July and August 2019
TABLE OF CONTENTS

COMMISSION DECISIONS
07-11-19

SIMS CRANE

SE 2016-81

Page 393

08-13-19

RICHMOND SAND & STONE, LLC

YORK 2018-31-M

Page 402

ADMINISTRATIVE LAW JUDGE DECISIONS
07-05-19

PEABODY MIDWEST MINING,
LLC

LAKE 2017-0073

Page 409

07-11-19

SEC. OF LABOR O/B/O TYLER
HERRERA v. FIELD LINING
SYSTEMS, INC.

WEST 2019-0364DM

Page 445

07-19-19

VULCAN CONSTRUCTION
MATERIALS, LLC

SE 2018-0239

Page 449

08-02-19

NORTHSHORE MINING COMPANY LAKE 2018-277-M

Page 474

08-16-19

KNIGHT HAWK COAL, LLC

LAKE 2019-0087-R

Page 482

08-19-19

KNIGHT HAWK COAL, LLC

LAKE 2019-0087-R

Page 522

i

ADMINISTRATIVE LAW JUDGE ORDERS
07-23-19

JAMES C. SCOTT, employed by
MILL BRANCH COAL CORP., and
DONNIE B. THOMAS, employed by
MILL BRANCH COAL CORP.

VA 2018-0103

Page 563

08-19-19

BLACKJEWEL LLC

VA 2019-86

Page 568

08-20-19

SEC. OF LABOR O/B/O JAMES
MCGAUGHRAN v. LEHIGH
CEMENT COMPANY, LLC

PENN 2019-0144-DM Page 572

08-30-19

BLACKJEWEL LLC

VA 2019-0132

Page 574

08-30-19

BLACKJEWEL LLC

VA 2019-0139

Page 576

ii

Review was granted in the following cases during the months of July and August 2019:
Secretary of Labor v. James C. Scott and Donnie B. Thomas, employed by Mill Branch Coal
Corp., Docket Nos. VA 2018-103, et al. (Judge Feldman, July 23, 2019)
Secretary of Labor v. Hopedale Mining, LLC., Docket No. LAKE 2019-149 (Judge Miller, June
24, 2019)

No case review was denied during the months of July and August 2019.

iii

COMMISSION DECISIONS

41 FMSHRC Page 392

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

July 11, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. SE 2016-81

v.
SIMS CRANE
BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, 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 single citation at issue alleges that the manner
in which a Sims Crane employee exited the cab and descended from a crane on a lowboy trailer
violated the fall protection standard at 30 C.F.R. § 56.15005.1
Sims argued below that the employee’s method of egress was consistent with safe access
standards issued by the International Organization for Standardization (“ISO”) and incorporated
by the Mine Safety and Health Administration (MSHA). The Administrative Law Judge found
that Sims failed to provide certification of ISO compliance which he believed was directed by
MSHA guidance, rejected Sims’ argument, and found a violation. 39 FMSHRC 116, 124-25
(Jan. 2017) (ALJ).
On appeal, Sims claims that the Judge found a violation based solely on Sims’ failure to
provide documentation of ISO compliance, and that this constitutes legal error. Sims argues that
a lack of ISO documentation is not a proper basis for a violation of the standard, and that the
Judge improperly shifted the burden of proof by requiring Sims to establish compliance rather
than requiring the Secretary to establish a violation.
For the reasons below, we find that the Judge improperly shifted the burden of proof,
reverse the Judge’s decision, and vacate the citation.

1

The standard states: “Safety belts and lines shall be worn when persons work where
there is a danger of falling.” 30 C.F.R. § 56.15005. This may be satisfied by compliance with
the Occupational Safety and Health Administration’s fall protection standard, which requires
employees working at a height of six feet or more to be protected from falling by the use of
guardrails, safety nets, or personal fall arrest systems. Ex. R-3 (MSHA Program Policy Letter
No. P14-IV-02 (Mar. 25, 2014)).

41 FMSHRC Page 393

I.
Factual and Procedural Background
A. Factual Background
The events at issue took place at a phosphate rock mine and processing facility in Florida,
operated by Mosaic Company (“Mosaic”). Sims Crane is a contractor that was providing crane
rental and services to Mosaic at the time of these events.
In September 2015, MSHA Inspector Robert Peters was driving to Mosaic’s
administrative offices when he saw a crane on a lowboy trailer on the side of the road.2 The
crane was being prepared for transport by William Nasrallah, a Sims employee. Peters saw
Nasrallah move from the cab of the crane toward the left front fender. Peters turned away for a
moment to park, and when he looked back, Nasrallah had descended to the ground. The entire
process took less than a minute. After parking, Peters approached the crane and issued a citation
alleging a violation of section 56.15005.3 He testified that he issued the citation because the
fender was narrow and not designed for use as a walkway, creating a danger of falling, and that
Nasrallah had not used fall protection such as handholds while crossing.4 Tr. 42, 52, 71-72.
At the time, the inspector assumed that Nasrallah had descended via the crane’s valve
bank. Tr. 37-40. It was later determined that Nasrallah left the cab, took two or three steps on a
walkway across the fender area, then descended by way of a ladder at the front of the crane as it
was positioned on the lowboy trailer. The crane had three ladders: one at each front corner and
one under the cab. The inspector was unaware of the front ladders when he issued the citation.
Tr. 63-64, 78.
Nasrallah maintained three points of contact while exiting the cab and descending the
ladder, but conceded that handholds were not available while crossing the fender. He stated that
this was his normal procedure for exiting this type of crane when loaded on a lowboy trailer and
that his procedure felt safer than using the ladder directly beneath the cab, which had a 34-inch
drop from the last step to the ground. Tr. 116.
The area Nasrallah crossed while travelling from the cab to the ladder was approximately
seven feet above the ground, six feet in length, three feet wide, and covered in anti-skid material.
Tr. 43-44, 51, 98-99, 113, 124-28. The inspector initially estimated the width at 20 inches, but
2

A lowboy trailer has two drops in deck height, which allows the deck to be extremely
low compared to other trailers.
3

The inspector also issued an imminent danger order pursuant to section 107(a) of the
Act, 30 U.S.C. § 817(a). The Judge found the operator did not timely contest the imminent
danger order and it was therefore not before him. 39 FMSHRC at 119 n.4. The order was
subsequently reopened and vacated. Unpublished Order, No. SE 2017-97-RM (Dec. 7, 2018)
(ALJ) (finding that the miner’s descent from the crane could not reasonably be expected to result
in imminent serious harm).
4

MSHA subsequently proposed a civil penalty of $270 for the alleged violation.

41 FMSHRC Page 394

conceded that he did not measure the width or look closely at the crane. Tr. 43-44, 71, 80. He
was apparently unaware of the anti-skid coating when he issued the citation. Tr. 73.
Robert Berry, Sims’ Safety Director, testified as to the feasibility of various forms of fall
protection when accessing or egressing this model of crane. He explained that tying-off is not
feasible because a standard seven foot lanyard offers no protection for someone seven feet above
the ground. He agreed that it is impossible to maintain three points of contact when crossing the
deck; however, he testified that the crane was manufactured in compliance with ISO standards
regarding safe access and egress. Specifically, the crane has non-skid surfaces, handholds at key
locations, and ladders at the front and at the cab. Tr. 93, 97-98, 103.
B. Summary of Relevant ISO Standards
The International Organization for Standardization develops and publishes international
standards for a wide variety of products, services and systems. Certification of compliance with
an ISO standard is conducted by external certification bodies. Two standards have been
referenced in this matter.
The primary standard at issue is ISO 2867, titled “Earth-Moving Machinery Access
Systems.” The standard requires in part that all access system surfaces used for walking must be
slip resistant. The standard also encourages the use of three-point support when ascending,
descending, or moving while more than one meter above the ground, but states that two-point
support is acceptable for stairways, ramps, walkways and platforms. Ex. R-5, §§ 4.1.5, 4.1.6.
ISO 2867 has been incorporated into MSHA’s guidance through Public Information
Bulletin (“PIB”) No. P10-04, titled “Safe Access, Fall Prevention and Fall Protection involving
Self-Propelled Mobile Equipment.” Ex. R-2. The PIB lists methods for reducing the risk of falls
from mobile equipment, such as: inspecting equipment for icy, wet or oily areas; ensuring that
walkways are no narrower than their original manufactured widths and have slip-resistant
surfaces; and ensuring that handrails are within easy reach at critical locations. The PIB then
states that, “[i]n addition, equipment manufacturers may be providing safe access, fall prevention
and fall protection by complying with ISO 2867.” The PIB notes that “Operators are responsible
for providing documentation to verify that their equipment is ISO 2867 certified,” which
inspectors may then consider in determining whether safe access has been provided. Id.
ISO 11660, titled “Cranes – Access, Guards and Restraints,” addresses general safety
requirements for crane access systems, dependent on whether the access relates to control
stations or maintenance. For example, the standard outlines the appropriate dimensions and
characteristics for ladders, handrails, walkways, and other access system elements. Ex. R-7.
As discussed below, the Judge declined to consider ISO 11660 in his decision because it has not
been incorporated by MSHA into the regulatory program. Sims has not contested that
determination.
C. The Judge’s Decision
The Judge found that Nasrallah crossed the walkway on the fender of the crane to get
from the cab to the front ladder—a distance of six feet at a height of seven feet—without
handholds or other forms of fall protection. 39 FMSHRC at 121-22.

41 FMSHRC Page 395

The Judge then addressed Sims’ argument that Nasrallah’s method of egress did not
violate section 56.15005 because it was consistent with ISO and MSHA guidance. The Judge
was persuaded that the method of egress was consistent with ISO 2867, and found that this
standard had been incorporated by MSHA. However, he held that PIB No. P10-04 requires
operators to provide documentation certifying that equipment is ISO compliant and that Sims
had failed to provide such documentation for the crane at issue. Accordingly, the Judge rejected
Sims’ compliance argument and found a violation. Id. at 122-25. He stated that if Sims had
provided documentation that the crane was ISO certified, then pursuant to MSHA guidance, he
would not have found a violation.5 Id. at 127.
The Judge also reduced the likelihood of injury to “unlikely.” He found that the violation
contributed to a falling hazard, but that the Secretary failed to establish that taking two or three
steps across a three-foot wide, slip-resistance surface was reasonably likely to result in a fall.
Id. at 126. Finally, the Judge reduced the negligence to none and imposed a $100 penalty. Id.
at 126-27.
II.
Disposition
The Mine Act imposes on the Secretary the burden of proving an alleged violation by a
preponderance of the evidence. See, e.g., Garden Creek Pocahontas Co., 11 FMSHRC 2148,
2152 (Nov. 1989). In other words, the Secretary must convince the trier of fact that the
allegation is more probable than not. RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070
(Sept. 2000), aff’d, 272 F.3d 590 (D.C. Cir. 2001). To prove a violation of section 56.15005,
the Secretary must show by a preponderance of the evidence that person(s) were working where
there was a danger of falling without adequate fall protection. If the Secretary fails to meet this
burden then there is no violation, irrespective of any counterarguments. We find that the Judge
in this instance centered his analysis on the strengths and weaknesses of Sims’ counterarguments
without first determining whether a preponderance of the evidence supported the Secretary’s
claims. Accordingly, we find that the Judge improperly shifted the burden of proof.
The Judge did find as a factual matter that Nasrallah walked across the left fender—a
distance of six feet at a height of seven feet—without handholds, and noted that the “Secretary
thus argues that Nasrallah’s travel across the fender wheel well without maintaining three points
of contact constitutes a violation of section 56.15005.” 39 FMSHRC at 122. However, he then
moved directly into an analysis of Sims’ claim that the method of egress complied with MSHA
guidance.6 Despite finding persuasive evidence that the crane complied with ISO 2867, the
Judge ultimately rejected Sims’ argument, because Sims had not provided the documentation
5

The Judge was also persuaded that the method of egress was consistent with ISO
11660, but found that the standard had no bearing on the violation because it had not been
incorporated by MSHA. 39 FMSHRC at 124.
6

The Judge’s analysis described herein is embedded in the “significant and substantial”
discussion within the decision. 39 FMSHRC at 122-25; see Mathies Coal Co., 6 FMSHRC 1,
3-4 (Jan. 1984). There is no separate discussion solely addressing the fact of the violation.

41 FMSHRC Page 396

required by MSHA’s guidance incorporating this ISO standard.7 The Judge concluded: “In the
absence of such certifying documentation, I reject Respondent’s argument that Nasrallah’s egress
procedure complied with MSHA’s recommendations in PIB No. 10-04. I therefore find that a
technical violation occurred.” 39 FMSHRC at 122-25.
Conspicuously absent from the Judge’s decision is any analysis of the Secretary’s
underlying claim that travelling across this particular walkway without maintaining three points
of contact violates section 56.15005. Rather than requiring the Secretary to prove by a
preponderance of the evidence that the scenario at issue presented a danger of falling
(particularly in light of the additional evidence presented by Sims), it appears that the Judge
apparently inferred that the scenario was presumptively violative and then turned his attention to
Sims’ counterargument.
Upon rejecting the counterargument, the Judge then found a violation, without returning
to the Secretary’s underlying claim. By doing so, the Judge improperly placed on Sims the
burden of proving that the method of egress was compliant (to establish a non-violation), rather
than requiring the Secretary to meet his burden of proving that it was unsafe (to establish a
violation).8
In addition to raising its burden-shifting argument, Sims claims that the Judge legally
erred by finding a violation based solely on Sims’ failure to provide documentation of ISO
compliance. We agree that Sims’ interpretation is a reasonable one, given the Judge’s factual
findings regarding the relative safety of the equipment and his statement that he would not have
found a violation had Sims produced the required document.9 Id. at 127.

7

It is not clear that the PIB at issue actually requires such documentation, and the
language of the PIB strongly suggests that any such requirement arises in the context of a
demand for documentation by an inspector. It states that compliance “may” indicate adequate
fall protection, inspectors “may” consider documentation of such compliance when deciding
whether to issue a citation, and that operators are “responsible” for providing such
documentation to inspectors. Ex. R-2. In effect, it simply states that if an operator wishes an
inspector to consider ISO compliance, then the operator (presumably as the party with access)
should provide the relevant documentary evidence.
8

The Secretary suggests that Sims’ compliance argument is an affirmative defense, such
that the burden of proving the defense falls on the party asserting it. See Taylor v. Sturgell, 553
U.S. 880, 907 (2008). This is not a circumstance where the burden-shifting framework applies,
and regardless, under such a framework the Secretary must still prove his prima facie case.
9

An alternative reading of the Judge’s opinion, as suggested by the Secretary, is that the
Judge found a violation based on the height of the fender and lack of handholds, and only relied
on the lack of documentation to reject the compliance defense. However, as discussed supra,
whether the Judge relied on the lack of documentation to find a violation or to reject a defense is
ultimately irrelevant. This decision turns on the Secretary’s failure to meet his burden of proof.

41 FMSHRC Page 397

However, the Judge’s error is more fundamental. The Judge was not bound by the PIB
to find a violation simply because of a lack of documentation of compliance with the PIB, just as
he would not have been bound to find no violation if documentation had been provided. Rather,
the Judge was required to consider the PIB for what it is: a public guidance document that
informs the agency’s judgment on the danger of falling from mobile equipment.
The PIB itself makes clear that the ISO and J185 practices are alternative, and not
exclusive, means of demonstrating that miners are appropriately protected against accidental
falls. The PIB expressly states that manufacturers may comply with these industry standards “in
addition” to the measures set forth in the PIB. Inspectors may use certification documents to
ascertain whether operators are “providing safe access, fall prevention and fall protection.” Ex.
R-2.
In this case, the Secretary failed to establish that fall protection beyond that provided by
the design of the equipment and the practices followed by Mr. Nasrallah (features and practices
that the PIB identifies as exemplary) was necessary. Moreover, the operator provided evidence
that its actions were in fact consistent with the recommendations in the PIB.
While it would constitute legal error for a Judge to consider the PIB binding, compliance
with ISO and/or MSHA guidance can and should be considered to the same degree as any other
evidence. Partial or full compliance may have a bearing on the level of safety (similar to an
expert opinion or industry standard), which is relevant in determining whether a danger of falling
existed.
If the Judge relied on the lack of compliance documentation as Sims suggests, then his
error was not that he considered compliance at all, but rather that in considering compliance, he
treated the absence of documentation as dispositive. However, we need not determine whether
the Judge improperly relied on the lack of documentation to find a violation because we find that
he improperly shifted the burden to the operator. Rejection of a counterargument should result in
a violation only if the Secretary has successfully met his burden of proof—that is, by at least
providing substantial evidence to support his position. For the following reasons, we find the
Secretary has not done so in this instance.
Under the particular facts of this case, the limited evidence put forward by the Secretary
does not establish a danger of falling by a preponderance of the evidence. The inspector
emphasized that he found a violation because the fender of the crane was narrow and not
designed for use as a walkway (despite referring to it as such), so that a stumble or misstep could
result in a fall. Tr. 42-44, 52, 71-72. However, he conceded that he did not actually examine the
crane. Tr. 80. This may explain why the inspector incorrectly estimated the fender’s width at 20
inches rather than 36-42 inches (Tr. 43-44, 98-99, 125) and was apparently unaware of either the
anti-skid coating or the ladders at the front of the crane (Tr. 63-64, 73, 78).
Since the inspector was still under the impression during the hearing that Nasrallah must
have climbed down the valve bank, he apparently also failed to confirm the method of egress
with Nasrallah during their ten-minute conversation after he approached the crane. Tr. 78, see
also Tr. 35-36. The only accurate information provided by the inspector, i.e., the only evidence

41 FMSHRC Page 398

put forward in support of the violation, is the height and length of the fender, and the absence of
handholds.
Conversely, Sims’ witnesses provide a detailed description of both the method of egress
and the crane, including a discussion of the manufacturer’s safety specifications. Nasrallah
testified that he had handholds while exiting the cab (wheel and door handle), took two to three
steps from the cab to the front ladder without handholds, and then had handholds as he turned
around and descended the ladder at the front. Tr. 114, 120, 135. He testified that the relevant
portion of the crane deck was three to three and half feet wide, six feet long, covered in anti-skid
coating, and free of ice, rain, or debris. Tr. 98-99, 113, 124-25, 128-29.
Sims’ Safety Director testified that standard methods of fall protection such as safety
harnesses are not feasible when only seven feet above the ground; therefore manufacturers
provide alternative safety measures (present in the crane at issue) such as anti-skid walking
surfaces and handholds at key locations. Tr. 93, 97-98, 103. And yet, the Secretary conducted
no cross-examination regarding the accuracy or efficacy of these alternative safety measures,
apparently relying on a simple statement from the inspector that even if anti-skid coating was
present it “wouldn’t have any bearing.” Tr. 73.
In sum, the Secretary would have the trier of fact find a danger of falling based solely on
the seven-foot height of the fender, the lack of handholds, and a general statement that there is
always some danger of falling. This is so despite the bulk of the testimony indicating that
Nasrallah took two steps across a flat, three-foot wide, skid-resistant surface which was designed
for use as a walkway and which complies with safe access standards created by the ISO and
implemented by manufacturers. Given the record, we find substantial evidence does not support
the decision that a danger of falling was more probable than not.10
The Judge’s factual findings below are consistent with this determination.11 Crediting
Nasrallah’s and Berry’s testimony regarding the crane, the Judge noted that the three-foot width
10

We do not suggest that working at a certain height without handholds would never be
sufficient to establish a violation, or that working at a height of seven feet is inherently safe.
This is particularly the case where a miner is performing work rather than merely taking two or
three steps across a slip-resistant walkway, or where there is testimony as to a specific danger
(for example wet conditions), where the facts could support a violation of the fall protection
standard. We also do not go so far as to positively find that there was no danger of falling.
Nothing in our decision may be taken as a diminution of the importance of fall protection for the
safety of miners. We only find that in this specific case, the Secretary has failed to establish by a
preponderance of the evidence that taking two or three steps across a flat, three-foot wide, skidresistant surface which was designed for use as a walkway to reach a ladder with handholds at a
height of seven feet created a danger of falling.
11

Some of the factual findings discussed herein are found in the Judge’s S&S analysis.
We recognize that the relevant standards differ, and that a finding of no reasonable likelihood in
the S&S context cannot be borrowed wholesale to find no danger of falling. We do not draw on
the Judge’s S&S analysis, only his factual findings.

41 FMSHRC Page 399

and anti-skid coating suggest that the fender was intended for use as a walkway, and that such
characteristics “can reduce mobile equipment slip and fall accidents.” 39 FMSHRC at 124, 126.
He was also persuaded that the crane was compliant with the ISO safety standards as a factual
matter, finding only that the crane failed to comply with his understanding of the documentation
requirements of the incorporating PIB. Id. at 124-25. Essentially, the Judge’s factual analysis of
the record suggests that the conditions on the crane likely were not dangerous. In contrast, all the
Secretary offers is the height of the crane, the lack of handholds, and the inspector’s “opin[ion]
that a person readying a crane for transport could stumble at any time.” Id. at 126.
The Judge ultimately found a violation, apparently due to Sims’ failure to demonstrate
compliance with the PIB. Putting aside the Judge’s legal conclusions, however, his factual
analysis clearly indicates that the Secretary failed to establish a danger of falling by a
preponderance of the evidence. Accordingly, we reverse the Judge’s finding of a violation and
vacate the citation.12 See Am. Mine Servs., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (remand
is not necessary when the record supports no other conclusion).

12

Because we have vacated the citation, we need not address Sims’ argument that
imposing a penalty in this instance would violate the Paperwork Reduction Act, 44 U.S.C.
§ 3501 et seq. However, we note that the Paperwork Reduction Act explicitly does not apply to
the collection of information “during the conduct of . . . an administrative action or investigation
involving an agency against specific individuals or entities.” 44 U.S.C. § 3518(c)(1)(B)(ii). This
would presumably include the issuance and adjudication of citations issued to specific mine
operators pursuant to the Mine Act.

41 FMSHRC Page 400

III.
Conclusion
For the foregoing reasons, we conclude that the Judge erred by finding a violation where
the Secretary had failed to meet his burden of proof. Accordingly, we reverse the Judge’s
decision and vacate Citation No. 8823573.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

41 FMSHRC Page 401

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

August 13, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. YORK 2018-31-M

v.
RICHMOND SAND & STONE, LLC
BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, 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 only issue before the Commission is a question
of regulatory interpretation: whether a fatal heart attack unrelated to work activities is an
“accident” for purposes of the Secretary of Labor’s reporting requirements at 30 C.F.R. Part 50.
The single citation at issue alleges that Richmond Sand and Stone (“Richmond”) failed to
timely notify the Mine Safety and Health Administration (“MSHA”) of a fatal heart attack. The
relevant standard requires operators to “immediately contact MSHA at once without delay and
within 15 minutes . . . once the operator knows or should know that an accident has occurred
involving: [a] death of an individual at the mine.” 30 C.F.R. § 50.10(a).
The Administrative Law Judge found that the plain language of both the Mine Act1 and
the Secretary’s regulations require any death at a mine to be reported immediately and within 15
minutes, regardless of cause. Because a death occurred on-site and the operator did not report it
until the next day, the Judge found a violation of section 50.10(a). 41 FMSHRC 12, 16-19 (Jan.
2019) (ALJ). Richmond appeals, arguing that deaths due to natural causes do not fall within the
ordinary meaning of “accident” and therefore are not immediately reportable accidents for
purposes of section 50.10(a).
I.
Factual and Procedural Background
The material facts are undisputed. An excavator operator at the Richmond Sand and
Stone Mine was found slumped over his controls at approximately 2:19 p.m. on October 2, 2017.
1

See 30 U.S.C. §§ 802(k), 813(j); n.3, infra.

41 FMSHRC Page 402

Nearby miners called 911 and attempted resuscitation. An ambulance squad arrived within five
minutes and attempted further resuscitation. All attempts were unsuccessful. Richmond’s Health
and Safety Director, Peter Robbins, was informed of the occurrence at 2:34 p.m. The miner was
transported to the hospital, where he was pronounced deceased at 3:35 p.m. Robbins called
MSHA to report the death at 11:21 a.m. the following day. The parties stipulate that the miner
died of a heart attack and not as the result of any activity in the course of his employment.
The parties filed cross-motions for Summary Decision, and the Judge granted the
Secretary’s motion. Relying on the definitions of “accident” in the Mine Act and Part 50, the
Judge found that section 50.10(a) unambiguously requires the immediate reporting of any death
at a mine. 41 FMSHRC at 16. Accordingly, the Judge found that Richmond failed to timely
notify MSHA of an on-site death in violation of the standard, and assessed the minimum $5,000
penalty under section 110(a)(2) of the Mine Act. Id. at 17-19. The Judge noted that the
Commission ALJ cases cited by Richmond (discussed infra) were distinguishable because they
involved non-fatal heart attacks cited as reportable injuries rather than deaths. Id. at 16. The
Judge also rejected Richmond’s reliance on ordinary meaning in light of the plain language of
the Mine Act and Part 50. Id. at 17 n.5.
On appeal, Richmond argues that section 50.10(a) does not require the reporting of fatal
heart attacks (or of any deaths due to natural causes) because such deaths do not fall within the
ordinary meaning of “accident.” According to Richmond, “accident” is not defined in Part 50;
therefore, the ordinary meaning should apply. Richmond also suggests that defining a natural
cause death as an accident is contrary to the purpose of the Act and that the Secretary’s
interpretation of the regulation causes confusion for operators.
The Secretary counters that the plain language of Part 50 defines “accident” to include
any death at a mine regardless of cause, that ordinary meanings and dictionary definitions are not
relevant where the term is expressly defined by the regulation, and that the cited ALJ cases are
inapposite as they do not involve the death of a miner. The Secretary adds that if the language
were ambiguous, his interpretation would be reasonable and consistent with the purpose of the
Act, which delegates to the Secretary the authority to determine the cause of accidents.
II.
Disposition
Richmond was cited for failing to notify MSHA within 15 minutes once it knew or
should have known “that an accident has occurred involving: [a] death of an individual at the
mine.” 30 C.F.R. § 50.10(a). It is undisputed that a death occurred on-site, and that Richmond
did not notify MSHA until almost a day after becoming aware of the death. The case turns solely
on whether the death was an “accident” for purposes of section 50.10(a). As discussed below, we
find that the plain language of the Secretary’s Part 50 reporting regulations defines all on-site
deaths as immediately reportable accidents. Accordingly, Richmond violated section 50.10(a) by
failing to timely notify MSHA of a fatal heart attack at the mine.
Where the language of 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. See Dynamic Energy, Inc., 32
FMSHRC 1168, 1171 (Sept. 2010) (citations omitted). In the event that the language is

41 FMSHRC Page 403

ambiguous, deference to the Secretary’s interpretation may be appropriate if the interpretation is
reasonable, authoritative, within the Secretary’s expertise, and reflects fair and considered
judgment. However, questions of deference do not arise unless the regulation is determined to be
genuinely ambiguous after all the traditional tools of construction are exhausted. Kisor v. Wilkie,
139 S. Ct. 2400, 2415-19 (2019). Here, the relevant regulatory language is clear and
unambiguous.
The Secretary’s Part 50 reporting regulations address three types of events—accidents,
occupational injuries, and occupational illnesses. 30 C.F.R. § 50.1. While operators must report
all three types of events, “accidents” as defined in the regulation are subject to the more stringent
requirements of immediate reporting, investigation, and scene preservation. 30 C.F.R. §§ 50.1050.12. Contrary to Richmond’s argument, 30 C.F.R. § 50.2 clearly defines the three types of
events, including “accidents.” Those definitions contain a clear and specific definition of an
“accident:”
Definitions.
...
(h) Accident means:
(1) A death of an individual at a mine;
(2) An injury to an individual at a mine which has a reasonable potential to
cause death;
(3) An entrapment of an individual for more than 30 minutes or which has a
reasonable potential to cause death;
....
30 C.F.R. § 50.2 (emphasis added).
In turn, Section 50.10 requires immediate notification of an “accident.” Indeed, it
expressly requires notification of a death of an individual at a mine:
The operator shall immediately contact MSHA at once without delay and
within 15 minutes . . . once the operator knows or should know that an
accident has occurred involving:
(a) A death of an individual at the mine;
(b) An injury of an individual at the mine which has a reasonable potential
to cause death;
(c) An entrapment of an individual at the mine which has a reasonable
potential to cause death; or
(d) Any other accident.
30 C.F.R. § 50.10 (emphasis added).

41 FMSHRC Page 404

It is difficult to imagine a stronger case for plain meaning than where the regulation itself
provides and then uses a definition.2 Had the drafters wished, they could have excluded natural
deaths or otherwise indicated an intent to limit the scope of the term “accident” to deaths
resulting from mining activities. They did not qualify or limit the unmistakably clear word
“death.” Instead, the only qualifier provided by the drafters is that the death must occur “at the
mine.” All on-site deaths are thus reportable accidents pursuant to the plain language in Part 50.3
Richmond’s claim that the definition in section 50.2(h) does not actually define
“accident” clearly fails. “Accident” is defined explicitly. 30 C.F.R. § 50.2(h). Even were that
definition inconsistent with ordinary usage, the express definition in the regulation takes
precedence. Island Creek Coal Co., 20 FMSHRC 14, 19 (Jan. 1998) (“In the absence of an
express definition . . . the Commission has relied on the ordinary meaning of the word to be
construed.”) (emphasis added); cf. 2A Norman J. Singer & J.D. Shambie Singer, Sutherland
Statutory Construction §§ 47:7, 47:28 (7th ed. 2018) (Statutory definitions are usually binding
“even if the definition varies from a term’s ordinary meaning.”)
Moreover, requiring the reporting of all deaths serves an important purpose that is
consistent with the Secretary’s obligations under both Part 50 and the Mine Act. The purpose of
Part 50 is to “implement MSHA’s authority to investigate, and to obtain and utilize information
pertaining to, accidents, injuries, and illnesses occurring or originating in mines.” 30 C.F.R. §
50.1; see also 30 U.S.C. § 813(a) (grant of authority). This serves the “urgent need to provide
more effective means and measures for improving the working conditions and practices in . . .
mines in order to prevent death and serious physical harm.” 30 U.S.C. § 801(c). In other words,
reporting requirements allow the Secretary to gather and analyze data that will improve miner
safety. See Mine Accident, Injury and Illness Reports, 44 Fed. Reg. 52,827, 52,827 (Sept. 11,
1979) (Part 50 “was intended to achieve the statutory objective of acquisition and analysis of
accident, injury and illness data for the purpose of reducing mine safety and health hazards”).
In order to determine whether steps can be taken to prevent future occurrences, the
Secretary must be able to gather complete and accurate information regarding the causes of
deaths at mining sites. See 30 U.S.C. § 813(a) (directing the Secretary to obtain information
related to “the causes of accidents, and the causes of diseases and physical impairments”). The
cause of a death is not always immediately obvious; it may not initially be clear whether the
event resulted from a factor within the operator’s control.

2

The interpretive significance of definition sections has been recognized in the statutory
context. Cf. 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction §
47:7 (7th ed. 2018) (“When a legislature does define statutory language, its definition usually is
binding . . . . A statute itself furnishes the best evidence of its own meaning.”). Logically, a
regulation itself would also provide the most direct evidence of its own intended meaning.
3

The Judge also relied on text of the Mine Act that defines accident to include “injury to,
or death of, any person.” 30 U.S.C. § 802(k).

41 FMSHRC Page 405

Requiring immediate notification of all accidents as defined in section 50.2, including all
deaths, preserves evidence, thereby ensuring that the Secretary will have an opportunity to
determine the cause.4 This promotes the accuracy and efficacy of the reporting program.5 The
Secretary can easily exclude data points ultimately found to be irrelevant. The Secretary cannot
include relevant data points that are not reported. The plain text of the regulation is consistent
with the purpose of Part 50.
Richmond cites two inapposite ALJ decisions for the proposition that heart attacks are
not reportable accidents. Hanson Aggregates Midwest, 35 FMSHRC 2412, 2416 (Aug. 2013)
(ALJ); Vulcan Constr. Materials LP, 35 FMSHRC 2868, 2874 (Aug. 2013) (ALJ). Both
decisions found that non-fatal heart attacks are not accidents pursuant to section 50.10(b),
because they are not injuries as defined in section 50.2(h)(2). The issue here is whether a fatal
heart attack must be reported under section 50.10(a) because it is a death at a mine as clearly
defined in section 50.2(h)(1).
Notably, both decisions cited by Richmond recognize this distinction and explicitly state
that a fatal heart attack would be an immediately reportable accident. Hanson, 35 FMSHRC at
2416 n.10; Vulcan, 35 FMSHRC at 2885-86. Other Commission Judges have implicitly held that
on-site fatalities due to natural causes are immediately reportable accidents under section
50.10(a). E.S. Stone & Structure, 33 FMSHRC 515, 520 (Jan. 2011) (ALJ); Premier Chemicals
LLC, 29 FMSHRC 686, 691-92 (Aug. 2007) (ALJ).6
As a final matter, to the extent Richmond’s claim of “confusion to mine operators” may
be interpreted as a notice argument (Reply Br. at 2), section 50.10(a) provides adequate notice of
4

Requiring all deaths to be reported will inevitably result in the reporting of some deaths
that are not related to mining activities. However, this should not impede the accuracy of the
data, as the irrelevant reports can simply be excluded from the analysis. See MSHA, Nonchargeable Mining Deaths, https://arlweb.msha.gov/Fatals/NonChargeables/NonChargeable
Fatalshome.asp (last visited Aug. 7, 2019).
5

The Commission and the D.C. Circuit have recognized a similar interest in the context
of reportable injuries under 30 C.F.R. § 50.20. The Commission held that all on-site injuries are
reportable regardless of causal nexus, noting that the Secretary has an interest in compiling all
on-site injury data in order to determine which injuries may be prevented. Freeman United Coal
Mining Co., 6 FMSHRC 1577, 1579, 1579 n.3 (July 1984). The D.C. Circuit similarly found it
“not unreasonable” for the Secretary to require the reporting of all on-site non-trivial injuries “in
order to gather information necessary to carry out his rulemaking function under the Act.”
Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 461 (D.C. Cir. 1994).
6

Both decisions turn on whether the operator’s notification was timely. E.S.
Stone, 33 FMSHRC at 520 (finding a violation where the operator failed to timely report a fatal
heart attack); Premier Chemicals, 29 FMSHRC at 691-92 (finding no violation where the
operator took reasonable time to investigate before reporting a death due to natural causes). This
requires an implicit assumption that the fatalities were subject to the immediate notification
requirement.

41 FMSHRC Page 406

its objectives and requirements. Where the meaning of a standard is clear from the regulation’s
plain language, it follows that the standard provides adequate notice to operators. See, e.g.,
Dynamic Energy, Inc., 32 FMSHRC at 1172; Jim Walter Resources, Inc., 28 FMSHRC 983, 988
n.6 (Dec. 2006). Here, Part 50 explicitly defines “a death of an individual at a mine” as an
accident, and all accidents as immediately reportable. 30 C.F.R. §§ 50.2(h)(1), 50.10. Given the
plain language of Part 50, the obvious purpose of the reporting requirement, and Commission
case law, a reasonably prudent person in the mining industry clearly had fair notice that all onsite deaths are immediately reportable accidents for purposes of Part 50.
III.
Conclusion
For the foregoing reasons, we find that the plain language of MSHA’s reporting
regulations at 30 C.F.R. Part 50 unambiguously defines any on-site death as an “accident”
subject to the immediate reporting requirement in section 50.10(a). Accordingly, Richmond’s
failure to timely notify MSHA of a fatal heart attack at the mine site violated the standard. The
Judge’s decision is affirmed.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

41 FMSHRC Page 407

ADMINISTRATIVE LAW JUDGE DECISIONS

41 FMSHRC Page 408

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

July 5, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2017-0073
A.C. No. 11-03156-423356

v.

Docket No. LAKE 2017-0074
A.C. No. 11-03156-423356

PEABODY MIDWEST MINING, LLC,
Respondent.
Mine: Wildcat Hills Mine - Underground
DECISION AND ORDER
Appearances:

R. Jason Patterson, Esq., U.S. Department of Labor, Office of the
Solicitor, Chicago, Illinois, for Petitioner;
Arthur M. Wolfson, Esq., Fisher & Phillips LLP, Pittsburgh,
Pennsylvania, for Respondent.

Before:

Judge L. Zane Gill

These cases originally comprised four section 104(a) citations issued at Peabody Midwest
Mining, LLC’s Wildcat Hills Mine-Underground. Citation No. 9038387 was resolved by
settlement prior to hearing.1 The remaining three citations, Nos. 9039355, 9039356, and
9039357, were tried at a hearing in Marion, Illinois.
Citation Nos. 9039355, 9039356, and 9039357 were issued on September 8, 2016, for an
area then known as the “old 2B panel.”2 (Tr.39:8–14; 43:19–21) Each alleges a violation of an
escapeway-related requirement: Citation No. 9039355 alleges that the area lacked post-accident
communication and tracking; Citation No. 9039356 alleges that a lifeline was not provided; and
Citation No. 9039357 alleges that a refuge alternative lacked communication. (Ex. S–2) It is
Peabody’s position that these measures were not required because, at the relevant times,
escapeways were not required in the old 2B panel. The Secretary asserts that escapeways were
required. Therefore, the three citations involve a common foundational issue: whether
escapeways were required in the old 2B panel in September 2016.
1

A Motion to Approve Settlement was filed for that citation on April 9, 2018.
(Tr.10:17–11:6)
2

The “old 2B panel” is the area where mining unit No. 2 was previously located. Unit 2
was moved to another location in the mine. (Tr.43:17–44:1)

41 FMSHRC Page 409

The dispute hinges on the determination of what the terms “removed” and “area” mean in
the context of 30 C.F.R. § 75.380. Section 75.380(b)(1) requires that escapeways be “provided
from each working section, and each area where mechanized mining equipment is being installed
or removed, continuous to the surface escape drift opening [. . .] .” 30 C.F.R. § 75.380(b)(1)
(emphasis added). Section 75.380(b)(2) specifies that “[d]uring equipment removal,
[escapeways] shall begin at the location of the last loading point.” 30 C.F.R. § 75.380(b)(2).
Production at the old 2B panel stopped on August 26, 2016. (Tr.172:8–173:14; Ex. R–7
at 2) An air change and other items related to moving the production unit, including moving
needed mechanized mining equipment, commenced on August 27, 2016. (Tr.124:15–125:1)
Three pieces of equipment that were planned to eventually be transported from the mine were
moved outby the last loading point and stored in nearby crosscuts. (Tr.99:3–7; 147:6–10; 148:4–
6) Production was started at a new production unit on September 1–2, 2016. (Tr.174:13–175:4;
Ex. R–7 at 8–9) The Secretary does not claim that active mining was being done in the old 2B
panel when Inspector Brittan Belford was conducting his E01 inspection on September 6–8,
2016. (Tr.43:22–44:4)
The Secretary argues that escapeways were still required because the mechanized mining
equipment had not been “removed” from the old 2b panel, which he argues is the relevant area in
the regulation. Peabody argues that their mechanized mining equipment was “removed” because
it had been moved outby the last loading point, which it sees as the relevant area in the
regulation. If it was “removed,” as they argue, there was no requirement to maintain
escapeways, and the three citations must be vacated since they all derive from the assumption
that escapeways were required.
I. DECISION SUMMARY
In summary, I find that the essential removal process, which changed the requirements
for maintaining escapeways, had been completed by the time Inspector Belford arrived. The
Secretary’s interpretation of section 75.380(b), that mechanized mining equipment needed to be
moved off the old 2b panel before escapeways could be discontinued, is not supported by the
regulatory language, history, or logic. Thus, the fact that surplus equipment was stored outby the
last loading point after being removed from an active face did not require Peabody to maintain
escapeways. Consistent with Respondent’s position, once a formerly active production area is
shut down and the equipment is moved outby the last loading point, the need to maintain
escapeways is obviated. I conclude Citation Nos. 9039355, 9039356, and 9039357 must be
vacated.
II. STIPULATIONS
1. Peabody Midwest Mining, LLC is an “operator” as defined in 3(d) of the Federal
Mine Safety and Health Act of 1977, as amended (Mine Act), 30 U.S.C. 803(d) at the time the
citations at issue in this proceeding were issued.
2. Peabody Midwest Mining, LLC operates Wildcat Hills Mine.
3. Wildcat Hills Mine is subject to the jurisdiction of the Federal Mine Safety and Health
Act of 1977.

41 FMSHRC Page 410

4. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designated Administrative Law Judges pursuant to sections 105 and
113 of the Mine Act.
5. The individual whose signature appears in Block 22 of the Citations at issue in this
proceeding was acting in his official capacity and as an authorized representative of the Secretary
of Labor when the citations were issued.
6. A duly authorized representative of the Secretary served the citations and terminations
of the citations upon the agent of the Respondent at the date and place stated therein as required
by the Mine Act, and the citations and terminations may be admitted into evidence to establish
their issuance.
7. The total proposed penalty for the citations at issue will not affect Respondent’s
ability to continue in business.
8. The citations contained in Exhibit A attached to the Petition for Assessment of Penalty
are an authentic copy of the citations at issue in this proceeding with all appropriate
modifications and terminations, if any.
9. The exhibits to be offered by the Secretary and Peabody are stipulated to be authentic,
but no stipulation is made as to the relevance of the truth of the matters asserted therein.
III. FACT SUMMARY3
A.

The Unit 2 Move and Air Change (July–August 2016)

Wildcat Hills Mine has three active production units.4 (Tr.99:8–10; 112:1–4; 200:20–23)
In late August 2016, coal production on the “2B panel” reached the geographic limit of the
mining claim and had to stop, necessitating a production unit move several miles away in the
same mine. (Tr.112:5–113:1; 170:14–171:3)
When a production unit moves, either because mining has reached the permitted
geographic limit or a section has run out of coal or it has become unprofitable, the shut-down
process generally includes an “air change.” (Tr.168:3–6; 270:16–271:3) An air change is done
to maximize fresh air flow to the new active production area. (Tr.110:23–111:12; 271:5–9)
3

The findings of fact are based on the record as a whole and my careful observation of
the witnesses as they testified. In resolving any conflicts in testimony, I have taken into
consideration the interests of the witnesses, all consistencies or inconsistencies in their
testimony, and their demeanor. Any failure to analyze each witness’ testimony is not a failure to
have fully considered it. The fact that some evidence is not discussed does not mean 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).
4

Active workings are “[a]ny place in a coal mine where miners are normally required to
work or travel.” 30 C.F.R. § 75.2.

41 FMSHRC Page 411

More airflow is needed in active production areas to dilute gases and dust, etc., (Tr.111:13–17),
while mined-out portions of a mine can be ventilated with return air.5 (Tr.271:5–7)
After an air change, the escapeways that were required when the unit was in production
are no longer required. (Tr.168:22–169:3) Any time mining equipment is moved for any reason
from one place to another, it is moved in entries ventilated by belt air, not in a primary
escapeway.6 (Tr.268:18–269:12) MSHA has never indicated that it is out of compliance to do
so (Tr.269:13–23), and this is the standard practice in District 8. (Tr.269:24–270:4) A plan to
transport equipment from place-to-place in an entry ventilated by belt air has never been
required. (Tr.270:5–9)
Prior to the air change, the intake air course and the 2B travelway were the primary and
secondary escapeways, respectively. (Tr.94:7–20) They were required to be separate and could
not have air in common. (Tr.94:21–95:3) The maps submitted with the air change plan showed
that the entries that had been separate escapeways when unit 2 was operational would be made
common on the 7 main north. (Tr.121:15–24; Ex. R–2)
1.

Ventilation Plan

Peabody had to redirect ventilation air flow once production stopped on the 2B panel to
send more and fresher air to other parts of the mine (Tr.111:5–17) and leave the current (but soon
5

Return air is defined in 30 C.F.R. § 75.301 as:
Air that has ventilated the last working place on any split of any
working section or any worked-out area whether pillared or
nonpillared. If air mixes with air that has ventilated the last
working place on any split of any working section or any workedout area, whether pillared or nonpillared, it is considered return air.
For the purposes of § 75.507–1, air that has been used to ventilate
any working place in a coal producing section or pillared area, or
air that has been used to ventilate any working face if such air is
directed away from the immediate return is return air.
Notwithstanding the definition of intake air, for the purpose of
ventilation of structures, areas or installations that are required by
this subpart D to be ventilated to return air courses, and for
ventilation of seals, other air courses may be designated as return
air courses by the operator only when the air in these air courses
will not be used to ventilate working places or other locations,
structures, installations or areas required to be ventilated with
intake air.

6

A primary escapeway has to be ventilated with intake (fresh) air, and it has to go all the
way to each section. 30 C.F.R. § 75.380(f). It cannot be used for any other purpose. (Tr.273:5–
14) A secondary (alternate) escapeway is less restricted; it can be common with belt or travel
road air. (Tr.274:5–15; 30 C.F.R. § 75.380(h))

41 FMSHRC Page 412

to be “old”) 2B panel in a worked-out status.7 (Tr.275:10–276:7) In this case, the air change
was substantial and complex enough to require a plan approved by MSHA. (Tr.109:17–110:3;
113:2–13) Matthew Kimbel8 and his team modeled the ventilation capacity of the mine and
determined how the ventilation controls needed to be arranged. (Tr.110:10–22; 114:10–17) The
air change plan was based on the decision to move the production unit (i.e., unit 2) to the
“Second East Mains.” (Tr.115:3–5; Ex. R–1 at 1) The plan proposal was submitted to MSHA
on July 12, 2016. (Tr.116:5–7; Ex. R–1 at 1) MSHA did not approve this submittal.
(Tr.117:18–20)
After receiving feedback from the MSHA district office, Peabody realized it had
unneeded equipment (a spare belt drive) and decided to change the location of unit 2’s future
faces from the “Second East Mains” to the “Second East Main Parallel” (new unit 2).
(Tr.117:22–118:2; Ex. R–1 at 3–4) On July 29, 2016, Peabody submitted a superseding air
change plan to MSHA along with three new revised maps, which identified the then-current
ventilation controls and what ventilation control changes would be made. (Tr.115:6–14; 117:22–
25; 118:3–119:11) The amended air change was planned for a single work shift, during which
the escapeways would be maintained. (Tr.120:19–121:10; 124:15–23) MSHA approved this
plan on August 17, 2016. (Tr.119:24–120:1; 121:9–10; Ex. R–1 at 5)
2.

Equipment Plan

Stephen Reynolds9 and Kimbel participated in making the decision as to where the
equipment on the 2B panel would be moved. (Tr.129:1–3; 183:17–21) At Wildcat Hills,
mechanized mining equipment is prepared for transport before an air change occurs.
(Tr.271:10–272:7) First, all equipment is moved outby the loading point before the air change.
(Tr.184:8–15) Next, subsequent decisions are made about what to do with each piece of
equipment, with priority given to equipment needed for production at the new unit. (Tr.184:16–
185:7) However, all of the mining equipment is not always moved to the new area when the
production unit moves. (Tr.168:12–21) At Wildcat Hills, equipment is on a contractual
tonnage-based maintenance schedule (Tr.278:4–10); thus, when a piece of equipment reaches its
tonnage limit, it has to be transported out of the mine to be refurbished. (Tr.277:25–278:17)
Continuous miners are taken out of the mine for these repairs once every two or three section
changes, with rebuilt continuous miners taking their place at the new unit. (Tr.278:10–13)
According to Kimbel, Peabody had never been required to specify in a ventilation or air change
7

A worked-out area is “[a]n area where mining has been completed, whether pillared or
nonpillared, excluding developing entries, return air courses, and intake air courses.” 30 C.F.R.
§ 75.301.
8

Kimbel is the Manager of Engineering at the Wildcat Hills Mine in the Arclar Complex.
(Tr.107:15–108:6) He is a professional engineer with a Master of Science degree and has 11
years of experience in the mining industry. (Tr.108:25–109:11)
9

Reynolds is a project manager for Peabody. (Tr.165:13–18) In August of 2016, he was
the underground superintendent and general mine manager. (Tr.165:25–166:7) He has 43 years
of mining experience at various underground mines in the region. (Tr.166:15–167:15) Any unit
move would be under Reynolds’ supervision. (Tr.167:16–168:2)

41 FMSHRC Page 413

proposal submitted to MSHA where excess mechanized mining equipment would be stored
pending transport from the mine. (Tr.130:20–131:4; 132:16–24)
Chad Barras10 gave the order to have the equipment moved outby the loading point prior
to making the air change so that the escapeway air flow would be preserved until the equipment
was moved. (Tr.272:9–16; 303:24–304:13) Peabody believed this was consistent with industry
practice and in line with section 75.380(b). (Tr.295:14–296:4) Peabody further believed that
once all of the mechanized mining equipment that had been used to mine at the face of the 2B
panel was moved outby the former loading point, “removal” would be complete, the area would
no longer be active, and escapeways would no longer be required. (Tr.169:6–21) This has long
been the practice and understanding of “removal” at Wildcat Hills. (Tr.169:6–170:3; 198:5–21;
264:19–265:2; 296:2–4) There is no requirement that all of the equipment be moved within a
given time. (Tr.294:4–295:3)
3.

Execution of the Unit 2 Move

Production at the 2B panel (hereafter “old 2B panel”) stopped on August 26, 2016.
(Tr.171:19–173:14; Ex. R–7) Consistent with the plan, all mechanized mining equipment was
first moved outby the former loading point. (Tr.173:4–11; 189:6–12) Reynolds testified that
most11 of the essential equipment was moved to the new mining location before the air change.
(Tr.187:13–188:3) In preparation for the unit move, the area near the former working face was
roof bolted, loose accumulations of coal were back scooped, and the area was rock dusted.
(Tr.173:19–174:2; Ex. R–7 at 3–4)
Under Reynolds’ supervision, Peabody carried out the unit move and air change during
the “owl” and day shifts on August 27, 2016. (Tr.124:24–125:4; 131:11–14; 171:4–18; 173:25–
174:12; Ex. R–7 at 4–5) One effect of the air change was to change the designation of air
courses in the old 2B panel so that they were no longer considered “escapeways,” as required
when the unit was in active production. (Tr.162:2–7; 202:19–22) This was accomplished by
removing some stops and constructing new stoppings to direct the air into its new course.
(Tr.124:15–21) Production at new unit 2 commenced on September 1, 2016. (Tr.174:13–175:4;
Ex. R–7 at 8–9)
Although most of the mechanized mining equipment was moved to new unit 2 to resume
production, three pieces of equipment — Continuous Miner #234 (CM234), Continuous Miner
#235 (CM235), and Feeder Breaker #605 (F605) — were not. New unit 2 did not need CM234
and CM235 because newly rebuilt miners — Continuous Miners Nos. 237 and 238 — had
already been sent to new unit 2. (Tr.175:19–177:6; 201:4–11; Ex. R–7 at 8–9) It is not clear
from the record why F605 was not needed at new unit 2.

10

Barras is (and was) the safety and compliance director for Peabody Energy.
(Tr.258:24–259:9; 260:22–25) Barras was a ventilation engineer at MSHA prior to working for
Peabody. (Tr.261:3–7) Mark Eslinger was his supervisor at MSHA. (Tr.261:10–12)
11

Reynolds could not recall, however, if all of the essential equipment was moved before
the air change. (Tr.187:13–189:4)

41 FMSHRC Page 414

Although CM234, CM235, and F605 could have been moved completely off the 2B
panel before the air change (Tr.189:17–21), they were left in the crosscuts just outby the former
loading point.12 (Tr.44:5–9; 50:8–19; 52:19–21; 302:23–303:15) The decision regarding what to
do with these three pieces of excess mechanized mining equipment was instead deferred.
(Tr.129:21–25; 183:17–187:10) Peabody’s management was certain, however, that the
equipment would not be stored indefinitely in the crosscuts outby the former loading point on the
old 2B panel. (Tr.129:16–20; 192:10–193:15)
B.

Inspector Belford’s Inspection (September 6–8, 2016)
1.

September 6, 2016

Enter now MSHA Inspector Brittan Belford13 of the Marion, Illinois field office.
(Tr.28:15–24) Belford visited the mine site on three consecutive days to conduct an E01
Inspection. (Tr.38:10–15; 39:8–14) He was familiar with the mine, having previously
conducted three or four E01 inspections at Wildcat Hills. (Tr.37:25–38:1)
On the first day, September 6, 2016, Belford arrived at the Wildcat Hills Mine at 7:30
a.m. and met with Douglas Combs14 in the mine’s safety office. (Tr.42:20–43:8) The two
traveled underground together to the old 2B panel via the 2A Sub Main.15 (Tr.43:14–21; 137:8–
138:3) Once there, Belford and Combs traveled inby the old 2B travelway on a stinger ride.16
(Tr.91:4–18; 95:10–12; 96:1–5; 138:10–17) Belford observed FB605, CM234, and CM235
parked outby the former loading point. (Tr.52:12–21) Belford also observed a lifeline hooked
up in the old 2B travelway. (Tr.58:17–21; 95:13–19) Belford’s notes indicate that no violations
were observed up to this point. (Tr.92:14–93:1; Ex. S–2) Once Belford and Combs traveled the
12

The last former loading point was located at crosscut 130. (Ex. J–3) While there is no
dispute that the three pieces of mechanized mining equipment were outby the former loading
point (Tr.90:18–23; 99:3–7), there is a slight discrepancy in the record about precisely where
they were parked. During the hearing, Inspector Belford illustrated on Joint Exhibit 3 that F605
was located in crosscut 129 and the continuous miners were located in crosscuts 128 and 127.
(Tr.50:8–19; Ex. J–3) Douglas Combs’ map shows F605 located in crosscut 127 and the
continuous miners located in crosscuts 125 and 126. (Tr.147:6–10; 148:4–6; Ex. R–6) This
discrepancy does not alter my analysis. Thus, I will refer to Inspector Belford’s locations.
13

Belford received a bachelor’s degree in mining engineering in 2010. (Tr.29:2–16)
After graduation, Belford spent one year in the private sector as a full-time production
management trainee. (Tr.30:1–4) In 2011, Belford began working at MSHA as a coal mine
inspector. (Tr.31:5–10)
14

Combs was the safety supervisor at Wildcat Hills. (Tr.135:24–136:3) Combs’
responsibilities included working on policies and procedures and escorting federal and state
inspectors. (Tr.136:6–9)
15

The old 2B panel developed at a 90 degree angle off of the 2A Sub Main. (Tr.138:4–9)

16

A stinger ride is a battery powered vehicle. (Tr.138:13–17)

41 FMSHRC Page 415

length of the travelway and reached the end of the panel, they took a left turn and entered into the
left return. (Tr.91:4–23; 138:18–21)
While in the old 2B left return, their vehicle got stuck. (Tr.139:1–3) Belford and Combs
exited the vehicle and used a man door to enter back into the old travelway at approximately the
5,700 foot mark.17 (Tr.138:24–139:17; 140:2–13; See Ex. J–3) Combs then attempted to use his
mine site cell phone to call for a ride. (Tr.53:3–5; 139:21–22; 140:14–19; 149:17) There was no
cell service. (Tr.53:5–7; 139:22–23; 140:20–22; 149:10–17) Combs and Belford discussed the
lack of cell signal and communication coverage, which was a surprise to both. (Tr.140:20–
142:1) At this time, Belford testified he told Combs that equipment — i.e., FB605, CM234, and
CM235 — was still being removed from the area and, therefore, the travelway was a secondary
escapeway, which required tracking or communication. (Tr.53:8–13) Combs testified, however,
that Belford asked if tracking or communications were required in the area. (Tr.141:13–14)
Combs was unsure but thought the fact the excess equipment was parked outby the former
loading point was a relevant factor. (Tr.141:15–17) At this point, according to Combs, neither
man was certain. (Tr.141:18–21)
The two discussed and referenced the federal regulations for an answer but, according to
Combs, could not reach a conclusion. (Tr.53:17–20; 141:22–142:1; 143:5–10) Combs and
Belford traveled outby where there was cell service, called to the surface, and requested a ride
for Belford out of the mine. (Tr.142:4–15)
Once back at the surface, Belford went to the tracking office to speak with Nathan
Sumner, the supervisor of tracking and communications.18 (Tr.53:21–54:2; 93:25–94:5) Sumner
explained that because the power center for unit 2 had been moved from the old 2B panel on
August 26, 2016, there was no power for a tracking system in the area. (Tr.54:9–16; see also
Tr.181:10–18) Sumner told Belford that it would not be a problem to put the power center back
in and re-establish communication and tracking. (Tr.55:3–8) Belford testified that he informed
Sumner that the old 2B travelway was an escapeway that required communication and tracking;
nevertheless, Belford did not issue a citation that day. (Tr.55:13–21) Belford claimed that he
was affording the company the opportunity to come into compliance before enforcement action
was needed. (Tr.55:22–24)
Later that day while on his way home from work, Barras learned that Inspector Belford
had asked questions about communication and tracking on the old 2B travelway. (Tr.285:2–12)
In Barras’ mind, the equipment in the 2B panel was “removed” once it was moved outby the
former loading point so there was no need for escapeways and thus no need for communication
and tracking. (Tr.285:14–16) Barras called Marion field office supervisor Mike Rene and
expressed his opinion. (Tr.285:17–22) Rene said he would talk to Belford the next morning.

17

The old 2B left return and old 2B travelway are adjacent to each other and connected
by a man door. (Tr.139:12–17)
18

There is a discrepancy in the record whether Combs was also present at the tracking
office for this discussion. (Tr.54:3–8; contra Tr.142:16–143:4)

41 FMSHRC Page 416

(Tr.285:22–24) Barras believed that Rene would resolve the issue with Belford. (Tr.285:25–
286:2)
2.

