JULY AND AUGUST 2006

COMMISSION DECISIONS AND ORDERS
07-07-2006 Carrneuse Lime & Stone Inc.
07-07-2006 Austin Powder Company
07-07-2006 Hanson Aggregates Southeast, Inc.
07-07-2006 Austin Powder Company
07-07-2006 Air Pollution Testing, Inc.
07-07-2006 Crall & Bowes, Inc.
07-11 -2006 Lehigh Cement Company ..
07-11-2006 Gary Strunk, employed by Lehigh Cement Co.
07-11-2006 Wabash Mine Holding Company
07-13-2006 U.S. Silica Company
07-13-2006 Joseph Honachi employed by Whibco, Inc.
07-14-2006 The Ohio Valley Coal Company
07-14-2006 Neiswonger Construction, Inc.
07-14-2006 DS Mine & Development LLC.
07-20-2006 Aggregates Construction, fuc.
07-20-2006 Golden Phoenix Materials, Inc.
07-21-2006 Marsh Coal Company
08-02-2006 Holliday Sand & Gravel Company
08-02-2006 Nelson Quarries, fuc. ·
08-02-2006 Highland Mining Company, LLC.
08-02-2006 Consol Energy, Inc.
08-02-2006 R.J. Cincotta Company, fuc.
08-02-2006 Tresca Brothers Sand & Gravel, Inc.
08-07-2006 Drummond Company, fuc.
08-22-2006 Plateau Mining Corporation
08-25-2006 Longview Construction & Development
08-25-2006 Nelson Quarries, Inc.
08-29-2006 Hosea 0. Weaver & Sons
08-29-2006 Cumberland Coal Resources, LP
08-30-2006 Jim Walter Resources, fuc.
08-30-2006 Paul Bennett et al. employed by Bennett Mineral

KENT 2006-307-M
LAKE 2006-117-M
SE
2006-212-M
VA · 2006-24
WEST 2006-386-M
WEST 2006-387-M
SE
2006-172-M
SE
2006-173-M
LAKE 2006-1 18
WEVA 2006-720-M
YORK 2006-63-M
LAKE 2006-120
PENN 2006-26-M
WEST 2006-432-M
CENT 2006-195-M
WEST 2006-460-M
KENT 2006-386
CENT 2006-196-M
CENT 2006-200-M
KENT 2006-406
WEVA 2006-769
YORK 2005-116-M
YORK 2005-118-M
SE
2006-280
WEST 2002-207 .
WEST 2006-507-M
CENT 2006-228-M
SE 2005-301-M
PENN 2004-73-R
SE 2003-160
VA 2006-33-M

Pg. 421
Pg. 424
Pg. 427
Pg. 430
Pg. 433
Pg. 436
Pg. 440
Pg. 443
Pg. 446
Pg. 449
Pg. 452
Pg. 455
Pg. 459
Pg. 462
Pg. 466
Pg. 469
Pg. 473
Pg. 477
Pg. 480
Pg. 484
Pg. 487
Pg. 490
Pg. 494
Pg. 498
Pg. 501
Pg. 534
Pg.538
Pg.542
Pg. 545
Pg. 579
Pg. 626

SE
2005-48-M
YORK 2005-11 1-M
WEST 2006-25 1-M
PENN 2006-191
WEST 2005-489-DM

Pg. 631
Pg. 652
Pg. 661
Pg.665
Pg.669

ADMINISTRATIVE LAW JUDGE DECISIONS
07-19-2006 Elmore Sand & Gravel, Inc.
07-28-2006 Pennsy Supply, fuc. .
08-18-2006 Western Rock Reduction Co.
08-22-2006 Summit Anthracite, Inc.
08-28-2006 Sec. Labor o/b/o Diane Palmer v. Asarco, Inc.
i

ADMINISTRATIVE LAW JUDGE ORDERS
07-13-2006 Hosea 0. Weaver & Sons, Inc.
07-18-2006 Arch of West Virginia
07-21-2006 Black Wolf Coal Company, Inc.
07-30-2006 . DiCaped Minerals Corporation
08-08-2006 Marfork Coal Company
08-08-2006 Marfork Coal Company, Inc.
08-11-2006 Marfork Coal Company, Inc.
08-14-2006 Qmax Company
08-17-2006. Hosea 0. Weaver & Sons, Inc.
08-21-2006 Martin County Coal Corporation
08-23-2006 Spartan Mining Company
08-23-2006 Independence Coal Company
08-25-2006 Aracoma Coal Company
08-28-2006 Highland Mining Company
08-28~2006 Spartan Mining Company

SE
2005-301-M
WEVA 2005-209
PENN 2004-157
WEST 2004-511-RM
WEVA 2006-707-R
WEVA 2006-666-R
WEVA 2006-788-R
WEST 2003-451-M
SE
2005-301-M
KENT 2006-416-R
WEVA 2006-532-R
WEVA 2006-537-R
WEVA 2006-824-R
WEVA 2006-712-R
WEVA 2006-628-R

i i

Pg.688
Pg. 694
Pg.699
Pg. 720
Pg. 738
Pg. 742
Pg. 745
Pg. 748
Pg. 751
Pg. 754
Pg. 756
Pg. 759
.Pg. 763
Pg. 766
Pg. 768

JULY AND AUGUST 2006

Review was granted in the following cases during the months of July and August:
Secretary of Labor, MSHA v. Laskey-Clifton Corporation, Docket No. WEST 2006-211-M.
(Judge Melick, June 8, 2006)
Secretary of Labor, MSHA v. Neiswonger Construction, Docket No. PENN 2006-26-M.
(Chief Judge Lesnick, unpublished Default Order, March 23, 2006)
Secretary of Labor, MSHA v. Tresca Brothers Sand & Gravel, Inc., Docket No.
YORK 2005-118-M. (Chief Judge Lesnick, unpublished Default Order, November 2, 2005)

Review was denied in the following case during the months of July and August:
Secretary of Labor, MSHA v. Hosea 0. Weaver & Sons, Inc., Docket No. SE 2005-301-M.
Premature Petition for Review filed August 11, 2006.

iii

COMMISSION DECTSIONS AND ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMlSSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, 1>C 20001

July7, 2006
SECRETARY OF LABOR,
MlNE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. KENT 2006-307-M
A.C. No. 15-05484-79301

v.
CARMEUSE LIME & STONE INC.

BEFORE: Duffy, Chairman; Jordan, Suboieski, and Young, 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. (2000) ("Mine Act''). On May 18, 2006, the Commission received from Canneuse
Lime & Stone Inc. ("Canneuse'') 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).
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 November 8, 2005, the Department of Labor's Mine Safety and Health
Administration {"MSHA") issued Order No. 6108303 to Canneuse. Mot. at 1. Carmeuse
contested the order on November 18, 2005. Id. That contest is the subject of Docket No. KENT
2006-77-RM, which is currently on stay before Commission Administrative Law Judge T. Todd
Hodgdon. On February 16, 2006, Carmeuse received from MSHA a proposed penalty
assessment for Orde,r No. 6108303, but the company states that although it intended to contest
the proposed penalty, it failed to timely do so because of inadvertence or mistake. Mot. at 2.
The Secretary states that she does not oppose Carmeuse's request for relief.

28 FMSHRC 421

We have held that in appropriate circumstances, we ppssess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FM~HRC 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 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 FMSBRC 1529, 1530 (Sept. 1995).
·
Having reviewed Canneuse's motion, in the interests ofjustice, we remand this matter to
the ChiefAdministrative Law Judge for a determination of whether good cause exists for
Canneuse' s failure to timely contest the penalty proposal and whether relief from the final order
should be granted. Ifit is determined that such relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

28 FMSHRC 422

Distribution

R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center
401 Liberty Avenue, Suite 1340
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
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

28 FMSHRC 423

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

SUITE9500

WASHINGTON, DC 20001

July7, 2006
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2006-117-M
A.C. No. 12-02322-75619 E24

v.
AUSTIN POWDER COMPANY

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners

ORDER
BY TIIE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act''). On May 31, 2006, the Commission received from Austin
Powder Company ("Austin Powder") 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).
Under section l 05(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).

In its motion, Austin Powder states that on Januaxy 3, 2006, it received from the
Department of Labor's Mine Safety and Health Administration (''MSHA'') the proposed penalty
assessment at issue. Mot. at l ; Aff. of Kris Bibey. Austin Powder states that a contest was
completed by the company's safety auditor, but through clerical error, the completed fonn was
not mailed to the Secretary. Mot. at 1-2. The company states that it discovered its mistake
during a violation and penalty history audit and attempted to file a contest, but was told by
MSHA that the contest was wttimely. Id. at 2. The Secretary states that she does not oppose
Austin Powder's request for relief.

We have held 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 ofinadvertence or mistake. See 29 C.F .R. .
§ 2700.l(b) ("the Commission and its Judges shall be guid,ed so far as practicable by the Federal
Rules of Civil Procedure''); JWR, 15 FMSHRC at 7&7. 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).
Having reviewed Austin Powder' s motion, in the interests of justice, we remand this ·
matter to the Chief Administrative Law Judge for a determination of whether good cause exists
for Austin Powder's failure to timely contest the penalty proposal and whether relief from the
final order should be granted. If it is determined that such relief is appropriate, this case shall.
proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

~

MicllaeiF.~

28 FMSHRC 425

.

.

Distribution
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite.D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
ChiefAdministrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 426

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

SUITE9500
WASHINGTON, DC 20001

July7, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA)

Docket No. SE 2006..212-M
A.C. No. 09-00721-85313

v.
HANSON AGGREGATES
SOUTHEAST, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, atid Young, 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. (2000) ("Mine Act"). On June 9, 2006, the Commission received from Hanson
Aggregates Southeast, Inc. ("Hanson Aggregates") 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).
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 January 24-25, 2006, the Department of Labor's Mine Safety and Health

Administration ("MSHA") issued Citation Nos. 6080501 and 6080502 to Hanson Aggregates's
Fayette County Quarry. Mot. at 1. The company contested the citations; these contests are the
subject of Docket Nos. SE 2006-177-R and SE 2006-178-R, which are currently on stay before
Commission Administrative Law Judge Jacqueline Bulluck. MSHA issued a proposed penalty
assessment for the tWo citations on April 12, 2006, which Hanson Aggregates failed to contest
because it believed that the contest proceedings before Judge Bulluck "sufficed to cover the
penalty proceedings." Mot. at 1. The Secretary states that she does not oppose Hanson
28 FMSHRC 427

Aggregates' s .request for relief.
We have held 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 underwhicli, 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 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 appropriat~ proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Hanson Aggregates's motion, in the interests ofjustice, we remand this
matter to the Chief Administrative Law Judge for a determination of whether good cause exists
for Hanson Aggregates' s failure to timely contest the penalty proposal and whether relief from
the final order should be granted. If it is determined~ such relief is appropriate, this case sp.alI
proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

~'~~
Michael

28 FMSHRC 428

~Ufii,Chairman - ~

Distribution
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
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

28 FMSHRC 429

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

SUITE9500
WASHINGTON, DC 20001

July?, 2006
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 2006-24
A.C. No. 44-05217-75599 E24

v.
AUSTIN POWDER COMPANY

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act''). On May 31, 2006, the Commission received from Austin
Powder Company ("Austin Powder'') 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).
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).
In its motion, Austin Powder states that on January 3, 2006, it received from the
Department of Labor's Mine Safety and Health Administration (''MSHA") the proposed penalty
assessment at issue. Mot. at 1; Aff. of Kris Bibey. Austin Powder states that a contest was
completed by the company's safety auditor, but through clerical error, the completed form was
not mailed to the Secretary. Mot. at 1-2. The company states that it discovered its mistake
during a violation and penalty history audit and attempted to file a contest, but was told by
MSHA that the contest was untimely. Id. at 2. The Secretary states that she does not oppose
Austin Powder's request for relief.

281.!MSHRC430

We have held 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 I 05(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 i~ Judges shall be guided so far as practicable by the Federal
RUles of Civil Procedure''); JWR, 15 FMSHR.C at 787. We have also·observed that default is a
harsh remedy and that, ifthe 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).
Having reviewed Austin Powder' s motion, in the interests ofjustice, we remand this
matter to the ChiefAdministrative Law Judge for a determination of whether good cause exiSts
for Austin Powder's failure to timely contest the penalty proposal and whether relief from the
final order should be granted. If it is detemtlned that such relief is appropriate, this case shall
proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

/

28FMSHRC431

Distribution
Adele L. Abrams, Esq.

Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
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

28 FMSHRC 432

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

WASHINGTON, DC 20001 ..

July7, 2006
SECRETARY OF LABOR,

MINE SAFETY AND HEALTII
Docket No. WEST 2006-386-M
A.C. No. 26-01089-78497 M703

ADMINISTRATION (MSHA)

v.
AIR POLLUTION TESTING, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) ('~ine Act"). On May 4, 2006, the Commission received from Air
Pollution Testing, Inc. ("Air Pollution Testing'') a letter requesting that the Commission reopen a
penalty assessment that became 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).
On January 26, 2006, the Department of Labor's Mine Safety and Health Ad.ministration
("MSHA") issued to Air Pollution Testing the proposed penalty assessment at issue. The
company asserts that it sent the form to MSHA indicating that it wished to contest the proposed
penalties, but subsequently learned.that it had been listed as delinquent on MSHA's database.
The Secretary of Labor states that she does not oppose Air Pollution Testing's request for relief.

We have held 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
28 FMSHRC 433

Federal Rules of Civil Procedure under whi~h, for example, a party could be enti~ed 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 of Civil Procedure'1; JWR, 15 FMSHR.C at 787. We have also observed that default is a
bars~ 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).
Having reviewed Air Pollution Testing's request, in the interests ofjustice, we remand
this matter to the Chief Administrative Law Judge for a determination of whether good cause
exists for Air Pollution Testing's appa(ellt failure to timely contest the penalty proposal and
whether relief fro~ the final order should be granted. If it is determined that such relief is
appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R Part 2700:

~ordaii,~

28 FMSHRC 434

Distribution
Mike McNaughton
Air Pollution Testing, Inc.
5530 Marshall Street
Arvada, co 80002
W. Christian Schwnann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nc1 Floor West
Arlington, VA 22209-2247
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

28 FMSHRC 435

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

SUITE9500

WASHINGTON, DC 20001

July7, 2006
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
Docket No. WEST 2006-387-M
A.C. No. 05-04483-32619 H783

ADMINISTRATION (MSHA)

v.
CRALL & BOWES, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners

ORDER

BY THE COMMfSSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On May 8, 2006, the Commission received a letter from the
president of Crall & Bowes, Inc. ("Crall & Bowes") requesting that the Commission 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). The Secretary filed a response to Crall & Bowes's letter on
May 12, 2006.
Under section 105(a) ofthe 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 July 21, 2004, the Department of Labor's Mine Safety and Health Administration
(''MSHA'') sent a proposed penalty assessment to Crall & Bowes, a copy of which is attached to
the company's letter and is captioned as case No. 05-04483-32619 H783. The proposed
assessment became a final Commission order on September 4, 2004. Crall & Bowes states in its
letter that it believed the case had been resolved in proceedings before the Commission in Docket
No. WEST 2004-360-M. Crall & Bowes attached to its letter a copy of an order approving the
penalty in and dismissing Docket No. WEST 2004-360-M. However, the proposed penalty
28 FMSHRC 436

assessment Crall & Bowes now seeks to reopen, No. 05-04483-32619 H783, was not in Docket
No. WEST 2004-360-M, which instead concerned another proposed assessment with a similar
case number, 05-04483-27382 H783.
·
The Secretary states in her response that she ·opposes the Commission granting Crall & ·
Bowes' s request for relief under Rule 60(b)(1) of the Federal Rules of Civil Procednre on the .
grounds that it was not filed within one year after the proposed penalty assessment at issue
became a final Commission order. See JS Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct.
2004) (denying several requests to reopen filed more than one year after the penalty proposals at
issue had become final orders, noting that under Rule 60(b) of the Federal Rules of Civil
Procedure, any m<?tion for relief must be made within a reasonable time, and in the case of
mistake, inadvertence, or excusable neglect not more than one year after the order was entered).
Crall & Bowes failed to timely contest the proposed assessment before us. Therefore, it
became a final Commission order 30 days after the company received it.
We have held 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) (".!WR"). In evaluating requests to
reopen final section I 05(a) orders, fue Commission has found guidance in Ruie 60(b) 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. See29 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"); .!WR, 15
FMSHRC at 787. We have also observed that default is a harsh remedy and that, if the
defaulting party can make a showirig of good cause for a failure to timely respond, the case may
be reopened and appropriate prQceedings on the merits permitted. See Coal Prep. Servs., Inc., 17
FMSHRC 1529, 1530 (Sept. 1995). .

28 FMSHRC 437

However, under Rule 60(b) any motion for relief must be made within a reasonable time,
and in the case of mistake, inadvertence, or excusable neglect not more than one year after the
order was entered. Fed. R. Civ. P. 60(b). Here, Crall & Bowes has requested reopening of the
proposed assessment more than one year after it became a final Commission order. Because
Crall & Bowes waited well over a year to request relief, its request is untimely. JS Sand &
Gravel, 26 FMSHRC at 796. Accordingly, Crall & Bowes's motion is denied and this
proceeding is diSmlssed.

~~
~kir:Il~

MichaelF.

28 FMSHRC 438

Distribution
Steven P. Crall> President
Crall & Bowes> Inc.
1877 Vista View Drive
Longmont, CO 80504
W. Christian Schwnann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nc1 Floor West
Arlington, VA 22209-2247
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

28 FMSHRC 439

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

SUITE9500
WASHINGTON, DC 20001

July 11, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2006-172-M
A.C. No. 01-00043-32236

v.

LEIDGH CEMENT COMPANY

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) (''Mine Act"). On April 26, 2006, the Commission received from Lehigh
Cement Company ("Lehigh") a motion made by counsel to reopen a penalty assessment that the
company believed had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a). The Secretary responded to Lehigh's motion in a letter dated May
2, 2006.
Under section 1OS(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 Secretazy, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In its motion, Lehigh states that on July 15, 2004, the Department of Labor's Mine Safety

and Health Administration ("MSHA") sent the company the proposed penalty assessment at
issue, and that a company official timely contested two of the five citations listed in the proposed
assessment. Mot at 2-3; Earl Aff. at 2. On March 20, 2006, however, Lehigh states that it
received a notice from MSHA stating that the penalties against it were delinquent. Mot. at 2.

In her response to Lehigh's motion, the Secretazy states that Rule 60(b) of the Federal
Rules of Civil Procedure (from which the Commission has found guidance in evaluating requests
to reopen final orders) "is inapplicable,'' and Lehigh's motion would not be time barred, because
28 FMSHRC 440

'<the proposed penalty assessment[ was] effectively contested in a timely manner." Sec'y
Response at 1.
Having reviewed Lehigh's motion and the Secretary's response, we conclude that the
proposed assessment at issue has not become a final order of the Commission becaµse Lehigh
timely contested it. We deny Lehigh's motion as moot and remand this matter to the Chief
Administrative Law Judge for further proceedings as appropriate pursuant to the Mine Act and
the Commission's Procedural Rules, 29 C.F.R. Part 2700.

28 FMSHRC 441

Distribution
Dennis J. Morikawa, Esq.
Thomas Benjamin Huggett, Esq.
Morgan, Lewis & Bockius, lLP
1701 Market Street
Philadelphia, PA 19103-2921
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 2200 Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Coinmission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 442

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

SUITT:9500
WASHINGTON, DC 20001

July 11, 2006
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. SE 2006-173-M
A.C. No. 01-0004349139 A

GARY STRUNK,
employed by LEHIGH CEMENT
COMPANY

BEFORE: Duffy, Chairman; Jordan, Subolesk:i, and Young, 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. (2000) (''Mine Act"). On April 26, 2006, the Commission received a motion made
by counsel on behalf of Gary Strunk, an employee of Lehigh Cement Company, to reopen a
penalty assessment against Strunk that he believed may have become a final order of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). The Secretary
responded to Strunk's motion in a letter dated May 2, 2006.
Under the Commission's Procedural Rules, an individual charged under section l lO{c) of
the Mine Act, 30 U.S.C. § 820(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 so notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 29 C.F.R § 2700.27.
In his motion,to reopen, Strunk states that on February 11, 2005, he received a proposed
penalty assessment from the Department of Labor's Mine Safety and Health Administration
(''MSHA"). Mot. at. 3; Strunk Aff. at 2. Strunk further states that when he attempted to schedule
a "pre-contest meeting" with MSHA through his legal counsel, MSHA responded that the
proposed assessment had already been contested. Id. Strunk's counsel nevertheless filed a
timely contest of the proposed assessment. Mot. at 3; Ex. 5. However, Strunk states that on

28 FMSHRC 443

March 20, 2006, he received a notice from :fyfSHA stating that the penalty against him was
delinquent. Mot. at 2.

In her response to Strw;ik's motion, the Secretary states that Rule 60(b) of the Federal
Rules of Civil Procedure (from which the Commission has found guidance in evaluating requests
to reopen final orders) '4is inapplicable," and Strunk' s motion would not be time barred, because
"the proposed penalty assessment[ was] effectively contested in a timely manner.,, Sec'y
Response at 1.
Having reviewed Stnmk's motion and the Secretary's response, we conclude that the
proposed assessment at issue has not.become a final order of the Commission because Strunk
timely contested it. We deny Strunk' s motion as moot and remand this matter to the Chief
Administrative Law Judge for further proceedings as appropriate pursuant to the Mine Act an4
the Commission's Procedural Rules, 29 C.F.R. Part 2700. ·

28 FMSHRC 444

Distribution
Dennis J. Morikawa, Esq.
Thomas Benjamin Huggett, Esq.
Morgan, Lewis & Bockius, LLP
1701 Market Street
Philadelphia, PA 19103-2921
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nc1 Floor West
Arlington, VA 22209-2247
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

28 FMSHRC 445

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW J ERSEY AVENUE. NW

SUITE9500
WASHJNGTON, DC 20001

July 11, 2006

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

Docket No. LAKE 2006-118
A.C. No. 11-00877-75030
Docket No. LAKE 2006-119
A.C. No. 11-00877-77796

v.
WABASH MINE HOLDING COMPANY

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act''). 1 On May 30, 2006, the Commission received from Wabash
Mine Holding Company ("Wabash'') motions made by counsel 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).
Under section lOS(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretazy of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretazy, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On December 15, 2005 and January 19, 2006, the Department of Labor's Mine Safety and
Health Administration (''MSHA'') sent to Wabash the proposed penalty assessments at issue,
which were received by the company on February 7 and 9, 2006. Motions at 1. Wabash states
that although it intended to contest the assessments, it failed to do so in a timely fashion because
of a misunderstanding as to who was to :file the contest. Id. at 1-2. The Secretazy states that she

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers LAKE 2006-118 and LAKE 2006-119, both captioned Wabash Mine
Holding Company and both involving similar procedural issues. 29 C.F.R. § 2700.12.
28 FMSHRC 446

does not oppose Wabash's requests for relief.
We have held that in appropriate circl.UllStances, 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) (".!WR"). fu 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 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).
Having reviewed Wabash's motions, in the interests ofjustice, we remand these matters
to the·Chief Administrative Law Judg~ for a detenniriation of whether good cause exists for
Wabash's failure to timely contest the penalty proposals and whether relief from the final orders
should be granted. If it is determined that such relief is appropriate, these cases shall proceed ··
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

~-~~

MichaeIF.:Chainnail

28 FMSHRC 447

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 ofLabor
1100 Wilson Blvd., 22oc1 Floor West
Arlington, VA 22209-2247
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

28.FMSHRC 448

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

July 13, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEYA 2006-720-M

·Ac. No. 46-02805-82053
v.
U.S. SILICA COMPANY

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) (''Mine Act"). On June 23, 2006, the Commission received from U.S. Silica
Company ("U.S. Silica") 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).
Under section 105(a) ofthe 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 April 4, 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA'') issued to U.S. Silica the proposed penalty assessment at issue. The company asserts
that it had intended to contest four of five ·citations listed in the proposed assessment. Mot. at 2;
Glennon Aff. ~~ 4-5. However, the company mistakenly paid the proposed assessment instead.
Mot. at 2. The Secretary of Labor states that she does not oppose U.S. Silica's request for relief.

We have held 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 FMSHR.C 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
28 FMSHR.C 449

Federal Rules of Civil Procedure under which, for example, a party ~~uld b~ entitled to relief
from a final order of the Comniission on the basis of inadvertence or mistake. Sei29 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'1; 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).

Having reviewed U.S. Silica's motion, in the interests ofjustice, we remand this matter to
the Cl;rief Administrative Law Judge for a detennination of whether .good cause eXists for U.S.
Silica's failure to timely contest the penalty proposal and whether relief from the final order
should be granted. Ifit is determined that such relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

28. FMSHRC 450

Distribution
Thomas C. Means, Esq.
Crowell & Moring, LLP
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-2595
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington~ VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

28 FMSHRC 451

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

July 13, 2006
SECRETARY OF LABOR,

M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK 2006-63-M .
A.C. No. 28-00546'."80200 A

v.
JOSEPH HONACHI,
employed by WIIlBCO, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act"). On June 26, 2006, the Commission received a motion made
by counsel on behalf of Joseph Honachi, a former employee of Whibco Inc., to reopen a penalty
assessment under section l lO(c) of the Mine Act, 30 U.S.C. § 820(c), that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Counsel filed an amended motion on June 27, 2006.
Under the Commission's Procedural Rules, an individual charged under section l lO(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. Ifthe
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.

Jn his motion to reopen, Honachi states that when he received the proposed penalty
assessment from the Department of Labor's Mine Safety and Health Administration (''MSHA")
in February 2006, he gave it to Whibco Inc. office staff"forprocessing." Am. Mot. at 1-2.
Honachi further states that, although he intended to contest the assessment, he failed to do so in a
timely fashion "due to staff turnover" at Whibco Inc., and that the ''uncontested forms were only
discovered when (his] case was assigned to the undersigned counsel." Id. at 2. The Secretary
does not oppose Honachi's request for relief.
28:fMSHRC452

We have held 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 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 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).
Having reviewed Honachi 's motion, in the interests ofjustice, we remand this matter to
the Chief Administrative I,,aw Judge to determine whether good cause exists to reopen this
proceeding. Ifit is determined that such relief is appropriate, this_.cases shall proceed pursuant to
the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. ·

28 FMSHRC 453

Distribution
Adele L. Abrams, Esq.
Law Office
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nc1 Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington,D.C. 20001

28 FMSHRC 454

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

July 14, 2006

SECRETARY OF LABOR,
MINE SAFETY AND-HEALTH

Docket No. LAKE 2006-120
A.C. No. 33·01159-10178

ADMINISTRATION {MSHA)

v.

Docket No. LAKE 2006-121
A.C. No. 33-01.159-14802

THE OHIO VALLEY COAL COMPANY
Docket No. LAKE 2006-122
AC. No. 33-01159-26070 .

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY Tiffi COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2000) ("Mine Act''). 1 On May 30, 2006, the Commission received a letter from the
corporate safety director of The Ohio Valley Coal Company ("Ohio Valley Coal") requesting that
the Commission reopen three penalty assessments that had become final orders of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
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 October 8 and December 10, 2003, and May 5, 2004, the Department of Labor's Mine
Safety and Health Administration (..MSHA") sent to Ohio Valley Coal the proposed penalty

1

Pursuant to Commission J:>rocedural Rule 12, on our own motion, we hereby
consolidate docket munbers LAKE 2006-120, LAKE 2006-121, and LAKE 2006-122, all
captioned The Ohio Valley Coal Company and all involving similar procedural issues. 29 C.F.R.
§ 2700.12.
28 FMSHRC 455

assessments at issue. Ohio Valley Coal states that."[c]ontest forms were filed with the Civil
Penalty Compliance Office," but that MSHA has told the company that it has.been unable to
locate the contest forms. In her response to Ohio Valley Coal's letter, the Secretary states that
although she "has no record that the penalty contest forms ... were received by MSHA," she
further states that she "has no basis ... for questioning that those forms were sent to [MSHA] as
asserted" by Ohio Valley Coal. Accordingly, the Secretary does not oppose the company's
requests for relief.
On the record before us, we are unable to determine whether Ohio Valley Coal timely
contested the proposed penalty assessments. If the company did so, the proposed assessments
have not become final orders of the Commission and the company's requests for relief would be
moot. However, if Ohio Valley Coal failed to timely contest the proposed assessments, we
would not be able to grant the relief requested. Under Rule 60(b) of the Federal Rules of Civil
Procedure,2 any motion for relief from a final order must be made within a reasonable time, and
in the case of mistake, inadvertence, or excusable neglect not more than one year after the order
was entered. Fed. R. Civ. P. 60(b). Here, Ohio Valley Coal has requested reopening of
proposed assessments more than one year after they became final Commission orders if the
company did not file a timely contest. See JS Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct.
2004) (denying request to reopen filed more than one year after penalty proposals had become
final orders).

2

We have held that in appropriate circwnstances, 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).. In evaluating requests to reopen final
section l 05(a) orders, the Commission has found guidance in Rule 60(b) under whlch, for
example, a party could be entitled to relief from a final order of the Commission on the basis of
inadvertence or mistake. Id. at 787.
28 FMSHRC 456

Accordingly, we remand this matter to the Chief Administrative Law Judge for a
determination of whether Ohio Valley Coal timely contested the proposed penalty assessments at
issue. If it is determined that the company did file timely contests, the Chief Judge shall order
further proceedings as appropriate pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R . Part 2700. Ifit is determined that Ohio Valley Coal failed to timely contest the
proposed assessments, the Chief Judge shall dismiss these consolidated proceedings.

28 FMSHRC 457 ·

Distribution
Jerry M. Taylor, CoipOrate Safety Director
The Ohio Valley Coal Company
56854 Pleasant Ridge Road
Alledonia, OH 43902
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 2211d Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

28 FMSHRC 458

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

July.14, 2006

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2006-26-M

v:
NEISWONGER CONSTRUCTION, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act"). On February 3, 2006, Chief Administrative Law Judge
Robert Lesnick issued to Neiswonger Construction, fuc. (''Neiswonger") an Order to Show Cause
for failing to answer the Secretary of Labor's petition for assessment of civil penalty. On March
23, 2006, Chief Judge Lesnick issued an Order of Default entering judgment for the Secretary
and directing Neiswonger to pay the proposed civil penalty immediately.

On May 1, 2006, the Commission received a letter from William Klingensmith,
Neiswonger's superintendent, seeking review of the Chief Judge' s default order. This letter,
however, offers no explanation forwhy the company failed to file an answer or respond to the
Chief Judge's show cause order. Instead, the letter states "all letters were replied to within the
[requisite] time frame." The Secretary has not filed a response to Neiswonger's request for
relief.
The Chief Judge's jmisdiction in this matter terminated when he issued his default order.
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 review within 30 days of its issuance.
30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). Here, Neiswonger did not file a timely
petition for review, and consequently, the Chief Judge's order became a final order of the
Commission on May 2, 2006. 30 U.S.C. § 823(d)(l ).

28 FMSHRC 459

We have held that in appropriate circumstances, we possess jurisdiction tq reopen
uncontested assessments that have become final Conimission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 78~89 .(May 1993) ("JWR'}. In evaluating requests to
reopen final section 105(a) orders, the Commissioiibas 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 of Civil Procedure''); JWR, IS 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 ·10
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).
Upon review of the record, we have detennined that the wording of the Order to Show ·
Cause did not conform to the Commission's Procedural Rules. Accordingly, in the·interest of
justice, we hereby vacate the Order qf Default and remand this matter to the Chief Judge for
further appropriate proceedings. See REB Enterprises, Inc., 18 FMSHRC 311(March1996).

28 FMSHRC 460

Distribution
Bill Klingensmith, Superintendent
Neiswonger Construction Inc.
17592 Route 322
Strattanville, PA 16258
Linda Thomasson, Esq.
Office of the Solicitor
U.S. Department of Labor
The Curtis Center, Suite 630E
170 S. Independence Mall West
Philadelphia, PA 19106-3306
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N .W., Suite 9500
Washington, D .C. 20001

28 FMSHRC 461

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

July 14, 2006

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2006-432-M
A.C. No. 02-02672-21378

v.
DS MINE & DEVELOPMENT LLC

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) (''Mine Act"). On June 15, 2006, the Commission received a letter from DS
Mine & Development LLC (''DS Mine & Development") requesting that the Commission 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 1OS(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).
On March 16, 2004, the Department of Labor' s Mine Safety and Health Administration
(''MSHA") sent to DS Mine & Development the proposed penalty assessment at issue. The
company states that it contested the proposed assessment in a timely fashion, but that a ''response
to that contest was never received.'' In her response to DS Mine & Development's letter, the
Secretary states that although she ''has no record that the penalty contest form ... was received
by MSHA," she further states that she "has no basis . .. for questioning that this form was sent to
[MSHA] as asserted" by DS Mine & Development. Accordingly, the Secretary does not oppose
the company' s request for relief.

On the record before us, we are unable to determine whether DS Mine & Development
28 FMSHRC 462

timely contested the proposed penalty assessment If the company did so, the proposed
assessment has not become a final order of the Commission and the company's request for relief
would be moot. However, if DS Mine & Development failed to timely contest the proposed
assessment, we would not be able to grant the relief requested. Under Rule 60(b) of the Federal
Rules of Civil Procedure, 1 any motion for relief from a final order must be made within a
reasonable time, and in the case ofniistake, inadvertence, or excusable neglect not more than one
year after the order was entered. Fed. R. Civ. P. 60(b). Here, DS Mine & Development has
requested reopening of a proposed assessment more than one year after it became a final
Commission order if the company did not file a timely contest. See JS Sand & Gravel, Inc.,
26 FMSHRC 795, 796 (Oct. 2004) (denying request to reopen filed more than one year after
penalty proposals had become final orders).

1

We have held 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). In evaluating requests to reopen final
section IOS(a) orders, the Commission has found guidance in Rule 60(b) 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. Id. at 787.
28 FMSHRC 463

Ac~ordingly, we remand this matter to the Chief Administrative Law Judge for a

determination of whether DS Mine & Development timely contested the proposed penalty .
assessment at issue. If it is detennined that the company did file a timely contest, the Chief
Judge shall order ~er proceedings as appropriate pursuaµt to the Mine Act and·the
Commission's Procedural Rules, 29 C.F.R. Part 2700. Jfit is determined that DS Mine &
Development failed to timely contest the proposed assessment, th~ Chief Judge shall dismiss this
·
proceeding.

28 FMSHRC 464

Distribution
Clarence E. Ellis, Safety Consultant
Arizona Safety Management
D S Mine & Development LLC
433 E. 8th Street
Mesa, AZ 85203

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nc1 Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

28 FMSHRC 465

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUJT'E9500
WASHINGTON, DC 20001

July 20, 2006

SECRETARY OF LABOR,

MINE SAFETY AND HEALTII
Docket No. CENT 2006-195-M
AC. No. 32-00730-81412

ADMINISTRATION (MSHA)

v.
AGGREGATES CONSTRUCTION, INC.

BEFORE: Duffy, Chairman; Jordan, Subolesk:i, and Young, Commissioners
ORDER
BY TIIE CO:MMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U .S.C.
§ 801 et seq. (2000) (''Mine Act"). On July 11, 2006, the Commission received from Aggregates
Construction, Inc. ("Aggregates Construction") 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).
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).
~ its motion, Aggregates Construction states that in March 2006, the Department of
Labor' s Mine Safety and Health Administration (''MSHA") sent to the company the proposed
penalty assessment at issue. Mot. at 1. Aggregates Construction further states that when it
contested a number of related penalty assessments, the contest of the proposed assessment at
issue ''was inadvertently left out" despite the company's intention to contest it. Id. at 1-2. The
company discovered its mistake when it received a "past due" payment notice from MSHA. Id.
at 2. The Secretary of Labor states that she does not oppose Aggregates Construction's request
for relief.

We have held that in appropriate circumstances, we possess jurisdiction to reopen
28 FMSHRC 466

uncontested assessments that-have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR'1. 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 of Civil Procedure"); .!WR., 15 FMSHRC at 787. W~ 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 ~n the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Aggregates Construction's request, in the interests ofjustice, we
remand this matter to the Chief Administrative Law Judge for a detennination of whether good
cause exists for Aggregates Construction's failure to timely contest the penalty ·proposal and
whether relief from the final order should be granted. Ifit is determined that such relief is
appropriate, this case shall proceed pursuant to the.Mine Act and the Commission's Procedural.
Rules, 29 C.F.R. Part 2700.

28 FMSHRC 467

Distribution
Adele L . Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.

Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22DCI Floor West
Arlington, VA 22209-2247
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

28 FMSHRC 468

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9SOO

WASHINGTON, DC 20001

. July 20, 2006

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2006-460-M
A.C. No. 26-02302-44079

v.
GOLDEN PHOENIX MATERIALS, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act''). On June 22 and July 5, 2006, the Commission received two
letters from Golden Phoenix Materials, Inc. ("Golden Phoenix'') requesting that the Commission
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).
On November 29, 2004, the Department of Labor's Mine Safety and Health
Administration ("MSHA'') sent to Golden Phoenix the proposed penalty assessment at issue.
The company states that it contested the "MSHA decision" ''within the allotted time period," and
that MSHA received the contest, but that it "may not have been properly forwarded to the
relevant department." The Secretary of Labor states that she does not oppose Golden Phoenix's
request for relief.
On the record before us, we are unable to determine whether Golden Phoenix timely
contested the proposed penalty assessment. If the company did so, the proposed assessment has
not become a final order of the Commission and the company's request for relief would be moot.
.
.
28 FMSHRC 469

However, if Golden Phoenix failed to timely contest the proposed assessment, we would not be
able to grant the relief requested. Under Rule 60(b) of the Federal Rules of Civil Procedure, 1 any
motion for relief from a final order must be made within a reasonable time, and in the case of
mistake, inadvertence, or excusable neglect not more than one year after the order was entered.
Fed. R Civ. P . 60(b). Here, Golden Phoenix has requested reopening of a proposed assessment
more than one year after it became a final Commission order if the company did not file a timely
contest. See JS Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004) (denying request to
reopen filed more than one year after penalty proposals had become final orders).

1

We have held that in appropriate circumstances, we possess jurisdiction to reoperi
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993). In evaluating requests to reopen final
section 105(a) orders, the Commission has found guidance in Rule 60(b) 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. Id. at 787.
28 FMSHRC 470

Accordingly, we remand this matter to the Chief Administrative Law Judge for a
detennination of whether Golden Phoenix timely contested the proposed penalty assessment at
issue. If it is detennined that the company did file a timely contest, the Chief Judge shall order
further proceedings as appropriate pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. If it is determined that Golden Phoenix failed to timely contest the
·
proposed assessment, the Chief Judge shall clismis~ this proceeding.

28 FMSHRC 471

Distribution
Larry A. Kitchen, Accounting Officer
Golden Phoenix Minerals, Inc.
1675 E. Prater Way, Suite #102

Sparks, NV 89434
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22oc1 Floor West
Arlington, VA 22209-2247

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

28 FMSHRC 472

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

WASHINGTON, DC 20001

July 21, 2_0 06

SECRETARY OF LABOR,
Docket No. KENT-2006-386
A.C. No. 15-18629-81483

MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA)

v.

Docket No. KENT 2006-387
A.C. No. 15-18629-83815

MARSH COAL COMPANY
Docket No. KENT 2006-388
A.C. No. 15-18629-73612
Docket No. KENT 2006-3&9
A.C. No. 15-18629-75890
Docket No. KENT 2006-390
A.C. No. 15-18629-86540

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY TIIB COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U .S.C.
§ 801 et seq. (2000) ("Mine Act'').1 On July 5, 2006, the Commission received a letter from
Marsh Coal Company ("Marsh Coal'') requesting that the Commission reopen five 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). Accompanying the letter were copies of the proposed penalty
assessments at issue. The Secretary of Labor filed a response to Marsh Coal's letter on July 11 ,
2006.

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers KENT 2006-386, KENT 2006-387, KENT 2006-388, KENT
2006-389, and KENT 2006-390, all captioned Marsh Coal Company and all involving similar
procedural issues. 29 C .F.R. § 2700.12.
28 FMSHRC 473

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 November 29, 2005, and January 3-, February 28, March 28, and May 2, 2006, the
Department of Labor's Mine Safety and Health Administration ("MSHA") issued proposed
penalty assessments to Marsh Coal. Jn its letter, Marsh Coal states that it is unable to pay the

assessments (''we don't have the money''). The company offers no explanation, however, for its
failure to timely contest-the proposed assessments. In her response, the Secretary States that
Marsh Coal "identifies no legally cognizable grollllds for requesting reopening" because the
company's "stated reason ofnot having the money to pay does not meet any of the legal
requirements ofRule 60(b)" of the Federal Rules of Civil Procedure. S. Resp. at 2.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Ine., 15 FMSHR.C.782, 786-89(May1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) under
which, for example, a party co\Ild 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.

28 FMSHRC 474

Because Marsh Coal's request for relief does not explain the company's failure to contest
the proposed assessments, and is not based on any of the grounds for relief set forth in Rule
60(b), we hereby deny the request for relief without prejudice.

28 FMSHRC 475

Distribution
Pauline Honeycutt
Marsh Coal Company
13227 Highway 7 South
Kite, KY 41828
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22ac1 Floor
Arlington, VA 22209-2296
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

28 FMSHR.C 476

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

August 2, 2Q06
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. CENT 2006-196-M
A.C. No. 14-01484-79826

v.
HOLLIDAY SAND AND GRAVEL
COMPANY

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) (''Mine Act"). On July 12, 2006, the Commission received from Holliday
Sand and Gravel Company ("Holliday'') a letter requesting that the Commission reopen a penalty
assessment that became 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).
On February 8, 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA'') sent to Holliday the proposed penalty assessment at issue. The company asserts that
it telephoned Ron Pennington (presumably an MSHA official) and was told to write on the bill
that the two relevant citations were in the process of being contested. Holliday states that it did
so, but that MSHA's Civil Penalty Compliance Office told the company that the paperwork was
not received. The operator assert~ that, after it received a bill in May 2006, it again sent the bill
back, advising the compliance office that it was contesting the citations. The Secretary of Labor
states that she does not oppose Holliday' s request for relief.

28 FMSHRC 477

We have held that in appropriate circumstances, we possess jurisdiction to ~pen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) (".!WR"). 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.
§ 2700.1(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 cast? may be reopened and appropriate proceedings.on·the merits permitted.
See Coal Prep. Servs., Inc., 17 F¥$HRC 1~29, 1530 (Sept. 1995).
Having reviewed Holliday' s request, in the interests ofjustice, we remand this matter to
the Chief Administrative Law Judge for a determination ofw~er good cau,se exi~ts for .
Holliday' s apparent failure to timely contest the penalty proposal and whether relief from the
fin.al order should be granted. Ifit is determined that such relief is appropriate, this case.shall
proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

28 FMSHRC 478

Distribution
Millie Nelson, Safety Office
Holliday Sand & Gravel
9660 Legler Road
Lenexa, KS 66219
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nc1 Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

28 FMSHRC 479

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

SUITT:9500

WASHINGTON, DC 20001

August 2, 2006

Docket No. CENT 2006-200-M
A.C. No. 14-01635-74774
Docket No. CENT 2006-201-M
A.C. No. 14-01635-80401
Docket No. CENT 2006-202-M
A.C. No. 14-01477-80283
Doeket No. CENT 2006-203-M
A.C. No. 14-01478-77337
Docket No. CENT 2006-204-M
A.C. No. 14-01478-82614
Docket No. CENT 2006-205-M
A.C. No. 14-01597-77364
Docket No. CENT 2006-206-M
A.C. No. 14-01597-80316
Docket No. CENT 2006-207-M
A.C. No. 14-01277-74668
Docket No. CENT 2006-208-M
A.C. No. 14-01277-82615
Docket No. CENT 2006-209-M
A.C. No. 14-01277-80289

SECRETARY OF LABO~

MINE SAFETY AND HEALTH
AD.MINISTRATION (MSHA)

v.
NELSON QUARRIES, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) (''Mine Act"). 1 On July 14, 2006, the Commission received from Nelson

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers CENT 2006-200-M, CENT 2006-201-M, CENT 2006-202-M,
CENT 2006-203-M, CENT 2006-204-M, CENT 2006-205-M, CENT 2006-206-M, CENT
2006-207-M, CENT 2006-208-M, and CENT 2006-209-M, all captioned Nelson Quarries, Inc.
and all involving similar procedural issues. 29 C.F.R. § 2700.12.
28 FMSHRC 480

Quarries, Inc. ("Nelson Quarries") a letter requesting that the Commission reopen ten penalty
assessments that had become final orders 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 fo 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).

In late 2005 and early 2006, the Department of Labor's Mine Safety and Health
Administration ("MSHA'') sent to Nelson Quarries the proposed penalty assessments at issue.
Nelson Quarries asserts that it contacted MSHA and understood that it was not to pay the
assessments pending review of the citations. In response, the Secretary states that MSHA
indicated that the company did not need to pay assessments related to other pending citations but
did need to pay the assessments in this proceeding. However, the Secretary concludes that, in
light of the company's confusion over whether it should pay, she does not oppose Nelson
Quarries' s request for relief.
We have held 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 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 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).

28 FMSHRC .481

Having reviewed Nelson Quarries's requests, in the interests ofjustice, we remand these
matters to the Chief Administrative Law Judge for a d~ation ofwhether good cau8e .exists
for Nelson Quarries' s failure to timely contest the penalty proposals and whether relief from the
final orders should be granted. Ifit is determined that such relief is appropriate, these cases shall
proceed piJrsuant to th~ Mine Act and the.Commission's Piocedural Rules, 29 C.F.R. Part 2700.

28 FMSHRC 482

Distribution
Kenneth L. Nelso~ President
Nelson Quarries, Inc.
1307 2000 Street
P.O. Box 100
Oas, KS 66742-0100
W. Christian Schumann, Esq.

Office of the SolicitOr
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

28 FMSHRC 483

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

August 2, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. KENT 2006-406
A.C. No. 15-02709-87642

v.
HIGHLAND MINING COMPANY, LLC

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners

ORDER
BY TIIB COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On July 12, 2006, the Commission received from Highland
Mining Company, LLC (''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).
In February 2006, the Department of Labor's Mine Safety and Health Administration

("MSHA'') issued eight citations to the Highland 9 Mine. Mot. at 1-2. The company timely
contested the citations. The contest proceedings are cmrently on stay before Commission
Administrative Law Judge T. Todd Hodgdon. 1 Id. When MSHA subsequently proposed
penalties for the citations, Highland paid them. Id. at 2. The company now contends that it made
the payment inadvertently. Id. The Secretary states that she does not oppose Highland's request
for relief.

1

The contest proceedings underlying the proposed penalty assessment at issue in this
request to reopen (Proposed Assessment No. 15-02709-87642) are as follows: KENT
2006-189-R, KENT 2006-190-R, KENT 2006-194-R, KENT 2006-195-R, KENT 2006-196-R,
KENT 2006-202-R, KENT 2006-227-R, and KENT 2006-229-R.
28 FMSHRC 484

We have held 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 66{b) of the
Federal Rules of Civil Procedure under which, for example, a party could be erititled 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 Judge8 shall be guided so far as practicable by the Federal
Rules of Civil Procedure''); JWR, 15 FMSHRC at 787.
Having reviewed Highland's motion, in the interests ofjustice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Highland' s inadvertent payment, and whether relief from the final order should be granted.. Ifit
is determined that such relief is appropriate, this case shall proceed pursuant to the Mine Act and·
the Commission's Procedural Rules, 29 C.F.R. Part 2700.

28 FMSHRC 485

Distribution
Rebecca J. Oblak, Esq.
Bowles, Rice McDavid
Graff & Love, LLP
7000 Hampton Center, Suite K
Morgantown, WV 26505
Neil A Morholt, Esq.
Office of the Solicitor
U.S. Department of Labor
618 Church Street, Suite 230
Nashville, TN 37219
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22ru1 Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

28 FMSHRC 486

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

August 2, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2006-769
A.C. No. 46-01436-78898

v.
CONSOL ENERGY, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act"). On July 7, 2006, the Commission received from Consol
Energy, Inc. ("Consol") 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 July 19, 2005, the Department of Labor' s Mine Safety and Health Administration
(''MSHA") issued Citation Nos. 7124679 and 7124684 to Consol's Shoemaker Mine. Mot. at 1.
The company timely contested both citations. The contest proceedings are currently on stay
before Commission Administrative Law Judge Michael E. Zielinski. Id. (citing Docket Nos.
WEVA 2005-211-R and WEVA 2005-213-R). When MSHA subsequently proposed penalties
for the contested citations in Proposed Penalty Assessment No. 46-01436-78898, Consol paid
them. Mot. at 1-2. The company now contends that it made the payments inadvertently. Id. at 2.
The Secretary states that she does not oppose Consol 's motion.
We have held 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 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
28 FMSHRC 487

from a :final order:of the Commission on the basis of inadvertence or mi.stake. 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.
·

this

Having reviewed Consol's motion, in the interests ofjustice, we remand
matter to the
Chief Administrative Law Judge for a determiriation of whether good cause exists for Consol's _
inadvertent payment, and whether relief ftom the :final order should be grant.ed. If it is
determined that such relief is appropriate, this case shall proceed pursuant to the Mine Act and
the Commission's Procedural Rules, 29 C.F.R. Part 2700.
·

Mic

28 FMSHRC 488

Distribution
Rebecca J. Ohl~ Esq.
Bowles, Rice McDavid
Graff & Love, LLP
7000 Hampton Center, Suite K
Morgantown, WV 26505
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

28 FMSHRC 489

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

WASHINGTON, DC 20001

August 2, 2006

SECRETARY OF LABOR,

M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK 2005-116-M
A.C. No. 19-01114-56147

v.
R.J. CINCOTTA COMPANY, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Yowig, Commissioners
ORDER
BY THE COMMISSION:
This matter arises wider the Federal Mine Safety and Health Act of 1977, 30 U .S.C.
§ 801 et seq. (2000) ("Mine Act"). This is the second time that this case has come before us. On
February 6, 2006, we issued an order remanding the matter to Chief Administrative Law Judge
Robert J. Lesnick to determine whether good cause existed for the failure ofR.J. Cincotta
Company, Inc. ("Cincotta") to respond to a show cause order issued by Chief Judge Lesnick. On
April 11, 2006, Chief Judge Lesnick issued an order denying Cincotta' s request to reopen the
penalty assessment and ordered payment of the penalty.
On May 2, 2006, the Commission received :from the Secretary of Labor a motion to
relieve Cincotta from the April 11 order of default and order to pay. In the Secretary's motion,
her counsel asserts that shortly after the proposal for assessment of civil penalty was served on
Cincotta in July 2005, a settlement was reached in early August 2005. Mot. at 2. Counsel states
that he telephoned the Office of Administrative Law Judges and reported the matter settled. Id.
The Secretary did not, however, file a motion to approve settlement. CoW1Sel also asserts that he
telephoned the Office of the Administrative Law Judges notifying the person to whom he spoke
that the matter was settled, after the judge issued an order to show cause on August 18, 2005. Id.
CoW1Sel states that he also told the operator that he had reported the matter settled. Id. Again,
however, no motion was filed setting forth the particulars of the settlement On November 2,
2005, an order of default was issued. On January 17, 2006, the Commission received a letter
from Cincotta requesting that the case be reopened. We remanded Cincotta's request to the
Chief Judge on February 6, 2006.

28 FMSHRC 490

While on remand, the Seer~ filed a motion for approval of settlement with the judge.
However, counsel did not explain that the matter had been settled the previous August, ·nor that
the Secretary had delayed iii filing the settlement motion. See .Sec' y Mot. for Approval of
Settlement and Order. On the record before him, the judge denied Cmcotta's request to reopen.
The Secretary then filed the instant motion to relieve respondent from the order of default,
alleging that the Secretary' s delay in filing the settlem~t motion resulted from counsel' s absence
due to the illnesses of his elderly parents. Mot. at 3; A.ff. ~ 7.
The judge's jurisdiction in this matter tenninated when his decision was issued on
April 11, 2006. 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); 29 C.F.R § 2700.70(a). If the
Commission does not direct review within 40 days of a decision' s issuance, it becomes a final
decision of the Commission. 30 U.S.C. § 823(d)(l ). The judge' s order became a final decision
of the Commission on May 22, 2006.

In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under whic~ 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"); /im Walter Res., Inc., 15 FMSHRC 782, 787 (May 1993).
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).

28 FMSHRC 491

Although the Chief Judge has once denied Cincotta's request to reopen this case, it
appears from the record that the Judge was never made aware that the Secretary had entered into
appropriate
a settlement agreement with Cincotta and was responsible for the delay in filing
pleadings with the Commission. Accordingly, in light of the Secretary's admitted failme to
timely file a motion for ai>Proval of settlement, in the interest ofjustice, we hereby reopen this·
matter and remand it to the Chief Judge fo~ a determination ofwhether ~emotion ~o~ settlement
should be approved, and for other appropriate relief pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700.

the

·ssioner

28 FMSHRC 492

Distribution
Debbie Cincotta
R. J. Cincotta Company, Inc.
P.0.Box556
Waltham, MA 02454
James L. Polianites, Jr., Esq.
Office of the Solicitor
U.S. Department of Labor
E-375, John F. Kennedy Federal Bldg.
Boston, MA 02203
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 2200 Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

28 FMSHRC 493

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

WASHINGTON, DC 20001

August 2, 2006
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
Docket No. YORK. 2005-118-M
A.C. No. 19-00364-55319

ADMINISTRATION (MSHA)

v.
TRESCA BROTIIERS SAND
& GRAVEL, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act"). On November 2, 2005, Chief Administrative Law Judge
Robert J. Lesnik entered an order of default against Tresca Brothers Sand & Gravel, Inc.
(''Tresca"). On May 2, 2006, the Commission received a motion from the Secretary of Labor
requesting that the Commission relieve Tresca :from the order of default.
The judge's jurisdiction in this matter terminated when his decision was issued on
November 2, 2005. 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); 29 C.F.R.
§ 2700.70(a). If the Commission does not direct review within 40 days of a decision's issuance,
it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(l). The judge's order
became a final decision of the Commission on December 12, 2005.
On May 3, 2005, the Department of Labor's Mine Safety and Health Administration
(''MSHA") sent to Tresca the proposed penalty assessment at issue. In the Secretary's motion,
her counsel asserts that in early August 2005, a settlement was reached between the parties and
counsel for the Seeretary called the Commission's Office of Administrative Law Judges to report
that the case was settled. Mot. at 2. The Secretary did not, however, file a motion to approve
settlement. On September 12, 2005, an order to show cause was issued requiring that Tresca file

28 FMSERC 494

an answer with the judge. According to the Secretary's counsel, he again notified the Office of
Administrative Law Judges by telephone that the niatter had been settled. Aff. 1 6. Again,
however, no motion was filed setting forth the particulars of the settlement. On·November 2,
2005, an order of default was entered against Tresca. Almost four months later, on February 27,
2006, the Secretary filed a motion for approval of settlement. On April 11, 2006, the judge sent a
letter to the parties indicating that he was unable to rule on the motion as his jurisdiction had
tenninated when he issued the default order. The Secretary then filed the instant motion to
relieve respondent from the order of default, alleging that the Secretary's delay in filing the
settlement motion resulted from counsel's absence due to the illnesses of his elderly parents.
Aff. 17..
We have held 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 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).

28 FMSHRC 495 ·

In light of the Secretary's admitted failure to timely file a motion for approval of
settlement, in the interest ofjustice, we hereby reopen this matter and remand it to the Chief
Judge for a determination of whether the motion for settlement should be approved, and for
other appropriate relief pursuant to the Mine Act and the Commission's Procedural Rµles , 29
C.F.R. Part 2700.

28 FMSHRC 496

Distribution
John Tresca, President
Tresca Brothers Sand & Grave~ Inc.
P.O. Box 189
Millis, MA 02054

James L. Polianites, Jr
Office of the Solicitor
U.S. Department of Labor
E-375, John F. Kennedy Federal Bldg.
Boston, MA 02203
W. Christian Schumann, Esq.

Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

28 FMSHRC 497

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

WASHINGTON, DC 20001

August 7, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. SE 2006-280
A.C. No. 01-02901-83883

v.
DRUM.M:OND COMPANY, JNC.
BEFORE: Duffy, Chairman; Jordan, Suboleslri, and Young, 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. (2000) ("Mine Act'). On July 26, 2006, the Commission received from Drummond
Company, Inc. {"Drummond'') a motion made by counsel to reopen a penalty assessment that had
become a final order 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 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).
On March 29, 2006, the Department of Labor's Mine Safety and Health Administration

("MSHA") sent a proposed penalty assessment to Drummond for two orders issued to the
company by MSHA on December 1, 2005. Mot. at 1; Ex . A. Drummond states in its motion that
it had already timely contested the orders, which are the subject of Docket Nos. SE 2006-59-R
and SE 2006-60-R. Mot. at I. Those proceedings are currently on stay before Commission
Administrative Law Judge T. Todd Hodgdon. Drummond states that it failed to timely contest
the proposed penalty assessment at issue due to inadvertence. Id. The Secretary states that she
does not oppose Drummond's request for relief.

28 FMSHRC 498

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Gommission otders 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) ofthe
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 practic3ble 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).
Having reviewed Drummond's motion, in the interests ofjustice, we remand this matter
to the Chief Administrative Law Judge for a determination ofwhether good cause exists for
Drumniond' s failure to timely contest the penalty proposal and whether relief from the final order
should be granted. If it is determined that such relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F:R. Part 2700.

MLU0"c1an,
co· SiOller
~L~

28 FMSHRC 499

Distribution
Marco M. Rajkovich, Jr. 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
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
MaryBeth Zam.er Bemui, Esq.
Office of the Solicitor
U.S. Department o-f Labor
618 Church Street, Suite 230
Nashville, TN 37219
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New·Jersey Avenue, N.W., Suite·9590
Washingt0n, D.C. 20001

28 fMSHR.C 500

. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMl~SION
601 NEW JERSEY AVENUE, NW
SUITT:9500

WASHINGTQN. DC 20001

August 22, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

·

Docket Nos. WEST 2002-207
WEST 2002-278

PLATEAU MINING CORPORATION
BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
DECISION
BY THE COMMISSION: ·
these civil penalty proceedings, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801"et seq. (2000) (''Mine Act''), concern two citations alleging safety ·
violations·involving the ventilation.system of the Willow Creek.Mine, operated·by Plateau ·
Mining Corporation ("Plateau"). 25 FMSHRC 738 (Dec. 2003) (ALJ). The Department of
Labor's Mine Safety and Health Administration ("MSHA") issued the citations following an
accident at the mine on July 31, 2000, which resulted in two fatalities and numerous injuries to
miners. Id. at 739-40. Administrative Law Judge Richard Manning affirmed Citation No.
7143395 alleging·that.the ventilation system was not functioning as required by 30 C.F.R.
§ 75.334(b)(l),1 and that the violation was significant.and·substantial ("S&S"). Id. at 743-57. In
addition, the judge affirmed Citation No. 7143396 alleging that Plateau had failed to comply with

1

30 C.F.R. § 75.334(b)(l) provides:
During pillar recovery a bleeder system shall be used to control the
3.ir passing through the area and to continuously dilute and move ·
methane-air mixtures and other gases, dusts~ and fumes from the .
worked-out area away from active workings and into a return air
course or to the surface of the mine.
28 FMSHRC 501

its ventilation plan in violation of 30 C.F.R. § 75.370(a)(l)2 but determined ili;at the violation was
not S&S. Id. at 757-60. Plateau filed a petition for discretionary reView, challenging the judge's
.findings that it violated sections 75.334(b)(l) ·a nd 75.370(a)(l) and that its violation of section
75.334(bXl) was S&S. The Commission granted the operator's petition. For the reasons that
follow, the judge's determination that Plaieau·violated section 75.370(a)(l) is reversed, and the
judge's determination that Plateau violated section 75.334(b)(l) stands as if affirmed.

1
Factual and Proceduraj Background
Plateau, which was then a subsidiary of RAG American Coal, Inc., operated the Willow
Creek Mine, an underground coal mine in Carbon County, Utah, until the mine was closed after
the accident at issue in this case. 25 FMSHRC at 738. The mine had three operating sections:
two continuous miner sections, and the D-3 longwall panel, which was the third lori.gwall panel
that had been developed at the mine. Id. A mine fire had occUITed on the D-1 panel, the first
panel mined, on November 25, 1998, after a roof fall in the worked-out area ignited methane. Id.
at 740; Tr. 37-38. Unlike D-2, the D-3 panel would not be separated from the previous panel by
a solid barrier of coal. 25 FMSHRC at 740-41. Rather, the D-3 panel immediately abutted the
D-2 pane4 which had been sealed off after it had been mined. Id. at 739. MSHA granted
Plateau's petition for modification, allowing Plateau to use a two-entry system to develop the D3 panel headgate entries.3 Id.; Tr. 139. The remaining one entry of the two headgate entries that
had been driven to develop the D-2 panel served as the sole tailgate entry fot the D-3 panel.
Gov't Ex. 31, App. I.
Retreat longwall mining began on the D-3 longwall panel on July 17, 2000. 25 FMSHRC
at 739; Jt. Ex. 1, Stip. 16. The face of the D-3 longwall panel was 815 feetwide and the panel·

2

30 C.F.R. § 75.370(a)(l)·provides in part:
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 shall consist
of two parts, the plan content as prescribed in§ 75.371 and the
ventilation map with information as prescribed in§ 75.372.

3

The petition also allowed Plateau to use a two-entry system to mine the D-1 and D-2
panels. 25 FMSHRC at 739; Tr. 139. A two-entry system uses two entries for longwall headgate
and tailgate development. Tr. 35-36. The two-entry system is used to minimize the hazards
created by roof stresses. 25 FMSHRC at 741; Tr. 35, 140-41. However, this minimizes the
availability of air passages provided by additional entries for the movement of air. Tr. 62, 60809, 1207.
28 FMSHRC 502

was projected to be about 4200 feet long. 25 FMSHRC at 739. Mining the D-3 panel presented
a number of challenges because of the amount of methane liberated, the depth of the cover over
the coal seam, and the resultaD.t roof conditions, including the occurrence of roof and rib
bowices. Id. at 740-41. ·In addition, mining released liquid.hydrocarbons, which were roughly
equivalent to 15% ga8oline, 35% kerosene, and 50% light lubrication oil. Id. at 739, 741. The
ventilation plan for the D-3 panel had been given particular·attention by MSHA because of the
difficult mining conditions at the mine and the D-1 panel fire in 1998. Id. at 740.

On the D-3 panel~ behind the rubble zone of the "gob," or the area that had been mined by
the longwall, two entries ran parallel along the width of the longwall panel from headgate to
tailgate. Id. at 741 . These entries were referred to as "setup rooms" because they had been used
to set up the longwall when the D-3 panel was being prepared for mining. Id. Once mining
began, the setup room closest to the longwall shields (the ''No. 1" or "outby'' setup room) became
·
part of the rubble zone.4 Id.; Tr. 45.
The panel was ventilated by a flow-through bleeder system with multiple bleeder entri~
at the rear of the panel. Tr. 46. In a flow-through bleeder system, air flows through the workedout area into the bleeder system, and the bleeder entries are separate from the worked-out area.
Id. A blowing fan installed on the surface forced approxiinately 850,000 cubic feet per minute
("CFM'') of air into the mine. Tr. 40.
Immediately behind the No. 2 setup room, the setup room farthest from the longwall
shields, there were two L-shaped crosscuts (referred to as ''doglegs"), one on the headgate side
and one on the tailgate side. 25 FMSHRC at 741; Gov't Ex. 31, App. I. ·The·headgate dogleg ·
connected the No. l headgate entry with the·No. 2 setup·room. 25 FMSHRC at 741; Tr. 45, 70.
The tailgate dogleg connected the No. 2 tailgate entry with the No. 2 setup room. Gov't Ex. 31,
App. 1 Behind the doglegs and setup rooms was a block of coal. 25 FMSHRC at 741. Behind
the block of coal were three bleeder entries, which ran parallel to the longwall face. Id. The No.
1 bleeder entry, farthest from the longwall shields, was used to ·bring intake air to·a sump pump
at the back of the bleeders.s Id. The other two bleeder entries were return·entries. Id:
The ventilation plan included three alternative methods for ventilating.the D-3 panel. Id.
The approved method being used on July 31 ventilated the panel by forcing air across the
longwall face from the headgate to the tailgate. Id. Intake air was brought to the face from the
No. 2 entry of the headgate through the last open crosscut. Id. After the air ventilated the face, it
4

On the map attached to the judge's decision, the judge mislabeled the No. 2 setup room
as the ''No. 1 setup room," and mistakenly referred to the No. 2 setup room as the No. 1 setup·
room and vise-versa, throughout his decision (see, e.g., 25 FMSHRC at 741, 752, 758). P. Br. at
3 n.3; Tr. 45, 70. The error was hannless, however.
5

The pump operated to keep water from accumulating in the bleeder entries. 25
FMSHRC at 742; Tr. 46-47.
28 FMSHRC 503

was coursed through the tailgate inby toward the bleeder ent:tjes and passed through Measuring
Point Locations (''MPLs") 7.and 8. Id. at_741-4Z. A ~all amount of the intake air from the No.
2 entry of the headgate entered the last open crosscut and was directed out through the No. 1
headgate entry, which was the belt entry. Id. at 742. Intake air also traveled from the No. 2
headgate entry directly to the bleeders through MPLs 5 and 6. Id. In addition, intake air traveled
up the No. -2 tailgate entry, joined with the air that had ventilated the face, and then was coursed
through MPLs 7 and 8. Id.
Intake air traveled through the gob area through various ventilation pathways. Id. ; Gov't
Ex. 3. Air flowed C?Ut of the rubble zone into the setup rooms, and.t hen to the tailgate ~de and
through the regulators at MPLs 7 and ·s. 25 FMSHRC at. 742. Intake air also entered the No. 1
setup room from the headgate through a regulator at MPL 4, which was between the Nos. 1 and 2
headgate entries. Id. Intake air traveled up the No. l headgate entry, inby the longwaij shields,
through a hole in an undercast (sometimes referred to in the transcript as an '.'overcast") built at
the intersection of the No. 1 entry with the No. 2 setup room, through the regulator8 at MPLs 7
and 8, and into the bleeder entries. Id. Air from the longwall panel et?-tered the bleeder ~tries at
MPLs 5, 6, 7, and 8 and traveled approximately 8,000 feet, where the bleeder air joined another
split of air just outby MPLs Bl, B2 and B3.6 25 FMSHRC at.746 n.6, 749. MPJ,, Bl was
designated as a measuring point under 30 C.F.R § 75.323(e).7. Id. at 748;. 749.
Seals were constructed to separate the Nos. 1 and 2 head.gate entries once the longwall
retreated outby each crosscut. Id. at 742. . The ventilation system was.not design~ to course air
from the headgate side of the gob Qack into the headgate entries to.the bleeders .. Id.. This is.
because the headgate portion of the gob was the lowest eleyation, and methane, ~hich. i~ lighter
than air, would tend to migrate to the tailgate side of the gob. . Id, .
The approved plan also required the use.of an automated atmospheric monitoring system
("AMS"). Id. at 743. This system was designed to provide instantaneous informatjon about the
mine's ventilation system by giving infonnation on air velocities, as well as methane,.oxygen,
and carbon monoxide levels. Id. AMS sensors were installed at MPL 1 (the tailgate iµtak:e .to the
longwall), MPL 5 (the headgate No. 2 entry bleeder connector regulator), MPL 6 (headgate No. 1
entry bleeder connector regulator), MPL 7 (tailgate No. 2 entry bleeder connector regulator),
MPL 8 (tailgate No. 1 entry bleeder connector regulator) and MPL B I (D-1 tailgate No. 1 entry
near the D Northeast Mains). Gov' t Ex. 31 at 21.

6

MPLs B 1 and B2 were located between crosscuts 6 and 7 in the D-1 tailgate Nos. 1 and
2 entries, which now formed part of the bleeder for D-3, and MPL B3 was located between
crosscuts 6 and 7 in the No. 3 entry ofthe D seam bleeders. Gov't Ex. 31 at 20.
7

Section 75.323(e) provides in part that "[t]he concentration of methane in a bleeder split
of air immediately before the air in the split joins ano$er split of air ... shall not exceed 2.0
percent." 30 C.F.R. § 75.323(e).
28a1SHRC504

Plateau had an internal protocol which required certain actions when various levels of
methane were measured at designate<flocations.· P. Ex. 15. When methane measured 4% at
MPLs 7 and 8, the operator was to cease longwall productiOn. 25..FMSHRC at 746; P. Ex: 15;
Gov't Ex. 31at21. At4.5% methane, the mine was to be evacuated. 25 FMSHRC at 746; Gov't
Ex. 31 at 21; P. Ex. 15. When methane mea8ured 1.95% ·at MPL Bl, the operator was to cease
production until methane levels decreased to 1.75%. Tr. 1052; Gov't Ex: 31at21. If methane
exceeded 2%, the operator was to "shut down and make corrections," while at 2.5%, the operator
was to evacuate the mine. Tr. 1052.
On July.31, 2000, mining on the D-3 panel had progressed approximately 250 feet. 25
FMSHRC at 741.· Plateau was expecting to intersect the first gob vent borehole, -w hich·was ·
designed to remove methane
the gob, in approximately 100 feet Id. at 742; Tr. 1005, 105758. At approximately 10: 14 p.m., the longwall de-energized as it approached ·the tailgate on its
third clean-up pass. 25 FMSHRC at 739. The crew re-·energized the longwall after 4? minutes at
10:56 p.m. Id. Later that evening and into the following morning, a series of events in-the .
worked-out areas of the D-3 longwall panel resulted in numerous injuries to miners, including ·
two fatal injuries. Jt Ex. 1, Stip. 17. The operator and the 8ecretary of Labor differ in their
explanations of the events.·

from

The Secretary believes that at 11 :48 p.m ., a relatively small roof fall occurred :on the
head.gate side of the gob, between thelongwall face and the setup rooms. 25,FMSHRC at 7J9. · ·
The fall ignited a small pocket of methane and other gaseous hydrocarbons. ·1d. The:flame · .
traveled inby to a small methane accumulation iri the gob neat the setup rooms, which resulted in
the first explosion. Id. The miners believed that the forces they felt occurred because the gob
experienced its :first major cave of the roof. Id. The :first event disrupted verttiiation·at the
longwall, which prevented methane from being removed from the gob through the bleeder
entries. Id. As liquid hydrocarbons became involved ~ the :fire, two subsequent explosions
occurred. Id. After the second explosion, miners were ordered to evacuate. Id. at 739. At
approximately 12:17 a.m. on August 1, a fourth explosion occurred. Id. at 740;
Plateau believes that at about·11 :48 p.m., the shearer was stopped on the head.gate side of
the fac.e while Shield No. 1 was advanced. Id. At that t iine, there wa8 a significant cave of the
roof in the gob. Id. The large roof fall ignited hydrocarbons. P. Post-Hr'g Br. at "I 7. In addition,
the roof fall likely disrupted ventilation in the panel; which pennitted methane to· come into
contact with the hydrocarbon :fire and caused the subsequent explosions. Id. at 15; 25 FMSHRC
at 740.
After an investigation, MSHA issued Citation No. 7143395 alleging a violation of section
75.334(b)(l), Citation No. 7143396 alleging a violation of section 75.370(a)(l), and other
citations which are not the subject of these proceedings. 25 FMSHRC at 738 n.l, 763. In
Citation No. 7143395, the Secretary stated that the bleeder system' s effectiveness was impaired
by a limited mine ventilating potential, the configtiration and diStrlbution of airflow in the
bleeder system and worked-out areas, and teniporary controls installed within the worked-out
28 FMSHRC 505

area that restricted airflow. Id. at 743; Gov't Ex. 2. The temporary controls that allegedly
restricted airflow included check curtains in the crosscuts between the ~etup .rooms, a curtain in
the headgate dogleg, and the widerc~t in the intersection of the No. I headgate entry and the No.
2 setup room. 25 FMSHRC at 751. Citation No..7143396 alleged that PJateau violated section
75.370(a)(l) because the temporary controls were left intact after retreat mining commenced but
were J;J.ot shown on the longwall start-up ventilation plan approved on July 7, 2000. Id. .at 757;
Gov't Ex. 4. Plateau challenged Citation Nos. 7143395 and 7143396, and the matter proce¢ed
to hearing before Judge Manning.
As to Citation No. 7143395, the judge determined that Plateau was not controlling air
passing through.the gob.so as to continuously dilute and move methane-air mixtmes and .other
gases from the gob into the bleeders as required by.section 75.334(b)(l). 25 FMSHRC at.7:45,
763. The judge fowid that the Secretary failed to prove two of three reasons that she argued
demonstrated a violation of the standard, namely, that Plateau was improperly djstributing air
through the gob (id. at 750-51), and that temporaryventilatjon controls restricted air flow in the
gob (id. at 751-53). The judge determined, however, that the Secretary proved a violation of
section 75.334(b)(1) because the ventilation system was.overextended and could not handle the
levels ofmethane liberated. Id. at 751. In so concluding, the judge relied upon ,evidenc~ that. .
methane levels increased (id. at 746-47), that the measuring point under section 75.323(e)
showed artificially low methane,readi,ngs (id. at 748-49), and that.the accident was caused by the
ignition of a small pocket of methane-air mixture that h~ accumulated on the headgat~ side of.
the rubble ZOJ?.e. Id. at 753-54. The judge further concluded that the.operator could violate
section 75.334(b) even if it complied with its ventilation plan, and that.Plateau should have been.
on notice that its bleeder system was not functioning properly on July 3 L Id. at 746. 'J:'.he j~e
held that the violation was S&S and assessed a civil penalty of $25,000, ~e amount proposed by
the Secretary. Id. at 757, 763.

