June 2014
TABLE OF CONTENTS
COMMISSION DECISIONS
06-02-2014

MACH MINING, LLC

LAKE 2009-427

Page 1525

06-13-2014

TWENTYMILE COAL COMPANY

WEST 2008-788-R

Page 1533

06-13-2014

CONNOLLY-PACIFIC COMPANY

WEST 2011-1238

Page 1549

COMMISSION ORDERS
06-20-2014

COLD SPRING GRANITE COMPANY

CENT 2013-515-M

Page 1559

06-20-2014

CLINTWOOD ELKHORN MINING
COMPANY, INC.

KENT 2011-1354

Page 1563

06-20-2014

ALABAMA MARBLE COMPANY, INC.

SE 2012-226-M

Page 1566

ADMINISTRATIVE LAW JUDGE DECISIONS
06-03-2014

TAFT PRODUCTION COMPANY

WEST 2013-908-M

Page 1573

06-05-2014

REVELATION ENERGY, LLC

KENT 2011-357-R

Page 1581

06-06-2014

MARCO CRANE

WEST 2012-894-M

Page 1610

06-10-2014

TUSCALOOSA RESOURCES

SE 2012-490

Page 1615

06-11-2014

POCAHONTAS COAL COMPANY, LLC

WEVA 2014-642-R

Page 1645

06-12-2014

THE DOE RUN COMPANY

CENT 2013-605-M

Page 1650

06-18-2014

SEC. OF LABOR O/B/O KEITH
OVERFIELD V. HIGHLAND MINING
COMPANY, LLC

KENT 2014-483-D

Page 1659

06-19-2014

BIG RIDGE, INC.

LAKE 2012-453-R

Page 1677

06-20-2014

GORDON SAND COMPANY

WEST 2014-47-M

Page 1750

06-23-2014

SAIIA CONSTRUCTION, LLC

SE 2010-877-M

Page 1752

06-24-2014

SEC. OF LABOR O/B/O ROBERTO
VEGA V. CANTERA EL TUQUE, INC.

SE 2014-300-DM

Page 1770

i

ADMINISTRATIVE LAW JUDGE ORDERS
06-12-2014

OAK GROVE RESOURCES, LLC

SE 2013-301

Page 1777

06-23-2014

LESLIE A. PRIDE V. HIGHLAND
MINING COMPANY, LLC.

KENT 2010-318-D

Page 1792

06-24-2014

AUSTIN POWDER COMPANY

PENN 2012-116-R

Page 1802

06-26-2014

M-CLASS MINING, LLC

LAKE 2013-47

Page 1805

ii

Review was granted in the following cases during the month of June 2014:
Pocahontas Coal Company, LLC v. Secretary of Labor, MSHA, Docket No. WEVA 2014-202-R.
(Judge Miller, May 20, 2014)
Secretary of Labor, MSHA v. The American Coal Company, Docket Nos. LAKE 2008-666, LAKE
2008-667, LAKE 2009-6-A. (Judge Zielinski, May 19, 2014)

Review was denied in the following case during the month of June 2014:
Secretary of Labor, MSHA v. Clintwood Elkhorn Mining Company, Docket Nos. KENT 20111354, KENT 2011-1385 and KENT 2011-1386 (Judge Rae, May 14, 2014)

.
.

iii

COMMISSION DECISIONS

36 FMSHRC Page 1524

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW
SUITE 520N
WASHINGTON, DC 20004

June 2, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
MACH MINING, LLC

:
:
:
:
:
:
:
:

Docket No. LAKE 2009-427
A.C. No. 11-03141-180760-02

BEFORE: Jordan, Chairman;Young, Cohen, Nakamura, and Althen, Commissioners
DECISION
BY THE COMMISSION:
In this proceeding arising under the Federal Mine Safety and Health Act, 30 U.S.C. § 801
et seq. (2012) (“Mine Act” or “Act”), the Commission, by sua sponte review, directed the parties
to address whether the Administrative Law Judge correctly determined that an escapeway
violation1 was not significant and substantial (“S&S”).2 33 FMSHRC 2428, 2435-36 (Oct. 2011)
(ALJ). Mach also filed a petition for discretionary review contesting the Judge’s high
negligence finding associated with the escapeway violation. The Commission granted the
petition. For the reasons stated herein, we affirm in result the Judge’s S&S determination, and
we affirm the Judge’s high negligence determination.

The standard at issue, 30 C.F.R. § 75.380(d)(4)(ii), requires that “[w]here the route of
travel passes through doors or other permanent ventilation controls, the escapeway shall be at
least 4 feet wide to enable miners to escape quickly in an emergency.”
1

The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C.
§ 814(d)(1), which distinguishes as more serious any violation that “could significantly and
substantially contribute to the cause and effect of a . . . mine safety or health hazard.”
2

36 FMSHRC Page 1525

I.
Facts and Proceedings Below
During a February 12, 2009 inspection, an inspector with the U.S. Department of Labor’s
Mine Safety and Health Administration (“MSHA”) observed that one of the primary escapeways
of Mach #1 Mine had been narrowed to 26 inches in width. 33 FMSHRC at 2433. This had
been done by closing the regulator on the entryway. A regulator is a concrete wall with a hole
knocked out of it to control the amount and velocity of air going to the section. Id. at n.9. As a
result, the inspector issued a citation for a violation of section 75.380(d)(4)(ii), alleging that the
escapeway was not at least four-feet wide. Id. at 2433.
After a hearing on the merits, the Judge concluded that a violation of section
75.380(d)(4)(ii) had occurred. Id. The Judge found that the violation was not S&S. Id. at 243536. The Judge concluded that Mach’s level of negligence was “relatively high” because Mach’s
president and mine superintendent, Anthony Webb, was aware of the violative condition for a
number of weeks prior to the citation and was subject to a high standard of care as a supervisor.
Id. at 2435 n.11, 2437-38.
II.
Disposition
A.

S&S

On the S&S issue, both parties agree that the violation is not S&S. Based on the record,
we affirm the Judge in result.
B.

Negligence

The Commission reviews a Judge’s negligence finding, which is a component of a
penalty assessment, to determine whether the factual findings are supported by substantial
evidence3 and are consistent with the statutory penalty criteria set forth in section 110(i) of the
Mine Act, 30 U.S.C. § 820(i). Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986).
We conclude that the Judge’s finding of relatively high negligence is supported by
substantial evidence. The record demonstrates that the mine president and superintendent,
When reviewing an administrative law judge’s factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as a reasonable
mind might accept as adequate to support [the judge’s] conclusion.’” Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)).
3

36 FMSHRC Page 1526

Anthony Webb, had knowledge of the narrowed regulator, and that the condition had existed for
approximately two months. 33 FMSHRC at 2437-38; Tr. 81, 86-88. Like the Judge, we reject
Mach’s contention that, because an MSHA inspector had previously traveled through the
regulator at issue, Mach’s negligence should be mitigated. 33 FMSHRC at 2437-38.
We are not persuaded by Mach’s assertion that the negligence level should be reduced
based on Webb’s mistaken good faith belief that the regulator could be reduced to less than 48
inches in the primary escapeway, if the narrowed regulator passed a stretcher test.4 As the Judge
stated, Webb must exercise a high standard of care because of his supervisory role, and therefore
Webb’s testimony that he was not aware of the width requirements provided only “slight
mitigation.” Id. at 2438. The Commission has held that supervisors “[can]‘not close their eyes
to violations, and then assert lack of responsibility for those violations because of self-induced
ignorance.’” Douglas R. Rushford Trucking, 23 FMSHRC 790, 793 (Aug. 2001) (citation
omitted). Accordingly, in Prabhu Deshetty, 16 FMSHRC 1046, 1051, 1053 (May 1994), the
Commission affirmed a high negligence determination despite the manager’s claim that he was
not aware of whether the cited conditions were prohibited under the law. See also Rushford
Trucking, 23 FMSHRC at 793 (adhering to the general principle that “ignorance of the law is no
defense.”)
In sum, we affirm the Judge’s relatively high negligence determination as supported by
substantial evidence in the record.

30 C.F.R. § 75.380(d)(4)(iii) provides that an alternate escapeway may be less than
four feet wide if a “stretcher test” is met. The Judge noted that a successful stretcher test was
held by MSHA in an alternate escapeway that had been narrowed to 24 inches. 33 FMSHRC at
2435 n.11. However, this stretcher test provision does not apply to the primary escapeway at
issue here.
4

36 FMSHRC Page 1527

III.
Conclusion
For the foregoing reasons, we affirm in result the Judge’s determination that the
escapeway violation was not S&S and affirm the Judge’s finding of relatively high negligence.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman
/s/ Michael G. Young
Michael G. Young, Commissioner
/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner
/s/ William I. Althen
William I. Althen, Commissioner

36 FMSHRC Page 1528

Commissioner Cohen, concurring:
I join my colleagues in affirming the Judge’s determination that Mach Mining’s violation
of the safety standard in 30 C.F.R. § 75.380(d)(4)(ii) was the result of relatively high negligence,
and also the conclusion that the violation was not significant and substantial (“S&S”). I write
separately to point out certain fundamental errors in the Judge’s application of the Mathies
criteria to his analysis of the S&S issues in this case.
The S&S terminology is taken from section 104(d)(1) of the Mine Act, 30 U.S.C.
§ 814(d)(1),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
by the violation 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 set forth a four-step test
for the analysis of whether a violation is S&S:
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 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir.
1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria).

1

Section 104(d)(1) provides, in pertinent part,
If, upon any inspection of a coal or other mine, an authorized
representative of the Secretary finds that there has been a violation
of any mandatory health or safety standard, and if he also finds
that, while the conditions created by such violation do not cause
imminent danger, such violation is of such nature as could
significantly and substantially contribute to the cause and effect of
a coal or other mine safety or health hazard, . . . he shall include
such finding in any citation given to the operator under this Act.

30 U.S.C. § 814(d)(1) (emphasis added).

36 FMSHRC Page 1529

In the present case, the Judge concluded that the Secretary had proved the first two
Mathies elements, but had failed to prove the third element. 33 FMSHRC 2428, 2435-36 (Oct.
2011) (ALJ). In this regard, the Judge stated that the evidence did not establish “the reasonable
likelihood of an injury-producing event”. Id. The Judge’s analysis is erroneous under Mathies
in two important respects.
First, the Judge failed to define or articulate the discrete safety hazard which is necessary
for analysis under both steps two and three of Mathies.2 The description of S&S in section
104(d)(1) of the Mine Act is centered on a “mine safety or health hazard”. Our cases illustrate
that a Judge is required to articulate a discrete safety hazard in order to determine whether the
violation has contributed to it under step two and whether it is reasonably likely to result in an
injury under step three.3 See, e.g., Black Beauty, 34 FMSHRC at 1741; Consolidation Coal Co.,
35 FMSHRC 2326, 2328, 2333, 2335-36, 2338, 2345 (Aug. 2013) (noting, with respect to five
separate violations, how the judge described the discrete safety hazard and approving the Judge’s
articulation of the hazard). The failure of a judge to clearly articulate the discrete safety hazard
in an S&S case impedes the Commission’s ability to perform its review function under section
113(d)(2)(C) of the Mine Act, 30 U.S.C. § 823(d)(2)(C).
Second, the Judge’s analysis under step three of Mathies was flawed. In concluding that
the evidence did not show a reasonable likelihood of an injury producing event, the Judge relied
on two separate lines of testimony – (1) the absence of any obstacles to walking, the fact that the
lifeline was in good shape, and the fact that it was not necessary to raise one’s foot in order to go
from the surface of the overcast through the regulator, and (2) the MSHA inspector’s testimony
that an emergency was not likely to occur as of the time of the inspection, and that “he did not
indicate the specific events or conditions that would be reasonably likely to occur with the
continuance of normal mining operations that would make an injury producing emergency
evacuation reasonably likely to occur.” 33 FMSHRC at 2435. The Judge’s reliance on the
absence of conditions likely to create an emergency was in error. The mandatory safety standard
at issue, 30 C.F.R. § 75.380(d)(4)(ii), sets forth requirements for escapeways in bituminous and
lignite coal mines. Because an evacuation standard was at issue, the Mathies test does not
require consideration of whether an emergency was likely to occur. See Cumberland Coal, 33
FMSHRC at 2366-67 (“[t]he Commission has never required the establishment of the reasonable
likelihood of a fire, explosion, or other emergency event when considering whether violations of
Regarding the first element of Mathies, the Judge correctly found that Mach Mining
violated the safety standard when it narrowed the escapeway through the regulator from 48
inches to 26 inches. 33 FMSHRC at 2433.
2

The Commission has described a safety hazard (i.e., the “measure of danger to safety”,
as stated in Mathies) as “the dangerous situation that the mandatory safety standard anticipates.”
Black Beauty Coal Co., 34 FMSHRC 1733, 1741 (Aug. 2012) (citing Cumberland Coal Res.,
LP, 33 FMSHRC 2357, 2366 (Oct. 2011), aff’d 717 F.3d 1020 (D.C. Cir. 2013); Musser
Engineering, Inc., and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010).
3

36 FMSHRC Page 1530

evacuation standards are S&S”). As succinctly stated by the Court of Appeals for the D.C.
Circuit in affirming Cumberland Coal, “the likelihood of an emergency will usually have
nothing to do with the violation of the emergency safety standard.” 717 F.3d at 1027.
Although the Judge erred in his S&S analysis, I would affirm his ultimate conclusion that
this violation was not S&S. The safety standard in 30 C.F.R. § 75.380(d)(4)(ii) states that
“where the route of travel passes through doors or other permanent ventilation controls, the
escapeway shall be at least 4 feet wide to enable miners to escape quickly in an emergency.”
The regulator involved in this case is a permanent ventilation control within the meaning of the
regulation. As stated by MSHA inspector Bobby Jones, the discrete safety hazard under step
two of Mathies was that “the narrow opening through the regulator would impede miners
escaping rapidly.” Tr. 28.
I conclude that the record does not contain substantial evidence to support a conclusion
that the violation at issue would contribute to a failure of miners to escape quickly in an
emergency. The inspector testified that he believed that in an emergency if an injured miner had
to be transported out of the mine on a stretcher, miners carrying the stretcher would be delayed
or injured trying to navigate the stretcher and the injured miner through the narrowed escapeway.
Tr. 32, 35-36, 48. However, the inspector failed to describe with any detail how the narrowed
escapeway would functionally impede the passage of miners with a stretcher. In particular, the
inspector was unaware of the width of the stretchers used by Mach Mining, or how their width
compared with the width of the escapeway as it passed through the regulator. Tr. 70-71.
Furthermore, the inspector testified that he did not observe any obstructions in the walkways on
either side of the overcast, on the stairs, or on the overcast itself, and that the lifeline was in good
shape. Tr. 64-65.
Moreover, as the Judge noted, Anthony Webb, the president of Mach Mining, testified
that the mine had previously conducted testing at the request of and in the presence of MSHA
inspectors, and had determined that miners carrying a stretcher were able to navigate through a
24-inch escapeway without difficultly. 33 FMSHRC at 2435 n.11; Tr. 98-99. He explained that
the stretchers used by the operator are constructed with handles or hand holds at either end of the
stretcher. This enables the stretcher carriers to walk in front and behind the stretcher rather than
beside it. 33 FMSHRC at 2435 n.11; Tr. 98-99. This testimony was uncontradicted.
Because the record lacks any evidence that the violation of regulator width would
contribute to a hazard of miners being unable to escape quickly in an emergency, the Secretary
failed to sustain her burden of proof under step two of Mathies. In Cumberland Coal, the
Commission noted that not every violation of an evacuation standard would be S&S, even
though such violations are viewed in the context of an emergency. 33 FMSHRC at 2369. We
observed that if violations of an evacuation standard are “relatively minor in nature and scope, a
fact-finder may well not [find] that the violations contributed to the hazard of miners being
delayed in escaping from the mine in an emergency”. Id. at 2368. This is such a case.

36 FMSHRC Page 1531

The Judge’s conclusory statement that the second element of the Mathies test was
satisfied lacks evidentiary support. Therefore, the violation was not significant and substantial.

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

Distribution:
Christopher D. Pence, Esq.
Allen Guthrie & Thomas, PLLC
500 Lee Street, East, Suite 800
P.O. Box 3394
Charleston, WV 25333-3394
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Administrative Law Judges Avram Weisberger (Retired)
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004

36 FMSHRC Page 1532

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

June 13, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
TWENTYMILE COAL COMPANY

:
:
:
:
:
:
:

Docket Nos. WEST 2008-788-R
WEST 2008-1093-R
WEST 2008-1094-R
WEST 2009-333
WEST 2009-579
WEST 2009-1174

BEFORE: Jordan, Chairman; Young, Cohen, and Nakamura, Commissioners1
DECISION
BY: Jordan, Chairman; Young, Cohen, and Nakamura, Commissioners
These consolidated proceedings arise under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). The case originally involved a
number of citations and orders issued by the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) to Twentymile Coal Company at its Foidel Creek Mine in Colorado.
32 FMSHRC 1431, 1432 (Oct. 2010) (ALJ). Remaining at issue before the Commission are two
orders that alleged accumulations of coal dust in violation of 30 C.F.R. § 75.400,2 as well as a
citation issued in connection with one of the orders, alleging an inadequate preshift examination
in violation of 30 C.F.R. § 75.360(a)(1). 32 FMSHRC at 1439-48, 1451-56, 1448-51. The
specific issues presented on appeal are whether the Judge properly found that all three violations
were significant and substantial (“S&S”) violations of the Mine Act, and that the violations
underlying the two orders were attributable to Twentymile’s unwarrantable failures to comply
with the standard.

1

Commissioner William I. Althen is recused in this matter.

Section 75.400 provides: “Coal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be
permitted to accumulate in active workings, or on diesel-powered and electric equipment
therein.” While Twentymile did not contest the existence of those violations, it did contest the
special findings in the orders and the Secretary of Labor’s proposed penalties.
2

36 FMSHRC Page 1533

For the reasons that follow, we affirm the Judge’s two unwarrantable failure
determinations and one of his S&S findings, and vacate and remand his other two S&S findings.
I.
Order No. 7622426
A.

Factual and Procedural Background
1.

MSHA’s Inspection

On March 12, 2008, MSHA Inspector Art Gore visited the Foidel Creek Mine for a
methane spot inspection of its longwall area there. 32 FMSHRC at 1451-52. The mine is
considered to be “gassy,” in that it liberates large quantities of methane.3 Id. at 1444.
Consequently, the mine is usually on a 10-day spot inspection cycle. Id. at 1444 & n.3.
While he found no methane problems that day, Inspector Gore observed that the longwall
tailgate was black with dark float coal dust.4 Gore found that the conditions extended 1700 feet
outby the No. 1 Entry return, with heavy coal dust concentrations on the floor, ribs, and the
“cans” used for supplemental roof support,5 as well as into the crosscuts. He also determined
that the trickle duster in the tailgate, which should have been blowing rock dust into the air
current so that it would mix with any coal dust, was not working at that time. 32 FMSHRC at
1452, 1454 n.7; Tr. 284-87. According to Gore, the float coal dust he observed was heavy and
triple the amount necessary to establish a violation. 32 FMSHRC at 1452.
In order to determine whether a withdrawal order under section 104(d)(2) of the Mine
Act should issue, Inspector Gore reviewed weekly examination records, preshift examination
Section 103(i) of the Act provides in pertinent part that a coal or other mine liberating
in excess of one million cubic feet of methane or other explosive gases during a 24 hour period is
subject to a minimum of one spot inspection every five working days, and a mine that liberates
in excess of five hundred thousand cubic feet of methane or explosive gases during a 24 hour
period is subject to a spot inspection every 10 working days at irregular intervals. 30 U.S.C. §
813(i).
3

“Float coal dust” is defined as “coal dust consisting of particles of coal that can pass a
No. 200 sieve.” 30 C.F.R. § 75.400-1(b). This is in contrast with ordinary “coal dust,” which is
defined as “particles of coal that can pass a No. 20 sieve.” 30 C.F.R. § 75.400-1(a); Tr. 205-06.
Thus, float coal dust is much finer than ordinary coal dust. Inspector Grosely testified that when
he scraped the float coal dust into a pile and touched it, “it flowed like water, a very fluid
material, a very fine-grain material.” Tr. 127. For this reason, it is more explosive than ordinary
coal dust, and hence more dangerous. Tr. 147-48, 201.
4

5

The “cans” are steel tubes, filled with aerated concrete. Tr. 285.

36 FMSHRC Page 1534

records, and the “dates, times and initials” he found on the various cards or boards in that area of
the mine indicating that examinations had been done. Id.; Tr. 289-90, 296-97. The weekly
examination book stated that, as of a shift on March 8, 2008, the entire tailgate area for the No. 1
Entry needed rock dusting. Tr. 291. However, Gore noted that the corrective actions taken in
the ensuing three days did not include the area he found to be black with coal dust. 32 FMSHRC
at 1452; Tr. 291-92, 294-95; Gov’t Ex. 21. Because Twentymile had continued mining between
March 8 and 12 and the trickle duster was not operating at the time of his inspection, Gore issued
an order alleging that the coal dust accumulation violated section 75.400, was S&S, and was
attributable to Twentymile’s unwarrantable failure to comply. 32 FMSHRC at 1451-53; Tr. 29699, 301. The Secretary later proposed a penalty of $70,000. 32 FMSHRC at 1452.
2.

The Judge’s Decision

The Judge concluded that the Secretary had established that the violation was S&S. Id.
at 1454-55. He found that float coal dust is highly explosive and at its most dangerous when
suspended in the mine atmosphere. The conditions cited therefore posed a discrete safety hazard
contributed to by the conceded violation of section 75.400, particularly given the amount and
concentration of the dust that had accumulated. Id. at 1443-44 (relying on his findings in the
other accumulations violation on review here); 1454. He further found that it was reasonably
likely that a significant methane ignition in the longwall face would cause the float coal dust in
the tailgate to go into suspension. Id. at 1454. He found a reasonable likelihood that such a
methane ignition would occur during the life of the mine, and that the hazard contributed to by
the violation would result in a serious injury or fatality. Id. at 1454-55.
The Judge also concluded that the Secretary had established that the violation of section
75.400 was attributable to Twentymile’s unwarrantable failure, in that it was the result of a
serious lack of reasonable care and aggravated conduct on the part of the operator. Id. at 145556. The Judge’s conclusion was based on his findings that the violation was serious, that it had
existed over a large area of the tailgate over the course of several shifts, and that Twentymile
management was aware of the accumulations and had been put on notice that greater efforts to
comply with section 75.400 were necessary. Id. at 1456. Consequently, the Judge assessed a
penalty of $50,000. Id.
B.

Disposition
1.

Significant and Substantial

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

36 FMSHRC Page 1535

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.
Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir.
1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria). 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. U.S. Steel Mining
Co.,
6 FMSHRC 1834, 1836 (Aug. 1984). In evaluating that contribution, it is assumed that
normal mining operations will continue. See U.S. Steel Mining Co., 6 FMSHRC 1573, 1574-75
(July 1984); see also U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985).
Twentymile contends that the record does not support the conclusion that there was a
reasonable likelihood of a fire or methane explosion spreading to the tailgate, and thus
substantial evidence does not support the conclusion that the third element of the Mathies test
was satisfied in this instance. Twentymile argues that the Judge’s reliance on methane ignitions
occurring at the face at some point in the future is misplaced, both because there is no history of
such ignitions at the mine in question, and because there is no evidence that the accumulation of
coal dust would continue to exist for the life of the mine. T. Br. at 30-31.
Our review of the record discloses that substantial evidence supports the Judge’s
conclusions regarding the S&S nature of the accumulations violation at the Twentymile longwall
tailgate.6 Contrary to Twentymile’s position, the record supports the Judge’s conclusions that,
notwithstanding the mine’s history, there was ample reason to fear the occurrence of a methane
ignition at the face. As Inspector Gore detailed in his analysis of the S&S nature of the violation,
the mine is considered to be “gassy.” Tr. 299. The Judge’s finding that a sudden release of
methane in such a mine can occur without warning is consistent with Commission case law.
See U.S. Steel Mining, 7 FMSHRC at 1130.

When reviewing an administrative law Judge’s factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as a reasonable
mind might accept as adequate to support [the Judge’s] conclusion.’” Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)).
6

36 FMSHRC Page 1536

Gore testified about the methane ignition sources that existed at the face and the
likelihood of such an ignition. Tr. 299. In particular, he discussed the sparks produced by the
operation of the longwall shearer and the shearer possibly cutting the quartz present in the
mine’s roof, the fire from the torches used by miners during maintenance shifts, and the sparking
that could occur from roof bolts breaking during a roof fall. Tr. 305, 318. The Judge
specifically credited Gore on this issue (32 FMSHRC at 1454), and nothing in the record gives
us reason to overturn the Judge’s credibility determination.7
We can likewise discern no basis to overturn the Judge’s crediting of Gore over
Twentymile’s witnesses on the issue of the concentration of the rock dust. As it did below,
Twentymile continues to argue that rock dust had mixed with the float coal dust in sufficient
quantities to prevent an explosion. T. Br. at 30-31. In so doing, it ignores the Judge’s findings
that the coal dust accumulations were “heavy” and that rock dusting had not been effective in the
area covered by the order. 32 FMSHRC at 1454.8 In addition, Inspector Gore testified that the
coal dust had accumulated in the cited area to a thickness that was “triple” that which he
considered to constitute a violation of section 75.400. Tr. 286-87.
Finally, we reject the notion that the Judge’s analysis is only reliable if the cited
accumulations remain unaddressed until such time that a methane ignition actually occurs. In
cases involving violations which may contribute to the hazard of methane explosions or
ignitions, the Commission has held that the likelihood of an injury resulting from the hazard only
depends on whether a “confluence of factors” exists that could trigger an explosion or ignition.
Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988). To the extent that Twentymile argues that a
coal dust accumulation can only be S&S if it is shown that the specific cited condition will
continue to exist until a methane ignition actually occurs, we do not read our precedent to erect
such a high bar for the violation of section 75.400 to be S&S. It would be particularly
inappropriate to do so in this case, where the mine may have allowed the conditions to exist for
as many as eight production shifts, with the longwall cutting coal at the face. 32 FMSHRC at
1454; Tr. 291-92. Accordingly, Twentymile’s argument is without merit.9
The Commission has recognized that a Judge’s credibility determinations are entitled to
great weight and may not be overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC
1537, 1541 (Sept. 1992); Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981).
7

Twentymile also argues that the Judge erred in failing to take into account the humidity
in the tailgate area. Its witnesses’ testimony was that in such an environment, dust would not
travel as far as in a less humid environment. Tr. 330. However, that analysis focuses on the dust
produced during the mining process and not whether the humidity would prevent coal dust from
being suspended by a methane ignition. Consequently, we are not persuaded that it was error for
the Judge to do no more than acknowledge the humid conditions, which he did. See 32
FMSHRC at 1454.
8

9

As discussed infra, the mine in question had a history of accumulation violations, and
(continued...)

36 FMSHRC Page 1537

2.

Unwarrantable Failure

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.
§ 814(d), and refers to more serious conduct by an operator in connection with a violation. In
Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary negligence.
Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v.
MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure test).
The Commission has recognized that whether conduct is “aggravated” in the context of
unwarrantable failure is determined by considering the facts and circumstances of each case to
determine if any aggravating or mitigating circumstances exist. Whether the conduct is
“aggravated” in the context of unwarrantable failure is determined by looking at all the facts and
circumstances of each case, including (1) the extent of the violative condition, (2) the length of
time it has existed, (3) whether the violation posed a high risk of danger, (4) whether the
violation was obvious, (5) the operator’s knowledge of the existence of the violation, (6) the
operator’s efforts in abating the violative condition, and (7) whether the operator had been
placed on notice that greater efforts were necessary for compliance. Consolidation Coal Co.,
35 FMSHRC 2326, 2330 (Aug. 2013); Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb.
2013); IO Coal Co., 31 FMSHRC 1346, 1351-57 (Dec. 2009); Cyprus Emerald Res. Corp.,
20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999).
Twentymile takes issue with three of the factors the Judge relied upon in concluding that
the operator’s conduct had been aggravated in this instance. First, it continues to disagree with
Inspector Gore as to the gravity of violation, citing the testimony of its witnesses who did not
view the accumulations in the cited area to constitute a hazard. However, the Judge found Gore
to be much more persuasive than the Twentymile witnesses regarding how heavy the coal dust
was and the extent, if any, to which it had been diluted by rock dust. 32 FMSHRC at 1455.
Moreover, we have affirmed the Judge’s S&S finding. Consequently, we remain unconvinced
that there are grounds to disturb the Judge’s finding that the violation was serious.
Twentymile also maintains that the Judge erred in finding that it had been put on notice
that greater efforts on its part to comply with section 75.400 were necessary. T. Br. at 23-26, 3334. We disagree and find that the record and Commission precedent amply supports the Judge’s

(...continued)
there was evidence of inconsistent notations of the need to rock dust coal dust accumulations.
Moreover, Twentymile chose to start spreading rock dust on the tailgate area accumulations
outby, when the heaviest accumulations were inby. Tr. 301. Given that, we are not persuaded
that the cited accumulations should not be considered S&S because Twentymile would have
addressed them before a methane ignition could occur.
9

36 FMSHRC Page 1538

conclusion. The Secretary relied on previous citations to the operator for violations of the
standard. While the evidence does not specifically identify which of those citations prior to
March 2008 may have been for float coal dust accumulations, the Commission has rejected the
notion that cited accumulations must be of the same material as in previous instances to be
relevant to the question of whether the operator had been put on notice that greater compliance
efforts were necessary. See Enlow Fork Mining Co., 19 FMSHRC 5, 11-12 (Jan. 1997).
Moreover, Inspector Gore testified that he had had multiple prior discussions with Twentymile
management about accumulations at this mine. Tr. 302.
Moreover, float coal dust is considered so dangerous that it is specifically mentioned in
section 75.400 as a material that an operator must not permit to accumulate. We do not see why
the previous citations under the standard should be discounted in the consideration of a
subsequent serious violation.10 The operator could have drawn a distinction demonstrating an
anomaly but failed to rebut the Secretary’s contention that the prior violations did, in fact, put
the operator on notice.
Finally, we reject Twentymile’s contention that the Judge’s finding of aggravated
conduct is erroneous in light of the evidence that the operator was preparing to rock dust the
cited area. T. Br. at 33. The Judge discussed the operator’s rock dusting efforts, outby the cited
area, that were undertaken after the March 8 notation in the examination book regarding the need
for rock dusting. 32 FMSHRC at 1455. He also credited the testimony of the operator’s
witnesses that before rock dust could be applied by hand in the cited area, Twentymile first had
to install a second row of cans as supplemental roof support along the center of the entry (Tr.
351-54), and that preparations for that project were underway. Id. However, the Judge rejected
the contention that this evidence outweighed the other evidence of aggravated conduct. The
evidence of aggravated conduct included the previously discussed seriousness of the violation;
the geographic extent of the accumulated coal dust; the fact that the condition had been in
existence for at least several shifts, if not longer; the fact that management had been aware of it
since at least March 8; and the fact that management had been put on notice that greater efforts
to comply with the standard were necessary.
In deciding whether an unwarrantable failure has been established, a Judge may
determine that some factors are less important than other factors under the circumstances.
IO Coal Co., 31 FMSHRC at 1351. Because Twentymile does not dispute the Judge’s findings
on a number of the other unwarrantable failure factors, and substantial evidence supports those
findings as well as the findings which Twentymile does dispute, no basis exists to second guess

Our decision in Enlow Fork also disposes of Twentymile’s contention that 45
accumulation citations over the course of the 15 months prior to May 2008 (Tr. 155) did not
provide a sufficient basis to put the operator on notice. In that case, the Commission found that
60 accumulation citations in over two years put the operator on notice that it needed to make a
greater effort to comply with section 75.400. 19 FMSHRC at 16-17.
10

36 FMSHRC Page 1539

the Judge’s ultimate conclusion that aggravated conduct on the part of the operator had been
established.
II.
Order No. 6686312 and Citation No. 6686313
A.

Factual and Procedural Background
1.

MSHA’s Inspection

The order and citation were each issued on May 6, 2008, by MSHA Inspector Barry
Grosely. 32 FMSHRC at 1439, 1448. His review of the mine’s preshift examination books at
the outset of his inspection disclosed entries from the operator regarding accumulations,
including entries from earlier in the week with regard to the No. 3 Entry, the mine’s main
conveyor belt entry. Id. at 1439, 1446; Gov’t Ex. 13.
The inspector testified that coal was being produced when he arrived at the mine that
morning, but that there had been minimal production on the previous shift. Id. at 1439; Tr. 115,
140-41. His physical inspection of the mine began on the surface, in the transfer building and
the drive building, which resulted in the issuance of three citations for accumulations of float
coal dust and coal fines. 32 FMSHRC at 1439. From there, the inspector traveled into the mine
through the portal for the belt entry. Id. Grosely testified that he immediately noticed
accumulations of float coal dust and, as he traveled further inby, the accumulations became
“more pronounced.” Id.; Tr. 122-23. He estimated that the coal dust had accumulated to a depth
of 1/16th of an inch in some locations, and he described the dust as very fine, and that atop
electrical installations it “flowed like water” when touched. 32 FMSHRC at 1440; Tr. 126-27,
134-35.
The inspector determined that the accumulations extended some 3,400 feet, to Crosscut
34, and were heavier in the crosscuts. 32 FMSHRC at 1439. Grosely explained that with the
entry being on intake air at a rate of 350 feet per minute, most of the rock dust that was being
injected into the entry traveled down the belt line instead of into the crosscuts. Id.
Consequently, Grosely issued Order No. 6686312, alleging an S&S violation of section
75.400 that was attributable to Twentymile’s unwarrantable failure. Id.; Gov’t Ex.10. The order
describes the accumulations as present over the ribs, roof, floor, belt hardware, pipes and hoses,
drive motors, belt structures, and electrical control boxes in the belt entry. 32 FMSHRC at 1439,
Gov’t Ex. 10. The violation was subsequently abated by the application of three tankers of rock
dust, over the course of two shifts, by three to five miners. Tr. 157-59, 239. The Secretary later
proposed a penalty of $50,700 for the violation. 32 FMSHRC at 1439.
Grosely also issued Citation No. 6686313, alleging that the accumulations must have
been present during the most recent preshift examination that included the belt entry, which was

36 FMSHRC Page 1540

conducted between 2:00 and 3:00 that morning, but there was nothing noted about accumulations
in the preshift examiner’s book for that time period. 32 FMSHRC at 1446, 1448; Gov’t Ex. 11.
The latter citation was also designated S&S, but not unwarrantable.11
2.

The Judge’s Decision

Twentymile did not contest MSHA’s allegation that the accumulations constituted a
violation of section 75.400. 32 FMSHRC at 1441. The Judge found that the accumulations of
float coal dust constituted a hazard to miners, particularly because the operator had failed to
apply sufficient rock dust to render the coal dust safe, and because the mine liberates extensive
quantities of methane. Id. at 1443-44, 1450. In light of the evidence that the coal dust had been
deposited over a number of shifts and that the violation was obvious, the Judge concluded that a
reasonably prudent miner would have noted the hazardous accumulation in the preshift
examination book and recommended rock dusting in the area. Id. at 1442, 1450. Because that
did not occur as part of the preshift examination that most recently preceded the MSHA
inspection, the Judge upheld the citation alleging that the preshift exam was inadequate under
section 75.360(a)(1). Id. at 1450.
As to the issue of whether the section 75.400 accumulations violation was S&S, the
Judge rejected the Secretary’s position that the uncontested accumulations violation was S&S
because the rate of frequency of failure of rollers on the belt, as well as the areas of the belt
where the inspector observed the belt rubbing against belt hangers, had the potential to result in
the generation of heat that would ignite the coal dust. Id. at 1443. Taking into account the
“confluence of factors” present, the Judge was not persuaded that in this instance the belt, or its
constituent parts, such as rollers or electrical components, would be a source that would ignite
the coal dust in the area. Id. The Judge also found that there was no methane detected in the
area of the belt, and that it was unlikely that methane would be found in that area of the mine.
Id. at 1442-43.
Nevertheless, the Judge concluded that the accumulations violation was S&S. The
Judge focused on the possibility that the float coal dust would be put in suspension in the mine
atmosphere as a result of a methane explosion at the face and the blast force traveling to the area
of accumulations. Id. at 1443-44. The Judge was also concerned that such force could so
severely disrupt the mine’s ventilation system as to cause air to stop flowing through entries,
which would result in the dust remaining in suspension, increasing its volatility. In that event,
the dust could provide fuel for a methane explosion occurring at the face to continue down the
entries for a considerable distance beyond the presence of the methane. Id. at 1444.
Additionally, the Judge noted that if the float coal dust is placed in suspension, the ignition
sources in the area of the suspended dust could ignite it independent of a methane explosion

The citation was originally an order for which the Secretary proposed a penalty of
$50,700, but at the hearing he modified it to a citation under 30 U.S.C. § 814(a), alleging high
negligence. 32 FMSHRC at 1448-49.
11

36 FMSHRC Page 1541

further inby. Id. at 1444, 1445. Because the Judge found that it is reasonably likely that there
will be at least one serious methane ignition or explosion over the life of a gassy coal mine such
as the Foidel Creek Mine, he concluded that the presence of the accumulated float coal dust
significantly increased the hazard to miners and thus that the violation of section 75.400 was
S&S. Id.
With regard to whether the preshift examination violation was also S&S, the Judge found
that the examiner contributed to a serious safety hazard when he failed to perform an adequate
examination. Id. at 1450. The Judge concluded that this failure prevented a foreman from
knowing of the need to rock dust the No. 3 belt entry, and the hazard contributed to by the
violation would result in an accident in which there would be serious injury. Id.
The Judge also concluded that the accumulations violation was attributable to
Twentymile’s unwarrantable failure, in that the accumulations resulted from aggravated conduct
and a serious lack of reasonable care on the part of the operator. Id. at 1445-48. The Judge did
so on the basis of his findings that the accumulations of float coal dust were obvious, extensive,
and hazardous. Id at 1447. He also found that the accumulations had occurred over the course
of several preceding shifts, yet during those shifts many of the preshift examiners did not
consider the accumulations of float coal dust to be hazardous and did not even note the condition
in the examination book. Id. Finally, the Judge recognized that Twentymile had been cited
about 45 times in the preceding 15 months by MSHA for accumulation violations, and, in
October 2006, had been specifically advised by MSHA that it needed to make greater efforts to
combat float coal dust accumulations in another of its belt entries. Id.
For the accumulations violation, the Judge found the negligence to be high and assessed a
penalty of $50,000. Id. at 1448. For the preshift violation, the Judge concluded that the
negligence had not been shown to have been high, and assessed a penalty of $5,000. Id. at 1451.
On appeal, Twentymile challenges the Judge’s two S&S findings, his unwarrantable failure
finding with regard to the accumulations violation, and the penalties accordingly assessed, but
does not challenge his finding that the preshift examination conducted was inadequate.
B.

Disposition
1.

Whether the Violations were Significant and Substantial

As discussed with respect to the earlier accumulations violation, the conclusion of the
reasonable likelihood of a methane ignition at the face during continued normal mining
operations is supported by the record in this case and by Commission precedent. However,
unlike the other accumulations violation, the accumulations at issue here were not near the face,
but a substantial distance away, along the belt as it approached a portal to the mine. The Judge
nevertheless concluded that the force of methane ignition at the face could be sufficient to put
the accumulations in question into suspension, increasing the volatility of the dust and possibly
serving to propagate the initial methane explosion further. He further found that this could

36 FMSHRC Page 1542

increase the likelihood that the dust would be ignited by local ignition sources because the dust
would cover a much greater area of the mine when in suspension. 32 FMSHRC at 1444.
While we agree with the Judge that float coal dust is highly dangerous when put into
suspension, we are constrained by the record in this case regarding how the cited accumulations
could have been put into suspension. The Judge’s conclusion is based on his finding that forces
unleashed by a methane explosion at the face can travel “long distance[s]” down mine entries,
“for a considerable distance beyond the presence of the methane.” Id. Nowhere in the Judge’s
decision, however, does he address how far the cited accumulations were from the face.
Testimony at the hearing was that the mine’s longwall panels alone were between 10,000 and
20,000 feet in length. Tr. 346. The mine had a belt system that Grosely estimated totaled at
least 12 miles in length, while the operator’s witness stated it was 8-1/2 miles. Tr. 187, 224. At
oral argument before us, the Secretary’s counsel estimated the distance between the longwall and
the accumulations as seven miles. Oral Arg. Tr. 45-46.
There is no record evidence that explosive forces would travel so far in the mine in
question. Both Inspector Grosely, with respect to the instant violation, and Inspector Gore, with
regard to the earlier violation, testified repeatedly regarding the danger posed by coal dust once
it is put into suspension. Tr. 201-02, 204, 299, 307-08, 309. No testimony or other evidence
was presented, however, on whether accumulations along the belt, miles away from the face,
could be put into suspension by a methane explosion or ignition at the face. Because S&S
determinations are based on the particular facts surrounding a violation, we cannot find that
substantial evidence supports the Judge’s conclusion that the accumulations along the belt were
an S&S violation of section 75.400 due to the risk of a methane explosion at the face.
However, the possibility remains that the violation could be characterized as S&S.
Grosely testified that local forces including air velocity could put the float coal dust into
suspension. Tr. 201. Based on the operator’s preshift reports, he cited that velocity as
approximately 350 feet per minute from the portal into the mine along the belt, and concluded
that this velocity was sufficient to liberate the float coal dust as coal moved along the belt. Tr.
127-28, 200-01. He further identified another source of liberated float coal dust as that fine
material which returns into the mine on the bottom side of the belt when scrapers designed to
clean the belt outside the mine fail to entirely do so. Tr. 128. He testified that, given the speed
at which the belt at issue moves – 800 to 900 feet per minute – such material would tend to dry
and fall off the belt, thus further contributing to the accumulations. Tr. 128-29.
It has long been recognized that a large expanse of float coal dust accumulations, such as
in the instant case, can lead to the dust being put into suspension from normal mining operations.
In Freeman Coal Mining Co. v. Interior Bd. of Mine Ops. Appeals, 504 F.2d 741, 746-47 (7th
Cir. 1974), the court upheld a decision of the Commission’s predecessor, the Interior Board of
Mine Operations Appeals (“Board”), that float coal dust accumulations of approximately 7,200
feet along a belt in a gassy mine constituted an imminent danger that necessitated the issuance of

36 FMSHRC Page 1543

a withdrawal order.12 In doing so, the court found substantial evidence to support the Board’s
decision that the accumulations constituted an imminent danger, given that the dust is so
lightweight that it can be easily disturbed and suspended into the air during the course of normal
mining operations. See Freeman Coal Mining Corp., 80 Int. Dec. 610, 615, 2 IBMA 197, 211
(1973). The court was persuaded that because coal was being moved by the belt, there was an
increased likelihood that coal dust would be kicked up into the air where it could be ignited by
local ignition sources. 504 F.2d at 746-47 & n.13.
In light of the decisions in Freeman, we are remanding this case to the Judge to review
Grosely’s testimony as well as the remainder of the record and determine whether there is
sufficient evidence to establish that local forces could have put the dust accumulation in the belt
entry and crosscuts into suspension in sufficient amounts to risk a local ignition or explosion. If
so, the Judge will then need to address whether there was sufficient evidence of local sources
that could have ignited the suspended dust.13
The Secretary would have us avoid remand and reverse the Judge’s conclusion that there
was insufficient evidence that the belt or its components could ignite the dust where it had
accumulated.14 The Judge, however, was not persuaded that the ignition sources Inspector
Grosely discussed were either sufficiently intense or located close enough to sufficient quantities
of the dust to result in a fire that would be hazardous to miners. 32 FMSHRC at 1443 (“[t]here is
no evidence that piles of loose coal and coal fines had accumulated under the belt, or under or
near the rollers such that a localized ignition . . . could start a fire that would spread”). We find
that substantial evidence supports the Judge’s conclusion.
The Secretary further points to Grosely’s testimony regarding the existence of coal dust
clinging to the belt rollers, the fact that 65 such rollers fail and thus need replacing during an
average day at the mine, and that there could be a hot spot on the belt from it rubbing against
Similar to the present case, at the time of the inspection of the Freeman Coal mine,
there was no concentration of methane. Id. at 746 & n.12.
12

In his initial decision, the Judge appeared to determine that there was such evidence.
See 32 FMSHRC at 1444 (“[i]n addition, other ignition sources in the immediate area of the coal
dust can ignite the suspended float coal dust.”), 1445 (“[i]n addition, there were ignition sources
in the area that could independently ignite float coal dust if it were suspended in the mine
atmosphere . . .”). Twentymile contends that this conflicts with the Judge’s finding, discussed
below, that there was insufficient evidence to establish that the belt and its parts could serve as
ignition sources. Remand will permit the Judge to further explain his reasoning regarding the
potential local ignition sources for the coal dust upon it being put into suspension.
13

The Secretary is well within his right to do so, because the prevailing party below may
urge in support of the decision under review even those arguments the Judge considered and
rejected. See, e.g., Sec’y on behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1529
(Aug. 1990).
14

36 FMSHRC Page 1544

metal components. Tr. 130-31, 133, 139, 142-44, 146. The Judge addressed this evidence, but
found that the operator’s program of frequent replacement of rollers, coupled with the fact that
the rollers or a hot spot on the belt would come in contact with only a small amount of dust,
substantially reduced the likelihood of a fire. 32 FMSHRC at 1443. It was within the province
of the Judge to require evidence of a heat source close enough to sufficient quantities of dust as a
prerequisite to concluding that there was a likelihood of a fire from the accumulations. Here, the
Judge appeared to be presented with evidence that the ignition sources would only come into
contact with a minimal amount of dust, and thus would not pose a risk of igniting the cited
accumulations.
In summary, we vacate and remand for further proceedings the Judge’s findings that the
violations contained in Order No. 6686312 and Citation No. 6686313 were S&S. Should he find
the violations to not be S&S on remand, the Judge will need to reassess the penalties for the
order and citation.
2.

Whether the Accumulations Violation Resulted from an Unwarrantable
Failure to Comply

We reject Twentymile’s contention that it was improper for the Judge to consider the role
played by the operator’s preshift examiners in the accumulation of coal dust over such an
undisputedly large area of the belt entry and crosscuts. Twentymile’s argument appears to be
predicated on the belief that there was nothing more than an honest disagreement between those
examiners and MSHA over whether the accumulated coal dust constituted a violation. In
asserting a good faith belief as a defense to an unwarrantable failure charge, however, the
operator must show that the belief was reasonable under the circumstances. IO Coal,
31 FMSHRC at 1357-58. Here, the overwhelming weight of the evidence credited by the Judge
was that the dust had not been diluted by rock dust and had accumulated over an extensive area,
and thus constituted a violation of the specific prohibition in section 75.400 against the
accumulation of float coal dust. 32 FMSHRC at 1445. Indeed, there is evidence that, because of
the way the mine’s ventilation interacted with the operator’s rock dusting methods,15 the coal
dust that had accumulated in the crosscuts was at its greatest depth, and had been there for
weeks. 32 FMSHRC at 1442; Tr. 123, 127, 141. Consequently, the record supports the Judge’s
treatment of the preshift examiners’ actions and opinions in this instance and demonstrates that
the good-faith-belief argument has no merit.16

Inspector Grosely testified that when rock dust is blown down a main course, like the
belt entry in this instance, the air velocity can be so high that the rock dust bypasses the
crosscuts. Tr. 129.
15

Twentymile also argues that it was possible that the dust had accumulated during the
brief time the mine had resumed production since the last preshift examination. Inspector
Grosely rejected the position that such a large amount of dust could accumulate in such a short
(continued...)
16

36 FMSHRC Page 1545

We uphold the judge’s finding that Twentymile had been put on notice that greater
efforts on its part to comply with section 75.400 were necessary. We have already rejected some
of the operator’s arguments in our review of the earlier accumulations violation. In the instance
of this cited accumulation, there was even a greater basis for the Judge to find that the operator
should have been making greater efforts to combat accumulations – because the float coal dust
accumulations order previously discussed had been issued just less than two months earlier.
Moreover, the Judge was persuaded by evidence specific to this accumulations order.
First, Inspector Grosely had issued an unwarrantable failure citation to Twentymile in October
2006 for float coal dust accumulations in the mine’s No. 7 belt entry. 32 FMSHRC at 1447.
Second, that same month MSHA had notified Twentymile and the other mines in that district
that the agency would be focusing its enforcement efforts on belt lines. Id. While Twentymile
argues that such evidence is too remote in time and nonspecific to put it on notice (T. Br. at 23,
26), we disagree, given that the order at issue here cited Twentymile for float dust accumulations
in a belt entry. See Enlow Fork, 19 FMSHRC at 12 (remanding for Judge to address all relevant
evidence of Secretary and operator on issue of notice). Consequently, substantial evidence
supports the Judge’s finding that Twentymile’s conduct was unwarrantable in this instance based
in part on the notice the operator had received regarding the need to address accumulations
problems at the mine.
Accordingly, we affirm the Judge’s determination that the violation of the standard was
attributable to the operator’s unwarrantable failure.17

(...continued)
period of time (Tr. 141), and the Judge credited his testimony. 32 FMSHRC at 1442. Such an
inference is inherently reasonable, and thus provides further support for the Judge’s
determination that the accumulations occurred over a number of shifts. See Mid-Continent
Resources, Inc., 6 FMSHRC 1132, 1138 (May 1984).
16

Because we are remanding the Judge’s S&S determination with respect to the belt
accumulations violation, Commissioner Young would also remand the unwarrantable failure
determination, because that determination relied in part on the Judge’s S&S determination. The
Chairman and the other Commissioners do not agree that this is necessary, however, given that
so many other unwarrantable failure factors are either conceded by Twentymile, such as the
obviousness and extent of the violative condition, or have been upheld upon review.
17

36 FMSHRC Page 1546

III.
Conclusion
For the reasons set forth above, we: (1) affirm the unwarrantable failure determinations
for Order Nos. 7622426 and 6686312 and the S&S determination for Order No. 7622426; and
(2) vacate and remand for further proceedings consistent with this decision the S&S
determinations for Order No. 6686312 and Citation No. 6686313.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

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

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

36 FMSHRC Page 1547

Distribution:
R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1500
401 Liberty Avenue
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Administrative Law Judge Richard W. Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
721 19th Street, Suite 443
Denver, CO 80202-5268

36 FMSHRC Page 1548

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

June 13, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
CONNOLLY-PACIFIC COMPANY

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:
:
:
:
:
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Docket No. WEST 2011-1238
A.C. No. 04-00081-260016

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
DECISION
BY THE COMMISSION:
This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act” or “Act”). The Department of Labor’s Mine Safety and Health
Administration (“MSHA”) issued three citations and a section 107(a) withdrawal order to ConnollyPacific Company (“Connolly”), alleging that it did not properly maintain two sections of highwall
at its mine.
The Administrative Law Judge upheld all three citations and the order. 33 FMSHRC 2270
(Sept. 2011) (ALJ). The Commission granted the operator’s petition for discretionary review. For
the following reasons, we affirm the Judge’s decision.
I.
Factual and Procedural Background
Connolly has owned and operated the Pebbly Beach stone quarry on Catalina Island,
California, since the 1950s. 33 FMSHRC at 2271. The 480 North and South sections of the quarry
consist of a 300-foot highwall. Connolly’s method of mining involves bringing down rock by
blasting and gathering rock brought down by secondary causes, such as rainfall and gravity. Id.; Tr.
I at 33-36, 49. Connolly maintains that the highwall cannot be scaled. Id. at 2271-72; Tr. I at 33,
34, 49, 72, 84-85.1 It is undisputed that Connolly has never used benches or scaling in the 480 North
and South sections of the quarry. Id. at 2274-75; Tr. I at 33, 34, 49, 72, 84. Instead, Connolly uses

1

walls.

Scaling involves removing loose rock threatening to break or fall from the mine roof or

36 FMSHRC Page 1549

a system of spotters and supervisor observations to determine if any changes have occurred on the
highwall and if it is safe to work under it. Id. at 2273-74; Tr. I at 127, 128, 131, 147.
Over the years, Connolly has utilized photographs and management inspections to observe
long-term changes in the highwall and predict the fall of material. Id. at 2275. Photographs of the
highwall show cracks and protruding rock above the working area. Id. at 2272; Tr. I at 170.
The talus pile, an accumulation of rock and material that has slid down the highwall, is the
primary work location for the loader operator, who mucks the talus pile back to the toe of the
highwall. Id. at 2274. The loader operator relies on the spotter to warn him in case of a rock fall.
Id. at 2273-74; Tr. I at 145. The South section had a 70-foot tall talus pile at a 45 degree angle of
repose. Id. at 2278; Tr. I at 21-22, 30-31, 65, 221; Tr. II at 18. The North section had no talus pile
but had evidence of tire tracks leading up to the toe of the highwall. Id.; Tr. I at 23.
On May 24, 2011, MSHA Inspector Chad Hilde issued three section 104(a) citations and a
section 107(a) imminent danger order based on his observation of conditions involving the highwall
sections. 30 U.S.C. §§ 814(a); 817(a); 33 FMSHRC at 2272. Citation No. 8607224 alleged that the
480 South highwall was not properly maintained under 30 C.F.R. § 56.31302 because the loader
operator was working under a 300-foot highwall at a 72-90 degree slope with loose and
unconsolidated materials, and a 70-foot tall talus pile at a 45 degree angle of repose. 33 FMSHRC
at 2278-79. The citation also alleged that the 480 North section had recent activity under
overhanging material with no action taken by the operator to determine or maintain the stability of
the highwall. 33 FMSHRC at 2278-79.

2

Section 56.3130 provides that:
Mining methods shall be used that will maintain wall, bank, and
slope stability in places where persons work or travel in
performing their assigned tasks. When benching is necessary, the
width and height shall be based on the type of equipment used for
cleaning of benches or for scaling of walls, banks, and slopes.

30 C.F.R. § 56.3130.

36 FMSHRC Page 1550

Citation No. 8607225 alleged a violation of 30 C.F.R. § 56.31313 in that the highwall above
the talus pile in the South section, which was approximately 230 feet tall, had loose and
unconsolidated material that had not been sloped to the angle of repose. 33 FMSHRC at 2284-85.
In both the North and South sections, the operator was also cited for failing to correct fall-ofmaterial hazards. Id. at 2285.
Citation No. 8607226 alleged that, in violation of 30 C.F.R. § 56.3200,4 the operator failed
to correct hazardous ground conditions by not posting warning signs or barricading the area to
restrict access. 33 FMSHRC at 2287-88. Although the North section was not currently being
mined, it had no talus pile, and material was cleaned up to the base of the highwall, where there was
evidence of vehicle traffic in the area. Id. at 2287. Connolly did not dispute that it had no warning
signs or barriers, and its safety director testified that the mine had intended to barricade the North
section to keep employees out, but had not had enough time to do so before the inspector’s arrival.
Id. at 2288.
Withdrawal Order No. 8607223 alleged that an imminent danger existed pursuant to section
107(a) of the Act, 30 U.S.C. § 817(a),5 and directed Connolly to cease all mining operations in the
3

Section 56.3131 provides that:
In places where persons work or travel in performing their
assigned tasks, loose or unconsolidated material shall be sloped to
the angle of repose or stripped back for at least 10 feet from the top
of the pit or quarry wall. Other conditions at or near the perimeter
of the pit or quarry wall which create a fall-of-material hazard to
persons shall be corrected.

30 C.F.R. § 56.3131.
4

Section 56.3200 provides that:
Ground conditions that create a hazard to persons shall be taken
down or supported before other work or travel is permitted in the
affected area. Until corrective work is completed, the area shall be
posted with a warning against entry and, when left unattended, a
barrier shall be installed to impede unauthorized entry.

30 C.F.R. § 56.3200.
5

Section 107(a) provides that:
If, upon any inspection or investigation of a coal or other mine
which is subject to this chapter, an authorized representative of the

36 FMSHRC Page 1551

(continued...)

480 South and North sections of the highwall. 33 FMSHRC at 2290-91. Connolly did not abate the
violations but instead moved its operations to another area of the mine. 33 FMSHRC at 2293.
The Judge upheld the three citations and the withdrawal order and found that fatal injury was
reasonably likely, that the violations were significant and substantial (“S&S”),6 and that the
violations resulted from moderate to high negligence. 33 FMSHRC at 2281-84, 2286-87, 2288-90,
2292-93. The Judge raised the penalty amounts from the proposed $555 penalty for two of the three
citations, to $1,000 each for Citation Nos. 8607224 and 8607226, and imposed the $555 penalty
proposed by the Secretary for Citation No. 8607225. Id. at 2293-94.
The Judge determined that although there is no requirement to use benches to protect miners
from falling material, in the absence of benches “the mine must employ some alternative methods
to maintain stability of the wall.” Id. at 2279. The Judge concluded that a rock fall hazard existed
and had not been corrected in both sections of the highwall. She also concluded that although “the
mine understood that there was a hazardous condition,” the presence of tire tracks at the toe of the
North highwall indicated recent operations in the area. Id. at 2286, 2288. She further found that the
inspector did not abuse his discretion in issuing the imminent danger order because it was reasonable
to believe that a fall of rock or debris was imminent, and neither benching nor scaling could be
conducted due to the extreme height of the highwall. Id. at 2291-92.
II.
Disposition
On review, Connolly argues that the Judge’s findings regarding the instability of the highwall
are not supported by substantial evidence. Connolly contends that the rocks only appeared loose and

(...continued)
Secretary finds that an imminent danger exists, such representative
shall determine the extent of the area of such mine throughout
which the danger exists, and issue an order requiring the operator
of such mine to cause all persons, except those referred to in
section 814(c) of this title, to be withdrawn from, and to be
prohibited from entering, such area until an authorized
representative of the Secretary determines that such imminent
danger and the conditions or practices which caused such
imminent danger no longer exist.

5

30 U.S.C. § 817(a).
The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C.
§ 814(d)(1), which distinguishes as more serious any violation that “could significantly and
substantially contribute to the cause and effect of a . . . mine safety or health hazard.”
6

36 FMSHRC Page 1552

cracked, and that it is not feasible for it to scale the highwall or construct benches. Connolly claims
that the use of spotters allowed for adequate time to warn the loader operator to move away.
Connolly further argues that the Judge erred in how she applied the standards in question. Finally,
Connolly raises procedural errors purportedly committed by the Judge during the hearing and in
writing her decision.
A. The Judge Correctly Interpreted and Applied the Standards in Question.
The language of the relevant standards is clear. Sections 56.3130, 56.3131, and 56.3200
state respectively that “[m]ining methods shall be used that will maintain wall, bank, and slope
stability in places where persons work or travel in performing their assigned tasks;” that “conditions
at or near the perimeter of the pit or quarry wall which create a fall-of-material hazard to persons
shall be corrected;” and that “[g]round conditions that create a hazard to persons shall be taken down
or supported before other work or travel is permitted in the affected area.” 30 C.F.R. §§ 56.3130,
56.3131, 56.3200.
Taken together, these standards require that an operator must maintain highwall stability and
correct hazardous conditions before work or travel takes place. As the Judge found in her decision,
“a reasonably prudent person familiar with the mining industry would recognize the requirements
of the standard.” 33 FMSHRC at 2276-77.7 See, e.g., Spartan Mining Co., 30 FMSHRC 699, 711
(Aug. 2008); Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982) (question of whether
violation occurred is measured against the standard of whether a “reasonably prudent person”
familiar with the factual circumstances would recognize that a hazard existed within the purview of
the applicable standard).
Connolly’s method of mining does not comply with the plain language of the standards. It
necessarily involves rock sliding down the highwall to be removed by the loader operator. This
method does not maintain wall stability; Connolly instead utilizes a spotter to warn the loader
operator when the wall is unstable. Similarly, Connolly’s reliance on a spotter to timely warn the
loader operator and the operator’s supposed ability to move away in time before getting hit by rock
fall does not constitute a correction of the fall-of-material hazards.
MSHA’s prior lack of enforcement of these standards at the mine does not demonstrate an
absence of violations or hazardous conditions. Connolly argues that in more than 50 years of using
this method of mining, it never had an accident caused by rock falls, and it had never been cited by

Connolly further argues in its brief that this enforcement action deprived it of fair
notice and due process. Br. at 31-33. Pursuant to section 113(d)(2)(A)(iii) of the Mine Act and
Commission Procedural Rule 70(g), we do not reach the issue of fair notice and due process
because it was not raised by Connolly in its Petition for Discretionary Review. 30 U.S.C.
§ 823(d)(2)(A)(iii); 29 C.F.R. § 2700.70(g). Connolly mentioned the “reasonably prudent
person” standard with regard to the correct interpretation of the regulations, but specifically
distinguished it from, and did not raise, the issue of fair notice. PDR at 9.
7

36 FMSHRC Page 1553

MSHA. However, this historical account cannot be used to prevent MSHA or this Commission from
enforcing clearly written standards. See Austin Powder Co., 29 FMSHRC 909, 920 (Nov. 2007) (a
past inconsistent enforcement pattern by MSHA inspectors does not prevent MSHA from
proceeding to apply the correct interpretation of a standard).
B. Substantial Evidence Supports the Judge’s Findings Regarding Highwall Stability.
We further conclude that substantial evidence supports the Judge’s determination that the
mining methods used by Connolly do not maintain highwall stability in conformity with the
standards.8 Relying on photographs taken at the mine, and the expert testimony of the MSHA
inspector and engineer, the Judge found that cracked pieces of rock and loose material overhung the
loader operator’s working area. 33 FMSHRC at 2272, 2279.
Although the Judge “relied upon the expert testimony of both parties” (id. at 2279), she
found the “Secretary’s witnesses to be more convincing, reliable and objective.” Id. at 2281.
MSHA engineer Steven Vamossy accompanied inspector Hilde on May 24, 2011. Id. at 2272.
Vamossy testified that there was a potential for sliding or toppling of smaller slabs of rocks, and that
the highwall is a hazard in its present condition. Id. at 2280-81. Connolly’s expert, engineer Jeffrey
Johnson, testified that a hazard only comes into play when a secondary force, such as an earthquake
or rain, is added into the equation. Id. at 2280-81; Tr. II at 111-12.9 The Judge found “Vamossy’s
conclusions regarding the condition of the highwall to be consistent with the photographs and the
general tenor of the testimony of all witnesses. . . . While Johnson and his team also viewed the
area, Vamossy did it with an eye to mine safety, unlike the engineers for the operator who have no
experience in the mining industry.” Id. at 2281.
The Commission has recognized that a Judge’s credibility determinations are entitled to great
weight and may not be overturned lightly. Consolidation Coal Co., 35 FMSHRC 2326, 2329 (Aug.
2013) (citations omitted). We find no evidence in the record that compels us to take the
extraordinary step of overturning the Judge’s credibility determinations. See Farmer v. Island Creek
Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992). Therefore, we affirm the Judge’s conclusion that
Connolly’s mining methods do not maintain the stability of the highwall.

When reviewing an administrative law judge’s factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as a reasonable
mind might accept as adequate to support [the judge’s] conclusion.”’ Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consol. Edison Co. of New York, Inc.
v. NLRB, 305 U.S. 197, 229 (1938)).
8

Johnson recognized that rainfall can cause rock falls which occur days or even weeks
after the actual rainfall. Tr. II at 116; 33 FMSHRC at 2284.
9

36 FMSHRC Page 1554

C. The Judge Properly Concluded that the Inspector Did Not Abuse His Discretion in
Issuing the Imminent Danger Order.
Section 107(a) of the Act provides in relevant part that if an MSHA inspector “finds that an
imminent danger exists, [the inspector] shall . . . issue an order requiring the operator of such mine
to cause all persons . . . to be withdrawn from” the relevant area until the danger no longer exists.
Section 3(j) defines an “imminent danger” as a condition “which could reasonably be expected to
cause death or serious physical harm before such condition or practice can be abated” (emphasis
added.) 30 U.S.C. § 802(j). The Commission has held that “there must be some degree of
imminence to support a section 107(a) order.” Utah Power and Light Co., 13 FMSHRC 1617, 1621
(Oct. 1991). It further explained that “imminent” means, among other things, “impending . . . :
hanging over one’s head: menacingly near.” Id. (citation omitted). However, “[t]he concept of
imminent danger is not limited to hazards that pose an immediate danger.” Cumberland Coal Res.,
LP, 28 FMSHRC 545, 555 (Aug. 2006), aff’d sub nom. Cumberland Coal Res., LP v. FMSHRC, 515
F.3d 247 (3rd Cir. 2008).
An inspector’s issuance of a section 107(a) imminent danger order is reviewed under an
“abuse of discretion” standard. Island Creek Coal Co., 15 FMSHRC 339, 345-47 (Mar. 1993); Utah
Power, 13 FMSHRC at 1627. A section 107(a) order will be upheld if the Secretary proves by a
preponderance of the evidence that the inspector reasonably concluded that an imminent danger
existed. Island Creek, 15 FMSHRC at 346-47.
Connolly’s main argument has been that the condition of the highwall cannot feasibly be
abated, and that is the reason for Connolly’s mining method and precautionary measures. Although
it may seem unusual that a condition which has been in place for many years can one day be cited
as an imminent danger, the circumstances here involve extremely hazardous conditions which
cannot be abated within the meaning of section 3(j).
Inspector Hilde testified that the operator did not maintain the stability of the highwall and
that the top of the wall had loose and unconsolidated materials and boulders. 33 FMSHRC at 2278,
2282; Tr. I at 24-25, 48-51. Hilde further testified that the spotter system “does not stop or mitigate
the likelihood of material coming off the wall. It just lets the guy watch it happen.” Tr. I at 82.
Hilde explained that he issued the section 107(a) order because of the overhanging material and -regarding the 480 North section -- “because it was imminent that someone could go back there to
work.” Tr. I at 29. The Judge found it was reasonable for the inspector to “believe that a fall of rock
or debris was imminent, thereby threatening the safety of the miners working below.” 33 FMSHRC
at 2292. We conclude that substantial evidence supports the Judge’s conclusion that the inspector
did not abuse his discretion. Given Connolly’s mining method and the extraordinary height of the
highwall, abatement of the hazardous condition was not possible.
D. The Operator’s Procedural Error Arguments Lack Merit.
We reject Connolly’s contention that the Judge committed procedural errors in not allowing
its expert witness to answer certain questions, and by enforcing time limits on some cross-

36 FMSHRC Page 1555

examinations. Upon review of the record, we find that the Judge’s rulings during the hearing were
within her discretion and did not constitute prejudicial procedural error. See Medusa Cement Co.,
20 FMSHRC 144, 150 (Feb. 1998) (citing Desjardins v. Van Buren Community Hospital, 969 F.2d
1280, 1282 (1st Cir. 1992) (judge’s request that counsel not be repetitive and follow proper
procedures in asking questions was not an abuse of discretion)).
We further conclude that the Judge’s reliance on an extra-record publication in her decision
was, at most, harmless error due to the general applicability of the principles mentioned by the Judge
and the discussion of these principles during the hearing. The Judge “[took] notice of a number of
MSHA and NIOSH publications that describe highwall stability and generally refer to a wall that
is up to 100 feet high as the outer limit of acceptable height.” 33 FMSHRC at 2282. The Judge then
quoted and cited a publication discussing general good practices of highwall stability and the
dangers inherent to highwalls of great height. Id. at 2282, 2284.10 In any event, the Judge
introduced the cited publication at the hearing and questioned a witness about the publication’s
conclusions without objection from Connolly. Tr. II at 143-44.
Connolly’s argument that it was deprived of the opportunity to address principles regarding
the outer limit of acceptable highwall height is likewise without merit. Id. at 2276; Br. at 30-31.
We note that the record includes discussion of this topic during the hearing. See Tr. I-175
(discussing the Oregon Rockfall Study addressing highwalls up to 80 feet high and concluding that
higher slopes produce more variable rockfalling distances); Tr. I-77 (asking the inspector if “there
was no outright prohibition of having a 300 foot highwall”); Tr. II-157 (emphasizing that the Oregon
Study’s lack of research beyond 80-foot highwalls does not indicate the maximum safe height of a
highwall). This discussion indicates that both parties were aware that the highwall in this case was
uncommonly high, that this highwall’s height was at issue, and that generally most highwalls did
not exceed 100 feet. Therefore, the issue was directly raised, and Connolly had the opportunity to
respond.

Citing Christopher Mark Ph.D. & Anthony T. Iannacchione Ph.D., Ground Control
Issues for Safety Professionals, in Mine Health and Safety Management 365 (Michael Karmis
ed., 2001).
10

36 FMSHRC Page 1556

III.
Conclusion
For the foregoing reasons, we affirm the Judge’s decision. We conclude that the operator
did not comply with the standards in question and did not correct hazardous conditions before
permitting its employees to work under the highwall. We also find that the record supports the
Judge’s conclusion that the hazardous conditions presented an imminent danger.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

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

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

36 FMSHRC Page 1557

Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Administrative Law Judge Margaret A. Miller
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
721 19th Street, Suite 443
Denver, CO 80202-5268

36 FMSHRC Page 1558

COMMISSION ORDERS

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

June 20, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
COLD SPRING GRANITE COMPANY

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:

Docket No. CENT 2013-515-M
A.C. No. 41-00070-317641-02

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

36 FMSHRC Page 1559

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment, containing 17 penalties, was delivered on
April 9, 2013. Cold Spring timely contested four of the penalties and paid the remaining 13
penalties. Two of the contested citations were issued for alleged violations at Cold Spring’s shot
saw shop. Cold Spring avers that it originally contested those citations because it believed that
MSHA lacks jurisdiction over the shop. It now seeks to reopen seven of the 13 uncontested
penalties, stating that these citations also relate to the shot saw shop.
The Secretary opposes the motion to reopen, stating that Cold Spring made
knowledgeable decisions regarding which citations to contest. The Secretary contends that Cold
Spring’s subsequent “change of mind” does not constitute a “mistake, inadvertence, surprise or
excusable neglect” that justifies the reopening of uncontested citations. Sec’y’s Opposition at 4
(citing Ackermann v. United States, 340 U.S. 193, 198 (1950)). In response, Cold Spring asserts
that it timely contested two citations issued for alleged violations at the shop and inadvertently
failed to contest seven others because it did not initially recognize that those citations involved
occurrences at the same shop.
Certainly, “[a] change of mind is not adequate grounds to reopen a final judgement
pursuant to Rule 60(b).” Brzeczek v. Centerior Energy, 2000 WL 875744, No. 99-3900, slip op.
at 1-2 (6th Cir. June 20, 2000). See, e.g., Ackermann v. United States, supra. In this case,
however, Cold Spring has demonstrated that it originally intended to challenge all the citations
originating from the inspection of the shot saw shop. Its failure to contest the seven citations at
issue was the result of a mistake. After discovering its mistake, Cold Spring promptly sought
reopening of the citations.

36 FMSHRC Page 1560

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

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

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

36 FMSHRC Page 1561

Distribution:
Gary L. Vischer, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

36 FMSHRC Page 1562

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

June 20, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
CLINTWOOD ELKHORN MINING
COMPANY, INC.

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:
:
:
:
:
:
:
:

Docket Nos. KENT 2011-1354
KENT 2011-1385
KENT 2011-1386

ORDER
A petition for discretionary review was filed by Clintwood Elkhorn Mining Company, Inc.
on June 16, 2014. This petition was filed pursuant to section 113(d)(2) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 823(d)(2). Section 113(d)(2)(A)(1) of the Mine Act states that
a petition for discretionary review by the Commission may be filed within 30 days after the issuance
of the judge’s decision. 30 U.S.C. § 823(d)(2)(A)(1).
The judge’s decision was issued on May 14, 2014. Any petition for discretionary review was
due 30 days thereafter, on June 13, 2014. Although the judge filed an amended decision on May 15,
2014, correcting a clerical error, Commission Procedural Rule 69( c) states that the issuance of an
amended decision correcting a clerical error shall not toll the time for filing a petition for
discretionary review of the judge’s decision on the merits. 29 C.F.R. § 2700.69( c). Thus the 30day time limit for filing the petition started to run from May 14 (the date of the initial decision)
rather than from May 15 (the date of the amended decision).

36 FMSHRC Page 1563

The petition for discretionary review is therefore denied. Consequently, the decision of
Administrative Law Judge Priscilla M. Rae dated May 14, 2014, is final as of 40 days after its
issuance. 30 U.S.C. § 823(d)(1).1

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

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

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

Separately, we note that no two Commissioners would have voted to grant the petition
on the merits.
1

36 FMSHRC Page 1564

Distribution:
Melanie J. Kilpatrick, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
3151 Beaumont Centre Circle, Suite 375
Lexington, KY 40513
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Administrative Law Judge Priscilla M. Rae
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004

36 FMSHRC Page 1565

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

June 20, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.
ALABAMA MARBLE COMPANY, INC.

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Docket No. SE 2012-226-M
A.C. No. 01-02947-277361
Docket No. SE 2012-560-M
A.C. No. 01-02947-291433
Docket No. SE 2013-525-M
A.C. No. 01-02947-308350
Docket No. SE 2013-526-M
A.C. No. 01-02947-318268
Docket No. SE 2013-527-M
A.C. No. 01-02947-321067

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
ORDER
BY: Jordan, Chairman; Young, Nakamura, and Althen, Commissioners
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On July 26, 2013, the Commission received from Alabama
Marble Company (“AMC”) a motion seeking to reopen a penalty assessment proceeding and
relieve the operator from the Default Order entered against it, reopen a Decision Approving
Settlement, and reopen three penalty assessments that had become final orders of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).1
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that in Docket No. SE 2012-226-M, Chief Administrative Law Judge Robert
J. Lesnick issued on October 24, 2012, an Order to Show Cause which by its terms became a
Default Order if the operator did not file an answer within 30 days. The Commission did not

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers SE 2012-226-M, SE 2012-560-M, SE 2013-525-M, SE 2013-526M, and SE 2013-527-M, all captioned Alabama Marble Company, Inc., and involving similar
procedural issues. 29 C.F.R. § 2700.12.
1

36 FMSHRC Page 1566

receive AMC’s answer within 30 days, so the default order became effective on November 26,
2012. The judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. §
2700.69(b). MSHA mailed a delinquency notice on March 20, 2013.
In Docket No. SE 2012-560-M, Administrative Law Judge Thomas P. McCarthy issued a
Decision Approving Settlement on March 20, 2013. Under the Mine Act and the Commission’s
procedural rules, relief from a judge’s decision may be sought by filing a petition for
discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. §
2700.70(a). If the Commission does not direct review within 40 days of a decision’s issuance, it
becomes a final decision of the Commission. 30 U.S.C. § 823(d)(1). Consequently, the judges’
Order and Decision here have become final orders of the Commission.
In Docket No. SE 2013-525-M, the proposed assessment was delivered on December 10,
2012, and became a final order of the Commission on January 9, 2013. MSHA mailed a
delinquency notice on February 25, 2013. In Docket No. SE 2013-526-M, the proposed
assessment was delivered on April 17, 2013, and became a final order of the Commission on
May 17, 2013. MSHA mailed a delinquency notice on July 2, 2013. In Docket No. SE 2013527-M, the proposed assessment was delivered on May 15, 2013, and became a final order of the
Commission on June 14, 2013.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders. Jim Walter Res.,
Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to reopen final
section 105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure under which, for example, a party could be entitled to relief from a final order of
the Commission on the basis of mistake, inadvertence, or excusable neglect. See 29 C.F.R. §
2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
AMC asserts that it delegated the contest responsibility to a third party and recently
discovered that “nothing was ever done to contest and defend the charges.” Mot. at 1. The
Secretary of Labor opposes the requests to reopen and asserts that the operator identified no
exceptional circumstances warranting reopening. The Secretary notes that this operator has been
in business for many years and is familiar with MSHA procedures. The Secretary further states
that the inadequate monitoring of MSHA assessments and lack of communication between the
operator and its representative indicates an inadequate and unreliable processing system. In light

36 FMSHRC Page 1567

of the operator’s claim of financial difficulties, the significant amount of proposed assessments,
totaling almost $80,000, should have made the operator more diligent in pursuing a possible
appeal.
In response to the Secretary’s opposition, AMC explains that it hired a representative and
regularly paid him for the work it believed he was doing in these cases. AMC asserts that it is
having financial difficulties and could not afford to hire an attorney. Therefore, it relied on the
work of the representative and agreed to temporarily make payments in order to avoid further
penalties and collection charges.
Having reviewed AMC’s request and the Secretary’s response, we conclude that AMC
had an opportunity to be heard in Docket No. SE 2012-560-M, we therefore deny its motion to
vacate the Decision Approving Settlement. In the interest of justice, we hereby vacate the
Default Order in Docket No. SE 2012-226-M, and reopen the proposed penalty assessments in
Docket Nos. SE 2013-525-M, SE 2013-526-M, and SE 2013-527-M. Accordingly, Docket Nos.
SE 2012-226-M, SE 2013-525-M, SE 2013-526-M, and SE 2013-527-M are remanded to the
Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Consistent with Rule 28, the Secretary
shall file petitions for assessment of penalty within 45 days of the date of this order. See 29
C.F.R. § 2700.28.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman
/s/ Michael G. Young
Michael G. Young, Commissioner
/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner
/s/ William I. Althen
William I. Althen, Commissioner

36 FMSHRC Page 1568

Commissioner Cohen concurring in part and dissenting in part:
On July 26, 2013, Alabama Marble filed a motion requesting that the Commission
(1) vacate a Decision Approving Settlement, (2) reopen three cases involving citations that had
become final orders because Alabama Marble neglected to contest their respective penalty
assessments, and (3) vacate an Order of Default entered after it failed to file an Answer to a
penalty petition. Alabama Marble contends that the motions should be granted because the
consultant and attorney it hired to represent it in proceedings under the Mine Act failed to take
adequate steps to “contest and defend the charges.” Mot. at 1-2.
For the reasons that follow, I dissent from my colleague’s conclusions in part. I would
deny Alabama Marble’s motion to reopen the cases docketed as SE 2013-525-M and SE 2012226-M and remand these proceedings to the Chief Administrative Law Judge for further factfinding.
1)

The motion to vacate the Decision Approving Settlement of the case docketed
as SE 2012-560-M.

On February 12, 2013, the Secretary filed a motion to approve a settlement agreement for
the case docketed as SE 2012-560-M and represented that “[Alabama Marble] has reviewed this
motion, [and] has agreed to its terms.” Mot. at 1. Alabama Marble did not indicate any
disagreement with this statement. On March 20, 2013, a Judge issued a Decision Approving
Settlement.
Because Alabama Marble consented to the underlying settlement agreement, I agree with
the majority’s decision to deny the motion to vacate the Decision Approving Settlement.
2)

The motion to reopen the cases docketed as SE 2013-525-M, SE 2013-526-M,
and SE 2013-527-M.

The cases docketed as SE 2013-525-M, SE 2013-526-M, and SE 2013-527 became final
after Alabama Marble failed to timely contest the Secretary’s proposed penalty assessments for
the subject citations. Alabama Marble filed its motion to reopen these cases on July 26, 2013.
The motion was filed shortly after the Secretary issued a notice of delinquency for the case
docket as SE 2013-526-M (July 2, 2013), and shortly after the case docketed as SE 2013-527-M
became final (June 14, 2013). Because the record demonstrates that the operator reacted
promptly after it learned that the proposed assessments were mistakenly ignored, I conclude that
there is adequate cause to reopen these two proceedings.
However, Alabama Marble did not show the same expeditiousness in its request to
reopen the case docketed as SE 2013-525-M. In this case, a delinquency notice was mailed on
February 24, 2013, a full five months prior to the filing of the motion to reopen.

36 FMSHRC Page 1569

Under Rule 60(c), a motion to reopen, regardless of its merit, is only granted if it is filed
within a reasonable time. In the context of penalty assessments, in considering whether an
operator has unreasonably delayed in filing a motion to reopen, the Commission considers the
amount of time that passes between an operator’s receipt of a delinquency notice and the
operator’s filing of its motion to reopen. Highland Mining Co., 31 FMSHRC 1313, 1316 (Nov.
2009); Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009).
I conclude that Alabama Marble’s motion lacks sufficient details to establish the
extenuating circumstances necessary to justify the reopening of the case docketed as SE 2013525-M.
3)

The motion to vacate the Order of Default issued for the case docketed as
SE 2012-226-M.

Alabama Marble timely contested the proposed assessment issued for the citation at
issue in the case docketed as SE 2012-226-M. However, it subsequently failed to file an Answer
to the Secretary’s Penalty Petition as required by Commission Procedural Rule 29, 29 C.F.R.
§ 2700.29. On October 24, 2012, the Chief Administrative Law Judge issued an Order to Show
Cause stating that Alabama Marble would be in default if it failed to file an Answer within 30
days. Alabama Marble again failed to file an Answer. On March 20, 2013, the Secretary mailed
a notice to delinquency to Alabama Marble.
Alabama Marble waited an additional four months after receiving the notice of
delinquency to file the motion to vacate the Order of Default. The operator’s motion fails to
provide details that justify its significant delay. Accordingly, I conclude that Alabama Marble
has failed to demonstrate good cause to vacate the default order.
Conclusion
In summation, I concur with the majority’s denial of the motion to vacate the Decision
Approving Settlement issued for the case docketed as SE 2012-560-M and its grant of the motion
to reopen the proceedings docketed as SE 2013-526-M and SE 2013-527-M.
However, I conclude that Alabama Marble has failed to establish that its delay in filing a
motion to reopen the cases docketed as SE 2013-525-M and SE 2013-226-M was reasonable.
While Alabama Marble faults a consultant and an attorney it hired for the defaults, it does not
account for its failure to act for five and four months respectively, after receipt of multiple
documents from the Secretary which stated that further action was necessary on its part.

36 FMSHRC Page 1570

Therefore, I would remand the cases docketed as SE 2013-525-M and SE 2012-226-M to
the Chief Administrative Law Judge for further fact-finding regarding the cause of the delay in
filing the motions to reopen.

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

36 FMSHRC Page 1571

Distribution:
Stephen Musolino, President
Alabama Marble Co., Inc.
3400 N.W. 78TH Ave.,
Miami, Florida 33122
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Administrative Law Judge Thomas P. McCarthy
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

36 FMSHRC Page 1572

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
TH
721 19 STREET, SUITE 443
DENVER, CO 80202-2536
TELEPHONE: 303-844-3577 / FAX: 303-844-5267

June 3, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
TAFT PRODUCTION COMPANY,
Respondent

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CIVIL PENALTY PROCEEDING
Docket No. WEST 2013-908-M
A.C. No. 04-02964-323504

Taft Production Company & Mines

DECISION AND ORDER
Appearances:

Daniel Brechbuhl, Esq., Department of Labor, Denver, Colorado, for
Petitioner;
Larry R. Evans, Corporate Health & Safety Manager, Oil-Dri Corporation
of America, Ochlocknee, Georgia, for Respondent.

Before:

Judge Manning

This case is before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”),
against Taft Production Company, pursuant to sections 105 and 110 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The parties introduced
testimony and documentary evidence at a hearing held in Los Angeles, California and filed posthearing briefs. A total of four section 104(a) citations were adjudicated at the hearing.1 Taft
Production mines and produces clay for use in kitty litter and other products.
I. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A. Citation No. 8697954
On April 23, 2013, MSHA Inspector Eric Wiedeman issued Citation No. 8697954 under
section 104(a) of the Mine Act, alleging a violation of section 56.20003(a) of the Secretary’s
safety standards. (Ex. G-3). The citation states that there was a pile of material at the entrance to
the 101 conveyor tunnel. The material was approximately 2 feet by 2 feet and ranged from 6
inches deep to 1 1/2 feet deep. The material consisted of small granules and dust. The citation
alleges that miners are in the area to inspect and clean. Inspector Wiedeman determined that an
injury was unlikely to occur, but that such an injury could reasonably be expected to result in lost
1

This proceeding was originally designated for simplified proceedings under 29 C.F.R. §
2700.102(a). By order dated November 26, 2013, I removed the case from simplified
proceedings and it was tried under the Commission’s conventional rules.

