March 2014
TABLE OF CONTENTS
COMMISSION ORDERS
03-10-2014

ROOT CONSTRUCTION, INC.

CENT 2013-336-M

Page 653

03-10-2014

BINDL BAUER LIMESTONE OF
SPRING GREEN, INC.

LAKE 2013-351-M

Page 656

03-10-2014

CON-AGG, INC.

LAKE 2013-415-M

Page 659

03-10-2014

MCELROY COAL COMPANY

WEVA 2013-636

Page 662

03-10-2014

LINCOLN LEASING COMPANY, INC.

WEVA 2013-726

Page 665

03-26-2014

CONTINENTAL CEMENT COMPANY,
LLC

CENT 2013-542-M

Page 668

03-26-2014

SOUTH AKERS MINING, LLC

KENT 2013-782

Page 671

03-26-2014

CLAS COAL COMPANY, INC.

KENT 2013-796

Page 674

03-26-2014

CLEAN HARBORS ENVIRONMENTAL
SERVICES, INC.

WEST 2013-899-M

Page 677

03-26-2014

EASTERN ASSOCIATED COAL, LLC

WEVA 2013-944

Page 680

ADMINISTRATIVE LAW JUDGE DECISIONS
03-06-2014

BOWMAN CONSTRUCTION CO. INC

LAKE 2011-1056-M

Page 683

03-07-2014

SEC. OF LABOR O/B/O DAVID S.
WOOD V. HIGHLAND MINING CO.,
LLC.

KENT 2014-257-D

Page 690

03-10-2014

POWER FUELS, LLC

VA 2013-403

Page 695

03-17-2014

DRUMMOND COMPANY

SE 2011-274

Page 720

03-19-2014

SEC. OF LABOR O/B/O CARLOS
LOPEZ V. SHERWIN ALUMINA, LLC
AND ITS SUCCESSORS

CENT 2012-237-DM

Page 730

03-19-2014

NALLY & HAMILTON ENTERPRISES,
INC.

KENT 2012-1031

Page 744

i

03-24-2014

EMERALD COAL RESOURCES, LP

PENN 2009-383-R

Page 754

03-27-2014

BLACK BEAUTY COAL COMPANY

LAKE 2010-39

Page 778

ADMINISTRATIVE LAW JUDGE ORDERS
03-04-2014

MARK GRAY V. NORTH FORK COAL
CORPORATION

KENT 2010-430-D

Page 797

03-04-2014

ELK RUN COAL COMPANY

WEVA 2013-1298-R

Page 805

03-06-2014

SEC. OF LABOR O/B/O J. DON
ARNOLD V. BHP NAVAJO COAL
COMPANY AND ITS SUCCESSORS

CENT 2013-541-D

Page 811

03-19-2014

OAK GROVE RESOURCES, LLC

SE 2013-301

Page 815

03-25-2014

ARMSTRONG COAL CO, INC.

KENT 2013-185

Page 822

ii

Review was granted in the following case during the month of March 2014:
Secretary of Labor, MSHA v. Maxxim Rebuild Company, LLC, Docket Nos. KENT 2013-989.
(Judge Miller, February 12, 2014)
No cases were filed in which Review was denied during the month of March 2014.

.

.

.

iii

COMMISSION ORDERS

36 FMSHRC Page 652

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

March 10, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
ROOT CONSTRUCTION, INC.

:
:
:
:
:
:
:

Docket No. CENT 2013-336-M
A.C. No. 32-00924-311309

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On March 20, 2013, the Commission received from Root
Construction, Inc. (“Root”) a motion seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).

36 FMSHRC Page 653

Records of the Department of Labor’s Mine Safety and Health Administration indicate
that the proposed assessment was delivered on January 16, 2013, and became a final order of the
Commission on February 15, 2013. Root asserts that its new safety director discovered the
delinquency while sorting through his predecessor’s documents. The Secretary does not oppose
the request to reopen and urges the operator to take steps to ensure that future penalty contests
are timely filed.
Having reviewed Root’s request and the Secretary’s response, in the interest 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.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

36 FMSHRC Page 654

Distribution:
Eric M. Dullea, 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
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
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

36 FMSHRC Page 655

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

March 10, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
BINDL BAUER LIMESTONE
OF SPRING GREEN, INC.

:
:
:
:
:
:
:
:

Docket No. LAKE 2013-351-M
A.C. No. 47-03661-305923

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On March 7, 2013, the Commission received from Bindl
Bauer Limestone of Spring Green, Inc. (“Bindl Bauer”) a motion seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).

36 FMSHRC Page 656

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on November 12, 2012, and
became a final order of the Commission on December 12, 2012. Bindl Bauer asserts that it
mailed a timely contest on November 12, 2012, and another copy on February 18, 2013, after
discovering that the first contest was not received by MSHA. The Secretary does not oppose the
request to reopen, and urges the operator to take steps to ensure that future penalty contests are
timely filed.
Having reviewed Bindl Bauer’s request and the Secretary’s response, in the interest 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.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

36 FMSHRC Page 657

Distribution:
Joseph Bauer, President
Bindl Bauer Limestone
S12317 Big Hollow Rd.
Spring Green, WI 53588
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
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

36 FMSHRC Page 658

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

March 10, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
CON-AGG, INC.

:
:
:
:
:
:
:

Docket No. LAKE 2013-415-M
A.C. No. 20-02951-311269

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On April 17, 2013, the Commission received from Con-Agg,
Inc. (“Con-Agg”) a motion seeking to reopen a penalty assessment that had become a final order
of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).

36 FMSHRC Page 659

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on January 17, 2013, and
became a final order of the Commission on February 19, 2013. MSHA mailed a delinquency
notice on April 3, 2013. Con-Agg asserts that it mailed a timely contest on February 4, 2013.
The Secretary does not oppose the request to reopen, but states that the only contest MSHA
received from the operator on that date was for another case. The Secretary urges the operator to
take steps to ensure that future penalty contests are timely filed.
Having reviewed Con-Agg’s request and the Secretary’s response, in the interest 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.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

36 FMSHRC Page 660

Distribution:
Kenneth W. Norris, President
Con-Agg, Inc.
4576 S. Mackiac Trail
Saulte Ste. Marie, MI 49783
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
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

36 FMSHRC Page 661

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

March 10, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
MCELROY COAL COMPANY

:
:
:
:
:
:
:

Docket No. WEVA 2013-636
A.C. No. 46-01437-310913

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On March 7, 2013, the Commission received from McElroy
Coal Company (“McElroy”) a motion seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).

36 FMSHRC Page 662

Records of the Department of Labor’s Mine Safety and Health Administration indicate
that the proposed assessment was delivered on January 15, 2013, and became a final order of the
Commission on February 14, 2013. McElroy asserts that its new safety supervisor was
unfamiliar with the contest process and discovered the delinquency on February 20, 2013, after
receiving a separate assessment. The Secretary does not oppose the request to reopen and urges
the operator to take steps to ensure that future penalty contests are timely filed.
Having reviewed McElroy’s request and the Secretary’s response, in the interest 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.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

36 FMSHRC Page 663

Distribution:
R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1500
401 Liberty Avenue
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

36 FMSHRC Page 664

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

March 10, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
LINCOLN LEASING COMPANY, INC.

:
:
:
:
:
:
:

Docket No. WEVA 2013-726
A.C. No. 46-08932-292862 6RP

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On April 3, 2013, the Commission received from Lincoln
Leasing Company, Inc. (“Lincoln Leasing”) a motion seeking to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act,
30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).

36 FMSHRC Page 665

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on June 26, 2012, and became a
final order of the Commission on July 26, 2012. MSHA mailed a delinquency notice on
September 10, 2012, and referred this case to the Department of Treasury for collection on
December 24, 2012. Lincoln Leasing asserts that its office administrator was experiencing
health issues which caused the failure to timely contest the assessment. Lincoln Leasing states
that it discovered the delinquency on March 13, 2013, after its counsel received a Treasury
collection notice. The Secretary does not oppose the request to reopen and strongly urges the
operator to adopt procedures to ensure that future penalty contests are timely filed.
Having reviewed Lincoln Leasing’s request and the Secretary’s response, in the interest
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.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

36 FMSHRC Page 666

Distribution:
Alexander Macia, Esq.
Spilman, Thomas & Battle, PLLC
300 Kanawha Blvd. East
P.O. Box 273
Charleston, WV 25321
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
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

36 FMSHRC Page 667

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

March 26, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

:
:
:
:
v.
:
:
CONTINENTAL CEMENT COMPANY, LLC :

Docket No. CENT 2013-542-M
A.C. No. 23-00217-315870

BEFORE: Jordan, Chairman; Young, Cohen, and Nakamura, Commissioners1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On June 10, 2013, the Commission received from
Continental Cement Company, LLC (“Continental”) a motion seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate

1

Commissioner Althen was recused from this case.

36 FMSHRC Page 668

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on March 14, 2013, and became
a final order of the Commission on April 15, 2013. Continental asserts that it mailed a timely
contest and its payment for the uncontested penalties to MSHA’s payment center in St. Louis,
MO. Continental discovered that MSHA had not processed the contest after receiving MSHA’s
delinquency notice, dated May 29, 2013, and promptly filed this motion to reopen. The
Secretary does not oppose the request to reopen, but notes that the payment center in St. Louis,
MO, is only a payment processing office which does not recognize or process contest forms.
The Secretary urges the operator to take steps to ensure that future penalty contests are timely
filed and mailed to the Civil Penalty Compliance Office in Arlington, VA.
Having reviewed Continental’s request and the Secretary’s response, in the interest 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.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

36 FMSHRC Page 669

Distribution:
Gwendolyn K. Nightengale, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
1909 K Street NW, Suite 1000
Washington, DC 20006
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
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

36 FMSHRC Page 670

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

March 26, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
SOUTH AKERS MINING, LLC

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Docket No. KENT 2013-782
A.C. No. 15-18436-313936

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On May 21, 2013, the Commission received from South
Akers Mining, LLC (“South Akers”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).

36 FMSHRC Page 671

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on February 19, 2013, and
became a final order of the Commission on March 21, 2013. South Akers’ consultant asserts
that he never received the proposed assessment and discovered the delinquency after receiving
MSHA’s late notice, dated April 11, 2013. The Secretary does not oppose the request to reopen,
but notes that MSHA received a contest form from the consultant, dated April 2, 2013, which
was 12 days after the final order date. MSHA mailed a delinquency notice on May 6, 2013. The
Secretary urges the operator and its consultant to take steps to ensure that future penalty contests
are timely filed.
Having reviewed South Akers’ request and the Secretary’s response, in the interest 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.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

36 FMSHRC Page 672

Distribution
Gerald W. McMasters
South Akers Mining
630 Washington Avenue
Paintsville, KY 41240
mcmastersg@bellsouth.net
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

36 FMSHRC Page 673

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

March 26, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
CLAS COAL COMPANY, INC.

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Docket No. KENT 2013-796
A.C. No. 15-19325-305763

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On May 24, 2013, the Commission received from Clas Coal
Company, Inc. (“Clas”) a motion seeking to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).

36 FMSHRC Page 674

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on November 13, 2012, and
became a final order of the Commission on December 13, 2012. Clas asserts that it mailed a
contest on December 15, 2012, but its payment for the uncontested citations was mistakenly
applied to this contested citation No. 8269442. The Secretary does not oppose the request to
reopen, but states that the check MSHA received at its St. Louis, MO, payment center, did not
include a contest form. The Secretary urges the operator to take steps to ensure that future
penalty contests are timely filed and mailed to the Civil Penalty Compliance Office in Arlington,
VA.
Having reviewed Clas’ request and the Secretary’s response, in the interest 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.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

36 FMSHRC Page 675

Distribution:
Tom W. Dean
Accountant
Clas Coal Co., Inc.
P.O. Box 420
Coeburn, VA 24230
twdean4bama@hotmail.com
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
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

36 FMSHRC Page 676

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

March 26, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
CLEAN HARBORS ENVIRONMENTAL
SERVICES, INC.

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Docket No. WEST 2013-899-M
A.C. No. 02-00024-317010 RUZ

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On June 17, 2013, the Commission received from Clean
Harbors Environmental Services, Inc. (“Clean Harbors”) a motion seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).

36 FMSHRC Page 677

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on March 28, 2013, and became
a final order of the Commission on April 29, 2013. Clean Harbors asserts that it mistakenly
believed that it did not need to contest the proposed assessment because it had previously
contested the underlying citations. Clean Harbors’ counsel discovered the delinquency after
receiving MSHA’s late notice dated May 16, 2013. Clean Harbors states that it now understands
that a separate notice must be submitted to contest a proposed assessment and has taken steps to
ensure that this mistake does not happen again. The Secretary does not oppose the request to
reopen.
Having reviewed Clean Harbors’ request and the Secretary’s response, in the interest 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.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

36 FMSHRC Page 678

Distribution:
Dale B. Rycroft, Jr., Esq.
The Rycroft Law Firms, PLLC
2929 N. Power Rd., Suite 101
Mesa, AZ 85215
drycraft@rycraftlaw.com
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
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

36 FMSHRC Page 679

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

March 26, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
EASTERN ASSOCIATED COAL, LLC

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Docket No. WEVA 2013-944
A.C. No. 46-05295-313257

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On May 28, 2013, the Commission received from Eastern
Associated Coal, LLC (“Eastern”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).

36 FMSHRC Page 680

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on February 6, 2013, and
became a final order of the Commission on March 8, 2013. Eastern asserts that its safety
manager received the proposed assessment on February 14, 2013, and believed that his contest
on March 15, 2013 was timely. The Secretary does not oppose the request to reopen, and notes
that MSHA received a contest form postmarked March 15, 2013, and a payment for the
uncontested penalties, by check dated March 19, 2013. The Secretary urges the operator to
adopt procedures to ensure that future penalty contests are timely filed.
Having reviewed Eastern’s request and the Secretary’s response, in the interest 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.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

/s/ William I. Althen
William I. Althen, Commissioner

36 FMSHRC Page 681

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
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

36 FMSHRC Page 682

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
Office of Administrative Law Judges
th
721 19 Street, Suite 443
Denver, CO 80202-2536
303-844-3577 / FAX: 303-844-5268

March 6, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
BOWMAN CONSTRUCTION CO. INC,
Respondent

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CIVIL PENALTY PROCEEDING
Docket No. LAKE 2011-1056-M
A.C. No. 21-02393-263615
Mine: Rainier Quarry

DECISION
Appearances:

Suzanne F. Dunne, Esq., Office of the Solicitor, U.S. Department of
Labor, Chicago, Illinois; Dan L. Venier, Conference and Litigation
Representative, Mine Safety and Health Administration, U.S. Department
of Labor, Duluth, Minnesota, for Petitioner;
Deborah Bowman, Bowman Construction Company, International Falls,
Minnesota for Respondent

Before:

Judge Manning

This case is before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”),
against Bowman Construction Co., Inc., (“Bowman Construction” 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 “Act” or “Mine Act”). The parties introduced testimony and documentary evidence at a
hearing held in Duluth, Minnesota. In lieu of filing post-hearing briefs, the parties presented
closing argument at the hearing.
Though primarily engaged in the construction industry, Bowman Construction owns and
operates the Rainier Quarry (“Quarry”) on its 500 acre property in International Falls, Minnesota
(the “Property”). (Tr. 45). Most of the activity at the Property relates to Respondent’s
construction business. At the Quarry, Bowman Construction engages in drilling, blasting, and
processing aggregate with a crusher, a wash plant, and various screening devices. (Tr. 21).
Bowman Construction contested the three citations at issue in this case because it does not
believe that MSHA had jurisdiction over the areas cited.
I. THE CITATIONS
On June 13, 2011, MSHA Inspector John Koivisto inspected the Property. He was
accompanied by Darwin Johnson, a foreman at the Property. Deborah Bowman, the office
manager for Bowman Construction, testified that Bowman Construction has existed for 75 years.
MSHA typically inspects the Quarry once each year and Ms. Bowman testified that, until the

36 FMSHRC Page 683

present inspection, MSHA only inspected areas in and around the Quarry. She contends that the
inspector strayed into areas of the Property that are not subject to MSHA jurisdiction.
Inspector Koivisto issued Citation Nos. 6560616 and 6560617 for conditions he
discovered upon a Maxx Super 512 trommel. One citation alleges that guarding was required on
both sides of a tail pulley on the trommel and the other alleges that the back side of the trommel
was not posted to warn people that they could be hit by falling material. (Exs. G-1, G-5).
Citation No. 6560618 was issued for a tripping hazard in a shed. (Ex. G-9). Bowman
Construction is not contesting the conditions described in the citations or the inspector’s
determinations as to gravity and negligence. The Secretary proposed a penalty of $100.00 for
each citation. For the reasons discussed below, I find that the trommel was subject to MSHA
jurisdiction at the time of the inspection but the Secretary did not establish that MSHA had
jurisdiction over the shed.
II. BASIC LEGAL PRINCIPLES
Section 4 of the Mine Act provides, in part, that “each coal or other mine . . . shall be
subject to the provisions of this Act.” 30 U.S.C. § 803. Section 3(h)(1) of the Act, in pertinent
part, defines “coal or other mine” as:
(A) an area of land from which minerals are extracted . . . (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 . . . 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 . . . used in or to
be used in, the milling of such minerals, or the work of preparing
coal or other minerals . . . . In 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.
30 U.S.C. §802(h)(1) (emphasis added).
The Senate Committee that drafted the Mine Act noted: “What is considered to be a mine
and to be regulated under this Act [shall] be given the broadest possible interpretation, and it is
the intent of this committee that doubts be resolved in favor of inclusion of a facility within
coverage of the Act.” S. Rep. No. 95-181, at 14 (1977), reprinted in Senate Subcomm. on Labor,
Comm. on Human Res., Legislative history of the Federal Mine Safety and Health Act of 1977
(“Legis. Hist.”) at 602.
To further clarify questions of jurisdictional reach, the Secretary of Labor facilitated an
interagency agreement (“Interagency Agreement”) between MSHA and the Occupational Safety

36 FMSHRC Page 684

and Health Administration (“OSHA”). 44 Fed. Reg. 22827 (April 17, 1979). This agreement
also provides procedures to resolve general jurisdictional questions between the two agencies.
III. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A. Citations issued at the Trommel
Bowman Construction owned and operated a Maxx Super 512 trommel. A trommel is a
large, round, horizontal drum that turns as a short conveyor loads material into it. (Exs. G-6, R-3
at 3). The drum is a screen and the desired material falls through the screen onto a belt that
transports the material onto a stack. Larger material is separated from the desired material and
falls out of the open end of the drum. The trommel is typically used by Bowman Construction to
process black dirt at other locations. When processing black dirt, the trommel is not subject to
Mine Act jurisdiction because it is only removing roots and rocks from top soil. During the
inspection, the trommel was on the Property but it was not located at or near the Quarry. (Exs.
G-17, R-1).
Inspector Koivisto testified that he issued Citation No. 6560616, alleging a violation of
section 56.14107(a), after noting that neither side of the 12” diameter self-cleaning tail pulley on
the trommel was guarded. (Tr. 14-15). He issued Citation No. 6560617, alleging a violation of
section 56.20011, after finding that a dangerous zone below the trommel screen was not properly
barricaded, which allowed rocks to fall 15’ onto the ground below. (Tr. 24). Inspector Koivisto
testified that he noted a round 4” rock that had fallen into the danger zone. (Tr. 24-26).
Inspector Koivisto testified that he could not cite the trommel if it was processing
exclusively recycled material. (Tr. 17). He recognized that MSHA would only have jurisdiction
over the trommel when it processes virgin material. (Tr. 17). When asked what the trommel
processed the day of the inspection, Inspector Koivisto testified that Johnson described the
material as “bank run” from offsite. Inspector Koivisto’s examination of the trommel led him to
believe that the material fed into the trommel was pit run material, which afforded jurisdiction to
MSHA. (Tr. 20-23, 26, 38, 74). Darwin Johnson told him that at least some of the sand the
trommel discharged would be taken to the wash plant for further processing. (Tr. 17). Inspector
Koivisto testified that MSHA has jurisdiction over wash plants. (Tr. 38-39). After examining
the trommel and talking to Johnson, Inspector Koivisto determined that he had jurisdiction to
issue the two citations.
Deborah Bowman emphasized that mining was a very small part of Respondent’s
construction business, occupying only 5 acres of the 500 acre Property. (Tr. 41-42, 45). She
further testified that Bowman Construction employs two miners, each for 120 days per year. (Tr.
82-83). She testified that the trommel exclusively processed recycled material and that the sand
from the trommel was not taken to the wash plant. (Tr. 45-56, 61-62). On cross-examination,
Bowman could not explain why Johnson described the material as “bank run” or why he told
Inspector Koivisto that the wash plant would be processing the sand. (Tr. 63-65). Bowman also
noted that she had no record of what the trommel processed that day. Id.

36 FMSHRC Page 685

The Secretary argues that MSHA jurisdiction over the trommel is proper because the
trommel processed virgin material and the sand exiting the trommel would be sent to the wash
plant for further processing. The Secretary relies upon the conditions that the inspector observed
as well as statements made by Johnson. The material being processed appeared to consist of the
“crude crust of the earth” rather than recycled material and the material exiting the trommel was
sand. (Interagency Agreement at Appendix A; Ex. G-6). Bowman Construction’s stockpile of
recycled material was a considerable distance from the trommel. In addition, Johnston told the
inspector that the pit run material was fed into the trommel and that at least some of the sand was
to be taken to the wash plant.
Bowman Construction contests both of these points. It argues that the trommel is outside
of MSHA jurisdiction because the trommel processed exclusively recycled material. (Tr. 47).
The maps submitted by both parties and Inspector Koivisto’s statements all confirm that the
trommel was not located near the Quarry. (Tr. 61-62; Exs. G-17, R-1). Bowman Construction
also argued that the trommel was not processing material from the Quarry. Ms. Bowman
testified that only angular basalt is found on the Property. (Tr. 44; G-7). The presence of a
round rock, therefore, proves that the materials in the trommel came onto the Property from a
construction site. (Tr. 46). Similarly, Respondent argued that its pit is not a natural source of
sand, so the sand exiting the trommel originated elsewhere. (Tr. 44-46). Bowman explained the
origin of these materials by noting that Respondent often recycles sidewalks and excess material
from landscaping sites. (Tr. 45, 49). Bowman Construction did not provide specific details
about what recyclable material was on the property that day. Finally, Respondent argues that it
would not have had any reason to wash the sand produced by the trommel.
Discussion and Analysis
I find that the Secretary established that MSHA had jurisdiction to inspect the trommel.
Section 3(h)(1) of the Mine Act defines a mine in broad terms. The Act asserts jurisdiction over
the extraction process and also “milling” and “preparing” minerals. 30 U.S.C. § 802(h)(1).
Although the Mine Act does not define “milling,” the Interagency Agreement defines it as: “the
separation of one or more valuable desired constituents of the crude [crust of the earth] from the
undesirable contaminants with which it is associated.” 44 Fed. Reg. at 22829. The term “crude”
is defined to mean “any mixture of minerals in the form in which it occurs in the earth’s crust.”
Id. Thus, MSHA jurisdiction exists, generally, when valuable minerals are separated from
earthen material.
The Interagency Agreement also provides examples of milling procedures. Among many
other processes, MSHA jurisdiction exists where minerals are “sized” (that is, separated into
groups by size) or “washed” (that is, cleaned by flowing water). 44 Fed. Reg. at 22830.
Bowman Construction did not present evidence to establish that the trommel processed
exclusively recycled material other than Ms. Bowman’s vague statement that Respondent often
recycles material from construction sites. Indeed, she testified that the material that was being
fed into the trommel came from the “ground” at an offsite location. (Tr. 46-47). It is irrelevant
that the material did not originate in Bowman Construction’s Quarry. The evidence establishes
that the material screened by the trommel was excavated from the crude crust of the earth. There

36 FMSHRC Page 686

is no evidence to establish that the material being screened was recycled material from another
source.1
The evidence persuades me that Bowman Construction’s trommel engaged in milling and
sizing at the time of the inspection and was therefore subject to MSHA jurisdiction. As stated
above, trommels are rotating cylindrical screens. When a loader or conveyor drops material onto
the trommel, the sand sifts through the screen onto a conveyor below, while large rocks, roots,
and other material remain captured by the screen. As defined by the Interagency Agreement, this
process of separating constituents from a mixture of minerals from the earth’s crust triggers
MSHA jurisdiction.
In consideration of the foregoing, I AFFIRM Citation Nos. 6560616 and 6560617.
B. Citation issued at the Shed.
Bowman Construction also owned a small shed that was a considerable distance away
from the Quarry. (Ex. R-2 at 1 and 2). According to Ms. Bowman, the shed stores equipment
and supplies used in Respondent’s construction business. The jurisdictional issue is whether
miners entered the shed.
Inspector Koivisto testified that he issued Citation No. 6560618, alleging a violation of
section 56.20003(a), for tripping hazards in what he called a “sign-out” shed located on the
Property. (Tr. 28). He noted that the clear path inside the shed was only 16 inches wide and that
a distracted employee could easily trip upon the items in the shed. (Tr. 29-31). Inspector
Koivisto testified that Johnson told him that miners entered the shed every day to fill out their
time sheets and get supplies. (Tr. 29-30). Although Inspector Koivisto recognized that he did
not have jurisdiction over the construction employees, he issued the citation because “miners
were entering” the shed. Id.
Bowman testified that she visited the shed many times and that no mining equipment or
supplies are stored therein. (Tr. 59-61). Instead, she stated that the shed exclusively stores
construction equipment, rendering it beyond the reach of MSHA jurisdiction. (Tr. 51-52). She
testified that miners do not fill out any paperwork in the shed and noted that the shed is on the
opposite side of the property from the Quarry. (Tr. 50-53, 59-61). She did not know why
Johnson told the inspector that miners use the shed. (Tr. 69-71).
Discussion and Analysis
Inspector Koivisto testified that Johnson told him that miners fill out their time sheets or
retrieve items from the shed daily. (Tr. 29-30). Bowman contradicted this testimony by
testifying that the shed only stores construction equipment and that no miners use the shed. (Tr.
1

The Secretary also contends that MSHA jurisdiction is proper irrespective of the
material processed by the trommel because the wash plant processed the sand from the trommel.
I do not need to reach this issue of fact because it is clear that the trommel screened virgin
material from the earth.

36 FMSHRC Page 687

59-61). The photos presented by Inspector Koivisto show what appears to be construction
equipment. (Ex. G-10, 11,12, 13, 14). Further, the parties agree that the shed is a considerable
distance from the mining area. (Tr. 33-37).
The Commission has held that facilities which are available to miners as well as
employees who are not miners fall under the jurisdiction of the Mine Act. See W.J. Bokus
Indus., 16 FMSHRC 704 (Apr. 1994). I have followed this precedent in other cases. See e.g.
Titan Constructors, Inc., 34 FMSHRC 403 (Feb. 2012) (ALJ).
I find, however, that the evidence presented at the hearing does not establish that miners
enter the shed and the Secretary, therefore, did not fulfill his burden to show that MSHA had
jurisdiction over the shed. There is no evidence, other than the inspector’s hearsay testimony,
that the shed stores equipment or supplies used in mining. The shed is a considerable distance
from the Quarry and the associated screening and crushing equipment. (Exs. G-17, R-1). It
seems odd that miners employed by Respondent would be required to travel to this shed to fill
out any paperwork. Miners as well as other Bowman Construction employees pass by the scale
house/office every day when they enter and exit the Property. Miners would not appear to have
any reason to pass by shed. It also does not appear that the shed would be the type of structure
where records are kept. (Exs. G-10, 11, 12, R-3).
The only evidence the Secretary offered to establish jurisdiction over the shed was the
hearsay testimony of Inspector Koivisto. In contrast, physical evidence observed by the
inspector and Ms. Bowman’s own testimony helped establish MSHA jurisdiction over the
trommel. Without an opportunity to examine Johnson and ask him questions, I cannot
determine whether the shed was subject to inspection by MSHA. It is not clear exactly what
Johnson told the inspector and Johnson could not be questioned about this issue.2 The Secretary
bears the burden of proof and I cannot uphold Mine Act jurisdiction over the shed based solely
upon the inspector’s hearsay testimony that miners enter the shed to sign out at the end of their
shift or get supplies. Citation Nos. 6560618 is VACATED.
It is important for Bowman Construction to understand that I am not holding that MSHA
does not have the authority to inspect the subject shed. I only hold that in this particular case, the
Secretary was unable to prove MSHA jurisdiction over the shed. If miners enter the shed, even
if only occasionally for short periods of time, MSHA would have the authority to inspect it.
IV. APPROPRIATE CIVIL PENALTIES
Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. Bowman Construction is a small operator that only employs two
miners, both of whom are employed in such capacity on a seasonal basis. Bowman Construction
did not receive any citations or orders in the 15 months preceding the subject inspection. The
citations were abated in good faith. The penalties assessed below will not affect the company’s
2

I recognize that hearsay is generally admissible in Commission proceedings, but I
believe it imprudent to hold that the Secretary established MSHA jurisdiction in this case solely
on the basis of hearsay. I reach this conclusion even though Johnson was a management
employee.

36 FMSHRC Page 688

ability to continue in business. The gravity and negligence findings are set forth in the citations.
The penalties proposed by the Secretary are appropriate for the two citations for the trommel.
V. ORDER
Citation Nos. 6560616 and 6560617 are AFFIRMED and Citation No. 6560618 is
VACATED. Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i),
Bowman Construction Company, Inc., is ORDERED TO PAY the Secretary of Labor the sum
of $200.00 within 30 days of the date of this decision.3

/s/ Richard W. Manning
Richard W. Manning
Administrative Law Judge
Distribution:
Suzanne F. Dunne, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St.,
Room 844, Chicago, IL 60604-1502 (Certified Mail)
Dan L. Venier, Mine Safety and Health Administration, U.S. Department of Labor, 515 W. 1st
Street, Suite 333, Duluth, MN 55802-1302 (Certified Mail)
Deborah Bowman, Bowman Construction Company, Inc., P.O. Box 151, International Falls, MN
56649-0151 (Certified Mail)

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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.

36 FMSHRC Page 689

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 Pennsylvania Avenue, N.W.
Washington, DC 20004-1710
Telephone No.: 202-434-9933
Telecopier No.: 202-434-9949

March 7, 2014
SECRETARY OF LABOR, MSHA,
on behalf of DAVID S. WOOD,
Complainant
v.
HIGHLAND MINING CO., LLC.,
Respondent

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TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. KENT 2014-257-D
MADI CD 2014-08
No. 9 Mine
Mine ID 15-02709

DECISION AND ORDER OF TEMPORARY REINSTATEMENT
Appearances:
Jennifer Booth Thomas, Esq., Malia Lawson, Esq., Office of the Solicitor, U.S. Department of
Labor, Nashville, Tennessee, for the Complainant;
Jeffrey K. Phillips, Esq., Candace B. Smith, Esq., Steptoe & Johnson, Lexington, Kentucky, for
the Respondent
Before: Judge Moran
This case is before the Court on an application for temporary reinstatement filed on
February 11, 2014, by the Secretary of Labor, acting through the Mine Safety and Health
Administration, against Highland Mining Co., LLC, pursuant to section 105(c)(2) of the Federal
Mine Safety and Health Act (AMine Act@ or AAct@) of 1977, 30 U.S.C. ' 815(c)(2).
The Application seeks an Order temporarily reinstating David S. Wood to his former position with
the Respondent at its No. 9 Mine, pending the final hearing and disposition of the discrimination
complaint. On February 13, 2014, Respondent filed a request for a hearing on the application.
Thereafter, pursuant to 29 C.F.R. ' 2700.45, a hearing was held in Henderson, Kentucky on March
5, 2014.
For the reasons which follow, for the purposes of temporary reinstatement, the Court finds
that the Secretary presented sufficient evidence at the hearing to establish that Mr. Wood engaged
in protected activity. It is undisputed that he was thereafter terminated from his employment.
Applying the applicable standard of review for such proceedings, the Court finds that a nexus
between that activity and the alleged discrimination was established and upon review of the entire
record, concludes that the complaint was not frivolously brought.
Accordingly, the Court orders that, effective with the date of this decision, Mr. David S. Wood be

36 FMSHRC Page 690

reinstated to his former position with the Respondent at its No. 9 Mine, pending the final hearing
and disposition of the discrimination complaint.
Applicable Law
The law pertaining to temporary reinstatement proceedings is well-established. As the
Commission noted in Sec=y of Labor on behalf of Ward v. Argus Energy WV, LLC, AUnder section
105(c)(2) of the Mine Act, >if the Secretary finds that [a discrimination] complaint was not
frivolously brought, the Commission, on an expedited basis upon application of the Secretary,
shall order the immediate reinstatement of the miner pending final order on the complaint.= 30
U.S.C. ' 815(c)(2). The Commission has recognized that the >scope of a temporary reinstatement
hearing is narrow, being limited to a determination by the judge as to whether a miner's
discrimination complaint is frivolously brought.= See Sec'y of Labor on behalf of Price v. Jim
Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920 F.2d 738 (11th Cir. 1990). The
Mine Act's legislative history defines the >not frivolously brought= standard as indicating that a
miner's >complaint appears to have merit.= S. Rep. 95-181, at 36 (1977), reprinted in Senate
Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 624 (1978). The >not frivolously brought= standard reflects a Congressional
intent that >employers should bear a proportionately greater burden of the risk of an erroneous
decision in a temporary reinstatement proceeding.= Jim Walter Res., Inc. v. FMSHRC, 920 F.2d
738, 748 (11th Cir. 1990) ("JWR"). . . . Courts and the Commission have likened the >not
frivolously brought= standard set forth in section 105(c)(2) with the >reasonable cause to believe=
standard applied in other statutes. Id. at 747 (Athere is virtually no rational basis for distinguishing
between the stringency of this standard and the >reasonable cause to believe= standard@); Sec'y of
Labor on behalf of Markovich v. Minnesota Ore Operations, USX Corp., 18 FMSHRC 1349,
1350, 1352 (Aug. 1996). In the context of a petition for interim injunctive relief under the
National Labor Relations Act (ANLRA@), 29 U.S.C. ' 160(j), courts have recognized that
establishing >reasonable cause to believe= that a violation of the statute has occurred is a >relatively
insubstantial= burden. See Schaub v. West Michigan Plumbing & Heating, Inc., 250 F.3d 962, 969
(6th Cir. 2001) (citations omitted). Similarly, at a temporary reinstatement hearing, the Judge
must determine >whether the evidence mustered by the miner[] to date established that [his or her]
complaint[] [is] nonfrivolous, not whether there is sufficient evidence of discrimination to justify
permanent reinstatement.= JWR, 920 F.2d 744. As the Commission has recognized, >it [is] not the
judge's duty, nor is it the Commission's, to resolve the conflict in testimony at this preliminary
stage of the proceedings.= Sec'y of Labor on behalf of Bussanich v. Centralia Mining Co., 22
FMSHRC 153, 164 (Feb. 2000) (Marks and Beatty, dissenting).@ 34 FMSHRC 1875, 1877-1878
(Aug. 2012).

36 FMSHRC Page 691

Findings and Analysis
At the March 5, 2014 hearing, the Complainant, David S. Wood was the sole witness. For
the limited purpose of the temporary reinstatement proceeding,1 the Court found Mr. Wood to be a
credible witness. He testified that on October 14, 2013 he made a safety complaint to supervisor
Darren Darnell, declining to ride with the supervisor on a mine golf cart, because Mr. Darnell was
extremely angry with him over an apparent misunderstanding concerning the means by which he
was to be transported to the Number 1 Unit that day. In the supervisor=s agitated state, Mr. Wood
testified that he did not feel safe riding in the cart with him. According to Mr. Wood, at one point
during the angry outburst from Darnell, the supervisor threatened that he would have Wood fired if
he did not get on the golf cart. The Complainant=s work refusal, refusing to ride in the golf cart
with the irate supervisor at the wheel, is the alleged protected activity invoked. Once Mr. Darnell
calmed down, Mr. Wood then did ride with him. Tr. 15-25. Following the incident, Mr. Wood
continued to work at the mine for the ensuing two weeks, through October 25, 2013. Thereafter,
on October 28th, Mr. Wood had a family medical issue, involving an illness that was affecting his
entire family. He called in to work, per the mine=s policy for illness, one hour before his shift,
leaving a voice mail message at the number. In connection with a visit to his doctor on October
31st, which was his second doctor=s visit in connection with his own illness, Mr. Wood was advised
that, if he felt sufficiently improved, he could return to work on November 2nd. Tr. 26-30, and GX
2.
When Mr. Wood appeared for work on November 1st for his shift which was to begin on
November 2nd, he was advised by the third shift foreman that he could not work and that he would
have to speak with the mine=s human resources director. Tr. 28, 32. He then called the mine and
was advised that he was to come to the mine on November 5th for a meeting. He did so and was
advised at that time that he was being Asuspended with intent to discharge.@ Tr. 33. He was then
told to appear for a second meeting at 9:00 a.m. on November 6th. He did so appear for the
second meeting and saw supervisor Darnell that morning. Mr. Wood stated that Darnell Athrew a
slur@ at him and asked if he was looking for a job. Tr. 35. The meeting then followed and the
Complainant was told that he violated the mine=s leave policy for illnesses and that he was being
terminated for that failure. Tr. 40-41. Following his termination, Mr. Wood filed for
unemployment compensation and was approved for those benefits. About a week after his
termination, Mr. Wood learned that another employee had a similar issue related to the mine=s
illness policy and what constitutes a satisfactory excuse for such absences. The difference was
that the other employee was not terminated. This prompted Mr. Woods to call MSHA, around
December 21st or the 22nd, and then he presented his account of the events leading up to his
termination, including the altercation with Darnell and the illness issue.

1

Conflicts in testimony, in this case, raised only putatively in the context of
cross-examination of the Complainant as the sole witness at the hearing, are not to be resolved in
a temporary reinstatement proceeding. To do otherwise would transform the proceeding into a
hearing on the merits. Sec=y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC
717, 719 (July 1999).

36 FMSHRC Page 692

Following Mr. Wood=s testimony on direct, the Respondent was afforded a full opportunity
to conduct a cross-examination of his account of the events. Tr. 60-112. The Court then heard and
considered the parties= closing statements.2 Tr. 114-119. Following that, the Court announced
that it had made its determination and offered that it was willing to state it on the record or, if the
parties preferred, it would defer its determination announcement until the issuance of its written
decision. The parties opted for the Court to disclose its decision at the proceeding. This decision
memorializes that determination.
Remembering that the temporary reinstatement proceeding is a very limited inquiry, the
Court stated its finding that it was not a frivolously brought complaint. In the context of hearing
testimony only from Mr. Wood, the Court finds that he was a forthright and credible witness in
relating his telling of the events in issue. Having made that baseline determination, it is noted that
no conflicting testimony was presented and that, in any event, credibility determinations, had there
been conflicting accounts, would not be appropriate to resolve at this stage. The facts in the
record support the conclusion that Mr. Wood engaged in protected activity when he made his work
refusal. This is especially true, when considered in the full context of the testimony, regarding
issues about the safety of the golf carts and how they were driven, together with the testimony
about the very agitated state of Mr. Darnell.
The Court took note that, in essence, the Respondent was contending that the
Complainant=s discharge was for failure to follow its sick leave policy and, implicitly that Mr.
Cook=s safety complaint was invented after the fact. The Respondent has also noted that the
Complainant continued to work for two weeks after the incident with Mr. Darnell. The former
contention is not ripe for a determination in the context of a temporary reinstatement. As to the
latter argument, in addition to the impropriety of finding whether that was the genuine basis for his
dismissal or not, it is well-recognized that although an intervening period of time could form the
basis to support a non-discriminatory ground for a dismissal, such a brief interval is sufficient to
support a finding of an association between the protected activity and the adverse action. Put
more succinctly, two weeks is an insufficient interval of time to separate the protected activity
from the adverse action. See, Sec. of Labor on behalf of Williamson v. CAM Mining, LLC, 31
FMSHRC 1085, 1090 (Oct. 2009) and Sec. of Labor on behalf of Norman Deck v. FTS Int=l
Proppants, LLC, 2012 WL 4753952 (Sept. 2012).

2

The Respondent cited the decision of a fellow administrative law judge for its persuasive
value in the matter at hand, while acknowledging that it has no precedential effect. However,
upon inquiry by the Court, Respondent could not state whether the cited decision, Brannon v.
Panther Mining, 31 FMSHRC 1533 (Nov. 2009) (ALJ), was a temporary reinstatement
proceeding or a full discrimination proceeding on the merits. The Court, in preparing this
decision, found that it was not a temporary reinstatement matter, thus negating even the persuasive
impact of it.

36 FMSHRC Page 693

ORDER
Based on the foregoing, the Court having found that the Complainant=s application for
temporary reinstatement was not frivolously brought, the Court ORDERS that Mr. David S.
Wood be reinstated to his former position at the same rate of pay and with all other benefits that he
enjoyed prior to his discharge, as of the date of this decision.

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

Distribution:
Jennifer Booth Thomas, Esq., and Malia Lawson, Esq., Office of the Solicitor, U.S. Department of
Labor, 618 Church Street, Suite 230, Nashville, TN 37219-2456
Jeffrey K. Phillips, Esq., and Candace B. Smith, Esq., Steptoe & Johnson, PLLC, One Paragon
Centre, 2525 Harrodsburg Road, Suite 300, Lexington, Kentucky 40504
David S. Wood, 558 S. Seminary St., Madisonville, KY 42431

36 FMSHRC Page 694

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

March 10, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
POWER FUELS, LLC,
Respondent
POWER FUELS, LLC,
Contestant

v.

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

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CIVIL PENALTY PROCEEDING
Docket No. VA 2013-403
A.C. No. 44-07303-323400

Mine: Power Fuel Blending Terminal

CONTEST PROCEEDINGS:
Docket No.: VA 2013-312-R
Citation No.: 8204724; 4/9/13
Docket No.: VA 2013-313-R
Citation No.: 8204725; 4/9/13
Docket No.: VA 2013-353-R
Citation No.: 8274726; 4/9/13
Mine: Power Fuel Blending Terminal

DECISION
Appearances: Anthony D. Jones, Esq., U.S. Department of Labor, Office of the Solicitor,
Arlington, Virginia, for the Secretary
Wade W. Massie, Esq., PENN, STUART & ESKRIDGE, Abingdon, Virginia, for
the Respondent
Before: Judge Koutras

36 FMSHRC Page 695

STATEMENT OF THE CASE
This civil penalty proceeding pursuant to the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 802, et Seq. (2000), hereinafter the “Mine Act” concerns three Section 104(a)
significant and substantial (S & S) citations served on the respondent on April 9, 2013, for
alleged violations of the cited safety standards found at 30 C.F.R. 77.410(c), and 77.1605(b).
The Secretary petitions the Court for a civil penalty assessment of $300, for the alleged
violations.
In addition to the civil penalty issues presented in this case, the respondent challenges
and contests the Secretary’s asserted jurisdiction based on its contention that the respondent is
not a mine operator, and that its facility is not engaged in any coal mine working activities that
fall within the scope and intent of the Mine Act.
Pre-trial Ruling
This case was initially designated as a Simplified Proceeding pursuant to the
Commission’s rules at 29 C.F.R. 2700.100, et. seq. Subsequently, the Secretary filed a motion to
discontinue the “simplified” designation and to continue the matter under conventional rules. In
support of the motion, the Secretary cited the jurisdictional issues raised by the respondent that
involve complex issues of law and fact. The motion was granted pursuant to Rule 2700.104,
without objection by the Court during a pre-trial telephone conference with the parties (Tr. 5-6)
As a result of the Court’s ruling as discussed during the aforementioned conference, the
respondent file a supplemental disclosure statement regarding the nature of its blending
activities, and the Secretary filed a pre-hearing statement with respect to the issues in this matter
including arguments in support of Secretarial (MSHA) jurisdiction. These filings and exchanges
are part of the record.
Stipulations
(1) The parties agreed to the admission into evidence of copies of the three contested
citations, except as to jurisdiction (Ex. G-1, G-2, G-3; ALJ-1).
(2) The parties agreed that the proposed civil penalty assessment for the citations will not
adversely affect the respondent’s ability to continue in business.The parties agreed
that a terminalling agreement between the respondent and Virginia Electric Power
Company, d/b/a Dominion Power Company, is a true and authentic copy in effect at
the time the citations and may be admitted in evidence (Ex. G-4).
At the conclusion of the hearing, the parties agreed that the respondent would be
classified as a small mine under the regulations and the respondent’s manager confirmed that
twelve employees work at the site (Tr. 139).