As to Citation No. 7143396, the judge determined that Plateau had violated section
7 5 .370(a){l) by failing to comply with its ventilation plan but determined.that the violation was
not S&S. 8 Id. at 758-60. In so holding, the judge rejected the Secretary's theory that two of the
three temporary ventilation
controls, namely, the curtains in the setup rooms
and the curtain in
.
.
the dogleg, violated Plateau' s ventilation plan. Id. at 758. However, he agreed that the undercast
violated the ventilation plan because it functioned as a regulator, and Plateau had failed to seek
modification of the plan to include the undercast. Id. at 759. The judge.assessed a penalty of
$1,000 rather than the penalty of $20,000 proposed by the Secretary. Id. at 760, 763; Pet. for
Assess. ofPen.

8

Jn concluding that the violation was not S&S, the judge determined that the Secretary

failed to prove that Plateau's failure to completely remove the widercast contributed to the ·
explosions. 25 FMSHRC at 760.
28 FMSHRC 506

II.

Disposition
A.

Citation No. 7143396. Section 75.370(a)(1)9

Plateau argues that the judge erred in finding a violation of section 75370(a)(l) because
Plateau's ventilation plan did not depict the undercast. P. Br. at 30-33. It asserts in part that
there is no evidence that the undercast inhibited airflow. Id. at 31. Plateau submits that the
judge's finding that the Undercast should have been shown in the ventilation plan as a regulator is
also erroneous because the undercast did not function as a regulator. Id. The Secretary responds'
that the°judge's finding of violation should be affirmed. S. Br. at 45-50.
Section 75.370(a)(l) provides in part that an "operator shall develop· and follow a
ventilation plan approved by the district manager." 30 C.F.R. § 75.370(a)(l ). A ventliatiori plan
is required to specify the "location of ventilating devices such as regulators, stoppings and
bleeder connectors used to control air movement through the worked-out area." 30 eF.R.
§ 75.334(c)(4); see also 30 C.F.R. § 75.371(bb).
The lllldercast was located inby the Iongwall shields at the intersection of the No. 1
headgate entry and the No. 2 setup room. 25 FMSHRC at 742; Tr. 51, 70. The undercast was
part of the approved ventifation plan during longwall setup and continuous ininer development in
the D-3 panel and was originally constructed to separate air coursing into the No. 2 setup room
from air coursing over the undercast. Tr. 736, 1035-36; J. Ex. 3. The amended ventilation plan,
which was approved on July 7, 2000 and applied ·to the startup oflongwall mining in the D-3
panel, did not include the undercast. 25 FMSHRC at 758; S. Br. at 46; Tr. 110-12; Gov't Ex. 5;
Jt. Ex. l .
We conclude that the judge erred in determining that Plateau should have sought to
modify the July 7 ventilation plan to include the undercast as a ventilation device used to control
air movement through the worked-out area. 25 FMSHRC at 759. It is undisputed that Plateau
created a 3 by 4 foot hole in the undercast in order to allow water and air to travel through the
undercast. 10 Id. at 759; Tr. 496, 620, 1038-41. It is also undisputed that MSHA's computer
simulations showed that, as a statistical matter, the breached undercast would have no significant

9

Commissioner Jordan dissents from Part II.A of this opinion. See slip op. at 20-22.

10

At the time of the citation, MSHA mistakenly believed that the hole in the undercast
was smaller than 3 feet by 4 feet. Tr. 620, 675, 1321. MSHA stated in part that the undercast
had been "left intact" in the citation issued to Plateau for failing to include the undercast in its
July 7 ventilation plan. Gov't Ex. 4.
28 FMSHRC 507

effect on the movement of air through the worked-out area. 11 Tr. 633-35, 638, 1184, 1321; Gov' t
Bxs. 28, 29. Moreover, it is widisputed that the breached widercast no longer functioned as an
undercast to separate air courses. 25 FMSHR.C at 759; Tr. 192, 496, 1041-42, 1267.
Accordingly, the breached undercast no longer constituted a ''ventilating device[] ... used to
control air movement through the worked-out area." 30 C.F.R. § 75.334(c)(4). 12
Furthermore, the judge erred in characterizing the breacped widercast as a regulator. 25
FMSHRC at 759. The Commission has recofYJ,ized that the term ''regulator" means "a door, of
any size,- located in a stopping'' which "can be opened or closed.a s needed." VP-5 Mining Co.,
15 FMSHRC 1531, 1532 n.3 (Aug. 1993) (citing.Am. Geological Institute, Dictionary ofMining,
Mineral, and Related Terms ("DMMRT') 910 (1968); see also DMMRT 451 (2d .ed. 1997)
(''Regulators are usually set in doors as adjustable, sliding partitions that can be varied to the
desired opening."). The breached undercast had no such capability of adjustment. In fact, during
a ventilation technical evaluation of the D-3 panel that took place on July 26, five days before the
accident, MSHA Field Office Supervisor Gene·Ray took oxygen and methane readings at the
breached undercast without recognizing the breached undercast as a regulator that should have
been included in Plateau's ventilation plan. Tr. 487-88, 494-:-96, 865, 873, 875-7~.
Accordingly, because the breached undercast did not function as a ventilation device that
controlled air through the worked-out ar~ we reverse the judge's determination that Plateau
violated section 75.370(a)(l) by failing to seek modification of its pJan to allow the breached
widercast to remain in place. We therefore vacate Citatio:q No. 7143396 ~d the penalty assessed
by the judge.

B.

Citation No. 7143395. Section 75.334(b)(l)

Plateau argues that its bleeder system complied with the requirements of section
75.334(b)(l) and that the judge erred in finding a violation. P. Br. at 13, 18-19. It maintains that
the judge erred in interpreting:the.standard to prohibit methane accumulations in a gob, and that
the judge's conclusion that its ventilation system was overextended is not supported by
substantial evidence. Id. at 13-30. Plateau asserts that the judge also erred by relying upon a
misinterpretation of section 75.323(e) and in concluding that a violation of section 75.334(b)(l)

11

Although two ofMSHA's witnesses stated that they believed the undercast would have
impacted airflow, they acknowledged that the computer simulations did not show a significant
impact on airflow caused by the breached undercast Tr. 635, 1321.
12

Our dissenting colleague effectively inteiprets the regulatory language that a plan is
required to specify devices "used to control air movement" to mean that a plan must depict any
device that might affect.air flow, even to an insignificant degree. Slip Qp. at 21-22. Such an
overly broad interpretation essentially ignores the "used to control air movement" language and
would appear to encompass within the regulatory parameters such things as mining equipment
left in an area that might have a de mini.mus impact on airflow.

28 FMSHRC 508

could exist even if the operator complied with its ventilation plan. Id. at 18-23, 26. Finally,
Plateau submits that section 75.334(b)(l) does not provide criteriaJor determining the
effectiveness of a bleeder system, and that the judge's finding that Plateau knew or should have
known that its system was not functioning effectively was not supported by substantial evidence.·
Id. at 14, 24-25, 26.
The Secretary responds that the judge's determination that Plateau violated section
75.334(b)(1) should be affirmed. S. Br. at 50. She states that the judge properly accepted her
in:terpretation·of the standard that methane must not be allowed to accumulate in the gob, and
that such an interpretation is supported by the standard's plain language, the legislative history
and purpose of the underlying statutory provision, and Commission precedent. ·1d. at 14-23. · The
Secretary maintains that the judge properly determined that a violation of section·75 .334(b)(1)
could exist even if an operator were in compliance with its ventilation plan and that the
operator's contrary contention would render section 75.334 superfluous. Id. at 23-26:: She ···
submits that the judge did not misinterpret, or even interpret, section 75.323(e} and properly
relied on the standard in detennining that the operator violated seetion 75.334(b)(l). Id. at 2632. The Secretary asserts that substantial evidence supports the judge's findings that the operator
violated section 75.334(b)(l) artd that the operator had notice that the bleeder system was not
functioning properly. Id. at 32-45.
·
Section 75.334, entitled, "Worked-out areas and areas where pillars are being recovered,'?
sets forth, in part, ventilation requirements for such areas, the circumstances under which such
areas must be sealed, and ventilation plan requirements. 30 C.F.R. ·§ 75.334. -Section ·
75.334(b)(l) requires that during pillar recovery, a bleeder system shall be used "to control the
air passing through the area and to continuously dilute and move methane-air mixtures ... from
the worked-out area away from active workings and into a return air course or to the surface of
the mine." 30 C.F.R. § 75.334(b)(l). Section 75.334 is derived from section 303(z)(2) of the
Mine Act, 30 U.S.C. § 863(z)(2). The purpose of section 303(z)(2) of the Mine Act "is to require
bleeder systems continuously to dilute, render harmless; and carry away methane effectively
within the bleeder system and to protect active workings from the hazards of methane
accumulations." RAG Cumberland Res., LP, 26 FMSHRC 639, 647 (Aug. 2004), affd sub nom.
Cumberland Coal Res., LPv. FMSHRC, No. 04-1427, 2005 WL 3804997 (D.C. Cir. Nov. 10,
2005) (unpublished).
The Commission has recognized that although section 75.334(b)(l) does not literally set
forth a requirement that a bleeder systeni shall function effectively, such a requirement is implicit
in the standard's language and underlying purpose. Id. Thus, consistent with its underlying
statutory purpose, the Commission has read section 7 5 .3 34(b)(1) to require a bleeder system ''to
control air passing through the area and continuously to dilute and move methane-air mixtures
away from active workings and into a return or to the surface in ·a n effective nianner." Id. That
is, "a bleeder system must effectively ventilate the area within the bleeder syStem and jJrotect
active workings from the hazards·ofmethane accumulations." Id.
· :
· ·

28 FMSHRC 509

Section 75.334(b)(l) is broadly worded, and the concept of ..effectiveness" is a general
one. As the Commission has previously observed, however, "[m]any st.andards must be '.simple
and brief in order to be broadly adaptable to myriad circumstances."' Alabama By-Prodf:'Cls
Corp., 4 FMSHRC 2128, 2130 (Dec. 1982), quoting Kerr-McGee _Corp., 3 FMSHRC 2496, 2497
(Nov. 1981). Nevertheless, such broad standards must afford reasonable notice of what is
required or proscribed. Alabama By-Products, 4 FMSHRC at 2129. When faced with a
challenge that a safety standard fails to provide adequate notice of prohibited or required
conduct, the Commission has applied an objective standard, the ''reasonably prudent person
test."13 BHP Minerals_Int'/ Inc., 18 FMSHRC 1342, 1345 (Aug. 1996). The appropriate test "is
not whether the operator had explicit prior notice of a specific promoition.or requirement, but
whether a reasonably pmdent person familiar with the mining industry and tb.e protective
purposes of the standard would have r~gnized the specific prohJoition or requirement of the
standard." Ideal Cem.ent Co., 12 FMSHRC 2409, 2416 (Nov. 1990). The Commission has
recognized that various factors that bear.upon what a reasonably pmdent person would do
include accepted safety standards in the field, considerations unique to the ~g industzy, and
the circumstances at the operator~s mine. BHP, 18 FMSHRC at 1345.
Commissioners are evenly divided regarding .whether the judge correctly determined that
Plateau violated section 75.334(b)(l). Commissioners Jordan and Young would ~ . the .
portion of the judge's decision holding that Plateau violated section 75.334(b)(l). Chainnan
Duffy and Commissioner Suboleski would vacate the judge' s determination of violation and
remand for further proceedings. The effect of the split decision is to allow the judge' s
affirmation of Citation No. 7143395 and assessment of penalty to stand. See Pa. Elec. Co., 12
FMSHRC 1562, 1563-65 (Aug. 1990), affd on other -grounds, 969F.2d1501 (3d Cir. 1992).
The separate opiniollS ofthe Commissioners follow.

Ill
Separate Qpinions of the Commissioners
Commissioner Young, in favor of affirming the judge's determination that Plateau violated
section 75.334(b)(l):
A.

futeiplay between 30 C.F.R. §§ 75.370(a) and 75.334(b)

Although the Commission has determined that Plateau did not violate 30 C.F.R.
§ 75.370(a)(l) by failing to seek.modification of its ventilation plan to incorporate the breached

In RAG Cumberland, the operator did not argue that it failed to r~eive adequate notice
that section 75.334(b)(l) applied to the cited conditions but merely submitted that reading the
standard to require adequate dilution could ''potentially deprive operators of
process notice."
26 FMSHRC 647 n.14. In contrast, Plateau has raised the issue of notice. P. Br. at 14, 24-25,
26.
13

due

28 FMSHRC 510

undercast, I would reject Plateau' s assertion that such a holding precludes the Commission from
finding that Plateau violated section 75.334(b)(l).
Ventilation regulations and ventilation plan provisions were designed to recognize that
mine ventilation is a dynamic process. The provisions of section 75.334 set forth a level of
safety required at all mines, while ventilation plan provisions specify precautions and practices
applicable to the particular conditions at a mine. 57 Fed. Reg. ·a t 20,868, 20,900 (May 15, 1992).
Such plan provisions are not limited to implementing the substantive provisions of the
Secretary's ventilation regulations, but may provide for protection·in addition to·the standards
they implement. See C. W. Mining Co., 18 FMSHRC 1740, 1745 (Oct. 1996) (stating that roof
control plan provisions are not limited to implementing regulations).
The Commission ha8 previously held that compliance with a mine's roof or dust c.ontrol
plan does not preclude a .finding of violation of the underlying roof or dust control regulations.
See, e.g., Southern Ohio Coal Co., 10 FMSHRC 138, 140-4~ (Feb. 198~}(co~cludirtg that
compliance with an approved roof control plan is not controlling for purposes of detern:iining
compliance with roof control regulation); Utah Power & Light Co., 12 FMSHRC 965, 969 (May
1990), aff'd, 951F.2d292 (10th Cir. 1991) (concluding that compliance with the terms ·o f a dust
control plan does not preclude a finding that an operator vi;olated the terms of a dust control
regulation). Similarly, an operator cannot avoid a finding of violation of section 75.334(b){l) by
arguing that it was complying with the provisions of its ventilation plan. Rather, an operator is
required to comply with ventilation plan provisions, which encompass conditions specific to a
mine, in addition to the more general requirements of section 75.334, which establish a general
baseline which all mines must meet. Conditions in a mine inay change uneXpectedly so that · ·
compliance with specific ventilation plan provisions may·not necessarily assure that the general
protections imposed by ventilation regulations are being met. Thus, an operator is reqtiiied to
address its bleeder system if the bleeder system is not effectively controlling air though the
worked-out area as required by section 75.334, even if the operator complying with the teniis
of its ventilation plan. Tr. 698. Accordingly, I would affirm the judge' s determination that an
operator may be found to have violated section 75.334(b)(1) even though it has not violated its
ventilation plan. 25 FMSHRC at 746.

is

B.

Violation of section 75.334(b)(l)
1.

Substantial eyidence

I would affirm the judge's determination that Plateau violated section 75334(b){I). I find
substantial evidence in the record to support the judge's conclusion that Plateau's bleeder system
failed to effectively ventilate the worked-out area of the D-3 panel as required by section
75.334(b)(l). In particular, as discussed below, in the context of unusually challenging mining.
conditions, the mine·ventil~tion system was operating with a "limited mine ventilating potential,"
methane levels were increasing and had exceeded a regulatory limit at MPL ~ 1. Additionally,
readings at MPL Bl were artificially low. The record supports the judge's conClusion that the

28 FMSHRC 511

bleeder system was not adequate to overcome these challenges as Plateau proceeded to increase
production, and that the resultant conditions led to an ignition, several explosions and multiple
fatalities.
The judge' s findings of fact must be analyzed through the lens of the statutory substantial
evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). Under this test, the Commission may not
"substitute a competing view of the facts for the view [an] AU reasonably reached." Donovan
ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d 8~, 92 (D.C. Cir. 1983). The fact that evidence
in the record may support a position ~verse to the judge's decisio~ is not determinative. Rather,
the Commission' s review is statutorily limited to whether the judge's findings of fact were
supported by " ' such relevant evidence as a reasonable mind might accept as adequate to support
[the judge's] conclusion."' See, e.g., Jim Walter Res. Inc., 19 FMSHRC 1761, 1767 n.8
(Nov.1997) (citingRochester&Pittsburgh Coal Co., 11FMSHRC2159, 2163 (Nov. 1989)).
The Commission has recognized that it is for the judge in the first instance, not the CommiS;Sion
on review, to make inferences and findings based on record evidence. Harlan Cumberland Coal
Co., 2.0 FMSHRC 1275, 1283 (Dec. 1998).
Mining the D -3 panel presented a number of extraordinary challenges. Mlnllig II.berated
large quantities of methane and released liquid hydrocarbons, and the liquid hydrocarbons in.tum
created hydrocarbon vapors, 25 FMSHRC at 739, 740-41. .The depth of the.ground cover over
the coal seam resulted in stresses during mining, such as roof and rib bounces. Id. at 740-41 .. In
addition, Plateau used a two-entry system to develop the D-3 panel headgate entries. Id. at 739.
A two-entry system.provides fewer entri~ through which air _c an flow than a system with a
greater number of entries. T~. 62, 608-09, 1207. This increases the demands placed o~ the
available .entries. Tr. 62; . This combination of factors can compound the hazards in .~e mine.
A little more than two years prior to the subject ~ccideIJ.t, the mine had experienced an explosion
in the D-1 panel, which also used a two-entry system, after a roof fall in the worked-out area
ignited methane. 25 FMSHRC at 739; Tr. 37-38.
Ventilating the D-3 panel also presented challenges that had not previously been
experieneed at the mine. The D-3 panel was the first panel at.the mine that would not be
separated from the previous panel by a solid barrier of coal. 25 FMSHRC at 740-41. Rather, the
D-3 panel immediately abutted the D-2 panel. Id. at 739. Because of this design, the No. 2
headgate entry of the D -2 panel served as the sole tailgate entry for the D-3 panel. Gov't Ex. 31,
App. I. The No. I tailgate entry of the D-3 panel was sealed as part of the gob ofthe D-2 panel.
Id. The No. 1 entries of the D-1 and D-2 panels had not been similarly sealed at the time that
those panels had been mined. Tr. 12.07. Thus, as Plateau's witness, Robert Deric~ an expert in
ventilation and mine fires, testified, the ''D-3 was really the beginning of the challenging future."
Tr. 1207-08. 1

1

The record shows that the estimated methane capacity of the D -3 panel was based on .
the range of concentrations that the mine experienced on the D-1 and D-2 panels. Tr. I 001-02.
Given the critical differences between the panels, as discussed above, it would appear that
28 FMSHRC 512

Confronted by these difficult circumstances, it appears that there was a "limited mine
ventilating potential." Gov' t Ex. 2 (Citation No: 7143395); Tr. 106-07. Kerry Hales, Plateau' s
mine manager (Tr. 731-32) and Stephan Jones, one of the mine's engineers (Tr. 769), agreed that
the mine fan was operating at capacity and that no additional air could be added to the system.
Tr. 762, 799. In addition, the regulators at MJ>Ls 7 and 8, the point where all airflow left the gob
and entered the No. 3 bleeder entry, were wide open. Tr. 606, 798-99. Thus, there was no
capacity to induce more airflow through those regulators. Tr. 606, 799. Mine ·M anager Hales
acknowledged ~t with~ut the gob vent boreholes or horizontal degassing syStem'in place, the
system had reached its maximum capacity for methane dilution and dispersal.2 Tr. 762.
It is also undisputed that in the days prior to the subject accident methane liberation
increased at the D-3 panel as longwall mining increased. 25 FMSHRC at 746. On July 19, three
days after mining began on the panel, methane measured between
and 1% at MPLs 7 and 8.
25 FMSHRC at 746; Gov't Ex. 31at27, Fig. 3. Between July 25 and 30, methane levels at ·
MPLs 7 and 8 averaged around 1.5%, although levels reached 3% on July 24 at MPL ·8 . 25
FMSHRC at 746; Gov't Ex. 31, Fig. 3. On July 31, methane at MPL 7 was measured between
·
2.5 and 3.0%, and was measured at 3.5% at MJ>L 8. Id.

o:s%

Methane liberation also increased at MJ>Ls Bl, B2, and B3, the location where airflow
was measured from the D seam bleeders and the D-1 tailgate. Gov't Ex. 31 at 20,. 27. :On July
18 and 19, methane was measured at MJ>L Bl, MPL B2 and MPL B3 at approximately 2.5
million cubic feet
day ("CFO''). 25 FMSHRC at 747; Gov't Ex. 31at27. On July.25 and-26,
2000, methane liberation was measured at ·approximately 6.34 million CFD, and on July 31,
methane liberation had increased to over 7 million CFD. 25 FMSHRC at 746-47; Gov't Ex. 31
at 27.

per

methane liberation and the capacity of the panels would be inappropriate for comparison.
Moreover, as noted by the Secretary (S. Br. at 43), there was no evidence admitted regarding the
reliability ofthe studies used by Plateau to estimate capacity. Although a finding regarding the
methane capacity of the D-3 panel would have been relevant, given th,is evidence, the judge' s
failure to make such a finding is of no avail.
2

While my colleagues contend that the ventilation system was operating well within its
capacity (slip op. at 26-28 & n.7), I view this admission by Plateau' s mine manager to be highly
probative and amply supported by the record. It also appears that Plateau did not promptly cease
production, but that the exceedances occurred while production was idle and prompted no
investigation or action by Plateau. See Gov't Ex. 31at21, 30; Tr. 103, 107, 164, 762, 793; 802,
812.
28 FMSHRC 513

There were also increased methane readings at MPL Bl, the section 75.323(e) measuring
point.3 Gov't Ex. 31, Fig. 3. On July 19, methane at MPL Bl measured between 0.5% and
1.0%. Id. On July 21, methane averaged between 1 and 1.5% at MPL Bl. Id.; 25 FMSHRC at
746. On July 31, 2000, the action level at MPL Bl was exceeded on at least 2 occasions. 25
FMSHRC at 748; Gov't Ex. 31 at 21 and Fig. 3; Tr. 164, 1252; P. Br..at 24. The first
exceedance occurred at approximately 2:48 a.m. and lasted 11 minutes, while the second
exceedance occurred at.3:33 a.m. and lasted approximately 40 minutes. Tr. 164; Gov' t Ex. 31 at
21 . .It is undisputed that, although both measurements exceeded the action level of 1.95%, one
measurement also exceeded 1he 2% limit set forth.in section 75.3~(e). 25 FMSHRC at 746;
Gov't Ex. 31, Fig. 3; P. Br. at 19-20.
.
.
The judge credited the testimony of John Urosek, the chief of the ventilation division in
MSHA' s Pittsburgh Safety and Health Technofogy Center (Tr: 533-34), that the methane
readings obtained at MPL B 1 were artificially low as the result of fresher air leaking into the
system. 25 FMSHRC-at 748. Urosek testified that on July31, methane at.MPLs 7 and 8
averaged about 3%. Id.; Tr. 598-99, 655. He stated that the methane measured was less than 2%
by the time the airflow reached MPL B 1 because the airflow from the worked-out area was
diluted before it reached MPL B 1. Tr. 599-601; 25 FMSHRC at .748. Urosek explained that
there was a sigpificantamount of leakage between :the No. 1 bleeder entry, which brought intake
air to the sump pump, and the No. 2 bleeder entry which carried air from the gob to MPL B 1. 25
FMSHRC at 748; Tr. 599-601, 641, 1370-74. I see no.basis to overturn thejuqge' s credibility
determination. See Fanner v. Island Creek Coal Co,, 14 FMSHRC 1537, .1541 (Sept. 1992) (a
judge's determinations may not be overturned lightly); Penn Allegh Coal Co., 3 FMSHRC 2767,
2770 (Dec. 1981) {a judge' s credi"bility determinations-are entitled to gr~ weight).
The judge's findings are also supported by other substantial evidence in the record.
MSHA Supervisory and Special Investigator Gary Wirth estimated the amount of leakage to be
approximately 50,000 CFM. 25 FMSHRC at 748; Tr. 101; Gov't Ex. 31at22. In addition,
intake air that came from the No. 2 headgate entry through MPLs 5 and 6 provided a sweetener
by entering the No. 3 bleeder entry without ventilating the worked-out area. Tr. 48-50; 25
FMSHRC at 748. Wirth also testified that the intake air that coursed up the No. 2 tailgate entry
traveled through MPLs 7 and 8 without ventilating the worked-out area, and thus provided a
sweetening effect. Tr. 81-84.
Based on the record, the judge found that if this sweetening effect had not occurred,
methane levels at the .75.323(e) measuring point would have been above 2% on a fairly regular
basis beginning on July 30. 25 FMSHRC at 748; Tr. 50, 83, 100-01, 601-02. Urosek testified
that after the airflow traveled through MPLs 7 and 8, it was diluted to a range between 2.3 and

Section 75.323(e) provides in part that the concentration ofme~ane in a bleeder split of
air immediately before the air in the split joins another split of air shall not exceed 2%. 30
C.F.R. § 75.323(e).
3

28 FMSHRC 514

2.6%, and that if there had been no leakage, readings at MPL B 1 would also have been between
2.3 and 2.6%. 4 25 FMSHRC 748; Tr. 599.

at

Monitoring the methane levels at a section 75.323(e) measUring point is critical to
evaluating the effectiveness of a bleeder system. 25 FMSHRC at 748-49; Tr. 1370. As Urosek
also testified, the readings at MPL Bl were critical to evaluating the effectiveness of the D-3
panel's bleeder system because the amount of methane at such locations indicates whether there
is enough airflow in the system. Id. He explained that more than 2% methane indicates that the
system needs to be changed and either needs more airflow or less methane. Tr. 595, 652, 137071. Urosek stated that section 75.323(e) measuring points are designed so that an operator can
detect small changes or trends of increasing methane and make changes and adjustments before
the 2% level is exceeded. Tr. 1389. He observed that, prior to the accident, measurements at
MPL B 1 showed a trend of increasing methane indicating that adjlistmeilts and changes needed
to be made. Tr. 1389~90. Plateau' s president, John DeMichiei, acknowledged that if methane
exceeded 2% at a 75.323(e) evaluation point, the situation might reflect an inadequate bleeder
system and should be addressed. Tr. 1288. Plateau's general manager at the mine, Charles
Burggraf, also acknowledged that if methane exceeded 2%, the mine "would have to shut down
and make corrections." Tr. 979, 1052. Of course, any correction would have required Plateau to
investigate the exceedance of the 2%·methane level, an occurrence that should have borne some
urgency, given the increasing methane trend and the challenging circumstances involved in
mining the D-3 panel. Nonetheless, it appears that Plateau did not take measures to investigate
the cause or effect of the exceedanc·e of the 2% limit at MPL B 1, or to make adjustments to its
system. Tr. 762, 802.

In fact, it appears that Plateau proceeded to accelerate production, as planned, which
could only increase, rather than decrease, methane levels. It is undisputed that the liberation of
methane spiked at times that production was high and decreased during idle periods. 25
FMSHRC at 746; Gov't Ex. 31at28, Fig. 4; Tr. 89, 195. Mine Manager Hales and Mining
Engineer Jones testified that while the increasing trend in methane in late July had been noticed,
the only response that the·mine could take, given that maximum v~tilation capacity had been
reached, was to slow down or cease production. Tr. 762, 793, 802, 812. Nonetheless, ·P lateau
4

The last recorded airflow at MPLs 7 and 8 prior to the accident was approximately
185,600 CFM of air. Gov't Ex. 31 at 22. Wirth testified that three small splits entered the
bleeder system but did not ventilate the·gob, namely, a split from the No. 2 intake entry that
entered the bleeder system at MPL 5 (5,200 CFM), and at MPL 6 (14,500 CFM), and a third split
of intake air, approximately 65,000 CFM, which wa8 directed into the No. 1 bleeder entry and
measured 15,000 CFM when it reached the pump (50,000 CFM). Gov't Ex. 31at22; Tr. 10001; Gov' t Ex. 7. The total airflow for this worked-out·area(MPLs St 6, 7, and 8 and the pump)
was 220,300 CFM of air. Approximately 331,600 CFM of air was measured exiting from MPLs
Bl, B2, and B3. Gov't Ex. 31 at 22. The Secretary submitted that approximately 111,000 CFM
of air that was not used to ventilate the gob and was not acknowledged in the ventilation plan,
was leaking into the bleeder system. See S. Br. at 30-31 n.10; S. Post-Hr' g Br. at 12-13.
28 FMSHRC 515

increased production during the days preceding the accident. Gov't.Ex. 31, Fig. 4; Tr. 89-90" 98.
Up until approximately July 30, production averaged about four longwall passes per day shift and
one to one-and-a-half passes per evening shift. Tr. 89; Gov't Ex. 31, Fig. 4. On July 30, there
were eight passes mined during the day shift and four passes durjng the evening shift. Id.. On
July 31, there were six-and-a-halfpasses mined during the day shift ap.d, during the evening shift
in which the accident occurred, there were three-and-a-half passes mined. Id.
As the judge acknowledged, factors that must be considered in evaluating the readings at

MPL ·B l include the. approximately 8,000-foot distance between MPL Bl and the point where
ventilation from the gob entered the bleeder entries, as well as significant leakage outby the gob.
25 FMSHRC at 749. Such evidence does not make consideration of the readings at MPL Bl
erroneous,.however. Rather, these facts reinforce the judge's conclusion that ''the readings at
MPL B 1 gave a false impression that Plateau's bleeder system was functioning properly when it
actually was not." Id. That is, readings at MPL B 1 were a critical indicator that th~ bleeder
system was.ineffective because actual methane levels at MPL Bl were likely to be higher than
those recorded at MPL B 1 after dilution.5
As previously discussed, Plateau's mining of the D-3 panel limited the system's ability to
effectively control and continuously dilute and move unanticipated methane-air mixtures. The·
judge found that when an operator can no longer continuously dilute and move methane from the
gob; there is a high risk that an explosive air-mixture will accumulate in the gob, and that such an
accumulation developed at the mine on July 31. 25 FMSHRC at 749.

I agree with the judge that the occurrence of the accident was an additional factor
establishing a violation of section 75.334(b)(l). Id. at 753. The Commission has long
recognized that the ''fact of an accident ... does not by itself necessarily prove or disprove the
existence of a violation." Old Ben Coal Co., 10 FMSHRC 1800, 1804 n.4 (Oct. 1982);
Consolidation Coal Co., 20 FMSHRC 227, 240 (Mar. 1998) (Commissioners Riley and
Verheggen), aff'd, 1999 WL 335777 (4th Cir. 1999). However, the Commission has explained
that even though a standard may be violated regardless of whether an accident has occurred, an
accident may "sometimes shed light on an unsafe situation that had escaped previous notice or
citation." Old Ben, 10 FMSHRC at 1804 n.4. Although an accumulation of methane may not, in
5

I disagree with my colleagues' conclusion that the judge erred by failing to give primary
consideration to measmements at MPLs 7 and 8 in determining the bleeder system's efficacy
under section 75.334(b)(l). Slip op. at 28-29. First, it is not clear that the readings atMPLs 7
and 8 provided a materially more accurate picture of methane in the gob given that those readings
wer~ diluted by intake air from the No. 2 tailgate entry. Tr. 81-84. Moreover, my colleagues
effectively deem ~e readings at MPL Bl irrelevant, contrary to the·inherent significance ofMPL
Bl as the measming point established by section 75.323(e) and its ~derlying statutory provision
as an indicator of the effectiveness of the bleeder system. The 2% limit set by section 75.323(e)
was exceeded at MPL Bl even though the judge found leakage diluted the methane reading at.
that measuring point.

28 FMSHRC 516

and of itself, establish a violation of section 75.334(b)(1 ), a small explosive methane-air mixture
near the rubble zone constitutes additional evidence·demonstrating that Plateau's bleeder system
was unable to effectively control the methane-air mixtures and continuously dilute and move
such mixtures from the worked-out area away from the active workings.
hi s~ as methane levels were increasing and had exceeded the 2% limit at MPL B1, the

operation and evaluation of the mine ventilation system was impeded both.by a limited potential
for effectively diluting and dispersing the methane and by air flows which produced artificially
low readings at MPL Bl. Given these challenging conditions at the mine, I conclude that
substantial evidence supports the judge's detemlination that Plateau's bleeder system was not
effectively ventilating the worked-out area of the D-3 panel as required by section 75.334(b)(l).
2.

Notice

Substantial evidence in the record supports a determination that a reasonably prudent
person familiar with the mining industry and the protective purposes of section 75.334(b)(1)
would have recognized that Plateau's bleeder system failed to control and continuously dilute
and move methane-air mixtures from the worked-out area·away from active workings as required
by the standard. 6 A reasonably prudent person, having knowledge of the circumstances of
Plateau's mine, would know that the mine was operating at its maximum ventilation capacity
under difficult mining conditions. Mine ·Manager Hales and Mining Engineer Jones agreed that
the mine fan was operating at capacity and that no additional air could·be added to the system,
and that there was no further capacity to induce more airflow through the regulators at MPLs 7
and 8. Tr. 606, 762, 799. Mine Manager Hales acknowledged that·the system had reached its
maximum capacity for being able to dilute and carry away methane without the gob vent
·
boreholes or horizontal degassing system in place. Tr. 762. ·
Moreover, a reasonably prudent person, considering the standard's requirement that a
bleeder system must effectively ventilate the area within the bleeder system and protect active
workings from the hazards of methane accumulations, would have recognized a disruption in the
effectiveness of the system. The disruption was manifest in the increasing levels of methane and
an exceedance at the section 75.323(e) measuring point. Jones and Hale testified that they were
aware of an increasing trend in methane in late July. Tr. 762, 793, 802, 812. Hales
acknowledged that methane readings ''were a little high/' and that they had been "struggling with
it for a few days, trying to reach the next gob vent borehole," and that reaching the borehole
6

Although the judge did not explicitly apply the Commission's "reasonably prudent
person test," he concluded that Plateau should have been.on notice that its bleeder system was
not fimctioning properly on July 31. 25 FMSHRC at 746. Contrary to my colleagues' assertion
that this conclusion injects subjectivity into the process (slip op. ai 31 ), ·the judge merely inferred
constructive notice from the circumstances. This is not improper. See generally Dolese Bros.
Co., 16 FMSHRC 689, 693-94 (Apr. 1994) (affirming finding of violation upon application of
reasonably prudent person test where judge in part inferred constructive knowledge).
28 FMSHRC 517

would have alleviated the ''methane problem." Tr. 752-53. Hales testified that the increasing
trend in methane was of particular concern because the ~was at full capacity. Tr. 762. Hal~s
and Jones testified that the operator,s only option was to slow do~ or cease production to let the
methane bleed off. Tr. 762, 812. Nonetheless, .even with this information, the operator i~creased
production and did not take the corrective action required. Tr. 88-90, 98, I 06-07; Gov't Ex. 31,
Fig. 4. Giv~ this evidence, I would reject Plateau' s assertion that it failed to receive adequate
notice that its bleeder system violated the requirements of section 75.334(b)(l). P. Br. 3:1~4,2425, 26.
3.

Significant and substantial

A violation is S&S if, based on the particular facts surrounding the violation, there exists
a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature. See Cement Div., Nat'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr.
1981). In Mathies Coal Co., 6 FMSHRC 1(Jan. 1984), the Commission further explained:

In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (1) the underlying viQlat,ion Qf a
mandatory safety standard; ,(2) a.discrete safety hazai:"d - 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 reasonab_le likelihood that the injury in questiQn
will be of a reasonably serious nature.
Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir.
1995); Austin Power, Inc. v. Secretary ofLabor, 861F.2d99, 103 (5th Cir. 1988) (approving
Mathies criteria).
I would reject Plateau's argument that its alleged violation of section 7.5.334(b)(l) is not
S&S because the events that occurred on July 31 were unlikely. PDR at 13 n.7; P. Br. at 12.n.8.
In effect, Plateau is arguing that the judge should have confined his consideration to whether an
injury-producing event was reasonably likely to occur during continued mining operations. The
"'operative time frame for determining if a reasonable likelihood of injury exists includes both
the time that a violative condition existed prior to the citation and the time that it would have
existed if normal mining operations had continued.,,, Bellefonte Lime Co., 20 FMSHRC 1250,
1255 (Nov. 1998) (quoting Rushton Mining Co., 11 FMSHRC 1432, 1435 (Aug. 1989))
(emphasis added); Elk Run Coal Co. , 27 FMSHRC 899, 905 (Dec. 2005). The conditions
creating the potential for injury occurred prior to the citation and,_in fact, resulted in multiple
fatal injuries. 25 FMSHRC at 739. Thus, the judge appropriately considered the violative
conditions that existed prior to the citation. Id. at 756-57.

28 FMSijRC 518

C.

Conclusion

For the foregoing reasons, I would affirm the judge's determination that Plateau violated
section 75.334(b)(l) and that the violation was S&S.

28 FMSHRC 519

Commissioner Jordan, in favor of affirming the judge's determinations that Plateau violated 30
C.F.R. §§ 75.334(b)(l) and 75.370(a)(l):
I agree with the reasoning and conclusions expressed in Commissioner Young's opinion
affirming the judge's determination that Plateau violated section 75.334(b)(l) and that the
violation was S&S. I also agree with his analysis affirming the judge's determination that an
operator may be found to have violated section 75.334(b)(1) even though it has complied with
the terms of its ventilation plan. However, I would also affirm the judge's ruling that Plateau
violated section 75.370(a), and therefore dissent from the majority's holding regarding that
citation.
Section 75.370(a)(l) provides in relevant part that an "operator shall develop and follow
a ventilation plan approved by the district manager." 30 C.F.R. § 75.370(a)(l). Sections
75.334(c)(4) and 75.371(bb) set forth an illustrative list ofventilation devices that must be
included in a ventilation plan based upon the device's function to control air through a workedout area. See 30 C.F.R. § 75.334(c)(4) (stating that a ventilation plan must specify the "location
of ventilating devices such as regulators, stoppings and bleeder connectors used to control air
movement through the worked-out area'' (emphasis added)); see also 30 C.F.R. § 75.371(bb). By
the regulations' plain language, if a ventilation device controls air through a worked-out area, it
must be included on a ventilation plan. The regulations do not set forth limitations on the types
of ventilation devices that must be specified, nor do they set forth limitations on the locations of
the ventilation devices. Thus, under the plain terms of the standards, if the breached undercast
controlled air movement through the worked-out area, it was required to be shown in the
ventilation plan. 1

In determining whether substantial evidence2 supports the judge's finding, it is therefore
important to keep in mind exactly what is and what is not relevant under this regulation.
Whether the undercast controlled air movement is dispositive; whether the undercast was

1

The undercast at issue here was not included in the ventilation plan. Gov't Ex. 4.

2

When reviewing a judge's findings of fact, the Commission must by statute apply the
substantial evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). Under this test, the Commission may
not "substitute a competing view of the facts for the view [a judge] reasonably reached.,,
Donovan ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d 86, 92 (D.C. Cir. 1983). The fact that
evidence exists in the record to support a party's position adverse to the judge is not
determinative. Rather, the Commission's review is statutorily limited to whether the judge's
findings of fact were supported by '"such relevant evidence as a reasonable mind might accept as
adequate to support [the judge's] conclusion.'" See, e.g., Jim Walter Res., Inc., 19 FMSHRC
1761, 1767 n.8 (Nov. 1997) (citingRochester&Pittsburgh Coal Co., 11FMSHRC2159, 2163
(Nov. 1989)).
28 FMSHRC 520

functioning as a regulator is not. 3 Whether the undercast had an impact on air movement is
pertinent; whether that impact was "significant'' is not. Consequently, the majority's rationale
for reversing the judge, slip op. at 7-8, is grounded on assertions that have nothing to do with the
plain meaning of the regulation at issue.
· ·
Substantial evidence supports the judge's conclusion that the breached undercast was
inhibiting the flow of air up the No. l headgate entry into the No. 2 setup room, although.it may
have done so to an insignificant degree. 25 FMSHRC 738, 759 (Dec. 2003) (AIJ); Tr. 11Z•l3,
118-19, 620, 638-39, l321. Testimony from·MSHA witnesses supports this conclusion. For
instance, MSHA official Gary Wirth stated that the overcast ''was still functioning to limit
airflow in that area and, therefore, played a role in inhibiting airflow on the headgate side in. the
worked-out area. . .. [T]hat three-by-four hole would not hav:e rendered t~t overcast completely
in effective [sic]." Tr. 112-13, 118. MSHA ventilation expert John Urosek, testified that the
overcast ''would impact the air flow on the headgate," T~. 620, and that ''the overcast,_ arid the
holes in the overcast . . . w:ould have impacted. We have that from experience.. .. [A hole in the
·
·
overcast] will control air flow." Tr. 638-39,
MSHA's ventilation staff expected the undercast to be removed, leavllig the area
completely open in accordance with the approved ventilation plan. 25 FMSHRc· at 759; Tr. ·11012; Gov' t Ex. 5; Jt. Ex. 1. Instead, Plateau retained the undercast and created a three-by-four foot
hole in it, to allow water and air to travel through it. 25 FMSHRC at 759. Although the
breached undercast may not have affected airflow in'the worked-out area to a sigmficant degree,
the area of the No. 1 headgate at the location of the breached undercast was less than completely
open. P. Ex. 3B. Thus, as the judge found, the operator was required to seek to modify its plan
to include the breached undercast. 25 FMSHRC at 759.
I reject Plateau' s argument that the judge' s determination of violation should be reversed
because there is no requirement to obtain MSHA approval of ventilation control devices that

3

The operator argues that the judge' s decision should be reversed because his ruling is
based on his finding that the undercast was a regulator, an issue not raised by the Secretary or
addressed by the parties below. P. Br. at 31. Although the parties did not litigate whether the
breached undercast acted as a regulator, they litigated whether the undercast affected airflow
through the worked-out area. See S. Post-Hr'g Br. at 29-31; P. Post-Hr'g Br. at 58-59. In
addition, as the Secretary argues, S. Br. at 48, the citation sets forth the Secretary' s position that
Plateau violated section 75.370(a)(l) because the undercast controlled air movement through the
worked-out area but was not depicted in the ventilation plan. Gov't Ex. 4. In additio~ ,Plateau
litigated whether the undercast controlled air movement. P. Post Hr'g Br. at 59 (''the breached
[undercast] had no effect on the ventilation of the worked-out area . .. . Thus the presence of the
breached [undercast] provided no support for a violation of the ventilation plan."). Thus, the
·
parties litigated the underlying basis for the judge' s determination.
28 FMSHRC 521

exist in the gob. 4 P. Br. at 31 . The parties do not dispute that the undercast existed in the
worked-out area. Id at 32. As discussed above, however, section 75.334(c)(4) and 75.371(bb)
require ventilation devices that control air through a worked-out area to be included in a ·
ventilation plan and do not set forth any limitations based on the location of a ventilation device.
Moreover, as the Secretary submits, S. Br. at 49, the purpose of the standard is to inform MSHA
of the locations of ventilation devic~ anc:I allow MSHA to decide whether to approve those
devices. Unauthorized changes in a ventilation plan can have unintended effects on ventilation. ·
25FMSHRC at 760. In short, the evidence put forth by Plateau regarding that the undercast was
in the gob and could not be maintained or examined, Tr. 1200, is irrelevant.
.

.

I also reject Plateau's argument that it should not have been cited for violating its
ventilation plan because MSHA inSpectors observed ~e breached undercast and failed to c~te it
as a violation of the ventilation piaii. The Commission bas refused to acknowledge estoppel as a
defense to a violation, holding that MSHA was not estopped from issuing a citation because the
operator relied onMSHA's previous actions. King Knob Coal Co., 3 FMSHR;C 1417, 1421-22
(June 1981); see also Emery Mining Corp. v. Sec'y ofLabor, 744 F.2d 1411, 1416 (l_Oth Cir.
1984). Rather, MSHA's failure to previously cite a disputed condition is appropriately
considered in the context of the operator'~ negligence. Here,._the judge noted that Inspector Ray's
tacit approval of the breached undercast supported a low negligence :finding. 25 FMSHRC at
759.
.
.
For the foregoing reasons, I respectfully dissent.

4

Tiie Secretary asserts that the Commission need not reach Plateau's argument that a
ventilation device in.a gob, effective or not, does not have to be in a ventilation plan,. because
Plate~ failed to raise the issue before the judge. S. Br. at 48-49. However, as Plateau contends,.
it appears that Plateau raised the issue before the judge. Tr. 1200; P. Post-Hr'g Br. at 61.
28 FMSHRC 522

Chairman Duffy and Commissioner Suboleski, in favor of vacating the judge's determination
that Plateau violated 30 C.F.R. § 75.334(b)(l) and remanding:
· ·
A.

Overview

This is a case in which MSHA had little evidence that the ventilation system was
malfunctioning, yet the mine experienced an explosion and fire. Prior to the first explosion, air
volwnes were above design levels and all measuring points were within expected ranges. The
explosion itself was caused by a very small amoui:i.t·ofmethane (50 cubic feet), a volume·that
would not be unexpected at the frfuge of the rubble zone. However, MSHA found what it
believed to be the causes of a distribution problem, near the headgate at the inby comer of the
gob, where the explosion was believed to have originated. This problem, which was alleg~ly
caused by a combination of a largely intact undercast, an un-removed check curtain, and a series ·
of check curtains in the set up rooms, combined to restrict air flow in this comer, and resulted in
a violation of section 75.334(b)(1 ). However, trial testimony showed that these obstnictions
were not present and MSHA' s primary case fell apart.

In the course of presenting that case, MSHA witnesses pointed out that the mine fan was
at capacity; that, as production increased from start-up at the longwall, methane levels were
rising; that the tailgate-side bleeder regulators were open as wide as possible to maximize air
flow across the face and gob; that it took a great deal of air to dilute the me~e level from the
face and gob to the 2% concentration limit specified at the point where the bleeder air enters .
another air stream; and that once, two shifts before the explosion, the.system's ability to dilute to
the 2% level, i.e., the bleeder-system capacity, had briefly be~ reached. Finally, MSHA testified
that Plateau's only recourse when it reached system capacity was to temporarily halt production.
The judge, rather than dismissing the case, used these circwnstantial facts to construct an
entirely new theory of the case since MSHA had.failed to prove that the ventilation system had
significant distribution problems. Moreover, he added a crucial element that directly
contradicted the testimony of the MSHA witnesses - that the volume of air in the gob was
inadequate. For the following reasons, we-find that the judge's analysis was incorrect and we
would remand to him for reconsideration of his decision.
B.

Section 75.334(b)(l)

We disagree with the conclusions reached by our colleagues, who would affirm the
judge's finding that Plateau violated section 75.334(b)(l). Our disagreements with the judge's
decision-lie in three areas. First, some of.the judge's factual· findings are not supported by the
record. In this regard, the judge failed to explain·or address conflicting evidence on several key
issues. Second, the judge drew conclusions or inferences that were not warranted by the
underlying facts.· Finally, the judge did not adequately address, under Commission precedent,
whether Plateau had notice that, under the Secretary's regulation, its bleeder system was in
violation because it was not moving and diluting methane in the gob area.
·

28 FMSHRC 523

Thes.e errors largely flow from the basis for the judge' s decision - that there was an
inadequate volume of air in the bleeder system. The theory of the judge' s decision stands in
contrast to the Secretary' s litigation theory - that volume was not the problem, but the air in the
system was not being distributed properly within the gob. Significantly, if the SC?cretaxy and the
judge cannot agree on the basis for determining whether the bleeder system was operating
effectively, it is unclear how Plateau could have responsively addressed any p~rfonn3J1:ce
problems in the system under section 75.334(b)(l).
We begin our analysis of the judge's decision by noting, ''The Mine Act imposes on the
Secretaxy the burden of proving each alleged violation by a preponderance of the credible
evidence." In re: Contests ofRespir_able Dust Sample Alteration Citations, 17 FMSHRC 1819,
1878 (Nov. 1995), affd sub nom. Sec 'y ofLaborv. Keystone Coal Mining Corp., 151F.3d1096
(D.C. Cir. 1998) (quoting Garden Creek Pocahontas Co.,.11FMSHRC2148, 2152 (Nov. 1989).
'The preponderance standard, in general, means proof that something is more likely so than not
so." In re: Contests ofRespirable Dust, 17 FMSHRC at 1838. Further, the occurrence of an
ignition is not, in and of itself, evidentiary proof of an inadequate bleeder system.' Consolidation
Coal Co. , 20 FMSHRC 227, 240 (Mar. 1998) (Comm'rs Riley and Verheggen) (citing Mar-Land
Indus. Contractor, Inc., 14 FMSHRC 754, 758 (May 1992); Old Ben Coal Co., 4 FMSHRC
1800, 1804 n.4 (Oct: 1982)).
When reviewing an administrative law judge's factual detemtinations, 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)). In reviewing the whole.record, an appellate tribunal must consider
anything in the record that "fairly detracts" from the weight of the evidence that supports a
challenged finding. Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). Further, 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 (May 1984). The Commission has
emphasized that inferences drawn by the judge are 'i>ennissible provided they are inherently
reasonable and there is a logical and rational connection between the evidentiary·facts and the
ultimate fact inferred." Id.
Finally, we apply the principles established by the Commission regarding notice. Slip op.
at 10. In a case such as this, the existence of a·violation turns on whether.the Secretary can
establish that a·reasonable operator familiar with the conditions in the mine, including the mine's
history ofmethane liberation and the capacity of its ventilation system; would have made
adjustments to the bleeder system so as to ensure that methane continuously and.effectively was
diluted and moved· away from active workings and into a return. See U.S. Stee/Mining Co., 27
FMSHRC 435, 439 (May 2005) (the reasonably prudent person test must be based on

28 FMSHRC 524

conclusions drawn by an objective observer with knowledge of relevant facts that must be
reasonably ascertainable prior to the alleged violation).
Under section 75.334(b)(l}, Plateau wa8 required to use its bleeder system ''to control the
air passing through the [worked out] area and to con~inuously dilute and move methane-air
mixtures .. . from the worked-out area away .from active workings and into a return air course or
to tlie surface of the mine." 30 C.F .R § 7S.334(b)(l). In RAG Cumberland R-es., LP, 26 ·
FMSHRC 639, 647 (Aug. 2004), affd sub nom. Cumberland Coal Res., LP v. FMSHRC, No.
04-1427, 2005 WL 3804997 (D.C. Cir. Nov. 10, 2005) (unpublished}, the Commission read
section 75.334(b)(l) to require that a ventilation system must function effectively in order to
comply with the regulation. The Commission has also noted that not every accumuiation of
methane in the gob is a violation of this requirement. See VP-5 Mining Co. , 15 FMSHRC 1531,
1539 (Aug. 1993) ("If the Secretary believes that air flowing through a gob should contain n~
more than 4% methane as it enters bleeder entries, he should consider promulgating a safety .
standard containing such a requirement.''); Island Creek Coal Co., 15 FMSHRC 339; ·3 50 (Mar.
1993) ("If the Secretary believes that specific accumulations of methane create a hazard in gobs·
or other inactive areas of underground coal mines, he should consider promulgating ·safety ·
standards to deal with this problem."). Here, the Secretary conceded as much before the judge.
. .
25 FMSHRC 738, 744 (Dec. 2003) (ALJ). 1
· Consistent with this approach to interpreting the regulation, MSHA inyestigator David
Wirth testified, "there will be some point within [the longwall gob] that the methane will be in
the explosive range." Tr. 203. MSHA experts Stephan and Urosek testified tO the same effect.
Tr. 531-32; 663-64. Indeed, because methane is liberated at a level of 100% and has to be
diluted to the 2% level at the section 75.323(e) measurement point, methaiiewill be found at
explosive levels, on a transient basis, in the gob. 25 FMSHRC at 747. Nevertheless, the j udge
concluded, "Methane must not be allowed to accumulate in the gob because explosive
concentrations are likely to develop ...." Id. This conclusion is contrary to record testimony.
Moreover, this conclusion appears to have influenced, to a large degree, the judge' s analysis of
Plateau ' s bleeder system and its ability to dilute and controlmethane in the gob.2· We would

1

The Secretary' s position on this point before the Commission is less clear; nevertheless,
the Secretary has failed to explain under what circumstances a small accumulation of methane,
such as the one that caused the initial explosion at Plateau's mine, becomes a violation under
section 75.334(b)(l). See S. Br. at 18-21.
Earlier in bis decision, the judge inconsistently state~ ''The presence of explosive
levels of methane in the gob does not establish a violation of the Mme Act or the Secretary' s
safety standards." 25 FMSHRC at 745.
2

28 FMSHRC 525

instruct the judge not to rely on this consideration in determining whether Plateau' s bleeder
system met the requirements of section 75.334(b)(l) on remand.3

In addition to .thi$ fundamental misunderstanding regarding the operation of the
ventilation system in the gob, the judge made .o ther factual findings at odds with the record. In
further analyzing Plateau's bleeder syste~ the judge found that the system ''was over-extended
so that it could not, on July 31, 2000, control the air passing through the [woi-ked-out] area so as
to continuously dilute and move methane-air mixtures and other gases from the gob into the
bleeders." 25 FMSHRC at 746 (emphasis added). The judge's finding on this point does not
reflect record testimony and relies on evidence not probative of the issue. Moreover, his analysis
fails t9 address conflicting evidence.4
The underpinning of the judge's finding, id., that the bleeder system was over-extended,
was MSHA investigator Wirth' s testimony.that the main mine fan was operating at or near
capacity and that the operator could not make any adjustments to bring in additional airflow or
create additional pressure. Tr. 58-59. However, the fact that the mine fan was running at
maximum is unrelated to the capacity of the bleeder system to handle the.level of methane being
liberated at the mine.3 Nor is the capacity ofthe mine fan, by itself, probative of the adequacy of
the bleeder ventilation system. In this regard, it is significant that the judge failed to addx:ess the
testimony of Plateau's general manager Charles Burggrcif, who testified that the mine's
ventilation system was op.erating well within the limits of methaµe l~vels that it was designed to
handie. Tr. 1004-05. See P. Ex. 4A (degasificatjon chart), We would instruct the judge to
address this testimony and any contrary evidence on remand. 6

3

As the judge noted, the occurrence of an explosion in the gob does not indicate the
ventilation system was not operating effectively.under section 75.334(b)(l). 25 FMSHRC at
745, citing Consolidation Coal, 20 FMSHRC at 240.
4

A judge must analyze and weigh the relevant testimony of record, make appropriate
findings, and explain the reasons for his decision. Anaconda Co., 3 FMSHRC 299, 299-300
(Feb. 1981). The substantial evidence standard ofreview requires the Commission to weigh all
probative evidence and to examine the fact finder's rationale in arriving at the decision.
Pittsburgh & Midway Coal Mining Co., 15 FMSHRC 2243, 2245-46 (Nov. 1993) (citing
Universal Camera, 340 U.S. at 487-88. The judge's broad statement that "Any evidence or
argument not discussed herein that is inconsistent with my findings and conclusions is hereby
rejected(,];' 25 FMSHRC at 744, is not adequate given the complex factual and technical issues
in this case.
5

That is, because the fan could not do more does not indicate it was not d~ing enough.

6

Our colleagues compound the omission of the jmJge by adopting the Secretary's postaccident allegation in the citation, stating that "it appears" that Plateau had "limited mine .
ventilating potential." Slip op. at 13. Such a conclusory statement, howev~r, cannot substitute.

28 FMSHRC 526

The judge, in concluding that there was an insufficient quantity of air moving methane
from the gob, also found that tliere was not a sufficient air·pressure drop between the last open
crosscut in the headgate entries and the connection between the gob and the bleeder entries. 25
FMSHRC at 747. From that finding, the judge further concluded, "As the methane levels
increased, the amount of intake air sweeping the gob actually decreased because of increased
resistance to air movement in the gob." Id. at 747-48.
Initially, the judge's suggestion that there was an insufficient air pressure differential is
incorrect and contrary to record evidence. MSHA! s own.ventilation expert, Urosek, testified,
without contradiction, that the pressure differential was sufficient. Tr: 665, 1366-67. Other
record evidence is also at odds with the judge's findings. The last open crosscut in the headgate
entries is outby MPLs 5 and 6, arid regulators at that point were only slightly open to prevent · ·
excess air from escaping into the bleeder entries (under·P lateau's ventilation plan no more than
10% of the air could be allowed through). Tr. 48-50. Because MPLS 5 and 6 are upstream of
MPLs 7 and 8; the pressure drop from the last open crosscut in the headgate to the bleeder ·entries
in the tailgate section (MPLs 7 and 8) must be even larger than to outby MPLs·5 and 6. Thus, the
pressure drop from the last crosscut in the headgate entry to the connection to the bleeder·entry
was large.
Even if the factual basis for the judge's analysis were correct, his conclusfon - ''the
amount of intake air sweeping the gob actually decreased because of increased resistance to air
movement in the gob," 25 FMSHRC at 747-48·- is·not probative of the issue of whether the
volume of air sweeping the gob was sufficient. The record reflects that as roof falls·occur in the
gob, there is increased resistance to airflow. Tr. 76, 1'69-70, 668. ·However, that occurrence is
not determinative of whether there·is sufficient air entering the gob. · While ·the pressure
differential between the headgate and tailgate entries impacts the volume of air sweeping the gob,
it does not prove whether sufficient flow .exists. In fact, there was no allegation or·evidence of
insufficient flow through the gob presented by the Secretary.7 Decreased flow is not the ·same as
insufficient flow.

for the record review that we would ask the judge to make. Moreover, our colleagues state that a
:finding regarding the methane capacity of Plateau's bleeder system in the D-3 longwall panel
would be "of no avail" in deciding this case. Slip op. at 12-13 n.l. At best, this statement is
contradictory, given their willingness to embrace the Secretary's allegation noted above. See
also slip op. at 13-14 (analyzing levels of methane liberation). For purposes of reviewing the
judge's finding that the system was "over-extended" and reaching the ultimate conclusion
whether the system was able to continuously dilute and move methane, we conclude that such a
finding is an essential part of such an analysis. 25 FMSHR.C at 746.
7

Two of the Secretary' s witnesses, investigator.Wirth (Tr. 61) and ventilation expert
Urosek (Tr. 645), testified that there was not a volume problem.
28 FMSHRC 527

In sum, the judge's reliance on pressure differentials between the head.gate and bleeder
entries is factually incorrect, and his conclusion regarding the decrease in air sweeping the gob
based on resistance.in the gob does not support a conclusion that there was an insufficient airflow
in the mine.
A further basis for the judge's finding that the bleeder system was over-extended was his
finding that the section 75.323(e) measuring point, MPL B 1, had reached capacity. 25 FMSHRC
at 748. As the judge correctly recogniud, mf31hane levels in th~ mine increased as production at
the longwall picked up and as the gob grew in size. Id. at 746. This trend began when
production started on July 17 and continued through July 31, and was reflected.by the readings at
MPLs 7 and 8, where air left the gob and entered-the No. 3 bleeder entry. Id. During this same
peri~ methane readings at MPL Bl also.increased. Id• . In his decision, the judge placed
parti~ular reliance on the .o ccurrence of increased readings at MPL B 1 that twice reached
actionable levels, above 1 .95% methane, and 'briefly exceeded the 2% l~vel on July 31, two shifts
prior to the shift when the expl~ion occurred. Id. Plateau's prptocol required the cessation of
production at;the face when methane registered at the actionable level, a fact that we woul4
instruct.the judge to consider·on.remand.8 Tr. 595 . . .
The judge's analysis reflects a ftmdamental misunderstanding of the relationship between
the section 75.323(e) measuring point and compliance with section 75.334(b)(l). MPL Bl
measured the combined airstream: from five distinct air.flows: the face, .the gob; the heaµgate, the
tailgat-e, and the sump=pump and was located over 8000 feet fr:om the gob. See Gov't Ex. 31,
App~ I. Notwithstanding the elevated readings at MPL Bl, .methane levels at MPLs 7 and 8
remained below actionableJevels throughout the period preceding the accident. These readings
gave a much mer.e accurate picture ofmethane.i n the gob because these measurement. points
were the closest.to the gob and captured readings in the bleeders before gob air exited and mixed .
with air from the headgate and sump pump. ·Tr. 84-85 .. Therefore, the judge's reliance on
readings atMPLBl to support his conclusion that there was a violation of section 75.334(b)(l)
was misplaced.9 See also RAG Cumberland, 26 FMSHRC at 650 (air in the eastern bleeder entry

8

Reaching capacity is signaled by exceeding action levels at the evaluation points, and
having excess capacity is demonstrated by staying below those levels. Here, the record shows
that, two shifts prior to the explosion, methane measurements at MPL B 1 briefly reached action
levels of 1.95% twice. Thus, the ventilation system was operating well .within capacity 100% of
the time on ·the shift during which the accident occurred and the immediately preceding shift, and
over 95% of the time on the day of the accident. ·Finally, our colleagues' implication that Plateau
should have addressed the elevated readings at MPL B 1 by changing the ventilation system
ignores the realities of the ventilation plan approval .process and the fact that Plateau timely and
effectively addressed the high readings.by ceasing production, as required by its protocol.
9

We disagree with our colleagues that Plateau somehow erred by not investigating the
"cause or effect of the exceedance . . ~at MPL Bl." Slip op. at 15. See also slip op. at 13 n.2.
Plateau performed exactly as its protocol demanded by ceasing production (which had stopped
28 FMSHRC 528

likely had higher methane levels before it was diluted'by air and exited from the mine through
the bleeder shaft). Significantly, there is no evidence that we can glean from the·record·
testimony that readings at MPLs 7 and 8 would have indicated that the ventilation system was not
·
operating effectively. We would instruct the judge to give primary consideration to
measurements at MPL 7 and 8 in determining the bleeder system's efficacy under section
75.334(b)(l) on remand.
.
The judge further erred in his lengthy conSideration of the injection of"sweetened" air
into the bleeder system which resulted in lowering :qiethane levelS at the section 75.323(e)
measuring point, MPL Bl. 25 FMSHRC at 748-49. As noted above, the judge's primary focus
under section 75.334(bXI) should have been on MPLs 7 and 8, which were the best indicators of
the methane
level in air coming out of the gob. It is not alleged that Plateau was doing .anything
.
improper under section 75.323(e) or its ventilation plan by the leakage of intake air into its
·
bleeder system. Thus, the judge's finding·that the sweetened air "artificially lower[ed] the
we woUld
methane concentrations" at MPL }:l l is without factlial or'legal significarice
instruct him not to con8ider the matter on remand. IO

and

To the extent tluf.t the judge ·considered the rea~gs at MPLs 7and 8 at all, he examined
them primarily in relation to readings at MPL B1. Not surprisingly, the judge initially noted that,
as production ·increased, readings at MPLs 7 and '8 increased. 25 FMSHRC ·at 749. The judge
:further noted that the spread between methane readings' at MPLs 7 and 8 and those at MPL B 1
was growing from 0.25%, prior to July 28~ to 0.75% by July 31. Id.·at 749-50. Based on tllls
factual .circumstance, the judge conchided.that "go~ airllow·was becoming a smaller percentage
of the total aiiflow ·at MPL Bi" and, therefore, ''i;n.ethane was accumulating in the ·gob more . ,
rapidly than the ventilation system was able to dilute and move it into the bleeders.'' Id. at·75·0.
However, the judge's conclusion simply does not follow from the facts.

prior to the high readilig because of a shift change). Further, with the idling of production, .
methane levels at MPL Bl dropped, as intended by Plateau's protocol. In these circumstances,
we fail to see what Plateau would have investigated.
Because what Plateau was doing here was pe:rm.issible, indeed intended under ~ection
75.323(e), the judge's suggestion, reinforced by our colleagues' anhlysis, slip op. at 12, 14-17,
that the measurement point was improperly placed, because of its distance from the gob and
injection of additional air, is not well taken. Indeed, only the Seeretary can change the section
75.323(e) measurement point through notice-and-ccmlinerit rulemaking. Labeling this
detennination as a crerubility issue, 25 FM:SHRC at 748, slip op. at 14, does not change the Iegai
nature·of the ruling, which is to move the location o.f the section 75.323(e) measurement point ··.
within the bleeder system. Finally, even while .chastising Plateau.for allegedly'inappropriately'
diluting the air stream measured at MPL B 1, om colleagues nevertheless give primacy to·
readings taken there over those taken at MPLs 7 and 8. This displays a misunderstanding of the
purposes of these distinct measuring points.
10

28 FMSHRC 529

First, the basis for the judge's conclusion is mathematically incorrect. As the level of
methane at MPLs 7 and.8 increased, the difference between those readings and readings at MPL
B 1 would.grow regardless ofwhether the percentage of air going through MPLs 7 and 8
decreased, remained constant, or even modestlyincreased. 11 Second, it is apparent from the
record that methane readings at MPL Bl
not probative of the volume of gob airflow. the
record shows that bleeder air at MPL Bl came from multiple areas of the mine, including the
face where increasing amounts of methane were liberated as production increased. Thus, unless
the effect of methane liberation from the face, as well as airflow from other areas, could.be
eliminated,
correlation between the difference in readings at MPL Bi and MPLs 7 and 8, and
gob airflow is tenuous at .best.
..
.
·
·

were

any

Finally and most significantly, the judge's further conclusion, drawn from the readings at .
MPL B 1 and MPLs 7. and 8, that methane was accumulating in the gob too rapidly to be removed
by ventilation snnply does not follow from the recoro evidence. An increase in the level of
methane being removed from the gob and an excess accumulation are not the sam.e thing. An
increase in the level of methane at MPLs 7 and 8, by itself: could just as logically lead ~o the ·
conclusion that the ventilation system was operating effectively. Moreover, methane liberation at
the face also would cause an increase in the level ~f methane at MPLs 7 and 8.
Even.ifmethane levels atMPL Bl and MPts 7 and 8.were increasing, thejudge's.
ultimate conclusion - that me:thane was accumulating more rapidly than the ventilation system
was a~le to reinove it, 27 FMSHRC at 750 - .does not follow from this. As we have noted,
higher levels of methane at these measurem..ent points were expected as production in~eased and .
the gob area expanded. Methane levels at MPLs 7 and 8 never reached actionable levels. "EVen .
the S~etary's own expert, Stephan, opine4 that the initial explosion that ~ouched off
iater
more serious explosions occurred as a result of the ignition of a y~ry smatl amount of methane,
approximately 50 cubic feet. Thus, we believe that the judge should rely on other record
evidence if he is to support this conclusion.

the

Because of these factual discrepancies in the judge's decision, a remand to the judge to
reevaluate the record evidence would be warranted. In addition, for ~e reasons more fully
11

For example, if the air from MPLs 7 and 8 remained at a constant 75% of the total air
flowing to MPL B 1 and contained 1.5% methane, while the remainder ofair contained 0.5%
methane, then the air.at MPL Bl would contain 1.25% methane [(1.5% x 0.75) + (0.5% x 0.25) =
1.25%]. The difference between the methane levels at the MPLS is: (1.50% - 1.25%) or 0.25%. ·
Now, if the methane content at MPLs 1 and 8 increases to 3.5% and nothing else changes, ihe
level atMPLBl becomes 2.75% ((3.5% x 0.75) + (0.5% x 0.25)] and the difference between the
methane levels at the MJ>Ls increases to: (3.50% - 2.75%) or 0.75%. FUrthermore, even·ifth~
"gob flow" were to increase to 85% of the total in the second case, the difference between.the
MPLs would have risen from 0.25% to 0.45%, contrary to the judge's c9nclusion that a rising
·
difference indicates a decrease in flow from the gob.

28.FMSHRC 530

discussed below, we would instruct the judge to also further analyze the notice issue before him,
using the correct legal standard.
C.

Notice

We disagree with.the judge's terse analysis of whether a reasonably.prudent person would
have been on notice that there was a violation of section 75 .334(bXI). The j1:1dge concluded, "I
agree with the Secretary that Plateau should have been _on notice that its bleeder system was not
functioning properly on July 31, 2000." 25 FMSHRC at 746 (emphasis added). ~owever, tlie
Commission has long rejected a subjective approach to the reasonably prudent per-Son test. See
Canon Coal Co., 9 FMSHRC 667, 668 (Apr. 1987). Rather, as ~e Commission has explained, ·
"[T]he reasonably prudent person test must be based on conclusions drawn by an objective
observer with knowledge of the relevant facts. It follows that the facts to be considered must be
those which were reasonably ascertainable prior to the alleged violation." U.S. Steel, 27
FMSHRC at .4 39 (citation omitted). Thejudge's reliance on a "should h!lve knoWll" test
substitutes a subjective standard that the Commission has long eschewed. Therefore, for this
additional reason, his decision should be vacated and remanded for application _o f the correct
··
·
legal standard that is set forth above, slip op. at 24~
.

.

.

We would instruct the judge to coI1Sider the factual circumstances surrounding the
ventilation system prior to July JI on remand. As the judge noted, 25 FMSHRC at 745, the only
numerical requirement in the safety standards is that methane cannot exceed 2% in the return air
just before it joins another split of air. 12 30 C.F.R. § 75.323(e). However, section 75.334(b)(I),
the regulation alleged to have been violated here, h3S no ntimerical standar~ ~gainst which an,
operator's ventilation plan may be evaluated. In addition, Plateau was in.full co~pliail.ce with its
ventilation plan. While we do not agree with Plateau's position that complying with.an .approved
ventilation plan is an absolute defense to a citation under section 75.334(b)(l), 13 MSHA's
involvement at this mine was much more extensive.

12

Our colleagues' de novo analysis of the record relating to notice ignores the crucial
question of how a reasonably prudent operator would know that the ventilation system was not
operating effectively in light of measurements that were, except in the two instances previously
noted, within permissible and expected ranges. See slip op. at 17-I 8. In an effort to address this
issue, our colleagues describe the two exceedances at the section 75.323(e) measurement point
and the elevated readings at MPLs 7 and 8 as evidencing a "disruption" in the system. However,
the Secretary has never alleged that Plateau violated the terms of its approved ventilation plan in
any regard.

