NOVEMBER AND DECEMBER 2009

COMMISSION DECISIONS AND ORDERS
CENT 2009-660-M
11-13-2009 American Mobile Aggregate Crushing
CENT 2009-716-M
11-13-2009 Bayer Construction Co., Inc.
CENT 2009-758-M
11-13-2009 Fisher _Sand & Gravel Company
LAKE 2010-12-M
11-13-2009 Canneuse Lime, Inc.
LAKE
2010-27-M
11-16-2009 Hanson Aggregates Midwest, LLC.
SE
2009-687-M
11-16-2009 Moran Environmental Recovery
SE
2010-38-M
11-16-2009 Active Minerals International, LLC.
· .WEST 2009-1103-M
·11~18-2009 Delta Sand & Gravel ·
YORK 2009-135-M
11-30-2009 Wingdale Materials, LLC.
WEVA2009-110
11-30-2009 Highland Mining Company
VA
2009-3
12-03-2009 Banner Blue Coal Company
12-10-2009 Morton Salt Division/Morton International
CENT 2010-30-M
VA 2010-7
12-10-2009 John R. Hurley
WEST 2009-1099-M
12-10-2009 Solvay Chemicals
12-10-2009 Blue Haven Energy, Inc.
WEVA2010-144
12-10-2009 . Ray Coun,ty Stone Producers, LLC.
CENT 2010-88-M
12-10-2009 .· M ~ P ~ervfoes;. Inc. · ·
WEVA2009-1983 .
. ·. 12-14-2009 ...· IO Coal Gompany, Inc.
WEVA 2007-293:
12-14-2009 .Webster County Coal, LLC.
KENT 2009-167
12-15-2009 Consoli<hltion Coal Company
WEVA 2009-1871
12-16-2009 Consol Pennsylvania Coal Company ·
PENN 2009-546

Pg. 1281
Pg. 1285
Pg. 1288
Pg. 1291
Pg. 1294
Pg. 1297
Pg. 1300
.Pg.1303
Pg. 1307
Pg. 1313
Pg. 1320
Pg. 1328
Pg. 1331
Pg. 1334
Pg. 1336
Pg. 1339
Pg. 1343,·.
Pg. 1346 ·
Pg. 1367 ·
· Pg.1370
Pg.1373

ADMINISTRATIVE LAW JUDGE DECISIONS
11-04-2009
11-05-2009
11-18-2009
11-23-2009
11-30-2009
12-02-2009
12-03-2009
12-09-2009
12-09-2009
12-11-2009
12-28-2009
12-31-2009
12-31-2009

Cloverlick Coal Co., LLC.
Peter J. Phillipsv. A & S Construction Co.
Consolidation Coal Company
Beylund Construction, Inc.
Sec. Labor o/b/o Lige Williamson v.
Cam Mining, LLC. (amendment)
Sec. Labor o/b/o Mark Gray v.
North Fork Coal Corp. (dissolving Order)
Knox Creek Coal Corporation
RS & W Coal Company
Royal Cement Company
PatriotMining,LLC.
Freedom Energy Mining Co.
Ohio County Coal Company
Shelby Mining Company

i

KENT 2008-497
WEST 2009-286-DM
WEVA2007-712
CENT 2008-721-M

Pg. 1377
Pg. 1387
Pg. 1398
Pg. 1410

KENT 2009-1428-D

Pg. 1418

KENT 2009-1429-D
VA 2007-15-R
PENN 2010-103-E
WEST 2007-844-M
VA 2009-29
KENT 2008-778
KENT 2007-318
SE
2008-667

Pg. 1420
Pg.1422
Pg. 1440
Pg. 1459
Pg. 1464
Pg. 1475
Pg. 1486
Pg. 1501

ADMINISTRATIVE LAW JUDGE ORDERS

11-06-2009
11-13-2009
11-18-2009
12-02-2009
12-03-2009
12-18-2009
12-10-2009

Billy Brannon v. Panther Mining. LLC.
Billy Brannon v. Panther Mining, LLC.
Billy Brannon v. Panther Mining, LLC.
Gilbert Development Corp.
Black-Beauty Coal Company
Litts & Sons Stone Company
Mountain Coal Company
(correcting clerical error- page sub.)

ii

KENT 2009-302-D
KENT 2009-302-D
KENT 2009-302-D
WEST 2008-201-M
LAKE 2008-479
PENN 2009-273-M

Pg. 1515
Pg. 1533
Pg. 1541
Pg. 1547
Pg.1549
Pg. 1557

WEST 2007-409-R

Pg. 1559

NOVEMBER AND DECEMBER 2009

Review was granted in the following case during the months of November and December 2009:
Jayson Turnerv. National Cement Company ofCalifornia, Docket No. WEST 2006-568-DM. (Judge
·
Jacqueline Bulluck, September 30, 2009)

Review was denied in the following case during the months of July and August 2009:
Secretary of Labor, MSHA v. Armstrong Coal Company, Docket Nos. KENT 2009-694, et al. (Chief
Judge Robert Lesnick, October 30, 2009 - unpublished settlement order)

iii

COMMISSION DEQSIONS ·AND ORDERS

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

WASHINGTON, DC 20001

November 13, 2009
SECRETARY OF I:AJrOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

.

.

Docket No. CENT 2009-660-M
A.C. No. 13-02377-181753

AMERICAN MOBILE AGGREGATE
CRUSHING
BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and HealtQ. Act of 1977,' 30 U.S.C.
§ 801 et seq. (2006) ('~e Act"). On July 28, 2009, the Commission received from American
Mobile Aggregate Crushing ("AMAC;') a letter seeking to reopen a penalty assessment that had
become~ fmal order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.

§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order.of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 11FMSHRC1529, 1530 (Sept. 1995).
31FMSHRC1281

AMAC states that it did not receive the proposed penalty assessment from the
Department of Labor's Mine Safety and Health Administration ("MSHA"). AMAC states it was
not aware that MSHA had issued the proposed assessment until it received a delinquency notice
from MSHA dated July 1, 2009.
The Secretary does not oppose AMAC's request to reopen the proposed penalty
assessment and agre~ that the proposed assessment was returned to MSHA undelivered. She
states that all proposed assessments are sent to the operator's address of record and that this
constitutes service under MSHA's rules. She notes that it is the operator's responsibility to
maintain an accurate address of record to ensure future delivery of proposed assessments via
Federal Express.
'
.

31FMSHRC1282

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

Robert F. Cohen, Jr., Commissioner

31FMSHRC1283

Distribution

Mark Zeltwanger, President
AMAC,LLC.
26545 CR 52
Nappanee, IN 46550
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington~ VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance

MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal. Mine..Safety & Health Review Conimission
601 New Jersey Avenue, N~w., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 1284

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

November 13, 2009
SECRETARY OF LAOOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2009-716-M
A.C. No. 14-01456-183840

v.
BAYER CONSTRUCTION
COMPANY, INC.

BEFORE: Jo~ Chairman; Duffy, Young, and Cohen, Commissioners
ORDER

. Bv·Tim ¢0Mtvn8s10N:
.

,

.

,

I

.

.

,

This matter arises und~rthe Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 11, 2009, the Commission received from Bayer
Construction Company ("Bayer") a letter seeking to reopen a penalty assessment that may have
become a final order of the Commission pursuant to section lOS(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section IOS(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

The Secretary submits that upon reviewing the records in this proceeding; she has
discovered that the proposed penalty was timely contested. The operator made its contest of the
penalties at issue in a cover letter that also contained the payment check for some other penalties
and did not include the proposed assessment form. The Secretary asserts that she has corrected
her records and the agency is treating the matter as having been timely filed.

31FMSHRC1285

Having reviewed Bayer's request and the Secretary's response, we find the request to
reopen to be moot. Bayer has timely contested the proposed penalty assessment, and therefore it
did not become a final order of the Commission. The Secretary shall file a penalty petition
within 45 days of the date of this order, if she has not done so already. This case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Robert F. Cohen, Jr., Commissioner

31FMSHRC1286

Distribution
Stan Hambright, Safety Manager
Bayer Construction Co., Inc.
P.O. Box 889
Manhattan, KS 66505-0889
W. Christian Schumann; Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th FIOor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety &Health Review Comntission
·601 New Jersey Avenue~ N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC1287

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

November 13, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2009-758-M .
A.C. No. 32.:.00580-194209

v.
FISHER SAND & GRAVEL
COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE
COMMISSION:
,·
...
.
· . This matter arises under.the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). Oil August 21, 2009, the Commission received ~om Fisher.
Sand & Gravel Company ("Fisher") a letter seeking to contest the citation that had given rise to a
penalty assessment that may have become a final order of the Commission pursuant to section
105(a) of the Mine Act, 30 U.S.C.§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
The Secretary submits that upon reviewing the records in this proceeding, she believes
that the proposed penalty has not become a final order of the Commission. On August 12, 2009,
the Department of Labor's Mine Safety and Health Administration ("MSHA'') issued Proposed
Assessment No. 000194209, which was received by Fisher on August 17, 2009. On August 21,
2009, Fisher sent the Commission a letter attempting to contest the citation that had given rise to
the proposed penalty. On September 2, the Secretary contacted Fisher's legal counsel and
infonned him that Fisher had until September 16, 2009, to either contest or pay the proposed
penalty. On September 15, 2009, Fisher filed a timely contest of the proposed penalty, and the
proceeding has been assigned Docket No. CENT 2009-831-M.

31 FMSHRC 1288

Having reviewed Fisher's request and the Secretary's response, we find the request to
reopen to be moot. Fisher has timely contested the proposed penalty assessment, and therefore it
did not become a final order of the Commission. This case shall proceed pursuant to the Mine
Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Robert F. Cohen, Jr., Commissioner

31FMSHRC1289

Distribution
Timothy A. Priebe, Esq.
Fisher Sand & Gravel Co.
P.O. Box 1034
3020 Energy Drive
Dickinson, ND 58602-1034
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, v A 22209-2296
Myra James, Chief
·Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
·Chief Administrative LawJudge Robert J. Lesnick
Federal Mine Safety & Health Review Commiss~on ,
601 New Jersey Avenue, N.W., Suite 9500 ·. · · · ·
. Washington, D.C. 20001-2021

31 FMSHRC 1290

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

November 13, 2009
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2010-12-M
A.C . .No. 33-00013-190312

v.
CARMEUSE LIME INC.

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
.

.

:av THE COMMISSION:
This matter arises tinder the Federal Mirie Safety and Health Act of 1911, 30 u.s.c.
§ 801 et seq. (2006) (''Mine Act"). On October 6, 2009~ the Cbin:tnission received from
Carmeuse Lime Inc. ("Carnieuse") a motion frOm counsel to re<>pen a penalty assessment that
had become final order of the Commission pursuant to section l05(a) of the Mine Act,'.30
U.S.C. § 815(a).

a

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than.30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the· Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section lOS(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (''JWR"). In evaluating requests to
reopen final section 105{a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 11FMSHRC1529, 1530 (Sept. 1995).
31 FMSHRC 1291

In a detalled submission, Carmeuse explains that the company official responsible for
filing notices of contest to penalty assessments was out of the office on travel during much of the
30-dayperiod following the operator's receipt of the subject assessment and that he had taken on
additional duties because of the sudden resignation of the regional manager. Consequently the
notice that Carmeuse was contesting two of the penalties was mailed one day late to the
Department of Labor's Mine Safety and Health Administration. The Secretary of Labor does not
oppose reopening..
Having reviewed Carmeuse's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
, furth~.proceedings pursuant to the Mine Act and the Commission'$Procedural Rules, 29 C.F.R.
Part 2700. · Accordingly, consistent with Rule 28, the Secretary shall file· a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 1292

Distribution
R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
llOO Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd, 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert l Lesnick·
Federal Mine Safety & Health Review, Commission
601 New Jez:~eyAvenue, N.W., Suite 9500
Washington, D.'c. 20001-2021

31FMSHRC1293

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

WASHINGTON, DC 20001

November 16, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2010-27.:.M
A.C. No. 33-00064-181827

v.
HANSON AGGREGATES
MIDWEST,LLC

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
·'
BY THE COM¥JSSION:

: . '.-

·
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U'.S.C.
.
§ soi' et seq. (2006) ("Mine Act*'). On October 8, ..2009, the' Commission received from Hanson .
Aggregates Midwest, LLC ("Hanson'') a requesito reoperi a penalty assessment that had become
a final order of the Commission puisuant to,section.105(a) of the M~e Act, 30 U.S.C. § 815(a).
Under section I OS(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders llllder section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR''). fu evaluating requests to
reopen final section 105{a) orders, the Commission has folllld guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l{b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31 FMSHRC 1294

The Department of Labor's Mine Safety and Health Administration ("MSHA") issued
Proposed Assessment No. 000181827 to Hanson on April 9, 2009, proposing penalties for three
citations and an order that had been issued to Hanson on January 15, 2009. Hanson, which had
by letter previously requested a conference with the local MSHA office on two of the citations,
promptly paid the other two penalties. Hanson states that it filed its request to reopen after
learning :from the local MSHA district office that the office had lost Hanson's conference
request. It appears from Hanson's request that it mistakenly believed that its conference request
also served as a notice of contest for the proposed penalties associated with the two citations in
question. The Secretary of Labor does not oppose reopening.
.
Despite its outstanding conference request on the citations, Hanson was obligated to file a
formal contest of the associated penalties in the assessment within 30 day5. of receipt of the
assessment. See 29 C.F.R. § 2700.26. Nevertheless, having reviewed Hanson's request and the
Secretary's response, in the interests of justice, we hereby reopen this matter and remand it to theChief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31FMSHRC1295

Distribution:
Dean Harshman
ESHMngr.
Hanson Aggregates Midwest, LLC
8130 Brint Rd.
P.O. Box278
Sylvania, OH 43560-0278
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick .
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500 ·
Washington, D.C. 20001-2021

31 FMSHRC 1296

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

SUITE9500
WASHINGTON, DC 20001

November 16, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. SE 2009-687-M
A.C. No. 38-00014-180422

MORAN ENVIRONMENTAL RECOVERY

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety~d Health Act of 1977, 30 U.S.C.
§ 801 etseq. (2006) ("Mine Act'')~ On Juiy 7, 2009, UteCommissionreceived from Moran·
Environmental Reeovery ("Moran").a letter from its biiector ofHealth & Safety seeking to
reopen a penalty assessinent that had become a final order of the Commission pursuant to sectio.n
105(a) of the Mine Act, 30 tJ.S.C. § 81S(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 81S(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89{May1993) ("JWR"). In evaluating requests to
reopen final section lOS(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31FMSHRC1297

The Department of Labor's Mine Safety and Health Administration ("MSHA") issued
Proposed Assessment Case Number 000180422 to Moran on March 26, 2009. Moran states that
it mailed its contest of the proposed assessment to the wrong MSHA address and was not
informed of its error until after the time to file has passed. Moran enclosed documentation
indicating that it mailed its letter of contest timely, but to an incorrect MSHA address.
The Secretary_does not oppose Moran's motion to reopen.
Having reviewed Moran's request and the Secretary's response, in the interests of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
i10o:, Aceordingly, consistent with Rule 28, the Secretary shall file· a petition for assessm~ent of
· · penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31FMSHRC1298

Distribution:
Leanne M. Stegman
Dir. of Health & Safety
Moran Environmental Recovery
20 Commerce Rd.
Newton, CT 06470
W. Christian Schumann, Esq.
Office of the Solicitor
U:S. DepartmenfofLabor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
. 1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesl)ick ·•
Federal Mine Safety & Health Review Commission ·
601New Jersey Avenue, N.W., Suite9500 ·
W~:ngton, D..c. 20001.:2021
··

31FMSHRC1299

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

Noveinber 16, 2009
SECRETARY OFLABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2010-38-M
A.C. No. 09-01192-189515

v.
ACTNE MINERALS
INTERNATIONAL, LLC

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (''Mine Act") .. On October 13, 2009, the Commissfon reeeivedfr(;Iri: Active
Minerals International, LLCf'Active") a motion from counselto reopen a penalty assessment
that had become a final order of the Commission pursuant to· section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

31 FMSHRC 1300

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
The Department of Labor's Mine Safety and Health Administration ("MSHA") issued
Proposed Assessment No. 000189515 to Active on June 30, 2009, proposing penalties for five
citations that had been issued to Active in early May 2009. Counsel for Active contends that she
timely contested all fiv~nalties on behalf of the operator by letter to the local MSHA district
office dated July 13, 2009. The Secretary of Labor does not oppose reopening, but states that the
proposed assessment form instructs that notices of contest are to be mailed to MSHA's Civil
Penalty Compliance Office in Arlington, Virginia.

form

· · · "· ·· The Secretary correctly points out that the proposed assessment
specifies ~t
contests of proposed penalties are to be sent to the Arlington office. Nevertheless, we note that
Active did send its letter to the local MSHA district office within the 30-day period for contests,
and there is no indication that Active has previously sent contests to the wrong address. 1 Having
reviewed Active' s request and the Secretary's response, in the interests of justice, we hereby
reopen this matter and remand it to the Chief Administrative Law Judge for further proceedings
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.
Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty
within 45 days of the date of this order. See 29 C.F~R. § 2100.28.

Robert F. Cohen, Jr., Commissioner

1

We caution Active that it must send any future notices of contest regarding proposed
penalties to the address specified on the proposed assessment form.
31 FMSHRC 1301

Distribution:
Carla J. Gunnin, Esq.
Constancy, Brooks & Smith, LLC
Suite2400
230 Peachtree St.
Atlanta, GA 30303-1557
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department ofLabor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
·
.·1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
. 601 New Jersey Avenue, N.W., Suite 9500
.Washington, D.C. 20001-2021

31 FMSHRC 1302

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

November 18, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

.

Docket No. WEST 2008-1103-M
A.C. No. 35-00481-131.566
'

DELTA SAND & GRAVEL CO.
BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Fedetal Mine Safety and Health Act of 1977, 30 u.S.C.
§ 801 et seq. (2006) ("Mine Act'). On March 3~ 2009, the ~ommi~ion received from Delta . .
· Sand &-Gravel Co. ("Deltan) a second.motion by counsel seeking to reopen a penalty.assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 3.Q ·
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. Ifthe operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (''JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules ofCivilProcedure''); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to

31 FMSHRC 1303

timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
On February 26, 2008, the Department of Labor's Mine Safety and Health Administration

("MSHA") issued a proposed penalty assessment to Delta for two citations MSHA had issued to
Delta in November 2007. Delta did not pay the assessment until it received a delinquency notice
from MSHA. In its first motion, Delta requested reopening on the ground that the assessment
was paid in error. According to Delta, the citations underlying the assessment were related to a
fatal accident, and Delta had intended to contest the proposed penalties, as it later did in the case
of another, much larger, assessment resulting from that accident. Delta stated that its payment of
the penalties was due to office personnel not realizing the connection between the assessment .
and the accident.
·
While Delta's request for relief addressed the mistake that led to its failure to return the
assessment form to MSHA, its motion was silent regarding why the assessment apparently sat
unpaid for months, despite having purportedly been routed through Delta's payment process.
Consequently, Delta's request to reopen was denied without prejudice. Delta Sand & Gravel
Co., 31FMSHRC4, 5 (Jan. 2009). 1
In its second request to reopen, Delta states that the assessment was not paid until the.

delinquency notice was received.from MSHA because the individual responsible for reviewing·
and paying assessments, Mark Slinker, died iii the July2007 fatal accident that led to:the ··
. citations that are the subject ofthe assessment. ·According to Delta, it had yet to put new . ,.
· procedures in place when the assessment.at issue: was received. .
·;., ·
'

. .

. ·. ' : '. ·. ~\. . ... ·.
;

· ;, ·.: . The Secretary of Labor did riot oppose Delta's first request to reopen and did not r~pond
to the second request.

1

Commissioners Jordan and Cohen voted to deny Delta's original motion without
prejudice, while Chairman Duffy and Commissioner Young would have remanded the case to the
Chief Administrative Law Judge for a determination of good cause. The effect of the split
decision was that the motion was denied without prejudice.
31 FMSHRC 1304

The fact that the proposed assessment was received seven months after the tragic death of
Mr. Slinker but Delta had not yet adjusted its procedures to account for his absence suggests that
Delta was not paying proper attention to its obligations under the statutory penalty assessment
process. Nevertheless, given the circumstances of this case, including the fact that Delta had
earlier indicated an intent to contest proposed penalties issued in connection with the fatal
accident, in the interests of justice, we hereby reopen this matter and remand it to the Chief
Administrative Law Ju<!ge for further proceedings pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 1305

Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 207J)5
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief A4n;rim$tratiye Law Judge Robert J. Lesnick
Fedenu Mine Safety & Health Review Comniission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 1306

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

November 30, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK 2009-135-M
A.C. No. 30-03138-179105,

v.

WINGDALE MATERIALS, LLC

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY: Jor~, Ch~~; Y 0.ung and Coheri, Commissioners
•

.

•

• .

•

•

~·

·'

•·

'> .~.

..

.

.

•

•

•

This matter arlses linder the Federal Mlne Safety and Health Act ofl977, 30 U.S.C.
§ 801 seq. (2006)('~e Act"). On June 16, 2009, the Commission received a motion by
.
counsel to reoperi a pellalty assessment issued to Wingdale Materials, LLC ("Witigdale'') that had .
become a final order of the Commission p;ursuant to section 105(a) of the Mine Act, 30 U$.C. ·
§ 815(a).

et

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.1()>) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits pennitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31 FMSHRC 1307

Wingdale states that it received Proposed AssessmentNo. 000179105 from the
Department of Labor's Mine Safety and Health Administration ("MSHA") on March 18, 2009.
In an affidavit, Wingdale's safety director explains that he was away at the time and did not
personally receive the assessment until March 30. He subsequently was also away from the mine
on travel the first week of April, and states that he neglected to act upon the assessment
immediately after he returned. He mailed the contest form, indicating Wingdale's intent to
contest penalties a_ss®iated with seven citations, six days too late. Soon after, the operator paid
the other proposed. penalties.
The Secretary of Labor opposes Wingdale's request to reopen the proposed assessment.
. She c~aracterizes Wingdale' s procedures for responding to assessments as inadequate, and
argues that inadequate or unreliable internal office procedures do not constitute the exceptional:
circumstances required for reopening.
Having reviewed Wingdale' s request to reopen and the Secretary's response, we conclude
that Wingdale has failed to provide a sufficiently detailed explanation for its failure to timely
contest the proposed penalty assessment. The safety director's generalized excuse that he did not
receive the assessment uri.til March 30, 2009, due to his "travel and work schedule" is not
sufficient to warrant relief. Moreover, he admittedly received the assessment on or about March
30, 2009. He thus became personally aware of the ,assessment well before the April t.7 deadline,
for contesting it, but offers ohly the excuse 'that .he was traveling on business during the first. ;
. . week of April. This fails to explain why he did not contest the penalzy prior to the deadline, .·
. dµring the period in Apnl when he .was .not traveling.
·

31 FMSHRC 1308

Wingdale's submission does not provide the Commission with an adequate basis to
justify reopening. Accordingly, we deny without prejudice Wingdale's request. 1 See e.g.,
Eastern Associated Coal, LLC, 30 FMSHRC 392, 394 (May 2008). If Wingdale submits another
request to reopen the case, it should explain with specificity why the safety director's work and
travel schedule between March 18 and March 30 precluded action on the assessment, and why he
did not contest it after the end ofthe first week in April when he returned from his travel.

Robert F. Cohen, Jr., Commissioner

1

Our dissenting colleague lists ten recent cases in which we have granted reopening after
MSHA's proposed assessments have become final under section 105(a) because of the failure by
operators to timely contest the proposed assessment. Our colleague claims that the information
provided by the operators in most, if not all, of these cases was ''much less detailed" than the
information submitted by Wingdale here. Slip op. at 4. We respectfully disagree, and find the
cases to be distinguishable on various grounds. See, e.g., J & T Servs., 31FMSHRC118
(Feb.2009) (person responsible for filing contest form was killed in accident shortly after
receiving proposed assessment, and contest was filed two days late). As our colleague
acknowledges, in none of these ten cases did the Secretary oppose reopening.
By contrast, in the present case, there are periods of time during which Wingdale's failure
to act is unexplained. Consequently, we are not denying Wingdale's motion outright, but
requiring it to fully explain why the proposed assessment was not contested timely.
31 FMSHRC 1309

Commissioner Duffy, dissenting:
I would not deny the operator's request to reopen but would instead grant reopening.
While the majority's denial is without prejudice, and thus leaves the door open for the operator to
file another request to reopen, I am not sure what would be gained by requiring its safety director
to account for his comings and goings during March and April of this year. The motion in this
case presented an honest admission by the safety director that he knew he was under a deadline to
file a notice of contest but that travel away from the office on two occasions during the relevant
period resulted in his failure to timely file. The contest was filed six days late.
. I am mindful that mine safety and health enforcement has st~ed up in intensity over the ... ,.
past several years and ha5 resulted in a sharp increase in citations and orders issued. I am further ·

mindful that this intensity has markedly increased the day-to-day responsibilities of all
concerned. This Commission, for example, has seen its yearly caseload increase from a level of ·
2,437 new cases in FY 2005 to 9,240 new cases in FY 2009. MSHA has been authorized to hire
hundreds of new inspectors to ensure that all mandated inspections of surface mines (twice
annually) and all underground mines (four annually) are conducted. The duties of those charged
with complying with the Mine Act and its standards are being stretched as well.
These circumstances do not absolve .mine Qperators .from .Promptly asserting their rights
and carrying out their responsibilities in cbntestirig 'Citations and penalties under the Act's · · " :,
procedural requirements, and the Commission has recently been looking at requests to reopen· , •.
with a more critical eye than in the past. We have· gone·so far as to institute a rulema.king in an.:
·.,attempt t0; set criteria and standards for determining when granting a request to reopen a .
proceeding is appropriate.
In the meantime, and given the circumstances outlined above, I find that a six-day delay

in filing a penalty contest that is honestly admitted as having occurred due to press of business·
falls under excusable neglect. We have of late granted a number of requests to reopen where the
notice of contest was submitted to MSHA just a few days late. Compared to the information
provided in support of the request to reopen in this case, the information provided by the
respective operator in most if not all of each of those other cases was much less detailed
regarding what, specifically, prevented the operator from filing a notice of contest at any time
during the 30-day period after the penalty assessment was received. 1

1

See, e.g., Ruscat Enterprises, Inc., 31 FMSHRC 112 (Feb. 2009); Oak Grove Res.,
LLC, 31 FMSHRC 115 (Feb. 2009); J & T Servs., 31 FMSHRC 118 (Feb. 2009); Clean Energy
Mining Co., 31FMSHRC370 (Apr. 2009); Lueders Limestone, LP, 31FMSHRC386
(Apr. 2009); Black Butte Coal Co., 31 FMSHRC 400 (Apr. 2009); Mosaic Phosphates Co.,
31 FMSHRC 504 (May 2009)~ Alex Energy, Inc., 31 FMSHRC 540 (May 2009); DickensonRussell Coal Co., 31FMSHRC587 (June 2009); West Virginia Mine Power, Inc., 31 FMSHRC
600 (June 2009).
31FMSHRC1310

While it is true that in those cases the Secretary did not oppose reopening, she, like the
majority, provides no explanation for treating this case differently, other than that the safety
director appears to have admitted there were times during the 30-day contest period when he
could have submitted the form. The Commission has never required a detailed accounting of
what prevented an operator from submitting a notice of contest throughout the 30 days in which
it had to respond to an assessment, and no reason for the Commission to do so has been advanced
in this case.
Consequently, I cannot agree with the majority that relief in this instance should be
contingent upon the operator's submis~ion of a greater amount of information than it has already
submitted. In additional; I am doubtful that the safety director can say much more than he did
when the request to reopen was filed over five months ago.

31 FMSHRC 1311

Distribution:
Mark N. Savit, Esq.
Patton Boggs LLP
1801 California Street, Suite 4900
Denver, CO 80202_
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
HOO Wilsori Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. D.ept. Of Lal>or
llOO·Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC1312

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE; NW
SUITE9500

WASHINGTON, DC 20001

November 30, 2009
Docket No. WEVA 2009-110
A.C. No. 46-08693-145240
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
. ADMINISTRATION (MSHA)

Docket No. WEVA 2009-688
A.C. No. 46-08693-164121 .. ·

v.

Docket No. WEVA 2009-689
A.C. No. 46-08693-167069

IllOHLAND MINING COMPANY
Docket No. WEVA 2009-1037
A.C. No. 46-06558-169988
BEFORE: Jordan,
Chait:man;
Puffy,
Young~. and Cohen, Commissioners
--·
·...
'.
..

.

ORDER
. BY: Duffy, Young, and Cohen, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On October 14, 2008, the Commission received from
Highland Mining Company ("Highland") a motion made by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a). On January 21, 2009, the Commission received two more such
motions from Highland, and on March 25, 2009, the Commission received a fourth motion. 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEVA 2009-110, WEVA 2009-688, WEVA 2009-689, and WEVA
2009-1037, all captioned Highland Mining Co., and all involving similar procedural issues.
29 C.F.R. § 2700.12.
31FMSHRC1313

With respect to Docket No. WE.VA 7009-110, on April l, 2008, the Department of
Labor's Mine Safety and Health Adrnfuisti:aiion ("MSHA") issued proposed penalty assessment .
No. 000145240 to Highland. In its niotion to reopen the assessment, Highland acknowledges
that a security guard, no longer employed by Highland, signed for the package containing the
assessment. Highland states that the security guard left the package in the guard house and that it
was never seen again. Highland further explains that it learned of its delinquency with respect to
the assessment aroun4 July 15, 2008, when it received a letter from MSHA. It did not file a
motion to reopen for another three months.
With respect to Docket No. WEVA 2009-688, on September 30, 2008, MSHA issued
proposed penalty assessment No. 000164121 to Highland. The record indicates that the propqsed
' ·penhlfy assessment was signed for by the company receptionist but ·was subsequently lost within
the operator's internal mail system and never delivered to Highland's safety direct9r for
processing. Highland's motion describes the procedures the receptionist was to have followed.
After receiving a notice from MSHA dated December 30, 2008, stating that payment on the
proposed assessment was delinquent, the safety director promptly investigated the matter and
· notified counsel, who filed a motion to reopen on January 21, 2009.
With respect to Docket No. WEVA 2009-689, on October 28, 2008, MSHA issued ,;
proposed penalty assessment No. OOQl ~706~ ~ !Jighland. Highland states that the proposed.
penalty assessment was misplaced on the desk of the operator's safetY director, Jason.Jude; and
that, as a result, Highland inadvertently failed to tr~,mit the proposed penalty ass.essment to ·
counsel for the· filing of a contest. After c:liscovering·the mistake, the operator states that it : ·
immediately transmitted the. matter to counsel •. who submitted the contest to MSHA ;that same ·..
day. By letter dated December 23, 2008, MSHA ·rejected the submission M witimely. The ,
. 9perato:r filed a motion to reopen on January 21, 2009.
With respect to Docket No. WEVA 2009-1037, on December 2, 2008, MSHA issued
proposed penalty assessment No. 000169988 to Highland. Highland states that the proposed
penalty assessment was misplaced on the desk of the operator's safety director, Lewis Sheppard,
and that, as a result, Highland inadvertently failed to transmit the proposed penalty assessment to
counsel for the filing of a contest. After the operator received a delinquency letter from MSHA
dated February 26, 2009, operator's counsel filed a motion to reopen on March 25, 2009.
The Secretary only opposes the reopening of the first assessment that Highland seeks to
reopen. She opposes reopening on the ground that the operator has conceded that it had no
standard practice or procedure for deliveries to the guard house and has failed to explain why it
waited three months to file a request for reopening after learning of the delinquency. The
Secretary does not oppose reopening the other three assessments.2
2

We consider the Secretary's position in the three cases in which she does not oppose
reopening in light of the provisions of the Informal Agreement between Dinsmore & Shohl
Attorneys and Department of Labor - MSHA - Attorneys Regarding Matters Involving Massey
31FMSHRC1314

We have held that, in appropriate;: circumstances . w~ possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.1.(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
::., ·
A.

Whether Highland Demonstrated Good Cause for Failing to Timely Contest the Penalties
1.

Assessment No. 000145240

Having reviewed Highland's motion and the Secretary's response,' we deny the motion
with prejudice. We have held that an inadequate or unreliable system for delivering internal .mail
does not constitute inadvertence, mistake or excusable neglect so as to justify the reopening of an
ass'dssment·which has become final under section JOS.(c) ofthe Mine, Act. Pinnacle;Mining Co.-,
i30 FMSHRC1'06i (Dec.. 2008); Pinnacle Mining:do., 3:0 EMSHRC 1066 (Deei 2008);:.ree. GitJb.s
v. Air Canada; 810 F. 2d 1529, 1537-38· (1 lth Cir~ 1987){h,olding that default:caused by failure ·.,
to establish minimum procedural safeguards for determining that action in response to summons,:.
arid cottiplaintwas taken does not.constitute default
through
excusable neglect). The:Secretary
>.
.
.
.
cottectly poilits out that Highland concedes that '1here was. no standard practice or p.rocedure -:for.~
mail and packages delivered to the guard house." Mot. at 2. However, Highland's motion also, ·
indicates at another point that guards were responsible for delivering packages that they received.
to the business office or addressee within the company. Id. In light of Highland's concession
and its apparently inconsistent explanation of its procedtires~ we conclude that it has failed to
establish good cause for reopening the. proposed penalty assessment.

Energy Company Subsidiaries" dated September 13, 2006. That agreement was in effect when
the Secretary filed her responses. Therein, the Secretary agreed not to object to any motion to
reopen a matter in which any Massey Energy subsidiary failed to timely return MSHA Form
1000-179 or inadvertently paid a penalty it intended to contest so long as the motion to reopen is
filed within a reasonable time. Thus, we assume that the Secretary was not considering the
substantive merits of a motion to reopen from any Massey Energy subsidiary so long as the
motion was filed within a reasonable time. Such agreements obviously are not binding on the
Commission, and the Secretary's position in conformance with the agreement in this case has no
bearing on our determination on the merits of the operator's proffered excuse. The Commission
has been informed that, since the time the Secretary filed her responses, she has rescinded the
agreement.
31 FMSHRC 1315

2.

Assessments Nos. 000164121. 000167069. ap.d 000169988

The three assessments were issued in a period of a little over two months, and Highland
has provided a different reason for its failure to timely respond to each. While this could be a
series of random mistakes, it could also be an indication of inadequate procedures. We are
particularly concerned that in late December 2008 Highland was put on notice by MSHA that it
had failed to timely r~pond to Assessment Nos. 000164121 and 000167069, yet Highland
nevertheless failedto timely respond to still another assessment, No. 000169988.
.Consequently, we hereby deny the motions to reopen these three assessments, but without
prejudice. Should Highland renew its reopening requests, it must do so within 30 d~ys, and fully
explain the circumstances in the three failures to timely contest the proposed assessments. It
must also address what it has done to ensure that it does not misplace penalty asse§sments in the
future and to ensure that it responds to them in a more timely manner, in order to avoid a repeat
of the mistakes it outlined in its four motions.

B.

Highland's Promptness in Seeking Rwpening

Under_ Rule 60(c), a motion to reopen, regardless of its merit, is only granted if it is filed .
within aieasonable,time. Jn the context of penalty;,assessments,Jn<eonsidering whether an,, · ; ·
'Opei.ator has unreasonably delayed in filing a motion if~. reopen'.; W:e-,find relevant the,a,nountof.,
time: tlult has, passed bet\veen an operator'·s rebeipt of a delihqrieney:notice or other notification ,
from MSHAand the ·operator's filing of its motion to!reopen. SeeJ e.g., Left Fork Mining Co., 3 L:
FMSHRCs,n1(Jan.2009). .
; .. : ~ ., ;
.'
:. . ;
:
··:".'·...
: : Here~ with.regard to the firstassessment,·Highlandfails to:explain why, after it learned of ,
the delinquency, it waited three more months before filing its request to reopen. 3 In contrast, ·
with respect to the other three assessments, Highland acted promptly, filing each motion to ·
reopen within 30 days after learning that it had failed to file a timely contest.
In the future, to save time and conserve its resources, the Commission will ordinarily
analyze the question of whether the request to reopen was filed in a reasonable time in the
following manner. Motions to reopen received within 30 days of an operator's receipt of its first

3

The amount of time is especially relevant, because the Secretary's response raised that
issue, and Highland did not file a reply providing an explanation. We encourage parties seeking
reopening to provide further infonnation in response to pertinent questions raised in the
Secretary's response. See, e.g., Climax Molybdenum Co., 30 FMSHRC 439, 440 n.1 (June
2008). Accordingly, where the Secretary raises the issue of the delay between receipt of a
delinquency letter and the filing of the request to reopen, an operator who does not explain why,
after it was informed of a delinquency, it took as long as it did to request reopening, does so at its
peril.
31FMSHRC1316

notice from MSHA that it has failed to timely file a notice of contest will be presumptively
considered as having been filed within a reasonable amount of time.
Motions to reopen filed more than 30 days after receipt of such information from MSHA
should include an explanation for why the operator waited so long to file for reopening. The lack
of such an explanation is grounds for the Commission to deny the motion.
In addition to bemg prompt in filing a motion· to reopen, an operator must also .set forth an
adequate explanation of the reasons for its delinquency, as we have previously held.

\

~

Robert F. Cohen, Jr., Commissioner

31FMSHRC1317

Chainnan Jordari, concurring and dissenting:
I agree with the majority that the. motion to reopen in Docket No. WEV A 2009-110
should be denied with prejudice. However, unlike my colleagues, I would also deny with
prejudice the motions in the remaining three dockets.
A review of the four motions submitted by the operator reveals a system that fails to give
appropriate priority toproposed penalty assessments sent by MSHA. The four cases before us
involve deliveries of proposed assessments that occurred from April 2008 until December 2008,
an eight month time frame. During this period problems occurred at every stage of the operator's
internal mail system. For example, in Docket No. WEVA 2009-110, the assessment was
delivered to the guard house but apparently never went further. In Docket No. WEVA 2009-688,:
the safety director states that he never received the proposed assessment and offers only the
general speculation that it was lost or misplaced after the receptionist signed for the delivery.

In Docket Nos. WEVA. 2009-689 and 2009-1037, the safety directors did receive the
assessments. But even that modest success did not result in timely contests of those proposed
penalties. In the first case, the safety director declares that, in completing the contest, he was
interrupted by other job duties. Jude Aff. at 2. In the· second case, a different safety directQr
states that he was interrupted while completing the contest beca~e he."had to address other
important company matters as part of [his] job duties/~ Sheppard Affi··at 2 .. These explanations
do.not rise to the l~vel of''mistake, inadvertence, or excusable negleet"; a safety-director will
always have a multitude of tasks, and the mere ex~stence of other job,duties does not warrant
relief.
In sum, indifference, as opposed to inadvertence, would .appear to more accurately
describe the underlying reason for Highland~s pattern· of untimely contests, and constitutes
grounds for denying its motions to reopen in these cases. ·See Rogers v. Hartford Life & Accident
Ins. Co., 167 F.3d 933, 938-39 (5th Cir. 1999) (finding that the district court did not abuse its
discretion in refusing to set aside default judgment when a failure to establish minimum internal
procedural safeguards was at least a partial cause of company's failure to respond to complaint).

31FMSHRC1318

Distribution:
Max L. Corley, ID, Esq.
Dinsmore & Shohl, LLP
P. 0. Box 11887
900 Lee Street, Suite 6QO
Charleston, WV 25339
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA ·
U.S. Dept. Of Labor
HOO Wilsom. Blvd., 25th Floor
Arlington, VA 22209•3939 ·
Chief Administrative Law Judge Robert J. Lesnick
Federal· Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
·Washington, D.C. 20001-2021 ·

31FMSHRC1319

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

December 3, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. VA 2009-3
A.C. No. 44-03317-153866
Docket No. VA 2009-4
A.C. No. 44-06685-153869

v.

BANNER BLUE COAL COMPANY
BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY: .Jo~.
. ChaimiC1n; Duffy and Young, Gommissi~ners
.

This matter arises under the Federa1Mfue'$afety ~d Health. Apt 0(1977, 30, U.S.C ..
§ 801 et seq. (2006) (''Mine Act''). On October)., 2008, the Colliiniss~on·received from Banner
Blue Coal Company (''Banner Blue") requests to reopen two penalty assessment that had becoine
final orders of the Commission pursuant to section 105(a) of the Mine Act~ 30 U.S.C. § 815(a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On June 17, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued two separate proposed penalty assessments to Banner Blue. Banner Blue,
however, did not file notices of contest with MSHA until August 22, 2008. Banner states that
one reason for the late filing ofits contests was the placement, in error, of an internal date stamp
of"July 25, 2008," on each of the proposed assessments by Kristy Hurley, a secretary with
Banner Blue's parent company, although the assessments were actually received a month earlier.
Banner Blue also contends that MSHA's change in delivery methods from the use of certified

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers VA 2009-3 and VA 2009-4, each captioned Banner Blue Coal Co.,
and involving similar procedural issues. 29 C.F.R. § 2700.12.
31 FMSHRC 1320

mail to the use of Federal Express delivery had disrupted its internal processing system for
·
proposed assessments. 2
The Secretary opposes reopening on the ground that the parent company's safety director
- who ultimately reviewed the assessments and directed the company's counsel to contest certain
of the penalties in each assessment - should have noticed the June 17, 2008, issuance date on the
assessments, investigat~d the discrepancy with the internal date stamp, and discovered that the
assessments had actually been received on June 24. The Secretary also points out that MSHA
had changed its delivery methods approximately nine months before Banner Blue received the
proposed assessments. ·
We have held that in appropriate circumstances, we possess jurisdiction to roopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). Jn evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.1 (b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh femedy and that, ifthe defaul~g, p3:11Y pan µiake a showing of good cause for a failure to.,.
timely respond, the case may be reopened and' appropriate pro~eedings: oif the merits permittecJ; ...
See Goalfrep. Servs.,lnc., 17FMSHRC1529,lS~O(S~t 1995).

2

Banner claims that this change resulted in assessments going first to its president's
secretary rather than directly to Ms. Hurley in the Engineering Department. However, documents
submitted by the Secretary indicate that Ms. Hurley signed for the Federal Express deliveries of
the assessments at issue here.
31FMSHRC1321

Having reviewed Banner Blue's requests and the Secretary's response, in the interests of
justice, we hereby remand this matter to the Chief Administrative Law Judge for a determination
of whether the alleged erroneous date-stamping of the assessments constitutes good cause for
Banner Blue's failure to timely contest the penalty proposals and whether relief from the final
orders should be granted. 3 If it is determined that such relief is appropriate, this case sball
proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F:R. Part 2700.

3

In our opinion, a judge would be in a better position to consider those facts raised by
the Secretary and our dissenting colleague, Commissioner Cohen~ that cast doubt whether Banner
Blue's failures to timely file notices of contest can be attributed to the erroneous date-stamping.
31 FMSHRC 1322

Commissioner Cohen, dissenting:
This case involves two penalty assessments - 16 enforcement actions with penalties
totaling $44,629.00. My colleagues would remand the case to the Chief Administrative Law
Judge for a determination of whether good cause exists for Banner Blue's failure to timely
contest the penalty proposals. I respectfully dissent because the facts offered by Banner Blue in
its motions fall far shoit-of demonstrating good cause for reopening, especially in light of the
criteria of mistake, inadvertence, surprise, or excusable neglect contained in Rule 60(b) of the
Federal Rules of Civil Procedure.
Banner Blue is controlled by Wellmore Coal Company ("Wellmore"). Mot. at 2.
According to the motions, Wellmore has a central mine management office which handles the
operations of24 mines. Id. According to the motions, Wellmore receives "foot higl}. stacks of
mail that [come] in each day for all ofWellmore's 24 mining operations." Id. According to the
motions, Wellmore employs one secretary who is ''without ample storage" to handle this volume
of mail. Mot. at 5.
The record shows that the two proposed assessments, both dated June 17~ 2008, were
received by Wellmore on June 24, 2008. 1 However, the assessm.ents bear a ''Wellmore Coal
·company- Engineering Department" date stamp. of July25~, 20()8. ,Accoliding to the':motions,
Banner Blu~· s counsel ''processed" the assessmentsfon Arigiist.22, 2008: Mot.- at 1. ,After .•: ·
MSHA notified Banner Blue's counsel that the contests of the assessments were not filed timely, .
counsel submitted these motions to the Commission
September 30~ 2008.

on

:

. '.

Banner Blue advances three possible explanations fotits.failure to timely contest the. -.: ,,
penalty assessments at issue. Its first explanation is that MSHA changed its delivery metliod
·from: certified mail to Federal Express. According to the motions, "MSHA' s change in the
mailing procedure ofMSHA 1000-179 forms from certified mail to Federal Express foiled a
well-laid procedure for processing the forms, and certainly either caused or at least exacerbated
other potential mistakes." Mot. at 5-6. MSHA had sent a notice to operators explaining the new
mailing procedure, and stating that it would go into effect on September 17, 2007. S. Opp.
at 3 n.3. The proposed assessments in this case were received by Wellmore on June 24, 2008,
over nine months after this change. A company with the resources and skill to administer 24
separate mining operations presumably has the ability, within nine months, to adjust its internal
procedures to accommodate MSHA' s change in mailing methods.
The second explanation provided by the operator is that because of the change in
MSHA's delivery system, the assessments did not go to Wellmore's Engineering Department
secretary, as previously, but instead wer~ sent to the President's secretary, who would forward
them to the Engineering Department secretary. Because the President's secretary "did not realize

1

This fact was not indicated by Banner Blue in its motions. The Commission was
furnished evidence of
actual delivery date of the assessments by the Secretary in her response.

the

31 FMSHRC 1323

the urgency of the mailing," the operator claims that she did not open them immediately. Mot. at
2. Then, according to Banner Blue, when tlie Engineering Department secretary received the
assessments from the president's office and date-stamped them, she would have stamped the
forms as received on the day they came across her desk. Id.
Banner Blue's essential problem with this explanation is that the record shows that it did
not happen. The Secr_etary provided the Commission with Federal Express delivery records
showing that the two assessments issued on June 17, 2008 were signed for by "K. Hurley" on
June 24, 2008. The operator's motions contain affidavits from Kristy Hurley, who identifies
herself as the secretary for the Engineering Department. Thus, one must conclude that these
assessments never went to the President's secretary, but instead went to the Engineering
Department seeretary who normally processed the assessment form.
<

Banner Blue's third explanation is that the Engineering Department secretary had recently
· obtained a new date stamp and may have incorrectly stamped July 25 on the assessments.· Id. at
3, 5. However, Ms. Hurley's affidavit states that she obtained the new date stamp "in early J1Ule
of 2008." Hurley Aff. at 2. It is unclear whether the operator is asserting that she was datestamping July instead of June on the "foot-high stacks of mail that came in each day'' for
·approximately two weeks and that no one noticed, or whether she was date-stamping the mail
a.Ccurately:fotthose two weeks and only these assessm~ts .were sfatriped July 25 -instead of
June24~
· ··
Another reason why the third. explanation is not acceptable .is that, as the Secretary points
out, it is not an excuse for the Safety Director, Robert Litton, to rely on the date stamp on the
.assessmentfonnswhen the forms themselves clearly.indicated··the date of issuance as.June17,
·2008. A prudent safety director who :routinely processed numerous assessments would look at. ,· ·
the date of the assessment and - if it was markedly different from the date stamp (i.e., 38 days) ~
make some inquiries. I note that on all the assessments someone has written instructions within
an inch of the printed date of June 17, 2008.
In its motions, the operator acknowledges that it had·"a systemic problem in the entire

MSHA [penalty assessment form] processing system at the mine office." Mot. at 1. As noted
above, Wellmore was responsible for the operation of 24 mines, with a central mine management
office that processed "foot high stacks of mail that came in each day'' for all of these operatioBS.
Mot. at 2. The single secretary who was charged with processing this mail ''without ample
storage" was also responsible for managing the "forms, plans, and files for the 24 mines
controlled by the Wellmore division." Hurley Aff. at 1. In other words, this case is not about an
operator for whom MSHA's change in the mailing of the assessment forms to Federal Express
nine months earlier "foiled a well-laid procedure." Mot. at 5-6. It is not about the President's
secretary who "did not realize the urgency of the mailing." Id. at 2. It is not even about the
Engineering Department secretary having a wrong date on her stamp. It certainly is not "a series
of problems outside of any one person's control." Id. at 5. What this case involves is a company
which has one person processing a foot-high stack of mail, affecting 24 separate operations,
31 FMSHRC 1324

every day, in addition to her other responsibilities. This is not mistake or inadvertence. It is
about a large operator (or at least a large·controller) which set up a system that, at some point,
was bound to fail.
The Commission has previously emphasized that "[r]eliefunder Rule 60(b) should
generally not be accorded to an operator who creates and condones a system which predictably
will result in missed deadlines." Pinnacle Mining Co., 30 FMSHRC 1061, l 062 (Dec. 2008);
Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008). In the Pinnacle cases, we denied
relief from final orders when the operator "failed to create a mechanism to ensure that it would
routinely and effectively receive mail when it was delivered." 30 FMSHRC at 1062; 30
.FMSHRC at l 067.
Moreover, the federal courts have recognized, pursuant to Rule 60(b)(l) that :'where
internal procedural safeguards are missing, a defendant does not have a 'good reason' for failing
to respond to a complaint." Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 935-36 (11th Cir. 2007)
(collecting cases); see 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d
§ 2858 n.22 (3d ed.). As the 11th Circuit has noted, "[d]efault that is caused by the movant' s
failure to establish
procedural safeguards for determining thataction in respond to a
[complaint] is being taken does not constitute default through excusable neglect." Gibbs v. Air
·Canada, 810'F.2d' 1529, 1.537 (1 lth Cir~ 19&7); National Railr.oad Passenger Corp; v.-Patco. ·.
Transport, Inc., 128 Fed. Appx. 93, 95 (11th.Cir. 2005) (citation.:omitted). Similarly, the:7th: ..
Circuit has held that where a party's "internal-procedures simply broke do\vn", the party's failure ·
to answer a complaint was not excusable under Rule 60(b)(1 ). North Cent. RL Laborers' Dist..
Counci/.v. S.J. Groves & Sons Co., 842 F. 2d-164, 166-67 (7th Cir. 1988)(default n()texcusable .
where corporation's in-house counsel -staffof two. attorneys wa5 reduced to one because other
attorney was disabled, and remaining attotiiey overlooked the complaint in the resulting pressure,,
confusion, and increased workload).

minimum

An excellent analysis of the issue was set forth by Judge Haynsworth, concurring in Park
Corp. v. Lexington Insurance Co., 812 F.2d 894 (4th Cir. 1987). In this case, the court held that
the unexplained disappearance of the summons and complaint from the defendant's mail room
did not constitute grounds for relief from the default judgment under Rule 60(b)(l). Judge
Haynsworth wrote a separate concurring opinion because he thought that the majority's standard
was too stringent. The Judge focused on the issue of whether a party "maintains adequate·· ·· ·
internal controls designed to capture and record incoming legal papers and to get them to the
responsible official for an appropriate response," and stated that where such adequate internal
controls exist, "a district court should not deny Rule 60(b) relief simply because the party cannot
explain how the particular papers were lost." Id. at 898. Nevertheless, Judge Haynsworth
concurred with the majority because "Lexington offered no evidence of procedures in the mail
room by which the person signing the receipt for the registered or certified mail insures that the
papers received in the mail room are recorded on the log and transmitted to the appropriate legal
or claims department." Id. He concluded: "The best of systems sometimes suffers an occasional

31 FMSHRC 1325

breakdown. When it does, the neglect should be treated as excusable, but sloppy handling of
papers by which legal actions are commenced is.inexcusable." Id.
This case does not need to be remanded to a judge for a determination as to whether relief
should be granted. The operator's submissions reveal, as it admits, a "systemic problem." Mot.
at l. However, it is not, as the operator contends, "a series of problems outside of any one
person's control." Mot. at 5. Rather, it is a poorly-constructed, inadequately-staffed and
apparently unsupervised system which was, sooner or later, bound to fail. That does not
constitute "inadvertence," ''mistake," or "excusable neglect," and does not constitute a showing
of good cause for the operator's failure to timely respond to the penalty assessments.
Consequently, I would deny the motions.

Robert F. Cohen, Jr., Commissioner

31FMSHRC1326

Distribution:
Robert H. Beatty, Jr., Esq ..
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
· . Chief Administrative Law Judge Robert J. Lesnick
Federal Min~ Safety & Health Review Commission·
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 1327

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

WASHINGTON, DC 20001

December 10, 2009

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2010-3.0-M
A.C. No. 16~00970-194172

v.
MORTON SALT DMSION/MORTON
INTERNATIONAL, INC.

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissiontll's
ORbER
BY rim COMMISSION:

,·,·

This matter arises under theF¢eralMin~.Safety and Health Act of 1977, 30 q.s.c. · . ,·
§ 801 et seq. (2006) ("Mine Act"). On October 15, 2009, the Cotrnriission received from Morton
Salt Division/Morton Illternational, Inc. ("Morton") a motion by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section lOS(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section IOS(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
31FMSHRC1328

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits pennitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
On August 12, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000194172 to Morton, proposing penalties for a
number of citations and orders that had been issued to the operator during the previous two
months. Morton states_that it had earlier indicated its intent to contest one of the orders by
requesting and receiving a conference on it and three citations with the local MSHA office.
Morton explains that when the assessment was received, it mistakenly did not include the penalty
for the order among those penalties it was contesting, and instead paid that penalty amount along
with oth<?fs .it. was not contesting. The Secretary states that she does not oppose Morton's request
.,fo reopen the' assessment so that it can contest the penalty associated with the order.
..
.
Having reviewed Morton's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

t .•·;

..

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 1329

Distribution:
Donna Vetrano Pryor, Esq.
Patton Boggs LLP
1801 California Street, Suite 4900
Denver, CO 80202W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
f\1yraJames,Chief
Office of Civil Penalty Compliance
f\1SHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Les,:iick
. Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 ™SHRC 1330

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

December 10, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA2010-7
A.C. No. 44-06685-182175 A

v.
JOHN R. HURLEY

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE coMMlsSION:
This matter anses under ihe Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act''). ()n October 5, 2009, .the Commission received a motion by·
counsel seekiiig to reopen a penalty assessment against John R. Hurley under section· 110(c) of .
the Mine Act, 30 U.S.C. § 820(c), that may have become a final order of the Comniission ..
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under the Commission's Procedural Rules, an individual charged under section 1lO(c)
has 30 days following receipt of the proposed penalty assessment within which to notify the
Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.
On April 14, 2009, the Department of Labor's Mine Safety and Health Administration

("MSHA") issued Proposed Assessment No. 00182175 A to Hurley relating to Citation
No. 6629283, which had been issued on December 19, 2007. The record indicates that MSHA
sought to deliver the assessment by Federal Express, but Hurley never received the assessment,
despite his efforts to do so. Soon after Hurley received a delinquency notice from MSHA
regarding the assessment, his counsel made arrangements to obtain a copy of the assessment
from MSHA and immediately filed a notice of contest. The Secretary of Labor does not oppose
reopening in this instance.

31FMSHRC1331

The record indicates that Hurley never received proper notification of the proposed
penalty assessment as required under Cotilinission Procedural Rule 25. 1 Under the circumstances
of this case, we conclude that Hurley timely notified the Secretary that he wished to contest the
proposed penalty once he had such notice.
Because the proposed penalty assessment did not become not a final order of the
Commission, we wilLtreat the motion to reopen as moot. We remand this matter to the Chief
Administrative Law Judge for assignment to a judge. This case shall proceed pursuant to the
Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. Consistent with Rule
28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of this
ordei:. See 29 C.F.R. § 2700.28.

Robert F. Coh~ Jr., Commissioner

1

Commission Procedural Rule 25 states that the "Secretary, by certified mail, shall
notify the operator or any other person against whom a penalty is proposed of the violation
alleged, the amount of the proposed penalty assessment, and that such person shall have 30 days·
to notify the Secretary that he wishes to contest the proposed penalty assessment." 29 C.F.R.
§ 2700.25.
31FMSHRC1332

Distribution:
Robert H. Beatty, Jr., Esq.
Dinsmore & Shohl, LLP
21 S Don Knotts Blvd., Suite 310
Morgantown, WV 26..501
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
MyraJaIIles,Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
. Chief Adminisntive Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Conlinission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 1333

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

December 10, 2009
SECRETARY OFLAaOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-1099-M
A.C. No. 48-01295-175586

v.
SOLVAY CHEMICALS

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federat Mine Safefy.'and Health A.ct of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On JuIY 13, 2009, the Commission reeeived from Solvay..
Chemicals ("Solvay") a letter from the company's Safety Superintendent seeking to reopen a .
penalty assessment that had become a final order of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC ?82, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31 FMSHRC 1334

Solvay states that it checked the box on the original assessment form for Citation No.
6420279, but that it was not noted. The Secretary states that a payment dated February 26, 2009,
in the amount of $576, which paid all the proposed penalties except the proposed penalty that the
operator seeks to reopen, was timely received at the Department of Labor's Mine Safety and
Health Administration ("MSHA") Payment Processing Center in St. Louis, Missouri. However,
the Secretary states that MSHA has no record of receiving the penalty contest form at its Civil
Penalty Compliance OfEce in Arlington, Virginia. The Secretary does not oppose Solvay's
request to reopen the proposed penalty assessment.
Having reviewed Solvay' s request and the Secretary's response, in the interests ofjustice,
w~ hereby reopen this matter and remand it to the Chief Administrative Law Judge (or further.

'proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.

·
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.
·

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 1335

Distribution:
Rowdy Heiser
Safety Superintendent
Solvay Chemicals, Inc.
P.O. Box 117
Green River, WY 82935
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty C<_>mpliance
MSHA

U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N;W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 1335 ~

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

December 10, 2009

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA2010-144
A.C. No. 46-08581-188168

v.
BLUE HAVEN ENERGY, INC.

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C .
. § 801 et seq. (2006) (''Mine Act"). On October 27, 2009, the Commission received ftomlUue
Haven Energy, Inc. ("Blue Haveri") a motion to reopen a penalty assessment that had;become a
final order of the Commission pursuant to section I OS(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section l05(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR'). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31 FMSHRC 1336

On June 16, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000188168 to Blue Haven, proposing penalties for
eight citations that had been previously issued to the operator. According to its motion, Blue
Haven received the assessment, and its representative marked the form to indicate that it was
contesting all the proposed penalties. The notice of contest was apparently mailed on June 27,
2009, using certified mail. According to a copy of the on-line record of delivery submitted by
Blue Haven with its motion, the envelope that was mailed was received by MSHA two days later.
Nevertheless, the penalties were shown as delinquent on a separate, subsequent assessment,
which caused Blue Haven to promptly file its motion to reopen.
The Secretary of Labor states that, while she has no record of receiving the notice of
contest,
the information provided by Blue Haven, she will accept the copy of the notice.
contest included with Blue Haven's motion. The Secretary states in her letter dated
November 17, 2009, that she will file a penalty petition within 45 days ofthat date:

given

of.

Having reviewed Blue Haven's motion and the Secretary's response, we find the request
to reopen to be moot. This case shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F:R Part 2700, and, per her statements, the Secretary's penalty petition
shall be filed no later than January 4, 2010.

Robert F. Cohen, Jr., Commissioner

31FMSHRC1337

Distribution:
James F. Bowman
Blue Haven Energy, Inc.
P.0.Box99
Midway, WV 25878 W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd:, Room 2220 ·
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
. U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209.:.3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
. 60.l New 1~eyAyenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 1338

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

December 10, 2009
SECRETARY OF LABOR.
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2010-88-M
A.C. No. 23-02274-192621

v.
RAY COUNTY STONE
PRODUCERS, LLC

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
'

'

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq.' (2006) e'Mine Act,,). On October 28, 2009, the Commission received a request to
reopen a penalty assessment issued to Ray County Stone Producers, LLC ("Ray County.~) that
had become a final order of the CommissiOn pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a}.
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

31FMSHRC1339

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
On July 29, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000192621 to Ray County for three citations
MSHA had issued to the operator on June 2, 2009. The request to reopen states that the
employee who signed for the assessment when it was delivered never forwarded it for action by
the operator. Ray County wishes to reopen the assessment so that it can try to reach a settlement
of the penalties. The Secretary of Labor states that she does not oppose reopening in this
instance.
Having reviewed Ray County'.s request and the Secretary's response, we conclude that
Ray County has failed to provide a sUmciently detailed explanation for its failure to .timely
contest the proposed penalty assessment. Accordingly, we deny without prejudice Ray County's

31 FMSHRC 1340

request. See Eastern Assoc. Coal, LLC, 30 FMSHRC 392, 394 (May 2008); James Hamilton
·
Constr., 29 FMSHRC 569, 570 (July 2007). 1

Robert F. Cohen, Jr., Commissioner

1

"Without prejudice" means that Ray County may submit another request to reopen the
assessment so that it can contest the citations and penalty assessments. In the event that Ray
County chooses to refile its request to reopen, it should provide more specific information
regarding why it did not file a notice of contest on a timely basis, and when it learned of the
delinquency. Ray County should also specify which of the penalties it wishes to contest upon
reopening.

The request to reopen was sent by Earl Wilson, who describes himself as a "Safety

Consultant." Commission Procedural Rule 3 provides that, in order to practice before the
Commission, a person must either be an attorney or fall into one of the categories in Rule 3(b),
which include parties, representatives of miners, an "owner, partner, officer or employee" of
certain parties, or "[a]ny other person with the permission of the presiding judge or the
Commission." 29 C.F.R. § 2700.J(b). It is unclear whether Mr. Wilson satisfied the
requirements of Rule 3 when he filed the operator's request. We have determined that, despite
this, we will consider the merits of the operator's request in this instance. However, in any future
proceeding before the Commission, including further proceedings in this case, Mr. Wilson must
demonstrate to the Commission or presiding judge that he fits within one of the categories set
forth in Rule 3(b)(l)-(3) or seek permission to practice before the Commission or judge pursuant
to Rule 3(b)(4).
31FMSHRC1341

Distribution:
Earl Wilson
Safety Consultant
Wilson & Assoc.
10737 Miles St.
Rolla, MO 65401
W. Christian Schumann, Esq.
Office of the Solicitor
U.S:Department of Labor,
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Co~pliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington., YA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
·. Washington, D.C. 20001-2021

31 FMSHRC 1342

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

December 10, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2009-1983
A.C. No. 46-09131-188689

v.
M & P SERVICES, INC.

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
this matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. ,
§ 801 et seq. (2006) (''Mine Act"). On September 29, 2009, the Commission received from ..
M & P Services, ID.c. ("M & P'') a motion to reopen a penalty assessment that may have become
a fin~ ofder of the Commission pursuant to section 105(a) ofthe Mine Act, 30 U.S.C. § 815(a)..
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 1343

On June 18, 2009, the Department of Labor's Mine Safety and Health Administration
(''MSHA") issued Proposed Assessment No. 000188689 to M & P, proposing a penalty for a
citation that had been previously issued to the operator. According to its motion, M & P received
the assessment, and its representative marked the form to indicate that it was contesting the
proposed penalty. The notice of contest was apparently mailed on June 27, 2009, using certified
mail. According to a copy of the on-line record of delivery submitted by M & P with its motion,
the envelope that was l!!ailed was received by MSHA two days later. Nevertheless, M & P later
received a notice from MSHA, showing the penalty as delinquent, which caused M & P to
promptly file its motion to reopen.

The Secretary of Labor states that, while she has no record ~f receiving the notice of
conte8~ given the information provided by M & P, she will accept the copy of the notice of

contest included with Blue Haven's motion. On November 17, 2009, the Secretary filed a
petition for assessment of penalty in this case.
·
Having reviewed M & P's motion and th~ Secretary's response, we find the request to
reopen to be moot. This case shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F.R Part 2700.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 1344

Distribution:
James F. Bowman
M & P Services, Inc.
P.O.Box99
Midway, WV 25878 W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick .
. . Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 1345

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

WASHINGTON, DC 20001

December 14, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2007-293

v.
IO COAL COMPANY, INC.

DECISION
BY: Duffy, Young, and Cohen, Commissioners

In this civil penalty proceeding arising under the Federal Mine Safety and Health Act of:
1977, 30 U.S.C. § 801 et seq. (2006) (''Mine Acf' or "A~t"), Administrative Law Judge David F.
Barbour found a significant and substantial ("S&S") 1 violation pf30 C.F.R. § 75.220(a)(l)2 buf
did not find the violation to be a result of the operator's unwarrantable failure. 3 30 FMSHRC .
847, 868-69 (Aug. 2008) (ALJ). The Secretary petitioned the Commission toteview the·:
unwarrantable failure determination, and the Commission granted the petition. For the reasons
that follow, we vacate and remand the judge's unwarrantable failure determination.

1

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

30 C.F .R. § 75.220(a)(l }provides: ''Each mine operator shall develop and follow a
roof control plan, approved by the District Man.ager, that is suitable to the prevailing geological
·conditions, and the mining system to be used at the mine. Additional measures shall be taken to
protect persons if unusual hazards are encountered."
3

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

3lFMSHRC 1346

I.

Factual and Procedural Background
A.

Events of June 12 and 13. 2006

IO Coal Company ("IO") is the operator of the Europa Mine, an underground coal mine
located in West Virginia. 30 FMSHRC at 847-48; Gov't Ex. 11. IO is owned by Magnum Coal
Company. Tr. 265. On the morning of June 12, 2006, Inspector Jack Hatfield of the
Department of Labor's Mine Safety and Health Administration ("MSHA'') conducted an
inspection of the mine. 30 FMSHRC at 853. Hatfield examined the 005 Mechanized Mining , .
Unit ("MMU") section, which consists of seven mining entries and encompasses approximately ·
2100 linear feet. Tr. 147. Hatfield was accompanied at times by General Mine Foreman Fred
Thomas and at other times by Section Foreman Michael Jefferson. 30 FMSHRC at 853; Tr. 23334.
Hatfield first checked the 005 MMU section for imminent dangers. 30 FMSHRC at 853.
He testified that as he did, he noticed that the roof on the section contained surface cracks and
other kinds of cracks, as well as unsupported kettle bottoms.4 Id. The men walked up the;.
number 4 entry and then walked to the number 1·entry and across the face, at which point. :
Ha~~l~. tr,ave~cr.I back to Ate muµbe,r 7 ~ntry. 14:. (citing Tr.. 190). ~ the inspector was p()inting
out ¢onditions ·he considered unsafe, IO personnef illstille4. i«:lditional roof support.. Tr. 257; 339,
341. .
.
..

:·H~eld believed that IO was nof~omplyiitg vrith·its .roofcorttrol plan.. He issued a,·· . ,
sectic:m 104(d}(l) order,5 closing the sectioh.. 30 U.S.C. § 814(d)(l). ·1n the order, the inspector
alleged 'that the 005 MMU section contaitied adverse roof conditions in the form of "multiple
inadequately supported and unsupported surface cracks and kettle bottoms." Gov't Ex. 1.
4

Kettle bottoms are "basically ... petrified tree trunk[ s] surrounded by a thin layer of
coal." 30 FMSHRC at 851 n.4. The size of the kettle bottom depends on the size of the tree
trunk. Id. Kettle bottoms are circular, oval or oblong with coal encrusted around the
circumference. Tr. 37-38; R. Ex. 2. According to the Dictionary ofMining, Mineral, and
Related Terms, 297 (2d ed. 1997) (American Geological Institute), a kettle bottom "may drop out
of the roof of a mine without warning, sometimes causing serious injuries to miners." Eagle
Energy, Inc., 23 FMSHRC 1107, 1108 n.2 (Oct. 2001).
5

A Mine Act section 104(d)(l) order is issued during an inspection of a mine when
MSHA finds an unwarrantable failure violation within 90 days of a prior issuance of a citation to
that mine that was designated as both S&S and a result of unwarrantable failure. Under that
order, the operator must "cause all persons in the area affected by such violation ... to be
withdrawn from, and to be prohibited from entering, such area until an authorized representative
of the Secretary determines that such violation has been abated." 30 U.S.C. § 814(d)(l).
31 FMSHRC 1347

In Hatfield's opinion, the conditions violated the mine's roof control plan, Safety
Precaution No. 7, which stated:

When adverse roof conditions are encountered[,] such as
horsebacks, slicken-sided slip formations, clay veins, kettle
bottoms, surface cracks, mud streaks or similar types of conditions
in the mine roof, supplemental roof supports shall be installed in
addition to primary roof support as appropriate in the affected area.
Gov't Ex. f, 6..
~

Mine Foreman Thomas was ''veriupset." Tr. 205. He called the Mine Superintendent,
Tim Beckner, who met Inspector Hatfield as he was leaving. Tr. 363, 371-72. Beckner allegedly
asked Hatfield to go back to the section with him, but Hatfield declined. Tr. 372-73. The Mine
Superintendent called the Operations Manager and the Vice-President for Magnum Coal. Tr.
373-74. At about 5:00 p.nl. on June 12, Beckner, Thomas, Doug Williams (the operations
manager), and two mining engineers employed by Magnum Coal entered the 005 section. Tr~
268;,.70:. They examined all the entries' and crosscuts on the section without physically walkiJig
¢very one of them:· Tr. 269-70; 430.. · : ·
· · ··
·. ·
· ·
'.1'

::.·

''

On the. following morning, Inspeetor Hatfield arid MSHA Inspection Supervisor Terry
Price returned fo the mine. ~r. 77. IO was in the process of putting up additional roof support.
· Tr. 78. The. in5pectors determined that: the right side of the section could open to allow · .
production butthat entries Nos. I; 2, and 3 needed more support and were to remain closed.. Tr..·
79-80. The order was terminated later. in the day. Tr. 80.
B.

.Prior Citations

On May 1, 2006, Inspector Hatfield had issued Citation No. 7252337 to IO alleging a
s~ction 75.220(a)(l) violation because of adverse roof conditions on the 004 MMU section of the
Europa mine. 30 FMSHRC at 850. The conditions consisted of surface cracks, kettle bottoms,
and mud streaks at several locations. Id.; Gov't Ex. 2. This citation was issued to former Mine
Foreman Joe Glenn. Gov't Ex. 2. Fred Thomas was aware of its issuance. Tr. 209-10.

On May 17, Hatfield had issued Citation No. 7252378 for another section 75.220(a)(l)
violation for adverse roof conditions to Mine Foreman Thomas. 30 FMSHRC at 852; Gov't Ex.
3. The citation involved unsupported kettle bottoms and surface cracks on the 006 MMU
section. 30 FMSHRC at 852. After he issued the citation, Hatfield stated that he had reviewed
the roof control plan, particularly Safety Precaution No. 7, with Thomas. Id. The company
abated the condition by installing supplemental roof support. Id.

31 FMSHRC 1348

On June 5, Hatfield had issued Citation No. 7252411 to Thomas pursuant to section
75.220(a)(l) concerning roof conditions Ori the 006 MMU section when he detected a large kettle
bottom that was two feet in diameter and unsupported. Id.; Gov't Ex. 4. Hatfield testified that,
after issuing the citation, he discussed kettle bottoms with company officials and told them they
should pay more attention to the problem. 30 FMSHRC at 852; Tr. 47.
On June 8, Hatfield had issued Citation No. 7252417 alleging a violation of section

75.220(a)(l) to Thomas for another large unsupported kettle bottom in the 006 MMU section.
30 FMSHRC at 852; Gov't Ex. 5. The citation stated: "This MMU has had this condition
previously cited." Gov't Ex. 5. As with previous citations, Hatfield testified that he showed
management officials a copy of the roof control plan, including Safety Precaution No. 7. 30
FMSHRC at 852; Tr. 48.
C.