September 7, 2016

Belford returned to the mine the next morning, September 7, 2016. (Tr.55:25–56:8) He
again went to the safety office and spoke to Combs. (Tr.56:6–11; 144:12–18) Prior to going
underground to resume the inspection, Belford asked Combs about the status of tracking and
communication in the old 2B travelway. (Tr.56:17–22) Combs responded that they had not
installed tracking or communication, did not plan to, and had additionally pulled the lifeline19
that was in the travelway the previous day. (Tr.56:22–25) Belford recalled telling Combs that
the old 2B travelway was still an escapeway, but now it was an escapeway without a lifeline.20
(Tr.57:1–4)
Belford reviewed the mine map and examination records before returning underground to
the old 2B panel. (Tr.57:5–12) He was accompanied by Eric Blackford, a member of Wildcat
Hills’ safety team. (Tr.57:13–20) At the old 2B panel, Belford verified the lifeline had been
removed. (Tr.57:21–25) Additionally, Belford noted where the last known loading point was,
where the excess equipment was, and that the phone at a nearby refuge alternative did not work.
(Tr.58:1–9) Belford and Blackford took the right return heading outby and spoke with mine
examiner J. Jackson, the miner responsible for conducting pre-shift examinations. (Tr.58:22–
59:8; 72:19–73:1) Belford asked Jackson if he knew there was no tracking or communication
along the old 2B panel. (Tr.59:11–12) Jackson replied that he was aware and that manual
tracking was being used in place of the wireless tracking system.21 (Tr.59:12–14) The phone
system and wireless tracking were not operational because the power source had been taken out
during the unit move.22 (Tr.308:9–15; 309:9–18) At this time, records in the area indicated the
old 2B panel was still being pre-shifted three times a day, as if it was still in active production.
(Tr.72:1–13)

19

Barras believed that the lifelines were pulled out of the old 2B panel on September 7 to
avoid the appearance they were connected to functioning refuge alternatives. (Tr.307:21–308:8)
20

Combs, on the other hand, recalled Belford saying that Wildcat Hills would either get
two or three serious citations or none at all. (Tr.144:21–145:1)
21

Although manual tracking can vary from mine to mine, here, miners were instructed to
call out and somebody would write in a record book the names of the miners going into the old
2B panel. (Tr.59:12–14; 101:24–102:2)
22

Barras explained that Wildcat Hills’ Emergency Response Plan requires two forms of
tracking in escapeways. (Tr.308:16–310:3) His belief was that the old 2B travelway was not an
escapeway by that time.

41 FMSHRC Page 417

After speaking with Jackson in the mine, Belford returned to the surface and met with
Reynolds23 and Barras in the staging area.24 (Tr.60:6–19; 181:21–182:5) Belford asked
Reynolds why the lifeline was taken down and communications were not re-established as he
had instructed the previous day. (Tr.61:14–17) Reynolds responded that Barras had allowed
him to remove the lifeline. (Tr.61:17–19) Reynolds had the lifeline removed because it is not
required if there is no active escapeway. (Tr.178:8–179:2) Reynolds explained that it was
potentially dangerous to have a lifeline in an airway other than an escapeway since it could give
a false impression to miners and lead them in the wrong direction. (Tr.179:3–14) After speaking
with Belford about the lifeline issue, Reynolds stood by his view that no escapeway was required
because the excess equipment was outby the last former loading point. (Tr.180:16–181:6)
During his conversation with Barras, Belford reiterated that the old 2B travelway was still
an escapeway that required a lifeline, communication, and tracking.25 (Tr.62:24–63:3) Barras
adamantly disagreed, stating that because equipment was moved outby the former loading point,
they were no longer required to maintain an escapeway and the other requirements associated
with it. (Tr.62:17–63:6; 295:14–296:4)
After leaving the mine that day, Belford returned to the MSHA district office and spoke
to supervisor Bob Bretzman.26 (Tr.63:10–14) Around that time, Rene called Barras and told him
that he was passing the issue on to Bretzman because Rene was scheduled to go on vacation.
(Tr.286:9–17; 287:16–288:11) During this call, Rene did not indicate whether he thought
23

Combs also recalled participating in a conversation about tracking, communications,
and the lifelines in the old 2B panel with Reynolds, Max Hainey (Safety Manager), and Inspector
Belford. (Tr.148:14–149:7) At this point, Combs believed that nobody, including Inspector
Belford, had a clear notion whether the old 2B travelway was still an escapeway. (Tr.150:3–13)
It is not clear from the record whether the meeting Belford recalled is the same as the one Combs
recalled.
24

Belford testified that he was sure he met separately with Barras and Reynolds
(Tr.60:18–19), but he was unsure if he also spoke with Barras and Reynolds together at the same
time. (Tr.316:4–10) Barras recalled that Reynolds was present. (Tr.290:3–8) Barras could not
remember the exact date but remembered the substance of this meeting vividly because Belford
accused Barras of not caring about the safety of his men, which was upsetting to him. (Tr.290:3–
18)
25

Reynolds testified that he came up on Combs, Barras, and Belford talking. (Tr.182:6–
9) Reynolds recalled Belford saying that it would be okay if the mine just hooked the lifelines
back together. (Tr.182:10–11) Reynolds recalled Barras saying that would not fix the issue
because the primary and secondary escapeways were now common. (Tr.182:12–16) Barras also
recalled this exchange with Belford. (Tr.290:21–291:14) Inspector Belford, however, denied
ever telling Barras that the mine could just put the lifelines together. (Tr.316:16–21)
26

Belford had never received any training from MSHA about what constitutes removal of
equipment for purposes of the escapeway requirement. (Tr.90:8–15) Belford had never
encountered a situation like this (Tr.88:9–13), so it is not surprising that he had not been trained
to this interpretation of the regulation. (Tr.88:2–89:18)

41 FMSHRC Page 418

Peabody was in or out of compliance. (Tr.288:3–11) Barras never heard from or spoke to
Bretzman before the citations were issued. (Tr.288:14–17)
3.

September 8, 2016

Before returning to the mine on the morning of September 8, 2016, Belford reviewed the
mine’s Emergency Response Plan and wrote three citations: Nos. 9039355, 9039356, and
9039357. (Tr.63:18–64:5; 289:6–14) Belford then traveled back to the mine and went to the
safety office where he met with Mike Cummins, a member of the mine’s safety staff, to give him
the paperwork for the citations. (Tr.64:12–65:4) Belford spoke again with Barras. (Tr.65:5–11)
Barras reiterated his position that the area was no longer an escapeway and the tracking system,
lifeline, and refuge alternative were no longer required. (Tr.65:18–66:3) Belford repeated his
position that an escapeway was needed because Wildcat Hills was still removing mine
equipment — CM234, CM235, and FB605 — from that area. (Tr.66:4–8) The two went to
Barras’ office and called Belford’s field office supervisor, Bob Bretzman, for a conference call.
(Tr.65:5–17; 66:18–22)
4.

Abatement and Termination of Citations

On September 12, 2016, Belford terminated all three citations after Peabody reestablished the escapeways in the old 2B panel. (Tr.312:12–313:10; Ex. S–2 at 3, 6, 10)
Citation No. 9039355 was terminated after Peabody received approval from MSHA for a manual
check-in/check-out system in the old 2B panel, which also included a requirement that miners rereport in every two hours. (Tr.102:3–11; 292:11–294:1; Ex. S–2 at 10) Citation No. 9039356
was terminated after Peabody installed a continuous durable lifeline in the old 2b secondary
escapeway.27 (Tr.79:10–15; Ex. S–2 at 3) Citation No. 9039357 was terminated after Peabody
re-established communication at the old 2B refuge alternative by use of a mine phone. (Ex. S–2
at 6)
As part of the abatement of these citations, MSHA did not require that FB605, CM234, or
CM235 be moved within a specified time period. (Tr.294:4–295:3) Nonetheless, they were
eventually moved out of the mine between September 8, 2016, and January 2, 2017. (Tr.299:13–
303:4)

27

In order to terminate the citation, the lifeline had to be re-established but was moved
from the travelway to the left return entry. (Tr.79:10–23) Belford testified that this was because
the travelway (where the lifeline had originally been located) was now ventilated with the same
air as the primary escapeway after a few brattices were knocked down during the air change on
August 27, 2016. (Tr.79:24–80:10; 317:10–19)

41 FMSHRC Page 419

IV. FURTHER FINDINGS OF FACT AND CREDIBILITY
A.

Eslinger’s Testimony

Respondent’s witness Mark Eslinger28 is a former MSHA civil engineer with extensive
experience with ventilation work. (Tr.205:10–208:11) He served as the supervisory mining
engineer for ventilation in MSHA’s District 8 office in Vincennes, Indiana — the same district
where the Wildcat Hills mine is located — for more than 25 years. (Tr.207:11–209:1) Eslinger
supervised ventilation inspectors who enforced MSHA ventilation regulations. (Tr.209:14–
210:8) After retiring from MSHA in 2009, Eslinger worked as general safety manager over three
underground mines in District 8. (Tr.209:2–13; 211:18–212:2; 233:22–234:15) In this capacity,
Eslinger was personally involved in the planning and execution of several unit moves, which
included air changes. (Tr.233:22–235:9)
1.

Subpart D–Ventilation Rewrite Committee 1985–1988

On January 28, 1985, MSHA established a task force to study commonly employed
practices and equipment used in longwall mining. 53 Fed. Reg. 2,382-01, 2,382–83 (Jan. 27,
1988). Eslinger participated on this task force and assisted in rewriting Subpart D of the 300
series ventilation regulations, sections 75.300 through 75.398, which included the escapeway
regulation in question here.29 (Tr.212:3–19) In 1988, MSHA issued its proposal for Subpart D–
Ventilation. (Tr.216:6–17; 53 Fed. Reg. at 2,382)
2.

Pyro Mining Company Disaster

In September 1989, an explosion at Pyro Mining Company’s William Station No. 9 mine
in Kentucky claimed the lives of 10 miners.30 (Tr.217:11–14) Eslinger was one of the chief
investigators in the post-event investigation into the causes of the tragedy.31 (Tr.217:7–18) The
28

The Secretary moved in limine to exclude Eslinger’s testimony. The motion was
denied, and Eslinger was allowed to testify. (Tr.11:7–12:22)
29

Eslinger also participated in the subsequent 1996 rewrite, which did not involve a
change to the escapeway regulation’s paragraphs (b)(1) and (b)(2) that are at issue here.
(Tr.210:19–23; 61 Fed. Reg. 9764-01, 9810 (Mar. 11, 1996). In 2004, he was also on the
committee that drafted and issued a new belt air rule that permitted the use of belt air on working
sections. (Tr.210:23–211:8)
30

Gas Explosion in Kentucky Leaves 10 Coal Miners Dead, N.Y. TIMES (Sept. 14, 1989),
https://www.nytimes.com/1989/09/14/us/gas-explosion-in-kentucky-leaves-10-coal-minersdead.html
31

The Pyro mine disaster took place at a longwall panel, Longwall Panel O. (Tr.217:25–
218:2) Unlike a continuous miner unit, longwall recovery and removal involves much more
work, including disassembling and moving hundreds of shields, a double arm sheer, the stage
loader, the chain conveyor, and the pan line. (Tr.218:16–219:5; 230:12–232:9) This process can
take weeks. (Tr.219:4–6)

41 FMSHRC Page 420

investigation committee found that a ventilation change, which directed air to the new longwall
panel, Longwall Panel P, was made on shift. (Tr.221:5–8) As a result, methane gas had
accumulated at the longwall face while miners were still disassembling the equipment at
Longwall Panel O. (Tr.217:25–218:13; 220:23–221:5) The investigation committee concluded
that the likely source of ignition was a flame from a cutting torch.32 (Tr.221:12–15) The
investigative team subsequently wrote a report, which became widely known in the mining
industry. (Tr.221:16–25)
3.

The 1992 Final Rule for Subpart D–Ventilation

The specific events at the William Station mine prompted the ventilation committee to
rewrite portions of the ventilation regulations before the 1992 final rule was issued. After
significant discussion, the rewrite committee concluded that if sufficient ventilation had been
maintained until after all the mechanical equipment had been dismantled and moved away from
the face, lethal conditions could have been avoided at the William Station mine. (Tr.222:21–
223:9) Thus, one of the revisions the rewrite committee worked on was a clarification that
escapeways must be maintained during both the installation and removal of equipment at the
working face. (Tr.222:19–223:15; 57 Fed. Reg. 20,868-01, 20,894 (May 15, 1992)) Prior to this,
there was no express requirement that escapeways be maintained with the attendant requirement
for separate and supplemental escapeway ventilation during installation or removal. (Tr.222:7–
18; 226:11–16; see 53 Fed. Reg. at 2,382)
The final rule was issued in 1992. 57 Fed. Reg. at 20,868. The new requirement that two
escapeways be maintained as equipment was being installed or removed from an area was added.
(Tr.223:10–15; 232:12–14; 233:3–9; 57 Fed. Reg. at 20,904; 30 C.F.R. § 75.380(b)(1)) Eslinger
testified the rule became widely known through a series of well-attended informational meetings
held around the country. (Tr.224:19–225:1) The escapeway standard was one of the topics
covered in these meetings. (Tr.226:8–19) The specific point of when “removal” was complete
was also covered. (Tr.226:20–22) According to Eslinger, removal was considered complete
when all of the face equipment had been moved outby the last loading point and the loading
point was decommissioned. (Tr.226:23–227:20) Eslinger explained the logic behind this: once
equipment is moved outby the loading point, the risk level drops considerably. (Tr.248:18–22)
Methane is most often liberated at the working section during mining (or shortly thereafter) and
not as likely liberated outby the loading point. (Tr.249:2–4; 250:12–19) Additionally, the
chance for explosions decreases because there would be no cutting and welding by the time all of
the equipment is moved outby the loading point.33 (Tr.248:22–249:10)
This interpretation was disseminated throughout District 8 during Eslinger’s tenure, until
his retirement in 2009. (Tr.227:24–228:19; 265:19–21) Eslinger testified this interpretation was
32

The pan line is in sections and connected by “dog bone connectors,” which are
connected by screws. (Tr.219:12–17) During the mining process, the screws rust. (Tr.219:17–
19; 232:3–7) The easiest way to remove the rusted screws is to cut them out with an acetylene
torch. (Tr.219:19–220:10; 232:7–9)
33

The disassembly of equipment precedes the moving of equipment. (Tr.249:19–250:7)
Nonetheless, dissembling of equipment is part of “removal.” (Tr.258:1–5)

41 FMSHRC Page 421

a matter of agency culture; it was never reduced to a formal written policy statement.
(Tr.228:24–229:16) Similarly, Eslinger’s interpretation of “removal” is not covered in any of
MSHA’s Program Policy Manuals (PPM). (Tr.244:9–16) Until September 8, 2016, to
Eslinger’s knowledge, MSHA never contradicted this practice. (Tr.235:10–22)
B.

Eslinger’s Credibility

The Secretary uses a generous portion of his briefs challenging Eslinger’s testimony. The
Secretary argues Eslinger’s testimony is (1) irrelevant (Sec’y Br. 21–23, 25–26; Sec’y Reply Br.
3–4); (2) inconsistent with the plain language and intent of the regulation (Sec’y Br. 21–22, 24–
26; Sec’y Reply Br. 3–4) ; and, (3) factually implausible (Sec’y Br. 21–23, 26; Sec’y Reply Br.
3–4)
The Secretary argues Eslinger’s testimony is irrelevant because he has not been employed
by MSHA in nearly a decade and admittedly has no authority to speak on MSHA’s behalf.
(Sec’y Br. 23) Additionally, even if he were still working for MSHA, Eslinger’s view would not
be binding on the Secretary as it does not “represent an official position” of the agency. (Id.;
Sec’y Reply Br. 3) While this is true, it does not preclude me from crediting the factual portions
of Eslinger’s testimony without reference to his ultimate legal conclusion.
The Secretary next argues Eslinger’s interpretation is at odds with the safety objective of
the escapeway regulation. (Sec’y Br. 21–22; Sec’y Reply Br. 3–4) Notably, the Secretary states
that “[t]he fact equipment is moved past the former loading point does not eliminate the hazards
associated with equipment removal.” (Sec’y Br. 25) As discussed in detail below, Eslinger’s
interpretation is closely compatible with the specific escapeway-related safety concerns
enumerated in the preambles. See discussion infra Section VI. B.
Finally, the Secretary argues Eslinger’s testimony was factually implausible because
Eslinger’s interpretation is not found in the extensive regulatory history of the escapeway
standard. (Sec’y Br. 24) While it is true the various Subpart D-related sections in the Federal
Register do not explicitly clarify when “removal” is complete, as outlined below, there is ample
evidence to support Eslinger’s position. See discussion infra Section VI. B. The Secretary
additionally claims to have serious doubts about Eslinger’s factual recounting, stating that the six
public meetings Eslinger mentioned at the hearing took place before the William Station mine
disaster — a temporal impossibility given that the “removal” language of the escapeway
regulation was added in response to the disaster. (Sec’y Br. 24–25) It appears, however, the
Secretary either misunderstood or misconstrued Eslinger’s statement. Eslinger’s statement about
the six informational meetings starts on page 223 of the transcript. (Tr.223:20) Indeed, while
speaking about the six public meetings in 1988, Eslinger specifically mentioned Grand Junction,
Colorado (Tr.223:25–224:1), one of the locations listed in the Federal Register and cited by the
Secretary. (Sec’y Br. 24; 57 Fed. Reg. at 20,868) However, on page 224, Eslinger began talking
about the 1992 final rule and the subsequent informational meetings. (Tr.224:4–225:15) Thus,
Eslinger described two sets of meetings: (1) the six public meetings in 1988 and (2) the three
informational sessions after 1992. The Secretary’s failure to understand this detail is not a
negative reflection of Eslinger’s credibility.

41 FMSHRC Page 422

I have no reason to doubt the relevance and applicability of Eslinger’s testimony about
how the escapeway requirement came into existence, his role in investigating the William Station
mine disaster, or his role in updating the ventilation regulations. Nevertheless, even if I were to
discredit Eslinger under any of the Secretary’s various theories (which I am not), I need not rely
on Eslinger’s testimony to reach my conclusion. A thorough review of the Federal Register
confirms many of his factual statements, insofar as I am able to make various inferences, which
leads me to an interpretation regarding section 75.380(b).
C.

Respondent’s Employee-Witnesses’ Credibility

The Secretary also criticizes Respondent for relying on the “self-serving” testimony of its
witness managers. (Sec’y Reply Br. 5) The Secretary uses this blanket proposition as an attempt
to discredit Respondent’s witnesses, but such a broad argument is not very convincing. It ought
to go without saying that a party’s own witnesses tend to support said party’s contentions. I will
not reject the testimony of Respondent’s witnesses strictly on the basis of a current or former
employment relationship. See Cannelton Indus., Inc., 20 FMSHRC 726, 731–32 (July 1998)
(citing Breeden v. Weinberger, 493 F.2d 1002, 1010 (4th Cir. 1974)). Similarly, the fact that
Respondent’s witnesses’ testimonies do not conform to the Secretary’s theory is an insufficient
reason to discredit or disqualify them.
Of Respondent’s four employee-witnesses, only Reynolds and Barras spoke in detail
about the historical application of the escapeway provision in District 8. Reynolds and Barras
both testified that they learned about removal of equipment, as it pertains to section 75.380(b), in
the same manner Eslinger described, and they have taught and applied it that way since 1992.
(Tr.169:6–170:3; 264:21–24) Barras’ interpretation of what “removed” means was informed by
his participation in a public information meeting, a possible phone call with Eslinger to get
clarification, and years of doing it that way, including while working as an MSHA inspector in
District 8. (Tr.265:19–266:1; 297:5–20) Reynolds’ interpretation was based on his four decades
of mining experience, the way air changes have been done since 1992, what he was trained and
told to do, and his understanding of how it is done everywhere in the region. (Tr.197:8–200:12)
Barras had never heard of any change in this view of when “removal” is complete. (Tr.267:4–
10) Both witnesses were internally consistent in their testimony, have decades of combined
mining experience in District 8, and their actions between September 6–8 were consistent with
their statements at the hearing. I see no reason to discredit their testimony about their personal
work history and understanding of the escapeway provision.34
V. PRINCIPLES OF LAW
Where the language of 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 meaning would lead to absurd results. Jim Walter Res., Inc., 28
FMSHRC 579, 587 (Aug. 2006) (citing Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir.
34

By contrast, the Secretary’s sole witness, Inspector Belford, had only six years of
professional mining experience, had not been specifically trained on what constituted “removal,”
and had never seen this application of facts to the regulation.

41 FMSHRC Page 423

1987); Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989)). In determining the
meaning of regulations, the Commission “utilizes ‘traditional tools of [. . .] construction,’
including examination of the text and the intent of the drafters.” Amax Coal Co., 19 FMSHRC
470, 474 (Mar. 1997) (quoting Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42, 44–45
(D.C. Cir. 1990)). The meaning of a regulation is “ascertain[ed] [. . .] not in isolation, but rather
in the context in which those regulations appear.” Wolf Run Mining Co., 32 FMSHRC 1669,
1681 (Dec. 2010) (citing RAG Shoshone Coal Corp., 26 FMSHRC 75, 80 n.7) (Feb. 2004)). As
recently articulated by the Supreme Court in Kisor v. Wilkie, a court should not afford Auer
deference (established in Auer v. Robbins, 519 U.S. 452 (1997)) unless the regulation is
genuinely ambiguous. 588 U.S. ___ (2019) (slip op. at 13) (citing Christensen v. Harris Cty, 529
U.S. 576, 588 (2000); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). Before
concluding that a rule is genuinely ambiguous, a court must first exhaust all the “traditional
tools” — the text, structure, history, and purpose — of construction. Id. at __–__ (slip op. at 13–
14).
If a regulatory provision is found to be ambiguous, the agency’s interpretation of that
provision is entitled to deference if it is found to be reasonable. See Drilling & Blasting Syst.,
Inc., 38 FMSHRC 190, 194 (Feb. 2016) (citing Auer, 519 U.S. at 452). However, “an agency’s
[. . .] interpretive authority is not unfettered.” Hobet Mining Co., 26 FMSHRC 890, 899 (Nov.
2004) (ALJ). Deference to the agency’s interpretation is inappropriate if its interpretation is not
reasonable, when it is plainly erroneous or inconsistent with the regulation, or if it does not
reflect the agency’s fair and considered judgment. Drilling & Blasting Syst., 38 FMSHRC at 194
(citing Auer, 519 U.S. at 461; Christopher v. Smith-Kline Beecham Corp., 567 U.S. 142, 154
(2012)); see also U.S. v. Mead Corp., 533 U.S. 218, 228 (2001) (finding that the amount of
deference to which an agency is entitled depends on, among other things, the agency’s
consistency and persuasiveness of its position). Additionally, the regulatory interpretation must
be one “actually made by the agency.” Kisor, 588 U.S. at __ (slip op., at 15). In other words, it
must be the agency’s “authoritative” or “official position,” rather than an ad hoc statement not
reflective of the agency’s views. Id.
As the Supreme Court has explained, an agency’s interpretation may not reflect its fair
and considered judgment when it conflicts with a prior interpretation. Christopher, 567 U.S. at
155; cf. Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 698 (1991) (court considered
longstanding and consistent interpretation as a factor on whether to defer); see also Thomas
Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994) (stating that a regulatory interpretation that
conflicts with a prior interpretation is “entitled to considerably less deference than a consistently
held agency view”). Courts should not give deference to an agency’s reading except to the
extent it has the “power to persuade.” Christopher, 567 U.S. at 159. The Secretary bears the
burden of establishing the factors necessary to afford his position deference. See Peabody
Twentymile Mining LLC, 39 FMSHRC 1323, 1332 (July 2017) (declining to grant the
Secretary’s position Auer deference when he failed to establish such a factor), argued, No. 179540 (10th Cir. Mar. 22, 2018).

41 FMSHRC Page 424

VI. DISCUSSION AND ANALYSIS
The central issue before me is whether the old 2B panel required escapeways at the time
of Inspector Belford’s inspection. The Wildcat Hills mine had three active units. Each of the
units ran continuous mining machines and feeders. The parties agree that an escapeway starts at
the former loading point and continues out of the mine. (Tr.36:8–11; 37:4–5; 305:3–11) The
parties also agree the old 2B panel was still being pre-shifted by examiners after the air change,
which occurred on August 27, 2016. (Tr.72:4–6; 307:16–20) Belford considered the old 2B
panel a working area because it was being pre-shifted three times a day, and, in his mind,
equipment was still being removed from the area.35 (Tr.36:14–17; 66:6–8; 71:17–18; 72:4–6;
81:8–18; 103:1–2)
As a preliminary matter, I conclude the fact that the old 2b panel was being pre-shifted
three times a day by examiners does not mean that the old 2b panel was an active working area
or that mechanized mining equipment was still being removed.
Active workings are “any place in a coal mine where miners are normally required to
work or travel.” 30 C.F.R. § 75.2. By contrast, a worked out-area is “an area where mining has
been completed [. . .] excluding developing entries, return air courses, and intake air courses.”
30 C.F.R. § 75.301. If a portion of a mine is not in active production, and no one is scheduled to
work there, the examination frequency is reduced to once a week. (Tr.161:23–162:10; 30 C.F.R.
§ 75.364) In the event that work is planned to be done in worked-out panels, e.g., pre-planning
or job testing, a pre-shift examination must be conducted even though there is no production.
(Tr.154:19–155:4; 193:19–22; 194:7–12; 30 C.F.R. § 75.360(b)(10)) Importantly, escapeways
are not required in worked-out areas of the mine even though miners go there to perform weekly
examinations or to conduct repairs. (Tr.282:10–12)
Here, the record is clear that mining on the old 2b panel ceased on August 26, 2016.
(Tr.173:4–14; Ex. R–7 at 2–3) The new unit 2 was operational and coal was being mined as
early as September 1, 2016, five days before Inspector Belford’s inspection. (Tr.174:24–175:4;
Ex. R–7 at 8) Belford relied on the fact that the old 2B panel was being pre-shifted three times a
day to conclude that the area was active and an escapeway was necessary. (See Tr.72:4–6) But
without further information, his conclusion does not follow from the frequency of examinations.
It is clear that no coal was being mined at the old 2b panel in September 2016. But, it is not clear
what type of work was being done to necessitate pre-shift examinations. (See Ex. S–2 at 19) It
is the Secretary’s burden to show by a preponderance of the evidence that the work being done in
the old 2b panel during Belford’s inspection was the type of work that not only required pre-shift
examinations but also required escapeways. The fact that parts of the old 2b panel were being
pre-shifted three times a day does not in and of itself make the old 2b panel active, requiring an
escapeway. As was explained in testimony, various types of work can be required in worked-out
35

Upon seeing CM234, CM235, and FB605 stored in the crosscuts outby the loading
point, Belford could have concluded the stored equipment was not needed to operate any of the
three working units because the three units were all currently in operation at the time.
(Tr.100:13–101:8) Thus, he could have further concluded that the old 2B panel was no longer
active and should be considered a worked-out part of the mine.

41 FMSHRC Page 425

mine areas, such as clean-up and maintenance. Any time that type of work is done, a pre-shift
examination is required, even though the area is in a worked-out area. But, this type of
maintenance work does not require the establishment of an escapeway. Once the work is done,
the examination frequency reverts to weekly, and as before, no escapeway is required.
If I were so inclined, I could end the discussion here. Nevertheless, I will continue on
with a full analysis of the escapeway regulation. The inquiry turns to whether the escapeway
regulation, particularly the language regarding the removal process, is clear or ambiguous. If the
regulation is ambiguous, the question is whether the Secretary is entitled deference. For the
reasons that follow below, I conclude the Secretary is not.
A.

The Escapeway Regulation is Ambiguous
The escapeway regulation states:
(b)(1) Escapeways shall be provided from each working section,
and each area where mechanized mining equipment is being
installed or removed, continuous to the surface escape drift
opening or continuous to the escape shaft or slope facilities to the
surface.
(2) During equipment installation, these escapeways shall begin at
the projected location for the section loading point. During
equipment removal, they shall begin at the location of the last
loading point.

30 C.F.R. §§ 75.380(b)(1),(2) (emphasis added).
Thus, escapeways are required in two instances: (1) at each “working section” and (2) at
each “area where mechanized mining equipment is being installed or removed.” Where the
language of 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 meaning would lead to absurd results. Jim Walter Res., 28 FMSHRC at 587. Working
sections are defined as “all areas of the coal mine from the loading point of the section to and
including the working faces.” 30 C.F.R. § 75.2. This much is clear.
It is not immediately evident, however, what constitutes “removal” or what the
parameters of the “area where mechanized mining equipment is being [. . .] removed” are.
Despite this, both parties assert in their briefs that the plain language of the regulation is clear.
(Sec’y Br. 14; Resp’t Br. 18) When both parties advance competing claims that the regulation is
“plain,” such as is the case here, it may indicate ambiguity. Canyon Fuel Co. v. Sec’y of Labor,
894 F.3d 1279, 1290 (10th Cir. 2018) (stating that both parties advanced plausible interpretations
of the regulation’s plain language and that the regulation is ambiguous); Walker Stone Co. v.
Sec’y of Labor, 156 F.3d 1076, 1081 (10th Cir. 1998); Alcoa Alumina & Chems., L.L.C., 23
FMSHRC 911, 914–15 (Sept. 2001). In determining the meaning of regulations, the
Commission “utilizes ‘traditional tools of [. . .] construction,’ including examination of the text
and the intent of the drafters.” Amax Coal, 19 FMSHRC at 474. The meaning of a regulation is

41 FMSHRC Page 426

“ascertain[ed] [. . .] not in isolation, but rather in the context in which those regulations appear.”
Wolf Run Mining, 32 FMSHRC at 1681. As recently stated by the Supreme Court, a court must
exhaust the “traditional tools” of construction and “cannot wave the ambiguity flag” prematurely
because the regulation is merely difficult to understand. Kisor, 588 U.S. at ___ (slip op. at 14).
I will analyze both “removal” of equipment and the “area” where equipment is being removed
below.
1.

“Removal”

The parties do not agree on what constitutes “equipment removal.” The Secretary
envisions “removal” as a process of physically moving the equipment out of the “area.” The
Secretary does not commit to a concrete definition of “removal” but states “the equipment
removal process involves transporting dangerous equipment through the mine, often requiring
the use of additional dangerous machinery to provide transport.” (Sec’y Br. 16) (emphasis
added). It is not clear from his briefs, however, whether he thinks “removal” also involves
disassembly of mechanized mining equipment or lacing of cables.
In contrast, the Respondent draws a line between disassembly and transportation. During
the hearing, whenever the Secretary’s counsel used the word “removal” to indicate the physical
moving of mining equipment (Tr.298:22; 301:15–16; 304:20; 305:14), Respondent’s counsel
objected (Tr.299:1–4; 301:18–19; 305:16–19), arguing the term “removed” in the context of
section 75.380(b) is a “very weighted term” and “a term of art.” (Tr.298:25–299:7)
Respondent’s post-hearing brief, however, gives the impression Respondent does not
disagree that removal of mechanized mining equipment involves at least some degree of physical
movement or transportation. For example, Respondent’s post-hearing brief states its position
that removal is completed once all section equipment is “moved outby the location of the former
loading point.” (Resp’t Br. 18, 20) (emphasis added).
However, in its reply brief, Respondent readopts and rearticulates its position from the
hearing that “removal” of mechanized mining equipment is “distinct from transportation.”
(Resp’t Reply Br. 9) Notably, Respondent cites that the William Station mine disaster, on which
the escapeway equipment removal language was predicated, “did not involve transportation.”
(Id. at 10) Thus, Respondent argues section 75.380(b)(1) does “not contemplate transportation
of equipment from place to place.” (Id.) Respondent then argues that removal activity — for
example, cutting, disconnecting, or lacing cables — is “distinguishable from mere
transportation.” (Id.) According to Respondent, removal activities are steps taken to “aid in
transportation” but are distinct from it. (Id.)
This is peculiar. Although Respondent cites heavily to Eslinger’s testimony to support its
contentions here, Eslinger himself stated unambiguously that disassembling of machinery is part
of removal. (Tr.257:23-258:5) Respondent’s own language in its post-hearing brief that
removal is completed “once all section equipment is moved outby the location of the former
loading point” (Resp’t Br. 18) (emphasis added) also contradicts its apparent position that
“removal” does not involve any transportation. These two seemingly contradictory positions can

41 FMSHRC Page 427

be reconciled, however, if “transportation” and “move[ment]” are discrete concepts. If such a
distinction exists, neither the Respondent (nor the Secretary) has yet to expound on it.
I am similarly unpersuaded by Respondent’s position that “removal” is a term of art.
There is nothing in the plain language of the regulation or even the regulatory history to support
the position that “removal” is a technical term that limits the process to only the disassembly or
cable lacing steps. Words that are not technical in nature are to be given their usual, natural,
plain, ordinary, and commonly understood meaning. W. Fuels-Utah, Inc., 11 FMSHRC 278, 283
(Mar. 1989) (citing Old Colony R.R. Co. v. Comm’r of Internal Revenue, 284 U.S. 552, 560
(1932)). To my knowledge, to date, neither the Commission nor its ALJs have had to define the
word “remove” or “removal.” Remove means “[t]o move from a place or position occupied; to
transfer or convey from one place to another; to take off; to take away; to withdraw.” Remove,
The Am. Heritage Dictionary of the English Language 1476 (4th ed. 2009); see also Webster’s
Third New Int’l Dictionary 1921 (3d ed. 1993) (“to change or shift the location, position, station,
or residence of; to move by lifting, pushing aside, or taking away or off”). Removal means
“[t]he act of removing; the fact of being removed; relocation, as of a residence or business.”
Removal, The Am. Heritage Dictionary of the English Language 1476 (4th ed. 2009); see also
Webster’s Third New Int’l Dictionary 1921 (3d ed. 1993) (“[t]he act of removing or fact of being
removed; shift of location”).
Thus, I conclude that “removal” in section 75.380(b) involves at least some degree of
physical transportation or movement of mechanized mining equipment.
2.

“Area”

The more important question before me is the extent of such physical transportation or
movement. The language of the regulation reads: “Escapeways shall be provided from each
working section, and each area where mechanized mining equipment is being [. . .] removed
[. . .] .” 30 C.F.R. § 75.380(b)(1). With respect to this second condition, once the mechanized
mining equipment is removed from the “area” — whatever that is determined to mean —
removal is complete and escapeways are no longer required. Unfortunately, the definition
section in the regulation is of no assistance here. Similarly, a standard American English
dictionary does not give any meaningful guidance.36

36

Area is defined as “[a] roughly bounded part of the space on a surface; a region.”
Area, The Am. Heritage Dictionary of the English Language 94 (4th ed. 2009); see also
Webster’s Third New Int’l Dictionary 115 (3d ed. 1993) (“a level or relatively level piece of
unoccupied or unused ground; the superficial contents of any figure; any particular extent of
space or surface”).

41 FMSHRC Page 428

The parties interpret the relevant “area” in vastly different ways.37 According to the
Secretary, the relevant “area” is the entirety of the old 2b panel (Sec’y Br. 14, 17, 19–20, 29,
31),38 which spans a distance of 8,920 feet. (Tr.52:7; Ex. J–3) By contrast, Respondent argues
that the relevant “area” is based on the former working section, that is to say the area from the
former loading point inby to the former working face (Resp’t Br. 18, 20–21), a distance of
approximately 360 feet. (Tr.52:5–8; Ex. J–3) Despite the fact that the Secretary’s interpretation
yields a result 25 times larger than Respondent’s, both interpretations of “area” are facially
plausible.
According to the Secretary, had Respondent fully removed the equipment from the old
2B panel prior to making the air change, escapeways would not have been required because the
old 2B panel “would no longer constitute an area from which equipment was being removed.”
(Sec’y Br. 20) In support of his interpretation that “area” in section 75.380(b) means the old 2B
panel, the Secretary cites repeatedly to the plain language of the regulation. (Sec’y Br. 2, 10, 12,
14–15, 17–18, 21, 36; Sec’y Reply Br. 1, 2, 4) However, the word “panel” does not appear
anywhere in section 75.380. See 30 C.F.R. § 75.380. In all of Subpart D as currently written,
the word “panel” only appears nine times. See 30 C.F.R. §§ 73.333; 75.335; 75.351. Two of the
“panels” relate to strength tests for building construction. See 30 C.F.R. § 75.333. Four of the
“panels” relate to seals constructed to separate the active longwall panel from the longwall panel
previously mined. See 30 C.F.R. § 75.335. The final three “panels” relate to carbon monoxide
and smoke monitors. See 30 C.F.R. § 75.351. Similarly, the word “unit” does not appear in
section 75.380. See 30 C.F.R. § 75.380. Thus, the plain language does not clearly support the
Secretary’s contention that “area” in section 75.380(b) is referencing the entirety of the panel.39
Respondent argues the meaning of “area” is clear once one understands the purpose and
context of section 75.380(b). (Resp’t Br. 18) However, even after an exhaustive review of the
Subpart D regulations as well as the various Federal Register preambles pertaining to Subpart D,
see discussion infra Section VI. B., although strongly supported, I cannot conclude that
Respondent’s interpretation is plainly evident either.

37

The centrality of the concept of “area” in this case is evident by the frequency it
appears in the record and briefs. The word “area” was used by the Secretary 32 times in his
briefs. The Respondent used it 35 times. It appeared in the transcript 176 times.
38

While the Secretary was very careful to state that equipment was still being removed
from the “old 2B panel” in his briefs, Belford repeatedly characterized the removal from an
undefined “area” at the hearing. (Tr.36:14–17; 53:10–13; 66:6–8; 71:17–18; 72:4–6; 81:8–9,
17–18; 103:1–2)
39

Curiously, the 1988 Federal Register discusses disallowing “permanent electrical
equipment or diesel equipment outby working panels” in at least one intake escapeway from
each working section in the draft escapeway regulation preamble and draft 75.380 language. 53
Fed. Reg. at 2,408, 2,423 (emphasis added). However, this language was dropped in the 1992
final rule. See 57 Fed. Reg. at 20,904–06, 20,926–27.

41 FMSHRC Page 429

Upon review of the plain language of section 75.380(b) as well as the definition section
in section 75.2, and as evident by the clearly diverging interpretations proffered by the parties, I
conclude the term “area” as used in section 75.380(b) is ambiguous.
B.

The Secretary is not Entitled to Deference Because His Interpretation does not show
the Agency’s Fair and Considered Judgment

Having found above that section 75.380(b) is ambiguous, I am to give deference to the
Secretary’s interpretation if it is found to be reasonable. See Drilling & Blasting Syst., 38
FMSHRC at 194 (citing Auer, 519 U.S. at 452). However, as recently articulated by the
Supreme Court, Auer deference does not always apply; in fact, “it often doesn’t.” Kisor, 588
U.S. at ___ (slip op. at 18). Deference to the agency’s interpretation is inappropriate if its
interpretation is not reasonable, when it is plainly erroneous or inconsistent with the regulation,
or if it does not reflect the agency’s fair and considered judgment. Drilling & Blasting Syst., 38
FMSHRC at 194 (citing Auer, 519 U.S. at 461; Christopher, 567 U.S. at 155); see also Mead
Corp., 533 U.S. at 228 (finding that the amount of deference to which an agency is entitled
depends on, among other things, the agency’s consistency and persuasiveness of its position).
Additionally, courts should not give deference to an agency’s reading except to the extent it has
the “power to persuade.” Christopher, 567 U.S. at 159.
As the Supreme Court has explained, an agency’s interpretation may not reflect its fair
and considered judgment when it conflicts with a prior interpretation. Christopher, 567 U.S. at
155; cf. BethEnergy Mines, 501 U.S. at 698 (court considered longstanding and consistent
interpretation as a factor on whether to defer); see also Thomas Jefferson Univ., 512 U.S. at 515
(stating that a regulatory interpretation that conflicts with a prior interpretation is “entitled to
considerably less deference than a consistently held agency view”). The Secretary bears the
burden of establishing the factors necessary to afford his position deference. See Peabody
Twentymile Mining LLC, 39 FMSHRC at 1332 (declining to grant the Secretary’s position Auer
deference when he failed to establish such a factor), argued, No. 17-9540 (10th Cir. Mar. 22,
2018).
I am convinced the position taken by the Secretary is unreasonable and deserves no
deference for three reasons. First, the Secretary has failed to provide sufficient evidence to
support that his interpretation is reasonable or the result of the agency’s fair and considered
judgment. Second, when applied to section 75.380(b), the Secretary’s interpretation of “area
where mechanized mining equipment is being installed or removed” is logically inconsistent.
Finally, when applied to other similar sections in Subpart D, the Secretary’s interpretation of
“area where mechanized mining equipment is being installed or removed” leads to absurd
results. I will address each in turn.
1.

The Secretary has Failed to Provide Sufficient Evidence to Support his
Interpretation that the “Area” in Section 75.380(b) is the Old 2B Panel

The Secretary’s briefs state at least two dozen times that the relevant “area” the mining
equipment must be removed from is the old 2B panel. (Sec’y Br. 3, 6–8, 10–11, 14–15, 17–20,
29, 31; Sec’y Reply Br. 1–2, 4–5) As justification for this, the Secretary cites repeatedly to the

41 FMSHRC Page 430

plain language (Sec’y Br. 2, 10, 12, 14–15, 17–18, 21, 36; Sec’y Reply Br. 1–2, 4), the
regulatory intent, (Sec’y Br. 12, 17, 21, 25– 27; Sec’y Reply Br. 2, 4–5), the regulatory history,
(Sec’y Br. 16, 21, 23–24, 27; Sec’y Reply Br. 3–4), and various preambles. (Sec’y Br. 16–17,
21, 26; Sec’y Reply Br. 2, 4)
Beyond this level of generality, however, there is little if any exposition of how he arrives
at his conclusion. An example of this can be seen on page 15 of the Secretary’s post-hearing
brief. The first line correctly cites the language in the regulation: “areas where mechanized
mining equipment is being removed.” (Sec’y Br. 15) (emphasis added) But, after citing case
law on determining whether a standard is plain or ambiguous, the Secretary states, “[i]n this case,
because equipment was being removed from the Old 2B panel [. . .] .” (Id.) (emphasis added)
The Secretary seemingly pulls the “old 2B panel” language out of nowhere and merely
substitutes it for the “area” he cited a moment earlier. This logical legerdemain permits the
Secretary to avoid addressing the fundamental question before me: Why it is reasonable to think
the old 2B panel is the “area” where mechanized mining equipment is being removed from. The
Secretary cannot assume away his burden. Likewise, I cannot assume the Secretary has a good
reason for his policy choice: The Secretary is obliged to supply a rationale and articulate a
reasoned judgement as to why his interpretation must be adopted. See Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
The Secretary’s persistent citing to the regulatory intent, regulatory history, and
preambles, while authoritative at first glance, lacks persuasive strength when placed under
scrutiny. This is not to say the Secretary did not at times point to specific language in the
Federal Register. Between both of his briefs, the Secretary cited or referenced specific language
in the Federal Register several times. (Sec’y Br. 16, 23–24, 26, 26 n.10, 29; Sec’y Reply Br. 4)
However, none of his citations helped support the major contention that “area” in section
75.380(b) means the old 2b panel.
“Area(s) Where Equipment is Being Installed or Removed” Mirrors the
Term “Working Section”
As discussed above, see discussion supra Section IV. A. 3, the phrase “area(s) where
equipment is being installed or removed,” which is at the heart of this litigation, did not appear in
the 1988 preamble or draft language.40 See 53 Fed. Reg. 2,382 et seq.
40

As a direct example, the escapeway regulation found in the 1988 draft proposal read as

follows:
§ 75.380 Escapeways.
(a) Except in situations addressed by §§ 75.384 and 75.385, at least
two separate and distinct travelable passageways shall be
designated as escapeways and shall be:
(1) Provided from each working section continuous to the surface
or to escape shaft or slope facilities to the surface;
(2) Maintained in a safe condition to ensure passage at all times of
any person, including disabled persons [. . .] .
(continued…)

41 FMSHRC Page 431

Consistent with Eslinger’s testimony about the Pyro Mining Company’s William Station
No. 9 Mine disaster and how his investigative committee’s findings prompted the ventilation
committee to rewrite portions, see discussion supra Section IV. A. 3, the 1992 Federal Register
states:
The specific reference in the final rule requiring preshift
examination of areas where equipment is being installed or
removed has been added to clarify the existing rule. The Agency
has always considered these areas to be subject to the requirements
of the preshift examination; however, an investigation following an
explosion at the William Station Mine indicated that some
confusion existed on this issue.
57 Fed. Reg. at 20,894 (emphasis added). MSHA subsequently added the phrase or close variant
of the phrase “area(s) where equipment is being installed or removed” 41 17 times in the 1992
preamble and 12 times in the then-newly promulgated regulations. 57 Fed. Reg. 20,868 et seq.
The first explanation in the Federal Register42 about mechanized mining equipment being
“installed or removed” provides useful context:
Areas where coal is being extracted or mechanized mining
equipment is being installed or removed are typically the places in
any underground mine where methane accumulation and other
hazards to health or safety can develop quickly when ventilation is
interrupted. To avoid exposure of miners to these hazards, timely
withdrawal of persons is an important safety practice. Requiring
withdrawal from the working section means that miners must be
withdrawn out by [sic] the section loading point. In areas where
equipment is being installed or removed and the loading point has

40

(…continued)
53 Fed. Reg. at 2,422. The phrase “area where mechanized mining equipment is being installed
or removed” is nowhere to be found.
41

Although this phrase is used in different regulations throughout Subpart D, an
important canon of statutory and regulatory interpretation is that a word or phrase is presumed to
be used consistently and bear the same meaning throughout a text. See U.S. v. Castleman, 572
U.S. 157, 174 (2014) (Scalia, J., concurring); see also Antonin Scalia & Bryan A. Gardner,
Reading Law: The Interpretation of Legal Texts 167 (2012).
42

Admittedly, “[a]gency regulations can sometimes make the eyes glaze over.” Kisor,
588 U.S. at ___ (slip op. at 14). Combing through regulatory history, while not always exciting,
is sometimes necessary to solve these “hard interpretive conundrums [. . .] .” Id.

41 FMSHRC Page 432

not been established or has been removed, withdrawal is to be to
the anticipated location of the loading point or to the last location
of the loading point.
57 Fed. Reg. at 20,875 (emphasis added). This language highlights two critically important
points: (1) methane accumulations develop quickly when ventilation is interrupted, especially at
the working face (i.e., “[a]reas where coal is being extracted”) and (2) MSHA’s intention that
“areas where equipment is being installed or removed” be made in reference to the (anticipated
or former) loading point and mirrors the working section.
MSHA reemphasizes the danger of methane accumulations throughout the preambles.
The general discussion section of the preamble in 1992 states that the Subpart D regulations are
aimed at protecting against “mine fires and explosions due in part to the presence of explosive
gases in underground coal mines; oxygen-deficient atmospheres; and accumulations of other
harmful gases.” 57 Fed. Reg. at 20,868. Additionally, the general discussion states that
ventilation is a primary method of controlling and mitigating miners’ exposures to respirable
dust to prevent the development of pneumoconiosis. Id. The preamble discussion about
escapeways states, “[e]scapeways are the primary means of escape for miners during a mine fire
or similar life-threatening emergency.” Id. at 20,904; see also 61 Fed. Reg. at 9,810 (“[w]hen a
fire, explosion or other emergency necessitates an immediate evacuation of a mine, the
designated route for miners to leave the mine is the escapeway”); 53 Fed. Reg. at 2,408
(“[e]scapeways are the primary means of egress during a mine fire or similar life-threatening
situation”).
Given the above, the “area” during installation and removal of mechanized mining
equipment that MSHA was most concerned with logically appears to have been where
“accumulation and other hazards to health or safety can develop quickly when ventilation is
interrupted.” 57 Fed. Reg. at 20,875. In other words, in the case of mechanized mining
equipment removal, the place (former active face) where coal was formerly being extracted, i.e.,
the former working section.
MSHA reemphasizes the relationship between the “working section” and “area(s)” where
mechanized mining equipment is/are being installed or removed in the discussion section for
escapeways in bituminous and lignite mines:
Paragraph (b)(2) recognizes that during the installation or removal
of mechanized mining equipment, the term working section, as
defined, may not be appropriate because in one case the loading
point may not yet be located by the installation of a belt tailpiece
or feeder and in the other, it may have already been removed. In
these cases, the required escapeways must begin at the projected
location of the loading point in areas where equipment is being
installed and at the location of the last loading point for the section
when equipment is being removed. This aspect of the final rule

41 FMSHRC Page 433

clarifies the existing provision and is necessary to provide safe
escape for miners from hazards that may develop during this phase
of the mining operation.
57 Fed. Reg. at 20,904 (emphasis added).
The meaning of words, especially those deemed to be ambiguous, is derived from
context. See Deal v. United States, 508 U.S. 129, 132 (1993) (fundamental principle that the
meaning of a word cannot be determined in isolation, but must be drawn from context in which
is it used); Shell Oil Co. v. Iowa Dep’t of Revenue, 488 U.S. 19, 25 n.6 (1988) (“Words are not
pebbles in alien juxtaposition; they have only a communal existence; and not only does the
meaning of each interpenetrate the other, but all in their aggregate take their purport from the
setting in which they are used.”) (citations omitted). Indeed, like peas in a pod, the phrase
“area(s) where mechanized mining equipment is being installed or removed” nearly always finds
itself positioned immediately next to “working section” (see 30 C.F.R. §§ 75.313(a)(3);
75.325(g); 75.332(a)(1); 75.350(a), (b), (b)(2), (b)(6), (d); 75.351(b)(1), (c)(4), (c)(7), (f),
(n)(3)(iv); 75.352(c)(1); 75.360(b)(3), (c)(1); 75.371(ii); 75.380(b)(1)) or “working place” (see
30 C.F.R. §§ 75.323(b)(1),(2)).43 Thus, applying the constructional cannon of noscitur a sociis,
that a word is known by its associates, it is sensible and reasonable to conclude “area(s) where
mechanized mining equipment is being installed or removed” is closely related to and mirrors the
active “working section.”
“Area” is to be Interpreted Narrowly
Even if the applicable “area” where mechanized mining equipment is being installed or
removed was not meant to mirror the working section, there is ample evidence throughout the
Federal Register that “area” should nonetheless be read narrowly.
The discussion of preshift examinations, section 75.360(b), notes “[i]ncluded in this
examination of working sections and areas where equipment is being installed or removed are
working places and ventilation controls and approaches to worked-out areas on those working
sections or in these areas. 57 Fed. Reg. at 20,893–94 (emphasis added). Had MSHA intended
43

The few exceptions can be found in section 75.362, On-Shift Examination. 30 C.F.R.
§ 75.362. Subsection (a)(1) requires an on-shift examination of “each section where anyone is
assigned to work during the shift and any area where mechanized mining equipment is being
installed or removed during the shift.” 30 C.F.R. § 75.362(a)(1) (emphasis added). Subsection
(c)(1) requires an on-shift examination to include a determination of the volume of air “in the last
open crosscut of each set of entries or rooms on each section and areas where mechanized
mining equipment is being installed or removed, in the intake entry or entries at the intake end of
the longwall or shortwall.” 30 C.F.R. § 75.362(c)(1) (emphasis added). Subsection (c)(2)
requires a determination of the volume of air “on a longwall or shortwall, including areas where
longwall or shortwall equipment is being installed or removed, in the intake entry or entries at
the intake end of the longwall or shortwall.” 30 C.F.R. § 75.362(c)(2) (emphasis added). None
of these exceptions, however, fortify the Secretary’s argument that “area” where mechanized
mining equipment is being installed or removed means an entire panel.

41 FMSHRC Page 434

the “area” where equipment is being installed or removed to encompass the entirety of the panel,
there would be no need to enumerate these last three places. The discussion continues on to
state, “[o]ther areas that require a preshift examination are approaches to worked-out areas in
active workings and seals along intake entries where intake air passes through or along these
entries on its way to a working section.” Id. at 20,894 (emphasis added). Again, if “area” were
to encompass the entire panel, there would be no need to describe these “other areas.”
The same pattern of using the word “area” to delineate a discrete location is observed
throughout the regulations. See, e.g., 30 C.F.R. §§ 75.313(b) (mentioning “other areas” where
methane is likely to accumulate); 75.313(c)(2) (mentioning “areas or haulageways where
methane is not likely to migrate or accumulate”); 75.313(c)(3) (describing “areas where methane
is not likely to migrate to or accumulate”); 75.351(b)(1), (n)(3)(iv) (noting “other areas
designated in the approved emergency evacuation and firefighting program of instruction” in
addition to working sections and areas where mechanized mining equipment is being installed or
removed); 75.351(e)(1)(iii) (mentioning “areas along each belt entry”); 75.352(c)(1) (describing
“affected areas” during sensor alerts and alarms); 75.361(b) (describing areas “required to be
examined outby a working section”); 75.384(c)(2) (explaining that miners shall be withdrawn
from “face areas” to “a safe area outby the section loading point”); 75.388(d) (discussing
borehole penetration in an “area that cannot be examined”); 75.388(f) (mentioning an
“inaccessible area of another mine”); 75.389 (describing areas penetrated by boreholes).
I note one clear exception: The phrase “underground area,” which describes a portion of
the mine even larger than the old 2B panel, is used throughout Subpart D. 30 C.F.R.
§§ 75.311(b)(3); 75.312(c), (d); 75.313(d)(1)(i); 75.360(a)(1), (g); 75.364(f)(1), (2);
75.372(b)(9); 75.389(c)(3). However, the word “area” is modified by the word “underground.”
Section 75.380(b)’s “area where mechanized mining is installed or removed” does not have this
expansive modifier. Thus, the most sensible conclusion is that an “area” where mechanized
mining equipment is being installed or removed is also interpreted as a discrete location.
The Secretary has Failed to Provide Evidence to Bolster his Argument
As discussed above, the language of the Subpart D regulations and preambles does not
support a reading of “area(s) where mechanized mining equipment is being installed or
removed” in the way the Secretary interprets. The Secretary’s remaining arguments shift the
focus to the Respondent: (1) Respondent’s interpretation is contrary to the safety purposes of the
Mine Act and (2) Respondent’s witnesses are not credible.
The Secretary twice cites to the Federal Register’s “hazards that may develop during [the
installation or removal] phase of the mining operation” language for the proposition that
equipment removal is a “distinct phase of mining” that requires an escapeway to protect against
all hazards, including pinch-point hazards, crush-by hazards, and electrical hazards. (Sec’y Br.
16, 26) This interpretation distracts from the clear and intentional directive of the ventilation
regulations and, more specifically, the escapeway provision. The danger the escapeway
regulation addresses is not any conceivable hazard in a mine, but the potential of a methane
ignition and explosion such as what happened in the William Station mine disaster, which was
the impetus for adding the subject escapeway requirement during both equipment installation and

41 FMSHRC Page 435

removal. (Tr.217:7–221:25; see 57 Fed. Reg. at 20,894) The relevant danger is the one that
arises from changing airflow too soon when a production unit is being decommissioned. If the
face airflow is decreased too soon, methane that would otherwise have been evacuated, as during
normal production, is allowed to build up. Thus, while the Secretary’s general, catch-all
justification of “in the interest of miner safety” (Sec’y Br. 25) is ever-present and ever-important
in Mine Act cases, the Secretary fails to properly acknowledge the specific safety-purposes of
escapeways.
With this purpose in mind, the Secretary’s contention that Respondent’s interpretation
“imposes an arbitrary line as the difference between safety and danger” (Sec’y Br. 17) is less
convincing. Eslinger, Reynolds, and Barras all testified about the extremely hazardous
conditions — especially during the loading of coal — that exist inby the loading point, including
unsupported roof and higher levels of methane. (Tr.196:4–11; 248:21–10; 250:12–251:1; 276:9–
15) Indeed, the 1992 preamble discussion of methane supports Respondent’s witnesses’
statements and logic. See, e.g., 57 Fed. Reg. at 20,875 (“Areas where coal is being extracted or
mechanized mining equipment is being installed or removed are typically the places in any
underground mine where methane accumulation and other hazards to health or safety can
develop quickly when ventilation is interrupted.”). There is also direct support in the regulations
that the loading point is not an “arbitrary” line of safety. In section 75.384(c), Longwall and
Shortwall Travelways, the regulation states: “[w]hen a roof fall or other blockage occurs that
prevents travel in the travelway — [. . .] (2) Miners shall be withdrawn from face areas to a safe
area outby the section loading point.” 30 C.F.R. § 75.384(c)(2) (emphasis added); see also 57
Fed. Reg. at 20,908. The preamble in the 1992 Federal Register additionally supports that the
loading point is an important place marker: “[t]o avoid exposure of miners to [methane
accumulation and other hazards that develop quickly when ventilation is interrupted], timely
withdrawal of persons is an important safety practice. Requiring withdrawal from the working
section means that miners must be withdrawn out by [sic] the section loading point.” 57 Fed.
Reg. at 20,875 (emphasis added). Moving equipment outby the loading point, while not totally
free from all potential hazards, moves it into an area substantially less hazardous for methane
ignition. (Tr.248:18–249:10) This is not an immaterial consideration.
The Secretary’s argument that the run-of-the-mill danger associated with moving any
equipment from one place to another in a mine, not the specific danger of methane accumulation
and explosions addressed in this regulation, urges the unconvincing ad hoc interpretation
advocated here, that any moving of any equipment in a mine requires the establishment of an
escapeway. As will be discussed below, see discussion infra Section VI. B. 2, the absurdity of
the Secretary’s interpretation is evidenced by specific examples of moving mechanized mining
equipment on worked-out panels.
The Secretary spends the remainder of his argument attempting to discredit Eslinger and
Respondent’s other witnesses. I have already determined above, see discussion supra Sections
IV. B & C, that I could find no legitimate reason to discredit Respondent’s witnesses. In any
event, the Secretary’s preferred arguments are two-sided blades. For example, the Secretary
attempts to discredit Eslinger by stating that “[d]eference is owed to the decision maker
authorized to speak on behalf of the agency, not to each individual agency employee.” (Sec’y
Br. 23, citing Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1321 (D.C. Cir. 1998)) It is true that

41 FMSHRC Page 436

despite having worked directly on the drafting of the Subpart D regulations over many years,
Eslinger does not speak on behalf of the agency. But, by the same token, no single agency
employee may speak for the agency, including Belford. In the absence of any additional
evidence, it appears the Secretary is basing his interpretative position on the testimony of a single
MSHA inspector with six years of mining experience who had never seen this type of situation
before. As recently clarified by the Supreme Court, Auer deference can only be given if the
regulatory interpretation is the agency’s “authoritative” or “official” position and must “at the
least emanate from [agency heads], using those vehicles, understood to make authoritative policy
in the relevant context.” Kisor, 588 U.S. at ___ (slip op. at 16). Belford and his direct superiors
do not qualify.
The Secretary also argues that Respondent can point to no PPM or Question and Answer
(Q&A) documents to support its interpretation. (Sec’y Br. 24) Again, this cuts both ways. The
Secretary is the party uniquely responsible for issuing PPMs and Q&A documents, but he is
similarly unable to point to any interpretative documentation to support his position. It is the
Secretary, not the Respondent, who bears the burden of establishing the factors necessary to
afford his position deference. See Peabody Twentymile, 39 FMSHRC at 1332, argued, No. 179540 (10th Cir. Mar. 22, 2018).
The Secretary’s History of Interpretation and Enforcement is Unclear
Although not explicit in the Secretary’s post-hearing brief, the Secretary implies in his
reply brief that his interpretation of the escapeway regulation has been consistently held and
enforced. (See, e.g., Sec’y Reply Br. 5 (“Respondent’s argument missed the mark because it
mistakenly presumes the Secretary has changed [his] position [. . .] the Secretary is not taking a
new position but instead merely opposing Respondent’s misconstruing of a clear regulation.”))
(emphasis added) However, there is no evidence in the record that the Secretary’s current view
has been long-held. The Secretary’s sole witness, Inspector Belford, said nothing about this
point. Belford said nothing about this being a long-held belief in the District 8 office, let alone
across all MSHA offices. Belford did state on cross examination, however, that he was never
trained on what “removal,” and by logical extension, the applicable “area,” meant. (Tr.90:13–
15)
The Secretary explicitly states that MSHA had never officially adopted Respondent’s and
Eslinger’s interpretation of the escapeway provision. (Sec’y Reply Br. 3, 5–6) Nevertheless, he
allows that even if Eslinger’s interpretation was advanced when Subpart D was first
promulgated, an inconsistent enforcement pattern does not estop MSHA from proceeding under
the interpretation it concludes is correct. (Sec’y Br. 23, citing U.S. Steel Mining Co., 15
FMSHRC 1541, 1547 (Aug. 1993)) That he did not provide evidence of enforcement against
Respondent’s practices is, in the Secretary’s words, “of no consequence.” (Sec’y Reply Br. 6) It
is certainly possible that Respondent’s witnesses, with decades of combined mining experience
in District 8, (and, by extension, their various operator employers) misunderstood and were in
violation of the escapeway provision for 24 years. It is also possible they managed to evade
reprimand or citation despite practicing mechanized mining equipment removal based on this
purported misunderstanding. That these operators seem to have done so openly in plain sight
does not make this a statistical impossibility either. However, as stated by the Supreme Court,

41 FMSHRC Page 437

“where, as here, an agency’s announcement of its interpretation is preceded by a very lengthy
period of conspicuous inaction, the potential for unfair surprise is acute.” Christopher, 567 U.S.
at 158. Quoting the sagacious Judge Posner of the Seventh Circuit, the Supreme Court further
noted that “while it may be ‘possible for an entire industry to be in violation of the [FLSA] for a
long time without the Labor Department noticing,’ the ‘more plausible hypothesis’ is that the
Department did not think the industry’s practice was unlawful.” Id. (quoting Dong Yi v. Sterling
Collision Ctrs., Inc., 480 F.3d 505, 510–11 (7th Cir. 2007)). Such appears to be the case here.44
Alternative arguments are acceptable in most cases. But when the Secretary — after
having provided virtually no evidence — claims the agency has been consistent in its
interpretation for years, and then argues that the agency may change his views without notice,
without consistent enforcement, and without evidence to support the argument, the Secretary’s
interpretation cannot be deemed to be fair, considered, or even reliable.
The Secretary has adduced insufficient evidence to show that his interpretation is
reasonable or reflects the agency’s fair and considered judgment; to the contrary, the evidence
demonstrates that the Secretary’s position is unreasonable and merely the ad hoc interpretation of
a single inspector and his supervisors. This logical lacuna in the Secretary’s interpretation is
evident when I apply the Secretary’s interpretation to section 75.380(b) and even more so when I
apply it to the other regulations in Subpart D.
2.