"Once a ~entilation plan is approved and adopted, its provisions and revisions are
enforc.eable as mandatory standards." Wyoming Fuel Co., 16 FMSHRC I618, 1624 (Aug. 1994)
(citations omitted). Major changes in the plan require MSHA's approval before they can be
implemented. Id.
13

28 FMSHRC 531

Fwther, there is little in the record to suggest that there was a problem in the gob. All
volume measurements appear to have been within the desired range. Meastirements of methane
levels at MPLs 7 and 8 were within the acceptable range. The methane level at MPL B 1 had also
remamed below the action level for all of this shift and the previous shift, after twice briefly
exceeding that level two shifts prior." Plateau's protocol dictated that an elevated level of
methane would be addressed by a cessation of production, and the methane level·at MPL Bl had
fallen below the action leyel during the idle period. While we leave it to the judge to thoroughly
review the record, we can find no e~dence .t o indicate that there were dangerous leve~s of
methane accumulating in violation of section 75 .334(b)(1 ), that the system was in any way not
perfQrming as expected, or that there was any reason to suspect that the system was not
performing as expected. Given the above facts, it is difficult to ascertain how a reasonably
·
prudent operator would h,ave knoWJ1 that there was a violation of the regulation.
Finally, we note that it is difficult to ascertain how a reasonably prudent operator sb.ould
have responded to the problems that the Secretary found in the ventilation systenj. The Secretary
presented several experts at 1;rial who testified that Plat~u· fai~ed to adequately distribute air in
the gob. The judge rejected the Secretary's theozy and CQncluded th~t the probl~ was one of
inadequate volume of air. 25 FMSHRC at 750-51. Jn fact, Plateau responded to.the elevated
readings at MPL B 1.as its protocol required. 14 Absent .other evidence ~t the ventilation system
was not performing as expeeted, it is not evident to us what further ~ons a reasorulbly prudent
operator should have taken:

the..

Jn sum, we would instruct the judge t~ apply the reasonably prudent person test :from
perspective of an objective mine operator who considers the totality of factual circumstances and
evaluate all conflicting testimony and evidence that are relevant to this inqn.irY on remand. U.S.
Steel, 27 FMSHRC 444.

The elevated readings at MPL B1 actually appeared near th~ start of an idl~ shift,
possibly reflecting the length oftinie that it would take air to travel the long distance :from the
face and gob to the section 75.323(e) measmingpoint.
14

28 FMSHRC 532

Distribution

R HemyMoore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222
Robin A Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nc1 Floor West
Arlington, VA 22209-2247
Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

28 FMSHRC 533

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

SUITE9500
WASHINGTON, DC 20001

August 25, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTR.ATION (MSHA)

Docket No. WEST 2006-507-M
A.C. No. 26-:02561-78021

v.
Docket No. WEST 2006-508-M
A.C. No. 26-02651-80870

LONGVIEW CONSTRUCTION AND
DEVELOPMENT, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act''). 1 On July 31, 2006, the Commission received from Superior
Sand & Gravel, Inc. 2 ("Superior'') a letter requesting that the Commission reopen 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).
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 nwnbers WEST 2006-507-M and WEST 2006-508-M, both captioned
Longview Construction and Development Inc. and both involving similar procedural issues.
29 C.F .R. § 2700.12.
2

As explained further in this order, in January 2006, Longview Construction and
Development Inc. ("Longview") changed its name to Superior Sand & Gravel, Inc.
28 FMSHRC 534

In January and February 2006, the Department of Labor's Mitie Safety and Health
Administration ("MSHA") sent proposed penalty assessments to Longview Construction and
Development, Inc. ("Longview") for Citations issued to the company by MSHA in April and .
November 2005. Effective January 2006, however, the company's legal name was changed from
Longview to Superior, and the company's address also changed. Superior states in its request
that it failed to timely contest the proposed penalty assessments at issue because MSHA had
mailed the assessments to its former address and, by the time that it received the assessments in
March 2006, more than 30 days had passed. The Secretary states that she does not oppose
Superior's request for relief.
We have held 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 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_i:eopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

28 FMSHRC 535

Having reviewed Superior's request, in the interests ofjustice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Superior's failure to timely contest the penalty proposals and whether relieffrom the final orders
should be granted. If it is determined that such relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission' s Procedural Rules, 29 C.F.R. Part 2700.3

.

~

~~M

~

Michaei~uffy. cbai!Il18Il

3

.

·~

In the event that this case proceeds, the judge may entertain a motion to amend the case
caption to reflect the company's new name, as appropriate.
28 FMSHRC 536

Distribution
Kathy W. Jones
Superior Sand & Gravel, Inc.
P.O. Box 7019
Bunkerville, NV 89007
W. Christian Schwnann, Esq.
Office of the Solicitor·
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor W.est
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

28 FMSHRC 537

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

SUfll:9500
WASHINGTON, DC 20001

August 25, 2006

Docket No: CENT 2006-228-M
A.C. No. 14-01478-87955

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. CENT 2006-229-M
A.C. No. 14-01277-87965

v.

Docket No. CENT 2006-230::.M ·
AC. No. 14-01597-90759

NELSON QUARRIES, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) (''Mine Act'').' On August 7, 2006, the Commission received from Nelson
Quarries, Inc. ("Nelson Quarries") a letter requesting that the Commission reopen three penalty
assessments that had become final orders of the Commission pursuant to section I 05(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section I 05(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).
In May and June 2006, the Department of Labor' s Mine Safety and Health
Administration (''MSHA") sent to Nelson Quarries the proposed penalty assessments at issue.
Nelson Quarries explains that it overlooked these dockets when submitting a previous request for

1

Pursuanfto Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers CENT 2006-228-M, CENT 2006-229-M, and CENT 2006-230-M,
all captioned Nelson Quarries, Inc. and all involving similar procedural issues. 29 C.F.R.
§ 2700.12.
28 FMSHRC 538

relief to the Commission on July 11, 2006, and it request.$ that these dockets be reopened along
with the others. See Nelson Quarries, Inc., 28 FMSHRC
Nos. CENT 2006-200-M through
CENT 2006-209-M (Aug. 2, 2006) (order remanding dockets to judge). The Seeretary responds
that, due to the company's confusion over whether it should pay the prop(>sed assessments at
issue based upon information the company received from MSHA, she does not oppose.Nelson
Quarries' s request for relief.
__J

We haye held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested asse.ssments 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 Procemrre 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 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).

28 FMSHRC 539

Having review¢ Nelson Quarries's request, in the interests ofjustice, we remand this
matter to the.Chief Administrative Law Judge for a.determination of whether good cause exists
for Nelson Quarries' s failure to timely contest the penalty proposals and whether relief from the
final orders should be granted If it is determined that such relief is appropriate, this case shall
proceed pursuant to the Mine Act and the Commission' s .Procedural Rules, 29 C.F.R. Part 2700.

28 ·FMSHRC 540

Distribution
Kenneth L. Nelson, President
Nelson Quarries, Inc.
1307 2000 Street
P.O. Box 100
Gas, KS 66742-0100
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

28 FMSHRC 541

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

WASHINGTON, D.C. 20001

August 29, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA)

Docket Nos.

v.

SE 2005-301-M
SE 2006-131-M
SE 2006-167-M

HOSEA 0 . WEAVER & SONS, INC.

ORDER

On August 11, 2006, the Commission received from Hosea 0 . Weaver & Sons, Inc.
('Weaver'') a Petition for Discretionary Review, or in the Alternative, Petition for Interlocutory
Review, in these consolidated proceedings. This petition sought review of Commission
Administrative Law Judge David F. Barbour's July 13, 2006 order denying Weaver's motion for
summary decision and granting the Secretary of Labor 's motion for summary decision on the
issue of whether the Department of Labor's Mine Safety and Health Administration ("MSHA")
had jurisdiction over the activities in question. On August 15, 2006, the Secretary of Labor filed
a response opposing Weaver's petition and moving that it be dismissed. 1
Also on August 11, 2006, Weaver filed with Judge Barbour a motion for certification of
bis interlocutory roling to the Commission, pursuant to Commission Rule 76(a)(l )(i). The judge
denied Weaver's motion on August 17, 2006.
Under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2004),
and the Commission' s procedural rules, relief from a judge' s final decision may be sought by
filing a petition for review within 30 days of its issuance. 30 U.S.C. § 823(d)(2)(A)(i); 20 C.F.R.
§ 2700.70(a). Here, however, the judge's order was an interlocutory ruling on motions :filed by
the parties, not a :final disposition of the proceedings. Thus, we cannot consider Weaver' s
petition under Commission Procedural Rule 70(a).

1

The Secretary filed a supplemental motion in opposition to Weaver's petition on
August 24, 2006.

28 FMSHRC 542

The Commission's rule on interlocutory review sets forth the prerequisites for such
review, stating that the Commission may grant interlocutory review only after a judge "has
certified ... that his interlocutory ruling involves a controlling question of law and that in his
opinion immediate review will materially advance the final disposition of the proceeding," or
"denied a party's motion for [such] certification ... and the party files with the Commission a
petition for interlocutory review within 30 days of the Judge's denial of such motion." 29 C.F.R.
§ 2700.76(a)(l). Here, Weaver filed its petition for interlocutory review prematurely because.the
judge had not yet ruled on the company's pending motion for certification.
Accordingly, we grant the Secretary'~ August 15 motion to dismiss.

28 FMSHRC 543

Distribution
Adele L. Abrams, Esq
Law Office of Adele L. Abrams, P.C
4740 Corridor Place, Suite D
Beltsville, MD .20705
Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Administrative Law Judge David F. Barbour
Federal ~e Safety & Health ·Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W ., Suite 9500
Washington, D .C. 20001-2021

28 FMSHRC 544

FEDERAL MIN.E SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUrrE9500
WASHINGTON, DC 20001

August 29, 2006

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

v.
CUMBERLAND COAL RESOURCES, LP

Docket Nos. PENN 2004-73-R
.PENN 2004-74-R
PENN 2004-75-R
PENN 2004-85-R
PENN 2004-86-R
PENN 2004-87-R
PENN 2004-88-R
.
.
PENN 2004-104-R
PENN 2Q04-105.,.R
PENN 2004-181
PENN2005-8

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
DECISION
BY THE COMMISSION:

In these contest and civil penalty proceedings arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) ("Mine Act''), Administrative Law Judge
Michael E. Zielinski affirmed two imminent danger orders and three citations issued by the
Department of Labor's Mine Safety and Health Administration ("MSHA'1 to Cumberland Coal
Resources, LP ("Cumberland' ') alleging that Cumberland had violated 30 C.F.R. § 75.334(b)(l). 1
27 FMSHRC 295 (Mar. 2005) (ALT). Cumberland filed a petition for discretionary review of the

1

Section 75.334(b)(l) sets forth requirements.for the function of a bleeder system in an
underground coal mine as follows:
· ·
During pillar recovery a bleeder system shall be used to .
control the air passing through the area and to continuously dilute
and tp.ove methane-air mixtures and other gases, dusts, and fumes
from the worked-out area away from active workings and into a
return air course or to the surface of the mine.
30 C.F.R § 75.334(b)(l).
28 FMSHRC 545

judge's decision; which the Commi_ssion granted. For the reasons that follow, we affirm the
judge's decision in part and reverse in part.

l
Factual and Procedural Background
Cumberland operates the Cumberland Mine, a large, underground coal mine in Greene
County, Pennsylvania. Id. at 296. Jn 2003, Cumberland was preparing to·mine Longwall Panel
No. 49 (''LW49") which, at a size of more than 12,000 feet long and·l,250 feet wide, was to be
the largest panel that Cumberland had ever mined. Id. at 296-97. For ventilation purposes,
Cumberland initially had planned to use a bleeder fan system, in which bleeder entries would be
connected to a bleeder shaft located inby, or behind, LW49. Id. at 297. However, Cumberland
realiZed that LW49 would be ready for production weeks or even months before the bleeder shaft
would be operational. Id. In October 2003, Cumberland abandoned plans to use the bleeder
shaft and, instead, decided to use a wraparound bleeder system for the first 10,000 feet of mining
on LW49. Id. With the wraparound bleeder system, airflow would be generated by existing fans
located outby L W49 used to pull air out of the tailgate entries. Id.; Jt. Stip. 14. On November 7,
Cumberland submitted to MSHA an addendum to its ventilation plan,2 describing provisions
specific to LW49, and proposing that, in April 2004, a bleeder shaft would be constructed within
an air shaft located outbyLW49 to enhance the ventilation system. · 27 FMSHRC at 297. On
December 9, MSHA approved the ventilation plan addendum for the first 8,000 feet of mining.
Id.; It. Exs. 1 & IA.
.
On December 28, mining activity began on LW49. 27 FMSHRC af298. hi early Januazy
2004, LW49 experienced a number of"gas outs," i.e., interruptions in mining due to high levels
of methane measured ,bymonitors located at the longwall face and tailgate.3 Id. Cumberland
then made three changes in the airflow of the LW 49 ventilation system without.seeking·or
obtaining MSHA' s prior approval. Id. at 298-99. First, on January 4, Cumberland changed the
No. 3 tailgate entry :from an intake to a return air course. Id. at 298; Jt. Stip. 19. Second, on
January 7, Cumberland reversed the direction of airflow in the No. 1 headgate entry (the belt
entry) to move air outby from the face, and switched the No. 3 headgate entry from a return to an
intake air course. 27 FMSHRC at 299; Jt. Stip. 20. Cumberland sent a letter to MSHA
requesting approval of these changes on January 8. 27 FMSHRC at 299; Jt. Ex. 3. Third, on
January 11, Cumberland moved a regulator located on the tailgate side to change pressure from
outby to inby. 27 FMSHRC at 299; Jt. Stip. 22. Cumberland submitted an addendum to its
ventilation plan, incorporating these changes, on January 12. 27 FMSHRC at 299; Jt. Ex. 4.

2

Cwnberlmd's ventilation plan had been approved on March 3, 2003. 27 FMSHRC at
298; Jt. Stip. 16; Jt. Ex. 2.
3

The mine is very gassy and is subject to spot inspections every 5
section 103(i) of the Mine Act, 30 U.S.C. § 813(i). 27 FMSHRC at 298.
28 FMSHR.C 546

daYs pursuant to

On January 13, MSHA Inspector Anthony Guley and MSHA Assistant District Manager
Thomas Light conducted a spot inspection of the mine pursuant to section 103(i) of the Mine
Act, 30 U.S.C. § 813(i). 27 FMSHRC at 299. Guley and Light were concerned by conditions
they encountered on LW 49, includirig low airflows and higher than expected methane ·
concentrations, which they believed indicated that the bleeder system was not working
adequately. Id. at 300-01. Guley and Light observed the changes that had been made and
detennined that the December 9 ventilation plan was no longer being followed. Id. at 299.
Guley thereupon issued Cwnberland a citation pursuant to section 104(a) of the Mine Ac~ 30
U.S.C. § 814(a), for failure to obtain MSHA's· approval before implementing·changes to its
·
ventilation plan.4 Id.
On January 14, representatives ofMSHA, Cumberland, and the United Mine Workers of
America ("UMWA") participated in a meeting at ·which the LW49 ventilation system was
discussed. Id. at- 301 . MSHA scheduled a comprehensive·ventilation survey of LW 49 to be
conducted on January 16. Id. On January 15, Cumberland performed its·own evaluation of the
bleeder system and determined that it was working effectively. Id.

0n·January 16, MSHA, Cumberland, and UMWA representatives conducted a ventilation
survey of the LW49 wraparound bleeder system. Id. at 301-02; Tr. 471-72. Approximately
seven teams, consisting of three or four people each, collected information about the bleeder
system by taking altimeter readings to determine ventilating pressures, anemometer readings to
determine airflow velocities, pressure gauge readings to determine pressure differentials, smoke
tube readings to determine airflow directions and airflow velocities -for specific distances, and
methane readings using handheld detectors and bottle samples. 27 FMSHRC af301 ; Jt. Stip. 27;
Jt. Ex. 7; Tr. 87-88, 466-67, 471-81, 487. Based on the results of the survey, MSHA determined
that the bleeder system was fragile and was ineffectively ventilating·the longwall panel. 27
FMSHRC at 302; Tr. 162-63, 503-05; Gov't Exs. 25 & 26. Consequently, MSHA Inspector
Robert Penigar issued Cumberland Citation No. 7083200 alleging a violation of section

4

The citation, which is not at issue in these proceedings, alleged a violation of30 C.F.R
§ 75.370(a)(l) and (d), which require that an "operator shall develop and follow a ventilation
plan approved by the district manager" and that material changes to the plan must-be approved
before implementation. 27 FMSHRC at 299-300; Jt. Ex. 5.
28 FMSHRC 547

75.334(b)(l).5 27 FMSHRC at 302. Cumberland agreed not to operate LW49 until the
ventilation problems were res9lved. Id.
On January 18, MSHA, Cwnberland, and UMWA personnel met to discuss changes .to .
the LW49 wraparound bleeder system. Id. On January 19, MSHA re-evaluated the bleeder
system but, despite improvements, MSHA determined that the system remained ineffective. Id,;
Tr. 548-49; Gov't Exs. 27 & 28. Additional changes were made, and another evaluation was
performed on January 20. 27 FMSHRC at 302; Gov't Exs. 29 & 30. Although the bleeder
system was improved, MSHA.detemrined that it was still fragile and its capacity to.dilute
methane was limited. 27 FMSHRC at 302.
On the night of January 20, the survey results and MSHA's requirements for ~pproval of
a new ventilation plan were discussed at a meeting. Id. MSHA insisted upon additional
.
monitoring points because it believed that, due to lack of airflow in the No. 2 tailgate entry, the
designated bleeder evaluation points ("BEPs'!) were not providing accurate information ab~ut
conditions in the bleeder system. Id.; Tr. 167. Specifically, in·addition to BEPs 30, 30A; and
30B,6 MSHA required monitoring points within the gob at crosscuts 82 and 85, using steel pipes
installed through stoppings between the No. 1 and No. 2 tailgate·entries so that methane in the

5

Citation No. 7083200 states:
The bleeder system.for the active LW49 longwall sectio~
.MMU 011, was determined to be ineffective in controlling the .flow.
of air through the bleeder system to continuously dilute and move
methane-air mixtures from the .g ob and away. from the active
workings. A ventilation survey conducted by MSHA inspectors
and engineers from MSHA Technical Support on 01/16/2004
showed that the bleeder system was not adequate to move methane
out of the gob and away from the face. The operator was cited on
01/13/2004 for not complying with the ventilation plan approved
on December 9, 2003 when it was found the longwall was not
being ventilated in a manner approved in the plan. Coal will not be
mined with the longwall until ventilation changes are made to
correct the bleeder system deficiencies and a plan submitted and
approved by the District Manager showing the revised bleeder
system.

Gov't Ex. 1 at 1. The citation designates the violation as significant and substantial ("S&S") and
·
·
characterizes the operator's degree of negligence as moderate. Id.
6

BEPs 30 and JOB were located inby the longwall face at. the back comer on the tailgate
side ofLW49. BEP 30A was moveable in advance of the longwall face on the tailgate side of
LW49. Jt. Exs. IA & IOA; Tr. 286, 394; 1314-15.
28 FMSHRC 548

No. 2 tailgate entry7 could be measured by testing air flowing through the pipes into the No. 1
tailgate entry. 27 FMSHRC 302. MSHA also required a monitoring point in the No. 1 tailgate
entry between crosscuts 73 and 74. Id. MSHA insisted upon sp~ific methane ·limits at those ·
monitoring points, i.e., limits of 4.5% for the BEPs and the monitoring points at crosscuts 82 and
85 and 2.0% for the monitoring point between crosscuts 73 and 74. Id.
Cumberland objected to MSHA's gob-sampling requirements as unprecedented and .
unreasonable. Id. Nevertheless, on January 21, Cumberland submitted and MSHA approved a
new ventilation plan incoiporating MSHA's requirements. Id. at 303; Jt. Exs. 10 & IOA. As the
operation of LW49 resumed, MSHA inspectors were assigned to monitor the bleeder system 24
hours a day, talcing measurements at the established monitoring points every 2 hours. 27
FMSHR.C at 304, 316. On January 24, MSHA Inspector Ronald Hixson issued an imminent
danger order pursuant to section 107(a) of the Mine Act, 30 U.S.C. § 817(a), and a citation
alleging a violation of section 75.334(b)(l) when he measured methane concentrations above
5.0% at a location in the No. 2 tailgate entryofLW49 between crosscuts 83 and 84. Id. at 304;
Gov't Exs. 2, 3, & 33. On January 25, MSHA re-evaluated the bleeder system and determined
that it was still fragile. 27 FMSHRC at 304; Tr. 588, 603; Gov't Ex. 32.
On January 29, representatives from Cumberland met with Assistant Secretary of Labor
for Mine Safety and Health David Lauriski and other MSHA personnel to complain that
MSHA's insistence upon the additional monitoring points and methane limits within the gob was
unprecedented and unjustified. 27 FMSHR.C at 305; Jt. Stip. 42. The meeting, however, did not
resolve Cwnberland's complaint. 27 FMSHRC at 305. Cumberland then sought assurances
from MSHA that, if it were to convert the wraparound bleeder system to a bleeder fan system, the
monitoring in the No. 2 tailgate entry would no longer be required. Id. Cumberland began
developing a plan to make operational the previously-planned bleeder shaft behind LW49. Id.
On February 4, MSHA Inspector Ronald Tolliver detected sudden increases in methane
concentrations along the tailgate side ofLW49, including a methane concentration of 4.8% at the
monitoring point in the No. 2 tailgate entry in the gob at crosscut 85, and, consequently, issued
Cumberland Order No. 7066999 alleging an imminent danger and Citation No. 7067000 for a
violation of section 75.334(b)(1).8 Id. at 304; Gov't Ex. 34. On February 7, Tolliver again

7

The No. 2 tailgate entry served as an intake airway outby BEP 30A, but became part of
the gob on the inby side of.the longwall face. See Jt. Ex. 1OA.
8

Order No. 7066999 states:
. The bleeder system used in the no. 49 Longwall panel
failed to continuously dilute and move methane air mixtures and
dust from the worked out area away from the active section.
Methane was detected on the tailgate side, in the no. 2 entry, at the
no. 85 crosscut at 4.8%. This was due to an airchange (removal of
28 FMSHRC 549

detected sudden increases in methane concentrations along the tailgate side ofLW49, including a
methane concentration of 5.0% at the monitoring point in the No. 2 tailgate entry in the gob at
crosscut 85, and issued Order No. 7067001 alleging another imminent danger and Citation No.
7067003 for another violation of.section 75.334(b)(l).9 27 FMSHRC at 304; Gov't Ex. 35. Also
on that date, MSHA approved Cumberland' s plan to make operational the.previously-pl~ed
bleeder shaft. 27 FMSHRC at 305; Jt. Stip. 48.

a ventilation control in the headgate side of the #2 entry).
Gov't Ex. 5 at 1.
Citation No. 7067000 states:
The bleeder system for the active LW 49 longwall section,
MMU 011, was detennined to be ineffective in controlling the flow
of air through the bleeder system to continuously dilute and move
methane-air mixtures from the gob and away from the active
workings. This was due tq an adjustments [sic] to the ventilation
controls in the no. 2 entry of the head.gate side.
Gov't Ex. 4 at 1. The citation designates the violation:as S&S and characterizes the operator's .
negligence as moderate. Id.
9

Order No. 7067001 states:
The bleeder system used in the no. 49 Longwall panel

failed to continuously dilute and move methane air mixtures and
dust from the worked out area away from the active section.
Methane was detected on the tailgate side, in the no. 2. entry at the
·
no. 85 crosscut at 5.0%.

Gov't Ex. 6 at 1.
Citation No. 7067003 states, in pertinent part:
The bleeder system for the active LW49 longwall section,
MMU 011, was determined to be ineffective in controlling the flow
of air through the bleeder system to continuously dilute and move
methane-air mixtures from the gob and away from the active
workings.
Gov' t Ex. 7 at 1. The citation designates the violation as S&S and characterizes the operator's
negligence as moderate. Id.
28 FMSHRC 550

·Mining activity on LW49 wa5 stopped from February 13 until the bleeder shaft was
completed, more than a month later. 27 FMSHRC at 305. On February 14, while miners were
moving a regulator on the headgate side ofLW49, MSHA Inspector James Comad issued an
imminent danger order and ·a citation alleging a violation of section 75.334(b)(1) when he
detected 5.1 % methane at BEP 31 located in the No. 2 headgate entry between crosscuts 88 and
89. Id. at 304; Tr. 987- 1013; Gov't Exs. 8, 9, & 36. After Cumberland converted to the bleeder
fan system, no further ventilation problems or delays were experienced. 27 FMSHRC at 305.
Cumberland challenged the orders and citations, and the matter proceeded to hearing.
The judge affirmed the citation issued on January 16 and the orders and citations issued
on February 4 and 7, but vacated the orders and citations issued on January 24 and F~bruary 14.
Id. at 332. With regard to the January 16 citation, the judge determined that the bleeder system
was not functioning effectively as required by section 75.334(b)(l), and that a reasonably prudent
person familiar with the mining industry and the protective purpose of the standard would have ·
recognized the system' s ineffectiveness. Id. at 305-15. Regarding the February 4 and 7 orders ·
and citations, the judge determined that the sudden increases in methane concentrations presented
imminent dangers to miners and that the bleeder system was.not functioning effeetively; in · ·
violation of section 75.3'.34(b)(1 ). Id. at 323-27. 1.'h~ judge concluded that the violations were
S&S and the result of moderate negligence. Id. at 315..:16, 327. Accordingly, he assessed civil
penalties totaling $2,496, the amount proposed by the Secretary for the violations. Id. at 332.

II.
Dimosition
On appeal, Cumberland argues that substantial evidence·does not support·the judge's
affirmance of the citation issued on January 16 and ·the orders and citations issued on February 4
and 7. 10 PDR 15-23; C. Br. 17-23, 28-31; C. Reply Br. 2.:10. It asserts that the LW49
wraparound bleeder system was functioning adequately and effectively as required by section
75.334(b)(l). Id. Cumberland also asserts that the judge erred in determining that it had notice
that the bleeder system violated the standard. PPR 11-15; C. Br. 10-17; C. Reply Br. 11-13. In
addition, Cumberland argues that the judge erred in finding that the inspector did not abuse liis
discretion in issuing the imminent danger orders. PDR 23-27; C. Br. 23-27. Cumberland
requests that the Commission vacate the orders and citations, as well as the associated civil
penalties assessed by the judge.

10

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., 11FMSHRC2159, 2163 (Nov. 1989) ("R&P') (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)).
28 FMSHRC 551

The Secretary responds that the judge's decision should be affirmed. She contends that
substantial evidence supports the judge's conclusions that Cumberland violated section
75.334(b)(l) because the citations were based on significant problems with the bleeder system.
S. Br. 12-25. The Secretary also asserts that the judge.correctly determined that Cumberland was
on notice that the bleeder system violated the standard. Id. at 25-30. In addition, she argues that
the judge correctly found that the inspector did not abuse his discretion in issuing the imminent
danger orders. Id. at 30-34.
A.

Citation No. 7083200(Januazy16. 2004)

Section 75.334(b)(1) requires that, during pillar recovery, a bleeder system shall be used
''to control the air passing through the area and to continuously dilute and move methane-air
mixtures . . . from the worked-out area away from active workings and into a return air course or
to the surface of the mine." 30 C.F.R. § 75.334(b)(l). Section 75.334 is derived from section
303(z)(2) of the Mine Act, 30 U.S.C. § 863(z)(2), the pwpose of which is to '~uire bleeder
systems continuously to dilute, render harmless, and carry away methane effectively within the
bleeder system and to protect active workings from.the hazards of methane accumulations."
RAG Cumber/ant/ Res. LP, 26 FMSHRC. 63~, 647 (Aug. 2004), affd s~b nom. Cumberland Coal
Res., LP v. FMSHRC, No. 04- 1427, 2005 WL 3804997 (D.C. Cir. Nov. 10, 2005).
The Commission has recognized that, although section 7 5.334(b)(1) does not ·literally set
forth a requirement that a bleeder system shall :fimction effectively, such a requirement is implicit
in the standard's language and is consistent with the standard's underlying statutory purpose. Id.
Thus, the Commission has read section 75.334(b)(l) to require a bleeder system "to control air
passing through the area and continuously to dilute and move methane-air mixtures away from
active workings and into a return or to the surface in an effective manner." Id. ID: .other words, "a
bleeder system must effectively ventilate the area within the bleeder system and protect active
workings from the hazards of methane accumulations." Id.
Substantial evidence supports the judge' s determination that, on January 16, the LW49
wraparound bleeder system was not functioning as.required by section 75.334(b)(l). MSHA's
survey results show that a very small pressure differential in the No. 2 tailgate entry between.
crosscuts 83 and 87, i.e., 0.02 inches ofwater, 11 produced airflow in an outby direction. 27
FMSHRC at 3 IO; Gov't Ex. 26 (showing pressures of -0.67 inches of water at crosscut 87 and
-0.69 inches of water at crosscut 83, and an airflow quantity of 8,123 cubic feet per minute
("cfm'') near crosscut 83); Tr. 519-21. In the No. 2 tailgate entrybetween crosscuts 87 and 88,
there was no perceptible movement of air in either direction. Gov 't Ex. 26; Tr. 511. At crosscut

11

An "inch ofwater" is a unit of pressure equivalent.to 0.036136 pounds.p er square inch
("psi''). Am. Geological Inst., Dictionary ofMining, Mineral, and Related Terms 276 (2d ed.
1997).
28 FMSHRC 552

88, there were airflow quantities of 4,306 cfin enteriD.g BEP 30B from the ladders 12 and 4,042
cfm exiting BEP 30 in the No. 2 tailgate entry, indicating that there was no net movement of air
in the.tailgate portion of the gob. Gov't Ex. 26; Tr. 556, 11-29-30. Thus, the methane-air mixture
in the back comer of the tailgate was not being continuously diluted and moved away from the
worked-out area as required by the standard. Based on these swvey results, we believe the judge
reasonably concluded that the bleeder system was ineffective.
We reject Cumberland' s assertion that the judge erred in .finding that the January 16
citation for the ineffective bleeder system was riot duplicative ofthe Januaryl3 citation for
failure to comply with the ventilation plan. PDR 18; ·C. Br. 20-21. ·The Commission has held·
that citations are not duplicative so long as the standards involved impose separate and distiilct
duties upon an operator. Western Fuels-Utah, Inc. , 19 FMSHRC 994, 1003-05 (June 1997);.
Cyprus Tonopah Mining Corp., 15 FMSHR.C 367, 378 (Mar. 1993). AS the judge recognized,
the January 13 and 16 citations· allege non-compliance with different duties and aren9t based on
the same acts or omissions. 27 FMSHRC at 313. Additionally, the fact that both citations.were
abated by the approval of the January 21 ventilation plan does not render them duplicative. As
the judge foWld, different aspects of the·January 21 plan addressed the separate deficiencies, i.e.,
noncompliance and ineffectiveness, that gave rise to the citations. Id. Moreover, the judge aptly
noted that Cuniberland could have abated the January 13 citation by confonning the ~leeder
system to the December 9 ventilation plan rather than formulating a new plan for·MSHA's
approval. Id. at n.20; see Jt. Ex. 5 at 2 (extending citation "to give the operator additional tllne to
comply with the approved plan or to formulate a new plan and get it approved").
Likewise, we reject Cumberland's assertion that the judge erred in determining that
Cumberland's attempt to comply with a ventilation plan was not a defense to the January 16
citation. PDR 18; C. Br. 21 . The CommissiOn has previouslyheld·that compliance with a
mine's roof or dust control plan does not preclude a finding of a violation ofthe tinderlying roof
or dust control regulations. See, e.g., Southern-Ohio Coal Co., 10 FMSHRC 138, 140-41 (Feb.
1988) (concluding that compliance with an approved roof control plan is not c0ntrolling for
purposes of determining compliance with a roof control regulation); Utah Power & Light Co., 12
FMSHRC 965, 969(May1990), aff'd, 951F.2d292 (10th Cir. 1991) (concluding that
compliance with the terms of a dust control plan does not preclude a finding that an operator
violated the terms of a dust control regulation). Similarly, an operator cannot avoid a finding of
violation of section 75.334(b)(l) by arguing that it was complying with the provisions of its
ventilation-plan. Rather, an operator is required to comply with ventilation plan provisions,
which specify precautions and practices applicable to the particular conditions at a mine, in
addition to the more general provisions of section 75.334, which set forth ·a level of safety
required at all mines. See 57 Fed. Reg. 20,868, 20,900 (May 15, 1992). Given that conditions in
a mine may change unexpectedly, co~pliance with specific ventilation plan provisions may not
12

The ladders are two sets of entries behind LW49. The inner ladder is used to set up the
longwall face, and it eventually collapses and becomes part of the gob. The outer ladder is.used
for ventilation between the headgate and tailgate: Tr. 48, 72-74, 107-09; see Jt. Exs. IA & IOA.
28 FMSHRC 553

necessarily assure that the general protections afforded by ventilation regulations are being met.
Therefore, Cumberland was requir~ to comply with section 75.334(b)(l) independent of the
ventilation plan approval process, and it could be charged with violating the standard ev~ if it
was.fully complying with its approved ventilation plan. See Plateau Mining Corp., 28 FMSHRC
_ _ _ J slip op. at 11 & 20 (separate opinions of Comm'rs Young and Jordan), Nos. WEST 2002207 & WEST 2002-278 (Aug. 22, 2006).
With regard to Cumberland's argument that it lacked notice of the violation, we recognize
that section.75.334(b)(l) is broadly worded and that the concept of"effectiveness" is a general .
one. As the Commission has previously observed, however, "[m]any standards must be 'simple
and brief in.order to be broadly adaptab~e to myriad.circumstances.,,, . Alabama By-Prods. Corp.,
4 FMSHRC 2128, 2129 (Dec. 1982) (quotingKe"-McGee Corp., 3 FMSHRC 2496, 2497 (Nov.
1981)). Nonetheless, such broad standards must afford reasonable notice of what is required.or
proscribed. Alabama By-Prods., 4 FMSHR.C at 2129. When faced with a challenge that a s.a fety
standard fails to provide adequate_notice of prohibited or required conduct, the Commissiop has
applied an objective standard, i.e., the reasonablypru.dent.person test'. BHP Minerals Int'/ Inc.,
18 FMSHRC 1342, 1345 (Aug. .1996). The.appropriate test "is not whether the·operatQr had
explicit prior notice of a specific prohibition or requirement, but whether a reasonably prudent
person familiar with the mining industry ~d the protective purpo~es of the·standard would have
recognized.the specific prohibition or requirement of the standard." Ideal Cement Co., 12
·
FMSHRC 2409, 2416 (Nov.. 1990).
Substantial evidence supports the judge's determination that a reasonably prudent person
would have recognized that the bleeder syst~ was not functioning as required by secti()n
75.334(b)(l). As discussed above, MSHA's survey results indicated that the methane.-air mixture
in the back comer on.the tailgate side ofLW49 was not emerging from the inby BEPs. In
essence, the back comer of the tailgate was a dead airspace. In view of this fact, we believe that
a reasonably prudent person would have recognized that the bleeder system failed to
continuously dilute and move the methane-air mixture from the worked-out area away from the
active workings.

Based on the foregoing, we conclude~ substantial evidence supports the judge's
determination that, on January 16, Cumberland violated section 75.334(b)(l) and that
Cumberland had adequate notice that its bleeder system was not functioning as required by the
standard. Accordingly, we affirm the judge's conclusion and his assessment of civil pen~ty.
B.

Order No. 7066999 (February 4. 2004) and Order No. 7067001
·
(Februazy 7. 2004) 13

In his decision, the judge concluded that Tolliver did not abuse his discretion in issuing
the imminent danger orders on February 4 and 7. 27 FMSHRC at 327. In reaching this
13

Commissioner Jordan dissents from Part II.B of this opinion. See slip op. at 27.
28 FMSHRC 554

conclusion, the judge found that "Tolliver did not act solely on the basis of a single excessive
methane reading, either on February 4 or 7." Id. 'Rather, the judge found that Tolliver
"considered the presence of excessive methane and unexplained sudden rises in methane in the
system as a whole, and reasonably determined that the conditions he encountered on February 4
and 7 presented.imminent dangers to miners." Id. ·
As we explain more fully below, substaritial evidence does not support the judge's
determination that Tolliver reasonably concluded that, based on·the information available to him
at the time he issued the orders, the conditions on February 4 and 7 amoU:nted to imminent
dangers. Thus, we conclude that Tolliver abused his discretion.
·
Section 3(j) of the Mine Act defines "imminent danger" as the "existence of any
condition or practice in a coal or other mine which could reasonably be expected to cause death
or serious physical hann before such condition or practice can be abated." 30 U.S.C. § 802(j).
The concept of imminent danger is not limited to ba.Zards that·pose an immediate danger. R&P,
11 FMSHRC at 2163 (citing Freeman Coal Mining .Co. v. Interior Bd. ofMine Op. App.,'504
F.2d 741 (7th Cir. 1974)); see also Blue Bayou Sand & Gravel, Inc. , 18 FMSHRC 853, 858 (June
1996); VP-5MiningCo. , 15FMSHRC 1531, 1535(Aug.1993);1slandCreekCoalCo., 15
FMSHRC 339, 345 (Mar. 1993). Rather, "an ~ent danger exists when the.condition or
practice observed could reasonably be expected to cause death·or serious physical hann to a ·
miner if normal mining operations were.permitted to proceed in the area before the· dangerous
condition is eliminated.'' R&P, 11 FMSHRC at 2163 (quoting Eastern Associated Coal Corp. v.
Interior Bd. ofMine Op. App., 491F.2d277, 278"(4th Cir. 1974) (emphasis omitted)). J'o
.
support a finding ofimminent danger, an·inspeetor must find that"'the haz~dous condition has a
reasonable potential to cause death or serious injury.within a short period oftime." Utah Power
& Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991 ). Jn reviewing an inspector's :finding ·o r
imminent danger, the Commission must support the inspector' s :finding "unless there is evidence
that he has abused his discretion or authority." R&P, 11 FMSHRC at 2164 (quoting Old Ben
Coal Corp. v. Interior Bd. ofMine Op. App., 523 F.2d 25, 31 (7th Cir. 1975) (emphasis ·
omitted)).
We conclude that the judge erred in holding that, on February 4 and 7, Inspector Tolliver
did not abuse his discretion in issuing the·imilinent danger orders.
First, the record indicates that Tolliver did not exercise any discretion in concluding that
the conditions posed imminent dangers to miners because, prior to his inspections, he received
instructions to issue the orders if he found methane in excess of the limits specified in the
January 21 plan. Specifically, Tolliver testified that, on January 31, Pete Kros\inger,·another
MSHA inspector, instructed him to write an imminent danger order and a section 75.334(b)(l)
citation if he found more th3n 4.5% methane at any ofthe monitoring points. Tr: 829-30, 889.
Tolliver also testifie'd that, ~n February 4, Guley gave him 'the same instructiol1S. Tr. 83i-33,
860, 890, 901-02.
.
.
. .
.

28 FMSHRC 555

Although an inspector must have considerable discretion in issuing imminent danger
orders (R&P, 11FMSHRCat2164), the CQnstraints on discretion arise here from the directives
given to Tolliver to issue the orders based on a single criterion. This precluded the inspector
from conducting a requisite reasonable investigation of the facts in exerd.sing his discretion.
While s3.fety must be the paramount concern, the extraordinary measure of shutting down a mine
with a withdrawal order compels safeguards to ensure that an inspector's discretion is not abused.
See, e.g., Island Creek, 15 FMSHRC at 347-48 (vacating imminen~ danger orders issued as a
result of methane accumulations in a gob area
. where Secretary failed to. meet her burden of
proving that it was reasonable for inspectors, based on information available, to conclude that
mine conditions constituted innninent danger). Here, MSHA approved the procedures in
Cumberland's ventilation plan for de-energizing the longwall and taking corrective actions when
methane readings in excess of 4.5% were obtained at any of the monitoring ppints. Jt. Ex. 10 at
2; Tr. 902. However, based on contrary directions given to him, Tolliver issued the imminent .
danger orders before Cumber~and could take such measures. Tolliver's adherence to priQr
instructions without additional indicia of a hazardous condition, ''which could reasonably be
expected to cause death or serious p_hysical harm before such condition ... can be abated" (30
U.S.C. § 802(j)), clearly amounted to an abuse of.his discretion. 14
Second, substantial evidenc.e does not support the judge's finding that ''Tolliver did not
act solely on the basis of a single excessive methane reading" at crosscut 85 when issuing ~e
imminent danger orders. 27 FMSHR.C at.327. In fact, Tolliver explicitly and repeatedly testified
that the bases of his imminent danger ord~ w.ere the elevated methane readlngs at crosscut 85.
Tr. 847, 854, 887, 891, 902-03, 913, 9.18. For.instance, when asked why he issued the imminent
danger order on February 4, Tolliver's response was "[b]ecause at the.85 crosscut, I had 4.8 on
my hand-held detector." Tr. 847. Despite a generalized expression of concern for ·~e safety of
the miners," the elevated methane readings provided the sole evidentiarybasis for Tolliver's
concern.

.

We also :find unavailing the judge's :finding that Tolliver' s decisions to issue the orders
"were grounded more on his bona-fide concerns for, and evaluation of, the safety of miners, than
on a mechanical application of instructions related by other inspectors." 27 FMSHRC at 326.
The judge attempted to identify additional bases to support Tolliver's imminent danger
determinations by pointing to evidence of subsequent readings that Tolliver obtained at the
14

Tolliver' s actions in issuing the orders were also contrary .t o an MSHA policy that an
inspector cannot use section 107(a) orders for "control pUiposes" in the absence of an imminent
danger. I MSHA, U.S. Dep't of Labor, Program Policy Manual, Sec. 107, at 34 (2003)
("PPM}; see Oral Arg. Tr. 48-49. Tolliver was· instructed that, if he detected methane levels
above 4.5%, he was to issue imminent danger orders pursuant to section 107(a) without any
further consideration. In doing so, MSHA was using the ·orders as means to control methane
levels in the bleeder $ystem. Even though the PPM is not binding on MSHA, we find that its.
prohibitions are particularly appropriate here where MSHA's instructions removed Tolliver's
independent judgment in issuing the imminent danger orders.
28 ·FMSHRC 556

monitoring points at crosscut 82 and between crosscuts 73 and 74 as indications of a ''rapid rise
in methane concentrations" throughout the system. Id. However, Tolliver never testified that he
considered this evidence in issuing the orders. In fact, Tolliver testified that once he obtained. the
readings at crosscut 85 in excess of 4.5%, he issued the orders, took bottle ·samples~ ·and then
exited the mine. Tr. 864, 886. The judge even noted that the subsequent readings were obtained
by Tolliver on his way out of the mine, after he had issued the imminent danger orders. 27
FMSHRC at 326. Thus, they could not have served as·a basis for Tolliver's imminent danger
determinations.
·
The judge also pointed to the ''unexplained sudden rises in methane ill the system as a
whole" as a substantiating reason for Tolliver's imminent danger determinations. Id.·at 326, 327.
However, Tolliver's lack of understanding of the conditions through.out the mine at the time he
issued the orders in fact undermine his determinations that the conditions on February 4 and 7
amounted to imminent dangers. Tolliver testified that, at the time he issued the.orders, he did not
know specific conditions in certain areas of the mine. Tr. 851-53, 856-59, 863--64; 878, 881-83,
888, 897, 898, 900, 904, 907-08. For example, as the judge noted, Tolliver admitted that ''he did
not know, on either [February 4 or 7], whether·there were hiib methane concentrations in the
face area," despite testifying that he was concerned that methane was coming off the gob onto the
face. 27 FMSHRC at 325; Tr. 882, 896, 908. Nor did Tolliver inquire as to the cause of the rise
in methane level, despite admitting that he overheard miners discuss a curtain adjustment on the
headgate. Tr. 858-59, 888, 905-06. Tolliver also testified that he did not know the distance
between crosscut 85, where he obtained the elevated methane readings, and_the race, where he
was concerned about a potential ignition source. Tr. 863-86. Thus, the record evidence as a
whole substantially detracts from the judge's conclusion that'Tolliver did notbase his orders
solely on the methane·readings at crosscut 85. 15
·
Moreover, the evidence refutes Tolliver' s rationale for his imminent danger orders.
Contrary to Tolliver's vague concerns that gob air was coming onto the face, there were no
elevated methane readings at the face. Tr. 1380-81, 1522-23, 1581-85, 1621-24, 1642-43, 174448. As the judge noted, the "methane levels at all monitoring points declined to acceptable
levels" shortly after Tolliver issued the orders and the record indicates that the sudden rise in
methane occurred when a curtain on the headgate was adjusted. 27 FMSHRC at 325-26; Tr.
1536, 1741-44, 1749-50. Finally, the record reveals that no additional actions were required to
abate the citations and terminate the orders. 27 FMSHRC at 325; Tr. 1744-45. The judge failed
to reconcile·the foregoing evidence with his conclusion that Tolliver did not abuse his discretion.
Tolliver,s stated concerns about a potential explosion and the safety of the miners cannot

15

We disagree with our dissenting colleague's contention that the judge credited
Tolliver,s testimony that the bases ofhis imminent danger orders were more than the crosscut 85
readings. Slip op. at 32. Tolliver testified that the readings at crosscut 85 were the sole bases for
them {Tr. 891 ), and our colleague cannot avoid the lack of record support for the judge's
conclusion by labeling his finding as a credibility determination.

28 FMSHRC 557

overcome this contrary evidence or his lack of knowledge and inquiry, as evidenced by his
.
testimony, of the conditions present at the time he isstied the orders.

In s~ because the instructions left Tolliver no discretion to make an independent
judgment as to the existence of the imminent dangers and substantial evidence does not support
the judge's finding t:rult Tolliver acted on circumstances beyond the elevated methane readings at
crosscut 85, we regard his is~uance of the orders as abuses of discretion. Our.conelusion that
Tolliver abused his discretion is limited to the unique circwnstances of this case and is based on
the Secretary's failure to demonstrate that, based on the information available to Tolliver at the
time, it was reasonable (or him to conclude that the conditions in the mine co~tituted imminent
dangers. See Island Creek, 15 FMSHRC at 347-48.
Based on the foregoing, we conclude that substantial evidence does not support the
judge' s affirmance of the imminent danger orders. Accordingly, we reverse the judge and vacate
Order Nos. 7066999 and 7067001 and the associated civil penalties.
C.

Citation No. 7067000 (February 4. 2004) and Citation ~o. 7067003
(February 7. 2004) " .

.

. .

Commissioners are ev~y divided regarding whether.the judge correctly determined that,
on February 4 and 7, the LW49 wraparound bleeder system was not functiotiing.as required by
section 75.334(b)(l). Commissioners.Jordan and Young would affirm the po~on o(the judge' s
decision holding that Cumberland violated section 75.3_3 4(b)(l) on February 4 and 7. Chairman
Duffy and Commissioner.Suboleski would reverse that portion of the judge's _decision and vacate.
the citations. The effect of the split decision is to allow the judge's decision to. stand as if
affirmed. See Pennsylvania Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), affd on other
grounds, 969 F.2d 1501 _(3d Cir. 1992). The separate opinions of the Commissioners follow.
ill.
Separate Opinions of the Commissioners
Commissioner Ymmg, in favor of affirming Citation Nos. 7067000 and 7067003:
At issue here is whether Cumberland violated 30 C.F.R. § 75.334(b)(l) 011February4 and
7, 2004. The judge below thoroughly considered the record evidence and concluded .that the
sudden increases in methane, combined with other circumstances present in Cwnberland's mine
on the operative dates in question, amounted to violations of section 75.334(b)(l). I find no
material error oflaw in the judge's decision. The Commission's role on review is thus limited to
determining whether substantial evidence supports th~ _factual findings on which the judge has
based his conclusion of the violations. Under this test, the Commission may not "substitute a
competing view of the facts for the view [a judge] reasonably reached." Donovan ex- rel. Chacon
v. Phelps Dodge Corp., 709 F.2d ~6, 92 (D.C. Cir. 1983). ,
28 FMS}{RC 558

Based on the record evidence, I conclude that substantial evidence supports the judge's
detennination that, on February 4 and 7, the LW49 wraparound bleeder system was not
functioning effectively, in violation of section 75.334(b)(1). 1 27 FMSHRC 295, 323-27 (Mar.
2005) (AU). ·This finding is supported by evidence that sudden increases in methane
concentrations at or near the explosive range were detected ·a t the monitoring point at crosscut 85
in the No. 2 tailgate entry. Id. at 326.:27. In addition, sudden and significant methane increases
were detected at other monitoring points along the panel, s·tailgate side, indicating abuild-up of
methane in the bleeder system. Id. at 325-~7, 331.
··
On February 4, Inspector Tolliver found a significant increase iri the methane
concentration of the air exiting the BEP 30.regulator. 27 FMSHRC at 326; Gov't Ex. 34. The
methane concentration had increased from 2.0% at 12:39 p.m. to 3.0% at 1:22 p.in. Id. Tolliver
then proceeded to the monitoring point at crosscut 85. where he found that the methane
concentration of air flowing out of tlie sampling tube2 had increased from 3.0% at 12:37 p.m. to
4.8% at 1:25 p.m., a level that exce~ed the 4.5% limit specified in the January 21 plan. 27 ·
FMSHRC at 324, 326; Gov't Ex. 34; Jt. Exs. IO & IOA; Tr. 847-48, 945-48. While there is
some question about the accuracy ofTolliver's methane reading; the judge's conclusion that it
was supported by comparable measurements obtained by Cumberland and UMWA personnel
using their handheld detectors is not inherently linreasonable. See 27 FMSHRC at 324; Tr. g47.:
48, 892, 917-18, 943-48, 960 (the measurements were take~ twice and tlie·detectors differed no
more than three to four tenths). Tolliver took two bottle samples, then issued the imminent
danger order and citation:, shutting down production. Tr. 209, 849-66, 918-19, 948-49. After
Tolliver issued the imminent danger order, and as he exited the mine; he took addi~onal
measurements and found that methane at-the monitoring point at crosscut 82 had increased from
3.3% at 12:35 p.m. to 4.4% at 1:30 p.m., methane at BEP 30A had increased froin 1.1 % at 12:25
p.m. to 1.6% at 1 :35 p.m., and methane at the monitoring point in the No. 1 tailgate entry
between crosscuts 73 and 74 had increased from 1.8% at 12:20 p.m. to 2.1 % at 1 :40 p.m. 27
FMSHRC at 326; Gov't Exs. 18 & 34.
On February 7; Tolliver·experienced a similar situation. 27 FMSHRC at 326; Tr. 869.
Methane levels at the various monitoring points were refatively steady and·within acceptable
limits, with the exception of the monitoring point between crosscuts 73 and 74, which was .
fluctuating in the 2.0% range and causing interruptions to production. 27 FMSHRC at 326;
Gov't Ex. 20; Tr. 870. At approximately 10:00 a.m., however, methane levels began to climb

1

Unlike our review of the imminent danger orders (slip op. at 10-14), the standard of
review of a section 104(a) citation is grounded solely on the conditions as they existed - i.e.,
whether substantial evidence supports the judge' s finding of a violation based on the record
evidence - not on the inspector's knowledge or discretion.
2

· Tolliver's readings were taken thtough a tube installed approximately 1 foot from the
roof rather than through the pipe installed approximately 3 feet from the floor. See Tr. 593-602;
Gov't Exs. 18 & 20.

28 FMSHRC 559

dramatically. 27 FMSHRC at 326; see Gov't Ex. 20 (showing methane increasing at crosscuts
82 and 85 and BEPs 30 and 30B). At 12:20 p.m., Tolliver measured a ~ethane concentration of
5.0% flowing out of the sampling tube at crosscut 85, a substantial increase over the previous
reading ofless than 3.0% approximately 2 hours earlier and a: level that exceede.d the 4.5% limit
specified in the January 21 plan. 27 fl4SHRCat 326; ~v't Exs~ 6, 7, 20, & 35; Jt. Exs. 10 &
1OA; Tr. 871-72, 875, 953. The judge again found 1;hat Tolliver' s methane reading was
consisten~ with reading~ taken by accompanying Cumberland and UMWA personnel,_ who
obtained comparable measurements using their handheld detectors. 27 FMSHRC at 325; see Tr.
871-72, 874, 917-18, 952-55 (the measurements were taken twice and the detector readings were
"about the same" and ']>retty close''). Tolliver took bottle samples and then issued the imminent
danger order and citation. 27 FMSHRC at 325; Tr. 873-88. At 12:35 p .m., Tolliver also
measured a methane concentration of 4.1% at BEP 30B. Tr. 903-05, 965-66.
Moreover, Tolliver testified that on February 4, when he "hit this spike ... or thi.s slug [of
methane] at 85 crosscut, [he] knew that something had happened,, and he was "afraid . .. that the
gob air might be coming on the face air on the longwall." 27 FMSHRC at 324-26; Tr..851-52;
see also Tr. 949-50, 965-66 (similar concerns of Jeffrey Miha]).ik, UMWA safety committee
member). Tolliver explained that he "didn't thlnk they had enough positive pressure on the gob
to carry away the methaD.e on the back." Tr. .856-57. He. considered.the amount of methane · . .
detected at cross~ut 85 as an indication that the bleeqer syst,~ "wasn't working properly" and· .
that it was "not effective." Tr. 856, 858. Once more, on Feb.mazy 7, Tolliver was co~cerned.by .
the rapid increase in methane concentrations, stating that he was "afraid the ·methane was .coniin.g.
off the gob, going to the .active longwall face" because he thought "there wasn\enougI:i pressilre
on the back side." 21 FMSHRC at 326; Tr. 878, 881; see also. Tr. ~55, 959, 965-66 (similar
.
concerns ofMihallik). Again, Tolliver considered.the,high methane concentration as an
indication that tli~ bleeder .s ystem was "ineffective." Tr. 880-Sl, 883.
·
Likewise, the testimonyofMSHA's expert, John Urosek, also supports the judge's
determination that the bleeder system was ineffective on February 4 and 7. According to Urosek,
the size of the gob had increased due to continued mining and th.e bleeder system had become
more fragile and incapable of handling methane liberation. Tr. 1150, 1155. Urosek opined that
the sudden increases in methane, in conjunction with the airflow changes causec,i by the
adjustment or movement of curtains on the headgate, indicated that methane was "sitting in the
internal air flow paths" of the gob, extending "all the way to the face." 27 FMSHRC at 325; Tr.
1150-52, 1155-56. Urosek stated, ''we don't know what the pressure differentials were" across
the longwall face and into the tailgate entries, but "[w ]e know that they were insufficient to cause
the air flow to move in the proper direction to dilute the methane."3 Tr. 1232-34, 1247-48, 125657. Urosek explained that "the inadequate pressure differentials, and therefore the low air

3

The only readings known on February 4, were an airflow quantity of 15,876 cfm and a
pressure differential of 0.25 inches o(water at BEP 30B (Tr. 895), and on February 7, an airflow
quantity of 15, 120 cfin and a pressure differential of.0.25 inches,of water at BEP 30B (Tr. 90304). See C. Post-Hearing Br. 46 n .22; PDR 23; C. Br. 30 (correcting transcript to read "0.25").
28 FMSHRC 560

flows ... allowed that methane to stay very close to·that longwall face, so changes, inadvertent or
on putpose, that occur somewhere in the system could allow that methane to come on the
longwall face." Tr. 1248-49. The judge appears to have credited Urosek's testiinony over that of
Cumberland's witnesses who did not believe that methane was backing up to the face because
there were no high methane readings at the face and the pressure differentials and airflows were
away from the face toward the back of the gob. See 21 FMSHRC at 325, 327 (citing Tr. 138081, 1522-23, 1581-85, 1621-24, 1642-43, 1744-48). Based on the testimony ofMSHA's expert,
the judge could thus reasonably conclude that the bleeder system was not effectively diluting and
moving methane awayfroin the active workings.
·
The record also indicates that shortly after Tolliver issued the orders and citations on
February 4 and 7, methane levels at all the monitoring pointS decreased to acceptable levels, and
production resumed each evening. 27 FMSHRC at 325..:26; Gov't Ex. 18. In both instances, the
increase in methane was temporarily caused by the adjustment of a ventilation curtain on the
headgate side ofLW49. 27 FMSHRC at 325; Tr. 858-59; 905, 951, 958, 1536, 1741-45.
Nevertheless, even a minor adjustment can have a significant impact, as evidenced by the facts
here, where the margin between acceptable levels of methane and highly dangerous explosive
levels of methane was so narrow. This is particularly sigruficant considering the fragile nature of
Cumberland's bleeder system and the challenging mine erivironment. 27 FMSHRC at 302.
Cumberland's mine was identified as a gassy mine subject to gpot iiispections every 5 days · ·
pursuant to section 103(i) of the Mine Act, 30 U.S.C. § 813(i); and had been having significant
problems with its wraparound bleeder system. ·2 7 FMSHRC at 298-99. All of these factors
could reasonably be construed as showing that the bleeder system was incapable of continuously
diluting, rendering harmless, a.lid carrying away increased levels of methane entering tlie system.
On appeal, Cumberland attempts to raise as a defense ·that it ·did not have adequate notice
that MSHA would rely on the readings it obtained at locations other·than BEPs, such as the No. 2
tailgate entry which effectively was part of the gob, to evaluate the bleeder system. PDR 14-15;
C. Br. 14-17; C. Reply Br. 13. However, the defense is unavailable here. Cumberland's January
21 ventilation plan clearly designated numerous locations within the bleeder system, inclµding
the locations at issue here, as monitoring points where data was to be collected. 27 FMSHRC at
302-03; Jt. Exs. 10 & 1OA. While the ventilation plan merely identified action levels, rather than
set absolute limits for methane at all designated monitoring points, it is reasonable to expect that
MSHA would use the data collected at these points to evaluate the bleeder system. Indeed, that
was the point of the ·additioiial monitoring locations. As MSHA' s Assistant District Manager ·
Thomas Light testified, the evaluation p.oint at crosscut 85 was necessary because the original
evaluation point at BEP 30 "didn't actually give us any indication of what was happening on this
tailgate side of the bleeder system ... so in effect, we weren't evaluating the bleeder system
[using BEP 30]." Tr. 167: Light further testified ~t the evaluation points are established
''based on what is ~tually necessary to evaluate the adequacy of the system." Tr. 168. · MSHA
Inspector Ronald Hixson and expert witness John Urosek ~so testified about the need for the
additional evaluation points, including the point at crosscut 85. Tr. 743-45, 1260-61. If
continuous effectiveness is, as we have held, a requirement for all bleeder systen:is, Cumberland
28 FMsHRC 561

cannot assert that it lacked Q.Otice when monitoring points established by MSHA to evaluate
system effectiveness (with the operator's acceptance) were, in fact, used to determine whether the
bleeder system was operating effectively.4

In this case, the data collected adequately support the judge's finding that the system was
not effectively diluting and carrying away methane on February 4 and 7.5 Because ~bet:land
4

My colleagues confuse the notice question by focusing on.whether Cumberland ·
received adequate notice "regarding how the new data [obtained at crosscut 85] would be used
for enforcement purposes" and whether ''MSHA official~ had informed Cumbre~and that they
believed an e~cessive reading at crosscut 85 would constitute a violation of the standard." Slip
op. at 24, 25. However, the readings at crosscut 85 were but .o ne of several indicia of the
system's ineffectiveness which .t he judge found in support of the violations. Moreoy~r, the
Commission has not required that an operator receive actual notice .o f the Secretary's
interpretation of a cited standard. Rather, the C~mmission has applied, as my colleague$
acknowledge (slip op. at 23-24), an objective standard of notice, i.e., the reasonably .prudent .
person test. E.g., Otis Elevator Co., 11FMSHRC1896, 1906 (Oct. 1989), affd, 921.F.2d.1285,
1292 (D.C. Cir. 1990); Alabama By-Prods. Corp., 4 FMSHRC 2128, 2129 (Dec.. 1982). As
discussed above, Cwnb.er~and.reasonably would.have IQJ.own that MSHA woul4 rely upon the
me~e readings obtained .at the additional monitoring p~ints, including cro$SCUt 85, to
determine whether its bleeder system was operating effectively.
..
.
Furthermore, while Cumberlan4 could have refused to adopt what it and my co~leagues
have characterized as an '<unprecedented" monitoring of the gob (Oral Arg. Tr. 5; slip op. at 21),
and then challenged the citation, it instead faxed.to MSHA its revised veQ.til~on plan including
the provision it now challenges on notice grounds. Tr. 169 (Hixson testified -t hat MSHA
received the plan by fax and a phone call agreeing to the stipulations required).
5

The evidentiary threshold for proving a ventilation system is ineffective under section
75.334(b)(l) varies significantly from the burden required to C$tablish that_the violation amounts
to an imminent danger. See 30 U.S.C. § 802(j) ("'imminent dan~' means the e;x:istence of any
condition or practice in a coal or other mine which could reasonably be expected to cause death
or serious physical harm before such condition or pra<;tice can be abated" (emphasis added));
Utah Power &Light Co., 13 FMSHRC .1617, 1622 (Oct. 1~91) (to support a finding ofimminent
danger, an inspector must find that "the hazardous condition has a reasonable potential to cause
·
death or serious injury within a short period oftime" (emphasis added)). Jn particular,
intermediate measures which might address a bleeder system' s ineffectiveness, including
adjustments to the system and suspension of production, wpuld not sufficiently ameliorate the
hazard of an imminent danger fQund by an inspector so as to prevent serious injury or death to
miners. While I conclude that the record here supports the judge' s .findings ofthe s~tion
75.334(b)(l) violations, as noted previously (supra, slip op. at 11),. the record cannot sustain the
conclusion that the inspector reasonably applied his discretion
considered the facts known or
available to him upon reasonable investigation to determine that the conditions amounted to an

and

28 FMSHRC 562

was able to negotiate its ventilation plan with MSHA through the plan approval process,
Cumberland can be held to both know the content of the plan and be bound by its provisions.
Thus, it is neither unfair nor inappropriate for MSHA to rely upon readings taken at designated
monitoring points in the No. 2 tailgate entry to detenninewhether the bleeder system was
fimctioning as required. Accordingly, I conclude that .Cumberland had.adequate notice here;6
In sum, I believe that substantial evidence supports thejudge's findings that, on February
4 and 7, there were sudden and significant increases in methane concentrations along the tailgate .
side of LW49, particularly at the monitoring point at crosscut 85, indicating a build-up of
methane in the bleeder system.· Based·on the circumstances in this case, the judge correctly
determined that, on both dates, Cumberland violated -section 75334(b)(1) because its bleeder
system failed to effectively dilute and move methane away from the active workings.

For the foregoing reasons, I would affirm the judge's decision regarding the f:ebruary 4
and 7 citations.

imminent datlger.
6

I reject Cumberland's argument that it cannot be cited for violating section 75.334(b)(l)
because it was in oompliance with its January 2 J. ventilation ·plan. PDR 18-19; C. ·Br. 23. As
discussed supra, Cumberland's duty to comply with the ventilation plan and its duty to have an
effective bleeder system are separate and distinct and section 75.334(b)(l) can be enforced
irrespective of ventilation plan requirements. See 21 FMSHRC at 312 n.19.
28 FMSHRC 563

Chairman Duffy and Commissioner Suboleski, in favor of reversing and vacating Citation Nos.
7067000 and 7067003:
We disagree with our colleagues' determination to affirm the judge's ruling upholding the
citations issued to Cumberland on February 4 (Citation No. 7067000) and February 7 (Citation
No. 7067003) and would reverse that portion of the judge's decision. Although we agree with
our colleagues that Cumberland violated 30 C.F.R. §. 75.334(b)(l) on January 16, our review of
the record indicates that the circumstances surrounding the Febr.uary 4 and 7 citations are
significantly different from those on January 16. .We dissent on two separate grounds. The
judge's determination.that Cumberland violated section 75.334(b)(l) on February 4 and 7-is not
supported by substantial evidence, and, in any event, Cumberland was not provided sufficient
notice concerning what constituted a violation ofthe standar~ and how certain data would -b e
used by MSHA for enforcement purposes.
A.

Substantial Evidence

We conclude that there is not substantial evidence to support the conclusion that
Cumberland' s ventilation system was ineffectively diluting and removing methane from
Longwall Panel No. 49 on February 4 and 7. Rather, the evidence shows only that certain action
levels in Cumberland's revised ventilation plan had been triggered - action levels that required
production to cease temporarily. As -explained below, MSHA' s citations were based on an
unprecedented theory of ~e;,tSUring methane levels within the gob itself to allege that a
ventilation system was not functioning effectively.
At the outset, it is highly significant that the judge never directly addressed in any detail
the specific issue of whether the conditions on February 4 and 7 constituted a violation of section
75.334(b)(l). Instead, the judge focused on the separate issue of whether the inspector's issuance
of imminent danger orders on those dates should be upheld and concluded that the inspector "did
not abuse his discretion" in issuing the imminent danger orders. 27 FMSHRC 295, 325-27 (Mar.
2005) (AU). Without further discussion, he then summarily stated that: "For the reasons stated
above, I find that the bleeder system was ineffective on February 4 and 7, as alleged in Citation
Nos. 7067000 and 7067003. It was not effectively ventilating the area within the bleeder system
and protecting the active workings from hazardous methane accumulations." Id. at 327.
However, facts that would justify the issuance of an imminent danger order might or might not
establish that section 75.334(b)(l) had been violated. The latter issue involves a separate inquiry.
See Utah Power & Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991) (imminent danger orders can
be issued regardless ofwhether the Mine Act or the Secretary's regulations have been violated).
Thus, the judge' s failure to adequately discuss the evidence that he believed established .
violations of section 75.334(b)(1) on February 4 and 7 apart from the imminent danger orders
would require, at the very least, a remand.. Mid-Continent Res., Inc., 16 FMSHR.C 1218, 1222-23
(June 1994) (remand is appropri~e when judge fails to adequately address evidentiazyrecord and ·
explain reasons for decision).

28 FMSHRC 564

Moreover, our decision to vacate the Fe~ruary 4 and 7 imminent danger orders in this
case seriously calls into.question the judge's conclusion that the Secretary met her burden of
proving that section 75.334(b)(l) was violated on those same dates~ In Part II.Rofthis opinion, a
majority of the Commission concludes that substantial evidence does not support the judges ·
decision to uphold the February 4 and 7 imminent danger orders and that the inspector abused his
discretion in issuing the orders. Slip op. at 10-14. The majority holds that Inspector Tolliver
improperly exercised his discretion because he had been instructed by other inspectors to issue
imminent danger orders for any methane readings that exceeded any monitoring limits in
Cumberland's revised.JanuarY 21 ventilation plan~ 27 FMSHRC at 324; see slip op.. at 11-12.
Just as the in8pector was directed to issue imminent danger orders if readlllgs exceeded 4.5% at
crosscut 85, he was likewise directed to issue citations for those same·readings. ·Id. Accordingly,
it is unclear to what extent the inspector exercised independent judgment in charging that the .
ventilation sy~tem was functioning ineffectively in violation ofsection 75.334(b)(1)~
In deciding whether the conditions at Cumberland;s mine o~ February 4 and 7 constituted
a violation of section 75.334(b)(1 ), it is important to recognize what Inspector Tolliver did not
find. The inspector did not find any indica~ion that ~e system 'Yas failing to continuously dilute
and move air away from the active workiD.gs. He did not find that methane levels·had reached
action levels at anyofthe BEPs. 1 He did not.fimian excess leyel ofm~thane the travelahle
bleeder entries. He did not find weak air flow in'the gob. He did not find that there Wen~ high
readings at the face or that any alanns at the face had been triggered. 27 FMSHRC at 325;
Tr. 882, 896, 908. Finally, he did ·not find that the air was moving iii·the 'w rong. direction in any
of the entries or in the gob.
··
·
·

in

Although ail the factors outlined above would indicate.that the system ·was·functioning ·
effectively, MSHA nevertheless issued the two citations in question based on readings taken in
the gob itself. This unprecedented approach raises serious problems. The inspector took
methane readings at monitoring pipes that had been installed at MSHA's insistence in crosscut
85, which is clearly located in the dilution zone of the gob. It is undisputed that methane levels
will pass through the explosive range (5% to 15%) witl$1 the dilution zone of the gol». Indeed,
the Secretary's own witnesses testified that the gob may contain air with methane mixtures ·
anywhere between 0% and 100% and that the gob is expected to have regions in which explosive
methane levels will be found. Tr. 709-10, 1031-32, 1219, 1225. Methane levels in the gob itself
have never been a basis for citing an operator for violating ventilation standards. See Island
Creek Coal Co., 15 FMSHRC 339, 350 (Mar. 1993) ("If the Secretary believes that specific·
accumulations of methane create a hazard in gqbs or other inactive areas of underground coal
mines, he should consider promulgating safety standards te> deal with this problem."). The
proper test of whether a ventilation system is fun(!tioning effectively is whether an adequate
quantity of air continues to move in the tjght direction and whether the air is adequately diluted
by the time it reaches the BEPs ·and enters the travelable bl~er entries. See RAG Cumberland
1

Indeed, the inspector apparently did not even attempt to take a subsequent reading at
BEP 30 or BEP 30B after detecting a methane reading of 4.5% at crosscut 85. ·
28 FMSHRC 565

Res. LP, 26 FMSHRC 639, 648-51 (Aug. 2004), affd sub nom. Cumberland Coal Res., LP v.
FMSHRC, No. 04-1427, 2005 WL 3804997 (D.C: Cir. Nov: 10, 2005) (ventilation system was
ineffective ~here air quantities were inadequate and high methane readings were _occurring in
travelable bleeder entries).
·
The judge seems not to have fully comprehended the critical fact that the high methane
readings on February 4 and 7 took place, not in a travelable bleeder entry or at a designated BEP,
but in the gob - an area in which the presence of explosive methane mixtµres was not
.·
unexpected or contrary to any regulation. Indeed, the judge's opllrion c_o ntains no exi)lanation of
his rationale.
rel~g upon the gob readings at crosscut 85 in upholding the February 4 and 7
citations. The readings in crosscut 85 may have been a warning to watch for high methane levels
at the BEPs and travelable bleeder entries and,.by the terms of the revised ventilation plan, they
required that power to the face be cut o:ff.2 However, they did not establish that the system was
ineffective - particularly given the fact that all other readings indicated that the system was ·
functioning effectively. There is no ~vidence to show that there was insufficient aii volume to
dilute methane below the required ]eyel at the BEPs. · .
·

for

. Although the judge also relied on #lcreases in methane levels that took place at other
monitorillg points within the tailgate entry to su.pport the imminent &mger. orders (27 FMSHRC
at 326-27), those increa5e~ are not .s ufficient to condude that_the ventilation System itseifwas ·
failing. First, while the judge fo1JI1d that the inspector did not act solely on the basis of a single
high methane reading in crosscut 85 on each day, we' have .already concluded, in v~atnig the ..
February 4 and 7 imminent danger orders, that this finding is not supported by substantial · .
evidence. Slip op. at 12-14. Second, methane .fluctuations in. the gob are to be expected and
be caused by a number of sources. Indeed, the short-duration increases in readings in the tailgate
entries were caused by specific events. On both February 4 and 7, the increases were preceded
by the adjustment of a ventilati~n-curtain in a headgate entry. Transitory increase$ in readings
following .such events would not be unexpected. Because the inspector was instructed by his .
supervisors to issue a citation iftlie reading at crosscut 85 in 'Ute gob exceeded 4.5%, the
inspector failed to make an overall assesSII.lent of the ventilation system to determine whether it
was functioning effectivdy. Ai:though the inspector cited indications ofmethane fluctuations

can

m

2

MSHA had insisted that Cumberland install the pipes in crosscut 85 after Cumberland
was cited for violating section 75.334(b)(l) on January 16. 27 FMSHRC at 302. The Jmmary.21
revised ventilation plan provides that a methane reading exceeding 4.5% at certain monitoring
points, includ.irtg the one in crosscut 85, "will cause power to be deenergized on the longwall ·
face and inimediate corrective action to be taken." Jt. Ex. 10. Although the revised ventilation
plan called for the pipes to be installed, the plan does not provide that a reading exceeding 4.5%
at crosscut 85 indicates th.at the system is functioning ineffectively or that section 75.334(b)(l)
has been violated.
·
28 FMSHRC 566

the gob, he did not otherwise establish that air quantities were inadequate; that airflow was
reversed, or that the critical measurements at the BEPs exceeded permissible levels.3
For the reasons set forth above, we conclude that the judge's decision to uphold the
February.4 and 7 citations is not supported by substantial evidence. Given all the indications that
the system was .functioning effectively on those dates, the readings within the gob itself and
transitory increases in readings at certain other monitoring points do not provide a sufficient ·
basis for concluding that Cumberland's ventilation system was failing to effectively dilute·and
move methane away from the active work:irigs on February 4 and 7.
B.