36 FMSHRC Page 1573

workdays or restricted duty. He determined that the operator’s negligence was moderate, and
that one person would be affected. Section 56.20003(a) of the Secretary’s safety standards
requires “workplaces, passageways, storerooms, and service rooms shall be kept clean and
orderly[.]” 30 C.F.R. § 56.20003(a). The Secretary proposed a penalty of $100.00 for this
citation.
For the reasons set forth below, I modify Citation No. 8697954 to be the result of
Respondent’s low negligence.
Discussion and Analysis
I find that Respondent violated section 56.20003(a) because it failed to keep a
passageway clean. Both Inspector Wiedeman and Nick Kingston, a miner representative for
Respondent, agreed that a pile of material existed at the 101 conveyor tunnel. (Tr. 13, 73; Ex. R1). Respondent argues that the cited area was not a workplace or passageway because no miners
would work there before the area was cleaned.2 I find, however, that the area was intended for
use by miners for walking. Miners accessed the cited area to grease conveyor lines on a weekly
basis. (Tr. 20, 79). Inspector Wiedeman testified that the cited area was the only route to access
the grease lines. (Tr. 14). I reject Respondent’s argument that weekly use of the area is not
frequent enough to constitute a passageway; the cited area was not accessed while the condition
existed but the area was a passageway. Based upon the consistent testimony from both the
inspector and Kingston, I find that the area was a passageway or work area; miners accessed the
area to grease lines or passed through the area in order to access the lines. The area was not
clean. (Ex. R-1). A trip or fall leading to a sprain was unlikely, but possible. Respondent
violated section 56.20003(a).3
I find that the violation was the result of Respondent’s low negligence. The inspector
testified that the condition existed for two days. (Tr. 15). Miners accessed the area to grease
lines, but not while the conveyor operated and only on a weekly basis. (Tr. 79-80). The
condition posed little danger and it is likely that no miners knew about the condition. (Tr. 20).
Citation No. 8697954 was the result of Respondent’s low negligence. I MODIFY Citation No.
8697954 to reduce the negligence. A penalty of $400.00 is appropriate for this violation.
B. Citation No. 8697955
On April 23, 2013, Inspector Wiedeman issued Citation No. 8697955 under section
104(a) of the Mine Act, alleging a violation of section 56.20003(a) of the Secretary’s safety
2

Respondent cites Alan Lee Good to show that an area accessed only for maintenance is
not a passageway. 23 FMSHRC 995, 1000 (Sept. 2001). Respondent, however, misconstrues
the holding in that case. The Commission found that the cited area was not accessed or used to
walk upon during maintenance, not that miners walking in the area for maintenance did not make
an area a passageway.
3

My interpretation of workplaces and passageways under section 56.20003(a) is
consistent with the decision of Judge James Gilbert on this same issue. Taft Production Co., 23
FMSHRC 522, 526 (Feb. 2014).

36 FMSHRC Page 1574

standards. (Ex. G-5). The citation states that there was a pile of material upon the section 4 pad
that covered a 5 foot by 5 foot area. The depth of the pile varied between 4 inches and 3 feet and
there were footprints in the pile. The citation states that miners entered the area to grease the
bearings of the chain conveyor. Inspector Wiedeman determined that an injury was reasonably
likely to occur and that such an injury could reasonably be expected to result in lost workdays or
restricted duty. Further, he determined that the violation was significant and substantial
(“S&S”), the operator’s negligence was moderate, and that one person would be affected. The
Secretary proposed a penalty of $176.00 for this citation.
For the reasons set forth below, I modify Citation No. 8697955 to be non-S&S.
Discussion and Analysis
I find that the condition cited in Citation No. 8697955 is a violation of section
56.20003(a) for the same reasons I found that Citation No. 8697954, above, violated the safety
standard. Respondent does not contest that it violated section 56.20003(a) with respect to this
citation, but argues that the cited conditions were not S&S.
I find that the Secretary did not fulfill his burden to prove that Citation No. 8697955 was
reasonably likely to contribute to an injury and Citation No. 8697955 is therefore not S&S.4 The
Secretary argues that a serious injury was reasonably likely to occur because miners were
exposed to the conditions, evidenced by footprints in the accumulations. (Tr. 39; Ex. G-6).
Miners walked through the cited area on a daily basis to grease conveyor bearings. (Tr. 40, 91).
I find, however, that the cited condition was unlikely to cause an injury. Kingston testified that
the accumulated material was dust and the photographs corroborate his testimony. (Tr. 91; Ex.
G-6). Walking through a small amount of dust is unlikely to trip a miner. The area where the
largest and deepest accumulations occurred was directly under the conveyor, which was too low
to the ground to walk under. (Ex. R-4). The Secretary presented no evidence asserting that the
dust was slippery. As a consequence, the dust would be unlikely to obstruct the path of and trip
a pedestrian miner. Although the Secretary showed that the condition existed and miners
accessed the area, he did not show that the cited condition was likely to cause injury. Access to a
condition does not establish that the condition is likely to injure a miner. The Secretary did not
establish that it was reasonably likely that the hazard contributed to by the violation would result
in an injury. The citation is therefore not S&S.
4

An S&S violation is a violation “of such nature as could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d)
(2006). In order to establish the S&S nature of a violation, the Secretary must prove: “(1) the
underlying violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a
measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury will
be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord
Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F. 2d
99, 103 (5th Cir. 1988) (approving Mathies criteria). The Commission has held that “[t]he test
under the third element is whether there is a reasonable likelihood that the hazard contributed to
by the violation…will cause injury.” Musser Eng’g, Inc. and PBS Coals, Inc., 32 FMSHRC
1257, 1281 (Oct. 2010).

36 FMSHRC Page 1575

I find that the violation was the result of Respondent’s moderate negligence. I credit
Kingston’s testimony that Respondent noticed the condition a few hours before the inspection
and planned to remove it; a miner should not have walked through the cited area before it was
cleaned. Citation No. 8697954 was the result of Respondent’s moderate negligence. I hereby
MODIFY Citation No. 8697955 to be non-S&S; a penalty of $500.00 is appropriate for this
violation.
C. Citation No. 8697956
On April 23, 2013, MSHA Inspector Eric Wiedeman issued Citation No. 8697956 under
section 104(a) of the Mine Act, alleging a violation of section 56.14107(a) of the Secretary’s
safety standards. (Ex. G-7). The citation states that the shafts of the squaring plate shuttle on the
104 pelletizer were not guarded. The guard was removed and was near the cited shafts. (Tr. 5152; Ex. G-8). The shafts move approximately 3 inches and were located 2-3 inches above the
deck. The citation states that miners enter the area to inspect and clean. Inspector Wiedeman
determined that an injury was unlikely to occur, but that such an injury could reasonably be
expected to result in lost workdays or restricted duty. He determined that the operator’s
negligence was moderate and that one person would be affected. Section 56.14107(a) of the
Secretary’s safety standards requires “[m]oving machine parts shall be guarded to protect
persons from contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys, flywheels,
couplings, shafts, fan blades, and similar moving parts that can cause injury.” 30 C.F.R. §
56.14107(a). The Secretary proposed a penalty of $100.00 for this citation.
For the reasons set forth below, I affirm Citation No. 8697956.
Discussion and Analysis
I find that the conditions cited in Citation No. 8697956 violated section 56.14107(a).
The Commission has held that a violation of the guarding standard requires a “reasonable
possibility of contact and injury” that includes “contact stemming from inadvertent stumbling or
falling, momentary inattention, or ordinary human carelessness.” Thompson Brothers Coal Co.,
Inc., 6 FMSHRC 2094, 2097 (Sept. 1984). To determine whether a reasonable possibility
exists, the Commission stated that all “relevant exposure and injury variables, e.g., accessibility
of the machine parts, work areas, ingress and egress, work duties, and as noted, the vagaries of
human conduct” must be considered. Id. The parties agree that the cited squaring plate shaft
was unguarded. Although the equipment was not under repair and operated the previous night,
Respondent’s policy requires miners to lock out the cited equipment before entering the area.
(Tr. 95). Policy, however, cannot account for “the vagaries of human conduct” that may lead a
miner to enter the area without locking out the equipment. It would be reasonably possible for a
miner to contact the cylinders in the unguarded area, doing so with a foot since the area was 2-3
inches above the deck. (Tr. 52). The focus of the analysis in this guarding standard is the
reasonable possibility of contact, not whether the machine was operating and the parts were

36 FMSHRC Page 1576

physically moving at the time of the inspection.5 The cited condition presented a reasonable
possibility of injuring a miner and Respondent therefore violated section 56.14107(a).
Although the violation was not S&S the gravity was serious. Respondent knew or should
have known of the condition cited in Citation No. 8697956. The condition was obvious and the
result of Respondent’s moderate negligence. I AFFIRM Citation No. 8697956 and find that
penalty of $600.00 is appropriate for this violation.
D. Citation No. 8697960
On May 1, 2013, Inspector Wiedeman issued Citation No. 8697960 under section 104(a)
of the Mine Act, alleging a violation of section 56.14130(g) of the Secretary’s safety standards.
(Ex. G-9). A miner noticed upon inspection that the seat belt of Respondent’s #3 Mack water
truck was broken but he operated the vehicle without using the seat belt. Id. Inspector
Wiedeman determined that an injury was reasonably likely to occur and that such an injury could
reasonably be expected to be fatal. Further, he determined that the violation was S&S, the
operator’s negligence was low, and that one person would be affected. Section 56.14130(g)
requires that “[s]eat belts shall be worn by the equipment operator except that when operating
graders from a standing position, the grader operator shall wear safety lines and a harness in
place of a seat belt.” 30 C.F.R. § 56.14130(g). The Secretary proposed a penalty of $263.00 for
this citation.
For the reasons set forth below, I vacate Citation No. 8697960.
Discussion and Analysis
I find that Respondent did not violate section 56.14130(g) because section 56.14130(g)
does not apply to the cited piece of equipment. The Secretary does not require all self-propelled
vehicles to be equipped with Rollover Protection Systems (ROPS) and seatbelts. Only the
vehicles listed in section 56.14130(a) must have ROPS and seatbelts. All vehicles that require
seatbelts also require ROPS. The only exception is haulage trucks, which are required to have
5

I reject Respondent’s argument that Citation No. 8697956 should be vacated because
the unguarded moving parts were not actively moving at the time of inspection. Respondent
mischaracterized a decision to support its argument, citing Brubaker Mann to argue that if the
inspector did not see the equipment in use, it did not violate section 56.14107(a). 8 FMSHRC
1487, 1493 (Sept. 1986) (ALJ). Brubaker Mann, however, does not reference whether a piece of
equipment was actively moving, but whether that equipment was in service. The Commission
has addressed guarding standards. See Thompson Brothers Coal, 6 FMSHRC at 2097. I find
that under Section 56.14107(a), moving parts are machine parts that move as part of their
functions; the standard is not limited to parts that actively move during an inspection.
Respondent, furthermore, references MSHA’s program policy manual (“PPM”) to argue
that the standard only applies when no guard exists at conveyor pulleys. (R. Br. at 8-9).
Respondent misconstrues the PPM and its argument ignores the plain language of section
56.14107(a) that requires any moving parts, including shafts, to be guarded. I also reject
Respondent’s arguments that rely upon other standards as they do not apply to the current case.

36 FMSHRC Page 1577

seatbelts but not ROPS under a different safety standard at section 56.14131(a). When the
Secretary promulgated section 56.14131 he chose to only require seatbelts upon haulage trucks
rather than on all vehicles used at surface mines that are not protected by ROPS. “Safety
Standards for Loading, Hauling, and Dumping and Machinery and Equipment at Metal and
Nonmetal Mines,” 53 Fed. Reg. 32496. 32512 (August 25, 1988).
Subsection (g) of section 56.14130 is only applicable if subsection (a)6 requires the
installation of seatbelts upon the cited equipment. Ford Construction Co., 14 FMSHRC 1975,
1977 (Dec. 1992). The Commission did not require that a piece of equipment be explicitly listed
in subsection (a).7 Instead, the Commission found that the pertinent consideration of whether
section 56.14130 applies is the characteristics of the equipment, including “the size of the cited
equipment, its function and its ability to articulate[.]” Id at 1978.
Based upon Kingston’s description of the equipment and the photograph of the
equipment submitted by the Secretary, I find that section 56.14130(a) does not apply to the cited
piece of equipment. A water truck is not a “wheel tractor,” as that term is used in section
56.14130(a)(3), because it does not fit within the definition of a tractor. A “tractor” is a “selfpropelled vehicle . . . intended for moving itself and other vehicles.” Am. Geological Institute,
Dictionary of Mining, Mineral, and Related Terms 582 (2d ed. 1997) (emphasis added). The
Secretary did not present any evidence that the cab of the water truck was in a tractor that pulled
a wheeled water tank. Likewise, the Secretary also did not establish that the water truck was the
“tractor portion of semi-mounted . . . water wagon[,]” as that term is used in section
56.14130(a)(4). A water wagon is generally larger than a water truck and cannot operate upon
public highways. (Tr. 99). There is also no evidence that any portion of the water truck was
“semi-mounted,” that the truck had the ability to articulate, or that it included a tractor.

6

Section 56.14130(a) states:
Roll-over protective structures (ROPS) and seat belts shall be installed on—
(1) Crawler tractors and crawler loaders;
(2) Graders;
(3) Wheel loaders and wheel tractors;
(4) The tractor portion of semi-mounted scrapers, dumpers, water
wagons, bottom-dump wagons, rear-dump wagons, and towed fifth
wheel attachments;
(5) Skid-steer loaders; and
(6) Agricultural tractors.

30 C.F.R. § 56.14130(a).
7

Respondent argues that section 56.14130(g) does not apply to water trucks because
water trucks are not specifically listed in section 56.14130(a). The Commission expressly
rejected this argument. Ford Construction Co., 14 FMSHRC at 1977.
36 FMSHRC Page 1578

It is clear that section 56.14130(a) primarily addresses large, industrial, tractors that
articulate and not trucks like the water truck cited here. I reject the Secretary’s argument that the
water truck fits within section 56.14130(a) because it had a “semi-tractor style cab consistent
with the types of equipment listed” in that subsection. (Sec’y Br. at 18 n. 8) (emphasis added).
Subsection (a) was not broadly written to include all vehicles with large truck cabs. It is
significant that the Secretary did not present evidence that the water truck was equipped with
ROPS or that it was cited by the inspector for not being equipped with ROPS. If a seatbelt was
required in the water truck, then ROPS was required as well. I find that the cited water truck
does not fit any of the equipment listed in section 56.14130(a), which is a prerequisite for the
application of section 56.14130(g).
The Secretary also argues that section 56.14100(b) applies to the cited condition. That
safety standard provides that “[d]efects on any equipment, machinery, and tools that affect safety
shall be corrected in a timely manner to prevent the creation of a hazard to persons.” The
Secretary did not allege a violation of that safety standard and Respondent was not given the
opportunity to defend against such an allegation. Consequently, I have not considered this
argument. Failure to wear a seatbelt creates a hazard. The Secretary’s safety standard and its
regulatory history, however, compel me to VACATE Citation No. 8697960 because section
56.14130(g) does not apply to the cited equipment.8
II. APPROPRIATE CIVIL PENALTY
Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. I have considered the Assessed Violation History Report, which was
submitted by the Secretary. (Ex. G-13). Respondent was issued 12 citations in the 15 months
prior to April 23, 2013. Most were designed as non-S&S when issued. Respondent was a
medium-sized mine operator which employed about 73 people in 2013. The violations were
abated in good faith. The penalties assessed in this decision will not have an adverse effect upon
the ability of Taft Production Company to continue in business. The gravity and negligence
findings are set forth above. I find that the penalties proposed by the Secretary were too low
taking into consideration the size of the operator, the gravity of the violations, and Respondent’s
negligence. I increased the penalties based primarily on the size of Respondent.

8

The Secretary should consider amending its safety standards for metal and nonmetal
mines to require the use of seatbelts in all vehicles used upon the surface at such mines.

36 FMSHRC Page 1579

III. ORDER
For the reasons set forth above, I MODIFY Citation Nos. 8697954 and 8697955, I
AFFIRM Citation No. 8697956, and I VACATE Citation No. 8697960. Taft Production
Company is ORDERED TO PAY the Secretary of Labor the sum of $1,500.00 within 30 days
of the date of this decision.9

Distribution:

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

Daniel Brechbuhl, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 800, Denver, CO 80202 (Certified Mail)
Larry Evans, Oil-Dri Corporation of America, P.O. Box 380, Ochlocknee, GA 31773-0390
(Certified Mail)

9

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

36 FMSHRC Page 1580

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

June 5, 2014
REVELATION ENERGY, LLC,
Contestant,
v.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent,

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
REVELATION ENERGY, LLC,
Respondent

:
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CONTEST PROCEEDINGS
Docket No. KENT 2011-357-R
Order No. 8257014; 12/21/2010
Mine: S-4 Netley Branch
Mine ID: 15-17799
Docket No. KENT 2011-211-R
Order No. 8257006; 10/22/2010
Mine: S-1 Hunt’s Branch
Mine ID: 15-18280
CIVIL PENALTY PROCEEDINGS
Docket No. KENT 2011-1106
A.C. No. 15-18280-254952
Mine: S-1 Hunt’s Branch
Docket No. KENT 2011-1054
A.C. No. 15-17799-251789
Mine: S-4 Netley Branch

DECISION
Appearances: Willow Eden Fort, Esq., U.S. Department of Labor, Office of the Solicitor,
Nashville, TN, for Petitioner;
David J. Hardy, Esq. & Christopher D. Pence, Esq., Hardy Pence, LLC,
Charleston, WV, for Respondent.
Before:

Judge Andrews

36 FMSHRC Page 1581

This proceeding was held pursuant to the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (the “Mine Act” or “Act”). Hearings were held in Prestonsburg,
Kentucky on September 25th and 26th, 2012, at which the parties presented testimony and
documentary evidence. This matter concerns Citation No. 8257006, Citation No. 8257014 and
Citation No. 8257015 issued on December 21, 2010, December 22, 2010 and December 29,
2010, respectively. Citation No. 8257006 and Citation No. 8257015 were issued under Section
104(d)(1), and Citation No. 8257014 was issued under Section 103(k) of the Act. After the
hearing, Post Hearing Briefs and Reply Briefs were submitted.
Common Facts and Law
The parties agreed to the following stipulations:
1. During all times relevant to this matter, Revelation was the owner of the S-1 Hunts
Branch Mine, Mine ID No. 15-18280.
2. The S-1 Hunts Branch Mine, Mine ID No. 15-18280, is a “mine” as that term is defined
in Section 3(h) of the Federal Mine Safety and Health Act (“Mine Act”), 30 U.S.C. §
802(h).
3. At all material times involved in this case, the products of the subject mine entered
commerce, or the operations or products thereof affected commerce, within the meaning
and scope of Section 4 of the Mine Act, 30 U.S.C. § 803.
4. This Proceeding is subject to the jurisdiction of the Mine Safety and Health Review
Commission and its designated Administrative Law Judges pursuant to Sections 105 and
113 of the Mine Act.
5. MSHA Inspector Todd Belcher, whose signature appears in Block Number 22 of Citation
Numbers 8257006, 8257014 and 8257015, was citing in the official capacity and as an
authorized representative of the Secretary of Labor when Citation Numbers 8257006,
8257014 and 8257015 were issued.
6. True copies of Citation Numbers 8257006, 8257014 and 8257015 were served on
Revelation as required by the Mine Act.
7. The total proposed penalties assessed for Citation Numbers 8257006, 8257014 and
8257015 will not affect Revelation’s ability to stay in business.
8. The alleged violation was abated in good faith.
JX-1.1

1

Hereinafter, the joint exhibits will be referred to as “JX” followed by the number.
Similarly, the Secretary’s exhibits will be referred to as “SX” and Respondent’s exhibits will be
referred to as “RX.”

36 FMSHRC Page 1582

FINDINGS OF FACT AND CONCLUSIONS OF LAW
The findings of fact are based on the record as a whole and my careful observation of
the witnesses during their testimony. In resolving any conflicts in the testimony, I have taken
into consideration the interests of the witnesses, or lack thereof, and consistencies, or
inconsistencies, in each witness’s testimony and between the testimonies of the witnesses. In
evaluating the testimony of each witness, I have also relied on his demeanor. Any failure to
provide detail as to each witness’s testimony is not to be deemed a failure on my part to have
fully considered it. The fact that some evidence is not discussed does not indicate that it was
not considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)(administrative law judge
is not required to discuss all evidence and failure to cite specific evidence does not mean it was
not considered).
KENT 2011-1054 & KENT 2011-357-R
Todd Belcher2 issued Citation No. 8257015 on December 29. 2010 after he investigated
a report that a blast at the S-4 Netley Branch Mine on December 21, 2010 caused a flyrock
event.3 Tr. I, 41, 139, 141-142; SX-13.
The S-4 Netley Branch Mine was a multiple seam mining operation, which was
approximately 300-500 acres in size. Tr. I, 39. The mine had two spreads of equipment that
removed spoil from the coal pits. Tr. I, 40. Belcher explained the process by which an operator
extracts coal from this sort of surface mine: first they develop a work area by removing trees
2

At the time of hearing, Todd Belcher had been working for five years as a surface and
ground control specialist for MSHA at the District 6 office in Pikeville. Tr. I, 26-27. Prior to
working for MSHA, Belcher worked in the engineering department at Central Appalachian
Mining (CAM) tracking the permitting and application process for one year from 2006-2007. Tr.
I, 32-33. Prior to that, Belcher worked for 21 years as an inspector and then supervisor for the
Commonwealth of Kentucky at the Department for Surface Mine Reclamation Enforcement. Tr.
I, 33. He has an Associate’s degree in Mining Technology from Pikeville College. Tr. I, 38.
As a ground control specialist with MSHA, Belcher’s primary responsibilities are to
ensure that adequate plans for ground control plans are submitted and acknowledged throughout
the District, and to perform accident and regular investigations as needed. Tr. I, 27. Belcher had
attended a two-week training on accident investigation at Beckley, and had performed
approximately 10-12 accident investigations since coming to MSHA. Tr. I, 27-28. Most of the
accident investigations took place at surface mines. Tr. I, 28. Approximately half of these
investigations were flyrock accidents, and the remainder were primarily equipment accidents. Tr.
I, 28.
3

I, 273.

Austin Powder was also served with citations and violations for the fly-rock incident. Tr.

36 FMSHRC Page 1583

and creating a drill bench to allow the drilling process to proceed. Tr. I, 29-30. Then the holes
are drilled and loaded, and the material is blasted or shot so it can be fragmented and removed
with loading equipment.4 Tr. I, 30. Once the overburden or spoil is removed, then the coal can
be picked up.5 Tr. I, 30.
Revelation began operating the S-4 Mine in April 2010. Tr. I, 193. Prior to that,
Appalachian Fuel operated the mine. Tr. I, 193. The blasting at the S-4 Mine was contracted
out to Austin Powder in December 2010. Tr. I, 192-193.
December 21, 2010 was a cold and snowy day, with visible snow cover on the ground.
Tr. I, 197. Day shift foreman Robert Stanley followed his general routine of arriving at the
mine at approximately 4:45 a.m., and proceeded to do a pre-shift examination.6 Tr. I, 197.
According to this routine, he would check the road conditions and the highwall, with the whole
process usually taking him an hour. Tr. I, 197. Stanley performed a full examination before
letting any of the day shift men enter the work area at 6:00 am. Tr. I, 198-199.
Stanley testified that nothing stood out on the December 21 inspection. He testified that
“the walls and stuff were intact, everything was safe, the roads were graded from the night
before, the area was safe to go into and proceed on.” Tr. I, 199. Stanley then took an hourly
employee and Wendell Schwartz, a loader man, into the area. Tr. I, 199-200. Schwartz was
working with three rock truck drivers that rotated through the pit area. Tr. I, 200. These
workers would have removed the overburden or the shot from the day before that was still in
place. Tr. I, 201.
Stanley looked at all the holes and saw that they were not loaded. Tr. I, 204-205. The
holes were usually loaded at daylight, around 7:30 or 8:00 am. Tr. I, 207. Stanley left the area

4

A “shot” is synonymous with the term “blast.” The detonation that occurs after a hole is
drilled and loaded with explosives is a “shot.” Tr. I, 40. Each blast or shot is assigned a number.
Tr. I, 61. Shots are numbered sequentially, and are reset at the beginning of each calendar year.
Tr. I, 229.
5

The overburden or spoil is the rock that overlies the coal. It can consist of sandstone,
shale, and similar rock. Tr. I, 30.
6

Robert Stanley was the day shift foreman at the S-4 Mine on 12/21/2010. Tr. I, 191.
This shift lasted roughly from 5 am-5 pm. Tr. I, 191. Stanley began his mining career in 1994,
and has worked in surface mining since. Tr. I, 191-192. He was a Kentucky and West Virginia
certified coal miner and foreman, as well as a Kentucky certified EMT and an MSHA limited
instructor. Tr. I, 192. Stanley had worked at the S-4 Mine since April 2010. Tr. I, 193. He
reported to Roland Davis, the general manager of the mine. At that time, Davis was also
managing the Hunts Branch S-1 mine. Tr. I, 194.

36 FMSHRC Page 1584

around 6:20 or 6:30 a.m.7 Tr. I, 208. Wallen called Stanley prior to the shot and stated that he
was ready to detonate and that Stanley’s men needed to be removed from the area. Tr. I, 212.
Stanley was at the “prell bin” where the powder was located when the shot was detonated. Tr. I,
212. At this position he was about a quarter of a mile away and did not have a clear view of the
shot because it was blocked from the spoil bank. Tr. I, 213.
Wallen was in charge of Shot 255, and had two additional men working with him on it.8
Tr. I, 228, 235-236. Prior to detonating the shot, Stanley told Wallen what area they were going
to shoot. Tr. I, 236. Wallen and his men went to the magazines, got the product, placed
everything in place, and had a pre-shift meeting. Tr. I, 236. They then proceeded to go out to
the area and look around to make sure there was nobody working. Tr. I, 236. They then placed
a blasting sign to make anyone around aware of the upcoming blasting. Tr. I, 237. Wallen used
his GPS to determine how far they were from houses. Tr. I, 237. He then checked the area on
the face and the burden of the holes to determine if anything else needed to be done before the
blast. Tr. I, 237.
The shot was detonated at 9:01 am. Tr. I, 250. Wallen did not see anything that caused
him concern, and he did not see any flyrock depart from the shot. Tr. I, 251. Wallen was aware
of the location of the homes, and he testified that he designed the shot away from the homes. Tr.
I, 243-244. Wallen testified that the shot appeared to detonate the way he designed it to
detonate. Tr. I, 251.
Danny Mullins pulled the trigger on the shot, while Wallen videotaped. Tr. I, 274. At
the time of the shot, Wallen was trying to videotape it, but he fell because it was slick where he
was standing. Tr. I, 251. As a result, the camera fell from his hand and turned off.9 Tr. I, 251,
258-259. Wallen testified that when he fell, the shot was 95-100% completed. Tr. I, 262.
Reviewing the video, Wallen was not able to see the flyrock. Tr. I, 252-256. Wallen testified
7

He communicated with the certified blaster, Shawn Wallen, at Austin Powder from time
to time. Tr. I, 194-195. Stanley would usually tell Wallen in the early mornings what areas
needed to be blasted. Tr. I, 195. Revelation relied on Austin Powder, and did not have someone
responsible for laying out Wallen’s shot or supervising Wallen. Tr. I, 195.
8

On December 21, 2010, Wallen was employed by Austin Powder Company as a certified
blaster at the Revelation S-4 Mine. Tr. I, 226. Wallen had been working at that mine since April
2010, and his shift was from 10 pm until approximately 6 am. Tr. I, 227-229. His supervisor was
Dana Hamilton, and his contact at the mine was Superintendent Robbie Stanley. Tr. I, 227. Part
of Wallen’s job required him to communicate first thing in the morning with Stanley about the
drill bench, road conditions, the areas where shooting was going to occur, as well as the plan for
the day. Tr. I, 227.
9

The video submitted into evidence appears to be shut off before any motion that would
indicate that the person operating the camera was falling. SX-18.

36 FMSHRC Page 1585

that the vehicle visible in the video was a D-9 bulldozer, and that it was empty. Tr. I, 259-260.
It would have been dangerous for an individual to be inside the vehicle during a blast, but
Wallen stated that it was left there because he “felt it was safe for it to sit there.” 10 Tr. I, 260.
After the shot was detonated, Stanley went to do another on-shift examination. Tr. I,
213. Stanley radioed Wallen to ask if everything was clear and it was alright to go into the area,
and Wallen said things were all clear. Tr. I, 214.
Between 9:45 and 10:00 am, Stanley received a phone call from the engineering
department asking if there had been a flyrock. Tr. I, 214-215. Stanley responded that he did not
know of any flyrocks, and the engineering department told him that residents below called to
complain of flyrocks in their yards. Tr. I, 215. Stanley called Wallen immediately and they
contacted Dana Hamilton, who was a certified blaster with Austin Powder.11 Tr. I, 215. While
Wallen and Hamilton made arrangements to go down to the area where the flyrocks landed,
Stanley contacted MSHA and officials at the Commonwealth of Kentucky to report the flyrock.
Tr. I, 215.
After Belcher received the report at around 9 a.m., he went to the location of the alleged
flyrock event in order to see if any homes had been damaged or any injury had occurred. Tr. I,
41-42. First, Belcher issued the 103(k) Order, which ceased all blasting on the mine property.
Tr. I, 42. The next day, MSHA conducted interviews at the mine office, which led to the
conclusion that flyrock events had occurred that should have been included in the ground
control plan. Tr. I, 42-43.
Belcher testified that the 15 year history of the mine showed that the area was subject to
flyrock events. Tr. I, 43. Flyrock is not in itself a violation, however failing to follow a ground
control plan is a violation of 30 C.F.R. 77.1000. Tr. I, 59-60. Section 77.1000 requires each
operator to establish and follow a ground control plan in order to provide safe working
conditions at the mine site. Tr. I, 60. The ground control plan for the S-4 Netley Branch Mine
that was in effect at the time of the citation was dated April 26, 2010. Tr. I, 60; SX-16.
A ground control plan must address the type of mining being conducted, whether single
seam mining, multiple seam mining, or area mining. Tr. I, 28. The ground control plan must
also address how the configuration of the highwall will be left such that it provides safe
working conditions for the miners. Tr. I, 28. If the mine is engaging in multiple-seam mining,
10

In the video it appears that the vehicle has its headlights on and is moving, indicating
that someone was operating it. SX-18. It would have been illegal to have someone sitting in the
vehicle during the blast. Tr. I, 259-260.
11

Dana Hamilton had worked as a certified blaster with Austin Powder S-1 Mine since
October 13, 2009. Tr. II, 135-136, 139. Hamilton began blasting work in 1982 and became a
certified blaster in 1984. Tr. II, 136. As part of the certification process, Hamilton worked two
years on a powder crew and took two Kentucky examinations. Tr. II, 136-137.

36 FMSHRC Page 1586

then safety benches must be strategically placed to ensure safe highwall conditions.12 Tr. I, 28.
Additionally, the plan must include safety precautions for various activities, such as blasting.
Tr. I, 28-29. If there had been a history of flyrock events, the plan must include greater blasting
details. Tr. I, 29.
In this case, due to the dangers associated with blasting, rocks were projected between
1,100-1,200 feet through the air and landed near people’s homes. Tr. I, 46. One of the rocks
fragmented and struck the window of a nearby home. Tr. I, 46. When there is a flyrock event,
there is an automatic suspension of blasting until an analysis and investigation can be
performed. Tr. I, 47.
A drill log is used to inform blasters about any abnormalities, such as cracked holes, so
that the blaster is informed prior to loading the holes. Tr. I, 55. Belcher noticed in the drill log
that there were four holes marked with the letter “V,” indicating that these holes were voided.13
Tr. I, 56. During the course of the investigation, Belcher found that at least three of these four
holes were not loaded because the material was loaded out. Tr. I, 56, 144. According to the
report, these holes were loaded with backfill material, however Belcher believed that these
holes were removed prior to the blast. Tr. I, 148. Belcher did not notice any holes marked with
the letter “C,” which stands for crack. Tr. I, 56-57.
One home that was affected by the flyrock event at issue in this case was previously
affected by a flyrock event five years earlier. Tr. I, 43. Due to this history, and the proximity of
the homes, Belcher believed that there should have been a “heightened awareness of the
sensitivity of the area.” Tr. I, 43. The Netley Branch Mine had a blast remediation plan prior to
the flyrock event cited here. Such plans are put in place once a flyrock event occurs. Tr. I, 6264. In the plan, it identifies what went wrong, what led to the occurrence of the flyrock event,
and what measures will be put in place to prevent a similar occurrence. Tr. I, 62.
Belcher had been to the S-4 Netley Branch Mine 20-30 times over 15 years, though he
was not at the mine on the morning prior to the shot. Tr. I, 47. As part of his investigation,
Belcher conducted interviews on December 22, 2010 with homeowners who lived near the mine
site. Tr. I, 47-48, 57-58. Belcher also took contemporaneous notes on the violations. Tr. I, 5758. Belcher examined the distances between where the rocks landed and the homes nearby. Tr.
I, 48. He found that there were four to five different rocks ranging in sizes from four-by-four
inches to 12 by 12 inches. Tr. I, 48. These rocks were scattered on nearby property and Belcher
12

The “highwall” is a vertical rock wall that remains after the vertical holes are drilled and
blasted. Tr. I, 31. To “pre-line” or “pre-split” a highwall means to drill a separate line of holes
separate from the production holes in as straight a line as possible to crack the wall in a straight
line. Tr. I, 32.
13

Stanley testified that the holes with a “V” on them were unloaded holes. Tr. I, 210.
Wallen testified that the four holes marked with a “V” were voided, meaning that there were no
explosives loaded. Tr. I, 239.

36 FMSHRC Page 1587

saw the marks on the sides of homes from the rocks. Tr. I, 48-49. Furthermore, there was snow
on the ground, so one could see the paths of the rocks. Tr. I, 49. Belcher stated, there were five
people in one home and three people in another and said, “fortunately no one was injured or
killed, but there was people home at the time.” Tr. I, 49.
Belcher also interviewed individuals who were present at the mine during the flyrock
event, including several state officials and several officials with the Office of Surface Mining.
Tr. I, 49-50.
Shawn Wallen was the certified blaster in charge of Blast 255 and filled out the report.14
Tr. I, 139, 141-142. Belcher interviewed Wallen on December 22, 2010. Tr. I, 140-141.
Belcher interviewed Austin Powder foreman Robert Stanley on December 21 and 22, 2010. Tr.
I, 149. Belcher’s investigation did not reveal that any agent of the company was present at the
blast site or in the pit beside the blast site between 6:00 am and 9:00 am on the morning of the
flyrock event. Tr. I, 150.
Belcher also reviewed the ground control plan, the drill log, and the blast report.15 Tr. I,
50-51. The blast report contains a formula that includes the weight of the explosives and
distance to the nearest dwelling in order to determine a delay. Tr. I, 51. Belcher received the
blasting report in this case from either Revelation or Austin Powder, and the delay used was
eight milliseconds. Tr. I, 51, 53.
Photographs were admitted into evidence that showed a rock that broke through part of a
window of the house closest to the blast site. Tr. I, 108-109; SX-15. This house was
approximately 1,000 feet from the blast. Tr. I, 109. The photos also showed splattering on the
ground where rocks had landed. Tr. I, 111. The owner of the house told Belcher that the
window had been broken by the flyrock in the photo. Tr. I, 110-111. Belcher interviewed this
homeowner, and the homeowner stated that the rock came from the mine on the morning of the
blast. Tr. I, 113. Belcher and the homeowner walked around the entire yard, and the owner
pointed out the rocks that landed in his yard. Tr. I, 111-112.
14

Belcher was not sure if Wallen completed the shot report before or after the flyrock
event. Tr. I, 155-156. Shawn David Wallen had been a certified blaster for four years at the time
of hearing, which means that he had classroom training, worked two years on a surface mine
with a powder crew and blaster, and passed two examinations. Tr. I, 224-225. Wallen had
worked as a certified blaster since receiving his certification. Tr. I, 226.
15

Belcher testified that he has reviewed thousands of blast reports during his years
mining. Tr. I, 51. A blast report has several components, including the company name, the
amount of holes that are drilled, the depth of the holes, the amount of explosives loaded, the
amount of stemming, a date and time, and a house number and direction. Tr. I, 50-51. Blast
reports are used to document the amount of explosives used to move certain amounts of rock. Tr.
I, 51-52.

36 FMSHRC Page 1588

According to the photographs, flyrocks landed on a county road, and on other property
further from the blast site. Tr. I, 112-113; SX-15. The rock was large enough to kill a person if
it struck him or her in the head. Tr. I, 113-114. Other photos similarly showed rocks that had
splattered on the side of homes, on trees, and on rooftops. Tr. I, 113-116.
On December 21, 2010, the public highway and access roads at the mine were
accessible, and people were using them. Tr. I, 116. Furthermore, people were living in the two
homes affected by the flyrock event. Tr. I, 116-117.
After conducting an investigation as a result of the December 21, 2010 flyrock incident,
Belcher discovered that three elements of the plan were violated, which he grouped into one
citation. Tr. I, 64-65. The first violation that Belcher discovered was that “sufficient burden
was not maintained on the side of the shot toward the dwelling.” Tr. I, 66; SX-13. The burden
was the amount of spoil that was either left in place from the previous shot or solid material that
had not yet been shot. Tr. I, 66-67. There was a calculation based on the diameter of the hole to
determine how much burden is necessary to help prevent flyrock from traveling as far. Tr. I, 6768. Here, the burden and spacing in the ground control plan ranged from 14-17 feet, with a 14foot minimum. Tr. I, 68. The plan states that “any variance from this minimum requires
identification.” Tr. I, 68-69; SX-16. No variance was ever requested. Tr. I, 69.
Too much or too little burden can cause problems with flyrocks. Tr. I, 69-70. Belcher
testified that he believed that the shot was being loaded too quickly, leading to the flyrock
event. Tr. I, 71. There was not sufficient burden maintained on the side toward the homes,
which was a violation of the ground control plan. Tr. I, 71-72. Specifically, in the section
labeled, “Shot Design Parameters,” it states, “[b]urden of spacing ranges will be a minimum of
14 feet on face burden will be maintained.” Tr. I, 72. It also states, “[a]ll blasts will be directed
away from homes.” Tr. I, 72-73. SX-16. Based on his investigation, Belcher believed that there
was less than 14 feet of burden maintained on the side facing houses. Tr. I, 73. Failing to leave
sufficient burden is enough, and often highly likely, to create a flyrock incident. Tr. I, 96, 98.
Belcher testified that this was the most serious violation listed in the citation. Tr. I, 97.
The second violation was in regard to the incomplete video of the shot. The ground
control plan requires a shot to be captured and recorded on video.16 Tr. I, 73; SX-16. The
purpose of the video requirement is to provide the blaster, blasting coordinator, and company
management the opportunity to review blasts. Tr. I, 76. In this instance, the video did not
comply with the requirements because the video was interrupted during the shot when the
camera fell. Tr. I, 73-74; SX-16. As a result, the video only captured approximately 30-40% of
the shot. Tr. I, 77. After reviewing the video, Belcher testified that he noticed rocks projecting
from the holes in the direction of the nearby houses. Tr. I, 77-78. Belcher testified that in his
16

The plan states, “A video camera will be used to monitor each shot and record the area
prior to, during and after the blast.” SX-16, 8.

36 FMSHRC Page 1589

experience, the failure to review a problematic blast that created a flyrock incident would lead
to subsequent flyrock incidents. Tr. I, 99-101. Belcher described how the shots occur quickly in
real time—often within milliseconds of each other—and the ability to review the video at
slower speeds can help evaluate and analyze shot performance. Tr. I, 101. Some sites use
tripods to record video of shots, and Belcher testified that such use would be safer. Tr. I, 123125.
The third violation involved the amount of explosives used. Tr. I, 81-82. The danger of
using too much explosives is that one can over-break the rock and have less control of flyrock.
Tr. I, 102. The ground control plan contained a scale distance formula that required an eightmillisecond delay. Tr. I, 83. However, Belcher found that the delays overlapped each other,
with at least two holes designed not to fire within eight milliseconds.17 Tr. I, 83-84, 88; SX-17.
There was nothing in the ground control plan that would allow Revelation to exceed the normal
amount of explosives based on their use of a seismograph.18 Tr. I, 90.
The blast report listed 354.8 as “Max weight of explosives per eight millisecond
interval,” and 254.9 as the maximum per interval. Tr. I, 91-92; SX-17. Belcher testified that if
the number on the blast report was 419.5, rather than 254.9 as the amended report stated, this
confirmed for him that more explosive was used than allowed. Tr. I, 171-173. Wallen testified
that the maximum weight of explosives per 8 millisecond interval figure of 254.9 figure on the
shot report was the result of a computer malfunction. Tr. I, 231; SX-17. The mistake was
discovered the day after the flyrock by Marty Bashir at the Kentucky Office of Mine Safety and
License Explosive and Blasting. Tr. I, 231-232. Wallen testified that the amended report, which
stated that the maximum weight of explosives per 8 millisecond interval figure of 419.5 was
correct.19 Tr. I, 234; RX-A.
The blaster in charge makes the determination for this number based on one of three
different formulas, based on the distance of the house from the shot. Tr. I, 92. In this case, the
house was 1,036 feet away, so the correct formula would be D over 55 squared. Tr. I, 92. The
scale distance factor was 64.89. Tr. I, 93-94. Belcher arrived at the conclusion that these two
holes did not meet the eight millisecond delay by reviewing the blast record provided by the
company. Tr. I, 135-136.

17

The two holes that Belcher found that discharged without an 8 millisecond delay were
number 1752 and 1760. Tr. I, 134. Wallen disagreed with the Inspector’s assessment concerning
whether two holes had the required 8 millisecond delay. Tr. I, 245-246.
18

The State of Kentucky has such a provision, but MSHA does not. Tr. I, 90.

19

In his testimony, Wallen first stated that the correct figure was 254.9. Then, he stated
that the correct figure was 419. The amended shot report lists 419.5. Tr. I, 232-234; RX-A.

36 FMSHRC Page 1590

Belcher testified that in his experience, excess explosives alone have not resulted in
flyrock. Tr. I, 103. Rather, it usually occurs from a combination of factors such as inadequate
stemming,20 loading cracked holes, insufficient burden, and neglecting to profile the highwall.
Tr. I, 103. However, Belcher testified that if one exceeds the amount of explosives in the
window of time allotted, it could lead to an opportunity to produce a flyrock. Tr. I, 104.
Belcher testified that the insufficient burden was the leading cause of the flyrock event.
Tr. I, 178-179. The filming was a problem because if the operator is not getting an adequate
picture of what is happening with the shots, then adjustments and corrections cannot be made.
Tr. I, 179. Also, two holes going off at one time due to the lack of an eight millisecond delay or
exceeding the maximum charge weight could lead to flyrock. Tr. I, 179.
The combination of the three violations listed in the citation created a situation where
the gravity was highly likely and the injury or illness that could be expected was fatal. Tr. I,
104-105. Belcher testified that the combination of these three violations made the occurrence of
a flyrock event more likely than if only one of these violations were present. Tr. I, 105. Even
flyrock that does not leave the mine property presents a hazard to miners on the property. Tr. I,
106. Belcher testified that the injury to be expected from such an event would be fatal. Tr. I,
107-108.
Belcher testified that Revelation’s negligence stemmed from their directing workers to
remove the spoil in and around the blast. Tr. I, 117. Through interviews at the mine, Belcher
discovered that Austin Powder could not keep ahead of Revelation, so their shots were being
encroached upon.21 Tr. I, 117-119. There was a 50-foot buffer distance that was required. Tr. I,
117-120. Four of the holes that were drilled were not loaded properly. Tr. I, 118. They were
voided, which means that the holes had been loaded out. Tr. I, 118, 121. It was Revelation that
was in charge of loading these holes. Tr. I, 122. Belcher testified that he did not view the
relationship between Austin Powder and Revelation as a mitigating factor because ultimately
Revelation had a responsibility to ensure that Austin Powder did the work correctly. Tr. I, 122.
KENT 2011-1106 & KENT 2011-211-R
Belcher issued Citation No. 8257006 on October 22, 2010 at the S-1 Hunts Branch
Mine. Tr. II, 18; SX-1. The citation was issued in relation to a flyrock incident that occurred on
October 7, 2010. Tr. II, 18-19. The S-1 Hunts Branch Mine is a large surface coal mine. Tr. II,
14-15.
20

Stemming is process of placing material at the top of the hole, so as to prevent rock
from shooting out of a cylindrical hole, like a bullet from a gun. Tr. I, 102-103. Stemming forces
the energy of the blast to break the rock, rather than eject it from the hole. Tr. I, 103.
21

Stanley denied that there were any problems with Revelation encroaching on the burden
area. Tr. I, 209.

36 FMSHRC Page 1591

Dewey Reed was the blaster at the S-1 Mine on October 7, 2010, and Hamilton was on
the property helping Reed.22 Tr. II, 137. Reed was the lead blaster on the shot, Blast No. 651,
but Hamilton was his boss. Tr. II, 138.
Roland Davis was the General Manager at the Hunts Branch S-1 Mines on October 7,
201023. Tr. II, 87. On October 7, 2010, Davis arrived at the mine between 5:00-6:00 am and left
between 5:00-5:30 pm. Tr. II, 92-93. Prior to leaving on that day, Davis went to the shot area
periodically. Tr. II, 93.
Hamilton testified that the shot was shot at 6:51 pm, and a resident called approximately
10 minutes later to say that a rock came off of the out-slope and was at their residence. Tr. II,
146. Hamilton did not see the rock go down the hill from where he was standing, which was
approximately 2,000 feet away. Tr. II, 146. Another Austin Powder employee, Charles Sexton,
thought he saw the rock, so Hamilton immediately went to make a visual observation of the
area. Tr. II, 147. He did not see any evidence that the rock had made any contact with either
catch bench. Tr. II, 147-148. Hamilton sent a driller named Dwayne Endicott over the outslope,
and he reported that he did not see anything. Tr. II, 148.
Hamilton received another call from a mine clerk saying that her mother had another
rock by her residence. Tr. II, 149. Hamilton went to the residence and observed a rock that was
approximately three to four feet in diameter. Tr. II, 149. He made sure that no one was hurt,
and at 7:00 pm called the State Mining Office and Roland Davis. Tr. II, 94, 149.
Hamilton told Davis that a rock had gone over the hill. Tr. II, 94. He further stated that
no one was hurt, there was no damage to property, and that he had made the proper phone calls
reporting the incident. Tr. II, 95. Davis went back to the mine, arriving at approximately 8:008:30 pm. Tr. II, 95. Davis drove up the hollow where the rock had come to rest, spoke with
Hamilton, and then went home. Tr. II, 95.
Belcher received notification of the flyrock incident when he came into work on the
morning of October 8, 2010. Tr. II, 19. He proceeded to conduct interviews with individuals
who worked at the mine site and with residents of nearby homes, visited the mine site at least
22

Dewey Reed is also called “Bruce Reed.” Tr. II, 138.

23

Davis is a certified surface mine foreman in Kentucky, West Virginia, and Virginia. Tr.
II, 89. He is a certified MSHA limited trainer. Tr. II, 89. Davis began his surface mining career
in 1978. Tr. II, 89. He is not a certified blaster. Tr. II, 89-90. In his position as General
Manager, Davis’s duties were to manage the mine costs and mine production, as well as setting
the mine plans. Tr. II, 87-88. At the time of the cited event, Revelation had been in control of
the mine for approximately one year. Tr. II, 88. Prior to Revelation, CAM Mining was the
operator of the mine. Tr. II, 88. Revelation prepares the areas for the blasting company to blast,
however Davis had no involvement with drilling, loading, or detonating. Tr. II, 90.

36 FMSHRC Page 1592

twice, and travelled to the area where the flyrock landed. Tr. II, 20-21. Belcher reviewed a
copy of the ground control plan, the drill log, the video, and the mine’s history. Tr. II, 21-22.
Belcher took photographs and notes, dating from October 8-29, 2010, in order to document his
findings. Tr. II, 22.
After performing his investigation, Belcher found that the mine site was above steep
terrain, there were heavily populated areas below the mine site, and there were at least three or
four different flyrock events in the past. Tr. II, 23-24. This was a “highly sensitive” area that
required a detailed blast remediation plan.24 Tr. II, 24. Such plans are jointly reviewed and
agreed upon by the Commonwealth of Kentucky, the operator’s blasters, and MSHA. Tr. II, 24.
The plan in place at this mine required a catch bench of a specific size. Tr. II, 24.
A catch bench is utilized to catch spoil, rocks, and debris that may be removed from the
top as material is extracted to get to the coal bed. Tr. II, 15-16. Catch benches must be
constructed prior to blasting, and are commonly placed along perimeters, especially in areas
where there is a possibility that the rocks could travel into public roads or residences. Tr. II, 16.
The catch bench requirements must be included in the mine’s ground control plan. Tr. II, 1718. The size of the catch bench necessary is generally determined by an assessment of any past
history, rock sizes, and other catch materials. Tr. II, 16-17. A common size for catch benches is
15 feet wide and 10 feet high. Tr. II, 17.
Belcher found that there were two catch benches that had been constructed in the area
between where the shot was detonated and down to the Alma Seam they were mining down to.
Tr. II, 24, 25. These were less than 10 feet high, with some portions approximately 5 feet high.
Tr. II, 25. The rock that Belcher saw was approximately four and a half by four and a half by
six feet, and weighed approximately eight to nine tons. Tr. II, 25, 48.
The ground control plan was drafted by the company and approved by MSHA on
October 16, 2009. Tr. II, 26, 33; SX-1, 1. It was in place at the mine on October 7, 2010. Tr. II,
26; SX-1, 1. The ground control plan contains a blast remediation plan because of prior flyrock
events. Tr. II, 27-28. Item four of the ground control plan required a 15-foot wide catch bench,
measured from the top of the berm to the highwall, with a 10-foot high berm, at all major
seams, which included Williamson, Thacker, Cedar Grove, and Alma.25 Tr. II, 29; SX-3, 11.
24

The blast remediation plan is also sometimes called the “blasting plan.” Tr. II, 24.

25

Item four of the Blast Remediation Plan states:
4) A 15 foot wide catch bench (measured from the top of the berm to the
high wall) with a 10 foot high berm, will be installed on all major seams
(e.g. Williamson, Thacker, Cedar Grove, & Alma) to be mined at all
times when practical, prior to blasting in the area. The catch bench will
be cleaned prior to the next shot. In the event that a catch bench can’t be
constructed, then items 18-23 [sic] of the Blast Remediation Plan for
Areas where a Catch Bench is not constructed will apply.
(continued...)
36 FMSHRC Page 1593

Belcher testified that this item was violated. Tr. II, 29; SX-3, 11. Belcher testified that this
requirement was a minimum size requirement, which the operator could exceed. Tr. II, 30.
Item four of the plan states that if a catch bench cannot be constructed as required, then
items 18-23 of the blast remediation plan apply.26 Tr. II, 31-32, 38; SX-3, 11. None of these

25(...continued)

SX-3, 11. After the flyrock event, Revelation removed the phrase “when practical” from item
four. Tr. II, 118.
26

The plan mistakenly references items 18-23, but it is clear from the document that the
correct items are 19-24, under the heading, “Blast Remediation Plan for Areas where a Catch
Bench is not Constructed.” Tr. II, 32; SX-3, 12. Items 19-24 state:
19) In protection zone areas (see page 17), for the first breakdown shot which has a
maximum depth of 25’, the first row of holes will be pre-split or break line drilled and
located a minimum of 20’ from the crop. If company elects to, the pre-split can be drilled
to the coal.
20) For the first breakdown shot of the protection zone, a complete free face
(excess burden removed) will be maintained. The face and the direction of the blast are to
be oriented away from the control structure and towards the open pit.
21) The outside 2 rows of holes in the protection zone will be decked as shown on
the attached diagrams. It should be noted that the diagrams are typical and that the actual
shot will be based on field conditions. A minimum of 10’ true burden will be maintained
from the pre-split to the first row of production holes.
22) The protection zone is not considered a “No Spoil Area.” A “No Spoil Area” is
any location of a shot where material, rocks, and spoil cannot be cast, pushed, or ejected
onto the down slope beyond the designated safety bench.
23) All shots within the protection zone will be designed to minimize the back
pressure toward the no spoil side.
24) The out slope in the protection zone will be videotaped prior to and directly
after the shot to monitor the change in cracks or hill seams. After 2-3 shots, if the out
slope visibly does not show that it is being stressed by the shots and also if decking is
causing secondary blasting due to improper breakage (e.g. unmanageable rock sizes) or
causing unsafe ragged walls, then the shot deck will be evaluated and changed with the
approval of DMRE.
SX-3, 12.

36 FMSHRC Page 1594

items allow Revelation to build two catch benches of smaller height and width in lieu of the one
required in item four. Tr. II, 32. Revelation did not comply with the alternate provisions set
forth in items 19-24. Tr. II, 38.
Hamilton discussed the catch benches with general manager, Roland Davis, and
foreman, Joey Branham, at Revelation. Tr. II, 140. Hamilton testified that Revelation had
exceeded the requirements of the ground control plan because the two safety benches combined
were greater than 15 by 10 feet. Tr. II, 142. Hamilton believed that two smaller benches were
better than one larger bench. Tr. II, 143.
Davis testified that he and Hamilton read the ground control plan and interpreted item
four as requiring a 15 by 10 foot catch bench if possible. Tr. II, 113. He testified that they then
interpreted the following sentence requiring alternative procedures to only be applicable if no
catch bench could be constructed.27 Tr. II, 114. He therefore concluded that since they could
build two 10 by 5 foot catch benches, these would be allowable.28 Tr. II, 114. He further
testified that after “intense discussions” on the matter, they determined that the two smaller
catch benches would be safer than one larger catch bench. Tr. II, 114. Davis did not believe
that a 15 by 10 foot catch bench would have made contact with the rock. Tr. II, 119. They built
the first catch bench just below the Upper Alma seam and the other one approximately 25-30
feet below it. Tr. II, 115. Davis testified that he did not need to contact MSHA about the catch
bench issue. Tr. II, 127.
Hamilton testified that he did not believe that a 15 by 10 foot bench would have made a
difference. Tr. II, 156. He also testified that he understood item four of the plan to mean that
they were permitted to construct two smaller catch benches “as long as we were within the 15by-10 measurements.” Tr. II, 161.
On October 7, 2010, the upper Alma coal seam was being mined, which is a major seam
that required a 15 by 10 foot catch bench. Tr. II, 33; SX-3, 11. Belcher testified that the flyrock
event that occurred at the mine showed why two small catch benches were not as effective as
one larger catch bench. Tr. II, 38. The boulder travelled approximately 400-500 feet in
elevation on a steep terrain, exhibiting a “tremendous amount of force,” and the catch benches
in place were not large enough to catch the rock. Tr. II, 39. Belcher testified that a 15-foot wide
catch bench with a 10-foot high berm would have been capable of catching the boulder. Tr. II,
39. Similarly, he believed that if Revelation had complied with the alternate provisions outlined
in items 19-24, the boulder would have been stopped. Tr. II, 39-40. Specifically, the alternate
provisions required that Revelation stay 20 feet from the outcrop, take a cut down to the coal
seam, and maintain the outer portions. Tr. II, 39; SX-3, 12. This would have served as a
27

167.

The alternate procedures listed in items 19-24 could have been done at the mine. Tr. II,

28

In other areas where it was not possible to construct a 15 by 10 foot catch bench,
Revelation followed the blast remediation plan. Tr. II, 116.

36 FMSHRC Page 1595

highwall that would prevent rocks and other spoil materials from traveling over the hill. Tr. II,
40.
The danger of not constructing an adequately-sized catch bench is that a large rock
rolling down the hill would not be captured, and would roll into an area where there are homes
and public roads, posing a risk of injury or death to individuals. Tr. II, 47. Belcher testified that
with two smaller catch benches instead of one larger catch bench, it was highly likely that an
injury would occur. Tr. II, 47. He reached this conclusion because the boulder would not be
caught by the smaller catch benches, and there were multiple families residing in the area where
the boulder ended up. Tr. II, 47-48. If an individual were impacted by the boulder at issue here,
they would suffer a fatal injury. Tr. II, 49.
The elevation that the rock travelled was approximately 475 feet, and the overall
distance that the rock travelled was between 800-1,000 feet. Tr. II, 58-59. The rock took a path
down the hill, at times reaching within 50 feet of several homes, before hitting the asphalt road
and coming to rest. Tr. II, 57. The impact of the rock hitting the county road created a
significant divot.29 Tr. II, 57-58; SX-4, 25-26.
Taking into account the prior history and the risks involved with mining in steep terrain
above populated areas, Belcher determined that Revelation exhibited high negligence. Tr. II,
60-61. Further, the ground control plan provided specific provisions to prevent such an event
from occurring, which Revelation chose not to follow. Tr. II, 61.
All three prior events at the mine took place prior to Revelation taking over control of
the mine in October 2009. Tr. II, 79-80. The purchaser of a mine inherits the ground control
plan because the history of the site’s prior occurrences is highly relevant to the plan. Tr. II, 6162. The blast control plan contains the history of previous events at the mine, so that a new
operator would be aware of these events. Tr. II, 63-64. The blast control plan at issue in this
case mentioned the previous incident on January 31, 2009. Tr. II, 64; SX-3, 11.
Belcher testified that the operator could have made an appointment to speak with him
about amending their ground control plan. Tr. II, 65-66. Prior to October 7, 2010, no one at
Revelation contacted Belcher about how to interpret item 4 of the plan or anything regarding
29

Davis also participated in an investigation, which consisted of assisting or
accompanying the Kentucky state inspectors. Tr. II, 96. Davis disagreed with Belcher’s
conclusion as to the path of the rock, stating that it went 130-140 feet to the right, and did not
make contact with the benches. Tr. II, 98-111.
After the evidence had been reviewed, Davis was interviewed by MSHA and the
Kentucky investigators. Tr. II, 111. MSHA raised the 15 by 10 foot catch bench issue, and
Davis responded that Revelation tried to build such a catch bench in October 2009. The outslope was too steep, and there was no dirt material, so building the 15 by 10 foot catch bench
was not possible. Tr. II, 112.

36 FMSHRC Page 1596

catch benches. Tr. II, 66-67. However someone at Revelation had contacted MSHA in order to
discuss amending a provision of the plan that dealt with drill bit diameters. Tr. II, 67.
Belcher marked the citation as an unwarrantable failure to comply with the ground
control plan because the operator was aware of the conditions and there was a deliberate
decision to build two smaller benches rather than the one larger one as required by the plan. Tr.
II, 67-68.
ANALYSIS
1. Citation No. 8257015 was Properly Issued for a Violation of 30 C.F.R. §77.1000
Citation No. 8257015 was a 104(d)(1) citation issued on December 29, 2010. It was
marked Highly Likely, Fatal to 1 person, High Negligence, and Unwarrantable Failure. The
Citation states:
The Operator has failed to follow their acknowledged ground control plan to prevent a
flyrock event that occurred on December 21, 2010 during blasting operations. The blast
was identified as shot #255 and was detonated at 9:01 am according to the shot report.
A blast remediation plan outlining specific blasting safety pre-caution measures had
been previously incorporated into the ground control plan and acknowledged on April
26, 2010. A previous flyrock event had occurred at this same mine on November 19,
2008. The purpose of the acknowledged ground control and blasting safety pre-cautions
is to prevent a similar occurrence of flyrock. The blasting plan contained in the
acknowledged ground control plan for this shot was not followed as follows:1)
Sufficient burden was not maintained on the side of the shot toward the dwellings to
insure the blast was directed away from the occupied dwellings that were impacted by
the flyrocks.2) The shot detonated on 12-21-10 was not completely video recorded
during and after the shot as outlined in the plan.3) The maximum amount of explosives
allowed to be detonated within an 8 millisecond delay was exceeded. The blast was
detonated in rock strata between the Thacker and Cedar Grove coal seams identified as
Pit #19, causing 4 separate rocks measuring between 4 x 4 and 13 x 13 to be cast from
the blast and land in the yards of two residences located on Big Blue Springs of
Blackberry Creek. One of the smaller rocks, measuring approximately 4 by 4 struck the
window of a residence occupied by Gary Hatfield. This type of practice presents a high
degree of risk of serious injury or death to residents living below the mine. The mine
Operator has engaged in aggravated conduct constituting more than ordinary negligence
by not following their acknowledged ground control plan. This violation is an
unwarrantable failure to comply with a mandatory standard.
SX-13.
The Citation references 30 C.F.R. §77.1000, which states:

36 FMSHRC Page 1597

The Citation references 30 C.F.R. §77.1000, which states:
Each operator shall establish and follow a ground control plan for the safe control of all
highwalls, pits and spoil banks to be developed after June 30, 1971, which shall be
consistent with prudent engineering design and will insure safe working conditions. The
mining methods employed by the operator shall be selected to insure highwall and spoil
bank stability.
The Secretary argues that Revelation violated the ground control plan by failing to keep
at least 14 feet of burden in front of the shot; by failing to fully record the blast after the video
stopped during the shot; and by exceeding the amount of explosives which could be detonated
within eight milliseconds.
The Respondent asserts that a flyrock incident alone is not enough to sustain a citation,
and that the Secretary must prove the specific grounds of the citation. The Respondent argues
that it maintained the proper amount of burden, and the inspector’s belief that insufficient
burden was used was based on hearsay statements from an unnamed informant, making it
unreliable. The Respondent further argues that the Secretary did not submit sufficient evidence
that the amount of explosives used exceeded the amounts permitted in the plan.
Based upon the totality of the evidence presented at hearing, the Secretary has met its
burden of proving that Revelation violated §77.1000 by failing to follow its ground control plan
in three key respects.
First, Respondent failed to keep at least 14 feet of face burden as required by the ground
control plan. This requirement was to ensure that “all blasts will be directed away from homes.”
Tr. I, 68; SX-16. Belcher conducted a thorough investigation, which involved numerous
interviews, visits to the sites, and reviews of plans, and determined that the minimum burden was
not being maintained. Tr. I, 50-53, 64-65, 108-112. I credit Belcher’s informed testimony that
his investigation revealed that the materials were being loaded out too quickly and the shots were
being encroached upon. Tr. I, 71, 117-119. As evidence of this encroachment, Belcher pointed
to four holes that were drilled but not loaded. Tr. I, 117-118. Failing to leave sufficient burden
makes it highly likely that a flyrock event, like the one that occurred in this case, will happen. Tr.
I, 96, 98.
Second, the Respondent failed to fully record the blast, as required by the ground control
plan. The plan stated, “A video camera will be used to monitor each shot and record the area
prior to, during and after the blast.” SX-16, 8. Shots occur quickly, often over the course of only
a few seconds, so recording the shot provides the operator the opportunity to review the shot. Tr.
I, 76. The video evidence submitted at hearing, as well as the testimony, shows that during the
recording of the shot, the camera switched off. Tr. I, 73-74; SX-16. Belcher estimated that the
video only captured 30-40% of the shot. Tr. I, 77.
The Respondent argued that even though the camera accidentally shut off, it still
complied with the requirements in the ground control plan. It argues that the ground control plan
requires taping before, during, and after the shot, but does not provide specific time frames for

36 FMSHRC Page 1598

taping before and after the shot. Shot 255 consisted of 30 blasts, spaced eight milliseconds apart,
so that the shot took less than one quarter of a second. Therefore, Respondent argued that even
though the video shut off after a few seconds, there was no violation of the plan. Resp. PostHearing Brief, at 13-15.
Respondent’s hypertechnical understanding of the taping provision in the ground control
plan is unreasonable. The purpose of the taping requirement is to allow blasters and other mine
personnel the opportunity to review the shot. This includes reviewing the conditions before,
during, and after the shot. The speed at which a shot occurs further emphasizes the need for a
full video of the shot, which includes the period before and after. According to Respondent’s
interpretation of the plan, a half-second video would comply. However, such a video would
provide little informative value in reviewing the shot. The ground control plan requires a
reasonable taping of the area before and after the shot, such that the video may be used for the
purposes it was intended. In this instance, the video shut off prior to a reasonable taping of the
period after the shot. Therefore, I find that the Respondent violated this provision of the plan.
Third, the Respondent violated the ground control plan by exceeding the amount of
explosives that could be detonated within each eight millisecond interval. The ground control
plan contained a scale distance formula that required an eight-millisecond delay. Tr. I, 83. After
reviewing the blast record provided by the company, Belcher determined that two of the holes
overlapped each other, thereby not complying with the eight-millisecond delay requirement. Tr.
I, 83-84, 88, 135-136; SX-17. At hearing, the issue of the correct maximum weight of explosives
per eight millisecond interval was in dispute. Various witnesses and documents represented that
the number was 254.9, 419, and 419.5. Tr. I, 91-92, 171-173, 231-234; SX-17. The
discrepancies between the original and corrected blast reports appeared to be largely irrelevant,
as both blast reports provided that “Max. Allow. Chg. Wt. per 8 ms w/o Seismograph” was 354.8
pounds. SX-17; RX-A. No seismograph was permitted under the plan, making the 354.8 figure
the appropriate one. This figure corroborates Belcher’s analysis and conclusion.
Any one of these violations of the ground control plan would constitute a violation of
§77.1000. The Secretary has more than met its burden in proving that the combination of the
three was a violation of the regulation.
The Respondent’s repeated admonitions that the hearsay evidence of an anonymous
miner is inherently unreliable are misplaced. See e.g. Resp.’s Post-Hearing Brief, at 11. The
Commission rules explicitly allow for the maintenance of anonymity for miner informants. 29
C.F.R. §2700.61. “The purpose of the privilege is to protect the public interest by maintaining a
free flow of information to the government concerning possible violations of the law and to
protect persons supplying such information from retaliation.” Bright Coal Co., Inc., 6 FMSHRC
2520, 2522-2523 (Nov. 1984). Furthermore, the Commission’s rules explicitly allow for the
admission of hearsay evidence, when such evidence is “material and relevant.” Mid-Continent
Resources, Inc., 6 FMSHRC 1132, 1135 (May 1984); see also REB Enterprises, Inc., 20
FMSHRC 203, 206 (March 1998); 29 C.F.R. §2700.63. Moreover, the Commission has stated
that:
[P]roperly admitted hearsay testimony, and reasonable inferences drawn from it, may
constitute substantial evidence upholding a judge's decision if the hearsay testimony is

36 FMSHRC Page 1599

surrounded by adequate indicia of probativeness and trustworthiness. Hearsay
testimony “may be treated as substantial evidence, even without corroboration, if, to a
reasonable mind, the circumstances are such as to lend it credence.”
Id. at 1135-1136 (citations omitted). I find that the miner informant’s hearsay information told
to Belcher was both probative and trustworthy. To exclude it for the reasons provided by
Respondent would eviscerate the miner informant rule.
2. The Violation was Significant & Substantial
I further find that the conditions were Significant and Substantial in nature. S&S is
described in section 104(d)(1) of the Act as a violation “of such nature as could significantly and
substantially contribute to the cause and effect of a coal or other mine safety or health hazard.”
30 U.S.C. § 814(d)(1). A violation is properly designated S&S “if, based upon the particular
facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed
to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat'l Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981).
As is well recognized, in order to establish the S&S nature of a violation, the Secretary
must prove: “(1) the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard - that is, a measure of danger to safety - contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan.
1984); accord Buck Creek Coal Co., Inc., 52 F. 3rd. 133, 135 (7th Cir. 1995); Austin Power Co.,
Inc. v, Sec'y of Labor, 861 F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).
It is the third element of the S&S criteria that is the source of most controversies
regarding S&S findings. The element is established only if the Secretary proves “a reasonable
likelihood the hazard contributed to will result in an event in which there is an injury.” U.S. Steel
Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based on
the particular facts surrounding the violation and must be made in the context of continued
normal mining operations. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S.
Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984)). The Commission has provided
additional guidance: “We have emphasized that, in accordance with the language of section
104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be
significant and substantial.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984);
U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
Further, “The Secretary need not prove a reasonable likelihood that the violation itself
will cause injury.” and “the absence of an injury-producing event when a cited practice has
occurred does not preclude a determination of S&S” Cumberland Coal Resources, LP, 33

36 FMSHRC Page 1600

FMSHRC 2357, 2365 (Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals, Inc., 32
FMSHRC 1257, 1280-81 (Oct. 2010); Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005);
and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)). The Commission and
Courts have observed that the opinion of an experienced MSHA inspector that a violation is S&S
is entitled to substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79
(Dec. 1998); Buck Creek Coal, Inc., v. MSHA, 52 F.3d 133, 135-36 (7th Cir. 1995).
The first element of Mathies—the underlying violation of a mandatory safety standard—
has been clearly established. As to the second element of Mathies—a discrete safety hazard, that
is, a measure of danger to safety, contributed to by the violation—has also been clearly
established by the record. As discussed supra, the cited condition contributed to the danger of a
flyrock incident.
I find that the third element of the Mathies test—a reasonable likelihood that the hazard
contributed to will result in an injury—has been satisfied here. The hazard of large rocks flying
into a populated area and a public road was likely to lead to an injury. Under Mathies, the fourth
and final element that the Secretary must establish is that there is a reasonably likelihood that the
injury in question will be of a reasonably serious nature. The type of injury caused by a flyrock
making contact with an individual is death.
Respondent argues that a violation can only be found to be S&S if it affected the health
and safety of miners. In the instant case, Respondent argues that no miners were in danger, and
the Secretary presented no evidence that flyrock came anywhere near where a miner or other
employee of the mine could have been injured. Respondent argues that the Secretary failed to
present evidence showing how the inadequate taping would reasonably result in a serious
injury.
Respondent’s argument that a violation may only be S&S if it can lead to a serious injury
of a miner, is both bizarre and incorrect. While it is true that Congress passed the Mine Act to
ensure the health and safety of miners, the Commission has never interpreted S&S in such a
narrow fashion so as to limit it to the health and safety of miners. Both §104(d) and the seminal
Commission cases that developed the criteria for S&S spoke only of the type of injury, not the
status of the individual who suffered such injury. See Mathies, 6 FMSHRC 1 (Jan. 1984),
Cumberland Coal Resources, LP, 33 FMSHRC 2357 (Oct. 2011); Musser Engineering, Inc. and
PBS Coals, Inc., 32 FMSHRC 1257 (Oct. 2010). One need not come up with an example that
illustrates the absurdity of this position, because this case does so in spades. To say that a
violation that placed persons who resided in the path of flyrocks at grave risk was not significant
and substantial because they may not meet the statutory definition of miners is absurd. The
Mine Act makes no such distinction when persons lives are at risk.

36 FMSHRC Page 1601

3. The Violation was the Result of High Negligence and Unwarrantable Failure
In the citation at issue, Belcher found that the violations were the result of high
negligence and an unwarrantable failure to comply with the standard. High negligence is
described as when “[t]he operator knew or should have known of the violative condition or
practice and there are no mitigating circumstances.” 30 C.F.R. §100.3(d), Table X. Conversely,
moderate negligence is shown when “[t]he operator knew or should have known of the violative
condition or practice, but there are some mitigating circumstances.” Id. Low negligence is
served for situations where there are “considerable” mitigating circumstances. Id.
In the instant case, Revelation was on notice that there had been previous flyrock events
at the mine. The S-4 Netley Branch Mine had a Blast Remediation Plan as part of the Ground
Control Plan, which indicated that there had been a previous flyrock accident. SX-16; Tr. I,
126-127. Furthermore, Revelation was on notice that strict compliance with the blast
remediation plan was necessary in order to prevent future flyrock accidents. Tr. I, 127, 180.
The plan was explicit in its requirements that sufficient burden be left in front of the
shot, that the shot be videotaped, and that specific amounts of explosive be used. Tr. I, 66, 73,
81-82; SX-13. Despite being on notice of these requirements, Revelation violated the plan in
each respect. The Respondent presented some evidence that Wallen fell while trying to
videotape the shot because it was slick where he was standing. Tr. I, 251. However, the
Respondent took no precautions to avoid this possibility, such as using a tripod, despite the
adverse weather conditions that made a fall likely. Even laypersons know that attempting to
hold a video camera by hand can produce images flawed by motion. Wallen’s lack of concern
for producing a stable, clearly focused video of sufficient length to be usable for post-shot
analysis directly resulted in a violation. Furthermore, Revelation presented no mitigating
circumstances regarding the other two violations that make up this citation. Revelation’s choice
to hire a blasting contractor does not mitigate its negligence, as the mine operator bears ultimate
responsibility to ensure that the ground control plan is followed at all times. See Speed Mining,
528 F.3d 310 (4th Cir. 2008); Buffalo Mining Co., 1 FMSHRC 1740 (Oct. 1979) (ALJ).
Having found the requisite knowledge, the next issue is whether there were any
mitigating circumstances. I find that none existed. Therefore, I find the Secretary’s designation
of “high” negligence appropriate.
The Commission has recognized the close relationship between a finding of
unwarrantable failure and a finding of high negligence. San Juan Coal Co., 29 FMSHRC 125,
139 (Mar. 2007) see also Consolidation Coal Company, 22 FMSHRC 340, 353 (2000) (holding
that if there is mitigation, an unwarrantable failure finding is inappropriate). Emery Mining
Corp., defines an unwarrantable failure, as “aggravated conduct constituting more than ordinary
negligence.” Emery Mining Corp., 9 FMSHRC 1997, 2002 (Dec. 1987). Such conduct may be
characterized as reckless disregard, intentional misconduct, indifference, or serious lack of
reasonable care. Id. at 2004; see also Buck Creek Coal, 52 F.3d 133, 135-136 (7th Cir. 1995).

36 FMSHRC Page 1602

Whether conduct is “aggravated” in the context of unwarrantable failure is determined by
looking at all the facts and circumstances of each case to see if any aggravating factors
exist, including (1) the extent of the violative condition, (2) the length of time that the
violative condition existed, (3) whether the violation posed a high degree of danger, (4)
whether the violation was obvious, (5) the operator's knowledge of the existence of the
violation, (6) the operator's efforts in abating the violative condition, and (7) whether the
operator had been placed on notice that greater efforts were necessary for compliance.
Manalapan Mining Co., 2013 WL 754106, *4 (Feb. 2013), citing IO Coal, 31 FMSHRC 1346
(Dec. 2009). While each factor does not need to be present in order to find unwarrantable
failure, all factors must be considered. Id.
The cited condition involved three violations of the plan, each of which was in place to
prevent a flyrock incident. Though they occurred quickly, these three violations in a single shot
was somewhat extensive. The factor of the length of time of the violation is inapplicable here,
as shots occur quickly, and any violations would occur just as quickly.
The violation at issue here posed a high degree of danger. The inspector testified that
each of these three violations increased the likelihood of a flyrock accident, which occurred in
this instance. Tr. I, 103-104, 178-179. The flyrocks from this site were large in size and
travelled to areas where people live and travel. Tr. I, 46. Additionally, the operator had been
placed on notice that greater efforts were necessary for compliance. As noted supra, there were
previous flyrock events at this site, and the mine was on a Blast Remediation Plan to prevent
future flyrock accidents. Furthermore, this mine site was previously cited for flyrock events,
and past citations are relevant to the issue of whether Respondent had notice. IO Coal, 31
FMSHRC at 1353-1355. Respondent argued that these citations were issued prior to its taking
over the mine, however such arguments do not negate the notice that these citations provided.
Flyrocks can cause fatal injuries, yet Respondent failed to strictly follow their Ground Control
Plan as required. The operator took no efforts in abating the violative condition prior to the
flyrock incident and citation. I find the unwarrantable failure determination to be correct.
4.

The §103(k) Order No. 8257014 was Properly Issued

Issuance of the 103(k) Order was necessary and proper in this instance. Section 103(k)
of the Act provides, in relevant part, that “[i]n the event of any accident occurring in a coal or
other mine, an authorized representative of the Secretary, when present, may issue such orders
as he deems appropriate to insure the safety of any person in the coal or other mine.” 30 U.S.C.
§813(k).
In a companion case to the instant case, the Commission confirmed that a large rock
leaving a mine and landing in a residential area, with no injuries, constituted an “accident” for
purposes of issuing a 103(k) Order. Revelation Energy, 2013 WL 6792685 (Nov., 2013). The
Commission rejected the operator’s arguments that the definition of “accident” in §103(k) was

36 FMSHRC Page 1603

limited to the more narrow definition of “accident” in the definitions provided in 30 C.F.R.
§50.2(h), stating that the latter definition only applied for reporting purposes. Id. at *4.
Section 50.2 plainly limits its application to terms “used in this part,” that is, Part 50 of
MSHA's regulations (the reporting regulations). 30 C.F.R. § 50.2. In contrast, the
definition of ““accident” in section 3(k) applies to the entire Mine Act, as section 3 of the
Mine Act specifically states that the definition of the term “accident” set forth in
paragraph (k) applies “[f]or the purpose of this Chapter ….” 30 U.S.C. § 802. Thus,
section 3(k) is the applicable provision for purposes of determining what constitutes an
“accident” under section 103(k).
Id. The Commission “easily” concluded that such a flyrock event was an “accident” for purposes
of §103(k). The Commission’s decision is directly on point and controlling for this case.
5. Citation No. 8257006 was Properly Issued for a Violation of 30 C.F.R. §77.1000
Citation No. 8257006 was a 104(d)(1) citation issued on October 22, 2010. It was
marked Highly Likely, Fatal to 1 person, High Negligence, and Unwarrantable Failure. The
Citation states:
The Operator failed to follow their acknowledged ground control plan to prevent a
flyrock event that occurred on October 7, 2010, during blasting operations. A blast
remediation plan outlining specific blasting safety pre-caution measures was
incorporated into the ground control plan and acknowledged on March 17, 2009 in
response to a flyrock event that occurred on January 31, 2009. The purpose of that
acknowledged plan was to prevent a similar occurrence of flyrock. Two smaller than
designed safety catch benches (5 high x 10 wide) were constructed, instead of the
designed size of 10 high x 15 wide safety catch bench, prior to the October 7th blast.
The ground control plan states that when the catch bench cannot be constructed, then a
solid 20 foot wide berm will be left at the outcrop edge of the pit. Rolland Davis,
General Mine Manager stated that he was familiar with the acknowledged ground
control plan and knew what size the safety catch bench should have been before blasting
operations occurred. The blast was detonated in an area above the Upper Alma coal
seam, causing a large rock measuring 4.5 x 4.5 x 6, to leave the blast site, and roll down
the hillside, jump the safety catch benches, leave the mine property and continue rolling
down the hillside until crossing a county road (Old Shoe Branch of Barrenshee Creek)
and landing in the creek. The large rock narrowly missed striking two residences by
approximately 40 to 50 feet. This type of practice presents a high degree of risk of
serious injury or death to residents living below the mine. The mine Operator has
engaged in aggravated conduct constituting more than ordinary negligence by not
following their acknowledged ground control plan. This violation is an unwarrantable
failure to comply with a mandatory standard.

36 FMSHRC Page 1604

SX-1.
The Citation references 30 C.F.R. §77.1000, which as discussed supra, requires an
operator to follow the ground control plan.
The Secretary contends that item four of ground the control plan required Revelation to
build a 15-foot by 10-foot catch bench, when practical. And in the instant case, it was practical.
As such, Revelation’s construction of two 10-foot by 5-foot catch benches in lieu of one 15foot by 10-foot catch bench was a violation of the plan. If the larger bench was not practical,
then the Secretary contends that the plan required Revelation to follow the alternate provisions
laid out.
The Secretary argues that the Respondent’s failure to comply with the ground control
plan was highly likely to result in fatal injury to at least one person. This is due to the fact that
the terrain below the S-1 Hunt’s Branch Mine is quite steep and slopes sharply towards the
homes below, where many residents live. Further, the Secretary argues that the violation was
S&S because an eight-ton flyrock is highly likely to result in fatal injury to persons in proximity
to it.
The Secretary argues that Revelation was highly negligent in failing to comply with
their blast remediation plan because Revelation knew the mine had a propensity to produce
large flyrock, knew that the mine sat above homes and a public road, and still did not comply
with the catch bench requirements of the plan. The Secretary argues for the same reasons that
the violation was an unwarrantable failure, adding that Revelation had not been in compliance
for almost a year.
With regard to Citation No. 8257006, the Respondent argues that the ground control
plan only required it to build a 10 by 15 foot catch bench if practical. Relying on the indefinite
article in the sentence, Respondent further argues that the alternative procedures were only
necessary if no catch bench could be constructed. The Respondent also argues that even if a 10
by 15 foot catch bench had been constructed, there is no guarantee that such a catch bench
would have been able to stop the flyrock at issue.
Respondent argues that the violation was not S&S because the 10 by 15 foot catch bench
would not have caught the flyrock, meaning that the two smaller catch benches did not make it
likely that a serious injury would occur. Respondent argues that the violation was not high
negligence or unwarrantable failure because it was either due to a reasonable interpretation of
the plan, or an honest mistake. For these reasons, Respondent argues that if the violations are
upheld the penalties should be reduced and modified to 104(a) citations, with low negligence
and no S&S designation.
Based upon the totality of the evidence presented at hearing, the Secretary has met its
burden of proving that Revelation violated §77.1000 by failing to follow its ground control plan
in constructing its catch bench.

36 FMSHRC Page 1605

Paragraph four of the Blast Remediation Plan, which is quoted in full supra, states in
relevant part that a “15 foot catch bench...with a 10 foot high berm, will be installed on all major
seams...to be mined at all times when practical, prior to blasting in the area.” SX-3. The
provision further states that “[i]n the event that a catch bench cannot be constructed, then items
[19-24] of the Blast Remediation Plan for Areas where a Catch Bench is not constructed will
apply.” SX-3. The plain language of the plan, combined with the inspector’s testimony, makes
it clear that the Respondent was required to build a 10 by 15 foot catch bench if it was practical
to do so. If the conditions made the construction of such a catch bench impractical, then the
Respondent was required to follow the alternate procedures detailed in the plan. Rather than
building a 15 by 10 foot catch bench at the Upper Alma seam, which is one of the “major seams”
specified in the plan, Respondent constructed two catch benches that measured between five and
10 feet high and five feet wide. Tr. II, 25, 114.
Respondent’s interpretation of the plan is unreasonable as it essentially makes much of
the plan meaningless. The Respondent argued that it was impractical to construct a 10 by 15
foot catch bench below the Upper Alma Seam. Tr. II, 119, 124-128, 144. Therefore, instead of
following the alternate procedures, or consulting MSHA about its alternate interpretation, it
chose to build two five by ten foot catch benches. The Respondent argued that because the plan
specified that the alternative procedures should be followed “in the event that a catch bench
can’t be constructed,” rather than stating “in the event that the catch bench can’t be constructed,”
the alternate procedures were only required when no catch bench could be constructed.30
(emphasis added.) Relying entirely on the use of the indefinite article (“a”), rather than the
definite article (“the”), Respondent argued that it took this course of action because it interpreted
the alternate procedures in the plan as only being required in no catch bench could be
constructed.
Based on this interpretation, Respondent was free to determine the practicality of
building the required catch bench, and if it determined that it was impractical, it could build
whatever size catch bench it so desired. The Respondent’s argument transforms the size
requirement in the plan to a mere suggestion that can easily be ignored so long as some sort of
catch bench was constructed.31 The Respondent cites the general principal of contract law that
the interpretation “which gives meaning to all words and provisions of a contract is favored.”
Eastern Gas and Fuel Associates v. Mid-west Raleigh, Inc., 374 F.2d 451, 454 (4th Cir. 1967).
However, the Respondent’s contorted attempts to give meaning to a single indefinite article
essentially negates the meaning of the entire provision.32 I do not credit Respondent’s witnesses
30

Respondent similarly suggested that the provision should have read “such catch bench.”

31

Respondent focused much of its evidence and argument at hearing in trying to prove
that construction of a 15 by 10 foot catch bench was impractical. However, after the citation, a
15 by 10 foot catch bench was constructed. Tr. II, 82-83.

