted her evaluation on August 11, 2009. Resp't. Ex. 14 at 17; Tr. 323.
While she stated that "[o ]verall [Ms. Lucero did] a good job," Conner concluded that Lucero was
"still learning how to control the blade [ofherRTD] ... to efficiently do the task that's
assigned." Tr. 419. She also felt that Lucero needed to become better at leveling the pit floor.
Id.; see Resp't. Ex. 13 at 13. Conner added, that if Lucero was made "aware of the areas that she
needs to improve on she can improve." Id. at 13. Lucero thought that Conner did not recommend
her for advancement at Blonigen's direction. Tr. 235-236.
Based on Conner's evaluation, Blonigen recommended that Lucero not advance. After he
completed the August evaluation, he again met with Lucero. Tr. 326. fu his notes of the meeting
he stated:
[Lucero] ... did not get B-Tech because [of the] training
department evaluation that she did not meet [the] criteria
[for] B-Tech. She feels that she is being held back
because of other things that have happened, mainly the
meeting on April 22 .... [Lucero] also feels that it is
unfair that I have the training department evaluate her[.]
Resp't. Ex. J9 at 23-24; Tr. 327.
Later that month when mud again made it difficult to operate an RTD, Lucero was having
problems getting close enough to the shovel to clean up. Conner came to the area and got on the
RTD, taking. over its operation. Tr. 436. Conner cleared some of the mud away. Id. After she
had finished, Lucero threw up her hands and said she was "done," "tired," "frustrated," and she
could not operate the RTD anymore. Tr. 437. Conner responded that Lucero was doing a good
job and just needed to keep at it. Id..
Lucero was eligible for another evaluation and possible advancement on November 10,
2009. Tr. 204, 245, 328, 548-549. In the meantime, Lucero told Blonigen that she wanted to
speak with someone in HR, someone other than Moore. Blonigen told Lucero he would get back
to her about it. When he did not, Lucero contacted John Kertesz, the head of H.R., and he told
her they would speak on September 8. Tr. 208-209. When Blonigen learned this, according to
Lucero, he 'just lost it and started ranting and raving." Tr. 209.
EVENTS OF OCTOBER, NOVEMBER AND DECEMBER 2009
Before her next evaluation, Powder River~s H.R. department instituted a program that it
maintained was designed to help her succeed. Tr. 561. Moore testified an October 5 meeting was

33 FMSHRC Page 932

scheduled to advise Lucero of the advancement plan. Prior to the meeting Blonigen wrote down
some things he believed Lucero needed to work on, and Moore •'put [them] in a form that was
easy to understand." Tr. 330; see also Tr. 489. The resulting document was titled, "Goal to
Acquire Sufficient Advancement Skills on the Rubber Tire [Dozer] To Advance to B-Tech." Tr.
212-213; Resp't. Ex. 15. Lucero, Curtis, Blonigen, Moore and Kertesz attended the meeting. Tr.
562. At the meeting Curtis explained to Lucero that management was trying to help her reach
B-Tech by providing her with additional training. Tr. 491. · Pursuant to the plan, Conner was
assigned to spend more time with Lucero and to work with her until November 10, 2009 to help
her qualify; Tr. 245-246.
At first, Lucero did not want to participate in the plan. Tr. 490. She told those at the
meeting that she no longer wanted to advance on an RTD and that she felt she was being spied
on. Tr. 492. Moore testified that Lucero, "stated that we weren't trying to help her, that we
were ... stalking her, that we were trying to hold her back ... that we weren't treating her
fairly." Tr. 563. Lucero stated that she was done with the advancement process and that she·did
not want further training. Tr. 566. According to Moore, management officials were smprised and
asked Lucero to think about the offer before making a final decision. Tr. 566-567. Moore
testified that Curtis and Blonigen told Lucero her advancement was ''not far off," provided she
improved in the length of time it took to clean up around the shovels, improved how she cut and
leveled the floor, and shortened the time it took to work at the hopper. Tr. 567-568. Conner
testified that she told Lucero she would do what she could to help and Lucero responded that she
was afraid to say ')Io," because the Company would think she was negative. Tr. 445. As a result
Conner and Lucero briefly worked together.
Conner described some of the further training: "[W]e ... talk[ed] about what we could do
to help her on the [RTD,] different techniques [of] how to utilize the blade to the fullest
advantage. We talked aboutthe cut and fill, and I explained a little bit about the [RTD,] the
controls ... and the steering wheel and stuff." Tr. 429-430.
Conner offered to work with Lucero every day and at first Lucero agreed, but on October
8, Lucero declined to work again with Conner. Tr. 247-248. Lucero explained, "I was stressed
and intimidated, upset, [and] I just couldn't bear the thought of Aimee [Conner] following ine
anymore." Tr 216; see Tr. 445.

On November 3, 2009, Lucero had an accident while operating a haulage truck. 14 Tr. 84.
As a result, Lucero was out of work on November 4. When she returned on November 5, she
was restricted to light duty, which meant that she could not be evaluated because she could not
operate the equipment required for evaluation. Tr. 256. Following that she had seven days off as
part of her regular schedule. Tr. 255-256. Lucero did not return to the mine until November 20.

14

Lucero was found not to be responsible for the accident, so a hold was not placed on
her advancement. Tr. 272.

33 FMSHRC Page 933

Tr. 256. According to Lucero, when she returned, she asked Blonigen if her evaluation was
completed, and "he started ranting and raving again." Tr. 219.
Blonigen emphasized that the evaluation was delayed because "in order to remain
consistent" (Tr. 337), he wanted Conner to do it, and Conner's and Lucero's work schedules had
to correspond for the evaluation to take place. Tr. 337-338, see also Tr. 354. According to
Blonigen, the delay would cause no harm to Lucero because if she was advanced, she would be
paid back to the date she became eligible to advance. Tr. 338; see also Resp't. Ex. 19 at 24;
Tr. 339. He added that Lucero ''was not very happy'' about the delay and that she "stated it was
all bull and that I should have it done." Tr. 339. Blonigen maintained that he told Lucero he was
sorry, that he would finish the evaluation when the documentation was completed and that "it
was not uncommon for them to be late." Id. He did not remember yelling at Lucero. Tr. 339-340.
On December 2, 2009, Lucero was called to another meeting, this one was with Davis,
Curtis and Moore in Moore's office. Moore testified that the purpose of the meeting was to·offer
Lucero the opportunity to change crews (Tr. 569) because "of the problems [she] was having
with [Blonigen] and other[ s]."Tr. 221. Davis viewed the offer as a way to alleviate some of
Lucero's dissatisfaction with her work situation. Tr. 463-464. The change would have given
Lucero a supervisor different than Blonigen and a step-up different than Earnest. Tr. 470.
Curtis stated that the offer ''was not received very well" and Moore agreed. Tr. 495.
Moore remembered Lucero telling management officials that they were "trying to get rid of her."
Tr. 572. Moore asked Lucero to think about the offer on her forthcoming days off and let the
Company know whether she was interested. Lucero never responded to the offer. Tr. 575, see
also Tr. 496, 504.
Also, on December 2, Lucero was assigned to clean up at a hopper and a management
official commented to Conner about the good job Lucero was doing. Tr. 225. This was after
Lucero felt that Blonigen criticized her for not working fast enough. Tr. 226. When Conner
repeated the compliment to Lucero, Lucero stated, "[O]ne moment Jim [Blonigen] is insinuating
that I'm just sitting there all the time and I was busting my butt. And then ... a couple of
minutes later, Aimee [Conner] told me that [the management official] said I was doing ... a
good job." Id.

LUCERO'S DECEMBER 2009 EVALUATION
In early December, Conner, at Blonigen's request, evaluated Lucero's performance. Tr.
438. Conner testified that she observed Lucero at work for more than one shift. Id. As a result of
what she saw, Conner found that Lucero "consistently exceeded" in the performance of all 20 of
the required skills. Tr. 439. Conner recommended Ms. Lucero for advancement to B-Tech. Id.
On December 3, Blonigen countersigned Conner's evaluation (Resp't. Ex. 16 at 22; Tr. 439), and
on December 10, he signed a recommendation for Lucero's advancement. Resp't. Ex. 16 at 19;
Tr. 250, 336. Curtis concurred that Lucero should be advanced, and he signed and dated the

33 FMSHRC Page 934

recommendation on December 12, 2009, Resp't. Ex. 16 at 10, Tr. 500. On December 13,
Blonigen met with Lucero to review the evaluation and to tell her of her promotion. Tr. 336. He
told Lucero he knew they had not always seen "eye to eye" and that he "hoped.in the future ...
[they would] work better together." Tr. 340. He shook Lucero's hand. Id. Blonigen and Lucero
signed the evaluation on December 13 and Lucero was promoted to B-Tech retroactive to
November 10. Resp't. Ex. 16 at 21.
Prior to her advancement Ms. Lucero filed a discrimination complaint with MSHA.
MSHA received the complaint on December 8, 2009 and mailed a copy to the Company's office
in Gillette, Wyoming. There it was received and signed for by the Company's mail agent on .
December 11, 2009. 15 Tr. 253. Curtis testified that he was not aware of the complaint when, on
December 12, he concurred with Blonigen's recommendation to advance Lucero. Tr. 501.
Blonigen testified he too was unaware of the complaint when he met with Lucero on December
13. Tr. 341. Lucero asserts that these claims are not credible, that she was only advanced
because management officials knew she had filed the complaint. Tr. 227, 251, 254.

OIL ON THE WIRES INCIDENT OF DECEMBER 2. 2009
Lucero also questioned witnesses about an incident that occurred on December 2, 2009,.
when she spoke with Company skills trainer, Allan Schaefer, about oil on the electrical wires of a
haul truck. Tr. l 74. According to Shaefer, the standard procedure at the mine is to shut .down the
equipment. Tr. 170. It is th~ responsibility of the person operating the equipment to.initiate the
shut down. Tr. 173.
Lucero testified that when she noticed oil on the electrical wires of the haul truck, she
called Blonigen about the oil, and she asked Blonigen to back her up with the maintenance.
department. Tr. 222. Lucero recalled that Blonigen reacted angrily to her report. He told her that
he did not have time and that he would get to her problem when he could. Id. Shortly thereafter,
Shaefer drove up. Tr. 222-223. Lucero asked him if equipment with oil dripping on electrical
wires was an automatic "down," and Shaefer stated it was. Tr. 223. Just then, Blonigen arrived.
Tr. 223. He looked at the equipment and told Lucero to take the truck to the shop and have the
maintenance personnel make the decision whether the truck should be taken out of service. Id.
At the shop, several mechanics told her she should speak with their supervisor. Tr. 223.
Lucero claimed it took speaking with three bosses and five mechanics to get the equipment
"downed." Tr. 224. However, Lucero also agreed that as the operator of a haul truck, she had the
authority to "down" the truck and take it out of service prior to this. Tr. 268.
Blonigen testified that the question of whether automatically to down equipment with oil
on its electrical wires is "kind of ... tricky." Tr. 290. He explained that in general a report of oil
on electrical wires means an automatic downing of equipment, but "if it's old oil ... we might

15

Lucero also received a copy of the complaint from MSHA on December 11. Tr. 253.

33 FMSHRC Page 935

wash it off just to see if there is fresh oil coming on it." Id. He emphasized that when the truck
was in route to and in the shop it was out of production and effectively "downed." Tr. 364.

BACKUP INCIDENT OF JUNE 4, 2010
Finally, Lucero raised an incident that occurred on June 4, 2010, when she was a
passenger in a Company van. Tr. 229. Also in the van were Blonigen, miners Travis Ahem and
Jody Sisson and another miner identified only as "Jason." Tr. 139. The group was coming back
from a Company safety meeting. Blonigen was driving the van. Tr. 140. He backed up, and did
not first honk. Id. Lucero commented to all in the van that Blonigen did not honk before he
backed up. Id. According to Sisson, Blonigen responded that he did not have to honk because
the van was a light duty vehicle. Tr. 140. Lucero stated that Blonigen "'screamed and yelled" (Tr.
229), but Sisson stated that Blonigen "just spoke up." Tr. 140. Lucero maintained that Blonigen
was "pretty intimidating and I was sorry ... I brought ... up" the issue. Tr. 229. She noted that
Blonigen's outburst came after a safety meeting in which the Company encouraged miners to
watch out for one another and in which Company officials discussed the proper way to react to
safety concerns when they were expressed. Id. Later Lucero asked Conner if vans had to honk
when they backed up, and Conner told Lucero that it was "courtesy" for light vans, not a
requirement. Tr.· 231.

THE LAW
The legal principals under which this case must be decided are well known. In order to
establish a prima facie case of discrimination under section 105 (c)(1) of the Mine Act, a miner
must demonstrate by a preponderance of the evidence "(l) that [the miner] engaged in a protected
activity, and(2) that the adverse action of which the miner complains was motivated in any part
by the protected activity." 16 Sec '.Y ofLabor on behalfofPasula v. Consolidation Coal Co., 2

16

Section-IOS(c)(l) of the Mine Act provides:

No person shall discharge or in any manner discriminate against or cause
to be discharged or cause discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner, representative of miners or applicant
for employment in any coal or other mine subject to this Act because such miner,
representative of miners or applicant for employment has filed or made a
complaint under or related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative of the miners at the coal or
other mine of an alleged danger or safety or health violation in a coal or other
mine, or because such miner, representative of miners or applicant for
employment is the subject of medical evaluations and potential transfer under a
standard published pursuant to Section 101 or because such miner, representative
of miners or applicant for employment has instituted or caused to be instituted any
proceeding under or related to this Act or has testified or is about to testify in any
33 FMSHRC Page 936

FMSHRC 2786, 2799-2800 (Oct. 1980), rev 'don other grounds sub nom. Consolidation Coal
Co. v. J.\1arshall, 663 F.2d 1211 (3rd Cir. 1981). Under Section 105(c)(l) safety complaints are
specifically mentioned as activity that warrants protection. 30 U.S.C. §820(c)(l) (2006).
Generally, an adverse action is an act or omission by the operator that subjects the affected miner
to a detriment in his employment relationship or to discipline. Secy ofLabor on behalfof
Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847-1848 (Aug. 1984). Adverse actions
include discharge, suspension, demotion, coercive interrogation and harassment over the exercise
of protected rights. Moses v. Whitley Dev. Corp., 4 FMSHRC 1475, 1478 (Aug. 1982), ajf'd, 770
F.2d 168 (6th Cir. 1985). They also include the denial of a promotion.
The Commission has noted that "direct evidence of motivation is rarely encountered;
more typically, the only available evidence is indirect." Sec y ofLabor on behalf of Chacon v.
Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev. on other grounds sub nom.
Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The Commission also has noted
that while direct evidence of discriminatory motivation is rare, circumstantial evidence of
discriminatory intent is not. Circumstantial evidence may include: (1) knowledge of protected
activity, (2) hostility or animus toward the protected activity, (3) coincidence in time between the
protected activity and the adverse actions and (4) disparate treatment. Chacon, 3 FMSHRC at
2510. The more hostility or animus is specifically directed toward the protected activity, the
more probative it is of discriminatory intent. Id.
Once the complainant has established a prima facie case "[t]he operator may attempt to
rebut [the] prima facie case by showing either that the complainant did not engage in p1"0tected
activity or that the adverse action was in no part motivated by protected activity." Sec)-· ofLabor
- on behalfofRobinette v. United Castle Coal Co., 3 FMSHRC 803, 825 n.20 (Apr. 1981). 1he
operator may also affirmatively defend by proving by a preponderance of the evidence that he
was motivated by both the miner's protected and unprotected activities and would have taken the
adverse action for the unprotected activity alone. Robinette, 3 FMSHRC at 818.
I conclude that Lucero has failed to establish a prima facie case of discrimination.
Therefore, I deny her complaint.

PROTECTED ACTIVITY
The parties agree that Lucero complained to Earnest, her step-up supervisor, about the
condition of the pit haul road near the end of the shift on the morning of April 17. The also agree

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 the Act. 30 U.S.C. § 815(c)(l) (2006).

33 FMSHRC Page 937

that on April 22, ·she questioned the way the Company, through Earnest, responded to her April
17 complaint. On April 17, her concern was about the hazards posed to herself and others by
specific road conditions. On April 22, her concern was about the way Company supervisors
responded to employees who reported safety hazards. Both of these concerns directly related to
safety, and they were protected. Also, Lucero's December 2 report, of oil on the wires of a
haulage truck was protected, as was her June 4 observation about Blonigen's failure to sound the
van's horn prior to backing up. Concerns about oil on electrical wires and sounding the van's
horn related directly to safety.

In each of these four instances, Lucero established that she engaged in protected activity.
The question is whether she suffered adverse action because of the activity, and I find that she
did not.

ADVERSE ACTION
I. INCIDENT OF APRIL 17
Although Lucero maintains that Earnest did not address her safety concern about the road,
the record indicates otherwise. It supports finding that following her call, Earnest alerted the
supervisor of the next shift about the condition of the road and that at the beginning of the next
shift the holes in the road were filled and its bed was smoothed. Tr. 75-76, 258, 469-479. This is
exactly the kind of functional response the Act envisions when a valid safety complaint is
brought to a supervisor's attention.
Lucero's real complaint is that when addressing her on April 17, Earnest did not respond
about the substance of her complaint and that the tone of his response was angry. Lucero asserts
that as a result she was intimidated and reluctant to again raise a safety concern with a supervisor.
Tr. 188. The Commission has recognized that there are situations in which the response of a
supervisor to a miner's protected complaint may constitute interference with the exercise of the
miner's right to complain. See Moses v. Whitley Development Corporation, 4 FMSHRC 1475,
1478-1479 (August, 1982), aff'd 770 F.2D 168 (3rd Cir. 1981). The Commission has stated that
the question of whether a management official's response constitutes interference proscribed by
the Act "must be determined by what is said and done, and by the circumstances surrounding the
words and actions." Secretary on behalf ofMark Gray v. North Star Mining, Inc., 27 FMSHRC
1, 8 (January, 2005) (quoting Moses at 1479 n.8). The question essentially is whether a
reasonable miner in Lucero's position and under the same circumstances would have been
reluctant to raise future safety concerns because of Earnest's response. See Gray, 27 FMSHRC at
9 (Quoting American Freightways Co., 124 NLRB 146, 147 (1959)). While it is conceivable that
a response like Earnest's might in some situations intimidate a complaining reasonable miner,
under the particular circumstances of this case, I conclude that it would not.
It is important to emphasize that Earnest's response· while an angry one, was not directed
at the fact Lucero was reporting a hazard, but rather at the timing of the report. Earnest was

33 FMSHRC Page 938

getting ready to go home. The shift had been a hard one. It had been raining for days and the
condition of the haul road had caused problems. Tr. 121. Now, at the very end of the shift, he
was being asked to address the situation. His comment, "Oh, I suppose it just happened," and the
angry tone of his voice, reflected his exasperation at the timing of the report. Tr.185-186. But
what he did not say is telling. He did not disagree with Lucero' s assessment of the hazard. He
did not refuse to address the condition. He did not threaten Lucero for raising a valid concern.
He simply got "growly" (Tr. 91) and essentially questioned why she raised the issue so late in the
shift. He also, all be it unbeknownst to Lucero at the time, addressed the issue so that the hazard
was eliminated at the start of the next shift and the haul road never had to be closed. Tr. 76-77,
112, 258. I find that under these circumstances, a reasonable miner in Lucero' s position would
have understood Earnest's comment and his tone to be directed at the timing of the complaint.
While the record is void of direct evidence on the question, it is reasonable to infer that
Lucero became aware the safety issue she raised had been addressed when she next returned to
work on April 20 and April 21 , 2009. Since closing the road meant shutting down the pit, the
record supports finding that the subject road was the primary haul road, and perhaps the only haul
road, into and out of the pit. The record also supports finding that at the time, Lucero was
primarily operating a haulage truck. I infer from this that either Lucero traveled the road on April
20 and April 21 and therefore knew the road's defects had been remedied, or that one of her
co-workers told her the holes had been filled and the road bed smoothed. If this were not the
case, it would have been reasonable for Lucero to inquire about the road on April 20 or April 21
during the pre-shift meetings with her crew, which she did not. Tr. 259-260, 342, 481.

In concluding that a reasonable miner in Lucero's situation would not have been
intimidated by Earnest's response, I also, find it important that there is no evidence in the record
the Company has a history of ignoring safety complaints and retaliating against miners who make
them. If Lucero established such a history, her professed intimidation might have appear more
reasonable. However, rather that a history of hostility, the record supports finding that Powder
River made efforts to be -responsive to Lucero' s concerns. Its desire to respond is why the second
meeting on April 22 was convened.
In addition, Lucero, despite her claimed reluctance to again raise safety concerns
(Tr. 188), was far from shy about speaking up at the safety stand down meeting on April 22. Tr.
343. More than that, at the second meeting on April 22, she assured Blonigen that she would
continue to raise such concerns. Tr. 193. Lucero stated, "Jim [Blonigen] stated that he was
concerned that ... I wouldn't report things, and he wanted to make sure that I felt secure in
reporting. And he was encouraging me to report more unsafe conditions, and I assured him that I
would." Tr. 193.
Lucero was as good as her word. The record shows that following the April meetings, on
June 11, 2009, December 2, 2009 and June 4, 2010, Lucero continued to raise concerns and
Powder River responded to them.

33 FMSHRC Page 939

For all of these reasons I conclude that a reasonable miner in Lucero's circumstances
would not have been deterred from raising future safety concerns by Earnest's April 17 response.
Moreover, I find that in fact, Lucero was not so intimidated. Therefore, I conclude Earnest's
April 17 response did not constitute an adverse action and that Lucero has failed to establish a
prima facie case of discrimination with regard to it.
Of course, I recognize that it would have been far preferable for Earnest to address the
substance of her concern on April 17, but his failure to do so does not under the particular
circumstances of this case constitute an adverse action. Moreover, while a professional,
courteous response would also have been desirable, as will be noted later in this decision, the Act
does not necessarily protect a miner from a supervisor's ill-tempered, even angry retorts.

II. MEETINGS OF APRIL 22
At the first meeting, on April 22, Lucero raised the issue of Earnest's "growly" reply of
April 17. She did so in response to management's question about whether miners had safetyrelated concerns. She asked what miners were supposed to do if they brought a safety concern to
a supervisor and the supervisor ignored and/or chastised the miner. Tr. 71; Tr. 343. Blonigen
believed that after Lucero asked her question Curtis asked her to whom she was referring, and
she replied Scott Earnest. Tr. 344. Earnest then yelled, "It was 6:00 [a.m.]" (Tr. 190) and Davis
interjected that safety was a matter of opinion. Tr. 191, 455.
I have found that Lucero's inquiry was protected, but I do not view Earnest's gratuitous
statement that "It was 6:00 [a.m.]" as constituting an adverse action. Tr. 190, 260. If anything, the
statement makes even more clear the fact that Earnest's response on April 17 was motivated by
the timing ofLucero's report, not by hostility to its substance, something a reasonable miner
would have apprehended. In addition, although Lucero believed that Davis's observation that
safety was a, matter of opinion would "inhibit [her] and anyone else from bring up safety
concerns," her belief was not well founded. Tr. 191, see also Tr. 262. On the contrary, I find that
in the context of the meeting, a logical interpretation of Davis's statement is that he was simply
expressing the truism that a supervisor must evaluate whether a safety concern is reasonable given
all the circumstances. See Tr. 262, 455. Davis's observation would not have inhibited a
reasonable miner under similar circumstances. As cases that arise under the Mine Act repeatedly
show, what is or is not safe often is a ''matter of opinion," and reasonable minds can, and
frequently do, differ. Further, and as already noted, the comment did not, in fact, inhibit Lucero
from raising subsequent concerns.
For these reasons I find that Lucero did not suffer an adverse action as result of the events
that occurred in the first meeting on April 22.
In addition, I find nothing in the second meeting on April 22 constituted an adverse action
on the Company's part. Unlike Earnest's response on April 17, on April 22 management officials
moved quickly to address the substance ofLucero's concern in a manner that would have satisfied

33 FMSHRC Page 940

a reasonable miner. They immediately convening the second meeting. Tr. 192, 482. They agreed
with Lucero that Earnest's April 17 response was inappropriate, and they directed Earnest to
apologize, which Earnest did. More than that, Blonigen expressly stated that he was concerned
that Ms. Lucero would feel reluctant to report safety issues. Tr. 193. He wanted to make sure she
felt "secure in reporting." Id. Lucero testified she told Blonigen that she would continue to raise
concerns. Tr. 193. Her response was the response of a reasonable miner. The facts do not
demonstrate that Lucero was intimidated by the statements made at the meeting nor would a
reasonable miner in Lucero's position be intimidated by the statements. Accordingly, I find no
adverse action was suffered by Lucero as a result of remarks made at the second meeting.

ID. OIL ON THE WIRES INCIDENT OF DECEMBER 2, 2009
On December 2, 2009, Lucero observed oil on a haul truck's electrical wires. Tr. 222.
Lucero reported the problem to Blonigen over the radio. In so doing, she engaged in protected
activity. Blonigen responded angrily that she would have to wait until he could come to the scene
and look at the truck. Tr. 222. Although Blonigen testified that he did not recall the incident in
any detail (Tr. 389), I accept Lucero's testimony that he came to the site, looked at the truck's
wires and told her to take the truck to the maintenance shop where the mechanics could look at it.
Tr. 222-223. Lucero did this and the truck was taken out of service. Tr. 224.
ldo not find that Ms. Lucero suffered any adverse action as a result of her reported safety
concern. Blonigen responded to her complaint by taking timely action to correct the problem.
Lucero credibly testified that Blonigen was angry when she spoke with him over the radio. Tr.
222. However, he also responded in a fashion that squarely addressed her concern. Tr. 222-223.
Moreover, because he responded by addressing her concern; his angry resp<)nse prior to arriving
on the scene would not have reasonably hindered Lucero or other miners from reporting future
safety concerns.

IV. BACK UP INCIDENT OF JUNE 4, 2010
On June 4, 2010, Lucero asked whether Blonigen, who was driving a Company van in
which Lucero and other miners were riding, should have honked before he backed up. Tr. 131.
Blonigen responded that honking was not required because the van was a light duty vehicle. Tr.
229. Lucero testified that in making his response Blonigen "screamed and yelled." Id. However,
miner Jody Sisson, who was a passenger in the van, stated that Blonigen. ')ust spoke up". Tr. 140.
Conner later told Lucero that honking before backing up a light van was a courtesy, not a
requirement. Tr. 231.
I find that Lucero did not experience an adverse action due to Blonigen's response.
Blonigen addressed Lucero' s protected concern with information that was corroborated by
Conner. Lucero did not like how he did it. She testified that she felt "pretty intimidat[ed]." Tr.
229. Although I find it more probable than not that Blonigen in fact yelled at Lucero, the fact he
raised his voice in response to her valid, but misinformed safety concern, should not have

33 FMSHRC Page 941

intimidated Lucero and would not have intimidated a similarly situated reasonable miner from
engaging in future protected activity. Mining is a rough busiriess in which the "nicities" of work
place communication are frequently honored in the breach. The Mine Act is not so fastidious as
to per se outlaw an angry outburst by a supervisor who is responding to a valid, but misinformed
safety complaint.
V. DENIAL OF ADVANCEMENT
Lucero established that following her protected activities of April 17 and April 22 she was
denied advancement to B-Tech. 17 Clearly, Lucero suffered an adverse action when she was denie<l
a promotion. I conclude, however; that Ms. Lucero did not establish that the Company's failure to
advance her was motivated by her protected activities and therefore did not establish a prima facie
case of discrimination in this regard. Pasula, 2 FMSHRC at 2799-2800. Rather, I find that she
was not promoted until December 13, 2009, because she did not until then consistently exercise
the skills required for advancement.
Lucero began working at the mine on March 10, 2008. Tr. 232. As Moore explained,
Lucero, like all other employees, was hired as a "production tech". Tr. 509-511. Under the
Company's "Technician Concept" policy, Lucero, became eligible· for advancement upon the
completion of her first 360 hours of work, that is on May 10, 2008. Tr. 512-513, 515. Blonigen
recommended her for advancement on June 18, 2008 [18], and she was advanced effective May 10,
2008 . .Tr. 298; Tr. 534, 536. Under the Company's personnel policy, May 10, 2008, became
Lucero's "placement date." Tr. 45, 51-52, 95. Under the same policy, Lucero became eligible for
advancement to B-Tech one year from her placement date, May 10, 2009. Tr. 29, 233; Resp't. Ex.
11. Lucero was not advanced on or effective that date, and the reason is clear. In July 2008,
Lucero was involved in an accident for which she was held to be at fault. Tr. 293-294. When an
"at fault" accident happens to an employee, Company policy is to hold up any advancement
recommended for the employee for a corrective period. In her case, Lucero had a 90-day hold
placed on her advancement, which means that even if she had been recommended for
advancement, she would not have been advanced until August 10, 2009. Tr. 301-302, 310; Tr.
539-540.