Notice

We further conclude that the February 4 and 7 citations should also be vacated because
MSHA did not provide adequate notice to Cumberland as to how it would interpret and apply the
standard and the January 21 revised ventilation plan, and what criteria it would u8e in issuing
citations. In particular, MSHA took the unprecedented aj>proach of relying on methane readings
in the gob to charge that section 75.334(b)(l) was being violated.
·
We note that the judge's opinion did not address at all Cumberland's arguments below
that it was denied fair notice with regard to the Febrllaty 4 and 7 citations. Although the judge
did address the question of notice in connection with the January 16 citation (27 FMSHRC at
313-15), that discussion does not resolve the notice.issue for the February 4 and 7 citations. In
particular, resolution of the notice issue hinges in large part on certain provisions in the January
21 revised ventilation plan and MSHA' s new policy regarding how those provisions would ·be ·
used for enforcement purposes. Accordingly, beeause the judge never addressed the notice issue
for the February 4 and 7 citations, at the very least, a remand ·of the notice issue would be
necessary.
To .avoid due process problems stemming from an operator's asserted lack of notice, the
Commission has adopted an objective measure (the "reasonably prudent person" test) to
determine if a condition is violative of a broadly worded standard. That tes~ provides:
[T]he alleged violative condition is appropriately measured against
the standard of whether a reasonably prudent person familiar with
the factual circumstances surrounding the allegedly hazardous
3

Our colleagues also contend that the testimony ofMSHA's expert witness, John
Urosek, supports the judge's determination that the ventilation system was ineffective on

February 4 and 7. Slip op. at 16-17, 32-33. However, while the judge noted Urosek's testimony
in discussing the imminent danger orders (27 FMSHRC at 325), he did not purport to rely upon it
for any purpose. In any event, the judge could have relied upon Urosek'-s testimony only if he
had also discussed and weighed the directly countervailing testimony of three of Cumberland's
witnesses (Robert Kimutis, Robert Bohach, and John Dzurino). See id.
28 FMSHRC 567

condition, including any facts peculiar to the mining industry,
would recognize a hazard warranting corrective action within the
purview of the applicable regulation.

Alabama By-Prods. Corp., 4 FMSHRC 2128, 2129 (Dec. 1982); see ~[so Asarco, Inc., 14
FMSHRC 941, 948(June1992). As the Commission stated in/deal Cement Co~, 12 FMSHRC
2409, 2416 (Nov. 1990), "in interpreting_and applying broadly worded standards, the appropriate.
test is not whether the operator h~d ex°plicit prior notice.of a specific prohibition or requirement,"
but whether a reasonably prudent person would have ascertained the specific prohibition of the
standard and concluded that a hazard existed. The Commission has explained that
·
the reasonably prudent person test must be based on conclusions
drawn by an objective observer with .knowledge of the relevant
facts. It follows that the facts to be considered must be those
which were reasonably ascertainable prior to the alleged violation.
Moreover, the test must be applied based on the totality of the
factual circumstances involved, not jtist those which tend to favor
one party or the other.

U.S. Steel Mining Co;, 27 FMSHRC 435, 439 (May 2005) (citati()ns omitted).
Application of the reasonably prudent,person test here demonstrates that such an
objective observer would not have concluded that the ventilation system for LW49 was
..
functioning ineffectively within the meaning of section 75..334{1>)(1) on February 4 or 7. A_s
explained abo.ve with regard to whether violations of the standard occurred on those dates, the
reasonably prudent person would have been aware of the fact that all the principal indicators
showed that the ventilation system was effectively diluting and moving methane away :from the
working section. Methane levels at all the BEPs were in the acceptable range. Methane levels in
the travelable bleeder entries were in the acceptable range. 4 _ There was not weak air flow in the
gob. No alann.s at the. face had been triggered. Air was not mo$g in the wrong direction.
Although the reading in excess of 4.5% at crosscut 85 in the gob required, ~der the revised plan,
that the face be deenergized, this would not have indicated that the system itself was ineffective.
In a gassy mine such as this, ceasing production after such an action level is reached is not at all
unusual. Nothing in the revised plan provided ~~ triggering .the action level constituted a
violation of the standard, and there was no evidence that MSHA officials had informed
Cumberland that they believed an excessive reading at crosscut 85 would constitute a violation of
the standard.

4

We note that, downstream of the longwall face.at the monitoring point between
crosscuts 73 and 74, the methane levels fluctuated around the 2% level. Goy't Exs. 18 & 20.
However, this is indicative of inadequate dilution in meeting the 30 C.F.R. §.75.323(e) standard
and not indicative of a violation of section 75.334(b)(I).
28 FMSHRC 568

Similarly, transitory increases in certain readings in the tailgate entries would not have
indicated that the system was functioning ineffectively. ·The reasonably prudent mine operator
would have inquired into the cause of the rise in methane levels and become aware that
ventilation curtains in the headgate entries had been adjusted shortly before the increases. The ·
hig4 reading at crosscut 85 and the momentary increases in the tailgate entries would have simply
alerted a reasonably prudent mine operator that readings at the face, the BEPs, and the ttavelable
bleeder ·entries should be closely watc:\led to determine if those _readings would reach their action
levels. The evidence indicates that they did not. In short, a reasonably prudent mine operator,
aware ofthe relevant facts on February 4 and 7, would not have concluded that tlie system was
functioning ineffectively. It follows th.at Cumberland did not have adequate notice ofwhat
MSHA believed constituted a violation of section 75.334(b)(1) and what conduct MSHA
expected from it.
Our colleagues argue that Cumberland cannot raise lack of notice as a defense ·here
because the January 21 revised ventilation plan designated certain locations within' the bleeder
system, inCluding crosscut 85, as monitoring.points where data would be collected. According to
them, "[w]hile the ventilation plan merely identified action levels [for those new monitoring
points], rather than set absolute limits for methane at all designated monitoring points, it is
reasonable to expect that MSHA would use the data collected at these points td evaluate the
bleeder system." Slip op. at 17.

We strongly disagree. Despite the fact that MSHA insisted that the new monitoring
points be included in the revised ventilatj.on plan, there is no evidence - in the language of the
plan or elsewhere·- that MSHA provided notice to Cumberland regarding how the new data
would be used for enforcement purposes. Cumberland could reasonably expect that the data including methane readings from the gob itself- would be used to gauge generally how well the
wraparound bleeder system was doing after certain modifications. It could also reasonably
expect that, if the action levels in the gob were triggered., MSHA would look at the ventilation
system for LW49 in its totality to determine if the system was functioning effectively and that the
detennination would be based on the traditional indicators - methane readings at the BEPs, in
the travelable bleeder entries, and at the face as well as measurements of air quantities and
direction. Cumberland could not reasonably expect that MSHA would be taking the
unprecedented approach of treating high methane readings in the gob itself as violating its
regulations and that the new monitoring points would be used primarily as enforcement weapons.
More specifically, the problem of lack ofnotice is heightened here by the fact that
MSHA's internal policy was apparently to use·reading$ above 4.5% from crosscut 85 as a
sufficient basis for issuing citations to Cumberland for violating section 75.334(b)(1 ). Inspector
Tolliver was instructed to issue a citation if the 4.5% level was exceeded. 27 FMSHRC at 324.
fu other words, an e?'cessive reading from crosscut 85 would apparently not be just one factor to
be considered in determining whether the ventilation system was functioning effectively; instead,

28 FMSHRC 569

MSHA would treat such a reading as a per se violation of the standard. s This indicates that not
only was Cumberland not given proper notice ofMSHA' s interpretation oftbe standard and plan
provisions, but that Cumberland may have been affirmatively misled by MSHA regarding the
reasons why the new monitoring points were being required. 6
Beca1:18e MSHA was changing its long-standing policy regarding how methane readings
from within the gob itself would be used for enforcement purposes, it was incumbent upon the
agency to advise Cumberland of the policy change before taking,enforcement action. ''Those
regulated by an administrative agency are entitled to 'know the rules by which the game will be
played."' Alaska Professional Hunters Ass 'n v. FAA, 177 F.3d 1030, 1035 (D.C. Cir. 1999)
(additional rulemaking was necessary where an agency' s new interpretation ofa regulation
conflicted with the long-standing interpretation given to it by local agency officials).
In short, when MSHA decided to issue citations for methane levels in the gob rather than
at the bleeder entries and BEPs, Cumberland was entitled to notice of the change ni the.
interpretation and application of the standard and the ventilation plan. We would vacate.the
February 4 and 7 citations for lack of notice.
·
For the foregoing reasons, we would reverse the judge' s decision regarding Citation·Nos.
7067000 and 7067003 and vacate the citations and the associated peDalties.
·
·

5

Indeed, as a majority of the Co.Jlll1rissioners has held in this case, "substantial evidence
does not support the judge's finding that 'Tolliver did not act solely on the basis of a single
excessive methane reading' at crosscut 85 when issuing the [February 4 and 7] imminent danger
orders." Slip op. at 12.
6

Cumberland had agreed to MSHA's provision to cut power to the section when
methane levels exceeded 4.5% at the gob monitoring points. There is no indication that
Cumberland was aware that the monitoring points would be used for any other purpose.
28 FMSHRC 570

Commissioner Jordan, in favor of affirming Citation Nos. 7067000 and 7067003 and Order Nos.
1066999
1061001:
·

and

I agree that substantial evidence supports thejudge's detennination that on January 16,
Cumberland viol~ted 30 C.F.R. § 75.334(b)(l) because its bleeder system failed to effectively
dilute and move methane away from the active workings: ·I also concur with Commissioner
Young' s analysis and conclusion affirming the portfon of the judge' s:decision holding that
Cumberland violated section 75.334(b)(l) on February 4 and 7. 1 However, I dissent from the
majority's decision to reverse the judge and vacate the immment danger orders issued on those
dates.
· ·
·
Section 3(j) of the Mine Act defines "imminent danger" as the "existence of any
condition or practice in a coal or other mine·which could reasoruilily be expected to cause death
or serious physical hann before such condition or practice can be abated." 30 U.S.C. :§ 802(j).
To support a finding ofimminent danger, an inspector must conclude that ''the hazardous
condition has a reasonable potentialto cause death or serious injury within a short period of"
time." Utah Power·& Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991). In reviewing an ·
inspector's finding of imminent danger, the Commission must8upport the inspector' s
determination "unless there is eVidence that he has abused-his discretion or-authority.;' ·Rochester
& Pittsburgh Coal Co., 11 FMSHRC 2159, 2164 (Nov. 1989) (quoting Old Ben C~al Corp. v:
Interior Bd. ofMine Op. App., 523 F.2d 25, 31 (7th Cir. 1975) (emphasis omitted)). The
Commission has held that an "abuse of discretion" is found when "there is no evidence to support
the decision or if the decision is based on an improper understanding of the law." Energy ·west
Mining Co. , 18 FMSHRC .565~ 569 (Apr. 1996) (citations omitted and emphasis-adde<t) .
(affinning the judge's determination that the inspector did not abuse his discretion when he
issued an order extendmg abatement tirite).
Substantial evidence supports·the judge' s determination that MSHA fuspector Ronald
Tolliver exercised appropriate discretion when he issued imminent danger orders on February 4 ·
and 7. 27 FMSHRC 295, 323-27 (Mar. 2005) (AU). The judge found that Tolliver' s actions·
were based on his detection of sudden and significant increases in methane concentrations at·
crosscut 85 and other locations along the tailgate side ofLongwall Panel No. 49 ("LW49' '). This
indicated to the inspector that methane might be moving toward the active lo~gwall face. Id. at
326-27.
My colleagues contend the judge's conclusion is without adequate support. They claim
that when Tolliver issued the imminent danger orders he "lack[ed an] understanding of the
conditions throughout the mine." Slip op. at 13. They fault the inspector for failing to
thoroughly investigate nwnerous conditions at the mine, including the distance to the face from
where the methane was measured along the tailgate. Id. Detecting elevated methane levels is not
sufficient for the majority; they would have the inspector determine the cause clf the elevated

1

I do not concur with footnotes 1 and 5 of Commissioner Young's separate opinion.
28 FMSHRC 571

methane before taking action. My colleagues consider Tolliver's rationale for issuing the
imminent danger orders as little more than "vague concem8 that gob air was coming onto the
face." Id.
However, Tolliver!s actions must be viewed against the backdrop of Cumberland's efforts
to get its ventilation plan approved Cumberland initially planned to ventilate LW 49 with a
bleeder fan system; however the bleeder shaft was not operational when the longwall-was ready
for production. 27 FMSHRC at 297. In order to avoid a shl~tdown Cumberland had to resort to
another method of.ventilation. The operator decided upon a wraparound bleeder system and
submitted a plan to MSHA for approval of that design. Id. In December 2003, MSHA approved·
Cumberland's plan, but limited approval to the first 8,000 feet of mining. Id. at 297-98.
The following month, while conducting a section 103{j) spot in.spection,2 MSHA
determined that Cumberland was not mining in accordance with the approved ventilation plan.
Id. at 299. In certain locations air.flow was in a direction opposite from wha~ had been approved.
Tr. 140-42, 152-54. At the longwall face, theymeasured.air velocity and quantity significantly
less than what had been reported in the books (77,000 cfm vs. 40,000-50,000 cfin). ·Tr. 345: ·
Furthermore, the inspectors encountered ronditions, such as low air flows and hiiher than
expected methane concentrations, that signaled an madequate bleeder system. 27 FMSHRC at
300-01 .
Also during January, MSHA became concerned about insufficient ventilation pressures in
LW49 that would allow gob air (from the worked-on~ area) to ~ove toward the longwall face.
See Tr. 511-12; Gov't Exs. 25 & 26. Sufficient pressure is necessary to move methane located
behind the longwall shields away from the fongwall.face because ~ events, such as a roof fall
behind the shields, can force gob air into the face area, carrying methane with it. Tr. 1249.
MSHA conducted a ventilation survey and confirmed that the bleeder system was fragile
and not effectively ventilating the gob of the Iongwall panel.· 27 FMSHRC at 301-02; Tr. 162-63,
503-05; Gov' t Exs. 25 & 26. Cumberland agreed not to operate the longwall until the ventilation
problems were resolved. 27 FMSHRC at 302.

2

Section 103(i) of the Mine Act applies to certain gassy mines and requires MSHA to
conduct spot inspections every 5 days at irregular intervals. 30 U.S.C. § 813(i).
Approximately seven teams, consisting of three or four p~ple eaeh, participated in tl;le
survey. The teams collected information about the bleeder system by taking altimeter readings to
deiermine the ventilating pressures, anemomet~ readings to determine air.flow vCio.cities,
.
pressure gauge readings to d~termine pressure differentials, smoke tube readings to determine
airflow directions and airflow velocities for specific distances, and methane readings using
handheld detectors and bottle samples. 27 FMSHRC at 301; Jt. Stip. 27; Jt. Ex. 7; Tr. 87-88,
466-67, 471-81, 487.
3

28 FMSHRC 572

Over the next 4 days, MSHA conducted two additional ventilation·surveys, concluding
each time that despite improvements, the system remained fragile and its capacity to dilute
methane was limited. Id. On January 21, Cumberland submitted and MSHA approved a new
ventilation plan, which included certain additional monitoring points that MSHA had required.·
Id. at 302-03; Jt. Exs. 10 & lOA. Although MSHA approved the plan, it remained concerned
about the system's ability to continuously dilute and remove methane ·from the worked-out areas.
27 FMSHRC at 302. Indeed, the agency's concern was such that, when production resumed,
MSHA assigned.its inspectors to the bleeder system 24 hours ·a day, and required them to take
methane measurements at established monitoring points every 2 hours. Id. at 304, 316.
In accordance with this undertaking, Tolliver had been inspecting the bleeder system
everyday from January 31 through February 7. Id. at 304, 326-27; Tr. 829-32, 866, 868.
Tolliver' s methane measurements were steady except for February 4 and 7; when he measured
sudden and significant increases, including near-explosive concentrations (i.e., 4.8% and 5.0%)
along the tailgate side ofLW49, prompting him to issue the imminent danger orders in question.
27 FMSHRC at 304, 323-27; Tr. 846-47, 855, 872-76, 879.
My colleagues have determined that these imminent danger orders cannot be upheld
because Tolliver had been instructed to issue such art order if the methane· level exceeded 4.5% at
certain specified evaluation points. In their view, since Tolliver lacked the discretion not to issue
an imminent danger order when he detected methane levels in excess of that amount, his decision
to issue the orders amounts to an abuse of discretion. Slip op. at 12. My colleagues deem
"unavailing'' the judge's determination that Tolliver's decisions to issue the orders "were
grounded more on his bona-fide concerns for, and evaluation of, the safety of miners, than on a
mechanical application of instructions related by other inspectors." Id. (quoting 27 FMSHRC at
326). Substituting their view of the record for the conclusion drawn by the judge, the majority
concludes that the instructions deprived Tolliver of the ability to make an independent judgement
as to the existence of an imminent danger. Id. at n.14 & 14.
Although my colleagues give lip service to the substantial evidence standard of review of
the judge's finding here, they fail to actually apply it. Under this test, we are not only limited to
considering "such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion," Wellmore Coal Corp. v. FMSHRC, No. 97-1280; 1997 WL 794132 at 3 (4th Cir.
Dec. 30, 1997), but we also may not "substitute a competing view of the facts for the view the ·
[judge] reasonably reached." Donovan ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d 86, 92 ·
(D.C. Cir. 1983); see also Sec'y ofLabor v. Keystone Coal Mining Corp., 151 F.3d 1096, 1104
(D.C. Cir. 1998) (the "sensibly deferential'' substantial evidence standard of review does not allow
the court to reverse reasonable findings and conclusions, even ifit would have weighed the
evidence differently).4

4

My colleagues' reliance on Island Creek Coal Co., 15 FMSHRC 339 (Mar. 1993), slip
op. at 12, is misplaced. The Commission's decision to vacate the imminent ·d anger order in that
case Was based "on the narrow ground that substantial evidence SUpPOrtS the judge's
28 FMSHRC 573

While it is not apparent to this Commissioner that the Mine Act would necessarily
invalidate an imminent danger order that was issued under the factual scenario adopted by my
colleagues, there is no need to reach that question in the matter at hand. As demonstrateq below,
the judge's determination that Tolliver issued the orders based on his own knowledge and safety
concerns is supported by persuasive record evi~ence. 5 For instance, when asked why he issued an
imminent danger order on February 4, Tolliver stated:
For the safety of the miners. I didn't know what was coming
off of the longwall face. I knew something had happened, because I
was getting pretty steady methane readings during that time, and I
didn't know what happened.
At the time, I was afraid that - that the gob air might be
coming on the face air on the longwall.
Tr. 85l
Tolliver issued the order, not because he was robotically following instructions, but
because the methane level indicated to him that the bleeder system w.as not wo~g properly:_.

Q.

. . . What was it that you were concerned could happen?

A.

An explosion.

Q.

An explosion ofthe methane?

A.

Yes.

determination that MSHA failed to meet its burden of proving that it was reasonable for the
inspectors, based on the information available at the time, to conclude that the conditions in the
mine constituted an imminent danger." 15 FMSHR.C at 348. The Commission declined to
')"eweigh the evidence in this case or to enter de novo findings based on an independent
evaluation of the record.'' Id. at 347. Here, in.contrast, the majority adheres to no such
constraints. Morever, in Island Creek the Commission specifically pointed out that its
af:firmance "should not be construed as circumscribing an inspector's authority or indeed his
obligation to issue a section 107(a) order whenever he finds that an imminent danger exists." Id.
at 348 (emphasis added).
5

As a threshold matter, before he issued the orders, Tolliver was well aware that
Cumberland was operating with a very fragile bleeder system. Tr. 860, 868.
28 FMSHR.C 574

The argument that the inspector simply followed instructions and issued the orders solely
on the basis of a single methane measurement was considered and rejected by the judge. 27
FMSHRC at 325-27. ·As he explained:
Clllilberland argues that Tolliver issued the orders and citations
solely because of the readings at the #85 crosscut monitoring point.
While he testified to that effect, Cumberland reads too much into
his responses to specific leading questions on cross-examination.
Tr. 891. I find that the better interpretation of his responses was
that the crosscut #85 readings were the precipitating factors for
issuance of the orders and citations. His testimony, as a whole,
evidences that he was concerned as much about the sudden rise in
methane readings within the system, and the absence of any
immediate explanation for them, as he was about the crosscut #85
readings themselves. He also considered the unfolding events with
an understanding that the bleeder system was fragile. Tr. 868.

. . . Tolliver did not act solely on the basis of a single
excessive methane reading, either on February 4 or 7. He considered
the presence of excessive methane and unexplained sudden rises in
methane in the system as a whole, and reasonably determined that
the conditions he encountered on February 4 and 7 presented
imminent dangers to miners. He did not abuse his discretion in
issuing the orders.
27 FMSHRC at 326-27. In effect, the judge made a credibility determination, which we should
not disturb except in extraordinary circumstances.not found here. Farmer v. Island Creek Coal
Co., 14 FMSHRC 1537, 1540-41 (Sept. 1992) (quoting Hollis v. Consolidation Coal Co., 6
FMSHRC 21, 25 (Jan. 1984), affd mem., 750 F.2d 1093 (D.C. Cir. 1984)).
The testimony ofMSHA's expert John Urosek also supports the judge's determination that
Tolliver did not abuse his discretion in issuing the imminent danger orders. See 27 FMSHRC at
325. Urosek opined that the sudden increases in methane in conjunction with the airflow changes
caused by the adjustment or movement of curtains on the headgate indicated that methane was
"sitting in the internal air flow paths" of the gob, extending "all the way to the longwall face." Id.;
Tr. 1150-52, 1155-56. He explained that the fragile bleeder system "allowed that methane to stay
very close to that longwall face, so changes, inadvertent or on purpose, that occur somewhere in
the system could al~ow that methane to come on the longwall face." Tr. 1248-49. Urosek stressed
the urgent nature of the hazardous conditions, stating that, since the methane accumulations were

28 FMSHRC 576

"already there" when Tolliver detected them, explosions could have occurred before Tolliver "even
got there." Tr. 1161-62.6
Based on my review of the.record, I cannot conclude that there is "no evidence to support
the [inspector's] decision," Energy West, 18 FMSHRC at 569. Consequently, I find·that the judge
correctly concluded that Tolliver' s issuance of the imminent danger withdrawal orders on February
4 and 7 did not amount to an abuse of discretion. Accordingly, I would affirm his determinations.
For the foregoing reasons, I would affirm the judge's decision regarding·the February.4 and
7 citations and orders.

6

Urosek.also testified about James Conrad's discovery of a 5.1 % methane level on
February 14 and explained that if the methane had ignited, an explosion could have propagated
towards the face in milliseconds. Tr. 1161. fu fact, when asked whether there would have been
enough time for Conrad to let the operator know that something was wrong so that it could make
change, Urosek responded succinctly: "Mr. Conrad would not have had time to say, 'Oh, crap.'"
Tr. 1161.
28 FMSHRC 577

Distribution
R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center
401 Liberty Avenue, Suite:1340
Pittsburgh, PA 15222

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22ru1 Floor West
Arlington, VA 22209-2247
Administrative Law Judge Michael Zielinski
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 578

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

August 30, 2006

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) and.
UNITED MINE WORKERS OF
AMERICA

Docket No. SE 2003-160

v.
J1M WALTER RESOURCES, INC.

BEFORE: Duffy,. Chairman; Jordan, Suboleski, and Young, Commissioners

DECISION
BY THE COM:MISSION:
This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2000) ("Mine Act" or "Act''), was brought by the Secretary of
Labor against Jim Walter Resources, Inc. ("JWR."). This proceeding followed an extensive
investigation into two explosions that occurred on September 23, 2001, at JWR's·No. 5 Mine in
Tuscaloosa County, Alabama, resulting in the deaths of 13 miners and injuries to several.others.
The Department of Labor's Mine Safety and Health Administration ("MSHA") issued two
citations and six orders for violations of mandatory safety standards. All of the eight violations
were alleged to be significant and substantial.("$&$"), and seven of the violations were alleged
to be due to JWR's unwarrantable failure to comply with the applicable standard. The Secretary
proposed penalties totaling $435,000.
The case was assigned to Administrative·Law·Judge David Barbour. The United Mine
Workers of America (UMWA), which represents JWR miners, intervened in ~e proceeding..
The parties engaged in extensive pretrial discovery. Prior to trial, JWR filed a motion for
swnmary decision, which was denied. 26 FMSHRC 623 (July 2004) .(AIJ). The judge presided
over a 24-day trial during which 65 witnesses testified, and 396 exhibits were admitted into
evidence. Thereafter, the judge issued a decision, 27 FMSHRC 757 (Nov. 2005) (AIJ), in which
28 FMSHRC 579

he dismissed six of the eight violations and affirmed, but modified, the remaining two orders.
The judge's dismissal and modification of the citations and orders resulted in reduction in the
proposed penalties to $3,000.

a

for

Both the Secretary and JWR filed.petitions
review with the Commission. The
Secretary sought review of: (1) the judge's dismissal of the order alleging a violation of 30
C.F.R. § 75.1101-23(a) for JWR's failure to evacuate miners after the first explosion; (2) the
judge's rejection of the S&S designation of the order charging a violation of section 30 C.F.R.
§ 75.l 101-23(c) for JWR's failure to conduct :fire drills; and (3) the judge's reduction of.penalties
for the two violations that he found. The Secretary did not seek review of the judge's .dismissal
of violations relating to inadequate roof support and inadequate rock dusting, both of which were
alleged to have led directly to the deaths of the 13 miners.
JWR sought review of: (1) the judge's determination that JWR violated the fire driU

requirement in section 75.1101-23(c); (2) the judge's determination that JWR violated section 30
C.F.R. § 75.360(b)(3) by failing to conduct a preshift examination in an area of the mine where
work was scheduled; and (3) the judge's determination that the violation of the preshift
examination requirement was S&S and due to JWR's unwarrantable failure. The Commission :
granted both the Secretary's and JWR's petitions for review.
For the reasons that follow, the judge's decision on the violations and associated special
findings on review is affinned. However, we vacate his decision with regard to the penalties
imposed as a result of the two violations found and remand for further explanation.

L
Factual and Procedural Background
The No. 5 Mine (''the mine''), located ·approximately two miles·north of Brookwood,
Alabama, is one of several underground bituminous coal mines JWR operates in that area. 27
FMSHRC at 758; Gov't Ex. 10 (MSHA Investigation Report) at 2. In 2001, before the
explosions, the mine was producing slightly more than: 500,000 tons of coal·per quarter and
employed 318 contract miners and 70 salaried miners. Id. Miners worked on three shifts: (1)
the 11 :00 p.m. to 7:00 a.m. midnight shift; (2) the 7:00, a.m. to 3:00 p.m. day shift; and (3) the
3:00 p.m. to 11:00 p.m. afternoon or evening shift. 21 ·F MSHRC at 760 n.5; Tr. m 380.

JWR mined the No. 5 Mine using a single longwall for most coal removal. 27 FMSHRC
at 758-59. The longwall began producing coal on the H panel approximately a week before the
accident. Gov't Ex. 10 at 2. To develop longwall panels, JWRused continuous mining
machines, and in September 2001 the development units were the Nos. 4·and 6 Sections. 27
FMSHR.C at 759; ·Gov't Ex. 10 at 2. Coal was mined from the Blue Creek Seam, an extremely
soft seam that tends to liberate high quantities ofmethane. 27 FMSHRC at 7 59. As a result, the
mine is considered to be very gassy. Id.
28 FMSHRC 580

During the day shift on Friday, September 21, water was observed coming from the roof
in the No. 4 Se.ction near Survey Station ("SS") No. 13333, which was located three crosscuts
outby the face. Id. at 760; Gov't Ex. 10 at 4. Supplemental roof support was added there. Id~
On the following shift, power was advanced and the belt was moved up to the secorid crosscut
outby the face. Id. At that time, the scoop battery charging station was moved up to the third
crosscut outby the face, adjacent to the SS 133~3 intersection. Id..
Mining reswned for the next two shifts (September 22 midnight and day), and water was .
again observed dripping at the SS 13333 intersection. Id. Coal was not mined during the ·
following two shifts - the September 22 afternoon maintenance shift and the September 23
midnight shift. 27 FMSHR.C at 760-61; Gov't Ex. 10 at 4. The mine foremen did not detect any
deterioration in roof conditions on those shifts. Id.
·
A.

Se.ptember 23 Midnight and Day Shifts

Albert "Jack" Dye, Jr., was assigned to conduct the preshift examination of the No. 4
Section for the incoming September 23 day shift. Id. at 761. Dye's supervisor that night was
Randy Hagood. Id. at 806. Beca:Use of a fan check, Dye could n~t go underground.during his
shift at first, but he nevertheless begari his preshift examination by 4:00 a.m. Id.; '.fr. ill 447 . .
Dye was to examine, among other areas of the mine, the Nos. 4 and 6 Sections. Tr. ill
382-83. According to Dye, when he asked Hagood whether he should completely examine those
sections, Hagood told him to examine the electrical installations, which ineluded power centers
and scoop chargers. 27 FMSHRC at 806; Tr. ill 383-84. Consequently, Dye's examination
terminated ~ the power center on each section, and he did not examine the face of either section.
27 FMSHR.C at 806; Tr. ill 384-90, 395; Gov' t Ex. 83-C. Dye did not examine further because,
with the power remaining off after the fan check, no work could occur inby the power centers on
the next shift until power was restored. 27 FMSHR.C at 806; Tt. ill 384, 447-49, 486:.ss. when
he went underground, Dye believed that no one would be working on the No. 4 Section during
the shift. 27 FMSHRC at 806. Upon exiting the mine around 6:30 a.m., Dye completed his
written p~hift report, which indicated that no hazards were found in the areas examined, ..
including the power center and scoop battery charger on the No. 4 Section. Id.; Gov't Ex. 36-C.
No production was scheduled for the Nos. 4 and 6 Sections on the oncoming day shift,
but miners were to perfonn general maintenance work there. 27 FMSHRC at 806; Gov't Ex. 10
at 5; Tr. N 127. Upon his arrival at the niine, maintenance foreman John Puckett checked Dye's·
preshift report and learned that Dye had not exanlined beyond the power center on the No. 4
·
Section. 27 FMSHRC at 806 & n.56; Tr. N 126-27, 131-32, 195.
There were eight men working under Puckett during that day shift. Electricians Ray
Milam and Don Coleman .were .to work on the No. 6 Section,
while electricians Jeff Gerald and
.
Ike Smith would work on the No. 4 Section, along with roof bolters David Teey ~d Johnny
Sealy. Tr. ·w 132-33. Also on the crew were scoop operator Larry Jessee and gen~ laborer
28 FMSHRC 581

Q.

. .. So was that the reason that you issued the 107(a)?

A.

Yes.

Tr. 854-55.
Tolliver's rationale for issuing the order on February 7 was similar:

Q.

. .. Why did you issue.the imminent danger order?

A.

. . . I was concerned of the miners on the 49 longwall
section, the safety of the miners.

Q.

Do you know how -many miners were on the longwall?

A. ·

At least seven.

Q.

Now, what was it about this high methane reading and the
face, or in the longwall face, that you were concerned with?

A.

An ignition or explosion due to the concentrations I was
getting from the 85 crosscut.

Q.

. .. (W]hat was. the problem with the methane being where it
was in relation to the people at the fac.e ?

A.

I was afraid the methane was coming off the gob, going to
the active longwall face . . . . [T]here wasn' t enough pressure
on ·the back side.

Tr. 876~78.

28 FMSHRC 575

Joe Phillips. Tr. N 133. While Jessee and Phillips went to retrieve roof bolts they would deliver
to the No. 4 Section, Puckett took the other six
on a man trip lo the No. 4 Section. Tr, N
134-35. Milam and Coleman waited on the bus while Puckett took the other four crew member8
to the power center, Where he had them wait at a nearby dinner hole while he examined the face
area of the No. 4.Section. Tr. Iv 135-36.
·
·

men

Puckett considered the inspection to be both a supplement31 preshift exam1nation fo
Dye's.examination, as well as an onshift ex~tion. 27 FMSHRC at 807 n.57; .Tr. N 162-66,
202-06. When Puckett called to.report the results of his inspection, those results were recorded
only as an onshift.examination. 27 FMSHRC at 807 n.57; Tr. N 231; JWR Ex.. 111.
Because power had not yet returned to the No. 4 Section, Puckett, upon completing his
examination, directed the two electricians to make repairs on ·a continuous miner and told the two
roof bolters to move supplies up from an outby supply hole. Tr. N 206. 1 Puckett thereafter left
the No. 4 Section for the No. 6 Section with the two other electricians, and conducted a similar
examination there. Tr. N 206:-09. The maintenance work on the No. 6 Section occupied Puclcett
until he performed a preshift examination of the No. 6 Seetio~ for the oncoming Shift anci then
returned.to the No. 4 Section to examine it. Tr. N 209-29. Dlliip,g .his examination of the No. 4
Section, Puckett noticed that the roof problem was g~iting worse, so plans were made fo~· greater
roof control measures to be taken on the next shift ·b efore mining resumed. 27 FMSHRC at 76162; Tr. N 227-29; Gov't Ex. 10 at 5:-6.

B.

Se.ptember 23 Afternoon Shift

At the start of the September 23, afternoon shift, around 3 :00 p.m.~ 28 hourly miners and
four SuperViSOI'.S went.underground for a shift devoted to maintenance work. 27 FMSHRC. at·.·
762; Gov't Ex. J 0 at 6. One production forem~ for the shift .was.to supervise work in and
around the longwall, while the other, Tony :key, was responsible for supervising.the Nos. 4 and 6
Sections. 27 FMSHRC at 762; Gov't Ex. 10 at 6. Also underground were.a belt foreman and
outby foreman Dave Blevins. 27 FMSHRC at 762 & n.6; Gov't Ex. 10 at 6. The .
Communications Officer C'CO'') .at the mine, Harry House, superyised the colllDlunjcations room
on the mine's surfaee for the 12-hour period that would begin around 5:00 p.m. Tr. V 337; Gov't
Ex. 10 at 6.
When Key and members of bis crew arrived shortly after 4:00 p.m. at the No. 4 Section, it
was apparent that the roof problems Key had been alerted to earlier by Puckett's preshift exam
were getting even worse. 27 FMSHRC at 762-63; Gov't Ex. 10 at 7. After some preparatory
work, Key and two miners, Gaston "Junior" Adams and Michael Mele, began to build cribs in
the No. 2 entry, starting about 50 feet outby the SS 13333 intersection where the roof was

Electrical power did not return to the section during the shift to allow work to be done
at the face. As a result, the alternative assignments occupied the miners on the No. 4 Section for ·
almost the entire shift. Tr. N 206-07; Gov't Ex. ·10 at 5.
·
I

28 FMSHRC 582.

deteriorating, while another crew member, motorman Jim HSkip" Pal.mer, delivered the supplies
they needed. 27 FMSHRC at 763; Gov't Ex. i 0 at 8.:9. Before that work progressed very far,
however, a large rock fell, and then the entire roof in that intersection collapsed. 27 FMSHR.C at
763; Gov't Ex. 10 at 8. A scoop battery, which was hung from roof bolts and connected to the
battery charger by cables that were not energized, was in the area where the roofcollapsed. 27
FMSHRC at 763; Gov't Ex. 10 at 7-8. ·
.
With Adams and Mele nearby, Key started walking outby the fall. 27 FMSHRC at-763;
Gov't Ex. 10 at 8. He intended to de-energize the section and to telephone a report of the fall to
the communications room so that MSHA could be contacted, when the first explosion occurred
at around 5:20 p.m. Id. This detonation blew Key, Mele, and Palmer, who was at the end ofthe
trac~ further outby, while Adams was pinned under debris. 27 FMSHRC at 763-64; Gov't Ex.
10 at 8-9. Key's back was injured while Mele suffered from burns and back and rib injuries. 27
FMSHRC at 76~; Gov't Ex. 10 at 8. Key, Mele, and Adams were ·s eparated by the explosion,
and had a hard time seeing each other in the dusty atmosphere, especially given that Key and ·
Mele had lost their hard hats and lamps. 27 FMSHRC at 764; Gov' t Ex. 10 at 9. After Mele
took Adams' hat and lamp, Key found Mele. Id. The two concluded that Adams could not be
moved because of his injuries, and they began their journey out of the mine. Id. Many of the ·
other miners underground felt effects from the explosion immediately or soon thereafter. 27
FMSHRC at 764; Gov't Ex. 10 at 9-10.

As a result of ventilation disruptions caused by the first explosion, another, much larger
explosion occurred approxllnately 5? minutes later. 2 7 FMSHRC at 769 & n.14; Gov't Ex. 10 at
16. As set forth in great detail in the judge's decision; the 12 miners who, in addition to Adams,
perished in the second explosion had come from other areas of the mi.D.e and entered or ·
approaehed the No. 4 Section. Most if not all of the 12 miners were responding to assist in
bringing Adams out after learning of his situation from Key and the other injured members of his
crew, or from communications with CO House (after he had spoken with Key). In addition,
some of the miners may have believed that miners other than Adams needed assistance, and
some may have believed there was a fire that needed to be extinguished. See 27 FMSHRC at
764-70; see also Gov't Ex. 10 at 9-17.
C.

Rescue and Recovery Operations and Subsequent fuvestigation

After it was determined that 13 miners were missing, extensive rescue efforts were
undertaken by three mine rescue teams. 27 FMSHRC at 770-71; Gov't Ex. 10 at 17-20. Four
miners were found in the 4 East Section, ·three of whom were dead and a fourth who died the
next day. 27 FMSHRC at 771; Gov't Ex. 10 at 18-19. The rescue team's findings regarding the
damage and conditions in the No. 4 Section led to the conclusion that no other miners could have
survived. 27 FMSHRC at 771; Gov't Ex. 10 at 20. The mine was flooded in order to put out a
fire, and in early November 2001 a team was able to locate and recover the bodies of Adams and
eight other miners near SS 13333. 27 FMSHRC at 771 -72; Gov't Ex. 10 at 20-21.

28 FMSHRC 583

Following its investigation into the explosions at the No. 5 Mine, MSHA issued eight
citations and orders. in this proceeding. As noted, only three of these orders are presently before
the Commission.
Order No. 7328082 charges.JWR with violating section 75J 101-23(a) for failing to
follow, after the first explosion, the evacuation procedures in its ''Fire Fighting and Evacuation
Plan," dated July 15, 1999 (Gov't Ex. 34 at 2-7, hereafter ''FFEP"). The violation was alleged to
be S&S and due to JWR's unwarrantable failure. Gov't Ex. 2.
.
Order No. 7328085 charges JWR with violating section 75.l 101723(c) by failing to
conduct fire drills at 90-day intervals for all miners. The violation was alleged to be s&S and
due to JWR's unwarrantable failure. Gov't Exs. 4, 4A.·
.
Order No. 7328105charges a violation of section 75.360(b)(3) becauseJWRimprope~ly .
limited the September 23 preshift examination of the No..4 Section, prior to the oncoming day ·
shift, to areas from the beginnil).g of the section up to and including the power center, and .
excluded the areas inby the power center, e.g., the working section, where work was sche<Juled.
The yiolation was alleged to be S&S and caused by JWR's un:warrantable failure. · Gov't Ex·. 7 at

1.2

.

D.

Judge's Decision3
.

.

.

With regard to Oi;der No. 7328105, the judge found that JWR had scheduled miners to
perform maintenance work on the No. 4 Section prior to Dye's preshj.ft examination on
September 23. 27 FMSHRC at 808. Based on.that finding, the judge concluded that.Dye.' s
failure to j.nsp.e ct all areas in the No.4 Section, including "workingp~es,'' violataj.sectfon
75.360(b)(3). Id. He further concluded that.the violation was S&S, based in part on finding that
Puckett and his crew had entered an area in the No. 4 Section that had not been inspected. Id. at
809-10. He also concluded that the violation was due to JWR's unwarrantable failure because
Puckett took his crew into an area that had not been examined, indicating a seriQus lack of
reasonable care. Id. at 811.
·
In addressing Order No. 7328082, the judge reviewed his prior decision on JWR's motion
for summary decision (27 FMSHRC at 623-28), and again concluded that JWR could be cited

2

Initially, the order also alleged that during the preshlft examination, Dye Jaiied to
identify that the section of the mine he inspected was inadequately rock dusted. Gov't Ex. 7 at 2.
The judge dismissed that portion of the order, an,d it has.not been appealed.
3

We describe herein only those portions of the judge's decisfon that are before us on
appeal. We do not attempt to summarize the judge's analysis.of his dismissal of the alleged
violations relating to inadequate roof support and rock dusting becaU.Se that analysis has no
bearing on the issues presently before the Com.mission.
28 FMSHRC 584

under section 75.l l01-23(a)because the standard applied to explosion-related emergencies. 27
FMSHRC at 814-15. However, becaiise the standard was not restricted to fires, the judge then
examined the applicable plan to determine whether it implicitly or explicitly included provisions
relating to explosions. Id. at 815. On the record before him, the judge concluded that JWR's
FFEP applied only to "fires" and, therefore, JWR was not in violation for having failed to follow
the evacuation procedure in the FFEP after the first mine explosion. Id. at 815-17.
With regard to Order No 7328085, the judge concluded that the language of the
governing regulation, section 75.1101-23(c), is clear in requiring that all miners must participate
in fire drills at least every 90 days. Id. at 819. The judge held that the-regulation is also clear in
requiring a "simulation" of actions required in an operator's firefighting and evacuation plan.· Id.
The judge further concluded that the record indicated that JWR' violated the standard by failing to
ensure that all miners had participated in simulated fire drills at least every 90 days. Id~ at 82024. The judge detennined that the violation was not S&S because JWR regularly instructed its
miners in firefighting practices and techniques. Id. at 824-25. Finally, the judge rejected the
unwarrantability designation because JWR "honestly believed" that it was in compliance with the
standard based on the Secretary's previous faillire to cite it and its reliance on the Secretary's
Program Policy Manual ("PPM"). Id. at 826.

II.
Disposition .
A.

Section 75.1101-23(a)

Order No. 7328082 chargedJWR with violating section 75.1101-23(a) after the first
explosion by failing to follow the evacuation procedures set forth in the FFEP adopted pursuant
to that standard. Gov't Ex. 2. In ruling upon JWR's pre-trial·motion for summary decision, the
judge held that, as a matter oflaw, an operator could be cited under section 75.1 iOl-23(a) for
failing to comply with its approved fire fighting and evacuation plan in the case of an explosion.
26 FMSHRC at 627-28. In other words, he concluded that the regulation could be interpreted to
authorize MSHA to require that operators' plans address explosion-related emergencies as well
as fire-related emergencies. Id. Howe~er, he further ruled that material facts were in dispute and
that the Secretary had the burden of showing at trial that JWR had actually contravened the
requirements of the FFEP. Id. at 628. He did not decide whether the FFEP actually covered
explosion-related emergencies. The judge subsequently denied JWR's motion for
reconsideration or certification of his ruling to the Commission for interlocutory review. 26
FMSHRC 734 (Aug. 2004) (ALJ). The Commission denied JWR's petition for interlocutory
review. 26 FMSHRC 754 (Sept. 2004).
Following the hearing, the judge again denied JWR's request to reconsider his decision,
reaffirming his earlier ruling. 27 FMSHRC at 814-15. · The judge went on to hold, however, that
according to the FFEP's explicit and implicit terms, the only event that would trigger tlie..

28 FMSHRC 585

evacuation requirements of the plan was a fire that could not "be extinguished or brought under
positive control." Id. at 815-17 (quoting FFEP; sect. V .a.8). Because the FFEP contained no
reference to evacuation in the event of explosion, the judge vacated the order. Id. at 816-1 7, 827.

I.

~ter,pretation of Section 75.1101-23(a)

Before addressing the applicability of the FFEP to evacuations following explosions, we
first decide whether the regulation governing the FFEP in this case, section 75.1101-23(a),
applies to explosion~ and, therefore, whether JWR could be cited under the regulation. Based on
the language of the regulation and the principles governing mine plans, we conclude that section
75.1101-23(a) did provide general authority for MSHA to require that emergency plans cover
explosion-related emergencies. In section A.2, infra, we address the separate question of whether
the FFEP did, in fact, cover explosion-related emergencies.
At the time of the explosions, section 75.l 101-23(a) provided:.
Each operator of an underground coal mine shall adopt a
program for the instruction of all miners in the location and use of
fire fighting equipment, location of escapeways, exits, and routes
of travel to the surface, and proper evacuation procedures to be
followed in the event of an emergency. Such program shall be
submitted for approval to [MSHA].
(1) The approved progr3m of instruction shall include a
specific fire fighting and evacuation plan designed to acquaint
miners on all shifts with procedures for:
(i) Evacuation of all miners nc;>t required for fire fighting
activities;
(ii) Rapid assembly and transportation of necessary men,
fire suppression equipment, and rescue apparatus to the scene of
the fire; and, .
(iii) Operation of the fire suppression equipment available
in the mine.
(2) The approved program of instruction shall be given to
all miners annually, and to newly employed miners within six
months after the date of employment.
30 C.F.R. § 75.1101-23 (2001).4
4

Initially by emergency temporary standard (''ETS") (see 67 Fed. Reg_- 76,658 (Dec. 12,
2002)), and later in a final rule (see 68 Fed Reg. 53,037 (Sept. 9, 2003)), due in part to the-two
explosions in this case (68 Fed. Reg. at 53,038), MSIµ.111oved section 75.11 Ql-23 to the
renamed "Subpart P- Mine EmergenCies." In Subpart P, new 30 C.F.R. § 75.1501 requires
operators to designate, for each shift that miners are underground, a responsible person who will
28 FMSHRC 586

Where the language of a regulatory provision is clear, the terms of that provision must be
enforced as they are written unless the regulator clearly intended the words to have a different
meaning or unless such a meaning would lead to absurd results. See Dyer v. United States, 832 ·
F.2d 1062;1066 (9th Cir.1987) (citirig Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc.,
447 U.S. 102, 108 (1980)); Utah Power & Light Co., ·11FMSHRC1926, 1930 (Oct. 1989). It is
only when the meanipg is ambiguous that deference to the Secretary's interpretation is accorded.
See Udall v. Tallman, 380 U.S. 1, 16-17 ( 1965) (finding that teViewing body must "look to· the
administrative construction of the regulation if the meaning of the words used is in doubt'')
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14 (1945)).
JWR contends that section 75.110J;.23(a) was directed only at fire-related emergencies,
and thus should riot be read to extend to explosiOn-related emergencies; .JWR Resp..Br. at 2..9, · .
Here, the judge read the standard's requirement that an operator's fire fighting .and evacuation
program include instruction in the "proper evacuation-procedures to be followed in th_e event of ·
an emergency" to authorize MSHA to require that the prograiil cover not only fire-related
emergencies, butresponses to other emergency situations as well,:such as explosions. 30·C.F.R. .
§ 75.1101-23(a) (2001) (emphasis added); 26 FMSHRC at 626-28;·27 FMSHRC at 814-15.
The language of section 75.1101.:.23(a) provides MSHA sufficient latitude to require that.
emergency plans approved under that section address explosion-related emergencies. If MSHA
had intended the standard to apply only to fires, MSHA could have·easily used the term "a fire" .
instead of"an emergency." It did not. Given MSHA's use of the broad term "emergency'' in
section 75.1101-23(a), we reject the argument that the order here should have been·vacated on
the ground -that section 75.1101-23(a) could not apply to explosion-related emergencies.5 We, · ·
therefore, conclude that the regulation, by its terms, applies to all types of emergencies, including
those caused by explosions.

take charge during mine emergencies involving a fire or explosion or gas:or-water inundation,
and obligates that person to initiate and conduct an immediate mine evacuation when such
emergencies present an imminent danger to miners. New 30 C.F.R. § 75~1502 amends former
section 75.1101-23 by, among other things, adding a requiremerit that operators adopt and follow
a mine emergency and firefighting program.
5

JWR would also have the Commission read "emergency'' in section 75.l 101-23(a) to
refer to only a fire emergency because the regulation appeared in Subpart L, entitled ''Fire
Protection," whereas MSHA regulations elsewhere addressed emergency situations in general.
JWR Resp. Br. at 3-6. · We do not read Subpart Las narrowly as JWR does and further note that
the emergency-related regulations JWR cites are located throughout-Part 75 and were not
confined to any one subpart. Indeed, the Secretary had previously published a description of the
regulation as being one that required an operator to "adopt -a program for mine evacuation in the
event of an emergency, such as fire or explosion." 60 Fed. Reg. 23,567 (May 8, 1995) (MSHA
Semi-Annual Unified Agenda) (emphasis added).

28 FMSHRC 587

JWR also contends that Order No. 7328082 was invalid because section 75.1101-23(a)
only required that an operator obtain MSHA's approval for a training program covering elements
listed in the regulation, which it had done. JWR R~p. Br. at 12-:-16. According to ~ section
75.l 101-23(a)(2) specifies only when and how often the program of instruction must be given to
miners; nothing more was required of JWR, including that it adhere to the program in
·
emergencies. Id.. at 13, 16. It po4its out that, in contrast, other MSHA regulations imposing a .
plan obligation require operators to follow.the plan. Id. at 17.,.20 (citing 30 C.F.R. §§ 75.370
(ventilation control), 75.220(a)(l) (roof control), and 71.301(c) (respirabie dust control)).

We conclude that JWR's interpretation of section 75.l 101-23(a) would contravene the
clear Congressional intent that plan provisions be.enforced as mandatory standards. 6 JWR' s
suggestion that all the standard required of it in this instance was to adopt a training pl~ and
provide training with respect to emergency responses, with no obligation whatsoever to follow .
the plan during a fire or other .emergency, is an overly literal construction·that is inconsistent with
the regulation's purpose.. Moreover, the absence of explicit language in section 75. i 101-23(~}
requiring an operator to follow the plan's provisions does not excuse an operator's failur~ to do
so. In Ziegler Coal Co. v. Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976),.a decision cited with
approval in the legislative history of the Mine Act, the court held that approved ventilation plans
under the Mine Act's precursor, the Federal Coal Mine Health and Safety Act of 1969, are
enforceable even though its enforcementprovisiol)s were, as ·~ literal matter, triggered only.by
violations of mandatory standards.

In summary, we conclude that section 75.1101-23(a). provided general authority for .
MSHA to require that emergency plans approved under that .regulation contain provisions .

6

The legislative history of the Mine Act states:
[I]n addition to mandatory standards applicable to all operators,
operators are also subject to the requirement set out in the various
mine· by mine compliance plans required by statute or regulation.
The.requirements ofthese plans are enforceable as if they were
mandatory standards. . . . The Committee notes with approval that
individual mine plan adoption and implementation procedures have
been sustained by the federal Court ofAppeals for the .District of
Columbia circuit (Ziegler Coal Company v. [Kleppe}, 536 F.2d .
398 (1976)). Thus, the Committee fully expects the individual
mine plan technique to continue to be·utilized by the Secretary in
appropriate circumstances.

S. Rep. No. 95-181at25 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human,
Res., Legislative History ofthe Federal Mine Safety and.J!.ealth Act of 1977, at 613 (1978)
(''Legis. Hist.") (emphasis added).
28 FMSHRC 588

addressing evacuations in case of explosions. Below we address the issue of whether the FFEP
approved by MSHA did, in fact, impose evacuation procedures in the case of explosions.
2.

Intemretation of the FFEP7

The parties agree that the FFEP does not contain a provision that expressly addresses
JWR's obligation to evacuate the mine in the event of an explosion. According to the Secretary,
she intended.under section 75.l 10l-23(a) that docwnents·such as the FFEP.wotild govern
evacuations not just during fires but during any emergency. S. Br. at 10-11. ·The Secretary·
argues that JWR, having drafted the plan's provisions and having obtained MSHA's approval
pursuant to the terms of the standard, cannot claim that the evacuation provisions do not apply to
emergency situations other than fires. Id. at 11-12. In essence, the Secretary is requesting the
Commission to supply a provision that could have been included in the FFEP but was not.
Commission precedent does not support the Secretary's approach. In Jim Walter
Resources, Inc., 9 FMSHRC 903 (May 1987), the Commission addressed the process by which
mine plans are adopted by operators and their provisions e.tiforced by the Secretary, including
cases in which the plan is ambiguous on an issue. The Commission held that "[i]n an
enforcement action before the Commission;· the Secretary bears·the burden ofproving any alleged
violation. Jn plan violation cases ihe Secretary must establish 'that the provision allegedly
violated is part ofthe approved and adopted plan and that the cited condition or praetice violates
·
the provision." Id. at 907 (emphasis added). The Commi8sion further held that, while "'it·
should not be preswned lightly that terms [in an approved] plan do not have an agreed·\Jpon ·
meaning,"' in the event a plan provision is found to be ambiguou5, the Secretary must "di8pel the
ambiguity'' by establishing the intent of the parties on the·issue through credible evidence as·to
the history and purpose of the provision and evidence of consistent enforcement Id. (quoting
Penn Allegh Coal Co., 3 FMSHRC 2767,-2770(Dec~· 1981)). 8
The Secretary made no attempt beiow to meet her burden under JWR by establishing,
through testimony of those involved in drafting and approving the FFEP, the intent of the
7

Commissioner Jordan dissents from her colleagues' decision in this part (Sec.11.A.2).
See slip op. at 32-37.
8

As an alternative to applying the JWR standard ofreview to the FFEP, the Secretary
urges the Commission to defer to any reasonable interpretation she offers of an ambiguous plan
or provision of a plan, citing as authority the Commission's decision in Energy West Mining Co.,
17 FMSHRC 1313, 1317 (Aug. 1995). S. Br.' 14-15. Subsequent cas'e law demonstrates that
Energy West did not alter the JWR standard of review with respect to ambiguous plan provisions.
See Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1280 (Dec. 1998) ("[w]hen. a·plan
provision is ambiguous, the Secretary may establish the meaning intended by the parties by ·
presenting credible evidence as to the history and purpose of the provision, or evidence of
consistent enforcement.").

28 FMSHRC 589

Secretary or JWR with respect to JWR's evacuation obligations und,er the plan after an
explosion. Neither did the Secretary rely upon the manner in which the plan was implemented or
enforced as a mandatory standard.
We agree with the judge that neither JWR nor the Secretary appeared to have considered
how the FFEP applied in the event of an explosion. See 27 FMSHRC at 816 n.63. Moreover, as
the judge discussed, ·the scant enforcement history on the .issue .tends.to contradict the Secretary's
position. . See id. (citing 1993 explosion resulting in injuries and damaged ventilation controls in
which actions similar to those taken by miners in this case were not cited despite a plan sinlilar to
the FFEP being in effect). Finally, we agree with JWR that the broadenin~ of ~e successor plan
to the FFEP so that explosions would be covered by evacuation orders indicates tha~ the
Secretary, as well as JWR, recognized, that the FFEP simpJy did not apply to the situation that
followed the first explosion. JWR Resp. Br. at 30; JWR Ex. 266 (successor plan to.FFEP
adopted before promulgation of ETS, discussed supra n.4).
Instead of presenting evidence.ofMSHA's and _J WR'sunderstandingofJWR's
obligations to evacuate under the FFEP in the case of an explosion, the Secretary relies -u.pon . .
other provisions in the FFEP to establish that the plan was violated. In.particµlar, the·Secretary
contends that the judge. erred by failing to consider the F:FEP provisiQn that stated that "[a]
supervisor or designated person will assemble all men promptly and lead the way during th,e ·.
evacuation" (hereinafter referred to as the "assemble and lead" provision). S. Br. at 13-2i (citing
FFEP at 3).9 .According to the Secretary, that provision applied genera}lyto any.evacuation.the .
operator undertook, not just to evacuations in response to a fire. Id. at 14-.15, 17-18.. The .. ·
Secretary argues that the ."assemble and lead" prqvision is written witho~t "limitillg language;'
and therefore cannot be limited to evacuations undertaken in response to a fire. Id. at·l8. · · ..
We do not agree with the Secretary that the "assemble and lead?' provision establishes the
parties' intent with respect to post-explosion evacuations. The language of the provision does
not address what events trigger its operation. FFEP at 3. The jud,ge properly ruled that the first
question that must be answered is whether the FFEP required an evacuation in the event of an
explosion. 27 FMSHRC at 816-17. The only triggering events for an evacuation that were
directly addressed in the document are carbon monoxide monitor alarms and fires which cannot
be brought under control. FFEP at 2, 5. In short, the ..assemble and lead" provision established
how evacuations were to be carried out in the event of an emergency, but other provisions of the
FFEP must be read to detemrine when an evacuation was required.

We agree with the judge that the FFEP was. poorly drafted and is confusing..·See i1
FMSHRC at 821 & n.70. For.example, it was divided into five sections, .but some of the section
numbers were repeated, and the titles given to the sections do not necessaijly acc~tely describe
their substance. The "assemble and lead" provision is contained in the second
.Section Il in'.the
.
document (FFEP at 2-3), and inexplicably u~es the term ''the evacuation" despite there being no:
previous reference to the need to evacuate.
9

28 FMSHRC 590

In United Mine Workers ofAmerica v. Dole, 870 F.2d 662 (D.C. Cir. 1989), the court
held that MSHA always retains final responsibility for deciding what must be included in a plan
and quoted from legislative history indicating that final mine plans result from the Secretary's
"exercise [of] judgment with respect to the content of such plans." Id. af 669 n.10 (quoting S.
Rep. No. 95-191at25, Legis. His. at 613). It follows that the Secretary ultimately bears
responsibility for a mine plan's silence on a subject. We thus do not agree with the Secretary
that, because under section 75.1101-23(a) she could have withheld approval of the FFEP for its
failure to set forth evacuation procedures to be followed in all emergencies, the evacuation
provisions that were included in the approved FFEP must be interpreted to include all
emergencies.
We conclude that, except for carbon monoxide alarms or fires that could not be
controlled, the FFEP was silent with respect to the circumstances that would trigger the
evacuation of the mine. Consequently, absent evidence establishing the intent of JWR and the
Secretary that the FFEP would apply to explosion-related evacuations, we cannot conclude that
the FFEP was violated in this instance by JWR. 10 The judge correctly concluded that, while "a
provision requiring miners to evacuate in the event of an explosion ... may have been highly
desirable ... [and] necessary to fully effectuate miner safety[,] . . . the Secretary cannot at this
late date supply through an administrative law judge's decision something she wishes she had
insisted on more than 6 years ago." 27 FMSHRC at 817.
.Accordingly, we affirm the judge's dismissal of Order No. 7328082.

10

The Secretary attempts to raise one final argument, contending that·an evacuation was,
in fact, occurring after the first explosion, but that JWR failed to adhere to the assemble and lead
provision in carrying out the evacuation, and·thus violated the·FFEP. S. Br. at 21-33. The claim
that an evacuation was occurring, which is based solely on the testimony of two JWR employees
regarding what they believed occurred underground (S. Br. at 21-22 (citing Tr. V 382-83, XII
223-24, 265)), contradicts the underlying order and is inconsistent with the Secretary's theory of
the case below. See, e.g., Order No. 7328082 (alleging violation when "[m]iners were not
evacuated from the mine after an explosion damaged critical ventilation controls.,') Gov,t Ex. 2
(emphasis added). To the extent the Secretary's argument could be viewed as an alternative
theory of the violation, it is one that the judge never had an opportunity to address. The issue has
therefore not been adequately preserved for review under the Mine Act, and we decline to
consider it. See 30 U.S.C. §113(d)(2)(A)(iii) (..[e]xcept for good cause shown, no assignment of·
error by any party shall rely on any question of fact or law upon which the administrative law
judge had not been afforded an opportunity to pass); see also Commission Procedural Rule 70(d)~
29 C.F.R. § 2700.70(d).
·
.
28 FMSHRC 591

B.

Section)5.1101-23(c)

Order.No. 7328085 charges JWR with violating section 75.1 101-23(c) by failing to
conduct fire drills at 90-day interVals before the events of September 23, 2001. Gov't Exs. _4 , 4A.
At the time of the explosions, section 75.1101-23(c) required in pertinent part:
Each operator of an underground coal mine shall require all
.miners to participate in fire drills, which shall be held at periods of
time so as to ensure that all
participate in such a drill .. . at
intervals of not more than 90 days . .. .
(1) The operator shall certify by signature and date that the
fire drills were held in accordance with the requirements of ~s
section. Certifications shall be kept at the mine and made availabl~
on request to an authorized representative ofthe Secretary.
(2) For purposes of this paragraph (c), a fire drill shall
consist of a sunulation of the action~ requ4-ed by the approved fire
fighting and evacuation plan described in paragraph
(a)(l)..of this
.
section.

miners

30 C.F.R . § 75. l 101-23(c) (2001).
The judge held that the training conducted by JWR did not $atisfy its obligation under
section 75.l 101-23(c) to conduct for "all" miners "a simulation of the actions required by the"
FFEP. 27 FMSHRC at 819-24. The judge concluded that a violation was established by the
testimony of eight JWR miners that they had not participated in an on-site simulation of the
actions required in the FFEP, and that the records that JWR had provided MSHA to meet the
certification requirements of the standard were insufficient to demonstrate otherwise. Id. at 82224.11 Citing Bluestone Coal Corp., 19 FMSHRC 1025, 1029 (June 1997), the j udge :further
found that the plain meaning of section 75.1101-23(c) provided JWR with adequate notice ofthe
standard' s requirements in this .instance. Id. at 819 n.68.
The judge affirmed the order but not the allegations that the violation was S&S and
attributable to JWR's unwarrantable failme, and reduced the Secretary's proposed penalty from
$55,000 to $500. Id. at 819-26. We address below whether a violation was established, whether

11

At trial, copies of fire and emergency response training records for many JWR miners
were submitted, ,and miners and JWR officials testified that such training included periodic
escapeway walks, .hands-on training and demonstration of fire fighting equipment, ~ety
meetings, group discussions, rol~ playing and putting out mock fires, using a self-containe4 ~lf
rescuer (" SCSR''), ii:istruction on the danger of methane, and fust aid training. Se,e 27 FMSHRC
at 823, 825 & n.73. The Secretary, however, noted an absence of documentation establishing
·
participation by many miners~ Gov't ·Ex. 4, 4A.
28 FMSHRC 592

rWR had adequate notice of what was required by the standard, and whether the judge properly
detennined that the violation was not S&S and was of moderate gravity. 12
1.

Violation

JWR argues that the judge erred in interpreting section 75.l 101-23(c) to require that
operators must certify that simulations were conducted for "all" miners. JWR Br. at 20, 26-30. ·
JWR also contends that such an interpretation is contrary to the Commission's·decision in
Southwestern lllinois Coal Corp., 5 FMSHRC 1672 (Oct. 1983). Id. at 27-28. The Secretary
maintains that the judge correctly interpreted the standard according to its plain meaning to
require that all miners participate in fire drills. S. Resp. Br. at 35-39.
Below, the judge held that "'all miners' means exactlywhatit says" in section 75.110123(c) and that the standard was not satisfied when only some miners participated in the required
fire drills. 27 FMSHRC at 820-21. We agree with that plain meaning interpretation ofthe
regulation. 13

JWR does not dispute the evidentiary basis for the judge's finding ''that"there was a
general lack of on-site simulations at the mine," and his finding is supported by substantial
evidence. 14 See 21 FMSHRC at 822-23. ·The judge carefully read the FFEP to'find the specific

12

The Secretary did not appeal the judge's unwarrantable failure de~ermination.

13

Contrary to JWR' s position, the Commission's decision in Southwestern does not ·
foreclose interpretirig section 75.1101-23(c) to find that JWR violated the standard here becaµse_
not "all" miners were found to have participated in the required fire drills. In Southwestern, the
Commission held that the requirement ~f 30 C.F.R. § 77 .171 O(g) that each miner wear a safety
belt and line did not make an operator a guarantor that miners would do ·so, but instead only
obliged operators to require miners to wear such equipment. 5 FMSHR.C at 1675. However, the
Commission pointedly stated that its holding was limited to the language of section 77.171 O(g).
Id. The obligation imposed upon JWR to require that "all" miners participate in file drills is
distinguishable from the operator's obligation at issue in Southwestern because, among other
things, JwR was in complete control of the scheduling and documentation of those exercises.
14

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the tenns 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., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)). Under the substantial evidence test, in reviewing the whole record, an
appellate tribunal must consider anything in the ~ecord that "fairly detracts" from the weight of
the evidence that supports a challenged finding. Midwest Material Co., 19 FMSHRC 30, 34 n.5
(Jan. 1997) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).
28 FMSHRC 593

duties that miners and supervisors were required to perform under that plan and thus needed to be
simulated during the fire drills required by section 75.l 101-23(c).. See 27 FMSHRC at 821-22.
The judge then credited the testimony of eight miners, none of whom could recall having
participated in a ''hands on" fire drill or fire .fighting simulation in the months, or even, in the
case of some of the miners, years preceding the explosions. Id. at 822. A judge's credibility
determinations are entitled to great weight and may not be ov:ertumed lightly. Farmer v. Island
Creek Coal Co., 14 FMSHRC 1537, 1541 (Sq>t.1992); Penn Allegh Coal Co., 3 FMSHRC
2767, 2770 (Dec. 1981). We see no basis to overturn the judge's credibility findings in this
instance.
Moreover, based on those miners' similar accounts, the judge inferred that there had been
a general lack of on-site simulations at the mine. 27 FMSHRC at 823. "[T]he substantial
evidence standard may be met by reasonable inferences drawn from indirect evidence." MidContinent Res., Inc., 6 FMSHRC 1132, 11~8 (May 1984). Inferences drawn.by the judge are
''permissible provided they are inherently r~nable and there is a logical and rational
connection between the evidentiary facts and the ultimate fact inferred." Id. Based on the
foregoing evidence, the judge reasonably inferred that JWR generally failed to conduct the
required simulations. Consequently, we conclude that substantial evidence supports the judge's
determination that not all miners had participated in the simulated actions required by section
75.1101 -23(c). Thus, a violation of that standard was established.
2.

Notice

Where the imposition of a civil penalty is at issue, considerations of due process prevent
the adoption of an agency's interpretation "from validating the application of a regulation that
fails to give fair warning of the conduct it prohibits or requires." Gates & Fox Co. v." ·o sHRC,
790 F.2d 154, 156 (D.C. Cir. 1986) (citations omitted). An agency's interpretation·maybe· ·
permissible but nevertheless may fail to provide the notice reqUired to support imposition of a
civil penalty. See General Electric Co. v. EPA, 53 F.3d 1324, 1328-34 (D.C. Cir. 1995); Phelps
Dodge Corp. v. FMSHRC, 681F.2d1189, 1193 (9th Cir. 1982).
JWR contends that it lacked fair notice here beeause the series of exercises in which it
required its miners to participate under the FFEP were, in effect, approved in MSHA's Program
Policy Manual (''PPM") in effect at the time, is and through the agency's enforcement policy, as
sufficient to satisfy the quarterly drill requirement of section 75.1101-23(c). Accordingly, JWR
argues that the judge erred when he concluded that JWR could be penalized for failing to
recognize that only simulations satisfied.the standard. JWR Br. at 22-25, 31-35.

As the judge found and we agree, section 75.1101-23(c) clearly required operators to
conduct quarterly µre drills in which "all" miners are to participate. In a4ditio~ by its plain

ts JWR Ex. 146 (excerpt ofV MSHA, U.S. Dep't of Labor, Program Policy Manual,

Part 75, at 105-06 (1994)).

.
28 FMSHRC 594

terms the regulation stated that such fire drills were to be simulations of the actions required by
the applicable fire fighting and evacuation plan, which here was the FFEP. 30 C.F.R.
§ 75.1101-23(c)(2) (2001). "The Commission has held that, where 'the meaning of a standard is
clear based on its plain language, it follows that the standard provided the operator with adequate
notice of its requirements."' Nolichuckey Sand Co~ , 22 FMSHRC 1057, 1061(Sept.2000)
(quoting LaFarge Constr. Materials, 20.FMSHRC 1140, 1144 (Oct. 1998)). .
Moreover, the PPM is consistent with section 75.1101:.23(c). Although't he PPM states
that ''various types of training will constitute a fire drill," that language applied only to those
drills conduc~d pursuartt to the fire fighting and response program of instruction ilnder section
75.l 101-23(a), which applied to training of new miners and annually training of experienced
miners. The PPM lang1iage was not directed arthe requirement of subsection (c) that a fire drill
be'conducted quarterly, an additional requirement of that subsection. The only language ofthe
PPM that was directed at subsection (c) does not establish that MSHA considered JWR's
piecemeal method of fire response instruction to constitute a fire drill under section 7_5.110123(c).16 We therefore affirm the judge's determinations that JWR violated section 75.l 101-23(c)
and had adequate notic.e of its requirements.
·
3.

S&S and Gravity of the Violation

In deeiding whether the violation of section 75.1101-23(c) was S&S; the judge noted the
record evidence showing JWR' s No. 5 mine to be one of the gassiest in the COWltry and one .
which had experienced occasional fires. 27 FMSHRC at 824. The judge concluded, however,
that because JWR regularly instructed its. miners in fire fighting practices and techniques, it was
not reasonably likely that.the failure to conduct fire drills that-met the requirements of section
75.l 101-23(c) wouldresult in an injury. Id. at 825. Accordingly, he found that the violation was
not S&S. Id. The judge further held that, while none of the fatalities in this case was due to
JWR's failure to comply with former section 75.1101-23(c), it is conceivable that the failure to
conduct on-site, hands-on fire drills for all miners could have serious eonsequences in the event
of a fire. Id. Therefore, he found that the violation of the standard was moderately serious for
·
penalty assessment pwposes. Id.
The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S:C. § 814(d),
and refers to more serious violations. A violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood that the hazard contributed to-will
result in an injury or illness of a reasonably serious nature. See Cement Div., Nat'/ Gjpsum Co.,
3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the
Commission further explained:

16

Significantly, the title for this part of the PPM was limited to include only "75.110123(a) and (b)." The title thus generally indicates that the guidance to be provided by'the PPM
was restricted to those first two subsections of section 75.1101-23, and was not directed at the
third and final subsection, ( which JWR is alleged to have violated here.
·

c),

28 FMSHRC 595

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
~datozy safety standard; (2) a discrete safety hazard - that is, a
measure of danger to safety- contributed to by the violation; (3) a
rea8onable likelihood that the hazard contnl>uted to will result in
an injury; and (4) a reasonable likelihood that the injwy in question
will be of a reasonably serious nature.