36 FMSHRC Page 696

The Alleged Violations
The two Section 104(a) S & S Citation Nos. 8204724 and 8204726, April 9, 2013, citing
C.F.R. 77.1605(b), describe defects in the braking systems on two contractor trucks that haul
coal into the respondent’s facility “under the direction of the mine operator” (Ex. G-1, G-3). The
inspector determined the negligence level as “low” for both citations and the gravity level as
“reasonably likely” and “permanently disabling” injuries.
The braking defects described for Citation No. 8204724, concern a steering axle brake
out of adjustment on the truck tractor, and an inoperative rear axle brakes on a trailer being
pulled by the tractor, with no braking force supplied by the brake pushrods that could not move.
The braking defects described for Citation No. 8204726, in part state that the left truck steering
axle brake was out of adjustment with a continuous air leak through a defective air brake value
above the center trailer axle being pulled by the truck.
Citation No. 8204725, April 9. 2013. Citing 30 C.F.R. 77.410(c), states that the backup
alarm provided on the cited contractor truck was not being maintained in a functional condition
in that when the driver placed the vehicle in reverse, the backup alarm failed to function due to a
broken wire. The truck is used to haul coal into the facility “under the direction of mine
operator” (Ex. G-2). The inspector determined the negligence as “low”, and the gravity level as
“reasonably likely” and “permanently disabling” injuries.
Mandatory safety standard 30 C.F.R. 771605(b), requires mobile haulage equipment to
be equipped with adequate brakes. Section 77.410(c) requires mobile equipment such as
“tractors” and “trucks” to be equipped with a warning device that gives an audible alarm when
put in reverse and be maintained in functional condition.
The Secretary’s Testimony
MSHA Inspector Thomas R. Bower testified that he has served in that capacity since
January 7, 2007, and he described his education, including a bachelor’s degree from the
University of Virginia at Wise and his prior mining experience from 2001 through 2006 (Tr. 2021). He confirmed that his initial visit to the respondent’s facility was December 12, 2012, and
that he conducted regular mine safety and health inspections over a period of 12 different days
and was familiar with the work that is done there (Tr. 22). He observed contractor coal trucks,
trailers, and tractors hauling coal, refuse materials, gob coal, and “midds”, a coal byproduct from
a preparation plant, coming into the site. The materials were weighed and sampled and then
taken to designated stockpile areas. The truck drivers were told where to dump their loads by
the loader operators and the foreman of the site (Tr. 22-23).
He further explained that the coal was stored, blended, and loaded as needed for
Dominion’s power plant, then taken back out, weighed again, sampled again, and then shipped to
the power plant (Tr. 23). He stated that front-end loaders were used to blend the coal from one
stockpile to another that were marked for each type of analysis “so they’ll know how to blend
it.” He confirmed that between the time the coal arrives at the site and the time it leaves, it is

36 FMSHRC Page 697

stored and blended in preparation for shipment to the power plant (Tr. 24). He confirmed that he
began his second inspection at the site on April 1, 2013, and clarified that he was not at the site
for a total of five months, and that his inspections last on and off approximately two to three
weeks at a time and that two inspections were performed during two six-month intervals, and
that he was at the site over a period of several month several times (Tr. 25).
Mr. Bower identified Exhibit G-1 as Citation No. 8204724, citing a violation of 30
C.F.R. 77.1605(b), for braking defects on a contractor’s tractor trailer coal truck. He stated that
there were numerous braking defects as stated in the condition or practice noted in item #8 of the
citation, on both the tractor and the trailer that he considers as one unit, and he summarized the
condition as “faulty brakes” (Tr. 26-27). He confirmed that he discussed the citation and his
reasons for issuing it with the site foreman, Mike Hendrickson, and informed him that the truck
was traveling the same roadways that mine personnel used and exposed them to the hazards
while the truck was operated on the property (Tr. 27). The citation reflects that the truck was
taken out of service pending repairs.
Mr. Bower stated he based his “S & S” determination on the fact that the cited truck and
tractor unit had a 25 percent loss of braking power that exceed the guidelines fixed by the
Commercial Vehicle Safety Alliance that any braking loss over 20 percent reaches its out-ofservice criteria (Tr. 27-28, 30). He believed that two persons would be likely exposed to a
hazard in the event of any accident, namely the driver and another miner, as well as others who
may be on the roadway (Tr. 28-29).
Mr. Bower stated that he based his “reasonably likely” injury determination on his
accident investigator experience involving truck accidents under similar defective conditions that
resulted in disabling back and traumatic injuries, and broken bones. He agreed these examples
are “worst case scenarios” and that lesser injuries were conceivable (Tr. 30-31). He confirmed
that foreman Henderson was upset about the conditions of the truck brakes and that he called the
trucking company and told them that they had to do better with their equipment (Tr. 31). He
confirmed that he based his low negligence finding on the fact that the foreman may travel with
the trucks at times during his shift but he did not directly oversee the truck maintenance, and that
he also cited the contractor truck operator for the same violation (Tr. 32-33).
Mr. Bower stated that he also issued S & S Citation No. 8204725, a violation of 30
C.F.R. 77.410(c), because the backup alarm provided on a contractor trailer truck failed to
function when the transmission was placed in reverse and the alarm did not sound (Ex. G-2, Tr.
33). He stated he determined an injury was reasonably likely because the truck traveled in
congested areas, it was observed backing up in congested areas, and it had an obstructed rear
view pulling a 34 foot trailer. The truck backs up in congested areas where numerous people and
other pieces of equipment are present.
Mr. Bower determined that any injury would be disabling if anyone was backed over by a
150,000 pound unit, and this included crushing injuries. He believed one person among those
operating a loader or sampling the coal would be affected, and he also concluded it was an S & S
violation because the cited trucker was in congested areas and it was observed backing up in

36 FMSHRC Page 698

those areas (Tr. 34). He based his low negligence on the same reason as the prior cited violation
because the foreman was not responsible for truck maintenance and confirmed that he also cited
the contractor truck operator for the same violation (Tr. 34-35).
Mr. Bower confirmed that he issued Citation No. 8204726 citing a violation of 30 C.F.R.
77.1605(b), because the same truck previously cited for a defective backup alarm had a brake out
of adjustment on the tractor and a continuous air leak and defective air valve on the trailer being
pulled as a unit (Ex. G-3; Tr. 38-39). He explained that the loss of air pressure would result in a
loss of braking force to stop the unit because the brakes would not work as they are designed (Tr.
39).
Mr. Bower stated that he based his reasonably likely injury determination on the fact that
a combination of a brake out of adjustment and a continued air leak makes it reasonably likely
that a brake failure would occur and cause a wreck. He explained that the truck hauls heavy
loads over inclined roads, traveling with other vehicles, and that any loss of brakes could result
in a truck runaway over the top of other vehicles resulting in crushing injuries. Under these
circumstances, he concluded that the violation was S & S and two persons, the truck driver and
any other vehicle driver would be affected (Tr. 39-40). He confirmed that his low negligence
determination was based on the same reason for all three citations, namely, the fact that the
foreman was not directly responsible for any truck maintenance, but did travel sometime during
the shift in the same area traveled by the trucks (Tr. 41).
On Cross-examination, Mr. Bower stated that his inspections were regular inspections,
and that even though he is a surface inspector and accident investigator, he was not investigating
any accidents when he issued all of the citations. He made no decisions whether the
respondent’s site was a mine within the meaning of the Mine Act and was simply following his
instructions to cite any violations that he found (Tr. 44-45). He confirmed that when he issued
the citations, he was not aware of the agreement between the respondent and Dominion, and did
not interview anyone at Dominion about the respondent’s job performance or operations. He
explained that he spoke with the respondent’s foreman, Mike Hendrickson, who was at the site
on a daily basis, and Mr. Walter B. Crickmer, who has later identified as the manager of Power
Fuels, LLC, the respondent (Tr. 45, 79).
Mr. Bower stated that the contractor trucks that he cited were inbound trucks that were
bringing solid fuel from any producing facility to the respondent’s site. He confirmed that a
defective truck entering the site may not necessary, in and of itself, constitute a violation.
However, pursuant to MSHA’s policy, he is required to make a determination whether or not the
respondent’s personnel are exposed to any hazard, and if not, the violation would be attributable
to the contractor if it did not involve the respondent’s employees (Tr. 46-47).
Mr. Bower confirmed that he issued the violations to the respondent because trucks
entering its site with defective brakes and a backup alarm potentially involved the respondent’s
employees. He did not know whether the trucks were contractors for the respondent or
contractors for the producing mine entities. He further stated that while he was not aware who

36 FMSHRC Page 699

contracted the trucks, he was obligated to inspect them during his inspection at the site and that
the question of who contracted them was not relevant (Tr. 48-49).
Mr. Bower did not know who owned the materials hauled into the site by the trucks, and
did not believe this was relevant. He estimated that 30 – 40 trucks enter the site daily and that
during one of the 12 days of his inspections, he may have randomly selected 10 to 12 trucks to
inspect. He does not inspect every truck that comes onto the site and has inspected trucks that
did not have any violations. As far as he knew, all of the cited trucks arrived safely while
traveling inbound to the site (Tr. 50-51).
Mr. Bower confirmed that his statement in the citations that the trucks are “under the
direction of the mine operator”, referred to the respondent’s foreman, Mr. Hendrickson, and
because the trucks were on the site (Tr. 51). He stated that he has also observed some wood
chips biomass product at the site and that it is handled by the same employees with the same
equipment used for handling the solid fuel (Tr. 52-53). In reply to further questions, Mr. Bower
stated that the material blending that he observed consisted of “coal, midds, gob, the refuse
material blended together”, coal and coal byproducts. He observed wood chips that were stored
and never witnessed it being blended with those products (Tr. 53-54). He explained that the coal
blending was accomplished by using bulldozers to stockpile the materials and front-end loaders
moving it from one stockpile to another (Tr. 55).
Supervisory Special Investigator, Robert D. Clay testified that he has been employed
with MSHA for 22 years and is responsible for violations of section 110 of the Act, and other
duties as assigned by District 5, in Norton, Virginia. He detailed his prior 16 years of mining
experience in the private sector, including mine foreman and equipment operator positions in
surface and underground mines. He also performed duties with MSHA as an inspector and field
office supervisor, and was familiar with the respondent’s facility (Tr. 57-59).
Mr. Clay stated that he first became familiar with the respondent’s site after an inspector
informed the assistant district manager that he observed coal trucks coming off the state road that
were not going directly to Dominion’s power plant and were turning off somewhere else. He
was asked to investigate the respondent’s operation because there was no known preparation
plant at that location. He went to the location on May 22, 2012, and from his vantage point off
the property on a country road he observed coal trucks going on the property. He could only
observed what he believed was a small sampling unit that appeared to be sampling whatever
went through the gate, and a small scale (Tr. 59-60).
Mr. Clay stated that he was approached by the respondent’s foreman, Bobby Ketron, who
invited him on the property and took him to the mine office consisting of a small trailer or
building. Mr. Kentron then took him to a “yard” area that he called a “blending yard” where Mr.
Clay observed signs posted indicating “There was a yard there, a blending facility, signs coming
onto the property”. He also observed end loaders, trucks coming on the property, a coal
sampling unit, scales, and a water tank on an elevated roadway (Tr. 60-61). Mr. Kentron told
him that coal trucks would deliver coal to the yard, dump it and that end loaders would blend the

36 FMSHRC Page 700

coal together for a certain specification. It would then be stored and eventually transported to
Dominion’s power plant directly across the small county road (Tr. 61).
Mr. Clay identified Exhibits G-6 and G-7 as photographs of two signs stating “Virginia
City Fuel Blending Terminal, ¼ mile on right”, and “Blend Yard Area A”, and assumed they
were created by the respondent. It was his understanding that the respondent referred to the
facility as a blending terminal (Ex. G-6). He stated that what was stored in Area A appeared to
be a pile of coal and the sign on the property pointed to the “blend yard storage Area A” (Ex. G7). He explained that during his visit to the facility he observed several trucks stopping at a
sampling area and a sample being removed from the coal truck trailers that drive across a set of
scales. The tractor and trailer are then driven to yard storage A where the coal is dumped and
pushed together and blended with the front end loaders. The blended coal is placed back in the
truck with the same loaders and travel across a set of scales again and travel off the property that
he assumes was taken across the road to Dominion’s power plant (Tr. 65-66).
On cross-examination, Mr. Clay stated that he could observe portions of the respondent’s
property while parked by the road, and more of it after he was invited in by Mr. Ketron. He
stated that the Dominion power plant was adjacent to the respondent’s site across the road, and
the trucks he observed were turning onto the respondent’s site. He confirmed that he did not
conduct any inspection on Dominion’s property (Tr. 67-71).
Mr. Clay stated that he was not aware of any other power plants in MSHA’s District 5,
and that he was only requested to inspect the Dominion location. He speculated that in the event
he observed the trucks turning into that plant, he probably would have inspected that area if
requested to do so by his supervisor (Tr. 73). He confirmed that he was not aware of any
discussions within his district concerning any “debate” about MSHA’s jurisdiction over the
respondent’s site, or any other sites (Tr. 74-75). He confirmed that his inspection did not include
any interviews with anyone on Dominion’s property, or the producers of the materials that were
trucked into the respondent’s site because he did not know who they were. He confirmed that he
did not observe the handling of any biomass at that site because he was not sure what it was (Tr.
76).
Walter B. Crickmer, the respondent’s co-owner and site manager, stated that the site is
located on 106 acres across the road from the Virginia City Hybrid Energy Center (VCHEC),
owned and operated by the Virginia Electric and Power Company that is commonly known as
Dominion Power, of simply “Dominion” (Tr. 79-81). He identified Exhibit R-1 as an aerial
photograph of the power plant, as well as the respondent’s site labeled “Power Fuels LLC Fuel
Handling Facility”, and he was unaware of any citations issued on the plant property (Tr. 82-89).
Mr. Crickmer stated that he has a degree in Geology and is a geologist with previous coal
mine experience that began in 1970, and served as president of the Clinchfield Coal Company
that operated several mines and preparation plants. He also worked for the Pittston Coal
Company drilling gas wells and was engaged in other enterprises processing wood chips and
rebuilding mine equipment (Tr. 120, 122). For the past ten years he and several partners have
owned and operated a business called Gobco that reclaims gob piles, and for the first eight years

36 FMSHRC Page 701

it supplied gob coal products to several companies such as Alpha, Taco, United, and Warscho.
During that time, the company won many state reclamation awards and a Federal Department of
the Interior award for its tree and “green history” (Tr. 121-122).
Mr. Crickmer described the Dominion plant as a 600 megawatt facility placed in
operation two years earlier at the same time the respondent’s site was placed in operation. He
stated the plant was designed differently from most coal-fired power plants run with high BTU
coal content and relies on a very critical BTU low, medium 7500 BTU, or as low as 6500-8000
product that changes daily for the size of the coal product that is going by conveyor belt into the
furnaces that produce heat for its generation station. In order to maintain quality fuel, it is
critical to maintain the low BTU coal content that supplies the furnaces (Tr. 81-82).
Mr. Crickmer stated that the plant burns 10,000 tons of fuel material a day. An average
8,000 tons is supplied by the respondent’s facility that transports it by trucks to the site, and
2,000 tons is trucked directly to the plant from other locations (Tr. 89). Mr. Crickmer described
the fixtures and facilities on the respondent’s property as a terminal office, a set of scales, an
auger sampler owned by a contractor. The respondent owns the office and scales, as well as a
small block building for storing grease, lubricants and work parts, and a pump house for a water
tank used for road dust control. He further confirmed respondent’s ownership of four storage
yards, a sediment pond, and a $40,000 bath house facility required by MSHA (Tr. 90-91). He
described the equipment as four rubber-tired end loaders equipped with computerized bucket
scales, a dozer, a water truck, street sweeper, a road maintenance truck, a mobile stacking
conveyor, and a pickup truck (Tr. 92).
Mr. Crickmer stated that the respondent handles different kinds of fuels purchased by
Dominion, including wash coal from preparation plants, run-of-mine-coal, coal refuse, and gob,
biomass wood products. Also included is wood products and biomass consisting of trees,
“week” and brush that is ground to a certain specification and blended in with solid fuel at
Dominion’s furnace. He stated “it’s just wood that’s been ground up, which is critical and it has
to be sized properly to work in the plant” (Tr. 93).
Mr. Crickmer described the Dominion Power Plant as “a very special” operation
designed to burn coal, biomass, blended in with limestone for emission control”. He explained
how the materials are processed and burned with the special specified fuel because all of the
materials have to meet the proper specifications to react properly in the furnace burn chamber
that may not otherwise be used at other power plants, and this includes coal refuse, gob, and
wood (Tr. 94-95). He stated that the respondent currently receives coal or gob from
approximately 15 to 16 Kentucky and Virginia producers. He confirmed that the respondent
works for Dominion Power under the stipulated terminalling agreement (Tr. 96-98; Ex. G-4).
Mr. Crickmer stated that the respondent does not, and never has, owned any of the coal
related materials delivered by contractor trucks to its site. Pursuant to the agreement with
Dominion Power, the respondent is paid so much a ton for the materials as weighed at the scales.
Further, all of the respondent’s operational costs, including the wages of the foreman and hourly
employees, except for the manager, are fully reimbursed by Dominion to the respondent. All

36 FMSHRC Page 702

fuel materials delivered to the site are paid for by Dominion directly to the producers (Tr. 100101).
Mr. Crickmer explained that on any given day, the fuel materials ordered by Dominion
Power to be trucked to the respondent’s site are weighed and recorded by the computerized
scales and sampled by a third party contracted by the respondent, and then trucked to any of four
storage yard areas (A through D), where it is dumped, segregated, and stored into one particular
pile for particular producers. The fuel delivered for that day is kept segregated for that day
because it has a certain quality. This procedure is followed for all 16 producers who delivered
the fuel materials that day. Dominion Power and the respondent would receive computerized
reports reflecting the exact fuel quality for the fuel delivered that day (Tr. 102-103; Ex. R-3).
Mr. Crickmer explained the fuel blending process that takes place as follows at (Tr. 103):
So we keep that fuel segregated for that one particular day because it has a certain
quality. And we do this for all 16 producers, whoever we have coming that day. And
then we get all the qualities the next day. And then Dominion directs us daily to take this
quality coal, so much of this material and so much of that material and so much of this
material and blend it together by one bucket of this, two buckets of that. Literally is says
that. You have the sheets there that come from Dominion Power that says that into a
pile.
In the event the blending samples reflect a need to improve the quality of the material, it
will be blended as described by Mr. Crickmer at (Tr. 104):
So we will re-blend the entire pile again based upon their direction, add so much more of
this pile to it, be it a higher BTU or a lower BTU, because that is so critical for the firing
in the plant, this blended fuel spec, that it has to be right on the mark. So Dominion
makes that call. And sometime we’ll reblend a pile two or three times to get it exactly
what they want before they take it across the street.
Mr. Crickmer stated after the fuel materials are blended at the desired quality range, the
respondent uses two or three contractor truckers who are allowed on Dominion Power’s property
to deliver the desired daily tonnage ranging from 8,000 to 15,000 tons across the street to the
plant. He stated that on any normal operating day the respondent will handle 300 to 500 tractor
trailers coming in and out of its site and 150 to 200 truckloads a day will go to the plant (Tr. 104105).
Mr. Crickmer identified Exhibit R-2 as a survey map of the respondent’s property
showing the locations of the four fuel material storage areas A through D, the truck scales, and
the auger samples (Tr. 105-106). He further identified Exhibit R-3, as a typical example of a
blending instruction sheet, provided to the respondent from Dominion every day, and sometimes
bi-daily, identifying a particular storage pile and instructions to “Mix this blend, and it tells you
exactly, and the moisture” (Tr. 107-108). Further examples are stated as follows at (Tr. 108):

36 FMSHRC Page 703

THE WITNESS: No, that’s okay. This right here says “Please blend 908A –which is our
product – “5 buckets of Omega with 4 buckets of Gobco/ETI for pile Aa.”
BTU should be 7950, 39 percent ash, 5.9 percent moisture. “I have attached a
spreadsheet with calculations.” In yard B –Mr. Crickmer cited an example of blending calculations made by the respondent
with respect to the fuel purchased by Dominion from all of its producers as
follows: (Ex. 3, Tr. 109).
THE WITNESS: This is how many buckets. There’s 207.98 buckets in that pile. This is
the percent. And in the blended pile they want two buckets of that. They want three
buckets of Pevler. They want three buckets of IBCS and one bucket of South East. So it
actually gives us a 6.5 moisture, a 39 ash, a .9 sulfur, and 7600 BTU. Now, these are all
critical things for that power plant’s furnace. That BTU has to be right on the money.
That sulfur has to be within the limits required by the law. And, of course, ash is, you
know, a byproduct of the BTU. (Ex. R-3; Tr. 109).
Mr. Crickmer further identified information received daily by the respondent from all of
the coal fuel producers with respect to the different quality specifications utilized during its
blending process. He stated the information is tracked by Dominion’s computers “so that all
these products are properly blended together” (Tr. 112). He explained that Dominion’s plant is
not a standard coal-fired plant that utilizes fuel that is blown into a furnace. He described
Dominion’s plant as “a fluidized bed plant” that utilizes other materials such as limestone for its
furnace reaction chambers to insure the required critical combustion and the removal of
emissions (Tr. 110-111). He stated that OSHA, EPA, and “DEQ” have jurisdiction over the
plant’s operations (Tr. 111).
Mr. Crickmer believed that the coal fuel delivered to the respondent’s site has been
crushed and sized, and he assumed that the producers of the coal have done this prior to its sale
to Dominion in order to meet its specifications. No coal crushing, sizing, or washing is done at
the respondent’s site. He stated that “all we do is take different fuels purchased by Dominion,
which they own, and we blend it to whatever specifications they want for the next day to burn at
the plant on two days”. He confirmed that the coal meets Dominion’s preparatory size
specifications, and if not, Dominion would reject the coal until it was properly sized (Tr. 114).
He explained that the Dominion plant is unique in that all fuel material is trucked in daily, and
when its inventory is full, it only has a nine to ten day supply, whereas most coal-fired plants
have 60 to 90 day inventory. He stated that the respondent provides a service to Dominion by
storing an additional eight days of purchased fuel on its site (Tr. 115).
Mr. Crickmer stated that the respondent has never been in the coal business, and that its
site was designed to perform the daily work that he has described. He confirmed that he was
familiar with the work performed at coal preparation plants and was responsible for such a plant
when he worked at Clinchfield Coal. He explained that a preparation plant washes, screens, and
sizes coal pursuant to the specified specifications from the customers it services (Tr. 122-123).

36 FMSHRC Page 704

Mr. Crickmer stated that the respondent does nothing to improve the quality of any fuel
product, and it never screens, washes, or sizes it “other than take exactly what’s been brought in
there by Dominion and put it in a blend to fuel their furnace” (Tr. 123). He explained that the
coal was crushed and screened by the coal producers to meet Dominion’s BTU, sulfur, or
moisture specifications. He stated that the respondent furnishes approximately 80% of the fuel it
handles and delivers directly to the Dominion plant, and that 20% of the material does not come
to the respondent’s site and is delivered directly by truckers ordered by Dominion (Tr. 123-124).
Mr. Crickmer stated that the “fine tuning” of the “spec fuel” that arrives at the
respondent’s site is not done by any of the coal producers, and the respondent receives a variety
of coal blends purchased by Dominion that is to be blended before it can be delivered to its plant.
He explained that coal blending, sampling, and analysis takes place at the respondent’s site daily,
and changes daily “six days a week all year long” (Tr. 124).
Mr. Crickmer stated that in the event the respondent did not do the blending work,
Dominion would have to it because the plant requires the desired fuel specification (Tr. 125).
He explained that when he established the respondent’s site he consulted with the State
Department of Mining Minerals and Energy and informed its director that the respondent “would
work for Dominion to handle trucks, store their fuel, re-blend it to spec and haul it across the
street”. He stated that he was informed that he was not a coal mine, did not need a mine license,
was not a wash plant, and was not subject to the State’s jurisdiction, and was referred to OSHA
signs, brochures, and forms for visitors to sign, and operated that way until MSHA appeared (Tr.
125-126).
On cross-examination , Mr. Crickmer confirmed that the respondent blends coal on
behalf of Dominion, stores it at the respondent’s facility and loads and delivers it across the
street to the Dominion plant as directed. He confirmed that the stipulated Terminalling
Agreement defines its work responsibilities on behalf of Dominion with respect to the blending
and delivery of the coal to the plant. He stated that the respondent is a custom blending facility
for Dominion and that the work it performs is done to meet Dominion’s requirements and
specifications (Tr. 127-128). He characterized this work and the term “custom” as follows:
A. It makes a buyer’s spec fuel that really changes daily or weekly. And they
change it based upon the heat rate of the furnace. It’s a custom fuel. And we do that
work for Dominion. We make that spec fuel for them with fuels that they own. They
buy fuels from many people and we take those fuels and we make that spec fuel. (Tr.
128).
Mr. Crickmer further confirmed that “solid fuel” is defined by the agreement as coal,
coal refuse, and coal midds or gob (Tr. 129). He stated that the biomass handled by the
respondent is covered by a separate agreement and it is the only product that it has ever
purchased and owned for that business. He confirmed that it provides biomass for Dominion and
ground end sized 1,000 truckloads of wood materials in 2012, to Dominion outside of the
agreement (Tr. 129-130).

36 FMSHRC Page 705

Mr. Crickmer explained that the respondent is not responsible for any erroneous blend or loss in
a stockpile, and commented “that is all 100 percent Dominion”, and “if they told me to blend it
this way and it came out something they didn’t like, it’s not my responsibility. I only do what
I’m told to do”. He confirmed that Dominion can perform re-blending at its site through its
reclaim systems that senses sulfur, moisture, or ash in both piles (Tr. 137-138).
The Jurisdictional Issues
The Secretary’s Arguments
The Secretary relies on the testimony of MSHA Inspector Thomas C. Bower, who
confirmed his site inspections in December 2012, and April 2013, when he observed the loaded
coal trucks transporting the coal onto the property where it was weighed, sampled, and stored in
designated areas, and blended using front-end loaders that mixed and combined different types
of coal and stored in separate stockpiles to create a custom coal blend.
The Secretary further cites the testimony of MSHA Special Investigator Robert D. Clay,
who initially observed coal trucks entering the site, and his further observations after he was
invited onto to the property by site foreman Bobby Ketron. Mr. Clay observed front-end loaders,
weighing scales, a coal sampling unit, a water tank, and several coal trucks coming onto the
property. He testified that Mr. Kentron informed him that coal trucks delivered coal to the
blending yard where front-end loaders blended the coal together to meet certain specifications.
The blended coal was stored and eventually transported to the Dominion Power Plant across the
street from the respondent’s facility.
The Secretary further relies on the testimony of Walter B. Crickmer, the respondent’s coowner and facility manager who confirmed the Terminalling Agreement between the respondent
and Dominion Power specifying the services provided by the respondent, including the blending
of solid fuel in accordance with the requirements of the customer, and the loading of trucks and
shipment of solid fuel to Dominion’s plant (Tr. 127-128); Exhibit G-4, pg. 4.301(a)(iv)(v)).
The Secretary cites the definition of “solid fuel” in the Agreement as “coal, coal refuse,
coal midds, or gob” and refers to Dominion Power as the “Customer” of Power Fuels, LLC (Ex.
G-4, at 1, 2; Tr. 129). The Secretary cites Mr. Crickmer’s testimony that the respondent receives
daily instructions, sometimes bi-daily, from Dominion Power that directs it on how to create a
custom coal blend that meets Dominion Power’s specifications as noted in Exhibit R3.
The Secretary further cites Mr. Crickmer’s testimony that it was “critical” for the
respondent to make a custom coal blend that meets Dominion’s precise specifications in order
for the power plant furnace to operate correctly and his explanation that “All we do is take
different fuels purchased by Dominion, which they own, and we blend to whatever specifications
they want for the next day burn at the power plant” (Tr. 114). The Secretary refers to the
following testimony and admissions by Mr. Crickmer:

36 FMSHRC Page 706

1.

The respondent “provides a big service” for Dominion because it stores large
quantities of coal, and that since Dominion can only store up to eight days of powerplant-ready coal at its plant, storage at the respondent’s facility reduces Dominion’s
storage needs on its own premises (Tr. 115, 126).

2.

The respondent’s facility has four different storage areas where trucks are routinely
loaded with blended coal and taken to an auger sampler that tests the coal to insure it
meets Dominion’s specifications and transported across the street to the Dominion
Power Plant (Tr. 102-103, 126; Ex. G-7).

3. The respondent “is a custom blending facility” for Dominion Power, blends coal that
it receives from approximately 16 different producing mines, and that the work it
performs is done for the purpose of meeting Dominion’s specifications and
requirements (Tr. 97, 126, 128).
The Secretary asserts that under the plain language of the Mine Act, the respondent’s
blending facility is a “mine” for purposes of Mine Act enforcement jurisdiction. The Secretary
cites Section 4 of the Act that each “coal or other mine” whose products affect commerce shall
be subject to the Act, and that “Coal or other mine” is defined in Section 3(h)(1) of the Mine Act
to include:
(C) lands . . . structures, facilities, equipment, machines, tools, or other property . . . used
in, or to be used in, or resulting from, the work of extracting such minerals from their
natural deposits in non-liquid form . . . 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 (30 U.S.C. 802(h)(i)).
The Secretary cites the definition of “work of preparing the coal” at Section 3(I) of the
Mine Act as:
. . . the breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loading
of bituminous coal, lignite or anthracite, and such other work of preparing coal as is
usually done by the operator of the coal mine (30 U.S.C. 802(i)).
The Secretary asserts that the record in this case makes it abundantly clear that the
respondent is a custom coal preparation facility that is “used in” the “work of preparing coal”,
and that it undisputed that it mixes, blends, loads, weighs, samples, and stores bituminous coal
for the sole purpose of meeting the specifications and requirements of its customer Dominion
Power. The Secretary concludes that these coal preparation activities confer Mine Act
enforcement jurisdiction over the respondent’s blending terminal, and that a plain reading of
Mine Act Section 4 requires the conclusion that the terminal operation is a “custom preparation
facility” within 30 U.S.C. 802(h)(1). In this regard, the Secretary cites Mr. Crickmer’s
admission that the respondent “is a custom blending facility” for its customer Dominion Power
(Tr. 128).

36 FMSHRC Page 707

The Secretary cites the Commission’s decision in Mineral Coal Sales, Inc., 7 FMSHRC
615 (1985), affirming my jurisdictional finding over a commercial loading facility, a railway
siding that the Secretary states performed coal preparation function similar to the work
performed by the respondent in the instant matter, namely the blending of different types of coal
together to meet customer’s specifications and loaded the blended coal for transport activities are
specifically listed in the Mine Act as constituting “the work of preparing the coal”. In that case,
although the Commission stated that merely performing one or more of the statutorily
enumerated activities is not solely determinative of whether the facility is properly classified as a
“mine”, it nonetheless noted that the inquiry must also focus on the nature of the operation
performing the activities and whether the work is “undertaken to make coal suitable for a
particular use or to meet market specifications”.
The Secretary emphasizes that the Commission ultimately concluded that the operations
taking place at Mineral Coal Sales, when viewed as a collective whole, indicated that the facility
was a “mine” because it performed preparation work to make coal suitable for customer
specifications, and rejected Mineral Coal Sales’ contention that its work of merely blending
different types of coal from different stockpiles under the direction and control of another entity
does not constitute coal preparation. The Secretary concludes that the preparation work
performed at the Mineral Coal Sales facility is virtually identical to the blending work performed
by the respondent and falls within MSHA’s jurisdiction.
The Secretary states that assuming arguendo that the court finds that Sections
802(h)(1)(C) and (i) are ambiguous with respect to whether they allow MSHA to assert
enforcement jurisdiction over a custom coal preparation plant that engages in further preparation
of previously processed coal to meet the specifications of the coal’s ultimate consumer, the
Secretary’s reasonable interpretation of the Act is entitled to deference. Citing Secretary v.
National Cement Co., 573 F.3d 788 (D.C. Cir. 2009I) (deferring to MSHA’s finding of Mine Act
jurisdiction over a road leading up to a cement plant), and Secretary v. Carolina Stalite Co., 734
F.2d 1547 (D.C. Cir. 1984) (deferring to MSHA’s jurisdictional determination that a slate gravel
processing facility that did not extract slate but processed it for commercial purposes was a
“mine” within the meaning of the Mine Act.
The Secretary argues that his interpretation that the work performed at the respondent’s
blending facility constitutes the “work of preparing the coal” is reasonable and entitled to
deference, citing the cases of Mineral Sales, Inc. and Kinder Morgan Operating, supra with
“strikingly similar facts to the case as bar” with respect to the undisputed statutorily enumerated
coal preparation activities performed by the respondent that include the “mixing, storing, and
loading of bituminous coal” functions specified in 30 U.S.C. 802(i).
The Secretary maintains that his interpretation of 30 U.S.C. 802(h)(1)(C) and 802(i) is
reasonable and that by enacting the Mine Act Congress sought to prevent “unsafe and
unhealthful conditions and practices in . . . coal or other mines,” 30 U.S.C. Section 801(b), and
that it furthers the safety and health goals of the Act to cover, to the maximum extent consistent
with the statutory terms, workers subject to the conditions, practices and hazards associated with
coal preparation, and that deference to the Secretary’s interpretation is additionally warranted

36 FMSHRC Page 708

because 30 U.S.C. 802(h)(1)(C) “expressly authorize(es) the Secretary to define what
constitutes a “mine.” Otis Elevator Co. v. Secretary, 921 F.2d 1285, 1288 n.1 (D.C. Cir. 1990).
The Secretary states that the respondent introduced no facts or evidence to support its
contention that MSHA has no jurisdiction over its blending facility and rejects its principal
defense that its mixing, storing, and loading work is not the type of coal preparation work that
“is usually done by the operator of the coal mine”, and as such should be treated like the ultimate
consumer of the coal instead of a mine operator. The Secretary responds to the respondent’s
contention that if it did not perform the custom blending work for Dominion, Dominion would
have to perform these coal preparation activities for itself , and takes the position that the
respondent seeks to be treated as the ultimate consumer of the coal, instead of the contractor it
actually is that prepares the coal to meet the specifications of the ultimate consumer, and that its
argument has no basis in fact or logic and should be rejected.
In response to the respondent’s suggestion that the Secretary’s jurisdictional
interpretation would expose any place that mixes, stores, or loads coal to MSHA’s enforcement
scrutiny, the Secretary states that simply storing or loading coal would not subject the coal enduser to MSHA’s jurisdiction. The Secretary concludes that his asserted enforcement jurisdiction
is consistent with the Commissions analysis in Elam, supra, and the reasoning stated in Mineral
Coal Sales, supra, and Kinder Morgan Operating, supra.
The Secretary further cites the Third Circuit Federal Court of Appeals decision in RNS
Service, Inc. v. FMSHRC, 115 F.3d 182 (1997), concerning a site that processed coal refuse that
was delivered to a co-generation facility generating electricity and steam where it was further
prepared in a useable form by its ultimate consumer. The Court affirmed the Commission’s
functional analysis holding that the loading and transportation of the coal that occurred at the site
were sufficient to render the site a mine, and rejected the assertion by RNS Services that the
Commission made a per se ruling that simply loading and transporting the coal rendered the site
a “mine”.
With respect to the facts supporting the alleged violations, the Secretary relies on the
testimony of Inspector Bower as previously noted, including the joint stipulated evidentiary
admission of the citations were received for the record, without objection, except as to
jurisdiction. Further, the Secretary takes the position that if MSHA’s jurisdictional claims are
affirmed, the citations and proposed civil penalty assessments should also be affirmed..
The Respondent’s Arguments:
The respondent argues that the critical question in this case is whether any mixing,
storing, or loading of coal is subject to the jurisdiction of the Act, as contended by the Secretary,
or whether the mixing, storing, and loading must be the type of work usually performed by the
operator of a coal mine. The respondent asserts that if the Secretary is correct that any mixing,
storing, or loading of coal is sufficient to establish MSHA jurisdiction, then any consumer who
mixes, stores, or loads coal is the operator of a coal mine. Conceding the fact that the Mine Act
confers broad jurisdiction on MSHA, the respondent maintains that it does not go that far.

36 FMSHRC Page 709

The respondent argues that the work normally performed by coal consumers is not
subject to the Mine Act, and that in the instant case the respondent is doing blending work for
the consumer of the coal, not for the producers of the coal. The respondent maintains that the
work that it performs is the type of work that is generally performed by a consumer, and the fact
that the consumer has contracted with the respondent to perform this work, instead of doing it
with its own employees, does not change the character of the work or allow MSHA to assert
jurisdiction.
The respondent relies on several Commission and ALJ jurisdictional issue decisions in
support of its case. Addressing the critical issue with respect to the connection that must exist
between the work in question and the usual work of mining, the respondent cites Secretary of
Labor v. Oliver M. Jr., Co., 4 FMSHRC 51 (1982I), a case involving an operator of a
commercial dock on the Ohio River, and affirming an ALJ decision that Elam’s facility was not
a “mine” subject to Mine Act jurisdiction.
The respondent states that although Elam crushed and loaded coal onto barges, the
Commission held that the dock was not a “coal or other mine,” and that just because it handled
coal it did not mean it was engaged in “the work of preparing the coal.” To fall within the
definition, the Commission concluded that the work must involve more than the “breaking
crushing, sizing, cleaning, washing, drying, measuring, storing, (or) loading” of coal. The work
must be the kind of work “usually performed by the mine operator engaged in the extraction of
the coal or by custom preparation facilities . . . “.
With regard to Secretary of Labor v. Mineral Coal Sales, Inc., 7 FMSHRC 615 (1985),
the respondent points out that the Commission addressed a different situation involving a tipple
operator at a siding that stored, mixed, crushed, sized, and loaded coal in order to make it
“suitable for a particular use or to meet market specifications.” The company processed the coal
for brokers, not consumers, and the Commission held that the company’s operations were
subject to the Act.
Citing my decision in Marion Docks, Inc. v. Secretary of Labor, 10 FMSHRC 1598
(1988), a case involving a coal loading tipple facility that loaded and shipped coal by river
barges to several utility customers who purchase the coal from brokers, the respondent points out
that the facility was not the consumer of the coal, and did not work for the consumer of the coal,
and only worked for brokers who sold the coal to utilities.
The respondent cites my decision in Secretary v. Consolidation Coal Company, 35
FMSHRC 439 (2013), involving a coal loading facility that received processed coal from an
adjacent preparation plant. The respondent states that the case involved two facilities, namely
(1) a coal loading facility that was essentially an extension of the preparation plant, and (2) a
barge onto which the coal was loaded. The respondent states that the loading facility where the
work of loading work that included the layering of the coal to meet the mine customer’s
specifications was held to be subject to the Mine Act, “but the barge was not, . . . and simply
transported the loaded coal” (pg. 9, post-hearing brief). The respondent further addresses two
Federal Court of Appeals cases relied on by the Secretary with respect to what constitutes a

36 FMSHRC Page 710

mine. RNS Services, Inc. v. FMSHRC, 115 v. F. 3d 182 (3d Cir. 1997), and Kinder Morgan
Operating, L.P. v. Chao, 78 F. App’x 462 (6th Cir. 2003) (unpublished); (Commission Decision
at 23 FMSHRC 1288, 1294 (2001)).
With respect to RNS Services, Inc., the respondent states that RNS loaded coal refuse at a
refuse site, and that the Court, in a 2-1 decision, the majority applied a functional analysis
focusing on the nature of the work being performed at the site and held that RNS was subject to
the Act. Even so, the respondent argues that the majority disclaimed the view that any loading
of coal was subject to the Act, and that in order to constitute a mine, the coal must be loaded “at
a place regularly used for the purpose, in preparation for further processing, and that the “loading
of the coal is a critical step in the processing of minerals extracted from the earth in preparation
for their receipt by an end-user. . . .” Id. At 185. The respondent notes the dissent argument that
the Commission had applied a per se ruling making any loading of coal subject to the Act. Id. At
192 (Alito, J., dissenting).
With regard to the Kinder Morgan Operating decision, involving a marine loading
facility that received and loaded coal, mostly for the Tennessee Valley Authority (TVA), and
that the TVA purchased the coal from numerous producers, and that Kinder Morgan stored and
blended the coal into different products for different plants. The respondent points out that the
Commission split 2-2 on whether the Mine Act applied to Kinder Morgan’s operation, and
concedes that the 6th Circuit found MSHA jurisdiction and adopted the reasoning of the two
Commissioners who voted to uphold jurisdiction based on their reasoning that Kinder Morgan
was performing work “usually performed by the operator of a coal mine by undertaking the
activities to make the coal suitable for a particular use or to meet market specifications.” 23
FMSHRC 1288, 1294 (2001).
The respondent cites several additional Court opinions that it believes make it clear that
storing, loading, and mixing coal are themselves insufficient to support jurisdiction, and that
otherwise, anyone who handles coal would be covered by the Act. The respondent concludes
that the storing, loading, and mixing must be part of a mine’s operations. In support of its
argument, the respondent cites Herman v. Associated Elec. Coop. Inc., 172 F. 3d 1078 (8th Cir.
1999), stating “not all businesses that perform tasks listed under the ‘work of preparing coal’ in
Section 802(i) can be considered mines.” Id. At 1082, and that while utilities may be subject to
the Act if they maintain a presence at the mine and assist in mining or loading the coal or if they
engage in coal preparation of the type performed by mine operators, “a utility that receives
processed coal from a mine does not itself become a ‘mine’ by further processing the coal for
combustion.” Id. At 1083. Thus, once a producer delivers processed, marketable coal to a
utility, the jurisdiction of MSHA ends, even though the utility may do further blending of the
product. Id.
The respondent argues that the Fourth Circuit made this same point in United Energy
Services, Inc. v. MSHA, 35 F. 3d 971 (4th Cir. 1994), involving the operator of a power plant that
went onto mine property and loaded coal refuse from a pile and transported it to the plant. Id at
973. Employing a functional analysis, the Fourth Circuit found that the plant operator was
engaged in the work of preparing the coal. Id. At 975. The respondent asserts that the Court was

36 FMSHRC Page 711

careful to rule, however, that the same analysis would not apply once the coal was delivered to
the plant.
The respondent asserts that the following facts are not contradicted:
1. Dominion purchases coal from various producers.
2. The coal is delivered to the Power Fuels site by contract truckers for the producers.
3. Dominion owns all of the coal that is delivered to the site.
4. Power Fuels is a contractor for Dominion under a Terminalling Agreement.
5. Power Fuels weighs, samples and stores the coal for Dominion.
6. Dominion instructs Power Fuels how to blend and deliver the coal.
7. Dominion does so to achieve the desired burn for the fuel going into its plant.
8. Dominion is the sole consumer of the coal at the Power Fuels site.
9. If Power Fuels did not store and blend the coal for Dominion, Dominion would have
to do the work itself or find another contractor to do it.
10. The work performed by Power Fuels is work that is usually performed by utilities or
other consumers of coal. It is not the type of work performed by producers or brokers
of coal.
The respondent concludes that the activities listed in 30 U.S.C. Section 802(i) as being
part of the “work of preparing the coal” are limited by the phrase “as is usually done by the
operator of the coal mine.” If the storing, loading, and mining is the type of work usually
performed by the mine operator, the work is subject to the Act. On the other hand, if the work is
not of that type, but is work of the type usually performed by a utility or other consumer of the
coal, the work is not subject to the Act. In this regard, the respondent asserts that MSHA’s
Special Investigator Robert Clay testified that the activities in question occurred on the property
of Dominion, MSHA would not have considered the to be within its jurisdiction. In other words,
if Dominion had done the work itself, the agency would not have asserted jurisdiction. The
respondent concludes that if the activities are not subject to the Act when performed by
Dominion, then they are not subject to the Act when performed by a contractor for Dominion,
and that any other interpretation would lead to the extreme and unreasonable position that
MSHA has jurisdiction over everyone who receives and handles coal.
Findings and Conclusions
Jurisdiction
The essence and focus of the respondent’s jurisdictional argument is the statutory
language defining a coal mine, and the meaning of the phrases “work of preparing the coal” , and
“such other work of preparing such coal as is usually done by the operator of the coal mine”. At
hearing, the respondent’s counsel argued that any work associated with the blending, mixing,
and storage of coal does not ipso facto constitute “work of preparing the coal”, and does not
necessarily result in MSHA jurisdiction (Tr. 133-134).

