November 2014
TABLE OF CONTENTS

COMMISSION DECISIONS
11-14-2014

MIZE GRANITE QUARRIES, INC.
ROBERT W. MIZE III; and
CLAYBORN LEWIS Both Employed
by MIZE GRANITE QUARRIES,
INC.

SE 2009-401-M

Page 2801

11-18-2014

THE AMERICAN COAL COMPANY

LAKE 2008-38

Page 2809

ADMINISTRATIVE LAW JUDGE DECISIONS
11-10-2014

NORTHERN ILLINOIS SERVICE
COMPANY

LAKE 2011-1029-M

Page 2811

11-14-2014

SEC. OF LABOR O/B/O FRED
MCKINSEY V. PRETTY GOOD
SAND COMPANY, INC.

SE 2014-344 DM

Page 2843

11-18-2014

SEC. OF LABOR O/B/O THOMAS A.
SIMPKINS V. TK MINING
SERVICES, LLC, and THE
MARSHALL COUNTY COAL
COMPANY, formerly known as
MCELROY COAL COMPANY

WEVA 2015-99-D

Page 2874

11-19-2014

SCH TERMINAL COMPANY, INC.

KENT 2013-413

Page 2883

11-19-2014

DELTA CONCRETE PRODUCTS,
INC.

WEST 2014-117

Page 2903

i

ADMINISTRATIVE LAW JUDGE ORDERS
11-03-2014

BRODY MINING, LLC

WEVA 2014-82-R

Page 2941

11-04-2014

HECLA LIMITED

WEST 2012-760-M-A

Page 3043

11-05-2014

SEC. OF LABOR O/B/O GARY
KITTELSON V. NORTHERN
AGGREGATE INC.

LAKE 2014-597-DM

Page 3047

11-07-2014

SCOTT MCGLOTHLIN V.
DOMINION COAL CORPORATION

VA 2014-233-D

Page 3049

11-14-2014

SCOTT MCGLOTHLIN V.
DOMINION COAL CORPORATION

VA 2014-233-D

Page 3052

11-18-2014

MONA KERLOCK V. ASARCO, LLC WEST 2014-851-DM

11-26-2014

BRODY MINING, LLC

WEVA 2014-82-R

ii

Page 3055
Page 3060

Review was denied in the following cases during the month of November 2014:
Secretary of Labor, MSHA v. Mach Mining, Docket No. LAKE 2009-263, et al (Judge Paez,
September 30, 2014)
Secretary of Labor, MSHA v. Knox Creek Coal Corporation, Docket No. VA 2010-81-R, et al
(Judge Barbour, October 7, 2014)
Secretary of Labor, MSHA v. Emerald Coal Resources, LP, Docket No. PENN 2013-305, et al
(Judge Miller, October 29, 2014)
Secretary of Labor, MSHA v. Extra Energy, Inc., Docket No. VA 2013-511 (Judge McCarthy,
October 17, 2014)

There were no cases in which review was granted during the month of November 2014.

iii

COMMISSION DECISIONS

36 FMSHRC Page 2800

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

November 14, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos.

v.

SE 2009-401-M
SE 2009-402-M
SE 2009-553-M
SE 2009-554-M
SE 2010-849-M
SE 2010-850-M

MIZE GRANITE QUARRIES, INC.
ROBERT W. MIZE III; and
CLAYBORN LEWIS Both
Employed by MIZE GRANITE
QUARRIES, INC.
BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
DECISION
BY THE COMMISSION:
This case comes to the Commission a third time for review under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). The
Secretary of Labor asserts that a supervisory miner was erroneously relieved of the burden of
proving his inability to pay an individual penalty. We conclude that substantial evidence in the
record supports the Judge’s finding on inability to pay and the resultant penalty adjustment.
Therefore, we affirm the decision.
I.
Factual and Procedural Background
In 2009, Mize Granite Quarries, Inc. (“MGQ”), a corporation, operated a stone quarry
located in Elberton, Georgia. 33 FMSHRC 886, 888 (Apr. 2011) (ALJ). MGQ employed six
regular employees and one foreman, Clayborn Lewis. Tr. 179. Lewis had worked at MGQ for 18
years. Tr. 161. After inspections on January 13 and March 11-12 of 2009, the Department of
Labor’s Mine Safety and Health Administration (“MSHA”) issued eleven citations/orders
against MGQ. MSHA also issued one citation and three orders against the owner of MGQ,
Robert Mize and, separately, against Lewis. MSHA proposed individual penalties pursuant to
section 110(c)

36 FMSHRC Page 2801

of the Mine Act1 against both Mize and Lewis in the amounts of $3,600, $6,000, $4,000, and
$4,000. After a hearing, the Judge dismissed one order but found violations with respect to the
remaining citation and orders against Mize and Lewis. These three violations included total
proposed penalties of $13,600 against Mize and Lewis individually.
After the parties filed post-hearing briefs, the Judge found that evidence of the personal
income and financial responsibilities of Mize and Lewis was germane to the determination of
appropriate penalties under section 110(c) of the Act. Therefore, she ordered Mize and Lewis to
provide documentary evidence relative to their incomes and financial responsibilities.
Unpublished Order Reopening for Submission of Evidence at 1-2 (Mar. 4, 2011). Mize
responded by supplying financial information to the Judge. Lewis, whom Mize had represented
at the hearing, did not respond to the Judge’s order. Thereafter, the Judge assessed three
penalties of $500 each against Mize totaling $1,500 and three penalties of $300 each against
Lewis totaling $900. 33 FMSHRC at 917.
The Secretary petitioned the Commission for review and asserted with respect to both
Mize and Lewis that the Judge had not adequately explained the basis for dismissing one order
and for substantially reducing the penalties for the remaining citation and orders. Upon review,
the Commission affirmed the dismissal of the order but remanded the case for a further
determination of the appropriate penalties on the basis that the Judge erroneously had included
the size of the mine and the penalties levied against the corporation in assessing the individual
penalties. Mize Granite Quarries, Inc., 34 FMSHRC 1760 (Aug. 2012). The Commission also
noted that the March 4, 2011 Order requiring submission of evidence had not been sent to Lewis
directly but had been addressed to him in care of Mize Quarries. Therefore, the Commission
ordered that Lewis should be directly notified of penalties proposed by MSHA and should be
given the opportunity to respond regarding his personal income and financial responsibilities.
The notice was to include a statement that if Lewis failed to provide evidence of income, net
worth, and financial obligations, the Judge could presume that the imposition of the assessed
penalties would not adversely affect his ability to meet financial obligations. Id. at 1766.
On remand, the Judge reevaluated the individual penalties assessed against Mize and
Lewis. Mize Granite Quarries, Inc., 35 FMSHRC 414 (Feb. 2013) (ALJ). The Judge again
assessed penalties against Mize and Lewis in the amounts of $500, $500, and $500 (totaling
$1,500) and $300, 300, and $300 (totaling $900), respectively. The Judge based the continued
reduction for Mize on her review of Mize’s individual income tax return and personal financial
responsibilities. The Judge stated specifically that she had taken the financial information
provided by Mize into account in the reduction of the penalty.
Despite the letter sent to Lewis as a result of the Commission’s initial decision, Lewis did
not submit any information to the Judge. However, the Judge found that, because Lewis was
1

Section 110(c) of the Act provides in relevant part that, whenever a corporate operator
violates a mandatory safety standard, “any director, officer, or agent of such corporation who
knowingly authorized, ordered, or carried out such violation” shall be subject to penalties as an
individual. 30 U.S.C. § 820(c).

36 FMSHRC Page 2802

only a foreman at the operation owned by Mize, Lewis’ ability to pay was no greater than Mize
“and most likely sizably less.” Id. at 417. Therefore, the Judge again assessed penalties totaling
$900 against Lewis.
The Secretary again sought and obtained review by the Commission of the penalties
assessed against both Mize and Lewis. The Commission upheld the Judge’s analysis of the
penalties to be assessed against Mize and Lewis. In doing so, the Commission applied the
substantial evidence test to the Judge’s factual findings. Mize Granite Quarries, Inc., 36
FMSHRC 1813 (July 2014).
Regarding Lewis, the Commission found that documents in the record related to Mize
also constituted sufficient evidence to support the Judge’s evaluation of Lewis’ ability to pay and
the reduction in the penalty. More specifically, the Commission referenced the operator’s tax
return that was in the record and calculated that the average annual salary for MGQ employees
was approximately $21,500. Based on this and other findings, the Commission affirmed the
Judge’s findings with regard to the effect of the proposed penalties on Mize’s and Lewis’ ability
to meet financial obligations as based factually on substantial evidence and not an abuse of
discretion.
The Commission, however, also found that the Judge’s decision on remand misstated the
negligence and gravity findings contained in her initial decision. Consequently, the Commission
again remanded the case and ordered the Judge to consider the penalty assessments in light of the
correct negligence and gravity findings. Id. at 1817.
Upon remand, the Judge reiterated the negligence and gravity findings from the initial
decision. She further found that “in consideration of all section 110(i) factors, including the
negligence and gravity of the violations as stated in my first decision, the amount of the penalties
against both individuals is appropriate and I reiterate my decision.” Mize Granite Quarries, Inc.,
36 FMSHRC 1912 (July 2014) (ALJ).
The Secretary filed and the Commission granted a third petition for discretionary review.
The Secretary did not challenge the reduction in the individual penalty assessed against Mize,
the owner and operator of MGQ, to $1,500. However, the Secretary continues to object to the
Judge’s decision to reduce Lewis’ total penalty from $13,600 to $900.
II.
Legal Principles
Civil penalties under the Mine Act serve an important public purpose: motivation of
conduct. To achieve this purpose, Congress enumerated six statutory criteria for assessment of
penalties against mine operators: the size of the operator’s business, the operator’s history of
previous violations, the operator’s ability to continue in business, the operator’s negligence, the
gravity of the violation, and good faith abatement efforts. 30 U.S.C. § 820(i).

36 FMSHRC Page 2803

As the Mine Act directs, and as the Commission has consistently held, the Commission
makes independent penalty determinations based upon the statutory criteria in section 110(I) of
the Mine Act. See Sellersburg Stone Co., 5 FMSHRC 287, 291-92 (March 1983), aff’d, 736 F.2d
1147 (7th Cir. 1984). The determination of the amount of the penalty for a particular violation is
an exercise of discretion by the Administrative Law Judge but must reflect consideration of all
six statutory criteria of the Act. Id. at 294. In turn, the Commission reviews a Judge’s factual
determinations under the substantial evidence standard. 30 U.S.C. § 823(d)(2)(A)(ii)(I).
Assessments “lacking record support, infected by plain error, or otherwise constituting an abuse
of discretion are not immune from reversal.” U.S. Steel Corp., 6 FMSHRC 1423, 1432 (June
1984); see also Ambrosia Coal & Constr. Co.¸ 18 FMSHRC 1552, 1565 (Sept. 1996).
In applying the criterion of inability to continue in business, the Commission has found
that the burden rests upon the operator to introduce evidence demonstrating that a proposed
penalty would adversely affect its ability to continue in business. Broken Hill Mining, 19
FMSHRC 673, 677-78 (Apr. 1997). Thus, the Commission has held that “[i]n the absence of
proof that the imposition of authorized penalties would adversely affect [an operator's] ability to
continue in business, it is presumed that no such adverse [e]ffect would occur.” Sellersburg,
5
FMSHRC at 294 (citing Buffalo Mining Co., 2 IBMA 226, 247-48 (Sept. 1973)); accord
Spurlock Mining Co., 16 FMSHRC 697, 700 (April 1994). To adjust a penalty based upon an
operator’s inability to pay, therefore, the Judge must have, and must point to, material in the
record bearing upon the operator’s ability to pay.
Congress did not create a set of statutory criteria for the assessment of penalties against
individuals pursuant to section 110(c) of the Mine Act separate from the criteria applicable to
operators under section 110(i). The Commission has held that in assessing penalties under
section 110(c), “judges must make findings on each of the criteria as they apply to individuals.”
Sunny Ridge Mining Co., 19 FMSHRC 254, 272 (Feb. 1997) (emphasis in original). Application
of the ability to continue in business criterion to an individual requires an inquiry into whether
the penalty will affect the individual’s ability to meet his financial obligations. Id.; Steen, emp.
by Ambrosia Coal & Constr. Co., 19 FMSHRC 819, 824 (May 1997). As a result, the present
case rests upon a determination of whether the Judge abused her discretion in finding that the
proposed penalty of $13,600 would adversely affect Lewis’ ability to meet his financial needs
and, consequently, reducing the penalty to $900.
III.
Disposition
The Secretary no longer seeks review of an assessed penalty of $1,500 against Mize, the
owner/operator of MGQ, based upon the financial information provided by him, including the
showing of the income he derives from his privately-owned, seven-employee quarry in rural
Georgia. Nonetheless, the Secretary continues to seek a penalty of $13,600 against Lewis, who
had been an employee at the quarry for 18 years at the time of the violation.

36 FMSHRC Page 2804

Such tenacity apparently results from concern that, because Lewis himself did not submit
financial information, a reduction in the penalty assessed against him would undercut the burden
of proof governing demonstration of an inability to pay. That is not correct. Neither the Judge
nor the Commission made any finding that modifies or diminishes the burden of proving an
inability to pay. The burden of proof is not at issue in this case.2 The question in this case is
whether substantial evidence in the record supports the Judge’s factual determinations upon
which she based her discretionary decision to reduce the penalty.3
The Judge’s assessment in this case is based upon the total record before her. The Judge
drew an inference regarding Lewis’ ability to pay based upon that record.4 Without doubt a
Judge may draw such inferences, provided they are reasonable. Mid-Continent Res., Inc., 6
FMSHRC 1132, 1138 (May 1984); Jim Walter Res., Inc., 28 FMSHRC 983, 989 (Dec. 2006).

2

Citing our decision in Broken Hill Mining Co., 19 FMSHRC 673, 677-78 (Apr. 1997),
the Secretary argues “[t]he burden of proving inability to pay a penalty is on the operator making
such a claim, and in the absence of such proof the ability to pay is presumed.” PDR at 5. This
argument mixes two separate principles to attempt to reach a third principle which goes beyond
anything the Commission has stated. It is true that the operator has the burden of proving
inability to pay a proposed penalty. It is also true that in Broken Hill, the Commission stated that
in the absence of proof that the imposition of a proposed penalty would adversely affect an
operator's ability to continue in business, it is presumed that no such adverse effect would occur.
In the situation of an operator claiming inability to pay, it makes sense to assume that such proof
would be produced by the operator itself. But in the situation of an individual faced with a
section 110(c) penalty, the proof need not be submitted by the individual himself. It is the
existence of the proof in the record which matters rather than the identity of the party submitting
the proof.
3

The Commission ordered the Judge to inform Lewis that, if he failed to provide
financial information, “the judge may presume that the imposition of the assessed penalties
would not adversely affect his ability to meet financial obligations.” 34 FMSHRC at 1766.
The Judge, however, was not required to make such a presumption if evidence in the record
submitted by another person supported a reasonable inference of adverse financial impact upon
Lewis. See supra, n.2. Because the Judge may, indeed must, consider all the relevant evidence in
the record, Lewis’ personal failure to submit evidence of his financial status does not require
imposition of the proposed penalty if evidence in the total record is sufficient to carry his burden
on the inability to pay criterion.
4

An “inference” is “a conclusion reached by considering other facts and deducing a
logical consequence from them.” Black’s Law Dictionary 897 (10th ed. 2014). The Judge may
not have selected the ideal phrasing for the inference as she stated that she would “assume”
Lewis was a man of modest means. Clearly, however, her finding was a conclusion reached by
considering other facts and reaching a logical consequence from them.

36 FMSHRC Page 2805

Such inferences are a fundamental principle of judicial decision making. For example, in
Secretary of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096, 1101 (D.C. Cir. 1998), the
court held:
This case turns not on the construction of regulations or on
statutory interpretation, but on the weighing of evidence and
reasonable inferences made therefrom. Thus, our deference runs
not to the policymaking body, MSHA and the Secretary, but to the
ALJ, the factfinder who oversees the adjudicatory proceedings.
See also Grundy Mining Co. v. Flynn, 353 F.3d 467, 484 (6th Cir. 2003) (quoting Moseley v.
Peabody Coal Co., 769 F.2d 357, 360 (6th Cir.1985)).
The Judge had the authority to draw a reasonable inference from the record before her,
and such a reasonable inference may be overturned only if absence of support in the record
makes the inference unreasonable. See Lavender v. Kurn, 327 U.S. 645, 653 (1946) (“Whenever
facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a
measure of speculation and conjecture is required on the part of those whose duty it is to settle
the dispute by choosing what seems to them to be the most reasonable inference. . . . [T]he
appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being
immaterial that the court might draw a contrary inference or feel that another conclusion is more
reasonable.”); Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Lavender’s principles
apply to our review of administrative findings of fact, just as they support and explain the “great
deference” this Court accords to a district court’s resolution of competing inferences after a civil
bench trial.”); see also id. at 169 (“So long as an inferential leap is tethered to the evidentiary
record, we will accord deference to the finding.”).
The question before the Commission in this case, therefore, is not the burden of proof in
a claim of inability to pay. That law remains settled and undisturbed. The question in this case is
whether the Judge’s inference drawn from the record before her is reasonable. It is.
The Judge’s inference with respect to Lewis was reached in two steps. First, she reviewed
the financial information provided by Mize with respect to Mize himself. She found:
I have reviewed the tax returns for the business for years 2007 and
2009 and found the assessed penalties against the corporation to be
disproportionate to its size and income. Likewise, having reviewed
Mize’s individual income tax returns and his personal financial
responsibilities from the information provided, I find he does not
have sizeable personal net worth and the amount of the penalties
proposed is disproportionate to his income.
35 FMSHRC at 417. Consequently, the Judge assessed a total penalty of $1,500 rather than the
$13,600 proposed by the Secretary.

36 FMSHRC Page 2806

As a second step, the Judge considered whether Mize’s financial information could
reasonably be used to draw an inference regarding Lewis’ financial status. Based upon the facts
of the case, she inferred that his financial well-being also would be adversely affected by the
proposed penalty. As demonstrated in our second consideration of this matter, the records
submitted by Mize show that MGQ paid average wages of approximately $13.34/hour equaling
approximately $21,500 per year. 36 FMSHRC at 1816. Even considering Lewis was the foreman
and presumably paid more than the other miners, twice that average would come to only $43,000
per year. Therefore, under any reasonable scenario, a penalty of $13,600 would be a very
substantial portion of Lewis’ entire yearly wages.5 It was reasonable for the Judge to find that a
penalty likely to consume so much of a miner’s finances for an entire year provides a basis for
finding a substantial detriment to Lewis’ financial status.6

5

Of course, wages are not the only measure of a person’s financial status or ability to
pay. Here, the judge observed Lewis during his testimony, knew of his 18 years as an employee
in a small quarry, and could determine the average income of quarry employees. In light of this
evidence and the financial status of the owner of the quarry, the totality of the record supports a
lesser penalty than the penalty proposed for Lewis.
6

This case is a specific holding based upon exceptional circumstances unlikely to be
replicated in future proceedings. It certainly is not a template for failing to submit financial
information in a case involving an inability to pay issue. As we advised in a prior remand in this
case, if a party fails or refuses to present financial information, a Judge may presume that the
failure is an admission of ability to pay.

36 FMSHRC Page 2807

The body of evidence upon which the Judge found that the owner of MGQ carried the
burden of proving inability to pay constitutes sufficient evidence to support the reasonable
inference that the financial status of a long-term employee also would be adversely affected by
the penalty proposed by the Secretary. We find that the Judge made a reasonable inference based
upon substantial evidence in the record and, therefore, did not abuse her discretion.7
IV.
Conclusion
For the foregoing reasons, the decision of the Judge is affirmed.

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

7

Any other inference would be highly improbable. It is not the common experience of
our society that persons able to pay a $13,600 penalty without severe financial harm would work
for 18 years doing exhausting and potentially hazardous work in a tiny quarry during the cold of
the winter and the heat of a Georgia summer.

36 FMSHRC Page 2808

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

November 18, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. LAKE 2008-38
LAKE 2008-142
LAKE 2008-525

v.
THE AMERICAN COAL COMPANY

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
DECISION
BY THE COMMISSION:
These captioned proceedings arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”) are before the Commission pursuant to the
Commission’s partial grant of The American Coal Company’s (“American”) petition for
discretionary review. Subsequent to our partial grant of review, we stayed briefing pending
further order by the Commission.
In its petition, American contends that three notices to provide safeguard (“safeguards”)
that were issued by the Secretary of Labor pursuant to section 314(b) of the Mine Act, 30 U.S.C.
§ 874(b), are facially invalid: Safeguard Nos. 3538483, 7568565, and 7577893. PDR at 2.
American requests that the Commission vacate citations issued by the Secretary that allege
violations of these safeguards.1 Id.
The Judge concluded that these safeguards are facially valid and denied American’s
motion for summary decision on the issue. The American Coal Co., 33 FMSHRC 2636 (Oct.
2011) (ALJ). The parties then filed a motion to approve settlement of the citations contingent
upon the understanding that American was not waiving its right to subsequently file a petition for
discretionary review with the Commission that challenged the facial validity of the underlying
safeguards. On November 14, 2011, the Judge issued a decision approving the parties’ agreement

1

A total of four citations are at issue. Citation Nos. 6667312 and 7490989 allege
violations of Safeguard No. 3538483. Citation No. 7490559 alleges a violation of Safeguard
No. 7568565. Citation No. 7490851 alleges a violation of Safeguard No. 7577893.

36 FMSHRC Page 2809

to settle the citations. The American Coal Co., 33 FMSHRC 2803, 2833-34 (Nov. 2011) (ALJ).
The Judge ordered payment of a total amended penalty of $9,640 in satisfaction of the four
citations at issue.2 Id. at 2833.
On August 30, 2012, the Commission issued a decision in a separate case involving
American in which we concluded that Safeguard Nos. 3538483, 7568565, and 7577893 are each
facially valid. The American Coal Co., 34 FMSHRC 1963, 1972-80 (Aug. 2012). The principle
of res judicata precludes American from again challenging the facial validity of these safeguards
before the Commission. Faith Coal Co., 19 FMSHRC 1357, 1365 (Aug. 1997). Safeguard Nos.
3538483, 7568565, and 7577893 are each facially valid.
We hereby lift the stay in these cases. The Judge’s decision approving settlement of
Citation Nos. 6667312, 7490989, 7490559, and 7490851 is affirmed.

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

2

The record does not clearly establish the amended penalty amount for each individual
citation. The Commission’s Procedural Rules require settlement motions to include the amount
of the penalty proposed by the Secretary and the amount of the penalty agreed to in settlement
for each violation. Commission Procedural Rule 31(b), 29 C.F.R. § 2700.31(b). We remind the
parties that compliance with our procedural rules is required.

36 FMSHRC Page 2810

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE
1331 PENNSYLVANIA AVE, N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9900 / FAX: 202-434-9949

November 10, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2011-1029-M
A.C. No. 11-02963-263549
Mine: Northern Illinois Service Co.
Portable Mine #1 (Blackrock Quarry)

v.

Docket No. LAKE 2012-0161-M
A.C. No. 11-03104-272174
NORTHERN ILLINOIS SERVICE
COMPANY,
Respondent.

Mine: Northern Illinois Service Co.
Portable Mine #2 (Bedrock Quarry)

DECISION
Appearances:

Sean J. Allen, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, CO, for Petitioner;
Peter DeBruyne, Esq., Peter DeBruyne, P.C., Rockford, IL, for
Respondent.

Before:

L. Zane Gill, U.S. Administrative Law Judge

These cases arise from a petition for assessment of civil penalty filed by the Secretary of
Labor, acting through the Mine Safety and Health Administration, against Northern Illinois
Service Company’s (“NISC”) portable rock crushing plants near Rockford, IL, 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”). They comprise 11 alleged violations distributed between the two
captioned dockets. The Secretary proposed a total penalty of $6,756.00. The parties presented
testimony and documentary evidence at a hearing held in Rockford, IL, starting on January 8,
2013.

36 FMSHRC Page 2811

Procedural History
Prior to the hearing, docket LAKE 2011-1029, consisting of Citation Nos. 6555758,
555759, 6555760, 6555761, 6555762, 6555763, 6555764,1 and 6555766, was consolidated with
LAKE 2012-0161, consisting of Citation Nos. 8662246, 8662247, and 8662248. The ten
remaining citations were litigated at the hearing.
Stipulations
The parties entered the following stipulations into the record at the hearing:
1.

Jurisdiction exists because NISC was an operator of a mine as defined in Section
3(b) of the Mine Act, 30 U.S.C. § 803(b), and the products of the subject mine
entered the stream of commerce or the operations or products thereof affected
commerce within the meaning and scope of section 4 of the Act, 30 U.S.C. § 803.
This issue is not in dispute.

2.

This case involves two crushed and broken limestone mines known as Northern
Illinois Service Portable Mine No. 1 and No. 2, which is owned and operated by
Northern Illinois Service Company.

3.

The mines, MSHA ID Nos. 11-02963 and 11-03104, are subject to the jurisdiction
of the federal Mine Safety and Health Act of 1977.

4.

NISC is an “operator” as defined in § 3(d) of the Federal Mine Safety and Health
Act of 1977, as amended, 30 U.S.C. § 803(d), at the limestone mine at which the
Citations at issue in this proceeding were issued.

5.

The Administrative Law Judge has jurisdiction over these proceedings, pursuant
to Section 105 of the Act.

6.

The subject citations were properly served by a duly authorized representative of
the Secretary upon an agent of NISC on the dates and places stated therein, and
may be admitted into evidence for the purpose of establishing their issuances, but
not for the truthfulness or relevancy of any statements asserted therein.

7.

NISC’s operations affect interstate commerce.

1

Citation No. 6555765 was issued with the other citations in this docket but was vacated
on April 20, 2012. (Resp. Post-Hearing Brief, pg. 1)

36 FMSHRC Page 2812

8.

The exhibits offered by Respondent and the Secretary are stipulated to be
authentic, but no stipulation is made as to their relevance or the truth of the
matters asserted therein. Additionally, both parties maintain the right to object to
exhibits not produced in discovery.
The Citations



Citation No. 6555758 (Exhibit GX-1; Docket LAKE 2011-1029) was issued on June 22,
2011, and alleges a 104(a) violation of 30 CFR § 56.12004, which requires that electrical
conductors exposed to mechanical damage be protected. This citation is characterized as
unlikely to cause injury, potentially affecting a single miner, and arising from moderate
negligence. The Secretary proposed a penalty of $108.00.



Citation No. 6555759 (Exhibit GX-3; Docket LAKE 2011-1029) was issued on June 22,
2011, and alleges a violation of 30 CFR § 57.14107(a), which requires that moving
machine parts be guarded to protect persons from contacting moving parts that can cause
injury. This citation is characterized as unlikely to cause injury, potentially affecting a
single miner, and arising from moderate negligence. The Secretary proposed a penalty of
$807.00.



Citation No. 6555760 (Exhibit GX-5; Docket LAKE 2011-1029) was issued on June 22,
2011, and alleges a violation of 30 CFR § 47.44(b), which requires that operators mark
temporary, portable containers not emptied at the end of each shift with the common
name of the contents. This citation is characterized as unlikely to result in injury, lost
workdays, or restricted duty, as potentially affecting a single miner, and arising from
moderate negligence. The Secretary proposed a penalty of $108.00.



Citation No. 6555761 (Exhibit GX-7; Docket LAKE 2011-1029) was issued on June 22,
2011, and alleges a violation of 30 CFR § 56.14100(b), which requires that defects on
any equipment, machinery, or tools that affect safety be corrected in a timely manner to
prevent the creation of a hazard to persons. This citation is characterized as reasonably
likely to be fatal, potentially affecting a single miner, S&S, arising from moderate
negligence. The Secretary proposed a penalty of $1,795.00.



Citation No. 6555762 (Exhibit GX-9; Docket LAKE 2011-1029) was issued on June 22,
2011, and alleges a violation of 30 CFR § 56.14132(a), which requires that manually
operated horns or other audible warning devices on self-propelled mobile equipment be
maintained in functional condition. This citation is characterized as unlikely to be fatal,
potentially affecting a single miner, and arising from high negligence. The Secretary
proposed a penalty of $1,203.00.



Citation No. 6555763 (Exhibit GX-10: Docket LAKE 2011-1029) was issued on June
22, 2011, and alleges a violation of 30 CFR § 56.14130(i), which requires that seat belts
be maintained in functional condition and replaced when necessary to assure proper

36 FMSHRC Page 2813

performance. This citation is characterized as being reasonably likely to be fatal, S&S,
and arising from moderate negligence. The Secretary proposed a penalty of $1,795.00.


Citation No. 6555764 (Exhibit GX-13: Docket LAKE 2011-1029) was issued on June
22, 2011, and alleges a violation of 30 CFR § 56.9300(a), which requires that berms or
guardrails be provided and maintained on the banks of roadways which drop off enough
to cause a vehicle to overturn or endanger persons in equipment. This citation is
characterized as being reasonably likely to result in lost workdays or restricted duty,
affecting a single person, S&S, and arising from moderate negligence. The Secretary
proposed a penalty of $540.00.



Citation No. 6555766 (Exhibit GX-15: Docket LAKE 2011-1029) was issued on June
23, 2011, and alleges a violation of 30 CFR § 46.9(b)(5), which requires that training
records be kept and include MSHA Form 5000-23, containing a statement by the person
designated in the MSHA-approved training plan and certifying that the miner in question
has received periodic training as required by the training plan. This citation is
characterized as a paperwork violation arising from low negligence. The Secretary
proposed a penalty of $100.00.



Citation No. 8662246 (Exhibit GX-20: Docket LAKE 2011-0161) was issued on
September 27, 2011, and alleges a violation of 30 CFR §56.12006, which requires that
electrical distribution boxes have a disconnecting device for each branch circuit which is
appropriately labeled so that it can be visually checked to see if a device is open and the
circuit is de-energized. This citation is characterized as unlikely to result in lost
workdays or restricted duty, potentially affecting a single person, and arising from
moderate negligence. The Secretary proposed a penalty of $100.00.



Citation No. 8662247 (Exhibit GX-22: Docket LAKE 2011-0161) was issued on
September 27, 2011, and alleges a violation of 30 CFR §56.4201(a)(1), which requires
that fire extinguishers be visually inspected at least once a month to determine that they
are fully charged and operable. This citation is characterized as unlikely to result in lost
workdays or restricted duty, potentially affecting a single person, and arising from
moderate negligence. The Secretary proposed a penalty of $100.00.



Citation No. 8662248 (Exhibit GX-24: Docket LAKE 2011-0161) was issued on
September 28, 2011, and alleges a violation of 30 CFR §56.12028, which requires that
electrical grounding system be tested periodically and records be kept for inspection.
This citation is characterized as unlikely to result in and injury but the injury could be
fatal, potentially affecting a single person, and arising from moderate negligence. The
Secretary proposed a penalty of $100.00.

36 FMSHRC Page 2814

Background Facts
The citations from LAKE 2011-1029 were issued by MSHA inspector Thomas Heft on
June 22 and 23, 2011.2 Those from LAKE 2012-0161 were issued on September 27 and 28,
2011. NISC mines and produces aggregate products from two locations near Rockford, IL. The
two mine properties are identified in the record as Portable Mine No. 1 and Portable Mine No. 2.
The mines had been idle for some time prior to June 22, 2011, and NISC personnel had just
begun the process of examining for items needing attention prior to resuming mining when Heft
appeared at the site to conduct his inspection on June 22, 2011.
Analysis
Common Legal Standards
Negligence
Section 110(i) of the Mine Act requires that in assessing penalties the Commission must
consider, among other criteria, whether the operator was negligent. 30 U.S.C. § 820(i). Each
mandatory standard carries an accompanying duty of care to avoid violations of the standard. An
operator’s failure to satisfy the appropriate duty can lead to a finding of negligence. In this type
of case, we look to such considerations as the foreseeability of the miner’s conduct, the risks
involved, and the operator’s supervising, training, and disciplining of its employees to prevent
violations of the standard in issue. Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-64. See
also, Nacco Mining Co., 3 FMSHRC at 848, 850-51(Apr.1981) (construing the analogous
penalty provision in 1969 Coal Act where a foreman committed a violation), cited in A. H. Smith
Stone Company, 5 FMSHRC 13 (Jan.1983).
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 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. Reckless negligence is present when “[t]he operator displayed
conduct which exhibits the absence of the slightest degree of care.” Id. High negligence is when
“[t]he operator knew or should have known of the violative condition or practice, and there are
no 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.
Low negligence is when “[t]he operator knew or should have known of the violative condition or
2

LAKE 2011-1029 comprises the following citations: Citation Nos. 6555758, 6555759,
6555760, 6555761, 6555762, 6555763, and 6555764 were issued on June 22, 2011; Citation No.
6555766 was issued on June 23, 2011. LAKE 2012-0161 comprises three citations. Nos.
8662246 and 8662247 were issued on September 27, 2011, and Citation No. 8662248 was issued
on September 28, 2011.

36 FMSHRC Page 2815

practice, but there are considerable mitigating circumstances.” Id. No negligence is found when
“[t]he operator exercised diligence and could not have known of the violative condition or
practice.” Id.
Gravity
The gravity penalty criterion under section 110(i) of the Mine Act, 30 U .S.C. § 820(i), is
most often viewed in terms of the seriousness of the violation. Sellersburg Stone Co., 5
FMSHRC 287, 294-95 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 673, 681 (Apr. 1987). The seriousness of a violation can be
evaluated by comparing the violated standard and the operator’s conduct with respect to that
standard in the context of the Mine Act's purpose of limiting violations and protecting the safety
and health of miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990)
(ALJ). The Commission has recognized that the determination of the likelihood of injury should
be made assuming continued normal mining operations without abatement of the violation.
Consolidation Coal Co., 8 FMSHRC 890, 899 (June 1986).
However, the gravity of a violation and its significant and substantial (“S&S”) nature are
not the same. The Commission has pointed out that the “focus of the seriousness of the violation
is not necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S
inquiry, but rather on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC
1541, 1550 (Sept. 1996). The gravity analysis can include the likelihood of an injury, but should
focus more on the potential severity of an injury, and the number of miners potentially injured.
The analysis should not equate gravity, which is an element that must be assessed in every
citation or order, with “significant and substantial,” which is only relevant in the context of
enhanced enforcement under Section 104( d). See Quinland Coals Inc., 9 FMSHRC 1614, 1622
n. l (Sept. 1987).
Significant and Substantial
It is clear in the Mine Act that because negligence and gravity, which are delineated in 30
C.F.R. § 100.3 and related tables, apply to all citations and orders, the enhanced enforcement
provisions set out in Section 104(d) contemplate something distinct and more, when talking
about S&S and unwarrantable failure. The Secretary must prove negligence and gravity for all
citations and orders. In order to invoke the enhanced enforcement provisions in Section 104(d),
he must also prove that the circumstances of the violation satisfy both the S&S and
unwarrantable failure standards. If the Secretary fails to prove both, there can be no enhanced
enforcement. Thus, the Secretary has to prove four distinct elements when the enhancement
scheme in Section 104(d) is alleged: (1) negligence; (2) gravity; (3) “significant and substantial;”
and (4) “unwarrantable failure.”

36 FMSHRC Page 2816

Significant and Substantial
In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Federal Mine Safety and Health
Review Commission ("Commission") explained:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: ( 1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard - that is, a measure of
danger to safety- contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be
of a reasonably serious nature.
Id. at 3-4.
In U.S. Steel Mining Co., 7 FMSHRC 1125 (Aug. 1985), the Commission held:
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." [. . .] We have emphasized that, in
accordance with the language of section 104( d)( 1 ), it is the
contribution of a violation to the cause and effect of a hazard that
must be significant and substantial."
Id. at 1129 (emphasis in original) (citations omitted).
The question of whether a particular violation is S&S must be based on the particular
facts surrounding the violation. See Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). S&S enhanced enforcement is
applicable only to violations of mandatory health and safety standards. Cyprus Emerald Res.
Corp. v. FMSHRC, 195 F.3d 42 (D.C. Cir. 1999)
Penalty
The principles governing the authority of Commission administrative law judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 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), 820(a). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess
said penalty. 29 C.F.R. § 2700.28.

36 FMSHRC Page 2817

Under Section 110(i) of the Mine Act, the Commission is to consider the following when
assessing a civil penalty: (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 in abatement of the violative condition. 30 U.S.C
§ 820(i). Thus, the Commission alone is responsible for assessing final penalties. See
Sellersburg Stone Co., 736 F.2d at 1151-52 (“[N]either the ALJ nor the Commission is bound by
the Secretary's proposed penalties … we find no basis upon which to conclude that [MSHA's
Part 100 penalty regulations] also govern the Commission.”); See American Coal Co., 35
FMSHRC 1774, 1819 (July 2013)(ALJ Zielinski).
The Commission has repeatedly held that substantial deviations from the Secretary's
proposed assessments must be adequately explained using the section 110(i) criteria. E.g., 293
Sellersburg Stone Co., 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May
2000); Cantera Green, 22 FMSHRC 616, 620-21 (May 2000) (citations omitted). A judge need
not make exhaustive findings but must provide an adequate explanation of how the findings
contributed to his or her penalty assessments. Cantera Green, 22 FMSHRC at 622.
Discussion
Citation No. 655758
Inspector Heft issued Citation No. 6555758 under 30 C.F.R. § 56.12004 alleging that the
operator failed to protect an electrical conductor exposed to mechanical damage. (Tr.1 at 53, Ex.
GX-1) Heft testified that he found an orange 110 volt power cable along the scale conveyor.
(Tr.1 at 54, 60) The outer jacket of the cable was torn exposing the inner insulated conductors.
(Tr.1 at 54) The exposed area of the power cable was approximately one half inch long, and the
power cable was thirty inches above the ground. (Ex. GX-1; Ex. GX-2) Heft concluded that the
breach in the cable’s outer jacket exposed the inner electrical conductors to possible mechanical
damage such as “equipment, material, weather, and UV radiation.” (Tr.1 at 54; Ex. GX-1) Heft
surmised that water could get inside the power cable through the jacket tear, dirt could corrode
the cable, rocks could fall from the scale conveyor and strike the cord, clean up equipment such
as the skid-steer could contact the cable, or the vibration of the scale conveyor could further
damage the cable. (Tr.1 at 56; Tr.2 at 42-43)
Heft concluded that the breach in the cable jacket was a safety hazard because there was
only a thin layer of insulating material left on the inner conductors (Tr.1 at 57) which, with
further deterioration, could cause pinholes or bare sections to develop in the inner conductors.
Id. This could expose any miner coming in contact with the cable to electrical shock. (Tr.1 at 57,
61) Also, an exposed inner conductor could energize the conveyor scale’s metal frame and
possibly shock any miner coming in contact with it. Id. Heft testified that a jolt from the 110
volt cable could cause electrical shock, burns, or electrocution, which in turn could result in lost
work days or restricted duty. Id

36 FMSHRC Page 2818

Brian Russell testified on behalf of NISC that there was always at least one person
loading trucks with the sales loader at Mine No. 1 and Mine No. 2 from April to December each
year. (Tr.2 at 131) Russell testified that Mine #1 only crushed product about 15 days per year
(Tr.2 at 50, 55-57), but that limestone had been mined and crushed during the period from a year
before Heft’s inspection to a year after. (Tr.2 at 130-131) Russell confirmed that the crusher,
generator, three screens, and four or five conveyor belts were in operation when Heft did his
inspection. (Tr.2 at 86) Russell stated that he had visually inspected the power cable in question
here, but had not turned it over to see all angles. (Tr.2 at 75-77) Russell looked for cuts,
abrasions, and kinks in the cable to make sure the outer jacket wasn’t cracked (Tr.2 at 76), but
admitted that the compromised portion of the jacket was facing down when Heft found it. (Tr.2
at 88-89)
The Violation
NISC argued that the fact that Mine No.1 was just being resurrected from its winter break
should affect my assessment of whether the defect in the 110 volt cable in question here
constituted a violation of 30 C.F.R. § 56.12004. (Resp. Brief at 8; Tr.1 at 16) Its argument
raises a point of equity not pertinent to the strict liability nature of the Mine Act and its
implementing regulations. See, Allied Products Inc., 666 F.2d 890, 892-93 (5th Cir.1982). It
may well be that time did not allow NISC to thoroughly examine all of its equipment and
grounds prior to resuming operations the day before Heft’s inspection, or that had they only had
another day or two before Heft’s inspection, they would have been able to work their way from
the most important safety concerns to those a bit lower on their list. But NISC had notified
MSHA that they had resumed operations (Tr.1 at 146-147; 208), and Mine No.1 was in partial
production on the day of the inspection. (Tr.2 at 332) These factors might weigh against a
finding of higher negligence, but they have no bearing on the existence of a violation.
There is no dispute that Inspector Heft found a defect in the 110 volt cable or that the
defect exposed the inner, current-carrying cables to ambient conditions. Assuming normal and
continuing mining operations, even factoring in the twenty-five or less production days during a
normal work year, it is reasonably likely the breach in the outer insulation would cause the
insulation on the inner conductors to fail due to the effects of weathering and/or friction. This is
a violation of the standard’s requirement that “[e]lectrical conductors exposed to mechanical
damage [. . .] be protected.” 30 C.F.R. § 56.12004.
Negligence
The Secretary argued for a finding of moderate negligence. Moderate negligence
requires that the operator knew or should have known of a violating condition, but there are
mitigating circumstances, albeit less weighty than what is contemplated in conjunction with a
finding of low negligence. Low negligence is defined as the situation in which the operator
knew or should have known of the violative condition or practice, but there are considerable
mitigating circumstances.

36 FMSHRC Page 2819

Russell testified that he walked along the conveyors and visually checked all power
cables, but he did not handle them. (Tr.2 at 75-77) NISC knew (through its management) that it
had to check all power cables in the mine for damage. Id. Despite this, Inspector Heft found the
break in the outer cable insulation that Russell had missed. I credit Russell’s testimony that he
had checked the cable in question. This is evidence of mitigation. I also consider the fact that
NISC had not gotten to every inspection item on its first day of resumed operation, and they gave
priority to more pressing inspection issues as further evidence of mitigation. (Tr.2 at 86) I
conclude that low negligence is the appropriate category.
Gravity
NISC does not contest Heft’s gravity assessment specifically. It does argue that the
citation should be vacated because there was no evidence of compromise to the insulation on the
inner conductors, and the break in the outer insulating jacket does not make out a violation, or in
the alternative, if it could, exposure to the elements does not constitute exposure to “mechanical
damage” as specified in 30 CFR § 56.12004. NISC also alleges that over the evening between
the first and second days of hearing, Heft came up with an alternate theory of how the
“scabbing” he found on the cable jacket amounted to mechanical damage. I see nothing
untoward in Heft’s additional explanation about his enforcement theory, however, I do see
evidence that supports the Secretary’s gravity allegation. Heft noted on Exhibit GX-1 that the
inner insulation was intact and that the cable was not adjacent to a travel way, but testified that in
time the cable could continue to wear from the elements, exposure to moving equipment and
falling rocks, and mechanical vibration to the point where current could short to the frame of the
scale conveyor. (Tr.2 at 142-43) This is consistent with his allegations in Exhibit GX-1 that it
was unlikely that an injury would occur, but that if it did happen, it could result in lost workdays
or restricted duty to a single miner. I conclude that the gravity was as alleged by Heft in Exhibit
GX-1.3
Penalty
The Secretary assessed the penalty for this citation as $108.00. I have reviewed and
confirmed the data in Exhibit A to the Secretary’s Petition for Assessment of Civil Penalty
showing the number of production hours for the mine and the mine controller, the number of
prior violations per inspection days, the number of repeat violations, the number of persons
affected by prior violations, the negligence points, the likelihood points, and the good faith point
reductions. Because I have found low negligence instead of moderate negligence, the point
calculation in 30 CFR § 100.3 results in a penalty of $101.00. I assess a penalty of that amount.
Citation No. 6555759
Inspector Heft issued Citation No. 6555759 under 30 C.F.R. § 56.14107(a) when he
found an unguarded opening on both sides of the Roadstone stacker conveyor’s tail pulley,
3

Heft did not designate this violation as S&S or an unwarrantable failure to comply with
the requirements of the standard.

36 FMSHRC Page 2820

measuring approximately four inches by six inches and situated about 16 inches above the
ground. (Tr.1 at 67-69; Ex. GX-3; Ex. GX-4) The Roadstone stacker was in operation, and the
tail pulley was in motion. (Tr.1 at 67-68; Ex. GX-3) A person could walk right up to the opening
in the guard. (Tr.1 at 69) The opening was large enough for a person’s hand to fit through it.
(Tr.2 at 92-93) Heft concluded that if a person tripped and fell and a hand were to pass through
the opening, it could come in contact with the moving tail pulley, which could pull the hand and
arm into the stacker and cause dismemberment. (Tr.1 at 70:6-7) Heft stated that the condition
was not open or obvious, but NISC should have known of it because of its duty to affirmatively
look for safety and health hazards. (Tr.1 at 71) The guard on the Roadstone stacker was original
equipment. (Tr.2 at 92)
The Violation
There was a guard in place on the stacker which did not cover the entire opening to the
tail pulley area. The unguarded openings were large enough for a person’s hand to pass through.
30 C.F.R. § 56.14107(a) applies to moving parts that may be contacted, “including contact
stemming from inadvertent stumbling or falling, momentary inattention, or ordinary human
carelessness.” Thompson Bros. Coal, 6 FMSRHC 2094, 2097 (Sept. 1984); (Thompson was
incorporated by reference for 30 C.F.R. § 56.14107 in Mainline Rock and Ballast, Inc., 693 F.3d
1181, 1186 (10th Cir. 2012)) Heft testified that he was able to walk up to the openings and could
have put his hand through them. (Tr.1 at 69-71) Foreman Russell also stated that when he
greased the machine, he put his hand through the opening after first turning the stacker off. (Tr.2
at 92-93) A look at the photo of one of the openings in Exhibit GX-4 confirms this.
I find that however unlikely it was that a person would actually get a hand through the
unguarded opening, there was still a discernable hazard that exactly such a mishap could occur.
NISC should have anticipated this eventuality and taken steps to guard the entire opening. The
failure of the existing guard to prevent a miner’s hand from coming in contact with the moving
tail pulley violates the standard.
The fact that previous inspections had not cited this defect is of no avail to NISC, nor
does it require that MSHA give specific prior notice, as argued in NISC’s post-hearing brief,
before enforcing 30 C.F.R. § 56.14107, as it did here for the first time on this mine property. The
test for prior notice of intent to enforce is whether a reasonable person familiar with the mining
industry, the protective purpose of the Mine Act and its implementing regulations, and how
MSHA disseminates its interpretation of its regulations should have discerned the need to guard
the machine part in question here. See Alan Lee Goodf d/b/a Good Construction, 23 FMSHRC
995, 1005 (Sept. 2001), MSHA v. Holcomb & Co., 33 FMSHRC 1435, ( June 2011) (ALJ
Manning), and Higman Sand & Gravel Inc., 24 FMSHRC 87 (Jan. 2002) (ALJ Manning). As
pointed out in the Secretary’s Post-Hearing Reply Brief, NISC was cited for violations of this
same standard seven times in the two year period preceding Inspector Heft’s citation here. NISC
was or had reason to be aware of MSHA’s enforcement intent with regard to this standard. As
Judge Manning explained in his decision in MSHA v. Holcomb & Co., “[t]he regulatory history
of section 56.14107(a) makes clear that the Secretary provided notice to the mining community
that [he] interprets the safety standard very broadly to protect persons from coming into contact

36 FMSHRC Page 2821

with moving machine parts and that the standard covers inadvertent, careless, or accidental
contact.” (Internal citation omitted.) 33 FMSHRC at 1439.
Negligence
The citation alleges moderate negligence which requires that the operator knew of should
have known of the violating condition, but there are mitigating circumstances. 30 CFR §
100.3(d), Table X. In addition, operators must be charged with knowledge of the Mine Act and
have a duty to comply with those provisions. Emery Mining Corp., 744F.2d 1411, 1416 (10th Cir.
1984) (citations omitted); Central Sand and Gravel Co., 22 FMSHRC 779 at n. 4 (June
2000)(ALJ Barbour) (“It is the duty of each operator to have a thorough, working knowledge of
the code’s contents and applications.”)
NISC should have known it was accountable for ensuring that all moving machine parts
were guarded. It knew that this tail pulley could be contacted because Foreman Russell had put
his hand into the gap in the guard on previous occasions to grease the Roadstone stacker. (Tr.2 at
92-93) However, the fact that the likelihood of a miner accidentally getting a hand or other
appurtenant part into the gap in the guard was very remote mitigates against a finding of
anything more than moderate negligence. Similarly, any adjustments to change the positioning
of the tail pulley were done from a location a foot and a half from the opening. (Tr.2, at 95). I
conclude that NISC’s negligence was moderate.
Gravity
NISC does not specifically contest Heft’s characterization of the gravity of this violation,
viz., unlikely to cause injury and potentially affecting a single miner. It does challenge in
general the fairness of MSHA issuing citations for conditions that might have arisen over the
winter production break and that NISC had not yet gotten around to fixing on its first day of
resumed operations. (Resp. Post-Hearing Brief, pgs. 6-7) This violation, however, involves the
lack of guarding on a piece of equipment, a condition which did not arise during the winter
break. NISC points out in defense of this citation that the guarding on the Roadstone stacker
came from its manufacturer in the condition Inspector Heft found. (Tr.2 at 92) NISC also argues
that the only time anyone ever inserts a hand into the unguarded gap is to perform periodic
lubrication maintenance, which is only done when the entire stacker conveyor is shut down.
(Tr.2 at 93) It is not necessary to use the unguarded gap to adjust the tail pulley. (Tr.1 at 242) I
am also aware that Inspector Heft noted in his narrative on the citation form that “[t]he condition
is not along a regular travel way,” and that given the fact that the stacker came equipped as cited,
“[t]he operator did not recognize the hazard.” (Ex. GX-3) The evidence of the gravity of this
violation is consistent with Heft’s finding, and I concur.
Penalty
The Secretary recommends a penalty for this citation of $807.00. I have reviewed and
confirmed the data in Exhibit A to the Secretary’s Petition for Assessment of Civil Penalty
showing the number of production hours for the mine and the mine controller, the number of

36 FMSHRC Page 2822

prior violations per inspection days, the number of repeat violations, the number of persons
affected by prior violations, the negligence points, the likelihood points, and the good faith point
reductions. I assess a penalty of $807.00, as the Secretary has recommended.
Citation No. 6555760
Violation
On June 22, 2011, Inspector Heft issued Citation No. 6555760 for failure to mark a
portable container with the common name of its contents. (Tr.1 at 73-78) Heft found an
unlabeled, partially full, portable container in the back of a NISC service truck. (Tr.1 at 75) The
photo in Ex. GX-6 confirms that the container was not labeled. Heft concluded that because the
container was in the bed of service truck on the mine premises, it was available for use. (Tr.2 at
43 and 75) Foreman Russell told Heft he had been driving the service truck for two days. (Tr.1
at 77; Ex. GX-18, pg. 7) Heft concluded that the container was being used to transfer hydraulic
oil, not as a permanent container. (Tr.1 at 77-79) Foreman Russell told Heft that the container
had been in the service truck since Russell had taken the truck from another site, and that he did
not know the container was partially full or unlabeled. (Tr.1 at 79; Ex. GX-5, pgs. 3-4) Heft
concluded that the unlabeled container was a safety hazard because a miner could contact a
hazardous substance (the hydraulic oil) in the container and would not know what precautions to
take. (Ex. GX-5, pg. 3) Heft also believed the container was a safety hazard because it contained
hydraulic oil, a petroleum product which could cause skin and eye irritation and result in lost
work day injuries. (Tr.1 at 79; Ex. GX-5, pg. 3)
Foreman Russell testified that he had taken the truck to Mine No. 1 for the first time the
day before Heft’s inspection. (Tr.2 at 80) The truck was owned by NISC. (Tr.2 at 134) The
truck was used at this mine site only long enough to start the machinery after the winter pause.
(Tr.2 at 137) Russell did not put the container in the truck; a mechanic did. (Tr.2 at 96; 136-137)
The container was in the truck at the beginning of Russell’s shift on June 22, 2011. (Tr.2 at 136137) Neither Russell nor the other miner on site used the container before the inspection. (Tr.2
at 96) Russell testified that the hydraulic oil was used on equipment at Mine No. 1. (Tr.2 at 9697; 134-135)
NISC argues three points against this citation: (1) the cited standard only applies if the
contents of the portable container are actually used (Resp. Post-Hearing Brief at 14); (2) the
Secretary failed to prove that the hydraulic oil in the container was hazardous (Id. at 15); and (3)
the truck was primarily used at non-mine locations and was only used by Russell in this case to
travel to Mine No. 1 at the beginning of this shift and was parked on mine premises the rest of
the time. Id.
None of the Respondent’s arguments is convincing. First, even assuming arguendo that
NISC’s syntactic logic truly meant that in order for the standard to apply, the portable container
must actually be used by a miner, its language would also require that for the labeling
requirement not to apply, the miner using the container must not only know the identity of the
contents and its related protective measures, he must also leave the container empty at the end of
the shift. The purpose of a temporary container is to contain something for a time. Whether the

36 FMSHRC Page 2823

material in the container is used at all is only a secondary consideration. The gravamen of the
standard is that it is permissible to use a portable container for temporary storage, and it need not
be labeled if it is left empty at the end of the shift, regardless of whether the contents are used
during the shift. The “use” that is central to this standard is the use of the portable container to
contain a potentially hazardous material, not whether a miner actually uses the material. This
container was not left empty at the end of the previous shift. Therefore, one of the necessary
elements needed for NISC’s logic to apply was unsatisfied. The container was not emptied at the
end of the prior shift – it was found containing hydraulic oil during the inspection shift – which
means that one condition necessary for it not to be labeled did not exist. (Tr.1 at 252) It
contained hydraulic oil during the shift and on mine premises; it was being used by Russell for
its intended purpose, i.e., to temporarily contain something. Russell testified that he knew that
the container was in the service truck he had driven for a day or two and that he knew it
contained hydraulic oil. (Tr.2 at 96-98) The elements of the standard, written in the negative as
it is, that would excuse the obligation to label the temporary container were not present. What
remains is the use of an unlabeled temporary container to hold an arguably hazardous material
while on mine premises. It is irrelevant whether the contents were used.
Second, Heft testified that hydraulic oil is hazardous. (Tr.1 at 79; 253) In its cross
examination of Heft, NISC referred to a document entitled 1999/45/E.C. (Resp. Post-Hearing
Brief at 15), which from its context seems to support the notion that hydraulic oil is not
hazardous to humans. Heft did not acknowledge the authority of this document, nor was it
entered into evidence. As a result, the court may not recognize it for the purpose NISC intended.
The only evidence in the record on the issue of whether hydraulic oil is hazardous is Heft’s
testimony that it is, in his opinion. I find that for purposes of determining whether 30 CFR §
47.44(b) was violated in this case, hydraulic oil is hazardous.
Third, the service truck was on mine premises with the unmarked container in its bed
when Heft did his inspection and wrote this citation. (Ex. GX-5) I credit the fact that Russell
used the service truck to come to Mine No. 1 from another location and parked it on the mine
premises once he got there. (Tr.2 at 81-82) I also credit the fact that the service truck was used
at non-mine locations some of the time and had been used at such a non-regulated location
during the winter pause. (Tr.2 at 79-80) It is also undisputed that the service truck sat parked
close to the mine shop when Russell was not using it to drive around the mine site. (Tr.2 at 8182) None of this changes the fact that at the time of Heft’s inspection, the service truck was on
the Mine No.1 premises, which were subject to MSHA regulation and inspection, and it had the
unmarked container in its bed. These facts are relevant to the negligence and gravity findings,
but they do not obviate the violation of 30 CFR § 47.44(b). I find that a portable, temporary
storage container was found unmarked in the bed of the service truck while it was on mine
premises and conclude that this makes out a violation of the standard.
Negligence
Inspector Heft appropriately categorized this violation at the level of moderate
negligence. Russell had driven the service truck on more than one shift and had brought it onto
mine property each time with the unmarked container in the bed. NISC knew or should have

36 FMSHRC Page 2824

known of the violating condition. As above, the brief time the mine had been back in operation
after the winter break mitigates against a higher level of negligence. I concur in Heft’s
negligence assessment and find that the violation was the result of moderate negligence.
Gravity
Inspector Heft concluded that this violation was “unlikely” to cause injury, and that the
potential injury would result in lost workdays or restricted duty and involve a single miner. (Ex.
GX-5) Heft testified that the potential injury would be skin or eye irritation. (Tr.1 at 79)
Hydraulic oil would most likely not cause a more serious injury if a miner got it on his skin. I
concur with Heft’s gravity assessment.
Penalty
The Secretary recommends a $108.00 penalty for this citation. I have reviewed and
confirmed the data in Exhibit A to the Secretary’s Petition for Assessment of Civil Penalty
showing the number of production hours for the mine and the mine controller, the number of
prior violations per inspection days, the number of repeat violations, the number of persons
affected by prior violations, the negligence points, the likelihood points, and the good faith point
reductions. I assess the recommended penalty of $108.00.
Citation No. 6555761
Inspector Heft issued Citation No. 6555761 on June 22, 2011, for an alleged failure to
correct a defective acetylene torch gauge in a timely manner. (Tr.1 at 81) Heft found an
acetylene torch on the same service truck discussed above. (Tr.1 at 84-85) He observed that the
pressure gauge on the acetylene tank read 15 psi (pounds per square inch). (Tr.1 at 85) He
released the pressure to the gauge by a process he called “bleeding off,” and expected to see the
gauge reading to go from 15 psi to zero. (Tr.1 at 86) It did not; it stayed at 15 psi, which Heft
interpreted as evidence that the gauge was not functioning properly. (Tr.1 at 85-87) Heft was
aware that if pressure in the tank exceeded 15 psi, acetylene could ignite spontaneously without
an ignition source. Without a functioning pressure gauge, which would show an excess pressure
reading in a red zone on its dial, there is no way a miner would know to take extra precautions to
avoid an explosion. (Tr.1 at 89-93) The acetylene torch was not being used at the time of the
inspection, but Foreman Russell told Heft that the torch had been used earlier in the day. (Tr.1 at
88-89, Ex. GX-7)
Heft classified this situation as S&S. He believed that it was reasonably likely to result
in an injury because: (1) the torch was available for use; (2) it was not tagged out of service; and
(3) it had already been used once that day in the defective condition. (Tr.1 at 91-92) Heft also
concluded that it was reasonably likely to lead to a fatal injury because there was no way to
effectively tell if the pressure because too high, which could cause an explosion. Id.
According to the testimony of Foreman Russell, the torch was normally used to cut metal
at the NISC recycling plant located off the mine site. (Tr.2 at 98-99) However, Russell also

36 FMSHRC Page 2825

stated that a mechanic working for NISC had used the torch at the Mine No. 1 site earlier in the
day. (Tr.2 at 133-134)
NISC argues that the service truck was only used to transport Russell to the Mine No. 1
site, which somehow means that NISC was not obligated to do a pre-shift examination to
determine if it or any of the equipment in its bed needed attention. NISC goes on to posit that
since it did not consider the service truck subject to the pre-shift examination requirement, it was
not obligated to, nor did it otherwise determine that there was a problem with the gauge on the
acetylene torch and tank. As a result, there could be no violation of the standard because the
standard requires that defects in “self-propelled mobile equipment to be used during a shift” be
“corrected in a timely manner,” and NISC could not have detected the faulty gauge since they
did not consider it, or anything in or on the service truck, something they should inspect preshift. They ask how they could have corrected a defect in the acetylene gauge that they did not
know about as a result of their interpretation that they did not have to look for any problems with
the service truck.
A more perfectly circular argument is hard to find. NISC’s argument is facile; it appears
neat and comprehensive only by ignoring the clear mandate created by the standard to pre-shift
all self-propelled equipment to be used on the mine site, including this service truck and its
contents.
NISC compounds things by pointing out a former decision of mine4 in which I
interpreted two standards in pari materia 5 such that the one that required a defective piece of
equipment to be tagged out of service not defeat the other which gave the operator the right (and
obligation) to discover the defect in a pre-shift examination. In that case, the inspector found a
violation before the operator conducted its pre-shift and before the equipment was placed in
service. In contrast, NISC argues here that it had no obligation to pre-shift the service truck and
thus had no opportunity to discover the defect in the acetylene torch gauge, while at the same
time arguing that it was preempted from correcting problem by its own decision not to pre-shift
the truck. There, the equipment had not yet been pre-shifted or put in service when the
inspection happened. Here, there simply was no pre-shift done or intended, the truck had already
been put in service on the mine site, and the faulty acetylene torch had been used on the mine
site.

4

MSHA v. Wake Stone Corp., 33 FMSHRC 1205, 2011 WL 2745783. (Currently on
appeal to the Commission.)
5

The general principle of in pari materia, a rule of statutory interpretation, says that laws
of the same matter and on the same subject must be construed with reference to each other. The
intent behind applying this principle is to promote uniformity and predictability in the law.

36 FMSHRC Page 2826

The Violation
NISC put the service truck and the acetylene torch equipment in its bed into service
without conducting a pre-shift examination. Heft discovered a defect in the acetylene torch
gauge. NISC does not contest the fact that the gauge was defective. The service truck was a
piece of self-propelled equipment used on a mine site that had to be pre-shifted and wasn’t. As a
result, NISC did not know, although it should have, about the defective acetylene gauge, and it
did nothing to correct the defect before Heft discovered it during his inspection. This is a
violation of 30 CFR § 56.14100(b), which requires that defects on any equipment, machinery, or
tools that affect safety be corrected in a timely manner to prevent the creation of a hazard to
persons.
There can be no doubt that this violation occurred on a mine site and, as such, arose
under the Mine Act.6 Although NISC argues that the fact that the service truck was used most
commonly at a facility that was outside MSHA regulation should make a difference in Heft’s
enforcement decisions, there is no dispute that the defective acetylene torch gauge was located in
the service truck bed on the Mine No. 1 site when Heft discovered the defect, and when it was

6

Section 4 of the Mine Act provides in part that “[e]ach coal or other mine [. . .] shall be
subject to the provisions of this Act.” 30 U.S.C. § 803. “Coal or other mine” is defined in
section 3(h)(1) of the Act as:
(A) an area of land from which minerals are extracted in nonliquid form or, if in
liquid form, are extracted with workers underground, (B) private ways and roads
appurtenant to such area, and (C) lands, excavations, underground passageways,
shafts, slopes, tunnels and workings, structures, facilities, equipment, machines,
tools, or other property including impoundments, retention dams, and tailings
ponds, on the surface of underground, used in, or to be used in, or resulting from ,
the work of extracting such minerals from their natural deposits in nonliquid
form, or if in liquid form, with workers underground, or used in, or to be used in,
the milling of such minerals, or the work of preparing coal or other minerals, and
includes custom coal preparation facilities. 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).

36 FMSHRC Page 2827

used earlier that day to cut metal.7 There is no de minimus rule that allows this court to exclude
from its review the fact that the violating event happened and was discovered on a mine site
subject to the jurisdiction of the Mine Act, no matter how little time the service truck was used at
the Mine No. 1 site.
Negligence
Heft rated this violation at the level of moderate negligence. This requires that NISC
knew or should have known that the acetylene gauge was defective, and that there were
mitigating circumstances. NISC should have and could have known about the defective gauge if
it had conducted a competent pre-shift examination of the service truck and the items, including
the acetylene torch, in its bed. When the miner used the acetylene torch to cut metal earlier in
the shift, NISC had a second opportunity to know of the defect in the acetylene torch. (Tr.1 at
88-89; Tr.2 at 133-134; Ex. No. 7, 3) Heft explained that the proper procedure for maintaining
an acetylene torch is to bleed off the hose after each use and check that the gauge shows zero
pressure. (Tr.1 at 92-93) Had the miner bled off the hose on the torch, he could have discovered
the defect and timely done something to remedy it before Heft found it. (Tr. 1 at 257) Heft did
not explain in testimony what he considered to be mitigating circumstances. I do not consider
anything that happened on June 22, 2011, as mitigation. Heft’s assessment of moderate
negligence is appropriate.
Gravity
Heft classified this violation as reasonably likely to involve a single miner in a
potentially fatal accident. He explained that since acetylene can become volatile and prone to
explode without an ignition source at pressures above 15 psi, the faulty pressure gauge prevented
a miner from visually determining if there was excess pressure in the system, thus increasing the
likelihood of an explosion. (Tr.1 at 91-92) This is a reasonable conclusion; it is not contested by
NISC. I concur that as it was found and assuming it would have continued to be used during
normal continuing mining activities, the faulty pressure gauge was reasonably likely to result in
a fatality. U.S. Steel Mining Company. Inc., 6 FMSHRC 1573, 1574 (1984).
Significant & Substantial
The Secretary seeks a ruling that this violation is significant and substantial (“S&S”). If
an inspector finds, “based on the particular facts surrounding the violation, there exists a
reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature,” then the violation must be classified as significant and substantial
(“S&S”). National Gypsum Co., 3 FMSHRC 822, 825 (1981). To establish that a violation of a
7

NISC does not contend that the location of the violation was excluded from Mine Act
jurisdiction. It does mention that the location where the service truck was most often used and
stored was not subject to MSHA jurisdiction. However, since the site where the violation
occurred and was discovered is clearly under MSHA jurisdiction, this fact means nothing.

36 FMSHRC Page 2828

mandatory safety standard is S&S, the Secretary must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard, i.e., a measure of danger to safety
contributed to by the violation; (3) a reasonable likelihood that the hazard 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 at 3-4.
I have found that NISC’s failure to find and remedy the faulty acetylene pressure gauge is
a violation of 30 CFR § 56.14100(b). The measure of danger to safety contributed to by the
violation was discussed as part of the gravity analysis above, as was the reasonable likelihood
that the defective pressure gauge could lead to an explosion from volatile, over-pressured
acetylene and result in a fatality. This violation is properly characterized as S&S.
Penalty
The Secretary recommends a $1,795.00 penalty for this citation. I have reviewed and
confirmed the data in Exhibit A to the Secretary’s Petition for Assessment of Civil Penalty
showing the number of production hours for the mine and the mine controller, the number of
prior violations per inspection days, the number of repeat violations, the number of persons
affected by prior violations, the negligence points, the likelihood points, and the good faith point
reductions. I have also confirmed that this violation should be subject to enhanced S&S
consequences. I assess the recommended penalty of $1,795.00.
Citation No. 6555762
Violation
Inspector Heft discovered that the horn on the service truck did not work and issued
Citation No. 6555762 under 30 C.F.R. § 56.14132(a).8 (Tr.1 at 96; Ex. GX-9) Heft instructed
Russell to test the manual horn on the service truck. (Tr.1 at 84-85) The horn did not work. (Tr.1
at 98) Heft testified that a manual horn is a basic safety device to warn inattentive people not to
step in front of the truck. (Tr.1 at 98-99) Heft testified that if a person were hit by a Ford F-700
truck, he could suffer a fatal crushing injury. (Tr.1 at 99; Ex. GX-9) Heft considered the
likelihood of such an injury unlikely because of the limited foot traffic at the mine site. (Tr.11 at
99-100)
Russell did not check the horn at the beginning of the shift. (Tr.1 at 100; Ex. GX-9; Tr.2
at 137-138) The truck had been on the mine site for two days. Id. Heft testified that Russell
should have tested the horn as part of the mandatory pre-shift examination of the service truck.
Russell had operated the truck for over six hours before Heft issued the citation. (Tr.1 at 101) If
a meaningful pre-shift examination had been done, Heft expected that the faulty horn would be
8

30 C.F.R. § 56.14132 (a) Manually-operated horns or other audible warning devices
provided on self-propelled mobile equipment as a safety feature shall be maintained in functional
condition.

36 FMSHRC Page 2829

noticed and the truck taken out of service until the horn was fixed. (Tr.1 at 102) Heft also
testified that he did not find anything about the faulty horn situation that he considered
mitigating circumstances. (Tr.1 at 102)
Russell testified that there was no other equipment operating on the mine site when he
drove the service truck onto the site. (Tr.2 at 100) The truck was only driven on the mine site
when NISC needed to crush limestone. (Tr.2 at 100-104) Russell did not consider the horn to be
a real problem because the other mobile equipment on the site was louder than the horn, and
everyone on the site wore earplugs. (Tr.2 at 100-103) On further questioning, Russell conceded
that the loudness of the equipment was not an excuse for not having a functioning horn on the
service truck. (Tr.2 at 137-138)
NISC argues that, for the same reasons cited in relation to the preceding violation, this
citation should simply be dismissed. It suggests that because this service truck was used more at
sites not subject to Mine Act regulation, Heft should have regarded it as a personal private
vehicle rather than a piece of mobile mine equipment. It is not contested that Russell used it to
travel to and come onto the mine site to perform his assigned work tasks for NISC. Heft
correctly considered the service truck as a piece of self-propelled mobile equipment, irrespective
of the possibility that it saw more used on non-regulated sites.
The Commission laid out a clear rule governing this issue in Wake Stone Corp., 36
FMSHRC 825, 828, April 18, 2014, “[S]tandards requiring maintenance in functional condition
are enforceable when the cited equipment is not in actual use, unless it has been removed from
service.” Citing Ideal Basic Indus., 3 FMSHRC 843, 844-45 (Apr. 1981). (Use of a piece of
equipment containing a defective component that could be used and which, if used, could affect
safety, constitutes a violation.) Id. at 844; See also Alan Lee Good, 23 FMSHRC at 997
(reinforcing the rule that equipment not tagged out of operation and parked for repairs must be
maintained in functional condition, “whether or not the equipment is to be used during the
shift.”); Mountain Parkway, 12 FMSHRC at 963 (relying on Ideal Basic and interpreting the
term “used” broadly to include equipment that was parked in the mine in turn-key condition and
not removed from service).
I find that the service truck was a piece of self-propelled equipment available for use on
the mine site and that its manual horn did not work. This was a violation of 30 C.F.R. §
56.14132(a).
Negligence
The citation alleges high negligence for this violation. High negligence is present for
MSHA’s enforcement purposes when an operator knew or should have known of the violating
condition and there are no mitigating circumstances. 30 C.F.R. § 100.3(d), Table X. The court
should consider the following factors in finding a high degree of negligence: (1) was
management aware of the condition; (2) was the mine on notice regarding the condition; and (3)
was the operator complacent in complying with the standard? See, e.g., Robert L Weaver, 21
FMSHRC 370, 373 (Mar. 1999)(ALJ Bulluck); Sangravl Co., 33 FMSHRC __, 2011 WL

36 FMSHRC Page 2830

2286880 at * 4 (May 2011) (ALJ Barbour) ; Lebanon Quarry & Mill, 33 FMSHRC 751, 760
(Mar. 2011)( ALJ Miller).
Russell should have, but did not, conduct a pre-shift examination of the service truck.
Had he done so competently, he would have checked the horn (as Heft did) and discovered that it
obviously did not work. NISC did not argue that it lacked the notice required to give it
knowledge of the faulty horn. NISC is expected, as a mining company, to know the law,
including the requirement to do a competent pre-shift examination of mobile mine equipment
such as this service truck. See Emery Mining Corp. 744 F.2d at 1416. NISC cannot claim that it
lacked knowledge of the faulty horn because it failed to conduct a pre-shift exam. See, Freeman
United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 363 (D.C. Cir. 1997) (stating that
“knowing” in the context of section 110(c) includes “deliberate ignorance” and “reckless
disregard”). NISC’s failure to conduct a pre-shift exam is proof of its complacence about its
duty to comply with the standard. Although Russell had used the truck on mine property for two
days (Tr.1 at 100), Russell did not even undertake an exam that could have revealed the faulty
horn. I find that NISC should have known – and would have known – of the faulty horn had it
not ignored the duty to look for defects in the service truck before using it on the mine site. I
conclude that Heft’s assignment of high negligence was proper.
Gravity
This citation is characterized as unlikely to result in an injury, but if it did, the injury
might reasonably be fatal, and potentially affecting a single miner. Due to the fact that the
violation occurred in the first days of operation after a winter pause and there was only one other
miner on the property at the time (Tr.2 at 100-103), I concur that the lack of a working horn on
the service truck was unlikely to result in an injury. I also agree that a truck of this size could
cause a fatal accident were it to hit a miner. (Tr.1 at 99)
Penalty
The Secretary recommends a $1,203.00 penalty for this citation. I have reviewed and
confirmed the data in Exhibit A to the Secretary’s Petition for Assessment of Civil Penalty
showing the number of production hours for the mine and the mine controller, the number of
prior violations per inspection days, the number of repeat violations, the number of persons
affected by prior violations, the negligence points, the likelihood points, and the good faith point
reductions. I assess the recommended penalty of $1,203.00.
Citation No. 6555763
Violation
Inspector Heft found a torn and frayed seatbelt on a Caterpillar 992G front end loader
(Tr.1 at 105; Ex. GX-10) for which he issued Citation No. 6555763 under 30 C.F.R. §
56.14130(i). The standard requires that seat belts be maintained in functional condition and
replaced when necessary to assure proper performance. The loader was on the mine site and was

36 FMSHRC Page 2831

in use at the time the citation was issued. (Tr.1 at 107) The photos in Ex. GX-11 show the seat
belt tear and fraying. Heft measured the tear to be approximately three-eighths of an inch into
the belt. (Tr.1 at 106-107; Ex. GX-11) The frayed portion on the side of the belt was
approximately two-and-one-half inches long. Id. The belt was a lap belt meant to restrain a
person from leaving the seat. (Tr.1 at 108) In Heft’s opinion, the seat belt was not functional
because of the tear, the thinning from wear, and the frayed edges. Id. Heft testified that as he
saw it, the seat belt was not in its original manufactured condition (Tr.1 at 108-109), and in the
event of a roll-over accident, this degree of wear might be enough to cause the belt to fail to
restrain the driver. (Tr.1 at 109) If the belt broke, the operator could be thrown from the loader
or bounced around in the cab and fatally injured. Id.
Heft felt that the defects in the seat belt made an injury accident reasonably likely. (Ex.
GX-10) During continued mining operations, the tear would get worse as shown by the visible
tear that had developed in the area where the belt was frayed. (Tr.1 at 109-110) Heft factored in
the fact that the loader frequently operated on a ramp near the scale house which was long and
fairly steep (Tr.1 at 110:16-17) and that there were other ramps in the quarry the loader used
during normal mining operations. (Tr.1 at 110) Heft testified about an MSHA Program Policy
Manual source that states that failure to maintain seatbelts is a serious safety hazard and should
be cited as significant and substantial under most circumstances. (Tr.1 at 113; Ex. GX-12) Heft
testified that the loader operator knew that the belt was torn and frayed, but did not recognize the
hazard and did not inform management. (Tr.1 at 120) The tears and fraying were obvious
because they were on the main part of the belt which lies on the operator’s lap. Id.
Russell testified that the seatbelt was still functional because when he drove the same
loader on terrain that caused him to bounce around in his seat, he could feel the belt restraining
his motion. (Tr.2 at 107:8-11) Russell agreed with Heft that there were 35 to 40 degree slopes at
the Mine No. 1 site. (Tr.2 at 107)
NISC argues that Heft should not have determined that the seat belt was non-functional
based on the fact that it was not in new condition. It maintains that the Secretary only proved
that the belt was somewhat worn, not that it was non-functional. I agree.
The only evidence in the record bearing on the belt’s functionality, other than Heft’s
opinion, is Russell’s testimony about the belt holding him in place in the operator’s seat as he
drove the loader over rough roadways on the quarry site. It is possible that in the event of a
rollover accident the belt might fail, but there is no evidence in the record to make that
possibility anything more than speculation. The photos in Ex. GX-11 confirm that the belt was
frayed and certainly not in factory-new condition, but there is nothing beyond Heft’s
unsupported conclusion to prove that the belt wear was serious enough to make the possibility of
it breaking in a rollover more than conjecture. See, Ammon Enterprises, 2008 WL 4190445 at
*13 (July 2008)(ALJ Zielinski). (Four inch wide seat belt frayed at edges with a three-quarter
inch tear was deemed “functional” by MSHA inspector. Gravity assessment was based on
prediction that the belt would fail during a rollover accident. No strength testing done on the
belt. Inspector’s determinations based solely on his visual examination. Secretary failed to carry
burden of proof.)

36 FMSHRC Page 2832

I conclude that the Secretary failed to prove that this seat belt was non-functional and
vacate Citation No. 6555763.
Citation No. 6555764
Violation
Inspector Heft issued Citation No. 6555764 when he discovered that a portion of a berm
was missing on the roadway on the west side of the NISC maintenance shop. He noted that there
was a drop-off next to the roadway deep enough to cause a vehicle to overturn or endanger
persons in equipment that might go over the drop-off. (Tr.1 at 122-123; Ex. GX-13) The photos
in Ex. GX-14 show the before and after condition of the edge of the roadway and confirm that a
portion of berm was missing. The roadway was approximately twenty feet wide and was used
by mobile equipment to access the shop area. (Tr.1 at 125-127) Heft testified that the berm was
insufficient along a 36 foot section where the drop-off was approximately five feet. (Tr.1 at 127128: Ex. GX-13; Ex GX-18) Heft measured the slope of the unbermed area and determined it to
be forty percent. (Tr.1 at 129)
Heft characterized the missing berm section as S&S due to the lack of anything along the
section of roadway to keep a vehicle on the roadway. (Tr.1 at 131) He concluded it was
reasonably likely that a vehicle could go over the edge of the roadway because he observed
vehicle tracks within two feet of the edge. (Tr.1 at 126-127; 131; Ex. GX-13) The five foot
drop-off and forty percent slope were enough in Heft’s assessment to pose a danger to anyone
who drove a vehicle over the edge of the roadway. (Tr.1 at 129-130) Heft envisioned a person
going over the edge being thrown and banged around inside the vehicle cab (Tr.1 at 130) and
suffering cuts, bruises, strains, sprains, and broken bones in the process. (Tr.1 at 130)
There was agreement between Heft and Russell that there had been a berm in this
location which had washed away. (Tr.1 at 132; Tr.2 at 111-112; Ex. GX-14) Heft felt that the
operator should have known that a berm was required in that area. (Tr.1 at 132), which Russell
confirmed when he testified that a berm was needed on this portion of the roadway. (Tr.2 at 139)
Russell testified that he had not yet inspected this portion of the roadway. He had been
busy getting the plant started. (Tr.2 at 77; 111) Russell stated that this roadway was not the
main roadway in the mine area. (Tr.2 at 62) The roadway was not used by customers of Mine
No. 1 and was rarely used by miners. Id. Russell explained that because the corner between the
maintenance shop and the edge of the roadway was so narrow – about 20 feet – anyone driving
on that section would take care to go very slowly – no more than 5 miles per hour. (Tr.2 at 116117) Nonetheless, the roadway had a speed limit of 10 miles per hour and was open to the
public. (Tr.2 at 114) Russell testified that the 9980 sales loader used this roadway (Tr.2 at 115116) and that it is the largest piece of equipment that traveled the roadway – more than 12 feet
wide. (Tr.2 at 139) Russell agreed that if a person drove off the edge of the roadway, he would
be thrown around, but would probably not be injured. (Tr.2 at 140)

36 FMSHRC Page 2833

As with the other citations in this decision, Russell claimed to have intended to get to the
missing berm in due course, but had just not gotten that far down his start-up to-do list yet when
Heft arrived for the inspection. (Tr.2 at 77; 111) Russell also claimed, based on his experience
with ordinary farm equipment, that he had driven equipment down equivalent grades and had not
overturned or been thrown around in the cab. (Tr.2 at 112-114)
In defense of this citation, NISC argued that Heft agreed that it would be best when
restarting production after an idle period to attend first to those areas of the plant that posed the
greatest potential danger to miners, but he had gone against this concept by citing NISC for
doing exactly that. (Resp’s Post-Hearing Brief at 21) NISC argues further that its prioritization
of tasks at the start-up was not negligent and that it should be relieved of any responsibility for
the missing berm section because, although Heft testified that according to his understanding of
his duty as an authorized representative of the Secretary of Labor if he saw a violating condition,
he was obligated to write a citation irrespective of negligence or excuses, it is unfair to NISC to
hold it to a strict liability standard.
The standard requires berms or guardrails at any portion of a roadway where there is a
drop-off of sufficient grade or depth to cause a vehicle to overturn or endanger persons in the
vehicle. There is no dispute that there was no berm in the area Heft referred to in the citation
documentation and in his testimony. There is also no dispute that the cited area was a roadway
used by vehicles on the mine site needing to go to the maintenance shop. (Tr.1 at 127-129) Heft
and Russell agree that a person could be thrown around in the cab if the vehicle went over the
edge of the roadway at that point. It stands to reason that cuts, bruises, strains, sprains, and
broken bones are within the ambit of reasonably likely injuries arising from this violation.
Russell acknowledged that the missing berm section needed to be fixed, which confirms the
court’s view that a reasonably prudent miner would have seen the need to fix the berm and done
so post haste. NISC’s argument that it just did not have time to get to this item yet does not avail
it anything in this strict liability regulatory environment. See, e.g. Asarco v. FMSHRC, 868 F.2d
1195 (10 th Cir. 1989). “[W]hen a violation of a mandatory safety standard occurs in a mine, the
operator is automatically assessed a civil penalty.” Id. at 1197. I conclude that NISC violated 30
CFR § 56.9300(a).
Negligence
Heft rated this violation at the level of moderate negligence. This requires that NISC
knew or should have known that the berm was missing on this section of roadway and that there
were mitigating circumstances. NISC should have and could have known about the missing
berm section. On the first day of resumed activities at the mine site, Russell did not inspect the
roadway section in question here, though he intended to get to it as soon as possible. (Tr.2 at 77;
111) NISC does not argue that it should not have known about the missing berm. It argues that
its intention was to find and fix all hazards on the mite site, but had not gotten to this one yet. In
mitigation, I credit the fact that NISC seems to have been working diligently to find and fix
hazards. I concur with Heft’s assessment of moderate negligence.