36 FMSHRC Page 1606

essentially negates the meaning of the entire provision.32 I do not credit Respondent’s
witnesses as to their contemporaneous interpretation of the provision. If anything, this
interpretation appeared to be a post hoc rationalization for the open flouting of a plan provision.
I find that the provisions of the ground control plan gave Respondent two options. The
first option was that it was required to construct a 15 by 10 foot catch bench, if conditions made
such a catch bench practical to construct. If it was impractical to construct a 15 by 10 foot catch
bench, then Respondent was required to follow the alternate procedures in the plan. It could not
simply construct one or several smaller catch benches to suit its convenience.
Respondent’s second argument concerning the path of the flyrock is similarly unavailing.
At hearing, Respondent presented testimony of how the flyrock followed a different path than
that presumed by the inspector and that a 10 by 15 foot catch bench would not have been any
more successful at stopping the flyrock that was projected on October 7, 2010. Tr. II, 102, 105.
Section 77.1000 does not require that a flyrock occur for the regulation to be actionable. The
regulation simply requires that an operator follow the ground control plan, and any failure to do
so is a violation of the regulation. I find the inspector’s testimony that his investigation
concluded that the flyrock followed such a path as would have been stopped by the 10 by 15 foot
catch bench to be plausible. However even if this were not the case, and Respondent proved that
the flyrock would not have been stopped by the required catch bench, it’s failure to construct the
catch bench would still have been a violation of the regulation.
6. The Violation was Significant & Substantial
I further find that the conditions were Significant and Substantial in nature. The first
element of Mathies—the underlying violation of a mandatory safety standard—has been clearly
established. As to the second element of Mathies—a discrete safety hazard, that is, a measure of
danger to safety, contributed to by the violation—has also been clearly established by the record.
The 15 by 10 foot catch bench required in the plan, as well as the alternate procedures, were
intended to prevent flyrock from reaching public areas. Failure to construct such obstacles to
flyrock contribute to the hazard of a large flyrock entering public areas and making contact with
individuals.
I find that the third element of the Mathies test—a reasonable likelihood that the hazard
contributed to will result in an injury—has been satisfied here. The hazard of a rock several feet
in diameter and weighing several tons flying into a populated area and a public road was likely
to lead to an injury. Under Mathies, the fourth and final element that the Secretary must establish
is that there is a reasonably likelihood that the injury in question will be of a reasonably serious
nature. The type of injury caused by a flyrock making contact with an individual is death.
32 Respondent’s argument that every letter and word of the plan must be accepted in only its

strict literal meaning, without consideration of the purpose of each provision or the possibility of
mistake, is further weakened by the fact that the section outlining the alternative procedures had
an enumerating error.

36 FMSHRC Page 1607

7. The Violation was the Result of High Negligence and Unwarrantable Failure
In the citation at issue, Belcher found that the violations were the result of high
negligence and an unwarrantable failure to comply with the standard. The preamble to the Blast
Remediation Plan stated that a flyrock accident had occurred at the mine in 2009 causing a large
boulder and another rock to project off the mine property. SX-3, 9; Tr. II, 27-28, 62-64. The
inspector testified that the mine site had at least three or four different flyrock events in the past.
Tr. 23-24. Therefore, Revelation was aware that the mine had a propensity to produce large
flyrocks. Furthermore, Revelation knew that the mine was located above residences and a
county road, and that the terrain between the mine and these areas was very steep. Tr. II, 23-24,
28, 57-59. It was precisely because of these conditions and the mine’s history that the Blast
Remediation Plan specified that Revelation was required to construct a 15 by 10 foot bench or
take alternate procedures. SX-3, 16; Tr. II, 24, 37. In spite of this information, Revelation
constructed two smaller catch benches, at the minimum size that their equipment could
construct them. Tr. II, 61, 68, 130-132.
Revelation argued that it employed a reasonable interpretation of its ground control
plan. However, as I have found that interpretation to be unreasonable, I do not find that it
constituted a mitigating circumstance. If Revelation believed at the time that its interpretation
of the plan was reasonable, then it should have called MSHA and asked for advice. Tr. II, 6669. Alternately, if it believed that its method of building two smaller catch benches was safer,
then it should have sought to modify that portion of the plan. Tr. II, 67. Revelation availed
itself of neither of these options. Therefore, I find that violation was the result of high
negligence.
The violation was also an unwarrantable failure to comply with the standard. As
discussed supra, the operator had knowledge of the violation, it knew the history of previous
flyrock events, and the violation at issue posed a high degree of danger. Furthermore, the noncompliant catch benches were approximately half the size of those required and had been in
place for a significant period of time prior to the citation. Revelation constructed these catch
benches in open defiance of the plan. Prior to issuance of the citation, Revelation took no
efforts in abating this condition. For the foregoing reasons, I find that the violation was an
unwarrantable failure.
8. Penalty
Having affirmed the Secretary’s determinations in all respects no deviation in the civil
penalty is necessary. I have considered each of the six statutory criteria set forth in Section
110(i) of the Act, and find that the Secretary’s proposed penalties are appropriate. 30 U.S.C.
§820(i). As discussed supra, the mines had a history of previous violations, Respondent had
high negligence in each citation, and these citations were found to be S&S. The parties have
stipulated that the proposed penalties will not affect Revelation’s ability to remain in business
and that Revelation abated the violations in good faith. JX-1; Tr. I, 19-20. Within the calendar
year prior to the issuance of Citation 8257006, Revelation produced 304,734 tons of coal, with

36 FMSHRC Page 1608

the S-1 Hunt’s Branch Mine producing 177,984 tons. SX-10. Within the calendar year prior to
the issuance of Citation 8257015, Revelation produced 604,734 tons of coal, with the S-4
Netley Branch Mine producing 425,000 tons. SX-10.
ORDER
For the reasons set forth above, the citations are AFFIRMED as indicated. Revelation
Energy, LLC, is ORDERED to pay $23,800.00 for the violation set forth in Citation No.
8257006 and $52,500.00 for the violation set forth in Citation No. 8257015. Revelation shall
pay the Secretary of Labor the total sum of $76,300.00 within 30 days of the date of this
decision.33
/s/ Kenneth R. Andrews
Kenneth R. Andrews
Administrative Law Judge

Distribution: (Certified Mail)

Willow Eden Fort, Esq., U.S. Dept. of Labor, Office of the Solicitor, 618 Church St., Suite 230,
Nashville, TN 37219-2440
David J. Hardy, Esq. & Christopher D. Pence, Esq., Hardy Pence, LLC, 500 Lee St. East, Suite
701, Charleston, WV 25301
/mzm

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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 1609

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

June 6, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
MARCO CRANE,
Respondent

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CIVIL PENALTY PROCEEDING
Docket No. WEST 2012-894-M
A.C. No. 02-00112-287258 MWX

Mine: Freeport McMoRan Miami Inc.

DECISION GRANTING SUMMARY DECISION
DISMISSAL ORDER
Before:

Judge Gill

This case is before me upon a petition for assessment of a civil penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). This case
concerns a single 104(a) citation, Citation No. 6585510, and was originally set for hearing on
October 1 and 2, 2013.
PROCEDURAL HISTORY
On August 9, 2013, the Respondent, Marco Crane, filed a motion for summary decision.
The Secretary of Labor opposed this motion and filed a memorandum in response on August 23,
2013. After reviewing the pleadings, I determined that the citation was issued under the wrong
standard. The Commission’s case law suggested that the most appropriate response would be to
order the Secretary to show cause why the citation should not be amended. The hearing was
continued, and the Secretary was ordered to show cause as to why the citation should not be
modified from a violation of 30 C.F.R. § 56.16007(b) to a violation of 30 C.F.R. § 56.14100(c)
by filing a written explanation with the court. In the order to show cause, I indicated that I was
inclined to grant the operator’s motion for summary decision if the citation was not amended.
The Secretary responded to the order, and Marco Crane requested and was granted permission to
file a reply to the Secretary’s response.
UNDISPUTED FACTS
Marco Crane, a crane company, was providing general hooking and hoisting services to
the Freeport McMoRan Miami Inc. mine, when it was cited for a violation of 30 CFR §
56.16007(b) on February 28, 2012. Section 56.16007(b) requires that hitches and slings used to

36 FMSHRC Page 1610

hoist materials shall be suitable for the particular material handled. The inspector issued a
citation after finding two frayed slings among the items stored in the storage compartment of a
flatbed truck trailer during his inspection. The inspector did not observe the damaged slings
being used during his inspection, and he destroyed them after issuing the citation. The trailer
where the slings were stored was not capable of hoisting materials. The slings were not in use
during the inspection, and the truck was not being used to hoist anything.
THE PARTIES’ ARGUMENTS
In his response, the Secretary declined to seek leave to modify the citation. Instead, the
Secretary argues that the cited standard was the appropriate standard. He contends that the phrase
“used to hoist materials” was included to clarify that 30 C.F.R. § 56.16007(b) applies to slings
that are intended for the purpose of hoisting material, as opposed to slings meant for other
purposes, and that the standard does not require a defective sling to be hoisting material during
an MSHA inspection for a violation to occur. Finally, the Secretary argues that the inspection
reveals that the defective slings were used by the Respondent to hoist material.
In its reply to the Secretary’s response, Marco Crane argues that the phrase “used for
hoisting” means that the slings in question must be in use, or at least have been used, before a
citation can be issued, and the record does not support that the slings were “intended to be used”
or “damaged from use.” The operator further argues that the Secretary’s interpretation of the
regulation makes it virtually impossible to comply with the standard, and that the Secretary has
provided neither justification for deference to its interpretation nor notice of its intended
interpretation.
ANALYSIS
The granting of motions for summary decision by a Commission ALJ is governed by
Commission Rule 67, 29 C.F.R. §2700.67. This rule states that a motion for summary decision
shall be granted only if the entire record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows: (1) that there is no genuine issue as to any
material fact; and (2) that the moving party is entitled to summary decision as a matter of law.
As discussed in the order to show cause, I find that there are no contested issues of
material fact in relation to the citation at issue. This satisfies the first requirement of the
summary decision standard.1 Because that part of the standard has been satisfied, I must examine
whether the moving party is entitled to summary decision as a matter of law. For the reasons
discussed below, I find that the undisputed facts in the pleadings, read in the light most favorable
to the Secretary, are not sufficient to prove a violation of 30 C.F.R. § 56.16007(b).
The citation at issue, Citation No. 6585510, was issued as a violation of 30 C.F.R. §
56.16007(b). This regulation states that “[h]itches and slings used to hoist materials shall be
suitable for the particular material handled.” 30 C.F.R. § 56.16007(b). The interpretation of this
1

The Secretary argues that Marco Crane’s denial of a request to admit that the defective
slings were not tagged out of service constitutes a disputed issue of material fact, but that is not a
material fact under the standard at issue here.

36 FMSHRC Page 1611

citation is disputed by the parties, with the conflict centered around the phrase “used to hoist
materials.”
Commission case law states that if the meaning of a regulatory provision is plain, the
provision should be interpreted so as to give effect to that plain meaning. Exportal Ltd. v. United
States, 902 F.2d 45, 50 (D.C. Cir. 1990); Pfizer, Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir.
1984). When “a regulatory provision is clear, the terms of that provision must be enforced as
they are written unless the regulator clearly intended the words to have a different meaning or
unless such a meaning would lead to absurd results.” Martin Cnty. Coal, 28 FMSHRC 247, 255
(May 2006). In determining whether a provision's meaning is plain, courts apply all of the
traditional tools of interpretation, including both the language of the particular provision at issue
and the language, structure, and purpose of the statutory scheme as a whole. Tacoma, Wash. v.
FERC, 331 F.3d 106, 114 (D.C. Cir. 2003); Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1288
(D.C. Cir. 2000), cert. denied, 532 U.S. 970 (2001). If the regulation is ambiguous, the Court will
defer to the Secretary’s interpretation of the regulation unless it is “plainly erroneous or
inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997).
To prove a violation of 30 C.F.R. § 56.16007(b), the Secretary would have to present
evidence of 1) use of a hitch or sling 2) to hoist materials. The Secretary would then have to
present evidence that 3) the sling is inappropriate for the particular materials handled. This gives
effect to the full text of the regulatory provision and is reasonable in the context of the regulatory
scheme. There is potential ambiguity in that the regulation does not specify past, present, or
future use, but the remainder of the provision indicates that something more than mere
availability for use is meant. The word “particular” is key in this analysis, as it is impossible to
know whether the slings are “suitable for the particular materials handled” absent evidence that
the slings have actually been, or will actually be, used to hoist materials. Thus, an interpretation
that reads actual use out of the regulation is erroneous. The reading proposed by the Secretary,
stating that actual use is not required and that “slings used to hoist materials” means slings that
are generally intended for the purpose of hoisting materials, as opposed to other types of slings,
is plainly inconsistent with the regulation.2
The Secretary’s interpretation of the provision is problematic because would have farreaching results that are inconsistent with the regulation. The Secretary’s concern with potential,
inadvertent use of inappropriate slings features heavily in his response to the order to show
cause. He explains that the Respondent was cited because worn out slings were found in a
storage compartment with other slings. Because these slings were of a type that are generally
“used to hoist materials” and were stored with other, undamaged slings, the Secretary fears that
an inattentive miner could potentially retrieve and use a damaged sling for hoisting. This is a
valid concern, but it is not the type of hazard that this regulation is intended to address.

2

The Secretary misconstrues the Court’s interpretation of the standard, arguing that
under the Court’s interpretation, an operator could only be cited for a violation of 30 C.F.R. §
56.16007(b) if an MSHA inspector observed damaged or otherwise improper slings in use during
an inspection. This is not the case. Witness testimony or circumstantial evidence could be used to
establish that a sling is not suitable for the material it is, was, or would soon be used to lift.

36 FMSHRC Page 1612

The Secretary’s proposed interpretation only makes sense in the context of slings that are
inappropriate for use because they are damaged. Different types of slings are appropriate for
different types of lifts. If several types of slings are available in an operator’s on-site supply
storage areas, it is also possible that an inattentive miner could select the wrong type of sling to
lift a load. Thus, under the Secretary’s version of the regulation, an operator could be cited for
simply having multiple different types of slings available. This is an absurd result. Requiring that
slings be appropriate “for the particular material handled” suggests that Section 56.16007(b)
contemplates the on-site availability of multiple different types of slings. This further supports
the proposition that the regulation is concerned with the actual use of slings that are
inappropriate for the particular material handled, not the mere availability of inappropriate slings.
The overall structure of the statutory scheme also counsels against the Secretary’s
interpretation. The Secretary’s concern with the potential for inadvertent use of damaged slings
is addressed under a different standard. Section 56.14100(c) requires that “[w]hen defects make
continued operation hazardous to persons, the defective items including self-propelled mobile
equipment shall be taken out of service and placed in a designated area posted for that purpose,
or a tag or other effective method of marking the defective items shall be used to prohibit further
use until the defects are corrected.” 30 C.F.R. § 56.14100(c).3 The fact that this provision
addresses the hazard posed by the availability of damaged equipment, which would include
damaged slings, further indicates that the cited standard, 30 C.F.R. § 56.16007(b), was not meant
to deal with that specific hazard. A citation under this standard would address the risk of
inadvertent use that the Secretary has identified, and Citation No. 6585510 should have been
modified accordingly.
Having established that this citation requires something more concrete than the mere
availability of inappropriate slings, I find that the Secretary cannot prove a violation of the cited
standard based on the facts in the record. In addition to discussing the risk of accidental use, the
Secretary states that there is evidence that the damaged slings had actually been used in violation
of the regulation. In support of this contention, the Secretary states that
“Respondent is a crane company that uses slings to lift heavy
objects. At the time of the inspection the lifting involved the
rebuilding of haul trucks and other equipment. The worn slings at
issue in this case were found in a box with undamaged slings in the
toolbox on a flatbed truck. The slings were damaged from use.
They did not become damaged sitting in the toolbox.”
Secy. Response Ord. Show Cause 4 n.3
The Secretary expects me to infer, based on the fact that that the damaged slings had
been found in a toolbox in one of Marco Crane’s flatbed trucks, that the slings had been used to
hoist materials. This is not an unreasonable inference, but it is only the first step in a longer chain
of inferences that I would have to make in order to conclude that a violation occurred. In addition
3

I note that because there is a factual dispute over whether the slings had been tagged out
or otherwise taken out of service, a citation under this standard would survive a motion for
summary judgment based on the pleadings.

36 FMSHRC Page 1613

to concluding that they had been used to hoist materials, I would have to conclude either that the
damage was caused by inappropriate use instead of normal wear and tear, or that the slings had
been used in their damaged state. In this case, however, the sling was found in a storage
compartment in a truck that both parties admit was incapable of hoisting anything at all on the
day of the inspection. The Secretary has presented no additional evidence with regard to what
materials the slings had been used to hoist, which makes it unreasonable for me to reach either
one of those conclusions. Moreover, there is no evidence whatsoever that the slings would
actually be used in the future.
The regulations promulgated under the Mine Act are intended to protect the safety and
health of miners, and as a Commission judge I have a duty to do the same. I also have a duty to
interpret and apply these regulations fairly and correctly, and to hold the Secretary to his burden
of proof. It would be inappropriate to stretch and twist the plain meaning of a regulatory
provision so that the Secretary can prove a citation that was issued under the wrong standard, but
that is what the Secretary is asking me to do. This request is especially problematic in light of the
availability of a much more appropriate provision and the explicit opportunity I provided to
amend the citation.
Reading the undisputed facts in the light most favorable to the non-moving party, I find
that a reasonable finder of fact could not determine that the Secretary has proved a violation of
30 C.F.R. § 56.16007(b). Wherefore, the operator’s motion for summary decision is
GRANTED.
ORDER
Wherefore, it is ORDERED that Citation No. 6585510 is VACATED and Docket No.
WEST 2012-894-M is DISMISSED.
/s/ L. Zane Gill
L. Zane Gill
Administrative Law Judge
Distribution:
Cheryl L. Adams, Esq., U.S. Department of Labor, Office of the Solicitor, 90 7th Street, Suite
3-700, San Francisco, CA 94103
Jana Leslie, Conference and Litigation Representative, U.S. Department of Labor, MSHA, P.O.
Box 25367 M/NM, Denver, CO 80225-0367
Holly P. Davies, Esq., Lorber Greenfield & Polito LLP, 950 W. Elliot Rd. Suite 110, Tempe,
AZ 85284
/ms

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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

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

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v.
TUSCALOOSA RESOURCES
Respondent.

CIVIL PENALTY PROCEEDING
Docket No. SE 2012-490
A.C. No. 01-03390-288534

Mine: Highway 59 Mine No. 1

DECISION
Appearances:

Sophia Haynes, Office of the Solicitor, U.S. Department of Labor
61 Forsyth Street, SW, Atlanta, GA 30303
Warren Lightfoot, Maynard Cooper & Gale, PC,
1901 Sixth Avenue, 2400 Regions Harbert Plaza
Birmingham, AL 35203
Josh Bennett, Maynard Cooper & Gale, PC,
1901 Sixth Avenue, 2400 Regions Harbert Plaza
Birmingham, AL 35203

Before:

Judge Simonton

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 Tuscaloosa
Resources, Inc. at the HWY 49 No. 1 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”). This case
includes one 104(d)1 citation and one 104(d)1 order issued on November 11, 2011 for a total
combined penalty of $140,000.00. The parties presented testimony and documentary evidence at
the hearing held in Birmingham, Alabama beginning January 15, 2014.
I. CASE SUMMARY
Tuscaloosa Resources, Inc. (Respondent) operated the surface coal HWY 59 No 1. mine
(“HWY 59 Mine”) from August 2009 through November 2011. Tr. 603. In order to remove the
economically valuable layers of coal present in this area, Respondent had to first remove a layer

36 FMSHRC Page 1615

of sandy topsoil 60 feet deep and then a 40 foot deep layer of shale rock before the first coal
seam was exposed. Resp. Br., 5-6; Tr. 70, 606. Per MSHA regulations, Respondent submitted a
ground control plan prior to beginning operations which was acknowledged by MSHA. Tr. 258.
This plan stated that during the development of highwalls, hazardous conditions, including
movement of the highwall, would be eliminated or workers would be removed from that area.
Sec’y Ex. 9, 7 section (g) (6); Tr. 681, 685. The plan did not indicate that berms would be used
to control or eliminate movement in highwalls. Tr. 263, 692.
In January 2011, a 103(g) complaint was filed with MSHA, claiming that a large section
of a highwall had collapsed and had not been cleaned up. Tr. 78, 81. MSHA Inspector James
Brodeur investigated this complaint and confirmed that a large slide had occurred in the
Northwest area of the mine in a location with water saturated soil but confirmed that no injuries
had occurred. Tr. 82. During the investigation of the complaint, Respondent’s management
informed Brodeur that they were moving away from this area to mine in another direction. Tr.
90. Inspector Brodeur did not issue any citations or orders during the January 2011 event. Tr.
89. On May 10, 2011, MSHA Inspector Jarvis Westerly examined the HWY 59 mine as part of
a regular inspection and did not find any highwall violations. Tr. 350-51.
On October 5, 2011 a massive highwall failure occurred at the active face of the HWY 59
Mine. Tr. 381. A 230 foot wide section of the highwall slid out from the toe, overtopping a
protective berm and sweeping a haul truck and driver over the adjacent bench lip. Tr. 98-99.
The haul truck driver, Mr. Willis Jones, was severely injured, suffering a broken sternum,
internal bleeding, concussion, and bruised heart. Tr. 98
Respondent immediately reported the incident and MSHA Inspector Brodeur investigated
the accident that day. Tr. 93. Upon arriving at the scene, Inspector Brodeur noted that this slide
had occurred in the West end of the pit in the same general proximity as the January slide. Tr.
97. Inspector Brodeur took photos of the accident scene and interviewed witnesses, including
the excavator operator who was closest to the highwall at the time of the slide. Tr. 97, Sec’y Ex.
5, 15-16.
After concluding his investigation, Inspector Brodeur issued one 104(d)1 Citation and a
separate 104(d)1 Order on November 11, 2011. For Citation No. 8521047, Brodeur alleged that
Respondent had violated 30 CFR 77.1004(b) and failed to follow its Ground Control Plan by not
implementing adequate controls or properly barricading the area in which the failure occurred.
Sec’y Ex. 5. For Order No. 8521048, Brodeur alleged that Respondent had violated 30 CFR
77.1713(a) in failing to identify overhanging material, loose rocks, water seepage, and overfilled
catch benches at the highwall during required daily inspections. Sec’y Ex. 6. Inspector Brodeur
alleged that both violations were the result of the Respondent’s high negligence and constituted
an unwarrantable failure to comply with the Mine Act. Sec’y Ex. 5; Sec’y Ex. 6.
The Secretary issued proposed penalty assessments for these alleged violations on May
17, 2012. Sec’y Proposed Assessment Exhibit A. Respondent timely contested both alleged
violations and the parties engaged in lengthy discovery efforts. On May 2, 2013, I issued a
prehearing order that required the parties to submit a prehearing report that detailed agreed upon
stipulations and remaining issues of contention. May 2, 2013 Pre-Hearing Order, 2. The pre-

36 FMSHRC Page 1616

hearing order also notified the parties that absent exigent circumstances witnesses and exhibits
not disclosed within their prehearing report would be excluded from the record. Id. Three days
prior to hearing, after the parties had exchanged the required pre-hearing reports and participated
in a pre-hearing teleconference, the Secretary submitted a Motion to Amend to Cite the Standard
in the Alternative for Citation No. 8521047. Sec’y Motion to Amend, January 10, 2014.
Respondent opposed the motion to amend, alleging bad faith on the part of the Secretary and
stating that such a change would prejudice their ability to defend themselves. Resp. Motion in
Opposition, January 14, 2014. I denied the Secretary’s motion, finding that the motion was not
timely filed, the discovery process had not provided Respondent notice of an alleged failure to
adhere to the “prudent engineering standard” governed by the alternative 30 CFR 77.1000
standard, and that the motion was not necessary as the alleged facts of the citation corresponded
directly with the originally cited 30 CFR 77.1004(b) standard. Order Denying Motion to Amend,
January 14, 2014.
I presided over a three day hearing in this matter on January 15, 16, and 17 in
Birmingham, Alabama. The Secretary presented testimony from Respondent employee Michael
Howell, MSHA Inspectors James Brodeur and Jarvis Westerly, and Regional MSHA Supervisor
Steven Womack. Respondent presented testimony of employees Ricky Williams, Stephen
Smith, Judson Jones, Jan Kizziah, Michael Howell and Charlie Bridges. At the conclusion of the
hearing, the Secretary renewed her motion to cite Citation No. 8521047 in the alternative, which
the Respondent again opposed. Tr. 778. I again denied the Secretary’s Motion but informed the
parties that I would evaluate whether or not Respondent complied with its written ground control
plan as part of my determination of whether it violated 30 CFR 77.1004(b). Tr. 789-791.
The parties submitted post-hearing briefs as requested by the Court. In summary, the
Secretary argued the Citation and Order should be upheld as Respondent negligently relied upon
a rock berm to contain obviously wet and unstable material that regularly slid out from the toe.
Sec’y Br. 11, 23. Respondent argued that the Citation and Order should be vacated, claiming
that the October 5, 2011 slide was unforeseeable, that MSHA had observed its mining and
ground control methods during previous inspections without objection, and that no standard
regulated or notified Respondent of the dangers of saturated ground conditions. Resp. Br., 25,
29, 35. The Secretary, responding to the claim that MSHA did not have regulations pertaining to
saturated ground conditions, filed a reply brief supported by MSHA bulletins outlining best
management practices for stockpiles not produced or referenced at hearing. Sec’y Reply Br., 23. The Respondent filed a motion in opposition, stating that these exhibits violated my prehearing order requiring disclosure of exhibits pre-hearing and were irrelevant as they applied to
stockpiles and not developing highwalls. Resp. Obj. to Reply Br., 3-4. Respondent also
submitted their own Reply brief for consideration. Resp. Reply Br.
In response to the parties arguments, I have prepared a Statement of Law outlining the
Commission’s instructions regarding: 1) Statute Interpretation; 2) Burden of Proof; 3) Significant
and Substantial violations; 4) Unwarrantable Failure; and 5) Civil Penalty and Special
Assessment. After detailing these guidelines, I have set forth my case findings as follows: A)
HWY 59 Mine Ground Conditions and Control Plan; B) January Slide, C) October Slide D)
Analysis. Due to the volume of testimony, I have not included a separate summary of testimony,
but have considered all testimony and evidence presented and referenced the testimony and

36 FMSHRC Page 1617

arguments critical to my ultimate rulings. As they were not necessary for my ultimate findings, I
did not consider the alternative standard or government exhibits submitted after hearing in
reaching this decision.
After considering the testimony and evidence presented, I AFFIRM Citation No.
8521047 and Order No. 8521048 as originally written. Upon reviewing the six penalty criteria
and evidence presented regarding the specially assessed penalty amounts, I find that $50,000.00
is an appropriate penalty for each of the violations for a total combined penalty amount of
$100,000.00.
II. STATEMENT OF LAW
A.

Statute Interpretation
The Commission has stated that:
The operator is entitled to the due process protection available in
the enforcement of regulations... 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. Laws must give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited,
so that he may act accordingly

Energy West Mining Co., 17 FMSHRC 1317-18 (internal citations omitted).
However, the Secretary is not required to provide the operator actual notice of its
interpretation of a mandatory safety standard, rather,
The Commission has applied an objective standard of notice, i.e.,
the reasonably prudent person test. The Commission has
summarized this test as ‘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.’
Energy West Mining Co., 17 FMSHRC 1318 (internal citations omitted).
B.

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).

36 FMSHRC Page 1618

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.’”
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).
C.

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). However, the Secretary “need not 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).
The Commission has mandated that ALJs perform a full analysis of all four Mathies
factors based on specific evidence, including the likelihood of an injury producing event
occurring. Wolf Run Mining Co., 32 FMSHRC 1669, 1678 (Dec. 2010). The Commission has
also maintained that an S&S determination must be based on more than a showing that a

36 FMSHRC Page 1619

violation ‘could’ result in an injury. Wolf Run Mining Co., 32 FMSHRC 1678 (quoting Peabody
Coal Co., 17 FMSHRC 26, 29 (Jan. 1995)).
D.

Unwarrantable Failure
Section 104(d) (1) of the Mine Act states:
If, upon any inspection of a coal or other mine, an authorized
representative of the Secretary finds that there has been a violation
of any mandatory health standard,… and if he finds such violation
to be caused by an unwarrantable failure of such operator to
comply with such mandatory health or safety standards, he shall
include such findings in any citation given to the operator under
this Act.

Unwarrantable failure is defined as aggravated conduct constituting more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is
characterized by such conduct as “reckless disregard,” “willful intent”, “indifference,” or the
“serious lack of reasonable care.” Id. at 2004-04; Rochester & Pittsburgh Coal Co., 13
FMSHRC 189, 193-94. (February 1991).
The Commission considers the following factors when determining the validity of
104(d)1 and 104(d) 2 orders: (1) the length of time that the violation has existed and the extent of
the violative condition,(2) whether the operator has been placed on notice that greater efforts
were necessary for compliance, (3) the operator’s efforts in abating the violative condition, (4)
whether the violation was obvious or posed a high degree of danger and (5) the operator’s
knowledge of the existence of the violation. Consolidation Coal Co., 22 FMSHRC 340, 353
(Mar. 2000). All of the relevant facts and circumstances of each case must be examined to
determine if an actor’s conduct is aggravated, or whether mitigating circumstances exist. IO
Coal Co., 31 FMSHRC 1346, 1351 (Dec. 2009).
E.

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 the six statutory penalty criteria:
(1) the operator’s history of previous violations, (2) the appropriateness of
such penalty to the size of the business of the operator charged, (3)
whether the operator was negligent, (4) the effect on the operator’s ability
to continue in business, (5) the gravity of the violation, and (6) the
demonstrated good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.

36 FMSHRC Page 1620

30 U.S.C. 820(I).
These criteria are generally incorporated by the Secretary within a standardized penalty
calculation that results in a pre-determined penalty amount based on assigned penalty points. 30
CFR 100.3: Table 1- Table XIV. When specific aggravating factors outside of the normal
gravity and negligence determinations are present, the Secretary may instead rely upon 30 CFR
100.5 and propose specially assessed penalties. In either assessment method, the Secretary may
only propose penalties up to $70,000.00 per citation for violations considered under Section
110(a) (1) of the Mine Act. The Secretary may only propose penalties above $70,000.00 per
citation when there is evidence that the violation was a flagrant violation per the definition of
Section 110(b) (2) of the Mine Act.
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).
III. FINDINGS AND ANALYSIS
A.

Hwy 59 Mine Ground Conditions

The Hwy 59 Mine was comprised of several distinct levels of material. The top 60 feet
of the mine was comprised of unconsolidated layering of red clay, sand, and pea gravel. Tr. 34445, 465-66, 606. Below this overburden layer was a harder 40 feet level of shale rock. Tr. 70,
606. The shale rock was impermeable to water and groundwater collected on top of the shale
rock at the bottom pea gravel layer of the overburden. Tr. 465-66, 614. This groundwater was
routinely diverted by a berm system to the pit below where sump pumps pumped the water out of
the mine continuously. Tr. 614-15. The bench at the top of the shale rock level was referred to
as the Brookwood bench. Below the shale rock were alternating seams of coal and sandstone.
Sec’y Ex. 9, 9. The bench at the bottom of the shale rock level and the top of the first coal seam
was referred to as the Milldale bench. Respondent tested the overburden to determine if it had
commercial value, and the test results indicated that the material was not cohesive enough to act
as a binder in concrete or asphalt products. Tr. 655-66. Within the mine, the West side of the
overburden layer was generally wetter than the east side. Tr. 692.
Before beginning operations, Respondent submitted a ground control plan to MSHA
per MSHA regulations. Tr. 331. MSHA acknowledged the plan without reservations. The
ground control plan stated in relevant part,
When failure to control the developing highwall occurs such as the
existence of overhan(g)s, loose material, unconsolidated rocks,

36 FMSHRC Page 1621

materials falling into the pit, movement in the wall, or blasting
practices fail to result in a clean and stable highwall, and corrective
action cannot be taken to eliminate the existence of these
conditions, the affected area will be barricaded to prevent persons
from being exposed to the conditions and the plan will be revised
to safely control the highwall and provide for safe conditions.
Sec’y Ex., 9, 7 (g) 6.
The ground control plan did not list berms as a proposed method of controlling or
eliminating movement in the highwall. Tr. 692, 263.
Respondent used an excavator and haul trucks to remove the unconsolidated overburden
from the active pit. Each “cut” through the overburden created a bench approximately 150 feet
wide. Tr. 614. Respondent built up a working berm at the toe of the 60 foot tall overburden
highwall as mining progressed. Tr. 397. This berm was used to divert groundwater, keep the
working bench clean, protect equipment, and allow trucks to operate without become stuck in
soggy conditions. Tr. 611, 736. The toe/working berm was positioned approximately 10-20 feet
from the toe of the overburden and ranged from 8-12 feet high.1 Tr. 398, 677. An excavator
was positioned on the far bench side of the toe berm while it dug material from the highwall
side. Tr. 397. The excavator had a reach of approximately 25 feet and both directly tore down
material from the overburden highwall or relied upon material sliding to the working berm on its
own as it dug at the berm. Tr. 669-70, 677.
B.

January 2011 Slide

On January 19, 2011 a large slide occurred at an 80 foot wide section of the highwall at
the West side of the mine. Tr. 81. MSHA received a hazard complaint alleging that a large slide
had occurred and had not been cleaned up. Id. Inspector Brodeur traveled to the mine and
investigated the site and interviewed eyewitnesses to the slide. Tr. 82. Inspector Brodeur
testified that eyewitnesses informed him that the slide occurred in an area where an excavator
was reaching over a berm to excavate soupy saturated material at the toe of the overburden.

1

Inspector Brodeur alleged within Citation No. 8521047 and testified that he believed the
toe berm was 100 feet away from the toe of the overburden highwall. Tr. 283; Sec’y Ex 5, 1.
After reviewing the testimony of all witnesses and the exhibits entered, I find that the working
toe berm was located within 10-20 feet of the toe of the highwall. Tr. 398, 677, 738 . Given that
each cut was approximately 150 feet wide, a 100 foot working berm configuration would not
have allowed the excavator and trucks to operate in the manner credibly described by Truck
Driver Ricky Williams. Tr. 370, 614. This finding regarding the location of the toe berm does not
affect my ultimate finding that the toe of the overburden highwall was significantly saturated
prior to the October slide.

36 FMSHRC Page 1622

Tr. 83. This testimony is corroborated by Bordeur’s January 20, 2011 inspection notes which
recorded that prior to the slide:
The highwall above the Brookwood bench consisted of dirt, clay,
sand, small rock and gravel and was wet from snow and rain
weather. The highwall was sloped back and Gauley stated that as
he would dig, the highwall material would slide toward the
excavator. An approximate 4.5 foot high berm, constructed of
rock, was built at the base of the highwall with the excavator on
the bench side reaching over to dig on the highwall.
Sec’y Ex. 4, 10.
Brodeur also testified that the highwall collapsed in the area being excavated and
breached the toe berm and flowed across the shale rock bench and then down onto a lower bench
where it pushed a backhoe 75 feet. Tr. 83-84. Brodeur’s testimony on the specifics of the slide
are corroborated by his January 20, 2011 inspection notes which record that eyewitnesses stated:
The top approx. 40 feet of the approx. 60 foot highwall slid out at
the bottom of the 40 foot, traveled approx. 120 feet across the
Brookwood bench and over the highwall down to the Milldale
bench… The material pushed the backhoe approx. 75 feet along
the Milldale bench.… The material got up under the hoe and slid
it. The hoe operator stated he unbuckled his seatbelt, got off the
hoe and ran when he saw the material coming. All witnesses
stated the material slid and flowed like slow moving water… The
area of the wall that slid out was 40 feet in height, 80 feet in width
and 30 feet in thickness…
Sec’y Ex. 4, 10-12.
Brodeur inspected the on-shift examination book, noted an entry recording that a “wall
slid on Milldale pit” and mistakenly concluded that Respondent had identified the conditions of
the highwall as a hazard prior to the major slide. Tr. 88. In fact, Respondent had only completed
this entry after the January 19 slide had occurred. Tr. 177. Respondent’s Superintendent Charlie
Bridges informed Brodeur Respondent was not going to mine in that area anymore and that they
were going to mine in a different direction. Tr. 90-91. Based on his previous observations of
HWY 59 mining conditions and relying upon his understanding that Respondent would cease
mining in that area, Inspector Brodeur decided not to issue any violations. Tr. 89-90.
The Respondent has emphasized that they were not actively excavating in the location of
the January slide at the time it occurred. Resp. Br., 13; Tr. 400. Upon questioning by the Court,
Superintendent Bridges stated that crews were digging from the toe approximately 150 feet away
from the main point of the January slide, but also stated that the area had already been excavated

36 FMSHRC Page 1623

and that a pump had been set at this location prior to the slide.2 Tr. 761. The Respondent has
also argued that the January slide was primarily caused by the presence of an old settling pond at
this location and was made up of different material than the normal highwall. Resp. Br. 14, Tr.
630-31. However, Respondent did not produce any witnesses who personally observed the
January slide as it occurred. Tr. 377, 403, 423, 739. As noted above, Inspector Brodeur testified
that eyewitnesses to the January slide stated to him that the slide was made up of the saturated
material of the highwall. Tr. 83. Indeed, Inspector Brodeur’s January 20 investigation notes
indicate that the excavator operator digging the highwall, Alan Gauley, observed the slide and
that the “berm on the Brookwood bench was constructed out of the same material as the highwall
that slid down.” Sec’y Ex. 4, 10-11.
As such, I find that the January slide occurred in an excavated area with saturated soil
conditions, and that the slide consisted of the normal mixture of clay, sand, and gravel present at
the highwall in this area. I also find that although the settling pond present at the top of the
highwall in this location may have added to the saturation and instability of the wall, it is also
apparent that the extensive wetness of the highwall below was a significant contributory factor of
this slide. In making this determination, I note that the highwall slid out from a point 40 feet
below the top of the highwall and moved like “slow moving water” in a manner similar, if much
more voluminous, than the routine sliding considered part of the excavation cycle. Sec’y Ex. 4,
11-12.
C.

October 2011 Slide

On October 4, 2011, Respondent employee Michael Howell inspected the active face of
the highwall recording that that the highwall was “ok” at his last inspection time of 11:37 PM.
Tr. 721-23; Sec’y Ex. 7, 10. This active face was approximately 500 feet to the Northwest of the
location of the January slide. Tr. 97, 707-08, Resp. Ex F. Howell later stated at hearing that he
did not observe any unusually excessive water saturation or other unsafe ground conditions prior
to the fall. Tr. 722-23. However, Howell confirmed that a soupy mixture of sand and water
regularly ran from the toe of the highwall at this area. Tr. 62. Howell also confirmed that the toe
of the highwall would slide out from the bottom of the highwall as it was excavated. Id. A toe
berm approximately 10-12 feet high was used to contain the toe of the highwall in this area and
divert water to the pit below. Tr. 611-12. The next morning, Steve Smith performed the preshift examination for the day shift, noting that everything was “ok” at 3:38 am. Tr. 452-53;
Sec’y Ex. 7, 9. The shift began production with Excavator Operator Gary White digging from

2

Although the record is not entirely clear, it appears that there was already one
dewatering pump in place at the top of the shale rock bench prior to the slide and that a separate
pump was being installed on the bench below at the time of the January 19 slide. Tr. 84, 761.

36 FMSHRC Page 1624

behind the toe berm and loading haul trucks with the overburden. Tr. 98, 370; Sec’y Ex. 5, 1516. Mr. White later informed Inspector Brodeur that the soupy material that ran out from the toe
ranged up to 6 feet high on the highwall side of the berm.3 Tr. 107; Sec’y Ex. 5, 16. Respondent
Foremen Howell and Smith disputed this six foot figure at hearing. Tr. 449, 723. Truck Driver
Ricky Williams stated he was unable to directly observe the soupy material from his haul truck
on the opposite side of the berm. Tr. 387.
At 7:30 am, a 230 foot wide section of the highwall failed directly above the active
excavation. Tr. 108-09. During excavation, the face of the highwall slid out rapidly from the
bottom, overtopping the toe berm and sliding the excavator backwards. Tr.98; Sec’y Ex. 5, 15.
This first wave of material also pushed the haul truck driven by Mr. Willis Jones to the top lip of
the Brookwood bench. Tr. 98, 713. After a brief interval of several seconds, a second wave of
material slid out from the toe of the highwall, again breaching the berm. Tr. 98, 101-02. This
second wave struck the haul truck as Jones attempted to jump clear, sweeping both the truck and
Jones over the bench onto the Milldale pit below. Tr. 98-99; Sec’y Ex. 5, 15-16.
Respondent employees spotted Jones’ fingertips sticking out from the slide and freed him
quickly from the slide. Tr. 99-100. Emergency services arrived at the scene and transported Mr.
Jones by helicopter to a nearby hospital, treating him for a bruised heart, concussion, bulging
disc and internal bleeding. Tr. 100, 120.
D.

Citation No. 8521047
1. Motion to Amend to Cite in the Alternative

The Secretary renewed her Motion to Amend Citation No. 8521047 to cite 30 CFR
77.1000 at the beginning of the hearing, at the end of the hearing, and again within her post
hearing brief. Tr. 9, 778; Sec’y Br., 33. However, the Secretary essentially restated the positions
originally articulated in his original motion to amend and did not offer significant additional
arguments. As such, I again deny the Motion to Amend to cite the standard in the alternative for
the reasons stated in my January 15th Order concerning this issue.
To reiterate the position I stated at the conclusion of the hearing, I did analyze the
effectiveness of the toe berm in controlling the hazard of sliding saturated material, and
considered testimony regarding Section (g)(6) of the Respondent’s Ground Control plan as
3

Mr. White passed away prior to the hearing due to causes apparently unrelated to this
matter and was not deposed during the discovery process. However, Inspector Brodeur’s
investigation notes confirm that Mr. White stated he was digging a soupy mixture of water, sand,
and clay up to 6 feet deep from the highwall side of the toe berm prior to the accident. Gov. Ex.
5, 15-16. Additionally, although Respondent’s employees have disputed that the soupy material
was up to 6 feet deep on the highwall side of the mine there is no substantive dispute that there
was a notable amount of soupy sand/water mixture present at the toe of the highwall. Tr. 62. As
such, while Inspector Brodeur’s testimony recounting Mr. White’s statements are not critical to
my ultimate findings, I found that they were a credible and corroborated account of the October
5 slide.

36 FMSHRC Page 1625

evidence that the described conditions were indeed a hazard. Tr. 790-91. However, I did not
consider testimony or arguments regarding the operator’s general mining plan or alternate
mining methods referenced at hearing. Tr. 494,768; Sec’y Br. 14-15.
2. The Violation
Inspector Brodeur alleged in part within Citation No. 8521047 that:
The Mine Operator failed to follow the Ground Control Plan for
this mine by implementing adequate controls to prevent a highwall
failure or poorly barricading the highwall to prevent persons from
being exposed to ground failure hazards.
Sec’y Ex. 5.
Brodeur determined that an injury had occurred, the injury was permanently disabling,
affected one person, the violation was S&S and the result of the operator’s unwarrantable failure
to comply with the Mine Act. Sec’y Ex. 5. The Secretary proposed a specially assessed penalty
of $70,000.00 for violating 30 CFR § 77.1004(b). Sec’y Proposed Assessment, Exhibit A.
30 CFR § 77.1004(b) mandates:
Overhanging highwalls and banks shall be taken down and other
unsafe ground conditions shall be corrected promptly, or the area
shall be posted.
Thus, the Mine Act requires mine operators to correct or barricade all “unsafe ground
conditions” that a reasonably prudent miner would identify. Energy West Mining Co., 17
FMSHRC 1318.
The Secretary contends that the wet material that regularly slid out from the toe was an
unsafe ground condition the Respondent should have eliminated and or barricaded. Tr. 91-92;
Sec’y Br. 13. The Secretary also argues that the toe berm was not a sufficient control method as
it only kept material that had already slid out from the toe from spreading further out onto the
bench. Tr. 676-77; Sec’y Br. 13. The Respondent rejects this contention on three points,
arguing that 1) the water seepage present at the HWY 59 highwall was normal and did not
present a hazard; 2) MSHA regulations do not regulate soil saturation, and; 3) the 10 foot berm
was properly constructed and functioned adequately under foreseeable circumstances. Resp. Br.
5, 25, 27.
After reviewing the testimony, entered exhibits, and relevant Commission case law, I find
that a reasonably prudent miner would have identified the wet sliding material as a hazard
requiring elimination or evacuation. I also find the Respondent’s rebuttal arguments on this
matter unavailing and lacking credibility.

36 FMSHRC Page 1626

a.

Significant Water Seepage was Present at the Highwall Prior to the
October Slide

Respondent’s Vice President of Operations Jan Kizziah’s testified that the October slide
consisted primarily of “wet and sloppy” material. Tr. 713. Indeed, the accident investigation
photos show a layer of dark grey sludge fanning out across several hundred feet of the lower pit
floor. Sec’y Ex. 5, 33. The material is obviously very saturated and wet as equipment used after
the slide in abatement efforts left deep tire tracks. Id. However, Respondent’s foremen Smith
and Howell testified that prior to the slide that water seepage at the highwall was “normal” and
that this substantial volume of wet material was not detectable. Tr. 453, 719-22. After
reviewing the testimony and description of ground conditions at this area, I find that the
Secretary has established that the toe of the slope was obviously saturated prior to the slide and
the Respondent’s argument that this condition was undetectable lacks credibility and are
contradicted by their own statements.
Respondent Foreman Michael Howell conceded that prior to the October Slide, it was
normal for a sand and water mixture to run from underneath the highwall. Tr. 62. Howell also
stated that that the toe berm was used to contain the “soupy material” as the excavator scooped
out this mixture. Id. Howell did not consider the regular sliding of the toe material a hazard
since the berm normally contained those slides. Tr. 64. However, Foreman Smith stated that in
addition to the January and October slides, there were times when the excavator splashed enough
water onto the haul side of the bench that clean-up efforts were necessary. Tr. 436-37. Given
the 10 foot height of the toe berm, this account supports Inspector Brodeur’s testimony that after
the accident, excavator operator Gary White stated that he had been digging up to six feet of
soupy material from the highwall side of the toe berm prior to the accident. Tr. 222, Sec’y Ex. 5,
15-16.
Additionally, although Superintendent Bridges described water seepage at this area as
normal and safe, he also stated that the toe berm was necessary to divert water away from the
haul path as “You had to keep it clean to be able to work. The trucks would not go on wet or
soggy material.” Tr. 736.
Similarly, Vice President Kizziah indicated that the bottom layer of the overburden was
inherently wet as water was “gonna wind up at the interference of the shale and sand and gravel
because it can’t go any further.” Tr. 614.
The photos of highwall areas immediately adjacent to the October slide show obvious
areas where groundwater was seeping from the toe of the overburden highwall. Tr. 109; Sec’y
Ex. 5, 33. Kizziah and Bridges both testified that it was normal for overburden in this region of
Alabama to be moist. Tr. 608, 730. However, Kizziah conceded that the West part of the HWY
59 mine where the January and October slides occurred was wetter than the East part. Tr. 692.
Additionally, the presence of large water stains on the adjacent highwalls indicates that
groundwater was flowing under pressure in this area and that the soil in this area contained more
water than it could hold. Sec’y Ex. 5, 33.

36 FMSHRC Page 1627

Thus, based on the testimony and exhibits presented, I find that prior to the October
slide, there were obvious visual signs of extensive water accumulations at the active
highwall, particularly at the toe of the slope.
b.

Wet Saturated Material is an Unsafe Ground Condition at a Highwall

The Respondent is correct that 30 CFR § 77.1004(b) does not literally specify wetness or
saturation as an unsafe ground condition. Tr. 208. However, water saturation and erosion due to
water seepage are well-known ground control parameters. MSHA’s Regional Supervisor stated
that the water saturated condition of the unconsolidated material he observed at the HWY 59
mine increased the likelihood of highwall failure. TR. 477, 489-90. The Respondent has
objected to Mr. Womack’s testimony regarding mining methods and ground conditions as
Womack did not inspect the mine prior to the accident or personally observe Respondent’s
mining methods. Still, Womack inspected the HWY 59 mine on October 11, observing the
muddy conditions of the slide itself and the soil composition and water seepage present at the
adjacent highwall. As such, I find that given his first hand observations of the HWY 59 mine
and his experience and training as an inspector, his testimony regarding the probable effect of
water upon unconsolidated material is relevant and admissible in these proceedings.
Similarly, Inspector Brodeur testified that some minor movement of highwalls was
acceptable but that the sliding of saturated material at the toe of the slope was inherently
dangerous and required evacuation. Tr. 135, 211-12. Brodeur also testified that at other mines
where water came out from the highwalls, operators installed pumps to remove the water. Tr.
131-32. I find this testimony consistent and supported by his statements made during deposition
that while minor sloughage of a highwall could occur in dry sandy conditions, when the material
at the toe of the slope was wet and saturated, the weight of the highwall material above could
cause the toe to slide out from the bottom due to pressure. Resp. Ex. 4, 178.
More importantly, the January slide provided Respondent specific notice that saturated
soil presented a significant hazard as the slide overtopped the toe berm and nearly overturned a
backhoe on the bench below. Tr. 83-84. Respondent argues that the January slide differed from
the October slide as they claimed the January slide involved sliding material from a settling pond
near the top of the highwall. Resp. Br. 14: Tr. 630-31. I have already found that the January
slide involved a slide from near the midpoint of a rain soaked highwall and that the settling pond
was only a partial factor of the January slide. However, regardless of the point at which that
slide began or the source of water saturation, the fact that the January slide overtopped the toe
berm put Respondent on notice that wet saturated material was prone to failure and that toe
berms were inadequate in containing significant slides.
Furthermore, the dangers of wet saturated material at a highwall are not a novel concept
to the Commission. In a remarkably similar case, an excavator operator was fatally injured when
an overburden highwall collapsed due to the destabilizing effects of wet and muddy ground
conditions. Featherlite Building, 12 FMSHRC 2580, 2583 (ALJ Cetti) (December 1990). The
ALJ, after considering expert testimony on the effect of saturated ground conditions, found the

36 FMSHRC Page 1628

wet condition of the highwall was an obvious hazard that the operator had failed to correct prior
to the collapse.4 Id. at 2591.
Although the Respondent repeatedly tried to downplay the danger of saturated material
sliding off the highwall by describing it as minor and controllable sloughage, TRI Superintendent
Charlie Bridges acknowledged in regards to sliding material that,
“Oh, it’s always a hazard, if it’s coming off the wall, it’s a hazard,
I mean, you know, that’s the reason we had the berm.”
Tr. 758.
Additionally, Vice-President Kizziah stated explicitly that without the toe berm, the wet
sandy material present at the toe was a hazard and, “could slough out and it’s gonna run out all
your bench… (and) ... damage equipment.” Tr. 622. Kizziah also stated that at a previous mine
in the area he had previously witnessed wet material “(take) out pickup trucks.” Tr. 622.
Kizziah also stated that a prior excavation method using dozers to push overburden down from
above had failed because:
“Now we have that sand down in the pit with us and all the water
we’ve got down there. We were having a problem stabilizing low
walls.”
Tr. 608.
In summary, Inspector Brodeur and Supervisor Womack credibly stated that water
saturation decreased the stability of the highwall; a previous slide of wet saturated material had
occurred in that area of the HWY 59 mine; Commission precedent has recognized saturated
ground conditions as a highwall hazard; and Respondent’s management repeatedly
acknowledged sliding or saturated wet material created highwall hazards. As such, I find that a
reasonably prudent miner would have recognized the wet sliding material at the toe of the

4

Featherlite involved a surface metal/nonmetal mine and an alleged violation of 30 CFR
§ 56.3200 which states that “Ground conditions that create a hazard to persons shall be taken
down or supported before other work or travel is permitted in the affected area. Until corrective
work is completed, the area shall be posted with a warning against entry and, when left
unattended, a barrier shall be installed to impede unauthorized entry.” As such, this standard
issues a substantially identical ground control mandate to surface metal non/metal operators as
30 CFR 77.1004(b) does to surface coal operators applicable in the before case.

36 FMSHRC Page 1629

highwall as an unsafe ground condition that required further control and or evacuation. 30 CFR
§ 77.1004(b); Energy West Mining Co., 17 FMSHRC at 1318.
c.

The Toe Berm was an Inadequate Control for the Extensive Saturation
Hazard

The Secretary argues that the berms were not listed in the ground control pan and were an
inadequate control since they only contained sliding material and did not prevent the sliding from
occurring in the first place. Tr. 692; Sec’y Br. 13. The Secretary also argues from MSHA
Supervisor Womack’s testimony that it was inherently unsafe for Respondent to rely upon the
toe berm to stop sliding material and dig from the toe of the slope rather than scaling at an angle
from the top. Tr. 472, 477; Sec’y Br. 13.
Respondent’s witnesses testified that the berms were stoutly constructed, contained the
highwall for over 99% of the highwall development, and that the January and October highwall
failures were unforeseeable events beyond its reasonable control. Tr. 372, 673, 739, 749. The
Respondent also contends that MSHA Supervisor Womack’s testimony regarding excavation
techniques at the toe of the highwall is inadmissible because he never observed Respondent’s
mine in operation. Resp. Br. 25, n. 7. Nevertheless, the Respondent contends that digging from
the toe and allowing material to slough towards the excavator was a safe method given the use of
the toe berm. Resp. Br. 27.
After considering the testimony, exhibits and arguments of the parties, I find that the
Secretary did demonstrate the toe berm was an inherently inadequate control method for the
saturated sliding material at the toe of the slope. Respondent stated in its ground control plan
that among other concerns, movement in the developing highwall will be eliminated and/or
barricaded. It is obvious that the toe berm did not eliminate sliding of the highwall. Sec’y Ex. 9,
7- (6). Instead, it kept the sliding toe from spreading out over the bench while the excavator
reached over the berm and scooped out fill material. Tr. 732-33. Additionally, the positioning of
the outer edge of the toe berm approximately 15 feet away from the toe of slope decreased the
effective reach of the excavator. Resp. Br. 27; Tr. 398, 669-70, 677-78. As such, the toe berm
decreased the ability of the excavator to scale the upper parts of the highwall and relieve pressure
from the saturated material.
Respondent’s Operations Vice President of Kizziah claimed that the ground control
provision did not apply to active faces of the highwall but was rather limited to highwall areas
that had already been completely excavated. Tr. 683-85. This claim is directly contradicted by
the section’s explicit coverage of “developing” highwalls and specific requirement for the
“result” of a “clean and stable highwall.” 5 Respondent alternately claims that sloughage is a
5

Respondent’s Operations Vice President Kizziah testified emphatically that this
provision only applied to established highwalls and did not apply to active faces. Tr. 688. The
Respondent has quoted the language of this provision in supporting this argument. Resp. Br., 34. However, after reviewing the Ground Control Plan as a whole, I find that the referenced
“developing highwall” section applies to significant uncontrolled movement of active as well as
established sections of the highwall.

36 FMSHRC Page 1630

necessary element of excavation, and the regular sliding of material at the toe was not the sort of
hazardous movement referenced by the ground control plan. Resp. Reply Br., 3-4.
However, the very need to construct a compacted 10 foot high rock berm indicates that
the sliding toe placed substantial pressure against the berm as Respondent’s Superintendent
Bridges testified in regards to the working/toe berm that:
“You couldn’t just push it up and leave it loose, because if
you did, I mean, it would, you know, have a tendency to
maybe lose one…If we felt like it was a little weak… We’d
have to send them and load rocks and bring back rock and
bring it back in there and shore up the berm again to make
sure that it was safe and everything.”
Tr. 737-739.
The fact that the toe berm was consistently used at the HWY 59 mine and significant
highwall failures only occurred along 1% of the total highwall is hardly an impressive safety
record or proof of the toe berm’s adequacy. Tr. 371, 673. After the January slide, it was evident
that that the existing 4 foot toe berm was incapable of controlling significant slides. Tr. 90.
Additionally, given the approximate 60 foot height of the overburden highwall and the fact that
the January slide produced so much material that it traveled to the level below and pushed a
backhoe over 75 feet, it was obvious that increasing the height of the toe berm to 10 feet would
do little in terms of preventing and or controlling a significant highwall failure. Tr. 706.
Furthermore, the Respondent’s argument that the toe berm was adequate for foreseeable
sloughage, but that the October slide overtopping the toe berm was unforeseeable is contradicted
by the evidence presented. As I have just noted, the January slide made large slides of saturated
material in this area a foreseeable possibility. Furthermore, during routine excavation following
the January incident, the highwall apparently did exhibit instability and slid up to the highpoint
of the berm on several occasions, prompting Respondent’s employees to temporarily withdraw
from the area until the highwall stabilized. Tr. 375-76; 617. As such, it is clear that
Respondent’s employees did not consider the 10 foot berm a fail-safe control of highwall
conditions at this area. Additionally, both Inspector Brodeur and Inspector Westerly testified
that during their investigation of the October 5 slide, Respondent’s employees stated that at least
one other significant slide had occurred in addition to the January and October slides at the HWY
59 mine. Tr. 187; Sec’y Ex. 5, 17-18. Tr. 365.
After considering all the above evidence, I find that the toe berm was an inadequate
control for the saturated conditions at the toe of the highwall. The toe berm failed to eliminate
the saturated condition of the material, relieve pressure from the overburden above, or stop
sliding from the toe of the wall from occurring. Additionally, given the dimensions of the 60
foot highwall and the excavator’s limited reach, it was impossible to construct a workable berm
high enough berm to contain a top to bottom failure of the highwall. Tr. 612, 677.

36 FMSHRC Page 1631

In summary, I have found that ground conditions were significantly saturated at the toe of
the highwall, this saturation was a hazard a prudent miner would have recognized, and that the
toe berm relied upon to control this condition was inherently inadequate. As such, I affirm the
underlying violation in Citation No. 8521047 and find that the Respondent violated 30 CFR §
77.1004(b) in failing to eliminate or barricade an unsafe ground condition.
3. Significant and Substantial
I have already found that Respondent violated a mandatory safety standard in failing
to adequately control saturated ground conditions at the toe of the highwall. This violation
contributed to the discrete safety hazard of the highwall sliding out from the toe and overtopping
the toe berm. As an excavator and several haul trucks continuously operated on the bench side
of the toe berm, a failure of the 60 foot highwall was reasonably likely to engulf, overturn, and
sweep over equipment and personnel present on the bench. Tr. 370. Workers caught in such a
mass of unconsolidated material were reasonably likely to suffer broken bones, blunt trauma, and
asphyxiation ranging in severity from lost time to possibly fatal injuries. Tr. 120. As such, the
evidence presented by the Secretary satisfies the four factor of the Mathies S&S test.
The Respondent contends in regards to the second Mathies element that even if there
was a technical violation of 77.1004(b), the routine sloughage did not present a safety hazard
because the berm contained routine sloughage. Resp. Br. 32. The Respondent also argues that
the October and January slides contained different material than normal and thus, the
characteristics of those slides should not be considered in the question of whether not the sliding
material present at the toe wall presented a discrete safety hazard. Resp. Br. 32 n. 9, 10.
Respondent’s witnesses did claim that the berm adequately contained routine sloughage. Tr.
376, 444-45, 744-45. However, Respondent’s witnesses also testified that the sliding saturated
material had the potential of spreading out and damaging equipment, exerted so much pressure
on the toe berm that the berm had to be recompacted, slid excessively to the point that workers
evacuated the bench as a pre-caution, and had severely damaged equipment at other mines in the
nearby region. Tr. 375-76, 622, 737-39. As such, I find that the evidence on the record,
including the testimony of Respondent’s employees, support the Secretary’s contention the
saturated ground conditions at this area constituted a discrete safety hazard.
The Respondent similarly contends in regards to the third Mathies element that the
ground conditions were not reasonably likely to lead to an injury because there was no evidence
of a significant amount of water or wet material breaching the berm under regular conditions.
Resp. Br. 33-34. The Respondent does acknowledge that there were prior instances in which
irregular sliding caused miners to evacuate the bench, but appears to contend that under normal
conditions workers had time to withdraw from the bench before a hazardous slide occurred.
Resp. Br. 33. However, in the two major slides that did occur, despite their best efforts to
outmaneuver the slides, at least three people were unable to avoid exposure to the rapid spread of
unconsolidated material, and one person was seriously injured. Tr. 83, 98, 120. I note the
specifics of the significant documented slides that did occur not as self-proving events, but as
supporting evidence that ground falls are reasonably likely to occur in overpowering fashion.
Additionally, as stated above, the 60 foot height of the highwall and saturated ground conditions
made it reasonably likely for a highwall failure in this specific set of circumstances to involve a

36 FMSHRC Page 1632

large amount of free flowing material. Thus, I find that the Respondent’s rebuttal argument on
this element unconvincing.
For the reasons stated above, I find that the Secretary has produced evidence establishing
the four required elements of the Mathies S&S test and that the Respondent’s rebuttal arguments
are insufficient. Therefore, I affirm Citation No. 8521047 as reasonably likely and S&S. I also
find that the violation did in fact cause Mr. Jones’ injuries to occur and that those injuries are
permanently disabling. Tr. 120.
4. 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.
The Secretary argues that the Respondent acted with high negligence as it was aware
the toe was sliding on a regular basis and failed to take any additional corrective action other
than relying upon the toe berm. Sec’y Br. 18-19. The Respondent states that there were no
indications that ground conditions at the highwall were hazardous prior to the October slide.
Resp. Br., 34. The Respondent points out that MSHA had inspected the mining methods in place
on numerous occasions prior to the October slide and had never issued any citations for ground
control violations. Resp. Br., 35. The Respondent specifically points to Inspector Westerly’s
acknowledgement that he observed Respondent mining in damp conditions in January and May
2011 and did not issue any citations as evidence Respondent had no reason to believe it was
negligently excavating the overburden. Id.; Tr. 350, 354.
After considering the testimony and arguments of the parties, I initially find that the
Respondent was actually aware of the saturated and regularly sliding material at the toe of the
highwall. While Respondent believed the berm was an appropriate control method, this belief
was not objectively reasonable, and I do not consider the use of the berm as a mitigating
negligence factor. Additionally, previous inspections by MSHA without highwall citations do
not stand as a mitigating factor in this situation. After noting that the May inspection occurred at
the drier Northeast area of the mine and at a different level of the mine, I credit Inspector
Westerly’s testimony that the ground conditions he observed in May were not nearly as saturated
as those present immediately prior to the October 5 slide. Tr. 332-33,354, 359. Additionally, the
January slide and other near overtopping events provided independent notice to Respondent
regarding the hazards of saturated material and insufficiency of the berms. Tr. 83, 375, 617.
Thus, as Respondent was aware of the violative conditions and there were not any
legitimate mitigating factors, I find that Citation No. 8521047 was the result of the Respondent’s
high negligence.

36 FMSHRC Page 1633

5. Unwarrantable Failure
For Citation No. 8521047, I find that the Secretary has produced sufficient evidence to
satisfy the five factor test considered by the Commission in evaluating unwarrantable failure
designations. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000).
a.

Extent and Duration of the Violation

I find that saturated ground conditions were extensive in the area of the October 5 slide
and a number of significant slides had occurred at the HWY 59 mine in the previous two years.
Foreman Howell testified that it was normal for a soupy sand and water mixture to run from the
toe of the highwall in the shifts prior to the October 5 slide. Tr. 62. Howell also testified that
that it had been necessary to add rock to the toe berm in order to “sheer” the berm up the evening
shift prior to the slide. Tr. 723; Sec’y Ex. 8, 4. Vice President Kizziah indicated that the
saturated condition at the toe of the highwall was an inherent characteristic of this area as the
shale rock level was impervious to the groundwater that migrated through the overburden. Tr.
614. Additionally, two major documented slides occurred in the space of nine months in this
specific Northwestern region of the mine, excessive sliding had previously prompted Respondent
employees to temporarily evacuate the bench on several occasions, and statements gathered
during the investigation of the October slide indicate that additional major slides separate from
the October and January 2011 slides had occurred in the previous two years. Tr. 83, 98, 187,
365, 375-76, 617.
b.

Notice to the Operator

Inspector Brodeur testified in regards to his communications to Respondent following the
January slide that,

Tr. 90.

…it was obvious to me as well as TRI that (berming) was not a
control method. I mean it didn’t work. The highwall slid out…
TRI realized that that didn’t work as well and told me that they
were not going to mine that West end of a pit. They were gonna
cease mining in the West end of the pit and drive in a different
direction, which would have been in the Northeast direction.”

However, Inspector Brodeur did not issue any violation in regards to the events that led
up to the January slide, did not issue a withdrawal order for this area of the mine, and did not
issue any safeguard directives regarding the hazards of the sliding saturated toe. Tr. 89.
Inspector Brodeur appears to have not issued official orders on this matter because of his belief
that the saturated condition of the highwall was isolated to that specific area and his reliance
upon Superintendent Bridges’ representation that Respondent would not mine in that area
anymore. Tr. 89-90. Inspector Brodeur also maintained that while he did not issue any clear
directives or warnings, that he believed the sum of his conversations with Superintendent
Bridges established the need to avoid or eliminate saturated ground conditions. Tr. 315-16. I
note that while MSHA did not issue any formal directives on this issue, Superintendent Bridges
made efforts to inform Inspector Brodeur that they were moving to a different, drier area of the

36 FMSHRC Page 1634

mine during the course of the January 2011 hazard complaint investigation. Tr. 741-42. As
such, it appears Respondent’s management was aware of Inspector Brodeur’s concerns regarding
the saturated ground conditions at the Northwest area of the Hwy 59 mine.
c.

Prior Abatement Efforts

The Respondent claims that the toe berm, and particularly the enlarged 10-12 foot toe
berm should be considered as a substantial abatement effort. Resp. Br. 45. However, as I have
noted above, given the 60 foot height of the highwall and the demonstrated mass of material
involved in the previous January slide, and the fact that other slides had come to the top of the
berm, I find that the toe berm was not a legitimate abatement effort. Tr. 83, 617. The toe berm
failed to eliminate the waterlogged nature of the material at the toe of the highwall, did not keep
the toe of the highwall from sliding out, and was incapable of containing the type of significant
slide Respondent was aware could occur after the January slide. Tr. 612, 676-77. As such, I find
that the Respondent has failed to show it conducted noteworthy abatement efforts prior to the
October 5 slide.
d.

Obviousness of the Hazard and Degree of Danger

The wet sliding nature of the material at the toe of the highwall was acknowledged by
Respondent employees Howell, Kizziah, and Bridges. Tr. 62, 617, 749-51. While they did not
subjectively consider this routine sliding a hazard, that belief was unreasonable, given the
occurrence of the January slide and the readily apparent pressures exerted upon the toe berm. Tr.
617, 737-39. Additionally, the regular sliding motion of the toe of a 60 foot highwall presented a
high degree of danger to the workers on that bench, as it was obvious that a significant slide
could produce enough material to sweep personnel and equipment over the adjacent bench. Tr.
83.
e.

Operator’s Knowledge of the Violation

Respondent was aware of, and in fact relied upon the wet and sliding condition of the toe
of the highwall to continue production at this area. Tr. 62, 678, 749-51. Again, given that the
Respondent’s ground control plan required movement in highwalls to be eliminated or
barricaded, and that saturated material had contributed to the previous January slide, it was
unreasonable for Respondent to disregard the hazards presented by the saturated sliding toe as
routine sloughage.
As such, I have found that the Secretary has presented sufficient evidence for all of the
Consolidation Coal unwarrantable failure factors. Furthermore, when considering the evidence
on this matter as a whole, I find that Respondent acted with a serious lack of reasonable care in
responding to the obvious destabilizing condition of the water saturated highwall toe. Thus, I
hold that Citation No. 8521047 was the result of the Respondent’s unwarrantable failure to
comply with the Mine Act.

36 FMSHRC Page 1635

E.

Order No. 8521048
1. The Violation
Inspector Brodeur alleged in part within Order No. 8521048 that:
Proper daily inspections are not being conducted at this mine site.
…A section of the highwall approximately 230 feet across, 80 feet
outward and 60 feet in height collapsed sending a wave of
saturated sand and gravel material into an excavator and 100 ton
haul truck.... An inspection of the highwall at the mine site after
the accident indicates hazards existed that would be evident to
even a casual observer, including loose material overhanging the
pit, loose broken rocks at numerous locations on the highwall,
water seepage from the highwall at several locations (including the
first 60 feet of material which consist of unconsolidated sand and
gravel), and the only bench on the 190 foot highwall is full,
allowing material to fall into the pit. A review of the inspection
records … indicates no highwall hazards were present even though
hazards are clearly evident and have existed for a considerable
time period.

Sec’y Ex. 6, 1-2.
Brodeur determined that this failure to note hazards violated 30 CFR § 77.1713(a), an
injury had occurred, the injury was permanently disabling, affected 1 person, the violation was
S&S and the result of the operator’s unwarrantable failure to comply with the Mine Act. Sec’y
Ex. 6. The Secretary proposed a specially assessed penalty of $70,000.00. Sec’y Proposed
Assessment, Exhibit A.
30 CFR § 77.1713(a) mandates:
At least once during each working shift, or more often if necessary
for safety, each active working area and each active surface
installation shall be examined by a certified person designated by
the operator to conduct such examinations for hazardous
conditions and any hazardous conditions noted during such
examinations shall be reported to the operator and shall be
corrected by the operator.
As such, the Secretary must show that the conditions listed in Order No. 8521048 existed
prior to the October slide, that a reasonably prudent miner would have identified these conditions
as hazards requiring corrective action, and that Respondent failed to record these conditions in
their examination records.

36 FMSHRC Page 1636

As noted above, Respondent Foreman Michael Howell stated that prior to the October 5
slide he observed a soupy mixture of material running out from the toe of the slope. Tr. 62.
Inspector Brodeur also testified credibly that during his investigation immediately after the slide,
he observed water seepage, overhanging rocks, and full catch benches in areas adjacent to the
slide. TR. 109-114, 116-18; Sec’y Ex. 6, 7-10. When presented with the Inspector Brodeur’s
investigation photos, Respondent Foreman, Steve Smith, confirmed that while the slide itself had
not yet covered the floor of the pit, the October 5 investigation photos depicted the conditions
that were present at the overburden and shale rock highwall prior to the slide. Tr. 409-10.
These photos show several large areas where a significant amount of water seepage
flowed from the bottom of the unconsolidated overburden layer over and across the face of the
shale rock highwall. Tr. 109-110. Sec’y Ex. 6, 7-9. The last photo of the series shows a profile
view of the highwall at the edge of the overburden face and the vertical shale rock highwall
below. Tr. 117; Sec’y Ex. 6, 10. From the photo it appears that the overburden has pushed out
to the very edge of the shale rock face and that there is not a horizontal catch bench. Id. In two
separate investigation photos, a section of the overburden highwall has washed down across the
shale rock face at the right hand side of the photos, as the dark gray shale rock is covered with
red and tan clay and sand. Tr. 119; Sec’y Ex. 6, 8-9. It also appears that several large boulders
and/or clay consolidations project from the upper face of the overburden. Sec’y Ex. 6, 8-9
However, Foremen Smith and Howell both maintained at hearing that none of these
conditions, including the sliding of the toe, were hazardous or required notation in their daily
pre-shift examinations. Tr. 405-06, 412-13, 722. The Respondent also argued that Order No.
8521048 cannot pertain to hazards present at the area of the slide because it does not specifically
reference the sliding material of the toe. Resp. Br. 51-52. The Respondent additionally states
that the water seepage present on the walls was normal for this area. Resp. Br. 57; Tr. 448-49,
Tr. 719-20. The Respondent finally contends that the there was a permanent catch berm in place
at the toe of the overburden highwall adjacent to the slide area and any of the irregularities along
the face of this highwall cannot be considered overhanging, as the photos indicate that the
overburden is sloped back from vertical. Resp. Br. 58-59.
After considering the evidence presented and the parties’ arguments, I find that the
Secretary has established there were obvious hazards present at the area of the slide and the
adjacent highwall which Respondent failed to either note or correct. I also find that the
Respondent’s arguments on these points are insufficient and contrary to the hazards identified in
their own ground control plan.
As an initial matter, I find that Order No. 8521048 does include the area of the slide as it
describes the collapse of the highwall and notes that this slide was comprised of “saturated sand
and gravel.” Sec’y Ex. 6, 1. Thus, the Order specifically lists the saturation hazard of the
overburden in the area that collapsed. Furthermore, as both Foreman Smith and Howell
confirmed that the bottom of the overburden was wet and sliding out from the toe of the
highwall, it is clear that the saturated nature of the toe in this area was obvious prior to the slide.
Tr. 62, 405-06. Nevertheless, Smith and Howell failed to record the saturated material or regular
sliding of the toe, recording that the highwall was “ok”, despite a notation on Oct. 4th that it had
been necessary to shore up the berm where the excavator was digging from the “sand”

36 FMSHRC Page 1637

overburden. Tr. 63-64, 405; Sec’y Ex 8, 4. For these reasons, I find that at the area of the slide,
hazardous saturated ground conditions were evident prior to the slide and that Respondent failed
to record these hazards.
For the areas adjacent to the area of the slide, both Respondent employees and Inspector
Brodeur stated that some water seepage was common at highwalls in mines in this area of
Alabama. However, the fact that a condition is common in a particular area does not render that
condition harmless. Inspector Brodeur credibly testified that water seeping from the highwall
could wash out smaller binding material and make the highwall unstable. Tr. 111. Indeed,
Respondent’s own ground control plan specifically noted that:
Water seepage from rainfall or the natural watershed from eroding
at the highwall will be controlled by using a settling pond…
Sec’y Ex. 9, 6-15.
While it appears that Respondent did make efforts to divert groundwater in some active
areas of excavation and did set pumps at the lower pit area, it is also clear that Respondent did
not record the areas in which seepage was occurring, give any indication of how much seepage
was occurring, or list the manner in which that seepage was controlled, if at all. By failing to
record the seepage Respondent failed to maintain an inspection system that allowed its
employees to gauge and track the severity of ongoing seepage and erosion.
It is also clear from the inspection photos and testimony that the bench above the shale
rock on the North wall was full with loose unconsolidated overburden and that there was no
horizontal catch bench between the overburden slope and vertical face of the shale highwall. Tr.
117; Sec’y Ex. 6, 10. I find the Respondent’s claim that there was a functioning permanent catch
berm at this area unconvincing. In the investigation photos, the relatively steep face of the
overburden highwall has a constant unbroken slope that continues down to the vertical face of
the shale highwall. Sec’y Ex. 6, 10. As such, once a stray rock or section of highwall began to
roll or slide, there was neither a catch bench nor functional catch berm present that would
contain even a small slide of unconsolidated material. Sec’y Ex. 6, 10. Indeed, as previously
noted, the investigation photos show that in one area a large amount of sandy overburden has
spilled down across the shale highwall. Sec’y Ex. 6, 7.
Although the majority of photos are taken from a distance and the one close up view of
the overburden only shows a narrow vertical band of the overburden slope, the investigation
photos do give some support to Inspector Brodeur’s testimony that there were segments of
broken up sandstone overhanging the highwall. Tr. 244-45. Respondent witnesses testified that
there were no overhanging rocks in this area and the Respondent has argued that the overburden
was not steep enough for rocks to overhang. Tr. 448, 719; Resp. Br. 60-61. While it is clear
from the photos that the overburden highwall is less than vertical, I found Inspector Brodeur’s
testimony on this matter credible when viewed in conjunction with the investigation photos, and
I rely on his first hand observations and expertise in determining that there were rocks present on
the unconsolidated overburden highwall which could topple over and slide or fall down to the pit
below.

36 FMSHRC Page 1638

Within their daily examination records, Respondent’s foremen uniformly described the
highwall as “ok” and failed to note the presence of sliding saturated material in areas of active
excavation or water seepage, full catch benches, or overhanging rocks at the North area of the
overburden highwall. Two notations from the evening shifts on October 3rd and October 4th do
state that the crew had “hauled rock to 150 to shear sand up” and “sheared rock up for Trackhoe
digging sand.” Tr. 720, 723; Sec’y Ex. 8, 4-5. However, as explained in detail above, these
entries only demonstrate that Respondent failed to recognize or record the saturated ground
material as a significant hazard that required corrective action beyond reinforcing the toe berm.
Therefore, I affirm the underlying violation in Order No. 8521048, as the Secretary has
established the Respondent failed to record or correct obvious hazardous conditions a reasonably
prudent miner would have recognized.
2. Significant and Substantial
I have already found that Respondent violated a mandatory safety standard in failing to
record obvious hazardous ground conditions per the requirements of 30 CFR § 77.1713(a). By
failing to adequately inspect the highwalls, this violation contributed to the discrete safety
hazards of uncorrected unstable and sliding ground conditions at the overburden highwall.
Given the 60 foot height of the overburden highwall, the saturated condition of the toe, the noncohesive nature of the overburden, and the presence of many workers on both the Brookwood
and Milldale levels, it was reasonably likely for a significant slide to occur, strike personnel and
cause injuries. Tr. 62, 370-71, 665-666. Additionally, given that the shale rock highwall was
approximately 40 feet high, it was reasonably likely that even a small slide of unconsolidated
material on the North wall could fall to the pit below and strike workers on the drill crew below.
Tr. 70, 413. Based on the height of the highwall and its unconsolidated nature, it was reasonably
likely for a worker struck by either a mass of unconsolidated material or a stray boulder to suffer
broken bones, blunt trauma, and asphyxiation ranging in severity from lost time to possibly fatal
injuries. Tr. 120. As such, the evidence presented by the Secretary satisfies the four factors of
the Mathies S&S test.
The Respondent primarily relied upon the same S&S arguments for Order No. 8521048
as it did for Citation No. 8521047. Resp. Br., 62. I again incorporate my S&S analysis from
Citation No. 8521947 in rejecting these arguments for Order No. 8521048. The Respondent also
argues that the conditions on the North wall adjacent to the slide cannot be considered S&S as
Inspector Brodeur did not issue individual ground control violations based on these conditions.
Resp. Br., 64. The Respondent also states that Inspector Brodeur allowed abatement efforts to
occur on the floor of the pit without correcting conditions on the highwall above. Id. I reject
these arguments on three separate grounds. First, I have already found that the Respondent
failed to adequately inspect or record the hazardous nature of the saturated sliding toe at the West
area of the highwall and that this hazard was S&S within the context of both Citation No.
8521047 and Order No. 8521048. As such, the failure to adequately inspect the West area of the
highwall where the October slide occurred provides an independently sufficient basis to sustain
the Secretary’s S&S determination for Order No. 8521048. Secondly, I have found above that
failure to adequately inspect the North highwall was also S&S in that falling material would fall

36 FMSHRC Page 1639

over 40 feet and was reasonably likely to strike workers present on the drill bench below. Tr.
413. Although MSHA did not issue separate ground control violations for the specific
conditions of the North overburden highwall, that does not diminish the demonstrated hazards
presented by the failure to adequately inspect this area. Finally, although not critical to my S&S
determination, Inspector Brodeur testified credibly that abatement efforts were not conducted at
the foot of the shale rock highwall where sliding material would be reasonably likely to cause an
injury. Tr. 240.
For the reasons stated above, I find that the Secretary has established the four required
elements of the Mathies S&S test and that the Respondent’s rebuttal arguments are insufficient to
overcome the weight of evidence presented. As such, I affirm Citation No. 8521048 as
reasonably likely and S&S. I also find that the violation did in fact contribute to Mr. Jones’
injuries and that those injuries are permanently disabling. Tr. 120.
3. Negligence
After reviewing the evidence and testimony presented, I find that the saturated condition
of the overburden toe on the West wall and the water seepage, full bench and loose overhanging
rocks on the North wall were readily apparent hazardous conditions that should have been
identified during pre-shift examinations. Respondent’s witnesses testified consistently that all of
these conditions were visible prior to the October slide but stated that they did not consider them
hazardous. Tr. 62, 410-11, 608. For the reasons detailed above regarding the likelihood of
highwall failure and ground fall events, I find that this subjective belief was unreasonable. I
found Inspector Brodeur and Inspector’s Westerly statements that they had not observed these
sorts of hazardous conditions on previous inspections of the mine consistent, straight forward
and credible. Tr. 71, 270, 286, 332-33, 359. Had they done so I have no reason to doubt that
they would have issued citations for those conditions to the Respondent. Although Respondent
recorded daily pre-shift examinations after receiving a 30 CFR 77.1713 (c) citation in December
of 2009, they did not alter or bolster their inspection methods after failing to anticipate the
January 2011 slide. Tr. 406-07, 680, 690, 758-759. After the occurrence of the January slide
and other instances of excessive sliding, Respondent was particularly remiss in continuing to
consider water seepage and saturated ground material as routine non-hazardous conditions that
did not merit recording or control beyond the continued use of the working berm or last-second
evacuations. Tr. 83, 375-76, 617.
As such, Respondent has not established any mitigating circumstances in regards to the
failure to identify, record, or correct the apparent hazardous conditions. For these reasons, I find
that Order No. 8521048 was the result of the Respondent’s high negligence.
4.

Unwarrantable Failure

For Citation No. 8521048, I find that the Secretary has produced sufficient evidence to
satisfy the five factor test considered by the Commission in evaluating unwarrantable failure
designations. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000).

36 FMSHRC Page 1640

a.

Extent and Duration of the Violation

The saturated condition of the soupy sand/water mixture on the West wall, and the water
seepage, full bench, and overhanging material on the North wall were spread out over a distance
of several hundred feet. Foreman Howell also testified that it was normal for the soupy
sand/water mixture to run from the toe of the slope and a Respondent witness Howell testified it
was necessary to shore up the working berm on the shift prior to the slide. Tr. 62, 723; Sec’y Ex.
8, 4. As such, I find that the excessive saturated condition at the toe of the slope on the West
wall was present for at least several shifts prior to the October slide. It also clear from Inspector
Brodeur’s testimony and notes that similar conditions were present prior to the January slide. Tr.
168-69; Sec’y Ex. 4, 10. Additionally, given the developed appearance of the North shale rock
highwall, the presence of extensive water stains and one notable sand slide area on the North
highwall, it appears that these conditions had been present on the North wall for many shifts. Tr.
113-114; Sec’y Ex. 6, 7-10.
b.

Notice to the Operator

Inspector Brodeur issued the Respondent a violation of 30 CFR 77.1713(c) for a failure
to record pre-shift examinations in December 2009. Tr. 267; Sec’y Ex. 11. Although MSHA
issued this violation under the recordkeeping section of the inspection standard, this previous
citation provided the Respondent with specific notice that inspecting and recording hazardous
ground conditions was a critical safety requirement.
c.

Prior Abatement Efforts

As noted above, although the Respondent failed to anticipate the January slide, they did
not offer any evidence of increased monitoring or testing of water saturation or slope stability.
Tr. 680, 690, 758-759. While Truck Driver Williams’ testimony regarding temporary
evacuations after excessive sliding demonstrates employees were aware of hazards, it also shows
that Respondent took a reactive rather than proactive approach in responding to this hazard. Tr.
375-76. As Respondent failed to show it had attempted to improve inspection efforts after the
January slide, I find that Respondent has not established that it carried out notable abatement
efforts.
d.

Obviousness of the Hazard and Degree of Danger

As I have found repeatedly above, the January slide and other near overtopping events
made the continued disregard of saturated conditions at the highwall toe an obvious hazard.
Additionally, the possibility of material sliding down the unprotected North overburden highwall
was also made obvious by the presence of sand slides on the North highwall. Tr. 114, Sec’y Ex
6, 9. Given the 60 foot height of the unconsolidated overburden highwall, and the 40 foot near
vertical drop to the Milldale bench below, any ground slide in this area, whether large or small,
presented a significant degree of danger to workers on both levels of the pit. Tr. 413.

36 FMSHRC Page 1641

e.