36 FMSHRC Page 712

The respondent maintains that “a line must be drawn”, particularly in view of the
statutory language requiring a showing that the kind of work performed is the kind that is usually
done by a coal mine operator (Tr. 133-134). In support of its argument, the respondent relies on
the dissenting judge (now Supreme Court Justice Alioto) in RNS Services, Inc., supra that not
every mining, washing, sizing, or trucking of coal is a coal mine, and that the kind of work must
be the kind done by the coal operator.
The respondent dismisses any suggestion that the work it performs is done for a
customer, or that it was “some kind of a middle man custom blending coal to sell into a market”,
and asserts that it is in fact a contractor for the Dominion Power Plant that is not its customer “in
a sales sense” (Tr. 137). In response to these arguments, the Secretary maintains that the case
law cited and relied on in this case to support MSHA jurisdiction is clear that the line is drawn
where the work of mixing, storage, and loading of coal is done to meet a customer’s
specifications (Tr. 135).
I reject the respondent’s claim that Dominion Power is not its customer. The
terminalling agreement specifically describes Dominion Power as a “customer” numerous times
at pages one through eight (Ex. G-4). Further, the respondent’s site manager Walter Crickmer in
describing the blending of coal at the site pursuant to the agreement stated this is done “in
accordance with the reasonable requirements of the customers” (Tr. 127). He also confirmed
that the site is “a custom blending facility for Dominion Power”, and that all work performed “is
done to meet the requirements and specifications” of Dominion Power (Tr. 128). Accordingly, I
conclude and find that Dominion Power is in fact the respondent’s customer.
The respondent’s assertion that Inspector Clay, at (Tr. 69-72), testified that in the event
the trucks he observed were delivering coal directly to Dominion’s power plant, MSHA would
not have asserted jurisdiction must be considered in context. In fact, Mr. Clay testified that he
had “no idea” because he does not inspect power company property unless MSHA jurisdiction is
factually determined, and that was his understanding that MSHA’s claim of site jurisdiction is
based on the working activities he only observed taking place at the respondent’s property (Tr.
69-70). Further, when asked if he would be present at the hearing in this case if he had observed
the trucks going directly into the plant, inspector Clay stated he probably would be present at
the hearing because MSHA’s assistant district manager, his superior, “asked me to look into it
and I reported to him what I found” (Tr. 73). Further, in response to whether MSHA has
asserted its jurisdiction over other power plants in District 5, he confirmed that the only power
plant he was asked to look at was Dominion’s plant jurisdiction there” (Tr. 73).
The respondent’s conclusion that in my Consolidation Coal case, I found the layer
loading of coal at the loading dock at that facility location that includes a fixed barge constituted
“work in preparing coal” to meet customer specifications is correct. However, the respondent’s
assertion that I found that “a barge on which the coal was loaded” was a “facility” not subject to
MSHA jurisdiction because “it simply transported the coal is incorrect and mis-leading. I made
no finding the barge was a “facility”. The barge in issue was an empty barge on the Ohio River
located away from the loading dock location where no layer loading was taking place.

36 FMSHRC Page 713

I take particular note of the Court majority in RNS Services, Inc. supra, rejecting the
dissenting opinion that the Commission applied a per se ruling in that case. Indeed, the Court
noted that the Commission was cognizant of the fact that coal refuse was loaded at the site in
question for delivery to its power generator facility and correctly applied a “functional analysis”
test in determining that the coal loaded and store at that site was in fact loaded at a place
regularly used for that purpose, and were sufficient to render the sites of these activities a
“mine”.
I conclude and find that the resolution of jurisdiction in this case is properly and
reasonably made pursuant to a “functional analysis” as described in RNS Services, Inc., and
Oliver M. Elam, as well as in Mineral Coal Sales, Inc., Marion Docks, Inc., and Kinder Morgan
Operating Supra, decisions that I find persuasive and controlling precedents in this case.
Although the Court decisions in Herman v. Associated Elec. Coop., Inc. and United
Energy Services, Inc. v. FMSHRC, supra, relied on by the respondent may support its argument
that mixing, storage, and loading of coal work are not per se operational indicators supporting
Mine Act jurisdiction, those cases dealt with consumer electrical power plant sites, and not sites
similar to those at the respondent’s facility. In Herman, the Court found its operations to be
“manufacturing” subject to OSHA jurisdiction. In United Energy Services, Inc., the Court
applied a functional analysis in concluding that a power plant operator that went on mine
property and loaded refuse from a pile and transported it to its plant was engaged in coal
preparation work that is subject to Mine Act jurisdiction.
I am not persuaded by the respondent’s arguments that the work it performs for
Dominion Power is work that is usually performed by utilities or other coal consumers, and is
not the type of work performed by coal producers or brokers. The respondent is not a power
plant, utility, consumer, or a coal producer or broker, and the fact that it does not engage in those
activities is not relevant in this case.
The credible evidence and un-rebutted facts in this
case clearly establishes that the respondent is a stand-alone coal blending facility identified as
such by signs prominently displayed on its property. The site location includes mobile
equipment such as several trucks, end-loaders, an office, a bath house, sampling and weight
scales, clearly identified storage areas, and a water tank and trucks, all of which provide the
logistical support for the employees as they perform their assigned duties related to the receipt,
testing, weighing, blending, mixing, storage, and transportation of coal from that site in order to
meet the coal specifications that are communicated to the respondent by Dominion Power on a
daily continual basis.
I am not further persuaded by the respondent’s argument that if it did not store and blend
the coal for Dominion, Dominion would have to do the work itself or find another contractor to
do it. In this case, no entity other than the respondent is the subject of MSHA’s asserted
jurisdiction and I assume it operates under a mine ID number assigned by MSHA to a mine
operator pursuant to 30 C.F.R., Part 41. In any event, pursuant to Section 3(d) of the Mine Act,
the definition of an “operator” includes any contractor performing services at a mine. Further, I
find that the respondent cannot avoid the Secretary’s enforcement scrutiny because it is
contractually obligated to perform these services for Dominion Power.

36 FMSHRC Page 714

Although the respondent’s site manager, Walter Crickmer, testified that no sizing,
screening, or crushing activities take place at the site and has “never done anything to improve
the coal quality”, he nonetheless admitted that the site does in fact blend the coal together on a
daily basis using its end-loaders that mix and blend it “by one bucket of this, and two buckets of
that”, following the aforementioned detailed specifications as to how the coal should be blended.
Contrary to Mr. Crickmer’s opinion that the work performed at the site has nothing to do with
the quality of the coal it processes, I find the credible evidence with respect to the testing,
blending, and re-blending as necessary, are directly accomplished in order to insure and maintain
the consistent quality of the coal pursuant to Dominion’s quality specifications.
I conclude and find that the working activities taking place at the respondent’s site,
namely, the mixing, blending, weighing, sampling, storing, loading, and transporting coal to
Dominion’s plant clearly meets the Mine Act definition of “work of preparing the coal”, and that
this work is clearly done to meet the specifications of its customer, Dominion Power. I further
conclude and find that the respondent’s custom coal blending facility is a “coal or other mine”
clearly within the statutory definitions found in the Mine Act, and is therefore subject to the
Mine Act and the Secretary’s enforcement jurisdiction. The respondent’s arguments to the
contrary ARE REJECTED.
The Alleged Violations
In support of the citations in issue, the Secretary relies on the testimony of MSHA
Inspector Thomas Bower that I find credible and un-rebutted. The respondent availed itself of
the opportunity to cross-examine the inspector, but focused primarily on questions related to
jurisdiction rather than facts related to the conditions or practices that prompted the inspector to
issue the citations with his findings noted on the face of the citations. The respondent presented
no credible evidence to rebut the Secretary’s position with respect to the facts associated to the
violations in issue. In this regard, I informed the parties that I expected to hear testimony
concerning the three alleged violations, as well as the jurisdictional issue. I further informed the
parties that I did not intend to come back to try the three citations and the respondent clearly
understood that this was the case (Tr. 19-20). Further, my hearing notice informed the parties
that the issues to be addressed included testimony related to the violations.
The respondent’s statement at page two of its post-hearing brief that I permitted the
parties to file briefs “on the issue of jurisdiction” suggests that I limited any briefing to that issue
alone is incorrect. My expectation of briefs was not limited to jurisdictional issues, with the
exclusion of any arguments related to the alleged violations. At the conclusion of the hearing,
the respondent stated that briefs would be helpful (Tr. 140). Further, when asked if the
respondent wished to discuss the violations, the counsel stated “no sir” and “we rest” (Tr. 138).
Although the respondent could have called the foreman who received the citations to testify, it
did not do so. During opening statements, the respondent stated “We think the citations are
relevant on the jurisdictional issues” (Tr. 19). The Secretary stated his intention to initially
establish jurisdiction and then proceed to each of the citations (Tr. 20).

36 FMSHRC Page 715

The Secretary’s assertions at page 13 of his post-hearing brief that “The facts of the
alleged violations at issue in these proceedings are not in dispute”, citing ALJ Exhibit 1, and the
trial transcript at pages 6 and 17 are inaccurate. ALJ Exhibit 1 concerns a joint stipulation with
respect to the admission of the citations in issue into evidence “without objection, except to
jurisdiction”. Each of the citations is described by the citation number, the date of issue, and the
cited mandatory safety standard. I find nothing to suggest that the parties agreed that the factual
conditions or practices described by the inspector on the face of each of the citations were not in
dispute or otherwise agreed to by the parties.
At page 6 of the transcript, I commented that the principal issue concerned jurisdiction,
and acknowledged the pre-trial position statement filed by the Secretary on November 15, 2013,
with a copy furnished to the respondent. The Secretary’s statement includes the intention to call
the inspectors who testified in this case, with the expectation of eliciting testimony including the
factual basis for the issuance of the citations. At page 3 of the statement, the Secretary
acknowledged that the issues to be litigated also included gravity, negligence, and the proposed
civil penalty assessments. The Secretary’s reference to page 17 of the transcript reflects a
comment by the Secretary’s counsel stating “and as Mr. Massie said, the facts really aren’t in
dispute”. I also note a statement by counsel at transcript page 11 that “there are going to be
disputes about the facts . . . There will be differences about what the facts mean”.
Based on all of the aforementioned circumstances, any suggestion that the respondent
was not expected to address the fact of violations at the hearing, or was somehow misled,
prejudiced, or treated unfairly for not doing so IS REJECTED. I conclude and find that the
respondent has waived its right and opportunity to present a defense or to rebut the Secretary’s
evidence in support of the violations. I further find that the credible and unrebutted testimony of
Inspector Bower establishes that the conditions and practices described in the citations constitute
violations of the cited mandatory safety standards. Accordingly, the citations ARE AFFIRMED.
History of Prior Violations
Exhibit A to the Secretary’s petition for assessment of civil penalties reflects no prior or
repeat violations, and no further information was received from the Secretary. Absent any
evidence to the contrary, I find the respondent has a good compliance record.
Good Faith Compliance
Based on the timely corrective actions as reflected in the citation termination notices, I
find that the respondent abated all of the violations in good faith.
Negligence
Based on the inspector’s credible testimony that the respondent’s foreman was not
responsible for any maintenance of the trucks delivering coal to the site, I accept and adopt his
“low negligence” determinations with respect to each of the citations.

36 FMSHRC Page 716

Size of Business and Effect of Civil Penalty Assessments on the Respondent’s
Ability to Remain in Business
The Secretary characterized the respondent as a small mine operator (Tr. 139), and the
parties stipulated that the payment of the proposed civil penalty assessments for the citations will
not adversely affect the respondent’s ability to continue in business. I adopt and incorporate
these agreements as my findings.
Gravity
Inspector Bower confirmed that he was not aware of any difficulties encountered by the
cited trucks inbound to the site, and to his knowledge they arrived safely (Tr. 51). While this
may be true, the fact remains that his un-rebutted and credible testimony clearly supports the
cited truck brake conditions and defective backup alarm. Accordingly, I find that the violations
were serious and would reasonably likely result in injuries.
Significant and Substantial Determinations
Inspector Bower determined that all of the citations were significant and substantial (S &
S) violations. With respect to Citation No. 820074, he testified that the cited truck braking
defects that he characterized as “faulty brakes, resulted in a 25% loss of breaking power”. He
confirmed that the conditions exposed employees who regularly traveled the site roads to
injuries, and that employees operating equipment were reasonably likely to suffer broken bones
or disabling and traumatic injuries in the event of an accident. He conceded this was “a worst
case” scenario and lesser injuries were conceivable (Tr. 30-36).
The inspector cited another truck after determining the brakes were out of adjustment and
that a leaking and defective air value resulted in a loss of braking air pressure that would
reasonably likely result in an accident. He stated that a “runaway truck” could result in a
collision accident resulting in permanently disabling injuries. (Citation No 8204726; Tr. 39-40)
The inspector cited the same truck after it was observed operating in reverse in congested
working areas where employees were present and the back-alarm did not sound. He confirmed
that the vehicle had an obstructed view to the rear, and that if it backed up over people working
in the area, they would be exposed to crushing and permanently disabling injuries (Citation No.
8204725; Tr. 33-34).
The established case precedents with respect to S & S violations, Cement Div. Nat’l
Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981), Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan.
1984), and U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), and U.S. Steel
Mining Co., Inc., 6 FMSHRC 1574 (July 1984), require proof of the following elements that
must be considered in terms of continued mining operations:
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

36 FMSHRC Page 717

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.
I conclude and find that the affirmance of the violations establishes the first Mathies
prong. With respect to the second prong requiring a discrete safety hazard contributed to by the
violation, I conclude and find that the credible unrebutted testimony of Inspector Bower
describing the defective truck braking systems, as well as the cited inoperative trucks backup
alarm, presented discrete safety hazards and measures of danger contributed to by the violations
pursuant to the second Mathies prong.
The third Mathies prong requires the presence of a reasonable likelihood that the hazard
contributed to will result in an injury. The evaluation of the risk of injury necessarily assumes
the continuance of normal mining operations. The credible and unrebutted testimony of the
inspectors establishes that 30 to 50 loaded trucks arrived and entered the respondent’s site on a
daily basis with frequent stops at the weighing scale, the storage areas where the coal is dumped
and blended by end-loaders. The trucks also traveled over inclined roadways on the property
and the same roads used by the work force on foot.
Inspector Bower testified credibly that the trucks backed up in congested areas where
workers and pieces of equipment are present, and that the cited facility brake conditions could
prevent the truck from stopping as intended or result in a truck “runaway”. Based on the brake
defects that he found, as well as his accident investigator experience involving truck accidents
under similar defective braking systems, he concluded that it was reasonably likely that an
accident would occur causing a wreck, with the resulting serious injuries that he described. One
of these trucks was also cited for an inoperative backup alarm and the inspector concluded that if
it backed over anyone, they would likely suffer crushing and disabling injuries.
I conclude and find that the hazardous defective truck brakes and backup alarm
conditions would reasonably likely contribute to an accident resulting in serious injuries to
employees at risk in the event they were to continue with their normal working duties.
Accordingly, I conclude and find that the third and fourth Mathies prongs have also been
established. Accordingly, all of the inspector’s S & S determinations ARE AFFIRMED.

36 FMSHRC Page 718

ORDER
Based on all of the aforementioned findings and conclusions in this case, including the
civil penalty assessment criteria found in Section 110(i) of the Mine Act, all of the citations ARE
AFFIRMED. Further, I accept and affirm the proposed penalty assessments of $100 for each of
the citations (8204724, 8204725, and 8204726).
The respondent shall pay a civil penalty assessment of $300 for the violations within
thirty (30) days of the date of this Order. Payment shall be submitted to the Mine Safety and
Health Administration (MSHA), U.S. Department of Labor, Payment Office, P.O. Box 790390,
St. Louis, MO 63179-0390, referencing the captioned docket numbers. Upon receipt of
payment, these proceedings ARE DISMISSED.

/s/ George A. Koutras
George A. Koutras
Administrative Law Judge

Distribution:
Anthony D. Jones, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson
Boulevard, 22nd Floor, Arlington, VA 22209-2296
Wade W. Massie, Penn, Stuart, & Eskridge, P.O. Box 2288, Abingdon, VA 24212

36 FMSHRC Page 719

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER, SUITE 290
875 GREENTREE ROAD
PITTSBURGH, PA 15220
TELEPHONE: 412-920-7240 / FAX: 412-920-8689

March 17, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
DRUMMOND COMPANY,
Respondent

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CIVIL PENALTY PROCEEDINGS
Docket No. SE 2011-274
A.C. No. 01-02901-242524
Docket No. SE 2011-403
A.C. No. 01-02901-248080
Mine: Shoal Creek Mine

DECISION
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of
Labor, 618 Church Street, Suite 230, Nashville, Tennessee for the
Secretary of Labor
John Church, Conference and Litigation Representative, U.S. Department
of Labor, Mine Safety and Health Administration, 135 Gemini Circle,
Suite 213, Birmingham, Alabama for the Secretary of Labor
Noelle Holladay True, Esq., Rajkovich, Williams, Kilpatrick & True,
PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington, Kentucky for
Respondent
Damon Jay Boiles III, Esq., Drummond Company, Inc., P.O. Box 10246,
Birmingham, Alabama for Respondent

Before:

Judge Andrews

These civil penalty proceedings are conducted pursuant to the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) (the “Mine Act” or “Act”). This matter
concerns Citation Nos. 8518691 and 7699789, both issued under Section 104(a) of the Act and
served upon Drummond Company, Inc. (“Drummond” or “Respondent”) by the Mine Safety and
Health Administration (“MSHA”). A hearing was held on July 10, 2013 in Birmingham,
Alabama at which the parties presented testimony and documentary evidence. After the hearing,
the parties submitted Post Hearing Briefs and informed the undersigned that Respondent
withdrew its contest of Citation No. 7699789 and agreed to pay the assessed penalty of
$1,203.00. The assessed penalty for Citation No. 8518691 is $8,209.00.

36 FMSHRC Page 720

PROCEDURAL HISTORY
These dockets collectively contained twenty-nine citations and were assessed penalties
totaling $81,620.00. On June 24, 2011, they were assigned to Administrative Law Judge Jeffrey
Tureck. On March 20, 2012, a motion for partial settlement that included twenty-five citations
was approved. The Secretary filed a motion for summary judgment concerning Citation Nos.
8518691 and 7699789 on October 9, 2012, which was denied in a decision by Judge Tureck on
November 23, 2012. Later, on November 26, 2012, a second motion for partial settlement that
covered two unrelated citations was approved, leaving only Citation Nos. 8518691 and 7699789
at issue for hearing. These cases were reassigned to the undersigned on February 12, 2013.
STIPULATIONS
1.

Respondent was the operator of the Shoal Creek Mine at all relevant times.

2.

The Shoal Creek Mine is a “mine” as that term is defined in Section 3(h) of the
Mine Act.

3.

Operations at the Shoal Creek Mine involve products which enter commerce or
products which affect commerce.

4.

Respondent is subject to the Federal Mine Safety & Health Act of 1977.

5.

The Citations attached to Exhibit A of the Secretary’s Petitions were issued to
Respondent.

6.

The penalty assessed for the alleged violations are appropriate to the size of the
operator.

7.

The operator demonstrated good faith in attempting to achieve rapid compliance
after notification of the alleged violations.

8.

The penalties assessed will not affect the operator’s ability to continue in
business.

THE CITATION
On November 15, 2013, MSHA Inspector Stanley Frank Wilkosz (“Wilkosz”) issued
Citation No. 8518691 for a violation of 30 C.F.R. § 75.1506(g). The Condition or Practice
stated:
At all times, the site and area around the refuge alternative shall be kept clear of
machinery, materials and obstructions that could interfere with the deployment or
use of the refuge alternative. The refuge alternative on the G-9 long wall section
#31 brattice had coal, rocks and blocks 1.5 feet deep by 8 feet wide from the side
of the chamber and toward the door.

36 FMSHRC Page 721

GX-1.1 Wilkosz designated this violation as reasonably likely to result in fatal injuries to ten
miners and significant and substantial (“S&S”) in nature. He further evaluated Respondent’s
negligence as moderate.Id. The citation was terminated on November 17, 2013 when the refuge
alternative was moved to the 34 cross cut, which was well rock-dusted, had adequate roof and rib
conditions, and was free from obstructions. Id.
LAW AND REGULATIONS
Wilkosz cited Respondent for a violation of 30 C.F.R. § 75.1506(g). This regulation,
entitled “Refuge alternatives,” states, “[a]t all times, the site and area around the refuge
alternative shall be kept clear of machinery, materials, and obstructions that could interfere with
the deployment or use of the refuge alternative.” 30 C.F.R. § 75.1506(g).
Wilkosz found that this violation was S&S in nature and was the result of moderate
negligence. A significant and substantial (“S&S”) violation is described in section 104(d)(1) 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)(1). A
violation is properly designated S&S “if, based upon the particular facts surrounding that
violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981).
The Commission has explained that:
[i]n order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard--that is, a
measure of danger to safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck
Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861
F.2d 99,103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987)
(approving Mathies criteria).
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 likelihood that the hazard
contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6
FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance with the language
1

Hereinafter, Government exhibits will be referred to as “GX” followed by a number.
Respondent’s exhibits will be referred to as “RX” followed by a number. Cites to the transcript
will be labeled “Tr.” followed by the page number(s).
36 FMSHRC Page 722

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., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
Negligence “is conduct, either by commission or omission, which falls below a standard
of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. §
100.3(d). “A mine operator is required to be on the alert for conditions and practices in the mine
that affect the safety or health of miners and to take steps necessary to correct or prevent
hazardous conditions or practices.” Id. MSHA considers mitigating circumstances which may
include, but are not limited to, actions taken by the operator to prevent or correct hazardous
conditions or practices. Id. Low negligence exists when “[t]he operator knew or should have
known of the violative condition or practice, but there are considerable mitigating
circumstances.” Id. Moderate negligence is when “[t]he operator knew or should have known of
the violative condition or practice, but there are mitigating circumstances.” Id. High negligence
exists when “[t]he operator knew or should have known of the violative condition or practice,
and there are no mitigating circumstances.” Id. See also Brody Mining, LLC, 2011 WL 2745785
(2011)(ALJ). Finally, the operator is guilty of reckless disregard where it “displayed conduct
which exhibits the absence of the slightest degree of care.” 30 C.F.R. § 100.3(d).
CONTENTIONS OF THE PARTIES
The Secretary contends that Respondent violated 30 C.F.R. § 75.1506(g) when it did not
remove the material that accumulated in front of the RA when it was moved. He argues that the
citation was correctly designated as S&S because miners could trip over the accumulation, lose
the lifeline and become disoriented interfering with their ability to retreat to the RA. He also
states that the alleged violation was the result of moderate negligence because the RA was in an
area of high travel, so a foreman should have noticed the material.
Respondent argues that no violation of 30 C.F.R. § 75.1506(g) occurred because nothing
interfered with the use or deployment of the RA. In the alternative, it contends that the alleged
violation is neither S&S nor the result of moderate negligence. In support, it states that the
material acted as a sort of ramp to the entrance of the RA and would actually help miners in the
event of an emergency situation. It also argues that the RA had been moved after the preshift
examination and had only been in place for a couple of hours at the time that the citation was
issued.

36 FMSHRC Page 723

SUMMARY OF THE TESTIMONY
The findings of fact are based on the record as a whole and my careful observation of the
witnesses during their testimony. In resolving any conflicts in the testimony, I have taken into
consideration the interests of the witnesses, or lack thereof, and consistencies, or inconsistencies,
in each witness’s testimony and between the testimonies of the witnesses. In evaluating the
testimony of each witness, I have also relied on his demeanor. Any failure to provide detail as to
each witness’s testimony is not to be deemed a failure on my part to have fully considered it.
The fact that some evidence is not discussed does not indicate that it was not considered. See
Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)(administrative law judge is not required to
discuss all evidence and failure to cite specific evidence does not mean it was not considered). I
have also fully considered the contents of the Official File including the pre- and post-hearing
submissions of the parties, and the exhibits admitted into evidence.
1. Testimony of Stanley Frank Wilkosz
Wilkosz is an inspector who has worked for MSHA for approximately five years. Tr. 15.
He began work in the coal industry in 1969 at the Renton Coal Mine in Renton, Pennsylvania
where he worked for about twelve years. Tr. 16. During this time, he was a general laborer, an
equipment operator and a fire boss. Tr. 17. After a twenty year hiatus, Wilkosz returned to the
industry with Respondent at the Shoal Creek Mine in 2005 as a face foreman. Tr. 17, 19. In this
capacity, he was responsible for taking air readings, conducting gas checks and conducting
preshift and onshift examinations. Tr. 19. He continued in this position until joining MSHA in
2008. Tr. 20.
Wilkosz issued Citation No. 8518691 on November 15, 2010, while at the mine
conducting a regular quarterly inspection. Tr. 20-21; GX-1. He was traveling a return air course
with Safety Director Larry Armstrong (“Armstrong”) and Union Representative Joe Weldon
when he noticed a pile of rocks along the side of the refuge alternative (“RA”). Tr. 21-23; GX-3.
According to Wilkosz, the RA is a man-made structure that supports life by facilitating
communications with the outside, supplying its own oxygen supply, filtering incoming air and
supplying food and water. Tr. 22. In the event of a disaster, this is where the miners retreat to as
a last resort. Tr. 22. Because it is required to be within a certain distance of the face, it must
advance and retreat with the miners. Tr. 23.
Wilkosz testified that the RA, including the door, was blocked by coal and rocks, as well
as blocks that had been used to build the stopping behind it. Tr. 27, 36; GX-3. When asked, he
did not recall Armstrong opening the door. Tr. 28. He stated that the average depth of the debris
was one and a half feet, which he measured using a measuring tape at the beginning and looking
toward the wall. Tr. 41. According to Wilkosz, it could have been deeper, but he did not dig.
Tr. 41. He theorized that the debris pile was created as the RA was pushed along the roadway by
a heavy-duty forklift. Tr. 39-40. He did not attempt to open the door because the RA is actually
sealed until an emergency situation occurs. Tr. 43. He testified at the hearing that if miners
cannot get into the RA, it is not considered to be “deployed.” Tr. 45. In his opinion, tripping
hazards constitute an interference or obstruction with escaping or getting to a refuge alternative.
Tr. 47.

36 FMSHRC Page 724

During cross-examination, Wilkosz acknowledged that refuge alternatives were not
required when he was employed at Respondent’s Shoal Creek Mine. Tr. 44. Therefore, he has
no experience in examining them. Tr. 45. He further admitted that during his deposition he
stated that he did not see anything that interfered with “deployment,” but he did see obstructions
that he did not measure. Tr. 46, 54. During the hearing, he also stated that regardless of debris
or obstructions, miners must step up into the RA anyway. Tr. 48-49.
Wilkosz determined that the violation was reasonably likely to result in injury and S&S
because miners would be following the lifeline in a disaster or emergency situation in which they
can’t see. Tr. 30, 38. If they hit tripping hazards, which can reasonably be assumed to cause
broken legs, etc., it is likely that miners would not make it into the RA. Tr. 30. If miners were to
lose the lifeline by tripping over the debris, they could become disoriented because the
environment is totally black, according to Wilkosz. Tr. 37, 40. In this environment, head lamps
and cap lights would be useless because of the smoke and dust in the air.2 Tr. 30. Given this
situation, he found that injuries would most likely be fatal because miners would not be able to
get into breathable airspace. Tr. 36. He explained that fires on a belt line or in coal creates
noxious gases and takes oxygen out of the air. Tr. 37.
Wilkosz further designated the negligence as moderate. Ex. 1. He testified that the
longwall coordinator stated that the RA had been moved that morning. Tr. 38. Wilkosz
acknowledged that the RA would have been moved after the preshift examination and admitted
that he had no evidence that a person of responsibility had seen the condition; although, he
testified that someone should have. Tr. 38-39, 51, 53. He stated that it was a heavily trafficked
with foremen passing it several times throughout the shift. Tr. 51. He did not withdraw the
miners or take the RA out of service because Armstrong represented that Respondent would
move the RA. Tr. 62.
2. Testimony of Larry Armstrong
Armstrong possesses a Bachelor’s as well as a Master’s degree in Counseling. Tr. 67.
He worked in the mining industry from approximately 1972-1988 as an inside laborer,
equipment operator and electrician for Jim Walter Resources before leaving the industry entirely
to pursue a career in counseling. Tr. 68. He returned to mining at Drummond in 2004 as a
safety inspector. Tr. 68. In this capacity, he travels with inspectors during their inspections,
including during Wilkosz’s inspection on November 15, 2010. Tr. 69, 74. He makes notes of
what he sees and points out mitigating circumstances. Tr. 69. He also tries to correct any
conditions that may not be citable, but need correcting nonetheless. Tr. 69. Outside of official
inspections, he inspects the mine himself, including the belts and mine ARCS3. Tr. 69.
Armstrong testified that he is certified in installing and examining refuge alternatives. Tr. 71.
According to Armstrong, a refuge alternative is a safe place for miners to gather in case
of an emergency such as a fire, an ignition or an explosion. Tr. 72. It provides the miners with
fresh air. Tr. 72. He explained that the RA has a step up into it which measures approximately
2

During his employment with Drummond, Wilkosz testified that he experienced a belt
fire and the limitations of sight to which he testified. Tr. 31-33.
3

This is another term for a refuge alternative. Tr. 69.
36 FMSHRC Page 725

eleven and three quarters inches from floor to door. Tr. 74. During the inspection, he described
the debris as coal and dirt that had “kind of tapered up into an incline.” Tr. 75. Armstrong stated
that the area was smooth and neither he nor Wilkosz had any difficulty walking in the area. Tr.
79-80. In his opinion, the depth was nine inches at the most because it started even with the
floor and was not over the top of the step. Tr. 75. He admitted that he did not take any
measurements, but he stated that he did not see Wilkosz take any either. Tr. 76-77. Armstrong
further disputed Wilkosz assertion of the location of material around the RA. Tr. 78; GX-3.
Armstrong testified that he did open the door to the RA during the inspection, and he did
not have push any material aside to do so. Tr. 80, 82. He did this because Wilkosz made that the
comment that the door may have been obstructed. Tr. 81. However, Armstrong stated that
Wilkosz turned and walked away just as he was demonstrating that the door could be opened.
Tr. 81. He was certain of these events because it was the first refuge alternative that he had ever
opened. Tr. 81. Armstrong stated that it was possible that Wilkosz had not heard him say that
the door would be opened. Tr. 82.
Armstrong explained that a branch line of the lifeline was physically attached to the RA
door on both the left and right sides. Tr.82-84; GX-3. He said that the material began
approximately three feet from the RA, and he believed that, in the event of an emergency, the
debris was such that, rather than interference, it may have actually helped miners by acting as a
sort of ramp. Tr. 85, 89-90. Even if a miner were to trip and lose the lifeline, he explained that
he or she would then likely reach up and to the right for the lifeline at which time the RA would
be found. Tr. 89. Armstrong’s boss, Randy Clements (“Clements”) also inspected the RA
approximately sixteen hours after the citation was issued. Tr. 90-91. According to Armstrong,
Clements also commented that the material did not interfere with the use of the door. Tr. 91.
During cross-examination, Armstrong admitted that he did see “some” rocks and blocks
in the area, as well as the coal and dirt that was even with the step. Tr. 101; GX-12. He later
stated that the blocks had been moved out of the way by hand into the corners to create a
pathway for the movement of the RA, and they would not have interfered with miners seeking
refuge. Tr. 101, 106, 108. Further, while Armstrong testified that he actually asked Wilkosz if
he wanted to see the door a second time, he generally described Wilkosz’s reaction as nonresponsive. Tr. 103-104.
3. Testimony of Kenneth Randy Clements
Clements started in the mines at Jim Walter Resources in 1979. Tr. 114. Here, he
basically operated every type of equipment, including the miner, roof bolter, shuttle car and
scoop. Tr. 114. While transferring between mines, he became a safety inspector, then a safety
superintendent. Tr. 114-115. At the time that the citation was issued, he held the title of Safety
Superintendent for the Shoal Creek Mine. Tr. 115. In this capacity, Clements oversees all safety
aspects of the mine such as dust sample collection and maintenance calibration. Tr. 115. He
reviews all citations that are issued to the Mine and determines which should be contested. Tr.
115.
Clements explained that at the time that the instant citation was issued, refuge alternatives
were a new requirement and a “touchy issue” with operators. Tr. 116. According to Clements,
as a new legal requirement, operators were trying to make sure that everything was “right.” Tr.
36 FMSHRC Page 726

116. He too was trained and certified by Jim Walters Resources in maintaining and examining
the RA. Tr. 122. Sixteen hours after Citation No. 8518691 was issued, Clements accompanied
Armstrong to the RA. Tr. 118. He averred that the conditions were the same as the time of
issuance because he could see the pathway of the machinery around the RA, which would not
have been viewable if the miners had begun to shovel the area out. Tr. 118. Given the
conditions as they existed, Clements testified that he did not understand why the citation was
issued. Tr. 117.
Clements stated that he was able to open the door to the RA with no obstruction or
pushing of material. Tr. 117. He further testified that he actually walked on the material and did
not see anything in the travelway that would constitute a tripping hazard. Tr. 119. He did see
some blocks on the left-hand side of the travelway; however, he argued that it did not interfere
with his approach to the RA. Tr. 119-120. At the time of the hearing, Clements could not recall
whether the lifeline was attached in this particular instance, but stated that it usually is now. Tr.
120-121. He admitted that Respondent did not comply with the requested termination time, but
he argued that it is not uncommon for MSHA to set a time that it knows cannot be met. Tr. 123.
ANAYLYSIS AND CONCLUSIONS
1.

Validity

I find that the Secretary has met his burden of proving a violation of 30 C.F.R. §
75.1506(g). Wilkosz credibly testified that there was material laying in front of the door to the
RA. In fact, Respondent does not dispute this fact. Instead, it argues that the material did not
interfere with the use or deployment of the RA. At hearing, Wilkosz testified that the material
was blocking the door. However, this information is not located in the narrative or the citation,
and Wilkosz later acknowledged that, in his deposition, he stated that the material was not
blocking the door. In light of this, I discredit the testimony that the door was blocked.
Regardless, I find that the material interfered with the use of the RA. In training for
emergency situations, miners were taught to follow the lifeline and branch line. At the end of
this branch line, they anticipated a step up into the RA. If a miner were to trip over the
unexpected material and lose the lifeline, he could become very disoriented. In his search for the
RA, he would be expecting to find a step if he were on his hands and knees. The material (as
described by both Wilkosz and Armstrong) would prevent this discovery.
Respondent argues that the “ramp” would actually be helpful to the miners in that they
would not have to step up into the RA in the low visibility. I find this unpersuasive. If a miner
were in an emergency situation, his training would presumably guide him in how to proceed.
Given this fact, the “ramp” would serve to confuse rather than guide. As such, I discredit this
argument and find that the Secretary has proven a violation of the regulation.
2. S&S
I further agree that the Secretary has proven that this violation is S&S in nature. As
stated above, a violation of the regulation has been found. This violation contributes to the
hazard of a miner falling during an emergency situation, becoming disoriented and failing to find
the RA. If this were to happen, it is reasonably likely that he could suffer inhalation or burn
36 FMSHRC Page 727

injuries depending on the particular emergency requiring evacuation. There is no doubt that
these injuries could lead to fatalities. In light of this, I find that the violation is S&S in nature.
Like the lifeline regulation, I find that 30 C.F.R. § 75.1506(g) is an emergency regulation.
Indeed, refuge alternatives are a last-resort means of survival. To apply the regulation in any
other situation than an emergency is to defy the basic meaning of it. Secretary of Labor v.
Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2367 (Oct. 2011), aff’d Cumberland Coal
Resources, LP v. Secretary of Labor, 717 F.3d 1020 (D.C. Cir. 2013). I do not rule that every
interference with a refuge alternative is S&S; however, given the circumstances as they exist in
this particular situation, I find that in an emergency situation, the material would have been
reasonably likely to result in the reasonably serious injury, including fatalities, to miners.
2. Negligence
I do not, however, find that the Secretary has proven that the violation was the result of
Respondent’s moderate negligence. As stated before, moderate negligence occurs when the
operator new or should have known about the condition, but there are some mitigating factors.
While I agree that Respondent should have known about the condition, there are considerable
mitigating factors here. First, Wilkosz received information from the longwall coordinator and
acknowledged at hearing that the RA was moved after the preshift examination occurred that
morning. Second, Wilkosz admits that he had no information whatsoever to suggest that any
agent of Respondent had knowledge of the material. Wilkosz based his designation on the idea
that the area was heavily trafficked and foreman would have passed it several times during the
shift. However, there was no evidence provided because the inspector had none. Given all of
this information, I find that the condition was the result of Respondent’s low negligence.
4. Penalty
Section 110(i) of the Mine Act delegates to the Commission and its judges the authority
to assess all civil penalties provided in the Act. 30 U.S.C. § 820(i). The Act delegates the duty
of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a) 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. The Act requires that in assessing civil
monetary penalties the Commission and its judges shall consider the six statutory penalty
criteria, found at Section 110(i) of the Act:
[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.
Id.
The Secretary and Respondent stipulated to the appropriateness of the penalty, the effect
on the operator’s ability to continue in business and the demonstrated good faith in achieving
rapid compliance. As stated above, I have affirmed the gravity designation and decreased the
36 FMSHRC Page 728

negligence. Having considered each of the six criteria and given that I decreased the negligence
attributable to Drummond, I find that the penalty for Citation No. 8518691 should be decreased
to $7,000.00.
ORDER
In light of the foregoing, it is ORDERED that Citation No. 8518691 is MODIFIED to
reduce the negligence attributable to the operator from “Moderate” to “Low.” Citation No.
7699789 remains as issued. It is further ORDERED that Drummond Company, Inc., PAY the
Secretary of Labor the sum of $8,203.00 within 30 days of the date of this Decision.4 Upon
receipt of payment, these cases are hereby DISMISSED.

/s/ Kenneth R. Andrews
Kenneth R. Andrews
Administrative Law Judge
Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219
John Church, Conference and Litigation Representative, U.S. Department of Labor, Mine Safety
and Health Administration, 135 Gemini Circle, Suite 213, Birmingham, AL 35209
Noelle Holladay True, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont
Centre Circle, Suite 375, Lexington, KY 40513
Damon Jay Boiles III, Esq., Drummond Company, Inc., P.O. Box 10246, Birmingham, AL
35202
/kmb

4

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
36 FMSHRC Page 729

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of CARLOS LOPEZ,
Complainant
v.
SHERWIN ALUMINA, LLC,
and its SUCCESSORS,
Respondent

March 19, 2014
DISCRIMINATION PROCEEDING
:
:
Docket No. CENT 2012-237-DM
:
Case No. SC-MD-11-23
:
:
:
:
:
Mine: Sherwin Alumina
:
Mine ID: 41-00906
:
:
DECISION

Appearances: Elizabeth M. Kruse, Esq., Josh Bernstein, Esq., U.S. Department of Labor, Office
of the Solicitor, Dallas, Texas, on behalf of Complainant;
Christopher V. Bacon, Esq., Vinson & Elkins, LLP, Houston, Texas, for
Respondent.
Before:

Judge Bulluck

This case is before me upon a Discrimination Complaint brought by the Secretary of
Labor (“Secretary”) on behalf of Carlos Lopez (“Lopez”) against Sherwin Alumina, LLC, and its
Successors (“Sherwin”), pursuant to section 105(c) of the Federal Mine Safety and Health Act of
1977 (“Act”), 30 U.S.C. § 815(c). The Secretary contends that Sherwin unlawfully suspended
Lopez on or about September 21, 2011, and terminated him on or about October 19, 2011 from
its Gregory, Texas Plant, because Lopez engaged in certain activities that were protected under
the Act.
On September 28, 2011, Lopez filed a Discrimination Complaint with the Secretary’s
Mine Safety and Health Administration (“MSHA”) under section 105(c)(2) of the Act.1 MSHA
1

30 U.S.C. § 815(c)(2) states, in relevant part:
Any miner or applicant for employment or representative of miners
who believes that he has been discharged, interfered with, or
otherwise discriminated against by any person in violation of this
subsection may, within 60 days after such violation occurs, file a

36 FMSHRC Page 730

(continued...)

special investigator Jerry Anguiano conducted an investigation and, consequently, the Secretary
determined that a violation of section 105(c) had occurred. On December 27, 2011, the
Secretary filed a Discrimination Complaint on behalf of Lopez, alleging that Sherwin illegally
terminated him for engaging in activities protected under section 105(c) of the Act, including
making hazard complaints to MSHA, making safety complaints to Sherwin management, and
publically advocating an increased MSHA presence at the Plant. A hearing was held in
Ingleside, Texas.
For the reasons set forth below, I conclude that the Secretary has established a prima
facie case of discrimination under the Act, and that Sherwin has failed to rebut the Secretary’s
prima facie case or defend its actions by proving that it would have terminated Lopez for his
unprotected activity alone.
I. Stipulations
The parties stipulated to the following:
1. The Federal Mine Safety and Health Review Commission has jurisdiction over
this action, pursuant to section 113 of the Mine Act, 30 U.S.C. § 823.
2. This action is brought by the Secretary pursuant to the authority granted by
section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2).
3. At all relevant times, Sherwin Alumina, LLC, Respondent, was an operator
as this term is defined by section 3(d) of the Mine Act, 30 U.S.C. § 802(d).
4. At all relevant times, Respondent was also a person within the meaning of
sections 3(f) and 105(c) of the Mine Act, 30 U.S.C. §§ 802(f), 815(c).
5. Respondent produces products that enter commerce or has operations or
products that affect commerce, all within the meaning of sections 3(b), 3(h) and 4 of the
Mine Act, 30 U.S.C. §§ 802(b), 802(h) and 803.
6. At all relevant times, Respondent employed Complainant as a maintenance
mechanic at the Sherwin Alumina, LLC, facility.