In fact, however, Lucero was riot recommended for advancement on or effective May 10.
Rather than finding her failure to advance was caused by her safety concerns of April 17 and April
22, I find that her lack of advancement was caused by her supervisors' conclusion that she did not

17

Lucero does not assert that her protected activity of December 2, 2009 played a part in
her failure to advance.
18

I find nothing contrary to the Mine Act in the fact that decisions regarding Ms.
Lucero's advancement were made on dates later than those on which she became eligible to
advance. I accept Blonigen's common sense testimony that evaluations for advancement are
frequently delayed for any number of more important business reasons. Tr. 296.
33 FMSHRC Page 942

consistently exhibit the skills necessary to advance. This was Blonigen's consistent testimony,
and it was credible. It also was the credible testimony of Moore. Tr. 538.
The record further reveals that Blonigen, realizing that Lucero did not fully trust him to
give her an honest evaluation, sought to shield himself from charges of bias by having an
"outside" person help him evaluate Lucero's skills. Conner was asked to do the job. Tr. 407-408;
416. I accept Conner's testimony that there was nothing out of the ordinary in what she was asked
to do and that she did such evaluations for supervisors five or six times a year. Tr. 409. There is
no basis in the record to conclude that Conner evaluated Lucero in anything other than an
objective, fair way.
The evidence fully supports finding that Conner's May and August 2009 evaluations of
Lucero were solely motivated by her assessment of Lucero's performance. Lucero was trying to
qualify for B-Tech on an RTD. Conner was knowledgeable in the proper operation of Rlps. She
watched Lucero perform her assigned tasks. Tr.416- 417, 440. Based on what she observed,
Conner found that Lucero did not display the skills necessary for advancement. Tr. 412-412, 419,
435-436; Resp't. Ex. 13 at 13. Blonigen accepted Conner's analysis ofLucero's performance, and
denied Lucero a promotion to B-Tech. Tr. 321-322, 326.
From all that appears on the record I find that Blonigen based his denial of advancement
on Conner's evaluation, and I accept as a fact that when Lucero was not recommended for
advancement in August 2009, it was because Lucero needed to improve her skills when operating
an RTD,just as Conner found and just as Conner testified. Tr. 412-413; Resp't. Ex. 13 at 13. In
short, I conclude that the Company's failure to advance Lucero in August 2009 was motivated by
Lucero' s job performance, not by her protected activity of the previous April.
Of course, Lucero believed Conner's evaluations and Blonigen's decision not to
recommend her for promotion were motivated by the Company's hostility to her expressions of
her reported safety concerns. See e.g., Tr. 235-236. However, I detect almost nothing in the
evaluations and Blonigen' s failure to recommend her that supports her suspicion. 19

In fact, the record ieads to the conclusion that Company officials went out of their way to
help Lucero succeed by offering her additional training and even, later in the year, by offering her
the opportunity for a "fresh start." In October 2009, the Company presented Lucero with a planthe "action plan" - to help improve her skills on the RTD and to advance. Resp't. Ex. 15; Tr. 32919

While Conner's August finding that Lucero "consistently exceeded" in her
performance of four less tasks than in May could be interpreted as inconsistent with Conner's
May finding and hence as evidence that the August evaluation was skewed against Lucero (see
Tr. 204), it could equally be interpreted as simply reflecting the state ofLucero's performance at
the times Conner watched Lucero work. For this reason and because there is nothing else in the
record that supports it, I reject Lucero's argument that the two evaluations are evidence the
evaluation process was ''bogus." Tr. 204.
33 FMSHRC Page 943

330; 489-491, 560-561. In addition, in early December Company officials offered her the
opportunity to change work crews and supervisors. Tr. 221; Tt. 463-464, 569.
Lucero was next eligible to advance on November 10, 2009. Tr. 245, Tr. 328. Again,
Blonigen asked Conner to evaluate Lucero, which Conner apparently did either late in November
or in early December. (Conner completed the check list on which she recommended Lucero for
advancement on Demember 3. Resp't. Ex. 16, Tr. 334-336, 437-439.) I accept the credible
testimony ofBlonigen.that Lucero was not fully evaluated until December because Lucero was
out of work in early November and because of difficulties in coordinating Lucero's and Conner's
schedules. Resp't. Ex. 19; Tr. 336-340. Nothing supports finding that the delay was intended to
punish Lucero for her protected activity.
Moreover, I accept as a fact that on December 3, 2009, Conner found that Lucero
consistently exceeded in her performance of the skills required to advance to B-Tech and that
based on Conner's assessment, on December 10, 2009, Blonigen recommended Lucero be
promoted. Tr. 250, 336, 439; Resp't. Ex. 16. She was, in fact advanced to B-Tech on December
12, when Blonigen's supervisor, Curtis concurred with Conner's and Blonigen's recommendation.
Tr. 500; Resp't. Ex. 16 at 19. She was advised of her promotion on December 13. Her December
advancement is not surprising. Since August, Lucero had acquired additional experience and
received additional training. It is reasonable to assume that with her added experience and
training her skills in fact improved, just as Conner found. Tr. 439.
Nor do I find that the Company's motives in denying Lucero advancement until December
12, 2009 are made suspect by the fact that Lucero filed a discrimination complaint with MSHA on
Dei;ember 8, 2009. In fact, Lucero filed her complaint with MSHA five days after Cornier found
that Lucero should be advanced. Resp't. Ex. 16 at 22. While it is true that Blonigen
recommended Lucero for advancement on December 10, this was a day before a copy of the
complaint was received in the Company's Gillette office.
Curtis credibly testified he did not know of Lucero's complaint when he concurred with
Blonigen's recommendation, and there is no evidence in the record to establish that the copy
received in Gillette on December 11 reached the mine or was otherwise brought to Curtis's
attention before that date. However, even if Curtis knew ofLucero's complaint when he agreed to
her promotion on December 12·, I would not find his knowledge to cast significant doubt on why
Powder River advanced Lucero. Curtis's approval of her advancement was based on his
acceptance of Conner's and Blonigen's recommendations. The recommendations were made
before the complaint copy reached the mine's Gillette office, and it was upper management's
practice to accept the promotion recommendations of immediate supervisors and evaluators.

33 FMSHRC Page 944

ORDER
Having concluded that Lucero has not established that she was unlawfully discriminated
against, DISMISS this her complaint and this proceeding.

JJa!tclf~~
David F. Barbour
Administrative Law Judge

Distribution: (Certified Mail)
Kristin R. B. White, Esq.; Karen L. Johnston, Esq., JackSon Kelly PLLC, 1099 18th Street, Suite
2150, Denver, CO 80202
Susan Lucero, 2301 South Emerson Avenue, Apt. #3, Gillette, WY
/sa

33 FMSHRC Page 945

82718

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

April 21, 2011
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING

Docket No. PENN 2004-158
A.C. No. 36-08746-26477 LVY

V.

Quecreek No. 1 Mine

PBS COALS, INC.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
MUSSER ENGINEERING, INC.,
Respondent

CIVIL PENALTY PROCEEDING

Docket No. PENN 2004-152
A. C. No. 36-08746-26478 KQN
Quecreek No. 1 Mine

DECISION ON REMAND
Before: Judge Lesnick
These consolidated civil penalty proceedings brought pursuant to the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) (hereinafter the "Mine Act" or "the
Act"), have been remanded by the Commission for reassessment of the civil penalty assessed
against PBS Coals, Inc. ("PBS") for a violation arising from the July 24, 2002 nonfatal
entrapment of nine miners for three days at the Quecreek No. 1 Mine, located in Somerset,
Pennsylvania. Musser Engineering, Inc., 32 FMSHRC 1257 (Oct. 2010). The miners broke
through from the Quecreek mine to the abandoned workings of an adjacent mine that was full of
water. They did so in reliance upon an inaccurate mine map prepared by PBS, which was in tum
based on a map prepared by Musser Engineering, Inc. ("Musser"). Water from the abandoned
mine flowed forcefully into the Quecreek mine and entrapped the miners. The Secretary of
Labor's Mine Safety and Health Administration ("MSHA") cited PBS and Musser for violating
33 FMSHRC Page 946

30 C.F.R. § 75.1200, which requires coal mine operators to keep on the mine site "an accurate
and up-to-date map of such mine drawn on scale."

On cross motions for summary decision, I concluded that PBS and Musser violated
section 75.1200 as alleged by the Secretary. Black Wolf Coal Co., 28 FMSHRC 699, 709, 716
(July 2006) (ALJ). As to the civil penalties proposed by the Secretary, there remained
outstanding questions of material fact that precluded summary decision. Id. at 711, 717. After
the matter went to hearing, I concluded that PBS and Musser acted in a grossly negligent manner,
that the violations they committed were of the highest gravity, and that imposition of the
maximum penalties provided for in the Mine Act was appropriate. PBS Coals, Inc., 30
FMSHRC 1087, 1095-96 (Nov. 2008).
The Commission granted petitions for discretionary review filed by PBS and Musser. In
a two-to-one vote, the Commission found that Musser was a mine operator because it provided
more than de minimis engineering services to PBS in relation to the Quecreek No. 1 Mine.
Musser Engineering, Inc., 32 FMSHRC 1257 at 1266-1270 (Oct. 2010) (opinion of
Commissioner Cohen, joined by Chairman Jordan). In another two-to-one vote, however, the
Commission found that Musser's "preparation of the Pennsylvania environmental permit map
was too attenuated a circumstance to justify imposition ofliability for the erroneous mine map
under 30 C.F.R.§ 75.1200, even-though the location and boundaries of the Harrison No. 2 Mme
were identical on both maps. Musser was not involved with the preparation or submission of the
section 75.1200 mine map to MSHA. It had no direct control over the submission of the map to
MSHA." Id. at 1275-1279 (opinion of Commissioner Cohen, joined by Commissioner Duffy).
Although the finding that Musser is not liable under the Mine Act is the faw of the case,
at least so iong as it survives any appeals that might be taken, I respectfully take issue with what I
view as a usurpation by the Commission majority of my role as fact :finder. 1 In its decision to
absolve Musser of any liability under the Mine Act, the Commission majority did not articulate
the standard of review under which it reviewed my decision and reached its determination,
though Commissioner Jordan, writing in dissent, states quite accurately in my view that the
majority "conclu[des] that substantial evidence does not support the judge's determination that
Musser can be held liable." Id. at 1287.
I found Musser liable under binding legal precedent stating that a mine operator who is an
independent contractor can be held liable for violative conditions over which it exercises some
control or supervision. Secy ofLabor v. Nat'/ Cement Co. of California, 573 F.3d 788, 795
(D.C. Cir. 2009). I based this finding on undisputed facts stipulated to by the parties as to the
degree of control Musser exercised over the ultimate mapping of the Quecreek No. 1 Mine. 28
FMSHRC at 715. The Commission majority, however, summarily dismisses my finding because
it is ''based on the concept of foreseeability." Musser, at 1277. The Commission majority goes

1

As precedent for my commenting upon the Commission's dismissal of Musser, see
Speed Mining, Inc., 28 FMSRHC 773, 773-774 (Sept. 2006).
33 FMSHRC Page 947

on to conclude that "[i]f unforeseeable conduct may not be used as a defense to liability under the
Mine Act, then conversely, the foreseeability of injury caused by an actor's conduct should not
generally be relevant to establish liability [under the Mine Act]." Id. at 22. I could not disagree
more with this non sequitor. fu fact, the exact opposite is true. While unforeseeability of injury
is not a defense to liability, foreseeability of injury is evidence of liability. This is so because
strict liability subsumes the lesser standard of negligence. Consequently, while foreseeability of
the potential injury caused by an operator's conduct need rarely, if ever, be addressed where strict
liability applies, such evidence of negligent conduct cannot be ignored to absolve Musser of
liability.
What the Commission majority ignores in formulating its broad pronouncement is that
this case involves an engineering firm that prepared an inaccurate map that was used as a
template for future maps. So long as maps have been made, map makers have held in their hands
the fates of countless persons. This "control" is an inherent part of making a map. It strikes me
as nonsensical that a map maker should be absolved of responsibility for preparing an inaccurate
map because a finding of liability necessarily rests to some degree upon facts establishing that
they had actual knowledge that inaccuracies in their map might at some future date lead to
catastrophic consequences. Inaccurate maps are, by definition, ticking time bombs, and in fact,
the law generally holds map makers to producing maps that "accurately depict what they purport
to show" so as to avoid catastrophe. See Reminga v. United States, 631F.2d449, 452 (6th Cir.
1980) (holding the federal government liable for the death of a pilot who relied upon an .
inaccurate aeronautical c:hart produced by the Federal Aviation Administration). I found that the
facts here established that Musser knew that if it provided PBS an inaccurate map of the
Quecreek No. 1 Mine, catastrophe could ensue. After all, Musser was acting on behalf of
companies it knew were in the business of the underground mining of coal - if only by virtue of
the names of the companies: PBS Coals, Inc. and BJack Wolf Coal Co. To suggest that Musser
could not foresee the uses to which its map would be put by companies who chose to identify
themselves V,Vith the word "coal" in their corporate names is simply hard to swallow. 2 To suggest
that such foreseeability is irrelevant because Musser is held to a higher standard of strict liability
1s mcongruous.
The Commission majority cites a case arising under section 404 of the Clean Water Act, ·
33 U.S.C. § 1344, for the broad proposition that engineering firms should not be found liable
when "the firm's work was too attenuated from potential violations arising from the construction
work performed [by the firm]." 32 FMSHRC at 1279 (citing UnitedStates v. Sargent County
Water Resource Dist., 876 F. Supp. 1081, 1088-89 (D. N.D. 1992)). However, as even the
Commission notes, unlike the Clean Water Act, the Mine Act imposes strict liability against the

2

Although the majority opinion states that "[c ]learly, PBS knew what Musser knew with
regard to the boundaries of the Harrison No. 2 Mine," Tr. 144-46, one of these two
Commissioners states elsewhere in his dissent: "Moreover, whatever personal doubts Mr. Lucas
[a technical assistant employed by Musser] might have had, his testimony does not indicate that
these concerns were shared with PBS." Musser, at 1298.
33 FMSHRC Page 948

operator of a mine in which a violation occurs. Despite this substantial difference in the two
regulatory schemes, even if the concepts governing Clean Water Act liability had any relevance to
Mine Act liability, the District Court case the Commission majority cites as having a bearing on
this case is distinguishable on a number of grounds. Sargent County in North Dakota hired
Moore, an engineer, and Radniecki Construction Co. to perform work on a drainage ditch that
bisected three sloughs. 876 F. Supp. at 1084. Although Moore "provided drawings to the County
... [t] he record shows conclusively that Moores drawings were not relied upon by the
contractor [Radniecki Construction]." Id. at 1088 (emphasis added). Nor did Radniecki rely
upon stakes placed by Moore. Id. at 1089. Clearly, here, it is beyond dispute that PBS relied very
heavily upon the mapping done by Musser. In addition, the Sargent County case did not involve
the lives of workers placed in the utmost peril by a string of events and failures to act set in
motion by the preparation of an inaccurate map, and should not be relied upon for controlling
guidance.
This record offers substantial evidence for the conclusion that Musser had sufficient
control over the ultimate contents of the section 75.1200 map, at least at it pertained to the
adjacent workings. 3 When the Commission dismissed my .findings, its determination, in my view,
set aside the settled principle of law that the Commission may not "substitute a competing view of
the facts for the view [an] ALJ reasonably reached." Donovan ex rel. Chacon v. Phelps Dodge
Corp.;709 F.2d 86, 92 (D.C. Cir. 1983).
A unanimoiis Commission also remanded this case to me for the purpose reassessing a
penalty against PBS. The Commission explained: "In finding that the $55,000 penalty was
appropriate considering the size of PBS's business and its ability to stay in business, the judge
erroneously based his conclusion on the stipulations, which were entered into on the basis that the
penalty would be $5,000. It is apparent that, given the judge's substantial increase in penalties for
PBS, he did not give PBS an adequate opportunity to address the two criteria once t.l1e proposed
penalty was inc;reased." Musser, at 1290.
After the parties were directed to address these two points, the Secretary stated in an email
that "PBS and the Secretary have agreed to enter into the following stipulation: 'Payment of a

3

As Chairman Jordan noted in her dissent, the record provides substantial evidence for
the conclusion that "Musser was in a position to prevent the errors on the section 75.1200 map
because Musser created, certified, and sealed the permit map on which the section 75.1200 map
was based. Musser knew that even though its map would not specifically be submitted to MSHA
for the requirements of section 75.1200, the research and plotting of the Harrison No. 2 Mine and
the hydraulic barrier line would be used in creating future maps of the Quecreek No. 1 Mine. By
sealing the permit map, Musser verified the map's accuracy. 28 FMSHRC at 716." M.usser, at
1277.
33 FMSHRC Page 949

$55,000 penalty would not affect Respondent PBS' ability to remain in business. "'4 I therefore
find that imposition of a penalty in the amount of $55,000 will not affect the ability of PBS to stay
in business.
The parties also provided data on the size of PBS which are not relevant to determining
the company's size for purposes of assessing a penalty. The data relate to production, but PBS
does not produce coal, so the data are necessarily comprised of zeros. Instead, PBS performed
engineering and permitting work at the Quecreek mine. For purposes of assessing a penalty, I find
that in light of its ability to pay a penalty of $55,000, PBS is a medium sized operator, and that a
penalty of $55,000 is appropriate to its size.
Although in light of these findings, I have followed the directions set forth in the
Commission's remand order, I note that when the Secretary stated in her reply brief that a penalty
of $55,000 was warranted, the burden was placed upon PBS to file an objection and offer of proof
that such an amount would affect its ability to stay in business. The company's failure to do so
led me to presume that no such effect would occur, this in keeping with well established
Commission precedent. Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983) ("[i]n the
absence of proof that the imposition of authorized penalties would adversely affect [an operator's]
ability to continue in business, it is presumed that no such adverse [e]ffect would occur."), ajf'd
763 F.2d 1147 (7th Cir. 1984); accord Broken Hill Mining Co., 19 FMSHRC 673, 677 (Apr.
1997); Spurlock Mining Co., 16 FMSHRC 697, 700 (Apr. 1994).~

4

Email from Timothy Williams, Senior Trial Attorney, U.S. Department of Labor, to
Chief Judge Robert J. Lesnick, copy to Ralph H. Moore, attorney for PBS Coals, Inc. and Marco
M. Rajkovich, attorney for Musser Engineering, fuc. (November 12, 2010, 19:35 MST} (on file
with FMSHRC).
5

By the Commission's logic, a judge is barred in most cases from raising a penalty
unless the Secretary so moves -- or the judge will face a remand. As any contested penalty.may
be raised and subjected to a hearing de novo, any operator should be aware that once contested,
any penalty may fall to $0 or be raised to the maximum by the Judge sua sponte, which, in this
case, was $55,000. The notion that the company should have no expectation of paying a penalty
higher than that initially recommended by MSHA invites the increased contest of penalties.

33 FMSHRC Page 950

ORDER
Consistent with this Decision, IT IS ORDERED that PBS Coals, Inc., shall pay a total
civil penalty of $55,000.00 for the violation of section 75.1200 set forth in Citation No. 7322488.
Payment is to be made to the Mine Safety and Health Administration within 40 days of the
date of this Decision. Upon timely receipt of payment, the captioned civil penalty matters ARE
DISMISSED.

Robert J. Lesnick
Chief Administrative Law Judge
Distribution: (Certified)
Timothy Williains, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway~ Suite
1600, Denver, CO 80202-5710

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty
Avenue, Pittsburgh, PA 15222
Marco M. Rajkovich, 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., 22nd Floor, Arlington, VA 22209-2296

33 FMSHRC Page 951

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, NW, SUITE 9500
WASHINGTON, DC 20001

April 27, 2011
MARFORK COAL COMPANY, INC.,
Contestant

CONTEST PROCEEDING
Docket No. WEVA2009-1367-R
Order No. 6623515; 0410212009

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

Mine ID: 46-09091
Mine: Horse Creek Eagle

CNIL PENALTY PROCEEDINGS

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

Docket No. WEVA 2008-386
A.C. No. 46-08297-133173-02

v.

Mine: White Queen

MARFORK COAL COMPANY, INC.
Respondent

Docket No. WEVA 2008-717
A.C. No. 46-09092-138615-02
Mine: Allen PowelJton Mine
Docket No. WEYA 2008-719
A.C. No. 46-09091-138614-02
Mine: Allen Powellton Mine
Docket No. WEYA 2008-720
A.C. No. 46-08837-138612
Mine: Coon Cedar Grove
Docket No. WEYA 2008-1094
A.C. No. 46-09048-146206--02
Mine: Slip Ridge Cedar Grove
Docket No. WEYA 2008-1126
A.C. No. 46-08837-146204

33 FMSHRC Page 952

Mine: Coon Cedar Grove
Docket No. WEVA 2008-1130
A.C. No. 46-09091-146208-02
Mine: Horse Creek Eagle
Docket No. WEVA 2008-1187
A.C. No. 46-08837-149678
Mine: Coon Cedar Grove Mine
Docket No. WEVA2008-1391
A.C. No. 46-09193-153039
Mine: Parker Peerless
DocketNo. WEVA2008-1460
A.C. No. 46-09091-153033
Mine: Horse Creek Eagle
DocketNo. WEVA 2008-1466
A.C. No. 46-08297-153023-02
Mine: White Queen
Docket No. WEVA 2009-9
A.C. No. 46-09193-162143
Mine: Parker Peerless Mine
Docket No. WEVA 2009-268
A.C. No. 46-08315-164914
Mine: Brushy Eagle
Docket No. WEVA 2009-270
A.C. No. 46-09092-164922-01
Mine: Allen Powellton

33 FMSHRC Page 953

Docket No. WEVA 2009-271
A.C. No. 46-09092-164922-02
Mine: Allen Powellton
Docket No. WEVA 2009-272
A.C. No. 46-09193-164927-01
Mine: Parker Peerless Mine
Docket No. WEVA 2009-273
A.C. No. 46-09193-164927-02
Mine: Parker Peerless
Docket No. WEVA 2009-452
A.C. No. 46-09048-167882
Mine: Slip Ridge Cedar Grove Mine
Docket No. WEVA 2009-453
A.C. No. 46-09193-167889
Mine: Park Peerless Mine
Docket No. WEVA 2009-459
A.C. No. 46-08315-167873
Mine: Brushy Eagle
Docket No. WEVA 2009-460
A.C. No. 46-08551-167877
Mine: Marsh Fork Mine
Docket No. WEVA 2009-552
A.C. No. 46-09193-170811-01
Mine: Parker Peerless
Docket No. WEVA 2009-553
A.C. No. 46-09193-170811-02

33 FMSHRC Page 954

Mine: Parker Peerless
Docket No. WEVA 2009-625
A.C. No. 46-08315-170794
Mine: Brushy Eagle
Docket No. WEVA 2009-626
A.C. No. 46-08297-170793
Mine: Brushy Eagle
Docket No. WEVA 2009-627
A.C. No. 46-08837-170800-01
Mine: Coon Cedar Grove
Docket No. WEVA 2009-628
A.C. No. 46-08837-170800-02
Mine: Coon Cedar Grove
Docket No. WEVA 2009-630
A.C. No. 46-09091-170805
Mine: Horse Creek Eagle
Docket No. WEVA 2009-631
A.C. No. 46-09092-170806
Mine: Allen Powellton
Docket No. WEVA 2009-718
A.C. No. 46-08315-173687
Mine: Brushy Eagle
Docket No. WEVA 2009-732
A.C. No. 46-09048-173692
Mine: Slip Ridge Cedar Grove

33 FMSHRC Page 955

Docket No. WEVA 2009-902
A.C. No. 46-08297-176257
Mine: White Queen
Docket No. WEVA 2009-903
A.C. No. 46-08315-176258
Mine: Brushy Eagle
Docket No. WEVA 2009-904
A.C. No. 46-08374-176259
Mine: Marfork Processing
Docket No. WEVA 2009-906
A.C. No. 46-08551-176261-02
Mine: Marsh Fork Mine
Docket No. WEVA 2009-907
A.C. No. 46-08837-176262
Mine: Coon Cedar Grove Mine
Docket No. WEVA 2009-909
A.C. No. 46-09048-176264-02
Mine: Slip Ridge Cedar Grove
Docket No. WEVA 2009-910
A.C. No. 46-09092-176267
Mine: Allen Powellton
Docket No. WEVA 2009-1045
A.C. No. 46-08297-178767
Mine: White Queen
Docket No. WEVA 2009-1046
A.C. No. 46-08315-178768

33 FMSHRC Page 956

Mine: Brushy Eagle
Docket No. WEVA 2009-1047
A.C. No. 46-08374-178769
Mine: Marfork Processing
Docket No. WEVA2009-1049
A.C. No. 46-09048-178773-02
Mine: Slip Ridge Cedar Grove
Docket No. WEVA 2009-1052
A.C. No. 46-08551-178770
Mine: Marsh Fork
Docket No. WEVA 2009-1054
A.C. No. 46-09092-178776
Mine: Allen Powellton Mine
Docket No. WEVA 2009-1381
A.C. No. 46-09193-181461
Mine: Parker Peerless
Docket No. WEVA 2009-1422
A.C. No. 46-09092-184531
Mine: Allen Powellton Mine
Docket No. WEVA2009-1425
A.C. No. 46-08837-184525
Mine: Coon Cedar Grove
Docket No. WEVA 2009-1426
A.C. No. 46-09091-184530
Mine: Horse Creek Eagle

33 FMSHRC Page 957

Docket No. WEVA 2009-1463
A.C. No .. 46-08551-184520
Mine: Marsh Fork
Docket No. WEVA 2009-1464
A.C. No. 46-09048-184528
Mine: Slip Ridge Cedar Grove
Docket No. WEVA 2009-1693
A.C. No. 46-09193-187356
Mine: Parker Peerless
Docket No. WEVA 2009-1797
A.C. No. 46-09048-190388
Mine: Slip Ridge Cedar Grove
Docket No. WEVA 2009-1799
A.C. No. 46-09193-190395
Mine: Parker Peerless
Docket No. WEVA 2009-1881
A.C. No. 46-09048-193231
Mine: Slip Ridge Cedar Grove
Docket No. WEVA 2009-1885
A.C. No. 46-08297-193226
Mine: White Queen
Docket No. WEVA 2009-1886
AC. No. 46-08315-193227
Mine: Brushy Eagle
Docket No. WEVA 2009-1887
A.C. No. 46-08551-193229

33 FMSHRC Page 958

Mine: Marsh Fork
·Docket No. WEVA2010-36
A.C. No. 46-08551-197139
Mine: Marsh Fork
Docket No. WEVA2010-39
A.C. No. 46-09048-197153
Mine: Slip Ridge Cedar Grove
Docket No. WEVA 2010-40
A.C. No. 46-09193-197159
Mine: Parker Peerless
Docket No. WEVA 2010-59
A.C. No. 46-09091-197155
Mine: Horse Creek Eagle
Docket No. WEVA 2010-99
A.C. No. 46-08315-197136
Mine: Brushy Eagle
Docket No. WEVA2010-100
A.C. No. 46-09092-197156
Mine: Allen Powellton
Docket No. WEVA2010-163
A.C. No. 46-08315-200289
Mine: Brushy Eagle
Docket No. WEVA2010-164
A.C. No. 46-08374-200290
Mine: Marfork Processing

33 FMSHRC Page 959

Docket No. WEVA2010-165
A.C. No. 46-08551-200293
Mine: Marsh Fork
Docket No. WEVA2010-166
A.C. No. 46-09048-200301
Mine: Slip Ridge Cedar Grove
Docket No. WEVA 2010-325
A.C. No. 46-09193-203774
Mine: Parker Peerless
Docket No. WEVA 2010-370
A.C. No. 46-08551-203767
Mine: Marsh Fork
. Docket No. WEVA 2010-371
A.C. No. 46-09048-203769
Mine: Slip Ridge Cedar Grove
Docket No. WEVA 2010-372
A.C. No. 46-09091-203770
Mine: Horse Creek Eagle
Docket No. WEVA2010-373
A.C. No.46-09092-203771-01
Mine: Allen Powellton
Docket No. WEVA2010-374
A.C. No. 46-09092-203771-02
Mine: Allen Powellton
Docket No. WEVA 2010-513
A.C. No. 46-08315-206643

33 FMSHRC Page 960

Mine: Brushy Eagle
Docket No. WEVA 2010-514
A.C. No. 46-08551-206645
Mine: Marsh Fork
Docket No. WEVA2010-516
A.C. No. 46-09048-206650
Mine: Slip Ridge Cedar Grove
Docket No. WEVA2010-518
A.C. No. 46-09091-206651-02
.Mine: Horse Creek Eagle
Docket No. WEVA 2010-519
A.C. No. 46-09092-206652
Mine: Allen Powellton
Docket No. WEVA 2010-586
A.C. No. 46-09048-208972
Mine: Slip Ridge Cedar Grove
Docket No. WEVA 2010-587
A.C. No. 46-09091-208974
Mine: Horse Creek Eagle
Docket No. WEVA 2010-616
A.C. No. 46-09193-208978
Mine: Parker Peerless
Docket No. WEVA 2010-669
A.C. No. 46-08315-208967
Mine: Brushy Eagle

33 FMSHRC Page 961

DECISION APPROVING SETTLEMENT
Before: Judge Feldman
These captioned proceedings are before me based upon a petition for assessment of
civil penalty filed pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977
(the Act). The Secretary has filed a motion to approve a comprehensive settlement agreement
and to dismiss the 83 captioned dockets. A reduction in total civil penalty from $784,659.00
to $627,714.00 is proposed.
The specific settlement terms are as noted in the comprehensive settlement agreement
appended to the electronic version of this decision approving settlement, and posted online at the
Commission's website: http://www.fmshrc.gov. The above captioned contest docket has been
resolved by the terms of the comprehensive settlement agreement. The originally assessed and
agreed upon civil penalties for each docket are as follows:

Docket No.