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir.
1995);Austin Power, Inc. v. Secretary ofLabor, 861F.2d99, 103 (5th Cir. 1988) (approving
Mathies criteria). An evaluation of the reasonable likelihood of injury should be made assuming
continued normal mining operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug.
1985).
The Secretary asserts that the judge erred in his deteimination that the third Mathies
element was not established because he did not consider the testimony of MSHA official
Kenneth Murray regarding the critical importance of on-site simulations. $. Br. at 40, 43 (Citing
Tr. IX 81-82). 17 We do not agree.
The judge's decision reflects that he fully considered the importance of JWR miners
being trained in v~ous fire response measures. At the outset of bis·S&S analysis, the judge
recognized that
·
[i]f JWR had failed to train its miners to fight a fire, the likelihood
of the miners exhibiting ineptitude in fire supp~ssion techniques
when confronted with a fire, the .likelihood of their confusion in
how to respond to a fire, and even the likelihood of panic in the
event of a fire would b.e increased.
27 FMSHRC at 824-25. Consequently, the judge concluded that, although JWR did not provide
all miners on-site simulated fire drills, JWR regularly instructed its miners in firefighting
practices and techniques. Id. at 825 & n.73. Moreover, the judge credited the testimony of six of
the supervisors who signed JWR's fire drill records stating that the drills the company considered
compliant with section 75.l 101-23(c) were conducted each quarter. Id. Jn light of the foregoing,
the judge concluded that it was not reasonably likely that the lack of training specified in the

17

The Secretary does not explain why, if compliance with section 75.l 101-23(c) were so
critically importaiit, MSHA;s inspectors previously failed to check JWR's records to ensure
simulations were conducted quarterly for all miners. JWR Ex. 203 at 59.
28 FMSHRC 596

standard would result in an injury and therefore the violation was not S&S 18 Substantial
evidence supports the judge.
We also find unavailing the Secretary's argument that JWR's failure to conduct
simulations resulted in its miners not understanding the limitation of an SCSR. S. Br. at 40-41,
43-44. In particular, the Secretary contenciS· that if two of the deeeased miners, Wendell Johnson
and Joseph Sorah, had participated in simulations, they would have been more likely to follow
the lead of miner Robert Tarvin, and thus would not have volunteered in response to supervisor
Blevins' request for three men who did not mind using an SCSR to accompany him into the No.
4 Section. Id. According to the Secretary; Johnson and Sorah would have recognized, as Tarvin
did, that an SCSR is not designed to contain enough ~xygen for the task at hand. . Id. This
account of events does not demonstrate that the judge's S&S detennination should be overturned.
There is no evidence that Tarvin knew the limitations of an SCSR better than Johnson or Sorah
(or Blevins for that matter), or that the two miners were unaware of the limitations of ~e SCSR.
Nor has it been shown that these limitations would have been taught as part of a hands-on
fire.fighting simulation, given that SCSR training was separately being given to its miners by
JWR.
.
Accordingly, we conclude that the judge's determination that the violation of section
75.l 101-23(c) was not S&S and associated finding of moderate gravity are supported by
substantial evidence and affirm both.
·
C.

Section 75.360(b)(3)

Order No. 7328105 charges a violation of section 75.360(b)(3) and alleges that, during
the September 23 day shift, miners were scheduled to work at a location within the No. 4 Section
that was admittedly not included in the examination conducted prior to the shift. Gov't Ex. 7 at
1.19 The pre-shift examination standard provides in pertinent part:
(a)(l) ... a certified person designated by the operator must
make a preshift.examination within 3 hours preceding the

18

Citing the decision in Buck Creek, 52 F.3d at 133, the Secretary argues that it was
improper for the judge to consider in his S&S analysis that miners h~ received firefighting
training under other standards. See S. Br. at 42. However, nothing in the court's decision
precludes the judge from considering that JWR miners had much of the same training that they
would have received if JWR had conducted quarterly fire drills. See Buck Creek, 52 F .3d at 136
(fact that operator had in place firefighting measures required by MSHA regulation simply
indicates ''the significant dangers associated with coal mine fires'').
·
·
19

Initially the order also alleged that during the pre-shift examination Albert Dye failed
to identify that the section was inadequately rock dusted. The judge dismissed that portion of the
order, and the Secretary did not appeal that ruling.
28 FMSHRC 597

beginning of any.8-hour interval during which any person is
scheduled to work or travel Un.derground. No person other th3J1
certified examiners may enter or remain in any underground area
unless a preshift eJ;amination has been completed for the
established 8-hour interval. The operator must establish 8-hour
intervals of time subject to the required preshift examinations.

*

*

*

*

(b) The person conducting the preshift examination shall

· examine for.hazardous conditions, test for.methane and oxygen
deficiency, and determine if the air is moving in its ·proper
4irection at the following locations:

•

*

*

*

(3) Working sections and areas where mechanized mining
equipment is being installed or removed, ifanyone is scheduled to
.w ork on. the section or in the ar~a during_ the oncoming shift. The

scope of the.exammation sha1l. include the working piaces,
approaches to worked-out areas and ventilation controls on these
sections and in these areas, and the examination shall include tests
of the roof, face and n"b conditions on these sections and in these
areas.
30 C.F.R. § 75.360(~)(1) & (b)(3) (2001) (emph~s added).

The Commission has recognized that the preshift examination requirements are "of
fundamental importance in assuring a safe working environment underground." Buck Creek
Coal Co., 17 FMSHRC 8, 15 (Jan. 1995);.see also 61 Fed. Reg. 9764, 9790 (Mar. 11, 1996)
(''The preshift examination is a critically ipiportant and :fundamental safety practice in the
industry. It is a primary means of detenllining the effectiveness of the mine's ventilation system
and of detecting developing hazards, such as methane accumulations, water accumulations, and
bad roof.").
. 1.

Violation

The judge found that, because maintenance foreman John Puckett's crew was
"scheduled" to work on the No. 4 Section since the previous Thursrui.y, Dye, the pre-.shift
examiner, should have conducted a.preshif;t examination.on the entire No. 4 Section. 27·
FMSHRC at 808. The judge concluded that Dye's failure to do so constitUted a violation of
section 75.360(b)(3).. Id.

28 FMSHRC 598

JWR contends that there is not substantial evidence to support either the judge's finding

that work had been scheduled on the No. 4 Section since the previous Thursday or that the
location of the work for Puckett's crew had been assigned. JWR Br. at 8-1 O; JWR Reply Br. at
2-5. JWR further submits that the schedule for maintenance and roof bolting on the No. 4
Section was not operative when Dye conducted his preshift examination. JWR Br. at 10-11.
Section 75.360(b)(3) states that the preshift examination is to include ''working sections,"
which are defined as "[a]ll areas of the·coal mine from the loading point of the section to and
including the working faces." 30 C.F.R. § 75.2. ·Puckett's crew included roofbolters Terry and
Sealy, and Puckett testified that 1'teir original assignment ''was to bolt the faces up," as the faces·
had been "left unbolte<I°until the weekend." Tr. IV 132-34. Puckett further explained that two
other miners on his crew, scoop operator Jessee and laborer Phillips, would have serviced the
faces once the faces had been bolted. Tr. IV 133-35. "in short, there is substantial record
evidence that prior to the power outage, maintenance work was scheduled inby ·the power center
for the No. 4 Sec~on, including the face, and thus within the working section;20
JWR does not dispute this evidence, but argues that the continuing power outage caused
the work schedule for the mine, foduding·the No. 4 Section, to change. JWR Br. at 11. JWR

of

thus defends the.incompleteness Dye's preshift examination on the narrow ground that; duriilg
that 3-hour window Dye had.to conduct his exalnination, Dye belieyed that no work at the face
on the.No. 4 Section would take place dUrlng the day shift becaU.se of the-power outage.
However, the o~y sµpport for JWR's position is Dye's.hearsay.testimony that Hagood told him
not io do a full preshift and Dye's "understandin~'-that he was told this because no one on the··
incoming shift was going to be "up there." Tr. III 382-84, 390-95, 447-49.21 This testimony is.
insufficient to establish that miners were not scheduled to work on the No. 4 Section during the
shift.
Moreover, as JWR recognizes fu·its brief, by the time the day shift began, Puckett learned·
that his crew would be assigned to bolt the unbolted faees. JWR Br. at 8. Puckett testified that
he had miners Jessee and Phillips deliver roofbolts to Section 4. Tr. IV 134. The evidence
further shows that miners were scheduled to work on the No. 4 Section,.that JWR planned to
resume roof bolting at the face once the power returned during the day shift, and that it took a
number of steps in advance to be able to immediately do so. Puckett testified that power could
return at anytime during the shift and that it was his "hope that power would be restored fairly
early in the shift." Tr. IV 199, 152-53. The record also indicates that, at the outset of the shift,
Puckett took part of his crew into Section 4 as far as Dye had preshifted, up to the power center,
We thus need not address whether the judge was corr~t in concluding that the work
had been scheduled as early as the previous Thursday.
20

21

Puckett also testified that when a preshift examiner did not know where miners would
be assigned to work, the examiner would frequently limit the preshift to ''the power center areas,
any place that power is going to be restored." 27 FMSHRC at 807 (quoting Tr. IV 131 ).
28 FMSHRC 599

and he then proceeded alone inby to complete the examination started by Dye, including at the
face. 27 FMSHRC at 807; Tr. N 199-206.
Given the wejght of the evidence, we cannot agree that evidence shows that JWR
changed the existing work schedule, including the expectation that work would occur at the face
sometime during the shift.22 Thus, we find that substantial evidence supports the judge's finding
of a violation.
We reject JWR's argument that Puckett's examination of the area inby the power center
qualified as a supplemental preshift examination made under section 75.36l(a).23 JWR Br. at 8,
11-12. Supplemental examinations are limited to those circumstances iii which miners already
underground are dispatched during the shift to an idle or abandoned area of the mine, which had
not been subject to preshift examination because no miners were originally scheduled to work
there. The violation of secti~n 75.360(b)(3) occurred when Dye failed to conduct a complete
presbift examination of a seetion where work was scheduled prior to miners entering the mine on
the oncoming shift. Puckett could not undo the violation once the shift had begun.
The 1992 preamble ~o section 75.361 stated, that "MSHA anticipates that und~r this rule,
supplemental examinations will :he conducted during workllig shifts just before persons are sent .
to perform .u nscheduled tasks in remote. areas that have not been preshifted.'' 57 Fed. Reg. .·
20,868, 20,895 (May 15, 1992) (emphasis added).. Because the record here shows that work was
scheduled inby the power center in the No: 4 Section wh~ Dye perform~ his preshift
examination, section 75.361 is inapplicable. Accord Buck Creek, 17 FMSHRC at 1.2 (emphasis

22

JWR faults the Secretary for not calling Hagood to testify. JWR Reply Br. at 3-4.
However, because all of the other evidence tends to show work was "scheduled" in the working
section of the No. 4 Section, it was incumbent upon JWR to better explain, through.H~ood,
why, at the time Dye conducted the incomplete preshift, Hagood believed such.work would not
take place during the oncoming shift. The record establishes that the Secretary met her.bmden of
proof with respect to the scheduling issue, and JWR failed to.present .sufficient evidence
rebutting.the Secretary's case.
23

Section 75.361(a) states that:
(a) Except for certified persons conducting examinations
required by this subpart, within 3 hours before anyone enters an
area in which a preshift examination has not been made for that
shift, a certified person shall examine the .a rea for hazardous
conditions, determirie whether the air is traveling in its proper
direction and at its normal volume, and test for methane and
oxygen deficiency.

30 C.F.R. § 75.361(a) (emphasis added).
28 FMSHRC 600

added) (section 75.361 only provides "for a supplemental examination of idle and abandoned
areas whenever miners who are underground are dispatched to an a.tea of the mine that was not
required to be examined as part of the preshift examination.").24 Thus, we affimi the judge's
finding that JWR violated section 75.360(b)(3).
2.

S&S and Gravity of the Violation25

The judge found the violation of section 75.360(b)(3) to be S&S. He based·this
determination on his findings that: (1) had normal mining operations continued, power would
have been restored and.miners woll.J.d have been sent foiward to the face to roof bolt or to other
areas of the section to perform maintenance work; and (2) miners already had advanced well into
the section before the Puckett examination began. 27 FMSHRC at so9..:10. Talcing into account
the gassy nature of the mine, the presence of electric and diesel power equipment, and the fact
that JWR was working to restore power, the judge determined that the hazard was re~nably
likely to result in an injury-causing event, and that the type of injuries suffered would be
reasonably serious if not fatal. Id. at 810. The judge also concluded that the same evidence
established that the level·of gravity of the violation would be serious for purposes of assessing a ·
penalty. Id. at 810-11.

JWR contends that the judge erred in basing his S&S determination on the assumption
that normal mining operations would have resumed without a complete preshift examination, and
that he miSWlderstood exactly where on the No. 4 Section Puckett's crew traveled and waited .
while Puckett completed his examination.. JWR Br. at 15-20. The Secretary points to evidence
regarding the nature ofthemine'and .the violation that she believes supports the conclusion that
the violation was S&S. S..Resp. Br. at 27'-31.· The Secretary also requests that the Commission
use the opportunity this case presents to adopt a presumption that a violation of the preshift
examination standard is S&S and to shift the burden of production to operators on the issue in
such cases. Id. at 25-27.
We find that substantial evidence supports the judge's determination that JWR's violation
of the preshift standard was S&S.26 In so domg, we once again apply the Mathies test, slip op. at

Contrary to JWR' s assertio~ (rWR Reply Br. at 7-8), our holding in Buck Creek has
not been voided by the subsequent amendment to certain subsections of section 7 5 .360(b}, as
only sections 75.360(b)(l) and 75.360(b)(10), and not section 75.360(b)(3), were amended. 61
Fed.Reg. at9793,9796.
24

25

Commissioner Suboleski dissents from his colleagues' decision in this part. See slip
op. at 38-45.
26

In general, we agree with JWR that the judge misunderstood exactly where ori the No.
4 Section the four members of Puckett's crew traveled to and waited during Puckett's
examination of the area inby the power center. While the judge was correct in describing the
28 FMSHRC 601

17-18. To determine whether the second Mathies criterion was met27 - a discrete safety hazard
contributed to by the violation - it is important to understand the duration of the violation. As
concluded above, the violation began when Dye failed to complete the preshift examination ll.e
was charged with conducting by excluding the working section of th~ No. 4 Section from the
scope ofhis examination. Furthermore, according to the terms of the preshift standard, section
75.360, "[n]o person other than certified examiners may enter or remain in any underground
area nn.less a preshift examination has been completed" for the upcoming shift. 30 C.F .R. §
360(a)(l) (emphasis added).28

JWR' s contention that any hazard to miners was ameliorated by the fact that miners
waited outside the working section of the No. 4 Section while Puckett examined it provides no
basis for reversing the judge's S&S detelmination. JWR ignores the fact that miners, both those
who accompanied Puckett and those who did not, were working in and traveling through a
section that should have been entirely preshifted .before·they entered it but was not. Moreover,

power center to have been located ·~ell inby the mouth of the section" (it was over five
crosscuts inby), it appears the judge did not realize that the power center was nevertheless not .
located within the working section of the mine. The power center was slightly outby the loading
point for the section at that time, given that the belt had been recently extended inby the second
crosscut outby the face. 27 FMSHRC at 760; Gov't Exs. 16, 83C, 83D. Thus, contrary to the
judge's finding, Puckett's testimony did not establish that the four.miners had accompanied
Puckett to the unexamined working section: ·See 21 FMSHRC at 810. The po'1'/er center and the
area outby had been preshifted by Dye during bis earlier examination. ·Nonetheless, the judge's
misunderstanding on this point does not invalidate his .S&S·analysis. See U.S. Steel Mining Co.,
6 FMSHRC 2305, 2310 n .7 (Oct. 1984) (finding error judge made in considering evidence to be
harmless where S&S finding is supported on alternative grounds).
27

Of the four Mathies factors, only the second and third are at issue here.

28

Section 75.360(a)(l) imposes the general preshift examination requirement while
section 75.360(b) sets forth the scope of the examination in different circumstances. See Secy of
Labor v. Spartan Mining Co., 415 F.3d 82, 84-85 (D.C. Cir. 2005); see also Enlow Fork Mining
Co., 19 FMSHRC 5, 12 (Jan. 1997). Consequently, unlike our dissenting colleague, we do not
rigidly read section 75.360(b)(3) in isolation from the rest of the preshi.ft standard. See slip op. at
41-42. That the Secretaxy specifically referred to section 75 .360(b)(3) in the order charging the
violation does not prevent us from reading ''these interconnected provisions" of the preshift
standard together. See Spartan, 415 F .3d at 83-85 (operator cited for violating section
75.360(a)(l) when it failed to examine areas containing energized trolley wires, as required by
section 75.360(b)(7)). Section 75.360(b) simply defines what constitutes a complete preshift.
examination undei section 75.360(a)(l). Indeed, the order states that JWR's failure to comply
with section 75.360(b)(3) rendered the p~shift examination "incomplete" (Gov't Ex. 7 at 1),
which also directly violates section 75.360(a)(l)'s requirement that preshift examinations are to
be "completed."
28 FMSHRC 602·

Puckett's examination did not occur immediately at the start of the shift, or even before miners
entered the No. 4 Section, but rather only after Puckett traveled to the face area of the section.
Thus, miners were on the section for a significant amowit of time before it had been entirely
·
preshifted.
During that time, miners were in a section of the mine that had not been fully preshifted
prior to their entering it, so it was proper for the judge to consider the nature ofthe hazards to
miners that a compfote preshift would have disclosed. As the judge took into account, the men
were in a gassy mine, which prior to·the shift lacked ventilation due to the fan check. 27
FMSHRC at 810. Given that the detection ofmethane buildups is one of the reasons apreshift·
examination is required, the mine' s history as a gassy mine and the·recent ventilation disruption
in the mine constitute substantial evidence to support the conclusion that the Secretary has
established the second Mathies criterion.
As for ignition sources, the judge provided extensive record citations regarding the
mine' s history of fires and ignitions, including on the No. 4 Section. Some had occurred as
recently as two weeks before the explosion. See 27 FMSHRC at 824-25 n.72. There is·also
record evidence ofroof falls.that very week on the No. 4 ·Section;:·both at the face which was
unbolted and remained so during the shift (Tr. V 65-66), and immediately outby the working·
section.29 Roof falls pose another hazard that a preshift examination is intended to detect, and the
potential for them to occur in a gassy mine supports our finding that the second Mathies criterion
has been met. See Buck Creek, 17 FMSHRC at 13.

In terms of the third Mathies factor- whether there was a reasonable likelihood that the
hazard would result in an injury causing event - the·fact that the area outby the power center
had been examined by Dye is not inconsistent with the conclusion.that the violation in this
instance was S&S. 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. There, the Commission found that "hazards
in an unexamined portion of the mine could affect" the area in which miners were working. Id.
at 14.30 Moreover, here there was the risk that one or more of the miners waiting by the power
center could enter the unexamined area before Puckett completed his examination: Indeed; the
testimony of one member of Puckett's crew, roofbolter Terry, can be read to indicate that he may
have done so. Tr. V 24.
Furthermore, the fact that Puckett discovered no hazards in his supplemental examination
of the working section during the next shift does not establish that the violation was not S&S.
We thus cannot agree with oll! ~ssenting ~lleague's chaiacterization of these
conditions as simply "gener~l conditions'~ at ~e mine. Slip op. at 41 n.5.
29

° Commissioner Young would hold the instant case to be materially indistinguishable

3

from Buck Creek.
28 FMSHR.C 603

The Commissio~ in determining whether a violation is S&S, considers circumstances ~g
that normal mining.operations continue without the intervention of an inspector. U.S. Steel, 7
FMSHRC at 1130. The dissent maintains that we should take the results of Puckett's
examination into account, because here the assumption does not apply in that there was no
inspector' s intervention, and thus there is record evidence of what actually transpired after the
violation. Slip op. at 40. We reject that argument for the following reasons: first, because the
violation occurred before Puckett completed his examination of the working seetion, it is
improper to rely only upon l~ter circ~stances to. find that the violation was not S&S. Bellefonte
Lime Co., 20 FMSHRC 1250, 1255 (Nov. 1998). Second, because preshift examinations have a
prophylactic purpose and because certain mine conditions are transitory in nature, later
examinations are not sufficient~y indicative of the conditions ~t may have existed at the time
the area should have been examined. Manalapan Mining Co., 18 FMSHRC 1375, 1382 (opinion
of Commissioners Holen and Riley), 1396 (opinion of Chairman Jordan and Comnlissioner
Marks) (Aug. 1996).
·

In summary, we a$l"ee with the judge' s conclusion that the Secretary has met her burden
of proving that it is reasonably likely that the hazards posed by the failure to conduct a complete
preshift in this instance would result in an iajury-causing event. We therefore affirm the judge's
S&S determination and related finding that the section 75 .360(b)(3) violation was of seriou5
gravity.31
.
3.

Unwarrantable Failure and Negligence

The judge concluded th.at JWR's failure to ensure that the.No. 4 Section was completely
examined before miners were sent to work. on the section was indicative of a serious lack
. of
reasonable care. Id. at 811. The judge found that two .supervisors, Puckett and Hagood, were
responsible for miners being knowingly sent down into the mine before it had been completely
preshifted, placing the miners in harm' s way. Id. Relying on that same evidence, the judge
found JWR to be highly negligent Id.
,

JWR contends that the conduct of neither Puckett nor Hagood justifies the judge' s
conclusion that the violation in this instance resulted from JWR's unwarrantable failure. JWR
Br. at 12-13, 14-15; JWR Reply Br. at 16-18. JWR also argues that the judge failed to consider
all the factors germane to this case in reaching his conclusion. JWR Br. at 13-14.

31

We decline to address in this case the Secretary's request th.at we adopt the
presumption that preshift violations are S&S. Before the judge, the Secretary specifically
disavowed the need for the adoption of such a presumption in this case. See S. Post-Trial Br. at
67-68 (discussing previous ca5es raising issue of whether there should.be a presWnption th.at
preshift violations are S_& S but stating that the judge "does not need to find such a presmnption
in this case").
28 FMSHRC 604

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.
§ 814(d), and refers to more serious conduct by an operator in connection with a violation. fu
Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more th~ 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); see also Buck Creek Coal,
Inc. v. MSHA , 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's wiwarrantahle failure
test).
The Commission has recogriized that whether conduct is "aggravated" in the context of
unwarrantable failure is determined by considering the facts and circumstances of each case to
determine ifany aggravatirig or mitigating circumstances exist. These factors include the length
of time that the violation 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). 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. Id.
The Commission is evenly divided regarding whether the judge correctly determined that
the violation of section 7 5.3'60(b)(3) was attributable to JWR's unwarrantab.l e· failure.
Commissioners Jordan and Y ourig would affirm the determination while Chairman Duffy and
Commissioner Suboleski would reverse. The effect of the split decision is to allow the judge' s
decision to stand as if affirmed. See Pennsylvania Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug.
1990), ajf'd on other grounds, 969 F.2d 1501, 1505 (3d Cir. 1992). The separate opinions of the
Commissioners on this issue are included in Part Ill below.
D.

The Penalty Assessments

The Secretary proposed penalties of$55,000 for each of JWR' s· violations at issue here.32
27 FMSHRC at 812, 826. After finding violations, the judge assessed a penalty of $2,500 for the
section 75.360(b) violation and assessed a penalty of $500 for the section 75.1101-23(c)
violation. Id. The Secretary petitioned for review of both penalty assessments.
The Secretary maintains that the j udge erred in drastically reducing the proposed penalties
and failed adequately to explain his reasons for doing so. S. Br. at 33-34, 46. With regard to the
penalty for the violation of section 75.360(b)(3), the Secretary argues that the judge's finding that
the violation did not.contribute to the fatalities was not a proper explanation for reducing the
32

Shortly after MSHA proposed penalties in this case, the maximum penalty for a
violation was increased from $55,000 to $60,000. 68 Fed. Reg. 6609, 661 1 (Feb. 10, 2003).
28 FMSHRC 605

penalty because even if true, it does no.t detract from the seriousn~s of the violation. Id. at 36.
The Secretary further alleges that with respect to both assessments, the judge erred by taking into
account a document purporting to show previous penalties that had been assessed against JWR.
Id. at 36-38, 46. In response, JWR cont~ds that the reductions were justified by the judge' s
decision to vacate the section 75.360(b)(3) violation in part and his conclusion that the section
75.l 101-23(c) violation was neither S&S nor unwarrantable. JWR ~esp. Br. at 36, 46-47.
While Commission judges are accorded broad discretion in assessing civil .penalties under
the Mine Act, such discretion is not unbounded and must reflect proper consideration of the
penalty criteria set forth in section l lO(i) and the deterrent purpose of the Act,33 Westmoreland
Coal Co., 8 FMSHRC 491, 492 (Apr. 1986)
(citing
Sellersburg
.
.
. Stone Co., 5 FMSHRC 287, 29094 (Mar. 1983), ajf'd, 736.F.2d 1147 (7th Cir. 1984)). In reviewing,ajudge's penalty
assessment, the Commi~ion determines whether the penalty is supported by substantial evidence
and is consistent with the statutory penalty criteria. Hubb Corp., 22 FMSHRC 606, 609 (May
2000). While "a judge' s assessment of.a penalty is an exercise of discretion, assessments lacking
record support, infected by plain error, or otherwise constituting an abuse .o f discretion are not
immune from reversal .... " U.S. Steel Corp., 6 FMSHRC 1423, 1432 (June 198~) .
Furthermore, as the Commission state4 in Sellersburg:
.

.

When ... it is detennined that penalties are appropriate which
substantially diverge from those originally proposed, it behooves
the Commission and its judges to provjde a sufficient ~lanation
ofthe bases underlying the penalties ~ed by the Commission.
If a sufficient explanation for the divergence is not provided, the .
credibility of the administrative scheme providing for the increase

33

Section 11 O(i) states in pertinent part:
The Commission shall have authority to assess all civil
penalties provided in this Act. In assessing civil monetary
penalties, the Commission shall consider [1] the operator' s history
of previous violations, [2] the appropriateness of such penalty to
the size of the busines~ 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).
28 FMSHRC 606

or lowering of penalties after contest may be j eopardized by an
appearance of arbitrariness.
5 FMSHRC at 293; see also Unique EI~ctric, 20 FMSHRC 11191· 1123 & n.4 {Oct. 1998)
{concluding that judge failed to explain the wide divergence between the penalty of $400
assessed and the Secretary's proposed penalties of $8,500); Thunder Basin Coal Co., 19' ·
FMSHRC 1495, 1504 (Sept. 1997) (concluding that judge failed to provide adequate expl~ation
for 95% reduction in penalty assessed); Dolese Bros. Co., 16 FMSHRC 689, 695 (Apr. '1994)
{finding that the judge was required to explain a 60% increase in his civil penalty assessment).
Clearly, the penalties assessed by the judge in this case "substantially diverge" from those
originally proposed by the Secretary. In setting the penalties, the judge relied upon the parties'
stipulations with respect to four of the six criteria, and incorporated his earlier findings with
respect to the other two criteria, gravity and negligence. See 27 FMSHRC at 812, 826. The
judge also noted that his penalties were consistent with the amounts included on a printout of
JWR' s history of violations submitted with the stipulations. Id. at 812 n.58, 826 n .74. He also
noted that the violation of section 7 5 .360(b)(3) did not contribute to the fatalities in this case. Id.
at 812 n.58.
Such a terse analysis is not sufficient to explain the judge's substantial penalty reductions.
Therefore, we vacate and remand the penalty assessments in ·t his case. A more detailed analysis
is particularly needed with.respect to the section 75 .360(b)(3) violation, in light of the judge's·
findings that it was serious and due to high negligence. 27 FMSHRC at 812.34 While it may not
have necessarily been improper for the judge to have considered the lack of causation between
the preshift violation and the fatalities to be a mitigating factor in assessing the penalty, su~h a
determination mu8t be made within the context of the gravity of the violation. ·M oreover, other
factors that potentially lead to a finding of high gravity must be considered; but it appears that the
judge may have permitted the lack of causation to negate his other findings regarding the
seriousness of the violation. Therefore, on remand, the judge should clarify how he views the
lack of causation within the context of the other factors relevant to his finding of high gravity.
On remand, the judge should also clarify the extent to which, in setting both penaities, he
relied upon the dollar amounts appearing as penalties in the stipulated printout of JWR's
34

The order was only partially upheld in that the judge vacated the part alleging that Dye
should have detected inadequate rock dusting. See 27 FMSHRC at 805-06. Consequently, the
j udge may have considered the violation to have simply become another of the many violations
cited as a result of the MSHA investigation that were not viewed as contributing to the
explosions, most of which were settled prior to the hearing. See id. at 758 n.2. However, the
judge did not indicate in his penalty discussion whether this was a factor in his decision to reduce
the penalty for that violation. Similarly, he did not indicate in setting the penalty·for the section
75.1101-23(c) violation whether he substantially reduced it from the amount proposed by the
Secretary because, while affirming the violation, he vacated the special findings.
28 FMSHRC 607

previous history of violations. While it was not error for the judge to ''note,, the equivalency
between the penalties he assessed and those figures, it is impermissible to use those figures to
arrive at the penalties to be assessed in this case. Penalty assessment figures in other cases are
not a factor recognized as relevant by section l lO(i) of the Mine Act, 30 U.S.C. § 820(i). The
Commission has consistently.ruled that, in assessing penalties, a judge D13Y take into account.
only the six criteria listed in section 11 O(i). See RAG Cumberland Res., LP, 26 Fl\:1SHRC 639,
658 (Aug. 2004) (citing cases), affd sub nom. Cumberland Coal Res., LP v. FMSHRC, No. 041427, 2005 WL 3804997 (D.C. Cir. Nov. 10, 2005) (unpublished).

m.
Se_parate Opinions of th~ Commissioners
Commissioner Young, in favor of affirming the judge's determination that.JWR' s violation of
section 75.360(b)(3) was attributable to its unwarrantable failure:
JWR asserts that Puckett's subsequent eX.amination prevents.a finding that JWR' s
violation of section 75.360(b)(3) was attributable to its unwarrantable failure. I cannot agree.
The examination occurred well after Puckett' s crew began working in or traveling to the area just
outby the unexamined working section of the No. 4 Secti~n. JWR would ~red.it Pu~kett for
acting with requisite care (JWR Br. at 12-13), but it fail~ to recognize that it was well within
Puckett's power to examine the working section .before the men entered the No. 4 Section,
where
. .
they were exposed to the hazards, discussed above, of a work area that hat,! not been completely .
examined.
JWR' s argument that Hagood was blameless in this instance is similarly 1µ13.vaiJµig.
JWRBr. at 14; JWRReplyBr. at 16-17. Itw~Hagood who, as Dye's supervisor, instructed
him to cut short his examination, apparently on the conviction that.at that poi:pt in·time no one
would be working during any part of tl)e next shift on the working section of Section 4 due to the
power outage. As shown earlier, however, the evidence demonstrates that JWR planned for that
work to eventually occur, despite the power outage, and JWR chose not to call Hagood as a
witness to explain the discrepancy. .
Section 75.360 requires "mine operators to design preshift examinations around the best
information available at the time the preshift begins,, (61 Fed. Reg. at 9793), and it can be
reasonably concluded that Hagood was not using the best information available in supervising
Dye. As discussed, Puckett testified that sometime prior to his arrival at the mine for the
upcoming shift, part of his crew was assigned to work at the face of the No..4 Section, so he
immediately completed Dye's examination. The Commission has stated that section 75.360(a)
does not authorize such piecemeal examinations of.a mine. Buck Creek Coal Co., 17 ·F MSHRC
8, 12 n.7 (Jan. 1995). The involvement of supervisors Hagood and Puckett in the -violation
support the judge's determination that the violation was attributable to JWR's unwarrantable
failure. See Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011 (Dec. 1987).
28FM~C608

While the judge did not address all ·of the factors the Commission considers in
determining whether a violation is unwarrantable, this deficiency does not lead to the conclusion
that it is ·n ot supported by substantial evidence. To the contrary, other circumstances surrounding
the violation, when considered in light of the requirements of section 75.360, provide additional
substantial evidence in support of the judge's determination that the violation was
unwarrantable. 1
·
As the Commission discussed with respect to upholding the judge' s S&S detennination,
the violation posed a high degree of danger in this particular instance. Undisputed evidence
established that this is one of the gassiest mines in the nation. Tr. IX 16. There is also ample
record evidence of ignitions and roof falls occurring· in and around the tmexamined area
contemporaneous to the time in question. fu short, this mine was plagued ·with the sorts ofper se
deadly hazards which the pre-shift examination is intended to combat. This degree of danger
significantly reduces the threshold for finding, in this context, a serious lack of reasonable care
on JWR' s part. See Midwest Material Co., 19 FMSRH_RC 30, 34 (Jan. 1997).
The extent of the.violation was also significant. The entire working section of the No. 4 ·
Section was not inspected as part of Dye's preshiftexamination, so Puckett had to complete it ·
upon arriving at the No. 4 Section. Tr. IV 200-05. The violation can also be considered
extensive because at least eight miners (Puckett's entire crew) entered the No. 4 Section before it
was completely preshifted. Moreover, as discussed, the exposure of the miners was not
momentary, but continued until Puckett completed his examination'ofthe area inbythe power
center. In addition, any claim by JWR that the violation was not obvious or that it did not :!mow
of the existence of the violation runs counter to Buck Creek; where the Commission warned
operators they could not rely upon the supplemental exaniination provisions:of section 75.361 to
complete preshift examinations that should have been previously completed.
.
Accordingly, I would find that substantial evidence supports the judge1s determination
that the violation of section 7 5.360(b)(3) was attributable to JWR's unwarrantable·failure, as well
as his conclusion for penalty assessment purposes that JWR was highly negligent, and affirin .
both findings.

1

The operator has global responsibility for actions or omissions of its agents, and for the
supervision, coordination, and control of all operations. See, e.g., Asarco, Inc. v. FMSHRC, 868
F.2d 1195 ( 10th Cir. 1989) (holding that under the Mine Act an operator can be held liable
without fault for its employee's violative conduct). This responsibility includes'liability for the
inadequate communications and coordination here.
28 FMSHRC 609

Commissioner Jordan, concurring in part and diss_enting in part:

I agree with the Commission opinion in this matter, except with i:egard to the violation of
30 C.F.R. § 15.1101-23(a). 1 In its discussion of that violation, the majority correctly affirms the
judge's ruling that the regulation governing JWR' s Fire Fighting and Evacuation Plan (the
"FFEP'1, 30 C.F.R. § 75.l 101-23(a) (2001), applied to explosion-related emergenci~. Slip op.
at 8-11. However, unlike my colleagues, I would also hold that the FFEP itself applied to all
emergencies, and was not limited to ev~ons due to fires. Consequently, I would reverse the
judge's determination on this question, and remand the issue to him for further proceedings.
The threshold issue in this matter is to identify the method we will use to.interpret the
plan provision in question. As we recently noted, "[i]t is well established that plan provisions are
enforceable as mandatory standards." Martin County Coal Corp., 28 FMSHRC 247, 2S4-55
(May 2006) (citing UMWA v. Dole, 810 F.2d 662, 671 (D.C. Cir. 1989)); Zeigler Coal Co. v.
Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976); Energy West Mining Co., 17 FMSHRC 1313, 1317 .
(Aug. 1995); Jim Walter Res., Inc., 9 FMSHRC 903, 907 (May 1987) ("JWR"). Consequently, as
discussed in greater detail below, we should apply the same.tools 9f regulatory construction when
interpreting plan provisions as we do when construing regµ.lations promulgated by MSHA.
Because we are treating both as mandatory standards, we should discern their meaning in a
consistent manner..
'

,.· .

Commission precedent providing guidance on regulatory interpretation is clear; where
the language of a regulatory provision. is plain, the terms of that .provision must be enforced as
they ~e written unless .the regulator clearly intended the words to.have a.different meaning or
unless such a meaning would le;ui to absurd results. See I;>yer·v. United States, 832 F.2d 1062,
1066 (9th Cir. 1987); Utah.Power &Light Co., 11FMSHRC192~, 1930 (Oct. 1989);
Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). If, however, a standard is
ambiguous, courts have deferred to the Secretary~ s reasonable interpretation of the regulation.
See Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463.(D.C. Cir. 1994). The Secretary' s
interpretation of a regulation is reasonable where it is "logically consistent with the language of
the regulation and . . . serves a permissible regulatory :function." Gen. Elec. Co. v. EPA, 53 F .3d
1324, 1327 (D.C. Cir. 1995) (citation omitted). The Commission's review, like the coUrts',
involves an examination of whether the.Secretary's interpretation is reasonable. See Energy
West, 40 F.3d at 463 (citing Sec 'y ofLabor v. Cannelton Indus., Inc., 867 F.2d 1432, 1435, 1439
(D.C. Cir. 1989)); see also Consolidation Coal Co. , 14 FMSHRC 956, 969 (June 1992)
(examining whether Secretary's interpretation was reasonable).

1

I also concur in the separate decision of Commissioner Young affirming the judge's
finding that the violation of30 C.F.R. § 75.360(b)(3) was attributable to the operator' s
·
unwarrantable failure.

28 FMSHRG 61 O

Because the plan provision at issue is ambiguous (as it does not clearly state whether it
applies to explosions), I would apply the standard set forth above and determine whether the
Secretary' s interpretation of the plan - i.e., that it applies to explosions - is reasonable and
should be accorded deference. In contrast, my colleagues, holding that JWR' s plan was limited
to fire-related events, decline to apply our longstanding rules of regulatory interpretation to plan
provisions. Relying on the 1987 JWR opinion, they require the Secretary to '"dispel the
ambiguity" ' in the plan ''by establishing the intent of the parties on the issue.',. Slip op. at 11
(citation omitted).2 They hold that the citation cannot stand because the Secretary failed to
present evidence regarding the parties' understanding as to what the operator's obligations to
initiate an evacuation were under the FFEP. Id. at 11-12. They reach this conclusion despite
agreeing with the judge that the parties did not appear to have considered how the plan applied in
the event of an explosion. Id. at 12. Thus, they fault the Secretary for failing to produce
evidence on the parties' intent when they acknowledge that the parties did not even consider the
question.
Given the fact that underground mine operators are required to adopt many plans
containing numerous provisions,3 it is unlikely that.extensive negotiations will take place
regarding all aspects of every plan approved by MSHA. Accordingly, in many instances it would
be impossible for the Secretary to produce the evidence the majority insists it offer here:
" establish[ ] through testimony of those involved in drafting and approving the FFEP, the intent
of the Secretary or JWR with respect to JWR 's evacuation obligations under the plan after an
explosion." Slip op. at 11-12. This would be especially true for plans ~proved on a routin,e
basis, without discussion or debate.
My colleagues' approach has the effect of limiting the agency' s ability to ·e nforce plan
provisions to only those situations where the agency can demonstrate that both negotiation and a
meeting of the minds occurred. This view, however, is contrary to C. W. Mining Co., 18
FMSHRC 1740, 1746-47 (Oct. 1996), which recognized the Secretary has the ultimate say in

2

The language in JWR relied on by the majority is technically dicta, as the Comn:iission
declined to reach the question of whether the provision at issue was part of the approved plan,
because it found that, even if it was, the Secretary did not prove that it was violated. 9 FMSHRC
at 907. The majority's reliance on Harlan Cumberland Coal Co., 20 FMSHRC 1275 (Dec.
1998), slip op. at 11 n.8, is also misplaced. In that case, we were guided by·the fact that "the
Secretary's argument in this case is actually at odds with the broad purpose of the plan to protect
miners from dangerous roof conditions," 20 FMSHRC at 1281, and that "[t]he procedure
suggested by the inspector who filed the citation, considering that he was a roof control
specialist, astonishes us. . . . [T]he logical outgrowth of [his] interpretation of the plan, would
have required miners to enter an unpredictable and highly unstable area to commence mining,
and would have been extremely dangerous." Id. at 1282.
3

See e.g., 30 C.F.R. § 48.3 (training plans); 30 C.F.R. § 75.220 (roof control plans); 30
C.F .R . § 75.370 (mine ventilation plans).
28 FMSHRC 6ll

whether a plan provision is included. In that case, we stated that although "[t]he plan approval
process involves good faith discussions between ~SHA and the mine operator," we did not
mean to suggest:
that the Secretary is in the same position as a private party
conducting arm's length negotiations in a ·free market. lltimately,
absent bad faith or arbitrary acti9n, the Secretary retains the
discretion to insist upon .the in~lusion of specific provisions as a
condition of the plan's approval.

Id. at 1746 (citing UMWA v. Dole, 870 F.2d at 667). Quoting the decision ofthe D.C. Circuit in
UMWA v. Dole, the Commission in C. W. Mining recognized that:
[W]hile the mine operator had a role to play in developing plan
contents, MSHA always retained final responsibility for deciding
what had to be included in the.plan. In 1977 Congress
"caution[ed] that while the operator proposes a plan and is entitled,
as are the miners and representatives ofminers to further
consultation with the Secretary over revisions, $e Secretary must
independently exercise [her] judgment with respect to the content
of such plans in connection with his final approval of the.pl~.''
18 FMSHRC at 1746 (quoting UMWA v. Dole, 870 F.2d at 669 n. 10, quoting S. Rep. No. 181,
95th Cong., 1st Sess. 25 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2d Sess., Legislative History ofthe.Federal Mine Safety and
Health Act of1977, at 613 (1978)).

When a mandatory standard is promulgated under the Mine Act, the Secretary notifieS the
mining community of a proposed requirement, considers the comments filed in response, and
then exercises her judgement as to what the final content of the regulation should be. Similarly,
while the operator can propose plan provisions and may be entitled to further ronsU.ltation over
revisions, the Secretary must ...independently exercise [her] judgment with respect to the content
of such plans"' and "always retain[s] final responsibility for deciding what [has] to be included in
the plan."' UMWA v. Dole, 870 F.2d at 669 n. l 0 (citation omitted). Therefore, I fail to see how
the Secretary can be held to a more difficult standard of proofwhen attempting to enforce a plan
provision than the standard she must meet to enforce a regulation that is the result of notice and
comment rulemaking.

28 FMSHRC 612

In fact, the Commission has ~ted recently that the Secretary is not held to
standards of proof. In Martin County Coal, we explained:

two different

It is well established that plan provisions are enforceable as
mandatory standards. As such, the law governing the
interpretations of regulatory standards is applicable to plan
provisions. Energy West, 17 FMSHRC at 1317.
28 FMSHRC at 254-55 (other citations omitted). Martin County relied on Energy West, which
had applied controlling Commission case law on regulatory interpretation to the interpretation of
a ventilation plan. 28 FMSHRC at 255 n.11 (citing Energy West~ 17 FMSHR.C at 1317). In
Energy West we concluded that the disputed plan provision was unclear, and that accordingly a
remand was necessary to determine whether the Secretary's interpretation of the provision was
reasonable, noting that "[a]n agency's reasonable interpretation of its regulations is entitled to
deference." 17 FMSHRC at 1317 & n.6 (citation omitted).
Applying the legal standard we traditionally use to interpret manqatory standards, I find
that the Secretary' s interpretation - that 1WR' s Firefighting and Evacuation Plan applied to
evacuations prompted by explosions - is reasonable. The relevant plan provision stated that
"[a] supervisor or designated person will assemble all men promptly and lead the way during the
evacuation." FFEP at 3. That provision appeared under a general heading in the FFEP that
stated "Program of Instruction - Underground Emergencies." Id. Section II of the plan, where
this requirement was located, was entitled "Location ofEscapeways, Exits arid Routes of Travel
to the Surface and Evacuation Procedures." ld.4 Significantly, the language of the FFEP is not
expressly limited to fire-related incidents.
The Secretary's interpretation of the plan provision - that it applies to explosions - is
clearly consistent with the purpose of section 75.l 101-23(a}, which governed emergency plans.
This regulation required in pertinent part that an operator was to ·adopt a·program to instruct all
mmers:
in the location and use of fire fighting equipment, location of
escapeways, exits, and routes of travel to the surface, and proper
evacuation procedures to be followed in the event of an emergency.
30 C.F.R. § 75.1 101-23(a) (2001). I find it notable that the governing regulation required plans
for evacuations due to an "emergency," and was not limited to a fire-related emergency.5 I also

4

The Secretary correctly notes that none qf the provisiqns in Section II, which concerned
escapeways and evacuations, used the word '~fire." S. Br. at 18-20 (citing Gov't Ex. 34 at 3-4).
5

I do not believe that subsequent revisions to the plan, covering "general evacuation ·
procedures," JWR Ex . 266, undermines the reasonableness of the Secretary' s interpretation here.
28 FMSHRG613

note that, prior to the explosion, MSHA had announced that it required "each operator of an
underground coal mine to adopt a program for mine evacuation in the event of an emergency,
such as fire or explosion." 60 Fed. Reg. 23567 (May 8, 1995) (MSHA Semi-Annual Unified ·
Agenda) (emphasis added). 6
Moreover, safety issues involving fires and explosions are often interrelated. Although
the judge ultimately concluded that the plan did not.apply to this evacuation, in his order denying
JWR' s motion for summary decision he stated:

I find JWR's attempt to differentiate between a fire and an
explosion tq be a distinction without difference. I concur with the
Se~tary's statement that "explosions and fires are similar in
nature and present similar hazards to miners underground." I agree
with the Secretary that ''it is reasonable to anticipate that a fire
could create an explosion risk ~d an explosion could create a fire
risk." Tiris is because fires and explosions are fundamentally
interrelated. .. . These two events are so ~tertwined, I conclude it
is eminently reasonable to.view the "emergency'' referred to in the
standard as inclusive of an explos!on. In other words, it ~ ·
reasonable to apply the standard to both occurrences.
26 FMSHRC 623, 627-28 (July 2004) (AU) (citations omitted).7 Consistent with this view, ~
note that section 311 of the Mine Act, 30 U.S.C. § 871, entitled "Fire Protections/'. also contains
a requirement pertall:ting to explosions, as it restricts the amount of methane that may be present
during welding activities. 30 U .S.C. § 871(d); see also 30 C.F.R. § 75.110_6.
The final inquiry regarding this citation is whether the operator violated the provision of
the plan requlling that a supervisor or o.t her designated person "assemble and lead" miners during
an evacuation. The judge's decision barely touched.upon this.issue (see.21FMSHRC757, 817
n.66 (Nov. 2005) (ALJ)), and JWR has argued that the actions of the miners who did not vacate
the mine but instead traveled towards the area of the first explosion did not necessarily do so in
contravention of the FFEP. See JWRResp. Br._at 31-34. Resolution of such issues are best left
to the judge in the first instance, and, accordingly, I would remand this question to him.

6

Because this announcement alerted operators that the regulation required plan
provisions to cover explosion-related evacuations, I reject JWR' s claim, JWR Resp. Br. at 30-31,
that it lacked notice that the plan provision covered emergencies caused by explosion.
7

The judge also noted that the similarity between a fire and an explosion was
acknowledged in a report created by JWR's expert, who stated that "[i]t is probable that [the]
second ignition of methane resulted in the propagation of flaming" and "[t]he flame would then
accelerate into~ gas explosion." 26 FMSHRC at 628 n.6 (citing Pet'r 's Br. Ex. J . .at 46).
28 FMSHRC 614

For the foregoing reasons, I would vacate and remand the judge's determination that JWR
did not violate section 75.1101-23(a) .

. . &~
~dan,
°'#8•ioner

28 FMSHRC 615

Commissioner Suboleski, concurring and dissenting:
I concur with my colleagues that JWR violated section 75.360(b) when it failed to
adequately preshift the Number 4 section for the September 23 day shift. However, I depart with
them in affinning the judge that the violation was significant and substantial ("S&S") and
occurred because of JWR' s unwarrantable failure to comply with the regulation.
1.

Significant and Substantial

The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d),
and refers to more serious violations. A violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injwy or illness of a reasonably serious nature. See Cement Div., Nat 'l Gypsum Co.,
3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the
Commission further explained:

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

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir.
1995); Austin Power, Inc. v. Secretary ofLabor, 861F.2d99, 103 (5th Cir. 1988) (approving
Mathies criteria).
Here, as in many cases where the S&S determination is challenged, it is the application of
the third Mathies element that is at issue. "[T]he question [ofwhether the violation is S&S] must
be resolved on the basis of the circumstances as they existed at the time the violation was cited
and as they might have existed had normal mining operations continued." U.S. Steel Mining Co.,
7 FMSHRC 1125, 1130 (Aug. 1985). The Commission added that the operator' s response in
abating the citation does not obviate the need to determine ..whether an injury would have been
reasonably likely to occur ifmining operations had continued without the inspector's
intervention." Id. (citation omitted) (emphasis added); see also Rushton Mining Co., 11
FMSHRC 1432, 1435 (Aug. 1989). In the present proceedllig, the violation stands in contrast to
the S&S cases that have generally come before the Commission because the order was issued
"after the fact," over one year after an accident investigation that was triggered by the tragic, but
unrelated, explosions. Gov't Ex. 7.

28 f'MSHRC 616

Section 75.360(b)(3) reqilires that a pr~sbift examination be conducted in 'Tw]orking
sections and areas where mechanizf?d mining equipm.ent is being installed otremoved, if anyone
is scheduled to work on the·section or in the area during the oncoming shift[,]" and further states
that "[t]he scope of the examination shall include the working places.'' 30 C.F.R. § 75.360(b)(3).
Section 75.2 defines ''working section" as, ~'All areas ofthe coal mine from the loading point of
the section to and including the working faces." 30 C.F.R. § 75.2. "Working place" is further
·
defmed as, 'The area of a coal mine inby the last open crosscut.'' Id.
The definitions in section 75.2, when read in conjunction with section 75.360(b)(3), make
clear that the presbift examination requirement applies to specific areas of the mine, depending
on their location and miner presence. Any remaining doubt about the carefully circumscribed
nature of section 75.360(b)(3)
be resolved by the Federal Register preamble to this rule.
There, the Secretary explained, in rejecting a commenter's suggestion that all areas of the mine,
including idle areas, be examined during a preshift ex~tion, ''There is no need to require
areas of the mine where persons are not scheduled to work or travel to be examined." 57 Fed.
Reg. 20868, 20893 (May 15, 1992); see also 61 Fed. Reg. 9764, 9793 (Mar. 11, 1996) ('The
presbift examination requirements in the final rule are intended to focus the atterition of the
examiner in critical areas."). As more fully explained below, the violation here~ on whether
work was scbedliled in the working section of the No. 4 Secti<?n when Dye was instructed to
·
·
conduct the preshift examination on SePtember 28.

can

The order charges JWR with a violation of section 75.360(b)(3) because:
an adequate preshift examination was not conducted in 4 Section where ·
persons were scheduled to perform m3intenance work and install roof
bolts during the oncoming day shift on September 23, 2001. The
examination was incomplete in that an examination of the working places
was not conducted where miners were scheduled to roof bolt the
unsupported face areas.
Gov't Ex: 7 at 1. 1 The theory of violation of section 75.360(b)(3) is that miners were scheduled
to work at a particular location within the No. 4 Section ·that was not examined when Dye
conducted his preshift examination. 27 FMSHRC at 807, citing S. Br. at 63-64. As the judge
stated, "[I]f anyone was 'scheduled to work on the section' prior to Dye's examination, the
standard was violated." 27 FMSHRC at 808. In short, the essence of the violation is the
inadequacy of the preshift examination. See S. Resp. Br. at 11.

1

The·remamder of the order, alleging Dye's failure to recognize inadequate rockdusting,
was not upheld by the judge. A close examination of the order indicates that the hazard
recognition training required by MSHA for abatement appears to pertain only to the alleged
failure to recognize deficient rockdusting, and not to examining all scheduled work places.
28 FMSHRC 617

Were it not for the scheduling of maintenance in the No. 4 working section, prior to
Dye's examination, there would be no violation. Thus, a bookkeeping entry that occurred prior
to the Sunday day-shift determined whether JWR is found to have Violated the regulation. Due
to the strict liability nature ofthe Mine Act, once Dye performed an examination of the No. 4
Section that did not include the.areas where miners were scheduled tO roo.fbolt and do other
maintenance work, the violation of section 75.360(b)(3) was complete. Once the day shift had
begun, neither Dye nor Puckett could undo the violation

In analyzing the S&S designation,.the judge xeasoned:
Given the propensity of the mine to liberate methane, and the fact
that electric and diesel eqmpment was in place and that the power
.would have been restored had normal operations continued, I find
that it was reasonably likely the failure to conduct a complete
preshift examinatio~ significantly and substantially contribute4 to
the danger of the miners being involved in a methane-related
ignition or explosion.
27 FMSHRC at 810 (emphasis added). However, contrary to the judge's analysis, we do not
have to guess as to what occurred after the violation. There WaS no intervening action by an
inspector that requires the application of the legal fiction, "asswning continued normal mining
operations." Rather, the record clearly·shows that, when Puckett took his cr~w into the mine, he
proceeded no further than the power center and other outby areas that had heen preshifted. He
then performed a suppl~ental examination in unexamined areas ~f the No. 4 Section before
miners proceeded further.2 27 FMSHRC ~t 807. The judge' s analysis cannot be.sustained in
light of the undisputed testimony as to.what actually occurred after Dye inadequately preshifted
the area in violation of section 75.360(b)(3).3
·

2

In agreement with the majority, I also conclude that the judge was incorrect when he
found that the power center, where Puckett' s crew went in the No. 4 Section, was in the working
section. Slip op. at 23-24 n.26. Accordingly, when the miners were at the power center and
other areas outby that had been preshifted, there was no violation and no hazard as a result of
their presence in the those areas of the No. 4 Section.
3

The majority rejects the position that there is no.need to apply the legal :fiction,
"continued normal mining conditions," but carmot cite any case to support the analysis when it is
known exactly what happened in the hours after Dye' s failure to preshift the entire No. 4 Section.
That is especially so here because the order issued months after the violation. In this regard, in
addition to relying on general conditions in the mine to support its S&S determination, the
majority also speclilates that miners on Pucketts's crew "could enter the unexamined area before
Puckett completed his ex~ation." Slip op. at 25. Even under the majority' s approach to the
violation, such an assumption of
disobedience, in the absence of record support, is
unwarranted. See Cougar Coal Co., 25 FMSHRC 513, 519 (Sept. 2003) (conduct of rank-and-

miner

28 FMSHRC 618

The only "hazard" ·that the miners were exposed to by their presence in areas of the mine
that had been preshifted was the same conditions that miners would have been exposed to if no
work had been·scheduled in the working areas of the No. 4 Section.4 Thus, I cannot conclude,
based on the particular facts surrounding the violation (Texasgulf, Inc., 10 FMSHRC 498, 501
(Apr. 1988)), that there was a reasonable likelihood that the hazard contributed by the violation
..
would result in an injury.5

Jn an effort to sustain the S&S designation, the majority transforms the order MSHA
issued from one charging a violation of section 75.360(b)(3) to one charging a violation of
section 75.360(a)(l), which.provides, in part, "No p~n 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." 30 C.F.R. § 75.360(a)(l). See slip op. at 24-25. However, the
majority's effort to explain ''the duration of the violation," slip op. at 24, is simply contrary to the
language of the order, which is set out on page 39, supra, and the Secretary's theory of violation

file miner in disobeying instructions of supervisor cannot support unwarrantability_qesignation
where there no evidence to suggest minex: had disregarded instruction of a supervisor).
·
4

If no work had been schedu.led, there would be no violation. As a comparison consider
that Puckett, after leaving the No. 4 Section, took two men to the No. 6 Sectio~ which had been
preshifted in the same manner as the No. 4 Section. _There is no allegation that a violation was
committed and no assertion that Pu_c kett and his crew, by their presence in the No. 6 Section,
were exposed to hazards from the unexamined areas of~ section.
5

While I have focrised my attention to the third Mathies element, the judge' s
determination with regard to the second element - a discrete safety hazard contributed to by the
violation - is suspect. Jn this regard, the judge erred when he analyzed this elem~t assuming
''continued normal mining operations." 27 FMSHRC at 809. The Commission has generally
applied that assmnption only to analyzing the third element ofMathies. See, e.g., Rushton
Mining Co., 11 FMSHRC 1432, 1435 (Aug. 1989). Further, the judge erred when he found, in
analyzing the second element, that Puckett and his crew had traveled in unexamined areas of the
No. 4 Section before he performed the supplemental examination. 27 FMSHRC at 810. The
majority acknowledges this factual error and indicates that it is deciding the case on.grounds
different than those considered by the judge. Slip op. at 23-24 n.26. However, the majority
subsequently indicates that it is affirming the judge's :findings on the second MathieS element on
substantial evidence grounds, id. at 24-25 - a position I find difficult to reconcile with its
alternative approach. Finally, general conditions at the mine cannot suffice to establish a·hazard
without a connection to the violation. See Texasgulf, Inc., 10 FMSHRC at 500. Jn this regard,
the majority cites to :general conditions at the mine, which even the judge did not rely on in his
S&S analysis of the section 75.360(b)(3) vioiation, to bolster his hazard analysis. Slip op. at 25,
citing 27 FMSHRC at 824-25 n .72. However, as Mathies requires, the hazard must be
contributed to by the violation. Sec '.Y ofLabor v. FMSHRC, 111 F.3d 913, 917-18 (D.C. Cir.
.
1997).
28 FMSHRC 619

before the Commission. S. Resp. Br. at 11-24. It is als.o evident from the majority's analysis of
the violation of section 75.360(b)(3), in which I .concl,lr, that Puckett and the miners who
accompanied him were not in a "working section" or a "working place".and w~re in an area of
the No. 4 Section that had been properly examined. Thus, the majority's attempt to expansively
apply the narrowly drafted section 75.360(b)(3) to prohibit miners from going into any area of
the No. 5 mine until the entire No. 4 Section had been examined, slip op. at 24-25, is contrary to
the plain language of the regulation and its regulatory history.6
Finally, the majority relies on Buck Creek Coal Co., Inc., 17 FMSHRC 8 (Jan. 1995), to
support its S&S determination. However, that case.is readily distinguishabie in several key
aspects. First, at Buck Creek the mine had been idle for the weekend.and the examiners had
begWl the required preshift examination prior to the first working shift. Id. at 9. The violation
occurred when miners entered the mine while the preshift examination was ongoing, that is,
before the examiners had completed their inspection. .Id. Here, there is no.allegation that the
miners entered an unexamined mine; the charge is that the preshift examination, which had been
completed, was, on one section only, inadequate.
.

.

Second, in Buck Creek the Commission concluded that the operator violated section
75.360(a) when it allowed, prior to an oncoming.shift, miners into an area of the mine before a
preshift examination had been completed. Id. at 9-11. In con~t, the violation in this case
stems from the inadequacy of the preshift examination, not from the presence of the Puckett's
crew at the electrical center in the No. 4 Section. MSHA does not allege that a violation _of
section 75.360(a) occurred.7 Most significantly, ni. Buck ,Creek the operator had shut down the
mine over a weekend, thus giving ri~e to the dangers atten~t to an idle mine. Id. at 14. Here,
JWR scheduled a maintenance crew to work on the day shift.following an owl shift in ongoing
operations. Thus, I cannot agree that Buck Creek is applicable to the facts of this case.

6

The majority' s suggestion that an allegation of a violation of section 75.360(b)(3)
cannot stand by itsel~ but must be read to include a general violation of section 75.360(a)(l }, slip
op. at 24 n.28, is at odds with Commission cases. See, e:g., Eagle Energy, Inc., 23 .F MSHRC
1107, 1118 (Oct. 2001); Enlow Fork Mining Co., 19 FMSHRCS, 14-16 (Jan. 1997). In reading
and interpreting regulations, the Commission has examined the context in which a regulation
appears. RAG Shoshone Coal Corp., 26 FMSHRC 75, 80 (Feb. 2004); see.also Sec'y ofLaborv.
Spartan Mining Co., 415 F.3d 82, 84-85 (D.C. Cir. 2005). However, here the majority seeks to
read into its S&S analysis a general violation of the pre-shift examination requiremen~ in section
75.360(a)(l}, and I can find no basis for doing that.
Unlike my colleagues, I believe that the _Secretary is quite ~apable of distinguishing
between a violation of section 75.360(a)(l) and a violation of section 75.360(b)(3), see Eagle
Energy, Inc. and Enlow Fork Mining, supra, and I am confident ~at, if she believed a violation
of section 75.360(a)(l) had occurred, she would have alleged it as she did in the Spartan Mining
case that my colleagues cite.
7

28 FMSHRC 620

In summary, in the absence of any allegation that JWR's action was an effort to subvert
the preshifting requirements, and given that the omy difference between the occurrence of a
violation or not is whether, midway through the midnight shift, the work continued to be
scheduled, I am unable to find the violation to be S&S. Ifworkwas not scheduled in the No. 4
Section at that time, there is no violation; if it was scheduled, there is· a violation. When the only·
difference between what is or is not a violation is a ''yes" or "no" on a written schedule or in the ·
thoughts of a foreman; then a discrete safety hazard reasonably likely to contribute to a
reasonably serious injury·simply cann~t be found.
2.

Unwarrantabie Failure

I would also reverse the judge with regard to his unwarrantability detemiinatioil. The
unwarrantable failure tenninology.is taken from section 104(d) of the Act, 30 U.S.C. § 814(d),.
and refers to more serious conduct by an operator in connection·With a violation. Jil 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 "senouslack ofreasonable care." Id. at 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal,1nc. v.
MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure test).
The judge's unwarraiitability determination is brief but premised on the incorrect finding
power ·center was in an uninspected area of the · ·
made in the judge's S&S determination th~
No. 4 Section. 27 FMSHRC at 810-11. The judge's unwarrantable failure analysis·turns on
Puckett's conduct and having "plac[ed] miners on the section and thus in harm's way before the
preshift examination was completed." Id. at 811. Thus, the judge erred as a matter of law when
he relied on this crucial erroneous factual finding. I further conclude that largely uncontroverted
record testimony supports only one conclusion on this issue - that the violation of section
75.360(b)(3) was not due to JWR's unwarrantable failure.

the

The Commission has recognized that a number of factors are relevant in determining
whether a violation is the result of an operator's failure, such as the extensiveness of the violative
condition, the length of time that the.violative condition has existed, the operator's efforts to
eliminate the violative condition, and whether an operator has been placed on notice that greater
efforts are necessary for compliance. Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb.
1994); Peabody Coal Co., 14 FMSHRC 1258, 1261(Aug.1992). The Commission also
considers whether the violative condition is obvious , or poses a high degree of danger.
BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44{Aug.1992) (finding unwarrantable failure
where unsaddled beams "presented a danger" to miners entering area); Warren Steen Constr.,
Inc., 14 FMSHRC 1125, 1129 (July 1992) ,(finding violation aggravated· and unwarrantable based
on "common knowledge that power lines are haiardous, and ... that precautions are required
when working near power lines with heavy equipment"); Quin/and Coals, Inc., 1OFMSHRC

28 FMSHRC 621

705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984) (conspicuous
nature of the violative condition supports unwarrantable failure finding).
The violation occurred here when Dye failed to examine all areas in the No. 4 Section.
Based on the record testimony, it is apparent _thatDye's failure-to examine all areas of the No. 4
Section, including those areas .where maintenance work was scheduled but had no power, was of
short duration. There are no allegations that any similar violations had occurred elsewhere in the
mine.8 Thus, there is no charge that JWR was on notice that greater efforts were necessary to
avoid violations of the preshift examination requirement.9 Further, Puckett quickly remedied
Dye's failme to completely preshift the No. 4 Section by performing a supplemental examination
prior to pennitting his crew to go beyond the electrical center. Compare Enlow Fork Mining Co.,
19 FMSHRC at 17 (Commission rejected assertion that prompt post-citation efforts to abate
violation should be considered in an unwarrantable failure determination, noting that focus is on
compliance efforts prior to the issuance of citation).
·
Most significantly, the violation did not pose a high degree of danger to ntjners. As ·noted
above, JWR violated·section 75.360(b)(3.) when Dye failed to preshift .the No. 4 Section in it-:;
entirety when work was scheduled·to be performed there-on the next shift. The violation.did not
turn on the presence of miners at the electrical center.. Instead, the .focus of consideration is
Dye's conduct and the conditions at the time ofthe violation. See Quinland Coals, Inc., 10
FMSHRC at 708-09. Given that the violation stemmed from the advanced planning of work in
the No. 4 Section, I cannot conclude that the dangers arising from Dye's inadequate. pres~.ft
examination were materially different, indeed not at all different; from those conditions that
would have becm. present if no work had been scbeduled.10 ·
· ·
Finally, I cannot conclude that JWR's actions can be characterized as.caused by "reckless
disregard" or ''intentional misconduct." In this regard, Dye conducted bis preshift examination at
a time when power was down in the No. 4 Section, and he assumed that, if power was not

My colleague's statement th~ the violation was "extensive," slip op. at 31, is based on
the erroneous assumption that no miner could go in.the No. 5 mine as long as any area of the No.
4 Section was unexamined. That assumption-, however, ignores the.carefully drafted words ofthe
citation, alleging an inadequate preshift examination in some areas of the No. 4 Section - under
section 75.360(b)(3), not under section 75.360(a).
8

9

Dye's testimony that he had been performing preshift examinations since 1996 and
never been cited for an inadequate preshift exam, Tr. ill .409-10, was uncontradicted.
My colleague'~ plenazyreview of the record to glean facts relating to general
conditions at the niine.dpes not resolve whether the Dye's inadequa,te examination was due to
JWR' s unwarrantable failure because these conditions, even if characterized as ' ]Jer se deadly
hazards," slip op. at 31, must somehow relate to the operator's violative conduct. See cases
cited, slip op. at 42 n.5.
10

28 FMSHRC 622

restored, no maintenance work would be performed in the section. Tr. ill 447-48. The preamble
to section 75.360(b)(3) contemplates this sort of exigent circumstance to relieve operators of the
obligation to preshift areas where miners would otherwise be scheduled to work:
Preshift examinations, by their natme, must.be completed before
the start of the shift. Changes in conditions, however, such as a
breakdown of equipment, can alter planned work schedules. To
accommodate these circumstances, the final rule requires mine
operators to design preshift examinations arotind the best
information available at the time the preshift begins. Ifchanges
must be made, § 7 5.361 ·specifies that areas not presbift examined
be covered by a supplemental examination .. . before miners enter
the area.
61 Fed. Reg. at 9793. While I have affirmed aviolation of the regulation, because substantial,
though circumstantial, evidence supports the judge's conclusion that JWR had riot rescheduled
when the preshift was conducted, 27 FMSHRC at SOS, nevertheless I cannot conclude that
JWR' s conduct was indicative of reckless disregard in light of the lack of danger and the
mitigating circumstance of the power outage. See Cougar Coal Co, 25 FMSHRC at 518-19
fu sum, I cannot conclude that JWR's violation of section 75.360(b)(3) was due its
llllwarrantable failure.
·

28 FMSHRC 623

Chairman Duffy, concurring and dissenting:
While I find that JWR violated the preshift examination requirement in section ~5.360(b)
and that the violation was significant and substanti~ in nature, I join with Commissioner
Suboleski in finding that the violation was not caused by JWR's unwarrantable failure to comply
with the standard.
The key to the degree of culpability attributable to JWR with respect to this violation is
the motivation of Hagood in directing.Dye not to preshift beyond the power center in the No. 4
section. The problem is that Hagood did not testify, so we can only speculate to that
motivation.

as

Preshift examinations, by their nature, must be completed before
the start of the shift. Changes in conditions, however, such as a
breakdown in equipment, can.alter planned work schedules. To
acconpnodate these circumstances, the :final ruJe·requiies
operators to design preshift examinations around the best
information available at the time_.the preshift begins.

mine

Preamble to section 75.360, 61 Fed. Reg. at 9793 (emphasis added).
.

.

It may well be that Hagood believed at the time he spoke to Dye that the power out~ge
would preclude any work being performed inby the power center during the day shift, thus
making a preshift of that area unnecessary. On the other hand, he may have decided to take a
chance on ayoiding a full preshift on the premise that the unexamined areas could be picked up
on a supplemental examination. Without his-testimony, we simply do not know his state of mind·
at the time the preshift began. The lack of this cmcial evidence precludes, in my view, a finding
of unwarrantable failure.
Likewise, I agree with Commissioner Suboleski that the judge's findjng may have been
colored by his erroneous view that the miners were permitted to enter an area of Section :N"o. 4
that had not been preshifted. If that were the case, the violation might well be characterized as
unwarrantable. Since that was not the case, however, I do not believe that JWR's conduct rises to
the level of ')'ec.kless disregard,'' intentional misconduct," indifference," or a "serious.lack of
reasonable care." Emery Mining Corp., 9 FMSHRC 1997, 2000-04 (Dec. 1987).
·

28 FMSHR.C 624

Distribution
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nc1 Floor West
Arlington, VA 22209-2247
Timothy M Biddle, Esq.
Thomas C. Means, Esq.
Bridget E. Littlefield, Esq.
Crowell & Moring, LLP
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004-2595
David M . Smith, Esq.
Maynard, Cooper & Gale, P.C.
1901 Sixth Avenue North, Suite 2400
Birmingham, AL 35203
Judith Rivlin, Esq.
United Mine Workers of America
8315 Lee Highway
Fairfax, VA 22031
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

28 FMSHRC 625

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

August 30, 2006
SECRETARY OF LABOR,

MINE SAFETY AND HEALTif

Docket No. VA 2006:-33-M
A.C. No. 44--06600-26884 A

ADMINISTRATION (MSHA)

Docket No. VA 2006-34-M
A.C. No. 44-06600-26885 A

v.
PAUL J. BENNETT,
GLORIA W. HOLMES, and
STEVEN K. HANKS, employed by
BENNETT MINERAL COMPANY

Docket No. VA 2006-35-M
A.C. No. 44-06600-26886 A

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30.U.S.C.
§ 801 et seq. (2000) (''Mine Act''). 1 On July 13, 2006, the Commission received a letter from
Bennett Mineral Company sent on behalf of Paul J. Bennett, Jr., Gloria W. Holm.es, and Steven
K. Hanks, all employees of the company, requesting that the Commission reopen penalty
assessments against the employees under section 1lO(c) of the Mine.Act, 30 U.S.C. § 820(c),.that
had become final orders of the Commission pursuant to section 105(a) of the Act, 30 U.S.C.
§ 815(a).
Under the Commission's Procedural Rules, an individual charged under section 110(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.
1

Pursuant'to Commission Procedural Rule 12, on our own motion, we hereby
consolidate Docket Numbers VA 2006-33-M, VA 2006-34-M, and VA 2006-35-M, in which all
the respondents are employees of Bennett Mineral Company, and which all involve similar
procedural issues. 29 C.F.R. § 2700.12.
28 FMSHRC 626

The Mine Safety and Health Administration (''MSHA") sent proposed penalty
assessments to the respondents in May 2004.2 Although the respondents contend that they filed
appeals in June 2004 (Letter from Donna M .. Rutkowski, HR/Safety Administrator, dated July 12,
2006), these penalties became final orders in June 2004. See letters from MSHA to respondents
dated June 14, 2006. However, the related penalty proceeding against the operator was
dismissed pursuant to an unpublished order issued by Chief Administrative Law Judge Robert J.
Lesnick on December 16, 2004. Order of Dismissal, Bennett Mineral Co., Docket No. VA
2004-46-M. J'he respondents' letter states that until they received delinquency notices dated
mid-June 2006, they believed that all related cases had also been dismissed.
On August 2, 2006, the Secretary filed a response to the employees' request for relief
stating that "[a]fter reviewing the circumstances pertaining to the case[s], the Secretary states that
she will not prosecute the case[s] further." S. Resp. at 1.

Based.on the Secretary' s response, it appears that she has in effect terminated the
citations against Bennett, Holmes, and Hanks, and we therefore find their motions to reopen
moot. See Black Gold Trucking Co., 23 FMSHRC 797 (Aug. 2001).

2

The Proposed Penalty Assessments for Holmes and Hanks are dated May 12, 2004.
Bennett has stated that he received "a personal citation" from MSHA on May 17, 2004. Bennett
Letter to MSHA (June 17, 2004).
28 FMSHRC 627

Accordingly, the motions to reopen are denied, and these proceedings are dismissed.

28 FMSHR.C 628

Distribution
Donna M. Rutkowski, ~ Safety Administrator
Bennett Mineral Company
P.O. Box 28
Walkerton, VA 23177
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
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

28 FMSHRC 629

28 FMSHRC 630

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601New Jersey Ave., N.W., Suite 9500
Washington, D.C. 20001-2021

July 19, 2006

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

CIVIL PENALTY PROCEEDINGS

.. .