(...continued)

complaint with the Secretary alleging such discrimination. Upon
receipt of such complaint, the Secretary shall forward a copy of the
complaint to the respondent and shall cause such investigation to
be made as he deems appropriate.

36 FMSHRC Page 731

7. At all relevant times, Complainant was a miner within the meaning of section
3(g) of the Mine Act, 30 U.S.C. § 802(g).
8. At the time of his termination, Lopez was earning $32.55 an hour.
9. Pursuant to the settlement agreement on temporary reinstatement, Lopez was
economically reinstated on November 21, 2011, and has been paid as if he had been
working 48 hours a week: 40 hours at his regular rate of pay of $32.55 an hour, and eight
hours at his over-time rate of $48.33. Lopez has been receiving all employee benefits,
including health benefits.
10. Complainant engaged in protected activity within the meaning of section
105(c)(1) of the Mine Act, 30 U.S.C. § 815(c)(1), when he reported safety hazards and
violations to agents at the mine on or about September 12, 2011, and when he filed a
Complaint with MSHA on September 29, 2011.2
11. Respondent was aware of Complainant’s protected activity.
12. Complainant’s tags were properly placed and visible.
Tr. 48-50.
II. Factual Background
Sherwin Alumina processes bauxite to produce smelter grade alumina at its Plant in
Gregory, Texas. Tr. 551-52; Ex. C-18 at 7. Carlos Lopez worked at the Plant as a maintenance
mechanic since 1974, and served on Sherwin’s TIDES committee.3 Tr. 206; Ex. R-30 at 36-37.
In 2008, Lopez called MSHA to report a safety hazard involving a displaced valve in the
Clarification section. In 2009, he contacted MSHA about an improperly drained tank in the
Digestion section and, in 2010, he reported overhead bridge drains in Digestion that had fallen
and landed dangerously close to miners. Tr. 207-10. Also in 2010, Lopez warned his
supervisor, unit manager Michael Douglas, that he would call MSHA if Sherwin did not fix
certain leaking valves. Tr. 211-12, 394-95.
In August 2011, Sherwin held a series of informational meetings in which it delivered a
presentation to its workforce entitled the “MSHA Threat.” Tr. 370-75; Ex. R-29 at 19. In each
of several sessions, eighty to ninety miners were made aware that Sherwin was receiving a high
number of citations which, if continued, could place the company in a Potential Pattern of
Lopez filed his Complaint on September 28, and MSHA notified Sherwin on September
29. Ex. C-7 at 1-2.
2

3

TIDES is the acronym for Total Involvement Drives Employee Safety. Tr. 51.

36 FMSHRC Page 732

Violations (“PPOV”) status. Sherwin was extremely concerned about this situation, since PPOV
status is the precursor to substantially increased fines and heightened oversight by MSHA.
Tr. 370-71. During the presentation that Lopez attended, Lopez publically voiced a view
contrary to the intended message of the meeting, that “it [would] be a good thing for MSHA to
be on-site.” Tr. 221.
On September 12, 2011, Lopez, working in the Digestion department on the B shift, was
assigned to blind the valves of the 5-8 heater to prepare it for cleaning. Tr. 223-24; Ex. R-16.4
Before he began the task, Lopez, in accordance with Sherwin’s lockout/tagout policy
(“LO/TO”), placed “Do Not Operate, Men Working” tags on the heater’s valves at the three
levels from which the heater can be accessed. Stip. 12; Tr. 73, 226; Exs. C-5 at 1, C-14. At
some point during the job, Lopez advised the team resource coworker, Isaac Jaramillo, that he
was encountering difficulty completing the task because vapor valves on top of the heater were
leaking. Tr. 224-25. Lopez continued working at ground level, standing on a platform to work
on the condensate feed valve, when his immediate supervisor, Larry Mayfield, walked past him
and traveled up the stairs to the third level of the heater. Mayfield inserted a homemade air
ejector into a vent valve, forcing air into the tagged-out system. Tr. 226, 234, 303; Ex. R-3. The
introduction of air into the heater caused condensate to blow out of the flange, spraying Lopez
on his back and causing him to jump from the platform. Tr. 228-32.5 As Mayfield was coming
back down to ground level, he saw Lopez get sprayed, and told him that he would get a safety
system trainer (“SST”) to address the accident.6 Tr. 234. Thereafter, Mayfield and SST Eugene
(“Gene”) Carter returned to where Lopez was working, proceeded up to the third level and,
again, breaching the tags, Mayfield, at Carter’s instruction, re-enacted insertion of the air ejector.
Tr. 235, 338, 410. This time, however, no condensate was released. Tr. 236, 338. Thereafter, as
a result of the incident, Lopez, Mayfield and Carter went to Carter’s office, and Lopez was sent
to the medical unit to get checked-out. Tr. 237.
Two days after the condensate release, on September 14, Lopez, Mayfield, Carter, their
supervisor Douglas, TIDES facilitator John Gomez, safety manager Gus Aguirre, and union
president Terry Howard participated in a Root Cause Analysis (“RCA”) meeting as part of an
investigation of the incident. Tr. 51, 75-77, 144, 404. Douglas and Aguirre asked Lopez,
Mayfield, and Carter to give accounts of the incident. Tr. 406-10. While the accounts were
similar, Mayfield stated that when he first arrived on the scene, he invited Lopez to accompany
him to the third level to install the air ejector, but Lopez told him that using the ejector was a
stupid idea that would not work. Tr. 407. Lopez’s version of events did not include Mayfield’s
alleged invitation. Two days later, Douglas, refinery manager David Buick, and administration
Blinding a valve refers to opening up the space between the valve and the pipe flange,
and inserting a plate between them to prevent leakage. Tr. 223-24, 228-29.
4

5

Condensate is hot water. Tr. 229.

SSTs conduct internal safety investigations, communicate with employees, and assist
MSHA with site investigations. Tr. 336.
6

36 FMSHRC Page 733

director John Vazquez, troubled by the discrepancy between Mayfield’s and Lopez’s versions of
the initial breach, decided that they needed to meet with Lopez again to give him “the
opportunity to put his . . . story on the table.” Tr. 563.
On September 19, Douglas and operations coordinator Joe Contreras met with Lopez and
his union representatives Terry Howard and Tim Galvan. Tr. 153, 415, 417. Douglas gave
Lopez, Howard and Galvan unsigned copies of Lopez’s, Mayfield’s and Carter’s written
statements. Tr. 415-17; Exs. R-2, R-3, R-4. Douglas and Contreras left the room while Lopez
and his representatives reviewed the statements. Tr. 417. When they re-entered, Douglas asked
Lopez whether the handwritten statement was, in fact, his, and Lopez replied “can’t answer
that.” Tr. 417-18. Douglas then discussed Mayfield’s and Carter’s statements with Lopez and
his representatives, who underlined the parts of the statements which they believed to be
inaccurate. Tr. 421-23; Ex. R-5 at 2-3. Douglas then asked Lopez to submit another written
statement.
Tr. 424. Howard responded that Lopez was in no shape to give a statement,
because he was stressed out from discovering that Sherwin had locked him out of the Plant
earlier that morning. Tr. 424. After a short break, Lopez signed the original statement. Ex. R-2.
The next day, Douglas held a meeting with Buick and other managers to discuss the
results of the investigation and discipline for Mayfield, Carter and Lopez. Tr. 433-34, 437.
Because Douglas was their supervisor, he presented information to the managers about the
incident and their disciplinary records. Tr. 434; Ex. R-30 at 76. After Douglas’ presentation, the
managers agreed to recommend that Mayfield be suspended with a view toward termination, that
Carter be suspended only, and that Lopez be suspended pending further investigation which, as
in Mayfield’s case, was intended to result in termination. Tr. 436, 438, 447. After the meeting,
Buick summarized the managers’ discussion in an email. Ex. R-31.
On September 21, Sherwin issued to Lopez an Hourly Personnel Action, which notified
him that he was suspended for five days pending further discipline for “failing to notify coworkers of the red tag status of 5-8 heater and obstructing an ongoing safety investigation into
the 5-8 heater incident.” Tr. 472; Ex. R-16. Pursuant to the managers’ recommendation that
Lopez be terminated, Vazquez reviewed the documentation, including Lopez’s personnel file,
and concurred with the recommendation; Sherwin terminated Lopez on October 19, 2011. Tr.
564-65, 574.
III. Findings of Fact and Conclusions of Law
In order to establish a prima facie case of discrimination under section 105(c) of the Act,
a complainant must prove by a preponderance of the evidence “(1) that he engaged in a protected
activity, and (2) that the adverse action was motivated in any part by the protected activity.”7
7

30 U.S.C. § 815(c)(1) states, in relevant part:
No person shall discharge or in any manner discriminate . . .

36 FMSHRC Page 734

(continued...)

Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800
(Oct. 1980), rev’d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (3d Cir. 1981). The Commission has noted that “direct evidence of motivation is rarely
encountered; more typically, the only available evidence is indirect.” Sec’y of Labor 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). Circumstantial
evidence may include: 1) coincidence in time between the protected activity and the adverse
action;
2) knowledge of the protected activity; 3) hostility or animus toward the protected
activity; and
4) disparate treatment. The more that hostility or animus is specifically directed
toward the protected activity, the more probative it is of discriminatory intent. Id. at 2510.
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 protected
activity or that the adverse action was in no part motivated by protected activity.” Sec’y of
Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 818 n.20 (Apr. 1981).
The operator may also affirmatively defend its actions by proving, by a preponderance of the
evidence, that it 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. The Commission has explained that an affirmative defense should not be “examined
superficially or be approved automatically once offered.” Haro v. Magma Copper Co., 4
FMSHRC 1935, 1938 (Nov. 1982). In reviewing affirmative defenses, the judge must
“determine whether they are credible and, if so, whether they would have motivated the
particular operator as claimed.” Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982).
The Commission has explained that “pretext may be found, for example, where the asserted
justification is weak, implausible, or out of line with the operator's normal business practices.”
Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990).
However, the Commission has also stated that “[its] judges should not substitute for the
operator’s business judgment [their] views of “good” business practice.” Chacon, 3 FMSHRC at
2516.

(...continued)
against . . . any miner . . . because such miner . . . has filed or made
a complaint under or related to this chapter, including a complaint
notifying the operator or the operator’s agent . . . of an alleged
danger or safety or health violation in a coal or other mine . . . or
because such miner . . . has instituted or caused to be instituted any
proceeding under or related to this chapter . . . or because of the
exercise by such miner . . . on behalf of himself or others of any
statutory right afforded by this chapter.

7

36 FMSHRC Page 735

A. Prima Facie Case
For the reasons set forth below, I find that the Secretary has successfully made out a
prima facie case by showing that Lopez engaged in protected activity and was terminated, at
least in part, because of his protected activity.
Sherwin concedes that the following events constitute protected activity: 1) Lopez made
three hazard complaints to MSHA between 2008 and 2010; 2) Lopez reported a leaking valve to
MSHA in the Fall of 2010; 3) Lopez publically expressed his opinion in the “MSHA Threat”
meeting that MSHA’s presence at the Plant would be a “good idea;” 4) Lopez reported that
Mayfield had breached his tags on September 12, 2011; and 5) Lopez filed a Discrimination
Complaint with MSHA on September 28, 2011. Stip. 10; Resp’t Br. at 14-15; Ex. C-7 at 2.
The Secretary relies upon circumstantial evidence to prove that Sherwin discriminatorily
terminated Lopez because of his protected activity. As will be discussed fully, I find that the
Secretary has established a temporal nexus between Lopez’s protected activity and his
termination, that Sherwin’s management knew of Lopez’s protected activity and demonstrated
animus, and that Lopez was subjected to disparate treatment.
The Commission has found that a discharge occurring approximately two weeks after
protected activity is sufficiently coincidental in time to support a finding of discriminatory
motive. Secretary of Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 959 (Sept.
1999). This case presents an even stronger temporal connection, since Sherwin’s managers
initiated the first step of Lopez’s termination on September 20, i.e., recommending that he be
suspended pending further investigation, a mere eight days after Lopez had reported the breach
of his tags. Tr. 358-59. The recommendation to suspend Lopez also came in the month
following the “MSHA Threat” presentation, where his suggestion for increased MSHA oversight
fed his plant-wide reputation as a whistleblower. Tr. 59-62, 191-92, 307-08, 333, 394-96, 470.
Considering that Sherwin was in a damage-control mode to avoid PPOV status, the impetus to
silence an established complainer is evident.
Sherwin has acknowledged that it was aware of Lopez’s protected activity. Stip. 11. The
Commission has recognized that an operator’s knowledge of protected activity “is probably the
single most important aspect of a circumstantial case.” Chacon, 3 FMSHRC at 2510.
CEO Tom Russell’s and David Buick’s reactions to Lopez’s complaints establish
Sherwin’s hostility toward Lopez’s protected activity at the senior management level. In
Morgan v. Arch of Illinois, the Commission reversed the judge for failing to consider
circumstantial evidence indicating the unlikelihood that a lower-level decision maker was
oblivious to the animus of an upper-level manager toward a miner who had engaged in protected
activity. 21 FMSHRC 1381, 1390-92 (Dec. 1999). Specifically, the upper-level manager’s
dislike of the miner was so well-known, that it became the subject of jokes by several miners.
Id. at 1390. I fully credit Howard’s testimony that Russell viewed Lopez so negatively, that he
believed Lopez to have intentionally created safety hazards to bring MSHA to the Plant. Tr.

36 FMSHRC Page 736

148. Since Russell had expressed his disdain for Lopez to hourly workers such as Gomez, it is
highly probable that he made disparaging remarks about Lopez to supervisors such as Douglas
and Buick. Tr. 59-60. Buick’s disdain for Lopez’s tendency to contact MSHA rather than
address his safety concerns through Sherwin’s internal procedures, as well as his public
advocacy for MSHA presence at the Plant, also indicate hostility. Tr. 63-65; Ex. R-30 at 44, 6061, 90. Moreover, the Commission has recently reasoned that presumptively negative
characterizations of employees such as “difficult,” are indicative of hostility toward protected
activity. Turner v. National Cement, 33 FMSHRC 1059, 1069 (May 2011). Buick’s
characterization of Lopez as a “crusty old bloke,” given Lopez’s reputation as a complainer,
takes on a negative connotation. Ex. R-30 at 91.
While Russell and Buick did not initiate the decision to terminate Lopez, it is highly
likely that their negative opinions of Lopez influenced Douglas, their subordinate. Douglas
stated that he made the initial decision to terminate Lopez and, since he controlled the
information imparted to the other managers about the investigation, it is highly likely that he
influenced their recommendation. While Vazquez reviewed and concurred with Lopez’s
recommended discipline, his paper review was merely cursory. Thus, I find that Douglas was
the management official responsible for Lopez’s termination. Tr. 448-449, 513, 572; Ex. R-30 at
76. Additionally, despite Lopez’s recognition that Douglas is a “gentleman” who has treated
him fairly and respectfully, Lopez’s thinly veiled threat to contact MSHA about problems at the
Plant provides ample motivation for animus on the part of Douglas, as exemplified by Douglas’
urging that Lopez give Sherwin an opportunity to fix the problems about which he complained.
Tr. 249, 394-95.
Sherwin’s discriminatory motivation is also evidenced by its disparate treatment of
Lopez in assessing discipline for the three employees involved in the condensate release
incident. Mayfield, who was serving a one-year probationary period for performance issues,
including concerns that he worked unsafely, was fired, and clearly got his due. Tr. 434-35.
Carter, however, is an entirely different matter. Carter, a safety supervisor tasked with training
employees in safe work procedures, demonstrated highly egregious conduct. He directed a
subordinate supervisor to repeat his breach of Lopez’s tags on the 5-8 heater, thereby placing
Lopez in harm’s way a second time. Alarmingly, Carter did not recognize that his conduct
violated Sherwin’s LO/TO policy until he was verbally reprimanded by his supervisors. Tr. 34548. Carter’s lack of awareness of the company’s LO/TO policy - - a safety policy that he should
have been overseeing - - was apparently of little concern to Sherwin, as demonstrated by its
amplification of Carter’s clean disciplinary record, as well as his contriteness and admission that
his breach was the result of a “brain-fade.” Indeed, Sherwin gave Carter a slap on the wrist by
placing him on a one day suspension and four days administrative leave. Tr. 542; Exs. R-30 at
24-26, R-31. If anything, some of Sherwin’s managers believed that the sentence was too heavyhanded, questioning whether Carter should receive any discipline at all, since, after all, he was
just investigating the initial breach. Tr. 438-440. On the other hand, Lopez, the non-supervisory
employee, was held responsible for his supervisors’ lack of safety protocol, and fired.

36 FMSHRC Page 737

While Buick testified that Sherwin’s expectations of salaried employees, and particularly
SSTs, are greater than for hourly workers, Sherwin’s respective treatment of Carter and Lopez
would seem a reversal of expectations. Ex. R-30 at 84. The operator virtually excused Carter’s
offense while, on the other hand, blowing out of proportion Lopez’s minor, if any, involvement.
The only reasonable rationale for such lopsided treatment is Lopez’s reputation as a
whistleblower, and Carter’s as a team player.
Therefore, I find that the Secretary has established that Sherwin’s termination of Lopez
was motivated by his protected activity. I also find that Sherwin has not proven that it was in no
way motivated by Lopez’s protected activity in its decision to terminate him and, therefore, that
it has failed to rebut the Secretary’s prima facie case.
B. Affirmative Defense
The Hourly Personnel Action specifies two reasons for suspending Lopez pending further
discipline: failure to warn co-workers of the red tag status of the 5-8 heater and obstructing the
investigation. Ex. R-16. At hearing, however, Sherwin changed horses in midstream, by
abandoning the first charge and shifting its defense exclusively to the second charge, that Lopez
was not forthcoming with information and obstructed the investigation. Resp’t Br. at 21-23;
Tr. 531-32.
After the September 20 management meeting, Buick’s email, approved by Douglas,
stated that Lopez’s failure to “take action to prevent his supervisor breaching TOLO [LO/TO]
procedures,” was his “first offense,” and the fact that he “stood by and did not take action to stop
area SST breaching tagging procedures,” was his “second offense.” Ex. R-31; Tr. 540-42.
Indeed, Buick testified at his deposition that the managers partially based their recommendation
on the fact that Lopez knowingly and willfully allowed others to breach his tags. Ex. R-30 at 28.
At hearing, however, Douglas testified that Lopez would not have been terminated and, in fact,
no offense would have been committed, if he had just admitted that he had allowed his
supervisors to breach his tags. Tr. 531-32. Moreover, in its post-hearing argument, Sherwin
abandons the failure to warn defense and relies solely on the obstruction charge to justify
Lopez’s termination:
What ultimately drove Douglas to recommend Lopez’s termination was his belief
that Lopez was untruthful during the investigation, not because he believed that
Lopez had knowingly allowed Mayfield to breach his tags. In fact, Douglas
agreed that he would not have recommended termination had Lopez admitted that
Mayfield’s version of events was accurate.
Resp’t Br. at 21-22. Sherwin’s abandonment of the failure to warn charge is easily explained,
given that the charge unreasonably saddles Lopez with the burden of bearing responsibility for
his supervisors’ unsafe and reckless conduct. Such logic turns the hierarchical structure upside
down, such that the student takes on the role of the teacher. I find that the failure to warn charge
is simply unworthy of credence and, based on Sherwin’s shift from that claim, it appears that the

36 FMSHRC Page 738

operator has drawn the same conclusion. Consequently, my analysis now focuses on the second
charge, that Lopez obstructed the investigation.
Sherwin claims that it was very troubled by Lopez’s lack of cooperation in the ensuing
investigation. Resp’t Br. at 21. It bases its conclusion primarily on the discrepancies between
Mayfield’s and Carter’s accounts on the one hand, and Lopez’s account on the other, as well as
Lopez’s “can’t answer that” response to Douglas when presented with a handwritten statement
for his verification; Sherwin fully credits the supervisors’ accounts that Lopez knew what
Mayfield was planning to do. Resp’t Br. at 21-23; Tr. 443; Exs. R-3, R-4, R-5. According to
Sherwin, it was forced to make a credibility determination as to whether Lopez was lying.
Resp’t Br. at 22. In support of its argument, it cites Sec’y of Labor on behalf of Owens v.
Drummond Co., Inc., a case in which the judge found that the operator affirmatively defended its
firing of miners who had engaged in protected activity, because it reasonably believed that they
were stealing company property and/or selling drugs. 25 FMSHRC 594, 608-10 (Oct. 2003)
(ALJ Weisberger). Similarly, Sherwin reasons, since Douglas’ belief that Lopez was untruthful
was reasonable, it was justified in terminating him. The reasonableness of Douglas’ belief is
highly suspect, however, given that the evidence of the alleged pre-breach verbal exchange
between Mayfield and Lopez essentially boils down to Mayfield’s word against Lopez’s. It
would seem that it never occurred to Douglas that Mayfield and Carter had reason to modify
their accounts of the incident in order to mitigate the egregiousness of their respective breaches;
this is especially true of Mayfield, who was already on probation.
In Turner, the Commission set forth three ways in which a complainant may challenge
the credibility of an operator’s affirmative defense. A complainant may establish that the
operator’s proffered reasons have no basis in fact, i.e., they are factually false. 33 FMSHRC at
1073. A complainant may show that the proffered reasons did not actually motivate the
discharge, i.e., a complainant admits the factual basis underlying the employer’s proffered
reasons and that such conduct could motivate dismissal, but attacks the credibility of the
proffered reasons indirectly by showing circumstances which tend to prove that an illegal
motivation was more likely than the legitimate business reasons proffered by the employer.
Id. Finally, a complainant may show that the employer’s proffered reasons were insufficient to
motivate termination, i.e., other employees were not terminated even though they engaged in
conduct substantially similar to the conduct which formed the basis of the complainant’s
termination. Id. The evidence clearly demonstrates that the defense Sherwin elected to advance,
that Lopez was untruthful and uncooperative, did not actually motivate his discharge and, under
the second Turner approach, is unworthy of credence.
Any adverse conclusion that Sherwin drew respecting Lopez’s behavior is based on a
sham investigation that amounted to a witch hunt designed to fire Lopez. Starting with the RCA
Meeting on September 14, Sherwin demonstrated to Lopez that it was skewing the facts against
him, despite management’s claim of wanting to give him opportunities to tell his side of the
story. Tr. 78, 411, 563. In fact, Sherwin had already decided to fire Lopez before meeting with
him again on September 19. Sherwin had locked Lopez out of the Plant prior to that meeting.
Moreover, I credit Howard’s testimony that he observed Douglas and Contreras in possession of

36 FMSHRC Page 739

the Hourly Personnel Action in that meeting, which leads to a reasonable conclusion that the
document officially terminating Lopez had been written up prior to the conclusion of the
investigation. Tr. 153, 156, 158-59, 424; Ex. R-16. That document, itself, is telling. Douglas
mischaracterized Lopez’s suspension as “pending further discipline” rather than “pending further
investigation” and, again, he made the same mistake at hearing, then corrected his terminology.
Ex. R-16, Tr. 447-48. Barring Lopez’s access to the Plant on the morning of September 19, in
conjunction with credible evidence that the written disciplinary action existed, at least, as of that
date, is compelling evidence that Sherwin had already settled on its course of action and Lopez’s
fate had been pre-determined. In light of Sherwin’s obvious attempt to transfer the lion’s share
of the blame from the offenders, Mayfield and Carter, to Lopez, the victim of the condensate
release, Lopez’s reticence during the so-called investigation is not only explainable, but
reasonable; any cooperation on his part would have amounted to ammunition for his undoing.
Beginning with the September 20 management meeting, Sherwin was unconcerned with
objectively assessing discipline, and was solely focused on crafting rationales for salvaging
Carter, while terminating Lopez. Despite Carter’s role as a safety supervisor and his obvious
LO/TO breach, the managers were slow to recognize that he had done anything wrong at all, and
made much ado about his clean record and service to Douglas’ as his “right-hand safety man.”
Tr. 438, Ex. R-30 at 24. Moreover, Sherwin’s management as a whole was largely dismissive of
Carter’s lack of awareness of safety protocol and endangerment of Lopez. Regarding Lopez,
however, the company glossed over his good work record and, appreciating the flimsiness of
requiring him to supervise his supervisors, put all its weight behind characterizing him as a liar
in its sham investigation. Given that Lopez was essentially being railroaded, I find that his
behavior was prudent rather than uncooperative.
Douglas elected to bypass Sherwin’s progressive discipline policy to fast-track Lopez’s
firing, ostensibly based on the severity of Lopez’s misconduct. However, not only was Lopez’s
responsibility for the condensate release, an event that could have seriously injured him,
negligible, but it would have been very difficult to fire him utilizing progressive discipline, given
his admittedly clean disciplinary record. Tr. 521-23.
Despite Sherwin’s attempt to abandon its “failure to warn” charge during the course of
this proceeding, it was, nevertheless, officially documented as one of the two reasons for
Lopez’s termination. I find, similarly, that it fails, but under the third Turner approach. Carter
not only failed to warn Mayfield against breaching Lopez’s tags but, in fact, directed him to do
so; for this infraction, Carter was afforded the utmost leniency.
If Douglas really believed either or both of the charges, that Lopez had a duty to warn his
supervisors and that he was being untruthful and uncooperative, it was unreasonable to forego
progressive discipline and terminate him based upon those beliefs. Lopez’s infractions, under
any reasonable standard, could not have been more egregious than the actual breaches,
themselves.

36 FMSHRC Page 740

Therefore, based on my finding that the reasons Sherwin gives for terminating Lopez,
that he failed to warn his supervisors against breaching his tags and that he lied during the
ensuing investigation, are unworthy of credence, Sherwin has failed to establish an affirmative
defense for firing Lopez. The sheer weight of the circumstantial evidence makes it far more
likely than not that Sherwin’s reasons for terminating Lopez were pretextual.
In conclusion, I find that the Secretary has established a prima facie case of
discrimination under section 105(c) of the Act. I also find that Sherwin has failed to either rebut
the Secretary’s prima facie case or affirmatively defend its termination of Lopez. Therefore,
based on a thorough review of the record, I conclude that the Secretary has proven, by a
preponderance of the evidence, that Sherwin discriminatorily terminated Lopez, and that Lopez
is entitled to relief.
IV. Penalty
While the Secretary has proposed a civil penalty of $30,000.00 for this violation, the
judge must independently assess the appropriate penalty based on the statutory penalty criteria.
Sellersburg Co., 5 FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d 1147 (7th Cir. 1984).
Sherwin is a large operator and, absent any contention by the operator to the contrary, I find that
the proposed penalty will not affect its ability to continue in business. Sherwin’s relevant history
of violations contains no charges under section 105(c) of the Act and, therefore is not an
aggravating factor in assessing an appropriate penalty. The willful decision to terminate Lopez,
a well-known safety advocate who had a history of reporting safety concerns to management and
contacting MSHA, was blatant and influenced by the highest levels of Sherwin’s management.
Therefore, the violation was very serious, since it not only deprived an otherwise good worker of
employment, but also served as a chilling effect on other miners who would consider raising
safety concerns within the company or with MSHA. Therefore, based on the seriousness and
willfulness of Sherwin’s unlawful treatment of Lopez, I find that a penalty of $45,000.00 is
appropriate.
ORDER
Based on my conclusion that Sherwin Alumina, LLC, and its Successors discriminated
against Carlos Lopez when he was suspended on September 21, 2011, and terminated on
October 19, 2011, the Discrimination Complaint is GRANTED. Sherwin Alumina, LLC, and its
Successors are ORDERED TO REINSTATE Carlos Lopez to the same position he held prior
to his discharge or to a similar position at the same rate of pay and with the same or equivalent
duties assigned to him. Additionally, within ten days of the date of this Decision, counsels for
the Secretary and Sherwin Alumina, LLC, and its Successors are ORDERED TO CONFER to
determine the appropriate back pay and interest to be awarded to Carlos Lopez for any days lost
due to his suspension and termination. The parties shall also confer and agree regarding any
other appropriate relief required to make Carlos Lopez whole for the period that he was illegally
suspended and terminated. Within 15 days of the date of this Decision, counsels shall report to

36 FMSHRC Page 741

me jointly in writing the results of their discussions, which shall result in a Final Decision and
Order awarding the agreed-upon relief. If counsels are unable to agree, they shall advise me
jointly in writing within 15 days of the date of this Decision, which shall result in issuance of an
Order regarding submission of additional evidence on the issue of relief.
Further, and effective immediately, Sherwin Alumina, LLC, and its Successors are
ORDERED TO CEASE AND DESIST from interfering with the section 105(c) rights of
Carlos Lopez while he remains in their employ, expunge from Carlos Lopez’s employment
records all references to the circumstances giving rise to his unlawful discharge, and provide a
neutral employment reference for Carlos Lopez, if requested.
Further, within 30 days of the date of this Decision, Sherwin Alumina, LLC, and its
Successors are ORDERED TO PAY a civil penalty of $45,000.00 for the violation of section
105(c) of the Act.8
Carlos Lopez’s TEMPORARY REINSTATEMENT SHALL REMAIN IN EFFECT
until a FINAL DECISION ON RELIEF is issued.

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

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 include Docket
number and case number.
8

36 FMSHRC Page 742

Distribution: (Certified Mail)
Elizabeth M. Kruse, Esq., U.S. Department of Labor, Office of the Solicitor, 525 S. Griffin
Street, Suite 501, Dallas, TX 75201
Josh Bernstein, Esq., U.S. Department of Labor, Office of the Solicitor, 525 S. Griffin Street,
Suite 501, Dallas, TX 75201
Christopher V. Bacon, Esq., Vinson & Elkins, LLP, First City Tower, Suite 2500, 1001 Fannin
Street, Houston, TX 77002
Carlos Lopez, 6821 South Heaven, Corpus Christi, TX 78412
/ss

36 FMSHRC Page 743

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER, SUITE 290
875 GREENTREE ROAD
PITTSBURGH, PA 15220
TELEPHONE: 412-920-7240 / FAX: 412-920-8689

March 19, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
NALLY & HAMILTON ENTERPRISES,
INC.,
Respondent

:
:
:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 2012-1031
A.C. No. 15-18986-287861-01
Mine: Balkan
Docket No. KENT 2012-1248
A.C. No. 15-19076-290524
Mine: Chestnut Flats

DECISION
Appearances:

Joseph B. Luckett, Esq., U.S. Department of Labor, Office of the Solicitor,
618 Church Street, Suite 230, Nashville, TN for the Secretary
Stephen Thomas Hamilton, Jr., Esq., Saltsman & Willett, 212 East
Stephen Foster Avenue, P.O. Box 327, Bardstown, KY for Respondent

Before:

Judge Steele

These cases are before me on petitions for assessment of civil penalties filed by the
Secretary of Labor (the “Secretary”), acting through the Mine Safety and Health Administration
(“MSHA”) against Nally & Hamilton Enterprises, Inc. (“Nally” or “Respondent”) at its Balkan
and Chestnut Flats mines 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”). The Secretary seeks
civil penalties in the amount of $10,922.00 for three alleged violations of the Secretary’s
mandatory safety standards for underground, surface or other mines. The parties presented
testimony and documentary evidence at the hearing which was conducted on May 29, 2013 in
London, Kentucky. At the conclusion of the evidence, Respondent withdrew its contest of
Citation No. 8369110 and agreed to pay $900.00, as assessed by the Secretary. For the reasons
set forth below, I vacate Citation Nos. 8369111 and 8369121.
STIPULATIONS
1.

Nally & Hamilton Enterprises, Inc. is subject to the Federal Mine Safety and
Health Act of 1977.

36 FMSHRC Page 744

2.

Nally & Hamilton Enterprises, Inc. has an effect upon interstate commerce within
the meaning of the Federal Mine Safety and Health Act of 1977.

3.

Nally & Hamilton Enterprises, Inc. is subject to the jurisdiction of the Federal
Mine Safety and Health Review Commission and the presiding Administrative
Law Judge has the authority to hear this case and issue a decision.

4.

Nally & Hamilton Enterprises, Inc. operates the Balkan Mine, I.D. No. 15-18986.

5.

The Balkan Mine had 181,090 hours worked in 2011.

6.

Nally & Hamilton Enterprises, Inc. operates the Chestnut Flats Mine, I.D. No. 1519076.

7.

The Chestnut Flats Mine produced 385,017 tons of coal in 2011.

8.

A reasonable penalty will not affect Nally & Hamilton Enterprises, Inc.’s ability
to remain in business.

Government Exhibit 1.1
CITATION NO. 8369111
Citation No. 8369111 was issued under Section 104(a) of the Act on December 8, 2011 at
7:20 a.m. and was based upon the inspector’s observation of a violation of 30 C.F.R. §
77.1607(b). This safety standard, entitled “Loading and haulage equipment; operation,” states,
“[m]obile equipment operators shall have full control of the equipment while it is in motion.” Id.
In his narrative, the inspector found [All errors copied as written]:
Due to the slick haul road with 10 to 14 inches of muddy material (the determined
responsibility of the operator to maintain), equipment including personnel
vehicles and coal truck operator, observed hauling on the slick haul road, were not
in full control while the equipment was in motion. At a test speed of 5 miles an
hour a personnel vehicle slide (like a sled) thru the intersection, into oncoming
traffic including Tractor and Trailor Coal Trucks and a swivel tail rock truck.
Note: This citation was one of the contributing factors that contributed to the
issuance of imminent danger order #8369109 issued on 12-08-2011. therefore no
abatement time was set.
GX-3.
1

Hereinafter, the Secretary’s exhibits will be referred to as “GX” followed by a number.
Similarly, Respondent’s exhibits will be referred to as “RX” followed by a number. The
transcript will be referred to as “Tr.” followed by the corresponding page number.

36 FMSHRC Page 745

The inspector noted that the risk of injury or illness was reasonably likely and significant
and substantial (“S&S”) in nature. Id. The injury could be reasonably expected to result in lost
workdays or restricted duty and would affect one person. Id. The negligence was assessed as
moderate. Id. The Citation was terminated when the road was graded and a berm of correct
height was constructed. Id. The Secretary proposed a penalty of $900.00 for the alleged
violation.
1. The Secretary’s Evidence2
MSHA inspector John Sizemore (“Sizemore”) testified that the roadway had between ten
to fourteen inches of muddy material that was very slick and extended up the road for
approximately 100-150 feet. Tr. 20-21. This measurement was obtained by tape measure in four
or five different locations. Tr. 21. In order to test the conditions, he decided to drive his fourwheel drive Jeep Laredo down the hill. Tr. 20-21. When he hit the brakes at a speed of five to
ten miles per hour, he testified that he slid through the entire area, including a stop sign at the
bottom of the hill. Tr. 21, 33.
Sizemore explained that the hazard associated with the condition is that a vehicle would
try to stop and slide through the intersection at the bottom of the hill. Tr. 22. During his
inspection, he observed a fully loaded back-dump3 hauling to and from the preparation plant to
the lower level of the mine. Tr. 22-23. He testified that he stopped the driver, Herschel Collett
(“Collett”), and questioned him about the road conditions. Tr. 23. According to Sizemore,
Collett stated, “I look both ways before I go down that area and then I don’t touch my brakes,
and that’s the way I get through there without – and maintain control.” Tr. 24. Aside from
Collett, Sizemore observed several vehicles on the main road which would be used in excess of
seventy-five to one hundred times a day. Tr. 23. At that time, Collett issued the citation at issue
because Respondent is required to maintain the roadway so that a person could have full control
of his/her vehicle. Tr. 24-25.
Sizemore determined that the condition was reasonably likely to result in a reasonably
serious injury and S&S because, according to him, the roadway was very slick, and there was no
2

The findings of fact are based on the record as a whole and my careful observation of
the witnesses during their testimony. In resolving any conflicts in the testimony, I have taken
into consideration the interests of the witnesses, or lack thereof, and consistencies, or
inconsistencies, in each witness’s testimony and between the testimonies of the witnesses. In
evaluating the testimony of each witness, I have also relied on his demeanor. Any failure to
provide detail as to each witness’s testimony is not to be deemed a failure on my part to have
fully considered it. The fact that some evidence is not discussed does not indicate that it was not
considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)(administrative law judge is not
required to discuss all evidence and failure to cite specific evidence does not mean it was not
considered).
3

According to Sizemore, a back-dump is an articulating truck used to haul materials. It
appears that this refers to an articulated hauler, which is a heavy duty dump truck composed of
two basic units: the front section called the tractor and the rear section called the dump body. It
is typically used on rough terrain.

36 FMSHRC Page 746

control of a vehicle in this area. Tr. 25. He further testified that there was no berm on the outer
bank of the road, a fact confirmed by Collett. Tr. 26, 49. The haul road would likely be traveled
ten or more times a day. Tr. 26. He theorized that a vehicle veering off the road was likely to
result in broken bones or lacerations, which are lost workdays or restricted duty type injuries.
Tr. 26. He believed that the condition was the result of Respondent’s moderate negligence
because the condition was in plain view, even to the casual observer. Tr. 25. Further, Sizemore
testified that the gravel was located a few hundred yards from the cited area, and all of the
equipment was at the preparation plant ready to be used. Tr. 36-38.
At the same time, Sizemore issued an imminent danger order under Section 107(a) of the
Act because he believed that an injury would occur before the condition could be corrected.4 Tr.
27-28. His concerns were that the roadway was very slick, a tandem coal truck was traveling
down the roadway, the berm was insufficient or nonexistent in a crucial area, and an accident
could occur if travel was allowed to continue. Tr. 27-28. For this reason, Sizemore stopped the
truck that was actively working and asked the driver, Hershel Collett (“Collett”) to park above
the slick area. Tr. 29. The citation, as well as the imminent danger order, were terminated when
the mud was removed, gravel was laid and the berm was constructed. Tr. 29-30. Plant Manger
Wes Thomas worked with Sizemore to abate the condition. Tr. 29, 38-39.
2. Respondent’s Evidence
Hershel Collett hauls coal for Respondent, but is self-employed. Tr. 40-41. On the day
that the citation was issued, he was operating his M800 tandem truck, which can haul
approximately thirty-eight tons of coal at a time. Tr. 41-42. In a typical day, he makes eight to
ten runs hauling coal to the preparation plant from a mine belonging to a different operator. Tr.
42.
When stopped by Sizemore, Collett estimated that he was stopped forty to fifty feet
above the slick area, which he surmised was steeper than the road in question. Tr. 42-43. He did
not recall telling Sizemore that the road was slick and, in fact, testified that he had made one
earlier run and had no problems with sliding. Tr. 43-44. He also stated that he had not noticed
as much mud on the road as Sizemore. Tr. 43. While he testified that there was gravel on the
road, he stated that it had been raining for four or five days and some of the gravel had
“disappeared.” Tr. 43. Sizemore, on the other hand, could not recall whether it had been raining
either on the day that the citation was issued or in the previous days. Tr. 36. Regardless, Collett
stated that he had no trouble hauling coal or slowing down. Tr. 43-44. If he had, Collett said
that he would not have hauled the coal in dangerous conditions and would have alerted
Respondent to the conditions as he had in the past. Tr. 44, 47-48.
In explanation of what Collett said to Sizemore about the brakes, Collett testified that he
does not touch his brakes because the truck is “geared down,” and the cited area of the road is
not particularly steep. Tr. 45, 49. When fully loaded, the truck typically travels at three to four
miles per hour on the road. Tr. 46. He argued that he would not use the brakes even in the best
4

The specific circumstances of the 107(a) order are not at issue here, and I make no
judgment as to its validity. It is only referenced to give perspective to Inspector Sizemore’s
observation of the conditions.

36 FMSHRC Page 747

possible conditions in order to prevent the brakes from getting hot. Tr. 45. According to Collett,
the lower the gear that the truck is in, the less the brakes are used because they become very hot
and would eventually fail. Tr. 45. Further, it was unnecessary for Collett to stop at the bottom
of the hill because he has the right of way and traffic proceeding from the other direction must
stop. Tr. 49. Finally, he added that, the vast majority of the time, he is the only coal truck
operating on the road. Tr. 46. He only asked for help when he was behind. Tr. 46.
3. Contentions of the Parties
The Secretary contends that, regardless of whether the inspector actually observed a
vehicle out of control, Respondent is required to maintain the roadway in a condition allowing
for full control of a vehicle. Because the roadway was slick, traveled in excess of ten times a day
and no berm existed, he states the citation was correctly designated as reasonably likely to result
in a reasonably serious injury and S&S. In support, the Secretary argues that if an accident were
to occur, broken bones and lacerations would be the minimum injury. Finally, although the
inspector did not know how long the condition existed, the Secretary states that the road was in
plain view, and even the most casual observer would see the condition. Therefore, he asserts that
Respondent’s negligence was moderate.
Respondent argues that no evidence was presented to suggest that any of Respondent’s
employees or contract employees failed to maintain full control of a vehicle; therefore, the
citation should be vacated. It states that the presence of ten to fourteen inches of mud on the
roadway and Collett’s failure to use brakes do not substantiate the Secretary’s claims. In the
event that the citation is found to be valid, Respondent states that the violation is not S&S
because the first two prongs of the Mathies test have not been met.
4. Findings of Fact and Conclusions of Law
I find that the Secretary has not proven his case and, therefore, Citation No. 8369111 is
vacated. Sizemore cited Respondent for a violation of 30 C.F.R. § 77.1607(b) which requires
equipment and vehicle operators to maintain full control of vehicles at all times while in motion.
As proof of this, Sizemore conducted his own experiment in which he testified that he lost
control of his own vehicle. He fully admits that he never observed any of Respondent’s
employees on the roadway, but explains that, given the unsafe nature of the road, he did not have
to actually witness a vehicle out of control. I do not, however, agree with this assessment.
The plain language of 30 C.F.R. § 77.1607(b) states that an operator shall have full
control of a vehicle while it is in motion. As further evidence of the regulation’s intent, it is
specifically entitled “Loading and haulage equipment; operation.” 30 C.F.R. §
77.1607(b)(emphasis added). Other than Collett’s truck, which was stopped prior to reaching the
section of the road at issue, Sizemore did not observe a single vehicle operating on the roadway.
At hearing, he testified that his only proof of lack of vehicle control was the operation of his own
Jeep. Allowing MSHA to conduct its own experiments in the absence of any witnesses to prove
the existence of violations is a dangerous course of action. Given that none of Respondent’s
employees were observed having difficulty with vehicle control, I find that the Secretary is
unable to prove his case, and the citation must be vacated.