36 FMSHRC Page 2834

Gravity
This citation is characterized as reasonably likely to result in an injury involving lost
workdays or restricted duty, and potentially affecting a single miner. Given the fact that the
roadway in question was quite narrow – approximately 20 feet, was used occasionally by
vehicles needing to access the maintenance shop, showed evidence of vehicles tracking close to
the drop-off, had a drop-off of approximately five feet with a 40 percent grade, I concur that
there was a reasonable likelihood of an injury and that the injury could result in lost workdays or
restricted duty. It is well within the realm of feasible that an operator strapped into a vehicle
such as the sales loader would sustain such injuries in the event he drove over the unbermed
edge and got thrown around in the cab, even without the vehicle tipping over in the process.
Significant & Substantial
Heft designated this violation as S&S. Applying the four elements of the accepted S&S
analysis discussed above, I conclude that this violation was S&S, as charged. There was an
underlying violation of a mandatory safety standard, there was a discrete element of safety
hazard, e.g., vehicle roll-over or serious jostling in the cab, rolling over or running off the edge
could reasonably result in an injury to the driver, and the injury could involve serious bodily
harm, or worse. The Mathies S&S elements are satisfied. Mathies Coal Co., 6 FMSHRC at 3-4.
Penalty
The Secretary recommends a $540.00 penalty for this citation. I have reviewed and
confirmed the data in Exhibit A to the Secretary’s Petition for Assessment of Civil Penalty
showing the number of production hours for the mine and the mine controller, the number of
prior violations per inspection days, the number of repeat violations, the number of persons
affected by prior violations, the negligence points, the likelihood points, and the good faith point
reductions. I assess the recommended penalty of $540.00.
Citation No. 6555766
The Violation
Heft wrote Citation No. 6555766 under 30 C.F.R. § 46.9(b)(5), which requires that
training records be kept and include MSHA Form 5000-23, containing a statement by the person
designated in the MSHA-approved training plan and certifying that the miner in question has
received periodic training, as required by the training plan. Heft asked to see NISC’s training
records but did not find a Form 5000-23 annual training certificate with the appropriate
signature. (Tr.1 at 134-137; Ex. GX-15) Brian Russell was the person responsible for training
under the Part 46 Training Plan (Tr.1 at136) but Heft found that the Form 5000-23 had been
signed by Will Hoff, NISC’s field superintendent. (Tr.1 at 136-137; Tr.2 at 167-169) Hoff was
not listed as the designated signatory under the Part 46 Training Plan. Id. Hoff testified that he
signed the forms for all NISC miners because NISC was in the process of naming a new quarry
superintendent and someone with company authority had to certify that the training had taken

36 FMSHRC Page 2835

place. Hoff did the training for all other types of work as NISC. (Tr.2 at 168-169) Hoff signed
the forms at the conclusion of the training course. (Tr.2 at 169)
This is a technical violation of the standard. The training had taken place, and all
covered employees got the training. The violation consists of a clerical inconsistency and failure
to hue to the letter of the standard. Again, because of the strict liability nature of Mine Act
enforcement, Heft was within the bounds of his enforcement authority when he wrote the
citation.
Negligence
In 2011, when the training took place, former quarry superintendent Dahm had removed
the Training Plan from NISC’s premises when he was discharged and a replacement
superintendent had not yet been named. (Resp. Post-Hearing Brief at 24) Hoff stepped into
Dahm’s shoes to sign the training certificates. I agree with NISC’s argument that the purpose
behind the requirement of having a supervisor sign the training certificates was satisfied. After
the quarry reopened for the next production season, Russell was promoted to quarry foreman.
Administrator Dagnon prepared a new Training Plan which designated Russell as the training
officer. When Heft did his inspection, Russell’s name was not yet on the new training plan.
Under these circumstances, I conclude that NISC was not negligent.
Gravity
This violation is considered a paperwork violation and does not involve an assessment of
gravity.
Penalty
I assess a penalty of $20.00.
Citation No. 8662246
Violation
When he inspected Portable Mine No. 2 on September 27, 2011, Heft found four 110 volt
circuit breakers in a circuit breaker panel on the east side of the scale office that were not labeled
to show which circuit each disconnecting device controlled. (Tr.1 at 153-157) He cited NISC
under 30 CFR §56.12006, which requires that electrical distribution boxes have a disconnecting
device for each branch circuit which is appropriately labeled so that it can be visually checked to
see if a device is open and the circuit is de-energized. (Ex. GX-20) Heft found the unmarked
circuit breakers in a distribution box approximately 100 feet from the scale house. (TR.1 at 154156) Each circuit breaker was connected to one of four power cables. (Tr.1 at 156) The power
cables were used to send current to engine block heaters in the winter. Id. Heft was unable to
visually determine which circuit breaker controlled which power cable because they were not

36 FMSHRC Page 2836

labeled. (Tr.1 at 156-157) The breaker box was energized at the time of the inspection. (Tr.2 at
26) The power cables had not been used in four years, according to Russell. (Tr.2 at 120)
NISC argued that this citation should be vacated because no active mining was taking
place at Portable Mine No. 2. (Resp’s Post-Hearing Brief at 26) However, Heft’s inspection
field notes show that “man hours” had been reported in a quarterly report submitted to MSHA
and relating to Mine No. 2. (Tr.2 at 174-175) No limestone was being crushed at Mine No. 2
when Heft did his inspection. (Tr.2 at 125) However, Russell testified that limestone had been
crushed and blasted, and the crushing machine had been used at Mine No. 2 before and after
Heft’s inspection. (Tr.2 at 143-144) Mine No. 2 was also open to customers to come on site to
purchase limestone that had been previously crushed. (Tr.2 at 146; 174-175)
I credit Heft’s testimony summarized above and conclude that the lack of labeling on the
four circuit breakers and associated power cables was a violation of 30 CFR §56.12006.
Negligence
Heft assigned moderate negligence to this violation, which requires that the operator
knew or should have known about the violating condition and there were mitigating
circumstances. 30 C.F.R. §100.3(d), Table X. NISC does not argue that it did not know about
the lack of labeling on these circuit breakers and cables, but it does argue that the four year
period of disuse and its intent not to use the power cables in the future should mitigate against
the existence of a violation and be factored into the assessment of both negligence and gravity.
(Tr.2 at 27) Heft testified that the standard’s requirement of suitable marking is a matter of
common knowledge in the industry. (Tr.1 at 160-161) Heft also took into account the fact that
the breaker box was located close to the scale house office where management went on a daily
basis in his assessment of negligence. (Tr.1 at 154-155) I feel it is appropriate to consider the
disuse and lack of future plans to use the power cables as evidence of mitigation. The
Secretary’s decision to rate the negligence at the moderate level is appropriate.
Gravity
This citation is characterized as unlikely to result in lost workdays or restricted duty and
potentially affecting a single person. Heft testified he did not rate the gravity any higher than
“unlikely” because there was a master breaker switch located next to the unmarked breaker box
which could de-energize all four unmarked circuits. (Tr.1 at 159-160) I concur that the level of
gravity assigned to this violation should be “unlikely” and would potentially affect a single
miner.
Penalty
The Secretary recommends a $100.00 penalty for this citation. I have reviewed and
confirmed the data in Exhibit A to the Secretary’s Petition for Assessment of Civil Penalty
showing the number of production hours for the mine and the mine controller, the number of
prior violations per inspection days, the number of repeat violations, the number of persons

36 FMSHRC Page 2837

affected by prior violations, the negligence points, the likelihood points, and the good faith point
reductions. I assess the recommended penalty of $100.00.
Citation No. 8662247
Violation
Inspector Heft issued Citation No. 8662247 on September 27, 2011, because NISC could
not provide evidence of monthly inspections for two fire extinguishers located in the scale office.
(Tr.1 at 162-165; Ex. GX-22) An annual inspection was done on the two fire extinguishers in
June, 2011, but there was no record that the required monthly visual inspection had been done in
the interim between the annual inspection and the date of Heft’s inspection. Id. Heft concluded
that no monthly visual inspection had been done because of the missing documentation. (Tr.1 at
165-166) Any written evidence of the monthly inspection would have sufficed, including a note
on the inspection tag on the extinguisher itself or any other written record. (Tr.1 at 165-166; Ex.
GX-23) The purpose of a monthly visual inspection is to ensure that the extinguisher is charged
and operable. (Tr.1 at 163)
NISC argued that Mine No. 2 was closed on September 27, 2011, when Heft issued this
citation. (Tr.1 at 162) The mine did not reopen until November 2, 2011. (Tr.2 at 147) Heft
testified that if he had inspected Mine No. 2 during the winter shut-down, he would have
factored into his thinking that no one from NISC had been on the premises to conduct a monthly
visual inspection. (Tr.2 at 28-30) Heft stated that if there were no one on site to check the fire
extinguishers, he would not issue a citation for the months when no one was there. (Tr.2 at 31)
NISC argued that because no harm resulted from its failure to do the monthly visual inspection,
the citation should be vacated.
Heft did not issue a separate citation for every month without a visual inspection record.
He issued only one citation for the lack of records of the monthly visual inspections since the
annual check. The citation responds to the conditions discovered by Heft on the date of his
inspection. No additional liability is attributed to the fact that there were no records for several
months. This makes Heft’s failure to inquire whether anyone was present at the mine after the
annual inspection in June, 2011 meaningless for purposes of assessing strict liability. Although
the extinguishers were fully operable at the time of Heft’s inspection, there is still a violation of
the standard, which clearly requires monthly record keeping.
Negligence
Heft justified the moderate negligence designation because the extinguishers were in the
main office where it would have been very easy to do the visual check and note it. (Tr.1 at 168)
Heft felt that the blue card on the back of the extinguisher put NISC on notice that monthly
visual checks had to be done and recorded. Id. The blue card is laid out in columns for the date
of inspection and the initials of the person doing the inspection. (Ex. GX-23, pg. 3) Heft spoke
to Russell about this citation and learned that Russell was aware that a monthly visual inspection
was required, but he did not know that such an inspection had not been done since June, 2011.

36 FMSHRC Page 2838

(Tr.1 at 170-173; Ex. GX-22) Other mine employees apparently did not know that a monthly
inspection was required. (Tr.1 at 168; Tr.2 at 154-155)
I conclude that Heft appropriately considered all evidence relating to this violation in
arriving at his determination of moderate negligence. As of the date of his inspection, when
NISC personnel were on site and able to make a record of a visual fire extinguisher check, not
only was no record made, but Russell was aware that such records were required. I credit Heft’s
testimony as to what he would have done hypothetically if he had made his inspection during the
winter shut-down period as evidence of mitigation. Here there is the necessary combination of
knowledge on the part of NISC and appropriate consideration of mitigating circumstances.
Gravity
Heft characterized this violation as unlikely to result in an injury because when he
inspected the extinguishers, it appeared to him that they were mechanically sound and in good
condition and that the annual inspection had been done just three months before. (Tr.1 at 169)
NISC reminds the court that this was a no-harm-no-foul situation. I find that Heft appropriately
accounted for the NISC argument in making his “unlikely” gravity assessment.
Penalty
The Secretary recommends a $100.00 penalty for this citation. I have reviewed and
confirmed the data in Exhibit A to the Secretary’s Petition for Assessment of Civil Penalty
showing the number of production hours for the mine and the mine controller, the number of
prior violations per inspection days, the number of repeat violations, the number of persons
affected by prior violations, the negligence points, the likelihood points, and the good faith point
reductions. I assess the recommended penalty of $100.00.
Citation No. 8662248
Violation
30 CFR §56.12028 requires that electrical grounding systems be tested periodically and
records of the testing be kept for inspection on request. Inspector Heft requested records for four
pieces of equipment during his inspection on September 28, 2011, at Mine No. 2: (1) the
grounding system of the 40 kilowatt generator (“genset”); (2) the 30 horsepower Flyght
submersible pump in the pit; (3) the 110 volt outlets in the scale trailer; and (4) the four 110 volt
power cables at the breaker panel east of the scale office. (Tr.1 at 176-181; Ex. GX-24) All four
pieces of equipment were in operation at the time the citation was issued. (Tr.1 at 180-181)
NISC did not provide the requested records. (Tr.1 at 179) Heft testified that such records are
required to assure that continuity and resistance testing is done and can be verified. Since it is
not possible to visually determine if an electrical circuit is intact and free of circuit faults, these
records play an important role in assuring the safety of electrical equipment. (Tr.1 at 178-182)
Heft explained that if the resistance in a piece of equipment is too high, the overload protection

36 FMSHRC Page 2839

may not work, and if a person were to contact equipment without functioning ground protection,
he could be electrocuted. (Tr.2 at 178-182)
Russell told Heft that he believed a test had been done on the genset and pump, but there
was no record because it was done by a person who was no longer an employee of the company.
(Tr.1 at 183-185; Ex. GX-24) Russell stated that he had observed NISC’s former foreman, John
Dahm, conduct continuity and resistance testing for the genset and submersible pump during the
prior production year. (Tr.2 at 126-127) Russell did not see Dahm do the testing on the 110 volt
outlets in the scale house or the power cords at the distribution box. (Tr.2 at 127-128) Russell
confirmed that he did not give Heft any records proving that continuity and resistance testing had
been done on any of the equipment. (Tr.2 at 142)
NISC argued that Dahm had done the continuity and resistance testing (Tr.2 at 38-40),
and that he had taken the testing records with him when his employment at NISC ended. (Tr.2 at
64; 142) NISC points out that Russell told Heft that he was aware that Dahm had done the
testing on the pump and genset (Tr.2 at 39-40) and believed that Dahm had done a continuity and
resistance test on anything that had a motor at Mine No. 2. (Tr.2 at 127) It also contended that
Heft’s citation and related documentation did not mention the keeping and production of testing
records. (Resp. Post-Hearing Brief at 29)
The thrust of NISC’s defense is that the Secretary failed to prove that the testing had not
been done. This misses the point. The standard requires that records be kept as proof of testing.
Russell’s parole evidence about what he saw Dahm do and what Dahm must have done in
keeping with his reputation as a conscientious foreman (Tr.2 at 127-128) does not satisfy the
requirements of the standard. The record is clear. NISC did not produce the required testing
records on request.
The standard is unambiguous. It requires that “[continuity and resistance of grounding
system shall be tested immediately after installation, repair, and modification; and annually
thereafter. A record of the resistance measured during the most recent test shall be made
available on a request by the Secretary or his duly authorized representative.” 30 CFR
§56.12028 NISC violated the standard by failing to produce the requested records, which
implies that no such testing had been done for the four pieces of equipment identified above.
(Tr.1 at 176-181; Ex. GX-24) See Knaak Sand, 24 FMSHRC 964, 966 (Nov. 2002)(ALJ
Feldman).
Negligence
Heft testified that the operator should have known to do continuity and resistance testing
before placing the equipment into operation. (Tr.2 at 182) Russell’s testimony that he observed
Dahm perform the tests on some of the equipment during the prior production year and his belief
that Dahm had tested everything on the motor with an electric motor is confirmation that NISC
knew it was obligated to perform the testing. The testimony that Dahm had taken the testing
records when he left NISC shows that NISC was aware of the obligation to keep the records.
Again, in this strict liability setting, NISC’s excuse for not being able to produce the records

36 FMSHRC Page 2840

does not obviate its duty to comply with the standard. The excuse is, however, an element of
mitigation which supports Heft’s designating this violation as involving moderate negligence. I
concur.
Gravity
Heft issued this citation as unlikely to result in injury because the equipment looked to be
in good condition. (Tr. 2 at 182-183) NISC does not offer any argument against this element. I
agree that this violation was unlikely to result in a miner injury.
Penalty
The Secretary recommends a $100.00 penalty for this citation. I have reviewed and
confirmed the data in Exhibit A to the Secretary’s Petition for Assessment of Civil Penalty
showing the number of production hours for the mine and the mine controller, the number of
prior violations per inspection days, the number of repeat violations, the number of persons
affected by prior violations, the negligence points, the likelihood points, and the good faith point
reductions. I assess the recommended penalty of $100.00.

36 FMSHRC Page 2841

ORDER
Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C.§820(I), I assess the
penalties summarized in the following table for the citations discussed above. NISC is
ORDERED to pay the Secretary of Labor the sum of $4,874.00 within 30 days of the date of
this decision. It is also ORDERED that Citation No. 6555763 be VACATED.
Citation No. 6555758

$101.00

Citation No. 6555759

$807.00

Citation No. 6555760

$108.00

Citation No. 6555761

$1,795.00

Citation No. 6555762

$1,203.00

Citation No. 6555763

Vacated

Citation No. 6555764

$540.00

Citation No. 6555766

$20.00

Citation No. 8662246

$100.00

Citation No. 8662247

$100.00

Citation No. 8662248

$100.00
Total: $4,874.00

/s/ L. Zane Gill
L. Zane Gill
Administrative Law Judge

Distribution:
Sean J. Allen, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 800, Denver, CO 80202-5708
Peter DeBruyne, Esq., Peter DeBruyne P.C., 838 North Main Street, Rockford, IL 61103

36 FMSHRC Page 2842

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: 412-928-8689

November 14, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of FRED MCKINSEY,
Complainant

DISCRIMINATION PROCEEDING
Docket No. SE 2014-344 DM
MSHA Case No.: SE MD 14-12

v.
PRETTY GOOD SAND COMPANY,
INC.,
Respondent

Mine: Great Pit
Mine ID: 31-02014

DECISION
Appearances:

Uche N. Egemonye, Esq., Office of the Solicitor, U.S. Department of
Labor, Atlanta, GA, Representing the Secretary of Labor
Matthew R. Korn, Esq., Fisher & Phillips, LLP, Columbia, SC,
Representing Respondent

Before:

Judge Lewis

This case is before me upon a complaint of discrimination brought by the Secretary of
Labor (“Secretary”) on behalf of Fred McKinsey (“McKinsey”), a miner, against Pretty Good
Sand Company, Inc., a corporation (“PGSC”), pursuant to § 105(c) of the Federal Mine Safety
and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c).
Complainant McKinsey alleged that Respondent unlawfully discharged him in January
2014, after he made a safety complaint to the Mine Safety and Health Administration (“MSHA”)
on November 25, 2013.
On February 18, 2014, McKinsey filed a discrimination complaint with MSHA. After
conducting an investigation, the Secretary found that McKinsey’s assertion was not frivolously
brought and filed an Application for Temporary Reinstatement on March 26, 2014. Respondent
requested a hearing regarding this application on April 10, 2014, via conference call. A hearing
was held in Rocky Mount, NC on April 30, 2014. On May 6, 2014, the undersigned issued a
Decision and Order Temporarily Reinstating McKinsey to his former position with PGSC.

36 FMSHRC Page 2843

On June 3, 2014, the Secretary filed a complaint on McKinsey’s behalf with MSHA
alleging discrimination under Section 105(c) of the Mine Act. On June 16, 2014, the Secretary
filed an amended Discrimination Complaint to include the civil penalties assessed by MSHA.
On June 17, 2014, the parties submitted a Joint Motion to Amend Order of
Reinstatement. Under the terms of that agreement, McKinsey would be economically reinstated
rather than physically reinstated to the mine, retroactive to the date of the Decision and Order.
On June 19, 2014 the undersigned issued a decision and order granting the economic
reinstatement of McKinsey.
The discrimination hearing was held in Rocky Mount, North Carolina on July 22 and 23,
2014, at which both the Secretary and Respondent presented evidence and testimony. Subsequent
to the hearing both parties submitted briefs which have been received and considered in
rendering this decision.
For reasons set forth below, I find that the Secretary has presented a prima facie case of
discrimination, and that the Respondent has failed to present an affirmative defense as it did not
present a valid business justification for terminating the Complainant based on an accumulation
of poor work performance and insubordination. However, the after-acquired evidence submitted
by Respondent supports an independent non-discriminatory basis for the Complainant’s
dismissal.
I. Stipulations
10)1:

At the hearing, the Secretary and PGSC entered into the following stipulations (Tr. 9a. PGSC is and was at all relevant times through this proceeding the operator of the
Great Pit Mine, Mine ID number 31-02014.
b. Great Pit is a mine. The term mine is defined in Section 3(h) of the Mine Act, 30
U.S.C § 802(h).
c. At all times relevant to this proceeding, products of Great Pit Mine entered
commerce, are the operations of products thereof affecting commerce within the
meanings and scope of section 4 for Mine Act, 30 I.S.C. § 803.
d. PGSC is an operator, as the term operator is defined in Section 3(d) of the Mine Act,
30 U.S.C. § 802(d).
e. McKinsey was previously employed by PGSC. McKinsey is a miner within the
meaning of Section 3(g) of the Mine Act, 30 U.S.C. 302(g).
1

“Tr.” followed by a number refers to the appropriate page in the hearing transcript.

36 FMSHRC Page 2844

f. McKinsey was terminated from PGSC on January 10, 2014.
g. PGSC is subject to the jurisdiction of the Federal Mine Safety and Health Review
Commission. The presiding administrative law judge has authority to hear this case
and issue a decision regarding this case pursuant to Section 105 of the Act, 30 U.S.C.
§ 815 as amended. (Tr. 9-10).
II. Summary of the Testimony
A. Fred McKinsey
Fred McKinsey began working at PGSC as a general laborer and equipment operator in
July 2013. Prior to his employment with PGSC, McKinsey worked as a mechanic for 30 years in
various capacities. (Tr. 45-46). The owner/operator of PGSC and Great Pit Mine, Roger
Sauerborn (“Sauerborn”), hired McKinsey. (Tr. 25-26). During his initial interview for
employment, McKinsey revealed to Sauerborn that he had Asperger’s syndrome and detailed the
effects it had on his personality and behavior. McKinsey explained that he liked to be left alone
and “didn’t deal the best in the world with a lot of people situations.” [sic] (Tr. 27). McKinsey
further explained that he did not like to shake hands or touch people and felt stress when
attention was focused on him. (Tr. 27-28). At the conclusion of the interview, McKinsey signed
a non-compete clause and began employment with PGSC. (Tr. 28-29; GX1).2
McKinsey’s starting pay was $15 per hour and he worked an average of 45 hours a week.
(Tr. 29). Dennis Cannon was McKinsey’s initial supervisor and Cannon provided McKinsey
work related instructions, which varied daily. McKinsey remained in this position for
approximately two months before Sauerborn promoted him to supervisor. (Tr. 30-31). With the
promotion, McKinsey received a raise of $2.75 per hour, which increased his salary to $17.75
per hour. The new supervisory position also increased McKinsey’s responsibility, which
included managing other employees and ensuring the safety and efficiency of the sand pit. (Tr.
31). McKinsey was required to fill out and review safety worksheets for equipment that the
company used in the day-to-day operations. He would also fix machinery that he was able and
permitted to fix, while bringing any major repair issues to Sauerborn. (Tr. 32-34; GX 2).
McKinsey testified that he was not permitted to make repairs that would cost more than $100$150 without first consulting Sauerborn. (Tr. 35, 47).
In his position as supervisor, McKinsey would make safety complaints to Sauerborn.
Such complaints included issues with the high walls, as well as one incident where individuals
were caught rifle-hunting on company property. (Tr. 35-36). McKinsey testified that Sauerborn
would frequently deflect the safety complaints. (Tr. 36). Because Sauerborn refused to take
action regarding the safety complaints, McKinsey filed a hazard complaint with MSHA on
November 25, 2013, by calling a hotline number he found online. (Tr. 77). At the time,
McKinsey felt that calling in safety complaints was “generally frowned upon by coworkers and
employees,” so he did not reveal that he made the call. (Tr. 77-78).
2

The abbreviation “GX” refers to government’s exhibit. The abbreviation “RX” refers to
Respondent’s exhibits.

36 FMSHRC Page 2845

McKinsey called MSHA on two separate occasions during which time he complained of
“unsafe equipment, high walls and hunting on company property.” (Tr. 36-37). The first phone
call was on November 25, 2013, and the inspector came to the site the following day. McKinsey
made the second phone call while this inspection was being conducted because he testified that
he had forgotten to mention the highwall issue in the original complaint call. (Tr. 39-40).
Sauerborn closed the site following the inspection and gave the employees time off from
Wednesday, November 27, through the Thanksgiving weekend. (Tr. 37, 39).
Upon returning to work the following Monday, December 2, McKinsey felt Sauerborn’s
attitude toward him had changed. (Tr. 40). McKinsey testified that Sauerborn treated him
differently and would single him out and belittle him. (Tr. 38-41, 96).
McKinsey did not remember the precise reasons that he stated led Sauerborn to
discriminate against him - whether it was for his Asperger’s syndrome or something else- but he
felt he was targeted in ways that he told Sauerborn “just don’t work with him.” (sic) (Tr. 90-91,
93, 96).
McKinsey did not reveal that he was the person who called in the complaint, but he did
inquire verbally as to why he was being treated differently after the inspection. (Tr. 81-84). Prior
to the inspection, McKinsey testified that he was not formally written up, disciplined or verbally
reprimanded by Sauerborn. (Tr. 41, 74-75). After the inspection, Sauerborn began sending emails to McKinsey regarding his work performance and the fact that someone called MSHA to
report a complaint. (Tr. 42).
The first e-mail was sent December 7, 2013. (Tr. 42; GX 3). The email raised the
following issues: cracked mirrors on the D-250, installation of the flashboard on site, clay being
improperly dumped in a drain fill area, issues with a berm, mechanical issues with a baby loader,
inspection of the site’s Suburban vehicle, repair of the site’s International Truck and a wheel
coming off a dump trailer. McKinsey felt the e-mail was accusatory in nature because it
referenced the call to MSHA and asked him “what have you learned from this incident?” which
McKinsey understood to be an accusation. (Tr. 48-49).
On redirect examination, McKinsey discussed the content of the e-mail sent December 7,
2013 in more depth. (Tr. 568; GX 3). McKinsey recalled the mirrors on the D-250 haul truck
were cracked and Sauerborn said they had been cracked for years. Sauerborn also stated the
mirrors were not an issue, and McKinsey could use the truck. (Tr. 568-569). Later, Sauerborn
approached McKinsey and told him to park the truck and find replacement mirrors in the
boneyard.3 (Tr. 569). After not being able to locate the proper mirrors, Sauerborn instructed
McKinsey to replace them with mirrors that were made to fit other types of vehicles. (Tr. 569570, 594). Ultimately the mirrors were loose and vibrated when the machine was operated. (Tr.
570).

3

A boneyard is a place where refuse, especially discarded cars, accumulates or is kept.
The American Heritage dictionary of the English language, 4th edition, Houghton Mifflin
Harcourt Publishing Company, 2009.

36 FMSHRC Page 2846

The next issue mentioned in the December 7, 2013, email concerned PGSC employees
Matt and Josh Lane installing flashboard risers.4 Matt did not go to the site but Sauerborn and
Lane went to repair the flashboard risers and McKinsey was unable to reach either of them by
radio. McKinsey did not attempt a phone call to either because in his experience they rarely
answered phones at the job site. McKinsey took a vehicle on the path to see where they were.5
(Tr. 571-572).
McKinsey testified that he did not put clay in the drain fill area as Sauerborn stated in the
email. (Tr. 572). McKinsey claimed that he was never in the drain fill area and followed
Sauerborn’s instructions regarding where to dump the clay. (Tr. 573-575). McKinsey also stated
that it was part of everyone’s duty to maintain the berms. McKinsey would have completed any
berm he was working on had he seen a problem, but he could not be sure to which area the
citation referred. (Tr. 575-576).
McKinsey admitted there was a mechanical issue with the WA-300 baby loader but
refuted the fact that he said the WA-300 baby loader was going to “break in half” as Sauerborn
stated in the email. McKinsey believed Sauerborn exaggerated what was written on the pre-shift
sheet in the email and in his testimony. (Tr. 576-577).
In the email, Sauerborn also accused McKinsey of improperly repairing the site’s dump
trailer. At the hearing McKinsey denied that his repair work was the reason for the wheel coming
off the dump trailer. If anything had been wrong with his repairs, the issues would have become
apparent when he replaced the brake plate on the axle. (Tr. 578-580).
When Sauerborn asked McKinsey to prepare the Suburban for inspection, McKinsey ran
a diagnostic check and discovered the Suburban would require extensive repairs. McKinsey
spent all day on the repairs focusing on what he thought was most important to fix and worked
six hours of overtime on the vehicle. (Tr. 580-583). At the conclusion of the work, the Suburban
was still not ready for inspection and McKinsey informed Sauerborn of the situation. (Tr. 583).
Finally, the December 7, 2013, e-mail referred to the day Sauerborn instructed McKinsey
to make the International Truck at the mine site “road worthy.” McKinsey did not have the
required parts to do so because Sauerborn wanted him to use parts from another truck at the
mine. (Tr. 583-584). McKinsey had trouble with the repairs because both trucks were old and
both had worn out parts. (Tr. 584). Additionally, once McKinsey began work on the truck,
Sauerborn interrupted him several times, making it difficult to finish the job. (Tr. 585).
Sauerborn sent a second e-mail to McKinsey on December 11, 2013, which was the day
McKinsey was demoted and Lane was promoted to the supervisory position. (Tr. 52-53, 55; GX
5). At the hearing, McKinsey indicated that the e-mail was sent after Sauerborn reduced his
hours, began treating him poorly and sent him home. (Tr. 49-51; GX 4). Additionally, a
handwritten note was attached to McKinsey’s time card that described Sauerborn’s issues with
4

The last name for the PGSC employee Matt was not used at the hearing.

5

Sauerborn’s testimony stated that taking a vehicle to the job site before exhausting all
other means of communication was against company policy.

36 FMSHRC Page 2847

McKinsey’s work performance. McKinsey further testified that he was not sure why he was
demoted, but stated that Sauerborn did not reduce his pay in connection with the demotion. (Tr.
55, 85-86).
The third and final e-mail was sent to McKinsey on December 30, 2013. This e-mail
referenced prior interactions between Sauerborn and McKinsey on December 20, 2013 that
resulted in Sauerborn sending McKinsey home early and McKinsey refusing to leave. (Tr. 54;
GX6).
McKinsey testified that he did not end his employment with PGSC voluntarily. (Tr. 56).
He claimed he was fired after an incident that occurred on January 10, 2014. From the office,
Sauerborn observed McKinsey cleaning up the area around a truck without a raincoat. Sauerborn
retrieved a raincoat from the back of his vehicle and instructed McKinsey to wear it. (Tr. 56-57).
When McKinsey told Sauerborn “no” because the raincoat was dirty and he did not like to wear
other people’s clothing, he was instructed to clock out and leave. No other employee was asked
to don a raincoat nor did Sauerborn have additional raincoats available for the other employees
in the field. (Tr. 57-60, 93-94, 130-131, 592-593).
McKinsey testified that he was unaware of a company policy requiring the use of a
raincoat, and the rain was only “barely sprinkling.” (Tr. 58, 60). After the encounter, Sauerborn
returned to his vehicle and left the area where McKinsey was cleaning. McKinsey attempted to
catch up with him and ask why he had to clock out, but was unable to do so because of an injured
left foot. McKinsey testified that Sauerborn proceeded to attempt to run McKinsey over with his
car. (Tr. 59-60, 94). McKinsey did not report Sauerborn to the police for allegedly trying to run
him over with his car. (Tr. 93-94, 130).
On cross-examination McKinsey did not recall telling anyone connected to the
Respondent about making the safety complaint, but did admit to telling friends unrelated to the
company. (Tr. 98). McKinsey stated that he could not recall whether he mentioned something to
Carol Medlin, a temporary secretary. (Tr. 98-99). McKinsey also did not recall telling the
Employment Security Commission he was being harassed or discriminated against for the safety
complaint he made to MSHA. (Tr. 115).
He admitted to posting a comment to Facebook about his termination and remarking on
the discrimination as well as Asperger’s syndrome. 6 (Tr. 119, 122-124). Lastly, McKinsey
testified that the MSHA inspector informed him he could file a discrimination complaint after
being terminated. (Tr. 130).
McKinsey was fired via text message and e-mail on January 13, 2014. (Tr. 61-62; GX 7).
McKinsey has been unemployed since his termination and has actively been looking for work.
6

The Facebook posts in pertinent part stated: “. . . I was fired from a job on 1/13/14 and
have literally no means to support myself and at best it’s nearly impossible to find a job in my
area. Unless it’s with someone that I already know is abusive. Where can I go to find help? I'm
desperate and so ready for this life to be over.” “…In fact yesterday morning I was fired because
the boss man refused to recognize that I have a condition beyond what he can understand. In fact
the owner of the company regularly picked on me and harassed me.” (RX 4).

36 FMSHRC Page 2848

(Tr. 63-65, 73, 99-100; GX 8). McKinsey does not want PGSC to reinstate him to his prior
position. (Tr. 94-95). McKinsey has deferred his house payment and incurred late fees on various
bills because of his termination. Additionally, he has accrued legal fees from consulting with a
lawyer in connection with his termination. (Tr. 65-67, 125-126; GX 9). McKinsey did not
remember the first time he contacted an attorney, but testified that he contacted attorneys “a
whole lot,” after January 2014 in an attempt to hire one for these proceedings. (Tr. 91-92).
McKinsey also testified to being without health insurance from the date of his firing to his
temporary economic reinstatement on May 6, 2014. (Tr. 68, 107, 124-125).
B. Roger Sauerborn
Roger Sauerborn testified that he is a consulting forester, a North Carolina real estate
broker, and the owner of PGSC, a company that manufactures state approved concrete sand and
mortar sand. PGSC also sells topsoil, fill sand, fill clay, sandy gravel and crushed rock. (Tr. 329330). Sauerborn has owned the company since approximately 1987. (Tr. 330).
During the time McKinsey was employed with PGSC, there were nine employees. The
employees’ duties included loading trucks, running the plant, weighing the trucks out, invoicing
tickets, and sending billings. (Tr. 330). PGSC was a small corporation and its net worth was
“about a half million dollars” at the time the discrimination complaint was filed. (Tr. 331).
Sauerborn testified that there was an employee handbook provided to all new employees
and the handbook was in effect at the time McKinsey was hired. (Tr. 331-332; RX 9). The
handbook discusses types of behavior that are considered inappropriate or unacceptable. (Tr.
332). Sauerborn believes McKinsey received the handbook as part of the hiring procedure;
however, McKinsey did not sign an acknowledgment form saying he received it because that
was not procedure at the time. (Tr. 334-335).
Sauerborn hired McKinsey in July 2013, as a mechanic. (Tr. 336). McKinsey was hired
with the understanding that the company would train him to complete other tasks because he had
expressed an interest in learning all facets of the company’s operation. (Tr. 337).
At the initial interview for employment, Sauerborn felt McKinsey possessed the skills
necessary to perform the job as a mechanic at PGSC and that he would be well-suited for the
position given his employment history. (Tr. 337-338). During the interview, McKinsey informed
Sauerborn that he had Asperger’s syndrome. (Tr. 338). Sauerborn had two nephews with autism
and believed that he had some understanding of the condition and that knowledge could help
McKinsey focus on his job. (Tr. 339). At the beginning of his employment, Sauerborn found
McKinsey to be a good employee. (Tr. 339).
However, Sauerborn began noticing issues with McKinsey’s employment sometime in
August, 2013, when McKinsey and Dina Davis had a disagreement concerning use of the phone
in the office. (Tr. 339). Sauerborn instructed Davis to write a letter regarding her version of the
disagreement. (Tr. 339-340; RX 10). Sauerborn testified that the disagreement was over a new
procedure that Davis and Dennis Cannon worked out concerning phone communication around
Davis’ desk. (Tr. 341). McKinsey was not yet informed of the new procedure and he asked to
use the phone around Davis’ desk. Davis told McKinsey to use another phone and an escalating

36 FMSHRC Page 2849

confrontation occurred. Sauerborn believes McKinsey swore at Davis. (Tr. 341). Sauerborn
testified that he discussed the incident with McKinsey, explained to him that his behavior was
improper, and provided him an opportunity to write his own statement, but McKinsey chose not
to do so. (Tr. 342-343). Sauerborn considered this conversation to be a verbal warning. (Tr. 342343).
In September of 2013, shortly after this incident with Davis and after Cannon was
terminated, Sauerborn promoted McKinsey to a supervisor position. (Tr. 343). McKinsey
expressed interest in the job and Sauerborn believed that he would be a good supervisor.
Sauerborn explained that there was a need for a supervisor because he was busy with other
business obligations. (Tr. 343-344). McKinsey’s promotion resulted in a raise, which increased
his hourly pay from $15 to $17.75 an hour. (Tr. 344).
After a week in his new position as supervisor, McKinsey and Davis were involved in a
second incident regarding a disagreement over a payroll estimate on McKinsey’s new paycheck.
During this incident, Sauerborn testified that McKinsey swore and acted “really inappropriate.”
Davis wrote a letter detailing the events that occurred during the incident. (Tr. 345-346; RX 11).
On September 10, 2013, Sauerborn discussed the issue with McKinsey and gave him an
opportunity to write a statement, which McKinsey again chose not to do. (Tr. 348). Sauerborn
testified that he also considered this conversation to be a verbal warning to McKinsey. (Tr. 349).
Sauerborn recalled two other incidents regarding McKinsey’s work performance and
referred to the text message record to clarify his testimony. (Tr. 349; RX 25). The first incident
occurred in September and involved a bearing that had worn out and stopped production at the
plant. (Tr. 351). The bearing needed to be replaced, yet McKinsey could not locate a
replacement. Sauerborn testified that it was McKinsey’s responsibility to keep an extra bearing
available. (Tr. 351). Sauerborn ended up finding a replacement at a nearby store and picked it up
on his way back to the pit. When Sauerborn arrived back, he felt that McKinsey was rude to him
in front of several other employees. McKinsey blamed Sauerborn for not being able to locate an
extra bearing because Sauerborn was “calling every few minutes.” (Tr. 351-352). Sauerborn told
McKinsey a number of times to praise people in public and say negative things privately. (Tr.
352-353, 355-356). Sauerborn gave a written warning to McKinsey regarding this incident on
September 17, 2013. (Tr.353-354; RX 12). McKinsey disagreed with the letter because he felt
Sauerborn contacted him too much, thereby inhibiting his ability to locate a bearing. (Tr. 354).
Sauerborn did not feel as if he contacted McKinsey too much that day. (Tr. 354-355).
The second incident occurred in December and involved a work truck that required a fuel
line cleaning. (Tr. 349). Specifically, McKinsey wanted to perform $3,000 worth of repairs when
Sauerborn believed that the truck only needed a $30 replacement piece. (Tr. 350). Sauerborn
considered this to be inadequate performance on McKinsey’s behalf. (Tr. 350).
On December 7, 2013, Sauerborn created a document detailing roughly a month of
McKinsey’s performance issues and sent it to McKinsey via email. (Tr. 357-358, 485-488; RX
13). Sauerborn testified that he did not write the e-mail regarding these incidents until December
7, 2013 because he was busy investing his time into his other businesses. (Tr. 366, 369).

36 FMSHRC Page 2850

The December 7, 2013, email addressed the following issues Sauerborn had with
McKinsey’s performance. At the hearing, Sauerborn testified about the contents of the e-mail:


In the e-mail Sauerborn addressed the lack of communication regarding work
assignments and the quality of that communication. Sauerborn testified that he
thought communication could improve between them and he felt McKinsey
needed to communicate more effectively. (Tr. 360-362).



In the e-mail Sauerborn also addressed an incident when McKinsey was driving a
truck with broken mirrors on November 18, 2013. McKinsey failed to indicate the
damage on the pre-shift report, which is a guaranteed citation. (Tr. 363). Another
argument took place regarding the replacement of the mirror. Sauerborn felt
McKinsey did not properly perform his duty as foreman because he failed to
replace or report the broken mirror. (Tr. 364-365).



On November 20, 2013, McKinsey did not follow procedure by ensuring tasks
were completed by the employees who were assigned to complete them which
Sauerborn addressed in the e-mail. Sauerborn testified that when he followed up
with McKinsey two days later he discovered that Matt had a recurrence of a
hernia and McKinsey failed to obtain a doctor’s note from him and did not inform
Sauerborn of Matt’s condition as required. (Tr. 367-368).



On November 21, 2013, McKinsey dumped clay on a tract of land that was being
built up for use as a residential property which Sauerborn stated in the e-mail.
Sauerborn testified that he instructed McKinsey not to dump clay in the only area
a septic tank could be placed. Sauerborn contends McKinsey dumped the clay
there despite being told not to do so. McKinsey again dumped clay there the
following day and may have destroyed the potential land use. (Tr. 369-372).



An unknown person called MSHA with five allegations of wrongdoing and then a
sixth was called during the inspection on November 26, 2013. The e-mail stated
that McKinsey volunteered that he did not call MSHA but suggested it may have
been one of his girlfriends or Josh Lane’s parents. Sauerborn testified that at the
time McKinsey made the statement he did not know which one of the employees
called MSHA, but he knew the statements were too specific to come from the
public. (Tr. 374).



The e-mail stated that McKinsey also failed to alert Sauerborn of a “noise” issue
with the WA-300 machine, which could have been repaired for $500 and
ultimately cost $5,000 to fix because of the fine from MSHA. Sauerborn testified
that McKinsey, as a supervisor and mechanic, should have known that repairs
were needed and alerted Sauerborn via the office white board. (Tr. 376-378, 429430).

36 FMSHRC Page 2851



The e-mail addressed repair issues concerning a dump trailer that McKinsey
cleared for operation but 30 miles of use resulted in the trailer losing a wheel on
November 27, 2013. Sauerborn testified that he blamed McKinsey’s repairs for
the issue and also testified that the issue should have been identified by McKinsey
during his inspection of the vehicle before putting it back in service. (Tr. 379380).



The e-mail stated that Sauerborn instructed McKinsey to prepare the Suburban on
site for inspection around November 20, 2013. (Tr. 380). Sauerborn testified that
after charging six hours of overtime to fix the Suburban, McKinsey still had not
completed the repairs needed for a passing inspection and Sauerborn experienced
issues when driving the vehicle. (Tr. 380-383; RX 14).



The e-mail referred to a note Sauerborn left on McKinsey’s timecard on
December 5, 2013, instructing McKinsey to fix the International Truck on site
because the steering linkage needed to be swapped. Sauerborn testified that
McKinsey ignored his request to fix the International Truck and Sauerborn found
McKinsey a half mile away in an area that was “important but unurgent.” (sic).
(Tr. 385-386). When Sauerborn confronted McKinsey about the International
Truck not being operable, McKinsey said he was leaving early and did not fix the
issue. McKinsey also stated Sauerborn was not his supervisor and he did not have
to inform him when he was leaving early. (Tr. 386-387).



The last item in the e-mail warned McKinsey that if he disrespected Sauerborn in
front of others again, he would be sent home and have his hours cut. (Tr. 388).
Sauerborn testified that he did not permanently cut McKinsey’s hours but he did
reduce them the following Monday after the International Truck incident by
telling him to come in at noon the following Monday. Id.

Sauerborn did not consider terminating McKinsey after the incidents described in the
December 7 email. Rather, he wanted to make allowances for McKinsey’s Asperger’s syndrome
and to articulate that his choices had consequences. (Tr. 388-389). Sauerborn considered his
discipline policy as progressive discipline that included verbal warnings, written warnings, time
cuts, and sometimes pay-cuts. (Tr. 389, 407).
On December 11, Sauerborn demoted McKinsey from his supervisory role. He did not,
however, reduce his pay because McKinsey threatened to quit if his pay was reduced. (Tr. 390,
393). Sauerborn decided to promote Lane to McKinsey’s supervisory position. He felt that as
McKinsey’s cousin, Lane could help steer him in the right direction. (Tr. 408). Sauerborn
testified that McKinsey was demoted because he chose to work in the rain despite verbal and
written policies not to work in the rain. (Tr. 391). On December 11, Sauerborn also gave a list to
McKinsey that contained tasks to complete if it was raining and tasks to complete if it was not
raining. (Tr. 392; RX 15). McKinsey did not follow the written instructions on the list and
changed a tire on an Explorer in the rain despite shelter being available. (Tr. 394-395).

36 FMSHRC Page 2852

On December 11, Sauerborn created another list of tasks for McKinsey and was
disappointed to see McKinsey had not completed the third item. (Tr. 397; RX 16). McKinsey had
damaged the four-wheeler and he did not fix it or report it; therefore, Sauerborn was unable to
use it. (Tr. 397-398).
There was also a handwritten letter drafted on December 11, in which Sauerborn
addressed communication and performance issues regarding the lists. (Tr. 400; RX 17).
Sauerborn testified that policies about working in the rain were in place because during the cold
winter months he feared his employees would get their clothes soaked and then need a change of
clothes and/or end up getting ill. (Tr. 401). Sauerborn testified that during his 30 years of
ownership, he had believed that employees had contracted the flu from working in the outdoor
environment. He also testified that he considered a raincoat as being necessary protective
garment. (Tr. 402).
The letter to McKinsey also praised his work on a successful reinstall of 330 boom
cylinders. (Tr. 403). However, Sauerborn was concerned with McKinsey’s choice not to take a
lunch or bathroom break because those activities were not on the list. Sauerborn did not think he
should have to write those activities down. (Tr. 404). Sauerborn also referenced a phone call
between he and McKinsey where McKinsey became upset because he felt Sauerborn hung up on
him. (Tr. 405). Due to the phone incident, McKinsey addressed Carol Medlin in a loud voice
when Sauerborn was present in a way that Sauerborn categorized as “bullying.” (Tr. 405-406).
The letter also stated that during a meeting they had earlier on December 11, McKinsey
would not reveal to Sauerborn the name of the lawyer he contacted. Sauerborn testified that
McKinsey accused him of discriminating against him because of his Asperger’s syndrome (and
Sauerborn’s disbelief that he had the syndrome), but he never claimed Sauerborn discriminated
against him for the safety complaint call. (Tr. 411-412). Sauerborn noted these events in the
letter dated December 11, 2013. (Tr. 410; RX 18). McKinsey did not take the opportunity to
comment on the letter. (Tr. 413).
On December 20, Sauerborn attempted to say “hello” to McKinsey while he and Lane
were driving in the Suburban. (Tr. 413). McKinsey exited the vehicle and told Sauerborn in a
loud voice that he was discriminating against him. Id. McKinsey then began to advance toward
Sauerborn. Sauerborn put up his hands and told McKinsey to clock out for an hour and cool off
because the company Christmas party was later that day. (Tr. 413-414, 416-417). Sauerborn
noted this event in a letter signed by Lane, dated December 30, 2013. (Tr. 414-415; RX 19).
A second incident occurred when McKinsey and Lane were working on the 300 bushings
and Sauerborn again said “hello” to McKinsey. McKinsey once again accused Sauerborn of
discriminating against him because of his Asperger’s syndrome. (Tr. 418, 493). Sauerborn then
asked him to clock out, which McKinsey did not do, so Sauerborn instructed Lane to send
McKinsey home. Id. Sauerborn asked Lane and Ms. Medlin to document the incident and to put
in their own words what they had observed. (Tr. 420-421; RX 20-21). Sauerborn did not fire
McKinsey that day because he was still holding out hope that McKinsey would do better. (Tr.
422).

36 FMSHRC Page 2853

On January 13, 2014, Sauerborn sent an e-mail terminating McKinsey’s employment and
explaining the reasons for the termination. (Tr. 423; RX 22). Sauerborn drafted the e-mail at 3:15
pm on January 10, 2014. (Tr. 424). Sauerborn testified that he fired McKinsey because of a
“progression of action and inaction” on McKinsey’s part over the course of his employment.
However, there was one particular incident that occurred on January 10, which prompted
Sauerborn to terminate McKinsey. When Sauerborn arrived at work there was a “misting” rain,
so he retrieved a fresh raincoat out of the break room and asked McKinsey to put it on. (Tr. 425).
McKinsey said “no,” so Sauerborn instructed him to clock out. Sauerborn testified that at that
point, McKinsey became noticeably agitated so Sauerborn got back into his car. As Sauerborn
was trying to pull away, McKinsey jumped on the hood of his car and climbed up to the
windshield. (Tr. 425-427). Sauerborn stopped the car and reached for his camera phone in an
effort to film McKinsey as evidence. When McKinsey jumped off the car and cleared the path,
Sauerborn left the premises and later texted Lane to send McKinsey home. (Tr. 425-428).
Sauerborn considered McKinsey’s response of “no” when asked to put on the raincoat to be an
act of insubordination. (Tr. 427). Sauerborn also testified that McKinsey’s action of jumping on
the hood of the car was part of the reason for termination. (Tr. 433). Sauerborn did not call the
police about the incident but informed Lane to call the sheriff if McKinsey did not leave the pit.
(Tr. 499-500). After he returned to the pit, Sauerborn had Lane and Rogers Leggett put raincoats
on as well. (Tr. 498, 510). Lane also drafted a witness statement about the incident. (Tr. 432; RX
23).
Sauerborn testified that he felt threatened after he contacted Calvin Lynch and heard his
description of what happened on December 20, 2013 (discussed infra). (Tr. 444). After learning
of the events, Sauerborn moved his place of residence. (Tr. 446). He also informed MSHA
Special Investigator LaRue of the threat. (Tr. 447). Sauerborn did not directly tell LaRue that he
fired McKinsey for insubordination but described the incident on January 10, 2014, as “the straw
that broke the camel’s back.” (Tr. 501).
Sauerborn testified that he encourages employee safety because his brother died trying to
save someone from an unsafe condition in the navy. (Tr. 449-450). He further denied firing
McKinsey for calling in the hazard complaint. (Tr. 451). The first time he was sure McKinsey
called in the complaint was when McKinsey filed EEOC documents. (Tr. 451-452).
On cross-examination Sauerborn acknowledged that when he observed Davis disobeying
doctor’s orders he wrote her up and gave her the opportunity to explain her side of the situation
in writing. (Tr. 461-465; GX 21, RX 10). However, Sauerborn did not write a letter reprimanding
McKinsey for the incident regarding the new phone policy. Only a verbal warning was given.
(Tr. 466). Sauerborn concedes that he did not know whether McKinsey knew about the new
phone rule. (Tr. 467). Sauerborn also never documented in a letter that McKinsey shouted or
cursed at Davis during the incident. (Tr. 469). Sauerborn did not afford McKinsey an opportunity
to respond in writing to the incident but believes he treated McKinsey and Davis the same way.
(Tr. 472).
Sauerborn testified that he gave McKinsey wide latitude in ordering parts and supplies
stating that McKinsey could order parts up $300-$400. (Tr. 474, 475).

36 FMSHRC Page 2854

Sauerborn conceded there was in fact an error with McKinsey’s paycheck in September
2013 and he verbally reprimanded Davis for the error. (Tr. 476). Sauerborn also admitted that
pursuant to the employee handbook verbal reprimands should be documented, but were not in
certain circumstances. (Tr. 477-478, 494).
Sauerborn testified that he considered McKinsey’s refusal to follow instructions
insubordination and contended the raincoat he brought for McKinsey on January 10, 2014, was
not filthy and disgusting. (Tr. 510-511).
C. Roger Ouellette
Roger Ouellette (“Ouellette”) was a mine safety health inspector for MSHA who
previously worked as a maintenance manager/supervisor for an open pit sand mine, construction
demolition landfill and dump truck company. (Tr. 136-137). After receiving an allegation
summary, Ouellette contacted McKinsey who asked repeatedly to remain anonymous throughout
the investigation process for fear of reprisal from the operator, and Ouellette agreed. (Tr. 140,
169). The reason McKinsey feared reprisal was because of the instruction he was given to tag
any defective equipment as being out of service if an MSHA inspector showed up. (Tr. 150, 169)
McKinsey also informed Ouellette that he had Asperger’s syndrome. (Tr. 142, 169).
On November 26, 2013, Ouellette conducted an inspection of PGSC’s sand pit. (Tr. 144).
Ouellette discussed the allegation summary with Sauerborn and made notes regarding each of the
allegations contained therein. (Tr. 145-147; GX 12). When discussing allegation number 5 of the
complaint (gunshots fired on company property) and the issue of who called the allegation in,
Sauerborn stated it could have only been two employees, McKinsey or Lane. (Tr. 148-149, 156,
165). Ouellette conducted interviews with all employees on November 26. (Tr. 150). At the
conclusion of the inspection, Ouellette issued two citations to Sauerborn for a violation of the
berming standard and a documentation violation, all of which were unrelated to McKinsey’s
allegations. (Tr. 153-154, 160-161; GX 13). Ouellette conducted a close out conference with
Sauerborn and completed a close out form after the inspection. (Tr. 154-156; GX 14). Ouellette
also agreed that there was another complaint called in by McKinsey at lunch on November 26,
and he added it to the list of inspection items. (Tr. 176).
D. Michael LaRue
Michael LaRue (“LaRue”) was a mine safety and health inspector for the U.S.
Department of Labor, collateral duty special investigator, and collateral duty fatal accident
investigator. (Tr. 177). After receiving an initiation process package, LaRue made contact with
both parties and informed them of the investigation. (Tr. 180). LaRue testified that he believed a
discrimination claim was a possibility after speaking with and taking formal statements from
both parties. (Tr. 180-183; GX 16, GX 17). Specifically, LaRue stated that Sauerborn would not
directly answer the question of whether he knew who reported the violations, and Sauerborn said
he wanted to move on as a company. Id. LaRue also took a statement from Joshua Lane via
telephone because he did not want to meet in person for fear of reprisal if anyone found out he
was meeting with a MSHA investigator. (Tr. 188-189; GX 18).

36 FMSHRC Page 2855

During his investigation, LaRue found what he believed to be multiple discriminatory
acts including demotion, cutting of hours, and termination, all of which were directly related to
the protected activities in which McKinsey was engaged. (Tr. 192). Based on Ouellette’s report
and Sauerborn’s comments, LaRue believed that McKinsey was discriminated against. (Tr. 192194). Additionally, LaRue noted there were no incidents marked in McKinsey’s personnel record
prior to the safety complaint being filed with MSHA. (Tr. 193). LaRue testified that he felt
Sauerborn avoided the question of who filed the complaint and, therefore, asked him three
separate times if he knew which employee made the complaint. Sauerborn never directly
answered the question. (Tr. 212).
E. Daniel Daughtridge
Daniel Daughtridge (“Daughtridge”) was a psychotherapist at an outpatient mental health
clinic. (Tr. 258-259). He began to treat McKinsey for anxiety and job related stress in January of
2014. (Tr. 260, 266). The subject matter of the treatment sessions mainly included his
termination and the events surrounding it. Daughtridge and McKinsey particularly discussed the
incident with the rain coat and the subsequent incident where McKinsey thought he was going to
be hit by a car. (Tr. 261).
Daughtridge recommended McKinsey for Asperger’s syndrome testing and after
discussing the results, he believed the tests confirmed an Autism Spectrum Disorder (“ASD”).
(Tr. 262). ASD often affects the way a person sees the world and how they relate to other people
and have social difficulties. (Tr. 264).
Daughtridge conceded during his testimony that he did not have the expertise to diagnose
ASD, which is why he referred McKinsey for additional testing. (Tr. 266). An intake therapist
and colleague of his provisionally diagnosed McKinsey with a mood disorder. (Tr. 267).
Daughtridge also agreed that all of the symptoms he observed could have been presented prior to
McKinsey’s employment with PGSC. (Tr. 268).
F. Calvin Lynch
Calvin Lynch (“Lynch”) was a customer of PGSC who had purchased sand from the
company on three different occasions. (Tr. 302-303). Lynch purchased sand twice on the
morning of December 20, 2013. (Tr. 304; RX 8). On his second trip to purchase sand, Lynch
entered the office and described seeing McKinsey upset. Lynch testified that he was scared both
for himself and for the woman working in the office. (Tr. 306, 309). Lynch explained that
McKinsey was swearing and getting very upset, (he could not recall the name of the person
McKinsey was upset about) and that the woman working in the office attempted to calm him
down but he continued to be upset. (Tr. 307). Lynch stated that McKinsey kept saying, “they
don’t know me,” and that he had “some type of syndrome.” (Tr. 307-308). Lynch further
testified that McKinsey was in a rage - saying he was being lied about by the same man and he
was going to “…knock him in the head. I will kill him.” (Tr. 308, 310). McKinsey apologized to
Lynch several times but continued to complain about his treatment at the company including
being lied about and losing working time. (Tr. 310-311).

36 FMSHRC Page 2856

Sauerborn called Lynch in April of 2014, and asked if he recalled the events that occurred
on December 20, 2013. (Tr. 311-312). Lynch said that he did remember and agreed to meet with
Sauerborn and the Respondent’s counsel Matthew Korn regarding the events on that day. (Tr.
313-314). Lynch agreed to testify about the events the best he could recall. That was the end of
the interaction between Sauerborn and Lynch. (Tr. 313-315).
Lynch went on to testify that he was initially afraid during the confrontation because he
had seen instances of disgruntled employees harming people at the workplace on TV and that is
what came to his mind. (Tr. 320). When he went back to the office after loading the sand in his
truck, he recalled McKinsey still being upset and shaking. McKinsey proceeded to apologize to
Lynch again. (Tr. 321).
G. Dina Davis
Dina Davis (“Davis”) began employment at PGSC on February 18, 2013, first as a
delivery truck driver and then as an office employee. (Tr. 513). Davis took medical leave
effective September 25, 2013, and returned the latter part of January 2014. (Tr. 514). Prior to her
leave, she worked with McKinsey at PGSC, and she knew him previously because they went to
high school together. Id. Davis told Sauerborn that she knew a mechanic (McKinsey) but did not
know his work ethic, and was hesitant at hearing to definitively say she recommended him for
the position. (Tr. 515).
With regard to the altercation between McKinsey and Davis over his use of the office
phone in late August 2013, Davis testified that she wrote a letter describing the incident which
stated that McKinsey had a “temper tantrum” and acted inappropriately in front of customers.
(Tr. 516, 518, 538; RX 10). Davis testified that she had seen McKinsey act in a similar fashion
during high school when he would get confrontational with teachers. (Tr. 520). Sauerborn took
Davis’ statement and discussed the incident with McKinsey. (Tr. 521, 539-541).
A second incident occurred in early September 2013 regarding an issue with payroll. (Tr.
521). McKinsey felt he should have been paid more pursuant to his supervisor position raise.
McKinsey asked Davis for the phone number to ADP -- the payroll company. When Davis
explained that he was not authorized to speak to ADP, McKinsey became irate and began yelling
and swearing at her in front of other employees. (Tr. 522-523, 527, 539). McKinsey also shared
his time card and income information with another employee, which is against company policy.
(Tr. 523).
Davis testified about a separate occasion where McKinsey encouraged her to sue
Sauerborn for violating HIPPA because he claimed Sauerborn contacted Davis’ doctor and tried
to get information about her condition. (Tr. 531). Davis also heard McKinsey make various
threats against Sauerborn including both suing and killing him. (Tr. 532). Davis testified that she
would not feel comfortable if McKinsey were reinstated because she does not trust him and he
was a “loose cannon.” (Tr. 533).
Davis testified that McKinsey received preferential treatment from Sauerborn such as
driving the company truck, taking company product without paying, and receiving work boots
that Sauerborn paid for personally. (Tr. 534). McKinsey also got paid for holiday vacation time,

36 FMSHRC Page 2857

which was against company policy because McKinsey had not worked with the company for the
required year. (Tr. 535).
Davis does not believe Sauerborn would terminate an employee for making a safety
complaint. Additionally, McKinsey never told Davis he was being discriminated against for
making the complaint. (Tr. 535).
H. Alton Lorenzo Moses
Alton Lorenzo Moses (“Moses”) began working at PGSC in approximately December
1996. (Tr. 544). At the time of the hearing, he was the acting supervisor, a position he took when
Josh Lane left the company. (Tr. 556). When McKinsey began working at PGSC, he informed
Moses that he had Asperger’s syndrome. (Tr. 546). Moses’ interactions with McKinsey were
never straightforward. Moses testified that when he addressed McKinsey he could never get a
straight answer. Moses explained that he heard McKinsey cursing at work from time to time and
he overheard McKinsey call Sauerborn stupid. (Tr. 547-548). McKinsey never told Moses that
he was being discriminated against because he filed the safety complaint, but he did say someday
he would own the place. (Tr. 548). Moses testified that Sauerborn could be difficult to work
with, but he is difficult with every employee at the mine. (Tr. 548-549).
Moses acknowledged that there was a policy in place regarding working in the rain and
raincoats were available for employees to use. (Tr. 549-550). Moses further acknowledged that
the employee handbook contains company policies and was available to all employees. (Tr. 550).
Sauerborn never indicated to Moses that he believed McKinsey made the complaint to
MSHA. Additionally, Moses did not believe Sauerborn would fire someone for making a safety
complaint. (Tr. 552). Moses was never punished for reporting safety issues to Sauerborn, and
Sauerborn would fix the safety issues whenever they were called to his attention. (Tr. 553).
Moses testified that he heard from multiple employees that Sauerborn terminated
McKinsey for an incident that occurred in the rain when McKinsey jumped on Sauerborn’s car.
(Tr. 554-555).
III. Contentions of the Parties
The Secretary contends that the elements necessary to establish a prima facie case of
discrimination have been satisfied. First, the Secretary argues that McKinsey was engaged in
protected activity when he filed the safety complaint with MSHA and when he made routine
complaints to his supervisor, Sauerborn. Secretary’s Post-Hearing Brief at p. 7. Second, the
Secretary argues that adverse action was taken against McKinsey as a direct result of his
participation in such activity. Id. at 8. The circumstantial indicia of discriminatory motivation
including knowledge, hostility, coincidence in time, and disparate treatment have all been
established as evidenced by McKinsey’s reduced hours, the demotion from his supervisory
capacity, repeated harassment by Sauerborn, and ultimately his discharge from PGSC. Id.

36 FMSHRC Page 2858

The Respondent, however, asserts that a prima facie case has not been established, as the
Secretary failed to demonstrate a nexus between the protected activity and the adverse action.
Respondent’s Post-Hearing Brief at p. 17. Specifically, the Respondent contends that there was a
legitimate, nondiscriminatory basis for terminating McKinsey – failing to follow a direct order
from a supervisor and inadequately performing job duties – and that PGSC would have
terminated him on those grounds alone. Id. at 18. In fact, Respondent argues Sauerborn did not
know it was McKinsey who filed the hazard complaint with MSHA. Id.
However, assuming the ALJ finds a prima facie case has been made, Respondent alleges
it has successfully rebutted such. Id. at 18-19. The Respondent further contends that the
proffered reasons for terminating McKinsey are independent and alternative in nature, not
cumulative as suggested by the Secretary. Respondent’s Reply to Post-Hearing Brief at p. 8.
PGSC ultimately terminated McKinsey for his refusal to follow direct instructions from his
supervisor and then jumping on the hood of his supervisor’s car, reasons that are both
independently sufficient to warrant termination. Id.
The Secretary argues that the multiple reasons offered by the Respondent for terminating
McKinsey are cumulative in nature. Secretary’s Post-Hearing Brief at p. 14. Furthermore, when
one of the reasons fails for a lack of credibility, as it does in the instant matter, the entire basis
for termination is deemed not credible. Id. at 14-24. The Secretary takes the position that both
proffered reasons -- poor work performance and failure to don a raincoat -- fail as pretext. Id.
Specifically, the reasons either did not actually motivate the adverse action or were insufficient
to justify termination, and therefore, the affirmative defense must also fail. Id. at 14, 21-24.
The Secretary contends, arguendo that if the ALJ finds the Respondent successfully put
forth an affirmative defense, it must still fail because McKinsey was provoked into committing
the conduct for which he was fired and should, therefore, be granted leeway for his actions.
Secretary’s Post-Hearing Brief at p. 24.
The Respondent contends that there was no provocation on the part of Sauerborn because
he was simply trying to get McKinsey to wear a raincoat, an act consistent with PGSC policy.
Respondent’s Post-Hearing Brief at p. 26. If however, the ALJ finds provocation, the
Respondent would argue either, it was not wrongful under the Mine Act, or to the contrary,
McKinsey’s response was disproportionate to the wrongful conduct.7 Id. at 27-28.

7

This Court need not reach a decision as to whether McKinsey’s unprotected activity was
provoked by the employer’s wrongful conduct as the Respondent was unsuccessful in
establishing a valid affirmative defense.

36 FMSHRC Page 2859

IV. Findings of Fact and Conclusions of Law
Section 105(c) of the Mine Act prohibits any discrimination against a miner for
exercising a right established under the Act.8 Pursuant to Commission case law, a prima facie
case for a violation of section 105(c) is established if the complainant proves by a preponderance
of the evidence that (1) he was engaged in a protected activity and (2) that the adverse action was
motivated in any part by the protected activity. Sec’y of Labor or behalf of Pasula v.
Consolidation Coal. Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds, sub nom.
Consolidation Coal Co. v. Marshall, 63 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981).
The Commission will consider the following factors in determining whether the
complainant has established a causal connection between the protected activity and the
adverse action: (1) knowledge of the protected activity; (2) hostility or animus towards
the protected activity; (3) coincidence in time between the protected activity and the
adverse action; and (4) disparate treatment. Sec’y of Labor on behalf of Chacon v. Phelps
Dodge Corp., 3 FMSHRC 2508, 2516-17 (Nov. 1981) rev’d on other grounds, 709 F.2d
86 (D.C. Cir. 1983).
It is rare for a section 105(c) case to be proven solely on direct evidence. Rather, it is
more typical for such a case to be made by relying on indirect or circumstantial evidence.
Therefore, it is of no surprise that the Commission has held that “an operator’s knowledge of the
miner’s protected activity is probably the single most important aspect of a circumstantial case.”
Sec’y of Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept.
1999)(quoting Chacon, 3 FMSHRC at 2510).
Once a prima facie case is established, the mine operator is given an opportunity to rebut
by showing that either there was no protected activity or the adverse action was not motivated in
any way by the protected activity. Robinette, 3 FMSHRC at 818 n. 20. If the operator is unable to
successfully rebut, it may still establish an affirmative defense by proving that the adverse action
was motivated by unprotected activity, and it would have taken the action based solely on the
unprotected activity. Id. at 817; Pasula, 2 FMSHRC at 2799-2800.

8

Section 105(c)(1) of the Act provides in part:

No person shall discharge or in any manner discriminate against or cause
to be discharged or cause discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner, representative of miners or applicant
for employment in coal or other mine subject to this Act because such miner,
representative of miners or applicant for employment has filed or made a
complaint under or related to this Act, including a complaint notifying the
operator or the operator’s agent, or the representative of the miners at the coal or
other mine of an alleged danger or safety or health violation in a coal or other
mine . . .

36 FMSHRC Page 2860

A. Protected Activities
In the instant matter, the record clearly establishes that McKinsey engaged in protected
activity, thus satisfying the first element of a prima facie case under section 105(c). This Court
accepts as true McKinsey’s testimony at hearing that he not only voiced complaints with his
supervisor Sauerborn, but also that he filed a formal hazard complaint with MSHA on November
25, 2013. (Tr. 35-37, Tr. 77-78). As part of his supervisory position, McKinsey was required to
fill out and review safety equipment that was used in the company’s day-to-day activities. (Tr.
32-34). There were also occasions where McKinsey made specific safety complaints to
Sauerborn, including an issue with the highwalls and an incident where individuals were caught
hunting on company property. (Tr. 35-36). However, McKinsey testified that Sauerborn
routinely deflected his safety complaints. (Tr. 36). Consequently, McKinsey decided to file a
hazard complaint directly with MSHA on November 25, 2013. (Tr. 77). Both the internal safety
complaints made on equipment check sheets and directly to Sauerborn, as well as the formal
hazard complaint filed with MSHA qualify as protected activity pursuant to section 105(c). 30
U.S.C. § 815(c); see e.g. Sec’y of Labor on Behalf of Munson v. Eastern Assoc. Coal Corp., 23
FMSHRC 654, 662 (June 2001); Descutner v. Newmont USA, 34 FMSHRC 2838 (Oct. 2012).
B. Adverse Action Motivated by Protected Activity
The record further establishes that the second element of the prima facie case has also
been satisfied, as McKinsey was terminated by Sauerborn -- the clearest form of adverse action
under the Act. See Driessen v. Nevada Goldfields Inc., 20 FMSHRC 324, 329 (Apr. 1998). The
Secretary has provided sufficient circumstantial evidence to support a finding that McKinsey was
terminated at least in part for his protected activity and/or PGSC’s belief that he had engaged in
protected activity. McKinsey also suffered less severe forms of adverse action including a
demotion, a reduction in hours, and an increase in e-mails that highlighted his allegedly poor
work performance. (Tr. 49-53, 55, 388, 390, 393, 400, 423).
a. Knowledge
At hearing, Respondent went to great lengths to show that Sauerborn had no direct proof
or actual knowledge that McKinsey was the individual who had made anonymous safety
complaints to MSHA. (Tr. 374). However, Commission case law does not require that an
operator have positive certainty that a miner had engaged in protected activity. It is enough for
the Secretary to establish that an operator suspected a discriminatee had made safety complaints.
See Elias Moses v. Whitley Dev. Corp., 4 FMSHRC 1475, 1480 (Aug. 1992)(finding
“discrimination based upon a suspicion or belief that a miner has engaged in a protected activity,
even though, in fact, he has not, is proscribed by section 105(c)(1)”).
In this case, there is circumstantial evidence that Sauerborn suspected McKinsey of
making safety complaints. At the time the safety complaints were made, there were only a
handful of employees working at the Great Pit mine. (Tr. 330). McKinsey was a recent hire. (Tr.
25, 336). McKinsey’s awkward attempts at denying that he was the whistleblower would have
been transparently inculpatory to even the most obtuse operator, much less an individual of

36 FMSHRC Page 2861

Sauerborn’s intelligence and perception. It would not have taken a Sherlockian process of
elimination for Sauerborn to have settled upon McKinsey as a prime suspect. The testimony of
the Secretary’s witnesses, Inspector Roger Ouellette and Special Investigator Michael LaRue,
further supports a finding that Sauerborn, despite his assertion to the contrary, believed
McKinsey to be the anonymous whistleblower. Specifically, Ouellette testified that when he and
Sauerborn were discussing who could have potentially called in the MSHA complaint, Sauerborn
stated that it could only have been two employees – either McKinsey or Josh Lane. (Tr. 148-49,
156, 165). Similarly, LaRue testified that Sauerborn was reluctant to answer the question of
whether or not he knew who reported the violations to the extent that LaRue had to ask him three
different times. (Tr. 180-83, Tr. 188-89; GX 16, GX 17, GX 18).
Having heard and considered the testimony of Respondent’s witnesses, Dina Davis and
Alton Moses, it is highly unlikely that Sauerborn would have suspected either as being the
anonymous source. The same would go, of course, for Sauerborn’s daughter. Furthermore,
Sauerborn’s letter to McKinsey, dated December 7, 2013, when he stated “an unknown person
called MSHA with five allegations of wrong doing . . . Most of the allegations were topics you
and I discussed and had disagreements . . . I would like you to tell me what you have learned
from this incident” appears as a non-subtle accusation by the operator that McKinsey was the
anonymous source. (Tr. 48-49).
b. Hostility
Additionally, this Court finds McKinsey credibly testified that Sauerborn’s attitude
changed towards him after the MSHA complaint was filed. (Tr. 38-41, 96). Following his
participation in a protected activity, Sauerborn began treating McKinsey differently by singling
him out and belittling him. (Tr. 38-41). Sauerborn began increasingly sending e-mails to
McKinsey, listing issues with him, some of which occurred well before the complaint was filed.
(Tr. 41). In one of the warnings mention supra, issued in a letter dated December 7, 2013,
Sauerborn specifically referenced the MSHA complaint and asked McKinsey what he had
learned from this incident. A second e-mail was sent on December 11, 2013 in conjunction with
a handwritten note that was left on McKinsey’s time card, which stated various work
performance issues. (Tr. 49-51). On that same day, Sauerborn also demoted McKinsey from his
supervisory position. (Tr. 52-53, 55). The third and final e-mail was sent on December 30, 2013.
This particular e-mail addressed a prior incident between McKinsey and Sauerborn that occurred
on December 20 when Sauerborn unsuccessfully attempted to send McKinsey home early. (Tr.
54). This Court finds that these events, when looked at as a whole, reflect an obvious increase in
hostility towards McKinsey after he filed the complaint with MSHA on November 25, 2013.
c. Coincidence in Time
Commission case law has established that a short proximity of time between the miner’s
protected activity and the adverse action can evidence a discriminatory motive. See Donovan v.
Stafford Construction Co., 732 F.2d 954, 960 (D.C. Cir. 1984). However, the Commission has
not set any hard and fast rules for determining when the time between a protected activity and an
adverse action is indicative of discriminatory motive. Sec’y of Labor on behalf of Baier v.

36 FMSHRC Page 2862

Durango Gravel, 21 FMSHRC 953, 958 (Sept. 1999); see also Chacon, 3 FMSHRC at 2511
(finding complaints filed anywhere between four days and one and a half months prior to the
adverse action sufficient to establish a coincidence in time); Pamela Bridge Pero v. Cyprus
Plateau Mining Corp., 22 FMSHRC 1361 (2000)(finding that a period of four months between a
safety complaint and termination was sufficient to establish proximity).
The Secretary and Respondent disagree about whether McKinsey was disciplined prior to
the hazard investigation. The Secretary contends that McKinsey was never disciplined prior to
the safety complaint being filed with MSHA. See Secretary’s Post-Hearing Brief at pp. 15-17.
Respondent asserts there were at least three prior occasions where Sauerborn reprimanded
McKinsey either verbally or in writing before the complaint was ever filed. See Respondent’s
Post-Hearing Brief at pp. 3-5. The record, however, clearly reflects a temporal proximity
between the time the complaint was filed and the increased discipline of McKinsey which
ultimately resulted in his termination. McKinsey filed the complaint with MSHA on November
25, 2013. (Tr. 36-37). Shortly thereafter on December 7, 2013, McKinsey began experiencing a
reduction in hours. (Tr. 51). McKinsey was then demoted on December 11, 2013, and terminated
on January 13, 2014, only 46 days after the complaint was filed. (Tr. 51-52, 61). This time frame
easily satisfies the Commission’s requirements for a finding of coincidence in time.
Thus, this Court finds sufficient evidence has been presented that McKinsey engaged in
protected activity, that he suffered adverse action, and that there was a nexus between the two,
such that a prima facie case of discrimination under section 105(c) has been established.9
Furthermore, the Respondent has failed to successfully rebut the prima facie case. Based on the
circumstantial evidence presented at hearing, this Court is not convinced the Respondent was not
motivated at least in part by the protected activity when it took adverse action against McKinsey.
C. Respondent’s Affirmative Defense
When a mine operator is unable to successfully rebut the complainant’s prima facie case,
it may establish an affirmative defense by asserting that the adverse action was motivated by
non-protected activity and that it would have taken such action against the complainant for that
activity alone. Robinette, 3 FMSHRC 803, 817-18. Simply showing that the miner deserved to be
disciplined is not sufficient to satisfy the Respondent’s burden. Pasula, 2 FMSHRC at 2800.
PGSC contends that it would have terminated McKinsey for unprotected activity which
included his poor work performance, inappropriate behavior, and his act of insubordination. See
Respondent’s Post-Hearing Brief at pp. 20, 23. Additionally, Respondent argues that
9

The Secretary contends that there is also evidence of disparate treatment against
McKinsey evidenced during the raincoat incident. The Secretary takes the position that
Sauerborn had a markedly different response to McKinsey's failure to don a raincoat versus that
towards other similarly situated employees. (See Secretary’s Post-Hearing Brief at pp. 11-12).
However, this Court agrees with Respondent that the Secretary failed to present any evidence of
other employees who did not obey a direct order from their supervisor and were not terminated.
(See Respondent’s Post-Hearing Brief at p. 23).

36 FMSHRC Page 2863

McKinsey’s refusal to don the raincoat when given a direct order to do so by his supervisor was
an act of insubordination that alone warranted his termination. Id. at 23; see also Respondent’s
Reply to Post-Hearing Brief at p. 8. When Sauerborn told McKinsey to put on a raincoat, he
simply said “no” without offering any explanation for his refusal. (Tr. 93-94, 425). Furthermore,
McKinsey failed to produce any evidence of other miners who similarly failed to follow a direct
order from a supervisor. Respondent contends these facts support a valid business justification
for terminating McKinsey.
At the hearing, both parties gave contradictory versions of various events – the
completely differing accounts of the motor vehicle run down episode, which occurred following
the raincoat incident, being the starkest example of such. However, after a careful review of the
total circumstances, I find that Sauerborn did not attempt to run down McKinsey and that
McKinsey did not attempt to jump on Sauerborn’s motor vehicle. Rather, I find that the most
reasonable and likely explanation of this incident was that Sauerborn accidentally bumped
McKinsey causing the miner to fall onto the hood. Thus, the episode was ultimately not a factor
in reaching the decision within.10
When evaluating an affirmative defense, the ALJ must first analyze the merits of the
employer’s business justification to make a determination as to whether such justification is
merely pretextual in nature. Haro v. Magma Copper Co., 4 FMSHRC 1935, 1937 (Nov. 1982). If
the employer’s justification is not “plainly incredible or implausible, a finding of pretext is
inappropriate.” Id. at 1938. Pursuant to Pasula, the analysis must focus “on whether a credible
justification figured into motivation and, if it did whether it would have led to the adverse action
apart from the miner’s protected activities . . . [T]he narrow statutory question is whether the
reason was enough to have legitimately moved that operator to have disciplined the miner.”
Chacon, 3 FMSHRC at 2516. Moreover, when analyzing an operator’s business justification
affirmative defense, the judge may not “substitute for the operator’s business judgment [his or
her] views on ‘good’ business practice or on whether a particular adverse action was ‘just’ or
‘wise.’” Id. at 2516-17. Rather, the judge must determine whether a credible justification has
been offered by the operator and if that justification “would have led to the adverse action apart
from the miner’s protected activities.” Id.
10

In attempting to resolve these conflicting narratives, I have proceeded on the bases that
neither party was deliberately committing perjury and that most litigants tend to perceive
themselves as the innocent party and their opponent as the culprit.
As a young law student, I was once advised by an old professor that to successfully
practice law I had to study human nature and the best way to do so was to study Shakespeare.
During the hearing – which had more than the usual drama with both sides breaking down – I
was struck by how much McKinsey saw himself as a kind of Hamlet terribly wronged by his evil
step-father King Claudius (Sauerborn) and how much Sauerborn saw himself as a kind of King
Lear grievously injured by the ingratitude of his child (McKinsey). For the reasons described
within, I did not, however, find either party to be quite as tragic a figure as they portrayed
themselves to be. Given the storm scene when the motor vehicle episode took place, I could go
on with the analogy of Lear on the Heath.

36 FMSHRC Page 2864

It is black letter Commission case law that a judge cannot substitute his own judgment for
that of the operator with regard to what constitutes an appropriate business practice. Id. at 2516.
The Commission has repeatedly held that it “is enough for the operator to show that it had and
was motivated by legitimate business reasons for taking the action that it did.” Sec’y of Labor on
behalf of Pendley v. Highland Mining Co., 34 FMSHRC 1919, 1925 (Aug. 2012) (citing Chacon,
3 FMSHRC at 2516-17).
The Secretary argues that Respondent’s affirmative defense should fail because the
reasons proffered are pretext. A finding of pretext may be established if the judge concludes that
the reasons offered have no basis in fact, the reasons did not actually motivate the adverse action,
or the reasons were insufficient to justify the adverse action. Turner v. Nat’l Cement Co. of
California, 33 FMSHRC 1059, 1073 (May 2011). The Secretary takes the position that
allegations of McKinsey’s poor work performance merit close review for possible pretext as
Sauerborn did not begin to criticize his work until after the complaint was filed with MSHA. See
Secretary’s Post-Hearing Brief at p. 15.
Additionally, the Secretary contends the Respondent’s argument -- that by directly
disobeying Sauerborn’s order to don a raincoat, McKinsey was insubordinate and that alone was
grounds for termination -- holds no water. Secretary’s Post-Hearing Brief at p. 21. The Secretary
asserts that the applicable rule at Great Pit is to wear a raincoat when it is raining, not to wear a
raincoat when given a direct order. Id. As such, similarly situated employees who were not
wearing a raincoat should have also been disciplined. Id. Yet, McKinsey was the only employee
told to clock out. Id. The Secretary argues this disparate treatment of McKinsey is evidence of
pretext.
For the reasons discussed below, this Court finds the Respondent’s affirmative defense
has failed, as it did not present a valid business justification for terminating the Complainant
based on an accumulation of poor work performance and his act of insubordination.
The Secretary contends the Respondent’s reasons for terminating McKinsey’s
employment are cumulative in nature. If the ALJ decides the reasons for termination are in fact
cumulative that would mean each individual reason must be a credible basis for discipline.
Pendley v. FMSHRC, 601 F.3d 417 (6th Cir. 2010). In making such a determination, the judge
can look to whether the operator based its decision on all the reasons listed in the notice of
termination as well as the operator’s testimony. If, however, the judge finds that the reasons
given were viewed by the operator as an independent basis for termination, then the “falsity or
incorrectness of one may not impeach the credibility of the remaining articulated reasons.” Id. In
contrast, when cumulative reasons are given and the judge finds one to be incredible, it cannot
find the other reasons to be sufficient by themselves to support the adverse action.
The Respondent contends the reasons for terminating McKinsey are independent and
alternative, as his “failure to follow direct instructions from his supervisor and then jumping on
the hood of Sauerborn’s car would be sufficient to credibly warrant termination.” See
Respondent’s Reply to Post-Hearing Brief at p. 8.

36 FMSHRC Page 2865

Relying greatly on the testimony of Sauerborn, this Court finds that the Respondent’s
asserted reasons for terminating McKinsey were cumulative in nature. At hearing, Sauerborn
testified that he fired McKinsey for a “progression of action and inaction,” basing his decision on
McKinsey’s insubordination, the incident where McKinsey jumped on the hood of his car, and
his history of performance issues and behavioral problems.11 (Tr. 423-427). Sauerborn further
testified that after his history of performance issues with McKinsey, he essentially found the
January 10 incident to be the figurative “straw that broke the camel’s back.” (Tr. 501). This
implies there had been a series of events leading up to the climactic event referenced as the final
“straw.” Furthermore, this Court finds the additional reasons listed in the termination letter given
to McKinsey did not play a part in the ultimate decision to terminate him. Rather, they were
merely issues Sauerborn had previously intended to discuss with McKinsey prior to reaching this
decision. (Tr. 429).
Having made a finding that the reasons for terminating McKinsey were cumulative rather
than independent and alternative, this Court must now determine whether each independent
reason was in a fact a credible basis for discipline.
An affirmative defense will be found not credible if the complainant is able to establish
that the operator’s proffered reasons have no basis in fact, the reasons did not actually motivate
the adverse action, or the reasons were insufficient to motivate termination. Nat’l Cement Co. of
California, 33 FMSHRC at 1073. However, the Commission has provided ways that an operator
can demonstrate that it would have terminated the alleged discriminatee based on unprotected
activity alone, such as by showing “past discipline consistent with that meted out to the alleged
discriminatee, the miner’s unsatisfactory past work record, prior warnings to the miner, or
personnel rules or practices forbidding the conduct in question.” Bradley v. Belva Coal Co., 4
FMSHRC 982, 993 (June 1982).
At hearing, Sauerborn presented evidence that he terminated McKinsey for issues related
to his work performance and insubordination. The record establishes that McKinsey was hired in
July of 2013. (Tr. 25). Sauerborn first began noticing issues with his job performance the
following month in August when McKinsey was involved in a verbal altercation with a coworker, Dina Davis. (Tr. 339). Sauerborn testified that he verbally warned and wrote McKinsey
up for his behavior. However, despite this incident, Sauerborn promoted McKinsey to a
supervisory position sometime in September and testified that he generally found McKinsey’s
work performance to be satisfactory. (Tr. 473, 479). Shortly after the promotion on September
10, McKinsey was involved in a second altercation with Davis for which Sauerborn testified
Mckinsey received another verbal warning and write up. (Tr. 475).
During the time McKinsey was employed at PGSC, the company had a progressive
disciplinary policy in place in order to ensure that all employees were treated fairly. The policy
included a rule that all disciplinary “warnings, second chances, and any action” taken against an
employee needed to be documented. (Tr. 459, RX 9). Yet, Sauerborn testified that following
11

As discussed supra, no credible evidence was submitted regarding the car incident, so
this Court did not consider it in reaching this decision.

36 FMSHRC Page 2866

both incidents between McKinsey and Davis, he did not document or place any type of record in
McKinsey’s personnel file regarding the alleged warnings. (Tr. 466, 478). Sauerborn did,
however, address the first altercation with Davis that very same day in a letter. (Tr. 464). In that
letter, Davis was given an opportunity to respond in writing with any comments or thoughts she
may have had regarding the discipline and what occurred between her and McKinsey. No such
opportunity was given to McKinsey.12 (Tr. 463-64, 473, 475). According to Sauerborn’s
testimony, he simply showed Davis’ response to McKinsey and considered that to be an
appropriate verbal warning and written warning. (Tr. 471).
The second incident was handled in a similar fashion. Sauerborn testified that Davis was
given a verbal warning for this altercation and she then drafted a letter detailing her version of
the events. (Tr. 477). Sauerborn gave a copy of that letter to McKinsey and testified that it too
represented both a verbal and written warning. Id. Sauerborn further testified that during his
conversation, McKinsey was given an opportunity to write his own statement.13 (Tr. 348).
Sauerborn did not, however, present any evidence corroborating his testimony that he intended
the alleged conversations with McKinsey referencing Davis’ letters to constitute an actual verbal
or written warning. When considering this lack of evidence combined with the fact that
McKinsey was not afforded the same opportunity to respond as was Davis, and that neither
incident was handled in compliance with PGSC’s disciplinary policy, this Court does not find
that either one constituted a formal warning that would serve to put McKinsey on notice that
future poor work performance could result in more serious consequences.
Throughout his testimony, Sauerborn attempted to establish that a written warning was
given to McKinsey by e-mail on September 17 and by text message on November 23. (Tr. 482,
485). However, this Court finds that the evidence presented was insufficient to establish that
either incident constituted a valid written warning to McKinsey. Rather, the record reflects that
following the second incident with Davis, McKinsey did not receive any formal warnings or
discipline from Sauerborn regarding his work performance until after he made a safety complaint
on November 25 and MSHA conducted its investigation.
Specifically, as discussed supra, Sauerborn issued the first formal written warning to
McKinsey by e-mail on December 7, at which time he reduced McKinsey’s hours for the
upcoming Monday. (Tr. 388). This took place a mere twelve days after McKinsey engaged in
12

Sauerborn testified that he did not give McKinsey a written invitation to explain his
perspective on the incident with Davis because he did so verbally. (Tr. 466, 471). However,
Sauerborn failed to document the warning in either his employment records or McKinsey’s
personnel file. (Tr. 466, 473, 478, 479). Without any evidence corroborating Sauerborn’s
testimony, this Court cannot find Sauerborn’s testimony that he verbally gave McKinsey a
chance to respond and give his perspective on the incident credible.
13

For the same reasons discussed supra, this Court does not find Sauerborn’s testimony
regarding the verbal warning and McKinsey’s opportunity to respond to be credible. Per his
testimony, nothing was documented that would indicate whether such events really transpired.
(Tr. 477).