Docket No. SE 2005-48-M
A.C. No. 01-01138-44059

v.
Docket No. SE 2005-55-M
A.C. No. 01-01138-46301 .
ELMORE SAND & GRAVEL, INC.,
Respondent

Scott Pitt

DECISION
Appearances: Leslie John Rodriquez, Esq., Office of the Solicitor, U.S. Department of Labor,
Atlanta, Georgia, on behalf of the Petitioner
George W. Walker III, Esq., and J. David Martin, Esq., Copeland, Franco, Screws
& Gill, P.A., Montgomery, Alabama, on behalf of the Respondent
Judge Weisberger

Before:

Statement of the Case
These cases are before me based upon Petitions for Assessment of Civil Penalty filed by
the Secretary of Labor {"Secretary"), alleging violations by Elmore Sand & Gravel, Inc.
("Elmore") of 30 C.F.R. § 56.14100(c) and 56.1421 l(c). On November 3, 2005, the parties filed
a Joint Statement of Agreed and Disputed Facts ("Jt. Statement"). ·On November 8 and 9, 2005,
a hearing was held in Montgomery, Alabama. 1 At the hearing, the parties filed Joint Stipulations.
On November 30, 2005, pursuant to their stipulations, the parties filed four joint exhibits {JX 1,
JX 2, JX 3, and JX 4). Subsequent to the hearing, the parties each filed Proposed Findings of
Fact and either a Legal Argument or Memorandum of Law. On April 24, 2006, the parties each
filed objections to the other parties' findings of fact and legal arguments.

1

At the hearing evidence was adduced only regarding Citation No. 6093107 (violation of
Section 56.14100(c)).
28 FMSHRC 631

Joint Statement of Ai:reed Facts
The parties, in a Joint Statement of Agreed and Disputed Facts agreed to the following facts:
1. Donnie Zeigler had been a haul truck operator at Elmore Sand
& Gravel, Inc. ("ESG'') since March of2003.
2. Prior to the date of the accident, Zeigler had been trained by ESG in
compliance with 30 C.F.R Part 46.
3. Prior to the date of the accident, Zeigler had been trained by ESG to
never get under the raised dump bed on the Terex Haul Truck he operated without first
employing the safety prop.

4. It was ESG' s company policy to require the operators of its haul trucks ·
to perform a daily vehicle inspection both before and after completing their shift and to
record their findings on an Operator's Daily Vehicle Inspection Report.

5. From December 15 to·necember 17, 2003, Zeigler was suspended from
work due to his failure to show up for work or call in, on December 13, 2003.
6. During the time that Zeigler was suspended, the Terex Haul Truck
which he normally operated was being run by Jonas Lee Hall. During the time that Hall
operated the Terex Haul Truck, it-overturned;
7. The only problem with the Terex Haul Truck experienced by Hall was ·
that the dump bed was slow coming down.
8. When Zeigler returned to work on December 18111, he immediately took
the Terex Haul to the maintenance shop for them to repair wires from the wiring .harness
that were disconnected.
9. Jack Barnes and Eric Hilyer in the maintenance shop repaired the
wiring harness.
10. Zeigler turned in Operator's Vehicle Inspection Reports dated
December 18 and December 19, 2003.
11. Between December 18, 2003 and the time Zeigler told Derrell
Saunders that he was going to check his brakes on the morning of December 20,
2003, Zeigler did not report any problems with the Terex Haul Truck At the
conclusion ofhis shift on December 19, 2003, Zeigler specifically told Mark
Montgomery that the Terex Haul Truck was running fine.

28 FMSHRC 632

12. After dumping his second load of the day on the morning of
December 20, 2003, Zeigler called fellow operator Saunders on their two-way
radio and told him that the brake light on the dashboard of his truck kept coming
on and that he was going to check his brakes.
13. Zeigler then pulled his truck forward approximately tWenty feet,
with the bed fully raised.
·
14. The dump bed on Zeigler's truck was then seen slOwly
lowering.

15. While driving around Zeigler's truck, Saunders saw Zeigler pinned
under the dump bed and iinmediately jmnped out of his truck and got into the
cab of Zeigler' s truck to raise the dump bed.
16. Saunders moved the joystick to the raise·position and raised the
dumb bed off Zeigler.
17. Saunders is the only witness who can testify as .to the position of the
joystick at the time of the accident. ·

18. Zeigler was found positioned near the brake cylinder·and was facing
towards the cab of the truck.
·
19. The Terex Haul Truck was on level ground at the time of the accident.
.

.

20. Winds were light and variable on the day of the accident.
21. The emergency workers who responded to the 911 call regarding the
accident had to undo some hoses in the process of removing Zeigler from the
Terex Haul Truck.
22. Zeigler later died of injuries sustained as a result of the dump bed
lowering on him.
23. The dunip bed control joystick on the Terex Haul Truck on which
Zeigler was killed has four positions, in descending·order from the top: Float,
Lower, Hold and Raise. The joystick will not remain in either the Raise or Lower
positions unless the operator physically holds it there. The joystick will spring
bac~ to, and remain in ihe Hold.position when released from the LOwer arid
Raised positions. The Float is a detented position and the joystick will remain in
that position if released. fu the Float position, the weight ·of the dump bed causes
it to lower. In the Raise and Lower positions, hydraulic pressure powers the dump
bed up and down.
28 FMSHRC 633

24. The dump bed control joystick operated the dump bed irrespective of
whether th~ wiring harness was disconnected from the truck tractor to the truck
trailer.
25. During the investigation, the Mine Safety and Health Administration
(''MSHA") tested the safety p~op on the Terex Haul Truck and found that it was
functional in that it prevented the free and uncontrolled descent of the dump bed
by stopping it from coming down. The MSHA investigators concluded that the
safety prop on the Terex Haul Truck would have protected.Zeigler from injury and
prevented his death had it been used by him.
26. On December 22, 2003,,MSHA investigators Eugene Hennen, Walter
Turner and Harold Wilkes performed two.sets of tests on the Terex Haul Truck
before the wiring harness was replaced on the Terex Haul Truck.
27. On December 23, 2003, MSHA investigator Hennen performed a set
of tests on the Terex Haul Truck before and after the wiring harness was replaced
on the Terex Haul Truck.
28. During the course of the MSHA investigation, on December 23, 2003,
MSHA investigator Hennen conducted tests to deteD:nin.e if the repair of the
wiring harness before the ;iccident resulted in shortened wires that pulled loose
when the truck articulated. These tests were inconclusive.
29. On December 23, 2003, during the course of the investigation and
after the wiring harness was repaired, MSHA investigator Hennen took connectors
plus wires that were left over from the tractor side of the wiring harness to his
hotel. With no representatives from ESG present, Hennen performed destructive
testing on the connectors and wires. On December 24, 2003, Hennen returned the
connectors to ESG.
30. In the course of its investigation, MSHA investigator Hennen sent
requests for information to the manufacturer of the haul truck, Terex, on January
14, 15 and 16, 2004. Terex responded to these requests on January 22, 2004.
31 . The final MSHA Report of Investigation indicated that MSHA could
not det:em:rine when the wires on the tractor side of the Terex Haul Truck were
cut.

I.

Citation No. 6093107 (Violation of Section S6.14100(c), supra)
A. The Secretarv's Case

28 FMSHRC 634

1. Derrell Sanders
Derrell Sanders worked on the same shift as Donnie Zeigler, and operated the ·same
model Terex dwnp truck as the one issue operated by Zeigler. According to Sanders, he drove
the truck one day during the period that Zeigler had been suspended from December 15, through
December 17. Sanders indicated that when he operated the lever in the ~k which controls the
position of the bed, " . . . you tried t() power it down. It would never go down. You got to keep
clicking it back and forth in order for it to go down. [sic] (Tr. 27). Aecording to Sanders, on
December 20, once he saw that the truck bed on Zeigler:'s truck was down and Ziegler was
pinned under it, he jumped in the cab of the truck. Sanders testified that "... (t]he lever was in
the hold position. And I pulled it back to get it off." (Tr. 33).

in

2. Eric Hilyer and Jack Barnes
Eric Hilyer, a maintenance mechanic employed by Elmore, was responsible for repairing
the wire harness that electronically connects the cab unit (cab) and the dwnp bed.. According to
Hilyer, if the harness is damaged, it is his normal procedure to strip the outer layer of installation
and each individual wire that has been broken, and then-reconnect the ends of any exposed wites.
The reconnected wires are each placed in a separate butt splicer, and crimped to make a secure
connection.

On December 13, the dwnp bed had overturned. According to Hilyer, the wires were
"mashe'' (Tr. 84). He repaired all eleven wires within the harness by way of butt splicing.
According to Hilyer, he worked on the truck on December 15, because the body was not ·
going up, and a fuse had blown. He indicated that when he put in a second fuse, ·~it blew". (Tr.
149). He then started to look for electrical problems" ... and fo\Uld the wiring harness
pinched" Id.
Jack Barnes, a mechanic to whom Hilyer reports, testified that on-December 18, "first
thing" in the morning after Ziegler inspected the truck (Tr. 210),' the latter·brought him (Barnes)
the harness and" ... about three or four wires ... had mashed." [sic] (Tr. 212). Although·not
all of the wires were damaged, Barnes repaired six of the wires, and the remainder was repaired
by Hilyer. All damaged wires were repaired·with butt connectors.
According to Hilyer, after the accident at issue, the harness that ran from the cab to the
dump bed was examined. The end that was connected to the cab appeared to have been severed,
and the end attached to the dwnp bed ended in butt connectors. A piece of the harness, of
indeterminate length, was missing between the severed portion of the harness connected to the
cab, and the butt co~ectors at the end of the harness connected to the dwnp bed.

2

Control joystick (joystick)

28 FMSHRC 635

According to Hilyer, he performed various tests relating to the operation of the joystick
and the dump bed. On December 22 and 23, tests were conducted while ·the harness was
unconnected. fu addition, on December 23, tests were performed after the harness had been
repaired and reconnected. On one test when he raised the dump bed to the fully upright position
and released the joystick, the dump bed held. On another' test ·~t drifted down." (Tr. 114). ·
When he was directed to lower the dump bed, it did.not "come down." (Tr. 115). He then
placed the joystick in the float position,.and the dump bed did not come down. ·Hilyer raised the
dump bed again, and the dump bed "didn't go up or didn't come down." (Tr. 115). He testified
further as follows: "We went back to the bold position and it held again. Had to go back and
forth between down and hold, down and Ji.old, to make the body move. [sic] And then it sta.lted
coming down. At one tinie it held; the Iiext time it didn't hold." Id.
3. Mark Mont1:omery
Mark Montgomery testified.that in bis cap~ity as Elmore's S_afety Director, every day at
the end ofthe shift, he revi~ws all vehicle inspection reports~ Accoi:ding to Montgom~ry, Elmore
requires its employees to complete pre-shift vehicle reports at the start of the workday, and postshift reports at the end of the workday. On December 20, the pre-shift vehicle inspection report.
for December 20, was not located. A ~lank vehicle inspection report was found in Zeigler's
.·
truck.
4. Eu1:ene Hennen
According to Hennen, he inspected the severed harness subsequent to the accident, but
prior to its replacement. He indicated that .h e could not determine how .the harness had been
severed. He agreed that he did not believe this condition " . . . existed at-the ~e ofthe
accident." (Tr. 443).
On December 22, before the severed harness had been replaced, Hennen asked Hilyer,
who was then in the cab, to perform various tests with the joystick. He indicated tha~ when the
truck bed was raised and he told Hilyer to " . . . let loose ofthe joystick" ... . and ~e. latter
complied,." . . . the bed would come down.." (Tr. 249). Hennen was asked to descnoe what .
occurred when be requested Hilyer to " ... raise the bed up points in between the frame of the
dump bed unit and its maximum height." He answered as follows: "Well, when he would take.it
all the way up, it would stay there. And he would have to power it to start it down before it
would come down. When he would start powering it down and let loose of the control, it would
come all the way to the frame." Id.

Later on that day, Hennen asked Hilyer to raise the bed all the way and put the joystick in
the hold position.. According to Hennen, the bed appeared to go all ofthe way up. He indicated .
that the bed came down and " ... that was the first time that the bed had came down from the
totally up position."[sic] (Tr. 253). Hennen said he repeated the test,"... we waited at least a
minute", and the bed stayed up. Id. He further testified that he then tested"... to start the bed

28 FMSURC 636

down. And it came all the way to th~ fraine." (Tr. 253). Hennen indicated that on December 22,
when he tested the joystick in the hold ·position the bed came down " ... one out of three times...."
(Tr. 429). According to his ·t estimony the bed " . . . came down twice·:.. [f]rom all the way up"
(emphasis added) (Tr. 464), and it came down two other times when the bed was not in a fully
raised position.
·
Hennen testified that on December 23, in the presence of the representative of the
manufacturer of the Terex truck at issue, he repeated the same tests that had been performed the
previous day. He indicated that, in the hold position, " . . . the bed would not hold when you
would let loose the control when you are raising or lowering the bed." (Tr. 257). He also
indicated that in testing on December 23, the bed came down when the joystick was in the float
position. When he repeated the test the bed initially stayed up, but it started to come down after
thirty-five seconds. Hennen repeated the test again, and the ·bed stayed up. He asked the Terex
representative to explain why that happened "[a]nd he told me that it was because . . . the wire to
the warning light was broke because all the wires were severed. And that would cause it to do
that." [sic] (Tr. 259).
On December 23, after Hilyer repaired and reconnected the wiring harness, Hennen had
him then repeat the same tests, with the exception of putting the joystick in the float position.
According to Hennen, the bed was raised and put in the hold position. He indicated that this test
was performed "several times" and"... it would hold every time." (Tr. 266).
According to Hennen, in essence, the operation of the hydraulic system that raises and
lowers the truck bed is controlled by a joystick, located iri the cab. When the joystick is placed in
the up or down position, respectively, an electrical connection is made between the control stick
and.a hydraulic valve located in the cab, which in turri, hydraulicaliy raises or towers the dump
bed. When the· truck bed is in a raised position, electricity is transmitted through a wire in the ·
harness that extends from the dump bed to the cab and activates a warning light located in the
cab. If the bed is lowered, it makes contact with a proximity switch located on the frame of the
bed. As a result, the electrical circuit to the warning light is broken, and the light is turned off.
Hennen opined that when the bed is raised and the joystick is release~ if there is a break
in either of the wires that electrically connect the warning light in the cab and the proximity
switch on the dump bed, then the system will remain in the float position, even if the joystick is
in the hold position. Hennen opined that this is what caused the bed to come down at the time of
the accident.
·
·
On January 12, 2004, the Secretary issued a citation to Elmore alleging a·violation of 30
C.F.R. § 56.14100(c). Section 8 of the citation alleges iri the "condition or practice" the
following:
A fatal accident occurred at this operation on December 20, 2003,
when t:rUck driver was pinned between the frame of the D:uck and

a

28 FMSHRC 637

the dump bed of a Terex T A25 haul truck. The wiring har.Q.ess
from .the tractor to the dump bed trailer was damaged causing a · ·
short in the electrical syStem that prevented the dump bed control
switch from working properly. Due to .the electrical short when the
control lever was released after raising the bed, the hydraulic
control valve would not return to the hold position allowing the
bed to come down.

B. Discussion
Section 56.14100(c ), supra, provides as follows:
When defects make continued operation hazardous to persons, the
defective items including self-propelled mobile equipment shall be
taken out of service and placed in a designated area posted for that
purpose, or a tag or other effective method of marking the
.
defective items shall be used to prohibit further use until the
defects are corrected.
. .

.

Thus, to establish a violation herein, the Secretary must establish (1) the existence of a
defect, that (2) makes a .continued operation hazardous to persons, and (3) that the defective
items be taken out of service.

1. The -existence of a defect .·
The Secretary asserts that the truck was defective .. . . . in that before the accident, the ·.
wiring harness came loose thereby creating an open circuit that disabled the joystick, the bodyup switch and the warning light." (emphasis added) (Proposed Finding ofFact and Memorandum
of Law, at 32).

a. Whether the wirln& harness "came loose" before the accident
. i. evidence relied on by the Secretary

In support of its position that the harness had come loose prior to the accident, the
Secretary relies on the testimony of Hilyer and Barnes, that on December 13, and December 18,
they repaired damaged wires within the harness. They indicated that on each occasion the wires
were reconnected by placing them in butt connectors, which.were then crimped.. The Secretary
also relies on an MSHA taped interview of Jonas Hall on December 23, 2003,3 wherein the latter
indicated that he operated the truck in question during Ziegler's absence on December 13,.15, 16

3

This taped interview was transcribed by the parties after the hearing and offered as a Joint
Exhibit (JX 4), and is admitted into the record.
28 FMSHRC 638

and 17, and the bed turned over. Hall stated that he noticed that the wires runriing from the bed
to the cab " . . . had came loose."[sic] (JX 4; at 2). On another occasion when the truck had
turned over, he noticed that these wires had come loose, and they were subsequently repaired.
According to Hall, when he operated the tiuck, he noted that the wires were loose and
that the". ·.. little light wouldn't come on the truck.'' ·(JX 4, at 9). Hall also indicated that the
truck bed was slow coming down. ·

In addition, the Secretary refers to an MSHA taped interview of Tommy Finley on
December 23, 2003, in which the latter indicated that on December 20, he was working on the
same site as Zeigler and that "[h]e had said something that morning about the wiring on the
truck. He had said the wiring was messed up and (inaudible) fix it.'' [sic] (JX 3, at 1)4. In the
same fashion, MSHA Inspector, Harold Wilkes' gen_eral field notes, dated December 23, 2003,
relating to an interview of Ennatt Anthony Findley; state as follows: "Zeigler told me something
was wrong with the wiring and someone was due today to make repairs." (R-10, at 6)5 ·
ii. discussion
The record is clear·that, after the accident, the harness was not intact; the end that was
connected to the cab appeared to have been severed; the end attached to the_dwn.j)'bed.ended in ·
butt connectors; and a piece of the harness of indeterminate length was missing between the ·
severed end, and ·the butt coilnectors: Also, on two occasions within a week pripr to the accident,
the harness wires had become damaged, a:nd.hadto be stripped and reconnected. However, the
record does not contain any evidence that these repairs were not done according fo accepted· . ·
standards, that the butt connectors were not properly crimped, ot that the reconnected ends were
not secure.6 Further, there was not any evidence adduced that, on December 18, when the last
repairs were performed, any of the previous connections had come loose. The only evidence of
damage to the harness subseguent to the repairs on D~ember 18, consists of an unswom
statement by Findley that on December 20, Zeigler told him the·wiring was "messed up". (JX 3,
at 1). Not much weight is placed upon the statement inasmuch as it is not clear as to what ·

4

Subsequent to the hearing, the tape of the interview was transcribed and offered by the parties as
a Joint Exhibit (JX 3) and is admitted into the record.

5

In the Secretary's Memoranda of Law, the Secretary cites this statement as exhibit P-5, at 6.
However, exhibit P-5, which is the same as exlnoit R-10, was not admitted at the trial.

6

1 ta.Ice cognizance of Hall's recorded statement that, when he operated the truck on December 13,
15, 16, and 17, wires running from the bed to the cab "had came loose" [sic] (JX 4, at 2). and
that "wires were loose... and the little light wouldn't come on in the truck." (JX 4, at 9)..
However, he was not called to testify, and he did not specify the wires he was referring to.
Further, there is not any evidence that all the loose wires" in the harness that had existed on
December 18, were not repaired, reconnected, and secured on that date.
28 FMSHRC 639

specific wiring Zeigler was referring to. Also, it is significant to note that the Secretary did not
call Findley as a witness, which would have allowed also for cross-examination. Further, I note
that Sanders was _the only miner to testify who had a conversation with Zeigler on December 20.
Sanders did not indicate either in his testimony or in statements that he gave to the police, and
MSHA Investigators that Zeigler had said anything to him about the wiring in_the harness being
"messed up." Also, it is significant to note that Ziegler did not report any probl~ with the
truck on his inspection reports for December 18 and 19. In this connection, it was stipulated to
by the parties that "[a]t the conclusion of his shift on December 19, 2003, Zeigler specifically
told Mark Montgomery that the Terex Hall Truck was running fine." (Jt. Statement, para. I 1).
Importantly, it also was agreed to by the parties that "[b]etween December 18, 2003 and the time
Ziegler told Sanders that he was going to check his brakes on the mornill.g of December 20, 2003,
Ziegler did not-report any problems with the Terex Haul Truck". Id.
·
· Moreover, although the condition of the harness was noticed to have been not intact after
the accident on December 20, it is significant to note that Sanders, who was the first person to
arrive at the truck immediately after the accident was asked as follows in a MSHA taped
interview only three days after the accident: '"Whenever you all were at the accident scene, .. .
did you notice though, there's a set of wires that runs from the back to the front, ... that .. .
had been either ripped or tom into.or . . . . " (JX 2, at 9)7. .He answered as follows . ·~verything
was connected good." Id. This statement was not contradicted by any other witness. Indeed, no
other witness testified based on personal .observation as to the condition of the harness wires
immediately after the accident. In this connection, the parties stipulated that MSHA coUid not
detennine when the wires on the tractor side of the Tfil-e~ Haul Truck were cut. Sin;rilarly, as .
stipulated by the parties,.test results were "inconclusive" regarding whether" .~. repair of th~
wiring harness before the accident result~ in shortened wires that pulled loose when the truck
articulated ...." (Jt. Statement, para. 28).
For all the above reasons, I conclude that .t he Secretary failed to establish, by a
preponderance of the evidence that the harness wires·had come loose prior to ·the accident on
December, 20.

7

The taped interview was transcribed by the parties after the hearing and offered as a joint exhibit
(JX 2). and is admitted into the record.
28 FMSHRC 640

b. Whether loose wirin& disabled the joystick, the body- up switch,
and the wamin& li&ht prior to the accident.
Jn this connection, it appears to be the Secretary's argwnent that, in essence, the harness
had become loose prior to the accident, which resulted in the dis'abling of the joystick, the bodyup switch, and the warning light. Jn support of her argwnent, the Secretary relies on the

testimony of Hennen regarding the relationship between a severed harness wire, and the failure of
the dump bed to operate properly in·the hold position.
i. Heenen's testimony

In order to evaluate the weight to be accorded Hennen' s analysis, his testimony in this
regard relating to the truck's electrical system is set forth in its entirety as follows:
Q

A

You said it's an electrical - the joystick is an electrical component
of some kind.
Yes, the joystick is an electrical component. It sends a signal to the
solenoid valves on the hydraulic control valves to control it
through the power pressure it lets into it.
So to make it simple, to simplify; the body hydraulic joystick sends
an electrical signal into the hydraulic system to control the
·
hydraulic control valve.
ADMIN. ruDGE WEISB~RGER: The_signal that's sent to the
hydraulic s~tem, is that what makes the bed, dump 'bed, go up and
down?

Q

A

Q
A

·
TIIB WITNESS: Yes.
ADMIN. JUDGE-WEISBERGER: That signal is sent through a
wire?
THE WITNESS: Yes.
ADMIN. JUDGE WEISBERGER: Is that wire in the harness in
question?
TIIE WITNESS: No, Your Honor.
ADMIN. JUDGE WEISBERGER: Mr. Rodriguez.
BY MR. RODRIGUEZ:
In response to the Judge's question, the Judge said if that signal in
the harness - how do you explain the electrical signal that we're
discussing for this body down circuit and the electrical signal you
just discussed about the hydraulic joystick? Is there a difference?
Could you repeat the question, please?
You described that there's a different electrical signal that goes
through the hydraulics.
·
Yes. One of the signals comes from pushiilg the joystick and the
other comes from this circuit that we're talking about. So this
28 FMSHRC 641

Q
A

Q

A

Q
A

particular circuit, the one is related to our -- what we say was the
cause of the bed coming d()wn.
Are we moving to 12 and 13? Or where are we moving?
We're going to .g o back to the other page here in just a little .bit.
But there's one other thing that I wanted to point out. Also, H-2 -Is this on Page 1?
·
·.
One. Which is Item 14, which is the light inside of the cab of the
cab unit. This is the light that warns the operator that the bed when the bed is up.
But now we're talking when the bed is down so this light is out.
It's actually totally isolated from the electrical circuit in that both
the ground side of the light between B-12 and B-15 is
disconnected. So it doesn't have a ground.
And also up on K-35, Item 7, it's disconnected there also so that it
doesn't have power or ground. So it's totally isolated from the
circuit and it goes out when the body's down, indicating that the
body is down, so the.operator knows this.
Are we finished then with Page 1?
Yeah. We can go to Page 7. On Page ~' I made an X. This is to
indicate what happens when there is a broken Wire.
ADMIN. JUDGE WEISBERGER: Is that X -- .
THE WITNESS: It's on Item 3, on Page 2, wire RO.
ADMJN. JUDGE WEISBERGER.: Okay.
THE WlTNESS: The broken wire migh~ be there, or it could be in
6. It would be the same thing as what I'm referring to. rm not
saying th.at it was in this exact place, but we're alleging that it was
someplace in the wiring harness where it was damaged at, was the
broken wire. So with this wire broken ADMIN. JUDGE WEISBERGER: With "this," you mean either 3
or6?
THE Wl1NESS: Yeah, either 3 or 6. If either one wires is broken
-- normally when you raise the bed, this circuit closes. So when
you raise the bed - now the circuit I'm talking about S-22, which is
called the - in the -- as it's called on this exhibit, it's called the
body up switch. It would normally close. And it does even if the
wire's broken.
But with the wire broken, it is the:same as the switch being closed.
It acts the same.as a switch. . So normally when the body goes up,
this switch closes, and then it reverses everything that we just went
through.
.
I don't think we need to go through a step-by-step again, but we can
just go over to Page 1 and summarize what that means.
Everything's reversed,. so we go down to K-36. So at that point, K28 FMSHRC 642

Q
A

Q

A

Q
A

36, everything reverses there.
This is a double-pole relay. And now B-12 is connected to B-15.
Since everything's reversed, there's now power coming to H-2,
which is Item 15. It's grounded at K-36, and it has power coming
through at K-35. So the light comes on. This is normally when
··
you raise the bed.
And then the B-12 -- as I said, B-12 is connected to B-15, which
has a ground for·the light. But B-12, US-13 are disconnected.
Then the float -- at that point, the float no longer works. The float
that this part of the signal that sends, that goes into the electrical
circuit and causes the float to operate is no lOilger grounded. So it's
not sending any signal. So now the float is no longer operational.
But if we go back to Page 2. If the wire is broken -ADMlN. JUDGE WEISBERGER: That's either 3 or 6?
THE WITNESS: Yeah, either 3 or 6. If that wire's broken, it's the
same as when the circuit was open because the body was down. So
as you raise the bed, the float is still open.
When you let loose of the joystick and it goes into the hold
position, this float is still energized because of the broken wire, and
that causes the bed·to come down. When you let loose of the
joystick and let it go back into the hold position, it doesn't read·the
hold position because this circuit has kept the control, the hydraulic
control, in the float position.
·
So that's what we allege was the reason that the bed came down at
the time of the accident.
·
·
ADMJN. JUDGE WEISBERGER: Thank you.
BY MR. RODRIGUEZ:
So connect this then, this body down circuit that we discussed to
the mended Citation. We're now talking about an open circuit.
· Yes. The open circuit is the broken wire, either RO, Item-3, or PG,
Item 6. That is the open circuit. Which because of that open
· circuit, it would remai:D. into the float position even when you
released the control and let it go back to the hold position.
Reading from the Citation, it says, "As a result of the amended, the
result of the open circuit, it concludes the.hydraulic control valve
would not return to the hold position, allowing·the bed to .come
down."
How do you explain that in light ofP-18?
Well, the Citation says that when the control went into the hold .
positionIt says, "The.hydraulic control valve would not return to the hold
position, allowing the bed to come down."
·
Yes, well, it wouldn't allow the hy~aulic control itself to go into

28 FMSHRC 643

Q
A

Q
A

Q
A

Q

A

the hold position. The joystick was in the hold position, but the
hydraulic control valve itself would not go into the hold position.
I want you to look at Exhibit P-13, Page 7.
Okay.
Look at the second note from the bottom of that page. It starts
with, "If the body warning light. .. " See that?
Yeah.
Take a moment to look at it, and then rn ask you a question.
.Okay.
How do you connect the representation made in that note with this
body down- note in P-13, Page_7. With the body down circuit
and the Citation, the body down circuit in P-18.
How do you connect all of that?
This says that if the light goes out to -- if the light goes out, then
the body control valve will automatically float to - or will default
to the D-10 float Which is what we said happens, when the wire
breaks, the light.g oes out. (Tr. 318-326)

I find Hennen's testimony to be confusing and lacking in clarity. I thus find it lacking in
probative value.
ii. Heenen's theory, assumptions. and.tests
Hennen agreed on cross-examination that his theory of this case is as follows:"... the
wiring harness, and specifically the pro~ty switch wire, was severed, was disconnected,
causing the dump bed to not operate properly when the joystick was in the hold position." (Tr.
361 ). He indicated that his theory is based upon the following assumptions: 1) that the harness
was disconnected at the time of the accident, and 2) that the joystick was in the hold position.
Hennen also relied on results of tests relating to the operation of the control stick and the dump
bed. 8
·
The·.bamess was disco9nected at the time of the
accident
·
As discussed above, (I(B)(l)(a) infra), the record fails to establish that the harness wires
had come loose nrior to the accident. Accordingly, I find that there is not any evidentiary support
for one of the two assumptions made by Hennen.

8

Hennen testified that another assumption that he made supporting his theory was that the
blinking headlights on Ziegler's truck a day or two before the accident indicate the harness
wiring was damaged before the accident. This assumption is not addressed in the decision since
the Secretary abandoned this theory during the trial.
28 FMSHRC 644

The joystick in the hold position at the time of the
accident
In support ofHennen' s assumption that the stick was in the hold position at the time of
the accident, the Secretary relies ori the testimony of Sanders, the first person·to enter the cab
immediately after the accident. According to Sanders, when he entered the cab he·used the
joystick to raise the bed and it wa8 in the "hold" position. (Tr. 33, 51). However, the weight to
be accorded Sanders' testimony with regard to his observation of the joystick immediately·after ·
the accident, is diluted by his admission on cross-examination that when he saw Zeigler or some
part of his body under the truck bed, it was "a very traumatic moment" for him. (Tr. 48). Also
Sanders agreed that when he jumped in ·Ziegler's cab ''the only thing that was on [his] mind .. .
was just get the bed started up."[sic] (Tr. 48-49). Importantly, when asked" . . . you weren't
really paying attention what position . . . ·the joystick was in; were you?" ·He answered; "Right".
(Tr. 49). ·
Further, I note that Sanders' testimony at the trial was adduced almost two years after the
accident. In contrast, on the day of the accident he signed a statement that when he got irito the
cab and " ... let up his bed the dwnp lever was not all the way down I pulled it down . . . ." [sic]
(Ex. P-28, at 2) Additionally, in a taped interview with a MSHA Investigator the day after the
accident, Sanders indicated that when he got in the cab the dump switch was not in the float ·
position " ... It was in the neutralposition. It wasn' fup, it wasn't back but it was right there·in
the middle." (IX 2, at 3). To further obfuscate matters, Sanders responded in the affirmative in.
response to a leading question from the Secretary' s attorney as to whether.he ever usechhe term .
the "hold" position as being the same as the ''neutral" position; .
Further, Sanders testified as follows with regard to the various positions of the joystick,
as indicated on Exhibit P-9, and their function: " ... on the very top, that's showing to raise the
bed, the middle one is suppose to be float-no, power down. And the third one is suppose to be
float. And the last one is suppose to be powered down." (Tr. 37). Jn.contrast the·uncontested
facts indicate, as stipulated to by the parties, that the joystick " ... has four positions, in
descending order from the top: Float, Lower, Hold and Raise." (Ex. P-9, Ex. P-13, at 7, and Jt.
Statement, para. 23). In the same fashion, Sanders testified that in- either- powering up or
powering down, if he would let go of the joystick it would go into the float position. {Tr. 41 ). In
contrast, the parties stipulated·that if the joystick is released from the "lower'' and "raise"
positions it will "spring back to, and remain in, the Hold position .... " (Jt. Statement, para. 23).
Therefore, for all of the above reasons, I assign ver:y little probative weight to the
testimony of Sanders regarding the position of the joystick immediately after the accident. Thus,
I find that the evidence adduced by the Secretary, consisting solely of the testimony of Sanders, is
not sufficiently clear to establish, by a preponderance of evidence, that immediately prior to the
accident, the joysti~k was in the hold position. Thus, it is concluded that the record does not
establish the existence of one of the two assumptions made by Heenen.9
·

9

The significance of this assumption to Hennen' s theoiy is indicated by his testimony that he
considered it as "conclusive" support for his theor:y, in connection with the fact that the bed did
28 FMSHRC 645

Hennen's tests
fu general, the Secretary asserts that in the testing performed on December 23, when the
harness·was still disconnected, the bed came down in the following situations: when the joystick
was released to the hold position, when.the bed was powered down, when the bed was powe~ed
up, but before it was fully raised, and when the bed was fully raised. The Secretary alleges that
in the latter test, the bed came down twice. However, for .t he reasons set forth below, I find that
the weight ofthe evidences regarding the particulars of the testing does not support these
assertions.
Hilyer's testimony
According to Heenen, in testing on December 22 and 23, he instructed Hilyer to operate
the truck and place the joystick in various positions. 10 Hilyer indicated that lie recalled that when
the bed was raised and the joystick was let go to spring back to the hold position, "On one test it
held right where it was at." [sic] (emphasis added) (Tr. 114). On another test when he let go of
the joystick and it sprang back to the hold positio~ the bed ~e d~wn.
However, further testimony regarding Hilyer' s recollection diminishes the weight to be
accorded his testimony. He was asked whe1;her " . . .. the dump bed it went up an~ it went.down"
[sic] on December 22, when only Hennen was present He answered "I . . . Yes." (Tr. !'08).
However, Hilyer was next asked what he remembered, and he answered as follows: "Well, .
I don't remember exactly what the dw:n,p body done at that time." [sic] (emphasis added) (Tr.
108-109). Further, when he was asked whether he raised the d~p, bed after the haqiess .had
been repaired and reconnected, he indicated as follows:"... we did a lot of tests on that thing.at
that time. And I don't remember everytest.,y.re <lone or exactly when I done it or how I.done it.
But ldon't remember that part. I don't remember if we did itthen or not." [sic] ..(Tr. 102). .
Additionally, Hilyer' s following testimony further evidences a lack of reliability
regarding his memory of various tests:

Q Did you raise the body all the way up, part way up?
A I don't remember exactly at what time. I done exactly what the inspectors ·
told me to do. If they told me to stop it halfway, I did. If they told me to raise it
all the way up, I did. So I don't exactly remember that particular test at that
particular time where we stopped the body at, if it was all the way up, in the
middle, or where.
Q But when you raised the dump bed - and the.inspector told you to raise the

not come down when the joystick was put in the hol~ position on December 23, after the harness
was reconnected.
°Two sets of t~ts were conducted on December 22, befor~ the harness was replaced. On
December 23, a set of tests was performed before and after the harness was replaced.
1

28 FMSHRC 646

dunip bed, I just heard you say -- did the dump bed hold after this splice was -- the
truck and the trailer.were reconnected? Did it stay up?
A I can't remember.
Q Let me ask you this. Is your habit to, when you raise the dump bed, to
release the Joystick?
A When you raise it?
Q Uh-huh (affirmative).
A If you release it, it stops.
Q Okay.
A It goes back to·the ho id mode automatically.
Q Okay. So before the repair-was made arid you raised the dump bed and you
released it, did the dump bed hold? ·
A Raising it up?
Q Uh-huh (affirmative).
A I c~'t -- if! answer these -- ifI answer that yes, I can't be a hundred percent
sure. This has been two years ago. And we done a lot of tests in·thosetbree days,
and I don't remember exactly what we done on each test during those three
days." (Tr. 103-105)
inconsistencies in the record
Moreover~ the balance of the record contains a number of significant inconsistencies ·.
which further diminish the weight to be accorded the tests. Accordiilg-to Hennen, the first series
of tests on December 22, indicated a defect that he described as follows:" ... when you letloose ·
of the joystick control while the bed was in the raised position the bed would·not hold as it
should. The joystick would remain in the hold position, but the bed would.come down."
(emphasis added) (Tr. 248). However, on cross-examination he agreed that on December 22, in
the testing in the hold position before the inspectors arrived the dump bed "had never came
down." [sic] (Tr. 432).

Hennen testified, in essence, that he repeated the first tests·to show MSHA Ii:ispectors,
Walter Turner, and Harold Wilkes, the defect that he observ"ed when the joystick was in the-hold
position. He said the bed "appeared to go all the way up ... [and then] came down without me
giving any other directions." (Tr. 252). In contrast, in a draft of a report prepared by Hennen,
entitled EQUIPMENT RELATED PHYSICAL FACTORS FOR A FATAL ACmENT AT .
SCOTT PITT AT "ELMORE SANP & GRAVEL. INC.• he indicated as follows: ''The truck
manufacturer was contacted to determine why the bed did not stay in the fully upright position
when the control was in the float position during the first test conducted after the accident; but ·
stayed in place in all of the subsequent identical tests." (emphasis added) (Ex. P-12, at 4)

28 FMSHRC 647

Moreover, contemporaneous notes taken by Turner and Wilk.es, do not appear to be
consistent with Heenen's testimony regarding the position the joystick in. tests conducted in
their presence. Turner's notes contain the following entry: "ON ONE ATTEMT THE BED
LOWERED ON ITS ON-FLOAT POSITION THE SECOND AND TH1RD ATTEMT IT
STAYED." [sic] (emphasis added) (Ex. P-4, at 4) To add to the confusion, Turner did not
observe the tests, but wrote what Heenen told him. On direct-examination, he was asked to state
Hennen' s exact words to him and he testified as follows: "To the best.of my recollection,.he said,
•1t bypassed the hold position and went into the float position'." (Tr. 479). He was then asked to
what he meant in his notes, and he testified as follows: "That's whenever Eric had._raised the bed
and the bed come down, [sicJand he said.it's bypassing the -h old position going .into the float
position...." (Tr. 4 78). In contrast, contemporaneous notes.t_a ken by Wilk.es, who wrote what
Turner told him, contain the following entry: ..When truck bed was lowered in the float position
it took 55 seconds to lower." .[sic] (emphasis added) (Ex. P-5, at 4). Turner's notes contain the
following statement relating to the second attempt to lower the bed: 'Tu. the float position it did
not lower its self," [sic] (emphasis.added) Id. -Lastly, Wilkes wrote as follows relating to the
third attempt to lower the.bed: "It did not lower its self [sic], the lever was then_pJaced in the
lower position for a moment then placed in the float position. It did not lower its self." [sic]
(emphasis added) Id.

of

Hennen supervised a third s~es of tests on December 23. According to Hilyer's direct
testimony,"... the bed would not hold when you would let loose the control when you were
raising or lowering the bed." (Tr. 257). Hennen's contemporaneous notes for December 23, state
as follows: "[h]old position on machine bed lift would not hold."(Ex. P-6, at 5) However, on .
cross-examination he indicated that on December 23, in testing before the harness was repaired,
the bed did not come down when the con,trol stick was in the hold position; it came down when it
was in the float position. (Tr. 428-429).
discussion
Due to the various inconsistencies in the record, I place considerable weight on Heenen's
clear admissions on cross-examination, that in the approximate.12 tests that he conducted, the
bed came down only once when the joystick was in the hold position. (Tr. 411-412, 425-426).
It's significant to note that subsequent re-direct-examUiation did not elicit any further testimony
from Heenen concerning the number of times the bed came down with the joystick in the hold
position. I thus.find that the preponderance of the evidence fails to establish that the bed came
down more than once when the joystick was in the-hold position. I thus find that the testS are .
insufficient to support Heenen's opinion that a break in the harness causes the bed to come down
when the joystick is in-the hold position.
Moreover, it is critical to Hennen's theory that in testing on December 23, after the
harness had been repaired and replaced, the bed did not come down in the three times it was
tested when the bed was fully raised and the joystick was put into the hold position. However,
conflicting testimony adduced by Elmore diminishes the probative value of these results. I note
that Billy Stanley, Elmore's President testified that, approximately four to five months after the
28 FMSHRC 648

accident, he unplugged the harness _w iring and instructed Hilyer to raise the bed " ... all the way
up." (Tr. 570). According to Stanley, he observed Hilyer take his hand off the joystick, which
put it in the hold position, and the bed did not come down. He indicated that he did this test"...
10, 15 times over a period of time...." (Tr. 572). In addition, he had Hilyer raise the bed all the
way, release the joystick, and " slam'.' on the brakes. Id. Stanley indicated that the bed did not
comedown.
·

In addition, Stanley instructed Hilyer to put the joystick in the flo~t position and raise the
bed all the way up, and it did not come down. He then had Hilyer drive forward approximately
fifty feet and the bed came down. It is significant to note that Stanley's testimony was not
impeached or contradicted. I thus find that Elmore's evidence diminishes the weight tc:> be
accorded Heenen 's tests on December 23, ~er the harness had been reconnected.
Accordingly, for all of the above reasons, I find that the S~cretary has failed to meet its
burden of proof of establishing that, _prior to the accident, the h~ess wire running between the
dump bed and the truck had become loose, and would have caused the truck bed to come down
after it was raised and the joystick placed in the hold position. · I thus fi.lld that the Secretary has
failed to establish, that prior to the accident, a defect existed that made continued operation.of the
truck at issue, hazardous to persons. Accordingly, I find that the Secretary has not established a
violation under Section 56.14100(c), supra. Therefore it is Ordered that Citation No. 6093107
be DISMISSED.

U.

Citation No. 6093106 <Violation of 30 C.F.R. § S6.14211(c})

On January 12,·2004, the SecretMy issued a c.itatjon to Elmore alleging the follo~ing
condition constituted a violation of Section.56,1421 l(c)~ supra:. "A fatal accident riccurred at this
operation on December 20; 2003, when a truck driver was pinned between the frame of the truck
and the dump bed of a Terex TA-25 Haul Truck. The truck driver was on the frame of the truck
with the bed in a raised position when the bed of the truck unexpectedly lowered. The safety bar
had not been utilized to prevent the bed from lowering."
Section 56.1421 l(c), supra, requires, as pertinent, that ''[a] raised component ... be
secured to prevent accidental lowering when persons are working on or around mobile equipment
an are exposed to the hazard of accidental lowering of the component."
The record clearly establishes that the Terex truck at issue was mobile equipmen~ with a
raised component i.e. the dump bed. Also, the record indicates that, just prior to the accident at
issue, Ziegler told Sanders that he was .going to check his brakes. Ziegler than pulled his truck
forward and Sanders observed him getting out of the cab. The dump_bed started to come down
and Ziegler was found pinned under the dump bed, positioned near the brake cylinder. Within
the above framework, and given the absence of any evidence to. the contrary, it may re~onably
be inferred that Ziegler exited the truck intending to check the brakes, and became exposed to the
hazard of the dump bed lowering. I thus find that it has been established that Ziegler was
working on or around the truck, and was exposed to the hazard of accidental lowering.

28 FMSHRC 649

The sole issue remaiiling for resolution is whether the raised truck bed was "secured,, as
provided in Section 56.1421 l(c), supra. The parties stipulated that the safety prop on the truck
was tested and it " ... prevented the free and uncontrolled descent of the dump bed by stopping it
from coming down, [and] MSHA investigators concluded that ... [it] ... would have protected
Ziegler from injury and prevented his death had it been used by him." (emphasis added) (Jt.
Statement, para. 25). Based on these stipulations and the fact that the truck bed did come down, I
find that the prop was not used by Ziegler when the bed was in a raised position. Accordingly, I
conclude that the bed was not "secured", as use of the prop would have stopped the bed from
coming down.
·I t is Elmore's position, as a defense, that Section 56.1421 l(c), fil!Jmb alone. is not

controlling, but that it must be read "conjunctively'' with subsection'(d) (30 C.F.R. § 1421 l(d)),
which provides that "(u]nder this section a raised component ofmobile equipment is considered
to be blocked or mechanically secured if provided with a functional load-locking device or a
device which prevents free and uncontrolled descent.,, Elmore asserts that subsection(d), gm,
only requires that mobile equipment be provided with a device which prevents free and · ··
uncontrolled descent. As such, it is argued by Elmore that subsection(d), ~ does not require
the actual use of the device.
I find that the limited construction urged by Elm.ore fails to achieve the protection
explicitly required by the clear language of Section 56.14211(c) i.e., the securing of araised
component to prevent accidental lowering. Further, I note that the regulatory history of Section
56.1421 l (d), supra. clearly evidences·an intent that any device preventing free descent must be
used to comply with the requirement of Section 56.14211 (c), supra. In this connection, I note the
Discussion and Swnmaiy ofthe·Final Rule. set forth in the preamble to Subpart M, 30 C.F.R.,
states as follows with regard to a discussion of Section 56.1421 l(d), fil!lmh: " .. . '[t]he final
standard also pennits use of any other device that prevents free and uncontrolled descent, should
there be a sudden failure of the system that is holding up the raised component.,, (emphasis
added) 53 Fed. Reg. 32,516 (1988). I thus find that to achieve the-explicit protection required in
Section 56.1421l(c), ~a safety prop must be used; it is insufficient if a truck is merely
provided with a device.

Therefore, for all of the above reasons, I find that the Secretary has established. that · ·
Elmore violated Section 56.1421 l(c).
Penalty

The parties stipulated that the imposition of a penalty will not effect Elmore' s ability to
remain in business. The parties also stipulated as follows ''MSHA.appropriately considered the
statutory factors regarding history, operator size, gravity and good faith abatement regarding the
proposed penalty and ESG does not contest the size of the proposed. penalties assessed against
ESG." (Jt. Stip. para. 10) In this connection, the record established that the gravity of the
violation was relatively high inasmuch as a fatality resulted. However, I find that a significant
28 FMSHRC 650

mitigating factor regarding the level of the company' s negligence is the stipulation by the parties
that••... Ziegler had been trained by ESG to never get under the raised dump bed on the Terex
Haul Truck he operated without first employing the safety prop." (Jt. Statement, para. 3).
Although Ziegler' s negligence in failing to use the safety prop may be imputed to the company,
there is not any evidence that Elmore knew or reasonably should have known trult Ziegler was
not going to use the safety prop, or that Ziegler's failure to use the safety prop should reasonably
have been anticipated or expected by Elmore. Nor is there any evidence that Elmore was
negligent in failing to have properly trained or supervised Ziegler. For all the above reasons, I
conclude that the level of Elmore's negligence was low.
Taking into account all of the above.factors set forth in Section 1 lO(i) of the Act, I find
that a penalty of $350.00 is appropriate for this violation.

ORDER
It is.Ordered that Citation No. 6093107 be DISMISSED. It is further Ordered that,

within tlllrty days of this decision, Elmore pay a total civil penalty of $~50.00 for the violation of
Section 56.1421 l(c), found herein.

~

vram
isberger
Administrative Law Judge

·

Distribution: (Certified Mail)
Leslie John Rodriquez, Esq., Office of the Solicitor, U .S. Department of Labor, 61 Forsyth
Street, S.W ., Room 7T1 0, Atlanta, GA 30303
George W. Walker III, Esq., and J. David Martin, Esq., Copeland, Franco, Screws & Gill, P.A.,
444 South Perry Street, P .O. box 347, Montgomery, AL 36101-0347
/lp

28 FMSHRC 651

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W ., SUITE 9500
WASHINGTON, D.C. 20001

July 28, 2006
CIVILPENALTYPROCEEDING

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

Docket No. YORK 2005-111-M
A.C~ No. 07-00093-54165

v.
Tarburton Pit

PENNSY SUPPLY, INC.,
Respondent

DECISION
Appearances:

Keith E. Bell, Esq., U.S. Department of Labor, Arlington, Virginia; Brian
Y. Y esko, Conference and Litigation Repre5entative, Warrendale,
·
Pemisylvania, on behalf of the Petitioner;
Adele L. Abrams, Esq., Law Office of Adele L. Abrams, P.C., Beltsville,
Maryland, on behalf of the Respondent.

Before:

Judge Bulluck

This case is before me upon Petition for Assessment ofPenalty filed by the Secretary of
Labor, acting through her Mine Safety and Health Administration ('~SHA"), against Pennsy
Supply, Incorporated ("Pennsy''), pursuant to section 105(d) of the Federal Mine Safety and
Health Act of 1977 ("the Act"), 30 U.S.C. § 815(d). The Secretary seeks civil penalties in the
amount of$406.00 for two alleged violations ofher safety regulation found at 30 C.F.R.
§ 56.11001.
A hearing was held in Dover, Delaware. The parties' Post-hearing Briefs and Reply
Briefs are of record. For the reasons that follow, the citations shall be vacated.

I. Stipulations
The parties stipulated as·follows:
1. Pennsy Supply is owned and operated by Pennsy Supply, Incorporated;
2. Pennsy Supply, Incorporated, is subject to the jurisdiction of the Federal Mine Safety
and Health Act of 1977;

28 FMSHRC 652

3. The presiding Administrative Law Judge has jurisdiction over these proceedings;
4. The subject citatio~s were properly served by a duly authorized representative of the
Secretary of Labor upon an agent of the Respondent at the date , time, and place stated thereon,
and may be admitted into evidence for the purpose of establishing their issuance, and not ·for the.·
truthfulness or relevancy of any statements asserted therein;
· ·
5. The parties stipulate to the authenticity of their exhibits, but not to their relevance or
the truth of the matters asserted therein;
6 . .The total annual hours 'Yorked at Pennsy Supply, Incorporated, is approximately
24,437 hours per year;
·
7. The computer printout reflecting theRespondent's history of violations is an authentic
copy, and may be admitted as a business record of the Mine SafetY and Health Administration;
and
8. The imposition of the proposed civil penalties will not affect the Respondent Pennsy
Supply's ability to remain in business. · .

II. Factual Back&round
Pennsy is a division of Old Castle Materials Group. Tr. 89. On January 11,.2005; MSHA
Inspector Reecle Hom conducted his first inspection of Pennsy's Tarburton Pit, a seasonal sand
and gravel operation in Dover, Delaware; employing 15 to.18 employees. ·Tr. 42~ 110-11. The
plant was shut down for winter maintenance on the day of the inspection, and Tarburton's plant
manager, Richard Hickman, and its safety director, Dorothy Lehmann, were on site. 'fr. 12, 36,
157-58. When Hom coinmenced his inspection, he observed that the C2 stacker conveyor and
the Cl conveyor, situated above and feeding the stacker, did not have walkways ·or extended
fittings. 1 Tr. 10, 16, 24-26. No work was being performed on the equipment at the time of
Hom's inspection. Tr. 36. Based on his observations, Hom asked plant operator Thomas Avery,
who was perform~g maintenance duties nearby, how he greased the head pulleys of both
conveyors. Tr. 12, 26, 161-62. Avery told Hom that he greased them on average of every two
weeks. Tr. 10, 17, 29. He further stated that he climbed up the lattice-work on the side of the C2
stacker conveyor and walked the belt to the head pulley. Tr. 10, 12, 17. As for the Cl conveyor,
Avery told Hom that he used a ladder to access it, then walked down the belt to grease the·head
pulley. Tr. 24-29. Lehmann and Hickman were nearby during this discussion, but only Lehman
heard Hom question Avery. Tr. 22, 163-64, 201. Hom then discussed Avery's statement with
Hickman, and was told that Hickman had no knowledge of Avery walking the belt to service the
head pulleys. Tr. 22-23. Hom estimated the di~tance down the C2 ~tacker belt, from the alleged

1

Extended fittings are used to grease machine parts, like head pulleys, from remote
locations.
28 FMSHRC 653

point of access to the hea(Lpulley, to be 150 feet. Tr. 17-18. The point of access on the Cl belt
to the head pulley, as indicated to Hom by Avery, is approximately 20 feet. Tr. 26-27, 29-31.
Both belt structures are curved surfaces. ':fr. 18, 20, 30. Hom and Avery estimated that the C2
stacker conveyor, in its lowered position, is ten feet .above ground. Tr. 17; ex G-2. Hom
approximated the distance from the Cl head pulley to the ground atJ5 to 20 feet. .Tr. 29, 62-63.
As a result of his observations and discussions with Avery and management, Hom issued two
citations alleging significant and substantial violations of30 C.F.R. § 56.11001. Citation No.
6020987- describes the hazardous condition as follows:
Safe access was not provided to the C2 stacker conveyor belt's head pulley
to grease the bearings. A person was climbing the belt structure 67 inches onto
the belt and walking the belt approximately 150 feet to the head pulley. From the :
head pulley to the .g round [is] estimated to be 10 feet when the conveyor was
lowered. The head pulley bearings are greased once every two weeks. A slip and
fall hazard .existed to the person w.easing these bearings.

Ex. G-1. Citation No. 6020988 alleges the following:
Safe access was not provided to grease the head pulley bearings for the (;1
conveyor. A person was climbing a ladder getting onto the belt and walking the
belt approximately 20 feet to the head pulley, the left side of the head pulley to the
metal guard for the C2 conveyor belt [sic] tail pulley measures 9 feet, from the·tail
pulley guard to the ground measured 4 feet. The right sid~ of the head pulley [is]
estimated to be 9 feet to the C2 conveyor. The head pulley bearings are.greased
every two weeks. A slip and fall hazard existed to person greasing these head
pulley bearings.
·

Ex. G-3.2 Pennsy timely abated the citations.by installing extended grease fittings. Tr. 113;
ex. G-4. No additional citations were issued to Pennsy as a result ofthis inspection and, of the
five or six other conveyors that were inspected, all had walkways or accessible fittings. Tr. 16,
20-21.

.

.

Pennsy conducted its own investigation of the procedures being utilized by the entire
crew to service the head pulleys on the Cl and C2 conveyors and, having uncovered no evidence
of unsafe practices other than Avery's statement to Hom, issued Avery a letter of warning.
·
Tr. 165-66, 194-95, 211-13; ex. R-9.

2Fennsy's protest that the violations were based on Avery's statement, rather than Hom's
observation, resulted in MSHA modifying the Condition or Practice section of both citations by
adding the following language:'' Information for this violation.was obtain [sic] fre>m employees
[sic] at the plant. The company stated they were not aware of this practice." Ex. G-1, G-3.
28 FMSHRC 654

ID. Findines of Fact and Conclusions of Law
A. Applicable Case Law
30 C.F.R. § 56.11001 provides that "[s]afe means of access shall be provided and
maintained to all working places. The Commission has held that section 56.11001 embodies the
dual requirement of providing and maintaining safe access to working places. Watkins Engineers
& Constructors, 24 FMSHRC' 669, 680 (July 2002). A violation may be found when either or
both prongs of the standard are not met. An operator's duty to "provide" a safe means·of access
incorporates the responsibility to instruct its employees on the procedure for safe access. ld. at
681. By interpreting ''maintain" according to its plain meaning, the Commission has concluded
that the tenn "requires an operator to uphold, keep up, continue, or preserve the safe means of ·
access it has provided to a working place." Lopke Quarries, Inc., 23 FMSHRC 705, 708 (July
2001); Western Industrial, Inc., 25 FMSHRC 449, 452 (August 2003). The Commission has
further explajned that the duty to maintain safe access requires constant vigilance because it·
"incorporates an on-going responsibility on the part of the operator to ensure that a means of safe
access is utilized, as opposed to a purely passive approach in which the operator initia.J.ly provides
safe access and then has absolutely no further obligation." 24 FMSHRC at 680 (quoting Lopke,
23 FMSHRC at 708). More is required than simply making a safe means of access "available/'
since the Commission has held that, "at a minimum, the standard' s requirement that operators
'maintain' safe access to working places mandates that management officials utilize that access~
and require other miners to do so." 23 FMSHRC at 709.
B. The Testimony
1. The Secretary's Witness
MSHA Insi:>eetor Reecle Hom testified that he questioned plant operator Thomas Avery
about his method of greasing because "he couldn't get to the head pulley [safely]" without :a.
walkway or extended fitting. Tr. 10, 12-13. Hom elaborated on his concerns about accessing
both conveyors, by explaining that the belts are curved, wet when the plant is operating, have no
safe place to tie off, and would require bending over them to service the head pulleys. Tr. 18-19,
30. These conditions, he asserted, caused a slip and fall hazard that could result in serious
injuries ranging from cuts and bruises, broken bones and head injuries, to a fatality. Tr. 30-31.
Hom testified that when he discussed Avery's statements with plant manager Hickman, he stated
that he "had no idea that the employee was climbing the belt and walking the belt line, that there
was a man lift provided at the other site, but not that was there that day." Tr. 32-34; see 23, 4748, 51 . Hom acknowledged, in fact, that no one in mine management had seen or had knowledge
of any employee walking the belt to grease the head pulleys. Tr. 66, 68-69. In his opinion, in
order to prevent this hazardous condition, a reasonable, prudent operator would "[keep] a
walkway, ladders, and fall protection, make sure his people were using it; check on his people to
make sure they were using the access that was provided, the fall protection and stilffthey were
supposed to be using, that they thought they were using." Tr. 34-35; see 23, '67. He also
acknowledged, through somewhat inconsistent testimony, that multiple ladders, safety harnesses,
belts and lines were on site, accessible, and in good condition. Tr. 31, 49-5i, 55, 66; see 14; .

28 FMSHRC 655

ex. R-1. Finally, according to Hom, bis review of Pennsy's training records indicated that the
company had been providing training to its employees on fall protection, and that Avery,had
received his annual refresher training. Tr. 52.
2. Pennsy's.Witnesses
Robert Dailey, vice.-president of occupational health, safety and environment, has been
wjth Pennsy since February 2004 and has responsib~lity for Pennsylvania, New Jersey and
Delaware operations. Tr..89. Dailey testified that he is responsible for implementing safe work
practices, as set forth in Pennsy's Employee Safety Manual, for all of its mining operations, a8
well as revising the company's policies. Tr. 91-92; ex. R-3. He suinmarized Pennsy's Fall
Protection Program as ''designed as a safeguard in.the event alternate means safe access cannqt
be provided. It outlines the requirements and responsibilities of employees to make a safe
assessment. It also requires that whenever an employee has to work at a height we've chosen
greater than six feet or greater, that they would be required to utili,ze some form of f3J.l pf9tection
means." Tr. 92-93; ex. R-3, Se<'.. 3.1. Dailey pointed out that employees are require4 to
immediately report to their supervisors all questionable or dangerous conditions. Tr. 93-94. He
asserted that the company strictly enforces its safety rules, and that employees b.ave faced
discipline as severe as tennination for failure to follow s~fe work practices. Tr. 94, 101. In
Dailey's opinion, the Cl and C2 conveyors, at the time of ~pection, provided adequate means
of tying off with use of short lanyards. Tr. 95. He noted. th~ as part of Pennsy's ladder safety.
program, the company had recently converted to fiberglass ladders only, and that use of secured
ladders to grease pulleys is an acceptable means of safe access used worldwide. Tr. 96-97. He
noted that Pennsy's annual refresher training specifically includes use of ladders, safe access,
conveyor safety, and fall protection. Tr. 97. Respecting avoidance of injury during plant
maintenance, he asserted, the safety manual clearly prohibits climbing on conveyors in a quarry,
with the exception that "conveyors may be used as access during maintenance only when proper
lockout, tag out and fallout procedures have been implemented.... And in addition, that fall
protection or harness and lanyard is required where there is a danger of falling during
maintenance." Tr. 97-98, 127. He explained that at lower heights, a smaller work platform or
ladder would be preferable. Tr. 99. Dailey identified hazard recognition and selection of
appropriate equipment as topics covered in Avery's Part 46 annual refresher training, which
encompassed safe access and maintenance issues. Tr. 102-107; ex. R-5. According to Dailey, he
visits Tarburton Pit evexy few months, and has not found the plant to be deficient in supplying
fall protection, in good condition, on site. Tr. 108. He noted that Tarburton shares equipment
with two nearby mining operations and rents equipment when sharing is not a viable option. .
Tr. 110. According to Dailey, he has observed employees appropriately accessing equipment,
and he maintained that he has not seen anyone walk on the belt Tr. 113. In order to gre:ase the
head pulleys at issue, Dailey explained, Pennsy's employees are required to ..lower that conveyor
down to its maintenance position, which is as low as it'll go to.the ground, lock that piece.of
equipment out of service, secure a ladder, whether it's· a step ladder that you don't need
assistance or an extension ladder where you would, access the ladder up to the head pulley
position, secure it if need be, do the greasing of the two pieces.inspected, and then put everything

of

28 FMSHRC 656

back in service." Tr. 113. Because many ladders were available throughout the.property, he
asserted, it was not expected that anyone would walk the belt Tr. 114. ·Dailey was adamant that
the company was maintaining safe means of access by having safety policies·in place and
enforcing them and that, based on Pennsy' s investigation, th.ere is no evidence to support·A very's
statement or the Secretary' s charges. Tr. 115-17. He made it clear through his testimony, that,
because Avery refused to elaborate on when and how he had walked the belt, and because Pennsy
could find no corroboration of his statement, Pennsy disciplined Avery for siniply telling the
inspector that he had accessed the equipment in the prohibited manner. Tr. 123-24, 128, 136...39,
143, 146. · Dailey noted that Avery was not called by Peimsy to testify becau8e he was on preapproved vacation. Tr. 139; ex. R-10. Finally, Dailey testified that, because several means of
fall protection were available at the time of the inspectio~ he ''would have thought that there·
would have been more inquiries into what is the praetice, what is the policy, what equipment is
available, let's look at the equipment and talk to other miners. And none of that was done."
Tr. 141-42.
Dorothy Lehmann; safety director for Tilcon, Delaware, testified that she conducts
training at the company's facilities, including Tarburton. Tr. 150-51. She established that
Thomas A very' s annual refresher training was current, and had ·included fall protection and s·afe
access dating back, at least, to 2002. Tr: 152-57; ex. R-8. ·According to Lehmann, duringHom's
pre-inspection paperwork review, he had mentioned safe access in a brief, general discussion
with her. Tr. 158-59. She stated that Tarburton has safe access equipment on site and that she
had no reason to believe that any employee had been violating Pennsy's written safety policies.
Tr. 160. She asserted that she had never seen a worker walk the·belt, and that Avery had never
brought any safe access concerns to her attention.· Tr. 160-61. As to the inspector's conver8ation
with Avery, Lehniann testified that she heard Hoin ask "'Tom how he had grea:Sed that head
pulley," but that she could not recall precisely what Avery had answered. Tx:. 163, 167, 168-69.
When Hom issued the citations, Lehmann stated,·she and Hickman complained to him that the
narratives misstated that he had observed the alleged violations, but Horn refused.to change the
wording. Tr. 164. She participated in the investigation by asking other miners and Hickman
what procedure they used for greasing the head pulley, and was told ''that the conveyor was
lowered and locked, and that a ladder was used to access the head pulley, for other servicing that
the forklift was used with the man basket." Tr. 165-66~ According to Lehmann., she did not find
anyone who had observed Avery walk the belt, and she doubted that he could have done so ·
without being seen. Tr. 176. Lehmann acknowledged that she did not talk to Avery, since it had
already been established that he had made the statement to the inspector. Tr. 168. She voiced
her objection to the citations on the bases that there was no evidence of the alleged conduct at the
site, the inspector had not eye-witnessed prohibited conduct, and the company had been
providing a variety of safety equipment. Tr. 173-75.
Richard Hickman, Tarburton,s plant manager, testified that, pursuant to his investigation
of Avery's statement' to Hom, Avery "said, yes, but he couldn't give me a time when he did it.',
Tr. 194, 212-14, 216-17. According to Hickman, A very had worked at Tarburton ten to twelve
years and, despite Dailey' s recommeridation that Pennsy suspend him for two days, Hickman

28 FMSHRC 657

issued Avery a written warning for bis statement of unsafe conduct, taking into account Avery's
lack of a disciplinary record. · Tr. 195. Hickman maintained that he had been unaware of the
scheduled hearing date at the time that he had pre-approved vacation leave for A very ~d that,
ultimately, he advised Avery that he would have to appear if MSHA subpoenaed him~ Tr. 19798. Regarding the inspection, Hickman explained that he had not heard the discourse between
Hom and Avery. He testified that he had explained to Hom that, to grease the head pulley he .
would "go get a ladder, put it down on the head pulley, secure it with a rope, come down, get ~
grease gun and go up there and grease it, and vice versa do the other side." Tr. 201-02: .This was
the customary manner~ which the employees performed the function, he asserted, and miners
are task trained on maintenance activities in weelcly tailgate meetings. Tr.. 202-03, 207-09~
ex. R-12. As for the safety equipment maintained at the mine, Hickn;iaµ explained that extension
ladders were being used on the day of the inspection, and that Tarburton had access to a fork lift
with a basket housed at the Bay Road facility five miles away. Tr. 204. Hickman.further
testified that he had never seen Avery walk the belt and that, of the entire crew, no one had ever ·
reported having seen him do so. Tr 206, 211-12. He corroborated Lehmann' s testimony that
they had objected to Hom's misleading narrative on the citations, but that Hom would not
change his wording. Tr. 211. Like Lehmanth Hickman expressed·disbelief that it was possible .
to walk a distance of 150 feet on the ~elt. Tr. 216-18, 220. H~ al$9 opined that accessing the
belt makes no sense, when the ladd~ provides direct ~cess .to the head pulley. Tr. 226-27.

C. Fact of Violation
The Secretary concedes that Pennsy provided safe m~ of access to its working places
by referencing Inspector Hom's acknowledgment that . J.a4ders and safety belts were on site during ·
his inspection; it is the company's failure to maintain a safe means of acce~, she argues, that is
the foundation of the violations. Sec. Br. at 5, Jn essence, the Secref:acy is char~g Pennsy with
failure to ensure that Avery used proper safety equipment when he serv.iced the head pulleys on
the Cl and C2 conveyors. Sec. Br. at 7. Penny's own decision to discipline Avery, the Secretary
maintains, is evidence that the company, itself, believed that Avery had walked the beltways.
Pennsy contends that it is a safety conscious operation~ provides and .maintains safe
means of access. The company points to several types of safety equipment that were in view of
Inspector Hom, its Employee Safety Manual .and Fall Protection Prognim, and its extensive
training of all employees in safe access procedures and use of fall protection. Pennsy ass~rts that
its customary procedure for accessing the Cl and C2 head pulleys is by use of secured ladders,
and that there is no evidence of unsafe conduct that would corroborate Avery's statement that he
walked the belt. Avery received a written warning for having made the statement to Ho~
Pennsy argues, because of the company's overriding responsibility for deterring its miners at all
facilities from engaging in unsafe work practices. Tr. 143.
Pennsy, essenti3:l1y, concedes that A very walked the beltways by testifying that A very
admitted telling Hom that he had done so. It is clear that Hom was inquiring about current
practice, and I .fully credit his testimony tl;>.at A very was describing recent conduct. While it is

28 FMSHRC 658 ·

curious that Avery would use a ladder to access the belt, rather than the head pulley directly, I
find that he walked the belts to the head pulleys, as reported to Hom. What is lacking, however,
is the Secretary's evidence of the circumstances under which he engaged in the prohibited
conduct. Hom testified that he asked no follow-up questions of Avery. There are several
questions that he could have posed that would have demystified Avery' s conduct. For example,
Hom could have asked Avery to specify when the activity took place and whether it was frequent
or isolated. He could have asked Avery whether he used fall protection, and where he tied off.
He could have asked Avery whether he had received training on performing maintenance and
accessing equipment safely. Likewise, Hom could have interviewed other employees to ascertain
whether they also performed maintenance on the head pulleys, what procedures were used, and
whether they had ever seen Avery walking the belts. According to Hom, he did not make
inquiries of management about the company's policies and training program on safe means of
access.
The evidence establishes that Pennsy enjoys an exemplary safety record, provides several
types of equipment for safe access to its machinery, has written policy requiring safe conduct in
work performance, and devotes significant time and resources to training its employees on safe
work habits. It is also established that Tarburton miners customarily accesS the head pulleys by
use of secured ladders, and that no one has been·observed walking the belts to grease them. ·The·
Secretary' s position suggests that Pennsy is required to constantly monitor its employees in the
performance of their duties. I disagree, primarily because its employees are highly trained in the
use of safety equipment that is readily available and, among other safeguards;-t hey are required to
report unsafe conduct to management. The aberrant behavior of one employee, without
evidence indicating that it was frequent, flagrant or condoned by management, falls short of
establishing that the company was less vigilant than the standard requires. Interestingly, the
Secretary urges me to draw an adverse inference against Pennsy for its failure to call Avery as its
witness. I decline to do so, especially in light of the fact that the Secretary made no effort to
subpoena Avery or otherwise preserve his testimony. The Secretary also argues that MSHA
investigations are routinely conducted in instances where inspectors have not eye-witnessed
alleged violative conduct. I agree. That argument fails, however, because it simply does not
resurrect the evidence lacking in the Secretary's case. Therefore, I conclude that the Secretary's
evidence, which consists of Avery's statement to Hom, fails to support the conclusion that
Pennsy did not maintain a safe means of access to the head pulleys on the Cl and C2 conveyors,
as alleged.
Because I find that the Secretary has failed to prove, by a preponderance of the evidence,
that Pennsyviolated 30 C.F.R. § 56.11001, Citation Nos. 6020987 and 6020988 must be vacated.

28 FMSHRC 659

ORDER
Accordingly, it is ORDERED that Citation Nos. 6020987 and 6020988 are VACATED,
and this case is DISMISSED.

rL
.· I~
~R.Bulluck
Administrative Law- Judge .
(202) 434-9987
Distribution: (Certified Mail)
Keith E. Bel~ Esq., U .S. Department of Labor, Office of the Solicitor, 1100 Wilson Blvd., Room
2209, Arlington, VA 22209-2296
Brian Y. Yesko, Conference and Litigation .Representative, U.S. Department of Labor, MSHA,
Thom Hill Industrial Park, 547 Keystone Drive, Suite 400, W an-endale, PA 15086-7573
Adele L. Abrams, Esq., Law Office of the Adele L. Abrams,- P .C., 4740 Corridor Place, Suite D,
Beltsville, MD 20705

/ej

28 FMSHRC 660

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204--3582
303:-844-3577/FAX 303-844-5268

August 18, 2006
CIVIL PENALTY PROCEEDINGS

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

Docket No.' WEST 2006-25i-M
A.C. No. 35-03624:-77741 01
Portable#2

v.

Docket No. WEST 2006-252-M
A.C. No. 35-03624-77741 02
Portable#2
Docket No. WEST 2006-255-M
A.C. No. 35-03280-77570
Portable

WESTERN ROCK REDUCTION CO.
Respondent

DECISION
Appearances:

Jeannie Gonnari, Esq., Office ofth,e Solicitor, U.S. Department of Labor,
Seattle, Washington, for Petitioner;
Robin Weathers, President, Western Rock Reduction Co., Shady Cove,
Oregon, for Respondent.