36 FMSHRC Page 748

To be clear, I am not suggesting that slick roadbeds are not a violation of the regulations;
rather, I find that slick roadbeds are not a violation of this particular standard. In the instant case,
Respondent could have been cited for any of the regulations pertaining to roadway maintenance.
30 C.F.R. § 77.1605(k) requires that berms be provided on elevated roadways. Further, 30
C.F.R. § 77.1605(m) requires, among other things, that roadbeds be maintained in a manner
consistent with the speed allowed and type of haulage done. While the Secretary may have been
able to prove his case under either of these regulations, he did not cite Respondent for these nor
did he request an amendment to the cited regulation. Given all of the information presented and
the testimony at hearing, I am constrained to find that the Secretary did not prove his case.
CITATION NO. 8369121
Citation No. 8369121 was issued under Section 104(d)(1) of the Act on December 16,
2011 at 8:00 a.m. and was also based upon the inspector’s observation of a violation of 30 C.F.R.
§ 77.1607(b).
In his narrative, the inspector found [All errors kept as written]:
The operator has not maintained the entire length of the haul road from the
contract coal mine to the preparation plant. 1 to 4 inches of muddy material was
present along the haul road and equipment including personnel vehicles and coal
truck, were observed hauling on the slick haul road, were not in full control while
the equipment was in motion. At a test speed of 10 miles an hour a personnel
vehicle slide (like a sled) in straight areas and in the curves at different areas of
the haul road. The operator has posted a speed limit of 35 mph. along this road.
Note: This citation was one of the contributing factors that contributed to the
issuance of imminent danger order #8369120 issued on 12-16-2011. therefore no
abatement time was set.
Note: This same type citation (#8369111) and resulting imminent danger order
(#8369109) was issued for this same condition, at as different location, along this
same haul road on 12-08-2011, and was a factor in the consideration of high
negligence classification of this citation.
Note: The operator has engaged in aggravated conduct constituting more than
ordinary negligence in that the operator was aware that the haul road was wet
slick and muddy and that contract employees were traveling this haul road. This
violation is an unwarrantable failure to comply with a mandatory standard.
GX-5.
The inspector noted that the risk of injury or illness was highly likely and S&S in nature.
Id. The injury could reasonably be expected to result in permanently disabling injuries affecting
one person. Id. The negligence was assessed as high, as well as an unwarrantable failure to

36 FMSHRC Page 749

comply with a mandatory standard (“Unwarrantable Failure”). Id. The Citation was terminated
when the operator applied gravel and graded the roadway from the preparation plant to the mine.
Id. The inspector observed that the operators should not be able to maintain control. Id. The
Secretary assessed a penalty of $9,122.00 for the alleged violation.
1. The Secretary’s Evidence
Sizemore testified although the citation was issued to a different mine, the entire road is
three to four miles long and runs from the Chestnut Flats Mine to the Balkan Preparation Plant.
Tr. 53-54. The road is designed to have steep inclines followed by level areas where brakes can
be cooled. Tr. 54. According to Sizemore, the road had one to four inches of mud in spots,
several of which were on inclines. Tr. 54-55. Again, this measurement was taken by with a tape
measure. Tr. 54. The posted speed limit on the haul road was thirty-five miles per hour;
however, Sizemore testified that he slid at a test speed of ten miles per hour. Tr. 55.
Sizemore asserted that the road was wet and muddy, and there was no visible gravel on it.
Tr. 55. When he went around curves in the road, the truck would slide out and he’d have to
employ the “turn-the-wheel-the-same-way” maneuver to get out of the spin. Tr. 55. Collett and
the miners traveling to the A&M Coal Company would use this road every day. Tr. 56. By
Sizemore’s estimate, approximately twenty miners would access it for the day shift, eighteen to
twenty for the second shift and three to five for the third shift. Tr. 56. Further, he observed a
Mack truck hauling thirty to forty tons of coal down the incline. Tr. 56. When discussing the
road with one of Respondent’s employees, Sizemore stated that the outside man told him that he
slid all the way along the road. Tr. 57. The miner also explained that Respondent graveled the
haul road when it was first built, but it had not been touched since that time. Tr. 57.
Based on Sizemore’s observation, he testified that Respondent violated the standard when
it did not maintain the road so that the operator of a vehicle would have full control. Tr. 57. The
three to four miles affected by the condition contained steep inclines and different terrain. Tr.
62. Sizemore believed it was reasonably likely or highly likely that an accident would occur if
the condition was left uncorrected. Tr. 62-63. He asserted that a vehicle traveling over the
embankment or colliding with another vehicle would likely result in broken bones, including the
possibility of the neck or back, or lacerations, which he categorized as permanently disabling
injuries. Tr. 63. Because he only saw one person on the road at the time of issuance, he believed
that only one miner would be affected. Tr. 63.
Sizemore further designated the citation as high negligence and an unwarrantable failure
to comply with a mandatory standard under Section 104(d)(1) of the Act. Tr. 58. He reasoned
that the condition extended for three to four miles. Tr. 58. The preshift examination indicated
that the haul road was slick; therefore, management knew about the condition. Tr. 60, 79; GX-6.
Further, when discussing the issue with General Manager Ted Helton, Sizemore testified that
Helton stated that at $17.00 per ton, he would shut the mine down before he would gravel the
road. Tr. 60-61, 78-79. Finally, he had issued a prior citation and imminent danger order to the
Balkan Mine. Tr. 59, 77.

36 FMSHRC Page 750

Given the conditions, Sizemore also issued a 107(a) imminent danger order to stop travel
on the road. Tr. 64.5 When Sizemore left the mine, he used the roadway, which was in the
process of being graded. Tr. 66. He did not terminate the citation and order at that time,
however, because there was more work that needed to be done. Tr. 66. The citation and order
were terminated later that day when Respondent graded and graveled the road. Tr. 65. Sizemore
received information from an unknown source that it had taken ninety to a hundred truckloads of
gravel to abate the condition. Tr. 79.
When asked at hearing whether employees of A&M Coal Company traveled the road
during the inspection, Sizemore testified that he did not see them. Tr. 68, 71. He stated that only
Collett asked permission to travel the haul road and Sizemore denied his request. Tr. 68-69. He
further explained that in terms of A&M Coal Company employees, he worked with the owner of
the mine, Mark Dotson, and informed him that the road was shut down. Tr. 70. Collett
acknowledged that there was a side road that the miners typically used when entering and exiting
the mine. Tr. 90, 92.
In response to the video taken by Respondent, Sizemore testified that it did not accurately
depict the conditions as they existed. Tr. 113. He explained that the road was graded prior to his
departure on December 16th, so the tire tracks present must have been there from vehicle travel
after it was graded. Tr. 114-115.
2. Respondent’s Evidence
Collett testified that the haul road had been shut down before his arrival that day, but he
entered using it because he did not know that an imminent danger order had been issued. Tr. 8788. While he admitted that it was muddy, he stated that he was not concerned for his safety
while driving. Tr. 87-88. Although there was a side access road, he asserted that he saw miners
entering and exiting the road and believed that Sizemore was still at the mine at that time. Tr.
89. When he was returned to his vehicle by the owner’s son, they used the road and Collett did
not notice anything wrong with it. Tr. 88. While Sizemore could not recall whether it was
raining on that day, Collett testified that it was. Tr. 55, 93.
Respondent’s Safety Coordinator Tracey Creech (“Creech”) testified after receiving
information about the citation and order, he arrived at the mine using the haul road between
8:00-8:30 a.m. Tr. 101. He stated that he drove his two-wheel drive truck and never slid. Tr.
97. In the afternoon, he took video of himself driving the road at approximately twenty to
twenty-five miles per hour. Tr. 100; RX-1. According to Creech, even though there was a lapse
in time, the road looked essentially as it did upon his arrival. Tr. 102. The gravel trucks where
working, but the road had not been graded at that time. Tr. 109. Based on his experience, he did
not believe that emergency vehicles would have any problem accessing the mine if needed. Tr.
103.
Creech stated that it took forty-one loads of gravel to abate the condition, not ninety to
one hundred as asserted by Sizemore. Tr. 97. He further testified that this was not the first time
5

validity.

The imminent danger order is not at issue in this case, and I make no judgment as to its

36 FMSHRC Page 751

that the road had been gravel, even by MSHA’s own records; therefore, the information given to
Sizemore was completely false. Tr. 107-108. He also affirmed Collett’s testimony that Collett
alerted Respondent when the road needed to be graveled for safety reasons. Tr. 106-107. When
he heard about the comments made by Helton to Sizemore, Creech contacted the vice president
of operations who told him to gravel the road and Helton’s comments would be addressed by
management. Tr. 104-105.
3. Contentions of the Parties
The Secretary argues that Respondent has the responsibility to maintain the roadway in a
condition allowing for full control of a vehicle. Observing a vehicle out of control is not a
necessity. The Secretary further states that the video taken by Respondent does not depict the
conditions as they existed and should not be credited. He contends that a vehicle operator was
highly likely to lose control and that broken bones and cuts would be the most likely result of an
accident. Given this, the Secretary argues that the violation was also S&S. Finally, he argues
that Respondent’s negligence was high and the violation was an unwarrantable failure because
the condition was extensive, an imminent danger order had been issued on the road a short time
before, and Respondent had been advised that the road needed work. The Secretary adds that the
inspector had to issue an imminent danger order to prompt Respondent to abate the condition.
Respondent contends that the Secretary failed to provide any demonstrable evidence that
any of its employees or contract employees operated a vehicle that was not in full control;
therefore, the citation should be vacated. It states that even if a violation existed, it was not S&S
because the first two prongs of Mathies were unproven. It further argues that even if the
violation is found to be S&S, there is no evidence to support a designation of unwarrantable
failure. As evidence of this, Respondent points to preshift reports in which the examiner states
that everything was in good shape, but more rain was expected. It asserts that this shows its
good faith belief that the condition of the road was acceptable.
4. Findings of Fact and Conclusions of Law
For the same reasons as above, I find that the Secretary has failed to prove that
Respondent violated 30 C.F.R. § 77.1607(b). Sizemore admitted that he did not observe any
vehicles operating on the roadway and, therefore, did not observe any equipment that was out of
control. Again, I find that the Secretary may have been able to prove a violation of a standard
pertaining to the maintenance of the roadbed itself, but he did not prove that vehicles were
operated without full control.
Although not determinative to the outcome of this case, I would also caution the
Secretary in issuing 104(d) citations based upon, at least in large part, a citation issued to a
different mine. While I understand that the haul road serves two mines owned by the same
operator, Section 104(a) of the Act empowers the Secretary to issue a citation to a mine for a
violation of the Act or its standards. 30 U.S.C. § 814(a)(emphasis added). Nowhere in its
language does it permit MSHA to issue more serious violations to one mine based on the
aggravating circumstances found in another.

36 FMSHRC Page 752

ORDER
It is ORDERED that Citation No. 8369110 remains as issued. It is ORDERED that
Citation Nos. 8369111 and 8369121 are hereby VACATED. It is further ORDERED that Nally
& Hamilton Enterprises, Inc., PAY the Secretary of Labor the sum of $900.00 within 30 days of
the date of this Decision.
/s/ William S. Steele
William S. Steele
Administrative Law Judge
Distribution:
Joseph B. Luckett, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street,
Suite 230, Nashville, TN 37219
Stephen Thomas Hamilton, Jr., Esq., Saltsman & Willett, 212 East Stephen Foster Avenue, P.O.
Box 327, Bardstown, KY 40004
/kmb

36 FMSHRC Page 753

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER, SUITE 290
875 GREENTREE ROAD
PITTSBURGH, PA 15220
TELEPHONE: (412) 920-7240 / FACSIMILE: (412) 928-8689

March 24, 2014
EMERALD COAL RESOURCES, LP,
Contestant,
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent,
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,
v.
EMERALD COAL RESOURCES, LP,
Respondent.

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CONTEST PROCEEDING
Docket No. PENN 2009-383-R
Citation No. 8007661; 03/06/2009
Mine ID 36-05466
Mine: Emerald Mine No. 1

CIVIL PENALTY PROCEEDING
Docket No. PENN 2009-496
A.C. No. 36-05466-183943-02

Mine: Emerald Mine No. 1

SECOND AMENDED DECISION AND ORDER1
Appearances:

Patrick W. Dennison, Esq., & Jason P. Webb, Esq., Jackson Kelly, PLLC,
Pittsburgh, PA for Respondent
Pamela Mucklow, Esq., U.S. Department of Labor, Office of the Solicitor,
Denver, CO for the Secretary

Before:

Judge Steele

STATEMENT OF THE CASE
This proceeding is before me on a petition for civil penalties filed by the Secretary of
Labor, acting through the Mine Safety and Health Administration against Emerald Coal
Resources, LP (hereinafter “Respondent” or “Emerald”) at the Emerald Mine No. 1 pursuant to
sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and
820 (hereinafter “the Mine Act” or “the Act”), the Secretary seeks penalties in the amount of
1

The original decision stated that the assessed penalty for Citation No. 8006753 was
$3,493.00 instead of the correct amount, $3,143.00.

36 FMSHRC Page 754

$12, 265 for two alleged violations of the Secretary’s mandatory safety standards for
underground mines. The Secretary originally charged Respondent with 10 alleged violations.
Four were settled prior to the hearing, three were settled during the hearing, and one was
dismissed as the Respondent agreed to accept the violations as written leaving the remaining two
alleged violations for decision in Docket No. PENN 2009-496. The three citations that were
settled during the hearing were Nos. 8006756, 8006758, and 8006759.2 The terms of the
settlement were set forth in a written motion, which terms were approved by the court. The
parties presented testimony and documentary evidence at the hearing conducted on November
sixth, seventh, and 8th, 2012 in Pittsburgh, PA.
For the reasons set forth below I affirm Citation Nos. 8006753 and 8007661 and find a
non-S&S violation of the latter. I also assess civil penalties of $3,143.00 and $5,000.00
respectively.
STIPULATIONS
The Secretary and Respondent agreed that the following stipulations should be included
in the record:
1. Emerald is an “operator” as defined in §3(d) of the Mine Act, 30 U.S.C. §803(d), at
the coal mine at which the Citations at issue in this proceeding were issued.
2. Operations of Emerald at the coal mine at which the Citations were issued in this
proceeding are subject to the jurisdiction of the Mine Act.
3. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designed Administrative Law Judges pursuant to
Sections 105 and 113 of the Mine Act, 30 U.S.C. §§ 815 and 823.
4. The individuals who signatures appear in Block 22 of the Citations at issue in this
proceeding were acting in their official capacity and as authorized representatives of
the Secretary of Labor when the Citations were issued.
5. True copies of the Citations at issue in this proceeding were served on Emerald as
required by the Mine Act.
6. Emerald demonstrated good faith in the abatement of the Citations.
7. The penalties that have been proposed will not affect Emerald’s ability to continue in
business.

2

A Decision Approving Partial Settlement for these eight settled citations was issued
separately.

36 FMSHRC Page 755

THE REMAINING CITED VIOLATIONS
1. Citation No. 8007661
This 104(a) citation was issued on March 6, 2009 at 5:53 p.m. and was based upon the
inspector’s observation of a violation of 30 C.F.R. §77.200. This safety standard states:
All mine structures, enclosures, or other facilities (including custom coal
preparation) shall be maintained in good repair to prevent accidents and injuries to
employees.
In his narrative, the inspector found:
Three structural support columns located on the sixth floor of the prep plant were
not being maintained in good repair. The second column in the second row from
the MCC room showed approximately 30 percent width loss on the creek side
flange were (sic) a seventh floor beam connects to it. The fourth column in the
same row was found to have 7 areas of width reduction ranging from
approximately 30 to 50 percent. The fifth column in the same row was found to
have approximately 30 to 50 percent reduction on all four sides and two holes
ranging from ½ inch to 1 inch. 2 previous violations of this standard in the past 2
year.
(Government Exhibit 1).3
The inspector noted that the risk of injury or illness for this violation was “reasonably
likely,” “fatal,” “S&S,” and would have affected 10 persons. He further noted that Respondent
exhibited “moderate negligence.” The proposed penalty for this citation was $8,209.00. The
citation was extended on four occasions and was terminated on April 21, 2009 when the repairs
were completed on the three cited columns.4 The inspector also issued a 107(a) imminent danger
order which was vacated or terminated following an inspection by an MSHA civil engineer.
ISSUES
Did Respondent violate 30 C.F.R. §77.200 and, if so, were these violations significant
and substantial? What was the degree of gravity and negligence?

3

Hereinafter Government Exhibits will be cited as “GX” followed by the number and
Respondent’s Exhibits will be cited as “RX” followed by the number.
4

The inspector also noted that, “[t]his citation is a contributing factor to the issuance of
the 107(a) Order No. 8007662.” This imminent danger Order is no longer in contest, but will be
discussed as necessary in this decision.
36 FMSHRC Page 756

THE SECRETARY’S EVIDENCE
1. Testimony of Tom McCort
Mr. McCort is an inspector trainee for MSHA having just returned to MSHA after
approximately four years as a surface and mine inspector. His second stint with MSHA began
approximately one month before this hearing. His private sector experience includes
approximately three and a half years doing shaft and slope construction maintenance and
underground maintenance and repair. Additionally, Mr. McCort worked for Local 549 of the
Ironworkers out of Wheeling for approximately three to three and a half years doing construction
and maintenance of steel structure, maintenance on building reinforcing bars and generally
anything related to steel and iron. (Tr. 33-37).
Inspector McCort issued this citation because he found some structural columns on the
sixth floor that had some severe thinning and holes in them and a general thinning of some of the
structural members that he examined. (Tr. 40). The building examined was a prep plant which
is a building that is used to clean coal. This prep plant was constructed of steel members,
concrete floors, concrete floor beams, and sheeting for siding. He believed the plant had 13
levels. (Tr. 40). The primary focus of the examination was the sixth floor of the prep plant and
McCort was accompanied by Floyd Campbell, a union representative, and Tim Drone who the
inspector believes was the maintenance manager of the plant at the time. (Tr. 41). Mr. McCort
went to the plant on March 6, 2009 in response to a 103(g) hazard complaint.5 (Tr. 42).
The examination of columns on the sixth floor eventually focused on three columns and
those columns were iron and steel. They were located in the second row and were identified by
McCort as the second, fourth, and fifth columns from the plant control room on the creek side of
the plant. (GX 3). (Tr. 43-46). In examining the columns, McCort used a hammer to clean off
the columns and also to sound the columns.6 In one particular instance the column was so thin
that the hammer went through it. (Tr. 46). The examination of the three columns continued with
the taking of measurements. With the exception of column five, anyplace that McCort saw
noticeable thinning of the columns, he measured the thickest part of the column and the thinnest
part of the column to determine how much structure was lost on the column. (Tr. 47).
5

A 103(g) hazard complaint enables miners to make complaints on safety or health
hazards when there are reasonable grounds to believe that a violation of the Act or a mandatory
health or safety standard exists. This section of the Act creates a right to an immediate
inspection by the Secretary. 30 U.S.C. §813(g)(1). In this case there were five complaints about
conditions on the sixth floor. All five were investigated and four resulted in negative findings.
One complaint resulted in a positive finding which noted that seven contractor employees were
conducting repairs. (Tr. 109-111). The positive finding concerned three structural support
columns located on the sixth floor of the prep plant which were determined to be not maintained
in good repair. (Respondent Exhibit 11).
6

Sounding the columns is a way to tell if a column is solid or if it is thinning.

36 FMSHRC Page 757

On column 2 of row 2, McCort saw section loss on the flange at the top of the column as
well as a lot of severe rust. Measurements were taken showing that the flange measured 3/8 of
an inch at the bottom and 1/4 of an inch at the connection point. (Tr. 50-51). The quarter inch
measurement was taken because it was visibly thinner and appeared to be the thinnest portion in
that area. The 3/8 measurement was taken because it appeared to be the thickest part of the
column. The amount of loss to the flange at the top of this column was approximately 30%. (Tr.
52).
In the fourth column, McCort observed multiple spots that indicated flange thinning and
web thinning. He also sounded this column with a hammer and could hear this difference
indicating thinning. Again, McCort took measurements of the thickest and thinnest parts of this
column. The thickest part measured 5/8 of an inch and the thinnest part 1/8 of an inch thick,
which meant that the measured flange loss was half an inch. McCort also testified from his notes
that column five showed significant structural loss in five places and severe structural loss on the
hillside above the hub column. (Tr. 53-57).
On the fifth column of row two, McCort observed conditions similar to column four, but
there were holes in the base of this column and exceedingly severe web and flange thinning. He
observed a 1 ½ inch hole and a ½ inch hole in the web. The measurement of 1/4 inch to 3/8 of
an inch would be compared with the 5/8 of an inch thickness which McCort found upon his
observation and recollection from earlier measurement. (Tr. 58-60).
If a flange is thinner that it originally was then it is coming out of design specs and
indicates weakness in that column. (Tr. 61). Because water all over the sixth floor would have
caused the deterioration of the steel columns following his examination of March 6, 2009,
McCort issued an imminent danger order.7
On the day of his inspection the third column of the row was under construction and
being repaired. McCort noted that at the top of that repair that a hole in the webbing could be
seen. That hole was 12-14 long and 2-3 inches wide. (Tr. 64).
Later that afternoon following completion of the examination of the sixth floor, McCort
requested that an MSHA engineer evaluate the structure. Bob Newhouse, McCort’s supervisor,
requested the engineer, Jarrod Durig. Durig, appeared and sounded columns, took
measurements, and did other things with which McCort was not familiar. Durig concluded that
he did not believe there was an imminent danger but that the columns did need repair. (Tr. 6970).
The hazards created by the condition of the prep plant, according to McCort, were that
should the columns fail there would be falling material, falling miners, and multiple injuries,
including fatalities. Also, in the event of column failure, the seventh floor could collapse on the
sixth floor involving potential injuries to miners on the seventh floor. (Tr. 71). In explaining
7

The order was based on his opinion and a few miners who said they had noticed
excessive plant shaking and vibration not noticed before. (Tr. 62-65).

36 FMSHRC Page 758

why column failure and partial plant collapse was reasonably likely, McCort opined that the
specific columns cited were all in the same column line, on the same plane. (Tr. 74-75).
At the request of McCort, an MHSA engineer, Michael Marawski visited the plant in
August, 2008, examined the plant and prepared a written report which was admitted as GX 26.
Significant section loss was observed in the flanges on the upper column at the common splice
connection in the column adjacent to cyclone A-58 – Repairs to the column splice at Cyclone A-5
along with any other column splices on the sixth floor that were in a similar condition were
recommended. (GX 26). McCort never saw the plans to repair the columns in the sixth floor,
but the plans were explained to him by Tim Drone, maintenance manager of Emerald and
McCort saw repair work being implemented. (Tr. 105-106).
2. Testimony of Jarrod Durig
Mr. Durig is a supervisory civil engineer with the Pittsburgh Safety and Health
Technology center, or MSHA technical support group, and is the chief of the geotechnical
branch overseeing the work of seven other engineers. Included in the types of duties he performs
are structural assessments of preparation plants. Mr. Durig has worked for MSHA from 19952000 and from 2003 to the present. He has a bachelor’s degree in civil engineering from West
Virginia University and a master’s degree in civil engineering from the University of Pittsburgh.
He is licensed as a professional engineer in the Commonwealth of Pennsylvania. (Tr. 124-126).
Mr. Durig was called to the Emerald prep plant on March 6, 2009 to provide an
assessment of conditions there and to make a recommendation regarding an imminent danger
order. He was asked to look at three columns on the sixth floor and looked at a fourth column
after inspecting the first three. They were designated columns 2B, 2C, and 2D. Durig later
looked at 3D.9 (see GX 5).

8

This column is also referred to as the third column in the second row. (Tr. 85).

9

The column Durig designated as 2B is McCort’s No. 3, 2C is McCort’s No. 4, and 2D is
McCort’s No. 5. (See Tr. 20 opening statement by counsel for the Secretary). However, this
statement of explanation does not conform to the citation. The sixth floor of the prep plant was
examined by a myriad of individuals who employed their own methods of identifying the
columns which were the subjects of this citation. The inspector trainee for MSHA, Tom McCort,
identified the columns as being in the second row from the raw coal side, and he numbered the
columns as the second, third, fourth, and fifth columns from the creek side. (Tr. 45). The
MSHA civil engineer, Jarrod During, identified the columns as 2B, 2C, and 2D. The columns
cited in the citation are actually columns 2, 4, and 5 in McCort’s version. Yet another numbering
system is employed by Emerald and identified as row H that which is McCort’s row 2, and listed
the columns as 12H, 13H, and 14H. McCort’s column 2 is Durig’s 2B and Emerald’s 12H;
McCort’s column 4 is Durig’s 2C and Emerald’s 13H; and McCort’s column 5 is Durig’s 2D and
Emerald’s 14H as represented by counsel for the Secretary. (Tr. 269-270). There is a slight
variation provided by counsel for Respondent. (see Amended Post-Hearing Brief at p. 3).

36 FMSHRC Page 759

In his examination of the columns, Durig performed a visual examination, used a
chipping hammer for cleaning and sounding purposes, and used a tape measure to try to size the
columns and also to measure the thickness of the flanges of the columns. After completing the
evaluation he felt that the prep plant was not in imminent danger of collapse. (Tr. 135-136).
Durig also felt that the prep plant was not in good repair based on the columns that he evaluated.
(Tr. 136). Column 2D was in the process of repair. However, the area above the repair was in
very poor shape due to substantial holes in the web along with thinning of the flanges in the same
area. Durig would characterize column 2D as failed even with the repair work that was done.
(Tr. 139-150).
Insofar as column 2B is concerned, Durig did not see any visible deformation but did
recognize thinning of the flanges. He took measurements of that thinning to the bottom of the
column. The flange thickness at 6 inches above the floor was between 3/8 of an inch and half an
inch thick. Measurements were also taken of the column itself so that by consulting a steel
design manual he could determine that the size of the column at the time it was constructed or at
the time it was put in place. (Tr. 153). By consulting the manual (GX 13) Durig determined that
Column 2B had over a 50% loss in thickness for the flange. (Tr. 161). Durig took four
measurements and all fell within this range, except where those locations that measured 3/8 of
inch would have indicated over 60% flange loss at that location.
Column 2C was also examined that day and found to be not in good repair due to the
thinning of the flange and the condition of the bottom of the column. Again, by consulting
manual and his measurements, Durig determined that the percentage loss in thickness of the
flanges along the bottom of column 2C would be approaching 40%. (Tr. 164-166)
RESPONDENT’S EVIDENCE
1. Testimony of Ralph Layfield
Mr. Layfield is an operational manager with Alpha Natural Resources and has been at
Emerald for 14 years. Prior to Emerald, Layfield was employed for 22 years by Industrial
Resources of Fairmont, West Virginia as a field manager and construction manager. His duties
as a construction manager included the building of preparation cleaning plants, coal cleaning
plants, rebuilding plants, and operations related with coal facilities. As such, he has
approximately 35 years experience with preparation plants. (Tr. 222-223).
Mr. Layfield was part of the inspection party that eventually resulted in the issuance of
citation No. 8007661. He does not remember seeing any holes in the structure or the beams that
McCort was inspecting. He did not see any problems or issues with the structure. (Tr. 225-226).
2. Testimony of Douglas Montgomery
Mr. Montgomery is employed at Emerald as a processing engineer and has been
employed there since April 2003. Before that he worked at Cumberland Coal, Peabody Coal
Company, American Electric Power, Southern Ohio Coal Company, U.S. Steel, and American
Bridge. Over the years his various capacities have included being a foreman, engineer, plant

36 FMSHRC Page 760

manager, construction estimator, design draftsman, and detail draftsman. Mr. Montgomery has a
master’s degree in metal process engineering from West Virginia University, a bachelor’s degree
in mining engineering from the University of Pittsburgh, and an associate’s degree in mechanical
engineering from Penn State. (Tr. 230-232).
By the time of the inspections which resulted in this citation, Emerald was in the process
of repairing columns on the sixth floor.10 Lincoln Contracting, whose field man was Mike
Yoder, was working with Emerald. (Tr. 235-236). Several exhibits were offered and accepted to
show that repairs were underway: RX-6 – materials used; RX-7 – Time sheets; RX-8 – invoice
from Lincoln Contracting for work performed; RX-4 – Floor plan; RX-5 – time and materials
invoice; summary of time sheets, and a change order; RX-9 – 2009 log book for completed
repairs.
3. Testimony of John Leach
John Leach is a project manager, estimator, and engineer for Lone Pine Construction, a
construction company that does mine work. He holds a professional engineering license from
the Commonwealth of Pennsylvania. On numerous occasions, Emerald Mine has called Lone
Pine to do several projects, including prep plant renovations. Lone Pine investigates, prepares an
estimate, submits a bid, and is sometimes awarded the job and sometimes not. (Tr. 270-273).
Mr. Leach believed that this prep plant was one of the better cleaning facilities that he has seen.
(Tr. 273).
On the day the citation was issued, Lone Pine was performing work at Emerald Mine and
Mr. Leach was asked to evaluate three columns on the sixth floor of the pre plant, and to prepare
a report. He did not believe that the structure was in any imminent danger of collapse. (Tr. 274279). Column 14H (2D) was under construction at the time Leach performed his examination.
The repairs involved adding bent channel plates to form the inside of the flange as well as the
web on both sides of the column and flange plates were added on the outside of the flange of the
column. Mr. Leach believed that this was an exceptional way to repair that column and the load
capacity of that column probably doubled or tripled by the way construction was performed. (Tr.
281-283).
On March 6, 2009, Leach observed a quarter-sized hole in the center of the web on
column 12H (2b) and that hole could have been put there for a purpose. While it was possible
that the hole was there because it was a loss of thickness of the web, it was not likely. (Tr. 297298).
4. Testimony of William Schifko
Mr. Schifko works for Emerald Mine, Alpha Resources and began in May or June of
1978. He is currently the manager of compliance. This position involves educating employees
10

Through this witness we learned that a third means of identifying rows and columns
was employed. Row H is McCort’s row 2.

36 FMSHRC Page 761

about new laws and new regulations for compliance purposes and also education about safety
and accident prevention. (Tr. 305).
Mr. Schifko does not believe there was a violation of 30 C.F.R. §77.200 because hitting
the columns with a small sledge hammer did not produce any problems and there was no danger
of an imminent collapse. Money is budgeted for maintenance and examination by the
professionals. (Tr. 319-320). Mr. Schifko fundamentally disagreed with the degrees of gravity
and negligence and thought there were considerable mitigating factors which should have
affected MSHA’s degree of negligence. (Tr. 324).
CONTENTIONS OF THE PARTIES
1. The Secretary’s Contentions
a. Due to the deteriorated columns on the sixth Floor, Emerald failed to maintain
the prep plant in good repair and thus violated 30 C.F.R. §77.200
b. In reaching this conclusion the inspector visually inspected the columns, did
sounding tests with a hammer, and performed measurements with a tape
measure to determine the extent of column, flange, and web thinning.
c. Additional confirmation of thinning was provided by an MSHA engineer who
contrasted the present condition of the columns with their original
construction or installation.
d. While there were repairs on the inspector’s third column, such repairs had not
been completed and the column was not in good repair.
e. The percentage of thinning indicates a column’s loss of ability to support its
intended weight.
f. The S&S designation was appropriate because the evidence established that
the four core components of S&S had been met, particularly the reasonable
likelihood of column collapse resulting in injuries of a reasonably serious
nature, and Emerald did not adequately rebut the S&S allegation.
g. The degree of negligence of Emerald was high with no mitigating
circumstances.
2. Respondent’s Contentions
a. There was no violation of 30 C.F.R. §77.200 because there was no evidence
of disrepair or that the condition presented a hazard. The conditions of the
sixth floor of the plant were a result of normal wear of steel structures and
posed no hazard.

36 FMSHRC Page 762

b. Emerald was in the process of retrofitting columns on the sixth floor with one
column having been retrofitted with other columns having been identified as
needing attention, and professional contractors and engineers had been hired
to design and complete the work.
c. The inspector’s measurements of the three columns identified in the citation
were unreliable.
d. This case focuses on the conditions on the sixth floor. However, substantial
amount of weight had been removed on the seventh floor directly above the
area in question and the removed weight was approximately 1,180 tons, less
than what had originally existed. Also, smaller columns were used from
above the sixth floor because of reduced load. Thus the Secretary fails on the
hazard arguments presented.
e. The S&S designation is inappropriate as the evidence does not establish a
hazard, or even meet the test of a reasonable likelihood of an event in which
an injury could occur, and reasonable likelihood of injury should be made
assuming continued mining operations.
f. There is no evidence that Emerald was in any way negligent or aware that the
condition of the columns on the sixth floor posed a hazard and substantial
mitigating circumstances existed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Validity
30 C.F.R. §77.200 requires all mine facilities to be maintained in good repair to prevent
accidents and injuries to employees. The evidence in its totality requires a conclusion that the
columns on the sixth floor were not being maintained in good repair. Measurements, soundings,
and consultation with manuals all confirmed the visual observations of both Tom McCort, the
inspector, and Jarrod Durig, a professional engineer, that significant thinning had taken place and
in such percentages to indicate that the prep plant was not in good repair.
Documentary evidence also leads to that conclusion. For example, Respondent’s Exhibit
11, a 103(g) hazard complaint, states that there were positive findings for the cited areas in that
three structural support items were not being maintained in good repair. Also, GX 15, a report
prepared by Durig, who was called to evaluate the efficacy of an imminent danger order, noted
that the columns in question displayed extensive corrosion, delaminations, and section loss and
recommended that they be retrofitted or replaced. The Secretary has established by a
preponderance of the evidence that Respondent violated safety standard 30 C.F.R. §77.200.

36 FMSHRC Page 763

2. Gravity and S&S Discussion
With respect to gravity, as noted above, the inspector felt that the risk of injury or illness
for this violation was “reasonably likely,” “fatal,” and would have affected 10 persons. However,
I credit the evidence presented by Respondent that showed that the possibility of injury from this
condition was unlikely. Three engineers stated that there was no threat of immediate collapse
and, further, that weight had been removed from the seventh floor, limiting the possibility of
collapse.11
More importantly, the burden of proving the likelihood of injury was on the Secretary. I
do not believe that the incomplete and contradictory evidence regarding the likelihood of
collapse provided by the Secretary was sufficient to show that the risk of injury was anything
more than “Unlikely.” For example, Durig testified that he believed that collapse would occur if
2B, 2C, and 3D were allowed to deteriorate to the condition seen at the top of 2D. (Tr. 214).
However, he did not testify that those three columns definitely, or even probably, would
deteriorate in the same way as 2D. McCort testified that the cited conditions were reasonably
likely to result in structural failure due to the fact that the specific columns cited were all in the
same column line and the thinning and damage were all in the same plane of the column. (Tr.
74). However, he also believed the columns were in imminent danger of collapse, a conclusion
that was not only refuted by Respondent’s witnesses but also by Durig, the MSHA civil
engineer. (Tr. 117, 135-136). Therefore, I believe that the gravity was more accurately described
as possible but “Unlikely.”
However, given the serious danger posed by the collapse of a building, I find that if the
unlikely event were to occur, the injuries could be fatal.
In order to establish S&S, the Secretary must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard 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).
With respect to the first factor, it has already been established that there was a violation
of a mandatory safety standard. As noted above, Respondent failed to maintain the prep plant in
good repair when it allowed three structural support columns to deteriorate.
While the evidence presented by the two witnesses for the Secretary (inspector trainee
McCort and civil engineer Durig) established the violation of the safety standard, the S&S
requirement that the violation contributed to a hazard has been judged by me and found wanting.
Therefore, the Secretary has failed to establish the second factor of Mathies.
11

Respondent also argued that it was in the process of retrofitting the conditions to
prevent further deterioration.

36 FMSHRC Page 764

The evidence presented by the Secretary does not show a realistic hazard existed at the
time of the citation. Further, the evidence shows that no hazard would be contributed to in this
case because, even before this citation was issued, Respondent had begun repairs on the
columns. Respondent’s ability to present evidence in defense of the charge of S&S is not a new
and novel development in Commission jurisprudence. For example, in Secretary v.
Consolidation Coal Co., 5 FMSHRC 890, 899 (June 1986), the Commission held that, given the
legislative history of the mine Act a presumption of S&S existed when excessive respirable dust
exceeded the minimums established by 30 C.F.R. §70.100(a). However, the Commission further
held that the presumption of S&S may be rebutted by the operator’s showing that miners were
not exposed to the hazard of excessive dust through the use of personal protective equipment. In
essence, the Commission held that even if there is a presumption of S&S, the details of the
specific situation, including preventative measures taken, must be considered. In Consolidation
Coal, the Commission found S&S was because the operator could not rebut the presumption.
Here, however, exposure to a hazard was unlikely because Respondent had already taken
preventative measure; specifically it had begun repairs of the cited columns.
In U.S. Steel Mining Co., 7 FMSHRC 1135, 1130 (Aug. 1985) the Commission held that
S&S must be resolved in terms of 1) the circumstances as they existed at the time the violation
was cited and 2) as they might have existed had normal mining operations continued. Here, as
has been shown, on the day Citation No. 8007661 was issued, repairs were underway on one
column and planned for the others. Thus, it was not the citation that triggered the repairs and, at
the time of the citations, Respondent was already eliminating the possibility of a future hazard.
Therefore, the condition was unlikely to lead to any hazard.
Even the hazard suggested by the Secretary shows that it was unlikely at the time of the
citation. For example, Inspector McCourt couched his language regarding column failure and its
effect on the seventh floor in terms, “could collapse on the sixth floor,” and in response to a
question of “what might happen” if any of the columns failed the answer was, “it could
potentially be a domino effect.” (emphasis added) (Tr. 71). McCort did testify that it was
reasonably likely that a portion of at least some of the columns would fail and a portion of the
prep plan would collapse. (Tr. 74). It was clear that the dangers McCort discussed did not
consider repairs already underway at the time of the citation. However, McCort was aware of
these actions as he characterized the negligence as moderate (or the borderline of high) due to the
implementation of a repair schedule and the fact that what he found was not plain to the eye.
(Tr. 86-87). Further, in extending the original termination date, Investigator McCort noted that
the “operator has a plan in place to repair all of the columns on the sixth floor and evidently has
7 contractor employees conducting the repairs.”
In a report submitted by civil engineer Durig dated April 30, 2009, and introduced and
accepted as GX 15, Durig’s focus was to evaluate the imminent danger order which he vacated
or terminated (he was not sure of the requirements of each). (Tr. 177). But his testimony is
related to the S&S issue. In response to the court’s question of what could happen, Mr. Durig
answered “…ultimately a structure failure,” and “there could be tripping, a fall hazard in the
location.” (Tr. 208). Durig further testified that unless conditions were improved, unless a
repair was done, it would collapse. And if columns 2B, 2C, and 3D had been allowed to
deteriorate to the degree 2D had been allowed to deteriorate it was reasonably likely that over a

36 FMSHRC Page 765

period of time there would have been some kind of failure. (Tr. 215). However, the reality here
is that the cited columns had not been allowed to deteriorate in such a way and were in the
process of repair even before the citations were written. Durig stated that “the retrofit that was
witnessed on column 2D appeared to be adequate in restoring a sufficient amount of steel to
transfer the applied loads through the Column.” (GX 15)
As the Secretary has failed to establish that the condition contributed to a hazard given
the repair work already in progress, I do not deem it necessary to consider the third or fourth
Mathies factors. This citation was not S&S.
3. Negligence
Negligence “is conduct, either by commission or omission, which falls below a standard
of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. §
100.3(d). “A mine operator is required to be on the alert for conditions and practices in the mine
that affect the safety or health of miners and to take steps necessary to correct or prevent
hazardous conditions or practices.” Id. Low negligence exists when “[t]he operator knew or
should have known of the violative condition or practice, but there are considerable mitigating
circumstances.” Id. Moderate negligence is when “[t]he operator knew or should have known of
the violative condition or practice, but there are mitigating circumstances.” Id. High negligence
exists when “[t]he operator knew or should have known of the violative condition or practice,
and there are no mitigating circumstances.” Id. See also Brody Mining, LLC, 2011 WL 2745785
(2011)(ALJ). Finally, an operator exhibits reckless disregard where it displays “conduct which
exhibits the absence of the slightest degree of care.” 30 C.F.R. § 100.3(d). Mitigating
circumstances may include, but are not limited to, actions taken by the operator to prevent or
correct hazardous conditions or practices. Id.
In this case, Respondent knew or should have known that it violated C.F.R. §77.200.
Respondent was under a continuing obligation to examine working areas of the prep plant and
should have seen the deteriorating columns. It could not have been particularly difficult to see
that the columns had deteriorated to the point that a hammer could drive through the metal.
Furthermore, on September 25, 2008, MSHA engineer Murawski issued a report that found
serious structural problems with the columns and Emerald did not adequately correct the
conditions before the inspection at issue here. Respondent suggest that this report did not place
it on notice of the conditions because the report dealt with splice connections, not flange thinning
or holes in webbing. I do not find that argument to be particularly compelling. The report
indicated to Respondent that care and attention was needed for the supports on the sixth floor.
The Secretary claimed in his brief that there were no mitigating circumstances in this
instance. However, this position is in direct contradiction to the Inspector’s testimony. The
Secretary acknowledged that McCort found Respondent guilty of “between” moderate and high
negligence, but stated the evidence suggested it was high. However, with respect to negligence,
I found the Inspector’s testimony to be credible, including his testimony regarding mitigating
circumstances. Specifically, McCort testified that Respondent had implemented a repair
schedule and that the conditions were not apparent to the naked eye. As a result of these

36 FMSHRC Page 766

mitigating circumstances, I cannot find high negligence. With that noted, I would not
characterize these mitigating circumstances as “considerable.” Therefore, I find that Respondent
exhibited Moderate Negligence.
4. Penalty
Under the assessment regulations described in 30 C.F.R. §100, the Secretary proposed a
penalty of $8,209 for Citation No. 8007661. While the Secretary’s proposal was duly
considered, under 30 U.S.C. §820(i), the power to assess a penalty is vested with the
Commission. That law also dictates several factors be considered before an assessment is made.
I will not evaluate each of those factors in turn with respect to penalty for Citation No. 8007661:
a. The operator’s history of previous violations – Respondent was twice cited
under Section 77.200 in the past two years.
b. The appropriateness of the penalty compared to the size of the Operator’s
business – Emerald Mine No. 1 produces 6,343,350 tons of coal annually and
Respondent produces 69,624,256 tons of coal annually in all its operations.
According to MSHA’s penalty assessment guidelines this gives Emerald Mine
No. 1 15 “mine size points” out of a possible 15 and Respondent 10
“controller size points” out of a possible 10. see 30 CFR § 100.3(b). Thus,
Respondent is a very large operator with a very large mine.
c. Whether the Operator was negligent – as previously shown, the operator
exhibited moderate negligence.
d. The effect on the Operator’s ability to remain in business – the parties have
stipulated that the citations at issue here would not affect Respondent’s ability
to remain in business.
e. The gravity of the violation – as previously shown, this violation, given the
repair work, is unlikely to cause injury, but if it did it could result in
permanently disabling or even fatal injuries to ten persons.
f. The demonstrated good-faith of the person charged in attempting to achieve
rapid compliance after notification of a violation – The evidence shows the
condition was rapidly abated in good faith and this was so stipulated.
As I have decided to modify the gravity of this citation from “Reasonably Likely” and
“S&S” to “Unlikely” and “Non-S&S,” I believe that it is necessary to also reduce the proposed
penalty. Considering all of the factors listed above, Respondent is ordered to pay $5,000.00 with
respect to this citation.