Originally Assessed Penalty

Proposed Settlement

WEV A 2008-386

$425.00

$425.00

Vo/EVA 2008-717

$1,009.00

$610.00

WEVA2008-719

$499.00

$499.00

WEV A 2008-720

$722.00

$615.00

WEV A 2008-1094

$392.00

$392.00

WEVA 2008-1126

$1,752.00

$1,171.00

V..'EVA 2008-1130

$582.00

$582.00

WEVA 2008-1187

$263.00

$263.00

WEVA 2008-1391

$968.00

$688.00

WEVA 2008-1460

$1,457.00

$1,457.00

WEVA 2008-1466

$392.00

$392.00

WEVA2009-9

$615.00

$476.00

WEVA 2009-268

$5,555.00

$3,511.00

WEVA 2009-270

$499.00

$499.00

WEVA 2009-271

$2,980.00

$2,245.00

WEVA 2009-272

$811.00

$300.00

WEVA 2009-273

$285.00

$285.00

33 FMSHRC Page 962

WEYA 2009-452

$53,563.00

$42,420.00

WEYA 2009-453

$5,549.00

$5,231.00

WEYA 2009-459

$12,644.00

$10,333.00

WEYA 2009-460

$9,275.00

$4,830.00

WEYA 2009-552

$8,405.00

$8,038.00

WEYA 2009-553

$100.00

$100.00

WEYA 2009-625

$10,003.00

$4,900.00

WEYA 2009-626

$9,158.00

$9,158.00

WEVA 2009-627

$585.00

$300.00

WEVA 2009-628

$392.00

$175.00

WEVA 2009-630

$9,128.00

$7,661.00

WEYA 2009-631

$4,549.00

$4,159.00

WEVA2009-718

$8,893.00

$2,000.00

WEVA 2009-732

$1,746.00

$1,746.00

WEVA 2009-902

$6,617.00

$6,617.00

WEYA 2009-903

$17,594.00

$8,800.00

WEVA 2009-904

$1,620.00

$1,240.00

WEVA 2009-906

$65,735.00

$49,995.00

\VEVA 2009-907

$8,848.00

$5,136.00

WEVA 2009-909 ·

$26,971.00

$23,650.00

WEVA 2009-910

$3,912.00

$2,704.00

WEVA 2009-1045

$2,282.00

$2,282.00

WEVA 2009-1046

$25,840.00

$14,901.00

WEVA2009-1047

$460.00

$460.00

WEVA 2009-1049

$15,793.00

$9,696.00

WEVA 2009-1052

$35,577.00

$29,608.00

WEVA 2009-1054

$5,785.00

$5,785.00

WEVA2009-1381

$30,176.00

$24,472.00

WEVA 2009-1422

$8,031.00

$6,587.00

33 FMSHRC Page 963

WEV A 2009-1425

$1,002.00

$818.00

WEVA 2009-1426

$21,506.00

$19,208.00

WEVA 2009-1463

$2,901.00

$2,901.00

WEVA 2009-1464

$15,752.00

$12,356.00

WEVA 2009-1693

$1,597.00

$1,597.00

WEVA 2009-1797

$277.00

$277.00

WEVA 2009-1799

$76,599.00

$59,650.00

WEVA 2009-1881

$2,665.00

$2,162.00

WEVA 2009-1885

$127.00

$127.00

WEVA 2009-1886

$4,946.00

$4,946.00

WEVA 2009-1887

$38,345.00

$34,036.00

WEVA2010-36

$4,329.00

$4,329.00

WEVA 2010-39

$2,442.00

$2,442.00

WEVA 2010-40

$10,761.00

$9,844.00

WEVA 2010-59

$12,392.00

$11,203.00

WEVA 2010-99

$6,956.00

$5,078.00

WEVA 2010-100

$16,894.00

$16,056.00

WEVA 2010-163

$3,143.00

$1,700.00

WEVA 2010-164

$2,138.00

$1,846.00

WEVA 2010-165

$13,583.00

$12,572.00

WEVA 2010-166

$6,628.00

$5,971.00

WEVA 2010-325

$21,442.00

$21,442.00

WEVA 2010-370

$5,158.00

$5,158.00

WEVA2010-371

$3,419.00

$2,746.00

WEVA 2010-372

$100.00

$100.00

WEVA 2010-373

$2,473.00

$2,473.00

WEVA2010-374

$3,888.00

$3,888.00

WEVA2010-513

$9,302.00

$3,353.00

WEVA 2010-514

$6,918.00

$5,901.00

33 FMSHRC Page 964

WEYA20l0-516

$8,472.00

$8,472.00

WEYA 2010-518

$9,912.00

$7,330.00

WEYA 2010-519

$17,450.00

$15,659.00

WEY A 2010-586

$4,229.00

$4,229.00

WEYA 2010-587

$2,369.00

$2,369.00

WEY A 2010-616

$24,885.00

$22,113.00

WEYA2010-669

$11,222.00

$5,968.00

TOTAL

$784,659.00

$627,714.00

I have considered the representations and documentation submitted in these matters and
I conclude that the proffered settlement is appropriate under the criteria set forth in Section 11 O(i)
of the Act. WHEREFORE, the motion for approval of settlement IS GRANTED, and pursuant ·
to the parties' agreement, Marfork Coal Company, Inc. IS ORDERED to pay the $627,714.00
civil penalty within 30 days ofthis order in satisfaction of the 83 dockets _at issue. 1 Upon receipt of
timely payment, the captioned contest and civil penalty proceedings ARE DISMISSED.

Jerol Feldman
Administrative Law Judge
And for Judges Barbour, Bulluck, Gill, Lesnick, McCarthy,
Melick, Moran, Paez, Rae, Sippel, and Weisberger
Distribution:
Jonathan D. Marcus, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, YA 22209-2247
Sarah G. Korwan, Esq., Dinsmore & Shohl, LLP, Huntington Square, 900 Lee Stree4 #600,
Charleston, WV 25301
/jel

1

Payment should be sent to: Mine Safety and Health Administration, U.S. Department
of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please provide the
Docket Nos. and A.C. Nos. noted in the above caption along with the check(s).
33 FMSHRC Page 965

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, D.C. 20001-2021
Telephone No.: 202-434-9950
Facsimile No.: 202-434-9949

April 28, 2011
CAM MINING, LLC.,
Contestant

CONTEST PROCEEDINGS
Docket No. KENT 2008-390-R
Citation No. 7428799; 12/07/2007

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, MSHA,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINiSTRATION, MSHA,
Petitioner

Docket No. KENT 2008-391-R
Citation No. 7428800; 12/07/2007
Mine ID 15-17659
Three Mile Mine #1
CIVIL PENALTY PROCEEDING
Docket No. KENT 2008-942
A.C. No. 15-17659-145919

V.

Mine: Three Mile Mine #1
CAM MINING, LLC.,
Respondent

DECISION
Appearances: Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the Secretary of Labor;
Mark E. Heath, Esq., Spilman, Thomas, & Battle, PLLC, Charleston, West
Virginia, for Cam Mining, LLC.
Before:

Judge Weisberger

These cases are before me based upon Notices of Contest filed by the operator, Cam
Mining, LLC., ("Cam"), and Petitions for Assessment of Civil Penalty filed by the Secretary of
Labor ("Secretary.") These filings were in response to two citations the Secretary issued to
Cam alleging, respectively, violations of30 C.F.R. § 77.1000 (failure to follow the mines
ground control plan), and 30 CFR § 77.1303 (h) (failure to remove persons from a blasting area).
33 FMSHRC Page 966

The cases were scheduled and heard in Kingsport and Jonesboro, Tennessee. Posthearing, following the granting of various requests for extensions of time, each party filed a brief.
The parties were afforded an opportunity to file a reply brief Cam filed a reply brief; the
Secretary did not.
Subsequently, in a telephone conference call, the parties were informed that their initial
briefs did not clearly discuss various matters at issue. On December 29, 2010, an order was
issued ("Order'') directing the parties to file a post-hearing statement. On February 18, 2011, the
Secretary filed a "Response to Order," ("Response") and Cam filed a "Post-Hearing Statement"
("Statement").

I.

futroduction

Cam operates the Three Mile Mine #1, a surface mine. As part of Cam's normal coal
mining process, surface material is removed by blasting. fu July 2007, 92 blasting holes had
been drilled, each approximately 20 feet deep. The holes, seven and seven eighths inches in
diameter, contained approximately ten feet of explosives. Bags of dirt materials were placed in
some of the holes to limit the explosive force and control the direction of the blast. The parties
stipulated that the "minimum hole spacing is 12 feet by 12 feet; the maximum is 25 feet by 25
feet." (Tr. 324-26). There was at least 18 feet of material beyond the first row of holes toward
the "free space of the open face." 1 (Tr. 424).
On July 16, 2007 at approximately 4:35 p.m., two shots were detonated in sequence along
the edge of the area in question. 2 These shots resulted in flyrock, 3 which traveled in excess of
1,570 feet, and struck a mechanic working in an equipment staging area, killing him instantly.
The Three Mile Mine had not had any previous incidents of material leaving the blasting
area, and there were no previous incidents of flyrock on the Three Mile Job.4

1

The parties stipulated regarding that the term "open face" means ''that it's daylight,
there's no longer material there." (Tr. 424).
2

The shots were referred to as"no spoil" shots, meaning the shot is designed so that rock
and overburden does not leave the permitted area boundary.
3

Flyrock is defined as ''material that leaves the blasting shot and the blasting area set up
by the blaster as a safety zone." (Joint Stipulation, Par. 6)
4Tue Three Mile Job is the site in question.
33 FMSHRC Page 967

II.

Citation No. 7428800
A.

Violation of Section 77.1000, supra

Citation No. 7428800 alleges a violation of section 77 .1000, supra, which provides that
"[e]ach operator shall establish and follow a ground control plan for the safe control of all
high.walls, pits and spoil banks to be developed after June 30, 1971 which shall be consistent
with prudent engineering design and will insure safe working conditions. The mining methods
employed by the operator shall be selected to insure high.wall and spoil bank stability."
In her initial brief, the Secretary asserted that the ground plan "was not sufficient to
prevent the creation of :flyrock during the shot that fatally injured the victim." (Sec. Br. at 8).
Subsequently, in a response to the order issued on December 29, 2010,5 the Secretary asserts inter
alia, as follows:
"the ground control plan did not provide sufficient protection to assure proper drilling
and blasting precautions to provide adequate burden to prevent blowout of blast holes
along the blast site.''6
(Response p. 13).
The record contains three pages from the ground control plan for the mine at issue. (Gov.
Ex. 2 pp. 1-3). It does not appear that there is any material on these pages that pertain
specifically to certain drilling or blasting requirements or procedures to eliminate or minimize the
creation of flyrock. Nor does the plan stipulate specific steps to be taken to avoid, eliminate, or
cure conditions that could lead to flyrock. It is significant to note that Respondent does not refer
to any references in the ground control plan pertaining to avoidance of flyrock.

5

The order required the Secretary, inter alia to set forth in a statement whether she alleges
either that the ground control plan was insufficient, or that the operator's procedures violated the
plan. The Secretary was further ordered as follows:
The Secretary shall set forth the opinion or evidentiary facts adduced at the
hearing which support its position that either the plan was insufficient or that
certain procedures violated the plan. Each opinion or specific fact alleged shall be
set forth in a separately numbered sentence followed by a transcript page and
lines, or an exhibit number and page.
(Order).
6

In support of this assertion, the Secretary cites the testimony of her expert witness,
Edward Lobb. In this connection, Lobb indicated that he agreed that "drilling and blasting
precautions were not adequate.'' (Tr. 431 ).
33 FMSHRC Page 968

For all the above reasons, I find that, on its face, the ground control plan was not
sufficient to prevent flyrock. Therefore, I find that it has been established that Cam violated
section 75.1000, supra.
B.

Significant and Substantial

A "significant and substantial" violation is described in section 104(d)(l) of the Federal
Mine Safety and Health Act of 1977 ("Mine Act") as a violation "of such nature as could
significantly and substantially contribute to the cause and effect of a coal or other mine safety or
health hazard." 30 U.S.C. § 814(d)(l). A violation is properly designated significant and
substantial "if based upon the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious
nature." Cement Div., Nat'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981.)

In Mathies Coal Co., the Commission explained its interpretation of the term "significant
and substantial" as follows:

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.
6 FMSHRC 1, 3-4 (Jan. 1984).

fu United States Steel Mining Company, Inc., the Commission stated further as follows:
We have explained further that the third element of the Mathies formula "requires that the
Secretary establish a reasonable likelihood that the hazard contributed to will result in an
event in which there is an injury." U.S. Steel Mining Co., 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, 1574-75(July1984).
7 FMSHRC 1125, 1129 (Aug. 1985) (emphasis added).
As set forth above, the failure of the ground control plan to prevent flyrock resulted in the
hazard of flyrock, and constituted a violation of a mandatory standard. Further, it is uncontested
the blast at issue resulted in flyrock which caused a fatal accident. I thus find that the third and
fourth elements set forth in Mathies, supra, have been met. Accordingly, I find that the violation

33 FMSHRC Page 969

was significant and substantial.
C.

Penalty

In assessing a civil monetary penalty, the following factors must be considered: the
operator's history of previous violations, the appropriateness of such penalty to the size of the
operator, the operator's negligence, the effect on the operator's ability to continue in business,
the gravity of the violation, and the operator's demonstrated good faith. 30 U.S.C. §820(i).
The gravity of the violation was relatively high inasmuch as it resulted in a fatal injury.
There is not any evidence in the record that would argue for an increase or decrease in penalty
based upon consideration of Cam's history of violations, or its size. Nor is there any evidence
that the imposition of the penalty would have an adverse affect on Cam's ability to remain in
operation. Cam abated the violation, and there is not any evidence that it did not act in good faith
in abating the violation. There is not any evidence in the record that Cam either knew,
reasonably should have known, or had been put on notice that its operating ground control plan
was not sufficient. I thus find that the level of Cam's negligence was low.
For all of the above reasons, and placing significant weight on the low level of the
operator's negligence, I find that a penalty of $1,000 is appropriate for this violation.

ill.

Citation No. 7428799
A.

Violation of Section 77.1303(h), supra

Citation No. 7428799 alleges a violation of section 77.1303(h), supra, which provides
that "[a]ll persons shall be cleared and removed from the blasting area unless suitable blasting
shelters are provided to protect men endangered by concussion or flyrock from blasting." The
term "blasting area" is defined as ''the area near blasting operations in which concussion or flying
material can reasonably be expected to cause injury." 30 C.F. R. § 77.2(f).

In Hobet Mining & Constr. Co., the Commission held as follows:
To establish a violation of the standard based on a failure to clear and remove
all persons from the blasting area, the Secretary must prove that an operator has
failed to clear and remove all persons from the "blasting area" as that term is
defined in section 77 .2(f). This requires the Secretary to establish the factors
that a reasonably prudent person familiar with mine blasting and the protective
purposes of the standard would have considered in making a determination
under all the circumstances posed by the blast in issue. The Secretary must
then prove that the factors were not properly considered or employed.
9 FMSHRC 200, 202 (Feb. 10, 1987) (emphasis added).

33 FMSHRC Page 970

Basically, the Secretary is required to (I) establish factors that would have been used by a
reasonably prudent person to determine the blasting area and (2) prove that these factors were not
properly considered.

1.

Factors that would have been used by a reasonably prudent person

According to Arnold J. Stewart, Cam's supervisor of blasting coordinators, among the
factors to be considered are .the history of prior detonations, the distance between blast holes, the
depth of the holes, the presence of cracks in the material to be blasted, and the amount of
overburden. He indicated, in essence, that in the blasting sequence the closer the holes to be
blasted get to the face, the more the amount of overburden7 is reduced. The blasting area should
accordingly be extended to compensate for the decreased amount of overburden. He also opined
that the presence of cracks in the material to be blasted increase the chances of .flyrock.
Thomas Edward Lobb was offered by the Secretary as an expert in explosives and
blasting. 8 He testified that a determination of what constitutes a blasting area is based "[o]n
previous issuances offlyrock, the type of material thatthey're (sic.) blasting, the timing of the
individual blastholes, and any material that's in front of the blast, such as an old spoil." (Tr. 365)
It also is based on geology, the accuracy of the drilling, and the types of explosives being used
(Tr. 366).
The Secretary also infers from.the testimony of Lobb that the following factors are
pertinent and should be taken into account in setting the blasting area:
The blaster should have considered the diameter of the drill holes, the distance
between drill holes, the amount of the rock in front of the drill holes in the
empty pit, the timing of the blast; the amount of the room left by the first holes
for the material in the second holes to travel, any geological conditions such as
where the blast is located in relation to the crop line where the ore body meets
the air on the side of the mountain, and the presence of cracks which causes
loss of confinement in the blast.
(Response p. 4).
In addition, the Secretary relies on the following factors as set forth in the testimony of
Stewart as apparently affecting the production of flyrock as follows: the consistency of the
material being blasted, the location of the blast in relation to the distance to the open face, the
pattern of shots, the presence of muck in front of the first row of loaded holes, the depth of the

7

0verburden is the amount of material between a shot hole and the open face.

8

Respondent did not object to Lobb testifying as an expert in explosives and blasting.
33 FMSHRC Page 971

holes, and the amount material in front of the first holes to be blasted. (Jd.) 9
The above cited testimony by Stewart and Lobb was not impeached or contradicted. I
accordingly conclude that a reasonably prudent blaster would have used the factors testified to by
Stewart and Lobb, in determining the blasting area.
2. Factors that were not properly considered
The Secretary, in her Response, sets forth various physical factors that she alleges
"[t]he blaster should have considered." (Response p. 3) It might thus be inferred that she is
alleging that the factors "should have been considered," but were not. The factors alleged are as
follows:
The diameter of the drill holes, the distance between drill holes, the amount of
rock in front of the drill holes in the empty pit, the timing of the blast, the
amount of room left by the first holes for the material in the second holes to
travel, any geological conditions such as where the blast is located in relation
to the crop line where the ore body meets the air on the side of the mountain,
and the presence of cracks which causes loss of confinement in the blast.
(Response p. 3).
These factors are essentially those that a reasonable prudent blaster would have
considered as testified to by Lobb and Stewart at the hearing. Johnny Wayne Sexton, Cam's drill
and blasting coordinator, provided similar testimony in his deposition. (Gov. Ex. 8).

[CONTINUED ON NEXT PAGE]

9

0n direct examination, he was asked about the" ... kind of numbers [that he] would have
been interested in in the way the blast was set up before it was detonated," (Tr. 375). He
responded as follows: ''The diameter of the drill holes, the distance between the drill holes, the
amount of rock in front of the drill holes into the empty pit ... the burden, the amount of rock
between the drill holes and the air." (Tr. 375-376). I thus find, that the factors discussed by Lobb
do not relate specifically to the determination of the blasting area.
33 FMSHRC Page 972

However, neither of these individuals testified that any of the above factors were not considered
by Goble in determining the blasting area. 10
·

10

Tue Secretary in support of her assertion that these factors "should have been
considered" by the blaster, which implies that they were not, cites only Lobb's testimony on the
following pages of the transcript: "Tr. 375, Line 22 to 376 Line 5, Tr. 377, Lines 17-22, Tr. 387,
Lines 9-12 and Lines 22-25, Tr. 380, Lines 13-21." (Response p. 3). The cited testimony is as
follows:
A.

I would be looking for all of the construction details; the diameter of
the drill holes, the distance between the drill holes, the amount of rock
in front of the drill holes into the empty pitThe Court:
Excuse me. The amount of rock in front of the drill holes?
The Witness: Yes, sir. The burden, we call that.

(Tr. 375-76).
Q.
A.

Are there any other things you would be looking for on measurements?
Yes, ma'am. The timing of the blast is critical for the direction it goes.
The first holes that are initiated leave room for the next holes for the
material to go.

(Tr. 377).
The Court:
When it hits a crack, it reflects 80 percent?
The Witness: Yes, sir. Approximately 80 percent of it reflects.
The Court:
Which causes what?
The Witness: Which causes the explosives to not break the rock up really
good. It also can cause loss of confinement, which is typically
associated with flyrock.
{Tr. 380).
Q.
A.
Q.

That right?
Yes, ma'am. There were numerous rocks.
Where did you see the rocks that were involved in that?

{Tr. 387).
A.
Flyrocks in that area.
The Court:
Okay. The record isn't that clear as to whereMs. Taylor: I think I can clarify it,
(Tr. 387).

33 FMSHRC Page 973

3.

Further discussion

On July 16, 2007, John Chester Goble, II, was the blaster in charge of the shots at the site
in question, and was responsible for setting the blasting area. As such, it would appear that
Goble is the only individual who has personal knowledge of the blasting area that was
established, and the factors that were taken into account in establishing that area. 11 In this
connection, Respondent's proffered the deposition testimony of Goble who had been deposed by
the Secretary on December 9, 2009. 12 Goble's deposition 13 testimony indicates that he
determined the blasting area, and moved a "powder truck" to "a place that [he] thought was
outside the blast area." (Ex R3 p. 63). This truck was approximately 1,200 feet from the shots. 14
It thus might be inferred that Goble had determined the blasting area to be approximately 1,200
feet. The balance of his testimony regarding the setting of a blasting area and its distance from
the shot area is lacking in detail as to totally minimize its probative value. Thus, Goble
acknowledged that he determined the blasting area but was unable to remember what he
"consider[ed]" it to be (Ex. R-3 p. 64-65). Nor did he testify specifically as to the factors that he
took into account in setting the blasting area. Nor did any individual testify regarding any
conversations with Goble prior to the blast in which the latter stated what the blasting area was,
or what the factors were that were taken into account in designating the blasting area. 15

The above testimony is clearly not germane to the issue at bar, and certainly does not
establish that Goble did not consider any of the above physical factors in setting the blasting area.
11

Goble, who normally worked another shift, was assigned as a blaster to the blasting area
in question on July 16. The area had been blasted the day before but the blaster on that day, Eric
Belcher, was not called as a witness by either party to testify regarding the blasting area that he
had determined.
12

Neither party called Goble to testify at the hearing in this matter. Subsequent to the
hearing, in a telephone conference call on January 21, 2011, the parties were offered an
opportunity to request a supplemental evidentiary hearing to adduce further testimony. Neither
party made a request to supplement the record by having Goble testify.
13

The deposition was admitted as Exhibit R-3.

14

Also, Goble had instructed a foreman, John Colvin, where to locate his truck to "guard
the blast area" (Tr. 288). This truck was parked approximately 1,300 feet form the shot.
15

The Secretary did not adduce any detailed evidence setting forth a specific blasting area
that should have been determined prior to the blast. The only evidence relating to this issue
consists of the testimony of Lobb that he would have included the parking lot as part of the
blasting area. (Tr. 429) In response to a leading question, he agreed that this was "based on a
reasonably prudent standard." (Id) However, he did not testify further regarding any specific
factual basis for this opinion. Hence, it is not accorded much probative value.
33 FMSHRC Page 974

Based on all the above, I find that the record fails to establish that Goble, as the blaster, did
notconsider any of the above factors in determining the blasting area. To the contrary, as set
forth above, Goble testified that he noted the presence of cracks. This testimony was not
impeached, nor was it specifically contradicted by any witness who had personal knowledge
based on observations ofGoble's actions. Further, the Blast Report filled out by Goble prior to
the blast sets forth the following factors: the diameter of the blast holes, the distance between the
holes, the amount ofburden, and the "delay types." (Gov. Ex. L) As such, it might be inferred
that these factors were considered by Goble in setting the blasting area. 16
4.

The Secretary's arguments regarding failure of execution and Cam's
practices

Jn order to clarify and organize the record adduced at the trial, the order issued on
December 29, 2010 required the Secretary, inter alia, to set forth the specific factor/factors that it
alleges that were not properly considered by the operator followed by a citation to the record that
establishes that the alleged factor had not been considered. The Secretary alleged several factors
she considered to be "failures in execution:

[FOOTNOTE 15 CONTINUED)
I note that Goble testified in his deposition that, prior to the blast, for purposes of
ascertaining the powder factor and number of yards blasted, Goble took into account the depth of
the blast holes and the diameter of the drill bit, and applied a certain formula. (Ex. R-3 pp. 5053)
Also, the Re.port Of Blasting Operation ("Blast Report"), that had been prepared by Goble
prior to the blast onJuly 16 sets forth the following:
The total number of holes, the diameter of the holes, the distance between the
holes, the powder factor, the depth of"stemming," the type of material blasted,
the total spacing, the minimum number of holes "per delay," and maximum
weight of explosives "per delay."
(Gov. Ex. 1).

It thus might be inferred that a number of factors set forth above were considered by
Goble in making a determination as to the blasting area.
16

Jn addition, I note that there was not any history of previous flyrock at the site at issue.
Although the blasting area may not be based "solely" upon previous projections of flyrock or
lack thereof, it is a factor to be considered. See Hobet, supra, at 203.
33 FMSHRC Page 975

a.

Relevance of failures in execution and Cam's practices

The Secretary, in her response, incorporated by reference "failures in execution" set forth
on page nine ofMSHA's Physical Factors Report of the accident at issue. (Gov. Ex. 7 p. 9)
(emphasis added). This report sets forth the following "practices that should be reexamined prior
to blasting at this site" (id):
•

The drillers and blasters do not communicate together to construct the
blast as the blast was designed. . . .

•

Both drillers were drilling blastholes on a smaller pattern than was
reported on the blast records. . . .

•

Both drillers used their own judgment to determine the location of the
blastholes on the outside rows ofblastholes next to the high wall. ..

•

Blasters need to pay close attention to their high wall burdens ...

•

Surveying equipment is available to profile the high walls 17•••

(Gov. Ex. 7 pp. 9-10).
The Secretary also set forth the following as specific factors that were not considered:
a.

The blaster did not maintain communication with the driller;

b.

The blaster encountered cracks in the middle ofloading the shot but
kept no record of the location or size of the cracks ;

c.

The blaster failed to distribute the powder factor enough in the blast
because of his lack of knowledge of particulars relating to the drill
holes, cracks, voids, hole depth and dimensions. The powder
distribution is critical in determining the blast area;

d.

The Blaster did not measure the distance between the drill holes or
check each hole for voids or cracks as they were loaded;

e.

The blaster did not measure the amount of muck or spoil in front of the

17

According to the report, these practices should be reexamined "prior to blasting" at this
site. (Emphasis added) (id.) There is not any indication in the report that these reexaminations
should have been done in determining the blasting area. Further, for the reasons set forth below,
evidence of practices are not germane, and are not accorded any probative value.
33 FMSHRC Page 976

highwall prior to setting up the blast area;

f.

The blaster left the shot that day while the helpers loaded the holes. He
was gone for a time to show the mechanics where to put a handrail on
another powder truck. He was gone for about an hour that morning
while the helpers stemmed the holes that had been loaded;

g.

The blaster allowed for removal of muck or spoil from the pit after the
drill holes were loaded with explosives;

h.

The blaster did not measure or examine the distance between the first
set of drill holes and the edge of the highwall bench set for blasting;

i.

The loaders had undercut the drill bench while removing muck as was
evidenced by the physical factors from the blast.

J.

The blaster failed to distribute the powder used to execute the blast
evenly which resulted in a stiff blast;

k.

The blaster was focused on avoiding the rock rolling off the back of the
shot and leaving the permit zone;

1.

While the blaster did have a mirror for using to measure the shot, he did
not use the mirrors for each hole loaded; and

m.

The blaster failed to give the persons working in the parking lot area
directly in front of the shot notice that it was time for a blast

(Response pp. 5-7).
These factors and the "failures in execution" set forth in the Physical Factors Report
(Gov. Ex. 7 p. 9) refer to practices and actions as opposed to physical factors. As set forth by the
Commission in Hobet, supra at 202, the Secretary's burden at this stage is to establish "factors"
that would have been used by a reasonably prudent person in determining the blasting area. The
Commission clarified the "factors" to be considered "may include, but are not limited to, the
amount and type of explosives used, the depth of the holes that constitute the shot, the
topography, and the experience and prior experience of the blaster." Hobel, supra at 203. Thus,
it is clear based on these examples, that under Hobel, supra, the Secretary's burden relates to
establishing the physical conditions or factors that a reasonably prudent person would have
considered in determining the blasting area. As such evidence of practices or actions are not
germane and are not accorded any probative value.
b.

Whether the Secretary's assertions regarding specific practices

33 FMSHRC Page 977

have been established
Moreover, even assuming relevance of Cam's practices, the evidence fails to establish her
assertions as discussed below, infra.
1.

"The Blaster did not maintain communication with the
driller." (Response p.5).

The Secretary's assertion of a lack of proper communication is predicated upon the
testimony, inter alia, of Lobb who conducted an investigation of the accident at issue and
interviewed a number of the principals including "a driller and one of the blasters." (Tr. 392).
According to Lobb, these persons indicated different distances between the blast holes.
However, the record lacks critical information regarding the identity of these individuals, and the
specific statements they made. 18 Thus, Lobb's testimony is not accorded much weight.
The Secretary also relies on the testimony of a foreman, John Colvin, that the blaster was
responsible for instructing a driller how to drill. Colvin did not specifically testify to any lack of
communication between Goble and the driller. I thus find that Colvin's testimony does not
support an assertion that Goble did not communicate with the driller.
Also relied upon is the testimony of James Gregory Clevinger who worked the shift that
ended on the morning of July 16, 2007. However, he did not specifically testify regarding any
comilunication or lack of communication between Goble and the driller.
Considering all the above, I find that the evidence fails to establish any alleged failure by
the blaster to communicate with the driller.
11.

"It is alleged that the blaster failed to distribute the power
factor enough in the blast because of his lack of knowledge
of particulars relating to the drill holes. cracks. voids. hole
depth, and dimensions."(Response p. 6).

The record does not contain any factual support for this assertion. fu support of its
assertion the Secretary cites only the following testimony of Lobb:

18

MSHA's Report offuvestigation states only that "miners and mine management
officials, deemed to have knowledge of the facts regarding the accidents were interviewed on two
separate occasions." (Gov Ex 3 p. 2). Robert J. Newberry, MSHA's accident investigator listed
in the Report of fuvestigation, did not testify at all regarding any interviews with miners.
33 FMSHRC Page 978

A.

The powder distribution is the critical thing. Their powder factor that
they used was good, but their powder distribution wasn't distributed
enough.

(Tr. 474).
This testimony set forth Lobb's opinion that powder distribution was not distributed
"enough." (Id.) However, he did not indicate the factual basis for this opinion. More
importantly, Lobb did not adduce any facts regarding the blasters "lack of knowledge of
particulars relating to the drill holes, cracks, voids, hole depth and dimension as alleged by the
Secretary. (Response p. 6). Hence, I find that the record does not support this assertion.

m.

"[T]he blaster did not measure the distance between the
drill holes or check each hole for voids or cracks where
they were loaded." (/d.)

The Secretary's factual assertions are not supported by the testimony of any person with
personal knowledge of the asserted facts. As support for its assertion, the Secretary cites the
following testimony of Lobb:

· Q.

What significance did·you find in what you've heard about the
communication between the blaster and the driller?

A.

I did talk to a driller and one of the blasters, and no one could tell me
the same numbers for the blast that was initiated that was involved in
the accident. I've heard 15.feet. I've heard 18 feet.

The Court:

That is the distance between what and what, sir?

The Witness: Between the blast holes. On the blaster's report, it was
supposed to be 18 feet; and I've heard reports of 15 feet, 18 feet
and 16 feet, so ... And one person told me 14 feet.
By Ms. Taylor:

Q.

Then you said something about drilling blast holes in a smaller pattern
than was reported on the blast records?

A.

That's correct.

Q.

What lead you to believe that?