36 FMSHRC Page 2867

protected activity by filing a safety complaint with MSHA. (Tr. 77, 388). The letter addressed
numerous issues that had allegedly occurred during roughly a month of McKinsey’s work
performance at PGSC. (Tr. 357). As the record reflects, the majority of the incidents -- including
acts of insubordination -- took place prior to McKinsey filing the safety complaint. (Tr. 364, 366367, 371, 380). Furthermore, Sauerborn did not issue a warning, suspend, or terminate McKinsey
for any of the alleged issues at the time they occurred. Consequently, McKinsey was again not
put on notice that adverse employment action could potentially be taken against him for any
future acts of poor work performance or insubordination. Therefore, Sauerborn’s argument that
the January 10 incident of insubordination alone was sufficient to warrant termination fails, as
termination would not be consistent with his treatment (or lack thereof) of McKinsey following
his prior bad performance.
This Court finds that the Respondent failed to establish that it would have terminated
McKinsey for the unprotected activity of January 10 alone. Rather, the evidence presented
establishes that Sauerborn’s animosity and hostility towards McKinsey for filing the safety
complaint played a substantial role in his decision to take discriminatory adverse action against
McKinsey.
Within limitations, a business owner should have the right to control the work
environment and his or her employees, and this right should not be eviscerated simply because a
safety complaint has been filed. But this right cannot allow the facts of the present case and the
protections afforded a miner under the Act to be overlooked. Congress intended not only to
encourage miners to participate in the Act’s enforcement but also to protect them from “any
possible discrimination which they might suffer as a result of their participation.” S. Rep. No.
95-181, 95th Congr., 1st Sess. 36 (1977) reprinted in Senate Subcommittee on Labor, Committee
on Human Res., 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977 at 623. Perhaps Sauerborn honestly believed that he had been magnanimous
in the past with McKinsey, and that by filing the safety complaint McKinsey showed just how
unappreciative he was of Sauerborn’s efforts. However, pursuant to section 105(c) of the Act,
McKinsey had every right to file the complaint. Unfortunately, it is likely because of his lenient
attitude towards McKinsey that Sauerborn failed to give any warnings or discipline McKinsey
prior to the safety complaint being made. Given the almost complete lack of prior warnings or
discipline in McKinsey’s work history for poor performance and insubordination, this Court
cannot find the Respondent has successfully established that the cumulative effect of such could
have rendered his unprotected activity on January 10 the fatal “straw.” Sec’y of Labor on Behalf
of Clay Baier v. Durango Gravel, 21 FMSHRC 953, 961 (Sept. 1991).
As discussed supra, when one of the proffered reasons for terminating an employee fails
and such reasons are cumulative in nature, the ALJ cannot find the other reasons to be a
sufficient basis alone. Respondent argued that it terminated the Complainant for both his poor
work performance and his act of insubordination. However, this argument fails as pretext as the
evidence supports a finding that the operator was not motivated by a legitimate history of poor
work performance when it reached its decision to terminate the Complainant. Therefore, based
on the foregoing reasons, this Court finds that the Respondent’s proffered reasons for terminating

36 FMSHRC Page 2868

McKinsey are insufficient, and such action represents unlawful discrimination under section
105(c) of the Act.
D. After-Acquired Evidence
Having found that the Respondent failed to establish an affirmative defense, this Court
must now determine whether the remedy afforded McKinsey will be limited due to afteracquired evidence of wrongdoing. The Supreme Court has held that an employee’s wrongful
conduct would not be an absolute bar to the employer’s liability, but could potentially limit the
employee’s available remedies. McKennon v. Nashville Banner Publishing Co., 115 S. Ct. 879,
885-86 (1995). Specifically, the Court concluded that reinstating an employee or granting frontpay would not be practical when an employer acquires evidence of wrong-doing that is so severe,
it would have warranted termination if the employer had known. Id. at 886; see e.g. Asarco, Inc.,
Contestant, 18 FMSHRC 317 (March 1996) (finding that after acquired evidence of an employee
inadvertently taking a pre-shift examination card off company grounds would not have warranted
termination).
There are also multiple National Labor Relations Board decisions that have applied the
after-acquired evidence principal established in McKennon. Such decisions not only deny
reinstatement but also limit back pay when an employer learns that the employee in question
engaged in wrongful conduct for which it would have been terminated. See La Film Sch., LLC &
Its Branch, La Recording Sch., LLC & California Fed’n of Teachers & Brandii Grace, 358,
NLRB No. 21 (Mar. 2012); see also John Cuneo, Inc. 298 NLRB 856, 861 (June 1990).
Moreover, in another NLRB case, C-Town, 281 NLRB 458 (Sept. 1986), the Board reiterated
that the conventional remedies afforded an employee in unlawful discharge cases – reinstatement
and backpay – are denied when the employee has engaged in “serious misconduct which renders
them unfit for future employment with their employer.” However, the Board also noted that not
every impropriety would cause the employee to be deprived the protections of the Act. Id.
Rather, such a denial would only occur in the “flagrant cases ‘in which the misconduct is violent
or of such character as to render the employees unfit for further service.’” Id. (citing J.W.
Microelectronics Corp., 259 NLRB 327 (1981)).
In the instant matter, the mine operator learned from a PGSC customer, Calvin Lynch,
during the course of the proceedings that McKinsey had in fact threatened Sauerborn’s life and
had terrified the customer in the process. Lynch volunteered his time to testify at hearing as to
the events that occurred on December 20, 2013. Prior to the incident, Lynch testified that he had
never even spoken to Sauerborn and had only been a customer of PGSC on three occasions. (Tr.
302-303). He was completely disinterested in the outcome of the proceedings and as such, this
Court finds Lynch to be a very credible witness and that his testimony was extremely reliable.
Lynch testified that he was at the PGSC office that day for the second time purchasing
sand. (Tr. 304). When he arrived, McKinsey was in the office and seemed very upset as he was
yelling and using profanity. (Tr. 306, 309). A female employee who was also present in the
office tried to help calm him down, but was unsuccessful. (Tr. 307). Lynch described McKinsey
as being in a rage -- he overheard McKinsey say repeatedly “they don’t know me,” “I’m going to

36 FMSHRC Page 2869

knock him in the head…I will kill him.” (Tr. 307-308, 310). Lynch testified that he was very
scared and could tell the female employee was also terrified based on the expression on her face.
(Tr. 309).
Sauerborn did not learn of this incident and the threats made by McKinsey until April 25,
2014. (Tr. 311-312, 446). At that time, Sauerborn called Lynch and asked him to explain what he
had seen and heard that day. (Tr. 311-312). After Lynch informed Sauerborn of the details,
Sauerborn began to feel very threatened, to such an extent that he moved from his home to a new
residence. (Tr. 446).
This Court finds that, despite Respondent’s failure to mount a viable affirmative defense
based upon the Complainant’s non-protected activities discussed supra, there is an independent
non-discriminatory basis for Complainant’s dismissal grounded in the after-acquired evidence of
threats made by Complainant on December 20 against Sauerborn and the traumatizing effect of
such on Respondent’s customer, Calvin Lynch. These threats made against Sauerborn’s life, and
the traumatizing of a customer, rise to a level that would be considered not only flagrant but also
of such a nature as to render McKinsey unfit for future employment at PGSC. As a result,
McKinsey’s right to backpay is cut-off as of the date Sauerborn learned of the threats and would
have been justified in terminating McKinsey on April 25, 2014.
V. Penalty
This Court finds that Fred McKinsey is entitled to an award of back pay in the amount of
$12,647.2514 plus interest15 from the period of January 13, 2014 until April 25, 2014.16 This
Court further finds that McKinsey adequately attempted to mitigate his damages by seeking new
employment following his termination. (Tr. 63-65, 73, 99-100). The Secretary’s request for
compensatory damages for additional expenses incurred by McKinsey as a result of his discharge
has been considered and such request is denied.
14

The backpay award calculation was based on McKinsey’s regular rate of pay at $17.75
per hour for his 40 hours of work per week, plus five hours of overtime pay at $26.63 per week.
This Court considered the average hours worked by McKinsey from the start of his employment
until the date adverse employment action was taken against him in response to his protected
activity, which occurred on December 7, 2013.
15

The interest should be calculated using the Arkansas-Carbona/Clinchfield Coal Co.
method, which provides that the amount of interest equals the quarter’s net back pay multiplied
by the number of accrued days of interest multiplied by the short-term federal underpayment
rate. Secretary on Behalf of Bailey v. Arkansas Carbona Co., 5 FMSHRC 2042, 2052 (Dec.
1983), as modified by Clinchfield Coal Co., 10 FMSHRC 1493, 1505-06 (Nov. 1988).
16

The backpay period runs from McKinsey’s date of termination until April 25, 2014, the
date the after-acquired evidence surfaced, which justified McKinsey’s termination from PGSC.
In light of the after-acquired evidence, the Secretary’s request for front pay is denied as is the
request for two hours of overtime pay from May 6, 2014, until the date of judgment.

36 FMSHRC Page 2870

The Secretary proposed a civil penalty amount of $20,000 against PGSC for its violation
of section 105(c) arguing the conduct involved both high negligence and high gravity. When
assessing a civil penalty, the ALJ is independently responsible for determining the amount of the
penalty in accordance with the six criteria set forth in section 110(i) of the Act; 30 U.S.C. §
820(i). See Performance Coal Co., 2013 WL 4140438 (Aug. 2013) (citing Cantera Green, 22
FMSHRC 616, 620-21 (May 2000)). The six criteria include: the appropriateness of the penalty
to the size of the business of the operator charged, the operator’s history of previous violations,
whether the operator was negligent, the effect on the operator’s ability to continue in business,
the gravity of the violations, and the demonstrated good faith of the person charged in attempting
to achieve rapid compliance after notification of a violation. Id.
The Respondent has never had a previous violation under section 105(c). At the time the
present violation occurred, Respondent’s operation was relatively small with assets totaling
approximately $500,000 and it was comprised of only nine employees. (Tr. 330-31).
When applying the negligence criterion, Commission case law has provided that the ALJ
must consider whether “the operator intended to commit the violation of section 105(c) rather
than whether it intended to chill future protected activities.” Sec’y of Labor on Behalf of Poddy v.
Tanglewood Energy, Inc., 18 FMSHRC 1315, 1319 (Aug. 1996). However, a finding of
intentional conduct does not necessarily lead to a finding of high negligence. Id. To find high
negligence, the ALJ must make a determination that there was “an aggravated lack of care that is
more than ordinary negligence.” Id. at 1320.
This Court has already determined that the Respondent failed to successfully mount an
affirmative defense as it was unable to prove it would have terminated McKinsey based on
unprotected activity alone. This determination necessitates a finding that Respondent’s actions in
violation of 110(c) were intentional. The Secretary contends that this in turn should lead to a
determination of high negligence. However, this Court finds that there were mitigating
circumstances present at the time Complainant was terminated and these circumstances preclude
a finding of an aggravated lack of care. Complainant was facially insubordinate when he refused
to put on the raincoat when told to do so by his supervisor. Under different circumstances, this
behavior could have contributed to a legitimate termination. Furthermore, although Sauerborn’s
actions unlawfully stemmed from filing of the complaint, this Court finds that Sauerborn
honestly believed that McKinsey’s work performance was also worthy of the discipline, and that
his primary motive was not to chill his speech or punish him for filing the complaint. Rather,
Sauerborn had finally decided to stop cutting McKinsey so many breaks and giving him the
benefit of the doubt. In light of these mitigating circumstances, this Court concludes that the
Respondent’s actions involved a low level of negligence.
When analyzing the gravity criterion, the ALJ must look to both the seriousness of the
violation and the importance of the standard violated. In implementing section 105(c), Congress
intended to “protect miners against the chilling effect of employment loss they might suffer as a
result of illegal discharge.” Poddy, 18 FMSHRC at 1321. A chilling effect is not, however,
presumed for every violation. Id. To determine whether a chilling effect has occurred, the
Commission must look at both a subjective (testimony as to whether there was a chilling effect)

36 FMSHRC Page 2871

and an objective (whether the adverse action would reasonably tend to discourage miners from
engaging in protected activity) standard. Id.
This Court does not find that objective evidence has been presented tending to show the
discharge would discourage miners from engaging in protected activity. As discussed supra, the
Respondent’s actions were partly motivated by his belief that the Complainant deserved to be
disciplined for poor work performance and insubordination. Furthermore, the working
relationship between the two had become increasingly strained with each passing day. It,
therefore, seems unlikely that Respondent would have retaliated against Complainant but for the
particular circumstances of the case. Furthermore, two witnesses, Davis and Moses explicitly
testified that they did not believe Sauerborn would fire them for making safety complaints,
which indicates they did not feel a chilling effect. (Tr. 535, 552-553). As such, this Court does
not find subjective evidence of a chilling effect to be present in the instant matter and that the
violation involved low gravity.
The Respondent did not argue at hearing or in its brief that if the operator was assessed a
civil penalty in the amount of $20,000 it would not be able to continue in business.
In a discrimination case, the mine operator is not obligated to reinstate an employee
simply because the Secretary brings a 105(c) action. However, if a temporary reinstatement order
is issued, the operator must comply with such order as a good faith effort in attempting to
achieve rapid compliance after receiving notice of the violation. In the instant matter, this Court
issued an amended order on June 19, 2014, granting temporary economic reinstatement to the
Complainant during the pendency of these proceedings. To date, this Court has not been made
aware of the operator’s failure to comply with the order. Therefore, this Court concludes that the
Respondent has satisfied the 110(i) criterion requiring a good faith effort for rapid compliance.
After applying the 110(i) criteria and reaching the aforementioned conclusions regarding
the Secretary’s request for a civil penalty assessment, this Court finds that a penalty in the
amount of $20,000 is too high and should be reduced to $5,000. The reduced penalty amount
appropriately reflects the negligence and gravity of the violation as well as the relatively small
size of the operator and its net worth at the time of the violation.

36 FMSHRC Page 2872

ORDER
It is hereby ORDERED that:
1. The Respondent PAY Fred McKinsey $12,647.25 in back pay within thirty (30) days of
the date of this decision with interest using the Arkansas-Carbona/Clinchfield Coal Co.
method.
2. The Respondent EXPUNGE Fred McKinsey’s employment record of any negative
reference to the discrimination proceedings and provide a neutral reference from PGSC.
3.

The Respondent PAY a civil penalty in the amount of $5,000, for its violation of Section
105(c) of the Act, within thirty (30) days of the date of this decision.17

4. The 5/6/2014 Decision and Order temporarily reinstating McKinsey, as amended by the
6/19/2014 Order of economic reinstatement, is hereby DISSOLVED.

/s/ John Kent Lewis
John Kent Lewis
Administrative Law Judge

Distribution:
Uche N. Egemonye, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street,
SW, Room 7T10, Atlanta, GA 30303
Fred McKinsey, 6888 US Hwy 258 N, Tarboro, NC 27886
Matthew R. Korn, Esq., 1320 Main Street, Suite 750, Columbia, SC 29201

17

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 2873

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

November 18, 2014
SECRETARY OF LABOR, MSHA,
on behalf of THOMAS A. SIMPKINS,
Complainant,

TEMPORARY REINSTATEMENT
PROCEEDINGS
Docket No. WEVA 2015-99-D
MORG-CD-2014-23

v.
TK MINING SERVICES, LLC, and
THE MARSHALL COUNTY COAL
COMPANY, formerly known as
MCELROY COAL COMPANY,
Respondents.

Mine ID: 46-01437
Contractor ID: K393
Mine: McElroy Mine

SECRETARY OF LABOR, MSHA,
on behalf of BUCKY THOMPSON,
Complainant,

Docket No. WEVA 2015-100-D
MORG-CD-2014-24

v.
TK MINING SERVICES, LLC, and
THE MARSHALL COUNTY COAL
COMPANY, formerly known as
MCELROY COAL COMPANY,
Respondents.

Mine ID: 46-01437
Contractor ID: K393
Mine: McElroy Mine

SECRETARY OF LABOR, MSHA,
on behalf of MATTHEW G. TOTTEN,
Complainant,

Docket No. WEVA 2015-101-D
MORG-CD-2014-22

v.
TK MINING SERVICES, LLC, and
THE MARSHALL COUNTY COAL
COMPANY, formerly known as
MCELROY COAL COMPANY,
Respondents.

Mine ID: 46-01437
Contractor ID: K393
Mine: McElroy Mine

36 FMSHRC Page 2874

SECRETARY OF LABOR, MSHA,
on behalf of JOSEPH A. WHIPKEY,
Complainant,

Docket No. WEVA 2015-102-D
MORG-CD-2014-25

v.
TK MINING SERVICES, LLC, and
THE MARSHALL COUNTY COAL
COMPANY, formerly known as
MCELROY COAL COMPANY,
Respondents.

Mine ID: 46-01437
Contractor ID: K393
Mine: McElroy Mine

DECISION AND ORDER OF TEMPORARY REINSTATEMENT
and ORDER DISMISSING DOCKETS NO. WEVA 2015-99-D & WEVA 2015-100-D
Appearances:

M. del Pilar Castillo, Esq. and John A. Nocito, Esq., Office of the
Solicitor, U.S. Department of Labor, Philadelphia, PA, for the
Complainants
Matthew M. Linton, Esq., Holland & Hart LLP, Denver, CO, for
Respondent TK Mining Services, LLC
Michael D. Glass, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C.,
Pittsburgh, PA, for Respondent The Marshall County Coal Company

Before:

Judge Rae
DECISION

This matter is before me upon four Applications for Temporary Reinstatement filed by
the Secretary of Labor on behalf of Thomas A. Simpkins, Bucky Thompson,1 Matthew G.
Totten, and Joseph A. Whipkey (“the Complainants”), respectively, pursuant to section 105(c)(2)
of the Federal Mine Safety and Health Act of 1977 (“the Mine Act”), 30 U.S.C. § 815(c)(2), and
Commission Rule 45, 29 C.F.R. § 2700.45.
A hearing on the four applications was held in Morgantown, West Virginia on November
14, 2014. At the hearing, the Secretary withdrew the Applications for Temporary Reinstatement
filed on behalf of Simpkins and Thompson. The parties presented arguments and evidence with
regard to the two remaining applications. For the reasons set forth below, I grant the two
remaining applications and order the temporary reinstatement of Totten and Whipkey.
1

The case caption formerly referred to Mr. Thompson as “Kenneth R. Thompson.” At
the hearing, he informed the Court that his legal name is Bucky Kenneth Ronald Thompson, and
he goes by his first name. Transcript at 12-13, 17. The case caption has been amended
accordingly.

36 FMSHRC Page 2875

Agreed Facts
At the hearing, the parties entered into the following ten stipulations of fact:
1. At all times relevant to these proceedings, Respondent The Marshall County Coal
Company (“Marshall County Coal”) was an operator of the Marshall County Mine,
formerly known as the McElroy Mine, Mine ID No. 46-01437.
2. The Marshall County Mine is a mine as that term is defined in section 3(d) of the Mine
Act, 30 U.S.C. § 802(d).
3. Respondent Marshall County Coal is engaged in the operation of a coal mine and is,
therefore, an operator as that term is defined in section 3(d) of the Mine Act.
4. At all times relevant to this proceeding, products of the Marshall County Mine entered
commerce, or the operation or products thereof affected commerce within the meaning
and the scope of section 4 of the Mine Act, 30 U.S.C. § 803.
5. Respondent TK Mining Services, LLC (“TK Mining”) is an independent contractor
performing services or construction at a coal mine and is, therefore, an operator as
defined in section 3(d) of the Mine Act.
6. Thomas Simpkins was previously employed by TK Mining at the Marshall County Mine.
Simpkins is a miner within the meaning of section 3(g) of the Mine Act, 30 U.S.C. §
802(g).
7. Bucky Thompson was previously employed by TK Mining at the Marshall County Mine.
Thompson is a miner within the meaning of section 3(g) of the Mine Act.
8. Matthew Totten was previously employed by TK Mining at the Marshall County Mine.
Totten is a miner within the meaning of section 3(g) of the Mine Act.
9. Joseph Whipkey was previously employed by TK Mining at the Marshall County Mine.
Whipkey is a miner within the meaning of section 3(g) of the Mine Act.
10. Marshall County Coal and TK Mining are subject to the jurisdiction of the Federal Mine
Safety and Health Review Commission. The presiding Administrative Law Judge has the
authority to hear this case and issue a decision regarding this matter.
Tr. 7-9.2

2

The abbreviation “Tr.” refers to the transcript of the November 14, 2014 hearing.

36 FMSHRC Page 2876

Summary of Evidence
The Complainants were hired in 2014 as general hourly laborers for TK Mining, which
provides independent contracting services in underground mines. Tr. 18, 52, 78. In July 2014,
Marshall County Coal, which is a subsidiary of Murray American Energy, Inc., hired TK Mining
to provide necessary belt maintenance services at the Marshall County Mine (formerly McElroy
Mine) in Marshall County, West Virginia. Tr. 11, 107-8. The four Complainants were assigned
to work the day shift as a crew shoveling the 5 North #1 belt line at the mine. Tr. 79. The crew’s
task was to shovel rib rolls and debris on the tight side (or off-side) of the belt to clear a two-foot
walking path for fire bosses. Tr. 19-20, 53, 79. They were instructed to start at the #7 crosscut
and work their way inby. Tr. 43, 87. The crew leader was Thompson, who holds about two years
of underground mining experience. Tr. 17-8, 20.
On August 13, 2014, the Complainants arrived at the mine to begin their shift around
8:00 AM, traveled to the #9 crosscut along the belt line where they would be shoveling that day,
and began their work. Tr. 22-3, 54-5, 80-2. Around 11:00 AM, a thick haze of rock dust came
wafting along the belt line from inby where the crew was working. Tr. 23-4, 43, 82. The crew
donned paper masks and continued working for five to fifteen minutes, but the dust thickened
and became too much for the masks to handle. Tr. 56-7, 83-4. Totten explained that at first it was
a small amount of dust as if from a can or trickle duster, but several minutes later it became a
“solid wall almost of just white” that he presumed was bulk dust from track dusting. Tr. 83-4.
The Complainants stopped shoveling and walked outby to the nearby air split at the #8 crosscut,
where fresh air was present, because they believed it was unsafe to continue working in the dusty
conditions due to greatly impaired visibility and the health hazards associated with rock dust
inhalation.3 Tr. 24, 31, 57-9, 84-6. Thompson testified that the crew waited 35 to 40 minutes for
the dust to subside before returning to work, then took their lunch break shortly thereafter and
began shoveling again around 12:30 PM. Tr. 25. Whipkey and Totten testified the crew took an
early lunch then returned to work when the dust had settled. Tr. 59, 86-8.
Just after 1:00 PM (according to Thompson), or an hour and a half after the miners had
resumed shoveling (according to Whipkey and Totten), the dust came up once more and the crew
again retreated to the fresh air at the split. Tr. 25, 60, 88-9. While the crew was waiting for the
dust to subside, a fire boss passed by, covered in white from the rock dust. Tr. 25-27, 61-3, 90-1.
He was coming from the same direction as the dust. Tr. 26, 91. He stopped to clean his glasses
and spoke with to the crew briefly, acknowledging the dusty conditions and informing the crew
that rock dusting was taking place at the #32 crosscut. Tr. 26, 30, 61-3, 91-2.
Later, while the crew was still waiting at the air split, an unfamiliar man approached and
looked at them from the other side of the belt. Tr. 27-30, 63-4, 92-4. Whipkey testified that the
3

Specifically, Totten, who has about four years of underground mining experience,
testified that breathing such dust could cause silicosis. Tr. 84. He further felt that the dust
exposed the crew to hazards in that visibility was reduced “to where you can’t see what you’re
doing.” Tr. 84-5. Whipkey also testified that the dust reduced visibility and caused coughing, a
runny nose, and eye irritation. Tr. 57. Thompson testified that it burned the lungs and nostrils and
explained that a miner could be seriously injured by tripping and falling under the moving belt
due to impaired visibility. Tr. 24, 31.

36 FMSHRC Page 2877

man stared directly at him but said nothing, although it was so loud on the belt line that it was
difficult to hear. Tr. 63. It was the end of the shift, so the crew began walking out of the mine.
Thompson testified that the unidentified man “looked under the belt, looked at me, smiled,” and
seemed to walk with the crew as they departed the air split, but when he looked back again the
man had disappeared. Tr. 28. Totten added that the crew had stopped and waited when they got
to the head drive in case the unidentified man needed to talk to them, but the man exited through
a man door without speaking to them. Tr. 93. When the crew returned to the surface Thompson
prepared a daily shift report stating: “Shoveled 30 feet inby of 8¾ wall and under the rollers at 5
north belt. They started dusting at 11:30 and started back up at 1. Got dusted out.” Gov’t Ex. 1;
Tr. 32-36. Thompson delivered copies of the report to various members of mine management,
including Mine Superintendent Eric Lipinski (an employee of Marshall County Coal) and TK
Mining’s Eastern Operations Manager, Jim Holthouser, who was the crew’s direct supervisor
and had assigned the four of them to the Marshall County Mine job. Tr. 34, 43-4, 48-50.
Later that same day, Lipinski sent an email to Holthouser stating that the Complainants
had been observing sitting and lying down on the job and were performing below standards, and
he no longer needed their services at the mine. Tr. 98, 119. Lipinski testified he had sent
engineer Paul McGee to investigate the crew. Tr. 116. McGee had reported that the
Complainants were making insufficient progress at their assigned task and had walked away
when he tried to talk to them. Tr. 116-9.
Holthouser met with the Complainants the evening of August 13 and told them they were
suspended pending an investigation into the allegations contained in Lipinski’s email. Tr. 36, 668, 95-7. According to Totten, the Complainants explained to Holthouser that they had stopped
working during their shift because of the dusty, unhealthful conditions; Holthouser assured the
crew that he would check the mine records to verify that rock dusting had occurred on their shift,
and if so they would keep their jobs. Tr. 97-9. The shift foreman’s report confirmed that rock
dusting had taken place August 13. Tr. 126. However, Lipinski met with Holthouser and stated
that he did not want the four men working at the mine anymore. Tr. 120. Holthouser called the
Complainants to the mine and gave them termination letters on August 18, 2014. Tr. 37, 70-1.
According to Totten and the MSHA investigator, Holthouser indicated the four men had been
fired because of the email from Lipinski. Tr. 98.
Legal Framework and Analysis
Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any
right that is protected under the Mine Act. The purpose of the protection is to encourage miners
“to play an active part in the enforcement of the [Mine] Act,” recognizing that “if miners are to
be encouraged to be active in matters of safety and health they must be protected against any
possible discrimination which they might suffer as a result of their participation.” S. Rep. No.
95-181, at 35 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 623 (1978).
Section 105(c)(2) of the Mine Act provides: “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

36 FMSHRC Page 2878

complaint.” 30 U.S.C. § 815(c)(2). Thus, unlike a trial on the merits of a discrimination
complaint, where the complainant bears the burden of proof by a preponderance of the evidence,
the scope of this temporary reinstatement proceeding is limited by statute to the issue of whether
the underlying discrimination complaints were “not frivolously brought.” Sec’y of Labor on
behalf of Deck v. FTS Int’l Proppants, LLC, 34 FMSHRC 2388, 2390 (Sept. 2012); Sec’y of
Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d sub
nom. Jim Walter Resources, Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990); see also
Commission Rule 45(d), 29 C.F.R. § 2700.45(d).
A claim is not frivolously brought if it “appears to have merit.” FTS Int’l Proppants, 34
FMSHRC at 2390, citing 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 Eleventh Circuit has explained that this standard is “strikingly similar to a
reasonable cause standard” and reflects 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, 747-8 (11th Cir. 1990).
While the Secretary is not required to present a prima facie case of discrimination to
prevail in a temporary reinstatement proceeding, it is helpful to review the elements of the
underlying discrimination claim to determine if the evidence at this stage satisfies the “not
frivolously brought” standard. Sec’y of Labor on behalf of Williamson v. CAM Mining, LLC, 31
FMSHRC 1085, 1088 (Oct. 2009). As a general proposition, to demonstrate a prima facie case of
discrimination under section 105(c) of the Mine Act, the Secretary must establish that the
complainant participated in a safety-related activity protected by the Mine Act, and that the
adverse employment action complained of was motivated, in some part, by that protected
activity. Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797800 (Oct. 1980), rev’d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (3d Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3
FMSHRC 803, 817-8 (Apr. 1981). Although the judge may review the elements of the
underlying discrimination claim, it is not the judge’s duty to resolve conflicts in testimony or to
entertain the operator’s rebuttal or affirmative defenses during the temporary reinstatement
proceeding. FTS Int’l Proppants, 34 FMSHRC at 2390; Sec’y of Labor on behalf of Albu v.
Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999). It is sufficient for the judge to find that
the Complainant engaged in protected activity, the Respondent had knowledge of that activity,
and there was a coincidence in time between the protected activity and the adverse action. CAM
Mining, LLC, 31 FMSHRC 1085.
In this case, there is no dispute that an adverse employment action occurred when the
Complainants were terminated on August 18, 2014. There is also reasonable cause to conclude
the Complainants engaged in protected activity on August 13, 2014. The Complainants allege
that they engaged in protected activity by refusing to work in conditions that they felt were
unhealthful and unsafe when a dense cloud of airborne rock dust permeated their work area.
Marshall County Coal’s witness, Mine Superintendent Lipinski, confirmed that rock dusting took
place in the mine on the day in question. Tr. 126. The Complainants testified that the rock dust
was so thick it irritated their eyes, noses, and throats and also greatly reduced visibility in the belt
area where they were working, giving rise to trip-and-fall hazards. Tr. 24, 31, 57, 84-5. Totten

36 FMSHRC Page 2879

testified that inhalation of rock dust can cause silicosis. Tr. 84. Thus, the Complainants were
aware that working in rock dust exposed them to health and safety hazards and they refused to
work in that environment. Based on the hearing testimony, I find that the Secretary’s claim that
the Complainants engaged in a protected work refusal appears to hold merit.
Because the claims of protected activity and adverse employment action appear to hold
merit, the sole remaining question is whether the Secretary had reasonable cause to claim that the
adverse employment action was motivated at least in part by the protected activity – that is, the
termination of the Complainants was motivated at least in part by discriminatory intent. The
Commission has long recognized that direct evidence of motivation is rarely encountered, and
more often the only available evidence of discriminatory intent is indirect. CAM Mining, LLC, 31
FMSHRC at 1089, citing Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3
FMSHRC 2508, 2510 (Nov. 1981), rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983).
Circumstantial evidence that can serve as indicia of discriminatory intent includes the operator’s
hostility or animus toward the protected activity, the operator’s knowledge of the protected
activity, and coincidence in time between the protected activity and adverse action. Id.
In this case, the alleged protected activity occurred on August 13, 2014 and the
Complainants were fired five days later on August 18, 2014, showing a coincidence in time. The
managers involved in the termination decision, Lipinski and Holthouser, apparently had
knowledge of the alleged protected activity. Totten testified that the Complainants told
Holthouser about the protected activity when he suspended them the evening of August 13. Tr.
97-9. Lipinski subsequently conferred with Holthouser about the incident, and he also had a copy
of the Complainants’ daily shift report for August 13 stating they had been “dusted out” and was
aware that rock dusting had taken place in the mine that day. These factors serve as
circumstantial evidence that the Complainants’ discharge was motivated by the alleged protected
activity.4 Accordingly, I find that the Secretary had reasonable cause to infer discriminatory
intent. Under these circumstances, I find that the discrimination complaints appear to hold merit
and were not frivolously brought.
Finally, I note that at the hearing Marshall County Coal questioned whether it could be
held liable for temporary reinstatement because it did not directly employ the Complainants. Tr.
109. However, aside from prohibiting retaliatory discharge by an employer, section 105(c) of the
4

In fact, Lipinski’s testimony shows the Complainants’ discharge was directly linked to
their alleged protected activity, namely, their refusal to work in an allegedly unhealthy and
unsafe environment on August 13. Lipinski’s discovery that the four men had been sitting in the
air split instead of doing work on August 13 was what spurred him to email Holthouser that their
services were no longer needed in the mine. Tr. 117-9. Marshall County Coal attempted to elicit
testimony from Lipinski that the Complainants’ work performance also factored into his decision
that he did not want them working in the mine. However, such testimony goes to an affirmative
defense, and as noted above, analysis of the operator’s rebuttal or affirmative defenses does not
fall within the limited scope of this temporary reinstatement proceeding. FTS Int’l Proppants, 34
FMSHRC at 2390; Chicopee Coal Co., 21 FMSHRC at 719. In addition, to the extent that the
Complainants’ work performance was negatively affected by any protected activity in which
they may have engaged, firing the Complainants for their work performance might have been
tantamount to firing them for their protected activity.

36 FMSHRC Page 2880

Mine Act also allocates liability to anyone who discriminates against a miner or who causes a
miner to be discharged or discriminated against due to protected activity. 30 U.S.C. § 815(c)(1).
The Secretary theorizes that Marshall County Coal instructed TK Mining to discharge the
Complainants and TK Mining carried out the discharge, so both entities can be held liable under
the Mine Act. Tr. 110. Lipinski is an agent of Marshall County Coal, and considering his
involvement in the termination decision, I find that it was not frivolous for the Secretary to
initiate discrimination complaints against both Respondents even though Marshall County Coal
was not the actual employer.
ORDER
Because the Secretary has withdrawn the Applications for Temporary Reinstatement filed
on behalf of Simpkins in Docket No. WEVA 2015-99-D and Thompson in Docket No. WEVA
2015-100-D, those two dockets are hereby DISMISSED.
The Applications for Temporary Reinstatement filed on behalf of Totten in Docket No.
WEVA 2015-101-D and Whipkey in Docket No. WEVA 2015-102-D are hereby GRANTED.
The Respondents are ORDERED to immediately reinstate Totten and Whipkey to their positions
as of the date of their termination, or to similar positions, at the same rate of pay and with all
rights and benefits to which they are entitled. The Court retains jurisdiction over these temporary
reinstatement proceedings.

/s/ Priscilla M. Rae
Priscilla M. Rae
Administrative Law Judge

36 FMSHRC Page 2881

Distribution:
John Nocito, Esq. and M. Del Pilar Castillo, Esq., Office of the Solicitor, U.S. Department of
Labor, The Curtis Center, Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106
Thomas Simpkins, HC 81, Box 139S, Matewan, WV 25678
Bucky Thompson, 1105 12th Street, Lot 9, Moundsville, WV 26041
Matthew G. Totten, 153 National Road, Apt. PHB, Wheeling, WV 26033
Joseph Whipkey, 5 First Street, Beech Bottom, WV 26030
Philip K. Kontul, Esq. and Matthew M. Glass, Esq., Ogletree, Deakins, Nash, Smoak & Stewart,
P.C., One PPG Place, Suite 1900, Pittsburgh, PA 15222
Matthew M. Linton, Esq., Holland & Hart LLP, 6380 S. Fiddler’s Green Cir., Suite 500,
Greenwood Village, CO 80111

36 FMSHRC Page 2882

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
TH
721 19 ST. SUITE 443
DENVER, CO 80202-2500
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

November 19, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
SCH TERMINAL COMPANY, INC.,
Respondent.

CIVIL PENALTY PROCEEDING
Docket No. KENT 2013-413
A.C. No. 15-18639-311429
Docket No. KENT 2013-378
A.C. No. 15-18639-308629
Mine: Calvert City Terminal, LLC
DECISION

Appearances:

Willow E. Fort, U.S. Department of Labor, Office of the Solicitor
618 Church Street, Suite 230, Nashville, TN 37219
Flem Gordon, Gordon Law Offices
121 W. Second Street P.O. Box 1146 Owensboro, KY 42303

Before:

Judge Simonton
I. INTRODUCTION

This case is before me on a civil penalty petition filed by the Secretary of Labor, acting
through the Mine Safety and Health Administration, against SCH Terminal Company, Inc.
(Respondent), pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815
and 820. This case involves four 104(a) citations issued in response to a fatal drowning accident
that occurred on February 26, 2012 at the Calvert City Terminal mine. The Secretary has
proposed specially assessed penalties which total $163,003.00. On November 20, 2013, I
granted the Secretary’s motion for partial summary judgment, holding that MSHA had
jurisdiction over work activity on barges at the Calvert City riverside loading dock. Order
Granting Partial Summary Judgment. The parties presented testimony and documentary
evidence at a hearing held in London, Kentucky beginning May 14, 2014 followed by
submission of post hearing briefs.
Prior to hearing, the parties agreed to a detailed list of stipulations. Tr. I, 7-8. At
hearing, MSHA Inspector Richard Hardison testified for the Secretary. SCH Manager William
Rager, Safety Trainer David Hicks, Consultant James Manley and retired MSHA Supervisor
Roderic Breland testified for the Respondent. For the reasons that follow, Citation Nos.
7657715, 7657713, and 7657714 are VACATED. Citation No. 7657716 is AFFIRMED as
originally written. For reasons explained below I am assessing a total penalty of $25,000.00.

36 FMSHRC Page 2883

II. BACKGROUND
The Calvert City Terminal is a coal-handling and processing facility located on the
Tennessee River in Calvert City, Marshall County, Kentucky. Jt. Stip. 8, 12, 17. The terminal
has a land based processing facility and a riverside dock that loads custom blended coal onto
customer barges. Order Granting Partial Summary Judgment, 2.
The terminal receives shipments of coal from producers by barge, rail, and truck. Once
the coal is received, it is unloaded and stored at the terminal. Id. Customers place orders for
the amount and desired blend of coal. Id. The terminal uses a series of hoppers, belts, and
conveyors to blend coal to the customer’s specifications on the land portion of the terminal. Id.
Once blended, the coal is sent onto a series of belts and loaded into rail cars, coal trucks, or
barges that are owned by customers or independent contractors. Id. Respondent receives
barges at the riverside dock facility. Tr. I, 28, 185-86. The barges vary in size and specific
configuration and are provided by the customer for Respondent to load. Tr. I, 186, 193-94.
The standard coal barge is approximately 195 feet long by 35 feet wide. Tr. I, 193. The outside
gunnels of the barges are approximately 8-12 feet above the water prior to loading. Tr. I, 64.
The barges lower down to approximately three feet above the water after loading. Tr. I, 64-65.
The exterior gunnel walkway of the coal barges is approximately two to three feet wide. Tr. I,
131; Tr. II, 42-43. Some barges have rake ends with platforms 6-20 feet long. Tr. I, 194.
Barge interior cargo holds are buffered by a combing that ranges from 36 to 40 inches tall. Tr. I,
195. The gunnel walkway has eighteen inch wing hatches with locking lids used to inspect and
pump out the barge wing tanks. Tr. II, 22-24. An independent contractor, Wepfer Marine,
maneuvers the barges into position under direction of Respondent’s load out operator. Tr. I,
186; GX 8, 4.1
Prior to February 26, 2012, the barges next in line were tied off loosely to the fixed barge
and maneuvered when needed by tugboats. Tr. I, 71, 198; Tr. II, 96; GX. 3, p. 6. The
deckhands stage, draft and pump in-line barges, and then tie the barges to a winch system in
order to be loaded. Tr. I, 30, 100-01; GX, 7-8. A deckhand “drafts” a barge by walking out
onto the gunnel or platform surrounding the barge’s hold. Tr. I, 30. The deckhand then extends
a long measuring stick, called a “drafting stick,” down to the surface of the water below to
determine the position of the barge. Id. The drafting stick measurements are relayed to the
load-out operator in charge of the chute, which extends out over the barge to load the coal. Tr. I,
30-31.
Prior to February 26, 2012, the Respondent did not require deckhands to use fall
protection while drafting the barges. Tr. I, 191-92. The Respondent did require all deckhands
to wear a U.S. Coast Guard approved flotation vest. Tr. I, 207, 223. The life-vest in use prior
to the accident did not support an unconscious person’s head above water. Tr. I, 251. There
have previously been instances where SCH personnel fell into the water while working on the
barges, but all apparently swam to safety without incident. Tr. I, 75, 247.
1

Volume 1 of the transcript will be designated as Tr. I, volume 2 as Tr. II. Consistent
with the hearing record the Secretary’s exhibits will be denoted as GX and Respondent’s exhibits
RX.

36 FMSHRC Page 2884

Respondent’s Safety Trainer David Hicks provided annual safety training and general fall
protection instruction to all SCH employees, including accident victim Kevin Meyers. Jt. Stip.
24; Tr. I, 239. On February 24, 2012, MSHA completed a regularly scheduled E 01 Inspection
of the SCH terminal. Jt. Stip. 15. MSHA did not issue any citations regarding illumination, fall
protection, or inadequate training at the SCH loading dock during the E 01 inspection. Tr. I,
192, 202; GX 13, 3.
The Calvert City terminal is located in Calvert City, Kentucky in the Central Time Zone.
Tr. I, 118. The MSHA Hotline Call Center is located in Arlington, Virginia in the Eastern Time
Zone. Tr. I, 117, 119.
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. February 26, 2012 Accident
During the night shift of February 25-26, 2012, SCH personnel loaded coal at the
riverside dock onto a string of barges. Tr. I, 37; GX 3, 5-6. The air temperature was 26 degrees
and the water temperature in the river was approximately 47 degrees. Tr. I, 116, GX, 3, 9. At
approximately 1:10 AM CST, SCH load-out operator Matt Kissiar asked deckhand Kevin
Meyers by radio to draft the next barge in line. Tr. I, 37; GX Ex. 3, 5. Mr. Meyers crossed
over to an empty barge, which was tied off loosely to the fixed loading dock. Tr. I, 53; GX 3, 6.
Meyers wore a coast guard-approved life-vest, personal radio, and carried a flashlight and
drafting stick with him when he crossed over to the empty barge. Jt. Stip. 18.
At approximately 1:15 a.m., Kissiar asked where Meyers was after Meyers failed to
report drafting measurements and was not visible. Tr. I, 37; GX Ex. 3, 4. SCH personnel and
Wepfer Marine began searching for Meyers in both the river and within the cargo hold of the
barge. Tr. I, 37-38; Sec’y Ex. 3, 7. A Wepfer Marine deckhand spotted and then retrieved
Meyers’ ball cap from the river at approximately 1:25 a.m. Tr. I, 129, GX 3, 8. At 1:34 a.m.,
Wepfer Marine requested the US Coast Guard to stop river traffic and also called 911 to request
a rescue squad. Tr. I, 115; GX 8, 4. The Marshal County Rescue Squad located Meyers’ body
floating face down under the rake end of the fixed work barge at 2:36 a.m. Tr. I, 74, 116. Mr.
Meyers was pronounced dead at 3:40 a.m. by the Marshall County Coroner. GX 3, 8-9.
Meyers’ body did not exhibit any signs of broken bones, bleeding or obvious physical trauma.
GX 3, 11. The Coroner determined that the cause of Mr. Meyers’ death was drowning. Tr. I, 8;
GX 3, 13; GX 8, 6.
B. Citation No. 7657715
Inspector Hardison issued Citation No. 7657715 for an alleged violation of 30 CFR §
77.1710(g) on September 18, 2012. Hardison alleged within the citation that:
Safety belts or lines were not provided to protect miners from
falling into the water while performing work on barges. The mine

36 FMSHRC Page 2885

operator’s failure to provide safety belts or lines contributed to a
fatality involving a deckhand on February 26, 2012.
GX 11, 1.
Hardison designated Citation No. 7657715 as a high negligence violation that contributed
to the occurrence of a fatal injury. The Secretary has proposed a specially assessed penalty of
$52,500.00 for Citation No. 7657715. GX 13, 3.
1. Testimony
Inspector Hardison testified on the basis of his visits to Respondent’s loading dock on
February 26, 2012 and October 23, 2012. Tr. I, 36. Hardison stated that his observations and
interviews led him to conclude that SCH employees were particularly exposed to falling into the
river while drafting the barges at night. Tr. I, 78. Hardison was concerned that deckhands had
to hold the drafting rod in one hand and use their other hand to point a flashlight down the rod
while leaning out over the edge of the barge. Id. He testified that deckhands could also fall 810 feet into the interior cargo hold before the barge was loaded. Tr. I, 72. Hardison stated that
he did not believe it was possible for a deckhand to maintain three points of contact with the
combing while carrying both a flashlight and drafting stick. Tr. I, 173-74. Hardison testified
that MSHA had previously issued a Program Information Bulletin on July 8, 2010, notifying coal
operators that an employee had drowned while wearing a life vest after falling from a barge into
cold water. Tr. I, 80-81; GX 5 (PIB No. 10-08). Hardison stated that Respondent should have
realized that drafting the barges at night involved inherently dangerous conditions that required
the use of fall protection. Tr. I, 76-77. On cross-examination, Hardison conceded that he did
not have any prior work or inspection experience on barges. Tr. I, 172-73. He also confirmed
that after the accident, MSHA tech support visited Respondent’s loading dock, but were unable
to provide viable guidelines for a barge based fall protection system. Tr. I, 158.
Respondent’s Chief Operating Officer William Rager testified regarding the work
conditions at the SCH loading dock. Rager stated that he had worked for SCH for over 29 years
and had performed many dockside tasks previously. Tr. I, 185. Rager testified that MSHA had
never previously issued any citations regarding fall protection at the SCH loading dock. Tr. I,
192. Rager opined that tying off to a moveable barge was more hazardous than potential falls
into the river. Tr. I, 193. He explained that employing a tie-off system on a moveable barge
could cause a deckhand to be caught between barges and or the dock. Tr. 192-93. Rager
testified that in visiting numerous riverside loading facilities, he had never observed a deckhand
use a tie-off system to prevent falls into water. Tr. I, 191. Rager did state that deckhands
would use fall protection when working on covered barges above hard surfaces. Tr. I, 217.
However, he stated that the interior cargo hold of the open coal barges loaded by SCH were
protected by a combing that averaged somewhere between 36 and 40 inches high. Tr. I, 195.
Rager testified that Mr. Meyers had worked with Respondent for over 5 years and spent
the majority of his time working as a deckhand. Tr. I, 188. Rager stated that after the accident,
Respondent consulted with several engineering companies regarding possible fall protection
systems, but none of these companies offered a system designed to prevent workers from falling
off the barge into water. Tr. I, 229-233. He testified that following Meyers’ accident,

36 FMSHRC Page 2886

Respondent instituted a number of new safety protocols. Tr. I, 210. These measures included
drafting barges from the fixed barge side while attached to the winch system, use of a different
type of lifejacket, use of personal locators, and an improvised tie off method designed by
Respondent’s personnel. Tr. I, 211-15, 221.
Respondent’s Safety Trainer David Hicks testified regarding Respondent’s fall protection
training. Hicks stated that in addition to his normal electrical duties, he had previously worked
as a deckhand and drafted barges. Tr. I, 236. Hicks stated that he had always interpreted 30
CFR 77.1710(g) as applying to potential falls onto hard surfaces. Tr. I, 255. Hicks
acknowledged that an SCH worker had previously fallen into the river, but swam safely to shore
with the use of a lifejacket. Tr. I, 247.
Marine Surveyor James Manley testified for the Respondent regarding industry practices
on navigable barges. Manley had worked as marine surveyor for 37 years and owned a fleet of
towboats and barges. Tr. II, 8. Manley had previously testified as an expert witness on marine
practices in federal admiralty courts. Tr. II, 9. He stated that deckhands never tie off to
navigable barges while maneuvering, securing, or drafting barges. Tr. II, 14, 16. Manley
explained that tying off to a navigable barge increased the dangers associated with working
around loading equipment and other moving barges. Tr. II, 17, 27. He opined that a fall from a
barge into water did not present a fall hazard in itself and the use of a lifejacket minimized
drowning hazards. Tr. II, 16-17.
Manley did state that fall protection was used at barges when elevated work was
performed above a hard surface. Tr. II, 16. On cross-examination, Manley explained that wing
hatches on a typical coal barge are 18 inches in diameter and are not large enough for it to be
likely for a significant fall or injury to occur. Tr. II, 34-35. He specifically stated that the
eighteen inch wing hatches did not present a fall hazard similar to the four foot by seven foot
hatch on a covered barge that had been involved in a fatality at a different operator’s facility.
Tr. II, 32-34. Manley testified that the typical coal barge has a three foot high combing that
protects deckhands from falling into the interior cargo and allows workers to maintain three
points of contact while walking on the exterior gunnel. Tr. II, 42-43. Manley specifically
stated that the exterior gunnel, or wing deck, of an open coal barge is three feet three inches
wide. Id.
2. The Cited Standard
30 CFR 77.1710(g) mandates that:
Safety belts and lines (shall be worn) where there is danger of
falling; a second person shall tend the lifeline when bins, tanks, or
other dangerous areas are entered.
Within the same section, 30 CFR 77.1710(h) provides that:
Lifejackets or belts (shall be worn) where there is danger from
falling into water.

36 FMSHRC Page 2887

The MSHA Program Policy Manual (PPM) states that:
Paragraph (g) of this section requires that safety belts and lines
shall be worn where there is a danger of falling, except when
safety belts and lines may present greater hazard or are impractical.
In those cases, the standard requires that alternative precautions be
taken to provide the miners with an equal or greater degree of
protection. Substantial scaffolding with adequate guardrails or
safety nets are acceptable alternatives. The objective of this
policy is to insure that miners working where there is a danger of
falling are always protected.
PPM, Vol. V, p. 208-209.
MSHA’s Program policy manual does not provide any specific guidance on 30 CFR
77.1710(h). However, the July 2010 PIB testified to by Inspector Hardison states that:
MSHA recommends the following Best Practices when working at
river load out facilities:
Where possible, install and use lifeline tie-off runs and fall
protection.
Where fall protection is not feasible, always wear a life
jacket when working around bodies of water.
GX 5, 2 (emphasis added).
Neither 30 CFR 77.1710(h) nor the July 2010 PIB require or recommend the use of a
particular type of lifejacket when there is a danger of falling into water. 30 CFR 77.1710(h);
GX 5, 2.
3. Statutory Interpretation
An operator is entitled to the due process protection available in the enforcement of
regulations. Energy West Mining Co., 17 FMSHRC 1313, 1317 (Aug. 1995). When a violation
of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be
construed to mean what an agency intended but did not adequately express. Id. Laws must
give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so
that he may act accordingly. Id. at 1318. The Commission applies a reasonably prudent person
test to determine, “whether a reasonably prudent person familiar with the mining industry and
the protective purposes of the standard would have recognized the specific prohibition or
requirement of the standard.” Id.
A regulation must be interpreted so as to harmonize and not to conflict with the objective
of the statute it implements. Cumberland Coal Res., L.P. v FMSHRC, 2005 WL 3804997 (D.C.

36 FMSHRC Page 2888

Cir. 2005). Regulatory language cannot be construed in a vacuum and the words of a statute
must be read in their context and with a view to their place in the overall statutory scheme.
Northshore Mining Company v. Secretary of Labor, 709 F.3d 706, 710 (8th Cir. 2013). An
agency’s interpretation of its own standards should be given deference when the interpretation is
sensible and in accord with purposes of the Act. Energy West Mining Co v. FMSHRC, 40 F. 3d
457, 460 (D.C. Cir. 1994). However, an agency’s interpretation of a regulation is not owed
deference if it fails to correspond to the apparent purpose of the regulation and overall placement
within the regulation. Northshore Mining, 709 F.3d at 711-712 (holding that standard protecting
workers from electrocution did not require protection from mechanical movement); see also
Phelps Dodge Corp. v. FMSHRC, 681 F.2d 1189 (9th Cir. 1982). MSHA publications such as a
PIB and or the PPM may aid the Commission in determining the proper application of a
regulation. Connolly Pac. Co., 33 FMSHRC 2270, 2277 (ALJ Miller)(Sept. 2011); TwentyMile
Coal Co., 30 FMSHRC 736, 738(Aug. 2008)(split decision upholding Secretary’s interpretation
when PIB detailed mandatory requirements of regulation).
4. Party Arguments
The Secretary argues that 30 CFR 77.1710(g) is not limited to falls onto a particular type
of surface. Sec’y Br., 20. The Secretary contends that deckhands were exposed to falls into
both interior cargo holds and the water. Id. at 21. The Secretary states that the use of fall
protection was feasible at Respondent’s loading dock and that SCH management were aware of
fall protection systems in use at other loading docks. Id. at 22. The Secretary argues that 30
CFR § 77.1710(g) applies to all fall hazards and 30 § CFR 77.1710(h) merely supplements 30
CFR § 77.1710(g) when water presents a hazard. Id. at 21-22. The Secretary argues that
MSHA’s failure to previously issue fall protection violations at the loading dock does not present
a viable defense to Citation No. 7657715. Sec’y Br., 17; Sec’y v. Mach Mining, LLC, 34
FMSHRC 1769, 1774 (Aug 2012).
The Respondent argues that 30 CFR § 77.1710(g) is a generic standard while 30 CFR §
77.1710(h) is a specific standard that governs work around water. Resp. Br., 7. The
Respondent contends that it complied with the applicable specific standard, 30 CFR 77.1710(h),
by requiring Mr. Meyers and all other deckhands to wear a U.S. Coast Guard approved life vest
during work on the barges. Resp. Br., 7. The Respondent also argues that the three foot high
combing adequately protects deckhands from falls into the interior cargo. Resp. Br., 7-8. It
contends that the PIB issued by MSHA in 2010 only recommends the use of fall protection on
barges and specifically states that a life jacket shall be worn where fall protection is not feasible.
Resp. Br., 5. The Respondent also argues that MSHA’s failure to issue previous citations or
notifications deprived it adequate notice of the legal position advanced at hearing by the
Secretary. Resp. Br., 8, citing Clintwood Elkhorn Mining, 36 FMSHRC 1282, 1287-88 (ALJ
Rae)(May 2014)(vacating alleged violation of 77.1710(g) when MSHA failed to issue citations
regarding obvious condition prior to fatal fall; Lanham Coal, 13 FMSHRC 1341, 1333-34
(1991)(remanding case when ALJ failed to determine whether the 30 CFR 77.1710(g) provided

36 FMSHRC Page 2889

adequate notice to the operator that the use of fall protection was required under the
circumstances).2
5. Findings
After reviewing all evidence submitted, I conclude that the Secretary has not shown that
the Respondent violated 30 CFR 77.1710(g). As an initial observation, I again note that
Inspector Hardison conceded he had no previous work or inspection experience at loading docks.
Tr. I, 83, 127. Although Mr. Hardison claimed that he had previously inspected unfamiliar work
sites, I found his application of 30 CFR 77.1710(g) to navigable barges vague and unsupported
by any published guidance or industry practice. Tr. I, 31-32, 76-77. Furthermore, during crossexamination, I found his testimony evasive and non-responsive to questions regarding the
application of the cited standard. Tr. I, 163-64. Additionally, I found the testimony of Mr.
Rager, Mr. Hicks, and Mr. Manley straight forward, detailed, unequivocal and credible, and
based upon many years of experience at dockside loading operations.
Subsection (g) of 30 CFR 77.1710 mandates that safety belts and lines must be used
when there is a danger of falling. 30 CFR 77.1710(g). The Secretary failed to present any
evidence that a fall of 8-10 feet into water presents a significant hazard in and of itself. On cross
examination, Inspector Hardison conceded that there are distinct differences between a fall into
water and a fall onto a hard surface. Tr. I, 159. Indeed, Safety Trainer Hicks testified another
SCH worker had previously fallen into the river and swam to safety with the use of a lifejacket.
Tr. I, 247.
The Secretary has submitted evidence of incidents at other loading docks where a worker
drowned after falling into water and a separate incident in which a worker died after falling into
an empty cargo hold through a large unprotected hatch. GX 5 and 7. However, these incidents
reinforce this court’s finding that the danger of falling into water is drowning while the danger of
falling onto a hard surface is blunt trauma. Indeed, although the Secretary has argued that 30
CFR 77.1710(g) applies in situations of varying fall distances, all of the cases cited by the
Secretary involve falls onto solid surfaces. GX 19; Worley Blue Quarry, Inc., 25 FMSHRC 399,
401 (July 2003) (ALJ Melick); Cannelton Indust. Inc., 7 FMSHRC 1077, 1078(July 1985)(ALJ
Melick); Kaiser Steel Corp., 1 FMSHRC 343, 343 (May 1979).
Furthermore, the language of 30 CFR 77.1710(h) clearly mandates that,
Lifejackets or belts (shall be worn) where there is danger from
falling into water.
30 CFR 77.1710(h).

2

On remand, the ALJ determined that despite evident hazards, a reasonable person
familiar with industry practices would not have realized that tarping a truck required the use of
safety belts and lines and vacated the citation. Lanham Coal, 13 FMSHRC 1710, 1712 (ALJ
Broderick)(October 1991).

36 FMSHRC Page 2890

Thus, the plain text of 30 CFR 77.1710 specifies that the required means of compliance
for a possible fall into water is the use of a lifejacket. 30 CFR 77.1710(h).
Additionally, MSHA’s July 8, 2010 PIB explicitly recognizes that the use of a lifejacket
on a barge without fall protection is allowable in situations where fall protection is infeasible.
GX 5, 2; see also PPM, Vol. V, p. 208-209 (stating that alternate means of protection may be
used to comply with 30 CFR 77.1710(g) when safety lines are hazardous or impractical). In this
regard it is important to note, despite the absence of fall protection, MSHA did not find that the
operator had violated 30 CFR 77.1710(g), after investigating the accident upon which the July 8,
2010 PIB was based. MSHA Accident Investigation Report, CAI-2008-30 (investigating
drowning that occurred on river based coal barge and issuing one citation for a violation of 30
CFR § 48.31(a)).3 Indeed, MSHA had not cited any coal terminal operators for a violation of 30
CFR§ 77.1710(g) in the five years prior to the issuance of this citation. Jt. Stip. 25.
Thus, MSHA has not previously applied the interpretation of 30 CFR 77.1710(g)
advanced by the Secretary at hearing in the instant matter. CAI-2008-30; Jt. Stip. 25. It is well
established that a previous inconsistent enforcement pattern by MSHA inspectors does not offer
a defense to a correct application of the standard. Mach Mining, LLC, 34 FMSHRC 1774.
However, in this case, MSHA’s previous enforcement history of 30 CFR 77.1710(g) merely
reinforces this court’s independent finding that the Secretary’s instant interpretation of 30 CFR
77.1710(g) is unreasonable and contradictory to the plain text of 30 CFR 77.1710, the PPM, and
the PIB. 30 CFR 77.1710 (g)-(h); PPM, Vol. V, p. 208-209; Sec’y Ex. 5, 2.
During cross examination of Mr. Rager, the Secretary’s counsel alluded to available fall
protection systems but did not submit any exhibits or testimony regarding systems available at
the time of the incident. Tr. I, 229-30; GX, 22. Additionally, Rager and Manley consistently
and credibly testified that the use of fall protection on open coal barges was highly unusual and
increased the likelihood of entrapment and crushing hazards. Tr. I, 192-93; Tr. II, 14, 27.
Therefore, I find that the Respondent has credibly demonstrated that the use of fall protection on
the coal barge at issue was infeasible at the time of the accident.4
I further find that the Respondent has submitted convincing rebuttal evidence that the 3640 inch high combing adjacent to the gunnel protected workers from falls into the interior cargo
hold. Tr. I, 195; Tr. II, 42-43. Finally, I conclude that the Secretary’s assertion that 30 CFR
3

http://www.msha.gov/FATALS/2008/ftl08c30.pdf.

4

Mr. Rager testified in detail regarding comprehensive abatement efforts undertaken by
Respondent after the accident including the use of an improvised tie-off method during drafting.
Tr. I, 211-215. This court finds that these remedial efforts, while admirable best management
policies, are not mandatory measures required by the current language of the Mine Act or the
Secretary’s regulations. Indeed, the Respondent adopted several of these measures under duress
from MSHA and has credibly asserted that the prohibition on walking the outside gunnel
increases the risks of a barge sinking during loading due to undetected damage or imbalance.
Tr. I, 196-97. Most critically, it would be inappropriate to rely upon the Respondent’s remedial
measures following the accident to establish liability under the Mine Act. Russell Collins and
Virgil Kelley v. Secretary of Labor, 5 FMSHRC 1339, 1352; Federal Rule of Evidence 407.

36 FMSHRC Page 2891

77.1710(g) imposes additional requirements upon water-side workers who are in compliance
with 30 CFR 77.1710(h) is contradictory to both the plain language of 30 CFR 77.1710 and
MSHA’s official guidance on the two standards. 30 CFR 77.1710(g)-(h); PPM, Vol. V, p. 208209; GX 5, 2.
Therefore, I find that the interpretation of 30 CFR 77.1710(g) advanced by the Secretary
at hearing is undeserving of deference. Northshore Mining, 709 F.3d at 711-712. In a situation
where the use of safety lines was infeasible, the Respondent provided the statutorily required
means of protection for a possible fall into water by requiring all deckhands, including Mr.
Meyers, to wear a U.S. Coast Guard approved lifejacket. 30 CFR 77.1710(h); Sec’y Ex. 5, 2.
The Respondent also complied with the general requirements of 30 CFR 77.1710(g) by
maintaining barge combings that protected workers from falls into the interior cargo hold. Tr. I,
195; PPM, Vol. V, p. 208-209 (stating that the use of guardrails to prevent falls provides an
alternate means of compliance for 30 CFR 77.1710(g)). Accordingly, Citation No. 7657715 is
VACATED.
C. Citation No. 7657713
Inspector Hardison issued Citation No. 7657713 for an alleged violation of 30 CFR §
48.27(a) on September 18, 2012. He alleged within the citation that:
The mine operator failed to provide task training for employees
regarding the use of safety belts or lines where there is a danger of
falling. The mine operator’s failure to provide adequate training
in the use of safety belts or lines contributed to the fatality
involving a deckhand on February 26, 2012.
GX 9, 1.
Hardison designated Citation No. 7657713 as a high negligence violation that contributed
to the occurrence of a fatal injury. The Secretary has proposed a specially assessed penalty of
$52,500.00 for Citation No. 7657713. GX 13, 3.
1. Testimony
Inspector Hardison testified the Respondent’s records indicated that Respondent had
failed to train employees on the fall protection hazards involved in loading coal barges. Tr. I,
85. Hardison stated that he inspected the training records for Mr. Meyers specifically and did
not find any record for instructions regarding fall hazards associated with loading barges. Tr. I,
87. Hardison maintained that the failure to train Meyers in the use of fall protection contributed
to his fall and fatality. Tr. I, 93-94. Hardison confirmed that the Respondent employed an
MSHA certified trainer to provide safety training to employees. Tr. I, 92.
Respondent’s Safety Trainer David Hicks testified regarding the training he provided Mr.
Meyers and other SCH employees prior to February 26, 2012. Hicks testified that he had
conducted the MSHA required 8 hour annual refresher training at the Calvert City terminal for

36 FMSHRC Page 2892

over seven years. Tr. I, 236. Hicks stated that he submitted copies of his training plans to
MSHA for their approval prior to conducting the refresher class. Tr. 237. Hicks testified that
all employees, including deckhands, were provided fall protection training concentrating on
methods of avoiding falls onto hard surfaces. Tr. I, 239. He stated that MSHA inspectors had
previously sat in on the annual refresher course. Tr. I, 238. Hicks testified that he dedicated
one hour of the annual refresher course to fall protection requirements. Tr. I, 239. Hicks stated
that he had provided the annual refresher course, including the fall protection section, to Kevin
Meyers in 2010 and 2011. Tr. I, 247; RX 1, 2-3.
Hicks testified that new deckhands were trained before being allowed to work on the
barges. Tr. I, 241. He explained that deckhands were first taken on a tour of the loading dock
and shown trip hazards and pinch points. Tr. I, 241-42. Hicks stated that new employees spent
their first shift observing loading operations from the facility shack. Id. He testified that once a
deckhand received hands on training on the dock, the trainer and the worker signed a form
certifying that the training had been completed. Id. On cross-examination, Hicks explained
that he specifically warned new deckhands to avoid stepping on man hatches, maintain good
housekeeping, and keep three points of contact with the gunnel while working on the barge. Tr.
I, 255. The Respondent submitted a copy of the syllabus for the annual refresher training, which
included sections on slip/trip hazards and fall protection. Tr. I, 237; Resp. Ex. 1, 2-3.
2. The Cited Standard
The cited standard, 30 CFR § 48.27(c), requires that:
Miners assigned a new task not covered in paragraph (a) of this
section shall be instructed in the safety and health aspects and safe
work procedures of the task, including information about the
physical and health hazards of chemicals in the miner's work area,
the protective measures a miner can take against these hazards, and
the contents of the mine's HazCom program, prior to performing
such task.
3. Findings
The parties stipulated that Kevin Meyers participated in an 8 hour annual refresher course
on July 22, 2011. Jt. Stip. 24. After reviewing Hardison’s testimony it appears that Hardison
located task training records for SCH deckhands, including Mr. Meyers, but based Citation No.
7657713 on a failure to instruct deckhands on the use of safety lines during barge loading
operations. Tr. I, 88-89. However, I have held above that the Respondent complied with both
30 CFR § 77.1710(g) and 30 CFR § 77.1710(h) through the use of protective barge combings
and life vests. Thus, the Respondent was not obligated to provide training on barge-based safety
lines not required by the Secretary’s regulations.
Additionally, I credit Safety Trainer Hicks detailed testimony regarding new deck hand
training and annual-refresher courses provided to all SCH deck hands. Tr. I, 239, 241-42.

36 FMSHRC Page 2893

Accordingly, I find that the Respondent provided new task training pursuant to 30 CFR 48.27(c)
to all SCH deckhands, including Kevin Meyers, regarding possible hazards and appropriate
safety measures during barge loading activities. Therefore, Citation No. 7657713 is
VACATED.
D. Citation No. 7657714
Inspector Hardison issued Citation No. 7657714 for an alleged violation of 30 CFR §
50.10(a) on September 18, 2012. He alleged within the citation that:
The mine operator failed to contact MSHA in a timely manner
after the occurrence of a fatal accident. The operator shall
immediately contact without delay and within 15 minutes at the
toll-free number, 1-800-746-1553, once the operator knows or
should know that an accident has occurred.
GX 10, 1.
Hardison designated Citation No. 7657714 as a non-contributory violation but noted
that a fatal injury had occurred and alleged that the failure to report the fatality was due to high
negligence. GX 10, 1-2. The Secretary has proposed a regularly assessed penalty of $5,700.00
for Citation No. 7657714. GX 13, 3.
1. Testimony
Inspector Hardison testified that load-out operator Matt Kissiar first issued a radio
lookout for Kevin Meyers at 1:15 a.m. Tr. I, 113. Hardison stated that a Wepfer Marine
deckhand then located Mr. Meyers’ baseball cap in the river at 1:25 a.m. Tr. I, 114. Hardison
testified that the Marshall County Rescue Squad did not find Meyers body until 2:36 a.m.. Tr. I,
116. Hardison stated that as the river was 47 degrees, the Respondent should have contacted
MSHA by 1:40 a.m. fifteen minutes after the Wepfer Marine deckhand located Meyers’ ball cap
in the river. Tr. I, 120. Hardison testified that the Arlington, Virginia MSHA Call Center
report indicated that Respondent first reported Mr. Meyers missing at 2:41:15 a.m. Hardison
stated the Arlington Call Center adjusted this time to reflect the Central Time Zone for the
Calvert City Terminal. Tr. I, 118. However, Hardison acknowledged that the Arlington Call
Center, which is in the eastern time zone, had previously failed to adjust call times to reflect the
time zone where an incident had occurred. Tr. I, 118-119. On cross-examination, Hardison
confirmed that the MSHA Accident Report on Mr. Meyers’ fatality stated that Respondent
contacted the Arlington Call Center at 1:40 a.m. Tr. I, 148-49.
The Respondent did not offer direct testimony on Citation No. 7657714. Tr. I, 207.

36 FMSHRC Page 2894

2. The Cited Standard
The cited standard, 30 CFR § 50.10(a), requires that:
The operator shall immediately contact MSHA at once without
delay and within 15 minutes at the toll-free number, 1–800–746–
1553, once the operator knows or should know that an accident has
occurred involving:
(a) A death of an individual at the mine.
30 CFR 50.10 also requires operators to contact the MSHA hotline within 15 minutes for:
(b) An injury of an individual at the mine which has a
reasonable potential to cause death;
(c) An entrapment of an individual at the mine which has a
reasonable potential to cause death; or
(d) Any other accident.
3. Findings
I first find that Respondent did not have reason to know of a death until 2:36 a.m. Central
Time when Mr. Meyers’ body was recovered unresponsive at the rake of the fixed barge.5 Tr. I,
116. As such, Inspector Hardison’s claim that Respondent failed to contact the MSHA call
center until 2:41 a.m. Central Time does not support a violation of 30 CFR 50.10(a). Tr. I. 119.
However, I do find that the Respondent’s management was nonetheless obligated by 30
CFR 50.10(b) to contact MSHA within 15 minutes of learning that Mr. Meyers had likely fallen
into the river and was exposed to potential serious injuries. 30 CFR 50.10(b); Faith Coal Co.,
19 FMSHRC 1357, 1361-62 (Aug. 1997) (holding that an ALJ may adjudicate issues presented
at hearing in reference to an alternate standard when the Respondent has appropriate notice). As
the Respondent’s counsel cross-examined Inspector Hardison regarding the requirements of both
30 CFR 50.10(a) and 30 CFR 50.10(b), I find that the Respondent had adequate notice of the
duties imposed upon the operator by 30 CFR 50.10(b). Tr. I, 154-55.
The evidence submitted to this court indicates that a Wepfer Marine deckhand retrieved
Mr. Meyers’ baseball hat from the river at approximately 1:25 a.m. central time and SCH

5

Both parties’ testimony indicates that SCH workers had previously fallen into the river
and swam to safety without injury. Tr. I, 76, 247. As such, this court to declines to find that
the Respondent had reason to know of a fatality when Mr. Myers ball cap was spotted in the
river by a Wepfer Marine deckhand at 1:25 a.m..

36 FMSHRC Page 2895

personnel contacted Respondent’s management to report Meyers’ disappearance within minutes.6
Tr. I, 129; Sec’y Ex. 3, 8. As such, I find that Respondent’s management officials learned of
Meyers’ disappearance at approximately 1:30 a.m..7
The MSHA escalation report indicates that SCH personnel first contacted the Arlington
call center at “2:41:15 a.m.,” was disconnected due to technical difficulties, and then
immediately called back to report a missing worker and possible drowning. Tr. I, 118; GX 2, 1.
The escalation report indicates that the caller reported the time of the incident as “1:45” a.m. Id.
The MSHA escalation report does not specify a time zone for any of the times listed on the
report, including the incident time provided by the caller. Id.
The MSHA accident investigation report issued on September 17, 2012 states that, “On
Sunday February 26, 2012 at 1:40 a.m., the mine operator notified the Mine Safety and Health
Administration of the accident.” GX 8, 5. The accident report lists the other citations
contained in this decision but does not list Citation No. 7657714 as one of the enforcement
actions taken in response to the fatality. Thus, Inspector Hardison’s claim that the Respondent
failed to contact the Arlington Call Center until 2:41 a.m. Central Time is contradicted by the
MSHA accident report submitted to this court by the Secretary. Tr. I, 119; GX 8, 5, 9.
At hearing, Inspector Hardison asserted that the Arlington Call Center adjusted the
recorded time of the call to reflect Central Time. Tr. I, 119. However, Hardison did not
provide any support for that belief and acknowledged that the call center had failed to adjust call
times to the appropriate time zone in the past. Id. Indeed, as the escalation report recorded the
call- time down to the second, it appears that the call-time was recorded automatically. Tr. I,
118, GX 2, 1. As the Arlington Call Center is located in the Eastern time zone, I find that this

6

Prior to hearing, the Secretary submitted deposition transcripts from SCH personnel
involved in rescue efforts on February 26, 2012 for this court’s consideration. During
deposition, SCH personnel consistently stated that load out operator Matt Kissiar radioed
supervisor Matt Foley shortly after a Wepfer Marine employee located Myer’s ball cap.
According to their depositions, Foley in turn notified assistant terminal manager Jerry Jones
who first called the MSHA call center and then notified Dan Bailey of Myer’s disappearance.
Sec’y Motion for Summary Judgment: Matt Foley Dep. 27-28; Matt Kissiar Dep. 21-22; Jerry
Jones Dep., 6,-10.
7

All testimony and evidence submitted to this court regarding search efforts at the
loading dock, including Inspector Hardison’s notes, are indicated as approximate times provided
by the Respondent’s personnel after the occurrence of the accident. From this evidence, I have
determined that Respondent’s management was notified that an employee was missing and had
possibly fallen into the river at approximately 1:30 a.m. Central Time.

36 FMSHRC Page 2896

automatic time record indicates that the initial call was received at 2:41:15 Eastern Time. 8
Thus, I find that Respondent’s management contacted MSHA at 2:41 a.m. Eastern Time, or 1:41
a.m. Central Time.
As Respondent’s management learned of Mr. Meyers’ disappearance at approximately
1:30 a.m. Central Time and contacted the MSHA call center at 1:41 a.m. Central Time, I find
that the Respondent contacted the MSHA call center within 15 minutes of a reportable injury per
30 CFR 50.10(b). Thus, the evidence presented at hearing fails to support a violation of either
30 CFR 50.10(a) or (b). Accordingly, Citation No. 7657714 is VACATED.
E. Citation No. 7657716
Inspector Hardison issued Citation No. 7657716 for an alleged violation of 30 CFR §
77.207 on September 18, 2012. He alleged within the citation that:
Illumination was not adequate to provide a safe walkway in work
areas along the perimeter of the barges that were being measured
for draft. The barges being measured were away from the main
lighting system that was focused on the area where coal was being
loaded into the barges. The lack of walkway illumination
contributed to a fatality involving a deckhand on February 26,
2012.
Hardison designated Citation No. 7657716 as a high negligence violation that contributed
to the occurrence of a fatal injury. GX 12, 1. The Secretary has proposed a specially assessed
penalty of $52,500.00 for Citation No. 8436107. GX 13, 3.
1. Testimony
The parties have stipulated that Kevin Meyers was carrying a handheld flash light along
with a drafting stick prior to the accident. Jt. Stip. 18. At hearing, Inspector Hardison stated
that he issued this citation after interviews with workers who had observed lighting conditions at
the loading dock prior to the accident. Tr. I, 96-97. Hardison stated that he determined from
these interviews that permanent lighting was focused on the fixed loading dock itself but barges
in line for loading were not adequately illuminated. Tr. I, 99. Hardison testified that after Mr.
Meyers went missing, Respondent used tugboat lights to search the area around the barges. Tr.
I, 106. Hardison stated that after the accident occurred, Respondent installed additional lighting
and provided workers with cap lights. Tr. I, 102. Inspector Hardison confirmed at hearing that
he did not observe the Respondent’s loading dock at night prior to the installation of additional
lighting. Tr. I, 104.

8

This court finds that confusion regarding the time zone of the accident location on the
part of the Arlington Call Center is not surprising, given that the state of Kentucky occupies both
the Central and Eastern time zones.

36 FMSHRC Page 2897

Respondent’s Chief Operating Officer Rager testified that prior to the accident, the entire
loading dock area was lit by both walkway lighting on the fixed barge and dolphin mounted
stadium type lighting. Tr. I, 203. Rager also stated that Respondent’s loading dock was located
next to an industrial park that was extremely well lit. Tr. I, 205. Rager explained that Mr.
Meyers and other deckhands used their flashlights primarily to check wing tanks and cargo boxes
for water. Tr. I, 204. Rager stated that he maintained an open door policy regarding safety
concerns and had never received any employee complaints regarding lighting at the loading dock
Tr. I, 203. Rager explained that at the time of the accident, light weight MSHA approved cap
lights had only recently become available. Tr. I, 209-10.
Safety Trainer Hicks confirmed that after the accident, Respondent installed additional
lighting at the fixed loading dock that pointed upstream and downstream from the fixed work
barge. Tr. I, 244. Hicks referenced an inspection photo and marked which lights were added
after the accident. 9 Tr. I, 244-45; GX 4, 63. Hicks maintained that the lighting in place prior
to the accident was sufficient for loading operations. Id. However, on cross-examination,
Hicks conceded that prior to the accident it was necessary to use a flashlight to see when drafting
on the outside edge of the barge. Tr. I, 252-53.
2. The Cited Standard
30 CFR § 77.207 mandates that:
Illumination sufficient to provide safe working conditions shall be
provided in and on all surface structures, paths, walkways,
stairways, switch panels, loading and dumping sites, and working
areas.
30 CFR § 77.207.
3. Findings
As SCH deckhands regularly walked the perimeter of upstream barges while drafting, I
find that the Respondent was obligated to provide adequate lighting for in-line barges worked on
by its employees. Tr. I, 198. As mentioned above, Kevin Meyers was carrying a handheld
flash light along with a drafting stick the night of the accident. Jt. Stip., 18. The Commission
has previously held that portable handheld lighting may satisfy 30 CFR § 77.207 when such
lighting is adequate and safe to use for that situation. Capitol Aggregates, 3 FMSHRC 1388,
1390 (June 1981). However, the Commission also clearly stated that reliance on handheld
lighting is inappropriate where use would make work unsafe or fail to provide adequate light.
Id. The Respondent has argued that SCH deckhands could safely walk and work on the barges
with a flashlight in one hand and the drafting stick in another, or alternately lay the flashlight
9

I have not relied upon the addition of new lighting standards after the accident as
evidence of a violation. See FRE 407. Instead, I have relied upon Safety Trainer Hicks
testimony regarding Inspector Hardison’s inspection photo to determine which lights were in
place on February 26, 2012. Tr. 244-45; GX 4, 63.

36 FMSHRC Page 2898

down while drafting. Tr. I, 227-28, 252-53. However, the upstream barges were several
hundred feet long, loosely tied off to the fixed barge and subject to movement. Tr. I, 193,198,
252-53. As such, I find that the handheld flashlight did not provide sufficient illumination for
the deckhands and increased the hazards of working on the barge. Tr. I, 198, 252-53.
Accordingly, I find that Respondent was obligated to provide permanent lighting sufficient to
illuminate the working surfaces of the upstream barges in addition to the areas of the fixed
loading dock.
Inspector Hardison has maintained that interviews with workers immediately after the
accident indicated that in-line barges upstream from the fixed loading dock were not sufficiently
illuminated by permanent lighting. Tr. I, 96-97. The Respondent has objected to Hardison’s
testimony as hearsay evidence not corroborated by his inspection notes. Resp. Br., 10.
However, after reviewing Hardison’s inspection notes, it is apparent that Hardison did record
general concerns regarding the need for additional lighting of barges immediately after the
accident within his February 26, 2012 inspection notes. GX 3, 17. As hearsay evidence is
generally admissible at Commission proceedings, I have considered Hardison’s summary of his
interviews with workers as support for the Secretary’s allegations. REB Enterprises, Inc., 20
FMSHRC 203, 206 (Mar. 1998). Additionally, Hardison’s summary and inspection notes are
corroborated by Safety Trainer Hick’s admission that the outside edges of the barges were not lit
and required the use of a flashlight to see properly. Tr. I, 252-253.
Finally, upon this court’s review, the photos taken by Inspector Hardison on February 26,
2012 and October 23, 2012 indicate that the lighting in place at the time of the accident was
focused on the fixed loading dock and barges immediately alongside the fixed loading dock.10
GX 4, 26-27, 62-63; Tr. I, 244. Accordingly, I find that the evidence submitted supports
Inspector Hardison’s reasonable inference that the upstream barge Mr. Meyers was working on
at the time of his accident was not sufficiently illuminated. Mid-Continet Res. Inc., 6 FMSHRC
1132, 1138 (May 1984). Thus, Citation No. 7657716 is AFFIRMED.
a. Significant and Substantial
A violation is Significant & Substantial (S&S), “if based upon the particular facts
surrounding the violation there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature.” Cement Division, National Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981).
In order to uphold a citation as S&S, the Commission has held that 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

10

The Respondent objected to separate photos contained in GX 4, 28-34 and stated that
these photos were of a different facility. Tr. I, 217-28. However, Safety Trainer Hicks
confirmed that GX 4, 62-63 were photos of Respondent’s fixed loading dock and explained
which lights had been added after the accident. Tr. I, 244-45.

36 FMSHRC Page 2899

that the injury in question will be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC
1, 3-4 (Jan. 1984).
I have already held that the Respondent violated 30 CFR § 77.207 by failing to provide
adequate illumination for the inline barges. Additionally, this violation contributed to the
discrete safety hazard of deckhands not having enough light to recognize and avoid trip, fall, and
caught between hazards. Furthermore, as the large barges varied in configuration and were
subject to movement, the lack of lighting was reasonably likely to cause a trip, fall, or caught
between injury. Tr. I, 193. The failure to light the in-line barges also increased the difficulty of
treating and or rescuing injured persons. Tr. I, 106-07. For all of these reasons, I find that the
lack of illumination was reasonably likely to contribute to a fatal injury.
b. Negligence
The Mine Act defines reckless disregard as conduct which exhibits the absence of the
slightest degree of care, high negligence as actual or constructive knowledge of the violative
condition without mitigating circumstances; moderate negligence as actual or constructive
knowledge of the violative condition with mitigating circumstances; and low negligence as
actual or constructive knowledge of the violative condition with considerable mitigating
circumstances. 30 CFR § 100.3: Table X.
Prior to the accident, Respondent’s deckhands regularly drafted in-line barges upstream
from the fixed loading dock. Tr. I, 198. The Respondent has contended the lights on the fixed
loading dock, dolphin mounted lighting, and ambient lighting from a nearby industrial plant all
made the area very well lit. Tr. I, 203, 205. The Respondent has also emphasized that MSHA
had never issued any citations regarding illumination at the loading dock and had just finished an
annual inspection of the SCH terminal two days before the accident. Resp. Br., 10. However,
it is clear that the Respondent’s own safety trainer was aware that it was necessary to use a
flashlight to see properly at the outside edges of the barges while drafting. Tr. I, 252-253. As
such, the Respondent had actual knowledge that the inline barges were not sufficiently lit by
permanent lighting. Given the inherent dangers of working on a movable barge, I find that the
Respondent has not submitted credible evidence of mitigating circumstances for failing to
provide permanent lighting for workers on upstream barges. Therefore, I find that the violation
was the result of the Respondent’s high negligence.
4. Penalty
It is well established that Commission administrative law judges have the authority to
assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Company, 5
FMSHRC 287, 291 (March 1983). The Act requires that in assessing civil monetary penalties,
the Commission ALJ shall consider the following six statutory penalty criteria:
[1] the operator’s history of previous violations, [2] the appropriateness of
such penalty to the size of the business of the operator charged, [3]
whether the operator was negligent, [4] the effect on the operator’s ability
to continue in business, [5] the gravity of the violation, and [6] the

36 FMSHRC Page 2900

demonstrated good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.
30 U.S.C. 820(I).
For all penalty assessments, the Secretary bears the burden of establishing the proposed
penalty is appropriate based upon the statutory criteria of Section 110(i) of the Act. In re:
Contest of Respirable Dust Sample Alteration Citations, 14 FMSHRC 239, 241 (ALJ Broderick)
(January 1992) (Order). Similarly, for specially assessed penalties in excess of the standard
penalty calculation, the Secretary has the burden of establishing the existence of aggravating
factors to justify such an increase. S&M Construction, Inc., 18 FMSHRC 108, 1052-53 (ALJ
Koutras) (June 1996); Freeport McMoran Morenci, Inc., 35 FMSHRC 172, 181 (ALJ Miller)
(January 2013)
A regular assessment of Citation No. 7657716 would have resulted in 110 penalty points
and a penalty of approximately $6,115.00. GX 12, 1; 30 CFR § 100.3 Table XIV. The
Secretary has asserted that all citations related to fatalities receive consideration for Special
Assessment. Sec’y Br., 32-33. However, the Special Assessment Narrative Form submitted by
the Secretary merely restates negligence and gravity findings that are already accounted for in a
regular assessment, including the occurrence of a fatality. GX 12, 1. As the Secretary has not
submitted specific evidence of aggravating factors necessary to support the specially assessed
penalty, I have performed the following review of the evidence presented based upon the
statutory criteria of Section 110(i).
The Respondent has a low overall violation rate and MSHA had not previously issued
any illumination citations at the SCH terminal loading dock. GX 13, 3; 30 CFR § 100.3 Table
VI. Exhibit A of the Secretary’s Petition indicates that the Calvert City terminal is a small mine
and that the Respondent is a small operator with zero tons of coal produced. Id. However, the
Respondent has testified that it operates at least five different coal handling facilities and it
appears that the Calvert City terminal alone processes approximately twelve million tons of coal
annually. 11 Tr. 184-85. As such, the Respondent appears to be more appropriately considered
a large operator. I have found that Respondent was highly negligent in failing to provide
adequate lighting on the in-line barges. In particular, I have noted that SCH safety personnel
had actual knowledge of the inadequate lighting conditions on in-line barges. Tr. I, 252-53.
The parties have stipulated that the proposed penalty will not affect the Respondent’s ability to
continue in business. Jt. Stip., 4. The failure to adequately illuminate the in-line barges was a
significant and substantial violation that reasonably could have, and apparently did, contribute to
a fatal accident. Tr. I, 106-07. Subsequent to Mr. Meyers’ accident and the issuance of this
citation, the Respondent has provided deckhands with new LED cap lights and installed
upstream and downstream lighting standards. Tr. I, 209-10, 244.
After considering all of these factors, I find that a civil penalty of $25,000.00 is an
appropriate civil penalty for Citation No. 7657716.