36 FMSHRC Page 767

CITATION NO. 8006753
This 104(a) citation was issued on March 9, 2009 at 9:15 p.m. and was based upon the
inspector’s observation of a violation of 30 C.F.R. §75.1714-7(a). This safety standard states:
(a) Availability. A mine operator shall provide an MSHA-approved, handheld,
multi-gas detector that can measure methane, oxygen, and carbon monoxide to
each group of underground miners and to each person who works alone, such as
pumpers, examiners, and outby miners.
In his narrative, the inspector found:
The mine operator failed to provide an MSHA-approved, handheld, multi-gas
detector that could measure methane, oxygen, and carbon monoxide to each group
of underground miners and to each miner who works alone. Four miners were
observed working in C-1 (032-0 MMU) number 2 entry, 184’ inby the longwall
face without a multi-gas detector. The longwall was operating at the time of my
inspection.
(GX 19). The inspector noted that the risk of injury or illness for this violation was reasonably
likely, the injury/illness could reasonably be expected to be fatal, the violation was significant
and substantial, and it would affected four miners. Negligence was assessed as moderate. The
proposed penalty for this citation was $3,143.00.
This citation was terminated on March 9, 2009 at 9:30 a.m. as a representative of the
miners was provided with a multi-gas detector for this group of contractors.
ISSUES
Did Respondent violate 30 C.F.R. §75.1714-7(a) and, if so, were these violations
significant and substantial? What was the degree of gravity and negligence?
THE SECRETARY’S EVIDENCE
1. Testimony of Charles Reidmann
Reidmann is an underground coal mine inspector employed by MSHA for the past seven
years. (Tr. 351). He had over 30 years of experience in coal mining before joining MHSA. (Tr.
351-354).
On the day citations were issued, Reidmann saw four miners working on the No. 2 Entry
of the C-1 Longwall. Those miners were employed by High Tech, a contractor that conducted
foreman work at Emerald Mine. (Tr. 359-360). Inspector Reidman spoke to the miners who
were there to install pumpable supports. They were on the day shift, which began at 8 a.m. An
MSHA-approved multi-gas detector was not provided. Inspector Reidmann was told that they
usually have a person who traveled with them as an escort but no escort was provided that day.

36 FMSHRC Page 768

(Tr. 360). When questioned, the miners were located at the No. 2 Entry inby the long wall face.
A canvas check was up and the miners were in there about a block, 180 to 184 feet. (Tr. 361).
The hazard that the cited standard was intended to prevent was to protect miners in case
of fire or to warn miners in the event of methane or low oxygen. (Tr. 361). A multi-gas detector
protects miners who are in the presence of low oxygen, carbon monoxide, or methane. When
within a certain range, a light will appear and an audible alarm will sound. (Tr. 361). The
miners would know to come out of the area. Oxygen, carbon monoxide, and methane are
odorless. Exposure to low oxygen and carbon monoxide results in the danger of loss of
consciousness. The risk provided by the presence of methane is an explosive mix. (Tr. 361363).
The likelihood of a methane explosion in the mine could have been reasonably likely as
Emerald No 1 mine is on a 5-day methane spot and liberates over a million cubic feet of methane
in 24 hours. Emerald No. 1 is a gassy mine. Face to face ignitions have occurred before on the
longwall. The miners would not have been safe in their location if there had been an explosion
at the longwall face, where the methane ignition would have been. The methane ignition could
also have been at the head gate. (Tr. 367-368).
Inspector Reidmann further testified in cross-examination that not everyone needs to
wear a multi-gas detector. (Tr. 374). Anyone working alone would need a multi-gas detector,
but the term “alone” is not defined. Reidmann was instructed in MSHA training that “alone”
means “by yourself.”12
Production was occurring on the longwall face and 5 or 6 miners were on the longwall
face. There was also a headgate operator who works on the headgate side where the curtain is
located. Inspector Reidmann did not check with anyone to see how many had a multi-gas
detector. (Tr. 381).
Respondent introduced, through Reidmann, Respondent’s Exhibit 22, which were the
field notes Reidmann produced stating that the on the day of the inspection and citation the
methane reading was 0, with 20.8% oxygen and that these were good readings. (Tr. 383).
However, on re-direct examination, Reidmann testified that the presence of methane at the face
or longwall can change in minutes. (Tr. 385). If a person on the longwall had a multi-gas
detector that had alarmed, it could not have been heard by the four contract miners. (Tr. 394).
RESPONDENT’S EVIDENCE
1. Testimony of Gary Bochna
Gary Bochna is employed by Emerald Coal Resources as a senior safety representative
and has held that position for 32 years. (Tr. 400).
12

“alone.”

The four miners here were working together, none was by himself or in any way

36 FMSHRC Page 769

Bochna testified that he accompanied inspector Reidmann on an inspection the day
Citation No. 8006753 was issued. The citation was served on Bochna. In the course of the
inspection, Bochna observed four working contractors on the C1 section. More specifically, they
were working inby the No. 2 Entry, about one block inby the longwall face. It takes a minute to
walk one block. Production was occurring at that time and about 12 people were working on the
longwall, and various people on that crew would have had a multi-gas detector. (Tr. 401-402).
The four contractors came in with the crew and therefore the crew would have known that the
contractors were there. (Tr. 402-403). Other miners were near the longwall face in the No. 2
Entry. A headgate operator was in the No. 3 Entry on the face, about 2 blocks away. It would
take about two minutes to walk two blocks. Various miners, including the headgate operator,
mechanics, and the foreman would have a “gas meter.” (Tr. 403-404).
Bochna went to the area where the contractors were to check for ventilations and insofar
as the readings were concerned he “did not think we had anything.” (Tr. 405). It is Emerald’s
practice to send a miner with a multi-gas detector along with the contractors depending on where
they are working. If they are away from a group of people they would have someone with a
detector with the group and would not need one. (Tr. 410-411). But if there was a person on the
longwall section with a multi-gas detector, the alarm would not be heard by, in this case, the four
contractors. (Tr. 421). This is also true of the MGD that the headgate person used. (Tr. 422).
2. Testimony of William Schifko
Schifko testified for Respondent with respect to Citation No. 8007661 as well.
Schifko decided to contest this citation due to confusion with regulations promulgated by
MSHA and the portion of the regulations that caused confusion was the definition of “alone.”
Schifko asked for compliance assistance from several people including MSHA field inspectors
and from the District Office. (Tr. 434). Someone from MSHA referred to a series of questions
and answers prepared by MSHA and specifically question No. 35, which is part of Respondent’s
Exhibit 27. Schifko testified that the question stated, “Are several miners who work individually
but are normally located within a maximum of five minutes walking distance from all the miners
in this group are each required to have a multi gas detector?” And the answer provided is, “No,
if it is practical and logical for these miners to quickly assemble prior to evacuation, only one gas
detector to (sic) required for this group.” (Tr. 437).
Schifko further testified that that in a policy issued to all contractors, that he expected
them to provide their own safety equipment including detectors. In the past, Emerald had lent
detectors out to people and not gotten them back, which is expensive. (Tr. 438-439). There are a
lot of occasions where miners do not have their detectors or have forgotten them and Emerald
has allowed them to borrow the equipment. Schifko makes them sign for the equipment. (Tr.
439). Loaner detectors were available. (Tr. 440).
The High Tech employees typically work at the long wall because that is the only place
where pumpable cribs are built. Pre-shift organizational meetings are held where assignments
are given and everyone is told where to go. The Emerald “responsible person” knows where
everybody is going to go. (Tr. 440-441).

36 FMSHRC Page 770

Insofar as a potential ignition on the longwall face is concerned, Schifko testified that
they had never had any ignition in the C Block. Further, whether or not there was an ignition
would not be influenced based on whether the contractors had detectors.
Schifko disagreed with the testimony attributed to inspector Reidmann that if you cannot
see or hear somebody else, that someone was alone. Although he does not believe that Inspector
Reidmann was given a lot of guidance from MSHA. (Tr. 445). There is no question in
Schifko’s mind that someone with a multi-gas detector was within 900-1000 feet and therefore
within five minute walking distance. (Tr. 447-448). Furthermore, it is Schifko’s testimony that
the four contractors were in the same group as the people working on the longwall. (Tr. 450).
SECRETARY’S ADDITIONAL EVIDENCE
1. Testimony of Robert Newhouse
Following Respondent’s Final witness, the Secretary moved to re-open the record, which
motion was granted and the Secretary then presented witness Robert Newhouse.
Newhouse is employed by MSHA as the supervisory coal mine inspector for the Ruff
Creek Field Office and has been as supervisor since 1985. He has been an inspector of
underground coal mines since 1977. (Tr. 501). Newhouse was designated as the Secretary’s
Representative and sat at counsel table for all proceedings.
Newhouse testified that he read all of the questions and answers regarding multi-gas
detectors in RX 27 and had been involved in the issuance and development of the standard. He
was familiar with the standards, why they were enacted, and their purpose. In his opinion, the
question about distance and a five minute walk is irrelevant. The key is air pressure. A group of
miners or an individual miner walking in an area that can have bad air, is being inundated with
smoke, needs to be protected with a detector. (Tr. 502-503).
Newhouse testified that due to the check curtain the intake air was split, creating different
areas where the air pressure was different. In the longwall mining area, the rock fell back across
the shields as mining occurred and normal roof falls occur. The rock displaces air in that area
forcing the air to come out through the entries as it has to go somewhere. Thus, there is a
buildup of pressure in the areas where there is no fall, creating a void, or a potential void. That
void has methane, low oxygen, dust, and other “things” in it. The four contractors and the other
people in the mine would not necessarily know. They would know if a roof fall occurred, but
their air would not change. That is why they have a union person with a detector normally
assigned to the contractors who are inexperienced. (Tr. 503-505).

36 FMSHRC Page 771

CONTENTIONS OF THE PARTIES
1. The Secretary’s Contentions
The four contract miners working underground were a group and Respondent was
therefore obligated to provide a multi-gas detector to the group.
2. Respondent’s Contentions
The four contractor miners working underground were not a group, but were instead part
of a larger group that was equipped with a multi-gas detector. The fact that the contract miners
were within a five minute walk from Respondent’s miners satisfies MSHA’s question and
answer publication which clarifies the requirements of 30 C.F.R. §75.1714-7(a).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Validity
Respondent was cited because the inspector found four contractors working together in
the mine without a multi-gas detector. Furthermore, there were other miners within a five
minute walk of the four contractors, though not working directly with them, who had multi-gas
detectors. These facts are not in contest. The cited standard, 30 C.F.R. §75.1714-7(a) requires
all individual miners or groups to have a working multi-gas detector. Therefore, the primary
issue with respect to this violation is whether the four contractors were members of a discrete
“group” that were not supplied with a multi-gas detector or were part of a larger “group” that
included miners who had the required multi-gas detector. To a large extent, this topic boils down
to the definition of the word “group.”
Under well-settled Commission precedent, where the language is clear, the terms of that
provision must be enforced as they are written, unless the regulator clearly intended the words to
have a difference meaning or unless such a meaning would leave to absurd results. Sedgman, 28
FMSHRC 322, 329 (June 2006); and Jim Walter Res., Inc., 28 FMSHRC 983, 987 (Dec. 2006).
In the absence of a statutory definition or a technical usage of a term, the Commission applies its
ordinary meaning. Id.
Here, the term “group” is not given a statutory definition. The Merriam-Webster
dictionary defines a group as, “two or more figures forming a complete unit in a composition”
and “a number of individuals assembled together or having some unifying relationship.”
Merriam-Webster Dictionary (11th Ed. 2003). In the context of the standard, there is no real
question as to the meaning of the term. “Group” in the context of §75.1714-7(a) cannot mean
anything other than two or more workers acting together as a unit, in a discrete area, with
knowledge that they are members of a group. In this situation, the four contractors functioned as
a discrete and separate unit. They acted together to perform foreman work. There is no other
way to describe the four contractors as anything other than a “group.” At the same time, it would
be absurd to consider other employees, even those employees working nearby, to be considered a
part of their “group.” There is no evidence in the record that they interacted with Respondent’s

36 FMSHRC Page 772

direct employees on the Longwall or in any way coordinated their work. The plain meaning of
the word “group” will not support such a contention.
Beyond the plain meaning of the word group, considering the four contractors as part of
the longwall group would have a negative effect on the safety of miners. The Commission has
interpreted that the plain meaning of a term along with the overall purpose of the Act. Local
union No. 5817, District 17, United Mine Workers of America v. Monument Mining Corp. and
Island Creek Coal Company, 9 FMSHRC 209, 211-212 (Feb. 1987); see also 30 U.S.C.A. §
801(a) (“the first priority and concern of all in the coal or other mining industry must be the
health and safety of its most precious resource--the miner.”) I credit the testimony of Inspector
Reidmann that the contractors would not have heard the multi-gas detector alarm on the
longwall. Furthermore, I credit Newhouse’s testimony that the contractors and the miners on the
longwall were breathing different air, meaning that even if the longwall miners’ multi-gas
detector did not go off, the contractors could be experiencing dangerous atmosphere. An
understanding that miners breathing different air and outside of the range of the alarm are part of
the same “group” as the longwall miners would place a technical reading of the term “group”
over the Act’s primary goal of miner safety.
As I have decided to apply the plain meaning of the term “group,” there is no need to
consider the level of deference accorded to the Secretary in this instance. Furthermore, there is
no need to discuss whether Respondent had “fair notice” of the interpretation because the
meaning of the standard was clear.13
13

Respondent presented several arguments to support its claim that the Secretary’s
interpretation was not entitled to deference. Specifically, it claimed that the Secretary was
inconsistent in his interpretation, that its current interpretation is a post-hoc rationalization, and
that the interpretation would be absurd. However, it is only when the meaning is ambiguous that
the judge is to consider the reasonableness of the Secretary’s interpretation. See Udall v.
Tallman, 380 U.S. 1, 16-17 (1965) (finding that reviewing body must “‘look to the
administrative construction of the regulation if the meaning of the words used is in doubt”’)
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14 (1945)); Exportal LTDA v.
United States, 902 F.2d 45, 50 (D.C. Cir. 1990) (“‘Deference … is not in order if the rule's
meaning is clear on its face.”’) (quoting Pfizer, Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir.
1984); see also Jim Walter Res., 28 FMSHRC 983, 987 (Dec. 2006); Jim Walter Res., 19
FMSHRC 1761, 1765 (Nov. 1997); Cannelton Indus., 26 FMSHRC 146, 151 (Mar. 2004). As I
found that the meaning of the word “group” in the context of the standard was not ambiguous,
there is not need to consider the deference accorded to the Secretary.
However, even if this definition of “group” simply were the Secretary’s interpretation, I
do not believe Respondent’s arguments attacking the reasonableness of that definition are
compelling. For example, Respondent’s argument relies on the 2007 Emergency Mine
Evacuation Final Rule Questions and Answers. That document included a question asking if
individual miners working within a five minute walking distance were each required to carry a
detector. The answer said, “No, if it is practical and logical for these miners to quickly assemble
(continued…)

36 FMSHRC Page 773

2. Gravity and S&S Discussion
With respect to the gravity of this citation, I credit the testimony of Inspector Reidmann.
He presented evidence that if the four contractors encountered dangerous conditions; they would
be unaware of the danger. As a result, those miners could have been trapped in an area with low
oxygen and/or carbon monoxide and loss of consciousness or even been injured by a methane
explosion. The possibility of low oxygen or carbon monoxide is a real danger in a coal mine.
13

(continued…)
prior to evacuation, only one multi-gas detector is required for this group.” Respondent
argues that it this means the four miners were part of the longwall group. However, Respondent
ignores the fact that individual miners are only considered part of a group if, “it is practical and
logical for these miners to assemble quickly prior to evacuation.” As already shown, the
Secretary’s witnesses credibly testified that the contractors would not have heard the alarm.
Therefore, it would not have been practical for those contractors to quickly assemble in order to
evacuate. Instead, miners on the longwall that heard the alarm would have had to immediately
act as a rescue crew and go searching for the contractors rather than themselves safely
assembling for evacuation. Further, as those miners were in different air, there was no practical
way for the contractors to know if they were experiencing dangerous atmosphere and were in
need of evacuation.
In a related argument, Respondent contends that the Secretary’s interpretation of the term
“group” has been inconsistent in light of the above “answer” and that its use of the interpretation
urged at hearing was a post-hoc rationalization. However, as shown above, the Secretary’s
position at hearing, as well as the 2007 Question and Answer, are consistent with the language of
the standard and with one another. If anything, it appears that the Respondent is the party
engaging in post-hoc rationalization of its position. The evidence clearly showed that at all other
times, Respondent provided an escort with a multi-gas detector to the contractors. (Tr. 360, 410411). It was only when they were cited in this particular instance that it argued that these miners
were part of a larger group.
Finally, Respondent argues that the Secretary’s interpretation is absurd because it would
be unclear whether a group is determined by “minimum distance” or “common task.” It noted
that miners working on separate tasks but “within arms reach” might not be considered a group
and require a separate multi-gas detectors. I do not believe there is any uncertainty. The issue is
not whether “minimum distance” or “common task” denotes a group; those are two equal aspects
of the definition of “group.” Miners at a distance from other miners are not part of the same
“group” for the reasons discussed already, namely different air courses and inability to hear an
alarm. At the same time, miners working on a different task, even if close by, are not part of a
“group” because, as they are not part of a unit working together, they may leave the area without
being noticed or accounted for at any time. In essence, miners working in a group share a known
responsibility towards a particular task and also for one another. A miner outside of that shared
task could easily be left outside of the group’s sense of reasonability as well. That is why a
worker conducting an unrelated task, even if close, might be considered outside of a “group.”
There is nothing absurd about that result.

36 FMSHRC Page 774

Furthermore, this was a gassy mine on a five-day spot with a history of face ignitions, making a
face ignition possible. (Tr. 367-368). As a result, I agree with the Secretary’s findings that this
hazard was reasonably likely and possibly fatal.
As stated previously, in order to establish S&S, the Secretary must prove: (1) the
underlying violation of a mandatory safety standard; (2) a discrete safety hazard 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 at 3-4.
As shown above, there was an underlying violation of the mandatory safety standard.
With respect to the second factor, Respondent argues that the failure to provide the
contractors with a multi-gas detector did not contribute to a safety hazard because the contractors
were not engaged in an activity that risked ignition.14 (Respondent’s Post-Hearing Brief at 4849). It may be true that the contractors were note engaged in an activity that risked ignition but
that does not change the fact that they were near the face where mining activity was taking place.
In the event of an inundation of methane, those contractors would have no warning. Further, in
order to be S&S, a violation need not be shown to cause a hazard, it need only contribute to a
hazard. The fact that the miners did not have a multi-gas detector would contribute to the hazard
of explosion in someway, regardless of the possible causes of ignition. Finally, methane ignition
is not the only hazard possible. The miners could enter an area with carbon monoxide or low
oxygen and lose consciousness, regardless of the presence of explosive gases.
Respondent also argues that, in the event of an incident, the contractors would have been
among the first warned of danger because of their location. This would only be true if the
contractors happened to be in a location where they could be easily warned. There is no
evidence to suggest that evacuating miners would definitely come in contact with the contractors.
Even if they would, that protection would only help those contractors if they were in the same
atmosphere as the miners with multi-gas detectors. If the contractors were in an area with
methane, low oxygen, or carbon dioxide while the other miners were not, there would be no
warning. Therefore, the failure to provide multi-gas detectors to the miners contributed to the
hazard of exposure to explosion or to asphyxiation.
With respect to the third and fourth factors of Mathies, There is no question that an
explosion or asphyxiation would cause an injury to the contractors. Furthermore, such an injury
would be serious, perhaps even deadly. As a result, I hold that this violation was S&S.

14

Respondent also argues that there was no danger of ignition because there was no
methane was present. (Respondent’s Post-Hearing Brief at 48). However, as Respondent is
apparently aware based on other arguments in the brief, as an emergency standard, an event is
assumed when considered the S&S nature of the violation. Cumberland Coal Resources, LP, 33
FMSHRC 2537 (Oct. 2011).

36 FMSHRC Page 775

3. Negligence
Respondent knew or should have known that the contractors should have been provided
with a multi-gas detector. In fact, the Secretary presented evidence that Respondent had always
sent the contractors with an escort in the past equipped with a multi-gas detector. (Tr. 360, 410411). This shows that Respondent was aware that these miners were a “group” and that they
were required to provide a multi-gas detector for them. I credit Reidmann’s testimony that
Respondent’s actions were only moderately negligent because they had attempted to comply
with the standard in the past. (Tr. 370-372).
4. Penalty
Under the assessment regulations described in 30 C.F.R. §100, the Secretary proposed a
penalty of $3,143.00 for Citation No. 8006753. While the Secretary’s proposal was duly
considered, under 30 U.S.C. §820(i), the power to assess a penalty is vested with the
Commission. That law also dictates several factors be considered before an assessment is made.
I will not evaluate each of those factors in turn with respect to penalty for Citation No. 8006753:
a.

The operator’s history of previous violations – Respondent was cited four
times under Section 75.1714-7(a) in the past two years.

b. The appropriateness of the penalty compared to the size of the Operator’s
business – Emerald Mine No. 1 produces 6,343,350 tons of coal annually and
Respondent produces 69,624,256 tons of coal annually in all its operations.
According to MSHA’s penalty assessment guidelines this gives Emerald Mine
No. 1 15 “mine size points” out of a possible 15 and Respondent 10
“controller size points” out of a possible 10. See 30 CFR § 100.3(b). Thus,
Respondent is a very large operator with a very large mine.
c. Whether the Operator was negligent – as previously shown, the operator
exhibited moderate negligence.
d. The effect on the Operator’s ability to remain in business – the parties have
stipulated that the citations at issue here would not affect Respondent’s ability
to remain in business.
e. The gravity of the violation – as previously shown, this violation was
reasonably likely to cause injury, or illness that could reasonably be expected
to be fatal.
f. The demonstrated good-faith of the person charged in attempting to achieve
rapid compliance after notification of a violation – The evidence shows the
condition was rapidly abated in good faith.

36 FMSHRC Page 776

I AFFIRM Citation No. 8006753 as issued as well as the Secretary’s proposed penalty
assessment of $3,143.00.
ORDER
Respondent, Emerald Coal Resources, LP, is hereby ORDERED to pay the Secretary of
Labor the sum of $8,143.00 within 30 days of the date of this decision.15

/s/ William S. Steele
William S. Steele
Administrative Law Judge
Distribution:
Patrick W. Dennison, Esq., & Jason P. Webb, Esq., Jackson Kelly, PLLC, Three Gateway
Center, 401 Liberty Avenue, Suite 1500, Pittsburgh, PA 15222
Pamela Mucklow, Esq., U.S. Department of Labor, Office of the Solicitor, 1999 Broadway, Suite
800, Denver, Co 80201

15

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

36 FMSHRC Page 777

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
Office of Administrative Law Judges
th
721 19 Street, Suite 443
Denver, CO 80202-2536
303-844-3577 FAX 303-844-5268

March 27, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
BLACK BEAUTY COAL COMPANY,
Respondent

:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2010-39
A.C. No. 12-02010-197503-01
Docket No. LAKE 2010-106
A.C. No. 12-02010-200613-03
Air Quality #1 Mine

DECISION
Appearances:

Nadia A. Hafeez, Esq., and Matthew M. Linton, Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for Petitioner;
Author M. Wolfson, Esq., and Page Jackson, Esq., Jackson Kelly, PLLC,
Pittsburgh, Pennsylvania, and Denver, Colorado, for Respondent.

Before:

Judge Manning

These cases are before me upon petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”),
against Black Beauty Coal Company, owned by Peabody Midwest Mining, LLC (“Peabody”)
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 Evansville, Indiana, and filed post-hearing briefs.
Peabody operated the Air Quality #1 Mine in Knox County, Indiana. A total of three
section 104(a) citations and four 104(d)(2) orders of withdrawal were adjudicated at the hearing.
Two orders and 49 citations settled in these dockets.
I. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A. Citation No. 8421043; LAKE 2010-106
On August 28, 2009, Inspector Philip Douglas Herndon issued Citation No. 8421043
under section 104(a) of the Mine Act, alleging a violation of section 75.1403-5(g) of the
Secretary’s safety standards. (Ex. G-3). The citation stated that the walkway around the Main
South slope tail was not being maintained because the walkway was covered in a layer of mud

36 FMSHRC Page 778

that was about 1 foot deep, 5 feet wide, and 9 feet long. The citation stated that the muddy
conditions made travel around the tail slick and hazardous. Inspector Herndon determined that
an injury was reasonably likely to occur and that such an injury could reasonably be expected to
result in lost workdays or restricted duty. Further, he determined that the violation was
significant and substantial (“S&S”), the operator’s negligence was high, and that one person
would be affected. Section 75.1403-5(g), which is a safeguard criterion, states that “a clear
travelway at least 24 inches wide should be provided on both sides of all belt conveyors installed
after March 30, 1970.” 30 C.F.R. § 75.1403-5(g). The Secretary proposed a penalty of
$3,689.00 for this citation.
Background
Inspector Herndon testified that the mud he encountered made the travelway slick and
created a hazard to miners traveling in the area. (Tr. 30-31). He determined that the conditions
violated Safeguard Notice No. 7591942. The conditions made it reasonably likely that a miner
traveling in the area would slip, fall, and come into contact with sharp objects in the area such as
the belt structure or the tailpiece. (Tr. 21-32). He concluded that any injuries would likely result
in lost workdays or restricted duty. He determined that Peabody’s negligence was high because
mine examiners were required to walk through the area to conduct examinations. (Tr. 33).
Peabody previously received citations for muddy conditions in the same location. (Tr. 33-35).
Indeed, the inspector testified that he previously fell in the cited area as a result of muddy
conditions. Id.
Safeguard Notice No. 7591942 was issued on May 7, 2003, and was modified on August
9, 2007. (Ex. G-1). The safeguard was issued because rib coal and rib rock fell into the
travelway along each side of the 2-A conveyor belt at crosscut 17. The safeguard notice required
Peabody to maintain a 24 inch travelway on both sides of all belt conveyors. The safeguard
notice was modified in August 2007 to include a requirement that “the 24 inch travelway shall be
clear of mud and water.” Id.
Discussion and Analysis
Peabody maintains that this safeguard notice, as modified, is invalid and should be
vacated. I previously held that Safeguard Notice No. 7591942 is valid and enforceable as
modified. Black Beauty Coal Co., 36 FMSHRC ____, slip op. at 23, No. LAKE 2009-414
(March 10, 2014).1 For the reasons set forth in that decision, I affirm my holding that the
safeguard notice was validly issued and modified.
Inspector Herndon testified that he observed mud on the right side of the tail that
presented a slipping hazard. (Tr. 31). He did not measure the muddy area, he simply estimated
the dimensions. (Tr. 42). At the hearing, the inspector did not testify about the width of the
travelway or how much of the travelway’s width was compromised by mud and water.
1

Commission Judge Miller also determined that this safeguard notice was valid including
the modification. Black Beauty Coal Co., 33 FMSHRC 1504, 1517-18 (June 2011) (ALJ).

36 FMSHRC Page 779

Randall Hammond was Peabody’s escort during Inspector Herndon’s inspection of the
mine on August 28, 2009. He testified that the citation was issued at the tail of the Main South
Slope belt, which is a transfer point between the Main South Belt and the Main South Slope belt.
(Tr. 48). The area is often wet because water is applied to the belts, scrapers wipe water from the
bottom belts, and the area is frequently washed to clean up accumulations. Peabody constructed
a 24 inch wide wooden bridge on the left side of the tail area parallel to the transfer point. (Tr.
48-49; Ex. R-2, R-3). Peabody also placed wooden pallets at the cross-under point of the Main
South belt to create a walkway. Id. Hammond testified that the travelway on the right side of the
tail structure was 10 feet wide and there was room for safe passage despite the presence of mud
and water. (Tr. 51, 57). He said that he walked through the area during the inspection without
stepping in mud or water. He took measurements in the area. At least 5 feet of the 10 foot
travelway was clear of mud and water. (Tr. 52, 58).
Peabody maintains that Citation No. 89421043 should be vacated because the Secretary
did not establish a violation of the safeguard. Peabody does not dispute that there was mud on
the right side of the tail, but argues that the presence of mud does not establish a violation
because the safeguard notice requires that a “24-inch travelway shall be clear of mud and water.”
(Ex. G-1 at 3). Hammond testified the muddy area was near the corner of the tail so that there
was at least a clear 24-inch wide walkway provided between the muddy area and the rib. (Tr. 53;
Exs. R-2, R-3). Consequently, the Secretary failed to prove a violation.
I credit the testimony of Hammond as to the measurements that he took. I also note that
Inspector Herndon did not compare the width of the subject travelway to the width of the wet
and muddy area to see if 24 inches of clearance was provided.2 The presence of mud in a
travelway does not establish a violation of the safeguard notice unless there is not a clear 24-inch
path along the travelway. The Secretary bears the burden to establish a violation of a safeguard
notice. Cyprus Cumberland Resources Corp., 19 FMSHRC 1781, 1785-86 (Nov. 1997). The
Secretary assumed that the presence of mud in the travelway established a violation due to the
hazards presented. Although the Secretary’s authority to issue safeguards is broad, the language
of a safeguard must be construed narrowly. Cyprus Cumberland, 19 FMSHRC at 1785;
Southern Ohio Coal Co., 7 FMSHRC 590, 512 (April 1985).
Citation No. 8421043 is therefore VACATED.
B. Order No. 8421014; LAKE 2010-39
On August 5, 2009, Inspector Herndon issued Order No. 8421014 under section
104(d)(2) of the Mine Act, alleging a violation of section 75.400 of the Secretary’s safety
standards. (Ex. G-6). The order states, in part, that the Main South Slope Belt was operating
2

Both Inspector Herndon and Hammond are experienced miners. The inspector had
about 27 years of coal mining experience including 3 years as an MSHA inspector. (Tr. 27).
Hammond also had about 27 years of coal mining experience including several years as director
of the Indiana Bureau of Mines. (Tr. 47).

36 FMSHRC Page 780

while in contact with an accumulation of coal fines that was 6 feet wide and 10 feet long. The
coal fines were black in color and dry. The inspector alleged that the accumulations should have
been obvious to the “most casual of observers.” Id.
Inspector Herndon determined that an injury was reasonably likely to occur and that such
an injury could reasonably be expected to result in lost workdays or restricted duty. Further, he
determined that the violation was S&S, the operator’s negligence was high, and that three people
would be affected. Section 75.400 states that “coal dust, including float coal dust deposited on
rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be
permitted to accumulate in active workings . . . .” 30 C.F.R. § 75.400. The Secretary proposed a
penalty of $15,971.00 for this order.
Background
This order was issued in the same area as Citation No. 8421043, discussed above. At this
location the Main South belt dumped coal onto the Main South slope belt, which transported coal
out of the mine.3 Inspector Herndon observed that the Main South slope tail was running and the
belt was contacting an accumulation of coal fines. (Tr. 61). The accumulation was about 18
inches deep. (Tr. 65-66). The guard around the tail was packed with accumulations so that when
the guard was removed, about three feet of fines were released. (Tr. 66). Inspector Herndon
determined that the coal fines took a significant amount of time to accumulate in the area. He
was especially concerned because the coal fines were compacted and conformed to the shape of
the belt. (Tr. 67; Ex. G-6). The fines were dry where the rollers contacted them. (Tr. 63, 89).
Timothy Thompson, a safety technician for Peabody, accompanied Inspector Herndon on
August 5, 2009. He testified that the area cited by the inspector was wet. (Tr. 93). The slope
belt tail was installed upon a concrete pad and water tended to accumulate in the area because it
was in a low lying area. (Tr. 94). Thompson testified that there is water is on the South Slope
belt and water sprays were directed at the head roller on the Main South Belt. (Tr. 95). This
water tends to drip down toward the tail piece of the South Slope belt. (Tr. 96; Ex. G-7 at 11).
There were also CO sensors inby the location of the tail for the South Slope belt that notify the
control center on the surface in the event of an increase in carbon monoxide levels. (Tr. 97-98).
The Secretary argues that the violation was S&S because the evidence establishes that the
moving belt and turning rollers contacted dry coal fines. (Sec’y Br. 17; Tr. 63, 73, 75). The
discrete safety hazards created were the inhalation of smoke and burns suffered by miners
fighting a fire. It was reasonably likely that a fire would start and seriously injure a miner in the
area.
The Secretary also maintains that the inspector’s unwarrantable failure determination is
supported by the evidence. The inspector determined that Peabody knew about the condition for
five production shifts because it was recorded in the belt books that long. (Ex. G-8). Peabody
3

At the time of the hearing, Peabody was no longer using the South Slope and the Main
South belts. It had consolidated its operations to the west side of the mine.

36 FMSHRC Page 781

was also warned about accumulations in this area many times. The operator was deliberately
ignoring the problem.
Peabody, on the other hand, contends that the violation was not S&S because a
confluence of factors that would make a fire reasonably likely was not present. The material
cited was wet and much of it was made up of noncombustible material. The evidence establishes
that the area was consistently wet and, assuming continued normal mining operations, it would
have remained wet. (Peabody Br. 17; Tr. 73, 93). In addition, three miners were shoveling in the
area so it can be inferred that the condition would have been cleaned up in a short period of time.
It was not reasonable likely that a fire would start or that anyone would be seriously injured if the
material began to smolder.
Peabody also maintains that the Secretary did not establish that the violation was the
result of its unwarrantable failure to comply with the safety standard. The evidence shows that
the accumulation was not extensive; it would not have been present for a long period of time;
and it did not pose a high degree of danger. Peabody was in the process of removing the
accumulation and it was not on notice that additional efforts were needed to remove
accumulations at the mine.
Discussion and Analysis
I find that the violation was serious but the Secretary did not establish that the violation
was S&S.4 I find that it was unlikely, taking into consideration continuing mining operations,
that the cited condition would have ignited or created a fire. I reach this conclusion for several
reasons. First, I find that the evidence establishes that the material in the area was wet and much
of it was incombustible mud and rock. Although I credit the inspector’s testimony that the
material that contacted the belt was dry, the remaining material was too wet to burn and would
not have dried out quickly. It was not reasonably likely to ignite. Second, it was not reasonably
likely that anyone would suffer smoke inhalation or burns because it was unlikely that the
condition would have led to an event in which significant smoke was produced. Although there
was a remote possibility that some smoldering would have occurred in the event the
accumulations were not removed, the evidence establishes that it would have been localized and
4

An S&S violation is a violation “of such nature as could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d)
(2006). A violation is properly designated S&S “if, based upon the particular facts surrounding
that violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981). In order to establish the S&S nature of a violation, the Secretary must
prove: “(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard –
that is, a measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood
that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the
injury will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984);
accord Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861
F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

36 FMSHRC Page 782

the mine’s firefighting team would not have been exposed to the hazards of burns or smoke
inhalation. Third, Peabody’s Belt & Roadway Inspection Reports (the “Inspection Reports”)
establish that during many shifts when the examiner discovered accumulations in the cited area,
actions were taken to remove them. During the shifts immediately preceding the inspection,
Inspection Reports note that there were mud and fines at the tail and that either work was in
progress to remove the mud and fines or that the area was washed down. (Ex. G-8). Peabody
did not ignore the accumulations. Miners were shoveling accumulations in the area at the time
of the inspection. There was no methane present; other sources for an ignition were not present;
and the area was a long distance from working sections of the mine. The gravity was serious.
I also find that the Secretary did not establish that the violation was the result of
Peabody’s unwarrantable failure to comply with the safety standard.5 Peabody was negligent
with respect to this violation but its negligence did not rise to the level of aggravated conduct.
The violation was obvious because Peabody knew that it was common for coal fines, muck, and
mud to accumulate at the bottom of the South Slope belt. The area was consistently wet,
however, and was frequently cleaned. Although accumulations had been present for several
shifts, the area was cleaned regularly and miners were shoveling in the area. It is not clear how
long the particular accumulation discovered by the inspector was present. Peabody, through its
examiners, knew that material frequently accumulated around the tail of the South Slope belt.
The condition did not pose a high degree of danger as discussed above. The accumulation was
mostly wet and included mud and muck. Peabody was aware that MSHA issued many citations
for accumulations along belt lines over the previous few years. (Ex. G-26). MSHA instituted a
belt initiative following the fire at Aracoma Coal Company’s Alma Mine belt fire. MSHA
routinely warned mine operators, including Peabody, to do a better job of keeping their belts
clean.
In a previous case, I came to the same conclusion with respect to two accumulation
violations issued in February 2009 near the tail of the South Slope belt and along the outby end
of the Main South belt. Black Beauty Coal Co., 36 FMSHRC _____, slip op. at 12-18, No.
LAKE 2009-413 (Mar. 10, 2014). I determined that Peabody violated section 75.400 and that
the violations were serious but were not S&S or the result of an unwarrantable failure. My
reasoning in this case parallels my reasoning with respect to those violations.
5

Unwarrantable failure is defined by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference” or a “serious lack of reasonable care.” Emery Mining Corp., 9
FMSHRC at 2003; see also Buck Creek Coal, Inc. v. FMSHRC, 52 F. 3d 133, 136 (7th Cir.
1995). Whether conduct is “aggravated” in the context of an unwarrantable failure analysis is
determined by looking at all the facts and circumstances of each case to see if any aggravating
factors exist, such as the length of time that the violation has existed, the extent of the violative
condition, whether the operator has been placed on notice that greater efforts are necessary for
compliance, the operator’s efforts in abating the violative condition, whether the violation is
obvious or poses a high degree of danger, and the operator’s knowledge of the existence of the
violation. See e.g. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). 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.
Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).

36 FMSHRC Page 783

Order No. 8421014 is MODIFIED to a section 104(a) non-S&S citation with moderate
negligence. The violation was serious. A penalty of $12,000.00 is appropriate for the present
violation.
C. Order No. 8420824; LAKE 2010-39
On August 5, 2009, Inspector Anthony DiLorenzo issued Order No. 8420824 under
section 104(d)(2) of the Mine Act, alleging a violation of section 75.363(a) of the Secretary’s
safety standards. (Ex. G-10). The order states that the conditions described in Citation No.
8420822 existed since July 28, 2009, and no apparent effort was made to correct the conditions.
The order states that the conditions described in the citation were extensive, obvious, existed for
a significant length of time, and were included in the Inspection Records since July 28, 2009.
The underlying section 75.400 violation described in the citation occurred along the 5 C belt and
consisted of an accumulation of combustible material from crosscut 0 to crosscut 13. 6
Inspector DiLorenzo determined that an injury was unlikely, but that any injury could
reasonably be expected to result in lost workdays or restricted duty. Further, he determined that
the violation was not S&S, the operator’s negligence was high, and that four people would be
affected. Section 75.363(a) states, as relevant here, that any “hazardous condition found by a
mine foreman or equivalent mine official . . . [including mine examiners] . . . shall be corrected
immediately or the area shall remain posted until the hazardous condition is corrected.” 30
C.F.R. § 75.363(a). The Secretary proposed a penalty of $4,000.00 for this order.
Background
Inspector DiLorenzo testified that the 5 C belt advances with the working section as it
progresses further into the mine. (Tr. 106). The accumulations consisted of loose coal, coal
fines, and float coal dust that were black in color. The coal dust was upon all surfaces and
structures. Piles of coal and coal fines were under the head and tail in an area that was 2 feet
wide, 3 feet long, and 16 inches deep. Id. Loose coal and rib rolls were also present along both
ribs up to 20 inches deep, 2 feet wide, and 15 feet long. This condition was continuously listed
in the Inspection Reports since the day shift of July 28, 2009. (Tr. 107; Ex. G-12). At the
hearing, Inspector DiLorenzo went through the Inspection Reports to show where the entries
were made for belt 5 C and what the entries said. (Tr. 108-09). The inspector believed that an
ignition or fire was unlikely because there were no friction or ignition hazards. (Tr. 110).
Hammond explained that on the front page of each Inspection Report for a particular
shift, the examiner records any “violations or hazardous conditions” that are discovered along a
beltline. (Tr. 127). The examiner records on the back of the page any actions taken to remedy
the hazards or violations recorded on the front of the page and also may add additional remarks
concerning the conditions he observed along the belts. These remarks are “conditions that are
observed by an examiner which he deems are not hazardous conditions or violations.” Id. By
6

Peabody paid the Secretary’s proposed penalty for this citation so the conditions
described therein are deemed admitted.