A.

Different people had different distances.

33 FMSHRC Page 979

(Tr. 392).
Q.

Did he take any measurements of the space between the holes?

A.

I can't remember that, no.

Q.

Did you ever see him measure the distance between the front, the open
space~ and the first row of holes?

A.

I didn't see him measure between holes.

(Tr. 248).
This testimony relates solely to a discrepancy between persons whom Lobb interviewed
regarding the spacing between holes. Neither of the individuals are mentioned by name, nor was
any testimony adduced from such individuals. Also, Lobb's testimony does not set forth any
facts, based on -personal knowledge, that Goble did not check for cracks or voids as the holes
were loaded with explosives.
The Secretary also cites the testimony of John Henry Holbrook, who helped Goble with
the shot on the date in question. Holbrook testified with regard to the taking of measurement5
by Goble as follows:
Q.

Did he take any measurements of the space between the holes?

A.

I can't remember that, no.

Q.

Did you ever see him measure the distance between the front, the open
space, and the first row of holes?

A.

I didn't see him measure between the holes.

(Tr. 248).
I find this testimony too ambiguous and thus not sufficient to meet the Secretary's
burden of establishing by a preponderance of clear and convincing evidence that the blaster did
not measure the distance between the holes. Also, for the same reasons, I find Holbrook's
testimony insufficient to contradict Goble's deposition testimony that he (Goble) checked the
blast holes for cracks, and sealed them with bags of dirt that he placed in the holes (Ex. R-3 pp.
32-35). I thus find that the Secretary has failed to establish the above assertion.
iv.

"[T]he blaster did not measure the amount of muck or spoil
in front of the highwall prior to setting up the blasting

33 FMSHRC Page 980

area." Gd.)
The Secretary cites Holbrook's testimony as the basis for its allegation that Goble failed
to measure the amount of muck as follows:

Q.

Did you ever see Mr. Goble get down in the area that was in front of the
first-below the first shot in the open shot

A.

No, not that I know of. I don't know.

(Tr. 254).
I find this testimony insufficient to contradict Goble's testimony that on the day of the
shot in issue he measured fifteen feet out from the first row of holes, and marked that distance
with colored boxes that he set out. (Ex. R-3 p. 26). I also note the following deposition testimony
of Goble:

Q.

So there is spoil that goes out at least fifteen feet in front of the
highwall that's going to be your first shot?

A.

Well, more than that, probably.

(Id.)
Thus, it can reasonably be inferred that Goble did take cognizance of at least fifteen feet
of spoil in front of the shots that he measured. I thus find that the Secretary has failed to
establish the above assertion.
v.

"[T]he blaster did not measure or examine the distance
between the first set of drill holes and the edge of the
highwall bench set for blasting." (Id.)

I note that Goble, in his deposition, set forth various measurements that he made
regarding the distance between the first set of drill holes and the edge of the highwall bench. The
Secretary has not presented the testimony of anyone with personal knowledge to contradict that
testimony. Therefore, I find that the Secretary has not established the above assertion.

vi.

"[T]he loaders had undercut the drill bench while
removing muck as was evidenced by the physical factors
from the blast." (Id.)

In support of this assertion the Secretary cites the testimony of Lobb as follows:" So the
procedures that I heard when I was at the mine site, as well as the observation of the area, left me
33 FMSHRC Page 981

the conclusion that a good portion of the highwall had been over-dug to get that much flyrock."
(Tr. 413). I find the testimony too vague and unspecific to establish the Secretary's factual
assertion of the Secretary regarding any action ofloaders. I thus find that the Secretary has failed
to establish the above assertion.
vu.

"[T]he blaster failed to distribute the powder used to
execute the blast evenly which resulted in a stiff blast."
il!!J_

In support of the above assertion the Secretary relies on Lobb's testimony as follows:
Q.

Does the powder factor play any role if you have a rigid pattern setup?

A.

The powder factor is important. It's been used for over 180 years for
blasting design, but, also, powder distribution is the important part of
blasting.
An example, if you put 1,000,000 tons of explosives under the middle
of a mountain and blow it up, you know, you could have a powder
factor like they used here of .5 or .5, and you wouldn't get a good break
on the mountain. But if you distribute that same powder in a thousand
blastholes, the rock would break uniformly, or more uniformly. So the
powder distribution is as important or more so than what the powder
factor is.

-Q.

Is there anything in the powder distribution in this blast that concerned
you?

A.

I think the powder distribution is too concentrated. In other words, the
holes are too big in diameter.

Q.

Too what? Answer: Too large a drill hole. Question: Why is that?

A.

Because the stiffness ratio that we just discussed is 1 instead of 3 to 4.

Q.

Why would it be necessary to have a less concentrated powder
distribution when you have that stiffness ratio?

A.

If we distribute the powder more evenly, then when the explosives
detonate, the intersecting cracks in the rock have less chance to break
up the blast forces and you have more uniform breakage of the rock and
a lot less potential for flyrocks. Question: Would one - Could you read
the last answer back, please. (The last answer was read back.) Okay.

33 FMSHRC Page 982

Q.

How would the powder distribution have been- in you opinion. if a
reasonably prudent blaster had done this blast, how would the powder
distribution, the design of the blast change?

A.

A reasonable prudent blaster should have used smaller drill hoes and
more of them. The powder factor was reasonable and the other
parameters of the burden and so forth were reasonable, but the holes
were too big for this area.

(Tr. 397-99).
I find this testimony unclear and confusing, and accord it little probative value. Further,
the testimony does nqt set forth with any degree of specificity the factual basis for the conclusion
asserted by the Secretary that the blaster failed to distribute the powder used to execute the blast
evenly. Nor does it provide any factual basis as to how the powder was actually distributed. J
thus find that the Secretary has failed to establish the above assertion.
vm.

"[T]he blaster was focused on avoiding the rock rolling
off the back of the shot and leaving the permit zone."
(Response p. 7).

ln support of the above assertion the Secretary relies on .Stewart's testimony as follows:

Q.

Is there some kind of violation with the Office of Surface Mining or
with the state DNR if you have rock that goes beyond the permit line?

A.

Yes, there are

Q.

And do you know what the ramifications of that is?

A.

It varies. It's according to the severity of the flyrock.

Q.

So is every rock that goes beyond the permit line considered flyrock?

A

Yes, if it leaves the permitted area.

Q. ·

You can get different amounts of civil penalties?

A.

Exactly.

Q.

Can it also be taken into consideration on granting further permits?

A.

Yes.

33 FMSHRC Page 983

Q.

As a blaster, do you take very careful consideration of where the permit
line is when you get close to it?

A:

Yes, I do.

Q.

Okay. Do you develop- and do you call all the shots that are close to
that permit line "no spoil shots"?

A.

Yes.

(Tr. 63).

I find that the above cited testimony fails to establish the Secretary's assertion of what
Goble was "focused on." (Response p. 7).
In the same fashion, The Secretary also relies on the following testimony by Stewart:
Q.

So you're getting the very last burden off you can_get without messing
up and going off permit there?

A.

Exactly. Question: So it's critical to 3tay and make it all go in one
direction; is that right?

A.

Yes.

(Tr. 91).

I find that the Secretary's assertion as to what Goble was focused on to be hypothetical
and without support in the record regarding his state of mind. I further find that the cited
testimony of Stewart relates solely to general blasting practices, and does not address the specific
factors not considered by Goble.

ix.

"[W]hile the blaster did have a mirror for using to measure
the shot, he did not use the mirrors for each hole loaded." (
Response p. 7).

In support of the assertion that Goble did not use the mirrors for each hole loaded, the
Secretary relies on the testimony of Holbrook who was present on the date in issue. Holbrook
was asked whether he did it for every hole and his answer is as follows: "I don't think he used
them on every hole, but he usually does." (Tr. 248). I find this testimony to be insufficient to
establish, by a preponderance of clear and convincing evidence, that Goble did not use mirrors in
every hole. I thus find that the above assertion has not been established.

33 FMSHRC Page 984

x.

"[T]he blaster failed to give the persons working in the
parking lot area directly in front of the shot notice that it
was time for a blast." (Response p. 7).

In support of this assertion the Secretary relies on the testimony of Terry Monroe Adams,
Jr. who was on the site on July 16 working with mechanics. He was asked whether anybody told
him or whether he heard on the CB" radio that there was going to be a blast. He answered as
follows: "nobody commented on it." {Tr. 265). This testimony certainly falls far short of
establishing that a notice was not given regarding a blast. Moreover, the fact that any warning
had not been communicated to Adams is not sufficient to negate the testimony of Goble, based
on his own action on the day in question, that he gave a siren warning and said into the CB radio:
"fire in the hole." (Ex. R-3 p. 66).
B.

Conclusion

·Based on all the above, I conclude that {l) the Secretary failed to establish a
preponderance of clear and convincing evidence the blasting area that was designated by Cam
prior to the blast, (2) the Secretary has failed to establish the specific blasting area that a
reasonably prudent person familiar with mine blasting would have established prior to the blast,
See Central Appalachian Mining, 29 FMSHRC 430 (June 2007) (ALJ); Austin Powder Co., 5.
FMSHRC 83, 122 (Jan. 1983) (ALJ), and. (3) The Secretary has failed to establish the specific.
physical factors that would have been used by a reasonable prudent blaster in establishing a
blasting area that were not considered by Cam.
For all these reasons, I conclude that the Secretary has failed to establish that Cam
violated section 77.1303(h), supra.

··ORDER
It is ordered that Citation No. 7428799 be dismissed. It is further ordered that within 30
days of this decision, Cam shall pay a civil penalty of $1,000 for the violation of section 77.1000,
supra

~ l,-_,Avram Weisberger
Administrative Law Judge

33 FMSHRC Page 985

Distribution (Via Certified Mail/Returned Receipt Requested) :
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456
Mark E. Heath, Esq., Spilman Thomas & Battle, PLLC, Spilman Center, 300 Kanawha Blvd.,
East, P.O. Box 273, Charleston, WV 25321-0273

/cmj

33 FMSHRC Page 986

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

April 29, 2011
CIVILPENALTYPROCEEDlNG

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

Docket No. WEVA2010-312
A.C. No. 46-07908-203763

v.
Mine: Big Mountain No. 16

PINE RIDGE COAL COMPANY,
LLC,
Respondent

DECISION
Appearances:

Jessica R. Hughes, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Petitioner;
Melissa M. Robinson, Esq., and Rodney W. Stieger, Esq., Charleston,
West Virginia, for Respondent.

Before:

Judge McCarthy

I. Statement of the Case
This case fa before me on a petition for assessment of civil penalty filed by the Secretary
of Labor ("Se~tary'')•. acting through the Mine Safety and Health Administration ("MSHA"),
against Pine Ridge Coal Company, LLC ("Pine Ridge" or "Respondent"), 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 a large mine called Big Mountain No. 16 in Boone County, West
Virginia. This case involves one section I 04(d)(l) Order No. 8093139 issued by MSHA
inspector Brandon Ellison on August 17, 2009, 1 alleging an unwarrantable failure to report a roof
fall accident to MSHA within 15 minutes under 30 C.F.R. § 50.10.
30 C.F.R. § 50.10 provides, inter alia, that the operator shall immediately contact MSHA
at once without delay and within 15 minutes once the operator knows or should know that an
accident has occurred ...." 30 C.F.R. 50.2(h)(8) defines accident to mean "[a]n unplanned roof
fall at or above the anchorage zone in active workings where roof bolts are in use; or, an
unplanned roof or rib fall in active workings that impairs ventilation or impedes passage."

1

All subsequent dates are in 2009, unless otherwise indicated.
33 FMSHRC Page 987

The condition specifically alleged in the August 17 Order is as follows:
"The mine operator has failed to immediately report a roof fall that occurred on 813-2009 that was above the anchorage zone. This fall pulled out 2 roof bolts and
damaged 2 roof bolt plates. The fall was in the 6 left face on the 020-0 MMU
and fell onto the continuous miner on the day shift. The fall measured 8' wide x
20' long x 7' high. Six foot torque tension bolts were being used in ths area. A
103 (k) Order was issued on 8-17-09 @ 1220 when discovered by MSHA to
protect the health and safety of the miners on the 020-0 mmu (East Section).
Reference order# 8093136. After the roof fall occurred, the operator has allowed
mining to continue on the East Section. Mine Management has engaged in
aggravated conduct constituting more than ordinary negligence by not
immediately reporting the fall on 8-13-09 within 15 minutes of learning of the
condition. This condition is an unwarrantable failure to comply with a mandatory
standard."
G. Ex. 1. 2

On August 20, said Order was modified based on the results ofMSHA's additional
investigation on August 18. The modified Order reads:
Upon further investigation, in addition to having a roof fall at or above the
anchorage zone in the #6 left face that pulled out 2 permanent roof support5 (roof
bolts). ventilation to the #6 face has beeri impaired due to the roof fall and the
severe adverse roof conditions in the area; The ventilation control in the form of a
line curtain is approximately 47' from the last row of roof bolts and approximately
75' from the unsupported face when measured with a digital range finder. Passage
of persons has also been impeded to the last row of roof bolts in the #6 entry.
This face area has not been examined by the operator since the occurrence of the
roof fall on August 13, 2009. A set of breaker posts dangering the #6 heading off
were. placed approximately midway from the mouth of#6 heading to the projected
#6 left cross cut due to the hazardous conditions present.
The 104(d)(l) Order alleged the gravity of the violation as no likelihood of injury, no lost
workdays, and non-significant and substantial (non-S&S), with one miner affected. Negligence
was alleged to be "'reckless disregard."
The parties stipulated to jurisdictional issues, authorized representative status, and the
authenticity of the violator data sheet in G. Ex. 1. Respondent's Answer to the Petition for Civil
Penalty denies the following: any violation; the validity of the proposed $2,000.00 civil penalty;
the unwarrantable failure finding; and the gravity and negligence findings, particularly "reckless
disregard."
An evidentiary hearing was held in Charleston, West Virginia. The parties introduced

2

1n this Decision, the Petitioner's or Government's exhibits are designated G. Ex.#,

Respondent's exhibits are designated R. Ex.#, and volumes one through three of the transcript
are designated as Tr. I, II, or ill, followed by the transcipt page number(s).
33 FMSHRC Page 988

testimony and docl,Uilentary evidence. Witnesses were sequestered.3
Respondent moved for partial summary judgment with respect to the unwarrantable
failure issue, contending that any violation was of a regulation and not a mandatory safety
standard. See Cyprus Emerald Res. Corp. v. FMSHRC, 195 F.3d 42, 45 (D.C. Cir. 1999).
Procedurally, the Secretary opposed the Respondent's motion as untimely filed.4 Substantively,
the Secretary argued that the original regulation was re-promulgated as a mandatory standard in a
December 8, 2006 Final Rule published pursuant to Title 1 of the Act. I reserved ruling at the
outset of the hearing, pending further briefing on the issue of whether MSHA gave fair notice of
its intention to enforce the § 50.10 reporting requirement as a mandatory standard.
For the reasons set forth below in Section ill A, I deny Respondent's motion for partial
summary decision and find that Respondent's failure to report the roof fall within 15 minutes of
its occurrence constitutes an unwarrantable failure to comply with a mandatory safety standard.
I increase the penalty from the proposed statutory minimum of $2,000.00 to $6,000.00.

On the entire record, including my observation of the demeanor of the witnesses,5 and
after considering the extensive post-hearing briefs and Respondent's reply brief, I make the
following:

II. Findings of Fact
· A.

The August 13 Unreported Roof Fall·

· . During the day shift on Thursday, August 13, Respondent had one miner crew, one bolt
·crew, four coal hauler operators and a scoop deploy~d on the. 020-0 MMU (East Section). (Tr.
II. 184, 242). John Pauley was the foreman in charge of.the East Section {Tr. II !80). J>auley
reported to erstwhile mine manager, Dave.Belcher, who _h;id b.oon promoted to mine .
superintendent by the time of the hearing. (Tr. Il 193-94, 298, 3.11). The whole East Section had
adyerse.roof conditions in evei·y entry· as Respondent drove.on the outcrop with low cover. (Tr.
· Il 243).6 There were very bad roof conditions and cracb acros.s the section, which were very·

3

Respondent' s direct examination of its witnesses was replete with leading questions,
despite repeated admonitions from the bench.
'1>rior to the hearing, I declined to dismiss the motion as untimely filed since Respondent
would likely raise the issue by way of alternative motion at hearing. The motion was held in
abeyance for further briefing and argument, particularly on the fair notice issue.
5

In resolving conflicts in testimony, I have taken into consideration the demeanor of the
witnesses, their interests in this matter, the inherent probability of their testimony in light of other
events, corroboration or lack of corroboration for testimony given, and consistency or lack
thereof within testimony of witnesses and between the testimony of witnesses.

6The immediate roof of the 8-10-foot coal bed being mined varied form less than a foot to
5 feet of shale. Above that was 5- 80 feet of sandstone. {Tr. II 379; Ex. 9, p. 2; R. Exh. 3, p. 1).
The mine had considerable subsidence and had been extensively undermined (Dorothy coal
33 FMSHRC Page 989

dangerous. (Tr. I 72-73, 76-77; Tr. III 433-34).
Steve Kinder was operating the high-voltage continuous mining machine remotely in the
20-foot wide No. 6 enb:y, turning the left cross cut. Lee Daniels was his helper. (Tr. II 190, 345;
Tr. ID 193). The primary air intake from the blowing ventilation system went from right (No. 6
entry) to left (No. 1 entry). (Tr. I 81; Tr. II 20, 345; Tr. III 46). Six-foot torque tension bolts with
24 inches ofresin or glue (grout) were used for roof support in the entry. (Tr. I 213-15, 249; Tr.
II 351; G. Ex. 9, p. 2 para 2(e); R. Exh. 3, p. 2, para. 2(e)). There were two parallel surface
cracks in the roof where the miner was taking the first cut in the No. 6 left cross cut. (Tr. II 22122). 7 Reflectors were hung two roof bolts back to indicate the red zone, 8 and to signal against
walking inby the danger area where cutting was taking place in unsupported top. (Tr. II 198,
223-24). Prior to the roof fall, a ventilation line curtain hung from a roof bolt about four feet
from the right rib and had been advanced to within three rows of the roof bolts where the No. 6
left cross cut was being turned. (Tr. II 225, 226, 345).
Toward_the end of the day shift, after several haulers had been loaded and the left
crosscut had been turned about 20 feet deep, a large piece of sandsfone fell between surface
subsistence cracks from unsupported top onto the drum of the contfnuous miner as it was cutting.
(Tr. II 186-87, 286-89, 353, 416; G. Ex. 8, p. 5). Although Kinder and Daniels were both
employed by Respondent at the time of the hearing, neither were called by Respondent to testify
about the fall. (Tr. II 222-23). Nor did the Secretary s~bpoena them or take their depositions.
Pauley was not present when the rock initially fell on the continuous miner. (Tr. II 221,
289). He was standing in the last open crosscut, where ventilation check flies were present,
about.60-70 feet away. (Tr. II 209-1 IJ). Pauley heard the fall~ however, and Kinder and Daniels
hollered. (Tr. ·II 211, 290). When Pauley approached, he noticed that the two miners were
visibly shaken up. (Tr. II 288, 290). Kinder and Daniels told him that a big rock fell out .
between the parallel cracks onto the continuous.miner as they took a cut. (Tr. Il 292) .. Contrary
to Order No. 8093139, which represented an approximation, I find that the height of the rock
varied between about 4.5 feet and 5.5 feet high, as set forth in R.. Ex. 10.

seam) and over-mined (Lewis Stockton) (Tr. II 436; G. Ex. 8, p. 4 and 6; R. Ex. 3, p.1), but had
no history ofliberating methane. (Tr. III 40, 43).
7

Belcher testified that similar parallel surface cracks existed across the entire East
Section. In addition, there was an unusual block of coal that had separated from the roof in the
No. 3 entry, and one could look over top of it to the next entry 100 feet away. Belcher had never
seen anything like that in 31 years of mining. Tr. II 354. Further, Belcher explained that it was
dangerous to mine where double parallel surface cracks were present, because rock was likely to
fall. See Tr. 350-51.
8

Belcher testified that when tramming the continuous miner, the red zone extended from
the end of the boom to the cutting head of the miner, but when mining coal, miners were allowed
to be in that area and a "red zone area is in an active working place." (Tr. II 364, 367).
33 FMSHRC Page 990

Pauley testified that the rock was not anchored to the roof and the entire rock fell in one
solid piece. (Tr. II 188, 210). Pauley, Kinder and Daniels collectively decided to raise the miner
head up against the roof and back the machine up so the rock could slide off the miner and fall to
the floor. (Tr. II 189, 288, 291, 294). Pauley testified that when they did so, the miner pulled or
dragged the rock into the supported area of the No. 6 entry. (Tr. II 203-04, 274-76). The rock fell
to the ground in both supported and unsupported top after being dragged by the miner. (Tr. II
274-76, R. Ex. 10).9
According to Pauley, during this process, the continuous miner tore out a couple of roof
bolts that were at the edge of the cut (Tr. II 189, 193, 201), and the boom of the miner caught the
line curtain and pulled it down. Thereafter, the line curtain was never moved back up to comply
with the 50-foot waiver that MSHA had granted Respondent. (Tr. II 228). 10 Pauley testified that
when a curtain is down, ventilation is automatically compromised. (Tr. II 279). Shortly
thereafter in testimony, Pauley volunteered that a downed curtain impedes ventilation (Tr. II
280), and then testified that it always impairs the volume of air in the area. (Tr. 280).
After the rock fell to the ground, the continuous miner was backed out to the last open
crosscut. (Tr. II 191 ). Sometime during the next 10 minutes, miner representative, Charlie
Mullins, who runs a roof bolting machine, became aware of the incident and had a discussion
with Kinder, Daniels, and Pauley. (Tr. II 297-98). Pauley described the discussion as a
"confrontation" regarding whether there was a [reportable] :roof fall (Tr. II 190-91). "They were
making the decision that it was a roof fall." (Tr. II 298). ~auley told them, however, that it was
~ot a roof fall. (Tr. II 298, 236). Pauley made the determination that the event was not
reportable. -(Tr. 1~1-93). In his testimony~ .Pauley explained. that it was just a piece of rock
coming down in unsupported top during normal mining practice, and it did not damage the bolts
.in th~ intersection where the roof supports were present, or compromise the anchorage of the roof
bolts in the area. (Tr. Il 191-93). Rather, Pauley determined that the roof bolts were damaged
by. the cutter head of the continuous miner as the rock was raised up to the roof, and the miner
was backed up in an effort to remove the rock. (Tr; Il 189, 193, 201).

9

All maps or diagrams of the rock fall establish that it extended several feet into the
bolted No. 6 entry from unbolted 6 left, about halfway to the second row of roof bolts. (G. Ex.
5, p. 4; G. Ex. 6, p. 6; R. Ex. 10 ).
10

At one point, Pauley testified that the line curtain was put back up before the crew left
the section (Tr. 231 ), but later testified that there was a piece of curtain missing after the area was
dangered off. (Tr. 251). I discredit Pauley's testimony that the line curtain was put back up to
ventilate the face, when the day shift left the section. (Tr. II 231 ). Pauley' s own inconsistent
testimony (Tr. II 228), and the testimony of his boss, Dave Belcher, establish that after the fall,
the line curtain was no longer within 50 feet of the face. For example, on cross-examination.
Belcher testified that when he examined the rock fall the next day, the line curtain was 70 feet
outby the No. 6 face and had been tom down. (Tr. II 369).

33 FMSHRC Page 991

Pauley had enough reservations about his determination, however, to call Belcher on the
surface. (Tr. II 193-94, 298). Pauley explained what happened, including his discussion with
Mullins and crew. Based on Pauley's explanation, Belcher agreed that the roof fall was not
reportable. (Tr. II 194, 299-300). Belcher had to rely on what Pauley told him based on
Pauley's observations at the scene. (Tr. II 237-38). As Belcher put it, "I had to trust his
judgment, what he told me on the mine phone that day," to meet the 15-minute reporting
requirement. (Tr. II 404). "lfl'm wrong, I'm wrong: if I'm right, I'm right." (Tr. II 406).
Belcher testified that the reporting issue was not even a "close call" based on what Pauley
told him. "I mean, to me, it's - it's everyday mining.... To me, it's not a roof fall until you
support it with roof bolts. And then ifit's above those roof bolts and falls out, then that's a
reportable roof fall, in my opinion." (Tr. II 416-17). A truncated version ofBelcher's
conversation with Pauley follows:
And John called outside and said, you know, "We had a piece of rock fall up here
in the 6 break left. He said, "I just want to try to get some leeway. Do you think .
I need to report?"
II

I said, "Well, what's happened?"

He said, "Well, during the cut, the rock fell out."
I said, "Well, did it tear out bolts?"

He said, "No."
And I said, "Well," I said, "unless it's above anchorage or it impedes passage,
John, or it impedes your ventilation," I said, "no, it's not reportable."
And he said, "Well, that's what I thought, but," he said, "I just wanted to make
sure."·
I said, "Well, there's nothing wrong with that."

...

•,

He said, "Well, it's got a -- it fell on top the miner. It's got a bolt in it." He said,
"When we· backed out with the miner, we broke that bolt off." I said, "Well,
John, it still ain't -- you know, it's not above anchorage, so it's not reportable."
(Tr. II 314-17).
After Pauley called out the fall, Belcher told him to put up reflectors because Respondent
was going to clean the rock up and roof bolt the area. (Tr. II 194). Pauley testified that the crew
had safe passage past the fallen rock to leave the No. 6 entry at the end of their shift. (Tr. II 205,
209). 11

11

Although the crew exited safely, I find that the unsupported top created by the dislodged
roof bolts between parallel surface cracks made travel in the area hazardous, as Respondent
admitted in August 17 and 18 shift reports (R. Ex. 8, pp. 26-27), and through the testimony of
Belcher that travel in the No. 6 entry was unsafe after the fall. (Tr. II 348-49).
33 FMSHRC Page 992

Pauley testified that he did not indicate what happened in the August 13 on-shift report
because he saw no reason to do so. (Tr. II 213). Although acknowledging that he would report
dangers in the on-shift book, Pauley testified, "I didn't have no potential hazard ... I didn't see no
potential hazard." (Tr. II 214). Pauley's pre-shift report for August 13 for the No. 6 entry under
the heading "Violation or Hazardous Condition," indicates that a "scrap" cut was called out at
3:18 p.m. (Tr. II 240; R Ex. 8, p. 5). Consistent with his discussion with Belcher, Pauley was
expecting the next shift to clean up the rock and bolt the area. (Tr. II 240-41).
Instead, the evening shift "dangered off' the No. 6 entry and left crosscut, as reflected in
the on-shift report. (Tr. iI 241; R Ex. 8, p. 6). Belcher explained that when he lined out miners
for the evening shift, he asked shift manager Jim Martin to "at least go up there and look at [the
fall], see if you think we need to do anything additional ...." According to Belcher, Martin
called back outside, "Dave, this is just normal procedure. We -you know, we've encountered
this before. This ain't reportable." (Tr. II 318 ).
Based on Martin's report, Belcher did not think it was necessary to examine the fall. (Tr.
II 32). Belcher further testified that normally, if it was a reportable fall, he would examine the
fall immediately and make a judgment call. (Tr. 320). This testimony makes little sense,
however, if Belcher could not reach the fall·site within 15 minutes to determine reportability, and
thus was forced to rely on the reports of others, such as Pauley's report in this case. Moreover,
according to Belcher, Martin did not review the fall until around 5 p.m. on the evening shift,
about an hour and one-half after the incident, well past the 15-minute reporting deadline. (Tr. II
337). Thus, Belcher had to rely on the judgment of Pauley, as it took more them 15 minutes,
indeed about 45 minutes, to reach the site of the fall froin the surface. (Tr. I 78; Tr. II 404).
Moreover, Belcher did not speak to operator Kinder until later that evening, when Belcher
learned that Kinder had expressed concerns to Pauley about reportability, that Pauley had told
Kinder that the fall was not reportable, and that Pauley was going to call Belcher and make sure.
(Tr. 390). Like Kinder and Daniels, Martin did not testiff. I give Belcher's testimony about his
conversation with Martin little weight.
Despite Belcher's account of Martin's report, Belcher testified that he then told Martin to
''breaker off' the entry. Belcher testified:
"Well, with the multiple cracks that's in that e~try. No. 6 entry." I said, "let's just
go ahead and breaker it off." I said, you know, "The rock fell in there." I said,
"For the safety and health of -- you know, of everybody that's supposed to be in
there, let's just go ahead and breaker it off." And that's what we did.
(Tr. II 318).
Belcher considered the No. 6 entry stopped at that point. As he put it, "[w ]e was no
longer going to proceed into that crosscut because our ultimate goal was to punch outside
[through another entry] and get to pillaring." (Tr. II 318). " ... [W]e was trying to butt off and
punch outside." (Tr. II 324). Frederick Collins, senior safety manager for Respondent's parent
Patriot Coal Corporation, confirmed that Respondent only needed one of the entries "punched to
the outside to finish that unit up and get completely out of there, so it wasn't necessary for us to
mine that place, in those bad conditions." {Tr. II 435).

33 FMSHRC Page 993

B.

The Day After the August 13 Roof Fall

Belcher recalled a conversation on Friday, August 14, with state inspector Kerry Herron
from the West Virginia Office of Miners' Health Safety and Training (WVOMHST). According
to Belcher, Herron had issued a roof control violation during the hoot owl shift on August 13-14
for adverse conditions that required supplemental bolting throughout the East Section. (Tr. II
320, 334). 12 Also according to Belcher, Herron told Belcher that Pine Ridge had done an
"outstanding" job on the section, but Herron just wanted to see more. (Tr. II 334).
Belcher testified that when he asked Herron about "6 break left," Herron replied, "Well,
you've got that breakered off." When Belcher then asked what Herron thought about the fall
yesterday, Herron purportedly replied, "Well; just a normal rock fall, just like getting a cut of
coal. I did see the surface cracks in there, but I didn't go inby the breaker line." (Tr. II 322). On
questionirig from the bench, Belcher testified, as follows:
And then, of course, I did ask him about the rock in No. 6 left, just for a simple
reason, just to try to clear my conscious [sic] a little bit. Because anytime
something like that comes up, you want to make sure about something. So not
only did my section boss tell me that he didn't think it was reportable, I had a shift
manager tell me the same-thing.
So I asked Kerry the same question, "Did you think that was a· reportable roof
fall?"