Operator’s Knowledge of the Violation

The Respondent was aware of the saturated toe, water seepage, full bench, and
overhanging rocks present at the active area of the HWY 59 mine. Tr. 62, 410-11, 608.
However, the Respondent’s witnesses did not subjectively consider these conditions a hazard.
Tr. 448, 647-48, 719-23. As such, the Respondent did not fail to record those conditions through
willful intent or a plan to conceal hazards which would constitute reckless disregard. However,
the obviousness of the hazards and previous slide events made it unreasonable for Respondent to
continue disregarding saturated ground conditions in particular.
Based on these findings, I hold the Secretary has presented sufficient evidence for all of
the Consolidation Coal unwarrantable failure factors. Furthermore, when considering the
evidence on this matter as a whole, I find that Respondent acted with a serious lack of reasonable
care in conducting thorough inspections of the developing highwall. Thus, I hold that Order No.
8521048 was the result of the Respondent’s unwarrantable failure to comply with the Mine Act.
IV. PENALTY
In determining the appropriate penalty for a violation, 30 CFR §100.3 generally directs
me to consider:
(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.
For these citations, the Secretary submitted a special assessment narrative form
per 30 CFR § 100.5, stating that the violation was related to a non-fatal sliding material
accident. Sec’y Narrative Findings, 1. The special assessment narrative form restated
Inspector Brodeur’s gravity and negligence determinations and proposed the maximum
penalty of $70,000.00 per violation allowed under Section 110 (a)(1) of the Act. Id. at 2.
MSHA had issued Respondent seven violations in the 15 months previous to this
incident, none of which were ground control violations. Sec’y Prop. Assessment,
Exhibit A. This violation history would normally correspond to a minimal amount of
penalty points under 30 CFR § 100.3: Table VI. The Hwy 59 mine is a midsize mine
while Walter Energy, the Controlling entity, is a large operator. Sec’y Prop. Assessment,
Exhibit A. Respondent was highly negligent in failing to identify, correct and or
eliminate the saturated ground conditions in places of active excavation, but as MSHA
did not issue any formal directives regarding this condition, it did not act in willful
violation of a site specific MSHA order. The Respondent has not asserted that the
proposed penalty of $70,000.00 per violation would affect its ability to continue
operations. The violations were significant and substantial violations of the Mine Act as

36 FMSHRC Page 1642

they were reasonably likely to, and did in fact, result in a serious injury. The Respondent
acted with good faith in promptly removing personnel from the area and ceasing all
mining activities at the HWY 59 mine. Sec’y Br., 28.
The Special Assessment Narrative form restated the gravity and negligence
determinations of Inspector Brodeur and listed several facts that supported these negligence
determinations. Sec’y Narrative Findings, 1. However, neither the special assessment narrative
form, nor the Secretary’s presentation of evidence at trial nor his post hearing brief articulated a
specific reasoning for increasing the monetary penalties beyond the amounts that would have
been generated by the standard 30 CFR § 100.3 penalty tables. As such, I find that the Special
Assessment Narrative Form and the specially assessed penalty amounts provide no substantive
guidance to my de novo determination of the appropriate penalty amount.
As a starting point, it appears that Respondent would have received a normally assessed
penalty under 30 CFR § 100.3 of $7,774 for Citation No. 8521047 after accounting for all
gravity and negligence determinations, including the actual occurrence of an injury to a single
individual.6 As Order No. 8521048 involved a single repeat violation of 30 CFR § 77.1313, it
would have likely received a slightly higher regularly assessed penalty of $8,421. However, I
note that the gravity of both violations is greater than that considered by the normal penalty
calculation, as the violations exposed all workers involved in the excavation of the overburden to
potentially fatal injuries. Additionally, Respondent resumed mining the area where it had
informed Inspector Brodeur it would no longer mine without notifying MSHA, decreasing
MSHA’s ability to promptly respond to changing conditions at the HWY 59 mine. Tr. 180.
For these specific reasons, I find that a penalty of $50,000.00 per violation serves as an
appropriate penalty and deterrent to Respondent and other operators, warning them of the
economic repercussions of ignoring obviously hazardous ground conditions.

6

Upon reviewing the 30 CFR 100.3 penalty tables, Citation No. 8521047 would have
received a total of 113 penalty points while Citation No. 8521048 would have received 114
penalty points.

36 FMSHRC Page 1643

V. ORDER
Tuscaloosa Resources, LLC is hereby ORDERED to pay the Secretary of Labor
the total sum of $100,000.00 within 30 days of this order.7

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

Distribution: (First Class U.S. Mail)
Sophia Haynes, Office of the Solicitor, U.S. Department of Labor
61 Forsyth Street, SW, Atlanta, GA 30303
Warren Lightfoot, Maynard Cooper & Gale, PC,
1901 Sixth Avenue, 2400 Regions Harbert Plaza Birmingham, AL 35203
Josh Bennett, Maynard Cooper & Gale, PC,
1901 Sixth Avenue, 2400 Regions Harbert Plaza Birmingham, AL 35203

7

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 1644

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
th
41 19 ST. SUITE 443
DENVER, CO 80202-2500
TELEPHONE: 3003-844-5266 / FAX: 303-844-5268

June 11, 2014
POCAHONTAS COAL COMPANY, LLC,
Contestant,

v.

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

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CONTEST PROCEEDINGS
Docket No. WEVA 2014-642-R
Safeguard No. 7169714; 01/30/2014
Docket No. WEVA 2014-646-R
Safeguard No. 9002753; 02/04/2014
Docket No. WEVA 2014-647-R
Safeguard No. 9002751; 02/04/2014
Docket No. WEVA 2014-648-R
Safeguard No. 9002752; 020/4/2014
Docket No. WEVA 2014-649-R
Safeguard No. 9002750; 02/04/2014
Affinity Mine
Mine ID: 46-08878

ORDER OF DISMISSAL
These cases are before me on Notices of Contest filed by Pocahontas Coal Company
pursuant to Section 105(d) of the Federal Mine Safety and Health. These contests are directed
not at a particular citation or order but, rather, at five written notices to provide safeguard issued
by MSHA pursuant to Section 314(b) of the Act. On March 24, 2014 the Secretary filed a
motion to dismiss for lack of jurisdiction. Sec’y Mot. 1. Pocahontas raises a number of
arguments in its notice of contest and its response to the motion to dismiss, however, for reasons
that follow, I find that the Commission is without jurisdiction to consider these arguments in the
context of these proceedings and, accordingly, I DISMISS these cases.
On January 30th and February 4th, 2014 MSHA issued the five safeguards that are
disputed in these dockets. In each case, MSHA notified Pocahontas that a mine specific
requirement for safety, which related to the transportation of men and materials at the Affinity
Mine, needed to be put in place. The “Condition or Practice” sections of the respective
safeguards state that the documents are notices to provide safeguard and set forth the
requirements MSHA seeks to impose. On February 27, 2014, Pocahontas filed these notices of
contest pursuant to Section 105(d) of the Act to contest the issuance of each of the five
safeguards.
The Secretary argues in its motion to dismiss that the jurisdiction of the Commission does
not extend to an independent review of a notice to provide safeguard. The Secretary relies on the
language in Section 105(d) of the Mine Act and asserts that 105(d) does not confer specific

36 FMSHRC Page 1645

jurisdiction to hear a contest arising from a notice to provide safeguard and, instead, jurisdiction
attaches only once a citation or order has been issued for a violation of the underlying safeguard.
In its response the mine operator argues that, pursuant to 105(d) of the Act, the Commission does
have jurisdiction to hear arguments on the initial notice to provide safeguard, and that to deny
jurisdiction is a violation of the mine’s right to due process.
While the Commission has acknowledged a mine operator’s right to contest the validity
of a safeguard in the context of contest to a citation issued pursuant to a violation of the
underlying safeguard, see e.g., Southern Ohio Coal Co., 14 FMSHRC 1 (Jan. 1992), it has not
addressed the question of whether it has jurisdiction to hear a contest of a notice to provide
safeguard in the context of a separate proceeding prior to the issuance of a citation or order for a
violation of the safeguard. Nevertheless, Commission judges have declined to review the
validity of an underlying safeguard prior to the issuance of a citation for a violation of the
underlying safeguard. Beckley Coal Mining Co., 9 FMSHRC 1454 (Aug. 1987) (ALJ);
Colorado Westmoreland, Inc., 10 FMSHRC 1236 (Sep. 1988) (ALJ); Jim Walters Resources,
Inc., 18 FMSHRC 380 (Mar. 1996) (ALJ); Jim Walters Resources, Inc., Unpublished Order of
Dismissal dated April 22, 1996, Docket No. SE 96-118-R (ALJ). I am aware that there is an ALJ
decision that reaches an opposite conclusion, but I am not bound by that case, nor do I agree with
the reasoning set forth in that matter. Affinity Coal Co., LLC, Unpublished Order Denying
Motion to Dismiss dated August 29, 2013, Docket No. WEVA 2013-700-R et al. (ALJ).
Similarly, the Commission has not addressed whether it has jurisdiction to hear a
dedicated contest of a written notice of pattern of violations, and its judges, when addressing
arguments similar to those raised in these matters, have reached conflicting results on that
question. See Bledsoe Coal, Unpublished Order dated Nov. 11, 2011 (ALJ) (Judge William
Moran found that the Commission did have jurisdiction to hear a contest of a written notice of
pattern of violations); Brody Mining LLC, 36 FMSHRC ___, slip op. at 4, Docket No. WEVA
2014-81-R (Jan. 30, 2014) (Chief Administrative Law Judge Robert Lesnick found that the
Commission was without jurisdiction to adjudicate the mine operator’s contest of the written
notice of pattern of violations by itself).
The Mine Act does not grant the Commission unfettered jurisdiction. In Rushton Mining
Co., 11 FMSHRC 759, 764 (May 1989) the Commission stated that it “is an agency created
under the Mine Act with certain defined and limited administrative and adjudicative powers.”
Given that the Commission is “an administrative agency created by statute, it cannot exceed the
jurisdictional authority granted by Congress.” Black Beauty Coal Co., 34 FMSHRC 1856, 1860
(Aug. 2012) (citing Kaiser Coal Corp., 10 FMSHRC 1165, 1169 (Sept. 1988)). A review of the
Mine Act reveals no statutory authority for the Commission to hear a contest to a notice to
provide safeguard in the context of a dedicated proceeding. Pocahontas has brought this action
pursuant to section 105(d) of the Act. Section 105(d) provides mine operators with the right to
contest, among a limited number other things, the issuance or modification of citations and
orders. 30 U.S.C. § 815(d). Notably, the section does not afford a right to contest notices to
provide safeguard. Further, the legislative history, the Secretary’s regulations, Commission case
law, and the Commission’s Procedural Rules do not reveal any language which could be
interpreted to grant the Commission jurisdiction to hear a contest of a notice to provide
safeguard.

36 FMSHRC Page 1646

Safeguards are a unique enforcement tool available to the Secretary. Section 314(b) of
the Mine Act grants the Secretary authority to issue “[o]ther safeguards adequate, in the
judgment of an authorized representative of the Secretary, to minimize hazards with respect to
transportation of men and materials.” 30 U.S.C. § 874(b). A representative of the Secretary,
generally an inspector, may issue a notice to provide safeguard only after “determin[ing] that
there exists . . . an actual transportation hazard this is not covered by a mandatory standard.”
Southern Ohio Coal Co., 14 FMSHRC 1, 8 (Jan. 1992). The Commission has held that, because
a notice to provide safeguard is issued by an inspector and is not subject to the notice and
comment procedural protections of section 101, the language of a notice to provide safeguard
“must be narrowly construed” and is “bounded by a rule of interpretation more restrained than
that accorded promulgated standards.” Southern Ohio Coal Co., 7 FMSHRC 509, 512 (Apr.
1985). Further, a notice to provide safeguard “must identify with specificity the nature of the
hazard at which it is directed and the conduct required of the operator to remedy such hazard.”
Id.; See also Cyrus Cumberland Resources Corp., 19 FMSHRC 1781, 1784-1785 (Nov. 1997).
Given their unique nature, Safeguards cannot be construed to be either citations or orders.
The Commission has stated that “in considering the meaning of the Mine Act, we must ‘give
effect to the unambiguously expressed intent of Congress.’” Revelation Energy, 35 FMSHRC
3333, 3337 (Nov. 2013) (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 843 (1984)). Here, the distinction between a notice to provide safeguard and a citation
or order issued subsequent to that notice is clear. The language of the Act makes clear that the
notice to provide safeguard is a separate document which must be issued prior to any citation or
order issued pursuant to section 314(b). Even if one could read some ambiguity into the
language of the Act, Congress clearly intended to distinguish written notices issued pursuant to
section 314(b), which are meant to act similar to a mandatory standard and put the mine on
notice that in the future, the act or omission may result in a citation or order, from those citations
or orders. If Congress had intended the Commission to hear contests to notices to provide
safeguard, it would have said so or at least equated the notice to provide safeguard with citations
or orders, which are subject to contest proceedings. Instead, Congress differentiated the notice to
provide safeguard from citations and orders.
Contestant is not without remedy on the issue and may properly challenge the notice to
provide safeguard in the context of a contest to a citation or order issued for violation of the
safeguard. Section 105(d), as mentioned above, provides mine operators with the right to contest
the issuance or modification of citations and orders. 30 U.S.C. § 815(d). The section then
charges the Commission with affording an opportunity for a hearing and then issuing “an order .
. . affirming, modifying, or vacating the Secretary’s citation, order, or proposed penalty, or
directing other appropriate relief.” Id. Section 105(d)’s “unambiguous[] . . . broad grant of . . .
authority to direct ‘other appropriate relief’” allows the Commission to address a notice of
pattern of violations in the context of a contest to a citation or order issued for violation of that
safeguard. See North American Drillers, LLC, 34 FMSHRC 352, 356 (Feb. 2012). If and when
a citation or order is issued that alleges a violation of the one of the safeguards herein,
Pocahontas may file a notice of contest or contest any penalty that is assessed as a result of the
citation, and at that time, also raise the validity of the safeguard as a defense to the violation. If

36 FMSHRC Page 1647

Pocahontas wishes to pursue the arguments set forth in its notice of contest, it may properly do
so in the context of those proceedings.
The fact that the mine can contest any citation or order issued as a result of the notice to
provide safeguard also negates the mine’s due process argument. Due process claims require the
Commission to consider three factors when a deprivation to a property interest occurs: (1) "the
private interest that will be affected by the official action;" (2) the risk of an "erroneous
deprivation of such interest through the procedures used" and the value of additional or substitute
procedural safeguards; and 3) the Government's interest, including ''the fiscal and administrative
burdens that the additional or substitute procedural requirement would entail." Mathews v.
Eldridge, 424 U.S. 319, 335 (1976). Due process, as described by the Court in Mathews, is “not
a technical conception with a fixed content unrelated to time, place, and circumstances,” and
further, “is flexible and calls for such procedural protections as the particular situation demands.”
Id.(citing Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d
1230 (1961); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484
(1972).
Here, Pocahontas argues that its property interest will be unjustly deprived should it not
be able to immediately contest the notice to provide safeguard. It suggests that when a safeguard
is issued it faces the “immediate choice” of spending “oftentimes large sums of money to comply
with the safeguard” or accepting an order “effectively taking the equipment out of service or
shutting down the mine.” Pocahontas Resp. to Mot. to Dismiss. 17. Moreover, it argues that
there are no current procedures in place which can protect Pocahontas from erroneous
deprivation. Finally, Pocahontas argues that any government interest in having MSHA respond
“flexibly and quickly to unsafe conditions” must be subjected to “some type of check and
balance that affords protection to mine operators.” Id. at 18.
I have already found that Mine Act does not provide the Commission with a formal
mechanism to exert jurisdiction over this matter. I agree with the Secretary’s argument that,
because the Act does not provide the court with subject matter jurisdiction, it would amount to
“bootstrapping” if the court could use an inquiry into whether constitutional due process has
been violated to establish jurisdiction. Sec’y Reply. 5-6. Certainly I cannot create jurisdiction
where none exists. Even so, I find that due process has not been violated. While a formal
mechanism to immediately challenge the notice to provide safeguard may not exist, less formal
mechanisms, such as a request for a technical citation, as is often used in the context of plan
disputes, could seemingly be used to immediately contest the issue on an expedited basis. See
Mach Mining, 34 FMSHRC 1784, 1787 n. 8 (Aug. 2012). Further, the Secretary concedes that,
if the operator wishes to bring a facial challenge, it may properly do so in Federal District Court.
Finally, I find that the government interest in flexibly and quickly addressing hazards related to
the transportation of men and materials is an extremely compelling one. While Pocahontas
asserts that no check and balance exists, I disagree, and find that the current system already does
provide an opportunity for a check on the validity of the safeguard through the ability to contest
the notice to provide safeguard following the issuance of citation or order for violation of such.

36 FMSHRC Page 1648

This docket contains no citations or orders, only the notice to provide safeguard that was
issued to the mine, prior to the issuances of any 104(a) citation or order. Therefore, the above
captioned contest proceedings are DISMISSED.

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

Distribution:
Benjamin Chaykin, U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Boulevard,
22nd Floor West, Arlington, Virginia 22209-2247
Robert Huston Beatty, Jr., Dinsmore & Shohl, LLP, P.O. Box 11887, 900 Lee Street, Suite 600,
Charleston, WV 25339

36 FMSHRC Page 1649

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

June 12, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,
v.
THE DOE RUN COMPANY,
Respondent.

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CIVIL PENALTY PROCEEDING
Docket No. CENT 2013-605-M
A.C. No. 23-00457-325635-01

Mine: Buick Mine/Mill

DECISION
Appearances:

Carol Liang, Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado, for Petitioner;
R. Henry Moore, Jackson Kelly, PLLC, Pittsburg, PA, for Respondent.

Before:

Judge Miller

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, Mine Safety and Health Administration (“MSHA”) against The Doe Run Company
(“Doe Run”) at its Buick Mine/Mill, pursuant to sections 105 and 110 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §§ 815 and 820. This docket involves one citation with a
penalty assessed pursuant to section 110(i) of the Mine Act. The parties presented testimony
and evidence at a hearing held on April 17, 2014 in St. Louis, Missouri.
The parties agree that Doe Run is an operator as defined by the Act, and is subject to the
jurisdiction and provisions of the Mine Safety and Health Act. The parties further agree that the
citation was abated within the allowed time and the penalty of $2,106.00 will not inhibit the
mine’s ability to continue in business. Jt. Stip. 11. Buick Mine/Mill consists of an underground
mine that mines lead, copper and zinc, and a surface mill. The mine is located near Rolla,
Missouri.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
On May 15, 2013, Inspector Dale Coleman with the Department of Labor’s Mine Safety
and Health Administration (“MSHA”) issued Citation No. 8688248 under section 104(d)(1) of
the Act for an alleged violation of 30 C.F.R. § 57.15005, which requires that “safety belts and
lines shall be worn when persons work where there is danger of falling.” The citation alleges
that a miner was working while standing on top of an electrical cabinet that was seven feet tall,
without wearing fall protection. Inspector Coleman designated the alleged violation as
reasonably likely to result in a permanently disabling injury, significant and substantial, one

36 FMSHRC Page 1650

person affected, and the result of high negligence on the part of the operator. The Secretary
proposed a penalty of $2,106.00 for this citation.
On May 15, 2013, two electricians, Marion Mills and Kevin Brady, were assigned to
change out an electrical switch in the motor control room (“MCC”) at the mine. Mills and Brady
were both experienced miners. Andrew Wlaschin, an electrical engineer, was responsible for
supervising and directing the work of Mills and Brady while they completed the job. Wlaschin
had been at the mine for less than a year and, while he had worked on various projects, had never
performed the job which had been assigned to Mills and Brady.
The assigned task required the two electricians to disconnect a cable in an electrical
cabinet and pull the cable out from inside its location. The top of the cabinet, which is roughly
34 inches by 36 inches in area, is approximately 7 feet, 7 inches above the cement floor below.
Two pipes extend vertically from the top of the cabinet to the ceiling above.
Prior to beginning the work, the electricians locked out power to the cabinet at a
substation location. Locking out the power to the cabinet and work area also disabled the lights
in the work area. As a result, the electricians worked with cap lamps and flashlights. After
locking out the power, Mills removed the door on the high voltage center, and then moved to an
adjacent cabinet to remove another door. Brady helped Mills with the removal and, as Mills
began disconnecting the cable within the box, Wlaschin reminded Brady that he was required to
wear a respirator. Brady left the area for a short time to locate the respirator and when he
returned saw that Mills was inside the cabinet disconnecting the cable and Wlaschin was at his
side. Brady then got a ladder, which he positioned next to the cabinet and climbed to the top of
the cabinet to help pull the cable.
Wlaschin saw Brady return with his respirator, get the ladder, and climb to the top of the
cabinet, but he asserts that he was distracted by watching Mills and looking at prints, and did not
see Brady step off of the ladder and climb on top of the cabinet. According to Wlaschin, he only
noticed that Brady was on top of the cabinet after being told by the inspector that Brady was
required to come down or have fall protection. Wlaschin acknowledged that he did not see any
harness or other safety device on Brady as he climbed the ladder.
Inspector Coleman testified that when he entered the room it was dark, although there
was some ambient light. However, he immediately noticed movement and saw someone
wearing a cap lamp while standing near the edge of the top of the cabinet. When Coleman
shined his flashlight toward the top of the cabinet he saw Brady standing near the pipes,
preparing to guide the cable. The top of the cabinet was flat and dry and it would have taken
Brady a few minutes to pull the cable from that position. Coleman asked Wlaschin if Brady
should be on the top of the cabinet without fall protection. Wlaschin testified that he responded
to the question and agreed that Brady should have been wearing fall protection. Coleman
remembers that Wlaschin did not agree and argued that fall protection was not necessary. Either
Wlaschin or Coleman asked Brady to come down and he complied. As Brady made his way
down, Wlaschin secured the ladder and Brady grabbed onto the cable tray above his head. Sec’y
Ex. 2. However, Brady acknowledged that the cable tray was not strong enough to use as a place
to tie off and that he saw nothing he could use as an anchor. Coleman testified that it was clear

36 FMSHRC Page 1651

to him that Wlaschin had to see Brady on the top of the cabinet and failed to take any action as
his supervisor.
Wlaschin, the supervisor, did not indicate to the inspector that he was unaware of Brady’s
position. Rather, Brady and Wlaschin told the inspector that there was no hazard and fall
protection was not necessary. Brady explained that, because he was working in the middle of the
area on top of the cabinet, and given the presence of a wall roughly 32 inches from the edge of
the cabinet, there was no risk of falling. Brady acknowledged that he had been trained in the use
of fall protection, and fall protection was available nearby for his use. Further, he testified that it
was the company policy to use fall protection and he realized he may face disciplinary action for
failing to do so.
The mandatory standard requires that any person working in an area where there is a
danger of falling must use fall protection. Brady was not wearing a safety belt and line, and was
working in a small area atop a 7 foot 7 inch tall electrical cabinet, with a concrete floor below.
Brady asserts that he was not in danger of falling due to working in the middle of the area on top
of the cabinet and the presence of a wall approximately 32 inches from the edge of the top of the
electrical box, which he could have used to catch himself had he lost his balance. I find these
arguments to be entirely without merit. The area had no handrails or other protective devices
which could have been used by Brady had he lost his balance. Further, working near the middle
of a roughly nine square foot area, some of which was taken up by the pipes which extended up
from the cabinet, still placed him perilously close to the edge of the cabinet. Furthermore, his
belief that the wall 32 inches away from the edge of the electrical box would have prevented a
fall is unreasonable. A miner should not, and must not, be expected to arrest themselves from
falling by catching themselves against a wall 32 inches away from the surface they are standing
on. Moreover, these miners were operating in an unlit room with only cap lamps and flashlights.
I credit Coleman’s testimony that pulling cable can cause a miner to lose their balance. While
Brady had not yet begun to pull the wire, he testified that he would have done so had he not been
ordered down. Pulling wire would have exposed him to the hazard to a greater degree. I find
that any misstep or loss of balance would have resulted in Brady falling over seven feet to the
concrete floor below. Clearly a danger of falling existed. Given the location of the cabinet, its
height, and that Brady was focused on removing cable, I find that there was a danger of falling,
and hence, Brady should have been wearing fall protection. Accordingly, I find that a violation
of the cited standard existed.
I also find that the violation was significant and substantial. A “significant and
substantial” violation is described in section 104(d)(1) of the Mine Act as a violation “of such
nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard.” 30 U.S.C. § 814(d)(l). A violation is properly designated
significant and substantial “if based upon the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature.” Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (Apr.
1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), the Commission explained its
interpretation of the term “significant and substantial” to be:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary

36 FMSHRC Page 1652

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.
I have already found a violation of the cited standard. Moreover, I find that a discrete
safety hazard existed; the danger of falling from a height of more than seven feet and landing on
the concrete floor below.
The difficulty with finding a violation S&S normally comes with the third element of the
Mathies formula, in which the Secretary must establish that there is a reasonable likelihood that
the hazard will result in an injury. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug.
1985). The Commission has explained that the third element of the formula “requires that the
Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in
which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984).
This evaluation is made in consideration of the length of time that the violative condition existed
prior to the citation, and the time it would have existed if normal mining operations had
continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 6
FMSHRC 1573, 1574 (July 1984). In addition, the question of whether a particular violation is
S&S is a circumstantial inquiry that must be based on the particular facts surrounding the
violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9
FMSHRC 2007 (Dec. 1987). The Commission and courts have also observed that an
experienced MSHA inspector’s opinion that a violation is significant and substantial is entitled to
substantial weight. Harland Cumberland Coal Co., 20 FMSHRC, 1275, 1278-79 (Dec. 1998);
Buck Creek Coal Inc., 52 F.3d 133, 135 (7th Cir. 1995).
I find that there was a reasonable likelihood that the hazard would have resulted in an
injury. Although Brady insists that he was only on top of the cabinet for a short time and he
might be able to catch himself on the wall 32 inches away, I agree with Coleman that it is likely
that he would fall from the top of the cabinet. In evaluating the level of exposure, I have
considered the length of time the violation existed both before and after the inspector arrived.
Brady acknowledged that he was on top of the cabinet preparing to pull wire prior to the
inspector entering the room, and attests that he would have followed through had he not been
ordered down. I find that, while the time of his exposure may have amounted to only minutes,
there was more than enough time for Brady to fall. First, the area on the top of the cabinet was
small for one person to stand on and some of that area was obstructed by the pipes which
extended upward from the center of the cabinet. Given the size of the area, the obstructions
present, and Brady’s position of working with his back to the edge of the cabinet, it is difficult to
imagine how he could safely maneuver while maintaining his balance. Second, the area was
dark. While the inspector testified that there was some ambient light present, Brady asserted that
there was none. Accordingly, if Brady’s testimony is to be taken at face value, then the only
light he had to work with was that which was provided by the cap lamp. The lack of light and

36 FMSHRC Page 1653

the inability to fully see his surroundings certainly contributes to the likelihood of a fall. Third,
Brady’s balance would have been compromised because he would have needed both hands to
pull and direct the cable that was being removed from the cabinet. I credit Coleman’s testimony
that pulling cable can cause a miner to lose his balance. Had Brady lost his balance, it is likely
he would have attempted to arrest his fall by grabbing the cable tray, which he relied upon and
grabbed to steady himself when descending the ladder. Notably, Brady conceded the cable tray
could not support his weight. Given the circumstance, I find it likely that he would have fallen
had the inspector not addressed the situation.
The normal actions of miners must be considered in determining whether a violation is
S&S. In discussing the injuries related to guarding in Thompson Bros. Coal Co., 6 FMSHRC
2094, 2097 (Sept. 1984), the Commission took into account “inadvertent stumbling or falling,
momentary inattention, or ordinary human carelessness” and explained that “in related contexts,
we have emphasized that the constructions of mandatory safety standards involving miners
behavior cannot ignore the vagaries of human conduct.” See, e.g., Great Western Electric, 5
FMSHRC 840, 842 (May 1983); Lone Star Industries, Inc., 3 FMSHRC 2526, 2531 (Nov.
1981). Here, a simple misstep, inadvertent stumble, or moment of inattention would have
resulted in Brady falling more than seven feet to the concrete floor below.
The inspector testified that he is aware of a number of falls from such heights, including a
fall in which a miner was attempting to pull cable prior to losing his balance and falling.
Coleman explained that there have been fatalities in the mining industry as a result of falls from
this height. I credit Coleman’s testimony and agree that falling from a height of more than seven
and a half feet, as measured by the inspector, would result in a serious injury. It is reasonably
likely that the miner would strike his head, break a bone, or receive other serious injuries due to
the impact on the floor. The injuries would be permanently disabling or even fatal. Consistent
with my above analysis, I find that the violation is significant and substantial.
I also find that the violation was a result of the mine operator’s high negligence. The
Secretary’s regulations explain that “high negligence” exists when “the operator knew or should
have known of the violative condition or practice, and there are no mitigating circumstances.”
30 C.F.R. § 100.3(d), Table X (defining “high negligence”). The Secretary argues that Doe Run
“should have known of the violation, and presented no mitigating factors.” Sec’y Br. 11. I
agree, and find that the operator either knew or should have known of the violation and that there
were no mitigating circumstances.
Inspector Coleman testified that, based on Wlaschin’s reaction to the inspector’s initial
identification of the hazard, it was his belief that the supervisor, Wlaschin, knew or at the very
least should have known, that Brady had climbed the ladder and was standing on top of the
cabinet without fall protection. Specifically, Coleman noted Wlaschin’s lack of surprise that
Brady did not have fall protection on, Wlaschin’s denial that fall protection was needed, and the
absence of any argument presented by Wlaschin at the time of the incident that he did not know
Brady was on top of the cabinet. While Wlaschin acknowledged that he was aware that Brady
had begun to ascend the ladder, he claims that he did not know Brady was on top of the cabinet.
Moreover, Wlaschin claims that, contrary to Coleman’s testimony, he did tell the inspector that
he did not know that Brady had climbed on top of the cabinet.

36 FMSHRC Page 1654

I credit the inspector’s testimony and find that Wlaschin had knowledge that Brady was
on top of the cabinet without fall protection. While the area was dark, it is undisputed that
Wlaschin saw Brady move the ladder into place and climb up without fall protection. I find it
curious, at best, that, immediately upon seeing Brady begin to ascend the ladder, Wlaschin
became distracted by Mills’ work and the blueprints he was holding on to.1 Moreover, I find it
unlikely that he couldn’t hear Brady moving on top of the large metal cabinet or see the light of
Brady’s cap lamp as he moved above. Tr. 62. I find that Wlaschin’s testimony amounts to
revisionist history of the events and, accordingly, credit the inspector’s testimony and find that
Wlaschin had knowledge of the violative condition. Moreover, I credit Coleman’s testimony and
agree that no mitigating circumstances existed. Accordingly, I find that Wlaschin, exhibited high
negligence.
Doe Run, in arguing that the high negligence finding is not supported, states that Brady’s
conduct “was an isolated incident involving one miner who disregarded the company’s policy,
his training, and the availability of fall protection equipment” and that his negligence cannot be
imputed to the operator. Resp. Br. 11. However, this argument, along with other arguments in
its post hearing brief, ignores my above findings regarding Wlaschin’s high negligence.
Undoubtedly, Brady acted with extreme negligence and has admitted as much. However, Brady
was a rank-and file miner, whose negligence generally cannot be imputed to the operator.
Whayne Supply Co., 19 FMSHRC 447, 451, 453 (Mar. 1997); Fort Scott Fertilizer-Cullor, Inc.,
17 FMSHRC 1112, 1116 (July 1995); Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-64
(Aug. 1982)(“SOCCO”); Reading Anthracite Co., 32 FMSHRC 399, 411 (Apr. 2010) (ALJ).
Wlaschin, on the other hand, was a supervisor, whose negligence can be imputed. See generally
Capitol Cement Corp., 21 FMSHRC 883, 894 (Aug. 1999). Wlaschin offered testimony that he
was relatively new to the mine, had far less experience than the two electricians he was
observing, and hinted that he wasn’t really a supervisor because he was learning from the
electricians and had never completed this specific task in the past. However, he was the one who
noticed that Brady was not wearing his required respirator before starting the job, and signed the
reprimand for Brady as his supervisor. Therefore, I find that Wlaschin was the supervisor in
charge of the job. This finding is further supported by Brady’s testimony that Wlaschin was his
supervisor. While Wlaschin is young and was only at the mine for about a year prior to the
incident, he is well educated and agreed that he had training on the mine’s fall protection policy.
I find that the totality of the evidence requires a finding that the violation was due to a
combination of Brady’s and Wlaschin’s high negligence, and that Wlaschin’s negligence may
properly be imputed to the operator.

1

Wlaschin testified that he “saw Brady up on a ladder. Then he went back in the cabinet
when Brady wasn’t standing there anymore.” Tr. 59. I find this testimony puzzling. If
Wlaschin saw Brady standing on the ladder, and then saw that Brady was no longer on the
ladder, and could not be seen on the ground, it stands to reason that Brady had climbed up,
gotten off of the ladder, and was on top of the cabinet. Yet somehow, if Wlaschin’s testimony is
to be believed, he failed to make this connection. At the very least, based on his own testimony,
I find that Wlaschin should have known where Brady was and, given that he knew Brady did not
have fall protection on, should have known of the violative condition.

36 FMSHRC Page 1655

I also find that the violation was a result of the operator’s unwarrantable failure to
comply with the mandatory standard. The unwarrantable failure terminology is taken from
section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator
in connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the
Commission determined that unwarrantable failure is aggravated conduct constituting more than
ordinary negligence. Id. at 2001. Unwarrantable failure is characterized by such conduct as
“reckless disregard,” “intentional misconduct,” “indifference,” or a “serious lack of reasonable
care.” Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991)
(“R&P”); see also Buck Creek Coal, Inc., 52 F.3d at 136 (approving Commission's
unwarrantable failure test). The Commission has explained that whether a citation is an
“unwarrantable failure” is a question that should be evaluated based on the facts and
circumstances in each case, and in light of each of the following factors: 1) the length of time
that the violation has existed; 2) the extent of the violative condition; 3) whether the operator has
been placed on notice that greater efforts were necessary for compliance; 4) the operator’s efforts
in abating the violative condition; 5) whether the violation was obvious or posed a high degree of
danger; and 6) the operator’s knowledge of the existence of the violation. See Consolidation
Coal Co., 22 FMSHRC 340 (Mar. 2000); IO Coal Co., 31 FMSHRC 1346 (Dec. 2009). All of
the relevant facts and circumstances of each case must be examined to determine if an actor's
conduct is aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353.
Because supervisors are held to a high standard of care, another important factor supporting an
unwarrantable failure determination is the involvement of a supervisor in the violation. REB
Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998) (Commissioner Marks, concurring in part and
dissenting in part).
The condition did not exist for an extended period of time, nor was it particularly
extensive, and the operator was prompt in abating the condition. It is undisputed that Brady was
only on top of the cabinet for a few minutes. However, while only a few minutes would have
been needed to complete the task at hand, only a moment of inattention was needed for a
misstep, or loss of balance, to result in a fall. Coleman assumed, and Brady confirmed, that
Brady would have worked without fall protection if Coleman had not entered onto the scene.
Nonetheless, when told to come down, Brady did so immediately and did not complete the job
until toggle bolts were installed so that he could safely tie off. The violative condition was
confined to a small area, on one job, and one electrician who decided he could quickly pull the
cable without having to locate and put on fall protection. While these three factors arguably
weigh in the favor of the operator, the same cannot be said for the other factors.
The condition was obvious. Coleman testified that almost immediately upon entering the
room he noticed movement on top of the cabinet. While the room was dark, Brady’s cap lamp
was plainly visible and clearly revealed his location on top of the cabinet. There is no dispute
that Brady was not wearing fall protection and that he was working at a height of over seven feet
above the concrete floor. Given my above findings regarding Wlaschin’s knowledge of Brady’s
location and lack of fall protection, and his proximity to violative condition, I find that the
condition was obvious and easily seen by Wlaschin despite his testimony to the contrary.
The degree of danger and level of exposure presented by the condition are discussed in
detail above in the context of my S&S analysis. Similarly, the operator’s knowledge of existence

36 FMSHRC Page 1656

of the violation is discussed in detail above in my negligence analysis. Nevertheless, it is worth
reiterating that, given the surrounding circumstances, Brady’s blatant disregard of law and
Wlaschin’s failure to uphold the “high standard of care” required of mine operators made it
reasonably likely that Brady would fall and suffer a serious injury. See 30 C.F.R. § 100.3(d).
The Commission has long held that the negligence of a “rank-and-file” miner cannot be imputed
to the operator for civil penalty purposes. Fort Scott, 17 FMSHRC at 1116; Western Fuels-Utah,
Inc., 10 FMSHRC 256, 260-61 (Mar. 1988); SOCCO, 4 FMSHRC at 1464. The Commission
has further determined that “where a rank-and-file employee has violated the Act, the operator’s
supervision, training and disciplining of its employees must be examined to determine if the
operator has taken reasonable steps necessary to prevent the rank-and-file miner’s violative
conduct.” SOCCO at 1464 (emphasis in original). Finally, while this standard is normally
applied in determining the operator’s negligence for penalty purposes, the Commission has
confirmed that it also applies in determining whether an operator can be held responsible for a
miner’s aggravated conduct and, thus, be found to have unwarrantably failed to comply with a
regulation. Whayne Supply Co., 19 FMSHRC 447, 452-53 (Mar. 1997). In this case, I am
particularly concerned that Brady, who agreed he had been trained, blatantly ignored the
requirement to tie off. Brady is not a supervisor, but his training and any discipline at the mine
obviously were not sufficient to cause him to follow the rules.
The mine had been placed on notice that greater efforts were necessary for compliance.
The inspector testified that he addressed the issue twice with the operator during inspections over
the previous two years. In one instance, Coleman issued a citation where a miner was not tied
off correctly while working at height. During a second inspection he had a conversation with the
operator regarding its failure to have tie off points in an elevated area that was accessed by
miners. In the course of those conversations he discussed with the mine the need to “improve
[tie off] . . . points and focus on fall protection better.” Tr. 32. While I agree with the operator
that, on its face, the limited history of violations does not provide an especially strong case that
notice was provided, I credit Coleman’s testimony that he did have conversations with the mine
regarding the need to focus on fall protection after he identified a place in the mine where miners
worked in an elevated area without tie off points. Similarly, here, tie off points were also not
available in the area where a miner was working. While Doe Run argues that these two events
were not part of Coleman’s calculus of the unwarrantable failure designation, I find that the facts
bear out that the mine was on notice. Accordingly, I find that Coleman did place the mine on
notice that greater efforts were necessary for compliance.
I have already found that both Brady and Wlaschin exhibited high negligence. They both
knew that Brady should not be working at a height of over seven feet without fall protection, yet,
Brady chose to do so and Wlaschin chose to keep his attention elsewhere. In doing so, Brady
engaged in intentional misconduct and his supervisor exhibited a serious lack of reasonable care,
both of which are indicative of “more than ordinary negligence.” Wlaschin’s conduct cannot be
excused because he is relatively new or has less experience than the electricians he worked with
at the time of the violation. He is well-educated and as a supervisor should know the rules about
working safely. While the condition may have been short-lived, it was a serious hazard that was
ignored, and could have quickly led to a fall, which would have resulted in a serious and
potentially fatal injury. Therefore, I agree that the violation was an unwarrantable failure.

36 FMSHRC Page 1657

II. PENALTY
The principles governing the authority of Commission administrative law judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i)
of the Mine act delegates to the Commission and its judges “authority to assess all civil penalties
provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to
the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus when an operator notifies the Secretary that it
intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29
C.F.R. § 2700.28. The Act requires, that “in assessing civil monetary penalties, the Commission
[ALJ] shall consider” six statutory penalty criteria which include the history of violations, the
size of the operator, the negligence, gravity, the ability to continue in business and good faith
abatement. 30 U.S.C. § 820(i). In keeping with this statutory requirement, the Commission has
held that “findings of fact on the statutory penalty criteria must be made” by its judges.
Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984).
Once findings on the statutory criteria have been made, a judge's penalty assessment for a
particular violation is an exercise of discretion, which is “bounded by proper consideration of the
statutory criteria and the deterrent purpose[s] . . . [of] the Act. Id. at 294; Cantera Green, 22
FMSHRC 616, 620 (May 2000).
In the instant case, the operator is large, has no unusual history of these types of
violations, and abated the condition in good faith. The inspector indicated that the negligence
was high and, given the facts as discussed above, I agree. I have discussed the gravity and S&S
nature above and find that a penalty of $2,106.00 as proposed by the Secretary is appropriate.
III. ORDER
The citation is affirmed as issued and Doe Run is hereby ORDERED to pay the
Secretary of Labor the sum of $2,106.00 within 30 days of the date of this decision.

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

Distribution:
Carol Liang, U.S. Department of Labor, Office of the Solicitor, MSHA Backlog Project, 1999
Broadway, Suite 800, Denver, CO 80202-5708
R. Henry Moore, Jackson Kelly, PLLC, Three Gateway Center, Suite 1500, 401 Liberty Avenue,
Pittsburgh, PA 15222

36 FMSHRC Page 1658

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

June 18, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of KEITH OVERFIELD,
Complainant
v.
HIGHLAND MINING COMPANY, LLC
Respondent

:
:
:
:
:
:
:
:
:
:

DISCRIMINATION PROCEEDING
Docket No. KENT 2014-483-D
MSHA Case No.: MADI-CD-2014-13

Mine: Highland #9
Mine ID: 15-02709

DECISION AND ORDER
REINSTATING KEITH OVERFIELD
Appearances:

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, TN, Representing the Secretary of Labor
Jeffrey K. Phillips, Esq., Steptoe & Johnson, PLLC, Lexington, KY
Representing Respondent

Before:

Judge Lewis

On May 13, 2014, pursuant to section 105(c)(2) of the Federal Mine Safety and Health
Act of 1977 (AAct@), 30 U.S.C. '801, et. seq., and 29 C.F.R. '2700.45, the Secretary of Labor
(ASecretary@) filed an Application for Temporary Reinstatement of miner Keith Overfield
(“Overfield” or “Complainant”) to his former position with Highland Mining Company, LLC,
(AHighland@ or ARespondent@) at the Highland #9 Mine pending final hearing and disposition of
the case.
That application followed a Discrimination Complaint filed by Overfield on April 3,
2014, that alleged, in effect, that his termination was motivated by his protected activity. The
Secretary represents that this Complaint was not frivolously brought and requests an Order
directing Respondent to reinstate Overfield to his former position and rate of pay.
On May 21, 2014 Respondent requested a hearing regarding this application via certified
letter. A hearing was held in Evansville, Indiana on June 10, 2014. The Secretary presented the
testimony of the complainant. Respondent had the opportunity to cross-examine the Secretary=s
witnesses and present testimony and documentary evidence in support of its position. 29 C.F.R.
'2700.45(d).

36 FMSHRC Page 1659

At the close of the hearing Respondent conceded that the miner’s complaint had not been
frivolously brought. However, Respondent maintained that the miners’ discrimination claim
should be barred because of untimely filing. In the alternative, Respondent further argued that
any reinstatement order should be modified based upon the mine’s shut down, tolling
Respondent’s Reinstatement obligation.
For the reasons set forth below, I grant the Secretary’s application for temporary
reinstatement of Overfield, find that Overfield’s discrimination claim is not barred upon late
filing, and find that there should be no tolling of Respondent’s reinstatement obligation pending
full hearing.
Discussion of Relevant Law
Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any
protected right under the Mine Act. The purpose of the protection is to encourage miners Ato
play an active part in the enforcement of the [Mine Act]@ recognizing that, Aif 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.
181, 95th Cong., 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 623 (1978).
Congress created the temporary reinstatement as “an essential protection for complaining
miners who may not be in the financial position to suffer even a short period of unemployment
or reduced income pending the resolution of the discrimination complaint.” S. Rep. No. 181,
95th Cong., 1st Sess. 36-37 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong. 2nd Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 624-25 (1978).
Temporary Reinstatement is a preliminary proceeding, and narrow in scope. As such,
neither the judge nor the Commission is to resolve conflicts in testimony at this stage of the case.
Sec=y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999). The
substantial evidence standard applies.1 Sec=y of Labor on behalf of Peters v. Thunder Basin Coal
Co., 15 FMSHRC 2425, 2426 (Dec. 1993). A temporary reinstatement hearing is held for the
purpose of determining Awhether the evidence mustered by the miners to date established that
their complaints are non-frivolous, not whether there is sufficient evidence of discrimination to
justify permanent reinstatement.@ Jim Walter Resources, 920 F.2d 738, 744 (11th Cir. 1990).

1

ASubstantial evidence@ means Asuch relevant evidence as a reliable mind might accept
as adequate to support [the judge=s] conclusion.@ Rochester & Pittsburgh Coal Co., 11
FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. V. NLRB, 305 U.S. 197,
229 (1938)).

36 FMSHRC Page 1660

In adopting section 105(c), Congress indicated that a complaint is not frivolously brought
if it Aappears to have merit.@ S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In
addition to Congress= Aappears to have merit@ standard, the Commission and the courts have also
equated Anot frivolously brought” to Areasonable cause to believe” and Anot insubstantial.” Sec'y
of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd,
920 F.2d 738, 747 & n.9 (11th Cir. 1990). “Courts have recognized that establishing ‘reasonable
cause to believe’ that a violation of the statute has occurred is a ‘relatively insubstantial’
burden.” Sec’y of Labor on behalf of Ward v. Argus Energy WV, LLC, 2012 WL 4026641, *3
(Aug. 2012) citing Schaub v. West Michigan Plumbing & Heating, Inc., 250 F.3d 962, 969 (6th
Cir. 2001).
In order to establish a prima facie case of discrimination under section 105(c) of the Act,
a complaining miner must establish (1) that he engaged in protected activity and (2) that the
adverse action complained of was motivated in any part by that activity. Sec=y of Labor on behalf
of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev=d on other grounds sub
nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec=y of Labor on
behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981).
However, in the instant matter, the Secretary and Overfield need not prove a prima facie
case of discrimination with all of the elements required at the higher evidentiary standard needed
for a decision on the merits. Rather, the same analytical framework is followed within the
“reasonable cause to believe” standard. Thus, there must be “substantial evidence” of both the
applicant=s protected activity and a nexus between the protected activity and the alleged
discrimination. To establish the nexus, the Commission has identified these indications of
discriminatory intent: (1) hostility or animus toward the protected activity; (2) knowledge of the
protected activity; and (3) coincidence in time between the protected activity and the adverse
action. Sec=y of Labor on behalf of Lige Williamson v. CAM Mining, LLC, 31 FMSHRC 1085,
1089 (Oct. 2009). The Commission has acknowledged that it is often difficult to establish a
Amotivational nexus between protected activity and the adverse action that is the subject of the
complaint.@ Sec=y of Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957
(Sept.1999). The Commission has further considered the disparate treatment of the miner in
analyzing the nexus requirement. Secretary of Labor on behalf of Chacon v. Phelps Dodge
Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev=d on other grounds, 709 F.2d 86 (D.C. Cir.
1983).
Stipulations
The parties stipulated to the following legal and factual propositions:
1.

At all times relevant to this action, Highland Mining, LLC has extracted and
produced coal in interstate commerce

36 FMSHRC Page 1661

2.

Highland Mining, LLC owns and operates the No. 9 mine located in Union
County, Kentucky

3.

Highland Mining, LLC is an operator subject to the jurisdiction of the Federal
Mine Safety and Health Administration and its Administrative Law Judges.2

4.

Keith Raymond Overfield was employed by Highland Mining, LLC as a mine
examiner at Highland No. 9 mine during the period from 12/5/2012 through
September 30, 2013. He began at Highland on September 20, 2010.

5.

Keith Raymond Overfield left employment at the Highland Mining, LLC No. 9
mine on September 30, 2013.

6.

Keith Raymond Overfield filed a complaint with the Federal Mine Safety and
Health Administration on April 3, 2014 alleging that he was wrongfully
terminated from his employment at Highland Mining, LLC No. 9 Mine.

(Joint Exhibit 1).3
Contentions of the Parties
On April 3, 2014, McKinsey executed a Summary of Discriminatory Action. It was filed
with his Discrimination Complaint on the same date. In this statement he alleged the following4:
I feel I was discharged because I am a mine examiner and was finding numerous
violations that I wrote in the exam book. They didn’t want me to put all of them
in the box but allow them to just take care of them. I couldn’t do that so when I
had to take leave for a medical condition, they used that to discharge me. I am
asking for my job back with all back pay and benefits restored.
GX-1: Application for Temporary Reinstatement at Exhibit B, p. 2.
The Secretary also submitted the May 12, 2014 Declaration of Curtis Hardison, a Special
Investigator employed by the Mine Safety and Health Administration, with the Application.
Inspector Hardison wrote that he investigated Overfield’s discrimination claim against
2

Clearly the parties intended to refer to the Federal Mine Safety and Health Review
Commission’s Administrative Law Judges. The undersigned takes no offense.
3

Hereinafter Joint exhibits will be referred to as “JX” followed by the number.
Government exhibits will be referred to as “GX” and Respondent’s exhibits as “RX.”
4

The left-hand margin of the photocopied Discrimination Report filed by the Secretary
was cut off. As a result, several words are either missing in whole or in part. These words have
been recreated to the extent possible. Words and letters that are based on attempts to complete
the document are included in brackets.

36 FMSHRC Page 1662

Respondent. Based on his investigation, Hardison concluded the following relevant facts were
true:
4.

Based on the foregoing facts and other facts gathered during my investigation, I
have concluded that Keith Overfield was terminated on September 28, 2013 by
Highland because he made safety complaints and engaged in protected activity
during the summer of 2013. Highland also engaged in activity that interfered with
the miners’ rights of examiners at the No. 9 mine, including Keith Overfield. This
constructive discharge violated Section 105(c) of the Mine Act. Accordingly, the
complaint filed by Mr. Overfield was not frivolous.

Id. at Exhibit A, p. 3. The Secretary cited this declaration as a basis for the formal request for
temporary reinstatement. (GX-1). In addition, both Hardison and Secretary’s counsel at hearing
asserted that Overfield’s late filing in this matter was excusable as arising from justifiable
ignorance, mistake, inadvertence, or excusable neglect. (Transcript at 111-112)(GX-1:
Application for Temporary Reinstatement at Exhibit A, p. 2).5 Further the Secretary asserts that
there is a non-frivolous issue as to whether a subsequent layoff properly included Overfield. (Tr.
118-120).
Respondent disputes the Secretary’s claim that Overfield was terminated for making
safety complaints, but concedes that the discrimination was not frivolously brought. (Tr. 110).
However, Respondent argues that the discrimination complaint should not be considered because
Overfield was impermissibly late in filing. (Tr. 111-116). Further, Respondent argues that even
if reinstatement were appropriate, that Overfield would currently be laid off as a result of an
unrelated accident that occurred at Respondent’s Prep Plant. (Tr. 118-120).
Summary of Testimony
At the time of the hearing, Keith Overfield had last worked September 17, 2013 at the
Highland #9 Mine as a certified mine examiner.6 (Tr. 16). Overfield had started at the mine
around September 20, 2010 as a roof bolter. (Tr. 16).
In November 2011, while a roof bolter, Overfield filled in for Respondent’s mine
examiner, Mark Burns. (Tr. 17). He did so because Burns was sick and, according to
management, would not return to work. (Tr. 17). In that capacity Overfield examined the air
courses and pre-shifted outby areas. (Tr. 17-18). To examine an air course, Overfield would

5

Hereinafter references to the transcript will be cited “Tr.” with the page number.

6

Overfield was present at the hearing and testified. (Tr. 15). Overfield had ten years of
experience in underground mining and had held a Kentucky mine foreman certification since
2006. (Tr. 16-17, 60). At the time of the hearing Overfield was unemployed. (Tr. 15-16).

36 FMSHRC Page 1663

travel an intake or return in its entirety and mark down any hazards or violations. 7 (Tr. 18).
During examinations, Overfield would take air readings to ensure the air was flowing with the
necessary amount pressure and in the proper direction. (Tr. 18). Hazards, violations, and the
course traveled were marked in a book at the surface, as was required by state and federal law.
(Tr. 18-19). Most of the violations he found were pins (or roof bolts) out, pins sucking above the
plates, or pins spread. (Tr. 20). Sometimes he found a substantial amount of these conditions.
(Tr. 20). In a separate book, he would note the air readings. (Tr. 18-19).
Overfield examined about two miles a day in the air courses. (Tr. 21). In the returns,
Overfield would use a permissible ride and in the intakes he would use a golf cart. (Tr. 21).
Sometimes he was unable to get a ride because another miner, Darrell Bradshaw, would cut off
the locks and take it. (Tr. 21, 65). These late starts would greatly affect his ability to conduct
examinations. (Tr. 22). As a result, he would have to rush to complete the examinations in time
and would not have the opportunity to do them properly. (Tr. 22). He rushed because this
examination had to be completed before 12:00 a.m. Tuesday each week, or a violation would be
issued. (Tr. 22-23). Overfield reported Bradshaw’s thefts to “everybody” in management
including the mine manager, the assistant mine manager, the safety department, the mine
foreman. (Tr. 21-23). He even called the assistant mine foreman because he was stressed out
trying to complete his job without the necessary tools. (Tr. 23). Overfield filed a harassment
charge against Bradshaw. (Tr. 65). Both Overfield and Bradshaw were union employees, not
management. (Tr. 66). Overfield was aware that he had the right go to the union representative
and spoke to another miner, Larry Baker, about the situation. (Tr. 66).
In May 2012, Overfield went to the No. 2 unit’s intake air course and found that his golf
cart was missing again. (Tr. 24). Overfield attempted to reach the mine foreman, but he
believed the foreman knew the reason for his called and chose to ignore it. (Tr. 24). The ride
was eventually returned at 10:30, but the battery needed to be charged. (Tr. 24). Overfield then
went to the foreman, Sleigh Kuykendall, and told him that the golf cart was dead and that he
would not be able to complete the examination by midnight. (Tr. 24-25). Kuykendall said that
he was tired of Overfield acting like he was a boss and that when Overfield returned to the pin
crew he would show him who was boss. (Tr. 25). Overfield believed his job was permanent.
(Tr. 25). He told Kuykendall that it was against the law to allow the air course to remain
unexamined past 12:00 a.m. and that he was out of line. (Tr. 25).
The next day the Overfield’s supervisor, assistant mine manager Aaron Farmer, told him
that he would return to his duties as a roof bolter. (Tr. 20, 25-26). George Tudor was present as
Overfield’s union assistance. (Tr. 25). Farmer said he was not happy that Overfield had
approached Kuykendall but Overfield believed he was just abiding by the law. (Tr. 26).
In November, Farmer told Overfield that examiners could not or would not finish the air
course examination in seven days and Respondent was receiving citations for inadequate
7

Until the new law was passed in 2012, Overfield did not use the term “violation” to
refer to conditions found in the mine. (Tr. 19). However, the way he conducted the examination
did not change with the new law, he just changed the way he referred to conditions in the book.
(Tr. 19).

36 FMSHRC Page 1664

examination. (Tr. 26-27, 74-75). Farmer asked Overfield to apply for a soon-to-be posted
examiner job.8 (Tr. 26-27). Respondent wanted him to fix the problem by actually marking
conditions in the book. (Tr. 75). Overfield bid for the permanent examiner job and was certified
in December 2012, though he already had the proper paperwork before that point. (Tr. 27, 65).
When Overfield returned to the examiner position, he was still working on air courses but
two months later switched to the rotating crew examining belts.9 (Tr. 27-28). This was the
position he held until he left Highland. (Tr. 28). In that position he rotated between the day and
second shift conducting the on-shift examination. (Tr. 28-29). When on day shift he examined
the main north, main east, to No. 2 and 4 unit outby area of the mine for conditions in the belt
entry. (Tr. 28, 30). He would cover around six miles in a day examining three main belts and
two unit belts. (Tr. 29). He would check the belts and rollers, but also loose ribs, loose top, and
pins out. (Tr. 29). He traveled mostly along the belt in a golf cart. (Tr. 29). During his preshift, Overfield would examine the outby travel supply roads. (Tr. 30). As a result, his name
would be in both the pre-shift and on-shift book. (Tr. 30-31). Any condition he found were
recorded and signed in on-shift book at the surface. (Tr. 29-30). If a condition required attention
because it posed an immediate hazard or could not be corrected, Overfield would call out for
repairs. (Tr. 30).
In December 2012, Overfield, along with three other examiners and some salaried
personnel, received written reprimands for failure to complete his examination books properly.
(Tr. 71-72, 74). Farmer informed him that he had failed to follow MSHA regulation and
Respondent’s policy because the examiners had failed to take air readings while moving a power
de-energized power unit. (Tr. 71-72). MSHA Inspector Felix issued an Order for failure to
include an air reading on three straight shifts on which the foreman signed off. (Tr. 72-73).
Overfield did not believe that there was a hazard. (Tr. 72-73). He did not fail to include
information; he misunderstood what was required under the law. (Tr. 72-73, 78). Overfield
conceded that he should have known better but he also asserted that he followed the example of
more senior examiners who had moved in this manner for as long as they could recall. (Tr. 7274). Respondent had known about this practice long before the reprimand and had only
disciplined the examiners after the violation was issued. (Tr. 77). Because of this, Farmer stated
he did not want to discipline the examiners but that he was under pressure from MSHA to
discipline them and the salaried personnel. (Tr. 74). Overfield believed Respondent should have
corrected the problem rather than blaming the examiners. (Tr. 73).
Sometime after Overfield returned to examination, Farmer quit and was replaced by Les
Hawkins. (Tr. 31). Hawkins and Overfield had numerous discussions regarding information
recorded in the books. (Tr. 31, 34). Hawkins would ask Overfield to quit writing down pin
violations and to write fewer conditions and then correct them the next day. (Tr. 31). Overfield
believed that if something was recorded and it was not corrected or worked on within a certain
number of shifts, MSHA would issue an order. (Tr. 33). Management said that in recording
numerous pins in the supply and belt roads, that Overfield was doing MSHA’s job for them. (Tr.
8

As this was a union mine, were required to be posted for bidding. (Tr. 27).

9

The problem with the locks continued. (Tr. 65).

36 FMSHRC Page 1665

34). MSHA would see the recorded conditions, go to the recorded location, and then cite
Respondent if the condition was not fixed. (Tr. 34-35). Overfield tried to comply with
Hawkin’s request, but it did not work out. (Tr. 31-32). A few times he did not record
conditions, but later he or the foreman would write it up or tell another examiner about it. (Tr.
32). Most of the condition he did not record were damaged or spread pins. (Tr. 32). He would
not report conditions if he felt he was already overwhelming management with what he had
found. (Tr. 32). For example, if he saw four conditions he might only record three. (Tr. 32-33).
In August 2013 Hawkins spoke with Overfield about 25 missing bolts that Overfield had
recorded in the book following an examination. (Tr. 35). Hawkins asked Overfield “what the
deal was” with writing down 25 pins. (Tr. 35). Overfield told him that he was doing his job.
(Tr. 35). Hawkins said he was ruffling feathers, that he and Mike Jones, the overseer of mines,
were unhappy about it, and that he should “watch it.” (Tr. 35-36, 43). Overfield believed that
MSHA wrote citations for this condition. (Tr. 35).
In addition to Hawkins, assistant mine foreman Randy Lehman, Luke Hunley, and
Rodney Sims would heckle Overfield about writing up conditions. (Tr. 69-70). They would ask
each day how many pins he wrote up. (Tr. 69-70). Terry Johnson would ask him “how much
dumb shit did you write up today.” (Tr. 70). That was all they said. (Tr. 70). Overfield felt that
Johnson was joking and did not feel pressured as a result. (Tr. 70-71). No one else in
management complained about what Overfield wrote or did not write in the books. (Tr. 71).
Overfield spoke with the union regarding management. (Tr. 66). In particular, he spoke
with Baker (and perhaps others) in June 2013 about the fact that management “stayed on his
butt” for writing up pins. (Tr. 67). However, Overfield did not file a grievance because he was
still noting hazards he saw and he or someone else was correcting them. (Tr. 68). Baker told him
to continue to write things up. (Tr. 68). Overfield was not aware of Baker speaking to anyone in
management about the situation and did not ask him to. (Tr. 68). Nothing changed after he
spoke with Baker, Hawkins continued to talk him about the conditions he noted. (Tr. 68-69).
Overfield felt pressure from management. (Tr. 36). He had been receiving treatment
from neurologist Michael Mayron for depression and attention deficit disorder since 2008
(before working for Respondent). (Tr. 37, 58). Respondent was probably not aware that he was
seeing Dr. Mayron, but they were aware of his condition. (Tr. 37). Overfield had separate
conversations with Hawkins, Farmer, and Ezra French regarding his depression. (Tr. 38).
Usually, he would discuss the condition when he was doing better. (Tr. 38). He was pretty sure
that they knew he was on medication. (Tr. 38).
On September 17 Overfield returned from work and saw that his house had been robbed
for the fourth time since June. (Tr. 36). He had filed two previous police reports but to no avail.
(Tr. 36-37). When he saw his home he suffered a nervous breakdown. (Tr. 37). He then
purchased a crossbow (because all of his guns were stolen), parked his car in the woods, and sat
in the dark with the lights out for four days hoping to learn who had broken into his house. (Tr.
38). While there, Overfield was scheduled to work but did not attend. (Tr. 38-39). Instead, he
called each day and left messages stating he was unable to go to work. (Tr. 39-40). He believed
he could use his sick days and that he was not violating the attendance policy. (Tr. 40, 75). One

36 FMSHRC Page 1666

day he told the mine foreman, Mickey Morris, that he would not be able to go to work and that
he needed psychiatric help. (Tr. 39). He recognized that he was having a breakdown and that he
was not fit to work. (Tr. 39-40, 76). Eventually, he called Dr. Mayron to set up an appointment
on the 25th, which was the earliest available date. (Tr. 40-41). He tried to call his family doctor
but the doctor was out of town. (Tr. 40).
On Monday, Hawkins left a voicemail with Overfield asking him to do an air course
examination. (Tr. 41). Overfield called back and said he had had a breakdown, that he had an
appointment with a doctor the next day, and that he could not come in. (Tr. 41). Hawkins asked
him to come in and said they would work something out. (Tr. 41). Overfield did not believe he
had any business being there, but Hawkins knew Overfield would do anything if the mine was in
trouble. (Tr. 41). As a result, Overfield went to the mine around 2:30 to talk to Hawkins. (Tr.
41-42). He did not clock in or wear the mining clothes he stored at the mine. (Tr. 42).
At the meeting Overfield informed Hawkins that he had a doctor’s appointment the next
day and did not believe he needed to be present, but that he would do an examination if
necessary.10 (Tr. 42-43). Hawkins told him to wait and then brought in Mike Jones and Tanya
McCullough.11 (Tr. 43, 100). When he arrived, Overfield did not anticipate that he would have
a meeting with HR and management. (Tr. 44). The situation made Overfield’s mental condition
worse. (Tr. 44). Mike Jones asked Overfield what happened and Overfield said that he had had
a nervous breakdown and was going to see a doctor. (Tr. 44). Mike Jones told him that he was
going to be suspended with intent to discharge because he was absent for five days without a
doctor’s excuse and then gave him documents to that effect. (Tr. 44-45). Overfield asked for
FMLA time and it was denied. (Tr. 44). When he said he had a doctor’s appointment the next
day, Jones said to bring a doctor’s note in and they would see what they could do. (Tr. 46).
On the 25th, Overfield saw Dr. Mayron. (Tr. 46). He did not feel ready to go back to
work and Dr. Mayron excused him from the 17th through the 26th. (Tr. 46, 76). The excuse
verified that he was not able to work and he brought the note to HR. (Tr. 46-47). He did not
know of any policy against a backdated doctor’s excuses. (Tr. 75). Overfield felt on the 26th that
he could return to work. (Tr. 77). He then called the mine and was told by McCullough that he
was still suspended with intent to discharge. (Tr. 47).
On September 29, 2013 Overfield attended a meeting with Respondent. (Tr. 47-48). He
first met with union officials, including Steve Jones, the District 12 Union Representative; Terry
Miller, the Local 1793 President; George Tudor, the Local Union Treasurer; and Baker, Local
10

While at the mine, Overfield checked the air course books to see if he was actually
needed and saw that the area Hawkins had told him he would be examining already been
checked. (Tr. 44-45). While he was there, no one talked about the examination. (Tr. 45).
11

Tanya McCullough appeared at hearing and testified for Respondent. (Tr. 81). At the
time of the hearing and in September 2013, McCullough was the manager of human resources
for Respondent. (Tr. 81). In that capacity she was responsible for contract administration,
attendance control, employee discipline, hiring benefits, and other duties. (Tr. 81).

36 FMSHRC Page 1667

Union Secretary and safety committee member. (Tr. 47-48). He then met with Mike Jones,
Hawkins, and another human resources official (not McCullough). (Tr. 49, 100). At the
meeting, they told Overfield that he was fired. (Tr. 49). The union did not say anything on his
behalf but they told him to plead for his job or a last chance agreement.12 (Tr. 49). The request
was denied by Mike Jones and Hawkins. (Tr. 49). However, after speaking with the union,
Respondent allowed Overfield to resign instead of being fired. (Tr. 51). Human resources
drafted the resignation letter, Overfield signed and dated it on September 30, 2013, and it was
witnessed by Steve Jones. (GX-2, Tr. 50-51). Overfield did not feel like he had any options
because if he signed he got unemployment and a positive recommendation, but if he did not sign
he would be terminated and his unemployment would be denied. (Tr. 51-52).
When Overfield signed the resignation letter, he believed he had been discriminated
against and went to a lawyer about the issue. (Tr. 61-63). He contacted his attorney, Gary
Gibbs, seeking legal advice but Gibbs did not represent miners in discrimination and wrongful
termination proceedings. (Tr. 52-53). Gibbs referred Overfield to Amy Zachary but he was
never able to meet with her. (Tr. 53, 62). She cancelled their first meeting at the end of October
and later informed him that she no longer worked discrimination cases. (Tr. 53). He then spoke
with attorneys in Evansville in December or January but they required a $2,500.00 retainer so he
did not hire them. (Tr. 62-63). He considered other attorneys in Louisville. (Tr. 63). None of
the attorneys Overfield spoke to suggested that he contact MSHA. (Tr. 55). Overfield did not
approach MSHA because he did not know that he could. (Tr. 53, 55). In April, Overfield heard
about a case involving David Woods and decided to call MSHA. (Tr. 53-54, 56). It was
probably only one day between hearing about Woods’ case and the filing of Overfield’s
complaint. (Tr. 56).
After his resignation, Overfield filed for unemployment benefits in Kentucky. (Tr. 63).
Under the reason for the application he stated he was forced to resign because of a mental health
crisis. (Tr. 63-64). He did not tell the unemployment office that he was discriminated against
because he did not think it was relevant and because the mental health reason was on the one
given by Respondent. (Tr. 64). Further, the form was very basic. (Tr. 64-65).
Overfield conceded that he attended annual refresher training in March. (Tr. 54). This
occurred twice a year. (Tr. 54, 61, 105). During those trainings workers were instructed about
miners’ rights. (Tr. 54, 61, 105). Overfield testified that he did not recall learning about his
right to go to MSHA with a discrimination complaint. (Tr. 54, 61). Randy Glen Duncan
testified that the right to go to MSHA with a discrimination complaint was included in
Respondent’s miners’ rights training. 13 (Tr. 106). However, Duncan was not sure if he had
spoken with Overfield about miners’ rights or even if Overfield was present for the training. (Tr.
107). He never told Overfield personally that if he was discriminated against, he should contact
MSHA; that was the instructors’ job. (Tr. 107). Duncan could not say how much time was
12

According to Overfield, a last chance agreement is a six month to one year period
where a miner keeps his job but can be terminated for any run-ins with management. (Tr. 49).
13

Randy Duncan appeared at hearing and testified for Respondent. (Tr. 103). At all
relevant times he was safety manager with Patriot Coal, at Highland 9 mine. (Tr. 103-104).

36 FMSHRC Page 1668

devoted to miners’ rights in the training, but he knew it was usually covered before lunch as part
of the safety meeting. (Tr. 108). In addition to the training, Duncan testified that MSHA
regularly handed out miners’ rights information and that the information, along with a phone
number, was posted on a board at the mine. (Tr. 105-106). The discrimination protections
were well known throughout the mining industry. (Tr. 106).
Back at the mine, on May 6 between 11:00 and 12:00, one of the floors of the Camp 9
prep plant collapsed. (Tr. 104). The Camp 9 prep plant is where the coal mined at Highland #9
is sent from underground to be cleaned and shipped to the terminal. (Tr. 104). The plant was
idled from after MSHA inspector Coburn issued a (j) order (RX-F). (Tr. 104-105). With the
prep plant down, coal production was impossible. (Tr. 83-84). Respondent continued to mine
coal until May 9 and then, on the 10th the mine idled. (Tr. 84-85, 105). By May 12, no one was
working. (Tr. 84).
On May 9, mine management personnel met with Steve Jones, the UMWA International
District Representative, and Steve Earle, the International District Vice President and discuss
how to get the employees through the layoff during the idle period. (Tr. 82-84, 100). (RX-A).
(Tr. 82-83). Respondent and the UMWA made an agreement that they would retain the most
senior employees in their respective job title during the period (RX-A). (Tr. 84, 86).
Respondent determined the number of employees it still needed in each job title and then kept
the most senior employees in each classification. (Tr. 84). Those employees would continue to
work while the rest were idled. (Tr. 84). The job classification was the one that existed at the
time of the layoff but the seniority calculation was from the time of hiring, not the time that the
miner received that job classification. (Tr. 85-86). As operations ramped back up and more
employees were needed, the same seniority rules would be used for call-back priority. (Tr. 85).
Seniority and job classification would be the only issues considered during recall. (Tr. 85). At
the time of this meeting, McCullough was aware that Overfield had filed the complaint, having
learned of it in April. (Tr. 100). However, she asserted that the outstanding case with Overfield
was not considered in making the agreement. (Tr. 100).
On May 12, Respondent had a meeting at Henderson Community college with the union
and all of the employees. (Tr. 85, 105). Respondent explained that everyone would be off of
work and then how everyone would be brought back. (Tr. 105).
According to McCullough, if Overfield still worked for Respondent, he would still be
laid off. (Tr. 92-93). McCullough reviewed a list of workers classified as mine examiners and
their seniority date. (Tr. 87). Even though Overfield was not employed in May 2014, he was
included in the list at the No. 16 spot.14 (Tr. 87-88). Because he was a mine examiner when he
resigned, that was his classification used for determining the recall. (Tr. 87). The seniority
ranking was placed automatically onto personnel information sheets based on information in the
14

Tavon Polk and Overfield were both hired on the same day, September 20, 2010 (RXC). (Tr. 86). As a result, a drawing was conducted to see who had the higher seniority. (Tr. 86).
Polk drew the No.1 spot and Overfield the No. 2 spot for callback. (Tr. 86-87).

36 FMSHRC Page 1669

human resources data bank (RX-D).15 (Tr. 88-90). At the time of the hearing, the ten most
senior examiners had returned to work while the remaining examiners had not. (RX-E, Tr. 9091). At No. 16 in seniority, five more examiners would be reinstated before Overfield. (Tr. 9192). For example, Carl Rich was hired on December 16, 2009, before Overfield. (Tr. 90). Rich
was ranked No. 13 on the seniority list of examiners and would be entitled to reinstatement
before Overfield. (Tr. 90).
The personnel information used to determine seniority did not include previous job titles.
(Tr. 96-97). One miner, David Reynolds, only became a belt examiner on September 25, 2013,
around the same time Overfield left. (Tr. 97). However, McCullough could not say if Reynolds
would not have been classified as a belt examiner if Overfield had not left, because Respondent
added 60 new jobs between September 18 and 25 during a change in schedule. (Tr. 97-98).
McCullough could not say which examiner was replacing Overfield, because of the change in
staffing at Respondent’s mine, however someone was replacing him. (Tr. 98-99). It is possible
that someone would not be on the list if Overfield had not been laid off. (Tr. 99).
McCullough was familiar with the 2013 Coal Wage Agreement between Respondent and
the UMWA and was aware that it was binding. (Tr. 93). The contract section regarding
reduction and realignment allows senior miners to move into another job. (Tr. 93-94). However,
McCullough believed that this was not a reduction because it was temporary. (Tr. 94). She
believed the agreement with the UMWA ensured they followed the contract. (Tr. 100). No units
were shut down due to economic reasons. (Tr. 94). Respondent simply had to idle the mine
based upon the prep plant. (Tr. 94). If they had taken gone through a reduction, the 390
employees would have lost their jobs and health insurance in May and been forced to use the
recall process to bid back into jobs when the mine started back up. (Tr. 94-95). Respondent and
the UMWA were attempting to retain job titles and allow for extended benefits to minimize
adverse effects. (Tr. 94-95).
McCullough also reviewed a list of roof bolters arranged by seniority date (GX-3). (Tr.
95-96). The list was highlighted for those roof bolters who had returned to work, including one
with a seniority date of February 7, 2011). (Tr. 96). However, McCullough did not believe that
this meant Overfield would be senior to the last recalled roof bolter because the agreement
regarding recall superseded the contract. (Tr. 96). Under the terms of that agreement, it was not
permissible for Overfield to return to another position, even if he was qualified. (Tr. 92, 101).
Other employees with seniority over recalled workers have requested to change titled, but the
call backs were based on seniority and job title, not just seniority. (Tr. 92-93). In fact,
employees senior to Overfield were laid off despite being qualified to perform other jobs. (Tr.
101).
At hearing, Overfield’s mental condition was still not good and he had been depressed
since he lost his job. (Tr. 54, 58, 60). He had been depressed since he lost his job. (Tr. 54). He
was unable to see Dr. Mayron or buy his depression medication (Pristiq) because he had lost his
insurance and could not afford it. (Tr. 54, 58, 60). However, he was taking 30 milligrams of
15

(Tr. 88).

The sheet listed the employees’ address, marital status, birth date, hire date, and title.

36 FMSHRC Page 1670

morphine twice daily, 10 milligrams of Oxycodone four times daily, and Adderall for attention
deficit. (Tr. 56, 58-59). He was prescribed to take Adderall twice a day, but he could not afford
to without insurance. (Tr. 56, 59-60). Instead, he would still take it if he required the ability to
focus and pay attention. (Tr. 59-60). He had been on the pain medication since 2008 when he
had the first of three back surgeries. (Tr. 56). The pain medications were generic and less
expensive. (Tr. 60). This was the same medication he took while working. (Tr. 57). However,
at hearing he felt that if he could take his medication, he could return to work. (Tr. 77).
Overfield believed that he was fired because he wrote too many conditions, including pin
condition, in the book. (Tr. 55). He knew from being pulled aside by Hawkins that Respondent
was unhappy that he recorded conditions. (Tr. 55). He believed they wanted an examiner who
was not keen on finding hazards and violations. (Tr. 55).
Findings and conclusions
A. Timeliness
Both parties agree to the facts in this matter as it pertains to timeliness. Furthermore, the
parties agree about the Commission’s framework for determining timeliness. As a result, the
only issue is the application of that framework to the instant matter.
Under §105(c)(2) of the Mine Act, a miner alleging discrimination has 60 days from the
date of the discriminatory action to file a complaint with the Secretary of Labor. 30 U.S.C.
§815(c)(2). As the parties agree, under settled Commission case law, the 60-day period is not
jurisdictional. See Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 24 (Jan. 1984), aff'd
mem, 750 F.2d 1093 (D.C. Cir. 1984); and IMCO Services, 4 FMSHRC 2135 (Dec. 1982).
Instead, a judge is required to review the facts “on a case-by-case basis, taking into account the
unique circumstances of each situation” in order to determine whether a miner's late filing should
be excused. Arch of Illinois, 21 FMSHRC 1381, 1386-1387 (Dec. 1999) citing Hollis, supra. To
that end, a miner's late filing of a discrimination complaint may be excused on the basis of
justifiable circumstances, including genuine ignorance, mistake, inadvertence, and excusable
neglect. Phillips Dodge Morenci, 18 FMSHRC 1918, 1921-1922 (Nov. 1996) citing Schulte v.
Lizza Indus., Inc., 6 FMSHRC 8, 13 (Jan. 1984). A consideration in determining whether a delay
was justifiable is whether the operator suffered “material legal prejudice.” See Arch of Illinois,
supra; see also Nantz v. Nally & Hamilton, Enters., 16 FMSHRC 2208, 2214-2215 (Nov. 1994)
overruled on other grounds Secretary of Labor on behalf of Poddey v. Tanglewood Energy, Inc.,
18 FMSHRC 1315, 1325 (Aug. 1996); Boswell v. National Cement Co., 14 FMSHRC 253, 257
(Feb. 1992); and Lizza Indus., 6 FMSHRC at 13. Even a lengthy delay beyond the 60-day period
can be permissible when it is justified by the circumstances and without prejudice to the
operator. See e.g. Secretary of Labor on behalf of Hale v. 4-A Coal Co., 8 FMSHRC 905, 90506 (June 1986) (two year delay); Nantz, 16 FMSHRC at 2214-2215 (Nov. 1994) (four month
delay).
In the instant matter, the parties agree that Overfield ceased his employment with
Respondent on September 30, 2013. (GX-2, Tr. 50-51). Therefore, in order for his complaint to

36 FMSHRC Page 1671

be considered timely, Overfield was required to file with the Secretary no later than November
29, 2013. However, Overfield did not file his discrimination complaint until April 3, 2014, 185
days after the adverse employment activity (and therefore, 125 days late for the 60-day deadline).
(GX-1, Tr. 53-54, 56).
I find that Overfield’s failure to file his discrimination complaint until April 4, 2014 was
the result of genuine ignorance, mistake, inadvertence, or excusable neglect. I credit Overfield’s
testimony that he did not file with the Secretary because he did not know that he had that option.
(Tr. 53, 55). While he conceded that he attended safety training that included miners’ rights
instruction, he stated that could not recall hearing that he had the right to bring discrimination
complaints to MSHA. (Tr. 54, 61). While evidence suggested that some information on miners’
rights was posted, nothing shows that Overfield had actual knowledge of his rights but failed to
act. In fact, Respondent’s witness, Duncan, could not state whether Overfield had actually
received this information. (Tr. 107).
Overfield’s genuine ignorance about the Mine Act’s protective provisions is shown by his
subsequent action. Specifically, he filed for his unemployment benefits and immediately sought
out several attorneys in the field of wrongful termination and workplace discrimination. (Tr. 5253, 61-63). Unfortunately for Overfield, none of these attorneys were aware of the Mine Act’s
provisions. (Tr. 52-53, 61-63). The Commission has considered the pursuit of related
complaints when determining whether a delay is justifiable. See Arch of Illinois, 21 FMSHRC at
1387). The ignorance of these attorneys should not form a basis for punishing Overfield. The
evidence shows that Overfield did not “sleep on his rights” but instead actively sought legal
redress for the alleged wrong. He was simply genuinely unsure of how to do so. As a result, I
find that Overfield’s delay was justifiable.
I further find that no evidence was presented that indicated that Respondent suffered any
prejudice from the delay. On the contrary, Respondent was able to vigorously defend its position
through witnesses and documentary evidence without any perceivable hindrance.
In light of these circumstances, I find that a dismissal of Overfield’s claim would be
inappropriate, regardless of the delay.
B. Discrimination Claim
As noted, supra, at the close of hearing Respondent essentially conceded the miner’s
complaint was not frivolously brought. (Tr. 110). Therefore, only a brief discussion of this issue
is deemed warranted. To support a temporary reinstatement there must be protected activity with
a connection, or nexus, to an adverse employment action.
In the instant matter, Overfield testified that in his capacity as mine examiner, he often
reported hazards and violations in the record books on the surface. (Tr. 18-20, 29-31).
Specifically, he testified that he reported broken, missing, or overly spaced roof bolts and other,
similar conditions. (Tr. 20, 29). Therefore, there is evidence of protected activity.

36 FMSHRC Page 1672

Further, Overfield testified that he was pressured to resign on September 30, 2013. (Tr.
51-52). According to the Act and well-settled Commission precedent, suffering a discharge or a
demotion is an adverse employment action. 30 USC ' 815(c)(1); see also Moses v. Whitley Dev.
Corp., 4 FMSHRC 1475, 1478 (Aug. 1982), aff'd, 770 F.2d 168 (6th Cir. 1985). Constructive
discharge is an adverse employment action for the purposes of the Act. See e.g., Simpson v.
FMSHRC, 842 F.2d 453, 461 (D.C. Cir. 1988); and Nantz, 16 FMSHRC at 2210. Therefore,
there is evidence of an adverse action.
In light of the evidence of protected activity and the evidence of adverse action, the
question turns to whether there is a nexus between those two factors. The Commission
recognizes that direct proof of actual knowledge is often not available and that the nexus
between protected activity and the alleged discrimination must often be drawn by inference from
circumstantial evidence rather than from direct evidence. Phelps Dodge Corp., 3 FMSHRC at
2510. The Commission has identified several circumstantial indicia of discriminatory intent,
including: (1) hostility or animus toward the protected activity; (2) knowledge of the protected
activity; (3) coincidence in time between the protected activity and the adverse action; and (4)
disparate treatment of the complainant. See, e.g., CAM Mining, LLC, 31 FMSHRC at 1089; see
also, Phelps Dodge Corp., 3 FMSHRC at 2510.
With respect to hostility or animus, Overfield testified that members of management
asked him to cease making safety complaints and to refrain from reporting conditions in the
record books. (Tr. 31, 34-36, 43). Further, he testified that members of management would give
him a hard time about his zeal for safety. (Tr. 35-36, 43, 69-71). With respect to knowledge,
Overfield testified that he reported safety conditions in the record books reviewed by
management and that management referenced his complaints in ordering him to “back off.” (Tr.
31, 34-36, 43, 69-71). With respect to the coincidence in time, Overfield testified he made these
complaints at all times during which he was a mine examiner from November 2011 to May
2012, and again from November 2012 until his discharge on September 30, 2013. (Tr. 18-20,
29-31). Finally, the Secretary presented no evidence of disparate treatment. Considering all of
the factors together, there appears to be some evidence of nexus between the protected activity
and the adverse employment action.
Respondent argued that it gave Overfield the choice between signing a letter of
resignation because he had failed to follow the proper procedures for sick leave and missed five
unexcused days. (Tr. 44-45, 51-52). However, given the low evidentiary bar at this level of the
proceeding, Respondent conceded that Overfield’s discrimination claim was not frivolously
brought. In light of this fact, and the evidence summarized above, I find that Overfield’s
discrimination complaint was not frivolously brought. As a result, I find that temporary
reinstatement is appropriate.
C. Tolling
While conceding that Overfield’s discrimination complaint had some merit, Respondent
argues that the temporary reinstatement should be tolled in light of intervening circumstances.
Within the scope of a temporary reinstatement proceeding, the Commission has permitted a

36 FMSHRC Page 1673

limited inquiry to determine whether the obligation to reinstate a miner may be tolled. Ratliff v.
Cobra Natural Resources, LLC, 35 FMSHRC 394, *3 (Feb. 2013). The Commission recognized
that “the occurrence of certain events, such as a layoff for economic reasons, may toll an
operator’s reinstatement obligation.” Shemwell v. Armstrong Coal Co., 34 FMSHRC 996, 1000
(May 2012)(citations omitted). When an operator seeks to toll a temporary reinstatement order
based on a subsequent layoff, it bears the burden to demonstrate by a preponderance of the
evidence that “the layoff properly included” the miner who filed the complaint of discrimination.
Ratliff, 35 FMSHRC at *3-4 (citing Gatlin v. KenAmerican Res., Inc., 31 FMSHRC 1050, 1055
(Oct. 2009)). However, if the objectivity of the layoff as applied by the miner is called into
question during the temporary reinstatement proceeding, the judge must apply the “not
frivolously brought” standard from §105(c)(2) of the Act to the miner’s claim. Id. The
Commission further clarified that under the “not frivolously brought” standard, the Secretary’s
burden of proof was “limited to establishing facts which could support the claim that any
inclusion of the complaining miner in the layoff might have been based in part on the miner’s
protected activity.” Rodriguez v. C.R. Meyer and Sons Co., 35 FMSHRC 1183, *4 (May
2013)(emphasis in original). The Commission explained that the lower burden was appropriate
because “the layoff itself, as a termination of employment, must at that point be evaluated as a
potentially wrongful adverse action.” Id. Therefore, if the claim that the layoff arose at least in
part from protected activity is not frivolous, then the reinstatement should not be tolled. Ratliff,
35 FMSHRC at *3-4. If the Secretary then fails to establish any possibility that the miner’s
inclusion in the layoff was motivated by the miner’s protected activity, then the burden reverts to
the operator to show, by a preponderance of evidence, that tolling was justified. Id.
Therefore the Commission requires that when an operator raises the issue of tolling in a
temporary reinstatement proceeding the judge must first determine whether the Secretary has
“called into question” the objectivity of the layoff. If the Secretary has not called that objectivity
into question, then the operator must prove by a preponderance of the evidence that the miner
was properly included in the layoff. If the Secretary has called the objectivity of the layoff into
question, then the judge must determine if facts exist which could support a claim that the layoff
was based in part on the miner’s protected activity. If the Secretary is able to present a nonfrivolous argument regarding the discriminatory motivation of the layoff, then the tolling is
inappropriate. However, if the Secretary is only able to provide frivolous arguments as to the
discriminatory motivation of the layoff, then the Respondent must only prove by a
preponderance of the evidence that the miner was properly included in the layoff.
In the instant proceeding, Respondent argued that the temporary reinstatement should be
tolled because Overfield would have been included in a layoff that occurred on May 10, 2014.
Specifically, it noted that on May 6, 2014, a floor in the mine’s preparation plant collapsed,
necessitating a complete shutdown of the mine on May 10, 2014. (Tr. 84-85, 104-105).
Respondent and the UMWA developed a call-back procedure from that layoff based on seniority
and job title. (Tr. 82-84, 100). Miners were brought back to the mine based on their job titles at
the time of layoff and their overall seniority at the mine. (Tr. 84-86). Respondent argues that
under the terms of that agreement with the union, Overfield would still be laid off as there are
five examiners with more seniority who had not yet been returned to work. (Tr. 92-93).
Therefore, the tolling issue was raised.