11

http://www.sch-ces.com/cct.html

36 FMSHRC Page 2901

IV. ORDER
Based on the findings above Citation Nos. 7657715, 7657713, and 7657714 are
VACATED and Citation No. 7657716 is AFFIRMED. SCH Terminal Company, Inc,
is hereby ORDERED to pay the Secretary of Labor the total sum of $25,000.00 within
30 days of this order.12

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge

Distribution: (First Class U.S. Mail)
Willow E. Fort, U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite 230,
Nashville, TN 37219
Flem Gordon, Gordon Law Office, 121 W. Second Street P.O. Box 1146 Owensboro, KY 42303

12

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 2902

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
TH
721 19 ST., SUITE 443
DENVER, CO 80202-2500
OFFICE: (303) 844-5266/FAX: (303) 844-5268

November 19, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2014-117
A.C. No. 50-01783-336602

v.
DELTA CONCRETE PRODUCTS, INC.,
Respondent.

Mine ID: 50-01783
Mine: Delta Concrete Products Pit

DECISION
Appearances: Sean J. Allen, Office of the Solicitor, U.S. Department of Labor, 1244 Speer
Blvd., Suite 216, Denver, CO 80202 for Petitioner
Robert B. Groseclose, Cook, Schuhmann & Groseclose, 714 Fourth Ave., Suite
200, Fairbanks, AK 99707-0810 for Respondent
Before:

Judge Simonton
I. INTRODUCTION

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration, against Delta Concrete
Products, Inc. at its Delta Junction mine, 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 case
includes nine contested violations with a total proposed penalty of $4,721.00. The parties
presented testimony and documentary evidence at a hearing held in Fairbanks, Alaska on August
12 and 13, 2014. For the reasons that follow, eight of the nine contested citations and orders are
AFFIRMED with two reductions in the negligence level and one citation is VACATED.
Respondent will be ordered to pay $3,807.00 in penalties.
II. BACKGROUND
Delta Concrete Products, Inc., (Respondent) crushes and screens gravel at their mile
267.5 Delta Junction surface pit mine (the “mine”) in Delta Junction, Alaska. The mine is

36 FMSHRC Page 2903

subject to regular inspections by the Mine Safety and Health Administration (“MSHA”) pursuant
to section 103(a) of the Act. 30 U.S.C. § 813(a). The parties stipulated as follows:
A. Respondent was, at all relevant times, the operator at the Delta Concrete
Products Pit, Mine ID: 50-01783.
B. The mine listed above is a mine, as defined in the Mine Act.
C. Respondent is engaged in mining operations in the United States and its
mining operations affect interstate commerce.
D. Respondent is subject to the jurisdiction of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 801-965.
E. The Federal Mine Safety and Health Review Commission has jurisdiction of
this matter under the Mine Act.
F. The citations at issue in this matter were issued on the date indicated.
G. The inspector whose signature appears in block 22 of the citations at issue was
acting in his official capacity as an authorized representative of the United
States Secretary of Labor.
H. The Secretary’s proposed penalties for each citation are listed on Exhibit A of
the penalty assessment filed in this matter and those amounts incorporated are
incorporated by reference herein.
I. The exhibits to be offered by the parties are stipulated to be authentic but no
stipulation is made as to their relevance or as to the truth of the matters
asserted therein.
Secy’s Prehearing Report.
At hearing, the Secretary presented testimony from MSHA Inspector Garrett Frey.
Inspector Frey has worked as an inspector for MSHA for two years. Tr. 30. He has conducted
regular MSHA E01 inspections of approximately one hundred sand and gravel operations and
spends ninety five percent of his work time doing so. Tr. 30-34. Inspector Frey received
classroom and field training at the MSHA Mine Academy in West Virginia. Id. He has also
participated in informal weekly training at staff meetings and journeyman training which covered

36 FMSHRC Page 2904

basic electricity and three-phase electricity systems. Id. Frey earned a Bachelor’s degree in
engineering which included courses on basic electricity and three phase electricity. Tr. 31.
Respondent presented testimony from its President and General Manager, Matthew
Walker and electrician Christopher Morley. Mr. Walker has co-owned Delta Concrete Products
since 2002, previously worked for a general contractor and prior to that, for approximately 18
years, worked for a logging company performing various functions from running the shop,
working on equipment as a field mechanic, operating equipment and cutting down trees. Tr.
298-299. Mr. Morley has owned Morley Electric in Delta, since 2004. Tr. 389. He has been a
journeyman electrician since 1998 and an electrical administrator administrating electrical
installations ensuring they meet code and job requirements since 2004. Tr. 390. Morley is
licensed as a journeyman electrician and electrical administrator with the Alaska Division of
Occupational Licensing and a member of the International Brotherhood of Electrical Workers
1547. Id.
I have organized my findings by individual docket and detailed my final ruling for each
citation within its respective subsection. The Secretary designated the majority of these
contested citations as “Significant & Substantial” (S & S) violations. At hearing, Respondent
contested the factual representations of the testifying MSHA inspector, the underlying legal basis
of the citations as well as the Secretary’s gravity and negligence designations.
As such, I have prepared a Statement of Law outlining the Commission’s instructions
regarding: 1) Burden of Proof; 2) Significant and Substantial violations; 3) Negligence and 4)
Penalty Assessments. I have followed these guidelines for each of the nine contested violations.
The hearing for these nine citations lasted two days and produced a 517 page transcript
with numerous exhibits. The parties also submitted post-hearing briefs articulating their
respective positions on the evidence presented at hearing. I have reviewed all of this evidence at
length. In the interest of brevity, I have not included a general overview summary of the
testimony presented, but rather have cited to the testimony, exhibits, and arguments I found
critical to my ultimate ruling within my analysis.
III. STATEMENT OF LAW
A. Burden of Proof
The Commission has long held, “In an enforcement action before the Commission, the
Secretary bears the burden of proving any alleged violation.” Jim Walter Resources, Inc., 9
FMSHRC 903, 907 (May 1987); Wyoming Fuel Co., 14 FMSHRC 1282, 1294 (August 1992).
The Commission has described the Secretary’s burden as:
The burden of showing something by a “preponderance of the
evidence,” the most common standard in the civil law, simply
requires the trier of fact “to believe that the existence of a fact is
more probable than its nonexistence.”

36 FMSHRC Page 2905

RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000); Garden Creek Pocahontas
Co., 11 FMSHRC 2148, 2152 (Nov. 1989).
The Secretary may establish a violation by inference in certain situations. Garden Creek
Pocahontas Co., 11 FMSHRC 2153. Any such inference, however, must be inherently
reasonable, and there must be a rational connection between the evidentiary facts and the
ultimate fact inferred. Mid-Continent Resources, 6 FMSHRC 1132, 1138. (May 1984).
If the Secretary has established facts supporting the citation, the burden shifts to the
Respondent to rebut the Secretary’s prima facie case. Construction Materials, 23 FMSHRC 321,
327 (March 2001) (ALJ Feldman).
B. Significant and Substantial
A violation is Significant & Substantial (S&S), “if based upon the particular facts
surrounding the violation there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature.” Cement Division, National Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981).
In order to uphold a citation as S&S, the Commission has held that 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).
An S&S designation must be based upon the particular facts surrounding the violation
and must be made in the context of continued normal mining operations. Texasgulf, Inc., 10
FMSHRC 498, 500 (Apr. 1988); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July
1984). The Secretary does not necessarily have to “prove a reasonable likelihood that the
violation itself will cause injury.” Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2365
(Oct. 2011) (holding that failure to maintain emergency equipment was S&S despite low
likelihood of emergency occurring); See also Musser Engineering, Inc. and PBS Coals 32
FMSHRC 1257, 1280-81 (Oct 2010) (PBS).
However, the Commission has recently reiterated that “it is the contribution of a violation
to the cause and effect of a hazard that must be significant and substantial.” Black Beauty Coal,
34 FMSHRC 1733, 1740 (August 2012) (upholding Judge’s S&S determination that a ¼ mile
wide gap in a protective berm created a safety hazard of trucks driving over a steep embankment)
(quoting U.S. Steel Mining Co., 6 FMSHRC 1834, 1836)(Aug 1984).
C. 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

36 FMSHRC Page 2906

that affect the safety and 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 violation, 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.” 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.
D. Penalty Assessment
It is well established that Commission administrative law judges have the authority to
assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Company, 5
FMSHRC 287, 291 (March 1983). The Act requires that in assessing civil monetary penalties,
the Commission ALJ shall consider six statutory penalty criteria:
(1) the operator’s history of previous violations, (2) the appropriateness of
such penalty to the size of the business of the operator charged, (3)
whether the operator was negligent, (4) the effect on the operator’s ability
to continue in business, (5) the gravity of the violation, and (6) the
demonstrated good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.
30 U.S.C. 820 (I).
Although I assess monetary penalties de novo, the Secretary has submitted proposed
penalty amounts for each citation contested at hearing. Following 30 CFR §100.3, the Secretary
submitted regularly assessed penalty amounts based upon point values corresponding to the six
statutory criteria for all citations.
For all penalty assessments, the Secretary bears the burden of establishing the proposed
penalty is appropriate based upon the statutory criteria of Section 110(i) of the Act. In re:
Contest of Respirable Dust Sample Alteration Citations, 14 FMSHRC 239, 241 (ALJ Broderick)
(January 1992) (Order).
In this matter, there appears to be no dispute that Respondent is a small family owned
business. Tr. 301. Respondent has not argued or presented any evidence indicating that any of
the proposed penalties would affect its ability to continue business operations. I have discussed
the violation history, negligence, gravity, and abatement efforts pertaining to each alleged
violation within my findings for each citation.

36 FMSHRC Page 2907

IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
ELECTRICAL VIOLATIONS
Five of the nine citations adjudicated in this case, 8693966, 8693967, 8693968, 8693970
and 8693978 involve electrical violations. For clarity these citations will be addressed together.
It is undisputed that the number of people affected by each violation is one.
Respondent crushes, screens, washes and conveys gravel at their Delta Junction mine
facility. The crushing operation is referred to as the “dry side” and the screening/washing and
conveying process occurs on the “wet side”. Resp. Prehearing Brief. It is undisputed that at the
time of the inspection the dry side was “red tagged” and had been out of service since 2012. Id.
All of the electrical citations in this case were issued for the wet side. At issue is whether the
wet side was operational at the time the citations were issued.
A. MSHA’s Authority to Inspect the Wet Plant Portion of Delta Junction Mine
Respondent argued that the wet side of the mine should not have been subject to the
issuance of citations because it was locked and tagged out and therefore, removed from service.
Respondent’s president and co-owner, Matthew Walker testified it was his understanding that if
a piece of mining equipment was locked and tagged out it could be subject to inspection but not
cited. Tr. 366-367. However, Inspector Garrett Frey testified that he appropriately inspected the
wet plant portion of the mine according to MSHA’s Metal and Nonmetal General Inspection
Handbook procedures. Tr. 283-297. The Metal and Nonmetal General Inspection Handbook
states,
[a]t times, inspectors attempt to conduct regular inspections of mines or mills and
find, on arrival, that it is not operating or not operating at full capacity and some
equipment or machinery is not in operation. In these cases, regardless of whether
the mill or mine is operating or only operating with limited capacity, inspectors
shall conduct a regular inspection…of the non-producing or non-active section of
the mine or mill to assure that potential hazards or risks to miners do not exist.
Tr. 284-286, Sec’y Ex. P-17, Page 35.
Inspector Frey testified that Respondent was continuing to produce material based upon
the mine producing material two weeks prior to the inspection. Tr. 286. The inspector observed
that Respondent could continue to produce material from the wet side of the mine because the
wet plant distribution box was locked out and tagged out only for the purpose of a screen change.
Tr. 36-38; 286-287. Frey confirmed that the mine had not produced material for two weeks prior
to the inspection based on his conversation with Walker and later verified by production reports.
Tr. 36-38. However, the inspector believed that the wet plant could easily be placed back into
service. Tr. 36-38. During the hearing, Inspector Frey testified to observing many electrical and
non-electrical violations on the wet side of the mine that he believed would continue to exist
during continued mining operations. Tr. 286-287.
The operator, Matt Walker testified that the wet side of the mine was “removed from
service” because the intention of the lock and tag was to permanently disable that part of the

36 FMSHRC Page 2908

mine. Tr. 370-371. However, MSHA’s Citation and Order Writing Handbook for Coal Miners
and Metal and Nonmetal Mines states,
[t]he term ‘removed from service’ does not mean that the mine operator stopped
using and parked a piece of equipment (e.g., front-end loader, truck) or a mining
unit (e.g., portable crusher, screening unit) when it could or can be restarted and
easily placed back into service in the same condition which caused issuance of the
original citation(s) or order(s). Rather, “removed from service” refers to the
action(s) taken by the mine operator or contractor to permanently incapacitate or
render inoperable the equipment and eliminate the violation.
Inspector Frey testified that the wet plant was not removed from service because it was
locked and tagged out only for the purpose of a screen change as noted on the distribution box
tag. Tr. 36-38. He further testified that the wet side was not permanently incapacitated or
rendered inoperable because the wet plant could easily be placed back into service in the same
condition after the screens were changed for production purposes. Tr. 288-290; Sec’y Ex. P-2,
Photo 4. The inspector explained that the wet plant could be returned to service by unlocking the
distribution box and energizing the wet plant. Id.
Similarly, Respondent argues that at a minimum the cited electrical violations would
have been corrected during off season maintenance. Resp. Post Hearing Brief, p. 8. However,
this argument presupposes that the wet side of the plant was indeed shut down for the season and
was removed from service. A fact contrary to the evidence relied upon by the inspector noted
above that the wet side was locked and tagged out only for a screen change; thus, indicating
intent or ability to reactivate the wet side as needed for further operation. Nor was there
evidence presented by Respondent that, had no citations been issued, a competent individual
would have conducted an inspection and tagged the electrical issues for repair given
Respondent’s admission that had the citations not been issued the electrical issues would have
continued on during normal mining operations. Tr. 487.
I find that it was appropriate and necessary for Inspector Frey to inspect the wet plant for
safety hazards because (1) MSHA’s Inspection handbook allows inspectors to conduct
inspections at mines that are not operating at full capacity, and (2) the wet side of the Delta
Junction mine was not permanently incapacitated because the lock and tag on the distribution
box was marked only for a screen change and material had been run on the wet side of the mine
two weeks prior to the inspection based on production reports.
B. Citation No. 8693966
Inspector Frey issued Citation No. 8693966 on August 19, 2013 for an alleged violation
of 30 CRF 56.12013. Tr. 39; Sec’y Ex. P-2. The inspector alleged within the citation that:
A mechanically strong, insulated and sealed splice was not used in connecting a
P-136-29-MSHA 6AWG SOOW power cable coming from the wet plant
distribution box in the operator’s tower. The wet plant has operated using this
480 volt three phase electrical connection of only wire nuts and minimal electrical

36 FMSHRC Page 2909

tape approximately 16 inches off the ground immediately in front of the wet plant
distribution box. A miner coming into contact with energized 3 phase electrical
circuits could experience severe shocks, burns, or other fatal electrical injuries
and complications.
Sec’y Ex. 2.
Inspector Frey determined that the violation was reasonably likely to cause an injury, the
resulting injury would be fatal, the violation was S&S, affected one person, and was the result of
Respondent’s high negligence. Sec’y Ex. P-2. The Secretary proposed a penalty of $807.00.
1. Findings
Inspector Frey issued Citation No. 8693966, because he determined that a splice
connected to a wet plant distribution box was in violation of 30 CFR § 56. 12013 which
mandates that:
Permanent splices and repairs made in power cables, including the ground
conductor where provided, shall be:
(a)
Mechanically strong with electrical conductivity as near as possible to that
of the original;
(b)
Insulated to a degree at least equal to that of the original, and sealed to
exclude moisture; and
(c)
Provided with damage protection as near as possible to that of the original,
including good bonding to the outer jacket.
Frey testified that Respondent used wire nuts with electrical tape wrapped around them to
connect a 480-volt power cable coming from the wet plant distribution box in the operator’s
tower. Tr. 44. The inspector’s notes designate that the splice was 16 inches off the floor below
the wet side distribution box and was located in the travel way of the operator’s tower. Sec’y Ex.
P-2. Frey stated that the splice violated the standard because wire nuts are not mechanically
strong with electrical conductivity as near as possible to that of the original. Tr. 43-46. The
inspector also testified that the electrical tape used to wrap around the wire nuts was not bonded
in a way to prevent moisture from infiltrating the splice. Tr. 46. He stated that he observed the
black, green, red, and yellow inner conductors on the splice which demonstrated that the
conductors were not sealed from moisture or adequately bonded to the outer jacket. Tr. 45-47.
He also noted that the filler material sticking out of the cables exposed the splice to moisture that
could potentially wick down the length of the cable and create a potential shock hazard to
miners. Id.
Christopher Morley, Respondent’s electrical witness, testified that the splice was
mechanically strong because the power cords were secure and would not come apart when
pulled. Tr. 419-421. Morley believed that the wire nuts wrapped in electrical tape were sealed

36 FMSHRC Page 2910

to exclude moisture. Id. However, he acknowledged the splice was not protected from damage
as near as possible to the original because it was missing the outer jacket. Tr. 421. The inspector
provided very detailed, specific and compelling testimony regarding the likelihood of moisture
wicking down the cables given the location of the splice in the Conex structure close to an open
door with evidence of rusting and water tracks on the structure walls. Tr. 44-49. Accordingly, I
defer to his reasonable determination and credit his testimony over that of Respondent’s
electrical witness.
As such, I find that Respondent violated 30 CRF 56.12013 by failing to connect a 480volt power cable with use of a splice that was mechanically strong and insulated and bonded to a
degree that would exclude moisture. Accordingly, Citation No. 8693966 is AFFIRMED.
However, for reasons explained below the negligence level will be modified from high to
moderate.
a. Prior Non-Enforcement of Standards at Delta Junction Mine
Matthew Walker, the operator of Delta Concrete, testified that previous MSHA
inspectors had instructed him that there were better ways to splice, but the way Respondent
chose to connect power cables was adequate. Tr. 349. Walker testified that previous MSHA
inspector’s did not inform him to make any changes to the existing electrical splices that were
cited by Inspector Frey. Tr. 350. He argued that because they had not previously been cited for
any electrical splice connections, the Secretary should be estopped from enforcement of citations
dealing with hazardous electrical splices. Tr. 351.
Although such evidence may be weighed when determining the appropriate penalty, the
Commission has generally rejected the prior non-enforcement defense to enforcement of a future
citation. In Secretary v. King Knob Coal Company, Inc., 3 FMSHRC 1417 (1981), the
Commission generally rejected the doctrine of equitable estoppel. However, it also viewed the
erroneous action of the Secretary (mistaken interpretation of the law leading to prior nonenforcement) as a factor which can be considered in mitigation of penalty. The Supreme Court
has held that equitable estoppel generally does not apply against the federal government.
Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 383-386 (1947); Utah Power and Light
Co. v. United States, 243 U.S. 389, 408-411 (1917). The Court has not expressly overruled these
opinions, although in recent years lower federal courts have undermined the Merrill/Utah Power
doctrine by permitting estoppel against the government in some circumstances. See United
States v. Georgia-Pacific Co., 521 F.2d 92, 95-103 (9th Circ. 1970). Absent the Supreme
Court's expressed approval of that decisional trend, we think that fidelity to precedent requires us
to deal conservatively with this area of the law. This restrained approach is buttressed by the
consideration that approving an estoppel defense would be inconsistent with the liability without
fault structure of the 1977 Mine Act. See El Paso Rock Quarries, Inc., 3 FMSHRC 35, 38-39
(1981). Such a defense is really a claim that although a violation occurred, the operator was not
to blame for it. Furthermore, under the 1977 Mine Act, an equitable consideration, such as the
confusion engendered by conflicting MSHA pronouncements, can be appropriately weighed in
determining the appropriate penalty.

36 FMSHRC Page 2911

Accordingly, the doctrine of equitable estoppel will not be applied to the enforcement
actions of the Secretary here. However, the Respondent's evidence in this connection will be
considered in mitigation of penalty. Citing Sec'y of Labor, Mine Safety & Health Admin.
(MSHA), Petitioner, 15 FMSHRC 2549 (Dec. 17, 1993).
2. Gravity
Inspector Frey designated Citation No. 8693966 as an S&S violation. The first element
of the Mathies test requires a violation of a mandatory safety standard, and I have already found
that the failure to connect a 480-volt power cable with use of a mechanically strong and insulated
splice was a violation of 30 CFR § 56. 12013. The second Mathies element is a contribution to a
discrete safety hazard. By failing to remedy the deficient splice that potentially existed since fall
of 2011, Respondent exposed miners to possible severe shocks or burns. Tr. 57, 484.
The third Mathies element requires showing a reasonable likelihood that the hazard
contributed to will result in an injury. The inspector noted that no documentation of workplace
exams identified the defective splice. Tr. 57. Walker testified that the splice probably existed
from the fall of 2011 to August of 2013. Tr. 484. Inspector Frey believed that the hazard existed
when the wet plant was last run and would likely continue to exist during mining operations
because multiple deficient splices were noted over the course of the initial inspection of Delta
Concrete. Tr. 57. Further, Walker acknowledged that had Inspector Frey not cited the condition
it would have continued to exist into the indefinite future. Tr. 487.
The Inspector contends that a fatal electrocution injury was reasonably likely to occur
through one of several different ways. Tr. 49. The inspector testified that a miner could contact
the splice by (1) reaching down to open the door to the tower, (2) brushing against the splice
while turning on or off the distribution box, (3) grabbing items from the storage hooks next to the
splice, or (4) slipping and falling into the splice because the electrical tower did not exclude
moisture. Tr. 49-51. Because the splice was located in the travel way of the operator’s tower,
the potential for an electrocution to a miner was more likely. Tr. 49. I credit the inspector’s
testimony that the deficient splice was obvious and could be seen immediately when entering the
operator’s tower. Tr. 63. Inspector Frey testified that the wet plant distribution box was located
next to a door where you could see daylight which likely exposed the splice to weather
conditions. Tr. 49. Also, Inspector Frey testified no current continuity and resistance test had
been performed since March of 2012, which increased the risk of electrical potential taking the
path of least resistance. Tr. 56.
Respondent argues that the violation was not reasonably likely to lead to a significant
injury because according to electrician Morley, the splice was sufficiently protected against
electrical shock Tr. 457. Morley testified that the wire nuts coupled with the electrical tape
provided protection from moisture. Tr. 405. The operator, Walker, also testified that he has
never had a problem with moisture in the operator’s tower and thus there was no increased risk
of weather exposure to the splice. Tr. 346. After considering both parties testimony, I find that
the state of the splice without adequate protection from the elements and adjacent to a travel way
without a protective outer jacket created a reasonable likelihood of contributing to a potentially
fatal electrical shock. The lack of a continuity and resistance test and the splice’s exposure to

36 FMSHRC Page 2912

weather conditions increased the risk of a serious injury or death to a miner working in the travel
way of the operator’s tower. Tr. 56, 49.
The fourth Mathies element requires showing a reasonable likelihood that the hazard
contributed to will result in an injury. Inspector Frey testified that under the right circumstances
a miner coming into contact with the splice would potentially be fatal because the power cord
was energized up to 480 volts. Tr. 59. The inspector also testified to five separate fatalgrams,
each showing that a 480-volt shock can be fatal. Tr. 60. The inspector stated that the fatalgrams
demonstrate that 480-volt electrical systems are dangerous and need to be installed and
maintained in order to prevent exposure to fatal amounts of electricity. Tr. 61. Although
Respondent argued that the splice was secure and safe to grab while energized, I find that the
testimony of the inspector substantiates that the splice was a danger to miners working in the
travel way of the operator’s tower. Inspector Frey testified that the splice was in close proximity
to the door of the operator’s tower. Tr. 49. Frey noted that there was evidence of water
infiltration in the operator’s tower and that moisture increases the risk a miner operating the wet
plant distribution box will be shocked. Tr. 51. The inspector also testified that there had not
been a continuity and resistance test done that year which increased the undetected risk
electricity would take the path of least resistance. Tr. 56. Therefore, after considering the above
testimony, I find a reasonable likelihood that an electrical shock coming from the 480-volt splice
would cause serious injury or death to a miner.
As the evidence produced at hearing supports all four elements of the Mathies formula, I
find that the Secretary has established that Citation No. 8693966 was an S&S violation.
3. Negligence
Inspector Frey credibly and without equivocation in a straight forward, compelling
manner testified and noted in his citations that throughout the mine there were similar deficient
splices. Tr. 57. The inspector believed that the splices were made this way intentionally and that
it was common practice at Delta Concrete to splice using wire nuts and electric tape. Tr. 57.
Accordingly, he assigned a high negligence level to the violation at issue.
I find that Respondent was aware or should have been aware of the violation, but there
are some mitigating circumstances that must be considered. I credit the inspector’s testimony
that there was no documentation identifying any electrical hazards and that he believed the
hazards would continue to exist during continued mining operations. Tr. 57. He also noted that
the deficient splice was obvious upon entering the travel way of the control tower. Tr. 64.
Operator Walker acknowledged that the deficient splice would have continued to exist at the
mine had Respondent not been cited. Tr. 487.
When determining who was responsible for creating the splices there appeared to be a
fundamental miscommunication or misunderstanding between Inspector Frey and Operator
Walker. I credit Walker’s testimony that his son, Ryan Walker was likely the foreman at the
time the splice was made and was, in fact, the person that made the splice. Tr. 335. The
inspector testified that based on his conversations with Walker, the foreman was not competent
to perform electrical maintenance at the mine. Tr. 64. Frey testified that he considered this

36 FMSHRC Page 2913

statement when determining the severity of the negligence. Tr. 65. Walker denied telling Frey
that the foreman at the time the splice was made was not competent to perform electrical
maintenance. Tr. 483. He went on to explain that his son, Ryan started doing electrical work at
the mine in 2002 and that he worked with a local electrician, Ted Hamilton at the mine until he
had the requisite experience to do the electrical work himself. Tr. 336. When his son finished
working at the mine in approximately 2011 he went on to work with an electrical contractor at
Fort Greely for a couple of years. Tr. 339. Although there is no testimony to suggest whether
the electrician, Hamilton knew or had training in MSHA electrical regulations, I credit Walker’s
testimony that he reasonably believed his son, Ryan, was a competent person to perform the
electrical work. I find that the operator reasonably and in good faith believed a competent
person was performing the electrical maintenance, and credit his testimony based on his personal
observations of Ryan’s work with electrician Hamilton.
For all these reasons, I find that Citation No. 8693966 was the result of moderate rather
than high negligence on the part of Delta Concrete, as they should have been aware of the
violation, but I credit the operator’s testimony that he maintained a good faith belief he
designated a competent person to perform electrical maintenance at the Delta Junction mine.
4. Penalty Assessment
The Secretary has proposed a regularly assessed penalty of $807.00 for this citation.
Respondent’s past history of previous violations revealed that the mine has a total of seven past
violations and no repeated violations of 56. 12013. P-1. Walker testified that Respondent is a
small mom and pop operation. They had 15 current employees at the time the citation was
issued. Tr. 301. Respondent has not argued or presented any evidence indicating that the
proposed penalty would affect its ability to continue business operations. I found a moderate
level of negligence because the operator maintained a good faith belief in his son, who had
previously performed the electrical maintenance, to be a competent person to conduct repairs.
Respondent was negligent because the deficient splice was open and obvious, intentionally
made, undocumented, and by Walker’s own admission would have continued to exist at the mine
had the inspector not issued a citation. Tr. 57, 64, 487. I also found the potential for an
electrocution to a miner was more likely and thus S & S because the defective splice was located
in the travel way of the operator’s tower subject to the risk of exposure to the elements as well as
the fact that the spice had existed since at least late 2011. Tr. 49. Although the citation was
terminated based upon a seasonal closure and shutdown of the mine, Respondent’s electrical
witness, Christopher Morley testified to repairing most of the electrical hazards cited by
Inspector Frey. Tr. 389-396.
After considering all six penalty criteria as well as the Respondent’s reliance on MSHA
pronouncements from prior inspections, I am modifying the Secretary’s proposed penalty of
$807.00 and assess Respondent a civil monetary penalty of $400.00 for Citation No. 8693966.

36 FMSHRC Page 2914

C. Citation No. 8693967
Inspector Frey issued Citation No. 8693967 on August 19, 2013 for an alleged violation
of 30 CRF 56.12008. Tr. 83. He alleged within the citation that:
An energized 120-volt electrical cord passing through a cutout in the metal back wall of
the operator’s station tower is not bushed allowing wear and damage to the outer jacket,
insulation, and eventually inner conductors. A miner in contact with the metal tower
could become a path to ground in the event of a fault leading to shock and burn type
injuries.
Sec’y Ex. 4.
Frey determined that the violation was reasonably likely to cause an injury, the resulting
injury would be lost workdays or restricted duty, the violation was S&S, affected one person, and
was the result of Respondent’s moderate negligence. Sec’y Ex. 4. The Secretary has proposed a
penalty of $100.00.
1. Findings
Inspector Frey issued Citation No. 8693967, because he determined that a 120-volt
electrical cord passing through a cutout in the operator’s tower was not bushed. This was in
violation of 30 CFR § 56.12008 which mandates that:
Power wires and cables shall be insulated adequately where they pass into or out of
electrical compartments. Cables shall enter metal frames of motors, splice boxes, and
electrical compartments only through proper fittings. When insulated wires, other than
cables, pass through metal frames, the holes shall be substantially bushed with insulated
bushings.
The inspector testified that he observed a blue 120-volt electrical cord without a bushing
passing through a cutout of the metal back wall of the operator’s tower. Tr. 85. Frey stated that
the cutout allowed for wear and damage to the cord’s insulation and outer jacket. Tr. 85. He
also testified that there were multiple cords coming out of the operator’s tower and that the blue
power cord hung straight down. Tr. 86. I credit the inspector’s testimony where he testified that
the power cord had some weight on it and that the weather conditions had the ability to degrade
the power cord rapidly. Tr. 86. Also, Frey noted that the cited power cord was still energized at
the time the citation was issued. Tr. 88.
Inspector Frey explained the standard was violated because the power cord entered a
cutout of the operator’s tower that was not protected. Tr. 88. The inspector credibly testified
that the cutout was not protected because it had burrs and sharp edges on the side that would
eventually cut through the power cords insulators and contact the inner conductors. Tr. 88.
Morley, Respondent’s electrical witness acknowledged that the power cord should have been
bushed. Tr. 422. As such, I find that Respondent violated 30 CRF 56.12008 by failing to install
a bushing for a blue 120-volt electrical cord where it passed through a cutout in the operator’s
tower. Citation No. 8693967 is AFFIRMED.

36 FMSHRC Page 2915

2. Gravity
Inspector Frey designated Citation No. 8693967 as an S&S violation. The first element
of the Mathies test requires a violation of a mandatory safety standard, and I have already found
that the failure to install a bushing for the blue 120-volt electrical cord entering a cutout in the
operator’s tower was a violation of 30 CFR § 56. 12008. The second Mathies element is a
contribution to a discrete safety hazard. By failing to provide a bushing for the cutout in the
operator’s tower, Respondent exposed miners to potential shock and burn injuries. Tr. 95.
The third Mathies element requires showing a reasonable likelihood that the hazard
contributed to will result in an injury. The inspector testified that the blue 120-volt power cord
was damaged where it was going in and out of the metal cutout. Tr. 94. Frey testified that at the
time the citation was issued, there was no exposure to the insulation and inner conductor but with
continued use the power cord would be damaged. Tr. 94. With continued use, the power cord
would continue to degrade and eventually the conductors would make contact with the metal
frame of the operator’s tower. Tr. 90. If the inner conductor made contact with the metal frame
while energized, the power cord would either trip the breaker or potentially bleed electric
potential to the area without drawing enough current to trip the breaker. Id. Also, the inspector
stated that the weather exposure of the cutout increased the risk a miner would be exposed to
electrical shock. Tr. 91.
Respondent argued that the violation was not reasonably likely to lead to a significant
injury because there was a breaker system connected with the power cord which would allow the
cord to short. Tr. 408-419. Morley, Respondent’s electrical witness, testified that because the
operator’s tower is grounded, the power cord would trip the breaker if there were a cut in the
jacket. Tr. 409. After considering both parties’ testimony, I defer to and credit the inspector’s
testimony that there is always the potential that the power source will not break and that weather
exposure increases the risk of shock to miners working in the operator’s tower. Tr. 408-411. As
such, I find that the lack of a bushing to protect the power cord entering the cutout made it
reasonably likely that a significant injury would occur.
The fourth Mathies element requires a reasonable likelihood that a resulting injury will be
reasonably serious. Inspector Frey testified that it is unlikely that a shock from a 120-volt power
cord would be fatal, but there was the potential for miners to be shocked or burned. Tr. 94. Frey
believed that a potential injury from touching the power cord while it was energized would likely
lead to lost workdays or restricted duty depending on severity. Tr. 95. He also noted that the
cutout allowed the power cord to be exposed to weather, so there was the potential for moisture
to wick up the cord. Tr. 92. Wicking allows electricity to carry up a cord while it is wet, which
could cause a serious shock or burn injury. Tr. 92. Therefore, considering the above evidence,
there is a reasonable likelihood that an electrical shock coming from 120-volt power cord could
cause serious injury to a miner.
As the evidence produced at hearing supports all four elements of the Mathies formula, I
find that the Secretary has established that Citation No. 8693967 was an S&S violation.

36 FMSHRC Page 2916

3. Negligence
Inspector Frey testified that it was likely that the operator or miner had observed the
hazard based on similar cords having bushings to protect them. Tr. 96. Frey also acknowledged
that at one point the power cord could have had a bushing and worked its way out. Tr. 97. I
credit the inspector’s testimony that the 120-volt power cord was not terribly easy to see because
the cutout was located in the back of the operator’s tower which is elevated from the ground. Tr.
97. He also acknowledged that the violation was not an obvious hazard and not terribly easy to
see. Id.
Frey noted that the ability for the 120-volt power cord to move affected the way he
designated negligence. Tr. 97. He testified that the cord had probably been there for a while
because it exhibited some damage. Tr. 91. The inspector believed that because the power cord
could freely move and was exposed to weather conditions, the cord would likely degrade down
to the insulation and inner conductors. Tr. 97. Also, the inspector testified that because this
power cord was plugged into the wall there was the potential for water to infiltrate the area and
potentially wick up the cord. Tr. 98. I credit Frey’s testimony that the risk of an electrical shock
was increased because the operator’s tower is frequently visited by miners. Tr. 49.
For all these reasons, I find that Citation No. 8693967 was the result of moderate
negligence on the part of Respondent, as they should have been aware of the violation, but I
credit the inspector’s testimony in that the hazard was not obvious. Tr. 98. Therefore, the
negligence designation for Order No. 8693967 is upheld as moderate.
4. Penalty Assessment
The Secretary has proposed a regularly assessed penalty of $100.00. Respondent’s past
history of previous violations revealed that the mine has a total of seven past violations and no
repeated violations of 56.12008. P-1. After considering all six penalty criteria analyzed earlier
in this decision, I uphold the Secretary’s proposed penalty and assess Respondent a civil
monetary penalty of $100.00 for Citation No. 8693967.
D. Citation No. 8693968
Inspector Frey issued Citation No. 8693968 on August 19, 2013 for an alleged violation
of 30 CRF 56.12004. Tr. 107. The inspector alleged within the citation that:
The 480-volt 3 phase power cable energizing the sand stacker belt drive motor has
multiple areas exposed to mechanical damage that have not been protected. The
power cable may have been smashed and is deformed near the tail, has a slice that
removed approximately 1/2” of the outer jacket exposing the cable to water
damage/hazards, and a 1” gash where inner wires are visible and exposed. Inner
conductors may be damaged. The damage is at eye level along a travelway. A
miner traveling adjacent the sand stacker performing maintenance or production

36 FMSHRC Page 2917

duties and contacting a damaged conductor could suffer shock, burn, and other
fatal electrical type injuries and complications.
Sec’y Ex. 5.
Frey determined that the violation was reasonably likely to cause an injury, the resulting
injury would be fatal, the violation was S&S, affected one person, and was the result of Delta
Concrete’s high negligence. Sec’y Ex. 5. The Secretary has proposed a penalty of $807.00.
1. Findings
Inspector Frey issued Citation No. 8693968, because he determined that a 480-volt 3
phase power cable had multiple exposed areas of unprotected damage. This was a violation of
30 CFR § 56. 12004 which mandates that:
Electrical conductors shall be of a sufficient size and current-carrying capacity to
ensure that a rise in temperature resulting from normal operations will not damage
the insulating materials. Electrical conductors exposed to mechanical damage
shall be protected.
Frey testified that he observed multiple areas of mechanical damage on a 480-volt power
cable that energized a sand stacker belt drive. Tr. 109. The power cord was feeding the drive
motor on the sand stacker and Frey observed multiple areas where the cord was cut, gashed, and
smashed. Tr. 109-113, Sec’y Ex. P-5, Photos 1-5. In one location the inspector observed a halfinch gash where the inner wires were visible and exposed. Tr. 109. The inspector believed that
with continued mining operation the damaged areas would wear down to the inner conductors
and expose miners to electrical shock. Tr. 111. Both Mr. Walker and Mr. Morley acknowledged
that the cited cable was damaged in the locations cited by Inspector Frey. Tr. 423-426. 487-489.
According to the testimony of the inspector, the standard was violated because the power
cord was not protected against mechanical damage in multiple places. Tr. 110. I credit the
inspector’s testimony where he stated he observed multiple areas of a 480-volt 3 phase power
cable that was cut, gashed, and smashed. Tr. 110. As such, I find that Delta Concrete violated
30 CRF 56.12004 by failing to repair a 480-volt 3 phase power cable which had multiple areas
that were exposed to mechanical damage. Citation No. 8693968 is AFFIRMED.
2. Gravity
Inspector Frey designated Citation No. 8693968 as an S&S violation. The first element
of the Mathies test requires a violation of a mandatory safety standard, and I have already found
that the failure to repair a 480-volt 3 phase power cable that was exposed to mechanical damage
was a violation of 30 CFR § 56. 12004. The second Mathies element is a contribution to a
discrete safety hazard. By failing to repair multiple areas of a power cable, Respondent exposed
miners to potentially fatal shock and burn injuries. Tr. 111.
The third Mathies element requires showing a reasonable likelihood that the hazard
contributed to will result in an injury. Inspector Frey testified that he observed multiple areas
where a 480-volt power cord had cuts, gashes, and smash marks. Tr. 109. In one area of the

36 FMSHRC Page 2918

power cord, he observed a one-inch gash where the inner wires were visible and exposed. Tr.
109. The inspector also testified that areas where gash marks were observed also contained
moisture, dirt, and sections where the entire outer jacket was missing. Tr. 110-111. Frey noted
that he observed a part of the power cord that was mashed and deformed. Tr. 109. He also
believed that the damage to the 480-volt power cord occurred over multiple instances and not
just one. Tr. 110-111. The inspector testified that the damage to the power cord likely occurred
over the course of time and if the hazards were recognized they were not fixed or documented.
Tr. 112. He believed that the dirt and moisture trapped in the gashed areas of the power cord
would, over time, degrade the insulation and further expose the inner conductors. Tr. 113. The
expose to moisture and dirt increased the likelihood a miner would be exposed to an electrical
injury. Tr. 114. Also, Frey noted that the power cable travels along the side of the sand stacker
at eye level and was immediately adjacent to a travelway. Tr. 117. He concluded that a miner
performing maintenance, repair, or workplace exams could potentially be exposed to the
different hazards of mechanical damage. Tr. 117.
Respondent argued that the violation was not reasonably likely to lead to a significant
injury because the wet side of the Delta Junction mine was locked and tagged out and no energy
could get to the cable. Tr. 361. Walker, the operator of the mine, testified that no bare wires
were exposed on the 480-volt 3 phase power cable. Tr. 362. He testified that the gashed parts of
the power cord did not show bare wire, but actually a fiber-type filler that was between the outer
jacket and the conductors. Tr. 363. Thus, the operator believed that the damage to the outer
jacket of the 480-volt power cable would not cause a miner to be electrocuted. Tr. 364.
Respondent also argued that maintenance, like greasing, occurs only when the wet side is nonoperational and therefore the exposure to an energized power cord is decreased. Tr. 125. After
considering both parties testimony, I find that the cuts, gashes, and smash marks in the 480-volt
3 phase power cord made it reasonably likely that a significant injury would occur to a miner. I
defer to and credit the inspector’s straight forward and detailed testimony that an injury was
reasonably likely to occur because the power cord was next to a travelway where maintenance is
performed by miners. Tr. 106, 122-123.
The fourth Mathies element requires a reasonable likelihood that a resulting injury will be
reasonably serious. Respondent argued that a miner exposed to the damaged part of the power
cord would not be fatal because the primary insulation was still present and that part of the wet
plant was locked and tagged out. Tr. 361. The inspector testified that the multiple hazards in the
480-volt power cord made it reasonably likely a miner traveling in the area could be fatally
electrocuted if they were to brush up against the exposed hazards. Tr. 113-114,117. Inspector
Frey stated that the fatalgrams referenced in Citation No. 8693966 also would apply for this
citation as well because a miner coming into contact with a 480-volt power cord would cause
serious injury or death. Tr. 121
As the evidence produced at hearing supports all four elements of the Mathies formula, I
find that the Secretary has established that Citation No. 8693968 was an S&S violation.
3. Negligence
Inspector Frey testified that the multiple hazards he observed on a 480-volt power cable
were obvious when he walked along the travelway. Tr. 122-123. The inspector believed that the

36 FMSHRC Page 2919

operator should have known about the multiple hazards because it was an area where adequate
workplace examinations should have been taking place and a frequent area where miners travel.
Tr. 122-125. Frey also noted that the mine had no documentation that recognized the electrical
hazards and there was no evidence of repair to the 480-volt power cord. Tr. 122.
According to the inspector, an adequate workplace examination did not occur based on
the number of hazards identified on the 480-volt power cable. Tr. 123. I credit the inspector’s
testimony that he believed the electrical damage existed since the last workplace examination of
the travelway. Tr. 123. Inspector Frey also stated that Respondent had been operational two
weeks prior to the issuance of the citation and in his view there were no mitigating
circumstances. Tr. 114-115, 123.
Finally, the inspector factored into account that the operator told him that the foreman
performing workplace exams or electrical maintenance was not competent. Tr. 122. Walker
testified to the contrary, and avowed that he never told the inspector the foreman was not
competent and clarified that the foreman in question was actually his son Ryan Walker who was
the last one that had performed electrical work at the mine prior to the inspection. Tr. 335. It is
important to note Ryan Walker left Respondent’s employment at the mine in late 2011 or early
2012, no less than a year prior to the inspection at issue. While I found Operator Walker’s
reliance on his son’s competence in performing electrical work a mitigating factor in Citation
8693966 above no such mitigating factor exists here because the damage to the 480-volt power
cable was open and obvious to anyone that would be travelling along the pathway. Respondent
should have noticed the damage and taken immediate action to have the cable repaired. The fact
that they failed to do so leads me to conclude that the inspector’s high negligence level
designation is appropriate.
For all these reasons, I find that Citation No. 8693968 was the result of high negligence.
Although the inspector relied partially on his conversation with the operator about the foreman’s
competency when determining negligence, I find that this testimony is a non-factor for the high
negligence designation. I credit the inspector’s testimony that the hazard was obvious because it
was in a travelway where miners frequently pass. And, adequate workplace inspections would
have allowed the electrical hazards to be observed, noted, and repaired. Therefore, the
negligence designation for Citation No. 8693968 is upheld at high.
4. Penalty Assessment
The Secretary has proposed a regularly assessed penalty of $807.00. Respondent’s past
history of previous violations revealed that the mine has a total of seven past violations and no
repeated violations of 56. 12004. Sec’y Ex. P-1. I upheld the high negligence designation for
this citation because the inspector testified that he observed multiple electrical hazards along a
480-volt power cable that was immediately adjacent to a travel way where miners travel and
perform maintenance. Tr. 122-125. Although the operator, in good faith, believed a competent
person was performing the electrical maintenance, the multiple electrical hazards on the 480-volt
power cable demonstrates that adequate workplace inspections were not conducted. Even
though the citation was terminated based upon a seasonal closure and shutdown of the mine,

36 FMSHRC Page 2920

Christopher Morley testified to repairing most of the electrical hazards cited by Inspector Frey in
this docket. Tr. 389-396.
After considering all six penalty criteria analyzed earlier in this decision, I uphold the
Secretary’s proposed penalty and assess Respondent a civil monetary penalty of $807.00 for
Citation No. 8693968.
E. Citation No. 8693970
Inspector Frey issued Citation No. 8693970 on August 19, 2013 for an alleged violation
of 30 CRF 56. 12013. Tr. 155. The inspector alleged within the citation that:
A mechanically strong, insulated and sealed splice was not used in connecting the
480-volt 3 phase well pump to cable that powers it. Additionally the ground wire
was not connected and hanging in the open. A miner coming into contact with
energized 3 phase electrical circuits could experience severe shocks, burns, or
other fatal electrical injuries and complications.
Standard 56. 12013 was cited 1 time in two years at mine 5001783 (1 to the
operator, 0 to a contractor).
Sec’y Ex. 8.
Frey determined that the violation was reasonably likely to cause an injury, the resulting
injury would be fatal, the violation was S&S, affected one person, and was the result of
Respondent’s high negligence. Sec’y Ex. 8. The Secretary has proposed a penalty of $807.00.
1. Findings
Inspector Frey issued Citation No. 8693970, because he determined that a splice
connected to a 480-volt 3 phase well pump was in violation of 30 CFR § 56. 12013 which
mandates that:
Permanent splices and repairs made in power cables, including the ground
conductor where provided, shall be:
(a)
Mechanically strong with electrical conductivity as near as possible to that
of the original;
(b)
Insulated to a degree at least equal to that of the original, and sealed to
exclude moisture; and
(c)
Provided with damage protection as near as possible to that of the original,
including good bonding to the outer jacket.

36 FMSHRC Page 2921

Frey testified that Respondent used a splice to connect a 480-volt 3 phase well pump to a
power cord. Tr. 156. The inspector stated that the splice connected the two cords with the use of
wire nuts and electric tape. Tr. 156-157. Frey testified that the green grounding wire was not
connected to anything and should have been connected to a grounding system. Tr. 157. The
inspector testified that the black, green, red, and yellow inner conductors wrapped around the
well pump were exposed to mechanical damage. Tr. 158. The inner conductors were not
protected by housing and there was no outer jacket sheath. Tr. 157. The inspector stated that the
splice violated the standard because wire nuts are not mechanically strong with electrical
conductivity as near as possible to that of the original. Tr. 156, 158. Also, the inspector testified
that the splice was not bonded in a way to prevent moisture from infiltrating the inner
conductors. Tr. 160.
Frey believed that moisture could infiltrate the splice because it was not encased in an
outer jacket, outdoor rated housing, or other conduit. Tr. 159-160. I defer to and credit the
inspector’s testimony that the grounding wire was not properly grounded and that the splice was
exposed to mechanical damage. Respondent attempted to address this violation through
testimony from electrical witness Morley. However, I found his testimony confusing and
focused primarily on the grounding issue stating that the pump was grounded at other points
while acknowledging that the green grounding wire was not connected. Tr. 397. Furthermore,
Morley acknowledged there was no outer jacket to which the splice could be bonded. Tr. 427.
As such, I find that Respondent violated 30 CRF 56.12013 by failing to connect a 480-volt
power cable that was mechanically strong and insulated to a degree that would exclude moisture.
Citation No. 8693970 is AFFIRMED. However, for reasons explained below the negligence
level will be modified from high to moderate.
2. Gravity
Inspector Frey designated Citation No. 8693970 as an S&S violation. The first element
of the Mathies test requires a violation of a mandatory safety standard, and I have already found
that the failure to connect a 480-volt 3 phase well pump to a power cable with use of a
mechanically strong and insulated splice was a violation of 30 CFR § 56. 12013. The second
Mathies element is a contribution to a discrete safety hazard. By failing to remedy the deficient
splice that potentially existed since the fall of 2011, Respondent exposed miners to possible
severe shocks, burns, or other fatal electrical injuries. Tr. 57, 353.
The third Mathies element requires showing a reasonable likelihood that the hazard
contributed to will result in an injury. Inspector Frey testified that the wire nuts and electric tape
used to splice the well pump were not mechanically strong and not bonded or sealed to exclude
moisture. Tr. 156. Also, the inspector stated that the splice was not insulted equal to its original
condition and was not bonded to the cable outer jacket to prevent moisture. Tr. 156-157. Frey
testified that water can easily infiltrate the splice through the wire nuts where there are exposed
conductors. Tr. 160. Furthermore, Frey noted that the green grounding wire was not attached,
and that a continuity and resistance test had not been performed during the year the citation was
issued. Tr. 157. The inspector believed that the lack of a grounded wire with no continuity and
resistance test made it more likely that if a miner touched the splice they would be the least
resistance to ground where electrocution could be fatal. Tr. 156-160. Additionally, the inspector

36 FMSHRC Page 2922

testified that the splice was an obvious hazard that was in plain sight when he approached the
water pump. Tr. 158. Frey stated that the splice was adjacent to a travelway and surge tunnel
used by miners. Tr. 162-163. Thus, miners were regularly exposed to the deficient splice. Id.
Inspector Frey believed that the hazard existed when the wet plant was last run and would likely
continue to exist during mining operations because multiple deficient splices were noted over the
course of the initial inspection of the mine. Tr. 57. The operator acknowledged that the splice
had existed in its cited condition since Ryan Walker installed the splice more than a year before
the citation was issued. Tr. 483-484. Finally, Inspector Frey testified that no work place
examinations noted the inadequate splices throughout the mine. Tr. 168.
Respondent argues that the violation was not reasonably likely to lead to a significant
injury because according to Morley, the splice was sufficiently protected against electrical shock
Tr. 457. He testified that the wire nuts coupled with the electrical tape provided a moisture
resistant connection. Tr. 405. Also, Morley stated that although the green wire was not
grounded, there was a ground bar on the water pipe. Tr. 397. He believed that the generator that
powers the 480-volt 3 phase well pump would trip if the splice’s inner conductors were exposed
to moisture. Tr. 400. Morley also acknowledged that the splice was not protected from damage
as near as possible to the original and that he would have enclosed the splice in a raceway or
enclosure. Tr. 426-427. I defer to and credit the inspector’s straight forward, detailed testimony
that it was reasonably likely a significant injury would occur because the deficient splice was an
electrical hazard and was in a location frequently traveled by miners.
The fourth Mathies element requires a reasonable likelihood that a resulting injury will be
reasonably serious. Inspector Frey testified that under the right circumstances a miner coming
into contact with the splice would be potentially fatal because the power cord was 480 volts. Tr.
59. The inspector also testified to five separate fatalgrams, each showing that a 480-volt shock
can be fatal. Tr. 60. The inspector stated that the fatalgrams indicate that 480-volt electrical
systems are dangerous and need to be installed and maintained in order to prevent exposure to
fatal amounts of electricity. Tr. 61. Morley, Respondent’s electrical witness acknowledged that
contact with a 480-volt power cord could be fatal. Tr. 421. Therefore, considering the above
evidence there is a reasonable likelihood that an electrical shock coming from the splice would
cause serious injury or death to a miner.
As the evidence produced at hearing supports all four elements of the Mathies formula, I
find that the Secretary has established that Citation No. 8693970 was an S&S violation.
3. Negligence
Inspector Frey testified that the splice connecting a 480-volt 3 phase well pump to a
power cord was immediately obvious when walking past the well pump. Tr. 167-168. Frey
credibly testified and noted that there were multiple deficient splices throughout the mine that
were similar to the cited splice. Tr. 57. He believed that the splices were made this way
intentionally and that it was common practice at the Delta Junction mine to splice using wire nuts
and electric tape. Tr. 57. I find that Respondent was aware or should have been aware of the
violation based on the number of deficient splices noted by inspector Frey. Tr. 57. I credit the
inspector’s testimony when he testified that there was no documentation identifying any

36 FMSHRC Page 2923

electrical hazards and that he believed the hazard would continue to exist during continued
mining operations. Tr. 164-168. When Walker, the operator, was asked whether the deficient
splices would have continued to exist at the mine had the operator not been cited, he
acknowledged that they would have continued to exist. Tr. 487.
As I noted above in reference to Citation 8693966 I credit the operator’s testimony that
his son, Ryan Walker, was likely the foreman at the time when the splices were made. Tr. 335.
The inspector believed that based on his conversations with the operator, the foreman was not
competent to perform electrical maintenance at the mine. Tr. 64. The analysis for this citation
mirrors that of Citation 893966. As such, I find that the operator reasonably and in good faith
believed a competent person was performing the electrical maintenance, and credit his testimony
based on his personal observations of Ryan’s work with electrician Hamilton. Walker’s
reasonable belief is a mitigating factor.
For all these reasons, I find that Citation No. 8693970 was the result of moderate
negligence on the part of Respondent, as they should have been aware of the violation, but I
credited the operator’s testimony that he made a good faith effort to assign a competent person to
perform electrical maintenance at the mine which constitutes a mitigating circumstance.
4. Penalty Assessment
The Secretary has proposed a regularly assessed penalty of $807.00. Respondent’s past
history of previous violations revealed that the mine has a total of seven past violations and no
repeated violations of 56. 12004. P-1. Walker, the operator testified that Respondent was a
small mom and pop operation with 15 current employees at the time the citation was issued. Tr.
301. Respondent has not argued or presented any evidence indicating that the proposed penalty
would affect its ability to continue business operations.
Although the inspector designated the citation as high negligence, I found that the mine
was moderately negligent because the operator, in good faith, believed a competent person was
performing the electrical maintenance. Respondent was negligent because the inspector testified
that the deficient splice located on the water pump was obvious, not documented, and would
have likely continued to exist at the mine based on the number of electrical hazards cited as well
as Walker’s admission that the violation would have continued to exist had the inspector not
issued a citation. Tr. 57, 64, 164-168, 487. Much like the other electrical citations, there was a
reasonable likelihood that a resulting injury would be reasonably serious because a miner coming
into contact with the splice could have easily been killed because the power cord was 480 volts.
Tr. 59. Although the citation was terminated based upon a seasonal closure and shutdown of the
mine, Christopher Morley testified to repairing most of the electrical hazards cited by Inspector
Frey. Tr. 389-396.
After considering all six penalty criteria as analyzed earlier in this decision as well as
Respondent’s reliance on MSHA’s pronouncements from prior inspections, I am modifying the
Secretary’s proposed penalty of $807.00 and assess Respondent a civil monetary penalty of
$400.00 for Citation No. 8693970.

36 FMSHRC Page 2924

F. Citation No. 8693978
Inspector Frey issued Citation No. 8693978 on August 23, 2013 for an alleged violation
of 30 CRF 56.12028. Tr. 255. The inspector alleged within the citation that:
Records of ground continuity testing for Delta Concrete were unable to be
reviewed upon request and could not be verified. Grounding systems are in place
and have been tested in the past. The last inspector noted that ground testing had
been performed in March of 2012. Ground system testing would have identified
that the well pump ground wire was not connected as noted during this inspection.
A miner that became a path to ground for a three phase 480-volt electrical system
as is used at this mine could suffer shocks, burns, and other fatal electrical injuries
and complications.
Sec’y Ex. P-12.
Frey determined that the violation was reasonably likely to cause an injury, the resulting
injury would be fatal, the violation was S&S, affected one person, and was the result of
Respondent’s high negligence. Sec’y Ex. 12. The Secretary has proposed a penalty of $807.00.
1. Findings
Inspector Frey issued Citation No. 8693978, because he determined that Respondent had
not performed a ground continuity test annually and the operator was unable to provide test
records upon request in violation of 30 CFR § 56.12028 which mandates that:
Continuity and resistance of grounding systems shall be tested immediately after
installation, repair, and modification; and annually thereafter. A record of the
resistance measured during the most recent tests shall be made available on a request
by the Secretary or his duly authorized representative.
Frey testified that he issued Citation No. 8693978 because Respondent failed to produce
a record of a ground continuity test upon request. Tr. 256. The inspector testified that he was
able to determine that the last ground continuity test was done in March of 2012 by referencing a
previous inspector's notes. The citation was issued on August 23, 2013, which indicates that a
ground continuity test had not been performed annually. Tr. 271. Frey stated that he did not
personally observe any records of testing. Tr. 260. Additionally, the electrical hazards found at
Delta Concrete provided further evidence that a ground continuity test had not been performed
annually. The inspector believed this to be the case because the well pump ground wire was not
attached to anything and a ground continuity test would have recognized this hazard. Tr. 260.
Frey also stated that the other electrical hazards cited at Delta Concrete gave him reason to
believe that a ground continuity test had not been performed at all within the last year. Tr. 264.
I credit the inspector’s testimony that Respondent failed to produce a record of a ground
continuity test upon request. Also, I credit Frey’s testimony that a continuity and resistance test
was last conducted March of 2012, which is more than one year before the citation was issued on

36 FMSHRC Page 2925

August 23, 2013. As such, I find that Respondent violated 30 CRF 56.12028 because
Respondent failed to produce any records indicating a continuity and resistance test had been
performed and that a test had not taken place annually since March of 2012. Citation No.
8693978 is AFFIRMED.
2. Gravity
Inspector Frey designated Citation No. 8693978 as an S&S violation. The first element
of the Mathies test requires a violation of a mandatory safety standard, and I have already found
that the failure to provide prior records of a continuity and resistance test and not performing a
test annually since March of 2012 was in violation of 30 CFR § 56.12028. The second Mathies
element is a contribution to a discrete safety hazard. By failing to conduct a continuity and
resistance test it is reasonably likely that a miner coming into contact with the energized wire or
exposed moisture will become the lowest resistance to ground and be electrocuted. Tr. 59-61.
The third Mathies element requires showing a reasonable likelihood that the hazard
contributed to will result in an injury. Inspector Frey testified that he had no reason to believe
that a ground continuity and resistance test had been performed based on the electrical hazards
found at Delta Concrete. Tr. 261. Frey stated that he was particularly concerned about the nongrounded well pump splice that would not provide a low-resistance path to ground. Tr. 262.
Had a continuity and resistance test been performed it would have detected the electrical hazards
present at Delta Concrete. Tr. 263. Also, he stated that most of the hazards cited were open and
obvious. Tr. 264-265. Frey testified that it is likely the operator would have continued to
operate the wet plant without a continuity and resistance test being performed and the various
electrical hazards would continue to exist. Tr. 267.
The fourth Mathies element requires a reasonable likelihood that a resulting injury will be
reasonably serious. Inspector Frey testified that under the right circumstances a miner coming
into contact with a defective splice or power cord would be potentially fatal because most of the
defective hazards had electrical capacity up to 480 volts. Tr. 59. The inspector also testified to
five separate fatalgrams, each showing that a 480-volt shock can be fatal. Tr. 60. The operator,
Walker, testified that he believed the lack of a continuity and resistance test would not be fatal
because the mine was not in production. Tr. 461. I have already addressed Respondent’s
argument regarding Respondent’s operational defense earlier in this decision. Accordingly, I
credit the inspector’s testimony that it is reasonably likely that contact with 480 volts would be
fatal. Tr. 265, P-3.
As the evidence produced at hearing supports all four elements of the Mathies formula, I
find that the Secretary has established that Citation No. 8693978 was an S&S violation.
3. Negligence
The inspector testified that the operator conducted continuity resistance tests in the past
and knew the tests had to be completed annually. Tr. 266. Frey also testified that the operator
did not meet the standard in providing records of past or present continuity and resistance tests.
Tr. 266. The inspector stated that the numerous hazards present during the inspection gave him

36 FMSHRC Page 2926

reason to believe that a test had not been performed within the last year. Tr. 266. Walker, the
operator, also acknowledged that he did not conduct a continuity and resistance test because he
was waiting a couple months so he could have more time to conduct the subsequent annual test
at a later date. Tr. 459-461.
For all these reasons, I find that Citation No. 8693978 was the result of high negligence
on the part of Delta Concrete, as they should have been aware of the violation because the
operator knew a continuity and resistance test had to be performed annually and that
documentation of previous tests must be available at MSHA’s request. I credit the inspector’s
testimony that no continuity and resistance test had been performed since March 2012 and that
no documentation of previous tests was provided to Inspector Frey. Tr. 260-267. Therefore, the
negligence designation for Citation No. 8693978 is upheld as high.
4. Penalty Assessment
The Secretary has proposed a regularly assessed penalty of $807.00. Respondent’s past
history of previous violations revealed that the mine has a total of seven past violations and no
repeated violations of 56. 12028. Sec’y Ex. P-1. After considering all six penalty criteria as
explained more fully earlier in this decision, I uphold the Secretary’s proposed penalty and
assess Respondent a civil monetary penalty of $807.00 for Citation No. 8693978.
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
OTHER VIOLATIONS
A. Citation No. 8693969
Inspector Frey issued Citation No. 8693969 on August 19, 2013 for an alleged violation
of 30 CRF 56.11027. Tr. 134. The inspector alleged within the citation that:
The handrail on the washplant operator’s station has not been maintained. The
corner post on the right side of the ladder landing has popped welds and flaps.
This corner serves both as a fixed point for the swing gate atop the landing and as
the hand hold extending above the working platform when climbing the ladder for
access. The working platform is 6 feet from the washplant deck and a fall to the
ground would be 20 feet. This area is subject to weather and operational
conditions that can make it wet and slippery. A miner falling from this height
while accessing or atop the working platform could suffer fatal injuries and
complications.
Sec’y Ex. 6.
Frey determined that the violation was reasonably likely to cause an injury, the resulting
injury would be fatal, the violation was S&S, affected one person, and was the result of
Respondent’s moderate negligence. Sec’y Ex. 5. The Secretary has proposed a specially
assessed penalty of $243.00.

36 FMSHRC Page 2927

1. Findings
Inspector Frey issued Citation No. 8693969, because he determined that the southwest
handrail on the washplant operator’s station had not been maintained in good condition and was
in violation of 30 CFR § 56.11027 which mandates that:
Scaffolds and working platforms shall be of substantial construction and provided
with handrails and maintained in good condition. Floor boards shall be laid
properly and the scaffolds and working platforms shall not be overloaded.
Working platforms shall be provided with toeboards when necessary.
Frey testified that the cited handrail was located on the southwest side of the washplant
operator’s station. Tr. 136, 149. He observed a broken bottom corner post weld that caused the
handrail to freely move. Tr. 136. The loose handrail was next to the access ladder, so the
handrail would be a point of contact for a miner climbing up the ladder to the operator’s station.
Tr. 137. The operator’s station was six feet down from the wash plant deck and 20 feet from the
ground. Tr. 136. Also, the inspector testified that the weld appeared to have popped due to
continued vibration. Tr. 136. Walker, the operator, acknowledged that the handrail had a broken
bottom corner weld. Tr. 497-498.
According to the testimony of the inspector, the standard was violated because the
handrail was not maintained in good condition. Tr. 137. I credit the inspector’s testimony where
he testified that the broken right corner weld allowed the vertical bar to move up and down and
was no longer connected to anything. Tr. 137. He also observed marks on the metal where it
was rubbing at the bottom of the railing. Tr. 136. Frey stated that the vertical end piece was
hanging below the angle iron where it used to be welded. Tr. 137. As such, I find that
Respondent violated 30 CRF 56.11027 by failing to maintain a working platform in good
condition. Citation No. 8693969 is AFFIRMED.
2. Gravity
Inspector Frey designated Citation No. 8693969 as an S&S violation. The first element
of the Mathies test requires a violation of a mandatory safety standard, and I have already found
that the failure to maintain a working platform was a violation of 30 CFR § 56. 11027. The
second Mathies element is a contribution to a discrete safety hazard. By failing to repair the
handrail on the wash plant operator’s station, Respondent exposed miners to a potential fall
hazard. Tr. 138.
The third Mathies element requires showing a reasonable likelihood that the hazard
contributed to will result in an injury. Both parties testified that the wash plant operator’s station
is a working platform for miners to operate the wet side screen deck. Tr. 140, 498. The
inspector noted that the markings from the vertical bar hitting the angle iron indicated that the
wet side screen deck had been operational without the hazard being corrected. Tr. 141.
According to the inspector, this indicated that the plant was running at some point after it was
broken. Tr. 141. The inspector believed because the handrail was able to freely move, a miner
could not safely use it for support while climbing up the ladder or as point of contact without the

36 FMSHRC Page 2928

potential of falling. Tr. 137-138, 143. Walker, the operator testified that a miner must go up
onto the operator’s tower to operate the wet plant. Tr. 498. The inspector believed the broken
handrail would continue to exist during continued mining operations because the defective
handrail should have been noted in a workplace examination but was never documented. Tr.
141. Frey also testified that the washplant operator’s station was exposed to weather conditions
which increased the likelihood of a miner falling. Tr. 154.
The fourth Mathies element requires a reasonable likelihood that a resulting injury will be
reasonably serious. Inspector Frey testified that if a miner were to fall from the top of the wash
plant operator’s station, the fall would either be six feet down to the washplant deck or 20 feet
down to the ground. Tr. 136. The inspector believed that either fall would be potentially fatal.
Tr. 153-154. Respondent argued that it would be very unlikely that a miner could fall past the
wash plant deck to the ground and that a fall to the wash plant deck would not be fatal. Tr. 466.
The inspector testified that if a miner were climbing the ladder it would be more likely that a
miner would miss the wash plant deck and fall to the ground. Tr. 138, 153-154. Inspector Frey
also testified about two fatalgrams, which showed that miners can be fatally injured from falls of
nine feet and sixteen feet. Tr. 144-145. I defer to and credit Frey’s straight forward and detailed
testimony that there is a reasonable likelihood a resulting injury would be reasonably serious if a
miner were to fall from the wash plant operator’s station to the ground or wash plant deck.
As the evidence produced at hearing supports all four elements of the Mathies formula, I
find that the Secretary has established that Citation No. 8693969 was an S&S violation.
3. Negligence
Frey believed that the defective handrail was readily apparent because a miner doing a
workplace inspection or climbing up to the wash plant operator’s station should have noticed the
hazard. Tr. 147. The inspector testified that the marks where the vertical bar was rubbing
against the platform indicated that the wet side screen deck had been operational without the
hazard being corrected. Tr. 141. Also, inspector Frey noted that the broken handrail was not
noted in a workplace examination and no safeguards were put in place to indicate it had been
identified. Tr. 143,147. Accordingly, he acknowledged that the weld could have broken when
the plant was last in operation and considered this a mitigating factor thus assessing the
negligence level as moderate. Sec’y Ex. P-6, p. 1.
Respondent argued that a drop down bar connects the southwest railing once a miner
reaches the top of the operator’s station and manually swings it down. Tr. 152. Inspector Frey
testified that because the southwestern bottom corner weld was broken, the drop down bar would
not function as intended and would not help a miner climbing up the ladder. Tr. 152.
Additionally, the inspector testified that the swing gate for the working platform did not work
properly and made the cited condition more obvious. Tr. 143. Again, I find Frey’s testimony
straight forward, detailed, articulate and persuasive meriting credit and deference over that of
Respondent’s arguments.
For all these reasons, I find that Order No. 8693969 was the result of moderate
negligence on the part of Respondent, as they should have been aware of the violation because
the handrail was not maintained and the operator’s station is frequently used by miners to operate

36 FMSHRC Page 2929

the wet side screen deck. Tr. 143. Therefore, the negligence designation for Order No. 8693969
is upheld at a moderate level.
4. Penalty Assessment
The Secretary has proposed a regularly assessed penalty of $243.00. Respondent’s
history of previous violations revealed that the mine has a total of seven past violations and no
repeated violations of 56. 11027. P-1. Walker, the operator, testified that Respondent is a small
mom and pop operation with 15 current employees at the time the citation was issued. Tr. 301.
Respondent has not argued or presented any evidence indicating that the proposed penalty would
affect its ability to continue business operations. I upheld the moderate negligence designation
for this citation because the defective handrail was able to freely move and a miner could not
safely use it for support while climbing up the ladder without the potential of falling. Tr. 137138, 143. The defective handrail created a reasonable likelihood of injury because a miner must
go up the ladder onto the operator’s tower to operate the wet plant. Tr. 498. According to the
record, the citation was terminated based upon a seasonal closure and shutdown of the mine.
After considering all six penalty criteria and relying on my penalty analysis earlier in this
decision, I uphold the Secretary’s proposed penalty and assess Respondent a civil monetary
penalty of $243.00 for Citation No. 8693969.
B. Citation No. 8693974
Inspector Frey issued Citation No. 8693974 on August 19, 2013 for an alleged violation
of 30 CRF 56.9303. Tr. 180. The inspector alleged within the citation that:
The grizzly ramp wall adjacent to the plant feed conveyors is unstable and has
multiple concrete clocks in the process of toppling as ramp material thrusts them
outward. Miners travel below the wall to maintain and grease the conveyors and
as an access to the Surge tunnel. If the wall were to fail, a miner in the adjacent
travelway could be fatally crushed.
Sec’y Ex. 9.
Inspector Frey determined that the violation was reasonably likely to cause an injury, the
resulting injury would be fatal, the violation was S&S, affected one person, and was the result of
Respondent’s moderate negligence. Sec’y Ex. P-9. The Secretary has proposed a penalty of
$243.00.
1. Findings
Inspector Frey issued Citation No. 8693974, because he determined that a grizzly ramp
wall adjacent to the plant feed conveyors was unstable where he observed multiple concrete

36 FMSHRC Page 2930

blocks that were in the process of toppling. He found this condition to be a violation of 30 CFR
§ 56.9303 which mandates that:
Ramps and dumping facilities shall be designed and constructed of materials
capable of supporting the loads to which they will be subjected. The ramps and
dumping facilities shall provide width, clearance, and headroom to safely
accommodate the mobile equipment using the facilities.
The Respondent constructed a ramp to a grizzly storage bin where large vehicles dump
gravel into a grizzly that funnels the gravel onto a feed conveyor located in a surge tunnel under
the ramp. Tr. 183. Frey testified that the grizzly ramp wall was not capable of supporting the
weight of the materials above the ramp. Tr. 182. The inspector observed that material was
sloughing into the roadway past a stack of ecology blocks which were in the process of toppling
and being thrust forward by the material that was falling down the grizzly ramp. Id., Sec’y Ex.
P-9. Also, Frey stated that the retaining wall under the ramp was cracked and leaning outward.
Tr. 185. The inspector also noted that at the top of the grizzly ramp there was a k-rail highway
style divider that was sloughing down the side of the ramp. Tr. 180-185. Frey testified that the
ecology blocks and k-rail created a hazard to miners because the material falling down the ramp
could cause them to topple down into the walkway. Tr. 182. Respondent denied that the blocks
were in the process of toppling and asserted that the blocks were purposefully installed in a
toppled fashion to hold the bank down from erosion. Tr. 439, 441-442, Sec’y Ex. P-9.
According to the inspector, the standard was violated because the grizzly ramp wall was
unstable and multiple concrete blocks were in the process of toppling as ramp material thrust
them outward. Tr. 182-189. I defer to and credit the inspector’s testimony that the grizzly ramp
was not capable of supporting the loads to which it was subject because the falling material was
thrusting hazards outward. The inspector believed that eventually the material would thrust the
multiple hazards outward and into the travelway. Tr. 186. The photos taken by the inspector
show the toppled ecology blocks with k-rails that appear to have been displaced due to sloughing
of ground material. Sec’y Ex. 9. I concur with his belief based on his direct observation and
photos of the condition. As such, I find that Respondent violated 30 CRF 56.9303 by failing to
stabilize a grizzly ramp wall that was not able to support the load to which it was subjected.
Citation No. 8693974 is AFFIRMED.
2. Gravity
Inspector Frey designated Citation No. 8693974 as an S&S violation. I have already
found that the failure to stabilize a grizzly ramp wall was in violation of 30 CFR § 56. 9303 thus
meeting element one of the Mathies test. The second Mathies element is a contribution to a
discrete safety hazard. By failing to stabilize the grizzly ramp wall, Respondent exposed miners
to crushing injuries from ecology blocks toppling or material sloughing off the ramp. Tr. 182,
191.
The third Mathies element requires showing a reasonable likelihood that the hazard
contributed to will result in an injury. Inspector Frey testified that miners were exposed to the
ecology blocks and sloughing material because they have to access the travel way to perform

36 FMSHRC Page 2931

maintenance, repair, inspection, cleanouts, and to access the surge tunnel. Tr. 193. The
inspector testified that eventually, with continued mining operations, the ecology blocks would
topple into the travel way, the k-rails would slough into the travel way, and gravel would slough
into the travel way. Tr. 191. Also, Frey stated that there could be a landslide of debris if the
retaining wall or ecology blocks failed to hold back the material on the grizzly ramp. Tr. 191.
The inspector also testified that the vibration from mobile equipment around the ramp would
cause material to move down the ramp quicker and would eventually cause the grizzly ramp to
fail. Tr. 191-192. Frey also observed that the grizzly ramp hazard was obvious when he walked
up the travel way. Tr. 190. He noted that the ramp hazard would likely continue to exist into the
future because the ramp failure was not recognized in any workplace examinations. Tr. 190-193.
According to the inspector, the operator was unaware of the state of the grizzly ramp wall. Tr.
190.
Respondent argued that the violation was not reasonably likely to lead to a significant
injury because the ecology blocks, k-rails, or gravel material would not slough off in a way that
would lead to a significant injury. Tr. 439-446. The operator testified that the ecology blocks
were locked in place because of a v-notch at the bottom of every block. Tr. 442. Walker
avowed that neither the ecology blocks nor k-rails had moved at all since they were installed to
hold back material on the grizzly ramp. Tr. 443. He also testified that even though the retaining
wall under the ramp was cracked, it was reinforced with rebar. Tr. 444. I defer to and credit the
inspector’s straight forward and compelling testimony that it was reasonably likely the ecology
blocks, k-rails, or gravel material sloughing off the ramp would lead to a significant injury
because his observations are clearly supported by the photos he took. Tr. 194, Sec’y Ex., P-9.
The fourth Mathies element requires a reasonable likelihood that a resulting injury will be
reasonably serious. The inspector testified that he was concerned that a miner could be crushed
or struck by an ecology block or k-rail falling down the slope of the ramp. Tr. 194. I share his
concern and find it is reasonably likely the ecology blocks, k-rails, or gravel material sloughing
off the ramp would lead to fatal crushing injuries. Tr. 193-194.
As the evidence produced at hearing supports all four elements of the Mathies formula, I
find that the Secretary has established that Citation No. 8693974 was an S&S violation.
3. Negligence
Inspector Frey testified that he was worried about continued mining operations because
the grizzly ramp had probably degraded over time and the hazards were not recognized by the
operator. Tr. 193. The inspector believed the hazards on the grizzly ramp had not been
recognized because the area was not cordoned off to prevent access and there was no workplace
examination identifying the hazards. Tr. 193. Frey also testified that the toppling ecology
blocks, sloughing k-rails, and cracked retaining wall were obvious signs that the ramp was
failing. Tr. 195. However, he also acknowledged that the deterioration progressed slowly thus
“kind of working itself into the background” on not being noticed. Tr. 195.
For all these reasons, I find that Citation No. 8693974 was the result of moderate
negligence on the part of Delta Concrete, as they should have been aware of the violation

36 FMSHRC Page 2932

because the toppled ecology blocks and sloughing material were obvious and next to a travel
way where sufficient workplace examinations should have been taking place. Tr. 143. I find the
slow progression of the deterioration to be a mitigating factor leading one to believe immediate
attention was not necessary. Therefore, the negligence designation for Citation No. 8693974 is
upheld at moderate.
4. Penalty Assessment
The Secretary has proposed a regularly assessed penalty of $243.00. Respondent’s past
history of previous violations revealed that the mine has a total of seven past violations and no
repeated violations of 56. 9303. Sec’y Ex. P-1. Walker, the operator testified that Respondent is
a small mom and pop operation with 15 current employees at the time the citation was issued.
Tr. 301. Respondent has not argued or presented any evidence indicating that the proposed
penalty would affect its ability to continue business operations. I upheld the moderate
negligence designation for this citation because the toppling ecology blocks, sloughing k-rails,
and cracked retaining wall were obvious signs that the grizzly ramp was failing. Tr. 195. I
found that it was reasonably likely the ecology blocks, k-rails, or gravel material sloughing off
the ramp could lead to a significant injury to a miner. Tr. 194. According to the record, the
citation was terminated based upon a seasonal closure and shutdown of the mine.
After considering all six penalty criteria and noting the penalty analysis earlier in this
decision, I uphold the Secretary’s proposed penalty and assess Respondent a civil monetary
penalty of $243.00 for Citation No. 8693974.
C. Citation No. 8693975
Inspector Frey issued Citation No. 8693975 on August 23, 2013 for an alleged violation
of 30 CRF 56.18002a. Tr. 180. The inspector alleged within the citation that:
A competent person has not been performing workplace exams at least once per
shift at Delta Concrete based upon the number of discrete safety hazards found
during inspection and the length of time necessary for them to accumulate. A
miner performing their duties could be fatally injured if exposed to a hazard that
should have been found and corrected in an examination of working places.
Sec’y Ex. 10.
Frey determined that the violation was reasonably likely to cause an injury, the resulting
injury would be fatal, the violation was S&S, affected one person, and was the result of
Respondent’s high negligence. Sec’y Ex. 10. The Secretary has proposed a penalty of $807.00.

36 FMSHRC Page 2933

1. Findings
Inspector Frey issued Citation No. 8693975, because he determined that a competent
person had not been performing workplace exams at least once per shift at Delta Concrete. This
was in violation of 30 CFR § 56.18002a which mandates that:
A competent person designated by the operator shall examine each working place
at least once each shift for conditions which may adversely affect safety or health.
The operator shall promptly initiate appropriate action to correct such conditions.
A competent person according to 56.2 is “a person having abilities and experience that
fully qualify him to perform the duty to which he is assigned.” 30 C.F.R. § 56.2. MSHA’s
Program Policy Manual states a competent person is “any person who, in the judgment of the
operator, is fully qualified to perform the assigned task. MSHA does not require that a
competent person be a mine foreman, mine superintendent, or other person associated with mine
management.” Sec’y Ex., P-19.
Inspector Frey testified that there was evidence that mining related activities had occurred
on days where there was no record of examination. Tr. 214. After inspecting Delta Concrete,
inspector Frey stated that the number of hazards identified led him to question the competency of
the person performing those inspections. Tr. 214. The operator acknowledged that at the time
they were cited, Respondent was not conducting competent person inspections every shift as
required by 56.18002a. Tr. 474. The inspector stated that there were missing records of
examinations for when work would have been performed based upon looking at production
reports. Tr. 217. Inspector Frey noted that most of the hazards cited at the mine were open and
obvious hazards that should have identified by sufficient workplace examinations. Tr. 214.
The inspector noted no less than four citations where he believed the operator should
have discovered the hazards during a previous workplace examination. Tr. 216. For Citation
Nos. 8693966 and 8693970, the operator should have discovered the inadequate splices during
workplace examinations because the splices were open and obvious and a competent miner
would have spotted the hazard. Tr. 216-219. For Citation No. 8693968, the operator should
have observed the damaged 480-volt cable adjacent to a travel way during a workplace
examination because the damage had existed for a significant period of time based on the amount
of damage to the cable. Tr. 217-218. Lastly, for Citation No. 8693969, the operator should have
observed the defective handrail during a workplace examination because a reasonable miner
would have noticed it while climbing up to the operator’s station. Tr. 219.
I credit the inspector’s testimony that the hazards were extensive and had most likely
existed for a significant period of time demonstrating that inadequate work place examinations
had taken place while the plant was operational. Tr. 215. Respondent argued that there was a
communications failure between Inspector Frey and Operator Walker regarding who was
responsible for workplace examinations. Walker avowed that as owner operator he was the
competent person who was responsible for the exams while Frey believed Crusher Operator
Jimmy Hanlon was responsible. Tr. 334-335, 127, 129-130, 217. Respondent further asserted he
believed workplace exams were required for operation days only and not maintenance days. Tr.,

36 FMSHRC Page 2934

473-474. Regardless of the alleged communication issues I find sufficient evidence to conclude
that there was a lapse in required workplace exams due to the absence of exam records and the
fact that the electrical violations had existed for an extended period while the plant was
operational prior to the inspection. As such, I find that Respondent violated 30 CRF 56.18002a
because a competent person had not been performing workplace examinations at least once per
shift at Delta Concrete. Citation No. 8693975 is AFFIRMED.
2. Gravity
Inspector Frey designated Citation No. 8693975 as an S&S violation. I have already
found that Respondent failed to have a competent person perform workplace examinations at
least once per shift in violation of 30 CFR § 56.18002a. The second Mathies element is a
contribution to a discrete safety hazard. There were a number of discrete safety hazards that
existed at Delta Concrete which included inadequate splices, damaged power cords, and a broken
handrail that were not discovered during workplace examinations. Tr. 226-228, P-10.
The third Mathies element requires showing a reasonable likelihood that the hazard
contributed to was likely to result in an injury. For the electrical citations, the inspector testified
that many of the electrical hazards were located in travel ways where miners perform
maintenance, repair, inspection, and cleanouts. The inspector also testified that other discrete
safety hazards like the defective handrail or grizzly ramp were also in locations where miners
frequently work and these hazards were obvious and had existed for a significant period of time
while Respondent was operational. Based on the testimony of the inspector, I find a reasonable
likelihood that the failure to conduct workplace examinations reasonably contributed to the
likelihood a significant injury would occur.
The fourth Mathies element requires a reasonable likelihood that a resulting injury will be
reasonably serious. Inspector Frey testified that under the right circumstances a miner coming
into contact with a defective splice or power cord would be potentially fatal because most of the
defective hazards had electrical capacity up to 480 volts. Tr. 59. The inspector also testified to
five separate fatalgrams, each showing that a 480-volt shock can be fatal. Tr. 60. Frey stated
that the non-electrical hazards posed a significant risk of injury to miners which included
crushing injuries from the grizzly ramp and fall hazards from the defective handrail. I credit the
inspector’s testimony that many of the hazards cited on August 19, 2013 could lead to fatal
injuries and that six out of nine citations were designated as potentially fatal. The failure to
identify and address these hazards via workplace examinations significantly contributed to the
reasonable likelihood of a serious injury or fatality occurring.
As the evidence produced at hearing supports all four elements of the Mathies formula, I
find the Secretary has established that Citation No. 8693975 was an S&S violation.
3. Negligence
Inspector Frey testified that the negligence designation was high because the operator
should have been aware that work place examinations were not being conducted as required by a
competent person. Tr. 228. Frey testified that the Walker stated during their conversation that

36 FMSHRC Page 2935

equipment operator Jimmy Hanlon did not have sufficient training and was not competent to
perform some workplace examinations. Tr. 229. Walker testified that his conversation with the
inspector was contrary to inspector Frey’s testimony, but did acknowledge that Hanlon was not
competent to perform workplace examinations for electrical hazards. Tr. 378. Based on both
parties’ testimony, I credit the inspector’s testimony that the number of electrical hazards
demonstrates that a competent miner whether it be Hanlon or Walker himself, was not
performing adequate workplace examinations. Tr. 233.
Frey also reviewed the workplace examination reports from Delta Concrete and
determined that work was performed on days when examinations were not recorded. Tr. 230.
Frey stated that when he inspected Respondent, he was not provided with examination records
for every day he could substantiate work taking place. Tr. 230. The inspector stated that there
were some records of examinations on some days, but there were gaps between days when work
was performed. Tr. 215. The mine operator acknowledged that the miners doing workplace
examinations did not do examinations on maintenance days if the wet plant was not going to
produce gravel, even if the miners worked in the cited areas. Tr. 472-474. He also testified that
at the time of the citation, there were competent miners doing the workplace inspections, but it
was not on a daily basis. Tr. 473. Based on the testimony from both parties it is easy to
conclude there was a fundamental misunderstanding between Frey and Walker about who was
responsible for the workplace examinations. Walker ultimately admitted he was the responsible
competent person after his son left employment from the mine in 2011 and acknowledged that
workplace exams had only been conducted on a shift by shift basis while the plant was
operational and not when maintenance only was being performed. However, it is clear from the
evidence that at a minimum the electrical violations had existed since 2011, no less than a year
and a half to two years prior to the 2013 inspection. A competent workplace exam while the
plant was operational during this time should have identified the electrical issues. Therefore, I
find the high negligence designation to be appropriate and uphold it.
4. Penalty Assessment
The Secretary has proposed a regularly assessed penalty of $807.00. Respondent’s past
history of previous violations revealed that the mine has a total of seven past violations and no
repeated violations of 56. 18002a. Sec’y Ex. P-1. Walker, the operator testified that Respondent
is a small mom and pop operation with 15 current employees at the time the citation was issued.
Tr. 301. Respondent has not argued or presented any evidence indicating that any of the
proposed penalties would affect its ability to continue business operations. I upheld the high
negligence designation for this citation because of the many open and obvious hazards present at
Delta Concrete that should have been identified by sufficient workplace examinations. I also
found that significant injury was reasonably likely because many of the electrical hazards were
located in travel ways where miners perform maintenance, repair, inspection, and cleanouts.
After considering all six penalty criteria and noting my penalty analysis earlier in this
decision, I uphold the Secretary’s proposed penalty and assess Respondent a civil monetary
penalty of $807.00 for Citation No. 8693975.