36 FMSHRC Page 784

company policy, any conditions recorded in the “Violations or Hazardous Conditions” column on
the front of the page are to be corrected immediately. (Tr. 128). Conditions listed in the
“Remarks” column do not require immediate attention.
Hammond did not dispute that the conditions described in Citation No. 8420822 by
Inspector DiLorenzo existed on August 5, 2009. (Tr. 129-30; Ex. R-16). Nevertheless, he does
not believe that the conditions set forth in the citation created a hazard because there were no
ignition sources that could ignite the accumulations. (Tr. 130). He testified that the presence of
coal in a coal mine does not constitute a hazard because “coal in itself is not a hazardous
condition.” Id.
Discussion and Analysis
Peabody contends that all the references in the Inspection Reports to areas along the 5 C
belt that needed to be cleaned were in the remarks section on the back page for each shift. These
entries did not document hazardous accumulations that needed to be immediately removed but
documented conditions that needed attention but were not hazardous. When the inspector issued
the underlying citation, he determined that the accumulations were unlikely to result in an injury,
which confirms the examiners’ conclusion that the conditions did not present a hazard. Peabody
argues that section 75.363(a) was not violated because “hazardous conditions” were not “found”
by the mine examiners. The conditions that the examiners found and recorded in the comments
section were not required to be immediately corrected because they were not hazardous.
The Secretary argues that the conditions the inspector observed created the safety hazards
of inhalation of smoke and burns. A violation need not be S&S to create a hazardous condition.
The lack of ignition sources, while relevant when considering whether the cited condition was
S&S, is not relevant when considering whether a hazard existed. (Sec’y Br. 23). The Secretary
states that any injuries resulting from the accumulations “could reasonably be expected to result
in lost workdays or restricted duties.” Sec’y Br. 21.
In Black Beauty Coal Co., Commission Judge Miller set out the following test for
analyzing whether the safety standard has been violated:
In order to establish a violation, the Secretary must first
demonstrate that “hazardous conditions” existed. Next, she must
establish that the hazard had not been corrected or posted. Hence,
the Secretary has the burden of demonstrating that the conditions
listed by [the inspector] are a hazard, that they can cause damage
or accidents. Once the existence of a hazard has been established,
the focus shifts to the actions, if any, taken to remediate the
condition.
33 FMSHRC 1504, 1511 (June 2011) (ALJ).
Whether the conditions observed by Inspector DiLorenzo were hazardous is a close
question. In Citation No. 8420822, the underlying citation that was issued under section 75.400

36 FMSHRC Page 785

for the accumulations, was marked as non-S&S, and an injury or illness was marked as
“unlikely.” The accumulations were extensive, but there were no ignition sources in the area.
In Enlow Fork Mining Co., the Commission considered a similar issue under section
75.360(b). 19 FMSHRC 5 (Jan. 1997). That safety standard requires that persons conducting
preshift examinations “shall examine for hazardous conditions and violations of mandatory
health or safety standard . . . .” 30 C.F.R. § 75.360(b). There is no indication that the Secretary
intended the term “hazardous conditions” to have a different meaning in section 75.360(b) than
in section 75.363. In Enlow Fork, the Commission held:
Section 75.360(b) requires that a preshift examiner
“examine for hazardous conditions.” We reject Enlow’s argument
that, because the judge concluded the . . . accumulations were not
S&S, they were not “hazardous” within the meaning of section
75.360(b). The plain language of section 75.360(b) does not
support Enlow’s construction. Section 75.360(b) does not specify
that hazardous conditions are only those reasonably likely to result
in serious injury, nor does that section repeat the S&S language
from section 104(d) of the Act, requiring that the conditions be “of
such nature as could significantly and substantially contribute to the
cause and effect of a . . . mine safety or health hazard . . . .”
Section 75.360(b) does not define the phrase “hazardous
condition.” However, the Commission recognized in National
Gypsum that, based on its dictionary definition, a “hazard” denotes
a measure of danger to safety or health. 3 FMSHRC at 827 & n.7.
The Commission has approved the definition of “hazard” as “a
possible source of peril, danger, duress, or difficulty,” or “a
condition that tends to create or increase the possibility of loss.” Id.
(citing Webster’s Third New International Dictionary 1041 (1971)).
Accumulations of combustible materials have been recognized by
Congress and this Commission as representing hazardous
conditions. (citations omitted).
19 FMSHRC at 14. The Commission concluded that “accumulations of combustible materials
qualify as hazardous conditions that should be recorded by a preshift examiner when found.” Id.
at 15. Although I conclude that there may be accumulations that should not be considered a
hazardous condition, I credit that testimony of Inspector DiLorenzo that the accumulations were
obvious and extensive. (Tr. 111-12). Consequently, the accumulations were a hazardous
condition that was required to be immediately removed.
The Inspection Reports indicated that accumulations were “found” along the 5 C Belt for
several shifts between July 28, 2009, and August 5, 2009. (Ex. G-12). These conditions were
recorded in the comments section of the Inspection Reports. The issue is whether Peabody took
actions to immediately remove the hazardous conditions after they were found. Peabody argues
that it did, as recorded in the Inspection Reports:

36 FMSHRC Page 786

July 29, 2009, midnight shift: “cleaned tail’ (Ex. G-12 at 180).
July 31, 2009, day shift: “Drive pressings-cleaned” (Ex. G-12 at 195).
August 1, 2009, midnight shift: “Drive pressings-cleaned” (Ex. G-12 at 197).
August 1, 2009, afternoon shift: “Drive pressings-cleaned” (Ex. G-12 at 199).
August 3, 2009, day shift: “Cleaned tail” (Ex. G-12 at 209).
(Peabody Br. at 25). The Secretary does not dispute these notes, but contends that there are no
similar notations for other shifts and, more importantly, there is no indication that the entire
beltline was completely cleaned during this period. The inspector testified that the accumulation
extended for about 13 crosscuts along the beltline and that he observed different types of
combustible material along the belt including loose coal, coal fines, and float coal dust. (Tr.
106). Given the size of the accumulation, Inspector DiLorenzo believed that it had existed for a
lengthy period of time.
I find that although Peabody had performed some cleanup work, the Secretary established
that Peabody failed to remediate the condition. I find that the Secretary established a violation of
75.363(a) because it did not immediately remove the accumulation.
The Secretary maintains that all the factors relevant to high negligence and unwarrantable
failure findings are met. The violation existed for one week. The underlying violation was
obvious and extensive, with accumulations along the belt for 13 crosscuts. Peabody was placed
on notice that greater efforts were necessary to comply with section 75.400. Peabody knew of
the violative conditions, as documented in the Inspection Records, but allowed them to continue
for many days. The underlying condition presented a discrete safety hazard.
Peabody contends that the Inspection Reports demonstrate that it cleaned areas along the
belt at least five times between July 29 and August 5, 2009. The evidence establishes that
Peabody took deliberate steps to keep its beltlines clean. The cited condition did not present a
high degree of danger because there were no ignition sources present. Indeed, in both the
underlying citation and the subject order the inspector determined that an injury was unlikely.
The company’s examiners acted in good faith when they reasonably determined that, because no
ignitions sources were present, the accumulations did not create a hazardous condition.
Although the Secretary established some of the unwarrantable failure elements, I find that
Peabody’s conduct did not demonstrate an unwarrantable failure to comply with section
74.363(a). Peabody regularly examined the 5 C belt and carefully monitored conditions along
the belt. It removed accumulations near the head and tail as needed. It reasonably and in good
faith believed that a hazardous condition does not exist unless ignition sources are present. If
accumulations were close to the bottom of the belt or rollers and pulleys, it immediately cleaned
the accumulation.
In Kellys Creek Resources, Inc., the Commission held that “if an operator acted on the
good-faith belief that its cited conduct was actually in compliance with applicable law, and that
belief was objectively reasonable under the circumstances, the operator’s conduct will not be
considered to be the result of unwarrantable failure when it is later determined that the operator’s

36 FMSHRC Page 787

belief was in error.” 19 FMSHRC 457, 463 (Mar. 1997) (emphasis added). I credit the testimony
of Hammond that Peabody did not consider that the conditions along the 5 C belt created a
hazard because there were no ignition sources that could ignite the accumulations. (Tr. 130).
Coal is everywhere in a coal mine with the result that its mere presence does not necessarily
create a hazard. Consequently, Peabody reasonably believed an accumulation was not a
“hazardous condition,” as that term is used in the safety standard, if no ignition sources were
present.
It is difficult to ascertain how long the accumulations Inspector DiLorenzo observed had
existed. More than likely some of the accumulations existed for a shift or longer. I find that
Peabody’s violation of section 75.363(a) was not the result of its unwarrantable failure to comply
with that standard. I find that the violation was serious and was a result of low negligence.
Order No. 8420824 is MODIFIED to a section 104(a) citation with low negligence. A
penalty of $2,000.00 is appropriate for this violation.
D. Citation Nos. 8420857 and 8420858; LAKE 2010-106
On August 31, 2009, Inspector DiLorenzo issued Citation No. 8420857 under section
104(a) of the Mine Act, alleging a violation of section 75.403 of the Secretary’s safety standards.
(Ex. G-13). The citation stated that two out of 13 samples collected along the 2 Right, 3 Right, 4
Left in the 4 Main North intake and return air courses contained less than the percent of
incombustible content required by the standard. Inspector DiLorenzo determined that an injury
was unlikely to occur. Further, he determined that the violation was not S&S, the operator’s
negligence was high, and that 10 people would be affected.
At the time this citation was issued, section 75.403 stated that where rock dust is
required, “it shall be distributed upon the top, floor, and sides of all underground areas of a coal
mine and maintained in such quantities that the incombustible content of the combined coal dust,
rock dust, and other dust shall not be less than 65 per centum, but the incombustible content in
the return aircourses shall be no less than 80 per centum.” 30 C.F.R. § 75.403. The Secretary
proposed a penalty of $3,405.00 for this citation.
On August 31, 2009, Inspector DiLorenzo issued Citation No. 8420858 under section
104(a) of the Mine Act, alleging a violation of section 75.403 of the Secretary’s safety standards.
(Ex. G-14). The citation stated that 12 out of 33 samples collected along a different area of the 1
Right, 3 Right, 4 Left in the 4 Main North intake and return air courses contained less than the
percent of incombustible content required by the standard. Inspector DiLorenzo determined that
an injury was unlikely to occur. Further, he determined that the violation was not S&S, the
operator’s negligence was high, and that 10 people would be affected. The Secretary proposed a
penalty of $3,405.00 for this citation.
Background
Inspector DiLorenzo testified that he took samples only from the floor of different areas
off the 4 Main North entry (MMU-005) because the roof and ribs were too wet to take samples.

36 FMSHRC Page 788

(Tr. 143). He did not specify in his notes why he only took floor samples. (Tr. 154-55). Two of
the first 13 samples collected contained less than the required percentage of incombustible
material when tested by MSHA’s laboratory. (Tr. 142-43; Ex. G-16). He issued Citation No.
8420857 based upon these noncompliant samples.
Inspector DiLorenzo then traveled to a different area of MMU-005 and took 33 samples
off the 4 Main North. The inspector testified that he took all these samples except one from the
floor of the mine because the ribs and roof were too wet. (Tr. 148; Ex. G-16). Again, the
inspector’s contention that the roof and ribs were too wet to sample is not documented in his
contemporaneous notes. MSHA’s laboratory determined that 12 of the 33 samples collected
contained less than the required amount of incombustible material. Id. He issued Citation No.
8420858 based upon these noncompliant samples.
When taking samples under section 75.403, MSHA inspectors generally take band
samples. Samples are taken from the roof, ribs, and floor following a procedure set forth in
MSHA’s General Coal Mine Inspection Procedures Handbook. (Ex. R-22 at 33-39). Steven
Kattenbraker, a mine safety consultant and former MSHA Field Office Supervisor, testified on
behalf of Peabody and described the procedures used by inspectors to determine if sufficient rock
dust has been applied; samples should be taken from representative areas of the roof, ribs, and
floor and the inspector should note if an area is too wet to sample. (Tr. 183-95). He believed
that it was unusual for the roof and ribs to be too wet to sample at a given location when the floor
is sufficiently dry to sample. (Tr. 193). Typically, if the roof and ribs are too wet, then the floor
is too wet as well. Id.
Discussion and Analysis
Peabody contends that because the inspector did not take a band sample and only took
spot samples from the floor, the rock dust survey was deficient and the citations must be vacated.
There is no question that Inspector DiLorenzo did not take band samples as specified in the Coal
Mine Inspection Procedures Handbook because all the samples except one were taken from the
mine floor. The issue is whether that fact alone should invalidate the samples.
The safety standard does not require that band samples be taken. In Consolidation Coal
Co., Commission Judge Jerold Feldman held “[w]hen an MSHA inspector departs from
recommended procedure by collecting floor samples instead of band samples as representative of
mine conditions, the Secretary must bear the burden of demonstrating the samples are
representative.” 22 FMSHRC 455, 465-66 (Mar. 2000) (ALJ). Judge Feldman vacated the order
alleging a violation of section 75.403 because the inspector sampled areas on the mine floor that
the inspector believed looked “really bad” rather than random samples. Id.
I find that the conditions described in Citation Nos. 8420857 and 8420858 violated
section 75.403. I agree with Judge Feldman’s analysis of the issue. I find that the evidence
establishes that Inspector DiLorenzo took random samples from the floor. (Tr. 140-42, 151).
There is no evidence that he looked for areas where the layer of rock dust appeared to be
especially thin and that he collected the samples from those locations. He followed the
inspection handbook except he did not sample from the ribs and roof. There is nothing in the

36 FMSHRC Page 789

record to suggest that, in following this procedure, he obtained results that were unrepresentative
of the mine environment. I find that the Secretary established a violation in each instance.7
The violations were non-S&S. At the hearing, Inspector DiLorenzo agreed that only one
miner would be affected and not ten as he alleged in the citations. (Tr. 144, 149). I reduce the
gravity of the violations.
I find that the Secretary did not establish that the violations were the result of Peabody’s
high negligence. Both violations occurred in return air courses. These areas are only regularly
traveled by weekly examiners, who are required to travel the length of one entry. (Tr. 148, 162,
165). There is no evidence as to how long the cited conditions existed. The inspector did not
issue the citations based upon his visual observations. He did not determine that the area needed
to be sampled because the rock dust levels appeared to be low. When the area became return air
courses, the area was no longer active but coal dust could have been deposited in the area. The
only justification for the high negligence determination was Inspector DiLorenzo’s general
testimony concerning Peabody’s compliance history under section 75.403. (Tr. 145-46; Ex. G26).
The citations are MODIFIED to reduce the number of people affected by the violations
and to reduce the negligence to moderate. A penalty of $2,000.00 is appropriate for each of these
violations.
E. Order No. 8416329; LAKE 2010-39
On June 17, 2009, Inspector DiLorenzo issued Order No. 8416329 under section
104(d)(2) of the Mine Act, alleging a violation of section 75.364(b)(4) of the Secretary’s safety
standards.8 (Ex. G-19). The order states, in part, that an inadequate examination was conducted
of the Main West seals on June 15, 2009. He determined that there were 12 inches of water at
the #3 seal, 17 inches of water at the #6 seal, 14 to 17 inches of water at the #7 seal and up to 44
inches of water at the #8 seal. The order states that the pumps were de-energized at the time of
the inspection.
Inspector DiLorenzo determined that an injury was reasonably likely and that any injury
could reasonably be expected to result in lost workdays or restricted duty. Further, he
determined that the violation was S&S, the operator’s negligence was high, and that one person
would be affected. Section 75.364(b)(4) requires that at least once every seven days, “an
examination for hazardous conditions” shall be made by a certified person “at each seal along
return and bleeder air courses and at each seal along intake air courses. . . .” 30 C.F.R. §
75.364(b)(4). The Secretary proposed a penalty of $4,099.00 for this order.

7

Peabody did not argue that there were insufficient numbers of noncompliant samples
to establish violations of the standard.
8

The subject order is dated June 18, 2009, but Inspector DiLorenzo testified that his
inspection was actually on June 17, 2009. (Tr. 215).

36 FMSHRC Page 790

Background
Inspector DiLorenzo testified that the water at the #8 seal spanned the entire entry and
spread outby toward the #7 seal for a distance of 45 feet. (Tr. 199; Ex. G-19). The water pumps
in the area were de-energized and all the power cords were unplugged. (Tr. 204, 242). The
inspector checked the record books which indicated that flooding was reported in the area on
June 8, 2009, but the record for the most recent examination on June 15, 2009, reported no
hazards in the area. (Tr. 203; Ex. G-20). Inspector DiLorenzo assumed that an adequate
examination of the seals did not occur on June 15 because the water he observed on June 17 must
have been present on June 15. (Tr. 215).
Peabody presented testimony concerning the chronology of events leading up to the time
of the inspection. Peabody presented evidence that during a weekly examination of the area on
June 8, 2009, Andrew Herndon, an examiner for Peabody, discovered that the area in front of
several seals was flooded, including the #7 and #8 seals. (Tr. II 48).9 He recorded this condition
in the record book. It was later documented in this book that pumping in the area was “in
progress.” (Ex. G-22). Herndon’s next examination of the area was during the midnight shift on
June 15. The water that was present on June 8 was no longer present; there was no water in the
area at the time of his examination. (Tr. II 48). He was able to examine the face of the #8 seal
and he put the date, time, and his initials upon the card at the seal face. (Tr. II 47).
During the midnight shift on June 16, Pumper John Lane was in the area to do
permissibility examinations of the pumps. (Tr. II 19-20). He testified that the pumps were
running and there was no flooding in front of the #8 seal. He de-energized the pumps in the area
because he saw a broken discharge line just inby the main sump. (Tr. II 20-21). He needed to
take this action to repair the discharge line, which took about two hours. (Tr. II 21-22). He
restarted the pumps before he left the area.
Lane returned to the area on the midnight shift of June 17 to complete his permissibility
examinations. He testified that the pumps were running and the area was not flooded. (Tr. II
23). He examined the explosion-proof, permissible electrical box called the “suitcase” and the
surrounding electrical cables. (Tr. II 23-24). He wrote the date, time, and his initials upon the
suitcase. The pumps were running and the area was not flooded when he left the area. Id.
Inspector DiLorenzo conducted an inspection of the Main West seals during the afternoon
shift on June 17. His escort was Randall Hammond. (Tr. II 58). As the inspection party entered
the area, Hammond noticed that the cat heads (plugs) at the electrical distribution box were
disconnected and laying on top of the box. (Tr. II 59-60). When the inspection party arrived at
the seals, the pumps were not working and the area was flooded. The flooding that was present
at the time of MSHA’s inspection was not present the last time Lane was there on the midnight
shift earlier that day. (Tr. II 25-26).

9

The transcript was renumbered the second day of the hearing. Transcript references
designated with “II” refer to the second day of the hearing.

36 FMSHRC Page 791

Discussion and Analysis
The area at the #8 shield was about 6 miles from the closest active area of the mine. This
cited area was the lowest point at the mine and the #8 seal was at the bottom. A series of pumps
were present to pump water out of the area, which was a continuous process. (Tr. II 10). If the
pumps do not operate, the area will flood. (Tr. II 14-15). If water in front of seals impedes the
examiner’s ability to safely perform his weekly examination, a violation of section 75.364(b)(4)
is established.
I find that the Secretary did not establish a violation of section 75.364(b)(4). The fact
that the area was flooded at the time of Inspector DiLorenzo’s inspection does not establish that
the area was flooded during the previous weekly examination. The Secretary did not establish
that the area was flooded at the time examiner Herndon conducted his examination on June 15.10
Inspector DiLorenzo assumed that the water that was present on June 17 was present on June 15.
(Tr. 215). Proof that conditions existed at the time of an MSHA inspection is, by itself,
insufficient evidence to infer that the condition existed at the time of the examination. See e.g.
Big Ridge, Inc. 33 FMSHRC 718-19 (March 2011) (ALJ).
I credit the testimony of John Lane, Andrew Herndon, and Randall Hammond as to the
chronology of events between June 8 and June 17. I find that their testimony was lucid, logical,
and trustworthy. I find that the cited area was not flooded during Herndon’s previous weekly
examination and the area was not flooded when Lane left the area on June 17. The evidence
establishes that Herndon conducted a proper weekly examination of the seals and that he placed
the date, time, and his initials in the area. The Secretary did not establish that there were
hazardous conditions present at the time of Herndon’s examination. Consequently, Order No.
8416329 is VACATED.
F. Order No. 8416348; LAKE 2010-39
On July 1, 2009, Inspector DiLorenzo issued Order No. 8416348 under section 104(d)(2)
of the Mine Act, alleging a violation of section 75.364(b)(4) of the Secretary’s safety standards.
(Ex. G-23). The order states, in part, that an inadequate examination was conducted of the Main
10

At the hearing, the principal focus was on the #8 seal because that seal is at the lowest
elevation and water in the cited area flows down to the #8 seal. (Tr. 198, 213). In his brief, the
Secretary for the first time focused on the #6 seal. (Sec’y Br. 29-34). He argues that the water
Inspector DiLorenzo discovered at the #6 seal on June 17, 2009, could not have developed to a
depth of 17 inches in the time since the Lane and Herndon were in the area. He argues that a
significant amount of water must have been present at the #6 seal when the last examination took
place. He bases this argument on the configuration of the pumps, water lines, and sumps. I
reject this argument because there is not enough evidence in the record to make this finding. The
Secretary bears the burden of proof. It also presupposes that water would simply sit in front of
the #6 seal and not flow down to the lower seals. Herndon credibly testified that, when the
pumps were de-energized, the area in front of the seals would flood within a matter of hours.
(Tr. II 16, 22).

36 FMSHRC Page 792

West seals on June 29, 2009. A water level line with condensation below it was observed over 5
feet high on the #8 seal causing the surface plaster to crack and flake off. Water was leaking
from the face of the seal and the condition of the mortar between the blocks evidenced that the
cited condition existed for an extended period of time. The #4, #5, #6, and #7 seals were also
observed with waterlines and condensation created by water impounded behind the seals. No
hazards were listed in the weekly examination book.
Inspector DiLorenzo determined that an injury was reasonably likely and that any injury
could reasonably be expected to result in lost workdays or restricted duty. Further, he
determined that the violation was S&S, the operator’s negligence was high, and that one person
would be affected. The Secretary proposed a penalty of $4,099.00 for this order.
Background
When Inspector DiLorenzo traveled to the #8 seal on July 1, he saw that it leaked water.
(Tr. 225). The surface plaster on the seal was cracking and flaking off up to the water line.
There were also red/orange deposits running down the front of the seal. (Tr. 209). Other seals
also had water lines with condensation below these lines. He determined that water had backed
up behind several seals. The inspector concluded that Peabody’s examiners were not performing
adequate examinations because the hazard was not recorded and the conditions present would
prevent an examiner from conducting an examination.
Lane conducted a weekly examination of the area on June 22, 2009, and he observed no
hazards. (Ex. G-25). Andrew Herndon conducted another weekly examination on June 29 and
he testified that he did not observe any hazards. (Tr. II 50). At the time of Herndon’s
examination, water was flowing out of the drain pipe at the bottom of the #8 seal. (Tr. II 51).
Herndon testified that he did not observe any water leaking out of the seal and he did not see any
water lines upon the seals, which would indicate that water was building up behind the seals.
Discussion and Analysis
Based upon the evidence it presented, Peabody maintains that the Secretary failed to
establish a violation of the safety standard. Inspector DiLorenzo issued the order because water
was present behind the seals and was leaking through the mortar on July 1, 2009. (Tr. 209). He
believed that Peabody should have known of the condition and that the weekly examiner failed
to record the condition and immediately correct it. Herndon testified that when he conducted the
weekly examination on June 29, 2009, water was coming through the pipe at the bottom of the
seal and was not leaking through the mortar. (Tr. II 51). There was no sign that water was
building up behind any of the seals. (Tr. II 51, 54). Any water lines visible across the face of the
seal were from water that previously accumulated in front of the seals when the area flooded.
There had been a flood in front of the seals on June 17. (Tr. II 30, 54).
As with the previous order, I find that the Secretary did not establish a violation. I
incorporate my analysis of Order No. 8416329 into my analysis of the present order. Peabody
does not dispute that if water is leaking out of the face of a seal or if water backs up behind a seal
a hazardous condition is present that must be reported and corrected. (Peabody Br. 59; Tr. II 51).

36 FMSHRC Page 793

As with the previous order, I credit the testimony of Peabody’s witnesses as to the chronology of
events. The #8 seal is at the lowest point in the area and there is a pipe at the bottom of that seal
that drains water from the area behind the seals. This pipe functioned correctly on June 22 and
June 29 when weekly examinations were conducted. When Inspector DiLorenzo inspected the
area on July 1, something prevented the water from flowing through the pipe and water backed
up behind the seals. I credit the testimony of Peabody’s witnesses that this condition did not
exist at the time of the weekly examinations and that the area can flood in a matter of hours if the
pumping and drainage systems are not working.11 For the reasons discussed above, Order No.
8416348 is VACATED.
II. SETTLED CITATIONS AND ORDERS
A number of the citations and orders at issue in these cases settled. By order dated June
14, 2013, I approved the parties’ settlement of Order Nos. 8416419 and 8421022 in Docket No.
LAKE 2010-39 and ordered Peabody to pay a penalty of $13,632.00. By order dated June 14,
2013, I approved the parties’ settlement of 49 citations issued under section 104(a) of the Mine
Act in Docket No. LAKE 2010-106 and ordered Peabody to pay a penalty of $122,920.00.
III. APPROPRIATE CIVIL PENALTIES
Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. I reviewed the Assessed Violation History Report, which is not
disputed. (Ex. G-26). At all pertinent times, Peabody was a large mine operator and the
controlling company, Peabody Energy Corporation, was also a large operator. The violations
were abated in good faith. The penalties assessed in this decision will not have an adverse effect
on Peabody’s ability to continue in business. The gravity and negligence findings are set forth
above.

11

The Secretary argues that Peabody should have known that the drainage system that
was in place “was not draining the water behind the seals efficiently enough and that excessive
pressure was being placed on the #8 seal, which could damage it.” (Sec’y Br. at 37). That issue
is beyond the scope of this proceeding. The issue before me is whether the Secretary established
that Peabody violated section 75.364(b)(4) by failing to perform an adequate weekly
examination.

36 FMSHRC Page 794

IV. ORDER
Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
Citation/Order No.

30 C.F.R. §

Penalty

75.400
75.363(a)
75.364(b)(4)
75.364(b)(4)

$12,000.00
2,000.00
Vacated
Vacated

75.1403-5(g)
75.403
75.403

Vacated
2,000.00
2,000.00

LAKE 2010-39
8421014
8420824
8416329
8416348
LAKE 2010-106
8421043
8420857
8420858
TOTAL PENALTY

$18,000.00

For the reasons set forth above, the citations are MODIFIED, or VACATED as set forth
above. Black Beauty Coal Company is ORDERED TO PAY the Secretary of Labor the sum of
$18,000.00 within 30 days of the date of this decision. 12

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

12

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.

36 FMSHRC Page 795

Distribution:
Gregory Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
800, Denver, CO 80202-5708 (Certified Mail)
Arthur M. Wolfson, Esq., Jackson Kelly, 3 Gateway Center, Suite 1500, 401 Liberty Ave.,
Pittsburgh, PA 15222 (Certified Mail)
RWM

36 FMSHRC Page 796

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

March 4, 2014
MARK GRAY,

Complainant

v.
NORTH FORK COAL CORPORATION,
Respondent

:
:
:
:
:
:
:
:
:

DISCRIMINATION PROCEEDING
Docket No. KENT 2010-430-D
BARB-CD-2009-13

Mine ID: 15-18340
Mine: Mine No. 4

ORDER GRANTING IN PART RESPONDENT’S MOTION TO AMEND NOTICE OF
HEARING; DENYING COMPLAINANT’S MOTION TO ALLOW PRESENTATION OF
ADDITIONAL LAY AND EXPERT EVIDENCE AT RE-TRIAL; AND RESERVING
RESPONDENT’S MOTION TO COMPEL DISCOVERY
Before:

Judge Rae

This case is before me upon a Complaint of Discrimination under section 105(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c). The Respondent has filed a
Motion to Amend the Notice of Hearing and a Motion to Compel Discovery. The Complainant
has filed a Response in Opposition to the Motion to Amend the Notice of Hearing, and a Motion
to Allow Presentation of Additional Lay and Expert Evidence at Re-Trial.
Procedural History
Gray petitioned for remand of my decision issued on October 20, 2011 based upon my
pre-trial order of December 8, 2011 in which I denied Gray’s request to introduce the written
reports and testimony of Larry Miller and Peter Belcastro, two handwriting experts. Gray’s brief
in support of his petition for remand filed with the Commission on January 17, 2012 states that
“the ALJ improperly prohibited two expert witnesses from testifying … about two purported
written warnings” issued by North Fork to Gray. In his brief, Gray goes on to state that his case
was “heavily dependent on the expert testimony” and that their exclusion was an abuse of
discretion, their exclusion warranting a new trial. The only two witnesses identified or referred
to in his assignment of error and request for remand at the Commission level were Miller and
Belcastro. No issues other than the exclusion of this evidence were raised in Gray’s brief or his
petition for remand filed on November 29, 2011.
The issue of the exclusion of the two handwriting experts was accepted for discretionary
review by the Commission. On August 22, 2013, the Commission issued a remand directing

36 FMSHRC Page 797

further proceedings in accordance with its ruling. It agreed with Gray that “the excluded
evidence is the ‘centerpiece of [the] case.’” In its decision, the Commission went to great
lengths to discuss the exclusion of the testimony of these two identified handwriting specialists
as being improper. The majority hypothesized that potentially different credibility
determinations would have been made by me with respect to management and non-management
witnesses for North Fork and against Gray had there been evidence that the two written
counseling warnings issued to Gray had involved forgery. Despite the fact that there was nondocumentary evidence that supported the testimony of management and non-management
personnel regarding verbal counseling as well as poor performance issues, the majority1 opined
that the expert testimony concerning a possible tracing of a signature on the written warnings
would have led to a different outcome. In sum, the majority of the Commission issued a remand
order on the sole issue of whether the two handwriting experts should have been allowed to
testify which they answered in the affirmative. No other issue was accepted for remand, raised
sua sponte or included in its remand order.
Following a conference call I held with counsel on January 13, 2014, counsel for North
Fork raised the issue of the scope of the hearing to be held pursuant to the remand order. See Ex.
1 Trans. CC. During that conference, I stated that it was my intention to take the testimony of
the two expert witnesses and any witness(es) North Fork deemed necessary to rebut the expert
testimony. Counsel for Gray disagreed with this interpretation of the remand order and indicated
that he wished to call additional lay and expert witnesses. Thereafter, North Fork submitted a
motion on January 22, 2014 to amend the Notice of Hearing to state with more specificity that
the issue for hearing will be limited to the expert testimony from Belcastro and Miller and any
rebuttal North Fork may have thereto. On January 24, 2013, a second conference call was held
with counsel during which Gray’s attorney raised the issue of the scope of the hearing once
again, indicating he had both a lay witness and one expert witness he wished to present at
hearing. I informed counsel that a responsive pleading to North Fork’s motion would suffice to
raise the issue for a ruling by the court. He requested until February 12 to file his response.
Counsel for North Fork agreed to extend the due date of the response until February 12 and I so
ordered his response and any other motions to be filed by February 12, 2014. Ex. 2 Trans. of
CC. Two days beyond the ordered due date, on February 14, 2014, Gray submitted his Response
in Opposition to North Fork’s Motion to Amend the Notice of Hearing and filed his own motion
to allow the presentation of additional lay and expert testimony. Both Gray’s Response and
Motion raise the same issues and are consolidated in this Order.2
1

Chairman Jordan issued a dissenting opinion in which she opined that the majority’s
finding that a different result would have obtained had the handwriting experts testified was
“highly speculative.” She points out that Belcastro’s opinion was equivocal at best as to whether
there was a forgery. The opinion goes on to state that even the testimony of an individual
involved in the alleged forgery could be credited as to other aspects of his testimony and that the
alleged forgery has no relation to the testimony of management and non-management employees
who are not linked to the written warnings, particularly as it relates to the consistent statements
that no deep cuts were made at the mine or that Gray was a poor performer.
2

North Fork also raised the issue of discovery of documentation of Gray’s attorney’s fees
at the conference calls and in its Motion to Amend as well as in a Motion to Compel. I reserve
ruling on the issue of discovery at this time as more fully explained below.

36 FMSHRC Page 798

Discussion and Analysis
Scope of Review
As set forth above, Gray filed a petition and supporting brief for discretionary review
raising the exclusion of Miller and Belcastro as witnesses at hearing. Grays’ requested relief was
a reversal of the decision and remand “for the taking of additional evidence, including the
testimony of Gray’s expert witnesses” and a new trial. In support of his requested relief, Gray
addresses squarely and solely the importance of the handwriting expert testimony to his case and
the inability to present his case without it. This is the issue that the Commission accepted for
review. While the majority opinion speculates on the possibility of a differing assessment of
credibility of witnesses and outcome, it does so only to the extent that the two expert witnesses
should have been permitted to testify and their reports admitted. The remand was issued in
accordance therewith. No other issue was discussed or raised by the Commission sua sponte.
Commission Procedural Rule 2700.70(g) provides “review shall be limited to the issues
raised by the petition, unless the Commission directs review of additional issues pursuant to
§2700.71.”3 30 U.S.C. §823(d)(2)(A)(iii). The Commission has held that the Mine Act and
procedural rules preclude the consideration of issues raised even in briefs filed in support of
review not included in the petition as outside the scope of review. Saab v. Dumbarton Quarry,
22 FMSHRC 491 (Apr. 2000). See also Broken Hill Mining Co., 19 FMSHRC 673 (Apr. 1997);
Fort Scott Fertilizer-Cullor Inc., 19 FMSHRC 1511 (Sept. 1997) and Rock of Ages, 20 FMSHRC
106 (Feb. 1998). “Sweeping” language contained in a petition for review will not broaden the
scope of review where the issue is exclusion of evidence. Saab at 495. Those issues not
accepted for review or raised by the Commission are considered final as of the date of the ALJ’s
decision and become the final decision of the Commission within 40 days thereof if not accepted
for review. 30 U.S.C. §823(d)(1).
Gray’s petition for review was based upon the exclusion of the expert testimony. The
first mention of presentation of any other specific evidence upon rehearing beyond that of the
two handwriting expert witnesses was during the January 13, 2014 conference call. The new
witnesses proposed by Gray in no way involve the issue of whether Gray’s signature on the
written counseling forms are forgeries which was the issue upon which the experts would have
provided testimony and written reports. Thus, these additional witnesses relate to issues which
became final 40 days after issuance of my decision of October 20, 2011, well over two years ago.
In accordance with the decision in Saab, there is no rational analysis under which Gray’s general
3

Commission Procedural Rule 2700.71 provides: “[a]t any time within 30 days after the
issuance of a Judge’s decision, the Commission may, by the affirmative vote of at least two of
the Commissioners present and voting, direct the case for review on its own motion. Review
shall be directed only upon the ground that the decision may be contrary to law or Commission
policy or that a novel question of policy has been presented. The Commission shall state in such
direction for review the specific issue of law, Commission policy, or novel question of policy to
be reviewed. Review shall be limited to the issues specified in such direction for review.” 29
C.F.R. §2700.71.

36 FMSHRC Page 799

prayer for a “new trial” broadens the scope of review beyond the issue of the inclusion of the
expert witness testimony from Miller and Belcastro.
The lay witness who Gray specifically named and has provided an affidavit of his
expected testimony, supposedly will now testify years later to the issues of whether Gray
complained to management of deep cuts. Michael Creech will also supposedly testify as to
whether Gray was a poor worker or whether management wanted to be rid of him for making
safety complaints. Gray also seeks to introduce the expert testimony of Tracy Stumbo regarding
“mine safety.” There is a statement in Gray’s motion that miners “ordinarily” do not tell
inspectors about unsafe conditions and that deep cuts would be bolted before an inspector would
know of them. However, lacking is an affidavit or statement of expected testimony confirming
what exactly Stumbo would testify to.
The Commission made clear in its decision remanding the case that the issue on review
was that Gray should have been permitted to pursue the issue of credibility of North Fork’s
witnesses “by presenting the expert testimony at the hearing.” (Emphasis added.) Assuming
Stumbo would testify regarding the issue of deep cuts and complaints made to inspectors
generally, these issues as well as the ones raised by the proposed lay witness are not within the
scope of review directed by the Commission and must be denied.
F.R.C.P. 59 and 60(b)
In addition to asserting that the scope of the remand order embraces the right to call
additional witnesses, Gray argues that Federal Rules 59 and 60(b)(2) should allow for a new trial
based upon newly discovered evidence.4 Gray’s Mot. at 6.
Fed. R. Civ. P. 59(a) empowers the judge to grant a new trial, to take additional
testimony, amend findings of fact or conclusions or make new ones. In order to seek a new trial,
the movant must file a motion with affidavits within 28 days of entry of judgment. The opposing
party is then provided 14 days to file opposing affidavits. Fed. R. Civ. P. 59(b). My decision
was issued on October 20, 2011. Gray’s motion to allow additional witnesses was filed on
February 14, 2014, 28 months later. Gray’s petition for discretionary review was filed on
November 21, 2011, also more than 28 days after my decision was issued. Even if one were to
interpret the rule to mean that the motion could be filed within 28 days to the Commission rather
than the trial court, Gray’s petition for review would not have met the statutory requirements of a
motion for new trial under Rule 59. Not only was it filed more than 28 days after the decision
was issued but it did not include affidavits from the proposed witnesses from whom Gray would
elicit new evidence. Gray’s motion fails under Fed. R. Civ. P 59.
Rule 60(b) affords grounds for relief from a final judgment or order under certain
circumstances. Gray seeks relief under Rule 60(b)(2) for newly discovered evidence not
discovered in time to move for a new trial under Rule 59(b). One of the requisite elements of
filing for a new hearing under Rule 60(b)(2) is that the request is made no more than one year
4

Gray also cites Commission Procedural Rule 54 in support of reopening the hearing.
That rule pertains to providing notice of hearing at least 20 days prior to hearing and is not
applicable here.

36 FMSHRC Page 800

after the entry of judgment or order or the date of the proceeding. Fed. R. Civ. P. 60(c)(1). The
Commission and federal case law interpret the time limitation as an absolute requirement.
Tolbert v. Cheney Creek Coal Corp., 12 FMSHRC 615 (Apr. 1990); Warren v. Garvin, 219 F.3d
111, 114 (2d Cir. 2000).
The testimony Gray seeks to introduce at rehearing, other than that of Belcastro and
Miller, addresses issues not raised in his request for review or embraced within the scope of the
Commission’s order for review. It is, therefore, time-barred as final judgment as to all other
issues was entered 40 days after the issuance of the October 20, 2011 decision by operation of
law. 30 U.S.C. §823(d)(1). See also Pittsburg & Midway Coal Mining Co., Supra.
In addition to the time requirement, Rule 60(b) imposes several other statutory
requirements to obtain a new trial based upon newly discovered evidence. The evidence must
have been in existence at the time of trial but not in the movant’s possession. It could not have
been obtained in time for trial or in time to move for a new trial under Rule 59 even by
exercising due diligence, the evidence must not be merely cumulative and, finally, it must be
shown that it would change the result. Fed. R. Civ. P. 60(b)(2); Darwin Stratton & Son, Inc., 26
FMSHRC 787 (Oct. 2004).
Michael Creech is the lay witness named in Gray’s motion. Creech states in his affidavit
that he was employed by North Fork for 2 years and worked with Gray for some time before
Gray was fired, had seen deep cuts being taken and had been told to bolt faster than Gray to
make him look “bad.” He “heard” an unidentified member of management say they wanted to
be rid of Gray because of his complaints. Creech stated he did not come forward with the
information at the time Gray was discharged because he was still working at the mine and he was
in fear of losing his job. Creech Aff. Gray states in his motion that he spoke with Creech and
other unidentified employees prior to trial who “would not tell the truth about deep cuts.” Gray’s
Mot. at 5 n.4. Examining these facts, it appears that Gray was likely in possession of this
information prior to trial, particularly Creech’s information.
Gray makes no claim, nor is there any evidence that he attempted to subpoena Creech at
hearing or secure his presence or testimony in any other manner. Moreover, since Creech was
employed by North Fork for 2 years and was working at the mine prior to Gray’s discharge
which occurred on May 15, 2009, he would no longer have been employed there by May 2011,
at the latest. His fear of reprisal would no longer have been present. His date of departure from
North Fork preceded the date of my decision of October 20, 2011 by approximately 5 months.
Gray still had 28 days thereafter to file for a new hearing under Rule 59 based upon Creech’s
information. Gray makes no claim that he attempted in any way to secure an affidavit from
Creech within this time frame or at any other time prior to his signing his February 11, 2014
affidavit - just 2 days before Gray submitted his motion. Not only does it appear that Gray failed
to exercise due diligence in procuring Creech’s testimony for hearing, but he also failed to
exercise due diligence in procuring it in a timely manner to seek a new trial under Rule 59 after
the decision was issued. No explanation is given by Gray for this failure. It also appears that the
information was in his possession at the time he sought discretionary review with the
Commission in November 2011 and he did not raise the issue there either in support of his
request for a new trial. It appears on its face that the need for Creech’s testimony, including

36 FMSHRC Page 801

hearsay statements, is an idea that bloomed as an afterthought in view of the court’s and
Commission’s decisions. Reopening of litigation on the grounds that the Complainant could not
have foreseen a claim made by him would be rejected by the court without an absent witness is
inappropriate. See Hoyt R. Matise Co. v. Zurn, 754 F.2d 560, 568 n.14 (5th Cir. 1985);
Washington v. Patlis, 916 F.2d 1036 (5th Cir. 1990).
A motion for a new trial is an extraordinary form of relief. Washington v. Patlis, Supra.
Assuming Creech’s testimony was deemed admissible, it cannot be concluded that it would
change the outcome. There are no indicia of reliability attached to Creech’s affidavit. It does
not indicate when the purported deep cuts were made that he observed, who in management was
aware of them, who ordered them, or on what shift they occurred. Similarly, he does not indicate
which member of management purportedly told him to work faster than Gray or to whom or
when Gray made safety complaints. The hearsay statement that he “heard a member” of
management say the company wanted to fire Gray for his complaints also lacks sufficient
specificity. The affidavit as a whole lacks any specific information or facts that would lend it
any credibility despite the fact that Creech made his affidavit long after any fear of reprisal was
removed and for the specific purpose of assisting Gray in seeking the extraordinary relief of a
new trial.
Aside from the issue of credibility, Creech’s information would not necessarily change
the outcome for other reasons. I did not assess the credibility of North Fork’s witnesses over
Gray’s based solely on the fact that they testified consistently with one another. Without
reiterating my findings in detail here, some of the facts that I looked at were that each of the
miners who would have been involved in making and/or bolting the alleged deep cuts denied one
had been made, that Gray’s bolting partner had been verbally counseled along with Gray for his
poor performance, that Gray had told his partner that he had been counseled in the past for poor
performance not related to slow bolting, that his partner had never heard Gray make any safety
complaints or fail to perform unsafe work, that based upon the geological conditions cuts were
not made in excess of 20 feet, and that the very day Gray was terminated he did not make a
complaint to MSHA Inspector Doan who was inspecting Gray’s bolter on Gray’s shift. Five of
the witnesses who testified for North Fork had no involvement with the alleged forgery or the
counseling warnings. There was independent documentary evidence that Gray was counseled
for poor performance not only limited to slow bolting. Additionally, Gray made statements to
his roof bolting partner that he had an attorney who would file discrimination charges if he was
fired and denied unemployment benefits, providing motive to falsely report deep cuts. In sum,
there is no indication that Creech’s testimony would change any of my credibility determinations
or the ultimate outcome either on the issue of whether Gray engaged in protected activity or on
North Fork’s affirmative defense.
For the foregoing reasons, I find that Gray’s request to present the testimony of Creech
(or any heretofore unnamed miners) under Rule 60(b) must be denied.
Gray also requests the appearance of Tracy Stumbo who he identifies as an expert in
mine safety. While an affidavit of Stumbo’s testimony is not offered, Gray alludes to his
testifying that deep cuts could have been made in the mine despite the geologic conditions. In
the conference call of January 13, 2014, counsel stated that there was no evidence on the issue

36 FMSHRC Page 802

from the complainant at trial and they wish to call an expert witness “just generally about taking
deep cuts and whether or not that means you will have a roof fall.” Trans. of CC Jan 14, 2014.
Again, this appears to be an afterthought of Gray’s in light of the decision that perhaps he should
have addressed that issue at hearing. This is not a proper basis for granting extraordinary relief.
Furthermore, there is nothing in Gray’s motion regarding his proposal to tender Stumbo as a
witness that meets the requirements of Rule 60(b). Gray does not address the issue of whether he
was in possession of Stumbo’s expected testimony prior to trial or why he could not have
presented this testimony at hearing through Stumbo or another witness had he exercised due
diligence. There is nothing offered to lead to the belief that the information Gray seeks to
introduce now is unique and known only to Stumbo. Counsel’s representations during the
conference call suggest his information would be general in nature and known to any person
familiar with the geologic conditions and mining practices in Kentucky. This issue could easily
have been addressed at trial. There is also no reason to find that the information would have
changed the result. The information is only one basis upon which I made credibility
determinations of the witnesses who appeared at trial. Even assuming taking a deep cut would
not have caused a roof fall, it would not affect my credibility determinations or relate to whether
Gray engaged in protected activity or that North Fork presented a substantiated affirmative
defense. It would serve, at most, only to impeach testimony on a non-determinative point.
Evidence offered only for impeachment purposes is not the type of newly discovered evidence
upon which to grant a new trial. See Bruno, 11 FMSHRC at 153; Baxter Int’l, Inc. v. Morris, 11
F.3d 90 (8th Cir. 1993); Durango Gravel, 21 FMSHRC 1079 (Oct. 1999).
In sum, Gray has not met the requirements of Rule 59 or Rule 60(b) granting a new trial
to present additional testimony or evidence from any witness other than Miller and Belcastro.
The scope of the remand was limited to the testimony (and written reports) of these two
handwriting experts based upon a finding that their exclusion was improper. It allows for
additional discovery and further proceedings directly related to the testimony of Belcastro and
Miller. I interpret that to include the identification and discovery pertaining to any witnesses
North Fork may offer in rebuttal to Belcastro’s and Miller’s testimony as well as introduction of
any experts’ written reports. All other issues became final after 40 days of issuance of the
October 20, 2011 decision.
North Fork has requested an Amended Notice of Hearing to specify that the scope of the
rehearing is limited to the testimony of Miller and Belcastro. North Fork also requests that Gray
be held to a requirement that he state with certainty within 60 days of hearing whether or not
Belcastro will testify. It also asks for an order to compel a response to discovery propounded
upon Gray.