The Secretary’s Interpretation of Section 75.380(b) Yields Inconsistent Outcomes
and Leaves Logical Gaps

The Secretary cites repeatedly to the fact that moving mechanized mining equipment can
create hazards, for example pinch-point hazards, crush-by hazards, electrical hazards, and fire
hazards. (Sec’y Br. 16, 26) The Secretary correctly points to the fact that not all hazards are
eliminated once equipment is moved past the former loading point. (Id. at 16, 18, 25) For these
reasons, the Secretary argues mechanized mining equipment had to be moved off the old 2b
panel in order to be properly “removed.” However, there are serious inconsistencies and logical
gaps if the Secretary’s interpretation is adopted.
Let’s suppose Respondent moved CM234, CM235, and FB605 off the old 2B panel — an
additional 8,600 feet from the former loading point. According to the Secretary’s interpretation,
this would have constituted proper “removal” of the mechanized mining equipment. Let’s
suppose Respondent then dismantled the lifeline, powered off the two-way communication at the
refuge alternative, shut down tracking, and completed the air change. The old 2B panel would
44

I note that Belford did not issue any citations on September 6 or 7. This is consistent
with the notion that neither he nor his supervisors at District 8 were certain about enforcement of
the escapeway provision, as the Secretary’s briefs would have me believe. It appears more likely
that Belford was not sure whether the old 2B travelway was still an escapeway, which is
consistent with the testimony that neither Belford nor Combs was sure on September 6 when
they looked at the regulatory language for 75.380(b). It is also consistent with Belford’s
testimony that he had never been trained specifically on the meaning of “removal” nor had he
ever seen this type of situation before.

41 FMSHRC Page 438

no longer be in active working status. Now let’s suppose Respondent then immediately moved
the three pieces of equipment back onto the old 2B panel and parked them in crosscuts 125, 126,
and 127 — the precise locations Inspector Belford found them in on September 6, 2016. It
appears this would not be a violation. It is not readily apparent to me how this (non-violative)
situation is any safer than what Respondent actually did. In both cases, the three pieces of
mining equipment ultimately ended up in crosscuts 125, 126, and 127. Yet, the Secretary claims
one fact pattern is dangerous insofar as it requires the protections of an escapeway; the other —
where mining equipment was moved an additional 17,000 feet — would not. To accept this
outcome would exalt form over substance. This inconsistent outcome cannot be what MSHA
envisioned.
Similarly, the Secretary largely avoided addressing the Respondent’s legitimate
counterargument that escapeways are not required every time mechanized mining equipment is
being moved or transported in a mine. Respondent’s witnesses and Inspector Belford testified
that escapeways are not required when mechanized mining equipment is moved back into a
worked-out, inactive portion to make repairs. (Tr.97:5–98:19; 162:2–19; 202:14–203:21;
280:24–283:12) For example, mechanized mining equipment might be moved into a return air
course to do cleaning or roof bolting. (Tr.204:7–17; 281:6–25; 282:1–9; 283:3–12) No
escapeway would be required in this situation. (Tr.204:18–20; 282:10–12) Additionally,
although unusual, it is not unheard of to use a continuous miner for cleanup work. (Tr.203:22–
204:3; 282:13–283:2; contra Tr.103:12–20) No escapeway would be required in this situation
either. (Tr.204:4–6; 282:21–23) All of the hazards that would exist in moving CM234, CM235,
and FB605 from crosscuts 125, 126, and 127 off the panel would exist in these
cleaning/maintenance scenarios.
The Secretary’s response to this compelling counterargument can be found hidden in a
single footnote.45 The Secretary states that the regulations contemplate protection during
equipment removal associated with the end of a production section as a distinct phase of mining;
thus, Respondent’s counterexamples are not related to the phase of mining contemplated by the
regulations. (Sec’y Br. 26 n.10) The Secretary’s argument conflates the “distinct phase of
mining” the preambles warn about, i.e., the decommissioning of equipment that is occurring at
the former working section inby the loading point, with the transportation of mechanized mining
equipment outby the loading point. This side-step by the Secretary leads to a distinction without
a difference. To accept the Secretary’s argument here would once again place form over
substance.
It makes logical, practical sense that escapeways and their related requirements are not
required in every scenario when mechanized mining equipment is being moved. As Kimbel and
Barras both testified, mines have a limited amount of air. (Tr.111:5–8; 276:6–7) Working
45

The Secretary’s decision to address one of Respondent’s most compelling arguments in
a footnote was ill advised. See CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (“A footnote
is no place to make a substantive legal argument on appeal; hiding an argument there and then
articulating it in only a conclusory fashion results in forfeiture.”); see also Hutchins v. District of
Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999) (a court “need not consider cursory arguments
made only in a footnote”).

41 FMSHRC Page 439

sections are prioritized since dangerous levels of methane and dust exist at the working faces and
need to be diluted. (Tr.111:7–17; 276:12–15) Worked-out locations, by contrast, do not require
as much air to maintain safe conditions. (Tr.111:7–17; 276:1–7) If every maintenance situation
in old, worked-out panels that involved mechanized mining equipment required escapeways to
be installed — along with air changes — it could compromise the mine’s ability to maximize its
ventilation resources for the safety of miners in active areas. Consistent with this logic and
history, Peabody planned for the unit 2 move by doing an engineering review to determine what
changes were needed to redirect the ventilation airflow away from what had been an active
mining unit in the old 2B panel so that the available airflow could be sent to higher priority areas
of the mine. (Tr.168:3–11; 274:5–276:7)
The Secretary’s argument — conceived for purposes of this litigation — is so narrow that
it leads to an absurd result. The absurdity arises from an awareness of the need during normal
mining operations to move mining equipment from one place to another in inactive, worked-out
panels without having to attend to the escapeway requirement. The Secretary has provided no
rational explanation to account for the inconsistent outcomes that emerge from his interpretation
of the escapeway regulation.
3.

The Secretary’s Interpretation Leads to Absurd Results when it is Applied to
Other Regulations in Subpart D

As discussed numerous times above, the Secretary argues that the applicable “area” that
mechanized mining equipment must be removed from was the old 2B panel. As shown below,
applying the Secretary’s interpretation to related regulations in Subpart D leads to absurd
results.46
Section 75.313(a), which involves procedures when there is a main mine fan stoppage
while persons are underground, states:
If a main mine fan stops while anyone is underground and the
ventilating quantity provided by the fan is not maintained by a
back-up fan system — [. . .] (3) Everyone shall be withdrawn from
the working sections and areas where mechanized mining
equipment is being installed or removed.
30 C.F.R. § 75.313(a) (emphasis added). Substituting in the Secretary’s interpretation for the
subject area during removal, we can understand the regulation to read, “if a main mine fan stops
while anyone is underground and the ventilating quantity provided by the fan is not maintained
by a back-up fan system — [. . .] Everyone shall be withdrawn from the working sections and
46

I anticipate the Secretary might protest that “area where mechanized mining equipment
is being installed or removed” means the old 2B panel in the escapeway provision but, in other
ventilation provisions, it means something else entirely. Justice William O. Douglas cautioned
of such fickle judgment in Zschernig v. Miller when he cited to Humpty Dumpty’s
pronouncement to Alice in Through the Looking-Glass: “When I use a word [. . .], it means just
what I choose it to mean — neither more nor less.” 389 U.S. 429, 435 n.6 (1968).

41 FMSHRC Page 440

old 2B panel [during removal].” Thus, miners at the working section must be withdrawn from
the working section — in other words outby the loading point; miners during the equipment
removal phase, which is no more dangerous than the active mining phase, would instead have to
be withdrawn from the panel. In the case of Wildcat Hills’ old 2B panel, this would account for
a difference of 8,600 feet.
Section 75.351(f), which specifies the required locations for atmospheric monitoring
sensors, instructs that in order to monitor the primary escapeway, “carbon monoxide or smoke
sensors must be located in the primary escapeway within 500 feet of the working section and
areas where mechanized mining equipment is being installed or removed. In addition, another
sensor must be located within 500 feet inby the beginning of the panel.” 30 C.F.R. § 75.351(f)
(emphasis added). Rewritten with the Secretary’s interpretation substituted in, the regulation
would mandate that, during removal, sensors be located in the primary escapeway within 500
feet of the old 2B panel. This would result in a sensor being placed somewhere in the 2A Sub
Main, which is absurd as it would not properly detect problems near the former working section,
where the risk is greatest. I also note that the regulation mandates an additional sensor 500 feet
inby at the beginning on the panel. Had MSHA intended for the “area” during equipment
installation or removal to also mean “the panel,” they could/would have said so.
The escapeway maps provision would also be nonsensical if the Secretary’s current
interpretation of “area” were adopted.47 The escapeway map provision states:
(a) Content and accessibility. An escapeway map shall show the
designated escapeways from the working sections or the miners’
work stations to the surface or the exits at the bottom of the shaft
or slope, refuge alternatives, and SCSR storage locations. The
escapeway map shall be posted or readily accessible for all
miners—
(1) In each working section;
(2) In each area where mechanized mining equipment is being
installed or removed;
(3) At the refuge alternative; and
(4) At a surface location of the mine where miners
congregate, such as at the mine bulletin board, bathhouse,
or waiting room.
30 C.F.R. § 75.1505(a) (emphasis added). Reworded with the Secretary’s interpretation in mind,
the escapeway map provision would read: “The escapeway map shall be posted or readily
47

For the 1992 final rule, the escapeway maps regulation was moved to section 75.383.
57 Fed. Reg. at 20,907. On December 8, 2006, section 75.383 was split up and removed: the old
subsection (a) was transferred to create a new section, section 75.1505. 71 Fed. Reg. 71,430-01,
71,437 (Dec. 8, 2006). The section was amended in 2008. 73 Fed. Reg. 80,656-01, 80,698 (Dec.
31, 2008). The new section 75.1505(a) shares the same general meaning as the old section
75.383, but it is worded slightly differently and adds a few additional requirements. Compare 30
C.F.R. § 75.383 (1992) with 30 C.F.R. § 75.1505(a) (2008).

41 FMSHRC Page 441

accessible for all miners [. . .] (2) in the old 2B panel [during removal] [. . .] .” If this were the
case, an operator could comply with the regulation by placing an escapeway map at the former
working face, at the beginning of the old 2B panel, or anywhere in the 8,900 feet between the
two. Such a result would be contrary to common sense and the safety-focused purpose of the
regulation as miners might not be able to reliably check the escapeway map in the event of an
emergency. It is absurd and cannot be what MSHA and its drafters intended.
Section 75.323, which involves procedures when methane levels are excessive, instructs
that various tests for methane concentrations be made at least 12 inches from the roof, face, ribs,
and floor. 30 C.F.R. § 75.323(a). Subsections (b) and (c) describe the procedures when methane
reaches 1.0% and 1.5%, respectively, in “a working place or an intake air course [. . .] or in an
area where mechanized mining equipment is being installed or removed [. . .] .” 30 C.F.R.
§§ 75.323(b)(1), (2). Substituting in the Secretary’s interpretation for the subject area during
removal would mean that methane measurements could be taken practically anywhere in the old
2b panel rather than discrete areas notorious for methane accumulations. The results of this
could be catastrophic.
Section 75.332(a)(1), which involves working sections and working places, requires that
“[e]ach working section and each area where mechanized mining equipment is being installed or
removed” be ventilated by a separate split of intake air directed by overcasts, undercasts, or other
permanent ventilation controls.” 30 C.F.R. § 75.332(a)(1). Substituting in the Secretary’s
interpretation, the regulation would require that, during removal, the entire old 2B panel would
need to be ventilated by a separate split of intake air directed by overcasts, undercasts, or other
permanent ventilation controls. The infeasibility of this undertaking exposes the absurdity of the
Secretary’s position.
I cannot credit the Secretary’s rationale for his interpretation. In contrast, Respondent’s
view is more defensible, coherent, and supplemented with credible testimony regarding the
historical application of enforcement. As the Secretary’s interpretation of the escapeway
standard is unreasonable, not fairly considered, and results in absurd outcomes, deference to the
Secretary is not appropriate.
VII. PARTIAL SETTLEMENT FOR CITATION NO. 9038387
On April 9, 2018, and prior to the hearing, the Secretary filed a motion to approve partial
settlement. A reduction in the penalty for Citation No. 9038387 from $918.00 to $213.00 was
proposed.
The Secretary also requested that Citation No. 9038387 be modified to reduce the gravity
from “Reasonably Likely” to “Unlikely” and to remove the “S&S” designation. In support of
this, Respondent would have presented evidence at hearing to show the cable at issue was a
shielded cable and power conductors are individually shielded. If cable damage were serious
enough to cut internal conductors, Respondent argued the most likely scenario would be a
ground fault. Ground fault currents are limited by the grounding resistor. If a phase-to-phase
short circuit occurred, the system was designed such that the minimum short circuit current
available was well in excess of the setting cited. Respondent stated an analysis was conducted

41 FMSHRC Page 442

using the MSHA short circuit calculation program, and it was determined that the maximum
available current was 6,005 amps; the minimum short circuit current available was 4,541 amps.
Accordingly, Respondent argued that it was unlikely the breaker would not trip in the event of a
short circuit. In consideration of the Respondent’s arguments, the Secretary agreed to reduce the
gravity from “Reasonably Likely” to “Unlikely,” to remove the “S&S” designation, and to
accept a reduced penalty.
I have considered the representations and documentation submitted in this case for
Citation No. 9038387, and I conclude that the proffered partial settlement is appropriate under
the criteria set forth in section 110(i) of the Act.
VIII. SUMMARY AND ORDER
The Secretary has failed to prove by a preponderance of the evidence that an escapeway
was required in the old travelway on the old 2B panel during Inspector Belford’s E01 inspection
on September 6–8, 2016. As the three citations issued on September 8, 2016, were predicated on
the existence of an escapeway, they must be vacated.
Accordingly, it is ORDERED that Citation Nos. 9039355, 9039356, and 9039357 are
hereby VACATED.
It is further ORDERED that Citation No. 9038387 be MODIFIED to reduce the
likelihood from “Reasonably Likely” to “Unlikely” and to remove the “S&S” designation.
It is further ORDERED that the operator pay a penalty of $213.00 within 40 days of this
decision and order.48

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

48

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.

41 FMSHRC Page 443

Distribution:
R. Jason Patterson, Esq.
Office of the Solicitor
U.S. Department of Labor
230 S Dearborn St, Ste 844
Chicago, IL 60604–1779
Arthur M. Wolfson, Esq.
Fisher & Phillips LLP
One Oxford Center
301 Grant St, Ste 4300
Pittsburgh, PA 15219–6405

41 FMSHRC Page 444

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

July 11, 2019
SECRETARY OF LABOR,
U.S. DEPARTMENT OF LABOR on
behalf of TYLER HERRERA,
Complainant,

DISCRIMININATION PROCEEDING
Docket No. WEST 2019-0364-DM
MSHA Case No.: RM-MD-2019-11

v.
FIELD LINING SYSTEMS, INC.,
Respondent.

Mine: Freeport-McMoRan Safford Inc
Mine ID: 02-03131

DECISION AND ORDER
Before: Judge Rae
The captioned matter is before me based on an Application for Temporary Reinstatement
(the “Application”) filed by the Secretary of Labor (the “Secretary”) on behalf of Tyler Herrera
against Field Lining Systems, Inc. (“Respondent”), pursuant to section 105(c)(2) of the Federal
Mine Safety and Health Act of 1977 (the “Act”), 30 U.S.C. § 815(c)(2). Under section 105(c)(2),
“upon the application of the Secretary” the Commission “shall order the immediate reinstatement
of the miner pending final order on the complaint” if the complaint “was not frivolously
brought.” 30 U.S.C. § 815(c)(2). The Secretary determined that Herrera’s complaint was not
frivolously brought and accordingly filed the Application with the Commission on June 14,
2019. Following a conference call held on June 17, 2019, Respondent indicated that they were
not requesting a hearing and asked the parties be allowed to submit briefs in support of or against
the Application. The parties’ briefs were submitted on July 8, 2019.
For the reasons discussed below, I grant the Application and order Complainant’s
temporary reinstatement.
I. LEGAL PRINCIPLES
Section 105(c) of the Act prohibits mine operators from discriminating against miners for
engaging in any right protected under the Act. 30 U.S.C. § 815(c). “[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.” 30 U.S.C. § 815(c)(2). A temporary reinstatement proceeding differs
from a hearing on the merits of a discrimination claim in that addressing an application for
temporary reinstatement is limited narrowly to the question of whether the miner’s

41 FMSHRC Page 445

discrimination complaint “was not frivolously brought” by Rule 45(d).1 29 C.F.R. § 2700.45(d);
Sec’y of Labor on behalf of Deck v. FTS Int’l Proppants, LLC, 34 FMSHRC 2388, 2390 (Sept.
2012) (“FTS Int'l Proppants”); Sec’y of Labor on behalf of Price v. Jim Walter Res., Inc., 9
FMSHRC 1305, 1306 (Aug. 1987), aff’d sub nom. Jim Walter Res., Inc. v. FMSHRC, 920 F.2d
738 (11th Cir. 1990) (“Jim Walter Res.”). A discrimination complaint satisfies the “not
frivolously brought” standard of section 105(c)(2) of the Act when there is “reasonable cause to
believe” that the “complaint appears to have merit.” Jim Walter Res., 920 F.2d at747 (citing S.
Rep. No. 95-181 at 36).
In view of the narrow scope of temporary reinstatement proceedings, “the Commission
has recognized, ‘[i]t [is] not the judge’s duty, nor is it the Commission’s, to resolve the conflict
in testimony at this preliminary state of the proceedings.’” FTS Int’l Proppants, 34 FMSHRC at
2390 (quoting Sec’y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719
(July 1999)). Although the Secretary need not present a prima facie case of discrimination to
prevail at this stage of the proceeding, reviewing the elements of a discrimination claim aides in
determining whether the submitted evidence satisfies the “not frivolously brought” standard. To
demonstrate a prima facie case of discrimination under section 105(c) of the Mine Act, the
Secretary must establish that the complainant engaged in an activity protected by the Mine Act,
that the complainant was subjected to an adverse action, and that the adverse action was
motivated, at least in part, by the complainant’s protected activity. See Sec’y of Labor on behalf
of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 (Oct. 1980), rev’d on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec’y of
Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981)
(citations omitted).
II. BACKGROUND AND APPLICATION
Since March 20, 2019, Herrera worked for Respondent as a laborer. Application at 2;
Sec’y’s Memo at 2; Herrera Decl. at 1. During the night shift on or about April 19, 2019, Herrera
allegedly observed a fork lift operator moving a light plant with a forklift. Application, Ex. A at
2; Sec’y’s Memo at 2; Herrera Decl. at 1. Herrera allegedly heard a crash and saw that the light
1

Specifically, Rule 45(d) provides:
The scope of a hearing on an application for temporary
reinstatement is limited to a determination as to whether the
miner’s complaint was frivolously brought. The burden of proof
shall be upon the Secretary to establish that the complaint was not
frivolously brought. In support of his application for temporary
reinstatement, the Secretary may limit his presentation to the
testimony of the complainant. The respondent shall have an
opportunity to cross-examine any witnesses called by the Secretary
and may present testimony and documentary evidence in support
of its position that the complaint was frivolously brought.

29 C.F.R. § 2700.45(d)

41 FMSHRC Page 446

plant had fallen off the forklift, damaging the light plant’s outriggers and bending one of the
wheels. Application, Ex. A at 1-2; Sec’y’s Memo at 2; Herrera Decl. at 1. Herrera then allegedly
saw a supervisor place the light plant against a berm. Application, Ex. A, 1-2; Sec’y Memo at 2.
Herrera believed this was done to give the appearance the light plant was still functioning
properly. Application, Ex. A, 1-2; Sec’y Memo at 2. Herrera alleges the supervisor placed the
damaged light plant close to portable restrooms. Application, Ex. A, 1-2. Herrera allegedly felt
the damaged light was unsafe due to its instability and potential for collapse. Id.
Herrera allegedly shared his concerns with his coworkers and urged them to reach out to
MSHA. Sec’y Memo at 2. On April 20, 2019, Herrera called the MSHA hotline and reported the
damaged light plant. Sec’y Memo at 2; Herrera Decl. at 5. Two days later, on April 22, 2019,
Josh Johnson, the Safety Manager for Respondent, had allegedly called Herrera and asked if he
had made a complaint to MSHA. Sec’y Memo at 2. Herrera conceded that he did call MSHA
with a safety concern. Sec’y Memo at 2. Two days after the conversation with Josh Johnson,
Herrera was terminated on April 24, 2019. Application, Ex. A at 1-2; Sec’y Memo at 2; Herrera
Decl. at 8.
Following his termination, Herrera filed his 105(c) discrimination complaint on May 13,
2019. Application at 2; Sec’y Memo at 2. MSHA Special Investigator Merle Nash then
investigated the complaint and determined that Herrera had engaged in two episodes of protected
activity. Application, Ex. B at 2. Nash determined that the first protected activity was Herrera’s
alerting the mine operator of his safety concern regarding the damaged light plant on April 20,
2019. Id. Nash determined that the second protected activity was Herrera’s calling MSHA to
report a hazard complaint that same day. Id. Based on the information available to Nash as a
result of the investigation, he concluded that Herrera’s April 24, 2019, termination (the adverse
action) was motivated, at least in part, because of the protected activity discussed above.
Application at 2. Accordingly, Nash determined that Herrera’s discrimination complaint was not
frivolously brought. Id.
In opposition to the Application, Respondent asserts that Herrera’s termination was not
unique, and Herrera was terminated solely for violating the company’s attendance policy. While
Respondent’s assertion regarding Herrera’s non-compliance with the company attendance policy
may constitute an affirmative defense to the underlying discrimination complaint, such a defense
is not properly before me during a temporary reinstatement proceeding.
Therefore, given Herrera’s alleged engagement in protected activities and the close nexus
in time to his termination, I agree at this preliminary stage of the proceeding that his complaint is
not frivolously brought.

41 FMSHRC Page 447

III. ORDER
For the reasons set forth above, Field Lining Systems, Inc., is ORDERED to
immediately reinstate Tyler Herrera to the position he held on April 20, 2019, with restoration of
pay, allowances, and benefits retroactive to the date of discharge.2
Mr. Herrera’s reinstatement is not open-ended. It will end upon a final order on the
underlying discrimination complaint. 30 U.S.C. § 815(c)(2). Therefore, the Secretary must
promptly determine whether or not he will file a complaint with the Commission under section
105(c)(2) of the Act and so advise the Respondent. Otherwise, I shall entertain a motion to
terminate this Order.3

/s/ Priscilla M. Rae
Priscilla Rae
Administrative Law Judge
Distribution:
Veronica Melendez, Esq., U.S. Department of Labor, Office of the Solicitor, 90 Seventh Street,
Suite 3-700, San Francisco, CA 94103
Kristy Lagumas, Field Lining Systems, Inc., 439 S. 3rd Ave., Avondale, AZ 85323
Tyler Herrera, 900 East Hollywood Lot #213, Safford, AZ 85546

2

Herrera’s regular pay is $910.00 per week as calculated at a rate of $14.00 per hour for
50 hours and overtime pay rate of $21.00 for 10 hours each week. Application, Ex. A at 1.
3

The Court does not have the authority to, sua sponte, grant economic reinstatement. See
e.g., Sec’y of Labor on behalf of Terry v. Prospect Mining & Development Co., LLC, 41
FMSHRC 142 (Feb. 2019) (ALJ). However, should the parties agree to such, a motion should be
submitted forthwith.

41 FMSHRC Page 448

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

July 19, 2019
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 2018-0239
A.C. No. 01-00028-471366

v.

VULCAN CONSTRUCTION
MATERIALS, LLC,
Respondent

Mine: Fort Payne Quarry
DECISION AND ORDER

Appearances: Thomas J. O’Donnell, CLR, U.S. Department of Labor, MSHA, Birmingham,
Alabama, for Petitioner
Leslie P. Brody, Office of the Solicitor, U.S. Department of Labor, Atlanta,
Georgia, for Petitioner
Misty Hillis, Vulcan Construction Materials LLC, Birmingham, Alabama, for
Respondent
Before:

Judge Moran

This matter, brought under the Federal Mine Safety and Health Act of 1977 (“Mine
Act”), 30 U.S.C. § 815(d), is before the Court upon a petition for assessment of a civil penalty. It
involves whether the safety and health standard at 30 C.F.R. § 56.12025, titled, “Grounding
circuit enclosures,” which states in relevant part that “All metal enclosing or encasing
electrical circuits shall be grounded or provided with equivalent protection….”1 applies to a
portable space heater located in an enclosed, elevated, surface mine operation’s control room
where that heater was equipped only with a two-prong plug. The Secretary of Labor
(“Secretary”) contends that the heater was neither grounded nor provided with equivalent
protection. A hearing was held on March 21, 2019 in Birmingham, Alabama. For the reasons
which follow, albeit with some misgivings, the Court concludes that the standard does apply in
this instance.

1

The standard also provides that “[t]his requirement does not apply to battery-operated
equipment.” Battery-operated equipment is not involved in this matter.

41 FMSHRC Page 449

Findings of Fact
Vulcan Construction Materials (“Respondent”) is a large mining operation, with about
300 quarries nationwide. Tr. 7. The single citation involved was assessed a proposed civil
penalty of $118.00 but the dispute is decidedly not about the proposed penalty. Rather, it is about
the standard’s applicability in this situation.
Secretary’s Testimony
Testimony began with Inspector Robert Lance White, the inspector who issued the
citation. He has been an MSHA inspector for about 11 years. Over his years of employment he
has had safety responsibilities but regarding electrical, his experience has been limited. Tr. 19.
With MSHA, he had limited training involving electricity, and that was 11 years ago. White is
not an electrician, nor does he possess any degrees involving electrical work. Tr. 21. Apart from
his MSHA training, his knowledge about electricity has been acquired through self-training.
Tr. 22. The citation issued by White, Ex. C-1, was issued on July 16, 2018, and his notes related
to that are reflected in Ex. C-2. Tr. 24, 29. The citation, under condition or practice states,
“[m]etal encasing electrical circuit was not grounded on a personal heater in the secondary
control room.” Tr. 31. The inspector added that he “observed that the heater had a metallic
casing, and there was no ground wire or ground prong, which is required by the standard [at
least] as [he has] been trained and experienced it.” Tr. 31.
The Court sought clarification of the condition observed by the inspector. The inspector
agreed that he came upon a personal heater which was plugged into a wall socket. Tr. 31.
The inspector found that the plug had two prongs, and no ground prong. Tr. 32. Photographs of
the heater were introduced. Gov. Ex. C-3 and C-4. Tr. 33. White described the secondary control
room where he observed the heater as a metallic structure that's raised up for viewing reasons so
that one can view the operation of the plant. A set of stairs provides access to the elevated
structure. There are multiple windows in the structure so that they can observe their process and
control and most things can be turned on and off from that structure. Therefore, the Court
concludes that it is in effect a control room tower. It is a relatively small structure, being
somewhere around eight foot by eight foot or perhaps only eight foot by six feet. The structure is
enclosed. Tr. 34. Inside the control room are chairs, a small refrigerator, control panels, switches
and the heater, which is the subject of this matter. Id.
In his citation, the inspector wrote, “miners work in the control room daily when the plant
is in operation. Contacting the metal surface when the metal is energized would likely result in
strains, sprains, or broken bones when falling due to recoiling from the shock.” Tr. 35. Electrical
shock is the hazard White identified, and he expressed that multiple injuries could result from
receiving a shock, including most probably “[b]urns probably from electrical shock and tissue
damage, depending on the route taken of the electrical current through the body.”
Tr. 36.
The Court asked the inspector to explain what he meant by “metal encasing electrical
circuits.” The inspector responded that “[i]n this case it was the metallic outside of the
heater. So all the parts you would touch normally if you were moving the heater or

41 FMSHRC Page 450

just incidental contact would be metallic, which is an electrical conductor.” Tr. 37.
Seeking clarification, the inspector agreed that the heater itself is the metal encasing electrical
circuit. Tr. 37. The inspector stated that the heater had not been modified in any way.
Thus, except for a little dirt, it was in its original condition. Tr. 38. Although it was plugged in
when he observed it, it was not running. Id. The heater has an on/off switch but the inspector did
not test it to see if it was operational. Tr. 39. He had no basis to conclude that there was anything
wrong, anything malfunctioning, anything defective with that heater at all. Tr. 40.
His only issue was the device not being grounded. Tr. 40-41.
Explaining his concern further, the inspector opined that his belief was that if one were to
touch the metal casing he would receive a shock. The hazard would arise “[i]f there is damage on
the inside where that metal casing can become energized because of damage wear and tear,
anything like that, then the metal casing would be energized and you would receive a shock from
touching it.” Tr. 39. When a device is grounded, “if there's some damage internally in the heater
to where maybe the electrical circuits or even the heating element has broken and is touching the
metallic part or the internal electrical connections.” Tr. 41. In such a situation, the metallic part
would still be energized but if there is grounding, the current would be drawn through the ground
wire and kick a breaker so that it would not remain energized. Id. Without a ground wire, if the
metal casing became electrified, the “only path to ground would be through the body of the
miner when they contacted it.”2 Tr. 42.
2

An attendant risk is called “hand-to-hand pathway,” which the inspector described as
where the current
passes through the chest cavity, the heart, lungs. It can result in heart stoppage or
thoracic […] lung function stoppage. […] hand-to-hand is […] dangerous [as]
[…] it’s doing tissue damage as it goes, including electrical tissue damage to the
heart. The heart has its own electrical system, and this current messes that up.
Tr. 42-43. However, more than one action would apparently have to occur, as the inspector
offered the example of “[t]ouching this heater and having the other hand on this metallic
refrigerator which is sitting on the metal floor and all that could be a path for hand-to-hand.
It depends on circumstances, how the miner would touch it.” Tr. 43. Another risk was
described as “let-go current.” The inspector advised that
[l]et-go current is a common term for a particular amount of current that keeps a
person from turning loose if they grab the heater. It's a muscle contraction, and
they could not turn loose. So this increases the total amount of current because
current is dependent upon time. So you're exposed to more current if you can't let
go.
Tr. 43-44. For this 120 volt heater, let-go current would not be a certain event as it would depend
“upon the conductivity of the person's skin, which can be affected differently by different
(continued…)

41 FMSHRC Page 451

The inspector marked the injury or illness for this alleged violation as “unlikely;” he
stated this was based on the warm temperatures that day – 87 degrees – and therefore a room
heater would be unnecessary. Tr. 46-47. Typically, there would be just one person in the control
room. Tr. 47. Photo Ex. C-3 depicts the heater as the inspector observed it. It was located in front
of a small refrigerator but the inspector did not determine if it was operating. Tr. 48.
The inspector believed that the heater would need to be moved to open the refrigerator door.
Tr. 49. Responding to his marking “lost workdays or restricted duty” for the alleged violation,
the inspector described the hazard as electrical shock. A number of injuries can result from a
shock.3 The citation was terminated the same day as its issuance by removing the heater from the
premises. Tr. 51.
Ex. C-5 is a picture of the side of the heater, which reflects the model number, the
voltage, amperage, watts, 60 hertz, which is typical AC, alternating current, electricity provided
in the U.S., and the heater’s serial number, L209017547. Tr. 53-54. UL 1278 also appears in the
photo exhibit. White stated that he believed the UL number refers to heaters and its presence
means that the heater was tested against the Underwriters Laboratories safety standards.
Tr. 54-55. “Intertek ETL Listed” also appears in the photo, but White was not familiar with that
reference. Tr. 55. White was then asked about the National Electrical Code or “NEC.”
He
informed that NEC is a “code for manufacturing and constructing and building different
electrical devices and meeting the code.” Tr. 55-56. White did not consider either the NEC or the
UL standard in deciding that there was a violation, since his training and experience was that
equivalent protection, would be a ground fault circuit interrupter, better known as a “GFCI,” or
with double insulation. White saw no indication of either. He did ask Vulcan foreman Jeff Dean,
who was the employee who accompanied him during the inspection, to see the breakers, but they
saw no indication of any GFCI, nor any “square inside a square” symbol indicating there was
double insulation. Tr. 56. Dean agreed with White that the heater casing was metallic. Tr. 57-58.
White reiterated that GFCI is considered equivalent protection in lieu of a ground system or a
ground wire. Tr. 58. As he indicated earlier in his testimony, he went down from the control
room to the MCC, or motor control center, below that room but, while they found a breaker, they
did not see a GFCI. Tr. 59. During his inspection, White found a second heater in the primary

2

(…continued)
individuals. The amount of perspiration, anything wet in the area, water spilled on the
refrigerator or the outside of the heater itself, a variety of factors.” Tr. 44-45. Thus, the inspector
could not say for certain if the “let-go” phenomena would apply in this instance.
Tr. 45-46. In fact, he conceded that while it could occur for a 120 volt device, it’s more common
with higher voltage devices. Tr. 46. 120 volts is considered lesser voltage. Id.
3

The inspector elaborated that the “response to the shock in the human body depends
upon, […] a variety of circumstances. Moisture in the skin. It can be electrical burns. It can be
tissue damage throughout the body along the path. It can be muscle contractions to where people
do fall down or whatever [and in this situation there was] [...] limited space.” Tr. 49. Inspectors
are trained to focus on the more likely results.

41 FMSHRC Page 452

control room with the same issue.4 While he noted it, he did not write a separate citation for that
heater. Tr. 60. Both heaters were removed from the mine property. Tr. 61.
The Secretary introduced documents which had been provided by the Respondent during
discovery. The government’s purpose behind their introduction was to show the conditions in the
control room in order to demonstrate the hazards and gravity associated with the condition. Tr.
64-65. Respondent pointed out that the photos were taken after the citation was issued and
involve a different heater. Tr.65-66. See also Gov. Exs. C-6, C-7, and C-8. White, referring to
the photos, identified them as from the same control room as the one where he found the
allegedly defective heater. Tr. 67. White believed they were useful for the Court to consider, as
the photos show the general layout of the control room and consequently may show the
likelihood of incidental contact. Tr. 68. White also commented that the photo shows “the
metallic floor plate, which is a conductor, and a metallic desk […] and the controls themselves
being metallic.” Tr. 69.
The inspector explained that the term “double insulation” means “an extra layer of
nonconductive material, frequently plastic, around the electrical contacts of the circuit so that if
something becomes loose or damaged, it is more likely to hit a nonconductive surface rather than
a conductive metallic surface.” Tr. 70. If present, he stated that such double insulation can be
considered to be equivalent protection. Tr. 70-71. Its presence is indicated on the device itself,
either by simply stating that it is double insulated or with the square within a square symbol,
which looks like a “D” within a square.5
Apart from MSHA’s requirements under the standard, the inspector agreed that the
manufacturer indicated that the heater was in compliance with the standards listed on the heater’s
label, such as UL Standard 1278. This included the inspector’s admission that the heater was
originally made as a two-prong outlet device. Tr. 78-79. He also agreed that there was nothing
inherently unsafe about the heater. Tr. 79. The inspector offered that the MSHA requirements
were more strenuous because
the mining environment's tougher [than] […] the heater in your grandma's house
on a nice wooden floor. The heater in a control room where people with wet,
muddy boots may knock it around, where you have a metallic floor, and just even
the atmosphere, the mining environment, that floor plate that you see there, I
believe that's that particular color because of dirt. What I'm saying is you drag
stuff in. You expose the heater to more stringent situations. And I believe that's
why the mine standard is a requirement above and beyond any UL standard or
anything like that.
Tr. 79-80.

4

The next day, he found a third heater, in the bathroom of the maintenance shop, but that
heater did have a ground wire or ground system.
5

Gov. Ex. C-9, Respondent’s violation history was admitted. Tr. 73.

41 FMSHRC Page 453

On cross-examination, the inspector again agreed that he did not see any obvious visual
damage. However, he raised the possibility of internal damage, though he admitted that, as he
did not open it, that was pure speculation by him. Tr. 81. He also agreed that he had no basis to
believe that the heater case would be energized if it were switched on. Tr. 84. The inspector did
not know if the inner workings of the heater were constructed so that there would be no way for
the case to become energized. Tr. 84-85. He could not state that the entire case was metallic, but
maintained that some parts of it were metal. Tr. 86. Similarly, he could not recall if the heater’s
handles were plastic, but added that, even if that were so, incidental contact with the metal parts
of the heater could occur.6 Id. The inspector did not know if the operating controls were metal or
plastic. Tr. 87. Shown Ex. C-6, the inspector stated that there appeared to be a mat, possibly a
rubber mat, beneath the control room chair. Tr. 91. However, he added that he did not see that
the mat extended to the heater area. Tr. 92.
Shown Ex. C-4, the inspector identified the plug as a two-prong type. He agreed that one
of the two prongs was wider than the other. Tr. 96. The inspector stated that the difference in the
prong sizes involved polarity but he was unable to elaborate about that, other than remarking that
polarity is positive and negative, but he did not believe that came into play for alternating
current. He admitted that he did not know what polarity meant. Tr. 97. His view was that such
two prong plugs were a hazard only where a device is metal-encased. Id. He reiterated his view
that the only “equivalent protection” acceptable under the standard would be the GFCI, or double
insulation.” Tr. 97. The inspector was also unaware of any MSHA policy manual guidance on
the subject but he would not use Underwriter Laboratories for guidance on this issue, as it was
his understanding that such “UL” standards do not go above or beyond MSHA standards.
Tr. 101.
Respondent’s Testimony
The Respondent’s defense began with the testimony of Misty Hillis, Vulcan’s Safety and
Health Manager for their Southern and Gulf Coast division. Tr.111-112. She has been in
Vulcan’s employ for 19 years, all of it in connection with safety and health matters. Tr. 113.
Vulcan provides training regarding electrical hazards and hazard awareness for its miners and its
electricians have in-depth training. Tr. 114. Their miners are trained to be alert to things such as
damaged electrical cords, missing junction boxes, and missing knockouts. Tr. 115.
With regard to the control room where the cited heater was located, Hillis described it as
“an office kind of room” as it has an office-type desk and chair, from which location they
monitor the plant, having a bird’s eye view to watch the conveyors and screens. Tr. 116.
6

The inspector could not state how many amps represent the threshold for release
current. Asked if it is a current at any voltage, or whether it is a combination of voltage and
current, or whether it is only that voltage and resistance work together to create a certain current,
the inspector responded that his understanding was that it’s only about current, which would be
affected by the amount of voltage, analogizing the voltage as the push or pressure involved, such
as in a water system and the current being the amount of flow, such as gallons per minute, to
continue the water analogy. Tr. 87. The particular conductivity can be affected by perspiration or
if one were in contact with water, such as with a wet floor, or with wet, muddy boots, for
example. Tr. 88.

41 FMSHRC Page 454

Those in the control room wear safety boots with rubber soles. The control room, which is
indoors, has no sink, toilet or other water source sufficient to even partially immerse the heater.
Tr. 117. Generally, there is only one person in the room. Id. In terms of the items in Vulcan’s
control rooms Hillis stated that generally one would find heaters, fans, small dorm-style
refrigerators, a radio and a clock, “things that you would find in a normal office.” Tr. 118.
These typical arrangements motivated Vulcan to challenge this citation because it has “all those
different type of two-prong appliance, office-type things in those rooms, in most of our control
rooms throughout the division.” Tr. 118. In her years with Vulcan, there has never been a control
room accident involving those devices. Tr. 119. Regarding the heater, she informed that the
handles are plastic as are the control knobs including the on/off switch. Id. As for the minifridge, with the exception of a metallic hinge, the mini-fridge is not metal either. Tr. 119-120.
Although Vulcan has received citations for this standard, those were quite different in nature,
such as for a broken ground pin. Vulcan believes that, in this instance, the standard was
misapplied. In that regard, it believes that an ALJ decision involving the same issue, a heater in a
shop, but for a coal case, is applicable to this situation. There, a mine was cited for the two-prong
plug issue. Tr. 120-121. Ex. V-2,7 San Juan Coal Co., 13 FMSHRC 1688 (Oct. 1991)(ALJ)(“San
Juan”).
Both sides agreed that there is no program policy manual or other instruction from
MSHA offering guidance or further explanation for this standard. Tr. 128. Vulcan has never
interpreted the standard and its reference to “metal encasing circuits” to apply to an appliance in
a control room. Tr. 129. At least for Ms. Hillis, she associated breaker boxes and junction boxes
and equipment out in the plant with the grounding requirement, not appliances in an office kind
of room. Tr. 129.
Respondent then called Mr. Andy Hill, Vulcan’s electrical maintenance manager for its
Southern Gulf Coast division. He has been employed with Vulcan for 39 years and he has 42
years of experience as an electrician. Tr. 133. Hill described the control room as an office-type
environment area with usually a desk with a set of controls, noting that Vulcan calls it the
operator house. It is from that location that the plant is operated as the control room operator
watches and controls the plant to produce the plant’s product, limestone. Except for incidental
track-in wetness from outside, the control room is not wet. Tr. 136.
Referring to Ex. C-5, Hill identified it as the tag which was affixed to the heater. The UL
listing on the tag reflects that it conforms to UL 1278. Tr. 138. The UL listing informs that the
product is deemed as to “mechanical strength or electrical strength, to be a safe product to be
used in the area where it was designed for.” Tr. 138. Hill informed that UL 1278 recommends
“not using it in a wet location, bathroom area, laundry rooms, stuff of that nature.” Tr. 139.
There is a risk in those situations of electrical shock but from “[b]eing knocked over into water
or something of that type of incident … [a] tub or something.” Id. Hill made the point that the
control room presents no such risks. Tr. 140. Respondent’s Ex. V-3, representing portions from
UL 1278, dated March 21, 2014 was admitted.

7

There is no Exhibit V-1 in the record, because it is duplicative of an exhibit already
entered by the Secretary.

41 FMSHRC Page 455

Hill’s interpretation of UL 1278 is that no three prong plug is required in the control
room, because the control room is not located in a wet area. Tr. 142. Hill noted that another
heater owned by Respondent does have a three prong plug, because it is located in a bathroom
where the floor can become wet. Tr. 141-42. Hill read into the record that Section 36.3 of
Ex. V-3 provides “[i]f a heater intended for operation on a circuit involving a potential of 150
volts or less to ground has provision, although not required, for grounding noncurrent-carrying
metal parts by means of a conductor of the cord, a directly attached flexible cord or cord set
provided with the heater shall comply with the requirement in 36.2.” Tr. 142-143.
The Court asked Hill to explain the significance of the provision he just read and he
responded
Section 36 of UL standard 1278, is grounding. And under that section [if] you
have … [a] heater intended for operation on a circuit involving potential of more
than 150 volts to ground … [then one] shall have provision for grounding in
accordance with 36.2, of all exposed noncurrent-carrying parts, and all
noncurrent-carrying metal parts exposed during any servicing operation, including
maintenance and repair, that are likely to be energized.
Tr. 144. Hill added that the provision would not apply to “the heater in question because
it’s working at a voltage of 120 volts to ground.” Id.
After providing a more lengthy explanation of his interpretation,8 Hill summed up that
the provision in his view provides that if one is dealing with a heater of 150 volts or less , “then
8

In attempting to clarify his view, Hill then added,

[s]o it's saying in that you have to have provision for grounding. 36.2 says, on a
heater where grounding is required … or provided, the power supply cord or cord
set shall include a grounding conductor which shall be -- and it's telling you green
coated, which is a recognized identification of a ground conductor or with a
yellow stripe -- green with a yellow stripe and connected to the grounding pla[t]e
of an attachment plug of a grounding type, which would be a three-pronged plug,
and connected to the enclosure of the appliance.
Tr. 145. Hill interpreted that to mean that,
right there under definition, enclosure, they're implying that an appliance is an
enclosure. So by connected to the enclosure of the appliance, that means it was
not likely to be removed during the ordinary servicing or equivalent means.
Solder alone is not acceptable for making this connection. […] [t]hen Section 3
comes up […] [and informs] [i]f a heater intended for operations on a circuit
involving a potential of 150 volts or less to ground [ ] 36.1 says a potential of 150,
more than 150 to ground, so now they're at 150 volts to ground, which is what the
circuit – [the] voltage the heater was operating on -- in question was operating.
[…] Involving potential 150 volts or less to ground has provisions although not
(continued…)
41 FMSHRC Page 456

whatever cord comes with it is acceptable under UL 1278.” Therefore, the cited heater falls
under 36.3 as it had a directly attached flexible cord or a cord set. Tr. 146-147. The voltage in the
control room is 120 volts, applying to appliance items and therefore less than 150 volts.
Tr. 147.
Respondent’s Ex. V-4, pertaining to certain pages from the 2017 National Electric Code,
was admitted. Hill, referring to that exhibit, and within that, to Section 110 in the National
Electric Code which sets forth the chapter definitions. He explained that section 110.3 states that
UL is used in listings of product certifications of equipment. NEC he stated is akin to his Bible.
NEC, he noted, recognizes UL listing. And “NEC requires equipment that's installed safely to
operate safely in people's protection to be a listed product.” Tr. 150. Further, regarding the plug
for the heater, section 420.49 allows that:
[i]f the appliance is provided with a manually operated inline single pole switch
for appliance on/off operation, an Edison-base lampholder, or a 15- or 20-amp
receptacle, the attachment plug shall be of polarized or grounding type. Two-wire
nonpolarized attachment plug shall be permitted to be used on a listed doubleinsulated shaver.
Tr. 151. Hill admitted the provision was vague and therefore required interpretation. However, in
his view, the heater in issue was “a recognized ,” that is to say, “a listed device” and as such it is
factory installed with a two polar plug. Tr. 151-152. The heater in issue was equipped with such
a polarized plug. Tr. 152.
Therein is the critical distinction applicable to this heater’s polarized plug, in Hill’s view.
He explained that:
[t]he purpose of the polarized plug[ ] is to identify the grounded conductor. In this
case, [involving] a 120-volt circuitry, [there is] […] a current-carrying leg. And in
a grounded circuit, even though [it’s] grounded at the power source, it's still
considered a current-carrying conductor, but it is a grounded conductor.
Tr. 152 (emphasis added). The Court inquired further about this assertion asking, whether,
because the heater had a polarized plug, it was a grounded conductor. Hill responded, “[i]t’s not
equipment ground conductor. It is a grounded conductor by NEC.” Id. (emphasis added). He
added, “[g]rounded and grounding are two different things. Grounded means at the system
8

(…continued)
required for grounding noncurrent-carrying metal parts by means of a conductor
of the cord. A directly attached flexible cord or cord set provided with the heater
shall comply with the requirements in 36.2, which said you had to have -- if you
had a carrying conductor, it had to be green with a yellow stripe.
Tr. 145-146.
9

Ex. V-4, at the first page of that exhibit, page 468, NEC recognizes polarity in cord and
plug-connected appliances.

41 FMSHRC Page 457

potential voltage, that there's an intentional ground to that system to the earth. […] [and as such]
that is a safety factor. Among other things, it actually stabilizes the voltage.” Tr. 153.
The system in this case is a “grounded system.” Id. The polarized plug does not make it a
“grounded system.” Rather, it is the 120 voltage rating that makes it a grounded system. Id.
That being the case, the Court then asked what, if anything, was the value of having a
polarized plug. Hill responded that with the polarized plug, with one prong being larger than the
other, one “cannot reverse the internal wiring of that. You've got it always plugged into the
grounding conductor.” Tr. 154. The Court, perplexed by some of Hill’s responses, pressed him
on whether a polarized plug has any effect on shock hazards. Hill responded that, under his
interpretation of UL 1278, and the testing required for that, it would take something catastrophic
before a hazard would occur. Tr. 156. Pressing him further, Hill expressed that there is an
increased chance of a shock hazard for a non-polarized plug. Tr. 156-157. He added that, without
being polarized, it would fall out of the UL design and testing. Tr. 157.
The Court then inquired about the inspector’s concern that if there were an internal defect
in the heater, there could be a hazard where the plug is only two-pronged. From that, the Court
inquired whether there was less of a chance that you could get hurt because the plug is polarized,
if there was something internally wrong with it. Hill responded that the hazard would be reduced
but only in comparison to a non-polarized two-pronged plug. He explained further,
[b]ecause of the design of the heater itself and the amount of testing and how they
test it, it's designed that if there was a fault to the case or enclosure, that with it
being a grounded conductor, basically it's going to do the same thing. That's the
reason why if you go back in the UL standards, that's why they say 150 volts or
less.
Tr. 158. Thus, Hill’s major reasoning stemmed from the 120 volts involved with the heater.
Hill reaffirmed that “the heater in question [was] compliant for use in the environment it
was [being used] in … consistent with its UL listing and with the National Electric Code
requirements.” Tr. 162. Turning back to Exhibit V-3, Respondent revisited the inspector’s
concern for the “potential for an energized conductor inside the box to somehow contact the
metal case thereby energizing the metal case but not having a direct path to ground and thereby
tripping the breaker and isolating hazard.” Tr. 162-163. Hill’s answer was that the testing
standards are rigorous and this includes that such devices have to withstand 50,000 ohm,
potential test to the housing, meaning that there has to be a minimum of 50,000 ohms of
resistance between the intended conductors and the housing. Tr. 163. The testing associated with
meeting the standard to be so listed includes “drop tests, crush tests, dielectric testing. … they
even do abuse testing. They spray it with water. They do multiple testing. … They first operate
the heater, and while it's still at operating temperature, they test it at the 50,000 ohm value.” Tr.
164. After all that abuse testing, based on UL 1278, the device must still measure a minimum of
50,000 ohms of resistance. Tr. 164.
Referencing the abnormal operation tests, which are part of UL 1278, Hill referred to the
overvoltage, tip-over, and drop tests that a device must satisfy to achieve the UL 1278 listing.

41 FMSHRC Page 458

Tr. 166-167. Ex. V-3. Hill expressed his view that the UL listing should be considered
“equivalent protection” because the standard is basically almost word for word out of the NEC.”
Tr. 170.
Upon cross-examination, Hill agreed that the heater has metal parts on the outer casing
and that the two-pronged plug for the heater had no ground wire. Tr. 172. Asked what would
happen if the metal part of that heater were to become electrified with 120 volts, Hill responded
that “[i]t would probably trip the overcurrent device.” Tr. 173. He acknowledged that if the
circuit had a ground wire connected to the case it would definitely trip. Tr. 174. Thus, he agreed
that “when [the heater] has a ground attached to the metal cabinet, it is really an insurance that
no one will be shocked with an energized cabinet.” Tr. 174.
The Court then asked additional questions of Hill. Asked if considered the heater to be a
metal enclosing electrical circuit and a metal encasing electrical circuit, he affirmed that it was.
Tr. 180. He was then asked if he considered the heater’s polarized plug arrangement to constitute
grounding, Hill answered, “it's not grounded with an equipment ground, no. But by UL standard,
it was safe enough to use on a grounded system of 120 volts that wouldn't pose electrical
shock… [based on] the UL standards.” Id. Hill reiterated that the heater was not grounded “with
a[n] equipment-grounding conductor.” Tr. 181. However, he did reaffirm his view that the heater
had equivalent protection. Id. The Court then asked him to identify the equivalent protection to
which he answered, “[t]he equivalent protection, in my professional opinion, based on standards
or the listing, that there has been vigorous steps in the design of this piece of equipment that UL
standard put -- they went through these tests they put their stamp on, and NEC, which is a safety
electrical code that protects people, approves, said it's okay to use as it's designed. So yes, I do
think it's equivalent.” Tr. 182.
The Court inquired further, as to whether Hill was addressing “equivalent protection” to
grounding, not just equivalent protection. Hill answered, “in my professional opinion, based on
my training of the code, they recognize it as being equivalent.” Tr. 182-183. Pressed further, the
Court asked, if that meant “being equivalent protection to grounding,” Hill responded, “Yes.”
After Hill testified, the Respondent rested its case. As the Secretary did not elect to recall
any witnesses, the hearing was concluded.
The Parties’ Post-hearing Briefs
The Secretary of Labor’s Initial Brief
The Secretary contends that by the “plain and unambiguous language, section 56.12025
applies to the personnel heater at issue,” adding that “when the language of a regulation is clear,
the Commission has recognized that the terms of that regulation “must be enforced as they are
written’ …” Secretary’s Post Hearing Brief (“Sec. Br.”) at 12-13.
The Court does not believe that the words and application of the standard are so clear.
As the Secretary acknowledges, “the plainness or ambiguity of statutory language is determined
[not only] by reference to the language itself, [but as well by] the specific context in which that

41 FMSHRC Page 459

language is used, and the broader context of the statute as a whole.” Id. This is the approach the
Court has taken, analyzing the specific context in which that language was applied here.
As the Secretary concedes, “[n]either the Mine Act nor the regulation define the phrase
‘metal used to enclose or encase electrical circuits’ ; however, the NEC defines the term
‘enclosed’ as ‘surrounded by a case, housing, fence or wall(s) that prevents persons from
accidentally contacting energized parts.’” Id. at 13, citing NFPA 70-2017, Article 100
Definitions, p. 70-36.
The Secretary asserts that the heater was neither grounded nor provided with equivalent
protection. The focus is upon whether the heater was provided with equivalent protection.
He notes that the Inspector stated that equivalent protection would only be through a Ground
Fault Circuit Interrupter (“GFCI”) or through double insulation. Id. at 16. The Secretary takes
issue with Respondent’s contention that reliance upon UL 1278, which the Secretary concedes
“appears to exempt electric heaters of 150 volts or less from being grounded.” Id. The Secretary
counters that the standard requires all metal enclosing or encasing electrical circuits to be either
grounded or provided with equivalent protection; and consequently it does not provide for
exemptions. Id.
The Secretary then asserts that, even if the meaning of the regulation is ambiguous, the
Secretary’s interpretation of the regulation is entitled to deference. Id. at 17. Among other cases
cited in support of such deference, the Secretary cites to American Coal Co. v. Fed. Mine Safety
& Health Rev. Com’n, 796 F.3d 18, 24 (D.C. Cir. 2015) and Hecla Limited, 38 FMSHRC 2117,
2122 (Aug. 2016). The Secretary asserts that his “interpretation of section 56.12025 is entitled to
deference because it is consistent with the plain words and purpose of the regulation, as well as
the broader purpose of the Mine Act to protect the safety and health of miners.” Id. at 18, citing
Emery Mining Co., v. Sec’y of Labor, 744 F.2d 1411, 1414 (10th Cir. 1984).10
The Secretary’s Reply Brief
In its Reply Brief (“Sec Reply”), the Secretary urges that the Court should not adopt
Vulcan’s interpretation of what constitutes “equivalent protection” because it does not comport
with the plain meaning of the standard, does not promote safety, and would lead to the absurd
result of defeating the purpose of the standard. Sec. Reply at 2. The Secretary distinguishes the
10

The Secretary also cites to Contractors Sand and Gravel, Inc., 20 FMSHRC 960, 970
(Sept. 1998) for the proposition that the Commission recognized that “[t]he protective purpose of
[56.12025] is to prevent injury from electrocution caused by a malfunctioning or improper
grounding system.” However, the Secretary neglects to mention that the Court of Appeals for the
District of Columbia Circuit reversed the Commission’s decision in Contractors Sand and
Gravel, specifically because it determined that, as a matter of law under the Equal Access to
Justice Act, the Secretary’s litigating position “lacked substantial justification.” Sec’y of Labor v.
Contractors Sand and Gravel, Inc., 199 F.3d 1335, 1340-41 (D.C. Cir. 2000). To be sure, the
D.C. Circuit specifically rejected a contention that the standard proscribes a specific method for
grounding electrical equipment, which is not at issue in this matter. But the principle that the
commitment to protecting the health and safety of miners entitles the Secretary to deference is
not borne out by Contractors Sand and Gravel in light of the D.C. Circuit’s reversal.