Judge's Decision

IO contested the June 12 order, and a hearing was held before Judge Barbour. The judge
found a violation of section 75.220(a){l) because he concluded that the Secretary had established
· the .existence of multiple Inadequately supported kettle bottoms on the section. 30 FMSHRC at
, 86S·-66; 6 He also determined that the violation was S&S. Id. at 867-68. He found that the
· violation was, serious because "if a miner were:struck by a falling kettle• bottom, serious injury. or .·
death would most 1.ikely result." Id. at 868.
·
, .
· However, the judge found that IO's lack of care was not.a result of unwarrantable failure.
· Id. He reasoned that riot all kettle bottoms .were inadeqilately sup}X>rted or unsupported. Id.· ·· . · . ·
Since some kettle bottoms in the cited area· were ad~uately supported, the judge· inferred that ..
''there was not a wide-spread and reckless . disregard of the requirements of the roof control plan.';·
Id. Additionally, the judge stated that the foreman '.'sitµply misjudged some of the kettle
bottoms" and that there was a genuine and good faith disagreement between the inspector and IO
personnel as to what constituted a kettle bottom. Id. He concluded that the violation was due to
the company's ordinary negligence. Id. at 869. In a footnote, the judge noted that the inspector's
fmding of unwarrantable failure and high negligence may have been based on "personal pique,"
citing the inspector's testimony that he found the violation due to high negligence '" [b]ecause
[the inspector] talked to the operator on several occasions about the roof control plan and it
seemed [he] wasn't getting anywhere with just writing a citation."' Id. at 869 n.18 (citing'ff;
76).

6

The judge found that the Secretary failed to meet her burden of proof with respect to
surface cracks. 30 FMSHRC at 865. The issue of surface cracks is not before us.
31 FMSHRC 1349

IL
Disposition
The Secretary argues that the judge's finding that the violation was not a result of
unwarrantable failure should be remanded to the judge for a proper application of the
unwarrantable failure analysis. PDR at 11; S. Reply Br. at 3-4. She argues that the judge erred in
five ways: (1) by ignoring the operator's history of previous section 75.220(a) violations, the
degree of danger posed by the violative condition, and the length of time the violative condition
existed; (2) by relying on the fact that ''not all" of the kettle bottoms were unsupported or
inadequately supported; (3) by relying on a finding that section foreman Jefferson "tried" to meet
the standard of care required of him; (4) by relying on a finding that there were "genuine and
good faith disagreements" between the inspector and the mine personnel as to what ~mnstituted a
kettle bottom; and (5) by speculating that the inspector may have acted out of "personal pique"
in designating the violation in question an unwarrantable failure. S. Reply Br. at 1.7

IO responds that the judge's unwarrantable failure fact-finding should be upheld because
record evidence supports the judge's determination that there were genuine and good faith
disagreements between the inspector and IO personnel as to what constituted a kettle bottom. IO
Br. at 12, 26-:29 ..: IO contends that, because ofits·good·.faithbeliefthat the roof·conditions in
question were not kettle bottoms, most of the unwarrantable Jailure fac~ors are not re~cvant. Id.
at 13, 22-24. Additionally, IO maintains that the four previous citations occurred in different ·
parts of the mine with different crews and;as a result, were not germane to the present
unwarrantable failure analysis. Id. at 19, 26. Finally; IO 'Submits that the judge did not err
because the record evidence supports .the conclusion :that ''p~r8onal pique" may have 1mproperly
played a part in the inspector's unwarrantable determination. 1d. at 32.- ·
·· ·
The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.
§ 814(d), and refers to more serious conduct by a:n operator in connection with a violation. In
Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at
2001. Unwarrantable failure is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or a "serious lack of reasonable care." Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); seealro Buck Creek"Coal,
Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure
test).
The Commission has recognized that whether conduct is "aggravated" in the context of
unwarrantable failure is determined by considering the facts and circumstances of each case to
detennine if any aggravating or mitigating circumstances exist. Aggravating factors include the
7

The Secretary designated her petition for discretionary review as her brief in this case.
Sec'y letter dated 10/22/08.
31FMSHRC1350

length of time that the violation has existed, the extent of the violative condition, whether the
operator has been placed on notice that greater efforts were necessary for compliance, the
operator's efforts in abating the violative condition, whether the violation was obvious or posed a
high degree of danger, and the operator's knowledge of the existence of the violation. See
Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) .("Consof'); Cyprus Emerald Res.
Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir.
1999); Midwest Mate.rial Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16
FMSHRC 192, 195(Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261(Aug.1992);
BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quin/and Coals, Inc., 10 ·.
FMSHRC 705, 709 (June 1988). All of the relevant facts and circumstances of each case must
be examined to determine if an actor's conduct is aggravated, or whether mitigating
circumstances exist. Consol, 22 FMSHRC at 353. The CommissiOn has made clear that it is
necessary for a judge to consider all relevant factors, rather than relying on one to nte exclusion
of others. Windsor Coal Co., 21 FMSHRC 997, 1001 (Sept. 1999); San Juan Coal Co., 29
FMSHRC 125, 129-36 (Mar. 2007) (remanding unwarrantable detennination for further analysis
and findings when judge failed to analyze all factors). While ail administrative law judge may
determine, in his discretion, that some factors are not relevant, or may determine that some
factors are much less important than other factors under the circumstances, all of the factors must
. be taken into.·consideration and at least noted bythejudge.
,·.

·. •· .Because the judge did not address all the elements of the. dnwarrantable failure analysis, .
we :Vacate his finding of no unwarrantable failure and remand for it':fuller discnssion that
identifies and incorporates all the relevant elements and explains how each element affects his
wwarrantable failure determination.. Commission Proced~al.Rule.·69(a) requires that a
Commissionjudge's decision "shall include all findings..offact:and.conclusions oflaw,.and the·
reasons or bases for them, on all the material issues. of fact, law or discretion presented by the
record." 29 C.F.R. § 2700.69(a). As the D.C. Circuit has emphasized, "[p]erhaps the most
essential purpose served by the requirement of an articulated decision is the facilitation of
judicial review." Harborlite Corp. v. ICC, 613 F.2d 1088, 1092 (D.C. Cir. 1979). Without
findings of fact and some justification for the conclusions reached by a judge, the Commission
cannot perform its review function effectively. Anaconda-Co., 3 FMSHRC 299, 299-300 (Feb.
1981). Thus, the Commission has held that a judge must analyze and weigh all probative record
evidence, make appropriate findings, and explain the reasons for his or her decision. Mid'···
Continent Res., Inc., 16 FMSHRC 1218, 1222 (June 1994).
We discuss each of the aggravating factors of the unwarrantable failure analysis in turn.
A.

Extent of the Violative Condition

The Commission has viewed the extent of a violative condition as an important element
in the unwarrantable failure analysis. See Peabody, 14 FMSHRC at 1261 (holding that five
accumulations of loose coal and coal dust were extensive). However, the judge here did not
expressly address the unwarrantable failure element of extensiveness. Additionally, his findings
31 FMSHRC 1351

relevant to the extensiveness of the kettle bottoms were somewhat conflicting. He found that
there were more than 15 unsupported or inadequately ·supported kettle bottoms (30 FMSHRC at
865-66; Gov't Ex. 9), a number that the Secretary submits is extensive. PDR at 9. Nonetheless,
the judge also found that IO performed some work to support kettle bottoms when he concluded
that "[n]ot all kettle bottoms in the cited area of the section were inadequately supported or
unsupported" and that there was not a "wide-spread" disregard of the requirement to provide
supplemental roof supp.art. 30 FMSHRC at 868.
Moreover, the judge does not appear to have considered all of the evidence pertaining to
extensiveness. He did not discuss Supervisory MSHA Inspector Terry Price's testimony that,
when he returned the following day, three entries, of the section still needed more support and
only four of the entries could be released back to production. Tt. 167-68. The final tbtee entries
were satisfactorily supported by the end of the day. Tr. 80. See Peabody, 14 FMSHRC at 1263
· (providing that extensiveness can be shown by a condition that requires significant abatement
efforts).
We conclude that the judge failed to rule on whether the number and distribution of
unsupported kettle bottoms meets the extensiveness factor of the unwarrantable failure analysis.
On remand, if the judge relies on the extensiveness factor as a mitigating measure against
. unwarrantable failure, he should explain how this factor weighs:againSt the other factors in the:
unwarrantable· failure analysis. San Juan:~.29· FMSHRGa:t·133 :(directing the judge to. make ·.r. ;·
:findings ·on the·unwarrantable. failure elements and to set forth his ratiorutle whether the element
supports an unwarrantable failure finding)..
· B.. · . The Length of Time That the Violative Condition Existed: ·. ·
., .

The Commission has emphasized .that duration of the violative condition js a necessary
element of the unwarrantable failure analysis. See Windsor Coal, 21 FMSHRC at 1001-04
(remanding for consideration of duration evidence of cited conditions). The judge did not make
a finding as to the duration of the conditions in which the kettle bottoms remained unsupported.
The Secretary asserts that the kettle bottoms remained unsupported for a period of five days,
exposing multiple shifts to unsupported roof danger. PDR at 8-9. IO does not dispute that the
conditions lasted for five days. IO Br. at 22. The record indicates that the roof conditions on the
005 MMU section were in existence for four or five days. Tr. 66-67, 250-251 (testimony that
entries had been in existence for four or five days). 8
Because the judge did not mention the duration of the roof conditions as a factor in his
analysis, we remand this question so that the judge may weigh the record evidence on duration
and determine if it qualifies as an aggravating factor in the unwarrantable failure analysis. We

8

IO did not preserve the pre-shift and on-shift examination reports completed in the days
prior to the issuance of the order in question. Tr. 253-54.
31 FMSHRC 1352

note that analysis of the duration factor may be affected by the judge's analysis, see infra, of
whether IO Coal's "good faith" beliefin the non-existence of kettle bottoms was reasonable.
C.

Whether the Operator Was Placed on Notice that Greater Efforts Were Necessary
for Compliance

Repeated similar violations may be relevant to an unwarrantable failure detennination to
the extent that they serve to put an operator on notice that greater efforts are necessary for
compliance with a standard. Amax Coal Co., 19 FMSHRC 846, 851 (May 1997) (citation
omitted); see also Consolidation Coal Co., 23 FMSHRC 588,595 (June 2001) ("a high number of
past violations of section 75.400 serve to place an operator on notice that it has a recurring safety
· problem in need of correction.") (citations omitted). The purpose of evaluating the number of
past violations is to detennine the degree to which those violations have '"engendei:ed in the
operator a heightened awareness of a serious ... problem: m San Juan, 29 FMSHRC at 131
(citing Mid-Continent Res., Inc., 16 FMSHRC 1226, 1232 (June 1994)). The Commission has
also recognized that "'past discussions with MSHA'" about a problem "'serve to put an operator
on heightened scrutiny that it must increase its efforts to comply with the standard."' San Juan,
29 FMSHRC at 131 (quotillg Consolidation Coal, 23 FMSHRC at 595).
Jn making:·his unwarrantable detenninatiOn, the judge·d.id ·not consider the previous four ..
, citatfons:-fur poor'roof conditions, especially kettle bottom8, issued·. to the Europa Mine. Gov~t
Bxs. 2, 3, 4, 5. Additionally, the inspeetor testified that1.ifollowing theissuance of three of the~ .
citations, he discussed kettle bottoms With company officials and told them they should pay more
attention to the problem. 30 FMSHRC at 852; Tr. 47-:48. The order atissue states: ·''This mine
has been put on heightened alert by the issuance of $.i'milar cita.tions regarding the supporting of
surface cracks and kettle bottoms and discussions with mine management regarding the
supporting of these roof conditions." Gov't Ex; L

Inspector Hatfield testified that, when he spoke with management regarding the roof
support problems contained in the earlier citations, "there was no discussion at all" that the
condition in question was ''not a kettle bottom." Tr. 84 (stating that it ''never even became a
point, that [the inspector] misidentified [kettle bottoms] at any time"). Foreman Thomas denied
that the roof control plan was discussed following the citations. 30 FMSHRC at 852 n.6; Tr. 251. .
However, the operator's brief appears to accept as a fact that such discussions occurred. IO Br. at ·· •!
18-19, 26 n.17. The judge did not resolve the conflict in testimony with regard to the extent of the
operator's prior notice based on discussions with the inspector.
Nor did the judge's unwarrantable failure analysis factor in the four previous citations for
unsupported kettle bottoms in the six week period prior to the issuance of the section 104(d)(l)
·order on June 12, 2006. These citations are highly relevant to the issue of whether the operator
was on notice that greater efforts at compliance were necessary. See Eagle Energy Inc., 23
FMSHRC 829, 838-39 (Aug. 2001) (directing the judge to consider the operator's prior citations
as an aggravating factor).
31 FMSHRC 1353

Moreover, the operator's argument that the prior citations for unsupported kettle bottoms do
not constitute conclusive evidence of the factual existente of unsupported kettle bottoms in the
past is contrary to law. The legal principle of :finality holds that an· uncontested citation is akin to
an unappealed judgment. See Old Ben Coal Co., 7 FMSHRC 205, 209 (Feb. 1985) (an operator
cannot deny the fact of violation and at the same time pay a civil penalty; paid penalties that have
become final orders conclusively reflect violations ofthe Act). In this case, IO could have
contested the assessments in the prior citations, thereby putting at issue the existence of kettle
bottoms on four occasions in the six weeks before June 12, 2006. It chose not to do so, even after
the issuance of the section 104(d)(l) order on June 12 implicitly raised the issue of prior
violations. Hence, the fact that unsupported kettle bottoms existed as described in the four prior
citations can not now be questioned.
· Nor are we persuaded by IO's argument that the four prior citations do not sezye as
adequate prior notice because they involved different crews on ·~far removed" sections rather than
the one at issue, here. IO Br. at 18. IO overlooks a critical fact: three of the four citations were
issued to the same mine foreman, Fred Thomas, who is involved here, and Thomas was well
aware of the other citation issued to the previous mine foreman. Thomas had the responsibility to
raise safety awareness on aff the mine sections regarding kettle bottoms and other roof conditions.
We reject as untenable and contrary to the Mine Act IO's suggestion that until such time as a
~Violationis found ona·particular section, the·section is.immunefrom knowledge:·ofa safety·
··problem elsewhere in the mine. The Commission has rejected, the atgument-that only past
violations involving the.same;regulation and.'.occurring m:the same·area within a continuilig time
:frame may be properly considered when determining whether a violation is unwarrantable.
Peabody Coal Co., 14 FMSHRC at 1263; Enlow Fork Mining .Co;~ 19 FMSHRC 5; ll-,12·.(Jan;
·J997'} ~Finally; we note that general mine management :reta.ins.resp~ibilityfor sa(ety and health·
compliance. Eastern Assoc. Coal Corp., 13 FMSHRC'l 78" 187; (Feb; 1991) (actual knowledge.
not necessary element to establish aggravated conduct for an unwarrantable failure :finding);
Accordingly, under Commission case law, past violations covering a different area than the one
cited may serve to provide an operator with sufficient awareness of a problem. San Juan, 29
FMSHRC at 131-32.
We also reject the operator's argument that the four prior citations are an insufficient basis
for a finding of unwarrantable failure because all of the previous citations had included a finding
of only moderate negligence. IO Br. at 17. Inspector Hatfield engaged inarpreeess of progressive
enforcement. The first four times he observed unsupported kettle bottoms, he issued section
104(a) citations and found only moderate negligence. On the fifth occasion, because the operator
continued to engage in the same unsafe conduct, Inspector Hatfield made a :finding of
unwarrantable failure and issued a section 104(d)(l) closure order. This appears to be a measured
response to the operator's persistent non-compliance with the terms of its roof control plan.
Moreover, the Commission has .recognized that under its precedent, prior citations, even if not for
unwarrantable failure, put operators on notice that greater compliance is necessary. Eagle Energy,
23 FMSHRC at 838.

31FMSHRC1354

We note that the judge in a footnote stated: "Hatfield's. finding of unwarrantable failure
and high negligence may have been based on personal pique more than on an analysis of the
standard of care IO and its employees were required to meet. When asked why [Hatfield] found
the violation was due to IO's 'high' negligence, he responded, 'Because I talked to the operator on
several occasions about the roof control plan and it seemed I wasn't getting anywhere with just
writing a citation."' 30 FMSHRC at 869 n.18 (citing Tr~ 76). We question the judge's statement
that the fuspector may_have acted out of "personal pique." The Mine Act contemplates a
progressive enforcement scheme whereby if an operator incurs repeated similar serious violations
and fails to remedy the situation, MSHA appropriately is to increase the severity of the
enforcement action. See 30 U.S.C. § 814(d) & (e). This scheme is intended to induce meaningful
compliance by operators with the safety and health requirements of the law. As statedbythe
Court of Appeals for the District of Columbia in Coal Employment Project v. Dole, quoting the
legislative history: "Thus, we understand the [Senate Human Resources] Committe!' to say that an
unwarrantable failure citation is a remedy available to an inspector confronting a non-technical
violation that favolves unwarrantable behavior, such as the operator's deliberate or repetitious
violation of a health or safety standard." 889 F.2d 1127, 1133-34 (D.C. Cir. 1989) (emphasis
added).
Based on the record, we conclude that IO Coal was on notice that greater efforts at
. complianee with its roofcontrol plan were needed.: .American Mines Servs;, Inc. . 1S;·FMSHRGJ:,
·;J 83{)l·i 834 (Sept. 1993) (concluding.that· the evidence. pr¢sented•·on ,fhe. reeotd.supported no other
·conclusio1rand remand Was unnecessary). Because.the operator'has maintained that it disagreed
utgood·faith with the insp~tor~s characterization of kettle bottoms, this is a critical factor.in.the
unwarrantable.failure detennination in this case. On remand, the judge should weigh this factor .
of notice together with the other factors in his ·unwarrantable failure. analysis. .
. ;".; ·!

. ';

D.

. : .:.. .·~ .

Whether the Violation Posed a High Degree of Danger

The Commission has relied upon the high degree of danger posed by a violation to support
an unwarrantable failure finding. See BethEnergy Mines, Inc., 14 FMSHRC at 1243-44 (finding
unwarrantable failure where unsaddled beams "presented a danger'' to miners entering the area);
Wa"en Steen Constr., Inc., 14 FMSHRC 1125, 1129(July1992) (finding violation to be
aggravated and unwarrantable based upon "common knowledge that power lines are hazardous,
and ... that precautions are required when working near power lines with heavy equipm~'); · ··
Quin/and Coals, 10 FMSHRC at 709 (finding unwarrantable failure where roof conditions were
"highly dangerous").
The judge found that the violation was S&S and of serious gravity. 30 FMSHRC at 86768. The judge held that the "inadequately supported and unsupported kettle bottoms posed
discrete safety hazards" because kettle bottoms could slip from the roof without warning,
sometimes causing serious injuries to miners. Id. at 867 & n.17. The judge emphasized that eight
miners worked and traveled under the cited kettle bottoms and that the inadequately supported and

31FMSHRC1355

unsupported kettle bottoms could fall at any time, resulting in serious injury or death. Id. at 867-68.
Although the judge considered dangerousness in considering whether IO violated section
75.220(a)(l) and whether that violation was S&S, the judge did not relate any of those findings to
his unwarrantable failure analysis. In San Juan, 29 FMSHRC at 133, the Commission determined
that the judge erred by failing to make necessary findings and conclusions as to whether evidence
of the danger posed by the violation demonstrated that the operator's conduct was aggravated, and
how this factor weighed against other factors in his analysis. We likewise remand the danger
factor for further evaluation.
E.

The Operator's Effort in Abating the Violative Condition

An operator's effort in abating the violative condition is one of the factors est!lhlished by
the Commission as determinative of whether a violation is unwarrantable. ·Where an operator has
been placed on notice of a problem, the level of priority that the operator places on the abatement
of the problem is relevant Enlow Fork, 19 FMSHRC at 17. Previous repeated violations and
warnings from MSHA should place on operator on "heightened alert" that more is needed to
rectify the problem. New Warwick Mining Co., 18·FMSHRC 1568,·1574 (Sept. 1996). The focus
«m the operator's abatement efforts is on those efforts made prior to the citation or order. Id.
· - .,_. :;·Tuerecord:evidence appears to·-demonstrate that;prior to .theinspectionatissue IO did not
·take any additional: steps to remedy its roof conditions in~response to the previous four citations. . ·
Tr. 252-53. Mine Foreman Thomas testified:that, following theissu:ance of the three prior ...
violations having to do with Safety Precaution No. 7 of the RoofControl Plan, he did not take any.
special steps;· such as a safety meeting with the section foremen. relating to roof conditions. Tr.. ·· ..
253.
The judge failed to consider IO's apparent lack of remedial actions to improve its roof
safety following the four prior citations. He also made no findings as to the extent of the
operator's abatement efforts and how that factor related to his unwarrantable failure analysis. See
San Juan, 29 FMSHRC at 136 (remanding the question of whether the operator's prior actions in
abating the violative condition supports an unwarrantable failure finding). Accordingly, we
remand for evaluation of the abatement factor. We note that analysis of the abatement factor will
be affected by the judge's analysis, see infra, of whether IO Coal's "good faith'rbeliefin the-nonexistence of kettle bottoms was reasonable.
F.

The Operator's Knowledge of the Existence of the Violation and whether the
Violation was Obvious; the Reasonableness of the Operator's "Good Faith
Disagreement" with MSHA as to What Constitutes a Kettle Bottom

An operator's knowledge of the existence of a violation and whether the violation is
obvious are important elements of an unwarrantable failure analysis. Moreover, it is well settled
that an operator's knowledge may be established, and a finding of unwarrantable failure

31 FMSHRC 1356

..

·

supported, where an operator reasonably should have known of a violative condition. See Emery,
9 FMSHRC at 2002-04; Drummond Co., Inc., 13 FMSHRC 1362, 1367-68 (Sept. 1991), quoting
Eastern Assoc. Coal Corp., 13 FMSHRC 178, 187 (Feb. 1991)("Emery makes clear that
unwarrantable failure my stem from what an operator 'had reason to know' or 'should have
known"').
In this case, IO_contends that it had· a good faith disagreement with Inspector Hatfield
regarding what was, and what was not, a kettle bottom. IO Br. at 4-14; Tr. 199-201, 309-11, 346,
377. The issue of the operator's "good faith disagreement" with Inspector Hatfield as to certain
roof formations being kettle bottoms is inextricably intertwined with the issues of the operator's
.knowledge of the existence of the violation and the obviousness of the violation. . It also affects
the issues of duration and efforts at abateinent.

-

In weighing the evidence, thejudge found that section foreman Jefferson "simply
misjudged some of the kettle bottoms" and that there were "genuine and good faith disagreements
between the inspector and IO personnel as to what constituted a kettle bottom." 30 FMSHRC at
868-69. The judge's finding of "genuine" disagreements is supported by substantial evidence. 9
Regarding the disagreements being in "good faith," the judge, after describing the witnesses'
conflicting testimony about the existence of unsupported kettle bottoms, found that "[n]one of the
witnesses were, in my opinion, disingenuous/' Id. at 866. We .find no compelling· evidence in the·:
record ·to:take:the:extraordinary .step of overturning the judge's credibility:determiriatiQn in this· ' .
: "'
. ,. ·.:. · · '
· :. .
.regard. 10 · · ·'
However, a :finding of a subjective ~'good faith disagreement" does not end: the inquiry;
The trier..of-faet must determine whether the operator's belief was objectively reasonable under
the circumstances. In Kellys Creek Resources, Inc., 19 FMSHRC 457 (Mar. 1997), the

. \

9

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
10

A judge's credibility determinations are entitled to great weight and may not be
overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541(Sept.1992);
Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). Generally, the Commission will
uphold a judge's credibility determination unless compelling evidence supporting reversal is
offered. See Bjes v. Consolidation Coal Co., 6 FMSHRC 1411, 1418(June1984) (refusing to
take the "exceptional step" of overturning judge's findings based on credibility resolutions); see
also Metric Constructors, Inc., 6 FMSHRC 226, 232 (Feb. 1984), aff'd 766 F.2d 469 (1 lth Cir.
1985) (stating that when the judge's finding rests upon a credibility determination, the
Commission will not substitute its judgment for that of the judge absent clear indication of error).
31FMSHRC1357

Commission held that ''if an operator acted on the good-faith belief that its cited conduct was
actually in compliance with applicable fa\\< and that belief was objectively reasonable under the
circumstances, the operator's conduct will not be considered to be the result of unwarrantable
failure when it is later determined that the operator's belief was in error." Id. at 463 (citing Cyprus
Plateau Mining Corp., 16 FMSHRC 1610, 1615-16 (Aug. 1994)) (emphasis added). In Cyprus,
the Commission overturned the judge's finding that the foreman's good faith belief precluded an
unwarrantable failure determination because the judge failed to consider the ''reasonableness" of
the foreman's belief. 16 FMSHRC at 1615. In Kellys Creek, 19 FMSHRC at 463-65, the
Commission reversed the judge's determination that a good faith belief precluded unwarrantable
failure because the Commission found that the belief was not reasonable.. See also Wyoming Fuel
Co., 16 FMSHRC 1618, 1628-29 (Aug. 1994) (holding that an operator's conduct was not ..·.
aggravated where judge implicitly found that operator's good faith belief that it was in compliance .
with regulations was reasonable under the circumstances), ajf'd, 81F.3d173 (10th C!r.1996)
(unpublished table decision).
In this case, the judge did not determine whether the operator's "genuine and good faith
disagreements" with the MSHA inspector as to what constituted a kettle bottom were objectively
reasonable under the circumstances. For example, the judge did not harmonize his finding of
·"good faith disagreements" with his earlier finding that "[i]f, in.fact, Hatfield misidentified kettle·~
·bottoms, it-is reasonable to; expect IO personnel to have protested long and loudj then and'.:there: ,
They.diff not: [Tt~ 84~ 114] . A clOse reading of the testimpny reveals tbatit was after. he-issued the ·
order that they began to argue he misidentified the formations}' 30 FMSHRC·at 866.· ·. · ,, ,
!

•:

· '.• ·Additionally, the judge did not pose the question of whether IO's conduct was
.,
·''reasonable'.'undet the· circumstances after it had received four.MSHA citations on this·-very,issue..
In Consolidation·Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996), the Commission atlinned the ·.
judge's finding of no reasonable, good faith belief where the operator failed to inquire into
MSHA's enforcement position. Analogously, IO apparently did not seek MSHA's guidance on its
decision not to support the alleged kettle bottom formations even though it had received a number
of citations.
Most significantly, the judge's finding that section foreman Jefferson ''was not indifferent
to his responsibilities" for roof control on the section and "tried, but failed to meet the standard of
care required of him," 30 FMSHRC at 868, does not dispose of the issue of reasonableness.
Jefferson's supervisor was Thomas, the mine foreman, and Thomas was certainly aware of the
four previous citations for unsupported kettle bottoms in the six weeks before this order was
issued. Thomas had received the last three of these citations directly from Hatfield, and was
aware of the first one being given to his predecessor as mine foreman. Hatfield testified that in
issuing each of these previous violations, he had talked with Thomas or his predecessor about
what he classified as a kettle bottom, and the need to comply with Safety Precaution No. 7 of the
roof control plan. Tr. 37, 39-40, 45, 48, 52. His testimony is corroborated by the fact that the
section 104(d)(l) order issued in this case on June 12, 2006 states: "This mine has been put on
heightened alert by the issuance of similar citations regarding the supporting of surface cracks and
31 FMSHRC 1358

kettle bottoms and discussions with mine management regarding the supporting of these roof
conditions." Gov. Ex. 1. Although Thomas denied talking.with Hatfield about the roof control
plan after receiving the previous citations, Tr. 251, it is undisputed that IO Coal neither contested
the previous citations for unsupported kettle bottoms nor inquired ofMSHA supervisory
personnel regarding Hatfield's understanding of what constituted a kettle bottom.
The conduct o[section foreman Jefferson in this case is thus much less significant than the
conduct of mine foreman Thomas in determining whether the "good faith disagreement" with
MSHA was reasonable under the circumstances. Thomas acknowledged that after receiving the
three previous citations, he did not hold a safety meeting with any of the section foremen to
discuss roof control. Tr. 253. Indeed, the record does not indicate that Thomas took any action
whatever to acheive greater compliance with the roof control pla11 dU:ring the period he was mine
foreman prior to the June 12, 2006 order. In this context, we note our statement in Consolidation
Coal Co., 14 FMSHRC 956, 970 (June 1992): "Whatever difficulties may be presented by the
Secretary's interpretation of the Act and regulations, no operator is free to take the law into its
own hands by deciding for itself what the law means and how it can best be applied."
Finally, a thorough review of all the facts and circumstances bearing on the unwarrantable
failure~issue should consider that IO did not preserve the pre-shift and·on-shift examination.

reports ·completed ;in the days priorto . the issuance of the order in question. .These reports W.oul<f-:.
likely have shed some light on how much the operator knew' aboµt the kettle bottoms.befo~""the. ·;
Order,Was issued. :Tr. 253;..54. See Windsor Coal, 21FMSHRC<at1004 (preshiftbooks reflecting.
coal accumulations along the belt were relevant to determination of whether operator was on·
notice of need for greater efforts at compliance); Peabody Coal, J4. FMSHRC at1262{same). · ·
. The judge did not discuss or draw any conclusions with respect to these missing reports. 1.1 •.We,. .
:direct the judge to. address the missing examination reports in ·his evaluation of knowledgeiand' i; ...
weigh this fu his unwarrantable failure analysis.

Hence, on remand, the judge should consider the issues of the Operator's knowledge of the
existence of the violation and whether the violation was obvious. The principle question in these
determinations is whether the operator's "good faith disagreements" with Inspector Hatfield as to
what constituted a kettle bottom were objectively reasonable under the circumstances. If the.
operator's disagreements with the inspector were reasonable, then it may be concluded that the
operator did not have knowledge of the existence of the violation and-that the violation was not
obvious. However, if the disagreements were not reasonable, in light of the.judge's finding that
11

It is well-recognized that if a party has control over a writing or other type of evidence,

which is relevant to an issue, and fails to produce the evidence, an inference can be drawn that
the evidence would be adverse to the party. McCormick on Evidence provides that "[w]hen it
would be natural under the circumstances for a party to . . . produce documents or other objects
in his or her possession as evidence and the party fails to do so, tradition has allowed the·
adversary to use this failure as the basis for invoking an adverse inference." 2 McCormick on
Evid. § 264 (6th ed. 2006) at 220-21.
31 FMSHRC 1359

". ,

the disagreements were not articulated until after the withdrawal order was issued, together with
the fact of IO Coal's response (or lack thereof) to the issuance of four previous citations for the
same type of violations of the roof control plan, then it may be concluded that the operator did
have knowledge of the violation.
Ultimately, the judge should bear in mind the D.C. Circuit's characterization of
Congressional intent: _
Congress was particularly concerned about curbing repeat offenders
among mine operators. Reporting on the bill that became the Mine
Act, the Senate Committee on Human Resources stated:
In evaluating the history of the operator's violations
in assessing penalties.it is the.intent of the
Committee that repeated violations of the same
standard, particularly within a matter of a.few
inspections, should result in the substantial increase
in the- amount of the penalty to be assessed.

Goal Employment Project v. Dole, 889R 2d-at 1132.

31 FMSHRC 1360

III.

Conclusion
For the reasons discussed above, we vacate the judge's detemriruition that IO's violation of
section 75.220(a)(l) was not caused by its unwarrantable failure. We remand for reconsideration
of the record consistent with this decision, and for reassessment of the civil penalty, if
appropriate. 12

Robert F. Cohen, Jr., Commissioner

12

Our dissenting colleague would have the Commission reverse the judge's

determination and hold, as a matter of law, that the evidence compels a finding that the violation
was due to the operator's unwarrantable failure. While we agree that the evidence, particularly
the four previous violations of section 75.220(a)(l) because of unsupported kettle bottoms,
strongly suggests a finding of unwarrantable failure, it is the function of the judge, not the
Commission, to weigh all the relevant evidence and make a determination on this issue. Martin
County Coal Corp., 28 FMSHRC 247, 257 (May 2006).
31FMSHRC1361

Chairman Jordan, dissenting:
Over the course of six weeks, IO Coal received four citations because it failed to install
supplemental roof support in the face of adverse conditions. Three of the four citations were
issued to the same individual, general mine foreman, Fred Thomas, after MSHA inspector
Hatfield observed unsupported kettle bottoms in the mine. 1 Tr. 33-49. According to the
inspector, after issuing e.ach citation he discussed the hazards posed by the kettle bottoms with
mine officials and urged them to take precautions. Tr. 45-48.2 Nevertheless, four days after he
issued his fourth citation, Inspector Hatfield returned to the mine and observed at least fifteen
unsupported kettle bottoms, a situation which prompted the inspector to issue the section
104(d)(l) unwarrantable failure order under review. Tr. 53, 56-59, 68; Gov't Ex. l.
The judge below upheld the violation but eliminated the unwarrantable failur~ designation.
My colleagues have concluded that the judge's unwarrantable failure determination must be
vacated and that issue remanded for reconsideration. Because I find the operator's ongoing failure
to support kettle bottoms in the mine, despite repeated warnings from MSHA, to constitute
precisely the type of behavior that Congress intended to address in section 104(d)(l) of the Mine
Act, I would reverse the judge and find the subject violation to have been properly designated as
resulting from the operator's unwarrantable failure to comply with its roof control plan.
Unwarrantable failure is demonstrated by "aggravated .conduct;- constituting more than
ordinary negligence," characterized by "reckless disregard," ·''intentional misconduct,1~
"Indifference," or a "serious lack of reasonable care.". Emery Mining Corp., 9 FMSHR.C 1997,
2001, 2003-04 (Dec. 1987). These terms aptly describe the operator's conduct in this case..
Although the four previous citations clearly put IO on notice .it was failing to address .the ·
hazardous conditions posed by the kettle bottoms in its mine, the operator took no meaningful
steps to rectify the situation until the subject withdrawal order was issued. If this behavior does
not constitute unwarrantable failure, I'm not sure what does. As Congress explained when it
enacted the Mine Act, ''the unwarranted failure order recognizes that the law should not tolerate
miners continuing to work in the face of hazards resulting from conditions violative of the Act
which the operator knew of or should have known of and had not corrected." S. Rep. No. 95-181,
at 31, (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative
History ofthe Federal Mine Safety and Health Act of1977, at 619 (1978).
The Commission has recognized that whether conduct results from an operator's
unwarrantable failure is determined by considering the facts and circumstances of each case to
determine if any aggravating or mitigating circumstances exist. Aggravating factors include the
length of time that the violation has existed, the extent of the violative condition, whether the

1

The material constituting a kettle bottom is not part of the coal bed and· can slip from the
roof at anytime unless adequate support is provided. 30 FMSHRC 847, 867 (Aug. 2008).
2

The operator appears to concede that these conversations took place. IO Br. at 18-19.

31 FMSHRC 1362

I

·:

•

operator has been placed on notice that greater efforts were necessary for compliance, the
operator's efforts in abating the violative cbndition, whether the violation was obvious or posed a
high degree of danger, and the operator's knowledge of the existence of the violation. See
Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) ("Consof'); Cyprus Emerald Res.
Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir. 1999);
Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC
192, 195 (Feb. 1994);,feabody Coa/Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy
Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quin/and Coals, Inc., 10 FMSHRC 705,
709 (June 1988). All of the relevant facts and circumstances of each case must be examined to
detennine if an actor's conduct is aggravated, or whether mitigating circumstances exist. Consol,
22 FMSHRC at 353.
My colleagues concede that the operator was on notice that greater efforts at compliance
with its roof control plan were needed and they acknowledge that "[t]he record evidence appears
to demonstrate that prior to the inspection at issue IO did not take any additional steps fo remedy
its roof conditions in response to the previous four citations." Slip op. at 11, citing Tr. 252-53. In
addition, they agree that the judge correctly found the violation to be significant and substantial,
and thus of high gravity.3 With regard to the duration of the violation, it is undisputed that the
cited condition lasted for at least four or five day8. Tr. 66-67, 250-51; IO Br. at 22. In terms of .,
the e:x;tensiveness of the condition, the judge found there were more than 15 unsupported or
'inadequately supported kettle bottoms. 30·FMSHRC at 865~66; Gov.'t Ex. 9.4. Given tliese ,.
circumstances - wherein the operator was on notice of an extensive· and dangerous violation ·of
long duration that MSHA had cited it for repeatedly, and which IO did not take any significant
steps to address - the record can only support one conclusion: that the violation was caused by the
operator's unwarrantable failure to comply.

3

Although the majority acknowledges the judge's finding that "eight miners worked and
traveled under the cited kettle bottoms and that the inadequately supported ·and unsupported
kettle bottoms could fall at any time, resulting in serious injury or death," slip op. at 10-11, citing
30 FMSHRC at 867-68, they nonetheless remand the case to the judge for consideration of the
"danger factor." Slip op. at 11. In light of his significant and substantial finding, I do not see
how the judge could fail to find the dangerous nature of the cited condition to be an aggravating
factor. The inspector testified that the cited roof conditions presented the hazard of falling roof
material, Tr. 75-76, 158-59, that should a roof fall occur, injuries would reasonably be expected
to be permanently disabling, Tr. 47, 75, and that a roof fall was reasonably likely to occur due to
the lack of supplemental support for numerous adverse roof conditions. Tr. 75-76.
4

The inspector testified that the unsupported kettle bottoms were obvious and extensive.
Tr. 52. Moreover, as my colleagues have noted, the extensiveness of the violation can be shown
by the significant abatement effort that was necessary before the order was terminated. Slip op.
at 7.
31 FMSHRC 1363

My colleagues' would have the jud,ge focus on the reasonableness of the operator's
disagreement with MSHA regarding whether or not certam roof conditions at the mine constituted
kettle bottoms. Slip op. at 11-15. However, after receiving four prior citations for unsupported
kettle bottoms, the operator's position was patently unreasonable. By the fifth time IO was cited,
MSHA's view on the question was eminently clear. It was unreasonable for IO to stubbornly
adhere to its position, given MSHA's vigorous and consistent enforcement actions. As we
emphasized in Consolidgtion Coal Co., 14 FMSHRC 956, 970 (June 1992), a high degree of
negligence is appropriately attributed to an operator who does not comply with MSHA's
interpretation after MSHA has made its view evident:
Whatever difficulties may be presented by the Secretary's
interpretation of the Act and regulations, no operator is free to take
the law into its own hands by deciding for itself what the law means .
and how it can best be applied.
(citation and internal quotation marks omitted).
Although IO now contends that the inspector misidentified formations which were not; in
fact, kettle bottoms, it is apparent that the operatorwas simply c<>nducting "business as usual," as
it made no ineaningful inquiries to MSHA.at the relevant time. abouHts alleged disagreemenh>ter
:what conStituted ·a kettle bottom. Its argument thanhe:cited conditi~rt was: simply the·result of:a., · ..
"good faith disagreement" or "difference.in judgment', would have more credence if mine .
. officials had bothered to speak With MSHA about this question before the mine closure. ··Instead,
they failed to challenge any ofthe previous citations and did not bring up the dispute when
accompanying the MSHA inspector. Tr. .114.
Although my colleagues correctly fault the judge for failing to address all of the elements .
of the unwarrantable failure analysis, slip op. at 6, their remedy - remanding the case "for a fuller
discussion that identifies and incorporates all the relevant elements and explains how each
element affects his unwarrantable failure determination," - id., is unnecessary. Given the findings
by the judge, findings with which the majority does not disagree, and the overwhelming
'"evidence [of] a callous disregard for the hazards,"' Rock ofAges Corp., 20 FMSHRC 106, 115
(Feb.1998) (citation omitted), demonstrated by IO's persistent failure to properly support the roof
even after it was repeatedly cited by MSHA, any additional analysis would be superfluous.
Although the factors articulated by the Commission in prior unwarrantable failure cases have
created invaluable guideposts, see, e.g., Mullins & Sons Coal, 16 FMSHRC at 195-96, at this
point in the litigation the judge should not be obliged to produce a mechanistic litany on every
factor.
The Commission has not hesitated to reverse a finding of no unwarrantable failure when
faced with compelling evidence to the contrary. For example, in Jim Walter Resources, Inc., 19
FMSHRC 480 (Mar. 1997), we reversed the judge's conclusion that three coal accumulation ·
violations were not the result of unwarrantable failure, explaining that:
31FMSHRC1364

[o]ur review of this record as a whole - particularly the undisputed
evidence regarding the prior warnings and the extensive and
obvious nature of the violation - leads us to conclude that there is
not substantial evidence to support the judge's finding that no
aggravated conduct occurred. In such a case, the proper course of
action is reversal, not remand.
Id. at 489 n.8. See also Consolidation Coal Co., 22 FMSHRC 328, 333 (Mar. 2000) (reversing
judge's finding of no unwarrantable failure when operator failed to respond effectively to rectify a
violative condition of which it was aware). As in those cases, we have here a record.in which
there is not substantial evidence to support a finding that aggravated conduct did not occur.

Congress created the unwarrantable failure designation in section 104(d)(l) as an
enforcement mechanism to be used in exactly the type of circumstance presented in·this case: an
operator whom MSHA repeatedly cited but who nonetheless failed to remedy a safety problem.
Although the trial judge is, of course, the initial finder of fact, it is axiomatic that when the
evidence supports only one conclusion, a remand to the judge serves no pwpose. See American.
Mine Servs.• Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (affirming judge's finding of no
unwarrantable failure, despite judge's error in not addressing&Ome of the Secretary's evidence).
Here, the record compels the conclusion that the·violation was .due.to the operator's unwarrantable
failure;. ~Acco'rditigly, lwould reverse::

31 FMSHRC 1365

Distribution:
Cheryl C. Blair- Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22m1_floor West
Arlington, VA 22209-2296
David J. Hardy, Esq.
Allen Guthrie, & Thomas, PLLC
500 Lee Street, East, Suite 800
P.O. Box 3394
Charleston, WV 25333
Administrative Law Judge David F. Barbour
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N. W., Suite 9500
•:Washington, D.C. 20001-2021

31 FMSHRC 1366

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

WASHINGTON, DC 20001

December 14, 2009
SECRETARY OF LABOR,
MINE SAFETY A@ HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2008-167
A.C. No. 15-02132-129470

v.
WEBSTER COUNTY COAL, LLC

BEFORE: Jordan. Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises undet the Federal Mine Safety and Health Act of 1977, 30U.S.C;. ·•
.· § 801 et seq. (2006) ("Mme Act"). On December 2, 2009, the Commission received ftom · •
Webster County Coal, LLC ("Webster") a motion seeking to reopen a proposed penalty
assessment that had· allegedly become a final order of the Commission pursuant to section 105(a)
-0fthe Mine Act, 30 U.S.C. § 815(a).
On April 13, 2009, Chief Administrative Law Judge Robert J. Lesnick issued a show

cause order to Webster because Webster had failed to file an answer to a petition for penalty
assessment sent to it by the Secretary of Labor on December 28, 2007. In the show cause order,
the judge stated that Webster would be found in default if it did not file an answer or show good
cause for not doing so within 30 days of the order. The record shows that Webster received the
Order to Show Cause on April 16, 2009. On November 3, 2009, Chief Judge Lesnick issued an
order finding that Webster had failed to respond to the show cause order and entering a judgment
by default for the Secretary.
On December 2, 2009, the Commission received the motion to reopen from Webster.

The motion did not provide reasons regarding why the company had not answered the petition for
penalty assessment nor responded to the show cause order. It instead asserted that the operator
had no record of receiving the proposed assessment. In her response to the motion, the Secretary
opposed the granting of Webster's request because it does not address any basis for vacating the
Chief Judge's default order.

31 FMSHRC 1367

The Chief Judge's jurisdiction in this matter terminated when his default order was issued
on November 3, 2009. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's
procedural rules, relief from a judge's decision may be sought by filing a petition for
discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2)(A); 29 C.F.R.
§ 2700.70(a). We construe the motion from Webster to be a timely filed petition for
discretionary review.
The petition for discretionary review filed by Webster does not address the validity of the
ChiefJudge's defauh order nor provide any reasons why the default order·should be vacated. The
operator also does not address why it failed to address the show cause order when the record
specifically indicates its receipt. In ad~tion, Webster does not indicate how the Secretary_had '.
issued.a petition for the assessment of civil penalty if Webster had not first contested the initial
proposed assessment, which it now claims not to have received. On these grounds, we hereby
deny the petition. 1
•

~·~

Michael F.~m111iSSi011er

Robert F. Cohen, Jr., Commissioner

1

Commissioners Duffy and Young would entertain an amended motion to reopen that
directly addresses Webster's failures to answer the petition for assessment of penalty and to
respond to the show cause order. Such a motion should include supporting documentation,
including affidavits from the individuals involved fully explaining those failures. See Prairie
Materials Sales Inc., 26 FMSHRC 800, 801 n.l (Oct. 2004).
31 FMSHRC 1368

Distribution:
Deanna L. Talwalkar, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
2333 Alumni Park Plaza, Suite 310
Lexington, KY 40517
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
i I 00 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance.
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, vA22299-3939
r,, ..

.

:

.

Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Revi~ Commission
601New Jersey Avenue, N.W., Suite 9500
Washington, D.C.. 20001-2021

31 FMSHRC 1369

FEDERAL MINE SAFETY AND HEALTH REVJEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500

WASHINGTON, DC 20001

December 15, 2009
SECRETARY OF LA.HOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEYA 2009-1871
A.C. No. 46-01436-180675

v.

Docket No. WEYA 2009-1872
A.C. No. 46-01436-186516

CONSOLIDATION COAL
COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
. BY~COMMISSION:

;·.

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (20o6) ("Mine Act").· On August 26, 2009, ·tl1e Coinmission received from
Consolidation Coal Company ("Consol") motions made by counsel seeking to reopen two
penalty assessments that had become final orders of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEVA 2009-1871 and WEYA 2009-1872, both captioned
Consolidation Coal Co. and both involving similar procedural issues. 29 C.F.R. § 2700.12.
31FMSHRC1370

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
The record.indicates that the operator misplaced the proposed assessments during a
lengthy process of changing portals at the mine. The proposed assessments were inadvertently
placed in a box of assessments that had already been processed, and this box had been left at the
portal which had been vacated. When the proposed assessments were discovered, the operator
promptly filed motions to reopen. The Secretary states that she does not oppose the reopening of
the pr<)posed penalty assessments.
·Having reviewed Consol's requests and the Secretary's responses, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, Z9 C.F .R.
Part 2700. Accordingly, ·consistent with Rule 28, the Secretary shall file a petition for assessment
of" penalty within 45 days of the date of this order. S.ee 29 C.F.R. § 2700.28.
;,

·.·

.

~~
Michaett:ConimisSkm~ s

Robert F. Cohen, Jr., Commissioner
31FMSHRC1371

Distribution:
R. Herny Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue ·
Pittsburgh, PA 15222 .
W. Christian Schumann, Esq.
Office of the Solicitor
u;s. Department of Labor

1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296

Myra James, Chief
Office of Civil Penalty Co~pliance
MSHA

U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington,VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick .
. Fede~l Mine Safety & Health Review Commission ·
::601 New Jersey Avenue, N.W., Suite 9500.
·
Washington, D.C. 20001-2021
' .

31FMSHRC1372

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

December 16, 2009
SECRETARY OFLA.BOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2009-546
A.C. No. 36~07230-171630

v.
CONSOL PENNSYLVANIA
COAL COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, CommissiOners
ORDER
. BY THE COMMISSION: ,
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C .
. § 801 et seq. (2006) ("MineAct''). On June 8, 2009, the Comm1s8ion·received a motion by
counsel for Consol Pennsylvania Coal Compaµy ("Consol'') seeking to reopen a penalty · ·
assessment that had become a final order of the Commission pursuant to section 105(a) .of the·
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed .
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR'"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

31FMSHRC1373 .

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs.; Inc., 17 FMSHRC1529, 1530 {Sept. 1995).
On December 16, 2008, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Proposed Assessment No. 000171630 to Consol, proposing
civil penalties for 70 citations issued to the operator at its Bailey Mine during the preceding two
months. Consol states that its then superintendent at the mine, who normally received
assessments and forwarded them to the safety department for further action, was on vacation
around the holidays when the assessment at issue arrived. Consol further explains that the mine
was idle for the holiday week, and that the safety director did not receive the assessment until
_Jcµiuary ~2. 2009. According to Consol, at that point the safety director affixed a cover sheet
indicating his mistaken belief that the assessment had been received just that day~ After Consol .·
sent its notice to MSHA that it was contesting 11 of the penalties on January 29, 2009, MSHA
rejected the contest as untimely.
The Secretary of Labor does not oppose the motion to reopen.
.

-

Certain factors weigh in favor of granting the motion to reopen, i.e., the Secretary does
not oppose it and the contest was eventually filed oaj.y four days late. However, Consol, after
learning of MSHA's February 23, 2009, rejection of its notice of contest, waited more than three
months to file its. moti~n to reopen. Under Rule 60(c), a motion to· reopen, regardless; ofits
merit, is only granted if it is filed within a reasonable time. In the context of penalty
asses~ents, in considering whether .an operator has unreasonably delayed in filing a motion to .
.· reOp~, Wt},find relevant the amount oftim~ that has passed between an.operator's receiptof a .:
delitiq~~n~y ·notice from MSHA or other notice of default. and the operator's filmg of its iJiotion· .
to reopen,.~~ well as the reason fot any delay. See, e.g., Left Fork Mining Co., 31 FMS~C 8;.
11 (Jan. 2009). ·

31FMSHRC1374

Having reviewed Consol's request and the Secretary's response, we conclude that Consol
has failed to explain the delay in responding to MSHA's rejection of its notice.of contest and
therefore has not provided the Commission with an adequate basis to reopen. See, e.g., Petra
Materials, 31 FMSHRC 47, 49 (Jan. 2009). Accordingly, we deny without prejudice Consol's
request to reopen.

Robert F. Cohen, Jr., Commissioner

31FMSHRC1375

Distribution:
R. Henry Moore, Esq.

Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue. _
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296

Myra James, Chief
Office of Civil Penalty CoII1pliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. -Lesnick
Federal ·Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC1376

ADMINISTRATIVE LAW JUDGE D~CISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 950P
Washington, D.C. 20001

November 4, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATIO}'l (MSHA),
Petitioner
v.
CLOVERLICK COAL CQ., LLC,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. KENT 2008-497
A.C. N<i 15-18241-136323

Mine# 1

DECISION
Appearances: Jennifer Booth, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville,
Tennessee, for Petitioner;
Richard Darrell Cohelia, Cloverlick Coal Company, LLC, Benham, Kentucky, for
Respondent.
Before:

Judge Hodgdon

This case is before me ,on a Petition for Assessment of Civil Penalty brought by the
Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA),.agaillst: - Clovetlick Coal Company, LLC, pursuant to section 1OS of the Federal Mine Safety .and Health
Act of.1977, as amended, 30
§ Sl5. The petition alleges four violations ofthe Sec'retary's
mandatory health and safety standards and seeks a penalty of $16,587 .00. A hearing was held in
Kingsport, Tennessee. For the reasons set forth below, I affirm the citations, after modifying
three of them, and assess a penalty of $2,834.00.

u.s.c.

Backeround
Cloverlick Coal Company operates Mine No. I, an underground coal mine, in Harlan
County, Kentucky. During a July 2, 2007, inspection of the mine, MSHA Inspector Samuel Ray
Creasey observed an oxygen tank and an acetylene tank which he believed were not being
properly stored. In addition, the acetylene tank was not being maintailled in safe operating
condition. While inspecting on July 23, 2007, Inspector Creasey determined that an adequate onshift inspection had not been conducted on the No. 3 belt flight for the 002 MMU (mechanized
mining unit). Finally, on August 30, 2007, he concluded that the approved ventilation plan in
effect at the mine was not being followed. The resulting four citations were contested by the
company and scheduled for trial.
At the beginning of the trial, the parties announced that they had settled Citation No.
6665561, concerning the inadequate on-shift inspection, and that the operator had agreed to pay
31FMSHRC1377

the proposed penalty in full. (Tr. 11.) Evidence was taken on the three remaining citations and
they will be discussed in the order issued. ·

Fin dines of Facts and Conclusions of Law
Citation No. 6665550
During the corirse of his July 2 inspection, Inspector Creasey observed an oxygen tank
and an acetylene tank lying, in an inverted manner, on the trailer of a mantrip. (Tr. 16-17.) As a
result of this observation, Inspector Creasey issued Citation No. 6665550 alleging a violation of
section 75.l 106-3(a)(2) of the Secretary's regulations, 30 C.F.R. § 75.l 106-3(a)(2). The citation
stated that the "Condition or Practice" resulting in the violation was that:
The oxygen and acetylene tanks for the 001 MMU are not
being stored in a safe manner. They are both tilted in an upside
down direction and the oxygen cylinder has its top extending 6" off
the back of the trailer that is being used to haul them. They are
also not adequately secured to the trailer.
(Govt. Ex. I.) Section 75J 106-3(a)(2) requires compressed gas cylinders stored in an.
underground coal mine to be '~[p]l@erl securely in storage areas designated by the operator: for· i.
such purposes, and where the height ·of the coalbed pennits, in an upright position, preferal,,ly in."
specially.~ignated racks,. or otherwi,se secured against being accid~tly tipped over."
j

.,

•

· . :. Xlw -~e<?tor testi;tied that the oxygeµ tank. extended appro~hnately six ~hes off the· .r · .·

back of the-trailet,· (Tr. 17.) He further" testified that the tanks could. be stored upright in this> .
mine. (Tr.. 17~) These tanks are used in repair work, such as oxygen cutting and torch work (Tr.
20.) Inspector Creasey admitted that he did not check to determine whether the tanks were empty
or full. (Tr. 29.) Cloverlick did not present any evidence on this citation.
The oxygen and acetylene tanks were apparently not in use. An oxygen tank and an
acetylene tank that are both lying upside down on a mantrip trailer cannot be considered to be in
an upright position or otherwise secured against being accidently tipped over. As a result, I find
that the operator violated section 75-l 106-3(a)(2) as alleged.
Significant and Substantial

Inspector Creasey determined that this violation was "significant and substantial." A
"significant and substantial" (S&S) violation is described in Section 104(d)(l) of the Act, 30
U.S.C. § 814(d)(l), as a violation "of such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or health hazard." A violation is
properly designated S&S "if, based upon the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a

31FMSHRC1378

reasonably serious nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April
1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), the Commission enumerated four
criteria that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v.
FMSHRC, 52 F. 3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F. 2d 99, 103104 (5th Cir. 1988),affg Austin Power, Inc., 9 FMSHRC 2015, 2021(Dec.1987) (approving
Mathies criteria). Evaluation of the criteria is made in terms of"continued normal mining
operations." U.S. Steel Mining Co., Inc. 6 FMSHRC 1573, 1574(July1984). Whether a
violation is S&S must be based on the particular facts surrounding the violation. Texasgulf,lnc.,
10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
In order to prove that a violation is S&S, the Secretary must establish: ( 1) a Yiolation of a
safety standard; (2) a distinct safety hazard contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury will be of a reasonably serious nature. Mathies, 6 FMSHRC at 3-4.
Inspector Creasey testified that the position of the acetylene tank created an explosion
hazard because the inverted position would cause the acetone to run to the valve where it would
not separate from the acetylene, making the.· acetylene more volatile.. ·{Tr. 17-18, 22.) He opined·~··
that such an explosion would result inJosu>f limbs, broken boµes, bums or lacerations, ·(Tr; 22.)
,. ! ; .! .

! ~·.

. •.• ~

:

' .•.

? . ·.

.

!

'

• "

,.

.

· ' . With regard to the oxygen t~:the ~ector .testified that the position of:the tank
hanging off of the rear of the trailer created the potential for the top of the tank to be knocked off;
exposing the valve; :(Tr. 18.) He.;speculated.that ifthe.valve was bro!Cen.off, the presstire.would .
be reteased.fromthetop.:ofthe tank, projecting it"like a;missile" ill the opposite direction.. (Tr; .
18-19.) Inspector Creasey testified that the tank likely weighed about 70 pounds. (Tr. 19). He ,
said that the tank was used and transported on a daily basis throughout the mine. (Tr. 21.) He
stated that if the tank did become a missile and hit someone, it would cause "fractures,
contusions, bruises." (Tr. 22-23.) As previously noted, the company presented no evidence on
this citation.
The evidence clearly establishes the first two criteria, the violation of a safety standard
and distinct safety hazards, explosions and propulsion, resulting from the violation. It also
establishes a reasonable likelihood that injuries of a reasonably serious nature, loss of limb,
broken bones, burns, lacerations or contusions would result from the violation. As is frequently
the case, however, it is the third criterion where the Secretary's proof fails.
When evaluating the reasonable likelihood of a fire, ignition, explosion or ''blast-off'
there must be a "confluence of factors" present based on the particular facts surrounding the
violation. Texasgulf, 10 FMSHRC at 501. This includes proof of a fuel source. Id. at 503. Here
the inspector admitted that he did not know whether the tanks were empty or full. The Secretary
presented no other evidence on this issue. Thus, the Secretary has not shown that the tanks
contained gas. In a remarkably similar case involving an alleged violation of section 75.110631 FMSHRC 1379

3(a)(2) for an oxygen tank and an acetylene tank leaning against the rib of a coal pillar in an
active roadway, the Commission held 'that the failure the Secretary to prove that the tanks
contained fuel supported "only the conclusion that the Secretary failed to carry her burden of
proof as to the critical element of a fuel source" and that, therefore, the violation was not S&S.
Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1284 (Dec. 1998).

or

Accordingly, I-conclude that the Secretary has failed to prove that this violation was
. "significant and substantial." The citation will be modified appropriately.
Citation No. 6665551
Inspector Creasey issued Citation No. 6665 551 alleging a violation of section 75 .11065(a) of the Secretary's regulations, 30 C.F.R. § 75.1106-S(a). The "Condition or Practice"
alleged to have resulted in this violation was that: ''The gauge for the acetylene cylinder on the
001 MMU is not being maintained in a safe operating condition. The gauge is broken off where
the pressure is read and this could possibly cause a leak when used." (Govt. Ex. 3.) Section
7 5.1106-5(a) requires that "[h]ose lines, gauges, and other cylinder accessories shall be
maintained in a safe operating condition."
. ~ .:.

· At the same time that he-found the t~ .lirV.erted in the trailer~ Inspector Creasey also. ·'
observed that the'.filgh-pressure· gaug~ on:the acety~ene. tank 'was 'missing.and .determined that it ' ':
had broken off. {Tr. 33 .) He testified that hazard caused by the .gauge being broken off w:as that• ;·

...
·•.

..,'

·, You wouldn~t be able to tell what pressure you 're letting the gas
through:the gauges- at. .And< acetylene ;by n.;ianufacturer .·
specification is not to ever' be released over:l5 psi, ·arid without that:'
gauge you wouldn't know what it's coming 0ut at because above
15 psi that acetylene can be spontaneous combustion •. And also,
you have the danger of a leak through that gauge right there.
(Tr. 33.)
The company did not present evidence on this citation. 1 I find that the Secretary has

1

On cross examination of the inspector, however, the operator did raise the issue of
whether this citation and the previous one were duplicative, that is, attempting to punish the
company ~wicc for the same action. (Tr. 38.) The Commission has long held that "citations are
not duplicative as long as the standards involved impose separate and distinct duties on an
operator." Spartan Mining Co., Inc., 30 FMSHRC 699, 716 (Aug. 2008); Western Fuels-Utah,
Inc., 19 FMSHRC 994, 1003-04 (June 1997); Cyprus Tonopah Mining Corp., 15 FMSHRC 367,
378 {Mar. 1993); El Paso Rock Quarries, Inc., 3 FMSHRC 35, 40 (Jan. 1981). Here the
standards clearly impose separate and distinct duties on the operator: ( 1) the storage of gas
cylinders; and (2) maintaining gauges in safe operating condition.

31 FMSHRC 1380

established that the gauge on the acetylene cylinder was not maintained in accordance with the
·· ·
mandatory safety standard in Section 75·~l106-5(a).
Significant and Substantial

Inspector Creasey designated this citation as "significant and substantial." .In support of
this; he testified, as set "t>Ut above, that without the gauge it was not possible to determine the
. pressure of the gas being released. This is important, because if the pressure were over 15 psi, it
could result in spontaneous combustion. He also said that gas could leak from the area where the
gauge had broken off. He submitted that a fire from the ignition of gas leaking from the gauge or
an explosion if the pressure exceeded 15 psi could result in amputations, broken bones or serious
bums. (Tr~ 34-35.)
All of this, however, depends on there being gas in the tank. As was determined
previously, the Secretary has failed to establish that there was gas in the tank. Thus, the third
Mathies criterion has also not been proven for this citation. Consequently, I conclude that the
violation was not "significant and substantial" and will modify the citation accordingly.
Citation No. 6665589
(:

,.

. During J:ngpector'Creasey.~s.Ailgµst ~-0,·2007;:;~tio~,he'ObS.erved a.miner cutting coal
:·~mdirockin the N~J2 heading.and Visible:iiock:dust throughoutitb.eNo.:2 entry. (TJ'.; 41-43.) ·
Mining operations were stopped and Inspector Crea5ey went up to the end of the line curtain. ·
(Tr. 41-42.) He attempted to1ake, an ·air.reading,withhis;arieinometer, but tbe turbine in the
·.anemometer would not-turn. ·(Tr.. 42:)· From•that.poin\ he.walk~. to·the jjrst. line curtain.outby
the last open crosscut and discovered that there was notidieck'.c'urtain at that point (Tl'; 42.)
As a result, the air was sh()rt circuiting through 1he .area rather than· going up to the face area
· where the miner was cutting. (Tr. 42.)
:_, .:

Based on these observations, Inspector Creasey issued Citation No. 6665589 to
Cloverlick alleging a violation of section 75.370(a)(l) of the Secretary's regulations, 30 C.F.R.
§ 75.370(a)(l).2 The "Condition or Practice" alleged to result in this violation was stated as:
The operator is not following the approved ventilation plan
in effect at this mine. The Joy Miner, SIN JM5984, was observed
cutting and loading coal in the No. 2 Heading on the active 002
MMU. When an anemometer was held up behind the exhausting
line curtain, it would not turn. The ventilation plan requires 6,000

2

Inspector Creasey issued the citation as a 104(a) citation, 30 U.S.C. § 814(a), alleging
that the violation was S&S and resulted from "high" negligence. (Govt. Ex. 4 at 1.) On
September 18, 2007, he modified it to a 104(d}(l) citation. (Govt. Ex. 4 at 2.) On October 29,
2008, the day before trial, he modified it back to a 104(a) citation. (Govt. Ex. 4 at 3, Tr. 41.)
31FMSHRC1381

c:fm of air and 60 FPM Mean Air at the face where coal is being
mined, cut, or loaded. The first open crosscut inby the return
brattice line did not have a block curtain in it and the section intake
air was short circuiting into the return at this location. There was
visible dust in the area of the miner and outby in the #2 entry. The
miner was cutting approximately 30" of rock in this area.
(Govt. Ex. 4.) Section 75.370(a)(l) provides that: ''The 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 system at the mine."
The ventilation plan at Cloverlick's Mine No. l requires 6,000 cfin of air at the "inby end of the
line curtain used a[t] the working face" where MMU 002-0 is being operated. (Gov't Ex. 6 at
12.).
Charles Dewayne Baker was the second shift section foreman at Cloverlick when the
citation was issued. (Tr. 67.) He testified that all the curtains were hung in the No. 2 section
when he completed his pt:e-shift examination, somewhere between 9:00and,t1:00 p.m. (Tr. 71.)
When Baker took an air sample, at that time, it was ''well above" 6,000 cfm. (Tr. 72.)
.· ·Baker related that he was not·present in the No~.2 heading.when the inspector made his
·aitrteading and found the missing block.curtain.at .W::oµnd •ll:30+p·.m.,. but responded to Inspector
'Creasey~s sUmmons to ·go·.there;·;{Tr" 74.) <:.H~·asserted·that on his:amval, after the,inspectqr·told.
him that he;did not.have any air, he stmtedto·take.his own air reading, but.did notcompleteit ·.;
·.·becaus.e "Mtl Creasey, he seemed to ha\re a problem. arid• I wanted to. find .out what it was." .(Tr. •:
. 74:) He claimed,: however, that his "blades were .turning/' (J:r.;. 74:):.. · .. .
· ;.
. ·:· .. ~ •.. l .

.

. ~'."

Baker said that he then sent two "car drivers?:' down .one· side of the entry to check for
downed curtains and he ''walked ·down.#2 ·entry all .the way to ·the feeder.,,_ right across from the ·
feeder to check curtains myself on that side." (Tr; 74-75.) Neither the drivers nor he found any
curtains down. (Tr. 75.) He testified that then: "I went back up to Mr. Creasey and to the best of
my knowledge he said, 'You've got it now. You can-you can go ahead and move your miner'
because he had my miner stopped." (Tr. 75.)
Baker speculated that a possible reason the curtain could have been missing was that a
scoop operator had knocked it down while going through the area. (Tr. 73.) Baker testified that
the scoop operator had tom down curtains in the past, and he would need reminding to hang them
back up. (Tr. 73.) He said that the operator could have tom dovm the curtain in question and put
it back up without his knowledge, although at the time, the operator had denied tearing one
down. (Tr. 88.) Nevertheless, Baker also contended that the scoop operator was not a good
worker and had been subsequently fired. (Tr. 88.)
On the other hand, Inspector Creasey testified that he was in the area approximately 25
minutes before the curtain was replaced. (Tr. 45.) He said that the curtain was still missing
when Baker arrived. (Tr. 63-64.)
·
31FMSHRC1382

Neither side presented any other evidence to support their position. Indeed, it is difficult
to discern exactly what is the company's position. Except for denying that he ever saw a missing
curtain, Baker's testimony relies on implications, rather than direct contradictions, to attempt to
refute the inspector's testimony. In fact, when asked by counsel for the Secretary if it was his
testimony that the condition never existed, Baker responded: "No, ma' am. No, I'm just - I'm
just telling you everything was up when I checked it. It was there." (Tr. 82.) fu addition, when
discussing whether the parties wanted to submit briefs in the case, the company's representative
said that the only thing they were contesting was high negligence, that they had no problem with
the citation or the S&S part ofit. (Tr. 89-90.)
Nonetheless, it is necessary to address the credibility of the witnesses to decide whether
there was a violation. fu this regard, the inspector'stestimony was coherent, straightforward and
not weakened by cross examination. Further, it is essentially corroborated by his notes made at
the time of the violation. (Govt. Ex. 5 at 2.) Finally, there is no apparent reason for Inspector
Creasey not to tell the truth.
Contrarily, Baker's testimony was hesitant, equivocal on significant points and
undermined by cross examination. Thus, his testimony that his ''blades were turning" and his
implication that there was never a curtain down are questionable. Furthermore, by relating that
•another Cloverlick foreman had been suspended without pay for three d,ays for a simil~ citation,,
'albeit~ TO~(d)(t )-citation, he provided.a good reason for riot• admifiingthe,violation.~ ..:(Tr.;84- ·
87.)
,,
·····"·

·· Aceordingly,.J credit the testimony of Inspector Creasey and:find that the operator ·
violated section 75370(a)(l) as alleged.

·- Si~ifieant and Substantial
Inspector Creasey designated this violation as being ''significant and substantial." He
said that both silicosis and pneumoconiosis were likely because the miners working in the area
·were "breathing rock dust because of the high quartz content in the rock And you also have the
coal dust in that area too because it's just suspended in the air and no air is coming to move it
out." (Tr. 46.) He testified that the amount of dust was extensive throughout the No. 2 entry.
(Tr. 50.) From the evidence, he believed that the violation "[p]ossibly existed for the entire cut.
Approximately 30 minutes." (Tr. 64.)
The Commission has held that the overexposure to coal and quartz dust resulting from a
violation of the rcspirable dust standards, sections 70.100 or 70.101, 30 C.F.R. §§ 70.100 or
70.101, is presumed to be S&S. U.S. Steel Mining Co., Inc., 8 FMSHRC 1274, 1281 (Sept.
1986); Consolidation Coal Co., 8 FMSHRC 890, 899 (June 1986). The Commissioners reached

3

Until the day before the trial, the company believed it was facing a 104(d){l) citation.

See n.2, supra.
31 FMSHRC 1383

·..;. ~··

this conclusion based on "the nature of the health hazards at issue, the potentially devastating
consequences to affected miners, and the strong concern expressed by Congress for the
elimination of occupation-related respiratory illnesses to miners ...." U.S. Steel, 8 FMSHRC at
1281. While there can be no such presumption in this case, since a respirable dust standard is not
involved, the same concerns still apply. This particularly true here, where the exposure was ·
extensive and could have lasted as long as 30 minutes.
Applying the Mathies criteria, I have already found (1) a violation of a safety standard. I
further find: (2) that the violation contributed to a discrete safety hazard, overexposure to quartz
and coal dust; (3) that, because of the extensiveness of the dust and the length of time the
violation probably lasted, it was reasonably likely that an injury would result; and (4) that the
injury would be serious, resulting in silicosis and/or pneumoconiosis. Therefore, I conclude that
the violation was "significant and substantial."
Civil Penalty Assessment

The Secretary has_proposed penalties of$15,953.00 for the three violations contested at
the hearing. However, it .is the judge's independent responsibility to determine the appropriate
amountofpenalty in accordance with the six penalty criteria set out in section llO(i) of the Act,
30 U.S.C:·§ 820(i)., Sellersburg Stone Co. v. FMSHRC, 736F.2d1147, H5L(7th Cir. 1984);;.
·lrfallace-Bi'others, Jn~., 18 FMSHRC 481,.483.-484 (Apr. 1996)
'.

,·.

In this connection, the parties have stipulatedothat the .proposed penalties will not affect·
-the company's ability to .remain in business and thatCloverlick demonstrated good faith in
attempting to achieve rapid compliance ·after·notificatiOn of the,violations. ((Tr. 12-13-;): I find·, from the allied papers that Mine No. 1 is a large mine and its controlling entity is a la,rge · . ·-:'
company. I further find that the operator has a better than average history of previous violations.
(Govt. Ex. 8.)
Turning to gravity, I find that the two gas cylinder violations, Citation Nos. 6665550 and
6665551, were not very serious. However, I find that Citation No. 6665589, the ventilation plan
violation, was a serious violation of the secretary's standards.
With regard to negligence, Inspector Creasey found that the operator was moderately
negligent concerning the cylinder violations because they were "in an area where the pre-shifters
and on-shift examiners travel through the area and they should have seen where they were ...."
(Tr. 24, 35.) Tconcur with his assessment.
I do not agree, however, with his conclusion that the ventilation plan violation resulted
from "high" negligence. He based this conclusion on the extensiveness of the dust and the fact .
that more than one person knew that the condition existed at the time. (Tr. 50.) Inspector
Creasey testified that when the miner operator came out of the area he was covered with white
dust. (Tr. 50.) He further testified that "anyone with ... reasonable mining experience would
know that air wasn't moving in that area." (Tr. 50.)
31 FMSHRC 1384

However, there is no evidence that Baker, the section foreman, knew of the condition. In
fact, the evidence is that he was not present. What evidence' there is suggests that the curtain was
tom down by a scoop operator. At least, that is what the inspector was told after the curtain was
re-hung and mining began again. (Tr. 54.)
The Commission has long held that the negligence of a "rank-and-file" miner cannot be
imputed to the operator-for civil penalty purposes. Fort Scott Fertilizer-Cul/or, Inc., 17
FMSHRC 1112, 1116 (July 1995); Western Fuels-Utah, Inc., 10 FMSHRC 256, 260-61 (Mar.
1988); Southern Ohio Coal Co., 4 FMSHRC 1459, 1464 (Aug. 1982) (SOCCO). In this
connection, the Commission has stated that: "[W]here a rank-and-file employee has violated the
act, the operator's supervision, training and disciplining of its employees must be examined to
detemlint:fif the operator has taken reasonable steps necessary to prevent the rank-and-file
miner's violative conduct." SOCCO at 1464.
To try to show "high" negligence, the Secretary introduced a citation that the company
had received for the same violation during the previous May. (Govt. Ex. 7, Tr. 51-53.) By itself,
that one citation does not demonstrate a lack of supervision, training or disciplining of its
employees on the part of the operator. Furthennore, unlike this citation, the foreman (not Baker)
was present while the violation was occurring when the May citation was-issued. (Tr. 53.)
Firially, the foreman involved in the May citation was sUsJ)ended for three days withpµt·pay and :;;
the scoop operator: suspected oftea.ririg down the c~ in this:cas~ was.,subsequently· fired; -(Ti\ ;
87.;.88.} This shows ·that the operator was taking reasonable steps to prevent. rank-and-file
mirier' s violative conduct. Accordingly, I will modify the level of negligence for Citation No; :
.,
· · , . l . ·. ,::· .
. 6665589. from "high" to "low."
... ·..