Before:

Judge Manning

These cases are before me on three petitions for assessment of civil penalty .filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"),
against Western Rock Reduction Company ("Western Rock"), pursuant to sections 105 and 110
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the ''Mine Act").
The cases involve 35 citations issued at the Portable and Portable #2 Plants operated by Western
Rock in Jackson County, Oregon. The Secretary proposes a total penaltyof$7,155.00 in these
cases. The parties introduced testimony and documentary evidence at a hearing held in Medford,
Oregon.
At the hearing, the parties requested that I first take evidence on whether Western Rock's
mines were operating on the dates ofMSHA's inspection, They also requested that, if! ruled in
the Secretary's favor on that issue, the parties be given time to try to settle the citations. ~granted
the parties' request. (Tr. 4-6).
The parties stipulated that MSHA has jurisdiction over the Portable and Portable #2
Plants. (Ex. J-1 ). Th~y also stipulated that the Commission has jurisdiction to hear the cases.
Id. MSHA Inspector Denis Karst testified that on September 14, 2005, he traveled to Western
Rock's Portable Plant to conduct an inspection. He met with the foreman, Russ Clark. (Tr. 13).
28 FMSHRC 661

He also discussed the inspection with Robin Weathers, President and General Manager of
Western Rock, and Tracy Packebush, Western Rock's office manager. Karst testified that when
he asked them if there were any problems at the plant, or if they had any concerns about the
inspection, they did not indicate that they had any concerns. (Tr. 14). Wheii Inspector'Karst first
entered the plant area, it was operating. He could see that the conveyor belts were moving and
rock was coming off the 'ends of the belts. (Tr. 15, 19). He also observed either a loader or an
excavator operating. As the inspection began, Mr. Clark shut down the plant. Karst issued nine
citations during the inspection that are at issue in these cases. The inspector testified that no
employee of Western Rock indicated that the plant was not operating that day. (Tr. 16-17).
Inspector Karst also testified that a form filed by Western Rock with the MSHA field
office in Albany, Oregon, notified MSHA that the portable plant was operating, but no form was
filed by Western Rock to notify MSHA that the plant would be closed on or before September
14, 2005. (Tr. 18).
.
.
MSHA Inspector David Small testified that he inspected the Portable #2 Plant on
September 13-14, 2005. (Tr. 26). When he arrived at the plant on September 13, he talked to a
man named Greg who told him that the plant belonged to Western Rock. (Tr. 27). The inspector
was not aware of the existence of this plant.. (Tr. 40). Inspector Small told Greg that he was
there to conduct 3n inspection of the plant. · Small determined that the plant was operating. As he
approached the facility, he saw dust coming off the crushing operation. (Tr. 28). When he
pulled mto the site, the belts and the loader were operating. Id. He could see rock on the moving
belts. Western Rock shut down the plant when he began his inspection. (Tr. 33). He inspected
the plant and issued 23 citations that are at issue in these cases.
Inspector Small returned to the Portable #2 Plant on September 14, 2005, to complete his
inspection.
plant was shut down on September 14 because Western Rock's employees were
doing repairs on the equipment which Inspector Small cited the previous day. (Tr. 29). A frontend loader was loading trucks with rock from the stockpile. (Tr. 33). On September 14, he
issued three citations that are at issue in these cases. Inspector Small testified that he renllned to
the plant on September 14 because he could not complete his inspection on September 13. (Tr.
36).

The

Sometime on September 13, 2005, Inspector Small called Ms. Packebush to find out
more about the plant he was inspecting because it was not in MSHA's records. (Tr. 42). He was
advised that the pl~t he was inspecting was simply a part of Western.Rock's single rock
crushing plant. Id. Ms. Packebush told the inspector that Western Rock has always. operated
under a single MSHA identification number although part of the plant may sometimes be in a
different location. Inspector Small told her that because the plant was split up, they were actually
two separate operations which require separate identification numbers. Id. MSHA established
the identification number for this plant on September 13~ 2005. Small testified that, duriilg this
phone conversation, Packebush did not indicate that either plant was closed in September ~005:

28 FMSHRC 662

Ms. Packebush testified that when Inspector Karst arrived at the Portable Plant, she
advised him that the plant had not been running for several days because of electrical problems.
(Tr. 46, 49-50). She stated that when the inspector arrived, the generator had just been started
and the men were lllilDin:g a little materialtbrough the plant to m·a ke sure that the electrical
repairs, which ha~ been performed by a contractor, were ~eptable. Id. Ms. Packebtis~ also
testified that the plant was not "truly in.operation producing materials, because we were under
almost a week of maintenance." Id. Packebush testified that a previous MSHA inspector would
not issue citations if the plant were being repaired at the time of the inspection. Instead, this
inspector pointed out any safety problems needing correction. (Tr. 50).
Ms. Packebush testified that Western Rock owns one complete ·portable crushing plant.
(Tr. 48). On the day that Inspector Small insp.e cted what MSHA now calls the.Portable #2 Plant,
W estem Rock only had a little finishing crusher at that locati~n. Id. At one point in time the
entire plant was there, but most of it had been moved back to the location inspected by Inspector
Karst. This finishing crusher was only present to complete a job that was just about done.
W estem Rock did not consider the :finishing crusher to be a .separate plant which required a
separate identification number. Mine identification number ~5:-03624 was assigned to this
operation by MSHA as a result of this inspection.
·
.

.

.

Ms. Packebush testified that Western Rock's quarries never close because there is always
a loader operator loading m~terial at its quarries: : (Tr: 49). As a consequence, she never sendS
MSHA a notice that a plant is closing. She testified that she has always notified MSHA when
the company is going to start operating at a new location. (Tr. 45, 49). Western Rock, through
Ms. Weathers, also advised me that it received a Certificate of Honor from MSHA's Joseph A.
Holmes Safety Association for "working 54,783 work hours from 07/01/2000 to 12/31/2004
without incurring a lost time injury." (Tr. 6.1-63; Ex. A2).
After the parties presented their evidence on this issue, as summarized above, I entered a
bench decision. I ruled that both the Portable Plant and the Portable #2 Plant were subject to
inspection by MSHA on the dates in question. (Tr. 51-52). A mine is not required to be crushing
rock for commercial purposes in order to be subject to an MSHA inspection. The Portable Plant
was operating even though it had just been restarted following extensive electrical repairs. In
addition, a loader or excavator was operating. The Portable #2 Plant was crushing rock with a
finishing crusher. On the second day of the inspection, Western Rock was not crushing rock but
its employees were repairing equipment. A front-end loader was also loading product from the
·
stockpile. When an operator is repairing equipment, the mine is still subject to an MSHA
inspection. The inspection may, as a practical matter, be more limited if the entire plant is being
repaired. For example, citations for unguarded pinch points on moving machine parts may not be
appropriate on a piece of equipment which has been tom down for repairs.
the other han~ a
citation issued for having an untrained miner working on the property would be entirely
appropriate, for example. If a mine will be shut down for a period of time, the operator should
notify MSHA of the closure. I confirm my ruling in this written decision and hold that both

On

28 FMSHRC 663

plants were subject to MSHA inspections on the dates that they were inspected by Inspectors
Karst and Small. Consequently, the citations were validly issued.
After I entered my bench decision, the parties requested that they be given time to try to
settle the cases. After the break, the parties announced that they had settled all of the citations.
The Secretary agreed to reduce the total penalty for the citations to $6,469.00, as set out in detail
at the hearing. (Tr. 53'-61). Western Rock agreed to pay this penalty.
Section l lO(i) of the Mine Act sets forth six criteria-to be corisidered iii determining
appropriate civil penalties. I conclude that the proposed settlement is appropriate under these
criteria The Portable Plant has a history of 26 violations in the 24 months preceding September
14, 2005. (S. Exhibit). The Portable #2 ·Plant did not have a separate identity until this
inspection. The operator is small. The Cit~tions were abated in go·od faith. The penalty
proposed by the parties will not have an adverse effect on Western Rock's ability to continue in
business. The gravity and negligence determinations are set forth in the citations.
·
Based on the evidence presented at the hearing;the parties' oral motion to approve
settlement is GRANTED and Western Rock Reduction Company is ORDERED TO PAYthe
Secretary of Labor the sum of$6,469.00 within 40 days of the date of this decision. ~ayment ·
should be made to the Mine Safety and Health Administration at: Office of Assessments, Mine
Safety and Health Administration, P.O. Box 360250M, Pittsburgh, Pt 1525J-6250. The "A.C."
numbers shown in the caption. for these
cases should
be written on the.check(s).
..
.
.
.

Richard W. Manning
Administrative Law Judge
Distribution:

Jeannie Gorman, Esq., Office of the Solicitor, U.S. Department of·Labor, 1111 Third Avenue,
Suite 945, Seattle, WA 98101-3212 (Certified Mail)
Robin Weathers, President, Western Rock Reduction Co., P.O. Box 1269, Shady Cove, OR
97539 (Certified Mail)
.

RWM
28 FMSHRC 664

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

Augu8t 22, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 2006-191
A. C . No. 36-09274-84278

v.
SUMMIT ANTHRACITE, INC.,
Respondent

Bro_ckton Slope

DECISION

Appearances:

Before:

Kenneth G. Hare, Conference & Litigation Representative, U.S. Department
ofLabor, Wilkes-Barre, Pennsylvania, and Susan Jordan, Esq., Office of~e
Solicitor, Philadelphia, Pennsylvania, on behalf of the Petitioner;
Mike Rothermel, President, . Summit Anthracite, Inc., .Klingerstown,
·
·
·
Pennsylvania, on.behalf of the Respondent.
Judge Melick

. This case is before me upon a petition for civil penalty filed by the Secretary of Labor
pursuant to Section 105(d) of the Federal.Mine Safety and Health Act of 1977, 30 u.s:c,. § 8<h et
seq., the "Act," charging Swnmit Anthracite, Inc. .(Summit) with three violations of mandatory
standards and proposing civil penalties for the alleged violations. 1 The general issue before me is
whether Summit violated the cited standards, and, if so, what is the appropriate civil penalty to be
assessed in accordance with Section 11 O(i) of the Act. Additional specific issues are addressed as
noted.
Summit initially challenged the Secretary's jurisdiction, arguing that the Brockton Slope at
issue was not a ''mine" as defined in the Act. Section 3(h)(l) of the Act, provides in relevant part
as follows:
"Coal or other mine" means (A) an area ofland from which minerals are extracted in nonliquid form ... and (C)... shafts, slopes... or other property... on the surface or underground...
to be used in... the work of extracting such minerals from their natural deposits in non-liquid

fonn.

1

At hearing, the Secretaryvacated Citation No. 7008146 and accordingly only two citations
remain for disposition.
28 FMSHRC 665

At hearing, Mr. Rothermel, Summit's president, acknowledged that the Brockton Slope was
being driven for the purpose of aiding in future coal production.2 I find, accordingly, that the
Brockton Slope was, at the time the citations at bar were issued, intended. ''to be used in... the work
of extracting such minerC:lls [coal] from their natural deposits in non-liquid form". Accordingly, the
Brockton Slope at issue was a "mine" as defined in the Act.

Citation No. 7008150
Citation No. 7008150 alleges a "significant and substantial" violation of the standard at 30
C.F.R.§ 77.1900 and charges as follows:
The operator was not complying with the approved shaft/slope sinking plan dated July 06,
2005, in that steel tubing was only installed 20 feet in by the·slope portal and the slope is
down approximately 200 feet. Mine.rs w~e observed working in the slope.
The cited standard, 30 C.F.R. § 77.1900, provides only for the submission and approval of
plans for the sinking of slopes and shafts.3 Jn its answer to the petition for assessment of civil
penalty at bar, Summit stated, in relevant part, as follows:
This citation waS written in error. 77.1900 pertains to the submission of a slope and shaft
sinking plan. Summit Anthracite has submitted a slope and shaft sinking plan with all ofthe
required information included..
While thereby placed on notice of the operator's defense that the wrong standard had been
cited, the Secretary nevertheless failed to modify or amend her citation to allege a violation of the
appropriate standard. Moreover, at hearing, the Secretary offered· Summit's approved plan into
evidence.(Government Exh~ No. 4). Under the cirCumstances then, it is clear that Summit was in
compliance with the cited standard and Citation No. 7008150 must accordingly be vacated.

Citation No. 7008152
Citation No. 7008152, as amended, alleges a violation of the standard at 30 C.F.R. §
77.191 l(d), and charges as follows:
The main mine fan was not being operated while persons were working in the undergroiind
slope. The foreman Mike Rothermel was directing mining operations and working in the

2

Rothermel further acknowledged that during the slope excavation process, materials
removed were transported through their coal processing plant in anticipation that some coal was
included. therewith. While no coal was actually produced as a result ofthis processing, this evidence
clearly supports a finding that there was an intent to produce coal.
,

3

30 C.F.R. § 77.1900-1 requires compliance with such plans.
28 FMSHRC.666

slope along with two other miners. Foreman Rothermel engaged in aggravated conduct by
perfonning and having two miners perform work in the slope without the main mine fan
operating.
The cited standard, 30 C.F.R § 77.1911 (d) provides as follows:
The fan shall be operated continuously when men are below the surface. Any accidental
stoppage or reduction in air:(low shall be corrected promptly; however, where rep~ cannot
be make immediately, development work below the surface shall be stopped; and all the men
not needed to make necessary repairs shall be removed to the surface.
·
While acknowledging that the mine fan was in fact not operating while three miners where
below the surface in the Brockton Slope, Mr. Rothermel argues that the stoppage or reduction in air
flow was the result of an accident i.e. the flexible tubing had been damaged when the continuous
miner was brought into the slope, and that, therefore, the exception to the requireme~t that the fan
be operated continuously applies hereto.
The Secretary argues, on the other hand, that even if there is an a~idental stoppage or
reduction in airflow the standard requires that "all the men not needed to make necessary repairs
shall be removed to the surface". The Secretary notes that since Mr. Rothermel was not needed to
make necessary repairs, he should have been removed to the surface and not have remained
underground. Rothermel himself testified that he was in the mine merely removing the previously
installed damaged flexible tubing (Tr. 42-43). It may reasonably be inferred, therefore, that he was
not needed to make necessary repairs and should have been removed. The violation is accordingly
proven as charged.
I also find that there was a violation of the cited standard because I conclude that there was
no "accidental" stoppage or reduction in airflow. Rothermel claims that the flexible tubing that had
previously been installed in the slope had been damaged by the continuous miner and that, therefore,
its replacement was necessitated by an accident. Under the Respondent's slope and shaft sinking
plan (Plan), however, only the last 50 feet oftubing was permitted to be of fl.exible material and the
remaining tubing must be made of steel. Inspector McGann testified that steel tubing as required by
the Plan was not installed as required and his testimony is undisputed. Since the use of flexible
tubing (except for the last 50 feet), was in violation of the Plan, I cannot consider any damage to it
caused by the continuous miner to have been "acciderital". The requirements of the Plan are clear
and wiambiguous and Respon dent' s failure to have utilized the steel ~bing was obvio~ly
intentional.
As amended, the citation alleges that "injury or illness" is ''unlikely'' and would involve "no
lost workdays". No ~vidence was elicited by the Secretary at hearings regarding gravity. Under the
circumstances, I must find the absence of gravity. Inspector McGann found the operator in this case
chargeable with moderate negligence "based on Mr. Rothennel being a certified mine foreman for
a number of years and knowing he should have had the mine fan on while men were underground"
(Tr. 25). I find no sound reason for modifying the inspector's negligence findings.

28 FMSHRC 667

Civil Penalties
Under Section 11 O(i) ofthe Act, the Commission and its Judges must consider the following
factors in assessing a -civil penalty; the ·history of violations, the negligc;mce of the operator in
committing the violation, the size ofthe operator, the gravity ofthe violation, whether the violation
was abated in good ~th and whether the penalties would effect the operator's ability to continue in
business. The record shows that the operator is small' in size with no history of ''final" violations at
the facility cited. Tuer~ is no diSpute that the violations were abated in a: timely and good faith
manner ~d no evidence has been presented ·as to the effect the penilties would have on the
operator's ability to continue in business. The negligence and gravity findings have previously been
discussed in the instant decision.

ORDER
Citations No. 7008146 and ·7008150 are hereby vacated. Citation No. 7008152 is hereby
affirmed and Summit Anthracite Inc. is directed to pay civil penalties of $75.00 for the violation
charged therein within 40 days of the date of this decision.
.

.

· ·GaryM ck ·
· Administrative Law Judge
(202) 434--:9977
Distribution: ( Certi1iecl Mail)
Kenneth G. Hare, Conference & Litigation Representative, U.S. Department ofLahor, MSHA, The
Stegmaier Bldg., Suite 034, 7 N. Wilkes-Barre Blvd., Wilkes-Barre, PA 18702
Mike Rothermel, President, Summit Anthracite, Inc., 196 Vista Road, Klingerstown, PA

17941

Susan M. Jordan, Esq., Office ofthe Solicitor, U.S. Department ~fLabor, The Curtis Center, Suite
630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306

/lh

28 FMSHRC 668

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303--844-5268

August 28, 2006
DISCRIMINATION PROCEEDING

SECRETARY OF.LABOR,
MJNE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of DIANE PALMER,
Complainant

Docket No. WEST 2005-489-DM
RM-MD-05-04

v.

Ray Complex
Mine I.D. 02-00150

ASARCO INC.,
Respondent

DECISION
Appearances:

Satoshi Yanai, Esq., _Office of the Solicitor, U.S. Department of Labor,
Los Angeles, California, for Complainant;
·
Mark N. Savit, Esq., Donna M. Vetrano, Esq., Patton Boggs, Denver,
Colorado, for Respondent.

Before:

Judge Manning
.

.

This case is before me on a complaint of discrimination brought by the Secretary of Labor
on behalf of Diane Palmer against Asarco Inc. ("Asarco") under section 105(c)(2) of the Federai
Mine Safety and Health Act of 1977, 30 U.S.C. §815(c)(2) (the "Mine Act''). The Secretary and
Ms. Palmer contend that Palmer was discriminated against because she was a safety
representative for the local Steelworkers union. Asarco contends that it did not discriminate
against Palmer and that her.discipline did not violate. the Mine Act A hearing was.held.in
Phoenix, Arizona. The parties introduced testimony and.documentary evi.d ence and filed posthearing briefs.

I. BACKGROUND, SUMMARY OF THE EVIDENCE, AND
FINDINGS OF FACT
Asarco is the operator of the Ray Complex," a large open-pit copper mine in Gila County,
Arizona. At all pertinent times, Palmer drove a large 240-ton haul truck for Asarco. As
described in more detail below,.haul truck drivers transport waste rock and ore-bearing rock from
shovels in the pit to either ~dump or a crusher. The mine uses a computer program to ~ and
monitor the activities of the truck drivers. A salaried supervisor, called the "dispatcher," .s its in a
control tower at the mine and uses this computer program .as an aid to move rock as efficiently as
possible. He uses three computer screens to monitor the activities in .the pit and he can . .
·
communicate with haul truck drivers through the computer system or on the mine radio.
28 FMSHRC 669

At all pertinent times, the dispatcher on Palmer's crew was Bruce Miller. Miller has
worked for Asarco for 16 years and he has been a dispatcher for 8 years. Prior to becoming a
dispatcher he was a truck driver and heavy equipment operator. The objective of the
computerized dispatch system is to increase production. The system tracks each haul truck as it
moves about the pit and calculates how long each trip should take based on a·running average it
calculates. Each haul truck is equipped with a global positioning system ("GPS'') device and a
dispatch panel that communicates with the central computer. The shovels, the dumping
locations, and other positions within the pit are equipped with devices that can sense and record
when a truck bas arrived at each location and when it leaves. Throughout each shift, the haul
truck drivers receive their instructions on the dispatch panel's computer screen in the cab of the
truck. The computer sends the drivers text messages and the dispatcher also sends text messages.
Drivers can also send text messages to the dispatcher. Some of these messages are preprogrammed so that the driver need only touch a few keys to send the message. As stated above,
the dispatcher and the drivers can also communicate via the mine radio.
The dispute in this case concerns the discipline Palmer received when she parked her haul
truck near the end ofh~r shift on October 27, 2004, and again.on November 5, 2004. Palmer
shut down her truck because·she did not believe that she had time to take her loaded truck to the
dwnping location and return to the shovel before the end·ofthe shift. Miller denied Palmer's
request to shut down via text messages and the radio. Palmer contends that other haul truck
drivers received counseling when they parked their trucks before the end of the shift. She
contends that she was singled out for discipline because she had just become an alternate safety
representative on her crew for Local 5252 of the United Steelworkers of America (''union"). The
discipline on October 27 was a verbal warning and the discipline on November 5 was a written
warning. (Ex. S-1 & S-2). Contestant is seeking an order direeting that all references to ~s
discipline be expunged from Palmer's employment file and directing that Asarco cease 'arid desist
from further harassment of or retaliation against Patmer or other employees for exercising their
Mine Act rights.
·
A brief and simplified description of the work day of haul truck drivers is necessary to ·
understand the dispute between the parties. When haul truck drivers arrive at the beginning of a
shift, a bus delivers them to their haul trucks. The trucks may be parked at several different ·
locations at the mine. When a driver arrives at her assigned haul truck, she performs a pre-shift
examination. If the truck bed is empty, a text message·on the·dispatch panel will tell the driver
which shovel she should drive to for her first load of the shift. If the truck contains rock, the
dispatch panel in the truck will display a text message th~ tells the driver where to dwnp the
load. Once a shovel loads a truck, the operator of the shovel will punch a button in his cab
instructing the driver where to dump the load. This instruction will appear on the dispatch
panel's screen. For example, the screen may say, •'Truck lff446 assigned from $hovel ES02 to
Dump-Diversion Dam, Truck HT446 should arrive at Dump Diversion Dam in 13.4 mins." One
of the screens monitored by the dispatcher also displays this information along with the exact
time that each message was sent. The monitormg devices located throughout the pit track the
progress of the truck using the GPS system and record the time. The dispatcher can see this

28 FMSHRC 670

information in text form and in picture form. The sensing device at the dwnp also records the
time the haul truck amves at the dwnp. Once the drivei dumps the rock, she will receive another
text message that will say, for example, ''Truck HT446 assigned from Dwnp Diversion Dam to
shovel ES02, Truck H'f446 should arrive at shovelES02 in 9.6 mins." Very detailed monitoring
information is kept in the oomputer at the mine. Printouts of this detailed information were
introduced into evidence in this case.
Every time a truck leaves a shovel or a dumping location, a new assignment appears ·o n
the dispatch panel,.s screen in the cab of the truck. Near the end of the shift, one of two things
can occur. A drlver can punch in the delay code on the dispatch panel, which is "444." This·
code tells the dispatcher via a text message that she wants to shut down·her truck for the shift
change. The dispatcher can accept the delay code and tell the driver via text message where to
park her truck. The dispatcher can also deny the request and tell the driver to keep hauling her
load to the dump and await further instructions as to where to park ("tie down'') at the end of the
shift. Under the collective· bargaining agreement, if the haul truck operator is directed to keep
be paid for
driving and she ends up working a few m.lnutes beyond the end of the shift, she
at least 15 minutes of overtime. A driver cannot refuse a request to keep ·operating. In the
alternative, the dispatcher can send a text message to a driver telling her to tie down at a
particular location without the driver first punching in the delay code. Using the ·oomputer ·
system, the dispatcher knows how long it should take a haul truck operator to get to the specified
tie-down location. The bus that transports the incoming haul truck drivers takes the outgoing
·
haul truck drivers back to the xpine office.

must

As ·of October 2004, Ms. Palmer had been driving a haul trtick at the pit for seven years.
She was amember of the Union. It appears that the alternate union safety representative for her
shift transferred to another department at the mirie soinetime in July 2004. (Tr. 125). Palmer
agreed to replace the departing alternate safety representative. In addition, she became the chief
safety representative on the crew, replacing Charles Berry, soon after he went on medical leave
on November 3, 2004. (Tr. 199). The record does·not make clear when she became·the alternate
safety representative, when the'union notified management that she had taken this position, or ·
when Mr. Miller became aware of this change. In an interview with MSHA Special Investigator
David B. Funkhouser in February 2005; Palmer said that she became the safety representative for ·
the crew on or about November 3, 2004, and that she became the alternate safety representative
about a week prior to that date. (Ex. R-38; Tr. 48). At her deposition, also taken in February
2005, Palmer testified that she became the alternate safety representative in ''NovemberOctober 2004." (Ex. R-39 pp 20-21; Tr. 51-55). At the hearing in this case~ Paimertestifiedthat
she became the alternate safety representative in mid-September 2004. (Tr. 16-17). George
Hunt, a heavy equipment operator at the pit and the safety chairman for the uniqn, testified that
Palmer became the alternate safety representative for her cre\v iri late August·or·early September
2004. (Tr. 125). Robert Manriquez, a heavy equipment operator and president of the union, · ·
testified that Palmer.became an alternate safety representative so~etime between July and ·
October 2004. (Tr. 144).

28 FMSHRC 671

It is important to understand that Complainant contends that Palmer's protected activity
was,her selection as the alternate safety representative for her crew and her subsequent selection
as the safety representative. Complainant did not offer any evidence about specific safety .·
complaints that Palmer made on behalf of herself or anyone on her crew prior to October 27 or
November 5, 2004. Hunt testified that she must have been involved in safety complaints as an
alternate safety representative. (Tr. 130). He bases bis opinion on nothing more than the fact
that he believed that she had been an alternate safety representative for at least a month.
Manriquez testified that he believes that Palmer was involved in at least one safety complaint
sometime in early October 2004. (Tr. 145-46). As the alternate safety representative, Palmer
was a.backup for Hunt and became involved in safety issues primarily when he W;lS not available.
(Tr. 17). I find that Complainant did not establish that Miller was aware of any specific safety .
complaints that Pal.mer made prior to October 27, 2004.
. Conflicting evidence was presented at the hearing on when Asarco management was
notified by the union that Ms. Palmer had become an alternate safety representative.
is no
dispute that the union regularly posts a list of the safety rei}resentatives as changes are made. .
The union does _not date these lists as they are updated, however.. It is Mr. Hunt's r~sponsibility
as the union safety chairman to keep the list of safety representatives up to date~· .He testified that
he first posted the list, which inc:l1:1d~d Ms. Palmer as. altei-nate saf~ty represetiiative, ·at
locations at the mine some time before October 27,. 2004. (Tr. 127-:280; Ex. S~ 10). Hunt
admitted that he is not sure when the updated list was posted or who iiad a copy of the list. (Tr.
137-38). One of the places that he regularly posted the list is in fb,e dis,i>atcher's area. _After the
discipline was issued to Palmer for stopping early on her October 27 shift, Hunt, Manriquez, and
Palmer were in Miller's work area and Hunt pointed t'! tlie:ljst sho~g_ that Palmer was.an
alternate safety representative. Miller said that he had not looked at the updated list and that he .
did not know that Palmer had been designated as an alternate safety r~res~tative.

There.

an

various

On October 27, 2004, Palmer was working on the shift that starts at midnight ~d ends at
8:00 a.m. Palmer was driving her normal truck, which was nwnber 447. Palmer testified that,
near the end of her shift, she was loaded with rock from the No. 2 shovel. The dispatch.panel in
her truck.<lirected her.to dump the load at the No. 9 dump. She.pulled away from the shovel and
parked the vehicle in the tie-down location at the shovel pit. She determined that she di4 not
have time to drive to the dump, empty the.bed of her truck, and return to the shovel to tie down.
She punched in the delay code and began performing her routine duties. She cleaned out the cab ·
of the truck, cleaned the outside of the windshiel~ and put chocks under the wheels. As she
waited for the bus to pick her up, she believed that she had parked her truck in accordance with
company procedures.
Miller testified that, when he received the delay code from Palmer, he looked at.tlie
computer screens.before him and determined that Palmer had time to dwnp her load. He pressed
the code that rejects the delay code. He could tell from the information on the computer screens
that the truck was not moving. The picture of a truck turns a pink color on the screen.when it is
not moving. He testified that he rejected Palmer's delay code and also called her on the radio
28 FM~HRC 672

several times but he did not get a response. Pahµer testified that she either did not receive the
rejection of her delay code or she did not see· it. She also testified that Miller did not call her on
the radio.

The printout of the text messages provides the following information, in part:
ES02 loaded HT446 with LG SulCure
HT446 assigned from Shovel ES02 to Dump 9D
HT446 should arrive at Dump· 9D in 12.7 min.
HT446 Delay rejected by dispatcher
Message "should be dumping load" sent to Truck HT446

7:36:40
7:36:40
7~36 :40

7:44:13
7:45:34

(Ex. R-14 p. 2) (programming codes and other irrelevant information omitted). The only
message that was generated by Miller is the "delay-rej_ected" message; the others were generated
by the computer system.
Asarco' s witnesses testified that, because a delay code appears on a separate screen, it
does not show lip on the printout. Miller testified that, because he must approve or deny a delay
code quickly, he estimates that Palmer punched the delay code within a few minutes before 7:44.
Miller testified that the purpose of the computer monitoring program is to increase efficiency.
The objective is·to keep the haul trucks moving until a few minutes before the end of the shift. It
did not matter to Miller whether Palmer had time·to return to the shovel before the end of her
shift. Once she dumped her load, he would determine where she should tie down. He testified'
that he could have told her to tie down at the dump or continue driving until she reached a tie
down location known as "Bluebird." Bluebird is located about halfway between the dump and
the shovel. Complainant' s witnesses testified, however, that Bluebird was ·not a recognized tie
down location in 2004. Palmer testified that everyone tied down at the shovels in October 2004.
(Tr. 26). Haul trucks cannot tie down on the haulage road. There are established areas in the pit
where these large trucks are permitted to tie down. These areas must be large and relatively flat
so that trucks can be safely parked and chocked and a bus can safely enter the area.
The next day, October 28, 2004, as the haul truck drivers were gathering on the patio
outside the mine office to get on their busses, Miller approached Palmer and told her that ·s he
parked too early on her previous shift. What happened next is the subject of great dispute in this
case. Palmer testified that, in reply, she said that she "didn't feel" that she had parked too early.
(Tr. 25). Miller replied, ''well, you did~" and he became angry, walked into the office and, when
he came out, handed her a written copy ofa verbal warning. (Tr. 25-26). Palmer testified that
she did nothing and said nothing to provoke Miller's anger. Id. Daryl Neely, another haul truck
driver on Palmer's s~ft, was on the patio with Palmer and Miller on October 28. He
corroborated Palmer's version of the events. He said that Palnier was neither aggressive nor
sarcastic toward Miller and that she did not raise her voice. (Tr.' 90-91 ).
·

28 FMSHRC 673

Miller testified that, when he told Pahner she bad parked too early on her previo1:18 shift,
she denied that she had park~ early. (Tr. 304). Miller testified that he then said, ''Diane, I am
not here to debate whether you had time to get to the dump or not, because I already kiiow that
you had time .... I pulled up the times [on the computer]." Id. He further testified that he said,
"I'm not here to write you up. I'm just here to counsel you and let you know that you had time to
go to the dump." Id. Miller. testifie4 that Palmer continued to argue with him and that she
eventually said, "If you don't like it, put it on paper." (Tr. 305). Miller said that he responded,
"Okay, Diane, if that's the way you want it, that's the way we'll do it." Id. Palm.er then asked
for a shop steward. Miller testified that he wrote up a .verbal warning only after this exchange.
Jimmy Powell, another haul truck driver on Palmer's shift, corroborated Mi.lier'~ testimony. He
testified that after Palm.er denied that she had time to go to the dump, Miller responded ''Diane
we talked about this before. You had time to go to the dump. I have it in dispatch." (Tr. 391).
When Palmer continued to deny that she had enough time, Miller responded "Well, next time I'm
going to have to write you up." Id. Palmer then responded, "Go ahead and write me up.. I don't
care." (Tr. 392). Asarco also relies on the fact that Palmer later apologized to Miller for the way
she talked to him on October 28. (Tr. 56, 74, 78, 308, 374).
Under the collective bargaining agreem.C?tt., a .system of progressive discipline is used.
The first step is a verbal warning, which is memorialized in a writt~ document. The second step
is a written warning. The same fonn is used for this.discipline, but a different box is checked on
the form. Managers also use cowtSeling as a way to correct behavior. When counseled, an .
employee is advised that she made some sort ~f mistake but a written record is ·not kept and such
counseling is not considered to be discipline. The verbal warning given Palm.er states,. a5
follows:
Diane delayed too early .at the end ofthe shift instead of going to
the dmnp. I called her and got no answer. She bad 2i minutes to
dump and her loads were taking 12 to 13 min. In the future, she
needs to work until the end of the shift not past the end of the shift.
(Ex. S-1).

The linchpin of Complainant's case is that other employees who tied down about the
same time as Palmer were merely counseled rather than disciplined. The Secretary contends that
·
this evidence of disparate treatment, along with other evidence of Miller's hostility toward
Palmer, establish that she was disciplined because she had become the alternate safety
representative for the union. Asarco contends that she was disciplined because she parked too
early and, when Miller tried to counsel her the following day, she refused to acknowledge that
she parked early or say that she would park later in the shift in the future.
Several of Complainant's witnesses testified that they had parked early and had merely
been cowtSeled by Miller. Most of these events occurred on other days. Mr. Neely testified that
he was accused of parking early on two occasions. (Tr. 91 ). Miller told him 'not to do it again"

28 FMSHRC 674

but he took no further action. Neely testified that he and two other drivers who had parked early
were called into a meeting with Miller and another supervisor and were merely told to ''try not to
do it [any] more." (Tr. 93). Lonny McNavage, another haul truck driver, testified that on about
six occasions Miller contacted him by radio or dispatch panel to tell him to proceed to the dump.
(Tr. 115). Although McNavage testified that he did not proceed to the dump as instructed, he
was never disciplined for his actions. (Tr. 116). On October 27, 2004, Sal Hernandez also
parked early, yet he was not disciplined. When Miller rejected bis delay code, he called Miller
on the radio to tell him that he was too tired to drive any further. Miller then ·gave ·him
permission to tie down at the shovel. Manriquez testified that, based on his review of the
records, no other employee at the mine has ever been disciplined for parking early unless that
employee had already been counseled about the same problem earlier. (Tr. 158-59).
On November 5, 2004, Palmer was again driving haul truck 446 and was working the
shift that starts at 4:00 p.m. and ends at midnight. After being loaded with rock at the.No. 2
shovel near the end of her shift, her dispatch panel directed her to dump the load at the dump at
the Diversion Dam. Palmer determined that she did not have enough time to dump the load and
return to the shovel so she parked her truck at the shovel pit. She testified that it was 11:45 p.m.
when she decided to park. {Tr. 30). The computer records provide the following information:

ES02 loaded HT446 with Sulfide Waste
23:39:54
HT446 assigned from ES02 to Dump Diversion Dam
23:39:54
HT446 should arrive at Dump Diversion Dam in 12.9 mins.23:39:54
HT446 assigned to Dump Diversion Dam by dispatcher
23:46:28
Message "RU at Dump" sent to Truck HT446
23:50:01
Crew 2 worker D Palmer logged off Truck HT466
23 :52:09
(Ex. R-17, p. 6) (programming codes and othef'irrelevant information.omitted). The only
messages that were generated by Miller are the "assigned to Dump Diversion Dam by dispatcher"
and the "RU at Dump" messages; the others were generated by the computer system.

Palmer testified that drivers were parking their haulage :trucks at the shovel pits and that
she did not believe she had time to dump her load at the Diversion Dam and .return to the shovel
before the end of the shift. (Tr. 29). Miller testified that Palmer was operating the last truck to
be loaded by the shovel that shift and she "had a little bit more time left to go to the dump this
time, and she also chose to sit in the pit for a number of minutes and do nothing." (Tr. 309). Her
truck turned pink on his computer screen so he knew that she was just sitting·in the pit and not
moving. Miller stated that he sent her a text message again assigning her to the Diversion Dam
to let her know that he knew that she was not moving. (Tr. 310). Miller testified that he tried
without success to r~ach her on the radio. He then typed the message "RU at Dump" -and
received no response.

28 FMSHRC 675

Senior Mine Supervisor Gary Torres held a meeting with Palmer and Miller to discuss
this incident. Torres told Palmer that when the dispatcher gives a direct .o rder to go to the dump,
the driver must proceed to the dump. (Tr. 383). The discipline that Palmer received for parking
at the shovel states:
. D. Palmer had 21 min to go to the dump again and chose not to go.
Her loads were talcing her 11 min. That gave her 10 min to get
back to the shovel. Last week she was also given discipline for not
going to the dump.at the end of the shift.

(Ex. S-2). The union filed grievances fo.r both disciplinary notices, which have not y~t been
resolved. (Exs. R-12 & 13). In both grievances the union asks that the discipline be removed
from Palmer' s record. In the second grievance, the union also asks that Miller be placed in a
non-supervisory position.
Asarco previously issued a memo concerning procedures to follow at shift change. The
memo was issued because a haul truck driver ''barreled" into a tie-down area too fast when a bus
was present. This memo, dated April 2, 2004, states, i.Q. part:
Our policy remains that all mine equipment operate right up to the

end of each shift. However, extenuating circumstanc.e s do occur.
If you happen to be running late, refrain from entering your
designated tie-down until the busses have left.the area. Get in
touch ·w ith control and request a·ride. . . . If you don't think you
can make the last haul and still be back at a tie-down or shovel pit,
request a tie-down assignment. Remember that the dispatcher
makes the call, however, it is up to you to communicate your
concerns. The control room supervisor knows exactly how long it
takes for a particular.truck to make any given rowid-trip to a dump
or crusher. Ifyou are having trouble with your truck,·you need to . ·
inform your supervisor so that allowances can be made. We need
to maximize productivity during the first and last hours of any
given shift, however; we must do this in a safe manner.
(Ex. R-10).
The Complainant offered other evidence of Miller's hostility toward Palmer's protected
activities. Palmer testified that Miller's attitude.toward her changed considerably in October
2004. She testified that Miller had previously been friendly with her and jokingly referred to her
as his "daughter" \>efore she became an alternate safety representative. (Tr. 40). After she
became a safety representative, Miller stopped all friendly interactions with her. Miller also
stopped responding to her radio calls. (Tr. 41, 152-53).

28 FMSHRC 676

On January 3, 2005, Ms. Palmer reported that her truck was overfilled with oil and should

not be operated. When she was assigned _to another truck, she disc9vered that it did not have an
operable back-up alarm. As a consequence she was assigned a third truck. Palmer testified that,
as a result of these reassignments, she had to perform three pre-shift examinations in the pouring
rain. She subsequently asked to go to the office because she was soaking wet and did not feel
well. She was sent home at her request. Palmer argues that she should have been reassigned to
her own truck after the excess oil was removed. Miller testified that she·was ·assigned to the third
truck because it was parked on a ramp so it needed to be moved. Complainant c0ntends that
there were other qualified haul truck drivers who were not operatjng haul trucks that night, who
could have moved the haul truck that was parked on the road.. Complainant cites these events as
evidence that Asarco continued to treat her.differently than her fellow driver5. Miller testified
that these other drivers were being trained on other equipment and were not available for other
work.
Sometime in February 2005, Palmer and two other haul truck drivers forgot to chock their
truck tires at the end of the shift. Only Palmer was counseled by Gary Torres followitig the
incident. Palmer believes that she was sirigled out becatJSe of her position as a safety
representative for the union. Torres testified that he could not recall whether other miners had
failed to chock their tires that night and that he would have counseied them as well had.he
known. (Tr. 384-85).
Finally, Complainant alleges that Miller's discriminatory attitude toward Palmer's
protected status can also be inferred from his treatment of Mr. Berry. Berry was the.chief safety
representative on her crew until he went out on medical leave. Miller admitted trult"he had told
Berry that he should not be assigned to drive water trucks because he was always "complalning
of different things." {Tr. 321). Dennis Chroninger, the shift supervisor for Palmer and ~iller's
crew, testified that he heard that Miller did not want Berry driving water trucks because he was
always complaining about the need for more watez: ~cks on the roads. (Tr. 375). When he ·
heard about this controversy, Cbroninger told Miller that Berry "will take his tum on the water
truck." Id. Manriquez testified that he understands that Miller did not want Berry driving.water
trucks because "he makes too many safety complaints." (Tr. 155).. He also testified that Berry
had a preference for driving water trucks. Complainant contends that water trucks perform an
important function at the mine by controlling dust and fighting fires. (Tr. 377). Consequently,
Compl~t argues that Miller's refusal to assign Berry to operate water trucks demonstrates
Miller' s animus toward those who make safety complaints and those who engage in safety
related activities. (S. Br. 8-9).
II. DISCUSSION WITH FURTHER FINDINGS
AND CONCLUSIONS OF LAW

Section 105(c) of the Mine A~ prohibits discrimination against miners for exercising
protected rights under the Mine Act. T~e 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
28 FMSHRC 677

encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation." S. Rep. No.
181, 95lh Cong., 1st
35 (1977), reprinted in Senate SubcoJ1lID.ittee on Labor, Committee on
Human R~ources, 951h Cong., 2nd Sess., Legislative History ofthe Federal Mine Safety and
Health Act of1977 at 623 (1978)
·

Sess.

A miner alleging discrimination under the Mine Act establishes a prima facie case of
prohibited discriniination by presenting evidence sufficient to support a conclusion that he
engaged in protected activity and suffered adverse action motivated in any pa,t by that activity.
Secretary ofLabor on behalfofPasula v. Consoli4ation Coal Co., 2 'F MSHRC 2786, 2797-800
(October 1980), rev'd.on other grounds, 663. F.2d 1211 (3d Cir. 198.1); Secretary ofLabor on
behalfofRobinette v. United Castle Coai Co., 3 FMSHRC 803, 817- 18 (April 1981); Driessen v.
Nevada Gold.fields, 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 maIµler, it nevertheless may defend by proving
that it was also motivated by the miner's unprot~te4 ~tivity and would have taken the adverse
action for the unprotected activity alone. Pasula at 2800; Robinette, 3 FMSHRC at Sl 7-18; see
also Eastern Asspc. Coal Corp. v. FMSHRC, 81°3 F.2d 639, 642 (41h ~ir. 1987).

A. Protected Activity
The only ~edible evidence ofPahner's protected activities as of October 27 a,nd
November 5, 2004, is herp0sition as the ~ternate safety representative and.then the safety.
representative for her crew. In that position, she would become involved in helping resolve
safety.d isputes at the mine for her crew. There is no cre<hole evidence that Miller was aware that
she had actually been involved in any significant safety dispute as of October 27 or November 5.
Nevertheless, as a newly app<:>inted alternate safety representative she would soon be involved in
safety activities on behalf of the union. I find that, although the date of her appointment as
alternate safety representative is uncertain, she was the alternate safety representative on or
before October 27, 2004. I hold that the Mine Act.prohibited Asarco from·taking an adverse
action against h~ as a result of her status as a newly appointed alternate safety representative.
See generally, Secy ofLabor on behalfof Glover v. Consolidation Coal Co., 19 FMSHRC
1529, 1533 (Sept. 1997) (miners' representatives are members of a protected class); Secy of
Labor on behalfof Sullivan v. 3M Co., 24 FMSHRC 1006, 1011 (Nov. 2002) (AU) (activity on
a union safety committee constitutes substantial evidence of protected activity). Consequently, I
find that Diane Palmer engaged in protected activity.

B. Adverse Action
Complainant contends that Diane Palmer suffered adverse action as a result of her
protected activities. The adverse action is (1) her verbal warning issued 'for.parking early o~
October 27, 2004, (2) her written warning issued for parking early on November 5, 2004, and (3)
.
.
.
28 FMSHRC 678

Asarco's continued harassment ofher_through the actions ofBruce Miller: Asarco maintains that
Miller did not know that Palmer was an alternate safety representative on October 27~ that
Palmer's discipline was entirely unrelated to h~ protected activities, and that Miller did not
harass her. As it is difficult to discern what person is·thiriking, the Commission has set out
some guidelines for determining motivation.

a

We have acknowledged the difficulty in establishing a motivational
nexus between protected activitY and the adverse action that is the
subject of the complaint. "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). J.irChacon, 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 betw~ the protected activity and the adverse
action; and (4) disparate·t:reatment ofthe·complainant.

Sec '.Y ofLabor on behalf ofBaier v. Durango
21 FMSHRC
953; 957 (Sept. 1999).
.
.Gravel,
.
.
'

The first issue.is whether Miller was even aware o:ri. October 27 that Palmer was a safety
official with the union. Knowledge of the protected activity is a·critical element in a
discrimination case. As discussed above, Complainant's witnesses could not agree on when
Palmer became an alternate safety representative or when the .c ompany was notified ·o f her
appointment. Palmer told the MSHA special investigator that she became the alternate safety
represented about a week prior to November 3, 2004. (Ex. R-38; Tr. 48). That would be on or
about October 27. At her deposition she·said that she became the alternate in November or
October 2004. (Ex. R-39 pp 20-21; Tr. 51-55). At the hearing in this case, she said that it was in
mid-September 2004. (Tr. 16-17). Her deposition and MSHA interview were in February 2005,
which was more than a year before the hearing in this case. As summarized above, Hunt and
Manriquez were also unsure when Palmer became the alternate and when the amended list was
posted. Miller testified that he did not know on October 27 that Palmer was an alternate safety
representative for his crew. (Tr. 302-03, 307). Miller testified that he first learned that she was
the alternate safety representative when the union shop steward advised him of that fact shortly
after he handed Palmer the verbal warning notice. (Tr. 303). Later when Hunt, Manriquez, and
Palmer came into Miller's work area and pointed to the amended list on the board above his
desk, he replied that_he had not looked at it. (Tr. 151, 303).

I find that a preponderance of the evidence does not establish that on October 27 Miller
knew that Palmer was an alternate safety representative. The undated list d~es not highlight any
28 FMSHRC 679

changes made. (Ex. S-10). It is simply a list of 11 names and union positions. It is easy to
understand why Miller would not notice the changes in the list, even if it had been recently
posted. I also f.ind that the Complainant did not establish that Miller lmew of Palmer's status
when he issued the verbal warning to her the next day. As a collllequ~ce, Complainant did not
establish a violation of section 105(c) of the Mine Act with respect to Palmer's verbal warning.
Asarco and Miller clearly knew that Palmer was an alternate safety_representative or the
chief safety representative on Nov~ber 5. There was also a coincidence.in time between the
protected activity, i.e., her appointment as an alternate safety representative and the adverse
action. The key is whether there is evidence of hostility or animus toward the prot~ted activity
and whether there is evidence of disparate treatment.of Palmer.
The record makes clear that Mill.e r pushes truck drivers more than the dispatchers for
other crews at the pit. Witnesses for both parties testified .that Mjller requires drivers to operate
their trucks up until a few minutes before shift change. For example, McNavage testified that
Miller has a reputation for pushing drivers to go to the end of the shift. (Tr.. 120). Powell
testified that Miller works drivers until the end of the shift. (Tr. 390). Muetchler, the mine
manager, testified that Miller is well respected by upper management bec~use he "pushes his
drivers, he pushes his trucks, but he doesn't do so at the expense of safety." (Tr. 203). As a
consequence, Miller is "controversial" with some drivers because "he pushes harder than some of
our other supervisors and some of our employees don't like that.'' Id. Miller testified that he
requires his drivers to run up until the end of the shift. (Tr. 299). Some members of the union,
including the cmrent president, believe that Miller is not acting in the best interest of Asarco
when he pushes the drivers and the union has asked in grievances filed against Miller that he be
moved into a non-supervisory position. (Tr. .168-69).
It is also clear that Miller and Asarco believe that drivers may be required to operate their
vehicles to the end of the shift. The drivers who testified stated that, if the dispatch panel in their
truck tells them to go to a particular diimp or crusher to dump rock, they must. do so.
Complainant did not argue at the hearing .that, by requiring haul truck drivers tp operate their
vehicles to within a few minutes of the end of the shift, Asarco created a safety or health hazard. 1
The case is based solely on Asarco's treatment of Palmer.
·
·
Complainant contends that the evidence establishes that Asarco, acting through Miller,
demonstrated hostility toward Palm.er's protected activity. Although I have held that Miller did

i
In·the complaint of discrimination, the Complainant alleges that, on October 27 and
November 5, Palmer "parked her truck before the end of the shift because she believed that there
was insufficient time left in the shift to safely perfonn
further work." (Complamt W7 & 9)
(emphasis added). ·Complainant did not present any evidence at the hearing that it would ·h ave been
unsafe for her to continue driving to the dump on either date. Palmer testified that she did not
believe that she could make it to the.dump.and back to the shovel in a safe ~anner. (Tr. 78). She
did not explain what her safety concerns were.
·

any

28 FMSHRC 680

not know that Palmer was an alternate safety representative when he disciplined Palnler on
October 27, 2004, I analyze both incidents when considering the animus and disparate treatment
issues because the evidence and legal arguments are intertwined. Complainant contends that
Asarco's reasons for disciplining Pahner are pretext because "Miller could not have believed in
good faith that Palmer had sufficient time to complete another run before the end of her ~hift on·
either occasion." (S. Br. 14-15). Complainant makes this claim based on a review of the steps
Miller used to calculate the time it would take Pahner to travel t~ the dump and back to the
shovel. (S. Br. 14-22). I hold that the8e arguments are largely irrelevant to this case. Miller
credibly testified that he looks primarily at the time it will take a particular truck to get to the
dump when reviewing whether that truck should be allowed to·tie down at the shovel at the
request of the driver. (Tr. 300-01, 319, 323, 334-37, 348-49, 352, ~63-64~ 366). Miller testified
that; at the end of the shift, h.e is not trying to get the trlick back to the shovel; instead he is
''trying to get that last load dumped because that's what we do is try to get that last load dumped
... because that's how we make the money on these loads." (Tr. 366-67). After the driver
dumps the rock, Miller determines where she should park.. Although it is not a normal tie down
location, Miller testified that he can have a truck park at the dump if necessary. (Tr; 363, 367).. I
find that the evi.d ence does not support Complainant's position that Miller did not have a good
faith belief that Pahner could have continued driving her truck until a few minutes before the end
of the shift.2
·
·
Mine Manager Muetchler put Miller's testimony on this issue into perspective. He
testified that the haul trucks are the most importarit part of the miriing process. (Tr. 182). Asarco
has calculated that total revenues generated by
pit over a period oftime divided by the·· ·
number of tnick loads dumped during the same period of time to be a~out $20,000 at current
copper prices. Thus, the company views each truck load to be worth $20;000. ·About 30 haul
trucks are operated on each shift. {Tr. 183). He testified that if the pit loses one load per truck
for all three shifts, a significant amount of productiOn is lost As a consequence, it is company
policy to run each haul truck "right up until the end of the shift on the houi." ·(Tr. 184)~ At the
end of each shift, Asarco strives for a "hot seat change" whereby the driver on the oncoming shift
starts her preshift examination of the truck just as the driver from the preVious shift getting off

the

is

. .

.

2

Complainant contends thaf the issue in this case is not whether Palmer had 'time to go to
the dump on either date, but whether she could have parked at the Bluebird tie-down. (S. Reply Br.
14, Tr. 349). Complainant believes that Miller had made an irrevocable decision to have Palmer
park at Bluebird if she did not have time to return to the shovel. Id. Consequently, Complainant
believes that ifthe evidence shows thatthe Bluebird tie-down was not available and ifthe company
records show that she did not have time to return to the shovel, then Palmer's decision to park early
is vindicated and Miller's discipline was both unwarranted and was giv~n in bad faith. I disagree.
Although Miller testified that he was thinking that he would have Palmer park at Bluebird when the
dispatch system ordered her to continue toward the dump, it is quite clear that Miller's objective was
to get her and the other drivers as far along as possible before the end of the shift. ·The issue in this
case is not whether Palmer could have made it back to the shovel before the end of the shift or
whether Bluebird was available as a tie-down location.
28 FMSHRC 681

the truck. Id. Miller's conduct in detennining whether Palmer had time to get to the dump rather
than time to make a rowid trip is entirely consistent with.A$arco's policy.
The dispatch, records show.that .o n October 27, ~004, Palmer was instructed to proceed to.
the dump at 7:36 a.m. and that it would take a little less than 13 miri.utes for her to get to .the
dump. (Ex. R-14 p. 2). That.would place her at the dump at about 7:49. Instead, Palmer parked
her truck at the shovel. Miller testified .t hat it takes aQQut ~o minutes for a truck to dump rock.
(Tr. 342). After Palmer dumped the rock at the dump, Miller could have ordered Palmer tQ tie
down at the dump or proceed to another location. If he ordered her to proceed to a tie down
location .a nd there was not enough time to get there, Pabner would have b.e en entitled to . 9vertinle
pay. Once a driver requests to tie do~ the responsibility is on Miller to direct how that sbQuld
be accomplished. The dispatch records show that on November 5, 2004, Palmer was instructed
to go to the dump at 11 :39 p.m. and that it would take her about 13 minutes to get there. Instead,
Palmer parked her truck at the shovel. It was reasonable, given Asarco's policy, for Miller to
expect Palmer to keep driving. Thus, I find that it was reasonable for Miller to have ~oncluded
that Palmer parked too early on each ofthese dates.
The overriding issue in this case is whether Palm.er was treated diff~ently than other
drivers who have parked early and, if so, whether this disparate treatment was related to lier
protected activity. Complainant contends that all other drivers who have parked their trucks
early have been given counseling rather than discipline. Manriquez, the union president, testified
that it is very unusual for a manager to give a miner a verbal warning without first having _
counseled her. (Tr. 160). He stated that he was not aware of any counse~g .given to Palmer Qn
this subject prior to her verbal warning. Palmer testified .that prior to October 27, she has never
been given any counseling for parking too early. (Tr. 26-27).

As stated above, Daryl Neely testified that Miller has accused him of parking about 25 .
minutes early. Miller simply told him not to do it again. (Tr. 91 ). Neely testified that on another
occasion, he and two other drivers were told that they parked too early. These drivers were
called to a disciplinary meeting with Chroninger and Miller, but they were not issued any formal
discipline. (Tr. 92). Lonny McNavage testified that Miller has told him that he parked too early
on about six occasions. (Tr. 115). In none ofthose instances did Miller discipline him. Finally,
Complainant points to Sal Hernandez, who parked early on October 27, 2004, without being
disciplined or counseled.. (Tr. 27-28).
Asarco contends that these instances do not establish disparate treatment. For example, it
states that McNavage often discussed whether.he had time to dump with Miller over the radio.
(Tr. 119-20). When Miller called him on the radio, McNavage always resp~nded and stated his
case f<?r parking where he was. McNavage testified that sometimes Miller·let him park and other
times he did not. Id. McNavage acknowledged that Miller, as the supervisor, makes the ultimate
decision. (Tr. 120). Miller gave pex:mission for Hernandez to park early on ~ober 27. When .
Miller rejected his delay code, Hernandez called Miller over the ra4io .and told Miller he was too

28 FMSHRC 682

tired to continue to operate his rig. Miller then gave Hernandez permission to tie down at the
shovel. Paimer, on the other hand, failed to respond to Miller's radio calls·and text messages.
Asarco also maintains that there are other important differences in the incidents involving
other drivers. The other drivers responded to Miller's order to continue driVing by calling him
over the radio to ask permission to ·park early. The8e drivers also acknowledged that it is Miller,
not the drivers, who make ~e decision as to when and where to park at the end of the shift. In.
those instances when a driver parked early without permission, the drivers were counseled
because they admitted that they were not allowed to park if they were ordered to keep operating.
Asarco contends that Palmer was discip,lined rather than counseled because of her attitude. First,
on October 27, she did not respond ·to Miller's radio calls or the text messages he sent to her
dispatch panel ordering her to keep driving. She simply parked her truck and did·not attempt to ·
communicate with Miller about it. Second, the day after the first occasion, she argued with
Miller about the incident. She told him that she did not park early. Asarco contends·that she
received the verbal warning because·she continued·to argue about the incident.
Complaint maintains that if Miller were concerned about Palnier' s· attifude and her
argumentative behavior, she should have been disciplined for her failure to follow orders or for · ·
insubordination. Complairum.t notes that neither the verbal warning nor the written warning state
that the discipline was given because ofPalmer's recalcitrance or because she·challenged
Miller's authority to dispatch trucks. Consequently, Palmer contends that the discipline she
actually received is inconsistent with Asarco' s claim that she was disciplined because she argued
with Miller about parking early.
·
·
As stated above, I hold that Miller was not aware of Palmer's status as an alternate safety
representative when she was given the verbal waining on October 27, 2004. Thus, if-Miller
treated Palmer differently than other drivers, it was not because of her protected· status. The
focus, therefore, is on events of November 5, 2004. ·Palmer testified at the hearing that she never
received any radio or text messages from Miller on this occasion orderiilg her to·proceed to the
Diversion Dam dump. (Tr. 47). Palmer's contemporaneous handWritten notes, however, state
that she had radio conversations with Miller that night about whether she had time fo take her
final truckload to the dump and return to the shovel. (Tr. 60-61 ). The notes reflect that Miller
ordered her to proceed to the dump. Id. Palmer stated that these notes are likely to be more
accurate than her testimony. Id. McNavage testified that he heard Palnier and Miller on the
radio "having a dispute about whether she had time to take the load to the dump or not." (Tr.
112). Palmer's recollection of important events was quite ·hazy at the hearing.
Miller testified that he gave Palmer a direct order to proceed·to the dump on November 5
and that she refused to do so. (Tr. 310). He gave her the written warning for her conduct
because she had already received the verbal warning: Id. Miller testified that if Palmer had not
received a verbal w3ming on October 27, he would not have issued a written warning for
November 5. (Tr. 310-11 ). Miller further testified that he chose not to include allegations of ·
insubordination in the written warning because the sanctions for insubordination are more severe,

28 FMSHRC 683

up to and including tei;mination. (Tr. 311 ). He stated that he wanted to ''just use the progressive
discipline route." Id. He testified that Palmer' s position as a safety representative played no part
in his decision to issue the written warning. Id.

I find that the Complainant did not establish disparate treatment. The evidence
establishes that ·Palmer was ordered to proceed to the Diversion Dam dump on November 5,
2005, and that she refused to follow this direct order. Although otliei drivers have reeeived
counseling rather than formal discipline, these other drivers were contrite abo.u t their faiiure to
follow company procedures. These drivers acknowledged that they can required to operate
their equipment until the end of the shift. .It is important ~o recogniZe that the end of thf'. shift is a
busy time for the dispatcher. As a consequence, drivers have sometimes parked their trucks
earlier than Miller wanted them to and, as a. consequence, he counseled them that they must keep
operating until they are given a tie-down designation. I credit Miller's testimony truit he was
only going to counsel Palmer on October.27 for parking early until she argued with him in front
of the crew on October 28 that she did not park early. Although McNavage and otlier drivers
may have discussed whether there was sufficient time to proceed to the dump over the radio,
there has been no showing that other drivers have directly challenged Miller's judgment and
authority. It is significant that Palmer later apologized for the way she talked to Miller.. (Tr. 56,
74, 78, 308, 374). This indicates .t hat she was hostile to his oral admomtion :i;iot to park so .e arly.
The written wanlingissued for parking early on NoverQ.ber 5 flowed directly from ·the previous
·
verbal warning. I also·credit Miller's explanation that he did not include alleg~tions of
insubordination.in Palmer's discipline because.he did not want to escalate the situation. The
written warning was issued in accordance with the system of progressive di~~pline set forth in
the collective bargaining agreement.
·
·

be

fu addition to the verbal and :written discipline, discussed above, Complaiiiant relies on .
·
other evidence of harassment. First, Palm.er contends that after she become a safety
representative, Miller frequently failed.to respond to her radio calls. (Tr. 40). Manriquez
testified that he also noticed this trend. (Tr. 152-53). In response, Asarco contends that the
evidence shows that Miller continued to answer Palmer' s radio calls, contrary to Palmer's
assertions. (Tr. 35-37).
I find that Complainant did not establish that Miller deliberately stopped answering
Palmer' s radio calls. He obviously continued to communicate with her with respect to her ]ob
duties. The evidence reveals that about 30 haul trucks operate in the pit on any given shift. .(Tr.
178, 183). The dispatcher must keep in contact with these trucks as well as other equipment
operating in the pit. Complainant did not introduce any evidence of specific instances where
Palmer attempted to contact Miller and he never responded.
Complainant also avers that Palm.er was }larassed by Miller on Januacy. 3, 2005, when she
was assigned three different trucks during a single shift. She contends that she should have b~
reassigned back to her truck once it was repaired because there were other qualified haul truck
drivers available to drive the other trucks that shift. Sp~ifically, Palmer testified that at least

28 FMSHRC.-684

four other drivers had not been assigned trucks that night because of mechanical problems. (Tr.
39). Miller testified that the other drivers were trainfang each other to operate busses ~d water
·
trucks. (Tr. 312). Palmer and Hunt believed that rainy days are not good days to pJ.'.ovide
training. Complainant argues that ''Miller failed to explain ·what sense it made to have the bus
take the time to pick up Ms. Palmer from one do~ed trU.ck and transport her by bus to truck No.
438, when the bus or water truck could have proceeded directly to truck.No. 438 with a spare
driver (to operate that truck]." (S. Br. 13). Complainant also points out that after P~er. went
home, it does not appear that Miller had any other driver pJ°oceed directly to truck 438"to move it
out of harm's way.
·
Asarco argues that the events of January 3, 2005, do not indicate animus toward Palmer's
protected activities. It contends that drivers sometimes have to operate multiple trucks during a
single shift. (Tr. 393).. It is also common knowledge that when it i:ainS, electrical problems
develop on the trucks. (Tr. 315). When Palmer first reported a problem with her truck, ~he was
allowed to sit in her truck for about an hour and a half while she was waiting for her truck to be.
worked. on. (Tr. 314). When truck 406 became available, Palmer was assigned to that truck. Id.
Her preshift examination revealed that the backup alarm was not operational on truck 406. She
was told. that she could sit in that truck until mechanics arrived to fix the backup alarm: When ·
the mechanics never arrived, Palmer was .assigned to truck 438 because itwas parked fa a bad ·
location. In addition, Palmer's truck was riot available at the time she was assigned to truck 438.
(Tr. 316). The driver of the bus who was talcing Palmer to that trucktoid Miller via the radio that
Palmer was tired and wet and that she wanted to go home sick. Mtll~r gave Palmer permission to·
go home. (Tr. 315). Miller testified that another driver moved truck 438 after Paliner left to go
·
'
·
··
·
·
home. (Tr. 316).
I agree with the Complainant that the scope of an adverse action is not limited to
terminations, demotions, and formal discipline, but rather extends to "more subtle forms of
discrimination." (S. Br. 5 quoting, Secy on behalfofLong v. Island Creek Coal Co., 2
FMSHRC 1529, 1543 (June 1980) (AIJ)). I hold that it would violate section.l05(c) to assign a
miner onerous tasks or subject a miner to other harassment in retaliation for protected activities.
Complainant contends that ''Miller's assignment of Ms. Palmer alone to conduct the preoperational inspections on three separate trucks in the pouring rain clearly constitutes adverse
action." (S. Br. 5). I find that complaint's reconstruction of the events is· speculative and
illogical. Because it was raining, many trucks were down. Four drivers were assigned to train or
be trained on other equipment at the start of the shift. I cannot draw an inference that Miller kept
assigning Palmer new trucks for the purpose ofharassing her by getting her wet. Miller could
not have known that her truck would have a problem or that truck No. 406 would have·an
inoperable backup alarm. He had already scheduled the other four drivers to specific ·training
tasks so having Palmer get started hauling rock by assigning her to truck 438 is not-illogical. The
truck was parked on a ramp. I find that Asarco's proffered business justification for keeping
Palmer operating a truck is not plainly incredtole·or implausible. See. Chacon, 3 FMSHRC
2508, 2520 (Nov. 1981 ). I find that the evidence does not establish any nexus between the
events of January·s , 2005, and Palmer's protected activities.

28 FMSHRC 685

Complainant also relies on the counseling Palmer received when she forgot to chock the
wheels on her truck after she parked it at the end of shift sometime in February 2005. Palmer
believes that she was singled out for counseliilg because she was a safety representative. Asarco
argues that, because the supervisor who counsel¢ Palmer was not aware that other drivers had
likewi~e neglected to chock their truck wheels, this incident does not establish disparate
treatment. In addition, Palmer was not disciplined in any way for thi~ event. I find that the
Secr~taty did not establish that Palmer was single~ out in this instance. Asarco requires drivers
to chock the weeks of haul trucks for safety reasons. Torres, the senior mine supervisor, credibly
testified 'that if he had noticed that other drivers did not chock their trucks, he would have .
counseled them as well. (Tr. 384-85).
·
Complainant also argues that Miller demonstrated hostility toward protected activity
when he.refused to allow another union ·safety representative, Charles Berry; to operate water
trucks. As stated above, Complainant asserts.that Miller would not assign Berry to a water truck
because Berry complained to much. Asarco argue$ that it is not uncommon for employee to
be utilized on a particular piece of equipment more than others. It also contend.$ that the .·
Secretary did not establish any nexus between Miller's preference to assign Berry to haul trucks
and .}3erry' s protected actions as a safeiy representative. It is not necessary {or me to resolye 'this
issue becau5e Berry did not file a diseriniination complaint. Berry did not testify at the.hearfug.
Complainant's point is not that Miller refused to assign Bany to water trucks beeause he WaS a
safety representative; rather,.the issue is whether he would not assign Berr}' to water trucks
because Berry complained that the roads were not kept wet e~ough to keep !fown the dust. There
is no question that dusty roads can create a safety and health hazard. ~eveJ;theless, the evid~nce
is too vague and the events are tOo far removed from the issues in this case for me to. draw. any
·
substantive conclusions.3

an

To summarize, I find that Diane Palmer engaged in protected activity as a result of her.
status as a alternate safety representative and then as a safety representative for her crew. I ~d
that the dispatcher on her crew, Bruce Miller, did not know that she was an alternate safety
representative until after he issued her a verbal warning on October 28, 2004. I find.that Miller

3

Palmer also testified that about a week before the hearing in this case she was hauling rock
to a crusher. She was in line tQ dump at the crusher when Miller reassigned her to dump the rock
at another crusher. She testified that there was a truck in line in front of her and two trucks behind
her, so it would have been difficult to get out of line. When she called Miller on the radio to tell
him, he told her to stay where she was. (Tr. 36-37). Palmer testified that Miller originally ordered
her to pull out of line just to harass her. He knew. where she was in the line and he should have
asked the truck at the back ofthe line to go to the other crush~. She believes that Miller can see the
crusher area from his control tower. (Tr. 36). Miller testified that.he can tell when a.truck is at a
crusher by looking·at the computer screen but he cannot always determine the order ofthe trucks in
the line waiting to dump. (Tr..317). He believed that Palmer was last in line, but when she called
him to tell him that she was in the middle ofthe line, he µmtiediately told her to stay there. I find
that this event does not demonstrate any animus or hostility toward Palmer's safety activities.
28 FMSHRC .686

had a reasonable good faith belief that Palmer had time to dump the rock from her truck one last
tune before the end of her shift on October 2iand November 5, 2004, and that she could have
tied down at an appropriate location before shift change. I also find that Miller issued Pahner the
verbal warning on October 28 because she shut down her truck about 21 minutes before the end
of her shift in violation of the directive on her dispatch panel, in violation of his text and radio
messages, and in violation of company.policy and because she continued to maintain, in an
argumentative fashion, that she did not shut down early. I find that Miller issued Palmer the
written warning on November 5 because she shut down her truck about 21 minutes before the
end of her shift in violation of the directive on her dispatch panel, in violation of his text and
radio messages, and ih violation of company policy and because she had already received a
verbal warning. fu addition, I find thatComplainant did not establish disparate treatment of
Palmer by Miller or Asarco. Consequently, I conclude that a preponderance of the evidence
establishes that Asarco disciplined Palmer for reasons unrelated to her protected status or her
protected activities. Finally, I find that the other examples of alleged harassment or animus
presented by Complainant do not help to establish that Asarco discriminated against her in
violation of section 105(c) of the Mine Act. Of course, my findings in this case do not relieve
Asarco from its obligation to comply with the provisions of section 105(c) of the Mine Act. ·
Asarco may not retaliate or discriminate against Palmer or any miner for exercising any of their
statutory rights.4

ID. ORDER·
For the reasons set forth above, the discrimination complaint filed the Secretary of Labor
on behalf of Diane Palmer against Asarco, Inc., under section 105(c) of the · e Act is
DISMISSED.

Richard W. Manning
Administrative Law Judge
Distribution:
Satoshi Yanai, Esq., Office of the Solicitor, U.S. Department of Labor, 350 South Figueroa Street
Suite 370, Los Angeles, CA 90071-1202
Mark N. Savit, Esq. and Donna M. Vetrano, Esq., Patton Boggs LLC, 1660 Lincoln Street, Suite
1900, Denver, CO 80264-1901

4

According to Muetchler, the discipline Palmer received in 2004 can no longer be
considered in any future discipline against her under the terms ofthe collective bargaining agreement
because it was issued more that a year ago. (Tr. 237).
28 FMSHRC 687

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, b:c. 20001

July 13, 2006
CIVIL PENALTY PROCEEDINGS

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

Docket No. SE 2005-301-M
A. C. No. 01.:02936-63063

v.

Docket No. SE 2006-131-M
A.C. No. 02-02936-78967

HOSEA 0 . WEAVER & SONS, INC.,
Respondent ·

Docket No. SE 2006-167-M
A.C. No. 01-02936-83942
Plant#l

ORDER CONSOLIDATING PROCEEDINGS
ORDER DIRECTING RESPONDENT TO ANSWER
ORDER DENYING RESPONDENT'S MOTION FOR SUMMARY DECISION
AND
ORDER GRANTING PETITIONER'S MOTION FOR SUMMARY DECISION
In these civil penalty proceedings the Secretary of Labor (Secretary), on behalf of her

Mine Safety and Health Administration (MSHA), petitions to asses~ Hosea 0 . Weaver & Sons
(Weaver) civil penalties for three alleged violations of the Secre~'s mandatory training
standards found in Part 46, Title 30, Code of Federal Regulations (C.F.R), and for ten alleged
violations of various mandatory safety and health standards for metal and nonmetal mines found
in Part 56, Title 30, C.F.R.
ORDER OF CONSOLIDATION

The parties have moved for consolidation of the cases. The motion is GRANTED. The
three dockets are CONSOLIDATED for hearing and decision.
ORDER DIRECTING RESPONDENT TO ANSWER

A review of the record in Docket No. SE 2006-167-M indicates Weaver has yet to file an
answer. Weaver is ORDERED to do so ~thin 30 days of the date oftl_:iese orders.