41 FMSHRC Page 460

cited standard from 30 C.F.R. § 56.12045 and 30 C.F.R. § 56.12048, as both those standards
specifically reference the NEC, whereas 30 C.F.R. § 56.12025 does not. He reasserts that the
plain language of the standard requires the heater to be grounded or provided with protection that
is equivalent to grounding. He maintains that the intent of the standard is to protect miners
against electric shock and electrocution but that the UL tests identified by Vulcan do not protect
miners against those hazards. Id.
As for Vulcan’s claim that the standard does not apply to the control room, the Secretary
responds that “no matter the dimensions of the control room, or terms Vulcan uses to describe
the control room, it is part of the mine and consequently, under MSHA’s jurisdiction; therefore,
the standard applies.” Id. at 3.
Addressing Vulcan’s vagueness claim, that the meaning of the terms “equivalent
protection” and “metal enclosing or encasing electrical circuits” are not specified, the Secretary
responds that a standard’s use of general terms does not mean that it suffers from vagueness.
Standards may be drafted in general terms “in order to be adaptable to the myriad of
circumstances in a mine” as long as “a reasonably prudent person, familiar with the mining
industry and the protective purpose of the standard, would recognize the hazardous condition that
the standard seeks to prevent.” Id. The hazard addressed by the standard is electric shock.
Further, both Inspector White and Mr. Hill stated that that the cited heater had metal enclosing or
encasing electrical circuits. The inspector stated that for equivalent protection, there would need
to be either a Ground Fault Circuit Interrupter (“GFCI”) or double insulation. Id. at 4.
Last, the Secretary contends that the administrative law judge’s decision in San Juan is
distinguishable from this matter. After correctly noting that administrative law judge decisions
have no precedential effect, the Secretary distinguishes 30 C.F.R. § 77.701 from the standard in
this matter. It notes that section 77.701 requires metallic frames, casings, and other enclosures of
electric equipment that can become alive through failure of insulation or by contact with
energized parts are to be grounded by methods approved by an authorized representative of the
Secretary. Id. at 4-5. Although the judge in San Juan concluded that the two toasters and a
portable heater were not “electric equipment”, and therefore section 77.701 did not apply, and
that the UL listing amounted to a certificate that the heater had an equivalent means of shock
protection, the Secretary contends that the standard in this litigation, 56.12025, is broader, as it is
not limited to electric equipment. Id. at 5. Instead, it applies to all metal enclosing or encasing
electrical circuits. A further distinction, the cited standard “requires shock protection equivalent
to being grounded, not to double insulation.” Id. An additional distinction, Further, § 77.701
requires electric equipment enclosures be grounded by methods approved by an MSHA
inspector. 11 Id.
11

Alternatively, the Secretary urges that if this Court were to conclude that the coal
standard is useful in construing the cited standard, it should look to the rationale in Pittsburg &
Midway Coal Mining Co., 9 FMSHRC 1908 (November 1987) (ALJ)(“Pittsburg”). In Pittsburg,
the ALJ concluded that section 77.701 applied to a 110-volt space heater located in the electrical
supervisor’s office. That heater was metal-cased, lacked a three-prong plug or any other type of
grounding, and had a “UL” stamp of approval on it. Id. at 1911-1912. The judge recognized,
“[f]ailure to ground this type of heater could cause shock, serious burns or a fatality. If this
(continued…)

41 FMSHRC Page 461

Vulcan’s Initial Brief
Vulcan summarizes its factual position in its initial post-hearing brief (“R’s Br.”) as
follows:
The heater at Fort Payne was used only in the control room. The control room is a
low-traffic area that is dry and orderly. The heater has been used for years in this
room and has never been cited by MSHA for not having a ground prong. The
heater was not damaged and was not in use at the time of the inspection. In order
for the heater to case a shock, it would have to develop an electrical fault. This is
extremely unlikely due to the extensive tests that are required for the heater to be
UL listed. In addition, the heater was used in a clean, low-traffic, dry room and
was very unlikely to suffer any damage that would result in an electrical fault.
R’s Br. at 5.
Though elaborated below, Vulcan’s legal argument is that,
[t]he standard cited allows for grounding or ‘equivalent protection’. The only
guidance for ‘equivalent protection’ provided by MSHA is double insulation. The
actual definition of ‘equivalent protection’ is not available to the general public.
11

(…continued)
condition [of the heater not being grounded] continued and a fault occurred you could reasonably
expect a shock or serious burn.” Id. The judge also noted that the inspector did not know whether
MSHA had a policy concerning the grounding of appliances. The inspector opined about the
different ways the heater in Pittsburg could have been grounded. Respondent, Pittsburg argued
that as MSHA had not issued a policy or interpretation requiring the replacement of two-prong
plugs, the inspector’s requirement that the operator abate the hazard with a three-prong plug was
just the inspector’s personal preference. However, the judge disagreed and affirmed the citation
against P&M holding that “several methods of grounding were available but . . . a three way plug
was required.” Id. at 1914. The judge also found that Pittsburg “was negligent as to the
ungrounded space heater inasmuch as this condition was open and obvious” and that the gravity
of the violation was high because “[a] miner could have been burned or electrocuted by the
electrical space heater.” Id. at 1919-1920. The judge then assessed a penalty of $150 for P&M’s
violation of section 77.701. The facts of the Pittsburgh case are very similar to those of the
instant case; therefore, Pittsburg, and not San Juan, should have persuasive weight with this
Court.
The Court did review Pittsburg. However, it does not find the decision to be helpful in
that the judge there simply upheld the Secretary’s authority to enact general regulations relating
to equipment and to impose stricter limitations than the NEC. No one disputes that the Secretary
may do that, but the question is whether the language employed in the standard is unenforceably
vague such that a reasonably prudent person familiar with the mining industry and the protective
purposes of the standard would have recognized the specific requirement of the standard and
that, applying the reasonably prudent person test to the subject standard, such a person would
have considered the heater to be a metal enclosing or encasing electrical circuit.

41 FMSHRC Page 462

Based on the evidence provided, the UL listing on the heater should be considered
‘equivalent protection’ and appliances used in office-type environments should
not be considered ‘electrical circuits’ thus rendering this citation invalid.
Id.
Vulcan notes that:
[t]he heater is UL1278 listed. UL1278 details standards for moveable and wall or
ceiling-hung electrical room heaters. In order for an appliance to have the UL
listing, it must comply with the National Electric Code. Section 68.2 of the
UL1278 standards states that ‘This heater is not intended for use in bathrooms,
laundry areas and similar indoor locations. Never locate the heater where it may
fall into a bathtub or other water container.’ In order to achieve an U1278 listing
the heater must be subjected to many abusive tests and still maintain at least
50,000 ohms of resistance.
Id. at 1.
Vulcan also remarks that “[t]he control room where the heater was located is an indoor
location where the plant can be controlled and observed.” Id. at 2. It observes that while “MSHA
emphasized that the heater was used in a mining environment” and suggested “that the control
room was more likely to cause a condition that would damage the heater and lead to an electrical
fault,” Id. Vulcan submits that is unsupported, as “the control room is less likely than a home
environment to cause damage since the control room generally has one qualified, trained miner
inside.” Id. In fact, Vulcan submits that “the control room is much less likely to cause damage to
the heater than a residence.” Beyond those contentions, Vulcan adds that since “the circuit
breaker the heater was plugged into had a 20 amp overcurrent protection […] the breaker would
most likely have tripped if the heater had encountered a fault.” Id.
Beyond the particular facts attendant to the citation, Vulcan contends that the standard 30
C.F.R § 56.12025, does not define “metal enclosing or encasing electrical circuits,” nor does
MSHA’s metal/non-metal program policy manual offer guidance on that phrase. The National
Electric Code does not define it either. Vulcan submits that “[i]n the absence of a definition, a
reasonable assumption of the term could be that the term refers to electrical installations such as:
breaker boxes, junction boxes, starters or electrical disconnects.” Id. at 3.
Vulcan believes that the parallel MSHA coal standard, 30 C.F.R. § 77.70112 supports its
view. Vulcan contends that the MSHA program policy manual13 associated with that standard,
also offers support for its view.
12

§ 77.701, titled, “Grounding metallic frames, casings, and other enclosures of electric
equipment,” states “[m]etallic frames, casings, and other enclosures of electric equipment that
can become “alive” through failure of insulation or by contact with energized parts shall be
grounded by methods approved by an authorized representative of the Secretary.”

41 FMSHRC Page 463

The significance of the absence of any definition comes to the fore, because Vulcan
asserts that the standard itself is fatally vague. It points to the need for a standard to “give a
person of ordinary intelligence a reasonable opportunity to know what is prohibited and it cannot
be so incomplete, vague, indefinite, or uncertain that men of common intelligence must
necessarily guess at its meaning and differ as to its application” R’s Br. at 3, citing San Juan.
Vulcan contends that “[s]ince MSHA does not define either “metal enclosing or encasing
electrical circuits” or “equivalent protection”, the industry is left to guess at its meaning. Id. at 4.
It asserts that:
[a] reasonable person would likely not guess that a portable heater would be
considered a ‘metal enclosing or encasing electrical circuit.’ Also, a reasonable
person could infer that a UL listed heater used in a UL approved location would
be considered ‘equivalent protection.’ In fact, because the heater has been in the
control room for many years, it is reasonable to assume that past MSHA
inspectors have also not considered the heater an electrical circuit and considered
that it had equivalent protection.
Id.
13

MSHA’s coal program policy manual addressing standard 77.701, Grounding Metallic
Frames, Casings, and Other Enclosures of Electric Equipment, provides:
Certain moveable electric equipment, e.g., rail-mounted and pivoting coal
stackers, traveling shop cranes on track rails, small traveling hoists on I beams,
etc., cannot be strictly classified as portable, mobile or stationary equipment. For
the purposes of frame grounding, such equipment shall be considered stationary.
Consequently, the grounding requirements of Subpart H apply to such equipment.
This Section requires that metallic frames of electric equipment be grounded by
methods approved by an authorized representative of the Secretary. Therefore,
rail-mounted and pivoting coal stackers, traveling shop cranes on track rails, small
traveling hoists on I beams, and similar equipment shall be grounded in
accordance with the following: All tracks shall be bonded or welded at each joint,
and each individual track rail or I beam shall be solidly grounded through a
grounding conductor which meets the requirements of Section 77.701-3 to an
acceptable grounding medium. In instances where the conveyor, hoisting and/or
tramming motors receive power through a trailing cable, the moving frame shall
be grounded to an acceptable grounding medium through a proper size grounding
conductor inside the cable. In instances where the conveyor, hoisting and/or
tramming motors receive power through a trolley system, the moving frame shall
be grounded to an acceptable grounding medium through an additional grounding
trolley contact.
Program Policy Manual, Volume V – Coal Mines, U.S. DEP’T OF LABOR, MINE SAFETY &
HEALTH ADMIN., https://arlweb.msha.gov/REGS/COMPLIAN/PPM/PMVOL5R.HTM (last
visited July 16, 2019).

41 FMSHRC Page 464

Vulcan also takes note that,
MSHA relies on the NEC and UL to determine if a device is double-insulated and
thereby meeting the test for ‘equivalent protection’ per Inspector White’s
testimony. The heater in question is also UL listed and certified as safe for the
application in which it was being used. In this citation, MSHA chose to rely on
one UL listing but not the other. The list of MSHA-accepted UL listed devices is
not available to the industry or general public. In addition, this heater would be
acceptable in an equivalent OSHA location due to its UL listing. Without a
written interpretation from MSHA, the mine operator is left to guess at what is
acceptable.
Id.
Vulcan’s Reply Brief
Vulcan points in its reply brief (“R’s Reply Br.”) to the National Electric Code,
Underwriters Laboratories, and OSHA regulations that support its position. It notes that
Inspector White acknowledged that UL standards provide assurance that such approved products,
if correctly used, would be safe. R’s Reply Br. at 1. It points to Inspector White’s
acknowledgement that the NEC is a code for manufacturing and constructing and building
different electrical devices and meeting the code. Vulcan adds that OSHA drew heavily from the
NEC in revising its electrical hazards standards and it asserts that “OSHA incorporates the
National Electric Code and recognizes that the UL listing complies with the product safety test
standards. Therefore, the UL and NEC codes are much more than simply ‘codes to limit a
company’s liability.’” Id. at 2.
Challenging the inspector’s claim that the cited heater was subject to more stringent
conditions, Vulcan notes that the applicable UL standard, 1278, makes plain that the heater is not
intended for use in bathrooms, laundry areas and similar indoor locations nor where it may fall
into a bathtub or other water container. The cited heater is not used in, nor subject to, such
conditions and the UL standard does not limit it to residential use. Id. Vulcan adds that the
control room at Ft. Payne has much less traffic and more stringent conditions than a normal
household and that a typical household is subject to children, pets and more visitors than the
control room. Id.
Vulcan response to Inspector White’s concern that electrical shock could result if there
was some internal damage to the heater and its electrical circuits or if the heating element were
to touch the metallic parts of the heater, is that such an event would be extremely unlikely.
In fact, Vulcan contends that for that to happen the heater would have to be crushed. Id. at 3.
In that regard, Vulcan points out that the Inspector acknowledged that the heater was not
damaged in any way. Id. Vulcan adds that for the heater to qualify for UL 1278 approval,
rigorous testing is required. This includes tests on the heater involving overvoltage, tip-over,
stalled fan, dropping the heater three times from a height of three feet and a strain relief test on
the cord. Id. at 3-4.

41 FMSHRC Page 465

As for the Secretary’s reference to past citations, Vulcan remarks that none of them
involved “heaters located in a dry, office-type control room.”14 Id. at 4. Vulcan notes that
Citation 6127272 was written for a two-prong heater in use inside a water pump building, with
the inspector’s notes remarking that the room was very wet. Id. at 5.
Vulcan sums up that it is extremely unlikely that the cited control room heater would
develop an electrical fault to cause a shock. It characterizes such an event as extremely unlikely
due to the extensive tests that are required for the heater to be UL listed. Further, it notes that
OSHA incorporates the National Electric Code and recognizes that the UL listing complies with
the product safety test standards. From that it contends that since the heater has the UL listing
and was in compliance with the NEC, it should be considered as having “equivalent protection”
under the cited standard. This is especially true, it argues, since the definition of “equivalent
protection” is not available to the general public. Vulcan maintains that appliances used in
office-type environments should not be considered “electrical circuits.” Id. at 6.
Discussion
For the reasons explained below, the Court must affirm this citation. As noted, the
standard cited, 30 C.F.R. § 56.12025, titled, “Grounding circuit enclosures,” provides: “[a]ll
metal enclosing or encasing electrical circuits shall be grounded or provided with equivalent
protection.” Although the terms “metal enclosing or encasing” electrical circuits and “equivalent
protection” are not defined, Mr. Hill affirmed that the heater was a metal enclosing electrical
circuit and a metal encasing electrical circuit. Hill’s concession fits with the common
understanding of an electrical circuit, that is defined as “an electrical device that provides a path
for electrical current to flow.”15. Certainly the heater in question fits the definition. As noted, Hill
also conceded that the heater is a metal encasing/enclosing appliance. There is no serious dispute
about these two issues.
There is next the issue whether the heater was grounded or provided with equivalent
protection. Respondent’s Hill, who must be complimented for his frank and credible testimony,
stated that the heater was not grounded. He did, however, express his honest view that equivalent
protection was provided. As described above, his view relied upon the rather strenuous
requirements provided through the UL approval process.

14

Vulcan adds that for one of the citations mentioned by the Secretary in his post hearing
brief as written for an ungrounded heater, and identified by the Secretary as Citation No.
6523834, there is no information on the citation to indicate if the heater was manufactured as a
two-prong or three-prong heater, nor information about where the heater was located. Vulcan
remarks that it is possible that the heater was located in a wet area. The Court notes that the
citation number was actually No. 8631815. The number given by the Secretary as the citation,
6523834, is actually the “Event No.”
15

ELECTRICAL CIRCUIT, https://www.vocabulary.com/dictionary/electrical%20circuit
(last visited July 18, 2019).

41 FMSHRC Page 466

It is at that juncture that matters become more complicated, because the Secretary has
some deference afforded to its interpretation of safety standards. As described above, the
Secretary has set forth the basis for this claim of deference in his post-hearing briefs.
Challenging the Secretary’s claim that the standard applies to the cited portable heater,
Vulcan has pointed to an administrative law judge’s decision in San Juan. Exhibit V-2. In San
Juan the judge was dealing with 30 C.F.R. § 77.701, a coal mining standard pertaining to
grounding. Titled “Grounding metallic frames, casings, and other enclosures of electric
equipment,” it provides that “[m]etallic frames, casings, and other enclosures of electric
equipment that can become ‘alive’ through failure of insulation or by contact with energized
parts shall be grounded by methods approved by an authorized representative of the Secretary.”
Two toasters, that is, simply appliances to toast bread, and a portable heater were involved in that
case.16 The inspector noted that the appliance “was located on a formica-topped metal table
sitting in an eating area in a warehouse with a concrete floor. … it had no external ground, had a
metal housing, and was equipped with a size 16 cord (four feet long) with two conductors.”
Id. at 1693.
As in this matter, the inspector in San Juan was concerned that “people could become the
‘ground’ themselves, if ‘something happened to the internal wiring’ and the insulation failed and
a person walked up and touched it. Id. (emphasis added). The judge referred to the toaster’s UL
approval and a National Electric Code (NEC) provision stating that such a toaster can be used in
areas which are not damp or wet. The evidence included information from Underwriters
Laboratories, Inc., (“UL”) which informed that “Underwriters Laboratories Listed electrical
equipment for ordinary locations has been evaluated for use in accordance with the National
Electrical Code and to determine that the design of such equipment provides for the reduction of
the risk of injury to life and property.” Id. at 1695. UL also stated that:
[e]lectric toasters are not among the appliances in residential occupancies required
to be grounded by Section 250-45(c). Additionally, in other than residential
occupancies, cord-and-plug connected appliances not used in damp or wet
locations or by persons standing on the ground or on metal floors or working
inside metal tanks are not required to be grounded. … UL considers Listed
electric toasters, although not grounded, to comply with the NEC whether used in
residential occupancy or the type of premises you described which I understand is
a dry location.
Id. Interestingly, UL advised that “[m]odifications to toasters to replace the power cord with a
grounding type cord, which you indicate is required by the inspector, can introduce risks of
electric shock or fire.” Id.
Judge Lasher observed that “[a] safety standard must give a person of ordinary
intelligence a reasonable opportunity to know what is prohibited and it ‘cannot be so incomplete,
vague, indefinite, or uncertain that men of common intelligence must necessarily guess at its
meaning and differ as to its application.’” Id. at1699 (emphasis in original). That being the case,
16

The parties stipulated that the judge’s determination for one of the toasters would
control the outcome for the other toaster and the portable heater. Id. at 1692.

41 FMSHRC Page 467

the judge concluded that the standard, 30 C.F.R. § 77.701, was “sufficiently indefinite and
unclear in its application here as to cause disagreement among Petitioner’s own hierarchy […] as
well as failing to communicate that it could be intended to apply to small toaster-ovens and a
small portable heater manufactured for use without a grounding conductor in the cord and plug.”
Id.
Judge Lasher also noted that “MSHA’s own Program Policy Manual, (hereafter,
“Manual”) […] appears to exempt U.L. approved cord-and-plug appliances such as the toaster
ovens and heater involved here [as it provides that] [p]ortable tools and appliances that are
protected by approved systems of double insulation, or its equivalent, need not be grounded.”
Id (emphasis in original). The judge concluded that “the U.L. listing is in effect a certificate that
the three listed appliances have means of shock protection equivalent to double insulation.”
Id. at 1700.
The judge looked to the Manual for additional guidance, as it:
appears to give some idea of the type of ‘electric equipment’ 30 C.F.R. § 77.701
is intended to encompass, i.e., ‘Certain movable electrical equipment, e.g., railmounted and pivoting coal stackers, traveling shop cranes on track rails, small
traveling hoists on I beams, etc.’ The types of clear-cut mining equipment
mentioned as examples by MSHA as a minimum delivers considerable weight to
Respondent’s contention that the subject standard is unenforceably vague when
applied to the three appliances in question.
Id. Thus the judge concluded that a reasonably prudent person familiar with the mining industry
and the protective purposes of the standard would not have recognized the specific prohibition or
requirement of the standard [and that] [a]pplying the ‘reasonably prudent person’ test to the
subject standard, such a person would not consider the term ‘electric equipment’ used in 30
C.F.R. § 77.701 to apply to the three UL approved appliances in question and have recognized a
requirement to modify each appliance by grounding it externally [and thus that] [t]he three
appliances involved--the two toasters and the portable heater-- are not “electric equipment” as
that term is used in 30 C.F.R. § 77.701.”17 Id.
Although the Court agrees that there are some similarities between this matter and the
San Juan decision, the Court finds that they are distinguishable for several reasons. First, it is
17

The Court did review Pittsburg & Midway Coal Mining Co., 9 FMSHRC 1908
(November 1987) (ALJ), cited by the Secretary as offering a rationale worthy of adopting. Sec.
Reply at 5. The decision affirmed the Secretary’s authority to enact general regulations relating
to equipment and may impose stricter limitations than the NEC. No one disputes that the
Secretary may do that, but the question at hand is whether the language employed in the cited
standard, 30 C.F.R. § 56.12025, is unenforceably vague such that a reasonably prudent person
familiar with the mining industry and the protective purposes of the standard would not have
recognized the specific requirement of the standard and that, applying the reasonably prudent
person test to the subject standard, such a person would have considered the heater to be a metal
enclosing or encasing electrical circuit. As explained, the Court finds that the standard is not
unenforceably vague and that equivalent grounding protection was not provided.

41 FMSHRC Page 468

true that the decision of another administrative law judge has no precedential effect. Further, the
language of the two standards is not identical. In addition, at least for the coal standard, MSHA
issued a program policy statement, which the judge in San Juan construed to support his
position. Beyond those observations, the Court does not agree that the term “equivalent
protection” is unenforceably vague. The phrase must be measured against the object of the
standard – to achieve grounding. Therefore the equivalent protection must afford equivalent
grounding protection.
When the Court asked Mr. Hill if he considered the heater’s polarized plug arrangement
to constitute grounding, he admitted it wasn’t grounded with an equipment ground, but he
believed that, due to the UL standard, it was safe enough to use on a grounded system of 120
volts. It can’t be that each mine operator gets to opine about what constitutes equivalency. If
reasonable, it is within the Secretary’s purview to make those calls and deference is due in these
circumstances. Kisor v. Willkie, 588 U.S. ___, ___ (2019)(slip. op. at 14)(“[i]f genuine ambiguity
remains, moreover, the agency’s reading must still be reasonable.”)(internal quotations omitted).
This does not mean that deference to the Secretary’s position is unbounded. Deference is
not automatically, nor blindly, given. A regulation must actually be ambiguous before the
Secretary’s interpretation is entitled to deference. Kisor, 588 U.S. at ___ (slip. op. at 1314)(“[b]efore concluding that a rule is genuinely ambiguous, a court must first exhaust all the
traditional tools – the text, structure, history, and purpose – of construction.”)18 In Drilling and
Blasting Systems, Inc. 38 FMSHRC 190, (Feb. 2016), the Commission addressed an
Administrative Law Judge’s determination that deference was not due, as it was “plainly
erroneous.” Id. at 193. The Commission, noting that the term “attended” as it appears in section
56.7012 and section 56.2 is ambiguous vis-à-vis the issue presented, acknowledged that
“[o]rdinarily, [it] must defer to the agency’s interpretation of its own ambiguous regulation. …
However, deference is inappropriate if the agency’s interpretation is not reasonable or when it is
‘plainly erroneous or inconsistent with the regulation’ … or ‘when there is reason to suspect that
the interpretation does not reflect the agency’s fair and considered judgment on the matter.’”
Id. at 194. As in this case, the decision rested upon the particular facts involved.

18

In Brown Bros. Sand Co., 17 FMSHRC 578, 584 (Apr. 1995), cited by the Secretary,
the administrative law judge was dealing with the same standard involved in this matter but there
were significant factual differences involved as it pertained to metal frames on disconnect boxes
for a conveyor and two shaker screens and light switch boxes, none of which were grounded.
These items were outdoors and the inspector stated that the absence of grounding exposed miners
to potential electrocution. The judge simply stated that the cited standard requires the grounding
of all metal enclosures encasing electrical circuits. The case is of negligible value, as the
applicability of the standard was not challenged; issues of negligence and whether the violation
was significant and substantial were the focus of the decision. Similarly, Contractors Sand &
Gravel Supply, Inc., 18 FMSHRC 384 (Mar. 1996) (ALJ), cited by the Secretary is of minimal
value. While the judge did hold that the cited standard, 30 C.F.R. § 56.12025, is specific and not
broadly worded and is a performance standard, the citation was vacated as an attempt to expand
the standard beyond its plain meaning, by trying to proscribe the method of grounding employed
by the operator, constituting an impermissible expansion of the plain meaning of the standard.

41 FMSHRC Page 469

Examining those particular facts, the Commission concluded that the Secretary’s interpretation
was not the most natural reading of the safety standard, and accordingly concluded that there
plainly was no basis for deference. Id. at 197.
The text of the standard at issue in this case does not define “metal enclosing or encasing
electrical circuits,” nor does it define protection equivalent to grounding, nor are those terms
otherwise defined Part 56. In such instances however, as long as the Secretary’s interpretation is
not plainly erroneous or inconsistent with the standard, it is the Secretary’s call to set forth the
basis for determining that the appliance in issue is captured by those terms and whether
protection equivalent to grounding was present. In this instance, the Court cannot conclude that
the Secretary’s interpretation of “metal enclosing or encasing electrical circuits” is unreasonable,
separate and apart from the Respondent’s noteworthy concession that the heater fits those terms.
Nor can the Court conclude that it is plainly erroneous or inconsistent with the standard at issue
for the Secretary to set out what constitutes “equivalent protection” for purposes of meeting the
regulation’s requirement that the protection be equivalent to grounding, which the Secretary’s
authorized representative determined the electric heater lacked. In this instance, the Secretary
established that such equivalent protection was not provided.19
In light of the above considerations, the Court concludes that the Secretary established by
a preponderance of the evidence all of the elements necessary to sustain a violation of 30 C.F.R.
§ 56.12025.
Penalty Determination
In assessing civil monetary penalties, Section 110(i) of the Act requires that the
Commission consider the six statutory penalty criteria:
[1] the operator’s history of previous violations, [2] the appropriateness of such
penalty to the size of the business of the operator charged, [3] whether the
operator was negligent, [4] the effect on the operator’s ability to continue in
business, [5] the gravity of the violation, and [6] the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation.
30 U.S.C. § 820(i).
As the Commission has noted, “Administrative Law Judges are accorded broad discretion
in assessing civil penalties under the Mine Act.” Westmoreland Coal Co., 8 FMSHRC 491, 492
(Apr. 1986). A Commission Judge’s penalty assessment is reviewed under an abuse of discretion

19

Even when considering Vulcan’s view that the control room is akin to a residence, the
room’s metallic floor makes it unlike any office or residence. While the Court agrees that the UL
approval makes it extremely unlikely that a miner would be shocked by the portable heater, that
consideration is taken into account in assessing an appropriate penalty, not in determining
whether the standard was violated.

41 FMSHRC Page 470

standard. Douglas R. Rushford Trucking, 22 FMSHRC 598, 601(May 2000); see also Knight
Hawk Coal, LLC, 38 FMSHRC 2361, 2373 (Sept. 2016).
That said, the Court recognizes that there are two important considerations that must be
evaluated; the Secretary’s burden to provide sufficient evidence to support the proposed
assessment; and the Court’s obligation to explain the basis for any substantial divergence from
the proposed amount. The Commission has noted that:
[The] Secretary [ ] does bear the ‘burden’ before the Commission of providing
evidence sufficient in the Judge’s discretionary opinion to support the proposed
assessment under the penalty criteria [and that] [w]hen a violation is specially
assessed that obligation may be considerable. [On the other hand] the Secretary’s
proposed penalty cannot be glided over, as the Commission also stated, ‘Judges
must explain any substantial divergence between the penalty proposed by MSHA
and the penalty assessed by the Judge. … If a sufficient explanation for the
divergence is not provided, the credibility of the administrative scheme providing
for the increase or lowering of penalties after contest may be jeopardized by an
appearance of arbitrariness.
The American Coal Co., 38 FMSHRC 1987, 1993-1994 (Aug. 2016), citing Sellersburg Stone
Co., 5 FMSHRC 287, 293 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984).
Section 110(i) Penalty Factors As Applied to This Case
History of Previous Violations
Respondent’s Violation History was admitted without objection. Tr.72, Gov. Ex. C-9. It
reflects that Vulcan had been cited for this standard, but not at its Fort Payne Quarry. Id.
See also Tr. 106. The Secretary acknowledged that Vulcan’s “violations of the standard at issue
were on the low end.” Sec. Br. at 20. The Court concludes that the history of previous violations
of this sort at this mine is minimal.
Good Faith Abatement
The parties stipulated that Vulcan demonstrated good faith in attempting to achieve rapid
compliance after notification of a violation. Sec. Br. at 20.
Operator’s Ability to Remain in Business
There has not been any assertion by Vulcan that the Secretary’s proposed assessment of a
civil penalty of $118.00 will affect its ability to remain in business. The Respondent did not raise
this assertion in its post-hearing briefs and the Court concludes that a penalty of the amount
proposed would not affect the Respondent’s ability to remain in business.

41 FMSHRC Page 471

Size of the Business
Vulcan is a large mine operator, with approximately 300 quarries nationwide. Tr. 6-7.
Negligence
Without endorsing his view, the Secretary declares that “[l]ow negligence is appropriate
when ‘[t]he operator knew or should have known of the violative condition or practice, but there
are considerable mitigating circumstances.’” […] Inspector White testified that he evaluated the
negligence as low because “no one had reported a safety hazard and [told the managers], [w]e’ve
got a heater that’s not in compliance [and] the management [Jeff Dean, Vulcan’s foreman and
George Grguric, Vulcan’s plant manager] was not aware of either […] the requirement [that the
heater be grounded or provided with equivalent protection] or the violation [of the cited
standard].” Sec. Br. at 21, citing Tr. 30, 63; Ex. C-2.
Gravity of the Violation
As the Secretary has noted, “[u]nder section 110(i) of the Mine Act, 30 U.S.C. §820(i),
the gravity penalty criterion ‘is often viewed in terms of the seriousness of the violation.’ [citing]
Consolidation Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996) […]The gravity analysis focuses
on factors such as the likelihood of injury, the severity of an injury if it occurs, and the number
of miners potentially affected. Here, Inspector White evaluated the likelihood of injury as
“unlikely” because at the time of the inspection, no one was in the control room; the heater was
not turned on; and it was 87 degrees outside. Tr. 46-47; Ex. C-2. He assessed the injury expected
as lost workdays or restricted duty due to a miner receiving electrical burns or falling while
recoiling from shock. Tr. 49; Ex. C-2. He noted that the exact injury would depend on a variety
of factors and circumstances. Tr. 49. He assessed the number of persons affected as one because
“[i]t’s a likely thing that only person would be hurt. Even if it’s crowded in [the control room].”
Tr. 50, Sec. Br. at 20-21.
Conclusion
Of the six penalty factors set forth in Section 110(i), the negligence and gravity are the
most significant considerations, and they point to a reduced penalty from that proposed by the
Secretary. Taking into account all of the preceding findings and observations, the Court
concludes that while the violation occurred, it presented a very “unlikely” risk of an expected
injury of lost workdays or restricted duty. The Court also finds that one person would be affected
by the violation, the violation was not significant and substantial, and that the negligence of the
operator was less than moderate, approaching low negligence. In light of the inherent power of
Commission Judges to independently assess penalties based on their reasoned judgment of all the
facts, the Court finds that given the Secretary’s admission that this was a non S&S violation,
unlikely to occur, of low negligence, and the Court’s independent determination that the
negligence was less than low, approaching no negligence, in this particular near-office

41 FMSHRC Page 472

environment, and that it was unlikely in the extreme to occur in that environment, particularly
considering the rigorous UL requirements for the heater, independently support the Court’s
imposition of a civil penalty of $59.00 for this violation.
ORDER
It is hereby ORDERED that Respondent is ORDERED to pay a civil penalty in the total
amount of $59.00 (“fifty-nine” dollars) within 30 days of this decision.20

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

Distribution:
Thomas J. O’Donnell Jr., Conference & Litigation Representative, MSHA, 1030 London Drive,
Suite 400, Birmingham, AL 35211
Leslie Paul Brody, Esq., Office of Solicitor, U.S. Department of Labor, 61 Forsyth Street, SW,
Room 7T10, Atlanta, GA 30303
Misty Hillis, Vulcan Construction Materials, LLC, 1200 Urban Center Drive, Birmingham, AL
35242

20

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

41 FMSHRC Page 473

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9900 / FAX: 202-434-9954

August 2, 2019
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2018-277-M
A.C. No. 21-00831-465235

v.
NORTHSHORE MINING COMPANY,
Respondent

Mine: Northshore Mining Company

DECISION
Appearances:

Barbara Villalobos, Esq., Office of the Solicitor, U.S. Department of
Labor, Chicago, Illinois, for Petitioner;
Arthur Wolfson, Esq., Fisher & Phillips, Pittsburgh, Pennsylvania, for
Respondent.

Before:

Judge Bulluck

This case is before me upon a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”) on behalf of the Mine Safety and Health Administration
(“MSHA”) against Northshore Mining Company (“Northshore”), pursuant to section 105(d) of
the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). The
Secretary seeks a civil penalty in the amount of $132.00 for an alleged violation of section
103(a) of the Mine Act, 30 U.S.C. § 813(a).
A hearing was held in Duluth, Minnesota. The following issues are before me: (1)
whether Northshore violated section 103(a) of the Mine Act; and, if so (2) the degree of
negligence to which the violation was attributable; and (3) the appropriate penalty. The parties’
Post-hearing Briefs are of record.
For the reasons set forth below, I AFFIRM the citation, as issued, and assess a penalty
against Respondent.

41 FMSHRC Page 474

I. Joint Stipulations
The parties have stipulated as follows:
1. Northshore Mining Company was an “operator” as defined in section 3(d) of the Federal
Mine Safety and Health Act of 1977, as amended (hereinafter “the Mine Act”), 30 U.S.C.
§ 803(d), at the time the citation at issue in this proceeding was issued.
2. Northshore Mining Company operated the Northshore Mining Company which was
located in Silver Bay, Lake County, Minnesota at the time the subject citation was issued.
3. Northshore Mining Company is subject to the jurisdiction of the Federal Mine Safety and
Health Act of 1977.
4. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designated Administrative Law Judge, pursuant to sections
105 and 113 of the Mine Act.
5. The individual whose signature appears in Block 22 of the citation at issue in this
proceeding was acting in his official capacity and as an authorized representative of the
Secretary of Labor when the citation was issued.
6. A duly authorized representative of the Secretary served the citation and termination of
the citation upon the agent of Respondent at the date and place stated, therein, as required
by the Mine Act, and the citation and termination may be admitted into evidence to
establish their issuance.
7. The total proposed penalty for the citation at issue ($132.00) will not affect Respondent’s
ability to continue in business.
8. The citation contained in Exhibit A attached to the Petition for Assessment of Penalty is
an authentic copy of the citation at issue in this proceeding, with all appropriate
modifications and terminations, if any.
Tr. 5-7.
II. Factual Background
Northshore operates an iron ore processing plant in Silver Bay, Minnesota. Jt. Stips. 2-3;
Tr. 74. The plant’s large concentrator building separates iron ore from waste materials. Tr. 7376. The concentrator department includes the concentrator, fourteen other buildings, and a
pipeline located along a seven-to-eight mile stretch leading to a tailings basin, where waste
material is collected. Tr. 76, 89-90.
Work at Northshore is divided into day and night shifts. Tr. 72. During both shifts, seven
employees are on duty in the concentrator department: six operations technicians and one control

41 FMSHRC Page 475

room operator. Tr. 74-75, 89. Concentrator employees communicate with one another on
personal radios set to a channel ordinarily used only by department employees. Tr. 83.
Concentrator control room operator Philip Goutermont and operations technician Jamie Gnerer
were working on the concentrator crew at the time of the inspection at issue. Tr. 71, 81-82, 88,
90-91.
On March 6, 2018, during the night shift, MSHA Inspector Terrance Norman arrived at
the Silver Bay plant to continue an ongoing E01 inspection. Tr. 21, 23, 81-82; Ex. P–2. The
regular practice at Northshore is to provide designated personnel who are available at the safety
office to escort MSHA inspectors. Tr. 109-10. However, when Norman arrived at approximately
4:00 a.m., the designated safety representative was off-duty. Tr. 23, 82, 114-15. Finding no one
at the safety office, Norman proceeded to the concentrator control room, introduced himself as
an MSHA inspector, and asked Goutermont to find him an escort. Tr. 23, 82. Goutermont made
an announcement over the department radio channel that someone was needed to go with MSHA
during an inspection. Tr. 83, 86. After completing the day’s inspection, Norman issued a citation
to Northshore for providing advance notice of an MSHA inspection to the plant. Tr. 29-30; Ex.
P–2.
III. Findings of Fact and Conclusions of Law
Inspector Norman issued 104(a) Citation No. 9380677 on March 6, 2018, alleging a
violation of section 103(a) of the Mine Act that had “no likelihood” to result in an injury or
illness, could not reasonably be expected to result in “lost workdays or restricted duty,” and was
caused by Northshore’s “moderate” negligence.1 Ex. P–2. The “Condition or Practice” is
described as follows:
On arrival to the Concentrators [sic] Control Room, the control
room operator announced over the plant wide radio system that
MSHA was in the control room and he needed someone to go with
the inspector, which gave everyone in the plant prior notice of a
[sic] inspection.
Ex. P–2. The citation was terminated on March 7, 2018, after Northshore issued a written policy
prohibiting radio announcements and instructing its miners to contact specific personnel to
secure mine escorts for MSHA inspectors. Ex. P–2.
A. Fact of Violation
In order to establish a violation of the Mine Act, the Secretary must prove that the
violation occurred “by a preponderance of the credible evidence.” Keystone Coal Mining Corp.,
17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11 FMSHRC 2148,
2152 (Nov. 1989)).
1

Section 103(a) of the Mine Act provides, in relevant part, that “[i]n carrying out the
requirements of this subsection, no advance notice of an inspection shall be provided to any
person . . . .” 30 U.S.C. § 813(a).

41 FMSHRC Page 476

The Secretary maintains that the prohibition on advance notice of MSHA inspections is
central to enforcement of the Mine Act, and that section 103(a) proscribes giving advance notice
to anyone for any reason, although “contacting a specific individual directly is an acceptable
means of obtaining an escort.” Sec’y Br. at 4, 7, 9, 10 (citing Topper Coal Co. Inc., 20
FMSHRC 344, 348 (Apr. 1998)). After advance notice has been provided, the Secretary
contends, neither operator correction of hazardous conditions nor MSHA’s issuance of citations
is relevant to whether a violation of section 103(a) has occurred. Sec’y Br. at 10. Finally, the
Secretary argues that Northshore had fair notice of the requirements of section 103(a). Sec’y Br.
at 14 (citing Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991)).2
Northshore contends that the Secretary must show that allegedly violative conduct was
intended to provide advance notice of an MSHA inspection, and that it had “the effect of actually
providing such advance notice.” Resp’t Br. at 6, 10. Northshore argues that Topper Coal and
KenAmerican Res., Inc. support its position that only effective and intentional advance notice of
an MSHA inspection is prohibited. Resp’t Br. at 10-13 (citing Topper Coal, 20 FMSHRC at 34849; KenAmerican Res., Inc., 38 FMSHRC 1943, 1943-49 (Aug. 2016) [hereinafter, KenAmerican
II]). It primarily rests its argument on two ALJ decisions that vacated section 103(a) citations.
See Resp’t Br. at 6-10 (citing KenAmerican Res., Inc., 40 FMSHRC 1544 (Dec. 2018) (ALJ) 3
[hereinafter, KenAmerican III], and Portable, Inc., 36 FMSHRC 3249 (Dec. 2014) (ALJ));
Resp’t Reply Br. at 6. Additionally, Northshore rejects any legal distinction between explicit and
ambiguous conduct with regard to section 103(a) violations. See Resp’t Br. at 6, 10, 12-13.
Inspector Terrance Norman came to MSHA in 2014, with thirteen years experience in the
mining industry. Tr. 20-22. Norman had previously inspected Northshore in 2015 and 2017. Tr.
59-60, 61-62. He testified that Goutermont “announced on the radio that MSHA was here and
[Goutermont] needed somebody to accompany [Norman] on an inspection.” Tr. 23. Norman
explained that he issued the citation because “[Goutermont] was giving pre-notification to the
miners inside the plant that MSHA was there and doing an inspection,” which provided “the
opportunity to correct a hazard out on the floor.” Tr. 25, 36. Norman also testified that a similar
incident had occurred on December 17, 2017 at a different location, the pelletizer control room,
where a miner announced MSHA’s presence on-site over the radio. Tr. 34, 62-63, 65-67; Ex. P–
3. He stated that, on the same day, he had informed hot side operations supervisor Jared Conboy
that the announcement was prohibited and that, on December 18, he had discussed procedures
for securing mine escorts with Scott Blood, area manager of safety and loss control. Tr. 34-35,
51, 65-67; Ex. P–3. Finally, Norman testified that MSHA inspections are timed so as to visit
Northshore during both shifts. Tr. 29.
Philip Goutermont has held the position of concentrator control room operator at
Northshore for almost 30 years. Tr. 70-71. He testified that he announced over the department
radio channel, “[W]e need someone to go with MSHA and inspect,” and that his radio
2

Northshore makes clear that it is not raising fair notice as a defense. Resp’t Reply Br. at
8. However, whether Northshore had a heightened awareness of its duty to comply with section
103(a) is addressed in the discussion of negligence.
3

KenAmerican III, decided on remand by the Commission of KenAmerican II, is
currently on appeal before the Commission.

41 FMSHRC Page 477

announcement did not indicate where MSHA was planning to inspect. Tr. 83, 86. Goutermont
also stated that over the course of his career, MSHA inspectors had come unescorted to the
control room “about a half dozen times,” and that he had previously made radio announcements
explicitly requesting MSHA escorts, without being cited. Tr. 80-81.
Operations technician Jamie Gnerer testified that she heard Goutermont’s radio
announcement, responded to it, and proceeded to the concentrator control room to escort
Norman. Tr. 92. Gnerer also testified that she did not know what areas of the plant would be
inspected when the team left the control room. Tr. 92-93.
Jared Conboy and safety representative Luke Thun both testified that, in order to abate
citations during prior MSHA inspections, they had routinely made radio announcements that
mentioned MSHA, and that such conduct was not cited. Tr. 100-102, 120-121. Conboy
confirmed that, in December of 2017, he and Norman had discussed the language used in radio
announcements requesting MSHA escorts. Tr. 103-06. Conboy also testified that, once over the
course of each inspection cycle, MSHA makes a night shift inspection. Tr. 110.
Scott Blood testified that he became aware of the December 2017 incident only after
Norman issued the March 2018 citation. Tr. 134. He denied having had a conversation with
Norman in December of 2017 about the pelletizer control room incident. Tr. 134.
The Commission has found that explicit “warning of the inspection clearly is sufficient
to establish a violation.” Topper Coal, 20 FMSHRC at 348. Additionally, intent can be relevant
to the fact of violation where conduct is ambiguous. See KenAmerican II, 38 FMSHRC at 194849. The plain language of section 103(a) “focuses on whether advance notice of an inspection
was in fact provided,” and its purpose is “to ensure the efficacy of inspections by preventing
operators from concealing hazards before an inspector can observe them.” Id. at 1949 (citing S.
Rep. No. 95-181, at 27 (1977)).
In the instant case, the evidence establishes that, at Norman’s behest upon entering the
concentrator control room, Goutermont announced to the entire concentrator crew over the
department radio channel that an escort was needed for an MSHA inspection.
Northshore’s argument that “intent” and “effect” are elements required to prove section
103(a) violations finds no support in Topper Coal and KenAmerican II. In Topper Coal, the
Commission affirmed a violation of section 103(a) where the president of the mine, above
ground at the time, had telephoned a miner underground and said that “two federal inspectors”
were in the mine and he wanted the miners to “watch out and be careful.” 20 FMSHRC at 346
(quoting Topper Coal Co., Inc., 17 FMSHRC 945, 946 (June 1995) (ALJ)). According to
Northshore, the Commission’s finding that the conduct in question constituted a “warning of the
inspection” is evidence that only advance notice that effectively impedes an inspection is
prohibited. Resp’t Br. at n.13 (citing Topper Coal, 20 FMSHRC at 348). However, the
Commission’s use of the word “warning” relates to the effectiveness of the communication in
conveying information, rather than the effectiveness of the communication in impeding the
inspection. See Topper Coal, 20 FMSHRC at 348. Northshore also contends that Topper Coal
supports an intent requirement for establishing section 103(a) violations. Resp’t Br. at 10-11;

41 FMSHRC Page 478

Resp’t Reply Br. at 4. While it is true, as Northshore points out, that Topper Coal “does not
establish a point of law that violative advance notice may occur regardless of intent,” that case
establishes neither an intent nor an effect requirement. See Resp’t Reply Br. at 4.
The facts in KenAmerican II involve a contested exchange wherein miners underground
asked if there was “company outside,” and a dispatcher may have responded “yeah. I think there
is.” 38 FMSHRC at 1944. The Commission found that the judge erred by granting summary
decision for KenAmerican because there remained a “genuine issue of material fact” as to “the
meaning of the communication.” Id. at 1948. Northshore argues that “nothing in the decision
limits consideration of intent only to statements that are ambiguous.” Resp’t Br. at 12. However,
while the Commission stated that intent can be considered in a summary decision where it is an
“essential element” of the claim, its discussion of the Secretary’s burden in proving section
103(a) violations merely indicates that intent can be relevant where the conduct at issue is
ambiguous. KenAmerican II, 38 FMSHRC at 1947. The Commission did not establish intent as
an element of all section 103(a) violations.
Likewise, the ALJ decisions that Northshore cites do not establish that intent and effect
are requirements for establishing section 103(a) violations. In KenAmerican III, the judge
decided the case on credibility grounds that were directly tied to its unique facts, finding that the
miner who was asked whether there was “company outside” had responded “I don’t know,” a
statement that did not constitute advance notice. 40 FMSHRC at 1552. The facts in this case,
involving a department-wide announcement, are entirely distinguishable.
In Portable, the judge found that communications with a single miner regarding an
MSHA inspection were intended to secure an escort, and that there was no evidence that the
operator had taken corrective actions after notice had been provided. 36 FMSHRC at 3257-58.
Again, at issue here, by contrast, is the effect of communication to the entire concentrator crew.
Ex. P–2.
The Commission, establishing in Topper Coal that “warning of the inspection clearly is
sufficient to establish a violation,” indicated that explicit advance notice of an MSHA inspection,
once conveyed, is sufficient to constitute a violation, regardless of intended meaning or whether
advance notice actually impeded the inspection. 20 FMSHRC at 348; see also KenAmerican II,
38 FMSHRC at 1949 (“[The] plain language [of section 103(a)] . . . focuses on whether advance
notice of an inspection was in fact provided”). Read together, Topper Coal and KenAmerican II
establish that intent is relevant where ambiguous conduct is involved, but where the meaning of
the conveyance is clear, no intent inquiry is necessary to determine whether advance notice
occurred. See Topper Coal, 20 FMSHRC at 348; KenAmerican II, 38 FMSHRC at 1948-1951.
This reading of section 103(a) is consistent with the enforcement goals of the Mine Act.
Congress viewed the prohibition on advance notice as a crucial part of MSHA’s “broad right-ofentry” to make unannounced inspections, noting “the notorious ease with which many safety or
health hazards may be concealed if advance warning of inspection is obtained.” S. Rep. No. 95181, at 27 (1977). The unequivocal language of section 103(a) and its related criminal provision
demonstrate how seriously Congress viewed the consequences of advance notice. See § 110(e),
30 U.S.C. § 820(e).

41 FMSHRC Page 479

In this case, the communication at issue was explicit, “[W]e need someone to go with
MSHA and inspect,” and the meaning of the message to the entire concentrator department was
clear, i.e., that MSHA was on-site for an inspection. Based on these facts, I find that advance
notice of the MSHA inspection was provided to the plant on March 6, 2018 and, accordingly, the
Secretary has established a violation of section 103(a).
C. Negligence
The Secretary argues that moderate negligence is appropriate because Northshore had
been cautioned previously about violating section 103(a) in December of 2017. Sec’y Br. at 1112. Norman and supervisor Conboy establish that they had discussed advance notice following
the pelletizer control room incident in December of 2017. Putting their conversation in context,
i.e., following a radio call announcing MSHA’s presence during the inspection, it is clear that
Northshore’s awareness of prohibited advance notice was, or should have been, heightened a
mere three months prior to the instant violation, and is an aggravating factor. However,
Goutermont, Conboy, and Thun’s collective, uncontroverted testimony of inconsistent MSHA
enforcement of section 103(a) constitutes a mitigating factor. See Mach Mining, LLC, 809 F.3d
1259, 1265-66 (D.C. Cir. 2016); U.S. Steel Mining Co., Inc., 6 FMSHRC 2305, 2310 (Oct.
1984). Given these considerations, I find that Northshore was moderately negligent in violating
the advance notice prohibition of section 103(a).
IV. Penalty
While the Secretary has proposed a civil penalty of $132.00, the judge must
independently determine the appropriate assessment by proper consideration of the six penalty
criteria set forth in section 110(i) of the Mine Act, 30 U.S.C. § 820(i). See Sellersburg Co., 5
FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d 1147 (7th Cir. 1984).
Applying the penalty criteria, and based on a review of MSHA’s online records, I find
that Northshore is a medium-sized operator, with an overall history of violations that is neither a
mitigating nor aggravating factor in assessing the appropriate penalty.4 The record indicates that
Northshore demonstrated good faith in achieving rapid compliance after notice of the violation.
Ex. P–2. Northshore has stipulated that imposition of the proposed penalty will not adversely
affect its ability to remain in business. Jt. Stip. 7.
The remaining criteria involve consideration of the gravity of the violation and
Northshore’s negligence in its commission. Because providing advance notice compromises the
integrity of an inspection and endangers the health and safety of miners, this is a serious
violation, and I have found that it was caused by Northshore’s moderate negligence. Therefore,
considering my findings as to the six penalty criteria, I find that a penalty of $132.00, as
proposed by the Secretary, is appropriate.

4

In the fifteen months preceding the inspection, the operator had been cited for 240
violations, unrelated to the standard at issue in this proceeding.

41 FMSHRC Page 480

ORDER
WHEREFORE, it is ORDERED that Citation No. 9380677 is AFFIRMED, and that
Northshore Mining Company PAY a civil penalty of $132.00 within thirty days of this
Decision.5 ACCORDINGLY, this case is DISMISSED.

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

Distribution:
Barbara Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St.,
8th Fl., Chicago, IL, 60604
Arthur Wolfson, Esq., Fisher & Phillips, 301 Grant St., One Oxford Center, Ste. 4300,
Pittsburgh, PA, 15219

5

Payment should be sent to: Mine Safety and Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket
number and A.C. number.

41 FMSHRC Page 481

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004
Telephone No.: (202) 434-9900 / Fax No.: (202) 434-9949

August 16, 2019
CONTEST PROCEEDING

KNIGHT HAWK COAL, LLC,
Contestant

Docket No. LAKE 2019-0087-R
Citation No. 9035600; 11/14/2018

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

Mine: Prairie Eagle – Underground
Mine ID: 11-03147

DECISION AND ORDER
Appearances:

R. Henry Moore, Jackson Kelly PLLC, Pittsburgh, PA for the Contestant1
Travis W. Gosselin, Office of the Solicitor, U.S. Department of Labor,
Chicago, IL for the Respondent

Before:

Judge McCarthy

This proceeding is before the undersigned on a Notice of Contest and Motion to Expedite
filed November 15, 2018, by Knight Hawk Coal, LLC, pursuant to § 105(d) of the Federal Mine
Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(d) (“Mine Act”) and Commission
Procedural Rule 20(b). The contest challenges technical Citation No. 9035600-01, as modified,
issued to Contestant on November 14, 2018 for operating without an approved ventilation plan
under 30 C.F.R. § 75.370(a)(1), which states that “[t]he operator shall develop and follow a
ventilation plan approved by the district manager. The plan shall be designed to control methane
and respirable dust and shall be suitable to the conditions and mining systems at the mine.”
A hearing was held in St. Louis, Missouri, on March 28-29 and April 1, 2019. During the
hearing, the parties offered lay and expert witness testimony and documentary evidence.2
Witnesses were sequestered. The parties submitted post-hearing and reply briefs, the latest of
which was filed on June 7, 2019.
1

Although Mr. Moore was with Jackson Kelly, PLLC, when the contest was filed, he is
currently at Fisher Phillips LLP, Pittsburgh, PA.
2

In this decision, “Tr.” refers to the hearing transcript, “P. Ex. #” refers to the
Contestant’s exhibits, and “G. Ex. #” refers to the Respondent’s exhibits. P. Exs. 13-28, 30, and
34-40, and G. Exs. 1-12 and 14-18, were received into evidence. Tr. 281-82.

41 FMSHRC Page 482

Based on a careful review of the record, including the parties’ post-hearing and reply
briefs, and observation of the demeanor of witnesses,3 the undersigned makes the following
findings of fact and conclusions of the law and orders that the technical citation be vacated and
the previously approved ventilation plan be reinstated.
.
I. STIPULATIONS
The parties submitted the following stipulations, which have been accepted into the
record:
1.
The Prairie Eagle Underground Mine (PEUG) is a “mine” as that term is defined
in Section 3(h) of the Mine Act.
2.
Knight Hawk is engaged in mine operations in the United States, and its mining
operations affect[ed] interstate commerce.
3.

Knight Hawk is the operator of the PEUG, MSHA ID No. 11-03147.

4.
Knight Hawk is subject to the jurisdiction of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. §801 et seq.
5.

The Administrative Law Judge has jurisdiction in this matter.

6.
Citation No. 8429603 was issued to the mine operator on November 14, 2018, and
subsequently modified to correct the citation number – Citation No. 9035600.
7.
The subject Citation was properly served by a duly authorized representative of
the Secretary upon an agent of Knight Hawk on the date and place stated therein, and may be
admitted into evidence for the purposes of establishing its issuance.
8.

The Prairie Eagle Underground Mine mines coal utilizing continuous miners.

9.
The PEUG began production in August 2006 with a single MMU. Since that time,
it has implemented four (4) additional MMU’s; each of them going through the extended cut
evaluation process where they began at 20-foot cuts and worked their way to 40-foot cuts. These
evaluations, as outlined in [Procedure Instruction Letter] I12-V-11 (Reissue of I10-V-09, I08-V03, I06-V-6), consisted of a mine history evaluation, plan provisions, training requirements, onsite evaluation, ventilation plan approval, and supplemental information pertaining to cut depth,
ventilation, respirable dust, methane, and roof support. All five MMU’s operate with extended
3

In evaluating testimony, the undersigned has taken into consideration the nature of the
questioning and testimony given in response, the demeanor of the witnesses, their evasiveness or
forthrightness, their interests in this matter, the inherent probability of their testimony in light of
other events, corroboration or lack of corroboration for their testimony, their experience and
credentials, and their consistency or lack of consistency vis-à-vis their own testimony and the
testimony of other witnesses.

41 FMSHRC Page 483

cut plans and each of them conducted perimeter mining. Specifically, each extended cut plan,
including perimeter mining, was approved by a District Manager, including the current one. The
Ventilation Plan for each MMU is identical.
10.
[Procedure Instruction Letter] 112-V-11 is marked as [G. Ex. 14] and may be
admitted into evidence.
11.
Program Policy Letter P13-V-12 is marked as [G. Ex. 13] and may be admitted
into evidence.
12.

Knight Hawk has conducted perimeter mining since January 2007.

13.
During the initial startup of the mine, the Roof Control Plan and the Ventilation
Plan [were] subject to an initial evaluation of both plans, including perimeter mining. That
continued for 22 months for the Roof Control Plan and 41 months for the Ventilation Plan.
14.
Roof bolting is generally eliminated during perimeter mining because after the
entry is mined and the continuous miner withdrawn, it is barricaded off. Some limited roof
bolting is still performed during perimeter mining in approaches to evaluation points. Per the
approved roof control and ventilation plans, installation of four props/jacks [were] required prior
to beginning each perimeter cut and the props/jacks must be left in place or removed remotely
after a cut is completed.
15.
Specifically, each MMU began at the following date and the extended cut plan,
including perimeter mining, was approved by the following District Manager on the following
dates:
* MMU 002 – June 2008, Acting DM Mary Jo Bishop (March 1, 2010)
* MMU 003 – December 2011, DM Robert Simms (August 17, 2012)
* MMU 004 – July 2013, DM Robert Simms (December 9, 2013)
* MMU 005 – August 2017, DM Ronald Burns (September 27, 2017)
16.

The Roof Control Plan timeline is as follows:
*

01/26/06 – Conditional approval with no perimeter mining. MSHA stated, “an
in-mine evaluation, to evaluate the mine’s specific mining conditions and the
effectiveness of the plan in addressing those conditions will be required before
any such approval can be considered.” The plan expired 07/26/06.

*

07/31/06 – Extension of the conditional approval until 01/26/07.

*

01/18/07 – Received a conditional approval for perimeter mining and an
extension of the base plan; both until 07/18/07.

*

January 2007 – Perimeter Mining begins at PEUG.

*

07/02/07 – Knight Hawk requested, “Due to the extent of mining completed to
date, the multiple visitations/evaluation from Mr. Jeff Williams, and the

41 FMSHRC Page 484

successful implementation of the plan, we are hereby requesting removal of
the ‘conditional’ approval of the Roof Control Plan and that the plan be placed
into effect.”

17.

*

07/10/07 – Conditional approval extended another 6 months for further
evaluation until 01/18/08.

*

01/11/08 – Knight Hawk requested removal of the ‘conditional’ approval.

*

03/11/08 – Conditional approval extended until 05/12/08.

*

04/11/08 – Consolidated plan submitted as per MSHA request.

*

05/30/08 – Plan approved without the ‘conditional’ constraint; including
perimeter mining.

The Ventilation Plan timeline is as follows:
*

08/02/06 – Conditional approval with perimeter mining. The plan expired
11/03/06.

* 10/31/06 – Request to either remove the ‘conditional’ approval or extend the
date.
*

11/08/06 – Extension of the conditional approval until 02/03/07.

*

January 2007 – Perimeter Mining begins at PEUG.

* 01/29/07 – Request to either remove the ‘conditional’ approval or extend the
date.
*

02/01/07 – Extension of the conditional approval until 05/03/07.