·~

•• .

• • • '_· 1::

•, '

... ··

,;_ "' · Taking all 6.fthesefactors into consideration, I conclude.that the following penalties are.·
appropriat~: (I) Citation No. 6665550-$100.00; (2) Citation NO'. 6665551~$100;00; (3) Citation
No. 6665561, in accordance with the parties agreement,-$634.00; and (4) Citation No.
6665589-$2,000.00.4 Therefore, the total penalty in this matter is $2,834.00.

Order
fu view of the above, Citation No. 6665561, in accordance with the agreement of the
parties, is AFFIRMED; Citation Nos. 6665550 and 6665551 are MODIFIED, by deleting the
"significant and substantial" designations, and are AFFIRMED as modified; and Citation No.
6665589 is MODIFIED, by reducing the level of negligence from "high" to "low," and is

4

It is apparent that Citation No. 6665589 was originally assessed as a 104(d)(l) citation
and that the penalty was not modified when the citation was modified. I took this into
consideration in addition to the penalty criteria discussed above.
31 FMSHRC 1385

AFFIRMED as modified. Cloverlick Coal Company; LLC, is ORDERED TO PAY a civil
penalty of $2,834.00 within 30 days of the date of this decision.

d~~

T. Todd Hod;~
Senior Administrative Law Judge

Di~bution:
Jennifer D. Booth~ Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, ··
Suite 230, Nashville, TN 37219
Richard D. Cohelia, Cloverlick Coal Company, P.O. Box 527, Benham, KY 40807
/rps

31FMSHRC1386

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19"' ST~'f. SUITE 443
DENVER, CO 80202·2500

303--844-3577/FAX 30~5268

November 5, 2009
DISCRIMINATION PROCEEDING

PETER J. PHILLIPS,
Complainant

Docket No. WEST 2009-286-DM
RM MO 2008-05

v.
Mine ID 05-04
Portable Crusher #4
A & S CONSTRUCTION COMPANY,
Respondent
DECISION

Appearances:

Peter J .. Phillips., Florence, Colorado, pro se;
Richard P. Ranson, Esq., and Jason P. Kane, Esq., Ranson &
Kane, P.C., Colorado Springs, Colorado~ for Respondent.

Before:

Judge Manning
.

.

.

.. . This cas~ is before me on a complaint of discrimination brought·by Peter J. Phillips
.·against A & S Construction Company ("A & S"), under section 105(c)(3) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §815(c)(3) (the "Mine Act''). Mr. Phillips contends
that he was terminated from his employment because he complained about safety issues at the .
Evans Pit. An evidentiary hearing was held in Canon City, Colorado. For the reasons set forth
below, the discrimination complaint is dismissed.
I. BACKGROUND, SUMMARY OF THE EVIDENCE, AND
FINDINGS OF FACT

At all pertinent times, A & S operated the Evans Pit near Pueblo, Colorado. The pit
included a crusher and ancillary equipment used to make aggregate for asphalt and concrete
products. Jn June 2007, the crusher was operating 24 homs a day, seven days a week. On or
about February 12, 2008, Mr. Phillips filed a discrimination complaint with the local office of the
Department of Labor's Mine Safety and Health Administration (''MSHA''). On November 3,
2008, the Secretary determined that the facts disclosed dUring her investigation into the
complaint filed by Phillips do not constitute a violation of section 105(c) of the Mine Act. 1

1

The parties were previously engaged in litigation concerning these matters. Before.the
Secretary determined that section 105(c) of the Mine· Act had not been violated, she brought a
temporary reinstatement case under section 105(c)(2). A & S agreed to an economic reinstatement.
31FMSHRC1387

On or about December 12, 2008, Phillips filed this proceeding on his own behalf under
section 105(c)(3) of the Mine Act. The ~orriplaint of dl:scrifuination alleges that he was a wash
plant foreman for A & Sand that on June26, 2007, he observed the scraper lying on its side.
When he went to see what had happened, he saw Kenny McMullen, the scraper operator, shaking
his head saying that he could not believe that he did this. When Phillips talked to McMullen, he
could smell alcohol on his breath. Harvey Barnhard approached and Phillips told him that
McMullen was drunk-r Phillips told Barnhard that he wanted McMullen off the property. .
Barnhard told him to mind his own business. Phillips then called John Paul Ary and was told
that McMullen was the only scraper operator and that he would have to stay. Phillips replied that
he does not ''put up with anyone drinking or doing drugs on the job." (Discrim. Complaint). On
or about September 8, 2007, when McMullen came to work drunk, Phillips told him that he was
fired. McMullen called Ary who told him that he was not fired. Phillips subsequently told Ary . ·
that McMullen could kill someone, to which Ary responded by telling Phillips to mind his own
business. On September 13, 2007, A & S fired Phillips for allegedly failing to show up at work
without prior approval. In its answer to the complaint, A & S denied these allegations and
asserted several affirmative defenses.
.,

A. Phillips' Request for a Second Continuance.

This case was assigned to me on February 20, 2009, and I issued a prehearing order on .
February 23. I issued a notice of hearing on March 23, 2009;JolloWing a conference call.wi.tb. ·
the parties, set$g the hearing for May 18~ Shortly thereafter, ~ix subpoenas wer~ sent to Phillips
at his request.· Counsel for A & S took Phillips' deposition on April 8, 2009. As· required by my
notice ofhearing, A & S.subniitted ~ts witness and exhibit list to me on M~y 6. On or about May
. i4, another conf~ce c~l was held during which Phillips asked that the hearing be canc¢led. ,
because he _felt he. needed to find counsel to represent him. I orally granted Phillips'· requ~t and .,
then issued an order on May 14 canceling the hearing so that he could find an attorney to:
represent him in the case.
On July 17, 2009, I held another conference call with the parties. During this call,

Phillips advised me that he was unable to find an attorney to represent him and that I should set a
hearing date. After discussing several possible dates, the parties agreed that the bearing would be
held on September 9, 2009. On this basis, I issued a notice of hearing on July 20 setting the case
for hearing on September 9.
The parties convened on September 9 in Cafion City and Phillips was ready to proceed
with the hearing. Phillips did not raise any objections to the hearing when I asked if there were
On November 26, 2008, Judge David Barbour dissolved his order of temporary· economic
reinstatement and dismissed the temporary reinstatement proceeding. 30 FMSHRC 1119 (Nov.
2008). The Commission granted Phillips' petition for review ofthe judge,s dissolution ofthe order
of temporary economic reinstatement. By decision dated September 9, 2009, the Commission, by
(Sept. 2009).
a two to two vote, affirmed the judge's order. 31 FMSHRC

31 FMSHRC 1388

any preliminary matters. (Tr. 5). After counsel for A & S finished with his opening statement,
Phillips said "I am going to need a lawyer~" (Tr. 14). He characterized the company's opening
statement as "nothing but lies." Id. I advised him that an opening statement is not evidence and
that I would not consider it when rendering my decision. (Tr. 15). I reminded Phillips that I
postponed the hearing from May until September so thathe could find an attorney and that
during our July conference call he advised me that he was ready to proceed to hearing. (Tr. 1415). He replied "[t]hen..you will have to decide it and rule for them." (Tr. 15). When Phillips
was asked why he did not get a lawyer after the hearing was postponed in May, he replied "I
don't have no money [and} I still don't have no money." (Tr. 16). Phillips said that he called
four attorneys including Tony Oppegard. The three Denver attorneys wanted a retainer of $2,500
and he said. "I don't have that kind of money." Id. He indicated that he needed a lawyer after
listening to the company's opening statement because it was""all fabricated." Id. I did n:ot grant
his request for second continuance of the hearing and called Phillips to the stand so that he could
present his case.
The Commission has not directly addressed the right to counsel issue. In Sewell Coal
Co., the Commission reversed a judge because he set a hearing date that conflicted with a
previously scheduled commitment of the company's counsel and then refused to continue the
hearing upon the request of the attorney. 2 FMSHRC 2479 (Sept. 1980). The Commissio~
balanced the public interest in the prompt !adjudication of cas~ against the ~onveniencl'.Pfthe , :
judge. and the party's right to be represen~d by coun&el, and concluded that the judge abused' hi$.
discretion in denying the request fot a continuance. The Comnµ_ssion stated that "due-process .
. has been given ... when a party bas been afforded the opportunity to obtain competeQ.t counsel . ·:
, ... ;" 1d. at 2480. In Jaxsun v. Asarco, LLC., the Commission recognizedithat, when assessing .
: matter5 of party rq>resentation at a:liearin& judges should be guide~ )?y the Mine Act, the,·; · :· ; .·.
Commission's PrOcedural Rules, and the.Administrative ProcedureA~t ('~APA'). 29 FMSHRG ·
616, 620-621 (Aug. 2007). The APA provides that a party may appear at a hearing without•.·
representation, although the party is entitled to obtain representation. 5 U.S.C. § SSS(b). The
Commission's procedural rules· allow a party to represent himself or obtain counsel. 29 C.F.R.
§§ 2700.3(b)(l), 2700.4(a).
·At least one federal court has held that a judge does not abuse his discretion when, in a
civil case, he denies a motion to continue a case a second time after tfie.:moving party failed to
obtain counsel during the first continuance. Charles v. Rice, 999 F.2d 1580; 1993 WL 307892
(5th Cir. 1993) (unpublished). The court held that an abuse of discretion will be found only when
the denial of continuance " 'severely prejudiced' the party requesting it and where, 'on balance,
the interests in favor of a fair trial heavily outweighed the interests in favor of an immediate
trial.' "Id. at WL p. 3, citing Smith-Weik Machinery Corp. v. Murdock Machine & Engineering
Co., 423 F.2d 842, 844 (5th Cir. 1970).
In this case, I granted Phillips a contin~ce of the hearing, over the objection of A & S,
so that he could obtain counsel. I set the case for hearing a second time only after Phillips
advised me that he was unable to obtain counsel and he was ready to proceed to hearing. I chose

31 FMSHRC 1389

September 9, 2009, for the hearing date after making sure, during a conference call, that Phillips
had no objection to that date. The hearing commenced as scheduled and Phillips asked for a
continuance only after counsel for the company completed his opening statement.2 When asked
why he had not engaged an attorney during the summer, he replied that he did not have sufficient
funds to pay a retainer and that he still did. not have such funds. It would have been unfair to
A & S to grant a second continuance at the start of the hearing because A & S was prepared for
the hearing and the company had four witnesses ready to testify. The Commission had.expended
resources in preparation of the hearing and had retained a .court reporter. The only basis Phillips
gave was that the company's opening statement was ''nothing but lies." I explained to Phillips
that the opening statement was not evidence and that he would be given the opportunity to crossexamine the company's witnesses after..they testified. He also knew, well before the hearing, that
the coinpany would offer evidence thafdiffered from his oWn. He had a copy of the company's
witness and exhibit lists since May 6, 2009. Phillips had a copy of the company's.six page
answer which set forth many of the ·defenses that counsel summarized in his opening statement.
Indeed, Phillips sent A & S a response to the answer so it is clear that he had studied it. (Ex. B).
Congress provided that discrimination cases shall ''be expedited" by the Commission.
(§ 105(c)(3) Mine Act). I weighed all of the factors set forth above and detennined that Phillip's
request for a second continuance should be denied, especially since the request came after the
hearing had started and it was unlikely that he would have been more successful in retaining an
attorney than ·he had been. during the s1llllliier_,
.

. . .. .' . .
~

~

. ···. , ..

B. Summacy:of'..the,testimony~

Phillips testified that he was· hired by A & s· ,in August 2006, after he was:fired fr.om :"·
· another job." (Tr. 18). · He was. hiied to operate 'a loader. at the Evans. Pit near ·Pueblo, Colorado, . ·,
.- In November of that year he started working as a mechanic at the pit. He had prior·experienae ·
working as a mechanic. on heavy equipment. Phillips testified that Darrell Fisher was his
· supervisor at the pit and that they got along very well. Fisher was the crusher foreman at the pit
and he supervised the pit when Harvey Barnhart was not there. Fisher became the crusher
superintendent after Barnhart was reassigned to other pits in July 2007. {Tr. 102, 106-07, 111).
John Paul Ary functioned as the chief operating officer of A & S. (Tr. 79-80, 140-42). Phillips
was responsible for keeping the wash plant operating. He did not supervise anyone and he could
not set his own hours even after he was given the title "foreman" in August,2007. {Tr. 101).
Harvey Barnhart was the crusher superintendent for A & S and, as such, was the
supervisor of the Evans Pit. (Tr. 80). He was also the supervisor of three other pits for A & S.
He has worked for A & S since 1987 and has operated virtually every piece of equipment that the
company owns. In the summer of 2007, the wash plant at the pit was operating seven days a
week and 24 hours a day. A & S employed about 100 people in 2007.
2

If! had not granted the company's request to make an opening statement, the trial would
have proceeded and Phillips would not have asked for the continuance at all or he would have
requested a continuance after one or more of the company's witnesses had testified.

31 FMSHRC 1390

Denise Gonzales was the office manager and safety manager for A & S. As safety
manager, she monitored safety training to make sure that all employees received required
MSHA/OSHA training. (Tr. 121). She also supervised enforcement of the company's alcohol
and drug policies. She gave each new employee an employee manual, safety manual, and
drug/alcohol policy statement. (Ex. D). She testified that the company conducts drug/alcohol
testing when hiring employees, after serious accidents, upon reasonable suspicion, and on a
random basis. (Tr. 123}.

1. Events of June 26 and 28, 2007
On June 26, 2007, McMullen partially tipped .over the scraper be was operating while he
· was dumping overburden. Phillips testified that he\va8 in the control shack iunning the wash
plant and he could ~ee the scraper from that vantage point. (Tr. 21). Phillips said that he was the
first person to arrive at the scene of the accident. Phillips· testified that he could smell alcohol on
McMullen's breath when he talked to him. Phillips also testified that Fisher arrived at the scene
soon thereafter and he told Fisher about the alcohol on McMullen's breath. (Tr. 27). According
to Phillips, when he told Fi_sher that McMullen should be fired, he agreed with him "l 00 ·
percent." (Tr. 25, 51-52). Phillips also testified that he called Ary to discuss the incident with
him using Fisher's cell phone. Phillips testified that Ary replied that because McMullen was the
company's only scraper operator; he would not be.terminated. ·
. ,....
'··'

.

:·,,

'

;.>

•.'.·

. Barnhaitrtestified that when lie arrived at.the pit on June 26, he noticed that someone··was
moving the trackhoe toward the area· where the overburden was being stacked in berms. :{Tr. 93).
· . Phillips was operating the.trackhoe~ .He told Phillips to·take the .trackhoe back to the pit and to.. :
·•. return·to the wash plant. :Barnhart testified that he·did not have.·anyother discussion with--Phillips
: afthat time. (Tr.. 95); As the scraper dumps more overburden .on a•bemi, a- slope will develop~ . ,
Barnhart testified that McMullen should have used the bulldozer, that was parked in the area, to .
flatten out the berm when it became too steep. (Tr. 91-95). Ifhe had done that, he would not
have tipped the scraper. Barnhart testified that it only took about five minutes to get the scraper
.
.
gomg agam.

Jn his complaint of discrimination, Phillips stated that. when Barnhart arrived at the pit
that day, Phillips told Barnhart that he wanted McMullen "off the pit today'' and that Barnhart
told him ''to mind my own "f---ing business' " (Ex. A). Phillips testified about these events at
the hearing. (Tr. 49-50). Barnhart testified that Phillips did not mention anything about
McMullen having alcohol on his breath that day. (Tr. 96, 106). He also testified that Fisher was
not at the pit on June 26, 2007, but was out of town on personal business. (Tr. 97). Fisher
testified that he was in Silver City, New Mexico, on June 26 visiting his in-laws. (Tr. 109; Ex.
N). He did not return to work at the pit until July 2. He could not recall any time when Phillips
complained about employees operating equipment with alcohol on their breath. (Tr. 114-15).
Barnhart testified that he has known and worked with McMullen for many years.
Barnhart worked close to McMullen on June 26 and he did not smell any alcohol on McMullen's

31 FMSHRC 1391

breath that day or on any other day. (Tr. 103-04). He also stated that he would tenninate anyone
using drugs or alcohol ''in a heartbeat." (Tr. 104). The company has a zero tolerance policy in
that regard. Ary also testified that the company has zero tolerance for alcohol
and drug abuse. (Tr. 142-3). If there is an accident caused by an employee who is impaired by
alcohol, the financial impact would be "devastating' to the company. Ary testified that
"[i]nsurance companies are driving our industry'' because the risk of liability is so great. (Tr.
144). Based on his experience with Barnhart, Ary said that there is no doubt in his mind that, if
Barnhart was made aware that an employee had the smell of alcohol on his breath, he would have
called for an immediate test of that employee. Ary testified that he never heard that Phillips had
complained about McMullen. Barnhart also testified that, if a scraper operator quit or was
terminated, he could find a replacement that same day by moving another employee into that.
position. ·(Tr. &5). - ·
On June 28, 2009~ Barnhart tenninated Phillips from his employment. (Tr. 31). Phillips
said that he was let go after he had an argument with Barnhart. Phillips testified that this
termination had nothing to do with the events of June 26 involving McMullen. (Tr 52-53).
Barnhart testified that he _was eating lunch that day when Phillips approached him and said, "I
don't like my job anymore." (Tr. 98). When Barnhart said that not everyone likes their job .all
the time, Phillips said he was riot going to repair the wash plant when it breaks down anymore.
Barnhart asked-Phillips~to return to the wash plant. Phillips said thathe was taking th~·restof~dte:
week offand that he would retunfon Monday. (Tr. 98).· Atthat point, Barnhart terminated:his · ·
., .
..
· empl()ymeritwiththe·company. :
. . . ·..

:

\'·.

· · ... · Oniune29~ .Ary.called Phillips.;and.offered him,his job·back... ·Ary told Barnhart that hth
·rehired:hiJn 'becauSe·the company needed ·to"keep a' mechanitfwelder on staff and the company;.·;
wa8 ·''under'the·.gUrt'"to keep the-waSh plant operating. ·(Tr. 99).. Acy testified that he wantetho '..·
give Phillips a second chance; (Tr. ·t 47, 150). Fisher testified that when he returned from his.
vacation in New Mexico, after Phillips had been rehired, he noticed a change in Phillips' attitude
toward his work. According to Fisher, after he was hired back, "he· figured nobody could tell him
nothing." (Tr. 112-13). For example, according to Fisher, Phillips took a longer time when
changing a screen at the wash plant.
2. Events of September 8, 2007

Phillips also testified that when he came to work on September 8, 2007, he again smelled
alcohol on McMullen's breath. (Tr. 43). Phillips testified that he told McMullen that he was
fired, but he admitted at the hearing that he did not have the authority to fire anyone. (Tr. 44).
Phillips testified that he complained to Fisher about this. (Tr. 23-25, 43-33). Phillips said that he
smelled alcohol on McMullen's breath on at least one other occasion while at work. In his
complaint of discrimination, Phillips stated that he talked to Ary that day and asked him " 'what
if [McMullen] kills someone or himself?' and John Paul Ary told me to mind my own business."
(Ex. A). At the hearing, Phillips testified that he did not talk to Ary about this incident. (Tr. 5657). Fisher testified that Phillips never told him that he smelled alcohol on McMullen's breath.
31 FMSHRC 1392

(Tr. 115). Gonzales testified that, according to the company's payroll records, McMullen was
·
not at work on September 8, 2007. (Tr. 134.;.36).
3. Events of September 11 - 13, 2007

Phillips testified that during the afternoon of September 11, 2007, he talked to Fisher
about going to the company's facility in Cafion City to get a stretcher and other safety supplies to
take to the Evans Pit. He also said that he called Fisher on the phone that evening to let Fisher
know that he would was definitely getting these supplies the next day rather than going to work
at the pit. (Tr. 33-34, 70-71). He also told him that he was going to Ace Hardware to get other
supplies for the pit. Phillips said that he put on his work clothes on September 12 and .went to
the Fremont Paving3 yard in Cafion City. He talked to a man in the parts area about getting a
number of items including a stretcher. He got a purchase order from the parts man and went to
Ace Hardware to get additional parts including plywood, a T-Square, and a socket wrench. (Tr.
36-38). He then went home for the day at about 2:00 p.m. (Tr. 39). He normally works a 12
hour shift at the pit, from 6:00 a.m. to 6:00 p.m. Phillips testified that he called Fisher at the pit
and Fisher told him that ev~g was running well. (Tr. 68.;.69). In his deposition, Phillips
testified that he talked to Denise Gonzales at the Fremont Paving office about getting a company
truck. (Tr. 63-64; Ex. I). He could notremember this conversation: at the hearing. (Tr. 62). In
,. his deposition, he said that he did not talk.to Fisher on September 12. (Tr. 69).

·...
·

... '· .· -

Fisher testified that Phillips·failed to report to :work on September 12. ·Fisher further
testified that Phillips never notified him that he would.not be working at the .Evans Pit on
·September 12._ (Tr; 117, 119). At about 10:00 a~m. oh September 12, Denise Gonzales called
·Fisher to :ask why Phillips was at her:office at Fremont Paving in;Cafion .City·instead· of at. the pit.
,Jd• . He told her that he had no idea why Phillips .was there~.:
Gonzales testified that Phillips spoke to her on the morning of September 12 at the
Fremont Paving office. She testified that he was not wearing work clothes and that he told her
that he was "running personal errands." (Tr. 132). When he asked for a company truck and cell
phone, she replied that only Ary could· authorize that. She said that after this conversation she
called Fisher to ask why Phillips was at the Cafion City office.
When Phillips went to work on September 13, he started doing some repairs on the jaw
crusher. Phillips testified that Fisher then drove up, told him he was fired, and then drove away.
(Tr. 40). Fisher testified that he asked Phillips where he had been the day before. Phillips
responded that he was in Delta, Colorado, working with Ary and Barnhart at a pit there. (Tr.
117). Fisher testified that he knew Phillips was lying because Gonzales had called and told him
he was at her office in Cafion City on September 12. Fisher called Ary to tell him that Phillips is
no longer a dependable employee and that he "just can't use him" anymore. (Tr. 117). He also
3

Fremont Paving & Ready Mix and A & S are affiliated companies. Both A & S and
Fremont Paving have offices and other facilities at the same location in Cafion City.
31FMSHRC1393

called Gonzales. Phillips left the pit and went to the office at Fremont Paving. On the way there,
he talked to Ary and Ary confirmed thathe was terminated:" (Tr. 149-50).
Phillips testified at the hearing that he does not know why he was fired. (Tr. 72). Phillips
believes that the stated reason that the company gave for terminating him was a pretext, but he is
not sure why he was actually terminated. (Tr. 77). He said that the "main" reason he filed the
complaint is because ether people were passing him by and getting various benefits, including a
company truck. (Tr. 75-76). He alleged at the hearing that people who have been caught driving
under the influence of alcohol ("DUf') have been given access to company trucks. He said that
he complained about this to Fisher on a number of occasions. (Tr. 78). Fisher testified that
Phillips never complained to him about employees with DUls in their driving records. (Tr. 11415).
Fisher testified that he terminated Phillips because he was no longer a dependable
employee. (Tr. 118). Phillips did not show up at work on September 12 and he did not call in
advance to tell Fisher that he would not be there. Fisher also testified that he never would have
authorized Phillips to buy supplies at an Ace Hardware in Canon City because the company
employs a "parts guy" who would have bought the supplies in Pueblo. It is about a two hour
round trip drive from the Evans Pit in Pueblo to Caiion City. (Tr. 119).
· Phillips admitted that the company performs random drug and alcohol testing and that the
night crew was tested for alcohol ori June·26, 2007. (-Tr..64). Phillips testified that one ., , .·
individual tested positive as a result ofthis testing, but he was not fired. (Tr; 64-65). · Gonzales,
who snpervised this test, testified that nobody tested positive for alcohol as a result of this test. _,
·(Tr. 12-9-30). Gonzales also testified that the company'obtafus a driving record report on e:very ·
employee when they are hired and annually thereafter. {Tr. 136-38). The.company's insurance
carrier notifies her if an employee's drivers license has been suspended. This insurance carrier is
''very stringent" with respect to Dills and will exclude from coverage an·employee with a recent
DUI. (Tr. 137). When an employee receives a DUI, he is usually terminated from employment.
II. DISCUSSION WITH FURTHER FINDINGS
AND CONCLUSIONS OF LAW
Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any
protected right under the Mine Act. The purpose of the protection is to encourage miners "to
play an active part in the enforcement of the [Mine] Act" recognizing that, "if miners are to be
encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation." S. Rep. No.
95-181 at 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., Legislative History of the Federal Mine Safety and Health Act of 1977 at
623 (1978).

31FMSHRC1394

';

·:.·

A miner alleging discrimination under the Mine Act establishes a prima facie case of
prohibited discrimination by presenting evidence sufficient'to support a conclusion that he
engaged in protected activity and suffered adverse action motivated in any part by that activity.
Secretary ofLabor on behalfofPasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-800
(October 1980), rev 'don other grounds, 663 F .2d 1211 (3d Cir. 1981 ); Secy ofLabor on behalf
ofRobinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981); Driessen v.
Nevada Goldfields, Inc,.., 20 FMSHRC 324, 328 {Apr. 1998). The mine operator may rebut the
prima facie case by shoWing either that no protected activity occurred or that the adverse action
was in no part motivated by the protected activity. Pasula, 2 FMSHRC at 2799-800. If the mine
operator cannot rebut the prima facie case in this manner, it nevertheless may defend by proving
that it was also motivated by the miner's unprotected activity and would have taken the adverse
action for the unprotected activity alone. Pasula at 2800; Robinette, 3 FMSHRC at 817-18; see
also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987).

A. Protected Activity
I have previously h~ld that complaining about alcohol use is protected under section
105(c) of the Mine Act because it directly relates to employee safety. Fletcher v. Morrill Asphalt
Paving, 24 FMSHRC 232, 239 (Feb. 2002) ... In the present case, however, I find that it was not
established that Phillips engaged in protected activity or that the company terminated him tr'om , , ,, ..
·his: einp1oyment as a result of any protected activity. ·
Much ·of the testimony of Phillips was internally inconsistent and was contrary to the
objective facts established at the hearing. For ,example, in his .complaintof discrimination, .. .
Phillips said that while he was at the scene of the, accident, Fisher '~approached~' him. (Ex. A)~ , i
At the hearing, he testified that he had an extended~conversation with Fisher aboutMcMulleu's ,,
alcohol abuse that day and that Fisher agreed·with him that McMullen had been drinking and that
he should be fired. {Tr. 23-26, 51-52). He also testified that he used Fisher's cell phone to call
Ary that day. {Tr. 42-43). Yet, the objective evidence establishes that Fisher was in New
Mexico when these events occurred. A & S presented Fisher's credit card statement to show that
he charged meals and other items in New Mexico with his Visa card during this period. (Ex. N).
Phillips testimony on this issue is not credible.
Phillips also testified that he complained about the smell of alcohol on McMullen's
breath on or about September 8. 2007. He said that when he complained about this to Fischer,
Fisher responded by saying "I don't know what we are going to do with this guy." (Tr. 43-44).
Fisher testified that Phillips never said anything to him about McMullen's breath or alcohol use.
fu his discrimination complaint, Phillips stated that he had a discussion about McMullen with
Ary that day and Ary told Phillips to mind his own business. (Ex. A). At the hearing, he
admitted that he did not discuss McMullen with Ary. Gonzales testified that she reviewed
McMullen' s payroll records for September 2007 and that a time card for McMullen could not be
located for September 8, 2007. To make sure that his time card for that day had not been
misplaced, she checked the payroll records to see how many hours McMullen worked that week.

31 FMSHRC 1395

,.. .. ~

She discovered that he worked 48.5 hours the week that included September 8 and that this time
was fully accounted for by the hours he worked on the othcl days that week. (Tr. 133-36).
Consequently, she testified that McMullen was not paid for any work on September 8. I note that
September 8, 2007, was a Saturday and it would appear that McMullen was not at work that day.
It is possible that Phillips was mistaken about the exact date, but his account of the events is
otherwise inconsistent.
At the hearing; Phillips alleged that A & S allowed employees with suspended drivers
licenses to operate company trucks and other mobile equipment. (Tr. 76-78). He said that these
licenses were suspended by the State of Colorado due to DUI infractions. This allegation was
not contained in his complaint of discrimination. I fmd thatthis allegation is not credible and I
credit the evidence presented ·by A & S to rebut this allegation. Gonzales testified that ·
employees who are given DUI tickets are usually terminated because all employees are expected
to be able to operate trucks or other mobile equipment. A companythe size of A & S would not
take such a risk because it is unlikely that its insurance carrier would cover any liability for
accidents caused by these employees.
Based on the above, I find that it was not established that Phillips engaged in protected
activity. There was no credible proof that McMullen was under the influence of alcohol at the
.. pit. leredit Barnhart' s testimony in this regard. I credit the testimony of Ary and Gonzales :· ·
concerning the company's substance abuse policies., .l ·als(,) credit the testimony of Fisher and ,,.
Barnhart that Phillips did not communicate any concerns about the use of alcohol to company
management. ·Phillips' testimony with respect to these issues was not credible. ·.
·s~ Adverse Action

Even ifl assume that Phillips engaged in protected activity, I find that it was not
established that his termination from employment was motivated in any part by complaints about
alcohol use. In determining whether a mine operator's adverse action is motivated by the miner's
protected activity, the judge must bear in mind that "direct evidence of motivation is rarely
encountered; more typically, the only available evidence is indirect." Sec '.Y ofLabor on behalfof
Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510(November1981), rev'd on other
grounds, 709 F.2d 86 (D.C. Cir 1983). "Intent is subjective and in many cases the discrimination
can be proven only by the use of circumstantial evidence." Id. (citation omitted). In Chacon, the
Commission listed some of the more common circumstantial indicia of discriminatory intent:
(1) knowledge of the protected activity; (2) hostility or animus toward the protected activity; (3)
coincidence in time between the protected activity and the adverse action; and (4) disparate
treatment of the complainant.
All of the company's witnesses denied that Phillips communicated any concern that he
could smell alcohol on the breath of McMullen. I credit that testimony as well as the testimony
of Barnhart that he would have had McMullen tested ifhe suspected that McMullen had been
drinking. There is no credible evidence that company mangers displayed hostility or animus
31FMSHRC1396

toward the protected activity. I credit the evidence presented by A & S that its managers do not
tolerate the use of alcohol or drugs and that, if anyone is caught under the influence of these
substances while working at the pit, they will be subjected to testing and termination if the test
results are positive. There is coincidence in time between the alleged protected activity and his
termination. Disparate treatment is not an issue in this case.

I find that the re.ason A & S gave for Phillips' termination was not a pretext for an
unlawful dismissal. A & S terminated Phillips eariier in the summer of 2007. Phillips testified
that this termination was not the result of his alleged protected activity. Ary rehired Phillips
because he wanted to give him a second chance and the company needed a mechanic for the
wash plant. Phillips' description of the events of September 11through13 is not very credible.
Fisher testified that he never gave Phillips permission to buy supplies for.the pit in·Cafion ·City on
September 12 rather than work at the wash plant that day. I credit this testimony. 11ie pit and
crusher facilities were operating full bore at that time. Because it vibrates, the wash plant is
prone to mechanical breakdowns and Phillips was needed to make repairs to keep the plant in
operation. (Tr. 87). It is highly unlikely that Fisher would have wanted Phillips to take .the day
off so he could get a stretcher and miscellaneous supplies in Canon City. Gonzales testified that
Phillips told her he was rwllring personal errands that day. Fisher testified that when he asked
Phillips why he was not at work on September 12, Phillips replied that he was working at another
·pit·:with Bartihart. I find that the decision ofA & S to temtinate, Phillips was not at all:related to
'-oofilplaints· about alcohol use.

III. ORDER
For the reasons set forth above the discrimination complaint filed by PeterJ. Phillips
· against A & S Construction Company under section 105(c) ofthe Mine A · DISMISSED.

Richard W. Manning
Administrative Law Juµge

Distribution:
Peter J. Phillips, P.O. Box 41, Florence, CO 81226 (Certified Mail)
Richard Ranson, Esq., Ranson & Kane, PC, 3475 Briargate Blvd, Suite 201, Colorado Springs,
CO 80920 (Certified Mail)

RWM

31 FMSHRC 1397

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENlJE N. W., SUITE 9500
WASHINGTON, D.C. 20001

November 18, 2009
CIVILPENALTYPROCEEDINGS

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

Docket No. WEVA 2007-712
A.C. No; 46-01433-121119

v.
.
'

·J.

.

Docket No. WEVA 2008-308
A.C. No. 46-01433-132560

:·•••

Docket No.· WEVA 2008-1536
A. C. No. 46-01433-155218 .
CONSOLIDATION COAL COMPANY,
Respondent

Loveridge No. 22 Mine

DECISION

.Appearances: John Strawn, Esq1, Office of-the Solicitot,:U$. Department ofLabor,,Philrulelphia,
· ·
· : ·· ·. ·.· '·· · ·
Pennsylvania;.(>nbehalf of the.Petitioner;
Rebecca Oblak, .Esq.~.Bowles,:·Rice, .McDavid Graff & Love, LLP, Morgantown,
West Virginia, on behalf of the Respondent.
··.!

....

. 'Before:·. . ,:_ · Judge Melick
:·...

. , . ..

·. These cases are before me upon petitions for ~ivil penalty filed by the Secretary of Labor
pursuant to section 105(d) of the Federal Mine Safety and Health Act ofl977.;30 US.C. § 801 et
seq., the "Act," charging Respondent Consolidation Coal Company(Consol) with multiple violations
of mandatory standards and proposing civil penalties for those violations. The general issue before
me is whether Consol ·violated the cited standards as charged and, if so, what is the appropriate civil
·penalty for those violations. Additional specific issues are addressed as noted. Decisions approving
partial settlements of a number of charging documents have been issued in these proceedings so that
only the four charging documents discussed herein remain for decision.
Order Number 7100826

This order, issued pursuant to Section 104(d)(2) of the Act, alleges a "significant and
substantial" violation of the standard at 30 C.F.R. § 75.400 and charges as follows: 1 2
1

Section 104(d) of the Act provides, in relevant part, as follows:

(1) If, upon any inspection of a coal or other mine, an authorized representative of the

Secretary finds that there has been a violation of any mandatory health or safety standard,
31 FMSHRC 1398

Combustible material in the form of damp loose coal and coal fines is being allowed to
accumulate under he 10-D Section, 065-0 MMU, coal conveyor belt from 14 Yz block to 15
Yz block for a distance of 140 feet. The accumulation is up to 10 inches in depth under the
bottom belt and is rubbing the bottom of the belt and accumulating to the extent at which it
is pushing the bottom belt up into the belt structure. Several bottom rollers in the cited area
are completely covered in coal fines. There is one stuck roller located at 15 block within the
area. The mine operator has engaged in aggravated conduct constituting more than ordinary
negligence.· This· violation is an unwarrantable failure to comply with a mandatory standard.
The cited standard provides that "[c]oal, dust, including float coal dust deposited ·on rockdusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be
·permitted to accumulate in active workings, or on diesel-powered and electric equipment therein."
Jeremy Ross, an inspector for the Department of Labor's Mine Safety and Health
Administration (MSHA), has a degree in mechanical engineering from the West Virginia University
and several years of industry experience. On May 29, 2007, Ross was conducting an inspection at
the Loveridge No. 22 mine_ as part of a regular quarterly inspection and a five day spot inspection
for methane. Inspector Ross was accompanied by MSHA trainee·Chad Curranc~ Respondent's
safety representative Jeff,Taylor, and by United Mine Work~ of America (UMWA) Safety
!

and ifhealso·finds that, while.the'conditionscreated-bysuch violation do not cause· .
imminent danger~ such violation is of such nature as could'significantly and substantially
contribute to the cause and effect of a coal or· other miner safety or health hazard, and ifhe
·. finds such violation to be caused by an unwarrantable· failure of.such operator to cotiiply·
With such mandatory health or safety standards; he shall include such finding in any< .· ·
citation given to the operator under this Act. If,· during .the same inspection or any ·
subsequent inspection of such mine within 90 days after the issuance of such citation, an.
authorized representative of the Secretary finds ·another violation of any mandatory health
or safety standard and finds such violation to be also caused by an unwarrantable failure
of such operator to so comply, he shall forthwith issue an order requiring the operator to
cause all persons in the area affected by such violation, except those person referred to in
subsection (c) to be withdrawn from, and to be prohibited from entering, such area until
an authorized representative of the Secretary determines that such violation has been
abated.
(2) If a withdrawal order with respect to any area in a coal or other mine has been issued
pursuant to paragraph (1 ), a withdrawal order shall promptly be issued by an authorized
representative of the Secretary who finds upon any subsequent inspection the existence in
such mine of violations similar to those that resulted in the issuance of the withdrawal
order under paragraph (1) until such time as an inspection of such mine disclosed no
similar violations. Following an inspection of such mine which discloses no similar
violations, the provisions of paragraph (1) shall again be applicable to that mine.
2

There is no dispute that the precedential orders required by Section 104(d)(2) existed.
31FMSHRC1399

Committee representative RichardHarrison.3 The inspection party traveled to the 10-D Section, 0650 MMU. The purpose of the section was to develop a longwall panel and Respondent was behind
schedule at the time of the inspection.
The inspection party traveled to the face of the 10-D section and then proceeded outby
through the belt entry. . Respondent was utilizing a continuous haulage system in the section
consisting of a mobile belt called. a flexible conveyor train (FCT) and a stationary belt called a
"dynamic move up" (DMU). The FCT was 570 feet long and operated immediately behind the
continuous miner. The FCT transferred coal from the continuous miner to the stationary DMU belt.
The DMU belt was 760 feet long and transferred the coal in turn onto the pennanent section belt.
The outby end of the FCT was connected to the DMU and rode back and forth on rails on top of the
DMU belt. As the miner tranimed forward or backward, the FCT rode forward and backward in ·
unison. When the section belt was advanced, the FCT would be secured on top of.the DMU. The
DMU would then propel the tandem forward and pull·the section belt along behind.
According to Inspector Ross, there was an accumulation of combustible material stretching
over 140 feet from 14 Yz ]?lock to the 15 Yz block under the DMU conveyor. He testified that loose
coal and coal fines extended the width of the belt (approximately 60 inches), and varied from two
to ten inches in depth. He found that the coal was deepest at the.outby·end near the DMU drive unit
but that it w~ also up,JO inches deep inbyatseveralother locatiotts. The coal was black in color.
and most ofit was dry.
.
The belt was running when the inspectors fitstobserved.itsometime between 10:22 a.m. and
,' 11: 15 .a.m.. but rio. coal -was loaded· on the,belt . Aft¢r:. the. belt was shut ~down..Jnspector Ross
. examined the accumulation withhis walking stick:anddiscovered at-least thr~ buried rollers~ The·

insp.ectors testified that after the violation had been abated~and the accumulation had been removed,
they discovered additional rollers which had been buried and hidden from view; In the deepest part
of the accumulation they found that the coal had pushed the lower belt up· so that it was no. longer.
in contact with the rollers. The belt was riding in the coal and rubbing against the belt structure at
that location.
Inspector Ross opined, based on his observations and discussion with Respondent's Project
Engineer/Foreman, Brooks Barker, that the accumulation had been created by carry-back spillage.
The scrapers on the belt were not removing all the particles of coal from the DMU belt where it
dumped onto the permanent section belt. As a result, some of the coal was sticking to the underside
of the lower belt and it was carried back inby until it fell off the belt onto the mine floor.
The credible observations of Inspector Ross were also corroborated, in significant respects,
by Inspector Currance and by UMWA safety representative Harrison and their testimony clearly
supports a violation as charged. In reaching this conclusion I have not disregarded Respondent's
3

At the time of hearings Trainee Currance had become a qualified MSHA inspector (Tr.

505).
31FMSHRC1400

arguments that the accumulation did not consist of coal but rather of incombustible rock from the
mine floor. However, I find the Secretary's evidence to the contrary to be more credible. The
Secretary's witnesses found that the accumulation was black while the bottom rock on the mine floor
was gray.
They squeezed the material and it crumbled like coal. It did not ''ball-up"like other material
or mud would have .. They also found that the coal also reflected light differently than rock would
have and concluded from its weight and texture that it was coal rather than rock. Even Respondent's
witness, Brooks Barker, admitted that the bottom rock was easily distinguishable from coal. Under
the circumstances and considering the credible testimony of Inspector Ross, corroborated in all
significant respects by Inspector Currance and UMWA representative Harrison, I have no difficulty
finding that; indeed, the cited accumulation consisted of coal.
Respondent argued alternatively that, even if the accumulation was coal, it was created by
rib sloughage rather than created over· time by carry-back spillage. The credible testimony is,
however, that there were not large pieces of coal in the accumulation, thus indicating that the coal
had been mined by the continuous miner and had not fallen in larger pieces from the rib.
The Secretary alleges that the violation was "significant and substantial". A violation is
· properly designated as "significant and substantial" if, based on the particular facts surrounding,that.
violation, there exists a reasonable likelihood that the hazard contributed to wilLresult in an injury
or illness of a reasonably serious nature. Cement DivisiQn; National Gypsum Co., 3 FMSHRC 822,.
825 (April ·'1981); . In Mathies Coal Co., 6 FMSHRC 1, 3.:4 (January 1984), the Commissfon
explained: , ,
. ·, :
In order to ·establish that a violation of a mandatory standard is significant and substantial ·
under National Gypsum the Secretary must prove: . (1) the underlying violation of .a
mandatory safety standard, (2) a discrete safety hazard - - that is, a measure of danger to
safety - - contributed to by the violation, (3) a reasonable likelihood that the hazard
contributed to will result in injury and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.

See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g
9 FMSHRC 2015, 2021(December1987) (approving Mathies criteria).
The third element of the Mathies formula requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in which there is an injury. U.S. Steel
Mining Co., 6 FMSHRC 1834, 1836 (August 1984). and also that the likelihood of injury be
evaluated in terms of continued normal mining operations. U.S. Steel Mining Co., Inc., 6 FMSHRC
1573, 1574 (July 1984); See also HaijWay, Inc., 8 FMSHRC 8, 12 (Jan.nary 1986) and Southern Ohio
Coal Co., 13 FMSHRC 912, 916-917 (June 1991).

31FMSHRC1401

I have found that the first element has been established i.e. that there was an extensive
accumulation of combustible material iri violation of 30C.F.R. § 75.400. Based on the credible
testimony I also find that the accumulation contributed to a discrete safety hazard by creating a fire
danger to miners working or traveling in the belt entry. The second element is therefore also
established. I also find that the credible testimony establishes a reasonable likelihood of a belt fire
occurring because the loose coal accumulation was extensive and ignition sources were present. A
number of rollers and.the belt were running in the coal and had begun heating and drying the coal.
The belt was also rubbing the belt structure itself. The inspectors observed the coal crusting over
where the rollers and belt had been running in the accumulation evidencing that the resulting friction
had already begun heating the coal. The credible evidence also shows that, in addition to being black
and dry, the coal was also made of small particles which are easier to ignite and make a fire that
much more likely.·
The existence ofthese factors clearly establishes the third element under the Mathies criteria.
See Mid-Continent Resources, 16 FMSHRC 1218, 1222 (June 1994) and Amax Coal Company,
19 FMSHRC 846, 849(May1997). The fourth element of the Mathies test requires the S.ecretary
to establish that the injury will be of a reasonably serious nature. The credible evidence establishes
that the injuries to the miners would include smoke inhalation, carbon monoxide poisoning, and
burns. These are of a serious nature and accordingly I find that the Secretary has met her burden of
proving that the violation was "significant and substantial" and of high gravity.
- .: '

..

.

~

. .·'
:

. .:·,.

;

.. ,

-. ·l gfso;·find·that the violation was the result of high negligence and ''unwarrantable failurd.' ,
· to comply with the cited standard. Unwarrantable failurejs "aggravated conduct, constituting inore .
than ordinary negligence, by a mine operator in relation to a violation of the Act.•• Emery Mining ,
Corp., 9 FMSHRC 1997, 2004 (December 1987). Unwarrantable failure is characterized ·by such .
. conduct as ~'reckless disregard,'' "intentional misconduct," ''indifference," or a "serious lack of:
reasonable care." Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94
{February 1991); see also Rock of Ages Corp. v. Secretary ofLabor, 170 F.3d 148, 157 {2d Cir.
1999); Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) {approving Commission's
unwarrantable failure test). Moreover, the Commission has examined the conduct of supervisory
personnel in determining unwarrantable failure and recognized that a heightened standard of care
is required of such individuals. See Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011
{December 1987), S&H Mining, Inc., 17 FMSHRC 1918, 1923{November1995).
This Commission, in determining unwarrantable failure, has considered whether an
operator's conduct was aggravated by looking at all the facts and circumstances to see if any
aggravating factors exist, such as the length of time that the violation existed, the extent of the
violative condition, whether the operator wasp laced on notice that greater efforts were necessary for
compliance, the operator's efforts in abating the violative condition, whether the violation was
obvious or posed a high degree of danger, and the operator's knowledge of the existence of the
violation. Lopke Quarries, Inc., 23 FMSHRC 705, 711 {July 2001). The credible testimony
establishes in this case that the coal accumulation was obvious and extensive. The loose coal and
coal fines extended over 140 feet and even lifted the belt off some rollers. Moreover it took ten
31 FMSHRC 1402

miners working for over six hours to re.move the coal. The accumulation also exposed the miners
who worked and traveled in the belt entry to ·a belt fire iif'a gassy mine with ignition sources. This
evidence, alone, is sufficient to establish high negligence and unwarrantable failure.
I also find, however, from the credible testimony of the inspectors and UMWA safety
representative Harrison, that the accumulation had existed over multiple shifts. The frictional
heating by the belt and-rollers had dried out and crusted over the accumulation. The credible
testimony shows that this would have taken more than one shift, since the coal spillage from the belt
is initially wet due to belt sprays designed to keep the dust down. In addition, the accumulation was
formed by carry-back spillage and would have taken several shifts to cover the 140 foot area.
Respondents' s records also show that the accumulation· had existed for several days without
attention. Respondent's production records indicate that only 15 5 tons of coal were produced and
carried on the DMU belt on the midnight shift prior to the inspection on Tuesday, ~ay 29, 2007.
The credible record shows that this would have been insufficient to create the 140 foot accumulation
observed by the inspectors. The belt had been idle for three days prior to the inspection because of
Memorial Day weekend May 26, 27, and 28, 2007. On Friday, May 25, 2009, Respondent produced
more than ten times the amount it did on the midnight shift May 29, 2007 (Govt. Exh. 5 at pp. 5, 6
of 13). Over 1,600 tons of coal had been produced which could have created sufficient carry-back
spillage to result in the condition observed by Inspector Ross. This evidence, alone, is sufficient to
establish high negligence and unwarrantable'failure.
• j , ·'

'Ifurther :rmd that Respondent was on notice.that greater-efforts were required to comply with

the cited standard~ .Inspector Ross cited the same DMU belttwice'.within the prior two months for
other Serious accumulations. He issued. Order No .. 7100729 omMarch 30, 2007 and Citation No.
7100732 onAprit9, 2007 (Gov't Exhs. 6.and7). Mr.-Barkerwas in charge ofthe DMU through this .
period. Ross held a meeting with mine management~ includirig the stip~tendent, mine foreman,
safety director~ on April 3, 2007, prior to the subject quarterly inspection and emphasized the
need to keep the DMU conveyor unit clean and to prevent accumulation of coal.. In addition,
Respondent received 104 citations and orders for violations of 30 C.F.R. § 75.400 in the fifteen
months prior to the subject order (Gov't Exh 15). This evidence, alone, is sufficient to establish high
negligence and unwarrantable failure. ·

and

Finally, it is apparent that Respondent's Project Engineer/Foreman, Brooks Barker, had
actual knowledge of the cited accumulation under the DMUbelt. Barker told the inspectors that the
DMU conveyor belt was having ongoing spillage problems because the belt scrapers were not
removing the smaller particles of coal from the belt. He stated that he had therefore removed the belt
scraper (10 days earlier, on May 19, 2007) and sent it to an outside contractor for modification.
When the inspectors asked where the scraper had been positioned before it had been removed,
Barker stated that it was located where the accumulation was. Significantly, Barker had just arrived
on the section and had not yet arrived at the cited area. Despite his awareness of the spillage
problem, Barker allowed production to continue while waiting for the scraper to return from the
contractor. Indeed, Barker stated that the spillage problem pre-dated the first two citations
Respondent received on the DMU on May 30, 2007, and April 9, 2007. This evidence is sufficient

31 FMSHRC 1403

to independently establish high neglig<m.c~ ,and unwamµ1table failure. Under the circumstances it
is clear that the Secretary has sustained>her.burden of proving that the violation at bar was the result
of high negligence and unwarrantable failure.
Citation Number 7100823

This citation, issued by Inspector Ross on May 29, 2007, under Section 104(a) of the Act,
alleges a "significant and substantial" violation ofthe standard at 30 C.F.R. § 75.1722(a) and charges
as follows:
The return wire rope pulley for the miner cable tensioner on the 10-D Section DMU
'coal conveyor unit is.not provided with-a guard to prevent persons from coming in
contact with the pulley. The pulley is 14 inches in diameter, 24 inches off of the
mine floor, and directly along the side the 10-D Section belt travelway. The
travelway is 36 inches wide at this location. Miners are required to walk the belt
each shift to conduct an examination.
The cited standard provides that "[g]ears; sprockets; chains; drive, head, tail, and takeup
pulleys; flywheels; couplings, shafts; sawblades; fan inlets; and similar exposed moving machine
parts which may be contacted by persons, and which may cause injury to persons shall be.guarded."
During his: inspection 011 May 29; .2007, Insp.ector Ross observed that the return wire rope· .·
. pulley on theDMUcoal conveyor unit was unguarded. There is nodi8pute thaHhe pulley had never -.
been guarded'and that it was provided.by the manufacturer without guarding. ·.The pulley was located
.alongside the walkway where miners travel and. the walkway was about thirty-six inches wide· at this
.point. This walkway was also muddy and slippery thereby, :according·Jo inspectorRoss, increasing
. the risk that miners could slip and fall into the pulley (Govt. Exh. 4 p.3of 8 and Gov't Exh. 8).
Within this framework of credible evidence it is readily apparent that the cited pulley "may
be contacted by persons and which may cause injury to persons" thereby requiring guarding. I do
not find, however, that the violation was "significant and substantial" or was the result of high
negligence. I find that the Secretary has failed to sustain her burden of proving that there. was a
reasonable likelihood that the hazard contributed to would result in an injury and a reasonable
likelihood that the injury in question would be of a reasonably serious nature. In this regard, it is
undisputed that the cited pulley is generally stationary and when it moves it travels very slowly i.e .
.85 miles per hour. There is also credible evidence that some protection was provided by the design
and location of the troughs. Finally, there is evidence that MSHA inspectors including Inspector
Ross had examined the section at issue on five occasions between March 30, 2007, and May 29,
2007, and failed to find any violation regarding the subject pulley. If, indeed, there had been such
a serious hazard at this location it is unlikely that it would have repeatedly been overlooked by
experienced MSHA inspection teams. Indeed, another violation was cited at the very same location
on April 26, 2007 ,(Citation number 6604312) which required guarding along the DMU and past the
location of the pulley in question.
31 FMSHRC 1404

As previously noted, I also find that the violation was the result of low to moderate
negligence. Respondent relied in part o:il the fact that the manufacturer did not provide any guarding
at the cited pulley, and the fact that some guarding had been provided by the design and location of
the troughs located in front of the pulley. fu addition, MSHA inspectors themselves during five
recent prior inspections, including one at the very same location of the DMU conveyor unit, had not
seen fit to have cited or even warned the Respondent of what has now been deemed by the Secretary
to have been a "signifiGant and substantial" violation. The violation alleged in Citation Number
7100823 and the penalty proposed by the Secretary for that citation must accordingly be modified.
Order Number 7100827

· ' This order; issued on May 29; 2007; under Sectionl 04(d)(2}ofthe Act, alleges a "significant ·
and substantial" violation of the standard at 30 C.F.R. § 75.360(a)(l) based on the findings of
Inspector Ross that the preshift examination for the day shift on May 29, 2000, was inadequate
because there was a failure to record two hazardous conditions, namely, the unguarded return wire
rope pulley on the DMU coal conveyor unit (Citation Number 7100823) and the accumwation of
combustible material exis~g over 140 feet from the 14 Yz block to the 15 Yz block under the DMU
conveyor (Order No. 7100826).
. The cited standard provides in part as follows:

Except as provided in paragraph (a)(2).oftbis· section; ··a.certified:. person designated by the
'operator nilist make a preshift. examination within 1 hours ·preceding the beginning ofany
··8-hour interval during which, any person: is scheduled to work or travel underground. · No
.petsoi1 other than certified examiners may .enter or temai1r in. any underground area unle8s .·
. a preshift examination has been completed for the established 8,-hour interval.•The operator '
must establish 8-hour intervals of time subject to the required preshift examinations.
As previously discussed in connection with the underlying order (No. 7100826), the coal
accumulation was extensive and Consol had been cited twice before within a two month period for
serious accumulations at the same locations (Govt. Exh. 6.·and 7). In addition, Inspector Ross had
met with Consol management on April 3, 2007, prior to the subject inspection and emphasized the
need to keep the DMU conveyor unit clean to prevent the accumulation of coal. Finally, as
previously discussed, Respondent's own project engineer/foreman, Brooks Barker, had actual
knowledge of the accumulation but did not ensure that it was recorded and/or addressed. Under the
circumstances, it is clear that the Secretary has met her burden of proving the violation herein.
For this same reasons that the underlying violation was found to be "significant and
substantial" the instant violation was also "significant and substantial". The failure to report and
correct such significant and hazardous violations is likewise a "significant and substantial" violation.
The violation herein was also the result of high operator negligence and ''unwarrantable failure" to
comply with the cited standard. The Respondent's mine examiners are agents of the operator and
their failure to report the extensive coal accumulation is properly imputed to the Respondent.
31 FMSHRC 1405

Rochester and Pittsburgh Coal Company
13FMSHRC189,195-196
(February 1991). For the
.
J
- .
~.

reasons previously stated with respect to the 'underlying vk>fation, failure to report that violation was
also the result of high operator negligence and ''unwarrantable failure".
Order Number 7100548

This order,-issaedonFebruary27, 2007, under Section 104(d)(2) of the Act, alleges another
"significant and substantial" violation of the standard at 30 C.F.R. § 75.360(a)(l) and charges as
follows:
The pre-shift examination for methane and hazardous conditions that was conducted on
02/2712007for the day shift crew on the8-D longwall, 062.:o MMUsection is inadequate in·
that the hazardous conditions described in violation #7100547 were not reported in the
operators records of examinations and had not been corrected at the time of this inspection.
The following conditions were obvious to this inspector as soon as he entered the effected
[sic] areas. The record book indicates that only condition that exist [sic] is the area from #53
block to #50 bloc1' needs dusted, this condition has been entered in the record book for the
past 9 shifts. The listed conditions would be obvious to any prudent person especially
examiner's charged with the responsibility ofconducting an examination of the mine. The
mine operator was. previously put on ,notice for .the same type of conditions. The· mine
operator has engaged in aggravated conduct constituting more than ordinary negligence.
This violation is an unwarrantable fail1ire to comply with a mandatory standard. · · •
MSHAinspector Ronald Postalwaittestified thaton February27, 2007, he inspected the 8-D
longwall belt, 062..:0 MMU section at the mine as a part.of a regular·q:uarterlyinspection and five day
i spot inspection.for ·methane. Postalwait was ;accompanied. on~ bis. inspection by UMWA safety
representative Samuel Woody and Respondent's safetyrepresentativeJohn Larry. The longwall belt
transfers large amounts of coal from the longwall to the surface.
Postalwait observed what he considered to be large accumulations ofloose coal and coal dust
along the belt stretching over 3,500 feet. On the basis of these accumulation, he issued Order No.
7100547 for a violation of 30 C.F.R. § 75.400. This order was settled prior to trial and is now a
finaI order of the Commission. The facts underlying Order No. 7100547 are therefore established
for purposes of these proceedings and cannot now be challenged. Peabody Coal Co., 11 FMSHRC
2068, 2092 (October 1989); Ranger Fuel Corp, 10 FMSHRC 612, 617-619 (May 1988). In any
event, an independent review of the facts supports the violation herein as charged.
Inspector Postalwait issued Order No. 7100547 for a Section 104(d)(2) violation of30 C.F.R.
§ 75.360(a)( l) because the hazardous belt accumulations were not recorded in the day shift preshift
examination report. The preshift was performed between 5:00 a.m. and 7:00 a.m. that morning by
Michael Fleece. Postalwait discovered the accumulations at approximately 11: 15 a.m. According
to the credible testimony of Postalwait, the accumulations he observed were extensive. Loose coal
and coal fines extended from the 64 block to the 62 block and from the 53 block to the 48 block.
31 FMSHRC 1406

The accumulations were on both sides ofthe belt and me~ed from two inches to five inches deep.
·one foot to three feet. Coal dust
The combined width of the accumulations varied '
accumulations stretched from the 64 114 block to the 57 block, from the 53 block to the 48 block,
and from the 42 block to the 39 block. Both the loose coal and coal dust accumulations were black
in color and powder dry. UMWA representative Woody agreed with his description of the
accumulations. Woody's contemporaneous notes further corroborate the testimony.

frOm

Based on the credible and corroborated testimony, I find that the accumulations cited were
obvious. The coal dust accumulations stood out because they completely blackened the previously
rock-dusted surfaces in the entry including the mine floor, ribs, belt structure, water line, and roof
supports straps. There were also footprints in the coal dust in the walkway which were in plain view.
Woody agreed with the-inspector and testified that the conditions were very obvious.
Postalwait opined that the accumulations had existed for more than a shift and should have
been observed and reported by the preshift examiner. He concluded that the loose coal
accumulations had been formed by belt spillage. He noted that coal from the belt is wet because of
the water sprayed at points _along its length used to keep dust down. However, when he examined
the accumulations by hand he found that they were dry throughout. According to the credible
testimony by Postalwait it would have taken m9re than one shift for the loose coal to have dried out
•to the extent· he. observed. Furthermore, he·observe9. that. the. air flow:. in; the belt entry was. low ,
· (approximately70 feet per minute) and he.concluded.thereforethatit would have take_µ,moi;-ethan _
one shift for this air flow to dry the accumulations. He <'>pined m9feover that.it would have ·taken·.
more than one shift for this air flow to have spread .the coal dust .over the. 3,500 foot area. :Woody
agreed that the accumulations had existed prior to the preshift examination and that the ex:aminer .
· should have observed and reported them.
·
,.·. .·

-~~

...

The credible evidence also shows that the accumulations has been created some time before
and had been left uncorrected. According to Postalwait, when he observed the accumulations, no
spillage was being created by the belt. Mr. Woody agreed and testified that the belt was running true
during the inspection. According to the credible evidence there were no defects that were creating
coal dust at the time either. In addition, the bearings that had fallen out of five defective rollers cited
by Postalwait had been completely covered by coal dust. The loose coal accumulations had also
been covered with coal dust. Therefore the accumulations and defective rollers had not been created
simultaneously. The loose coal accumulation and defective rollers had occurred even earlier than
the coal dust accumulation. Within this framework of credible evidence, it is clear that the
accumulation had existed well before the day shift preshift examination of February 27, 2007, that
the conditions were obvious and accordingly, that the violation is proven as charged. Indeed,
Respondent's safety representative, Mr. Larry, acknowledged during the inspection that the
conditions cited by the inspector were a violation and should have been reported by the examiner.
For the reasons cited in the Secretary's post hearing brief I can give Mr. Larry's exculpatory
testimony at hearings but little weight.

31FMSHRC1407

I also find that the violation .was "significant and. substantial" and of high gravity.
Respondent's failure to report the accwririlations in the fortgwall belt entry clearly exposed miners
to serious hazards. ·Five belt rollers from the 60 block to the 57 block were missing bearings in the
midst of one of the cited coal dust accumulations. The bearings had failed and fallen out of the
rollers. The rollers were turning metal-on-metal on the inner shaft and both the shaft and the rollers
had turned a bluish color from the frictional heating. Indeed, Respondent's examiner, Mike Fleece,
agreed at trial that a blue color indicated that the metal had been heated. Inspector Postalwait has
seen rollers in this condition produce sparks and ignite coal. Sparks from the rollers would likely
also have ignited the coal dust on the mine floor below and on the belt structure. Furthermore the
rollers would likely also heat up the belt and ignite the coal dust on the belt structure. UMWA
representative Woody also agreed that the rollers presented an ignition source to the coal dust around
them.
The conditions in the mine made the likelihood of a fire great. This is a gassy mine and the
presence of methane could exacerbate any belt fire. Postalwait measured 0.45% methane at the 63
block in the longwall belt entry. The coal dust accumulations below and around the defective rollers
presented an enhanced risk of fire. The evidence confirms that these smaller particles of coal are
easier to ignite and, once started, can ignite larger pieces of coal.
The credible evidence also establishes that a nlimber of miners would have been exposed to
· serious injury-froin a belt fire. Examiners, belt cleanm; lilaintenarice :crew and other miners triwel '
· aridworl{on the belt. ;The stage loader operatorwas alsojust iilby.the accumulations and would also· ' .
have been affected by a fire. Finally, if a fire affected a ventilation control, the smoke from· the fire
· could travel to the face and endanger the face crew and miners fighting a fire would also have been
exposed to injury. Miners would likely sustain bums:, smoke inhalation, and carbon .monoxide .
poisoning. While I have not disregarded the exculpatory testimony of Mr. Larry, again, for the.
reasons stated in the Secretary's brief, I can give that testimony but little weight.

I also find that the violation was the result of high negligence and "unwarrantable failure".
The credible evidence is that the accumulations were extensive and obvious. The loose coal and'
coal dust accumulations extended from block to block over the 3,500 foot total length of the area.
The loose coal was up to three feet wide including both sides of the belt and were up to five inches
deep. Furthermore, the cleanup required eight miners working for almost four hours.
The credible evidence also establishes that the accumulations had existed for more than a
shift, had not been addressed and that they posed a high degree of danger to miners. Moreover,
Respondent had previously been placed on notice concerning problems with accumulations and with
inadequate preshifts. fuspector Postalwait credibly testified that he specifically discussed the issues
with the mine management including the superintendent during the previous two quarterly
inspections. In addition, the Respondent had received 16 citations/orders for violations of30 C.F .R.
75.360(a)(l) and 114 for violations of 30 C.F.R. 75.400 in the fifteen months prior to the issuance
of the subject order.

31 FMSHRC 1408

Civil Penalties
Under Section 11 O(i) of the Act, the Commission and its judges must consider the following
factors in assessing a civil penalty: the history of violations, the negligence of the operator in
committing the yiolation, the size of the operator, the gravity of the violation, whether the violation
was abated in good faith and whether the penalties would affect the operator's ability to continue in
business.
The parties have stipulated to four of the six penalty criteria i.e. the size of the business, the
history of previous violations, the good faith of the operator in obtaining compliance after the
issuance of the charging documents at issue, and the effect of the penalties on Respondent's ability
to continue in business. Respondent produced 67,404,718 coal in 2006 including 6;383,219 tQns at
the subject mine. ReSp<>ndeitt is accordingly a large mine. Respondent has been assessed for a total
of85 l charging documents based upon 689 inspection days in the 15 months immediately preceding
the issuance of charging documents Nos. 7100823, 7100826 and 7100827. Respondent received a
total of 973 charging documents based on 762 inspection days in the 24 months immediately
preceding the issuance of Order No. 7100548. There is no dispute that Respondent demonstrated
good faith in obtaining compliance after the issuance of the charging documents at issue herein.
Respondent does not contend that even the proposed penalties would affect its ability to continue
in·business. The.negligence and gravity of the violations at issue have .been discussed herein.

ORDER·
.Order Numbers 7100826, 7100827 and 7100548 are .affirmed.as written with civil peaalties
of -$60,000.00, $20;300.00, and $7 ,000.00. respectively. · Citation Number 7100823 ,is": hereby .
modified to: delete· the "significant and substantial" .findings. but is .otherwise affirmed with a.civil

~;::;d~~~~OO. The noted penalties, totalmg $87,600.00, sbal~i
days ofthe date

fr.tty

Meli~ \

Adminis~=ve La:~_udge

202-434-9977
Distribution:
John M. Strawn, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center,
Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
Rebecca Oblak, Esq., Bowles, Rice, McDavid Graff & Love, LLP, 7000 Hampton Center,
Suite K, Morgantown, WV 26505

/lb
31FMSHRC1409

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th STREET, SUITE 443
DENVER, CO 80202·2500
303-844-5267/FAX 303-844-5268

November 23, 2009
CNIL PENALTY PROCEEDING

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

Docket No. CENT 2008-721-M
A.C. No. 32-00837-159178-01
Docket No. CENT 2008-722-M
A.C. No. 32-00837-159178-02

v.
BEYLUND CONSTRUCTION, INC.,
Respondent

Mine: Crusher
DECISION

Appearances: Ronald Goldade, Conference and Litigation Representative, U.S. Dept. of Labor,
Denver, Colorado on behalf of Petitioner.
·
. . · . Steve B,~ylund, President, }:3eylund Constru~tion In~ .•
Bowman, North Dakota on behalf of Respondent.

Judge Mi:ller, .

. Before: .
' ~ ..

;

..

.

.

. '

~

·. ... ~ These :eases are before me. on petitions fi;>r assessment of civil penalty filed. by ~he . . . ,
Secretary of Labor ("Secretary''), Mine Safety and Health Administration ("MSHA") pursuant to .
section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., (the
"Act"), charging Beylund Construction, Inc. ("Beylund'') with a total of 18 violations of
mandatory standards and proposing penalties totaling $4,059 for those violations. The general
issue before me is whether Beylund violated the cited standards, and if so, what is the appropriate
civil penalty to assess in accordance with section 1lO(i) of the Act.
Beylund operates a scoria pit and crusher at its location in Ward County, North Dakota.
The parties submitted signed joint stipulations in which they agreed that, among other things, the
operation is a "mine" as defined by the Act, that the mine affects interstate commerce, that all
persons working at the crusher are "miners" within the meaning of the Act, and that the
Commission has jurisdiction to hear this case.
Prior to the hearing, the parties initiated a conference call with the Court. Mr. Steve
Beylund represented Beylund Construction, and the Secretary was represented by a Conference
and Litigation Representative ("CLR"). Mr. Beylund explained during the call that he preferred
for the Secretary to put on her case without him present, and suggested that he show up later for
31FMSHRC1410

·.--1

an hour to explain ·his side. He further explained that he didn't have a quarrel with the citations
that were issued, but wanted his day in ~ourt to protest the fact that MSHA was able to come
onto his property over his objection. I explained the purpose of the hearing to Mr. Beylund and
instructed him to bring any documents or photographs that he believed would help explain his
position, including any financial documents if he thought that his ability to pay the civil penalties
was an issue.
At the outset of.the hearing, Mr. Beylund again expressed his position that he had no real
issue with the violations as issued by the MSHA inspector. The parties signed and submitted a
stipulation that included provisions admitting that each violation occurred as set forth in the
citation. (Tr. 8, Ex. 27). When questioned, Mr. Beylund was unclear about what he had signed
and about what he intended to explain to the Court. Therefore, it was determined that the
Secretary,;s witness, MSHA inspector Shane Julien, would testifya8 to each violation and Mr. '
Beylund would then have the opportunity to ask questions and respond. During the course of the
hearing, Mr. Beylund once again stated that he admitted the violations and did not want to
proceed through each of the 18 citations that were issued, and instead preferred to use his time to
voice his dissatisfaction with MSHA. (Tr. 76-77).

·Findings of Fact
J;.-i ... ; .'

•., : ;

~ ... : ~ . '

'

1;

· · Beylurtd Construction, Inc. operates a scoria pit and crusher in remote North Dakota~ .In . ·
2001· an MSHA inspector discovered the Beylund pit and crusher operation after noticing a :.. ·.
nunibeN>fBeylund trucks haulmg material near Bowman, North Dakota.·. Because no~one was ·•·•
· presentat the mine~:the inSpeetot left his business card on the ferice. (Tr. 19)~ In January 2008~- ·
Mr~. Beylund called the MSAA office iii Rapid City, South Dakota. The office 8upervisot;. . , ,,
· Inspector James Weisbeck, testified that he spoke with Mi-. Beylund on the phone and explained
the MSHA requirements at that time. (Tr. 19-21).
. Inspector Weisbeck informed Mr. Beylund of, among other things, what MSHA had to
· offer to small operators, the purpose of MSHA, how inspections worked, and who was subject to
the Mine Act. Further, Weisbeck offered to conduct a courtesy inspection at the mine and help
Beylund come into compliance with MSHA regulations. Mr. Beylund refused the offer and
replied that he wanted nothing ·to do with MSHA or its inspectors. (Tr. 22-24, 82).
Several months after the conversation between Weisbeck and Beylund, MSHA Inspector
Shane Julien returned to the Beylund scoria pit. The Beylund operation, as observed by the
inspector, consists of a surface scoria pit, crusher plant, dozer, back hoe, excavator, haul trucks
and other heavy equipment. (Tr. 42). On the day of Julien's visit, there were three employees
working at the operation, including Mr. Beylund and his son. Julien testified that he "observed
that the mine was loading trucks, doing maintenance, [and] cleaning up around the operation."
(Tr. 32-33).