36 FMSHRC Page 1674

Respondent argued that the Secretary failed to call into question the objectivity of the
layoff. (Tr. 119). The Commission has not specifically defined what actions are necessary to
“call into question” the objectivity of a layoff. In the instant matter, however, I find that the
Secretary’s actions were sufficient to call into question the objectivity of the layoff. There are
several reasons for this determination. Perhaps most importantly, Secretary’s counsel
affirmatively stated that the Secretary wished to challenge the layoff’s objectivity. (Tr. 119120). In addition, the Secretary’s counsel cross-examined Respondent’s witnesses regarding the
layoff and also introduced documentary evidence during that cross-examination. Given the fact
that the layoff occurred three days before the Discrimination Complaint was filed (and the callback procedure was announced the day before it was filed) and the Complaint was filed without
knowledge of the layoff, there was no reasonable time for the Secretary to “call into question”
the objectivity of the layoff before hearing. (Tr. GX-1, 50-51, 84-85, 105). In fact, Secretary’s
counsel only received copies of Respondent’s documentation regarding the layoff at the hearing.
(Tr. 79-81). Furthermore, even if the Secretary had knowledge of the layoff, the duty to “call
into question” the objectivity of the layoff only arises when Respondent asserts that the
reinstatement should be tolled. Therefore, the total record established that the Secretary
reasonably called into question the objectivity of the layoff.
Having found that the Secretary “called into question” the objectivity of the layoff, the
next issue is whether the Secretary presented facts which could support a claim that the miner’s
inclusion in the layoff was based in part on the miner’s protected activity. In the instant matter,
it appears that all the miners at the mine were laid off for several days after the collapse of the
prep plant. (Tr. 83-85, 105). The issue here is whether facts exist that could support a claim that
Respondent’s failure to call Overfield back to work since such time was the result of his alleged
protected activity. I find that such facts exist. Specifically, Respondent’s witnesses testified that
the layoff and callback procedure used at the mine differed in some ways from the collective
bargaining agreement as it relates to reduction and re-alignment. (Tr. 92-94, 96, 101). If the
collective bargaining agreement sections regarding reduction and re-alignment were followed,
Overfield could have bid for the roof bolter position. (Tr. 93-94). At the time of the hearing a
roof bolter position was filled by a miner with less seniority than Overfield. (Tr. 96). Further,
McCullough testified that when Respondent and the union were negotiating this modified callback procedure, that Respondent was aware of Overfield’s discrimination complaint.16 (Tr. 100).
As discussed supra, Respondent was aware of Overfield’s protected activity. (Tr. 31, 34-36, 43,
69-71). Therefore, I find that the Secretary has raised a non-frivolous issue as to whether the
call-back procedure was designed in part to prevent Overfield from being called back because of
his protected activity.
Respondent’s witnesses argued at hearing that Overfield was not considered in creating
the call-back procedure. (Tr. 100). McCullough argued that the reduction and re-alignment
sections of the collective bargaining agreement did not apply in this matter. (Tr. 94). Further,
she stated that the motivation in creating the call-back procedure used was to protect the miners’
benefits during the layoff. (Tr. 94-95). All of these assertions could very well be true.
16

McCullough’s inability to answer what specific miner had filled Overfield’s position
raised further questions as to the objectivity of the miner’s continued inclusion in the layoff.
(See also Secretary’s cross-examination at Tr. 98-100).

36 FMSHRC Page 1675

However, at this preliminary stage, it would be inappropriate to consider the conflicting evidence
regarding the call back procedure. It is sufficient that the facts could support a claim that
Respondent designed the call back procedure to prevent Overfield from returning to the mine. A
full determination of the circumstances surrounding the layoff and call back will be made at the
hearing on the merits.
Therefore, after careful review of the total record and above-cited case law, I find that the
Secretary’s claim was not frivolous that Overfield may not have been called back to work from
layoff due to, in part, his past safety complaints. The Secretary mustered sufficient facts that
could support the claim that any continuing inclusion of Overfield in the layoff following the
shutdown may have been based in part on his protected activity. Therefore, given the burden
would not in such case revert to the operator to show, by a preponderance of the evidence, that
tolling was justified, I need not resolve whether Respondent proved that Overfield was properly
laid off. Instead, I find that tolling is inappropriate in this matter. Therefore, immediate
temporary reinstatement is warranted.
ORDER
Based on the above findings, the Secretary=s Application for Temporary Reinstatement is
granted. Accordingly, Respondent is ORDERED to provide immediate reinstatement to
Overfield, as a mine examiner, at the same rate of pay, for the same number of hours worked,
and with the same benefits, as at the time of his discharge.
/s/ John Kent Lewis
John Kent Lewis
Administrative Law Judge
Distribution: (Certified Mail)
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219
Jeffrey K. Phillips, Esq., Steptoe & Johnson, PLLC, One Paragon Centre, 2525 Harrodsburg Rd.,
Suite 300, Lexington, KY 40504

36 FMSHRC Page 1676

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

June 19, 2014
BIG RIDGE, INC.,
Contestant
v.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
BIG RIDGE, INC.,
Respondent

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CONTEST PROCEEDINGS
Docket No. LAKE 2012-453-R
Order No. 8431667; 03/06/2012
Docket No. LAKE 2012-454-R
Citation No. 8431668; 03/06/2012
Docket No. LAKE 2012-455-R
Citation No. 8431669; 03/06/2012
CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2012-174
A.C. No. 11-03054-270696-02
Docket No. LAKE 2012-175
A.C. No. 11-03054-270696-03
Docket No. LAKE 2012-262
A.C. No. 11-03054-273420-02
Docket No. LAKE 2012-263
A.C. No. 11-03054-273420-02
Docket No. LAKE 2011-349
A.C. No. 11-03054-242336-02
Mine: Willow Lake Portal

Appearances: Letha A. Miller, Esq., and Breyana Penn, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado for Petitioner
Arthur M. Wolfson, Esq., and Jason P. Webb, Esq., Jackson Kelly, PLLC,
Pittsburgh, Pennsylvania for Respondent
Before:

Judge McCarthy

36 FMSHRC Page 1677

DECISION AND ORDER
I. Statement of the Case
This case is before me upon three Notices of Contest filed by Contestant Big Ridge, Inc.
against the Secretary of Labor and five Petitions for Assessment of Civil Penalties filed by the
Secretary against Big Ridge, Inc. (Respondent) pursuant to sections 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(d) (the “Mine Act”), as amended.1 Twelve
violations of mandatory safety standards remain at issue from four dockets. They involve nine
104(a)(1) citations and three 104(d)(2) orders issued by various MSHA inspectors between
August 2010 and October 2011. P. Exs. 1, 4, 6, 9, 10, 12, 21, 32, 34, 38, 40, 43. The Secretary
has proposed specially assessed penalties for six of the twelve unresolved citations/orders.
Respondent contests the alleged unwarrantable failure, significant and substantial (S&S), gravity
and/or negligence designations, and the validity of the proposed civil penalties.
A hearing was held in Carbondale, Illinois. The parties agreed to conduct several “mini
trials” on each unresolved citation/order, elected to waive opening statements, and introduced
testimony and documentary evidence, with witnesses sequestered. Tr. 13-24.
Based on the entire record, including the parties’ lengthy post-hearing briefs and my
observation of the demeanor of the witnesses,2 I first evaluate citations/orders for roof control,
accumulations of combustible material, and maintenance of the incombustibility content of rock
dust. I then evaluate the ventilation control, belt maintenance, and accumulation citations
written during an impact inspection in which Respondent allegedly was denied its walkaround
rights under section 103(f) of the Mine Act. Finally, I affirm my bench decision vacating on
credibility grounds an alleged unwarrantable order for failure to perform a pre-shift examination
and certify that the examination had been made.

At the outset of the hearing, Respondent withdrew its Notices of Contests of Order No.
8431667 and Citation Nos. 8431668 and 8431669. Tr. 7. In addition, the parties settled the
majority of the citations and orders at issue in the above-referenced dockets prior to hearing,
including all of Docket No. LAKE 2011-349. The settlement terms were submitted to the
undersigned as Joint Exhibit 2. Tr. 12. I have reviewed the parties’ joint settlement motion
made on the record and I approve the parties’ settlement agreement set forth in Joint Exhibit 2 as
consistent with the criteria set forth in section 110(i) of the Act and in furtherance of the public
interest.
1

In resolving conflicts in testimony, I have taken into consideration the demeanor of the
witnesses, their interests in this matter, the inherent probability of their testimony in light of
other events, corroboration or lack of corroboration for testimony given, and consistency or lack
of consistency of testimony.
2

36 FMSHRC Page 1678

II. Basic Legal Principles
A.

Significant and Substantial

The Secretary alleges that the violations discussed below were of a significant and
substantial nature. An S&S violation is a violation “of such nature as could significantly and
substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C.
§ 814(d). A violation is properly designated S&S, “if, based upon the particular facts
surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981). In order to establish the S&S nature of a violation, the
Secretary must prove: “(1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard – that is, a measure of danger to safety – contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC
1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power
Co. v Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).
It is the third element of the S&S criteria that often is the most difficult to apply. The
element is established only if the Secretary proves “a reasonable likelihood the hazard
contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., 7
FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based on the particular facts
surrounding the violation and must be made in the context of continued normal mining
operations. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., 6
FMSHRC 1573, 1574 (July 1984)). “The Secretary need not prove a reasonable likelihood that
the violation itself will cause injury.” Cumberland Coal Res., LP, 33 FMSHRC 2357, 2365 (Oct.
2011) (quoting Musser Engineering, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010).
The S&S nature of a violation and the gravity of a violation are not synonymous. The
Commission has pointed out that the “focus of the seriousness of the violation is not necessarily
on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather
on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept.
1996). The Commission has emphasized that, in accordance with the language of section
104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be
significant and substantial. U.S. Steel Mining Co., 6 FMSHRC at 1575. With respect to citations
or orders alleging an accumulation of combustible materials, the question is whether there is a
confluence of factors that make an injury-producing fire and/or explosion reasonably likely.
Utah Power & Light Co., Mining Div., 12 FMSHRC 965, 970-971 (May 1990) (“UP&L”).
Factors that have been considered include the extent of the accumulation, possible ignition
sources, the presence of methane, and the type of equipment in the area. UP&L, 12 FMSHRC at
970-71; Texasgulf, 10 FMSHRC at 500-03.

36 FMSHRC Page 1679

B.

Negligence and Unwarrantable Failure
The Secretary defines conduct that constitutes negligence under the Mine Act as follows:
Negligence is conduct, either by commission or omission, which falls
below a standard of care established under the Mine Act to protect
miners against the risks of harm. Under the Mine Act, an operator is
held to a high standard of care. A mine operator is required to be on
the alert for conditions and practices in the mine that affect the safety
or health of miners and to take steps necessary to correct or prevent
hazardous conditions or practices. The failure to exercise a high
standard of care constitutes negligence.

30 C.F.R. § 100.3(d).
The Commission has defined an unwarrantable failure as aggravated conduct constituting
more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987).
Unwarrantable failure is defined by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference” or a “serious lack of reasonable care.” Emery Mining Corp., 9
FMSHRC at 2003; see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d at 136. Whether
conduct is “aggravated” in the context of an unwarrantable failure analysis is determined by
looking at all the facts and circumstances of each case to see if any aggravating factors exist,
such as the length of time that the violation has existed, the extent of the violative condition,
whether the operator has been placed on notice that greater efforts are necessary for compliance,
the operator’s efforts in abating the violative condition, whether the violation is obvious or poses
a high degree of danger, and the operator’s knowledge of the existence of the violation. See,
e.g., Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Repeated similar violations
are relevant to an unwarrantable failure determination to the extent that they serve to put an
operator on notice that greater efforts are necessary for compliance with a standard. Peabody
Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).
C.

Penalty Assessment Principles

The Commission outlined the parameters of its responsibility for assessing civil penalties
in Douglas R. Rushford Trucking, 22 FMSHRC 598 (May 2000). The Commission stated:
The principles governing the Commission’s authority to assess civil
penalties de novo for violations of the Mine Act are well established.
Section 110(i) of the Mine Act delegates to the Commission
“authority to assess all civil penalties provided in [the] Act.” 30
U.S.C. § 820(i). The Act delegates the duty of proposing penalties
to the Secretary. 30 U.S.C. § § 815(a) and 820(a). Thus, when an
operator notifies the Secretary that it intends to challenge a penalty,
the Secretary petitions the Commission to assess the penalty. 29

36 FMSHRC Page 1680

C.F.R. §§ 2700.28 and 2700.44. The Act requires that, “[i]n
assessing civil monetary penalties, the Commission [ALJ] shall
consider” six statutory penalty criteria: [1] the operator’s history of
previous violations, [2] the appropriateness of such penalty to the size
of the business of the operator charged, [3] whether the operator was
negligent, [4] the effect of the operator’s ability to continue in
business, [5] the gravity of the violations, and [6] the demonstrated
good faith of the person charged in attempting to achieve rapid
compliance after notification of a violation.
22 FMSHRC at 600 (citing 30 U.S.C. § 820(i)).
In keeping with this statutory requirement, the Commission has held that “findings of fact
on the statutory penalty criteria must be made” by its judges. Sellersburg Stone Co., 5 FMSHRC
287, 292 (Mar. 1983). Once findings on the statutory criteria have been made, a judge’s penalty
assessment for a particular violation is an exercise of discretion, which is bounded by proper
consideration for the statutory criteria and the deterrent purposes of the Act. Id. at 294; Cantera
Green, 22 FMSHRC 616, 620 (May 2000).
In exercising this discretion, the Commission has reiterated that a judge is not bound by
the penalty recommended by the Secretary. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug.
2008). In addition, the de novo assessment of civil penalties does not require “that equal weight
must be assigned to each of the penalty assessment criteria.” Thunder Basin Coal Co., 19
FMSHRC 1495, 1503 (Sept. 1997). However, when a penalty determination “substantially
diverge[s] from those originally proposed, it behooves the . . . judge[] to provide a sufficient
explanation of the bases underlying the penalties assessed.” Spartan Mining, 30 FMSHRC at
699. Otherwise, without an explanation for such a divergence, the “credibility of the
administrative scheme providing for the increase or lowering of penalties after contest may be
jeopardized by an appearance of arbitrariness.” Sellersburg, 5 FMSHRC at 293.
As Senior Judge Zielinski recently explained in American Coal Co., 35 FMSHRC ___,
slip op at 54-55, No. LAKE 2008-666 (May 19, 2014), the purpose of explaining significant
deviations from proposed penalties is to avoid the appearance of arbitrariness. See Sellersburg
Stone Co., 5 FMSHRC 287, 293 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984). Similarly
situated operators, determined to be liable for violations with similar gravity, negligence and
other penalty criteria, ideally should be assessed similar penalties. Absent some guideline,
however, a judge has no quantitative reference point to aid in specifying a penalty within the
current statutory/regulatory range of $100 to $70,000. The Secretary’s regulations for
determination of a penalty amount by a regular or special assessment, 30 C.F.R. §§ 100.3, 100.5,
take into consideration the statutory factors that the Commission is obligated to consider under
section 110(i) of the Act.3 The product of these assessment formulae provide a useful reference
3

Under the regulations, penalty points are assigned based on the size of the operator and
(continued...)

36 FMSHRC Page 1681

point, which promotes consistency in the imposition of penalties by Commission judges. See
Magruder Limestone Co., 35 FMSHRC 1385, 1411 (May 2013) (ALJ) (regular assessment
regulations provide a helpful guide for assessing an appropriate penalty that can be applied
consistently).
Accordingly, in determining penalties for the litigated violations, the penalty produced by
application of the Secretary’s assessment formula will be used as a reference point, and adjusted
depending on the particular findings with respect to the statutory penalty criteria. The tables and
charts in the regulations provide a limited number of categories for some factors. For example,
the table for operator’s negligence consists of five gradations, ranging from “No negligence” to
“Reckless disregard.” 30 C.F.R. § 100.3(d). In reality, however, the degree of an operator’s
negligence will fall on a continuum, dictating that adjustments will generally be required. Other
unique circumstances may dictate lower or higher penalties. Violations involving extreme
gravity and/or gross negligence, or other unique aggravating circumstances may dictate
substantially higher penalty assessments. A party seeking a reduced or an enhanced penalty
must assume the burden of producing evidence sufficient to justify any requested adjustment.
Where the Secretary urges a penalty higher than that derived by reference to the
assessment process set forth in 30 C.F.R. § 100.3, he will have the burden of establishing the
appropriateness of the higher penalty, based upon the statutory penalty criteria. The undersigned
recognizes that the Secretary has developed, pursuant to his authority under 30 C.F.R. § 100.5, a
process for the special assessment of proposed penalties. MSHA, OFFICE OF ASSESSMENTS,
ACCOUNTABILITY, SPECIAL ENFORCEMENT & INVESTIGATIONS, SPECIAL ASSESSMENT GENERAL
PROCEDURES (Sep. 7, 2011), http://www.msha.gov/PROGRAMS/assess/SpecialAssess/
SpecialAssessments2011.pdf. These procedures, however, have not been codified as binding
regulations, and thus, have not been subject to notice and comment rule making, unlike the
normal assessment procedures in section 100.3. Where the Secretary has provided adequate
documentation of how he determined the specially assessed penalty and is able to demonstrate
the appropriateness of proposing a specially assessed penalty, the guidance in the General
Procedures may also provide a helpful guide for assessing an appropriate penalty.
(...continued)
the operator’s controlling entity; the operator’s history of previous violations; the operator’s
history of repeat violations of the same standard; the degree of the operator’s negligence; and,
the gravity of the violation, including the likelihood of an occurrence of an event against which a
standard is directed, the severity of injury or illness if the event were to occur, and the number of
persons potentially affected if the event were to occur. A proposed penalty is determined by
applying the total of the points assigned to a “Penalty Conversion Table,” which specifies
proposed penalties ranging from $112 for 60 or fewer points, up to the statutory/regulatory
maximum of $70,000 for 144 or more points for non-flagrant citations and orders. That figure
may then be adjusted by reducing it by 10% if the operator demonstrated good faith in abating
the violation. 30 C.F.R. § 100.3(f). A further reduction may occur if the operator can
demonstrate to MSHA’s District Manager that the penalty will adversely affect its ability to
continue in business. 30 C.F.R. § 100.3(h).
3

36 FMSHRC Page 1682

The Secretary has proposed a total penalty of $274,153 for the twelve citations/orders
remaining at issue. For the reasons explained herein, I assess a total penalty of $116,622.
III. Stipulated Facts
The parties stipulated to the following facts at hearing.
1.

At all times relevant to these proceedings, Respondent was engaged in
underground bituminous coal mining operations at Willow Lake Portal (Mine ID
11-03054) in Equality, Illinois.

2.

Respondent’s mining operations affect interstate commerce.

3.

Respondent is subject to the jurisdiction of the Federal Mine Safety and Health
Act of 1977. 30 U.S.C. §§ et seq. (the “Mine Act”).

4.

Respondent is an “operator” as defined in § 3(d) of the Mine Act, 30 U.S.C. § 803
(d), at Willow Lake Portal where the Citations being contested in the proceedings
were issued.

5.

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

6.

The parties stipulate to the authenticity of their exhibits, but not to the relevance
or truth of the matters asserted therein.

7.

The individuals whose signatures appear in Block 22 of the Citations at issue in
these proceedings are all authorized representatives of the United States Secretary
of Labor, assigned to MSHA’s Benton, Illinois and St. Clairsville, Ohio Field
Offices at the time of the inspections at issue. All six inspectors were acting in
official capacity when the Citations at issue were issued.

8.

The Citations at issue in these proceedings were properly served upon Big Ridge,
Inc. as required by the Mine Act.

9.

The Citations at issue in these proceedings may be admitted into evidence for the
purpose of establishing their issuance, but not for the truthfulness or relevancy of
any statements asserted therein.

10.

The proposed penalties will not affect Respondent’s ability to remain in business.

11.

The certified copies of the MSHA Assessed Violations History reflect the history
of the citation issuance at the mine for fifteen months prior to the date of the
Citations and may be admitted into evidence without objection by Respondent.

36 FMSHRC Page 1683

12.

The operator demonstrated good faith in abating the violations.

13.

Big Ridge, Inc. is a large operator and Willow Lake Portal is a large mine.

14.

The parties have settled Docket LAKE 2011-349; and citations from Docket
LAKE 2012-174, LAKE 2012-175, LAKE 2012-262 and LAKE 2012-263. The
specific terms are outlined in Joint Exhibit 2.

Jt. Ex. 1; see also Tr. 11-12.
IV.

Factual Background

Respondent operates the Willow Lake Portal Mine (“WLPM”), an underground,
bituminous coal mine, located in Equality, Illinois. Jt. Ex. 1, para 1; Tr. 30-33. The coal is
mined via perimeter or room and pillar mining. Jt. Ex. 1; Tr. 434. The mine is large and made
up of miles of belt and air courses. Several MSHA inspectors work on a regular basis for about
three months to complete each quarterly inspection. Jt. Ex. 1; Tr. 31-32.
WLPM is a “gassy” mine and liberates in excess of 1,000,000 cubic feet of methane
every 24 hours. Inspectors regularly travel the mine to perform five-day spot ventilation
inspections. Tr. 31, 510.
At material times herein, the WLPM operated on three shifts. The day shift ran from
7:00 a.m. until 3:00 p.m. The afternoon shift started at 3:00 p.m. and ended at 11:00 p.m. The
midnight or graveyard shift started at 11:00 p.m. and continued until 7:00 a.m. Tr. 150-51.
WLPM has a significant history of roof falls and the inspectors in this case had
knowledge that a number of unintentional roof falls had occurred before their inspections. Tr.
188-89, 207, 326-27, 330-31; P. Exs. 28-30, 61. Three of the citations at issue concern alleged
roof control violations of §§ 75.202(a), 75.202(b) and 75.220(a)(1). They were designated as
S&S violations, with high or moderate negligence. Two of these three citations were issued in
August 2010 by inspector James Preece and one was issued in June 2011 by inspector James
Rusher. The timing is significant because of WLPM’s recent history of roof control problems
and because MSHA repeatedly notified Respondent that it needed to make greater efforts to
comply with roof control standards after it implemented its Rules To Live By (“RTLB”)
program in March 2010. Tr. 193-94; P. Ex. 26. The RTLB fatality prevention program
specifically included sections 75.202 and 75.220(a)(1), the first two standards on the list. Tr.
193-94; P. Ex. 26.
MSHA inspectors specifically discussed the RTLB program and Respondent’s need to
comply with the roof control standards with Respondent’s management at closeout meetings
immediately prior to the roof control citations at issue. P. Exs. 28-29; Tr. 62-63, 192-93. The

36 FMSHRC Page 1684

first closeout meeting occurred on March 29, 2010. The closeout document that was circulated
gave Respondent the following notice:
Better focus on the “Rules To Live By” standards especially since
MSHA is holding the mine operator more accountable for violation
of the identified standards with stronger enforcement.
P. Ex. 28, at 3; Tr. 192-93. The document indicates that section 75.202(a) was cited twenty-one
times and section 75.220(a)(1) was cited ten times that quarter. P. Ex. 28, at 17. Thereafter, the
June 2010 closeout document indicated that roof control violations had decreased that quarter,
but gave the same notice regarding enhanced enforcement under the RTLB program. P. Ex. 29,
at 2-3.
Inspector Preece found several roof violations in August 2010. Preece issued Citations
Nos. 8030991 and 8030992 alleging violations of § 75.220(a) and § 75.202(b), respectively. See
P. Exs. 4, 6. The day before he issued said citations, Preece issued two other roof control
citations, one for violation of §75.220(a) and one for violation of § 75.203(e)(2). R. Ex. 85, at
14; Tr. 237-45.
Thereafter, on September 24, 2011, another closeout meeting occurred. P. Ex. 30. The
closeout document indicated that twenty-five citations were issued for section 75.202(a)
violations during the quarter. It further stated:
Roof and Ribs - roof control violations are high here. Problems need
to be addressed before we have to take care of them.
P. Ex. 30, at 9.
For the inspection quarter from July through September 2010, there were twenty-five
section 75.202(a) violations, the second most violated standard at the mine that quarter. P. Ex.
30, at 5. Furthermore, Respondent was aware that its mine had a significant history of roof falls
and falling rock in draw rock areas. Between February and August 2010, Respondent reported
six roof falls that resulted in injuries and several others that were reported as accidents without
injury. P. Ex. 61.
On June 24, 2011, inspector James Rusher issued one of the roof control citations at
issue, Citation 8427546, alleging a violation of § 75.202(a). P. Ex. 21. The record establishes
that 140 section 75.202(a) citations were served on Respondent in the two years prior to June 24,
2011. Id.; Tr. at 328, 346. Furthermore, in the six months prior to the citation issued by Rusher
in June 2011, nine reportable roof falls resulted in two injuries. P. Ex. 61.
The record also establishes that Respondent had significant problems with
accumulations, as evidenced by recurring citations, orders, and discussions with MSHA
personnel. In the two years prior to Preece’s August 2010 inspections, Respondent was cited for

36 FMSHRC Page 1685

299 violations of § 75.400. P. Ex. 1; Tr. 66. Although the March 2010 closeout conference
noted a reduction in § 75.400 citations, the June 2010 closeout conference notes emphasized that
§ 75.400 violations had increased again and needed improvement. See P. Exs. 28-30. Even after
Preece issued 104(d)(2) Order No. 8030700 on August 2, 2010. Section 75.400 was the most
cited violation for the third quarter that year. P. Ex. 30.
V. Findings of Fact and Conclusions of Law
A.

Roof Control Citations Nos. 8030991, 8030992, and 8427546
1.

Citation No. 8030991

Respondent does not challenge the violation of section 75.220(a)(1) alleged in Citation
No. 8030991 for failure to follow the MSHA-approved roof control plan. R. Br. 26. Rather,
Respondent challenges the gravity, S&S, and high negligence findings and the appropriateness
of the specially assessed $47,700 penalty. I affirm the violation, as written, but reduce the
negligence to moderate and reduce the specially assessed penalty from $47,000 to $14,700.
a.

The Alleged Violation

During an E01 inspection on August 4, 2010, inspector Preece,4 accompanied by
Respondent’s safety and compliance manager, Bob Clarida, issued Citation No. 8030991 for a
violation of 30 C.F.R. § 75.220(a)(1). Tr. 173-74; P. Ex. 4.5 Preece determined that Respondent
was not following the MSHA-approved roof control plan because the fender (block of coal)
between the #8 and #9 perimeter cuts on unit 5 measured five-feet three-inches wide, instead of
the six-foot width required in the plan. P. Ex. 4, P. Ex. 5, at 24; Tr. 192, 266. Accordingly,
Preece wrote Citation No. 8030991 alleging the following unlawful condition or practice
The approved roof control plan page 24 was not being complied with
on the 005/005 section. The fender left between the No. 8 and No. 9
perimeter (3+25) cuts measured 5’3”. Visible footprints were
Inspector Preece has worked for MSHA since 2000 as an Authorized Representative
(“AR”) of the Secretary. Tr. 25-26. Preece works in the St. Clairsville, Ohio MSHA Field
Office. In August 2010, he inspected the WLPM while on detail. Tr. 30. Before working for
MSHA, Preece worked in the coal mining industry in various job classifications. Tr. 27-28. He
has a Mining Engineering degree from West Virginia Institute of Technology, an Occupational
Development degree from Marshall University, and mine foreman certifications from Ohio and
West Virginia. Tr. 29.
4

Section 75.220 states that “[e]ach mine operator shall develop and follow a roof control
plan, approved by the District Manager, that is suitable to the prevailing geological conditions,
and the mining system to be used at the mine. Additional measures shall be taken to protect
persons if unusual hazards are encountered.”
5

36 FMSHRC Page 1686

observed where a miner had traveled behind the barricade as
referenced in citation 8030991 . . . .6
P. Ex. 4.
Preece determined that the violation contributed to the hazard of a roof fall, which was
reasonably likely to cause an injury because miners were traveling in areas that had been mined,
but not supported properly. P. Ex. 4; Tr. 178, 186, 200. Preece determined that the most likely
injury would be a fatal, crushing injury from a roof fall. P. Ex. 4; Tr. 187. Preece also
determined that one person would be affected because ten to twelve people were actively
working on the section, and there were fresh, visible footprints in the area. P. Ex. 4; Tr. 184,
200.
b. Positions of the Parties
Respondent argues that the Secretary adduced no evidence to demonstrate a reasonable
likelihood of a serious injury based on the nine-inch deviation from the plan requirement that the
front of the fender be six feet wide. R. Br. 28 (citing P. Ex. 5, at 24; P. Ex. 8). Respondent also
argues that there is no evidence that the cited condition adversely affected the immediate roof in
the area. Rather, Respondent relies on Clarida’s testimony that the narrow fender did not
compromise roof control, and the roof condition in the area looked “pretty good, normal.”
Respondent also relies on Preece’s acknowledgment that there were no problems with the roof
bolts, and on compliance manager Todd Grounds’ testimony that roof bolts with cables attached
were installed before the continuous miner made perimeter cuts. R. Br. 28; Tr. 222, 264-65, 276.
In addition, Respondent claims that there was no exposure to the condition. R. Br. 29.
Respondent notes that the perimeter cuts that created the fender were complete. Id. (citing Tr.
276). According to Respondent, the supplemental roof support would have been removed from
the “fresh air side” of the fender. Therefore, the continuous miner operator would not have been
exposed to the fender while removing supplemental support. Id. (citing Tr. 265). Respondent
further notes that after the cut, the area around the fender was barricaded, and there was no
reason for anyone to pass by that area. Id. (citing Tr. 276, 291). Although Preece testified that
“[if] you don’t follow the roof control plan, over time it’s going to deteriorate and come out as
well.” Tr. 212. Respondent argues that “over time,” there would be no exposure because the
immediate area around the fender was barricaded and the entire set of rooms was barricaded at
the mouth, when completed. R. Br. 29 (citing Tr. 259-60).
Preece designated the violation as S&S because he believed that there was travel through
the area after the fender was created based on visible footprints behind the barricade. Tr. 184; P.
Ex. 4. In response to a leading question suggesting that the footprints were fresh, Preece
testified that the footprints were fresh because the day before there had been rock dusting
citations issued, and the footprints were visible in the fresh rock dust. Tr. 199. Respondent
Counsel for the Secretary represented at hearing that the citation referenced should be
8030992, discussed below, not 8030991. Tr. 185-86.
6

36 FMSHRC Page 1687

argues that Preece was mistaken because the Certified Violation History Report shows that no
citation was issued on August 3, 2010 for a violation of section 75.400 or 75.403, each of which
would require rock dusting for abatement purposes. R. Br. 30, n.17 (citing P. Ex. 63). In
addition, because the footprints went straight through and not around the barricade, Respondent
disputes any travel through the area after the perimeter cuts were made. R. Br. 30 (citing Tr.
279-80).
Respondent further argues that even if travel past the fender occurred, the Secretary has
failed to establish that the nine-inch deviation in fender width resulted in a roof condition that
posed a reasonable likelihood of serious injury. Respondent relies, in part, on ALJ decisions
applying section 75.202(a), which delete S&S determinations based on the unlikelihood that two
specific events will occur simultaneously, i.e., a rock will fall from the roof while a miner is
directly underneath it. R. Br. 29, n. 16 (citing Ohio County Coal Co., 31 FMSHRC 1486, 1489
(Dec. 2009) (ALJ); Freedom Energy Mining Co., 32 FMSHRC 1809, 1829 (Dec. 2010) (ALJ)).
Respondent argues that Preece’s own actions undercut his determination that the width of the
fender posed any serious hazard because Preece placed himself at the fender to measure it and
travel past it. Id. (citing Tr. 176-77). Finally, Respondent argues that Preece’s attempt to link
the purported travel past the fender to exposure to unsupported top should be discounted because
Preece followed the footprints “till they ended” and he never traveled under unsupported roof.
R. Br. 30-31 (citing Tr. 197, 198, 223-24). Therefore, Respondent concludes that the route of
travel past the narrow fender did not place anyone under unsupported top. R. Br. 31.
The Secretary relies, in part, on a fatalgram from MSHA’s website that involved the
death of a miner caused by a roof fall in a mine with a similar roof. P. Ex. 31, at 2; Tr. 211. The
fatalgram states that the roof at issue was “gray shale and sandstone with intermittent siltstone
and carbonaceous shale deposits.” P. Ex. 31, at 2; Tr. at 211. Preece testified that the roof at
WLPM is similar since black shale and limestone are present. Tr. at 211. The fatalgram
investigation established that the mine was not following its roof control plan and a rock –
measuring 89 inches long by 45 to 54 inches wide by one to four inches thick – broke in two
pieces when it struck the victim. P. Ex. 31, at 1; Tr. 211. As noted, Preece testified that when a
mine does not follow its roof control plan, the roof will deteriorate over time and material will
come loose from the roof. Tr. 211.
Respondent counters that the roof control plan violation in the fatalgram involved a West
Virginia mine where thirty-five bolts exceeded the four-foot spacing requirement in the rock-fall
area. It did not involve the width of a fender during perimeter mining. Respondent argues that
the instant violation involves different requirements for different mining practices, and is not the
least bit similar. R. Br. 32-33. Further, Respondent argues that none of the roof falls that
occurred at WLPM between October 2009 and October 2011 (see P. Ex. 61) resulted from a
fender that was less than six feet in width. Therefore, Respondent argues that the fatalgram is
immaterial. Id.

36 FMSHRC Page 1688

c.

Legal Analysis

I find the violation to be S&S. I credit the testimony of Preece, an experienced
underground coal inspector, over contrary testimony from Clarida, that the violation of the
mandatory standard created a measure of danger to safety because the non-compliant fender
contributed to the hazard of a roof fall that was reasonably likely to result in a serious injury. Tr.
212. Specifically, Preece testified that in his experience a roof fall is “very likely . . . if you
don’t support the roof, the roof will fall . . . it has no support . . . over time it’s going to
deteriorate and come out . . .” Tr. 212. Although Respondent relies on Clarida’s testimony that
no one was exposed to the noncompliant fender because the barricades were up and no one was
supposed to be in that area after the cut (Tr. 276), I find that a miner was in the area based on the
visible footprints that Preece observed, and that other miners were likely to be in the area and
exposed to the noncompliant fender during required examinations.7
I also emphasize that the instant record establishes an ongoing likelihood of roof falls at
WLPM. Tr. 178, 190, 206-07. Using Petitioner’s Exhibit 61, Preece highlighted the multitude
of roof falls at WLPM in the six months prior to his inspection. P. Ex. 61; Tr. 202. The MSHA
District Office considers such history when a roof control plan is approved, and there are no
exceptions to the fender-length requirement. Tr. 174. The standard requires development of a
roof control plan that “is suitable to the prevailing geological conditions and the mining system
to be used at the mine.” MSHA determined that the geological conditions and the room and
pillar mining system used at WLPM required the fender to be six or more feet wide at the front.
It was nine inches too narrow.
Grounds, Respondent’s compliance manager, conceded that the roof control
measurements that Respondent agreed upon and MSHA approved are important and should be as
precise as possible. Tr. 267-68. Respondent’s other witnesses also conceded that Respondent
must comply with the specific requirements of its MSHA-approved roof control plan. Tr. 286,
292. In these circumstances, particularly in light of Respondent’s recent history of roof falls, I
conclude that during continuous mining operations, it was reasonably likely that the
noncompliant fender would contribute to a hazard of another roof fall that would result in serious
injury.
I am not persuaded by Respondent’s argument that even if a section foreman or shift
leader subsequently learned about the creation of the narrow fender, there would be nothing that
such manager could do about it after it was created as the coal could not be put back in the
fender. I find that additional support could have been installed. I further find that there was
miner exposure, even in the absence of the visible footprint evidence, because the foreman or an
examiner should check the cuts after they are made. Further, a weekly examination is required
behind the barricade after perimeter cuts are taken. Tr. 234, 260-61. Finally, although Clarida
testified that during his career he was not aware of any incident when a continuous miner
operator would be operating the remote on the side of the machine opposite the fender, mining
history is replete with instances of serious injury or fatality when the operator is pinned on the
wrong side of the machine or struck by falling rock when in the red zone.
7

36 FMSHRC Page 1689

I further find that Respondent’s negligence should be reduced from “high” to “moderate.”
Per regulation, high negligence occurs when an operator knew or should have known of the
violation, and there are no mitigating circumstances. 30 C.F.R. § 100.3, Table X. Respondent
presented evidence that the continuous miner operator, an hourly employee, was responsible for
taking the cuts that created the narrow fender, and that the section foreman or shift leader was
only responsible for marking where the cuts were to be taken. Tr. 265, 289. In addition,
Respondent presented evidence that the section foreman or shift leader would have limited
opportunity to observe the narrow fender because a barricade was installed right after the cut was
made and no one would travel past that point. Tr. 276, 283.8 In these circumstances, I find that
Respondent has raised sufficient mitigating circumstances to reduce negligence from high to
moderate. See Excel Mining LLC, 497 F. App’x 78, 79 (D.C. Cir. 2013) (if no mitigating factors
exist, the violation is attributable to high negligence; otherwise, the inspector must find
moderate, low, or no negligence).
The Secretary justified a special assessment in this matter, particularly given
Respondent’s history concerning roof control violations and the Rules to Live By notice. Tr.
242-44, 246. Guided by the criteria set forth in § 100.3(a) and the Special Assessment General
Procedures, I assess a penalty of $14,700.
2.

Citation No. 8030992

The Secretary argues that Respondent violated § 75.202(b) when a miner traveled under
unsupported roof in a previously mined area, and that such violation was significant and
substantial, reasonably likely to be fatal, and resulted from moderate negligence. P. Br. 24.
Respondent argues that it did not violate the standard because no miner worked or traveled under
unsupported top. R. Br. 42. Respondent also challenges the S&S and moderate negligence
designations and the appropriateness of the specially assessed $13,600 penalty. I affirm the
violation, reduce negligence from “moderate” to “no negligence,” reduce the likelihood of injury
or illness from “reasonably likely” to “unlikely,” and delete the significant and substantial
designation. Based on said modifications, I decline to be guided by the Secretary’s special
assessment of the proposed penalty, and assess a penalty of $162.
a.

The Alleged Violation

Near the cited fender, Preece observed fresh footprints in rock dust that he traced back to
a previously mined-out perimeter area until they turned and ended at the corner mouth of an old
set of unbolted rooms (return) where a miner had gone to the bathroom under unsupported roof
on fresh rock dust. Tr. 196-200; P. Ex. 8. Preece cited Respondent for a violation of §
Although Preece testified and his notes indicate that the narrow fender appears to be a
practice with perimeter mining and that previous rooms and mining indicate the same violation
of the plan (R. Ex. 85, at 14; Tr. 238-39), the Secretary provided no corroborating documentation
or citation for such assertions, and Citation No. 8030697 was written because the entry was cut
too wide, not too narrow. Tr. 243. Accordingly, I give little weight to such evidence.
8

36 FMSHRC Page 1690

75.202(b), which states that “[n]o person shall work or travel under unsupported roof unless in
accordance with this subpart.”9 The alleged unlawful condition or practice states:
Visible footprints were observed where a miner had traveled behind
the barricade located on the 005 section, No.1 room entry, 04+00 and
between the Nos. 7 and 8 perimeter cut which was not supported.
The miner traveled through the bleeder in the previously cut set of
rooms to relieve them self . . . .
P. Ex. 6.
Preece designated the alleged violation as S&S after determining a reasonable likelihood
that standing or squatting under unsupported roof to relieve oneself would result in a crushing or
fatal injury from the hazard of a roof fall. Tr. 200-01; P. Ex. 6. Preece designated negligence as
moderate, but did not know whether a rank-and-file miner or a member of management was
responsible for the excrement. Tr. 216-17. When asked whether management should have been
aware of the alleged violation, Preece responded, “I would hope so, because management
controls the workforce on the section where people work and travel.” Id.
On cross examination, Respondent established that the entries in the old set of rooms
were bolted. Tr. 225, 234. Respondent also established that when Preece was a foreman,
members of his crew would take certain action unbeknownst to him. Tr. 228.
On redirect, however, Preece reaffirmed that there was no support on the corner of the
old perimeter mining area where the miner went to the bathroom. “There is no support at all
there.” Tr. 250-51.
Respondent’s compliance manager Grooms and safety representative Clarida testified
that all entries and crosscuts in the rooms were bolted. Tr. 259, 282. In addition, Clarida
contradicted Preece and testified that “the evidence of the person relieving themselves was under
supported roof.” Tr. 283. When asked by the undersigned why this was so, Clarida testified,
“well, you can look up and see there’s roof bolts in the roof. It’s supported.” Tr. 285.
Both Preece and Clarida confirm that they never traveled under unsupported roof. Tr.
197, 223, 282. Clarida, however, testified that when he observed the excrement, he stood only a
foot away from it. Tr. 285.

The subparts are not applicable as they include roof bolting and installation of roof
support using mining machines. See, e.g., 30 C.F.R. § 75.204 (roof bolting), 30 C.F.R. § 75.205
(installation of roof support using mining machines with integral roof bolters).
9

36 FMSHRC Page 1691

On rebuttal, Preece was shown his notes for the instant citation. Tr. 298-99; P. Ex. 7.
Page 8 of his notes state:
1) 1820
2) Visible footprints were observed in the number 1 entry
and through the barricade into the previous cut set of
rooms to relieve themself. The Miner traveled by the No.
7 & 8 perimeter cut that was unsupported.
3) 005/005 Section, No. 1 entry 4+00 bleeder
4) Foreman was not aware that a miner traveled through
the area
5) from the previous shift
6) 1 miner traveling through the area to relieve themself
7) Crushing injuries
8) unsupported (illegible) 7-8
9) Visible footprints
b.

Legal Analysis

In resolving the credibility conflict between Preece and Clarida as to whether the
excrement was under supported or unsupported roof, I credit Preece’s testimony in direct
response to questioning from the undersigned and find that someone went to the bathroom under
unsupported roof in fresh rock dust. Tr. 200, 250-51; P. Ex. 8; see also P. Ex. 5, at 24 (showing
that about ten feet in the corner of the entry of the perimeter mining area was unsupported).
I reverse Preece’s S&S determination. Preece’s testimony suggests that it was not a
regular practice for miners to relieve themselves under unsupported top. Rather, it was common
practice was to do so under supported top. Tr. 300-01. I find that the instant violation was a
brief aberration, and the hazard contributed to by the violation was not reasonably likely to result
in an injury given the limited exposure and the unlikelihood that a rock would fall during such
brief exposure. Cf., Ohio County Coal, 31 FMSHRC at 1489; Freedom Energy, 32 FMSHRC at
1829 (deleting S&S designation for a violation of section 75.202(a) “in light of the uncertainty of
a potentially injury-causing event and limited presence of miners in the subject area”).
Accordingly, I find that the third prong of the Mathies test was not established.
The Secretary argues that I should uphold Preece’s moderate negligence determination.
Although Preece could not determine if a miner or management was traveling under unsupported
roof, the Secretary argues that management either knew or should have known that workers were
traveling in unsupported areas. P. Br. 28. I disagree. Preece specifically testified that
management should have known of the violation because management controls the workforce on
the section where miners work and travel. Tr. 217. But Preece’s inspection notes indicate that
the “[f]oreman was not aware that a miner traveled through the area.” P. Ex. 7, at 3. As noted,
Preece could not determine whether the miner who relieved himself in the old set of rooms was
an agent of the operator. Tr. 216. Since the negligence of an hourly employee cannot be

36 FMSHRC Page 1692

imputed to the operator for purposes of a negligence designation,10 and the foreman was not
aware of the violation, which represented a brief aberration from regular practice, I find that the
Secretary has failed to establish any level of operator negligence.
The Secretary failed to justify a special assessment in this matter, and particularly failed
to establish that multiple citations were issued for the same violation, as Preece testified. Tr.
242. Guided by the regular assessment criteria set forth in § 100.3 and my findings above, I
assess a penalty of $162.
3.

Citation 8427546

The Secretary argues that there was a S&S violation of section 75.202(a) resulting from
high negligence because five pattern roof bolts and plates had separated from the roof causing
de-lamination and increasing the pressure on surrounding bolts to support more weight than
intended. P. Br. 29. Respondent does not challenge the violation, but challenges the gravity,
S&S, and high negligence findings and the appropriateness of the specially assessed $50,700
penalty. I affirm the violation, as written, and the specially assessed penalty of $50,700.
a.

The Alleged Violation

On June 24, 2011, inspector James Rusher11 was traveling the No. 2 room haulageway,
where steel-canopied haulers transport coal from face to feeder. P. Ex. 21; Tr. 314.
Respondent’s section supervisor and safety representative, Crit Stephenson, accompanied
Rusher. Tr. 370-71.
Rusher noticed five pattern roof bolts that had been dislodged by mobile equipment, three
in one place (tag No.0+65) and two more just a few feet away (tag No.1+95), which was causing
separation and de-lamination in the immediate roof. P. Ex. 21; P. Ex. 22, at 9; Tr. 314. Rusher
cited Respondent for a violation of § 75.202(a), which states, “[t]he roof, face and ribs of areas
where persons work or travel shall be supported or otherwise controlled to protect persons from
hazards related to falls of the roof, face or ribs and coal or rock bursts.” P. Ex. 21; Tr. 315.
All five plates were loose, which caused causing sagging or de-lamination of the roof in
those areas. Tr. 316-17, 320-22. Rusher explained that when the bolts and plates became loose,
layers of the roof began to separate, and support for the immediate roof was compromised by
strain on the surrounding bolts. Tr. 314-17, 318, 322. Although Stephenson testified that he did
See, e.g., Fort Scott Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1115-16 (July 1995),
(citing S. Ohio Coal Co., 4 FMSHRC 1459, 1464 (Aug. 1982)).
10

Rusher, now retired, inspected coal mines as an authorized representative for thirtythree years. He was assigned to MSHA’s Benton, Illinois field office. Tr. 308-09. Rusher had
twelve years of coal industry experience before joining MSHA. Tr. 309-10. Rusher had
inspected the WLPM since it opened. Tr. 312.
11

36 FMSHRC Page 1693

not notice any de-lamination and that Rusher did not point it out (Tr. 378-79), I credit Rusher’s
specific description of the de-lamination, which was obvious after rock dusting, and made the
roof unsafe because it put greater load on the surrounding bolts and would likely result in a roof
fall. Tr. 316-22; 344. Rusher’s testimony concerning the de-lamination is corroborated by
Rusher’s inspection notes. P. Ex. 22, at 9. Rusher further credibly testified that the face boss
had to travel through that particular intersection to check on the face for methane every twenty
minutes, and should have detected the condition. Tr. 334, 365.
I also agree with Rusher’s S&S determination because the violation contributed to a
specific roof-fall hazard that was reasonably likely to result in a serious or permanently disabling
injury to two miners, i.e., a coal haul operator and a supervisor making rounds or checking faces,
in the heavily traveled haulageway. P. Ex. 21; Tr. 322-330. Although Rusher noted that the
roof conditions were solid (P. Ex. 22, at 6) and Stephenson testified that the roof looked fine (Tr.
372, 381), I find that the number of dislodged roof bolts in the pattern and the de-lamination of
the roof in the immediate area contributed to a discrete roof fall hazard because during the course
of continued mining operations, the other surrounding bolts would not support the weight of the
roof. A roof fall across the compromised area would likely crush even those traveling in a
covered canopy. Furthermore, Respondent has a remarkable history of roof falls even with fully
grouted bolts. P. Ex. 61; Tr. 380-81. Accordingly, I affirm the gravity and S&S findings.
I also affirm Rusher’s high negligence determination because Respondent knew or should
have known about the violation, and there are no mitigating circumstances. As outlined above,
there were many roof falls and roof-control issues at WLPM. P. Exs. 28-30, 61. Respondent
was aware of MSHA’s warnings regarding increased enforcement, particularly in light of the
closeout conferences and enhanced emphasis on §§ 75.202(a) and (b) in the RTLB program.
There was constant traffic in the haulageway. Tr. 325, 334. I have found that rock dusting made
the separated bolts and plates and the concomitant de-lamination obvious. The face boss
traveled through the intersection every twenty minutes and should have detected and corrected
the condition. In these circumstances, and in the absence of any mitigating circumstances, I find
that the violative condition resulted from Respondent’s high negligence.
The Secretary justified a special assessment in this matter, particularly given
Respondent’s history concerning roof control violations, the Rules to Live By notice, and
Rusher’s testimony that this was an active haulageway, with five roof bolts dislodged and
extensive de-lamination. Tr. 242-44, 246, 360. Guided by the criteria set forth in § 100.3 and
the Special Assessment General Procedures as set applied in the Special Assessment Narrative
Form (R. Ex. 58), I assess a penalty of $50,700.

36 FMSHRC Page 1694

B.

Accumulations of Combustible Material Order No. 8030700 and Citation Nos.
8428798, 8428776, and 8436403
1.

Order No. 8030700

The Secretary argues that Respondent violated section 75.400 because accumulations of
combustible material were amassed in two different crosscuts, and although the non-S&S
violation was unlikely to lead to a lost workdays or restricted duty injury, it was an
unwarrantable failure resulting from high negligence. Respondent specifically challenges the
unwarrantable failure and high negligence findings and the specially assessed $8,400 proposed
penalty. As explained below, I find the non-S&S violation, reduce Respondent’s negligence to
moderate, reverse the unwarrantable failure finding, and assess a penalty of $500.
a.

The Alleged Violation

On August 1, 2010, when inspector Preece and miner/union representative Rodney
Shires were exiting the mine in a diesel vehicle driven by Respondent’s mine manager, Roby
Podoriscki, Preece asked, “[w]hat is that in the crosscut?” Tr. 68. Preece testified that he
received a response that it was roadway gob or something to that effect, but he did not identify
who gave that response. Tr. 68-69. Rodney Shires did not testify.12 Given the noise of the
diesel engine and Podoriscki’s denial that he had such a conversation or heard any such
conversation between Preece and Shires, the Secretary failed to establish that Podoriscki knew
about the conditions on August 1, 2010. See Tr. 88-89, 100-104.
On August 2, 2010, inspector Preece, accompanied by Respondent’s safety representative
Shane Kendall and miner/union representative Rodney Shires, rode to crosscut 107 in the 5D
travel road where Preece had noticed accumulations the prior day while exiting the mine. Tr. 3337, 60, 116-17, 119. Preece issued 104(d)(2) Order No. 8030700 for accumulations of
combustible material. The alleged accumulations consisted of a mix of combustible and noncombustible materials, consisting of wood, coal mixed with mud or stone, roadway material such
as fire clay, gob of rock and mud, crushed up oil cans that still had oil in them, roof bolts, glue
and plates, and other refuse, such as rock dust bags. The materials were piled up in two
locations about 300 feet apart in the 107 and 109 crosscuts on the 5D travel road. The alleged
accumulations in the 107 and 109 crosscuts where piled four feet high and covered an area of
10x20 feet and 8x15 feet, respectively. Tr. 35-37, 47, 78, 122-125; P. Ex. 1-3; R. Exs. 81(c)-(f).
The Order states:
Accumulation of combustible materials were allowed to accumulate
in the No. 6 to No. 5 entry crosscut, 5 “D” Travel road. Coal dust,
I note that Roger “Blaine” Shires, section foreman, did testify at the hearing as to the
facts pertaining to Citation No. 8428378, discussed below. The two Shires should not be
confused as Rodney Shires was a rank-and-file miner.
12

36 FMSHRC Page 1695

including float coal dust deposited on rock-dusted surfaces, loose
coal, and other combustible materials (wood and paper) were not
being cleaned up and permitted to accumulate. The following
conditions existed:
1.) 107 crosscut, 80+70, Combustible material mixed with roadway
material, gob and coal from sloughage of the rib existed next to the
stopping measuring 10 feet in length, 20 feet in width and 4 feet in
height.
2.) 109 crosscut, Combustible material mixed with roadway material,
gob and coal from sloughage of the rib existed next to the stopping
measuring 8 feet in length, 15 feet in width and 4 feet in height.
Upon interviews with Mine Management, management stated that the
condition was obvious and extensive, has existed for over 24 hours
and has a history of accumulation violations (299 in the previous 24
months) and Mine management was in the area of the accumulations
on all shifts.
P. Ex. 1. Preece testified that his concern was that the accumulations had not been rock dusted
properly, although there was some rock dust underneath the piles. Tr. 46-47.
Preece designated the alleged violation as non-S&S after determining that the hazard of
fire or propagation of an explosion was unlikely because of the location of the material in the
crosscuts and the fact that no vehicles were running over the coal present in the piles, the coal
was not raised in suspension, and other areas of the mine were adequately rock dusted. P. Ex.
1; Tr. 42, 45-46, 89. If a fire or explosion were to occur, however, Preece determined that the
likely injury would be lost workdays or restricted duty to one person due to smoke inhalation.
P. Ex. 1; Tr. 46.
Preece determined that Respondent’s negligence was high because the condition had
existed for at least three shifts, and prior to Preece’s inspection the previous day, Rodney Shires
had confirmed this. Tr. 43-45, 60-61, 67; P. Ex. 2, at 3. Preece also testified that management
must have known of the conditions because “someone gave orders for someone to clean up
these roadways and put this material in certain locations.” Tr. 43.
Preece further determined that the alleged violation was an unwarrantable failure
because management should have known that the condition existed, it was present for more than
three shifts, it was obvious and extensive, and it was not rock dusted to ensure inertness. Tr.
66-67.
Respondent argues that the condition was not extensive or obvious, existed for an
indeterminate period of time, and did not pose a high degree of danger to miner safety.

36 FMSHRC Page 1696

Respondent further argues that the operator had no specific knowledge of the alleged violation
and had not been placed on notice that greater efforts for compliance with the standard were
necessary.
To abate the conditions, Preece required the material to be rock dusted, but not removed
from the mine. Tr. 71, 76-77. After rock dusting, Respondent’s third-shift safety manager,
Andy Murphy, took a zip-lock bag sample of each pile of material by scraping off the rock dust
and reaching six to eight inches into each pile to obtain the samples. Tr. 143-45. Preece did not
observe the sampling. Tr. 72.
Murphy testified that in each sample, he obtained gob or real soft material, which likely
originated from the travel road. Tr. 146, 150. Each sample was labeled and given to
Respondent’s compliance manager, Todd Grounds, who delivered them that same day to
Standard Lab for analysis. Tr. 150, 157.
The sample taken from crosscut 107 was determined to be 66.12% incombustible. The
sample taken from crosscut 109 was determined to be 72.71% incombustible. Tr. 157-58; R.
Ex. 82. During this time, both samples met section 75.403’s incombustibility requirement for a
travel road, which was 65%, but has since been increased to 80%. Tr. 158-59.
The Secretary argues that combustibility tests are only performed in section 75.403
violations and are irrelevant to section 75.400 violations. P. Br. 37. Also, even if relevant, the
Secretary argues that Respondent’s tests would not have passed under today’s standards. P. Br.
37-38; (citing Tr. 157). Finally, the Secretary notes that the samples were not band samples,
and they were not taken or handled by anyone with training in sampling for incombustibility
determinations. P. Br. 38 (citing Tr. 163).
Mine manager Roby Podoriscki testified that the roadway bottoms primarily consist of
fireclay, a soft noncombustible substance. Tr. 108. He further testified that the practice of
scooping up gob from the travel roads and pushing it into the crosscuts was common practice at
WLPM and at four or five other Illinois mines where he had worked. Further, Podoriscki had
never received, nor was he aware of, any citations for this practice. Tr. 107-08. Similarly, prior
to the issuance of the Order, MSHA had never warned or cited WLPM for this practice. Tr.
107.
b.

Legal Analysis

To the extent that Respondent’s brief can be read as challenging the violation, I affirm
inspector Preece’s finding of a non-S&S violation. Section 75.400 provides that “[c]oal dust,
including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and not be permitted to accumulate in active workings, or on
diesel-powered and electric equipment therein.” The record establishes that loose coal, crushed
oil cans, wood and other combustible material, mixed with non-combustible material were

36 FMSHRC Page 1697

allowed to accumulate in two large piles about 4 feet high, 20 feet wide, 10-15 feet long, and
about 300 feet apart in the 107 and 109 crosscuts on the 5D travel road for over three shifts.
The Commission has held that a “construction of the standard that . . . allows
accumulations of loose coal mixed with noncombustible materials, defeats Congress’ intent to
remove fuel sources from mines and permits potentially dangerous conditions to exist.” Black
Diamond Coal Mining Co., 7 FMSHRC 1117, 1121 (Aug. 1985); but see Lion Mining Co., 19
FMSHRC 651, 656 (Mar. 1977) (ALJ) (vacating 104(d) order alleging that gob material was an
accumulation and concluding that section 75.403 is the appropriate standard to address the
potential hazards associated with combustible material in gob). In this case, the Secretary has
interpreted the standard consistent with Black Diamond, supra, and I give deference to the
Secretary’s reasonable interpretation consistent with Commission precedent. Accordingly, I
affirm the non-S&S violation.
I reduce Respondent’s negligence to moderate. The Respondent should have known of
the violation, but there are mitigating circumstances for Respondent’s failure to clean up the
accumulations. Irrespective of mine manager Podoriscki’s denial that he knew about the
conditions until after issuance of the Order (Tr. 104) and Preece’s speculation that management
must have directed the workforce to push the materials in the crosscuts (Tr. 72), I credit and rely
on Preece’s testimony that examinations on the roadway are done by agents of the Respondent
three times daily. Tr. 70. Thus, Respondent’s examiner agents should have known about the
accumulations.
Respondent, however, presented credible evidence of mitigating circumstances. The
accumulations were significantly composed of gob laced with debris and were pushed deep into
crosscuts to clear the travel roads. Respondent presented evidence that this was a common
practice at Willow Lake and in the Illinois Basin and Respondent had not been cited by MSHA
before for this practice. Further, both of Respondent’s samples exceeded incombustibility
requirements for when rock dusting was required. Moreover, MSHA required rock dusting to
abate the violation. Accordingly, I reduce Respondent’s negligence to moderate.
I reverse the unwarrantable failure designation. I find, contrary to Respondent’s
arguments, that the accumulations were obvious, existed for over three shifts, and should have
been detected for clean up by Respondent’s examiners even though the conditions were about 70
feet within the crosscuts. See R. Br. 13. In fact, Preece noticed the accumulations in passing
from the 5D travel road the day before the Order was issued and specifically inquired about
them. Tr. 68, 76. The fact that the accumulations of combustible and non-combustible material
were unlikely to ignite does not exempt an examiner from documenting them as potential
hazards in examination reports.
While Respondent concedes that the piles were significant in size, it argues that the
amount of combustible material was not extensive since about two-thirds of each pile was
composed of non-combustible material. R. Br 15 (citing Tr. 157-58; see also R. Ex. 82). I find
some merit in this argument since the standard requires cleanup of combustible material.

36 FMSHRC Page 1698

Moreover, abatement was accomplished quickly by adding additional rock-dust. Preece did not
require the accumulations to be removed from the mine. Tr. 76-77. On the other hand, there
were two large piles of material with some combustible content within 300 feet of each other. In
these circumstances, I find the extensiveness factor to be neutral in the unwarrantable failure
analysis.
The condition did not pose a high degree of danger to miner safety. The Order was
designated non-S&S and involved piles of material that were largely incombustible. As noted,
abatement was accomplished by adding additional rock-dust, but the accumulations were not
removed.
Although Respondent was clearly placed on notice of a past history of section 75.400
violations, it was not placed on notice that greater efforts were necessary to comply with its
apparent practice of pushing large gob piles into a crosscut to clear travel roads. Tr. 83. The
Secretary provided no evidence to rebut the testimony of Respondent’s witnesses Podoriscki and
Kendall that the practice was employed at Willow Lake and other mines in the Illinois Basin
where they had worked, and that MSHA did not notify Respondent that the practice was
prohibited. In fact, MSHA’s sanctioned abatement method of additional rock-dusting rather than
removal adds confusion as to what should be done with such accumulations. I also note as a
practical matter, that when clearing travel roads of debris, it may be difficult to immediately
remove non-S&S accumulations such as those at issue from the mine. Under these
circumstances, I find that Respondent was not placed on notice that greater efforts were
necessary to comply with the standard as applied in this case. Rather, in the absence of any
evidence that the past citations or discussions with MSHA involved conditions that bore any
resemblance to the conditions cited in Order No. 8030700, I decline to find that Big Ridge was
on notice that greater efforts toward compliance were necessary. See, e.g., Cumberland Coal
Res. LP, 31 FMSHRC 137,157 (Jan. 2009) (ALJ) (finding in the section 75.400 context that “to
establish that [the operator] had been put on notice that additional compliance efforts were
needed, the Secretary was required to show more than a history of prior citations for violations
of the broad standard”).
In sum, I find that the accumulations were obvious, extant for at least three shifts, and
Respondent should have known that they existed. On the other hand, the accumulations of
combustible material were not particularly extensive since they comprised only about one-third
of the piles and were quickly abated through rock dusting, they did not present a high degree of
danger, and Respondent was not placed on notice that greater efforts were necessary to comply
with its practice of pushing large piles of gob mixed with lesser combustible material into
crosscuts to clear travel roads. Thus, while the issue is close, on balance I find no aggravated
conduct or unwarrantable failure here.
Since I have reduced Respondent’s negligence to moderate and reversed the
unwarrantable failure finding, which was the primary basis for Preece’s special assessment
recommendation (Tr. 72-73), I decline to be guided by the Secretary’s special assessment

36 FMSHRC Page 1699

guidelines. Consistent with my findings above and section 110(i) criteria, I find that a penalty of
$500 is appropriate for the violation.
2.

Citation No. 8428798

The Secretary argues that Respondent violated section 75.400 because the transformer
“5D” belt line had accumulations of float coal dust on previously rock dusted areas. The
Secretary claims that the violation was S&S because it was reasonably likely to lead to a lost
workdays or restricted duty injury to one person. The Secretary also claims that the violation
was the result of high negligence because the cited condition was recorded in the on-shift
examination records and Respondent provided no mitigating information to the inspector about
why the condition was allowed to continue unabated.
Respondent argues that the citation should be vacated because no violation of the cited
standard occurred; that if a violation is found, the S&S and high negligence designations are
inappropriate; and that the regularly assessed proposed penalty of $13,268 is excessive.
a.

The Alleged Violation

During the day shift on October 13, 2011 at 9:20 a.m., MSHA inspector Anthony
Fazzolare issued 104(a) Citation No. 8428798.13 It alleges a violation of 30 C.F.R. § 75.400, as
follows:
The transformer for the “5D” Belt Line had float coal dust deposited
on previously rock dusted areas. The float coal dust was paper-thin
to approximately 1/8 inch thick, black in color and from rib to rib and
on the top of the transformer.
This condition was listed in the on-shift examiners report from the
previous shift’s examination.
This is the 267th violation of this standard at this mine since
10/20/2009.
P. Ex. 40. The Citation was designated S&S, reasonably likely to result in a lost workdays or
restricted duty to one person, and was the result of high negligence. Id. Fazzolare’s photographs

Fazzolare has inspected underground coal mines for more than thirteen years and began
inspecting WLPM in 2008. Tr. 721-22. Before that he worked for Kerr-McGee Coal Corp., in
Galatia, Illinois as a laborer, construction worker, roof bolter, and/or continuous miner operator
from 1984-1998. He is also an Illinois certified examiner and mine manager, and has shop fire
papers. Tr. 722.
13

36 FMSHRC Page 1700

depicted accumulations of coal on the transformer, on a permissible14 electrical light, and on the
floor as indicated by visible footprints. Tr. 812-16, 832, 898; P. Ex. 41.
The accumulations were in an active working area where miners were required to work
and travel. Tr. 818-19, 890. In fact, the on-shift examiner’s report from the previous shift listed
the condition. P. Ex. 40.
Fazzolare’s testimony about the condition was consistent with the citation, as written.
Fazzolare described the float coal dust as paper thin to approximately one-eighth of an inch
thick, black in color, from rib to rib approximately 20 feet in width, and present on the top of the
transformer. Tr. 806, 808; P. Ex. 40.15 Fazzolare described the condition as dangerous because
float coal dust is highly combustible, can ignite at 300 degrees Fahrenheit, and was permitted to
accumulate from rib to rib, and on top of the permissible transformer (power center). Tr. 806-08,
817, 869. No methane was detected in the area. Tr. 835.
Bishop testified that he did not see Fazzolare check inside the transformer, although
Bishop looked inside and did not see any material. Tr. 857-58. Bishop also testified that the
west side of the transformer was damp. Tr. 865.
The transformer was in the same crosscut off the 5D travelway where the accumulations
were found on the floor from rib to rib. Tr. 811, 828, 852. The transformer receives power and
distributes it to run the 5C belt. Tr. 806, 812. Fazzolare testified that as the transformer receives
power, it generates heat, and the float coal dust on top of the transformer would act as a thermal

At hearing, inspector Fazzolare referred to several pieces of electronic equipment as
“non-permissible.” The inspector, however, uses the term in a confusing fashion. When
Fazzolare called equipment “non-permissible,” he was referring to the permissibility standards
for electrical equipment used at the face, not to the permissibility standards applicable to the rest
of the mine. Tr. 807-808. The permissibility requirements at the face are more stringent as they
are intended to prevent or contain the ignition of an explosive air-methane mixture. See Knox
Creek Coal Corp., 35 FMSHRC ___, slip op at 4, No. VA 2010-81-R (May 28, 2014). The
electrical equipment addressed in this case was not located at the face and therefore was not
required to include enhanced design requirements. See Tr. 807-808. There is no question that
the electrical equipment in question met MSHA design requirements to reduce the likelihood of
fire and was permissible for the location in which it was used. Id.; see also 30 C.F.R. § 75.2.
14

Safety compliance supervisor, Daniel Bishop, testified that all he saw was gray
material on the floor. He did not see any float coal dust on top of the transformer. I credit
Fazzalore that the float coal dust was paper-thin, black in color, ran from rib to rib, and was
present on the top of the transformer. Fazzolare took photographs to document the condition. P.
Ex. 41.
15

36 FMSHRC Page 1701

blanket trapping heat inside. Tr. 809.16 Fazzolare testified that the cat heads going into the
power center were another potential heat or ignition source. Tr. 818.
Fazzolare was concerned about a fire because float coal dust is highly volatile and does
not require much temperature to ignite. Tr. 816. Fazzolare further testified that since the float
coal dust was paper thin and sat on top of the rock dust, the rock dust would do nothing to
extinguish a fire. Rather, the float coal dust would burn off and add fuel to a fire. Tr. 808.
Fazzolare determined that the three elements necessary for a fire were present: fuel (float coal
dust); oxygen (in the air throughout the mine), and an ignition source (permissible power center).
Tr. 817. Fazzolare was concerned that the power center could have a problem at any time under
continued mining operations. Tr. 844. Fazzolare determined that in the event of a fire, one
person in the area, an examiner or maintenance person, was reasonably likely to suffer a lost
workday or restricted duty injury from smoke inhalation. Tr. 818-19.
Respondent’s assistant shift mine manager, Charles Lane Hendricks, testified that during
the pre-shift examination on the midnight shift, the examiner reported that the transformer for the
5D drive needed dusting because it was black. Tr. 878; R. Ex. 92. The written report was
reviewed and noted by Hendricks about 6:15 a.m., prior to the start of the 7 a.m. day shift. Tr.
877-879. Hendricks discussed the condition with other shift managers and assigned day-shift
belt shoveler, Harley Partridge, to address the condition. Tr. 878-79. Hendricks credibly
testified that he instructed Partridge to adjust his work duties and make the condition his first
stop of the day, thus giving the matter priority. Tr. 879.
Hendricks testified that Partridge typically would catch the first available ride into the
mine after shift change, and get off about thirty minutes later at his golf cart located on one of
the main north belts, which he used to travel to different belt drive locations. Tr. 879. Hendricks
recalled that on the day in question (October 13), Partridge and others did not get a ride into the
mine until about 8 a.m., which meant that Partridge would not have reached his golf cart until
about 8:30 a..m., and would not have reached the location of the 5D transformer until about 8:55
a.m., i.e., about twenty-five minutes before Fazzolare wrote the citation. Tr. 880-81. Hendricks
further testified that about 9 a.m., he received a call from another mine manager, Ronnie Hughes,
informing him that Partridge’s golf cart had malfunctioned, and that the inspector had found a
problem at the transformer. Hughes asked Hendricks, who was in another area of the mine, to
get down there. Tr. 882-83.17
Fazzolare testified that Respondent provided no mitigating information as to why the
condition was allowed to continue. Tr. 823-24. By contrast, Hendricks testified that when he
arrived at the transformer, Fazzolare explained why he was writing the citation. In response to a
leading question, “[d]id you tell him what you told us, that you had somebody on the way,”
Hendricks testified, “Yes, I did.” Hendricks did not recall any response from Fazzolare. Tr.
Respondent’s mid-west safety director, Chad Barras, testified that the heat generated
on the surface of the transformer was somewhere between 100 to 180 degrees. Tr. 896.
16

17

Neither Hughes nor Partridge were called to corroborate this hearsay.

36 FMSHRC Page 1702

883. Safety compliance supervisor, Daniel Bishop, testified that Hendricks told Fazzolare that he
had sent an employee to address the problem, but his ride went dead and he had not made it there
yet. Tr. 865. On cross examination, Fazzolare admitted that he vaguely recalled the mine
manager telling him that somebody was on the way, but his ride had broken down. Tr. 841.
Accordingly, I find that Hendricks did offer evidence of mitigation, i.e., that Partridge had been
dispatched to correct the accumulation problem, but his ride had broken down and Partridge had
not arrived yet.
Hendricks opined that the condition would have been addressed about twenty minutes
after Fazzolare’s arrival at the transformer. Tr. 883-84. The Citation was abated in about ten
minutes when rock dust was spread around the transformer on the floor. Tr. 859, 890. Bishop
testified that Fazzolare did not require any cleaning of the top of the transformer or the nearby
light to abate the Citation. Tr. 858-59, 871.
b.

Legal Analysis

I find a violation of section 75.400. The credited evidence establishes that Respondent
permitted accumulations of float coal dust from rib to rib in an active working area and on the
transformer or power center, a piece of electric equipment. In fact, Respondent’s examiner
reported that the transformer for the 5D drive needed dusting because it was black. Tr. 878; R.
Ex. 92.
I further find that the violation is not S&S. Fazzolare credibly testified that although coal
dust has a relatively lower heat threshold required for combustion, the coal dust in the Illinois
coal basin must be heated to 300 degree before it will ignite. Tr. 807; see also Tr. 900.
Fazzolare was primarily concerned that the electrical transformer might provide an ignition
source for the coal dust.18 Fazzolare, however, did not remember if the transformer was hot
during the inspection and did not offer any testimony as to the potential heat the transformer
could generate. Tr. 831. Respondent, on the other hand, adduced uncontradicted testimony
from Barras that the transformer was between 100-180 degrees, but was not hot enough to burn a
miner if touched. Tr. 896. Furthermore, Bishop credibly testified that the transformers where
never too hot to handle comfortably during the hundreds of times that he had accessed them. Tr.
856-57.

It is unclear from Fazzolare’s testimony how the overhead light or cat heads could act
as ignition sources. No coal dust was observed on the cat heads and the overhead light would
not be susceptible to the “thermal blanket effect” described by Fazzolare. Further, it is unlikely
that the fluorescent bulb in the overhead light would be able to reach a temperature capable of
igniting the coal dust. Tr. 898; see generally Clete R. Stephan, MSHA, Coal Dust Explosion
Hazards, http://www.msha.gov/S&HINFO/TECHRPT/P&T/COALDUST.pdf (top of a 1500watt incandescent bulb can exceed 300 degrees Celsius).
18

36 FMSHRC Page 1703

I am not convinced by Fazzolare’s assertion that the paper thin layer of coal dust would
have provided sufficient insulation to cause the transformer’s temperature to rise over the 100
degrees necessary to cause the coal dust to ignite.19 There is no question that there can be a
danger of electrical equipment overheating and rising to a temperature capable of igniting coal if
there is a significant amount of densely packed coal enveloping electric equipment. See Enlow
Fork Mining Co., 19 FMSHRC 5, 8-11 (Jan. 1997) (remanding S&S analysis where inspector
noted up to 2 ½ feet of coal dust, hydraulic oil, and loose coal packed in and around a gear case).
Commission ALJs, however, have not been inclined to find that an ignition source exists when
only a relatively small layer of combustible material covers electrical equipment. Pittsburg &
Midway Coal Mining Co., 16 FMSHRC 574, 578-79 (Mar. 1994) (ALJ); Cam Mining, LLC, 34
FMSHRC 2965, 2972-75 (Nov. 2012) (ALJ) (finding that an ignition based upon the heat
generated by a transformer box and the electrical connections therein was not reasonably likely).
In the case at hand, the dust on the outside of the transformer enclosure was only paper
thin and there is insufficient evidence on this record to establish that enough coal dust would
accumulate under continued mining operations to create the “thermal blanket effect” described
by Fazzolare. No dust was observed in the enclosure where it could be ignited by sparks or
arcing that might occur assuming malfunction during continued mining operations. Tr. 831; see
also Knox Creek Coal Corp., 35 FMSHRC ___, slip op at 7, No VA 2010-81-R (May 28, 2014)
(judges should assume common malfunctions of electric equipment in determining whether
electronic equipment is an ignition source).
Based on the foregoing, I find that under continued normal mining operations, it was
unlikely that a fire at the transformer would result in a lost workday or restricted duty injury from
smoke inhalation to a miner traveling in the active working area. Tr. 818-19. The Secretary has
failed to show a confluence of factors such as methane or ignition sources as required under
Commission precedent in Texasgulf, 10 FMSHRC at 500-3. Accordingly, the S&S designation is
removed.
I reduce Respondent’s negligence from high to moderate. It is undisputed that the
Respondent knew about the accumulation problem. Although Fazzolare testified that
Respondent provided no mitigating information as to why the condition was allowed to continue,
I have found that Hendricks did offer evidence of mitigation, i.e., that Partridge had been
dispatched to correct the accumulation problem, but his ride broke down and he had not arrived
yet. Hendrick’s testimony was corroborated by Bishop’s testimony and Fazzolare’s vague
recollection. Although the Secretary argues this was not a mitigating circumstance because the
citation was issued at least two and a half hours after the on-shift examiner recorded the
hazardous condition, I credit Hendrick’s testimony that he gave the matter priority that morning,
but Partridge’s golf cart broke down. The Secretary offered no evidence to the contrary, and did

Even Fazzolare conceded on cross that the coal dust would have to build up before it
would act like a thermal blanket trapping heat in the transformer enclosure. Tr. 831.
19

36 FMSHRC Page 1704

not subpoena Partridge to testify. In these circumstances, I find sufficient evidence of mitigation
to reduce Respondent’s negligence from high to moderate.
Guided by the regular assessment criteria set forth in § 100.3 as applied to my findings
above, I assess a penalty of $807.
3.

Citation No. 8428776

The Secretary argues that Respondent violated section 75.400 because there were
accumulations of float coal dust under the cable reel of the Fletcher Roof Bolter Co. No. 425,
located in the #1 Unit on the right side. The Secretary claims that the violation was S&S
because it was reasonably likely to lead to a lost workdays or restricted duty injury to two
persons, and was the result of high negligence because Respondent should have known about the
condition and offered no mitigating circumstances.
Respondent argues that the S&S and high negligence designations are inappropriate and
that the regularly assessed proposed penalty of $14,373 is excessive.
a.

The Alleged Violation

On September 3, 2011, MSHA inspector Fazzolare, accompanied by Respondent’s
representative Mike Cummins, inspected the Fletcher Roof Bolter No. 425. Tr. 966. There
were no defects observed with the cable, or any other component of the permissible roof bolter
(pinner), which might act as a potential ignition source. Tr. 939, 943, 950, 966-67.
Fazzalore issued 104(a) Citation No. 8428776, which alleged a violation of 30 C.F.R. §
75.400, as follows:
There were accumulations of coal, oil and float coal dust under the
cable reel of the Fletcher Roof Bolter Co. No. 425, located in the #1
Unit on the right side.
These accumulations were black in color and ranged in depth from 1
inch to 1½ inches deep and the cable reel had been rolling in
accumulations.
P. Ex. 32; Tr. 956. The citation was designated S&S, reasonably likely to result in a lost
workdays or restricted duty injury to two persons, and the result of high negligence. P. Ex. 32.
Consistent with the citation, Fazzolare testified that he observed accumulations of coal,
oil and float coal dust under the cable reel of the Fletcher roof bolter. Tr. 924. Cummins
testified that there was no float coal dust present. Rather, there was moist material comprised of
fire clay, coal fines, and rock dust from the mine floor. Tr. 965.

36 FMSHRC Page 1705

The cable reel is insulated to isolate the possibility of the flow of electrical current and it
carries about 350 feet of 480-volt energized cable, which powers the roof bolting machine. Tr.
924-25, 960-62, 973. The cable reel retracts or releases cable as the bolter moves. Tr. 925. The
reel is guarded in front and covered on top, making observation or photographing of the inside of
the reel compartment difficult. Tr. 964-65; R. Ex. 87(a). To reach into the compartment, a
miner would have to reach between two guides that aid the retraction and extension of the cable.
Tr. 977.
At one point, Fazzolare testified that the cable reel served as an ignition source. Tr. 927,
929; P. Ex. 32. Although the bolter is permissible equipment, this fact did not factor into
Fazzolare’s assessment because of the location of the accumulations underneath the cable reel.
Tr. 929. Fazzolare testified that once the cable reel was full, the cable would be rolling in the
accumulations. Tr. 926.
Upon subsequent questioning from the undersigned, Fazzolare testified, without further
explanation, that he saw evidence that the cable reel had been rolling in accumulations. Tr. 932.
I discredit this testimony because, as further explained below, Fazzolare walked and examined
the full length of the cable when it was extended off the reel (Tr. 950), and the power was not
energized on the machine to observe the retraction because the unit was idle. Tr. 934, 952, 954.
Rather, I find that Fazzolare was speculating as to what would occur during the retraction
process.
Fazzolare then testified that the roof bolter, the electrical motors on the roof bolter, and
the cable, all generate heat. Tr. 932. Fazzolare testified that he had no knowledge of the cable
being shielded. Tr. 939, 967. Fazzolare examined the full length of the cable and found no
defects. Tr. 942.
Fazzolare testified that the cable reel would be full of energized cable and there could be
a pinhole in that electrical cable that would be hard to see or detect and create an ignition source.
Fazzolare also testified that he got shocked because of a pinhole when he was a roof bolter on a
different type of machine, but the cable on that machine was not shielded. Tr. 930-31, 947, 95051.
The specific hazard that Fazzolare was concerned with was smoke inhalation by the two
roof bolters in the event of a fire. Tr. 930-31. He testified that if the cable reel was full during
roof bolting, and there was a bad spot in the cable, a pinhole would ignite the float coal dust or
coal, and the miners would be exposed to smoke inhalation from the fire, resulting in lost work
days or restricted duty. Tr. 932-33. Fazzolare further testified that splices in cable are common
because the cable or insulation gets torn, exposing the inner leads, and the cable gets run over,
requiring spicing. Tr. 949.
The record establishes that underneath the cable reel and between its side walls there are
clean-out holes that permit water and other material to exit the compartment when it is washed

36 FMSHRC Page 1706

out, or enter the compartment when the rear of the articulated bolter pivots up and down to
follow the contours of the mine floor during tramming. Tr. 961-63, 965-66; R. Ex. 88(a).
Cummins, a former 11-year roof bolter, testified that a clean reel compartment can become dirty
in minutes from mine floor material entering the compartment through the drain holes if the
bolter is operated with the rear of the machine articulated on the ground. Tr. 959, 965, 984.
Cummins further testified that the retracting cable would not rub in the accumulations
because a tape ball prevents overloading beyond the sides of the cable reel. Tr. 972. He further
testified that the reel moves at such a slow rate of speed during the tramming process – about 35
feet of cable could be retracted in a minute – that frictional heat would not be generated. Tr.
972-73.
Fazzolare testified that the accumulations under the cable reel were in active workings
because “[t]his is a producing unit.” Tr. 928. Fazzolare further explained that at some
unspecified time after he issued the Citation, he revisited the unit and it was running coal. Tr.
952-53. Fazzolare confirmed that the accumulations were black in color, indicating that they had
not been mixed with rock dust to lower combustibility. Tr. 928. The accumulations extended
about one to 1.5 inches under the cable reel and about two feet wide. Tr. 925-26. Fazzolare
testified that once the cable reel was full of cable, the cable would be rolling in the
accumulations creating a frictional heat source that could ignite the accumulations. Tr. 926-27.
In addition, Fazzolare testified that he was concerned about the high temperature oil which was
present and also combustible. Tr. 928.
Fazzolare testified that the production unit was idle at the time of his inspection and had
been idle for a week. Tr. 934; 952. Fazzolare conceded that under normal circumstances, there
would be no power on the roof bolter when the unit was not operating. Tr. 954. Cummins
confirmed this. Tr. 981. The Secretary failed to establish that there was power on the cable.
Even when the unit was idle, the cable reel and cable were subject to a thorough
permissibility examination on a weekly basis, including cleaning and washing out of
accumulations, if necessary. Tr. 954, 968-69, 979. Such cleaning also occurred, as needed. Tr.
980-81. The last weekly examination was performed on August 28, 2011, six days prior to the
citation and within the weekly period. Tr. 968; R. Ex. 90.
b.

Legal Analysis

I find a violation of section 75.400. I credit Fazzolare’s testimony about the nature of the
accumulations in lieu of Cummins’ testimony and find that accumulations of coal, oil and float
coal dust were present under the cable reel of the Fletcher roof bolter. Tr. 924. Although
Cummins testified that there was no float coal dust present and the material was moist, I
discredit this testimony, particularly since the pinner had not been washed, at least since the last
examination almost a week earlier.

36 FMSHRC Page 1707

I further find that the accumulation violation under the cable reel of the roof bolter was in
an active working, even though the production unit was idle for about a week, because miners
continued to work or travel in the unit for maintenance and inspection purposes. Cf.
Consolidation Coal Co., 20 FMSHRC at 348-49.
On the other hand, I find that the violation was not S&S under the third prong of the
Mathies test because the violation did not contribute to a hazard that was reasonably likely to
result in a mine fire. When evaluating an S&S designation related to the reasonable likelihood
of a fire, ignition, or explosion, the Commission examines the “confluence of factors” present
based on the particular facts surrounding the violation. Amax Coal, 19 FMSHRC at 848 (citing
Texasgulf, 10 FMSHRC at 501). These factors include the extent of accumulations and the
presence of possible ignition sources, the presence of methane, and the type of equipment in the
area. Maple Creek, 22 FMSHRC at 755 (citing Enlow Fork, 19 FMSHRC at 9).
The unit was idle at the time of the inspection and no power was energizing the roof
bolter. Tr. 952. Therefore, an ignition would not have occurred. Even when production and
power was restored during continued mining operations, no ignition source was established that
was reasonably likely to result in a mine fire. The bolter was maintained in permissible
condition.20 Although Fazzolare testified that he “could have missed” a pinhole defect in the
cable, he found no defects with the insulated cable. In fact, Fazzolare performed a full
inspection of the pinner and its cable and issued no citations. Moreover, the electric shock that
Fazzolare experienced through a pinhole when he was a bolter occurred on a different type of
bolting machine that lacked a shielded cable. Finally, Fazzolare provided an insufficient
evidentiary foundation for his summary conclusion that if the cable reel was full during bolting,
a pinhole would ignite the float coal dust or coal and the miners would be exposed to smoke
inhalation from the fire, resulting in lost work days or restricted duty.
Similarly, I reject the argument that the cable reel would likely serve as a frictional heat
source. I have discredited Fazzolare’s testimony that he observed the cable rolling in the
accumulations and found that this was mere speculation as to what he thought would occur when
the cable was recoiled during the retraction process. By contrast, I am more persuaded by
Cummins’ testimony that the retracting the cable would not rub in the accumulations because a
tape ball was designed to prevent overloading beyond the sides of the cable reel. Furthermore,
the Secretary relies on little more than Fazzolare’s conclusory belief that the bolter could
produce heat sufficient to produce an ignition. That belief is unsupported by fact on this record.
Rather, I credit Cummins’ testimony that the slow movement of the cable back onto the reel at
about 35 feet per minute would generate insufficient frictional heat to start a fire.
Although Fazzolare testified that he was concerned about a fire and not an explosion, I
agree with the Respondent that the non-defective permissible equipment was unlikely to
propagate an explosion because no exposed energized ignition sources were present, no sparks
were capable of emission, and the jacket of the shielded cable was made of quarter-inch-thick
pliable rubber. Tr. 967.
20

36 FMSHRC Page 1708

In sum, based on the particular facts surrounding this violation, the Secretary has failed to
prove that an injury-causing event was reasonably likely to occur. Accordingly, I find that the
violation was not S&S.
I reduce Respondent’s negligence from high to moderate. Although Fazzolare testified
that there were no mitigating factors provided to him when he wrote the citation, Respondent
established some at trial. The design of the roof bolter and the location of the accumulations
made detection difficult. Although Fazzolare was led on cross examination to testify that the
violation was obvious, I discredit this testimony because the testimony from Cummins and the
photographs in evidence establish that the reel compartment was not readily visible and was
protected by bolted covers and by a guard. Furthermore, one would have to get down and peer
through the guides to observe the accumulations. Tr. 959-960, 964, 974, 977, 981-82; R. Ex.
87(a). Finally, since the unit was idle, it was less likely that an examiner would discover the
condition until production resumed and the bolted covers were removed by a rank-and-file bolter
operator during his examination and cleaning. That weekly examination was not yet due at the
time the citation was written. Accordingly, I find sufficient mitigating circumstances to reduce
Respondent’s negligence to moderate.
Guided by the regular assessment criteria set forth in § 100.3 as applied to my findings
above, I assess a penalty of $807.
4.