* 05/02/07 – Request to either remove the ‘conditional’ approval or extend the
date.
*

05/02/07 – Extension of the conditional approval until 08/02/07.

* 07/23/07 – Request to either remove the ‘conditional’ approval or extend the
date.
*

08/04/07 – Extension of the conditional approval approved until l0/09/07.

* 10/02/07 – Request to either remove the ‘conditional’ approval or extend the
date.
*

12/28/07 – Extension of the conditional approval until 03/28/08.

* 03/17/08 – Request to either remove the ‘conditional’ approval or extend the
date.
*

04/11/08 – Consolidated plan submitted as per MSHA request. The same date
[Contestant] submitted a consolidated Roof Control Plan per MSHA’s request
as well. No approval received.

*

12/08/08 – Consolidated plan submitted as per MSHA request. No approval
received.

41 FMSHRC Page 485

*

11/12/09 – Consolidated plan submitted as per MSHA request.

*

03/01/10 – Plan approved without the ‘conditional’ constraint; including
perimeter mining.

18.
A typical Perimeter Mining Panel is 1 mile in length and 1,240 feet in width;
approximately 150 acres. It takes approximately 11 months to complete a Perimeter Mining
Panel and PEUG typically seals each panel within 30 days from completion of mining.
19.
At the request of District Manager Ronald Burns, on December 19, 2017, the
MSHA Pittsburgh Safety and Health Technology Center (“Tech Support”) performed an
evaluation of the bleeder system which includes areas where perimeter mining was conducted at
Prairie Eagle Underground on January 9-10, 2018. A report was prepared and submitted to the
District Manger on or about February 8, 2018 and is marked as [G. Ex. 1] and may be admitted
into evidence.
20.
Similar evaluations were requested by District Manager Burns at the Viper Mine
operated by ICG Illinois LLC and of the Gateway North Mine operated by Peabody Gateway
North Mining LLC and are marked as [P. Exs. 35 and 34] respectively and may be offered into
evidence at the hearing in this matter, subject to the objections outlined in the Secretary’s Motion
in Limine.[4]
21.
On January 29, 2018, Knight Hawk met with MSHA to discuss the preliminary
findings of Tech Support’s evaluation of the mine’s bleeder system. During that meeting[,]
District Manager Ronald W. Burns requested that Knight Hawk address the issues raised by
those preliminary findings.
22.
On March 7, 2018, Knight Hawk received a copy of Tech Support’s report. A
copy of the report is marked as [G. Ex. 1]. A copy of the analytical gas sampling results from the
Tech Support evaluation is marked as [G. Ex. 16] and may be admitted into evidence.
23.
Knight Hawk’s ventilation plan including perimeter mining was last approved on
February 15, 2015. A copy is marked as [G. Ex. 12] and may be admitted into evidence.
24.
On March 13, 2018, Thomas Hasenstab[, a mining engineer and the current
superintendent for Knight Hawk,] sent a letter to Mr. Burns outlining Knight Hawk’s response
concerning perimeter mining. Such letter is marked as [G. Ex. 2] and may be admitted into
evidence.
25.
On April 12, 2018, Mr. Burns wrote Mr. Hasenstab directing Knight Hawk to
revise its ventilation plan. Such letter is marked as [G. Ex. 3] and may be admitted into evidence.

4

The undersigned denied the Secretary’s Motion in Limine. Order Denying the
Secretary’s Motion in Limine, 41 FMSHRC 217 (Mar. 2019) (ALJ).

41 FMSHRC Page 486

26.
On April 22, 2018, Mr. Hasenstab sent a letter to Mr. Burns submitting a response
to his letter of April 12, 2018 with an attached copy of Knight Hawk’s March 13, 2018 letter.
Such letter is marked as [G. Ex. 4] and may be admitted into evidence.
27.
On May 3, 2018, Mr. Burns wrote Mr. Hasenstab as a follow-up to a conference
call on April 30, 2018. Such letter is marked as [G. Ex. 5] and may be admitted into evidence.
28.
On May 15, 2018, Mr. Hasenstab wrote Mr. Burns responding to his May 3, 2018
letter. Such letter is marked as [G. Ex. 6] and may be admitted into evidence.
29.
On June 7, 2018, Mr. Burns wrote Mr. Hasenstab responding to his letter dated
May 15, 2018. Such letter is marked as [G. Ex. 7] and may be admitted into evidence.
30.
On July 5, 2018, Mr. Hasenstab wrote Mr. Burns in response to his letter of June
7, 2018. Such letter is marked as [G. Ex. 8] and may be admitted into evidence.
31.
On October 22, 2018, Mr. Burns wrote Mr. Hasenstab in response to his July 5,
2018 letter. Such letter is marked as [G. Ex. 9] and may be admitted into evidence.
32.
On November 14, 2018, Mr. Burns wrote Mr. Hasenstab revoking Knight Hawk’s
approved ventilation plan. Such letter is marked as [G. Ex. 10] and may be admitted into
evidence.
33.
In order to abate the Citation and to continue to operate[,] Knight Hawk submitted
a ventilation plan which MSHA approved. A copy of such Interim Plan is marked as [G. Ex. 15]
and may be admitted into evidence.
34.
Citation No. 9035600 was issued on November 14, 2018, pursuant to section
104(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 814(a) alleging a
violation of Section 75.370(a)(1).
35.
follows:

Under the heading and caption “Condition or Practice” the Citation alleges as

The mine operator is mining without a ventilation plan approved by the District
Manager. The operator’s plan is revoked on this date because it fails to address
existing, identified deficiencies. The parties’ negotiations have reached impasse.
In numerous discussions, and by letters dated April 12, May 3, June 7, and
October 22, MSHA advised Knight Hawk Coal of concerns and of certain issues
required to be addressed in its ventilation plan. Specifically:
1. The designs of the typical bleeder system does not control the air direction
through all individual “blocks”, including the air direction in the pillared area
within each “block”. [30 CFR Sections 75.334(b)(1), 75.334(c)(4), 75.371(bb),
and 75.372(b)(9).]

41 FMSHRC Page 487

Section 75.334 requires a bleeder system to be used to control the air passing
through the area and to continuously dilute and move methane-air mixtures and
other gases….Both conditions must be addressed in the bleeder system design.
The bleeder system in this case is not controlling the air in an effective manner as
determined by the ventilation survey conducted in January 2018.
Effective ventilation requires sufficient air movement in appropriate directions.
The ventilating device intended to control air movement through the area did not
effectively control the air movement.
Air movement was not perceptible in portions of the pillared areas, including
many extended-depth perimeter cuts. The air direction through the rooms from
which the perimeter cuts were mined w[as] not always consistent throughout the
length of the room, nor with the net direction of airflow through the block. No
perceptible air movement was observed in approximately 57 of the 138 perimeter
cuts examined. A few of the bolted perimeter cuts were examined in greater
detail.5 Movement of air was observed in approximately 57 of the 138 perimeter
cuts examined. A few of the bolted perimeter cuts were examined in greater
detail. Movement of air was detected in parts of some of these cuts near the
adjacent rooms, but not near the faces. Air movement was not perceptible in some
perimeter cuts in which air flowed past the front of the cut. Where air movement
was detected in perimeter cuts, it appeared to be intermittent and/or the result of
eddy currents created by air flowing past the front of the cut, rather than the result
of ventilation control devices directing airflow into the perimeter cuts.
Observations indicated the stronger the air flowing past the front of the cut, the
more pronounced the movement of air at the test location within the perimeter cut.
Movement of air caused by eddy currents for which no tests could practically be
conducted in all the perimeter cuts (some were not accessible due to their location
with respect to accessible areas) is not considered [an] appropriate or reliable
means to control air movement.
Air movement was not adequately controlled through all sets of bleeder entries.
Direction of air movement was not uniformly consistent in adjacent bleeder
entries within a block or throughout the entire length of individual bleeder entries.
Air moved in opposing direction across an individual bleeder entry at several
locations. No perceptible air movement was observed in portions of bleeder
entries in several locations. The direction of the net airflow through many blocks
was difficult to discern; in some blocks it could not be determined due to
inconsistent airflow direction. Tests for airflow directions using chemical smoke
in the rooms across the front and back of each completed block did not
consistently determine the direction of airflow through the block. Comparisons of
air quantity measurements between blocks (in the cut-through connections and in
the former section entries) were not always conclusive in determining air
5

In each block, a single perimeter cut was bolted. Tr. 77.

41 FMSHRC Page 488

direction within a block due to the net flow of air through the block being less
than reasonable inaccuracies in air quantity measurements.
2. The method to control air movement to ventilate the unbolted extended-depth
perimeter cuts within the pillared area is not provided. The extended cuts are part
of the pillared area within the worked-out area, and the air must be controlled to
ensure effective ventilation of the extended-depth cuts. [30 CFR Sections
75.334(b)(1), 75.334(c)(4), 75.371(bb), and 75.372(b)(9)]
3. The air direction through all individual “blocks”, including the air direction in
the pillared area within each “block”, is not shown in the ventilation plan
drawings or on the ventilation map. [30 CFR Sections 75.364(a)(2)(iii) and
75.372(b)(9)]
The direction of airflow through bleeder entries and pillared areas, as well as at
evaluation point (EP) locations, must be defined to determine whether a proposed
means of evaluation will result in proper evaluation of the effectiveness of the
bleeder system, including the pillared areas. Definition of the proper direction of
airflow through bleeder entries and pillared areas, as well as at EP locations, also
is necessary for the mine examiner to determine if air is moving in the proper
direction while conducting tests during the weekly examination to evaluate the
effectiveness of the bleeder system.
4. The air direction at EP locations is not shown in the ventilation plan drawings
or on the ventilation map. [30 CFR Sections 75.364(a)(2)(iii), 75.371(y),
75.371(z), and 75.372(b)(9)]
The direction of airflow through bleeder entries and pillared areas, as well as at
EP locations, is necessary to determine whether a proposed means of evaluation
results is proper evaluation of the effectiveness of the bleeder system. Definition
of the proper direction of airflow through bleeder entries and pillared areas, as
well as at EP locations, is necessary for the mine examiner to determine if air is
moving the proper direction while conducting tests during the weekly
examination to evaluate the effectiveness of the bleeder system.
5. The specified means of evaluation of the worked-out area does not provide
sufficient information to determine the effectiveness of the bleeder system,
including (a) whether air was moving in the proper direction through all “blocks,”
including the bleeder entries and pillared areas in each “block”; (b) the means to
reasonably assure ventilation of the extended-depth portions of the pillared areas;
or (c) the effectiveness of ventilation through the worked-out area. [30 CFR
Sections 75.334, 75.364(a)(2)(iii), 75.364(a)(2)(iv), 75.371(y), and 75.371(z)]
In letters dated April 22, May 15, and July 5, 2018, Knight Hawk Coal failed to
provide adequate responses to MSHA’s concerns. In MSHA’s October 22, 2018
letter, Knight Hawk Coal was informed of the district manager’s intent to revoke
the ventilation plan if the stated deficiencies were not addressed.

41 FMSHRC Page 489

Standard 75.370(a)(1) was cited 22 times in two years at mine 1103147 (22 to the
operator, 0 to a contractor).
36.
The Citation was terminated on November 13, 2018. A copy of such Citation is
marked as [G. Ex. 11] and may be admitted into evidence.
37.
The parties have identified [G. Exs. 1-20] for the Secretary and [P. Exs. 1-39] for
Knight Hawk and such exhibits may be offered into evidence without objection except [P. Exs.
34-35 and G. Exs. 19-20].
Jt. Ex. 1.
II. FINDINGS OF FACT
At Prairie Eagle Underground Mine (“PEUG” or “mine”), Knight Hawk conducted
perimeter mining—a form of second coal mining6 where a series of extended-depth cuts7 are
made around the perimeter of a block, including the area between blocks. Perimeter mining
involves the reduction in pillars.8
Perimeter mining developed in Illinois where a high percentage of the land on the surface
of underground mines is prime farmland. P. Ex. 37 at 1. As a result, Illinois has strict limitations
on subsidence in mining. Id.9 Perimeter mining has been used since at least the 1990s. Id. at 2.
At the mine, each block consists of several rooms.10 Once the rooms are mined out
through continuous, advance mining, cuts are made into the solid coal around the perimeter of
the block. These perimeter cuts are unsupported and contain no permanent roof supports, except
6

Hasenstab testified that second mining is also known as retreat mining. Tr. 339; see
also, tr. at 337 (“I agree that perimeter mining is second mining.”).
7

If perimeter cuts measure more than 20 feet from the nearest row of permanent roof
supports, they are considered extended-depth cuts. Tr. 75.
8

The Dictionary of Mining, Minerals, and Related Terms (2d ed. 1997) defines “pillar”
as “a column of coal . . . left to support the overlying strata or hanging wall in a mine.”
Hasenstab credibly testified that the areas between the blocks were a pillar. Tr. 334-35 (“[W]e all
have agreed [it] is a pillar, albeit a very large pillar, and we are partially recovering from that
pillar.”).
9

The Dictionary of Mining, Minerals, and Related Terms (2d ed. 1997) defines
“subsidence” as “[t]he sudden sinking or gradual downward settling of the Earth’s surface with
little or no horizontal motion. . . . Subsidence may be caused . . . by human activity such as
subsurface mining or the pumping of oil or groundwater.”
10

The parties presented differing and contradictory evidence as to the precise definition
of a room. Compare G. Ex. 1 at 5 (describing multiple rooms within a single block) with Tr. 357
(“A block is a room.”). However, the precise definition of a room is not material to this Decision.

41 FMSHRC Page 490

for two cuts per block that are bolted in order to maintain access for examination of the cutthrough connection that will join a subsequent block. G. Ex. 1 at 5-7.
On March 1, 2010, MSHA approved a ventilation plan for the mine, without conditions.
Jt. Ex. 1, ¶17. The ventilation plan included 40-foot, extended-cut perimeter mining. G. Ex. 12 at
38. The ventilation plan required a bleeder system to continuously dilute and move methane-air
mixtures and other gases, dusts, and fumes from a worked-out area away from active workings
and into a return air course or to the surface of the mine. Tr. 83, 325; see 30 C.F.R.
§ 75.334(b)(1). The approved ventilation plan stated that it “contains the minimum ventilation
system designed to control methane and respirable dust . . . in accordance with 30 C.F.R.
§ 75.370. The methods and practices are considered to be suitable for the mining systems
employed at this mine, and upon [approval], shall be followed until such time that a revised
method or methods are submitted for review and approved for use by the MSHA District
Manager.” G. Ex. 12 at 1.
Under the ventilation plan, the bleeder system consisted of a single bleeder entry into
each room and a bleeder connector—connecting the bleeder entry to the mined out area—as well
as stoppings and curtains to control the airflow through the area. Tr. 500; see generally G.
Ex. 12.11 In order to evaluate the effectiveness of the bleeder system, the ventilation plan
included evaluation points (“EPs”). Tr. 320; P. Ex. 30 at 9. Examination of the bleeder system
involved traveling in each block to EPs to test the concentrations of methane and oxygen as well
as the direction and quality of airflow at the EPs. Tr. 319-21; P. Ex. 30 at 8, 9; see 30 C.F.R.
§ 75.364(a)(2)(iii).
Although MSHA approved the ventilation plan in 2010, former District 8 supervising
mining engineer and ventilation supervisor, Mark Eslinger,12 credibly testified that “District 8
want[ed] to get rid of perimeter mining.” Tr. 416. Eslinger testified about multiple occasions
since 2010 where MSHA employees of District 8 expressed the view that District 8 was
attempting to “get rid” of perimeter mining, including conversations that Eslinger had with Stan
Reider, an engineer in District 8, and Doug Herndon, the District 8 Roof Control Supervisor,
who told Eslinger that District 8 was “going to say [perimeter mining]’s illegal.” Tr. 417.
Eslinger also credibly testified that he served a 90-day detail in 2001 in Arlington, Virginia,
11

Although Dennis Beiter, Respondent’s expert (infra note 16), testified that there were
up to five bleeder entries into a room, the undersigned does not credit this testimony. Tr. 61-63.
Beiter equivocated and was evasive on this point, stating that some of what he identified as
bleeder entries “are not necessarily called bleeder entries, but they function as bleeder entries.”
Tr. at 61. Beiter’s testimony also relies on the definition of bleeder entry from Policy P13-V-12,
discussed further below in Section III.C. As explained below, Policy P13-V-12 improperly made
a substantive change to regulations. Beiter’s reliance on Policy P13-V-12 further indicates the
unreliability of Beiter’s testimony on this point.
12

Eslinger worked at MSHA or its predecessor agency for 38 years. Based on his
experience as an MSHA ventilation supervisor, registered professional engineer, committee
member that rewrote subpart D (the §75.300 series) of the MSHA ventilation regulations from
1983 through the final rule in 1996, Eslinger was qualified, absent objection, as an expert witness
in mine ventilation and regulation for the Contestant. Tr. 399-410.

41 FMSHRC Page 491

where he had discussions that led him to believe “that people in MSHA headquarters want to get
rid of perimeter mining.” Tr. 444. When pressed for names on extended cross-examination by
the Secretary, Eslinger credibly testified that “I have had discussions with Kevin Stricklin[, the
Administrator for Coal Mine Health and Safety (Tr. 470)] and he did not seem to be in favor of
perimeter mining.” Tr. 445. On the other hand, Thomas Hasenstab, a mining engineer and the
current superintendent for Knight Hawk, testified that he did not think that District Manager
Ronald Burns was trying to eliminate perimeter mining (Tr. 354), and Burns testified that he
“ha[d] not told anybody that [he’s] trying to keep them from doing perimeter mining” (Tr. 212).
The undersigned discounts this testimony from Hasenstab and Burns in light of the motivations
of the witnesses and the totality of the evidence in the record. In his role as the superintendent for
Knight Hawk, Hasenstab regularly interacts with District 8 and must maintain an ongoing
relationship with its District Manager. Furthermore, it is irrelevant what Hasenstab thinks or
Burns may have said; the important consideration is the actions, not the words, of MSHA and
District Manager Burns.
On December 30, 2013, after the approval of the mine’s ventilation plan, Stricklin issued
Program Policy Letter No. P13-V-12 (“PPL P13-V-12”) “to clarify and improve the examination
and evaluation of bleeder systems by mine operators.” G. Ex. 13 at 1. PPL P13-V-12 states that
“[i]t is anticipated that District Managers would not suggest changes to the relevant portions of
existing approved ventilation plans absent conditions affecting the safety or health of miners that
arise following the issuance and effective date of” PPL P13-V-12. Id. PPL P13-V-12 defines a
bleeder system to “include[] the area from which pillars are wholly or partially recovered,
bleeder entries, bleeder connectors, and all associated ventilation control devices that control the
air movement through the area.” Id. at 2. PPL P13-V-12 also states that
some entries and/or rooms surrounding the pillared area may not
have been routinely identified as traveled bleeder entries. These
entries and/or rooms have been commonly referred to as primary
internal airflow paths, open areas within the worked-out area, inner
bleeders, mine foreman entries, part of the gob, or by other names.
However, these entries and/or rooms around the pillared area are
an inherent part of many bleeder systems and function as entries.
Id. at 3-4.
Contestant’s expert, Gary Hartsog,13 credibly testified that PPL P13-V-12 changed the
definition of a bleeder system. Specifically, Hartsog testified that PPL P13-V-12 included as part
of the bleeder system “any pillar that’s left untouched . . . . Commonly, we don’t refer to certain
pillars next to the gob or around the gob as being part of the bleeder system. It’s part of the gob.”
13

Hartsog was qualified, absent objection, as an expert witness in mine ventilation for the
Contestant based on his experience and education, including a Master of Science in mine
engineering with a thesis in mine ventilation, his status as a registered professional engineer in
West Virginia, and his experience teaching classes in mine ventilation, including bleeder
systems, for groups such as state mine inspectors and engineers. Tr. 458-471; see also P. Ex. 36
(resume for Hartsog).

41 FMSHRC Page 492

Tr. 513. Hartsog testified that perimeter cuts “are in the abandoned area. Once those are mined, I
would not expect them to be re-examined once left.” Tr. 480. Hartsog also credibly testified that
PPL P13-V-12 redefined what constituted a bleeder entry. Tr. 493-94. He stated that PPL P13-V12 “defines bleeder entries as being any entries that . . . are between or around blocks that have
not been second mined. Before this [policy] document came out, that was not the case.” Tr. 523.
In 2017, Gateway North, operated by Peabody Gateway North Mining, LLC
(“Peabody”), was also conducting perimeter mining under an approved ventilation plan that
included 20-foot perimeter cuts. Tr. 159-160. When Gateway North submitted a plan for 40-foot
perimeter cuts, Burns talked with MSHA Arlington headquarters and Pittsburgh Tech Support
about performing a ventilation survey at Gateway North because “we had concerns that those 40foot cuts could be ventilated properly.” Tr. 160.14 From February 8 through March 1, 2017,
MSHA conducted a ventilation survey of the Gateway North Mine bleeder system and
“determined that there [were] deficiencies in the design of perimeter mining.” Tr. 159; P. Ex. 34.
As a result of the Gateway North investigation, MSHA found that
[a]ll methane concentrations detected were less than 0.1%; [a]ll
oxygen concentrations detected were greater than 20.6%; [t]he
outby room of the first pod was not ventilated; [t]he direction of
airflow through most pods was difficult to discern; [i]n ten of the
eighteen pods, the general direction of airflow was opposite the
direction indicated in the mine ventilation plan; [t]here was no
perceptible air movement found in almost all perimeter cuts
probed; [t]he total ventilating pressure differential between the belt
air course and the left side return entries at the front of the 2nd
North Panel was less than 0.2 inches of water gauge; [and t]he
pressure differential across MPL regulator was less than 0.1 inches
of water gauge.”
P. Ex. 32 at 2.
Although MSHA did not revoke Gateway North’s extant ventilation plan, MSHA never
approved a ventilation plan that included 40-foot perimeter cuts. Tr. 164-65. Shortly after the
ventilation survey, Gateway North ceased conducting perimeter mining entirely. Tr. 223, 235-36,
246-47.
After conducting the ventilation survey at Gateway North, MSHA decided to conduct a
ventilation survey at Viper Mine, another mine conducting perimeter mining, and at PEUG.
Tr. 160. MSHA chose to inspect PEUG first because MSHA “felt the hazards may be more for

14

Prior to working for District 8, Burns had never worked in or inspected any mines that
had perimeter mining. Tr. 219.

41 FMSHRC Page 493

Prairie Eagle than Viper.” Tr. 165. In particular, the Viper mine was only engaged in doing
perimeter cuts around, not between blocks. Tr. 166, 239.15
On January 9 and 10, 2018, Respondent’s expert, Dennis Beiter,16 headed a team from
MSHA Tech Support17—Bradley R. Wurl, Diane M. Doyle-Coombs, Gaetano J. Iannacchione,
A. Zharif MdAzmi, and George N. Aul—as well as John Hohn, District 8 ventilation specialist
supervisor, and Michael Pritchard and Bernard Reynolds, District 8 ventilation specialists. G. Ex.
1. Hasenstab and Bill Jankousky, the corporate safety director for Knight Hawk, assisted the
MSHA team on January 9, 2018. Tr. 297.
As part of the survey, the MSHA team measured air quality for methane and oxygen
levels through handheld devices and bottle samples and used chemical smoke to determine
airflow direction at various locations in the mine. G. Ex. 1 at 2. This included testing air quality
and airflow in the perimeter cuts themselves. Beiter testified that perimeter mining offered a
“unique opportunity” to conduct a survey in a pillared area because a survey team would not
ordinarily be able to access a mined-out area in second mining, such as longwall mining or full
pillar extraction. Tr. 563. Burns also testified that, when conducting a ventilation survey, “as a
general rule,” one does not go into or analyze the ventilation in pillared areas. Tr. 222.
When conducting tests in unbolted perimeter cuts, the MSHA team would not themselves
go into the unbolted perimeter cuts, which are areas where miners do not normally work or
travel. Tr. 298-99. The team would send a probe into the cut with one tube that would collect an
air sample and a second tube that would release smoke. This smoke was created using a chemical
reaction that resulted in heat, making the smoke rise. Tr. 536-37. The MSHA team then
attempted to observe the movement of the smoke from approximately 44 feet away in order to
determine whether, and in what direction, there was air movement in the perimeter cut. Tr. 5253, 257. To aid these attempts in the dimly lit perimeter cut, an MSHA representative would
point a light from outside the perimeter cut into the cut, while a pair of lights on the probe itself
also provided some level of illumination. Tr. 122, 520. The results of the chemical smoke tests
were not always repeatable. Tr. 561-62.
While conducting the PEUG ventilation survey, the members of the MSHA team were
not always in agreement as to the results of the chemical smoke tests. Tr. 543. Hasenstab
15

After the ventilation survey at PEUG, MSHA conducted a ventilation survey at Viper
Mine. Tr. 168, 212, 215. Burns testified that he was diligently working with Viper in order to
approve 40-foot cuts based on good-faith negotiations. Tr. 216. However, the Secretary never
provided evidence that Viper presented a situation different than Gateway North or PEUG to the
point that it could satisfy District 8’s ventilation requirements for extended-cut perimeter mining.
16

Through his experience, including earning a Bachelor of Science in mining
engineering, working as a mining engineer for MSHA, and overseeing underground ventilation
in a mine, Beiter qualified as an expert in underground mine ventilation for the Respondent. Tr.
32.
17

The technical support group provides consultative support for MSHA’s coal mine
safety and health branch and metal and nonmetal safety and health branch.

41 FMSHRC Page 494

testified about disagreements within the survey team regarding perceptible movement and a
“general uncertainty in regards to movement or no movement” among MSHA personnel.
Tr. 299. Hasenstab also testified that “there were several times [Doyle-Coombs from the MSHA
survey team] said that there was perceptible movement and Mr. Beiter would come up and say
no, that’s not movement.” Tr. 378. Hasenstab also credibly testified that during the ventilation
survey:
There w[ere] definitely some varying interpretations of movement of the
smoke. . . . I do recall Mr. Beiter arriving and very quickly making a
determination that the current perimeter cut we were in when smoke was
released was no perceptible movement. I disagreed with that interpretation
of that particular cut. From that point forward, MSHA personnel—I’ll just
say they seemed to be very quick as to a determination if there was
movement or not.
Tr. 349-50.
Similarly, Jankousky credibly testified that at least one member of the survey team,
Doyle-Coombs, observed perceptible movement, but became visibly upset when Beiter overruled
her observations and then directed that some of her notes be rewritten and some of her
observations, or those of Knight Hawk’s representatives, be changed in accordance with Beiter’s
interpretations. Tr. 378-79, 389-90, 567-68. Beiter also acknowledged that MSHA personnel
were not able to come to a consensus as to the results of these smoke tests until he intervened
and imposed his explanation of the “expected phenomenon.” Tr. 104-105.
MSHA’s survey team did not use tracer gas, a technique for determining air movement
by releasing a certain gas in one area and then sampling for that gas in another area to assess how
long it takes the tracer gas to move and to assess its concentration level. Tr. 533, 560. MSHA did
not use tracer gas despite the fact that Beiter admitted that “[u]sually you would use tracer gas
when we can’t confirm that there is airflow.” Tr. 573. Hartsog testified that he believed that the
chemical smoke tests were not valid tests but “an attempt by District 8 to get rid of perimeter
mining.” Tr. 415. Based on the record evidence, further stated below, bolstering this opinion,
including the unique and sui generis use of the smoke tests, the actions of Beiter during the
ventilation survey that resulted in overruling other members of the survey team, and the fact that
the smoke tests were at times unrepeatable, the undersigned finds Hartsog’s expert opinion to be
persuasive.
District Manager Burns testified about three particular concerns that he had with regard
to perimeter mining as a result of the PEUG ventilation survey and Beiter’s subsequent report.
First, Burns was concerned about the possibility of a spontaneous combustion18 event occurring
due to a general lack of ventilation. Tr. 239. Although at the time of the November 14, 2018 plan
revocation there had been no spontaneous combustion events at PEUG (G. Ex. 2 at 6), Burns
18

The Dictionary of Mining, Minerals, and Related Terms (2d ed. 1997) defines
“spontaneous combustion” as “[t]he heating and slow combustion of coal and coaly materials
initiated by the absorption of oxygen.”

41 FMSHRC Page 495

relied on heating events that he identified as spontaneous combustion events, and he was focused
on preventing a first spontaneous combustion event from occurring. Tr. 174-75.
Burns’ second concern involved the possibility of the release of methane from a roof fall
due to the fact that the perimeter cuts themselves were unbolted. Tr. 182. Hartsog testified that, if
there were a roof fall, any methane liberated in the roof fall would be effectively “diluted and
rendered harmless by the ventilation system.” Tr. 488; see also Tr. 149. The ventilation survey,
which found roof falls in some perimeter cuts but no elevated levels of methane, bolsters this
testimony. G. Ex. 18-1.
Burns’ third concern dealt with methane and oxygen levels within the general area of the
perimeter cuts. Tr. 177. Burns based this concern on a single bottle sample showing a
concentration of methane of 4.7% where a roof support drill hole penetrated a “bleeder” in the
roof of an active area not subject to perimeter mining. Beiter relied on this event as “evidence
that methane may be encountered at any time.” Tr. 177; see also Tr. 149. Under the approved
ventilation plan, the methane from the bleeder was effectively diluted to less dangerous levels.
Tr. 149. Additionally, Hartsog testified that there were no ignition sources in the mine that might
contribute to the dangers of methane buildup. Tr. 492. The Secretary failed to rebut this
testimony.
On January 29, 2018, Beiter and Burns met with, and gave the preliminary results of the
survey to, Hasenstab, Jankousky, Dale Winter, Kyle Griggs, Bernie Kern, Brian Wallace, and
other staff from Knight Hawk. Tr. 93, 290-91. At this meeting, MSHA showed Knight Hawk
maps of the mine indicating the findings of the ventilation survey, including levels of methane
and oxygen as well as the presence and direction of airflow at specific locations. Tr. 167. These
maps were introduced into evidence as G. Ex. 18. After reviewing Beiter’s report, Burns
determined that there were deficiencies in Knight Hawk’s ventilation plan and the bleeder
system was not adequate and effective to ventilate the mine. Tr. 171-72. Burns requested that
Knight Hawk submit a revised ventilation plan to address the deficiencies. Tr. 168.
On February 8, 2018, Beiter and the MSHA team drafted an internal report summarizing
the results of the survey. G. Ex 1. Concerning air quality, the report stated that the highest
concentration of methane was 0.12% and that the lowest concentration of oxygen was 20.2%. Id.
at 1-2. These results were well within the allowable limit of methane below 1% under 30 C.F.R.
§ 75.323(c)(1), and the allowable minimum level of oxygen above 19.5% under 30 C.F.R.
§ 75.321(b). See also G. Ex. 16 at 2. Both Beiter and Hasenstab testified that the mine had a low
oxidation rate. Tr. 98, 326. The oxidation of coal results in a reduction in the level of oxygen. Tr.
510.
Concerning air movement, the report set forth several alleged deficiencies, including:
1) “The direction of net airflow direction through many blocks was difficult to discern; in some
blocks it could not be determined”; 2) “No perceptible air movement was observed in
approximately 57 of the perimeter cuts examined”; 3) “The air directions through the rooms . . .
were not always consistent throughout the length of the room, nor with the net direction of
airflow through the block”; 4) the “[d]irection of air movement was not always consistent in
adjacent bleeder entries within a block, or the entire length of individual bleeder entries”; and

41 FMSHRC Page 496

5) “[n]o perceptible air movement was observed in portions of bleeder entries in a few
locations.” G. Ex. 1 at 2-3.19 The report and Beiter’s testimony discounted air movement
observed in perimeter cuts as a result of “eddy currents created by air flowing past the front of
the cut.” G. Ex. 1 at 2; Tr. 81. Beiter opined that he did not “think eddy current[s] would be an
appropriate means of actually providing ventilation for that extended cut because the eddy
currents are depend[ent] upon the amount of airflow moving by [the cut] and there is nothing in
the ventilation plan that indicated there had to be a certain amount of airflow or certain velocity
of airflow in the airflow moving in that room in front of there.” Tr. 81. The previously approved
ventilation plan required 7,000 cubic feet per minute of airflow over the continuous miner during
perimeter mining. G. Ex. 12 at 7; G. Ex. 1 at 6. The previously approved ventilation plan did not
require any specific amount of airflow across perimeter cuts. G. Ex. 12. Nor is there any
evidence that MSHA suggested any minimum amount of airflow across perimeter cuts during
negotiations with Knight Hawk or listed this as a deficiency in the approved ventilation plan.
On March 13, 2018, Knight Hawk sent a letter in response to the concerns raised by
MSHA in the January 29, 2018 meeting and those raised in Beiter’s February 8 report, which
Knight Hawk did not receive until March 7, 2018. G. Ex. 2. According to Knight Hawk, the
short period of time since the receipt of the report limited its ability to comment, or to retain an
expert, if further evaluation became necessary. G. Ex. 2 at 6. Knight Hawk alleged that Beiter’s
February 8 report contained opinion and speculation and used “assumed definitions and
designation” of the terms “pillared areas, bleeder entries, partial recovery second mining, and
return air split” as well as differing interpretations among MSHA investigators as to the
definition of “no perceptible movement.” Id. at 7. The March 13 letter also stated that the
February 8 report contained conflicting information and inaccuracies between the report and the
sketches of the ventilation plan. Id. at 7.
Knight Hawk’s March 13 letter also documented, with extensive detail, the safety record
of perimeter mining and established that “[p]erimeter mining results in a lower miner exposure to
respirable dust, lower citations, a lower injury rate, a lower exposure to noise, and a lower
exposure to red zone/danger zone” and did not involve roof bolting in most perimeter cuts,
eliminating all hazards associated with that process. Id. at 2. The letter further noted that the
mine had never experienced any spontaneous combustion events. Id. at 6.
Testimony bolstered the safety benefits of perimeter mining. Burns conceded that
perimeter mining “is a safe form of mining” and provides less exposure to certain hazards
released into the air than other forms of mining. Tr. 173. Hasenstab agreed that the previously
approved ventilation plan has “significant” safety benefits. Tr. 337. Jankousky echoed this
sentiment. Tr. at 370-71. Contestant’s expert Hartsog testified that perimeter mining was not
only a safe form of mining, but that it was safer than continuous mining. P. Ex. 37 at 2; see also
Tr. 371 (Jankousky) (“Definitely perimeter mining is safer.”). Burns admitted that perimeter
mining was a safer form of second mining. Tr. 224.

19

The bleeder entries referenced were those redefined in Policy P13-V-12. G. Ex. 13 at

3-4.

41 FMSHRC Page 497

On April 12, 2018, MSHA sent a letter to Knight Hawk that listed the alleged
deficiencies in the mine’s ventilation plan for the first time. G. Ex. 3. Although this letter does
not reference Knight Hawk’s March 13 letter, Burns testified that he considered that letter before
sending the April 12 letter. Tr. 136-37. The undersigned discredits this testimony. Burns’ April
12 response belies actual consideration of and fails to specifically address the safety and health
benefits of perimeter mining or whether revocation of the previously approved ventilation plan
would result in less protection under the interim plan. See generally G. Ex. 3. As Mine
Superintendent Hasenstab noted in his April 22 correspondence with Burns, “[w]e have attached
[our March 13] letter as we are currently unsure if you have received and/or read the letter
because your letter did not refer to it. We believe that it sets out the many safety and health
benefits of our current mining system that you should consider as well as supporting the mine
specific nature of the plan.” G. Ex. 4 at 1.
Apart from self-serving trial testimony elicited in an attempt to show that MSHA
considered the important safety and health advantages of perimeter mining and did not
summarily discounted them and leave them unanswered, there is no evidence during negotiations
that Burns actually addressed or expressly considered such arguments that he acknowledged at
trial were irrelevant. Rather, Burns testified that such purportedly considered arguments were not
relevant considerations during his ventilation plan review because they dealt with mining
conditions while the perimeter cuts were made (Tr. 173-74), and did not address MSHA’s
specified deficiencies that the bleeder system was being adequately ventilated, examined and
evaluated. Tr. 171-72. According to Burns, his concern was “after the bleeder system was
established, after they left there.” Tr. 174.
Burns failed to explain how or why he would actually consider safety and health concerns
that he deemed irrelevant. Furthermore, the Citation relied on § 75.334(b)(1), which concerns the
bleeder system during pillar recovery, not “after they left there.” Tr. 174. The undersigned
remains unconvinced by Burns’ post hoc rationalization at trial, which was never explained to
Contestant during negotiations. In these circumstances, the undersigned finds Burns’ testimony
that he actually considered the significant safety and health protections afforded by perimeter
mining under the revoked plan to be disingenuous and not credible.
The April 12 letter lists six alleged deficiencies in the mine’s previously approved
ventilation plan:
•

The design of the typical bleeder system does not control
the air direction through all individual “blocks,” including
the air direction in the pillared area within each “block.”

•

The method to control air movement to ventilate the
unbolted extended-depth perimeter cuts within the pillared
area is not provided.

41 FMSHRC Page 498

•

The air direction through all individual “blocks,” including
the air direction in the pillared area within each “block,” is
not shown in the ventilation plan drawings or on the
ventilation map.

•

The air direction at EP locations is not shown in the
ventilation plan drawings or on the ventilation map.

•

The use of permanent ventilation control devices, such as
regulators and stoppings, to control air movement through
the worked-out area would be prudent. Temporary control
devices such as curtains are more susceptible to damage
and/or inadvertent change than permanent control
devices.[20]

•

The specified means of evaluation of the worked-out area
does not provide sufficient information to determine the
effectiveness of the bleeder system.

G. Ex. 3 at 1. This letter also indicated that a bottle sample, taken on March 1, 2018, found a
concentration of methane of 4.7% where a roof support drill hole penetrated a “bleeder” in the
roof of an active area not subject to perimeter mining, “which is evidence that methane may be
encountered at any time.” Id.; see also Tr. 149. Under the approved ventilation plan, that
methane was effectively diluted to less dangerous levels by the air used to ventilate the section.
Tr. 149.
On April 22, 2018, Knight Hawk sent another letter to MSHA. G. Ex. 4. Knight Hawk
contended that the ventilation system in the worked out area “does not fit readily into the term
‘bleeder’ in 30 CFR § 75.334(b) because the area at issue does not involve ‘pillar recovery.’” Id.
at 2 n.2. Knight Hawk did not advance this position at the hearing or in its post-hearing brief, and
the undersigned rejects it.
Addressing the alleged deficiencies listed in MSHA’s April 12 letter, Knight Hawk
explained how the approved ventilation plan does indicate airflow direction and ventilation
controls such as stoppings, regulators, and curtains. Id. at 2. Furthermore, Knight Hawk
explained that the ventilation plan was working effectively and preventing the accumulation of
gases, dusts, or fumes, as shown by the low levels of methane. Id. Knight Hawk also addressed
the concentration of methane found on March 1, 2018, stating that the bleeder was penetrated in
an active unit—not during perimeter mining—and reiterated that no roof penetration occurs
during perimeter mining. Id. at 1.
In its April 22 letter, Knight Hawk also stated that “[t]he ability to continue to use the
current plan is consistent with MSHA Program Policy Letter No. P13-V-12, which addresses the
20

MSHA later removed this alleged deficiency as a violation of a mandatory regulation
and acknowledged it as prudent, but not mandatory. G. Ex. 9.

41 FMSHRC Page 499

evaluation of bleeder systems and states, ‘[i]t is anticipated that District Managers would not
suggest changes to the relevant portions of existing approved ventilation plans absent conditions
affecting the safety or health of miners.’” Id. at 2. Knight Hawk’s April 22 letter also reiterated
the contention that the definition of “perceptible movement” “varied among the MSHA
personnel” and different interpretations of “no perceptible movement” “was evident and
apparent” among the MSHA investigation team. Id. at 3. This letter closed by stating that “[i]t
appears we may be at an impasse in discussions about the plan.” Id. at 4.
On May 3, 2018, MSHA responded to Knight Hawk’s April 22 letter. G. Ex. 5. MSHA
reiterated the six alleged deficiencies identified in its April 12 letter, but, for the first time,
included citations to regulations for each alleged deficiency. Specifically, the letter alleged that:
•

the bleeder system does not control the airflow direction through all blocks, including in
the “pillared area,” citing 30 C.F.R. §§ 75.334(b)(1), 75.334(c)(4), 75.371(bb), and
75.372(b)(9);

•

the method to control air movement to ventilate the perimeter cuts is not provided, citing
30 C.F.R. §§ 75.334(b)(1), 75.334(c)(4), 75.371(bb), and 75.372(b)(9);

•

the airflow direction is not shown through the blocks, citing 30 C.F.R.
§§ 75.364(a)(2)(iii) and 75.372(b)(9);

•

the airflow direction at EPs is not shown on the ventilation plan, citing 30 C.F.R.
§§ 75.364(a)(2)(iii), 75.371(y), 75.371(z), and 75.372(b)(9);

•

the plan should use permanent ventilation control devices rather than temporary ones,
citing 30 C.F.R. §§ 75.333(b)(5) and 75.334(c)(4); and

•

the specified means of evaluation do not provide sufficient information to determine the
effectiveness of the bleeder system, citing 30 C.F.R. §§ 75.334, 75.364(a)(2)(iii) and (iv),
and 75.371(y) and (z).

The letter ended by granting Knight Hawk two weeks to submit a ventilation plan in response to
the alleged deficiencies.21
On May 15, 2018, Knight Hawk responded and addressed each of the alleged
deficiencies and cited regulations in detail. G. Ex. 6. Knight Hawk’s May 15 letter goes into
great depth referencing each cited regulation, and even addresses those regulations that are not
applicable. This letter further elucidated Knight Hawk’s earlier contentions, stating that: 1) the
current ventilation plan dilutes and moves methane, other gases, dust, and fumes out of the
worked-out area; 2) controls such as stoppings, regulators, curtains, and connectors are
illustrated on the ventilation plan; and 3) the ventilation map indicates the airflow direction
21

MSHA originally granted Knight Hawk a two-week grace period for abatement,
beginning on May 3, 2018. Although the record does not indicate that MSHA explicitly granted
Knight Hawk extensions, MSHA did not issue the technical citation until November 14, 2018.

41 FMSHRC Page 500

within the entirety of the mine. Knight Hawk offered that it would also add more statements to
the plan to help make the exact airflow patterns more clear, such as, “[t]he direction of airflow
for the worked[-]out area in the 5W/3N/2ME is from EP4 to EP3 to EP2 to EP1.” Id. Knight
Hawk also argued that the mine’s ventilation system does not fit within the definition of
“bleeder” under 30 C.F.R. § 75.334(b) because the area does not involve “pillar recovery.” Id. at
5.22 Finally, Knight Hawk emphasized that when MSHA “Tech Support performed their
evaluation of airflow in the mined out entries,” they entered “barricaded/dangered off” areas
“where miners do not normally travel.” Id. at 7.
On June 7, 2018, MSHA responded to Knight Hawk’s May 15 rejoinder and alleged that
Knight Hawk “did not address the noted deficiencies” and “did not provide any other revisions
to the currently approved ventilation plan to address the 30 CFR standards.” G. Ex. 7 at 1.
MSHA then offered its explanation of why Knight Hawk’s responses were inadequate and relied
on the January 2018 ventilation survey and § 75.334(b)(1) to allege for the first time that the
bleeder system was not controlling the air passing through the area. Id. The letter specifically
emphasized that “[t]he location of current ventilating devices does not control the air movement
throughout the entire worked-out area” and “[t]he worked-out area is not ventilated throughout
the entire pillared area, as determined by the ventilation survey conducted in January 2018.” Id.
at 2. The word “throughout” is not found in the regulations cited in MSHA’s May 8 letter, but it
does appear in 30 C.F.R. § 75.334(a)(1), a different regulation than what the Citation relies on.
Despite Burns’ earlier May 3 letter citing specific regulations, Burns testified that the use and
emphasis of the word “throughout” in his June 7 letter was not referring to any specific
regulation, but it “was just my term there to make sure they understand that I’m not just talking
about the mouth [of a panel]. I mean from the active working section to the mouth of the panel.
Throughout the entire area has got to be done.” Tr. 205. The undersigned does not credit this
testimony. Rather, Hasenstab credibly testified that the term “throughout” does not capture the
intent of the plain meaning of the regulation, “I believed we complied in so far as the intent of
the law is to ventilate through the worked out area, not throughout.” Tr. 335.
MSHA’s June 7 letter also rejected Knight Hawk’s offer to add statements describing the
direction of airflow. G. Ex. 7. Specifically, the letter stated that “[s]tatements on maps are not a
substitute for showing the actual direction of airflow.” Id. at 1. The letter provided no support for
this assertion. At the hearing, Burns testified that written statements were not adequate because
“the way we read the regulation in plain language it says you show the direction on the maps and
you show the direction at EP[s].” Tr. 204. Hartsog testified that he had seen approved ventilation
plans that described airflow direction with words rather than arrows. Tr. 501-02.
After the June 7 letter, Knight Hawk spoke with MSHA personnel by conference call on
June 14, and in person on June 19, 2018. G. Ex. 8. Burns could not remember or testify about
either discussion. Tr. 206. At these meetings, two alternative methods for ventilating perimeter
cuts were discussed: 1) connecting two perimeter cuts from opposite sides by holing together
22

As noted, the undersigned rejects this pre-hearing position. As found above, perimeter
mining involves second mining and pillar recovery. Consequently, perimeter mining at the mine
squarely falls under § 75.334(b)(1) and its requirements that “[d]uring pillar recovery a bleeder
system shall be used.”

41 FMSHRC Page 501

angled cuts with straight cuts so air would flow though there, and 2) “sawtooth” cutting. Tr. 32931. Knight Hawk rejected connecting angled and straight perimeter cuts because roof control and
subsidence issues were unfavorable, the geometry would not work with regard to crosscut
distances, and the combined cuts would exceed 40 feet. Tr. 332-33, 362. The term “sawtooth”
cutting was never defined by MSHA, nor did Knight Hawk ask for clarification of the term at the
time. Tr. 333, 344.23
On July 5, 2018, Knight Hawk sent a letter in response to MSHA’s June 7 letter and the
subsequent discussions with MSHA personnel. G. Ex. 8. Knight Hawk opined that its May 15
letter offered changes to the currently approved ventilation plan that addressed the alleged
deficiencies and the parties were at apparent impasse. In anticipation of MSHA’s issuance of a
technical citation, Knight Hawk requested that abatement be extended until an ALJ ruled on the
validity of the existing plan because the mine “has operated safely and effectively under the
current plan since 2007 and it provides significant safety benefits.” Id. Otherwise, Knight Hawk
requested discussions about what was acceptable to abate the technical citation and operate under
an interim ventilation plan during litigation. Id.
On October 22, 2018, MSHA sent another letter to Knight Hawk. G. Ex. 9. This letter
again laid out the alleged deficiencies, but listed only five deficiencies. Id. MSHA revised one of
the previously identified deficiencies—the alleged requirement that the ventilation plan use
permanent rather than temporary ventilation controls—as “prudent” rather than mandatory.
Burns’ letter stated that “[a]bsent modification of the ventilation plan to provide the miner
protection outlined above, I will revoke your currently approved plan on November 12, 2018.”
Id. at 3. The letter concluded that MSHA “will be more than happy to discuss a plan, which
would be consistent with the provisions addressed above[, which] would permit mining to be
conducted until a resolution is reached.” Id.
The record establishes that MSHA did not consider the experiential opinions and learning
from District 8’s own ventilation specialists and inspectors intimately familiar with the mine
during the plan revocation process. District Manager Burns, who was generally unfamiliar with
and had limited experience with perimeter mining (Tr. 240-41), confirmed that he did not talk to
or seek input from his own inspectors during the plan revocation process, despite the fact that his
ventilation specialists would regularly perform six-month plan reviews on site and review mine
maps to identify problems and ensure the plan was still “adequate.” Tr. 155-58, 233-34. During
such reviews, “[a]n evaluation of the bleeder system was done in accordance with what the plan
was as far as one of the evaluation points. We did not go to any area that the mine examiners
would not go to during that time.” Tr. 158. District 8 ventilation specialist, Mike Pritchard,
regularly performed such ventilation plan reviews. Tr. 383. Specifically, “he walks the air
courses, walks intakes, returns, bleeders, and he . . . evaluates the bleeders.” Tr. 387. In January
2019, shortly after revocation of the plan, safety director Jankousky discussed perimeter mining
and MSHA’s revocation of the ventilation plan with Pritchard during an underground, six-month

23

Hasenstab testified that sawtooth cutting involved making perimeter cuts where two of
them intersected at the back end, although the design and layout would be much different that
holing perimeter cuts together. Tr. 359.

41 FMSHRC Page 502

ventilation review. Tr. 381-82. Pritchard told Jankousky that he did not see anything wrong with
the revoked system of ventilation for perimeter mining. Tr. 381, 383, 385-86.24
By attachment to letter dated November 5 and attached revisions to letter dated
November 6, 2018, Knight Hawk submitted an interim ventilation plan that did not include
perimeter mining. G. Ex. 15; compare G. Ex. 12 with G. Ex. 15. By separate letters both dated
November 14, 2018, MSHA approved the interim plan (G. Ex. 15), which does not permit
perimeter mining (Tr. 354), and formally revoked the mine’s ventilation plan, which included
perimeter mining (G. Ex. 10). On November 14, 2018, MSHA also issued the technical citation
at issue under 30 C.F.R. § 75.370(a)(1) for mining without a ventilation plan approved by the
District Manager. G. Ex. 11.25 Under questioning from the undersigned, Burns verified that
nothing had changed at all since 2010, except for the ventilation survey. Tr. 240-41.26
24

Former District 8 ventilation supervisor Eslinger testified based on extensive
experience with numerous district managers that a district manager would consult with his own
ventilation specialists when contemplating revocation of a ventilation plan, and could not recall
any instance in which MSHA “just yanked a plan on somebody, disapproved a plan.” Tr. 424-26.
When asked by the undersigned whether a district manager ever consulted with him about
revoking a perimeter mining plan, Eslinger testified:
When Robert Phillips became the district manager in about 2007, he made
some comments about perimeter mining. And he expressed his desire to get
rid [of] and eliminate perimeter mining. He brought up some issues. I
responded to some of the issues. The roof control supervisor responded to
some of the issues. We had some discussions. The plans for perimeter mining
were not revoked while I was the supervisor. We had some new mines going
in, and they had a heck of the time trying to get perimeter mining approved,
but we did not revoke any of the plans for the mines that had perimeter mining
in them.
Tr. 425.
25

When MSHA first issued the citation, the citation number used was already in use for
another violation, and MSHA modified the original citation to change the citation number. G.
Ex. 11; Tr. 267.
26

Q.

What changed, if anything, between approval of the plan and revocation?

A.
We done our investigation and found out that areas of the mine was not being
ventilated. And so the plan needed to address it at that time. Before we done the
investigation in 2018 for them and 2017 for Prairie Eagle. I don't think we had ever done
any kind of same type of ventilation survey on perimeter mining. When I got there in
2015, and this was like two months after I had been there, maybe less than two months,
we approved the plan. Yeah, I knew—I had questions about it, about perimeter mining
because I had never seen it before. I was used to from eastern Kentucky, full pillar
extraction or something, but at that time, I did not know enough about this to know
(continued…)

41 FMSHRC Page 503

Subsequent to the revocation of the mine’s ventilation plan, two alleged spontaneous
combustion events occurred at the mine, one underground and one on the surface. Tr. 175, 376,
492, 512. The evidence as to the cause of these events was inconclusive. Tr. 376. Having
considered arguments and evidence as to the progeny of the events, the undersigned credits
Jankousky’s conclusion that it could not be determined whether the events were spontaneous
combustion. Tr. 376. Furthermore, perimeter mining was not involved in either event, and both
events occurred after the revocation of the ventilation plan. Tr. 225. Consequently, the
undersigned finds that these events have little material bearing on resolution of the issues
presented.
III. LEGAL PRINCIPLES AND ANALYSIS
The Secretary contends that the sole issue in this case is whether MSHA acted arbitrarily
and capriciously when it revoked the mine’s previously approved ventilation plan. Tr. 11. Knight
Hawk contends, instead, that there are four issues: 1) whether the previously approved
ventilation plan was suitable; 2) whether the revocation was improper and contrary to law;
3) what is the Secretary’s burden of proof in this matter; and 4) how should the decisions in
Prairie State Generating Co., LLC, 35 FMSHRC 1985 (July 2013) (Prairie State I), aff’d,
792 F.3d 82 (D.C. Cir. 2015) (Prairie State II), and Signal Peak Energy, LLC, 40 FMSHRC
1059 (Aug. 2018), appeal docketed, No. 18-72837 (9th Cir. 2018), be considered with Peabody
Coal Co., 18 FMSHRC 686 (1996) (Peabody). Tr. 11.
As noted in the undersigned’s Order Denying the Secretary of Labor’s Motion in Limine,
Commission case law regarding the standard of review applicable to determining whether a
district manager’s rejection of a ventilation plan appears to be in a state of flux. 41 FMSHRC
217 (Mar. 2019) (ALJ). MSHA alleges that Knight Hawk operated without a suitable ventilation

26

(…continued)

exactly how I guess the ventilation system and everything would work or where it would
not be working. So when we done the ventilation survey starting at Gateway North, we
found out a lot. I went through this and developing—not developing concerns, but
looking at concerns we found that yes there is areas that’s not ventilated. That’s what
happened between when this was approved and when we revoked.
Tr. 240-41 (emphasis added). The undersigned finds Burns’ verbal leak that they were
“developing . . . concerns” to be telling. This verbal leak adds credence to the inference that
Burns’ concerns arose out of a preconception of what he expected to find at PEUG after Gateway
North, rather than treating PEUG independently, and to the inference that MSHA wanted to get
rid of perimeter mining.

41 FMSHRC Page 504

plan as required by § 303(o) of the Mine Act. 30 U.S.C. § 863(o);27 see also Zeigler Coal Co. v.
Kleppe, 536 F.2d 398, 406-07 (D.C. Cir. 1976). If I were working from a clean slate, I would
find that the burden of proof that lies with the Secretary is the same as any violation the
Secretary brings before this tribunal. It is a burden of proof the Secretary must satisfy before this
fact-finding body and not a standard of review as if the undersigned merely functions as an
appellate body for the Secretary’s decision. As the Court of Appeals for the District of Columbia
found in Zeigler,28 ventilation plans are enforceable as mandatory standards. 536 F.2d at 409.
Consequently, during the enforcement of such a plan, the Secretary would have to satisfy the
same burden for a violation of § 303(o) as any other mandatory standard found in the Mine Act.
Id. (“[W]e conclude that requirements of duly adopted ventilation plans are generally
enforceable under § 104(b) and the statute’s other enforcement provisions.”). The revocation of a
ventilation plan in its entirety should not provide a means for the Secretary to avoid this burden. I
would reject the position that the Commission must defer to the Secretary because to act
otherwise would be to “displace entirely the expertise of the Secretary.” Mach Mining, LLC v.
MSHA, 728 F.3d 643, 658 (7th Cir. 2013) (Mach Mining II), aff’ing, Mach Mining, 34 FMSHRC
1784 (Aug. 2012) (Mach Mining I). This position gives short shrift to the expertise inherent in
the Commission itself. 30 U.S.C. § 823(a) (“The Commission shall consist of five members . . .
who by reason of training, education, or experience are qualified to carry out the functions of the
Commission.”).29
Working from this clean slate, I would apply the standard as articulated in Peabody.
Under this standard, the Secretary bears the burden of proof to establish by a preponderance of
the evidence that “(1) the previously approved [ventilation] plan is no longer suitable to the
conditions and the mining system of the coal mine, and (2) the new plan provision is suitable.”
18 FMSHRC at 690. To be blunt, the Secretary utterly fails to satisfy this burden. As more fully
explained below, the Secretary relies on evidence—the smoke tests and the ventilation survey
overall—that I find unreliable. Of note, the Secretary failed to establish the propriety or
reliability of the smoke tests when used in second mining, and substantial evidence demonstrated
that the smoke tests as conducted at the mine were unreliable. Tr. 52-53, 561-62. Credible
27

“A ventilation system and methane and dust control plan and revisions thereof suitable
to the conditions and the mining system of the coal mine and approved by the Secretary shall be
adopted by the operator and set out in printed form within ninety days after the operative date of
this title. The plan shall show the type and location of mechanical ventilation equipment installed
and operated in the mine, such additional or improved equipment as the Secretary may require,
the quantity and velocity of air reaching each working face, and such other information as the
Secretary may require. Such plan shall be reviewed by the operator and the Secretary at least
every six months.” 30 U.S.C. § 863(o).
28

Although Zeigler did not explicitly adopt the arbitrary and capricious standard, Zeigler
began the path that ultimately led to the application of the arbitrary and capricious standard of
review seen in Mach Mining, LLC v. MSHA, 728 F.3d 643, 657-58 (7th Cir. 2013) (Mach Mining
II), aff’ing, Mach Mining, 34 FMSHRC 1784 (Aug. 2012) (Mach Mining I).
29

I see the same flaws inherent in Martin v. Occupational Health & Review Commission,
499 US 144, 152-53 (1991) (“[T]he Secretary is more likely to develop the expertise relevant to
assessing the effect of particular regulatory interpretation.”).