31FMSHRC1411

As inspector Julien and an MSHA inspector trainee were entering the mine site, they
encountered a pickup truck carrying l\1r. 8eylund, his son, and another Beylund employee. (Tr.
35, 43). The inspectors explained the MSHA inspection scheme and the right of the inspectors
to enter the mine to conduct an inspection. Mr. Beylund was not welcoming. He raised his voice
and told the inspectors that the mine had been sold and they could not conduct an inspection.
Again, the inspector explained the Mine Act and the inspector's right to be on the property, but
. Mr. Beylund denied them entry. (Tr. 36, 39). The inspectors left, traveled a short distance down
the road, and stopped-to call the MSHA field office about the denial of entry. Shortly thereafter,
Mr. Beylund approached the inspectors, acknowledged that his lawyer had informed him that
MSHA could enter without a warrant, and told the inspectors they could return to the mine and
inspect. (Tr. 36-37).
The inspectors returned to the mine and conducted a regular inspection·of the pit andthe
crusher operation. They took notes and photographs of each violation and explained them to Mr.
Beylund during the close out conference. The inspectors observed the scoria pit, the crusher, an
excavator, dozers, back hoe, and several trucks. It appeared that the mine crushed the scoria for
several days at a time, and then loaded it on the haul trucks to be·delivered. The inspectors
discovered that Mr. Beybl,tld, his son, and one other employee did the bulk of the work at the pit
and the crusher. As a result of the inspection, sixteen citations and two orders were issued,
including citations for failing to properly guard equipment, failure to file a mine identification,
and failure to train any person who<worked at the l!lUJ.e .. (Jr.. 42). Subsequently MSHA issued
eight 104(b) orders for failure to abate a number of the vfolatfons in a timely manner. At the.
time of the-hear:iilg; one citation, number 6327959 citing a violation of 30 C.F.R-§..46.5(a) was.: '. ·.
not abated: ::The citation was issued because "[t]wo Iillriers, Steve Beylund ·and Michael Beylund, ·
:had not received the MSHA required.'24 hour new miner training within 90 days after beginnin'g. ··~
work at the mine.'' (Ex. 10)..
;
•. ·:
'"
~~

•'

:

•

'. <. :·

As indicated above, Mr. Beylund had no quarrel with ·the violations as issued but used the .
opportunity to tell the Court about his experience with MSHA and his difficulty with the
inspection. At one point during his testimony Mr. Beylund acknowledged that he had operated
the pit and the crusher for at least three years. At another point, he attributed a longer operational
time frame for the pit and crusher. Mr. Beylund was not consistent in his testimony and I
question his credibility. Since Mr. Beylund agreed that the violations as issued are correct, I will
not address each citation. In.stead, I will briefly address Mr. Beylund's arguments regarding
jurisdiction and the amount of penalty to be assessed for each violation.

Conclusions of Law

Mr. Beylund first argues that he didn't understand the law and therefore cannot be found
"guilty" of these violations. He declared a number of times that he's not a criminal, and did
nothing wrong. (Tr. 84). At the same time, Mr. Beylund argued that if the mine doesn't size the
material ''then he is home free." In other words, on one hand, he said he didn't understand the

31FMSHRC1412

:·-·<:

law, while on the other, he argues that if the crusher is not in operation, he does not have to
comply with the law. (Tr. 85, 91). I fin,d th~t while Mr. Beylund may not have been familiar
with all MSHA standards, he was certainly aware that he could be subject to MSHA regulation.
His view is, ifMSHA does not catch him, then he is not subject to the law. Mr. Beylund cannot
plead ignorance of the law while at the same time trying to avoid it, or develop his own theory
about when he does and does not have to comply. Further, MSHA supervisor James Weisbeck
had told Mr. Beylund at least six months prior to the inspection that Beylund was subject to
MSHA regulation. If he-was not aware of the law for the three or more years while he was
operating, he certainly became aware six months before the inspection when he was offered
assistance to come into compliance. Beylund's response to the offer of assistance by Supervisor
Weisbeck was that he didn't want anything to do with MSHA and that MSHA could "catch [him]
if [it] can." (Tr. 19).
Mr. Beylund made no effort to learn the law, but instead did everything he cuuld to avoid
it. His lack of specific knowledge and his actions to avoid MSHA do not excuse the violations.
First, as a general matter, the Mine Act is a strict liability statute. As such, the Mine Act assesses
liability without regard to the individual operator's fault. International Union, UMWA v.
FMSHRC, 840 F.2d 77, 83JD.C. Cir. 1988). However, fault maybe considered in setting the
level of the civil penalties by considering whether the operator was negligent. 30 C.F.R. § 100.3.
When a person operates a mine, it is his duty, at a minimum, to make an inquiry regarding his
status-and the~ safety standards he is expectedto. meet. ·. ,,.
__
.. '.

:.::·

;·,

.. ,.

. ,· ,·.,

·Be:Ylund' s ,next argument, that MSHA should not have the rightto enter the property

..
without a· warrant,: also fails. {Tr. 88). It is well established thatMSHA can and must enter any
mine to conductthe inspections required by the Act. The Act provides for such entry. 30.U.S.C;
§ 813. Safety concerns and enforcement needs justify warrantless,inspections of mines.
Marshall v. Texoline Company, 612 F.2d 935 (5th Cir.1980)£ While Mr. Beylund did not like
the fact that MSHA had the right to enter his propert)' without a warrant, he agreed, after
speaking to his attorney, that the law gives that right to the MSHA inspectors. He presented no
legal reason for his argument regarding the warrantless search except to say that the government
should not have such a right.
i. ::

The primary thrust ofBeylund's defense is that MSHA has no jurisdiction over the pit ·
and crusher operations, unless the plant is in operation at the time the inspectors arrive. {Tr. 88).
Mr. Beylund maintains that if he operates the crusher, and MSHA does not catch him operating,
then he cannot be issued any citations. Consequently, he was operating on Saturdays and
Sundays in order to avoid an MSHA inspection. (Tr. 83). The Secretary argues that the
extraction of scoria and operation of the crusher brings the facility within the Act's definition of
a mine, and therefore the equipment, facilities, and employees are all subject to MSHA's
jurisdiction.
Beylund commenced crushing operations at this site at least three years ago. (Tr. 27).
Beylund did not request a mine identification or seek to come into compliance with MSHA
regulations at start up. The scoria pit operated for a number of years without MSHA notice and
Mr. Beylund admits that he often operated on Saturdays and Sundays because he knew that

31FMSHRC1413

MSHA inspectors did not work on those days. Mr. Beylund urges the Court to vacate the
citations that were issued because the mine was not sizing rock, and therefore was not operating
at the time the inspectors arrived. He averred that MSHA would have to catch him operating
and believed that until it did, it could not inspect the premises. He did not argue that his
operation was outside ofMSHA jurisdiction, but simply that jurisdiction only applied if the pit
and crusher were in operation.
The legislative history of the Act makes clear that Congress intended that the Act's
coverage provisions be interpreted broadly. The Senate Committee report emphasized that ''what
is considered to be a mine and to be regulated under this Act [should] be given the broadest
possible interpretation, and ... doubts [should] be resolved in favor of inclusion of a facility
within the coverage of the Act." S. Rep. No. 95-181, at 14 (1977), reprinted in Senate
Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and
Health Act of 1977 at 602 (1978). The Commission and the courts have recognized this broad
Congressional intent and have applied the Act's provisions to a wide variety of milling
operations, including mining and crushing facilities similar to those at Beylund's site. Marshall
v. Stoudt's Ferry Preparation Co., 602 F.2d 589 (3rd Cir. 1979) (facilities for processing of
material dredged from a river bed were within the Act's definition of the term "coal or other
mine"); W.J. Rokus Ind.;16 FMSHRC 704 (Apr. 1994) (equipment in garage used by both the
operator's sand and gravel mine and asphalt plant is subject to the Mine Act's jurisdiction);
Marshall v. Cedar La~ Sand and (Jrave/Co.,.1np.~,480 J'..Supp. 171 (E.D. Wisc. 1979) (pit from
., .
which sand and gravel are removed falls squarely wi9rln .the A~f ~ .defipition of a mine);
Marshall v, Gilliam, 462 F.Supp. 1~3 (E.D... Mo. 1978). A ~all, family-run gravel business w:~, .,
held to be a mine and MSHA' s jurisdiction to ~JlSPect and enforce fu.e Act was upheld as to a
gravel pit, screening plant and equipment used~ or that had been used, in the operation. Jeppese~..
Grave/,. 30 FMSHRC 324 (Apr. 2008) .(ALJ). ,: .
.
,
..
.
. Sev~ral. aspects ofBeylund' s operatio~ ciearly rau' within the Act's definition of a mine.
The removal of scoria from its natural deposits in the pit, crushing and sizing the rock, and
transporting the rock, all constitute mining. (Tr.· 42, 90). Mr. Beylund, his son, and another
employee extracted minerals from the pit, crushed the rock, and then loaded the rock onto the
haul trucks. Beylund maintained and repaired mining equipment, including a dozer, back hoe
and crusher. Whether specific items that were cited, such as gas cans or oxygen cylinders, were
actually used in mining activities, the presence of those items in the area where miners worked
mandated that Beylund comply with MSHA's regulations. W.J. Bokus Ind., 16 FMSHRC at 708709; Marshall v. Gilliam, 462 F.Supp. at 135.
While the crusher is only operated on an "as needed" basis, it was evident that it had
recently been operated and that the pile of scoria recently crushed was being loaded onto the
trucks and transported. The site was being cleaned up from the most recent crushing operation.
(Tr. 42). Equipment and facilities that are available for use by miners must be maintained in
compliance with applicable safety standards, and are subject to inspections whether or not they
are actually being used at the time. See, e.g., Ideal Basic Ind., Cement Div., 3 FMSHRC 843
(Apr. 1981) (equipment located in a normal work area and capable of being used must be in
compliance with safety standards).
31FMSHRC1414

I further find that additional factors buttress MSHA's assertion of jurisdiction. First,
when resolving jurisdictional questions of this sort, the benefit of the doubt goes to the Secretary.
As the Commission stated in Watkins Eng 'rs & Constructors, "Congress clearly intended that ...
jurisdictional doubts be resolved in favor of coverage by the Mine Act. 24 FMSHRC at 675-676
(citing S. Rep. No. 95-181, at 14 (1977) reprinted in Senate Subcomm. On Labor, Comm. On
Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 602
(1978)).
A second related factor is that the courts and, by implication, the Commission and its
judges, have been reluctant to second guess the Secretary when she makes choices involving
. MSHA ~d OSHl.\. cov~rage~ She is the o~e :whose duty it is .~o ajIµiJrister the acts, and when, in .
the cotirse of her administration, she makes irlfonned
rea8oneit junsdictional deteimmations,
judicial decision makers have been wary of overruling her. See Watkins Eng 'rs & Constructors,
24 FMSHRC at 672-673, 676.

and

For all of these reasons, Beylund's challenge tO MSHAjurisdiction must fail. Finding no
merit to any of the defenses- raised by Beylund, the citations are affirmed as issued.

.Penal,&
. J conclude that the penalties hutially pr()posecfby tll.~ Secretary woUld not adequately ·

. effectuate ''the det~t" PurP~se underlying tl;i~ Act\; petiajtf ai;s¢ssment ·scheme. Sellersburg

Stone Co., 5 FMSHRC 287, 294 (Mar .. 1983),".a.ff'd, 736 F.Zd 1i47_-(7th Cli. 1984). I reach this·
'decisfoh based upon my conclusion that Beylrind did everything it could to 'avoid MSHA
· -inspection, and for years operated on days Mr. Beylund felt MSHA would not find the crusher in ·
operation. In addition, Mr. Beylund suffered life-tbieatening injuries when he fell from the
crusher and the same could have easily been the fate of other employees. Yet, he failed to abate
the citations as required, and, as of the date of hearing, he and his son had not received the
training necessary to operate the crusher and equipment safely.
The principles governing the authority of Commission Administrative Law Judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 11 O(i)
of the Mine Act delegates to the Commission and its judges "authority to assess all civil penalties
provided in [the] Act." 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to
the Secretary. 30 U.S.C. 815(a) and 820(a). Thus, when an operator notifies the Secretary that it
intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29
C.F.R. § 2700.28. The Act requires, that "[i]n assessing civil monetary penalties, the
Commission [ALJ] shall consider" six statutory penalty crite1ia:

31FMSHRC1415

[1] the operator's history of previous violations, [2] the appropriateness of such
penalty to the size of the busines~. ofthe operator qh~ged, [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).
In keeping with this statutory requirement, the Commission has held that "findings of fact
on the statutory penalty criteria must be made" by its judges. Sellersburg, 5 FMSHRC at 292.
Once findings on the statutory criteria have been made, a judge's penalty assessment for a
particular violation is an exercise of discretion, which is "bounded by proper consideration of the
statutory criteria and th~deterrent purpose[s] .... [ot] the Act.. Id. at 294; Cantera Green, 22
. .
·· .
FMSHRC 616, 620 {May 2000).

While I find no reason to question the degree of negligence and gravity assessed by the
inspector and used by the Secretary in proposing the penalties in these two cases, I do, however,
question Mr. Beylund's good faith abatement. Eight of the original eighteen violations were not
abated within the time required by the citations. The most troublesome failure to abate concerns
the training of employees at the mine. Training is so important to the safe operation of the mine
and the serious injuries sustained by Beylund might have been avoided if he had been properly
trained: The fact that a large number of citations were not abated in a timely manner~ that. most
of the violations could have easily been abated within the time set, and that the training citation
remains unabated, all weigh heavily on the detenninatioti of the increased penalties for those
violations. .
;.,

.

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: .

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Bey~und.i~ a small operator and' agreed that the,penalties:'as,,assessed would not interfere_,,,.··

with its ability to continue in business._ Since Beylund had noj'Qeeidnspected prior to June, .
2008~ it has no history of violations. 'I find the following penaltie$ ·appropriate in this
circumstance.
·

itation/
rder#

tandard

327943

1.ll(a)

6.14107(a)
6.12030
6.12028

6.5(a)
, 6.6(a)
6.12008

31FMSHRC1416

·

·

5327946

56.14107A

Failure to abate y

$121

$140

5327947

!56.12008

[<" ailure to abate N

$112

$120

5327950

56.14107A

None

N

SlOO

$100

5327951

56.16006

~ailure to abate N

&112

$120

56.4203

None

N

SIOO

uoo

5327953

56.14132A

Failure to abate N

&112

U20

5327954

)6.18010

'.'Jone

N

6100

SlOO

5327955

~7.31A

None

N

6100

6100

6327957

50.30

None

N

$100

6100

6327958

46.3

None··

N

$100.

6100

$4,059

4,1.77

5327952

.

Total

Consistent with this decision, it is ORDERED that Beylund Construction hie., pay a total
civil penalty of $4, 177 for the 18 violations contained in these dockets. Such payment shall be
made within 30 days of the date of this decision. 1

..

...

\

.

· Distribution:
Ron Goldade, Conference and Litigation Representative, U.S. Dept. of Labor, MSHA
P.O. Box 256367, DFC, Denver, CO 80225-0367 (via Certified Mail)
Steve Beylund, President, Beylund Construction Inc. 824 3n1 A venue, NE
Bowman, ND 58623-4822 (via Certified Mail)

1

Payment should be sent to the Mine Safety and Health Administration, U.S. Department
of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
31FMSHRC1417

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, DC 20001

November 30, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
on behalf of LIGE WILLIAMSON
Complainant

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. KENT 2009-1428-D
PIKE CD 2009-06

v.
CAM MINING, LLC,
Respondent

Mine ID 15-18911
Number 28 Mine

AMENDME!tt OF ORDER OF TEMPORARY REINSTATEMENT

Before:

Judge Feldman

•. : . An Order of Temporary Reinstatement was issued on October 2.6, 2009, granting an. · ·
· application for-temporary reinstatement filed by the Secretary, pursua:Q.tto s~tion 105(c.)(2) of
the Federal Mine Safety and Health Act of 1977 (the Mine Act), 30 U.~.C. § 815(c)(2), against
CAM Mining, LLC. (CAM Mining) on behalf of Lige Williamson. The initial decision on the
Secretatf s application, following a September 2, 2009, evidentiaty hearing, detennined thatthe ·
secretary failed to satisfy her burden of demonstrating that the application foqempo:tary ;
reinStatement was not frivolously brought. 31 FMSHRC _ (Sept. 30, 2009) (ALJ). The
Secretary appealed the initial decision. The Commission then reversed and ordered the
retroactive reinstatement of Williamson effective as of September 30, 2009, the date of the initial
decision. 31 FMSHRC _,slip op. at 8 (Oct. 22, 2009). Consistent with the Commission's
remand, the October 26, 2009, Order of Temporary Reinstatement granted Williamson's
reinstatement relief effective September 30, 2009.
The parties have now filed a joint motion to amend the Order of Temporary
Reinstatement. The Secretary and CAM Mining have agreed to the method of computation that
will determine Williamson's economic reinstatement relief as of September 30, 2009. ·
In view of the above, consistent with the terms of the parties' agreement,
IT IS ORDERED THAT CAM Mining shall pay Lige Williamson his regular weekly rate of
pay of $24.00 per hour for 40 hours in addition to payment for l 0 hours of overtime pay per
week computed at the normal overtime compensation rate. The agreed total gross wages per
week that Williamson shall be paid is $1,320.00 retroactive to September 30, 2009, minus
deductions for truces and other items, if any, that were deducted during Williamson's

31FMSHRC1418

employment. The parties have agreed to the terms of the deductions for Williamson's health
insurance premiums and the effective date of his health insurance coverage. In addition, all other
benefits that Williamson wai; entitled to prior to his termination shall be restored effective
September 30, 2009, including but not limited to his participation in CAM Mining's 40l(k)
employee benefit program.
Williamson'seconomic reinstatement shall not prejudice CAM Mining's right to contest
Williamson's discrimination complaint that currently is beirig investigated by the Secretary.
The Secretary should endeavor to complete, as soon as practicable, her investigation so that this
matter may proceed to an evidentiary hearing on the merits. If the Secretary, upon investigation,
finds that the provisions of section 105(c) have not been violated, she shall file a motion to
vacate this Order of Temporary Reinstatement. Alternatively, CAM Mining may move to vacate
this temporary reinstatement order if the Secretary declines to prosecute Williamson'~ complaint
pursuant to section 105(c)(2) of the· Mine Act. Peter J. Phillips v. A&SConstruction Co.,
31 FMSHRC _,Docket No. West 1057-DM (Sept. 9, 2009). If the Secretary elects to file a
discrimination complaint on behalf of Williamson pursuant to section 105(c)(2) of the Mine Act,
IT IS ORDERED that Williamson's economic reinstatement shall remain in effect until the
merits of the Secretary's 10S(c)(2) complaint becomes final. ..,

Jerold Feldman
Administrative Law Judge
Distribution: (Regular and Certified Mail)
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219
Marie E. Heath, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd. East, P.Q: Box 273,
Charleston, WV 25321

/rps

31FMSHRC1419

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey· Avenue, NW, Suite 9500
Washington, DC 20001-2021

December 2, 2009

TEMPORARY REINSTATEMENT
PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
on behalf of MARK GRAY,
.·Complainant

Docket No. KENT 2009-1429-D
BARB CD 2009-13

v.
NORTH FORK COAL CORPORATION,
Respondent

Mine ID 15-18340
No.4Mine

ORDER DISSOLVJNG ORDER OF E~~NQMlC TEMPORARY R,EINSTATEMENT·t .,: ..
..
ORDER OF DIS~~SAL
.
.
.

.

.

.

·.· On SepteI11ber ,8, 2009, the undersigned judg~iound that. the Secr~t~' s applicati<?n for. .
the temporary reinstatement of Mark Gray; under Seetion l95(c)(2) of the Federal Mine $~fety

and Health Act of 1977, 30 U.S.C. § 815 (c)(2), was not frivolously brought and ordered his
temporary reinstatement. Thereafter, on September 17, 2009, upon agreement of the parties, this
judge ordered the economic temporary reinstatement of Mr. Gray. Respondent North Fork Coal
Corporation subsequently requested that the economic temporary reinstatement order be
terminated.
The Secretary stated in her response, filed Nov. 23, 2009, that on Nov. 20, 2009, she sent
written notification to Mr. Gray that, as a result of her investigation of his "Section 105(c)"
complaint, she had decided not to file a "Section 105(c)(2)" complaint on his behalf. Under the
circumstances, the Order of Economic Temporary Reinstatement must be dissolved and this
temporary reinstatement proceeding must be dismissed. Secretary ofLabor on BehalfofPeter J.
Phillips v. A&S Construction Co., 30 FMSHRC 1119 (Nov. 208)(AU Barbour), affd Peter S. ·
Phillips v. A&S Construction Co., WEST 2009-1057-DM, 2009 WL 2971140 (FMSHRC Sept.
9, 2009).

31 FMSHRC 1420

ORDER

The Order of Temporary Economic Reinstatement, issued on September 17, 2009, is
hereby dissolved, and this proceeding is dismissed.

Gary Melick
Administrative Law Judge
(202) 434-9977

· Distribution: (By Certified Maitand Facsimile ot,E;~atl); .
Derek J. Baxter, Esq., and Matthew Babington, Esq.,Office of the Solicitor, U.S. Department of
· Labor, 1100 Wilson Blvd., 22nd, Floor West, Arlington,. VA22209-2247
.·

•)

'
~

...

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522
Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg; KY
41858
Stephen Hodges, Esq., Penn, Stuart, & Eskridge, 208 E. Main St., Drawer 2288, Abingdon, VA
24210

Mark Gray, P.O. Box 465, Grays Knob, KY 40829
/eb

31FMSHRC1421

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

December 3, 2009
CONTEST PROCEEDINGS

KNOX CREEK COAL CORPORATION,
Contestant
v.

DocketNo. VA2007-15-R
Citation No. 7317341; 11/07/2006

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

Docket No. VA2007-16-R
Order No. 7317342; 11/07/2006
Tiller No. 1
Mine ID 44-06804

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

v.

CNIL PENALTY PROCEEDING
Docket No. VA 2007-55
A.C. No. 44-06804-119560
. ~-

. KNOX CREEK COAL CORPORATION, .
Respondent·
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH .
ADMINISTRATION (MSHA),
Petitioner
v.
ERNEST B. MATNEY, Employed by
KNOX CREEK COAL CORP.,
Respondent

.

.

.
.

.

TillerNo. 1
•;

·.'

I

•

;·

CIVIL PENALTY PROCEEDING
Docket No. VA 2008-215
A.C. No. 44-06804-141359A
Tiller No. 1

DECISION

Appearances:

Lucy C. Chiu, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for the Petitioner;
Timothy W. Gresham, Esq., Penn, Stuart & Eskridge, Abingdon, Virginia,
for the Respondents.

Before:

Judge Feldman
31 FMSHRC 1422

These consolidated civil penalty and contest proceedings concern a Petition for the
Assessment of Civil Penalty filed pursuant to sectionlIO(a}ofthe Federal Mine Safety and
Health Act of 1977, as amended ("the Act"), 30 U.S.C. § 820(a), by the Secretary of Labor
(''the Secretary") against the respondent, Knox Creek Coal Company ("Knox Creek").
The petition seeks to impose a total civil penalty against Knox Creek of $8,300.00 for two
violations of Part 75, 30 C.F.R. Part 75, of the Secretary's mandatory safety regulations
governing undergrouncLcoal mines that the Secretary asserts are attributable to an unwarrantable
failure. 1 The violations were cited as a result of a November 7, 2006, mine inspection.
The proceedings also concern a personal liability action brought by the Secretary
under section 110(c) of the Act, 30 U.S.C. § 820(c), against Ernest B. Matney. The Secretary
seeks to hold Matney personally liable for payment ofa total civil penalty of$2,700.00
for the two violations in issue. Section 110(c) of the Act provides that a corporate agent
"who knowingly authorized, ordered or carried out ... [a] violation" committed by a corporate
operator may be subject to individual liability.
These matters were_heard on June 2 through June 3, 2009, in Abingdon, Virginia.
The parties' post-hearing briefs and replies are of record.

I. Statement of the Case
_,.:

···!

.

These consolidated·matters concern two citations issued as a con8eqtience ofMine Safety .
and Health Administration ("MSHA") Inspector Donajd K. Phillips' November 7; 2006, ·
inspection of Knox Creek's Tiller No. 1 underground µtine facility. The citations are 104(d)(l)
Citation No. 7317341 for failure to conduct ariadequafopresbift ~xamfuation in violation of
30 C.F.R. § 75.360(a)(l), and, 104(d)(l) Ofder No. 7317342 for failure to protect personnel from·
roof and/or rib falls in contravention of 30 C.F.R. § 75.202(a). The violations were designated as
significant and substantial (S&S)2 and, as previOusly noted, the Secretary alleges the violations
were the result of.Knox Creek's unwarrantable failure. At the hearing, Knox Creek stipulated to
the fact of the occurrence of the violations and to the fact that the violations are properly
characterized as S&S in nature. {Tr. 81-82, 86-87, 284-85).

1

As a general matter, an unwarrantable failure occurs when a violation is caused by
aggravated conduct rather than ordinary negligence. Emery Mining, 9 FMSHRC 1997, 2001
(Dec. 1987).
2

Generally speaking, a violation is S&S if it is reasonably likely that a hazard contributed
to by the violation will result in an accident causing serious injury. Cement Division, National
Gypsum, 3 FMSHRC 822, 825 (April 1981 ).
31 FMSHRC 1423

Thus, the only remaining issue concerning Knox Creek is whether the subject violations
are attributable to an unwarrantable failure. As discussed below, the Secretary has demonstrated,
by a preponderance of the evidence, that the violations are unwarrantable because: the cited roof
conditions posed a significant hazard as they included a sheared roof bolt located in an
intersection in close proximity to an area of bad roof; the adverse roof conditions existed for at
least several shifts; the cited dangerous roof sloughage was extensive and obvious in nature;
Knox Creek had made-no efforts to address the dangerous roof conditions; and Knox Creek was
on notice that more thorough preshift examinations were required by its examiners by virtue of a
previous citation that had been recently issued for an inadequate preshift examination.
With respect to the 110(c) personal liability action brought against Ernest B. Matney, to
prevail, the Secretary must show that Matney, as a foreman in·a position to protect employee
safety, failed to act on the basis of information that gave him knowledge or reason .to know
of the existence of a hazardous violation. Secy ofLabor v. Richardson, 3 FMSHRC 8, 16
(Jan. 1981), afj'd, 689 F.2d 632 (6th Cir. 1982). Although Matney's preshift examination
was inadequate, in essence, the Secretary's 110(c) case against Matney is circumstantial in nature.
Although denied by Kno~ Creek, the Secretary alleges that a crib had been installed to support
the sheared roof bolt that was located in an intersection in close proximity to an area of bad roof.
The Secretary asserts that the crib was either intentionally removed, or, accidentally knocked
down. In any event, the Secretary maintains that the crib was not replaced intentionally
because it interfered with the paths of scoops as they traveled through the: subject intersection
:-from their battery recharging stations to and from the face.- Consequently, the Secretary believes,
that Matney knew, or should have known, that a. crib was required, and; that his failure to note
the missing crib during his preshift examination is an aggravating factor that gives rise to
Matney's personal 110(c) liability.
As noted below, the inferences sought to be drawn by the Secretary do not demonstrate
that it is more probable than not that a crib had been installed under the subject sheared roof bolt.

Thus, the Secretary's evidence is inadequate to establish that Matney deliberately failed to note a
hazardous roof condition that was known to him, or, that should have been known to him, during
his preshift examination. 3 As discussed herein, while Matney's preshift examination was
inadequate, and a contributing factor in establishing Knox Creek's unwarrantable failure,
the level ofMatney's negligence does not give rise to 1lO(c) liability. Consequently,
the Secretary has failed to show that Matney is liable because he "knowingly authorized,
ordered or carried out " the subject violations. Accordingly, the case brought by the Secretary
against Matney shall be dismissed.

3

Personal liability under section 110(c) requires more than the typical "knew or should
have known" standard that evidences ordinary negligence. As discussed infra, the "should have
known standard" for personal liability is analogous to ignoring available facts that disclose the
existence of a hazardous condition. See Roy Glen, 6 FMSHRC I 583, 1586 (July 1984). Here,
the evidence is inadequate to demonstrate that Matney knew that a crib had been installed.
31 FMSHRC 1424

II. Findines of Fact
Knox Creek, a subsidiary of Massey Energy Company, operates the Tiller No. 1
underground coal mine located in Tazewell County, Virginia. Coal is extracted during
two production shifts, and there is one maintenance shift. (Joint Stip. 6; Tr. 265-267). 4
The area of the mine that is the subject of these proceedings is the 005 MMU as it existed on
November 7, 2006" The 005 MMU is also referred to as the No. 3 section. The area consists of
the No. 3 and the No. 4 entries, and the crosscut between these entries in the general vicinity of
the area located in an inby direction from survey stations 8050 to 8045. (App.1). 5 In this area,
Knox Creek utilized the room and pillar method. The relevant provisions of the roof control plan
limited the entry widths to 20 feet. Roof bolts were required, four across between the ribs, on
four footcenters. Each roof bolt is driven irito·the roof through a six inch washer-like bearing ·
plate that compresses a larger 10 to 12 inch "pizza pan" plate that supports the draw .rock in the
surrounding area of the bolt. The pillar dimensions were 40 to.45 feet square, mined on
60 to 65 feet centers. Thus, consistent with the approved roof control plan, the widths of the
entries and crosscuts in the 005 MMU were 18 to 20 feet. The height of the crosscuts and entries
was approximately six feet._
a. Initial Development in the Vicinity of
Survey Stations 8045 :and 8050,
:

~:

· •· ·Knox Creek originally mined the area in the vicinity of survey stati~ns S045 and 8050
approximately three to four months prior to the November 7 ~ 2006, inspeetion in issue.
(Gov. Ex. 7; Tr. 235, 279-280, 397). When this area was initially mined, there was a rock fall in
the No. 3 entry that required the areafo be dangered-off with.two rows ofcribs. (See App. I).
hi addition, there was a sheared roof bolt at the inby edge of the intersection of the crosscut inby ·
survey station 8045 and the No. 3 entry; (See App. I). The sheared bolt was the second bolt from
the left rib. 6 Consequently, the sheared bolt was 8 feet from the left rib and 12 feet from the right
rib. The damaged bolt was missing both the bearing plate and the "pizza pan" plate. Thus, the
stripped bolt was not a source of any roof support. The area around the damaged roof bolt was
rock dusted. Thus, the roof bolt apparently was damaged during the initial development of the
area inby survey station 8045. After this area was mined and rock dusted, it remained idle for
several months until November 2006, when battery chargers for scoops were moved into the area
in preparation for further development inby.

4

The parties' agreed upon stipulations include general joint stipulations and
stipulations of fact. The joint stipulations are cited by number. The factual stipulations
are cited by page number. (Joint Ex. 1).
5

Government Exhibit 7 has been appended to this Decision as "Appendix I."

6

The crosscut ribs are identified herein as "left" and"right" from the perspective of
viewing the crosscut in an inby direction. (See App. I).
31 FMSHRC 1425

. ·.~·· .. '

b. Prior Notice Regarding Inadequate Preshift Exams
- ..,.. ,··

.-.,? ..:: .... ·

The parties have stipulated that a citation was issued to Knox Creek on October 31, 2006,
for an alleged inadequate preshift examination at the 002 MMU. (Joint Stip. p. 6; Tr. 428).
To terminate this citation, all of Knox Creek's examiners, including Ernest Matney,
Christopher Stiltner, and Charles Riordan, the three 005 MMU section foreman who testified
in these proceedings, were retrained on preshift examinations. The retraining occurred shortly
after October 31, 2006, less than one week prior to the issuance of the November 7, 2006,
citations in issue. (Tr. 428).
c. Planning and Placement of Batteiy Chargers
Approximately four days after the issuance of the October 31, 2006, citation for an
alleged inadequate preshift.examination in the 002 MMU, the three 005 MMU section foremen
began inspecting the intersection at the 8045 survey station in preparation for advancement inby.
Night shift foreman Riordan testified that on Saturday, November 4, 2006, he, day shift
foreman Stiltner, and maintenance shift foreman Matney, determined that the best locations to
place two scoop battery chargers were in the crosscut between the No. 3 entry and the
No. 4 track entry, and, in the No. 3 entry to the right of the intersection at survey station 8045.
(App. I;, Tr. 222-23, 226). Riordan stated the tln:ee forem~ traveled the area several times before
deciding on the placement of the cliargers because placement of the chargers was limited by_ the·
lost spa.el!: iti:the vicinity ofthe rock fallin the No. 3 entry that had occu.rred when the area was
initiatly tnined. (App. I; Tr. 224, 227..,28): All three. foreman testified that they did not
notice the sheared bolt in the intersectfon although they traversed the area several times before ·
selecting the battery charger locations. (Tr.. 252,..269,321, 3.87)., The two: battery chargers were '· .·.
'situated it'r the No. 3 entry and in the crosscut outby the 8050 survey station on Sunday. evening,
November5, 2006, and/-0r Monday morning, November 6, 2006. (Joint Stip. p. 7; Tr. 223).
The scoops operating from these battery chargers are approximately 10 feet wide and 25 feet
long. For the purposes of this decision the scoop and charging station in the No. 3 entry
has been designated as No. l, and the scoop and charging station in the crosscut has been
. designated as No. 2. (See App. I).
d. Preshift and Onshift Examinations
Prior to November 7. 2006
After the battery chargers were placed in the No. 3 entry and crosscut, at least four
preshift and onshift examinations of the 005 MMU were conducted. Matney conducted an
onshift and preshift examination at 4: 13 a.m. on Monday, November 6, 2006. Stiltner conducted
an onshift and preshift examination during the November 6th day shift following Matney's
maintenance shift. Riordan conducted an onshift and preshift examination on the evening of
November 6, 2006. Finally, in the early morning hours of November 7, 2006, at 4: 15 a.m.,
approximately five hours before Phillips issued the subject citations, Matney conducted his
November 7, 2006, combined onshift and preshift examination that was completed 36 minutes
31FMSHRC1426

later at 4:51 a.m. None of the preshift or onshift examinations noted any of the hazardous
roof conditions cited by Phillips in 104(d)(i) Order Ncc1·3 i 7342.
e. Matney's Preshift Examination
Matney testified that during the early morning hours of November 7, 2006, his crew
was performing mainteHance on a continuous miner at the intersection at survey station 8630,
which was approximately seven crosscuts inby the No. 1 entry. Matney stated that approximately
38 loose crib blocks were used to prop up the mining machine. Specifically, approximately
20 blocks were placed under the miner,· and approximately 18 blocks .were used to support the
head of the miner. Matney testified he instructed his crew to place the loose cribs blocks
between the cribs in the rock fall area in the No. 3 entry after they finished repairing the
continuous miner. However, Matney testified that he did not know where the loose cribs blocks
were ultimately placed. (Tr. 338-39).
Matney began his preshift examination at 4: 15 a.m. Matney checked approximately
eight headers. After returning to his crew at the continuous miner, Matney traveled down to the
power center, then to the belt drive, and ultimately to the No. 1 charger in the No. 3 entry were he
initialed the date board at 4:39 a.m. Matney stated that he observed the intersection in the
vicinity of survey station 8045 from the backoftheNo. I scoop _that was parked next to the .
' ··· No.~·t:charger~ ·:However, he did notwalk through the·. intersection.in the.vicinityofsurvey'.Stan9n
8045,'orto the'rock fall area. The date board.at-the No. 1 charger was approximately45 feet.
away :from the survey station at 8045 .. Matney did notnote.sloughage..and compacted material in .
·.·the intersection of the crosscut and No. 3 entry obserVed by Phillips during his inspection several.·
houts later. Day shift foreman Stiltner testified that.his-crew did nottak:e scoop No. 1 Qff ··
· · the charger iii.-the No. 3 entry before Phillips inspected the area during the·morning of
November 7, 2006. Consequently, there is reason to believe that the· compacted material
on the mile floor immediately underneath the comer of the right rib existed prior to Matneys
November 7, 2006, preshift examination because it apparently was· caused by contact with the
No. 1 scoop.
After signing the date board in the No. 3 entry Matney traveled down a crosscut parallel
to the crosscut were the No. 2 scoop was located. Matney traveled to the belt drive, walked
the track entry, and used a man.trip to travel down to the crosscut to the vicinity of the No. 2
battery charger. Matney signed the date board located in the crosscut inby survey station 8050
at 4:40 a.m., reflecting that the date board was signed one minute after the date board in the
No. 3 entry was signed. 7 Matney testified that he observed the intersection at survey station 8045

7

The accuracy of the times noted by Matney is suspect because it is difficult to imagine
how Matney could traverse the area from the date board in the No. 3 entry to the date board in the
crosscut in one minute. (App. I). In any event, Matney's preshift examination took 36 minutes,
from 4: 15 a.m. until 4:51 a.m., to complete.
31FMSHRC1427

from the date board at the No. 2 battery charger. The No. 2 scoop was not parked next to the
charger during Matney's preshift examination. Rather, it was located near the disabled
continuous miner in the intersection at survey station 8630.
Similar to his inspection of the roof conditions with cap light from the first date board
in the No. 3 entry, Matney testified that he relied on cap light to view the 8045 intersection
from the second date board located in the crosscut. The only reference to roof conditions in
Matney's written November 7, 2006, preshift examination report was the remark "top shaggy."
(Gov. Ex. 10 -10). Matney testified that he did not observe any of the adverse roof conditions
that were subsequently observed by Phillips five hours later at 10:00 a.m.
·_,...

:·1

f. Phillip's November·?. 2006, Jns»ection

i. Conditions at Track Entzy Near
Survey Station 8050
On the morning of November 7, 2006, at approximately 10:00 a~m., Phillips traveled the
track entry where he noted an area of approximately 6 to 12 inches that had sloughed off of the .
inby rib at the intersection of the crosscut and track entry. (App. I, ~,~Area F"). Phillips
determined that the distances from the rib of the fiisHwo roof bolts adjacent to this sloughed off
area were 60•mches ·and 54 inches,. respectively.. The approved ·roof control plan required the . ··
Jitstro-w of roof bolts tobe·no more than 48 inches from·the rib~ ·Phillips;also obsel"Ved roof · >
cracks· and Ioose .roof material in this area: . Phillips' concern was ·heightened because this was an ..
area wherepersonnelexited from the mantrip.
. .t
ii. Conditions at the No.:J·Entry Near·'
Survey Station 8045

After inspecting the sloughed rib near survey station No. 8050, Phillips traveled the
crosscut inby to survey station No. 8045 where he observed roof cracks containing rock
dust. Phillips checked a test hole in the vicinity of 8045 and found separation of
approximately 49 inches. (App. I, "Area D"). In addition to separations in the roof, Phillips
observed an old rock fall area in the No. 3 entry outby its intersection with the crosscut that was
dangered-off and supported by two rows of cribs. Phillips observed that, in the first row of cribs,
the three lowest timbers in the crib nearest the inby rib were dislodged, apparently as a result
of having been struck by the No. 1 scoop as it turned right inby into the crosscut from the
No. 3 entry. (App. I, "Area A"). The dislodged comer crib was particularly hazardous in view of
its location, in a dangered-off area, near the intersection of the crosscut and the No. 3 entry.

31FMSHRC1428

iii. Sheared Roof Bolt in lnby Intersection
ofCrosscutand No. 3 Entry '
At the inby end of the intersection of the crosscut and No. 3 entry Phillips observed that
the second roof bolt, located 8 feet from the left rib and 12 feet from the right rib, had been
sheared off. (App. I, "Area B"). The severed bolt was covered with rock dust. The bearing plate
and "pizza pan" used to-support the draw rock were missing. Phillips testified that he observed
marks that were brownish in color near the sheared bolt. (Tr. 119). Phillips believed the brown
marks were beyond the area where the "pizza pan" would have been located. (Tr. 166).
Phillips surmised the marks were made by a wooden wedge that was used to tighten a crib
to the roof that had been installed as a substitute for the damaged roof bolt. Throughout these
proceedings, Knox Creek has maintained that a crib had never been installed under this damaged
roof bolt. (Tr. 293-96). ·
Phillips also noted approximately 30 loose crib blocks lying on the mine floor
along the crosscut's left rib inby its intersection with the No. 3 entry. (App. I, "Area B").
The dimensions of a crib block are 6 inches in depth and 3 feet in width. (Tr. 120).
The stacking of four crib blocks creates approximately one foot of crib height crib. (Tr. 121 ).
Consequently, it would require approximately 24 crib blocks. to construct a crib that was six feet
high:' Because·ofthe brown roof marks he had observedf~Phillips '.Concluded that the 109se crib
blocks lying along the crosscut rib were the dismantled remains ofa·crib that had been installed
to support1theroof area surrounding the sheared bolt. {Tr. 122; 167):
....

As previously noted, the sheared bolt was focated 8: feet from the left rib of the crosscut,
.If a crib that was 3 feet wide had been installed,, it would result in approximately 1OYi feet of· .
.clearance between the right rib and the end of the crib: The.presence of the crib would preclude;
· the scoops, that are 10 feet wide, from traveling through the intersection of the crosscut and the
No. 3 entry to the face. Moreover, the scoops' access to the charging stations from the face could
only be accomplished through the crosscut between the No. 2 and No. 3 entries. Access through
the No. 4 entry was blocked because of the track. Access to the face through the No. 3 entry was
blocked. Specifically, the inby portion of the No. 3 entry was blocked by No. 1 charger,
and the outby portion of the No. 3 entry was dangered-off and blocked by cribs. Consequently,
Phillips recognized Knox Creek had a motive to dismantle the crib, if it had been installed, to
allow the scoops to travel from the face to and from their battery chargers. {Tr. 122, 127).
. As noted, throughout these proceedings, Knox Creek has maintained that a crib had never
been installed under this damaged roof bolt. (Tr. 293-96). In this regard, Matney testified that
there was no crib installed under the damaged bolt at the time of his presbift examination during
the early morning hours of November 71h. (Tr. 467). Consistent with Matney's testimony,
night shift foreman Riordan, day shift foreman Stiltner, and maintenance superintendent
Steve Addison testified they had never seen a crib supporting the roof in the area of the

31FMSHRC1429

damaged bolt. (Tr. 252, 306-307, 321, 520). Moreover, as previously noted, the existence
of the damaged roof bolt was repeatedly oV'edooked dunng' at least four preshift and
onshift examinations conducted by Matney, Riordan and Stiltner that preceded Phillips'
November 7, 2006, inspection.
To contradict Phillips' speculation that the loose crib blocks were the remnants of a
dismantled crib, as previously discussed, Matney testified that the crib blocks located
along the left rib were ilsed to prop-up and repair a continuous mining machine that was
located near survey station 8630 during the November 7, 2006, maintenance shift. (Tr. 339).
After maintenance of the continuous miner was preformed, Matney stated he directed miners
Dave Bullion and Aaron Pennington to place the crib blocks in the dangered-off area of the
· No~· 3 entry so· that they would not be run over· by the scoops as they traveled to and from the
battery chargers. Matney testified that despite his instructions, the crib blocks apparently were
placed along the left rib of the crosscut inby the No. 3 entry. With respect to roof marks,
although Addision did not recall seeing any marks, he speculated that the missing "pizza pan"
could have caused the roof marks described by Phillips. (Tr. 504).
iv. Sloughed-Off and Compacted Material
at the Right Rib of the Crosscut
·"'

.,

·-:

;

i'

.. ,· · Phillips_: observed the.inby comer of the right rib of the crosscµt in the intersection of the,
N-0. 3 entry had sloughed· offcausing'.the fjrst row of roofboltSto be 61~ 58~· and 64 inches from::·
the rib in violation of the approved roof control plan that required the distance from rib to bolts .
be rio more than 48 inches. (App. l, "Area C'). Phillips also observed that the sloughed
--material had :been compacted on the floor reflecting thaHhe material had been run over· by 1he: :'
No. l scoop as ittumed the comer frOm the'. No. 3 entry mto the· crossci.lt.: Since there.were four.
by four pallets of cinder blocks on the floor adjacentto the outby rib'in the No. 3 entry, Phillips
.concluded that the No. 1 scoop would have had to hug the inby rib as the scoop approached the
battery charger. (App. 1, "Area D"). This would expose the operator compartment of the scoop,
which is located on the right hand side, to the comer of the rib that was compromised.
As noted, day shift foreman Stiltner testified that his crew did not remove the No. 1 scoop from
its charger prior to Phillips' inspection. Consequently, as previously discussed, the damaged rib
and compacted material on the mine floor apparently existed at the time ofMatney's preshift
examination that occurred before Stiltner's day shift operations. (Tr. 480-483).

· to

v. Sheared Bolt Near the No. 2 Battezy Charger
Standing at the date board in the crosscut inby survey station 8050, Phillips observed a
sheared roof bolt that was located over an outby comer of the No. 2 battery charger. The sheared
bolt was four feet from the right rib. (App. 1, "Area E"). The charger receptacle was lying on the
charger and had not yet been plugged into the No. 2 battery. Phillips was concerned that a miner
would be exposed to the sheared bolt area when he attempted to attach the No. 2 battery
to the scoop.
31FMSHRC1430

vi. Sloughed Right Rib Area Adjacent to
No. 2 Charger
Phillips also observed sloughage of the right rib in the area that was adjacent to the
No. 2 charger. He determined the distance from the sheared bolt to the deteriorated rib was
seven feet, indicating that three feet had fallen off of the rib. Riordan and Stiltner testified that
they never observed-thi& deteriorated rib condition during their preshift and onshift examinations.
(Tr. 232-34, 319).
g. Citations Issued to Knox Creek
;·· As a re8ult of Phillips' observations of the roof conditions noted above, and the fact that
these conditions were not disclosed during the preshift examination as hazardous conditions
requiring remedial action, Phillips issued 104(d)(l) Citation No. 7317341 for failure to
conduct an adequate preshift examination in violation of30 C.F.R. § 75.360(a)(l), and,
104(d)(l) Order No. 7317342 for failure to protect personnel from roof and/or rib falls in
contravention of30 C.F.R._§ 75.202(a). The violations were designated as S&S and they were
attributable to Knox Creek's unwarrantable failure. The Secretary seeks to impose a total civil
penalty of $8,300.00 for these alleged violations.

· Ii; Pers0nal llO(c)Liability of Matney
'

··,.

:

.• • '

,: .

I,

'~

~'.

..

~

..

~

...

The Secretary also seeks to impose personal liability of$2,700.00 against
Ernest B. Matney under section 110(c) of the Act.for the two violations. in issue.
Section llO(c) provides that a corporate.agent."who kn:owinglyauthorized,1orderedor ca,rried,out, ·
... [a] violation'' committed by a mine: operator may be subject to individual liability.
. ...

III. Further Findines and Conclusions
a. Knox Creek
The mandatory safety standards in issue are 30 C.F.R. §§ 75.202(a) and 75.360(a)(l).
104(d)(l) Order No. 7317342 cites a violation of Section 75.202(a). This mandatory safety
regulation provides:
The roof, face and ribs of areas where persons work or travel shall be supported or
otherwise controlled to protect persons from hazards related to falls of the roof,
face or ribs and coal or rock bursts .

. 31FMSHRC1431

104(d)(l) Citation No. 7317341 cites a violation of Section 75.360(a)(l). This mandatory
safety regulation provides, in pertinent part:
... a certified person designated by the operator must make a preshift examination
within 3 hours preceding the beginning of any 8-hour interval during which any
person is scheduled to work or travel underground. No person other than certified
examiners may enter or remain in any underground area unless a preshift
examination has been completed for the established 8-hour interval. The operator
must establish 8-hour intervals of time subject to the required preshift
examinations.
As-noted, at thehearin:g, Knox Creek stipulated to the fact of the occurrence of the
violations, and, to the fact that the violations are properly characterized as S&S in nature.
(Tr. 81-82, 86-87, 284-85). Thus, the remaining issue with respect to Knox Creek is whether the
violations are attributable to an unwarrantable failure.
The elements of u,nwarrantable conduct are well settled. The Commission has
determined that unwarrantable failure is aggravated conduct constituting more than ordinary
negligence. Emery Mining, 9 FMSHRC at 2001. Unwarrantable failure is characterized by such
conduct as "reckless disregard," "intentional misconduct," "indifference," or a. "serious. lack of
reasonable care:" Id. at2003-04; Rochester &Pitt~burgh Coal.Co., :13FMSHRC189,J93-194 ·
(Feb.1991); see also Buck Creek Coal, 52 F.3d atJ35•36 (approving the Cotnmission's .
cunwarrantable failure test).
··'·.·

'

·': .··- .· The C<>mmission examines various factors in determining whether a violationis
-Unwarrantable, including the magnitude ofa violative condition, the length of time that it has
existed, whether the violation is obvious, whether the. violation poses a high degree of danger,
whether the operator has been placed on notice that greater efforts are necessary for compliance,
and the operator's compliance efforts made prior to the issuance of the citation or order.
Enlow Fork Mining Co., 19 FMSHRC at 11-12, 17; Mullins & Sons Coal Co., 16 FMSHRC 192,
195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261(August1992); Quin/and Coals,
Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603(July1984).
It is clear that virtually all of the elements of an unwarrantable failure are manifest in this
case. With respect to the magnitude of the violations, the hazardous roof conditions, which were
repeatedly overlooked by preshift and onshift examiners, included: two sheared roof bolts, one of
which was located in an intersection near a dangered-off area; several areas of rib sloughage that
resulted in exceeding the maximum 48 inch distance allowed between ribs and roof bolts; and a
dislodged crib lo_cated near an intersection in an area of bad roof. There is no evidence that these
hazardous roof conditions did not exist during Matney's November 7, 2006, preshift examination
as these conditions were observed by Phillips shortly thereafter.

31FMSHRC1432

Regarding the length of time the subject violations existed, the area in the vicinity
of survey stations 8050 and 8045 was illitially mined duiihg the summer of 2006. The sheared
roof bolt in the intersection of the crosscut and the No. 3 entry apparently occurred during the
initial mining cycle by virtue of the fact that the severed shaft of the roof bolt was covered with
rock dust. Knox Creek has admitted that a crib had not been installed to supplement this
damaged roof bolt between the time it was initially damaged and the time it was observed by
Phillips in November 2006, a period of approximately four months. (Tr. 293-96). In addition,
there was another unsupported sheared roof bolt located almost directly over the No. 2 battery
charger inby survey station 8050. This damaged roof bolt apparently also existed since the area
was initially mined.
The evidence also reflects that the sloughed material located along the comer of the right
rib at the inby intersection of the crosscut in the No. 3 entry, compacted by the No. I.scoop,
existed for more than one shift because the No. 1 scoop remained on the battery charger during
the shift preceding Matney's maintenance shift. Consequently, it is apparent that the hazardous
roof conditions went unattended for a considerable period of time, and they were repeatedly
overlooked during the co~e of numerous preshift and onshift examinations.
Moreover, the cited roof conditions, repeatedly overlooked by Knox Creek examiners,
were readily:apparent. The roof sloughage lengthened the,permissible distance between the first.
'rbw ofroofbolts and the rib. The sheared roof,bolt fa:th:e.intersection of the crosscutin the ,.,;·. ·
Noi .3 entry was in a heavily traveled· area. In· addition, it was the vicinity ofa dangered.,off .
area thatrequired supplemental crib support. Finally, the No. 2 battery charger was positioned·
almost directly under another sheared roof bolt exposing miners .to a hazardous roof conditioil:.> · ;

m

,.· 'The

'.degree of danger is the most damaging aspect of this-unwarrantable failure analysis. · :
The· location of the unremedied severed bolt, in the intersection in the No. 3 entry and crosscut,
in proximity to a roof fall area, alone, warrants an unwarrantable failure finding. The sheared
bolt was located in the crosscut at the inby edge of the intersection, eight feet from the
corner of the left rib. This roof bolt served no purpose given the missing retention plate and
"pizza pan" plate. Consequently, there was only one functioning roof bolt between the left rib ·
and the third roof bolt located 12 feet from the left rib, in anintersection that was adjacent to a
dangered-off area where a roof fall had already occurred. In addition, miners using the No. 2
battery charger were also exposed to another damaged roof bolt that was located above.
With respect to whether Knox Creek was on notice that greater compliance efforts were
necessary, it is significant that Knox Creek was cited for inadequate preshift examinations in its
002 MMU on October 31, 2006, only one week before Phillips issued the citations in issue.
Moreover, to abate the October 31st citations, Knox Creek examiners Matney, Stiltner and
Riordan, the examiners that were responsible for examining the 005 MMU area in issue,
were retrained in the proper methods of conducting preshi ft examinations. In this regard,
repeated similar violations are relevant to an unwarrantable failure determination to the extent
that they serve to put an operator on notice that greater efforts are necessary for compliance with
a safety standard. Peabody, 14 FMSHRC at 1263-64.

31 FMSHRC 1433

Finally, there is no evidence that Knox Creek took any action to remedy the hazardous
roof conditions prior to Phillips' Noveiltber 7, 2006, irispection. The long standing nature of
these readily apparent hazardous roof conditions, that were repeatedly overlooked during the
numerous onshift and preshift examinations preceding Phillips' inspection provide an
adequate basis for concluding that the roof condition and preshift examination violations
of sections 75.202(a) and 75.360(a)(l), respectively, are attributable to Knox Creek's
unwarrantable failur~ Accordingly, 104(d)(l) Order No. 7317342 and l04(d)(l) Citation
No. 7317341 shall be affirmed.
b. Knox Creek's Civil Liability

The statiitory civil penalty criteria are·set: forth in section l lO(i) of the Act,
30 U.S.C. § 820(i). In determining the appropriate civil penalty to be assessed, section 11 O(i)
provides, in pertinent part:
... the Commission shall consider the operator's history of previous violations,
the appropriateness of such penalty to the size of the business of the operator
charged, whether the operator was negligent, the effect on the operator's ability to
continue in business, the gravity of the violation, and the demonstrated good faith
of tlie pe:rson charged in attempting to achieve rapid compliance after notification.
of a violation.
' ' '. ' . ·... : .
,,
As noted; the Secretary seeks to iinpose a total civil penalty of $8,300.00 consisting of _, ..
. $4;600.00'.for Order No. 7317342 and $3,700.00 for Citation ·No.. 7317341 ... The parties have :
stipulated that the continuing mining operations of Knox Creek Coal Company, a subsidiary of·..
Massey Energy -Company, will not.be affeCted:by the civil.penalty proposed by the Secretary; . ;..
As charged by the Secretary, the violations are attributable to at least a high degree of negligence.
The violations were abated in a timely manner,. and, there are no other aggravating or mitigating
circumstances that warrant disturbing the total $8,300.00 civil penalty proposed by the Secretary
for the two violations in issue. Consequently, the civil penalty initially proposed by the Secretary
shall be assessed.

8

It is unclear whether 104(d)(l) Citation No. 7317341 that states that "an adequate preshift examination has not been conducted for the active 005 MMU" refers to a single pre-shift
examination, or, a series of pre-shift examinations. I construe this citation to be applicable to a
series of inadequate pre-shift examinations because all foreman/examiners were required to
complete training on proper examination procedures to terminate the citation. (Gov. Ex 3).
31 FMSHRC 1434

·'. ,-.·

c. Personal Liability of Matney
The Secretary seeks to assign personal liability to Matney for the two violations in issue.
Section 110(c) of the Mine Act provides:
Whenever a corporate operator violates a mandatory health or safety standard ...
any ... agent of-Such corporation who knowingly authorized, ordered or carried
out such violation ... shall be subject to the same civil penalties [as the corporate
operator] ....
The preshift examination "is of fundamental importance in assuring a safe working
environment underground." Enlow Fork, 19-FMSHRC 5~ 15 (Jan. 1997) (quoting Buck Creek
Coal Co., 17 FMSHRC 8, 15 (Jan. 1995)). Thus, a mine operator is required to perfonn preshift
examinations to identify hazardous conditions. Id. at 14. (citing 30 C.F.R. § 75 .360(b)).
However, not every inadequate preshift examination that is attributable to a mine operator's
unwarrantable failure provides a basis for personal liability of the preshift examiner under
section 110(c). In other words, a mine operator's culpability for an unwarrantable failure based
on an inadequate preshift examination evidencing more than ordinary negligence may be
insufficient to demonstrate that its agent "knowingly" violated the cited regulation requiring
' -,'
adequate preshi:ft exams. _, The indicia necessary to support a finding that a corporate agentacted ''knowingly"
under section 110(c) .is difficult to articulate. As a general- proposjtion, a "knowing"
violation under section l l 0(c) involves aggravated conduct rather than ordinary negligence. __
BethenergyMines, Inc.; 14 FMSHRC 1232, 1245 (Aug. 1992). However, the analysis does n9t stop there; -While it is true that an urlwarrantable failUr.e also .involves more than ordinary
negligence, there are significant conceptual differences between unwarrantable conduct and
''knowingly" violating a mandatory safety standard. Individuals charged with 11 O(c) liability
should be judged based on their individual knowledge and actions not on the collective actions
or inferred knowledge of the mine operator. Thus, an agent of a corporate mine operator is
subject to 110(c) liability if he has knowledge of a hazardous condition but he deliberately
fails to act. Id.
The operative tenn "knowingly" has been extensively discussed by the Commission and
the Court. The Commission discussed the criteria for determining if there is personal liability
under section 110(c) of the Mine Act in Lefarge Construction Materials, 20 FMSHRC 1140
(Oct. 1998). The Commission stated:
The proper inquiry for detennining liability under section 110(c) is whether
the corporate agent knew or had reason to know of a violative condition.
Kenny Richardson, JFMSHRC 8, 16 (Jan. 1981), affd on other grounds, 689 F.2d
(6th Cir. 1982), cert. denied, 461 U.S. 928 (1983); accord Freeman United Coal
Mining Co. v. FMSHRC, 108 F.3d 358,362-64 (D.C. Cir. 1997). To establish

31 FMSHRC 1435

section 110(c) liability, the Secretary must prove only that an individual
knowingly aCted, not that the individual knoWingly violated the law.
Warren Steen Constr. Inc., 14 FMSHRC 1125, 1131 (July 1992) (citing United
States v. Int'! Minerals & Chem. Corp., 402 U.S. 558 (1971)). An individual acts
knowingly where he is "in a position to protect employee safety and health [and]
fails to act on the basis of iriformation that gives him knowledge or reason to
know of the e:&istence of a violative condition." Kenny Richardson, FMSHRC
at 16
20 FMSHRC at 1148 (emphasis added). Similarly, in Roy Glen, the Commission stated:

Accordingly, we hold that a corporate agent in :a position·toprotect employee·
safety and health has acted "knowingly" in violation of section 110(c) when,
based upon facts available to him, he either knew or had reason to know that a
violative condition or conduct would occur, but failed to take appropriate
preventative steps.
6 FMSHRC at 1586 (emphasis added).
In Freeman United Coal Mining Co. v. FMSHRC, 108 F;Jd;· (D.C. Cir. 1997), the Court

addressed the issue ofindividual knowledge:
·... the meaning of "knowledge" depends upon context and that a continuum of
meaning that stretches from "constructiv~ knowledge" to ''actual knowledge" with
various gradations between .... under the Corninodity Exchange Act, [an]
·individual "knowingly"· induced a vfolation if:he had ~'actual or. constructive
knowledge ofthe core activities that constitute the violation at issue and
allowed them to continue."
108 F.3d at 363 (emphasis added) citing JCC v. CFTC, 63 F.3d 1557, 1567-68 (11th Cir. 1995).
As noted, preshift examiners Matney, Stiltner and Riordan repeatedly failed to note the
cited hazardous roof conditions during at least four shifts preceding Phillips' November 7, 2006,
inspection. While these failures to perform adequate examinations, collectively, provide
the basis for an unwarrantable failure, Matney must be judged on his individual conduct.
Thus, the Secretary must prove Matney knew or should have known of a hazardous condition and
failed to act. In other words, the Secretary must show that Matney knowingly ignored the hazard.
Roy Glen, 6 FMSHRC at 1586 (ignoring a known hazard is a see-no-evil approach to mine safety
that violates section l lO(c)). In this regard, the Secretary seeks to prove, through circumstantial
evidence, that Matney knew, or should have known, that Knox Creek had installed, and
intentionally removed, a crib that was supporting the sheared bolt in the intersection of the
crosscut and the No. 3 entry.

31 FMSHRC 1436

::·:·.

The Secretary has established that Knox Creek had a motive to remove the crib if
it had been installed because there would'only have been approximately ten feet and six inches
clearance between the crib and the right rib of the crosscut. Such a crib would have impeded the
passage of the No. 1 and No. 2 scoops, that are ten feet wide, as they traveled to and from the
battery chargers to the face. However, the Secretary's assertion that a crib had, in fact, been
installed is not based on direct evidence. Rather, it is based on several inferences the Secretary
seeks to draw from several collateral facts.
The Secretary relies on approximately 30 six inch deep by three feet wide crib blocks
that Phillips observed lying on the mine floor along left rib of the crosscut inby its intersection
with the No. 3 entry to infer that a crib recently had been disassembled. Matney testified that
the crib blocks had been used a8 a ramp to repair a continuous miner.
The Secretary also relies on marks that were brownish in color that Phillips reportedly
observed in close proximity to the sheared bolt to infer that a crib had been installed. Phillips has
speculated that the marks are wedge marks that had been left by a crib. Although not conceding
that marks existed, Knox Creek speculates that the roof marks could have been made when the
"pizza pan" was secured to the roof by the bearing plate. The Secretary has not proffered any
photographs in support of her belief that the marks were made by a crib.
In determining the sufficiency of evidence, the Commission has held that "the substantial
evidence standard may be met by reasonable inferences drawn from indirect evidence." ·
Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 (MayJ984). Inferences·based on indirect
·evidence are "inherently reasonable" if there is a "logical and.rational connection between the.
evidentiary facts and the ultimate facttobe inferred." Id However,.ifl the instant case the·· .
· alternative explanations offered by Knox Creek for the collateral facts concerning the roof marks
and the presence of loose crib blocks are as reasonable as the Secretary's speculation.

Significantly, the Secretary, in the citation and order in issue, attributes the exposure to
hazardous roof conditions, and the inadequate preshi:ft examination, to high negligence rather
than to a reckless or a conscious disregard of the need to reinstall a dismantled crib. Consistent·
with the Secretary's high negligence designation, although Matney's preshi:ft examination, like the
examinations of his colleagues, was inadequate and evidenced a high degree of negligence by
virtue of the hazardous conditions that were overlooked, it does not constitute a "knowing"
violation of the cited mandatory safety standards.
While a crib may have been removed for the sake of expediency, in the final analysis,
the Secretary bears the burden of proving, by a preponderance of the evidence, that a crib had,
in fact, been installed. The Commission has noted that the preponderance of the evidence
standard requires the trier of fact to believe the existence of a fact "is more probable than its
nonexistence." RAG Cumberland Resources Corp., 22 FMSHRC 1066, 1070 (Sept. 2000)
(citations omitted). On balance, the Secretary has failed to satisfy her burden of demonstrating
that it was more probable than not that a crib had been installed. Consequently, the Secretary has
31FMSHRC1437

failed in her attempt to establish that Matney acted "knowingly" because he failed to act on the
basis-of information that gave him knowledge, or reason to know, of the existence of hazardous
roof conditions. Although Matney's 36 minute preshift examination was inadequate, in that
hazardous roof conditions were overlooked, the evidence does not reflect that it was illusory, or
otherwise so precursory, to support the conclusion that Matney "knowingly'' violated the subject
mandatory safety standards. Accordingly, the citation and order issued against Matney shall be
vacated.

ORDER

In view of the above, IT IS ORDERED that Knox Creek Coal Corporation's
contests in Docket Nos. VA 2007-15-R and VA 2007-16-R ARE DISMISSED.
IT· IS FURTHER ORDERED that l 04(d)(l) Citation No. 7317341 and
104(d)(l) Order No. 7317342 in Docket No. VA2007-55 ARE AFFIRMED.
IT IS FURTHER ORDERED that Knox Creek Coal Corporation shall pay,
within 45 days of the date of this Decision, a total civil penalty of $8,300.00 in
~atisfacti~n of 104(d)(l) Citation No. 7317341 and 104(d)(l) Order No. 7317342.
Consistent with this Decision, the Secretary has failed to demonstrate that
'Ernest B. Matney knowingly authorized, ordered or carried outviolations of sections
-75.360(a)(l)
75.202(a) of the mandatory.safety standards.' Consequently,
IT IS ORDERED that the personal liability case in Docket No': VA.2008:..215
IS DISMISSED.

and

~\0056

2

Jerold Feldman
Administrative Law Judge
Distribution: (Certified Mail)
Lucy C. Chiu, Esq., Office of the Solicitor, U.S. Department of Labor,
1100 Wilson Boulevard, 22nd Floor West, Arlington, VA 22209-2247
Timothy W. Gresham, Esq., Penn, Stuart & Eskridge, 208 E. Main Street,
P.O. 2288, Abingdon, VA24212
/rps

31FMSHRC1438

APPENDIX 1
31FMSHRC1439

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9?00
Washington, D.C. 20001

December 9, 2009
EMERGENCY RESPONSE PLAN
DISPUTE PROCEEDING

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

Docket No. PENN-2010-103-E
Citation No. 7000435; 10/06/2009

v.
Mine ID 3·6-01818
RS&W Drift Mine

RS&W COAL COMPANY, INC.,
Respondent

DECISION

Appearances: Stephen Turow, Esq., Lynne Bowman Dunbar, Esq., U.S. Department of Labor,
Office of the Solicitor, Arlington, Virginia, on behalf of Petitioner;
Cindy Rothermel, Randy Rothermel, RS & W Coal Company, Inc.,
Klingerst~Wji,
Pemisylvania~ ·for
Respondent.
·
·
.. .
.
·.
. -~ .

Before:

Judge Zielinski

..
-:· ..

.

This case is before :m.e on a Referral of an Emergency Response Plan Dispute by the·
. Secretary of Labor pursuant to s~tion 3 l 6(b)(2)(G) of the Federal Mine Safety and Health Act of
. 1977, 30 U.S.C. § 876(b)(2)(G). 1 At issue is a citatiOn issued on November 6,2009, charging the

1

Section 316(b)(2)(G) of the Act provides a mechanism for expeditiously resolving
disputes between operators and the Secretary over the content of Emergency Response Plans.
Plan dispute resolution
(I) In general
Any dispute between the Secretary and an operator with respect
to the content of the operator's plan or any refusal by the Secretary
to approve such a plan shall be resolved on an expedited basis.
(ii) Disputes.
In the event of a dispute or a refusal [by the Secretary to approve
aprovision of an ERP,] the Secretary shall issue a citation which
shall be immediately referred to a Commission Administrative Law
Judge. The Secretary and the operator shall submit all relevant
material regarding the dispute to the Administrative Law Judge
within 15 days of the date of the referral. The Administrative Law
31FMSHRC1440

Respondent, RS&W Coal Company, Inc., with a violation of the Act for failing to update its
Emergency Response Plan (ERP) to provide for the inStallation of wireless communications and
electronic tracking (C&T) systems at its mine, and failing to state sufficient reasons for not
adopting such systems. A hearing was held in Pottsville, Pennsylvania on November 24, 2009,
wherein the parties submitted all relevant material regarding the dispute. 2 For the reasons set
forth below, the citation is affirmed.
Findings of Fact - Conclusions of Law
The Statutory and Regulatory Backdrop
. In response to a series of tragic accidents in which· underground coahninendost their
lives, Congress enacted the Mine Improvement and New Emergency Response Act of 2006
(MINER Act).3 The MINER Act amended section 316 of the Mine Safety and Health Act of
1977, to require, inter a/ia, that each underground coal mine operator develop and adopt a
response and preparedness plan, or ERP, and submit it to the Secretary for approval and periodic
review. The MINER Act b_ecame effective on June 15, 2006, and the initial ERPs were to be
adopted and submitted by August 14, 2006. The Act requires that ERPs include several
provisions intended to erµtance the ability of trapped miners to survive an accident.

cir

'· The requirements for the installation post-accident wireless coinmunications and ·
electronic tracking syst~s are stated in section 316(b)(2)(F)(ii) of the Act:
··
Post Accident Communications.-. . · ·
,
.
Not Jater than3 years attei- the"<fui~ of enactine~t.Q( th~· Mille
Iniprovement and New Emergency Response Act of 2006, a plan
shall, to be approved, provide
post accident communication .
between underground and surface personnel via a wireless two-way
medium, and provide for an electronic tracking system permitting

for

Judge shall render his or her decision with respect to the plan
content dispute within 15 days of the receipt of the submission.

30 U.S.C. §876(b)(2)(G).
2

Commission Procedural Rule 24 specifies that, ''The scope of [a hearing on an ERP
dispute] is limited to the disputed plan provision ·or provisions." 29 CFR § 2700.24. Respondent
has filed a Notice of Contest of the citation under section 105(d) of the Act. RS& W Coal
Company, Inc., Docket No. PENN 2010-145-R. Challenges to the citation's special findings
dealing with negligence and gravity, if any, can be litigated in that contest proceeding or in the
course of any subsequent civil penalty proceeding.
3

P.L. 109-236 (June 15, 2006).

31FMSHRC1441

surface personnel to determine the location of any persons trapped
underground or set forth within the plari the reasons such
provisions can not be adopted. Where such plan sets forth the
reasons such provisions can not be adopted, the plan shall also set
forth the operator's alternative means of compliance. Such
alternative shall approximate, as closely as possible, the degree of
functional utility and safety protection provided by the wireless
two-wa:y medium and tracking system referred to in this subpart.
30 u.s.c. § 876(b)(2)(F)(ii).
The Problem - Technical Discussion
Underground anthracite coal mines produce coal through "conventional methods,"
i.e., using explosives detonated by electric detonators. It has long been recognized that devices
that emit radio frequency (RF) energy, such as wireless communications systems, can pose a
hazard when used in proajmity to electric blasting circuits. The wires of a blasting circuit
function like antennae, and RF induces an electric current in such circuits which could result in
an unintended detonation. 4
· '
Safety standards for underground.eoal.niines specify nmlierous requirements addressed to,.
the safe handling of explosives. 30 C;F;R.. §§ 75.1300;; 1328. Those standards require that.
blasting circuits be protected from sources of stray electric current, and recognize that stray
electric current can be induced in blasting.circuits by n~arby elec.tric ppwered equipment, cables •
or batteries. The Secretary's regulations·require;:that electric cables and equipment be
·deenergized or removed to at least 50 feet from blasting·boreh'oles before th,e priming of
explosives. § 75.1316(a)(l). Noteably, the regulations also actually require the introduction of
electric current in blasting circuits in order to test for continuity and resistence prior to blasting. 5
Section 75.1323(j) requires that:
Immediately prior to firing, all blasting circuits shall be tested for
continuity and resistence using a blasting galvanometer or other instrument
specifically designed for testing blasting circuits.
4

A 2001 publication by the Institute of Makers of Explosives (IME), Safety Library
Publication No. 20 (SLP-20), entitled "Safety Guide for the Prevention of Radio Frequency
Radiation Hazards in the use of Commercial Electric Detonators," notes that, ''To date there have
been a few authenticated cases of a detonator being fired accidentally by RF pickup." Ex. P-13 at
2. Reports of several incidents, most of which involve unintended detonations caused by RF in
the last 20 years, were introduced by RS&W. Ex. R-3, R-4, R-5, R-6.
5

Continuity and resistence testing assures that the blasting circuit is properly wired, and
that all of the one-ohm resistence detonators have been included in the circuit.
31FMSHRC1442

Blasting galvanometers route electric current through the blasting circuit at an extremely
low level that has been determined to pose no threat ofaC:tivating a detonator, and have been
used safely in mines for many years. MSHA-approved blasting galvanometers are allowed to
introduce electric currents of up to 50 milliamps (mA) and, under some circumstances, up to
l 60mA. Not surprisingly, extensive testing has been done and studies undertaken to quantify the
amount of electrical energy to which blasting circuits and detonators can be safely subjected.
Studies by the U.S. Department of Interior's Bureau of Mines in 1973 and 1981, and the IME's
SLP-20, published in 2001, have been referenced in this proceeding.6 The 50mA permissible
limit is reflected in the Secretary's safety standards. Electric equipment and cables located at
least 25 feet away from boreholes need not be deenergized or moved if "stray current tests
conducted prior to priming the explosives detect stray currents of 0.05 ampere [50mA] or less
through a I-ohm resistor." § 75.1316(a}(2).
There are other generally recognized safe levels of electrical energy to which blasting
circuits and detonators can be subjected. The IME and Bureau of Mines publications refer to a
"no-fire level" of 0.04 watts (W), or 40 milliwatts (mW), for commercial detonators. Tr. 109-13;
ex. P-13 at 14; P-15 at iii. Jhe no-fire level is defined as a 0.1 % firing (99.9% no-firing)
probability with a 95% confidence level, which equates to an extremely low probability of firing.
Chad Huntley, an electrical engineer atMSHA's TechnicaLSupportApproval and Certification
Center, explained that the 0.1 % figure must be considered along with the 95% confideace factor. ·
Tt, ·1 11-13. It dees not mean that the. firing probability is one :in one~thousand. Rather the -.
statistical probability of the occurrence of an event with aprobability of 0.1 % and a 95% .
·confidence.level is on the order of one in 909 million. 7 · The40mWno fire level, which equates
to ardnduced current of 200mA. Tr. 158. It is recognized as a "conservative" limit, because ..
:,many eommerciallyavailabledetonators manufactured in Nortb:·America have no fire levels ··
· higher than40mW ..Detonators tested in 1973 by the Bureau ofMines were found to· have no-fire
levels ranging from 77mW to 275mW. Tr. 114-23; ex.P-15 at 4-4. The Coalstar II detonator,
which is currently approved for use in underground mines, has a no-fire level of 105mW.
Tr. 123-25; ex. P-29. In light of the 200mA current associated with the 40mW no-fire level, the
Secretary's 50mA permissible limit for stray currents in blasting circuits is quite conservative.