He said, "Roof fall?" He said, "Well, no, that's just part of the cut, ain't it?"
I said, "Well, that's my opinion too. I just wanted to know what you thought,
because there was a question brought up yesterday about should we have reported
·or not, by the boss, you know, John-- when John had called out." And I said, "I'm
just trying to get some con:fi.nnation on it." That was pretty much the end of us
discussing that in 6 left.
(Tr. II 334-3'5).
I do not credit Belcher's recollection of this hearsay from Herron. I give it no weight. It
·is self-serving testimony on the critical legal issue of unwarrantable failure. It is uncorroborated
by any notes from Respondent, by any documentation of the alleged August 14 inspection or ·

12

WVOMHST inspector Herron, a former Pine Ridge employee, had worked under
current safety and training manager, Dave Ashby. Ashby was Respondent's non-sequestered
representative and the last witness to testify at the hearing. (Tr. III 71, 105-06). Herron
provided Respondent's counsel with a notarized affidavit dated November 15, 2010 (R. Ex. 13),
which I received in evidence over strenuous hearsay and relevancy objections from Petitioner's
counsel, who also raised standing objections to receipt of any evidence from WVOMHST. (Tr.
1, 17-26, 33-34; Tr. 11, 322-25; Pet. Br. at 22-26). As I informed the parties in pre-trial
conferences and reaffirmed at the hearing, I find Herron's affidavit and the WVOMHST hearsay
relevant to the unwarrantable failure issue and admissible evidence under Commission Rule 63.
As explained herein, however, I give such evidence no probative weight.
33 FMSHRC Page 994

violation, or by Herron's own affidavit. (Tr. 372-75; R. Ex. 13). In fact, Herron's affidavit
makes no mention of this conversation with Belcher. (R. Ex. 13). Significantly, Herron's
affidavit places his examination of the fall about a week after the incident, not the day after.
Herron's affidavit specifies that "[a]pproximately one week after the fall occurred... ," he
examined the fall from the breaker line while traveling with an unidentified Pine Ridge
supervisor. (R. Ex. 13, para. 3 and 7). 13
Similarly, I place minimal weight on Herron' s November 15 affidavit. 14 Herron did not
testify because Respondent never effected service of its subpoena on him. Accordingly,
Petitioner was unable to cross examine Herron on the truth of the matter being asserted -- his
opinion that the fall was not reportable -- and the basis for that opinion. Similarly, the Petitioner
was precluded from inquiring into potential bias in light ofHerron's past employment by
Respondent. Likewise, Petitioner was precluded from exploring the circumstances surrounding
Respondent's counsel's preparation ofHerron's affidavit and how Herron obtained personal
knowledge of the facts alleged. therein. Thus, while Herrou's hearsay opinion on the ultimate
issue is admissible as relevant evidence under Commission Rule 63 and Fed. R. Evid. 704(a), I
find the evidence unreliable and sufficiently lacking in circumst_antial guarantees of
trustworthiness.
Despite Belcher' s testimony that he saw no need to view the roof fall after receiving
Martin's report, Belcher and superintendent Ryan Toler did examine the roof fall the next day
from the breaker line. 15 Belcher testified that he saw one roof bolt the rock with the plate still
on it, and "as you looked up where it fell out, you could see where it sheared off." (Tr. II 385-87,
389). Belcher unequivocally testified that when he viewed the fa.II with Toler on August 14, he
·saw one damaged bolt, which still had the plate on the bottom ofit. (Tr. II 386, 388, 391,.398,
416, 419). 16 · When shown R. Ex. 10, a diagram of the roof fall prepared by Respondent's . _
surveying agent about a week after the fall, Belcher admitted that if a roof bolt was pulled out by

m

13

As found below, Herron was part of the state inspection party present on August 18,
which was !ive .days after the roof fall at issue, and a day after the 104(d)(l) Order had been
issued and thereafter reported by Respondent. Also as found below, on August 18, state roof
specialist, John Griffith, issued a control order (R. Ex. 14) and violation for adverse roof
conditions throughout the section (R. Ex. 15). ·
14

In his affidavit, Herron opines that the roof fall was not a reportable "accident" under
West Virginia law §22A-2-66(a)(8), which is identical to the definition of"accident" in 30 C.F.
R. 50.2(h)(8). (R. Ex. 13, para. 4; R. Ex. 4)). Herron's opinion is consistent with Respondent's
defense on the anchorage zone issue. Herron's affidavit, however, does not address whether the
roof fall impaired ventilation or impeded passage.
15

Belcher ''thinks" he told Toler about Pauley's description of the fall. (Tr. II 413-14).
Toler did not testify.
16

Collins testified, however, that there was a roof bolt protruding out of the rock with
residue on the bolt, and there was another roof bolt that was sheared off. (Tr. III 33).
33 FMSHRC Page 995

the fall as indicated on R. Ex. 10, then the roof support going across that entry would be
compromised. (Tr. II 395-96). 17 Belcher further testified that the fallen rock was pie-shaped and
about 4.6 feet tall where the bolt went through it, and that two rows ofroofbolts had been
compromised by the roof fall, as shown on R. Ex. 10. (Tr. II 396, 414-15).
Nevertheless, on cross examination, Belcher testified that the missing roof bolts did not
impede access to the No. 6 face, and that a certified foreman would be able to walk inby to
fireboss that face by staying over on the right rib side where the roof bolts were intact. (Tr. II
397-98). I find, however, that safe passage to the No. 6 face was impeded. I emphasize
Belcher' s previous testimony on direct examination that he set the breaker lines because travel to
the No. 6 face was unsafe for anybody that worked in the No. 6 entry after the fall. (Tr. II 34849). In addition, Collins credibly testified that safe travel to the No. 6 face had been breakered
off, and the No. 6 entry was pre-shifted at the breaker line. (Tr. ill 29-30, 34). Similarly, on
cross, Pauley conceded that Respondent was unable to go up to the No. 6 face to conduct
required exams every two hours. (Tr. 245): fustead, pre-shift and on-shift exams were
conducted outby the breakers. (Tr. 245, 436-37).

In addition, it is noteworthy that Respondent's oWn. pre-shift and on-shift reports indicate
unsafe travel impeding passage to the No. 6 face after the fall. The pre-shift exam for the August
13-14 hoot owl shift and for the succeeding shift indicates that the No. 6 entry and left cross cut
were dangered off, although no reason was given to communicate what hazard was present or
why the area had been dangered off. (Tr. II 244-48, R. Ex. 8, p. 7 and 9). The on-shift report for ·
the first shift on August 14 again indicates "dangered off," and under "action taken," indicates .
"danger off - breaker off." (Tr. II 249; R Ex. 3, p. 10).
Pau~ey conceded that the No. 6 entry was so dangerous that it had been breakered off with
timber$ by August 14. In fact, the pre-shift report for the No. 6 entry indicated "stopped,"
meaning.no one was going inby the timbers (Tr. II 25~51; R. Ex. 8, p. 110). Pauley testified.
that no one went inby the timbers to the No. 6 face to ensure compliance \\•ith the ventilation
plan, or to replace the piece of curtain that the continuous miner had tom down. The No. 6 entry
was not sealed off, however, and remained in the primary air intake with an fucomplete crosscut
to the No. 5 entry. (Tr. II 251-52, 256-57). 18

Belcher opined that the ventilation to the No. 6 face was not impaired by the rock fall
because there was a sufficient amount of air traveling up the primary intake. (Tr. Il 345-47). I?

17

R. Ex. 10 indicates where a roof bolt was pulled out by the fall, where a roof bolt plate
and head were missing, and where a roof bolt had a damaged plate.
18

MSHA inspector Ellison testified that Respondent's ventilation plan required
connection of the entries, but the ventilation plan is not in evidence. (Tr. I 87). Absent such best
evidence, I decline to credit any testimony about the actual contents of the ventilation plan.
19

Similarly, Collins testified that while he was at the breaker line in the primary intake on
August 18, he did not see any evidence of impaired ventilation as the curtain "came up to the
breaker line" and pre-shift exams were taken at the breaker line. (Tr. ill 28-29). Collins did not
33 FMSHRC Page 996

Belcher acknowledged, however, that the line curtain takes noxious gas, coal dust, and bad air
down the return and back out, and that all ventilation curtains or controls should be in place, even
when the section is idle. (Tr. II 346-47). Furthermore, on cross, Belcher admitted that
breakering off the No. 6 entry did not relieve Respondent of the obligation to ventilate the No. 6
face (Tr. II 369-70, 392), and he was compelled to concede that the ventilation curtain should
have been in place. (Tr. 369-70). Similarly, on unrelenting cross examination, Collins conceded
that Respondent could have accounted for the safety of its miners and called MSHA to get a
waiver of the requirement that the curtain be within 50 feet of the face. (Tr. ill 44-46).

C.

MSHA's August 17 Inspection and 103(k) and 104(d)(l) Orders

The August 17, 2009 pre-shift exam was called out at 7 :20 a.m. and indicates that the No.
6 entry was "dangered off." Midnight shift foreman Dale Helmandollar wrote, and then crossed
out.and initialed, "H20 to face." (Tr. II 246, 262-64; R. Ex. 8, p. 23).
At about 9 a.m. on August 17, 2009, certified MSHA inspector, Brandon Ellison, from
the District 4 field office in Madison, West Virginia, traveled to Big Mountain No. 16 mine to
continue his quarterlyEOl inspection. (Tr. I 51-53, 69, 71). 20 It took several months to inspect
the whole mine and Ellison had already completed his inspection of the 020-0 MMU (East
Section) (Tr. I 55, 73).
When Ellison arrived, the United Mine Workers of America (UMWA) representative
asked him to look at some specific conditions on the previously inspected 020-0 MMU (East
Section) because of some very bad roof collditions and. cracks across the section, which were
very dangerous. (Tr. I. 72-73, 76-77). Ellison checked the pre-shift/on-shift reports. As noted,
they indicated that the No. 6 entry was dangered off without explanation of hazard. Moreover,
·Respondenf s safety supervisor, Justin Ray. could not provide Ellison with any rationale for the
'· danger.· (Tr. I 73-75, Tr. II 122)..
·

An inspection party of Ellison, Ray and Mullins then traveled underground for about 45
minutes on what Ray described as an "imminent danger'' run to the East Section and No. 6 entry.
(Tr. I 78; Tr. II 126). As noted, the No. 6 entry had been dangered off with timbers and Ellison
could see a single,· large rock of varying thickness, approximately 20' feet long, 8' wide and 7'

know, however, how far the curtain extended past the breakers. (Tr. Ill 48). Collins further
testified that the line curtain was allowed to stay 50 feet from the unsupported face, and although
he did not know how many feet away it was when he saw it on August 18, he acknowledged that
if it was more than 50 feet, it would not be in compliance with Respondent's ventilation plan.
(Tr. ill 40-42).
20

At the time of the inspection, Ellison had been been with MSHA only 14 months, since
June 2008. He had three prior years of experience in the mining industry as a general laborer and
safety technician for a coal company. While not green, Ellison was not very seasoned. (Tr. I 5152).
33 FMSHRC Page 997

feet thick. 21 Ellison also saw 6 to 8 inches of two, six-foot-long, tension rebar roof bolts with
resin glue at the end, protruding upward through the rock. Ellison credibly testified that the rock
had fallen under cracked roof that dropped three or four inches. (Tr. I 78-80, 91-93).
When Ray and Mullins could not answer Ellison's inquiries about the fall, they
summoned Pauley. (Tr. I 103; Tr. II 127). Pauley told Ellison that the fall occurred about the
end of the day shift on August 13, and that Pauley reported to management (Belcher) that a rock
had fallen on top of the miner, which was the last Pauley heard about the incident. (Tr. I 105).22
After viewing the fall, the August 17 inspection party traveled across the rest of the
section. (Tr. II 128). A scoop operator was rock dusting in the No. 5 entry about 120 feet from
the fall. (Tr. I 83). Somewhere en route, Kinder told Ellison in Ray's presence that the roof fall
came close to hitting Daniels, although Ray does not recall the remark. (Tr. I 107-08; Tr. II 169).
Based on demeanor and Pauley's testimony that Kinder and Daniels were visibly shaken after the
fall, I credit this hearsay testimony from Ellison.
After traveling the East Section, the inspection party returned to the No. 6 entry so Ellison
could ask additional questions and take another look at the fall. (Tr. II 128). Ellison traveled
about four to five feet inby the breaker posts, but two parallel cracks that extended from the fall
across the whole entry, impeded Ellison's further safe passage inby the fall. "You could see
where the roof had sat down, where the top had been broken," Ellison testified. {TL I 86).
Ellison further testified that despite the fall, Respondent was still obligated to examine
the No.· 6 face as part of its pre-shift and on-shift examinations, 'and to ensure that there was
actual air movement at said face to eliminate dust, gas and other hazardous conditions, even
though actual mining had ceased in that entry. Ellison opined that Respondent could not meet
such obligations without conducting examinations at the No. 6 face, and the "[t]he conditions·
were too bad for anyone to travel up to that area." {Tr. I 87-90). He testified that one could not
travel to the face under fully supported roof because the fall had pulled out two bolts and broke
two of the plates off. {Tr. 96).
In addition, Ellison testified that a line curtain extended about three rows of bolts past the
breaker posts and was much more than 50 feet from the No. 6 face, thereby exceeding
Respondent's ventilation waiver from MSHA. Since the line curtain was not providing the
ventilation the way it should have been, Ellison concluded ''there's no way they could've really
had the No. 6 face ventilated with the location of the curtain." (Tr. I 96-97, 111-12: G. Ex. 3). In
fact, Ellison's contemporaneous notes state, "no way to ventilate face" and "pulled out two roof
bolts above anchorage." (Tr. I 111, 113; G. Ex. 5, p. 3 and 5). Ellison explained that he could see
the bolts with resin sticking out of the top of the rock, thereby indicating that the two-foot or 24-

21

As noted, contrary to Ellison's approximation of a rock 7 feet thick, I find that the
height of the rock varied at points between about 4.5 feet and 5.5 feet high, as set forth in R. Ex.
10.
22

Pauley could not recall speaking to Ellison on August 17. (Tr. II 265).
33 FMSHRC Page 998

inch anchorage zone had been compromised. {Tr. I 113).23
After revisiting the rock fall, and noting several other hazardous conditions during his
"imminent danger" run across the section, Ellison issued 103(k) Order No. 8093136 at 12:10
p.m.24 That control order prohibited all activity on the East Section from spad #13331 inby until
MSHA determined that it was safe to resume normal operations in this area. Only those persons
selected from company officials, state officials, miner's representative(s) and others deemed by
MSHA to have information relevant to the investigation were permitted to enter the affected area.
G.Ex.2.
At 3 p.m., Ellison issued the 104(d){l) Order No. 8093139 at issue. Ellison explained
why, in his opinion, the roof fall met each of the three disjunctive prongs of the regulatory
definition of "accident," and should have been immediately reported. First, the operator should
have recognized that the fall pulled roof bolts out and was above the anchorage zone. In .
addition, the area could not be traveled due to the hazardous conditions caused by the fall.
Finally, by breakering off the No. 6 entry, the area could not be properly ventilated. (Tr. I 114).25

On direct examination by counsel for the Secretary, Ellison was presented with each of
the Commission's factors for determining whether Respondent's failure to report the roof fall
was an unwarrantable failure. Ellison testified that he considered each factor. I find that Ellison
did not independently assess each factor before preparing the 104(d)(l) Order as he could not
recall each of the factors when I questioned him. (Tr.1221). I find, however, that Ellison was
generally familiar with the relevant factors and credibly testified about his general thought
processes and considerations at the time he issued the Order:.
Ellison considered ihe extent of the hazardous condition, a large roof fall that occurred in

-ncontrary to the testimony of Ellison and the other MSHA inspectors, Belcher, Collins,
and Ashby testified that there was nothing in Respondent's minimum roof control plan (see R
Ex. 3; G. Ex. 9) that informed them what the "anchorage zone" was fo1r"the six-foot torque
tension bolts in use in the No. 6 entry. (Tr. II 341-44, 440-41; Tr. ill 9, 130). Nor does MSHA
provide any definition of anchorage zone. (See also Tr. ill 131-132). Based on decades of
collective mining experience, Belcher, Collins and Ashby testified that reportability was
triggered at or above the length of the bolt, and that MSHA had never informed them differently.
(Tr. II 344, 440-41; Tr. III 12, 152-154).
24

Section 103(k) of the Act provides: "In the event of any accident occurring in a coal or
other mine, an authorized representative of the Secretary, when present, may issue such orders as
he deems appropriate to insure the safety of any person in the coal or other mine, and the operator
of such mine shall obtain the approval of such representative, in consultation with appropriate
State representatives, when feasible, of any plan to recover any person in such mine or to recover
the coal or other mine or return affected areas of such mine to normal."
25

As District 4 Supervisor Terry Price told Ellison when observing the roof fall with an
inspection party the next day, "[t]his looks like they hit the trifecta here," a roof fall in the 6 left
crosscut at or above anchorage that impaired ventilation or impeded travel. (Tr. I 371-72).
33 FMSHRC Page 999

active workings,. where people actually were working. Ellison testified that the purpose of the
reporting requirement is to inform MSHA of the accident so that MSHA can issue orders and
approve rehabilitations plans to insure the safety of miners. (Tr. 116-17, citing section 103(k)).
Ellison also considered the length of time that the violation existed. He testified that the failure
to report lasted four days, from the afternoon of August 13 until the afternoon of August 17, and
no one from management made any effort to inform Ellison of the roof fall when he arrived on
August 17 to continue his quarterly inspection in other areas of the mine. (Tr. I 117). Ellison
also considered the fact that Pine Ridge was knowledgeable about its reporting obligations and
had a history of unplanned roof falls at the mine. (Tr. I 118; G. Ex. 12). Ellison further
determined that the failure to report the roof fall could cause a high degree of danger, even
though the area had been "break:ered off," because miners were expected to return to the area
during rehabilitation or cleanup, and the rock fall itself posed a high degree of danger to any
miners working in the area. (Tr. I 118-19). Finally, Ellison considered Respondenes "very, very
poor efforts" to abate the violation. (Tr. I 119). H;e concluded that the condition was obvious
and should have been reported immediately. (Tr. I 121; 219).
Ellison credibly testified that when he initially observed the condition underground on
August 17, he told safety specialist Ray that the fall was reportable and explained why. (Tr. I 19;
G. Ex. 5, p. 7) Thereafter, at 1:15 p.m., Ellison told shift foreman Martin and section foremen
Pauley that the fall needed to be reported. Once on the surfac_e at about 2 p.m., Ellison told
Belcher and Ashby about the 15-minute reporting rule and why Respondent was required to
reporfthe fall to the MSHA hotline. (Tr. 119;. G. Ex. 5, pp. 7-8). Ashby told Ellison that he
would make the call. Nearly an hour later at 2:55 p.m., when Ellison asked if Ashby had
reported the fall, Ashby replied, "Not yet. I'm getting ready- - getting ready to." (Tr. I 120; G.
Ex. 5, p. 8). At that time, Ellison called supervisor Price to discuss the situation and began
writing up the instant 104(d)(l) Order.
·. Ellison considered mitigating circumstances, including Respondent's only argument that
the fall did not occur in "active workings," and concludeq that Respondent's continued refusal to
report the roof fall despite his multiple requests, exhibited reckless disregard for the reporting
requirement. (Tr. I 121-23, 219-220). As Ellison explained on probing for the bench:
To me, the condition was obvious, at first, that they should've reported it
I was borderline on the unwarrantable failure at that point; but after talking to
them and telling them, ''Hey, you know, you need to report this" -- I mean, I had
two multiple discussions, and I have the times documented, and they still failed to
report it. I felt that that just increased their negligence to high and reckless
disregard.
And they didn't actually call it in until after I wrote the order. I mean, rd typed it
up and everything. I mean, it was blatant that they didn't - it wasn't going to get
called in.
(Tr. I 219-20).
Belcher testified that after the 104(d)(l) Order was written, he told Ellison, "We can
33 FMSHRC Page 1000

agree to disagree, but there's no way that's a roof fall, Brandon. That's everyday activity.... It
happens every time you get a cut of coal, if you're in adverse roof conditions .... Even the state
went up and looked at it and agreed with what we had to say about it. We didn't feel like it was a
reportable fall." (Tr. II 374).
While the 103(k) and 104(d)(l) Orders were being issued, the on-shift report for August
17 indicated "section idle" and that ''unsupported top" created a hazardous condition in the
"dangered off' No. 6 entry and crosscut left, with ''ventilation down." (Tr. II 142; R. Exh. 8,
p.26). Similarly, the pre-shift report for the August 17 hoot owl indicated ''unsupported top" and
''ventilation down," i.e., hazardous conditions in the "dangered off' No. 6 entry and left crosscut.
(R. Exh. 8, p.27).
Respondent eventually reported the roof fall at 3:11 p.m. on August 17. (G. Ex. 1).

D.

The August 18 Inspection by WVOMHST and MSHA

On August 18,. Collins was called to vi~it the mine by Ashby because both state and
federal inspectors were examining adverse roof conditions throughout the East Section that day.
(Tr. II 426-27). Collins credibly testified that the state inspectors (apparently Griffith, Herron,
and Hiebe) arrived at the mine before MSHA inspectors Ellison, Price, Barker and Winston
arrived, and that part of management traveled the section with the state, and Collins traveled with
MSHA. (Tr. II 438-39; Tr. ill 24)). When MSHA. arrived, Collins testified that he asked MSHA
inspector Ellison where the roof fall was, and Ellison replied, "6 break left that impeded
ventilation." (Tr. Il 430; Tr. ill 22).
.
. The August 18 inspection parties visited the f~L (G. Ex. 8, p. 2-4; Tr. II 426-27).
Collins testified that the area was breakered off because the chunk of sandstone had fallen out
between two parallel cracks, which started in the bolted area of the main roof and widened out .
into the adjacent crosscut, rendering continued mining in the No. 6 entry unviable. (Tr. 433- .
34). 26 MSHA inspector I...ee Barker took measurements of the rock with a handheld·Hilti laser.
The laser, however, could not measure the height of the rock from where Barker and EUison were
standing, about three foet away. (Tr. II 432).
WVOMHST inspector Griffith issued a control order (R. Ex. 14) during the roof control
inspection for the East Section from the feeder inby the faces. He also issued a notice of
violation (R. Ex. 15) in which all workable headings and crosscuts in the East Section would
cease normal operations until a plan of action for adverse roof conditions was approved by the
state. In addition, no further work was permitted in the No. 6 headings from 25 feet outby the
No. 6 left cmsscut to the unbolted face area, due to deteriorating roof conditions. (R. Ex. 15).
Collins testified that he had a conversation with Herron and Griffith about the unreported
roof fall violation in the No. 6 left crosscut written by Ellison the previous day. Collins testified
that both Herron and Griffith told him that they had investigated and did not think there was a
reportable roof fall under West Virginia law, which is identical to federal law.

26

Notes from MSHA roof specialist, Don Winston, state that the "sandstone fell in the
unbolted area and pulled a couple rows of bolts in the #6 entry," although he corrected his notes
through testimony establishing that only two bolts were pulled. (G. Ex. 8, p. 5; Tr. Il SJ3-84).
33 FMSHRC Page 1001

THE COURT: And did they say what specifications under state law it didn't
meet?
THE WITNESS: It didn't meet because it was just a face area, and it was normal
mining. That happens every day. You know, we're subject to have a piece of rock
fall out of unsupported top and damage or dislodge one or two roof bolts at any
time.
THE COURT: That's what they said?
THE WITNESS: Yes, sir.
THE COURT: Thankyou, sir.
(Tr.·Il 426-28).
Based on demeanor and the substance of Collins' testimony, I do not credit Collins'
uncorroborated account of this hearsay. Neither Herron nor Griffith testified. Furthermore, I
find it inherently implausible that experienced state inspectors would express an opinion in such ·
general terms on the technical and precise requirements of a complex definition of a reportable
roof fall accident, which had raised much recent controversy at Big Mountain No. 16 mine.
Section 104(d)(l) Order No. 8093139 was.terminated on August 18 at 3:30 p.m., after·
Respondent provided documentation that it had reported the roof fall at 3:11 p.m. on August 17.
(G. Ex. 1). As noted above, said Order was modified by inspector Ellison on August 20, based
on the results ofMSHA's additional investigation on August 18. (G. Ex. 1).27 On or about
August 24, Ellison completed an Accident Report(G. Ex. 4), describing the accident as follows:
A roof fall at or above the anchorage zone in the #6 left face that pulled out 2
permanent roof supports (roof bolts), ventilation to the #6 face has been impaired
due to the roof fall and the severe adverse roof conditions in the area. The
ventilation control in the form of a line curtain is approximately 4 7' from the last
row of roof bolts and approximately 75' from the unsupported face when
mea&ured with a digital range finder~ Passage of persons has also been impeded to .
the last row of roof bolts in the No. 6 entry:

III. Legal Analysis and Conclusions of Law
A.

· Order Denying Respondent's Motion for Partial Summary Decision

As noted at the outset, Pine Ridge filed a Motion for Partial Summa.ry Decision under
Commission Rule 67, arguing that Order No. 8093139 was not properly issued pursuant to

27

Ellison's modification should have accounted for Barker's new measurements of the
rock, as Ellison was with Barker on August 18, in close proximity to the fall. Ellison
inexplicably failed to modify his approximation, and Respondent understandably faults him for
failing to do so.
33 FMSHRC Page 1002

section 104(d)( 1) ~f the Act because it did not allege a violation of a mandatory safety standard.28
Pine Ridge contends that an order issued pursuant to section 104(d)(l) of the Act must allege a
violation of a mandatory health or safety standard, and that the regulations at Part 50, including §
50.10, are not mandatory standards. The Petitioner concedes that the Part 50 regulations were
not mandatory standards as originally promulgated. Petitioner argues, however, that § 50. l 0 was
re-published or promulgated as a mandatory standard in 2006 rule making proceedings, and that
the violation in 104(d)(l) Order No. 8093139 is charged properly as an unwarrantable failure.
Pine Ridge counters that § 50. l 0 was simply revised, and not promulgated as a mandatory
standard.
The identical issue was presented in WolfRun Mining Company, July 2, 2010, Docket
No. WEVA 2008-1417, in which Senior Administrative Law Judge Michael E. Zielinski issued
an unpublished Order Denying Respondent's Motion for Partial Summary Decision (hereinafter
cited as Wolf Run, unpublished Order).29 While Senior Judge Zielinski's Order is nonprecedentiaI, I find it well written and persuasive. Accordingly, I adopt the crux of Judge
Zielinski's analysis here and find that Pine Ridge's motion must be denied. I further find that
after the 2006 final rule making proceedings described below, the 2009 violation of30 C.F.R. §
50.10 at issue was charged properly as an unwarrantable failure.

1.

Legal Framework
a.

Statutory Provisions

Section 3(1) of the Mine Act defines "mandatory health or safety standard" as ''the .
interim mandatory health or safety standards established by Titles Il and III of this Act, andthe
standards promulgated pursuant to Title I of the Act." 30 U.S.C. §802(1). In Cyprus Emerald
Res. Corp. v. FMSHRC, 195 F.3d 42, 45 (D.C. Cir. 1999), the D.C. Circuit made clear that
violations of regulations or other provisions that are not mandatory standards canriot be
designated as significant and substantial or unwarrdlltable failures wider section 104(ci).
The Secretary's authority to issue mandatory health· and safety standards is contained in
section 101 of.Title I of the Act. 30 U.S.C. § 811. Section lOl(a) .of the Act directs that the
Secretary Shall by rule in accordance with the notice and comment rule making procedures set
forth in section 101 ·and section 553 of the Administrative Procedure Act (APA) (5 U.S.C. §553),
'"develop, promulgate, and revise as may be appropriate, improved mandatory health or safety
standards for the protection of life and prevention of injuries in coal or other mines." 30 U .S.C. §
81 l(a). Section 10l(a)(2) of the Act directs that "[t]he Secretary shall publish a proposed rule
promulgating, modifying or revoking a mandatory health or safety standard in the Federal
Register."

28

Commission Procedural Rule 67 provides that a motion for summary decision shall be
granted if there is "no genuine issue as to any material. fact" and "the moving party is entitled to
summary decision as a matter of law." 29 C.F.R. § 2700.67(b).
29

WolfRun was represented by the same law finn as Pine Ridge.
33 FMSHRC Page 1003

Section lOl(b)(l) of the Act states that the Secretary shall provide, without regard to the
requirements of the APA, for an "emergency temporary health or safety standard to take
immediate effect upon publication in the Federal Register if [she] determines (A) that miners are
exposed to grave danger from exposure to substances or agents determined to be toxic or
physically harmful, or to other hazards, and (B) that such emergency standard is necessary to
protect miners from such danger." 30 U.S.C. § 81 l(b)(l)(italics added). Once the Secretary
publishes an emergency temporary standard ("ETS"), she must initiate a formal rule making
proceeding pursuant to section lOl(a). The temporary standard serves as a proposed rule for that
proceeding, and remains effective until superseded by the mandatory standard. 30 U.S.C. §
81 l(b)(2) and (b)(3).
Under section 508 of the Act, the Secretary also has general authority to promulgate rules
and regulations that are not mandatory standards. 30 U.S.C. § 957. The regulations in Part 50,
which address "Notification, Investigation, Reports and Records of Accidents, Injuries, Illnesses,
Employment and Coal Production in Mines," were originally promulgated pursuant to the
Secretary's general rule making authority. They were not promulgated pursuant to section 101.
Accordingly, after C)prus Emerald, they could not be enforced pursuant to section 104(c;l) as
mandatory standards, unless developed, re-promulgated or revised as mandatory standards.

b.