41 FMSHRC Page 505

evidence demonstrated that the ventilation at the mine effectively ventilates the mine according
to 30 C.F.R. § 75.334(b)(1). This evidence includes levels of methane and oxygen that were
described as “excellent.” Tr. 428. Furthermore, I found the Secretary’s expert to be, by and large,
unreliable. He was evasive and frequently avoided answering questions directly.
Turning to the merits of Burns’ three concerns regarding perimeter mining, the
concentrations of methane and oxygen established that the previously approved ventilation plan
continuously diluted and moved methane-air mixtures and other gases, dusts, and fumes from the
worked-out area. G. Ex. 1 at 1-2. The evidence also established that, prior to the revocation of
the ventilation plan, PEUG did not experience any spontaneous combustion events. G. Ex. 2 at 6.
Finally, the plan adequately mitigates any risk of a roof fall, and testimony established that a
hypothetical roof fall would be effectively rendered harmless. Tr. 488. In other words, Burns’
concerns were utterly unwarranted. The record demonstrates that the previously approved plan
continues to be suitable to the conditions and mining system of the mine. Consequently, the
Secretary failed to satisfy by a preponderance of the evidence that Knight Hawk’s previously
approved ventilation plan was unsuitable.
However, the undersigned is not working from a clean slate. In Signal Peak, the
Commission split 2-2 on what standard of review applies when considering an MSHA district
manager’s revocation of a ventilation plan, creating no precedential decision.30 Then-Chairman
Jordan and Commissioner Cohen affirmed the judge’s application of the arbitrary and capricious
standard of review of the district manager’s decision to reject a ventilation plan submitted by the
operator. Signal Peak, 40 FMSHRC at 1064.31 They relied on Mach Mining, where the Seventh
Circuit found that that a Commission majority correctly determined that a district manager’s
refusal to approve a ventilation plan should be reviewed under an arbitrary and capricious
standard, and on Prairie State II, where the D.C. Circuit held that the arbitrary and capricious
standard of review applied by the Commission majority to the Secretary’s plan-suitability
determination “was at least a permissible one.” Id. at 93.
By contrast, Commissioners Young and Althen found that the judge applied the wrong
legal standard and that substantial evidence did not support a finding that the operator’s plan was
unsuitable to provide safe and healthful ventilation at the specific mine. Signal Peak,
40 FMSHRC at 1074. They opined that Mach Mining I and Prairie State I were wrongly
decided; however, they acknowledged that those Commission decisions were upheld by the
30

Accordingly, the judge’s decision to apply the arbitrary and capricious standard of
review was affirmed under Pennsylvania Electric Co., 12 FMSHRC 1652 (Aug. 1990), aff’d on
other grounds, 969 F.2d 1501 (3d Cir. 1992).
31

Generally, under the arbitrary and capricious standard of review, a district manager’s
decision will be set aside only where MSHA “relied on factors which Congress [had] not
intended it to consider, entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in view or the product of agency
expertise.” Signal Peak, 40 FMSHRC at 1065, citing Motor Vehicle Mfrs. Ass’n of U.S. Inc. v.
State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983).

41 FMSHRC Page 506

circuit courts as permissible interpretations. Id. at n.10.32 In the end, Commissioners Young and
Althen stated that it was unnecessary to reject such circuit court precedent because substantial
evidence did not support rejection of the operator’s proposed ventilation plan when analyzed
under the safety standard at issue. They observed that the Commission has taken conflicting
positions on the Secretary’s burden of proof, comparing the Peabody and C.W. Mining,
18 FMSHRC 1840 (Oct. 1996), cases cited by Contestant in his Response, with both the Mach
Mining and Prairie State I cases cited by the Secretary in his Motion. Signal Peak, 40 FMSHRC
at 1075-76.33
Thus, given the apparent evolving Commission precedent concerning the appropriate
standard of review for evaluating a district manager’s revocation of a mine’s ventilation plan, the
recent change in Commission composition,34 and the prerogative of the new Commission to
rationally explain reversal of existing precedent,35 even in light of appellate court or Supreme

32

Commissioners Young and Althen declined to characterize their view on the
Secretary’s burden of proof as a “standard of review,” stating that “the outcome of a suitability
determination in this case does not depend upon a didactic characterization of the standard of
review as beyond a preponderance of the evidence or abuse of discretion.” Id. at 1079.
33

But see Mach Mining II, 728 F.3d at 658 n.21, cursorily noting that further explanation
regarding departure from precedent by the Commission was unnecessary given the court’s
conclusion that the statute’s regulatory scheme requires a more deferential standard of review. In
doing so, however, the court in Mach Mining II failed to require the Commission to give any
reasoned explanation as to its change in interpretation. FCC v. Fox Television Stations, Inc.,
556 U.S. 502, 515 (2009) (FCC) (“An agency may not . . . depart from a prior policy sub silentio
or simply disregard rules that are still on the books. And of course the agency must show that
there are good reasons for the new policy.”). I also reject the notion that the more deferential
standard of review is required, rather than simply permissible, under the statute. As noted above,
the court in Mach Mining II, based this on the assumption that “[t]o permit the Commission to
substitute its view for that of the Secretary simply would displace the expertise of the Secretary,”
an assumption that discounts the expertise of the Commission itself. Mach Mining II, 728 F.3d at
658.
34

Chairman Marco M. Rajkovich, Jr. and Commissioners William I. Althen and Arthur
R. Traynor, III were sworn into office on Monday, March 25, 2019. They join Commissioners
Mary Lu Jordan and Michael G. Young to form a new five-member Commission.
35

See e.g., Mach Mining II, 728 F.3d at 658 n.21, citing Lone Mountain Processing, Inc.
v. Sec’y of Labor, 709 F.3d 1161, 1164 (D.C. Cir. 2013) (“As we have long held, an agency
changing its course must supply a reasoned analysis indicating that prior policies and standards
are being deliberately changed, not casually ignored.”).

41 FMSHRC Page 507

Court affirmation of existing precedent,36 the undersigned concludes that the most recent
Commission precedent follows the permissible interpretation that applies an arbitrary and
capricious standard in these circumstances. Although the Commission split 2-2 in Signal Peak,
creating no precedential decision and leaving the judge’s decision below in place, this is a
permissible interpretation and one that the Commission may, upon a reasoned explanation,
change. FCC, 556 U.S. at 514. As such, it is prerogative of the new Commission to rationally
explain the affirmation or reversal of existing and conflicting precedent,37 and to change course
even in light of appellate court or Supreme Court affirmation of existing precedent.38
Accordingly, applying the arbitrary and capricious standard as a permissible
interpretation, the Secretary must establish that MSHA’s revocation of the mine’s previously
approved and presumptively suitable ventilation plan was not arbitrary, capricious, an abuse of
discretion, or otherwise contrary to law (“arbitrary and capricious”). 5 U.S.C. § 706(2)(A);
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983); Prairie State, 792 F.3d at 82; Mach Mining I, 34 FMSHRC at 1790.
It is of critical note that the agency bears the burden of articulating a “rational connection
between the facts found and the choice made.” Bowman Transp., Inc. v. Arkansas-Best Freight
System, Inc., 419 U.S. 281, 285 (1974) (quoting Burlington Truck Lines v. United States,
371 U.S. 156, 168 (1962)). This inquiry involves “examining the reasons for agency decisions—
or, as the case may be, the absence of such reasons.” Judulang v. Holder, 565 U.S. 42, 52-53
(2011); see FCC, 556 U.S. at 515 (noting “the requirement that an agency provide reasoned
explanation for its action”).
As delineated in Motor Vehicle Mfrs., an agency action is arbitrary and capricious when
it: 1) relies on factors that were not intended to be considered; 2) entirely failed to consider an
important aspect of the problem; 3) offered an explanation for its decision that runs counter to
the evidence before the agency; or 4) is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise. 463 U.S. at 43. MSHA acted arbitrarily
and capriciously under these factors.
36

See, e.g., John Deklewa & Sons, 282 N.L.R.B. 1375 (1987), enforced sub nom. Int’l
Ass’n of Bridge, Structural & Ornamental Iron Workers Local 3 v. NLRB, 843 F.2d 770, 780-81
(3d Cir. 1988), cert. denied, 488 U.S. 889 (1988) (overruling previous Board interpretation of
section 8(f) of the National Labor Relations Act despite the Supreme Court’s affirmance of the
Board’s previous interpretation in NLRB v. Iron Workers, 434 U.S. 35 (1978)).
37

See e.g., Mach Mining II, 728 F.3d at 658 n.21, citing Lone Mountain Processing, Inc.
v. Sec’y of Labor, 709 F.3d 1161, 1164 (D.C. Cir. 2013) (“[a]s we have long held, an agency
changing its course must supply a reasoned analysis indicating that prior policies and standards
are being deliberately changed, not casually ignored.”) (internal citations omitted).
38

See, e.g., John Deklewa & Sons, 282 N.L.R.B. 1375 (1987), enforced sub nom. Int’l
Ass’n of Bridge, Structural & Ornamental Iron Workers Local 3 v. NLRB, 843 F.2d 770, 780-81
(3d Cir. 1988), cert. denied, 488 U.S. 889 (1988) (overruling previous Board interpretation of
section 8(f) of the National Labor Relations Act despite the Supreme Court’s affirmance of the
Board’s previous interpretation in NLRB v. Iron Workers, 434 U.S. 35 (1978)).

41 FMSHRC Page 508

A.

MSHA relied on inappropriate factors.

MSHA revoked the previously approved ventilation plan by technical citation citing five
major deficiencies that Knight Hawk allegedly failed to address or include in a modified or
revised plan submission. MSHA grounded the alleged deficiencies in mandatory ventilation
standards set forth in 30 C.F.R. §§ 75.334(b)(1); 75.334(c)(4); 75.364 (a)(2)(iii) and (iv);
75.371(y), (z), and (bb); and 75.372(b)(9). Although the Secretary mentions seven other
regulations, discussed further below in Section III.C, the citation largely rests on § 75.334(b)(1)
to revoke the ventilation plan.39 This regulation states that
During pillar recovery a bleeder system shall be used to control the
air passing through the area and to continuously dilute and move
methane-air mixtures and other gases, dusts, and fumes from the
worked-out area away from active workings and into a return air
course or to the surface of the mine.
30 C.F.R. § 75.334(b)(1). This regulation has two requirements: 1) that the bleeder system
“control the air passing through the area”; and 2) that the bleeder system “continuously dilute
and move methane-air mixtures and other gases, dusts, and fumes from the worked-out area.”
There is no question that the mine has low levels of methane and adequate levels of oxygen.
G. Ex. 1 at 1-2; Tr. 25, 70, 141-42, 296, 421, 485-86. However, MSHA alleges that the bleeder
system fails to control the air passing through the mine. See, e.g., G. Ex. 9 at 1. To support this
allegation, MSHA relies on the ventilation survey. G. Ex. 3 at 1. This included the use of
chemical smoke tests inside the extended-depth perimeter cuts. Tr. 120-21.
As noted above, an agency action is arbitrary and capricious if it relies on factors that
were not intended to be relied upon. Motor Vehicle Mfrs., 462 U.S. at 43. Here, MSHA
improperly relied on two factors: unreliable smoke tests conducted inside the perimeter cuts, and
a bias against perimeter mining that is supported by substantial record evidence.
In using the smoke tests inside the perimeter cuts, MSHA gathered data that would not
have been considered in other forms of second mining or in the consideration of a bleeder system
under § 75.334(b)(1). Tr. 559-60, 573. As Respondent’s expert Beiter repeatedly testified, the
ability to go into a perimeter cut presented a “unique opportunity” because a survey team would
not be able to access a mined-out area in second mining. Tr. 563; see also Tr. 50, 117, 559, 571.
As Beiter further testified, because a survey team could not access a mined-out area in longwall
or full pillar recovery mining, a ventilation survey would only include taking measurements from
the crosscut leading up to and coming out of the mined-out area. Tr. 116. Beiter agreed that he
had “never done a ventilation survey actually in a pillared area, either full extraction, partial

39

While § 75.334(b)(1) applies “[d]uring pillar recovery,” § 75.334(b)(2) applies “[a]fter
pillar recovery.” Although both arguably apply to the mine, the Citation and the Secretary’s
theory of the case—as supported by testimony (Tr. 190, 194) and the Secretary’s briefs—rely
exclusively on § 75.334(b)(1). See G. Ex. 11. Therefore, this Decision will only consider the
alleged violation of § 75.334(b)(1) and not § 75.334(a)(1) or (b)(2).

41 FMSHRC Page 509

extraction, or longwall.” Tr. 116-17. Burns echoed this sentiment and testified that, “as a general
rule,” one does not go into or analyze the ventilation in pillared areas. Tr. 222.
In revoking the mine’s ventilation plan, MSHA improperly relied on a “unique”
opportunity to apply a different standard—requiring perimeter mining to pass a test not required
of any other form of second mining—without explanation; “where an agency applies different
standards to similarly situated entities and fails to support this disparate treatment with a
reasoned explanation and substantial evidence in the record, its action is arbitrary and capricious
and cannot be upheld.” Burlington Northern & Santa Fe R. Co. v. Surface Transp. Bd., 403 F.3d
771, 777 (D.C. Cir. 2005). Accordingly, MSHA’s revocation of the mine’s ventilation plan was
arbitrary and capricious.40
Despite the inability to obtain comparable measurements from inside a pillared area in
other forms of second mining, MSHA relied heavily on the measurements taken from inside the
perimeter cuts at the mine. In doing so, MSHA applied a different test to perimeter mining than it
applied to any other types of second mining under § 75.334(b)(1). Other than describing the
situation as “unique,” there was no explanation given as to why perimeter mining was subject to
requirements that were not applied to any other type of second mining.
In addition, MSHA exhibited a bias against perimeter mining, and there is substantial
evidence in the record to warrant the inference that MSHA was engaging, by incremental steps,
in an attempt to eradicate perimeter mining. This bias led MSHA to conduct the ventilation
survey seeking a predetermined result. Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d
692, 711 (10th Cir. 2010) (using arbitrary and capricious standard in reviewing predetermination
claim). The most probative evidence and credible testimony demonstrate that District 8’s true
aim was to “get rid” of perimeter mining and declare it “illegal.” Tr. 417. Former MSHA District
8 supervising engineer, Mark Eslinger, credibly testified that he served a 90-day detail in 2001 in
Arlington, Virginia, where he had discussions that led him to believe “that people in MSHA
headquarters want to get rid of perimeter mining.” Tr. 444. When pressed for names on further
cross-examination by the Secretary, Eslinger credibly testified that he “had discussions with
Kevin Stricklin and he did not seem to be in favor of perimeter mining.” Tr. 445. Stricklin
executed PPL P13-V-12, without notice-and-comment rulemaking. Eslinger also testified that
Reider, an engineer in District 8, warned that District 8 was trying to “get rid” of perimeter
mining. Tr. 417. Furthermore, MSHA roof control supervisor, Doug Herndon, told Eslinger
during a December 2018 meeting presented by Tech Support that MSHA was going to declare
perimeter mining was “an illegal system of mining. That’s how they are going to get rid of it.”
Tr. 441-42.
This bias was evidenced not only from testimony, but also from the June 7, 2018 letter
where MSHA specifically emphasized that the ventilation plan was inappropriate because “[t]he
worked-out area is not ventilated throughout the entire pillared area.” G. Ex. 7 at 2. As noted
above, the undersigned discredits Burn’s post hoc rationalization for the emphasis of a word that
does not appear in § 75.334(b)(1). Far from simply being Burns’ “term to make sure they
40

MSHA’s heavy reliance on the smoke tests in the perimeter cuts alone is sufficient to
find that the revocation of the ventilation plan was arbitrary and capricious.

41 FMSHRC Page 510

understand that I’m not just talking about the mouth” of the panel, the term implies a standard
not found in the cited regulation, but the standard found in § 75.334(a)(1). Tr. 205. The use and
emphasis of the word “throughout,” which does not appear in the cited regulation, demonstrates
an application of that regulation outside normal bounds and suggests some motive other than an
unbiased application of the proper regulation.
The application of the smoke tests also indicates MSHA’s bias and result-driven
conclusions. As found above, Hartsog persuasively testified that the chemical smoke tests were
not valid tests, but “an attempt by District 8 to get rid of perimeter mining.” Tr. 415. MSHA’s
bias was also evident from Beiter’s actions, discussed below, overruling Doyle-Coombs when
she made notations documenting perceptible movement. Rather than consider the observations of
a member of the survey team or even those from the operator’s representatives, Beiter intervened
and directed changes to those recorded observations that reflected less favorably on the
previously approved ventilation plan.
The record establishes that MSHA also failed to consider the experiential opinions and
expertise from District 8’s own ventilation specialists and inspectors, who are intimately familiar
with the mine, during the plan revocation process. Although Burns was generally unfamiliar with
and had limited experience with perimeter mining (Tr. 240-41), he did not talk to or seek input
from his own inspectors during the plan revocation process, despite the fact that his ventilation
specialists would regularly perform six-month plan reviews on site and review mine maps to
identify problems and ensure that the plan was still “adequate.” Tr. 155-58, 233-34. These
inspectors included Mike Pritchard, who told safety director Jankousky that he did not see
anything wrong with the revoked system of ventilation for perimeter mining at PEUG. Tr. 381,
383, 385-86.
MSHA’s unexplained failure to consider the expertise found in its own agency
demonstrates that MSHA failed to consider an important aspect of the problem and supports the
inference that MSHA was motivated by a desire to chip away at and to ultimately eradicate
perimeter mining.
Although Hasenstab testified that he did not believe that Burns was trying to get rid of
perimeter mining, the testimony and the actions of MSHA when confronted with requests for
approval of ventilation plans that included perimeter mining demonstrate that District 8 was
attempting to get rid of perimeter mining. Tr. 354. As noted above, the undersigned discounts
Hasenstab’s testimony on this point because he would not want to generate ill will with District
8, complicating a key relationship in operating a mine in that district. Other testimony from
disinterested witnesses and the actions of MSHA establish that there was an active effort by
District 8 against perimeter mining. While none of this evidence alone indicates a bias, taken
together, the evidence—including the credited testimony, the use of inapplicable language, the
use of the unreliable smoke tests, and the failure to consider the opinions of District 8’s
ventilation specialists intimately familiar with the ventilation plan at the mine—demonstrates a
pattern of bias against perimeter mining that infected the decision-making process, leading to a
predetermined, and thus arbitrary and capricious, decision. Forest Guardians, 611 F.3d at 711.

41 FMSHRC Page 511

Either of these, the use of the unreliable smoke tests and the demonstrated bias against
perimeter mining, would alone render MSHA’s decision arbitrary and capricious. Motor Vehicle
Mfrs., 462 U.S. at 42 (An agency acts arbitrarily and capriciously when it relies on improper
factors when making its decision.).
B.

MSHA failed to consider important factors.

An agency action is arbitrary and capricious if the agency failed to consider an aspect of
the problem. Motor Vehicle Mfrs., 462 U.S. at 42. In revoking the mine’s ventilation plan,
MSHA failed to consider several important factors including the no-less-protection standard;
using tracer gas; and the disagreements within the survey team and from Knight Hawk’s
representatives concerning the varied and inconsistent results of the smoke tests.
At the outset, MSHA overlooked and failed to consider that its regulatory authority to
revoke the previously approved ventilation plan is subject to a unique statutory limitation: “[n]o
mandatory health or safety standard . . . shall reduce the protection afforded miners by an
existing mandatory health or safety standard.” 30 U.S.C. § 811(a)(9); see United Steel v. Mine
Safety & Health Administration, 925 F.3d 1279, 1288 (D.C. Cir. 2019). “This unusual limitation
‘expressly mandates that no reductions in the level of safety below existing levels be permitted,
regardless of the benefits accruing from improved efficiency.’” Id. at 1282 (quoting United Mine
Workers of Am., Int’l Union v. Dole, 870 F.2d 662, 666 (D.C. Cir. 1989)). This is the
no-less-protection standard. The Mine Act requires that MSHA “state the basis for its
conclusion” that a new health or safety standard satisfies the no-less-protection standard. Id. at
1282-83. Ventilation plans are the equivalent of safety and health regulations promulgated
through notice-and-comment rulemaking. Prairie State Generating Co. LLC v. Sec’y of Labor,
792 F.3d 82, 86 (D.C. Cir. 2015). Accordingly, when revoking the previously existing plan that
provided for perimeter mining, MSHA could not approve an interim plan without perimeter
mining that provided less protection, and MSHA needed to state the basis for its conclusion that
revocation of the status quo would not result in less protection for miners under the interim plan.
Knight Hawk presented substantial evidence to MSHA establishing that perimeter mining
was a safe and effective method of mining at the mine that resulted in lower exposure to
respirable dust, noise, and red or danger zones; a lower citation and injury rate; elimination of all
hazards associated with roof bolting; superior overall ventilation of the entire perimeter panel, as
compared to longwall gob and pillared areas; and adequate ventilation to ensure that methane-air
mixtures and other gases, dusts, and fumes from worked-out areas are continuously diluted and
routed away from active workings into a return air course or to the surface. G. Ex. 2 at 3-7;
Tr. 301. Burns conceded that perimeter mining “is a safe form of mining” and provides less
exposure to certain hazards released into the air than other forms of mining. Tr. 173. Additional
testimony bolstered the fact that perimeter mining is a safe form of mining. Tr. 337 (Hasenstab)
(agreeing that the previously-approved ventilation plan has “significant” safety benefits);
Tr. 370-71 (Jankousky). Hartsog went further and stated that not only was perimeter mining a
safe form of mining, but it was safer than continuous mining. P. Ex. 37 at 2. Jankousky agreed.
Tr. 371 (“Definitely perimeter mining is safer.”). Even Burns conceded that perimeter mining
was a safer form of second mining. Tr. 224.

41 FMSHRC Page 512

Despite substantial evidence that perimeter mining is a safe and likely safer form of
mining with regard to recurring hazards, the credited, probative evidence in the record
establishes that MSHA failed to even consider, much less address, the comparative safety
advantages of perimeter mining under the previously approved ventilation plan. As noted above,
the undersigned has discredited Burns’ testimony at trial that he actually considered the safety
and health benefits of perimeter mining first raised by Knight Hawk in its March 13 letter.
More importantly, the Mine Act requires that MSHA “state the basis for its conclusion”
that safety and health standards prevailing under the interim plan satisfies the no-less-protection
standard. United Steel, 925 F.3d at 1282 (quoting Nat’l Min. Ass’n v. MSHA, 116 F.3d 520, 536
(D.C. Cir. 1997)). Any such statement by MSHA “is subject to review under the Administrative
Procedure Act and must manifest that MSHA engaged in reasoned decisionmaking.” Id. (citing
Nat’l Min. Ass’n v. MSHA, 116 F. 3d at 536).
Here, MSHA made no statement or analysis that the significant and uncontroverted safety
and health protections afforded by perimeter mining under the revoked ventilation plan were
actually considered or outweighed by safety and health standards that gave no less protection
against respirable dust, noise, red zone, and roof bolting under the interim ventilation plan.
MSHA failed to consider whether revoking the ventilation plan would result in Knight Hawk’s
performance of more advance continuous mining than it would have performed if the ventilation
plan remained in place. Because there is substantial evidence in the record demonstrating that
advance continuous mining is less safe than perimeter mining, MSHA failed to consider an
important factor in making its decision. Specifically, MSHA failed to consider the unique
statutory limitation, which cabined its revocation discretion.
Such unexplained agency action in excess of statutory limitations found in 30 U.S.C.
§ 811(a)(9) is arbitrary and capricious decision making. Motor Vehicle Mfrs., 463 U.S. at 43
(finding that an agency action is arbitrary and capricious “if the agency has . . . entirely failed to
consider an important aspect of the problem”); see also International Union, United Mine
Workers of America v. U.S. Department of Labor, 358 F.3d 40, 44-45 (D.C. Cir. 2004) (finding
that MSHA’s failure to provide an adequate explanation for its decision to withdraw an air
quality proposal was arbitrary and capricious action). Here, MSHA failed to offer any
explanation, let alone an adequate one, as to why the revocation of the previously approved
ventilation plan satisfied the limitations of the statutory no-less-protection standard. United Steel,
925 F.3d at 1282-83. This is a sufficient basis, standing alone, to vacate MSHA’s revocation
action and reinstate the previously approved ventilation plan.
In addition to failing to consider the no-less-protection standard, MSHA acted in an
arbitrary and capricious manner when it failed to consider a tracer gas test, which is usually
employed to confirm airflow. In fact, MSHA failed to even consider the use of tracer gas to
confirm its unreliable smoke tests. As noted above, tracer gas is a method of determining air
movement by releasing a certain gas in one area and them sampling for that gas in another area.
Beiter acknowledged that “[u]sually you would use tracer gas when we can’t confirm that there
is airflow.” Tr. 573. Hartsog confirmed that tracer gas would be the “proper tool for the task” of
determining the effectiveness of a bleeder system. Tr. 532-33.

41 FMSHRC Page 513

However, in deviation from acknowledged usual practice, MSHA’s survey team did not
use tracer gas, despite being unable to confirm airflow in the perimeter cuts. MSHA did not
provide any reasoned explanation as to why it did not use tracer gas. Such an explanation is
necessary, especially where testimony establishes that it was MSHA’s usual practice to use tracer
gas where airflow could not be confirmed. At the very least, MSHA should have used this
acknowledged usual practice to back up or confirm the findings of the smoke tests. This
deviation meant that MSHA did not consider an important factor, the use of tracer gas, when
revoking the mine’s ventilation plan. When such an aberration from usual practice in agency
action goes unexplained, it is arbitrary and capricious. Encino Motors, LLC v. Navarro, 136 S.Ct.
2117, 2120 (2016) (citing FCC, 556 U.S. at 515). Consequently, MSHA’s unexplained departure
from a usual practice was arbitrary and capricious.41
Finally, as noted above in Section III.A, MSHA did not properly consider differences in
the opinions and observations from the survey team and the contrary opinions and observations
from Knight Hawk’s representatives concerning the varied and inconsistent results of the smoke
tests. The survey team made observations of smoke rising approximately 44-feet away in dimly
lit perimeter cuts from areas that miners do not normally work or travel. Tr. 52-54. This unique
and questionable practice resulted in disagreements among the survey team and from Knight
Hawk’s representatives, which Beiter actively suppressed, directing some notes to be rewritten.
Tr. 104, 299, 349-350.
Additionally, MSHA failed to consider that the smoke tests provided varied and
inconsistent results regarding the direction and movement of airflow. As noted, Hasenstab
credibly testified that there was “[g]eneral uncertainty in regards to movement or no movement.”
Tr. 299-300. At times, the tests were not even capable of being repeated. Tr. 561-62.
Even if the undersigned were to overlook the aberrant use of unreliable smoke tests inside
the perimeter cuts, MSHA failed to consider the limitations placed on the survey team in
conducting the smoke tests, disagreements among the survey team and Knight Hawk
representatives concerning perceptible air movement in such cuts, and the varied and
inconsistent results of the survey. By not considering these important factors, MSHA acted in an
arbitrary and capricious manner. Motor Vehicle Mfrs., 463 U.S. at 43 (An agency action is
arbitrary and capricious where the agency “entirely failed to consider an important aspect of the
problem.”).
In short, MSHA revoked a previously approved ventilation plan through results-oriented,
unreliable, and suspect investigation techniques that failed to consider several important aspects
of the problem to ensure the reliability of data and observations relied upon and to ensure
compliance with an important statutory limitation. MSHA failed to consider the no-lessprotection standard; the simple use of tracer gas to validate or confirm the smoke tests; and the
disagreements within the survey team and from Knight Hawk’s representatives concerning the
varied and inconsistent results of the smoke tests. These failures demonstrate that MSHA acted
41

Due to MSHA’s heavy reliance on a ventilation survey that did not use tracer gas, this
deviation from an acknowledged usual practice alone is sufficient to find that the revocation of
the ventilation plan was arbitrary and capricious.

41 FMSHRC Page 514

in an arbitrary and capricious manner in a unique and unprecedented scenario to revoke a
previously approved plan found suitable by four District 8 managers or acting district managers
and by District 8 ventilation specialist Pritchard, who inexplicably was never consulted about the
revocation decision or called as a rebuttal witness. Any one of these three failures is sufficient to
find the revocation of the ventilation plan arbitrary and capricious.
C.

MSHA offered explanations counter to the evidence before it.

MSHA cited regulations that had no support in the record to justify its revocation of the
mine’s ventilation plan. MSHA revoked the previously approved plan by technical citation citing
five major deficiencies that Knight Hawk allegedly failed to address or include in a modified or
revised plan submission. The Secretary grounded the alleged deficiencies in mandatory standards
set forth in 30 C.F.R. §§ 75.334(b)(1); 75.334(c)(4); 75.364(a)(2)(iii) and (iv); 75.371(y), (z),
and (bb); and 75.372(b)(9). Of these regulations, only § 75.334(b)(1), discussed above, deals
with whether a ventilation plan is effective. The remainder of the regulations pertains to the
technical requirements of what must be in a written ventilation plan and map prior to submission
to MSHA for its consideration. Specifically, five of the remaining seven regulations—
§§ 75.334(c)(4); 75.371(y), (z), and (bb); and 75.372(b)(9)—pertain to what the ventilation plan
and map must “specify” and what “information” the ventilation plan and map must contain prior
to submission for approval. It should be emphasized that these regulations only pertain to what
technical details must be included in a submitted plan and map and not whether the submitted
plan and map constitute a suitable ventilation plan. In other words, these regulations prescribe
what information an operator must include in a ventilation plan and map when submitting them
for MSHA’s initial consideration, but they do not speak to whether it is a suitable ventilation
plan.
When MSHA approved the ventilation plan in 2010, MSHA found that the plan and map
were in compliance with 30 C.F.R. § 75.370. G. Ex. 12 at 1. Under § 75.370, a “ventilation plan
shall consist of two parts[:] the plan content as prescribed in § 75.371[,] and the ventilation map
with information as prescribed in § 75.372.” As such, when a plan and map are found in
compliance with § 75.370, they are likewise found in compliance with § 75.371 and § 75.372.
Five of the cited regulations that MSHA alleged that Knight Hawk had violated—
§§ 75.334(c)(4); 75.371(y), (z), and (bb); and 75.372(b)(9)—are components of § 75.371 and
§ 75.372. In 2010, MSHA found that the ventilation plan and map were in compliance with these
five regulations concerning the required technical details.42
When MSHA revoked the ventilation plan, nothing had changed in the written ventilation
plan or map from the 2010-approved version. Tr. 240-41. Other than the PEUG ventilation
survey, the Secretary offers no explanation as to why a plan found to include the necessary

42

Although 30 C.F.R. §75.370 does not explicitly reference 30 C.F.R. § 334(c)(4), the
requirements of § 334(c)(4)—that a ventilation plan specify “[t]he location of ventilating
devices”—are the same as those in 30 C.F.R. § 75.371(bb), which does incorporate § 334(c)(4)
by reference.

41 FMSHRC Page 515

information in 2010 was suddenly lacking in 2018.43 Furthermore, the Secretary offers no
explanation why, even if the 2018 PEUG ventilation survey were accepted at face value, it
rendered the technical details in the 2010 plan and maps improper for submission to MSHA for
consideration. In essence, MSHA has declared, without explanation, that the previously
approved ventilation plan and map are suddenly unacceptable even for an initial submission for
consideration by MSHA.
As noted above, an agency must “examine the relevant data and articulate a satisfactory
explanation for its action.” FCC, 556 U.S. at 513 (quoting Motor Vehicle Mfrs., 463 U.S. at 43).
Here, the Secretary offers no explanation, satisfactory or otherwise, why the technical details of
the 2010 written ventilation plan did not satisfy the requirements of §§ 75.371 and 75.372 in
2018 when the same technical details did so in 2010. Consequently, MSHA acted arbitrarily and
capriciously and contrary to law when it determined that Knight Hawk had violated these
regulations.
The remaining two regulations—§§ 75.364(a)(2)(iii) and 75.364(a)(2)(iv)—require that
the operator conduct weekly examinations of the ventilation system. Specifically,
§ 75.364(a)(2)(iii) requires that, at least every seven days, “[a]t least one entry of each set of
bleeder entries used as part of the bleeder system . . . shall be traveled in its entirety.”
Additionally, measurements shall be performed during the weekly examination to determine
methane and oxygen levels as well as whether air is moving in the proper direction at EPs as
prescribed in the ventilation plan.44 Section 75.364(a)(2)(iv) provides that an operator may offer,
“in lieu of the requirements of [(a)(2)(iii)], an alternative method of evaluation” in a submitted
ventilation plan.
MSHA’s determination that Knight Hawk violated § 75.364(a)(2)(iii) runs counter to the
evidence. As noted above, this regulation requires weekly examinations where an examiner
travels at least one bleeder entry of each set of entries, and for evaluations of air quality and
movement at EPs as identified in the ventilation plan. Hasenstab identified the weekly route
followed by an examiner to determine the effectiveness of the bleeder system at the EPs. P. Ex.
30 at 9; Tr. 320-22; see also Tr. 504 (Hartsog). Knight Hawk’s expert, Hartsog, credibly testified
that “it would be an effective way of evaluating the system. It meets the requirements in that it
goes to the extremities of the system. And it travels the entire perimeter of the bleeder area, of
the bleeder system, bleeder entries.” Tr. 505.
The undersigned is persuaded by Hasenstab’s description of the weekly examinations. Tr.
320-22.45 Hasenstab testified that the weekly examination involved traveling along the bleeder
43

It should be noted that MSHA cited Knight Hawk for operating without an approved
ventilation plan, not for failing to follow an approved ventilation plan. As such, the findings of
the ventilation survey should have no effect on whether the ventilation plan or map complied
with § 75.371 or § 75.372.
44

Section 75.362(a)(2)(iii) uses the term “measurement point locations” rather than
“evaluation points.”
45

The Secretary offered no evidence contrary to Hasenstab’s description.

41 FMSHRC Page 516

entries from EP to EP and checking air quality and direction at each EP. Tr. 320-21; G. Ex. 13 at
9. Beiter’s report to Burns confirmed that “[t]he required examination of the bleeder system
included travel of bleeder entries to evaluate its effectiveness” and that “[b]leeder entries were
routinely traveled in each block in which an [EP] was located and across the front of the
completed blocks.” G. Ex. 1 at 7. Consequently, the evidence clearly demonstrates that the
weekly examinations occurred and included travel of “[a]t least one entry of each set of bleeder
entries” to conduct the tests, meeting the requirements of § 75.362(a)(2)(iii). MSHA again
offered no explanation as to why the weekly examinations themselves were inadequate under
this regulation. As such, MSHA acted in an arbitrary and capricious manner when finding that
Knight Hawk violated § 75.362(a)(2)(iii). Motor Vehicle Mfrs., 463 U.S. at 43.
Additionally, although MSHA identified alleged deficiencies with the weekly
examinations, none of these alleged deficiencies are grounded in the regulations. First, Burns,
both in testimony and in his June 7 letter, identified the weekly examinations as deficient
because the plan did not
define[] the proper air direction through individual “blocks” . . . .
Definition of the proper direction of airflow through bleeder
entries and pillared areas, as well as the EP locations, also is
necessary for the mine examiner to determine if air is moving in
the proper direction when conducting tests during the weekly
examination.
G. Ex. 9 at 2. Setting aside for the moment that MSHA, again without explanation, found fault
with the written ventilation plan deemed acceptable in 2010, MSHA rejected Knight Hawk’s
offer to cure the alleged deficiency with written statements. Id. The only explanation for this
rejection was that displaying the airflow with arrows on the map itself was required by the plain
language of the regulation. Tr. 204. Because the Secretary relies on the plain language of the
regulation, the Secretary’s interpretation of the regulation does not get deference. Kisor v. Wilkie,
139 S.Ct. 2400, 2415 (2019) (“[A] court should not afford Auer deference unless the regulation
is genuinely ambiguous. If uncertainty does not exist, there is no plausible reason for deference.”
(citations omitted)); see also Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 216667 (2012) (holding that “[d]eference is . . . unwarranted when there is reason to suspect that the
agency’s interpretation ‘does not reflect the agency’s fair and considered judgement on the
matter in question.’”). Looking to the plain language of § 75.372, there is no requirement as to
how, or in what format, the information must be provided on the ventilation map. Consequently,
the Secretary does not provide any basis for this requirement, and this is yet another example of
MSHA acting in an arbitrary and capricious manner to achieve the desired result. Motor Vehicle
Mfrs., 463 U.S. at 43.
Second, MSHA also alleged that the weekly examinations were deficient because
[t]he specified means of evaluation of the worked-out area does not
provide sufficient information to determine the effectiveness of the
bleeder system including (a) whether air was moving in the proper
direction through all “blocks,” including the bleeder entries and

41 FMSHRC Page 517

pillared areas in each “block”; (b) the means to reasonably assure
ventilation of the extended-depth portions of the pillared areas; or
(c) the effectiveness of ventilation through the worked-out area.
G. Ex. 11 at 3. None of these requirements can be found in the cited regulation. The only
requirement in § 75.364(a)(2)(iii) is that “[a]t least one entry of each set of bleeder entries used
as part of the bleeder system . . . shall be traveled in its entirety” and that the weekly examination
will include tests for air quality and movement. There is no requirement in § 75.364(a)(2)(iii) for
additional tests outside of the EPs or the addition of more EPs than are required in the approved
ventilation plan. Based on the language from the citation, MSHA created additional requirements
that have no basis in the regulation. Again, it should be emphasized that this regulation pertains
to whether Knight Hawk is conducting weekly examinations as prescribed by the ventilation plan
and maps in the first instance, not whether those examinations revealed shortcomings in the
ventilation plan.46
On this point, Beiter testified that the evaluation was insufficient because “there were
places in the bleeder system in which airflow was not being controlled in a manner that would
allow that evaluation to take place.” Tr. 112-13. Even assuming that Beiter were completely
correct that there were portions of the mine that did not have controlled airflow, this testimony
goes to the results of the weekly examinations, not to whether Knight Hawk was conducting the
weekly examinations in compliance with § 75.364(a)(2)(iii) in the first instance. Even
uncontrolled airflow, except in extreme cases, would not prevent Knight Hawk from conducting
adequate weekly examinations. To put it another way, where § 75.364(a)(2)(iii) asks whether
Knight Hawk conducted weekly exams adequate to evaluate the bleeder system, Beiter faults
Knight Hawk for the expected results of that test. This is akin to faulting Knight Hawk for not
taking a test because, in MSHA’s view, Knight Hawk should fail that test. As this regulation
goes to whether Knight Hawk is conducting the proper examinations—not what the result of that
test may be—MSHA does not support this alleged violation.47 In short, it is a non sequitur to
allege that Knight Hawk failed to conduct weekly examinations because “there were places in
the bleeder system in which airflow was not being controlled.” Tr. 112-13.

46

Although the Secretary never presents this argument, the best argument in support of
the Secretary’s position is that, if Knight Hawk had been conducting proper weekly
examinations, those examinations should have demonstrated that the ventilation plan was not
suitable based on the results of the ventilation survey. Therefore, this argument continues, since
the weekly examinations did not reveal the plan’s unsuitability, Knight Hawk must not have
been performing proper weekly examinations. Even beyond the reasons stated above, this
argument fails because the improperly conducted ventilation survey lies at the heart of this
argument. Its reasoning fails once the keystone of the ventilation survey is found flawed.
47

Burns testified that “[w]e did not feel the bleeder system was being ventilated. We did
not feel it was being adequately examined.” Tr. 171. He did not, however, provide any concrete
support as to why the weekly examinations themselves were inadequate, nor did the Secretary
proffer any citations to support such conclusion. Rather, the Secretary only proffers results from
an unreliable and suspect ventilation survey in areas where examiners would not travel.

41 FMSHRC Page 518

As noted above, the law requires MSHA to offer a reasoned explanation when departing
from its standard course; “an agency changing its course must supply a reasoned analysis.”
Motor Vehicle Mfrs., 463 U.S. at 57 (quoting Greater Boston Television Corp. v. FCC, 444 F.2d
841, 852 (D.C. Cir. 1970). Here, the Secretary offers no reasoned explanation why the additional
deficiencies that it grafted onto regulatory language are necessary under § 75.364(a)(2)(iii), or
how Knight Hawk’s execution of the weekly examinations runs afoul of that regulation.48
Turning to § 75.364(a)(2)(iv), this regulation, by its plain language, only applies where
an operator submits an alternative weekly examination plan “in lieu of the requirements of”
§ 75.364(a)(2)(iii) in a ventilation plan. The evidence is clear that Knight Hawk did not submit
an alternative weekly examination plan in its ventilation plan. G. Ex. 12 at 9. Consequently,
MSHA’s reliance on this regulation runs counter to the evidence. Motor Vehicle Mfrs., 463 U.S.
at 43.
As a final matter, insofar as the Secretary relies on PPL P13-V-12 as the impetus that
changed the substantive requirements for the submitted ventilation plan and maps, such reliance
is improper as PPL P13-V-12 did not go through proper notice-and-comment rulemaking. As
noted in the Findings of Fact, on December 30, 2013, after the approval of the mine’s ventilation
plan, MSHA, through Administrator Kevin Stricklin, issued the policy “to clarify and improve
the examination and evaluation of bleeder systems by mine operators.” R. Ex. 13 at 1. PPL P13V-12 states that “[i]t is anticipated that District Managers would not suggest changes to the
relevant portions of existing approved ventilation plans absent conditions affecting the safety or
health of miners that arise following the issuance and effective date of” the policy. Id. PPL P13V-12 defines a bleeder system to “include[] the area from which pillars are wholly or partially
recovered, bleeder entries, bleeder connectors, and all associated ventilation control devices that
control the air movement through the area.” Id. at 2.
Hartsog credibly testified that PPL P13-V-12 changed the definition of a bleeder system.
Specifically, Hartsog testified that the policy includes as part of the newly defined bleeder
system “any pillar that’s left untouched . . . . Commonly, we don’t refer to certain pillars next to
the gob or around the gob as being part of the bleeder system. It’s part of the gob.” Tr. 513.
Hartsog stated that perimeter cuts “are in the abandoned area. Once those are mined, I would not
expect them to be re-examined once left.” Tr. 480. Hartsog also credibly testified that the policy
redefined what constituted a bleeder entry. He stated that the policy “defines bleeder entries as
being any entries that . . . are between or around blocks that have not been second mined. Before
this [policy] document came out, that was not the case.” Tr. 523.
PPL P13-V-12 made substantive and definitional changes to § 75.300 dealing with
bleeder systems that lack the force of law purportedly used to justify the revocation of Knight
Hawk’s ventilation plan. It is the Secretary’s burden to appropriately promulgate new proposed
changes in substantive legal requirements through proper notice-and-comment procedure.
30 U.S.C. § 811; see Alaska Professional Hunters v. FAA, 177 F.3d 1030, 1034 (D.C. Cir. 1999)
48

Like the unreliable smoke tests, this appears to be yet another example where MSHA
created additional requirements for extended-cut perimeter mining that were not required for
other forms of second mining.

41 FMSHRC Page 519

(“When an agency has given its regulation a definitive interpretation, and later significantly
revises that interpretation, the agency has in effect amended its rule, something it may not
accomplish without notice and comment.”); Drummond Company, Inc., 14 FMSHRC 695 (1992)
(affirming the judge’s holding that the Secretary was required to promulgate a policy program
letter through notice-and-comment rulemaking and concluding that the policy, as an invalidly
issued substantive rule, can be accorded no legal weight or effect). Further, the Secretary failed
to set forth any convincing reasons upon which policy changes may be exempt from notice-andcomment due to good cause. 5 U.S.C. § 553(b)(3)(B). Therefore, PPL P13-V-12 cannot justify
changing the requirements of the submitted ventilation plan and maps.
The undersigned finds unpersuasive the Secretary’s argument that, even apart from the
measurements taken within the perimeter cuts, the ventilation survey indicated that Knight Hawk
had to revise its ventilation plan. Specifically, the Secretary contends that “[t]he direction of air
movement in adjacent bleeder entries was not always consistent within a block[;] at several
locations air moved in opposing directions across an individual bleeder entry, and in portions
o[f] other bleeder entries there was no perceptible air movement at all.” Sec’y Post-Hearing Br.
at 48-49. This argument relies on the definition of “bleeder entry” from PPL P13-V-12. When
applying the pre-PPL P13-V-12 definition, the pillars that have not been second mined and are
not adjacent to the perimeter cuts are not part of the bleeder system. Tr. 513. Consequently,
applying the pre-PPL P13-V-12 definitions, there is a single bleeder entry and the ventilation
survey found consistent air movement through the bleeder entry and through the area adjacent to
the perimeter cuts. G. Ex. 18-1. The Secretary’s unpersuasive argument demonstrates exactly
how PPL P13-V-12 changed the definition of a bleeder entry and the substantive consequences
of that change.
In summary, MSHA acted in an arbitrary and capricious manner under Motor Vehicles
Mfrs., 463 U.S. at 43. First, MSHA relied on factors—the unreliable smoke tests within the
perimeter cuts and a bias against perimeter mining—that were not intended to be considered.
Second, MSHA entirely failed to consider important aspects of the revocation issue—the noless-protection standard; using tracer gas; and the disagreements within the survey team and
from Knight Hawk representatives concerning the varied and inconsistent results of the smoke
tests. Finally MSHA either offered an explanation that ran counter to the evidence before it or
failed to offer any explanation to support its decision that the previously approved plan no longer
satisfies §§ 75.370, 75.371, and 75.372.
IV. CONCLUSION
For the foregoing reasons, the technical citation is vacated, and the previously approved
ventilation plan is reinstated.

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

41 FMSHRC Page 520

Distribution:
Travis Gosselin
Office of the Solicitor
U.S. Department of Labor
230 S. Dearborn Street
Room 844
Chicago, IL 60604
R. Henry Moore
Fisher & Philips, LLP
301 Grant Street
Suite 4300
One Oxford Centre
Pittsburgh, PA 15219
/ztb

41 FMSHRC Page 521

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004
Telephone No.: (202) 434-9900 / Fax No.: (202) 434-9949

August 19, 2019
KNIGHT HAWK COAL, LLC,
Contestant
v.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

CONTEST PROCEEDING
Docket No. LAKE 2019-0087-R
Citation No. 9035600; 11/14/2018

Mine: Prairie Eagle – Underground
Mine ID: 11-03147

AMENDED DECISION AND ORDER
Appearances:

R. Henry Moore, Jackson Kelly PLLC, Pittsburgh, PA for the Contestant1
Travis W. Gosselin, Office of the Solicitor, U.S. Department of Labor,
Chicago, IL for the Respondent

Before:

Judge McCarthy

This proceeding is before the undersigned on a Notice of Contest and Motion to Expedite
filed November 15, 2018, by Knight Hawk Coal, LLC, pursuant to § 105(d) of the Federal Mine
Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(d) (“Mine Act”) and Commission
Procedural Rule 20(b). The contest challenges technical Citation No. 9035600-01, as modified,
issued to Contestant on November 14, 2018 for operating without an approved ventilation plan
under 30 C.F.R. § 75.370(a)(1), which states that “[t]he operator shall develop and follow a
ventilation plan approved by the district manager. The plan shall be designed to control methane
and respirable dust and shall be suitable to the conditions and mining systems at the mine.”
A hearing was held in St. Louis, Missouri, on March 28-29 and April 1, 2019. During the
hearing, the parties offered lay and expert witness testimony and documentary evidence.2
Witnesses were sequestered. The parties submitted post-hearing and reply briefs, the latest of
which was filed on June 7, 2019.

1

Although Mr. Moore was with Jackson Kelly, PLLC, when the contest was filed, he is
currently at Fisher Phillips LLP, Pittsburgh, PA.
2

In this Decision, “Tr.” refers to the hearing transcript, “P. Ex. #” refers to the
Contestant’s exhibits, and “G. Ex. #” refers to the Respondent’s exhibits. P. Exs. 13-28, 30, and
34-40, and G. Exs. 1-12 and 14-18, were received into evidence. Tr. 281-82.

41 FMSHRC Page 522

Based on a careful review of the record, including the parties’ post-hearing and reply
briefs, and observation of the demeanor of witnesses,3 the undersigned makes the following
findings of fact and conclusions of the law and orders that the technical citation be vacated and
the previously approved ventilation plan be reinstated.
.
I. STIPULATIONS
The parties submitted the following stipulations, which have been accepted into the
record:
1.
The Prairie Eagle Underground Mine (PEUG) is a “mine” as that term is defined
in Section 3(h) of the Mine Act.
2.
Knight Hawk is engaged in mine operations in the United States, and its mining
operations affect[ed] interstate commerce.
3.

Knight Hawk is the operator of the PEUG, MSHA ID No. 11-03147.

4.
Knight Hawk is subject to the jurisdiction of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. §801 et seq.
5.

The Administrative Law Judge has jurisdiction in this matter.

6.
Citation No. 8429603 was issued to the mine operator on November 14, 2018, and
subsequently modified to correct the citation number – Citation No. 9035600.
7.
The subject Citation was properly served by a duly authorized representative of
the Secretary upon an agent of Knight Hawk on the date and place stated therein, and may be
admitted into evidence for the purposes of establishing its issuance.
8.

The Prairie Eagle Underground Mine mines coal utilizing continuous miners.

9.
The PEUG began production in August 2006 with a single MMU. Since that time,
it has implemented four (4) additional MMU’s; each of them going through the extended cut
evaluation process where they began at 20-foot cuts and worked their way to 40-foot cuts. These
evaluations, as outlined in [Procedure Instruction Letter] I12-V-11 (Reissue of I10-V-09, I08-V03, I06-V-6), consisted of a mine history evaluation, plan provisions, training requirements, onsite evaluation, ventilation plan approval, and supplemental information pertaining to cut depth,
ventilation, respirable dust, methane, and roof support. All five MMU’s operate with extended
3

In evaluating testimony, the undersigned has taken into consideration the nature of the
questioning and testimony given in response, the demeanor of the witnesses, their evasiveness or
forthrightness, their interests in this matter, the inherent probability of their testimony in light of
other events, corroboration or lack of corroboration for their testimony, their experience and
credentials, and their consistency or lack of consistency vis-à-vis their own testimony and the
testimony of other witnesses.

41 FMSHRC Page 523

cut plans and each of them conducted perimeter mining. Specifically, each extended cut plan,
including perimeter mining, was approved by a District Manager, including the current one. The
Ventilation Plan for each MMU is identical.
10.
[Procedure Instruction Letter] 112-V-11 is marked as [G. Ex. 14] and may be
admitted into evidence.
11.
Program Policy Letter P13-V-12 is marked as [G. Ex. 13] and may be admitted
into evidence.
12.

Knight Hawk has conducted perimeter mining since January 2007.

13.
During the initial startup of the mine, the Roof Control Plan and the Ventilation
Plan [were] subject to an initial evaluation of both plans, including perimeter mining. That
continued for 22 months for the Roof Control Plan and 41 months for the Ventilation Plan.
14.
Roof bolting is generally eliminated during perimeter mining because after the
entry is mined and the continuous miner withdrawn, it is barricaded off. Some limited roof
bolting is still performed during perimeter mining in approaches to evaluation points. Per the
approved roof control and ventilation plans, installation of four props/jacks [were] required prior
to beginning each perimeter cut and the props/jacks must be left in place or removed remotely
after a cut is completed.
15.
Specifically, each MMU began at the following date and the extended cut plan,
including perimeter mining, was approved by the following District Manager on the following
dates:
* MMU 002 – June 2008, Acting DM Mary Jo Bishop (March 1, 2010)
* MMU 003 – December 2011, DM Robert Simms (August 17, 2012)
* MMU 004 – July 2013, DM Robert Simms (December 9, 2013)
* MMU 005 – August 2017, DM Ronald Burns (September 27, 2017)
16.

The Roof Control Plan timeline is as follows:
*

01/26/06 – Conditional approval with no perimeter mining. MSHA stated, “an
in-mine evaluation, to evaluate the mine’s specific mining conditions and the
effectiveness of the plan in addressing those conditions will be required before
any such approval can be considered.” The plan expired 07/26/06.

*

07/31/06 – Extension of the conditional approval until 01/26/07.

*

01/18/07 – Received a conditional approval for perimeter mining and an
extension of the base plan; both until 07/18/07.

*

January 2007 – Perimeter Mining begins at PEUG.

*

07/02/07 – Knight Hawk requested, “Due to the extent of mining completed to
date, the multiple visitations/evaluation from Mr. Jeff Williams, and the

41 FMSHRC Page 524

successful implementation of the plan, we are hereby requesting removal of
the ‘conditional’ approval of the Roof Control Plan and that the plan be placed
into effect.”

17.

*

07/10/07 – Conditional approval extended another 6 months for further
evaluation until 01/18/08.

*

01/11/08 – Knight Hawk requested removal of the ‘conditional’ approval.

*

03/11/08 – Conditional approval extended until 05/12/08.

*

04/11/08 – Consolidated plan submitted as per MSHA request.

*

05/30/08 – Plan approved without the ‘conditional’ constraint; including
perimeter mining.

The Ventilation Plan timeline is as follows:
*

08/02/06 – Conditional approval with perimeter mining. The plan expired
11/03/06.

* 10/31/06 – Request to either remove the ‘conditional’ approval or extend the
date.
*

11/08/06 – Extension of the conditional approval until 02/03/07.

*

January 2007 – Perimeter Mining begins at PEUG.

* 01/29/07 – Request to either remove the ‘conditional’ approval or extend the
date.
*

02/01/07 – Extension of the conditional approval until 05/03/07.

* 05/02/07 – Request to either remove the ‘conditional’ approval or extend the
date.
*

05/02/07 – Extension of the conditional approval until 08/02/07.

* 07/23/07 – Request to either remove the ‘conditional’ approval or extend the
date.
*

08/04/07 – Extension of the conditional approval approved until l0/09/07.

* 10/02/07 – Request to either remove the ‘conditional’ approval or extend the
date.
*

12/28/07 – Extension of the conditional approval until 03/28/08.

* 03/17/08 – Request to either remove the ‘conditional’ approval or extend the
date.
*

04/11/08 – Consolidated plan submitted as per MSHA request. The same date
[Contestant] submitted a consolidated Roof Control Plan per MSHA’s request
as well. No approval received.

*

12/08/08 – Consolidated plan submitted as per MSHA request. No approval
received.

41 FMSHRC Page 525

*

11/12/09 – Consolidated plan submitted as per MSHA request.

*

03/01/10 – Plan approved without the ‘conditional’ constraint; including
perimeter mining.

18.
A typical Perimeter Mining Panel is 1 mile in length and 1,240 feet in width;
approximately 150 acres. It takes approximately 11 months to complete a Perimeter Mining
Panel and PEUG typically seals each panel within 30 days from completion of mining.
19.
At the request of District Manager Ronald Burns, on December 19, 2017, the
MSHA Pittsburgh Safety and Health Technology Center (“Tech Support”) performed an
evaluation of the bleeder system which includes areas where perimeter mining was conducted at
Prairie Eagle Underground on January 9-10, 2018. A report was prepared and submitted to the
District Manger on or about February 8, 2018 and is marked as [G. Ex. 1] and may be admitted
into evidence.
20.
Similar evaluations were requested by District Manager Burns at the Viper Mine
operated by ICG Illinois LLC and of the Gateway North Mine operated by Peabody Gateway
North Mining LLC and are marked as [P. Exs. 35 and 34] respectively and may be offered into
evidence at the hearing in this matter, subject to the objections outlined in the Secretary’s Motion
in Limine.[4]
21.
On January 29, 2018, Knight Hawk met with MSHA to discuss the preliminary
findings of Tech Support’s evaluation of the mine’s bleeder system. During that meeting[,]
District Manager Ronald W. Burns requested that Knight Hawk address the issues raised by
those preliminary findings.
22.
On March 7, 2018, Knight Hawk received a copy of Tech Support’s report. A
copy of the report is marked as [G. Ex. 1]. A copy of the analytical gas sampling results from the
Tech Support evaluation is marked as [G. Ex. 16] and may be admitted into evidence.
23.
Knight Hawk’s ventilation plan including perimeter mining was last approved on
February 15, 2015. A copy is marked as [G. Ex. 12] and may be admitted into evidence.
24.
On March 13, 2018, Thomas Hasenstab[, a mining engineer and the current
superintendent for Knight Hawk,] sent a letter to Mr. Burns outlining Knight Hawk’s response
concerning perimeter mining. Such letter is marked as [G. Ex. 2] and may be admitted into
evidence.
25.
On April 12, 2018, Mr. Burns wrote Mr. Hasenstab directing Knight Hawk to
revise its ventilation plan. Such letter is marked as [G. Ex. 3] and may be admitted into evidence.
26.
On April 22, 2018, Mr. Hasenstab sent a letter to Mr. Burns submitting a response
to his letter of April 12, 2018 with an attached copy of Knight Hawk’s March 13, 2018 letter.
Such letter is marked as [G. Ex. 4] and may be admitted into evidence.
4

The undersigned denied the Secretary’s Motion in Limine. Order Denying the
Secretary’s Motion in Limine, 41 FMSHRC 217 (Mar. 2019) (ALJ).

41 FMSHRC Page 526

27.
On May 3, 2018, Mr. Burns wrote Mr. Hasenstab as a follow-up to a conference
call on April 30, 2018. Such letter is marked as [G. Ex. 5] and may be admitted into evidence.
28.
On May 15, 2018, Mr. Hasenstab wrote Mr. Burns responding to his May 3, 2018
letter. Such letter is marked as [G. Ex. 6] and may be admitted into evidence.
29.
On June 7, 2018, Mr. Burns wrote Mr. Hasenstab responding to his letter dated
May 15, 2018. Such letter is marked as [G. Ex. 7] and may be admitted into evidence.
30.
On July 5, 2018, Mr. Hasenstab wrote Mr. Burns in response to his letter of June
7, 2018. Such letter is marked as [G. Ex. 8] and may be admitted into evidence.
31.
On October 22, 2018, Mr. Burns wrote Mr. Hasenstab in response to his July 5,
2018 letter. Such letter is marked as [G. Ex. 9] and may be admitted into evidence.
32.
On November 14, 2018, Mr. Burns wrote Mr. Hasenstab revoking Knight Hawk’s
approved ventilation plan. Such letter is marked as [G. Ex. 10] and may be admitted into
evidence.
33.
In order to abate the Citation and to continue to operate[,] Knight Hawk submitted
a ventilation plan which MSHA approved. A copy of such Interim Plan is marked as [G. Ex. 15]
and may be admitted into evidence.
34.
Citation No. 9035600 was issued on November 14, 2018, pursuant to section
104(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 814(a) alleging a
violation of Section 75.370(a)(1).
35.
follows:

Under the heading and caption “Condition or Practice” the Citation alleges as

The mine operator is mining without a ventilation plan approved by the District
Manager. The operator’s plan is revoked on this date because it fails to address
existing, identified deficiencies. The parties’ negotiations have reached impasse.
In numerous discussions, and by letters dated April 12, May 3, June 7, and
October 22, MSHA advised Knight Hawk Coal of concerns and of certain issues
required to be addressed in its ventilation plan. Specifically:
1. The designs of the typical bleeder system does not control the air direction
through all individual “blocks”, including the air direction in the pillared area
within each “block”. [30 CFR Sections 75.334(b)(1), 75.334(c)(4), 75.371(bb),
and 75.372(b)(9).]
Section 75.334 requires a bleeder system to be used to control the air passing
through the area and to continuously dilute and move methane-air mixtures and
other gases….Both conditions must be addressed in the bleeder system design.