36 FMSHRC Page 2936

D. Citation No. 8693977
Inspector Frey issued Citation No. 8693977 on August 23, 2013 for an alleged violation
of 30 CRF 56.9300a. Tr. 241. The inspector alleged within the citation that:
The scale does not have rub rails or any other mid axle height barrier with
approximately a 4 foot drop off on either side. Trucks drive across the scales as
needed depending upon business. Driving off the scale could cause a truck to turn
on its side leading to cuts, bruises, strains, sprains, or broken bones for the driver.
Standard 56.9300a was cited 1 time in two years at mine 5001783 (1 to the
operator, 0 to a contractor).
Sec’y Ex. 11.
Inspector Frey determined that the violation was unlikely to cause an injury, the resulting
injury would be lost workdays or restricted duty, the violation was not S&S, affected one person,
and was the result of Respondent’s low negligence. Sec’y Ex. 11. The Secretary has proposed a
penalty of $100.00.
1. Findings
Inspector Frey issued Citation No. 8693977, because he determined that the operator’s
scale for weighing vehicles was in violation of 30 CFR § 56.9300a which mandates that:
Berms or guardrails shall be provided and maintained on the banks of roadways
where a drop-off exists of sufficient grade or depth to cause a vehicle to overturn
or endanger persons in equipment.
Frey testified he observed an operator’s scale for weighing vehicles at the Delta Junction
mine that did not have rub rails, berms, or guardrails and there was a four foot drop off on either
side of the scale. Tr. 243-245. The Commission requires a three-part test for finding violations
of 30 C.F.R. § 56.9300: (1) whether the scales are part of a roadway; (2) whether each scale has
a drop-off of sufficient grade or depth to cause a vehicle to overturn or endanger persons; and (3)
whether the scales are equipped with berms or guardrails that are at least mid-axle height of the
largest self-propelled mobile equipment that travels the roadway. Lakeview Rock Prods., Inc., 33
FMSHRC 2985 (Dec. 2011).
Since issuance of Lakeview the case that has most fully considered the question of
whether an elevated scale is part of a roadway has been Knife River Corp., 34 FMSHRC 1109
(May 10, 2012) . In Knife River, Judge Thomas McCarthy applied the Commission's three-part
test and provided a thorough analysis in determining that an elevated truck scale with 10-inch
rub rails was not part of the roadway. The judge found unpersuasive the argument that the scale
is part of a continuous road and therefore, by definition, part of the roadway. 34 FMSHRC at
1121. He noted that because the Commission required in Lakeview an initial determination of
whether the scale was part of the roadway, the judge must examine the “design, location, and use
of the truck scale”, in making his determination. Id. The judge agreed with the Secretary's

36 FMSHRC Page 2937

position that the plain language of Section 56.9300 would apply to an area where vehicles must
travel, but found that the Secretary in his case failed to establish that the scale constituted such an
area where vehicles must travel. Id. at 1122. He noted that the scale at Knife River was not
located on the main haulage road where all the vehicles entering or exiting the mine were
required to travel, but rather was removed on a single-lane access road. Id. The only trucks that
drove on the scale were those being weighed. Id. The judge specifically found that:
Drivers do not use the scale as one typically uses a road, bridge, bench, or ramp
(i.e., as a means of traveling from one point to another)… Rather, the scale is
used as a piece of equipment for the sole purpose of weighing vehicles, which
slowly move across the scale with intermittent stops before proceeding back on
course. The fact that trucks enter one end of the scale and exit on another is
completely secondary to the scale's function and use. Id.
I find that advancing a functionalist approach, rather than a formal approach that
examines the scale superficially, Judge McCarthy allowed the first element of the Commission's
test to have meaning. Citing Lakeview Rock Products, Inc., 35 FMSHRC 473, 487, 2013 WL
1385621, at *13-14.
In this case Respondent argued that the operator’s scale was not a roadway that vehicles
used as an entrance or exit to the mine site. Tr. 437. Respondent’s Google image of the Delta
Junction mine shows the location of the main roadway used by miners and contractors in red.
Tr. 317-319, Resp. Ex. A, Photo 7. Walker, the operator, testified that the main roadway in red
ran from left to right, and that the lines depicted traffic flow from the two exit and entrance
points. Id. Also, Walker testified the location of the scale access point and exit were next to the
office and indicated that a miner would not use this access as an entrance to or exit from the
mine site. Tr. 318, 437. Walker also testified that the specific purpose of the scale was for
weighing vehicles and was not a roadway that miners would regularly use. Tr. 437. Frey
testified that he considered the scale to be a part of the roadway because vehicles and trucks
would have to drive across the scale twice in order to be properly weighed. Tr. 243-244. First, a
truck driver with an empty trailer would have to drive over the scale and then weigh the trailer
end. Tr. 243. Second, the truck driver would then drive over it again, after being loaded, to get a
heavy weight to determine the saleable amount of product. Tr. 243. Because of the vehicle
traffic that the scale road took on, the inspector believed that it was part of a roadway. Tr. 243244.
After considering both parties’ arguments, I find that the design, location, and use of the
scale at the Delta Junction mine establishes that it is not part of the mine’s roadway. I credit
Walker’s testimony that the scale road was next to the office and that it was not used as an
entrance or exit roadway to or from the mine. Like Knife River, the scale was not located on the
main travel way road that ran left to right, but rather the scale area was removed onto a singlelane access by the main office. Resp. Ex. A, Photo 7. I credit Walker’s testimony that the sole
purpose of the scale area was to weigh vehicles and not as a roadway miners used as an entrance
and exit. The design and placement of the scale at the mine, based on the Google image of the
Delta Junction mine site, clearly demonstrates that a miner wishing to weigh a vehicle would
have to pull off the main roadway onto the scale road to be weighed. Resp. Ex. A, Photo 7.

36 FMSHRC Page 2938

Therefore, I find that the Secretary has failed to prove a violation of 30 CRF 56.9300a because
the scale access area was not part of a roadway. Accordingly, Citation No. 8693977 is
VACATED.
VI. PENALTY ASSESSMENT SUMMARY
The following chart summarizes my findings and the assessed penalties in this docket:
Citations
Citation
No.
8693966
8693967
8693968
8693970
8693978
8693969
8693974
8693975
8693977
Total

Proposed
Amount
$807.00
$100.00
$807.00
$807.00
$807.00
$243.00
$243.00
$807.00
$100.00
$4721.00

Judgment
Amount
$400.00
$100.00
$807.00
$400.00
$807.00
$243.00
$243.00
$807.00
$0.00
$3807.00

Modification
Negligence level reduced from high to moderate
Negligence level reduced from high to moderate

36 FMSHRC Page 2939

Vacated

VII. ORDER
Based upon the findings above, Citation Nos. 8693966 and 8693970 are
AFFIRMED with modified negligence levels. Citation Nos. 8693967, 8693968,
8693978, 8693969, 8693974, and 8693975 are AFFIRMED as written. Citation No.
8693977 is VACATED. Based on the criteria in section 110(I) of the Mine Act, 30
U.S.C. § 820(I), I assess eight penalties contested at hearing above for a total judgment
penalty of $3807.00. Delta Concrete Inc. is hereby ORDERED to pay the Secretary of
Labor the total sum of $3,807.00 within 30 days of this order.1

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge

Distribution: (First Class U.S. Mail)
Sean J. Allen, Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd., Suite 216,
Denver, CO 80202 for Petitioner
Robert Groseclose, Cook, Schuhmann & Groseclose, Inc., 714 Fourth Avenue, Suite 200,
Fairbanks, AK 99701 for Respondent

1

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO
63179-0390

36 FMSHRC Page 2940

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9933
FAX: 202-434-9949

November 3, 2014
BRODY MINING, LLC,
Contestant,
v.

CONTEST PROCEEDINGS
Docket No. WEVA 2014-82-R1
Order No. 9003242; 10/28/2013
Docket No. WEVA 2014-83-R
Order No. 7166788; 10/28/2013

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

Docket No. WEVA 2014-86-R
Order No. 4208892; 10/29/2013
Docket No. WEVA 2014-87-R
Order No. 4208893; 10/29/2013
Docket No. WEVA 2014-97-R
Order No. 7166790; 11/04/2013
Docket No. WEVA 2014-151-R
Order No. 9003246; 11/07/2013
Docket No. WEVA 2014-161-R
Order No. 9004638; 11/12/2013
Docket No. WEVA 2014-190-R
Order No. 4208898; 11/14/2013
Docket No. WEVA 2014-191-R
Order No. 7166793; 11/18/2013
Docket No. WEVA 2014-192-R
Order No. 4208899; 11/19/2013
Docket No. WEVA 2014-193-R
Order No. 9005720; 11/20/2013
Docket No. WEVA 2014-221-R
Order No. 8155306; 11/26/2013

1

While this case has been before the Commission, MSHA has issued numerous section
104(e) withdrawal orders pursuant to Pattern of Violations Notice No. 7219154. Brody has
contested each of the orders. As Chief Judge Lesnick noted in his Order dated January 30, 2014,
all such notices of contest have been consolidated in this proceeding.

36 FMSHRC Page 2941

Docket No. WEVA 2014-244-R
Order No. 9005722; 12/03/2013
Docket No. WEVA 2014-284-R
Order No. 8154092; 12/05/2013
Docket No. WEVA 2014-285-R
Order No. 7166798; 12/09/2013
Docket No. WEVA 2014-447-R
Order No. 7166805; 01/15/2014
Docket No. WEVA 2014-448-R
Order No. 7166806; 01/15/2014
Docket No. WEVA 2014-449-R
Order No. 7166807; 01/15/2014
Docket No. WEVA 2014-450-R
Order No. 7166808; 01/15/2014
Docket No. WEVA 2014-451-R
Order No. 8154104; 01/15/2014
Docket No. WEVA 2014-452-R
Order No. 9005729; 01/13/2014
Docket No. WEVA 2014-453-R
Order No. 9005731; 01/13/2014
Docket No. WEVA 2014-454-R
Order No. 9005732; 01/14/2014
Docket No. WEVA 2014-455-R
Order No. 9005733; 01/14/2014
Docket No. WEVA 2014-456-R
Order No. 9005735; 01/15/2014
Docket No. WEVA 2014-457-R
Order No. 9005736; 01/15/2014
Docket No. WEVA 2014-479-R
Order No. 7166815; 01/23/2014

36 FMSHRC Page 2942

Docket No. WEVA 2014-480-R
Order No. 7166816; 01/23/2014
Docket No. WEVA 2014-529-R
Order No. 7166817; 01/27/2014
Docket No. WEVA 2014-530-R
Order No. 9005739; 01/27/2014
Docket No. WEVA 2014-531-R
Order No. 9005747; 02/10/2014
Docket No. WEVA 2014-537-R
Order No. 9007544; 02/04/2014
Docket No. WEVA 2014-539-R
Order No. 7166822; 01/28/2014
Docket No. WEVA 2014-561-R
Order No. 9005740; 01/27/2014
Docket No. WEVA 2014-562-R
Order No. 9005742; 01/29/2014
Docket No. WEVA 2014-563-R
Order No. 7166826; 02/04/2014
Docket No. WEVA 2014-570-R
Order No. 9005750; 02/19/2014
Docket No. WEVA 2014-571-R
Order No. 7166824; 01/29/2014
Docket No. WEVA 2014-572-R
Order No. 9005741; 01/29/2014
Docket No. WEVA 2014-593-R
Order No. 9005753; 02/20/2014
Docket No. WEVA 2014-594-R
Order No. 7166831; 02/11/2014
Docket No. WEVA 2014-638-R
Order No. 9005754; 02/24/2014

36 FMSHRC Page 2943

Docket No. WEVA 2014-639-R
Order No. 9005762; 03/04/2014
Docket No. WEVA 2014-640-R
Order No. 9003274; 03/04/2014
Docket No. WEVA 2014-641-R
Order No. 9005763; 03/04/2014
Docket No. WEVA 2014-672-R
Order No. 9005758; 02/25/2014
Docket No. WEVA 2014-673-R
Order No. 9005756; 02/25/2014
Docket No. WEVA 2014-674-R
Order No. 7166838; 02/24/2014
Docket No. WEVA 2014-675-R
Order No. 7166839; 02/24/2014
Docket No. WEVA 2014-676-R
Order No. 8166840; 02/24/2014
Docket No. WEVA 2014-678-R
Order No. 7166837; 02/24/2014
Docket No. WEVA 2014-679-R
Order No. 9005755; 02/24/2014
Docket No. WEVA 2014-680-R
Order No. 9005757; 02/25/2014
Docket No. WEVA 2014-681-R
Order No. 9005759; 02/25/2014
:
Docket No. WEVA 2014-715-R
Order No. 8135796; 03/11/2014
Docket No. WEVA 2014-716-R
Order No. 8135797; 03/12/2014
Docket No. WEVA 2014-717-R
Order No. 9001091; 03/11/2014

36 FMSHRC Page 2944

Docket No. WEVA 2014-718-R
Order No. 9001095; 03/19/2014
Docket No. WEVA 2014-719-R
Order No. 9001096; 03/11/2014
Docket No. WEVA 2014-720-R
Order No. 9005764; 03/05/2014
Docket No. WEVA 2014-722-R
Order No. 9007123; 03/23/2014
Docket No. WEVA 2014-745-R
Order No. 9969627; 03/24/2014
Docket No. WEVA 2014-804-R
Order No. 9005343; 04/03/2014
Docket No. WEVA 2014-805-R
Order No. 9005768; 04/03/2014
Docket No. WEVA 2014-806-R
Order No. 9005769; 04/07/2014
Docket No. WEVA 2014-807-R
Order No. 9005770; 04/07/2014
Docket No. WEVA 2014-811-R
Order No. 9005344; 04/09/2014
Docket No. WEVA 2014-813-R
Order No. 9005772; 04/09/2014
Docket No. WEVA 2014-814-R
Order No. 9005773; 04/09/2014
Docket No. WEVA 2014-819-R
Order No. 9005774; 04/15/2014
Docket No. WEVA 2014-854-R
Order No. 9005778; 04/21/2014
Docket No. WEVA 2014-855-R
Order No. 9005779; 04/22/2014

36 FMSHRC Page 2945

Docket No. WEVA 2014-856-R
Order No. 9005780; 04/22/2014
Docket No. WEVA 2014-909-R
Order No. 9005347; 05/01/2014
Docket No. WEVA 2014-974-R
Order No. 9005349; 05/13/2014
Docket No. WEVA 2014-975-R
Order No. 9005350; 05/13/2014
Docket No. WEVA 2014-976-R
Order No. 9007426; 05/13/2014
Docket No. WEVA 2014-1012-R
Order No. 9005786; 05/29/2014
Docket No. WEVA 2014-1013-R
Order No. 9005787; 05/29/2014
Docket No. WEVA 2014-1035-R
Citation No. 9005792; 06/12/2014
Docket No. WEVA 2014-1036-R
Citation No. 9005362; 06/11/2014
Docket No. WEVA 2014-1037-R
Citation No. 9005360; 06/04/2014
Docket No. WEVA 2014-1038-R
Citation No. 9005361; 06/11/2014
Docket No. WEVA 2014-1135-R
Order No. 9905374; 07/15/2014
Docket No. WEVA 2014-1138-R
Order No. 9005376; 07/16/2014
Docket No. WEVA 2014-1157-R
Order No. 9009660; 07/22/2014
Docket No. WEVA 2014-1993-R
Order No. 9005384; 07/30/2014

36 FMSHRC Page 2946

Docket No. WEVA 2014-1994-R
Order No. 9005383; 07/30/2014
Docket No. WEVA 2014-1995-R
Order No. 9005382; 07/30/2014
Docket No. WEVA 2014-1996-R
Order No. 9005380; 07/30/2014
Docket No. WEVA 2014-2172-R
Order No. 9003948; 09/08/2014
Docket No. WEVA 2014-2173-R
Order No. 9005393; 09/09/2014
Docket No. WEVA 2014-2174-R
Order No. 9005398; 09/10/2014
Docket No. WEVA 2014-2175-R
Order No. 9005400; 09/10/2014
Docket No. WEVA 2014-2221-R
Order No. 9007439; 09/17/2014
Docket No. WEVA 2015-59-R
Order No. 7272454; 10/07/2014
Docket No. WEVA 2015-60-R
Order No. 7272462; 10/07/2014
Docket No. WEVA 2015-61-R
Order No. 7272494; 10/07/2014
Docket No. WEVA 2015-63-R
Order No. 9005704; 10/14/2014
Docket No. WEVA 2015-66-R
Order No. 9005705; 10/14/2014
Docket No. WEVA 2015-67-R
Order No. 9006768; 10/14/2014
Docket No. WEVA 2015-68-R
Order No. 9006769; 10/14/2014

36 FMSHRC Page 2947

Docket No. WEVA 2015-121-R
Order No. 7219154; 10/24/2014
Mine: Brody Mine No. 1
Mine ID: 46-09086

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 2013-370
A.C. No. 46-09086-308309
Docket No. WEVA 2013-564
A.C. No. 46-09086-310927
Docket No. WEVA 2013-997
A.C. No. 46-09086-321030
Docket No. WEVA 2013-1055
A.C. No. 46-09086-323691
Docket No. WEVA 2013-1189
A.C. No. 46-09086-326531
Docket No. WEVA 2013-619
A.C. No. 46-09086-342759
Docket No. WEVA 2013-620
A.C. No. 46-09086-342759
Docket No. WEVA 2014-702
A.C. No. 46-09086-344708
Docket No. WEVA 2014-842
A.C. No. 46-09086-347271

BRODY MINING, LLC,
Respondent.

Mine: Brody Mine No. 1

36 FMSHRC Page 2948

ORDER DISMISSING PATTERN CHARGES
Appearances:

Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, VA, for the Secretary
Lauren Marino, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, VA, for the Secretary
Dana Ferguson, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, VA, for the Secretary
Jason Grover, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, VA, for the Secretary
Ronald Gurka, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, VA, for the Secretary
Michael T. Cimino, Esq., Jackson Kelly, PLLC, Charleston, WV, for
Brody Mining, LLC
R. Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, PA, for Brody
Mining, LLC
Benjamin M. McFarland, Esq., Jackson Kelly, PLLC, Wheeling, WV, for
Brody Mining, LLC
K. Brad Oakley, Esq., Jackson Kelly PLLC, Lexington, KY, for Brody
Mining, LLC
Adam J. Schwendeman, Esq., Jackson Kelly PLLC, Charleston, WV, for
Brody Mining, LLC

Before:

Judge William B. Moran

ORDER DISMISSING THE PATTERN CHARGE AS VIOLATIVE OF DUE PROCESS
Introduction
Imagine, if you will, a contest of any sort. It could be a board game or a card game or, as
in this instance, a contest to determine if a pattern of violations exists. One would expect that,
before beginning such a contest, the rules would be announced in advance; a flush in a poker
game, for example, being established as all five cards being of the same suit, or in a board game,
a requirement of owning all the properties on a given street before installing houses. But what if
the rules were announced only after the game had been played, after the hand had been played so
to speak, and that one party then announced the basis for a winning hand? Perhaps a two or
three, not an Ace, King or Queen, was anointed as the superior card, a determination made by the
one then announcing the rules and according to the hand that player then had. For most people,
one would hope, such a contest would seem patently unfair, almost rigged.
In the field of law, one could assert that such an arrangement violates procedural due
process, lacking fundamental fairness. Yet, for the reasons which follow, in this Court’s view
the Secretary of Labor’s procedure for charging a mine operator with a pattern of violations
smacks of such after-the-fact rules. Here, not only does the Secretary’s elaborate and lengthy
regulation, involving a pattern notice, fail to identify what constitutes a pattern, even after the
pattern notice was issued and the litigation challenging that notice instituted, the Secretary still

36 FMSHRC Page 2949

did not identify, beyond general and vague statements, the basis for his pattern claim. Despite
the Court’s requirement that the Secretary identify the basis for this claim before the hearing
commenced, it declined to do so. Like the unfair card game, the Secretary advised that he would
be announcing the “rules,” not simply after the hearings were concluded, but that he would also
wait until after the Court made its determinations as to which of the litigated citations and orders
were found to have the significant and substantial finding associated with them. Only then,
knowing which violations were identified as “significant and substantial” would the Secretary
then announce the basis for his claim of a pattern of violations. Such rules are antithetical to
procedural due process.
The Pattern of Violations Provisions
The Mine Act, at 30 U.S.C. § 814(e), provides:
If an operator has a pattern of violations of mandatory health or safety standards
in the coal or other mine which are of such nature as could have significantly and
substantially contributed to the cause and effect of coal or other mine health or
safety hazards, he shall be given written notice that such pattern exists. If, upon
any inspection within 90 days after the issuance of such notice, an authorized
representative of the Secretary finds any violation of a mandatory health or safety
standard which could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard, the authorized representative
shall issue an order requiring the operator to cause all persons in the area affected
by such violation, except those persons referred to in subsection (c) of this
section, to be withdrawn from, and to be prohibited from entering, such area until
an authorized representative of the Secretary determines that such violation has
been abated.
The Pattern of Violations regulations applicable to this litigation were issued as a final
rule on January 23, 2013, with an effective date of March 25, 2013. Pattern of Violations, 78
Fed. Reg. 5056 (Jan. 23, 2013). The present version replaced an earlier regulatory version,
issued in 1990, addressing the subject of patterns. The process of creating that earlier version
began in 1980, and, a decade later, on July 31, 1990, a final rule was issued. Pattern of
Violations, 55 Fed. Reg. 31,128 (July 31, 1990). Thus, from the time of enactment of the Mine
Act, it took more than 12 years for the first regulation addressing a pattern of violations to be
issued and then more than another 22 years for the latest iteration.
The present Pattern of Violations regulation contains 20,108 words, but only 628 of
those are devoted to the text of the rule itself and only 182 of those speak to the “Pattern

36 FMSHRC Page 2950

criteria.”2 While seven criteria are listed, none of them define what constitutes a pattern, nor
does any other provision in the rule provide such a definition. Instead, the provision sets out the
types of enforcement actions that will be included in the pattern criteria.
Background of this litigation
Brody was issued a pattern of violations notice. Thereafter, upon Brody’s challenge to
the Pattern regulations, an administrative law judge upheld the facial validity of those rules, and
the Commission, on interlocutory appeal, affirmed that ruling, in a decision issued on August 28,
2014. Brody Mining, LLC, 36 FMSHRC 2027 (Aug. 28, 2014). Following the Commission’s
decision, the posture of the case before this Court was to determine if a pattern of violations had
been established and, integral to that determination, which citations/orders, among the 54
constituting the basis for the pattern of violations notice, were established as violations and,
among those, which were also shown to significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard. The Court analogized the distinction
between the decision made by the Commission and the present posture of this litigation as
comparable to the indictment phase and a trial phase, with the Commission having concluded
that the pattern regulation passed facial validity but that at the trial phase it was now time for the
Secretary to establish that a pattern of violations existed. To achieve this, the Court
determined that MSHA would need to identify the basis for its claim that the 54 citations/orders

2

30 C.F.R. § 104.2 provides:
Pattern criteria.

(a) At least once each year, MSHA will review the compliance and
accident, injury, and illness records of mines to determine if any mines meet the
pattern of violations criteria. MSHA's review to identify mines with a pattern of
S&S violations will include:
(1) Citations for S&S violations;
(2) Orders under section 104(b) of the Mine Act for not abating S&S
violations;
(3) Citations and withdrawal orders under section 104(d) of the Mine Act,
resulting from the mine operator's unwarrantable failure to comply;
(4) Imminent danger orders under section 107(a) of the Mine Act;
(5) Orders under section 104(g) of the Mine Act requiring withdrawal of miners
who have not received training and who MSHA declares to be a hazard to
themselves and others;
(6) Enforcement measures, other than section 104(e) of the Mine Act, that have
been applied at the mine;
(7) Other information that demonstrates a serious safety or health management
problem at the mine, such as accident, injury, and illness records; and
(8) Mitigating circumstances.
(b) MSHA will post the specific pattern criteria on its Web site.

36 FMSHRC Page 2951

formed a pattern of violations and then establish that those matters were violations and that they
had the “significant and substantial,” or “S&S,” aspect to them.
Consistent with this evidentiary burden upon the Secretary, the Court directed that,
prehearing, the Secretary was to set forth the basis for its contention that those violations created
a pattern of violations. This direction was brought about by Brody’s filing of a Motion in Limine
prior to the hearing concerning the Secretary’s definition of a pattern. In that motion, Brody
sought to compel the Secretary to identify: (1) what constituted a pattern violations; (2) what
number of S&S designations Brody had to prevail upon to defeat the pattern of violations
designation; and (3) how the grouping of citations in the pattern notice constituted a pattern of
violations. The Court agreed that each of these were reasonable and necessary inquiries,
essential for a Respondent to be able to defend against the charge.
Other than expressing generalities about patterns, however, the Secretary failed to set
forth the basis for his charge. As noted by Brody, the Secretary only relied upon the same
dictionary definition and case law concerning sex crimes and Racketeer Influenced and Corrupt
Organizations Act (“RICO”) violations (18 U.S.C. §§ 1961–1968), asserting that the
determination of whether there exists a pattern of violations at Brody can only be resolved by the
administrative law judge following the admission of evidence and determination of whether
violations were S&S.3 Brody’s Mem. of Law in Supp. Of Vacating the Notice of a Pattern of
Violations at 6 [hereinafter Brody Memorandum] (citing Sec’y’s Resp. to Contestant’s Mot. in
Limine Concerning Definition of a Pattern at 3).
As a consequence of the Secretary’s failure to comply with the Court’s direction, the
Court announced that it would be dismissing the pattern notice.4 At the hearing which ensued,
3

The Court also directed the Secretary to identify, at the beginning of the September 23,
2014, hearing, his definition of a pattern and especially as to the 54 citations in this case,
advising that the pattern notice would be dismissed if the Secretary failed to provide that
information. When the hearing commenced on September 23, 2014, the Secretary spoke only in
generalities, reiterating that a pattern of violations could be as few as two citations, citing the
same cases as in his Response to Brody’s Motion in Limine. Tr. 44-45. The Secretary did not
address how the 40 citations that remained of those identified in the notice of pattern of
violations constituted a pattern of violations or how Brody could defeat such designation. Tr. 4548. Instead the Secretary indicated that a determination of a pattern could not be made until the
Court determined which citations were properly designated S&S and upon such determinations,
it would then be up to the Court to determine whether those constituted a pattern. Tr. 49-50.
4

This did not mean that the hearing was cancelled. The Court directed that the hearing
would proceed as scheduled so that the 54 citations/orders comprising the basis for the pattern
notice would be heard. This decision was made for purposes of efficiency and the promise that
challenges to pattern charges would be promptly heard. By hearing the evidence for the
underlying alleged violations and determining which of those were established as violations in
fact and by further determining which among those were also significant and substantial
(“S&S”), the Commission, if it were to disagree with the Court’s decision to dismiss the pattern
notice, would have all the information before it to determine if those established S&S violations
(continued…)

36 FMSHRC Page 2952

the Court elaborated on its reasoning, explaining that its dismissal of the pattern notice rested
on two grounds: the Secretary’s process is inconsistent with procedural due process, and it is also
inconsistent with the expeditious resolution of pattern matters. The Court added that one could
also view the Mine Act’s legislative history as requiring, as an element that the Secretary has to
prove for pattern charges, that the other enforcement mechanisms under the Mine Act have been
insufficient to deal with the mine’s safety and health issues. Tr. 649-650.
Thus, the Court expressed that, on procedural due process grounds, it was an obligation
on the Secretary’s part to identify, in advance of the hearing,5 the road map explaining the basis
for his claim that the mine has shown a pattern of violations. The Court stated that the
Secretary’s approach of essentially putting it in the lap of the Commission to determine, on a
case-by-case basis and over a period of years, the grounds for a pattern would also be
inconsistent with an expeditious resolution of the matter. Tr. 345.
Brody’s contentions regarding dismissal of the pattern notice
Brody submitted a Memorandum of Law in support of vacating the notice of a pattern of
violations. Preliminarily, Brody notes that on August 28, 2014, the Commission issued its
decision on the interlocutory appeal in this matter but that it did not directly address the issue of
what constitutes a pattern of violations. Brody Mem. at 3. It observes that the regulations
promulgated by MSHA do not define what constitutes a pattern of violations. Id. Instead,
Section 104.2 [of those regulations] only sets out the types of enforcement actions
that will be included in MSHA’s website criteria, not the criteria used to place
Brody or any operator on a POV, according to the Secretary. The criteria that
MSHA used to place Brody on a pattern of violations are, according to the
Secretary, only a “general statement [of] policy.” If that is the case (which Brody
does not concede), the Secretary does not identify any criteria that can be
construed as an interpretation of “pattern of violations.”
Id. at 3-4 (citing Brody, 36 FMSHRC at 2062 n.8 (Althen, Comm’r, dissenting)).

4

(…continued)
constituted a pattern of violations under 30 U.S.C. § 814(e). Therefore, over a period of three
weeks, the evidence relating to the 54 alleged violations was heard by the Court. The Court’s
findings relating to those 54 matters are contained in this decision.
5

The Court reiterated its view that the government made a fatal flaw in proceeding
without informing Brody of the basis for its pattern charge and that such an approach is
fundamentally unfair on due process grounds. This failure was compounded by not only failing
to announce its basis prehearing but also by asserting that, even post-hearing, it would not
express the grounds. Instead the Secretary asserted that it would wait until after the Court ruled
on which violations were proven and were S&S. Tr. 439-442.

36 FMSHRC Page 2953

“From the very beginning, Brody has sought in this matter to get the Secretary to identify
in what way the 54 citations constitute a pattern and how many Brody must successfully defend
in order to prevail.” Id. at 5. It states that, “[b]efore the Commission, the Secretary again
asserted that according to the agency, there is no specific number that it has to prove.” Id. (citing
Comm’n Oral Argument Tr. 57). “Rather, the Secretary pointed to the general definition of
‘pattern’ in Black’s Law Dictionary. The Secretary asserted that as few as two citations may
constitute a pattern.” Id. (citing Comm’n Oral Argument Tr. 75; 36 FMSHRC at 2061 n.7
(Althen, Comm’r, dissenting)). “In a less than specific comment at oral argument, the Secretary
said that Brody could litigate the 54 citations, without explanation as to how Brody could defend
itself against the allegation of a pattern.” Id. at 5-6 (citing Comm’n Oral Argument Tr. 73).
“The Secretary also asserted that he has defined pattern as a ‘mode of behavior or series of acts
that are recognizably consistent.’” Id. at 6 (quoting 36 FMSHRC at 2061 (Althen, Comm’r,
dissenting)). That vague “definition,” Brody observes, “fails to explain how the 54 citations at
issue then evidence a pattern.” Id. As noted above, Brody also observes that the Secretary
“relied upon the same dictionary definition and case law concerning sex crimes and RICO
violations and asserted that the determination of whether there exists a pattern of violations at
Brody ‘can only be resolved by the administrative law judge following the admission of
evidence’ and determination of whether violations were S&S.” Id. (quoting Sec’y’s Resp. to
Mot. in Limine at 3).
“Instead of explaining how the current citations in the POV notice constitutes a pattern or
giving any indication of how many citations Brody had to defeat,” Brody further notes in its
Memorandum, “the Secretary asserted that pattern determinations needed to be made on a caseby-case basis once the ALJ made a determination of whether the S&S allegations were valid:
Now, that recognizes that, even though the Secretary is charging one group of
violations as establishing a pattern, what may be left after adjudication may be a
different group of violations. And we are not going to know that until after you
hear the evidence and you rule on those citations. So I can’t tell you a precise
number of violations that is going to establish a pattern.”
Id. at 7-8 (quoting Tr. 55).
Given the foregoing, Brody notes that “[t]he Secretary apparently believes that once the
administrative law judge makes his S&S decisions, then the Secretary will decide in what way
that constitutes a pattern, possibly after additional briefing.” Brody Mem. at 8 (emphasis added).
In that regard, Brody observes that “the Secretary even asked that the hearing be bifurcated to
that effect.” Id.
Under such an arrangement, Brody asserts that the Secretary’s failure to define a pattern
in this case precludes it from presenting a defense. Id. According to the Secretary’s approach,
Brody cannot be informed of the basis for the pattern charge, and therefore the defense it must
muster against it, until after the hearing. Id.
As a general proposition Brody maintains that the administrative law judge has the
authority to vacate or dismiss the pattern of violations notice. Id. It notes that, under Rules 53

36 FMSHRC Page 2954

and 55 of the Commission’s Rules of Procedure, the judge has the authority to require the
Secretary to provide the information sought here, and if not provided, the power to vacate the
pattern notice. Id. In addition, under Federal Rule of Civil Procedure 41(b), also applicable
under the Commission Rules, dismissal (in this case vacating) is available if a party fails to
comply with an order of the ALJ, as the Secretary has done here. Id. at 8-9; see Marfork Coal
Co., Inc., 29 FMSHRC 626, 634 (Aug. 2007) (affirming the principle that judge’s possess the
authority to order dismissals).
Brody also maintains that the failure to provide a definition of a pattern of violations is
contrary to law. Brody Mem. at 9. In this regard it asserts that “even in issuing the pattern
notice, the Secretary did not actually have a clear concept of what constituted a pattern in this
case. Otherwise, the Secretary would have set it out long ago.” Id. Nonetheless, the agency is
obligated to act in accordance with “ascertainable standards.” Id. (citing Morton v. Ruiz, 415
U.S. 199 (1974); Patchogue Nursing Ctr. v. Bowen, 797 F.2d 1137, 1143 (2d Cir. 1986); White
v. Roughton, 530 F.2d 750 (7th Cir. 1976); Holmes v. N.Y.C. Hous. Auth., 398 F.2d 262, 265 (2d
Cir. 1968); Burke v. U.S. Dep’t of Justice, 968 F. Supp. 672, 681 (M.D. Ala. 1997)).
As the foregoing illustrates, “the Secretary does not have a definition of a pattern of
violations and instead is relying solely on the ALJ to make a determination.” Brody Mem. at 10.
However, it is important to note that “[t]he issue here is not some evaluation of a single citation
or order, but [rather] an evaluation of how a group of citations fit together, in the context of the
Act’s enforcement scheme and in recognition of the purpose of Section 104(e) to serve as an
enforcement tool when other tools have failed.” Id. In these special enforcement circumstances
Brody submits that “something more is needed than what the Secretary has offered.”6 Id.
Brody also notes that “Section 5 of the Administrative Procedure Act, 5 U.S.C. § 554
provides that ‘[p]ersons entitled to notice of any agency hearing shall be timely informed of . . .
the matters of fact and law asserted.’” Brody Mem. at 11. As the Court of Appeals stated in

6

Brody notes, by comparison:

In other proceedings before the Commission, an operator knows what the
Secretary needs to prove to prevail. The words of the specific standard or
regulation cited in the citation or order sets out what the Secretary must prove.
Here, nothing sets out what the Secretary must prove or intends to prove. The
promulgated regulation is not specific and is general in nature. . . . The Secretary
has offered no indication of the criteria for a pattern that the Administrator of
Coal Mine Safety and Health applied once Brody purportedly met MSHA’s
published criteria [nor offered] specific information, other than generalities, as to
why he believes the remaining 40 citations form a pattern. No party subject to
regulation should be required to go to hearing without a clear understanding of
what the government must prove to prevail.
Brody Mem. at 10-11.

36 FMSHRC Page 2955

Bendix Corp v. FTC, 450 F.2d 534, 542 (6th Cir. 1971), “an administrative agency must give
clear statement of the theory on which a case will be tried.” In this case, Brody asserts,
the theory of the case includes an explanation of what constitutes a pattern and
how the remaining 40 citations meet that definition. It is basic to any hearing for
Brody to have such information and the lack of it supports vacation of the pattern
of violations notice. Brody does not know what evidence to present concerning a
pattern of violations in its defense. It does not even know the basic information of
how the Secretary believes the 40 remaining citations constitute a pattern.
Brody Mem. at 12.
As an independent basis, Brody contends that as an operator under the Mine Act,
[w]here the imposition of sanctions is at issue in a proceeding brought by an
enforcing administrative agency, the due process clause of the United States
Constitution requires that the regulation sought to be enforced give fair warning to
Brody of the conduct it prohibits or requires. If it does not, it is unenforceable.
Id. (citing Indus. Co. of Wyo., 12 FMSHRC 2463, 2471 (Nov. 1990) (ALJ) (citing United States
v. L. Cohen Grocery Co., 255 U.S. 81 (1921))). “It is a basic principle of due process that an
enactment is void for vagueness if its prohibitions are not clearly defined.” Id. (quoting Grayned
v. City of Rockford, 408 U.S. 104, 108 (1972)). Under these precepts, the Secretary’s failure to
state what about this grouping of citations constitutes a pattern of violations cognizable under the
Act “is contrary to the basic principles of fundamental fairness.” Id. at 13 (citing In re Conn.
Yankee Power Co., No. 50-213-OLA, 2003 WL 21314058 (Atomic Safety and Licensing Board
Panel, Nuclear Regulatory Commission, May 20, 2003); U.S. Procter & Gamble Co., 356 U.S.
677, 682 (1958)). Thus, Brody asserts that the failure to define a pattern deprives it of due
process.
The Secretary has taken the position that such reliance is mitigated by the fact that an
operator will have available expedited review of the POV notice upon a contest of the initial
Section 104(e) order by an inspector. But this assertion does not square with fundamental
fairness, because the process envisioned by the Secretary is a months’ (if not years) long process,
considering the likelihood of appeals. Brody Mem. at 13. Therefore,
it hardly constitutes an ‘expedited’ process to resolve the issues raised by the
pattern of violations notice in this fashion. Moreover, it places Brody in a
position that it cannot know what evidence, other than the basic defenses to each
citation, to counter whatever arguments the Secretary might come up with after he
knows which of the 40 remaining citations are designated S&S by the ALJ (and
which end up so designated after an appeal process).
Id. at 13-14.

36 FMSHRC Page 2956

Brody also makes the point that it is not simply about the right to a hearing, such hearing
must be meaningful as well. In this regard it observes that “the fundamental requirement of due
process is the opportunity to be heard at a meaningful time in a meaningful manner.” Id. at 15
(emphasis omitted) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)) (internal quotation
marks omitted). “The fundamental right to notice and a meaningful hearing at a meaningful time
has been recognized in various scenarios.” Id. (citing James Daniel Good Real Prop., 510 U.S.
43 (1993) (seizure of real property under federal forfeiture law)).7 Accordingly, Brody seeks to
have the pattern of violations notice vacated.
Further Discussion
The Commission has affirmed the principle that “[b]efore a civil penalty may be
imposed, due process considerations preclude the adoption of an agency’s interpretation which
‘fails to give fair warning of the conduct it prohibits or requires.’” LaFarge N. Am., 35
FMSHRC 3497, 3500 (Dec. 2013) (quoting Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156
(D.C. Cir. 1986)). It has also observed that “a statute or standard . . . cannot be ‘so incomplete,
vague, indefinite or uncertain that men of common intelligence must necessarily guess at its
meaning and differ as to its application.’” Ala. By-Products Corp., 4 FMSHRC 2128, 2129 (Dec.
1982) (quoting Connolly v. Gerald Constr. Co., 269 U.S. 385, 391 (1926)).
Here, the Secretary has failed to define what constitutes a “pattern” of violations. From
his response to Brody’s Motion to Compel, the Secretary only offered that a pattern can be as
little as two violations that are, in some way, related. As the Supreme Court stated in Martin v.
OSHRC, 499 U.S. 144, 158 (1991), “the decision to use a citation as the initial means for
announcing a particular interpretation may bear on the adequacy of notice to regulated parties.”
So, too, the D.C. Circuit has given guidance on how to approach situations where an agency
provides no pre-enforcement warning. An agency provides adequate notice in such a situation
when, whether “by reviewing the regulations and other public statements issued by the agency, a
regulated party acting in good faith would be able to identify, with ‘ascertainable certainty,’ the
standards with which the agency expects parties to conform.”8 Gen. Elec. Co. v. EPA, 53 F.3d
1324, 1329 (D.C. Cir. 1995).
7

Other cases were also cited by Brody: Connecticut v. Doehr, 501 U.S. 1 (1991) (state ex
parte attachment procedures); Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978)
(termination of municipal utility service); N. Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601
(1975) (prejudgment garnishment of bank account); Fuentes v. Shevin, 407 U.S. at 67 (1972)
(state prejudgment replevin statutes); Sniadach v. Family Finance Corp. of Bay View, 395 U.S.
at 337 (1969) (state wage-garnishment procedure).
8

In what may be considered a useful comparison, in Wolf Run Mining Co., 32 FMSHRC
1669 (Dec. 2010), the Commission considered the meaning of the term “exposed,” and whether
ambiguity of the term violated due process. There it recognized that “[a]n agency’s interpretation
may be permissible but nevertheless may fail to provide the notice required to support imposition
of a civil penalty.” Id. at 1681. In applying the reasonably prudent person test, the Commission
stated that a “wide variety of factors is relevant, including . . . whether MSHA has published
(continued…)

36 FMSHRC Page 2957

In this case, the Secretary has provided only the broadest possible hint of what constitutes
a pattern of violations, and even at that, his offering is one which is partially incompatible with
the legislative history insofar as that history suggests that § 104(e) pattern notices are to be
reserved as a last resort against mine operators, when other enforcement mechanisms under the
Mine Act have failed.
Though given several opportunities to explain the basis for his pattern of violation
charges, an opportunity extended even up to the start of the hearings, the Secretary remained
steadfast in its stance that it did not have to comply with the Court’s instructions. Further, even
at the conclusion of the hearing, a point in time this Court considered to be too late in any event,
the Secretary still asserted that he would wait until the Court issued its rulings on the disputed
S&S citations/orders and only then would it announce the basis for its claim of a pattern of
violations. This approach is, at bottom, no different than the card or board game analogy made
at that outset of this Order, with a predestined outcome.
Yet, inconsistent with his stated position, at times during the hearing the Secretary would
suddenly announce that one thing or another was a “pattern,” but again without a definition or
explanation attached to the claim. The Secretary apparently believed that announcing the
conclusion that something is a pattern is equivalent to defining it. A few examples highlight this
misconception of the Secretary’s due process obligations. At one point, spontaneously, on the
second day of the first week of the hearings, Counsel for the Secretary asserted, “There’s a
pattern there.” Tr. 372. The Court noted that “you could have identified it before the hearing
began.” Counsel for the Secretary replied, “I thought we did.” Tr. 372. Further, the Court
would note that announcing a conclusion that some thing or other is a pattern does not establish
such a claim.
At another point during the same week, perhaps sensing the deficiency in its approach,
the Secretary made an attempt to introduce notes from a settled citation, for the purpose, as stated
by Counsel for the Secretary, of establishing a pattern. See Tr. 691-693. The Court noted that
such claims should have been cited in advance of this hearing as part of its basis for the
contention that a pattern was present. Tr. 691-692. The Court observed that the respondent is
put at a due process disadvantage in not knowing of such a claim in advance. Tr. 692.
Importantly, the Court added that, at this point in time, with the hearing underway, it was too late
to attempt to repair the due process deficiencies. Tr. 692. It added that the “last stop,” so to
speak, for that train to have established the basis for the Secretary's theory that there's a pattern,
was passed at the beginning of the hearings on Tuesday morning. Tr. 692. By not setting forth
8

(…continued)
noticed informing the regulated community with ascertainable certainty of its interpretation of
the standard in question. Id. (citations omitted). Also, as noted above and illustrative of this
duty to provide notice, in General Electric Co. v. EPA, 53 F.3d 1324, 1333-34 (D.C. Cir. 1995),
the Court of Appeals found that the EPA did not provide G.E. with fair notice because the
regulations and other policy statements were unclear, and where the agency itself struggles to
provide a definitive reading of the regulatory requirements, a regulated party is not ‘on notice’ of
the agency's ultimate interpretation of the regulations, and may not be punished.

36 FMSHRC Page 2958

the basis for its claim of a pattern of violations, Brody was put at a great disadvantage to defend
itself from that charge. Not being forearmed with the knowledge of the theory of the Secretary's
pattern of violations, facing the unknown as it were, Brody could not know how to defend itself.
It could not, for example, anticipate nor ask questions during the hearing if it has not been
informed of the basis for the alleged pattern. In fact, under the Secretary’s approach, Brody
would not know of the grounds for the pattern charge until after the Court made its findings as to
which of the citations/orders were affirmed and among those, which were significant and
substantial.
The Court’s explanation did not deter the Secretary, when in the mood, from lifting the
curtain and continuing to make the claim, but only as a conclusion without explanation, that it
had demonstrated a pattern. As counsel for the Secretary stated at the conclusion of the first
week of the hearing:
[The Secretary] would, for the record, . . . just state that we’ve now heard—we’ve
heard testimony on 12 violations. There were three others that were submitted
and stipulated to as S&S. That makes 15 possible significant and substantial
citations. [The Secretary] believe[s] that the 12, including the one [the Court]
already announced [its] decision on, were properly designated as S&S. [The
Secretary] believe[s] that those 15 violations establish a pattern of violations of
these cit[ations] and standards, and [the Secretary] would assert that, based on
that alone, the notice of the pattern of violation should be affirmed.
Tr. 814-15. Apparently, the Secretary believes that merely announcing, after the evidence has
been presented at a hearing for some citations, even in advance of findings of the significant and
substantial element for those by the Court, is sufficient to meet its burden. The Court does not
agree.
A last point needs to be made about the pattern of violations charge. The Court is aware
that legitimate pressure was placed upon the Secretary to arise from its slumber and utilize the
pattern provision after its virtual quietude of some 35 years. However, this can be viewed from
another perspective, too. Given that it took MSHA and the Secretary 12 years following the
enactment of the Federal Mine Safety & Health Act of 1977 to develop its first effort to produce
a regulation addressing a pattern of significant and substantial violations and another 22 years to
produce an iteration of a pattern of violations, now 35 years in all, it can hardly be argued that
there is now a rush to implement this important provision apart from fairness to those charged
with such violations. In this Court’s estimation it is more important that the process be fair, and
consistent with the principles of procedural due process.
Accordingly, the Secretary’s Brody Pattern of Violations Claim is hereby DISMISSED.

36 FMSHRC Page 2959

FINDINGS OF FACT AND LEGAL CONCLUSIONS RELATING TO THE
UNDERLYING CITATIONS AND ORDERS ASSOCIATED WITH THE
PATTERN CHARGE9
Before addressing the individual matters litigated here, it is important to note the longestablished elements to demonstrate that an established violation is also significant and
substantial (“S&S”).
As recently noted in Secretary of Labor, Mine Safety and Health Administration, (MSHA)
v. Wolf Run Mining Company 2014 WL 4273427, August 19, 2014, “The S&S terminology is
taken from section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1), and refers to more serious
violations. A violation is S&S if, based on the particular facts surrounding the violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature. See Cement Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr.
1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission further explained:
In order to establish that a violation of a mandatory safety standard is significant and substantial
under National Gypsum, the Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard - that is, a measure of danger to safety contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature. . . . Under the Commission's Mathies test, it is the contribution of the
violation at issue to the cause and effect of a hazard must be significant and substantial.” Id. at
*2.
The Secretary has conceded that the following citations, originally claimed to be S&S,
now are to have that designation deleted:
1.
2.
3.
4.
5.
6.
7.

Citation No. 7167412
Citation No. 7167474
Citation No. 9000309
Citation No. 7167473
Citation No. 8155925
Citation No. 8155936
Citation No. 8155926
9

The parties entered into a number of stipulations. These appear in Appendix I of this
decision. It is also noted that the listed dockets includes citations that are non-pattern related. A
motion to sever those non-pattern related citations was suggested. For example, regarding
Docket No. WEVA 2013-997, that docket contains citations in it which are not part of the POV
notice. The Court concluded that severing those citations and creating a separate docket would
create a potential for additional confusion and therefor it rejected the suggestion to sever those.
The Secretary was directed to provide a list of all those non-POV matters. Tr. 826-827. Finally,
without objection, the violation history for each of the contested violations was admitted. Tr.
828-830. Gov. Exhibits 25 C, 26 C, 33 C and 34 C.

36 FMSHRC Page 2960

8. Citation No. 8155937
9. Citation No. 9000282
10. Citation No. 9002292
11. Citation No. 8139621
12. Citation No. 8125045
In a similar, ostensibly coincidental, fashion, Brody Mining accepted the following citations, as
issued, including the S&S designation attached to them:
1. Citation No. 7165680
2. Citation No. 9000305
3. Citation No. 9000286
4. Citation No. 8151320
5. Citation No. 7168801
6. Citation No. 7168899
7. Citation No. 9000277
8. Citation No. 9000278
9. Citation No. 3577965
10. Citation No. 3578036
11. Citation No. 9000312
12. Citation No. 9000311
The alleged violations comprising the Secretary’s pattern of violation charge were
grouped into three categories: Twenty (20) pertained to emergency preparedness and escapeway
hazards; Nine (9) involved conditions and/or practices contributing to roof and rib hazards;
Eighteen (18) of these pertained to Ventilation and/or Methane hazards. They are discussed in
that order.
I.

Alleged Escapeway/Emergency Preparedness Violations; Conditions and/or
Practices contributing to Escapeway/Emergency hazards

Before addressing the particular citations/orders involving Emergency Preparedness and
Escapeway Hazards as they relate to S&S determinations, the Commission’s decision in
Cumberland Coal Resources, LP, 33 FMSHRC 2357 (Oct. 2011), aff’d by the D.C. Circuit, 717
F.3d 1020 (D.C. Cir. 2013), needs to be mentioned. There, beyond establishing the violation, the
second Mathies element was identified in the context of escapeways as the hazard of miners not
being able to escape quickly in an emergency with the related increased risk of injuries due to
such a delay. Under this second element the test is whether the violation would contribute to the
hazard of miners not being able to escape quickly in an emergency. The S&S analysis in such
matters must be evaluated in the context of an emergency but also, with regard to the third
Mathies element, the test is whether there is a reasonable likelihood that the identified hazard
contributed to by the violation will cause injury, and not that the violation itself will cause injury.
In the D.C. Circuit’s affirmance of the Commission, that Court rejected the mine’s argument that
“the phrase ‘could significantly and substantially contribute,’ which calls to mind an evaluation
of chance, properly accounts for all probability variables in any given significant and substantial
evaluation, including the probability of an emergency occurring.” Id. at *1026.

36 FMSHRC Page 2961

Citation 8153617 from Docket No. WEVA 2013-370
Brody admitted to the fact of violation for this, but contests the significant and substantial
finding. Jack Hatfield, MSHA Coal Mine Inspector, testified for the Secretary. Inspector
Hatfield has an extensive coal mining background, both in private mining and with MSHA.10
Brody employs the room and pillar mining method. Tr. 92. By stipulation, and the Court
considers this fact to be important for each of the alleged violations, it is noted that the Brody
mine liberates in excess of 1 million cubic feet of methane for a 24 hour period. Stipulation No.
24. During the period covered by the citations in this litigation, September 1, 2012 through
August 31, 2013, the mine was on a five day 103 spot inspection cycle. Id. Tr. 94. Gov.
Exhibits 1A, 1B, 1C, and 54.
On October 9, 2012, Inspector Hatfield, citing 30 C.F.R. §75.1504(a)(2), stated in his
section 104(a) citation that “[t]he foreman assigned by mine management to supervise the
working crew of the 5 Section Panel (008/011 MMU [“mechanized mining unit” Tr. 202.] ) has
not traveled the primary intake escapeway from the section to the intake air shaft. During an
interview with the foreman it is determined that the foreman has partially traveled the escapeway
but not to the air shaft, the primary intake escapeway it’s [sic] entirety. In the event of an
emergency requiring escape from the section to the shaft, this condition would contribute to the
workers being led in a direction other than directly to the intake air shaft.” Citation No.
8153617. The cited provision of the standard, acknowledged by the Respondent as being
violated here, succinctly provides: “Prior to assuming duties on a section or outby work location,
a foreman shall travel both escapeways in their entirety.” It was during the course of his
inspection that day that the Inspector met Eddie Halstead, who was the section boss on that [5]
section. Tr. 102-103. Inspector Hatfield asked Mr. Halstead if he had traveled his primary intake
escapeway to the intake air shaft, and Halstead admitted that he had not done that.
The Inspector considered the requirement to be important because Halstead, “in his role
as the supervisor over those workers . . . [involved] two sections . . . [and there are] two MMUs
and probably 13, 14 men. [Therefore, Hatfield] wanted to be sure that [Halstead] knew how to
get to that intake air shaft.” Tr. 104. Inspector Hatfield has had experience “in smoke as a
section boss. . . . [and has] been there when everybody is hollering and screaming [at him].” Tr.
104-105. Therefore, he has learned firsthand that it is important to know that the foreman has
traveled the escapeway. The preamble to this standard notes this too, providing “[t]he foreman is
in a leadership position and, in the event of an emergency, is entrusted with the responsibility for
leading miners out of the mine safely. To do this, the foreman must have the necessary skills,
including complete familiarity with both the primary and the alternate escapeways.” Tr. 106.
Inspector Hatfield seconded that expression from that preamble, noting that the foreman
will be “the man in charge . . . the leader to get those workers outside and to [ ] safety.” Tr. 107.
By traveling the escapeway, the foreman will establish landmarks in his mind, noting things such
as overcast walls and cribs, and thereby making him familiar with it. In order to get his men
out, to travel the escapeway, the foreman must travel it. This knowledge is needed aforehand
10

This is an appropriate point to take note that all of the witnesses in these proceedings
have a significant mining experience background.

36 FMSHRC Page 2962

because of the emergency conditions themselves and because the situation may well be
complicated by having injured workers. The foreman has other responsibilities at that time as
well, such as insuring that those within his charge have properly donned their breathing
apparatus. A fire, explosion, water inundation and methane gas can all bring about the need to
use the primary intake escapeway.
Hatfield then proceeded to identify on Brody’s escapeway map, dated October 23, 2012,
the Number 5 section, and that the primary escapeway for this, which is in the Number 6 entry.
He marked its location on the exhibit. Aiding this, Inspector Hatfield, also marked the areas that
the foreman did not travel, a failure which brought about the issuance of the citation. Six turns
are required in traveling that escapeway route. Broadly characterizing the shortcomings of the
foreman, but not distorting it, Inspector Hatfield summed up that the foreman had not traveled
about four-fifths of the escapeway.11 Tr. 119. For emphasis, the Inspector summed up that the
importance of complying with the standard is so that the foreman “knows where he’s going and
[ ] develops familiarity of where that escapeway is in relation to the sections of the intake air
shaft to get to the surface.” Tr. 122.
The Inspector then spoke to his significant and substantial (“S&S”) designation,
beginning with the second Mathies element, as the first element, violation of the standard, was
conceded. Hatfield identified the discrete safety hazard as “being exposed to smoke, carbon
monoxide, not being familiar with the turns [along the escapeway route] [and lacking familiarity
necessary to] lead [his] crew out [,] in smoke and CO gas.” Tr. 122. The contribution to the
hazard presented by the violation, was not being familiar with landmarks in the escapeway to get
miners safely out. That failure contributed to the risk of exposure to smoke and CO. Tr. 123.
The lack of familiarity is heightened by the length of the escapeway itself, about 2 miles, and by
the turns and overcasts in that route. Without that familiarity, gained by compliance with the
standard, one traveling in smoke may mistake an overcast for a stopping and miss the steps.
Further, the lack of familiarity makes it easier to get lost or turned around. Conversely, by
knowing the presence and location of overcasts, that knowledge informs where walls are and
provides a reference point, which can reassure that one is going in the right direction, towards
exiting the mine. The Inspector confirmed that the lack of familiarity, in his opinion and
experience, acts to increase the likelihood of an injury occurring. Tr. 125. One may go in the
wrong direction as a consequence and that lack of familiarity can lead to panic with the men
under his charge perhaps losing confidence in him.
Inspector Hatfield also listed the injury as reasonably likely to be of a reasonably serious
nature, marking that as “fatal” on his citation. In this regard, he noted that a short exposure to
carbon monoxide (“CO”) will kill and all of this is heightened if, as a consequence of lack of
familiarity, the foreman makes bad choices, such as leaving the primary escapeway and taking
alternate entries, or taking the return, with the effect that the risk of succumbing to CO gas is
increased. Tr. 126. While there are things such as a lifeline and reflectors, those are not failsafe
devices, as they may only be present in a best-case scenario. He noted that an explosion, for

11

A point of clarification, the cited violation was not for failing to “examine” the
escapeway, but rather for failing to travel it. Tr. 121.

36 FMSHRC Page 2963

example, may disrupt those things. In terms of injuries, the Inspector expressed that one could
succumb to carbon monoxide and smoke exposure.
For negligence, marked as moderate, the Inspector noted that the standard is not
complicated and that the operator, through its upper management, should have known that the
foreman, who is also part of management, had not traveled the primary intake escapeway. Tr.
130.
Upon cross-examination, it was brought out that miners could use their lifeline in the
event of smoke or CO in the escapeway. That miners would also have SCSRs (self-contained
self-rescuers), and that reflectors are every 25 feet in the escapeway, was also noted. The
Inspector agreed that the foreman had traveled the alternate escapeway, but that was due to the
fact that it was the section roadway too.12 It was also asserted that Mr. Halstead had
considerable mining experience. However the Inspector did not buy into the claim that not
having traveled the intake escapeway would have no bearing on a foreman’s ability to lead
miners to safety. In this regard, Hatfield noted that the purpose of the standard is to familiarize
oneself with that escapeway, learning for example to recognize turns and landmarks in addition
to the condition of the top, where cribs have been built and other conditions such as muddy
areas. Tr. 138. The Court concurs with Inspector Hatfield’s analysis.
Brody called Mr. Barry Browning in connection with this citation. Browning has been in
the mining industry since 1992 and this experience includes acting as a foreman. Tr. 158.
Though not presently employed by Brody, he was working at that mine when this citation was
issued and the citation was issued to him. Tr. 160. Conceding the violation, Browning
countered with the assertion that Halstead had worked in various locations up the intake, had
been to the fan, and had been trained on use of the fan and hoist. Tr. 161. Halstead was,
however, a new employee, having worked at the Brody mine for only about a month.13
Browning marked the areas of the escapeway that Halstead traveled. Tr. 164. Browning also
referred to SCSR cache signs, signs posted in every entry adjacent to a refuge chamber,
reflectors14 and lifelines, all apparently presented as factors impacting the S&S designation. Tr.
176-177.
Browning was of the opinion that the violation did not present a safety hazard. Tr. 185.
This was based upon Halstead’s familiarity with some parts of the escapeway along with the fact

12

One should not conflate the primary escapeway with the alternate. The former is
isolated and a fresh air intake. The latter, in contrast, has belt transformers, pumps and high-volt
cable in it. Tr. 150-151. Besides, the standard’s requirement pertains to the primary escapeway.
13

In fact, the Court noted that, in its estimation, Halstead’s recent employment at the
mine heightened the importance of compliance with the standard. Tr. 166.
14

Browning admitted that, for reflectors, in a smoke-filled atmosphere, one would have
to be close to them. Otherwise, in those conditions, one wouldn’t see them. Tr. 184.

36 FMSHRC Page 2964

that it was “well marked and everything.”15 Tr. 186. On cross-examination, Mr. Browning
conceded that familiarity with directions makes it easier to go from one location to another and
that the foreman is the one charged with getting his crew out to safety in the event of an
emergency. He also agreed that not being able to escape a mine quickly in an emergency would
be a hazard and that such a hazard would be likely to result in serious injuries. 16 Tr. 188.
Upon review of the testimony, the Court concludes that the violation was S&S and the
negligence moderate. The testimony from Inspector Hatfield established the three disputed S&S
factors, as the first factor, the violation was conceded. The safety hazard, the risk of miners
being unable to escape the mine in the event of an emergency, contributed to by the violation
was obvious. Knowing some parts of the escapeway route is not a substitute for compliance, nor
does it reduce the hazard in an emergency. While the Respondent pointed to a number of other
safety provisions, with the idea that those provisions reduced the likelihood of an injury and its
seriousness, the focus must remain on whether the hazard contributed to by the violation
increases the likelihood of an injury. As the inspector’s testimony confirmed, in an emergency
situation, the lack of familiarity with the escape route in those conditions could spell disaster.
A few other points need to made. These points, which will be made only once in this
decision, but which apply to the other S&S disputes here, speak to two aspects of S&S
determinations.
First, a mine operator’s raising of putatively ameliorating safety measures, is not part of
the appropriate S&S analysis. As the Commission held in Secretary of Labor v. Consolidation
Coal, 2013 WL 4648491, August 14, 2013, (“Consolidation Coal”) redundant safety measures
have nothing to do with the violation, and they are irrelevant to the significant and substantial
inquiry.
More particularly, the Commission there noted that it “categorically reject[ed] Consol's
argument that its other safety measures, including rock dusting, carbon monoxide monitors, and
fire-fighting equipment reduced the degree of danger and rendered the violation non-S&S. In
Buck Creek, 52 F.3d at 136, the Seventh Circuit rejected the operator's contention that other fire
prevention safety measures mitigated the S&S nature of an accumulation. It stated that the fact
that the operator “has safety measures in place to deal with a fire does not mean that fires do not
pose a serious safety risk to miners.” 52 F.3d at 136; see also Amax Coal Co., 18 FMSHRC
1355, 1359 n.8 (Aug. 1996) (rejecting operator's contention that its redundant fire suppression
system reduced the likelihood of serious injury); Cumberland Coal Res. Inc., 33 FMSHRC 2357,
15

However, it is noted by the Court that Browning had earlier conceded that smoky
conditions impacted such markings.
16

Mr. Kevin Webb also was presented to testify for the Respondent on this matter, but
his testimony was only about a subsequent event, the following year, involving a similar
violation, but for which MSHA did not mark it as S&S. The Court, upon objection by the
Secretary, ruled that the proposed testimony was not material and not relevant and therefore
could not be presented. To preserve the issue and the Court’s adverse ruling against the
Respondent, an offer of proof was permitted. Tr. 192-194.

36 FMSHRC Page 2965

2369 (Oct. 2011) (reasoning that adopting the position that redundant, mandatory safety
protections provide a defense to a finding of S&S would lead to the anomalous result that every
protection would have to be nonfunctional before a S&S finding could be made), aff'd sub nom.,
Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1029 (D.C. Cir. 2013) (stating “because
redundant safety measures have nothing to do with the violation, they are irrelevant to the
significant and substantial inquiry”). We agree with the judge that “[w]hile extra precautions
may help reduce some risks, they do not … make accumulations violations non-S&S.” 32
FMSHRC at 935 at *4.
The second observation, which also has general applicability, is that an experienced
MSHA inspector's opinion that a violation is significant and substantial is entitled to substantial
weight. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek
Coal Inc. v. MSHA, 52 F.3d. 133, 135-136 (7th Cr. 1995).
Finally, when the Commission considers whether a violation is S&S, and, more
specifically, when it evaluates the reasonable likelihood of injury under the Mathies test, it
“considers circumstances assuming that normal mining operations continue without the
intervention of an inspector.” Consolidation Coal Co., 35 FMSHRC 2326, 2337 (Aug. 2013);
See also, U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1130 (Aug. 1985) (finding that a poorly
ventilated face could be reasonably likely to cause injury even if methane accumulation at the
time of the citation was nonhazardous); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574
(July 1984) (stating approvingly that the ALJ below, when considering whether a violation was
S&S, did not make “any assumptions as to abatement” and instead assumed continued normal
mining operations).
This assumes in each instance that a court finds the inspector to have been credible. In
this instance the Court finds that Inspector Hatfield was credible and that it is appropriate to
afford substantial weight to his opinion. Apart from the determination however, the Court
independently finds that the violation was S&S. Familiarity with the escapeway is the key
aspect.
The proposed penalty for this was assessed at $4,329. Upon consideration of the
evidence and each of the statutory penalty factors, the Court agrees that the assessed amount is
appropriate and that amount is hereby imposed.
Citation 7167386 from Docket No. WEVA 2013-370
This citation, issued October 22, 2012, alleges that “[t]he number 5 section primary
escape way [sic] life line [sic] is not being maintained as required. The life line was equipped
with 2 consecutively installed cones to indicate an up coming [sic] branch line. There is no
branch line in this area. This condition exist[s] where two primary life lines connect near the
mine fan. Standard 75.380(d)(7)(vii) was cited 5 times in two years at mine 4609086 (5 to the
operator, 0 to a contractor).” Gov. Ex 2A, 2B.
MSHA Coal Mine Inspector James A. Jackson, Jr. testified with regard to this section
104(a) citation. As with Inspector Hatfield, Mr. Jackson has a work background of significant

36 FMSHRC Page 2966

mining experience. In the cited provision, there is a requirement for two indicator cones to be
equipped consecutively with the tapered end pointing inby. Tr. 203. This is to indicate to miners
during an escape situation that there is an upcoming branch line. Id. The Inspector helpfully
referred to Gov. Ex 2C, which illustrates the signs and signals on a lifeline and a branch line.
As suggested by the term, a lifeline is “a continuous line leading from a working section to the
surface or escapeway, . . . [t]hey’re used for escape during a mine emergency.” Tr. 205.
Although depicted in the standard itself and copied for Gov. Ex. 2C, at the Court’s
request the Inspector drew a sketch of the problem he encountered. This sketch is Gov. Ex. 2E,
and it shows the two consecutively installed cones along the sole horizontal line in that sketch.
Tr. 207. The vertical line in the sketch represents another primary escapeway lifeline to which
that the horizontal line was attached. The problem was that this was an escapeway lifeline and
not a branch line. Tr. 208. In short, the two consecutively installed cones conveyed misleading
information, signifying that there was an upcoming branch line. Such a branch line would have
SCSRs or a refuge chamber. That is, the cones advised, incorrectly, that “some type of safety
equipment or a safe haven” would be there for miners during an escape. Instead, despite the
information conveyed by the cones, miners would come up to a primary escapeway lifeline.
Simply stated, the standard requires that the two cones on a lifeline are to indicate a branch line
coming up, but here there was no such branch line. Here again, as with the citation next above,
Brody stipulated to the fact of violation. Tr. 212, Stipulation 29.
Inspector Jackson then spoke to the hazard this admitted violation presented. The hazard,
he stated, was “miners not being able to escape the mine during an emergency in a timely
manner.” Tr. 212-213. The violation contributed to that hazard by informing miners that they
were coming up to a branch line, where they would find SCSRs or a shelter. When they don’t
find that, confusion and panic can ensue and this will operate to delay their escape, exposing
them to smoke and CO. Tr. 213. By thinking, when they come to the vertical line depicted in
the Inspector’s sketch, that they would be coming to a branch line, they would be traveling about
a 100 feet in the wrong direction before discovering that the expected SCSRs or a shelter are not
there. This mine, the Inspector noted, has a history of ignitions and methane inundations, a fact
which is not in dispute. Thus, taking all this together, the Inspector concluded that it was
reasonably likely that this misleading information would cause an injury due to miners panicking
and not being able to find their way out of the mine. Tr. 213-214. The Court agrees.
Because of the information they convey, cones play significant roles. Even a cone by
itself, with its conical shape, conveys information to an escaping miner. Feeling the tapered end
first tells the miner he is heading in the right direction. That tapered end widens on the other end
of the cone, so a miner knows that by moving from the narrow end to the wide end, he is
proceeding in the correct direction, out to safety. Tr. 215. The safety hazard attendant with this
violation is miners not being able to escape during an emergency, as the false indicators would
lead them to believe that safety equipment was nearby, when it was not. Tr. 221. Not being able
to find that expected equipment would be disruptive to say the least. The Inspector also
concluded that this misleading information increased the likelihood of an injury, as by traveling
in the wrong direction, and thereby delaying their escape, this would cause panic and confusion.
The need for miners to then change direction delays the 12 to 15 men that would be involved in
these circumstances. Being tethered, with SCSRs in their mouth preventing oral communication,

36 FMSHRC Page 2967

and not being able to see one another when in smoke, is another complication attendant to
moving in the wrong direction. Fatal injuries could result due to smoke exposure, CO and fire.
Tr. 223.
The Inspector marked the negligence as “moderate” for this citation because he
concluded that it was an obvious condition. The mine’s weekly examiner is to check the lifeline
as part of those duties. The moderate designation included consideration that there was some
mitigation. Tr. 220.
Upon cross-examination, it was pointed out that the condition existed where two primary
lifelines connect near the mine fan and that the mine fan is where one exits the mine. Tr. 224.
Brody’s counsel asserted that the cited condition was one break, only about 100 feet from the
exit. The Inspector agreed that the proximity of the condition to the fan meant that one would
feel a lot of air when walking in this area. Tr. 225. However, while conceding that the air
would be blowing, that would be true in ideal conditions, and one cannot assume that the fan will
be running in an emergency situation. Tr. 225. He added that the fan itself could be an ignition
source. Thus, in the Inspector’s S&S analysis, it was considered that the fan itself could possibly
be on fire, asserting that he considered that to be a reasonable likelihood. Tr. 226. Rather than
the branch line foretold to be coming, incorrectly, by the cones, the miners were actually coming
up to two lifelines. (See the vertical line in Gov. Ex. 2E). This misinformation caused the
inspector to be concerned that the miners could proceed toward the number 2 section instead of
going to the exit. Tr. 229. However, the Inspector agreed that within 100 feet of such a wrong
turn, escaping miners would come upon the flat end of a cone and then be alerted that they were
going in the wrong direction. As noted by Brody’s Counsel, if it were assumed that the miners
came to the same intersection and there had been no cones present, there is no requirement for an
indicator to direct the miners to the exit. Tr. 230. Thus, under that scenario, miners could take
the wrong turn at that intersection. However, the Court notes that the hypothetical falls short in
at least two regards. First, the hypothetical presents a situation which did not exist. Second,
having the wrong information at the point of intersection is worse than having no information at
that point and therefore the point attempted to be made by the hypothetical is rejected.
The cross-examination continued with the now-familiar but, as discussed above, rejected,
theme of noting other existing safety measures. Escapeway drills were presented as one example
of this approach in attempting to show that the violation was not S&S. The inspector agreed that
such drills, which are done quarterly, would pass the cited area. Tr. 231. The inspector also
agreed that when a miner feels the cited cones, he should then be able to feel another indicator,
namely a rigid coil, when arriving at the branch line, which signals that there is a refuge
alternative there. His notes did not indicate whether any rigid coil or SCSR indicator was also
there as additional misinformation. Tr. 236. Redirect brought forward that in an emergency, if
the fan was down, smoke could be traveling in an outby direction and an explosion can cause air
direction to reverse. Tr. 237. Further, if the fan was down and miners were in a smoke-filled
environment, miners would not necessarily know that they were close to the fan. Tr. 237. Upon
inquiry by the Court, the inspector confirmed that in an emergency situation, with smoke and an
inability to see, miners faced with those conditions will be in a tense, near-panic, state of mind.
The inspector also concurred that it is impossible to predict how individual miners will react
upon coming upon cones which mislead them.

36 FMSHRC Page 2968

In its defense, Brody called Mr. Anthony Gibson Jr. Gibson is presently an outby
foreman at the mine. Tr. 243. He also has long coal mining experience. The citation in issue
was issued to Mr. Gibson. He confirmed what had been suggested during cross-examination;
that the fan cited lifeline portion was about 100 feet from the fan. The slope was approximately
400 feet away. Tr. 247. R Ex. 26.17 Gibson confirmed what was not disputed, if running, the fan
will be producing a lot of air. Tr. 253. Exhibit R 2C, a record of the mine’s fire drill, was also
identified by this witness. The cited drill occurred on October 18th and this compares with the
citation’s issuance date of October 22nd of that same year. Gibson also confirmed what the
citation notes: there were no refuge alternatives nor SCSRs at the location where the 2
consecutively installed cones indicated an upcoming branch line, and he commented that it
would make no sense to have those at that location because it is so close to the fan. The Court
would observe however that this absence could heighten the potential for confusion and/or panic,
because the cones would be telling the miners something which was at odds with the fan volume,
assuming of course that the fan was not down. It is true that there was no spiral coil, another
indicator of a rescuer cache or a shelter, but as with the comment just made, that could bring
about further confusion. Miners would need to have the presence of mind in an emergency to
either ignore the information signaled by the cones or having relied upon them, then disregard
what the cones indicated when no spiral coil was located. In the Court’s view this is asking a lot
for miners to do in the face of an emergency.
Mr. Gibson did not believe the violation was S&S, asserting that, “even in a smoky
environment – if the fan was off and I was in a smoky environment that close to the fan, if I had
even been there once before, I will know where I was. And . . . even if I did take the wrong
direction - - going the wrong direction on the other lifeline, there would be reflectors on the other
one. There would be a another cone, with a hundred feet, that I would run into that would show
me I was going the wrong way . . . there would be no way that I could - - I could see any
confusion.” Tr. 258. However, on cross-examination, Gibson conceded that lifelines and
indicators, such as cones, have to be accurate so that miners can get out of the mine. Tr. 259.
He also agreed that the indicators need to be “dummy proof” so that miners are sure they can
escape and that it is a simple matter to be sure that the proper indicators are on the lifeline. Tr.
259-260. In response to a question from the Court, Mr. Gibson acknowledged that in the course
of conducting the fire drills, just a few days before this violation was detected, people would
have traveled through that area and that, despite the fire drill occurring on three separate shifts,
no one for Brody noted the misdirecting cones. Tr. 263-264.
The Court has determined that this violation was S&S. While it is true that, as Brody’s
Counsel pointed out, no cones were required at the area where the violation was cited, the key is
that cones were there and that they provided false information. Whether near the exit or not,
misleading information, installed by Brody at that location, is inherently dangerous in the context
of a mine emergency. That context, a mine emergency, is the means for evaluating whether a
violation is S&S. A major deficiency with the Respondent’s S&S outlook is that it does not
sufficiently account for the conditions when the standard comes into play, and the aspect of
panic. Thus, upon review of all the evidence, the Court concludes that there was a discrete safety
17

Note: This exhibit is out of order in the Respondent’s exhibit notebook and therefore
may be hard to locate. It is numbered however, as R 26.

36 FMSHRC Page 2969

hazard contributed to by the violation and a reasonable likelihood that the hazard contributed to
will result in an injury. That there would be a reasonable likelihood that the injury would be of a
reasonably serious nature cannot be disputed.
The proposed penalty for this was assessed at $16,867. Taking into account all of the
evidence, the Court concludes that a penalty of $12,650 is appropriate in this instance.
Citation 7167387 from Docket No. WEVA 2013-370
Inspector James Jackson also testified about this citation. The section 104(a) citation,
alleging a violation of 30 C.F.R. § 75.380(d)(7)(vii) states: “The number 2 section primary
escape way (sic) life line (sic) is not being maintained as required. The life line was equipped
with 2 consecutively installed cones to indicate an up coming (sic) branch line. There is no
branch lines (sic) or connecting life lines in this area. This condition exist (sic) at 2-B belt break
7 in the primary escape way. Standard 75.380(d)(7)(vii) was cited 5 times in two years at mine
4609086 ( 5 to the operator, 0 to a contractor).” Gov. Ex. 3A.
The Inspector issued this citation on October 23, 2012. There was no stipulation to the
fact of violation for this citation. Tr. 278. As with the previous citation for which this inspector
provided testimony, he created a simple drawing to depict the violation in this instance. Gov.
Ex. 3 F. In this instance, like the previous one, there were 2 consecutively placed cones, but here
there was no connecting lifeline or branch line. Tr. 279. The drawing included a dotted line to
depict what one should expect to find, an upcoming lifeline or a branch line, but no such line was
there. Tr. 280. Thus, had the cones been properly placed, that line would have been present.
Thus, like the earlier matter testified to by this Inspector, this was another situation where the
cones conveyed false information. As two miners were working in that area, the Inspector
marked that as the number affected. In the same fashion as the earlier cone violation, the
Inspector’s concern was miners encountering information, information they are trained to rely
upon, but that information was false. Tr. 282-283. This is serious business because the cones
tell the escaping miners to start looking for an upcoming lifeline or branch line, but neither was
present. It bears repeating that the Inspector believed that this condition was reasonably likely to
cause an injury because when the standard applies miners will be in smoke, unable to speak with
one another because they are wearing SCSRs, and at risk for panicking. The cones, as noted,
will tell them to start looking for something, but they will find nothing is there and this will
operate to delay their escape. Tr. 283. The negligence was marked as moderate because this
condition was obvious and the operator is required to travel and examine this area weekly. As a
mitigating factor, he did take into account the mine’s assertion that there used to be a branch line
at that location.
Upon cross-examination, it was suggested that there were caches of SCSRs inby of the
cited location, but the Inspector could not state the number of such caches, whether one or more.
For refuge alternatives, the Inspector could not state if there was more than one. Tr. 288. It was
also contended that there was a “space” between the 2 consecutively installed cones, the import
of that being that, if such a space was present, that space would indicate that there was no branch
line coming up. Tr. 289. The issue of the extent of the space between the cones was part of
Brody’s defense, although in later testimony from the Inspector he stated that Mr. Gibson never

36 FMSHRC Page 2970

raised any contention about the presence of a space between the cones.18 Inspector Jackson
stated that a small space, for example ¼ of an inch, would still announce to miners that a branch
line a life line was in this area, but a space of 6 inches would be sufficiently apart so as to not
mislead miners. Tr. 290. Presented as a mitigating factor, the Inspector could not recall any
other conditions outby the cited problem that would tell miners that they were going the wrong
way. Tr. 294. Further, the cones were facing in the correct direction. The issue was not one of
direction, rather it was of misinformation. Miners coming upon the two cones would expect that
a branch line would be present and they would try to find that branch line, an impossible task as
it did not exist there. While Brody’s Counsel suggested that miners in that circumstance would
simply proceed on, the Inspector did not agree. He expressed that the false indicators would
slow the miners down and thereby delay their escape, looking for the non-existent branch line.
Tr. 295-296. As before, Brody referred to considerations which it viewed as countering the S&S
designation, such as that escapeway maps were present at different locations and that the
inspector found no deficiency with them.
On redirect, the Inspector noted that miners are trained to look for a branch line once
they come upon such indicator cones. And this is significant because they will be looking for
that branch line and the SCSRs there. Finding them, they might switch out to a fresh SCSR or
carry one as a spare as they continue their escape. Tr. 299.
Anthony Gibson testified for Brody on this matter as well. It was his contention that the
cones were close but that there was space between them. Later, he stated that the space was
about six to eight inches and then added that there was “a little bit of space between them.”
Tr. 312. A point being made through this witness was that the cones were the only
misinformation, in that there were no other indicators, beyond the cited cones, telling miners that
a SCSR cache or a refuge alternative ahead. In this instance, Gibson stated, the exit to the slope
or to the elevator was around 3500 feet. Considerations similar to those raised with the earlier
cone issue were then brought up. These involved things like the presence of up-to-date mine
maps. It was Brody’s contention that the miners’ knowledge of maps shows that those miners
would have known about things like the actual location of the SCSRs.19 Thus, Brody was
asserting that the miners would know better and ignore the erroneous information conveyed by
the cited cones. The Court is not convinced. In an emergency, especially with limited or no
visibility due to smoke, it is more than a stretch to believe that miners would rely upon their

18

It is noted that the contention that there was a space is at odds with Brody’s excuse that
there used to be a branch line there. If in fact that was the case, the cones would not have been
spaced. Also, as stated by the Inspector, in response to a question from the Court, these cones
stay put. That is, they are locked in place on the line. Tr. 300.
19

In this regard, with Mr. Gibson noting that there were SCSRs some 10 to 11 breaks
inby of the cited location, he agree that was over 1,000 feet away. Tr. 333. Gibson also backed
away from the usefulness of maps in an emergency situation with a smoke-filled environment.
Tr. 334. Thus, he conceded that the cones, as tactile indicators notify miners of where lifesaving materials are located along a lifeline and that coming upon such cones, a miner will be
looking for the branch line to SCSRs. Tr. 334-335.