6

Franklin Institute Research Laboratories, Technical Report, "Evaluation and
Determination of Sensitivity and Electromagnetic Interactions of Commercial Blasting Caps,"
(August 1973), prepared for the Bureau of Mines, U.S. Department of Interior. Ex. P-15;
Comsul Ltd., Final Report for Bureau of Mines, "The Implementation of UHF Radio
Communications and CCTV Monitoring Systems in a Room and Pillar Metal/Non-Metal Mine,"
March 1981. Ex. P-16.
7

At the hearing, Huntleywas qualified as an expert witness in the field of electrical
engineering and testified that he did not specifically recall the probability, but believed it was one
in nine billion. Tr. 113. The Secretary represented in her post-hearing brief that Huntley had
subsequently learned that he had been mistaken, and that the probability was actually one in 909
million. Sec'y Br. at 4, n. 2.
31 FMSHRC 1443

Tr. 158. It should be noted that permissible power and field strength levels are based upon the
· ·
potential for induced current in one detonator.
The strength of the electromagnetic field generated by an RF device, and the current it
will induce in an electrical circuit, are largely functions of the device's power (generally stated in
Watts) and the distance from the device's antenna. Distance from the transmitting antenna is a
very significant factoi:.-because the strength of the field drops rapidly as the distance increases. At
a distance of one wavelength from an RF antenna the available power in the RF field is only one
one-hundredth (0.01) of the power at the transmitting antenna. 8 At a distance of two wavelengths
it is four times lower, or one four-hundredth of the power at the transmitting antenna. Each time
the distance is doubled, the available power drops by a factor of four. Tr. 127-31; ex. P-15 at
103.

The IME's SLP-20 provides tables of recommended safe separation distances to be
maintained between blasting circuits and different types of RF equipment. It primarily addresses
higher-powered RF sources used in or found near surface blasting operations, and notes that,
''Because of the uncertaiti.ties of RF absorption and scattering within mine tunnels, the potential
hazard can only be evaluated with the aid of consultants." Ex. P-13 at 4. An August 2008
addendum to SLP-20, intended to be more applicable in underground mines, consists of a
"log-Iog·plot" showing acceptable electromagnetic field-strength, as a function of radio .
frequency; "thatone ohni electric detonators can be exp9sed ta while: minimizing the risk of
'inadvertent initiation due to RF fields." Tr.147-49; e,x, .•p;.14.·· ne. addendum·also sets forth a··
formula for calculating the field strength produced by multiple RF sources .
.....

. •

..... Because.of the.importance of safe separation distances, MSHArequires that.
'illanUfacturers of C&T systems specify, and provide justificationsJor,. separation distances for:each component of the. system, and mine operators "mlist specify these safe distances in their .
ERPs ... and account for the total amount of energy transmitted from all devices and other
sources used in the vicinity of blasting circuits." MSHA PPL No. P09-V-l 3, (October 23, 2009).
Ex. P'."19. MSHA began certifying separation distances when approving equipment sometime
prior to 2008, and some presently approved components do not reflect safe separation distances
because they were not required when their approvals were processed. If no safe separation
distance has been certified by MSHA, the operator is required to contact the manufacturer and
obtain a justification for a proposed separation distance. Failing that, MSHA's Technical
Support Approval and Certification Center would be consulted. Tr. 191-99. "MSHA has
approved in ERPs a separation distance of up to 50 feet ... when the mine operator was unable
to specify a safe distance based on a manufacturer's recommendation." Id. at 2.

8

The wavelength of an RF transmission is a function of its frequency. A 400 MHz RF
has a wavelength of approximately 2 feet, and a 900 MHz RF has a wavelength of approximately
one foot.
31 FMSHRC 1444

Wireless C&T systems typically consist of three components; 1) two-way
communications devices, that would be carried by a miner and transmit RF energy only when
sending a message; 2) tracking ''nodes" hard-wired to surface equipmentthat continuously
transmit when activated and are installed roughly every 200 feet along mine entries; and 3) ''tags"
worn by miners that continuously transmit and are read by the nodes as the miners pass by.
When transmitting, each of those components is a source of RF energy that produces an
electromagnetic field. The Independent Miners and Associates (IMA), an association of
anthracite miners, had expressed interest in two MSHA-approved wireless C&T systems for
possible installation in anthracite mines, the L-3 Communications' "Wireless Mesh
Communication and Tracking System" and the Matrix Design Group, LLC's, "RFID Miner
Tracking and Text Messaging System."
The L-3 system operates at 900MHz (one foot wavelength) and is composed .of a radio
handset, which operates at a power level of 1W (1 OOOmW) and has a specified separation
distance of5 feet; a tracking node, which operates at a power level of SW (5,000mW) and.has a
specified separation distance of 7 feet; and a tracking tag which apparently operates at virtually a
zero power level and has a_~pecified separation distance ofO feet. Ex. P-17, P-24; tr. 193-203.
The RF field strength generated by the node would be 5,000mW at its antenna, 50mW one foot
from the antenna, 12.SmW two feet from the antenna and 3.125mW four,feet from the antenna.
......

··. · .Tue Matrix system· operates-at 450MHz.{two foot wavelength}. and is composed of a.·
· 2-way text communicator which operates.at a power level of l:SmW 'and has a specified
separation distance of5 feet; a tracking node which operates at lOmW and:has no specified.
separation distance; and a tracking tag which operates at a power level of 6mW and has no .
: specifiedseparationdistance.9 Ex.·P-17,P;.24;,tr.193-203. TheRRfieldstrengthgeneratedby
the text coiilm:u:nicator would be l 5mW at its antenna, 0.15mW tWo feetfrorit the antenna,~
0.0375mWfour feet from the antenna and 0.009375mW eight feet from the antenna.
Events Leading to the Citation
As specified in the Act, as of June 15, 2009, ERPs were required to provide for post
accident communication between underground and surface personnel via a wireless two-way
medium, and an electronic tracking system permitting surface personnel to determine the
locations of any persons trapped underground. Operators were also permitted to set forth within
the plan the reasons such provisions could not be adopted, and to propose alternative means of
compliance approximating, as closely as possible, the functional utility of the wireless systems.
9

Huntley testified that it is likely that a proposed separation distance of five feet would
be approved for the lower-powered components of the Matrix system. Tr. 196-97. A
justification for a zero separation distance for all components of the system has apparently been
prepared. Tr. 199-202; ex. P-18. However, no formal application for separation distances other
than those specified in MSHA's approvals, has been made, and the separation distances certified
by MSHA in its approvals remain as stated. Tr. 201-02.
31 FMSHRC 1445

Because fully wireless C&T systems were not yet technologically feasible, MSHA sought to
offer guidance to operators on acceptable alternatives to fully wireless systems in formulating the
required revisions to their ERPs. MSHA Program Policy Letter (PPL) No. P09-V-01, issued on
January 16, 2009, stated, with respect to communications systems: 10
General Considerations - An alternative to a fully wireless communications
system used t~eet the requirements of the MINER Act for post-accident
communication either can be a system used for day-to-day operations or a stored
system used in the event of an accident. Examples of currently available
technologies that may be capable of best approximating a fully wireless
communications system include, but are not limited to, leaky feeder, mesh, Wi-Fi
and medium frequency systems. Any alternative system generally should:
a. Have an untethered device that miners can use to communicate with the surface.
The untethered device should be readily accessible to each group of miners working
or traveling together and to any individual miner working or traveling alone.
b. Provide communication in the form of two-way voice and/or two-way text
messages. If:used, pre-programmed text messages should be capable of providing
information to the surface necessary to determine the status of miners and the
· conditions in the mine, as well as providing the necessary emergency response
..
information to miners.
.
. .
·· c. Provide an audible; visual; and/or Vibrating alarm .thatis· activated by an
incoming signal on each untethered device·. The alarm should be distinguishable
from the surrounding environment.
·· · d. Be capable of sending an emergency.message to each of the untethered devices.
· ''-.e. Be installed to·.prevent interference with blasting circuits and other electrical .
systems.·_
Ex. P-4 at 3.
In a March 2009 meeting, anthracite coal miners raised safety concerns about the
installation of wireless C&T systems using radio frequency equipment near blasting components
and blasting operations. Tr. 48. The meeting was held at the headquarters of the Independent
Miners and Associates, an association of anthracite coal miners in MSHA District 1. John
Kuzar, MSHA's district manager for District 1, issued a memorandum on June 4, noting that, in
response to the IMA's concerns, MSHA had agreed to participate in "several in-mine
demonstrations of communication and tracking technology to jointly evaluate the RF levels
emitted." Ex. P-30. Operators of anthracite mines using explosives were not required to submit
purchase orders for such systems, but were required to comply with the MINER Act's
requirement to submit updated ERPs providing for wireless C&T systems by June 15, 2009.

10

Similar characteristics were identified for tracking systems.
31 FMSHRC 1446

On June 16, 2009, MSHA received. a, letter from RS&W, entitled "Addendum to
Emergency Response Plan" stating, in iiS~tirety, tha(''A.Ily system that is guaranteed in writing
and proved safe through extensive testing not to endanger my employees with radio frequency
while using electronic detonators will be acceptable." Ex. P-3. On July 1, 2009, Kuzar
responded to RS&W stating that ''the addendum failed to provide essential details concerning the
nature of the communication and tracking system." Ex. P-4. Kuzar instructed RS&W to submit
an updated ERP that previded specific details of its wireless two-way communication and
electronic tracking systems by July 16, 2009, and that failure to do so would result in the
issuance of a citation. Kuzar also forwarded a copy of PPL P09-V-01, to provide guidance on
what was required under the Act.
On July 21, 2009, MSHA's Technical Support Approvaland Certification Center
conducted extensive testing of the MSHA-approved L-3 C&T system at the Alfred Brown Coal
Company's, 7 Ft Slope Mine in Hegins, Pennsylvania. II The L-3 system was selected because
the IMA had expressed interest in it and the similar Matrix system. Tr. 139. The State of
Pennsylvania's Bureau of Mine Safety, the IMA and representatives of L-3 and the Alfred Brown
mine participated in the teS!filg.
The.testing was done in the gangway of the mine. Two components of the L-3 system_
were installed at the test location; the Access points (nodes), which have a.SW transmit power at
.,900..~30 MHz and a Yagi(directional) antenna;. and Mesh Radio Handsets;. which have.a:lW·.
transmit pow~ at 902-928 MHz and a whip antenna. The nooe's antenna·was placed in nine·'' , ·
different positions and orientations in tJie gangway.. An ·instrument referred to as a ''natda meter"
was \ised to measure electromagnetic field strength at various locations in the gangway; At four ,
loeations one oi two handsets were als~ transmitting, and the strength of the combined RF fields.
was measured. The specific equipment locations, antenna orientations, and measurements.are.·.
presented in the test report. Ex. P-5 at 7-13. The highest measurement of field strength,
11.76 V/m, was recorded at the closest test distance, two feet directly in front of the node's
directional antenna - well within the MSHA-approved safe separation distance for the node of
seven feet.
In a second phase of the testing, a spectrum analyzer and current probe were used to
measure the induced current in various lengths and configurations of simulated blasting circuits,
with the node's antenna and/or the whip antenna of the handset transmitting at different locations
and orientations. The results, as presented in the report, show that the highest reading, was
obtained with 1.5-foot long leg wires shunted together, with the node's antenna 14 feet away and
the handset antenna in direct contact with the wires. Ex. P-5 at 13-17. That reading, converted
to electrical current, was 23mA.

11

Huntley, who testified at the hearing, helped to conduct the tests, and was one of the
authors of the test report.
31FMSHRC1447

The test report, entitled "Hazm;,<f:s of Radio Frequency (RF) Communication Equipment
Operating Near Blasting Circuits at Antbfacite Mines,'' was issued on August 27, 2009. The
results of the test generally established that the equipment could safely be used in typical
anthracite mining conditions.
None of the recorded measurements exceeded the Institute of Makers of
Explosives (IME) Addendum to SLP-20 "Acceptable Field Strength for a One
Ohm Electric Detonator" chart under a variety of conditions, nor did any induced
currents, calculated from the recorded measurements, exceed 50mA. The highest
readings of either measuring method were 11. 76 V/m ... and ... 23mA ....
These maximum numbers are below the IM:E acceptable limit of 20 V /m at 900
MHz and the MSHA maximum allowable current of 50mA (ref. 30CFR section
75.1316).
Ex. P-5 at 5.
Following the test, it was agreed that testing of the Matrix system was not needed,
because its components operated- at substantially lower power levels. Tr. 62, 74, 159-60. The
highest powered component of the L-3 system is the node, with a power output of 5000mW. In
contrast~ the highest powered component of the-Matrix system is the 2-way text communicator,
--With:apower output of 15 inW. Ex.P<-24. ·
· · _-::.: .- ' --- On August 28, Kuzar forwarded a copy of the test report to RS&W; advised that the
-;testing established:that the L-3 system components could safely be operated in anthracite mines,,·
- and that RS&Wwas required to· submit a revised ERP that prov.ided for: updated C&T
. :- ' capabilities~· 'On-September 10, RS&W submitted an ERP revision addressing post-accident ,_ . comniunications and tracking. Ex. P-8. The ERP specified that no totally wireless
communication or electronic tracking system had yet been developed, that the currently approved
wireless C&T systems emit RFs which could inadvertently detonate explosives in the mine, and
that none of the currently approved wireless C&T systems had been tested in an anthracite mine,
most of which are configured differently than bituminous coal mines. Ex. P-8. RS&W
proposed, a8 an alternative, enhancements to its existing hardwired intercom system, pledging to
install additional intercoms at 100 foot intervals along the gangway, and a permissible phone
system at 100 foot intervals along the secondary escapeway. RS&W also sought to continue use
of its existing magnetic tracking board, which reflects miners' locations with color-specific
markers on a copy of the mine map, as called in on the intercom system. Ex. P-8.
On October 5, 2009, Kuzar sent RS&W written notification that its current C&T
provisions did not provide the level of protection mandated under the Act, and therefore, he
would not approve the ·revised ERP. Ex. P-9 .12 Kuzar acknowledged that although totally
12

Section 316(b)(2)(C) oftheAct provides that, in reviewing and approving ERPs, the
Secretary is required to:
31FMSHRC1448

wireless communication and/or electronic tracking systems had yet to be developed, there were
several agency-approved "communication s)'stems that closely approximate the degree of
functional utility and safety protection provided by a wireless two-way communications system .
. . . Thus, .operators may not rely on traditional, hard-wired intercom systems in lieu of more
advanced systems that provide greater miner protection ... ,. Ex. P-9. Kuzar went on to point
out that MSHA believed that updated C&T systems could be used safely in anthracite mines,
provided that sufficient.separation distances were specified. He ordered RS&W to either
specifically identify limitations with particular communication and tracking systems that would
prohibit use in its mine, or update its ERP to include such systems no later than October 28,
2009.
On October 27, 2009, RS&W's President, Randy Rothermel; responded to Kuzar's
October 5 letter stating that he was unable to find a system safe enough for its mine, .and
requested that Kuzar issue a citation for RS&W's failure to provide approved C&T systems.
Ex. P-10. Consequently, MSHA issued Citation No. 7000435 on November 6, 2009, alleging a
violation of Section 316(b) of the Act for RS&W' s failure to develop, adopt, and submit an
updated ERP that provided for wireless communications and electronic tracking systems and
failed to state sufficient reasons for not adopting such systems. Ex. P,-11. On November 10,
2009, pursuant to· the Act, and Commission Procedural Rule 24, 29 C.F.R. § 2700.24, the
Secretary referred the plan content dispute to.the· Commission.. ' The referral prays that the . . _
citation be affirmed and that Respondent be::ordered to submit a compliant revised ERP ,within : .··
10 days of issuance of an order affirming the citation. Respondent prays that the citation .be·
vacated and that the Secretary be directed to approve. alternate C&T systems until such time that
wireless C&T systems have been thoroughly:tested and deemed safe for use in anthracite coal
·mines with a'. "100% confidence level." ·Resp; St for.Hearirig Req. at L. · .

take into consideration all comments submitted by miners or their representatives,
Approved plans shall (I) afford miners a level of safety protection at least consistent
with the existing standards, including standards mandated by law
and regulation;
(ii) reflect the most recent credible scientific research;
(iii) be technologically feasible, make use of currently
commercially available technology and account for the specific
physical characteristics of the mine; and
(iv) reflect the improvement in mine safety gained from
experience under this Act and other worker safety and health laws.
30 U.S.C. §876(b)(2)(c).
31FMSHRC1449

·~·.·

Conclusions of Law - Further Factual Findings
•·

': ~

•:

.

_,. ' ·.,:f-. ~

The Applicable Law
The framework for resolution of Emergency Response Plan Disputes under the MINER
Act was established by the Commission in its initial decision involving MSHA's refusal to
approve an ERP provision. Emerald Coal Res. LP, 29 FMSHRC 956, 965 (Dec. 2007); see also
Twentymile Coal Co., 30 FMSHRC 736, 747 (Aug. 2008).
One of the cornerstone principles with regard to plan formulation
under the Mine Act is that MSHA and the affected operator must negotiate
in good faith for a reasonable period concerning a disputed plan provision:
Carbon County Coal Co., 7 FMSHRC 1367, 1371(Sept.1985). The
Commission has noted, ''Two key elements of good faith consultation are
giving notice of a party's position and adequate discussion of disputed
provisions." C. W. Mining Co., 18 FMSHRC 1740, 1747 (Oct. 1996).
.-

While the contents of a plan are based on consultations between
the Secretary and the operators, the Conimission has recognized that ''the
Secretary is [not] in the same position-as a'priv.ate party conducting arm's
lengtli1negotiations in a free market.".Id. at '1746-.~As one .court ·has noted,
''the Secretary must independently exer~ise [her]judgment with respect to
the content of ... plans in connection with [her]. fmal approval of the
. planJ~:UMWA v. Dole, 870 F.2d 662, 669 n,1-0 (D~C. Cir. 1989), quoting
S. Rep. No. 181, 95th Cong., 25 (1977), reprinted. in Senate ~ubcom~ on
Labor, Com. on Human Res., 95th Cong., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 613 (1978). Ultimately,
the plan approval process involves an element of judgment on the
Secretary's part. Peabody Coal Co., 18 FMSHRC 686, 692(May1996)
("Peabody II"). "[A]bsent bad faith or arbitrary action, the Secretary
retains the discretion to insist upon the inclusion of specific provisions as a
condition of the plan's approval." C. W. Mining, 18 FMSHRC at 1746; see
also Monterey Coal Co., 5 FMSHRC 1010, 1019 (June 1983) (withdrawal
of approval of water impoundment plan was not arbitrary or capricious
where MSHA's conduct throughout the process was reasonable).
Emerald, 29 FMSHRC at 966.
The Commission went on to hold that the appropriate standard of review in ERP dispute
proceedings is whether the Secretary's refusal to approve a proposed ERP provjsion was arbitrary
and capricious.

31 FMSHRC 1450

The standard involves a review of the record to determine whether the Secretary
judgment m~tli~ plan approval process. In
properly exercised her discreti6n
this regard, the Commission's decision in Monterey Coal is instructive. In
a:ffinning a citation for failing to supply data relating to impoundment pond
construction, the Commission applied the "arbitrary and capricious" standard in .
reviewing MSHA's withdrawal of its approval of an impoundment plan:

and

We cannot conclude that MSHA's use of the Table [of
recommended minimum design storm criteria] or its act of
withdrawing the plan approval was arbitrary and capricious ....
[P]rior to issuance of the citation Monterey was given unequivocal
notice of and a reasonable opportunity to comply with MSHA's
interpretation and use of the Table. In sum, we find the course of
action taken by MSHA to have been a reasonable approach, and
not arbitrary or capricious.

Monterey Coal, 5 FMSHRC at 1019 (citation and footnote omitted);
accord Peabody II, -18 FMSHRC at 692 n.6 (in reviewing the Secretary's
refusal to approve a ventilation plan provision, Commission noted that the
plan approval process involv.es an element ofjudgment on the part of the
Secretary that is reviewed under an arbitrary .and capricio'us standard).·
This standard appropriately respects the Secretary's judgmentwhile · ·
allowing review for abuse of discretion, errors.oflaw, and review of the
record under the substantial evidence test ... See· En,ergy West Mining Co., .
18 FMSHRC 565, 569(Apr.1996) ("abuse of discretion'~ has been found
when "there is no evidence to support the decision .or if the decision is
based on an improper understanding of the law") (citations omitted). We
therefore affinn the judge's application ofthe arbitrary and capricious
standard to the plan review. (footnote omited).
Emerald, 29 FMSHRC at 966.
Whether MSHA's Decision was Arbitrary. Capricious. or an Abuse of Discretion
As evidenced by the numerous communications from MSHA's district manager, RS&W
was repeatedly requested to provide infonnation regarding its evaluation of specific wireless
C&T systems and problems or difficulties such systems would pose if operated in its mine. In
response to RS&W's initial cursory "Addendum" to its ERP, Kui:ar promptly advised on July 1,
2009, that because virtually no "essential details" had been provided, evaluation of the plan was
impossible, and provided copies of PPL P09-V-Ol and a list of Questions and Answers specific
to the wireless C&T system ERP requirement. That letter advised RS& W that if an updated ERP
was not recieved by July 16, 2009, a citation would be issued. However, no citation was issued.
Rather, in conjunction with representatives of an association of anthracite miners and the State of

31FMSHRC1451

··'''.~

Pennsylvania, MSHA conducted the July ~1 test of the appr?ved L-3 wireless C&T system in the
Alfred Brown Anthracite Mine. The testfri!f established tliat the system could be safely operated
in anthracite mines, provided that separation distances could be maintained and administrative
controls could be developed to address situations where miners could not maintain such
separations. The test report, which was issued on August 27, was forwarded to RS&W the
following day. The forwarding letter noted that the requirement for submission of a revised ERP
had been delayed to allow completion of the testing, and instructed that an updated ERP must be
submitted no later than September 11, 2009. Ex. P-6. On September 4, Kuzar forwarded a
second copy of PPL P09-V-Ol and an ERP checklist to assist RS&W in developing its plan.
On September 11, RS&W submitted updated ERP provisions for post-accident

communications and tracking, however, no wireless C&T.system was ineluded. RS&W asserted.
that no "safe distance tables" could be accurately proposed by MSHA or the manufacturers, and
that installation of the systems would be impossible due to the "small narrow entries in our
mine," which would threaten the safety of miners by subjecting them to premature detonation of
explosives. Alternative plans were presented that enhanced existing hard-wired C&T systems.
On October 5, Kuzar resp_onded, advising RS&W that its submission did not provide the level of
protection mandated by the Act, and could not be approved. Each of RS&W's asserted concerns
was addressed. RS&W was referred to lists of MSHA-approved semi-wireless C&T systems that
were commercially available. The test results were. cited as ~stablishing the safety of MSHAapproved systems, provided that sufficient separation distances :w~e maintained . ''when
.
tracking/communication componentS are operating (i.e.; turned on or active) in the proximity of
·explosives and detonators," and proper procedures were established. for situations when required
separation distances must be breached to work with explosives. .'·
. ,: ·.
Kuzar specifically requested that; to the .extent that RS&W continued to contend that it

was not feasible to safely conduct mining operations with any available wireless C&T system, it
needed to provide the following information:
(1) specifically identify MSHA approved systems that you have considered;
(2) specify the separation distances that are needed to safely use such systems in

the proximity of explosive devices;
(3) detail each of the anthracite mining tasks that cannot be performed given these
separation distances; and
(4) explain why procedures cannot be adopted (e.g., leaving the
tracking/communication component at the minimum separation distance) that
would allow miners to safely perform these ta~ks.
Ex. P-9 at 3. ·
With respect to RS&W's protest that no testing had been done to detennine whether
approved systems would work in anthracite mines that "twist/tum and pitch upward towards the
surface and contain severe undulations within the coal seams," Kuzar requested that RS&W
31 FMSHRC 1452

specify limitations that were determined to exist with respect to existing systems in light of
RS&w·s particular mine features and/or conditions.. Ex. P-9 at 4. On October 27, RS&W
responded by requesting that a citation be issued, asserting that no system could be found that·
was "safe enough,, for the RS&W mine. Ex. P-10.
It is apparent, from the above, that MSHA fulfilled its obligation to negotiate in good
faith over the disputed ERP provisions. It clearly stated its position on RS&W's submissions,
provided or referred to extensive relevant materials, and requested specific information to
evaluate RS&W's claim that no approved wireless C&T system could safely function in its mine.
MSHA attempted to engage in a dialogue with RS&W, similar to the dialogue that it apparently
was engaged in with other anthracite miners as of the time of the hearing. 13 However, it was
rebuffed by RS&W~ which clearly indicated that it would not include post-accident wireless C&T
systems in its ERP.

In contrast, RS&W provided only cursory information about its safety concerns, and did
not describe any specific problems posed for its operations by the subject C&T systems. Nor did
it attempt to explain how the testing that had been done in the Alfred Brown mine could not be
related to its mine. MSHAno doubt anticipated some ofRS&W's objections because it had
considerable knowledge ofRS&W's operation8 and,was engaged in discussions with other
anthracite miners. 14 The task ofattempting to maintain a ,crucial safe separation distance when
travefu1g· through a four, five or 'everi .a 10-Jootwide entry.thata blasting circuit also runs, through·· .
poses obvious·,di:ffi.culties. Such difficulties might not be insurmountable, however, if proper .
Respondent introduced as an exhibit portions of an ·appti>ved ERP for the UAE Coal
Corp·.·Associates' Harmony Mine, anutiderground:anthracitefiiine, Ex. R-7. That plan specifies
safe separation distances of 50 feet for wireless C&T system components. The Harmony mine is
somewhat unique in that it is relatively flat and most coal extraction is done with mechanized
equipment. Head testified that it had been represented to him that the UAE ERP was the only
MSHA- approved anthracite mine ERP.
.

13

14

At the hearing, the Secretary objected to evidence concerning information as to
RS&W's mining operations. Tr. 212-15. She maintains that argument in her brief, contending
that information that was not available to an administrative decision-maker should not be
considered in evaluating the administrator's decision. Sec'y Br. at 22-24. I have no difficulty
with the argument, as a proposition oflaw. However, MSHA's District 1 conducts inspections of
the RS& W mine, and undoubtedly has detailed knowledge of its mining operations. Thomas
Garcia, supervisory safety and health specialist at MSHA' s District 1, testified that he was
"familiar with the mining methods at the RS&W drift mine." Tr. 29. He also described entry
dimensions in some detail, stated the number of miners, explained what they typically did, and
discussed the various blasting operations. Tr. 32-44. In response to the Secretary's objection to
information regarding the number of detonators used at RS& W's mine, Randy Rothermel,
RS&W's president, explained that MSHA examines the records when it inspects the mine, and is
"as aware as we are" of the numbers of detonators used. Tr. 214.
31FMSHRC1453

administrative controls could be developed that took into account that C&T equipment may not
emit RF energy when not activated, 15 that separation from blasting circuits need be maintained
only when they are wired to detonators, and how such factors interfaced with RS&W's specific
blasting procedures. Only by making a good faith effort to.design wireless C&T systems, could
it be demonstrated whether or not such systems could be used in the mine consistent with the
Act's mandate. RS&W's intimate knowledge of its operations was essential to development of
wireless C&T ERP provisions, and it was RS&W's statutory obligation to do so, or to "set forth
within the plan the reasons such provisions can not be adopted."
RS&W's concerns about the hazards posed by introducing RF sources into the mine's
blasting environment were, and are, understandable and well-founded. Cindy Rothermel,
RS&W's representative arid wife of its president, represehted at the hearing, that her father was
killed by a premature detonation likely due to stray current in a blasting circuit. RS&W's
concerns were understandably heightened by the manner in which some of the technical
information has been stated. A ''no-fire" level, expressed as a 0.1% chance of firing, with a
confidence level of 95%, suggests that there is a one in one thousand chance of a detonation, as
RS&W appears to have Ul1derstood it. 16 The fact that the actual statistical probability of firing is
several orders of magnitude lower, does not completely dispel that .understanding. Moreover,
statements in authoritative technical literature, such as SLP-20, to the effect that the "probability
•of an· accidental firing from RF energy is ·practically.nil,'~, or "extremely remote( could easily not .
be very reassuring to a miner who has to connect detonator leg vyires'.in. close proximity to high- ..
·explosives.
The fact that negotiations concerning C&T-provisions. apparently continue .with other
anthracite miners, is evidence that MSHA is sensitive to such concerns. Garcia acknowledged
that such concerns were legitimate, and stated thatMSHA was intent··on working with operators
of anthracite mines to satisfy their concerns. He explained that, in requesting specific
information from operators, as in Kuzar's October 5 letter, MSHA was looking for explanations
of tasks that could not be performed because of the C&T equipment, and why procedures could
not be adopted to address such problems. 17 "If they were uncomfortable with the system ... are

15

PPL P09-V-1 states that the communication system "can be a system used for day-today operations or a stored system used in the event of an accident." Ex. P-4 at 3.
16

Cindy Rothennel's opening statement included the following, "My son works at the
mine, and yes, I am fearful of the one in one thousand chance that a detonator may explode."
Tr. 25.
17

H. John Head, an expert in the field of mining engineering called as a witness by
RS&W, was concerned about whether separation distances could be maintained from a practical
operational standpoint. While the main blasting circuit that runs to within 75 feet of the portal is
used only to blast the gangway face - typically once per day, individual shots may be fired at the
chute to clear the screen 100 or more times per day. A miner might be able to maintain a
31 FMSHRC 1454

there other administrative controls that they could possibly take to assure that it's - instead of
100 percent sure, it would be 150 percent [sure that] nothing' could happen?" Tr. 64. He later
added, "if they're reluctant to use the system, they felt that they were in danger because of these
radio frequency waves, I'm sure there's something that could be worked out that would be
appropriate - justified for both sides." Tr. 85-86. The give and take process described by Garcia
never occurred, because RS&W did not fulfill its obligation under the Act to design systems for
its mine, or submit a detailed statement of reasons why such systems could not be used, as Kuzar
had requested.
MSHA was left with virtually no choice but to issue the citation that RS&W invited. 18
It believed that wireless systems provide a more effective means .of post-accident communication
and tracking than conventional hardwired systems, and that Congress' :inatidate for such systems
was well-directed. RS& W apparently has no quarrel with that.assessment. Head agreed that
''radios are the preferred means of communication if they can be used safely." Tr. 261. MSHA's
testing in an anthracite drift mine had demonstrated that approved wireless C&T systems could
be operated in that environment within safety parameters recognized within the blasting
community and MSHA' s O!ffl long-standing safety standards, provided that appropriate safe
separation distance8 were maintained and appropriate administrative controls could be developed
and implemented. RS&W did not submit sufficient reasons why such systems could not be used
mitsmine.
.

.•

~

.

:

;

·'.

RS&W argues that the MINER Act requires that approved ERPs must '·'afford miners a ·
level of safety consistent with existing standards, including standards mandated by law and
· rego.lation/l and that requiring the introduction of RF sources into its mine .would violate that
· · provision. 30 U.S.C. 376(b)(2)(C)(ii). There is no- question that- requiring RF soilrces itiits mine
·would create hazards that did not exist under RS&W's currentlyapprovedplan. MSHA's .
October 23, 2009, PPL P09-V-13, confirms that, "Communications and electronic tracking
systems are sources of RF energythat can interfere with blasting circuits," and that "RF fields
from tags and other electronic devices may or may not pose a threat to the detonator and its
circuit." Ex. P-19 at 2. However, those hazards must be balanced against improvements to
miner safety provided by enhanced post-accident communication and tracking systems. That

separation distance of 5 feet in the gangway, but he could not do so in the monkey or coal
workings. Head believed that separation distances of under 7 feet fell into a "gray area," and that
the issue was one of management - "Can we keep the miners consistently a safe distance from
that entire blasting circuit every time we energiie it or every time we hook it up? And I suggest
to you that it's almost impossible to do from a practical standpoint." Tr. 260.
18

Under other circumstances, Kuzar may have exercised discretion to defer enforcement
action against RS&W pending the outcome of the discussion of similar issues with the other
anthracite miners. However, the MINER Act requires that disputes over ERP provisions be
resolved on an expedites basis, by issuance of a citation and immediate referral to the
Commission.
31FMSHRC1455

critical evaluation can be made only by considering the detai.ls. of ERP provisions specifying
precisely how such systems would be used, In RS&w's:Il1i~e.
The Secretary argues that it has been conclusively demonstrated that currently approved
systems can be used safely in RS&W's mine. 19 Whether or not the additional hazards posed by
those systems' RF components can be maintained within acceptable limits is only one factor to
be considered. One of.the administrative controls recognized as necessary to protect blasting
circuits from RF sources is to require that the devices be deactivated and/or removed a safe
distance away. Development of specific plan provisions would clarify how often such devices
would have to be "shelved," and could identify other procedures necessary to accommodate
mining operations that would detract from the effectiveness of such systems. 20 Another factor
that could impact the systems' effectiveness would pe any measures necessary to minimize the
effect of inadvertent non-compliance with administrative controls.21 Head was very concerned

19

To demonstrate that the systems are safe even ifthe safe separation distance were to
be breached, the Secretary introduced a calculation of the cumulative RF field strength of
multiple Matrix system components; six tags, six two-way text communicators and two tracking
nodes, and demonstrated that in the unlikely event that the components were all transmitting at
the same time, the resultant field strength at two meters' distance would he less than the
recognized 40MW no-fire limit. Tr. 164-79; ex. P-23 ~ While two meters is a generous
..
separation distance, considering the layout ofRS&W's~mine, it.should bertoted that there is no
separation·distance specified in MSHA's approval of the Matrix tracking node and tag. Ex. P-17.
·Pursuant to Kuiar's instruction in the October 5 letter,-RS&W would be required to use the .. ·
"'default" SO-foot separation distance for those components. Ex. P-9 at 3~ How the required ~·· ·
·sepatatiori distances would be maintained, and what hnpact requited administrative controls . ·
would have on the effectiveness of the systems and mine operations, are questions that have yet
to be answered. Parenthetically, I note that the Secretary made no attempt to demonstrate that
Kuzar was aware of the calculation when he made his decision.
20

As Randy Rothermel and Alfred Brown explained, because the blasting circuits run
virtually the entire length of the gangway, any C&T component that required a continuous
50-foot separation distance would "have to be checked at the portal," and would provide no postaccident enhancement to miner safety. Tr. 219, 237.
21

In evaluating the need to provide guarding for mining machinery, the Commission has

instructed that the evaluation of the magnitude of the hazard must be considered· in light of
"inadvertent stumbling or falling, momentary inattenti~ or ordinary human carelessness," i.e.,
"the vagaries of human conduct." See, e.g., Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097
(Sept. 1984). In other words, it must be presumed that miners will make mistakes. Garcia and
Brown raised concerns about miners responding to emergency situations, and whether they could
be expected to maintain safe separation distances for RF equipment under such circumstances.
Tr. 61, 236-37. As Garcia acknowledged, it is difficult to predict how miners will respond to
emergencies and it must be assumed that miners will make mistakes. Tr. 61, 78-80.
31 FMSHRC 1456

about the management issues associated with trying to use such systems safely, and observed that
if, because of safe separation or other requirements, miners were disconnected from the system
more often than not- "what's to be gained." Tr. 261-62. Another critical factor in the balancing
exercise is the consideration that the hazards posed to miners by the introduction of RF sources .
will exist on a day-to-day basis, whereas, the enhancements to safety provided by wireless C&T
systems would be realized only following an accident.

I find that the Secretary has carried her burden of proving that MSHA's refusal to approve
RS&W's revised ERP provisions addressing updated C&T systems, which did not include such
systems in its plan or state sufficient reasons why such provisions could not be included, was not
arbitrary and capricious.

ORDER
I find that RS&W violated the MINER Act as alleged in Citation No. 7000435.
Respondent is directed to submit to MSHA on or before January 15, 2010, proposed revisions to
its Emergency Response Plan that comply with the MINER Act's mandate. Included in its
submission must be provisfons for MSHA-approved wireless communications and tracking
systems for use in its mine, complying with all MSHA instructions on the contents of such
provisions~ including separation distances for system components and specific· administrative. ·.
. c~ntmls. to assure· safe operation of the systems. RS~W may also _include reasons. why suGh . :
provisions c.an not be adopted, and propose alternative means. of compliance. RS&W is further·,
direc:ted to engage in good faith negotiations with MSHA over the content of any disputed plan·.·
provisions.. ·
~

'

.. .

The, time specified for submission recognizes that developm~t of.comprehensive ERP
provisions will not be a simple task, and that Respondent may need to secure from manufacturers
any needed justifications for separation distances that are not specified in MSHA approvals.
Ongoing discussions between MSHA and anthracite coal mine operators, hopefully, including
RS&W, may result in reevaluation by either or both parties of the hazards posed by the
introduction of RF devices in such mines and/or the enhancements to safety provided by wireless
systems over alternative measures.

31 FMSHRC 1457

Distribution (by electronic and first class mail):
Stephen Turow, Esq., Lynne Bowman Dunbar, Esq., Office of the Solicitor, U.S. Department of
Labor, 1100 Wilson Blvd., 22"d Floor, Arlington, VA 22209-2296
Cindy Rothermel, Randy Rothermel, R S & W Coal Company, Inc., 207 Creek Pond Road,
Klingerstown, PA. 17941

31 FMSHRC 1458

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19"' S~;- Suite 443

Denver, CO 80202-2500
303-844-3577/FAX 303-844-5268

December 9, 2009
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 2007-844-M
A.C. No. 26-01977-123952

v.
ROYAL CEMENT COMPANY, INC.,
Respondent

Royal Cement Company

ORDER GRANTING SECRETARY'S MOTION
FOR SUMMARY DECISION

Before:

Judge Manning

This case is before me on a petition for assessment of civil penalty under section 105(d)
of the Federal Mine Safety and Health Act of 1977; 30 ,U.S.C. § 801 et. setj. (the "Mine Act").
The case involves one citation alleging a violation of s~tion 47.51.ofthe Secretary's regulations·:
and a proposed civil penalty of $60.00. 30 C.F.R § 47.5L The case was set for hearing in Las ···
Vegas, Nevada. During a conference call before the hearing, the parties agreed that they do not
dispute the essential facts .. I suggested that both patties file briefs on the issues, which I would ,
treat as cross-motions for summary decision, in lieu of holding an evidentiary hearing. The
parties agreed to this procedure for the resolution of this case and each party filed a brief setting
forth its position.
Royal Cement Company operated a quarry and cement plant in Clark County, Nevada.
On April 16, 2007, MSHA Inspector Manuel Palma issu,ed Citation No. 7985457 alleging a

violation of section 47 .51. The citation alleges that the company did not have a current materials
safety data sheet for each hazardous chemical used at the site. The inspector determined that an
injury or illness was unlikely and that the violation was not significant and substantial. The
regulation provides that all mines must have a material safety data sheet available for each
hazardous chemical it uses. There is no dispute that material safety data sheets were not present
at the site. Royal Cement contends that the facility has been shut down since 2003 and that
MSHA did not have jurisdiction to inspect the property.
Royal Cement was started by Aldo R. DiNardo in the late 1980s and the company has
operated the facility on an intermittent basis since that time. Royal Cement states that it shut
down the quarry in August 2003 and that it never reopened. The Secretary does not dispute this
fact. No minerals were extracted from the quarry after that date. The citation was issued at the
adjacent cement plant, which had also been shut down. At the time of the inspection, several
31FMSHRC1459

people were at the cement plant atte~pting to repair it. ],loyal Cement stated that in 2007 and
2008, it did some repair work at the plant "hoping to reopen the mine in the future." (DiNardo
letter dated April 14, 2009). The MSHA inspector arrived while this repair work was taking
place. DiNardo said "[w]hen it became obvious that reopening the mine was an impossible
dream, we ceased all operations." Id. The issue in this case is whether the repair work that was
being conducted at the plant subjected the facility to Mine Act jurisdiction.
I~

SUMMARY OF THE PARTIES' ARGUMENTS

A. Secretary of Labor.
.

.

of

The Secretary states that when Inspector Palma arrived, about 16 empIOyees Royal
Cement were working at the kiln for the cement plant. They had tom out the old concrete and
brick and were getting ready to rebrick it. The MSHA-OSHA Jnteragency Agreement
("Interagency Agreement") provides that MSHA has jurisdiction over "lands, structures,
facilities, equipment, and other properties used in, to be used in or resulting from mineral
extraction." (Written Arguments of Sec'y at 3). The cement plant is a facility that was "set up to
crush, screen, and preheat clinker material to be milled through rod or ball mills in order to grind
[the material] into cement powder." f(i.. As a consequence, the plant was subject to MSHA .
· .jurisdiction.
B. Royal Cement

_ Royal Cement does not deny iltat MSHA has authority fo regulate _and impose standards
011 mines and miners. It argues, howeyer, that MSHA 4oes not have this 'same authority over a
· · mine that was shut down three years' before the subject.1n$pection. · No minerals were extracted
after August 2003. Jn 2007, Royal Cement began "deferred maintenance repairing machinery in
the adjacent cement shop." (Written Arguments of Royal Cement at 1). When the MSHA
inspector arrived, he was advised that no mining was taking place. Jn response, the inspector
said "[y]ou are all miners." Id. Royal Cement contends that the citations are "unfair and illegal
since a mine did not exist." Id. Jn the twelve months that this repair work was going on, the
company had no accidents. _The citation represents petty harassment. The Jnteragency
Agreement with OSHA does not create a mine or justify MSHA overstepping its mandate.
Mining stopped in 2003 and has never resumed. In 2004 another MSHA inspector visited the
mine and stated that he was "closing the file." Id. at 2. "Absent any substantiation that MSHA is
correct in labeling machinery maintenance employees as miners, Respondent requests that all
proposed penalties be denied." Id. The Secretary failed to establish that "an active mine existed
which the Mine Act empowers [her] to regulate." Id.
II. ANALYSIS

Section 67 of the Commission's Procedural Rules, 29 C.F.R, § 2700.67{b), sets forth the
grounds for granting summary decision, as follows:
31 FMSHRC 1460

A motion for summary ciec~~~on shall b~ granted only if the entire
record, including the pfo~dlligs, depositions, answers to
interrogatories, admissions, and affidavits, shows:
( 1) That there is no genuine issue as to any material fact; and
(2) That the moving party is entitled to summary decision as a
matter of law.
I find that there is no genuine issue as to any material fact. The quarry and plant operated
intermittently until August 2003, at which point both were closed. Royal Cement was removed
from MSHA's active mine records. Sometime in 2007, Royal Cement began repairing
equipment and machinery at the cement plant with the intent of restarting operations. MSHA
inspected the plant while these repairs were being made and issued several citations, including
the one at issue in this case. Neither the quarry nor the plant ever reopened for prodl!ction after
this inspection. For purposes of this decision, 1 find that the only work performed at Royal
Cement after 2003 was the repairs described above.
Section 3(h)(l) of the Mine Act defines the term '':mine." 30 U.S.C. § 892(h)(l). For
is defined as "structures, facilities, equipment, machines, tools, or
purposes of this case, a
other property .· ... used in, or to be used in, the milling of ... minerals." Id. The Commission as
well as courts have held that the term '':tnine".must interpreted broadly to effectuate the intent
of the .Mine Act. See, e;g. Cyprus Industriql Minerals Cq. v. F}v!SHRC, 664 F.2d 111·6; 1118 .
(9th Cir. 1981). The Secretary, in interpreting the limits ofher jurisdiction under the Mine Act
the Jnteragency
and the Occupational Safety and Health Act ("OSH Act"), promulgated
.
Agreement to help remove any confusion: as to ·the i"espectjve authority of those agencies. In the
InteragencyAgreement, the Secretacy detemri,i:iedthat cement plants are covered by t)ie Mine Act
·. ·· rather than by the OSH Act. In sectio11 B(6) of that agreement, the Secretary specifically
provided that MSHA has jurisdiction over "alumina and cement plants." 44 Fed. Reg. 22827
(April 17, 1979); http://www.msha.gov/regs/1979mshaoshammu.HTM.

mllie

be

.

In Watkins Engineers & Constructors, the Commission held that cement plants are mines
under the Mine Act. 24 FMSHRC 669 (July 2002). The Commission agreed with the
Secretary's argument that cement plants are ''milling" operations and therefore fall within the
Mine Act's definition of a ''mine." Id. at 676. Specifically, the Commission found the
Secretary's interpretation of ''milling" to include cement plants to be consistent with ''the general
usage of the term within the mining industry, ... the legislative history of the Mine Act, the
Secretary's past enforcement, relevant precedent, and the [Interagency] Agreement." Id.
It is important to note that the respondent in Watkins was a construction contractor that
was constructing a new facility at an existing cement plant owned by a different company. Thus,
its employees were not "miners" in the everyday meaning of that word, yet their work was
subject to the jurisdiction of the Mine Act. The respondent in Watkins challenged the authority
of the Secretary to include cement plants under the jurisdiction of the Mine Act, but the
Commission rejected these arguments. Id. 676-677.

31FMSHRC1461

Based on the above, I find that worJ.c being perform.e.d at a cement plant is subject to the
jurisdiction of the Mine Act because the.definition of the t~rm "mine'' includes mineral milling
and "mineral milling" has been defined to include cement plants. The next issue is whether the
repair work being performed at the Royal Cement plant was covered by the Mine Act given that
the plant was not in operation and no extraction was taking place at the adjacent quarry.
The Mine Act:s use of the language "used in, or to be used in, the milling of ...
minerals" indicates that, for jurisdictional purposes, a "mine" includes not only facilities
presently being used to mill minerals, but also facilities where mineral milling will be taking
place in the future. 30 U.S.C. § 802(h)(l) (emphasis added). This interpretation is bolstered by a
court of appeals decision referencing, with general approval, the interpretation of "to be used" to
mean "contemplated use." Lancashire Coal Co. v. Secy ofLabor, 968 F. D 388, 390 (3rd Cir.
1992). Another federal court held that activities conducted at a site in preparation for future
mining may bring the site within the Mine Act's definition of "mine" for the same reason.
Cyprus Industrial Minerals Co. at 1117-1118.
I find that the activities taking place at the plant on April 16, 2007, were subject to the
jurisdiction of the Mine Act. Although no extraction was taking place at the quarry and cement
was not being produced at the plant, Royal Cementemploye~s were making repairs to the kiln at
the cement plant. DiNardo stated that these repairs were bemg made in anticipation of reopcming ·
: the facility. The repairs were being ~ade to ."structures;" .and "facilin¢s," atthe plant .using·, ·· "
"equipment":and "tools." These facilities had .been previously used to make cement and it was·,~· ..
·Royal Cement's intention to use these facilities for that purpose again. Indeed, the only reas~n
the repairs were being made was to get the plant rei;tdy to reopen; One of t4e principal arguments··
of Royal Cementis that there can be no jurisdiction if minerals are not being extracted from the. ,
ground. The Mine Act and associated case law make clear; howe,ver, that a cement plant is a , ·.,
"mine" and actions taken in preparation of opening a mine will bring the site within the
jurisdictional reach of the Mine Act. As a consequence, the repair work being performed at the
plant brought the site under the MSHA jurisdiction and fuspector Palma had the authority to
issue the subject citation to Royal Cement.

m. APPROPRIATE CML PENALTY
Citation No. 7985457 is affirmed. Section 1lO(i) of the Mine Act sets out six criteria to
be considered in determining appropriate civil penalties. 30 U.S.C. § 1lO(i). MSHA's online
records show that Royal. Cement plant had a history of nine citations in the two years prior to
April 16, 2007. These same records show that Royal Cement was a small, intermittent operator
that employed about 20 people and worked about 10,400 hours in the second quarter of2007.
The violation was abated in good faith. According to MSHA's website, the quarry and cement
plant have now been abandoned. The violation was the result of the company's moderate to low
negligence and the gravity was very low. Based on the penalty criteria, I find that the Secretary's
proposed penalty of $60.00 for the citation is appropriate.

31 FMSHRC 1462

IV. ORDER
The Secretary's motion for summary decision is GRANTED and Royal Cement's motion
for summary decision is DENIED. Citation No. 7985457 is AFFIRMED and Royal Cement
Company is s ORDERED TO PAY the Secretary of Labor the sum of$60.00 within 40 days of
the date of this decision. 1

Richard W. Manning
Administrative Law Judge

Distribution: :

Larry Laiso~:Conference & Litigation Representative, U;S. Department of Labor, MSHA, 1000
· ,..
' Buchanan Blvd., #4; Boulder City, NV·89005 (Certified:Mail)
-,

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• ..

·..:..·"~.

•

•

· . ' • .;.-t

•

Aldo R. DiNardo, Royal Cement Co., Inc., 1436 Kensington Drive,, Fullerton, CA 92831
(Certified Mail)

RWM

1

Payment should be sent to Mine Safety & Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
31 FMSHRC 1463

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9964 / FAX: 202-434-9949

December 11, 2009
CIVIL PENALTY PROCEEDING

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

Docket No. VA 2009-29
A.C. No. 44-07137-16542I-OI

v.
Mine: No.2

PATRIOT MINING, LLC.,
Respondent

DECISION

Appearances:

Francine Serafin, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for the Petitioner;
Billy R. Shelton, Esq., Jones,_ Walters, Turner & Shelton, PLLC,
Lexington, Kentucky, for the Respondent.

Before:

Judge, weisberger:

Statement of the Case ·. · ·

·This case is befQre the com.inissiO.n. based. C>n a petition for assessment of civil penalty
filed by the Secretary of Labor a11Qgfug'the violatjon by Patriot Mining ("Patriot") of vanous
mandatory s8fety standardS set forth ip, Jitj.e 30 Code of Fe~eral .Regulations.
The matter wa8 initially assigned to Judge Michael Zielinski, who scheduled the matter
for December 9, 2008. On December 5, 2008 the case was re-assigned to the undersigned Judge,
and was heard on December 10 and I I, 2008, in Bristol, Tennessee.
The scope of the hearing was limited, pursuant to the parties' agreement, to the issue of
significant and substantial relating to the following citations: 6641392, 6641363, 6641381,
6641385, 6641379 and 6641354. 1 Also, Respondent challenged the existence of the condition or

1

Patriot had filed a motion for an expedited hearing relating to the following " significant
and substantial" violations; 6641354, 6641363, 6641369, 6641370, 6641379, 6641381, 6641385
and 664 I 392. The Secretary did not object to the motion. At the hearing, Respondent withdrew
the request to expedite regarding Citation Nos. 664 I 369 and 664 I 370, and to have them litigated
at a future date.
31 FMSHRC 1464

practices cited in Citation No. 6641392/
I.

Whether Citation Nos. 6641392. 6641363. 6641381. 6641385. 6641379 and
6641354 are significant and substantial

At the conclusion of the limited hearing, a bench decision was rendered which, with the
exception ofthe correction of matters not of substance is set forth below:
A.

Citation No. 6641392

.1:.

Violation of30 C.F.R. § 75.523-l(a)

Patriot operates ail underground coal mine. A battery-operated.scoop
is used to transport materials down to the underground mine. The scoop is
equipped with a parking brake. In addition a ''panic bar" that consists of a
bar on the left side, and another on the right side of the cab. If either ofthese
bars is hit, it has the effect of de-energizing the equipment i.e. a breaker
switch is thiown which completely cuts off electric power to the scoop.

On September 4, 2008, Janies Carroll, an MSHA inspector, inspected
the scoop. After he tested the panic bar, he issued a citation alleging a·
significant and substantialviolation·of 30 C.F.R. § 75.523-l(a), which in
. essence, requires that all self-propelled electric face equipment used in active
workings of underground mines~ '~shall· be provided with a device that will
quickly de-energize the tranlming motors ofthe eqmpinent 1n the event of an
· .
emergency." (Emphasis added).
On the morning of September 4, before the arrival of the inspector,
the operator of the scoop, Jerry Tensel Freeman, was in the process of
conducting his pre-shift examination prior to the use of the scoop. As part of
his inspection he hit the panic bar in order to check the parking brake. The
panic bar successfully put in operation the parking brake, which is one of its
functions; however, Freeman felt that the parking brake needed adjustment
to make it more firm, and he stopped his pre-shift examination.

After Freeman commenced to work on the parking brake, the
inspector arrived on the section and asked Freeman to check the parking
brake. He did it one time and it did not operate, i.e., it did not cut the power.
According to Freeman, that day he hit the panic bar four times; three out of
2

Regarding Citation Nos. 6641354, 6641363, 6641370, 6641379, 6641381, and 6641385,
Respondent stipulated"... to the condition or practice as set out in the citation." (Respondent's
Proposed Stipulations).
·
31 FMSHRC 1465

the four times it did work and did de-energize the equipment. After Freeman
performed his test, the inspector hit the panic bar with nonnal pressure and
it did not de-energize the equipment. He then used additional force and it did
de-energize the equipment.
Regardless of whether Freeman tested the equipment four times or
three times, it is clear that the panic bar did not consistently do what it was
designed to do, i.e., de-energize the scoop in the event of an emergency. I
find that the fact that it did function with the application of additional force
equates to a lapse in time in de-energizing the scoop. Further, in
investigations subsequ~t to the issuance of the citation, it was discovered
that a certain piece of equipment that the panic bars were attached to, which
was critical to the operation of de-energizing, had been bent and prevented
the panic bars from being depressed quickly. Additional force was necessary.
The bent piece was subsequently fixed, and the bar operated properly.
Based on all the above, I find that the evidence supports the finding
of a violation in that the panic bar did not operate consistently and guickly.
The fact that it didn't do it every time certainly indicates that it was not
operating in the manner that it sliould morder to comply with the regulation.
•.••;'"

The operator argues: that Freemanwasprevented from completing the
examination, because he was in theprocess ofhis pre-shift examination, and
had to stop the examination in orderto comply with Carrqll' s requests. I note
that Freeman testified and had he.:coniinµed with the examination he would
have fully tested the panic bar by hitting it on the left side and hitting it on the
right side. Responds argues, as a defense to the citation, that had this been
done he would have picked up on the fact that the panic bar was not operating
quickly, and would have had it fixed. It is Respondents position that the
citation should be dismissed.
Respondent relies on Giant Cement Co., 13 FMSHRC 286 (Febrwuy
18, 1991). (Melick, J.) I find that reliance on this case misplaced. In Giant

Cement, supra. the issue before Judge Melick was not whether there was a
violation of a standard dealing with equipment, not whether equipment was
functioning in conformity mandatory with a regulation. Rather, the operator
therein was charged with not having made corrections in a timely manner,
and Judge Melick held that it was premature time to find a violation because
the inspection had not been done yet. In contrast, the case at bar, the issue is
not whether a violative condition was corrected in a timely manner. The
operator herein was cited on the ground that a piece of equipment was in such
a condition that it did not comply with a regulatory standard. It is too
speculative to rely on the fact that this condition would have been picked up
31 FMSHRC 1466

on a pre-shift examination, and would have been acted upon, especially in
light of the fact that at times the bar sometimes worked, and at other times
sometimes it didn't work. It's just too hypothetical to rely on the independent
judgment and action of a person as a way of defeating the violation.
For all these reasons, I find that the Secretary did ~stablish a violation
of Section 75.523-1, supra.
2.

Significant and Substantial

A "significant and substantial" violatioi;t is described in section 104(d)( 1) ofthe Mine
Act as a violation "of such nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A
violation is properly designated significant and substantial "ifbased upon the particular facts
surrounding the violation there exists a reasonable likelihood that the hazard contributed to
will result in an injury or illness of a reasonably serious nature." Cement Division, National
Gypsum Co., 3 FMSHRC 8_25 (April 1981).

In Mathies Coal Co., 6 FMSHRC l, 3-4 (January 1984),. the Commission explained
·. · its: interpretation of the term "significant and· substantial" as follows:

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 1129 (August 1985),
the Commission stated further as follows:
We have explained further that the third element of the Mathies formula
"requires that the Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an injury." U. S. Steel
Mining Co., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized
that, in accordance with the language of section 104(d)(l), it is the
contribution of a violation to the cause and effect·of a hazard that must be
significant and substantial.
U. S. Steel Mining Company, Inc.,
6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Company, Inc.,
6 FMSHRC 1573, 1574-75(July1984).

31 FMSHRC 1467

Following the dictates of Mathies, supra. I find that the operator did
violate a mandatory standard, and this contributed to the risk of an accident
happening, i.e., a miner banging a head on a low roof or running over a cable.
The key issue is the third factor in Mathies, i.e., whether the Secretary has
established the reasonable likelihood of a of an injury-producing event.
-The scoop at issue does not have a canopy. The average height roof
is 48 inches, according to the inspector's testimony that was not contradicted.
There are places where as·measured by him, the height was only 42 inches.
Thus there was a risk of the scoop operator coming in contact with the low
roof and having to push the panic bar very quickly.·.. If it does not work
quickly, any risk of resulting injuries would be exacerbated. fu addition, the
inspector described various physical conditions that would tend to support a
reasonable likelihood of an injury occurring event in addition to the low
height of the roof. The inspector described poor visibility, the fact that there
were, at times, persons, machinery, and cables in the vicinity ofthe operation
ofthe scoop. None ofthis testimony was impeached or contradicted. He also
indicated that as the battery of the scoop runs down it creates a condition
where the equipment could become stuck in th~ tramming mode, and as a
result, ''the brake" will not stop the.scoop. (Tr. 35). :Taking into account a
combination of all the above, I find the Secretary has established a reasonable
..... ·. - likelihood of an injury-producing event. ·
The inspector also testified that there was nre~onable likelihood of
various injuries that he described as contusions; abrasiQns,broken limbs, and
also crushing injuries. This testimony was notcontradicted or impeached.
For all the above reasons I find that the third and fourth elements of
Mathies have been met, and that the Secretary has established that the
violation was significant and substantial.
B.

Citation No. 6641363

L.

Violation of30 C.F.R. § 202(a)

Citation 6641363, alleges a violation of30 C.F.R. § 75.202(a), and
sets forth the existence of various conditions in that formed the basis for the
issuance of the citation. The inspector testified regarding the existence of
these conditions. fu essence, the Company does not dispute the existence of
those facts. Under these circumstances and, I find that a reasonably prudent
person familiar with the industry would have recognized that additional
support is necessary, and so I find a violation of Section 75.202(a).

31 FMSHRC 1468

2.

Significant and Substantial

In addition to the existence of a violation of a mandatory standard,
because of a lack of adequate roof support in the cited area, I find that the
violation contributed to the hazard of a roof fall. With regard to the third and
fourth elements set forth in Mathies, supra. i.e., the reasonable likelihood of
a roof falt and resultant serious injuries. I note a combination of factors in the
record. :in addition to the cited conditions, the inspector testified to three
cracks in the roof in the area, each 15 feet long and between I/8th of an inch
and 1/4 of an inch wide. This testimony was not impeached or contradicted.
The testimony ofthe operator's witnesses indicated that the main function of
the roof bolt heads and plates was to prevent drawrock :from falling. The
inspector testified that he observed drawrock. approximately five feet by two
to three inches thick, on the floor under the area cited. The witness for the
company, Jerry Maggard, indicated that when he was in the area he did not
see any drawrock on the floor. I don't find this testimony sufficient to
contradict that of the inspector. Maggard was not in the area at the same
time·that the inspector was. He was there about 10 hours later. Thus, his
testimony does not contradict what was seen by the inspector atthe time that
he saw it. Also; I find the latter's demeanor credible on this·point.
:

. : ~.

With regard to. exposure of miners ·to: the hazzard, I note first of all
that pumpers are required to go to the area once a weekto examine a pump.
Also, pre-shift examiners eriter the area daily. l take ~cognizance of the
argument of the company, in essence, that the shearing ofthe bolts and the
creation of the conditions observed by the. inspector would have been
observed in any subsequent examination. Also, it is a standard operating
procedure of the company to note any hazardous conditions and tag the area
where they exist, in order for the conditions to be corrected. Whether that
would have been done in this case is somewhat hypothetical. It depends upon
the judgment of the respondent's examiner.
Considering all the above and the fact that the miner's are exposed
to the cited area on a regular basis, I find that the third and fourth elements
of Mathies, supra. have been met. I thus concude that the violation was
significant and substantial.
C.

Citation No. 6641381

L

Violation of Section 75.202(a), supra

With regard to Citation 6641381, the operator has stipulated to the
existence of the conditions referred to in the citation which indicates the
31 FMSHRC 1469

existence of various cQnditions, including a rock brow. The inspector
elaborated on that condition with regard to the hazards of a roof fall. A
reasonably prudent person would have recognized that the roof was
unsupported, and that additional support should have been provided. Since
none was, I find a violation of Section 75.202(a), supra, as charged.
2.

Significant and Substantial

Essentially for the reasons I set forth above, iJJ../J:J!, I find that the first
two Mathies, supra. elements have been met. However, there is a serious
issue with regard to the third element ofMathies, supra. The evidence would
appear to indicate that there was probably a reasonable likelihood of a rock
fall. However, in order to fit within the third element the it must be
established that there was a reasonable likelihood that the rock fall will result
in serious injuries. There has to be evidence of exposure of miners on a
somewhat regular basis. The inspector indicated that he saw tracks in the
Cited crosscut However, the record is not clear. Although these tracks may
have existed, was this a one-time event? There isn't any evidence to indicate
that vehicles with tracks go into the area on a regular basis. The Secretary
argued that individuals who perform examinations of the adjoining entries,
(the .track and the travelway entries), could enter.the cited crosscut, and
persons could traverse the crosscut to examine. the. pump. Certainly,. these
events are possible. but there isn't any evidence that travel into the area was
reasonably likely to have occurred.. The only evidence with regard to travel
in that area based upon personal knowledge consists ofthe testimonyofMike
Williams, the operator's mine fonnan; I found him a credible witness. He
outlined his route of travel, both in examining the travelway and belt entries,
and the pump which he does on a daily basis. In executing all these duties
none of his routes took him through the crosscut at issue. He also indicated
that in examining the travelway entry when he looks into the crosscut in
question, he is able to observe violative roof conditions, without the necessity
of entering into a crosscut. I find there is not any persuasive evidence that
there was a reasonable likelihood that miners would enter the crosscut at
issue on a somewhat regular basis.
Next, although there was a reasonable likelihood of a fall from the
various conditions referred to, there isn't any evidence in the record that is
persuasive with regard to the fall propagating out beyond the boundaries of
· the crosscut into areas where persons travel, i.e., the adjacent entries. There
isn't any evidence as to the distance between the specific violative conditions,
and the various entries. For all these reasons I find that it the third element
of Mathies, supra. has not been established and that the violation was not
significant and substantial.
31FMSHRC1470

D.

Citation No. 6641385

L.

Violation of Section 75.202(a). supra

I take into account the stipulation by the company that it does not
contest the existence of the conditions set forth in the citation. Basically the
facts alleged in the citation, and set forth by Carroll in his testimony do not
in any sigmficant fashion differ from those presented regarding Citation No.
6641381. So for the reasons I set forth in my decision with regard to that.
matter, I find that a violation of Section 75.202(a), supra has been
established.

2.

Significant and Substantial

I do not find any significant distinction in the facts presented here and
the facts presented regarding Citation No. 6641381. There is evidence of
tracks in the crosscut in issue. Carroll referred to several tracks, three and
four-wheelers. However, there wasn't any evidence adduced as to or how
often vehicular traffic goes through this crosscut. The record is silent as to
whether the presence of tracks wasa one-time occurrence. Also, were is not
any facts· adduced relating to· the reason· why· the vehieles went into the
crosscut. There was· adduced evidence that there was a'rock.duster·ii1.the
area, but there wasn't any evidence adduced· as to how frequentlythe crosscut
is rock dusted. The Secretary has the·burden on all these issues~ I firici that
there is not clear and conVincing evidence that miners are required to' be
present in the crosscut a:t issue· on 'a regular or frequent basis. For these
reasons, I find that the third element ofMathies, supra. has not been met and,
therefore, the violation is not significant and substantial.
E.

Citation No. 6641379

L.

Violation of 75.202(a). supra

The uncontroverted evidence indicates the presence of a brow that
extended 10 feet. The evidence adduced yesterday established the hazard that
this condition creates. Therefore, I find that a violation of Section 75.202(a),
supra, has been established.
2.

Significant and Substantial

A critical issue is presented with regard to the specific location ofthe
violative condition. It appears to be the Secretary argument that even if the
violative condition was on the "tight side" ("back side'') of the entry, miners
31FMSHRC1471

who shovel and rock dust would be expose,ci to the hazzards contributed by
the existence of a brow. I find that there is not clear and convincing evidence
in the record to establish that miners do shovel or perform other duties on the
back side of the belt. The record is silent regarding the distance between the
belt and the rib on the tight side; whether it is physically possible to shovel
and perform other duties on this side; and whether all such work can be
performed from the wide side. There is not any credible evidence regarding
under what conditions and how frequently work would have to be done on the
tight side, if at all. The inspector offered his opinion regarding some ofthese
issues. However, I find that the record does not contain any factual bases for
his opinions. I focus on the fact that the Secretary has the burden of proving
by a preponderanc~ of evidence all elements of the citation at issue,
specifically the third element of Mathies, supra, i.e., the reasonable
likelihood of a rock.fall causing a serious injury. In order to meet this burden
the evidence adduced by the .Secretary must be clear and convincing that the
violative condition was on the wide side, which the evidence clearly
establishes_is the area where men regularly traverse to perform various duties,
including maintenance. 3 However, the inspector's testimony on this matter
was not consistent. He first indicated that the violative.condition was on the .
wide side orthe walk side. However, on ~ross;.examination he indicated that
after the citation wa,s issued, in preparation for abatement six timbers were.
installed on the back side. Further, I note the inspectors' statement on crossexamination tbat six timbers wer~ installed on the back side. However, later
on in the trial he changed his testimony and :indicated that timbers were set
.on the wide side. He a,ttempted to explain that iticonsistency by indicating;
in essence, that he just did not· ·recall. Because his testimony was·
inconsistent, I find it somewhat unreliable.
Also, the inspector's notes indicate conditions on the walkway side
of the belt. (Gov't Exhibit 10). However, his testimony was not clear
whether this statement was based on his recollection, or upon his having read
notes that were taken by a trainee who was along with him in the inspection.
It is not clear and convincing and that the statement was based strictly on his
own recollection.
Maggard testified that he was the person who actually installed the
timbers in question. He testified unequivocally that the timbers that were
installed that formed the basis of the abatement, were on the off side and not
on the walk side of the belt. I observed his demeanor and found him a
credible witness.

3

1 note that examiners travel the wide side on a daily basis.

31FMSHRC1472

For all these reas~ns I find that the Secretary has not established by
clear and convincing evidence that the violative condition was on the walk
side. The weight ofevidence establishes that the condition existed, but on the
narrow side. The evidence has not established that miners are subjected to
being in that area on a regular basis.
Based on all of the above, I find that the Secretary has not established
the existence of the third element set forth in Mathies, supra. Thus, I find
that the violation was not significant and substantial.
F.

Citation No. 6641354

.L

Violation of Section 75.202(al. supra

Essentially the reasons that I indicated with regard to the other
citations involving issues ofinadequate roof support, I find that there was a
significant area ofunsupported roof as depicted on Joint Exhibits 2A and 2B,
and testified to by the inspector. The existence of these conditions were not
put into issue by the operator. Therefore, I find the Respondent did violate
Section 75.202(a), suprl:v

2.-

Significant and Substantial ' ; ·

·First of all, I note that this is de novo proceeding and in analyzing the
third element of Mathies, ·:1 have to' ascertairi if the eilideiice establishes that
the violative condition was such that an injuryproducing event, i.e. a roof
fall, was reasonably likely considering continued nonnal mining operations.
The fact that the Company took action after the conditions were pointed out
by the inspector really doesn't have much relevance. The analysis must focus
on the relevant of conditions within the context of continued mining
operations. I note that, as distinguished from the last two cases, the violative
condition was on the wide side of a belt entry, an area where people travel.
This side is where belt examiners are in the area daily. Also, shovelers work
at that side. I find the existence of a hazzard of a roof fall existed along with
exposure ofminers. Certainly any rock falling on persons would cause a very
serious injury. I find that the third and fourth elements of Mathies, supra.
have been met.
Therefore, I find the Secretary has established the violation therein
was significant and substantial.

II.

Penalty
31FMSHRC1473

After the hearing, the parties entered into extensive settlement negotiations, and reached a
settlement regarding the remainder of the citations in this case, and the penalties for the citations
that were litigated. On November 25, 2009, after nwnerous extensions, the Secretary filed a
motion seeking approval of the parties' agreement. The original assessment was $22,062 and the
parties request approval of their agreement for civil penalties totaling $12,094.

I reviewed the_parties' representations, along with all the evidence and filings in this case,
and find that the settlement is consistent with the Federal Mine Safety and Health Act of 1977
("The Act"), and I approve it.

· It is ORDERED that within 30 days of this decision, the Respondent shall pay a total
civil penaltyof$12,094.00.

AA~

Administrative Law Judge

....
Distribution:
Francine Serafin, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209:-2247
Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, PLLC, 151 N. Eagle Creek Drive. Suite
310, Lexington, KY 40509
·
·
/Ip

31 FMSHRC 1474

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTAATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9964 / FAX: 202-434-9949

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

December 28, 2009
CNIL PENALTY PROCEEDING
Docket No. KENT 2008-778
A.C. No. 15-07082-142073-03

MineNo.1

FREEDOM ENERGY MINING CO.,
Respondent

DECISION

Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, and Vicki Mullins, CLR, Mine Safety and Health
Administration (MSHA), Pikeville, Kentucky, for the Petitioner;
Carol Ann Marunich, Esq., Dinsmore & Shohl, LLC, Morgantown, West Virginia
for the Respondent.
Judge Weisberger

Before:

·,

This case is before me based on a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor {"Secretary''), alleging violatiqns by Freedom Energy Mining Company
(''Freedom") of30 C.F.R. § 75.202{a) and.§ 75.400. Pqrsuant to notice, the case was heard in.. , _, __
Richmond, Kentucky on October 1_5, 2009. Subsequent to the hearing, ·each party filed proposed . .
findings of fact and a brief.
I.

Violations of 30 C.F.R. § 75.202(a)

After both sides rested, the parties agreed to make oral arguments and accept the format
of a bench decision. The decision, with the exception of corrections of non-substantive matters,
is set forth as follows:

A.