Citation No. 8436403

The Secretary argues that Respondent violated§ 75.400 because there were
accumulations of float coal dust in crosscut 100 on the main west travel way. The Secretary
claims that the violation was S&S because it was reasonably likely to lead to lost workdays or
restricted duty to one person, and was the result of high negligence because Respondent should
have known about the condition and offered no mitigating circumstances.
Respondent argues that the S&S and high negligence designations are inappropriate and
that the regularly assessed proposed penalty of $13,268 is excessive.
a.

The Alleged Violation

On October 19, 2011, inspector Fazzolare, accompanied by Respondent’s compliance
supervisor, Vernon Dunn, issued 104(a) Citation No. 8436403 alleging a violation of 30 C.F.R. §
75.400, as follows:
There were paper thin to approximately 1/16 accumulations of float
coal dust in XC 100 on the Main West travelway, these
accumulations were rib to rib, on the ribs and on the 1200 volt
energized power center, on the overhead light, on both cat heads and
on the switch box.

36 FMSHRC Page 1709

This is the 267th violation of this standard at this mine since
10/20/2009.
P. Ex. 43. The citation was designated S&S, reasonably likely to result in a lost workdays or
restricted duty injury to one person, and the result of high negligence.
Fazzolare observed combustible and volatile accumulations of float coal dust out by
active workings on a 1200-volt energized power center, and on the permissible overhead light,
and the cat heads and switch box located at crosscut 100 in the Main West travelway, which
paralleled the Main West No. 2 belt. Tr. 988, 990-93, 1010, 1015, 1022, 1024; P. Exs. 43, 44.
The floor of the Main West travelway was composed of gray clay-like material, and there was
approximately three to four inches of rock dust on the floor of the cited area. Tr. 1023-24. Dunn
testified that the float coal dust could have come from the running belt or the roadway. Tr. 102627.
The accumulations were paper thin to one-sixteenth of an inch thick and found in an area
that had been rock dusted previously. Tr. 989; P. Ex. 45, at 7. Fazzolare was concerned with the
accumulations of combustible material on top of the rock dust. Tr. 1013. Fazzolare testified that
in the event of a fire, the float coal dust would burn off and fuel the fire. Tr. 989.
There were some accumulations on top of the transformer, but not inside the transformer.
Tr. 1008, 1025. No citations were issued with respect to the transformer or overhead lights. Tr.
1026. There was no methane in the area. Tr. 1029.
Based on his experience and the extent of the accumulations, Fazzolare determined that
the cited condition existed for more than one shift, and likely did not arise after the last pre-shift
examination. Tr. 995-96; 1033. Dunn confirmed this. Tr. 1027, 1033.
Fazzolare designated the violative condition as S&S because there were several ignition
sources present around the highly volatile fuel source, which exposed an examiner or
maintenance person working on the power center to the hazard of a fire, which was reasonably
likely to result in lost workdays or restricted duty due to smoke inhalation. Tr. 994-95; P. Ex.
43.
Fazzolare also determined that the violation resulted from high negligence given the large
number of section 75.400 citations that Respondent was issued, and because the cited area was
supposed to be pre-shifted every eight hours. Tr. 996. Although Fazzolare testified that he was
not shown any pre-shift inspection reports indicating that the area had been examined, he did not
write any citation for failure to conduct a pre-shift under section 75.360. Tr. 991-92, 996.
Fazzolare testified that the condition was obvious and should have been noted by the pre-shift
examiner and by any maintenance personnel or foreman, who entered the area. Tr. 996-97,
1015. Fazzolare did not recall management providing any mitigating circumstances. Tr. 999.
His notes, however, indicate that Dunn told him that he did not think there was a hazard present.
P. Ex. 45, at 7.

36 FMSHRC Page 1710

Dunn testified that he told Fazzolare that the citation should not be written because the
condition did not present a hazard given the amount of rock dust present and the absence of any
ignition source. Tr. 1028, 1037-38. According to Dunn, Fazzolare responded that the
transformer constituted the ignition source. Tr. 1038.
Fazzolare testified that the citation was terminated twenty minutes after issuance when
Respondent’s agent mixed the float coal dust with the existing rock dust in the area to lower
combustibility, and also wiped off the switch box and overhead light. Tr. 999, 1014. Dunn
testified that the abatement process lasted “probably ten minutes.” Tr. 1025. Dunn testified that
the rock dust on the floor was so deep that it was just kicked around with his feet and a broom.
Tr. 1025. Dunn further testified that when he cleaned off the top of the transformer, he felt
nothing but “body temperature-type heat” of about 100 degrees, which he opined was
insufficient to cause any sort of ignition. Tr. 1025-26, 1029.
Fazzolare did not testify with any specificity about the overhead light mentioned in the
citation. Dunn testified that it was a fluorescent-type light with a plastic cover, and that he did
not recall seeing float coal dust on the light bulb, or cleaning or wiping off the light bulb or its
cover. Tr. 1032-35.
b.

Legal Analysis

I find a violation of section 75.400. Respondent permitted paper thin accumulations of
float coal dust from rib to rib in the Main West travel way at cross cut 100, and on the
transformer, overhead light, cat heads and switch box located at this location. Section 75.400
provides that “[c]oal dust, including float coal dust deposited on rock-dusted surfaces, loose coal,
and other combustible materials, shall be cleaned up and not be permitted to accumulate in active
workings, or on diesel-powered and electric equipment therein.”
Essentially for the same reasons set forth above with respect to Citation No. 8428798, I
find the violation set forth in Citation No. 8436403 to be non-S&S. The float coal dust
accumulations on top of the coal transformer did not contribute to a discrete fire hazard that was
reasonably likely to result in a serious injury. Under continued normal mining operations, it is
unlikely that the paper thin layer of coal would cause the transformer to reach a temperature of
300 degrees, which was enough to ignite the coal dust. Accordingly, the S&S designation is
removed.
I affirm the high negligence designation. The Secretary established that Respondent
should have known of the condition. I reject Respondent’s argument that it is unlikely that the
condition came into existence since the last pre-shift examination because it was located near an
active belt line and travel way. I note that Dunn, Respondent’s own witness, confirmed
Fazzolare’s testimony that the condition likely existed at the time of the last pre-shift
examination. Furthermore, I discount the argument that a mine examiner would not have
regarded the condition as hazardous and reportable. Although Dunn told Fazzolare that he did
not think there was a hazard present, particularly given the amount of rock dust present and the

36 FMSHRC Page 1711

absence of any ignition source, these are not mitigating circumstances because the amount of
rock dust on the floor did not mitigate the float coal dust on the transformer, cat heads and
overhead light, which are potential ignition sources capable but not likely to result in a mine fire.
In sum, the high number of past violations of section 75.400, the fact that Respondent had notice
that accumulations were at issue at the mine, the fact that the condition should have been
recorded, but was allowed to exist for at least one shift, and the absence of persuasive mitigating
circumstances support my finding of high negligence.
Guided by the regular assessment criteria set forth in § 100.3 as applied to my findings
above, I assess a penalty of $2,678.
C.

Maintenance of Incombustible Content of Rock Dust Order No. 8428378
1.

Order No. 8428378

The Secretary alleges that the Respondent violated section 75.403 because the mine floor
in entry no. 6 of MMU 011 did not contain enough rock dust to achieve 80% non-combustible
content. The Secretary further alleges that the violation was unlikely to result in injury, but if
injury did occur, it would be fatal, with sixteen persons affected. The Secretary further alleges
Respondent’s high negligence and unwarrantable failure to comply with the standard.
Respondent argues that the Order should be vacated because it was based on samples
taken from discrete piles of material that were not representative of the entry floor. Respondent
also challenges the gravity, high negligence, and unwarrantable failure designations, and the
appropriateness of the specially assessed proposed penalty of $45,000.
a.

The Alleged Violation

During an E02 spot inspection on June 20, 2011, inspector Eddie Kane,21 accompanied
by Respondent’s representative Mike Cummins and miner’s representative Ron Pinkston, issued
section 104(d)(2) Order 8428378 for a violation of 30 C.F.R § 75.403. Tr. 564, 567; P. Ex. 34.
Section 75.403 states:
Where rock dust is required to be applied, it shall be distributed upon
the top, floor, and sides of all underground areas of a coal mine and
maintained in such quantities that the incombustible content of the
For three years prior to the hearing, MSHA inspector Kane worked as a coal mine
inspector and collateral duty special investigator in the Benton, Illinois field office. Tr. 560-62.
Prior to joining MSHA, Kane worked in the industry for about nine years as an outby laborer,
examiner, face boss, ram car operator, roof bolter, and scoop operator. Kane possesses state
mining examiner and mine manager certifications and ninety-six hours of electrical training. Tr.
560-61. Kane was the lead inspector at WLPM in early 2012 and visited the mine almost every
day. Tr. 563.
21

36 FMSHRC Page 1712

combined coal dust, rock dust, and other dust shall not be less than
80 percent. Where methane is present in any ventilating current, the
percent of incombustible content of such combined dust shall be
increased 0.4 percent for each 0.1 percent of methane.
The Order was designated non-S&S, unlikely to result in a fatal injury to sixteen persons,
and the result of high negligence and an unwarrantable failure. P. Ex. 34. As a result of this
Order, the area was closed off, and no other activity was allowed to proceed through the area.
Tr. 700.
The Order issued at 10:30 a.m., when the unit was in full production running coal. P. Ex.
34; Tr. 592, 656. The shift began at 7:15 a.m. The first coal run was made at 8:05 a.m. Tr. 706;
R. Ex. 25. Three cuts had been taken on the left side of the unit, at the 9 left crosscut, entry no. 9
and entry no. 8. Tr. 706-07; R. Ex. 25. Typically, three coal haulers on the left side of the unit
used entry no. 6 to go to the feeder. Tr. 669. The ram cars made about 60-80 trips from face to
feeder per shift. Tr. 669.
Kane testified that upon arriving at Unit 1 entry no. 6, Kane observed a lot of coal dust
and float coal dust all over the entry and obvious to the casual observer. Tr. 565-66, 592.22
Kane had to stop and wait for a ram car to pass through the area. Kane noticed that the ram car
was kicking up a lot of black coal dust and suspending it in the atmosphere. Tr. 566, 577.23
Kane then walked further into entry 6, which was off the 2nd right panel from the 5th north
main, and he noticed that this condition was extensive between survey station 10 + 75 and 12 +
35. Tr. 566. Kane took two floor samples from the area where the violative condition existed.
Tr. 580-81, 583. Kane took photographs, measurements, and two spot samples about 160 feet
apart across the entire entryway. Tr. 577-79, 584-85; P. Ex. 35-37. The piles of coal sampled
on the return side ribs were 18-24 inches wide, and six to ten inches deep. Tr. 578-79, 584; P.

Entry no. 6 was about twenty feet wide and was used as a haulage road for the left side
of the unit to haul coal from face to the feeder. Tr. 656, 658.
22

I credit this specific testimony from Kane. Although Cummins testified that he did not
recall observing any ram cars drive through entry 6 and he did not observe any “rock dust” in
suspension, Cummins confirmed that the accumulations were present on the mine floor along the
two ribs because ram cars would rub against and grind material off the rib as they turned into the
crosscut. Tr. 667-68. I also note that section foreman Blaine Shires observed ram cars running
in entry 6 that day, but by the time Shires reached the area, Kane had already shut it down. Tr.
718-19.
23

36 FMSHRC Page 1713

Ex. 35; P. Ex. 36, at 3.24 The piles that were cited extended approximately 18-24 inches in width
from the left rib line into the entry. Tr. 578-89, 615-16; P. Ex. 35; R. Exs. 23(i), 23(k), 23(w).
Cummins and Shires credibly testified, as corroborated by photographic evidence, that the piles
were created when ram cars struck the ribs as they turned into the crosscut toward the feeder. Tr.
658, 668, 678, 708-09; R. Ex. 2, at 15-18; R. Ex. 23(a); R. Ex. 23(x). Cummins also explained
that the miner cable was present on the opposite side of the piles, which would cause the
operators to “hug farther to the left-hand rib to stay off the cable.” Tr. 669-71.
Kane testified that the accumulations occurred over a period of time, which he estimated
to be about two shifts, excluding the current one. Tr. 586. Although section foreman Shires
testified that entry no. 6 was regularly scooped at least once per shift to clean spillage along the
haulageway (Tr. 710), Respondent proffered no specific testimony or documentary evidence that
entry no. 6 was scooped and/or rock dusted on the prior two shifts. By contrast, Kane’s notes
indicate that the condition has existed for at least two shifts since it appears that the
accumulations came from overloaded ram cars dropping excess coal on the haul road, and then
continually running over the coal until it was ground into a fine powder and pushed to the rib
line by the wheels of the ram car. P. Ex. 36, at 3. In these circumstances, I credit Kane’s
empirical estimate that the accumulations existed for about two shifts. Tr. 586.
Cummins did not witness Kane take a sample across the entire width of the mine floor.
Tr. 680. Cummins and Shires confirmed that Kane took two samples, although Cummins and
Shires only witnessed Kane take one spot sample from the rib area floor. Tr. 680-82, 691-92,
715-16. Cummins specifically raised an objection with Kane about the manner in which Kane
was taking his sample. Tr. 692. Cummins also recorded his observation in documentation that
he completed immediately after the inspection. Tr. 683; R. Ex. 19. Cummins noted, “[t]he
inspector only collected a sample of the coal that was spilled.” R. Ex. 19. Neither Cummins nor
any other representative of Respondent took a sample of their own. Tr. 689, 697.
For each sample taken, Kane received lab results indicating that the incombustible
content of the rock dust was non-compliant. One sample contained 43.4% incombustible
content, the other 48.1%. Tr. 585, P. Ex. 37. Per section 75.403, each sample should have had
80% incombustible content. Tr. 586.
Kane testified that MSHA’s policy on rock dust sampling is dependent on the area where
the sample is taken and the ability to take a representative sample of the area. Tr. 580-82.
Where possible, MSHA procedures typically require the taking of a band sample from the roof,
ribs, and floor, but MSHA’s inspection procedure manual does not indicate that a band sample is
mandatory. Tr. 588-89; P. Ex. 58. The ribs and roof had been rock dusted with a wet duster and
were a whitish color. Tr. 582, 618, 667; P. Ex. 35. Kane did not include any of the rock dusted
surfaces from the roof or ribs in his samples. Tr. 680.
Cummins, who did not take measurements, recalled that the accumulations were about
six inches deep. Tr. 662; P. Ex. 35; P. Ex. 36, at 3. Cummins further testified that the length of
the condition was about 150 feet, excluding the length of the crosscut in the measurement. Tr.
666-67.
24

36 FMSHRC Page 1714

Kane testified that he took two floor samples from the area where the violative condition
existed. Tr. 580-81, 583. He testified that the rib had wet rock dust on it and the floor away
from the ribs was very hard and there was not enough material to sample down an inch and
“cone and quarter.” To obtain a representative sample, Kane used a floor brush and a dust pan to
brush 1/8 to 1/4 inch across the surface of the entry floor from rib to rib. Kane then ran the
sample through his 20-mesh sieve and tagged the entire sample to be sent to the lab for testing.
Tr. 581-82.
As noted, Cummins and Shires testified that they did not observe Kane take a sample
from across the entire width of the floor, but they each observed one sample at survey station
10+85. Tr. 679-80, 682, 709, 718. In any event, I credit Kane’s testimony, confirmed on cross
examination, that he used a floor brush and a dust pan to brush across the surface of the entry
floor from rib to rib. Tr. 616-17. Accordingly, I find Cummins’ testimony – that the floor in the
entry consisted of incombustible fire clay, other than the piles cited – to be an overstatement that
does not account for coal dust across the entry. Tr. 667.
Respondent’s witness Steve Kattenbraker, a former MSHA field office supervisor and
current contractor for parent Peabody Energy, confirmed that while a band sample from floor,
rib, and roof may be preferable, an inspector could take a sample representative of the entire
floor, and if such sample cannot be taken an inch down, the inspector should brush what he can
off the floor. Tr. 635-39, 642-45. Further, safety compliance supervisor Danny Bishop testified
regarding Citation 8428798 that Respondent has only taken floor samples, not band samples,
when the floor was the area cited. Tr. 867, 869-70. Finally, based on prior sampling experience
from ribs after wet-dry dusting, Kane testified that a band sample that included the ribs and roof
would have been less representative of the violative condition and put even more combustible
material into the sample. Tr. 626-29.
Kane determined that no methane was present in the air course in entry no. 6, and that the
methane at the face was not high and measured 0.2%. Tr. 588, 620; P. Ex. 36, at 2. Kane further
determined that a coal dust explosion was unlikely and the violation was non-S&S. Tr. 590.25
Kane also testified, however, that the left-side miner was used in the entry, and cutting torches or
welding equipment may be brought into the area, thereby introducing an ignition source
necessary to trigger an explosion. Tr. 590-91, 621. Kane determined that in the unlikely event
of a coal dust explosion, injury would be fatal, and all sixteen miners working inby would be
killed. Tr. 590-94; P. Ex. 36.
Kane testified that Respondent had failed several rock dust surveys in the past and that
Respondent’s management was repeatedly told during closeout conferences that it needed to
comply with the standard and get the mine rock dusted, or there would be increased enforcement.
Tr. 571. Kane also testified about fatalities in mines because of inadequate rock dusting and that
such fatalgrams are posted on MSHA’s website and hand-delivered to mine operators upon
issuance. Tr. 572-73; P. Exs. 50-51. Kane further testified that MSHA provides bulletins to
Kattenbraker testified that float coal dust must be extremely dense to ignite, without
methane, such that visibility would be less than two feet. Tr. 640-41.
25

36 FMSHRC Page 1715

operators to educate them on proper rock dusting and ventilation maintenance to keep methane
away from the faces in an effort to prevent explosions and fires, especially during winter months.
Tr. at 574; P. Ex. 52.
Kane determined that Respondent’s violation resulted from high negligence because
Respondent had been warned repeatedly to increase rock dusting, and the condition was open
and obvious to face bosses, who were required to walk through the entry to reach the working
section and its face for on-shift examination purposes. Tr. 591-92. Kane further determined that
the violation was an unwarrantable failure to comply with the rock dusting standard because the
condition was obvious and extensive and the face bosses should have known that it existed. Tr.
594.
Abatement efforts, which involved scooping the area and rock dusting the floor, took
about an hour. Tr. 595.
b.

Legal Analysis

I find a violation of section 75.403. Section 75.403 requires that the incombustible
content of the rock dust be no less than 80%. 30 C.F.R. § 75.403; Tr. 568-69. The Secretary’s
unrebutted sample evidence shows that both samples were non-compliant; one sample contained
43.4% and the other 48.1% incombustible content, well below the 80% incombustible content
requirement.
Respondent argues that observations alone are insufficient to support a section 75.403
violation, and that the violative samples taken from isolated coal spills are not evidence of
inadequate rock dusting. Rather, Respondent argues that the samples must be taken from
representative areas of the mine floor rather than from areas where discrete coal accumulations
are located. Accordingly, Respondent argues that Order No. 8428378 should be vacated because
it is premised upon samples that were taken from discrete piles of material that were not
representative of the floor in entry no. 6.
I reject Respondent’s arguments. The standard does not require the taking of band
samples. Cf. Eighty-Four Mining Co., 22 FMSHRC 690, 698 (2000) (ALJ). In addition, I have
credited Kane’s testimony that he used a floor brush and a dust pan to brush across the surface of
the entry floor from rib to rib in order to take a representative floor sample. Finally, the
testimony from Kane and Respondent’s witnesses establishes that the sampling methodology
employed to obtain representative samples was reasonable given the nature and location of the
accumulations along the rib.
I further find that the violation was the result of high negligence. The record establishes
that the coal dust accumulations in entry no. 6 were open and obvious to face bosses, who were
required to walk through the entry to reach the working section and its face for on-shift
examination purposes. Tr. 565-66, 591-92. In addition, Respondent had been admonished
repeatedly during close out conferences to enhance rock dusting at the mine. Tr. 571. Finally,

36 FMSHRC Page 1716

Respondent proffered no evidence of mitigating circumstance other than its challenge to
sampling methodology, rejected above. Tr. 595-96. In sum, the fact that Respondent had
knowledge of rock dusting inadequacies and did not take facile steps to become compliant
supports a high negligence finding.
Although the issue is close, I further find that the violation was an unwarrantable failure
because there is sufficient evidence of aggravated conduct constituting more than ordinary
negligence and a serious lack of reasonable care. As noted, “aggravating factors” include the
length of time that the violation has existed, the extent of the violative condition, whether the
operator has been placed on notice that greater efforts were necessary for compliance, the
operator’s efforts in abating the violative condition before citation, whether the violation was
obvious or posed a high degree of danger, and the operator’s knowledge of the existence of the
violation. IO Coal, 31 FMSHRC at 1350-51.
Initially, I find that the violative condition was fairly extensive. Both piles of material
were twenty-four inches in width from the ribline, about six to ten inches deep, and were about
160 feet apart in the no. 6 entry. More importantly, the first sample was about 46% noncompliant and the second sample was about 40% non-compliant. Furthermore, Kane credibly
testified that the coal dust and float coal dust was present all over the entry. In these
circumstances, even though the condition was abated in about an hour by scooping and rock
dusting, I find that the extensiveness factor tips in favor of an unwarrantable failure finding.
I have credited credit Kane’s testimony that the condition existed for about two shifts,
despite general testimony from Respondent that entry no. 6 was regularly scooped at least once
per shift. Two shifts is definitely a period of time long enough to require that action be taken to
eliminate the violative condition. Cf., Windsor Coal Co., 21 FMSHRC 997, 1002 (Sept. 1999);
see also Buck Creek Coal, 52 F.3d 133, 136 (7th Cir. 1995) (finding unwarrantable failure where
cited accumulation must have been present at least since the previous shift). Accordingly, I find
that the duration of the violation for about two shifts weighs in favor of finding an unwarrantable
failure.
I have also credited Kane’s testimony that Respondent repeatedly was placed on specific
notice during closeout conferences that greater efforts were necessary for compliance with rock
dusting standard section 75.403, or increased enforcement would result. Although Respondent
notes that it was assigned only two repeat violation history points for Order No. 8428378 (R. Ex.
28), this fact confirms that Respondent had at least six recent violations of the same standard in
the past fifteen months, and bolsters rather than undermines Kane’s testimony that greater
compliance efforts were necessary. Respondent did, however, make some efforts to comply with
the rock dust requirement as demonstrated by the fact that the roof and ribs of entry #6 were
adequately rock dusted and Respondent was supposed to regularly scoop the haulage way once
per shift. Tr. 583, 630, 710. Accordingly, this factor tips slightly in favor of an unwarrantable
failure finding.

36 FMSHRC Page 1717

With regard to whether the condition posed a high degree of danger, Kane determined
that a coal dust explosion was unlikely and the violation was non-S&S. Tr. 590. No ignition
sources were present. There was no methane in the air course in entry no. 6 and negligible
methane at the face. Tr. 588, 620; P. Ex. 36, at 2. It is undisputed that the roof and ribs of entry
no. 6 were adequately rock dusted. The Secretary’s own documentation on explosions and rock
dusting awareness states that “[f]loat coal dust on the ribs, roof, and other elevated surfaces
(overhead dust) can be dispersed much more readily by an explosion than dust on the floor.” P.
Ex. 53, at 2. In these circumstances, despite Kane’s testimony that in the unlikely event of a coal
dust explosion, injury would be fatal and all sixteen miners working inby would be killed (Tr.
590-94; P. Ex. 36), I find that the remote possibility of a high degree of danger weighs against an
unwarrantable failure finding.
The record establishes that the violative condition was open and obvious. Upon arriving
at Unit 1 entry no. 6, Kane observed a lot of coal dust and float coal dust all over the entry and
open and obvious to the casual observer. Tr. 565-66, 592. The piles of coal sampled on the
return side ribs were 18-24 inches wide, and six to ten inches deep, and the dust extended
approximately 160 feet across the entry. Tr. 578-79, 584; P. Ex. 35; P. Ex. 36, at 3. The piles
that were cited extended approximately 18-24 inches in width from the left rib line into the entry.
Tr. 578-89, 615-16; P. Ex. 35; R. Exs. 23(i), 23(k), 23(w). Accordingly, the obviousness factor
supports an unwarrantable failure finding.
The operator had knowledge of the condition or at least should have known about it.
Both management representatives Cummins and Shires were aware that ram cars traveling
through the entry would strike the ribs, resulting in accumulations. Tr. 658-59, 672, 709. As
noted, I have credited Kane’s empirical estimate that the accumulations existed for about two
shifts. Tr. 586. Thus, face bosses, who were required to walk through the entry to reach the
working section and its face for on-shift examination purposes, should have noted and corrected
the condition prior to the inspection. Tr. 591-92, 594. Accordingly, the knowledge factor
supports finding an unwarrantable failure.
Finally, an operator’s efforts to abate a violation are relevant to an unwarrantable failure
determination. Thus, where an operator has been placed on notice of a problem, the level of
priority that the operator places on abatement of the problem is relevant. IO Coal, 31 FMSHRC
at 1356 (citing Enlow Fork Mining, 19 FMSHRC at 17). The focus is on abatement efforts made
prior to issuance of the citation or order. Id.
Concededly, Respondent made some efforts to rock dust to maintain the requisite
incombustible content required by the standard. Nevertheless, even though Respondent did
attempt to make efforts to eliminate section 75.403 violations generally, this evidence is not
dispositive of the specific unwarrantable failure allegation at issue. Where an operator has actual
knowledge of a violative condition, the Commission has considered the operator’s abatement
efforts of the specific violation in question. See Consolidation Coal, 22 FMSHRC at 330-33;
Windsor Coal, 21 FMSHRC at 1005-07. As noted, both management representatives Cummins
and Shires were aware that ram cars traveling through the entry would strike the ribs, resulting in

36 FMSHRC Page 1718

accumulations. Further, the accumulations existed for about two shifts and the face bosses
examining the working section and face should have corrected the condition prior to the
inspection. Accordingly, I conclude that Respondent failed to make adequate efforts to abate the
known violation prior to its issuance. Respondent’s inadequate abatement efforts also support an
unwarrantable failure finding.
On balance, after considering and weighing the relevant Commission factors, I conclude
that all of the factors except the high degree of danger factor support a finding that the violation
in Order No. 8428378 was the result of Respondent’s unwarrantable failure to comply with
section 75.403. Moreover, even that factor had a remote possibility of a high degree on danger.
Accordingly, I find an unwarrantable failure violation for Order No. 8428378.
Although the Secretary adduced no specific evidence or rationale to justify the special
assessment in this matter, Respondent did so by introducing the Special Assessment Narrative
Form received in evidence as R. Ex. 28. Given my high negligence and unwarrantable failure
findings, I find that a specially assessed penalty was warranted here. Accordingly, guided by the
criteria set forth in § 100.3 and the Special Assessment General Procedures, I assess a penalty of
$45,000.
D.

The September 12, 2011 Impact Inspection and the Alleged Violation of § 103(f)
Walkaround Rights Regarding Citation Nos. 8431250, 8431251, and 8431252
1.

Commission Precedent in SCP Investments

In SCP Investments, the Commission recognized that the qualified walkaround rights set
forth in Section 103(f) of the Mine Act are mandatory, but their erroneous denial provides no
basis for vacating citations or orders. SCP Invs., LLC, 31 FMSHRC 821 (2009). The
Commission did not address the complex constitutional issue of whether a violation of the Due
Process Clause of the Fourteenth Amendment would defeat the final clause of Section 103(f),
which bars vacation of a citation or order for failure to comply with Section103(f) requirements.
Respondent has raised that constitutional due process argument here. R. Br. at 76-78.
In SCP Investments, Commissioners Young and Cohen directed Commission judges to
hold a suppression hearing and apply an exclusionary rule under which evidence obtained in
violation of an operator’s walkaround rights may be excluded when an operator can demonstrate
prejudice in the preparation or presentation of its defense. 31 FMSHRC at 834-37. Chairman
Jordan dissented and found that safety violations observed in contravention of walkaround rights
do not constitute evidence obtained by virtue of an illegal action such as a violation of the Fourth
Amendment’s protection from unreasonable searches and seizures. She found it improper for the

36 FMSHRC Page 1719

judge to consider denial of walkaround rights in deciding whether the Secretary established a
violation. Id. at 841-45. Commissioners Nakamura and Althen have not yet passed on the
issue.26
Against this backdrop, the undersigned heard testimony from one company representative
(Crit Stephenson) and three MSHA inspectors (Robert Hatcher, Larry Morris, and Phillip
Stanley) regarding an impact inspection on September 12, 2011. Respondent argues that three
citations – Citation Nos. 8431250, 8431251, and 8431252 – which inspector Hatcher wrote
during that impact inspection when he walked a beltline unescorted, violated its walkaround
rights under section 103(f) of the Mine Act.
The issues presented are whether Respondent’s section 103(f) walkaround rights were
denied with respect to the three citations issued by inspector Hatcher. If so, what is the
appropriate remedy for such denial under extant Commission precedent? If not, did the
violations occur as alleged, and what are the appropriate gravity and negligence findings and the
appropriate penalties?
For the reasons set forth below, I find that Respondent’s walkaround rights were violated
during the instant impact inspection and I apply an exclusionary rule that examines whether
Respondent has shown prejudice in its ability to observe the condition, as cited. Applying this
analysis, I exclude all evidence in support of Citation 8431251, which resulted from the
unescorted inspection, including the Secretary’s photographs and Hatcher’s testimony, and I find
insufficient independent evidence to support that citation and the proposed penalty. Similarly,
with regard to Citation No. 8431250, I also find that Respondent has been prejudiced by its
inability to observe and challenge Hatcher’s chemical test and his testimony based on that test.
Accordingly, I exclude such evidence and conclude that there is insufficient evidence to support
a violation of the cited standard. Finally, with regard to Citation No. 8431252, I find that
Respondent has not been prejudiced by Hatcher’s testimony or the photographs he took
concerning this violation because Respondent could go back and check the belt alignment and its
contact points with the brackets and stands after notice of the violation, and Respondent could
observe the violation in essentially the same condition as inspector Hatcher observed it.
Accordingly, I affirm that citation as non-S&S because it was unlikely to result in a lost
workdays or restricted duty injury, with one person affected. I also affirm Hatcher’s high
negligence determination. Although Respondent was denied an opportunity to timely proffer
mitigating circumstances to the inspector, Respondent was given an opportunity but failed to
raise any mitigating circumstances after the fact and at trial. Accordingly, guided by the regular
assessment criteria set forth in § 100.3(a) as applied to my findings above, I assess a penalty of
$1,203.
Former Chairman Duffy found a suppression hearing unnecessary and would allow the
judge during the crucible of a hearing to determine the existence and extent of prejudice when
determining a violation and the appropriate penalty in the context of citations written after
improper denial of walkaround rights on mine property. SCP Invs. LLC, 31 FMSHRC at 838-40.
26

36 FMSHRC Page 1720

1.

Suppression Hearing Facts

On September 12, 2011, five MSHA inspectors arrived at WLPM to perform an impact
inspection during the middle of the afternoon shift about 6:30-7:00 p.m. During that impact
inspection, MSHA inspector Hatcher issued Citation Nos. 8431250, 8431251, and 8431252 at
issue herein. Tr. 415, 421-22, 436, 468; P. Exs. 9, 10, 12.
Outby foreman Crit Stephenson had just transported a sick miner to the surface when he
encountered MSHA field office supervisor Steve Miller and assistant district manager Mary Jo
Bishop at the staging area of the bath house. Tr. 413-15. Miller was the lead MSHA supervisor
for the WLPM. Tr. 496. Miller told Stephenson that MSHA was conducting an impact
inspection and instructed him not to contact anyone or make any phone calls and to transport
three inspectors (Hatcher, Morris, and Stanley) underground to different locations. Tr. 415.
Neither Miller nor Bishop testified at the hearing and the Secretary has adduced no
evidence to rebut Stephenson’s account of Miller’s directive. Ordinarily, Stephenson would
have obtained company escorts for each inspector, but he did not in this instance because he was
he was told not to make any phone calls. Tr. 416.
Stephenson waited until MSHA inspectors Robert Hatcher, Larry Morris, and Phillip
Stanley were ready to be transported underground. Tr. 415, 417, 469. Stephenson testified that
Respondent usually uses a four-man safety ride to travel from the surface to the underground
mine. Tr. 407. That ride left no room for additional escorts. I infer that MSHA knew this since
inspectors were at the mine on a daily basis.
Inspector Morris testified that MSHA has impact inspections during the middle of a shift
to catch an operator by surprise. Tr. 437. He further testified that when regular inspections are
conducted at the start of a shift, Respondent has escorts waiting to accompany the inspectors, but
MSHA is not required to wait for the escorts. Tr. 438.
Morris testified that when the inspectors arrived, they were already dressed and ready to
go underground. Tr. 438. They went through the diesel shop area and offered three hourly
miners the opportunity to accompany them as miners’ representatives, but these miners declined.
Tr. 441. Morris further testified that had there been more salaried employees (management
representatives) present on the surface, they would have been offered walkaround rights as well
because that is normal procedure. Tr. 441, 453. But on cross of Morris, Respondent established
that although other management representatives besides Stephenson were not present, MSHA
was not going to wait around for anyone else. Tr. 456.
Morris’ testimony suggests that during an impact inspection, MSHA takes deliberate
measures to show up mid-shift with several inspectors already dressed and ready to go when it is
likely that most management representatives are already underground or gone for the day. Tr.
432, 452-53, 454-55. Morris further testified that section foremen can often be found
underground on a miner or longwall unit and then offered walkaround rights, but seldom do such

36 FMSHRC Page 1721

representatives take MSHA up on the offer. Tr. 453-54. In this case, however, the impact
inspectors targeted belt lines where foremen normally are not present. Tr. 454.
Respondent argues that MSHA did not follow its typical procedures under which MSHA
inspectors, several of whom may be present at the large mine on a daily basis, arrive at the
mine’s safety department office prior to the commencement of the shift, announce their presence,
and wait for a company escort and a miners’ representative to accompany each inspector before
beginning the inspection. R. Br. 63 (citing Tr. 405-06, 416, 438). Stephenson testified, and
inspector Hatcher confirmed, that in such circumstances the inspectors would not tell their
escorts where they were going until they left the surface. Tr. 406-07, 494. Stephenson testified,
therefore, that there was no opportunity to provide advance notice of the inspection to miners
working underground. Tr. 409. Stephenson further testified that this arrangement never caused
any problems. Tr. 410. The Secretary did not establish any history of providing advance notice
at the WLPM.
Hatcher testified that once Stephenson and the three inspectors began traveling inby, they
stopped a vehicle coming out, which had some hourly miners on it, and asked if the miners
wanted to accompany the inspectors. The miners declined and were instructed not to tell anyone
that the inspectors were in the mine. Tr. 484-85. Morris confirmed that miner’s representative
Ron Pinkston was given and declined the opportunity to turn around and follow the inspection
party. Tr. 458-59.
Eventually, inspectors Morris and Hatcher instructed Stephenson to drop them off at the
4th North and 1st West belt intersection. Tr. 417. Morris inspected the 4th North belt and wrote
three citations that are not at issue, one for unsupported roof in the corner of an intersection on
the belt line; one for a hole in a ventilation stopping; and one because four contract miners did
not have multi-gas detectors. Tr. 457, 460-61.
After writing these citations without any management representative present, Morris
contacted mine manager, Joel Hughes, because Morris could not leave the contract miners
without multi-gas detectors. Tr. 447-451, 462. When Hughes arrived, Morris informed Hughes
about the three citations that he had written and Hughes went and obtained multi-gas detectors
for the contract miners. Tr. 450-451. Morris then offered Hughes the chance to accompany him
as he walked the rest of the belt, but Hughes declined. Tr. 450.
As noted, Hatcher inspected the 1st West belt and wrote the three citations at issue,
Citation Nos. 8431250, 8431251, and 8431252, between 9:45 and 10:45 p.m. Tr. 487; P. Exs. 9,
10, 12. In his notes, Hatcher wrote “Declined” in the space used to identify the miners’
representative. But in the space used to identify the company representative, Hatcher wrote,
“Impact Inspection.” P. Ex. 14, at 1.

36 FMSHRC Page 1722

Citation No. 8431250 alleges a violation of 30 C.F.R. § 75.333(h) and states:
The Kennedy equipment doors separating the intake (primary escape
way) from the 1st West conveyor belt at cross cut #13 are not being
maintained to serve the purpose for which they were built. The
equipment doors next to the belt conveyor line are damaged. The
west door has a hole at the top of the door 1 inch to 3 inches in width
x 5 feet in length. The east door has a hole along the bottom of the
door and is 12 inches to 3 inches in width x 6 feet in length. Air is
leaking through the bottom and top of the doors to the belt line. This
was determined by chemical smoke.
Standard 75.333(h) was cited 28 times in two years at mine 1103054
(28 to the operator, 0 to a contractor).
P. Ex. 9. The citation was designated non-S&S, unlikely to result in a lost workdays or restricted
duty injury, with one person affected, and the result of high negligence. Id. The proposed
penalty is $873.
Citation No. 8431251 alleges a violation of 30 C.F.R. § 75.400 and states: as follows:
Accumulation of combustible materials in the form of coal pressing
have been allowed to accumulate under the bottom return roller at
cross cut #37. The bottom return roller is in contact with the coal
pressing and the mine floor. The belt was in service at time of
inspection.
P. Ex. 10. The citation was designated S&S, reasonably likely to result in a lost workdays or
restricted duty injury, with one person affected, and the result of high negligence. Id. The
proposed penalty is $13,268.
Citation No. 8431252 alleges a violation of 30 C.F.R. § 75.1731(b) and states:
Conveyor belts must be properly aligned to prevent the moving belt
from rubbing the structure or components. The bottom return
conveyor belt on the 1st west conveyor belt line is not properly
aligned and is rubbing the steel bottom roller hanger brackets at the
following locations: 2 bottom brackets at cross cut #5 to cross cut #6,
1 bottom roller bracket at cross cut #6 to cross cut #7, and 2 bottom
roller brackets at cross cut #7. Also the bottom return belt is in
contact with 1 bottom belt stand on the south side of the conveyor
belt at cross cut #10 and at cross cut #37 the bottom return conveyor
belt has bee[n] in contact with the bottom belt stand and has cut
through the steel 2 inch bottom belt stand for a depth of 1¾ inches.

36 FMSHRC Page 1723

P. Ex. 12. The citation was designated non-S&S, unlikely to result in a lost workdays or
restricted duty injury, with one person affected, and the result of high negligence. Id. The
proposed penalty is $1,203.
The Secretary provided no evidence that Respondent’s representatives were informed of
or learned of the violations written by Hatcher shortly after he observed them.
Meanwhile, after dropping Hatcher and Morris off, Stephenson continued driving
inspector Stanley inby and dropped him off at the tail of the 2nd West belt. Tr. 418, 469. At that
location, hourly belt shoveler Lonnie Frederickson was present and Stephenson asked
Frederickson to act as a miner’s escort with Stanley. Tr. 418-19. Stephenson then parked at the
head of the 2nd West belt and rejoined Stanley. Tr. 418-420.
After accompanying Stanley for part of his inspection of the 2nd West belt, Stephenson
subsequently met Hatcher and then Morris, before driving all three inspectors out of the mine.
Tr. 420-21. On the surface, the inspectors met with the midnight-shift mine manager, Nathan
Genesio, and the midnight-shift miners’ representative, Martin Long, during the closeout
conference. Neither Genesio nor Long raised any issue about denial of walkaround rights. Tr.
463.
It is undisputed that no company escort or walkaround representative was with Hatcher
when he wrote the three citations at issue during his inspection of the 1st West belt. Tr. 420.
Respondent argues that this was because Miller told Stephenson above ground that he would not
permit Stephenson to make any phone calls to obtain additional escorts. R. Br. 70-71. The
record establishes that Respondent provides its escorts with training on how to take samples,
heat gun measurements, photographs and notes, and how to gather other information relating to
particular cited conditions. Respondent does this, in part, to facilitate the presentation of
mitigating factors to the inspector, which address gravity and negligence findings in a
citation/order. Tr. 410-413. Of particular relevance, Stephenson testified that if an inspector,
such as Hatcher here, was walking a belt line and found a roller turning in accumulations or a
belt rubbing at the stand, the escort would use a heat gun to determine the temperature of the
frictional ignition source and assess the likelihood of fire. Tr. 411. Similarly, for a rock dusting
or accumulation citation, the escort would take a sample to determine the combustibility content.
Tr. 411-12.
By contrast, the Secretary argues that at no time during Hatcher’s inspection did any
management representative seek Hatcher out in an effort to accompany him. P. Br. 66 (citing Tr.
489). In addition, the Secretary emphasizes that Stephenson did not ask to make any phone calls
after he dropped off the inspectors underground, although he had the ability to call anywhere in
the mine. In fact, Stephenson never asked any of the three inspectors whether he could call
additional company representatives to accompany the inspectors once they were in place. P. Br.
64-65 (citing Tr. 424, 444, 470). Respondent notes, however, that Morris and Hatcher began
their inspections as soon as they got off their ride upon arrival at their locations, and based on

36 FMSHRC Page 1724

Morris’s testimony about not waiting on the surface, Respondent argues that the inspectors were
not going to wait for management representatives or escorts to arrive underground. R. Br. 62, at
n. 45, 71, 72 (citing Tr. 456, 495, 500-01).
Morris testified that Stephenson could have made phone calls once the inspectors were in
place because that would not have constituted pre-notification. Tr. 444. Hatcher also testified
that Stephenson could have asked for a management representative to accompany Hatcher on his
inspection. Tr. 485-86.
Stephenson never indicated to the inspectors that he was upset that more management
representatives were not with him to accompany the inspectors. Tr. 424-25, 444, 470, 485. To
the contrary, Stanley described Stephenson as very amicable. Tr. 470. The Secretary, however,
failed to establish that any inspector advised Hatcher that he could call additional representatives
once the inspectors were in place or extended him the opportunity to do so after Miller issued his
directive on the surface that Stephenson not call anyone.
2.

Legal Analysis
a.

No Fourth Amendment Violation is Present

At the outset, I reject Respondent’s argument that any denial of section 103(f)
walkaround rights, by extension, is also a violation of the Fourth Amendment’s protection
“against unreasonable searches and seizures” because the opportunity to accompany inspectors is
critical to the Mine Act’s “inspection program,” which justifies warrantless searches. Cf., New
York v. Burger, 482 U.S. 691, 703 (1987). In Donovan v. Dewey, the Supreme Court held that
warrantless inspections of mines pursuant to Section 103(a) of the Mine Act are not per se
unreasonable and therefore do not violate the Fourth Amendment. 452 U.S. 594, 605 (1981).
Respondent argues that warrantless inspections, even in the context of a pervasively regulated
industry such as mining, are deemed reasonable only if three criteria are met. Burger, 482 U.S.
at 702 (1987). First, there must be a substantial government interest that informs the regulatory
scheme to which the inspection is made. Id.; Donovan, 452 U.S. at 602. Second, the warrantless
inspection must be necessary to further the regulatory scheme. Burger, 482 U.S. at 702;
Donovan, 452 U.S. at 600. Third, the statute’s inspection program, in terms of the certainty and
regularity of its application, must provide a constitutional substitute for a warrant. Burger, 482
U.S. at 703; Donovan, 452 U.S. at 604-605.
It is noteworthy that an “impact inspection” is not mentioned in the Mine Act or any
MSHA-promulgated regulation. It is a special initiative following the explosion at the Upper
Big Branch Mine (UBB) to enhance surprise and promote miner safety and health, the
paramount concern of the statute. Monthly impact inspections, which began in force in April
2010 following the explosion at UBB, involve mines that merit increased agency attention and
enforcement due to poor compliance history or particular compliance concerns. These matters
include: high numbers of violations or closure orders; frequent hazard complaints or hotline
calls; plan compliance issues; inadequate workplace examinations; a high number of accidents,

36 FMSHRC Page 1725

injuries or illnesses; fatalities; and adverse conditions, such as increased methane liberation,
faulty roof conditions, inadequate ventilation and accumulations of respirable dust. See, e.g.,
Press Release No. 13-2103-NAT, MSHA, MSHA Announces Results of September Impact
Inspections (Oct. 31, 2013), available at http://www.msha.gov/MEDIA/PRESS/2013/
NR131031.asp.
Typically, an impact inspection involves multiple inspectors who simultaneously arrive
unannounced at a pre-selected mine site, capture the phones to preclude advance notice, and
spread out to find as many violations as possible. MSHA targets mines with a particular history
of compliance problems. Such problems include use of tactics to hide violations from MSHA;
employee hazard complaints or anonymous hotline calls; non-compliance with MSHA-approved
plans; inadequate workplace exams; a high injury rate; a fatality; a pattern of violations; or
hazardous conditions at the mine. See, e.g., Michael T. Heenan, Dreaded Impact, Pit & Quarry,
Nov. 2012, at 50. As in this case, these surprise impact inspections often occur mid-shift or
during night shifts, when fewer representatives are available to accompany the inspectors on
behalf of the operator. Id.
As practitioner Heenan points out, however, such inspections are not really new because
MSHA has been doing “blitz” inspections since the earliest days of the Federal Coal Mine
Health and Safety Act of 1969 (Coal Act), and they have continued under the Federal Mine
Safety and Health Act of 1977 (Mine Act) as consistent with provisions that encourage “frequent
inspections.” Id. After the UBB disaster, however, MSHA’s impact inspections are conducted
nearly every month under a formalized program in which mines are selected according to the
above-referenced criteria and the results are publicly announced. Id. Accordingly, I find that the
certainly and regularity of impact inspections targeting particular mines that meet specific
criteria satisfies constitutional search and seizures concerns irrespective of whether distinct and
separate statutory walkaround rights are violated.27
Furthermore, in the circumstances of this case, I find that the public interest in promoting
safety at the WLPM outweighs the inconvenience of unannounced, warrantless impact
inspections that make the exercise of statutory walkaround rights more difficult. Section 103(a)
of the Act explicitly gives MSHA inspectors the right to enter any mine without any advance
notice of an inspection. 30 U.S.C. § 813(a). In fact, section 103(a) of the Act grants MSHA
inspectors the right to conduct warrantless inspections in the inherently dangerous and
pervasively regulated mining industry to ensure compliance with mandatory health and safety
standards without violating the Fourth Amendement. Donovan v. Dewey, 452 U.S. 594, 596,
603, 605 (1986). Accordingly, mine operators must be aware and expect continuous and
frequent impact inspections without a warrant or probable cause.

Respondent’s Fifth Amendment due process arguments are discussed separately below
under the Matthews v. Eldridge paradigm. See 424 U.S. 319 (1976).
27

36 FMSHRC Page 1726

b.

The Statutory Provisions in Tension: Section 103(a) Must be Balanced
with Section 103(f)

Section 103(a) of the Mine Act states in part, “[i]n carrying out the requirements of this
subsection, no advance notice of an inspection shall be provided to any person . . . .”
Section 103(f) of the Mine Act states in pertinent part:
Subject to regulations issued by the Secretary, a representative of the
operator and a representative authorized by his miners shall be given
an opportunity to accompany the Secretary or his authorized
representative during the physical inspection of any coal or other
mine made pursuant to the provisions of subsection (a), for the
purpose of aiding such inspection and to participate in pre- or
post-inspection conferences held at the mine . . . . Compliance with
this subsection shall not be a jurisdictional prerequisite to the
enforcement of any provision of this Act.
The Secretary has not issued any regulations under section 103(f). Nor has the Secretary
issued any regulations to govern impact inspections, which have become prevalent since the
April 2010 UBB coal mine disaster.
I agree with the Secretary that the ability of MSHA inspectors to protect miners from
deadly hazards without advance notice of an inspection under section 103(a) of the Mine Act
must be balanced with the operator’s right to accompany the inspector under section 103(f) of
the Mine Act during an inspection. P. Br. 61. This case presents the novel issue of how the
Commission should determine such balance during an impact inspection involving multiple
inspectors when MSHA specifically informs the operator’s walkaround representative not to
make any phone calls and to escort multiple inspectors underground. I conclude that MSHA is
obligated to provide an opportunity to an operator representative to accompany each inspector
for the purpose of aiding each inspection. Otherwise, statutory rights under section 103(f)
effectively vanish during impact inspections.
In this case, there was no outright denial of Respondent’s walkaround rights as in SCP
Investments. Respondent’s representative Stephenson was given an opportunity to accompany
the Secretary’s authorized representatives. But Stephenson could not be in three places at once
to aid the inspectors when they fanned out underground, and he was specifically instructed by
Miller, the lead MSHA supervisor for the WPLM, not to make any phone calls.
The statutory language of section 103(f) uses the word “representative” in the singular,
i.e., “a representative of the operator and a representative authorized by his miners shall be given
an opportunity to accompany the Secretary or his authorized representative during the physical
inspection of any coal or other mine made pursuant to the provisions of subsection (a), for the
purpose of aiding such inspection . . . . “ In the legislative history, however, the Senate

36 FMSHRC Page 1727

Committee explained that section 103(f) requires “that representatives of the operator and
miners be permitted to accompany inspectors in order to assist in conducting a full inspection. It
is not intended, however, that the absence of such participation vitiate any citations and penalties
issued as a result of an inspection.” SCP Invs., 31 FMSHRC at 831 (citing Rep. No. 95-181, at
28 (1977), reprinted in S. Subcomm. on Labor, Comm. on Human Res., Legislative History of
the Federal Mine Safety and Health Act of 1977, at 616 (1978). Thus, the Commission has held
that Section 103(f) affords both representatives of operators and representatives of miners the
right to accompany an MSHA inspector during a “physical inspection of [the] . . . mine” and to
“participate in pre- or post-inspection conferences held at the mine.” See Sec’y of behalf of
Wayne v. Consolidation Coal Co., 11 FMSHRC 483, 488 (April 1989) (citing 30 U.S.C. §
813(f)).
This right to accompany an inspector is not an unqualified right because it is “[s]ubject to
regulations issued by the Secretary,” requires that a representative “be given an opportunity to
accompany” the inspector, and grants the inspector discretion to permit additional
representatives where he determines that more than one walkaround representative would aid his
inspection. Id. (citing 30 U.S.C. § 813(f); Emery Mining Corp., 10 FMSHRC 276, 279 (Mar.
1988)). Furthermore, the Secretary has given MSHA inspectors the authority to limit the number
of representatives participating in an inspection, consistent with the primary obligation to carry
out inspections in a thorough, detailed, and orderly manner. Interpretative Bulletin, 43 Fed. Reg.
17546 (1978); Emery Mining Corp, 10 FMSHRC at 289, n. 13. More specifically, the
Secretary’s Interpretative Bulletin, which sets forth guidelines for the inspector’s interpretation
and application of section 103(f) provides that “[w]here necessary in order to assure a proper
inspection, the inspector may limit the number of representatives of the operator and miners
participating in an inspection.” 43 Fed Reg. at 17546.
In this case, however, the Secretary has failed to show that Miller’s directive to
Stephenson not to make any phone calls was necessary to assure a proper impact inspection and
preclude advance notice. Rather, on this record I conclude that MSHA failed to give Respondent
an opportunity to exercise its full section 103(f) walkaround rights when Miller instructed
Stephenson to transport three inspectors underground and not to contact anyone or make any
phone calls. Tr. 415. Miller explicitly denied Stephenson the “opportunity” to contact other
management officials to act as operator representatives to aid in the inspection. I credit
Stephenson’s testimony that he did not attempt to obtain company escorts for each of the three
inspectors (Hatcher, Morris, and Stanley) because he was told by Miller not to make any phone
calls. Tr. 416. Miller’s directive runs counter to MSHA’s statutory obligation to afford an
operator representative an opportunity to accompany each authorized representative of the
Secretary during the physical inspection of the mine.
I reject the Secretary’s argument that MSHA did not deny Respondent an opportunity to
escort the inspectors because Stephenson should have called for an escort after dropping off each
inspector at the various locations. As noted, Stephenson was given an explicit directive by
Miller not to call anyone, and another supervisory official (Bishop) was present when Miller’s
directive was given. Tr. 415. Stephenson recognized them as supervisory officials for MSHA.

36 FMSHRC Page 1728

Id. I decline to require Stephenson to buck Miller’s direct order and invoke or insist on the
opportunity for one-to-one walkaround rights either on the surface or underground as a means of
securing the opportunity that the statute requires MSHA to give. But see NLRB v. J. Weingarten,
Inc., 420 U.S. 251, 257 (1975) (employee’s statutory right to union representation during an
investigatory interview arises only where the employee requests representation; hence, employee
may forego his statutory right and participate in an interview unaccompanied by his union
representative). Of course, the Commission is free to fashion a policy decision to the contrary.28
Miller’s pre-emptive directive to Stephenson suggests that MSHA had little interest in
affording Respondent its statutory opportunity to have a representative escort each inspector for
the purpose of aiding their impact inspection. Both on the surface and underground, Stephenson
complied with the government’s directive and did not call any other management officials to act
as company escorts. Tr. 416. As a result, Hatcher’s inspection of the 1st West belt was
unescorted. Although inspectors are not required to wait for management escorts and can
“walk” into a mine (Tr. 456-57),29 section 103(f) places the onus on MSHA to give an
opportunity to company representatives to accompany the inspectors for purposes of aiding their
inspection. In short, Miller’s directive, which Stephenson followed, denied Respondent an
opportunity to escort Hatcher’s inspection.
The Secretary justifies Miller’s directive to Stephenson not to call company escorts on
the grounds that Respondent cannot provide advance notice of an inspection. P. Br. 61. On this
There appears to be some confusion as to whether the Commission formulates any
policy. Certainly, it does not formulate enforcement policy, left to MSHA. But the Mine Act
does gives the Commission jurisdiction over “substantial question[s] of law, policy or
discretion,” 30 U.S.C. § 823(d)(2)(A)(ii)(IV), and the legislative history makes clear that “[t]he
Commission was established as the ‘ultimate administrate review body’ under the Act due to the
recognition that ‘an independent Commission is essential to provide administrative adjudication
which preserves due process and instills much more confidence in the program.’” Old Ben Coal
Co., 1 FMSHRC 1480, 1484 (Oct. 29, 1979) (citing S. Rep. No. 95-181, at 13 (1977), reprinted
in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 601, 635 (1978)). The Supreme
Court has also recognized the unique role of the Commission in formulating a uniform and
comprehensive interpretation of the Mine Act. Compare Thunder Basin Coal Co. v. Reich, 510
U.S. 200 (1994) (affirming the Commission’s role as the arbiter of questions of interpretation of
the Mine Act) with Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 15758 (1991) (emphasizing the narrowness of the holding that the OSH Act did not grant OSHRC
the authority to interpret OSHA regulations); see also Speed Mining, Inc., 28 FMSHRC 773
(Sept. 2006) (Chairman Duffy, concurring) (concurrence provides a detailed examination of the
differences in the OSH Act and the Mine Act).
28

See DJB Welding, 32 FMSHRC 728, 736 (June 2010) (ALJ) (inspector not obligated
to delay inspection or wait longer than reasonable for a representative to arrive, citing F.R.
Carroll, Inc., 26 FMSHRC 97, 98 (Feb. 2004 (ALJ) (operator who was “too busy” to accompany
inspector had responsibility to designate another representative).
29

36 FMSHRC Page 1729

record, that justification is a red herring. All inspections preclude advance notice and operators
are charged with this knowledge. The Secretary failed to establish that affording Respondent an
opportunity to provide an escort for inspector Hatcher would compromise any protection against
advanced notice of the inspection. On the contrary, Stephenson testified that regular inspections
with multiple inspectors are common at the WLPM. Tr. 405, 438. Normally, during such
inspections, MSHA provides Respondent with an opportunity to obtain a company representative
for each inspector before the beginning of the inspection. Tr. 406, 416. Before such inspections,
the inspectors would not tell the representatives where they were going to inspect so as to reduce
any likelihood of advanced notice. Tr. 406-07, 494. These inspection procedures worked and
the Secretary has not alleged any problems of advanced notice at the WPLM. Tr. 504.
Therefore, on this record, the Secretary’s generalized concern over the possibility of advanced
notice do not override the Respondent’s section 103(f) right to be given an opportunity to aid in
each portion of the impact inspection, including Hatcher’s inspection.
In addition, I find it telling that Hatcher’s notes state “Impact Inspection” in the space
used to identify a company representative, suggesting that MSHA may think that such
inspections are exempt from 103(f) requirements. At the very least, it would appear that Hatcher
never intended for there to be a company representative with him during the impact inspection.
I reject any argument that Stephenson was an operator representative, who was given an
opportunity to accompany Hatcher during his inspection. After transporting Hatcher to the 1st
West belt, Stephenson was required to drive further inby and drop inspector Stanley off.
I also reject the argument or any suggestion that section 103(f) rights do not apply in
impact inspections. Rather, I agree with Respondent that the Secretary cannot justify MSHA’s
failure to offer an opportunity to an operator representative to accompany inspector Hatcher
simply by characterizing the September 12, 2011 inspection as an “impact inspection” designed
to preclude advance notice. I note that inspector Morris, on cross examination, conceded that the
impact inspection was part of a regular EO1 inspection. Tr. 436. More importantly, the
Commission has held that walkaround rights under Section 103(f ) apply to all inspections.
Consolidation Coal Co., 16 FMSHRC 713, 719 (Apr. 1994) (issue of miners’ representative). In
fact, one Commission judge has characterized the right of a mine operator to be afforded an
opportunity to be present and to accompany an inspector as a fundamental right and found that
MSHA inspectors must make every reasonable effort to give a mine operator an opportunity to
exercise its walkaround rights. DJB Welding Corp., 32 FMSHRC 728, 733, 735 (June 2010)
(ALJ) (emphasis added).
Although impact inspections make it more difficult for operators to invoke walkaround
rights, the enhanced miner safety and health that results from impact inspections outweighs this
difficulty. Furthermore, operator preparation and training for impact inspection contingencies
can alleviate this concern.
On the other hand, MSHA cannot employ this successful and important initiative to deny
an operator its statutory right to accompany an inspector for the purpose of aiding such

36 FMSHRC Page 1730

inspection under section 103(f). As the Commission has stated, “[w]e are not prepared to restrict
the rights afforded by [section 103(f)] absent a clear indication in the statutory language or
legislative history of an intent to do so, or absent an appropriate limitation imposed by
Secretarial regulation.”) Consolidation Coal Co., 3 FMSHRC 617, 618 (Mar. 1981). I find no
clear indication in statutory language, legislative history, or regulation to limit section 103(f)
rights during impact inspections.
In sum, I conclude that MSHA failed to give Respondent an opportunity to accompany
inspector Hatcher for the purpose of aiding his inspection of the WLPM during the impact
inspection on September 12, 2011. This failure violated Respondent’s statutory walkaround
rights under section 103(f) of the Mine Act.
As a remedy for the statutory infringement of Respondent’s walkaround rights, I apply an
exclusionary rule and determine what, if any, evidence from Hatcher’s inspection of the 1st West
belt should be excluded if Respondent can demonstrate prejudice in the preparation or
presentation of its defense. SCP Invs. LCC, 31 FMSHRC at 835-37 (citing Frank Lill & Son,
Inc. v. Sec’y of Labor, 362 F.3d 840, 846 (D.C. Cir. 2004); Pullman Power Prods., Inc. v.
Marshall, 655 F.2d 41, 44 (4th Cir. 1981); Marshall v. Western Waterproofing Co., 560 F.2d
947, 951-52 (8th Cir. 1977); Hartwell Excavating Co. v. Dunlop, 537 F.2d 1071, 1073 (9th Cir.
1976); Chicago Bridge, 535 F.2d at 376; Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 833-34
(5th Cir. 1975); Titanium Metals Corp. of Am., 7 OSHC 2172 (Jan. 1980); Laclede Gas Co., 7
OSHC 1874 (Oct. 1979); Able Contractors, Inc., 5 OSHC 1975 (Oct. 1977)).
c.

The Constitutional Due Process Issue

Before addressing an exclusionary rule remedy for the statutory infringement of
Respondent’s walkaround rights, I first address Respondent’s argument that the erroneous denial
of its right to be given an opportunity to participate in Hatcher’s inspection was a violation of
constitutional due process. I do so because an argument can be made based on non-precedential
decisions of Commission judges that a denial of due process may be grounds for vacating
citations otherwise jurisdictionally and substantively valid, i.e., a potentially stronger remedy
than application of an exclusionary rule. See SCP Invs., LLC., 32 FMSHRC 119, at 124-25 (Jan.
2010) (ALJ after remand) (citing American Coal Co., 29 FMSHRC 941, 952-53 (Dec. 2007));
Gates & Fox Co. v. OSHRC, 790 F.2d 1189, 1193 (9th Cir. 1982) (considerations of due process
prevent imposition of a civil penalty and validation of a citation otherwise properly issued); DJB
Welding, 32 FMSHRC at 734-35 (suggesting, even after the Commision’s decision in SCP
Investments, that a violation of walkaround rights that results from an abuse of discretion
provides a sufficient basis for vacating citations). It is troubling that the Secretary does not even
address the Respondent’s due process arguments on brief, even though the Secretary was clearly
on notice at the hearing that Respondent was raising this constitutional issue when Respondent
unsuccessfully moved to vacate the citations written by inspector Hatcher. Tr. 398-400.
In its remand in SCP Investments, Commissioners Young and Cohen noted that “[t]he
only possible basis to overcome the [jurisdictional] statutory language would have to be

36 FMSHRC Page 1731

constitutional in nature, such as a violation of the Due Process Clause,” a “complex issue” not
presented in that case. 31 FMSHRC at 834, fn. 14. Extant Commission case law establishes that
violations of due process are grounds for vacating citations otherwise jurisdictionally and
substantively valid. American Coal Co., 29 FMSHRC at 952-53 (citing Gates & Fox Co. v.
OSHRC, 790 F.2d at 1193). Consequently, the constitutional issue presented in this case is
whether MSHA’s denial of the Respondent’s statutory section 103(f) walkaround right to
accompany inspector Hatcher when he wrote citations on the 1st West belt line was a due
process violation. Especially cognizant of the judge’s analysis of this issue on remand from the
Commission in SCP Investments, I conclude that MSHA’s conduct during the subject impact
inspection constituted a constitutional violation of procedural due process.
The Fifth Amendment provides that “no person shall be . . . deprived of life, liberty, or
property, without due process of law . . . .” Clearly, no deprivation of life occurred here. Nor do
I find any deprivation of a liberty interest. Concededly, the Supreme Court recognized in Board
of Regents v. Roth, that the definition of liberty must be “broad” and include “not merely the
freedom from bodily restraint but also the right of an individual to contract, to engage in any of
the common occupations of life, to acquire useful knowledge, to marry, establish a home and
bring up children, to worship God according to the dictates of . . . conscience, and generally to
enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free
men.” 408 U.S. 564, 576-78 (1972) (quoting Meyer v. Nebraska, 262 U.S. 390, 392 (1923)).
Despite this broad definition, the Roth court did not look to the “weight but to the nature of the
interest at stake” and held that the opportunity to keep a teaching positions at a state university,
or other government job was not comparable to those freedoms enunciated in Meyer. 408 U.S. at
575. Similarly, I find that the mandatory language in section 103(f) creating a statutory right in
an operator representative to be given an opportunity to accompany an MSHA inspector for the
purpose of aiding in an inspection does not implicate a major loss of personal freedom or liberty
such that due process protections must be accorded. Compare Goss v. Lopez, 419 U.S. 565
(1975) (ten-day suspension from high school implicates liberty interest), and Gagnon v.
Scarpelli, 411 U.S. 778 (1973) (probation revocation), and Morrisey v. Brewer, 408 U.S. 471
(1972) (parole revocation), with Sandin v. Conner, 515 U.S. 472 (1995) (mandatory language in
state prison regulations will not create a liberty interest for placement in solitary confinement
because of prison misconduct unless the deprivation imposes atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life).
The property interest analysis is more difficult. The Roth Court recognized that a
property interest is “a legitimate claim of entitlement” that arises, not from the Constitution
itself, but is created and defined “by existing rules or understandings that stem from an
independent source such as state law-rules or understandings that secure certain benefits and that
support claims of entitlement to those benefits.” Roth, 408 U.S. at 576-78. Thus, Respondent
must demonstrate that some authoritative source of law “establishes a definite standard to guide
the decision . . . rather than confiding the decision to the discretion of the administering
authorities.” See Gilbert v. Frazier, 931 F.2d 1581 (7th Cir. 1991). For example, in Goldberg v.
Kelly, where the Court finally abandoned the right-privilege distinction, the welfare claimants
had a property interest at stake because the underlying federal legislation provided that

36 FMSHRC Page 1732

individuals who met certain criteria had a legal right to receive welfare payments. 397 U.S. 254,
261-63 (1970); see also Mathews v. Eldridge, 424 U.S. 319 (social security benefits).
Here, Respondent has demonstrated a legitimate claim of entitlement to be given an
opportunity to accompany inspector Hatcher during his inspection of the 1st West belt. Like in
Goldberg v. Kelly and Mathews v. Eldridge, this right is grounded in federal statute, specifically
section 103(f) of the Mine Act. The denial of Respondent’s statutory right to be given an
opportunity to accompany inspector Hatcher during the impact inspection for the purpose of
aiding such inspection also operated to deprive Respondent of an opportunity to provide
exculpatory information or a different version of the facts during the course of the inspection,
which could have been relied on during participation in the post-inspection conferences at the
mine, and in its defense of the civil penalty petition at trial. Obviously, any civil penalty
assessed compels Respondent to relinquish money, which is a tangible property interest.
Despite the Secretary’s silence, I recognize that an injury to a protected property interest
does not qualify as a deprivation if the injury is inflicted through mere negligence rather than
deliberation. See, e.g., Daniels v. Williams, 474 U.S. 327 (1986). On this record, however, I
find that MSHA made a deliberate decision to limit walkaround rights during the impact
inspection. Two facts lead inexorably to this conclusion. Lead field office supervisor Miller
instructed Stephenson not to make any phone calls with the foreseeable result that Stephenson,
without disobeying the government edict, could not obtain sufficient company representatives.
Second, Hatcher’s notes indicate that no company representative was needed because this was an
impact inspection.
Since I have determined that a constitutionally protected property interest was infringed,
I next address what procedures the Constitution requires for the violation. In Matthews v.
Eldridge, the Court endeavored to maintain flexibility in due process analyses based on the
particular situation presented. The Court looked to three factors in order to determine what
process is due.
First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value if, any, of additional or
substitute procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirements would entail.
Mathews v. Eldridge, 424 U.S. at 334-35 (1976) (citing Goldberg v. Kelly, 397 U.S. at 263-271).
Addressing the first factor, the deprivation of Respondent’s private interest to accompany
inspector Hatcher for the purpose of aiding in his inspection is readily apparent. A major
objective of the Mine Act is to encourage the efforts of mine operators and miners “to prevent
the existence of . . . [hazardous] conditions and practices in . . . mines.” 30 U.S.C. § 801(e).

36 FMSHRC Page 1733

Accordingly, section 103(f) of the Act confers the right of representatives of mine operators and
miners to accompany inspectors during inspections “for the purpose of aiding such inspection.”
30 U.S.C. § 813(f). See SCP Invs. LLC, 32 FMSHRC 119, 126-27 (Jan. 2010) (ALJ). Skirting
the statutory walkaround requirement during an impact inspection or otherwise could deprive the
inspector of important information that would have been supplied to him by the operator
representative had one been given an opportunity to accompany the inspector. Cf., SCP Invs.
LLC, 31 FMSHRC at 843 (Jordan, Commr., dissenting).
With regard to the second factor, I have determined that MSHA’s instant impact
inspection, as carried out consistent with Miller’s directive that Respondent not make any phone
calls, erroneously deprived Respondent of its statutory right to be given an opportunity to
accompany inspector Hatcher during his inspection of the 1st West belt. The Secretary, having
failed to even address the complex due process argument raised by Respondent, obviously has
failed to proffer any additional or substitute procedural safeguards for protecting Respondent’s
walkaround rights.30 But this does not mean that there are none. Even though the statutory
walkaround violation that I have found constitutes a denial of due process because of the
erroneous denial of Respondent’s right to be given an opportunity to participate in Hatcher’s
inspection,31 I find that any process due for violation of this statutory right is constitutionally
satisfied by application of an exclusionary remedy as explained by the Commission plurality in
SCP Investments. This finding accounts for the Commission’s unanimous conclusion that even
MSHA’s intentional failure to honor statutory walkaround rights under section 103(f) does not
prevent MSHA from taking enforcement action under the last sentence of that provision, which
precludes vacature. SCP Invs. LLC, 31 FMSHRC at 831.
Finally, turning to the Government’s interest, including the function involved and the
fiscal and administrative burdens that [any] additional or substitute procedural safeguards would
On remand in SCP Investments, the judge rejected the Secretary’s assertion that a
close-out conference is an acceptable substitute for walkaround rights. He found clear legislative
history that Congress did not intend to empower the Secretary to arbitrarily deny section 103(f)
walkaround rights in favor of a substitute procedure. 32 FMSHRC at 127-28.
30

On remand in SCP Investments, the judge found “[i]t is clear that the denial of Stone’s
right to accompany the inspector deprived the mine operator of its statutory right to provide
exculpatory information during the course of the inspection.” 32 FMSHRC at 125. It is not
clear to me that there is any such statutory right. Rather, section 103(f) provides a right to be
given “an opportunity to accompany the Secretary or his authorized representative during the
physical inspection of any coal or other mine made pursuant to the provisions of subsection
[103](a), for the purpose of aiding such inspection . . . .” Providing exculpatory information and
aiding the inspection are not necessarily the same. The judge then found “a denial of due
process because of the erroneous denial of Stone’s right to participate in the inspection,” and
applied the Matthews v. Eldridge factors “for determining whether a violation of due process has
occurred,” instead of for determining what process is due for the termination of a clear and
tangible property interest, such as the social security benefits at issue there. SCP Invs. LLC, 32
FMSHRC at 126 (citing Matthews v. Eldridge, 424 U.S. at 334-35).
31

36 FMSHRC Page 1734

entail, I have no doubt that impact inspections, which are designed for surprise and to preclude
advance notice, enhance miner safety and health. But MSHA can still employ this successful
and important initiative without denying an operator its statutory right to be afforded an
opportunity to accompany each inspector on an impact inspection for the purpose of aiding the
inspection under Section 103(f). MSHA’s provision of this mandatory but qualified right
imposes no significant fiscal or administrative burden on MSHA’s inspection regime.
In fact, affording Respondent an opportunity to participate in Hatcher’s inspection,
furthers, rather than burdens, the Government’s interest in encouraging a safer mining
environment. There can be little doubt that Respondent’s representatives are familiar with the
particular conditions that are unique to the WLPM. A representative of a mine operator can alert
an inspector to potential dangers based on familiarity with the mine. Mine operator
representatives, like miner representatives, are assets to a successful mine inspection, which
seeks to identify hazardous conditions and require remedial actions to alleviate the dangers. See
SCP Invs. LLC, 32 FMSHRC at 126. Accommodating walkaround rights does not result in any
significant administrative burden other than having to deal with a representative who may point
out hazards, offer justifications, proffer mitigating circumstances, and collect evidence that may
support a perspective contrary to the inspector’s view at hearing.
Accordingly, MSHA must accommodate an operator’s statutory walkaround rights
during an impact inspection with as little vitiation as is necessary to perform its inspection
function effectively without advance notice. Here, MSHA has not done that. Miller’s directive
precluding any phone calls to invoke a statutory right, was less designed to preclude advance
notice, already outlawed under section 103(a), than a purposeful effort to preclude Respondent’s
representatives from accompanying the three inspectors. Hatcher’s notes bolster this inference.
MSHA had many options available to afford Respondent an opportunity to aid in the impact
inspection. And since MSHA failed to do so, an exclusionary rule can be applied to remedy the
violation and provide a sufficient procedural safeguard should the operator demonstrate that it
was prejudiced by the violation.
d.

The Exclusionary Rule and Evidence of Prejudice

Applying an exclusionary rule pursuant to the plurality opinion of the Commission in
SCP Investments, I determine whether MSHA’s actions during the impact inspection prejudiced
Respondent. Under this approach, once a determination is made, as here, that an operator’s
walkaround rights were violated, the Commission determines what prejudice, if any, resulted
from the violation and what, if any, evidence proposed for admission by the Secretary should be
excluded because of prejudice to the operator, i.e., some, none, or all of the evidence resulting
from the inspection. 31 FMSHRC at 836-37.
Relying on the judge’s post-remand decision in SCP Investments, Respondent argues that
an arbitrary denial of section 103(f) rights is prejudicial per se, regardless of whether it interferes
with an operator’s ability to defend itself. R. Br. 78-79 (citing SCP Invs., 32 FMSHRC at 12829). While I am sympathetic to this argument, the Commission requires a showing of actual

36 FMSHRC Page 1735

prejudice to the preparation or presentation of the defense. See, e.g., Long Branch Energy, 33
FMSHRC 1960 (Aug. 2011) (ALJ), rev’d, 34 FMSHRC 1984, 1992 (Aug. 2012) (Duffy,
Comm’r, dissenting) (rejecting Supreme Court’s “danger of prejudice” factor enunciated in
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 395 (1993), and requiring that
the prejudice be “real” or “substantial” and demonstrated by a specific showing tied to “the
preparation and presentation of the operator’s case.”); Chicago Bridge, 535 F.2d at 374, 377
(essentially rejecting company argument that to allow the Secretary to bypass the statutory
walkaround right will permit the inspection process to operate on the employer in an “inherently
prejudicial manner,” and emphasizing both substantial compliance with the walkaround right and
the failure of the company to demonstrate “any concrete prejudice to its defense by the exclusion
from the inspection party”). On this record, however, Respondent has made a sufficient case that
it was actually prejudiced in the preparation or presentation of its typical defense to the citations.
Actual prejudice occurs when an operator can show that the denial of section 103(f)
rights resulted in an inability to prepare or present its defense on the merits before the
Commission. See SCP Invs. LLC, 31 FMSHRC at 835 (Aug. 2009) (citing Titanium Metals
Corp. of Am., 7 OSHC 2172 (Jan. 1980); Laclede Gas Co., 7 OSHC 1874 (Oct. 1979); Able
Contractors, Inc., 5 OSHC 1975 (Oct. 1977)). For example, an operator’s ability to defend itself
is adversely affected by the absence of an opportunity to provide material contemporaneous
information at the time of the inspection. SCP Invs. LLC, 32 FMSHRC at 128-29; but see
Marshall v. W. Waterproofing Co., 560 F.2d 947, 951-52 (8th Cir. 1977) (a showing that a large
number of citations were withdrawn and a small number of citations were sustained after a
complaint was filed, coupled with the fact that an employer had to post all citations at the
workplace, do not establish prejudice to an operator’s ability to defend on the merits); Titanium
Metals Corp. of Am., 7 OSHC 2172 (a claim that failure to comply with the walkaround
provision could create labor-management problems is not the type of prejudice contemplated by
the OSHA). Rather, actual prejudice occurs when the operator makes a specific showing that the
misbehavior prejudiced it in preparing or presenting its defense. A. J. McNulty & Co., 19 OSHC
1121, 1125 (Oct. 2000) (finding no prejudice since the operator’s representatives learned of the
violations almost immediately after the inspector observed them); see also Laclede Gas Co., 7
OSHC 1874 (Oct. 1979). Essentially, this actual prejudice requirement puts the burden on the
operator to establish the speculative possibility that the inspection would have revealed different
facts or the operator would have been aided in preparation of its typical defense to the citations.
On remand in SCP Investments, the judge recognized the difficulty in applying an
exclusionary hearing to determine what information, if any, would have been provided during
the inspection in defense of each citation.
Having been deprived of the opportunity, we will never know what
information Stone would have provided during the December 2005
inspection. Any testimony he now may give concerning what he
might have said is entitled to little weight because it is remote in time
and self-serving. In other words, the Secretary’s denial of Stone’s
due process has undermined the value of Stone’s testimony.

36 FMSHRC Page 1736

Certainly, the Government should not benefit from its own
misconduct. Rather, two Commissioners suggested that I determine,
in view of the denial of Stone’s 103(f) walkaround right, whether
“none, some, or all of the evidence resulting from the inspection”
should be excluded. 31 FMSHRC at 836-37.
Once due process issues arise, all direct and indirect evidence
obtained as a result of a government official’s abuse is excluded.
See, e.g., Weeks v. United States, 232 U.S. 383 (1914); Nardone v.
United States, 308 U.S. 338, 341 (1939) (suppression of “fruit of
poison tree”); Wong Sun v. United States, 371 U.S. 471, 484 (1963)
. . . . Having given the Secretary the opportunity to address the due
process issue, and, having determined that Stone’s right to due
process was violated, all evidence obtained as a result of the
inspector’s observations of the mine conditions during the inspection
must be excluded. Weeks, supra.
I decline to exclude all direct and indirect evidence obtained as a
result of MSHA’s violation of an operator’s walkaround rights.
In my view, such a result essentially compels exclusion without
initial assessment of the prejudice issue in application of an
exclusionary rule.
Given the difficulty of determining what evidence would have been presented had an
operator’s statutory rights not been violated by MSHA, I am of the view that a practical, flexible
and fact-based test of prejudice should take into account the dynamic nature of the mining
industry. Accordingly, when an operator is put on notice of the safety or health violation at
issue, it is prejudiced if it is unable to go and observe the condition or practice cited as the
inspector saw it in order to defend itself against the alleged condition. After all, the operator has
only been deprived of the opportunity to accompany the inspector and observe or test as the
inspector did. If this opportunity is still available, the operator is not actually prejudiced by the
denial of the opportunity to observe and test. Although there may be a denial of the opportunity
to timely proffer mitigating circumstances to the inspector, the operator can still raise mitigating
circumstances in an attempt to reduce a negligence determination after the fact and at trial.
In this case, Respondent has offered some evidence to demonstrate that it was prejudiced
in its ability to prepare its defense to the unescorted Hatcher citations. Respondent focuses on
specific prejudice that is best illustrated by Citation No. 8431251.
1.

Citation No. 8431251

Citation No. 8431251 alleges an S&S violation of section 75.400 for accumulations
present along the 1st West belt line. P. Ex. 10. Stephenson credibly testified, and Respondent
essentially demonstrated throughout the hearing, that for citations involving an alleged

36 FMSHRC Page 1737

accumulation of combustible material, Respondent’s walkaround representative would typically
take a sample of material to determine the combustibility content (Tr. 411-12), take a heat
reading to determine the amount of heat the alleged frictional ignition source would generate (Tr.
411), and take measurements and/or photographs to provide additional information about the
condition. Here, because MSHA failed to afford Respondent an opportunity to accompany
inspector Hatcher to aid his inspection, Respondent had no opportunity to gather such specific
evidence in defense of Citation 8431251. In short, because Respondent was not afforded the
opportunity to provide a representative to accompany inspector Hatcher along the 1st West belt
line, Respondent was precluded from gathering the very types of evidence in defense of Citation
No. 8431251 that it relied upon for its defenses of Order No. 8030700, Order No. 8428378,
Citation No. 8428798 and Citation No. 8436403, discussed herein.
It is undisputed that Respondent was denied any opportunity to sample the material cited
to determine its combustibility content. The standard, 30 C.F.R. § 75.400, requires an
accumulation of combustible material. Respondent argues that such evidence would have been
particularly critical because the Secretary’s three photographs of the condition (P. Ex. 11)
arguably shows material consisting of incombustible white rock dust. R. Br. 82. If Respondent
could show that the material cited was not combustible coal pressings, but incombustible, rockdusted material, there would be no violation of the standard and the citation could be vacated.
Respondent has made a colorable showing that it was denied this opportunity.
In addition, Respondent argues that it was denied any opportunity to take a heat reading
of the alleged frictional ignition source to determine if the roller that was in contact with the coal
pressings was capable of generating heat sufficient to produce an ignition or smoldering fire, i.e.,
the basis for Hatcher’s S&S finding. See Tr. 528-30.32 Although extant Commission case law is
not sympathetic to this argument for overturning an S&S finding, Respondent was denied the
opportunity to support the arguments it has raised in an effort to convince the Commission
otherwise. Further, although Hatcher determined negligence to be high because the operator had
been put on notice about citations of this nature, Respondent was denied any opportunity to take
measurements or photographs of the alleged condition to counter Hatcher’s testimony that the
condition was open and obvious, such that a belt examiner knew or should have known about it.
Tr. 532. Moreover, Respondent was denied the opportunity to present any mitigating
circumstances to inspector Hatcher at the time of the inspection or shortly thereafter based on
observations made by its representative.
Applying the exclusionary rule in light of Respondent’s prejudice arguments, I exclude
all evidence that resulted from the unescorted inspection, including the Secretary’s photographs
and Hatcher’s testimony proffered in support of Citation 8431251. Such exclusion is appropriate
because Respondent’s section 103(f) walkaround rights were violated and Respondent has
demonstrated sufficient prejudice because it was denied the opportunity to observe, test, and/or
photograph the alleged combustible material and frictional heat source in the same condition that
the inspector observed them. See SCP Inves., 31 FMSHRC at 835; Chicago Bridge, 535 F.2d at
Hatcher took no measurements of the depth of the cited coal pressings because the belt
was running. Tr. 525.
32

36 FMSHRC Page 1738

378; Marshall, 560 F.2d at 952. Upon such exclusion, there is insufficient independent evidence
to support Citation 8431251 and the proposed penalty.
2.