41 FMSHRC Page 527

The bleeder system in this case is not controlling the air in an effective manner as
determined by the ventilation survey conducted in January 2018.
Effective ventilation requires sufficient air movement in appropriate directions.
The ventilating device intended to control air movement through the area did not
effectively control the air movement.
Air movement was not perceptible in portions of the pillared areas, including
many extended-depth perimeter cuts. The air direction through the rooms from
which the perimeter cuts were mined w[as] not always consistent throughout the
length of the room, nor with the net direction of airflow through the block. No
perceptible air movement was observed in approximately 57 of the 138 perimeter
cuts examined. A few of the bolted perimeter cuts were examined in greater
detail. Movement of air was observed in approximately 57 of the 138 perimeter
cuts examined. A few of the bolted perimeter cuts were examined in greater
detail. Movement of air was detected in parts of some of these cuts near the
adjacent rooms, but not near the faces. Air movement was not perceptible in some
perimeter cuts in which air flowed past the front of the cut. Where air movement
was detected in perimeter cuts, it appeared to be intermittent and/or the result of
eddy currents created by air flowing past the front of the cut, rather than the result
of ventilation control devices directing airflow into the perimeter cuts.
Observations indicated the stronger the air flowing past the front of the cut, the
more pronounced the movement of air at the test location within the perimeter cut.
Movement of air caused by eddy currents for which no tests could practically be
conducted in all the perimeter cuts (some were not accessible due to their location
with respect to accessible areas) is not considered [an] appropriate or reliable
means to control air movement.
Air movement was not adequately controlled through all sets of bleeder entries.
Direction of air movement was not uniformly consistent in adjacent bleeder
entries within a block or throughout the entire length of individual bleeder entries.
Air moved in opposing direction across an individual bleeder entry at several
locations. No perceptible air movement was observed in portions of bleeder
entries in several locations. The direction of the net airflow through many blocks
was difficult to discern; in some blocks it could not be determined due to
inconsistent airflow direction. Tests for airflow directions using chemical smoke
in the rooms across the front and back of each completed block did not
consistently determine the direction of airflow through the block. Comparisons of
air quantity measurements between blocks (in the cut-through connections and in
the former section entries) were not always conclusive in determining air
direction within a block due to the net flow of air through the block being less
than reasonable inaccuracies in air quantity measurements.
2. The method to control air movement to ventilate the unbolted extended-depth
perimeter cuts within the pillared area is not provided. The extended cuts are part
of the pillared area within the worked-out area, and the air must be controlled to

41 FMSHRC Page 528

ensure effective ventilation of the extended-depth cuts. [30 CFR Sections
75.334(b)(1), 75.334(c)(4), 75.371(bb), and 75.372(b)(9)]
3. The air direction through all individual “blocks”, including the air direction in
the pillared area within each “block”, is not shown in the ventilation plan
drawings or on the ventilation map. [30 CFR Sections 75.364(a)(2)(iii) and
75.372(b)(9)]
The direction of airflow through bleeder entries and pillared areas, as well as at
evaluation point (EP) locations, must be defined to determine whether a proposed
means of evaluation will result in proper evaluation of the effectiveness of the
bleeder system, including the pillared areas. Definition of the proper direction of
airflow through bleeder entries and pillared areas, as well as at EP locations, also
is necessary for the mine examiner to determine if air is moving in the proper
direction while conducting tests during the weekly examination to evaluate the
effectiveness of the bleeder system.
4. The air direction at EP locations is not shown in the ventilation plan drawings
or on the ventilation map. [30 CFR Sections 75.364(a)(2)(iii), 75.371(y),
75.371(z), and 75.372(b)(9)]
The direction of airflow through bleeder entries and pillared areas, as well as at
EP locations, is necessary to determine whether a proposed means of evaluation
results is proper evaluation of the effectiveness of the bleeder system. Definition
of the proper direction of airflow through bleeder entries and pillared areas, as
well as at EP locations, is necessary for the mine examiner to determine if air is
moving the proper direction while conducting tests during the weekly
examination to evaluate the effectiveness of the bleeder system.
5. The specified means of evaluation of the worked-out area does not provide
sufficient information to determine the effectiveness of the bleeder system,
including (a) whether air was moving in the proper direction through all “blocks,”
including the bleeder entries and pillared areas in each “block”; (b) the means to
reasonably assure ventilation of the extended-depth portions of the pillared areas;
or (c) the effectiveness of ventilation through the worked-out area. [30 CFR
Sections 75.334, 75.364(a)(2)(iii), 75.364(a)(2)(iv), 75.371(y), and 75.371(z)]
In letters dated April 22, May 15, and July 5, 2018, Knight Hawk Coal failed to
provide adequate responses to MSHA’s concerns. In MSHA’s October 22, 2018
letter, Knight Hawk Coal was informed of the district manager’s intent to revoke
the ventilation plan if the stated deficiencies were not addressed.
Standard 75.370(a)(1) was cited 22 times in two years at mine 1103147 (22 to the
operator, 0 to a contractor).
36.
The Citation was terminated on November 13, 2018. A copy of such Citation is
marked as [G. Ex. 11] and may be admitted into evidence.

41 FMSHRC Page 529

37.
The parties have identified [G. Exs. 1-20] for the Secretary and [P. Exs. 1-39] for
Knight Hawk and such exhibits may be offered into evidence without objection except [P. Exs.
34-35 and G. Exs. 19-20].
Jt. Ex. 1.
II. FINDINGS OF FACT
At Prairie Eagle Underground Mine (“PEUG” or “mine”), Knight Hawk conducted
perimeter mining—a form of second coal mining5 where a series of extended-depth cuts6 are
made around the perimeter of a block, including the area between blocks. Perimeter mining
involves the reduction in pillars.7
Perimeter mining developed in Illinois where a high percentage of the land on the surface
of underground mines is prime farmland. P. Ex. 37 at 1. As a result, Illinois has strict limitations
on subsidence in mining. Id.8 Perimeter mining has been used since at least the 1990s. Id. at 2.
At the mine, each block consists of several rooms.9 Once the rooms are mined out
through continuous, advance mining, cuts are made into the solid coal around the perimeter of
the block. These perimeter cuts are unsupported and contain no permanent roof supports, except
for two cuts per block that are bolted in order to maintain access for examination of the cutthrough connection that will join a subsequent block. G. Ex. 1 at 5-7.
On March 1, 2010, MSHA approved a ventilation plan for the mine, without conditions.
Jt. Ex. 1, ¶17. The ventilation plan included 40-foot, extended-cut perimeter mining. G. Ex. 12 at
38. The ventilation plan required a bleeder system to continuously dilute and move methane-air
5

Hasenstab testified that second mining is also known as retreat mining. Tr. 339; see
also, Tr. 337 (“I agree that perimeter mining is second mining.”).
6

If perimeter cuts measure more than 20 feet from the nearest row of permanent roof
supports, they are considered extended-depth cuts. Tr. 75.
7

The Dictionary of Mining, Minerals, and Related Terms (2d ed. 1997) defines “pillar”
as “a column of coal . . . left to support the overlying strata or hanging wall in a mine.”
Hasenstab credibly testified that the areas between the blocks were pillars. Tr. 334-35 (“[W]e all
have agreed [it] is a pillar, albeit a very large pillar, and we are partially recovering from that
pillar.”).
8

The Dictionary of Mining, Minerals, and Related Terms (2d ed. 1997) defines
“subsidence” as “[t]he sudden sinking or gradual downward settling of the Earth’s surface with
little or no horizontal motion. . . . Subsidence may be caused . . . by human activity such as
subsurface mining or the pumping of oil or groundwater.”
9

The parties presented differing and contradictory evidence as to the precise definition of
a room. Compare G. Ex. 1 at 5 (describing multiple rooms within a single block) with Tr. 357
(“A block is a room.”). However, the precise definition of a room is not material to this Decision.

41 FMSHRC Page 530

mixtures and other gases, dusts, and fumes from a worked-out area away from active workings
and into a return air course or to the surface of the mine. Tr. 83, 325; see 30 C.F.R.
§ 75.334(b)(1). The approved ventilation plan stated that it “contains the minimum ventilation
system designed to control methane and respirable dust . . . in accordance with 30 C.F.R.
§ 75.370. The methods and practices are considered to be suitable for the mining systems
employed at this mine, and upon [approval], shall be followed until such time that a revised
method or methods are submitted for review and approved for use by the MSHA District
Manager.” G. Ex. 12 at 1.
Under the ventilation plan, the bleeder system consisted of a single bleeder entry into
each room and a bleeder connector—connecting the bleeder entry to the mined-out area—as well
as stoppings and curtains to control the airflow through the area. Tr. 500; see generally G.
Ex. 12.10 In order to evaluate the effectiveness of the bleeder system, the ventilation plan
included evaluation points (“EPs”). Tr. 320; P. Ex. 30 at 9. Examination of the bleeder system
involved traveling in each block to EPs to test the concentrations of methane and oxygen as well
as the direction and quality of airflow at the EPs. Tr. 319-21; P. Ex. 30 at 8, 9; see 30 C.F.R.
§ 75.364(a)(2)(iii).
Although MSHA approved the ventilation plan in 2010, former District 8 supervising
mining engineer and ventilation supervisor, Mark Eslinger,11 credibly testified that “District 8
want[ed] to get rid of perimeter mining.” Tr. 416. Eslinger testified about multiple occasions
since 2010 where MSHA employees of District 8 expressed the view that District 8 was
attempting to “get rid” of perimeter mining, including conversations that Eslinger had with Stan
Reider, an engineer in District 8, and Doug Herndon, the District 8 Roof Control Supervisor,
who told Eslinger that District 8 was “going to say [perimeter mining]’s illegal.” Tr. 417.
Eslinger also credibly testified that he served a 90-day detail in 2001 in Arlington, Virginia,
where he had discussions that led him to believe “that people in MSHA headquarters want to get
rid of perimeter mining.” Tr. 444. When pressed for names on extended cross-examination by
the Secretary, Eslinger credibly testified that “I have had discussions with Kevin Stricklin[, the
Administrator for Coal Mine Health and Safety (Tr. 470),] and he did not seem to be in favor of
perimeter mining.” Tr. 445. On the other hand, Thomas Hasenstab, a mining engineer and the
current superintendent for Knight Hawk, testified that he did not think that District Manager
10

Although Dennis Beiter, Respondent’s expert (infra note 15), testified that there were
up to five bleeder entries into a room, the undersigned does not credit this testimony. Tr. 61-63.
Beiter equivocated and was evasive on this point, stating that some of what he identified as
bleeder entries “are not necessarily called bleeder entries, but they function as bleeder entries.”
Tr. at 61. Beiter’s testimony also relies on the definition of bleeder entry from Policy P13-V-12,
discussed further below in Section III.C. As explained below, Policy P13-V-12 improperly made
a substantive change to regulations. Beiter’s reliance on Policy P13-V-12 further indicates the
unreliability of Beiter’s testimony on this point.
11

Eslinger worked at MSHA or its predecessor agency for 38 years. Based on his
experience as an MSHA ventilation supervisor, registered professional engineer, committee
member that rewrote subpart D (the §75.300 series) of the MSHA ventilation regulations from
1983 through the final rule in 1996, Eslinger was qualified, absent objection, as an expert witness
in mine ventilation and regulation for the Contestant. Tr. 399-410.

41 FMSHRC Page 531

Ronald Burns was trying to eliminate perimeter mining (Tr. 354), and Burns testified that he
“ha[d] not told anybody that [he’s] trying to keep them from doing perimeter mining” (Tr. 212).
The undersigned discounts this testimony from Hasenstab and Burns in light of the motivations
of the witnesses and the totality of the evidence in the record. In his role as the superintendent for
Knight Hawk, Hasenstab regularly interacts with District 8 and must maintain an ongoing
relationship with its District Manager. Furthermore, it is irrelevant what Hasenstab thinks or
Burns may have said; the important consideration is the actions, not the words, of MSHA and
District Manager Burns.
On December 30, 2013, after the approval of the mine’s ventilation plan, Stricklin issued
Program Policy Letter No. P13-V-12 (“PPL P13-V-12”) “to clarify and improve the examination
and evaluation of bleeder systems by mine operators.” G. Ex. 13 at 1. PPL P13-V-12 states that
“[i]t is anticipated that District Managers would not suggest changes to the relevant portions of
existing approved ventilation plans absent conditions affecting the safety or health of miners that
arise following the issuance and effective date of” PPL P13-V-12. Id. PPL P13-V-12 defines a
bleeder system to “include[] the area from which pillars are wholly or partially recovered,
bleeder entries, bleeder connectors, and all associated ventilation control devices that control the
air movement through the area.” Id. at 2. PPL P13-V-12 also states that
some entries and/or rooms surrounding the pillared area may not
have been routinely identified as traveled bleeder entries. These
entries and/or rooms have been commonly referred to as primary
internal airflow paths, open areas within the worked-out area, inner
bleeders, mine foreman entries, part of the gob, or by other names.
However, these entries and/or rooms around the pillared area are
an inherent part of many bleeder systems and function as entries.
Id. at 3-4.
Contestant’s expert, Gary Hartsog,12 credibly testified that PPL P13-V-12 changed the
definition of a bleeder system. Specifically, Hartsog testified that PPL P13-V-12 included as part
of the bleeder system “any pillar that’s left untouched . . . . Commonly, we don’t refer to certain
pillars next to the gob or around the gob as being part of the bleeder system. It’s part of the gob.”
Tr. 513. Hartsog testified that perimeter cuts “are in the abandoned area. Once those are mined, I
would not expect them to be re-examined once left.” Tr. 480. Hartsog also credibly testified that
PPL P13-V-12 redefined what constituted a bleeder entry. Tr. 493-94. He stated that PPL P13-V12 “defines bleeder entries as being any entries that . . . are between or around blocks that have
not been second mined. Before this [policy] document came out, that was not the case.” Tr. 523.

12

Hartsog was qualified, absent objection, as an expert witness in mine ventilation for the
Contestant based on his experience and education, including a Master of Science in mine
engineering with a thesis in mine ventilation, his status as a registered professional engineer in
West Virginia, and his experience teaching classes in mine ventilation, including bleeder
systems, for groups such as state mine inspectors and engineers. Tr. 458-471; see also P. Ex. 36
(resume for Hartsog).

41 FMSHRC Page 532

In 2017, Gateway North, operated by Peabody Gateway North Mining, LLC
(“Peabody”), was also conducting perimeter mining under an approved ventilation plan that
included 20-foot perimeter cuts. Tr. 159-160. When Gateway North submitted a plan for 40-foot
perimeter cuts, Burns talked with MSHA Arlington headquarters and Pittsburgh Tech Support
about performing a ventilation survey at Gateway North because “we had concerns that those 40foot cuts could be ventilated properly.” Tr. 160.13 From February 8 through March 1, 2017,
MSHA conducted a ventilation survey of the Gateway North Mine bleeder system and
“determined that there [were] deficiencies in the design of perimeter mining.” Tr. 159; P. Ex. 34.
As a result of the Gateway North investigation, MSHA found that
[a]ll methane concentrations detected were less than 0.1%; [a]ll
oxygen concentrations detected were greater than 20.6%; [t]he
outby room of the first pod was not ventilated; [t]he direction of
airflow through most pods was difficult to discern; [i]n ten of the
eighteen pods, the general direction of airflow was opposite the
direction indicated in the mine ventilation plan; [t]here was no
perceptible air movement found in almost all perimeter cuts
probed; [t]he total ventilating pressure differential between the belt
air course and the left side return entries at the front of the 2nd
North Panel was less than 0.2 inches of water gauge; [and t]he
pressure differential across MPL regulator was less than 0.1 inches
of water gauge.”
P. Ex. 32 at 2.
Although MSHA did not revoke Gateway North’s extant ventilation plan, MSHA never
approved a ventilation plan that included 40-foot perimeter cuts. Tr. 164-65. Shortly after the
ventilation survey, Gateway North ceased conducting perimeter mining entirely. Tr. 223, 235-36,
246-47.
After conducting the ventilation survey at Gateway North, MSHA decided to conduct a
ventilation survey at Viper Mine, another mine conducting perimeter mining, and at PEUG.
Tr. 160. MSHA chose to inspect PEUG first because MSHA “felt the hazards may be more for
Prairie Eagle than Viper.” Tr. 165. In particular, the Viper mine was only engaged in doing
perimeter cuts around, not between blocks. Tr. 166, 239.14

13

Prior to working for District 8, Burns had never worked in or inspected any mines that
had perimeter mining. Tr. 219.
14

After the ventilation survey at PEUG, MSHA conducted a ventilation survey at Viper
Mine. Tr. 168, 212, 215. Burns testified that he was diligently working with Viper in order to
approve 40-foot cuts based on good-faith negotiations. Tr. 216. However, the Secretary never
provided evidence that Viper presented a situation different than Gateway North or PEUG to the
point that it could satisfy District 8’s ventilation requirements for extended-cut perimeter mining.

41 FMSHRC Page 533

On January 9 and 10, 2018, Respondent’s expert, Dennis Beiter,15 headed a team from
MSHA Tech Support16—Bradley R. Wurl, Diane M. Doyle-Coombs, Gaetano J. Iannacchione,
A. Zharif MdAzmi, and George N. Aul—as well as John Hohn, District 8 ventilation specialist
supervisor, and Michael Pritchard and Bernard Reynolds, District 8 ventilation specialists. G. Ex.
1. Hasenstab and Bill Jankousky, the corporate safety director for Knight Hawk, assisted the
MSHA team on January 9, 2018. Tr. 297.
As part of the survey, the MSHA team measured air quality for methane and oxygen
levels through handheld devices and bottle samples and used chemical smoke to determine
airflow direction at various locations in the mine. G. Ex. 1 at 2. This included testing air quality
and airflow in the perimeter cuts themselves. Beiter testified that perimeter mining offered a
“unique opportunity” to conduct a survey in a pillared area because a survey team would not
ordinarily be able to access a mined-out area in second mining, such as longwall mining or full
pillar extraction. Tr. 563. Burns also testified that, when conducting a ventilation survey, “as a
general rule,” one does not go into or analyze the ventilation in pillared areas. Tr. 222.
When conducting tests in unbolted perimeter cuts, the MSHA team would not themselves
go into the unbolted perimeter cuts, which are areas where miners do not normally work or
travel. Tr. 298-99. The team would send a probe into the cut with one tube that would collect an
air sample and a second tube that would release smoke. This smoke was created using a chemical
reaction that resulted in heat, making the smoke rise. Tr. 536-37. The MSHA team then
attempted to observe the movement of the smoke from approximately 44 feet away in order to
determine whether, and in what direction, there was air movement in the perimeter cut. Tr. 5253, 257. To aid these attempts in the dimly lit perimeter cut, an MSHA representative would
point a light from outside the perimeter cut into the cut, while a pair of lights on the probe itself
also provided some level of illumination. Tr. 122, 520. The results of the chemical smoke tests
were not always repeatable. Tr. 561-62.
While conducting the PEUG ventilation survey, the members of the MSHA team were
not always in agreement as to the results of the chemical smoke tests. Tr. 543. Hasenstab
testified about disagreements within the survey team regarding perceptible movement and a
“general uncertainty in regards to movement or no movement” among MSHA personnel.
Tr. 299. Hasenstab also testified that “there were several times [Doyle-Coombs from the MSHA
survey team] said that there was perceptible movement and Mr. Beiter would come up and say
no, that’s not movement.” Tr. 378. Hasenstab also credibly testified that during the ventilation
survey:
There w[ere] definitely some varying interpretations of movement of the
smoke. . . . I do recall Mr. Beiter arriving and very quickly making a
15

Through his experience, including earning a Bachelor of Science in mining
engineering, working as a mining engineer for MSHA, and overseeing underground ventilation
in a mine, Beiter qualified as an expert in underground mine ventilation for the Respondent. Tr.
32.
16

The technical support group provides consultative support for MSHA’s coal mine
safety and health branch and metal and nonmetal safety and health branch.

41 FMSHRC Page 534

determination that the current perimeter cut we were in when smoke was
released was no perceptible movement. I disagreed with that interpretation
of that particular cut. From that point forward, MSHA personnel—I’ll just
say they seemed to be very quick as to a determination if there was
movement or not.
Tr. 349-50.
Similarly, Jankousky credibly testified that at least one member of the survey team,
Doyle-Coombs, observed perceptible movement, but became visibly upset when Beiter overruled
her observations and then directed that some of her notes be rewritten and some of her
observations, or those of Knight Hawk’s representatives, be changed in accordance with Beiter’s
interpretations. Tr. 378-79, 389-90, 567-68. Beiter also acknowledged that MSHA personnel
were not able to come to a consensus as to the results of these smoke tests until he intervened
and imposed his explanation of the “expected phenomenon.” Tr. 104-105.
MSHA’s survey team did not use tracer gas, a technique for determining air movement
by releasing a certain gas in one area and then sampling for that gas in another area to assess how
long it takes the tracer gas to move and to assess its concentration level. Tr. 533, 560. MSHA did
not use tracer gas despite the fact that Beiter admitted that “[u]sually you would use tracer gas
when we can’t confirm that there is airflow.” Tr. 573. Hartsog testified that he believed that the
chemical smoke tests were not valid tests but “an attempt by District 8 to get rid of perimeter
mining.” Tr. 415. Based on the record evidence, further stated below, bolstering this opinion,
including the unique and sui generis use of the smoke tests, the actions of Beiter during the
ventilation survey that resulted in overruling other members of the survey team, and the fact that
the smoke tests were at times unrepeatable, the undersigned finds Hartsog’s expert opinion to be
persuasive.
District Manager Burns testified about three particular concerns that he had with regard
to perimeter mining as a result of the PEUG ventilation survey and Beiter’s subsequent report.
First, Burns was concerned about the possibility of a spontaneous combustion17 event occurring
due to a general lack of ventilation. Tr. 239. Although at the time of the November 14, 2018 plan
revocation there had been no spontaneous combustion events at PEUG (G. Ex. 2 at 6), Burns
relied on heating events that he identified as spontaneous combustion events, and he was focused
on preventing a first spontaneous combustion event from occurring. Tr. 174-75.
Burns’ second concern involved the possibility of the release of methane from a roof fall
due to the fact that the perimeter cuts themselves were unbolted. Tr. 182. Hartsog testified that, if
there were a roof fall, any methane liberated in the roof fall would be effectively “diluted and
rendered harmless by the ventilation system.” Tr. 488; see also Tr. 149. The ventilation survey,
which found roof falls in some perimeter cuts but no elevated levels of methane, bolsters this
testimony. G. Ex. 18-1.
17

The Dictionary of Mining, Minerals, and Related Terms (2d ed. 1997) defines
“spontaneous combustion” as “[t]he heating and slow combustion of coal and coaly materials
initiated by the absorption of oxygen.”

41 FMSHRC Page 535

Burns’ third concern dealt with methane and oxygen levels within the general area of the
perimeter cuts. Tr. 177. Burns based this concern on a single bottle sample showing a
concentration of methane of 4.7% where a roof support drill hole penetrated a “bleeder” in the
roof of an active area not subject to perimeter mining. Burns relied on this event as “evidence
that methane may be encountered at any time.” Tr. 177; see also Tr. 149. Under the approved
ventilation plan, the methane from the bleeder was effectively diluted to less dangerous levels.
Tr. 149. Additionally, Hartsog testified that there were no ignition sources in the mine that might
contribute to the dangers of methane buildup. Tr. 492. The Secretary failed to rebut this
testimony.
On January 29, 2018, Beiter and Burns met with, and gave the preliminary results of the
survey to, Hasenstab, Jankousky, Dale Winter, Kyle Griggs, Bernie Kern, Brian Wallace, and
other staff from Knight Hawk. Tr. 93, 290-91. At this meeting, MSHA showed Knight Hawk
maps of the mine indicating the findings of the ventilation survey, including levels of methane
and oxygen as well as the presence and direction of airflow at specific locations. Tr. 167. These
maps were introduced into evidence as G. Ex. 18. After reviewing Beiter’s report, Burns
determined that there were deficiencies in Knight Hawk’s ventilation plan and the bleeder
system was not adequate and effective to ventilate the mine. Tr. 171-72. Burns requested that
Knight Hawk submit a revised ventilation plan to address the deficiencies. Tr. 168.
On February 8, 2018, Beiter and the MSHA team drafted an internal report summarizing
the results of the survey. G. Ex 1. Concerning air quality, the report stated that the highest
concentration of methane was 0.12% and that the lowest concentration of oxygen was 20.2%. Id.
at 1-2. These results were well within the allowable limit of methane below 1% under 30 C.F.R.
§ 75.323(c)(1), and the allowable minimum level of oxygen above 19.5% under 30 C.F.R.
§ 75.321(b). See also G. Ex. 16 at 2. Both Beiter and Hasenstab testified that the mine had a low
oxidation rate. Tr. 98, 326. The oxidation of coal results in a reduction in the level of oxygen. Tr.
510.
Concerning air movement, the report set forth several alleged deficiencies, including:
1) “The direction of net airflow direction through many blocks was difficult to discern; in some
blocks it could not be determined”; 2) “No perceptible air movement was observed in
approximately 57 of the perimeter cuts examined”; 3) “The air directions through the rooms . . .
were not always consistent throughout the length of the room, nor with the net direction of
airflow through the block”; 4) the “[d]irection of air movement was not always consistent in
adjacent bleeder entries within a block, or the entire length of individual bleeder entries”; and
5) “[n]o perceptible air movement was observed in portions of bleeder entries in a few
locations.” G. Ex. 1 at 2-3.18 The report and Beiter’s testimony discounted air movement
observed in perimeter cuts as a result of “eddy currents created by air flowing past the front of
the cut.” G. Ex. 1 at 2; Tr. 81. Beiter opined that he did not “think eddy current[s] would be an
appropriate means of actually providing ventilation for that extended cut because the eddy
currents are depend[ent] upon the amount of airflow moving by [the cut] and there is nothing in
the ventilation plan that indicated there had to be a certain amount of airflow or certain velocity
18

The bleeder entries referenced were those redefined in Policy P13-V-12. G. Ex. 13 at

3-4.

41 FMSHRC Page 536

of airflow in the airflow moving in that room in front of there.” Tr. 81. The previously approved
ventilation plan required 7,000 cubic feet per minute of airflow over the continuous miner during
perimeter mining. G. Ex. 12 at 7; G. Ex. 1 at 6. The previously approved ventilation plan did not
require any specific amount of airflow across perimeter cuts. G. Ex. 12. Nor is there any
evidence that MSHA suggested any minimum amount of airflow across perimeter cuts during
negotiations with Knight Hawk or listed this as a deficiency in the approved ventilation plan.
On March 13, 2018, Knight Hawk sent a letter in response to the concerns raised by
MSHA in the January 29, 2018 meeting and those raised in Beiter’s February 8 report, which
Knight Hawk did not receive until March 7, 2018. G. Ex. 2. According to Knight Hawk, the
short period of time since the receipt of the report limited its ability to comment, or to retain an
expert, if further evaluation became necessary. G. Ex. 2 at 6. Knight Hawk alleged that Beiter’s
February 8 report contained opinion and speculation and used “assumed definitions and
designation” of the terms “pillared areas, bleeder entries, partial recovery second mining, and
return air split” as well as differing interpretations among MSHA investigators as to the
definition of “no perceptible movement.” Id. at 7. The March 13 letter also stated that the
February 8 report contained conflicting information and inaccuracies between the report and the
sketches of the ventilation plan. Id. at 7.
Knight Hawk’s March 13 letter also documented, with extensive detail, the safety record
of perimeter mining and established that “[p]erimeter mining results in a lower miner exposure to
respirable dust, lower citations, a lower injury rate, a lower exposure to noise, and a lower
exposure to red zone/danger zone” and did not involve roof bolting in most perimeter cuts,
eliminating all hazards associated with that process. Id. at 2. The letter further noted that the
mine had never experienced any spontaneous combustion events. Id. at 6.
Testimony bolstered the safety benefits of perimeter mining. Burns conceded that
perimeter mining “is a safe form of mining” and provides less exposure to certain hazards
released into the air than other forms of mining. Tr. 173. Hasenstab agreed that the previously
approved ventilation plan has “significant” safety benefits. Tr. 337. Jankousky echoed this
sentiment. Tr. at 370-71. Contestant’s expert Hartsog testified that perimeter mining was not
only a safe form of mining, but that it was safer than continuous mining. P. Ex. 37 at 2; see also
Tr. 371 (Jankousky) (“Definitely perimeter mining is safer.”). Burns admitted that perimeter
mining was a safer form of second mining. Tr. 224.
On April 12, 2018, MSHA sent a letter to Knight Hawk that listed the alleged
deficiencies in the mine’s ventilation plan for the first time. G. Ex. 3. Although this letter does
not reference Knight Hawk’s March 13 letter, Burns testified that he considered that letter before
sending the April 12 letter. Tr. 136-37. The undersigned discredits this testimony. Burns’ April
12 response belies actual consideration of and fails to specifically address the safety and health
benefits of perimeter mining or whether revocation of the previously approved ventilation plan
would result in less protection under the interim plan. See generally G. Ex. 3. As Mine
Superintendent Hasenstab noted in his April 22 correspondence with Burns, “[w]e have attached
[our March 13] letter as we are currently unsure if you have received and/or read the letter
because your letter did not refer to it. We believe that it sets out the many safety and health

41 FMSHRC Page 537

benefits of our current mining system that you should consider as well as supporting the mine
specific nature of the plan.” G. Ex. 4 at 1.
Apart from self-serving trial testimony elicited in an attempt to show that MSHA
considered the important safety and health advantages of perimeter mining and did not
summarily discount them and leave them unanswered, there is no evidence during negotiations
that Burns actually addressed or expressly considered such arguments that he acknowledged at
trial were irrelevant. Rather, Burns testified that such purportedly considered arguments were not
relevant considerations during his ventilation plan review because they dealt with mining
conditions while the perimeter cuts were made (Tr. 173-74), and did not address MSHA’s
specified deficiencies that the bleeder system was being adequately ventilated, examined and
evaluated. Tr. 171-72. According to Burns, his concern was “after the bleeder system was
established, after they left there.” Tr. 174.
Burns failed to explain how or why he would actually consider safety and health concerns
that he deemed irrelevant. Furthermore, the Citation relied on § 75.334(b)(1), which concerns the
bleeder system during pillar recovery, not “after they left there.” Tr. 174. The undersigned
remains unconvinced by Burns’ post hoc rationalization at trial, which was never explained to
Contestant during negotiations. In these circumstances, the undersigned finds Burns’ testimony
that he actually considered the significant safety and health protections afforded by perimeter
mining under the revoked plan to be disingenuous and not credible.
The April 12 letter lists six alleged deficiencies in the mine’s previously approved
ventilation plan:
•

The design of the typical bleeder system does not control
the air direction through all individual “blocks,” including
the air direction in the pillared area within each “block.”

•

The method to control air movement to ventilate the
unbolted extended-depth perimeter cuts within the pillared
area is not provided.

•

The air direction through all individual “blocks,” including
the air direction in the pillared area within each “block,” is
not shown in the ventilation plan drawings or on the
ventilation map.

•

The air direction at EP locations is not shown in the
ventilation plan drawings or on the ventilation map.

•

The use of permanent ventilation control devices, such as
regulators and stoppings, to control air movement through
the worked-out area would be prudent. Temporary control
devices such as curtains are more susceptible to damage

41 FMSHRC Page 538

and/or inadvertent change than permanent control
devices.[19]
•

The specified means of evaluation of the worked-out area
does not provide sufficient information to determine the
effectiveness of the bleeder system.

G. Ex. 3 at 1. This letter also indicated that a bottle sample, taken on March 1, 2018, found a
concentration of methane of 4.7% where a roof support drill hole penetrated a “bleeder” in the
roof of an active area not subject to perimeter mining, “which is evidence that methane may be
encountered at any time.” Id.; see also Tr. 149. Under the approved ventilation plan, that
methane was effectively diluted to less dangerous levels by the air used to ventilate the section.
Tr. 149.
On April 22, 2018, Knight Hawk sent another letter to MSHA. G. Ex. 4. Knight Hawk
contended that the ventilation system in the worked out area “does not fit readily into the term
‘bleeder’ in 30 C.F.R. § 75.334(b) because the area at issue does not involve ‘pillar recovery.’”
Id. at 2 n.2. Knight Hawk did not advance this position at the hearing or in its post-hearing brief,
and the undersigned rejects it.
Addressing the alleged deficiencies listed in MSHA’s April 12 letter, Knight Hawk
explained how the approved ventilation plan does indicate airflow direction and ventilation
controls such as stoppings, regulators, and curtains. Id. at 2. Furthermore, Knight Hawk
explained that the ventilation plan was working effectively and preventing the accumulation of
gases, dusts, or fumes, as shown by the low levels of methane. Id. Knight Hawk also addressed
the concentration of methane found on March 1, 2018, stating that the bleeder was penetrated in
an active unit—not during perimeter mining—and reiterated that no roof penetration occurs
during perimeter mining. Id. at 1.
In its April 22 letter, Knight Hawk also stated that “[t]he ability to continue to use the
current plan is consistent with MSHA Program Policy Letter No. P13-V-12, which addresses the
evaluation of bleeder systems and states, ‘[i]t is anticipated that District Managers would not
suggest changes to the relevant portions of existing approved ventilation plans absent conditions
affecting the safety or health of miners.’” Id. at 2. Knight Hawk’s April 22 letter also reiterated
the contention that the definition of “perceptible movement” “varied among the MSHA
personnel” and different interpretations of “no perceptible movement” “was evident and
apparent” among the MSHA investigation team. Id. at 3. This letter closed by stating that “[i]t
appears we may be at an impasse in discussions about the plan.” Id. at 4.

19

MSHA later removed this alleged deficiency as a violation of a mandatory regulation
and acknowledged it as prudent, but not mandatory. G. Ex. 9.

41 FMSHRC Page 539

On May 3, 2018, MSHA responded to Knight Hawk’s April 22 letter. G. Ex. 5. MSHA
reiterated the six alleged deficiencies identified in its April 12 letter, but, for the first time,
included citations to regulations for each alleged deficiency. Specifically, the letter alleged that:
•

the bleeder system does not control the airflow direction through all blocks, including in
the “pillared area,” citing 30 C.F.R. §§ 75.334(b)(1), 75.334(c)(4), 75.371(bb), and
75.372(b)(9);

•

the method to control air movement to ventilate the perimeter cuts is not provided, citing
30 C.F.R. §§ 75.334(b)(1), 75.334(c)(4), 75.371(bb), and 75.372(b)(9);

•

the airflow direction is not shown through the blocks, citing 30 C.F.R.
§§ 75.364(a)(2)(iii) and 75.372(b)(9);

•

the airflow direction at EPs is not shown on the ventilation plan, citing 30 C.F.R.
§§ 75.364(a)(2)(iii), 75.371(y), 75.371(z), and 75.372(b)(9);

•

the plan should use permanent ventilation control devices rather than temporary ones,
citing 30 C.F.R. §§ 75.333(b)(5) and 75.334(c)(4); and

•

the specified means of evaluation do not provide sufficient information to determine the
effectiveness of the bleeder system, citing 30 C.F.R. §§ 75.334, 75.364(a)(2)(iii) and (iv),
and 75.371(y) and (z).

The letter ended by granting Knight Hawk two weeks to submit a ventilation plan in response to
the alleged deficiencies.20
On May 15, 2018, Knight Hawk responded and addressed each of the alleged
deficiencies and cited regulations in detail. G. Ex. 6. Knight Hawk’s May 15 letter goes into
great depth referencing each cited regulation, and even addresses those regulations that are not
applicable. This letter further elucidated Knight Hawk’s earlier contentions, stating that: 1) the
current ventilation plan dilutes and moves methane, other gases, dust, and fumes out of the
worked-out area; 2) controls such as stoppings, regulators, curtains, and connectors are
illustrated on the ventilation plan; and 3) the ventilation map indicates the airflow direction
within the entirety of the mine. Knight Hawk offered that it would also add more statements to
the plan to help make the exact airflow patterns more clear, such as, “[t]he direction of airflow
for the worked[-]out area in the 5W/3N/2ME is from EP4 to EP3 to EP2 to EP1.” Id. Knight
Hawk also argued that the mine’s ventilation system does not fit within the definition of
“bleeder” under 30 C.F.R. § 75.334(b) because the area does not involve “pillar recovery.” Id. at

20

MSHA originally granted Knight Hawk a two-week grace period for abatement,
beginning on May 3, 2018. Although the record does not indicate that MSHA explicitly granted
Knight Hawk extensions, MSHA did not issue the technical citation until November 14, 2018.

41 FMSHRC Page 540

5.21 Finally, Knight Hawk emphasized that when MSHA “Tech Support performed their
evaluation of airflow in the mined out entries,” they entered “barricaded/dangered off” areas
“where miners do not normally travel.” Id. at 7.
On June 7, 2018, MSHA responded to Knight Hawk’s May 15 rejoinder and alleged that
Knight Hawk “did not address the noted deficiencies” and “did not provide any other revisions
to the currently approved ventilation plan to address the 30 CFR standards.” G. Ex. 7 at 1.
MSHA then offered its explanation of why Knight Hawk’s responses were inadequate and relied
on the January 2018 ventilation survey and § 75.334(b)(1) to allege for the first time that the
bleeder system was not controlling the air passing through the area. Id. The letter specifically
emphasized that “[t]he location of current ventilating devices does not control the air movement
throughout the entire worked-out area” and “[t]he worked-out area is not ventilated throughout
the entire pillared area, as determined by the ventilation survey conducted in January 2018.” Id.
at 2. The word “throughout” is not found in the regulations cited in MSHA’s May 8 letter, but it
does appear in 30 C.F.R. § 75.334(a)(1), a different regulation than what the Citation relies on.
Despite Burns’ earlier May 3 letter citing specific regulations, Burns testified that the use and
emphasis of the word “throughout” in his June 7 letter was not referring to any specific
regulation, but it “was just my term there to make sure they understand that I’m not just talking
about the mouth [of a panel]. I mean from the active working section to the mouth of the panel.
Throughout the entire area has got to be done.” Tr. 205. The undersigned does not credit this
testimony. Rather, Hasenstab credibly testified that the term “throughout” does not capture the
intent of the plain meaning of the regulation, “I believed we complied in so far as the intent of
the law is to ventilate through the worked out area, not throughout.” Tr. 335.
MSHA’s June 7 letter also rejected Knight Hawk’s offer to add statements describing the
direction of airflow. G. Ex. 7. Specifically, the letter stated that “[s]tatements on maps are not a
substitute for showing the actual direction of airflow.” Id. at 1. The letter provided no support for
this assertion. At the hearing, Burns testified that written statements were not adequate because
“the way we read the regulation in plain language it says you show the direction on the maps and
you show the direction at EP[s].” Tr. 204. Hartsog testified that he had seen approved ventilation
plans that described airflow direction with words rather than arrows. Tr. 501-02.
After the June 7 letter, Knight Hawk spoke with MSHA personnel by conference call on
June 14 and in person on June 19, 2018. G. Ex. 8. Burns could not remember or testify about
either discussion. Tr. 206. At these meetings, two alternative methods for ventilating perimeter
cuts were discussed: 1) connecting two perimeter cuts from opposite sides by holing together
angled cuts with straight cuts so air would flow though there, and 2) “sawtooth” cutting. Tr. 32931. Knight Hawk rejected connecting angled and straight perimeter cuts because roof control and
subsidence issues were unfavorable, the geometry would not work with regard to crosscut
distances, and the combined cuts would exceed 40 feet. Tr. 332-33, 362. At the time, the term

21

As noted, the undersigned rejects this pre-hearing position. As found above, perimeter
mining involves second mining and pillar recovery. Consequently, perimeter mining at the mine
squarely falls under § 75.334(b)(1) and its requirements that “[d]uring pillar recovery a bleeder
system shall be used.”

41 FMSHRC Page 541

“sawtooth” cutting was never defined by MSHA, nor did Knight Hawk ask for clarification of
the term. Tr. 333, 344.22
On July 5, 2018, Knight Hawk sent a letter in response to MSHA’s June 7 letter and the
subsequent discussions with MSHA personnel. G. Ex. 8. Knight Hawk opined that its May 15
letter offered changes to the currently approved ventilation plan that addressed the alleged
deficiencies and the parties were at apparent impasse. In anticipation of MSHA’s issuance of a
technical citation, Knight Hawk requested that abatement be extended until an ALJ ruled on the
validity of the existing plan because the mine “has operated safely and effectively under the
current plan since 2007 and it provides significant safety benefits.” Id. Otherwise, Knight Hawk
requested discussions about what was acceptable to abate the technical citation and operate under
an interim ventilation plan during litigation. Id.
On October 22, 2018, MSHA sent another letter to Knight Hawk. G. Ex. 9. This letter
again laid out the alleged deficiencies, but listed only five deficiencies. Id. MSHA revised one of
the previously identified deficiencies—the alleged requirement that the ventilation plan use
permanent rather than temporary ventilation controls—as “prudent” rather than mandatory.
Burns’ letter stated that “[a]bsent modification of the ventilation plan to provide the miner
protection outlined above, I will revoke your currently approved plan on November 12, 2018.”
Id. at 3. The letter concluded that MSHA “will be more than happy to discuss a plan, which
would be consistent with the provisions addressed above[, which] would permit mining to be
conducted until a resolution is reached.” Id.
The record establishes that MSHA did not consider the experiential opinions and learning
from District 8’s own ventilation specialists and inspectors intimately familiar with the mine
during the plan revocation process. District Manager Burns, who was generally unfamiliar with
and had limited experience with perimeter mining (Tr. 240-41), confirmed that he did not talk to
or seek input from his own inspectors during the plan revocation process, despite the fact that his
ventilation specialists would regularly perform six-month plan reviews on site and review mine
maps to identify problems and ensure the plan was still “adequate.” Tr. 155-58, 233-34. During
such reviews, “[a]n evaluation of the bleeder system was done in accordance with what the plan
was as far as one of the evaluation points. We did not go to any area that the mine examiners
would not go to during that time.” Tr. 158. District 8 ventilation specialist, Mike Pritchard,
regularly performed such ventilation plan reviews. Tr. 383. Specifically, “he walks the air
courses, walks intakes, returns, bleeders, and he . . . evaluates the bleeders.” Tr. 387. In January
2019, shortly after revocation of the plan, safety director Jankousky discussed perimeter mining
and MSHA’s revocation of the ventilation plan with Pritchard during an underground, six-month

22

Hasenstab testified that sawtooth cutting involved making perimeter cuts where two of
them intersected at the back end, although the design and layout would be much different that
holing perimeter cuts together. Tr. 359.

41 FMSHRC Page 542

ventilation review. Tr. 381-82. Pritchard told Jankousky that he did not see anything wrong with
the revoked system of ventilation for perimeter mining. Tr. 381, 383, 385-86.23
By attachment to letter dated November 5 and attached revisions to letter dated
November 6, 2018, Knight Hawk submitted an interim ventilation plan that did not include
perimeter mining. G. Ex. 15; compare G. Ex. 12 with G. Ex. 15. By separate letters both dated
November 14, 2018, MSHA approved the interim plan (G. Ex. 15), which does not permit
perimeter mining (Tr. 354), and formally revoked the mine’s ventilation plan, which included
perimeter mining (G. Ex. 10). On November 14, 2018, MSHA also issued the technical citation
at issue under 30 C.F.R. § 75.370(a)(1) for mining without a ventilation plan approved by the
District Manager. G. Ex. 11.24 Under questioning from the undersigned, Burns verified that
nothing had changed at all since 2010, except for the ventilation survey. Tr. 240-41.25

23

Former District 8 ventilation supervisor Eslinger testified based on extensive
experience with numerous district managers that a district manager would consult with his own
ventilation specialists when contemplating revocation of a ventilation plan, and could not recall
any instance in which MSHA “just yanked a plan on somebody, disapproved a plan.” Tr. 424-26.
When asked by the undersigned whether a district manager ever consulted with him about
revoking a perimeter mining plan, Eslinger testified:
When Robert Phillips became the district manager in about 2007, he
made some comments about perimeter mining. And he expressed his desire to
get rid [of] and eliminate perimeter mining. He brought up some issues. I
responded to some of the issues. The roof control supervisor responded to
some of the issues. We had some discussions. The plans for perimeter mining
were not revoked while I was the supervisor. We had some new mines going
in, and they had a heck of the time trying to get perimeter mining approved,
but we did not revoke any of the plans for the mines that had perimeter mining
in them.
Tr. 425.
24

When MSHA first issued the citation, the citation number used was already in use for
another violation, and MSHA modified the original citation to change the citation number. G.
Ex. 11; Tr. 267.
25

Q.

What changed, if anything, between approval of the plan and revocation?

A.
We done our investigation and found out that areas of the mine was not being
ventilated. And so the plan needed to address it at that time. Before we done the
investigation in 2018 for them and 2017 for Prairie Eagle. I don't think we had ever done
any kind of same type of ventilation survey on perimeter mining. When I got there in
2015, and this was like two months after I had been there, maybe less than two months,
we approved the plan. Yeah, I knew—I had questions about it, about perimeter mining
because I had never seen it before. I was used to from eastern Kentucky, full pillar
(continued…)

41 FMSHRC Page 543

Subsequent to the revocation of the mine’s ventilation plan, two alleged spontaneous
combustion events occurred at the mine, one underground and one on the surface. Tr. 175, 376,
492, 512. The evidence as to the cause of these events was inconclusive. Tr. 376. Having
considered arguments and evidence as to the progeny of the events, the undersigned credits
Jankousky’s conclusion that it could not be determined whether the events were spontaneous
combustion. Tr. 376. Furthermore, perimeter mining was not involved in either event, and both
events occurred after the revocation of the ventilation plan. Tr. 225. Consequently, the
undersigned finds that these events have little material bearing on resolution of the issues
presented.
III. LEGAL PRINCIPLES AND ANALYSIS
The Secretary contends that the sole issue in this case is whether MSHA acted arbitrarily
and capriciously when it revoked the mine’s previously approved ventilation plan. Tr. 11. Knight
Hawk contends, instead, that there are four issues: 1) whether the previously approved
ventilation plan was suitable; 2) whether the revocation was improper and contrary to law;
3) what is the Secretary’s burden of proof in this matter; and 4) how should the decisions in
Prairie State Generating Co., LLC, 35 FMSHRC 1985 (July 2013) (Prairie State I), aff’d,
792 F.3d 82 (D.C. Cir. 2015) (Prairie State II), and Signal Peak Energy, LLC, 40 FMSHRC
1059 (Aug. 2018), appeal docketed, No. 18-72837 (9th Cir. 2018), be considered with Peabody
Coal Co., 18 FMSHRC 686 (1996). Tr. 11.
As noted in the undersigned’s Order Denying the Secretary of Labor’s Motion in Limine,
Commission case law regarding the standard of review applicable to determining whether a
district manager’s rejection of a ventilation plan appears to be in a state of flux. 41 FMSHRC
217 (Mar. 2019) (ALJ). MSHA alleges that Knight Hawk operated without a suitable ventilation

25

(…continued)

extraction or something, but at that time, I did not know enough about this to know
exactly how I guess the ventilation system and everything would work or where it would
not be working. So when we done the ventilation survey starting at Gateway North, we
found out a lot. I went through this and developing—not developing concerns, but
looking at concerns we found that yes there is areas that’s not ventilated. That’s what
happened between when this was approved and when we revoked.
Tr. 240-41 (emphasis added). The undersigned finds Burns’ verbal leak that they were
“developing . . . concerns” to be telling. This verbal leak adds credence to the inference that
Burns’ concerns arose out of a preconception of what he expected to find at PEUG after Gateway
North, rather than treating PEUG independently, and to the inference that MSHA wanted to get
rid of perimeter mining.

41 FMSHRC Page 544

plan as required by § 303(o) of the Mine Act. 30 U.S.C. § 863(o);26 see also Zeigler Coal Co. v.
Kleppe, 536 F.2d 398, 406-07 (D.C. Cir. 1976). If I were working from a clean slate, I would
find that the burden of proof that lies with the Secretary is the same as any violation the
Secretary brings before this tribunal. It is a burden of proof the Secretary must satisfy before this
fact-finding body and not a standard of review as if the undersigned merely functions as an
appellate body for the Secretary’s decision. As the Court of Appeals for the District of Columbia
found in Zeigler,27 ventilation plans are enforceable as mandatory standards. 536 F.2d at 409.
Consequently, during the enforcement of such a plan, the Secretary would have to satisfy the
same burden for a violation of § 303(o) as any other mandatory standard found in the Mine Act.
Id. (“[W]e conclude that requirements of duly adopted ventilation plans are generally
enforceable under § 104(b) and the statute’s other enforcement provisions.”). The revocation of a
ventilation plan in its entirety should not provide a means for the Secretary to avoid this burden. I
would reject the position that the Commission must defer to the Secretary because to act
otherwise would be to “displace entirely the expertise of the Secretary.” Mach Mining, LLC v.
MSHA, 728 F.3d 643, 658 (7th Cir. 2013) (Mach Mining II), aff’ing, Mach Mining, 34 FMSHRC
1784 (Aug. 2012) (Mach Mining I). This position gives short shrift to the expertise inherent in
the Commission itself. 30 U.S.C. § 823(a) (“The Commission shall consist of five members . . .
who by reason of training, education, or experience are qualified to carry out the functions of the
Commission.”).28
If I were working from a clean slate, I would apply the standard as articulated in
Peabody. Under this standard, the Secretary bears the burden of proof to establish by a
preponderance of the evidence that “(1) the previously approved [ventilation] plan is no longer
suitable to the conditions and the mining system of the coal mine, and (2) the new plan provision
is suitable.” 18 FMSHRC at 690. To be blunt, the Secretary utterly fails to satisfy this burden. As
more fully explained below, the Secretary relies on evidence—the smoke tests and the
ventilation survey overall—that I find unreliable. Of note, the Secretary failed to establish the
propriety or reliability of the smoke tests when used in second mining, and substantial evidence
demonstrated that the smoke tests as conducted at the mine were unreliable. Tr. 52-53, 561-62.
26

“A ventilation system and methane and dust control plan and revisions thereof suitable
to the conditions and the mining system of the coal mine and approved by the Secretary shall be
adopted by the operator and set out in printed form within ninety days after the operative date of
this title. The plan shall show the type and location of mechanical ventilation equipment installed
and operated in the mine, such additional or improved equipment as the Secretary may require,
the quantity and velocity of air reaching each working face, and such other information as the
Secretary may require. Such plan shall be reviewed by the operator and the Secretary at least
every six months.” 30 U.S.C. § 863(o).
27

Although Zeigler did not explicitly adopt the arbitrary and capricious standard, Zeigler
began the path that ultimately led to the application of the arbitrary and capricious standard of
review seen in Mach Mining, LLC v. MSHA, 728 F.3d 643, 657-58 (7th Cir. 2013) (Mach Mining
II), aff’ing, Mach Mining, 34 FMSHRC 1784 (Aug. 2012) (Mach Mining I).
28

I see the same flaws inherent in Martin v. Occupational Health & Review Commission,
499 U.S. 144, 152-53 (1991) (“[T]he Secretary is more likely to develop the expertise relevant to
assessing the effect of particular regulatory interpretation.”).

41 FMSHRC Page 545

Credible evidence demonstrated that the ventilation at the mine effectively ventilates the mine
according to 30 C.F.R. § 75.334(b)(1). This evidence includes levels of methane and oxygen that
were described as “excellent.” Tr. 428. Furthermore, I found the Secretary’s expert to be, by and
large, unreliable. He was evasive and frequently avoided answering questions directly.
Turning to the merits of Burns’ three concerns regarding perimeter mining, the
concentrations of methane and oxygen established that the previously approved ventilation plan
continuously diluted and moved methane-air mixtures and other gases, dusts, and fumes from the
worked-out area. G. Ex. 1 at 1-2. The evidence also established that, prior to the revocation of
the ventilation plan, PEUG did not experience any spontaneous combustion events. G. Ex. 2 at 6.
Finally, the plan adequately mitigates any risk of a roof fall, and testimony established that a
hypothetical roof fall would be effectively rendered harmless. Tr. 488. In other words, Burns’
concerns were unwarranted. The record demonstrates that the previously approved plan
continues to be suitable to the conditions and mining system of the mine. Consequently, the
Secretary failed to satisfy by a preponderance of the evidence that Knight Hawk’s previously
approved ventilation plan was unsuitable.
However, the undersigned is not working from a clean slate. In Signal Peak, the
Commission split 2-2 on what standard of review applies when considering an MSHA district
manager’s revocation of a ventilation plan, creating no precedential decision.29 Then-Chairman
Jordan and Commissioner Cohen affirmed the judge’s application of the arbitrary and capricious
standard of review of the district manager’s decision to reject a ventilation plan submitted by the
operator. Signal Peak, 40 FMSHRC at 1064.30 They relied on Mach Mining, where the Seventh
Circuit found that that a Commission majority correctly determined that a district manager’s
refusal to approve a ventilation plan should be reviewed under an arbitrary and capricious
standard, and on Prairie State II, where the D.C. Circuit held that the arbitrary and capricious
standard of review applied by the Commission majority to the Secretary’s plan-suitability
determination “was at least a permissible one.” Id. at 93.
By contrast, Commissioners Young and Althen found that the judge applied the wrong
legal standard and that substantial evidence did not support a finding that the operator’s plan was
unsuitable to provide safe and healthful ventilation at the specific mine. Signal Peak,
40 FMSHRC at 1074. They opined that Mach Mining I and Prairie State I were wrongly
decided; however, they acknowledged that those Commission decisions were upheld by the

29

Accordingly, the judge’s decision to apply the arbitrary and capricious standard of
review was affirmed under Pennsylvania Electric Co., 12 FMSHRC 1652 (Aug. 1990), aff’d on
other grounds, 969 F.2d 1501 (3d Cir. 1992).
30

Generally, under the arbitrary and capricious standard of review, a district manager’s
decision will be set aside only where MSHA “relied on factors which Congress [had] not
intended it to consider, entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in view or the product of agency
expertise.” Signal Peak, 40 FMSHRC at 1065, citing Motor Vehicle Mfrs. Ass’n of U.S. Inc. v.
State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983).

41 FMSHRC Page 546

circuit courts as permissible interpretations. Id. at n.10.31 In the end, Commissioners Young and
Althen stated that it was unnecessary to reject such circuit court precedent because substantial
evidence did not support rejection of the operator’s proposed ventilation plan when analyzed
under the safety standard at issue. They observed that the Commission has taken conflicting
positions on the Secretary’s burden of proof, comparing the Peabody and C.W. Mining,
18 FMSHRC 1840 (Oct. 1996), cases cited by Contestant in his Response, with both the Mach
Mining and Prairie State I cases cited by the Secretary in his Motion. Signal Peak, 40 FMSHRC
at 1075-76.32
Thus, given the apparent evolving Commission precedent concerning the appropriate
standard of review for evaluating a district manager’s revocation of a mine’s ventilation plan, the
recent change in Commission composition,33 and the prerogative of the new Commission to
rationally explain reversal of existing precedent,34 even in light of appellate court or Supreme

31

Commissioners Young and Althen declined to characterize their view on the
Secretary’s burden of proof as a “standard of review,” stating that “the outcome of a suitability
determination in this case does not depend upon a didactic characterization of the standard of
review as beyond a preponderance of the evidence or abuse of discretion.” Id. at 1079.
32

But see Mach Mining II, 728 F.3d at 658 n.21, cursorily noting that further explanation
regarding departure from precedent by the Commission was unnecessary given the court’s
conclusion that the statute’s regulatory scheme requires a more deferential standard of review. In
doing so, however, the court in Mach Mining II failed to require the Commission to give any
reasoned explanation as to its change in interpretation. FCC v. Fox Television Stations, Inc.,
556 U.S. 502, 515 (2009) (FCC) (“An agency may not . . . depart from a prior policy sub silentio
or simply disregard rules that are still on the books. And of course the agency must show that
there are good reasons for the new policy.”). I also reject the notion that the more deferential
standard of review is required, rather than simply permissible, under the statute. As noted above,
the court in Mach Mining II based its finding on the assumption that “[t]o permit the
Commission to substitute its view for that of the Secretary simply would displace the expertise of
the Secretary,” an assumption that discounts the expertise of the Commission itself. Mach
Mining II, 728 F.3d at 658.
33

Chairman Marco M. Rajkovich, Jr. and Commissioners William I. Althen and Arthur
R. Traynor, III were sworn into office on Monday, March 25, 2019. They join Commissioners
Mary Lu Jordan and Michael G. Young to form a new five-member Commission.
34

See e.g., Mach Mining II, 728 F.3d at 658 n.21, citing Lone Mountain Processing, Inc.
v. Sec’y of Labor, 709 F.3d 1161, 1164 (D.C. Cir. 2013) (“As we have long held, an agency
changing its course must supply a reasoned analysis indicating that prior policies and standards
are being deliberately changed, not casually ignored.”).

41 FMSHRC Page 547

Court affirmation of existing precedent,35 the undersigned concludes that the most recent
Commission precedent follows the permissible interpretation that applies an arbitrary and
capricious standard in these circumstances. Although the Commission split 2-2 in Signal Peak,
creating no precedential decision and leaving the judge’s decision below in place, this is a
permissible interpretation and one that the Commission may, upon a reasoned explanation,
change. FCC, 556 U.S. at 514.
Accordingly, applying the arbitrary and capricious standard as a permissible
interpretation, the Secretary must establish that MSHA’s revocation of the mine’s previously
approved and presumptively suitable ventilation plan was not arbitrary, capricious, an abuse of
discretion, or otherwise contrary to law (“arbitrary and capricious”). 5 U.S.C. § 706(2)(A);
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983); Prairie State, 792 F.3d at 82; Mach Mining I, 34 FMSHRC at 1790.
It is of critical note that the agency bears the burden of articulating a “rational connection
between the facts found and the choice made.” Bowman Transp., Inc. v. Arkansas-Best Freight
System, Inc., 419 U.S. 281, 285 (1974) (quoting Burlington Truck Lines v. United States,
371 U.S. 156, 168 (1962)). This inquiry involves “examining the reasons for agency decisions—
or, as the case may be, the absence of such reasons.” Judulang v. Holder, 565 U.S. 42, 52-53
(2011); see FCC, 556 U.S. at 515 (noting “the requirement that an agency provide reasoned
explanation for its action”).
As delineated in Motor Vehicle Mfrs., an agency action is arbitrary and capricious when
it: 1) relies on factors that were not intended to be considered; 2) entirely failed to consider an
important aspect of the problem; 3) offered an explanation for its decision that runs counter to
the evidence before the agency; or 4) is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise. 463 U.S. at 43. MSHA acted arbitrarily
and capriciously under these factors.
A.

MSHA relied on inappropriate factors.

MSHA revoked the previously approved ventilation plan by technical citation citing five
major deficiencies that Knight Hawk allegedly failed to address or include in a modified or
revised plan submission. MSHA grounded the alleged deficiencies in mandatory ventilation
standards set forth in 30 C.F.R. §§ 75.334(b)(1); 75.334(c)(4); 75.364 (a)(2)(iii) and (iv);
75.371(y), (z), and (bb); and 75.372(b)(9). Although the Secretary mentions seven other

35

See, e.g., John Deklewa & Sons, 282 N.L.R.B. 1375 (1987), enforced sub nom. Int’l
Ass’n of Bridge, Structural & Ornamental Iron Workers Local 3 v. NLRB, 843 F.2d 770, 780-81
(3d Cir. 1988), cert. denied, 488 U.S. 889 (1988) (overruling previous Board interpretation of
section 8(f) of the National Labor Relations Act despite the Supreme Court’s affirmance of the
Board’s previous interpretation in NLRB v. Iron Workers, 434 U.S. 35 (1978)).