Citation No. 6657078

L

Violation of 30 C.F.R. § 75.202(a)

Freedom Energy operates the coal mine at issue. On February 7,
2008, MSHA Inspector Roger Workman inspected the underground
operation. He examined the belt entry, and observed gaps in a comer of a rib
located at crosscut No. 21 where it intersected with the belt entry.

31FMSHRC1475

He issued a citation alleging a violation of 30 C.F.R. § 75.202(a) which
provides as follows: "[t]he·roof, face and ribs of areas where persons work
or travel shall be supported or otherwise controlled to protect persons from
hazards related to falls of the roof, face or ribs and coal or rock bursts."
The inspector testified that the gap was fourteen inches in the rib side
and along the crosscut side~ and six inches wide in the rib side along the belt
entry. As a consequence of the gaps that extended to the top of the ribs, a
block at the intersection of the track entry and the crosscut had separated
from the ribs. The block was approximately three feet wide along the
~osscut side and thirty inches wide along the entry side.
Respondent conceded that the facts established a violation. Further,
the inspector's testimony as to the conditions he observed was not
contradicted. Thus, I find that there was a violation of Section 75.202(a).
2.

Sipificant and Substantial

The critical issue is whether or not the violation was significant
and substantial as alleged in the.citation.
A "significant and substantial" violation is described in
Section 104(d)(l) of the Mine Act as a violation "of such nature as could
significantly and substaiitially;contribute to the ·cause and effect of a coal ·
or other mine safety or health' hazard/'. 30 U.S.C. § 814(d)(l). A violation
is properly designated significant and substantial ''if, based upon the
particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness
of a reasonably serious nature." Cement Division, National Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), the
Commission explained its interpretation of the term "significant and
substantial" as follows:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under National
Gypsum, the Secretary of Labor must prove: (1) the
underlying violation of a mandatory safety standard; (2) a
discrete safety hazard--that is, a measure of danger to safety-contributed to by the violation; (3) a reasonable likelihood
that the hazard contributed to will result in an injury; and (4)
a reasonable likelihood that the injury in question will be of
31 FMSHRC 1476 ·

.. '

.";

~

a reasonably serious nature.

In U.S. Steel Mining Company, Inc., 7 FMSHRC 1125, 1129
(August 1985), the Commission stated further as follows:
We have explained further that the third element of
the Mathies formula "requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result
in an event in which there is an injury." U. S. Steel Mining
Co., 6 FMSHRC 1834, 1836 (August 1984). We have
emphasized that, in accordance with the language of section
104(d)(l ), it is the contribution of a violation to the cause and
effect of a hazard that must be significant and substantial. .
U. S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (August
1984); U. S. Steel Mining Co., Inc., 6 FMSHRC 1573, 157475 (July 1984).
(emphasis added).
The record establishes that Respondent violated a mandatory
standard, i.e., Section 75.202(a). Also, I find, ·based upon the testimony of
the inspector, that people do work in the area, although it is not clear how
frequently they work in the area and;how close to the rib they are when
they perform: their duties. However,:there certainly is a possibility, as
explained by the inspector, that the c~b could •fall, and a person :could be
pinried ,between the rib ang the belt~' and cfti:shed,· or seriously injur¢d. At .
this point:..J amjust recognizing that a h~ard was created. lam not·
commenting at all upon the degree of the hazard.
The critical issue in this case is the third element set forth in
Mathies, which requires a reasonable likelihood of an injury-producing
event. Here the injury-producing event would be material falling off the
rib. The record does not contain sufficient evidence that there were facts
in existence that would have made the injury-producing event reasonably
likely to have occurred.
The inspector indicated that portions of this rib or a rock could fall
on persons working in the area. However, there is an absence of any
evidence of the existence of any physical conditions that would lead to a
conclusion that the hazard of a fall of either the entire rib or a portion was
reasonably likely to have occurred. There was not any evidence of any of
the ribs being under pressure. There was not any evidence adduced of
deterioration of the rock pillars. There was not any evidence presented of
any defects in the roof. Therefore, I find that the evidence is insufficient to
31FMSHRC1477

establish the third element of Mathies. Hence, I find it has not been
established by a preponderance of the evidence that the violation was
significant and substantial.
3.

Penalty

-The Secretary conceded that the violation was abated in a timely
fashion. The Secretary submitted a list of the company's history of
violations. I fmd there is not anything in that exhibit to militate in favor of
an increase or decrease in penalty.
The parties stipulated that the imposition ofa penalty would not affect
the operator's ability to continue in business. Also, the parties stipulated
regarding the coal production of the company, as apparently relating to its
size. However, there is not any other evidence relating production statistics
to the size of the company. Therefore, I find that there is not sufficient
evidence ~ the record to justify either an increase or a decrease in penalty
based upon that factor.
I find the grav.ity of the violation to·have been:mpderate. I find that,
regarding gravity, the.focus of the.evaluatienis the degree of serfousness in
terms of the type ofinjury, ·even though the likelihood;ofits occurrence may
be remote; Since there was a possibility of a person being crushed .or
suffering a brokenbone, I conclude that the levelofthe gravity was moderate.·
I find that the cited·conditions were extensive anq obvious due to the
height and width ofthe gap in the.ribs in two locations. However, there is not
any persuasive evidence as to the length of time the conditions existed. The
inspector indicated that he observed that there was rock dust in the cracks,
which would indicate that the cracks were in existence first, and then the area
was rock dusted. But the record does not contain any evidence when the last
rock dusting occurred in relation to the cracks.

·Brian Slone, Respondent's mine foreman, testified that the company
had not been cited by previous inspectors for the cited conditions. This
testimony was not impeached or contradicted. Further, there is not any
evidence that the company had any prior knowledge of these conditions. I
thus find the existence of factors significantly mitigating Respondent's
negligence.
Taking into account all of the factors set forth in Section l IO(i) of the
Federal Mine Safety and Health Act of 1977 ("the Act"), I find that a penalty
of $250 is appropriate.
31 FMSHRC 1478

B.

Citation No. 6657084

L

Violation of 30 C.F.R. § 75.202(a)

On February 12, 2008, Workman issued a citation based upon the
existence- of a crack in the roof in the No. 1 crosscut, alleging a violation of
Section 75.202(a).
Workman indicated that the crack extended approximately twenty feet
in the intersection. He approximated that it was between one inch and
eighteen inches wide. According to.Workman, some sections may have been
smaller; some areas larger. Workman indicated that he observed jagged
pieces of rock. He also indicated that miners do,·on.occasion, work in the
area. Rodney Chapman, one of Respondent's mine foremen, who
accompanied Workman, did not contradict Workman's testimony regarding
the dimensic:>ns of the crack.
It is Respondent's position that cribs had been installed in the area,
and as a consequence th{ll'e was not any hazard. · · :
. ,.
.

.

~

I find, taking into· acc.ount the length and width of the crack, and the ·
inspector's observation of jagged pieces ofrock, that there was some hazard·
related to a ·fall of the: roof.:, I thus find that· it has been -established that
Respondent violated Section. 75202(a). •.· ·

.

2.

···.:""

Sipificant and Substantial

The inspector was asked for his opinion as to why he found the
yiolation significant and substantial. 1 His testimony is as follows:
Q.
Okay. And why did you think an accident was
reasonably likely?
A. Well, this area is real muddy ...
... It's got mud and water on the mine floor, and you've got
your noise from your belt head. And then you got miners that
has to work in this place to maintain it. And that eliminates
your -- you can't hear the -- if your roof made a noise, you
wouldn't hear it for the belt head. And if you're standing in
mud too long, it limits your mobility. So I -- if a piece of this

1

Some of his testimony was in response to questions regarding gravity, and some was
given in response to spe~ific questions regarding significant and substantial.
31FMSHRC1479

rock fall, I don't.know if a person could move fast enough to
get away from it or I don't think he'd hear it.

***

Did you mark this particular violation as significant and
substantial?
-A. Yes, I did.
Q. Why?
A.
Because you got men working in the area. The belt
line's under violation to be cleaned and rock dusted. If an
accident would occur, it would be the -- more than likely it
·
would be a permanently disabling injury.
(Tr. 51-53.)
Q.

I note that the critical issue, the reasonable likelihood of an
injury-producing event, i.e., a roof fall, was not addressed. There is not any

persuasive. evidence that would tend to establish a reasonable likelihood of
the roof falling, i.e. the specific conditions that would have made such an
event reasonably likely to have occurr.ed. Therefore, I find that the Secretary
has not met her burden ofestablishing that the violation ·was significant and
. substantial. Hence,J find the.violationwas:not significant and·substantial.
··, ;·.

Penalty

A number of factors :are in common with those I discussed with
regard to the prior violation, except for the following;.the-cited condition
was extensive and obvious due to its length and width; the company's
witness testified that cribs had been installed a few days, or maybe a week,
before the citation was issued, and an inference could be drawn that this
condition had been in existence at least a few days before it was cited.
Considering all the factors in 11 O(i) of the Act, I fmd that a penalty
of $500 is appropriate.
II.

Violations of 30 C.F.R. § 75.400
A.

Citation No. 6656083

1.

Violation of 30 C.F.R. § 75.400

On February 12, 2008, Workman inspected the tail end of the B-9 conveyor belt. He
indicated that he observed accumulations of loose coal, float dust, fine coal, and coal inside the
tail roller, which was sixty-eight inches off the ground. He indicated that the coal was piled at
31 FMSHRC 1480

both ends of the roller, extended one half the way up the shaft of the roller, and was twelve
inches deep. He testified that there was coat"inside the belt frame, and it was in contact with the
bottom belt of the conveyor. According to Workman, the belt was running in the accumulations,
which were black at the roller, and dry at the tail piece. Further, there was float coal dust on the
mine floor under the tail piece. The float coal dust extended from rib for to rib for approximately
320 feet outby the tail. He described the accumulation as a thin coat on top ofrock dust, and
estimated that it was abeut a sixteenth of an inch to a one-eighth inch deep. However, he did not
measure its depth. Essentially, the operator did not contradict or impeach the inspector's
testimony with regard to the extent and location of the accumulations of coal.
The inspector issued a citation alleging a violationof30 C.F.R. § 75.400 which, as
pertinent, provides as follows: "Coal dust, including fl.oat coal dust deposited on rock~dusted
surfaces, loose coal, and other combustible materials, shall be cleaned up arid not be .permitted to
accumulate in active workings, or on diesel-powered and electric equipment therein." I find
based on the testimony of the inspector, and considering the extent of the accumulations, that the
operator was not in compliance with Section 75.400.

2.

Sipificant and Substantial

,· The inspector characterized the violation as::being ·significant and substantial,, .In this. ·..
•.connection, he concluded that a hazard:existed at the tailpiece because he has ·'~seen, tailpieces . '
·when they allowed the coal to run in them to the bearing to gethot and start smoking and
sometimes catch on fire. [sic]" {Tr. 167.) He explained his reasons for markingthe gravity of the
violation as "reasonably likely" as follows:
At the bearing, it wasn't runiling liot·at that time, in a few minutes
running it could dry the grease out. And then you'd have the metal inside the
bearing running metal to metal. And it could· become hot and ignite fire at
. the tailpiece because there's combustible material at the tailpiece.
(Tr. 170.) (emphasis added)

In this connection, he stated that coal dust was in contact with the bearing and was getting
inside the bearing. He opined that with continued operations for two to three hours, the lubricant
"probably" would dry out. (Tr. 174.) He testified that he ''had that happen in the past in mines
[he] worked at." (Tr. 175.) He was specifically asked to explain why he marked the violation as
significant and substantial, and he indicated that there was "a good possibility" of ignition at the
tailpiece because the bearing was being exposed to combustible material, "and due to people
working outby and from being in smoke." (Tr. 176.)
I find that the record establishes the first two elements set forth in Mathies, 6 FMSHRC 1.
Although the inspector opined that in normal operations the lubricant and the bearing would dry

31FMSHRC1481

out after two or three hours causing friction which will ignite the combustible material,2 there
was not any evidence adduced as to how frequently lubrication is checked, or more is added.
Aside from proffering his opinion, the inspector did not provide any basis for his conclusion with
regard to the amount of time it would take, in normal operations, for the lubricant to dry out.
Further, I note the absence of ignition sources or conditions which would have
made it
reasonably likely for a fire to have resulted with continued operations. Thus, there was
not any evidence of a hot or red bearing or other metal members, metal to metal rubbing,3 float
coal dust in the air, or inadequate air ventilation.
For all these reasons, I find, within this context, that it has not been established
that the hazard of an injury producing event, i.e. a fire or explosion, was reasonably likely to have
occurred. Thus, I conclude that it has not been established that the violation was significant and
substantial.
3..

Penalty

I incorporate herein the earlier discussion of penalty .factors relating to the
-company's operation as set forth above, supra Section I:. -~e Secretary indicated that ·thy
·violative conditions .were abated in a timely fashion. Because the accumulations :existed .for· a
length of 320 feet extending rib to rib, I find that they were ·extensive;, especially considering that
the entire length· of the belt was only approximately 1, 100 feet , ·
The evidence is not clear with regard to the .length of time that the conditions .had
been in existence, There is not any evidence that the belt w~ out ofalignment which could have
caused the accumulations to have occurred very quickly. Also, Workman testified that the
accumulations were dry at the tailpiece, which would tend to indicate that any spillage was not
very recent. However, there was not any specific evidence adduced as to whether the
2

lt is significant to note that in earlier testimony, when he was specifically asked to

provide his reasons for considering the violation to be "reasonably likely," he explained that as a
consequence of the lack of lubricant and resultant metal to metal contact within the bearing, it
"could become hot and ignite fire." (Tr. 170.) (emphasis added) This qualification dilutes the
weight to be accorded his subsequent testimony that the dry condition of the bearing "will" ignite
combustible material. (Tr. 171.)
3

It is significant that at cross examination, Workman was asked whether he identified any

heat source. He responded as follows: "Well, I think the tail burning is a heat source because
even though it wasn't hot, it had a potential. And had the mine continued to run that way, I think
you would have a hot bearing." (Tr. 191.) (emphasis added) In the absence of any further
explanation, I find that this testimony is insufficient to predicate a finding that it was "reasonably
likely" that continued operations would have resulted in a hot bearing.
31FMSHRC1482

accumulations were uniformly "dry'' throughout their various locations, nor was there evidence
adduced as to whether the inspector actually touched
accumulations and, ifso, at what
locations. On the other hand, Rodney Chapman, who accompanied Workman, testified that the
accumulations were wet, and had a "shiny glow" (Tr. 229.), which indicated to him that the
material had been sprayed when it came through the feeder, and that the accumulations had
recently occurred. Considering all of the above, I find that the level of negligence was no more
than moderate.

the

Because the accumulations could have resulted in burns or smoke inhalation, I
find that the level of gravity was moderate.
Considering all of the factors of n O(i) of the Act, I find that a penalty of $500 is
appropriate for this violation.

B.

Citation No. 6657082
1.

_ Violation of 30 C.F.R. § 75.400

On February 11, 2008, Workman examined the interior of an electrical control
-starter box, which supplies power to a conveyor beltdrive.: ·He said that he observed float du,st on
.the·floorofthebox and on the electrical componentS .. :He described thel1oat dustasblackand .·_ . •
·dry. He issued a citation alleging a violation of Section 75.400::. Workman's testimonyregardirig
the accumulation of float-coal and dust was not impeached or contradicted. Thus, based upon his
testimony, I find that Respondent violated Section 75.400.

2.

Sipificant and Substantial ·

· "·

Workman opined that ignition inside the box due to a spark was reasonably likely
to have occurred, because the box is powered by 480 volts. Also, should an arc occur, flames
could shoot out and injure a miner as persons travel by the box. In this connection, he noted that
one person services the box once a week. Also, the belt head in the area is serviced once every
twenty-four hours. Workman indicated that a person could suffer burns or smoke installation.
Workman was asked specifically whether the violation was significant and
substantial and he indicated in the affirmative because men work in the area,·and if there was an
arc inside the box it "could" cause an ignition of the coal dust inside the box "and create serious
fire." (Tr. 184.)
On cross examination, he indicated that there was only one ignition source, which
would be a short circuit inside the electrical box. He indicated that he did not observe any bare
wires; the wires and cables were insulated. Further, significantly, Workman indicated that when
he inspected the box there was not any arcing or sparking, "[j]ust the potential." (Tr. 206.)
Arnold Fletcher, an MSHA inspector and electrical specialist, accompanied
31 FMSHRC 1483

Workman during the latter's inspection on February 12. He indicated that he looked inside the
starter box and that it was covered with float dust that was grey to black in color. He indicated
that there were items in the box that "could be" ignition sources, such as the presence of several
electrical components, including a breaker and transfonners. (Tr. 215.) He indicated that all
these components are "bonded" together with an open-end connection and are not insulated;
there is not anything to keep the dust from getting on them. (Tr. 217.) According to Fletcher,
when dust accumulates on the connections, "carbon tracking" results, causing a "very violent arc
flash, ... [and the box will] bum down." (Tr. 217-18.) However, he indicated that he does not
recall "seeing any type of evidence of any past history of violent arc flashes on [the] box." (Tr.
225.)
·· ·Chapman, who accompanied the inspector, opined that any material in the box
was not reasonably likely to become explosive because he did not see anything that would put
float coal dust in suspension inside the box. (Tr. 248-49.)
In evaluating the third element of Mathies, the likelihood of an injury-producing
event, i.e. a fire, I note the absence of ignition sources. I take cognizance of the testimony of
Fletcher regarding uninsulated connections or connectors within the box which could cause
carbon tracking resulting in a short circuit and violent arcing and flashing, causing the box to
bum. However,- there is not any evidence in the record that there was any carbon tracking on.any
connection or-connector, nor is there evidencethat, in continued operations, carbon tracking .
, would·result, especially to the extent of C(lusitig violent arcing. "'Indeed, there was not any
evidence ofanyarcing or sparking or flashing within the box. Significantly, neither inspectors'
testified that there was any dust in suspension, nor did they indicate the presence of any ,
conditions that would be likely to cause the float dust to go into suspension. ·Moreover;· it would :
appear that the presence of gaskets on the door o:f the box would 'somewhat reduce somewhat the
likelihood of the entry into the box of air of a velocity sufficient to cause the interior float dust to
become suspended. Within the above context, I find that the third element of Mathies has not
been established.4

2.

Penalty

The Secretary has indicated that the citation was abated in a timely fashion. I find
that should a fire have resulted, it could have caused bums or smoke inhalation. Accordingly, the
level of gravity was moderate. There is not any evidence as to the length of time the violative
conditions had exist~ nor was evidence adduced regarding the last time prior to Workman's
observations that the interior of the box was actually inspected. Workman opined that the
accumulations existed more than a week because the box had "sealed lids on it." (Tr. 182.) I find

4

1 take cognizance of Bob and Tom Coal Co., 16 FMSHRC 1974 (Sept. 1994) (ALJ) and
Beech Fork Processing Inc., 13 FMSHRC 576 (Apr. 1991) (ALJ). These cases were decided by
fellow Commission judges and are not binding. To the extent that they are not consistent with
the above decision, I choose not to follow them.
31 FMSHRC 1484

his opinion somewhat speculative. I thus find that the level of negligence was less than
moderate. Taking to account all the remaining factors set forth in Section 11 O(i) of the Act as set
forth above, supra Section I, I find that a penalty of $450 is appropriate.

ORDER
It is Ordered tfiat, within 30 days of this decision, Respondent shall pay a total civil
penalty of$1,700 for the violations found herein .

. /(J

L---

~eisberger

Administrative Law Judge

Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Stre.et,
Suite 230, Nashville, TN 37219-2456
Vicki Mullins, Conference Litigation Representative, District 6, District Office, 100 Faye
Ramsey Lane, Pikeville, KY 41501
Carol Ann Marunich, Esq., and Sara Ghiz Koran, Esq., Dinsmore & Shohl, LLP, 215 Don Knotts
Blvd., Suite 310, Morgantown, WV 26501

/Ip

31 FMSHRC 1485

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

December 31, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CNIL PENALTY PROCEEDINGS

Docket No. KENT 2007-318
A. C. No. 15-17587-118112-01
Docket No. KENT 2007-319
A. C. No. 15-17587-118112-02

v.
Docket No. KENT 2007-344 ·
A. C. No. 15-17587-119033-01

OHIO COUNTY COAL COMPANY,
Respondent

Docket No. KENT 2007-345
A. C. No. 15-17587-119033-02
Freedom Mine
DECISION

Appearances: Mary Sue. Taylor, Esq., Office of the Solicitor, U.S. Departlllent of Labor,
Nashville, Tennessee, on behalf of the Secretar)r of Labor;
Melissa M. Robinson, Esq., William B. King, II, Esq., Jackson Kelly, PLLC,
Charleston,.West Virginia, on behalf of Ohio County Coal Company.
Before:

Judge Zielinski

These cases are before me on Petitions for Assessment of Civil Penalties filed by the
Secretary of Labor pursuant to section 105 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815. The Petitions allege that Ohio County Coal Company is liable for eleven
violations of the Secretary's Mandatory Safety Standards for Underground Coal Mines, and
propose the imposition of civil penalties in the total amount of$7,610.00. A hearing was held in
Evansville, Indiana, and the parties filed briefs after receipt of the transcript. At the
commencement of the hearing, the parties moved for approval of a settlement agreement
resolving six of the alleged violations. The Secretary agreed to vacate two citations and
Respondent agreed to withdraw its contest of four citations and to pay the assessed penalties in
full. That proposed settlement will be approved herein. For the reasons set forth below, I find
that Ohio County committed four of the five remaining violations, and impose civil penalties in
the total amount of $3,350.00.

31 FMSHRC 1486

Findings of Pact - Conclusion,s of Law
From November 2006 through April 2007, the Secretary's Mine Safety and Health
Adniinistration conducted inspections of Ohio County's Freedom Mine, located in Henderson
County, Kentucky. The eleven citations at issue in these cases were issued during those
inspections. Ohio County timely contested the violations and assessed civil penalties.
Citation No. 6692124
Citation No. 6692124 was issued by MSHA inspector Anthony Fazzolare on
November 28, 2006. It alleges a violation of 30 C.F.R. § 75.202(a), which requires that coal
mine roofs, faces and ribs, i:ri. areas where persons work or travel, be supported or otherwise
controlled to protect persons from hazards related to falls of the roof, face or ribs and coal or rock
outbursts.
The violation was described in the "Condition and Practice" section of the Citation as
follows: 1
Located at the XC 34 just inby the "2A" Belt tail there were 8 damaged roof bolts.
These roof bolts have had draw rock fall from around them exposing areas of
unsupported top meastiring approximately 13_ -feet~ 7 inches by 6 feet 6 inches or
47.5 square feet. Another area measured approxiD:iately 15 feet by 10 feet, or 150
square feet. A breaker/feeder had been sitting in this spot and was just moved to
the "2B" belt tail last shift. Failure to identify and qorrect this condition indicates
a higher than moderate degree of negllg~nce on the operator'~ part. Any miners
woiking in this area could easily hit by falling rock.

be

Ex. G-9.

Fazzolare determined that it was reasonably likely that the violation would result in a lost
work days or restricted .duty injury, that the violation was significant and substantial ("S&S''),
that one person was affected, and that the operator's negligence was high. A specially assessed
civil penalty in the amount of $4,100.00 was proposed for this violation.
The Violation
As noted in the citation, the area in question was located in or near a crosscut, just inby
the tailpiece of the 2-A belt. The citation was issued at 9:45 a.m. On the previous midnight
shift, a feeder that had been at that location was moved about 240 feet onto a new beltline
designated 2-B. That belt was at a right angle to the 2-A belt and dumped coal onto it. The
1

Grammar and spelling errors have been corrected in quotations from documents
prepared in the field.
31 FMSHRC 1487

feeder was a Stamler BF 17, a very large piece of equipment, approximately 40 feet long and 14
to 16 feet wide, weighing about 40 tons. Iris a relatively tall piece of equipment, which makes it
difficult to position properly in the Freedom mine, where the coal seam is only 42-48 inches
high. Tr. 242-43. Walter Wood, Ohio County's maintenance manager, traveled with Fazzolare ·
on the inspection and confirmed the observations noted in the Citation.
Ohio County does not contest the fact of violation. It argues that the violation was not
S&S and that its negligence was less than moderate, and requests a corresponding reduction in
the assessed penalty.
Significant and Substantial
An S&S violation is described in section 104(d)(l) of the Act as a violation "of such
nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard." A violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result !fl an injury or illness of a reasonably serious nature." Cement Div.,
Nat'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).

· The Commission has explained that:
.

'

In order to establish that a violation of a·maiidatofy safety standard is

significant and substantial under NationaLGypsum, the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety s.tandard; (2) a discrete.
safety hazard--that is, a measure of danger tO safety--contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.

Mathies Coal Co., 6 FMSHRC l, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary ofLabor, 861
F.2d 99, 103-04 (5th Cir. 1988), ajfg Austin Power, Inc., 9 FMSHRC 2015, 2021(Dec.1987)
(approving Mathies criteria).
fu U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission
provided additional guidance:

We have explained further that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." U.S. Steel Mining Co., Inc.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(l ), it is the contribution of a violation to the
cause and effect ofa hazard that must be significant and substantial. U.S.. Steel
31 FMSHRC 1488

Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
This evaluation is made in terms of"continued normal mining operations." U.S. Steel,
6 FMSHRC at 1574. The question of whether a particular violation is significant and substantial
must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC
498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
The fact of the violation has been established. A measure of danger to safety was
contributed to by the failure to properly support the mine roof. 2 An injury to a miner struck by
material falling from the unsupported area would most likely be reasonably serious. Therefore,
the primary issue in the S&S analysis is whether the violation was reasonably likely to result in
an injury causing event.
The area in question was located where the belt line made a 90 degree tum. Prior to the
feeder move, miners had used the area as a regular travelway. However, a new route had been
created, and it was no long~ used for that purpose. Tr. 240. Persons were required to be in the
area approximately three times per day. Belt examinations were done on each of two production
shifts, and an on-shift examination was conducted on the third shift. Tr. 83-84, 257, 263, 266.
The likelihood of an injury producing' event must be evaluated by considering the
likelihood of two· specific events occurring? simultaneously, a rock or other material falling from
·the roof and the presence of a miner directly underneath it. The frequency with which rocks, .
·sufficient to cause-a reasonably serious injury;·wouldfall from.the-inadequately supported ai:ea is
unknown and unpredictable. There is no evidence that any material fell from the area while the
inspection party was present. Persons passed through the: area three times per day, although not
necessarily under the inadequately supported roof. Fazzolare did not know for certain whether
persons would travel under it. Tr. 83. Belt examiners traveled on one side of the belt, and could
conduct their examinations without going into the area of danger. Tr, 83, 258. Moreover, it is
likely that an examiner would have noticed the problem and avoided exposure to the
inadequately supported roof. As Wood noted, "that's their job," and they should have seen and
corrected the problem, "like we did." Tr. 257. Because of the uncertainty of potential rock falls,
and the fact that those potentially exposed to the hazard were trained examiners who were in the
area infrequently and should have observed and avoided the hazard, I find that the occurrence of
an injury causing event was unlikely.
0

The Commission and courts have observed that the opinion of an experienced MSHA ·
inspector that a violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co.,
20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal, Inc., v. MSHA, 52 F.3d 133, 135-36

2

As with Citation No. 6692129, Ohio County contends that fully grouted bolts
continued to support the immediate roof in the absence of support plates. That contention is
rejected. See the discussion, infra.
31 FMSHRC 1489

(7th Cir. 1995). Fazzolare certainly qualifies as an experienced MSHA inspector. However,
while it is possible that a miner could have been injured as aresult of the violation, I find that the
Secretary has failed to prove that it was reasonably likely that an injury causing event would
occur, as opposed to could occur. See Amax Coal Co., 18 FMSHRC 1355, 1358-59 (Aug. 1996)
(to prove S&S nature of violation, Secretary must prove that it is reasonably likely that an injury
producing event will occur, not that one could occur). Accordingly, I find that the violation was
notS&S.
Negligence·
Fazzolare determined that Respondent's negligence was high because he believed that the
condition existed prior to the move of the feeder, and should have been discovered during the
preshift examination done before the third-shift crew started to work. Tr. 74-75. Ohio County
contends its negligence was no more than low, because the damage occurred during the move of
the feeder, and there had been no intervening examination. Fazzolare disagreed, because the
damage to the roof was in a location consistent with it having been caused by ram cars, and
believed that those movirtg the feeder would have known of any damage caused during the move.
I find Fazzolare' s testimony more persuasive. From his experience, he believed that the
damage had been caused by ram cars striking the mine roof while loading coal onto the feeder.
Tr. 6J:66; 74-75, 92. As he described it, ram cars would ride up:on spilled coal as they backed' ,
up tothe feeder's loading platform (referred to as the ~'dttckbill'.);.and the tail of the car would hit
the mine roof. Tr. 63-64. Wood confirmed that there is "inherently a lot of spillage'~ in the
loading process. Tr. 250. The damage would have been done.Gin production shifts and would .. ··
have~existed before the start of the non-production third shift; during which the feeder was •..:.
moved. Fazzolare· also believed that the location, nature and extent of the damage was consistent·
with damage caused by ram cars in the loading process.
Wood testified that the damage could ''very easily" have occurred during the feeder move.
Tr. 243. As Wood described the procedure, the feeder would first be trammed back away from
the belt. The part of the feeder that dumped onto the belt would often be up against the mine
roof, and would scrape the roof as it was trammed back. Tr. 244-45, 274-75. He stated that the
damaged bolts were not actually in the crosscut, where the ram cars loaded, but were between
coal pillars, where the feeder could have scraped the roof as it was trammed back. Tr. 254.
Fazzolare testified that the damage was extensive, and was located in the crosscut, where
the ram cars would have dumped coal. Tr. 60, 74-75, 92. While his recollection of events on the
day of the inspection was, admittedly, ''vague," he had recorded in his contemporaneous field
notes that the location of the roof damage .was in the crosscut, which was consistent with his
theory of causation. Tr. 56; ex. G-10. I find that the location of the inadequately supported roof
was in the crosscut, where ram cars had loaded. The extensiveness of the damage also supports
Fazzolare's version of events. He testified that, if the damage had been caused during the move
of the feeder, it would not have been as extensive. Tr. 74-76, 92. Wood testified that the feeder
31FMSHRC1490

would be trammed back away from the belt only for a short distance, i.e., 18 to 20 inches, then
lowered to facilitate the move. Tr. 274, Once lowered, Wood did not believe that further contact
with the roof would be likely. Tr. 275. Wood's explanation of the cause of the damage is
inconsistent with the extensiveness of the damaged area.
I find that the damage to the bolts had been caused prior to the feeder move, and should
have been discovered during the preshi:ft examination for the prior shift. Accordingly, I :fiiid that
Ohio County's negligence was properly assessed as high.
Citation No. 6692129

a

· Citation No. 6692129 was issued by Fazzolare on December 7, 2006. It also alleges
violation of30 C.F.R. § 75.202(a). The violation was described in the "Condition and Practice"
section of the Citation as follows:
Draw rock had fallen from around the permanent roof support on the haul road for
MMU 001-0 exposing unsupported top measuring approximately 10 feet by 8
feet, or 80 square feet. A vehicle had traveled under the unsupported top.
;.

Ex.·G-U. : .,·· ..•

:1·

.

"

Fazzolare detennined that it was reasonably likely,that the. violation would reslllt in a lost .
work days or restricted duty injury, that the violation was s&S, that one·person was affected; and_,,
that the operator's negligence was moderate; A civil penalty.in the anrount of$838.00 was
·proposed for this violation.
. ·
The Violation - S&S
_ This violation also involves an area of inadequately supported mine roof. As with the
previous Citation, Ohio County does not challenge the fact of the violation. It disputes the
Secretary's S&S and negligence allegations. The S&S analysis involves the same considerations
as the preceding citation. There, because only trained mine examiners might encounter the
hazard, and any exposure would have been infrequent, the violation was determined to be not
S&S. However, the area in question here was located on a haul road, an area :frequently traveled
by rank and file miners. Tr. 97. Several types of vehicles traveled the road, some of which did
not have canopies to protect the operators from falling rocks. Tr. 96-97. Material had fallen
from around one bolt and loosened the plate, creating an area of inadequately supported roof
approximately 8 feet by 10 feet. Tr.· 194. At least one vehicle had traveled under the
inadequately supported roof area Tr. 95. These facts substantially alter the outcome of the S&S
analysis.
Ohio County argues that the subject area was to the side of the entry, and that the grouted
bolt still retained most of its holding power, making the fall of additional material, and an injury

31FMSHRC1491

causing event, unlikely. Fazzolare did not dispute that the bolts retained some support for the
main roof. His concern was the "immediate" mine roof> where draw rock could become loose
due to the effects of being exposed to the mine atmosphere, particularly drying during the winter
season. Tr. 99-100. Plates held against the roof by the bolts provide the primary support for the
immediate roof. I find his testimony more credible. The bolt's grouting did not substantially
protect against falls of draw rock from the immediate roof, which was a recurrent problem at the
Freedom mine. Tr. 2Q-2-03. At this location, even the plate had not provided sufficient support,
because draw rock had fallen from close to the bolt, loosening the plate. While the inadequately
supported area may have been more to the side of the entry, it extended almost to the mid-point,
and vehicles using the haul road could travel under it. Charles Travis, the Freedom Mine safety
manager, acknowledged that there were some vehicle tracks over to the side of the entry. _Tr 199.
As noted in the citation, at least one vehicle had traveled under the inadequately supported atea. ·
I find that, as to this citation, the Secretary has carried her burden of proof, and that the
occurrence of an injury producing event was reasonably likely. The violation was S&S.

Negligence
.Fazzolare determined that Ohio County's negligence was moderate based on an
assessment that the condition had existed for at least one shift .. However, a8ide from that entry in
his notes, he did not recall what formed the basis of that conclu.Sion. Tr. 98 .. He did not know·
when the rock had fallen; or when a vehicle had traveled in the area. Tr. 109" AB to-the·vehicle
· that had traveled the· area, he admitted that the operator may have been an hourly person; and not
realized that the condition existed. Tr. 107-08. · In light of these concessions, I find Ohio·
. County's negligence to have been low.
Citation No. 6692130
Citation No. 6692130 was issued by Fazzolare on December 7, 2006. It alleges a
violation of 30 C.F.R. § 75.517, which requires that power wires and cables be insulated
adequately and fully protected.
The violation was described in the "Condition and Practice" section of the Citation as
follows:
The energized 995-volt trailing cable for the Joy 14/15 Continuous Miner,
Co. No. M-13, located in MMU 001-0, was not adequately insulated. Upon close
inspection, with the power locked and tagged, the inner wires of the cable could
be seen. Continued dragging of this cable across the mine floor will eventually
bare these inner wires and expose a potential shocking hazard.
Ex. G-12.

31 FMSHRC 1492

Fazzolare determined that it was reasonably likely that the violation would result in a lost
work days or restricted duty injury, that the violation was S&S, that one person was affected, and
that the operator's negligence was moderate. A civil penalty in the amount of$838.00 was
proposed for this violation.
The Violation
The rubber-coated cable supplying 995-volt electrical power to the continuous miner runs
from the miner, along the rib of the entry, to a power center. It consists of two power leads, two
ground wires, and a monitor wire. It is also shielded, i.e., the cover includes a conductive layer
that is designed to pick up any electric current leaking from the inner leads. and cut off pe>.wer to
the cable through a ground fault system. Tr. 214. On the day in question, Fazzolare examined a
spot on the cable where it had been spliced. The tape covering the splice had been ''roughed up."
Tr. 213~ He examined it closely, bending and manipulating it, and was able to see the inner
leads. Tr. 213. After the power had been cut off, the splice tape was cut away. The inner leads
were intact and remained insulated, and the cable's shielding was also intact. Tr. 218.
While Ohio County argues that there was no defect in the cable before Fazzolare
examined it, it does not challenge the fact of violation, but argues that the violation was notS&S ·
·:and that its·negligence was less than moderate, and requests a corresponding reduction in the
a8ses'sed penalty.
''
•. • •

,)o.

.'

~

.

:':!:

s&s ..
. .

Fazzolare believed that a miner could receive an electrical shock by handling. the
•deteriorating splice in -the cable. Tr. 117, 132. He did not dispute the fact that the insulation on
the electrical conductors was intact, such that the splice did not present a shock hazard atthe tim:e
of the inspection. His concern was that, with continued dragging of the cable along the mine
floor, the opening would become larger allowing small rocks to enter, "eventually'' wearing away
the insulation of the inner leads "if not caught." Tr. 122, 129. The presence of the shielding and
monitor wires did not alter his analysis, because he cited a recent example where a miner was
injured handling an electrical cable by current that was below the threshold of the ground fault
system. Tr. 125-26.
Travis, who traveled with Fazzolare, testified that the opening in the splice tape was
extremely small, and would not have been perceived as a problem by most observers. Tr. 21920. The shielding and insulation of the conductors was intact, and the violation was abated
simply byre-taping the splice. Tr. 221. He agreed that the splice could deteriorate if not
properly cared for, but noted that splices are checked on a regular basis and re-taped if necessary.
Tr. 228-29. He also explained that miners are trained to not handle cables at splices when the
cable is energized. Tr. 218. Cables are checked weekly, and miner operators examine them
before operating the equipment. Tr. 126-27, 219-20. He also noted that the continuous miner

31 FMSHRC 1493

operates at 995 volts, which is classified as "low voltage," and that miners wear gloves, although
he conceded that the gloves were not insulated to provide protection from electrical shock.
Tr. 23.
A cable splice that has been allowed to deteriorate to the point that electrical conductors
are exposed would present a serious shock hazard. While classified as "low," the voltage was
more than ·adequate to-cause a serious or fatal injury. Neither the miners' work gloves, which
were not insulated, nor the shielding system, would assure that no injury occurred. However, the
condition cited was not hazardous at the time. According to Fazzolare, it could have become
hazardous "eventually," "if not caught." There is no evidence as to the length of time that would
have had to-elapse before the condition became hazardous. At the time of the inspection, the
splice was located some distance from the continuous miner, whete the cable would have been
handled less frequently. Tr. 221. Before the condition could result in an injury, it would have
had to undergo multiple pre-operational examinations and weekly inspections, and not been
identified as a problem in need of correction, and a miner would have had to ignore his training
and handled the energized cable at the splice.
Considering all of these factors, I find that the Secretary has not proven that the violation
was reasonably likely to have resulted in an injury producing event, and that the violation was not

.

s&s.·

·· ·

Negligence
Travis testified that the tape ofthe splice was roughed·up in spots, not ·~ery pretty;" and•
doubted "that anybody would have ever seen any problem with this." Tr. 219-20. Fazzolare ·
conceded:that the condition was "not very obvious," and was observable only on "close
inspection." Tr. 126. I find that Ohio County's negligence was low.
Citation No. 6692131
Citation No. 6692131 was issued by Fazzolare on December 7, 2006. It alleges a
violation of30 C.F.R. § 75.503, which requires that electric powered equipment that is taken into
or used inby the last open crosscut be maintained in permissible condition. The violation was
described in the "Condition and Practice" section of the Citation as follows:
The operator failed to maintain the Fletcher Double Boom Roof Bolter in a
permissible condition. When checked, the right front light had a loose packing
gland where the cable enters the light fixture.

Ex.G-13.
Fazzolare determined that it was unlikely that the violation would result in a lost work
days or restricted duty injury, that the violation was not S&S, that one person was affected, and

31FMSHRC1494

that the operator's negligence was moderate. A civil penalty in the amount of$60.00 was
·
proposed for this violation.
The Violation
Maintaining permissibility of electric-powered equipment inby the last open crosscut is
critical to assuring that-sparks or arcing from electrical components cannot cause an ignition or
explosion of methane liberated by the mining process. The permissibility of housings of
electrical components is typically determined by measuring to assure that openings are no greater
than 0.004 of an inch. Inspectors probe openings in joints with a 0.005-inch feeler gauge and
determine that permissibility is intact if the feeler gauge cannot be inserted. Tr. 141.
The wires that supply electricity to the lights on the roof bolter are encased in rigid
conduit that is connected to an elbow joint that is, in tum, connected to the lamp housing. The
connection to the housing is sealed by a packing gland in which a rubber grommet is
encapsulated. Screwing down the top of packing gland compresses the grommet, forcing it to
expand, sealing any openings. Tr. 139, 279. When properly compressed, the flexibility of the
rubber grommet allows some movement of the lamp housing. Tr. 280. Previous fittings were
similar in design, except that :fiberglass rope was used instead of rubber. More force was needed .
to compress the rope. Consequently, the cap was screwed tighter; and the connection was rigid.
Tr.280-8L
The permissibility of the packing gland joint cannot be measured with a feeler gauge, :and·
no· other objective test for determining the permissibility of such fittings in the field wa&
. ,.
· · identified. Tt~ 141, 287. Fazzolare did notattemptto measure the:suspected opening. Tr. 145. .
He assesses permissibility by trying to. move the lamp. Ifhe can "tock it by hand," in his . ·
· ··
opinion, it is too loose, and he deems the joint non-permissible. Tr. 140. Wood testified that the
newer rubber grommet packing glands allow movement of the lamp housing when the grommet
is properly compressed, and that an over-tightened packing gland may result in a violation.
Tr. 280-81.
Fazzolare testified that, in his experience, ifthe fitting was ''that loose," there would be at
least a 0.005-inch gap. Tr. 146. However, he did not explain the basis of that conclusion, and it
is unlikely that it was the product of accurate measurements. More significantly, he admitted that
he had no way of knowing whether the joint was actually sealed. Tr. 147. I find that the
Secretary has failed to prove by a preponderance of the evidence that the packing gland joint had
not been maintained in permissible condition. The Citation will be vacated.

31FMSHRC1495

·'

Citation No. 6692601
Citation No. 6692601 was issued by MSHA inspector Charles Jones on April 10, 2007.
It alleges a violation of 30 C.F.R. § 75.l 107-16(b), which requires that fire suppression devices

be maintained in accordance with requirements specified in the appropriate National Fire Code.
The violation was described in the "Condition and Practice" section of the Citation as follows:
The take-up motor, electrical components and oil tank at the #5 belt drive were
not provided with adequate fire suppression. The fire suppression water spray
nozzle and piping had fallen down and were lying beside the motor on the mine
floor.
Ex. G-1.

Jones determined that it was reasonably likely that the violation would result in a lost
work days or restricted duty injury, that the violation was S&S, that one person was affected, and
that the operator's negligc;nce was moderate. A civil penalty in the amount of $217.00 was
proposed for this violation.
:rhe Violation ·. -~The motor, electrical components, and hydraulic oil tank for the #S belt drive takeup unit
were located in a crosscut adjacent to the belt entry, out of the main ventilation air cUlTent that
flowed outby in the entry. The water spray nozzl~ was part of the belt drive fire suppression ,..
·system, and was -supposed to be suspended over .the equipment in the crosscut. . Heat .generated
· by a fire would melt a plastic plug, allowing· water to flow through the spray nozzle; The hazard .
contributed to by the violation was that a fire starting in the area of the motor would not be
suppressed timely, would generate increased smoke and other products of combustion, and could
spread to the main belt drive. The belt drive and the takeup unit, including 50 feet of the belt,
were protected by a deluge water system, the components of which were in good working order.
Ohio County admits that the fire suppression nozzle had fallen to the mine floor and was
not properly maintained at the time of the inspection. It argues that the violation was not S&S
and that its negligence was less than moderate, and requests a corresponding reduction in the
assessed penalty.
S&S
The Secretary contends that the violation was S&S because the "condition was likely to
result in smoke inhalation or burn injuries as a result of a mine fire at [that] location." Sec'y.
Br. at 12. Jones' S&S determination was based on a number of considerations, including that the
nozzle would be ineffective in suppressing a fire, that notice of the fire would be delayed because
of the location of the equipment, and that firefighting efforts would be delayed because of
31 FMSHRC 1496

difficulty ascertaining the location of the takeup motor from the secondary escapeway. Ohio
County disputes those contentions, and argues that it·
highly unlikely that a fire would occur
at the takeup motor and, if a fire did occur, it was highly unlikely that a miner would be injured.

was

As to the possibility of a fire occurring at the takeup motor, Jones identified potential

ignition sources as a possible arc from the electrical equipment and friction generated by the
takeup unit. 3 However,he did not identify any defects in the electrical equipment. Nor did he
identify any defects in the takeup unit resulting in the generation of excessive heat due to friction.
Concerns about friction at the takeup unit, which was located in the belt entry and was protected
by the deluge system, bear little relevance to the seriousness of the condition at the equipment in
question. He noted the close proximity of hydraulic fluid, but did not cite any leaks in the
system, and conceded that the hydraulic fluid was an emulsion consisting of 40% water, which
''would burn," but was "fire resistant." Tr. 38, 43. Travis explained that MSHA's mine safety
and data sheet does not list a flash pointfor the fluid because it is 40% water. Tr. 156.
The history of fires at the Freedom mine tends to indicate that the likelihood of a fire
occurring in the area of the _takeup motor was remote~ Jones was not aware of any fire occurring
at the Freedom mine, and Travis was unaware of any belt fires at the Freedom mine. Tr. 50, 164.
However, Wood, confirmed that a belt fire had occurred, apparently many years before, andwas
extinguished quickly enough that it was not reportable to MSHA. 4 Tr. 289.
The fallen.hozzle did not provide effective fire suppression. Lying on the mine floor, the
plastic plug would not be exposed· to significant heat from. a· fire until it had reached large
proportions, and the spray would nolcover the iniended·area. .However, in the absence of
anything more than a theoretical ignition source, :I find that the gccurrence: of a fire at the takeup
motor was unlikely. Moreover~ other factors reliecl on by Jones to support his conclusion were
not substantiated. The mine's fire suppression system would have provided effective and timely
warning of a fire at the takeup motor, and the unmarked man doors would not have caused any

3

The Secretary cites several additional potential ignition sources. Sec'y. Br. at 12.
However, those sources were considerably removed from the equipment in question. Jn order for
the fallen nozzle to have had any impact on a fire originating some distance from the equipment,
it would have had to spread over a considerable area. and would have activated the nearby deluge
system. The fallen nozzle would have had a negligible impact, if any, on the hazards presented
by such a fire.
4

Unplanned fires in underground mines that are not extinguished within 10 minutes of
being discovered must be reported to MSHA. 30 C.F.R. §§ 50.2(h)(6), 50.10, 50.20. The
regulation was amended in 2006 to shorten the time period from 30 to 10 minutes.
31FMSHRC1497

significant delay in responding to a fire. 5 . Consequently, .I find that even if a fire had occurred at
the takeup motor, it is unlikely that a seiious injury would have resulted.
I find that the Secretary has failed to carry her burden of proving that the violation was
reasonably likely to result in a reasonably serious injury. Consequently, the violation was not
S&S.
Negligence
Jones evaluated Ohio County's negligence as moderate. He believed that the condition
had existed for "a while," because there was rock dust and float coal dust on the nozzle, and that
it should have been discovered and corrected in conjunction with belt examinations required to
be conducted on the two shifts each day that production occurred at the Freedom mine. Tr. 2831. Ohio County contends that the condition was not readily observable, and that there is no
evidence that the condition had existed for any length of time, much less that it had existed long
enough to have been discovered during an examination that had occurred at least two shifts
earlier. It challenges Jonc;,s' testimony on the presence of rock dust and float coal dust on the
nozzle, pointing out that it was contradicted by Travis, and that there is nothing in Jones' field
notes regarding the presence of dust at that location. Tr. 189-92
The nozzle was lying on the mine floor near the takeup motor. Belt examiners traveled
on the opposite side of the belt. While it may'have been more difficult to see from that vantage
point, it-should have been seen in the course of an examination. ldo not understand Ohio
County to be contending that it is not part of a belt. examiner's duties to confirm the presence ·of
essential· fire suppression equipment. Travis agreed· that a fallen·fire,suppression hose should
have been'noted bya preshift examiner. ·.Tr; 177. As to the- presence of dust, I credit Jones'
testimony~ and find that there was some rock dust and float coal dust on the fallen nozzle, and
that it had been in that condition long enough that it should have been discovered. I find that
Ohio County's negligence with respect to this violation was properly assessed as moderate.

5

Freedom's carbon monoxide monitoring and fire suppression systems were in working
order. The CO monitors are set to alarm at five parts per million, a very low threshold level, and
a monitor was located nearby, downstream in the 245 foot-per-minute air flow. While there
would have been less air flow in the crosscut where the equipment was located, some significant
air flow would be required to supply oxygen to a fire, and the products of combustion would
have been forced or drawn out into the belt entry's air flow, triggering the alarm. Freedom's
miners and managers were properly trained to fight fires. A fire fighter approaching from inby
would travel the belt entry, in its outby air flow of fresh air. Approach from outby would be
through the intake entry, inby the fire, and into the belt entry through a man door. While the man
doors to the belt entry were not marked, Travis explained that the location of the takeup unit was
well known and readily identifiable, because the entries turned 45 degrees at that point, the only
such tum in the mine. Tr. 160.
31 FMSHRC 1498

The Appropriate Civil Penalties
Ohio County is a very large operator, with a very large controlling entity. The assessment
data reflects that, prior to an apparent change in organizational structure in 2007, it averaged 1.5l.6 violations per inspection day during the relevant period, a relatively high incidence of
violations. Ohio County does not contend that payment of the proposed penalty will affect its
ability to continue in business. The violations were promptly abated.
Citation No. 6692124 is affirmed. However, the gravity of the violation was found to be
less serious than alleged, including that it was not S&S. A specially assessed civil penalty of
$4,100.00 was proposed by the Secretary. The lowering of the level of gravity justifies a
reduction in the proposed penalty. I impose a penalty in the amount of$2,500.00, upon
consideration of the above and the factors enumerated in section.1 lO(i) of the Act. .
Citation No. 6692129 is affirmed. However, Ohio County's negligence was found to be
low, rather than moderate. A civil penalty of $838.00 was proposed by the Secretary. The .
lowering of the level of negligence justifies a reduction in the proposed penalty. Informed by the
Secretary's then applicable penalty assessment regulations, I impose a penalty in the amount of
$375.00, upon consideration of the above.and the factors enumerated in section l lO(i) of the Act.
Citation No. 6692130 is affirmed. However,.the violation was not S&S and Ohio
County's negligence was found to be low,'rather than· moderate. A civil penalty of $838.00 was
· proposed by the Secretary. The lowering of the gravity of the violation and the operator's level
. ·of negligence justify a reduction in the proposed penalty. I.impose a penalty in the amount of
$300.00, upon consideration of the above andthefactorsenumerated..in section l lO(i) of the Act.
·. \.

....

;.,

.

Citation No. 6692601 is affirmed. However, the gravity of the violation was found to be
less serious than alleged, including that it was not S&S. A civilpenalty of $217 .00 was
proposed by the Secretary. The lowering of the level of gravity justifies a reduction in the
proposed penalty.· I impose a penalty in the amount of $175.00, upon consideration of the above
and the factors eniimerated in section llO(i) of the Act.
The Settlement
The Secretary agreed to vacate Citation Nos. 6692627 and 6692628 in Docket No. KENT
2007-344. Ohio County agreed to withdraw its contest and pay the assessed penalties as to
Citation No. 6689987 in Docket No. KENT 2007-319, Citation No. 6692605 in Docket No.
KENT 2007-344, and Citation Nos. 6692620 and 6692622 in Docket No. KENT 2007-345.
I have considered the representations and evidence submitted and conclude that the proffered
settlement is appropriate under the criteria set forth in section 11 O(i) of the Act.

WHEREFORE, the motion for approval of settlement is GRANTED, and it is
ORDERED that, as to Citation Nos. 6692627 and 6692628 the petition in Docket No. KENT
31FMSHRC1499

2007-344 is hereby DISMISSED, and that Respondent pay a penalty of $1,357 .00 for the
citations that are the subject of the settlement agreement.
ORDER
Citation No. 6692131 is VACATED. Citation Nos. 6692124, 6692129, 6692130 and
6692601 are AFFIRMED, as modified, and Respondent is ORDERED to pay civil penalties in
the total amount of $3,350.00 for the contested violations.
Respondent shall pay civil penalties in the total amount of $4, 707 .00 for the settled and
contested violations within 30 days.

"nski

.~.nuu;Sffative Law lud~
'·

~ '

..

·. Distribution (Certified Mail):
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219
Melissa M. Robinson, Esq., Julia K. Shreve, Esq., William B. King, II, Esq., Jackson Kelly,
PLLC, P.O. Box 553, Charleston, WV 25322

31 FMSHRC 1500

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
72119th STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5267/FAX 303-844-5268

December 31, 2009
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY ANDHEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. SE 2008-667
A.C. No. 01-03217-146922

v.
SHELBY MINING COMPANY, LLC,
Respondent

Mine: Coke Mine No. 1

DECISION
Appearances:

Tom Grooms, Office of the Solicitor, U.S. Department of Labor, :
Nashville Tennessee, for Petitioner; ·
Warren B. Lightfoot, Maynard, Cooper and Gale; PC Birmingham,
Alabama, for Respondent.

Before:

, Judge Miller ,

This case is before me on .a petition for assessment of civil penalty filed by the Secretary
of Labor ("Secretary"), acting through the Mine Safety and Health Administration ("MSHA"),
against Shelby Mining Company, LLC, pursuant to sections 105 and 1 IO of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 {the ''Mine Act" or the "Act"). This
case involves one citation and one order issued by MSHA under section 104(d) of the Mine Act
at the Coke Mine No. 1 operated by Shelby Mining Company, LLC. The parties presented
testimony and documentary evidence at a hearing held in Birmingham, Alabama.
At all pertinent times, Shelby Mining Company, LLC, operated the Coke Mine No. 1
mine in central Alabama. The Coke Mine No. 1 mine, although now closed, mined coal and/or
coal byproducts which affected commerce. The mine is subject to the Mine Act.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Shelby Mining Company, LLC ("Shelby") operated an underground coal mine, the Coke
Mine No. I ("Coke Mine"), near Montevallo, Alabama. Like most mines in the area, it is
·"gassy," liberating over seven million cubic feet of methane per day. As a result, it is subject to
5-day spot inspections by MSHA, pursuant to section 103(i) of the Act. 30 U.S.C. § 813(i); (Tr.
31FMSHRC1501

21-22). On November 27, 2007, Randall Weekly, an MSHAinspector, conducted a spot
inspection at the Coke Mine. He was accompanied oti that inspection by Randy Clements,
Shelby's safety supervisor at the mine. The inspection took place on the regular day shift,
during which mining normally occurs. (Tr. 95-96). Weekly cited two violations that are
subject to this decision: (1) a citation for failure to follow the ventilation plan, and (2) an order
for failure to conduct an adequate preshift examination.

a.

Citation No. 7692075

As a result of the inspection, Inspector Weekly issued Citation No. 7692075 alleging a
violation of 30 C.F.R § 75.370(a)(l), which requires that mine operators "develop andfollow,a ·
ventilation plan approved by the [MSHA] district manager." The citation described the violation
as follows:
·
At the Coke mine on the #1 section in the #5 entry the ventilation plan was not
being followed. The entry had been mined a full cut of 30 feet, the blowing
curtain was 12 feet from the last row ofbolts or 42 feet from the face,[ sic] There
is no evidence of an exhaust curtain or back drop ever being in place while this
area was mined. The air was µ"aveling through the cross cut,between #4 and #5
then straight to the return never. goiµg to the faee. · This mine has had 6 ignitions··
from 3/30/2006 until 'll/~/2007' one resulting in 2 employe~s receiving bums.
The nilne operator Jia8 engaged in aggravated. conduct by failure to follow the
ventilation plan. This violation is aii unwarrantable failure to comply with a
·
·
mandatory stand~d; ·
Gov.Ex.2.
The citation was later modified to clarify that it was issued for a violation of item 7 on page 2 of
Shelby's ventilation plan. Id.
Weekly determined th.at it was "reasonably likely" th.at the violation would result in "lost
workdays or restricted duty," th.at the violation was significant and substantial, that three
employees were affected, and that the operator's negligence was high. A civil penalty in the
amount of$2,473.00 has been proposed for this violation.

1.

The Violation ·

Weekly is an MSHA mine inspector who has held th.at position since 2005. (Tr. 19).
Prior to joining MSHA he worked in the mines in Alabama for twenty-five years. He held a
number of positions in the mining industry where he accrued a working knowledge of ventilation
systems and ventilation controls. (Tr. 20-21).
Weekly arrived at the Shelby Coke Mine during the day shift on November 27, 2007. At
7:00 a.m. he left the surface to travel underground with Mr. Clements and the two arrived at the
31 FMSHRC 1502

#5 entry at approximately 9:00 a.m. (Tr. 32, 57). While production was the norm on the day
shift, there was no activity at the #5 eriny when Weekly andClements arrived. {Tr. 22-24).
Immediately upon arriving at the #5 entry, Weekly observed that a full cut of 30 feet had
been made in that entry, but it had not yet been roof bolted. He observed that the line curtain
outby the #5 entry had been pulled back 12 feet from the last row of bolts. He further observed
that there was no exha~t curtain across the entry and air was short-circuiting directly to the
return instead of traveling into the entry or face area. (Tr. 30). Clements confirmed Weekly's
observations. (Tr. 112).
The ventilation plan and the citation issued by Inspector Weekly refer to two curtains in
the'ar~fofthe #5 entry that act as vei'J.tilation controls: (l) a ''blowing curtain," also known: asa

"line curtain," and (2) an "exhaust curtain."
The Coke Mine's ventilation plan requires that a "line curtain" be maintained ''no greater·
than 30 feet from the point of deepest penetration in all unbolted idle working places." Gov. Ex.
3at51 ?(emphasis added). {Tr. 26-28). According to Weekly, the line curtain was 12 feet
from the last row of roof bolts and 42 feet from the face {i.e., more than 30 feet). Gov. Ex. 2.

I credit Weekly's testimony and find·that the line c~ain was more than 30 feet from the
.. point of deepest penetration and, fl1erefore, :w~ in yicilatio11 of the ventilation plan.. weekly. explained that the p{)sition of.tp.e _curtam prevented air from· reacbing the #5 entry, and instead of ·
reachiilg the face, caused the a.fr to short drcuit into the return. (Tr. 24). Clements agreed that
the curtain was inby the rib in the crosscut and was 42 feet from the face. (Tr. 111-112).
Clements was unable· to explain exactly why the line curtain had been pulled back or how long it
had been in that position.
·
··
The mine's ventilation plan also requires that an "exhaust curtain" be maintained ''within
30 feet of the face" while mining is occurring. Gov. Ex. 3 at 5 13; (Tr. 26-28). According to ·
Weekly, and confirmed by Clements, there was no exhaust curtain present when the inspection
was conducted. (Tr. 114). Weekly determined that the area had recently been mined, most
likely on the last production shift the evening prior to the inspection. Weekly testified that he
looked carefully for any sign that a curtain had been hung in the area, specifically to determine if
the curtain had been in place when the 30-foot cut had been made. He examined the roof and the
bolts, and looked for evidence of nails or marks that would have indicated the previous presence
of an exhaust curtain. (Tr. 69). He did not see the "pogo sticks" that are often used to hold the
curtain in place, and he saw no material that could have been used as a curtain. {Tr. 68). Based
on his observations, Weekly determined that an exhaust curtain had never been in place as
required by the plan. (Tr. 38, 68-69).
Clements, referencing the company production report, testified that on November 26,
2007, coal was cut for 28 feet in the #5 entry. Resp. Ex. 9 at 3; {Tr. 121-122). However, the
following morning, when the two arrived on the section, there was no activity. Shelby argues,
therefore, that an exhaust curtain is·only required when miners are working at the face, and, at
the time of the inspection, coal was not being mined in the area; hence no one was working at the
face and no violation of the ventilation plan existed.
31 FMSHRC 1503

While no one was working at the face, there is credible testimony that there was work
conducted in the area without the proper \reritilation. Weekly' s testimony that he made a careful
search for any sign of the previous existence of an exhaust curtain in the area, and none could be
found, demonstrates that no curtain was ever in the area, even while the work was being done on
the prior shift. When it came time to abate the violation and hang the curtain, Clements was
unable to locate one in the area of the #5 entry and had to travel to another area in the mine to
retrieve a curtain and return it to the #5 entry to be hung as required by the plan. (Tr. 77). While
coal was not being mined at the time of the inspection, there was no sign that an exhaust curtain
had ever been in place. Because an exhaust curtain was never in place, and a cut had been made
which would have necessitated miners working at the face, Shelby was in violation of its
ventilation plan for the second time. See Gov. Ex. 3 at 5 iI 3.
After the citation for the plan violation was issued, Clements conducted an internal
investigation to determine why the ventilation plan was not being followed in the #5 entry. (Tr.
129). He spoke to Jerry Wells, the foreman on the production shift on the evening prior to the
inspection. Wells told Clements that he had observed a curtain in place; however, he could not
confirm which curtain (i.e., line or exhaust) he saw during the production. (Tr. 119-120). Wells
could not explain who removed the curtain after he left the area, why the curtain was removed,
or when it was removed. He also could not address why or when the line curtain had been pulled
back twelve feet in violation of the ventilation plan. Clements confirmed that he could learn
noihing'further about the position of either curtain but he recalls that someone told him thatthey
took down th'e exhaust curtain to. "scoop Up some nnick.~' (Tr. 123)~; There was no explanation : .
about why the curtain had not simply been pulied aside or why it had not been returned when the.
·clean up was complete.
Shelby argues that the curtain had to be in place to make the cut in order for the
continuous miner to operate. Clements reasoned that a cut could not be made without the
ventilation controls in place because, without the air moving to the face, methane levels would
rise and automatically shut down the continuous miner. He believes that the safety device on the
machine would have prevented mining if proper ventilation were not in place. Wells agreed
with Clements and confirmed that so much gas is emitted while the coal is being mined that it
could not be done without ventilation in place. (Tr. 15). Therefore, Clements opined, the
exhaust curtain had been in place during mining but was removed to clean the area, and
therefore, was not a violation. Wells on the other hand explained that cleanup is done only after
the roof is bolted because it is not safe to clean in an unbolted area, such as was the case in the
#5 entry. (Tr. 155). Given the discrepancy in the testimony of Shelby's witnesses, I do not
credit the theory advanced by Clements, that the curtain had been removed to clean.
In an enforcement proceeding under the Act, the Secretary has the burden of proving all
elements of an alleged violation by a preponderance of the evidence. Jn re: Contests of
Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), ajfd sub
nom. Sec'y ofLabor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998); ASARCO
Mining Co., 15 FMSHRC 1303, 1307 (July 1993); Garden Creek Pocahontas Co., 11 FMSHRC
2148, 2152 (Nov. 1989). The Secretary has met her burden of proving that the mine was not
following its ventilation plan in two specific areas on the day of the inspection.

31 FMSHRC 1504

2.

Significant and Substantial Violation

A significant and substantial ("S&S") violation is described in section 104(d)(l) of the
Act as a violation "of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation is
properly designated S&,S "if, based upon the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature." Cement Div., Nat'! Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:
[In] order to establish that a violation of a mandatory safety standard is significant
and substantial under National Gypsum, the Secretary of Labor must prove: (I)
the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard-- that is, a measure of danger to safety--contributed to by the violation; (3)
a reasonable likelihood that the hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in question will be of a reasonably
serious nature.

Mathies Coal Co>, 6 FMSHRC 1, 3.,.4 (Jan; 1984)(footnot~.omitted); see'also,'.Buck Creek.Coal~
Jnc.,v: MSHA, 52 F.3d 133, 135 (7th Cir. 1999); .14u$tinPower, Inc. v. Sei:retary, 861F2d99,
103·04 (5th Cir:'.1988), ajfg Austin Power, Jizc.,,·9 ;FMSHRC 20i5, 2021(Dec.1987) (approving
Mathies criteria).
··
As noted above, I find that there is a violation of the mandatory safety standard: as alleged
· by· the Secretary: Further, I find that the violation contributes to the danger of an explosion or
ignition of methane at the #5 entry. In analyzing the hazard presented by methane, the critical
question is whether there was any likelihood of explosive concentrations of methane coming into
contact with an ignition source. See Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988).
Although Weekly was unable to go to the face of the #5 entry to take a methane level reading
because the roof of the entry had not yet been supported, the condition clearly pointed to a
buildup of methane in the working area. The ventilation had been short circuited in two regards,
both with the pulled back curtain and the absence of the exhaust curtain, resulting in no air
movement at the face. It would take little time for methane to build up to a dangerous level in
that entry. The mine's history of ignitions, coupled with a build up of methane, clearly creates a
hazard.
The third element of the Mathies criteria often presents difficulties in determining
whether a violation is S&S. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug.
1985), the Commission provided additional guidance:
We have explained further that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." U.S. Steel Mining Co., Inc., 6
FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
31 FMSHRC 1505

with the language of section 104(d)( 1), it is the contribution of a violation to the
cause and effect of a hazard thaf must be signiffoartt and substantial. U.S. Steel
Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
This evaluation is made in consideration of the length of time that the violative condition existed
prior to the citation anjl the time it would have existed if normal mining operations had
continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc.,
6 FMSHRC at 1574. The question of whether a particular violation is significant and substantial
must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC
498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
The length of time that the violative condition existed prior to the citation was
significant. Weekly testified that, after a diligent search, he saw no evidence that an exhaust
ventilation curtain had ever been in place at the #5 entry and therefore the condition had existed
on the prior evening Shift, through the night shift and into the day until Weekly arrived. Wells,
on the other hand, testified that he observed a curtain in place about twelve hours prior to the
violation. I have credited-the testimony of Weekly that no exhaust curtain had ever been put in
place, and that the violation existed the evening before the inspection, giving ample time for
methane to build in the area.
·

Weekly· testified that he believed an injury,was reasonably likely to occur: He based this
conclusion on his determination that.the #5 entry was an unventilated area where gas was being
allowed to build up. Given his experience, and the direction of the air flow, he had no doubt that ·
the face had no air movement and hence, methane was building In that area~ {Tr. 40). T.he fact
·· that this is a gassy mine with a history of ignitions, along.with the fact that roof bolting would ·
next occur in the area, made it reasonably likely that ·an ignition or explosion would occur in the
unventilated area resulting in an injury. In the normal mining sequence~ the roof bolter would
have been brought in to begin bolting the area so that mining could continue. Weekly explained
that he is aware of a number of methane ignitions caused by roof bolters. (Tr. 41 ). When the
bolter drills the hole in advance of placing the roof bolt, the hot bit can hit the methane that has
not been carried away or hit a bleeder and ignite. This mine has many methane bleeders, and
without ventilation in place the roof bolter would, not only ignite the methane that had
accumulated without ventilation, but would be more likely to ignite the stream of gas from the
bleeder, resulting in an explosion or at the very least a bum injury to those working in the area.
A previous ignition at the mine which caused burn injuries to two miners substantiates the
Secretary's argument that the injuries could be sustained and those injuries would be serious.
Weekly indicated that three people were affected by the lack of ventilation. Gov. Ex. 2.
He determined that two roof bolters and one service person who would be working the scoop
would have been exposed to the condition he cited. Shelby agrees that roof bolters would have
entered the area next to secure the roof, while the service man would operate the scoop to clean
up.
Shelby disputes the S&S designation and presented evidence that the continuous miner
would automatically stop cutting and shut down if dangerous methane levels were present.
31 FMSHRC 1506

Therefore, Shelby argues, it is impossible to operate without air flow to the face. The argument
was not extended to the roof bolting mac:hnies, however; that were scheduled to enter the area
next in the normal course of mining.
Shelby also argues that the previous ignitions in the mine occurred during the production
shift and had nothing to do with ventilation curtains and therefore ignition is unlikely in this idle
area. Clements testified that, normally, the continuous miner would hit an area with methane,
causing the various ignitions that had been reported to occur. One of the ignitions was
investigated by Weekly and he agreed that it was during a production shift and that the
ventilation plan was being followed at the time of the ignition. (Tr. 46-48). However, without
the ventilation in place, as it had been for the previous ignitions, it is even more likely that a
hazard exists, as there is nothing to move the methane away from the source ofignition.
Shelby's failure to comply with its approved ventilation plan resulted in extremely .
haZardous conditions in locations where persons were scheduled to travel and work. Weekly
said that the mine was "setting itself up to have another ignition." (Tr. 44). Any injury that
might result from an ignition of methane or exposure to oxygen-deficient air would be serious,
and potentially fatal. Therefore, I find it was reasonably likely that the hazard would result in an
injury and that injury would be serious.

. :3.'

Unwarrantable Failure

··, .. ·

.

The tenn ''unwarrantable failure" is defined as aggravated conduct constituting more than
ordinary negligence. Emery Mining .Corp., 9 FMSHRC 1997, 2004:(Dec. 1987). Unwarrantable
failure is characterized by such conduct as ·~eckless:disregard," "iritentional misconduct;"
"indifference,'' or the "serious lack of reasonable care;" Id. at2003-04; Rochester &Pittsburgh
Coal Co:, 13 FMSHRC 189, 193-194 (Feb. 1991). Aggravating factors include the length of
time that the violation has existed, the extent of the violative condition, whether the operator has
been placed on notice that greater efforts were necessary for compliance, the operator's efforts in
abating the violative condition, whether the violation was obvious or posed a high degree of
danger and the operator's knowledge of the existence of the violation. See Consolidation Coal
Co., 22 FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb.
1994); Windsor Coal Co., 21FMSHRC997, 1000 (Sept. 1999); Consolidation Coal Co., 23
FMSHRC 588, 593 (June 2001 ). All of the relevant facts and circumstances of each case must
be examined to determine if an actor's conduct is aggravated, or whether mitigating
circumstances exist. Consolidation Coal Co., 22 FMSHRC at 353.

In October 2006, the mine began to experience a number of ignitions at the face. Steps
were taken by MSHA and Shelby to modify the ventilation plan as needed to prevent such
ignitions. See Gov. Ex. 16. MSHA personnel were present at the mine for many days, and, with
each new ignition, worked with Shelby to modify the ventilation system as needed. The
ignitions were dangerous and, most importantly, occurred while ventilation was in place. With
the history of ignitions, the presence of MSHA, the investigations and the ventilation changes, it
is safe to say that everyone at the mine was aware of the methane problems. The ignitions were
ongoing with at least four occurring between October and the time of the citation near the end of
31 FMSHRC 1507

,.