The Emergency Temporary Standard (ETS)

The legal landscape for§ 50.10 changed on March 9, 2006. On that date, the Secretary
issued an ETS pursuant to section 101 (b) of the Act in response to the grave danger to which
underground miners are exposed during underground coal mine accidents and subsequent
evacuations. 71 Fed. Reg. 12252 (Mar. 9, 2006). In response to tragic accidents at the Sago Mine
on January 2, 2006 and the Aracoma Alma No. 1 Mine on January 19, 2006, MSHA determined
that "new" accident notification, safety, and training standards were necessary to further protect
miners when a mine accident takes place. 71 Fed. Reg. 12253. Thus, the ETS added several new
training requirements, re-published § 50. l 0 with the addition of a specific definition of the word
"immediately," and added numerous new provisions to mandatory standards for underground coal
mines, which were designed to enhance miners' chances for survival in the event of an accident.
In revising § 50.10 to require that mine operators immediately notify MSHA within 15
minutes after determining that an accident has occurred, the ETS defined "immediately" to mean
at once without delay, and within 15 minutes. 71 Fed. Reg. 12256. The Secretary determined
that miners are exposed to grave danger when a mine accident occurs and the mine operator does
not immediately, that is, within.15 minutes, notify MSHA about the accident. Delay in
notification may slow down the arrival of mine rescue assistance and the arrival of MSHA
personnel, who can provide assistance at the mine site. 71 Fed. Reg. 12256; see also 71 Fed Reg.
12253-12254. Consequently, the ETS incorporated a definitive standard into§ 50.10 of what is
meant by "immediately contact, " i.e., "at once without delay," and "within 15 minutes," which
sets a maximum time within which the contact must be made. The ETS was intended to impress
upon mine operators that notification is urgent and must be made a priority. 71 Fed. Reg. 12260.
The ETS did not, however, change the basic interpretation of§ 50.10 that the 15-minute
time period begins when mine operator determines that an "accident" within the meaning of
paragraph 50.2(h) has occurred, thereby affording operators a reasonable opportunity to
33 FMSHRC Page 1004

investigate an event prior to notifying MSHA. Accordingly;·an operator is responsible for
immediately notifying MSHA about those accidents that the operator knows or should know
about. 71 Fed. Reg. 12260. Thus,§ 50.10 notification "[s]hould be carried out in good faith and
without delay, and in light of the regulation's command of prompt, vigorous action." Id., citing
Consolidation Coal Co., 11FMSHRC1935, 1938 (Oct. 1989).
The ETS served as a proposed rule and was effective immediately upon publication.
After comments were submitted~ the Secretary further revised § 50.10 and published a Final Rule
on December 8, 2006. 71 Fed. Reg. 71430.

c.

The MINER Act and the Final Rule

As published in the Final Rule, section 50. l 0 now reads as follows:
50.10 Immediate Notification
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 and accident has occurred.
71 Fed. Reg. 71452.
Prior to publication of the Final Rule, Congress responded to the Sago and Aracoma
Alm~ mine tragedies by ~cting the Mine Improvement and New Emergency Response Act of
2006 (MINER Act). The MINER Act was signed into law by President George W. Bush on June.
15, 2006.. The MINER Act included requirements for Self-Contained Self-Rescuer (SCSR)
storage, training, lifelines, and accident notification. In the Final Rule, MSHA·reconciled the
ETS with applicable provisions of the MINER Act. 71 Fed. Reg. 71431.
With respect to accident notificatiQ..n. MSHA noted the following in its.general discussion
of the Final Rule:

In emergencies, where delay in responding can mean the difference between life
and death, immediate notification Jeads to the mobilization of an effective mine
emergency response. Immediate notification activates MSHA emergency
response efforts, which can be critical in saving lives, stabilizing the situation, and
preserving the accident scene. Immediate notification also promotes Agency
assistance of the mine's first responder efforts. fu other situations, it allows for a
range of appropriate Agency responses depending on the circumstances. It alerts
MSHA to trends or warning signals that can trigger a special inspection, an
investigation, or targeted enforcement. This communication also encourages
operators and miners to work with MSHA to develop procedures that prevent
incidents from resulting in more hazardous situations, ultimately leading to
disasters.
71 Fed. Reg. 71431.
The Final Rule added new requirements to 30 C.F.R. parts 48, 50, and 75. Id. With
respect to Part 50, MSHA noted that notifying MSHA of accidents must be a priority of the mine
operator. Any unnecessary delay can result in loss of life or other harmful consequences. 71
Fed. Reg. 71433. Accordingly, the Final Rule retained the requirement in the ETS that mine
33 FMSHRC Page 1005

operators notify MSHA of all accidents immediately and within 15 minutes. Id. The Final Rule,
like the MINER Act, did not include any exception to the 15-minute notification provision, and
eliminated the exception for lost communications that had existed under the ETS. 71 Fed. Reg
71434-71435.

In its analysis of the immediate notification requirement, MSHA summarized the
divergence of views from commenters. 71 Fed. Reg 71434. MSHA then concluded that the
15-minute requirement for reporting all accidents was working. 71 Fed. Reg 71435. MSHA
emphasized that the requirement was not only vital for saving lives, but instrumental in having
expert Agency persorniel at the scene with authority to assure that the accident site remains
undisturbed and preserved for investigation into causes. MSHA further noted that although many
reported accidents do not involve an injury or are non-emergencies, they may be near misses or
signify a trend or problem that left uncorrected can be extremely hazardous. For example, the
reporting of rooffalls may necessitate critical, pro-active corrective actions and the needJo~
emergency response assistance. MSHA also noted that even when MSHA does not activate 311
emergency response, the Agency conducts an investigation. Thus, prompt notification enables
MSHA to secure an accident site, preserve vital evidence that can otherwise be lost,_and examine
data to accurately determine trends and means of prevention. Id. (italics added).
MSHA also considered what triggers the 15-minute reporting requirement. The final rule
provides that "once the mine operator knows or should know," that a reportable accident has
occurred based on the judgment of a reasonable person, it has an obligation to report such
accident. 71 Fed. Reg. 71435. Thus, an operator, like any rea<::onable person under the
circumstances, is held to know or realize that an accident has occurred. 71 Fed. Reg. 71436.
Finally, MSHA improved the method of notification. MSHA acquired a nationwide call
system and eliminated the requirement in the ETS and prior standard that mine operators first
notify the appropriate District Office. The Final Rule provides a person to answer calls 24 hours
per day, 7 days per week. Accordingly, once the mine operator calls the toll-free service,
notification to ~ISHA is achieved. 71 Fed. Reg. 71436.

2.

Positions of the Parties

Pine Ridge contends that§ 50.10 was not "promulgated" in the Final Rule, but merely
"revised," and since it was not a mandatory standard prior to the 2006 rule making, it was not
converted into one. Pine Ridge argues that there was no clear indication in either the ETS or the
Final Rule, to convert§ 50.10 from a regulatory provision into a mandatory standard. In essence,
Pine Fidge further maintains that the Secretary did not provide actual notice that she intended to
apply § 50.10 as a mandatory standard subject to an unwarrantable failure penalty under section
104(d)(l ). Pine Ridge further argues that the ETS' s revised. statement of authority for the Part
50 regulations cites only the Secretary's general rule making authority, and the primary change to
§ 50. l 0 was described as a modification that did "not change the basic interpretation of §50. l O."
71 Fed. Reg. 12256, 12260. Although acknowledging that the citation to section 101 was added
to the statement of authority for the Part 50 regulations in the Final Rule, Pine Ridge argues that
such change was not explained. Thus, Pine Ridge argues that the rule making was insufficient to
convert the regulatory provision into a mandatory standard.

33 FMSHRC Page 1006

The Secretary rejoins that the ETS and Final Rule were published pursuant to section 101,
the Secretary's statutory authority for the issuance of mandatory standards. The ETS included
findings that delays in notification of accidents subjected miners to grave danger, a prerequisite
to issuance of a temporary mandatory health or safety standard. The Secretary further argues that
the December 8, 2006, Final Rule was the culmination of the rule making proceeding initiated
pursuant to section 101. In fact, a reference to section 101 as authority for the Part 50 regulations
was included in the Final Rule. Consequently, because §50.10 was promulgated pursuant to Title
I of the Act, the Secretary contends that it is a mandatory standard that can be enforced as an
unwarrantable failure pursuant to section 104(d).
With regard to the fair notice issue, the Secretary contends that she aJready provided
adequate notice to the regulated community of the substance of the changes to § 50.10 by
promulgating the ETS and Notice of Final Rule Making in the Federal Register. See Satellite
Broadcasting Co., Inc. v. Federal Communications Commission, 824 F. 2d 1, 3 (D.C. Cir. 1987),
citing Gates & Fox Co., Inc. v. OSHRC, 790 F. 2d 154, 156 (D.C. Cir. 1986).30 The Secretarf
contends that Pine Ridge could and should have read the new§ 50.10 in the Federal Register at
71 Fed. Reg. 71430 et. seq. (Dec. 8, 2006). Therefore, the Secretary argues that Pine Ridge· did
not need to be placed on actual notice that 30 C.F.R. § 50.10 was now a mandatory standard.31

30

The Secretary also argues that Pine Ri4ge had notice of and could have, but did not,
attend public meetings that MSHA Coal District 4 held to _educate the public and regulated
community about t.lie substantive changes to § 50. l 0. · (Tr. II 16~). While true, I give this
argument little weighi absent evidence that MSHA infonned those present at said meetings that it
intended to apply § 50.1 G as a mandatory standard subject to an unwarrantable failure penalty.
31

Even· assuming Pine Ridge was entitled to actual notice that the Secretary intended to
apply§ 50.10 as a mandatory standard, the Secretary argues that the issue is irrelevant because
there is no evidence ihat Pine Ridge placed any reliance of whether 30 C.F.R. § 50.10 was a
mandatory standard at the time of the roof fall. In any event, the Secretary notes that the notice
issue only implicates what type of enforcement action can be undertaken, not whether Pine Ridge
is subject to sanction in the first instance. See Satellite Broadcasting, supra, 824 F. 2d at 3 (due
process triggered when agency will begin to penalize private party). The Secretary argues that
Pine Ridge certainly had notice that MSHA was enforcing violations of 30 C.F.R. § 50.10, and
Pine Ridge presented no evidence that its considered whether its failure to report the instant roof .
fall subjected it only to a 104(a) citation. Rather, the Secretary argues that Pine Ridge
deliberately chose to refrain from reporting the fall. Therefore, the Secretary argues that because
30 C.F.R. § 50. l 0 was properly promulgated as a mandatory standard, and the notice issue lacks
merit, Pine Ridge committed an unwarrantable failure by failing to report the August 13 roof fall.

33 FMSHRC Page 1007

3.

Analysis Denying Respondent's Motion for Partial Summary Decision
on the Unwarrantable Failure Issue

Having duly considered the matter, I reject Respondent's arguments and find that the
Secretary made§ 50.10 a mandatory standard by promulgating it pursuant to section 101.
Carried to its logical extreme, Respondent's argument would mean that the Secretary could never
promulgate any new requirement as a "standard" if the Secretary carried over any existing
requirements from the regulation. As Senior Judge Zielinski observed, both the ETS and the
Final Rule set forth a complete revised text of§ 50.10, not piecemeal amendments to the wording
of the earlier regulatory provision. Wolf Run, unpublished Order at 5. The ETS and Final Rule
incorporated a definitive standard into § 50.10 of what is meant by ••immediately contact, " i.e.,
"at once without delay," and "within 15 minutes," which sets a maximum time within which
notification to MSHA of a reportable accident must be made. 71 Fed. Reg. 12260.
In addition, MSHA acted to protect miners from grave dangers associated with mine
emergencies and evacuations, including certain roof fall accidents. The reporting requirement '
change was intended to impress upon operators that notification is urgent and must be made a
priority, without exception, so that MSHA can bring its varied expertise to bear once the operator
knows or should know that a reportable accident has occurred based on the judgment of a
reasonable person. Clearly, therefore, the ETS enhanced the protection for miners from grave
dangers associated with failure to report ceratin roof falls, and 1.:ertainly did not reduce such
protection. 71 Fed. Reg. 12260. Moreover, the Final Rule eliminated the extant requirement that
mine operators first notify the appropriate District Office. Under the Final Rule, MSHA
acquired a nationwide cali system, which provides a person to answer calls 24 hours per day, 7
days per week, ihereby assuring that prompt and facile notification to MSHA is achieved.
As in Wolf Run, Respondent argues that the Final Rule's addition of a "passing reference"
to section 101 in the citation to authority is insufficient to transform § 50. l 0 into a mandatory . .
standard. As Senior Judge Zielinski cogently deduced, however, it is not the additi9n of the
reference to section 101 in the Final Rule that rendered the new reporting requirements in§ .50.10
a mandatory standard. Rather, the fact that the current text of§ 50 .10 was promulgated pursuant
to a section 101 rule making proceeding brings it within the Act's definition of a mandatory
standard. Wolf Run, unpublished Order at 5.
Respondent further argues that changing settled expectations concerning the
consequences of violations of§ 50.10 cannot be sustained absent a clear expression of intent by
the Secretary. I agree with Judge Zielinski that there is little question that a clear statement of an
intention by MSHA to make § 50.10 a mandatory standard would have .been helpful to the
regulated community, given the more serious consequences attendant certain violations of
mandatory standards. Wolf Run, unpublished Order at 5. As Judge Zielinski explained, a mine
that remains subject to withdrawal orders is commonly referred to as being on a "d-chain," and
some very large operators can remain in that status for several years. WolfRun, unpublished
Order at 5, n. 8. Accordingly, I informed the parties during pre-hearing conferences, and again
at the outset of the hearing, that I was concerned about this "fair notice" issue in light of the

33 FMSHRC Page 1008

possibility of conflicting statements from MSHA in the public domain. 32 Accordingly, I asked
the parties to further brief this issue. (Tr. I 13-14).

In WolfRun, Judge Zielinski found that respondent cited no authority for its "clear
statement of intention" requirement. Wolf Run, unpublished Order at 5-6. The Final Rule was
the end product of what a section 101 rule making proceeding and should have provided notice
that the revised § 50. l 0 was a mandatory standard, he observed. WolfRun, unpublished Order at
6. Judge Zielinski further emphasized the following salient points: that the version of§ 50.10
that Wolf Run was charged with violating was published on December 8, 2006 in the Final Rule;
that the Final Rule was published pursuant to section 101, part of Title I of the Act; and that the
Final Rule fit squarely within the Act's definition of a mandatory standard, which is clear on its
face. Id. Moreover, Judge Zieilinski found no ambiguity in either the Act's definition of
mandatory standards or in§ 50.10, and therefore found that the Secretary's interpretation of§
50. l 0 as a mandatory standard was reasonable and entitled to deference. Wolf Run, unpublished
Order at 6,.n. 10, citing Sec'y ofLabor v. Excel Mining, LLC, 334 F.3rd 1 (D.C. Cir: 2003).
Finally, Judge Zieilinski discounted the argunient that the Secretary has referred to the standard
as a regulation, noting that the Secretary, tlie Commissio~ and the courts have often
interchanged such terminology when discussing mandatory standards. Id., citing Cyprus
Emerald, 195 F.3d at 44 n.3.
I concur with Judge Zieilinski' s analysis. It cannot be gainsaid that the Secretary must
provide fair.notice of the requirements of her safety and health standards. The Commission
summarized this requirement in Island Creek Coal Co., 20 FMSHRC 14, 24 (Jan. 1998), as
follows:
Where an agency imposes a fine based on its interpretation, a separate inquiry may
arise concerning whether the respondent has received "fair notice" of the
· interpretation it was fined for violating. Energy West Mining Co., 17 FMSHRC
1313,1317-18 (Aug. 1995). "[D]ueprocess ... prevents.:. deference from
validating the application of a regulation that fails.to give fair warning of the
conduet it prohibits or requires." Gates & Fox Co. v. OSlIRC, 790 F.2d 154, 156
(D.C. Cir. 1986). An agency's interpretation may be "permissible" but
nevertheless fail to provide notice required under this principle of administrative
law to support imposition of a civil sanction General Elec., 53 F.3d at 1333-34.
The Commission [does not require] that the operator receive actual notice of the

32

In the WolfRun matter, Wolf Run pointed out that MSHA's "Citation and Order
Writing Handbook for Coal Mines and Metal and Nonmetal Mines" (2005) continued to instruct
MSHA inspectors that Part 50 regulations were not mandatory standards and could not be
enforced pursuant to section 104. The Secretary did not refute that assertion, but countered that
the Handbook was obsolete to the extent it conflicted with the current version of§ 50.l 0. In this
case, the MSHA Handbook on Citation and Order Writing for Coal Mines and Metal and NonMetal Mines (3/08) is not in evidence, and the Secretary correctly points out that neither Pine
Ridge's Motion for Partial Summary Decision nor its Reply in Support cite to the MSHA
Handbook, although Respondent raised this issue in argument.
33 FMSHRC Page 1009

Secretary's interpretation. Instead, 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 prohibition
or requirement of the standard." Ideal Cement Co., 12 FMSHRC 2409, 2416
(Nov. 1990).
In essence, the critical issue that I must decide is whether the Secretary must provide
actual notice in notice and comment rule making that § 50. l 0 will no longer be enforced as a
regulation, but as a mandatory standard subject to an unwarrantable failure finding and a
statutory minimum penalty of $2,000.00. Although actual notice of such intent would have been
prudent, I find that the Secretary need not provide such notice of its interpretation through rule
making, but may and has done so through her litigation and enforcement efforts. That is, the
Secretary is not required to promulgate interpretations through rule making or the issuance of
policy guidance, but may do so through litigation. See National Wildlife Fed'n. v. Browner, 127
F.3d 1126, 1129 (D.C. Cir. 1997)). Deference to an interpretation offered in the course of
litigation is propet as long as it reflects the "agency's fair and considered judgment on the
matter." Auer v. Robbins, 519 U.S. 452, ( 1977); accord, Tax Analysts v. IRS, 117 F.3d 607 ~ 613
(D.C. Cir. 1997).
Despite additional briefing and a full hearing, Respondent offered no evidence that
MSHA's interpretation represents anything less than the agency's considered opinion after final
rule making. Further, Respondent offered no evidence that MSHA has taken an inconsistent
enforcement position in litigating cases before the Commission. 33 The Secretary's enforcement
history provides notice of her consistent interpretation of the standard. In fact, the Wolf Run case
and this case show that MSHA has acted consistently and interpreted§ 50.lO as a mandatory
standard consistent with the Act's definition of mandatory standard after appropriate rule making
under Set;tion 101 of the Act.
In these circumstances, I find that the Secretary has provided fair notice of her
·interpretation of§ 50.10 as a mandatory standard and that such interpretation is reaspnable and
entitled to deference. See Sec '.Y ofLabor v. Excel Mining, LLC, 334 F.3d 1 (D.C. Cir. 2003).
Accordingly, Respondent's Motion for Partial Summary Decision on the unwarrantable failure
issue is denied.

33

As noted above, the MSHA Handbook on Citation and Order Writing is not in evidence.
Furthermore, as the Secretary points out in her post-hearing brief at 52, the Handbook represents
internal agency guidance and policy directives that are not binding on the Secretary in her
enforcement actions. See, e.g., Mingo Logan Coal Co., 19 FMSHRC 246, 250 (1977), aff'd
Mingo Logan Coal Co. v. Secy ofLabor, 133 F. 3d 916 (41h Cir. 1988). Consequently, the
Secretary need not give notice by publication in the Federal Register where she does not follow
internal guidelines. Id.
33 FMSHRC Page 1010

B.

Order No. 8093139
1.

The Violation

30 C.F.R. § 50.10 required Pine Ridge to contact MSHA within 15 minutes once Pine
Ridge knew or should have known that a reportable "accident" occurred. 30 C.F.R. § 50.2(h)(8)
de.fines "accident" to mean "[a]n unplanned roof fall at or above the anchorage zone in active
workings where roof bolts are in use; or, an unplanned roof or rib fall in active workings that
impairs ventilation or impedes passage." Under this disjunctive test, Pine Ridge was required to
report the roof fall if either of three conditions were met: 1) an unplanned roof fall at or above the
anchorage zone in active workings where roof bolts are in use; 2) an unplanned roof fall in active
workings that impairs ventilation; or 3) an unplanned roof fall in active workings that impedes
passage.
The parties disagree on the definition of anchorage zone and whether the roof fall was at
or above the anchorage zone.34 I find it unnecessary to resolve the parties disagreement.
however, because both of the other prongs of the disjunctive test were met here. thus, the
Secretarf established by a preponderance of the e\<idence that there was an unplanned roof fall in
active workings that impairs ventilation. In addition, the Secretary established by a
preponderance of the evidence that there was an unplanned roof fall in active workings that
impedes passage. Moreover, testimony from Respondent's own witnesses establish that
Respondent knew or should have known that toward the end of the day shift on August 13, there
was an unplanned roof fall in active workings that impaired ventilation and impeded passage.
Accordingly, I do not pass on whetherthere was an unplanned roof fall at or above the anchorage
zone it1 active working..-; where roof bolts are in use.

a. Unplanned Roof Fall
There is no dispute based on testimony from foreman Pauley that toward the end of the
day shift on August 13, a large piece of sandstone fell from the mine roof between surface
subsistence cracks onto the drum of the continuous miner as it was turning the No. 6 left
crosscut. (Tr. II 186-87, 286-89, 353, 416; G. Ex. 8, p. 5). Pauley heard the fall from 60-70 feet
away, and miner operator Kinder and helper Daniels hollered. (Tr. II 211, 290). The rock came
close to hitting Daniels. (Tr. I 107-08). When Pauley mediately approached the rock fall
location, he noticed that the two miners were visibly shaken up. (Tr. II 288, 290).
Based on the foregoing, I find that the roof fall was unplanned. Respondent makes no
argument to the contrary.

b. Active Workings
"Active workings" is defined in section 75.2(g)(4) of the regulations, consistent with
Section 318(g)(4) of the Act, 30 U.S.C. § 878 (a)(4), as "any place in a coal mine where miners
are normally required to work or travel." I find that the Secretary established by a preponderance
of the evidence that the instant roof fall occurred in "active workings."

34

As noted, MSHA nowhere defines anchorage zone in its regulations!
33 FMSHRC Page lOll

First of all, Commission Rule 2700.58(b), 29 C.F.R. §2700.50(b), addresses requests for
admissions, and provides in relevant part that " ... [a]ny matter admitted under this rule is
conclusively established for the purpose of the pending proceeding unless the Judge, on motion,
permits withdrawal or amendment of the admission." In its discovery responses, Pine Ridge
admitted that the August 13 roof fall occurred in "active workings." (Tr. ill 137; G. Ex. 15).
Pine Ridge made no motion or request for withdrawal of the admission. Accordingly, I find that
Ridge admitted as a matter oflaw that the roof fall was in active workings.
At trial, despite such prior admission, Pine Ridge witnesses Pauley, Collins and Ashby
attempted to deny that the roof fall occurred in "active workings" because it occurred in the "red
zone" where miner are not supposed to work or travel. (Tr. II 82, 198~ Tr. ill 66, 133-35).
Belcher, by contrast, directly admitted that a "[a] red zone is an active working place." (Tr. II
364, 367). Similarly, MSHA inspectors Ellison, Barker, Price and Winston all testified that Pine
Ridge was actively mining coal in an active working face when the roof fall occurred. (Tr. I 86,
126, 205, 265, 300, 354; Tr. II 10, 37 and 79). I credit the IvISHA inspectors and Belcher over
Respondent's other witnesses, who contradict Respondent's own discovery admissions.
I further find that the roof fall indeed occurred in active workings where miners normally
work or travel. 35 The roof fall occurred during active mining while turning the left cross cut.
The miner pulled or dragged the rock into the supported area of the No. 6 entry (Tr. II 203-04,
274-76), and the rock fell to the ground in both supported and unsupported top after being
dragged by the miner. (Tr. II 274-76, R. Ex. 10). The fall extended several feet into the bolted
No. 6 entry from unbolted 6 left. about halfway to the second row of roof bolts. (G. Ex. 5, p. 4;
G. Ex. 6, p. 6; R. Ex. 10 ). Miners regularly work or travel there. In fact, the roof fall !leady
missed Daniels. (Tr. I 107-08). Moreover, Ashby testified that the continuous miner would take
a cut and back out so the roof bolting crew could come in and support the top. Additionally, if
the machine broke, miners would travel into tlie "red zone" to fix it. (Tr. ID 133). Jn short, the
Secretary established that the August 13 roof fall occurred in "active workings."

c. Impairs Ventilation
The Commission has held that iJ1 the absence of a regulatory definition of a word, the
ordinary meaning of that word may be applied. See Bluestone Coal Corp., 19 FrvISHRC 1025,
1029 (June 1997); Peabody Coal Co., 18 FMSHRC 686, 690(May1996), affd, 111F.3d963
(D.C. Cir. 1997). The dictionary defines the verb "impair" as "diminish in quantity, value,
excellence or strength: do harm to: damage: lessen: deteriorate." Webster's Third New
International Dictionary 1131 (1993). Applying this definition, I find that the Secretary
established by a preponderance of evidence that the roof fall impairs ventilation, even though no
air readings were taken by MSHA.

35

1 agree with the Secretary that although the red zone may have kept miners from direct
contact with the continuous miner, that area was still "active workings" because men were
working and traveling in the immediate and adjacent area. Cf Consolidation Coal Co., 22
FMSHRC 340 (Mar. 27, 2000).
33 FMSHRC Page 1012

·During the :roof fall process, the continuous miner tore out a couple of roof bolts that
were atthe edge of the cut (Tr. II 189, 193, 201), and the boom of the miner caught the line
curtain and pulled it down. Thereafter, the credible evidence establishes that the line curtain was
never moved back up to comply with the 50-foot waiver that MSHA had granted Respondent.
(Tr. II 228 and n. 10, supra). Rather, as a result of the roof fall, there were no ventilation
controls in the face area and the line curtain was greater than 50 feet outby the face of the No. 6
entry, about 67-70 feet back. (Tr. I 97, 254, 355, 359; Tr. II 15, 159, 369; R. Exh 10).
Inspector Ellison testified that Respondent was still obligated to examine the No. 6 face
as part of its pre-shift and .on-shift examinations to ensure actual air movement to eliminate dust,
gas and other hazardous conditions, even though actual mining had ceased after the fall. I credit
Ellison's testimony that Respondent could not meet such obligations without conducting
examinations at the No. 6 face, and the "[t]he conditions were too bad for anyone to travel up to
that area." (Tr. I 87-90). As Ellison explained, no one could travel to the face under fullysupported roof across the entry; because the fall had pulled out two bolts and broke off two of the
· plates. (Tr. 96). In addition, the line curtain extended about three rows of bolts past the breaker
posts and was much more than 50 feet from the No. 6 face, thereby exceeding Respondent's
ventilation waiver from MSHA. Since the line curtain was not providing the ventilation the way
it should have been, Ellison concluded ''there's no way [Respondent] could've really had the No.
6 face ventilated with the location of the curtain." (Tr. I 96-97, 111-12: G. Ex. 3). Ellison's
contemporaneous notes confirm that there wa<; "no way to ventilate face." (Tr. I 111; G. Ex. 5, p.
3).
. Inspector Ellison testified that he did not take an air reading bt;Cause the line curtain was
dowu and the roof fall made it too dangerous to proceed to the face to take a reading. (Tr. I 141,

145). Ellison explained, "There was no place to take an air reading: The curtain wa<; torn dQwn.
they didn't have. ventilation established. You have to have a curtain to provide ventilation."
(Tr. I 141).
Respondent argues that an MSHA air reading could have been taken at the breakers and
emphasizes record evidence that there was sufficient ~.ira~ the last open break as the air swept
left.to right. (Tr. I 144). I am persuaded, however, by inspector Ellison's testimony that ')ust
because you have enough [air] in the last open· break does not mean you have enough in the
working faces" (Tr. I 173), particularly the No. 6 face where the roof fall precluded proper
placement of the line curtain, which was necessary for the ventilation system to work properly. I
note that Ellison refused to concede on cross examination that air swept across the No. 6 face
because his passage to the face was hindered by the rock fall, so he could not determine the air at
the face. (Tr.1145, 186). He testified with confidence, however, that ventilation was "impaired"
because the curtain was too far from the face. (Tr. l 171).
MSHA Supervisor Price confirmed that there were no other ventilation controls besides
the line curtain in the No. 6 entry, and that placement of the line curtain 67 feet outby the No.6
face automatically impaired ventilation to that face. (Tr. I 359-361.) I credit Price's testimony,
particularly since it wa8 consistent with Ellison's testimony and corroborated by Respondent's
own witnesses and documents.