Citation No. 8431250

I next turn to Citation No. 8431250 alleging that Respondent violated section 75.333(h)
because the Kennedy equipment doors separating the intake air from belt air at cross cut #13
were not being maintained to serve the purpose for which they were intended. In its SCP
Investment decision, the plurality found that evidence may be excluded “when the employer can
demonstrate prejudice.” SCP Invs. LLC, 31 FMSHRC at 835 (citations omitted). When
addressing the question of prejudice in Chicago Bridge, the Seventh Circuit noted that the
Secretary bears the burden of proof on the citation and the “company has not attempted to
demonstrate that this burden has not been met, nor has it offered evidence to demonstrate
prejudice.” 535 F.2d at 377, n. 15. Although Respondent has not made any specific prejudice
argument on brief with respect to Citation No. 8431250, Respondent has at least attempted to
demonstrate that the Secretary has not met his burden of proof when an exclusionary rule is
applied because it argues that all evidence should be excluded.
The Secretary attempts to prove the violation alleged in Citation 8431250 through
Hatcher’s observation and testimony that air was leaking through the top and bottom of the doors
to the belt line based on the chemical smoke test that Hatcher performed, and from which
Respondent was excluded. According to Hatcher, the top of the west door had a hole that was
one to three inches in width and five inches in length, while the bottom of the east door had a
hole that was three to twelve inches in width and six feet in length. I conclude that Respondent
was not prejudiced by these measurements because it could go back and check them shortly after
notice of the violation. But the violation turns on whether the doors were serving their intended
purpose to separate the intake air from the belt air, not on whether the doors were damaged.
Although Respondent could go back after the fact and observe the dimensions of the holes in the
door, the Secretary provided no evidence, separate from Hatcher’s testimony based on the
chemical test that he performed, which would establish that the doors were not serving their
intended purpose. The violation was only established by the chemical test, which the operator
was unable to observe or challenge. A representative of Respondent was not given an
opportunity to be present to recreate the chemical test or challenge its methodology or reliability.
The Secretary failed to establish by any independent evidence that the extent of the holes in the
damaged doors necessarily established that the doors were not being maintained to serve their
intended purpose. While it may be possible to make such an inference had the case been tried
differently, in the absence of such evidence on this record, I decline to draw the inference.
Applying the exclusionary rule in light of the foregoing, I find that Respondent has been
prejudiced by its inability to observe and challenge Hatcher’s chemical test and his testimony
based on that test. Accordingly, I exclude such evidence. Upon such exclusion, there is
insufficient evidence to support a violation of the standard, as written, or the proposed penalty.

36 FMSHRC Page 1739

3.

Citation No. 8431252

Finally, I address Citation No. 8431252, which alleges a violation of section 75.1731(b)
because the bottom return belt on the 1st west belt line was not properly aligned and was rubbing
steel hanger brackets at three specified locations, and because the bottom return belt was in
contact with a stand on the south side of belt at cross cut #10, and had cut through the two-inch
steel stand at cross cut #37 for a depth of 1¾ inches. Again Respondent has not advanced any
specific prejudice argument on brief with respect to this Citation, but has at least attempted to
demonstrate that the Secretary has not met his burden of proof when I apply an exclusionary rule
because all evidence from the inspection should be excluded. I decline to exclude such
evidence.
The violation turns on whether the belt was misaligned and rubbing the brackets and
cutting into the stands. Respondent was not prejudiced by Hatcher’s testimony or the
photographs he took concerning this violation because Respondent could go back and check the
belt alignment and its contact points with the brackets and stands shortly after notice of the
violation, and Respondent could observe the violation in essentially the same condition as
inspector Hatcher observed it.
Accordingly, I affirm Citation No. 8431252 as non-S&S, unlikely to result in a lost
workdays or restricted duty injury, with one person affected. Although Respondent was denied
the opportunity to timely proffer mitigating circumstances to the inspector in an effort to reduce
the high negligence determination, the operator had an opportunity but failed to raise any
mitigating circumstances after the fact in the closeout conference or at trial. Guided by the
regular assessment criteria set forth in § 100.3 as applied to my findings above, I assess a penalty
of $1,203.
E.

Bench Decision Granting Respondent’s Motion to Vacate Order No. 8428701
1.

The Alleged Violation

At the end of the hearing, the undersigned granted Respondent’s request for a bench
decision to vacate Order No. 8428701. Tr. 1056-57. MSHA inspector Fazzolare wrote that
Order alleging that Respondent had not conducted a pre-shift examination of the right-side set of
rooms in Unit 5 during the midnight shift on May 9, 2011. P. Exs. 38, 39, at 12; Tr. 723-24.
Order No. 8428701 was issued pursuant to section 104(d)(2) and initially alleged a
violation of 30 C.F.R. § 75.360(a)(1), as follows:
There was no evidence of a pre-shift examination being conducted on
MMU 015-0, rooms to the right on the number 5 unit, for day shift
production crew.

36 FMSHRC Page 1740

There were no D, T & I’s in any of the three entries of the rooms.
The last time there was evidence of a pre-shift examination was
05/08/2011 for the oncoming midnight shift.
Standard 75.360(a)(1) was cited 2 times in two years at mine
1103054 (2 to the operator, 0 to a contractor).
The Order was designated S&S because highly likely to result in a permanently disabling
injury, with nine persons affected. The Order was also alleged to be the result of high
negligence and an unwarrantable failure. P. Ex. 38.
Near the end of the hearing, the undersigned granted the Secretary’s Motion to Plead in
the Alternative and allege a violation of 30 C.F.R. § 75.360(f), which states that the pre-shift
examination shall be certified at each working place by DTIs (date, time, and initials). Tr. 1056.
The issues presented are whether a violation of either alternatively pled standard in Order
No. 8428701 was established; whether any such violation was properly designated S&S and/or
an unwarrantable failure; whether the gravity and negligence determinations were proper; and
the appropriate amount of any penalty.
The Secretary argues that Respondent violated 30 C.F.R. § 75.360(a)(1) as alleged in
Order No. 8428701 because it failed to conduct a pre-shift examination of three entries on the
right side of the MMU 015 Unit. Alternatively, the Secretary argues that Respondent violated 30
C.F.R. § 75.360(f) when it failed to certify the pre-shift examination by date, time, and initials in
the three entries on the right side of the MMU 015 Unit.
Respondent argues that the undersigned appropriately granted Respondent’s motion to
vacate at the close of the hearing because no violation occurred. Even assuming arguendo that
any violation occurred, Respondent argues that the gravity, S&S, high negligence, and
unwarrantable failure findings are excessive and not supported by the record evidence, and the
specially assessed penalty of $52,500 is inappropriate.
2.

Factual Background
a.

The Secretary’s Evidence

Inspector Fazzolare issued Order No. 8428701 at 9:30 a.m. on May 9, 2011 because he
found a hazard in the No. 1 entry, which was cut too wide, and he could not find any DTI tags in
the three right-side entries of the MMU 015 Unit. Tr. 723-724, 728. Fazzolare testified that it
was obvious to the casual observer that the width of the entry was “wider than the law permits.”
Tr. 730. Fazzolare designated Order 8428701 as significant and substantial because the
excessively wide width of the #1 entry contributed to the hazard of a roof fall, which should have
been identified by the pre-shift examiner during his examination, and this condition was highly
likely to result in permanently disabling injuries, such as multiple broken bones. Tr. 728-33; P.

36 FMSHRC Page 1741

Ex. 38.33 Fazzolare determined that the mine examiner had not conducted a pre-shift
examination of the three right-side entries in violation of § 75.360(a)(1). Tr. 723-724.34
Fazzalore did not know who the pre-shift examiner was and never spoke to him. Tr. 741.
Fazzolare determined that undiscovered hazards, including but not limited to the wide
entry contributing to a roof fall hazard, would affect nine miners on the unit. Tr. 732-33.
Fazzolare also testified that methane gas buildup was another concern in the absence of a
pre-shift inspection. Tr. 732. The Secretary argues that Fazzolare’s determination regarding the
likelihood and severity of injury was reasonable, particularly given the history of roof falls at the
WLPM. Tr. 730.
Fazzolare testified that he could have cited the condition as a violation of section
75.360(f) because of the absence of the DTIs. Tr. 724.35 Fazzolare testified that the hazard of
not having DTIs in place is that miners would not know whether a pre-shift examination has
been performed or whether hazards exist in a particular area of the mine. Tr. 730. When asked
by the undersigned, why he did not cite § 75.360(f), Fazzolare testified that “[o]nce I found the
wide spot in the entry, I was convinced that no pre-shift had been performed in them three
entries.” Tr. 751-52.
Respondent argues that Order 8428701 should be designated as non-S&S and unlikely
because the citation issued for the wide #1 entry was designated non-S&S and unlikely. The
Secretary counters that the failure to discover hazardous conditions must be viewed in the
context of continued mining operations, and the wide-entry citation was issued before Fazzolare
discovered the failure to perform the pre-shift examination, and it was a contributing factor in
Fazzolare’s S&S designation for Order 8428701. Tr. 750-51.
33

34

Section 75.360(a)(1) requires as follows:
Except as provided in paragraph (a)(2), of this section, a certified
person designated by the operator must make a preshift examination
within 3 hours preceding the beginning of any 8-hour interval during
which any person is scheduled to work or travel underground. No
person other than certified examiners may enter or remain in any
underground area unless a preshift examination has been completed
for the 8-hour interval. The operator must establish 8-hour intervals
of time subject to the required preshift examinations.

35

Section 75.360(f) requires as follows:
At each working place examined, the person doing the preshift
examination shall certify by initials, date, and the time, that the
examination was made. In areas required to be examined outby a
working section, the certified person shall certify by initials, date, and
the time at enough locations to show that the entire area has been
examined.

36 FMSHRC Page 1742

Fazzolare determined that Respondent’s negligence was high and the violation was an
unwarrantable failure because he determined that the preshift examiner, an agent of the operator,
made a conscious decision not to do the pre-shift and no one on his shift knew of any hazards.
Tr. 735. Fazzolare determined that the hazard within the #1 entry was obvious, existed for at
least one shift, and would have been noticed by an examiner had a pre-shift been conducted. Tr.
728- 31; P. Ex. 39, at 3 and 12.
During the third day of hearing, the Secretary moved to plead in the alternative that the
conditions set forth in Order No. 842870 also violated section 75.360(f). Tr. 736, 738. The
undersigned initially denied the motion because it should have been made at the outset of the
hearing, particularly since the Secretary was aware through pre-trial conference calls that the
Order essentially involved a credibility dispute as to whether a pre-shift was done (Tr. 739), and
the allegation that there were no DTIs could be substantially different from the allegation that no
preshift examination was done, particularly in the context of the unwarrantable failure
designation. Tr. 738. At the conclusion of the hearing, however, the undersigned reconsidered,
granted the motion to amend, and issued a bench decision, which vacated Order No. 8428701 on
credibility grounds under either standard. Tr. 1056.
As further explained below, the undersigned credited the testimony of third-shift mine
examiner Norman Risley, that he conducted a pre-shift examination of the right-side rooms, the
left-side rooms, and the panel entries (Tr. 758); that Risley walked to each face, checked for
methane or other gas, examined the bolts, roof and ribs, and ensured that ventilation curtains
were hung (Tr. 759); and that Risley wrote the date and time and his initials on a paper tag that
was hung from a roof bolt with wire at each entry. Tr. 759-60; see also R. Ex. 6 (statement
given to compliance manager Grounds the next day). The undersigned also credited scoop
operator Tim Whiting’s testimony, which partially corroborated Risley’s testimony that he hung
the tags, because Whiting credibly testified that he saw Risley do so at the number 3 face. Tr.
770-71, 775. Finally, the undersigned credited the testimony of all of Respondent’s witnesses
that they saw Risley in the right-side rooms. See generally Tr. 1056-57.
b.

Respondent’s Evidence

Third-shift certified mine examiner, Norman Risley, credibly testified that during the
midnight shift of May 9, 2011, he conducted a pre-shift examination of the right-side and left
side faces and set of rooms on Unit 5. Tr. 754-58. Risley also pre-shifted the two rescue
chambers, the power center, transformer, and the tailpiece on Unit 5. Tr. 759.
Risley was required to conduct his examination within three hours of the start of the
oncoming day shift, which began at 7:00 a.m. Accordingly, Risley began his pre-shift
examination about 4:00 a.m. Tr. 723, 727-28, 756-57.
Risley credibly testified that he examined the right-side rooms, the left-side rooms, and
the panel entries. Tr. 758. Risley walked to each face, checked for methane or other gas,
examined the bolts, roof and ribs, and ensured that ventilation curtains were hung. Tr. 759. At

36 FMSHRC Page 1743

each entry, Risley wrote the date and time and his initials on a paper tag that was hung from a
roof bolt with wire. Tr. 759-60; R. Ex. 6 (statement given to compliance manager Grounds the
next day). When asked by the undersigned whether he specifically remembered hanging the
tags, Risley testified affirmatively and recalled that he asked scoop operator Tim Whiting to
move out of his way so he could get to a face to hang a tag. Tr. 760-61.
On direct examination, Risley was shown Respondent’s Exhibit 11. That exhibit was a
section 104(a) citation that inspector Fazzolare wrote under 75.220(a)(1) for failure to follow the
approved roof control plan because the no. 1 entry exceeded the 20-foot width set forth in the
plan by approximately one and three quarter feet over a six-foot distance. Risley testified that he
never noticed the condition during his examination. Tr. 761.
Risley had left the mine for the day by 9:30 a.m., i.e., the time Fazzolare wrote the Order
(P. Ex. 38) alleging a violation of 75.360 (a)(1) because there was no evidence of a pre-shift
examination conducted for the right side rooms on Unit 5 for the day shift production crew. Tr.
763. The next day, compliance manager Grounds spoke to Risley about the Order in the
examiner’s room where Respondent keeps its books. Tr. 76-62. Risley told Grounds that it was
a bunch of bull because Risley made the rooms and that Grounds should check with Whiting,
who was present at the time. Tr. 762-63. The Secretary’s cross of Risley was minimal, with
little value. Tr. 765.
Scoop operator Whiting credibly testified that he was working the midnight or third shift
(11 p.m. to 7 a.m.) on May 8-9, 2011, when he observed Risley conduct a pre-shift examination
of the right-side rooms on Unit 5. Tr. 766-69. Whiting was sitting in his scoop in the no. 3 room
waiting to clean that room after the roof bolters finished bolting a fresh cut. Tr. 769-70. While
waiting there, Whiting saw Risley walk by and into the entry of the no. 3 room, conduct his
examination, and hang a paper tag with wiring on a roof bolt plate to post DTIs. Tr. 770-71,
775. From where he was sitting, Whiting could not see the no. 1 and 2 rooms. Tr. 771.
As Risley apparently continued his examination of the other right-side rooms, section
foreman Keith Hawkins instructed Whiting to go outby and grab the wet duster and start dusting
the faces. Tr. 771-72. Whiting then used the scoop to run the hydraulically operated wet duster
on the right and left-side rooms. Whiting received assistance from left-side scoop operator, Nick
Courtney, who operated the hose. Tr. 772-73.
After the Order was written by Fazzolare, Risley told Whiting about it, presumably the
next day. Whiting testified that Risley appeared upset and told Whiting that he had made the
examination. Tr. 773-74. Whiting told Risley that Whiting saw him hang a tag in the no. 3
room. Whiting offered to vouch for Risley before compliance manager Grounds. Tr. 773-74.
On the basis of the record before me, I have no basis to conclude that they conspired to produce
false testimony under oath.
Grounds took a statement from Whiting the day after the Order was issued. R. Ex. 8.
Whiting confirmed the accuracy of the statement except for the last notation, which states that

36 FMSHRC Page 1744

Risley “was going toward the face of Room #3 to make his examination.” Id. Whiting testified
that he watched Risley actually walk up to the no. 3 face to hang the tag. Tr. 775. In the absence
of any impeachment or effective cross examination on this issue, I credit Whiting.
Whiting expressed the belief that the pressure from the dust and water that came out of
the wet duster blew the tag(s) down. Tr. 775-76. On cross, Whiting acknowledged that the tags
might still be present on the mine floor, although equipment ran through the area. He further
acknowledged that the wires “would probably still be there.” Tr. 775-76. The Secretary argues
that this is significant because neither Fazzalare nor the two employees who accompanied him
could find any wires, tags, or other evidence of DTIs for the prior shift in the three entries on the
right side. Tr. at 724-26, 729, 731, 735, 751. Thus, the Secretary argues that the lack of DTIs on
the right side for the prior shift establishes a violation of section 75.360(f).
Section foreman Keith Hawkins also testified that he observed Risley make an
examination of the right-side rooms of Unit 5 on the morning in question. Tr. 779-80. Hawkins
was checking on repairs to the miner that were made between 3:15 and 4:30 a.m. (R. Ex. 4).
Hawkins was engaged in conversation with shift leader Cliff Dillard and Whiting in the
intersection of entry no. 1 and room no. 3, when he observed Risley walk by and use a spotter to
make the face in the right-side rooms. Tr. 780-81, 786. Hawkins did not observe whether
Risley hung any tags. Tr. 782.
The next day, when Hawkins heard about the Order, he went to see Grounds to tell him
that Hawkins had seen Risley go up in the face and use a spotter. Tr. 783. Hawkins testified that
R. Ex. 7 accurately reflects the conversation he had with Grounds. The Secretary declined to
cross examine Hawkins. Tr. 783.
Shift leader Dillard also testified that he observed Risley conduct a pre-shift examination
of the right set of rooms of Unit 5 during the midnight shift on May 8-9, 20011. Tr. 785-86.
Dillard corroborated Hawkins’s testimony that they were talking in the intersection of entry no. 1
and room no. 3. Dillard testified that he saw Risley walk out of the no. 1 room and across the no.
2 room, and then out past Dillard and Hawkins and end up in the no. 3 room. Dillard specifically
testified that he saw Risley go in and out of each of the three rooms on the right side, but did not
see Risley hang any tags. Tr. 786, 788-89.
Dillard testified that Hawkins told him about the Order the next day and Dillard was
shocked because he saw Risley there the day before to make the examinations. Tr. 786-87.
Dillard testified that Risley would typically hang his DTIs on a roof bolt in the second row from
the face on the right or return air side of the entry where an air reading was taken. Tr. 789.
Dillard confirmed that Respondent’s Exhibit 9 was an accurate statement of what was
discussed with Grounds on May 10, 2011. Tr. 787. Respondent’s Exhibit 9 states, inter alia,
that “[i]f the examiner tags are not twisted, the wet duster can knock the tags down from the roof
bolt plates.” Neither the Secretary nor Respondent ever asked Risley whether he twisted the
tags.

36 FMSHRC Page 1745

Compliance manager Grounds testified that Respondent’s walkaround representative
Vernon Dunn called the surface and informed Grounds that inspector Fazzolare was going to
issue the Order. Tr. 791. Grounds spoke with members of the crew the next day and prepared
written statements from Risley, Hawkins, Whiting, and Dillard. Tr. 791-92; see also R. Exs. 6-9.
After the interviews, Grounds concluded that Risley had conducted the pre-shift examination of
the right-side rooms on unit 5 during the third shift on May 9, 2011. Accordingly, Risley did not
receive any discipline. Tr. 792.
On cross, Grounds testified that he did not go underground to check on the condition
cited in the Order. Rather, Grounds spoke with Dunn, who informed him that no initials were
identified or tags found on the right side, but DTIs had been identified on the left side. Tr. 79495.
On rebuttal, and in support of the Secretary’s alternative pleading, inspector Fazzolare
testified that he issued Order 8428701 because he could find no evidence of a pre-shift or DTIs
in the 3 entries on the right side. Tr. 797-98. Fazzolare testified that he did see enough DTIs in
the left side entries and the advanced entries to ensure that Respondent had pre-shifted those
areas. Tr. 798, 802. He further testified that in his experience, it was unlikely that a tag wired to
a roof bolt would fall down, and that it was “impossible” for all three tags to have disappeared.
Tr. 798-99. Fazzolare further testified that if a wet duster caused a tag to fall down, the wire
would be left on the roof bolt, and he did not see any evidence of that. Tr. 799.
Respondent declined to cross examine Fazzolare on rebuttal.
In response to questioning from the bench, Fazzolare testified that he traveled with Dunn
to the face in each of the rooms on the right side. After discovering the wide spot in the last
room, Fazzolare asked Dunn to help him find the DTIs to show that the examiner had been there.
Fazzolare told Dunn that if you can find one set of DTIs (in the right side rooms), I will not issue
the Order. Tr. 799-800.
The Secretary argues that at most, Respondent’s witnesses established that Risley made a
pre-shift examination of the left side and main set of entries and the #3 entry on the right side.
Although several of Respondent’s witnesses saw Risley in the three right-side entries, none saw
Risley hang a tag in the #1 and #2 entries and none testified as to the length of time Risley was
in each of these entries. Tr. 770-71, 773, 775, 782, 786-88, 792. The Secretary argues that
Respondent’s witnesses failed to refute Fazzolare’s testimony regarding the absence of the tags
or other DT&Is in the right-side entries. Thus, the Secretary argues that the evidence, even
considered in the light most favorable to Respondent, shows a violation of section 75.360(f) for
the #1 and #2 right-side entries. Given Risley’s failure to identify the excessive width in the #1
entry as a hazardous condition, the Secretary further argues for a violation of section
75.360(a)(1). Tr. 724, 729-30, 761.

36 FMSHRC Page 1746

3.

Legal Analysis

As noted, at the close of the hearing, the undersigned granted Respondent’s motion to
vacate Order No. 842870 and found that no violation of section 75.360(a)(1) or section 75.360(f)
had occurred. Tr. 1056-57. I credited Risley’s testimony that he conducted a pre-shift
examination of the right-side rooms, which was corroborated by all of Respondent’s witnesses.
Tr. 1056. I further credited Risley’s testimony that he hung tags denoting his DTI’s in the
right-side rooms, which testimony was partially corroborated by Whiting, who observed him
hang one such tag at the number 3 face. Tr. 1056. Having reviewed the record, I reaffirm my
credibility findings and also credit section foreman Hawkins that he saw Risley walk by and use
a spotter to make the face in the right-side rooms. Tr. 780-81, 786.
The fact that the DTI’s were not present when Fazzolare conducted his inspection at 9:30
a.m. does not establish that Risley did not hang the tags when he conducted his examination
about 4 a.m. On questioning from the undersigned, Risley specifically testified that he hung all
three tags on the right-side entries. Tr. 760. Whiting corroborated Risley’s testimony for the
right-side number 3 room. Tr. 770. It is conceivable, given the use of the wet rock duster after
Risley conducted his examination, that the tags were blown down due to the pressure of the
machine combined with the heavy mixture of dust and water it sprays. Tr. 775.
I find it possible that the pressure or force from the mixture of dust and water emanating
from the wet duster after Risley conducted his examination blew the paper tags down and
rendered them irretrievable, especially if the tag wires were not twisted in place. Tr. 775. It was
certainly not impossible, as Fazzolare testified, particularly with equipment running through the
area and the pressure of the machine combined with the heavy mixture of dust and water that it
sprays. Tr. 775-76. While the wires would probably still be there, the Secretary failed to
establish the exhaustiveness or specific location of Fazzolare’s search for said wires. As
Fazzolare acknowledged, “[o]nce I found the wide spot in the entry, I was convinced that no preshift had been performed in them three entries.” Tr. 751-52. In my view, Fazzolare had made
up his mind that no pre-shift had been performed and did not diligently search for the DTIs or
attempt to speak to the examiner Risley.
Clearly, Fazzolare relied on his issuance of Citation No. 8426700, which alleged that the
no.1 room was wide by less than two feet for a distance of six feet in length, as evidence that no
pre-shift examination was performed. Tr. 728; R. Ex. 11. Such reliance is suspect. It is likely
that the cited area was mined after Risley conducted his examination because it was inby the last
open crosscut and mined recently. The Secretary failed to show that the condition was present
when Risley was scheduled to conduct his pre-shift examination. Tr. 748. The mere fact that
Fazzolare observed the condition cited in Citation No. 8428700 does not establish that Risley did
not conduct the examination, particularly when Risley and essentially four other witnesses
confirmed that he did.
I was convinced during the hearing by Risley’s demeanor and clear and adamant
testimony upon questioning from the undersigned that he conducted a pre-shift examination of

36 FMSHRC Page 1747

the right-side rooms and that he hung three tags denoting his DTI’s in the right-side rooms. Tr.
760. Risley’s testimony that he examined the right-side rooms was corroborated by Whiting,
Hawkins and Dillard, each of whom observed him do so. Tr. 770, 779-80, 786. Risley’s
testimony that he made the examinations by DTI’s is partially corroborated by Whiting, who
observed him hang a tag at the number 3 face. Tr. 770, 775. Accordingly, I reaffirm my bench
decision and vacate Order No. 842870.
VII. Order
WHEREFORE, the parties’ joint settlement motion and agreement made on the record
and set forth in Joint Exhibit 2 is GRANTED. It is ORDERED that Citation/Order Nos.
8030991, 8030700, 8428798, and 8428776 be modified to reduce the level of negligence from
“high” to “moderate;” Citation No. 8030992 be modified to reduce the level of negligence from
“moderate” to “no negligence;” Citation Nos. 8436403, 8030992, 8428798, and 8428776 be
modified to reduce the likelihood of injury or illness from “reasonably likely” to “unlikely,” and
to delete the significant and substantial designation; and Order No. 8030700 be modified to
change the type of action from a section 104(d)(2) order to a section 104(a) citation; and that
Citation Nos. 8428701, 8431251, and 8431250 be vacated. It is further ORDERED that the
operator pay an a penalty of $116,662 for all litigated citations and $192,754 for all settled
citations for a total penalty of $309,376 within thirty days of this order.36

/s/ Thomas P. McCarthy
Thomas P. McCarthy
Administrative Law Judge

Payment should be sent to: Mine Safety & Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
36

36 FMSHRC Page 1748

Distribution:
Letha Miller, Esq. & Breyana Penn, Esq., Office of the Solicitor, U.S. Department of Labor,
1999 Broadway, Suite 800, Denver, CO 80202-5710
Arthur M. Wolfson, Esq. & Jason P. Webb, Esq., Jackson Kelly, PLLC, Three Gateway Center,
401 Liberty Ave., Suite 1500, Pittsburgh, Pennsylvania 15222

36 FMSHRC Page 1749

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
TH
721 19 STREET, SUITE 443
DENVER, CO 80202-2536
TELEPHONE: 303-844-3577 / FAX: 303-844-5267

June 20, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
GORDON SAND COMPANY
Respondent

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CIVIL PENALTY PROCEEDING
Docket No. WEST 2014-47-M
A.C. No. 04-01787-332496

Gordon Sand Company

DEFAULT DECISION
This case is before me upon a petition for assessment of civil penalty under Section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Act").
The case involves four citations issued under section 104(a) and a proposed civil penalty of
$400.00. A conference call was scheduled in this case on May 14, 2014, but Gordon Sand
Company chose not to participate in the call. A conference call is equivalent to a court
appearance and is especially important in a case designated for Simplified Proceedings. Gordon
Sand Company also failed to file an answer or enter its appearance in this case, as required
Commission Procedural Rule 102(c), which would have provided me with critical contact
information. 29 C.F.R. § 2700.102(c).
On May 14, 2014, I issued an order to show cause against Gordon Sand Company. In the
show cause order I directed Gordon Sand Company to explain why it should not be held in
default for its failure to participate in the conference call and enter its appearance in the case. I
warned Gordon Sand that its failure to file a satisfactory response to my order by June 11, 2014,
would result in an entry of default against Gordon Sand and the assessment of the Secretary’s
proposed penalty of $400.
Gordon Sand Company failed to respond to my order to show cause.1 Consequently,
Gordon Sand Company is in DEFAULT. 29 C.F.R. § 2700.66. The four citations at issue are
AFFIRMED as written by the MSHA inspector. I have reviewed the citations and the six
penalty criteria in Section 110(i) of the Act. Based on this review I find that the penalties

1

The order to show cause was sent to Gordon Sand Company via certified mail. The
return receipt card was returned to the Commission with the signature of one of its agents dated
May 19, 2014. I also note that in another case, Gordon Sand Company failed to appear at a
scheduled hearing and I held the company in default. Gordon Sand Company, 30 FMSHRC 235
(March 2008).

36 FMSHRC Page 1750

proposed by the Secretary are reasonable and are hereby AFFIRMED. Gordon Sand Company
is ORDERED TO PAY the Secretary of Labor the sum of $400.00 within 30 days of the date of
this decision.2

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

Distribution:
D. Scott Horn, Conference & Litigation Representative, Mine Safety & Health Administration,
991 Nut Tree Road, 2nd Floor, Vacaville, CA 95687 (First Class Mail)
George E. Gordon III, Gordon Sand Company, 28310 Industrial Blvd, Suite F, Hayward, CA
94545-4436 (Certified Mail)
RWM

2

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

36 FMSHRC Page 1751

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

June 23, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
SAIIA CONSTRUCTION, LLC,
Respondent.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
FREDERICK LOONEY, Agent of SAIIA
CONSTRUCTION, LLC,
Respondent.

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CIVIL PENALTY PROCEEDINGS
Docket No. SE 2010-877-M
A.C. No. 01-02985-220540 (1KJ)

Mine: Omya Alabama Plant
Docket No. SE 2012-119-M
A.C. No. 01-02985-272123A

Mine: Omya Alabama Plant

DECISION
Appearances: Melanie L. Paul, Esq., Office of the Solicitor, Atlanta, Georgia, for
Petitioner;
John Hargrove, Esq., Bradley Arant Boult Cummings, LLP, Birmingham,
Alabama, for Respondents.
Before:

Judge Paez

This case is before me upon the petitions for assessment of civil penalty filed by the
Secretary of Labor (“Secretary”) pursuant to sections 105(d) and 110(c) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §§ 815(d), 820(c). In dispute are one section 104(d)(1)
citation issued to Saiia Construction, LLC (“Saiia”) and a companion section 110(c) penalty
assessment issued to Frederick Looney (“Looney”), alleging his personal liability as an agent of
Saiia. To prevail, the Secretary must prove his charges “by a preponderance of the credible

36 FMSHRC Page 1752

evidence.” In re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819,
1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)),
aff’d sub nom., Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096, 1106–07 (D.C.
Cir. 1998). This burden of proof requires the Secretary to demonstrate that “the existence of a
fact is more probable than its nonexistence.” RAG Cumberland Res. Corp., 22 FMSHRC 1066,
1070 (Sept. 2000) (citations and internal quotation marks omitted), aff’d, 272 F.3d 590 (D.C. Cir.
2001).
I. STATEMENT OF THE CASE
The single alleged safety violation in this case was issued to Saiia as a contractor at the
Omya Alabama Plant limestone quarry on March 31, 2010. Citation No. 8546029 charges Saiia
with a violation of 30 C.F.R. § 56.14100(c) for operating a front-end loader with safety defects in
the stockpile area.1 The Secretary designated the citation as significant and substantial (“S&S”)2
and as the result of Saiia’s unwarrantable failure3 to comply with a mandatory health or safety
standard. In addition, the Secretary characterized Saiia’s level of negligence as high and
proposes a penalty of $12,563.00. Lastly, the Secretary proposes that Looney pay a penalty of
$3,900.00 under section 110(c) of the Mine Act in connection with Citation No. 8546029.
Chief Administrative Law Judge Robert J. Lesnick assigned Docket Nos. SE 2010-877M and SE 2012-119-M to me, and I held a hearing in Birmingham, Alabama.4 The Secretary
presented testimony from MSHA Inspector DeWayne Ogden, retired MSHA Inspector Harry

1

Section 56.14100(c) provides:

When defects make continued operation hazardous to persons, the defective items
including self-propelled equipment shall be taken out of service and placed in a
designated area posted for that purpose, or a tag or other effective method of
marking the defective items shall be used to prohibit further use until the defects
are corrected.
30 C.F.R. § 56.14100(c).
2

The S&S terminology is taken from section 104(d)(1) of the Mine Act, 30 U.S.C. §
814(d)(1), which distinguishes as more serious any violation that “could significantly and
substantially contribute to the cause and effect of a . . . mine safety or health hazard.”
3

The unwarrantable failure terminology is taken from section 104(d)(1) of the Mine Act,
30 U.S.C. § 814(d)(1), which establishes more severe sanctions for any violation that is caused
by an “unwarrantable failure of [an] operator to comply with . . . mandatory health or safety
standards.”
4

In this decision, the hearing transcript, the Secretary’s exhibits, and Oak Grove’s
exhibits are abbreviated as “Tr.,” “Ex. G–#,” and “Ex. R–#,” respectively. The parties also
admitted a list of stipulations in a joint exhibit, which is abbreviated as “Ex. J–1.”

36 FMSHRC Page 1753

Wade, MSHA Mechanical Engineer James L. Angel,5 Saiia front-end loader operator Steve
Honeycutt, Saiia Supervisor Frederick Looney, and Thompson Tractor Company Field Service
Advisor Stephen Sadler. Saiia and Looney (collectively, “Respondents”) presented testimony
from Thompson Tractor Company Technical Communicator Mark Schropp, Thompson Tractor
Company Field Service Technician David Coston, and Saiia Safety Manager Richard Leemhius.
The parties filed closing briefs. Respondents also filed a reply brief.
II. ISSUES
The Secretary argues that the condition of Saiia’s front-end loader was properly cited as a
violation, that the allegations underlying the citation are valid, and that the penalty he has
proposed for Saiia is appropriate. (Sec’y Br. at 6–21, 23–24.) The Secretary also contends that
his charges and proposed penalty under section 110(c) are valid and appropriate. (Id. at 21–25.)
In contrast, Respondents dispute the fact of violation, the Secretary’s allegations regarding
gravity and negligence, and the section 110(c) charges against Looney. (Resp’t Br. at 5–14;
Resp’t Reply at 2–4.)
Accordingly, the following issues are before me: (1) whether the cited condition violated
the Secretary’s mandatory health or safety standards regarding mobile equipment; (2) whether
the record supports the Secretary’s assertions regarding the gravity of the alleged violation,
including whether it is S&S; (3) whether the record supports the Secretary’s assertions regarding
Saiia’s negligence, including the unwarrantable failure determination, in committing the alleged
violations; (4) whether the record supports holding Frederick Looney liable under section 110(c);
and (5) whether the Secretary’s proposed penalties against Saiia and Looney are appropriate.
For the reasons set forth below, Citation No. 8546029 is AFFIRMED as S&S, as an
unwarrantable failure, and resulting from Saiia’s high negligence, and MODIFIED to reduce the
likelihood of injury to “reasonably likely.” Additionally, the section 110(c) charges against
Frederick Looney are AFFIRMED.
III. FINDINGS OF FACT
A.

Saiia’s Operations at the Omya Alabama Plant

Saiia is a contractor for the Omya Corporation and removes overburden and limestone
material at the Omya Alabama Plant limestone quarry. (Tr. 39:24–40:5, 248:18; Ex. G–6 at 6.) In
February and March 2010, Saiia operated a Catepillar (“CAT”) 966H front-end loader five days
a per week to scoop material, move it from place to place, and load haul trucks in the “off-road”
5

Wade and Angel testified via telephone. (Unpublished Order at 2 (May 3, 2013);
Unpublished Order at 2 (May, 8, 2013).) In addition, Angel was qualified as an expert “in the
field of safe operation of diesel-fueled[,] earth[-]moving machines.” (Tr. 173:12–174:3.)

36 FMSHRC Page 1754

area of the mine. (Tr. 48:8–15, 50:24–51:25, 52:9–21, 54:16–55:4, 97:17–23, 114:7–10, 116:19–
25.)
At the time, the “off-road” area was used as a storage area for limestone material between
the quarry’s pit and plant areas. (Tr. 52:9–53:5.) The off-road area was gravelly, with large
rocks—also known as pinnacles—embedded in the ground and protruding between two and six
inches above the surface. (Tr. 63:24–64:24, 114:23–24; Ex. G–1.) The area also contained large
loose rocks. (Tr. 65:1–2.) These pinnacles and loose rocks would cause the loader to bounce,
sway, or loose traction. (Tr. 64:12–15, 65:2–7.) In addition, the off-road area included at least six
stockpiles of wet limestone material that were approximately ten-feet high. (Tr. 53:2–12, 86:13.)
The off-road area was slightly graded and included elevated berms. (Tr. 53:25–54:12, 62:19–23.)
Saiia rented this CAT loader from Thompson Tractor on February 16, 2010. (Ex. J–1; Ex.
G–12.) According to the rental agreement, Thompson Tractor performed all required
maintenance on the loader. (Ex. G–12; Tr. 152:21–153:1, 207:13–208:4.) However, Saiia was
permitted to make minor repairs to the loader, such as replacing broken hoses. (Tr. 153:2–10,
154:2–4, 154:24–155:5.) Saiia maintenance man Jamie Minton was responsible for coordinating
Thompson Tractor’s maintenance activities at the Omya Alabama Plant. (Tr. 140:6–25, 147:3–
11, 148:3–11, 293:11–14.)
The loader was approximately thirty-five-feet long, fifteen-feet high, and ten-feet wide.
(Tr. 51:3–17.) Using an eight-to-ten-foot-wide bucket, the loader operator picked up material and
moved it from one place to another. (Tr. 51:14–19, 56:2–18, 115:3.) The loader traveled
approximately ten or fifteen miles per hour in open areas, but it slowed to five or ten miles per
hour when moving between stockpiles or transporting material. (Tr. 55:20–56:1.)
The loader’s steering assembly includes both a steering wheel and a steering column,
which are distinct parts of the steering assembly. (See, e.g., Tr. 177:7–178:24.) The steering
wheel sat atop the steering column, and the steering column was generally locked into place. (Tr.
177:22–178:24.) According to the CAT loader’s Operation and Maintenance Manual, the
steering column requires service if the column itself is capable of moving more than one inch in
any direction. (Ex. J–1.)
B.

Mine Inspection – March 31, 2010

In response to hazard complaints regarding the safety of mobile equipment, Inspector
DeWayne Ogden performed an inspection of the Omya Alabama Plant on March 31, 2010.
(Tr. 39:13–23.) Ogden informed Omya and Saiia management of the reason for his investigation,
then examined Saiia’s preshift examination records. (Tr. 40:14–41:9.) In his review, Ogden
noted that the steering column on the CAT loader had been listed as “loose” or “broken” several
times beginning in mid-February 2010. (Tr. 41:11–16, 42:6–44:7, 100:11–101:25, 105:16–
110:20; Ex. G–2.)

36 FMSHRC Page 1755

Ogden then met with the loader operator who had prepared these reports, Steve
Honeycutt. (Tr. 44:8–11.) After climbing up onto the machine, Ogden discussed the preshift
reports and condition of the loader with Honeycutt. (Tr. 44:22–45:3, 117:14–22.) At that point,
Honeycutt shook the steering column to demonstrate the lateral amount of movement in the
column. (Tr. 45:1–3, 117:23–118:4.) Although Ogden did not measure the movement, he
estimated it to be approximately six inches from center to one side. (Tr. 46:7–13.) Honeycutt
testified that the movement was four or five inches. (Tr. 102:10–11, 104:15–23, 109:9–12,
126:17–127:4, 127:19–128:23; Ex. G–13.)
Ogden then spoke with Supervisor Looney and asked if he was aware of the condition.
(Tr. 47:15–18.) According to Ogden, Looney indicated that he was aware of the movement in the
steering column but did not remove it from service because he had no other loader available for
use.6 (Tr. 47:18–23.) Ogden then discussed the condition of the loader with Thompson Tractor
Field Technician Coston, who was at the Omya Alabama Plant site to work on another piece of
mobile equipment. (Tr. 48:8–21, 274:11–13; Ex. G–14.) After Coston observed Honeycutt move
the steering column, Ogden testified that Coston agreed that the loader was unsafe for operation.7
(Tr. 48:22–49:7, 49:20–50:5; Ex. G–14.)
Ogden also sought input from Inspector Wade, who was also already present at the Omya
Alabama Plant to investigate a highwall failure. (Tr. 47:24–48:7, 80:13–81:2.) Wade observed
Honeycutt move the steering column and testified that the column moved approximately six to
eight inches from center to side. (Tr. 49:20–50:4, 81:10–82:6.) According to Wade, Supervisor
Looney told him that Saiia did not want to spend money to repair the loader because it was a
rental. (Tr. 83:16–22.)

6

Looney does not dispute that he was aware of the condition. (Tr. 133:6–22;Ex. J–1.)
However, he personally operated the loader in February and March 2010. (Tr. 139:12–15,
142:19–145:5, 145:25–146:2, 149:18–22, 151:23–25.) He testified that he did not remove the
loader from service because he did not believe the loader to be unsafe. (Tr. 141:4–10, 145:11–13,
146:9–19, 149:9–25; Ex. J–1.) He also testified that he informed Saiia’s maintenance man, Jamie
Minton, about the condition of the loader every time Honeycutt reported it. (Tr. 148:3–8,
150:25.)
7

At the hearing, Coston agreed that he observed wear in the pins and bushings of the
steering column, as well as side-to-side movement in the column itself. (Tr. 261:20–262:15,
267:23–268:20.) However, Coston claimed that Ogden told him “I know this machine has some
problems. . . . [D]on’t tell me there is nothing wrong with it.” (Tr. 261:8–12.) Coston also stated
that he did not tell Ogden that the loader was unsafe to operate. (Tr. 263:1–3, 270:14–17.)
Instead, Coston claims that he said it was up to the inspector. (Tr. 262:14–17.) Nevertheless,
Coston admitted that the steering column’s movement required repair and stated that it could
present a safety hazard in certain circumstances. (Tr. 273:11–274:5; Ex. G–14.)

36 FMSHRC Page 1756

As a result of this inspection, Ogden issued a section 107(a) imminent danger order
directing Supervisor Looney to remove the loader from service. (Ex. G–1.) He also issued
Citation No. 8546029, which alleged the following:
The Caterpillar 966H front[-]end loader (S/N: A6D1193) in the off[-]road
stockpile area was being operated with a defect affecting safety and was not taken
out of service. The defective steering components exposed the loader operator to
fatal injuries when they failed. The Caterpillar certified technician inspected the
steering on the loader and stated that it was unsafe to operate. The loader was
used daily, at least 5 times a week, to maintain the stockpiles in the off[-]road
area. Frederick Looney, Supervisor[,] stated that he knew this condition existed
and it has been reported to him 4 separate times on pre-operational checks.
Frederick Looney, Supervisor[,] engaged in aggravated conduct constituting
more than ordinary negligence. This is a[n] unwarrantable failure to comply with
a mandatory standard. This violation is a factor cited in [an] imminent danger
[order].
(Id.) Ogden marked “fatal” injuries as “highly likely,” designated the violation as S&S, and
characterized Saiia’s level of negligence as “high.” (Id.)
On April 15 and 16, 2010, Saiia, Thompson Tractor, and their counsel met at Thompson
Tractor’s facility in Shelby County. (Tr. 196:6–14, 203:16–204:15, 210:12–220:20; Ex. R–9.)
Safety Manager Leemhius and Technical Communicator Schropp testified that the group
performed a self-examination of the CAT loader. (See, e.g., Tr. 210:12–220:20.) According to
Leemhius and Schropp, they measured the movement of the steering column, took timing tests of
the steering wheel’s responsiveness, and produced videos of the loader in operation in Thompson
Tractor’s parking lot.8 (See, e.g., Tr. 210:12–220:20; see also Ex. R–12; Ex. R–13.)

8

I have significant concerns regarding the veracity of Saiia’s mid-April examinations
because no MSHA personnel were present for Saiia’s self-examination of the CAT loader. Saiia
claims to have made no repairs to the loader between the time of the citation and the April 15
and 16 self-examination. (Resp’t Br. at 3.) Saiia also claims to have invited MSHA to this
examination in an undated, unsigned letter and fax. (See Resp’t Br. at 3; Ex. R–2; Tr. 278:20–
279:5.) Curiously, Respondents did not explain why Saiia—which was represented by counsel at
the time—did not document the delivery of the invitation to MSHA. Regardless of whatever
miscommunication occurred, MSHA was not present for these examinations. I recognize and
appreciate Respondents’ representation that no repairs had been made to the loader. Yet without
MSHA personnel present to observe these tests or the loader itself, the results of Saiia’s selfexamination are sufficiently questionable that I accord them no weight.

36 FMSHRC Page 1757

IV. PRINCIPLES OF LAW
A.

30 C.F.R. § 56.14100(c) – Defects Affecting Safety on Mobile Equipment

Section 56.14100(c) requires operators to (1) remove from service (2) items with defects
(3) affecting safety. 30 C.F.R. § 56.14100(c); see Dix River Stone, Inc., 32 FMSHRC 1779, 1784
(Nov. 2010) (ALJ). A defect is “a fault, a deficiency, or a condition impairing the usefulness of
an object or a part.” Allied Chemical Corp., 6 FMSHRC 1854, 1857 (Aug. 1984) (citing
Webster’s Third New International Dictionary 591 (1971); U.S. Department of Interior, Bureau
of Mines, Dictionary of Mining, Mineral and Related Terms 307 (1968).) Because section
56.14100(c) is a broadly worded safety standard, the Commission applies the “reasonably
prudent person test” to determine whether a “a reasonable person with knowledge of the
particular facts, including facts peculiar to the mining industry, would recognize the existence of
a defect constituting a hazard requiring corrective action . . . .” Lafarge North America, 35
FMSHRC 3497, 3500–01 (Dec. 2013).
B.

Section 110(c) of the Mine Act – Agent Liability

Corporate directors, officers, or agents are liable under section 110(c) when they know or
had reason to know of a violative condition, and fail to act to correct the condition. See 30 U.S.C.
§ 820(c); Cougar Coal Co., 25 FMSHRC 513, 517 (Sept. 2003). Section 110(c) liability “is
generally predicated on aggravated conduct constituting more than ordinary negligence.” Ernest
Matney, 34 FMSHRC 777, 783 (Apr. 2012).
C.

Significant and Substantial Violations

A violation is S&S “if, based on the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
To establish an S&S violation, the Secretary must prove: “(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard—that is, a measure of danger to safety—
contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted);
see also Buck Creek Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135–36 (7th
Cir. 1995) (affirming ALJ’s application of the Mathies criteria); Austin Power, Inc. v. Sec’y of
Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving the Mathies criteria).
The Commission has also provided guidance to Administrative Law Judges in applying
the Mathies test. The Commission indicated that “an inspector’s judgment is an important
element in an S&S determination.” Mathies, 6 FMSHRC at 5 (citing Nat’l Gypsum, 3 FMSHRC
at 825–26); see also Buck Creek Coal, 52 F.3d at 135 (stating that ALJ did not abuse discretion
in crediting opinion of experienced inspector). The Commission has also observed that “the
reference to ‘hazard’ in the second element is simply a recognition that the violation must be

36 FMSHRC Page 1758

more than a mere technical violation—i.e., that the violation present a measure of danger.” U.S.
Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984) (emphasis added) (citing Cement Div.,
National Gypsum Co., 3 FMSHRC 822, 827 (Apr. 1981). Moreover, the Commission clarified
“[t]he correct inquiry under the third element of Mathies is whether the hazard identified under
element two is reasonably likely to cause injury.” Black Beauty Coal Co., 33 FMSHRC 1733,
1742 n.13 (Aug. 2012). Finally, the Commission has specified that evaluation of the reasonable
likelihood of injury should be made assuming continued mining operations. U.S. Steel Mining
Co., 7 FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining Co., 6 FMSHRC 1573,
1574 (July 1984)).
D.

Unwarrantable Failure of Operator to Comply with Mandatory Standards

In Emery Mining, the Commission determined that an unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. 9 FMSHRC 1997, 2001 (Dec. 1987).
Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003–04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 52 F.3d at
136 (approving the Commission’s unwarrantable failure test).
Whether conduct is “aggravated” in the context of unwarrantable failure is determined by
looking at all the facts and circumstances of each case to see if any aggravating factors exist,
such as the length of time that the violation has existed, the extent of the violative condition,
whether the operator has been placed on notice that greater efforts are necessary for compliance,
the operator’s efforts in abating the violative condition, whether the violation is obvious or poses
a high degree of danger, and the operator’s knowledge of the existence of the violation. See
Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Cyprus Emerald Res. Corp., 20
FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest
Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195
(Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc.,
14 FMSHRC 1232, 1243–44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June
1998). These factors are viewed in the context of the factual circumstances of each case, and
some factors may not be relevant to a particular factual scenario. Consolidation Coal Co., 22
FMSHRC at 353. All relevant facts and circumstances of each case must be examined to
determine if an actor’s conduct is aggravated or whether mitigating circumstances exist. Id.
E.

Penalty Assessment – Section 110(i)

Section 110(i) of the Mine Act outlines six criteria I must consider in assessing civil
penalties: the operator’s history of previous violations; the appropriateness of the penalty relative
to the size of the operator’s business; the operator’s negligence; the penalty’s effect on the
operator’s ability to continue in business; the violation’s gravity; and the demonstrated good
faith of the operator in attempting to achieve rapid compliance after notification of a violation.
30 U.S.C. § 820(i). These same section 110(i) factors are also applicable when assessing
penalties in section 110(c) cases. Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1764–66

36 FMSHRC Page 1759

(Aug. 2012). In the section 110(c) context, the “relevant inquiries include whether the penalty
will affect the individual’s ability to meet his financial obligations and whether the penalty is
appropriate in light of the individual’s income and net worth” but should “not include the size of
the mine [or] . . . the penalties levied against the corporation.” Id. at 1764–65.
V. FURTHER FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAW
A.

Further Findings of Fact
1.

Steering Column Movement

At the hearing, the Secretary and Respondents presented conflicting testimony and
evidence regarding the amount of movement found in the CAT loader’s steering column. The
Secretary contends that the steering column moved between four and eight inches from center to
side. (Sec’y Br. at 7–8.) Moreover, the Secretary disputes the veracity of Saiia’s self-examination
on April 15 and 16. (Sec’y Br. at 8–10.) In contrast, Respondents contend that Saiia and
Thompson Tractor’s mid-April self-examination demonstrates that the steering column moved
only one inch from center to side and one inch from front to back. (Resp’t Br. at 3.)
The evidence before me overwhelmingly supports a finding that the CAT loader’s
steering column moved approximately six inches from center to side. First, operator Honeycutt
indicated that the steering column moved between four and five inches and repeatedly marked
the steering column as loose or broken in his preshift reports.9 Second, Inspectors Ogden and
Wade each observed Honeycutt manipulate the steering column from just a few feet away and
estimated that the steering column moved between six and eight inches. Third, Field Technician
Coston characterized the movement of the steering column as “excessive.” (Tr. 270:18–273:2;
Ex. G–14.) Finally, it is uncontroverted that the manufacturer’s instructions suggest replacing the
bushing and pin when movement in the steering column exceeds one inch. (Ex. J–1; Ex. G–5;
Ex. R–3; Ex. R–14.) Indeed, the bushing and pin were replaced in this loader after the issuance
of the citation. (Ex. G–4.) This evidence all strongly suggests that the loader’s steering column
moved between six and eight inches from center to side. Moreover, I have accorded no weight to
Saiia’s mid-April self-examination. See discussion supra footnote 8.
9

Honeycutt repeatedly characterized the amount of movement as four or five inches from
center to side. (Tr. 102:10–11, 104:15–23, 109:9–12, 126:17–127:4.) However, when
Respondents’ counsel asked about the amount of movement, Honeycutt claimed the total amount
of movement from left to right was four or five inches. (Tr. 128:10–22.) This “clarification”
contradicted the bulk of his testimony. Critically, it also contradicted a statement he made during
MSHA’s section 110(c) investigation. (Ex. G–13 (“[Y]ou could move [the steering column] . . .
about 4 or 5 inches in all directions.”) (emphasis added).) Given the evidence before me, I
therefore credit Honeycutt’s testimony that the steering column moved four or five inches from
center to side.

36 FMSHRC Page 1760

In addition, Respondents argue that Inspectors Ogden and Wade did not physically
measure, test, or document the movement of the steering column. (Resp’t Br. at 2–3, 5–6; Resp’t
Reply Br. at 2.) Thus, Respondents contend that the Secretary has not demonstrated that the
steering column moved. (Resp’t Br. at 2–3, 5–6; Resp’t Reply Br. at 2.) I recognize that certain
circumstances may require fine measurements. See Lafarge North America, 35 FMSHRC at
3501–02. Such precision is not necessary in this case. Inspectors Ogden and Wade were standing
just a few feet away when they estimated the steering column’s movement. Given their
proximity to the steering column and the amount of movement they observed, Ogden and Wade
need not have used a tape measure to establish that movement or to confirm it exceeded the oneinch limit that the CAT loader’s manual suggests.
Based on the evidence before me, I therefore find that the steering column moved
approximately six inches from its center position to either side.
2.

Supervisor Looney’s Rationale For Allowing Continued Operation of the
CAT Loader

According to Inspector Ogden, Supervisor Looney indicated that he did not remove the
CAT loader from service because Saiia had no other loader available for use. Additionally,
Inspector Wade claimed that Looney admitted Saiia did not want to spend money to repair the
loader’s steering column because it was a rental. Thus, the Secretary insists that Respondents did
not remove the loader from service and have it repaired for financial reasons. (Sec’y Br. at 18–
19.) In contrast, Looney repeatedly and consistently testified that he did not remove the loader
from service because he had personally operated it and did not believe it was unsafe. (Tr.
139:12–15, 141:4–10, 142:19–145:5, 145:11–13, 145:25–146:2, 146:9–19, 149:9–25, 149:18–
22, 151:23–25.)
Three factors convince me that Looney allowed the loader to continue to operate because
he believed it was safe. First, Looney was a credible and believable witness. As with almost all
operator-agents, Looney had an incentive to provide self-serving testimony. Instead, Looney
neither evaded questions nor equivocated regarding facts that subjected him to liability in this
case. Such candor suggests to me that Looney is a credible witness. Second, loader operator
Honeycutt also credibly testified that he found the loader to be safe. (Tr. 122:11–22, 123:16–21.)
Honeycutt’s opinion—like Looney’s—may not have been objectively reasonable given the facts
of this case. See discussion infra Part V.B.1. Yet, Honeycutt’s opinion supports a finding that
Looney likewise found the loader to be safe. Finally, it is unclear whether Saiia would have been
responsible for any of the relatively small repair charges or that the repairs would have taken
more than a few hours. (Tr. 223:10–14, 254:12–255:5, 298:8–11; Ex. G–4.) In light of these
relatively small or nonexistent costs, I have serious doubts regarding Saiia’s financial incentive
to forgo repairs in this case.
Given the above factors, I credit Supervisor Looney’s testimony that he allowed the CAT
loader to continue in service because he believed the loader remained safe to operate.

36 FMSHRC Page 1761

B.

Citation No. 8546029 – Saiia
1.

Violation

In this case, Inspector Ogden found the CAT loader in operation during his inspection. I
have also found that the loader’s steering column moved approximately six inches from center to
side, and it is uncontroverted that the steering column required repairs. Indeed, operator
Honeycutt characterized the steering column as “broken” several times in his preshift reports. I
therefore determine that the steering column contained a defect and that the loader had not been
removed from service.
Consequently, this case turns on whether a reasonably prudent person with knowledge of
the facts particular to the mining industry would recognize that the steering column’s movement
affected the safety of the loader. At the hearing, Respondents’ counsel repeatedly elicited
testimony regarding timing tests designed to gauge the performance of the steering system. (See,
e.g., Tr. 71:22–72:22.) Respondents claim that the movement in the steering column did not
affect that actual steering system. (Resp’t Br. at 4–5; Ex. G–7 at 5; Ex. G–8 at 6; Ex. G–9 at 6)
Respondents therefore conclude that the steering column movement “cannot affect safety”
because the steering system functioned properly. (Resp’t Reply Br. at 2.)
Nevertheless, Respondents’ argument fundamentally misunderstands the Secretary’s
theory. Regardless of whether the steering wheel would properly engage the loader’s steering
mechanism, the Secretary contends that the movement in the steering column itself affected the
operator’s ability to control the loader when making a sharp turn. (Sec’y Br. at 11; see also Tr.
179:23–180:9, 182:4–183:14, 252:3–12.) The Secretary also argues the conditions found in the
off-road area increased these dangers because they would jostle the steering wheel in the
operator’s hands. (Sec’y Br. at 11; Ex. R–15 at 2.) As MSHA Engineer Angel succinctly
explained:
The thing about mining is that conditions change rapidly, trucks coming
in, stockpiles building up to confine the space of the operation. Because
conditions change, the routine operation of the vehicle, the loader, may
not continue. But the loader operator may get himself into a position
where emergency steering is required, abrupt change of direction is
needed to avoid a truck, to reposition the machine because he’s off
position or something like that. And in that case, the loss of . . . control,
an accident is more likely.
(Tr. 185:25–186:10.) Given the context in which this loader operated, I conclude that the
function of the steering system is irrelevant to whether the movement of the steering column
itself affected safety.
Respondents also note that Honeycutt and Looney found the loader safe to operate.
(Resp’t Br. at 6, 10; Resp’t Reply Br. at 3.) Although I believe both witnesses testified honestly,
see discussion supra Part V.A.2, the question before me is whether a reasonably prudent person
would recognize that the steering column defect constituted a hazard requiring corrective action.

36 FMSHRC Page 1762

Here, the CAT loader operated in a rocky, uneven, and slick stockpile area in tandem with other
pieces of oversized mobile equipment. The area also contained grades and berms. Inspectors
Ogden and Wade and MSHA Engineer Angel each credibly testified that the moving steering
column would affect the loader operator’s ability to maintain control of the machine in this
off-road environment. (Tr. 57:12–58:8, 61:18–62:10, 82:24–83:2, 85:12–18, 86:6–86:18,
180:14–181:9; 185:1–5, 186:3–25.) On the day of the inspection, Thompson Tractor Field
Technician Coston also indicated that in certain circumstances the movement of the steering
column would constitute a safety hazard. (Tr. 273:3–274:5.) Similarly, Saiia Safety Manager
Leemhius conceded that if the steering column was “actually broken,” the condition presented a
safety hazard. (Tr. 300:4–7.)
Looking at the evidence before me, I therefore determine that a reasonably prudent
person familiar with the facts of this case would recognize the existence of a defect requiring
corrective action. Given the mobile equipment, slight grades, and berms present in the stockpile
area, emergency maneuvers could mean the difference between an accident and continued safe
operations. In this environment, a loader operator needs complete control of the machine at all
times. Yet, the loader in question operated in uneven terrain that could jostle a driver’s hands at
precisely the time a quick turn is necessary. Thus, a reasonably prudent person would recognize
that several inches of movement in the steering column presented dangers requiring corrective
action.
In view of the above, the Secretary has demonstrated all three required elements.
Accordingly, I conclude that the movement in the loader’s steering column constitutes a
violation of 30 C.F.R. § 56.14100(c).
2.

Gravity and S&S Determinations

Saiia’s violation of section 56.14100(c) establishes the first element of the Mathies test
for an S&S violation. The second element of the Mathies test asks whether the violation
contributed to a discrete safety hazard; that is, whether the violation provides a measure of
danger to safety. Here, Inspectors Ogden and Wade and MSHA Engineer Angel credibly
testified that the violative conditions contributed to a safety hazard of flipping the loader,
colliding with other pieces of machinery, or overtraveling the berms surrounding the off-road
area. Indeed, in concluding that the movement in the loader’s steering column constituted a
violation, I have determined that a reasonably prudent person would recognize that such
movement in the steering column constituted a defect affecting safety. Similarly, I determine that
the violations contributed to discrete safety hazards of flipping the loader, colliding with other
machinery in the off-road area, and overtravelling the area’s berms. The Secretary has therefore
met his burden of proof on the second element of Mathies.
The third and fourth elements of Mathies ask whether the safety hazard is reasonably
likely to contribute to a reasonably serious injury. The Secretary claims that injuries in this case
are highly likely to be fatal, and I recognize that Ogden issued an imminent danger order in this
case. (Ex. G–1; Tr. 61:18–62:10.) Although the likelihood and severity of injury will be readily

36 FMSHRC Page 1763

apparent in some contexts, see, e.g., Blue Diamond Coal Co., 36 FMSHRC 541, 569 (Feb. 2014)
(ALJ) (indicating that falling mine roof is likely to cause serious or fatal injuries), fatal injuries
are not comparably self-evident in the case before me. Yet, the Secretary provided no details
regarding the height of the berms in question or the size and speed of the haul trucks and other
vehicles operating in the off-road area. Instead, he relies on the opinions of Inspectors Ogden and
Wade to demonstrate that the injuries in this case would be reasonably serious. These are
significant gaps in the Secretary’s case, and I am left to puzzle my way through the evidence to
determine whether fatal injuries are highly likely to result if a CAT loader moving at five to
fifteen miles per hour overturned, overtravelled the berms, or collided with another piece of
machinery. Critically, I note that the Secretary’s own expert never indicated that the movement
in the steering column was highly likely to lead to an accident. Instead, MSHA Engineer Angel
stated that steering column movement made a loss of control accident “more likely.” (Tr. 186:9–
10.) In light of the aforementioned gaps and Angel’s testimony, I am not convinced that fatal
injuries are highly likely.
Nevertheless, I recognize that the opinion of an experienced inspector is entitled to
significant weight. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278–79 (Dec. 1998)
(relying on the opinion of an experienced inspector to conclude that the substantial evidence
supported an ALJ’s S&S determination). Inspector Wade, specifically, has significant experience
inspecting mines. (Tr. 78:2–79:21.) He observed the conditions in which the loader operated and
concluded that injuries from losing control of the machine would be serious.
(Tr. 81:12–83:9, 85:9–18.) Despite my reservations, Wade’s opinion and the size of the loader
itself convince me that these hazards would result in fatal or serious injuries. Given the evidence
before me, I therefore determine that the Secretary has satisfied his burden of proving that
reasonably serious injuries were reasonably likely to occur, and has satisfied Mathies’ third and
fourth elements. However, he has not demonstrated that reasonably serious injuries are highly
likely.
Based on my above determinations, I therefore conclude that this violation was
appropriately designated as S&S. In addition, Citation No. 8546029 is MODIFIED to lower the
likelihood of injury from “highly likely” to “reasonably likely.”
3.

Negligence and Unwarrantable Failure Determinations

The Secretary has designated this violation as an unwarrantable failure and characterizes
Saiia’s negligence as high. In support of his allegations, the Secretary points to the length of time
this condition existed, claims that Safety Manager Leemhius and Supervisor Looney failed to

36 FMSHRC Page 1764

examine the steering column in response to Honeycutt’s repeated reports, and suggests that Saiia
prioritized continued operations over miner safety.10 (Sec’y Br. at 18–20; Ex. R–16 at 2.)
As I noted, “intentional misconduct” is one of the types of conduct upon which an
unwarrantable failure determination may be made. See discussion supra Part IV.D. The
Secretary claims that Saiia chose to continue production rather than remove the loader from
service for repairs because it had no other loader equipment available. Nevertheless, I do not find
the Secretary’s argument to be persuasive. Nothing in the record convinces me that Saiia
eschewed repairs in favor of continued production.11 Likewise, the absence of a second loader is
insufficient to infer such a willful disregard of miner safety. Many operators may not have
redundant tools or auxiliary machinery on hand—particularly large or expensive equipment like
a CAT loader—but conscientiously remove such equipment from service when repairs are
needed. I therefore decline to infer intentional misconduct simply because Saiia did not have a
second loader available for use.

10

Respondents’ briefs focused little attention on these issues, tersely claiming that the
Secretary’s negligence and unwarrantable failure allegations should be overturned because “the
operators of the loader and the owner of the loader who drove it do not believe [it] . . . was
unsafe or that any standard was violated.” (Resp’t Br. at 12; see also Resp’t Reply Br. at 3.)
Although I believe Looney testified honestly regarding his opinion of the loader’s safety, a
“good faith” belief alone does not establish a safe harbor for violative conduct. A good faith
belief only mitigates unwarrantable failure and negligence if it is also objectively reasonable. See
Mach Mining, LLC, 35 FMSHRC 2937, 2941–43 (Sept. 2013).
Given my conclusion that a reasonably prudent miner would have recognized that the
steering column defect presented dangers requiring corrective action, Looney’s “good faith”
belief that the loader was safe is not objectively reasonable based on the facts before me. See
discussion supra Part V.B.1. Moreover, I have accorded little weight to Schropp’s testimony that
the loader was safe to operate because his inspection occurred more than two weeks later with no
representative of MSHA present. See discussion supra footnote 8. I therefore determine that
Looney and Schropp’s opinions regarding the safety of the loader do not mitigate Saiia’s
conduct.
11

I note that Thompson Tractor repaired the loader’s fuel system on March 19, 2010.
(Ex. R–10; Tr. 206:2–9.) From one perspective, those repairs might support an inference that
Saiia prioritized production over safety because it sought repairs to an item that affected the
operation of the loader—the fuel system—while ignoring an item that only affected miner safety.
Yet Honeycutt and Looney each credibly testified that they did not believe the loader to be
dangerous. See discussion supra Part V.A.2. Although these opinions were not objectively
reasonable, they do not necessarily imply intentional misconduct in failing to have the steering
column fixed. Consequently, I do not view the repairs to the loader’s fuel system to be evidence
that Saiia prioritized production over miner safety.

36 FMSHRC Page 1765

Looking to the other types of aggravated conduct, four aggravating factors support the
Secretary’s unwarrantable failure allegation. First, the loader’s steering column appears to have
been defective from the first day it was delivered to the Omya Alabama Plant in mid-February
2010. Honeycutt reported the steering column as loose or broken six times in the six weeks
between the loader’s arrival and Inspector Ogden’s inspection on March 31, 2010. (Ex. G–2.)
Accordingly, this violative condition lasted for several weeks. Second, these continued reports
establish that Saiia had knowledge of the condition. Third, the Secretary has satisfied his burden
of proving this violation to be properly designated as S&S, but I have modified the citation to
lower the likelihood of injury from “highly likely” to “reasonably likely.” See discussion supra
Part V.B.2. Finally, I have also found that the steering column moved several inches from center
to side. See discussion supra Part V.A.1. This safety defect was therefore obvious.
On the other hand, three mitigating factors weigh against the Secretary’s allegations.
First, nothing in the record suggests that Saiia was on notice that greater efforts were necessary
for compliance. In fact, Saiia’s history of previous violations reveals no previous violations of
section 56.14100(c). (Ex G–3.) Second, the Secretary introduced no evidence of other safety
defects on the loader. Thus, the violation was not extensive. Third, Supervisor Looney did take
some steps to abate the violative condition. Specifically, Looney referred the steering column to
maintenance personnel at the mine site. Looney’s efforts to abate the violation were insufficient
and his opinion that the loader was safe is objectively unreasonable, but he did take affirmative
steps to address the violative condition.
Based on the determinations above, the Secretary’s unwarrantable allegation may appear
to be a somewhat close call. Importantly, the Commission has indicated that a supervisor’s
failure to stop a violation supports a finding of unwarrantable failure. Virginia Slate Co., 24
FMSHRC 507, 513 (June 2002) (noting the high standard of care applicable to supervisors and
indicating that “supervisor’s involvement in a violation should be considered in an
unwarrantability analysis of the violation.”) (citations omitted). In this case, Looney’s role as a
supervisor responsible for removing the loader from service supports an unwarrantable failure
determination. He is an agent of the operator (Ex. J–1), he was aware of a defect affecting safety,
and he allowed the condition to persist for six weeks. These dangers are precisely the type the
Secretary had in mind when he promulgated section 56.14100(c). See Safety Standards for
Loading, Hauling, and Dumping and Machinery and Equipment at Metal and Nonmetal Mines,
53 Fed. Reg. 32,496, 32,505 (Aug. 25, 1988) (“Powered haulage accidents and machinery and
equipment accidents in metal and nonmetal mines are among the leading causes of fatalities and
serious injuries. . . . Self-propelled mobile equipment is specifically required to be examined
prior to use on each shift where it is to be placed in operation. This specific requirement is
included in the standard in view of the fact that defects affecting safety become more critical
when they occur on a piece of equipment which is mobile throughout the mine.”). Despite his
own subjective belief, Looney failed to satisfy his obligation to remove from service a piece of
mobile equipment with an obvious safety defect. No matter how well-intentioned his actions, his
failure constituted a serious lack of reasonable care.

36 FMSHRC Page 1766

In light of Supervisor Looney’s failure to recognize the danger involved, I conclude that
the Secretary has met his burden of proving unwarrantable failure. Similarly, I conclude that the
Secretary has demonstrated Saiia’s level of negligence to be high. See 30 C.F.R. § 100.3(d) at
Table X (suggesting “high negligence” where the “operator knew or should have known of the
violative condition or practice, and there are no mitigating circumstances.”).
C.

Section 110(c) – Supervisor Frederick Looney

Supervisor Looney stipulated that he is an agent of the operator. (Ex. J–1.) He also
admitted he was the employee responsible for removing the loader from service, but contended
that he did not believe that the loader was unsafe. (Tr. 132:22–133:1, 134:23–25,141:4–10,
145:11–13, 146:9–19, 149:9–25.) Nevertheless, his good faith belief does not mitigate his
negligence. Indeed, a knowing violation occurs when an individual knew or had reason to know
of the violative condition, not when the individual knowingly violates the law. See Ernest
Matney, 34 FMSHRC at 783 (citations omitted). In this case, the facts available to Looney were
sufficient to recognize that the defect in the steering column affected safety and required repair.
Instead, Looney allowed the loader to continue in operation for six weeks.
The Mine Act demands a high level of care from supervisors, and Looney’s mistaken
belief that the loader was safe did not satisfy this important duty. Rather, his failure to recognize
these safety hazards ultimately exposed miners to potential dangers for an extended period of
time. I therefore determine that Looney failed to act. Moreover, his involvement proved to be a
critical factor in my conclusion that Saiia engaged in aggravated conduct. In light of Looney’s
status as an agent, his knowledge of the steering column’s safety defect, and his failure to
remove the loader from service, I conclude that the Secretary has satisfied his burden of proving
Supervisor Looney’s individual liability under section 110(c) of the Mine Act.
D.

Penalties
1.

Saiia’s Penalty

The Secretary has proposed that Saiia pay a penalty of $12,563.00 for Citation No.
8546029. Two of the section 110(i) factors weigh strongly against assessing the Secretary’s
proposed penalty. First, I note that MSHA’s own Assessed Violation History Report lists only
eight violations at the Omya Alabama Plant in the previous fifteen months. None of these eight
violations involved section 56.14100(c), nor were these violations subject to enhanced
enforcement under section 104(d) of the Mine Act. Moreover, only one such citation merited an
S&S designation. Thus, this modest history of previous violations mitigates against the
Secretary’s proposed penalty. Second, nothing suggests that Saiia failed to make a good faith
effort to achieve rapid compliance with the safety standard after Inspector Ogden issued this
citation. In fact, it appears Saiia immediately took the loader out of service. (Tr. 135:16–24.)
On the other hand, I have upheld the Secretary’s S&S, unwarrantable, and negligence
designations. Such conclusions might ordinarily support the Secretary’s proposed penalty.

36 FMSHRC Page 1767

However, I modified Citation No. 8546029 to reduce the likelihood of injury from “highly
likely” to “reasonably likely.” Accordingly, I am not convinced that Saiia’s conduct was so grave
as to justify the Secretary’s proposed penalty of $12,563.00. Instead, the reduced likelihood of
injury suggests to me that leniency is appropriate. Further, I have credited Supervisor Looney’s
honestly held belief that the CAT loader in question was not dangerous. Although this opinion
was not objectively reasonable, I understand why Saiia acted as it did. No matter how mistaken
Saiia and Looney were, Respondents’ conduct was neither intentional nor reckless. Moreover,
Looney did take some (though ultimately ineffective) steps to request repair of the steering
column.
Looking at the remaining section 110(i) factors, nothing in the record suggests the
proposed penalty is inappropriate for the size of Saiia’s business. In addition, the assessed
penalties will not impair Saiia’s ability to remain in business. (Ex. J–1.) Yet, in weighing the
section 110(i) criteria, I am not convinced the Secretary’s proposed penalty is appropriate.
Significantly, Saiia’s limited history of violations, the reduced likelihood of injury, and an
absence of intentional misconduct or recklessness each suggest that a smaller civil penalty is
appropriate. I also note that the Secretary’s point system for penalties suggests a penalty of
$5,645.00 for this citation as modified. See 30 C.F.R. § 100.3. However, the Secretary’s point
system is not binding on Commission Judges, see Spartan Mining Co., 30 FMSHRC 699, 723
(Aug. 2008), and I determine that a $5,645.00 penalty does not adequately reflect Saiia’s
unwarrantable conduct. Considering all of the facts and circumstances set forth above, I hereby
assess a civil penalty of $7,500.00.
2.

Supervisor Looney’s Penalty

Given the facts and circumstances before me, I likewise conclude that the penalty the
Secretary has proposed for Supervisor Looney is inappropriate. His opinion in this case was
objectively unreasonable, and his failure to act resulted in a lengthy hazard to miners. However,
the reduced level of gravity and absence of intentional misconduct or recklessness again suggest
that some leniency is appropriate. In addition, the Secretary provided no evidence regarding
Looney’s involvement in past violative conduct or that he impeded attempts to abate the
violation in good faith after the citation had been issued.
Looney did not present evidence regarding either his ability to meet his financial
obligations or his net worth, but he did testify as to his annual earnings. (Tr. 130:7.) Moreover,
he indicated that he does not have any agreement whereby Saiia will pay the penalty assessed to
him individually. (Tr. 130:15–18.) In the interest of maintaining Looney’s privacy, I will refrain
from publishing details regarding his salary. However, I note that the Secretary’s proposed
penalty would represent a somewhat significant percentage of Looney’s pay. I therefore infer
that this penalty would affect Looney’s ability to meet his financial obligations.
In view of the above penalty criteria, I conclude that a smaller penalty is appropriate in
this case. Thus, I assess a civil penalty of $1,000.00 against Looney under section 110(c).

36 FMSHRC Page 1768

VI. ORDER
In light of the foregoing, it is hereby ORDERED that Citation No. 8546029 is
AFFIRMED as S&S and unwarrantable, but is MODIFIED to reduce the likelihood of injury
from “highly likely” to “reasonably likely.” In addition, the section 110(c) charge against
Frederick Looney is AFFIRMED. Saiia is ORDERED to PAY a civil penalty of $7,500.00
within 40 days of the date of this decision. Likewise, Looney is ORDERED to PAY a civil
penalty of $1,000.00 within 40 days of the date of this decision.

/s/ Alan G. Paez
Alan G. Paez
Administrative Law Judge

Distribution:
Melanie L. Paul, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street,
S.W., Room 7T10, Atlanta, GA 30303
John Hargrove, Esq., Bradley Arant Boult Cummings, LLP, One Federal Place, 1819 Fifth
Avenue North, Birmingham, AL 35203
/pjv

36 FMSHRC Page 1769

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

June 24, 2014
SECRETARY OF LABOR
on behalf of ROBERTO VEGA,
Complainant,
v.
CANTERA EL TUQUE, INC.,
Respondent,

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TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. SE 2014-300-DM
SE-MD 14-19
Mine: Cantera El Tuque
Mine ID: 54-00483

DECISION AND ORDER
Appearances:

Summer C. Smith, Esq., Office of the Solicitor, U.S. Department of Labor,
New York, New York, for the Secretary of Labor.
Javier González-Montañez, Esq., Gonzalez, Machado, Roig & Sanchez
Ramos, LLC, San Juan, Puerto Rico, for Respondent

Before:

Judge Moran
DECISION AND ORDER REINSTATING ROBERTO VEGA1

A temporary reinstatement hearing was held in this matter on June 13, 2014, in San Juan,
Puerto Rico. For the reasons which follow, the Court finds that the application was not
frivolously brought and consequently it is ordered that Roberto Vega be reinstated to his former
position, with all attendant benefits, effective immediately.
Temporary Reinstatement under the Mine Act
Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any
protected right 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.
181, 95th Cong., 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on
1

This decision also disposes of the Respondent’s Motion for Summary Decision. See
infra at 4.

36 FMSHRC Page 1770

Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 623 (1978).
Section 105(c)(2) of the Mine Act provides in relevant part that “Any miner or applicant
for employment or representative of miners who believes that he has been discharged, interfered
with, or otherwise discriminated against by any person in violation of this subsection may, within
60 days after such violation occurs, file a complaint with the Secretary alleging such
discrimination. . . . [I]f the Secretary finds that such complaint was not frivolously brought, the
Commission, on an expedited basis upon application of the Secretary, shall order the immediate
reinstatement of the miner pending final order on the complaint.”
In adopting section 105(c), Congress indicated that a complaint is not frivolously brought
if it “appears to have merit.” S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978).
In addition to Congress’ “appears to have merit” standard, the Commission and the courts have
also equated “not frivolously brought” to “reasonable cause to believe” and “not insubstantial.”
Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987),
aff'd, 920 F.2d 738, 747 & n.9 (11th Cir. 1990) (“JWR”). Sec. obo Piper, Complainant, v.
Kenamerican Resources, Inc. (June 2013) (Judge Andrews), 2013 WL 3865343 at *2.
The Commission itself “has repeatedly recognized that the ‘scope of a temporary
reinstatement hearing is narrow, being limited to a determination by the judge as to whether a
miner's discrimination complaint is frivolously brought.’ [JWR supra] It is “not the judge's duty,
nor is it the Commission’s, to resolve the conflict in testimony at this preliminary stage of the
proceedings.” Sec'y on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999)
(“Chicopee Coal”). In reviewing a judge's temporary reinstatement order, the Commission has
applied the substantial evidence standard. See, id. at 719; Sec'y on behalf of Peters v. Thunder
Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993). Id. at n. 2.” Sec. obo Rodriguez v. C.R.
Meyer and Sons Co. 2013 WL 2146640 at *5 (May 2013).
“Temporary Reinstatement is a preliminary proceeding, and narrow in scope. The plain
language of the Act states that ‘if the Secretary finds that such complaint was not frivolously
brought, the Commission, on an expedited basis upon application of the Secretary, shall order the
immediate reinstatement of the miner pending final order on the complaint.’ 30 U.S.C. §
815(c)(2). The judge must determine whether the complaint of the miner ‘is supported
substantial evidence and is consistent with applicable law.’ Sec'y of Labor on behalf of Peters v.
Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993). Neither the judge nor the
Commission is to resolve conflicts in testimony at this stage of the case. Chicopee Coal at 719.
A temporary reinstatement hearing is held for the purpose of determining ‘whether the evidence
mustered by the miners to date established that their complaints are nonfrivolous, not whether
there is sufficient evidence of discrimination to justify permanent reinstatement.’ JWR, 920 F.2d
at 744. “Congress intended that the benefit of the doubt should be with the employee, rather than
the employer, because the employer stands to suffer a lesser loss in the event of an erroneous
decision since he retains the services of the employee until a final decision on the merits is
rendered.” Sec'y of Labor, on behalf of Curtis Stahl v. A&K Earth Movers Inc., 22 FMSHRC

36 FMSHRC Page 1771

233, 237 (ALJ) (Feb. 2000).” Sec. obo Piper, Complainant, v. Kenamerican Resources, Inc.
(June 2013) (Judge Andrews), 2013 WL 3865343 at *2.
Findings of Fact and Conclusions of Law
At the hearing, the Complainant, Roberto Vega, testified. Mr. Vega stated, credibly,
in the Court’s estimation, that he was employed by the Respondent, Cantera El Tuque, from
December 1, 2012 until April 17, 2014, as a supervisor. In that capacity, he reported to Mr.
Enrique Golderos, the owner of the Respondent Mine. Tr. 9-10. Mr. Vega stated that he spoke
with MSHA Inspector Villahermosa during February 2014 and that the conversation included
Mr. Vega’s remarks to the inspector about certain unsafe conditions at the mine. Tr. 18.
Citations were issued by the Inspector during that time and presented to Mr. Vega. Mr. Vega
then informed Mr. Golderos about the citations that were issued. Mr. Vega affirmed during his
testimony that he identified safety hazards at the mine. These included fugitive dust, equipment
with defects, such as a non-functioning emergency brake and back-up alarm on a loader, among
other issues. Mr. Vega stated that he identified these safety issues to the inspector and as a
consequence, citations were issued to the mine. Tr. 19-21.
Subsequently, the same Inspector returned to the mine during March 2014 to follow-up
on the citations he had previously issued. Tr. 25. The loader which had been cited during the
February inspection was still unrepaired and the Inspector issued an Order, barring future use of
it until the violative condition was abated. Id. During the March follow-up inspection, Mr. Vega
spoke with the Inspector about other safety concerns he had about the mine. The Court finds
that these safety concerns were communicated to the MSHA Inspector and that those concerns
were not negligible.
Upon questioning by the Court, Mr. Vega testified that he had discussions with Mr.
Golderos about these, and other identified safety concerns, on several occasions. Tr. 26. These
conversations occurred after the citations had been issued and Mr. Vega stated that Mr. Golderos
never took any action regarding those concerns. Tr. 27. Beyond this, Mr. Vega asserted that, in
conversation with Mr. Golderos, he was advised that he needed to “learn” how to speak with
MSHA inspectors. In the context presented, Mr. Vega stated, he construed this to mean that he
was to lie to the inspectors.
During cross-examination and repeatedly during the proceeding, Counsel for the
Respondent attempted to interject testimony regarding its claim that Mr. Vega was actually fired
due to economic reasons at the mine. See, for e.g. Tr. at 37.
The Court found that the government established, through the testimony of Mr. Vega, its
prima facie case that the claim was not frivolously brought. This was based upon the Court’s
conclusion from that testimony, finding that the witness was credible, that he made safety
complaints, both to the MSHA Inspector and to the owner, and that, in close proximity in time,
he was fired from his job with the mine. The Court added that it was not aware of any
Commission level decision in support of considering the Respondent’s claim that Mr. Vega was
discharged for economic reasons. Tr. 45-47. In fact, case law points to the opposite conclusion.
As noted by the Secretary in its Motion in Limine, the decisions regarding Secretary of Labor on

36 FMSHRC Page 1772

behalf of Joseph M. Ondreako v. Kennecott Utah Copper Corp., 2003 WL 23416466 (Oct. 9,
2003), aff’d 25 FMSHRC 585, make this conclusion clear.
As the Court noted, “So what I have here is Mr. Vega's testimony, which I deem to be
credible upon observing him, that he is an employee of this mine, or was; that he made safety
complaints to an MSHA inspector, which I found to have been credible testimony; and then
that adverse action followed within a reasonable period of time following those complaints.” Tr.
56.
In the face of the Respondent’s contention that its defense “has to do with, that on prior
occasions, both the witness as well other employees, brought safety issues before the respondent
and the consequence was never employee termination. And at the end of the day this court will
have the opportunity to see, in this proceeding that's being held, that there were other motivations
that have nothing to do with safety, which were the ones that moved this employee to request this
remedy,” the Court tried to explain that such weighing of competing versions for the employee’s
termination is outside the scope of a temporary reinstatement proceeding. Tr. 60-61.
The Respondent, in defense, called one witness, Ms. Magda Marie Rivera. Ms. Rivera,
declared to be an employee of the Respondent, stated that the mine had approximately 25
employees in early 2013 but today has only 14 employees. Tr. 70. Again, the Respondent
attempted to show, this time through the testimony of Ms. Rivera, the “real reasons, the true
reasons, why [Mr. Vega] was fired,” and again the Court advised that consideration of such
testimony would necessarily involve a weighing of competing stories, and that this would be
outside of the proper scope of the temporary reinstatement proceeding. Tr. 73-74.
At the conclusion of the testimony, the Respondent asked that the Court take “judicial
notice” that, under Puerto Rico’s labor law, during layoffs an employer must terminate the
employee with the least seniority. The Court advised that it did not believe that such
considerations were material to the proceeding but that the parties could submit cases in support
of their respective positions on that point, if such case law existed. The Respondent has not
identified such case law to support its contention.
On June 16, 2014, the Secretary, via email, noted the Court’s “request at the close of
hearing on June 13, 2014, to identify any case law supporting the proposition that state law could
affect a temporary reinstatement proceeding.” The Secretary advised that it “found no case law
supporting such a proposition. Furthermore, Section 506 of the MSH Act states that the MSH
Act preempts state law where it conflicts with the ‘[MSH] Act or with any order issued or any
mandatory health or safety standard. 30 USC 955.’” Based upon that response, the Secretary
asserted that “the Puerto Rico statutes that Respondent’s counsel alluded to during the hearing
are not relevant to this temporary reinstatement proceeding.”
Respondent’s Motion for Summary Decision
The Secretary noted that the Respondent filed a summary judgment motion at the time it
responded to the Secretary’s Motion in Limine. The Respondent’s “Request for Summary
Judgement” [sic], asserts that “[t]he decision to separate Mr. Vega from his work duties

36 FMSHRC Page 1773

responded to an adverse financial condition of Respondent, a fact that has not been disputed by
Applicant.” Motion at 1. The Motion goes on to assert that Mr. Vega was one of a number of
employees that were laid off as a result of the Respondent Mine’s “adverse financial condition,”
and that he was so informed by the mine’s President, Mr. Golderos, that the mine’s economic
condition was the basis for the termination. Id. at 2.2
As that motion was filed just two days before the temporary reinstatement proceeding,
the Secretary had not filed a response at the time of the hearing. The Secretary elected to
respond to the Respondent’s motion orally, at the close of the hearing. It contended that the
Respondent’s motion was premature as it goes to the merits of the underlying discrimination
proceeding and therefore is outside of the “frivolously brought” issue to be decided at this
juncture. Further, the Secretary contended that, even assuming for the sake of argument that the
motivation for Mr. Vega’s termination could be raised, there are factual disputes involved, and
therefore that summary judgment is not appropriate. Tr. 83-84. The Court agrees with the
Secretary’s arguments.
As referenced earlier in this decision, the scope of a temporary reinstatement proceeding
is very limited. Considering that the basis advanced in the Request for summary judgment goes
beyond the scope of this proceeding, as it would entail a weighing of different narratives as to the
basis for the Complainant’s termination, summary decision is not appropriate. Accordingly, the
Request is DENIED.
Conclusion
The Court has noted that the testimony on the subject of protected activity, and whether
adverse action was motivated in any part by such activity, came solely from the Complainant,
Mr. Vega. Against this was the Respondent’s attempt to show that the miner’s discharge was
due to economic conditions at the mine. However, the fundamental problem with that approach
is that the temporary reinstatement application is not the proceeding for the resolution of
such competing narratives. Rather, the Court must focus upon whether there is credible
substantial evidence presented to show that protected activity occurred, that adverse action
resulted, and that there was evidence of a nexus between those events. Here, as noted, the Court
finds that: the record at the application proceeding provided substantial evidence of the
Complainant’s engaging in protected activity, voicing his concerns over several safety matters;
that management was made aware of these concerns; and that an adverse action, in the form of
termination, occurred within a time frame thereafter which was sufficiently close in time to
establish, on this record, and within the context of temporary reinstatement, that the application
was not frivolously brought.
While the Court has found that Mr. Vega’s complaint of discrimination was not
frivolously brought, it is fully recognized that the Commission has noted that the period of
reinstatement may be tolled in some circumstances. A layoff for economic reasons may provide
such a basis for tolling, but that is a very fact-specific inquiry. See, e.g., Sec. obo Gatlin v.
2

Respondent submitted a “Memorandum of Law in Support of Summary Judgement”
[sic] on June 19, 2014. Because the Court denies the Respondent’s Motion, there is no need to
await a Response from the Secretary.