36 FMSHRC Page 2971

knowledge of the mine maps to tell them where the SCSR caches are, and ignore what the cones
told them.
Despite all the other ancillary matters raised, the defense ultimately rested upon the idea
that there was a space between the cones and for that reason, the space, miners would not think
there was a nearby branch line. Gibson’s perspective went further, however, because he did not
believe that there was any safety hazard even if the cones had no break between them. Tr. 324.
His reasoning was that, because just inby the cited area there was a SCSR cache and therefore
the miners would realize there would not be another cache so close by. In response to questions
from the Court, Mr. Gibson stated that he did not know why the cones were present at the cited
location. Tr. 326. Although not mentioned during his direct examination, Mr. Gibson, in
response to a question from the Court, stated that he did tell the inspector that there was a space
between the cones. He further related that the inspector responded that the cones were too close
together. Tr. 328. Gibson agreed that the inspector’s notes make no mention that Gibson
claimed there was a space between the cones. He also agreed that coming upon the cones, even
if six to eight inches apart, would be out of the ordinary. Tr. 331. Also, he agreed that the cones
are tactile sensors needed when visibility is limited and that if a miner is confused during an
escape that will cause delay. Tr. 342. Diminishing his objectivity, Mr. Gibson maintained that,
because of their training, during an emergency situation, even though dealing with poor visibility
from a smoke-filled environment, and with the possibility of injuries, miners will not be under
stress or duress. Tr. 342-343.
The Court concludes that this violation is also significant and substantial, a conclusion
largely based on the reasoning presented in the other cone violation. Missing information is one
thing, but imparting incorrect information is, in the Court’s estimation, worse. Did the incorrect
information present a contribution to the discrete safety hazard and was there a reasonable
likelihood that the hazard contributed to will result in an injury of a reasonably serious injury?
Based on the credible evidence, the Court concludes that the answer is “yes.” The violation
clearly would operate to make matters worse, when evaluated in the proper context: a mine
emergency escape.
The proposed penalty for this was assessed at $4,689.00. Taking into account all of the
evidence, and applying the statutory criteria, the Court concludes that penalty remains
appropriate and it is so imposed.
Citation 7167388 from Docket No. WEVA 2013-370
Inspector Jackson testified for this violation also. For this matter, Brody has conceded
the fact of violation and that the violation was correctly determined to be of moderate
negligence. Tr. 345-346. The Citation stated that the “primary escape way (sic) life line (sic) for
the number one section is not being maintained in a safe condition. The life line along the
number 2 belt was equipped with 5 directional cones at intervals not exceeding 100 feet with the
tapered section pointing outby. This would give miners the indication that they are traveling in
the wrong direction during a mine emergency.” Gov. Ex. 4A. Issued on October 29, 2012, the
citation listed 30 C.F.R. § 75.380(d)(7)(v) as having been violated. As before, the Inspector
made a sketch of the cited condition, as a visual aid. The drawing, Gov. Ex. 4D shows a line,

36 FMSHRC Page 2972

depicting the lifeline and the inby and outby direction references and the 5 cones, each with the
blunt or wide, flat end first, as one would encounter if moving in an outby direction. The cones
were therefore facing in the wrong direction, a condition Brody has conceded. To be clear, the
flat end should not be encountered first; a miner escaping should feel the narrow end first.
The cones’ direction is important, as noted earlier, because a miner trying to escape from
a mine in an emergency would encounter the base end of the cone first, not the tapered end. Tr.
349-350. Gov. Ex. 4C. The mine was operating at the time of the citation’s issuance, engaged in
second, or retreat, mining. Tr. 350-351. As with the other violations of this nature, the Inspector
was concerned over the impact of false indicators on the lifeline. In this instance, the cones
direction would tell the miners, by their training, that they were moving in the wrong direction,
when in fact they were not. Tr. 352. For each of these lifeline citations, one must assume that
they are, by their purpose and design, being employed in an emergency. Under such
circumstances it must be presumed that there is smoke, making visibility poor to nonexistent,
with miners wearing SCSR’s and lacking any real ability to communicate orally with one
another. In this instance with the five cones facing in the wrong direction, miners would travel
nearly two football fields (600 feet) before coming upon a cone telling them that they were in
fact traveling in the right direction after all. Tr. 352. Although Counsel for Brody agreed that
the assumption in this situation is the presence of an emergency, there was an objection to the
fact that this is a gassy mine. The Court overruled the objection however because the mine’s
gassy nature was raised in the context of the inspector’s view that there was a reasonable
likelihood of an injury. The Brody Mine is classified in the highest category of methane
liberation and for that reason it is on a five-day spot inspection. This means the mine has a
methane inspection every five days. The mine has a history both of ignitions and methane
inundations. It was the Inspector’s view miners not being able to escape in an emergency if they
have delays will cause fatalities. Tr. 353.
Of course the Inspector could not predict how each miner would react when coming upon
a cone telling that miner he is going in the wrong direction, but he considered an escape to be
panic situation and if he came upon such a cone, he would try to find the right direction. In this
instance it would tell him to turn around. Doing so, relying upon the cones which are to be relied
upon, would send him in the wrong direction. If miners then can’t escape due to false indicators
on the lifeline and the delays resulting from that, death due to CO poisoning, smoke and fire
could be the outcome. Tr. 354.
Upon cross-examination, Brody’s Counsel tried to make inroads upon noting that, while
the citation refers to five cones facing the wrong direction, that number was not mentioned in the
inspector’s notes. Tr. 360. However, upon consideration, the Court credits the Inspector’s
testimony that he found five (5) such cones with the wrong direction indications.20 Another
point made was that escaping miners would have come upon a number of cones correctly
indicating the direction to escape. Tr. 356. However, the Inspector did not adopt the suggestion
20

This is an opportune moment to note that the Court reviewed the transcript carefully
and considered all contentions made in connection with this case. That a particular contention
may not be expressly this decision does not mean that it was not considered. Instead it indicates
that the Court decided that it was unnecessary to speak to some matters.

36 FMSHRC Page 2973

that one would rely upon the previous cones’ information and proceed in the same direction,
noting that one would need to travel some 200 feet before encountering the next cone. Tr. 366.
This violation was clearly established as S&S. 5 cones in the wrong direction is a major
shortcoming. The Court’s previously explained rationale in support of the S&S finding fully
applies in this instance.
Upon consideration of all the evidence, and each of the statutory criteria, the Court
concludes that the proposed penalty amount of $12,248.00 remains appropriate and it is so
imposed.
Citation 7167389 from Docket No. WEVA 2013-370
In this instance, Brody again stipulated to the fact of violation. Tr. 373. The issuing
inspector, Inspector Jackson, again testified regarding this citation. The Citation, No. 7167389,
issued October 29, 2012, listed the condition or practice as: “[t]he primary escape way (sic) life
line (sic) along 2 belt is not being maintained in a safe condition. The up coming (sic) branch
line for the SCSR’s was not properly identified by the two consecutively installed cones with the
tapered ends pointing inby. The primary escape way life line was equipped with four cones with
the base sections in contact to form a diamond shape. Standard 75.380(d)(7)(vii) was cited 7
times in two years at mine 4609086 (7 to the operator, 0 to a contractor). Gov. Ex. 5A.
As with the previous citations he addressed, Inspector Jackson again drew a sketch to
illustrate the violative condition. Tr. 375. Gov. Ex. 5D. Jackson drew a single horizontal line,
depicting the primary escapeway lifeline, with the inby and outby ends marked and four cones,
comprising two diamond shapes on that lifeline. Such an arrangement, the dual diamond
configuration indicates to miners that they are on a branch line, coming up on SCSRs. Tr. 376.
Instead, there should have been two directional cones there, not the double diamond
arrangement. Tr. 386.
The hazard associated with this is “miners not being able to find their proper safety
equipment during a mine emergency for escape.” By miners being misled, thinking that they
were on a branch line and coming up to SCSRs, confusion and delay would ensue. Such
miners’ escape would be delayed as they looked for the expected equipment, equipment which
they have been trained to look for, upon coming upon the double diamond cones. Tr. 378.
Injuries that could occur from such a delay would be CO exposure and smoke inhalation. The
negligence was marked as “moderate” because Inspector Jackson considered the condition to be
obvious. It occurred on the primary escapeway lifeline and this is required to be examined
weekly. Moderate negligence was marked because there was a branch line in the area and the
operator had put the diamond cones on the wrong line.
Upon cross-examination, the Inspector agreed that there was a branch line right after the
double diamond indicator and that there was a double diamond indicator on that branch line. Tr.
384. However, the Inspector did not agree that if an escaping miner comes upon a double
diamond indicator, signaling that there is a SCSR cache, and then, within an arm’s length, comes
upon another double diamond indicator, such miner would assume he was at the SCSR cache

36 FMSHRC Page 2974

line. Tr. 386-387. The Inspector reasoned that once a miner comes upon the double diamonds,
that miner will conclude that he is on a branch line and that such branch line is connected to
SCSRs. In such an event, the Inspector believed that a miner will not reach out for a branch line,
they will conclude that they are already on one. This reaction, the Inspector maintained, is how
the miners are trained to react. Again, the Inspector’s point was that, upon feeling the double
diamond, they will think that they are on the branch line itself. That is what the double diamond
cone arrangement signifies and what the miners are trained to conclude upon coming to that
arrangement. Accordingly, they would not be expecting another line connected to that.
In its defense to the S&S designation, Brody again called Anthony Gibson. He was
traveling with the Inspector and the citation was issued to him. Gibson agreed with the described
diamond configuration of the cones on the lifeline, but added that there was a branch line there,
which led to the SCSRs. Further, there was a proper SCSR indicator on that branch line and the
line was within an arm’s length of the lifeline. While admitting to the problem with the
misleading diamond cones on the lifeline, Gibson did not believe the condition presented a
hazard. His opinion stemmed from the view that the cones wouldn’t tell miners to turn around
nor to go in another direction. Tr. 404. Instead, he believed the miners would reach for the
branch line that was there. The branch itself, Gibson added, was immediately after the double
diamond cones on the lifeline. Further, he stated that a miner, keeping his hand on the lifeline,
would immediately feel the branch line. When miners feel a branch line, signified by the double
diamond cones, one would then run one’s hand along that line to see if the coil is present. Tr.
405. Reflective signs would also be present. Gibson was of the view that the acknowledged
violation did not present a hazard because “it wouldn’t interfere with anything.” Tr. 408.
The Court then asked some questions of the witness. Mr. Gibson agreed that cones serve
but a single purpose: to convey information and to convey that information in the context of an
emergency. Tr. 408-409. Gibson then agreed that it is essential that cones provide accurate
information and if cones provide misinformation or inaccurate information, they are not serving
their sole purpose. Tr. 409-410.
On cross-examination by the Secretary, Mr. Gibson acknowledged that the foreman for
the section is required to examine the area where the condition was found on a weekly basis. Tr.
410. This examination responsibility includes checking to make sure that the lifeline is intact and
the indicators accurate. Surprisingly, when asked what the double diamond configuration means
to him when encountering cones in that arrangement, Gibson stated that if he “had already
traveled a long ways on a primary lifeline, that would not mean nothing to me.” Tr. 411.
The Court finds that this citation, along the reasoning presented above, and upon the
evidence pertaining to this particular violation, was also S&S.
Upon consideration of the statutory criteria as applied to the credible evidence of record,
the Court concludes that the proposed penalty amount of $12,248.00 remains appropriate and
that amount is so imposed.

36 FMSHRC Page 2975

Citation No. 7167393 from Docket No. WEVA 2013-370.
Here also, the fact of violation was stipulated. A section 104(a) citation, issued
November 1, 2012, it listed the condition or practice as “[t]he branch line from the secondary
escape way (sic) life line (sic) to the number 1 section refuge alternative is not identified.
A rigid spiral coil at least 8 inches in length was not provided for the branch line leading to the
refuge alternative on the number one section. Standard 75.380(d)(7)(vii)(B) [the standard cited
in the citation as having been violated] was cited 3 times in two years at mine 4609086 ( 3 to the
operator, 0 to a contractor).” Gov. Ex. 6A.
As he done before, Inspector Jackson drew a sketch of the violative condition. Gov. Ex.
6D. The horizontal line depicts the secondary escapeway lifeline; an arrow on each end of the
line shows the inby and outby directions for that lifeline. The vertical line on the sketch depicts
the branch line in the cited area; the words “branch line” were added to make that clear. It was
the branch line that did not have the rigid spiral coil. Tr. 415. The coil was to be on the branch
line within an arm’s length reach of the lifeline. The hazard is miners not being able to find the
rescue alternative for safe haven in a mine emergency. Tr. 417. A branch line can lead to a
SCSR cache or a refuge alternative. Tr. 434. Miners are trained that, upon coming upon the two
consecutive directional cones, they are to look for the branch line. The branch line was present,
but the spiral indicator, telling them that was not present. Tr. 417. The spiral indicator, or coil,
tells the miners that there’s a refuge alternative at the end of the branch line. That refuge
alternative will have air, food, water, sufficient to allow the miners to survive for 96 hours. Tr.
419. The Inspector marked the violation as reasonably likely for an injury as the missing coil
will cause confusion and along with that, delay in finding it. This can lead to fatal injuries with
the miners being exposed to CO, smoke inhalation or simply delay in exiting the mine, which
delay itself can have adverse consequences. The negligence was marked as moderate because
the Inspector concluded that the condition was obvious. The area is to be examined at least
every eight hours. There was a mitigating circumstance, however, as the refuge chamber
recently had been moved up with the section. Tr. 420. The refuge alternative and the branch
line had been moved up with the section, but the mine did not install the coil back on the branch
line after doing that. Tr. 421.
Upon cross-examination, it was noted that refuge alternatives came into existence around
2007, following the Sago and Aracoma mine disasters. Tr. 424. Following the approach taken
in earlier cross-examinations, Brody noted that the miners’ first goal, if possible, is to get out of
the mine. That is to say, being able to exit the mine is a better alternative than resorting to a
refuge alternative. It was also noted that the double, diamond shape, cones were present at the
branch line and that a miner, feeling those cones, will know that he is coming to a branch line.
The Inspector could not agree, however, that if the miners know that the first branch line is for a
refuge alternative, then they will know that, regardless of whether the rigid spiral coil is present.
Tr. 427. The Inspector responded that he could not assume what miners will think in a panicked
environment in that circumstance and that it’s been his experience that miners do panic in an
emergency. Tr. 427. Brody’s attorney suggested that miners might not panic but rather “rise
above the situation and behave in an admir[able] fashion.” Tr. 429. However, the Court would
observe that safety standards, including the one in issue for this admitted violation, are not

36 FMSHRC Page 2976

designed, nor is it their purpose, to assume that miners will act with wisdom and valor in
emergencies. Rising above the situation is certainly not part of the S&S analysis either.
As mentioned, Brody’s cross-examination focused on what the court considered to be
ancillary matters: that this was the secondary escapeway and miners are trained to go out the
primary escapeway, that some miners will have CO detectors on them and, by that reasoning,
“that addresses that” (i.e. the hazard of CO). Tr. 430. A theme of Brody’s cross-exam was that
miners would know better even without a coil present. That is, if the miners knew that the first
branch line on the way out was a refuge alternative, coil or not, they would know the refuge was
there. However, the Inspector responded that, with no coil, he could not claim to know what the
miners would think. Tr. 435.
In its defense, Brody called Derek Morrison, a former employee at the mine. Tr. 436. At
that time he was the mine’s assistant safety director. Tr. 444. He was issued the citation and
agreed the safety coil was not present. Tr. 445. The branch line involved was for a refuge
alternative. Through miners’ training, Morrison asserted that miners knew there was no other
branch line between the section and that branch line. Tr. 445. As before, Brody offered, through
this witness, that there is a sign where this branch line connects to the lifeline. Morrison stated
that the double cones inform the miners that there is a branch line equipped with either a refuge
shelter or a cache of SCSRs. Tr. 447. In effect, Morrison asserted that the absence of the coil
would have no effect because the miners were trained that upon coming upon the double cones,
they knew there was a shelter. In fact, he agreed that the miners would know this even without
any training because they ride by that area every day. Tr. 447.
The Court concludes that this violation is the factors raised by Brody are not pertinent to
the Mathies analysis. The absence of the spiral coil presents a measure of danger contributed to
by the violation, and it certainly contributes to the likelihood of an injury. The absence of the
coil cannot be dismissed as a negligible matter, especially when measured by the circumstances,
a mine emergency evacuation, to have the expected coil absent. The Court concludes that the
violation is S&S.
Upon consideration of all the evidence in this matter and application of the statutory
criteria and that the refuge chamber recently had been moved up with the section, the Court
concludes that $13,703.00 is an appropriate penalty in this instance and it is so imposed.
Citation 7167405 from Docket No. WEVA 2013-564
Inspector James Jackson also testified regarding this citation, which was issued by him on
December 4, 2012. The condition or practice identified in that section 104(a) citation stated that
the “secondary escape way (sic) life line (sic) to the number 3 section is not being maintained as
required. The life line is equipped with two consecutively installed cones to signify an up
coming (sic) branch line. There is no branch line in this area. This location is where the number
3 section secondary connects to the number 2 section secondary life line. Standard
75.380(d)(7)(vii) was cited 6 times in two years at mine 4609086 (6 to the operator, 0 to a
contractor). Gov. Ex. 7A. Brody stipulated to the fact of violation.

36 FMSHRC Page 2977

Inspector Jackson explained that the standard requires two directional cones
consecutively installed on the escapeway lifeline to indicate an upcoming branch line. Here, the
cones were present, but they should not have been there, as there was no upcoming branch line.
The Inspector also drew a sketch of the violative condition to help the Court visualize the
situation. Per the sketch and his testimony, the cones were present on the secondary escapeway
lifeline, and this appears as the horizontal (and labeled) line on the sketch. A vertical line, also
representing the secondary escapeway is also part of this drawing. Thus, the two lifelines
connect at that intersection but it is all part of the same lifeline. Tr. 458. Gov. Ex. 7D. As noted
earlier, a branch line is to lead to either SCSRs or a refuge alternative. Tr. 460. Gov. Ex 7C is
also helpful to understanding this admitted violation. At its top, the drawing at Gov. Ex. 7C
shows two gloves around the lifeline and the two indicator cones right next to those gloves. The
inspector observed the cones, but unlike the drawing at Gov. Ex 7C, there was no branch line
immediately thereafter. Tr. 460.
Again, the Inspector’s safety concern was confusion occurring during an emergency from
the false indicators. The indicators, falsely, would tell miners there was a branch line coming up
and as a consequence they will be looking for either SCSRs or a refuge alternative. Not finding
that will create confusion and delay in escaping the mine. Tr. 461. In this instance, instead of a
branch line, the miners would come upon a secondary escapeway lifeline. In the Inspector’s
opinion the misinformation will cause miners to become confused and thereby delay their escape
by diverting time looking for emergency equipment. Tr. 462. Such a delay can result in fatal
injuries from smoke inhalation and CO poisoning. It needs to be remembered that, coming to the
cones, the miners, not finding the expected branch line, will be confused and they will stop. That
is not all. In an emergency situation, when a lifeline is being used, miners are not going to be
able to see and the misinformation will cause them to lose their orientation. They will be
uncertain which way to proceed. If they take out their mouthpieces to try to communicate with
other miners in that situation, they will die. Tr. 462.
The Inspector marked the negligence as moderate because the condition was obvious and
in an area required to be examined every eight hours. Examining the lifeline is one of those
responsibilities.
Upon cross-examination, the Inspector agreed that this condition was very similar to the
violation he found for Citation 7167386. One distinction is that this citation, 7167405, involves
a secondary escapeway. Tr. 463. Again, the approach of Brody’s Counsel was to consider
circumstances that were different from those cited. For example, it was pointed out that if no
cones had been present, there would not have been a violation issued. Tr. 464. Of course, this
ignores what was present and the misinformation being imparted by the cones’ presence.
Consistent with this observation, the Inspector did not agree with the assertion that the presence
of the cones did not increase the hazard. Instead the Inspector stated that the cones would cause
more confusion brought about by miners looking for a branch line. Tr. 465.
Mr. Scotty Watkins was called by Brody in its defense of the S&S designation. At the
time of the citation’s issuance Watkins was employed at the mine as an outby electrician. Tr.
471. Mr. Watkins was the individual to whom the citation was issued. Examining Gov. Ex. 7D,
after noting an inconsequential error in the sketch, Watkins stated that both lines, the vertical and

36 FMSHRC Page 2978

horizontal, depicted, were secondary escapeways, an undisputed observation. He agreed that
miners working on that section would travel the cited area two times per shift. As with other
witnesses for Brody, Mr. Watkins did not believe that the misinformation conveyed by the cones
presented a discrete safety hazard because of the miners’ training. Miners are taught, he said,
that if they don’t come up to what is expected, they are taught to proceed on. Tr. 477. At the
intersection, there is no indicator which way to proceed, right or left. Instead, if the wrong
direction is chosen, one will continue until a cone informs the miners they are going the wrong
way. Tr. 477.
During Mr. Watkins’s cross-examination, he agreed that in an emergency escape, the
only indicator miners have is the lifeline with the indicators. Tr. 479. He also agreed that delay,
that is, the longer one is in a mine during an escape, the more likely it will be that one will be
injured. Tr. 479. Nevertheless, it was Watkins position that false indicators would not slow
down miners during an escape because of their training. Tr. 480. In response to questions from
the Court, Watkins reiterated that if one comes upon false indicators, false information from the
cones, miners can ignore what the cones tell them because of their training. Tr. 481. He further
agreed that one of the reasons to ignore the cones is because a miner will come up against
additional cones and that those cones will tell the miner if he is going the correct way or not.
This, as the Court pointed out to the witness, creates a contradiction because Watkins was
simultaneously asserting ignoring the information from the cones in one instance but to then
follow the information from the subsequent cones. Tr.482-483. To this, the witness asserted that
one would be able to rely upon signs and reflectors to orient oneself. Tr. 483. He further agreed
that indicators in the mine, other than the cones, are more reliable sources of information. Tr.
483.
For the reasons, rationale and bases already articulated above, the Court finds that this
lifeline violation is also S&S and of moderate negligence. Upon consideration of the statutory
criteria as applied to the credible evidence of record, the Court concludes that the proposed
penalty amount of $18,271.00 remains appropriate and that amount is so imposed.
Citation 7168854 from Docket No. WEVA 2013-997
Inspector Joshua A. McNeely testified for the Secretary regarding this citation. The
condition or practice section stated that the “lifeline in the active Beaver Mains primary
escapeway is not equipped with two securely attached cones, installed consecutively with the
tapered section pointing inby, to signify an attached branch line is immediately ahead for the
refuge shelter. 15 miners are working on the inby section. This condition would delay miners
trying to escape quickly in an emergency. Standard 75.380(d)(7)(vii) was cited 7 times in two
years at mine 4609086 (7 to the operator, 0 to a contractor).” Gov. Ex. 9A.
Brody stipulated to the fact or violation and to the designation of moderate negligence.
The Inspector explained the value of lifelines in getting miners safely out of a mine in an
emergency, stating “it's touch. It's -- in an emergency situation, you're probably not going to be
able to see good, smoke. You're not going to be able to communicate if there's smoke and dust
because you have your SCSR on. And it provides them the feedback, the comfort of knowing

36 FMSHRC Page 2979

that I've got ahold of this, and it's got the required stuff that I've been trained about, then I can get
to the surface. Or get to a safe location safely.” Tr. 499.
The section cited by the Inspector requires double indicator cones before branch lines.
These serve to make the miners aware that there is a branch line, where there will be refuge
alternatives or SCSRs. Tr. 500. On Gov. Ex. 9C the Inspector highlighted, in pink, the required
double cones. Similarly, he marked the branch line using the pink highlighting. The spiral coil,
having a snake-like appearance, is also depicted on that pink branch line. The same diagram
shows another branch line, located right above the word “exit” on Gov. Ex. 9C, and the inspector
highlighted that line in blue, adding that it shows the two diamond-shaped cones, indicating a
SCSR cache. Tr. 502. The double indicators alert miners that there is a branch line coming up.
Therefore, the blue highlighting identifies both the directional cones and the diamond indicators,
alerting miners of the nearby SCSR cache. Tr. 504. Referring again to Gov. Ex 9C, the cited
violation pertains to the pink highlighted cones on that exhibit. Those cones were not present
and, as noted, Brody has stipulated to the violation. This area was about three cross cuts outby
the loading point of the section, which was approximately 300 feet. Again, the refuge chamber
is intended to provide a short term safe harbor for miners if they are unable to exit the mine. Tr.
507.
Inspector McNeely stated that the missing double cones could cause delay in miners
trying to escape or seeking refuge. The hazard is miners not being able to locate the refuge
chamber quickly in an emergency. Under such emergency conditions, with smoke and dust,
confusion, panic and disorientation can occur. The lack of the equipment, cones here, that
miners are trained to rely upon, can cause confusion. The Inspector expressed that if miners
using the lifeline don’t come upon the double cone indicator, they will simply keep traveling.
Tr. 510. There is no guarantee that, with no double cone indicator present, miners will still reach
out and feel for a spiral coil. The point made by the Inspector was that with the double cone
indicators present, as they are supposed to be, a miner will know there is a branch line, and that
will tell him there is either a refuge alternative or a SCSR cache present. Tr. 511. Thus the
cones alert the miner that nearby he will find the spiral coil and then the refuge or the SCSRs.
On cross-examination, the Inspector acknowledged that the coil was present on the
branch line. Tr. 516. The sign indicating the location of the refuge was present as well and the
mine maps were up to date, all matters which have a familiar ring to Brody’s defense in these
matters. However, the inspector could not agree with the conclusion suggested by those things,
that in an emergency it was reasonably likely that miners would have passed this first refuge
alternative as part of an attempt to get out of the section and the mine. Tr. 519. Panic or injuries
might cause miners to go to the refuge shelter first.
Another theme of Brody was that miners would employ judgment in an emergency
situation. In this case, it contended that the miners would still feel the branch line and their good
judgment would tell them to “at least feel to the right to see what the branch line led to,
especially if they were looking for a refuge alternative [ ].” However again the Inspector
couldn’t predict what feeling the branch line would tell miners to do if they are panicked, scared
and can’t see. Tr. 521. The directional cone indicators, on the other hand, tells them without any
doubt and therefore they don’t have to think about it; they will know that there is something

36 FMSHRC Page 2980

present which will help them. Tr. 521. Later, the Inspector added that in an emergency
situation, and with no cone indicators present, it was his view that miners could go right past and
not realize there was a branch line. Tr. 531. The Court would add that Brody’s theme that
miners, because of their training, will think beyond the missing cones may or may not be the
case in a given situation, but in neither event is such a consideration a proper part of the S&S
analysis. It is worth noting, as confirmed by the Inspector, that the requirement is for both coils
and cones. Tr. 533. It should not be lost that these are not alternative requirements.
Brody presented testimony in defense of its contention that the violation was not S&S,
calling Kevin Webb, Sr. Tr. 539. The citation, 7168854, was issued to him. Mr. Webb thought
there was one directional cone on the lifeline, just before the branch line. He believed that a
miner would still know he had come upon the branch line, despite the missing cone, or cones,
because he would feel that branch line. Such a miner would then reach over and learn the type of
branch line that was there; a coil indicating the presence of a refuge chamber; two diamond
cones indicating SCSRs. Tr. 543. In this instance, it would be a refuge chamber and it would be
about 400 feet off the section. With some initial hesitancy, he did not believe that the absence of
a cone would contribute to a safety hazard, meaning that he did not believe that the violation was
S&S, stating: “No. It could - - well, I don’t think so.” Tr. 545-546. This view was based on the
view that “Well, you’re always going to escape. I mean, the cone was there to keep you going to
the outside.” Tr. 546. Nor, did he feel that the violation would create delay, again “because
you’re going to the outside. Tr. 546.
On cross-examination, Mr. Webb agreed that if miners are in need of a refuge chamber,
that is because they are unable to escape and that this could be due to a blocked escapeway or
because there are injured miners who cannot be carried out at that time. He also agreed that
cones provide tactile feedback and are meant for conditions when miners can’t see during an
escape. Tr. 548. While repeating that they are trained to go to the outside as quickly as possible,
delay in accessing the refuge alternative, when exiting the mine is not an option, can mean the
difference between life and death. Tr. 549-550. He also conceded that panic may attend an
emergency situation in a mine in the event of fire or an explosion. Tr. 550. The two cones, he
agreed, if present, tell escaping miners that there is a branch line ahead. Tr. 551.
The essence of the defense is that miners will be holding onto the lifeline as they escape
and even without the cones or with just one cone, they will still feel the branch line and therefore
they will be informed and no delay will occur. The problem with Brody’s defense is that it asks
not only that these other safety considerations be taken into account in the S&S analysis, it
effectively seeks to negate the purpose of the cones or coil, as the case may be, in the analysis, as
if those safety requirements are superfluous. But, in the Court’s view, such an analysis sidesteps
that the test for S&S is whether the violation contributes to the hazard and the Court concludes
that by the escapeway not being equipped with two securely attached cones, installed
consecutively with the tapered section pointing inby to signify an attached branch line is
immediately ahead for the refuge shelter, does so contribute and that there is a reasonable
likelihood that the hazard contributed to will result in an injury.

36 FMSHRC Page 2981

Accordingly, the Court concludes that upon consideration of all the evidence in this
matter and application of the statutory criteria, that $5,683.00 is an appropriate penalty in this
instance and it is so imposed.
Citation No, 8155914 from Docket No. WEVA 2013-1055.
Inspector Jack Hatfield was recalled for this matter. Issued on April 8 2013 and served to
Kevin Webb, Brody mine foreman, the condition or practice section of the section 104(a) citation
provided that the “Strata Life Shelter21 provided for the 1 Section Panel is not being maintained
for the miners to safely use during an emergency. Fallen, broken and sharp edged mine roof
material measuring 8ˈ[feet] long by 4.5ˈ[feet] wide is found 29ˈ[feet] away from the access door
of the shelter. This area of deployment has to be kept clear, according to the clearly observed
sign stating, 42ˈ [feet] to be kept clear on the deployment side of the shelter. In a smoke filled
entry, the workers would deploy the tent and then rupture the bottom of the tent while trying to
enter the shelter without seeing the fallen slate. Standard 75.1506(g) [the standard cited in this
instance] was cited 1 time in two years at mine 4609086 (1 to the operator, 0 to a contractor).”
Gov. Ex. 11A. There were no stipulations for this matter.
The Inspector’s concern was a rupture of the shelter tent. Depending on the size of a
rupture, the conditions when it was being deployed, and other factors during an emergency, the
shelter may not function effectively, defeating its purpose. Tr. 564. The manufacturer-supplied
instructions advise that “where the fresh air bay is positioned should be kept clean and free of
any debris that could hinder the unit’s deployment.” Tr. 565. Inspector Jackson stated that he
“observed fallen, sharp-edged mine roof material that had fallen on the deployment end of the
refuge alternative.” Tr. 567. He found those sharp materials at a location 29 feet back from the
initial deployment point, meaning that the tent was exposed to such sharp materials for 13 feet,
the remaining length of the tent deployment length. Tr. 569. It was his opinion that when
dragging the tent over the sharp materials they would cut the tent floor material as miners in the
tent would walk over those materials and, in his view, such sharp rocks would then come up
through the bottom of the tent. Tr. 570. The cited condition was abated by Kevin Webb’s
direction to have a scoop clean up the area.
The Inspector viewed the alleged violation as S&S because it contributed to the hazard of
men being exposed to carbon monoxide gas and would delay workers from entering the shelter.
The need to remove the sharp rock before deploying the tent and, in doing that, exposing
themselves to cuts to hands and wrists in that effort, were other factors of concern. Tr. 572. He
marked the injury severity as fatal, on the theory that, unaware that the tent had been cut, miners,
having removed their SCSRs once inside the tent, would be subject to CO entering it. In sum,
the Inspector considered the violation to be reasonably likely because “there was a confluence of
factors, . . . having to pull the tent out over top of the rocks. You’re in smoke. I’m looking at it
from the standpoint that it’s - -you know, it’s more than possible . . . [with] that rock left there . .

21

A life shelter, also referred to as “refuge alternative,” is a large life-saving piece of
equipment, which contains oxygen, food, carbon dioxide scrubbers to scrub out exhaled carbon
dioxide, and water, all sufficient to sustain workers’ lives for a minimum of 96 hours. Tr. 558.

36 FMSHRC Page 2982

. that they would slice their tent . . . dragging a tent over top of [the sharp rock] . . . and then
walking inside the tent and stepping on the unseen rock.” Tr. 575.
Inspector Hatfield considered the negligence to be moderate, as examining the shelter is
part of the preshift check and this includes checking for fallen roof rock. He could not determine
exactly how long the condition had existed, but believed it had been longer than since the last
preshift and he believed that it may or may not have been something noted in a preshift
examination. However, he believed it should have observed. Tr. 578. According to his account,
Mr. Webb was eager to get the rock out from in front of the shelter. Tr. 580. The Court inquired
as to whether the Inspector noted the number of sharp rocks that were of present concern. He
made no count but suffice it to say that there was more than one sharp rock present. Tr. 581.
Upon cross-examination, Brody’s Counsel inquired about the inspector’s objectivity and
the corollary to that, the absence of bias. In that connection, Brody’s Counsel directed the
Inspector to his notes for that day. See Ex. R 9B. This inquiry was met with rapid and intense
objection by the Secretary’s Counsel. Tr. 584-587. The reason for the Secretary’s objections
became immediately clear, as those notes included these remarks: “Review of Judge Miller’s
decision. i.e. erotica. Very satisfied.” Tr. 587. The Court then took the opportunity to inform
the Secretary’s counsel about the very legitimate ground of bias during cross-examination,
explaining that bias can be explored apart from the particulars of a given citation. General bias is
fair game in cross-examination. Tr. 587- 588.
The Inspector maintained that he was not describing Judge Miller’s decision as erotica,
rather he asserted that “[t]his had to do with a CLR. And I couldn’t spell her name. I mean, her
name - - she’s got an odd name that - - she had tried to get some respirable dust cases settled,
where another operator had tried to settle some S&S determinations on a respirable dust case.
And Judge Miller admonished her and wouldn’t accept the settlement. . . . .” Tr. 588. The
Court stopped the meandering answer, and directed the Inspector to explain what he meant when
he wrote “erotica, very satisfied.” The Inspector responded, “I meant - - it was regarding in
regard to the CLR Hrotica - - Hrotic.” Tr. 589. The Court asked, “That was her name?” The
Inspector responded “No. . . . Her last name - - her last name R - - HROTICA. Her - - that was
her last name. But it was - - it was the decision regarding her - - her determination that the S&S
was going to be reviewed - - be thrown out on respirable dust samples. That’s what that was
about, sir.” Tr. 589.
Perplexed by the answer, the Court inquired of the Inspector why that was part of his
notes. Inspector Hatfield responded, “I don’t have a clue. . . . I don’t know why I wrote that in
there.” Tr. 589-590. He then agreed with the Court’s inquiry whether he was just noting his
satisfaction that the judge was not willing to eliminate the S&S designations. Tr. 590. The Court
observed that “it’s odd to find this in the middle of your notes on the day you’re doing an
inspection.” Tr. 590. Understandably, and appropriately, Brody’s Counsel pursued the remark
further, inquiring of the Inspector if his reference was to the Marfork Coal decision at 35
FMSHRC 738, in which Judge Miller chastised a CLR for agreeing to settle several S&S
citations, modifying them to non-S&S. Tr. 592. Brody’s Counsel argue that this shows bias on
the part of Inspector Hatfield towards writing violations as S&S. Tr. 593. That particular

36 FMSHRC Page 2983

inquiry ended, for the time being, 22 with the Court’s observation that it was up to the Court to
determine if this demonstrated whether the Inspector was predisposed to find S&S violations
wherever possible.23 Tr. 593-594. However, that was not the end of the exploration of bias
regarding this inspector as he was then asked if he wears a hat with Judge Miller’s name
embroidered on it when he inspects coal mines such as Brody. Again, the Secretary objected and
the Court, again, overruled the objection. Tr. 594. Inspector Hatfield acknowledged that he has
a hat and that it has the words “WVU” on it. He then added that “it’s got Judge Miller on the
side.” Tr. 594-595. To stop the Inspector from a rambling answer, the Court directed him to
simply answer the question about Judge Miller’s name on his hat, to which he then answered,
“Yes.” Tr. 595.
Quite legitimately, Brody’s Counsel pressed on with the following exchange:
Q. And you wear the hat with Judge Miller's name embroidered on the side to coal
mines like Brody because you want the mine to know that if you write an S&S citation, you're
going to beat them; right?
THE WITNESS: A. No, sir.
Q. Well, why do you wear that hat -- . . . -- with Judge Miller's name on it?
THE WITNESS: I like the hat. I like the hat. It's a good feeling. It's a 47. It's a cotton
hat. I like the hat.

22

Remaining troubled by the remark in the Inspector’s notes, the Court later revisited the

matter.
23

The Court revisited this rather troubling revelation when the hearing resumed the
following week, on September 29th. The Secretary again objected on the basis that it was not
relevant to the issue of bias. As the Court patiently explained the week before, the subject was
very legitimately an area for exploration of witness bias as a well-recognized area of crossexamination. The Court believes that it was the harmful nature of the testimony which motivated
the Secretary to attempt to keep it out of the record. The Court began by directing Inspector
Hatfield to Ex. R 9B, expressing that, while it considered the Inspector to be a decent man, it
nevertheless considered having a judge’s name on his hat to be an example of bad judgment.
The Court acknowledged that the Inspector was no doubt dedicated to his work but that he and
all mine inspectors still have an obligation to be objective in carrying out their duties and not
become zealots. Moving to the question which caused the Court to raise the matter again, it
directed the Inspector to his notes where he wrote “i.e. erotica.” The Inspector stated that he was
not referring to a person from his office but rather to a CLR, explaining, “[s]he has an odd
spelling for her name.” Tr. 1002. The Court then asked for the name of the CLR he was alluding
to. The Inspector then retreated from the claim about the odd spelling for the CLR’s name and
instead stated “[t]hat’s a nickname I gave her myself, sir.” Tr. 1003. He offered that the CLR’s
name was spelled something like HROVOTIC.” The Inspector could not offer why he so
nicknamed the CLR. Tr. 1004.

36 FMSHRC Page 2984

THE COURT: Well, that's nice. Did the hat come with Judge Miller's name already on
it?
THE WITNESS: No, sir.
THE COURT: Okay. Well, then, come on. What is -- why do you have Judge Miller's
name on the side of your hat?
THE WITNESS: I just had Judge Miller's name put on the side of my hat because she
ruled in the favor of -- on the S&S. But it's just a hat.
THE COURT: Well, it's not just a hat.24
Tr. 595-596.
Brody’s Counsel then returned to the particulars of the citation. While the crossexamination explored various aspects of the conditions surrounding the citation, the Court
considered the questions directed to the tent floor material to be of particular importance. The
upshot of this is that the Inspector could not speak with regard to the construction or durability of
that material. Tr. 604-606.
In its defense, Brody called Kevin Webb back to the witness stand. Mr. Webb was
familiar with the Strata Life Shelter, including the rugged composition of the tent’s floor. Tr.
619-622. He also maintained that the fallen pieces of top were “kind of flat.” It was his opinion
that the tent could have been deployed right over the rock that concerned the inspector. Tr. 624.
Upon cross-examination, Mr. Webb conceded that the instructions for the shelter states that
foreign material or sharp objects that could damage the tent are to be removed. Tr. 626. It is fair
to state that there was a fundamental difference between the Inspector and Mr. Webb on the issue
of whether the rock presented a puncture risk if the shelter needed to be deployed. Upon
questioning by the Court, Mr. Webb did concede that some of the rocks may have been sharp,
but were positioned flat and none of them were sticking straight up, as he recalled. Tr. 630. The
Court also inquired, why, if the conditions were as harmless as he represented, was there a need
to bring in a scoop to abate them. Tr. 631. Webb maintained it was simply faster to use a scoop
although he then conceded that there could have been “somewhat, you know, [of a] potential for
puncture.” Tr. 632. However, although he still believed that the tent could’ve been deployed
over the rocks, he then spoke of a “big hump in the middle of the tent” but that the miners would
probably stay away from the area. Tr. 633. He admitted that the hump did present a possibility
of a rupture to the shelter. Tr. 634. In fact, Mr. Webb, to his credit in testifying truthfully, agreed
that if he had seen the cited materials on the mine floor, he would’ve had them removed. Tr.
636.

24

It was also noted without contradiction that Inspector Hatfield issued approximately
half of the citations in the pattern notice litigated in this proceeding. Tr. 598.

36 FMSHRC Page 2985

The Court concludes that the violation was established, but the government did not prove
the alleged S&S nature of it. Upon consideration of the evidence of record and the statutory
criteria, the Court imposes a civil penalty of $1,000.00.
Citation No. 9000313, from Docket No. WEVA 2014-0620
Brody stipulated to the fact of violation but the S&S designation and negligence
remained in dispute. Tr. 648. Inspector Jack Hatfield was recalled to the witness stand for this
matter.25 The condition or practice section of the section 104(a) citation stated that “[d]uring an
inspection of the 4 Section Panel (001/008 MMUs), it is determined that the section foreman
assigned the task of supervising this coal crew by mine management has not traveled the primary
intake escapeway in it’s (sic) entirety. In the event of an emergency requiring escape using the
primary intake escapeway, there would be unnecessary delays by this crew of workers while
traveling the escapeway and reaching the surface. Standard 75.1504(a)(2) [the standard cited in
Citation No. 9000313] was cited 1 time in two years at mine 4609086 (1 to the operator, 0 to a
contractor).” Gov. Ex 16A. The citation was issued on July 30, 2013.
The section foreman, Mr. Elkins, admitted to the Inspector that he had not traveled the
escapeway in its entirety. Tr. 659. As with the similar violation cited by this Inspector, earlier in
the testimony for this proceeding, the Inspector stated that the standard’s purpose is because the
foreman needs to familiarize himself with the escapeways in order to know the safe routes out,
and to become aware of landmarks, turns, and other areas in the event of an escape. For this
citation too, the Inspector drew on the escapeway map the route for the primary route. Tr. 662668, 671-673. Upon completing his markings on Gov. Ex. 16C, the Inspector agreed with the
Court’s characterization that the foreman had not examined approximately half of the primary
escapeway, which translated into a distance of approximately a half mile to a mile.26 Tr. 668670.

25

The Inspector began his testimony with the first day of his E01 inspection at the mine,
which was about July 17, 2013, a date two weeks before the citation to be discussed. An
objection, on materiality grounds, was made. The Secretary advised that the testimony was
offered as “go[ing] to the larger issue [ ] of pattern.” Tr. 653. The objection was sustained with
the Secretary directed to focus on the particular citation. The Secretary then asserted that it
wanted the testimony of the earlier meeting for the purpose of establishing negligence associated
with Citation No. 9000313. Tr. 655. A single question was permitted as to whether the
individual to whom the citation was served was present on July 17, 2013 and advised by
Inspector Hatfield about the S&S nature of violations of 30 C.F.R. §75.1504(a)(2). The
Inspector stated that the individual was not present, ending that line of questioning. Tr. 656.
Subsequently, Ex 14B, which was offered but, per the Court’s ruling not admitted, was included
in the record, in a separate envelope, for purposes of appeal only. Tr. 689.
26

There is no need to precisely determine the distance not traveled. Whatever its exact
length, it was significant, not inconsequential. Tr. 669-670.

36 FMSHRC Page 2986

Inspector Hatfield stated that the lack of familiarity would contribute to delays during an
escape. The foreman, per the standard’s aim, must know of landmarks along the route and know
of things such as turns and overcasts, and stoppings with doors, the lack of knowing all of those
particulars can create delays during an emergency. Tr. 673. He marked the injuries as
permanently disabling because if panic ensues, miners might try to talk and succumb to the
smoke and CO. Tr. 673-674.
Upon cross-examination, Counsel for Brody noted that in an emergency miners are to use
the lifeline, the point apparently being that knowing the route is superfluous, as one holds the
lifeline during that entirety of an escape. Tr. 680-681. Questioning then explored whether,
during an escape, sometimes a miner other than the foreman may take charge and that such an
individual may in fact be familiar with the escapeway.27 Tr. 683-684.
In its defense of the S&S charge, Brody called Justin Elkins. Elkins is an experienced
miner. Tr. 693-695. He testified that he had traveled the intake escapeway at a time before
became the foreman for that section, when he was part of the section crew. Tr. 698, 700.
The escapeway had become longer since then, but he could not state exactly how much longer.
On cross-examination, the point was made that when one assumes the duty of foreman, one takes
on a leadership position. Elkins could not remember exactly when he had walked the escapeway
from the No. 4 unit. Tr. 702. The Court observed that the cross-exam aptly noted that a foreman
has a different role and responsibility as compared to one is employed as a roof bolter. Tr. 704.
Elkins later agreed that the last time he would have traveled the escapeway, albeit not as a
foreman, was in October 2012, some nine months before this citation was issued. Thus, it is fair
to state that the escapeway would not have remained static during that considerable period of
time. Further, the standard does not speak in terms of equivalencies, where familiarity may have
been acquired in segments over time and before one assumed the duties of the section foreman.
The Court finds that this violation, as with the similar violation, is also S&S. Testimony
supports the conclusion that there was a measure of danger contributed to by the violation and
there is a reasonable likelihood that the hazard contributed to will result in an injury. There can
be little doubt that if an injury were to occur in the circumstances of an emergency, it would be
of a reasonably serious nature. Brody’s various hypotheticals were found to be unpersuasive.
Although repeated often during its defense, the Court does not find that the presented putative
ameliorating factors, such as mine maps, are not an appropriate part of the S&S analysis.
Nor does the contention that Mr. Elkins examined the escapeway, through piecemeal
observations, at times before he assumed the role of foreman, diminish the conclusion that the
violation was S&S, as that is not the equivalent of the standard’s requirements. Once becoming
a foreman, very different responsibilities attach.

27

The Court observes that this was no more than another variant of the theme that other
safety procedures operate to diminish the S&S characterization and it too is rejected as an
inappropriate consideration in that analysis. In the same vein, the existence of multi-gas
detectors and maps showing the location of SCSRs and the refuge chamber was raised. Tr. 685687.

36 FMSHRC Page 2987

The proposed penalty for this was assessed at $3,405.00. Upon consideration of the
evidence and each of the statutory penalty factors, the Court agrees that the assessed amount is
appropriate and that amount is hereby imposed.
Citation No. 7165694 from Docket No. WEVA 2014-620
Brody did not stipulate to any matters for this section 104(a) citation. Issued on August
14, 2013, the condition or practice section stated that “[t]he lifeline provided for the #4 Super
Section is not located in a manner for miners to use to effectively escape. At crosscut 2 on #2G
Belt, directly below the lifeline there is (sic) two broken pallets, rock dust bags, a small wire
spool, [The spool was later identified by Brody’s witness as measuring about 18 inches tall and
16 inches wide. Tr. 750] and plastic. The pallets measure 5 1/2ˈ [feet] wide and 15˝ [inches]
high. This condition would hinder/impede miners attempting to utilize the lifeline in a mine
emergency and is likely to result in fatal injuries. Standard 75.380(d)(7)(iv) was cited 2 times in
two years at mine 4609086 (2 to operator, 0 to a contractor).” Gov. Ex. 17A.
The issuing inspector, Timothy Crawford testified. On that day, the Inspector was
travelling with Brody foreman Dave Petry. Inspector Crawford had been about other inspection
duties when he noticed the cited materials directly beneath the lifeline. Tr. 715. This lifeline
was in the alternate escapeway. In explaining the obvious hazard presented, with miners
escaping using a lifeline where visibility would be nil and communication precluded because
they would be wearing SCSRs, obstacles with attendant slip and fall hazards cannot be allowed.
Tr. 718. As noted in the Citation, the materials were directly below the lifeline. Tr. 718. As the
Inspector stated: “Miners attempting to utilize the lifeline being hindered or impaired through
the slip, trip hazards with the materials directly below it” was the hazard which he considered to
be reasonably likely to cause an injury that could be fatal. Tr. 719. Eleven miners were so put
at risk, as they were working inby on the No. 4 super section. Tr. 720-721. With some effort on
the Court’s part, the Inspector eventually stated that the moderate negligence he marked applies
to obvious conditions, such as the slip and fall debris he found in this instance. Tr. 725. The
Inspector also stated that in an emergency situation with miners using a lifeline, walking around
such materials is not a feasible option.28 Tr. 727.
Cross-examination suggested that the material had only been there a short time, as the
Inspector did not note it on his trip into the mine, and his notes remarked that the condition had
likely only existed for 20 minutes. Tr. 732. From this, Brody’s Counsel suggested that under
normal mining conditions, the obstacles would have been cleared in a short time. Tr. 734.
The Inspector could not speak to whether a miner was then on his way to clean up the material,
although he did allow that miners might place such material in a travelway if they know it is
about to be picked up. Tr. 735. He did not waiver however that the pallets were in a crosscut
and below the lifeline. In response to more questions about its exact location, he added that it
28

The Court did have an inquiry, perhaps misplaced, about the applicability of the
standard, because it requires that lifelines be located in such a manner to use effectively to
escape, but that the Inspector did not require that the lifeline be relocated. Tr. 728. The
Inspector believed that it remained the applicable standard to cite in such circumstances. Tr.
729.

36 FMSHRC Page 2988

was located at the junction of the entry and the crosscut. The intersection is part of the crosscut
and the entry. Tr. 737, 744. Further, the Inspector stated that it is not normal practice to put
trash directly below a lifeline. Tr. 742. Also, the Inspector denied that it was his view that all
escapeway or lifeline violations are S&S. Tr. 739.
In its defense to this matter, Brody first called Dave Petry, the foreman to whom the
citation was issued. Tr. 746. He has long experience in coal mining. He advised that when the
citation was issued he “moved it out from underneath the lifeline,” a task that simply required
him to pull it to a better location. Tr. 750. Mr. Petry stated that the materials had only been at
the inappropriate location cited by the Inspector, for about 10 minutes. Tr. 751. Mr. Petry
conceded that there was a violation. However, the Court finds, per his testimony at Tr. 752, that
Mr. Petry’s testimony regarding the short duration of this trash under the lifeline and that it was
about to be picked up by a scoop, to be credible. Tr. 753. Mr. Petry disagreed with the
Inspector’s S&S and negligence determinations for the same reasons; it was about to be picked
up and had been there for only a short time. Tr. 756.
Roger, “Dusty,” Cook, Brody section foreman, was also called by the Respondent. Mr.
Cook stated that he was the individual who put the material in the location identified in the
citation and therefore he had first-hand knowledge of the matter. Tr. 767. He then explained
the circumstances that led to the material being placed at that location and that it was done in
anticipation of it being promptly removed by the scoopman. Tr. 768. Later, he clarified that he
anticipated that the material would be removed sometime that day. Tr. 773. He went further
however, by asserting that the material was not directly under the lifeline and that he did not
believe they presented a hazard. Tr. 769. Upon cross-examination, he admitted that he was not
present when the citation was issued and so could not speak to its placement at that time. Tr.
770. He also conceded that the pallets, in a smoke-filled environment, could present a tripping
hazard. Tr. 771.
Testimony about the recency of the violation was not pertinent to the S&S analysis but it
is relevant to the degree of negligence. Though the continued normal mining operations test
typically presumes that the violative condition will continue, in this instance, the credible
testimony demonstrated that in fact the trash was to be picked up in a short time. The Court
announced at the conclusion of the testimony that the violation had been established but that it
was not S&S. Tr. 774.
For the above reasons, Citation No. 7165694, was established, but upon review of the
evidence of record, and application of the statutory criteria, the appropriate penalty to be
imposed is $500.00.
Citation No. 7166781 from Docket No. WEVA 2014-842
For this matter, Brody stipulated to the fact of violation. The section 104(a) citation, No.
7166781, issued by MSHA Coal Mine Inspector James Crawford, states in the condition or
practice that “[t]he directional cones for the alternate escape way (sic) on 2 D Belt, in by (sic) the
SCSR Cache at 20 XC exceed the 100 foot maximum spacing. An area from 20XC to 23 XC has
no cones. This is 81 rows of bolts @ 4.0 feet per row, 324 feet total. This presents hazards of

36 FMSHRC Page 2989

delay in an emergency escape attempt. Conditions such as inability to communicate, low or no
visibility and disorientation are reasonably likely in a mine emergency. Miners receive tactile
feedback and information from the cones and their configuration. This mine is on a 5 day
methane spot rotation for methane liberation. This area of the mine is far from the slope portal
and is a difficult, time consuming walk to the surface in clear visibility. The No. 2 section crew
is in by at time of citation. Standard 75.380(d)(7)(v) [the cited standard for this citation] was
cited 1 time in two years at mine 4609086.” Gov. Ex. 18A.
Inspector Crawford also has long experience in coal mining. His testimony supported the
underlying facts identified in his citation for this admitted violation. Brody’s Kevin Webb was
with him at that time. Working with the 324 foot measure meant that two or three of the required
cones were missing. He listed 14 miners as affected by this, a number derived by asking how
many people are on the section. The mine was running at the time of the citation. The Inspector
stated that the missing cones could bring about a delay in an escape situation. Tr. 787. The
cones are installed to give the miners information. When not present, neither is the information
they provide. Here, also, the section was about 5 ½ miles from the mine portal. Although he
personally expressed that he might not panic if there was no cone when his step count told him to
be expecting one, but when he went another full distance and there was still no cone, he would
have to re-evaluate his circumstance, wondering if something had gone wrong: “Do we - - do
[we] get off somewhere?” That is to say, miners would at that point stop and inquire “Are you
sure we’re going the right way?” Tr. 788. He reminded however that the miners in that
emergency situation can’t talk with one another, as they will be wearing their SCSRs.
The Inspector also referenced that miners in other mine disasters have gone the wrong
way during an escape, although lifelines were not present in those past incidents. (However, it
should be noted that the Court made it clear that references to what occurred in other mine
emergencies would not be considered in deciding the S&S and negligence issues in this matter.
Tr. 801-802) He considered the likelihood of an injury in such circumstances as reasonably
likely. Although he frequently encounters the response that a given deficiency is not of great
consequence and that it can be fixed, his response is that in an emergency there is no time to
make such fixes. Tr. 789. As with the testimony of other inspectors in this proceeding, the
Inspector marked the negligence as moderate because it was an obvious condition. Tr. 790. The
Inspector also stated that the term “secondary” escapeway is a misnomer, because it “is used
about 99 percent of the time [at this mine].”
The Court concludes that on the core issues, S&S and the moderate negligence
determinations, the cross-examination did not undermine the Inspector’s testimony. Tr. 791805.
Kevin Webb testified for Brody in defense of the issues remaining for this citation. He
stated that there was a cone at crosscut 23 and double cones at crosscut 20, the latter indicating a
branch line where SCSRs were located. Tr. 806. The area without cones was “basically level.”
He did not believe the violation was S&S because the length without cones was “a straight piece
of roadway” and because the first thing miners want to do is to get all the way out of the mine.
That exit strategy is what the miners are trained to do. Tr. 807-808. He believed that miners
would continue traveling straight ahead and he added that the reflectors along would indicate to

36 FMSHRC Page 2990

them that are going the right way. Tr. 808. However, the Court would note that this speculative
and in any event it is not the test for determining S&S. The issue is whether the undenied
absence of the cones would contribute to the hazard and based on the Inspector’s testimony, it
clearly would. Mr. Webb also did not believe that the absent cones would cause delay in
escaping. On cross-examination, Webb agreed that the purpose of the cones is to provide
reassurance, every 100 feet, that miners are heading in the correct direction, that is, out of the
mine. Tr. 812-813.
The Court finds that this violation was S&S. The arguments that other considerations29
diminished the S&S aspect are rejected. The Court also sensed that Brody discounted problems
with the cones, at least in the context of any S&S analysis, regarding their presence, whether
they were directionally accurate and the information they are to convey. The test is whether the
discrete safety hazard was contributed to by the violation and the Court finds that is clearly the
case. As an overall observation, though not controlling in determining any given citation, as
each was assessed on its own merit, it did appear to the Court that Brody seemed to discount the
significance of cones, the importance of their presence, that they indicate the right direction for
escape and, more generally, the importance of the information they are expected to convey.
Upon consideration of the evidence of record and the statutory criteria, the Court
concludes that Citation No. 7166781 is affirmed and that the proposed penalty amount of
$29,529.00 remains appropriate.
II. Alleged Roof and Rib Control and Examination Violations: Conditions and/or
Practices contributing to roof and rib hazards30
WEVA 2013-997 Citation No. 8151320. For this, Brody stipulated to the S&S finding and all
other findings and agrees to pay the assessed penalty of $9,634.00. Tr. 832.
WEVA 2014-620, Citation No. 7168801 For this too, Brody stipulated to the S&S finding and
all other findings and agrees to pay the assessed penalty of $4,329.00. Tr. 832.
WEVA 2014-620, Citation No. 7168899 For this too, Brody stipulated to the S&S finding and
all other findings and agrees to pay the assessed penalty of $15,570.00. Tr. 833.
WEVA 2014-620, Citation No. 7167471. This matter was contested.31 MSHA Inspector James
Jackson was called for this citation. Issued March 6, 2013, this section 104(a) citation stated that
29

One such example is that as the roadway was essentially straight, it was claimed that
miners in an emergency would keep going in the correct direction despite the misinformation.
30

These matters were addressed during the second week of hearings with all matters for
this group heard on September 29, 2014.
31

Later, Counsel for Brody explained that had the violation been cited as a 75.220
violation, it may have conceded the violation, while still challenging the special findings.
(continued…)

36 FMSHRC Page 2991

“[a]dditional roof support is needed at the MCI D-Box (S.N. 35966-99895-1-210), located at
cross cut (sic) 39 on number 1 belt line. Roof bolts were found to be missing and damaged in
this area. Due to the damaged and missing roof bolts areas were found 6 feet to 13 feet 3 inches
between roof bolts. This condition exposes miners to hazards related to unsupported top.
Miners are required to work and travel in this area. Standard 75.202(a) was cited 9 times in two
years at mine 4609086 (9 to operator, 0 to a contractor).”
The “D-Box” referenced in the citation is a power distribution box. Damaged roof bolts
referred to conditions where plates were not firmly against the mine roof and some of the plates
and bolt heads were snapped off. Tr. 836. This was an area where miners work or travel and
they were exposed to unsupported roof. This presented the risk of rock falling and hitting
miners, exposing the workers to the risk of a fatality. The unsupported area between the bolts
presented the risk of a fatality and the Inspector stated that it has been his experience that even
smaller rock falls can have fatal consequences. Tr. 837. Inspector Jackson marked one person
as potentially affected as one person would be examining that area each shift and there is also
exposure with the weekly electrical examination requirement. People also travel through the
area. Tr. 840. A need for maintenance of the D-box in that area or to reset breakers there would
also present exposure. Tr. 840. Thus, the hazard was the unsupported area with rock falling, a
condition he deemed to be reasonably likely to occur. The Court asked the Inspector to elaborate
his view of this hazard. The Inspector advised that the “area was unsupported. The damaged
bolts, there’s no way to tell how much of the bolt in the hole and the glue were still bonded. I
felt that the area was unsupported and unstable, just from my experience in dealing with
unsupported top.” Tr. 839. The Inspector added that the area’s location in or near an
intersection added to his conclusion that the violation was S&S. The area had not been dangered
off. Negligence was marked as “moderate” because the Inspector considered the condition to be
obvious and the examiner should have seen it. Tr. 841. Further, due to the presence of rock dust
and rust over the damaged bolts, the Inspector concluded that the condition had existed for some
time. Tr. 841. Later, he expressed that the condition had existed for longer than that week. Tr.
850. The violation was abated by setting timbers in the area.
The cross-examination noted that the area was sandstone and the Inspector agreed that
generally speaking, such rock is solid. However, the Inspector advised that he has seen
sandstone fall. Tr. 843. The Inspector did not retreat from his statement that bolts were missing,
even though advised that witnesses for Brody would assert that only plates, not bolts, were
missing. Tr. 846. He did allow that it was possible that the bolt heads had been snapped off. Tr.
847. However, there is no way of telling how much of a bolt may remain in the roof. The bolts,
Inspector Jackson reasserted, were to be on 4 foot centers at the cited location. Tr. 849.
Part of the cross-examination contended that the area had been bolted seven years earlier and that
the D-Box had been located there for four years. Tr. 850-851. This led to the assertion that in all
that time no citation for this had been issued previously. Tr. 852. The point of this was to
contend that the area was quite stable and therefore a roof fall unlikely. The Inspector’s response
31

(…continued)
However, as section 75.202 was cited, they challenged the violation itself. Tr. 883. On
that basis it believed there is case law to support the view that there is no violation where the
evidence establishes that the roof is stable. Tr. 883-884.

36 FMSHRC Page 2992

was that he didn’t “have the privilege of knowing when a roof is going to fall, when it’s going to
fail.” Tr. 853, 855. He added that the roof was unsupported. Exposure, he agreed, would not be
from miners using the travelway, as the cited area was not in a travelway. However, those
examining the D-box would be exposed. On re-direct, it was brought out that the roof control
plan still applies, sandstone or not and that roof falls can happen even where there is no obvious
adverse roof conditions. Tr. 860. Upon questioning by the Court, the Inspector, referencing the
drawing he created at page 12, stated that he found eight missing bolts. Further, the Inspector
confirmed that he found two areas of discrete problems. Tr. 862.
Brody presented Milton Aliff in defense of this matter. Mr. Aliff has long mining
experience. He identified the relevant preshift examiner’s report relating to this matter, and that
his signature appears on it. It was his testimony that exposure to the unsupported roof would be
very limited while conducting the pre-shift exam. Tr. 873-876. Mr. Aliff also took issue with
the Inspector’s assertion of “missing” bolts, asserting that they were only “wide.” He also stated
that only the bolt plates were missing. Tr. 877. It was his position that such bolts still provide
support. He also stated that the roof in this area was sandstone and that it is solid, and that “[t]he
top [there] was quite nice.” Tr. 880. To his knowledge, no other inspector had raised issues with
the roof in this area. However, Mr. Aliff revealed his perspective, when asked if he believed
“that the missing and/or damaged bolts constituted a roof-fall hazard that was reasonably likely
to injure anyone?” “No,” he responded, “[b]ecause of the conditions that were there. [T]he top
was still as solid as it was the day it was mined. There’s no visible warnings; there’s no
sounding warnings there to indicate any type of failure in the roof.” Tr. 883.
On cross-examination, Mr. Aliff agreed that preshift examiners, weekly examiners and
electricians performing maintenance would go to the D-box. And though, for a time miners
would be in a man bus, they would not be in the man bus while at the D-box itself. Tr. 884.
Aliff also conceded that the missing plates are required to be present and that an unsupported
roof presents a hazard. Tr. 885-886. Nor did Mr. Aliff like to go under unsupported roof, even if
that roof is sandstone. Tr. 886.
Based upon the credible evidence of record, the Court finds that this violation was
established and that it was S&S. The Court finds that the roof bolts were missing and damaged
in this area as described by the Inspector. The condition exposed miners to hazards related to
unsupported top and as the Inspector noted, he didn’t “have the privilege of knowing when a roof
is going to fall, when it’s going to fail.”
Still, notwithstanding the above, when the entirety of the record is considered, and
applied to the statutory criteria, the Court finds that $4,000.00 is an appropriate penalty and that
amount is so imposed.
WEVA 2014-620, Citation No. 7167473
For this violation, the Secretary announced that it was removing the S&S designation.
The parties stipulated to all other aspects of that matter and that the penalty would be derived by
application of the Part 100 formula. Tr. 888. The Secretary states that amount is $3,144.00.
Accordingly, that amount is imposed.

36 FMSHRC Page 2993

WEVA 2014-620, Citation No. 7165683
This section 104(a) citation, issued by MSHA Inspector Timothy H. Crawford on July 24,
2013, and citing 30 C.F.R. §75.202(a), states that: “[t]he ribs where persons work and travel are
not being adequately supported or otherwise controlled to protect persons from hazards related to
rib falls. On the # 3 Section in the # 6 entry adjacent to the section feeder, a loose rib is found to
have separated from the immediate rib and is left suspended. The loose top rock rib is measured
to be 3 [feet] X 105” X 15” thick. This condition exposes the section miners who work and
travel through this area to hazards of being struck by the loose rock and is likely to result in fatal
injuries. Standard 75.202(a) was cited 13 times in two years at mine 4609086 (13 to the
operator, 0 to a contractor).” Gov. Ex. 24 A and 24 B.
The Inspector noted the large, loose piece of top rock which “didn’t appear to be held in
place by much.” Tr. 890. The cited standard requires that the roof and rib where persons work
and travel be adequately supported or otherwise controlled to protect persons from falls of roof
or ribs. Upon finding the condition, Inspector Crawford he immediately issued the citation and
required that the area be dangered off so that no miners could travel through that area. Tr. 891.
The Inspector marked the violation as “reasonably likely” and the negligence as moderate. For
the former finding he felt that the hazard of miners being struck by roof or ribs and that the
violation contributed to was reasonably likely to result in an accident. He added that this was a
heavily traveled area of the mine and that the mine had several prior roof and rib injuries. Tr.
892-893. The size of the rock was sufficient that it would result in a fatal crushing injury.
Moderate negligence was marked by the Inspector because, while the condition was not so
obvious from one direction, it was fairly easy to detect when traveling outby. Tr. 894. A thin
film of dust, where the rock had separated, informed the Inspector that the condition had not just
occurred. He also observed two rib bolts in that area but one wasn’t holding the loose piece at
all and it was located in the separation itself. Only about 1 foot of the other bolt was secured in
the mine roof. Neither bolt secured the rib. Tr. 895. Additional bolts were installed in the rib to
abate the condition. The Inspector elaborated on the significant number of miners who were
exposed to this loose rib. Tr. 897.
During cross-examination the Inspector stated that the rib was in the entry, next to the
crosscut. In the Court’s estimation, both when it heard the testimony live and again when
reviewing the transcript, the cross-examination did not diminish the Inspector’s testimony about
the condition, as provided during the direct. Tr. 901-922, 924-930, 939-941. The Inspector did
allow that the condition may have existed for only a few hours and he considered the negligence
to be moderate. Tr. 923. In response to questions from the Court, the Inspector provided
additional testimony describing the hazard he found that day. The Court found the Inspector’s
testimony to be quite detailed and he augmented his testimony by marking on the exhibit the
dangerous area. The Court concluded that the Inspector’s testimony was very reliable. Tr. 93093.
In its defense of this citation, Brody called Virgil Hatfield, the individual to whom this
citation was served. Tr. 945. He did feel at any point that the rib was in danger of falling. Tr.
947. He held this view because the rib had bolts in it. Tr. 947. Mr. Hatfield also felt that there
was very little exposure to miners, expressing that “[n]obody really” travels in that area. Tr. 948.

36 FMSHRC Page 2994

He also believed that shuttle car traffic would be protected because of the canopies on them.
Further, he contended that when he and the Inspector took measurements of the loose rib, they
were “right at it,” thereby suggesting that it really didn’t present much of a hazard. Tr. 949.
Virgil Hatfield also believed that the two bolts which were present were still supporting the rib
and that it wasn’t going to fall. Tr. 950. In sum, Mr. Hatfield’s testimony presented a very
different take on the cited condition, and he didn’t feel there was a need to fix anything. The
different recounting included the abatement of it. For that, he stated that the Inspector told them
to put bolts in it. However, upon questioning by the Court, he advised that installing ribs was the
only way to abate it as a slate bar could not pull it down. Tr. 952. Further, according to him,
only two bolts, not five were installed to abate the condition. Tr. 953. The Secretary did not
cross-examine Mr. Hatfield.
Upon consideration of the entire record and the making of necessary credibility
determinations, the Court finds that the violation was established and that it was S&S. The
condition exposed the section miners who work and travel through this area to hazards of being
struck by the loose rock and was likely to result in fatal injuries. The Court finds that there was a
reasonable likelihood that the cited condition presented a reasonable likelihood that the hazard
contributed to will result in an injury and that it would be of a reasonably serious nature.
Upon consideration of the evidence of record and the statutory criteria, the Court
concludes that Citation No. 7165683 is affirmed and that the proposed penalty amount of
$11,306.00 remains appropriate.
WEVA 2014-620, Citation No. 8155908 and WEVA 2014-620, Citation No. 8155909.
The testimony regarding these citations was presented together as they were based on the
same facts.
Citation No. 8155908, a 104(a) citation, issued by Inspector Jack Hatfield on April 4, 2013, to
Brody foreman Kevin Webb, states that “[t]he mine roof in the alternate escapeway (mantrip
roadway) designated by the operator adjacent to the Co. # 4B Belt is not being maintained
effectively controlled (sic) to prevent a roof fall hazard to the workers that work and travel in this
area each shift. Supplemental roof support in the form of wooden cribs set by the operator in this
area has weathered away from the roof and has been dislodged by mobile equipment traveling in
this roadway rendering the supplemental roof support ineffective. This condition creates a roof
fall hazard and a hazard of the dislodged cribs falling onto a worker travelling through this area.
Standard 75.202(a) was cited 12 times in two years at mine 4609086 (12 to the operator, 0 to a
contractor). The negligence was marked as moderate. Gov. Ex. 25 A
Citation No. 8155909, the section 104(a) citation related to Citation No. 8155908, next above,
also issued on April 4, 2013 to Brody’s Mr. Webb by Inspector Hatfield, states that “[a]n
inadequate preshift examination has been conducted and entered in a record for that purpose
prior to the workers traveling underground along the mantrip roadway (alternate escapeway)
adjacent to the Co. #4B Belt. Supplemental roof support in the form of wooden cribs have been
dislodged by mobile equipment and in some instances weathered away from the mine roof. This
condition contributed to by the inadequate examination creates a roof fall hazard or the wooden

36 FMSHRC Page 2995

cribs falling onto a passing worker. The record entered in the book on the surface shows no
hazards nor violation noted. Standard 75.360(b)(11)(i) was cited 1 time in two years at mine
4609086 (1 to operator, 0 to a contractor).” Negligence for this citation was listed as moderate.
Gov. Ex 26 A.
Testifying first to Citation No. 8155908, Inspector Hatfield stated that while traveling up
the mantrip roadway he noticed a dislodged crib. A crib provides supplemental support, installed
to assist the primary roof support. Upon examining it, he found that it was leaning and it was not
in contact with the roof. He then noted that the roof in that area had cracks in its slate top. In
this area, he stated, there had been roof control problems and it was an area of high concern
about the roof. Tr. 963. The Inspector stated that he then found three other places with cribs
leaning. He pointed out the cracks in the roof to Mr. Webb. These observations led him to
conclude that it was reasonably likely that there would be a roof fall from any of those four
locations, which fall could injure a miner. The cited conditions were in a travelway, which also
serves as the alternate escapeway. Tr.965. Suffice it to say that the Inspector identified various
work activities which would occur in this area and thereby create exposure to the cited condition.
Tr. 966-967. Thus, he concluded that the violation contributed to the hazard of a roof fall to
those who work and travel in that area. The Inspector also listed a permanently disabling injury
as expected injury. In terms of his S&S listing, the Inspector noted the confluence of factors:
multiple places with cribs leaning and the roof conditions in that area. Tr. 967-968. He added
that he observed roof fall material in the areas of the problematic cribs, but his greater concern
was with the cracks in the roof. Tr. 969. Marking the negligence as moderate, the Inspector
believed that it was obvious that the cribs had been struck by equipment. He considered the fact
that the mine had made efforts to control the roof in this area, including input from MSHA’s
Tech Support division, as mitigation. However, the Court’s reaction to this was that it was
generous to consider those efforts as mitigation. Instead, the problems in the area could be
viewed as requiring heightened vigilance. As reflected in his notes, the Inspector provided
details about the location of the problematic cribs. Tr. 971-973. To abate the conditions, some
cribs were repaired but some required replacement.
On cross-examination, it was asserted that there were a lot of cribs in this area but the
Inspector could not affirm that there 80 sets of cribs in that area.32 The cribs cited by the
Inspector were at breaks 9, 12,13,and 17. Although the Inspector testified about broken roof
over the cribs and rock on the ground, he did not include that in his notes, asserting that he would
not normally include such information. Tr. 981. Clarifying his earlier testimony, the Inspector
stated that three of the cribs had been hit with mobile equipment and one had simply deteriorated
over time. Tr. 982. Among the three leaning cribs, a portion, one corner, of them was tight
against the roof but they were leaning and he believed that if they were hit again they would
come down. Tr. 982. The Inspector could not recall if he had been in the same area the day
before. Tr. 984. Evidence consisting of notes from Brody’s Mr. Webb tends to support that the

32

The cross-examination point being that problems with 4 cribs in an area with 80 cribs
is a small number of problematic cribs. Tr. 979-980.

36 FMSHRC Page 2996

Inspector was in that area the day before he noted the problem with the cribs but the Inspector
could not recall if he observed the cited conditions on the previous day.33 Tr. 985-987.
A separate challenge to the Inspector’s recounting involved why he permitted four days
to abate the condition, if it was as serious as he contended. The Inspector speculated that the
four days could be attributable to the end of his 40 hour work week. Tr. 989. The Inspector
agreed that a large number of miners used the roadway where he cited the condition. Given that
abatement time he allotted, he was asked how he concluded that the condition was S&S. The
Inspector responded that he did not consider it to be an imminent danger. Tr. 991. The Court
interceded, noting that the question posed by Brody’s Counsel was fair and basic, given that
many miners would be traveling in the cited area and given that he considered it to be S&S, how
was it that he allowed four days for abatement. Tr. 993. The Inspector responded that a big
percentage of those exposed would be on mantrips and he thought that the mine had begun steps
to correct the problems right away. Tr. 993-995. The Court observes that the Inspector’s
response did not explain the inconsistency between the conditions he observed, their severity and
the response time he allowed. As the Court stated at that time, “[the inspector] has not come up
with a good answer for this.” Tr. 995.
Inspector Hatfield then testified with regard to the second, related, citation, No. 8155909.
The Inspector stated that the same conditions he noted with regard to Citation No, 8155908 led
him to issue the second citation. As noted above, this second citation deals with the preshift
examination requirement and the Inspector believed that the examiner should have noted the
condition. In this regard, the Inspector referenced the “rules of nine” which pertains to nine
standards that should be included in preshift exams, as those standards were often linked to
fatalities. Tr. 1007. After finding the alleged violative conditions, the Inspector later checked
the preshift exams but found no listing of those conditions. Tr. 1009. The Inspector believed
that the inadequate roof exam contributed to a roof fall hazard that the preshift examiner should
have detected and recorded in the record book. He marked the violation as S&S because it
contributed to the exposure to the hazard of falling roof in the area where the cribs were
dislodged. Tr. 1010. He also considered the obvious nature of the cribs warranted a moderate
negligence finding.
As noted, as the citations were discussed together, the cross-examination pertained to
both matters as well. When asked the basis for concluding that the cribs were dislodged at the
time of the preshift exam, the Inspector stated it did not look to be recent and that, more likely, it
had existed for a couple of days. He again stated that he did not observe the condition the day
before or he would have cited it at that time. He did not agree with the contention that an
examiner could have simply missed three or four cribs among 80 in that area, though he did not
observe the problem the day before. His explanation for this was that he would’ve been focusing
on other concerns the day before, such as looking at ventilation controls. Tr. 1014.
In its defense to these matters, Brody called Kevin Webb back to the stand. Stating that
the cited conditions were in an area of about 800 feet, Mr. Webb described the cribs as
33

The Inspector denied telling Mr. Webb that he had indeed seen the conditions the
previous day and wanted to see if the mine would notice them. Tr. 988.

36 FMSHRC Page 2997

“weathered.” Tr. 1020. They were located next to the travelway, but he maintained that only
one of them was dislodged. Tr. 1021. Importantly, from his perspective, three of the four points
of the crib were still supporting the top. Tr. 1022. He estimated that there were between 60 to
80 cribs in this eight break span where the problems were found. The cribs were part of
supplemental roof support installed in this area.34 Tr. 1023. Mr. Webb then proceeded to
identify a number of supplemental roof supports that were installed in the cited area. This
prompted the Court to inquire whether this line of inquiry was helping, or actually hurting, the
Respondent’s defense. After all, those supplemental supports, in the Court’s view, tended to
show how problematic things were in the cited area. Tr. 1029.
Questioning then turned to Mr. Webb’s notes of April 3, 2013. Ex. R 16 D. The notes
were offered to show that the Inspector had been in the area the day before he issued these
citations. Tr. 1031. The Inspector made no mention of any problems in that area on that day
prior to issuing the citations. Webb also stated that it was possible that the one dislodged crib
could have occurred after the preshift was done. As for the three cribs he described as
“weathered,” Webb asserted that it would be easy to miss those conditions. Tr. 1035.
Importantly, Mr. Webb stated that the Inspector advised him that he had noticed the problematic
cribs the day before he issued the citations and that this was the reason he stopped that day to
check on their condition. Tr. 1036. The cited conditions were abated in about a half hour and
Webb confirmed that four days were given to abate them. In that interval the area was not
required to be dangered off. Webb agreed that the cited area was in fact heavily traveled. Tr.
1038. Mr. Webb did not feel that the conditions were S&S because there were so many other
things there to support the roof. Tr. 1039. He also stated that there was no loose rock present.
Tr. 1040.
On cross-examination, Mr. Webb was directed to Ex. R 16 E and its notation that states:
“see cribs, need cribs . . . recapped, 4B.” Tr. 1041. Webb acknowledged this was noted once he
and Inspector Hatfield had gone outside the mine. Upon further questioning, this time by the
Court, Mr. Webb agreed that the reference in that exhibit to “need cribs” was written after the
citation for an inadequate preshift. Tr. 1043. However, Webb maintained that this was written
after the inadequate preshift citation was issued and that it did not reflect that the condition had
been noted before it. Tr. 1044.
Brody then presented a second witness regarding these two citations. Mr. Jay Heiss, a
fire boss at Brody testified. Heiss was the individual who made the relevant preshift
examinations for these citations. He stated that examining the cribs is part of his responsibility
for a preshift. Tr. 1051. Heiss stated that he did not observe any weathered cribs at the time he
did his preshift exam on April 4th. He also did not agree there was a dislodged crib. Tr. 1052.
Heiss stated that he saw no hazardous roof conditions during that preshift exam. Tr. 1053.
Upon cross-examination Mr. Heiss stated that he was not with the Inspector nor Mr. Webb when
the citations were issued.
34

Although photographs, taken by Mr. Webb, per Exhibit R 15C were introduced,
showing some of the cribs along the 4B belt line, they were not admitted into the record because
they were taken only two months before the hearing and consequently long after the citations
involved here were issued. Tr. 1023.

36 FMSHRC Page 2998

At the conclusion of the testimony for Citation No. 8155909, the Court announced that it
was dismissing that citation alleging an inadequate preshift examination. Tr. 1055.
As for Citation No. 8155908, the Court finds that the violation was established but that
the S&S characteristic was not demonstrated. This necessarily involved credibility
determinations as well. Upon consideration of the entire record, the Court also finds the
negligence to be low, and taking into account the statutory criteria, a civil penalty of $800.00 is
imposed.
The proceeding then moved to other matters. Citation No. 8155925, pertaining to WEVA
2014-620, Gov. Ex. 27, was announced as settled. The citation was modified to a non-S&S
matter and accordingly to “unlikely” with the penalty adjusted per the Part 100 formula. Tr.
1056. Pursuant to that Brody has agreed to accept the citation as modified and as otherwise
issued and has agreed to pay a penalty of $ 1304.00, as calculated under Part 100 assuming a
gravity finding of unlikely and using the penalty points as set forth in penalty docket WEVA
2014-620.
Citation No. 8155926, also within WEVA 2014-620, was also modified to a non-S&S
violation, with the penalty to again be calculated per the Part 100 formula. Gov. Ex. 28. Tr.
1056. Brody has agreed to accept the citation as modified and as otherwise issued and has
agreed to pay a penalty of $ 688.00, as calculated under Part 100 assuming a gravity finding of
unlikely and using the penalty points as set forth in penalty docket WEVA 2014-620.
Citation No. 8155936, again within WEVA 2014-620, Gov. Ex. 29, was also modified to
non-S&S, with the penalty to again be calculated per the Part 100 formula. Tr. 1057. Brody has
agreed to accept the citation as modified and as otherwise issued and has agreed to pay a penalty
of $ 3144.00, as calculated under Part 100 assuming a gravity finding of unlikely and using the
penalty points as set forth in penalty docket WEVA 2014-620.
Citation No. 8155937, within WEVA 2013-1189, Gov. Ex. 30, was also modified to nonS&S, with the penalty to again be calculated per the Part 100 formula. Tr. 1058. Brody has
agreed to accept the citation as modified and as otherwise issued and has agreed to pay a penalty
of $ 1658.00, as calculated under Part 100 assuming a gravity finding of unlikely and using the
penalty points as set forth in penalty docket WEVA 2013-1189.
Order No. 9000277, within WEVA 2014-0619, Gov. Ex. 31, a section 104(d)(2) order,
alleging an unwarrantable failure, was settled, and affirmed in all respects, but with a penalty
reduction from $66,142.00 to $52,913.60. Although initially accepting the proposed reduction,
the Court later instructed that additional information would have to be provided to justify the
proposed reduction. Tr. 1060. The Secretary has complied with the Court’s direction, supplying
sufficient additional information so that the Court can meet its statutory obligations pursuant to
Section 110(k) of the Mine Act. The settlement is therefore approved.
Order No. 9000278, within WEVA 2014-0619, is the related preshift to Order No.
9000277 and was also settled. The original proposed penalty was $18,742 and the agreed

36 FMSHRC Page 2999

penalty is $14,993.00.35 Tr. 1061. The parties have agreed to resolve this Order for the same
reasons and based on the same circumstances as set forth in the settlement of Order No.
9000277. Accordingly, the Secretary has complied with the Court’s direction, supplying
sufficient additional information so that the Court can meet its statutory obligations pursuant to
Section 110(k) of the Mine Act. The settlement is therefore approved.
Order No. 9000304, within WEVA 2014-0619, Gov. Ex 33, and Citation No. 9000307,
within WEVA 2014-620, Gov. Ex. 34, were disputed matters. MSHA Inspector Jack Hatfield
testified regarding these matters.
A section 104(d)(2) order, No. 9000304, issued July 24,2013, stated: “An inadequate
preshift examination has been conducted and recorded on the surface prior to the workers
traveling underground to the new 1 Section Panel where workers are observed performing work
on this day. The record of the examination states that ‘section moving under construction’. On
this day hazards of loose unsupported slate and broken rock/coal brows are found on the new 1
Section Panel. These adverse roof conditions are obvious and required dangered off or
correction immediately. Equipment has been moved to this new panel and work was being
performed for the beginning of second mining. This panel has set for an extended time with no
evidence of rehabilitation prior to moving mining equipment to the new section. This inadequate
examination exposes the workers to roof and rib falls while performing work. Four of the
thirteen disabling accidents reported to MSHA from this mine this year have been from roof
falling onto the workers. This action exhibits conduct which falls below a standard of care
established by the Mine Act to protect the workers against the risks of harm. This mine operator
has engaged in aggravated conduct constituting more than ordinary negligence by not conducting
an adequate examination and correcting these roof and rib fall hazards. This citation is
unwarrantable failure to comply with a mandatory standard. Standard 75.360(b)(11)(i) was cited
5 times in two years at mine 4609086 (5 to the operator, 0 to a contractor). This violation is an
unwarrantable failure to comply with a mandatory standard.” Gov. Ex. 33A.
The Order marked the negligence as “High,” with the gravity as S&S and fatal, with one
person affected. Inspector Hatfield issued the Order to Brody foreman Jamie Lester. Tr. 1063.
The Inspector stated that, during the course of his E01 inspection he could not find anything to
show that a preshift examination had been conducted for the area where they were moving,
called the new 1 section. He found information for July 23rd, but nothing for July 24th. In this
area, as the mine started pillaring back, they decided to put belt in that panel and pull pillars
35

Settled Order No. 9000278, issued June 5, 2013, states: “[a]n inadequate preshift
examination has been conducted and recorded in a book for that purpose on the 3 Section Panel.
The approved roof control plan is found on this day not being followed on the 3 Section Panel.
The bolt spacing for installed primary support (6´ resin rods and 6´ torque tension rods) and
supplemental roof support (10´cable bolts) is not as required. Numerous areas measured greater
than the 36” with cable bolts installed in the intersections or the cable bolts being installed
further than every other row of roof bolts. The mine roof on this section is found broken
laminated slate and sandstone with a coal rider seam within 7´. This area, although not a high
stress area, is West of Pond Fork with a coal rider seam present contributing to a hazardous roof
condition. This examination is conducted by an agent of the operator is exhibited by the record.

36 FMSHRC Page 3000

there. Tr. 1064. Hatfield, upon checking on the surface, found no record that a preshift had been
done for that area. Tr. 1064-1065. The Inspector then traveled to that section and found that
they had produced coal there on the day shift. This conflicted with the preshift report which only
indicated that the section was moving. Tr. 1065. Jamie Lester, evening shift foreman,
accompanied the Inspector. Upon arriving at what the Inspector called the new 1 section, which
was located third right off of 4 south, he found problems with the roof. He observed broken ribs,
and the roof was broken. He found bad roof conditions, loose, broken roof, slate and a “monster”
rock brow36 at the No. 8 entry. The Inspector expressed that the mine failed to do rehab work
before moving up there but just went ahead. Tr. 1066. The Inspector stated that the broken roof
was “just about everywhere.” Tr. 1070. It was his opinion that the mine had done nothing to try
to scale the rock and no spot bolting had been done either. In terms of the size of the cited area,
the Inspector said it covered approximately eight entries. He observed miners working in the
cited area. Tr. 1073-1074. He did not observe workers at the monster brow however. While
Inspector Hatfield had quite a tendency to ramble in his answers, his point was that the mining
activity he observed and the problems with the roof he found were not recorded in the preshift
examination. In terms of the evidence that mining was ongoing, the Inspector stated that the
miners were hanging cables and the continuous miner had been moved from the move up box to
where it was positioned to start mining coal. Tr. 1076. He explained his S&S finding as based
on a confluence of factors, with so many things wrong on the section that it was reasonably
likely that an accident would occur. Tr. 1076-1077. He added that the problems he found went
beyond the roof conditions. Tr. 1077. He believed that the preshift exam should have noted
ventilation problems. Although the Order doesn’t include it, when asked if the preshift should
have included issues regarding emergency access, such as a first aid kit or shelter, the Inspector
responded: “The shelter should have been noted in the - - in there. And the escapeway, the
alternate and primary escapeway, markings, your lifeline and that, should have been in [the
preshift examination book].” Tr. 1079. Despite the detours to other issues, the Inspector returned
to the roof conditions as his primary concern. Tr. 1079-1080. He considered the failures to list
the problems to be unwarrantable failure, aggravated conduct with no mitigating factors. The
matter was abated by moving the workers off of the panel and by marking the areas needing
scaling.
The direct examination then proceeded to the related violation so that the crossexamination could cover both issues together. Accordingly, Inspector Hatfield was next directed
to Gov. Ex 34. The related Citation, citing 30 C.F.R. §75.202(a), requires that roof and ribs be
adequately supported to protect miners from rib or roof falls. Inspector Hatfield believed that the
roof conditions he observed presented a roof fall hazard for those working on that section that
evening and that a fatal accident could reasonably be expected. Tr. 1084. It was noted that the
Inspector issued this alleged violation five days after the related preshift violation. Though hard
to follow, the Inspector essentially stated that he would have issued the 75.202 violation sooner
but that the situation was “so ugly” that he “brain locked” and that this accounted for his delay.
Tr. 1088. Regrettably, the Court finds that this explanation dubious. In attempting to better
understand his testimony, the Court learned from the Inspector that when he issued the 9000307

36

A brow is part of coal or rock that has broken from the coal pillar. It is loose, but selfsupporting, standing by itself. Tr. 1069.