33 FMSHRC Page 1013

Respondent's own witnesses and pre- and on-shift reports establish that ventilation was
impaired after the rock fall. Foreman Pauley admitted that when a curtain is down, ventilation is
automatically compromised. (Tr. II 279). Pauley volunteered that a downed curtain impedes
ventilation (Tr. II 280), and then testified that it always impairs the volume of air in the area. (Tr.
280). In addition, Pauley testified that after the roof fall, no one went inby the timbers to the No.
6 face to ensure compliance with the ventilation plan, or to replace the piece of curtain that the
continuous miner had tom down. The No. 6 entry was not sealed off, and remained in the
primary air intake with an incomplete crosscut to the No. 5 entry. {Tr. II 251-52, 256-57). In
order to abate the 103(k) Order and eventually abandon the section, Respondent needed to
implement a rehabilitation plan that would complete the cross cut between the No. 6 and No. 5
entries. (G. Ex. 3 at 4). Collins conceded that additional ventilation was needed subsequent to
the roof fail to ventilate the No. 6 crosscut because any inspector would have shut the mine down
if the crosscut was left undone. (Tr. ill 51-52).
Although Respondent attempteu to establish through the testimony oi Belcher, Collins,
and Ashby that the ventilation to the No. 6 face was not impaired by the rock fall because there.
was a sufficient amount of air traveling up the primary intake, and because pre-shift exams were
taken at the breaker line (Tr. II 345-47, 436-437; Tr. ill 87), I am unpersuaded by this testimony.
Belcher acknowledged that the line curtain takes.noxious gas, coal dust, and bad air down the
return and back out, and that all ventilation curtains or controls should be in place, even when the
section is idle. (Tr. II 346-47). In fact, on cross examination, Belcher reluctantly conceded. that.
the ventilation curtain should have been in compliance. (Tr. 369-70). Similarly, Collins and. ·
Ashby testified that the ventilation curtain should have been within 50 feet of the face. (Tr: III
44, 86).
Moreover, Respondent's pre-shift and on-shift reports on the day of the inspection, '
establish impaired ventilation. The August 17~ 2009 pre-shift exan\ had the words "H20 to
face," crossed out and initialed. (Tr. TI 246, 262-64; R. Ex. 8, p. 23). While the 103(k) -:md
. 104(<l)( 1) Orders were being issued, the on-shift report for August 17 indicated "section idle'' and
. "unsupported top," creating a hazardous condition in ~e ''dangered off' No. 6 entry and crosscul
left, with "ventilation down." (Tr. Il 142; R. Exh. 8, p.26) .. Similarly, the pre-shift for the
August 17 hoot owl indicated that "unsupported top" and "ventilation down" were hazardous
conditions in the "dangered off' No. 6 entry and left crosscut. (R. Exh. 8, p.27).
In sum, I conclude that the preponderance of record evidence establishes that the August
L3 roof fall "jmpairs" ventilation in the No. 6 entry.

d. Impedes Passage
As set forth above, the credible evidence establishes that the roof fall impedes passage to
the No. 6 face. The dictionary defines the verb "impede" as "to interfere with or get in the way
of the progress of: hold up: block. Webster's Third New International Dictionary 1132 (1993).
Webster's uses the synonym "hinder." Applying this definition, I find that the Secretary
established by a preponderance of evidence that the August 13 rooffal1 impedes passage to the
No. 6 face under fully supported top.
Without prior waiver from MSHA, Respondent's examiners were required to travel to the
No. 6 face several times per day to conduct required pre-shift and on-shift examinations. (Tr. I
33 FMSHRC Page 1014

87-88, 253, 355; Tr. II 167, 183).36 Pauley conceded that Respondent was still obligated to
examine and ventilate the No. 6 face even though it was breakered off after the fall, but no one
went inby the breaker line to do so. (Tr. II 267-68). Ellison explained that Respondent was still
required to inspect that area. ''That's an active working face that was unbolted at both locations.
They're still required to check it for methane and hazardous conditions." (Tr. I 126).

I credit Ellison's testimony that there was no way to assess proper air movement at the
No. 6 face without examining the air there, however, the roof conditions after the fall were too
precarious for anyone to travel up to the face to examine the air. (Tr. I 89-90). As Ellison and
Supervisor Price explai.Iled, no one could travel to the No. 6 face under fully supported roof: and
there was no safe way for anyone to travel to that face to take an examination. (Tr. I 96, 207,
356). MSHA Roof Control Specialist Barker and Supervisor Price confirmed that Respondent
was obligated to pre-shift and on-shift all faces on every working section, and there was no way
for Respondent to conduct the required examinations at the No. 6 face because the roof fall
compromised the support in the entry and precluded travel to the face under fully suppotted roof
as required by 30 C.F.R. §75.202.37 (Tr. I 253, 317, 355-57; Tr. II). In fact, MSHA inspectors
Ellison and Barker concluded that it was too dangerous to inspect the No. 6 face because the
conditions created by the roof fall impeded their passage. ·(Tr. I 145, 242). As Price put it, only
if one traveled inby "some obvious extremely dangerous and unsupported top" could one have
ventured to the No. 6 face. (Tr. JI 27).

. I agree with the Secretary's argument that Pine Ridge's decision to danger off the No. 6
entry and conduct examin.ations at the breaker posts after the roof fall is persuasive evidence that .
the roof fall impedes passage. Sec'y Br. at 40-41. The roof fall. dislodged roof supports creafo1g
an area of unsupported top, which caused Respondent to breaker off the area the next shift.
begin conducting examinations at the breaker posts. (Tr. I 206-07, 356; Tr. II 245; Tr. ill 34).
Respondent's witnesses Pauley and Collins acknowledged that once the area was dangered off,
·safe travel to the face was impeded. (Tr. II 245, 256; Tr. ill 29-30). In fact, Belcher explained
that once he set the breaker lines after the fall; they "prohibited anyone" from traveling to the No.
6 face because. it was "[u ]nsafe," and Respondent did not need that entry, with two parallel
surface cracks on the outcrop, to punch outside. (Tr. ·n 348-49). In short, I agree with the
Secretary that Respondent's decision to breaker off the No. 6 entry to travel shortly after the roof
fall demonstrates that the roof fall intpedes passage. See Sec'y Br. at 41.

and

36

MSHA had no opportunity to grant a waiver because Respondent did not report the roof

fall.
37

C.F.R. §75.202 provides:
(a) The roof, face and ribs of areas where persons work or travel shall be
supported or otherwise controlled to protect persons from hazards related
to falls of the roof, face or ribs and coal or rock bursts.
(b) No person shall work or travel under unsupported roof unless in
accordance with this subpart.
33 FMSHRC Page 1015

e.

Conclusion as to Violation

Based on the foregoing, I conclude that Respondent's failure to immediately report the
roof fall on August 13, was a violation of 30 C.F.R. § 50.10 because there was an unplanned roof
fall in active workings that impairs ventilation and impedes passage, although either is sufficient.

C.

Unwarrantable Failure Principles

I have denied Respondent's motion for partial summary decision on the unwarrantable
failure issue. Accordingly, Respondent's failure to report the roof fall in the No. 6 entry and left
crosscut of the 020-0 MMU (East Section) within 15 minutes of its occurrence on August 13,
may constitute an unwarrantable failure to comply with a mandatory safety standard.
The Secretary bears the burden of proving all elements of the 104(d)(l) Order by a
preponderance of the evidence. The Secretary must prove that the Respondent's failure to report
the "accident" was "aggravated conduct" after considering all the relevant facts and
circumstances as set forth in Commission precedent. Having duly considered such factors, I find
that the Secretary established by a preponderance of the evidence that Respondent, at a
minimum, exhibited "serious lack of reasonable care," if not "intentional misconduct" or
"reckless disregard," in failing to immediately notify MSHA within 15 minutes of the roof fall
accident.
The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.
§ 814(d). It 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 & Pittshurgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure
test).
The Commission has recognized that whether conduct is "aggravated" in the context of
unwarrantable fai~ure is determined by considering the facts and circumstances of each case to
determine if any aggravating or mitigating circumstances exist. Aggravating factors include 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 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. See
Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) ("Consof'); 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, 43 (Jan. 1997); Mullins & Sons Coal Co., 16
FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261(Aug.1992). A
judge may determine, in his discretion, that some factors are not relevant, or may determine that
some factors are much less important than other factors under the circumstances. IO Coal Co., 31
FMSHRC 1346, 1351(Dec.2009). I discuss below, the applicability, vel non, of all of the
relevant factors.

1.

The Extent of the Violative Condition
33 FMSHRC Page 1016

The Commission has viewed the extent of a violative condition as an important element
in the unwarrantable failure analysis. JO Coal Co., 31 FMSHRC 1346, 1351-52 (Dec. 2009).
This factor considers the scope or magnitude of the violation. See Eastern Associated Coal, 32
FMSHRC at 1195, citing Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland
Coals, Inc., 10 FMSHRC 705, 708 (June 1988). Here, the violation is the failure to report the
roof fall to MSHA within 15 minutes; it is not a roof control violation. 38
As Ellison testified, the purpose of the reporting requirement is to inform MSHA of the
accident so that it can issue orders and approve rehabilitations plans to insure the safety of
miners. (Tr. 116-17, citing§ 103(k)). Respondent's failure to report the accident immediately
resulted in a § 103(k) control order four days later that prohibited all activity on the East Section
from spad #13331 inby until MSHA determined that it was safe to resume normal operations in
this area. Only those persons selected from company officials. state officials, miner's
representative(s) and others deemed by MSHA to have information relevant to the investigation
were permitted to enter the affected area. G. Exh. 2. Thus, the whole East Section and miners
working throughout the section were affected by the failure to report the violation, not just the
No. 6 entry and miners working in such entry. Cf Eastern Associated Coal, 32 FMSHRC at
1195 (rejecting analysis that extensiveness of a roof control violation is limited to measuring area
of inadequately supported roof and comparing it to relevant area examined by inspector,
particularly since violative conditions could easily be considered much more extensive within a
concentrated area).
Another relevant consideration in determining whether the violation is extensive is the
· abatement measures taken to terminate the relevant Order(s). Eastern Associated Coal, 32
FMSHRC at 1196; Peabody Coal Co., 14 FMSHRC at 1263 (providing that extensiveness can be
shown by condition that requires significant abatement efforts). fu this case, Pine Ridge
submitted a rehabilitation plan for the 020-0 MMU to terminate the I 030<:) Order. G. Ex. 2.
That mining plan encompassed extensive safety precautions across the entire East Section in all
remaining entries.and crosscuts and required, inter alia, the establishment of additional
ventilation between the No. 5 and No. 6 entries and installation of a curtain in the No. 6 and No 2
entries. (G. Ex 3; Tr. ill 52).
In addition, the failure to report the roof fall extended for four days, while abatement
required a mere precautionary phone call to MSHA consistent with the rationale set forth in the
Final Rule to assure that the accident site was secure, undisturbed and preserved for investigation
into causes, trends, and means of prevention. Collins intimated that Respondent deliberately
chose to engage in self-help and deemed it more expedient to ignore MSHA, but conceded that
Respondent could have protected the safety of its miners by breakering off the No. 6 entry and

3

8Tue Secretary argues that the size of the fall made it extensive, but the actual violation
was the failure to report the accident. Accordingly, unlike inspector Ellison, I discount the extent
of the hazardous condition, a large roof fall that occurred in active workings, where people
actually were working, and I consider the extensiveness and ramifications of the actual failure to
report.
33 FMSHRC Page 1017

complying with its legal obligations to immediately notify MSHA of the roof fall accident. (Tr.
ill 44-46). Thus, the failure to report the "near miss" accident (Tr. I 106-07) extensively
inhibited the use ofMSHA expertise to timely investigate and institute critical; pro-active
corrective actions through the East Section that were eventually set forth in the rehabilitation
plan.
Furthermore, such extensiveness must be weighed in the context of my findings that the
hazard created by the failure to report was obvious, lengthy in duration (given the nature of the
violation), and contributed to the potential for a high degree of danger to other miners working in
other adverse roof areas throughout the section until MSHA controlled the scene. Eastern
Associated Coal, 32 FMSHRC at 1198. Accordingly, on balance, I find that the extensiveness
factor tips in favor of an unwarrantable failure finding.

2.

The Duration of the Failure to Report the Roof Fall Accident

The Commission has emphasized that the duration of the violative condition is a
necessary element of the unwarrantable failure analysis. See, e.g., Windsor Coal Co., 21
FMSHRC 997; 1001-04 (Sept. 1999)(remanding for consideration of duration evidence of cited
conditions). Inspector Ellison considered the length of time that the violation existed.
Consistent with his testimony, the record .establishes that the failure to report lasted four days, from the afternoon of August 13 until the ~ftemoon of August 17, and no one from management
made any effort to inform Ellison of the roof fall when he arrived on August 17 to continue his
quarterly inspection in other areas of the mine. (Tr. I 117).
The record further establishes that it took several months to inspect the whole mine and
Ellison had already completed his inspection of the 020-0 MMU (East Section) (Tr. I 55, 73). It
was only after the miner's representative asked Ellison to look at some specific conditions on the
previously inspected 020-0 M. .MU (East Section) because af some very dangerous roof conditions and cracks across the section, that Ellison checked the pre-shift/on-shift reports and discovered
that the No. 6 entry was dangered off without explanation of hazard. (Tr. I. 72-73, 75-77).
Ellison began his inspection when Respondent's safety supervisor, Justin Ray, could not provide
any rationale for the danger. (Tr. I 73-75, Tr. Il 122).
In sum, the failure to report lasted four days and the accident triggering the reporting
requirement might not have been discovered if not for the assiduity of the miner representative
and Ellison. An unwarrantable failure finding has been found when the violative condition has
lasted for several days, as here. See, e.g. Watkins Engineers & Constructors, 23 FMSHRC 81, 93
(Jan. 2001) (ALJ Manning). Accordingly, in the circumstances of this case, I firid that the
duration of the violation weighs heavily toward a finding uf un'Yarrantable failure.

3.

Whether Respondent Was Placed on Notice that Greater Compliance
Efforts Were Necessary

The Commission has stated that repeated similar violations are relevant to an
unwarrantable failure determination to the extent that they serve to put an operator on notice that
greater efforts are necessary for compliance with a standard.. IO Coal, 31 FMSHRC at 1353-55;
Amax Coal Co., 19 FMSHRC 846, 851(May1997); see also Consolidation Coal Co.,
23FMSHRC 588, 595 (June 2001). The purpose of evaluating the number of past violations is to
33 FMSHRC Page 1018

determine the degree to which those violations have '"engendered in the operator a heightened
awareness ofa serious ... problem." San Juan Coal Co., 29 FMSHRC 125, 131(Mar.2007),
citing Mid-Continent Res., Inc., 16 FMSHRC 1226, 1232 (June 1994). The Commission has also
recognized that "past discussions with MSHA" about a problem "serve to put an operator on
heightened scrutiny that it must increase its efforts to comply with the standard." Id., citing
Consolidation Coal, 23 FMSHRC at 595.
Inspector Ellison considered the fact that Pine Ridge was knowledgeable about its
reporting obligations beeause it had a history of unplanned roof falls at the mine. (Tr. I 118; G.
Ex. 12). The Secretary emphasizes that Respondent had about fifteen reportable roof falls in the
year pre-ceding the August 13 roof fall, including another one that same day. (G. Exh 12; Tr. I
62-68). The Secretary further assei.ts that Pine Ridge's known history of roof falls and poor roof
conditions motivated it to re.frain form reporting the instant roof fall because it might cause an
increase
in its incident rate in MSHA's . statistics. I decline to engage in such speculation..
. .
Although Pine Ridge knew how to report a roof fall accident based on its recent history as~
set forth in G. Ex. 12, there is no record evidence that MSHA had previously communicated to
Pine Ridge that it needed to make additional efforts to comply with 30 C.F .R. § 50.10. (Tr. I
204). In fact, inspector Ellison was not aware of any other failure to report roof fall accidents by
Respondent. (Tr. I 204-05) In these circumstan~es, 1 find thatthe Secretary has failed to
establish. that Respondent was placed on notice that greater compliance efforts with 30 C.F.R. §
50.10 were necessary. Accordingly, this factor mitigates against a finding of unwarrantable

.

fu~

4. ·

.

Whether the Violation Posed a High Degree of Danger

The Commission has relied upon the high degree of danger posed b.Y a violation to
s'upport an 1mwarrantable failure fmiling. See, e.g.. BethEnergy Mines, Inc., 14 F.MSHRC 1232,
1243-44·(Aug. 1992) (finding unwarrantable failure where unsaddled beams ''presented a ·
danger" to min;;rrs entering the area); Quin/and Coals, 10 FMSHRC at 709 (finding
unwarrantable' failure where roof conditions were "highly dangerous").
The relevant inquiry here is whether the failure to repoi:t the roof fall accident posed a
high degree of danger to miners or heightened their exposure to such danger. Hence, even
though the failure to report is the actual violation, I must examine whether the failure to report
the roof fall aggravated the danger posed by the extant roof conditions· after the fall, and whether
Respondent took any actions that mitigated its failure to rq>ort.
Respondent's own witnesses established that the roof conditions in the No. 6 entry
following the fa U were was so dangerous that the entry was breakered off with timbers by the _
following shift. The unsupported top created by the dislodged roof bolts between parallel
surface cracks made travel in the area hazardous, as Respondent admitted in August 17 and 18
pre- and on-shift reports (R. Ex 8, pp. 26-27), and through the testimony of Belcher that travel in
the No. 6 entry was unsafe after the fall. (Tr. II 348-49). Moreover, by the time of the
inspection four days later, Ellison observed that the rock ~d fallen under cracked roof that
dropped three or four inches. (Tr. I 78-80, 91-93). Additionally, Collins testified that the area
was breakered off because the chunk of sandstone had fallen out between two parallel cracks,
which started in the bolted area of the main roof and widened out into the adjacent crosscut,
33 FMSHRC Page 1019

rendering continued mining in the No. 6 entry unviable. (Tr. 433-34). I credit Ellison's
testimony that the failure to report the roof fall could cause a high degree of danger, even though
the area had been "breakered off," because miners were expected to return to the area during
rehabilitation or cleanup, and the roof fall itself posed a high degree of danger to any miners
working in the area. (Tr. I 118-19).
Concededly, the present danger that miners faced under continued normal operations in
the No. 6 entry was ameliorated by Respondent's prompt decision to breaker off that.entry.
Indeed, inspector Ellison marked the gravity in Order No. 8093139 as "no likelihood," "no lost
workdays," and not "significant and substantial" (S&S). But the failure to report had danger
ramifications that extended beyond the No. 6 entry where the instant rooffall occurred. The
record clearly establishes that the whole East Section had adverse roof conditions in every entry
as Respondent drove on the outcrop with low cover. (Tr. II 243). 39 There were very bad roof
conditions and cracks across the section, which were very.dangerous. (Tr. I 72-73, 76-77; Tr. ill
433-34). Even after the No. 6 entry was dangered off. mining continued for four days in other
entries until the 103(k) order issued on August 17. That Order was issued to ensure the safety of
all persons by prohibiting all activity on the East Section 020-0 MMU from spad #13331 inby
because the whole section, and not just the No. 6 ~ntry, had several adverse conditions present in
the form of cracks, slips, and mud streaks. G. Ex. 2. Miners were working and traveling in this
section from August 13 through August 17.
·.
Thus, contrary to the rationale set forth in the Final Rule at 71 Fed. Reg. 71435, the .
failure to immediately report t.11e August 13 ''near miss" roof faJl accident, hampered the timely
mobilization ofMSHA ·s expert persont1.el to the scene. Such immtldiate notification would ·.
have permitted MSHA to more quickly address a problem with adverse roof conditions
t1ironghout the East Section, which required a detailed rehabilitation pl~, and left uncorrected,
COUl~ ·have been extremely hawr<lous to miners continuing to WQrk there.
.
Consequently, despite Respondent's laudable and prudent decision to breaker off the No,
6 entry, Respondent could have and should have immediately notified MSHA so that it could
bring its expertise to bear to rehabilitate the entire section. (C£ Tr. ill 46). Respondent's failure
to do so exposed miners to additional roof fall hazards throughout the section. Accordingly, I
find that the violation heightened the exposure ofminers working throughout the East Section to

39

As the record evidence established before Judge Paez recently in Stillhouse Mining
LLC, Docket No. KENT 2007-309, SJip op. at 7 (Mar. 28, 2011 ),
http:/iwww .finshrc.gov/decisions/alYKt2007-309.htm, underground areas near where the coal is
exposed to the surface, called the outcrop, are known to have weaker roofs than other areas of the
mine. In addition, the deaths of most underground miners are caused by roof falls. Slip op. at 7.
See also Big Ridge, Inc., Docket No. 2009-532, Slip op. at 19 (Mar. 1, 201 l)(Judge Miller),
http://www.finshrc.gov/decisions/alj/Lk2009-490.htm, reaffirming Commission precedent in
Consolidation Coal Co., 6 FMSHRC 34, 37 n. 4 (Jan. 1984) that root falls continue to be
recognized by Congress, the Secretary of Labor, the Commission, and the mining industry as one
of the most serious hazards in mining and remain the leading cause of death in underground coal
mines).
33 FMSHRC Page 1020

potential grave danger for four days, and this factor, on balance, tips in favor of an unwarrantable
failure finding. (Tr. ill 44-46).

5.

The Operator's Knowledge of the Existence of the Violation, Whether
the Violation was Obvious, and the Reasonableness of the Operator's
Purported Good-Faith Disagreement with MSHA as to What
Constitutes a Reportable Roof Fall

I agree with the Secretary that the record evidence establishes that the violation was
obvious and that Pine Ridge knew or should have known that the roof fall was reportable. As
explained above, irrespective of the anchorage zone issue,40 there was an unplanned roof fall in
active workings that impaired ventilation and impeded passage. The record evidence establishes
that these conditions were obvious and triggered a reporting obligation by foreman Pauley and
mine manager Belcher. Accordingly, I find that Pine Ridge did not have any reasonable, goodfaith belief that the unplanned roof fall did not occur in active workings, did not impair
ventilation, and did not impede passage. ·

As found above, foreman Pauley was in close proximity to the roof fall when it fell on the
continuous miner during active mining while turning the left cross cut. The fall was obviously
unplanned. When Pauley approached the rock fall location, he noticed that Kinder and Daniels
were visibly shaken up. (Tr. II 288, 290). The rooffall nearly missed Daniels, where he was
working. (Tr. I 107-08). In discovery, Respondent conclusively admitted "active workings."
Reliance on hearsay to the contrary from. \NVOMHST inspectors has been specifically
discredited.
Foreman Pauley forther noticed that during the roof fall process, the continuous miner
tore out a couple of roof bolts that were at tlie edge of the cut (Tr. ll 189, 193, 201), and the ·
boom of the miner caught the line curtain and pulled it down. A~ a result of the roof fall. there
were no ventilation controls in the face. area and the line curtain was greater than 50 teet outby
the face of the No. 6 entry, about 67-70 feet back. (Tr. I 97, 254, 355. 359; Tr. Il 15, 159, 369;
R. EXh 10). The fall extended several feet into the bolted No. 6 entry from unbolted 6 left, about
halfway to the second row ofroofbolts. (G. Ex. 5, p. 4; G. Ex. 6, p. 6; R. Ex. 10 ).
A '"confrontation" ensued when the UMWA representative challenged Pauley concerning
whether the fall was a reportable accident. (Tr. Il 190-91 ). Despite the confrontation; the fact
that mere reporting was not a violation; the fact that there were parallel surface cracks in the roof

'"Respondent raised substantial arguments concerning good-faith disagreement with
MSHA over whether the unplanned roof fall was at or above the anchorage zone. Based on
decades of collective mining experience, Respondent's witnesses testified that reportability was
triggered at or above the length of the bolt, and that MSHA had never informed them differently.
(Tr. Il 344, 440-41; Tr. ill 12 ). Since I have found it unnecessary to pass on prong one of the
disjunctive definition of "accident," which is the only prong that addresses "anchorage zone," I
find it unnecessary to decide whether Respondent held an objectively reasonable belief that the
roof fall was below the anchorage zone.

33 FMSHRC Page 1021

even before the fall; the fact that the fall extended into the bolted entry and roof bolts had been
pulled out, thereby compromising safe passage to the face under fully supported top; and the fact
that the only ventilation control in the entry had been tom down and remained non-compliant
with MSHA requirements, Pauley decided that the roof fall was not reportable.
At trial, Pauley admitted that when a curtain is down, ventilation is automatically
compromised (Tr. II 279), and he testified that a downed curtain impedes ventilation (Tr. II 280),
and always impairs the volume of air in the area. (Tr. 280). Belcher conceded that line curtain
takes noxious gas, coal dust, and bad air down the return and back out, and that all ventilation
curtains or controls should be in place, even when the section is idle. (Tr. II 346-47). On cross
examination, Belcher conceded that the ventilation curtain should have been within 50 feet of the
face. (Tr. 369-70). Respondent's shift reports further establish that ventilation was impaired
after the rock fall.
The credible evidence also establishes that as a result of the roof fall, it was obvious that
passage to the No. 6 face under fully supported top was impeded. Pauley knew that the roof fall
dislodged roof supports creating an area of unsupported top. Thus, Pauley knew or should have
known that there was no way for Respondent to conduct the required examinations at the No. 6
face because the roof fall compromised the support in the entry and precluded travel to the face
under fully supported roof as required by 30 C.F.R. §75.202. (Tr. I 253, 317, 355-57; Tr. II).
The danger impeding passage caused Belcher to breaker off and begin conducting examinations
at the breaker posts. (Tr. I 206-07, 356; Tr. II 245; Tr. ill 34).
Pauley' s report to Belcher is telling as Pauley failed to give Belcher a fu11 and accurate
account of the situation so that Belcher cou:d make an accurate judgment cail on reportability.41
fu fact, based on discussions with his crew, Pauley had alr~ady made up his mind that the fall
was not reportable, and I find that his report to Belcher was tailored to arrive at this conclusion.
Based on Pauley' s explanation, Belcher agreed that the roof fall was not reportable. (Tr. ll 194,
299-300). As Belcher put it, "I had to trust his judgment, what he told me on the mine phone
that day," to-meet the 15-minute reporting requirement. (Tr. II 404). "Ifl'm wrong, I'm wrong: if
I'm right, I'm right." (Tr. II 406).
Belcher was wrong and failed to make reasonable inquiry. Pauley was not forthcoming.
The fall did pull out roof bolts and resulted in unsupported top and a downed ventilation control.
Pauley knew this, but did not tell Belcher, at least not according to Belcher. Pauley never
explained why he called out a fall that purportedly was just part of normal mining and not
reportable. Further, Belcher performed a perfunctory investigation and inquiry. His testimony
indicated an initial cavalier attitude toward the roof fall, describing it as not ~ven a close call
based on Pauley's account, but one wonders why Belcher would need to clear his conscience
when purportedly talking to Herron on August 14, if this was the case. Belcher never asked
Pauley why the rock had a bolt in it, if the fall did not pull out roof bolts. Belcher did not talk to
Kinder or Daniels, who were directly involved in the roof fall. Belcher did not ask anyone
underground to immediatdy confirm Pauley' s assessment, as Martin did not examine the fall
until shortly after commencement of the next shift.

41

See page 6, infra, citing Tr. II 314-17.
33 FMSHRC Page 1022

Based on the totality of record evidence, I reject any argument that Pine Ridge did not
know or should not have known that there was unplanned roof fall in active workings that
impaired ventilation and impeded passage, or that such conditions were not obvious. The
Commission has held that an operator's supervisors are held to a high standard of care, and that a
foreman's involvement by failing to recognize the violation and take reasonable precautionary
measures may be a factor supporting an unwarrantable failure finding. See e.g., Lafarge
Construction Materials, 20 FMSHRC 1140, 1145-1148 (Oct. 1988), citing Midwest Material
Co., 19 FMSHRC 30, 34-35 (Jan. 1997).
Based on the foregoing, I find that foreman Pauley and mine manager Belcher failed to
exercise the heightened standard of care required of them, respectively, in reporting and
investigating the rock fall to assess reportability. Accordingly, I find that Respondent knew or
should have known that the roof fall was reportable based on facts that made it obvious that there
was an unplanned roof fall in active workings that impaired ventilation and impeded passage.

6.

The Operator's Efforts in Abating the Violation

An operator's efforts to abate the violative condition is a factor relevant to determining
whether a violation is unwarrantable. Thus, where an operator has been placed on notice of a
problem, the level of priority that the operator places on the abatement. of the problem is relevant.
10 Coal, 31 FMSHRC at 1356, citing Enlow Fork Mining Co., 19 FMSHRC 5, 17 (Jan. 1997).
The focus on the operator's abatement efforts is on-those efforts made prior to the citation or
order. Id.
·

In this case, I place great weight on inspector Eiiison·s detailed testimony, as
corroborated by his contemporaneous notes, that Pme Ridge engaged in "very, very poor efforts"
to abate the violation. (Tr. I 119). As noted, the condition was obvious and. should have been
reported immediately. (Tr. 1121, 219). Ellison credibly testified that when he initially observed
the condition underground on August 17, he told safety specialist Ray that the fall was reportable
. and explained why. (Tr. I 19; G. Ex. 5. p. 7) Thereafter, at 1:15 p.m., Ellison told shift foreman
Martin and section foremen Pauley that the fall needed to be reported. No call was made. Once
on the surface at about 2 p.m., Ellison told Belcher and Ashby about the 15-minute reporting rule
and why Respondent was required to report the fall to the MSHA hotline. (Tr. 119; G. Ex. 5, pp.
7-8). Ashby told Ellison that he would make the call. No call was made. Nearly an hour later at
2:55 p.m., when Ellison asked if Ashby had reported the fall, Ashby replied, ''Not yet. I'm
getting ready - - getting ready to." (Tr. I 120; G. Ex. 5, p. 8). After consulting supervisor Price,
Ellison began drafting the instant 104(d)(l) Order.
As noted, Respondent was required to report the fall immediately on August 13, i.e.,
within 15 minutes of its occurrence when Pauley had the requisite knowledge of its reportability.
By the time Ellison inspected, it was four days later, and Respondent continl,led its failure to
report the roof fall accident despite Ellison's repeated requests that it do so. In these
circumstances, I agree with inspector Ellison's conclusion that Respondent's unjustifiable

33 FMSHRC Page 1023

intransigence exhibited "reckless disregard"42 for the reporting requirement. (Tr. I 121-23, 219220). Respondent's inaction exhibited a gross and continuing lack of care for the reporting
requirement that it deemed unworthy of its attention. fu fact, Respondent did not even report the
accident to MSHA until after inspector Ellison wrote the Order.
fu these circumstances, I agree with inspector Ellison that the abatement efforts of
Respondent exhibited reckless disregard for the reporting requirement and MSHA's statutory
authority. Accordingly, this factor supports the unwarrantable faillire determination.

D.

Conclusion on Unwarrantable Failure Issue

fu sum, after considering the relevant Commission factors, I find that the violative
condition was extensive, obvious, and lengthy. Further, the failure to report the roof fall
accident heightened miners' continuing exposure to potential grave danger from other roof falls
as miners continued to work under dangerous, adverse roof conditions throughout the section.
Pine Ridge's supervisors knew or should have known through reasonable inquiry that the roof
fall was reportable. Pine Ridge did not harbor any reasonable, good-faith belief that the
.
unplanned roof fall did not occur in active workings, did not impair ventilation, and did not
impede passage. Pine Ridge's abatement efforts manifested "reckless disregard" for the
reporting requirement.·

Given the fact that the violation was obvious, dangerous, and extensive; the fact that
inspector Ellison had couipleted.his inspection of the sectiOn and Respondent did not bring the
fall to his attention; the fact that Respondent planned on cleaning up the fall and punching to the
surface through another entry; and the fact that Respondent engaged in self-help without simple
notification to MSHA, I conclude that the totality of record evidence supports the itifer'enc.c that
· Respondent, acting through Pauley, Belcher, or both, made a. conscious decision to refrain from
reporting what should have been known as a reportable roof fall. I infer that Respondent C!Cted ·
intentionally and at least with a "serious lack ofreasonable care" in failing to report the fall
immediately to MSHA. In my view, the entire record supports the inference that Pine Ridge
consciously.and deliberated failed to report the fall based on a calculated risk that it would not
get caught. As the Secretary points out near the outset of her brief, Respondent ''was caught, and
the Secretary's 104(d)(l) order must be affirmed and an appropriate penalty imposed."