•,

November. Proper ventilation should have been a high,,i1riority for everyone at the mine, yet it
appears that it was not. Government exhibits six through sixteen describe. the ignitions that were
occurring regularly, and explain that in at least one case miners were seriously injured during an
ignition. Gov. Exs. 6-16.
The Secretary established that Shelby was on notice that it needed to do more to ensure
that the faces were adequately ventilated at all times. However, the problem with ignitions
persisted. Based on the evidence presented at the hearing, I conclude that the ventilation was
restored to the cited #5 entry only after Weekly pointed out that there was no air movement.
Had he not arrived at the entry at that time, the ventilation would not have been immediately
restored. As the ·inspector explained "[t ]hey knew their past history of the gas in [the] mine[]
and·that'theyneeded to keep their ventilation up, ,and to just have no ventilation anywhere-in°the ..
area and no evidence that_ ventilation had ever been there[,] to me[,] was aggravate~ conduct."
(Tr. 67). The violation was exceedingly obvious and Shelby demonstrated aggravated conduct
constituting more than ordinary negligence.
Shelby argues.that the violation was not unwarrantable because the curtain had been in
place during the mining cycle the day before and it had been taken down to clean up around the
area. I have addressed the differences of opinion regarding whether the curtain was in place or
why or when it was removed. The operator's argument as to why the curtain was removed is ..
difficult to understand. The cleaning up of muck generally occurs after the roof is bolted and · . , .
··supported· so as to be safe. ·Further, even·ifmucking were oc.eurring, the curtains would only be.; ·
moved aside so that the air would continue to be moved to the face. (Tr. 75). After the mucking
occurs, the ·curtain must be returned to its original location. There is no evidence that any.effort
was niade. to restore the ventilation, and it seems likely that none wbuld have been made had ' . ,
Weekly nof amved on the scene.
· · ·· ··
Shelby also argues that the previous methane ignitions occurred while coal was being
mined, and consequently no higher degree of negligence can be imputed for ignoring ventilation
in idle areas. Shelby further contends that the history of ignitions is not important for
determination of gravity and negligence because the earlier ignitions occurred irt working areas,
as opposed to idle areas, as is the issue in this case. Given that the Coke Mine is a gassy mine
subject to ignitions, Shelby has a duty to see that the ventilation plan is strictly adhered to ..
While ignitions during the mining process certainly require Shelby to be extra vigilant during the
operation of the continuous miner, they also put Shelby on notice that there are unknown
bleeders in the mine which have the known potential for ignitions. Additionally, the fact that
ignitions occurred in spite of the presence of the automatic shutoff safety feature on the
continuous miner is further evidence that Shelby was aware of the high potential for ignitions
and the necessity of taking extra precautions to prevent such from happening.
I find that the mine was more than careless, and exhibited more than ordinary negligence

in having two key ventilation controls moved or missing in an area where methane can build and
work will shortly occur. The mine was clearly on notice that ignitions are a problem, that the
mine was gassy, and that leaving the entry without any ventilation at the face is a fonnula for
disaster.
31 FMSHRC 1508

b.

Order No. 7692076

fuspector Weekly issued Order No. 7692076 on November 27, 2007 for an unwarrantable
violation of30 C.F.R. § 75.360(b)(3). The order describes the violation as follows:

An inadequate pre-shift examination was performed on the # 1 section at the Coke
mine on 11/27/0.J on the owl shift. The pre-shift examiner did not correct the
ventilation in the #5 face, the blowing curtain was 12 feet from the last row of
bolts, 42 feet from the face and there was no back drop or exhaust curtain in place
allowing the air to short circuit directlyto the return and not ventilate the #5 face.
This mine has had 6 ignitions from 3/3/0/2006 until 11/2/2007, one resulting in 2
employees receiving burns. If this condition is allowed to exist methane will
build in this entry and would cause a ignition or explosion.
Gov.Ex.4
Weekly determined that it was ''reasonably likely" that the violation would result in an
injury involving "lost work-days or restricted duty," that the violation was S&S, that three
employees were affected, and that the operator's negligence was high. The Order was issued
.··pursuant to section 104(d)(l) oftJ:ie Act, and alleges that the violation was the result of Shelby's.
unwarrantable failure to comply with the standard. A civil penalty in the amount of$5,21 l.OO ..
· has heen proposed for this violation;
·
.~ . .,
·The fact that the conditions, as cited by Weekly and discussed above, existed at the time
of the inspection is not disputed. .Clements; who traveled with Weekly dUring the inspection, ·_
confirmed the existence of the conditions. He testified that there was not an exhaust ventilation .
curtain and that the blowing curtain was more than 30 feet back from the face. In addition to the ·
ventilation violation, Weekly also found a number of roof control violations which he included
in his determination that a preshift examination was not adequately conducted.

1.

The Violation

Order No. 7692076 alleges a violation of 30 C.F.R. § 75.360(b), which requires that
preshift examinations be conducted in areas where miners are scheduled to work or travel, and
that the certified person conducting the examination "examine for hazardous conditions, test for
methane and oxygen deficiency, and determine if the air is moving in its proper direction."
Joel Stevens, a certified preshift examiner, conducted the preshift examination for the
7:00 a.m. to 3:00 p.m. day shift on November 27, 2009. (Tr. 130-131, 139). The examination
began around 3:00 a.m. and was completed around 5:00 or 6:00 a.m. (Tr. 127). The
examination report did not list any hazardous conditions or violations. However, a few hours
later, Weekly, while conducting a spot inspection, found what he believed to be violations of
safety standards and issued the ventilation citation discussed herein, as well as roof control
citations. (Tr. 34-35). The preshift examiner's report does not mention any ventilation:
problems, nor does it mention the roof areas that were cited by the inspector. {Tr. 131 ).
31 FMSHRC 1509

The Secretary's position is that the miner charged with the duty of conducting the
preshift examination conducted an inadequate preshift examination because he did not report the
ventilation and roof control problems, nor did he correct the ventilation problems as required.
(Tr. 78, 81, 33-35). The roof control citations referred to unsupported roof in the #1, #4 and #5
entries. (Tr. 34). Respondent, on the other hand, contends that the preshift examination was
timely completed and accurately reflected that no hazardous conditions existed when the
examination was mad.e (i.e., that the conditions did not exist until after the preshift).
Specifically, the Respondent avers that the ventilation curtains were in place and, therefore, were
not required to be noted on the preshift examination report. The Respondent did not address
why the areas of the roof that were cited by Weekly were not included in the preshift
examination.
The critical question is whether the conditions existed at the time of the preshift
examination. The hazardous conditions most likely developed, as Weekly believed, during the
production shift, more than twelve hours before the preshift was conducted. (Tr. 72-75). ·
Weekly cited the condition as having been present for five hours, based on the time when the
preshift examination was to have occurred. I have already credited Inspector Weekly' s
testimony that the ventilation violations existed at the time the coal was cut from the #5 entry on
the second shift on November 26th. It follows that the ventilation controls were missing, and
violation apparent, when Stevens conducted his preshift examination in the early hours of
·November27th. ·
During his testimony Clements identified Joel Stevens, a foreman at the Coke Mine, as
the pteshift examiner. Clements testified that he did not follow up with Stevens to determine
whether or not the conditions, as cited by Weekly,·existed at the time Stevens conducted. the
preshift examination. (Tr. 131-132)~ Moreover; Clements did notprovide any justification for
the b1td roof area or raise any defense· that the roof violation occurred during the period after the
preshift examination but prior to the inspection.
Upon consideration of the above factors, I find that, at the time of the preshift
examination, hazardous roof and ventilation conditions existed. Further, I find that, the
conditions should have been discovered, corrected and reported during a proper preshift
examination and, hence, a violation is proven.
2.

Significant.and Substantial

A significant and substantial ("S&S") violation is described in section 104(d)(l) of the
Act as a violation "of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation is
properly designated S&S "if, based upon the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature." Cement Div., Nat 'I Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981 ).
I find that there was a violation of an underlying mandatory safety standard. The preshift
examiner not only failed to record the presence of hazardous conditions, but also, and more
31FMSHRC1510

importantly, failed to even identify those hazards. In doµig so, Shelby violated both section
75.360(a)(l), requiring the preshift examination, and section 75.360(b), requiring the examiner
to look for "hazardous conditions, test for methane and oxygen deficiency, and determine if the
air is moving in its proper direction." 30 C.F.R. §§ 75.360(a)(l), 75.360(b). Second, I find that
the failure to identify the conditions and note them on the preshift examination report would
have resulted in at least three miners entering and working in a dangerous area that was both
unbolted and unventilated.
With regard to the third element of the Mathies factors, the Commission has held that
judges should ordinarily not rely on presumptions. Manalapan Mining Co., 18 FMSHRC 1375,
(Aug. 1996). Shelby argues that the violation is not S&S because it is unlikely that there would
have been any activity in the area prior to the ventilation being restored. Hence, failure on the
part of the examiner to notice this violation cannot result in an injury. I must analyi;e whether
there was a reasonable likelihood that the hazards contributed to by the violation would result in
an injury in the event that the hazards that went unnoticed by the preshift examiner were not
corrected prior to normal mining operations. While Shelby argues otherwise, the fact that the
cited area was idle at the time of the citation has little bearing on the S&S finding; Weekly
confirmed that while the #5 entry was idle during his inspection, other areas were not. The men
had already entered the mine for the day shift when Weekly observed the violations of the roof
and the ventilation plans and, therefore, the miners were already placed in a dangerous situation;·
one intended to be corrected by the requirement of the preshift examination..
. The Commission has recognized that the preshiftexamination requirements are·"of ·
· fundamental :importance in assuring a safe working environment underground." Buck Creek ..
. Coal Co.~ 11:FMSHRC 8, 15 (Jan. 1995); see also 61 Fed. Reg. 9764, 9790 (Mar. ll, .1996) : . ·
·("The ·presbift examination is a critically. important and fundamental safety practice in the· ·.. , ··
industry.· It is a primary means of determining the effectiveness of the mine's ventilation system'
and of detecting developing hazards, such as methane accumulations, water accumulations, and
bad roof"). In Buck Creek, the Commission concluded that the third Mathies element had been
proven when miners were allowed to work in a preshifted area even though another area of the
mine that should have been examined was not. 17 FMSHRC 8 (Jan. 1995). There, the
Commission found that "hazards in an unexamined portion of the mine could affect" the area in
which miners were working. Id. at 14; Jim Walter Resources Inc. 28 FMSHRC 1068 (Dec 19,
2006). The failure of the preshift examiner to recognize the dangers presented by the unbolted
and unventilated area of the #5 entry could result in an ignition, explosion, or potentially a roof
fall in the areas cited. The occurrence of any of these events is reasonably likely to result in
injuries to the roof bolters or the service man that would be running the scoop. Finally, as I have
indicated above, the injuries associated with methane ignitions and explosions are serious in
nature.
Preshift examinations play a crucial role in ensuring that miners work in a safe
environment. I credit the testimony of Weeldy that conditions which presented an explosion
hazard were present in the area and were not noted by the examiner. The hazards created by lack
of ventilation and unsupported roof in several locations, and the failure of the preshift examiner
to warn miners, or correct the conditions, exposed miners to a reasonable likelihood of serious
injury.
31FMSHRC1511 ·

3.

Unwarrantable Failure

The term ''unwarrantable failure" is defined as aggravated conduct constituting more than
ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable
failure is characterized by such conduct as "reckless disregard," "intentional misconduct,"
"indifference," or the ~serious lack of reasonable care." Id. at 2003-04; Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189, 193-194 (Feb. 1991). Aggravating factors include the length of
time that the violation has existed, the extent of the violative condition, whether the operator has
been placed on notice that greater efforts were necessary for compliance, the operator's efforts in
abating the violative condition, whether the violation was obvious or posed a high degree of
·danger and the operator's knowledge of the existence of the violation. See Consolidation Coal'
Co., 22 FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC ~92, 195 (Feb.
1994); Windsor Coal Co., 21FMSHRC997, 1000 (Sept. 1999); Consolidation Coal Co., 23
FMSHRC 588, 593 (June 2001 ). All of the relevant facts and circumstances of each case must
be examined to determine if an actor's conduct is aggravated, or whether mitigating
circumstances exist. Consolidation Coal Co., 22 FMSHRC at 353.
The Secretary argues that the violation was the result of an unwarrantable failure because
the conditions were extensive, obvious and existed for more than one shift~ that they posed a
,
high degree of danger, and that the failure to note or record them on the preshi:ft report ·evidenced
.
·.an indifference to safety. The evidence justified a fmditig that the conditions, as Weekly found ·
them, had ·existed at. the time of the preshi:ft examination and hence, ·the Secretary's argument is
well founded~
.

Shelby offered little evidence to contta(iict the Secretary's allegation of ~warrantable
failu:re to comply with the requirement of a thorough and meaningful preshi:ft examination.
Clements testified that he looked into the ventilation violation, but offered little information
about the violation for the preshift examination beyond providing the name of the individual
who was responsible for conducting it. Clements did not investigate the allegations of an
inadequate preshift, as he alleged he had done regarding the ventilation citation, and offered no
explanation as to why the examiner failed to notice the violative conditions.
The history of the mine demonstrates an institutional lack of interest in demanding that
the preshift examinations be done adequately at this mine. See Gov. Ex. 1. In February 2007,
the mine received an unwarrantable failure order for failure to conduct an adequate preshift
examination. Two months later a citation was issued for failing to meet the requirements of the
preshift. During the nine months prior to this violation the mine was warned about the
inadequacy of its preshift examinations. Everyone at the mine, including the preshift examiner,
knew that the ventilation system presented a challenge because the mine bad at least six ignitions
from March 2006 until just a few weeks before Week.ly issued his citation. The actions of the
preshift examiner constitute high negligence. The examiner failed to do his job even in a cursory
fashion. It was obvious that the ventilation controls were not in place, one curtain was missing
and another was pulled back 12 feet. Yet, the preshift examiner did not mention the problem
and subsequently didn't correct the problem prior to the workers entering the mine.
31FMSHRC1512

I find that the evidence establishes that the failure to conduct an adequate preshi:ft
examination constituted more than ordinary negligence on the part of Shelby. Shelby's behavior
and lack of interest in the importance of the preshi:ft examination can be accurately characterized
as "intentional misconduct," which the Commission has concluded "is a form of unwarrantable
failure for purposes of the Mine Act." Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194
(Feb. 1991).

II. PENALTY
The principles governing the authority of Commission Administrative Law Judges to
, assess civil penalties de novo for violations of the Mine Act are well established.· Section. 11 O(i)
of the Mine Act delegates to the Commission and its judges "authority to assess all civil
penalties provided in [the] Act." 30 U.S.C. § 820(i). The Act delegates the duty of proposing
penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess
the penalty. 29 C.F .R. § 2700.28. The Act requires that, "in assessing civil monetary penalties,
the Commission [ALJ] shall consider" six statutory penalty criteria:
[1] the operator's history of previous violations, [2] the appropriateness of such
. penalty to the size of the business of the operator charged, .[3] whether the
··:operatorwasnegligent, [4]the effect ofthe operator's aQ.ilityto·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).

In keeping with this statutory requirement, the Commission has held that "findings of
fact on the statutory penalty criteria must be made" by its judges. Sellersburg Stone Co., 5
FMSHRC at 292. Once findings on the statutory criteria have been made, a judge's penalty
assessment for a particular violation is an exercise of discretion, which is bounded by proper
consideration of the statutory criteria and the deterrent purposes of the Act. Id. at 294; Cantera
Green, 22 FMSHRC 616, 620 (May 2000).
I accept the stipulation of the parties that the penalties proposed are appropriate to this
operator's size and ability to continue in business, and that the violations were abated in good
faith. The history is normal for this size operator, with the exception of the violations discussed
above. I find that the Secretary has established high negligence on the part of Shelby for both
violations. Further, I find that the Secretary has established the gravity as listed in each citation.
Both violations in this case are extremely serious, given this mine's history of ignitions
and the possibility for a major accident. Not only was the ventilation violation obvious to any
person who approached the #5 entry, it was not recorded by the person charged with ascertaining
that the mine was safe for miners who were, or would be, working in the area. The mine had at
least six ignitions prior to this incident and each had been investigated. It is fair to say that the
31FMSHRC1513

mine paid little attention to the safety of its miners in ignoring its history and the potential for
disaster.

III. ORDER
Based on the criteria in section 1 IO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess a
penalty of $5,000.00 f6r each violation. Shelby Mining Company, LLC is hereby
ORDERED to pay the Secretary of Labor the sum of $10,000.00 within 30 days of the date of
this decision. 1