36 FMSHRC Page 1774

Kenamerican Resources, 31 FMSHRC 1050, 2009 WL 3412973 (Oct. 2009), Sec. obo Ratliff v.
Cobra Natural Resources, 35 FMSHRC 394, 2013 WL 865606 (Feb. 2013). The Respondent
may initiate this process by filing a motion to toll the economic reinstatement, which motion
must fully set forth the basis for that relief. Of course, the motion must provide documentation
in support of the claim for tolling. The Secretary will need to timely respond to the motion and
then seek discovery in order to make its own evaluation of the bona fides of the Respondent’s
claim for relief. As the Court explained in a conference call with the parties on June 24, 2014,
various scenarios may ensue upon the completion of the discovery and the evaluation of that
information by the Secretary. It is possible, for example, that the Secretary may concede that
tolling is appropriate or that it is not justified. On the other hand, it may be that the Respondent
may step back from its motion and withdraw its claim that tolling should be applied. It is also
possible that a hearing may be required to resolve factual disputes about the Respondent’s
employment situation and the appropriateness of Mr. Vega’s inclusion in that layoff, given the
finding that his claim was not frivolously brought.
Regardless of the outcome of any potential motion to toll the period of economic
reinstatement, the Secretary continues to have the obligation, following the issuance of this
Decision and Order, to complete its investigation of the underlying discrimination complaint as
soon as possible. Section 105(c)(3) of the Mine Act requires the Secretary to notify the
complainant of whether it intends to file a discrimination complaint on the complainant’s behalf
within 90 days of receiving the miner’s initial complaint. If the parties settle the underlying
discrimination case, counsel for the Secretary is directed to promptly notify the Court. Similarly,
prompt notification to the Court is required if the Secretary determines that the Respondent did
not violate section 105(c) of the Mine Act.
ORDER
On the basis of the foregoing, the Court finds that the Secretary presented sufficient
evidence at the hearing in Puerto Rico to establish that this discrimination complaint was not
frivolously brought. Accordingly, it is ORDERED that the Respondent immediately reinstate
the Complainant, Roberto Vega, as of the date of this ORDER, to his former position, or its
equivalence, at the same rate of pay and benefits that he was receiving at the time of his
termination. The Secretary is directed to provide a status report of its discrimination
investigation within 30 days of this decision. The Court retains jurisdiction over this temporary
reinstatement proceeding.

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

36 FMSHRC Page 1775

Distribution:
Summer C. Smith, Esq., Office of the Solicitor, U.S. Department of Labor, 201 Varick St.,
Room 983, New York, NY 10014
Javier Gonzalez, Esq., Citibank Tower, Suite 601, 252 Ponce de Leon Avenue, San Juan, Puerto
Rico 00918
Enrique Golderos, President, Cantera El Tuque, Inc., P.O. Box 801354, Coto Laurel, PR 00780

36 FMSHRC Page 1776

ADMINISTRATIVE LAW JUDGE ORDERS

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

June 12, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

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v.

OAK GROVE RESOURCES, LLC,
Respondent

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

ORDER REQUIRING SECRETARY’S PRE-HEARING STATEMENT
Before: Judge Feldman
These proceedings require a determination of the evidentiary criteria that must be
demonstrated to support the imposition of enhanced civil penalties provided in section 110(b)(2)
of the Federal Mine Safety and Health Act of 1977, as amended by the Mine Improvement and
New Emergency Response Act of 2006 (“Act” or “New Miner Act”), for an alleged repeated
flagrant violation. 30 U.S.C. § 820(b)(2). Section 110(b)(2), which became effective on
August 17, 2006, following the Sago and Darby Mine disasters, increases the maximum civil
penalty for extremely hazardous violations deemed “flagrant.” Section 110(b)(2) provides:
Violations under this section that are deemed to be flagrant may be
assessed a civil penalty of not more than $220,000. For purposes
of the preceding sentence, the term “flagrant” with respect to a
violation means a reckless or repeated failure to make reasonable
efforts to eliminate a known violation of a mandatory health or
safety standard that substantially and proximately caused, or
reasonably could have been expected to cause, death or serious
bodily injury.
30 U.S.C. § 820(b)(2) (emphasis added).

36 FMSHRC Page 1777

A primary subject in these matters is 104(d)(2) Order No. 8520664 in Docket No.
SE 2013-368, issued on October 3, 2012.1 The order alleges a repeated flagrant violation under
section 110(b)(2) of the Act based on an alleged violation of the mandatory safety standard in
section 75.400 of the Secretary’s regulations that is attributable to high negligence.2 30 C.F.R.
§ 75.400. Order No. 8520664 states:
Combustible material in the form of float coal dust and dry hard
packed coal fines were allowed to accumulate on the roof, ribs,
footwall, and belt structure of the Main North 3 belt entry. The
hard packed coal fines were in contact with moving roller[s] on the
belt line in multiple locations along the belt entry. The float coal
dust existed on the roof, ribs, footwall, and belt structure from the
Main North 3 Tail Pieces extending outby to crosscut 27. This is
an approximate distance of 2100 feet. Due to the extensive amount
of accumulations and that this belt is examined every shift this
constitutes more than ordinary negligence and is an unwarrantable
failure to comply with a mandatory health and safety standard.
Standard 75.400 was cited 92 times in two years at mine 0100851
(91 to the operator, 1 to a contractor). This violation is an
unwarrantable failure to comply with a mandatory standard.
Section 75.400, which prohibits combustible coal dust accumulations, is the most
frequently cited mandatory standard in underground coal mines. For example, citations
concerning section 75.400 violations constituted 10.47 percent of all citations issued in 2013,
and currently constitute 10.61 percent of all citations issued in 2014. MSHA, Most Frequently
Cited Standards, www.msha.gov/stats/top20viols/top20viols.asp (accessed June 12, 2014).

1

Docket Nos. SE 2013-301, SE 2013-352 and SE 2013-399 have been consolidated with
Docket No. SE 2013-368 for judicial efficiency and because included therein is a citation that the
Secretary relies on as a predicate for the alleged flagrant violation in Order No. 8520664.
2

Section 75.400 provides:
Coal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials, shall
be cleaned up and not be permitted to accumulate in active
workings, or on diesel-powered and electric equipment therein.

30 C.F.R. § 75.400.

36 FMSHRC Page 1778

Background
Section 8(b) of the New Miner Act required the Secretary to “promulgate final
regulations with respect to penalties” to codify the new enhanced penalty structure. Pub. L.
109-236, § 8(b), 120 Stat. 501 (2006). To implement special assessments for flagrant violations,
MSHA issued notices of proposed rulemaking for section 100.5(e) in the Secretary's Part 100
Criteria and Procedures for Proposed Assessment of Civil Penalties. 30 C.F.R. §100.5(e),
71 Fed. Reg. 53054 (Sept. 2006); 71 Fed. Reg. 62572 (Oct. 2006). The notice-and-comment
provisions of the APA require the Secretary to provide “[an adequate] description of the subjects
and issues involved” to support a flagrant violation. 5 U.S.C. § 553(b)(3). On March 22, 2007,
MSHA issued a final rule regarding its procedures for proposing enhanced civil penalties under
the New Miner Act. 30 C.F.R. §100.5(e). However, the final provisions of section 100.5(e)
merely repeat the statutory language in section 110(b)(2), without providing adequate notice
with respect the evidentiary criteria necessary to support a flagrant designation . 3 72 Fed. Reg.
at 13622.
The Commission has previously had the question of the required elements for a repeated
flagrant violation before it on several occasions based on requests for review of interlocutory
decisions of Commission Judges who had addressed this issue. Conshor Mining, LLC,
34 FMSHRC 349 (Feb. 2012) (granting interlocutory review); Wolf Run Mining Company,
35 FMSHRC 536 (Mar. 2013) (remanding for reconsideration of whether a violation was
properly designated as flagrant). On each occasion, the Secretary removed the subject flagrant
violation designation, thus precluding a final Commission ruling on this question. Conshor,
34 FMSHRC 571 (Mar. 2012) (vacating the order granting interlocutory review); Wolf Run,
__ FMSHRC __ (Apr. 14, 2014) (ALJ) (approving settlement). However, in its remand order
in Wolf Run, prior to the withdrawal of the relevant flagrant designation, the Commission
concluded that the plain language of section 110(b)(2) supports that past violative conduct
may be considered in determining whether to cite a condition as a repeated flagrant violation.
35 FMSHRC at 541, citing 30 U.S.C. § 820(b)(2).

3

Section 100.5(e), as promulgated, provides:
Violations that are deemed to be flagrant under section
110(b)(2) of the Mine Act may be assessed a civil penalty of not
more than $220,000. For purposes of this section, a flagrant
violation means “a reckless or repeated failure to make reasonable
efforts to eliminate a known violation of a mandatory health or
safety standard that substantially and proximately caused, or
reasonably could have been expected to cause, death or serious
bodily injury.”

30 C.F.R. §100.5(e).

36 FMSHRC Page 1779

However, in Wolf Run, the Commission did not address: whether such previous violations
must be unwarrantable; whether the prior violations must have violated the same mandatory
standard as the condition alleged to be flagrant; and whether there is a specified time period for
the occurrence of such previous violations. The Commission had no basis for doing so as the
Secretary did not clearly articulate in his opening brief, or during oral argument, the relevant
parameters concerning prior conduct. The Secretary avers that any parameters for predicates that
he considers for a repeated flagrant violation are merely guidelines for enforcement personnel.
Sec’y Resp. at 9. As such, the guidelines are not based on the Secretary’s statutory interpretation
and are beyond the scope of this proceeding. 4
The Commission also has never addressed the requisite degree of gravity necessary for a
flagrant designation. The degree of gravity is determined by the seriousness of the violation.
Consolidation Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996) (citations omitted). In this
regard, the Secretary acknowledges that “gravity is essentially a function of (1) the potential for
injury and (2) the likely nature of such injury.” Sec’y Resp. at 3.
Even if the Secretary ultimately prevails in this matter with respect to the issues of the
fact of the violation and the significant and substantial (“S&S”) and unwarrantable designations
in Order No. 8520664, a hearing cannot proceed without determining the proper evidentiary
requirements for demonstrating a repeated flagrant violation under the statutory provisions of
section 110(b)(2). Consequently, on March 19, 2014, an Order Scheduling Briefing (“Order”)
was issued requesting the Secretary to address a number of substantive issues concerning the
criteria necessary to support a repeated flagrant violation. 36 FMSHRC 815 (Mar. 19, 2014)
(ALJ).5 The Secretary’s response was filed on April 22, 2014. Oak Grove’s reply to the
Secretary’s response was filed on May 8, 2014.6
4

Guidelines, such as those contained in Procedure Instruction Letters (“PILs”), that
provide guidance to enforcement personnel are not mandatory standards. Such PILs do not
establish a binding norm and therefore are not subject to the APA. Consequently, given the
advisory nature of the Secretary’s parameters for charging that a flagrant violation is repeated in
nature, a rulemaking proceeding is not required. 5 U.S.C. § 553(b)(3)(A); see also, Nat’l Mining
Ass’n, 589 F.3d 1368, 1371 (11th Cir. 2009).
5

Included among the issues the Secretary was directed to address was whether a noticeand-comment rulemaking was necessary if the Secretary was proposing a binding norm with
respect to the parameters for predicates for repeated flagrant violations. 38 FMSHRC at 820.
The Secretary has not proposed a binding norm with respect to whether predicate violations must
have violated the same standard as that alleged to be flagrant, and whether there is a specific
time period for, or frequency of, such prior violations. In the absence of a binding norm, a
rulemaking is not required. Accordingly, this Order deals solely with a Chevron analysis of
whether the Secretary’s interpretation of section 110(b)(2) is reasonable. See page 5-6, infra.
6

Oak Grove’s reply has been considered, although not specifically referenced in this
Order. The focus of this Order is the reasonableness of the Secretary’s interpretation and
application of the evidentiary burden that must be met to support a repeated flagrant designation
under the provisions of section 110(b)(2).

36 FMSHRC Page 1780

In response to the March 19, 2014, Order, the Secretary agreed that “both reckless and
repeated flagrant designations require violations that substantially and proximately caused, or
reasonably could have been expected to cause, death or serious bodily injury.” Sec’y Resp. at 6.
In other words, the Secretary acknowledges that a violation which does not otherwise satisfy
the gravity requirements in section 110(b)(2) cannot be elevated to a flagrant violation solely
based on prior predicate violations. With respect to the requisite degree of gravity, the Secretary
has departed from his prior position that a flagrant violation requires a likelihood of injury of at
least a permanently disabling nature,7 now arguing that most lost workday injuries are sufficient
to support a flagrant violation. Sec’y Resp. at 3.
With respect to distinguishing the terms “flagrant” and “S&S,” obviously, all flagrant
violations are S&S, however, not all S&S violations are flagrant.8 The Secretary fails to
adequately distinguish violations that are only S&S from S&S violations that are properly
designated as flagrant. In so doing, the Secretary seeks to greatly expand the scope of the
flagrant provisions of section 110(b)(2) beyond that contemplated by Congress. Consequently,
as discussed below, the Secretary’s interpretation of the section 110(b)(2) criteria for a flagrant
violation is unreasonable.
I.

Chevron Framework

A definitive articulation of the elements necessary for a repeated flagrant violation that
is consistent with the statutory language and the legislative intent is essential for implementing
the flagrant provisions of section 110(b)(2). The Commission has traditionally established the
parameters for the Secretary’s burden of proof with respect to charges brought under the Act.
Berwind Natural Resources Corp., 21 FMSHRC 1284, 1317 (Dec. 1999) (noting longstanding
caselaw reflecting the Commission’s authority to interpret the Mine Act and adopt specific tests
or standards for adjudication, such as the evidentiary requirements for S&S designations and for
personal liability) (citations omitted). The vague and inconsistent criteria proffered by the
Secretary for demonstrating a repeated flagrant violation has created a void that must be filled by
the Commission. As the factors considered by the Secretary with respect to timeframe, number
of previous violations, and whether such previous violations must cite the same mandatory
standard, are merely guidelines, the focus shifts to whether the Secretary’s interpretation of the
statutory gravity criteria for a flagrant violation is both reasonable and consistent with the
relevant legislative history.
7

The Secretary’s initial guidelines for repeated flagrant violations required that the cited
condition pose a potential injury or illness of at least a permanently disabling nature. Conshor,
33 FMSHRC 2917, 2920 (Nov. 28, 2011) (ALJ) (citing PIL Nos. I06-III-04, I08-III-02). The
Secretary has also departed from his initial guidelines requiring at least two prior unwarrantable
failure violations of the same mandatory standard that were cited within the fifteen month period
preceding the issuance of the alleged flagrant violation. Id.
8

Judge Paez has similarly noted that the ‘significantly and substantially contribute to a
hazard’ language in section 104(d)(1), that provides a basis for an S&S designation, is notably
different from the provisions of section 110(b)(2) that provide a basis for the gravity element of a
flagrant designation. Stillhouse Mining, LLC, 33 FMSHRC 778, 800 (March 28, 2011) (ALJ).

36 FMSHRC Page 1781

The first inquiry in statutory construction is “whether Congress has directly spoken to the
precise question at issue.” Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S.
837, 842 (1984). If a statute is clear and unambiguous, effect must be given to its language. Id.
at 842-43. Deference to an agency's interpretation of the statute may not be applied “to alter the
clearly expressed intent of Congress.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)
(citations omitted). Traditional tools of construction, including examination of a statute's text
and legislative history, may be employed to determine whether “Congress had an intention on
the precise question at issue,” which must be given effect. Coal Employment Project v. Dole,
889 F.2d 1127, 1131 (D.C. Cir. 1989) (citations omitted). The examination to determine whether
there is a clear Congressional intent is commonly referred to as a “Chevron I” analysis. Id.; see
Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996); Keystone Coal Mining Corp., 16
FMSHRC 6, 13 (Jan. 1994).
If, however, the statute is ambiguous or silent on a point in question, a second inquiry,
commonly referred to as a “Chevron II” analysis, is required to determine whether an agency's
interpretation of a statute is a reasonable one. See Chevron, 467 U.S. at 843-44; Thunder Basin,
18 FMSHRC at 584 n.2; Keystone, 16 FMSHRC at 13. Deference is accorded to “an agency's
interpretation of the statute it is charged with administering when that interpretation is
reasonable.” Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994). The
agency's interpretation of the statute is entitled to affirmance as long as that interpretation is one
of the permissible interpretations the agency could have selected. See Joy Technologies, Inc. v.
Sec'y of Labor, 99 F.3d 991, 995 (10th Cir. 1996), cert. denied, 520 U.S. 1209 (1997); Thunder
Basin Coal Co. v. FMSHRC, 56 F.3d 1275, 1277 (10th Cir. 1995).
A. Chevron I - Congress has directly addressed that flagrant violations can only be reserved
for the most blatant and egregious violations
The operative statutory definition of “flagrant” provided by Congress is:
[T]he term “flagrant” with respect to a violation means a reckless
or repeated failure to make reasonable efforts to eliminate a known
violation of a mandatory health or safety standard that substantially
and proximately caused, or reasonably could have been expected to
cause, death or serious bodily injury.
30 U.S.C. § 820(b)(2).
Placing the statutory definition in the context of the legislative history, although
enhancement of safety is a fundamental concern, it is clear that the intent of the New Miner Act,
which was enacted in the aftermath of the Sago and Darby Mine disasters, was to address, and
hopefully prevent, violations that could proximately cause future tragedies. The Senate Report
that accompanied the New Miner Act stated:
The year 2006 began with the tragic loss of 12 miners at the
Sago Mine in West Virginia, followed closely by the deaths of

36 FMSHRC Page 1782

two miners at the Alma Mine, also in West Virginia; and some
4 months later by the deaths of 5 miners at the Darby Mine in
Harlan County, Kentucky. The death toll in the first 5 months of
the year was nearly 50 percent higher than the entire previous
year. Additionally, the rise in coal production in the last few years
raises the committee's concerns that there is the potential for a
return to higher numbers of accidents and fatalities. Improvements
in safety come about because of a continued re-examination and
revision of safety and regulatory practices in light of experience.
These tragedies serve as a somber reminder that even that which
has been done well can always be done better.
Committee on Health, Education, Labor, and Pensions, S. Rep. No. 109-365, Mine Improvement
and New Emergency Response Act of 2006, at 2 (Dec. 6, 2006).
In construing statutory language, it is fundamental that:
A statute is passed as a whole and not in parts or sections and is
animated by one general purpose and intent. Consequently, each
part or section should be construed in connection with every other
part or section to produce a harmonious whole.
2A Sutherland Statutory Construction § 46:5 (7th ed.). In this regard, the “Act’s overall
enforcement scheme . . . provides for the use of increasingly severe sanctions for increasingly
serious violations or operator behavior.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 828
(Apr. 1981). Thus, the Act provides increasingly severe sanctions: for S&S violations cited
under section 104(a); for violations attributable to unwarrantable failures under section 104(d)
which subject operators to a maximum penalty of $70,000.00; and for flagrant violations under
section 110(b)(2) which subject operators to a maximum penalty of $220,00.00.
The fact that Congress intended that it is only the most blatant and egregious violations
that can be cited under section 110(b)(2) is clear from the language of the statute that
characterizes the subject violation as “flagrant.” A flagrant act is defined as conduct that is
“[c]onspicuously bad, offensive, or reprehensible.” The American Heritage Dictionary 667
(4th ed. 2009). The American Heritage Dictionary includes the following discussion of relevant
synonyms:
flagrant, glaring, gross, egregious, rank: [t]hese adjectives refer to
what is conspicuously bad or offensive. Flagrant applies to what is
so offensive that it cannot escape notice: flagrant disregard for the
law. What is glaring is blatantly and painfully manifest: a glaring
error; glaring contradictions. Gross suggests a magnitude of
offense or failing that cannot be condoned or forgiven: gross
ineptitude; gross injustice. What is egregious is outrageously bad:

36 FMSHRC Page 1783

an egregious lie. Rank implies that the term it qualifies is as
indicated to an extreme, violent, or gross degree: rank stupidity;
rank treachery.
Id. (emphasis in original). As discussed below, it is the conspicuously bad, offensive, or
reprehensible nature of the cited violation with respect to its significant risk of causing death
or serious bodily injury that warrants designating the violation as flagrant. However, although
the plain language of section 110(b)(2) requires that the violation be egregious, the specific
threshold criteria to warrant a designation of a flagrant violation requires interpretation of the
statutory provisions.
B. Chevron II - The Secretary’s interpretation of the gravity requirements in section
110(b)(2) with respect to the causation, likelihood, and severity of injury, is unreasonable
In Wolf Run, the Secretary alluded to any “fail[ure] to make reasonable efforts to
eliminate at least one previous violation prior to failing to make reasonable efforts to eliminate
the violation alleged to be flagrant” as an adequate predicate for a repeated flagrant designation.
35 FMSHRC at 539 n. 5 (citing S. Opening Br. at 17). In his response to the March 19, 2014,
Order, the Secretary now asserts that in order to demonstrate a repeated flagrant violation, it
must be demonstrated that the operator:
(1) Knew of one or more [ . . . ] predicate violations, (2) failed to
make reasonable efforts to eliminate the prior violation(s) known
to the operator, and (3) that one or more of these [prior] violations
reasonably could have been expected to cause death or serious
bodily injury.
Sec’y Resp. at 10. Thus, the Secretary now asserts that any predicate violation relied upon
to support a repeated flagrant violation must be a known violation that satisfies the “threshold
gravity and negligence required by section 110(b)(2).” Id. at 11. As the Commission has
determined that the previous violation history is a relevant consideration, and the Secretary has
acknowledged that the requisite degree of gravity for reckless and repeated flagrant violations is
the same, the only remaining issue for resolution is the degree of gravity required to satisfy a
repeated flagrant violation. See pages 3-4, supra.
1. The March 19, 2014 Order
As a general matter, the Order required the Secretary to compare the degree of gravity
required for a flagrant designation under section 110(b)(2) with the degree of gravity required
for the statutory term “significant and substantial” contained in section 104(d)(1) of the Act,

36 FMSHRC Page 1784

the criteria for which has been articulated in Mathies and its progeny.9 36 FMSHRC at 817-18,
citing Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984). In this regard, the Order directed the
Secretary to consider the distinction, if any, between the Commission’s determination that an
S&S finding “requires that the hazard contributed to [by the violation] will result in an event in
which there is an injury,” with the language of section 110(b)(2) that the violation itself must be
the actual or expected proximate cause of death or serious bodily injury. Id. at 818, citing U.S.
Steel Mining, 6 FMSHRC 1834, 1836 (Aug. 1984) (citing 3 FMSHRC at 3-4) (emphasis added);
see also Musser Eng’g, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (holding that the third
element of Mathies only requires the Secretary to prove a reasonable likelihood that the hazard
contributed to by the violation will cause injury, not that the violation itself will cause injury).
In briefing this matter, the Secretary was also directed to be mindful of the fact that an S&S
analysis is based on a variety of changing conditions normally encountered during continued
mining operations in the presence of an unabated hazard. 36 FMSHRC at 818, citing U.S. Steel
Mining, 7 FMSHRC 1125, 1130 (Aug. 1985) (citing 6 FMSHRC 1573, 1574 (July 1984)).
2. The Secretary’s Proffered Interpretation in Response
As previously noted, the Secretary has acknowledged that gravity is a function of
the likelihood and seriousness of an injury. Sec’y Resp. at 3. With respect to the potential
likelihood of injury, the Secretary argues there is essentially no distinction between routine S&S
and flagrant gravity requirements. In this regard, the Secretary states “there is no material
distinction between the ‘reasonably likely to result’ inquiry [under the third element of Mathies]
and the ‘reasonably could have been expected to cause’ inquiry under section 110(b)(2).” Id.
With respect to causation as it relates to the likelihood of injury, the Secretary
acknowledges that a prerequisite for a flagrant violation is that “the violation itself” must be
reasonably expected to cause death or serious injury. Sec’y Resp. at 4 (emphasis in original).
The Secretary distinguishes this from an S&S violation, which only requires that “the hazard
contributed to by the violation” must be reasonably likely to contribute to an event that causes
injury of a reasonably serious nature. Id. (emphasis in original). However, the Secretary
maintains that this distinction is not substantive, and only shifts the burden of proof. Id. Rather,
the Secretary argues that, “[n]evertheless, this distinction does not support a conclusion that
[flagrant] violations require greater gravity than [S&S] violations.” Id.

9

prove:

In order to establish that a violation is properly designated as S&S, the Secretary must
(1) the underlying violation of a mandatory safety standard; (2) a
discrete safety hazard -- that is, a measure of danger to safety -contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to [by the violation] will result in an injury; and
(4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.

6 FMSHRC at 3-4; see also Austin Power Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988),
aff'g 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).

36 FMSHRC Page 1785

With respect to the severity of the potential injury, the Secretary argues that “most
injuries that result in lost work days/restricted duty” can be properly designated as flagrant
violations. Sec’y Resp. at 3. Obviously, all injuries involving serious bodily injury are injuries
of a reasonably serious nature. However, as discussed below, the question is whether lost
workday injuries that do not result in any residual debilitating and/or permanent impairment
constitute serious bodily injuries as contemplated by section 110(b)(2).
The Secretary argues that his litigating position in administering the Mine Act before the
Commission is entitled to full Chevron deference. Sec’y Resp. at 14. However, the Secretary’s
litigating position is only entitled to Chevron deference if his trial strategy is based on a
reasonable interpretation and application of the subject statutory provisions.10 In this matter,
an analysis is required to determine whether deference is owed to the Secretary’s proffered
interpretation with respect to his comparison of the degree of gravity required for a violation
that is only S&S in nature and a violation that is properly designated as both S&S and flagrant.
In determining whether the Secretary’s statutory interpretation is reasonable, it is essential to
distinguish the terms ‘proximate cause,’ ‘reasonably be expected to cause,’ and ‘serious bodily
injury’ as they relate to flagrant violations, from the terms ‘contributing cause,’ ‘reasonable
likelihood,’ and ‘injury of a reasonably serious nature,’ that are hallmarks of an S&S
designation.
3. Disposition
a. Proximate Cause vs. Contributing Cause
In addressing the meaning of proximate cause in section 110(b)(2), it is necessary to
differentiate a proximate cause from a contributing cause. A flagrant designation requires
the subject violation to be the substantial and proximate cause of a death or serious bodily injury
that has occurred, or could be reasonably expected to occur. A proximate cause is “a cause that
directly produces an event and without which the event would not have occurred.” Black’s Law
Dictionary 213 (7th ed. 1999). Synonyms include “direct cause,” “primary cause” and “legal

10

The Secretary’s reliance on Excel and Simola for the proposition that the Secretary’s
litigation position is entitled to Chevron deference is misplaced. Secretary of Labor v. Excel
Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003); Bill Simola, employed by United Taconite, LLC, 34
FMSHRC 539, 543 (Mar. 2012). In both Excel and Simola, the Secretary’s legislative stance
was adopted on appeal because it was based on his reasonable interpretation of statutory
provisions that was consistent with the legislative history and goals of the Mine Act. In Excel,
the Court found that the Secretary’s interpretation of the appropriate methodology for calculating
average dust concentrations was reasonable in view of the text of the relevant provision, the role
of the provision in the overall enforcement of the Act, and the “longstanding duration” of the
interpretation. 334 F.3d at 7-11. Similarly, in Simola, the Commission concluded that the
Secretary’s proffered interpretation with respect to the applicability of the personal liability
provisions of Section 110(c) of the Act to agents of limited liability corporations was “consistent
with the text of section 110(c)” and “fully consistent with the legislative history.” 34 FMSHRC
at 550.

36 FMSHRC Page 1786

cause.” Id. The magnitude of the seriousness of a flagrant violation, given its close causal
connection to death or serious bodily harm, or the reasonable expectation thereof, differentiates
a flagrant violation from an S&S violation.
A contributing cause is “a factor that – though not the primary cause – plays a part in
producing a result.” Id. at 212. An S&S finding “requires that the hazard contributed to [by
the violation] will result in an event in which there is an injury.” U.S. Steel Mining, 6 FMSHRC
at 1836. Thus, unlike a flagrant violation which is a primary cause of the potential injury itself,
an S&S violation is a contributing cause to the existence of a hazard that may ultimately result
in injury. This is a significant substantive distinction, rather than only a manifestation of the
required burden of proof as asserted by the Secretary. Sec’y Resp. at 4. This substantive
distinction, which the Secretary denies, renders the Secretary’s interpretation of the gravity
requirements in section 110(b)(2) unreasonable.
b. Reasonably Expected vs. Reasonable Likelihood
The term “reasonably,” as in “reasonably expected” for a flagrant designation, or
“reasonably likely” for an S&S designation, in context, means “rationally,” “adequately,” or
“sufficiently.” Roget’s 21st Century Thesaurus (3rd ed. 2009), available at http://thesaurus.com.
The comparison between the terms “expected” and “likely” is a matter of degree. Synonyms
for “expected” include “certain,” “about to happen,” and “impending.” Id. Synonyms for
“likelihood” include “chance,” “possibility,” “prospect,” “tendency,” and “trend.” Id. In other
words, an expected event is much more certain to occur than a likely event. It is clear that the
probability of injury is far greater when miners are exposed to flagrant violations as compared
to violations that are only S&S, particularly in view of the proximate causal role played by such
egregious violations. Thus, the Secretary’s contention that there is no material difference
between the “reasonably likely to result” standard under Mathies and the “reasonably could have
been expected to cause” standard under section 110(b)(2) is unpersuasive. See, Sec’y Resp. at 3.
c. Bodily Injury vs. Injury of a Reasonably Serious Nature
Although the Secretary now argues that a potential injury associated with a flagrant
violation need only result in lost workdays, it is significant that the Secretary initially believed
that the potential injury must be evaluated as at least permanently disabling. See Sec’y Resp.
at 3; see also n. 7, supra. Moreover, the degree of severity of injury contemplated by the statute
must be viewed in the context of well-accepted principles of statutory construction. The
meaning of doubtful words in an ambiguous statute may be determined by “the coupling of
words denot[ing] that they should be understood in the same general sense.” 2A Sutherland
Statutory Construction § 47.16 (7th ed.). Associating the expectation of a “serious bodily
injury” with the expectation of death evidences a Congressional intent that only grave injuries,
or the reasonable expectation of such injuries, are contemplated by section 110(b)(2). When read
in context, the statute clearly contemplates a grave injury resulting in either a significantly
debilitating and/or a permanently disabling injury, as evidenced by a life altering or life
threatening condition. Such injuries must be distinguished from acute and transitory injuries
which resolve within a reasonable period of time.

36 FMSHRC Page 1787

Moreover, although there are material differences, it is significant that both a section
107(a) imminent danger order and a section 110(b)(2) flagrant violation require the same degree
of injury, i.e., one that can be reasonably expected to cause death or serious bodily injury.
Wyoming Fuel Company, 14 FMSHRC 1282, 1291 (Aug. 1992) (holding that an imminent
danger order requires an expectation of “death or serious physical harm” before the hazardous
condition can be eliminated). It is noteworthy that section 104(d)(1) provides that if an inspector
finds that “conditions created by [a] violation do not cause imminent danger, the violation [could
still be of] such nature as could significantly and substantially contribute to the cause or effect
of a coal or other mine safety or health hazard.” In promulgating section 110(b)(2), Congress
required that a flagrant violation must pose the same risk of death or serious bodily injury as
required for an imminent danger, rather than an injury of a reasonably serious nature as required
for an S&S violation. Thus, Congress, in effect, recognized that flagrant violations are
significantly more serious than most S&S violations. Consequently, the Secretary’s
interpretation that most actual or potential lost workday injuries satisfy the requisite severity of
injury required by section 110(b)(2) is unreasonable.
It is noteworthy that imminent danger orders and flagrant violations do not conflict with,
nor are they substitutes for, each other. While both require remedial urgency, an imminent
danger requires a miner’s actual exposure to the danger posed by the hazardous condition.
Moreover, unlike a flagrant violation, an imminent danger order may be issued regardless of
the obviousness of the hazard, and without regard to whether the hazard is attributable to the
negligence of the mine operator. In addition, an imminent danger order may be issued even if
the hazardous condition does not constitute a violation of a safety standard. In fact, the plain
language of section 107(a) states that imminent danger orders can be issued in conjunction with
citations seeking a penalty under the provisions of Section 110.11

11

Section 107(a) provides:
If, upon any inspection or investigation of a coal or other mine
. . . the Secretary finds that an imminent danger exists,
such representative shall determine the extent of the area of such
mine throughout which the danger exists, and issue an order
requiring the operator of such mine to cause all persons, except
those referred to in section 104(c), to be withdrawn from, and to be
prohibited from entering, such area until an authorized
representative of the Secretary determines that such imminent
danger and the conditions or practices which caused such
imminent danger no longer exist. The issuance of an order under
this subsection shall not preclude the issuance of a citation under
section 104 or the proposing of a penalty under section 110.

30 U.S.C. 817(a) (emphasis added).

36 FMSHRC Page 1788

As a final note, limiting the flagrant provisions of section 110(b)(2) to only the most
serious of violations, as intended by Congress, will not materially adversely affect deterrence.
The most effective means of achieving compliance is the deterrent effect of 104(d)(1)
withdrawal orders issued under the Mine Act that explicitly require stoppages of production
until abatement is achieved. See, Sec’y of Labor on behalf of Shemwell v. Armstrong Coal Co.,
36 FMSHRC __, slip op. at 13 (May 2014) (dissenting), citing Amax Lead Co., 4 FMSHRC 975,
978-79 (June 1982) (holding that unwarrantable failure withdrawal sanctions are among the
strongest compliance incentives provided by the Act’s enforcement scheme). A significant loss
of production is a far greater economic loss, particularly for moderate and large operators, than
civil penalties proposed under the Act. Although the deterrent effect of civil penalties must not
be trivialized, the more important role of a flagrant violation charge is that it hopefully will
shock the conscience of, if not disgrace, a recalcitrant mine operator. Such designations may
also expose operators to greater civil liabilities for the death or serious injuries that such
violations may cause.
ORDER
In view of the above, IT IS ORDERED that, in order for the Secretary to establish that
the cited condition in Order No. 8520664 constitutes a repeated flagrant violation under section
110(b)(2), the Secretary must bear the burden of demonstrating the following criteria:
(1) A repeated flagrant violation is a flagrant violation12 that is demonstrated by either
(a) a repeated failure to eliminate the violation properly
designated as flagrant, or
(b) a relevant history of violations that also meet the
requirements for a flagrant violation with respect to
knowledge, causation and gravity, as enumerated below.13
(2) A flagrant violation must be a known violation that is conspicuously dangerous, in that it
cannot reasonably escape notice.
(3) A flagrant violation must be the substantial and proximate cause of death or serious
bodily injury that has occurred or can reasonably be expected to occur.

12

A condition designated as a repeated flagrant violation may also be attributable to
reckless conduct. Such violations may warrant higher civil penalties under section 110(b)(2).
13

This criterion adopts the Secretary’s belief that a previous violation relied upon as a
predicate must “demonstrate the threshold gravity and negligence required by section 110(b)(2).”
See page 8, supra, citing Sec’y Resp. at 11.

36 FMSHRC Page 1789

(a) A substantial and proximate cause is a dominant cause
without which death or serious bodily injury would not
occur.
(b) A serious bodily injury is a grave injury that results in
significant debilitating and/or permanent impairment.
(c) Such injury is reasonably expected to occur if there is a
significant probability of its occurrence.
The Commission’s rules authorize the Judge to require parties to submit pre-hearing
statements that will avoid unnecessary proof, advance rulings on the admissibility of evidence,
and aid in the expedition of the hearing or the disposition of the case. See 29 C.F.R. §§
2700.53(a)(2), (a)(6) and (b). Accordingly, IT IS ORDERED that the Secretary provide,
in writing, within 21 days of the date of this Order, a statement regarding whether or not
the conditions cited in Order No. 8520664, as well as the conditions in any predicate citations
the Secretary relies on to establish the subject repeated flagrant violation, satisfy each of the
above enumerated evidentiary criteria.14
With regard to elevating the cited condition to flagrant, the Secretary should state why
the subject condition and its predicate conditions are so conspicuously bad and hazardous that
they cannot reasonably escape notice. In this regard, the Secretary’s position that the subject
conditions could be reasonably expected to substantially and proximately cause death or serious
bodily injury should be supported by identification of sources of ignition,15 if any, that are
located in proximity to the cited accumulations. The Secretary should also identify any other
aggravating factors deemed relevant.
In specifically describing the aggravating factors relied upon, the Secretary should be
mindful of MSHA’s Program Policy Manual concerning enforcement of section 75.400, which
states, in pertinent part:
Accumulations of coal dust, loose coal, or the combination of the
two offer serious fire and explosion hazards and must be removed
from the mine if, in the judgment of the inspector, they would
lead to an intensification or spreading of a fire or an explosion.
In evaluating whether the coal dust and loose coal would lead to an

14

The failure to timely provide the requested detailed pre-hearing statement may result
in deletion of the repeated flagrant designation.
15

The terms “sources of ignition” and “potential sources of ignition” are not
synonymous. It is not uncommon for coal dust to accumulate on the mine floor along conveyors
and in proximity to belt rollers. I assume that the Secretary is not arguing that violations of
section 75.400 based on accumulations in proximity to, or that are touching, properly functioning
rollers constitute per se flagrant violations.

36 FMSHRC Page 1790

intensification or spreading of a fire or an explosion, the inspector
should consider all the facts concerning the deposit. For example,
float coal dust, loose coal and/or coal dust deposited near working
faces and in active haulage entries, where sources of ignition are
likely to be, are more hazardous than similar deposits in back
entries. . . .
In citing a violation, the inspector should describe fully the
conditions and practices, such as the location, dimensions, etc.
Imminent danger conditions normally can be considered to exist
when accumulations of coal dust, float coal dust, loose coal, and
other combustible materials are exposed to probable explosion and
fire ignition sources, and the conditions observed could reasonably
be expected to cause death or serious physical harm to a miner if
normal mining operations were permitted to proceed in the area
before the dangerous conditions are eliminated. There may be
times when the inspector’s interpretation of what is an
accumulation of float coal dust, loose coal and coal dust and/or
other combustible materials will differ with the opinion of others.
However, the inspector should base his decision upon the facts
surrounding each occurrence, and document such facts as the
dimensions, type, specific location, and all other related factors.
The inspector’s decision as to what is an accumulation must be an
objective one based on the facts or circumstances surrounding each
occurrence.
V MSHA Program Policy Manual, Sec. 75.400, at 46-47 (Feb. 2003) (updated Feb. 2014)
(emphasis added).

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

36 FMSHRC Page 1791

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

June 23, 2014
LESLIE A. PRIDE
Complainant
v.
HIGHLAND MINING COMPANY, L.L.C.
Respondent

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DISCRIMINATION PROCEEDING
Docket No. KENT 2010-318-D
MSHA Case No. MADI CD 2009-11

Mine: Highland 9 Mine
Mine ID: 15-02709

ORDER DENYING MOTION FOR SUMMARY DECISION
Before:

Judge Gill

This case is before me upon a complaint of discrimination, brought under section 105(c)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c) (“Act”). Discrimination
proceedings are governed by procedural rules found at 29 C.F.R. Part 2700, Subpart E
(Complaints of Discharge, Discrimination or Interference). The complainant, Leslie A. Pride
(“Pride”), filed an appeal to this court on December 3, 2009. The operator, Highland Mining
Company, L.L.C. (“Highland”), filed a motion for summary decision on June 29, 2011. After
reviewing the pleadings and the record, I find that Highland is not entitled to judgment as a
matter of law and deny Highland’s motion.
Facts
Pride began working for Highland on February 23, 2006. Pride V.S. ¶ 1. Pride injured his
back while attempting to lift a 70-pound tank of acetylene during his work at Highland in
August, and again in May, 2006. Id. at 2. After each incident, Pride requested that Highland
write an accident report, and Highland refused on the grounds that the injury was due to a preexisting condition and thus was not work-related. Id.
Following an examination in October, 2006, Pride’s physician determined that his injury
was work-related, and that he should not continue working. Exhibit A. Pride ceased working in
October, 2006. Id. at 5. Highland offered Pride payment for sickness and accident benefits
beginning in October 2006, with the stipulation that he would have to pay those benefits back

36 FMSHRC Page 1792

should he obtain worker’s compensation benefits. Id. at 11. On October 19, 2007, Highland
notified Pride of his suspension with the intent to discharge. Exhibit D. 1
On April 14, 2009, MSHA contacted Pride due to ongoing investigations about
Highland’s repeated failure to issue safety reports, and encouraged him to file a discrimination
complaint. Pride V.S. ¶ 9. Following the investigation, MSHA cited Highland for repeated
violations of Title 30 Code of Regulations for failure to issue safety reports. Exhibit D.
Because he does not have an injury report on file, Pride has been denied worker’s
compensation benefits. Pride V.S. ¶ 7. Pride has also experienced delays in receiving UMWA
pension, health card, and social security benefits. Id. at 8.
Discussion of Relevant Law
When considering a motion for summary decision, the standard is set out in Commission
Procedural Rule 67, which states that a motion for summary decision shall be granted only if, on
the basis of the entire record, there is no genuine issue of material fact, and the moving party is
entitled to summary decision as a matter of law. 29 C.F.R. § 2700.67(b). The Commission “has
long recognized that ‘[s]ummary decision is an extraordinary procedure,”’ and has analogized it
to Rule 56 of the Federal Rules of Civil Procedure, under which “the Supreme Court has
indicated that summary decision is authorized only ‘upon proper showings of the lack of a
genuine, triable issue of material fact.”’ Energy West Mining Co., 16 FMSHRC 1414, 1419 (July
1994) (quoting Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981); Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986)).

1

In 2007, Pride was charged with, and ultimately convicted for, trafficking over five
pounds of marijuana. Pride objects to and contests the admission of any information related to
such charges on the grounds that it is irrelevant to his discrimination claim. Commission rule §
2700.63 states that “relevant evidence… that is not unduly repetitious or cumulative is
admissible.” See also 5 U.S.C. 556 (exclusion of irrelevant, immaterial, or unduly repetitious
evidence). I conclude that the evidence concerning Pride’s marijuana charge is irrelevant for the
purposes of determining whether his discrimination claim survives summary decision. Such
evidence may be relevant at a hearing on the merits.

36 FMSHRC Page 1793

To establish a prima facie case of discrimination under Section 105(c) (1)2 of the Act,
Pride bears the burden of establishing that he engaged in protected activity and that the adverse
action complained of was motivated by that activity. Sec’y of Labor Ex Rel. Robinette v. United
Castle Coal Company, 3 FMSHRC 803 (Apr.1981) (quoting Sec’y of Labor on behalf of Pasula
v. Consolidation Coal Company, 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds
sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981)). A prima facie case
thus requires evidence sufficient to support a conclusion that (1) the individual engaged in
activity protected under the Act, (2) the individual suffered adverse action, and (3) the adverse
action complained of was motivated in any part by that activity. See Driessen v. Nev. Goldfields,
Inc., 20 FMSHRC 324, 328 (Apr. 1998); Pasula, 2 FMSHRC at 2786; Robinette, 3 FMSHRC at
817.
The burden of proof for a prima facie case “is lower than the ultimate burden of
persuasion.” Turner v. Nat’l Cement of CA, 33 FMSHRC 1059, 1065 (May 2011). Factors
considered in assessing whether a prima facie case exists include the operator's knowledge of the
protected activity, hostility or “animus” towards the protected activity, timing of the adverse
action in relation to the protected activity, and disparate treatment. Sec’y of Labor on behalf of
Green v. D&C Mining Corp., 33 FMSHRC 243 (Jan. 2011). The prima facie case may be
rebutted by showing either that no protected activity occurred or that the adverse action was in
no part motivated by the protected activity. Robinette, 3 FMSHRC at 818, n. 20.
Analysis
Pride claims that the discrimination occurred when Highland refused to file the injury
reports in violation of Title 30 of the Code of Federal Regulations. He argues that this resulted in
an unjust denial of his worker’s compensation benefits.
Highland argues that Pride’s claim should be dismissed as a matter of law for four
reasons: that Pride filed his discrimination complaint in an untimely manner; that he did not

2

Section 105(c) (1) of the Act, 30 U.S.C. § 815(c) (1) states in relevant part:

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

36 FMSHRC Page 1794

engage in any protected activity; that he did not suffer an adverse employment action; and that
his complaint does not seek a remedy available to him under 105(c).
The dispositive questions are whether, viewing all of the evidence in the light most
favorable to Pride, there are genuine issues of material fact, and whether Highland is entitled to
judgment as a matter of law. For reasons outlined below, I hold both that there are genuine issues
of material fact, and that Highland is not entitled to judgment as a matter of law.
I.

Untimeliness

Highland argues that because Pride filed his request approximately two and a half years after
the statutory time period had elapsed, and nearly five years after the alleged discrimination
occurred, his complaint should be dismissed for untimeliness.
Section 105(c)(2) of the Act states, “any miner… who believes that he has been…
discriminated against by any person in violation of this subsection may, within 60 days after such
violation occurs, file a complaint with the Secretary alleging such discrimination.”
The Commission has held that this 60-day time limit may be extended given a showing of
“justifiable circumstances.” Herman v. IMCO Services, 4 FMSHRC 2135, 2137 (Dec. 1982);
Hollis v. Consol. Coal Co., 6 FMSHRC 21, 24 (Jan. 1984). There is no bright-line standard for
determining whether justifiable circumstances exist. Circumstances that could establish
justifiable circumstances include the miner bringing the complaint to the attention of another
agency or to his employer within the 60-day period, or the miner failing to meet the time limit
because he is misled about, misunderstands, or is ignorant of his rights. Hollis at 24.
Pride does not contend that there were justifiable circumstances that would excuse his
delay in filing. However, even if there are no such circumstances, Highland is not entitled to
judgment as a matter of law for untimeliness because it has not provided evidence that it has
suffered material legal prejudice due to Pride’s delay in filing his discrimination complaint.
A complaint may be dismissed, even if justifiable circumstances are shown, where the
mine operator can show prejudice such as loss of critical evidence or unavailability of a witness.
Fulmer v. Mettiki Coal Corp., 30 FMSHRC 523, 525 (June 2008) (ALJ). The Commission has
held that evidence of prejudice is a primary consideration in determining whether to grant an
extension. Morgan v. Arch of Illinois, 21 FMSHRC 1381, 1387 (Dec. 1999). The Commission
has likewise held that, “absent a showing of material legal prejudice,” a complaint should not be
dismissed for untimeliness. Sec’y of Labor on behalf of Nantz v. Nally & Hamilton Enterprises,
Inc., 16 FMSHRC 2208, 2215 (Nov. 1994); see also Sec’y of Labor on behalf of Hale v. 4-A
Coal Company, Inc., 8 FMSHRC 905, 909 (June 1986) (prejudice is the “requisite foundation”
for a dismissal based on untimeliness); Sec’y of Labor v. Salt Lake County Road Department, 3
FMSHRC 1714, 1716 (July 1981) (“basic principle of administrative law that substantive agency

36 FMSHRC Page 1795

proceeding, and effectuation of a statute’s purpose, are not to be overturned because of a
procedural error, absent a showing of prejudice”).
Here, Highland has failed to show prejudice. The operator has not shown a loss of critical
evidence, nor has it shown the unavailability of any key witnesses. Highland argues that
prejudice is inherent in a delay of over 2 years, and that prejudice could be “reasonably inferred”
from the extensive delays in prosecuting the case. Sec’y of Labor v. Curtis Crick, 15 FMSHRC
735 (Apr. 1993) (ALJ). However, the principle in Crick is not applicable in this case. For one,
Pride has filed a pro se complaint. Additionally, and more importantly, Crick does not involve a
discrimination complaint, but rather concerned a civil penalty involving equipment defects. For
these reasons, I find the principle in Fulmer – that while memories may have faded, Denison
must show “concrete prejudice attributable to delays” – controlling in this case. 30 FMSHRC at
530. Thus, Pride’s complaint should not be dismissed for untimeliness.
II. Protected Activity
As outlined above, a prima facie case requires that Pride show he engaged in an activity
protected by the Act. Section 105(c) (1) enumerates five rights protected under the Act: (i) filing
a complaint related to the act, including a complaint notifying the operator of an alleged danger
or safety or health violation; (ii) being subject to medical evaluations and potential transfer under
standards published pursuant to Section 101; (iii) instituting or causing to be instituted any
proceeding related to the Act; (iv) testifying in any proceeding related to the Act; and (v)
exercising any statutory right afforded by the Act.
Pride does not allege that he engaged in any of the enumerated activities listed above.
Rather, Pride argues that he suffered discrimination because he was refused injury reports from
his accident.
In a case involving complaints about the issuance of an inaccurate report following a
miner’s accident, the evidence established that the complainant was seeking to establish his right
to an additional ten percent increase in payments under his workman’s compensation benefits,
and that the inaccuracy of the report constrained him from doing so. Mooney v. Sohio Western
Mining Co., 4 FMSHRC 440, 444 (Mar. 1982) (ALJ). The judge held that if the complaints were
“motivated by a sincere belief ... that such matters were related to safety and health conditions of
the mine, it would constitute protected activity.” Id. On review, the Commission upheld the
decision of the ALJ, but specifically declined to “address whether the judge erred in determining
that Mooney's complaints upon his return to work were not protected simply because of their
monetary basis.” Mooney v. Sohio Western Mining Co., 6 FMSHRC 510 (Mar. 1984).
This case can be distinguished in several ways. First, the operator in Mooney issued an
inaccurate injury report, whereas here Highland failed to issue two injury reports. A failure to
issue a report has a much stronger bearing on the health and safety of the mine than a complaint

36 FMSHRC Page 1796

that is largely accurate with regard to health and safety conditions. Additionally, in its
investigation of Highland’s mine, MSHA noted 13 prior instances of Highland failing to report
on-the-job injuries, which support a reasonable inference that a genuine health and safety issue
exists there. Exhibit D. Finally, the decision in Mooney was written after a full hearing, and was
based on a credibility judgment with regard to the complainant’s motive. Such a determination
would be inappropriate here, at the summary decision stage. My role in the summary decision
phase is to determine whether a factual dispute exists, not to resolve it. That determination is
reserved for hearing, where the parties can present their evidence, and I can the make the
credibility determinations required for a factual determination of these issues.
A reasonable fact-finder could find that Pride was motivated, in whole or in part, by a
concern for health and safety. However, assuming arguendo that Pride was solely motivated by
monetary concerns, in light of the fact that Highland outright refused to issue an injury report at
all, and in light of the repeated instances of Title 30 violations, Pride’s activity could be
protected even if it was solely motivated by pecuniary concerns. The complainant’s motive is
relevant, if not necessarily controlling, for the purposes of determining whether he has made a
prima facie case of discrimination. Pride’s motive must at least be considered before I can
determine whether his activity is considered protected activity. Thus, based on the available
evidence, I cannot make a conclusive determination with regard to whether Pride engaged in
protected activity.
III. Adverse Action
Highland contends that a refusal to issue safety reports does not constitute adverse action
as understood under Section 105(c) (1) of the Act. Adverse action is defined as “an act of
commission or omission by the operator subjecting the affected miner to discipline or a detriment
in his employment relationship.” Pendley v. Fed. Mine Safety & Health Rev. Commn., 601 F.3d
417, 428 (6th Cir. 2010). However, the Commission has also recognized that while
“discrimination may manifest itself in subtle or indirect forms of adverse action,” nevertheless,
“an adverse action ‘does not mean any action which an employee does not like.’” Sec’y of Labor
on behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1848 n.2 (Aug. 1984)
(quoting Fucik v. United States, 655 F.2d 1089, 1096 (Ct. Cl. 1981). The Commission has held
that the test articulated by the Supreme Court in Burlington Northern & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 57 (2006), should be applied in Mine Act cases to ascertain whether adverse
action has occurred. Sec’y of Labor on behalf of Pendley v. Highland Mining Company, 34
FMSHRC 1919 (Aug. 2012). Under the Burlington standard, adverse action consists of action
that would have been “materially adverse to a reasonable employee.” Id. This means “that the
employer’s actions must be harmful to the point that they could well dissuade a reasonable
worker from making or supporting a charge of discrimination.” Id.
Here, Pride explicitly states in his complaint that he was not fired, suspended, or laid off
as a result of his request for an accident report. Exhibit B. Indeed, Pride actually argues that he

36 FMSHRC Page 1797

should have been laid off from employment per Highland’s company policy of automatic
termination for employees that cannot return to work after 52 weeks of sick leave. Pride V.S., 3.
Instead, Pride asserts that the adverse action taken against him by Highland consisted of a refusal
to issue accident reports.
On the basis of the record, viewing the evidence in the light most favorable to the
complainant, I conclude that Highland’s refusal to issue a safety complaint constitutes adverse
action. Highland’s actions go beyond mere action that an employee does not like. Rather, Pride
has presented evidence that Highland has engaged in a pattern of denying injury reports to
miners in violation of Title 30. Exhibit D. The legislative history of the Mine Act, in relevant
part, states:
It is the Committee's intention to protect miners against not only the common forms of
discrimination, such as discharge, suspension, demotion, reduction in benefits, vacation,
bonuses and rates of pay, or changes in pay and hours of work, but also against the more
subtle forms of interference, such as promises of benefit or threats of reprisal.
S. Rep. No. 181, 95th Cong., 1st Sess. 30 (1977).
I conclude that a refusal to issue injury reports falls under the penumbra of the “more
subtle forms of interference.” One of the major purposes of the discrimination protections
contained in the Mine Act is to encourage miners to take an active role in enforcement of the
Act. “[I]f 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.” Id. Taking an active role in enforcement certainly includes requesting injury
reports, as the judge in Mooney admits. 4 FMSHRC at 444. Repeated refusal to issue injury
reports interferes with this right, and discourages miners from requesting those reports in the
future.
Additionally, Pride seeks unemployment, social security, and medical card benefits,
which he cannot obtain without an injury report on file. If true, this suggests that the action taken
has grave impacts on the quality of Pride’s life. Thus, although Highland’s actions do not fall
under the umbrella of common forms of discrimination, they fall within the penumbra of the
“more subtle forms of discrimination,” because a reasonable finder of fact could determine that
Highland is effectively using its denial to issue an injury report as a tool to inflict harm upon
Pride.
In light of the purpose of the Act, the negative effects of the action on Pride, and the
potential effect it could have on future injury reports by other miners, I conclude that Highland’s
actions constituted adverse action.
IV. Causal Nexus
In addition to establishing protected activity and adverse action, a prima facie case
requires evidence that the adverse action was motivated, in whole or in part, by the protected
activity.

36 FMSHRC Page 1798

The sufficiency of the motivation element of its prima facie case depends on inferences
that can be reasonably drawn from the record. The Commission has frequently stressed the
importance of inferential evidence when making out a prima facie case, because it is unlikely
that there will be direct evidence of discrimination when it has occurred: “[d]irect evidence of
motivation is rarely encountered; more typically, the only available evidence is indirect.” Sec’y
of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981),
rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983).
The court in Chacon identified several characteristic marks of discriminatory intent,
including (1) knowledge of the protected activity; (2) hostility towards the protected activity; (3)
coincidence in time between the protected activity and the adverse action; and (4) disparate
treatment of the complaint. Id. at 2510. Additionally, with regard to motivation, “circumstantial
evidence… and reasonable inferences drawn thereof may be used to sustain a prima facie case.”
Bradley v. Belva Coal Co., 4 FMSHRC 982, 992 (June 1982) (citing Chacon, 3 FMSHRC at
2510). It would therefore be inappropriate to grant summary decision, where multiple mutually
incompatible interpretations could reasonably be drawn from agreed-upon facts in a case. Empire
Electronics Co v. U.S., 311 F.2d 175, 180 (2d. Cir. 1962); Hanson Aggregates New York, Inc.,
29 FMSHRC 4 (Jan. 2007). “When the inferences which the parties seek to have drawn deal with
questions of motive,” the issue of multiple possible inferences becomes particularly important.
Empire Electronics, 311 F.2d at 180.
Here, there is sufficient evidence for a reasonable fact-finder to conclude that Highland’s
refusal to issue the injury reports was motivated by Pride’s request for issuance of the injury
reports. A coworker has averred that Pride informed both his immediate supervisor and the
safety director, James Allen, of his injury. Roper Aff. A reasonable fact-finder could infer that
Highland was aware of Pride’s request for the injury report. Additionally, the refusal followed
almost immediately after the complaint, and Highland maintained its refusal to issue the injury
report several times after the initial request, supporting an inference of coincidence in time
between the protected activity and alleged discrimination. Finally, there is evidence that
Highland has refused to issue injury reports to several miners over an extended period of time
which allows for a potential inference of animus towards the requests for injury reports. On these
facts, a reasonable fact-finder could infer that Highland’s refusal to issue the injury reports was
motivated, in whole or in part, by Pride’s request for the injury report.
V. Remedy
Pride seeks specific performance as his remedy: he requests that the Commission order
Highland to issue the injury report. Highland contends that this is not a remedy afforded to
miners under section 105(c) of the Act, and that he is not seeking “tangible relief.”
The Commission has held that, “so long as our remedial orders effectuate the purposes of
the Mine Act, our judges and we possess considerable discretion in fashioning remedies

36 FMSHRC Page 1799

appropriate to varied and diverse circumstances.” Sec’y of Labor v. Azko Nobel Salt Inc., 19
FMSHRC 1254 (July 1997) (quoting Sec’y of Labor on behalf of Dunmire v. Northern Coal Co.,
4 FMSHRC 126, 142 (Feb. 1982) (vacation pay and hearing expenses in addition to back pay))
(restoration of prior position following a discriminatory demotion). This notion is supported by
the text of Section 105(c)(2) which states, in relevant part:
The Commission shall have authority in such proceedings to require a person committing
a violation of this subsection to take such affirmative action to abate the violation as the
Commission deems appropriate, including, but not limited to, the rehiring or
reinstatement of the miner to his former position with back pay and interest.
30 U.S.C. § 815(c) (2). (emphasis added)
Pride seeks neither reinstatement nor back pay. His request for relief is unique, and
presents a case of first impression. I hold that, in line with the discretion afforded to judges under
Section 105(c) (2) in providing appropriate remedies, the remedy Pride seeks is appropriate.
While it may not fully “make him whole” with regard to the alleged discrimination, it would at
least partially ameliorate the harm Pride has suffered. Were it not for the alleged discrimination,
Pride readily admits that he would have been terminated after a maximum of 52 weeks of sick
leave, but he would have benefitted from UMWA and medical benefits starting from that point
onwards. Issuing the injury reports would allow Pride to enjoy future benefits, even if it does not
make him whole with respect to past benefits. Thus, I conclude that Pride has not sought relief
that necessitates dismissal as a matter of law.
Because Highland is not entitled to judgment as a matter of law, I will deny the motion,
and the case will proceed to hearing.
WHEREFORE, the motion for summary decision is DENIED.

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

36 FMSHRC Page 1800

Distribution:
K. Brad Oakley, Jackson Kelly PLLC, 175 E. Main St., Suite 500, Lexington, KY 40507
Leslie A. Pride, 681 State Rt. 365, Sturgis, KY 42459
/as

36 FMSHRC Page 1801

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9950 / FAX: 202-434-9949

June 24, 2014
AUSTIN POWDER COMPANY,
Contestant
v.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
AUSTIN POWDER COMPANY,
Respondent

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CONTEST PROCEEDING
Docket No. PENN 2012-116-R
Citation No. 7040091;01/20/2012

Mine ID: 36-00884 E24
Mine: River Hill Coal Company
CIVIL PENALTY PROCEEDING
Docket No. PENN 2012-172
A.C. No. 36-00884-281523 E24

Mine: River Hill Coal Company

ORDER REQUIRING JOINT STIPULATIONS AND RESUBMISSION OF MOTIONS
AND EXHIBITS FOR SUMMARY DECISION
Before:

Judge Rae

This case is before me upon a petition for assessment of a civil penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The parties
submitted cross-motions for summary decision on May 16, 2014 and responses on June 11,
2014. In total, the motions consisted of over 1,180 pages, including exhibits and briefs, in
addition to seven full length DVDs. This volume of information is generally not appropriate for
motions for summary decision. In addition, the parties did not submit a set of stipulated facts.
Instead, the Secretary filed a 55 page statement consisting of 181 facts.
In its response, the Respondent states that the Secretary ignored specific facts. The
Secretary has alleged numerous facts such as a unity of corporate ownership between Austin
Powder Company and each of its subsidiaries which Respondent has refuted. Thus, it appears
that there are disagreements regarding facts that are material to a determination of whether the
parent corporation and this particular subsidiary at issue here are a unitary operator; the very
issue upon which the parties seek a summary decision.

36 FMSHRC Page 1802

In a conference call, the Respondent stated that it did not stipulate to the set of facts that
the Secretary submitted, but that it would not object to the facts if the judge reviewed the
underlying documents that the Secretary stated his facts were based on. This would effectively
require me to carefully review each exhibit (1000+ pages and seven DVDs), make a
determination as to what information in each is material to the issue at bar, cross-reference it
with the Secretary’s list of unstipulated facts and then cull through the Respondent’s motion and
brief to determine whether they are in agreement with those facts. Essentially, the parties seek
the court to do their homework for them.
In addition, the parties submitted motions that contained information and arguments
seeking a determination on whether all of Respondent’s subsidiaries should be considered a
unitary operator with Austin Powder Company.1 I do not have broad and unfettered jurisdiction
to consider or decide whether all of Austin Powder’s subsidiaries share a similar parentsubsidiary relationship and whether they should be considered a unitary operator. These motions
for summary decision arise as a result of a partial settlement of the underlying citation accepted
by a former ALJ of this Commission.2 Reserved was the issue of whether the parent company’s
size and points for past violations should be considered in proposing the appropriate penalty for
the citation issued to the River Hill Coal Company. Only this particular issue, involving the
River Hill Coal Company mine, is before me, and only information about this mine and its
corresponding subsidiary, Austin Powder Northeast, LLC, and its relationship with Austin
Powder Company will be considered in ruling on these cross-motions.
Respondent has focused on the manner in which MSHA made its determination under the
Berwind Natural Resources3 decision to determine whether this subsidiary should have an
independent mine id number. It appears that Respondent would seek a determination whether
MSHA acted arbitrarily or capriciously in making this determination although it correctly
acknowledges that I do not have jurisdiction to make such a determination. This information is
therefore irrelevant and will not be considered by me.4

1

There are several other dockets involving violations issued to other Austin Powder
subsidiaries that are assigned to other ALJs and are not before me.
2

Judge William Steele issued a Decision Approving Partial Settlement on May 2, 2013.
He has since retired and this docket was reassigned to me on January 2, 2014.
3

See Berwind Natural Resources Corp, et al, 21 FMSHRC 1284 (1999).

4

The Secretary had filed a motion in limine to exclude evidence of MSHA’s
determination that Austin Powder and its subsidiaries constituted a unitary operator. The motion
was denied by Judge Steele for several reasons, generally related to the fact that such evidence
may be helpful to him at trial and there being no risk of prejudice in a bench hearing. I find that
the consideration of this evidence on cross-motions for summary judgment relating solely to the
issue of the appropriate penalty for this citation is overly burdensome, irrelevant, and as stated
above, raises an issue beyond my jurisdiction herein.

36 FMSHRC Page 1803

WHEREFORE, it is ORDERED in accordance with the guidelines provided above that
the parties shall cull out the relevant facts from each of the documents, DVDs etc. submitted with
their respective motions and reduce them to a Joint Stipulation of Material Facts citing the
specific supporting exhibit by number and page or DVD number. The joint stipulated facts shall
pertain only to this mine and Austin Powder Northeast, LLC and its relationship to the parent
company. It is FURTHER ORDERED that any information included in any motion not set
forth in the stipulated facts is also referenced by exhibit number, page and line number. It is
FURTHER ORDERED that the parties resubmit supporting documents, DVD’s etc. that are
relevant only to the relationship between this cited mine, Austin Powder Northeast, LLC, and
Austin Powder Company. It is FURTHER ORDERED that each party shall resubmit its motion
in support of summary decision based on the joint stipulated facts and that the motions shall be
no more than 30 pages in length. The joint stipulated facts, motions and exhibits shall be
submitted within 3 weeks (21 days) of this order. Extensions will not be granted absent good
cause.

/s/ Priscilla M. Rae
Priscilla M. Rae
Administrative Law Judge
Distribution:
Stephen Turow, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Blvd., 22nd
Floor, Arlington, VA 22209
Christopher Pence, Esq., Wm. Scott Wickline, Esq., Hardy Pence, PLLC, 500 Lee Street East,
Suite 701, P.O. Box 2548, Charleston, WV 25329

36 FMSHRC Page 1804

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
th
721 19 STREET, SUITE 443
DENVER, CO 80202-2536
TELEPHONE: 303-844-5266 / FAX: 202-844-5268

June 26, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,
v.
M-CLASS MINING, LLC,
Respondent.

:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2013-47
A.C. No. 11-03189-300361-01
Docket No. LAKE 2013-123
A.C. No. 11-03189-303475
Mine: MC #1 Mine

ORDER DENYING RESPONDENT’S MOTION TO COMPEL
Before:

Judge Miller

These cases are before me upon a petition for assessment of a civil penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). Respondent, MClass Mining, filed a Motion to Compel. Subsequently, the Secretary filed a Response to the
Motion. For the reasons set forth below, I DENY Respondent’s Motion.
The above captioned dockets include four 104(d)(2) orders issued to M-Class in June and
August of 2012. Respondent represents, in its motion, that the parties reached a settlement of
one of the four orders. Three orders remain in dispute.
In April of 2013 M-Class learned that MSHA was conducting a 110(c) special
investigation into the facts and circumstances surrounding the three remaining orders. These
cases were stayed until April 1, 2014 in hope that MSHA would be able to complete its
investigation and the 110(c) matter could be consolidated with these cases. However, MSHA
was unable to complete the investigation prior to the expiration of the stay, and these matters
were set for hearing on July 23, 2014. On May 1, 2014 I issued an Order Denying Motion to
Extend Stay explaining that MSHA had ample time to complete its investigation given that the
citations and orders had been issued approximately two years prior. The Secretary, in his
response to M-Class’s Motion to Compel, indicates that the investigation remains “open” but
does not explain the status of the case.
Prior to the stay of these matters, in December of 2012, M-Class filed discovery requests
with MSHA seeking “all documents relating to the . . . special investigation of the incident(s)
that is (are), in part, the subject of this matter including but not limited to, copies of . . .
investigators’ notes; photographs; transcripts of interviews; tapes of interviews, memoranda;
reports and draft reports, notes, correspondence and records of any other MSHA personnel.”
Mot. Ex. 1 p. 7. The Secretary objected to the “vague, overly broad and burdensome” request,
which “seeks to discover information protected by the confidential informant privilege, attorneyclient privilege, attorney work product privilege and deliberative process privilege.” Mot. Ex. 2

36 FMSHRC Page 1805

p. 11. The Secretary also responded that the special investigation being undertaken as a result of
the violative conditions found by the MSHA Inspectors was currently open and active, and
therefore, the documents related to the special investigation would not be produced. Id. at 11-12.
On June 3, 2014 M-Class filed the Motion to Compel in which it seeks to have the court
compel the Secretary to “complete responses to Respondent’s First Set of Interrogatories and
Requests for Production of Documents and to authorize the deposition of Special Investigator
Robert Bretzman.” Mot. 1. M-Class argues that, while the Secretary asserts that various
privileges apply to the documents sought, he does not specifically identify those documents and
fails to identify the basis for non-disclosure of the documents in the special investigation file. Id.
at 3. Further, Respondent argues that, because the Secretary has not produced a privilege log, it
is “left to speculate what MSHA is withholding and cannot evaluate the appropriateness of
MSHA’s objects.” Id. at 4. Respondent states that the Secretary’s assertion of a blanket
privilege is inappropriate and that it is well-settled law that certain documents associated with a
Section 110(c) investigation are discoverable and a blanket refusal to produce any material from
the file is inappropriate. In making its argument, Respondent relies in part on Judge Feldman’s
decision in Root Neal & Company, 21 FMSHRC 135 (July 1999) (ALJ) in which he directed the
disclosure of certain documents after the 110(c) investigation had been completed and a decision
made that an agent case would not be pursued by MSHA. I am not bound by the decisions of
other administrative law judges but, nevertheless, I find that Judge Feldman’s case is
distinguishable from the instant matter. Id. at 838. Here, the investigation has not been
completed and MSHA has not yet determined whether it will pursue charges.
On June 9, 2014 the Secretary filed a response to the motion. The Secretary asserts that
the 110(c) “investigation is currently open, and until such time as the results are reviewed,
finalized, and the decision is made whether to proceed with a case against Respondent’s agents
personally, the Secretary argues that the information contained in the Special Investigator’s file
is subject to privileges outlined in the Secretary’s response” to Respondent’s discovery request.
Sec’y Response 2. The Secretary also argues that special investigations are conducted by MSHA
in anticipation of litigation and, accordingly, a privilege attaches to the information sought by
Respondent. Id. Further, because Respondent cannot demonstrate that it is unable to gather
substantially the same information by other means without undue hardship, the Secretary need
not turn over any of the documents sought. Id. at 2-3. The Secretary also notes that, because the
investigation remains open, counsel for the Secretary is not in possession of any of the requested
documents, and only has the documents pertaining to the orders at issue in LAKE 2013-47 and
LAKE 2013-123, all of which have been provided to Respondent in preparation for the hearing
into the orders in question. Id. at 3. Finally, the Secretary notes that, at present, the issue of
“whether . . . agents of Respondent willfully disregarded the standards is not before this court[.]”
Id. Rather, the only issues before the court are whether the alleged violations occurred and if the
violations constituted an unwarrantable failure to comply. Based on the foregoing, the Secretary
asserts that privilege protects the documents sought, and, because any deposition testimony from
Investigator Bretzman would be related to protected documents, the deposition is unnecessary.
Id. at 4.
Commission Procedural Rule 56 permits discovery by a number of methods, including
production of documents and deposition. 29 C.F.R § 2700.56(a). The rule further provides that

36 FMSHRC Page 1806

parties “may obtain discovery of any relevant, non-privileged matter that is admissible evidence
or appears likely to lead to the discovery of admissible evidence.” 29 C.F.R § 2700.56(b)
(emphasis added). In the event a party fails to respond to a discovery request, or objects to a
request, the party seeking discovery may petition the court to compel the non-moving party to
respond. 29 C.F.R § 2700.59.
Respondent, M-Class, has petitioned the court to compel the Secretary to produce (1)
documents generated as part of MSHA’s special investigation into potential 110(c) charges
against an agent of Respondent, and (2) the special investigator for deposition. As the Secretary
notes, the investigation into the 110(c) matter is ongoing, and is a separate matter from the
violations that are at issue in this case. I agree with the Secretary that the documents contained
in the special investigation file are subject to the work product, deliberate process and informant
privileges. I also find that the deposition of the special investigator is not appropriate given that
the information he has gathered is subject to the same privileges. Further, I find that, given the
questioned relevance of the information sought as it relates to this proceeding, the fact that the
investigation has not been completed, and the ability of the Respondent to obtain substantially
the same information on its own accord, the Respondent’s motion should be denied. Finally, I
noted that, unlike a FOIA request, there is no requirement that a party responding to discovery
prepare a privilege log and particularly prepare a privilege log for a file that is not a part of the
cases at issue here.
It is important to distinguish this penalty proceeding against the mine operator from
potential 110(c) proceedings against agents of the mine. While run-of-the-mill penalty
proceedings against mine operators are initiated for, among others, the purpose of obtaining
judgments against operators for violations of the Act, 110(c) proceedings are initiated for the
purpose of obtaining judgments against individual agents of a mine. Unlike standard penalty
proceedings, 110(c) charges are preceded by a special investigation conducted by a MSHA
Special Investigator. Generally, the investigation is initiated following the issuance of citations
or orders to the mine operator. The investigation commonly includes interviews of employees
of the operator, some of whom may be confidential miner informants. Often, a representative of
the mine is present for statements given to the investigator that are not subject to the informant’s
privilege, and most information obtained through these interviews is available to the mine
operator. The investigation eventually results in a report and MSHA decision whether to file
110(c) charges. The special investigation into whether to charge agents is conducted for the sole
purpose of determining whether the agents should be assessed a separate penalty and, therefore,
is undertaken wholly in anticipation of that litigation. While the two proceedings are frequently
consolidated and heard at the same time, MSHA is often slow in completing its investigation
and, in order to keep the facts and evidence associated with the original violation from becoming
stale, the underlying orders are sometimes heard on their own as any other penalty case. See
e.g., Capitol Cement Corp., 21 FMSHRC 883 (Aug. 1999)
The instant proceedings involve petitions for penalty filed by the Secretary against
Respondent for four alleged violations of mandatory standards. While the Secretary
acknowledges that a 110(c) investigation has been undertaken, the investigation is not complete
and MSHA has yet to reach a decision whether to charge individual agents of the mine. As a
result, at present, no 110(c) proceeding exists and consolidation of the issues is impossible. In

36 FMSHRC Page 1807

the event the Secretary completes the special investigation and an agent case is filed with the
Commission, it is possible that the 110(c) proceeding could be consolidated with the above
captioned dockets and at that time, the special investigation file may be subject to discovery
requests However, until that occurs, the scope of this proceeding is limited to operator liability
for the four alleged violations contained in the above captioned dockets. Therefore, discovery of
the special investigation file and deposing the special investigator has no place in this case.
Instead this is a normal penalty case and, based on the Secretary’s representation to the court, all
documents relevant to the underlying orders have been produced by the Secretary.
The Secretary has asserted that multiple privileges attach to the requested materials. I
agree. First, I find that the work product privilege attaches to the investigatory file documents
sought by the Respondent. In Asarco Inc., 12 FMSHRC 2548, 2557-2558 (Dec. 1990) the
Commission explained that the work product privilege is a “qualified immunity against
discovery.” A party may withhold otherwise discoverable materials if they are (1) documents
and tangible things; (2) prepared in anticipation of litigation or for trial; (3) by or for another
party or by or for that party’s representative. Id. at 2558; Fed R. Civ. P. 26(b)(3). Here, the
materials sought by M-Class meet all three elements of the test.
The materials sought by M-Class are documents and tangible things prepared by a party
to the case. The discovery request seeks, in pertinent part, “all documents relating to the . . .
special investigation of the incident(s) that is (are), in part, the subject of this matter including
but not limited to, copies of . . . investigators’ notes; photographs; transcripts of interviews; tapes
of interviews, memoranda; reports and draft reports, notes, correspondence and records of any
other MSHA personnel[.]” Mot. Ex. 1 p. 7. The Commission has acknowledged that it is not
required that the materials “be prepared by or for an attorney.” Asarco Inc.,12 FMSHRC 2548,
2558 (Dec. 1990). Clearly the items sought are documents and/or tangible things produced by
the special investigator or other representative of the Secretary. I find that the materials meet the
first and third elements of the work product test.
The materials sought were prepared in anticipation of litigation. The phrase “prepared in
anticipation of litigation” was defined in Hickman v. Taylor, 329 U.S. 495, 505(1947) where the
court framed the issue as being “the basic question” of whether one party's counsel may “inquire
into materials collected by an adverse party's counsel in the course of preparation for possible
litigation.” The Commission has stated that a “major function of an MSHA special investigation
is to determine whether litigation should be commenced under section 110(c) . . . of the Mine
Act.” Asarco Inc.,12 FMSHRC 2548, 2559 (Dec. 1990). Accordingly, materials generated in
the course of the special investigation are prepared in anticipation of litigation. Here, the
materials contained in the special investigation file were generated, and are possibly still being
generated, in anticipation of potential charges against individual agents of the mine. The
Commission has recognized that, where “two cases are closely related,” the “documents prepared
for one case have the same protection in a second case.” Id. While MSHA has yet to decide
whether to pursue an agent case, given that any potential agent case will stem from the facts and
circumstances surrounding the orders at issue in this proceeding, these cases are clearly “closely
related.” As a result, the protection afforded the materials in the special investigation file, which
were generated in anticipation of a 110(c) proceeding, extends to the instant proceeding, thereby
satisfying the second element of the work product test.

36 FMSHRC Page 1808

While the materials satisfy the Commission’s three part test, they may be subject to
discovery “upon a showing that the party seeking discovery has substantial need of the materials
in the preparation of the party's case and that the party is unable without undue hardship to obtain
the substantial equivalent of the materials by other means.” Fed. R. Civ. P. 26(b)(3). I find that
no such showing has been made. Respondent speculates that the information in the file would be
beneficial “at trial for impeachment and refreshing recollection.” Mot. 6. The Commission has
acknowledged that “by itself, the desire to determine through discovery whether potential
impeachment material exists within protected work product does not constitute a ‘substantial
need’ for purposes of the work-product privilege.” Consolidation Coal Co., 19 FMSHRC 1239,
1243 (July 1997). Further, and as noted by the Secretary, the discoverable information
contained in special investigation reports consists of interviews of employees of the mine
operator; information which is certainly possible for the mine operator to obtain on its own
accord. I find that Respondent has not demonstrated a substantial need for the material in the
special investigation file, and the contents of the file are protected by the work product privilege.
Moreover, I find that the special investigator’s deposition testimony “would only be relevant
insofar as being related to the documents” which I have already found to be subject to work
product privilege. Accordingly, I refuse to compel the Secretary to produce Special Investigator
Bretzman for deposition.
I note that, presumably, the special investigation file includes documents related to the
underlying orders at issue in the above captioned cases. While that information may be in the
special investigation file, the Secretary represents that all information pertaining to the orders at
issue in these dockets has already been turned over to Respondent. As a result, I need not
compel production of those documents, which are likely to be duplicative of those already in the
possession of Respondent. To the extent that the Secretary has not turned over discoverable
documents generated prior to the initiation of the 110(c) investigation, he is ordered to do so.
I also find that the informant privilege applies to the materials sought by M-Class. In
Bright Coal Co., 6 FMSHRC 2520, 2522 (Nov. 1982) the Commission recognized that the
informant privilege allows the Secretary to “withhold from disclosure the identity of persons
furnishing information of violations of law to [MSHA].” See 29 C.F.R. § 2700.61 (requiring that
a judge “shall not, except in extraordinary circumstances, disclose or order a person to disclose
to an operator or his agent the name of an informant who is a miner.”) In Asarco Inc., 14
FMSHRC 1323, 1329-1330 (Aug. 1992) the Commission explained that the privilege protects
from disclosure material that “tend[s] to reveal an informant’s identity.” Here, the Secretary has
asserted that the information contained in the special investigation file is protected by the
informant’s privilege. As previously stated, special investigation files routinely contain
interviews and statements of miner informants. Undoubtedly, interviews and statements of
miner informants, as well as reports mentioning the names of those informants, would reveal the
informant’s identity and are subject to the privilege.
The informant privilege may be defeated if a judge conducts a balancing test and
determines that the “respondent’s need for the information is greater than the Secretary’s need to
maintain the privilege to protect the public interest,” Bright Coal Co. at 2526. I find that
Respondent has failed to make such a showing. Factors to be considered in conducting this

36 FMSHRC Page 1809

balancing test “include whether the Secretary is in sole control of the requested material or
whether . . . [M-Class] ha[s] other avenues available from which to obtain the substantial
equivalent of the requested information.” Id. I have already explained that the discoverable
information contained in special investigation files consists of interviews of employees of the
mine operator; information which is certainly possible for the mine operator to obtain on its own
accord. As a result, I find the balance does not tip in favor of disclosure of the information.
Moreover, to reiterate, the Secretary represents that information in the 110(c) investigation file is
not being relied upon to support the Secretary’s penalty case against the mine operator.
Respondent speculates that the information in the file would be beneficial “at trial for
impeachment and refreshing recollection.” Mot. 6. However, I find that the need to impeach or
refresh the recollection of potential witnesses does not overcome the Secretary’s need to
maintain the privilege to protect the public interest and is not “essential to fair determination.”
Bright Coal Co. at 2526.
The 110(c) special investigation has not been completed, MSHA has not decided whether
to charge an agent of the operator, and the issue of agent liability is not before me. Given the
objective of 110(c) investigations and the government’s interest in the investigation not being
obstructed, it would be inappropriate for the court to compel the production of the investigation
documents and deposition of the special investigator prior to the conclusion of the investigation.
Moreover, it would be inappropriate for the court, prior to the completion of the investigation, to
order an in camera review of the documents for the purpose or analyzing whether privilege
attaches.
With the scope of this proceeding in mind, I find that, based on the information presently
before me, it is unlikely that the documents and deposition testimony sought in Respondent’s
Motion to Compel are relevant to the above captioned proceeding, and that, even if they are
relevant, as discussed above, they are subject to the work product and informant privileges. All
information necessary for the successful defense of the orders at issue in this case has been
provided by the Secretary and is otherwise available to the operator through the mine.
Additionally, when a mine operator challenges a citation or order, I assume that they do so in
good faith and that they have investigated the matter and are aware of all of their defenses to the
citation or order. A special investigation into the actions of an agent of the operator will not alter
or add to the reasons the mine has for contesting the underlying orders.
The threshold issue of any discovery dispute is whether or not the information sought is
relevant. Rule 56 makes clear that, even in the event that evidence is not privileged, it must still
be relevant in order to be discoverable. Here, the information sought by Respondent is related to
the issue of agent liability. The issue of agent liability is not before me and, therefore, MSHA’s
investigatory documentation and the investigator’s deposition testimony, which presumably
would not include first-hand knowledge of the events in question, is unlikely to be relevant to the
underlying orders at issue.
Finally, while I find no merit to the Secretary’s argument that the file is not in the hands
of the attorney for MSHA, I find, as discussed above, that the file is subject to privilege and is
not required to be disclosed. The file contains a separate and distinct investigation, and that
investigation occurred after the violations that are alleged in this case were issued. While the file

36 FMSHRC Page 1810

is in the hands of the Secretary, it does not, as noted, contain information that is being withheld,
that would be relevant to the underlying citations at issue in this case. The mine operator can be
prepared for hearing based upon the files in these cases and the information disclosed by the
Secretary without the disclosure of any further material that was gathered solely for the purpose
of determining whether or not a separate penalty should be assessed against an agent of the
operator. However, that file and information contained therein may be required to be disclosed
when and if an agent case is filed.
Respondent’s Motion to Compel is DENIED.

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

Distribution:
Travis Gosselin, Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn St.,
Room 844Chicago, IL 60604-1502
Christopher Pence, Hardy Pence, PLLC, P.O. Box 2548, Charleston, WV 25329

36 FMSHRC Page 1811