42

As Judge Paez recently noted in Stil/house Mining, supra, Slip op. at 7, the term
"reckless" is commonly understood as ''without thinking or caring about the consequences of an
action [or inaction]," citing The New Oxford American Dictionary 1414 (Erin McKean ed., 2d
ed. 2005). As a legal term, "reckless" conduct is "[c]haracterized by the creation of a substantial
and unjustifiable risk of harm to others and by a conscious (and sometimes deliberate) disregard
or indifference to that risk; heedless; rash .... more than mere negligence: it is gross deviation
from what a reasonable person would do." Black's Law Dictionary 1298 (8th ed. 2004). The
term "disregard" is commonly understood as ''to treat without fitting respect or attention: to treat
as unworthy of regard or notice: to give no thought to: pay no attention to. Webster's Third New
International Dictionary (Unabridged) 665 (1993). I note that for civil penalty purposes, 30
C.F.R. §100.3, Table X, defines "reckless disregard" as "conduct which exhibits the absence of
the slightest degree of care."

a

33 FMSHRC Page 1024

E.

Civil Penalty Principles

The Commission 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 assessL.1.g civil monetary penalties, the
Commission [ALJJ shall ~onsider" 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 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 compliance after notification of
a violation.
22 FMSHRC at 600, citing 30 U.S.C. § 820(r, (italics added).

In keq>ing with rhis statuiory re~illirement, the Commission bas held that "findings of fact

on_ the statutory penalty criteria must be made" by its judges. Sellersburg Stone Co., -5 1'MSHRC ·
287, 292 (I\far. l 983 ). Once findings on the statutory criteria have f:>een made, a judge's penalty
assessment for a particular '\iofation is an exercise of discretion, which is bounded by prop~r
considera~ion for the statutory criteria and the deterrent purposes· of the Act. ·Id. at 294, Cantero
Green, 22 FMSHRC 616, 620 (May 2GOO).

In exercismg this discretion, the Commission has r~ently reiterated that a judge is not
bound by the penalty recommended by the Secretary. Spartan Mining Co., 30 FMSHRC 699;
723 (Aug. 2008). In addition, the de novo assessment of civil penaJties 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). However, when a penalty determination
"substantially diverge[s] from t.1iose originally proposed, it behooves the ... judge[] to provide asufficient explanation of the bases underlying the penalties assessed. Spartan .M~ining, 30
FMSHRC at 699. Otherwise, without an explanation for such a divergence. the "credibility of
the administrative scheme providing for the increase or lowering of penalties after contest may be
jeopardized by an appearance of arbitrariness." Sellersburg, 5 FMSHRC at 293.

F.

Explanation for Civil Penalty Assessed

As noted. Section 11 O(i) of the Mine Act sets forth the criteria to be considered in
determining an appropriate civil penalty. In addition, since Order No. 8093139 was issued under
§ 104(d)(l). § 110(a)(3)(A) of the Act requires that the minimum penalty shall be $2,000.00.
Here, the Secretary's Petition ha<> proposed assessment of the statutory minimwn penalty of
33 FMSHRC Page 1025

$2,000.00 for the§ 104(d)(l) violation. 43 Addressing the appropriate penalty criteria in light of
the facts in the record and the rationale in the Final Rule, I find that the statutory minimum
penalty of$2,000.00 is insufficient to have the requisite deterrent effect for the unwarrantable
failure at issue.
The parties stipulated to the authenticity of the Violator Data Sheet attached to the
Secretary's Petition for Assessment of Civil Penalty. (Tr. I, 15-16; see G. Ex: 1). Respondent
introduced no evidence to the contrary. Pine Ridge's history of previous violations is based on
both the total number of violations and the number of repeat violations of the same provision of a
standard in the preceding-15 month period prior to August 17, 2009. 30 C.F.R § 103.3(c). The
un-rebutted record establishes that Pine Ridge has approximately 1.43 violations per inspection
day and a repeat history of violating 30 C.F.R. § 50.10 three times in the 15 months preceding the
instant 104(d)(l) Order.
As noted, Pine Ridge was more than negligent with respect to the actual violation, i.e, the
failure to report the roof fall accident immediately.44 Rather, as explained above, Respondent's
unjustifiable intransigence in failing to report the.accident exhibited "reckless disregard," defined
in Part 100.3(d) table X for penalty purposes as ". . . display[ing] conduct which exhibits the
absence of the slightest degree of care." As found herein, Respondent's inaction exhibited a
gross and continuing lack of care for the repoi;-ting requirement that it deemed unworthy of its
attention.
l have found that Pine Ridge did not have any reasonable, good-faith belief that the : .
unplanned roof fall did not occur in active workings, did not impair ventilation, and.did not
impede p~ssage. Similarly, Pine Ridge ·did not dem011strate good-faith by attempting to achieve
rapid complianc_e after notification of the violation. Only alter multiple discussions and the
104(d)(l) order was· drafted did Resp~rident belatedly notify MSHA four days after the "near
miss" accident. Although the gravity of the vioJation as set forth in inspector Ellison's Order was
no likelihood of i1~iury, no lost work days, and non-S&S, I have found that the failure to
immediately report the roof fall, hampered the timely mobilization ofMSHA's expert personnel
and heightened the exposure of miners to potential grave danger from adverse roof conditions
throughout the East Section for several days before a detailed rehabilitation plan was in place. .
Finally, the appropriateness oftht penalty to the size of Pine Ridge's business is
calculated. by using the size of the mine cited and the size of the mine's controlling entity. Pine
Ridge's Big Mountain No. 16 is a very large underground coal mine, which takes several months
to fully inspect (Tr. I 55), has annual tonnage of over 1,000,000 to 2,000,000, and has a
controlling entity, Patriot Coal Corporation, with annual tonnage of over 10,000,000. (G. Exh. 1
and 30 C.F.R § 103.Jtb) Tables I and II). Pine Ridge declined to stipulate that payment of civil
penalties would not affect its ability to remain in business, but it failed to offer any argument or

43

I note that§ 110(a)(3)(B) of the Act requires a minimum penalty of$4,000.00 for any
order issued under section 104(d)(2).
44

Respondent' s prudent action in breakering off the No. 6 entry where the roof fall
occwTed is not a mitigating factor with respect to the actual violation, i.e., the failure to report.
33 FMSHRC Page 1026

evidence that its ability to continue in busmess would be impaired. Sellersburg, 5 FMSHRC at
294, citing Buffalo Mining Co., 2 IBMA 226, 247-48 (Sept. 1973). Moreover, Pine Ridge failed
to introduce any :financial information or other specific information on the issue of whether the
proposed penalty, which merely adopted the statutory minimum of $2,000.00, was inappropriate
to the size of Respondent's business or adversely affected its ability to remain in business.
Absent proof that the imposition of authorized penalties would adversely affect Pine Ridge's
ability to stay in business, it is presumed that no such adverse affect will occur. See Broken Hill
Mining Co., 19 FSSHRC 673, 677 (Apr. 1997) (citing Sellersburg, 5 FMSHRC at 294, which
cited Buffalo Mining Co., 2 IBMA 226, 247-48 (Sept. 1973); accord Spurlock Mining Co., 16
FMSHRC 697, 700 (Apr. 1994). See also Steele Branch Mining, 18 FMSHRC 6, 15 (Jan. 1996).
Given the large size of Respondent's business and the other penalty criteria discussed
above, I find that an increased penalty of$6,000.00 against Pine Ridge is based on a proper
consideration ~f the statutory criteria, the deterrent purpose of the Act, and the rationale in the
Final Rule.. Cf Sellersburg, 5 FMSHR~ at 294-95. This results in an increase from the required
statutory minimum penalty of $2,000.00 by the amount of $1,000.00 for each day tlie failure to
report the roof fall accident continued while miners were exposed to adverse roof conditions
throughout the East Section.

·.IV.ORDER
For the reasons set forth above, Order No. 8093139 is AFFIRMED, as written, thus
establishing an· unwarrantable failure to -report a roof fall accident within 15 minutes under 30
C.F.R. § 50.10. Witbin40 days ofthe date of this decision, Respondm'.it, Pine RidgeCoal
·Company is ORDERED TO PAY a civil penalty of$6,000.00 for its unwarrantable failure to
report the roof fall accident. Upon payment of the penalty, this proceeding is DISMISSED.

/Jnw,I.~~

I

Thomas P. McCarlhy
Administrative Law Judge

Distribution: (E-Mail and Certified Mail)
Jessica R. Hughes, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209-2247
Melissa Robinson, Esq., Jackson & Kelly, PLLC, 500 Lee St. East, Suite 1600, P.O. Box 553,
Charleston, WV 25322

/cp

33 FMSHRC Page 1027

33 FMSHRC Page I 028

ADMINISTRATIVE LAW JUDGE ORDERS

'

'

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N. W., SUITE 9500
WASHINGTON, D.C. 20001
(202) 434-9950

MAPLE COAL COMPANY,
Contestant

April 11, 2011
CONTEST PROCEEDINGS
Docket No. WEVA2011-1318-R
Citation No. 8123869;02/25/2011
Docket No. WEVA 2011-1319-R
Order No. 8123871;02/28/201 l

v.

Docket No. WEVA 2011-1320-R
Order No. 8123873;02/28/201 l
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent

MAPLE COAL COMPANY,
Contestant

Docket No. WEVA2011-1321-R
Citation No. 8123876;03/0I/2011
Maple Eagle No. 1 Mine
Mine ID 46-04236
CONTEST PROCEEDINGS

Docket No. WEVA 2011-1403-R
Citation No. 8123841;02/0l/2011
Docket No. WEVA 2011-1404-R
Citation No. 8123842;02/01/201 l
v.

Docket No. WEVA2011-1405-R
Citation No. 8123844;02/0l/2011
DocketNo. WEVA2011-1406-R
Citation No. 8123856;02/08/201 l
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH.
ADMINISTRATION, (MSHA),
Respondent

Docket No. WEVA 2011-1407-R
Citation No. 8123859;02/14/201 l
Docket No. WEVA 2011-1408-R
Citation No. 8123864;02/16/201 l
Docket No. WEVA2011-1409-R
Citation No. 8123866;02/16/201 l
Docket No. WEVA2011-1410-R
Order No. 8123846;02/01/201 l
33 FMSHRC Page 1029

Docket No. WEVA 2011-1411-R
Order No. 8123853;02/08/201 l
Docket No. WEVA 2011-1412-R
Order No. 8123855;02/08/201 l
Maple Eagle No. 1 Mine
Mine ID 46-04236

DER PERMITTING LATE FILING OF CONTESTS
AND ORDER OF
CONSOLIDATION
Before: Judge Barbour
On April 13, 2011 counsel for Maple Coal Company ("Maple") moved to late file
contests of seven citations issued pursuant to section 104(a) of the Mine Act, 30 U.S.C. § 814(a),
and three orders issued pursuant to section 104(d)(2) of the Act, 30 U.S.C. § 814(d)(2). Three of
the citations and one of the orders were issued to Maple on February 1, 2011, one of the citations
and two of the orders were issued to Maple on February 8, 2011, one of the citations was issued
on February 14, 2011, and two of the citations were issued to Maple on February 16, 2011.
Section 105(d) of the Act, 30 U.S.C. § 815(d), requires contests of such citations and orders to be
filed within 30 days of their issuance.

As grounds for its motion, the Company points out that penalties have not yet been
assessed for. the violations alleged in the citations and orders. Mtn. 2. Maple also states that prior
to the issuance of the subject citations and orders, the Company was advised on December 17,
2010 that its mine was subject to a Potential Pattern of Violations designation. In response,
Maple adopted an improvement program designed to reduce the number of S&S violations at its
mine. Id. It also monitored those citations and orders with S&S findings. As a result, on February
22, 2011 the company's representative, Senior Manager Ronald Wooten, by letter requested a
conference with MSHA District 4 personnel to administratively present the company's defenses
to the S&S findings contained in the 10 subject citations and orders. Wooten wanted to persuade
MSHA to modify the findings. Mtn 2.
Between March 2, 2011 and March 18, 2011 Wooten met with MSHA CLR Dana Hosch
to discuss the citations, orders and the S&S findings. Maple contends that Hosch told Wooten
that the District Manager would make the final decision regarding any modifications, and that he,
Hosch, would write a report to the District Manager presenting Maple's arguments. Mtn. 3.
Maple asserts that because it believed its positions with regard to the citations and orders would
be considered, it did not file contests of the subject enforcement actions. Mtn. 3.

33 FMSHRC Page 1030

Maple states that on March 20, 2011 the District Manager informed Wooten that he
would need a few days to consider Maple's arguments. However, on April 8, 2011 the District
Manager sent a letter to Maple advising the company that its rate of S&S violations for the first
quarter of the year exceeded the target goal established by MSHA, and stated that the mine was
currently being evaluated by MSHA for Pattern of Violations ("POV") status. Mtn. 3. Maple then
sought expedited late review of the citations and orders because ·they form part of the basis
for Maple's potential POV status designation. Id. 4. (Four additional citations for which the
company had filed timely contests are included in its request for expedited review.)
As grounds for acceptance of its contests Maple asserts it relied to its dclnment on
MSHA's conferencing process. Motion 5. It also maintains that a balancing of the equities weigh
in its favor. Because the facts of violation and the findings of the inspectors, including the S&S
findings, will be subject to trial in any event when the forthcoming penalties are contested by the
company, the only question is when the merits will be tried, not if they will be tried. Id. Further,
iflate filing is denied Maple will be prejudiced because its mine may be placed in a POV status
subjecting it to "one ofMSHA's most severe forms of enforcement." Id. Thus, if the contests are
not allowed, until the penalty proceeding is completed the Company may find itself "erroneously
and unjustly" subject to MSHA's POV enforcement, upon which it should not have been placed
in the first place." Motion 6.
The Secretary opposes the motion. She notes that there is nothing mutually exclusive
_about its conference procedures and the right of an operator to contest citations and orders. She
asserts Maple could and should have filed timely contests while at the same time pursued the
agency's conferencing procedures. Op. Mtn. 2. Rather than file cont('.sts, Maple took its chance
that a sufficient number of S&S findings would be modified or vacated as a result of its
conferences with MSHA. Maple chose how to proceed and now should live with the
consequences of its choice. Id. 4-5.
The Secretary also argues that the Company is overstating the potential consequences of a
POV designation. It is, she suggests, no more onerous than the mine being under a section 104(d)
order sequence. 30 U.S.C. §814(d). Op Mtn. 6.

RULING

I am not persuaded by the Company's detrimental reliance argument. I agree with MSHA
that the most plausible read of the Company's motion is that it did in fact choose to conference
the subject citations and orders and that the Maple only decided to bring the contests after it
became clear the result of conferencing the citations and orders would be unsatisfactory to the
Company
While its choice was unfortunate, I do not agree with the Secretary that it prevents
acceptance of Maple's late filed contests. In my opinion, the equities favor the Company. While it
33 FMSHRC Page 1031

is true the company can contest the S&S findings in a forthcoming civil penalty case, that case is
months down the road, and the Company faces the possibility that in the meantime it mine will
have to operate under a POV designation, one that may be invalidated when the civil penalty
proceeding is decided. The Secretary's assertion that a POV designation is no more burdensome
than being placed on a "d" chain is not convincing. Under section 104(e) of the Act, 30 U.S.C.'
814(e), a violation issued with an S&S finding requires closure of the affected area and the
withdrawal of miners until the violation is abated. Unlike an order issued under section 104(d),
an attendant high level of negligence is not required for the closure to take effect. S&S findings
are commonly made by the Secretary's inspectors. Under a POV designation an operator faces a
sanction that carries a highly disruptive potential. The sooner a mine's POV status is clarified the
better.
For these reasons, the motion to permit late filing IS GRANTED. In addition, and in
order to permit the most expeditious resolution of the POV issue, the motion to consolidate the
I 0 subject contest proceedings with the previously filed four·contest proceedings also IS
GRANTED." A hearing in these matters will be scheduled subsequently.

J)vJfcl~
David Barbour
·
Administrative Law Judge
Distribution:
F. Thomas Rubenstein, Esq., Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Suite 310,
Morgantown, WV 26501
· Thomas Paige, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd
Floor West, Arlington, VA 22209-2247

33 FMSHRC Page 1032

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

April 18, 2011
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVlLPENALTYPROCEEDING
Docket No. LAKE 2010-315
A.C. No. 11-02752-206211-01

V.

AMERICAN COAL COMPANY,

Mine: Galatia Mine

Respondent

ORDER DENYING MOTION TO APPROVE SETTLEMENT
Before:

Judge McCarthy

This case is before me upon a petition for assessment of a civil penalty filed under section
105(d) of the Federal Mine Safety and Health Act ofl977. It involves a single, section 104(a)
citation designated as significant and substantial (S&S). The citation was issued on August 20,
2009 after an accident occurred at the Respondent's underground bituminous coal mine, the
Galatia Mine, ill Galatia, Illinois.
Citation No. 6683272 alleges the following condition or practice:
The D9 dozer ~perator at the New Future raw coal stockpile was positioned in a
hazardous location over the bridge/void condition created by coal reclaiming
operations beneath the storage pile. The operator trammed the dozer across the
stockpile above the #2 feeder. An unseen void was present above the feeder due
to the #2 feeder being started by the mine control attendant without informing the
dozer operator. The lights that indicate which feeders are operating could not
been (sic) seen from all areas on the stockpile due to excessive height of the coal
stockpile. The coal above the void collapsed as the dozer was being trammed
across it and the right side of the dozer dropped into the void. An ignition,
possibly caused when methane was released from the void, occurred shortly after
the dozer dropped into the void. The heat from the ignition caused severe burns to
the operator.
The inspector evaluated gravity as an injury occurred, which could reasonably be expected to be
permanently disabling and was S&S. Negligence was characterized as moderate.

33 FMSHRC Page 1033

On August 24, 2009, additional time was granted to terminate the citation after an
electrical contractor installed additional lights to indicate which feeders were running. The
citation was eventually terminated on September 8, 2009 when additional lights were installed in
an effort to inform dozer operators which feeders were running so they would refrain from
positioning the dozer in hazardous locations above the operating feeders.
The Solicitor has filed a motion to approve settlement. A reduction in the penalty from
$7,578.00 to $3,405.00 is proposed. The Solicitor also requests that the Citation be modified to
reduce the level of negligence from "moderate" to "low." For the reasons set forth below, the
motion to approve settlement is denied.
In the Motion to Approve Settlement and Dismiss Proceedings, the Secretary relies on the
fact that "[t]he dozer operator exited the vehicle and he sustained severe burns from the heat of
the ignition." The Secretary then accepts Respondent's argument ''that it could not have fo:r:eseen
that the dozer operator would exit the dozer onto the raw coal pile and, therefore, the negligence
should be less than was citeq" and the civil penalty reduced.
The authority of Commission judges to review settlement agreements filed by the
Secretary and mine operators is found at section 11 O(k) of the Act, which provides in relevant
part: "No proposed penalty which has been contested before the Commission under section
105(a) shall be compromised, mitigated, or settled except with the approval of the Commission."
30 U.S.C. § 820(k). The Commission has held that section l lO(k) "directs the Commission and
its judges to protect the public interest by ensuring that all settlements of contested penalties are
consistent with the Mine Act's objectives." Knox County Stone Co., 3 FMSHRC 2478, 2479
(Nov. 1981 ).

In Knox County, the Commission further explained the role of its judges in reviewing
settlements:,
The judges' front line oversight of the settlement process is an adjudicative
function that necessarily involves wide discretion. While the scope of this
discretion may elude detailed description, it is not unlimited and at least some of
its outer boundaries are clear.... [We] reject the notion ... that Commission
judges are bound to endorse all proposed settlements of contested penalties.
However, settlements are not in disfavor under the Mine Act, and a judge is not
free to reject them arbitrarily .... Rejections, as well as approvals, should be based
on principled reasons. Therefore, we (have] held that if a judge's settlement
approval or rejection is "fully supported" by the record before him, is consistent
with the statutory penalty criteria, and is not otherwise improper, it will not be
disturbed. In reviewing such cases, abuses of discretion or plain errors are not
immune from reversal.

Id. at 2479-80.

33 FMSHRC Page 1034

The Comniission outlined the parameters of its responsibility for assessing civil penalties
in Douglas R. Rushford Trucking, 22 FMSHRC 598. 600 (May 2000). The Commission stated:
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. (italics added). 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). 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 "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).
Accordingly, 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),
affd, 736 F.2d 1147 (7th Cir. 1984). Once such findings have been made, a judge's penalty
assessment for a particular violation is an exercise of discretion, which is bounded by proper
consideration pf the statutory criteria and the deterrent purposes of the Act. Id. at 294; Cantera
Green, 22 FMSHRC 616, 620 (May 2000). In exercising this discretion, the Commission has
emphasized that a judge is not bound by the amount of the penalty recommended by the
Secretary. Sparian Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). The Commission has also
emphasized, however, that when a penalty determination "substantially diverge[s] from those
originally proposed, it behooves the ... judge[] to provide a sufficient explanation of the bases
underlying the penalties assessed. Id. Without an explanation for such a divergence, the
"credibility of the administrative scheme providing for the increase or lowering of penalties after
contest may be jeopardized by an appearance of arbitrariness." Sellersburg, supra, 5 FMSHR.Cl
at293.
Applying these legal principles to the facts before me, I find no rational explanation
justifying the modification of the citation from moderate to low negligence and the concomitant
reduction in penalty by 55%. MSHA regulations define the terms "moderate negligence" and
"low negligence" for assessment of penalty purposes. See 30 C.F.R. § 100.3(d). Moderate
negligence is defined as where, "[t]he operator knew or should have known of the violative

33 FMSHRC Page 1035

condition or practice, but there are mitigating circumstances." Low negligence is defined as
where, "[t]he 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)(emphasis added).
Therefore, in order to justify the reduction of negligence from moderate to low, the Secretary
must set forth facts to show not only that there were mitigating circumstances, but that those
mitigating circumstances were "considerable."
The Secretary accepts Respondent's argument that it could not have foreseen that the
operator would attempt to exit the dozer, which had dropped into the void and ignited a
potentially flammable and explosive coal pile. Such reasoning is fallacious. One need not
engage in any extended philosophical or rhetorical debate about whether the captain of a sinking
ship must go down with it. Unlike the captain of a sinking ship, there were no considerations of
overall responsibility for crew, passengers, or cargo here. Suffice it to say that the operat~r's
action would appear to be exactly the sort of action that any reasonably prudent person would ·
take when trapped in the same or similar life-threatening circumstances. Absent a deli}Jerate ·
attempt at suicide, it would be hard to imagine that one would not attempt to exit the sunk dozer
in the burning coal pile. Contrary to the proffered settlement, that event is quite foreseeable.
Furthermore, the Secretary does not set forth any "considerable" mitigating circumstances that
would justify the modification to low negligence or the 55% reduction in penalty, and instead
relies entirely on the erroneous claim that the act of self~preservation was unforeseeable.
The injury here was serious. The severe bums could have turned fatal. Penalties must be
strong enough to adequately effectuate the deterrent purpose underlying the Mine Act's penalty.
assessment scheme. Sellersburg, supra, 5 FMSHRC at 294. I have considered the
representations and documentation submitted and I conclude that the proposed settlement is
unreasonable and inappropriate under the criteria set forth in section 1 lO(i) of the Act and would
not effectuate the deterrent purpose underlying the Act's penalty assessment scheme. The
motion to approve settlement is DENIED.

-rJuYl?"o /. 171. c~
Thomas P. McCarthy d
Administrative Law Judge
Distribution:
Emelda Medrano, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St.,
Suite 844, Chicago, IL 60604
James D. Witt, Esq., Director of Land Management, American Coal Company, 56854 Pleasant
Ridge Rd., Alledonia, OH 43902
/cp

33 FMSHRC Page 1036

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N. W., SUITE 9500
WASHINGTON, D.C. 20001
TELEPHONE 202 434-9980 I FAX 202-434-9949

April 19, 2011
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
ADMJNISTRATION, (MSHA),
Petitioner
v.

Docket No. LAKE 2008-423-M
A.C. No. 20-02461-145408

ESSROC CEMENT CORPORATION,
Respondent

ESSROC Cement Corp.

ORDER DENYING MOTION TO DISMISS
ORDER RESCHEDULING HEARING

Before: Judge Barbour
On April 05, 2011 Respondent, Essroc Cement Corporation (''Essroc"), filed a motion to
dismiss for lack ofjurisdiction. The Respondent claims the Essroc Cement Corporation facility
is not a "coal or other mine" within the meaning of the Mine Safety and Health
Act ("Mine Act"). Resp't Am. Mot. to Dismiss 1. The Respondent contends the Facility is a
"cement grinding facility and shipping terminal". Id. The Respondent states cement is produced
at the Facility by taking finished products mined and milled elsewhere and "combin[ing] these
finished products, typically via mixing and grinding processes". Id. 2.

In response,_the Petitioner argues the Facility is a mine because it engages in milling and
grinding and affects commerce by shipping cement. See Sec'y Am. Response to Resp't Mot to
Dismiss 2-3, 5. In support of its argument the Secretary submits a letter from L. Harvey Kirk~
CSP, an MSHA Senior Mine Safety and Health Specialist with over 30 years of experience in .
Portland cement manufacturing and over 15 years of experience as a cement plant production
engineer. In the letter, Kirk asserts Essroc is a Portland cement plant that performs finish
grinding and shipping. See App. to Sec'y Am. Response to Resp't Mot. to Dismiss 7. Further, he
states that grinding is a milling process. Id. 7-8.
After reviewing the parties' arguments and submissions, I can conclude that MSHA has
jurisdiction over the Facility, and I deny the motion. My conclusion is based on the fact that the
Facility is a cement plant at which milling and/or grinding is conducted thus making the facility a
"mine" within the meaning of the Act. Moreover, the facility engages in interstate commerce and
therefore is subject to the Mine Act.

33 FMSHRC Page 1037

According to Section Four of the Mine Act "[eJach coal or other mine, the products of
which enter commerce, or the operations or products of which affect commerce, and each
operator of such mine, and every miner in such mine shall be subject to the provisions of this
Act." 30 U.S.C. § 803(2006). The definition of coal or other mines includes facilities used in the
milling of materials extracted from their natural deposits. See 30 U.S.C. § 802(h)(1)(2006).
Milling is not defined in the Mine Act, but it is defined in the futeragency Agreement between
the Mine Safety and Health Administration ("MSHA") and the Occupational Safety and Health
Administration ("OSHA") ("futeragency Agreement") published in 1979. The Interagency
Agreement defines milling as "the separation of one or more valuable desired constituents of the
crude from the undesirable contaminants with which it is associated." Mine Safety and Health
Administration and the Occupational Safety and Health Administration Interagency Agreement,
44 Fed. Reg. 22,827, 22,829 (April 17, 1979). The appendix of the Interagency Agreement also
provides a list of milling processes under MSHA' s jurisdiction, which includes grinding. Id. The
futeragency Agreement provides guidance regarding the jurisdictional boundaries between
MSHA and OSHA. Sec '.Y ofLabor v. Watkins Eng'rs and Constructors, 24 FMSHRC 669, 674
(July 2002). In addition, in Secretary ofLabor v. Watkins the Commission determined that the
Interagency Agreement as a whole supports MSHA's view that the term "milling" can apply to
cement plants even ifthe facility does not separate waste from valuable material. Watkins, 24
FMSHRC at 674. In its Motion to Dismiss Respondent admits that it conducts grinding at the
Facility. Resp't Am. Motion to Dismiss 2. The definition of milling includes grinding, therefore
the Facility is a mine within the meaning of the Act. In addition, the Interagency Agreement
states MSHA has jurisdiction over mining operations that conduct grinding. Interagency
Agreement, 44 Fed. Reg. at 22,829.
The Commission has stated that "Congress intended to exercise its authority to regulate
interstate commerce to the 'maximum extent feasible' when it enacted section four of the Mine·
Act." Jerry Ike Harless Towing, Inc. and Harless, Inc., 16 FMSHRC 683, 686-687 {Apr.
1994)(citing Marshall v. Kraynak, 604 F.2d 231, 231 (3d Cir. 1979); United States v. Lake, 985
F.2d 265, 267-269 (6th Cir. 1993)). Respondent states that the clinker it uses comes from Canada.
Resp't. Am. Mot. to Dismiss 2. I find that the Facility's operations affect commerce because
products are purchased from Canada for use at the facility in Essexville, Michigan. Such a
finding is consistent with Congress' intent to exercise its power to regulate commerce to its
'maximum extent feasible' through the Mine Act. For the reasons stated above, the Respondent's
motion to dismiss for lack of jurisdiction is DENIED.

33 FMSHRC Page 1038

The hearing scheduled to begin April 26, 2011 is CANCELED. It is RESCHEDULED
to be heard beginning at 8:30 a.m. on Tuesday, July 12, 2011 in Bay City, Michigan. The
prehearing requirements set out in the February 23, 2011 Notice of Hearing remain in effect
except that discovery must be completed by June 14, 2011 and the parties must exchange
prehearing statements no later than June 28, 2011.

_j)vJ/c/.
David Barbour
Administrative Law Judge
Distribution:
Matthew Cooper, Esq., Office of the Solicitor, MSHA Litigation Backlog Project, 1999
Broadway, Suite 800, Denver, CO 80202
Danny Lowe, CMSP, Corporate Regulatory Compliance Manager, Essroc Cement Corporation,
1826 South Queens Street, Martinsburg, WV 25402

/ca

33 FMSHRC Page 1039

G:O' U.S. GOVERNMENT PRINTING OFFICE: 2011--366-038/936(1

33 FMSHRC Page 1040