~.
~~~~
~vel:~Ju~

Distribution:
Thomas Grooms, Office of the Solicitor, U.S. Department of Labor, 618 Church St.
Suite 230, Nashville, TN 37219 (Certified Mail)
Warren Lightfoot, Maynard, Cooper & Gale, PC, 2400 Regions/Harbert Plaza, 1901 Sixth
Avenue North, Birmingham, AL 35203. (via Certified Mail)
/ate

1

Payment should be sent to Mine Safety and Health Administration, U.S. Department of Labor, Payment Office,

P.O. Box 790390, St. Louis, MO 63179-0390.

31 FMSHRC 1514

ADMINISTRATIVE LAW JU:OGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY A VENUE N. W., SUITE 9500
WASHINGTON, D.C. 20001
(202) 434-9980

November 6, 2009
DISCRIMINATION PROCEEDING

BIIJ.,Y BRANNON,
Complainant

Docket No. KENT 2009-302-D
BARB CD 2008-07

v.
PANTIIER MINING, LLC,
Respondent

No. I Mine
Mine ID 15-18198

BILLY BRANNON,

DISCRIMINATION PROCEEDING
Complainant
Docket No. KENT 2009-1225-D
BARB CD 2009-07

v.
PANTHER.MINING, LLC and
MARKD. SHELTON,
Respon(ient ·
SECRETARY ·oF LABOR, .
on behalf of BILLY BRANNON,
Complainant,

No. l Mine.
: · ' . Mine: ID -.15-18 l 98 .
DISCRIMINATION
PROCEEDING
.

.

..

.

Docket No. KENT 2009-1259-D
BARB CD 2009-09

v.
PANTIIBR MINING, LLC,

Respondent

No. I Mine
Mine ID 15-18198

ORDER GRANTING IN PART AND DENYING IN PART
. RESPONDENT'S MOTION TO COMPEL
ORDER REQUIRING PRODUCTION OF DOCUMENTS
AND
PROTECTIVE ORDER

In Docket No. KENT 2009-1225-D the Respondent, Panther Mining LLC (''Panther
Mining" or "the company''), moves to compel the Complainant, Billy Brannon, to respond to
several interrogatories in the company's First Set of Interrogatories and to produce certain
31FMSHRC1515

documents requested in the company's First Request for Production of Documents. According to
the company, Brannon either has objected to the interrogatories and requests and/or has provided
incomplete information. Brannon replies that the Respondent's motion is not well taken. In
addition, he seeks specific protection :from production for a particular document claiming it is
shielded by attorney-client privilege. For the reasons stated below, the motion and request are
granted in part and denied in part, and the claimant's invocation of attorney-client privilege is
recognized in part. INTERROGATORIES, ANSWERS AND RULINGS

Interrogatory 1. With regard to the allegations in paragrap~ _6 of the Complaint of
Discrimination ("the Complamt") 1: ·
'·· · ·
·
·
·
(a) Identify each document, including witness statements, which relates to the facts
alleged. Motion; Exh. A at I.
Answer: Brannoz~ objects to this interrogatory as being overly broad and not reasonably
calculated to lead to the discovery of admissible evidence. For example, as [the company] is well
aware, Brannon has filed a civil lawsuit against Cloverlick Coal Company [(Brannon's then
employer and a "~ister" company of.Panther)1, and Robert Salyer[,J[a Cloverlick foreman].
("Saiyer'',) in Harlan [Kentricky] C~µit.Court .. Every do_cupientift .that cas~ arguably ''relates. to
the facts alleged" in [paragraph] 6 otthe instant Complaint c>fDiscrilnination.' In addition, every
document related to Black Mountain Resources' investigation of the incident "relates to the facts
alleged." · ·
·
·
·
Without waiving said objection, a "mine incident report'' regardi.llg saiyer,s uiiprovoked
assault of Brannon was also completed on 1/23/08.. [The company] already has a copy of this
1

Paragraph 6 of the Complaint states:
On January 23, 2008, while he was working underground
at Cloverlick Coal's No. 1 mine, Brannon was physically

assaulted by a [Cloverlick] foreman, Robert Salyer
("Salyer"). After Brannon complained about said
assault to officials of Cloverlick Coal and Black
Mountain Resources, [(Black Mountain is the parent
company of Cloverlick and Panther)], he was
transferred to [Panther's] No. 1 mine by
[Black Mountain]. Brannon worked at said mine
until the discriminatory acts took place that form the
bases of this case.
Complaint at 3.
31FMSHRC1516

document. Motion; Exh. Cat 1-2.
The company states that Brannon's answer is not responsive, because the company asked
Brannon to "identify'' each document, including witness -statements, relating to the facts alleged
and Brannon "did not identify a single document in his· possession, nor did he state he has none."
Motion 2. The company maintains it is entitled to know the bases for Brannon's claims, and that
Brannon knows he neectnot specifically identify documents filed in formal legal proceedings to
which the company is a party, but that he can identify them generically and that Brannon is
required to identify each· document in his possession that relates to the facts alleged. Id.
Brannon responds that he attempted to answer lnterrogat9ry ! in good faith, that
paragraph 6 was included in the complaint as background information, and that for Mine Act's
purpose the important thing in the paragraph is not the allegation of assault, but that ·Brannon
complained about the assault to officials of Cloverlick and Black Mountain. Resp. at 3.
Moreover, because Panther's attorney represents Cloverlick in the civil suit, Panther is well
acquainted with the basis of the suit. Further, since Cloverlick's attorney has deposed Brannon
and interviewed everyone with knowledge of the assault, it is pointless to ask Brannon to identify
each person about whom the company already knows. 2
RUiing: The motion IS GRANTED IN PAllT. •. I agree with Brannon that the pertinf?}t . :
facts for Mine Aetpmposes are that Brannol! ~J.jiplained to. officia,I~· of Cloverlickand;Black ; · ·.
Mountairi 'about the alleged assault and that Brannon
sub&equetttly ti-atiSferred to Panther's
No.' 1 mine, where he worked until his employment was terminated. Therefore, within 20 days of. ·
the date of this Order, Brannon shall respond to Interrogatory l:(a) by identifyitig each document,
including witness statements, of which he is aware that relates to Brannon's complaint(s)about
the alleged assault to Cloverlick and to Black Mountain·.oflicial~ ·and he shalHdentify each. ·
document of which he is aware that relates to his subsequent transfer to Panther's mine.

was

(b) Identify each person who knows about the facts alleged. Motion; Exh. A at 2.

Answer: Brannon, Salyer, the miners who were in the buggy with Brannon at the time of
the assault; Rick Raleigh ... who interviewed the miners o/b/o Panther; Denise Davidson; Otis
Doan; Steve Hodges ... ; Tony Oppegard ... ; Tracy Stumbo (OMSL, P.O. Box 907, Martin, KY
41649); various unknown officials at Black Mountain. Motion; Exh.C at 2.
The company objects that ''the miners who were in the buggy with Brannon at the time of
2

Counsel for Brannon also makes unflattering observations about the way the company's
interrogatories are framed and about opposing counsel's "lawyering'' skills. Resp. at 3. Counsel
is requested to desist :from such observations. Those appearing before the Commission are
expected to treat one another with civility at all times. If comments are necessary concerning an
attorney's manner of practice, they are made by the Commission and its judges, not by opposing
counsel.
31FMSHRC1517

the assault" and ''various unknown officials at Black Mountain" are vague statements. Motion at
2. It asserts that Brannon should "identify these persons by names[,] or[,] if not by name, in
some other manner." Motion at 3
Brannon responds, inter alia, that Interrogatory 1(b) seeks ''virtually pointless
information." Resp. at 5.
Ruling: As stated above, as I read the interrogatory, for Mine Act purposes it asks
Brannon to identify each person who knows about Brannon's complaints to officials of
Cloverlick and Black Mountain officials about the assault and to identify each person who knows
about his subsequent transfer to Panther's No. I mine. The motion JS. G~D as fol}Qws:
Within 20 da:Ys of the date of this Ortler, Brannon shall identify those of whom he is aware (both·
miners and company officials) who have knowledge of his complaint(s)and subsequent transfer.
Interrogatoiy 2: With regard to the allegations in paragraphs 7 and 8 of the Complaint [3]
[,]please:
(a) Identify each document, including witness statements, which relates to the facts
alleged. Motion; Exh. A at 2.
'

.. :_

· . AnSwer:' Brannon. objects to.this .interrogatory. as }'>eing .overly·broOO, ~d' not reasonably.~
''

.

.

.
.

.

.

·.

·.;;_.i

····1·

,_ ~Paragraphs 7 and 8 of th~ compl~t state:_·.

••

..

•

.

•

("OMSL"), and asked OMSL to file disciplinary
charges against Salyer -with the Kentucky Mine
Safety Review Commission ("MSRC") because
ofSalyer's assault of Brannon. Brannon, through
his attorney, asked OMSL to seek the revocation
ofSalyer's foreman's certificate.
8. As a result of the letter ... OMSL conducted an

investigation ofSalyer's assault of Brannon,
OMSL's chief accident investigator, Tracy
Stumbo ("Stumbo") subpoenaed and interviewed
the witnesses to the assault, and Stumbo also
subpoenaed and interviewed Salyer, who was still
employed by [Black Mountain.] [Footnote deleted].

31FMSHRC1518

·"

··, ...

...

7: On April 29, 2008, Brannon's attorney wrote.
to Johnny Greene, the Executive Director of the
Kentucky Office of Mine Safety & Licensing

Complaint at 3-4.

•I

.'

~·

calculated to lead to the discovery of admissible evidence. For example every document in
OMSL's investigatory file regarding Salyer-arguably 'relate8 to the facts alleged' in,, 7-8.
Without waiving the objection, the letter of Johnny Greene referenced in ,- 7 is being
provided. Motion; Exh. C at 2-3,
The company notes that aside from the Greene letter, Brannon merely referred to "every
document in OMSL's investigatory file" and that Brannon "should be required to identify and
produce every document in his possession relating to the facts alleged." Motion at 3.
Brannon responds that he views the letter ofApril 28, 2009, as a ''protected activity"
under § 105(c) of the Mine Act and that he already has provided the. letter to the company, .
despite the fact the company's attorney has a copy. As far as the identities of each person who
knows about the facts alleged, Brannon asks why his attorney should "waste his time listing
people whom the company already knows - i.e. [Oppegard;] [Brannon;] Johnny Greene; Tracy
Stumbo; Salyer and Raleigh." Resp. at 7.
Ruling: The motion IS GRANTED IN PART. The company asks Brannon to identify
each document, including witness statements, relating to the facts alleged in paragraphs 7 and 8
· of the complaint. The pertinent facts alleged in Paragrapw7 are: that on Apri129, 2009; :Opp~gatd ·,
·. wrote the letter 'fr,, Greene asking OMSL to filed:disciplinary charges. agafustSalyet because. oL,:. ·
the alleged assault. The document relating to the facts alieged is the
which the • ·
Complainant has identified. Therefore, Brannon has complied with this· part -of the interrogatory.·;;
However; he bas not complied with theinterrogatoi'y as it.relates-to Paragraph 8 of the
... · ._·. ;
Complaint,. As I read the interrogatory, the pertinent facts alleged are that: Stumbo subpoenaed ·. ·:
and interviewed the witnesses to the assaulfand that-Stumbo subpoenaed .and interviewed Salyer. :·
The interrogatory requires Brannon to identify the documents of which he is aware relating to
Stumbo's interview of the witnesses and Stumbo's subpoena and interview of Salyer. Within20
days of the date of this Order, Brannon is ordered to comply by sending the company a list of the
documents of which he is aware that relate to Stumbo's interview of the witnesses and Stumbo's
subpoena and interview of Salyer. Ifknowri, Brannon must describe each document by type
(e.g., letter, statement, affidavit, etc.) date, author, and subject matter (a brief summary is
sufficient).

letter:·

(b) Identify each person who knows about the facts alleged, including those who were
interviewed by Stumbo. Motion; Exh. A at 2.

Answer: Oppegard; Brannon; Johnny Greene; , .. Stumbo; Raleigh; Salyer. The
employees of Cloverlick Coal, a subsidiary of Black Mountain ... who were interviewed by
Stumbo are known to Raleigh. Motion; Exh~ C at 3.
The company objects to that part of Brannon's response which states: "[T]he employees
of Cloverlick ... who were interviewed by Stumbo are known to Raleigh." The company
31FMSHRC1519

asserts that Brannon should be required to identify the persons if he knows their identities.
Motion at 3.
Brannon responds that it is a waste of time for his attorney to identify people who the
company already knows, that the only other persons who would have knowledge of those
interviewed are the interviewees themselves, and that Brannon "does not actually know who was
interviewed." Resp. at 7-8. Brannon goes on to state his ''understanding" that the "miners who
were interviewed were the same miners that Raleigh already interviewed." Resp.at 7.
Ruling: The motion IS GRANTED. The statement to which the company objects is a
non-response. The interrogatory asks Brannon to identify each person who was interviewed by
Stumbo, and Braniton must respond to the ititertogatory as asked. This means he must
identifying by name (assuming he knows the name) each person he knows who was interviewed
by Stumbo. If Brannon cannot identify the person(s), he should so state. Within 20 days of the
date of this Order, he is directed to answer the interrogatory as asked.
Interrogatory 3. With regard to the allegations in paragraph 9 of the complaint[,] [4]
please:
.(a) ;]dentify,each document[,] includirig witness·statemeilts, which relates to the facts ·
· : <. ·.
···
:: · ·
· · " · · /.
··
, 3:llege<L:Motion; Exh; A at 2.
... ·

Answer.' Brannon objects to this interrogatory as being overly broad and not reasonably
· ealculated to lead. to the discovery of:admis8ible evidence. For example, every doctiment in :~- .··
'MSHA'sjnvestigation file.arguably ~'relates·to the facts alleged" in 19, which Panther already- .
has in its possessiOn. · Motion; Exh. C at 3 .· .· :,; ·
..
The company asserts that "Brannon should be required to produce the documents in his
possession, [and] not refer generally to broad categories of documents." Motion at 4.
Brannon responds that every document in MSHA' s investigatory file "relates to"
Brannon's discrimination complaint [filed with MSHA], but that Brannon does not have access
4

Paragraph 9 of the Complaint states:
On September 7, 2007, while Brannon was working
in the Panther mine, he filed a discrimination complaint
with MSHA ... regarding [Panther's] discriminatory
treatment of him because, among other things, he had
documented safety problems regarding the buggy he
was assigned to operate.

Complaint at 4.
31 FMSHRC 1520

to the file and cannot identify each document therein. Further, every document in Brannon's
§105(c)(3) complaint arguably ''relates to'; the initial discrimination complaint, and Brannon asks
what purpose is served to identify every pleading in a case file the company already has. Resp. at
4.
Ruling: The motion IS GRANTED. Brannon's answer is a non-answer. Paragraph 9 of
the complaint states that Brannon engaged in protected activity at the mine by filing a
discrimination complamt with MSHA.. It further asserts that Brannon was subjected to
discrimination because of prior protected activity regarding his documentation of safety problems
with his assigned buggy and "other things." Within 20 days of the date of this Order, Brannon
shall·:respond to the interrogatory~ asked by identifying each document of which he is .aware
that relates to the fact he filed the September 7 complaint with MSHA and to the allegations
within it. Obviously, he should identify the complaint. He also should identify any documents,
including witness statements, filed with the complaint and any documents, including witness
statements, that relate to Brannon's assertions of discrimination due to his documentation of
safety problems associated with his assigned buggy and other protected activities that he
maintains form the bases for the company's alleged discrimination.
(b) Identify each person who knows about the facts alleged. Motion; Exh. A at 2. . .
•.

:·-t:·.

Answer: Oppegard, ·wesAddington ...., Brannon, Hodges, Raleigh; Gary Harris;vari~
other MSHA personnel. Motion; Exh. C at 3.
,,
;

/:":

. · · ' · ;· The. company states that Brannon should be.required to identify .the ''various:other MSHA.,
.· pet-sonnet". Motion at 4.
,

Brannon responds that the requirement· is "frivolous." Resp~ at 9.
Ruling: The motion IS G~D. Brannon must answer the interrogatory as asked.
The interrogatory does not require him to speculate as to whom might know he filed a September
7 complaint or who might be aware of the nature of his complaints about the buggy or his other
unspecified protected activities, it asks him fo identify those he "knows." Within 20 days of the
date of this Order, Brannon shall identify those he knows are aware of(l) his filing of the
September 7 complaint; (2) his documentation of the safety problems associated with his
assigned buggy; and (3) other protected activities that he alleges form the bases for the
discrimination he asserted on September 7.

Interrogatory 4. With regard to the allegations of paragraph 11 of the Complaint [5][,]
5

Paragraph 11 states:
On September 23, 2008, Brannon's attorney wrote
a letter on Brannon's behalf to Ivan T. Hooker, the

31FMSHRC1521

please:
(a) Identify each document which relates to the facts alleged. Motion; Exh. A at 3.
Answer: Brannon objects to [the] interrogatory as "overly broad and outside ... his

knowledge." For example, "every document regarding the issuance of a citation as a result of the
letter arguably "relates-to the facts alleged" in 1 11. If Panther contested said, citation, then every
document related to that contest proceeding is arguably "related to the facts alleged."
Without waiving said objection, the letter referenced in [paragraph] 11 (a copy of which
was mailed t°'Raleigh on 9/23/08), [C]itation [No.] 7496827 issued by MSHA to Panther ... and ·'
the accompanying MSHA inspection notes;[6) Motion; Exh. C at 4. ··
. The company asserts that Brannon's·response is ''vague" and that Brannon "should be
required to identify and produce responsive documents. Motion at 4.
Brannon states the crux of the allegation in paragraph 11 is that Brannon engaged in a
protected activity through his attorney when the attorney wrote to Hooker, and that even though
the interrogatory is "overly broad," Brannon nonetheless identified three documents, all ofwhich
are in the company~s possession. Resp. at 10.
· ··
;

~·

·'

..

Ruling: The motion IS DENIED. As I read the Complaint, the pertinent.facts allegoo are .'.

that Brannon's attorney wrote·a letter on September 23 tO the MSHA District Manager regarding , .
the company; s :3:J.leged failure:to provide Brannon With SCRS:.s. ·As'. Btannon notes, the comp~y ..
does nqt deny that it was sent and presumably Still ha8 a copy of the letter. Brannon identified
the citation that was issued as a result of the· inspection and ·the inspector's notes associated with.
the citation. He need not do more.
(b) Identify each person who knows· about the facts alleged. Motion; Exh. A at 3.

Aitswer: Oppegard; Wes Addington ... ; Brannon; Hodges; Gary Harris; other MSHA·
personnel. Motion; Exh. C at 4.
MSHA District Manager responsible for regulating
the Panther mine, regarding Panther's Mining's
failure to provide Brannon with the required
SCSR's.
Complaint at 4.
6

Brannon asserts Citation No. 7496827 and the accompanying MSHA inspector's notes
already have been given to the company as a result of the company's production of documents
request in Docket No KENT 2009-1259-D.
31FMSHRC1522

The company states that Brannon should be reqtiired to identify the "other MSHA
personnel." Motion at 4.
Brannon responds he does not know who the "other MSHA personnel" are, but he
"assumes" there are unnamed employees ofMSHA who know about the letter. Resp. at 10.
Ruling: The motion IS DENIED. I conclude Brannon has answered the interrogatory to
the best of bis ability. His reference to "other MSHA personnel" is based on bis assumption that
there are other MSHA employees who know about the September 23 letter, but that he does not
know this for a fact. Brannon's assumption is reasonable, and I find that he has done what he
could to respond to .the int~gatory.
Interrogatory 5. With regard to the allegations in paragraph 13 of the Complaint [7][,]
identify all facts, persons with knowledge and documents, including witness statements,
regarding the investigation conducted by Guy Fain. Motion; Exh. A at 3.
Answer: Brannon objects to this interrogatory as being overly broad and outside the scope
of his knowledge. Without waiving said objection, Brannon states that ... [the company] sat in
on the interviews of numerous witnesses who were interviewed by [Fain]~ including the
interview of Shelton, whereas Brannon did not attend any of these interviews. Motion;Exh•. Cat·
4.

.. ·.· . ·.
.. . ~

...

: '.':'

..

. : .i ~

The company. states that Bnuinon should be required to identify the persons known to
him~ as wellas::the:facts and documents. thatsU:pport the allegations:mparagraph 13, that it is not,
responsive fot·Brannon to assume that Panther has'all: of the information requested. Motion at 4. ·
According to the company, although Brannon refers to statements~- gave to MSHA, he gave, ·
''numerous" such statements and he should be required to identify them.
7

Paragraph 13 states:
As a result of Brannon's filing of the safety
discrimination complaint referred to in 1 9,

MSHA assigned a special investigator, Guy
Fain ("Fain''), to investigate the case As
part of his investigation, Fain interviewed
employees of Panther Mining, including
Shelton, regarding Brannon's allegations
of discrimination and unsafe mining
practices.
Complaint at 4-5.

31 FMSHRC 1523

Brannon does not specifically respond to the company's assertions~
Ruling: The motion IS GRANTED. Brannon must respond to the interrogatory as asked.
This means that within 20 days of the date of this Order, Brannon must identify facts and
documents within his knowledge regarding Fain's investigation. For example, if Brannon has a
letter from MSHA informing him ofFain's appointment as the investigator, it must be identified.
If Brannon knows the-names of persons who assisted Fain in his investigation, the persons must
be identified, and if Brannon or anyone he knows provided a written statement(s) to Fain as part
ofFain's investigation, the statement(s) must be identified. If Brannon has no knowledge of such
facts and/or documents, he muSt: so state.
Interrogatory 6. With regard to the allegations of paragraph 14 of the Complaint [8][,]
please;
(a) Identify each document, including witness statements, which relates to the
facts alleged. Motion; Exh. A at 3.
Answer: Brannon objects to this interrogatory as being overly broad. For example, all
documents filed in said case.... which already are in the possession of Panther - arguable "relates
-to the facts alleged." in, 14. Motion; Exh. Cat 5. · ·
)· ,·
The company a8serts that Brannon should be required to identifyr~sponsive documents
··relating to ·the allegations in paragraph· 14 and.produce them.· It also notes. that· Panther advised,
Brannonlie can "generically identify"' ·and·need. not produce.officially filed., documents in :;·
· ,· .·
identified legal proceedings. Motion at 5. · ..
Brannon does not specifically respond to the company's assertions.
Ruling: The motion IS GRANTED. Within 20 days of the date of this Order, Brannon
must respond to the interrogatory as asked. Paragraph 14 states that on November 20, 2008,
Brannon filed a complaint of discrimination with the Commission. Brannon's response should
identify the complaint, any documents filed with it, and any documents upon which the
8

Paragraph 14 states:
On November 20, 2008, while Brannon was

still working at the mine, he filed a Complaint
of Discrimination against Panther Mining with the ... [Commission] - under§ 105(c)(3)
of the Mine Act, regarding the matters set forth
10-12 herein.

iicm

Complaint at 5 (footnote deleted).
31FMSHRC1524

complaint was based.

(b) Identify each person who knows about the facts alleged. Motion; Exh. A at 3.
Answer: Oppegard; Brannon; Hodges; Chief Judge Lesnick; Judge Barbour; Raleigh;
various other employees of Panther Mining. Motion; Exh. C at 5.
The company asserts that Brannon should be required to identify the ''various other
employees of Panther Mining." Motion at 5.
Brannon does not specifically respond to the company's assertions.

Ruling: The motion IS GRANTED. If Brannon knows the identity of the any of the
''various other employees," within 20 days of the date of this Order, he must provide Panther
with the names of said employees. If Brannon does not know the identity of any of the ''various
other employees," within 20 days of the date of this Order, he must so state.
Interrogatory 7: With regard to the allegations in paragraphs 15 and 16 of the
complaint [9][,] please:

9I>aragrapli 15-0fthe·complaintstates: ·

.. · On~Friday, February 27,:200~;,at.the end of,
· Brannon's work shift, he .droveto, the MSHA
field office in Harlan, Kentucky[,] to file another·
safety discrimination co:rnplaint against Panther
Mining, pursuant to § 105(c) of the Mine Act,
and to report to MSHA various unsafe conditions at [the company's] No.1 mine.
Brannon arrived at the MSHA office at
approximately 4:30 p.m.
Complaint at 5,
Paragraph 16 of the complaint states:
After he.filed the discrimination complaint
[footnote deleted], Brannon spoke with Craig
Clark, a[n] MSHA coal mine inspector, for
about Yi hour outside the MSHA office.
During this conversation, Brannon told
Inspector Clark about various unsafe
conditions at the mine.
31 FMSHRC 1525

(a) Identify each document, including witness statements, which relates to the facts
alleged. Motion; Exh. A at 4.
"
Answer: Brannon objects to this interrogatory as being overly broad. For example, every
document filed or produced in said case, including witness statements taken by MSHA (the
interviews of which Panther sat in on)[,] arguably ''relate to the facts alleged in ft 15-16.
Without waiving said objection, the complaint referenced in , 15 ... already is in the
possession of Panther. Motion;Exh. Cat 5.
The company argues that Brannon ~fshould be required to identify and produce the
requested documents or make clear reference to dt>cuments· filed in specific legal proceedings.''
Motion at 5-6.
Brannon does not specifically respond to the company's assertions.
Ruling: The moti~n IS GRANTED. Brannon has not responded fully to the
interrogatory. Brannon identified the complaint. However, it seems likely there are other
documents relating to the February 27 complaint that Brannon has not identified and/or
documents relating to the reporting of alleged unsafe working conditions. Within 20 days of the '.
date ofthis Order, Braiinon niust identify any documents filed with the complaint. He·also must · ·
identify any documents that relate to; the allegedly unsafe working conditions upon which the
complaint is based. If no such documents exist, he must.so state. In addition, he must identify .
any documents that relate to-his half"'houi discussion with Inspector-Clark· about alleged ,unsafe .
conditions at the mine. If Brannon gave Clark any'such doc'um~ts, he must so state and identify.
them. If Brannon discussed any such documents with Clark; he must so state and identify them.
(b) Identify each person who knows about the facts alleged. Complaint; Exh. A at 4.

Answer: Brannon; Craig Clark ... ; Oppegard; Addington; Raleigh; Ross Kegan ...;
Hodges; Gary Harris ... ; and other MSHA personnel. Motion; Exh. C at 5.
The company asserts that Brannon should identify the "other MSHA personnel." Motion
at 5.
Brannon does not specifically respond to the company's assertions.
Ruling: The motion IS GRANTED. Within 20 days of the date of this Order, if
Brannon knows the identities of any of the "other MSHA personnel," he must so state. If he does
not know the identities, but simply assumes there are "other MSHA personnel" who know about
the facts alleged, he must so state.
Complaint at 5.
31FMSHRC1526

Interrogatory 8: With regard to the allegations in paragraphs 18-23 of the Complaint
1
[ °][,] please:

(a) Identify each document[,] including witness statements, which relates to the facts
alleged. Motion; Exh. A at 4.
Answer: Brannon objects to this interrogatory as being overly broad. For example, every
document in MSHA's investigatory file and every document in this discrimination proceeding
18-23. Motion; Exh. Cat 6. In addition, Panther's
arguably "relate to the facts alleged"
interviews of the employees who were present during all or part of the meeting between Shelton
and Brannon "relate to the facts alleged.~' Id. .· ·. ·

in,,

The company argues that Brannon should be required to identify the documents as
requested and should produce them. Motion 6.
With regard to production, Brannon responds he does not have MSHA's investigatory
file, and he does not have t}ie statements Panther took of its employees who were present during
the meeting on February 28. Response 12.
Ruling: Themotion·IS GRANT~D . .Brannonhas·.notresponded fully to the
...
·interrogatory which simply asks. that Brannon identjfy.each:document, including wi~ss, ·· : ,· :·
·Statements;fwhieh relates to the facts alleged,il) paragraphs 18-23 of the Complaint. If there ate'
documents within his knowledge that he can identify;arising out.of or:related to the February 28
meeting~ Brannon must identify them withiri20·days ofthe·date-0fthis Order:.·.Forexample; . ~:... '
. ' .. .

..... ' ..'. . i

.

.

~:·

. .

.

•;'

... ~ ·.

' .

... ,
~. ·.

.

1

°I>aragraphs 18 -23 of the Complaint relate to the alleged events of Saturday, February

28, 2009. Brannon asserts he went undergrolind at 5:55 a.m. .While traveling to his work area,
Brannon was told by a mine foreman that Shelton, the mine superintendent, wanted to have a
crew meeting, and Brannon returned to the surface. The meeting began at 6:40 a.m. in Shelton's
office. Management officials and hourly employees were present. Brannon asserts that Shelton
stated Brannon was "corrupting ... [the] day shift and ... [the] mine, that he wasn't performing
his job satisfactorily, and that he was causing all of the mine's problems." Complaint at 6. The
complaint further states that during the meeting, Shelton cursed Brannon, gave him a ''written
warning" for his alleged unsatisfactory job performance, threatened to fire him, and transferred
him from the day shift to the second shift effective Monday, March 2. Id. The Complaint quotes
Shelton as telling Brannon, "Whenever a day shift job comes open, you can think to yourself, 'If
I wasn't suing this company, that job might have been mine"'(Id.) and that as long as he worked
for Panther or another Black Mountain company, he would remain on the second shift.
Complaint at 6-7. Finally, the Complaint states that during the February 28 meeting, Shelton
mentioned Craig Clark, the MSHA inspector with whom Brannon had spoken in the Harlan
MSHA office on February 27, and that Shelton said he knew Brannon and Clark were related.
Complaint at 7. The Complaint asserts that Shelton also said of Clark, "I can't stand the ground
he walks on either." Id.
31 FMSHRC 1527

..

~_i·r-.

Brannon asserts Shelton gave him a "written warning"; yet he does not mention it in his answer
to the interrogatory.
(b) Identify each person who knows about the facts alleged. Motion; Exh. A at 4.

Answer: Brannon; Shelton; all of the miners who were present during the "meeting";
Oppegard; Addingto11i-Hodges; Harris; MSHA's special investigators. Motion; Exh. Cat 6.
The company argues that Brannon should be required to identify the miners at the
meeting, as well as the special investigators. Motion at 6.
Brannon responds that he has produced the names of those he knows who were present at
the meeting and who are not miners, and that those he knows who are miners are protected by the ·
miner witness rule, Commission Rule 62 (29 C.F.R. §2700.62), and that under the rule he is not
required to identify the miners until two days prior to the hearing. Resp. at 13.
Ruling: The motiQn IS GRANTED IN·PART. If Brannon knows the names and
addresses of any MSHA special investigators:who know about what allegedly happened during
the February 28 meeting, he must state as much.. He also·must state the names of the
investigators. Hemust do these things·within20 days::ofthe·date·ofthis Order.·
. '.-'.··

of

With regard to the identity ofmfuers, .the names those miners who Brannon knows; '
have kriowledge of the facts relating fo the February 28 meeting and who he does not intend to ·
.cal1 as witnesses mustbe disclosed to the companyby December.15, 2009, which is 30· days :· .,
before the close of discovery. Between receiving the disclosure ·and the end of discovery, the· .
company must complete any additional discovery with regard to the named miners. · ·
If there are miners who Brannon believes have knowledge ofthefacts relating to the

February 28 meeting and who he intends to call as witnesses, he must disclose the names and
contaet information
of the witness miners to the company two business days before the hearing
, II
convenes. 29 C.F.R. § 2700.62.

[

12
][,]

Interrogatoiy 9: With regard to the allegations in paragraphs 24-25 of the Complaint
please:
11

The hearing is presently scheduled to begin on March 2, 2010, which means the names
must be disclosed by 8:30 a.m., Friday, February 26, 2010.
12

Paragraphs 24 and 25 of the Complaint state the complaint's "l't Cause of Action'': to
wit, that the company ''verbally abused and threatened Brannon on February 28, 2009, because of
Brannon's 'protected activities' as set forth in paragraphs 6, 7, 9, 11, 14, 15 and 16 of the
complaint," and that the ''verbal abuse" and "threats" were "discriminatory and retaliatory" and
in violation of section 105(c)(l) of the Act. 30 U.S.C. § 815(c)(l). Complaint at 7.
31FMSHRC1528

(a) Identify each document, including witness statements, which relates to the facts
alleged. Motion; Exh. A at 4.
Answer: Brannon objects to this interrogatory as being overly broad and redundant.
Motion; Exh. C at 6.
The company ar-gues Brannon has not responded to the interrogatory as asked and should
be required to do so. Motion at 7.
Brannon responds he rests on his previous responses. Resp. at 13.
Ruling: The motion IS DENIED. Paragraphs 24 and 25 ofthe Complaint do not raise
factual assertions new to the case. Rather, they present the legal conclusion that the company
alleges results from previously asserted facts. Those facts have been the subject of prior
interrogatories and rulings, and Brannon is correct in describing Interrogatory 9(a) as redundant.

(b) Identify each p~rson who knows about the facts alleged. Motion at 5.

as

Answer: Brannon objects to this interrogatory "overly broad and redundant." Motion;
. -Exh. C at 6. .
.y ; -.. ·. "· ·1. .. : ..
·,.. ,.
: · - ' The company argues Brannon has Iiot respondedto the.interrogatory as asked and should .
.... .,
·be required-to do so. Motion at 7.
·Brannon responds that he rests on his previous responses.. Resp~ at 13 ...
Ruling: For the reason given regarding Interrogatory 9(a), the motion IS DENIED with
regard to Interrogatory 9(b).
(c) State all facts and identify all documents and persons with knowledge that support
your allegations that Shelton verbally abused or threatened you because of''protected activities."
Motion; Exh. A at 5.
Answer: Brannon objects to this interrogatory as being overly broad and redundant.
Without waiving said objection, Brannon states that the ''persons ... who support [his]
allegations are unknown at this time. In addition, the names of any such witnesses need not be
provided ... until two days before the hearing, pursuant to 20 C.F.R. § 2700.62." Motion; Exh.
Cat 6-7.
The company argues that Brannon has not responded to the interrogatory as asked and
should be required to do so. Motion at 6-7.
Brannon responds that be rests on the answers and objections given in his original

31 FMSHRC 1529

response. Resp. at 13
Ruling: The motion IS DENIED with regard to Interrogatory 9(c). Like Interrogatories
9(a) and 9(b), Interrogatory 9(c) is redundant and need not be answered further.
Interrogatories 10 and 11. The interrogatories will be ruled on together.
Interrogatory 10: With regard to the allegations in paragraphs 26-27 of the Complaint
[ ][,] please:
13

(a) Identify each document, including witness statements, which relates to the facts
alleged.
(b) Identify each person who knows about the facts alleged.

(c) Identify all facts, documents, and persons which have knowledge that support your
allegations that Shelton g~ve you a written warning because of alleged ''protected activities."
Motion; Exh. A 4-5.

[

· ' Interrogatory 11: With regard to the allegations in paragraphs 28-29 of the Complaint
](,J please:

14

. .

. .. . ,'•'

. ;.' f·t~'-·• . ·.•

.

.

•...

(a) Identify each document, including witness statements, which relates to the· facts
alleged.
~

•·. , ...I ··.

(b). Identify each person who knows about the facts alleged. ·

(c) Identify all facts, documents and persons with knowledge that support your
allegations that Shelton transferred you to the zn<1 shift because of the alleged protected
activities." Motion; Exh. A at 5-6.
13

Paragraphs 26 and 27 state the Complainant's ''2nc1 Cause of Action": to wit, that the
company and Shelton issued a ''written warning" to Brannon on February 28 because of alleged
''protected activities" as set forth in paragraphs 6,7, 9, 11, 14, 15, and 16, and that the ''written
warning" was "discriminatory and retaliatory" and violated section 105(c)(l) of the Mine Act.
Complaint at 7.
14

Paragraphs 28 and 29 state the complainant's "3nt Cause of Action": to wit, that
effective March 2, 2009, the company and Shelton transferred Brannon to the second shift, that
the second shift is a "less desirable shift," a shift that Brannon had told the company he preferred
not to work, that the transfer took place because of "protected activities" set forth in paragraphs
6, 7, 9, 11, 14, 15 and 16, that the transfer was "discriminatory and retaliatory" and that it
violated section 105(c)(l) of the Mine Act. Complaint at 7-8.
31 FMSHRC 1530

Answer: Brannon objects that the interrogatories are ''very broad and redundant."
Motion; Exh. C at 7.
The company asserts that Brannon should be required to respond to the interrogatories as
asked. Motion at 7.
Brannon responds that he rests on his previous answers and objections. Resp. at 13.
Ruling: The motion IS DENIED with regard to Interrogatories 10 and 1 L Paragraphs
26, 27, 28 and 29 of the Complaint do no raise facts or assertions new to the case. Rather, they
summarize the legal conclusions the Complainant alleges result :from previously asserted "facts."
Those "facts" have been the subject of prior interrogatories and rulings, and Brannon is right to
describe Interrogatories 10 and 11 as redundant.
PRODUCTION OF DOCUMENTS

The company has moved for the production of all documents "identified or referred to" in
the Complainant's answers to the interrogatories. Motion at 7; see Motion; Exh. B. Pursuant to
the rulings set forth above, within 20 days of the date of this Order, the Complainant shall
produce all documents in }tis possession that are identified or refeyred to in· the responses .he has ·.
been ordered to give. The documents shall be produced at the company's office: ·158 Central
Street, Benham, Kentucky.
·.·
..
PRODUCTION OF E-MAILS

Brannon, through his attorney, Tony Oppegard, seeks to exclude :from production an e. .
mail message Brannon sent to Oppegard on February 28, 2009. Oppegard maintains the
message, a copy of which he has submitted for my review, memorializes Brannon's recollection
of what was said during the meeting between Shelton and Brannon on the morning of February
28. Oppegard invokes attorney-client privilege for the e-mail and essentially seeks an order
barring its production.
I have reviewed the message, the first part of which is dated February 28, 2009. In it
Brannon describes a meeting, presumably on February 27, that he had with others at the mine.

He describes his version of who said what to whom and he hypothesizes about actions the
company might take. Later in the e-mail, Brannon states his understanding of the relationships of
various miners. Finally, in the penultimate part of the e-mail, Brannon gives his recollection of a
topic discussed on February 28 and who said what to whom about it. The e-mail closes with
Brannon telling his attorney to call if his attorney has any questions.
I conclude a majority of the February 28 e-mail is, as Complainant's attorney maintains,
protected by the attorney-client privilege. The message relates to the confidential communication
of information by a client to his lawyer to facilitate the rendering of legal services by the

31FMSHRC1531

attorney. The information is in the form of the client's recollection of conversations and facts
that relate to issues in the case the attorney is presenting on the client's behalf. These parts of the
e-mail are not subject to disclosure. 15
However, three small portions of the e-mail fall outside the attorney-client privilege.
They are Brannon's description of his understanding of the relationships of various persons who
may or may not be inv..olved in the case, Brannon's suggestion his attorney call him if his attorney
has questions, and Brannon's closing words and "signature."· These are subject to disclosure and
must be produced.
Accordingly, within 20 days of the date of this Order, Brannon SHALL PRODUCE for
· the company at its Benham, Kentucky, office a redacted copy of the February 28 e-mail. Parts of
the copy that are not redacted shall be: (l) the paragraph beginning with the name ~'Josh Napier''
and ending with the sentence, "So where's that leave me at lol"; (2) two sentences in the last
paragraph, the first beginning "If you need any help ..." and the second beginning, ''Tony ...";
and (3) the last four words of the e-mail, those being Brannon's closing words and name.

David F. Barbour
Administrative law Judge
i ... '

Distribution:
....

MaryBeth Bemui, U.S. Department of Labor, Office of the Solicitor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522
Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY
41858

Stephen M. Hodges, Esq., Penn, Stuart & Eskridge, P. 0. Box 2288, Abington, VA 24212

15

1 have placed the copy of the February 28 e-mail in the record under seal, where it is
subject to review only by the Commission or another reviewing body.

31FMSHRC1532

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N. W., SUITE 9500
WASHINGTON, D.C. 20001
(202) 434-9980

November 13, 2009
DISCRIMINATION PROCEEDING

BILLY BRANNON,
Complainant

Docket No. KENT 2009-302-D
BARB CD 2008-07

v.
PANTHER MINING, LLC,
Respondent

No. I Mine
Mine ID 15-18198

BILLY BRANNON,

DISCRIMINATION PROCEEDING
Complainant

v.

. PANTHER MINING , LLC. ~d,
MARKD. SHELTON,
,
Respondent
SECRETARY OF LABOR, · . . .
on behalf ofBilLY BRANNON,
Complainant,

Docket No. KENT 2009-1225-D
BARB CD 2009-07

·_. No~ i Mine ·
·.·Mille JD 36~00017
DISCRIMINATION PROCEEDING
Docket No. KENT 2009-1259-D
BARB CD 2009-09

v.
PANTHER MINING, LLC,
Respondent

No. I Mine
Mine ID 15-18198

ORDER DENYING MOTION FOR PARTIAL SUMMARY DECISION

The Respondent, Panther Mining, LLC (''Panther'' or "the company'') has moved for
partial summary decision in the proceeding docketed as KENT 2009-302-D on the grounds that
certain alleged activities claimed as a basis for discrimination under the Mine Act are not
protected and that certain acts claimed as adverse actions do not justify Mine Act remedies. The
Claimant opposes the motion. Commission Rule 67 provides a judge may grant summary
decision as to all or part of a proceeding if there is no genuine issue as to any material fact and if
the tnoving party is entitled to such a decision as a matter oflaw. 29 C.F.R. § 2700.67. Because
I conclude genuine issues as to material facts remain, I cannot grant the motion.
31FMSHRC1533

THE COMPLAINT

Docket No. KENT 2009-302-D is a discrimination case based on a complaintbrought
under section 105(c)(3) of the Mine Act by Billy Brannon against Panther. The case has been
consolidated with two related proceedings: KENT 2009-1225-D, a second section 105(c)(3)
discrimination case brought by Brannon against Panther; and KENT 2009-1259-D, a section
105(c)(2) discriminatien case brought by the Secretary on behalf of Brannon against Panther.
The consolidated cases will be heard beginning on March 2, 2010.
In KENT 2009-302-D, Brannon charges he was discriminated against because he engaged

in protected activity by: (1) having his attorney write to minf? manag~ent of Black Mountain .
Resources (Black Mountain), the parent company of Cloverlick Coat Company, LLC
(Cloverlick),where Brannon then worked, and inform management that Brannon would file a
civil suit in Kentucky state court against Black Mountain and Cloverlick because Brannon was
allegedly assaulted with a hammer by Robert Salyer, a Cloverlick foreman (Complaint at 1 6)
1
[ ]; (2) having his attorney write to the executive director of the Kentucky Office of Mine Safety
and Licensing (OMSL) al_ld ask the OMSL to file disciplinary charges against Salyer because of
Salyer's alleged assault on Brannon (Complaint at 17); (3) filing a discrimination complaint with
MSHA regarding Panther's alleged discriminatory treatment because of Brannon's alleged
documentation of safety problems with .a buggy Brannon was assi~ed to operate at Panther's·
mine (Complaint at; 9); (4) having his attorney write to the MSHAdistrict manager regarding
the company's alleged failure to provide-Brannon with required setf:cont3.ined, self-rescue .,.
devices (SCSR's) (Complaint at 1 11); (5) filing the.instant discritpin~tioncomplaint with the. 1
Commission (C~~plaintat if 14); (6) filing another discrimination complaint agairist the
.,.
company at the MSHA field office in Harlan, Kentucky and reporting to MSHA various~ unsafe .,
conditions at the company's mine (Complaint at115); and (7)telling an MSHA inspect0r about'.
various, unsafe conditions at the mine, including safety problems with the buggy he was assigned
to operate. (Complaint at 1 16). See also Complaint at 1 17.
Because of the way the complaint was worded, it was not clear to me whether Brannon
was indeed claiming that all of the listed activities were protected under the Mine Act. I,
therefore, requested he supplement the record by listing all of the activities for which he was
claiming protection. Order to Supplement the Record (May 29, 2009). In response, Brannon
revised his list of protected activities as follows:
1st Cause of Action:
[1] Complaining to management ... about ... Salyer assaulting him[;]
1

Cloverlick and Panther are sister companies. Both are controlled by Black Mountain.
After the alleged assault, Brannon was transferred from Cloverlick's mine to Panther's mine,
where he continued to work until he was discharged. Following his discharge, he was
economically reinstated pending the outcome of these cases.
31FMSHRC1534

[2] Notifying Rick Raleigh that Brannon would be filing a civil lawsuit
against Cloverlick Coal ... , as set forth in 16 of the [c]omplaint[;]
[3] Requesting OSML to file disciplinary charges against ... Salyer; as

set forth in 17 of the [c]omplant[;] and

[-4] The filing of Brannon's civil law suit as set forth in, 9 of[the
· c]omplaint[.]
2nd Cause of Action:

[1] [A]11 of the protected activities set forth ill the "l st Cause of Action''[;]
[2] [A]ccurately completing the forms and checklists set forth 1 12 of
... [the c]omplaint[;2]
[3] .Complaining to ... management officials about having to walk
from head drive to head drive, during which he did not have
access to two SCSR's, as set forth in, 15 of the [c]omplaint. 3
Supplementation of Record (June 15, 2009).
.MOTION FORPARTIAL SUMMARY DECISION
···:·:,

._

...

·:

,.
Following the reeeipt ofBra.mlon'sstipplementation of the record, the company filed it~L.
motion fot partial summary decision; For,.the·purpose8 of the motion, the company act;epts .as· '
·true the following facts as stated in the complaint and in the supplement:
1. [On January 23, 2008,] Brannon was physically assaulted ...
by a mine foreman, Salyer, while working at a mine
operated by a Panther affiliate, [Cloverlick]. Complaint
at14.
2

Paragraph 12 of the complaint asserts that Brannon completed pre-printed company
checklists regarding the condition of the battery operated buggy he was assigned, as well as the
condition of the head drives and belt take up areas that he was responsible for maintaining and
that in completing the forms he documents unsafe conditions on several occasions. Complaint at
3.
3

Paragraph 15 of the complaint asserts that having to walk from head drive to head drive
was hazardous because Brannon was not always within 25 feet of two SCSR's as required by the
company's SCSR storage plan and that Brannon complained about the hazard to the mine
superintendent and to the mine foreman. Complaint at 4.
31FMSHRC1535

2. On April 25, 2008, Brannon's attorney infonned Cloverlick's
representative, Raleigh, that Brannon intended to file suit
against Cloverlick over the Salyer incident. Complaint at
, 6.
3. On April 29, 2009, Brannon's attorney wrote ... [the OMSL]
requesting that it take certain actions against Salyer for
the alleged assault, and OMSL conducted an investigation.
Complaint at 1 7.
4. On June 26, 2009, Brannon filed a civil suit against Cloverlick
and Salyer in a Kentucky state court for compensatory and
punitive damages for assault and battery and intentional infliction of emotional distress. Complaint at 1 9.
In addition, the company notes Brannon's assertions that[,] because he engaged in

protected activity, the company discriminated against him when .company officials "spoke
disparagingly'' about him, encouraged his co-workers :''to shun him," and imposed ''niore :·
onerous[,]unsafe working conditions on'him:~~ Complaint ,at ft 21, 22. 1 ~e company argues: :.
that neither of the alleged protected activities nor the alleged discrimina~ocy acts are:covered·by,
the Mine Act.
· ·: .·· ·,.
, ... ·
· THE-PARTIES' ARGUMENTS
THE ASSAULT AND THE RESULTANT STATE MATTERS

In the company's view, the fact that Brannon's attorney wrote to the OMSL, advised it of
Salyer's assault and requested state disciplinary action against Salyer, as well as the fact the letter
triggered an investigation of the incident by the OMSL, are not activities protected under the
Mine Act. Motion at 3. Therefore, even if they resulted in management personnel speaking
disparagingly about Brannon, urged his shunning and imposed unsafe working conditions on him
(Complaint at ft 20, 22), the company's actions would not violate the Act, because the actions in
which Brannon (and through Brannon, his attorney) engaged are not protected. The company
states that section 105(c)(l) of the Act bars discrimination because, inter alia, a miner has filed
or made a complaint ''under or related to the Act" (30 U.S.C. § 815(c)(l))[,] and Brannon's
asserted protected actions arise under state law[,] not under the Mine Act. Motion at 3.
Therefore, the threat to file a suit in state court based on the January 23, 2008, assault and the
filing of the suit are not protected. Nor is writing to the state agency requesting it discipline
Salyer and asking for and being granted an investigation of the Salyer/Brannon incident by the
agency. In fact, according to the company, ''None of Brannon's actions alleged in the
complaint's paragraph 4 [(Salyer's assault on Brannon)]; paragraph 6 [(Brannon's attorney
31 FMSHRC 1536

informing the company that Brannon would sue the company and Salyer over the assault)];
paragraph 7 [(the April 29, 2008 letter ofBrimnon's attorney to OMSL and the state agency's
subsequent investigation)} are 'complaints under or related to' the Mine Act." Motion at 5; see
also Resp. 's Supplemental Memo. at 2-3 (September 29, 2009).
Brannon responds that the activities with which the company takes issue are protected
under the Act and that Brannon '1Ieed not invoke the Mine Act to be protected under it."
Response at 2. Brannon cites several Commission decisions which he argues establish the
proposition that a miner's contacting. of state agencies regarding health or safety hazards is
protected. Id. at 2-3.

THE ALI.EGED ADVERSE ACTIONS
The company also take8 issue with Brannon's charge in, 20 of the complaint that
Brannon was discriminated against when company officials "spoke disparagingly" of him and
"encouraged [his] co-workers to shun him" because of the above alleged, protected activities.
Even if Brannon's activities are protected - and the company maintains they are not- in the
company's view, speaking disparagingly and encouraging shunning are not types of conduct
prohibited by section 105(c)~ This is because section 105(c) does not "address every slight or
negative action which can occur in the workplace,, especially. those which are vague and ~- · '·
-.,subjectiv..e[~}'such as encouraging shunning and talkingdi8paragingly. Motion at_6,.7; see.also ·
Resp.'s Slippleniental Memo. at 3;
·
·
· :·
,_.
Brannon, citing to Secretary ofLabor on behalfofJenkins v. ·Hecla-Day Mines
' ·, , .
·Corporation, 6 FMSHRC 1842, 1847,.J.~8(Augustl984),·aigtle$;that'such actions can·indeed:
constitute prohibited discriminatory actions in that they can subject a miner to a detriment in.bis ;' ' .'
employment relationship. Resp: at· 6-7. He also notes that the Act should be construed liberally.
Id. at 7-8 (quoting Secretary ofLabor on behalfofMark Gray v. North Star Mining, Inc., 21
FMSHRC 1(January2005)).
RULING

PROTECTED ACTMTY
As the company correctly points out, the Act bars discrimination because, inter alia, a
miner has filed or made a complaint "under or related to the Act" (30 U.S.C. § 815(c)(l)).
Beginning with its seminal case, Secretary ofLabor on behalfofPasula v. Consolidation Coal
Co., 2 FMSHRC 2786 (October 1980), the Commission made clear that when an alleged

protected activity is not expressly protected under the language of section 105(c)(1) of the Act for example, when the complaint does not assert he or she suffered discrimination because the
complainant filed or made a safety complaint related to the Act and its implementing regulations,
instituted proceedings or testified in proceedings brought under or related to the Act or suffered
discrimination because of any other activity expressly permitted by the Act - the activity still
31FMSHRC1537

-!f-·.

may be protected if it furthers the purpose of the Act, always being mindful that the Act "is
remedial legislation, and is[,] therefore[,] to be liberally.construed." 2 FMSHRC at 2789.
In legislative findings set forth at the beginning of the Act, Congress stated that the first

priority of the mining industry must be the "health and safety of [the industry's] most precious
resource-the miner'' (30 U.S.C. § 80l(a)) and that there is an "urgent need to provide more
effective means and measures for improving ...practices in the Nation's mines in order to
prevent ... serious physical harm [to miners]" 30 U.S.C. § 80l(c). Congress sought to
implement these findings by directing the Secretary of Labor and the Secretary of Health
Education and Welfare to develop and promulgate mandatory safety and health standards with
which operators and miners must comply. 30 U.S.C. § 80l(g). It further afforded miners .
specific protections. It did not~ however, afford miners protection :from allworkplace hazards.
In this regard it is significant that under the Mine Act, unlike the OSH Act, operators are under
no obligation to provide equipment and a place of employment ":free :from recognized hazards
that are causing or are likely to cause ... serious physical harm." 29 U.S.C. § 654(a)(l ). As a
consequence, conditions or practices may exist at a mine that are likely to cause or that actually
cause serious physical harm yet, which do not contravene the Act. In like manner, miners may
engage in activity that is· arguably related to safety but, because the activity is not ''under or
related to the Act," the.activity is not protected. 30 U.S.C. § 815(c)(l). Thus, when ruling on
whether an activity is protected, the _questiOn before ajudge is not whether the· activity ,is related .
t~·safeiy~per se, but; as Pasu/a. teaches, whethet .it is related ~o the .~tivities specified in S¢ction.
105(c)(1) or whether the activity furthers rights granted miners by the Act or otherwise -futlh~ ·
the purposes of the Act.

Turning.to the motion at hand, the Complait1ant'.lists: as its f41;t cause of action :that
Brannon complained .to ·mine management about Salyer' s alleged assault.: Supplement (June 15,
2009). As noted, the company accepts the allegation as true. Therefore, the question is whether
complaining to management about the assault is a protected activity. It may be or it may not be.
Because I cannot determine the answer on the basis of the record as it now stands, I must deny
the motion as it relates to the allegation and Brannon's first cause of action. In denying the
motion, I am nonetheless cognizant that, in the abstract, complaining to mine management about
an assault does not necessarily relate to complaining about a violation of a mandatory standard,
instituting and testifying in a proceeding brought under the Act, being the subject of medical
evaluations and potential transfer under a mandatory health standard, or to the exercise of any
other right specifically granted by the Act or to furthering the Act's purposes. However, without
hearing the evidence, I cannot rule out the fact that Brannon might be able to show that his
complaint about the assault is related to his espousal of a specific right afforded by the Act; or
that his complaint furthers rights guaranteed miners by the Actor furthers the Act's purposes. If
he can do any of these things, he will establish he engaged in protected activity when he
complained to management about the assault. Ifhe cannot, his assertion of protected activity
related to the assault complaint will fail. Trial of the issue is necessary.

31 FMSHRC 1538

THE STATE COURT SUIT
. AND
CONTACTING THE STATE AGENCY
In like manner, I conclude that while filing a civil suit in state court against a sister

company and its foreman based on an assault and seeking state disciplinary action against the
foreman because of the-assault - actions the company accepts as true - are not activities
specifically protected wider the Act, at trial Brannon might be able to show that filing the suit
against Salyer and Cloverlick and seeking state disciplinary action by the OMSL against Salyer
for the assault is related to Brannon's espousal of a specific right afforded by the Act; or,
alternatively, that filing the suit and seeking state discipline furthered rights guaranteed miners by
Act or otherwise furthered the Act's purposes. lfhe can do any of these things, he will
establish he engaged in protected activity when he complained to management about the assault.
If he cannot, his assertion of protected activity related to the assault and his complaint to OMSL
will fail. The issue must be tried before it can be properly decided.

the

In reaching this conclusion, I have fully considered the fact the Complainant brought suit

in a state court and complained to a state agency and have not found either way of proceeding to
run afoul of Brannon's claim of protected activity. It is not the venue that is determinative. It is
whether .the activity relates to an activity specifically protected by the Act; whether the activity,
r~lates to an, alleged violation of a mandatory safety o:i',health sta:mdar~ or .whether the activity..,.·
otherwise furthers rights guar.anteed miners by the· Act or furthers the Act's purposes. There is·:.
nothing novel or unprecedented in this conclusion. Commission judges long have held:that ·
otherwise protected activities does not lose Mine Act protection if it takes place in at a site not :
regulated or authorized by the Act. See;' .e.g.~ John3on vi'Boren; Jnc.:;3 FMSHRC 926, 933 (April ·.
· 1981) (Judge Lasher)(complaint to county health departmentprotected); see also; Response at 3~: ·

· n.2.
ADVERSE ACTIONS

While I agree with the company that section I 05(c) does not "address every slight or
negative action which can occur in the workplace'' (Motion at 6-7), I disagree that actions such as
"encouraging shunning" or "talk[ing] disparagingly'' necessarily fall outside of the Act's
parameters. Id. They might or they might not. Although there is some disagreement in the
federal circuits on this point, I concur with Brannon that the better view is, if the actions are
motivated by a complainant's protected activity, they can constitute prohibited behavior if they
subject a miner to a detriment in his or her employment relationship or if they chill the exercise
of protected rights by a reasonable complainant and/or by the complainant's reasonable coworkers. Resp. at 6-7 (and cases cited therein). As with determining protected activity, the
factual context within which the actions take place is vital. Therefore, on the basis of the present
record, it would be premature to rule the actions of which the company complains are outside the
boundaries of the Act.

31 FMSHRC 1539

ORDER

For all of these reasons, the company's motion for partial summary decision IS DENIED.

.P¢//d'r.:~
David F~ Barbour
Administrative law Judge

Distribution
MaryBeth Bemui, U.S. Department of Labor, Office of the Solictor, 618 Church Street; Suite
230, Nashville, TN 37219-2456
Tony Oppegard, Esq., P.O. Box 22446, Lexingto~ KY 40522
:"

. .. .. ;
_

...

,·

..

W<es Addingto~ Esq., ~ppalachian Citizens Law.Center,) 17 :Main Street, Whitesburg,. KY·
:41'858
.
.. . .
. .·

Stephen M. Hodges, Esq., Penn; Stuart & Eskridge; P. O.'Bo;ic2288, Abington, VA 24212

31 FMSHRC 1540

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N. W., SUITE 9500
WASHINGTON, D.C. 20001
(202) 434-9980
.

November 18, 2009
DISCRIMINATION PROCEEDING

BILLY BRANNON,
Complainant

Docket No. KENT 2009-302-D
BARB CD 2008-07

v.
PANTHER MJNING, LLC,
Respondent

No. l Mine
Mine ID 15-18198

BILLY BRANNON,

DISCRIMINATION PROCEEDING
Complainant
Docket No. KENT 2009-1225-D
BARB CD 2009-07

v.
PANTHER MINING, LLC and
MARKD. SHELTON, ,.....

; :, ·.; .. ': .. , '. .. ).lespopd~~(.-

. ..
~

":.

No. l Mine.
·:. ~. Mine
.ID 36-00017
'
'

SECRETARY OF LABOR,
· ~n bel:talf,of BILLY B:RANr"lON,
Cpmplajnant,. .

.

,

.

DISCRIMINATION PROCEEDING ..
Docket No. KENT 2009-1259-D
BARB CD 2009-09

v.
PANTHER MJNING, LLC,
Respondent

No.1 Mine
Mine ID 15-18198

ORDER GRANTING IN PART AND DENYING IN PART
COMPLAINANT'S MOTION TO COMPEL

In Docket No. KENT 2009-1225-D, the Complainant, Billy Brannon ("Brannon''), moves
to compel the Respondents, Panther Mining, LLC ("Panther'' or the "company'') and Mark D.
Shelton ("Shelton"), the superintendent of Panther's No. 1 mine, to answer Interrogatory 16 of
Brannon's 1st Set of Interrogatories and to provide the documents sought in Request No. 16 of
Brannon's 1st Request for Production of Documents. According to Brannon, Panther and Shelton
have improperly failed to identify and produce documents that may come within the
interrogatory.

31FMSHRC1541

Panther and Shelton objectto the interrogatory and request, and oppose the motion. They
state Brannon's use of discovery is too broad and for the most part it is not directed at issues in
the case. ·They also maintain they have already produced all documents relating to the allegations
at issue and they need not produce more. For the reasons that follow, the motion IS GRANTED
IN PART AND DENIED IN PART.
THE COMPLAINT

Docket No. KENT 2009-1225-D is a discrimination case based on a complaint brought
under section 1OS(c)(3) of the Mine Act by Brannon against Panther. The case has been
consolidated with two related proceedings: KENT 2009-302-D, another section 105(c)(3)
discrimination case brought by Brannon· against Panther; and KENT 2009-1259-D, a section
105(c)(2) discrimination case brought by the Secretary on behalf of Brannon against Panther. 1
The consolidated cases will be heard beginning on March 2, 2010.
In Docket No. KENT 2009-1225-D, Brannon lists as activities leading to his alleged
discriminatory treatment ~any of the activities set forth in his first filed complaint, Docket No.

KENT 2009-302-D. He asserts, as he did in his first complaint, that these activities are
"protected" under section 105(c) of the Act. What is new in DocketNo. KENT 2009-1225-:0 is
Brannon's assertion of additional discriminatory treatment at the hands of Panther and-Shelton.
. (Shelton was not named as a respondent irt the first;;.fil~d complaipt.) Brannon alleges that on'... ·.
. Saturday, February 28, 2009, he was underground when hew~ summoned to a meeting in . , ,..
. ·-Shelton's surface office. Those present were Shelton, the rest of the underground crew and . ',
.. others from mine management.·. Complaint at ft 18, 19; Brannon asserts he was the ''main'· .•. ·
subject" of the meeting,·and that during the meeting Shelton told Brannon that Brannon was ... ·
"corrupting'' the shift and the mine, that he·was not doing his job satisfactorily and that he was
the cause of all of the mine's problems. Id. at, 20. Brannon also asserts Shelton "cussed" him,
threatened to fire him, gave him a written warning about his alleged unsatisfactory job
performance and transferred him to the second shift effective the next Monday, March 2, 2009.
Id. at , 21. Brannon quotes Shelton as telling him in effect that he would never return to the day
shift because he was suing the company[2], and that from March 2 on, he would always work on .
the second shift. 3 Finally, Brannon quotes Shelton as telling him that Shelton knew that Brannon
had spoken with an MSHA inspector on the evening of February 27, and that he also knew

1

Docket No. KENT 2009-1225-D is the second-filed of the three cases.

2

Brannon previously filed a civil suit against a sister company of Panther's (Cloverlick
Coal Company) and a Cloverlick supervisor (Robert Salyer) over Salyer's alleged assault on
Brannon at the Cloverlick mine where Brannon then worked. See Docket No. KENT 2009-302D, Complaint at ft 6, 9.
3

According to Brannon, Shelton knew that Brannon preferred to work on the first shift
and considered second shift hours to be less desirable. Complaint at 7.
31 FMSHRC 1542

Brannon was related to the inspector. Of the inspector, Shelton allegedly said, "I can't stand the
ground he walks on either.'..i Id. at, 22.
The discriminatory actions to which Brannon charges he was subjected because of his
alleged protected activities are the ''verbal abuse" and ''threats" he received from Shelton on
February 28 (Complaint, 1st Cause of Action at, 24); the ''written warning" he received from
Panther and Shelton on-February 28 (Id.; 2nd Cause of Action at 1 26); and his transfer to the
second shift effective March 3, 2009. Id.; 3ro Cause of Action at 128.
INTERROGATORY, REOUEST, AND ANSWER .

Interrogatozy 16. With the exception of"the·Shelton meeting," please· state whether any
Panther ... employees made any contemporaneous or non-contemporaneous notes regarding
Brannon's job performance or non-contemporaneous notes regarding Brannon's job performance
or any other event involving Brannon at the No. 1 mine prior to February 28, 2009.
If the answer to this interrogatory is "yes,'' please see Request [No.] 16 in Brannon's 1st
Request for production of Documents. Motion at 1-2.

_, . Answer.', Objection to the.part'of the interrogatory.addressing '"any other event at the No~..
1 rriine·prior to February 28~ ·2009" '.as vague,. overbroad,arufoot re38911al>ly calculated to '.lead to· ~
admissible· evidence. Without waiving its objection Panther states that notes concerning'. . :''
Bra1lnon's job performance were made on some occasions. ·Motion ~t 2..
·,
'.

·.. · Request No. 16. With the exception.of notes regarding ''the Shelton meeting,'' copies of
· any and all contemporaneous or non-contemporaneous notes~·inade by any Panther employee·
prior to February28, 2009, regarding Brannon'sjob-performance or any other event involving
Brannon at the No. 1 mine. Motion at 2
Answer. Objection as to "any other event involving Brannon at the No. 1 mine" as overly
broad, unduly burdensome and not reasonably calculated to lead to admissible evidence. Further
objected to ... the extent it would include communications between Panther's managers and
their attorney. Further, this request overlaps with other requests. Without waiving its objection,
Panther is providing herewith notes made by Panther's employees prior to February 28 ...
regarding Brannon's job performance as documents 000801-000836. Motion at 2-3.

4

Brannon maintains that on February 27, he went to the MSHA office in Harlan,
Kentucky, to file a discrimination complaint with MSHA, and while at the office he spoke with
an MSHA inspector for about one half hour. The alleged topic of their discussion was ''various
unsafe conditions" at the mine. Complaint at -ii 16.
31 FMSHRC 1543

ARGUMENTS

Brannon states that upon receipt of the company's answer to the interrogatory, his
attorney "e-mailed" the attorney for Panther and Shelton and asked that his clients answer the
interrogatory a:nd provide all of the requested documents or "at least state the specific nature of
the documents that you are withholding." Motion at 3. When the company's and Shelton's
attorney did not respond by the date Brannon's attorney specified, Brannon filed the motion to
compel.
Brannon argues it is relevant whether the company and/or its employees were keeping
notes about Brannon - regardless of whether or not they were job-related- prior to the date of the
February 28 meeting. According to Brannon, he is "entitled to know whether Panther was
'building a case' against him in order to discharge him." Motion at 4. Brannon states he "would
want to further delve into why employees were keeping notes about him (and at whose
instruction)." Id. He also asserts he is entitled to know whether the company was keeping notes
about other employees - or whether Brannon was being singled out for this treatment. Id.
--

The company and Shelton argue. the motion should be denied. They object to answering
the parts of the interrogatory and request relating to "any other event involving Brannon at the
No. 1 mine;'~ ·Interrogatory 16.. They point out that nowhere·-in l:rls complaint does Brannon . ·,, ·
assert he w.a$:diseriminated against by having notes taken about: him :byPanther1mployees. By .
asking for-.notes taken by anyone at the mine at any time prior to ·February 28, on any subject · -.. ·
involving Brannon, the Complainant is· casting a "dragnet"that would include things beyond the ·
scope of the complaint, which is about Brannon being ''written up" and transferred after the
February 28.meeting. Opposition to .Motion at J.-4> Finally, the company notes it already has
provided Brannon with 48 pages of notes taken.by various .employees concerning Brannon's job
performance. Id. at 5.
RULING

Interrogatories must be reasonably related to the issues at hand. The issues as set forth
by Brannon are whether he was discriminated against when he was "verbally abused and
threatened" by Shelton at the February 28 meeting, was issued a ''written warning" by Panther
and Shelton, and was transferred to the second shift (a less desirable shift that Brannon did not
want) all because of his alleged protected activities. A topic discussed at the February 28
meeting was Brannon's allegedly unsatisfactory job performance. One result of the meeting was_
a written warning issued to Brannon by Shelton about Brannon's performance. It is clear that
Brannon's work performance and the company's and Shelton's perception of it are at issue in
Docket No. KENT 2009-1225-D. To the extent the interrogatory asks the company and Shelton
to identify and produce employees' notes referring to Brannon's work performance before
February 28, 2009, the interrogatory is proper and must be answered. Further, any written notes
identified in response to the interrogatory must be produced pursuant to Request 16.

31 FMSHRC 1544

Therefore, within 15 days of the date of this Order, notes made by Panther's employees
relating to Brannon's job performance that the company and/or Shelton have MUST be
described by the company for Brannon. Pursuant to Request 16, copies of the described notes
MUST be produced to Brannon. If the company already has described. and turned over all of said
notes, it may comply with the interrogatory and request by stating as much.

If there are not~ made by company employees that relate to Brannon's pre-February 28
job performance that the company claims are exempt from production because they are
privileged, within 15 days of the date of this Order the company MUST identify the notes and
submit copies to me for my review and state the grounds on which the company is claiming
exemption from production. After reviewing the notes and considering the grounds, I will· rule as
to whether or not the notes are subject to production. Any copies that I conclude are protected
from production, I will place under seal in the record, where they will be subject to review by
only the Cariunission or another reviewing body.

As for the part of Interrogatory 16 that asks the company to state whether its employees
made notes as to "any other event involving Brannon at the No. 1 mine prior to February 28,
2009" .and the part of Request 16 that asks the company to produce any such notes, the Motion to
Compel IS DENIED. The interrogatory andxequest are not targeted at issues alleged by
..'·
,Brannon in his complaint and, thus, are not reasonably related to the--complaint. The .company is
"right to describe the interrogatory. and'.tequest as "ov.erb~.c.t", 'Oppositioti-to Motio'tf at 3~ I
';agree With the company that Brannon should nofbe allowed to lise discovery as a ~'dragnet" (Id.)
·to obtain every note in the company's and Shelton's .possession relating to: "any other event
. involving Brannon~" Interrogatory 16~: Were· such discovery allowed, the case would soon be
·UI1IDanageable.
' · ·• ; · · · ~' ·
'

:

·l ~

••

":

The company IS ORDERED to respond to futerrogatory 16 and Request 16 ONLY as
. set forth above.

David F~ Barbour
Administrative law Judge

31 FMSHRC 1545

Distribution: (Certified Mail)
MaryBeth Bemui, U.S. Department ofLab~r, Office of the Solicitor, 618 Church Street, Suite
230, Nashville, TN 37219-2456
Tony Oppegard, Esq., P .0. Box 22446, Lexington, KY 40522
Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY
41858
Stephen M. Hodges, Esq., Penn, Stuart & Eskridge, P. 0. Box 2288, Abington, VA 24212

/ej

31 FMSHRC 1546

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 1s1" S~ Suite 443
Denver, CO 80202-2500
303-844-3577/FAX 303-844-5268

December 2, 2009
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 2008-201-M
A.C. No. 42-02159-130699

v.
. Mine: SR9/ Harrisburg Pit

GILBERT DEVELOPMENT CORP.,
Respondent

ORDER DENYING RESPONDENT'S MOTION TO REOPEN RECORD
TO SUBMIT WITNESSES TO POLYGRAPH EXAMINATION
Respondent filed a·motion to reopen the record in this proceeding for the limited purpose
of subjecting several fact witnesses to a polygraph examination. It states that it filed the motion
because there were so many conflicting facts· presented at the hearing.. The Secretary opposes the
motion because neither the Commission's procedural rules nor
Federat Rules of Civil .. ·
Procedure sanction the mtroduction of post-trial evidence to bolsfer wttitess credibilify. ··Iii · .
addition, she argues that Respondent did not set forth
spedat circumstances that would
justify the use of polygraph testing. For the reasons discussed.below, I deny Respondent's
motion.
·
.·
.

the

any

Commission Procedural Rule 55 empowers Commissionjlidges to, among other things;
regulate the course of hearings, rule on offers of proof and receive relevant evidence, and dispose
of procedural motions. 29 C.F.R. § 2700.55. This authority can be used, in appropriate
circumstances, to reopen the record for the submission of new evidence.
The Commission addressed a motion to reopen the record in Kerr-McGee Coal Corp., 15
FMSHRC 352 (March 1993). In that case, the mine operator sought Commission review ofa
judge's order denying the operator's motion to reopen the record. Relying on Rule 59 of the
Federal Rules of Civil Procedure, the judge denied the motion. On review, the Commission held
that the decision to grant or deny a motion to reopen is "committed to the sound discretion of the
trialjudge." 15 FMSHRC at 357. The Commission affirmed the judge's decision and set forth
three factors that should be considered. These factors are: (1) the timeliness of the motion; (2)
the character of the newly proffered evidence; and (3) the effect of granting the motion. Id. See
also, Meek v. Essroc Corp. 15 FMSHRC 606, 614 (April 1993).
Although the motion in this case was filed soon after the close of the hearing, I find that,
based on the character of the newly proffered evidence, the motion should be denied. Four
witnesses testified for each party. Both parties were given the opportunity to cross-examine the
31FMSHRC1547

opposition's witnesses and to test their credibility. Commission administrative law judges act as
the finders of fact in Commission proceedings and, in doing so, make necessary credibility
determinations. The judge in this case is charged with making these determinations based on his
observations of the witnesses and the testimony presented. The Supreme Court, in United States
v. Scheffer, questioned the reliability of polygraph evidence. 523 U.S. 303, 309 (1998). In
addition, federal courts have expressed their disfavor of the use of polygraph evidence. See, e.g.,
United States v. Swazye, 378 F.3d 834, 837 (8th Cir. 2004) (The court stated that "[w]hen two
witnesses contradict each other, juries, not polygraph tests, determine who is testifying
truthfully."). Judges act as juries in Commission proceedings. Conducting polygraph tests
would "interfere with the [judge's] role in making credibility determinations" and has the
potential to raise collateral issues.- SEC v, .((opsky, 586 F. Supp. 2d 1077, 1080 (E.D. Mo.)
'ccitiilg the opinion of four justices in Scheffer, 523 U.S. at 313-315). The effect of granting the
motion would -be to further delay the proceedings to allow for the submission of p0lygraph
evidence. This evidence would be of little value, given the unreliability of polygraph tests, and
would conflict with and add confusion to credibility determinations made by the judge.
For the reasons set forth above, the motion to reopen is DENIED.

Richard W. Mannfug
Administrative Law Judge

Distribution:
Jennifer A. Casey, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202
Bryan J. Pattison, Esq., Durham, Jones & Pinegar, P.C., 192 East 200 North, Third Floor, St.
George, UT 84770
RWM

31 FMSHRC 1548

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
U.S. CUSTOM HOUSE
721 19TH STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5267/FAX 303-844-5268

December 3, 2009
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 2008-479
A.C. No. 12-02147-150573

. v.

BLACK BEAUTY COAL COMPANY,
Respondent

Mine: Francisco

DECISION DENYING MOTION TO APPROVESETTLEMENT
···;

Before:

'

Judge Miller

1bis case is before me upon a petition for assessment ofcivil penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the ~'Acf'). .
The Secretary of Labor ("Secretary'') filed a motion to approve settlement. The case involves : ·
twelve citations issued under section 104(a) of the Act with a total penalty assessed at $104,464.
In denying the Secretary's request to settle this matter, I take into consideration the enormous
volume of cases pending and the pressure on the CLR's to settle cases and move them along.
However, I have signed off on a number of settlements with this particular mine operator in the
past few weeks and did so reluctantly on many of them for that reason. The settlements have
given more .tht,m. generous reductions in penalties and modifications of citations with little
explanation.
I conclude that the reduced penalties proposed by the Secretary against Black Beauty

Coal Company (''Black Beauty'') would not adequately effectuate ''the deterrent" purpose
underlying the Act's penalty assessment scheme. Sellersburg Stone Co., 5 FMSHRC 287, 294
(Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984). I reach this decision based upon my
conclusion that the penalties proposed by the Secretary are greater than an 800.lct reduction of the
original penalties and such a reduction encourages mine operators to contest the penalties in the
hope of receiving such a reduction. The fact that a mine operator can obtain such a drastic
reduction does not encourage the mine to comply with.the requirements of the Act.

31FMSHRC1549

The principles governing the authority of Commission Administrative Law Judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 11 O(i)
of the Mine Act delegates to the Commission and its judges "authority to assess all civil
penalties provided in [the] Act." 30 U.S.C. § 820(i). The Act delegates the duty of proposing
penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess
the penalty. 29 C.F.R,_ § 2700.28. The Act requires, that "in assessing civil monetary penalties,
the Commission [AI.J] shall consider" six statutory penalty criteria:
·
[ 1] the operator's history of previous violations, [2] the appropriateness of such
penalty to the size of the business of the operator charged, [3] whether the
operator was negligent, [4] the effect on the operator's ability to continue in
business, [5] the gravity of the violation, and [6] the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation.

·· ·

30 u.s.c. § 820(i).
In keeping with this statutory requirement, the Commission has held that "findings of
fact ontµe statutory peilaltycriteria must be made" by itsj~dges. ·Sellersburg Stone Cq., 5 .
FMSHRC at 292. Once findings on.the statutory criteria ha\Tebeen made,. a judge'.s penalty :.· ..
assessment for a particular violation is an exercise of discretion, which is bowided by proper -·'. ;.,·
·consideration of the statutory critetla and the deterrentpurposes (}ftJieAct. Id. at294; Cantera ·
Green, 22. f'MSHRC 616, 620 (May 2000). In exercising this discretion, the Commission has ,
· teeeritly ~Iterated that in determining the amount of a p·enalty, a]udge is not bound by the ·· ~ .. . .
,-peil~lfyrecommended bytbe Secretary. Spartan Mining.Co., 30FMSHRC 699, 723 (Aug. · >
. 200_8). · The Colnmission also emphasized that when penalty determination "substanti~lly •·
. diverge[s] from those originally proposed, it behooves the ... judge[] to provide a sufficient
explanation of the bases underlying the penalties assessed. Id. The Commission warned in
Sellersburg that without an explanation for such a divergence, the ~'credibility of the
administrative scheme providing for the increase or lowering of penalties after contest may be
jeopardized by an appearance of arbitrariness." 5 FMSHR.C at 293. The information provided
by the Secretary in this case does not allow me to provide a sufficient explanation for the penalty
reduction.

a

The Secretary's representative in this case has proposed to modify six of the twelve
citations to non-S&S violations, to vacate two citations, and to modify the gravity of citations.
The operator has agreed to pay one violation as issued. The overall proposal calls for a
reduction in the penalty from $104,464 to $20,394. On the penalty amount issue alone this
proposal is not appropriate. In addition to the total penalty I also base my decision on the lack of
factual bases to modify six violations to non-S&S and modify the gravity of three others. The
Secretary included in its proposal that the Francisco mine had "28 previous violations in the 15
month period preceding these violations" and that the payment of $20,394 will not affect the
mine's ability to continue in business. While I can accept the stipulation regarding the mine's
ability to pay, the history of violations was not included and was in error. First, the history
31FMSHRC1550

included only 15 months, and, second, it did not take into consideration the more than 25
violations issued between the date of the first citation in this docket and the date of the most
recent citation.
Citation No. 6672623 charges a violation of§ 77.502 of the Secretary's regulations
because the "outer insulation on the cord that supplies 110 V.A.C power to the shop lighthas a
cut/tear exposing the b@,fe inner conductor leads in one location. The shop light was in service in
the train load out facility." The inspector determined that the violation was S&S, marked the
gravity as ''reasonably likely" to result in a "fatal" irijury, and found moderate negligence. The
Secretary proposes to modify the violation to non-S&S and reduce the penalty from $13,268 to
$807 because the electrical circuit was protected with a ground fault circuit interrupter breaker.
A number of cases-have found similar violations to be significant and substantial. Ely Fuel Coal
Co., 13 FMSHRC 488 (Mar. 1991)(AU)(An admitted violation of§ 77.502-2 for failure to·
conduct a monthly examination of electrical equipment was S&S because serious injuries can
occur from malfunctioning electrical equipment.); Laurel Run Mining Co., 11 FMSHRC 1815
(Sept. 1989)(AU)(Violation of§ 77.502 was significant and substantial because of risk of
electrical malfunctions.).
Citation No. 4263736 charges a violation of§ 77.1606(c) because the "No.303--013
Driltech drillbeing used in the No. 4 pit was not being maintained ina safe condition. When ..
inspected the :<>ffside camera was found defective, preventing the operator from seemg anything
along the offside 'area of the drill." The-inspector determined thatthe violation was S&S~ .! ·. . ·
marked the gravity as ''reasonably likely'; to result in. "lost workdays," and found mOderate ·
negligence;. The Secretary proposes to modify :the violation to non·S&S, With low negligence.
and reducb the penalty from $3,143 to $28$. The Secretary states that even with .the inopCrable-i .
camera, the operator had useable mirrors.and an ·audible warning system· to prevent an .a~ideilt. '·
A number of deeisions have deemed a violation ofthis standard to be significant and substantial~
S&M Construction Inc., 19 FMSHRC 566 (Mar. 1997)(ALT XAn area ofmissing tread on the rear
tire of a trailer attached to a truck was an S&S and "tmwammtable" vioJation of§ 77.1606(c).); Quarto·
Mining Co., 15 FMSHRC 1311 (June 1993)(AU). rev. denied (July 16, 1993)(Malfunctioning
steering wheel was an S&S violation of§ 77.1606(c).); Triple B Corp., 8 FMSHRC 833 (May
l 986)(AU)(Citation for violation of §7 7 .1606(c) due to cracked rear view mirror and excessive
play in mine truck's steering system was found to be significant and substantial because cracked
mirrors could cause driver to back into pedestrians or over highwall, and steering defect made it
extremely difficult to handle truck; both violations were reasonably likely to cause serious or
fatal injuries.).
Citation No. 6672625 charges a violation of§ 77.1104 because "accumulations of
combustible material in the form of oil and oil soaked fines was allowed to accumulate on the
Taylor fork truck 450 Co. #320-036. These accumulations ranged in depth from 1/8" to 1/4"
approximately. Engine oil was leaking out of the valve cover gasket area and running on the
exhaust manifold and down the side of the engine block to the belly pan." The inspector
determined that the violation was S&S, marked the gravity as ''reasonably likely'' to result in
"lost workdays," and found moderate negligence. The Secretary has proposed to modify the ·
citation to non-S&S and reduce the penalty from $3, 143 to $634 because if a fire were to occur,
31FMSHRC1551

the operator could easily stop and exit the equipment. Accumulation violations may potentially
be detennined to be significant and su'6stantial. Little Sandy Coat Co., 17 FMSHRC 1638
(l 995)(ALJ). (A surface coal mine operator's admitted violation of combustible materials
standard, § 77 .1104, was S&S. An inspector observed several leaks in the hydraulic system of a
Hitachi shovel used to load overburden into haulage trucks, and also observed pools of oil under
and around the operator's cab and oil on the equipment's frame. There was a reasonable
likelihood of an ignitiQn of the "extensive" accumulations of oil and grease.).
Citation No. 6672746 charges a violation of § 77.1711 and states "[n]o person shall
smoke or use an open flame where such practice may cause a fire or explosion. A miner was
observed smoking in the immediate area of flammable and combustible material located on the
·company grease truck" The items on the grease truck included starting fluid, kerosene~ grease~
oil and fuel soaked rags, and other oils. The fuel truck was within 30 feet of the grease truck and
bothwere servicing a dozer. The inspector detennined that the violation was s&s; marked the .
gravity as "highly likely" to result in a "fatal" injury, and found high negligence. The Secretary
has proposed to modify the citation to non-S&S with moderate negligence and reduce the
penalty from $42,944 to $362, because it is not likely that the combustible materials would be
ignited by someone smoking next to the vehicle. The Secretary proposes to reduce the
negligence because management was not aware of the violation. The reduction in penalty is
extreme, as is the modification from S&S to a non-S&S vfolation without some· further:,
,;,·:
· · explanation regarding the facts and the. factual basis for making such modification. . . . . . · .
.·J .:.' ~

·Citation No. 6672771 charges .a violatioirof§ 7J.205(b) because the travelwayin the
conveyor fail tunnel was strewn with debris creatingatrip hazard near the belt and rollers. The .
.in5pectordetermiiled that the violation.was S&S~ markCd,the gravity ·as ''reasoiiablyJikely'r. to , ·..
.· result in "lostworkdays," and found moderate negligence... The Secretary proposes to m.ooify the,
violation to non•S&S with a reduction in penalty from $3,996 to $807 because the "single
obstacle could be easily .recognized and avoided."· Travelways can be particularly hazardous in·
mining conditions, and violations of regulations pertaining to them have often been found to be
significant and substantial. Summit Anthracite Inc., 29 FMSHRC 1062 (Nov. 2007)(AU)(An
operator committed an S&S violation of§ 77 .205(b), for failing to keep a travelway clear of
stumbling hazards in the generator building.);· Cyprus Emerald Resources Corp., 11 FMSHRC
2750 (Dec. 1989)(AU)(Where coal refuse and hoses were found in preparation plant and refuse
bin building walkways which provided access to areas where persons were required to work or
travel, a S&S violation of §77.205(b) occurred.); Consolidation Coal Co., 8 FMSHRC 1735
(Nov. 1986}(AIJ)(Obvious, long-term accumulation of slurry and water on floor of slurry pump
house where miners were required to work caused slipping hazard, is significant and substantial
violation of§ 77.205(b}, and was due to unwarrantable failure of operation to comply with
standard.); J.A.D. Coal Co., 7 FMSHRC 733 (May 1985)(AU)(Violation of§ 77.205(b) was the
result of high negligence because travelway leading to head roller of belt was covered
completely with loose coal and it appeared that coal accumulations had been present for several
days. The violation was serious because it exposed employees to fall hazard which could have
resulted in serious injury or death.).

31 FMSHRC 1552

·.·

Citation No. 6672786 charges a violation of§ 77. l 608(b) because the spoil dump site
near the employee parking lot "has an extensive cracking." The cracks measure up to 18 inches
wide by 27 inches deep, for a distance of approximately 200 feet. The inspector observed a
dump truck back up between the crack and the face of the dump site. There was the potential for
a failure of the ground to support the weight of the dump truck. The inspector determined that
the violation was S&S, marked the gravity as ''reasonably likely'' to result in a "fatal" injury, and
found moderate neglig~ce. The Secretary proposes to modify the citation to non-S&S with a
reduction in penalty from $3,405 to $207 because the condition was "not likely to result in an
accident considering the size and location of the crack in relation to the size and location of the
highwall." The decisions bear out the fact that spoil dumps with cracks may well be cited as
significantand substantial. Kerry Coal Co. ., 17 FMSHRC 2110 (Nov. 1995)(AIJ)(A surf~e
coal mine operator committed an S&S:violation of§ 77.1:002;'-which requires "necessary , · · . . .
precautions" to minimize the possibility of spoil material rolling into the pit when box cuts are
made. The unstable condition of the cited spoil banks showed that the operator had not taken
')iecessary precautions," and falling material inCluded two- to three-foot rocks. The company's
MSHA-approved ground control limit on the angle of spoil banks was clearly a "precaution" the
company was required to observe under § 77.1002, and the inspector testified the ·spoil banks
were not sloped at a 60-degree angle as required by the plan, but were cut close to a 90-degree
angle. The violation was S&S because a front-end loader was operating under one spoil bank as
.roeks and other material fell near the machine. The violation also ·resulted from high negligence
· because the company knew.or :should have known of the -sloping·requirements and the; ·/ . .. . . .,·.
"dangerous angle of the walls was obvious."); Cyprus Emerald Resources Corp., 20 ·FMSHRC · ..
79fi (Aug. :1998), aff'g in part; vacating and remanding in part, andtev 'g in·part 17 'FMSHRC
2086 (Nov. 1995)(ALJ)(An operator committed an S&S violation.of§ 77.1608(b) in.connection .
· with an April 1993 refuse pile collapse, based .on. photographs· showing tire 'tracks •going.to the. .. · .
edge ofthe:area that broke away and the testimony of atmck driver.); Bobet Mining~
' ·
Construction Co., TFMSHRC 1175 (Aug. 1985)(AIJ)(Operator committed anS&S Violation;of
§ 77 .1608 where inspector observed truck dumping too close to edge of embankment in presence
of foreman. The haZard was reasonably likely to cause serious injury and the foreman's failure
to abate hazard demonstrated serious lack of reasonable care.); Zapata Coal Corp., 6 FMSHRC
2639 (Nov. 1984)(ALJ)(Dumping of coal 30 feet beyond edge of high wall is significant and
substantial violation of§ 77.1608(b) requirement that dumping occur at safe distance back from
edge of bank which may fail to support truck weight.).
The Secretary has not provided sufficient information to determine if the six citations
listed above should be modified to non-S&S violations. A significant and substantial violation is
described in section 104(d)(l) of the Act as a violation "of such nature as could significantly and
substantially contribute to the cause and effect of a coal or other mine safety or health hazard."
30 U.S.C. § 814(d)(l). A violation is properly designated S&S "if, based upon the particular
facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed
to will result in an injury or illness of a reasonably serious nature." Cement Div., Nat 'l Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:

31FMSHRC1553

In order to establish that a violation of a mandatory safety standard is significant

and substantial under National Gypsum, the Secretary of Labor must prove: (1)
the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to safety--contributed to by the violation; (3)
a reasonable likelihood that the hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in question will be of a reasonably
serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861F.2d99,
103-04 (5th Cir. 1988), ajfg Austin Power, Inc., 9 FMSHRC 2015, 2021(Dec.1987)(approving
Mathie3'Criteria).
·
· ··
· <· ·· ·
In U.S. Steel Mining Co., Inc., the Commission provided additional guidance:

We have explained further that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." U.S. Steel Mining Co., Inc.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
,with the language of section 104(d)(l ), it is the contribution of a Violation to the
cause and effect of a hazard. that must be significant and ·substantial. U.S~ Steel •·
·Min~ng:Co., Inc., 6FMSHRC·1866',..1868'{August 1984); .US. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984). .
. '· .
. ·: :

. .

' :~

7- FMSHRC 1125,· 1129 (Aug;.1985)~
'. ( r:~ ·~;

. " ' ._

,;;., ..

!

'··-:

c

This evaluation is made in consideration ofthe length of time· that the violative condition, · ·...
existed prior to the citation and the time it would have existedifnormal mining operations had
continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 6
FMSHRC at 1574.
In the Motion to Approve Settlement the Secretary does not state a factual basis for

concluding that the alleged violation did not present a substantial possibility of resulting in
injury within the context of continued normal mining operations. For example, in the electrical
violations listed above, the Secretary does not present a factual bases to show that there was not
a possibility that a miner would suffer electric shock if the condition continued as it was found.
Similarly, in Citation 6672746 the Secretary did not provide a bases to understand why it is
believed that someone smoking in an area where flammable or combustible materials were, does
not present a possibility of a fire or explosion and of someone being injured as a result. There is
no basis presented to reduce the original penalty for this citation from $42,944 to $362. The
Secretary gives me little information to believe that an accident will not occur as alleged in
Citation No. 6672786. The same is true of each violation that is proposed to be modified to nonS&S.

31FMSHRC1554

Citation No. 6672765 charges a violation of§ 77.210(b) because a delivery driver was
observed standing in.the bed of a pickUp ttuck while a miner was hoisting a 1100 pound load
from the bed of the pickup. The driver had both hands on the load and no tag-line in place as the
load was removed from the bed. The inspector determined that the violation was S&S and
marked the gravity as "reasonably likely'' to result in a "fatal" injury. The Secretary has
proposed to modify the violation to ''permanently disabling" with a reduction in penalty from
$3,996 to $1,795. The.reason given is that the injuries would not be fatal due to the position
while the load was being moved.
Citation No. 6672787 charges a violation of§ 77.1608(e) because no berm, backstop or
spotter was in place at the spoil dumpsite. The inspector determined that the violation was S&S,
marked the gravity as; ''reasonably likely" to resUJ.t-in "fatal" injuries, and found moderate ·
negligence. The Secretary proposes to modify the violation to "lost work day'' with a reduction
in penalty from $3,405 to $1,026 because the truck would "have gotten stuck in the soft dump
site material before it could have backed off the highwall."
Citation No. 6672772 charges a violation of§ 77.502 because an electrical box. "[was]
not being maintained in safe condition." When the electrician opened the box, water poured out,
and it was seen that water and coal dust had accumulated inside the box where energized wires
were spliced. The inspector determined that.the violation was S&S, marked the· gravity as.
"reasonably likely" to result in a "fatal" injmy; and found '.t_noderate negligence; . The Secretary
proposes to,modifythe citation to "lostworkdays~twith areduction·inpenalty from $3,996 to·:.· ...
$1,203 because several safety features would have to fail-before a miner would be fatally··
injured.
. ··'.,;

"!' . . . '.:

. . . .. ~ .:· ,

The above three citations are proposed to be;change<Lbymodifying·the gravity ftom"fatal ·.
to some other designation without providing a basis for doing so. The facts as. set forth in the ,
citations provide·a basis for designating the·injuries as fatal on their face. The Secretary has not
provided sufficient information to prove otherwise.
The two citations that are proposed to be vacated are Citation No. 6672747 for a grease
truck with flammable materials stored without a proper warning sign, and Citation No..6672749
for lack of task training of the miner who was caught smoking near eombustible material. The
Secretary vacated these citations because ''the cited condition was not found to be a violation of
any applicable standard."

31FMSHRC1555

I have considered the representations and documentation submitted and I conclude that
the proposed settlement is not appropriate under the criteria set forth in section 11 O(i) of the Act.
The motion to approve settlement is DENIED.

;

Distributio:ii:~

·

....

•··•

f, ...

> ;' • ' .••

'

.

•J'

Edward Ritchie, Conference and Litigation Representative, Mine Safety and Health
Administration, U.S. Department of Labor, 2300 Willow-Street, Suite 200,Vincennes,IN 47591
,Chad Barras, Midwest Safety Director, Black Beauty Coal Company; 7100 Eagle Crest Blvd,
Suite 100, Evansville, IN 47715
/ate

31FMSHRC1556

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001

December 18, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION(MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 2009-273-M
A. C. No. 36-09655-170239-02

v.
Mine: Buckhorn
LITTS & SON STONE COMPANY,·
Respondent

ORDER GRANTING SECRETARY'S MOTION TO DISMISS COUNTERCLAIM
This case c~ncerns a proposal for assessment of civil· penalty filed pursuant to
Section 105(d) of the Federal Mine Safety and Health Act of 1977 (''the Act''), 30 U.S.C. §
815(d), seeking a civil penalty assessment for 13 alleged violations of mandatory safety
standards :found in Parts 47 and 5(j, Title 30, Code of Federal Regulations. The Secretary filed··
the Petition for Assessment of Civil Pellalty on February 19~ 2009, and the Respondent ansW'ered . :
and asserted a counterclaim ·on March· 19~ 2009. The Seeretary has filed a motion to .dismiss the
Respondent's counterclaim.
The respondent alleges thdt•it.has been the victini of a senes of retaliatory and/or.
vindictive actions since the spring a.,nd SU11liner ·of 2008 by MSHA inspectors, in violation of the:
First Amendment fo the Con8tltutlori.. Answer al 6. 'In the Secretary's motion, she moves that
the counterclaim be dismissed. She asserts the Commission does not have jurisdiction to decide
the issue, or, if it does, that the Respondent has failed to state a cognizable cause of action.
Motion at 3.
In ruling on the Secretary's motion, it is important to first identify the relief the
Respondent seeks. The Respondent argues that because employees of the agency created by the
Act (MSHA) deprived the company of the full exercise of the company's First Amendment
rights, I should enjoin the agency "from taking further vindictive retaliatory actions against [the
Respondent]" and direct MSHA to assign "a fair and impartial inspector ... to [the
Repsondent' s] facilities." Answer at 6-7. I cannot fulfill these requests. As counsel for the
Secretary rightly points out, my jurisdiction is restricted to that which is granted by the Act.
Motion at 2. Administrative agencies such as the Commission have only the jurisdiction that
Congress gives. This core principle of administrative law has long been recognized as
applicable to the Commission and its judges. Kaiser Coal Corp., I 0 FMSHRC 1165, 1169
{September 1988). While the Act establishes specific enforcement proceedings, contest
proceedings and other forms of action over which the Commission presides, nowhere does it
grant to the Commission and its judges the authority to rule on and to direct MSHA's internal
31FMSHRC1557

personnel policies and practices. Because there is no way under the Act that I can grant what the
Respondent asks, the counterclaim must be dismissed. See Agronics, Inc., CENT 98-151-M
(Order Denying Motion to Distlliss and Remand) (August 21, 1998) (Chief ALJ Merlin)
(unpublished). This is not to say the Respondent is without a remedy. 1 It is simply to say that
the remedy it seeks is not available before the Commission. Accordingly, the Secretary's
Motion to Dismiss Alleged Counterclaim IS GRANTED, and the parties are directed to comply
with the Order to Confer and Report dated November S, 2009.

J)t;V;tf f. ~
David F. Barbour
Administrative Law Judge

Distribution:
Jodeen Hobbs, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, Suite
630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
John G. Dean, Esq., Elliott, Greenleaf &·Dean, 201 Penn Av:enue, Suite 202, Scranton, PA
18503.

/ej

1

A long line of cases recognizes a right of action in the federal courts for damages when .
agents of the government abridge constitutional rights. See, e.g. Bivens v. Six Narcotic Agents,
403 U.S. 388 (1971) (and cases arising thereunder).
31FMSHRC1558

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19™ sTReer. SUITE 443

DENVER, CO 80202-2500
303-844-35n/FAX 303-844-5268

December 10, 2009
CONTEST PROCEEDING

MOUNTAIN COAL COMPANY, LLC,
Contestant

Docket No. WEST 2007-409-R
Citation No. 7291353; 3/26/2007

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

West Elk Mine
Mine Id. 05-03672

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 2008-129
A.C. No. 05-03672-128598

v.

.·

West Elk Mine· .

MOUNTAIN COAL COMPANY, LLC,
Respondent

ORDER CORRECTING CLERICAL .ERROR IN DECISION
On October 16, 2009, I issued a decision on the merits in these cases. (31 FMSHRC
1220). In the decision, I held that the Secretary established a violation of section 75.1725(a), as
alleged in Citation No. 7291353, but I determined that the Secretary did not establish that the
violation was of a significant and substantial nature (''S&S").
The Secretary has filed a motion to correct a clerical error in the decision. She moves that
the decision be amended to reflect the fact that, at the start of the hearing, she agreed to amend
the citation to delete the S&S determination. (Tr. 7). She asks that my discussion of the S&S
issue on page 19 of the decision be modified to reflect her concession that the citation was not
S&S. (31 FMSHRC 1238). In response to the motion, Mountain Coal stated that it did not
object to the motion but asked that the amended decision include my discussion of the gravity
criterion and some of the S&S discussion. The Secretary does not object to this request.

31 FMSHRC 1559

For good cause shown, the motion is GRANTED, in accordance with the authority
vested tome under 29 C.F.R. §2700.69(c). Page 19 of my October 16, 2009, decision (31
FMSHRC 1238) is STRICKEN :from the decision and is replaced by.the modified page attached
to this order. In all other respects, the decision in these cases remains unchanged.

Richard w. Manning

Administrative Law Judge

Distribution:

Laura E.. Beverage, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 802021958
Mary Forrest-Doyle, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Boulevard, 22nc1 Floor, Arlington, VA 22209
RWM

31 FMSHRC 1560

MOUNTAIN COAL COMPANY, WEST 2007-409-R & WEST 2008-129
This page replaces page 19 of the decision issued by Judge Manning on October 16, 2009
31FMSHRC1220, 1238

hose replacement policies to make sure that the policies are sound and are understood by its
maintenance personnel..- It also may want to consider reducing its policies to writing.
2. Sipificant and Substantial; Gravitt; Neeli&ence.
At the start of the hearing, the Secretary agreed to modify the citation by deleting the
inspector's S&S determination. (Tr. 7). I find that this modification is reasonable. The hoses
were in the back walkway, which is behind the leg cylinders. Miners do not work in that area.
The back walkway is a confined area where it is difficult to move around.5 The most common
reason for anyone to be in the back walkway is to conduct a pennissibility inspection, when the
supply hoses are not pressurized, or to replace a hose. As stated above, miners are generally not
near the supply hoses wheq they are pressurized as the shields are moved. Angel testified that a
miner would have to be within inches of a hose in order to sustain an injury from the resulting
spray. The return hydraulic hoses, which are always pressurized during production, operate at
100. to 200 psi. The return hoses were rated at 5,800 psi and they have fourlayers of wire .
braiding. In addition, the miners working along the long wall typically wear protective clothing, ,
as described above. This clothing would protect them from injury. I credit the testimony of
Kunde on this issue.
I find that the gravity was low because, if a hose were to leak hydrclulic fluid, it is unlikely ·.
that anyone would be seriously injured as a result. An injury from a flwd· injection or from a
whipping hose was unlikely. The most likely injury would be from a slip and fall on a deck plate
that was covered with spilled hydraulic fluid.
I also find that Mountain Coal's negligence was low. I credit the company~s evidence
that it has been using the same criteria for determining when a hydraulic hose should be replaced.

5

In a previous decision, I determined that "[e]ven a small individual would have difficulty
walking along the 'back walkway' [in a longwall section at the West Elk Mine]." Mountain
Coal Co., 26 FMSHRC 853, 855 (Nov. 2004). That finding is equally applicable here.
31FMSHRC19

Federal Mine Safety & Health Review Commission
Calendar Year 2009 Index
This index of decisions and orders issued during the calendar year 2009 is divided into three parts:
decisions and orders issued by the Commission, followed by decisions issued by the Administrative
Law Judges (ALls) andlinally, orders issued by the AUs. The listings include date ofissuance,
titles, docket numbers, and page numbers in the Federal Mine Safety and Health Review
Commission Decisions Bluebook (FMSHRC), volume 31. Where the Secretary of Labor, Mine
Safety and Health Administration is a party, listings are under the name of the opposing party.

JANUARY THROUGH DECEMBER 2009

Commission Decisions and Orders
01-13-2009
06-01-2009
11-16-2009
01-22-2009
05-20-2009
Ol-15-2009
11-13-2009
07-07-2009
07-21-2009
09-29-2009
09-24-2009
10-28.:.2009
09-30-2009
04-27-2009
12-03-2009
09-17-2009
11-13-2009
03-31-2009
04-02-2009
10-08-2009
04-17-2009
07-09-2009
02-11-2009
04-23-2009
05-14-2009
12-10-2009

18 Karat, fuc.
ABC Gravel, fuc.
Active Minerals futernational, LLC.
Alaska Mechanical, fuc.
Alex Energy, fuc.
Ancient Sun, fuc.
American Mobile Aggregate ·crushing
Armstrong Coal Company
Ash Grove Cement Company
A Mining Group, LLC.
August Winter & Sons, fuc.
B & H Transfer Company
The Banner Company, LLC.
The Banner Company, LLC.
Banner Blue Coal Company
Barrick Goldstrike Mines, fuc.
Bayer Construction Co., Inc.
Big Ridge, Inc.
Big Ridge, fuc.
Big River Mining, LLC.
Big River Mining, LLC.
Big River Mining. LLC. (reconsideration)
Bill Baltrusch Construction, Inc.
Black Butte Coal Company
Black Mountain Industrial Minerals, LLC.
Blue Haven Energy, Inc.

1

PENN 2008-580
WEST 2009-468-M
SE
2010-38-M
WEST 2008-1582-M.
WEVA 2009-662
PENN 2008-581
CENT 2009-660-M ..
KENT 2009-419
CENT 2009-786-M
SE
2009-505-M
LAKE 2009-447-M
SE
2009-802-M
VA
2009-90
VA
2008-384
VA
2009-3
WEST 2009-932-M
CENT 2009-716-M
LAKE 2008-516
LAKE 2008-515
WEVA 2009-1669
WEVA2009-l
WEVA2009-l
WEST 2009-203-M
WEST 2009-166
WEST 2009-422-M
WEVA 2010-144

Pg. 20
Pg. 569
Pg.1300,
Pg~.-,54

· Pg:-540
·. pg.o 38
Pg.1281
pg.. 745
Pg. 797
Pg. 1040
·pg. 1032
Pg. 1107
Pg. 1046
Pg. 410
Pg. 1320
Pg. 1013
Pg. 1285
Pg. 362
Pg. 366
Pg. 1070
Pg. 396
Pg. 749
Pg. 121
Pg. 400
Pg. 534
Pg. 1336

05-11-2009 Brahma Group, Inc.
07-24-2009 Bresee Trucking Co., Inc.
02-02-2009 Brody Mining, LLC.
05-21-2009 Brooks Run Mining Co., LLC.
09-23-2009 Bucyrus Field Services, Inc.
06-29-2009 Canyon Fuel Company, LLC.
11-13-2009 Canneuse Lime, Inc.
05-06-2009 Castle Wood Products
10-29-2009 Cessford Construction Company
01-15-2009 Champlain Stone, Ltd.
08-13-2009 Chemical Lime Company of Alabama
04-27-2009 Cintas Corporation
04-07-2009 Clean Energy Mining Company
10-08-2009 Clean Energy Mining Company
07-14-2009 Coal River Mining, LLC.
12-16-2009 Consol Pennsylvania Coal Company
10-30-2009 Consolidation Coal Company
12-15-2009 Consolidation Coal Company
08-13-2009 Consolidated Container Co., LP
· 01-13-2009 ·' '·Craig &Company, LLC. . .·.
·07-20-2009 · ~c.S:A. Mining Incorporated' ·_..
09-23-2009 ' Daroy Sanders; fonnerly employed
. · By Natural Materials, LLC.
61-08-2009 ' Delta Sand & Gravel Co.
11-18-2009 · Delta Sand & Gravel Co. (reconsideration)
·06-16-2009 . Dennis Demers Trucking
07-14-2009 Detroit Salt Company, LLC.
05-06-2009 Dickenson-Russell Coal Co., LLC.
06-10-2009 Dickenson-Russell Coal Company
03-13-2009 Double Bonus Coal Company, et al.
03-19-2009 Double Bonus Coal Company
08-25-2009 Double Bonus Coal Company
01-15-2009 Dusek Sand & Gravel, Inc.
01-13-2009 Dynatec Mining Corporation
01-15-2009 Dyno Nobel, Inc.
08-04-2009 Eastern Associated Coal, LLC.
02-04-2009 Endurance Mining
02-03-2009 Estacada Rock Products
04-17-2009 Extra Energy, Inc.
05-06-2009 Fisher Sand & Gravel Company
11-13-2009 Fisher Sand & Gravel Company
06-15-2009 Freedom Energy Mining Co.
08-25-2009 Freedom Energy Mining Co.

2

WEST 2009-109-M
VA
2009-46
WEYA 2008-1861
WEYA 2009-1628
CENT 2009-433
WEST 2009-232
LAKE 2010-12-M
WEST 2008-1389-M
CENT 2009-787-M
YORK 2008-238-M
SE
2009-552-M
LAKE 2008-594-M
KENT 2008-1458 .
KENT 2009-925
WEYA 2009-966
PENN 2009-546
VA
2009-314
WEYA 2009-1871
SE
2009-551-M
SE
2008-960-M,
KENT 2009-573

Pg. 527
Pg. 804
Pg. 95
Pg. 547
Pg. 1039
Pg. 615
Pg. 1291
Pg. 510
Pg. 1110
Pg. 44
Pg. 858
Pg. 403
Pg. 370
Pg. 1058
Pg. 756
Pg. 1373
Pg. 1123
Pg. 1370
Pg. 855
Pg.'!23·.
Pg.r 773 ·.~
: ·~

CENT 2009-420-M
·WEST 2008-1103-M
WEST 2009..-1103-M
YORK2009-44-M ·.
LAKE 2009-388-M
VA 2008-395
VA 2009-175
WEYA 2008-879
WEYA 2009-810
WEYA 2008-879
. CENT 2008-357-M
SE
2008..990-M
KENT 2008-1580
WEYA 2009-1562
WEYA 2008-267
WEST 2008-812-M
WEYA 2009-44
WEST 2009-132-M
CENT 2009'"758-M
KENT 2009-705
KENT 2009-924

Pg. 1022.
'p~

4

·. Pg. 1303:
Pg.-·602.
Pg. 759
Pg. 507
Pg. 586
Pg. 339
Pg. 358
Pg. 886
Pg. 32
Pg. 26
Pg. 35
Pg. 818
Pg. 105
Pg. 99
Pg. 377
Pg. 513
Pg. 1288
Pg. 592
Pg. 883

Pg. 91
WEST 2008-1548-M
02-02-2009 Freeman Rock, Inc.
Pg. 374
PENN 2008-467-M
04-17-2009 Graymont (PA) Inc.
Pg. 537
WEST 2009-423-M
05-14-2009 Hancock Materials, Inc.
Pg. 1006
KENT 2009-376-M
09-14-2009 Hanson Aggregates Midwest, Inc.
LAKE 2010-27-M
Pg. 1294
11-16-2009 Hanson Aggregates Midwest, LLC.
WEVA 2008-965
Pg. 418
04-27-2009 Harvest-Time Coal, Inc.
Pg. 1009
YORK 2009-143
09-14-2009 Heritage-Coal & Natural Resources, LLC
Pg. 51
KENT2009-1
01-22-2009 Highland.Mining Company, LLC.
WEVA2009-110
Pg. 1313
11-30-2009 Highland Mining Company
SE
2009-472-M
Pg. 1094
10-22-2009 Holcim (US), Inc.
KENT 2009-740
Pg. 566
06-01-2009 Hopkins County Coal, LLC.
PgJ1117·
SE
2009-600-M
10-30-2009 ·'Hoover, Inc.
Pg. 1346
WEVA2007-293 ·
12-14-2009 IO Coal Company, Inc.
CENT 2008-714-M
Pg. 130
02-17-2009 ISP Minerals, Inc.
SE
2008-49-M
Pg. 118
02-22-2009 J & T Services
WEVA 2009-1348
Pg. 1081
10-13-2009 Jacob Mining Company, LLC.
VA
2010-7
Pg. 1331
12-10-2009 JohnR. Hurley
Pg. 1074
10-13-2009 KenAmerican Resources, Inc.
KENT 2009-1060
10-08-2009 Knife River
. WEST2009-1083-M
Pg. 1064
VA
2009-354
, :Pg. .1078 ·
10-13~2009
Knox Creek Coal Corporation
:.·.Pg•. 612 ·
WEVA 2009-1038
06-24-2009. KWV Operations, LLC.
Pg. 555;
05-27-2009 LafargeAggregates Southeast, Inc~·~: ·
SE
2009-707-M
02-04.:.2009 .Lafarge Building Materials, Inc.
P..g. 102
SE
2009-95-M
06-01-2009 . ·Lapp & Sons
WEST 2009-533-M
. Pg•. 572.·
. ·.·:
01-29-2009 , /Lawrence Pendley(Sec~·Laboro/b/o) v.
. ·: . Highland Mining Company .
KENT 2008,..506-D · . Pg. 61.,:
01-12-2009 Left Fork Mining Company
KENT 2008-1111
Pg. 8
07-20-2009 Left Fork Mining Company (reconsideration) KENT 2009-1111
Pg. 780
10-22-2009 Lige Williamson (Sec. Labor o/b/o) v.
CAM Mining, LLC.
KENT 2009-1428-D
Pg. 1085
10-30-2009 Liggett Mining, LLC
Pg. 1113
KENT2010-l
07-20-2009 Lehigh Northeast Cement Co.
YORK 2009-83-M
Pg. 793
06-15-2009 Lehigh Southwest Cement Company
WEST 2009-505-M
Pg. 595
06-02-2009 Lehigh Southwest Cement Company
WEST 2009-512-M
Pg. 578
04-17-2009 Lueders Limestone, LP
CENT 2009-96-M
Pg. 386
06-10-2009 Long Branch Energy
WEVA 2009-43
Pg. 589
01-13-2009 Lopke Quarries, Inc.
KENT 2008-1561-M
Pg. 17
01-27-2009 Luminant Mining Company, LLC.
CENT 2008-726
Pg. 58
09-23-2009 Luminant Mining Company, LLC.
CENT 2009-155
Pg. 1026
12-10-2009 M & P Services, Inc.
WEVA 2009-1983
Pg. 1343
08-28-2009 Mach Mining, LLC.
LAKE 2009-395-R
Pg. 918
04-17-2009 Manalapan Mining Company
KENT2009-9
Pg. 392
07-17-2009 Manalapan Mining Company (reconsideration) KENT2009-9
Pg. 765

3

Pg. 1
01-08-2009 Martin Marietta Materials; Inc.
. SE 2008-991-M
Pg. 815
07-31-2009 McCoy Elkhorn Coal Corporation
KENT 2009-1128
Pg. 911
WEVA 2009-423
08-27-2009 Mettiki Coal, WV, LLC.
Pg. 354
03-18-2009 Michael Cline
YORK2009-25-M
Pg. 870
KENT 2009-1224
08-19-2009 Michael Diamond
Pg. 812
07-31.:.2009 Michael Will emp. by Chemical Lime of AL
SE 2009-550-M
Pg. 575
WEVA 2009-835
06-01-2009 Mingo £ogan Coal Company
Pg. 1120
SE
2009-601-M
10-30-2009 Moltan Company
Pg. 606
06-17-2009 Moraine Materials Company
LAKE 2009-271-M
Pg.1297
SE
2009-687-M
11-16-2009 Moran Environmental Recovery
Pg. 495
05-06-2009 Morris, Inc.
CENT 2009-1
07-20-2009 Morris~· Inc. (second filing)
CENT 2009-1
···
Pg. •789 ·· ·
12-10-2009 Morton Salt Division/Morton International
CENT 2010-30-M. · . Pg. 1328
Pg. 504
05-06-2009 Mosaic Phosphates Company
SE 2009-93-M
Pg. 335
WEVA 2008-1853
03-12-2009 Mt. View Resources
Pg. 422
04-28-2009 Muht-Hei, Inc./Camp Materials
WEST 2008-1455-M
08-13-2009 Myrick Construction Co., Inc.
SE 2008-961-M
Pg. 867
Pg.1100
WEST 2004-182-RM
10-26-2009 National Cement Co. Of California
03-12-2009 Nelson Quarries, Inc.
CENT 2006-151-Mi
Pg. 318
WEST 2009-395 ..M
07-31-2009 ?Newmont USA Limited·
. Pg. S08
08'..13-2009 .. Newmont USA Limited .
'
WEST 2009-396-M
·Pg. 862 ·
·. Pg.1043
· · · ·LAKE 2009-349-M
09-30-2009 . ··Northern Lakes Concrete fuc~
SE 2009-20
02-11-2009 ·.Oak Grove Resources, LLC...
Pg,; 115.
LAKE 2009-143-M
08-27-2009 ·. Oglebay Norton Industrial Sands, fuc.
Pg•. 908 ·
SE .· 2009-293-M . ·Pg. 762.·
07-14-2009 Oil-DriProductionCoinpany
., Pg~· 914.
08-28-2009 .· Oil-Dri Production (reconsideration)
SE 2009-293-M
04-27-2009 Old Dominion Energy, Inc. ·
VA 2008-227
Pg~ 414
09-24-2009 Old Dominion Energy, fuc.
VA 2009-270
Pg.1036
SE
2009-173-M
10-28-2009 Oldcastle Stone Products
Pg. 1103
02-17-2009 Omis Ricky Smith
KENT 2008-1482
Pg. 133
06-10-2009 Oxford Mining Co., LLC.
LAKE 2009-381-M
Pg. 581
08-19-2009 Pacific Rock Products, LLC.
WEST 2009-1003-M
Pg. 877
08-13-2009 Panzer Coal fuc.
KENT 2009-1032
Pg. 852
VA 2008-369
04-23-2009 Penn Virginia Resources Partners
Pg. 389
08-19-2009 Penny Creek Quarry, LLC.
WEST 2009-1016-M
Pg. 880
09-09-2009 Peter J. Phillips v. A & S Construction Co.
WEST 2008-1057-DM Pg. 975
01-22-2009 Petra Materials
CENT 2008-735-M
Pg. 47
07-20-2009 Petroleum Fueling, fuc.
WEVA 2009-1035-M
Pg. 777
08-26-2009 Pine Ridge Coal Company, LLC.
WEVA 2009-1592
Pg. 905
10-30-2009 Pine Ridge Coal Company, LLC. (Reconsideration)WEVA 2009-1592
Pg. 1131
09-20-2009 Pitlick & Wick, fuc.
LAKE 2008-345-M
Pg.1016
SE
2009-26-M
05-06-2009 Precision Drilling, fuc.
Pg. 501
WEST 2009-200-M
05-06-2009 Premier Chemical, LLC.
Pg. 516
4

07-24-2009
05-27-2009
12-10-2009
10-13-2009
10-08-2009
07-17-2009
08-11-2009
05-14-2009
03-04-2009
02-05-2009
04-17-2009
08-06-2009
03-18-2009
05-28-2009
03-18-2009
12-10-2009
08-19-2009
02-12-2009
01-12-2009
05-20-2009
07-20-2009
07-13-2009
02-05-2009
10-08-2009
05-07-2009
01-13-2009
10-30-2009
06-10-2009
04-27-2009
12-14-2009
01-15-2009
06-15-2009
10-22-2009
11-30-2009
05-22-2009
02-11-2009
05-11-2009
03-18-2009
06-24-2009

Quality Aggregates, Inc.
Randy Pack
Ray County Stone Producers, LLC.
Riverton Investment Corporation
Robert Gatlin (Sec. Labor o/b/o) v.
KenAmerican Resources, Inc.
Rock N Road Quarry
Rockhouse Energy Mining Co.
Ron Powell emp.by Oakridge Sand & Gravel
Rowan Construction Company
Ruscat Enterprises, Inc.
S&SRock
SCP Investments, LLC.
Shelton Brothers Enterprises
Sidney Coal Company
Sierra Cascade, LLC.
Solvay Cheipicals
South Ridge Granite Quarry
Southern. Industrial Constructors
Southwest Rock Products, LLC.
Spartan Mining Company, Inc.
• Spartan Mining Company, Inc. (refile)
Stacy Lynn Coal, LLC.
Standard Sand & Silica Company
. Taft Production Company
Thomas J. Smith, Inc.
Twentymile Coal Company
U.S. Silver-Idaho, Inc.
Unimin Corporation
Webster County Coal, LLC.
Webster County Coal, LLC.
West Coast Aggregates, Inc.
West Virginia Mine Power, Inc.
Westside Trucking
Wingdale Materials, LLC.
WKJ Contractor's Inc.
Wolf Run Mining Company
XMV,Inc.
XMV,Jnc.
Youngman Rock, Inc.

5

PENN 2009-408-M
KENT 2009-517
CENT 2010-88-M
WEVA 2008-1449-M

Pg. 800
Pg. 559
Pg.1339
Pg. 1067

KENT 2009-1418-D
Pg. 1050
WEST 2008-561-M
Pg. 769
Pg. 847
KENT 2008-1363
WEST 2009-344-M
Pg. 531
SE
2009-125-M
Pg. 315
WEVA 2008-143
Pg. 112
SE 2009-116-M
Pg. 383
SE
2006-148-M
Pg. 821
KENT 2008-1407
Pg. 347
KENT 2009-862
Pg. 562
WEST 2008-1408-M
Pg. 344
WEST 2009-1099-M
Pg. 1334
SE
2009-625-M
Pg. 873
SE
2008-923-M
Pg. 127
WEST 2009-51-M i ·. Pg. 14 '·
WEVA2009-764 · · :Pg. .543 ·.
WEVA 2009-764
Pg. 785 '
WEVA 2009-1036 ·. . Pg.-. 752
SE
2008-546-M
Pg~ 108 ·
Pgd06l
WEST 2009-567-M
PENN 2008-102
·Pg. 520 .
WEST 2008-991
Pg. 29
WEST 2009-1216
Pg. 1127
SE
2009-362-M
Pg. 583
KENT 2008-1465
Pg. 406
KENT 2009-167
Pg. 1367
WEST 2008-1496-M
Pg. 41
WEVA 2009-934
Pg. 599
WEST 2009-650-M
Pg. 1097
YORK 2009-135-M
Pg. 1307
KENT 2009-624
Pg. 551
WEVA 2008-259
Pg. 124
WEVA 2008-1783
Pg. 523
Pg. 350
WEVA 2009-47
CENT 2009-347~M
Pg. 609

Administrative Law Judge Decisions and Orders
10-26-2009
11-23-2009
07-28-2009
04-03-2009
02-11-2009
03-04-2009
09-04-2009

Abundance Coal, Inc.
Beylund Construction, Inc.
Black :tJjlls Bentonite, LLC.
Brooks Run Mining Co., LLC.
CCC Group, Inc.
Cargill Deicing Technology
Charles Scott Howard (Sec. Labor o/b/o ) v.
Cumberland River Coal Co., Inc.
11-04-2009 Cloverlick Coal Co., LLC.
01-28-2009 Coal River Mining, LLC.
11-18-2009 Consolidation Coal Company
01-02-2009 Cumberland Coal Resources, LP
09-09-2009 Cumberland Coal Resources, LP
02-19-2009 D & H Gravel
06-17-2009 Dynamic Energy, Inc.
08-21-2009 ~ast Tennessee Zinc Company,LLC ..
, 01.-27-2009 : ;Eastern Associated Coal ·Corporation
04:-02-2009 ·~Excel Minin~ LLC.
·,: ·
12-28-2009 Freedom Energy Mining Co.
02-12-2009 Holcirn (US) Incorporated . ·
09:-30-2009 i .Ja~on Turner v. National Cem~nt Co.
. , :· Of California .
10-08-2009 ·Jim Walter Resources, Inc.
07-30-2009 Jim Walter Resources, Inc.
10-29-2009 Johnson Paving Company, et al.
12-03-2009 Knox Creek Coal Corporation
09-30-2009 Lige Williamson (Sec. Labor o/b/o) v.
CAM Mining, LLC.
10-26-2009 Lige Williamson (Sec. Labor o/b/o) v ..
CAM Mining, LLC. (on remand)
11-30-2009 Lige Williamson (Sec. Labor o/b/o) v.
Cam Mining, LLC. (amendment)
07-14-2009 Marfork Coal Company
09-17-2009 Mark Gray (Sec. Labor o/b/o) v.
North Fork Coal Corporation
12-02-2009 Mark Gray (Sec. Labor o/b/o) v.
North Fork Coal Corp. (dissolving Order)
08-07-2009 Milestone Materials, Div. of Mathy Constr.
03-05-2009 Moltan Company, LP
10-16-2009 Mountain Coal Company, LLC.

6

KENT 2010-5-R
CENT 2008-721-M
WEST 2008-660-M
WEVA 2007-701
WEST 2008-124
LAKE 2009-314-DM

Pg. 1241
Pg. 1410
Pg. 926
Pg. 445
Pg. 261
Pg. 425

KENT 2009-1427-D
KENT 2008-497
WEVA 2006-125-R
WEVA 2007-712
PENN 2008-51-R
PENN 2009-189
LAKE 2008-219-M
WEVA 2007-448-R
SE 2008-130-M
WEVA 2007-335.
KENT 2008-122.
KENT 2008-778
SE 2007-154-M

Pg. 1135
Pg. 1377
Pg. 192
Pg. 1398
Pg. 137
Pg. 1147
Pg.. 272
Pg. 670
Pg. 941
Pg. :174. ·
.Pg; >473,'.
Pg,1475
Pg~ ·269, ·.

WEST 2006-568-DM
SE
2007-264
SE
2009-500-R
SE
2007-128-M
VA
2007-15-R

Pg. 1179
. Pg.1208
Pg. 932
Pg. 1246
Pg. 1422

KENT 2009-1428-D

Pg.1187

KENT 2009-1428-D

Pg. 1270

KENT 2009-1428-D
WEVA 2008-564-R

Pg. 1418
Pg. 923

KENT 2009-1429-D

Pg. 1167

KENT 2009-1429-D
LAKE 2009-432-RM
SE
2006-227-M
WEST 2007-409-R

Pg. 1420
Pg. 939
Pg. 427
Pg. 1220

. .! .

06-23-2009 Nally & Hamilton Enterp:tjses, Inc.
04-10-2009 Nelson Quarries, Inc.
09-24-2009 Nichols Construction, Inc.
09-08-2009 North Fork Coal Corporation
03-17-2009 Ohio County Coal Company
12-31-2009 Ohio County Coal Company
12-11-2009 Patriot Mining, LLC.
11-05-2009 Peter J. Phillips v. A & S Construction Co.
02-04-2009 Powder River Coal, LLC.
01-26-2009 R S & W Coal Company, et al.
12-09-2009 R S & W Coal Company
02-02-2009 · ··Richard Jaimes v~ Stansley Mineral Res.·
05-19.;;2009 Rockhouse Energy Mining Co.
12-09-2009 Royal Cement Company
12-31-2009 Shelby Mining Company
10-08-2009 Sidney Coal Company
05-12-2009 Tri-Star Mitring, Inc.
05-29-2009 Vumun Edwurd Jaxun v. Asarco, LLC.
06-29-2009 Walter Kuhl
09-19~~009
Weathertcm Contracting Co., Inc.
·· · ·02~04~2009 \Vebster County Coal, LLC.
". 02-26-"2009 · WestRidgeResotirces~ Inc.
· 06-10-2009 · · Wolf Run Mining Company
·. 04~15-2009 Wolf Run Mining Company
02-26-2009 .Wolf Run Mining Company

Pg. 689
KENT 2008-712
Pg. 458
CENT 2008-287-M
Pg. 1172
VA
2007-17-R
KENT 2009-1429-D
Pg. 1143
KENT 2006-308-R
Pg. 438
Pg. 1486
KENT 2007-318
VA
2009-29
Pg.1464
Pg. 1387
WEST 2009-286-DM
Pg. 243
WEST 2007-898-R
Pg. 168
PENN 2009-97-R
PENN 2010-103-E
Pg. 1440
. LAKE 2008-486-DM
Pg. ·237'
KENT 2009-537
Pg. 622
Pg.1459
WEST 2007-844-M
Pg. 1501
SE
2008-667
Pg. 1197
KENT 2007-217-R
Pg. 619
YORK.2007-76-R
Pg. 631
WEST 2007-811-DM
Pg. 700,
PENN 2008-76-M
. · Pg. 1169,
.. CENT 2008-153-M
·:·P.g.i!2l9 ,·.
KENT 2007-451 .
;::Pg:,•287 : .
WEST 2009-504-"R
Pg~ ~·640
WEVA 2006-853 ·
. WEVA 2008-471 :
Pg; 479
WEVA 2008-804
·Pg. "306 ··.

ADMINISTRATIVE LAW JUDGE ORDERS
05-29-2009
07-24-2009
08-31-2009
09-10-2009
11-06-2009
11-13-2009
11-18-2009
12-03-2009
0~30-2009

06-30-2009
06-30-2009
06-30-2009

Billy Brannon v. Panther Mining, LLC.
Billy Brannon v. Panther Mining, LLC.
Billy Brannon v. Panther Mining, LLC.
Billy Brannon v. Panther Mining, Inc.
Billy Brannon v. Panther Mining, LLC.
Billy Brannon v. Panther Mining, LLC.
Billy Brannon v. Panther Mining, LLC.
Black Beauty Coal Company
Black Panther Mining, LLC.
Five Star Mining, Inc.
Five Star Mining, Inc.
Five Star Mining, Inc.

7

KENT 2009-302-D
KENT 2009-302-D
KENT 2009-302-D
KENT 2009-302-D
KENT 2009-302-D
KENT 2009-302-D
KENT 2009-302-D
LAKE 2008-479
LAKE 2009-391
LAKE 2009-487
LAKE 2009-589
LAKE 2009-598

Pg. 717
Pg. 961
Pg. 972
Pg. 1277
Pg. 1515
Pg. 1533
Pg. 1541
Pg. 1549
Pg. 732
Pg. 734
Pg. 736
Pg. 738

06-30-2009
07-23-2009
12-02-2009
04-21-2009
06-04-2009
12-18-2009
07-15-2009
05-15-2009
06-30-2009
12-10-2009
09-01-2009
06-30-2009
02-17-2009

Five Star Mining, Inc.
Genwal Resources, Inc.
Gilbert Development Corp.
Hopkins County Coal., LLC.
Jim Walter Resources, Inc.
Litts & Sons Stone Company
Mach Mining, LLC.
Mach Mining, LLC.
Mountain Coal Company, LLC.
Mountain Coal Company
(correcting clerical error- page sub.)
SCP Investments, LLC.
.
Solar Sources, Inc.
United Taconite, LLC.

8

G:D U.S. GOVERNMENT PRINTING OFFICE: 201D-358-021/74306

. LAKE 2009-616
WEST 2008-939
WEST 2008-201-M
KENT 2009-820-R
SE 2008-124-R
PENN 2009-273-M
LAKE 2009-323-R
LAKE 2009-395-R
WEST 2009-189

Pg. 740
Pg. 956
Pg. 1547
Pg. 481
Pg. 724
Pg. 1557
Pg. 947
Pg. 709
Pg. 742

WEST 2007-409-R
SE
2006-148-M .
LAKE 2009-253 .
LAKE 2008-93-RM

Pg. 1559
Pg. '1273' '
Pg. 729
Pg. 312