36 FMSHRC Page 803

ORDER
For the foregoing reasons, Gray’s Motion to Allow Presentation of Additional Lay and
Expert Evidence at Re-Trial and his general request for a new trial or trial de novo is DENIED.
North Fork’s Motion to Amend the Notice of Hearing to limit the trial to the testimony of
Miller and Belcastro and their written expert reports being offered by Gray and evidence in
rebuttal thereto by North Fork is GRANTED.
North Fork’s request that Gray be compelled to confirm that Belcastro will testify at
hearing 60 days prior to hearing is GRANTED.5
North Fork’s request in its Motion to Amend and its Motion to Compel discovery is
RESERVED at the present time in view of this decision and order.6

/s/ Priscilla M. Rae
Priscilla M. Rae
Administrative Law Judge
Distribution:
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522
Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY
41858
Stephen M. Hodges, Penn, Stuart & Eskridge, P.O. Box 2288, Abingdon, VA 24212

5

The hearing is currently scheduled to commence on May 6, 2014. In order to afford
both parties ample opportunity to complete discovery and preparation, the hearing may be
continued upon motion by either party.
6

Because this Order limits the issues at hearing to the handwriting experts and rebuttal
thereto, discovery shall also be so limited. The Respondent may desire to tailor its discovery
accordingly. I will withhold ruling on that portion of Respondent’s Motion to Amend and its
Motion to Compel and Complainant’s Response thereto until this Order becomes final.
Respondent may renew its motion to compel thereafter. The issue of penalties, should Gray
prevail, will be addressed post-hearing, however, I tend to agree with Complainant that his
attorney’s fees at this stage of the proceedings are not discoverable unless Respondent can offer
authority to the contrary.

36 FMSHRC Page 804

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER, SUITE 290
875 GREENTREE ROAD
PITTSBURGH, PA 15220
TELEPHONE: 412-920-7240 / FAX: 412-920-8689

March 4, 2014
ELK RUN COAL COMPANY,
Contestant
v.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

:
:
:
:
:
:
:
:
:
:
:

CONTEST PROCEEDING
Docket No. WEVA 2013-1298-R
Notice of Safeguard No. 8154999;
08/01/2013

Mine: Powellton Deep Mine
Mine ID: 46-09163

ORDER DENYING THE SECRETARY OF LABOR’S
MOTION TO DISMISS NOTICES OF CONTEST
Before: Judge Steele
The instant proceeding is before me on Elk Run Coal Company’s (“Elk Run” or
“Contestant”) “Notice of Contest,” regarding a safeguard (No. 8154999) issued by the Secretary
pursuant to Section 314(b) of the Act (30 U.S.C. §874(b) and 30 C.F.R. §75.1403-1. The
Secretary of Labor, Mine Safety and Health Administration (“Secretary”) filed a “Motion to
Dismiss Notices of Contest” on September 27, 2013. After consideration of the arguments of the
parties and for the reasons set forth below, the Secretary’s Motion is hereby DENIED.
The Notice of Contest was filed with respect to Safeguard 8154999 was issued on August
1, 2013. The inspector allegedly noted bottom irregularities at the mine and issued the safeguard
to prevent mud, ledges, and water accumulation in travel-ways.
The Mine Act permits the Secretary to issue “safeguards adequate, in the judgment of an
authorized representative of the Secretary, to minimize hazards with respect to transportation of
men and materials….” See 30 U.S.C. § 874(b). “Once issued, the safeguard operates as a
mandatory standard for that mine.” Oak Grove Resources, LLC, 2013 WL 4140414, *3 (July 25,
2013). That is, from that point forward, failure to comply with safeguard will result in a citation
or order just as if the operator had violated a promulgated mandatory standard.
There is no question that the Commission has jurisdiction to decide on the validity of a
safeguard after the issuance of a citation or order related to that safeguard and the proposal of a
civil penalty. See e.g Southern Ohio Coal Co., 14 FMSHRC 1 (Jan. 1992); see also Secretary’s
Motion to Dismiss at 3-6. The issue in this proceeding is whether the Commission has

36 FMSHRC Page 805

jurisdiction to determine the validity of a safeguard if no subsequent citation or order has been
issued.
The undersigned finds that Congress granted the Commission the necessary authority to
hear this contest. The Mine Act confers upon Commission Judges jurisdiction to hear a variety
of cases. See 30 U.S.C. §815(b)(2)(temporary relief orders); (30 U.S.C. §817(e)(contests to
imminent danger orders); 30 U.S.C. 815(c)(complaints of discrimination); 30 U.S.C.
§821(complaints for compensation). In this instance, the relevant jurisdiction is authorized in
Section 105(d) (30 U.S.C. §815(d)).1
Further, “where the statute creates Commission jurisdiction, it endows the Commission
with a plenary range of adjudicatory powers to consider issues, to make findings of fact and
conclusions of law, and to render relief – in short, to dispose fully of cases committed to
Commission jurisdiction.” Drummond Company, Inc., 14 FMSHRC 661, 674 (May 1992).
There is no explicit grant of authority in the Mine Act empowering the Commission to
consider the validity of safeguards. However, in addition to explicit authority, the Commission
possesses implied authority to hear related issues. For example, the Commission has held (with
Court of Appeals concurrence) that section 105(d) grants implied authority to grant declaratory
relief, as appropriate, in contest proceedings. Kaiser Coal Corp., 10 FMSHRC 1165, 1171 (Sep.
1988); and Climax Molybedenum Co. v. Secretary, 703 F.2d 447, 452 (10th Cir. 1983).
1

That section 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 findings 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 issuance.
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.

36 FMSHRC Page 806

Similarly, the Commission held in Drummond that it had the implied authority to examine an
MSHA Program Policy Letter based, in part, on the Mine Act’s grant of power to review
“question[s] of law, policy or discretion,” and to direct review sua sponte of matters that are
“contrary to…Commission policy” or that present a “novel question of policy.” Drummond 14
FMSHRC at 674-675 citing 30 U.S.C. §823(d)(2)(A)(ii)(IV) & (B).
I find that the instant proceeding presents just such an instance of implied authority. The
authority to hear a citation or order implies the authority to examine the underlying safeguard. In
this way, a safeguard is analogous to the situation in Drummond, where the Commission found
that the ability to hear contest proceedings implied the authority to examine a Program Policy
Letter issued by the Secretary which informed MSHA’s decision in proposing penalties. 14
FMSHRC at 673-676. If a policy issued by the Secretary can form the basis for a citation or
order then, under Section 105(d), the Commission has authority to hear a challenge to that
issuance. Here, a safeguard serves as the first step in the issuance of a citation and as a threat of
civil penalty. In fact, with the requirement that an operator correct the hazardous condition, a
safeguard is analogous to a non-assessable citation. In light of this close nexus between a
safeguard and a citation or order, I find that the Commission has authority to hear this case.
Furthermore, due process and public policy also weigh in favor of finding Commission
authority to hear such cases.
In considering due process, it is important to note that even if no citation or order is
issued with respect to a safeguard, that safeguard is already constraining or otherwise adversely
affecting the operator. As noted supra, the safeguard acts as a mandatory standard at the subject
mine. The operator is required to take potentially time-consuming or expensive actions to ensure
that it complies with this new “standard.” In short, the Secretary’s actions with respect to a
safeguard place some burden on the rights of a private individual (in this case a private
corporation). I am concerned that without recourse to the Commission, an operator would have
no way to challenge this government action and would suffer some harm to its rights.
In the instant case, Contestant was required to change its behavior and to take potentially
expensive and time-consuming actions based on a mandatory directive by a federal inspector.
As a result, there must be some forum at which Contestant can apply for relief. It is impossible
that an individual can be constrained by the government and maintain no avenue of appeal.
In light of this infringement on an operator’s prerogatives, there must be some court or
agency with jurisdiction over a safeguard even if there is no citation or order. If the Commission
does not have jurisdiction to grant relief in this matter, then the Contestant must have recourse to
an Article III tribunal. For the reasons stated supra, it is clear that Congress intended that the
Commission, rather than a federal court, have jurisdiction over this matter. The federal courts
agree. As the D.C. District court stated, when the “Secretary acts in a manner which adversely
affects an operator, the proper procedure for review of that act [is] to proceed first to the
Commission and then to the appropriate Court of Appeals.” See Bituminous Coal Operators’
Ass’n, Inc. v. Marshall, 82 F.R.D. 350, 353 (D.D.C. 1979). Therefore, in the interest of due
process, the Contestant must have some recourse to judicial review and that judicial review
should come from the Commission.

36 FMSHRC Page 807

Beyond serving the interest of due process, the Commission’s exercise of authority over
the instant proceeding also supports the purpose of the Act. As Congress noted, “the first
priority and concern of all in the coal or other mining industry must be the health and safety of
its most precious resource – the miner.” 30 U.S.C. §801(a). Mandatory standards, safeguards,
and other protections afforded by the Act should be implemented in light of this goal to protect
the health and safety of miners.
In the instant situation, if the validity of the safeguard cannot be challenged until a
citation or order is issued, an operator is confronted with a perverse incentive. If the operator
believe that the safeguard is invalid it must choose to either comply with the safeguard and sit on
its rights indefinitely (incurring delay and costs as a result) or to willfully violate the safeguard to
gain access to the Commission. Under the latter approach, it is possible that miners would
needlessly be exposed to hazards that might not otherwise arise. It order to protect its rights, an
operator may be forced to place miners in harm’s way. Surely the Mine Act does not require
such an absurd result. Exercising authority to hear the challenge to the safeguard now prevents
such a situation from occurring.
Finally, the Commission’s exercise of authority over the instant proceeding ensures that
the validity of the safeguard is determined in a timely manner. If the Commission waits until a
citation or order has been issued pursuant to a safeguard, the delay between the issuance and the
challenge can be extreme. For example, in Oak Grove Resources, LLC, supra, the time between
the issuance of the safeguard and the subsequent challenge was 22 years. Over the course of
years an operator could spend large amounts of money complying with an invalid safeguard.
More importantly, when the operator can finally challenge the standard, the inspector and
everyone involved with the safeguard could be retired or deceased making the issue impossible
to properly adjudicate. Therefore, the Commission’s ability to hear this case now protects the
interest of fair and timely adjudication.
The Secretary presented several arguments for why I do not have authority to hear this
challenge to the safeguard. However, I do not find any of these arguments to be compelling. I
will address each argument in turn.
First, the Secretary cited Kaiser Coal Corp. for the proposition that the Commission is an
adjudicatory agency of limited jurisdiction. (Secretary’s Brief at 3 citing 10 FMSHRC at 1169).
Based on this holding, the Secretary averred that Section 105(d) delineates the scope of
Commission authority to hear cases. (Id.). Specifically, the Secretary noted that Section 105(d)
lists the situations in which the Commission has authority to hear a case and that, based on the
principle of expressio unius, exclusio alterius, failure to specifically list safeguards shows that
Congress did not intend the Commission to hear those cases. (Id. at 4 citing Marx v. Gen.
Revenue Corp., --- U.S. ---, 133 S. Ct. 1166, 1181 (2013)).
The Secretary is correct that a safeguard is not amongst the areas over which the
Commission has explicit authority under Section 105(d). A safeguard is not a citation, order, or
a violation. However, as noted supra, a safeguard forms the basis for a citation, order, or a civil
penalty and therefore the Commission maintains the implied authority to consider it.

36 FMSHRC Page 808

It should be noted that my authority to hear matters not explicitly stated in Section 105(d)
is not only supported by relevant Commission case law, but also by the Secretary’s position in
this case. In its brief, the Secretary argued that the validity of a safeguard is reviewable by the
Commission (albeit after a citation or order is issued). (Secretary’s Brief at 3-6). Nowhere in
the Mine Act does Congress explicitly grant the Commission the right to review the validity of a
safeguard. The Commission has determined that this authority is implied based on the fact that
citations and orders are written pursuant to safeguards.
If, as the Secretary argues, the Commission can only consider issues explicitly stated in
Section 105(d), then the Commission must never have authority to consider the validity of a
safeguard. Presumably if that were the case, the Commission could determine the validity of a
citation or order issued pursuant to a safeguard (under the express grant of authority to do so in
Section 105(d)) but lacks any authority to consider the validity of the underlying safeguard. This
would analogous to the more common situation, when a citation issued with respect to a
mandatory safety standard. In such a case the Commission may rule on the propriety of a
citation or order but the validity of the underlying standard is reserved for the Federal Courts.
However, as even the Secretary recognizes, the Commission does have authority to hear
challenges to safeguards. Therefore, there must be implied authority outside the list in Section
105(d). Further, I see no statutory reason for the proposition that this implied authority should be
limited to situations where a citation or order has already been issued. The implied authority to
consider a safeguard exists and therefore may be exercised now.
The Secretary next argued that Commission precedent supports his interpretation that I
have no authority to consider the validity of the safeguard at this time. (Secretary’s Brief at 8).
However, in doing so the Secretary first concedes that the Commission has never directly
addressed that issue. (Id.). Despite this, the Secretary notes that historically, the Commission
has only considered the validity of a safeguard when a citation is being contested. (Id.).
Specifically, the Secretary pointed to several decisions where ALJs summarily refused to review
safeguards without subsequent citation or order. (Id. citing Beckley Coal Mining Co., 9
FMSHRC 1454 (Aug. 1987)(ALJ Melick); Colorado Westmoreland, Inc., 10 FMSHRC 1236
(Sep. 1988)(ALJ Morris); and Jim Walters Resources, Inc., 18 FMSHRC 380 (Mar. 1996)(ALJ
Merlin).
While I recognize that, as a general matter, Commission ALJs have historically waited
for a citation or order to be issued pursuant to a safeguard before discussing the validity of that
safeguard, I do not believe that there was a statutory necessity for this restraint. As noted supra,
the implied authority to consider the validity of a safeguard exists at issuance. To the extent that
Commission ALJs chose not to exercise their authority over challenges to safeguards, I believe
they failed to fully appreciate the extent of the Commission’s authority in these matters. As a
result, I do not find these cases to be persuasive.
Finally, the Secretary argued that the Commission has implied that a review of a
safeguard is not available until a citation has been issued. (Id. citing Southern Ohio Coal Co. 14
FMSHRC at 13 (“An operator may challenge a safeguard’s validity in a contest or civil penalty
proceeding arising from the issuance of a citation or order based on that safeguard.”)).

36 FMSHRC Page 809

Contrary to the Secretary’s reading of Southern Ohio Coal Co., I do not believe that the
Commission has implied that it did does have authority to hear challenges to the validity of
safeguards at any time. In Southern Ohio Coal Co., the Commission stated that the validity of a
safeguard is reached after a citation or order is issued, but it did not intend to make a sweeping
declaration regarding its rights and powers. The section cited by the Secretary was merely dicta
explaining how the issue generally arises in a portion of the decision discussing the burden of
proof. No issue in that case turned on the timing of the challenge as an order had already been
issued on the subject safeguard. 14 FMSHRC at 2-3. As the Secretary has conceded, the
Commission has never decided on the issue of whether a citation or order is needed to challenge
the validity of a safeguard (though perhaps it is time for the Commission to weigh in). Further,
as noted supra, such authority exists at the time of issuance. I do not believe the Commission
intended to deny the existence of that authority in a single sentence of a decision where the
ultimate issue here was not in contention.
For the reasons set forth above, the Secretary’s Motion to Dismiss Contestant’s Notices
of Contest is hereby DENIED. The parties are directed to mutually agree to a discovery and
deposition schedule so that a hearing can be set.
/s/ William S. Steele
William S. Steele
Administrative Law Judge
Distribution (Certified Mail)
Benjamin Chaykin, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 1100
Wilson Boulevard, 22nd Floor, West, Arlington, VA 22209-2247
Christopher D. Pence, Esq., & Eric L. Silkwood Esq., Hardy Pence, PLLC, 500 Lee Street East,
Suite 701, PO Box 2548, Charleston, WV 25329-2548

/tjb

36 FMSHRC Page 810

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER, SUITE 290
875 GREENTREE ROAD
PITTSBURGH, PA 15220
TELEPHONE: 412-920-7240 / FAX: 412-920-8689

March 6, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on behalf
of J. DON ARNOLD,
Complainant
v.
BHP NAVAJO COAL COMPANY,
AND ITS SUCCESSORS,
Respondent

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DISCRIMINATION PROCEEDING
Docket No. CENT 2013-541-D
Case No. DENV-CD 2013-11

Mine: Navajo Mine
Mine ID: 29-00097

ORDER DENYING RESPONDENT’S MOTION FOR SUMMARY DECISION
Before: Judge Lewis
STATEMENT OF THE CASE
This case is before me upon a complaint of discrimination filed by J. Don Arnold
(“Arnold” or “Complainant”) against BHP Navajo Coal Company, and its successors (“BHP” or
“Respondent”) pursuant to Section 105(c) of the Federal Mine Safety and Health Act of 1977
(the “Act”), 30 U.S.C. § 815(c).
On November 7, 2013, Respondent entered its Motion for Summary Decision. In such,
Respondent states that there are no genuine issues of material fact, and the real question as a
matter of law is the narrow issue of whether holding an employee out of service while the
alleged conduct is investigated with no delay in pay or benefits is an “adverse action” as
contemplated by the statute. By motions dated November 26 and November 29, 2013, the
Secretary requested that the original complaint be amended to include the fact that Arnold’s
performance review was modified from “meets requirements” to “needs improvement,” and he
was issued a written warning concerning the alleged conduct. The Secretary responded to
Respondent’s Motion on December 16, 2013. He argues that Respondent’s Motion should be
denied because the actions taken by Respondent do constitute adverse action, and Respondent’s
motion should accordingly be denied.

36 FMSHRC Page 811

LAW
According to 29 C.F.R. 2700.67(b),
A motion for summary decision shall be granted only if the entire record,
including the pleadings, depositions, answers to interrogatories, admissions, and
affidavits, shows:
(1) That there is no genuine issue as to any material fact; and
(2) That the moving party is entitled to summary decision as a matter of law.
The Commission “has long recognized that [ ] ‘summary decision is an extraordinary
procedure,’ and has analogized it to Rule 56 of the Federal Rules of Civil Procedure, under
which the Supreme Court has indicated that summary judgment is authorized only ‘upon proper
showings of the lack of a genuine, triable issue of material fact.”’ Hanson Aggregates New York,
Inc., 29 FMSHRC 4, 9 (Jan. 2007)(quoting Energy West Mining Co., 16 FMSHRC 1414, 1419
(July 1994)). In reviewing the record on summary judgment, the court must evaluate the
evidence in “the light most favorable to…the party opposing the motion.” Hanson Aggregates at
9 (quoting Poller v. Columbia Broad. Sys., 368 U.S. 464, 473 (1962)). Any inferences “drawn
from the underlying facts contained in [the] materials [supporting the motion] must be viewed in
the light most favorable to the party opposing the motions.” Hanson Aggregates, 29 FMSHRC at
9 (quoting Unites States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
ISSUE
The issue is whether Respondent’s suspension of Complainant with no loss in pay or
benefits during the completion of an investigation into Complainant’s alleged failure to follow
safety procedures, Respondent’s issuance of a written warning regarding such, and/or
Respondent’s modification of Complainant’s performance review from “meets requirement” to
“needs improvement” singly or in combination constitute “material adverse action” raising a
cognizable claim under § 105(c) of the Act.
CONCLUSIONS OF LAW
Under Section 105(c) of the Act,
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 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 subject of medical evaluations and potential transfer under a
standard published pursuant to section 101 or because such miner, representative

36 FMSHRC Page 812

of miners or applicant for employment has instituted or caused to be instituted any
proceeding under or related to this Act or has testified or is about to testify in any
such proceeding, or because of the exercise by such miner, representative of
miners or applicant for employment on behalf of himself or others of any
statutory right afforded by this Act.
A complainant alleging discrimination under the Act establishes a prima facie case of
prohibited discrimination by presenting evidence to support a conclusion that the individual
engaged in protected activity and that the adverse action complained of was motivated in any
part by that activity. Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2
FMSHRC 2786, 2799-2800 (Oct. 1980), rev’d on other grounds sub nom.; Consolidation Coal
Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary of Labor on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803, 817-818 (Apr. 1981). In 2006, the Supreme Court
stated that the adverse action must be “material adverse action.” Burlington Northern & Santa
Fe Railway Co. v. White, 548 U.S. 53, 68 (2006). The employee “must show that a reasonable
employee would have found the challenged action materially adverse, which in this context
means it well might have dissuaded a reasonable worker from [engaging in protected activity].”
Id.
The legislative history for 30 C.F.R. § 815(c) is clear in its intentions:
If our national mine safety and health program is to be truly effective, miners will
have to play an active part in the enforcement of the Act. The Committee is
cognizant that if miners are to be encouraged to be active in matters of safety and
health, they must be protected against any possible discrimination which they
might suffer as a result of their participation.
S. Rep. No. 95-181, at 35-36 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human
Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 623-24 (1978).
The undersigned also acknowledges that the chilling effect on employees cannot be presumed;
rather, it must be made on a case-by-case basis taking into consideration both objective and
subjective evidence. Secretary of Labor on behalf of Poddey v. Tanglewood, 18 FMSHRC 1315,
1320-1321 (Aug 1996). Based on the law and circumstances, the undersigned finds that while
any of the actions taken by Respondent in isolation may not have constituted material adverse
action, the totality of these actions do.
Respondent argues that the Complainant suffered no material adverse action because 1)
he suffered no termination of employment or economic loss, 2) the change in his evaluation did
not affect his overall rating, and 3) the written warning given to him was minor. See
Respondent’s Motion for Summary Decision, p. 1; Respondent’s Supplemental Motion for
Summary Judgement, p. 1-2; Respondent’s Reply in Support of Motion for Summary Decision,
p. 3. First, while it is true that Complainant was neither terminated nor did he suffer any lapse in
pay or benefits, Respondent fails to mention that Arnold was first suspended indefinitely without
pay pending an investigation. See Secretary’s Response to Motion for Summary Decision. It
was not until later that Complainant learned that there would be no delay in his pay. Arnold

36 FMSHRC Page 813

stated that although he was eventually paid, he was worried during the investigation that he
would be unable to support his family. See Declaration of J. Don Arnold, ¶ 18.
Second, Respondent argues that the change in Arnold’s evaluation did not affect his
overall rating and, regardless, the evaluations are not kept in an employee file; but, interestingly,
Respondent was able to provide multiple performance evaluations in support of its case. See
Respondent’s Supplemental Motion for Summary Decision. This includes an evaluation done
seven months prior to the one at issue here. Id. If Respondent is not keeping these forms for any
personnel purposes, it begs the question of why Respondent would be able to produce it.
Finally, Respondent contends that the warning issued to Arnold was minor. However,
the Secretary points out that the written warning is considered a “strike” against Arnold in
Respondent’s progressive discipline system. Secy’s Resp., p. 10. This was confirmed by
Arnold, who states that he feels like he has a target on his back. Dec. of Arnold, ¶ 11. Further,
this “minor warning” will remain in Arnold’s personnel file throughout the remainder of his
employment. Secy’s Resp., p. 10. Respondent conveniently fails to mention this.
Respondent also argues that this case should be dismissed in light of judicial economy
since, it argues, Arnold has suffered no material adverse action. However, as Congress so
eloquently stated, miners are the best means for effectively maintaining safety in the mines.
Actions which serve to chill their participation must be closely evaluated. In his Declaration,
Arnold states that other employees have told him that they will now think twice before making
safety complaints. ¶ 17. Given all of the foregoing, the undersigned finds that Respondent’s
action, in toto, may very well deter a reasonable employee from engaging in protected activity.
ORDER
It is hereby ORDERED that Respondent’s Motion for Summary Decision is DENIED.
The parties are further ORDERED to PROVIDE a few mutually agreeable dates for hearing to
the office of the undersigned within 20 days of the date of this Order.

/s/ John Kent Lewis
John Kent Lewis
Administrative Law Judge
Distribution:
Karla Jackson Edwards, Esq., Office of the Solicitor, U.S. Department of Labor, 525 S. Griffin
Street, Suite 501, Dallas, TX 75202-5036
J. Don Arnold, 3711 Highland View Drive, Farmington, NM 87402
Charles W. Newcom, Esq., Sherman & Howard, LLC, 633 17th Street, Suite 3000, Denver, CO
80202

36 FMSHRC Page 814

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 Pennsylvania Avenue NW, Suite 520N
Washington, D.C. 20004

March 19, 2014

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

OAK GROVE RESOURCES, LLC,
Respondent

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CIVIL PENALTY PROCEEDINGS
Docket No. SE 2013-301
A.C. No. 01-00851-315187-01
Docket No. SE 2013-352
A.C. No. 01-00851-317727
Docket No. SE 2013-368
A.C. No. 01-00851-319550
Docket No. SE 2013-399
A.C. No. 01-00851-320606-01
Mine: Oak Grove Mine

ORDER SCHEDULING BRIEFING
Before: Judge Feldman
The hearing in the captioned civil penalty matters filed against Oak Grove Resources,
LLC (“Oak Grove”) is currently scheduled for September 16, 2014, in Birmingham, Alabama.
Docket No. SE 2013-368 concerns 104(d)(2) Order No. 8520664,1 issued on October 3, 2012.
The order alleges a repeated flagrant violation under Section 110(b)(2) of the Federal Mine
Safety and Health Act of 1977 (“the Act”), 30 U.S.C. § 820(b)(2), of the mandatory safety
standard in section 75.400, that is attributable to high negligence.2

1

Docket Nos. SE 2013-301, SE 2013-352 and SE 2013-399 have been consolidated with
Docket No. SE 2013-368 because they contain citations that are relevant to Order No. 8520664.
2

Section 75.400 provides:
Coal 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.

36 FMSHRC Page 815

Section 110(b)(2) provides:
Violations under this section that are deemed to be flagrant may be
assessed a civil penalty of not more than $220,000.[3] 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) (emphasis added).
Although the Commission addressed questions concerning appropriate considerations for
determining repeated flagrant violations in Wolf Run Mining Co., 35 FMSHRC 536 (Mar. 2013),
many issues concerning the application of section 110(b)(2) essentially are matters of first
impression and remain unresolved. In Wolf Run, the Commission concluded that the plain
language of section 110(b)(2) supports that past violative conduct may be considered in
determining whether a cited condition represents a “repeated failure to make reasonable efforts
to eliminate a known violation of a mandatory health or safety standard . . . .” 35 FMSHRC at
541, citing 30 U.S.C. § 820(b)(2). However, the Commission did not address whether such
previous violations must concern unwarrantable violations of the same mandatory standard, as
well as the time period for the occurrence of such previous violations. The Commission had no
basis for doing so as the Secretary did not clearly articulate during oral argument the required
parameters concerning prior conduct.4
In Wolf Run, the Commission noted the Secretary’s obfuscation. The Commission stated:
The Secretary’s interpretation [of a repeated flagrant violation]
has changed several times during the course of this litigation . . . .
[W]hile still before the judge, the Secretary broadened the
proposed standard to include previous non-S&S and nonunwarrantable failure violations, and also seemingly narrowed
the standard to require that at least some of the previous violations
be “substantially similar” . . . . His interpretation before the
Commission has evolved again . . . . [The Secretary’s briefing now
includes a] “fail[ure] to make reasonable efforts to eliminate at
least one previous violation prior to failing to make reasonable
efforts to eliminate the violation alleged to be flagrant.”
35 FMSHRC at 539 n. 5. The absence of a clearly articulated proffered standard for determining
a repeated flagrant violation based on prior conduct precluded the Commission from addressing
whether the Secretary’s application of section 110(b)(2) was a reasonable interpretation of its
3

The maximum civil penalty for a violation that is not designated as flagrant is
$70,000.00.
30 U.S.C. § 820(a)(1).
4

In Wolf Run, the Commission remanded the proceeding to Commission ALJ Barbour. The
parties now have advised Judge Barbour that they have reached a settlement agreement.

36 FMSHRC Page 816

provisions, or whether the Secretary’s enforcement standard required a notice and comment
rulemaking.
The subject Order No. 8520664, alleging a repeated flagrant violation, states:
Combustible material in the form of float coal dust and dry hard
packed coal fines were allowed to accumulate on the roof, ribs,
footwall, and belt structure of the Main North 3 belt entry. The
hard packed coal fines were in contact with moving roller[s] on the
belt line in multiple locations along the belt entry. The float coal
dust existed on the roof, ribs, footwall, and belt structure from the
Main North 3 Tail Pieces extending outby to crosscut 27. This is
an approximate distance of 2100 feet. Due to the extensive amount
of accumulations and that this belt is examined every shift this
constitutes more than ordinary negligence and is an unwarrantable
failure to comply with a mandatory health and safety standard.
Standard 75.400 was cited 92 times in two years at mine 0100851
(91 to the operator, 1 to a contractor). This violation is an
unwarrantable failure to comply with a mandatory standard.
Even if the Secretary ultimately prevails with respect to the issues of the fact of the
violation and the significant and substantial (“S&S”) and unwarrantable designations for the
cited condition in Order No. 8520664, the hearing in this matter cannot proceed without
determining the proper evidentiary requirements for demonstrating a repeated flagrant violation
under the statutory provisions of section 110(b)(2). Determining the evidentiary requirements
for a repeated flagrant violation will materially advance the disposition of these matters.
Accordingly, IT IS ORDERED that the Secretary file a brief addressing in detail the following
questions:
(1) The degree of gravity is determined by the seriousness of the violation.
Consolidation Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996) (citations omitted).
Is the degree of gravity required for a flagrant designation under section 110(b)(2)
of the Act, 30 U.S.C. § 820(b)(2), greater than the degree of gravity required for
an S&S designation under section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1)?
The Commission long ago noted that the “Act’s overall enforcement scheme . . .
provides for the use of increasingly severe sanctions for increasingly serious violations or
operator behavior.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 828 (Apr. 1981).
Section 104(d)(1) provides, in pertinent part, that an S&S violation is any violation that
“could significantly and substantially contribute to the cause and effect of a . . . mine
safety or health hazard.” Section 110(b)(2) provides, in pertinent part, that a flagrant
violation is “a known violation . . . that substantially and proximately caused, or
reasonably could have been expected to cause, death or serious bodily injury.”

36 FMSHRC Page 817

The Secretary should address the distinction, if any, between the statutory
language in sections 110(b)(2) and 104(d)(1). In addressing this issue, the Secretary
should be mindful of the Commission’s S&S criteria in Mathies Coal Co., 6 FMSHRC 1,
3-4 (Jan. 1984). The Commission noted the proper analysis under its third Mathies
criterion concerning the likelihood of injury “requires that the hazard contributed to
[by the violation] will result in an event in which there is an injury.” U.S. Steel Mining,
6 FMSHRC 1834, 1836 (Aug. 1984), citing 3 FMSHRC at 3-4 (emphasis added).
This analysis is based on a variety of changing conditions normally encountered during
continued mining operations in the presence of an unabated hazard. U.S. Steel Mining,
7 FMSHRC 1125, 1130 (Aug. 1985), citing 6 FMSHRC 1573, 1574 (July 1984).
In addressing the difference, if any, between the degrees of gravity associated with
S&S and flagrant violations, the Secretary should address whether a flagrant violation
must constitute a clear and present danger that requires more than considerations with
respect to continued mining operations. In this regard, the Secretary should be mindful
of the Commission’s holding in Musser Eng’g, Inc., 32 FMSHRC 1257 (Oct. 2010),
discussing the indicia for an S&S designation:
The test under the third element [of Mathies] is whether
there is a reasonable likelihood that the hazard contributed
to by the violation . . . will cause injury. The Secretary need
not prove a reasonable likelihood that the violation itself
will cause injury . . . .
32 FMSHRC at 1280-81.
(2) Is the degree of gravity the same for both reckless designations and for repeated
designations under section 110(b)(2)?
The Secretary should address whether his reliance on a history of previous
violations as a predicate for a repeated flagrant violation relieves the Secretary’s burden
of demonstrating that the subject violation was, or reasonably could have been expected
to be, the substantial and proximate cause of death or serious bodily injury.
(3) Can a repeated flagrant violation be attributed to less than a reckless degree of
negligence in view of the statutory language requiring that it be a known violation
that will substantially and proximately cause death or serious bodily harm?
In addressing this question, the Secretary should consider whether the inexcusable
failure (as required for unwarrantability) to eliminate a known violation that can
reasonably be expected to cause death or serious bodily injury can be attributable to less
than a reckless disregard. See Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987)
(defining unwarrantable conduct as “not justifiable” or “inexcusable”).

36 FMSHRC Page 818

(4) What parameters does the Secretary propose for determining which violations serve
as predicates for a repeated flagrant designation?
In this matter, the Secretary alleges that the subject flagrant violation is based
on a history of previous violations.5 The Secretary should address, with specificity, his
proposed parameters for previous violations with respect to: whether such violations must
be attributable to an unwarrantable failure; whether the violations must be of the same
mandatory standard; whether settled violations lacking an evidentiary record with regard
to their nature and extent are appropriate predicates; and the operative time period during
which these prior violations must have occurred.
(5) The provisions of section 110(b)(2) of the Act are essentially repeated in section
100.5(e) of the Secretary’s implementing regulations. 30 C.F.R. § 100.5(e). The
Commission traditionally resolves questions of deference by applying the two step
test in Chevron v. Natural Res. Def. Council, 467 U.S. 837, 842-44 (1984). Are section
110(b)(2) of the Act and section 100.5(e) of the regulations ambiguous, and if so, is
the Secretary’s interpretation reasonable?
The “flagrant” penalty assessment provision of section 110(b)(2) of the Mine Act
was added by section 8(a) of the Mine Improvement and New Emergency Response Act
of 2006 (“MINER Act”). Section 8(b) of the MINER Act required the Secretary to
promulgate rules to implement the provision. Pub. L. No. 109-236, § 8, 120 Stat. 493
(2006). On March 22, 2007, the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) published a final rule revising its penalty regulations and
“implement[ing] the civil penalty provisions of the [MINER Act].” 72 Fed. Reg. 13592.
Although the Secretary has been delegated with the authority to promulgate a regulation
implementing section 110(b)(2), section 100.5(e) of the regulations simply reiterates the
language of section 110(b)(2) of the Act. In addressing the appropriate level of deference
to be accorded to the Secretary’s interpretation of section 100.5(e) given that it repeats
the statutory language, Commission ALJ McCarthy has noted:
An agency deserves no deference for an interpretation of its
own regulation when the regulation merely parrots the
language of the statute, without implementing it. Gonzales,
supra, 546 U.S. at 257 (2006). In such cases, the agency is
not using its expertise to interpret the law. It is merely
copying or paraphrasing the statutory language. Id. at 258.

5

Although the Secretary has identified three prior alleged generic unwarrantable failure
violations of section 75.400, two of which have settled, the Secretary has not articulated why
these violations were selected as predicates with regard to the nature and extent of the violations
and the time period for their occurrence.

36 FMSHRC Page 819

American Coal Co., 35 FMSHRC 2208, 2257 (July 30, 2013) (ALJ), citing Gonzales v.
Oregon, 546 U.S. 243 (2006). As previously noted, in Wolf Run the Commission did not
address the reasonableness of the Secretary’s criteria for considering prior conduct.
Assuming section 110(b)(2) is ambiguous with respect to the necessary predicates for
a repeated flagrant violation, the Secretary should address the reasonableness of his
proffered interpretation.
(6) Does implementation of the Secretary’s proffered criteria with respect to predicates
for a repeated flagrant violation require a notice and comment rulemaking?
It is well established that a notice and comment rulemaking is required where
a regulation is substantive as opposed to procedural. See Drummond Co., 14 FMSHRC
661, 683-85 (May 1992) (noting that, pursuant to 5 U.S.C. § 553(b)(3)(A), substantive
or legislative rules require advance notice and public comment, while interpretative
rules, general statements of policy, or rules of agency procedure or practice do not).
The Secretary should address whether his proffered basis for a repeated flagrant violation
is substantive or procedural.
ORDER
IT IS ORDERED that the Secretary shall provide a response to the above questions
within 30 days from the date of this Order. IT IS FURTHER ORDERED that Oak Grove
shall respond to the Secretary’s submission within 21 days thereafter. IT IS FURTHER
ORDERED that the Secretary shall have leave to file a reply within 21 days of Oak Grove’s
response. The parties should provide case law, regulatory provisions, and legislative history to
support their respective positions. The parties may provide any relevant additional arguments
outside the parameters of the above questions that they deem relevant.
As a final matter, the MINER Act was promulgated in June 2006. Despite having had
more than seven years to do so, to my knowledge the Secretary has yet to present a cogent and/or
consistent interpretation of the requisite factors contemplated by section 110(b)(2) to establish a
repeated flagrant violation. Consequently, requests for extension of this briefing schedule may
not be favorably entertained.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge

36 FMSHRC Page 820

Distribution:
Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street,
Suite 230, Nashville, TN 37219
R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 401 Liberty
Avenue, Pittsburgh, PA 15222
/tmw

36 FMSHRC Page 821

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER, SUITE 290
875 GREENTREE ROAD
PITTSBURGH, PA 15220
TELEPHONE: 412-920-7240 / FAX: 412-920-8689

March 25, 2013
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
ARMSTRONG COAL CO, INC.,
Respondent

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CIVIL PENALTY PROCEEDING
Docket No. KENT 2013-185
A.C. No. 15-19358-303177

Mine: Parkway Mine

AMENDED ORDER DISMISSING 24 CITATIONS FOR FAILURE OF THE
SECRETARY TO COMPLY WITH AN ORDER OF THE COURT1
Before: Judge Steele
On the 14th day of January, 2014, Respondent filed a Motion for an Order to Show
Cause, stating that the Secretary had been unresponsive to an Order of the Court. The Court
had ordered the parties to confer on stipulations in a pending Motion for Partial Summary
Decision, which concerned jurisdictional matters in 24 of 49 citations issued in Docket No.
KENT 2013-185. 2
As noted in Respondent’s Motion for an Order to Show Cause, a telephone hearing was
held on July 23, 2013, in which the Court informed the parties that more factual information
was required in order to make a ruling on the pending Motion for Partial Summary Decision.
After discussion of the issues, the parties agreed that perhaps certain joint stipulations could be
submitted that would assist the Court in the determination of essential facts. Based on this
agreement, the Court ordered the parties to confer and submit joint stipulations within 45 days,
or by September 6, 2013.

1 This Order has been amended to list the 24 of 49 citations that were referenced in the

March 24, 2014 order.

2 These citations are 8509488, 8509500, 8509756, 8509489, 8509759, 8509757,

8509751, 8509490, 8509752, 8509491, 8509760, 8509758, 8509753, 8509492, 8509493,
8509754, 8509494, 8509495, 8509496, 8509497, 8509761, 8509498, 8509755, and 8509499.

36 FMSHRC Page 822

The record does not indicate that the Secretary made any attempt to confer with the Respondent
within the timeframe ordered. The Order was issued in the summer. Summer became autumn,
and autumn turned into winter. The Secretary remained unresponsive.
Finally, Respondent filed a Motion for an Order to Show Cause on January 14, 2014. In
his response, the Secretary stated, incorrectly, that Respondent’s Motion was predicated on the
Secretary’s refusal to agree to stipulations proffered by Respondent, and admitted that there was
a delay in notifying the Court regarding “the acceptance, or not, of these proposed
stipulations…” The Secretary stated in his response that only two of the 10 proposed
stipulations of Respondent were acceptable and again acknowledged the delay, stating that it
“takes responsibility for the delay.”
On March 11, 2014, the Court issued an Order to Show Cause, directing the Secretary to
show good cause within 11 days for the reason there was a failure to comply with the 45-day
deadline. The Secretary’s only response to this Order was a retransmission of the response to
Respondent’s Motion for an Order to Show Cause. There has yet to be an explanation to the
Court as to why there has been no compliance.
In a prehearing Order, dated February 13, 2013, the parties were obligated to
communicate with each other in good faith regarding substantive issues. The Order stated that
failure to do so was grounds for dismissal of the offending party’s case. Moreover, 29 C.F.R. §
2700.1(b) provides that a judge may be guided by the Federal Rules of Civil Procedure (FRCP)
on procedural matters not regulated by the Commission’s rules. Rule 41(b) of the FRCP
provides for the involuntary dismissal of the action, or any claim, where the plaintiff (here the
Secretary) has failed to comply with a court order.
It is therefore ORDERED that the 24 citations which are the subject of Respondent’s
Motion for Order to Show Cause be dismissed for failure to comply with the Court’s Order to
Confer regarding stipulations.
/s/ William S. Steele
William S. Steele
Administrative Law Judge

36 FMSHRC Page 823

Distribution:
Thomas A. Grooms, Office of the Solicitor, U.S. Dept of Labor, 618 Church St., Suite 230,
Nashville, TN 37219
Mason L. Miller, Miller Wells PLLC, 300 E. Main St., Suite 360, Lexington, KY 40507
Adam K. Spease, Miller Wells PLLC, 710 W. Main St., 4th Floor, Louisville, KY 40202
Daniel Z. Zaluski, Armstrong Coal Co., Inc., 407 Brown Rd., Madisonville, KY 42431

36 FMSHRC Page 824