36 FMSHRC Page 3001

citation some of the roof problems had been corrected when it was issued. Tr. 1089. By 1530 on
July 29, 2013, all of the roof issues had been abated. Tr. 1090.
In the cross-examination, it was revealed that, at least in part, the decision to issue the
Citation No. 9000307 roof violation was the product of a discussion between the Inspector and
his supervisor. Tr. 1095-1096. However, the Court views this as a non-issue. The citation either
stands or falls based on the Inspector’s testimony of the conditions he observed and the Court’s
evaluation of that testimony along with the testimony of other witnesses regarding that matter.
In other cross-examination matters, regarding the alleged preshift exam violation, Brody noted
that the section was being moved. An issue was whether work was being done in what was
referred to as the old No. 1 section or the new No. 1 section. It was Inspector Hatfield’s position
that the preshift exam documents were confusing and that Brody could not show him where the
workers were at the time of that exam. Tr. 1100. Directed to that preshift exam, dated July 24,
2013, Respondent’s Exhibit 17 D, performed by Brody’s John Pauley, Inspector Hatfield agreed
that was the preshift exam he deemed to be inadequate. Tr. 1101-1102. Hatfield did not speak
with Pauley before issuing the alleged preshift violation. Tr. 1104. The point Brody was urging
was that, in the process of a section move, areas where miners work or travel is constantly
changing and that a preshift examiner might not, in such circumstances, be able to anticipate all
the areas the miners might be in that process. Inspector Hatfield, somewhat hesitantly, agreed.
Tr. 1106. However, it was the Inspector’s position all the equipment involved used the same
pathway from the old to the new section, and that Brody could not show him the dates, times,
and initials to establish that a preshift was done prior to the miners coming up to the new section.
Tr. 1106. The Inspector agreed that the move to the new section had not been completed. Tr.
1109. He asserted that the continuous miner was at the new section and the belt was installed,
and that 4 MRS units, a roof bolter and three shuttle cars were there but there was no power
center yet. Tr. 1109, 1113. Hatfield maintained that the broken roof and broken rock brows
where in the area where the equipment had been moved. Tr. 1114. While the continuous miner
might have been parked in a safe location, the Inspector maintained that it had to past the
hazardous area to arrive at the safe location. Tr. 1114-1115.
Inspector Hatfield acknowledged that Brody’s Dave Morris told him that he was making
an exam of the area where the order was issued. Morris agreed with the Inspector that the area
needed some work. Tr. 1116. He agreed that Morris was using red spray paint, marking off
dangerous areas. Tr. 1118. Hatfield was of the view that Mr. Morris was not conducting a
supplemental examination of the area, but rather was conducting an on-shift exam. Tr. 1119.
In response to the suggestion of Brody’s Counsel that not was going to be performed yet
up on the new part of the panel, the Inspector disagreed, stating that they “were hanging cables
with anticipation of moving the feeder and the transformer up onto the section, and the
equipment had already been moved up there.” Tr. 1121. Miners told the Inspector that they were
hanging cables and moving equipment. Tr. 1123. To the suggestion that Mr. Morris had already
performed an examination of the areas where the miners had been working, the Inspector
responded that if that was the case there was no evidence of such an exam by his certification
with dates, times and initials. Tr. 1124. Hatfield stated that if work has been planned, you can’t
do a supplemental exam; a preshift exam is required in such circumstances.

36 FMSHRC Page 3002

Brody called James Allen Lester, shift foreman, in its defense of these matters. He
recalled the events associated with them and he traveled with Inspector Hatfield at that time. Tr.
1136. Mr. Lester maintained that he saw dates, times and initials to show that the area, the new
No. 1 section, had in fact been examined prior to miners entering it and that they were the initials
of Eddie Puckett. Tr. 1137. He then added seeing the initials of Willis Dickens in the area
before one turned up on the new section. Tr. 1137. The Secretary posed no questions of the
witness.
The Court finds that these violations were established, but that neither was S&S, nor was
there an unwarrantable failure established. It must be remembered that the burden of proof is on
the Secretary. It is found that, under the preponderance standard, matters were unclear as to the
state of mining, whether a preshift was done and as things evolved whether a supplemental shift
was underway. Credibility determinations, partially adverse to the Secretary, played a role in the
Court’s determinations too.
For Order No. 9000304, within WEVA 2014-0619, the alleged inadequate preshift
examination, the Court finds that the preponderance of the evidence supports that this Order was
properly issued but that the findings of unwarrantable failure, high negligence, S&S, reasonably
likely, fatal and one person affected are supported were not. A civil penalty of $5,000.00 is
assessed. As a further consequence, the citation is modified to a section 104(a) citation.
As for Citation No. 9000307, within WEVA 2014-620, a section 104(a) citation, which is
based on the same essential facts, a $4,000.00 penalty is assessed.
Additional matters which were settled by the parties:
Citation No 7167412, Gov. Ex. 8A was settled, with the Secretary agreeing to delete the S&S
designation. The citation was accepted as otherwise written and the penalty agreed to be the
amount derived from application of the Part 100 regulations. Tr. 488. That amount is $5,080.00.
Citation No 7167474 from WEVA 2013-997, with the Secretary agreeing to delete the S&S
designation. The citation was accepted as otherwise written and the penalty agreed to be the
amount derived from application of the Part 100 regulations. Tr. 553.
Citation No. 9000286 from WEVA 2014-0620, a section 104(a) citation, relating to an intake
escapeway not being properly maintained, was settled as issued, including accepting the S&S
finding and paid at the proposed amount of $3,405.00. Tr. 643.
Citation No. 7165680, WEVA 2014-0620. Brody accepts this citation, as issued, including the
S&S finding. This includes agreeing to pay the proposed penalty of $29,529.00. Tr. 644.
Order No. 9000305, WEVA 2014-0619. Brody accepts this violation as issued, including the
S&S finding but with mitigating factors, the penalty was reduced from $53,858 to $43,086. That
violation cited section 75.1506(c)(1) requires refuge alternatives to be maintained within a
thousand feet of the face and that the section was being moved at the time of the Order’s

36 FMSHRC Page 3003

issuance and the mine had not resumed production. Tr. 646. The Secretary presented adequate
justification to the Court for the reduction in the proposed penalty.37
Citation No. 9000309, WEVA 2014-620. For this 104(a) citation the Secretary agreed to delete
the S&S finding. Brody otherwise accepted the citation as issued and the parties agreed that
the penalty will be the amount derived Part 100. Tr. 647.
The following citations/orders were presented during October 7th through October 9th, the
third week of the hearings in these matters.38 Several of the citations/orders set for the third
week of the hearings were settled and the terms of those settlements were later stated on the
record.
Also addressed were settled matters from the first two weeks of the hearing: They are as
follows:
First is Citation No. 7167412. That is contained in docket No. WEVA 2013-997.
The parties agree to modify that to delete the S&S finding.
The next is Government Exhibit 10, in citation No. 7167474 contained in docket No. WEVA
2013-997. The parties agree to delete the S&S finding for that one.

37

The Secretary explained the basis for the penalty reduction: MR. WILSON: Yes, your
Honor. The standard cited requires that refuge alternatives be maint[ained] within 1,000 feet of
the face or areas where mechanized equipment are being installed. The section was moving
from one location to another. They hadn't started production yet. So the company would argue
that those were mitigating circumstances. Taking that into account, taking into account that the
company has agreed to accept the violation as issue including the S&S finding, we've agreed to
the modest penalty reduction.
THE COURT: Okay. And -- and this is not giving you a poke -- maybe a little. I would
just note on the record how easy that was for the [S]ecretary to provide the court with the
information that is required under the statute. It was not onerous, as I read in some filings in
other matters. Very easy to provide the minimal information, as opposed to just saying, we've
looked at this [Federal Mine Review] [C]ommission and it's good. Now it's your [i.e. the
Commission’s] job to bring out the stamp. Okay? So that -- I don't want to -- I don't want you to
offer a rebuttal to that.
MR. WILSON: I wasn't planning on it.
THE COURT: And I just wanted to note for the record, it took you less than 30 seconds
to justify the reasons for the reduction. Tr. 645-646.
38

At the outset of the third week, the Court ruled on Brody’s Motion to enforcement a
claimed settlement, pertaining to matters in this litigation, denying the Motion. The reasons for
the denial are set forth at transcript pages 1155-1156.

36 FMSHRC Page 3004

The next is Government Exhibit 12, in citation No. 9000286. That is part of penalty
docket WEVA 2014-620. Brody agreed to accept that one as issued, including the S&S finding.
The next is Government Exhibit 13, in citation No. 7165680, contained in docket No. WEVA
2014-620. Brody agreed to accept that one as issued.
Next is Government Exhibit 14, citation No. 9000305, contained in docket No. WEVA 2014619. And the company agreed to accept that one as issued.
Government Exhibit 15, citation 9000309, contained in docket WEVA 2014-620. The Secretary
agreed to delete the S&S finding on that one.
Government Exhibit 19, citation No. 8151320, contained in docket No. 2013-997. The company
agreed to accept that as issued.
Government Exhibit 20, citation No. 7168801, docket No. WEVA 2013-370. The company
agreed to accept that as issued.
Government Exhibit 21, citation No. 7168899, contained in docket No. WEVA 2014-620. The
company agreed to accept that as issued.
Government Exhibit 23, No. 7167473, contained in docket WEVA 2014-620. The Secretary
agreed to delete the S&S finding.
Government Exhibit 27, citation No. 8155925, contained in docket WEVA 2014-620. The
Secretary agreed to delete the S&S finding.
Government Exhibit 28, citation No. 8155926, contained in docket WEVA 2014-620. The
Secretary agreed to delete the S&S finding.
Government Exhibit 29, citation 8155936, contained in docket WEVA 2014-620. The Secretary
agreed to delete the S&S.
Government Exhibit 30, No. 8155937, contained in docket WEVA 2013-1189. And that is to be
modified to delete the S&S.
Government Exhibit 31, citation 9000277, contained in WEVA 2014-619. The company agreed
to accept that as issued.
Government Exhibit 32, citation No. 9000278, contained in docket WEVA 2014-619. The
company agreed to accept that one as issued.
In terms of penalty assessments, Brody has stipulated that it is a very large mine and the
government has submitted R 17 reports for each of the matters litigated. Tr. 1166.

36 FMSHRC Page 3005

All of the following exhibits pertain to assessed violation histories:
Government Exhibit 1-D, pertaining to citation 8153617
Government Exhibit 2-F, pertaining to citation 7167386.
Government Exhibit 3-G, pertaining to citation 7167387.
Government Exhibit 4-E, applies to two citations, 7167388 and 7167389, which were both issued
on the same day, so the same history applies to both.
Government Exhibit 6-E, relating to citation 7167393.
Government Exhibit 7-E, pertaining to citation 7167405.
Government Exhibit 9-D, relating to citation 7168854.
Government Exhibit 11-E, pertaining to citation No. 8155914.
Government Exhibit 16-D, pertaining to citation No. 9000313.
Government Exhibit 17-C, pertaining to citation No. 7165694.
Government Exhibit 18-C, relating to citation No. 7166781.
(Government Exhibits 1-D, 2-F, 3-G, 4-E, 6-E, 7-E, 9-D, 11-E, 16-D, 17-C, and 18-C, were all
admitted. Tr. 1168.)
III. Alleged Ventilation and Methane Violations; Conditions and/or Practices
contributing to Ventilation and Methane Hazards
For the third week of the hearings, the citations/orders all involved alleged ventilation
hazards. It was noted that in some instances a given inspector may have marked an alleged
violation as a safety hazard but that health issues may attend those as well, as reflected in the
inspectors’ notes. The Secretary moved to amend those citations to conform to the evidence.
In response, the Court expressed that it did not intend for a clerical omission to override the
attendant facts, but that any final ruling would have to await consideration of any objections that
Brody may raise. Tr. 1172.
The proceeding then addressed settlements reached by the parties for some matters as
follows:
Citation No. 8125045 in Docket No. WEVA 2013-997. Government Exhibit 35, was
settled. The Secretary has agreed to drop the S&S, to modify the gravity from reasonably likely
to unlikely, to reduce the penalty from 21,442 to 4,329. That penalty was calculated on the
gravity, if you reduce the gravity from reasonably likely to unlikely, that knocks 20 penalty

36 FMSHRC Page 3006

points off the regular assessment, which this was. Brody agreed to accept the citation as
modified and as otherwise issued and has agreed to pay a penalty of $4,329.00, as calculated
under Part 100 assuming a gravity finding of unlikely and using the penalty points as set forth in
penalty docket WEVA 2013-997.
Citation No. 8139621 in penalty docket No. WEVA 2014-620. Government Exhibit 36
was also settled with the Secretary agreeing to drop the S&S and reduce the gravity from
reasonably likely to unlikely. Tr. 1173-1177. Brody agreed to accept the citation as modified
and as otherwise issued and has agreed to pay a penalty of $1,944.00, as calculated under Part
100 assuming a gravity finding of unlikely and using the penalty points as set forth in penalty
docket WEVA 2014-620.
Order No. 8154782, from Docket No. WEVA 2014-619
The first contested Alleged Ventilation and Methane Violation matter for week 3 was
Order No. 8154782, issued June 5, 2013, from Docket No. WEVA 2014-619. Gov. Ex. 37A.
MSHA Inspector Timothy Workman, the issuing inspector for this matter, testified. The
condition or practice listed for this states: “The Approved methane dust control portion of the
ventilation plan was not followed on the 004-0 MMU Section. The plan requires 8500 cfm of air
to be maintained behind the exhausting line curtain where the continuous miner is operated in the
face, when checked by the inspection party the 216 continuous miner was mining in the #2 entry
and only 3259 cfm of air was present behind the exhausting curtain. The distance from the face
to the last row of bolts measured approximately 27 feet. This violation of a mandatory standard
contributes to hazards of methane ignitions, explosions, and hazards associated with exposure to
dust that is reasonably likely to result in fatal injuries. The exposure to this measure of danger
includes but may not be limited to: The 13 persons that worked on the section this shift when the
violation was observed. This is a 5 day, 103i, methane spot mine. The operator was also cited
for failure to maintain cutter drum bits (reference citation 8154784). This violation is an
unwarrantable failure to comply with a mandatory standard. The mine operator has engaged in
aggravated conduct constituting more than ordinary negligence in that the violative condition
existed for a period of time. The section foreman had reason to know of the condition in that, the
foreman was aware that ventilation controls had been altered on the section approximately 20
minutes prior to MSHA arriving on the section, by removing a solid curtain between the # 5 and
# 6 entries, short circuiting the air on the dual MMU #3 Section where the 005-0 and 004-0
MMU’s operate. The foreman did not notify the continuous miner operator to turn off the
equipment when the ventilation controls were altered and did not ensure that proper ventilation
was maintained in the # 2 entry during and after the alteration to the ventilation curtain. The
mine has been cited 63 times in two years for violation of 75.370(a)(1) and should be on
heightened alert for this type condition. Standard 75.370(a)(1) was cited 63 times in two years at
mine 4609086 (63 to the operator, 0 to a contractor).” Gov. Ex 37A.
Inspector Workman was at the mine on that date during a section 103(i) spot or “impact”
inspection. Such inspections are designed to be intensified with the idea of trying to see the
actual mining conditions. Tr. 1183. The primary purpose of a spot inspection is to check things
associated with methane liberation and ventilation. Tre. 1185. This mine is on a 5 day spot
because it liberates more than 1 million cubic feet of methane in a 24 hour period. The Inspector

36 FMSHRC Page 3007

stated: “As I approached the No. 2 entry, where I could hear a continuous miner operating, I
observed dust coming back into the intersection of the entry as the continuous miner was leading
the shuttle car. And when I viewed the dust, I approached the miner, and the shuttle car left.
I told the continuous miner operator I wanted to take an air reading.” Tr. 1186. Elaborating, the
Inspector stated that he “was traveling across the section, through the crosscut, and observed that
dust [was] coming out on the entry w[here] the continuous miner was loading.” Tr. 1187.
He saw “dust traveling out of the entry back into the intersection. And the dust was about the
consistency of fog.” The fog of dust covered an area between the curtain and the rib, where the
shuttle car and the continuous miner operator was.” Tr. 1187
Upon viewing the dusty conditions, the Inspector approached the continuous miner
operator, who turned off his machine. He advised that he was going to take an air reading.
Tr. 1188. The methane monitor on the machine had a readout of 0.4 at that time. Tr. 1189-1190.
He found the continuous miner towards the working face and the curtain was with the
outspacing towards the curtain and the rib. This meant that the continuous miner was to the
Inspector’s right, towards the face and the curtain was hung on the left rib. Tr. 1190. The curtain
was 35 inches away from the left rib. Twenty-seven feet had been taken out of the cut. Tr. 1191.
By his estimation, they were approximately two-thirds done with that cut. Tr. 1192. The
Inspector’s “air reading was taken between the curtain and the rib on the exhausting side of the
curtain, at the end of the line curtain.” Tr. 1192. He described in detail the method he employed
in taking his anemometer reading. The readings are reflected in his Order, No. 8154782, which
is quoted above.
Once he had taken his reading, the Inspector informed Brody’s Shannon Dolin of the
results, who then began taking his own air reading. Tr. 1200. At the same time, he saw that
some miners began taking corrective actions on the curtain, by tightening it up and extending it.
Tr. 1200. Even with those actions, Dolin’s reading was 5723, which was still low. The
Inspector made it clear that the corrective actions, undertaken as Dolin was taking his own
reading, would have helped increase the air reading he obtained. Tr. 1201.
Inspector Workman stated that he had several hazard concerns associated with the
condition he observed: accumulations of methane due to the diminished ventilation and exposure
to dust, which presented health and safety issues. Tr. 1201-1202. With low air, the ability to
sweep out methane is diminished. Tr. 1205. If methane levels reach 1 % the operator is required
to take additional steps. Tr. 1205-1206. Those levels were not present, but a point of the
ventilation requirements is to prevent them from developing. Methane liberations, he explained,
are not consistent and one can’t predict how quickly accumulations of methane can develop. Tr.
1207. It was mentioned again that the Brody mine is a high methane liberating mine. Spot
inspections, intended to deal with such issues, can be at 15, 10 or 5 day intervals. As noted, the
Brody mine inspections occur with the highest frequency, at 5 day intervals.39 Tr. 1210.
39

Although not directly part of this Order but worth noting, the Inspector issued another
citation at the same time because the methane gas detector used by the continuous miner
equipment operator wasn’t functioning properly, to the point that it was useless. That methane
detector is apart from the detector on the continuous miner itself. Such readings are done within
(continued…)

36 FMSHRC Page 3008

The Inspector stated that when he came to the entry, immediately before he issued Order
No. 8154782, the continuous miner was operating in the No. 2 entry in the location where he
found the low air. Tr. 1216. That low air was traveling up into the cut where the continuous
miner was working and then being exhausted behind the line curtain. There were ignition
sources identified by the Inspector: electrical equipment, the continuous miner itself, and the
shuttle car were named. The condition of the cutter drum bits on the continuous miner were of
concern too, as an additional ignition source and a citation was issued for that. Tr. 1218-1220.
Citation No. 8154784, Gov. Ex. 37 E, Tr. 1222. (The cutter bit issue, while related and admitted
to the record as part of the broader picture for Order No. 8154782, is not part of the Secretary’s
pattern claim. Tr. 1223.) Among the approximate 81 bits, because there is some bit redundancy
in the cutting drum, not every one of them has to be perfect, but in this instance several bits were
missing in a general location and such a condition increases the likelihood of an ignition, if
methane was encountered. Tr. 1220-1221. Thus, a concern was, with the low air, and the issue
with the bits, matters were made worse. Tr. 1221-1222.
Regarding the Inspector’s marking the Order as S&S, he expressed that the low air he
found contributed to the measure of danger related to the methane hazard. A methane ignition
would be reasonably likely to result in an injury and such injury would be of a reasonably serious
nature. Tr. 1231. Thirteen miners, as noted in the Order, were exposed to that risk in the cited
area. Tr. 1232. Under certain, limited, situations, namely at a shift change, that number could
double. In sum, the Inspector found, within the same general time frame, the low air, the 0.4 (i.e.
one half of one percent) percent methane, the defective methane detector, and the cutter bit issue.
Those were the factors which the Inspector considered to be in confluence. Tr. 1234-1235.
However, the Court expressed that the defective methane detector, while an important concern,
was not properly part of the S&S analysis for this matter. Tr. 1236. Continuing with the
Inspector’s testimony, Workman stated that the dust he encountered itself contributed to the
hazard of a methane ignition, as coal dust itself can ignite or explode. The hazard is only
increased with the presence of methane. Tr. 1237. Further, an explosion can occur in such
circumstances, even where the methane has not reached the explosive level range. Tr. 1237.
There was also, in the Inspector’s estimation, a visibility hazard present. Here, there was dust
coming into the area where the shuttle car and the continuous miner operator were working. The
dust created a visibility issue and increased the risk that the miner operator could be struck by the
shuttle car operator.40 Tr.1241-1242.
39

(…continued)
5 feet of the face and must be done every 20 minutes. Tr. 1211-1213. Gov. Ex. 37 D. Thus,
methane is such a concern, with its potential for an explosion, that backup measurements, such as
this are required to be taken.
40

Inspector Workman noted that the continuous miner operator does his job remotely.
He is not physically on the continuous miner. However, as he is standing apart from the machine
he is remotely operating, he is subject to being struck by other equipment, such as the shuttle car
operator, a risk heightened by the dust reducing the visibility. It is fair to state that the dust
impaired the visibility but that there was not a complete impairment; one could from 20 feet
(continued…)

36 FMSHRC Page 3009

The Inspector affirmed that his S&S finding was based on two, independent, grounds:
safety and health concerns. Tr.1243. For the latter, he was concerned about the exposure to
respirable dust and how such dust can lead to lung diseases. Tr. 1243-1244. Both the continuous
miner and the shuttle car operators were exposed to that dust. This mine is also subject to a
reduced dust standard. The usual dust standard is 2.0 but the reduced dust standard in that area is
set at 0.9. This lower standard is used where quartz silica is present. Quartz makes respirable
dust significantly more hazardous to inhale. The concern is lung disease from such exposure,
silicosis and pneumoconiosis, disabling and fatal consequences. Tr. 1244-1248.
To abate the low air problem, several steps were required, as adjustments to the line
curtain did not solve the issue and other ventilation controls were required. Tr. 1248-1249. It
was discovered that ventilation controls had been moved in order to move equipment in the area
but that it had not been reestablished. Tr. 1250. The Inspector marked the violation as an
unwarrantable failure because the mine failed to install the fly pads properly and the condition
had not just occurred. The ventilation controls had been knowingly removed by the section boss.
Production should have been shut down until the controls had been reestablished. Further, it was
not a simple fix; it took an hour to get things right. Tr. 1251-1252.
Upon review of the cross-examination, addressing things such as that continuous miner
methane monitor was working properly, that no issues were encountered during the inspector’s
imminent danger run, the location of the continuous miner to the right rib, that about two-thirds
of the cut had been completed, that a shuttle car was being loaded when he entered the area,
attempts to claim that the face was idle at the moment the inspector observed the problem,
subsequent air readings, the suggestion that the low air existed for no more than 20 minutes, that
the inspector did not actually see the bits striking the face when he issued the citation for that
problem, and the communication between the continuous miner operator and the shuttle car
operator, among other topics, it is the Court’s opinion that such questioning did not diminish the
Inspector’s testimony on direct examination. (Tr. 1254-1291). The subsequent redirect and the
re-cross examination did not alter the Court’s view of the testimony. Tr. 1291-1301.
In its defense of this matter, Brody called Shannon Dolin, shift foreman. He was present
with the inspector at that time. Dolin stated that the miner was backing out of the No. 2 entry at
the time and was not cutting coal at that moment they arrived, nor was the shuttle car being
loaded. Tr. 1305. Instead, he maintained that the miner was preparing to go to another entry.
Thus, there was a direct conflict in the testimony on this point. The difference in the accounts
matters, as the air need only be 3,000 when not cutting or loading. Dolin considered such
circumstances to be an idle face. Tr. 1307. He also stated that the odd manner in which the
Inspector took his air reading caused him to act as if he were a regulator, albeit a human
regulator, but with the effect of blocking the air. Tr. 1309. Dolin also stated that the continuous
40

(…continued)
away, at least make out the presence of things at that distance. The Inspector’s analogy to fog
was reasonable. Tr. 1240-1241. Importantly, one must remember that, in a coal mine such as
this, visibility is not great to start. It is limited under the best of circumstances. The dust, when
struck by a cap lamp or the light on machinery, also has a reflective effect and that too
diminishes visibility. Tr. 1242.

36 FMSHRC Page 3010

miner’s position was not sitting straight as it would be if it were mining and loading. Tr. 1310.
Thus, Dolin’s testimony was that because they weren’t cutting coal and because the
measurement itself was compromised in the way it was taken, there was no violation. Tr. 1311.
In addition, Dolin’s own measurement, taken right after, and with no ventilation changes yet
made, was 5500. Tr. 1312. The air reading taken before any coal was cut that day was 9,310.
R’s 19 C. Tr. 1314. A production sheet report for June 5th reflects that coal was mined from
8:40 to 10:00 a.m. that day, with the next cut occurring from 12:20 to 1:20 p.m. R 19 E. Dolin
stated that, though permitted, no deep cuts were being made on that day. He stated that the cuts
had been shortened to control the top better. Tr. 1316. The shorter cuts allowed them to get in
faster so that bolting could occur sooner. Further displaying the divergent testimony between the
Mr. Dolin and the Inspector, Dolin stated that there was no dust in the area when the Order was
issued. Tr. 1318. To address the Order, Dolin stated that they “just hung a check curtain - - a
couple check curtains across the fly pads.” Tr. 1319. That had to be done, he stated, because of
the way the continuous miner was positioned. Once that was done, the air issue was resolved.
Tr. 1320. Dolin stated that it is easy for a fly pad to become torn down on a corner by a shuttle
car or other equipment or even by a person walking on it. Tr. 1320. Consistent with the thrust of
his testimony, Mr. Dolin didn’t know anything about ventilation changes occurring 20 minutes
before the Order was issued nor about any curtain being taken down between the No. 5 and 6
entry. Tr. 1321. As for the damaged drum bits and the contention about water sprays, Mr. Dolin
agreed that those are routine maintenance items. Tr. 1322.
On cross-examination, Mr. Dolin, agreed that Ex. R 19E reflects that coal was being
produced between 12:20 and 1:20 that day, but that the record of the times “may not have been
correct” because he insisted the mining was done. Tr. 1323. Dolin then agreed that the
continuous miner would still have been in the entry at 1:20. Tr. 1324. Dolin repeated that the
mining was completed and that the miner was backing out of the entry, not producing coal, a
status that he viewed as idle, not active mining. Even if miners are still in the entry, and even if
the miner is not de-energized, Mr. Dolin considered the face to be idle, as coal was not being
produced. Tr. 1325-1327. He did acknowledge that some bits on the cutter needed to be
replaced, but this was done to make the coal cutting faster. He did not know if the worn bits
increased the risk of sparking or arcing. Tr. 1334. In terms of the different air readings between
the Inspector and his reading, Mr. Dolin didn’t know how to explain the difference, other than
perhaps that they were positioned differently when taking the measurements. Tr. 1336. As for
any notes he may have taken, Dolin was sure that he did take notes, but could not recall the
person to whom he gave them. Tr. 1339. Brody, he stated, asks that its employees take notes
when they travel with inspectors. Tr. 1340.
The Court concludes that the Order is affirmed in all respects. The violation was clearly
S&S and the proposed penalty of $70,000.00 is appropriate when measured by application of the
statutory criteria and it is so imposed. The Court’s determinations necessarily involved
credibility determinations which are reflected in the Court’s findings and penalty imposition.

36 FMSHRC Page 3011

Citation No. 8146352, from Docket No. WEVA 2013-997
For this matter, Brody admits to the fact of violation but disputes the S&S finding. The
stipulation included the inspector’s air readings, including the manner in which it was taken and
the mean air velocity. Tr. 1348-1349. So too, the degree of negligence (low), and the number of
persons affected (2), were part of Brody’s stipulation, leaving only the S&S issue. Tr. 1350.
MSHA Inspector James Jackson testified about this matter. The citation for which the
S&S issue is involved is found in Gov. Ex. 38A. The condition or practice section of this 104(a)
citation states that “[t]he operator is not following the approved methane dust control portion of
the ventilation plan on the 011-0 MMU on the number 5 section. The Fletcher roof bolter was
bolting in the number 2 entry without the required 45 MEAV air. [“MEAV” stands for mean
entry air velocity. Tr. 1354, 1356] The number 2 entry was found to have only 35.6 MEAV air
while the bolt machine was in operation. Standard 75.370(a)(1) was cited 57 times in two years
at mine 4609086 (57 times to the operator, 0 to a contractor).”
The Inspector walked into the number 2 entry and noted that the air didn’t feel right. He
took a reading and found that the air was low. MEAV refers to the velocity on the wide side of
the curtain. Tr. 1354. Brody’s methane dust control plan requires an MEAV of 45. When asked
if he still believed that the violation was serious, given that the reading he obtained was 80% of
the required amount, the Inspector affirmed that he did consider it to be serious because the
equipment is operating on that wide side. The velocity is important because it is removing the
gas and dust away from the miners and putting it behind the curtain, all with the purpose of
preventing prolonged exposure to that gas and dust. Tr. 1359-1360. The Inspector, at the
Court’s suggestion, drew a sketch to help with the understanding of the cited condition. Gov.
Ex. 38 D. Tr. 1360-1369. Brody’s Barry Browning was with the Inspector at that time and a
roof bolting crew of two men was then installing bolts there. Tr. 1372. The Inspector’s concerns
were methane and respirable dust. Thus, his concerns had two aspects. The low air moving
through the entry being insufficient to get rid of the methane should a methane pocket be
encountered. Tr. 1373. Though he found no methane at that time, he noted that the mine is on
the 5 day spot inspection regime, reserved for the highest methane producing mines. Methane
can arise all at once or levels can slowly increase. The roof bolting machine, in the process of
performing that task, provides an ignition source. Tr. 1375.
The Inspector considered the violation to be S&S because the required level of 45
represents the minimum safe level, as per the Mine’s plan. Tr. 1378. Here, the level was “well
below” that minimum. He did state that not every level below the minimum would be S&S, but
at least here, with a reading 20% below the minimum, he considered it to be that. Tr. 1379.
Should a methane ignition occur, burns and possibly fractures could result. Tr. 1379.
Inspector Jackson did state that the foreman and the roof bolt operators told him that
there was sufficient air when they started. However, he could not account for anything that
would cause the claimed reduction after they started. Tr. 1381.
Turning to his other concern, that of dust, the Inspector stated that with the low air, the
roof bolt operators will be exposed to the dust as they perform their task. This dust is right above

36 FMSHRC Page 3012

where the roof bolt operators are doing their work, though it is not constant during that work,
occurring when the hole is started and if the drill steel gets clogged. Tr. 1383. While he did not
actually see dust when he found the violation, his knowledge of dust occurring during such work
is based his experience in operating a roof bolting machine. Such dust creates the hazard of
black lung silica being inhaled. Tr. 1385. The Court commented at the conclusion of the direct
testimony that it could be viewed as a situation where the Secretary, concerned about the S&S
quality of the alleged violation, decided to add the health S&S claim. Tr. 1388-1389. Although
there was an oblique reference in his notes that “encountering methane, prolonged exposure to
dust with low visibility” (Tr. 1388), the Inspector did not mark it as a health violation, marking
only “safety” for the citation.
Upon cross-examination, it was noted that Brody employees asserted that they had 6,195
CFM at the start of the bolting and if that were accurate, the condition found by the Inspector
would have existed for less than 30 minutes. Tr. 1389-1390. The Inspector’s notes themselves
reflect “[t]his condition just happened” and the Inspector stated that was why he marked the
matter as low negligence. Tr. 1390. A factor beyond simply the low reading in the Inspector’s
decision to mark the violation as S&S was that the miners were not done with the face; they were
continuing to advance. As they continue to advance, more air will be lost as they cut further. Tr.
1396. However, the Inspector admitted that he did not know how much work remained for them
to finish bolting that entry. Tr. 1397.
On re-direct, elaborating on his S&S determination, the Inspector reaffirmed that the
gassy nature of the mine was a factor. Tr. 1399. Also, roof bolters can encounter pockets of
methane and an explosive level could occur. Tr. 1400. The Inspector did acknowledge to the
Court that he was not suspicious of the operator’s claim that the air reading was fine thirty
minutes earlier. Tr. 1401.
At the conclusion of the testimony, the Court expressed reservations about whether this
violation was S&S. Upon further review, it adheres to that view. In the Court’s estimation, the
third Mathies element was not established. The Court concludes that safety, not health concerns,
were the basis for this citation. Given the short duration both of the condition and the time it
would continue, the third element was not established. The proposed penalty was $1,657.00 and
upon consideration of the statutory criteria and the absence of the S&S element, the Court
imposes a civil penalty of $1,000.00.
Citation No. 7167400, from Docket No. WEVA 2013-1055
As with the citation just addressed, Brody challenges only the S&S finding associated
with this. Tr. 1409-1410. For this admitted violation the condition or practice section states that
“[t]he operator is not following the approved ventilation plan on the number 3 section (006-0
MMU). The air was found to be reversed in the number 1 and 2 return entries. The air was
moving Inby (sic) into the gob area. Standard 75.370(a)(1) was cited 57 times in two years at
mine 4609086 (57 to the operator, 0 to a contractor).” Gov. Ex. 39A. The 104(a) citation was
issued by Inspector James Jackson to Kevin Webb, Brody foreman.

36 FMSHRC Page 3013

The Inspector stated that he was at the mine on an E02 spot inspection and had started his
imminent danger run when he discovered that the air was reversed in the return. Tr. 1411. Gov.
Ex. 39 B, is a drawing depicting the air reversal found by the Inspector. Tr. 1413-1424.
The Inspector marked the exhibit to reflect the violation, again which Brody does not dispute,
where he took his readings, and the incorrect air flow location. The Court then asked the
Inspector to explain the significance of the incorrect flow. He stated that “[t]he air flowing in the
wrong direction is putting all the methane from the return back over the top of the miners and
back over the top of the equipment while it’s running, while they’re pillaring.” Tr. 1426.
Elaborating, he stated that “[t]he return air would be coming onto the section with methane [and
that] was my concern, bringing the methane over the top of the miners and the equipment.” Tr.
1428. Inspector Jackson confirmed that there was an active continuous miner up on the pillar
line at the time he was present, that is to say, it was taking out pillars and producing coal. Tr.
1428. Methane was the hazard about which the Inspector was concerned. Tr. 1429. With his
handheld methane detector, he had a reading of .05 percent methane. He also took bottle
samples at that time. Lab results from those samples showed .11 percent methane. Tr. 1430.
Gov. Ex. 39 D. The Inspector had no concern with the return air going out through the gob, nor
with any methane ignition back at the gob. Tr. 1431. However, a methane ignition could
potentially affect any miners working on the section. Tr. 1432.
Upon cross-examination, the Inspector acknowledged that his notes reflected that “[t]his
condition could expose eight miners to hazards of the return air course reversing back to the gob
area” and that “[i]t is reasonably likely that this condition would cause an accident if it were
allowed to exist” and that “.05 percent [i.e. one half of .1 percent, per Tr. 1452.] CH4 was
detected in the return at citation time” and that “[t]his condition would cause a permanently
disabling injury if an accident were to occur. This would be from the return reversing and
leading [ ] up the gob area with methane and having an ignition.” Tr. 1436-1437. It was then
noted that the Inspector’s notes make no mention of air leaving the return entries and migrating
over to the section. Tr. 1437. Instead, his notes reflect only a concern of air going backward in
the return entry and then to the gob. Tr. 1439. Although the Inspector conceded that, by its
nature, there is no equipment in the gob, he still stated that there can be ignition sources there.
This can occur when a roof collapses and roof bolts can spark when they break off during such
an event. Tr. 1440. The Inspector agreed that he could not dispute testimony that air will go into
the gob in this location and exit through the return air shaft at the old Jupiter mine. Tr. 1441.
Again, the Inspector conceded that his notes only refer to air exiting into the gob. Tr. 1442. In
Gov. Ex. 39 B, the shaded area represents the gob. (The words “positive pressure” appear over
that shaded area; the area above that, with the L’s represents the bleeder system itself.) The
Inspector agreed that, at least based on his notes, there is no mention of air leaving the returns
and migrating over to where miners were working. Tr. 1450. He never checked to determine if
the air was flowing over towards the miner but with the air reversed it will make its way towards
the strongest pull. Tr. 1451. The Inspector then agreed that the area where he found the air
reversed is examined every four hours. Tr. 1453. However, it was the Inspector’s contention
that in order for the reversed air to get into the gob, it will travel through the working section.
Tr. 1456, 1463.
When questioned by the Court and relying upon R’s Ex. 21 C, and assuming that the
preshift exam reflected there is accurate, and its indication that the condition cited by the

36 FMSHRC Page 3014

Inspector did not then exist, the Inspector agreed that the reversed air existed for 3 ½ hours at
most. Tr. 1459.
Though prolonged in the examinations, the essence of the violation was that being return
air, which by definition is air that has been used and therefore is no longer fresh air, such air is
supposed to go away from the miners, but with the reversal he found, and which reversal the
operator acknowledged was present, the bad air goes back to the miners. Tr. 1466. Upon
questioning by the Court, the Inspector agreed that the discrete hazard was used air with methane
going back over the miners working at the face and then onto the gob. Tr. 1470-1471. The
Court then inquired what the reasonable likelihood was. Inspector Jackson responded that, but
for his finding the reverse air problem, “that condition would continue to exist and continue to
allow methane to come up - - up those entries and over on the miners. [He could not] say that
[the methane is] always going to be .05 or .11 percent methane. It may increase; it may decrease
[but he has] got to look at the worst. And to me, it was reasonably likely at this mine, since they
are on methane spot for liberating a lot of methane, that the methane is going to continue to
accumulate in that return and come up over top of the[] miners. And the [continuous] miner
itself is an ignition source. When they’re cutting the rock, you know, cutting the sandstone, th
bits cause sparks and that we have had ignitions from [continuous] miners recently.” Tr. 14711472. In further redirect, the Inspector restated that the discrete safety hazard was the air
reversal bringing methane across the section and back into the gob. Tr. 1474.
In its defense, Brody called Kevin Webb to the stand again. As noted, he was with
Inspector Jackson at the time this citation was issued. Mr. Webb stated that there was no
equipment in the gob, nor ignition sources, nor power sources. Air which enters the gob goes
into a bleeder system and then exits to the outside. Tr. 1478. Webb agreed that Exhibit 39 B
basically shows the way air would be moving in the No. 3 section at the time of the citation.
Regarding the central controversy, Mr. Webb stated “not to [his] knowledge” would any return
air be migrating over to the section on that day. Tr. 1483. He asserted that it was not possible
for the reversed air in the 1 and 2 entries to migrate over to the working sections. Tr. 1484. He
based this view upon the 1 and 2 entries being separated from the pillar section by permanent
stoppings. Because of this, he maintained that the air, however it was flowing, would either go
out one return shaft or the other return, which was the main return. Tr. 1485. He also stated that
those entries would be examined ever four hours. With that statement, Webb was then directed
to the on-shift records for that day, with the implication that an exam would have occurred
shortly thereafter, and that the reverse air problem would have been noted and corrected. Tr.
1486. Speaking to the S&S issue, Mr. Webb did not feel that the reverse air was reasonably
likely to result in a reasonably serious injury because it was return air which was separated and
would exit, as he stated earlier, through one of the two returns. Tr. 1488.
On cross-examination, Webb did not agree with the assertion that that were genuine
ignition sources in the gob. Tr. 1489. Subsequent cross-examination did not shed light on the
S&S issue. Tr. 1490-1503. As Mr. Webb characterized the admitted violation as a “paper”
violation, the Court inquired about the basis for that opinion. Webb agreed that, because of the
presence of the permanent stoppings, the violation was technical only, as the air was still return
air and would exit as he previously explained. Tr. 1507-1508. Thus, he asserted that, “it would
be impossible for the air to go back toward the section because of the intake air pressure.” Tr.
1508.

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At the conclusion of the testimony for this citation, the Court noted that if it were to find
Mr. Webb’s testimony credible it would be difficult to find that the violation was S&S. Tr.
1517. Having reviewed the record and the contentions of the parties, the Court does find Mr.
Webb to have been a credible and persuasive witness for this citation. The admitted violation
was not S&S, as the second, third and fourth elements were not established per the burden of
proof on the Secretary. Given the Respondent’s credible testimony, and upon application of the
statutory criteria, a civil penalty of $2,000.00 is imposed.
Citation No. 8155960, from Docket No. WEVA 2014-620.
Inspector Jack Hatfield testified for the Secretary. That Inspector issued the section
104(a) citation on May 29, 2013 to Brody foreman Virgil Hatfield. The condition or practice
section of the citation stated: “The Approved Ventilation Plan is not being followed on the 005
MMU. When measured with a calibrated anemometer, the blades of the anemometer would only
barely turn behind the end of the line curtain in the #7 entry where the scoop is found. Four
tenths of one percent methane is found in the working place where the scoop has cleaned one rib.
This condition would contribute to an ignition of methane while operating the scoop in the
working place. This mine is on a 103(i) five day spot inspection for excessive methane
liberation. Standard 75.370(a)(1) was cited 63 times in two years at mine 4609086 (63 to the
operator, 0 to a contractor).” Gov. Ex. 48 A.
Inspector Hatfield stated that he was on the 005 MMU that day, traveling up into the
No. 7 entry up to the face where he found 4/10ths of a percent methane. Tr. 1526. That reading
was taken within 12 inches of the face. The area was roof bolted to the face and a scoop was
present, preparing to scoop the right rib, as it had just scooped the left rib. Virgil Hatfield got the
same methane reading on his own device. Tr. 1529. The Inspector then took an air reading of the
air flow behind the end of the line curtain, and found that the anemometer blades would just
barely turn. Tr. 1530 and the Inspector’s sketch of the scene he encountered. Gov. Ex. 48 D.
Virgil Hatfield then began yelling to the scoopman about the ventilation issue. He did not
challenge the accuracy of the Inspector’s attempt to measure the air flow, or more accurately, the
lack of air flow. Tr. 1531. The minimum required air is 3,000 cfm. Gov. Ex. 48 B and Tr.
1532. As for the cause of the air shortage, the Inspector learned that the curtain was pinched
against the rib, blocking air. In tacking up the curtain so that the scoop can clean, one must do
that in a manner so that air will still flow. This is done by creating a tunnel in the curtain for the
air to travel. In this instance the tunnel was incorrectly done, causing it to be pinched and
blocking the air. Tr. 1542.
The Inspector believed that with the pinched curtain, and the 4/10ths of 1 percent
methane present, this indicated that methane was starting to accumulate. Yet, the scoop still had
to clean the right rib and he was concerned about that machine’s continued operation under those
conditions. Tr. 1542. Thus, the scoop itself, with its battery terminals, the wiring, a light on a
scoop, and batteries themselves, all presented an ignition source, according to the Inspector.
However, he did not find any safety issues with the scoop then being used. Tr. 1543. Yet, the

36 FMSHRC Page 3016

Inspector still believed that scoops, by their nature and through their normal operation duties,
present possible problems and by those, ignition sources. Tr. 1544-1545. Methane was the
hazard that worried the Inspector. Tr. 1545. While the 4/10ths of 1 percent was not an explosive
level, he was concerned that the methane level would rise, given the lack of ventilation. Tr.
1549. Inspector Hatfield stated that he couldn’t know how long it would take for an explosive
level of methane to develop. Tr. 1550. He then stated that it could develop in a short while from
as little as 20 minutes. The Inspector then estimated that the scoop would need to remain in that
area for another 30 minutes to clean the right rib and then to apply rock dust. Tr. 1552. He
stated that it was reasonably likely that sufficient methane could accumulate during that period of
time to cause an electrical arc, which, at a minimum could result in burns. He added that an
explosion was reasonably likely by the time the scoop finished cleaning the area. Tr. 1552. That
the area had not been rock dusted and the accumulation of materials on the rib’s right side, also
contributed to that hazard’s occurrence. The Inspector marked the negligence as moderate
because he had discussions with mine employees, including foreman Virgil Hatfield, about how
to ventilate and because the mine operator was in the best position to make sure the ventilation
was proper. Tr. 1554. This involved making sure that the ventilation “tunnel” was properly
installed to ventilate the face. Tr. 1555. In response to a question from the Court, the Inspector
ultimately agreed that once the scoop had finished the cleanup and the area had been rock dusted,
the risk was over. This entailed a period of about 30 minutes. Tr. 1558-1559.
During cross-examination, the inspector agreed that after the scoop finished its task, a
new air reading would be required before cutting resumed. Tr. 1560-1561. The abatement
required that the curtain be pulled away from the rib and re-tacked properly to it. No defects
were found on the scoop that day, though the Inspector stated that he did not inspect it either. Tr.
1564. The face was considered to be idle at the time of the citation, with the consequence that
3,000 cfm was required at that time. Thus, the Inspector could not state that the air remained
insufficient once the continuous miner resumed its work. Tr. 1565. The Inspector also agreed
that the continuous miner in the process of cutting coal sprays water and that accounted for the
Inspector’s acknowledgment that the coal along the rib was damp. Tr. 1567. As a consequence,
at least sometimes the coal spillage from the shuttle car will also be damp from that earlier
spraying. Tr. 1568.
The Court concluded that this matter came down to an analysis of S&S in the context of
30 minutes of time, and after hearing the testimony from the government, announced that it
found that it was not shown to be S&S. Tr. 1571-1572. Given the short duration of the window
of concern, the dampness of the coal, the minimal amount of methane found, the absence of any
problem with the scoop, the S&S characteristic was not established by the government. Upon
consideration of the evidence, a civil penalty of $3,000.00 is imposed.
Citation 8155954 from Docket No. WEVA 2014-620
Citation No. 8155954, a section 104(a) citation, was issued on May 21, 2013, by
Inspector Jack Hatfield and served to Brody foreman Kevin Webb. The condition or practice
section of that citation states: “The Approved Ventilation Plan is not being followed on the 005
MMU. When measured with a calibrated anemometer, a mean air velocity [i.e. mean entry air
velocity or MEAV. Tr. 1579] of 40 is found in the #5 right break where the roof bolt crew is

36 FMSHRC Page 3017

observed installing roof bolts. This condition contributes to the exposure of excessive dust,
including respirable dust while drilling the mine roof and coal ribs. The Approved Plan requires
minimum mean air velocity of 45 to be maintained at the end of the line curtain. This active
MMU is on a reduced standard of 1.2 mgm3 due to excessive quartz. Standard 75.370(a)(1) [the
standard cited for this citation] was cited 62 times in two years at mine 4609086 (62 to the
operator, 0 to a contractor).” Gov. Ex. 47A. In preparation for his testimony, the Inspector drew
a sketch of the condition he cited in order to aid in the understanding of the violation. Gov. Ex.
47D. Brody admitted to the violation, challenging only the S&S designation. Tr. 1576-1577.
A factor in the Inspector’s S&S determination rested upon the mine being on a reduced
dust standard due to its excessive quartz. No dust sampling was done that day but the key
finding for the Inspector was the lack of the required mean air velocity. The mine’s ventilation
plan requires a MEAV of 45 and that is the minimum requirement. Tr.1579-1580. The Inspector
stated that without the minimum required air, miners are exposed to dust from bolting and he
stated that there is also a hazard of methane accumulation. Tr. 1583. For the methane issue, the
Inspector stated that the mine bolts ribs and that process creates sparks as they drill. When he
arrived at the scene, there was still more bolting required to be done, a tasks that he estimated
would take another 30 minutes or so. The entire task of bolting the area would take, he
estimated, about 50 minutes to an hour. Tr. 1584. The Inspector took his air reading and that
number is not challenged by Brody. However, he also took a methane reading, but found no
methane at that time. He believed there was still a methane hazard however because the bolting
process was not finished and the mine is on the 5 day, high methane, spot inspection regime. Tr.
1585. The air reading below the minimum contributed to the risk of a methane ignition. This
factor was coupled with the bolter drilling process which creates an ignition source. Tr. 15861587. The risk of encountering methane is chiefly during drilling ribs than the roof. Tr. 1593.
When asked if the fact that since the minimum air at 45 and his reading at 40 were close,
was a factor in determining the S&S characteristic, Inspector Hatfield responded, “No.” Tr.
1586. Hatfield believed that there was a reasonable likelihood that the violation, when
considered with the hazard of methane, would contribute to an injury. He added that severe
burns would be the expected injury to result. He did not see any dust at the time he noted the
violation, though normally dust is created during the roof bolting process. Tr. 1588-1589.
However, the drill has a vacuum component to capture dust, though it does not capture all dust.
Tr. 1589-1590.
Upon cross-examination, the Inspector went over the procedure he employed in taking
his air reading and also agreed that he found no methane at that time. Tr. 1595-1597. The CFM
behind the end of the line curtain was 4,473, which amount exceeded the plan minimum. Tr.
1597. Hatfield did not know, as represented by Brody’s Counsel, whether his velocity reading of
40 translated into a 12 percent insufficiency. Tr. 1598. He disagreed with the suggestion that, as
there was no methane found, that there was no likelihood that methane could accumulate in the
30 minutes remaining for the bolting process to be completed. He based this view upon one
never knowing when methane will be encountered. Tr. 1600. Though he didn’t observe any
dust, the Inspector noted that the bolters had stopped their work when he arrived and he stated
that there was dust on the mine floor, though his notes did not record that. Tr. 1602. He did not
believe that the mean air was sufficient to remove any dust the drillers could encounter. Tr.

36 FMSHRC Page 3018

1602. He acknowledged that he did not know if there was any impermissible amount of dust in
the air at that time. Also, he did not know what the air level was before he arrived at the
location. Tr. 1604. He did agree that the bolting in that area would have been completed in 25
to 30 minutes. Tr. 1606. To the suggestion that a new air reading would be taken when the
bolter goes to the next entry, the Inspector stated that he did not know if that was a requirement
at the Brody mine but could not dispute it. Tr. 1607.
In response to the Court’s inquiry, the Inspector stated that if he had found a reading of
44 he would also have concluded that the violation was S&S. Tr. 1609. Anything below the
minimum, because of the quartz, would be S&S, as far as the Inspector was concerned. Also, as
noted by the Court and acknowledged by the Inspector, when the citation was issued, the
Inspector did not list any safety concerns. Tr. 1613. Though later contradicted in testimony by
another inspector in these proceedings, Inspector Hatfield asserted that his computer program did
not allow him to check both safety and health concerns when filling out the citation. However,
he stated that glitch had since been corrected. Tr. 1614. The Court noted that there was no
barrier to the inspector including both safety and health concerns in the body of the condition or
practice section of the citation. Tr. 1615.
In its defense, Brody recalled foreman Kevin Webb, the individual to whom the citation
was issued. Mr. Webb stated that before a cut is made with the miner in place, an air reading is
taken behind the line curtain and also the mean air reading is done before a cut and before
bolting. This is done by the section foreman. Tr. 1618. Webb also stated that he did not observe
any dust when the citation was issued that day. Air readings are taken every time a roof bolter
moves into a different entry or crosscut and this occurs before bolting starts. Mr. Webb also
identified the pertinent on shift report, which reflects no methane was present that day. Tr. 1621.
On cross-examination, Mr. Webb acknowledged that he doesn’t personally know that
these air readings are always done and that he presumes that the foreman will be doing those
readings as it is part of that person’s job.41 He also stated that the low MEAV was caused by a
line curtain which needed to be tightened up. Tr. 1623. He acknowledged that it is possible that
the line curtain became loose right after the on-shift exam occurred. Therefore it was at least
possible that the low air existed the entire time the roof bolters were in that area. Webb also
agreed that the roof bolting machine generates dust and that if there is inadequate ventilation in
the area, that would contribute to the hazard of dust exposure and that the same inadequacy can
contribute to a methane accumulation. Tr. 1624. Mr. Webb also agreed that a roof bolter could
encounter a pocket of methane as he is working. However, he also pointed out that, in his view,
there was still sufficient air behind the line curtain to keep the methane out. Tr. 1625. Upon
further questioning, Mr. Webb did agree that any amount below the required air contributes to
the hazard of a methane accumulation. Tr. 1626. He also agreed that the normal roof bolting
process creates ignition sources, and sparking, arcing, friction and heat. Tr. 1629.
41

The Court asked additional questions about this because it was concerned that if Brody
had no requirement to write the information about the air velocity and the mean air velocity, it
had no means to be sure that people were complying with the requirement. Mr. Webb could only
respond that it is part of such individuals job duties to take those air measurements. Tr. 16271628.

36 FMSHRC Page 3019

This violation was originally assessed at a proposed $8,893.00. The Court notes that the
Inspector did agree that the bolting in that area would have been completed in 25 to 30 minutes.
Also, as noted by the Court and acknowledged by the Inspector, when the citation was issued,
the Inspector did not list any safety concerns. On the basis of the evidence, only the health
concern was genuinely in issue. Given that the drill has a vacuum component to capture dust,
and even though it does not capture all dust, when coupled with the unrefuted insufficiency of
12 percent and the short period of possible exposure, the Court concludes that the S&S element
was not established in that the third and fourth Mathies’ elements were not established according
to the burden of proof required of the Secretary. Given this finding, the Court has determined
that a $4,000.00 is appropriate upon consideration of the statutory criteria and it so imposed.
Citation 9000282 from Docket No. WEVA 2014-620
This Citation, per Gov. Ex. 49A, was settled. The Secretary has dropped the S&S
designation and modified the gravity from reasonably likely to occur to unlikely.
Citation 9000311 from Docket No. WEVA 2014-620
This Citation, per Gov. Ex. 50A, was settled. Brody has agreed to accept the citation, as
issued, including the S&S designation and to pay the proposed penalty assessment.
Citation 9000312 from Docket No. WEVA 2014-620
This Citation, per Gov. Ex. 51A, was settled. Brody has agreed to accept the citation, as
issued, including the S&S designation and to pay the proposed penalty assessment.
Citation 9002292 from Docket No. WEVA 2014-702
This Citation, per Gov. Ex. 52A, was settled. The Secretary has dropped the S&S
designation and modified the gravity from reasonably likely to occur to unlikely.
Citation 8137713 from Docket No. WEVA 2013-997
The Secretary called Inspector Timothy Crawford for this section 104(a) citation. Issued
October 9, 2012, to Brody foreman Willard Bourne, the condition or practice section of the
citation stated: “The Approved Methane and Dust Control Plan is not being complied with on the
005-0 MMU at this mine. When checked with an approved calibrated anemometer, the quantity
of air at the end of the line curtain in the #7 Entry where the roof bolter is operating is found to
be 561 cfm. This condition exposes the roof bolter operator’s (sic) to hazards associated with
excessive dust which can result in permanently disabling illnesses and crushing injuries due to
limited visibility and can also result in a methane build-up in the working face, etc. This mine is
on a 5 day 103(i) spot for methane liberation. Standard 75.370(a)(1) was cited 57 times in two
years at mine 4609086 (57 to the operator, 0 to a contractor).” Gov. Ex. 40A.
Both the safety and health boxes were marked by Inspector Crawford on this citation.
Upon arriving at the 005MMU, the Inspector heard the roof bolter running. As he did so, he

36 FMSHRC Page 3020

noticed air in the intersection blowing and the fly pads were blowing. Tr. 1641. Those fly pads,
designed to direct air to the working face, were blowing straight up, and this allowed air to
bypass the No. 7 face. To help explain the condition he encountered, the Inspector drew a
sketch. Gov. Ex. 40E. The Inspector took his air reading behind the curtain. The end of the line
curtain was marked on the sketch. Tr. 1647.
The Inspector explained why he wrote the citation: “After I noticed that the air was
moving through the fly pads, I decided to take an air reading. The -- both bolter operators were
around their drill pots. They weren't actively drilling holes or in the process of bolting while I
was there. So I went up and took the air reading behind the curtain.” Tr. 1648. He added that
the air was bypassing the No. 7 entry. The fly pads are to direct the air towards the working
face. As a result, the air was directing the fly pads, whereas the purpose is for the flypads to
direct the air. Tr. 1650. While the roof bolters were not bolting at that moment, the machine was
running and its pump motor was running. As he recalled, one rib bolt had been installed and this
location was marked on Exhibit 40 E. While the Inspector’s citation is listed as served to
Willard Bourne, he did not believe that Mr. Bourne was present when he took his air reading nor
when he issued the citation. He thought that Mr. Bourne arrived after that. The Inspector then
went into some detail about his air measurement, and how and where he took it. Tr. 1654-1657.
Upon doing so, he had a reading of 34 feet per minute. This was used in making his calculation
which yielded a quantity of 561 cfm (cubic feet per minute). Tr. 1657. In contrast, the
ventilation plan requires 4,000 cfm during roof bolting operations. Gov. Ex. 40B, Tr. 1658.
Upon his reading, he told the roof bolters of the results and that he was issuing a citation.
It was about that time that foreman Bourne arrived and the Inspector repeated the same
information. The foreman’s response was to challenge the citation because he contended that the
bolting had not started. Tr. 1662. At that point the Inspector showed the foreman the clean bolt
the crew had just installed. Once Bourne saw that he dropped his challenge. Tr. 1662.
In terms of his concerns over hazards associated with this violation, the Inspector stated
he was concerned about methane ignitions. It is common, he stated, for sparks to occur in the
bolting process. He also was concerned about respiratory problems and reduced visibility.
While he found no methane at that time, it can arise at any moment. Also, right after a cut is
mined, methane will often leak from the ribs and floor and in a situation as this, involving 30 to
40 feet with no ventilation, methane could build up. Tr. 1664. He estimated the time for the
miners to bolt the area to be from 45 minutes to an hour and fifteen. He believed that, all things
considered, it was reasonably likely for an explosive accumulation of methane to have
developed. In part, this view was based on the observation that one never knows when one will
hit methane. Tr. 1665. The Inspector also identified multiple ignition sources on the roof bolter
itself, though he did not examine the bolter that day. Asked how the low air contributed to the
hazard of methane accumulation, the Inspector summed up his concern: “The 561 CFM was, in
my eyes, substantially lower than 4,000. If you don't have the air that's required to sweep out the
methane -- I mean, that's the routine of the system. The ventilation system is to sweep the
methane and dust from the working places.” Tr. 1666-1667.
The Inspector also spoke to the likelihood of the contribution to an injury. “Q. Now, the
hazard of a methane accumulation, is it reasonably likely that would contribute to an injury?

36 FMSHRC Page 3021

A. Yes. Q. How would it contribute to an injury and what kind of injuries? A. If you have
an ignition, best case scenario, I mean, is -- I hate to refer to it as a best case, but you would only
get burns sustained in the miner or is likely to -- you'd only get burns. If it ignited the coal dust,
it could be quite a bit more catastrophic.” Tr. 1667.
Though he didn’t observe dust at the time of the violation, normally roof bolters do
encounter dust when installing bolts. As the roof bolting is done at the top, there will be more
silica and “stuff” from the rock. With the dust not being swept away as required by the plan, the
dust will linger longer around the bolt operators. He did not believe that 561 cfm was sufficient
to sweep away the dust. Tr. 1669. Additionally, normally dust is generated during bolting, and
inadequate ventilation would make matters worse. The scoop operator may also have reduced
visibility in such circumstances of substantially reduced air levels and possibly hit a bolter. With
the inadequate air, he also had health concerns, as the bolters would have prolonged exposure to
the dust. Such exposure subjects miners to the risk of developing pneumoconiosis, silicosis, or
as it is commonly called, black lung. The Inspector’s marking the negligence as moderate was
primarily based on the standard having been cited 57 times in two years. Another factor was the
obviousness of the violation. Also the fly pads issue was obvious. The foreman should have
noticed the issue. Tr. 1673. The condition was abated to deal with the problem of the air not
being directed to the working face.
The cross-examination covered the usual bill of fare with matters such as that there was
no methane detected by the Inspector at the time he found the violation, that his imminent danger
run found no issues; that no continuous miners were running at the time of the violation; and that
the inspector was not running dust sampling that day. Tr. 1675-1685.
In response to the Court’s question whether the Inspector considered the health concern
or the safety concern to be S&S, he responded that it was both, with the stronger of the two being
the safety hazard. Tr. 1685.
In its defense, Brody called Willard Baxter Bourne, the foreman who was served the
citation in issue. Mr. Bourne is presently employed by Brody, working as a fire boss. His mining
work history is extensive, covering some 44 years. At the time of this citation’s issuance, Mr.
Bourne was a section foreman. Though his name appears on the citation, he stated that he was
not the person served with the citation. He stated that he did take an air reading before the
continuous miner went into the No. 7 entry and that there was sufficient air at that time. Tr.
1693. He then went on to other duties but upon returning to the right side, he was told by the
miner operator that he had damaged a rib bolt. Tr. 1694-1695. He then ordered repairs but again
took an air reading and found, again, sufficient air. Tr. 1695. Mr. Bourne contended that
“everything looked good” and that the air he measured was okay as well. Tr. 1697. However
the Inspector stated that the air was insufficient but Bourne’s contention was that the workers
were replacing the damaged rib bolt, the implication being that the section was down at that time.
Tr. 1698. Bourne also stated that he saw no dust in the area and that there was no hazardous
methane level present either. He further contended that the inspector wouldn’t let them lower the
curtain, at least that is what his operators told him, and that to abate the condition all they had to
do was lower that curtain. Tr. 1704.

36 FMSHRC Page 3022

Upon cross-examination, Mr. Bourne stated that he took notes of the incident and turned
them in to Mr. Morrison with the mine’s safety department. The notes were to be returned to
Bourne, but they never were. Tr. 1706-1707. Even without his notes, Mr. Bourne seemed to be
able to recall the events with great detail, including air measurements. Tr. 1708-1711. He
maintained that he ordered the rib bolt to be replaced and then, once that was completed, they
would re-establish the air. Tr. 1714. To make the repair, the curtain had to be rolled up. Tr.
1714. In fact, Bourne stated that he helped them roll up the curtain. Tr. 1715.
However, Mr. Bourne agreed that the ventilation plan requires 4,000 cfm of air behind
the curtain when installing the rib bolt. Tr. 1720. In response to questions from the Court, Mr.
Bourne initially acknowledged that he did not dispute that the Inspector got an air reading of 561
cfm and that such a reading is below the required amount, but he then stated that the reading was
not in fact right. Tr. 1721-1723. There were moments of confusion as to what the witness was
contending about the matter, though the confusion may have been on the Court’s part. Still,
pursuing the matter further, Mr. Bourne stated that the fix he ordered for the rib bolt would not
have caused any reduced air flow. Tr. 1724. In sum, Mr. Bourne stated that he could not
account for any reason to explain the reduced air flow claimed to exist by the Inspector. Tr.
1725.
In further cross-examination by the Secretary, Mr. Bourne acknowledged that something
could have happened in the interval of time between 6:25 and 7:45 to account for the diminished
air reading. Tr. 1727. Thus, to restate Mr. Bourne’s position, the curtain had to be raised up to
deal with the rib bolt problem and then to abate the citation, the curtain needed to be rolled back
down. Tr. 1727. Bourne also contended that there was no work site established where the
Inspector took his reading and he denied that there was any issue with the fly pads. Tr. 17311732. He did methane could suddenly arise during a roof bolt installation but that it could reach
an explosive level only if there is no ventilation. He also agreed that roof bolters generate
ignition sources when they are installing bolts and that having only 561 cfm would contribute to
the hazard of a methane accumulation and that the injuries of an ignition would include burns.
R. 1732-1734. He did not feel that dust could be an issue because the roof bolting machine has a
vacuum to draw in such dust. Mr. Bourne summed up his perspective of the citation by stating if
the inspectors had not shown up, the roof bolters still would have dropped the curtain after the
repair, checked the methane and taken an air reading and then re-established themselves 15 feet
inby to start a new work site. It is fair to state that his remarks were supported with his
additional testimony concerning his view.42 Tr. 1735-1736. Sensing perhaps that Mr. Bourne’s
testimony had been damaging to the Secretary’s contentions,43 Counsel for the Secretary then
42

During additional testimony on redirect, Mr. Bourne explained the basis for his view
that the Inspector took his reading from an incorrect location in that it was not taken at the
established workplace. Tr. 1743-1746. Bourne’s position was that the established workplace
was the location where the rib bolt repair was being done and that there was 4,000 cfm at that
location. Further cross-examination, at Tr. 1746. The Secretary opted not to provide testimony
in rebuttal. Tr. 1748.
43

In fact, the Court later commented openly and favorably about its view of Mr.
Bourne’s testimony, remarking that it found it both credible and honest. Tr. 1742.

36 FMSHRC Page 3023

raised objections about not being provided with Mr. Bourne’s notes, which the witness had
referenced as having been taken near the time of the citation but that he no longer knew of their
whereabouts, though he turned them in to Brody. Suffice it to say that the Court addressed this
concern but that the entire issue of notes and the parties’ obligations to deliver them to each
other, was disputed. Thus, the late-raised issue did not lead to the conclusion that Brody had
behaved improperly. Tr. 1739-1741. The Court directed Brody to look for any and all notes
related to these citations and, subsequent to the hearing it did so. However, the Court was not
about to have the delivered notes turn into a new subset of disputes over interpretations about
remarks in those notes.44
The Court has concluded that, based on all of the testimony, the Secretary did not
establish this alleged violation, Citation 8137713, and therefore it is DISMISSED.
Citation 7165682 from Docket No. WEVA 2014-620
For this matter, Brody admits to the fact of violation and all other aspects except for the
S&S issue. Tr. 1749. This section 104(a) citation, No. 7165682, issued July 24, 2013 by MSHA
Inspector Timothy Crawford states, in the condition or practice section that: “[t]he Approved
Ventilation Plan is not being followed on the 005-0 MMU at this mine. The Methane and Dust
Control portion of the plan states that a minimum of 8,500 CFM will be maintained at the end of
the line curtain and a minimum of 85 MEAV will be maintained during the mining cycle. When
checked with an approved calibrated anemometer, the air quantity in the #6 Face, where the C/M
is cutting/loading, is measured to be 6,840 CFM and 50 MEAV. This condition exposes miners
on this section to hazards associated with inadequate ventilation such as methane ignitions,
silicosis, CWP, etc. This mine is on a 5 day 103(i) Spot Inspection for methane liberation.
Standard 75.370(a)(1) was cited 68 times in two years at mine 4609086 (68 to the operator, 0 to
a contractor).” Gov. Ex. 41A.

44

In an email response to this issue, dated October 16, 2014, the Court advised the parties
as follows: “Here is what the parties should know: I have, presently, more than sufficient
information to decide each of the contested matters. Absent a “smoking gun” passage from the
notes, and by that I mean to include a note which is not capable of argument as to its meaning
and effect, the whole business of the notes will not impact my decisions. Pick any citation, as a
hypothetical example. To be considered beyond what I already have from the testimony and
exhibits, (again I am offering this as a hypothetical example) a note would have to say something
on the order of Brody saying “they got us on this one, as it is clearly S&S” in order for me to
reevaluate what I have. So, absent something of that order, let’s not go down a “cul-de-sac” if
you remember my analogy using that term at the hearing. Consistent with the above, and with
the briefs due as scheduled, I will give the Secretary until next Tuesday to, as Attorney Moore
suggested, “argue that specific notes should be added to the record . . . then they should have to
make a showing why any set of notes are relevant.” But again, I ask the Secretary to step back
and make sure that in the frenzy he is not engaging in what ultimately may be a waste of time
and effort.”

36 FMSHRC Page 3024

In testimony about the citation he issued, Inspector Crawford stated that when in the cited
area he notice dust suspended in the air, rolling back from the miner in the No. 6 entry and this
prompted him to determine if there was sufficient air to the face. Tr. 1751. For this conceded
violation, the Inspector drew a sketch to illustrate the conditions he found. Gov. Ex. 41 D. The
Inspector stated that the hazards that concerned him for this violation were the methane ignitions,
silicosis, health issues, and impaired visibility from the dust, risking miners being struck by
mobile equipment. Tr. 1753-1754. The citation marked both health and safety concerns for the
violation. While Crawford did not record any methane, the miner loading in the No. 3 face
detected .3 percent methane. However, the violation was found in the No. 6 face. Tr. 1754. The
miner had just started his cut and the time to finish it would be about an hour and forty-five
minutes. Tr. 1755. Contributing to the violation, the Inspector stated that the miner, when
cutting or loading, will throw sparks. Also, typically, methane will be liberated from the ribs and
floors during the mining cut. If a methane ignition were to occur, burns to the miner man and the
shuttle car operator would be likely. Tr. 1757. The Inspector also spoke to the dust hazard he
perceived. He analogized the dust level to driving into fog. The ventilation plan’s design is to
sweep away methane and dust generated during the mining cycle. One will not typically see dust
he observed when the ventilation is sufficient. The low visibility created by the dust posed the
risk of individuals being struck by mobile equipment. Tr. 1759-1763. While the fog was not so
thick as to block all visibility, the Inspector did state that it was sufficient to hinder it. Tr. 1763.
With 8,500 cfm being the required minimum air, the Inspector asserted that the 6,840 he found
was low enough to create the visibility reduction he observed. Tr. 1763. Injuries from such a
machine to person impact would include severe crushing and amputation. The dust also
presented a health hazard from silica by increased exposure. Further, the dust compounds the
methane hazard with the analogy of the methane being the wick and the dust serving as the
dynamite. Tr. 1765. He added that while the dust doesn’t add to the likelihood of a methane
ignition, it would contribute to the severity of one, should that occur. Tr. 1765.
During cross-examination the Inspector stated that the dust he observed was likely the
product of the shale rock that had fallen from the top that was being cut up at that time. In the
Court’s estimation, the cross-examination did little to dispel the Inspector’s testimony
concerning the basis for his S&S finding. Tr. 1767-1780.
In its defense, Brody called Virgil Hatfield, the foreman who was issued the citation. Mr.
Hatfield acknowledged that the Inspector had an air reading of 6840 but that his own reading was
8768. Tr. 1787. However, Mr. Hatfield could not recall if his measurement was taken after
abatement measures had been done. Tr. 1789. In attempting to rehabilitate that response, Mr.
Hatfield stated that very small changes, such as the way one holds one’s wrist, can impact the air
readings. Tr. 1790-1791.
During cross-examination, Mr. Hatfield acknowledge that his own notes reflect a mean
air reading of 64 but that 85 is the required amount, confirming that there was a violation, as
Brody admitted. Tr. 1799-1800. To abate the condition, Hatfield stated that they “fixed the line
curtain.” Tr. 1803. He also agreed that they stopped the continuous miner from operating
because the air was low and he didn’t want them operating in the hazard of low air. Tr. 18041805. He also acknowledged that no one can know when methane issues can arise and that
continuous miners create sparks sometimes as they work. Hatfield also stated that the miner’s

36 FMSHRC Page 3025

scrubber hose will suck up the methane, along with dust, if a miner is run long enough. Tr.
1807-1808. However, Mr. Hatfield did not agree with the required air CFM. He felt that 6,840
was sufficient, noting that used to be the required level. The change was prompted because
Brody “got a little bit on the dust pumps. When we [were] out of compliance on our dust
pumps.” Tr. 1810. He did not agree that the admittedly low air contributed to the hazards of
dust and methane. Tr. 1812.
Although the Court concludes that the safety basis for the S&S claim was not
established, the health basis was established, based upon the Court’s determination that the
Inspector’s testimony was more persuasive and credible. Accordingly, the Court concludes that
that S&S element was proven for each of the two disputed elements. The proposed assessment
for this was $8,893.00 and the Court concludes that, upon application of the statutory criteria,
that amount remains appropriate and is so imposed.
Citation 7168841 from Docket No. WEVA 2013-1055.
Citation 7168841, a section 104(a) citation, issued November 26, 2012 by Inspector
Joshua A. McNeely to Brody’s Aubrey Hartman, foreman, states: “The approved ventilation
plan is not being complied with. The continuous miners being operated in the #5 entry of the
Beaver Mains section does not have the required amount of ventilation. The miner is loading the
shuttle car and only 4,620 cfm is provided. The plan requires 8,500 cfm . Dust is visible in the
entry around both operators. This condition exposes miners to hazards related to respirable dust
and other hazards related to dust. This is a 5 day 103i spot inspection mine due to CH4
liberation. Standard 75.370(a)(1) was cited 57 times in two years at mine 4609086 (57 to the
operator, O to a contractor).” The Inspector marked “safety” in the box next to violation, box 9.
Gov. Ex. 42A. For this violation, Brody stipulated to the fact of violation and the moderate
negligence designation, and all other aspects, including items such as the air readings, leaving
only the S&S designation in dispute. Tr. 1814-1817.
Inspector McNeely stated that when he came upon the scene in the entry, the continuous
miner was loading the shuttle car and “there was visible dust around it, kind of stagnant looking
air . . .” Tr. 1819. The miner was at that time at the end of its cut, with cut taking approximately
30 minutes to an hour. He observed dust in the area where the men were working and it was “all
around them.” Tr. 1820. The dust was sufficient to affect visibility. Tr. 1820. He stated that
multiple hazards are associated with this. The less air one has, the more dust will be present and
there is a greater chance for methane buildup. Equipment operators have a greater risk of hitting
personnel under such conditions too. He did take a methane reading at that time and it did not
detect any methane then but the continuous miner’s display did read 0.1 percent methane. Tr.
1822. However, he noted that this mine liberates great quantities of methane, which is the reason
it is on a five day spot inspection. At this mine a pocket of methane can arise at any time and an
explosive level can develop in seconds. Tr. 1823. Related to this, the continuous miner itself is
an ignition source itself. The low air and methane risk go hand in hand as the less air, the greater
chance for a methane buildup. A methane ignition can result in burns and if coal dust is added,
fatalities may occur too. Tr. 1825. The dust he observed was either dust from mine rock or coal
dust and occurs in the cutting process. Dust doesn’t make a methane ignition more likely but it
could contribute to the damage if an ignition occurred. The dust also creates a safety hazard of

36 FMSHRC Page 3026

an accident occurring between the shuttle car operator and the continuous miner operator. Tr.
1829. The Court takes note that other witnesses for MSHA testified during the course of these
hearings to the same effect about the safety hazards attendant to dust reducing visibility. The
Inspector affirmed that the level of dust he observed was consistent with those safety concerns.
As he expressed it, “It was a pretty good bit of dust.” Tr. 1830. The related dust issues on health
were also part of previous testimony from MSHA witnesses and this Inspector’s testimony
echoed those expressions. Tr. 1833-1835. Ventilation controls were repaired and installed and
five men and two foremen were involved in that effort. Tr. 1836.
The cross-examination again reviewed familiar territory: that an imminent danger run had
been conducted previously; that no methane was then encountered; etc. The Inspector
acknowledged that the cut was almost finished and that the miner would then move to another
entry. Tr. 1838. After that, the bolting crew would move in and take an air reading to determine
if there was sufficient air. The Inspector had no indication that the miner’s scrubber was not
working, however, he added that he couldn’t say it was working properly given the amount of
dust. His concern was not over the miner’s scrubber; his focus was on the amount of dust he
encountered. Tr. 1840. The Inspector, in his notes, marked that Shanon [Dolin] the section
foreman, told him that he had an air reading of 10,000 CFM prior to the cut. Tr. 1841, 1850.
Still, while not directly challenging that assertion, the Inspector focused instead on the fact that it
took 55 minutes to make the corrections and provide the required amount of air. Tr. 1842. The
Inspector did not assert that the dust was so thick that the miner operator or the shuttle car
operator could not be seen. Tr. 1846.
Brody did not call any witnesses in its defense of this citation.
Upon review of the record and arguments, the Court finds that this admitted violation was
S&S. The Court finds that the Inspector’s credible testimony about the safety hazard attendant to
the scene he encountered for this admitted violation, established the remaining three Mathies
elements. Given the nature of this mine’s high methane liberation characteristic, an additional,
independent, basis for concluding that the violation was S&S exists on the record evidence. On
those twin safety-related bases, it is unnecessary to reach a conclusion about a health basis for an
S&S finding, though such a finding, if it were needed to be made, would not be unreasonable.
The proposed penalty for this was $7,578.00 and upon review of the record, the Court concludes
that upon application of the statutory criteria, that penalty amount remains appropriate penalty
and is so imposed.
Citation 7168866 from Docket No.WEVA 2014-620
Inspector Joshua A. McNeely again testified for the Secretary regarding Citation No.
7168866, issued January 14, 2013 and served to Brody’s Derek Morrison. The Citation states:
“The approved ventilation plan is not being complied with on the active #4 section 011-0 MMU.
The roof bolter is installing primary roof supports in the #4 entry without the minimum amount
of air. Only 3,276 cfm with a MEAV of 24 is being supplied to the end of the line curtain.
This condition exposes miners to respirable dust, and methane build up hazards. Standard
75.370(a)(1) was cited 60 times at mine 4609086 (60 to the operator, 0 to a contractor).” Gov.
Ex. 43A.

36 FMSHRC Page 3027

Brody admitted to this violation and stipulated to all related facts, including items such as
the air reading obtained by the Inspector, except for the S&S designation. Tr. 1855-1856.
Inspector McNeely stated that in traveling on the active No. 4 section he found that the
ventilation plan requirements weren’t met at the roof bolting machine. Tr. 1857. At that time,
the roof bolter was installing roof supports. The bolter was then at about 110 feet deep, so he
was near the end of that, leaving about 20 to 40 feet remaining before moving to another section.
The minimum amount of air required is 4,000 CFM, and an MEAV of 45, but the Inspector
found only 3,276 cfm with a MEAV of 24. Tr. 1859. The Inspector revisited the same safety
concerns which he expressed in the citation just discussed, next above. Essentially that concern
is that with less air comes more dust and the opportunity for methane buildup. Reduced
visibility, a safety concern, and respirable dust, a health concern, were again the hazards
identified by the Inspector. Tr. 1860. No methane was detected but in the adjacent entry the
miner displayed 0.3 percent methane. Tr. 1860. Given this mine’s enormous liberation of
methane every 24 hours, the Inspector noted that there is “always a chance for methane liberation
with any piece of equipment in any face.” Tr. 1861. The roof bolter presents an ignition source
and the Court notes that this essentially an undisputed fact, based on the testimony during these
hearings from both sides. The expected injuries, also as previously testified to numerous times,
were the same as well. The Inspector also stated that “there was some pretty good dust in the
area.” This dust covered the area of the roof bolter and “past it a little.” Tr. 1864. As noted
before too, a methane ignition could propagate a dust explosion, as the dust would ignite. A
safety concern related to the dust, the scoop would come within 3 feet of the roof bolters and this
again would present the risk of crushing-type injuries. The violation was abated in about 20 to
24 minutes, but the Inspector expressed that the repairs were “fairly extensive” with five miners
participating in the corrections. Tr. 1870.
During cross-examination, the Inspector stated he was working under the assumption that
the miners were exposed to the low air for the entire time they were bolting that area, a time
period for which he made an approximation. Tr. 1883-1884. He agreed that when the bolting
was done, the bolters would move to the next entry and that another air reading would then be
done in that next entry. In terms of the concern that a scoop might strike a bolter operator, the
Inspector agreed that the scoop would stop about 10 feet from the bolters’ physical location at
their machine. Tr. 1893. When it was suggested that as the air was only 724 CFM below the
required amount, the Inspector responded that was an amount below the minimum. Tr. 1897.
He did not agree that he would deem 1 CFM below that minimum as significant but only that
724 was.
Brody did not present any witnesses of its own for this citation.
The Court concludes that the violation was established as S&S, and that while both safety
and health concerns were S&S, the stronger of the two claims in this instance was the health
concern. The proposed assessment was $8,209.00 and the Court concludes that amount remains
appropriate upon application of the statutory criteria and it is so imposed.

36 FMSHRC Page 3028

Citation 7168913 from Docket No. WEVA 2014-620
This section 104(a) citation, No. 7168913, which was also issued by Inspector Joshua A.
McNeely, and issued on February 13, 2013 to Brody foreman Josh Anderson, states: “The
approved ventilation plan is not being complied with. The energized continuous miner on the
active #1 section is in the #2 face without the minimum required ventilation for the 001-0 MMU.
When checked, the air behind the line curtain measured 6,648 cfm. The plan requires at least
8,500 cfm for this miner. This is a 103i 5 day methane spot inspection mine. The condition
exposes miners to hazards related to methane build-up and dust hazards. Standard 75.370(a)(1)
was cited 61 times in two years at mine 4609086 (61 to the operator, 0 to a contractor).” Gov.
Ex. 44A. The Inspector marked “safety” in the section 9 of the citation.
The Inspector stated that he came upon the area and observed the continuous miner
operator cutting coal. Tr. 1903. He added seeing embers, that is to say, sparks, coming from the
miner’s cutter, when rock is cut. Tr. 1904-1905. Arcs were seen coming from the bits. Tr. 1911.
Brody then stated that it was not disputing that the Inspector found 6648 cfm behind the curtain.
Tr. 1909. The air requirement of 8,500 minimum applies when mining or loading. Tr. 1911.
The same concerns expressed by the Inspector for the similar violation he testified about,
obtained here and there is no need to repeat those. To abate the violation, loose parts of the
curtain had to be tightened up to the mine roof or to the seams of curtain that were together and
some holes in the curtain were patched. This took about 40 minutes to accomplish. Tr. 1929.
The negligence was marked as moderate because the condition was obvious and foremen were in
the area and they were required to do preshift exams. Tr. 1929.
The Court asked the Inspector to explain his reasoning regarding his testimony for a
similar violation, where he observed dust and considered the violation to be S&S, and for this
violation, where he did not observe dust, but still marked it as S&S. The Inspector stated that it
was his view that, had he not found the violation, the mining would have continued just as it was,
with no tending to the diminished air and so the air would not have gotten better, but for his
citation. Tr. 1933. As he saw it, with continued normal mining operations, the air would have
worsened, but for his intervention, issuing the citation. Tr. 1934. The Court agrees with the
Inspector’s analysis.
As with each of the citations, the entire transcript was reviewed by the Court. The
absence of specific comment to every point raised, either on direct or cross-examination, does
not suggest to the contrary, but rather reflects that many points were made repeatedly for like
violations and in other instances the Court made the judgment that a point did not rise to a level
that warranted comment. Though multiple attempts were made to suggest that the miner was not
actually mining but merely set up to mine, the Inspector was adamant that they were mining.
See, Tr. 1941, 1943, among other examples on this point. The Court finds the Inspector entirely
credible on this issue.
In its defense for this matter, Brody called Joshua Anderson, the section foreman to
whom the citation was issued. Mr. Anderson stated that the citation was issued on the No. 1
section. The Inspector either was in front of or behind him that day as they traveled into the

36 FMSHRC Page 3029

mine, but the Inspector arrived at the face before he did. Tr. 1955. Anderson maintained that
there was no mining going on, no cutting coal at that time at the number 2 entry. Tr. 1955-1956.
“Preop” activities were going on, not mining. He had not yet taken an air reading. Tr. 1958.
The preshift report dealing with the time just before this citation reflected no problems including
no problems with the ventilation, nor any methane problems. Tr. 1959-1960. Anderson also
completed the on-shift report for that time, and he stated that it reflects there was no mining
going on in the No. 2 entry. He acknowledged that the continuous miner was set up there. Tr.
1961. The miner had power on the cable but he maintained that it was not running at that time.
Tr. 1962. Anderson offered that while the miner was set to go, his explanation as to why they
didn’t mine in the number 2 entry, as follows: “I think one reason might have been the kettle
bottom we observed on the on-shift exam -- or just the general examination of the area. And
No. 1 was -- it's more of a -- it's easier to get your ventilation in No. 1 entry. There's less chance
of taking down a back-up curtain. It's a lot easier to get ventilation in No. 1.” Tr. 1963.
During cross-examination by the Secretary, Mr. Anderson continued to state that no
mining had been done in the No. 2 entry since the face had not been cut. Tr. 1974. However at
the time the Inspector was taking his air reading, Anderson deenergized the miner. When asked
why he would do that, if there was no mining, he stated that it eliminates any hazard with no
power on the machine. Tr. 1975. He did not dispute the Inspector’s reading, only the assertion
that they were mining. He also contended that because of the kettle bottom, the continuous
miner would not have been operating until after that was supported. Tr. 1978. Mr. Anderson did
not aid his credibility however when he asserted that the minimum amount of air to safely dilute
methane was excessive in that he believed that 6648 cfm was sufficient and in fact that 5,000
would be enough as well. Tr. 1980-1981. Asked if agreed with the mine’s ventilation plan, he
answered plainly, “No.” Tr. 1981.
This citation presented a two-pronged S&S claim of safety and health. The cross-exam
was ineffective. The fact that dust sampling did not show a violation does not refute the S&S
nature of this violation. MSHA’s central contentions here was that the low air, the ongoing work
of the continuous miner, and the extremely gassy nature of this mine, establish the violation’s
S&S nature. I credit the Inspector’s version of the events due in part to the Court’s assessment
of his credibility and certainty of his recollections, when contrasted with the Court’s evaluation
of the conflicting testimony.
The proposed assessment for this violation was $8,893.00 and the Court, upon
application of the statutory criteria to the record evidence, concludes that amount remains
appropriate and is so imposed.
Citation 3577965 from Docket No. WEVA 2014-620
This matter, noted in Gov. Ex. 45A, was settled. Brody accepts the citation, as issued,
including the S&S finding and the full amount of the proposed penalty. Tr. 1991.