41 FMSHRC Page 548

regulations, discussed further below in Section III.C, the citation largely rests on § 75.334(b)(1)
to revoke the ventilation plan.36 This regulation states that
During pillar recovery a bleeder system shall be used to control the
air passing through the area and to continuously dilute and move
methane-air mixtures and other gases, dusts, and fumes from the
worked-out area away from active workings and into a return air
course or to the surface of the mine.
30 C.F.R. § 75.334(b)(1). This regulation has two requirements: 1) that the bleeder system
“control the air passing through the area”; and 2) that the bleeder system “continuously dilute
and move methane-air mixtures and other gases, dusts, and fumes from the worked-out area.”
There is no question that the mine has low levels of methane and adequate levels of oxygen.
G. Ex. 1 at 1-2; Tr. 25, 70, 141-42, 296, 421, 485-86. However, MSHA alleges that the bleeder
system fails to control the air passing through the mine. See, e.g., G. Ex. 9 at 1. To support this
allegation, MSHA relies on the ventilation survey. G. Ex. 3 at 1. This included the use of
chemical smoke tests inside the extended-depth perimeter cuts. Tr. 120-21.
As noted above, an agency action is arbitrary and capricious if it relies on factors that
were not intended to be relied upon. Motor Vehicle Mfrs., 462 U.S. at 43. Here, MSHA
improperly relied on two factors: unreliable smoke tests conducted inside the perimeter cuts, and
a bias against perimeter mining that is supported by substantial record evidence.
In using the smoke tests inside the perimeter cuts, MSHA gathered data that would not
have been considered in other forms of second mining or in the consideration of a bleeder system
under § 75.334(b)(1). Tr. 559-60, 573. As Respondent’s expert Beiter repeatedly testified, the
ability to go into a perimeter cut presented a “unique opportunity” because a survey team would
not be able to access a mined-out area in second mining. Tr. 563; see also Tr. 50, 117, 559, 571.
As Beiter further testified, because a survey team could not access a mined-out area in longwall
or full pillar recovery mining, a ventilation survey would only include taking measurements from
the crosscut leading up to and coming out of the mined-out area. Tr. 116. Beiter agreed that he
had “never done a ventilation survey actually in a pillared area, either full extraction, partial
extraction, or longwall.” Tr. 116-17. Burns echoed this sentiment and testified that, “as a general
rule,” one does not go into or analyze the ventilation in pillared areas. Tr. 222.
In revoking the mine’s ventilation plan, MSHA improperly relied on a “unique”
opportunity to apply a different standard—requiring perimeter mining to pass a test not required
of any other form of second mining—without explanation; “where an agency applies different
standards to similarly situated entities and fails to support this disparate treatment with a
reasoned explanation and substantial evidence in the record, its action is arbitrary and capricious
and cannot be upheld.” Burlington Northern & Santa Fe R. Co. v. Surface Transp. Bd., 403 F.3d
36

While § 75.334(b)(1) applies “[d]uring pillar recovery,” § 75.334(b)(2) applies “[a]fter
pillar recovery.” Although both arguably apply to the mine, the Citation and the Secretary’s
theory of the case—as supported by testimony (Tr. 190, 194) and the Secretary’s briefs—rely
exclusively on § 75.334(b)(1). See G. Ex. 11. Therefore, this Decision will only consider the
alleged violation of § 75.334(b)(1) and not § 75.334(a)(1) or (b)(2).

41 FMSHRC Page 549

771, 777 (D.C. Cir. 2005). Accordingly, MSHA’s revocation of the mine’s ventilation plan was
arbitrary and capricious.37
Despite the inability to obtain comparable measurements from inside a pillared area in
other forms of second mining, MSHA relied heavily on the measurements taken from inside the
perimeter cuts at the mine. In doing so, MSHA applied a different test to perimeter mining than it
applied to any other types of second mining under § 75.334(b)(1). Other than describing the
situation as “unique,” there was no explanation given as to why perimeter mining was subject to
requirements that were not applied to any other type of second mining.
In addition, MSHA exhibited a bias against perimeter mining, and there is substantial
evidence in the record to warrant the inference that MSHA was engaging, by incremental steps,
in an attempt to eradicate perimeter mining. This bias led MSHA to conduct the ventilation
survey seeking a predetermined result. Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d
692, 711 (10th Cir. 2010) (using arbitrary and capricious standard in reviewing predetermination
claim). The most probative evidence and credible testimony demonstrate that District 8’s true
aim was to “get rid” of perimeter mining and declare it “illegal.” Tr. 417. Former MSHA District
8 supervising engineer, Mark Eslinger, credibly testified that he served a 90-day detail in 2001 in
Arlington, Virginia, where he had discussions that led him to believe “that people in MSHA
headquarters want to get rid of perimeter mining.” Tr. 444. When pressed for names on further
cross-examination by the Secretary, Eslinger credibly testified that he “had discussions with
Kevin Stricklin and he did not seem to be in favor of perimeter mining.” Tr. 445. Stricklin
executed PPL P13-V-12, without notice-and-comment rulemaking. Eslinger also testified that
Reider, an engineer in District 8, warned that District 8 was trying to “get rid” of perimeter
mining. Tr. 417. Furthermore, MSHA roof control supervisor, Doug Herndon, told Eslinger
during a December 2018 meeting presented by Tech Support that MSHA was going to declare
perimeter mining was “an illegal system of mining. That’s how they are going to get rid of it.”
Tr. 441-42.
This bias was evidenced not only from testimony, but also from the June 7, 2018 letter
where MSHA specifically emphasized that the ventilation plan was inappropriate because “[t]he
worked-out area is not ventilated throughout the entire pillared area.” G. Ex. 7 at 2. As noted
above, the undersigned discredits Burn’s post hoc rationalization for the emphasis of a word that
does not appear in § 75.334(b)(1). Far from simply being Burns’ “term to make sure they
understand that I’m not just talking about the mouth” of the panel, the term implies a standard
not found in the cited regulation, but the standard found in § 75.334(a)(1). Tr. 205. The use and
emphasis of the word “throughout,” which does not appear in the cited regulation, demonstrates
an application of that regulation outside normal bounds and suggests some motive other than an
unbiased application of the proper regulation.
The application of the smoke tests also indicates MSHA’s bias and result-driven
conclusions. As found above, Hartsog persuasively testified that the chemical smoke tests were
not valid tests, but “an attempt by District 8 to get rid of perimeter mining.” Tr. 415. MSHA’s
bias was also evident from Beiter’s actions, discussed below, overruling Doyle-Coombs when
37

MSHA’s heavy reliance on the smoke tests in the perimeter cuts alone is sufficient to
find that the revocation of the ventilation plan was arbitrary and capricious.

41 FMSHRC Page 550

she made notations documenting perceptible movement. Rather than consider the observations of
a member of the survey team or even those from the operator’s representatives, Beiter intervened
and directed changes to those recorded observations that reflected less favorably on the
previously approved ventilation plan.
The record establishes that MSHA also failed to consider the experiential opinions and
expertise from District 8’s own ventilation specialists and inspectors, who are intimately familiar
with the mine, during the plan revocation process. Although Burns was generally unfamiliar with
and had limited experience with perimeter mining (Tr. 240-41), he did not talk to or seek input
from his own inspectors during the plan revocation process, despite the fact that his ventilation
specialists would regularly perform six-month plan reviews on site and review mine maps to
identify problems and ensure that the plan was still “adequate.” Tr. 155-58, 233-34. These
inspectors included Mike Pritchard, who told safety director Jankousky that he did not see
anything wrong with the revoked system of ventilation for perimeter mining at PEUG. Tr. 381,
383, 385-86.
MSHA’s unexplained failure to consider the expertise found in its own agency
demonstrates that MSHA failed to consider an important aspect of the problem and supports the
inference that MSHA was motivated by a desire to chip away at and to ultimately eradicate
perimeter mining.
Although Hasenstab testified that he did not believe that Burns was trying to get rid of
perimeter mining, the testimony and the actions of MSHA when confronted with requests for
approval of ventilation plans that included perimeter mining demonstrate that District 8 was
attempting to get rid of perimeter mining. Tr. 354. As noted above, the undersigned discounts
Hasenstab’s testimony on this point because he would not want to generate ill will with District
8, complicating a key relationship in operating a mine in that district. Other testimony from
disinterested witnesses and the actions of MSHA establish that there was an active effort by
District 8 against perimeter mining. While none of this evidence alone indicates a bias, taken
together, the evidence—including the credited testimony, the use of inapplicable language, the
use of the unreliable smoke tests, and the failure to consider the opinions of District 8’s
ventilation specialists intimately familiar with the ventilation plan at the mine—demonstrates a
pattern of bias against perimeter mining that infected the decision-making process, leading to a
predetermined, and thus arbitrary and capricious, decision. Forest Guardians, 611 F.3d at 711.
Either of these, the use of the unreliable smoke tests and the demonstrated bias against
perimeter mining, would alone render MSHA’s decision arbitrary and capricious. Motor Vehicle
Mfrs., 462 U.S. at 42 (An agency acts arbitrarily and capriciously when it relies on improper
factors when making its decision.).
B.

MSHA failed to consider important factors.

An agency action is arbitrary and capricious if the agency failed to consider an aspect of
the problem. Motor Vehicle Mfrs., 462 U.S. at 42. In revoking the mine’s ventilation plan,
MSHA failed to consider several important factors including the no-less-protection standard;

41 FMSHRC Page 551

using tracer gas; and the disagreements within the survey team and from Knight Hawk’s
representatives concerning the varied and inconsistent results of the smoke tests.
At the outset, MSHA overlooked and failed to consider that its regulatory authority to
revoke the previously approved ventilation plan is subject to a unique statutory limitation: “[n]o
mandatory health or safety standard . . . shall reduce the protection afforded miners by an
existing mandatory health or safety standard.” 30 U.S.C. § 811(a)(9); see United Steel v. Mine
Safety & Health Administration, 925 F.3d 1279, 1288 (D.C. Cir. 2019). “This unusual limitation
‘expressly mandates that no reductions in the level of safety below existing levels be permitted,
regardless of the benefits accruing from improved efficiency.’” Id. at 1282 (quoting United Mine
Workers of Am., Int’l Union v. Dole, 870 F.2d 662, 666 (D.C. Cir. 1989)). This is the
no-less-protection standard. The Mine Act requires that MSHA “state the basis for its
conclusion” that a new health or safety standard satisfies the no-less-protection standard. Id. at
1282-83. Ventilation plans are the equivalent of safety and health regulations promulgated
through notice-and-comment rulemaking. Prairie State Generating Co. LLC v. Sec’y of Labor,
792 F.3d 82, 86 (D.C. Cir. 2015). Accordingly, when revoking the previously existing plan that
provided for perimeter mining, MSHA could not approve an interim plan without perimeter
mining that provided less protection, and MSHA needed to state the basis for its conclusion that
revocation of the status quo would not result in less protection for miners under the interim plan.
Knight Hawk presented substantial evidence to MSHA establishing that perimeter mining
was a safe and effective method of mining at the mine that resulted in lower exposure to
respirable dust, noise, and red or danger zones; a lower citation and injury rate; elimination of all
hazards associated with roof bolting; superior overall ventilation of the entire perimeter panel, as
compared to longwall gob and pillared areas; and adequate ventilation to ensure that methane-air
mixtures and other gases, dusts, and fumes from worked-out areas are continuously diluted and
routed away from active workings into a return air course or to the surface. G. Ex. 2 at 3-7;
Tr. 301. Burns conceded that perimeter mining “is a safe form of mining” and provides less
exposure to certain hazards released into the air than other forms of mining. Tr. 173. Additional
testimony bolstered the fact that perimeter mining is a safe form of mining. Tr. 337 (Hasenstab)
(agreeing that the previously-approved ventilation plan has “significant” safety benefits);
Tr. 370-71 (Jankousky). Hartsog went further and stated that not only was perimeter mining a
safe form of mining, but it was safer than continuous mining. P. Ex. 37 at 2. Jankousky agreed.
Tr. 371 (“Definitely perimeter mining is safer.”). Even Burns conceded that perimeter mining
was a safer form of second mining. Tr. 224.
Despite substantial evidence that perimeter mining is a safe and likely safer form of
mining with regard to recurring hazards, the credited, probative evidence in the record
establishes that MSHA failed to even consider, much less address, the comparative safety
advantages of perimeter mining under the previously approved ventilation plan. As noted above,
the undersigned has discredited Burns’ testimony at trial that he actually considered the safety
and health benefits of perimeter mining first raised by Knight Hawk in its March 13 letter.
More importantly, the Mine Act requires that MSHA “state the basis for its conclusion”
that safety and health standards prevailing under the interim plan satisfies the no-less-protection
standard. United Steel, 925 F.3d at 1282 (quoting Nat’l Min. Ass’n v. MSHA, 116 F.3d 520, 536

41 FMSHRC Page 552

(D.C. Cir. 1997)). Any such statement by MSHA “is subject to review under the Administrative
Procedure Act and must manifest that MSHA engaged in reasoned decisionmaking.” Id. (citing
Nat’l Min. Ass’n v. MSHA, 116 F. 3d at 536).
Here, MSHA made no statement or analysis that the significant and uncontroverted safety
and health protections afforded by perimeter mining under the revoked ventilation plan were
actually considered or outweighed by safety and health standards that gave no less protection
against respirable dust, noise, red zone, and roof bolting under the interim ventilation plan.
MSHA failed to consider whether revoking the ventilation plan would result in Knight Hawk’s
performance of more advance continuous mining than it would have performed if the ventilation
plan remained in place. Because there is substantial evidence in the record demonstrating that
advance continuous mining is less safe than perimeter mining, MSHA failed to consider an
important factor in making its decision. Specifically, MSHA failed to consider the unique
statutory limitation, which cabined its revocation discretion.
Such unexplained agency action in excess of statutory limitations found in 30 U.S.C.
§ 811(a)(9) is arbitrary and capricious decision making. Motor Vehicle Mfrs., 463 U.S. at 43
(finding that an agency action is arbitrary and capricious “if the agency has . . . entirely failed to
consider an important aspect of the problem”); see also International Union, United Mine
Workers of America v. U.S. Department of Labor, 358 F.3d 40, 44-45 (D.C. Cir. 2004) (finding
that MSHA’s failure to provide an adequate explanation for its decision to withdraw an air
quality proposal was arbitrary and capricious action). Here, MSHA failed to offer any
explanation, let alone an adequate one, as to why the revocation of the previously approved
ventilation plan satisfied the limitations of the statutory no-less-protection standard. United Steel,
925 F.3d at 1282-83. This is a sufficient basis, standing alone, to vacate MSHA’s revocation
action and reinstate the previously approved ventilation plan.
In addition to failing to consider the no-less-protection standard, MSHA acted in an
arbitrary and capricious manner when it failed to consider a tracer gas test, which is usually
employed to confirm airflow. In fact, MSHA failed to even consider the use of tracer gas to
confirm its unreliable smoke tests. As noted above, tracer gas is a method of determining air
movement by releasing a certain gas in one area and them sampling for that gas in another area.
Beiter acknowledged that “[u]sually you would use tracer gas when we can’t confirm that there
is airflow.” Tr. 573. Hartsog confirmed that tracer gas would be the “proper tool for the task” of
determining the effectiveness of a bleeder system. Tr. 532-33.
However, in deviation from acknowledged usual practice, MSHA’s survey team did not
use tracer gas, despite being unable to confirm airflow in the perimeter cuts. MSHA did not
provide any reasoned explanation as to why it did not use tracer gas. Such an explanation is
necessary, especially where testimony establishes that it was MSHA’s usual practice to use tracer
gas where airflow could not be confirmed. At the very least, MSHA should have used this
acknowledged usual practice to back up or confirm the findings of the smoke tests. This
deviation meant that MSHA did not consider an important factor, the use of tracer gas, when
revoking the mine’s ventilation plan. When such an aberration from usual practice in agency
action goes unexplained, it is arbitrary and capricious. Encino Motors, LLC v. Navarro, 136 S.Ct.

41 FMSHRC Page 553

2117, 2120 (2016) (citing FCC, 556 U.S. at 515). Consequently, MSHA’s unexplained departure
from a usual practice was arbitrary and capricious.38
Finally, as noted above in Section III.A, MSHA did not properly consider differences in
the opinions and observations from the survey team and the contrary opinions and observations
from Knight Hawk’s representatives concerning the varied and inconsistent results of the smoke
tests. The survey team made observations of smoke rising approximately 44-feet away in dimly
lit perimeter cuts from areas that miners do not normally work or travel. Tr. 52-54. This unique
and questionable practice resulted in disagreements among the survey team and from Knight
Hawk’s representatives, which Beiter actively suppressed, directing some notes to be rewritten.
Tr. 104, 299, 349-350.
Additionally, MSHA failed to consider that the smoke tests provided varied and
inconsistent results regarding the direction and movement of airflow. As noted, Hasenstab
credibly testified that there was “[g]eneral uncertainty in regards to movement or no movement.”
Tr. 299-300. At times, the tests were not even capable of being repeated. Tr. 561-62.
Even if the undersigned were to overlook the aberrant use of unreliable smoke tests inside
the perimeter cuts, MSHA failed to consider the limitations placed on the survey team in
conducting the smoke tests, disagreements among the survey team and Knight Hawk
representatives concerning perceptible air movement in such cuts, and the varied and
inconsistent results of the survey. By not considering these important factors, MSHA acted in an
arbitrary and capricious manner. Motor Vehicle Mfrs., 463 U.S. at 43 (An agency action is
arbitrary and capricious where the agency “entirely failed to consider an important aspect of the
problem.”).
In short, MSHA revoked a previously approved ventilation plan through results-oriented,
unreliable, and suspect investigation techniques that failed to consider several important aspects
of the problem to ensure the reliability of data and observations relied upon and to ensure
compliance with an important statutory limitation. MSHA failed to consider the no-lessprotection standard; the simple use of tracer gas to validate or confirm the smoke tests; and the
disagreements within the survey team and from Knight Hawk’s representatives concerning the
varied and inconsistent results of the smoke tests. These failures demonstrate that MSHA acted
in an arbitrary and capricious manner in a unique and unprecedented scenario to revoke a
previously approved plan found suitable by four District 8 managers or acting district managers
and by District 8 ventilation specialist Pritchard, who inexplicably was never consulted about the
revocation decision or called as a rebuttal witness. Any one of these three failures is sufficient to
find the revocation of the ventilation plan arbitrary and capricious.

38

Due to MSHA’s heavy reliance on a ventilation survey that did not use tracer gas, this
deviation from an acknowledged usual practice alone is sufficient to find that the revocation of
the ventilation plan was arbitrary and capricious.

41 FMSHRC Page 554

C.

MSHA offered explanations counter to the evidence before it.

MSHA cited regulations that had no support in the record to justify its revocation of the
mine’s ventilation plan. MSHA revoked the previously approved plan by technical citation citing
five major deficiencies that Knight Hawk allegedly failed to address or include in a modified or
revised plan submission. The Secretary grounded the alleged deficiencies in mandatory standards
set forth in 30 C.F.R. §§ 75.334(b)(1); 75.334(c)(4); 75.364(a)(2)(iii) and (iv); 75.371(y), (z),
and (bb); and 75.372(b)(9). Of these regulations, only § 75.334(b)(1), discussed above, deals
with whether a ventilation plan is effective. The remainder of the regulations pertains to the
technical requirements of what must be in a written ventilation plan and map prior to submission
to MSHA for its consideration. Specifically, five of the remaining seven regulations—
§§ 75.334(c)(4); 75.371(y), (z), and (bb); and 75.372(b)(9)—pertain to what the ventilation plan
and map must “specify” and what “information” the ventilation plan and map must contain prior
to submission for approval. It should be emphasized that these regulations only pertain to what
technical details must be included in a submitted plan and map and not whether the submitted
plan and map constitute a suitable ventilation plan. In other words, these regulations prescribe
what information an operator must include in a ventilation plan and map when submitting them
for MSHA’s initial consideration, but they do not speak to whether it is a suitable ventilation
plan.
When MSHA approved the ventilation plan in 2010, MSHA found that the plan and map
were in compliance with 30 C.F.R. § 75.370. G. Ex. 12 at 1. Under § 75.370, a “ventilation plan
shall consist of two parts[:] the plan content as prescribed in § 75.371[,] and the ventilation map
with information as prescribed in § 75.372.” As such, when a plan and map are found in
compliance with § 75.370, they are likewise found in compliance with § 75.371 and § 75.372.
Five of the cited regulations that MSHA alleged that Knight Hawk had violated—
§§ 75.334(c)(4); 75.371(y), (z), and (bb); and 75.372(b)(9)—are components of § 75.371 and
§ 75.372. In 2010, MSHA found that the ventilation plan and map were in compliance with these
five regulations concerning the required technical details.39
When MSHA revoked the ventilation plan, nothing had changed in the written ventilation
plan or map from the 2010-approved version. Tr. 240-41. Other than the PEUG ventilation
survey, the Secretary offers no explanation as to why a plan found to include the necessary
information in 2010 was suddenly lacking in 2018.40 Furthermore, the Secretary offers no
explanation why, even if the 2018 PEUG ventilation survey were accepted at face value, it
rendered the technical details in the 2010 plan and maps improper for submission to MSHA for
consideration. In essence, MSHA has declared, without explanation, that the previously
39

Although 30 C.F.R. §75.370 does not explicitly reference 30 C.F.R. § 334(c)(4), the
requirements of § 334(c)(4)—that a ventilation plan specify “[t]he location of ventilating
devices”—are the same as those in 30 C.F.R. § 75.371(bb), which does incorporate § 334(c)(4)
by reference.
40

It should be noted that MSHA cited Knight Hawk for operating without an approved
ventilation plan, not for failing to follow an approved ventilation plan. As such, the findings of
the ventilation survey should have no effect on whether the ventilation plan or map complied
with § 75.371 or § 75.372.

41 FMSHRC Page 555

approved ventilation plan and map are suddenly unacceptable even for an initial submission for
consideration by MSHA.
As noted above, an agency must “examine the relevant data and articulate a satisfactory
explanation for its action.” FCC, 556 U.S. at 513 (quoting Motor Vehicle Mfrs., 463 U.S. at 43).
Here, the Secretary offers no explanation, satisfactory or otherwise, why the technical details of
the 2010 written ventilation plan did not satisfy the requirements of §§ 75.371 and 75.372 in
2018 when the same technical details did so in 2010. Consequently, MSHA acted arbitrarily and
capriciously and contrary to law when it determined that Knight Hawk had violated these
regulations.
The remaining two regulations—§§ 75.364(a)(2)(iii) and 75.364(a)(2)(iv)—require that
the operator conduct weekly examinations of the ventilation system. Specifically,
§ 75.364(a)(2)(iii) requires that, at least every seven days, “[a]t least one entry of each set of
bleeder entries used as part of the bleeder system . . . shall be traveled in its entirety.”
Additionally, measurements shall be performed during the weekly examination to determine
methane and oxygen levels as well as whether air is moving in the proper direction at EPs as
prescribed in the ventilation plan.41 Section 75.364(a)(2)(iv) provides that an operator may offer,
“in lieu of the requirements of [(a)(2)(iii)], an alternative method of evaluation” in a submitted
ventilation plan.
MSHA’s determination that Knight Hawk violated § 75.364(a)(2)(iii) runs counter to the
evidence. As noted above, this regulation requires weekly examinations where an examiner
travels at least one bleeder entry of each set of entries, and for evaluations of air quality and
movement at EPs as identified in the ventilation plan. Hasenstab identified the weekly route
followed by an examiner to determine the effectiveness of the bleeder system at the EPs. P. Ex.
30 at 9; Tr. 320-22; see also Tr. 504 (Hartsog). Knight Hawk’s expert, Hartsog, credibly testified
that “it would be an effective way of evaluating the system. It meets the requirements in that it
goes to the extremities of the system. And it travels the entire perimeter of the bleeder area, of
the bleeder system, bleeder entries.” Tr. 505.
The undersigned is persuaded by Hasenstab’s description of the weekly examinations. Tr.
320-22.42 Hasenstab testified that the weekly examination involved traveling along the bleeder
entries from EP to EP and checking air quality and direction at each EP. Tr. 320-21; G. Ex. 13 at
9. Beiter’s report to Burns confirmed that “[t]he required examination of the bleeder system
included travel of bleeder entries to evaluate its effectiveness” and that “[b]leeder entries were
routinely traveled in each block in which an [EP] was located and across the front of the
completed blocks.” G. Ex. 1 at 7. Consequently, the evidence clearly demonstrates that the
weekly examinations occurred and included travel of “[a]t least one entry of each set of bleeder
entries” to conduct the tests, meeting the requirements of § 75.362(a)(2)(iii). MSHA again
offered no explanation as to why the weekly examinations themselves were inadequate under
41

Section 75.362(a)(2)(iii) uses the term “measurement point locations” rather than
“evaluation points.”
42

The Secretary offered no evidence contrary to Hasenstab’s description.

41 FMSHRC Page 556

this regulation. As such, MSHA acted in an arbitrary and capricious manner when finding that
Knight Hawk violated § 75.362(a)(2)(iii). Motor Vehicle Mfrs., 463 U.S. at 43.
Additionally, although MSHA identified alleged deficiencies with the weekly
examinations, none of these alleged deficiencies are grounded in the regulations. First, Burns,
both in testimony and in his June 7 letter, identified the weekly examinations as deficient
because the plan did not
define[] the proper air direction through individual “blocks” . . . .
Definition of the proper direction of airflow through bleeder
entries and pillared areas, as well as the EP locations, also is
necessary for the mine examiner to determine if air is moving in
the proper direction when conducting tests during the weekly
examination.
G. Ex. 9 at 2. Setting aside for the moment that MSHA, again without explanation, found fault
with the written ventilation plan deemed acceptable in 2010, MSHA rejected Knight Hawk’s
offer to cure the alleged deficiency with written statements. Id. The only explanation for this
rejection was that displaying the airflow with arrows on the map itself was required by the plain
language of the regulation. Tr. 204. Because the Secretary relies on the plain language of the
regulation, the Secretary’s interpretation of the regulation does not get deference. Kisor v. Wilkie,
139 S.Ct. 2400, 2415 (2019) (“[A] court should not afford Auer deference unless the regulation
is genuinely ambiguous. If uncertainty does not exist, there is no plausible reason for deference.”
(citations omitted)); see also Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 216667 (2012) (holding that “[d]eference is . . . unwarranted when there is reason to suspect that the
agency’s interpretation ‘does not reflect the agency’s fair and considered judgement on the
matter in question.’”). Looking to the plain language of § 75.372, there is no requirement as to
how, or in what format, the information must be provided on the ventilation map. Consequently,
the Secretary does not provide any basis for this requirement, and this is yet another example of
MSHA acting in an arbitrary and capricious manner to achieve the desired result. Motor Vehicle
Mfrs., 463 U.S. at 43.
Second, MSHA also alleged that the weekly examinations were deficient because
[t]he specified means of evaluation of the worked-out area does not
provide sufficient information to determine the effectiveness of the
bleeder system including (a) whether air was moving in the proper
direction through all “blocks,” including the bleeder entries and
pillared areas in each “block”; (b) the means to reasonably assure
ventilation of the extended-depth portions of the pillared areas; or
(c) the effectiveness of ventilation through the worked-out area.
G. Ex. 11 at 3. None of these requirements can be found in the cited regulation. The only
requirement in § 75.364(a)(2)(iii) is that “[a]t least one entry of each set of bleeder entries used
as part of the bleeder system . . . shall be traveled in its entirety” and that the weekly examination
will include tests for air quality and movement. There is no requirement in § 75.364(a)(2)(iii) for

41 FMSHRC Page 557

additional tests outside of the EPs or the addition of more EPs than are required in the approved
ventilation plan. Based on the language from the citation, MSHA created additional requirements
that have no basis in the regulation. Again, it should be emphasized that this regulation pertains
to whether Knight Hawk is conducting weekly examinations as prescribed by the ventilation plan
and maps in the first instance, not whether those examinations revealed shortcomings in the
ventilation plan.43
On this point, Beiter testified that the evaluation was insufficient because “there were
places in the bleeder system in which airflow was not being controlled in a manner that would
allow that evaluation to take place.” Tr. 112-13. Even assuming that Beiter were completely
correct that there were portions of the mine that did not have controlled airflow, this testimony
goes to the results of the weekly examinations, not to whether Knight Hawk was conducting the
weekly examinations in compliance with § 75.364(a)(2)(iii) in the first instance. Even
uncontrolled airflow, except in extreme cases, would not prevent Knight Hawk from conducting
adequate weekly examinations. To put it another way, where § 75.364(a)(2)(iii) asks whether
Knight Hawk conducted weekly exams adequate to evaluate the bleeder system, Beiter faults
Knight Hawk for the expected results of that test. This is akin to faulting Knight Hawk for not
taking a test because, in MSHA’s view, Knight Hawk should fail that test. As this regulation
goes to whether Knight Hawk is conducting the proper examinations—not what the result of that
test may be—MSHA does not support this alleged violation.44 In short, it is a non sequitur to
allege that Knight Hawk failed to conduct weekly examinations because “there were places in
the bleeder system in which airflow was not being controlled.” Tr. 112-13.
As noted above, the law requires MSHA to offer a reasoned explanation when departing
from its standard course; “an agency changing its course must supply a reasoned analysis.”
Motor Vehicle Mfrs., 463 U.S. at 57 (quoting Greater Boston Television Corp. v. FCC, 444 F.2d
841, 852 (D.C. Cir. 1970). Here, the Secretary offers no reasoned explanation why the additional

43

Although the Secretary never presents this argument, the best argument in support of
the Secretary’s position is that, if Knight Hawk had been conducting proper weekly
examinations, those examinations should have demonstrated that the ventilation plan was not
suitable based on the results of the ventilation survey. Therefore, this argument continues, since
the weekly examinations did not reveal the plan’s unsuitability, Knight Hawk must not have
been performing proper weekly examinations. Even beyond the reasons stated above, this
argument fails because the improperly conducted ventilation survey lies at the heart of this
argument. Its reasoning fails once the keystone of the ventilation survey is found flawed.
44

Burns testified that “[w]e did not feel the bleeder system was being ventilated. We did
not feel it was being adequately examined.” Tr. 171. He did not, however, provide any concrete
support as to why the weekly examinations themselves were inadequate, nor did the Secretary
proffer any citations to support such conclusion. Rather, the Secretary only proffers results from
an unreliable and suspect ventilation survey in areas where examiners would not travel.

41 FMSHRC Page 558

deficiencies that it grafted onto regulatory language are necessary under § 75.364(a)(2)(iii), or
how Knight Hawk’s execution of the weekly examinations runs afoul of that regulation.45
Turning to § 75.364(a)(2)(iv), this regulation, by its plain language, only applies where
an operator submits an alternative weekly examination plan “in lieu of the requirements of”
§ 75.364(a)(2)(iii) in a ventilation plan. The evidence is clear that Knight Hawk did not submit
an alternative weekly examination plan in its ventilation plan. G. Ex. 12 at 9. Consequently,
MSHA’s reliance on this regulation runs counter to the evidence. Motor Vehicle Mfrs., 463 U.S.
at 43.
As a final matter, insofar as the Secretary relies on PPL P13-V-12 as the impetus that
changed the substantive requirements for the submitted ventilation plan and maps, such reliance
is improper as PPL P13-V-12 did not go through proper notice-and-comment rulemaking. As
noted in the Findings of Fact, on December 30, 2013, after the approval of the mine’s ventilation
plan, MSHA, through Administrator Kevin Stricklin, issued the policy “to clarify and improve
the examination and evaluation of bleeder systems by mine operators.” R. Ex. 13 at 1. PPL P13V-12 states that “[i]t is anticipated that District Managers would not suggest changes to the
relevant portions of existing approved ventilation plans absent conditions affecting the safety or
health of miners that arise following the issuance and effective date of” the policy. Id. PPL P13V-12 defines a bleeder system to “include[] the area from which pillars are wholly or partially
recovered, bleeder entries, bleeder connectors, and all associated ventilation control devices that
control the air movement through the area.” Id. at 2.
Hartsog credibly testified that PPL P13-V-12 changed the definition of a bleeder system.
Specifically, Hartsog testified that the policy includes as part of the newly defined bleeder
system “any pillar that’s left untouched . . . . Commonly, we don’t refer to certain pillars next to
the gob or around the gob as being part of the bleeder system. It’s part of the gob.” Tr. 513.
Hartsog stated that perimeter cuts “are in the abandoned area. Once those are mined, I would not
expect them to be re-examined once left.” Tr. 480. Hartsog also credibly testified that the policy
redefined what constituted a bleeder entry. He stated that the policy “defines bleeder entries as
being any entries that . . . are between or around blocks that have not been second mined. Before
this [policy] document came out, that was not the case.” Tr. 523.
PPL P13-V-12 made substantive and definitional changes to § 75.300 dealing with
bleeder systems that lack the force of law purportedly used to justify the revocation of Knight
Hawk’s ventilation plan. It is the Secretary’s burden to appropriately promulgate new proposed
changes in substantive legal requirements through proper notice-and-comment procedure.
30 U.S.C. § 811; see Alaska Professional Hunters v. FAA, 177 F.3d 1030, 1034 (D.C. Cir. 1999)
(“When an agency has given its regulation a definitive interpretation, and later significantly
revises that interpretation, the agency has in effect amended its rule, something it may not
accomplish without notice and comment.”); Drummond Company, Inc., 14 FMSHRC 695 (1992)
(affirming the judge’s holding that the Secretary was required to promulgate a policy program
letter through notice-and-comment rulemaking and concluding that the policy, as an invalidly
45

Like the unreliable smoke tests, this appears to be yet another example where MSHA
created additional requirements for extended-cut perimeter mining that were not required for
other forms of second mining.

41 FMSHRC Page 559

issued substantive rule, can be accorded no legal weight or effect). Further, the Secretary failed
to set forth any convincing reasons upon which policy changes may be exempt from notice-andcomment due to good cause. 5 U.S.C. § 553(b)(3)(B). Therefore, PPL P13-V-12 cannot justify
changing the requirements of the submitted ventilation plan and maps.
The undersigned finds unpersuasive the Secretary’s argument that, even apart from the
measurements taken within the perimeter cuts, the ventilation survey indicated that Knight Hawk
had to revise its ventilation plan. Specifically, the Secretary contends that “[t]he direction of air
movement in adjacent bleeder entries was not always consistent within a block[;] at several
locations air moved in opposing directions across an individual bleeder entry, and in portions
o[f] other bleeder entries there was no perceptible air movement at all.” Sec’y Post-Hearing Br.
at 48-49. This argument relies on the definition of “bleeder entry” from PPL P13-V-12. When
applying the pre-PPL P13-V-12 definition, the pillars that have not been second mined and are
not adjacent to the perimeter cuts are not part of the bleeder system. Tr. 513. Consequently,
applying the pre-PPL P13-V-12 definitions, there is a single bleeder entry and the ventilation
survey found consistent air movement through the bleeder entry and through the area adjacent to
the perimeter cuts. G. Ex. 18-1. The Secretary’s unpersuasive argument demonstrates exactly
how PPL P13-V-12 changed the definition of a bleeder entry and the substantive consequences
of that change.
In summary, MSHA acted in an arbitrary and capricious manner under Motor Vehicles
Mfrs., 463 U.S. at 43. First, MSHA relied on factors—the unreliable smoke tests within the
perimeter cuts and a bias against perimeter mining—that were not intended to be considered.
Second, MSHA entirely failed to consider important aspects of the revocation issue—the noless-protection standard; using tracer gas; and the disagreements within the survey team and
from Knight Hawk representatives concerning the varied and inconsistent results of the smoke
tests. Finally MSHA either offered an explanation that ran counter to the evidence before it or
failed to offer any explanation to support its decision that the previously approved plan no longer
satisfies §§ 75.370, 75.371, and 75.372.
IV. CONCLUSION
For the foregoing reasons, the technical citation is vacated, and the previously approved
ventilation plan is reinstated.

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

41 FMSHRC Page 560

Distribution:
Travis Gosselin
Office of the Solicitor
U.S. Department of Labor
230 S. Dearborn Street
Room 844
Chicago, IL 60604
R. Henry Moore
Fisher & Philips, LLP
301 Grant Street
Suite 4300
One Oxford Centre
Pittsburgh, PA 15219
/ztb

41 FMSHRC Page 561

ADMINISTRATIVE LAW JUDGE ORDERS

41 FMSHRC Page 562

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

July 23, 2019
CIVIL PENALTY PROCEEDINGS

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

Docket No. VA 2018-0103
A.C. No. 44-07087-462566 A

v.
JAMES C. SCOTT, employed by
MILL BRANCH COAL CORP.,

Docket No. VA 2018-0104
A.C. No. 44-07087-462567 A

and
DONNIE B. THOMAS, employed by
MILL BRANCH COAL CORP.,
Respondents

Mine: D-6 North Fork

DISMISSAL ORDER
Before:

Judge Feldman

The captioned proceedings, brought by the Secretary pursuant to section 110(c) of the
Federal Mine Safety and Health Act of 1977 (the “Act” or “Mine Act”), 30 U.S.C. § 820(c),
concern whether James C. Scott and Donnie B. Thomas “knowingly” violated section 50.10(d)
of the Secretary’s regulations, cited in Order No. 8178613, issued to Mill Branch Coal
Corporation (“Mill Branch”). Section 50.10(d) requires an operator to contact the Mine Safety
and Health Administration (“MSHA”) within 15 minutes after a water inundation has occurred.1
30 C.F.R. § 50.10(d). On April 12, 2018, the Secretary issued notices of civil penalty to Scott

1

The provisions of section 50.10(d) require an operator to notify MSHA within
15 minutes of the occurrence of an accident. The definition of an “accident” in the Secretary’s
regulations includes “[a]n unplanned inundation of a mine by a liquid or gas.” 30 C.F.R.
§ 50.2(4).

41 FMSHRC Page 563

and Thomas for their alleged violations of section 50.10(d), 36 months after the April 8, 2015,
issuance of underlying Order No. 8178613 to Mill Branch. 2
The timeliness provisions of section 105(a) of the Act provide, in pertinent part:
If, after an inspection or investigation, the Secretary issues a
citation or order under section 104, he shall, within a reasonable
time after the termination of such inspection or investigation,
notify the operator by certified mail of the civil penalty proposed
to be assessed under section 110(a) for the violation . . . .
30 U.S.C. § 815(a). Although the above statutory provisions require timey notification to mine
operators of proposed civil penalties, the Secretary does not dispute that the timeliness provisions
of section 105(a) also apply to the issuance of proposed civil penalties in personal liability cases
brought pursuant to section 110(c) of the Act.
On March 27, 2019, the Secretary was ordered to show cause why the captioned 110(c)
proceedings should not be dismissed. Order to Show Cause, 41 FMSHRC ___, slip op. at 3-4.
Specifically, the Secretary was ordered to address whether the notices of personal liability for
civil penalties issued to Scott and Thomas, 36 months after the underlying violation of section
50.10(d) occurred, complied with the reasonable time provisions of section 105(a) of the Act.
The Order to Show Cause is incorporated by reference.
The Order to Show Cause, consistent with Commission case law and MSHA’s Program
Policy Manual (“PPM”) concerning 110(c) cases, noted that the issuance of underlying Order
No. 8178613 upon completion of the MSHA inspection on April 8, 2015, is the starting point for
determining whether the Secretary issued the subject notices of personal liability within a
reasonable time. See Sec’y of Labor v. Sedgman, 28 FMSHRC 322, 340 (June 2006)
(holding that, when a citation or order is issued at the conclusion of an MSHA inspection, the
starting point for assessing timeliness is the issuance of the citation or order); See also PPM, Vol.
I, at 42 (2012). In addressing timeliness issues, the Commission has opined that the Secretary is
not free to arbitrarily ignore reasonable time constraints as that would “deny fair play to
operators” by “exposing operators to stale claims.” Long Branch Energy v. Sec’y of Labor, 34
FMSHRC 1984, 1989 (Aug. 2012) (“Long Branch”) (citing Sec’y of Labor v. Salt Lake Road
Department, 3 FMSHRC 1713 (July 1981)). Consequently, the Secretary was ordered to

2

The Petition for Assessment of Civil Penalty with respect to Mill Branch’s liability for
Order No. 8178613 in Docket No. VA 2016-0106 was filed with the Commission on April 5,
2016. The degree of an operator’s negligence is a factor in determining the appropriate civil
penalty. 30 U.S.C. § 820(i). The negligence of Scott and Thomas, as corporate agents, is imputed
to Mill Branch. Sec’y of Labor v.Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb.
1991) (citation omitted). The proposed civil penalty apparently was based, in significant part, on
the alleged imputed negligence attributable to Scott and Thomas. 30 U.S.C.
§ 820(i). Order No. 8178613 was disposed of in an unpublished Decision Approving Settlement
issued on August 3, 2016.

41 FMSHRC Page 564

demonstrate adequate cause by providing a non-frivolous explanation for why the subject notices
of liability were issued 36 months after the issuance of Order No. 8178613.
In response to the Order to Show Cause, the Secretary relies on Supreme Court cases that
apply the general five year statute of limitations for initiating civil proceedings, contained in 28
U.S.C. § 2642, as the relevant period for applying timeliness provisions in statues other than the
Mine Act. Sec’y’s Resp. to the Order to Show Cause at 3-4. As the inundation occurred on April
7, 2015, the Secretary argues the timeliness provisions of section 105(a) have not been violated,
as the five year statute of limitation will not run until April 7, 2020. Id. However, the
Commission has rejected the Secretary’s reliance on Supreme Court case law as a basis for
abrogating the Secretary’s obligation to provide adequate cause in order to demonstrate that he
has acted in a timely manner. 3 See Long Branch, 34 FMSHRC at 1986-89.
Alternatively, the Secretary avers that the reasonableness of the length of MSHA
investigations is an enforcement prerogative that is not subject to Commission review. Sec’y’s
Resp. to the Order to Show Cause at 7-8. Thus, the Secretary contends that the period for
determining reasonableness is the eight-day period that transpired between the referral of the
investigation report to MSHA’s Office of Assessments and the issuance of the subject notices of
personal liability without regard to the 36-month investigation period that preceded it. Sec’y’s
Resp. to the Order to Show Cause at 4. The implications of this assertion, given the Secretary’s
disinclination to provide any explanation for the lengthy 36-month investigation, have been
addressed by Judge Zielinski:
[B]ecause there is a potential for substantial delay in the initiation
and conduct of section 110(c) investigations, granting the
Secretary carte blanch for that part of the process may well not
comport with considerations of fair play and due process for
individual respondents. One judge has noted that in cases against
individual respondents “concepts of fair play and due process must
be even more carefully protected.”
Sec’y of Labor v. Dyno Nobel East-Central Region, 35 FMSHRC 265, 267 n. 2 (Jan. 2013)
(ALJ) (quoting Curtis Crick, 15 FMSHRC 735, 737 (Apr. 1993) (ALJ)). Rather, the Commission
has stated that determining whether the timeliness provisions of section 105(a) are satisfied turns
on “whether the delay is reasonable under the circumstances of each case.” Sec’y of Labor. v.
Sedgman, 28 FMSHRC 322, 338 (June 2006).

3

The Commission’s Long Branch decision referred to section 105(a) as the “basic
framework” for requiring the Secretary to act in a timely manner. Long Branch, 34 FMSHRC at
1987. Long Branch concerned the Secretary’s failure to file a petition for assessment of civil
penalty within 45 days of receipt of a contest of a proposed civil penalty assessment as required
by Commission Rule 28(a). Id. Rule 28(a) interprets the statutory provisions of section 105(d)
that require the Secretary to “immediately advise the Commission” after a timely notice of a
contest is received. 29 C.F.R. § 2700.28(a); 30 U.S.C. § 815(d).

41 FMSHRC Page 565

The Secretary does not have the liberty to substitute his self-serving interpretation of the
timeliness provisions of section 105(a) by relying on a five-year statute of limitation, or, by
alternatively relying on a de minimis eight-day interim period in striking disregard of the
preceding lengthy 36-month investigation. It is well settled that the Commission, and not the
Secretary, has the delegated authority to “interpret the Mine Act and adopt a specific test or
standards for adjudicating [procedural and substantive] charges arising thereunder.” Sec’y of
Labor v. Berwind Natural Res. Corp., et al., 21 FMSHRC 1284, 1317 (Dec. 1999) (citations
omitted); see Long Branch 34 FMSHRC at 1988; see also n. 3, supra.
In the final analysis, in responding to the Order to Show Cause, the Secretary could have
availed himself of two options. Namely, responding to the Order to Show Cause by
demonstrating that there was a “non-frivolous explanation” for the 36-month delay. Long
Branch, 34 FMSHRC at 1991. Alternatively, the Secretary could have sought the Commission’s
interlocutory review, pursuant to Rule 76, with respect to the significance of the date of issuance
of a citation or order in determining the applicable interval for addressing timeliness under
section 105(a). 29 C.F.R § 2700.76.
The Secretary has chosen neither option. Consequently, the captioned 110(c) proceedings
must be dismissed as the Secretary has failed to provide any meaningful justification for the 36month delay in the issuance of the notices of personal liability that serve as the basis for the
captioned proceedings. As such, I need not address whether the Secretary’s delay has prejudiced
the Respondents as a consequence of the closure of the D-6 North Fork mine and the resultant
potential hardship with respect to obtaining mine records and locating relevant witnesses.
ORDER
In view of the above, IT IS ORDERED the captioned 110(c) proceedings ARE
DISMISSED with prejudice as the Secretary has failed to demonstrate that the subject notices of
personal liability were issued within a reasonable time as contemplated by section 105(a) of the
Act.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge

41 FMSHRC Page 566

Distribution (by certified mail):
Andrew R. Tardiff, Esq., U.S. Department of Labor, Office of the Solicitor, 201 12th Street
South, Suite 401, Arlington, VA 22209 tardiff.andrew.r@dol.gov
Eric T. Frye, Esq., 1051 Main Street, Milton, WV 25541 eric.frye@blackjewel.us
Donnie B. Thomas, P.O. Box 1, Lejunior, KY 40849
James C. Scott, 3706 Turkey Creek, Inez, KY 41224
/nm

41 FMSHRC Page 567

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9956 / FAX: 202-434-9949

August 19, 2019
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGs
Docket No. VA 2019-86
A.C. No. 44-03088-482802
Docket No. VA 2019-105
A.C. No. 44-03088-486702
Docket No. VA 2019-121
A.C. No. 44-03088-490733
Mine: P-7 Pigeon Creek
Docket No. VA 2019-87
A.C. No. 44-07052-482807
Docket No. VA 2019-88
A.C. No. 44-07052-482807

v.

Mine: D-10 Dorchester
Docket No. VA 2019-97
A.C. No. 44-07220-484725
Docket No. VA 2019-116
A.C. No. 44-07220-486712
Docket No. VA 2019-117
A.C. No. 44-07220-486712
Docket No. VA 2019-124
A.C. No. 44-07220-490741
Mine: D-17
Docket No. VA 2019-96
A.C. No. 44-07142-484723
Docket No. VA 2019-113 A.C. No. 4407142-486710

41 FMSHRC Page 568

Mine: P-12 Flat Rock
Docket No. KENT 2019-227
A.C. No. 15-18647-486602
Mine: D-30 Clover Fork

BLACKJEWEL LLC,
Respondent.
ORDER OF DEFAULT AND ORDER TO PAY
This case is before me upon a petition for assessment of civil penalties under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d).
These dockets involve 97 alleged violations and total proposed penalties of $125,543.00.
On July 29, 2019, these dockets were consolidated for a hearing that was to occur on August 2022, 2019. When each docket was assigned to me, I issued a prehearing order directing the parties
to submit prehearing reports no less than 20 days before the commencement of the hearing. The
parties were further advised that failure to comply with the terms of the order could result in
sanctions. The deadline for submitting a prehearing report for these dockets was July 31, 2019.
Respondent failed to submit a prehearing report.
On August 12, 2019, I issued an Amended Order to Show Cause directing Respondent to
explain why an order of default should not be issued against it given its failure to comply with
my prehearing order. I held a conference call with the parties on August 13, 2019 to discuss
Respondent’s proposed course of action regarding the Amended Order to Show Cause.
Respondent’s counsel relayed that in light of pending bankruptcy proceedings, no response to the
Amended Order to Show Cause would be forthcoming, unless he was directed to do so, and that
Respondent would expect the court to do what is expected based upon an unanswered show
cause order (dockets would be defaulted). Based on this representation, the consolidated hearing
was vacated on August 14, 2019.
On August 15, 2019, the deadline for the Amended Order to Show Cause, Respondent’s
counsel informed my law clerk that Respondent would in fact be filing a response to that order.
Respondent’s response to the Amended Order to Show Cause did not address the reason for its
failure to submit a prehearing report by the deadline. Instead, Respondent noted the complexity
of the pending bankruptcy proceedings and asked for the case to be stayed. There is no mention
of how the complexity of the separate and distinct bankruptcy proceeding prevented the filing of
the prehearing statement. There was no request for an extension of the due date for the

41 FMSHRC Page 569

prehearing order which this Court often grants.1 In fact, it is the distinct impression of this Court
that the Respondent has no intention of proceeding to hearing on these dockets.
Respondent has failed to comply with my Amended Order to Show Cause. The
Commission’s procedural rules permit a finding of default and summary disposition of a case
after issuance of a show cause order when a party has failed to comply with a judge’s orders. 29
C.F.R. § 2700.66.
WHEREFORE, I find Respondent to be IN DEFAULT.
Respondent’s notice of contest and request for hearing are DISMISSED. Respondent is
hereby ORDERED to pay a total penalty of $125,543.00 within thirty (30) days of the date of
this Order.2

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

1

Respondent has also requested a stay of all dockets during the bankruptcy proceedings.
There are currently 679 violations totaling $1,028,754.00 pending before the judges of this
Commission.
2

Checks or money orders should be sent to: Mine Safety & Health Administration, U.S.
Department of Labor, P.O. Box 790390, St. Louis, MO 63179-0390.

41 FMSHRC Page 570

Distribution (Electronic Mail & U.S. Certified Mail, Return Receipt Requested):
Robert S. Wilson, Regional Counsel, U.S. Department of Labor, 201 12th Street South,
Arlington, VA 22202
James K. McElroy, CLR, U.S. Department of Labor, MSHA, P.O. Box 560, Norton, VA 24273
David A. Steffey, CLR, U.S. Department of Labor, MSHA, P.O. Box 560, Norton, VA 24273
Hagel Campbell, CLR, U. S. Department of Labor, MSHA, P.O. Box 560, Norton, VA 24273
Joseph Jacobs, Blackjewel, LLC, P.O. Box 249, Stanville, KY 41659
Peter S. Gould, Squire Patton Boggs (US) LLP, 1801 California Street, Suite 4900, Denver,
Colorado 80202
Stephen D. Lerner, Squire Patton Boggs (US) LLP, 1801 California Street, Suite 4900, Denver,
Colorado 80202

41 FMSHRC Page 571

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

August 20, 2019
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on
behalf of JAMES MCGAUGHRAN,
Petitioner,

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. PENN 2019-0144-DM
MSHA Case No. NE-MD_19-05

v.
Mine: Nazareth Plant I
Mine ID: 36-00190

LEHIGH CEMENT COMPANY, LLC,
Respondent.

ORDER GRANTING TEMPORARY ECONOMIC REINSTATEMENT
Before:

Judge Rae

This matter is before me upon an Application for Temporary Reinstatement, filed by the
Secretary of Labor (“Secretary”) on August 1, 2019, pursuant to section 105(c)(2) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2). Section 105(c) prohibits operators
from discharging or otherwise discriminating against miners who have engaged in safety related
protected activity, and authorizes the Secretary to apply to the Commission for miners’
temporary reinstatement, pending full resolution of the merits of their discrimination complaints.
The Secretary seeks an order requiring Lehigh Cement Company, LLC (“Lehigh”), to
temporarily economically reinstate James McGaughran (“McGaughran”) in lieu of actual
temporary reinstatement.
The Application is supported by the Declaration of MSHA Supervisory Special
Investigator Jeffrey C. Maxwell, and a copy of the Discrimination Complaint filed by
McGaughran on May 16, 2019. The Application alleges that McGaughran was terminated in
March 2019 in retaliation for protected activity.
The parties subsequently negotiated and filed a Joint Motion to Approve Settlement
Regarding Temporary Reinstatement, setting forth, for my approval, a proposal that resolves all
issues in controversy with respect to this temporary reinstatement proceeding. The essential
provisions of the Agreement are as follows:
1. Lehigh agrees to make payment to McGaughran, in the amount of $9,317.02, to
account for the time period between August 1, 2019 and the date of this Order;
2. Lehigh agrees to provide wages to McGaughran in the amount of $4,658.51, less
all appropriate and necessary deductions and withholdings, on Lehigh’s regularly
scheduled paydays.

41 FMSHRC Page 572

3. Lehigh agrees to compensate McGaughran with all benefits as if he were
continuously employed, and there shall be no loss in McGaughran’s seniority
status during the temporary economic reinstatement period. Further, McGaughran
shall be eligible for any raises and/or benefits that would accrue during the
reinstatement period.
4. McGaughran is not entitled to request or collect any unemployment compensation
benefits during the temporary economic reinstatement period.
5. Economic reinstatement of McGaughran shall continue unless MSHA finds that
section 105(c)(1) has not been violated, or if the investigation or discrimination
proceeding is otherwise discontinued for any reason. Should the Secretary elect to
file a Complaint of Discrimination under section 105(c)(2) of the Mine Act,
McGaughran’s temporary economic reinstatement will only expire after the
Commission’s judgment in that matter becomes final.
WHEREFORE, the Joint Motion to Approve Settlement Regarding Temporary
Reinstatement is GRANTED, and it is ORDERED that Lehigh Cement Company, LLC
TEMPORARILY ECONOMICALLY REINSTATE James McGaughran, in
accordance with all terms set forth in the parties’ Joint Motion to Approve Settlement
Regarding Temporary Reinstatement of August 16, 2019.

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

Distribution:
Margaret Lopez, Esq., Ogletree, Deakins, Nash, Smoak & Stewart P.C., 1909 K Street NW,
Suite 1000, Washington, DC 20006
M. del Pilar Castillo, Esq., U.S. Department of Labor, 170 S. Independence Mall West, Suite
630E, Philadelphia, PA 19106
James McGaughran, 110, Marsh Lane, Wind Gap, PA 18041
/smp

41 FMSHRC Page 573

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

August 30, 2019
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS
Docket No. VA 2019-0132
A.C. No. 44-03088-492659

v.
BLACKJEWEL LLC,
Respondent.

Mine: P-7 Pigeon Creek

ORDER OF DEFAULT AND ORDER TO PAY
This case is before me upon a petition for assessment of civil penalties under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d).
This docket involves 7 alleged violations and total proposed penalties of $2,170.00. On
August 14, 2019, I issued an Order to Show Cause directing Respondent to explain why an order
of default should not be issued against it given its stated posture of not responding to any
administrative orders from this office. During a conference call with the parties on August 13,
2019, Respondent’s counsel relayed that in light of pending bankruptcy proceedings, Respondent
would expect the court to issue an order of default based upon its failure to respond to a show
cause order. Respondent failed to show cause by the deadline of August 28, 2019.

41 FMSHRC Page 574

Respondent has failed to comply with my Order to Show Cause. The Commission’s
procedural rules permit a finding of default and summary disposition of a case after issuance of a
show cause order when a party has failed to comply with a judge’s orders. 29 C.F.R. § 2700.66.
WHEREFORE, I find Respondent to be IN DEFAULT.
Respondent is hereby ORDERED to pay a total penalty of $2,170.00 within thirty (30)
days of the date of this Order.1

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

Distribution (Electronic Mail & U.S. Certified Mail, Return Receipt Requested):
David A. Steffey, CLR, U.S. Department of Labor, MSHA, P.O. Box 560, Norton, VA 24273
Joseph Jacobs, Blackjewel, LLC, P.O. Box 249, Stanville, KY 41659
Peter S. Gould, Squire Patton Boggs (US) LLP, 1801 California Street, Suite 4900, Denver,
Colorado 80202
Stephen D. Lerner, Squire Patton Boggs (US) LLP, 1801 California Street, Suite 4900, Denver,
Colorado 80202
/smp
1

Checks or money orders should be sent to: Mine Safety & Health Administration, U.S.
Department of Labor, P.O. Box 790390, St. Louis, MO 63179-0390.

41 FMSHRC Page 575

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

August 30, 2019
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS
Docket No. VA 2019-0139
A.C. No. 44-07220-492667

v.
BLACKJEWEL LLC,
Respondent.

Mine: D-17

ORDER OF DEFAULT AND ORDER TO PAY
This case is before me upon a petition for assessment of civil penalties under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d).
This docket involves 1 alleged violation and a total proposed penalty of $1,380.00. On
August 14, 2019, I issued an Order to Show Cause directing Respondent to explain why an order
of default should not be issued against it given its stated posture of not responding to any
administrative orders from this office. During a conference call with the parties on August 13,
2019, Respondent’s counsel relayed that in light of pending bankruptcy proceedings, Respondent
would expect the court to issue an order of default based upon its failure to respond to a show
cause order. Respondent failed to show cause by the deadline of August 28, 2019.

41 FMSHRC Page 576

Respondent has failed to comply with my Order to Show Cause. The Commission’s
procedural rules permit a finding of default and summary disposition of a case after issuance of a
show cause order when a party has failed to comply with a judge’s orders. 29 C.F.R. § 2700.66.
WHEREFORE, I find Respondent to be IN DEFAULT.
Respondent is hereby ORDERED to pay a total penalty of $1,380.00 within thirty (30)
days of the date of this Order.1

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

Distribution (Electronic Mail & U.S. Certified Mail, Return Receipt Requested):
Hagel Campbell, CLR, U. S. Department of Labor, MSHA, P.O. Box 560, Norton, VA 24273
Peter S. Gould, Squire Patton Boggs (US) LLP, 1801 California Street, Suite 4900, Denver,
Colorado 80202
Stephen D. Lerner, Squire Patton Boggs (US) LLP, 1801 California Street, Suite 4900, Denver,
Colorado 80202
/smp

1

Checks or money orders should be sent to: Mine Safety & Health Administration, U.S.
Department of Labor, P.O. Box 790390, St. Louis, MO 63179-0390.

41 FMSHRC Page 577