36 FMSHRC Page 3030

Citation 3578036 from Docket No. WEVA 2014-620
This matter, noted in Gov. Ex. 46A, was settled. Brody accepts the citation, as issued,
including the S&S finding and the full amount of the proposed penalty. Tr. 1992.
CONCLUSION
The matters in this litigation having been addressed, the foregoing constitutes the Court’s
decision. So Ordered.

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

Distribution:
Michael T. Cimino, Esq., Jackson Kelly, PLLC, 500 Lee Street East, Suite 1600, Charleston,
WV 25301-3202
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1500, 401 Liberty
Avenue, Pittsburgh, PA 15222
K. Brad Oakley, Esq., Jackson Kelly PLLC, 175 East Main Street, Suite 500, Lexington, KY
40507
Adam J. Schwendeman, Esq., 500 Lee Street East, Suite 1600, Charleston, WV 25301-3202
Benjamin M. McFarland, Esq., Jackson Kelly, PLLC, 1144 Market Street, Wheeling, WV
26003
Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22 Floor West, Arlington, VA 22209-3939
Lauren Marino, Esq. Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
Room 2226, Arlington, VA 22209-2296
Jason Grover, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., Room
2226, Arlington, VA 22209-2296
Ronald Gurka, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
Room 2226, Arlington, VA 22209-2296
Dana Ferguson, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
Room 2226, Arlington, VA 22209-2296

36 FMSHRC Page 3031

APPENDIX I
STIPULATIONS
The parties entered into the following stipulations at the hearing:
1. Brody Mining, LLC (hereinafter “Brody”) is an "operator" as defined in § 3(d) of the
Federal Mine Safety and Health Act of 1977, as amended (hereinafter "the Mine Act"),
30 U.S.C. § 803(d), at the coal mine at which the Citations/Orders at issue in these
proceedings were issued.
2. The Brody Mine No. 1, an underground bituminous coal mine at which the
Citations/Orders were issued in this proceeding, is 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 designated Administrative Law Judges pursuant to Sections
105 and 113 of the Mine Act.
4. The individuals whose signatures appear in Block 22 of the Citations/Orders at issue in
these proceedings were acting in their official capacity and as authorized representatives
of the Secretary of Labor when the Citations/Orders were issued.
5. True copies of the Citations/Orders at issue in this proceeding were served on Brody as
required by the Mine Act.
6. A written notice was issued under Notice No. 7219154 on October 24, 2013, pursuant to
section 104(e)(1) of the Act, 30 U.S.C. § 814(e), notifying the operator that MSHA finds
that a pattern of violations exists at the Brody Mine No. 1.
7. Under the heading and caption “Condition or Practice” the Notice alleges in relevant part
as follows:
Pursuant to Section 104(e)(1) of the Federal Mine Safety and Health Act of
1977 (Mine Act), you are hereby notified that a pattern of violations exists at
the Brody Mine No. 1 (ID 46-09086). A review of the S&S violations cited at
the mine demonstrates a pattern of violations. As illustrative of this pattern of
violations, the following groups of violations are representative of violations
which are of such nature as could have significantly and substantially
contributed to the cause and effect of coal or other mine health or safety
hazards:
The following eighteen citations/orders were issued citing conditions and/or
practices that contribute to ventilation and/or methane hazards: 8125045
(10/9/12), 8137713 (10/9/2012), 8146352 (10/9/2012), 7167400 (11/26/12),
7168841 (11/26/2012), 7168866 (1/14/2013), 8139621 (1/15/2013), 7168913
(2/13/2013), 3577965 (2/2/7/2013), 3578036 (5/15/2013), 8155954
(5/21/2013), 8155960 (5/29/2013), 8154782 (6/5/2013), 9000282 (6/10/2013),
7165682 (7/24/2013), 9000311 (7/30/2013), 9000312 (7/30/2013), 9002292
(8/27/2013).

36 FMSHRC Page 3032

The following twenty citations/orders were issued citing conditions and/or
practices that contribute to emergency preparedness and escapeway hazards:
8153617 (10/9/2012), 7167386 (10/22/2012), 7167387 (10/23/2012), 7167388
(10/29/2012), 7167389 (10/29/2012), 7167393 (11/1/2012), 7167405
(12/4/2012), 7167412 (12/12/2012), 7168854 (12/17/2012), 7167474
(3/18/2013), 8155914 (4/8/2013), 9000286 (6/19/2013), 7165680 (7/17/2013),
9000305 (7/24/2013), 9000309 (7/29/2013), 9000313 (7/30/2013), 7165694
(8/14/2013), 7166781 (10/3/2013), 7166783 (10/8/2013), 7166784
(10/8/2013).
The following nine citations/orders were issued citing conditions and/or
practices that contribute to roof and rib hazards: 8151320 (10/18/2012),
7168899 (2/5/2013), 7167471 (3/6/2013), 8155908 (4/4/2013), 8155925
(4/17/2013), 8155936 (5/6/2013), 9000277 (6/5/2013), 7165683 (7/24/2013),
9000307 (7/29/2013).
The following seven citations/orders were issued citing conditions and/or
practices that contribute to inadequate examinations: 7168801 (10/18/2012),
7167473 (3/18/2013), 8155909 (4/4/2013), 8155926 (4/17/2013), 8155937
(5/6/2013), 9000278 (6/5/2013), 9000304 (7/24/2013).
These groups of violations, taken alone or together, constitute a pattern of
violations of mandatory health and safety standards in the coal or other mine
which are of such nature as could have significantly and substantially
contributed to the cause and effect of coal or other mine health or safety
hazards. [The Court points out that the reader should not be confused by
this stipulation as it only recounts what the Notice alleges.]
If upon any inspection within 90 days after issuance of this Notice, an
Authorized Representative of the Secretary finds any violation of a mandatory
health or safety standard that could significantly and substantially contribute
to the cause and effect of a coal or other mine safety or health hazard, the
Authorized Representative shall issue an order requiring the operator to cause
all persons in the area affected by such violation, except those persons
referred to in Section 104(c) of the Mine Act, to be withdrawn from, and to be
prohibited from entering such area until an Authorized Representative of the
Secretary determines that such violation has been abated. This Notice of
Pattern of Violation shall remain posted at the Brody Mine No. 1 until it is
terminated by an Authorized Representative.
8. Citation No. 7166783, listed in POV Notice 7219154, was vacated by MSHA subsequent
to the issuance of the POV Notice.
9. Citation No. 7166784, listed in POV Notice 7219154, was vacated by MSHA subsequent
to the issuance of the POV Notice.
10. The regulations on which MSHA relies to issue the notice of pattern of violations became
final on March 25, 2013. See Fed. Reg. § 5056 (January 23, 2013).

36 FMSHRC Page 3033

11. The POV rule relies upon issued citations/orders regardless of whether they are final
orders of the Commission as a basis for determination of the existence of a pattern of
violations.
12. MSHA based its POV determination on a 12-month period ending August 31, 2013.
13. The parties disagree as to the effect of MSHA’s screening criteria set forth on MSHA’s
website. Brody believes the effect is that, absent mitigating circumstances, a mine that
meets the screening criteria is placed on a pattern of violations. The Secretary, who
wrote the rule, submits that such criteria are used to screen mines and identify mines that
will be more closely reviewed for the determination of whether a pattern of violations
exists.
14. In keeping with the rule, the screening criteria were not subjected to notice-and-comment
procedures. The parties disagree as to whether such notice-and- comment procedures
were required by the Administrative Procedure Act.
15. 253 S&S citations/orders were issued to Brody Mine No. 1 over the course of 12 months
from September 1, 2012 through August 31, 2013. 108 S&S citations/orders were issued
between March 25, 2013 and August 31, 2013.
16. The rate of S&S issuances at the Brody Mine No. 1 was 8.41 per 100 inspection hours
during the screening period.
17. None of the S&S citations/orders that were issued at the Brody Mine No. 1 during the
screening period are final orders of the Commission.
18. Each of the citations/orders listed in POV Notice 7219154 have been contested by Brody.
19. 24 citations/orders referenced in the pattern notice were issued before March 25, 2013.
28 citations/orders referenced in the pattern notice were issued after March 25, 2013.
20. 16 of the citations were referenced in the pattern notice were issued before January 1,
2013.
21. Brody contends that if the citations referenced in the pattern notice at issue only involve
those issued after March 25, 2013, the number of S&S citations per 100 inspection hour
would be below the 8.0 S&S per 100-hour criteria. The Secretary contends that the
application of the screening criteria is not subject to review and Brody contends that it is.
The Secretary further contends that the screening criteria are designed to apply to a
twelve month period and applying those criteria to a shorter time frame would not be as
representative. It is further the Secretary’s position that all S&S citations/orders issued
during the period under consideration, not just those listed in the pattern notice, must be
considered when applying the screening criteria. It is Brody’s contention that based on
the Secretary’s arguments in this matter that he is arguing that the citations /orders in the
pattern notice establish a pattern of violations.
22. 108 S&S citations or orders were issued to Brody Mine No. 1 between March 25, 2013
and August 31, 2013 with a total of approximately 1468.75 MSHA inspection hours as
calculated by MSHA (1506 by Brody’s records). The S&S rate using MSHA’s number
for that period would be 7.35 per 100 inspection hours and 7.17 by Brody’s calculation.
23. 12 citations/orders designated as S&S with a negligence finding of high or reckless
disregard were issued between March 25, 2013 and August 31, 2013 representing 11% of
the 108 S&S citations/orders issued during that period.
24. According to MSHA’s sampling, the Brody Mine liberates in excess of 1,000,000 cubic
feet of methane per 24-hour period during the time frame from September 1, 2012
through August 31, 2013 and was on a 5-day spot inspection cycle pursuant to Section

36 FMSHRC Page 3034

103(i) of the Mine Act.
25. Joint Exhibit J-1is an accurate mine map of the Brody No. 1 Mine as of July 31, 2013.
26. Government Exhibit 1-A is an authentic copy of Citation No. 8153617, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
27. Brody admits the fact of the violation cited in citation 8153617 but contests that the
violation was properly designated as significant and substantial.
28. Government Exhibit 2-A is an authentic copy of Citation No. 7167386, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
29. Brody admits the fact of the violation cited in citation 7167386 but contests that the
violation was properly designated as significant and substantial.
30. Government Exhibit 3-A is an authentic copy of Citation No. 7167387, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
31. Government Exhibit 4-A is an authentic copy of Citation No. 7167388, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
32. Brody admits the fact of the violation cited in citation 7167388 but contests that the
violation was properly designated as significant and substantial.
33. Government Exhibit 5-A is an authentic copy of Citation No. 7167389, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
34. Brody admits the fact of the violation cited in citation 7167389 but contests that the
violation was properly designated as significant and substantial.
35. Government Exhibit 6-A is an authentic copy of Citation No. 7167393, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
36. Brody admits the fact of the violation cited in citation 7167393 but contests that the
violation was properly designated as significant and substantial.
37. Government Exhibit 7-A is an authentic copy of Citation No. 7167405, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
38. Brody admits the fact of the violation cited in citation 7167405 but contests that the
violation was properly designated as significant and substantial.
39. Government Exhibit 8-A is an authentic copy of Citation No. 7167412, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.

36 FMSHRC Page 3035

40. The Government stipulates that Citation No. 7167412 should be modified to nonsignificant and substantial and hereby withdraws that citation from its Notice of Pattern
of Violations, Notice 7219154, issued on October 24, 2013.
41. Government Exhibit 9-A is an authentic copy of Citation No. 7168854, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
42. Brody admits the fact of the violation cited in citation 7168854 but contests that the
violation was properly designated as significant and substantial.
43. Government Exhibit 10-A is an authentic copy of Citation No. 7167474, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
44. The Government stipulates that Citation No. 7167474 should be modified to nonsignificant and substantial and hereby withdraws that citation from its Notice of Pattern
of Violations, Notice 7219154, issued on October 24, 2013.
45. Government Exhibit 11-A is an authentic copy of Citation No. 8155914, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
46. Government Exhibit 12-A is an authentic copy of Citation No. 9000286, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
47. Brody stipulates that it will accept the significant and substantial designation for Citation
No. 9000286.
48. Government Exhibit 13-A is an authentic copy of Citation No. 7165680, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
49. Brody stipulates that it will accept the significant and substantial designation for Citation
No. 7165680.
50. Government Exhibit 14-A is an authentic copy of Order No. 9000305, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
51. Brody stipulates that it will accept the significant and substantial designation for Citation
No. 9000305.
52. Government Exhibit 15-A is an authentic copy of Citation No. 9000309, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
53. Brody admits the fact of the violation cited in citation 9000309 but contests that the
violation was properly designated as significant and substantial.
54. The Government stipulates that Citation No. 9000309 should be modified to nonsignificant and substantial and hereby withdraws that citation from its Notice of Pattern

36 FMSHRC Page 3036

of Violations, Notice 7219154 issued on October 24, 2013.
55. Government Exhibit 16-A is an authentic copy of Citation No. 9000313, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
56. Brody admits the fact of violation cited in Citation No. 9000313 but contests that the
violation was properly designated as significant and substantial.
57. Government Exhibit 17-A is an authentic copy of Citation No. 7165694, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
58. Government Exhibit 18-A is an authentic copy of Citation No. 7166781, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
59. Brody admits the fact of the violation cited in citation 7166781 but contests that the
violation was properly designated as significant and substantial.
60. Government Exhibit 19-A is an authentic copy of Citation No. 8151320, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
61. Brody stipulates that it will accept the significant and substantial designation for Citation
No. 8151320.
62. Government Exhibit 20-A is an authentic copy of Citation No. 7168801, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
63. Brody stipulates that it will accept the significant and substantial designation for Citation
No. 7168801.
64. Government Exhibit 21-A is an authentic copy of Citation No. 7168899, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
65. Brody stipulates that it will accept the significant and substantial designation for Citation
No. 7168899.
66. Government Exhibit 22-A is an authentic copy of Citation No. 7167471, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
67. Government Exhibit 23-A is an authentic copy of Citation No. 7167473, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
68. The Government stipulates that Citation No. 7167473 should be modified to nonsignificant and substantial and hereby withdraws that citation from its Notice of Pattern
of Violations, Notice 7219154, issued on October 24, 2013.

36 FMSHRC Page 3037

69. Government Exhibit 24-A is an authentic copy of Citation No. 7165683, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
70. Government Exhibit 25-A is an authentic copy of Order No. 8155908, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
71. Government Exhibit 26-A is an authentic copy of Citation No. 8155909, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
72. Government Exhibit 27-A is an authentic copy of Citation No. 8155925, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
73. Brody admits the fact of the violation cited in citation 8155925 but contests that the
violation was properly designated as significant and substantial.
74. The Government stipulates that Citation No. 8155925 should be modified to nonsignificant and substantial and hereby withdraws that citation from its Notice of Pattern
of Violations, Notice 7219154 issued on October 24, 2013.
75. Government Exhibit 28-A is an authentic copy of Citation No. 8155926, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
76. The Government stipulates that Citation No. 8155926 should be modified to nonsignificant and substantial and hereby withdraws that citation from its Notice of Pattern
of Violations, Notice 7219154, issued on October 24, 2013.
77. Government Exhibit 29-A is an authentic copy of Citation No. 8155936, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
78. Brody admits the fact of the violation cited in citation 8155936 but contests that the
violation was properly designated as significant and substantial.
79. The Government stipulates that Citation No. 8155936 should be modified to nonsignificant and substantial and hereby withdraws that citation from its Notice of Pattern
of Violations, Notice 7219154, issued on October 24, 2013.
80. Government Exhibit 30-A is an authentic copy of Citation No. 8155937, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
81. The Government stipulates that Citation No. 8155937 should be modified to nonsignificant and substantial and hereby withdraws that citation from its Notice of Pattern
of Violations, Notice 7219154, issued on October 24, 2013.
82. Government Exhibit 31-A is an authentic copy of Citation No. 9000277, with all
modifications and abatements, and may be admitted into evidence for the purpose of

36 FMSHRC Page 3038

establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
83. Brody stipulates that it will accept the significant and substantial designation for Citation
No. 9000277.
84. Government Exhibit 32-A is an authentic copy of Citation No. 9000278, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
85. Government Exhibit 33-A is an authentic copy of Citation No. 9000278, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
86. Brody stipulates that it will accept the significant and substantial designation for Citation
No. 9000278.
87. Government Exhibit 34-A is an authentic copy of Order No. 9000307, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
88. Government Exhibit 35-A is an authentic copy of Citation No. 8125045, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
89. Brody admits the fact of the violation cited in citation 8125045 but contests that the
violation was properly designated as significant and substantial.
90. The Government stipulates that Citation No. 8125045 should be modified to nonsignificant and substantial and hereby withdraws that citation from its Notice of Pattern
of Violations, Notice 7219154, issued on October 24, 2013.
91. Government Exhibit 36-A is an authentic copy of Citation No. 8139621, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
92. The Government stipulates that Citation No. 8139621 should be modified to nonsignificant and substantial and hereby withdraws that citation from its Notice of Pattern
of Violations, Notice 7219154, issued on October 24, 2013.
93. Government Exhibit 37-A is an authentic copy of Citation No. 8154782, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
94. Government Exhibit 38-A is an authentic copy of Citation No. 8146352, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
95. Brody admits the fact of the violation cited in citation 8146352 but contests that the
violation was properly designated as significant and substantial.
96. Government Exhibit 39-A is an authentic copy of Citation No. 7167400, with all
modifications and abatements, and may be admitted into evidence for the purpose of

36 FMSHRC Page 3039

establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
97. Brody admits the fact of the violation cited in citation 7167400 but contests that the
violation was properly designated as significant and substantial.
98. Government Exhibit 40-A is an authentic copy of Citation No. 8137713, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
99. Government Exhibit 41-A is an authentic copy of Citation No. 7165682, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
100. Brody admits the fact of the violation cited in citation 7165682 but contests that
the violation was properly designated as significant and substantial.
101. Government Exhibit 42-A is an authentic copy of Citation No. 7168841, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
102. Brody admits the fact of the violation cited in citation 7168841 but contests that the
violation was properly designated as significant and substantial.
103. Government Exhibit 43-A is an authentic copy of Citation No. 7168866, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
104. Brody admits the fact of the violation cited in citation 7168866 but contests that the
violation was properly designated as significant and substantial.
105. Government Exhibit 44-A is an authentic copy of Citation No.7168913, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
106. Government Exhibit 45-A is an authentic copy of Citation No. 3577965, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
107. Brody stipulates that it will accept the significant and substantial designation for
Citation No. 3577965.
108. Government Exhibit 46-A is an authentic copy of Citation No. 3578036, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
109. Brody stipulates that it will accept the significant and substantial designation for
Citation No. 3578036.
110. Government Exhibit 47-A is an authentic copy of Order No. 8155954, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.

36 FMSHRC Page 3040

111. Brody admits the fact of the violation cited in citation 8155954 but contests that
the violation was properly designated as significant and substantial.
112. Government Exhibit 48-A is an authentic copy of Order No. 8155960, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
113. Government Exhibit 49-A is an authentic copy of Citation No. 9000282, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
114. Brody admits the fact of the violation cited in citation 9000282 but contests that the
violation was properly designated as significant and substantial.
115. The Government stipulates that Citation No. 9000282 should be modified to nonsignificant and substantial and hereby withdraws that citation from its Notice of Pattern
of Violations, Notice 7219154, issued on October 24, 2013.
116. Government Exhibit 50-A is an authentic copy of Citation No. 9000311, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
117. Brody stipulates that it will accept the significant and substantial designation for
Citation No. 9000311.
118. Government Exhibit 51-A is an authentic copy of Citation No. 9000312, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
119. Brody stipulates that it will accept the significant and substantial designation
for Citation No. 9000312.
120. Government Exhibit 52-A is an authentic copy of Citation No. 9002292, with all
modifications and abatements, and may be admitted into evidence for the purpose of
establishing its issuance and not for the purpose of establishing the accuracy of any
statements asserted therein.
121. The Government stipulates that Citation No. 9002292 should be modified to nonsignificant and substantial and hereby withdraws that citation from its Notice of Pattern
of Violations, Notice 7219154, issued on October 24, 2013.
122. Government Exhibit 53 is an authentic copy of the POV Notice issued to the operator
on October 24, 2013, which may be admitted into evidence for the purpose of
establishing its issuance and not for the accuracy of any statements asserted therein.
123. Each of the alleged violations involved in this matter were timely abated in good
faith.
124. Brody accepts the negligence, injury/illness, and number of persons affected designations
on the twelve (12) citations listed herein that the Government has stipulated were
improperly designated as significant and substantial. Likewise, Brody accepts the
negligence, injury/illness, and number of persons affected designations on the twelve
citations listed herein that Brody has stipulated were properly designated as significant
and substantial.

36 FMSHRC Page 3041

125. For those citations listed herein that the Government has stipulated were improperly
designated as significant and substantial, Brody will pay a penalty commensurate with the
penalty amount prescribed under Part 100 given the deletion of the significant and
substantial designation.
126. For those citations listed herein that Brody has stipulated were properly issued as
significant and substantial, with the exception of Citation Nos. 9000305, 9000277 and
9000278, Brody will pay the assessed penalty.
127. Brody will pay a $43,086 penalty for Citation No. 9000305.
128. Brody will pay a $52,913 penalty for Citation No. 9000277.
129. Brody will pay a $14,993 penalty for Citation No. 9000278.

36 FMSHRC Page 3042

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH STREET, SUITE 443
DENVER, CO 80202-2536
303-844-3577 FAX 303-844-5268

November 4, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
HECLA LIMITED,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2012-760-M-A
A.C. No. 10-00088-283636-02
Docket No. WEST 2012-986-M
A.C. No. 10-00088-289913
Lucky Friday Mine

ORDER DENYING MICHAEL MAREK’S REQUEST TO INTERVENE
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 Hecla Limited, 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”). Michael Marek, through counsel, filed
a letter seeking to intervene in the cases as an “affected miner” as that term is used in
Commission Procedural Rule 4(b)(1). 29 C.F.R. § 2700.4(b)(1). For the reasons that follow, his
request is denied.
On April 15, 2011, there was a fall of ground at the Lucky Friday Mine. Marek was
injured by the accident and his brother, Larry Marek, was killed. After completing its
investigation, MSHA issued a citation under section 104(d)(1) of the Mine Act and three orders
under that same section. The citation and orders all reference the fall of ground and were
presumably issued as a result of the fall of ground. These matters were duly contested by Hecla
in the present cases. A hearing is scheduled to commence on November 18, 2014.
Marek is represented by Edward B. Havas in a civil action brought against Hecla as a
result of the accident. Marek would like Havas to represent him in the present cases. In his letter
seeking intervention, dated October 16, 2014, Marek contends that he is entitled to intervene as a
matter of right under Commission Rule 4(b)(1) because he is an “affected miner.” Marek states
that he was present when the accident occurred and was injured by the fall of ground. Marek
further argues that these cases are “quite important to [him]; there can be little doubt that [he] is
an affected miner entitled to exercise his rights.” (Letter Requesting Intervention at 1).
Hecla filed a response in opposition to the notice of intervention. Hecla argues that
Marek is not an affected miner. Section 3(g) of the Mine Act defines a miner as “any individual
working in a coal or other mine.” 30 U.S.C. § 802(g). Although Marek worked at the Lucky
Friday Mine at the time of the accident, he is no longer employed at the mine. As a consequence,
he is not entitled to intervene as a matter of right because a person “seeking to intervene must be
working as a miner at the time a Notice of Intervention is filed.” (Hecla Resp.at 3). It points to
Commission case law concerning the walkaround rights of miners. Hecla contends that an

36 FMSHRC Page 3043

affected miner must be working in a mine, exposed to the hazards of mining, and employed by a
mine operator. Marek is not working at the Lucky Friday Mine so he is not exposed to the
potential hazards at the mine.1 Hecla also argues that Marek’s interests will be adequately
protected by counsel for the Secretary, who has the same interests as Marek, citing Dana Mining,
29 FMSHRC 1102 (Dec. 2007) (ALJ).
Marek filed a response to Hecla’s opposition. Although Marek is no longer employed at
the Lucky Friday Mine, he is employed as a full-time miner at another mine. Marek also argues
that “as the lone survivor of the mine collapse at issue in these proceedings, and suffering
permanent effects from that collapse, it would be ludicrous to the point of incredulity to claim
that [he] is not now and was not then affected by the events, and will not be affected by these
proceedings.” (Response at 3). Marek also notes that he will be a witness at the hearing. In the
alternative, Marek seeks to intervene under Rule 4(b)(2) “Intervention by Other Persons.”
The parties presented further argument during a conference call. The Secretary did not
file any written response to the request for intervention, but the Secretary’s counsel stated during
the call that she supports Marek’s request to intervene.
Commission case law is silent on this issue. Although the Commission considered who is
a miner in the context of walkaround representation and training requirements, it has not
discussed Rule 4(b)(1). Marek stated that he does not seek to intervene as a “representative of
miners,” but rather as an affected miner and he would like Havas to act as his counsel. The
preamble to the Commission’s Rule 4 focuses on Rule 4(b)(2) but it also sheds some light on the
intent behind Rule 4(b).2
1

In Cyprus Empire Corp., 15 FMSHRC 10, 14 (Jan. 1993), the Commission held that
striking miners were not entitled to a walkaround representative during MSHA inspections
because they were not working in a mine during the strike.
2

The preamble states:

The proposed rule added new procedures dealing with intervention and
amicus curiae participation at the trial level. The Commission received a number
of comments on these proposals and has modified the proposals. Paragraph (b)(2)
provides that motions to intervene made by persons other than affected miners or
their representatives shall be filed before the start of a hearing on the merits,
unless the judge, for good cause shown, permits later filing.
Some commenters suggested that the proposed criteria for intervention were too
restrictive, and urged the Commission to permit intervention on the basis of an
interest in the issues involved in a proceeding. The Commission has determined
that interest in issues is too broad a criterion for intervention. Such a standard
could serve to deprive the parties of control over the litigation and could
(continued…)

36 FMSHRC Page 3044

As discussed below, I find that Marek is not an affected miner as that term is used in
Commission Rule 4(b)(1). An “affected miner” may intervene in a Commission proceeding, but
the meaning of “affected miner” is not clear. Miners who are currently employed at the mine
where the citations or orders were issued and who will be exposed to potential hazards of mining
at that mine could potentially be affected by the proceeding.3 In the preamble to Rule 4, the
Commission made clear that a person having an “interest in issues is too broad a criterion for
intervention.” 58 Fed. Reg. at 12160. The Commission further stated that such a broad “standard
could serve to deprive the parties of control over the litigation and could encumber the
Commission's simple administrative trial process.” Id. Although this statement was directed at
Rule 4(b)(2), it demonstrates the Commission’s intention that intervention should not disrupt the
hearing process.
Marek argues that he is an affected miner because (1) he survived the fall of ground and
is “suffering permanent effects from the accident” and (2) he is employed at a mine and is
therefore a miner. Marek is employed as a miner but he is no longer employed by Hecla and he
does not work at the Lucky Friday Mine in any capacity. He is no longer exposed to any hazards
of falling rock or roof falls at the mine and these proceedings cannot affect his future
employment or safety. As a consequence, my adjudication of the issues will not affect Marek.
Under Marek’s logic, any miner who suffers a serious injury at a mine and continues to work in
any mine could intervene as a matter of right in a Commission proceeding involving MSHA
enforcement actions arising from the injurious accident. I do not believe that was the intent of
Rule 4(b)(1). The roof fall underlying these proceedings affected Marek, but he is not an
“affected miner” under Rule 4(b)(1).
I also find that Marek is not entitled to intervene under Rule 4(b)(2). Although Marek has
an interest in the events that are the subject of the proceeding, he has not demonstrated “why
such interest is not otherwise adequately represented by” counsel for the Secretary. 29 C.F.R. §
4(b)(2)(B). The Secretary is represented by two attorneys in the Office of the Solicitor with
experience litigating cases under the Mine Act. In addition, I find that Marek’s presence as an
intervenor will “unduly delay or prejudice the adjudication of the issues.” 29 C.F.R. § 4(b)(2)(C).
His counsel indicated that he was planning to question witnesses at the hearing, which would
likely delay the completion of the hearing. Marek’s only demonstrated interest in this proceeding
2

(…continued)
encumber the Commission's simple administrative trial process. See MidContinent Resources, Inc., 11 FMSHRC 2399 (December 1989)(discussing
criteria for non-party standing to appeal a Commission judge's decision to the
Commission). In denying a motion to intervene, however, a Commission judge
may alternatively permit the movant to participate in the proceeding as amicus
curiae (§ 2700.4(c)).
58 Fed. Reg. 12158, 12160 (Mar. 3, 1993).
3

I do not hold that every miner currently employed at the Lucky Friday Mine is an
affected miner under Rule 4(b)(1). I only state that a miner whose future safety could be affected
by the proceeding is more likely to be an affected miner than Marek.

36 FMSHRC Page 3045

not otherwise represented by the Secretary relates to the civil suit he has brought against Hecla as
a result of his injuries. This interest does not concern the Mine Act and can only unnecessarily
interrupt the completion of the hearing. If Marek is an intervenor, moreover, he will be entitled
to remain in the courtroom during the entire hearing. I sequester witnesses until after they testify
to avoid the risk that their testimony will be tainted.
The Secretary supports Marek’s request to intervene. The Secretary’s position on this
issue is due some consideration. During the conference call, counsel for the Secretary stated that
Marek and his counsel helped her develop the Secretary’s case and that Marek’s presence as an
intervenor at the hearing will assist her. It is important to understand, however, that Marek will
be a witness at the hearing and Marek’s counsel is free to attend and confer with counsel for the
Secretary whether Marek is an intervenor or not. If invited, Marek’s counsel as well as Marek
after he testifies may sit with counsel for the Secretary at the hearing and suggest questions to
ask witnesses. If he desires, I will also permit Marek to file a post-hearing amicus brief or
memorandum of law following the hearing.
For the foregoing reasons, Michael Marek’s request to intervene in these cases is
DENIED.

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

Distribution:
Patricia Drummond, Esq., Office of the Solicitor, U.S. Department of Labor, 300 Fifth Avenue,
Suite 1120, Seattle, WA 98104-2397
Cheryl L. Adams, Esq., Office of the Solicitor, U.S. Department of Labor, 90 7th Street, Suite 3700, San Francisco, CA 94103-6704
Laura E. Beverage, Esq., and Karen L. Johnston, Esq., Jackson Kelly PLLC, 1099 18th Street,
Suite 2150, Denver, CO 80202-1958
Edward B. Havas, Esq., Dewsnup, King & Olsen, 36 South State Street, Suite 2400, Salt Lake
City, UT 84111-0024
RWM

36 FMSHRC Page 3046

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: 412-928-8689

November 5, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ON
BEHALF OF GARY KITTELSON,

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. LAKE 2014-597-DM
MSHA Case No. RM-MD-14-13

Petitioner
v.
NORTHERN AGGREGATE INC.,
Respondent

Mine: Portable Crusher
Mine ID: 21-02623

ORDER GRANTING SECRETARY’S MOTION TO ENFORCE
ORDER OF TEMPORARY REINSTATEMENT
This case is before me pursuant to an Application for Temporary Reinstatement brought
under Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §815(c),
et. seq. (the “Mine Act.”). On August 12, 2014, the undersigned issued an Order temporarily
reinstating Gary Kittelson to his position in the mine. On October 13, 2014, the Respondent
terminated Kittelson’s employment in violation of the Order Approving Temporary
Reinstatement. Therefore, on October 23, 2014, the Secretary of Labor filed a Motion to Enforce
the Order of Temporary Reinstatement, as well as a second Application for Temporary
Reinstatement, LAKE 2015-80-DM. A conference call between the parties and the undersigned
was held on November 3, 2014, wherein the parties agreed to economically reinstate Kittelson
according to the terms to be determined by the parties.
It is ORDERED that Kittelson shall be economically reinstated from his October 13,
2014 termination.

/s/ John Kent Lewis
John Kent Lewis
Administrative Law Judge

36 FMSHRC Page 3047

Distribution:
Gary Kittelson, 4192 Town Road 98, Loman, MN 56654
Francesca Cheroutes, Trial Attorney, United States Department of Labor, Office of the Solicitor,
Cesar E. Chavez Memorial Building, 1244 Speer Boulevard, Denver, CO 80204
Ben Wangberg, Fuller, Wallner, Cayko, Pederson & Huseby, Ltd., P.O. Box 880, Bemidji, MN
56619-0880
/mzm

36 FMSHRC Page 3048

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE NW, SUITE 520N
WASHINGTON, D.C. 20004

November 7, 2014
SCOTT MCGLOTHLIN,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. VA 2014-233-D
NORT-CD-2013-04

v.
DOMINION COAL CORPORATION,
Respondent.

Mine: Dominion No. 7
Mine ID: 44-06499

ORDER GRANTING MOTION TO QUASH SUBPOENA
This matter is before me based on a Complaint of Discrimination brought by Scott
McGlothlin against Dominion Coal Corporation (“Dominion”), pursuant to section 105(c)(3) of
the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c)(3) (2006)
(“Mine Act” or “the Act”). McGlothlin seeks redress under section 105(c)(3) for an adverse
action allegedly motivated by his application for the protections afforded to miners afflicted with
pneumoconiosis under 30 C.F.R. Part 90.1
I.

Background

During an October 28, 2014, telephone conference, the parties represented that, through
discovery, the Complainant’s wife Alicia McGlothlin produced e-mails concerning her
husband’s Part 90 status and his discrimination claim, with the exception of those e-mails that
were claimed to have been previously deleted and those privileged or properly redacted. Mrs.
McGlothlin is an employee of the Russell County, Virginia, Treasurers Office. Among the emails sought were those sent from her office computer.
On October 15, 2014, in an effort to determine whether spoliation has occurred,
Dominion served a subpoena on the Russell County, Virginia, Treasurers Office seeking to
obtain e-mails sent by Mrs. McGlothlin from its e-mail account server, including all archived and

1

Under 30 C.F.R. Part 90, a miner determined by the Secretary of Health and Human
Services to have evidence of the development of pneumoconiosis is given the opportunity to
work without loss of pay in an area of the mine where the average concentration of respirable
dust in the mine atmosphere during each shift to which that miner is exposed is continuously
maintained at or below 1.0 milligrams per cubic meter of air (“mg/m3”).

36 FMSHRC Page 3049

hard drive backup data.2 McGlothlin has filed a motion to amend this subpoena to, in essence,
limit the information produced to only those e-mails already provided by Mrs. McGlothlin (again
excluding privileged e-mails and those appropriately requiring redactions). I construe
McGlothlin’s motion to amend the subpoena as a motion to quash the subject subpoena.
II.

Discussion

The general principles governing the analysis of discrimination cases under the Mine Act
are well settled. In order to establish a case of discrimination under section 105(c) of the Act, the
complainant has the burden of proving that (1) he engaged in protected activity and (2) the
adverse action complained of was motivated in any part by that protected activity. Secretary on
behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (Oct. 1980), rev’d on
other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981);
Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 817, 818 (Apr. 1981).
The operator may rebut the prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by protected activity. If an operator
cannot rebut the prima facie case in this manner, it nevertheless may defend affirmatively by
proving that it also was motivated by factors unrelated to the miner’s protected activity and that
it would have taken the complained-of action in any event for the unrelated factors alone.
Pasula, supra; Robinette, supra. See also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639,
642 (4th Cir. 1987); Donovan v. Stafford Construction Co., 732 F.2d 954, 958-59 (D.C. Cir.
1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically approving the
Commission’s Pasula-Robinette test). Cf. NLRB v. Transportation Management Corp., 462 U.S.
393, 397-413 (1983) (approving nearly identical test under National Labor Relations Act).
Thus, the issues in this discrimination proceeding are whether McGlothlin engaged in
protected activity, and, if so, whether the adverse action complained of by McGlothlin was, in
any part, motivated by McGlothlin’s protected activity. Dominion may affirmatively defend by
demonstrating that the adverse action complained of was taken solely for factors unrelated to any
protected activity.
Commission Rule 56(b) provides that a party may obtain through discovery “any
relevant, non-privileged matter that is admissible evidence or appears likely to lead to the
discovery of admissible evidence.” 29 C.F.R. § 2700.56(b). Dominion has already obtained email documentation from Mrs. McGlothlin through discovery. As the issues in this proceeding
are whether McGlothlin engaged in protected activity and Dominion’s motivations, Dominion
has not shown that the forensic recovery of the e-mails reportedly deleted by Mrs. McGlothlin, if
retrievable, will lead to relevant evidence. In reaching this conclusion, I note that the commonly
expressed argument that a document’s relevance cannot be determined until it is seen is
unavailing as it would result in limitless discovery.

2

My office routinely provides blank, signed subpoenas for the parties’ appropriate use
during discovery and in preparation for witness testimony. The provision and ultimate service of
such subpoenas is not demonstrative of any acquiescence that they were properly served.

36 FMSHRC Page 3050

Notwithstanding the issue of relevance, Commission Rule 56(c) limits discovery, when
appropriate, to relieve a person or entity from “oppression or undue burden or expense.” 29
C.F.R. § 2700.56(c). In applying this limitation, it is noteworthy that Commission Rule 1(b)
provides that on procedural matters not explicitly addressed by the Act’s statutory provisions or
the Commission’s rules, the Commission’s Judges may look to “any pertinent provisions of the
Federal Rules of Civil Procedure.” 29 C.F.R. § 2700.1(b). Federal Rule of Civil Procedure
26(b)(2)(B) provides specific limitations on the discovery of electronically-stored information.
This provision limits the discovery of such information when it is “not reasonably accessible
because of undue burden or cost.” Rule 26(b)(2)(C)(i) of the Federal Rules of Civil Procedure
also limits discovery when the information “sought is unreasonably cumulative or duplicative, or
can be obtained from some other source that is more convenient, less burdensome, or less
expensive.”
In the final analysis, it has not been shown that the information sought to be retrieved
from Russell County, Virginia, Treasurers Office’s database can be reasonably expected to lead
to relevant evidence. Moreover, the retrieval of such information is precluded by Federal Rules
of Civil Procedure 26(b)(2)(B) and 26(b)(2)(C)(i) because it would be unduly burdensome and
duplicative.
ORDER
In view of the above, IT IS ORDERED that McGlothlin’s motion to quash the subpoena
as served on the Russell County, Virginia, Treasurers Office IS GRANTED. IT IS FURTHER
ORDERED that Counsel for McGlothlin provide a copy of this Order to the Russell County,
Virginia, Treasurers Office within ten days of its issuance.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge
Distribution:
Evan B. Smith, Esq., Wes Addington, Esq., Appalachian Citizens Law Center, Inc., 317 Main
Street, Whiteburg, KY 41858
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40552
David Hardy, Esq., Scott Wickline, Esq., Hardy Pence PLLC, 500 Lee Street East, Suite 701,
P.O. Box 2548, Charleston, WV 25329
/acp

36 FMSHRC Page 3051

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE NW, SUITE 520N
WASHINGTON, D.C. 20004

November 14, 2014
SCOTT MCGLOTHLIN,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. VA 2014-233-D
NORT-CD-2013-04

v.
DOMINION COAL CORPORATION,
Respondent.

Mine: Dominion No. 7
Mine ID: 44-06499

ORDER DENYING RECONSIDERATION
OF ORDER QUASHING SUBPOENA
This matter is before me based on a Complaint of Discrimination brought by Scott
McGlothlin against Dominion Coal Corporation (“Dominion”), pursuant to section 105(c)(3) of
the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c)(3) (2006)
(“Mine Act” or “the Act”). McGlothlin seeks redress under section 105(c)(3) for an adverse
action allegedly motivated by his application for the protections afforded to miners afflicted with
pneumoconiosis under 30 C.F.R. Part 90.1
Alicia McGlothlin, the wife of the Complainant, is an employee of the Russell County,
Virginia, Treasurer’s Office. The Respondent seeks reconsideration of a November 7, 2014,
Order quashing a subpoena it served on the Treasurer’s Office. The subpoena sought to obtain emails concerning this discrimination matter sent by Mrs. McGlothlin from her office computer
that were reportedly deleted. Specifically, the subpoena sought to obtain the deleted material
from the office’s e-mail account server, including all archived and hard drive backup data.
The November 7, 2014, Order, which is incorporated by reference, determined, inter alia,
that the information sought was unreasonably cumulative and duplicative in view of the fact that
the Complainant provided available e-mails sent by Mrs. McGlothlin through discovery.
Moreover, the Order, citing pertinent Commission rules, as well as the Federal Rules of Civil
Procedure, concluded that seeking to forensically recover database information from the
1

Under 30 C.F.R. Part 90, a miner determined by the Secretary of Health and Human
Services to have evidence of the development of pneumoconiosis is given the opportunity to
work without loss of pay in an area of the mine where the average concentration of respirable
dust in the mine atmosphere during each shift to which that miner is exposed is continuously
maintained at or below 1.0 milligrams per cubic meter of air (“mg/m3”).

36 FMSHRC Page 3052

Treasurer’s Office was unduly burdensome. See 29 C.F.R. §§ 2700.56(b), (c); Fed. R. Civ. P.
26(b)(2)(B), (C)(i).
The Respondent filed a Motion to Reconsider the Order Granting Motion to Quash
Subpoena on November 12, 2014. In support of its reconsideration request, Dominion represents
that it has been unable to ascertain when and how “[McGlothlin] filed his Part 90 election.” In
further support of its Motion, Dominion now represents that during the course of discovery it
determined that an MSHA investigator had made reference to an e-mail received from Mrs.
McGlothlin: which has not been produced; which may have been deleted; and which may be
relevant to determining the date of McGlothlin’s Part 90 application.
As an initial matter, Dominion’s assertion that a deleted e-mail may be relevant to
determining the date of McGlothlin’s Part 90 application is speculative and does not outweigh
the burden of the Treasurer’s database retrieval. Moreover, the attorney-client privilege protects
confidential client communications. The criteria for attorney-client privilege are met when:
(1) the asserted holder of the privilege is or sought to become a client; (2) the
person to whom the communication was made (a) is a member of the bar of a
court or his subordinate and (b) in connection with this communication is acting
as a lawyer; (3) the communication relates to a fact of which the attorney was
informed (a) by his client (b) without the presence of strangers (c) for the purpose
of securing primarily either (i) an opinion on law or (ii) legal services or (iii)
assistance in some legal proceeding, and not (d) for the purpose of committing a
crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the
client.
SECRETARY OF LABOR O/B/O CHARLES SCOTT HOWARD, COMPLAINANT v.
CUMBERLAND RIVER COAL COMPANY, RESPONDENT, 34 FMSHRC 311, 314 (jan.
2012), citing Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998)
While not an attorney, the role of an MSHA investigator is to provide an opinion on the
merits of a discrimination complaint which is provided to the Solicitor’s Office in contemplation
of potential litigation. Consequently, the MSHA investigator may be deemed to be a
“subordinate” of an attorney, whose communications with a prospective complainant are
protected under the attorney-client privilege.2

2

I do not view previous e-mails to MSHA produced during discovery, if any, as a waiver
of the attorney-client privilege. This privilege applies regardless of whether the communications
are made directly to the MSHA official, or by a spouse on the complainant’s behalf.

36 FMSHRC Page 3053

ORDER
In view of the above, IT IS ORDERED that Dominion’s reconsideration request of the
November 7, 2014, Order quashing the subpoena IS DENIED.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge
Distribution:
Evan B. Smith, Esq., Wes Addington, Esq., Appalachian Citizens Law Center, Inc., 317 Main
Street, Whiteburg, KY 41858
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40552
David Hardy, Esq., Scott Wickline, Esq., Hardy Pence PLLC, 500 Lee Street East, Suite 701,
P.O. Box 2548, Charleston, WV 25329
/acp

36 FMSHRC Page 3054

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
th
721 19 STREET, SUITE 443
DENVER, COLORADO 80202-2536
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

November 18, 2014
MONA KERLOCK,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. WEST 2014-851-DM
RM-MD 14-10

v.
ASARCO, LLC,
Respondent

Ray Mine
Mine ID: 02-00150

ORDER DENYING RESPONDENT’S MOTION FOR RECONSIDERATION &
ORDER DENYING MOTION TO CERTIFY FOR INTERLOCUTORY RULING
Before: Judge Miller
This case is before me on a Complaint of Discrimination brought by Mona Kerlock, on
her own behalf, pursuant to section 105(c) of the Federal Mine Safety and Health Act of 1977, as
amended, 30 U.S.C. § 815(c) (the “Mine Act” or “Act”). On October 22, 2014 Respondent,
Asarco, LLC, filed a Motion for Reconsideration of Respondent’s Motion to Dismiss, or in the
alternative, Motion to Certify for Interlocutory Review. On November 3, 2014 Complainant
filed a statement in opposition to both of Respondent’s motions. For reasons that follow, I
DENY both of Respondent’s motions.
Asarco argues first that the court should reconsider Respondent’s August 12, 2014
motion to dismiss given that Complainant is no longer a pro se litigant and new information has
come to light which indicates that Complainant is unable to return to work. In the alternative, the
court should certify for interlocutory review its decision denying Respondent’s motion to
dismiss. Conversely, Complainant argues that her pleadings met the burden to survive a motion
to dismiss for failure to state a claim, and the change in her status from a pro se litigant to a
represented party is not a basis for reconsideration. Further, the parties are actively engaged in
discovery, dismissal at this time would be inappropriate, and the court should deny Respondent’s
request to certify this matter for interlocutory review because there is no basis for immediate
review.
On March 31, 2014 Complainant, Mona Kerlock, filed a discrimination complaint with
the Secretary of Labor, Mine Safety and Health Administration. MSHA investigated the
complaint and, based upon its review of the information gathered, determined that there was not
sufficient evidence to establish that a violation of section 105(c) occurred. Subsequently, on June
17, 2014, Complainant sent to the Commission a letter stylized as a “Request for Appeal” in
which she sought to proceed pursuant to section 105(c)(3) of the Act. On August 12, 2014
Respondent filed a motion to dismiss for failure to state a claim. Complainant, who was a pro se
litigant at the time, did not file a response. On August 27, 2014 this court issued an order
denying Respondent’s motion to dismiss. Kerlock v. Asarco, LLC, 36 FMSHRC 2404 (Aug.
2014) (ALJ). There, in treating Respondent’s motion to dismiss as a motion for summary

36 FMSHRC Page 3055

decision, I found that Complainant had properly alleged that she engaged in a protected activity
and suffered an adverse action, and that material facts were in dispute. Id. at 2405-2406.
Specifically, I noted that Complainant alleged that she, along with others at the mine, had
complained about dust in the area of the 2 Shovel and 5A Dump, and that, subsequently,
Complainant had been placed on medical leave, without full pay, and sent home despite her
contention that she could have worked in other areas at the mine. Id. at 2406. I also found that
the original complaint and subsequent Request for Appeal satisfied the minimal burden for
pleadings in 105(c) proceedings. Finally, I found that the Complainant’s status as a pro se litigant
afforded her certain protections from Asarco’s challenge to the adequacy of her pleadings. Id.
Asarco first asserts that, because Complainant is now represented by counsel, her
pleadings should no longer be held to the lower standard that the court applied in its order
denying the motion to dismiss. As a result, Respondent contends that the court should review its
conclusion that Complainant alleged a protected activity since Complainant only reported
personal health problems, and “complaints regarding a personal illness are not protected
activity[.]” Asarco Mot. at 3-4. Further, Respondent argues that the court should review its
conclusion that Complainant alleged an adverse action given that she admitted during her
workers compensation deposition that she is unable to work, and communications with
physicians show that Complainant is unable to return to work. Id. at 6-9. Therefore, Respondent
asserts that the facts demonstrate that there was no adverse action, and placing Complainant on
short term disability was a legitimate business decision.
The fact that Complainant is no longer a pro se litigant does not change the court’s
finding that Complainant satisfied the Commission’s requirements for pleadings in a 105(c)
proceeding. First, a dismissal is a drastic remedy not favored by the Courts. Next, although
Asarco argues that there is new evidence to show the pleadings are insufficient, I disagree. Not
only is there minimal change from the first motion to dismiss, there is nothing to show that the
pleadings are inadequate. In addition, material facts remain in dispute, and, therefore, summary
dismissal of this proceeding is inappropriate at this time.
Complainant’s pleadings satisfy the Commission’s minimal burden for pleadings in a
105(c) proceeding. The Commission’s procedural rules require that a discrimination complaint
need only “include a short and plain statement of the facts, setting forth the alleged . . .
discrimination or interference, and a statement of the relief requested.” 29 C.F.R. § 2700.42. This
court, in the original order denying the motion to dismiss, found that Complainant had satisfied
the burden for pleadings in a 105(c) proceeding. Kerlock v. Asarco, LLC, 36 FMSHRC 2404,
2406 (Aug. 2014) (ALJ). Specifically, the court found that the pleadings appropriately alleged
that Complainant engaged in protected activity and suffered an adverse action, and requested
relief. The finding was based on a review of the pleadings, and was not dependent on
Complainant’s status as a pro se litigant at the time. The original order denying the motion to
dismiss is clear that the denial is based not just on the pro se status, but the sufficiency of the
pleadings themselves. In fact, the decision makes reference to the Complainant’s status as a pro
se litigant as it relates to the sufficiency of the pleadings only after the discussion finding that the
Commission’s procedural rules had been satisfied. While Complainant’s status certainly
bolstered the argument for finding that the pleadings were sufficient, that finding was not
dependent upon Complainant’s pro se status. Rather, the court would have reached the same

36 FMSHRC Page 3056

conclusion if Complainant had been represented by counsel at the time. Accordingly, I reiterate
my earlier finding that Complainant’s pleadings satisfy the Commission’s procedural rules.
Complainant has alleged material facts which contradict those offered by Respondent
and, therefore, a dispute of material fact exists and summary dismissal is inappropriate. In order
to establish a prima facie case of discrimination a complaining miner must show that they
engaged in protected activity and suffered an adverse action that was motivated at least partially
by the protected activity. Id. at 2405. This court, in the original order denying the motion to
dismiss, found that Complainant alleged “that she, along with others at the mine, complained
about dust in the area of 2 Shovel and 5A Dump, and that, subsequently, she was placed on
medical leave, without full pay, and sent home despite her contention that she could have worked
in other areas at the mine.” Id. 2405-2406. While Respondent again asserts that no protected
activity occurred, I again find that Complainant, in alleging that she filed a safety complaint
regarding dust at the mine, has alleged a protected activity.1 See Perry v. Phelps Dodge Morenci
Inc., 18 FMSHRC 1918, 1921 (Nov. 1996) (Complainant properly alleged protected activity
when he pled that he complained to the mine that, due to medical problems, his operation of a
truck posed a safety hazard to both himself and others).
While Respondent asserts that new information contained in doctor’s notes and
Complainant’s deposition testimony in a workers compensation proceeding necessitate
reconsideration of the court’s finding that an adverse action was alleged, I disagree. 1 Although
Respondent asserts that Complainant, in her deposition testimony for her workers compensation
proceeding, admitted that she is unable to work, I find that this conclusion cannot be clearly
drawn from the testimony. As noted above, and in the original order denying the motion to
dismiss, Complainant alleged that she was placed on medical leave, without full pay. This
certainly is an allegation of an adverse action. Respondent has the ability at hearing to raise the
defense that the adverse action was a justified business decision, but there is nothing in its
motion that would lead me to believe that Kerlock failed to allege an adverse action. While
Respondent asserts that the action was motivated by legitimate business reasons, Complainant
alleges that it was motivated by the complaint she made. Asarco’s motion seeks to have this
matter dismissed for Complainant’s failure to prove her case based on her pleadings. However,
Complainant is not required to do so, and, rather, is simply obligated to meet the Commission’s
minimal pleading requirements, which she has done. At this point, a dispute of material fact
remains regarding both the complaint made by Kerlock, and the circumstances surrounding the
adverse action. Accordingly, I reiterate my earlier finding that material facts are in dispute and
that summary dismissal of this proceeding is inappropriate at this time.
Finally, Asarco argues that, in the event the Court denies its motion for reconsideration, it
should certify the issue of the adequacy of Complainant’s pleadings for interlocutory review.
Asarco argues that a controlling question of law exists on the issue of whether its motion to
1

Respondent asserts that the court, in denying the original motion to dismiss, relied on a
statement that was not contained in the motion. To the extent that the language in the order
denying the motion to dismiss was not clear, the court clarifies here that it intended to draw
attention to the fact that Respondent has acknowledged that a truck driver who suffers a reaction
due to exposure to something in the mine atmosphere could be a hazard to not only themselves,
but also to others at the mine.

36 FMSHRC Page 3057

dismiss should be granted, and particularly that Complainant did not adequately plead a
protected activity and adverse action. Asarco asserts that the motion to dismiss would have been
granted had the court been aware of the most recent communications from Complainant’s
physicians and Complainant’s deposition testimony, and Complainant had not been a pro se
litigant at the time the motion was filed. Id. Respondent avers that immediate review of this
matter will materially advance the case since a favorable finding would bring the case to a close,
and the parties would be able to avoid further negotiation, discovery, trial preparation and
expense. Id. at 11. In addition, review could help to expedite the discovery process and any
settlement. Id. I find no merit to Asarco’s assertion that interlocutory review is appropriate in this
case.
The Commission's Procedural Rules state that “[i]nterlocutory review by the Commission
shall not be a matter of right but of the sound discretion of the Commission.” 29 C.F.R. §
2700.76(a). Interlocutory review “cannot be granted unless . . . [t]he Judge has certified, upon . .
the motion of a party, that [her] interlocutory ruling involves a controlling question of law and
that in [her] opinion immediate review will materially advance the final disposition of the
proceeding.” Id. at § 2700.76(a)(1)(i).
I find that this matter does not involve a controlling question of law. The question in this
matter involves the sufficiency of the Complainant’s pleadings. This issue is not novel nor does
it involve an unresolved question of law as relevant to case. As discussed above, in the original
order denying the motion to dismiss, and in Commission case law, there is a minimal burden for
pleadings in 105(c) matters. Perry v. Phelps Dodge Morenci Inc., 18 FMSHRC 1918, 1921
(Nov. 1996). Here, the pleadings were sufficient when Complainant was pro se, would have been
sufficient had Complainant been represented by counsel at that time, and remain sufficient at
present. Accordingly, I find that there is no controlling question of law at issue.
I find that immediate review will not materially advance the final disposition of this
matter. Respondent has not exhibited any sense of urgency which would accompany the need for
immediate review. The court issued the original order denying Respondent’s motion to dismiss
on August 27, 2014. Rather than properly seek interlocutory review of that order as required by
the Commission rules, Respondent filed a petition for discretionary with the Commission on
September 26, 2014. While the petition was timely filed exactly 30 days after the issuance of my
order, the Commission’s October 2, 2014 order denied Respondent’s petition because a final
decision ending my jurisdiction over this matter had not been issued. Kerlock v. Asarco, LLC, 36
FMSHRC __, slip op. (Docket No. WEST 2014-851-DM) (Oct. 2, 2014). Rather than
immediately file a motion for certification of interlocutory review, Respondent waited until
October 22, 2014 to file the instant motions. Based on the timing of Respondent’s filings, I am
not convinced that there is an urgent need to have this motion put before the Commission.
While Respondent asserts that a favorable ruling by the Commission on interlocutory
review would avoid further need for negotiation, discovery and trial preparation, the same could
be said of most every case in which a judge has denied a party’s motion to dismiss. There is
nothing unique about this case that warrants the need for immediate review of my interlocutory
ruling on the pleadings. As Complainant points out, the parties are actively engaged in discovery,
with both sides awaiting additional disclosures. It would be a disservice to both parties for the

36 FMSHRC Page 3058

court to halt this matter so that the Commission can review a motion for summary dismissal in a
case where discovery is still in its infancy, the record is far from being complete, and the court
believes it unlikely that Respondent will succeed in its attempt to have the case dismissed. This
case is presently set for hearing on January 21, 2015, just over two months from now. I find that
certification of this matter for interlocutory review is more likely to delay the final disposition of
this matter than materially advance it.
Accordingly, based on my above findings, Respondent’s Motion for Reconsideration of
Respondent’s Motion to Dismiss is DENIED. Further, Respondent’s Motion to Certify for
Interlocutory Review is also DENIED. This case remains set for hearing on January 21, 2015.
The court encourages the parties to continue to engage in necessary discovery and settlement
discussions.

/s/ Margaret A. Miller
Margaret A. Miller
Administrative Law Judge

Distribution:
Tyler Allen, Shannon Peters, Tyler Allen Law Firm, 4291 North 24th Street, Suite 150
Phoenix, AZ 80516
Donna Pryor, Mark Savit, Jackson Lewis, 950 17th Street, Suite 2600, Denver, CO 80202

36 FMSHRC Page 3059

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9933
FAX: 202-434-9949

November 26, 2014
BRODY MINING, LLC,
Contestant,
v.

CONTEST PROCEEDINGS
Docket No. WEVA 2014-82-R
Order No. 9003242; 10/28/2013
Docket No. WEVA 2014-83-R
Order No. 7166788; 10/28/2013

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

Docket No. WEVA 2014-86-R
Order No. 4208892; 10/29/2013
Docket No. WEVA 2014-87-R
Order No. 4208893; 10/29/2013
Docket No. WEVA 2014-97-R
Order No. 7166790; 11/04/2013
Docket No. WEVA 2014-151-R
Order No. 9003246; 11/07/2013
Docket No. WEVA 2014-161-R
Order No. 9004638; 11/12/2013
Docket No. WEVA 2014-190-R
Order No. 4208898; 11/14/2013
Docket No. WEVA 2014-191-R
Order No. 7166793; 11/18/2013
Docket No. WEVA 2014-192-R
Order No. 4208899; 11/19/2013
Docket No. WEVA 2014-193-R
Order No. 9005720; 11/20/2013
Docket No. WEVA 2014-221-R
Order No. 8155306; 11/26/2013
Docket No. WEVA 2014-244-R
Order No. 9005722; 12/03/2013

36 FMSHRC Page 3060

Docket No. WEVA 2014-284-R
Order No. 8154092; 12/05/2013
Docket No. WEVA 2014-285-R
Order No. 7166798; 12/09/2013
Docket No. WEVA 2014-447-R
Order No. 7166805; 01/15/2014
Docket No. WEVA 2014-448-R
Order No. 7166806; 01/15/2014
Docket No. WEVA 2014-449-R
Order No. 7166807; 01/15/2014
Docket No. WEVA 2014-450-R
Order No. 7166808; 01/15/2014
Docket No. WEVA 2014-451-R
Order No. 8154104; 01/15/2014
Docket No. WEVA 2014-452-R
Order No. 9005729; 01/13/2014
Docket No. WEVA 2014-453-R
Order No. 9005731; 01/13/2014
Docket No. WEVA 2014-454-R
Order No. 9005732; 01/14/2014
Docket No. WEVA 2014-455-R
Order No. 9005733; 01/14/2014
Docket No. WEVA 2014-456-R
Order No. 9005735; 01/15/2014
Docket No. WEVA 2014-457-R
Order No. 9005736; 01/15/2014
Docket No. WEVA 2014-479-R
Order No. 7166815; 01/23/2014
Docket No. WEVA 2014-480-R
Order No. 7166816; 01/23/2014

36 FMSHRC Page 3061

Docket No. WEVA 2014-529-R
Order No. 7166817; 01/27/2014
Docket No. WEVA 2014-530-R
Order No. 9005739; 01/27/2014
Docket No. WEVA 2014-531-R
Order No. 9005747; 02/10/2014
Docket No. WEVA 2014-537-R
Order No. 9007544; 02/04/2014
Docket No. WEVA 2014-539-R
Order No. 7166822; 01/28/2014
Docket No. WEVA 2014-561-R
Order No. 9005740; 01/27/2014
Docket No. WEVA 2014-562-R
Order No. 9005742; 01/29/2014
Docket No. WEVA 2014-563-R
Order No. 7166826; 02/04/2014
Docket No. WEVA 2014-570-R
Order No. 9005750; 02/19/2014
Docket No. WEVA 2014-571-R
Order No. 7166824; 01/29/2014
Docket No. WEVA 2014-572-R
Order No. 9005741; 01/29/2014
Docket No. WEVA 2014-593-R
Order No. 9005753; 02/20/2014
Docket No. WEVA 2014-594-R
Order No. 7166831; 02/11/2014
Docket No. WEVA 2014-638-R
Order No. 9005754; 02/24/2014
Docket No. WEVA 2014-639-R
Order No. 9005762; 03/04/2014

36 FMSHRC Page 3062

Docket No. WEVA 2014-640-R
Order No. 9003274; 03/04/2014
Docket No. WEVA 2014-641-R
Order No. 9005763; 03/04/2014
Docket No. WEVA 2014-672-R
Order No. 9005758; 02/25/2014
Docket No. WEVA 2014-673-R
Order No. 9005756; 02/25/2014
Docket No. WEVA 2014-674-R
Order No. 7166838; 02/24/2014
Docket No. WEVA 2014-675-R
Order No. 7166839; 02/24/2014
Docket No. WEVA 2014-676-R
Order No. 8166840; 02/24/2014
Docket No. WEVA 2014-678-R
Order No. 7166837; 02/24/2014
Docket No. WEVA 2014-679-R
Order No. 9005755; 02/24/2014
Docket No. WEVA 2014-680-R
Order No. 9005757; 02/25/2014
Docket No. WEVA 2014-681-R
Order No. 9005759; 02/25/2014
:
Docket No. WEVA 2014-715-R
Order No. 8135796; 03/11/2014
Docket No. WEVA 2014-716-R
Order No. 8135797; 03/12/2014
Docket No. WEVA 2014-717-R
Order No. 9001091; 03/11/2014
Docket No. WEVA 2014-718-R
Order No. 9001095; 03/19/2014

36 FMSHRC Page 3063

Docket No. WEVA 2014-719-R
Order No. 9001096; 03/11/2014
Docket No. WEVA 2014-720-R
Order No. 9005764; 03/05/2014
Docket No. WEVA 2014-722-R
Order No. 9007123; 03/23/2014
Docket No. WEVA 2014-745-R
Order No. 9969627; 03/24/2014
Docket No. WEVA 2014-804-R
Order No. 9005343; 04/03/2014
Docket No. WEVA 2014-805-R
Order No. 9005768; 04/03/2014
Docket No. WEVA 2014-806-R
Order No. 9005769; 04/07/2014
Docket No. WEVA 2014-807-R
Order No. 9005770; 04/07/2014
Docket No. WEVA 2014-811-R
Order No. 9005344; 04/09/2014
Docket No. WEVA 2014-813-R
Order No. 9005772; 04/09/2014
Docket No. WEVA 2014-814-R
Order No. 9005773; 04/09/2014
Docket No. WEVA 2014-819-R
Order No. 9005774; 04/15/2014
Docket No. WEVA 2014-854-R
Order No. 9005778; 04/21/2014
Docket No. WEVA 2014-855-R
Order No. 9005779; 04/22/2014
Docket No. WEVA 2014-856-R
Order No. 9005780; 04/22/2014

36 FMSHRC Page 3064

Docket No. WEVA 2014-909-R
Order No. 9005347; 05/01/2014
Docket No. WEVA 2014-974-R
Order No. 9005349; 05/13/2014
Docket No. WEVA 2014-975-R
Order No. 9005350; 05/13/2014
Docket No. WEVA 2014-976-R
Order No. 9007426; 05/13/2014
Docket No. WEVA 2014-1012-R
Order No. 9005786; 05/29/2014
Docket No. WEVA 2014-1013-R
Order No. 9005787; 05/29/2014
Docket No. WEVA 2014-1035-R
Citation No. 9005792; 06/12/2014
Docket No. WEVA 2014-1036-R
Citation No. 9005362; 06/11/2014
Docket No. WEVA 2014-1037-R
Citation No. 9005360; 06/04/2014
Docket No. WEVA 2014-1038-R
Citation No. 9005361; 06/11/2014
Docket No. WEVA 2014-1135-R
Order No. 9905374; 07/15/2014
Docket No. WEVA 2014-1138-R
Order No. 9005376; 07/16/2014
Docket No. WEVA 2014-1157-R
Order No. 9009660; 07/22/2014
Docket No. WEVA 2014-1993-R
Order No. 9005384; 07/30/2014
Docket No. WEVA 2014-1994-R
Order No. 9005383; 07/30/2014

36 FMSHRC Page 3065

Docket No. WEVA 2014-1995-R
Order No. 9005382; 07/30/2014
Docket No. WEVA 2014-1996-R
Order No. 9005380; 07/30/2014
Docket No. WEVA 2014-2172-R
Order No. 9003948; 09/08/2014
Docket No. WEVA 2014-2173-R
Order No. 9005393; 09/09/2014
Docket No. WEVA 2014-2174-R
Order No. 9005398; 09/10/2014
Docket No. WEVA 2014-2175-R
Order No. 9005400; 09/10/2014
Docket No. WEVA 2014-2221-R
Order No. 9007439; 09/17/2014
Docket No. WEVA 2015-59-R
Order No. 7272454; 10/07/2014
Docket No. WEVA 2015-60-R
Order No. 7272462; 10/07/2014
Docket No. WEVA 2015-61-R
Order No. 7272494; 10/07/2014
Docket No. WEVA 2015-63-R
Order No. 9005704; 10/14/2014
Docket No. WEVA 2015-66-R
Order No. 9005705; 10/14/2014
Docket No. WEVA 2015-67-R
Order No. 9006768; 10/14/2014
Docket No. WEVA 2015-68-R
Order No. 9006769; 10/14/2014
Docket No. WEVA 2015-121-R
Order No. 7219154; 10/24/2014

36 FMSHRC Page 3066

Mine: Brody Mine No. 1
Mine ID: 46-09086

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 2013-370
A.C. No. 46-09086-308309
Docket No. WEVA 2013-564
A.C. No. 46-09086-310927
Docket No. WEVA 2013-997
A.C. No. 46-09086-321030
Docket No. WEVA 2013-1055
A.C. No. 46-09086-323691
Docket No. WEVA 2013-1189
A.C. No. 46-09086-326531
Docket No. WEVA 2013-619
A.C. No. 46-09086-342759
Docket No. WEVA 2013-620
A.C. No. 46-09086-342759
Docket No. WEVA 2014-702
A.C. No. 46-09086-344708
Docket No. WEVA 2014-842
A.C. No. 46-09086-347271

BRODY MINING, LLC,
Respondent.

Mine: Brody Mine No. 1

36 FMSHRC Page 3067

ORDER DENYING SECRETARY’S “EMERGENCY” MOTION TO STAY
Appearances:

Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, VA, for the Secretary
Lauren Marino, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, VA, for the Secretary
Dana Ferguson, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, VA, for the Secretary
Jason Grover, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, VA, for the Secretary
Ronald Gurka, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, VA, for the Secretary
Michael T. Cimino, Esq., Jackson Kelly, PLLC, Charleston, WV, for
Brody Mining, LLC
R. Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, PA, for Brody
Mining, LLC
Benjamin M. McFarland, Esq., Jackson Kelly, PLLC, Wheeling, WV, for
Brody Mining, LLC
K. Brad Oakley, Esq., Jackson Kelly PLLC, Lexington, KY, for Brody
Mining, LLC
Adam J. Schwendeman, Esq., Jackson Kelly PLLC, Charleston, WV, for
Brody Mining, LLC

Before:

Judge William B. Moran

The Secretary has filed what it has characterized as an “Emergency Motion to Stay,”
(“Motion”), seeking to have this Court stay its November 1, 2014, Order, dismissing the
Secretary’s pattern of violations action against the Respondent. A response was filed by
Respondent, Brody Mining, LLC. Upon consideration, for the reasons which follow, the
Secretary’s Motion is DENIED.
The Secretary’s Motion
In its Emergency Motion to stay,1 the Secretary begins by noting, correctly, that this
Court’s November 1, 2014, Order precludes MSHA from issuing any further withdrawal orders
under Section 104(e) of the Mine Act, which is the “pattern of violations” provision. 30 U.S.C. §
814(e).
The motion observes that four factors are to be evaluated in deciding whether a stay is
appropriate: “(1) the likelihood that the movant will prevail on the merits of its appeal; (2)
1

Despite its characterization that its motion is an “emergency,” the Secretary relates that
it will take “perhaps several weeks” to draft the documents in its effort to obtain interlocutory
review. Motion at 2. Therefore, it seeks a stay of the Court’s Order until it files for such review,
a route which will first entail a ruling by the Court.

36 FMSHRC Page 3068

irreparable harm to the movant if the stay is not granted; (3) absence of adverse effects on other
interested parties; and (4) a showing that the stay is in the public interest.” Motion at 2.
Speaking to the first factor, the Secretary the asserts that it has “at least four reasons”
making it likely that it will prevail:
(a) the Court did not have jurisdiction to dismiss the POV “charges”; (b) even if
the Court did have jurisdiction, its due process analysis is erroneous; (c) the Mine
Act does not require the Secretary to define “pattern of violations”; and (d) the
Secretary provided both: (i) a definition of “pattern of violations,” and (ii) fair
notice to Brody of the basis for his POV determination.
Id.
Each of these will now be briefly discussed. Regarding the Secretary’s claim that the
Court did not have jurisdiction to dismiss the POV charges, he notes that Brody has appealed, on
an interlocutory basis, the Commission’s “jurisdiction to adjudicate—[and his decision]
uphold[ing]—the validity of the POV Rule itself and the POV notice” to the D.C. Circuit Court
of Appeals. As the circuit court’s jurisdiction is exclusive, per Section 106(a) of the Mine Act,
30 U.S.C. 816(a), the Secretary contends that this Court “did not have jurisdiction to adjudicate
the validity of the POV notice or, as the Court referred to it, the POV ‘charges.’” Motion at 3.
In its Response, Brody notes that the Secretary never made such a claim in the weeks
leading up to the hearing nor during the three consecutive weeks of hearings in which the
citations constituting the alleged pattern were heard. Response at 7-8. It points to the Secretary’s
July 17, 2014, position statement in which he acknowledges that “[s]hould the Commission
agree with the Secretary’s view, then a hearing on the citations listed in the POV Notice and
whether those citations establish a pattern of violations would be appropriate.” Sec. Position
Statement at 10 (emphasis added). Until now, with this Motion, the Secretary has acknowledged
that a POV notice can be challenged.2 Pointing to a number of indicia, among those, Brody notes
2

The Secretary is apparently flummoxed by the Court’s use of the term “POV charges,”
which it describes as a “vague term.” It is observed that, if the Court’s reference to “POV
charges” is vague, it is not nearly as vague as the term “pattern of violations.” It is ironic that the
Secretary has failed to define its own vague term even in the face of litigation asserting the
presence of a pattern. And yet one would think, and hope, that there had to have been some sort
of thought process, internally, that led the Secretary to assert that the violations constituted such
a pattern in order for them to make that claim and not that it simply grouped some violations
dealing with escapeways, roof control, and ventilation, and left it at that. That observation aside,
the Secretary reads into the Court’s use of term “POV charges,” suggesting that, by employing it,
the Court knew it did not have jurisdiction to adjudicate the validity of the POV notice. Motion
at 3. To clear up any confusion, the Court advises that it employed that term simply as an
alternative, short-hand expression for expressing that the Secretary’s burden before the Court
was for him to first lay out the basis for its claim that the groups of violations “taken alone or
together, constitute a pattern of violations of mandatory health and safety standards,” and then to
(continued…)

36 FMSHRC Page 3069

that, during the hearing, the Secretary would at times pop up to assert that, albeit as a conclusion
only, that a pattern had just been shown, as evidence that he knew that the POV notice and a
pattern were in issue.3 Response at 8.
As for the claim that because there is an appeal before the United States Court of
Appeals, challenging the Commission’s interlocutory ruling, Brody notes that the matters before
this Court are distinct from those before the federal court of appeals. Response at 9. The Court
agrees4 and would note, apart from that observation, that the particular violations forming the
underlying basis for the POV notice, and whether such violations as were proven were also
significant and substantial, have a life untethered to the distinct matters before the Court of
Appeals.
The Secretary also contends that, even if the Court has jurisdiction, its due process
analysis was erroneous, because neither the POV notice, nor a withdrawal order emanating from
such a notice, is punitive. Motion at 4. As the Secretary sees it, a withdrawal order is merely a
“remedial enforcement action designed to protect the safety and health of miners working in
mines whose operators have inspection histories of chronic violations of safety and health
standards.” Id. Although the Secretary oddly avoids use of the term, the “remedial enforcement
action” to which he is referring, is the pattern of violations charge. Besides, the Secretary
continues,
Brody had fair notice of what it had to do to comply with the law: comply with
existing mandatory safety and health standards. Nothing in the POV Rule, the
POV notice, or the POV withdrawal orders affected Brody’s pre-existing
obligation to comply with such standards. On the contrary, both the Rule and the
2

(…continued)
establish that the 54 citations/orders, undergirding these particular POV charges, in fact had the
significant and substantial characteristic. The Secretary failed, despite the Court’s instructions,
to identify the basis for his claim of a pattern of violations. Had the Secretary complied, at the
conclusion of the evidentiary hearing for the disputed citations/orders, the Court would then have
been in a position to rule upon the Secretary’s basis underlying the bald phrase “pattern of
violations” and then to apply that determination to those violations established as having the
significant and substantial element.
3

However, as the Court had previously noted, in its November 1st Order, the Secretary
apparently believes that asserting, by fiat, that something is a pattern is enough and that there is
no need to look beyond that assertion for it to explain how a given number of violations
constitute such a pattern.
4

Thus, the Court agrees that the issues before the Court of Appeals are the validity of the
rule and MSHA’s website criteria, which were the same, limited issues that were before the
Commission.
In addition, as Brody notes, that appeal does not include all of the pre-penalty
contest docket numbers, which include “the ones used by the Secretary in its Position Statement
and Prehearing Statement.” Response at 9. As each of those contests raised the issue of the
validity of the pattern notice, at a minimum, the exclusivity argument does not apply to those.

36 FMSHRC Page 3070

notice provided Brody with fair notice that its next S&S violation would trigger a
withdrawal order.
Id.
This analysis by the Secretary conflates the obligation to comply with mandatory safety
and health standards, with a pattern of violations claim, as if they are the same thing. They are
not. Further, the analysis suggests that a POV notice, by itself, establishes a POV, a conclusion
supported by the Secretary’s very next statement that, by giving such a POV notice, that act of
notification “provided Brody with fair notice that its next S&S violation would trigger a
withdrawal order.” Id. The Secretary’s position cannot withstand scrutiny, and his stance
highlights the concern expressed by the Court in its Order dismissing the POV charges, as it
exposes the Secretary’s apparent belief that it need only issue a pattern of violation notice to
prove a pattern, all without ever having to state how the violations constitute a pattern.
The correctness of the Court’s interpretation is evident with the Secretary’s next claim in
his motion, a claim that the Mine Act “does not require the Secretary to define ‘pattern of
violations.’” Id. To support the claim that he need not define a pattern, the Secretary notes that
Section 104(e)(4) requires only that “[t]he Secretary shall make such rules as he deems necessary
to establish criteria for determining when a pattern of violations of mandatory health or safety
standards exists.” Id. However, to note that the provision requires only “such rules as he deems
necessary to establish criteria for determining when a pattern of violations of mandatory health
or safety standards exists” is not the same as suggesting that the Secretary is completely excused
from articulating what constitutes a pattern at all. Accordingly, though the rules for establishing
such criteria may be optional, in the context of litigation, the obligation to state the basis for the
pattern in the POV notice in a given case is not optional.
Though the Secretary bypasses it, Brody reminds that the Commission has acknowledged
that a mine operator has a substantial interest, as each section 104(e) order results in a mine
closure. Response at 10. In addition, the Court notes that the Secretary, unburdened with any
definition of a pattern, has moved forward in the face of nearly half (25 of 54) of the violations
constituting its pattern notice having been lost as a consequence of the hearings that have been
held.
In maintaining that it did provide “a definition of [a] ‘pattern of violations,’” the
Secretary asserts that, by identifying the 54 citations and orders that constitute its pattern claim,
and by further dividing those citations into four groups, that identification, perforce, establishes
patterns of violations. Motion at 5. Although the Secretary then acknowledges that only 29 of the
54 citations and orders were upheld, it then contradicts its assertion that it did provide a
definition, stating that “[w]hether those 29 S&S violations suffice to establish a pattern is a
matter for the ALJ’s judgment, guided by the definition of a “pattern” and case law concerning
patterns under other statutes.” Id. Covering ground which has already been addressed by the
Court in its November 1, 2014, Order, the Secretary repeats that a “mode of behavior or series of
acts that are recognizably consistent” is a pattern and that this can mean two violations
sometimes and more than two at other times, reasserting that it is for the Court to apply the
Secretary’s “definition” and decide if a pattern was established. Motion at 5-6.

36 FMSHRC Page 3071

Moving to the three remaining factors, the Secretary contends that irreparable harm will
result if the stay is not granted. Motion at 6. With no definition of a pattern as applied to the 54
citations/orders, the Secretary asserts that “Brody’s inspection history shows that the safety and
health of its miners has not been adequately protected by non-POV measures.” Id. Turning
around that he did not prevail on 25 of the citations/orders composing his pattern claim, to note
that he won on 29 of them, without explanation, the Secretary asserts that the 29 left standing
support its POV notice. Id. The Secretary then jumps to a matter unrelated matter to his POV
notice, asserting that “since the POV notice was issued, MSHA has cited Brody for scores of
new S&S violations, two of which contributed to the deaths of two miners on May 12, 2014.”
Motion at 6 (emphasis added). Putting aside for the moment that those matters have not been
litigated and therefore that there is only a claim that those newly alleged violations contributed to
deaths, those subsequent charges are completely immaterial to the issues in the Motion and do
not in any way establish “irreparable harm.” The Secretary addresses the “public interest”
element for a stay by asserting that the same reasons advanced to show irreparable harm, also
establish that the stay is in the public interest. Id.
In further support of this conclusion, on November 6, 2014, in what was, in effect, a
supplemental comment to its Motion, the Secretary, via email, acknowledged, in response to the
Court’s inquiry, that all the section 104(e) withdrawal orders, save one, have been abated. E-mail
from Jason Grover, Co-Counsel for Trial Litigation, Mine Safety and Health Division, to
William Moran, Michael Small, Michael Cimino, R. H. Moore, and Robert Wilson (Nov. 6,
2014, 05:26 PM EST). The Secretary then contended in that email that his concern was directed
at future violations, asserting that the “issue is about the Secretary’s ability to issue new Section
104(e) orders as the need arises. The need could arise today, tomorrow, or the day after. We
construe the 11/3 order to effectively preclude MSHA from issuing a new Section 104(e)
withdrawal order.” Id.
Neither contention has merit. First, the Secretary is correct that the Court’s Order
effectively precludes MSHA from issuing any new section 104(e) withdrawal orders. But it is
not as if a pattern of violations notice is its only enforcement tool, a fact recognized in the past
35 years since the Act’s enactment. For example, apart from any S&S component, a section
104(a) citation’s issuance will bring about a withdrawal order if the cited condition is not abated
within the time allowed by the issuing inspector.5 Thus, upon issuance of a citation under section
104(a), an operator will face an order issued under section 104(b) for a failure to abate a
violation cited under section 104(a), and section 104(d) citations and orders are issued when a
mine operator commits an unwarrantable violation. When appropriate, imminent danger orders
are also available. The point is that the Mine Act provides a variety of enforcement tools, all of
which have been in use since the 1977 Act.
5

In order to establish the validity of a Section 104(b) Order, the Secretary has the burden
of proving by a preponderance of the evidence the existence of the initial underlying citation,
including a reasonable time for abatement; the expiration of the abatement time; the failure to
abate the cited violative conditions; and that the abatement time should not be extended.
Paramont Coal Co. Va., LLC, 35 FMSHRC 1118 (Apr. 2013) (ALJ) (citing Clinchfield Coal Co.
v. UMWA, 11 FMSHRC 2120, 2135 (Nov. 1989)).

36 FMSHRC Page 3072

The Court concludes that, due to the availability of other enforcement tools available to
MSHA, the Secretary’s claim of irreparable harm and the claim that a stay is in the public
interest are not meritorious.
Last, the Secretary declares that “[n]o other parties will be adversely affected by a stay.”
Motion at 7. The Secretary adds that “the costs of avoiding a POV withdrawal order exist
independent of the POV Rule and the POV notice; they are simply the costs of complying with
the existing mandatory safety and health standards under the Mine Act.” Id. But Brody will most
certainly be adversely affected by the stay, and the Secretary’s request for a stay, while preparing
the inevitable motion for interlocutory review and a determination on that by the Court and
ultimately by the Commission, demonstrates that the mine operator’s challenge to the POV
Notice will be anything but expeditious. This protracted process conflicts with MSHA’s promise
in the Final Rule that the Pattern of Violations review process for mine operators would be
expeditious.6
Accordingly, the Secretary’s Emergency Motion to Stay is DENIED.
SO ORDERED.

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

6

As MSHA observed in its Final Rule for pattern of violations, “The Supreme Court has
held that adequate post-deprivation procedures are sufficient to satisfy due process where public
health and safety are at stake. . . . The Mine Act guarantees due process for mine operators
subject to MSHA enforcement actions. A mine operator may seek expedited temporary relief
under section 105(b)(2) of the Mine Act from a pattern designation provided a withdrawal order
is issued under section 104(e). Operators must have at least one withdrawal order in order to
contest the pattern designation. Requests for temporary relief are reviewed within 72 hours and
assigned to a Commission Administrative Law Judge as a matter of procedure, provided the
request raises issues that require expedited review. The Mine Act's expedited review procedure
satisfies the Constitution's due process requirements. ” Pattern of Violations, Final Rule, 78 Fed.
Reg. 5056, 5061 (Jan. 23, 2013) (citations omitted).

36 FMSHRC Page 3073

Distribution:
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1500, 401 Liberty
Avenue, Pittsburgh, PA 15222
Michael T. Cimino, Esq., Jackson Kelly, PLLC, 500 Lee Street East, Suite 1600, Charleston,
WV 25301-3202
Benjamin M. McFarland, Esq., Jackson Kelly, PLLC, 1144 Market Street, Wheeling, WV 26003
Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22 Floor West, Arlington, VA 22209-3939
Jason Grover, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., Room
2226, Arlington, VA 22209-2296
K. Brad Oakley, Esq., Jackson Kelly PLLC, 175 East Main Street, Suite 500, Lexington, KY
40507
Adam J. Schwendeman, Esq., Leanna Colston, 500 Lee Street East, Suite 1600, Charleston, WV
25301-3202
Ronald Gurka, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
Room 2226, Arlington, VA 22209-2296
Dana Ferguson, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
Room 2226, Arlington, VA 22209-2296

36 FMSHRC Page 3074