28 FMSHRC 688

THE SUMMARY DECISION MOT.IONS
Cross motions for swnmary decision have been filed in Docket No. SE 2005-301-M. In
moving for the consolidation of Docket No. SE 2005-301-M with Docket Nos. SE 2006-131-M
and SE 2006-161-M, the parties have made clear the motions apply to the latter two dockets.
Accordingly, I will treat the motions as having been filed in all three dockets.
In its motion, Weaver challenges the Secretary's jurisdiction over i~ plant. The company
denies it owns or operates a "mine" as that word is defined in section 3(h)(l) of the Mine Safety
and Health Act of 1977 (Mine Act or Act). 1 30 U.S.C. § 802(h)(l). Therefore, in Weaver's
view, MSHA is without authority over its operation.
Rather than a "mine," Weaver contends it operates an OSHA-regulated manufacturing
facility, that it complies with OSHA standards and that it trains its workers pursuant to OSHA
requirements. 2 Weaver asserts that the subject facility, Plant No.l, is one of three hot mix
asphalt plants it owns and operates. At the plant, Weaver produces asphalt for commercial sale.
The asphalt is used in highway and road construction. Resp. Mot. 2. In manufacturing asphalt,

Section 3(h) (1) states:
"[C]oal ~r other mine" means (A) an area·ofland from
which m.4ierals are extracted in nonliquid form ... (B)
private ways arid roads appurtenant to such ~ and (C)
lands, excavations~ underground.passageways, shafts,
slopes, tunnels and working structures, facilities, equipment,
machines, tools, or other property, including impoundments,
retention dams, and tailings ponds, on the surface or underground, used in, or to be used in, or resulting from, the
work of extracting_such minerals from their natural
deposits in nonliquid form . .. or used in, or to be used
in, the milling of such minerals, or the work of preparing
coal or other minerals, and includes custom coal preparation facilities. in making a detemiination of what
constitutes mineral n;rilling forpwposes of this [Act], the
Secretary shall give due coii.sideration to the convenience
of administration resulting from the delegation to one
Assistant Secretary of all authority with respect to the
· health and safety of miners employed at one physiCal
establishment.
2

While Weaver acknowledges it has been inspected by MSHA four times since
1993, it maintains that it ''never has acquiesced to MSHA jurisdiction.,, Resp. Mot. 2.
28 FMSHRC 689

Weaver utilizes gravel, which it purchases on the open market, primarily from one gravel
company.
After delivery to Plant No. 1, the gravel is stockpiled. The gravel is used as delivered in
the asphalt manufacturing process, or, depending on the hot mix formulation, the gravel is
crushed into smaller sizes before it is added to the hot asphalt mixture. Less than 4.5% of the
plant's iotal hot mix asphalt production involves the use of crushed gravel. Resp. Mot. 3. None
of the company' ~ 165 workers are involved in the extraction or production of minerals and noneare required to enter any mines or other work sites where minerals are extracted or produced. Id.
In sum, Wcaver argues that ''because it does not engage in mineral extraction, 'production or
milling at Plant [No.] 1 .. . and because [Weaver] does not utilize raw, unprocessed minerals in
its manufacturing process ... [Wcaver] is entitled to judgement [on the jutj.sdictional issue] as a
.
matter oflaw". Resp. Mem. of Law 2.
The Secretary counters that undisputed material facts establish MSHA has jurisdiction
over a part of Weaver's operation. The Secretary acknowledges that Weaver buys raw 9i16-inch
to 2-inch gravel from an outside company. She agrees that Weaver uses the gravel for asphalt
production. She emphasizes that although the gravel is ~ed, screened and washed by the
gravel company; after it is delivered to a stockpile on Weaver' s properly, Weaver at times moves
the gravel approximately 100 feet by front end loader to the hopper of a crushing and screening
plant [3] where Weaver crushes and sizes the gravel. Sec. Mot. 2-3. The crushed and sized·gravel
is then moved approximately 300 feet by front end loader to Weaver's·hot mix plant. Sec. Mot. 3.
The Secretary is not asserting jurisdiction over the delivery of &favel t(>' W~a~er' s facility or over
its use in the asphalt hot mix plant. Rather, she is asserting Mine Act authority over Weaver's ·
crushing and screening operations, including the front end loader used to transpoi:t the
unprocessed gravel to the hopper and the processed gravel to the hot mix plant ·
RESOLUTION OF THE JURISDICTIONAL ·1sst:E

The parties agree if MSHA has jurisdiction over the crushing and screening plant and the
front end loader it is by virtue of the fact that the transportation, crushing and sizing of the grav:el
is "milling" within the meaning of section 3(h)(l) of the Act. Section 3(h)(l) includes within the
definition of"'coal or other mine'' equipment, machines, tools, or other property . . . used in .. .
the work of extracting . . . minerals ...or used in, or to be used in, the work of rililling ... such
minerals." The section gives the Secretary the duty of determining ''what constitutes mineral
milling." See Sec. Mot. 6. The Secretary points out she has exercised that duty in an Interagency
Agreement (Agreement) between MSHA and the Occupational Safety and Health Administration
("OSHA"). 44 Fed. Reg. 22, 827 (April 17, 1979), amended by 48 Fed. Reg. 7, 521 (Feb. 22,
1983). The Agreement states that ."milling consistS of one ofmore of the following processes:
crushing, grinding, pulverizing, sizing" . ..." 44 Fed. Reg. at 22829. "Crushing'' is defined as
3

The "crushing and screening plant" is also referred to by the Secretary as the
"crushing and sizing plant". Resp. Mot. 3.
28 FMSHRC 690

''the process used to reduce the size of mined materials into smaller relatively coarse particles."
Id. "Sizing" is defined as ''the process of separating particles of mixed sizes into groups of
particles of all the same size, or into groups in which particles range between maximum and
minimum sizes." Id. 22829-30.
.

.

.

I conclude that application of the Agreement and the exercise of deference resolve .the
issue. The parties are in accord that, depending upon customer specifi~ons, some of th~ gravel
must be crushed and sized before it is us.ed in the a5phalt manuf3cturing process and that Weaver
does this crushing and sizing. As noted, the temi ''miUing" is defined in the Agreement aS
including crushing and si:zlng. Id. at 22829. "Crushing" is further defined as ''the process ·u sed to
reduce the size of mined materials into smaller~ relatively coarser p3rticles."-fd. "Sizllig'' is ·
defined as "the process of separating particles of mixed sizes into .·.. particles of all the same
size, or into ... particles [which] range between maxinlum and minimum sizes." Id. The parties
agree that at the plant the gravel is "reduced in size," that is to say, it is "crushed." They also ·
agree it is "separat[ed]" into Yi- inch size particles, that is to say, it is "sized." These processes
correspond exactly to the activities the Agreement brings within the periinetets of the Act.
Not surprisingly, Weaver takes issue with this simple analysis. The co~panypo~ts to .
Appendix.A of the Agreement, which states milling requifes "sep3.ration of on¢ ·o r.more valuabfo .
desired constituents of the crude from the undesirable contaminants with which it is 3Ssoci3.ted." ·
44 Fed. Reg. at 22828. Weaver emphasizes that its cnishing and sizing of gravel does not
involve the "separation of one or more valuable desired constituents .. . from . .. undesired
contaminants". Id. Weaver describes its work as "simply custom sizing to m~t manufacturing
specification for. asphalt products." Resp. Mem. ofLaw 7.
·
·

a

Despite the fact that no separation on constitl,lents takes place ~t W~ver's fa~ilities, I
believe that Weaver's crushing and sizing comes within the Agreement. The Commission has
noted the statement in Appendix A regarding "separation of one or more valuable desired
constituents from crude" is "not the only relevant definitional provision" and that the "general
definitions" in the Agreement -- in this case, the references to "crushing" and "sizing" - may be
determinativ~ when resolving a jurisdictional issue. Watkins Engineers & Constructors, 24
FMSHRC 669, 673-674, 675 (July 2002). Thus, I return to the main point, which is that Weaver
engages in activities that clearly come within the definition of ''milling" and, therefore, which
bring it within MSHA's jurisdiction.
I further find that additional factors buttress MSHA's assertion ofjuri$diction. First,
when resolving jurisdictional questions of this sort, the benefit of the doubt goes to the Secretary.
As the Commission stated in Watkins, "Congress clearly intended.that ... jurisdictional doubts
be resolved in favor of coverage by the Mine Act. 24 FMSHR.C at 675-676 (citing S. Rep. No.
95-181, at 14 (1977) reprinted in Senate Subcomm. On Labor, Comm. On Human.Res ..,
Legislative History ofthe Federal Mine Safety and Health Act of1977, at 602 (1978)).

28 FMSHRC 691

A second, and related factor is that, as the Secretary correctly points out, the courts and,
by implicatio~ the Commission and its judges, have been reluctant to second guess the Secretary
when she makes choices involving MSHA and OSHA coverage. She is the one whose duty it is
to administer the acts and wh~ in the course of her administration, she makes informea and
reasoned jurisdictional determinations, judicial decision makers have been wary of ovenuling
her. See Sec. Mot. 7.

In this instance, the Secretary has made an informed and reasoned determination. She
states that MSHA's expertise with the inspection and regulation of crushing and sizing
equipment at rock quarries extracting gravel - equipment identical to the subject equipment gives MSHA the best background for the effective inSpection and regulation at the subject
facilities. Sec. Mot. 12-13. She further states the fact that Weaver's crushing and sizing
operation is separate from the asphalt hot-mix plant provides a clear line of demarcation between
MSHA and OSHA jurisdiction. These are informed and reasonable administrative
considerations to which Weaver has no effective rejoinder.
Third, Weaver's assertion that if its re-sizing of gravel is "milling," the milling is
minimal and is not subject to MSHA's jurisdiction, is not persuasive. Weaver Mem. of Law 6-7.
Although the Secretary counters that the Act does not contain an exception for "so called 'de
minimis' milling operations," I need not reach that issue. Sec. Resp. 2. Rather, I hold the subject
activities are not de minimis in the context of Weaver's overall operation. See Sec. 's Response to
Resp.'s Mot. 1-3. The subject crushed and screened gravel is used in making the plant's reason
d'etre, hot-batch asphalt. Of the six employees working at Plant No. 1, two ar~ involved in the
gravel crushing process, and one works around the crusher. Resp. Mot. 4, 11. Further, crushed
gravel must be incorporated into the hot mix asphalt to meet certain customers' specifications,
and the crushed gravel compiises up to 18% of the total amount of gravel incorporated. Id. 5, 10.
These are not trifling or insignificant considerations. Even if, as Weaver maintains, only 4.5 %
of the plant' s total asphalt output involves the use of crushed gravel, active involvement of three
of six employees of Plant No. 1 in crushing and sizing entitles those employees to the regulation
the Secretary deems most effective for their safety. ·
For these reasons, I conclude MSHA properly exercised its jurisdiction over the crushing
and screening operation at Weaver's Plant No. I. Weaver's motion for summary decision is
DENIED. The Secretary's motion is GRANTED, but only to the extent it involves the
jurisdictional issue. The Secretary's allegations regarding the existence of the alleged violations
and the penalty aspects of the cases remain to be resolved.

J>~(fA~
Administrative Law Judge

(202) 434~9980

·.
28 FMSHRC 692

Distribution:
Amy R. Walker, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street, S.W.,
Room 7110, Atlanta, GA 30303
Adele L. Abrams, Esq., Law Office of Adele L. Abrams, P.C., 4640 Corridor Plac·e, Suite D,
Beltsville, MD 20705
/ej

28 FMSHRC 693

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, D.C. 20001

July 18, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA),
Petitioner

CIVJLPENALTYPROCEEDING
Docket No. WEVA 2005-209
_A;C. No. 46-08939-63450

V.

ARCH OF WEST VIRGINIA,
Respondent

. Guyan

ORDER DENYING MOTIONS FOR SUMMARY DECISION
BACKGROUND
This civil penalty proceeding involves the application of mandatory safety standard 30
C.F.R. § 77.404(a) to off-the-road (OTR) tires on haulage trucks. .T_he standard &tates that
"mobile and stationary machinery and equipment shall be maintained in safe operating condition
and machinery or equipment in unsafe condition shall be removed from service immediately."
On May 9, 2005, Jerry Robertson, an inspector from the Secretary of Labor' s Mine Safety and
Health Administration (MSHA), issued three citations to Arch of West Virginia (Arch) asserting
that the company violated section 77.404(a) by failing to -m~tain haulage truck tires in safe
operating condition. The citations charge that one tire on each of three cited trucks was "worn to
the 41h steel belt". Subsequently, the Secretary petitioned for the assessment of civil penalties for
the alleged violations. Arch denied it violated the standard, and the matter was assigned to me
for hearing and decision.

IRE MOTIONS
The parties have filed cross motions for summary decision. Arch argues that in issuing
the citations, MSHA has imposed a new enforcement policy for section.77.404(a), one about
which Arch did not have fair notice. According to Arch, under that policy an MSHA inspector
who examines tires on OTR heavy equipment, must cite a violation of section 77.404(a), "[i]f the .
first two protective plies of [OTR] tires . .. are worn through". Resp. Mot. 3 (citing Exh. 4
(Robertson Deposition 18)). Jn Arch's view, because "the enforcement standard MSHA applied
has never been expressed by the agency'', the three citatfons must be vacated. Id.
The Secretary argues that she is the one entitled to s.ummary decision. She asserts Arch
was aware of the requirements for compliance with section 77.404(a), but none the less clearly
violated the standard. Because the three tires were unsafe, they should have been removed from .
service, and they were not.
28 FMSHRC 694

ARCH'S MOTION IN MORE DETAIL

In the motion Arch gives its version of what happened at its mine during the May 9
inspection and its view of the background against which the inspection took place. According to
Arch, on May 9, Robertson inspected 25 to 30 pieces of heavy equipment. Each piece of
equipment had four to six tires.· Of the 100 to 180 tires inspected, Robertson found three in
violation of section 77.404(a). Resp. Mot. 8. At the time of the inspection Arch had in place an
OTC tire maintenance/inspection program that involved four levels of inspection and
maintenance. Id. 5-7. According to Dennis Stilley, Arch' s Maintenance Planner, under the
program a tire was taken out of service when "a tire [was] worn into the steel belts" and/or when
a tire "exhibit[ed] sidewall cuts [or] smooth tread". Id. 7 (citing Stilley Deposition 48-51). Arch
states when its Manager of Maintenance, John Metzger, had doubts about whether a tire was
safe, he would "contact the representative of the tire's manufacturer, and ask him to come to the
mine and examine the tire to made recommendations as to whether the tire·[could] be safely
used." Id. 8 (citing Metzger Dep. 19-20). During his contacts with manufacturers'
representatives, Metzger never was told about an out-of-service criteria as it related to the wear
on OTR tires, nor had he ever heard any of the representatives express knowledge of a ''two belts
and out" standard for tire removal and replacement. Id. 8. In addition, when Robertson wrote the
citations he did not mention of the ''two belts and out" standard, nor did·he ask Metzger about
Arch's tire inspection/maintenance program. Resp. Mot. 9.:.10.
Arch also notes that Robertson stated that he did not measure the tread depth of the.cited
tires. Rather, he visually inspected the tires and counted the number of belts that were worn on
each tire. Resp. Mot. 11 (citing Robertson Dep. 70-71 ). His only concern was whether belts one
and two are worn through, and he did not think about anything else when considering whether
the tires should be removed from service. Id. (citing·Robertson Dep. 95).
Arch argues that MSHA is required to '1>ublish standards that are ascertainable to the
regulated community and give ' fair notice' of the agency's intexpretation of those regulations."
Resp. Mot. 12 (citing Alan Lee Good, an ind. d.b.a. Good Constr., 23 FMSHR.C 995 (September
2001)). Arch asserts that the standard itself provides no notice of the ''two belts and out"
removal criteria, that Robertson provided no notice, and that MSHA's Program Policy
Memorandwn (PPM) and other MSHA publications do not mention the criteria. It also asserts
there were no prior citations issued at the mine for violations of the criteria. Id. 13-14. Indeed,
according to Arch, the first time it learned of the criteria was when Robertson referred to it
during his deposition. Id 14.
Arch states that the question of fair notice must be decided on the basis of application of a
"reasonably prudent person test", to whit, whether "a reasonably prudent person familiar with the
mining industry arid the protective purposes of the standard would have recogni.Zed the specific
prohibition or requirement of the standard." Resp. Br. 16 (citing Ideal Cement Co., 12 FMSHRC
2409, 2416(July1990)); BPH Materials Int'l Inc., 18 FMSHR.C 1342, 1345(October1996)).

28 FMSHRC 695

Arch argues it had a "reasonable and safe tire program in place" and that it "reasonably relied
upon [its] criteria for OTR tires, i.e., when the :first steel belt is visible, the maintenance
personnel schedule for tire.replacement and continue to watch and inspect the tire until
replacement." Id. 17, 19.
Finally, Arch asserts it reasonably relied on "'established safety standards for OTR tires"
and mine specific safety factors such as the fact that its roads were graded daily to·reduce tire
wear. Id. 20-23; Arch also cites the report of its eipert, James K: Sprague, a vice president of
Packer Engineering, Inc., in which Sprague expresses his opinion that the tires were safe.
Id. 26-28.

THE SECRETARY'S MOTION IN MORE DETAIL
The Secretary asserts that Robertson cited the subject tires because he was concerned
about blowouts and their potential to cause injury to drivers and nearby niiners: Pet. Resp. 5. The
Secretary references the opinion of her expert, James Angel, a mechanical engineer with
MSHA's Approval and Certification Center, that OTR tires with worn steel bel~ are more likely
to fail by rupture than by slow leak. Id. 13 ·citing AD.gel Dep: 42-43, 54).
·
Two of the tires were made by Michelin and·one was·made by Bridgestone. ''To ensure
that the construction and safety features of [OTR] tires were consistent with his understanding",
Robertson called the Michelin representative "and explained that. four belts had been breached
and [Robertson] wanted to know when the tiies should be taken out of service." Id. 4 (citing
Robertson Dep. 34). Acc<;>rding to the Secretary, the representative told Robertson "that a tire
should be removed from service when the top two belts were worn through.'' Id. .Although Arch
had notice of the unsafe condition of the tires through reports made to mine management by ·
miners, mine management, as represented by Metzger, did not think that tires worn to the fourth
of the six belts were unsafe. Id. 6-7 (Citing Metzger Dep. 52, 80).
Jn the Secretary's view, Arch either knew or should have known better. The Secretary
points to the deposition of Jack Wamoc}4 an employee of Bridgestone, who stated that once the
structure belts of OTR tires are exposed, the tires should be removed from service. Pet. Resp~ ·9
(citing Warnock Tr. 28). According to Warnock, this'is the tire removal criteria of the Rubber
Manufacturers Association, and it is a criteria that it is recognized by "all of the tire industry". Id.
Further, the Secretary notes Warnock's assertion that in 2004 and 2005 ·he conducted courses on
tire safety at which the removal criteria for tires was discussed and that Arch representatives
attended the courses. Id.

RULING ON THE MOTIONS .
The controlling question is whether or not Arch violated section 77.404(a). Resolution of
the question is fact driven and, as the parties recognize, must be determined within a framework
of legal principles that have long been known and applied. These principles establish that section

28 FMSHRC 696

77.404(a) imposes upon an operator two duties: (1) to maintain equipment (in this case, the cited
tires) in safe operation condition; and (2) to "remove unsafe equipment from service immediately.
Peabody Coal Company, I FMSHRC 1494, 1495 (October 1979). As the parties also recognize,
"(d]erogation of either duty violates the regulation". Id. The question of whether the cited
equipment was in unsafe operating condition is resolved on the basis ofwhether a reasonably
prudent person familiar with the factual circumstances surrounding the allegedly hazardous
condition, i.Ilcluding facts peculiar to the mining industry and the mine, would have recognized a
hazard warranting corrective action. see Alabama By-Products Corp., 4 FMSHRC 2128, 2129
(December.1982).
Applying these principles, the specific issue before me is whether, on May 9, 2006, the
cited tires were not "maintained. in safe operating condition" (30 C.F.R. 77.404(a)) because, as
stated on each citation, they were "worn to the 4th steel belt." The parties have gone to great
lengths to present conflicting.arguments on the issue. However, they have not stipu)ated to a
single fact, and the issue cannot be resolved without factual findings. While I take it as a given
that the tires are "equipment" within the.meaning of the _standard, it is not clear the parties agree
the subject tires were in the condition described by the inspector on the citations. Nor is it clear
they agree regarding the conditions·under which the subject tir~s were used and/or rC3$onably
could have been expected to be used. Because there is a component of tire safety that is relative
to their conditions of use, such factual matters may be relevant when determining whether the
tries were unsafe.
Moreover, the Secretary bears the bmden of proof, an:d it will be important for me to hear
the testimony of Inspector Robertson as to why lie .believed the particula( tires were not~ safe
operciting .condition. It also will be important.to hear the testimQny of the parties' witnesses as to
whether, given the condition of the tires as f:ound by the inspector, the .tires were in fact in. unsafe
condition and whether ·a reasonably prudent operator would have known this. All such testimony
will, of course, be subject to cross examination, which means.there will be a complete record
upon which to determine the ultimate issue.
Counsels should note in this regard that even if the testimony reveals Robertson issued
the citations as the result of his rote application ofthe "two belts and out" rule and 'even if Arch
did not have notice ofMSHA's adoption and application of the rule, this will not resolve the
issue. An inspector may issue a citation for an invalid or wrong reason, and the citation still may
be sustained if the facts establish a violation. Here the citations may be sustained if the
testimony establishes the tires were in fact ·i n unsafe operating condition and Arch either knew or
should have known it. In other words, the validity of the citations rests not on Robertson's
motives, but on the facts and whether they show that a reasonably prudent operator familiar with
the circumstances under which the particular citations were issued, including facts peculiar to the
mine involved, would have concluded the cited tires were unsafe and would have removed them
from service.

28 FMSHRC 697

A conclusion on this issue is best based on testimony that has been refined and sharpened
through cross examination and that has been subjeCted to credibility determinations. For these
reasons, the motions are DENIED. The hearing scheduled to begin at 8:30 a.m. on August 17,
2006, will go foiward as planned.

J)~/dt'~~
David F. Barbour
Administrative Law Judge
(202) 434-9980
Distribution: (Certified Mail)
Karen M. Barefield, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209-2247
Julia K. Shreve, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty
Avenue, Pittsburgh, PA 15222
/aak

28 FMSHRC 698

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, D.C. 20001-2021
Telephone No.: (202) ~
Fax No.: (202) 434-9949

July 21, 2006

CIVIL PENALTY PROCEEDING

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

Docket No. PENN 2004-157
A C. No. 36-08746-26476
QuecreekNo. I Mine

BLACK WOLF COAL COMPANY, INC.,
Respondent
SECRETARY OF LABOR,
M1NE SAFETY AND HEALTII
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 2004-158
A. C. No. 36-08746-26477 LVY

v.
Quecreek No. I Mine
PBS COALS, INC.,
Respondent

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 2004-152
A C. No. 36-08746-26478 KQN

v.
Quecreek No. 1 Mine

MUSSER ENGINEERING, INC.,
Respondent
ORDER GRANTING IN PART ANDDENYINGINPARTTHE
SECRETARY OF LABOR'S
MOTION FOR SUMMARY DECISION AND
DENYING RESPONDENTS' MOTION FOR SUMMARY DECISION

These consolidated civil penalty proceedings are brought pursuant to the Federal Mine Safety
and Health Act of 1977, 30 U.S.C.§ 801 et seq. (2000) (hereinafter the ''Mine Act" or ''the Act"), as a
result of a nonfatal entrapment accident at the Quecreek No. I Mine, located in Somerset,
Pennsylvania. They involve three alleged violations ofmandatory safety standards for llllderground
coal mines with aggregate civil penalties of$14,100.00. Unless othetwise noted, the summaries of
28 FMSHRC 699

the facts throughout this Order.are derived from the parties' joint stipulations of fact.

Background and Procedural History
On July 24, 2002,. at approximately 8:45 p.m., water broke through the working face of
the No. 6 entry of the Quecreek No. 1 Mine after a cut was made in the entry during mining
operations. The deluge came from a long~abandoned and flooded underground coal mine known
as the Harrison No. 2 Mine. The Harrison No. 2 Mine was located immediately updip (at a
higher elevation) of the Quecreek No. 1 Mine permit boundary. As a result of the inundation,
nine miners narrowly escaped and nine others were trapped in the mine. While the world .
anxiously watched, the nine trapped miners were rescued one by one approximately 76 hours
·
later, on July 28, 2002.
Under the Federal Mine Safety and Health Act of 1977 (''Mine Act"), a mine operator is
required to have an accurate map of the mine pursuant to 30 C.F.R § 75.1200. Among other
requirements, section 75.1200 requires a mine operator to show "adjacent mine workings within
1000 feet."· 30 C.F.R. §75.1200(h). Part of the investigation' s pwpose was to determine why the
workings in the Harrison ·No. 2 Mine were not shown on the Quecreek No. 1 map. ·As a result of
the investigation, the Secretary determined that the Quecreek No. 1 Mine' s section 75.1200·map
was not completely accurate because the intersected workings of the adjacent Harrison·No. 2
Mine were not shown on Quecreek No. 1 Mine' s section 75.1200 map. Consequently, MSHA
issued single citations to the three Respondents in this proceeding; specifically, Musser
Engineering, fuc. ("Musser''), PBS Coals, Inc. (''PBS''), and Black Wolf Coal Company C'Black ·
Wolf'), which was the.production operator of the mine (-collectively.' 'the Respondents''):

On November 21, 2005, both Musser and PBS filed Motions for Summary Decision in
this matter. The Secretary of Labor filed her response to the Respondents' motions and her own
Motion for Summary Decision on December 21, 2005. In support of their cross-motions for
summary decision, the parties submitted extensive stipulations and certain joint exhibits. 1 Black
Wolf did not file or join in the cross-motions for summary decision but did sign ·the joint
stipulation of facts.
The Secretary contends that PBS and Musser are liable as independent contractor operatOrs of
the mine. Musser responds that it is not an operator within the meaning of the Mine Act and,
therefore, shoilld not be held liable. PBS does not dispute the Secretary's jurisdiction; however, it
does dispute the validity of the citation.

Statement of Facts
Black Wolf's Quecreek No. 1 Mine is located in Somerset Comity, Pennsylvania At the time
of the inundation, 61.people were employed at the mine, 6 on the surface, and 55 in the mine itself.
1

The following abbreviation is used herein as a citation to the administrative record: Stip. = the
parties' joint stipulations.
28 FMSHRC 700

Stip. 24. On Wednesday, July 24, 2002, at 8:45 PM, miners w<:>rlcing.on the No. 1 entry on the I-le.ft
section during mining operations broke through the working face and caused a serious inundation.
Stip. 29. The water came from.the abandoned Quecreek No. 2 mine. Stip. 28, 29. Of the 18 miners
underground that evening, 9 were trapped. Stip. 29. Within hours the local and national media had
joined in the vigil for the trapped miners. Soon the watch spread worldwide. Not since the
Camricbaels disaster of 1962 at the Robena Frosty.Run Mine had West~ Pennsylvania's coal fields
faced a crises of this magnitude. By.the next morning, after approximately 16 hours of rising water,
the nine miners estimated. they had about an hour le.ft to live, -The entrapped min~ did what miners
do: accepted their fate and prepared for the worst Goodbye notes were written to their.families and
sealed in a bucket for recovery. But over the next few homs, the rising water slowed .and reached the
highest elevation.2 Hope returned as the rescue efforts continued. After 3 days, in a dramatic rescue
led by Federal Mine Safety and Health Administration workers, the nine trapped miners were brought
to the surface using MSHA's mine rescue capsule. MSHA Report at 30.
Quecreek No. 1 Mine
Prior to opening a new mine, mining permits ·and:plan approvals are required from state
and federal authorities, respectively. MSHA Report at 54; Stip. SO. In 1994, the Double C Cqal
Company ("Double C'') initiated .an application.to obtain a permit for:.the Quecreek No.. } .Mjne
from the Pennsylvania Department of Environmental P.rote~tio.µ (''PA DEP''). Id. MSHA Report
at 54; Stip. 50. Double C contracted with Musser to prepare a permit application.for.its
submission under the Pennsylvania Small Operato.r As$istance.Program. .MSHA report at54.
PBS acquired the project from Double C in·1995 and the project was transferred tp·Quecredc
Mining, Inc. ("Quecreek Mining~')~ a subsidiary of PBS. .·MSHA report ·at 54; Stip. 10, 21, 50. ·
PBS hired Musser to prepare the original permit application for the Quecreek No. 1 Mine. Stip.
12. This work included researching and showing the location of old min~ works adjacent to the
planned mine. Id.
The initial permit application was submitted to the PA DEP on February 28, 1998. The
permit, nwnber 56981301, was issued to QuecreekMining, Inc., on·March 13,·1999. MSHA
Report at 54; Stip. 51, 73. Black Wolf Coal Company conducted the underground mining
operations at Quecreek No. 1 and contracted with Mincoip, Inc. ("Mincorp") to perform the
mining. Stip. 23. PBS is a subsidiary ofMincotp. Stip. 9, 10, 23. Mining was conducted by the
use of remote controlled mining machines. Stip. 19. The-Quecreek No. 1 Mine opened into the
Upper Kittaning coal seam, and Quecreek Mining developed the surface area, the portals, and the
mains, which were driven down.dip from the portals. Stip. 18, 22, 32.
Harrison No. 2 Mine

In 1913, the Quemahoning Creek Coal Company opened what is now known as the
Harrison No. 2 Mine and the Saxman Coal and Coke Company ("Saxman'') subsequently
2

Some miners believed it to be about noon, Thursday, July 25th, while others estimated it to be
noon on Friday, July 26th.
28 FMSHRC·70l

purchased the mine in 1925. Stip. 28. Saxman operated the mine .until 1963, although the mine
was idle from 1934 through 1941. Id.· Prior to the mine's 1963 closure, Consol Energy, Inc.
("Consol'') owned the coal reserves and leased the resel'Ves to Saxman in exchange for monthly
royalty payments. Stip. 48, 65. Saxman also provided Consol with updated mine maps on a
biannual basis. Id. After the mine stopped producing coal in 1963, it was abandoned, sealed,
and became flooded. Stip. 54. The Harrison No. 2 Mine was located in the same seam and
immediately updip of the Quecreek No. 1 Mine permit boundary. Stip. 28, 32". In ·general, the
Harrison No. 2 Mine is located east of the Quecreek No. 1 Mine. Stip. 32.
Pennsylvania Bituminous Coal Mine Act of July 17, 1961 ("PA Mine Act")3
The PA Mine Act requirements regulate ·bituminous coal mining in Pennsylvania. Stip.
33. The PA Mine Act requires operators or superintendents of mines to survey the workings of
their mines and to create an accurate map of the mine that shows, among other items, "an
accurate delineation of the boundary lines" between theniine and "all adjoining mines or coal
lands and the relation and proximity of the working$ of said mine to all adjoining mines or coal
lands." PA Mine Act, ·52 P.S. §701-235; Stip. 34. In addition; a professional engineer or
registered professional surveyor must certify the mine maps. Id. Sections 238 and 239 of the PA
Mine Act require that the mine map be updated every six months and a copy of the updated mine
map must also be provided to the Pennsylvania Mine Inspector. PA Mine Act, 52 P.S. §§701238,239; Stip. 35, 36. The Pennsylvania Mine Inspector'is required to take custody of the mine
maps as "official records pertaining strictly to the office of mine mspector iri the district,'' and to
transfer all of the maps to his successor as district mine inspector. PA Mine Act, 52 P.$"·;· §701,_
239; Stip. 37. Within 60 days of abandonment of a mine, the 'operator or superintendent must
update the mine inspector's map and must also send the PA DEP a "complete ·original tracing or
print of the complete original map, which shall be kept in the departnient as a public document.''
PA Mine Act, 52 P.S. §701-2240; Stip. 38. Moreover, a registered professional engineer or
registered surveyor must certify that the map is a true and correct copy and a ''true, complete and
correct map and survey of all the excavations ma.de in such mine." ·PA Mine Act, 52 P.S. §701240; Stip. 39. Substantially similar provisions have existed in Pennsylvania Mine Safety Law
since 1911andin1963, when the Harrison No. 2 Mine was abandoned, mine operators were
required to supply mine closure information to the Commonwealth including a final mine map.
PA Mine Act, P.S. § 701-240; Stip. 40, "43.
Endeavors and Process in Locating Maps of Harrison No. 2 Mine
During the permitting process, it was not practical or feasible for the Harrison No. 2 Mine
to be surveyed because it was abandoned, sealed, flooded, and inaccessible. Stip. 54. Prior to
submitting the pennit application to the PA DEP, both Musser and PBS conducted searches for
maps of the abandoned Saxman Mine. Stip. 55. In the summer of 1995~ every known niine map
repository in central and western Pennsylvania was searched and five maps of the Saxman Mine
were located. Id. These included the Federal Office of Surface Mming map repository in ·
3

P.L. 659, 52 P.S. 701-101 through 701-706.
28 FMSHRC 702

Greentree, Pennsylvania ("OSM''), the Pennsylvania Department of Environmental Protection in
McMmry, Pennsylvania, the MSHA District 2 Office in Hunker, Pennsylvania, and Consol
Energy, Inc., which was the owner of the coal mined at Harrison No. 2, and the DEP ~ureau of
Deep Mine Safety (BDMS") Uniontown Office. Stip. 55, 58, 59. Musser als9 consulted Carlton
Barron ofBoswel4 Pennsylvania, who was an owner of Saxman <;oat and Coke Company.
Musser Mot. at 4. The search was conducted for mines with the·names "Saxman" and
"Harrison," since the adjacent mine.was .frequently referenced by either name. Stip. 55.
Most of the maps discovered during the searches were older and ofno practical use. Stip.
62. Two maps located during.the search, however, were used.for permitting the Quecreek No. I
Mine. Id. PBS and Musser located a map of the Harrison No. 2 Mine at the OSM repository in
Greentree, Pennsylvania. Stip. 63. This map was not dated, marked final, or certified by a
professional engineer or professional surveyor. Id. It depicts the general mine workings of the
Harrison No. 2 Mine.· Id. .Unknown to Musser and PBS, a frame of the legend portion .o f this
map is dated 1957. Id. This map was not indexed properly in the OSM archives ~d was not
located in the searches performed at Musser's and PBS's request. Id. The Greentree map w.as
the most current map of the H~son No. 2 Mine available at either the state or federai mine map
repositories. Stip. 64.
Musser also contacted Consol Energy Inc., in µbraiy, Pennsylvania and requested a copy
of any maps of the Harrison No. 2 Mine that Consol bad available. Stip. 65. Because Consol
previously owned the coal reserves at the H~son No. 2 Mine and was entitled to royalties on all
coal removed from the mine, -M usser expected that Consol :would have had accurate maps. of the
Harrison No. 2 Mine. Id. A Consol employee located a copy of the Harrison No. 2 Mine and
provided a copy to Musser. Id. PBS also received a copy of this map. Id. The Consol map .is
not dated or marked final, and
map_is not certified by a professional engineer or professional
surveyor. Id.

*e

The Consol map -showed the most extensive mining in the Harrison No. 2 Mine that was
located, and Musser believed it to be the final map. Stip 66. Musser, with the concurrence of
PBS, used the Consol map to plot the boundary of the Harrison No. 2 Mine on the Quecreek
Mine permit maps. Id. The plot ofthe boundary led to the extent of the development limits for
the Quecreek No. 1 Mine, leaving a 200-foot banier with the Harrison No. 2 Mine based on the
Consol Map. Id. Edwin Secor, a Musser employee, certified the permit map with a seal. Id.
Records indicate that John E. Kimmel, the superintendent and engineer at the Harrison
No. 2 Mine, supplied mine closure information and final maps to the Commonwealth prior to
1961 and that he also gave a final map for the Harrison No. 2 Mine to C.H. Maize, the
Pennsylvania Mine Inspector, in 1964. Stip. 44 and 45. The MSHA.investigation team found no
evidence that Mr. Kimmel failed to comply with the Pennsylvania mine closure requirements.
Stip. 46. Nonetheless, the PA DEP did not have the final mine map of the Harrison No. 2 Mine
available in its archives when the Quecreek No. 1 Mine was pl~ed and permitted, and a final
mine map was not found until after the accident at the Windber Coal Heritage Center ("Windber

28 FMSHRC 703

Center"). Stip. 47.4 This map, however, is not certified by a professional engineer or surveyor.
Stip. 83. A certified final map for the Harrison No. 2 mine has not been fomld. Stip. 85. The
room that the Black Wolf miners broke intO is not on any map yet fmmd. Stip. 94. However, using
the Windber map, the 200 foot buffer zone enforced by law would have included the abandoned
workings, and likely prevented the inmldation
As a result of its investigation, MSHA issued a Significant and Substantial ("S&S'1 Section
104(a) Citation, No. 7322481, to Black Wolf, alleging a violation of30 C.F.R § 75.1200 with "low''

negligence. MHSA issued a Section 104(a) S&S Citation, No. 7322487, to·Musser alleging a
violation of 30 C.F.R. § 75.1200 with ''moderate" negligence. PBS was also issued' a Section 104(a)
S&S Citation, No. 7322488, by MSHA, alleging a violation of 30 C.F.R. § 75.1200 with "moderate"
negligence. The standard provides:
The operator of a coal mine shall have in a fireproof repository located in an area on the
surface of the mine chosen by the mine ~erator to minimize the danger of destruction by
fire or other hazard, an accurate and up-to-date map of such mine drawn·on scale. Such
map shall show:
·
··
(a) The active workings;
(b) All pillared, worked out, and abandoned areas, except as provided in this section;
(c) Entries and aircourses with the direction of airflow indicated by arrows; ·
(d) Contour lines of all elevations;
(e) Elevations of all main and cross or side entries;
(t) Dip of the coal bed;
(g) Escapeways;
(h) Adjacent mine workings within 1,000 feet;
(i) Mines above or below;
G) Water pools above; and
(k) Either producing or abandoned oil and gas wells located within 500 feet of such mine
and any undergro\Uld area of such mine; and,
(1) Such other information as the Secretary may require. Such map shall identify those
areas of the mine which have been pillared, worked out, or abandoned, which are
inaccessible or cannot be entered safely and on which no information is available.
30 C.F.R § 75.1200.
The citations were properly served to all parties.

Discussion
4

The Windber Center map was donated to the museum in June 2002 by Inspector Maize's
granddaughter. Evidently, she found the map among his personal effects after he died. Stip. 84.
28 FMSHRC 704

The Mine Act provides, in pertinent part, ''the first priority and concern of all in the coal or
other mining industry must be the health and safety ofits most precious resource - the miner' and "it
is the purpose ofthis Act to.direct . . ~ the Secretazy of Labor to develop.and promulgate improved ..
mandatory and health or safety standards to protect the health and safety of the Nation's coal or other
miners" and to require that each operator of a coal or other mine and every miner in such mine
comply with such standards." 30 U.S.C. § 801(a)(g) (ei.nphasis added).
The standard for pting summazy decision is set fort:h in Commission Rule 67(b), which
provides that, [a] motion for summary decision shall be granted only if the entire record, including the
pleadings, depositions, answers to interrogatories, admissions, and affidavits, shows: (1) thafthere is
no genuine issue as to any material fact; and (2) that the moving party is entitled to sun;unazy deciSion
as a matter oflaw." 29 C.F.R § 2700.67(b).
Regarding Black Wolf, if,a non-moving party fails to establish sufficient evidence of an
essential element to its claim, on which it bears the burden ofproaf: there is no genuine issue of
material fact and the moving party is entitled to summary decision. Celotex Corp. v. .Catr~, 477
U.S. 317, 322-23 (1986). The court is required, in reviewing all of the evidellce the recoid, to
draw all reasonable inferences from the underlying facts in the light most favoral)le to the non-moving
party.. Reves v. Sanderson Plumbing Products, Inc., 530U.S. 133, 13~ (2000); ,Matsuchi Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986).

on

The parties have stipulated to the~ facts, 3'1d,.therefore, the first prong of29 C.F.R .
§ 2700.67(b) is met, provided those facts can provide a sufficient factual basis for.a decision.. Based
on the stipulated facts and my reasons outlined below, I conclude that the Secretary is entitled to
partial summaryjudgment as a matter oflaw.

A

Whether PBS Violated Section 75.1200

PBS presents a sub-issue as to whether the Secretmy properly charged a violation of
section 75.1200. First, it argues that the language "accurate and up to date" does not apply to
"adjacent mine workings because under a plain reading of the regulation, the language "an accurate
and up to date map of such mine" refers to the operator's mine, not adjacent mine workings within
1,000 feet, as it relates to the Harrison No. 2 Mine. PBS Memo of Law at 22. Also, within this
sub-issue, PBS argues that the Secretary's interpretation is contrary to the pl$ meaning of the text;
the Secretary's interpretation is inconsistent with her overall regulatory scheme, averring, in
particular, that section 75.1200-2(b) requires an operator to use an accurate method of smvey to
produce a map, while section 75.1200 presents an operator with the impossible task of accurately
smveying an inaccessible and abandoned mine; and the Secretary's interpretation would lead to the
absmd result ofrequiring an operator to accurately depict inaccessible, abandoned mine workings. Id.
at 21-23. Thus, an adjacent mine, according to PBS, is not subject to the section 75.1200 map
28 fMSHRC 705

requirement because a mine operator cannot accurately map the mine working8 of another mine,
particularly one that has been closed for years. Id. PBS further argues that the Secretary's
interpretation of the standard is not reasonable as she requires an operator to depict with survey
accuracy the location of abandoned mine workings for which such maps are not available. · Id. at 2728. PBS argues in the alternative that, even if the Secretary atgues the language is ambiguous, she
should not be afforded deference because her interpretation is unreasonable. Id. at 26-27. ·Finally,
PBS avers it was not on notice that "accurate and up to date" applied to its mapping ofthe Harrison
No. 2 Mine. I note that PBS does not contest its status as an "operator" tinder the Act. Id. at 28.
When the breakthrough accident occurred, the operator's mine map showed that the
Harrison No. 2 Mine was located approximately 450 feet away. PBS's Section 104(a) S & S
Citation. In reality, given that the workings of the Harrison No. 2 Mine were actually intersected,
it logically follows that the mine was much closer. To say that the operator's map was inaccurate
would be an understatement. If the operator's map were accurate, the Harrison No. 2 Mine
workings would not have been intersected becaus~ the Harrison No. 2 Mine really would have
been approximately 450 feet away, as indicated on the operator's map.
·
The Secretary argues that she properly issued the citatio~ because, Uii.dt; ·a plain reading ofthe
regulatory text, PBS was required to show a complete and accurate map of adjacent mine workings
within 1,000 feet, which PBS did not do. Thus, a violation occurred, resulting in the issiiance of the
subject citation. Sec'y Br. at 7-8. The Secretary concedes that the "level of aCcuracy'' for :;tn inactive,
abandoned mine would be different from that of an active mine. Id. at 11. However, she notes that a
duty to depict inactive, abandoned mine workings still exists, and should be·depicted with ·~e most
recent and reliable evidence ofwhat existed," and wherever there is doubt, such doUbt should be
indicated on the map. Id. Such indication could be made by using a dotted line or simply stating
"unknown" on the map. Id. Regarding "notice," the Seeretary avers PBS's argument is without merit
because the plain language of the regulatory text was notice enough, and a '4reason2bly prudent
person" would know the provision applies to the situation. _Id. at 13.
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, 83 (D.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.
Where the language of a regulatory provision is clear, the terms of.that provision must be
enforced as they are written 1.inless the ·regulator clearly intended the words to have a different
meaning or unless such a meaning would lead to absurd results. Island Creek Coal Co., 20
FMSHRC 14 (Jan. 1998). In addition, ambiguity exists when a statute is capable of being
understood by reasonably well-informed persons in two or more different senses. Norman J.
Singer Statutory Co'!Struction, § 45:02 (5th ed. 1992). .
I conclude, as have both parties, that the language of section 75.1200 is clear and
unambiguous and warrants a plain meaning interpretation. Accordingly, no discussion of Chevron,

28 FMSHRC 706

467 U.S. 837 (1984) deference to the Secretaiy is necessary.5
.Section 75.1200 states in pertinent part, ''the operator of a coal mine shall have ... an
accurate and up-f0..¢ite map of such mine . . . [s]uch map shall show ... [a]djacent mine
workings within 1,000 feet." PBS, in its reading of the regulation, disjoints the "adjacent
mine worldngs" clause. The Secretary is correct in stating that this phrase should be read as one of
"12 classes of information" required to be included on the map. Sec'y Br. at 7. The language "such a
mine" does refer to the operator's mine, as proffered by PBS. PBS Memo ofLaw at 22. However,
the 12 items following the clause stipulate what additional information is to be included on that map,
such as a bordering abandoned mine. Tht;re can only ~e one meaning for"[s]uch map shall show .. .
[a]djacent mine workings within 1,000·feet" The map of the mine operator's mine must do just that:
show the location of applicable adjacent niine worlcings.
PBS asserts that the Secretary is requiring it to have accurate and up-to-date mapping of
the adjacent mine (in this case, the Harrison No. 2 Mine) and cites the language of the ci4ltion,
not the regulation, to emphasize this point. PBS Memo of Law at p. 22. Consequently, the only
ambiguity is in the wording ofthe citation itself, as PBS is misinterpreting it to mean that the
Secretary "is requiring 'accurate and up-to-date' information r~garding the workings of the
abandoned Harrison No. 2 Mine on the section_1200 map." PBS Memo of Law at P- 22. _This is
incorrect. The Secretary maintains that the Quecreek No. 1 Mine Map was inaccurate because it
failed to show the existence of adjacent mine workings within .1,000 feet Sec'y Response at 5,
7. While the citation itself may be awkwardly worded, the issue here is the language of the
standard, which is designed to put operat~rs on :notice as to a requirement before_an accident
occurs, as opposed to a citation, which penalizes after the fact. There is no ambiguity here.

The Secretary's interpretation is not contrary to her overall regulaiory scheme. As the
Secretary cor.rectly states, the map could have been drafted in SU.ch a way as to show uncertainty and
still be considered "accurate." Ifthere bad been some indication on the map that the location ofmine
workings in the Harrison No. 2 mine were unknown, the miners would most certainly have
proceeded with more caution. The map would have "accurately'_'shown that adjacent mine workings
existed, and would have "accurately'' shown that the exact location of those workings was not known.
This reading of the text does not lead to.the absurd.result ofrequiring operators to produce exact
depictions of inaccessible mine worlcings. This reading leads to the result ofthe operator considering
the safety of its miners by providing all the relevant and important information it possesses, and
where pertinent and life saving information is not available, so indicating. This interpretation is in
keeping with a plain reading ofthe text and is in line with the purpose of the Act - to protect the
safety of any miners ftom accidents such as the one that brought about these procee.dings.
The breakthrough accident occurred because the miners were working from the operat~r' s
5

PBS evidently agrees with this interpretation, as its brief emphasizes that "such mine" and
"such map" as used in the standard are, in fact, referring to.the operator's mine and map. PBS
Memo of Law at p. 22
28 FMSHRC 707

inaccurate map that did not show the adjacent mine workings within 1,000 feet. Ifthe location of
the adjacent Harrison workings were accurately depicted-within 1,000 feet-on the map, the
miners would not have intersected those workings that evening and the accident would not have
occurred.
Similarly, PBS's argument that it was not "on notice" that the phrase "accurate and up-todate" applied to its depiction of the workings of the Harrison No. 2 ·Mine on the section 75.1200
map is also erroneous. PBS argues it was not on n~tice because the Secretary's application of
"accurate and up-to-date'' to the depiction of the Hairison No. 2 Mine workings is contrazy to the
·
plain language of the regulation. PBS Memo ofLaw at 29-30.
The Commission has held that a safety standard must provide adequate notice of the
conduct it . .. requires, so that the mine operator.. .may act accordingly. Freeman United Coal
Mining, 18 FMSHRC 438, 448 (Mar. 1996). The standard is objective and the appropriate test is
not whether the operator had explicit prior notice of a specific . . .requirement, but whether a
reasonably prudent person familiar with the mining industry and the protective purposes of the
·
standard would have recognized the specific ...requirement of the standard. Id.
PBS agrees that the standard requires a mine operator be "accurate and up-to-date" with
respect to the working of its o\vn mine. PBS Memo ofLaw at p·. 29; Basic common seruie
dictates that a map is not accurate if it contains incorrect information. As an illustration, a
2006 map of the continental United States would not be accurate if its western botder·stopped at
Colorado. The Quecreek No. 1 Mine's section 75.1200 map incorrectly depicted the·location
(read: border) of the Harrison No. 2 Mine workings. A reasonably prudent person would not
only recognize that the plain meaning of the statlite requires an operator to have an accurate and
up-to-date map of its own mine workings (as PBS agrees that it does), but that its own map
cannot possibly be accurate if the information contained· therein is wrong. Moreover, a
reasonably prudent person familiar with the coal·mining industry (and likely many reasonably
prudent people who are unfamiliar with coal mining), would understand that an accurate map is
an important part ofmine safety and can help prevent unintentional ·breaches of flooded,
abandoned mines and other potential·dangers like oil and gas wells.
An operator's map (or any map, for that matter} cannot be accurate if its boundaries are
wrong. The boundaries on the Quecreek No. ·1 Mine's section 75.1200 map were wrong because
PBS incorrectly depicted them on the Quecreek No. 1 section 75.1200 map. PBS argues there is
no accepted practice for mmotating maps to show uncertainty. Id. at 31. However, I find it
incomprehensible that a skilled map maker would have no means ofnotating uncertainty or
inconclusiveness on ·a map. Because the boundary information contained in the Quecreek No. I
Mine's section 75.1200 map was wrong, the map itself was not accurate and consequently, the
standard was violated. The reasons behind·the incorrect boundary depiction are not relevant to
the question of whether a violation did in fact occur, which is the only inqriiry in the face of a
strict liability statute. The reasons for the incorrect depiction are a question of negligence and
··
that issue is addressed below.

28 FMSHRC 708

Accordingly, I find that the language of section 75.1200 is clear, PBS bad notice ofthe
regulation's requirements, a violation of3_0 C.F.R. § 75.poo did occur, and the Secretaifs
citation was properly predicated on the violation.
Therefore, the Secretary's Motion for Summary Judgment on this issue is granted.
B.

Whether PBS Was Negligent

PBS argues that even ifit is detennined that a violation occurred, it was not negligent in any
fashion because it exercised diligence in searching for a final map and it reasonably believed the
Consol map, though uncertified, was the final map. Moreover, it is not common for miners to
31Ulotate their maps with dashed lines, and PBS, in fact, was not aware of such a requirem~t. PBS
Memo of Law at 31-34.
. The Secretazy asserts that where information is uncertain, there exists a duty.to disclose to
MSHA the basis for the use of a map such as the Consol map; and, wh~-in doubt, ~y uncertainty. ·
She states PBS's failure to acknowledge.anylevel of doubt about the location ofthe ~~en.t mine
workings constituted negligence. Sec'y Br. at 27.
The citation states that PBS's violation of section 75.1200 was the result of''m.od~te"
negligence. Stip. 97. Moderate negligence means,."[t]he operat:Qr knew or should have known
of the violative condition or practice, but there are mitigating circums~ces.?'
30 C.F .R § 100.3(d)(Table VIII). This section furthe~ provides that ''[m]itjgating c~umstances
may include, but are not limited .to, actions which an operator has taken to prevent, correct, or
limit exposure to mine hazards,-30 C.F.R § 100.3(d).
The parties stipulated to the extensive searches performed by PBS. Stip. .55. Indeed,
Edwin P. Brady, MSHA's lead investigator, testified in his·deposition that -the engineers .
performed a diligent search and that he is not questioning their integrity or diligence. .Brady
Deposition at p. 51-52. Moreover, it is not PBS' fault that th~ Windber map was hidden in the
personal effects of the former Pennsylvania Mine Inspector during the time of its search. $tip.
84. It is also not PBS's fault that the OSM map was not indexed properly. Stip. 63.
Additionally, the parties agree that the Consol map used by PBS showed the most extensive
mining in the Harrison No. 2 Mine that was located.before the accident. .Stip 66. These
circumstances, however, are mitigating factors.
The key inquiry as set forth in section I 00.3 is: Should PBS have known of the violative
condition- in this case that the operator's map was not accurate - because it fail¢ to.show the
existence of adjacent mine workings within 1,000 feet? As previously discussed, a reasonably
prudent person.familiar with the mining in~ustry would know that .a map with ~correct
boundaries is not an accurate map. Jn additi9n, the same reasonably prudent person would know
that relying on an inaccurate map in the mining industry could.!Cad to disastrous results, as
happened here. Consequently, unless PBS reasonably believed that the map it relied.on to depict
28™8HRC709

the boundaries and workings of the Quecreek No. 1 Mine was valid itself, it should have kriown
that the Quecreek No. 1 Mine's section 75.1200 map would not be accurate and therefore would
·
violate the standard.
PBS submits that it reasonably believed the Consol Map was a final map of the Harrison
No. 2 Mine because Consol, as lessor of the coal reserves mined at the Harrison No. 2 Mine,
would be expect~ to possess afinal map. PBS Memo of Law at 32. In support of this
statement, PBS references the deposition testimony of Kelvin Wu, a member of the MSHA
accident iilvestigation team, in this matter. However, the testimony needs to be taken in context
Mr. Wu stated that he would expect the lessor of coal reserves to have a reliable map because
they have a fin·ancial incentive to do so. Wu Deposition at 43. However, he states that his
confidence level would be higher with a certified map, and he would take extra steps to validate
an uncertified map. Id. I also note that the full transcripts of the deposition testimony are not a
part o( the stipulated facts.
The question of whether PBS' s reliance on the Consol map was reasonable is a question
of fact. I am inclined to think it is not reasonable, since the map was not dated or certified, ·
despite Consol's incentive to have a final map. As the parties acknowledge,.the PA Mine Act
requires that within 60 days of abandonment of a mine, the operator or superintendent must
update the mine inspector' s map and must also send the PA DEP a "complete original tracing or
print of the complete original map, which.shall be kept in the department as apublic document."
PA Mine Act, 52 P.S. §701-2240; Stip. 38. Moreover, a registered professional engineer or .
copy and a.''true, complete
registered surveyor must certify that the map is a tru~ and correct
.
. .
.and
.
correct map and survey of all the excavations made in such mine." PA Mll:ie Act, S2 P.S.. §701240; Stip. 39. Consequently, a reasonably prudent person could also assume that the ·reason
Consol's "final" map was uncertified and undated was because it was not the final map arid that
the final·map was lost or misplaced.
PBS submits "nothing in the plain language of§ 7 5.1200 or in the Secretary's
Program Information Bulletins, Program Policy L('.tters, Procedure Instruction Letters, or
Program Policy Manual indicated to the regulated community that .there was a requl.rement to do
more than PBS did to depict the workings of an adjacent, inaccessible mine." PBS Memo of
Law at 33. This misses the point. There are many prophylactic actions taken by reasonably
prudent people that are not set forth in the statutes.
PBS next maintains that it was not a common practice for mine operators to annotate their
section 75.1200 maps with disclaimers, or to use dashed lines to signify uncertainty, or that under
the reasonably prudent person standard, PBS was not "on notice" that section 75.1200 required it
to notify MSHA or any other party, that it relied on a map of the Harrison No. 2 Mine that was
not dated, "final" or certified. PBS Memo of Law at 34. PBS provides a cpnsultative rq><>rt
from CME Engineering, to demonstrate that Pennsylvama is covered with uncharted and
abandoned mines and that the steps it took to locate a valid map of the Harrison No. 2 Mine not
only complied with the standards of the engineering arid mining community but actually

28 FMSHRC 710

exceeded the standards. PBS Exhibit 11.
While custom and practice evidence may be useful in detennining that PBS' s actions
were within the standards of the mining community, given the gravity of the accident, I cannot
dismiss basjc common sense. First, I note that Pennsylvania's mining laws at the time of the
actions giving rise to this accid~t were woefully inadequate in terms ofmine safety. Because of
the inadequacy of the laws, accurate mine maps of closed and abandoned mines ~ppear to be the
exception, rather than the rule. As a result,.engineers and surveyors aie at a disadv~tage when
putting together section 75.1200 maps. However, just because most mine engineers and ·
surveyors do not put disclaimers on maps, or use dashed lines to signal uncertainty, do~ not
mean that it cannot or should not be done. Mine disasters ~uch as those that occurred. at Hana,
Wyoming, Mari~ Pennsyl:vania, an4 Farmington, West Virginia, stand as grim reminders of a
time when miners died by the hundreds. Time and again, our attention has been capn.ired by the
tragedy of those who ask their lives each day toiling in the bowels ofthe eaith to make our lives
more comfortable. But since the passage of the Federal Mine Safety and Health Act, the culture
of our mining industry has changed from one of risk to a culture of safety. What was once
considered acceptable risk is no longer.
The crux of the matter, however, is whether PBS's reli3:11ce on the Consol map was
reasonable. This is a material factual question. I do not have enough information in the record
before me in order to fairly determine whether PBS was moderately negligent pursuant to
section 100.3(d)(Table VIII). At a minimwn, without the full deposition testimony subject to
stipulation, I cannot make a final determination of what a reasonable·engineer would do iil the
same situation. Additionally, there is no evidence in the record before me as to whether PBS
ever indicated to the production operator, Black Wolf: that the map iirelied on wasllilcertified
and undated. ·If Black Wolf had concerns about the boundaries of its mine before the accident,
which is also a material question of fact, it might indicate that PBS·conveyed any uncertainties it
might have bad about the map to Black Wolf As previously discussed, my personal inclination
is that an uncertified map from a lessor company like Consol would more likely indicate that the
final map was lost or misplaced. Accordingly, because there remain outstanding questions of
material fact, I am proluoited from a full review of the Secretary's determination of the level of
negligence and the remaining penalty assessment criteria as required by sec;tion 1lO(i) of the Act.
Summary judgment, as to the issue of PBS's degree ofnegligence and the appropriateness of the ·
penalty assessed, is therefore denied.
Musser

A.

Jurisdiction

As a threshold issue, Musser avers it is not an oPerator ofthe Quecreek No. 1 Mine· and,
therefore, is not subject to Mine Act jurisdiction. M1isser submits that pursuant to the Comm1ssion's
ruling in Berwind Natural Resources Corp, 21 FMSHRC 1284, 1393 (Dec. 1999), the tesi: for
detennining "operator" status is whether there was "substantial involvement with the mine." Musser

28 FMSHRC 711

Mot. at 8. Musser also argues that operator status is detennined on a case.-by-case basis, pmsuant to
the Commission's ruling.· Id. Applying the Berwind decision, Musser claims it did not have
substantial involvement with the mine, bUt: rather had the limited role of preparing a j>ennit
application. It could not make engineering decisions at the mine; it never represented the Quecreek
No. 1 Mine in health and safety matters; it had no authority in mine financial matters; and it had no
control over supervision, prOduction, or personnel matters at the mine. Thus, Musser asserts it does
not meet the "substantial involvement'' test and is not an "operator" within the meaning ofthe Act.
Id. at 10.
The Secretary rejects Musser' s argument, stating that Musser is an independent contractor
subject to Mine Act jurisdiction that performed "essential engineering services for the mine,"
includipg "assisting PBS and Blackwolf [sic] at the mine in the form of assisting PBS with surveying
the mine in 2001 and then. .. [conducting] a check Survey ofthe mine's mains in February 2002."
Sec'y Br. at 20-21. The Sec'y Response of January 6, 2006, further asserts that MSHA's independent
contractor records confirm that Musser's last change for its contractor 10-. ofKQN·was January 23,
1992, prior to the activity in question here and that Musser was clearly engaged in the business of
providing m.inllig engineering services to the mining community in their area of operation, including
at the Quecreek No. 1 Mine. Sec. Br. at 20. Moreover, the mine map that Musser created played an
integral role in the mining of Quecreek No. 1 Mine. Id. The Secretary ·asserts that the Commission
and Courts of Appeals have addressed independent contractors as mine operators, citing, in
particular, a Tenth Circuit ruling that ''independent contractor status is to be based not on the
existence of a service contract or control . .. but on the performance of significant services at the·
mine." Id. at 23, citing Jay Technologies, 99 F.3rd 991, 998 (10th Cir. 1996).' Musser's work, the
Secretaiy submits, "constituted the performance of services'; at the mine. Id. at 22. In addition, the
Secretary distinguishes the instant case from Berwind, stating that, while in Berwind, the Secretary
sought to hold Respondent Jessie BraQ.ch jointly liable for violations c0mmitted by the production
operator, in this case the Secretary is see.king to hold·Musser responsible for its own unique actions ·
with respect to mapping the mine. Id.
Musser' s reliance on Berwind is misplaced. In Berwind the Commission considered the
status of Jesse Branch, an engineering furn which performed mapping operations very similar to.the

actions of Musser, and three of the four Commissioners, constituting the majority found that
Jesse Branch could have been cited as an independent contractor. (Connnissioner Jordan stated: 'Tue
evidence unqu~onably reveals that Jesse Branch was an independent contractor performing ... the
engineering services of surveying, spad setting and preparation of mine maps." Coinmissioner
Marks: "[T]he record compels the conclusion that [Jesse Branch] was an independent contractor
performing services at the mine." Commissioner Riley: "Jes5e Branch could simply have been cited
as a contractor performing services at a mine.. ..").6
For the follo~g reasons, I conclude that ·Musser is an independent contractor operator within
the meaning of section 3(d) of the Mine Act, and, therefore, is Subject to Mine Act jurisdiction.
6

Commissioner Beatty, writing for the majority, and Commissioner Verhaggen, the lone
dissenter, did consider Jesse Branch an independent contractor.
28 FMSHRC 712

The Mine Act de~es an operator as "any owner, lessee, or other person who operates,
con1rols, or supervises a.coal or other mine or any independent contractorpeiform~ng services or
constrµction at such mine." 30 U.S.C. § 802(d) (emphasis added). Although widefined in the Act,
"independent contractor'' is defined in MSHA's regulations as "any person,. partnership, corporation,
subsidiary of a corporation, fum, association or other organization that contracts to petform services
or construction at a.mine." 30 C.F.R § 45.2(c) (emphasis added).
Prior to the 1977 amendments to the Mine Act, the tenn ''independent contractor'' was not
included in the definition of"operator," although "courts.interpreted this provision to include
independent contractors whenever the contractors, in performing services at the eoal mine, con1rolled
or supervised all or part of the mine." Joy Technologies., 99 F.3d at 993-94. Explaining its rationale
for inclusion of "independent contractor" in the definition of "operator," Congress noted in the
legislative history its."intent to thereby include individuals or firms who are engaged in the extraction
process for the benefit of the owner or lessee of the property and to make clear that the employees of
such individuals or firms are miners within the definition of [the Mine Act]." S. Rep. No. 95-181,
95th Cong., 1st Sess. 14, reprinted in 1977U.S.C.C.AN. 3401, 3414. WhileMtwerwasnot
engaged in the extraption process, it is apparent that Congress intended to expand the Mine Act's
reach to include entities one would not consider to be an "operator" in the traditional sense.
Circuits are split on the proper test for determining when an independent contracior's
activities and services constitute sufficient ties to a mining operation as to bring the contrac.tor under
the jurisdiction of the Mine Act . The District of Colwnbia, Nmth, and Tenth.Circuits have relied on.
the plain language of section 3(d) to conclude that "any independent contractor performing services"
at a mine could come under jurisdiction ofthe Mlne Act. D.H Blattner & Sons, Inc., 152, 1102 (9th
Cir. .1998); Joy Technologies, 99 F.3d 991 (10th Cir.1996) Otis Elevator Co., 921F.2d1285 (D.C.
·
Cir. 1990).7 Accepting the broad statutory reading adopted in Otis Elevator, the court in Joy
Technologies recognized that Congress chose the phrase "independent contractors performing
services or construction at [a] mine" to broaden the reach of the Mine Act "to include all those whose
presence at a mine affected the health and safety ofminers." Joy Technologies, 99 F.3d at 997-98.
While the Seventh Circuit followed the Otis Elevator and Joy Technologies test, it concluded that
Northern Illinois Steel Company - whose only connections to a mine .were delivering steel orders,
loosening restraints on the loads, and occasionally assisting with rigging the load - had such de
minimis ties to mining operations as.to prevent it from falling under Mine Actjurisdiction. Northern
lllinois Steel Supply Co., 294 F.3d 844, 848-49 (7th Cir. 2002). The court took a slightly more
narrow approach in its reading ofthe statute, requiring an entity to perform more than minimal
activity at a mine before it can be determined that "services" were performed. ·
Musser argues that it is not an operator under the Mine Act because, pursuant to Benvind, it
does not have "substantial involvement" with the mine, and the Commis&on did not consider an
operator's supervision or con1rol of a mining operation to be a deciding factor in detennining w~ether
7

I have found no recent or applicable Third Circuit case Jaw dealing with the issue of independent
contractor status under the Mine Act
28 FMSHRC 713

an entity is an operator. Instead, the Commission focused on the entity's '~articipation and
involvement in the operation of the mine."
· Under District of Columbia, and Tenth Circuit precedent, Musser is subject to the Mine Act if
it perfomied significant services rendering more than de minimiS ties to mining operations. Musser ·
was contracted to provide "certain engineering services" for the Quecreek No. 1 Mine, which
included researching and preparing the original pennit application for the mine. Stip.·at 12: This
work included creating and certifying a map of the mine, Which served as a baseline map and
boundary line for updating changes and current mining operations. Stip. at 87. A Musser employee·
certified the boun~ line that served as a foundation for mining operations and contributed to the
· ·
·
events of July 24, 2002.
I conclude that under either the '~lain language," "substantial involvement,,, or "de minimis''
tests, Musser falls within the definition of independent contractor, and, thus, is an operator for Mine
Act purposes. Mining operations require engineering support, mapping, and surveying services. The
Mine Act makes no distinction between activities done tcr meet operational requirements ofthe mine
and those done in a direct effort to m~ specific criteria ofthe Mine Act Although Musser was not
hired to create a map for submission to MSHA, it was hired to perform necessary services required in
the overall extraction process. Survey operations, mapping,·and advising on required barrier distance
between active mining and an abandoned mine all have sufficient ties to mining operations to
overcome the de minimis standard set forth in Joy Technologies and Otis Elevator.
Adcµtionally, even considering the somewhat narrower interpretation of "operator" that the
Commission ·discussed in Berwind, under the totality of the circumstaiice8, Musser's activities rise to
the level of "substantial involvement" with the mine. A "substantial involvement'' test based °<>n the
totality of the circumstances must be applied in light of Congress' intention that the Mine Act be
liberally construed to protect the health and safety of the miners. See, e.g., Cannelton Indus., 867
F.2d 1432, 1437 (D.C. Cir. 1989). Here, Musserwas·substantially involved in the operation of the
mine when it developed the boundary line for the Quecree.k No. 1 Min~ conducted surveys, and.
performed other engineering services within the mine itself. Considering Congress's intent and
under the totality of the circumstances, I conclude that Musser is an independent contractor operator
subject to Mine Act jurisdiction.
B.

Whether Musser Violated Section 75.1200

Musser argues that, even if the court determines it is subject to Mine Act jurisdiction, the map
it prepared was a permit application map that was not intended to be submitted to MSHA. Musser
Mot at 11. The Secretary contends, ·however; that as an independent contractor, MusSe.r is subject
to the standards set forth in the Mine Act. The Secretary charged·Musser with violating Section
75.1200 because M~'s inaccurate mapping of the abandoned HmiSon No. 2 Mine in ·relation to
the Quecreek No. 1 Mine contributed to the breakthrough arid inundation. Musser argues that" it could
not have violated 30 C.F.R. § 75.1200.because it was never hired to create the specific maps
submitted to meet MSHA requirements.
·
28 FMSHRC 714

for

PBS hired Musser to prepare the original PA DEP pennit application
the Quecreek No. 1
Mine, which included researching and identifying the location of old, abandoned mine workings
adjacent to the planned mine. It is undisputed that Musser and PBS searched every known mine map
repository in central and western Pennsylvania. Stip. at 55. They sought information on the potential
location of adjacent mines from all the expected sources, both public and private. Stip. at 55-65,_68.
Through this research, Musser located two maps, the "Greentree Map" and the "Consol Map," which
were considered the most extensive representations of mining that bad occurred at the Hanisotl No. 2
Mine. Stip. at 62.
Musser used the Consol Map to plot the boundary ofthe Harrison No. 2 Mine on the ,
Quecreek No. 1 Mine permit map. Stip. at 66. After plotting the outline of the Harrison No. 2 Mine
on the pennit map, Musser drew a line between the outline ofthe Hanison No. 2 Mine and the
planned workings for the Quecreek No. 1 Mine. Stip. 71. This line represented a 2()()..foot-wide
hydraulic banier between the Hanison No. 2 Mine and the Quecreek No. 1 Mine. Stip. 71, JE 1i.
This hydraulic banier line on the pennit map indicated the limit ofplanµed mining for the Quecreek
No. 1 Mine. . Musser employee, Edwin S. Secor, P.E., certified the permit map with the presumed .
outline ofthe Hanison No. 2 Mine and the established 200-f.oot-wide h)rdi:aulic barrier. Stip. 66.
This sealed map was submitted in oonjunction with the DEP permit application. Siip. 66. °The
Musser pennit map, including the placement of the Harrison No. 2 Mine and the banier distance .
between active workings planned for the Quecreek No. 2 Mine, was used as a basis for the maps
required to be prepared under 30 C.F.R. § 75.1200. Stip. 87.
·
·· ·
As the Mine Act is a strict liability statute, the inundation on Jrily 24, 2002, provides
sufficient evidence to prove that Musser's depiction ofthe Harrison No. 2 Mine worlcings within

1,000 feet ofthe Quecreek No. 1 Mine was not accurate.

·

·

The Secretary has wide enforcement discretion to proceed against "either an owner-operator,
his contractor, or both." W.P. Coa/Co., 16 FMSHRC 1354, 1360 (Sept. 1991); Consolidation Coal
Co., 11 FMSHRC 1439, 1443 (Aug. 1989). Indeed, simultaneous to the writing of this decision,
the District of Columbia issued a.decision in Twentymile Coal Co., 2006 WL 1867249, at *5
(Jul. 7, 2006) and unequivocally holding ''that the Secretary of Labor has authority to cite an
owner-operator for safety violations committed by its contractor." In this case, the Secretary did
not abuse her discretion by citing Musser because a violation of section 75.1200 existed and Musser,
as an independent contractor under section 3(d), is subject to the jurisdiction of the Mine Act
The Commission recently detennined that.due.process requires an operator to be in a position
to prevent the violation before it can be charged with the violation under the strict liability ofthe
Mine Act. National Cement Co. OfCa., Inc., 27 FMSHRC 721, 733 (Nov. 2005); q, Miller Mining
Co., 713 F.2d 487, 491 (9th Cir. 1983) (operator held liable for viQlation 1;hat occurred.when
unknown party entered operator's underground mine and altered ventilatioll. ~); Cyprus Indus.
Minerals Co., 664 F.2d 1116, 1119 (9th Cir. 1981) (holding that mine owner can be held liable for
violation by its independent contractor because the owner is generally in continuous control of
28 FMSHR.C 715

conditions at mine). Here, Musser was in a position to prevent the errors on the section 75.1200 map
submitted to MSHA because Musser ci:eated, certified, and sealed the permit map, on which the
section 75.1200 map was based. Musser knew that even though its inap ·would not specifically be ·
submitted to MSHA for the requirements of section 75.1200, the research and plotting of the
Harrison No. 2 Mine and the hydraulic barrier line would be used in creating future maps of the
Quecreek No. 1 Mine. By sealing the permit map, Musser verified the map's accuracy. PBS relied on
Musser's pemiit inap without conducting additional surveys and research of the area. The inaccurate
placement ofthe Harrison No. 2 Mine on the pemrit map transferred·to the section 75.1200 map.
Musser would likely have prevented the violation ofthe Mine Act had it preserved·the uncertainty of
the Consol Map on the permit map. Its failure to do so led to the Secretary properly citing Musser for
violating the Mine Act.
C.

Whether Musser Was Negligent

Although I find the "significant services" test of Joy Technologies and Otis Elevator
instructive, and I find the Secretary's arguments pertaining to the importance of certain
engineering services and their consequent effects on safety, regardless of the location at which
they are actually performed, to be particularly compelling, I note that all of these cases are very
fact-specific. Despite the numerous stipulations of fact, there is at least one factual area in
contention that precludes my granting summary decision on the degree of negligence and the
remaining penalty assessment criteria as required by section 11 O(i) of the Act. Part of Musser's
main argum~t is that its work was incidentto preparation of the permit application, was not
prepared in accordance with 30 C.F.R. § 75.1400 and was never intended to be 'llsed·as a
submittal to MSHA. Musser Mot. at 4. Indeed, at one point; Musser argues that the map it
certified for the permit application was prepared for environmental ·purposes, not for health and
safety purposes. Musser Reply Br. ·at 2. Musser also averred that:

In fact, the physical area encompassed by·the pennit application that Musser was
initially hired to prepare was much smaller than the physical area encompassed
by the final mine plan for the Quecreek No. 1 Mine. The Saxman/Harrison No. 2
Mine workings were not even within the physic~ area ·of the·initial permit
application that Musser prepared.8
·
However, elsewhere in the record, the parties stipulated that all future engineers certified
only their new work and accepted the prior sealed work as being complete. The parties further
stipulated that the original pennit map was used as a basis for the maps required to be prepared
under 30 C.F.R. § 75.1200. Stip. 87. While the record before me consisting of the stipulated
facts and the Joint Exhibits suggests that Musser knew or showd liave been reasonably aware that
its pennit map would serve as the basis for the section 75.1200 map, the parties have only
stipulated to the admission but not the validity of the Joint Exhibits. Stip. 116. I also note that
even though Musser emphasizes that the difficulties in locatit).g the ~nal, certified map were not
.

8

All boldface and italics are taken directly from Musser's Motion.
28 FMSHRC 716

.

"secret" because PBS was also engaged in the same search process,9 again it appears from the
record before me that Musser knew or h~d reason to believe that jts permit map would serve as
the basis for ~e MSHA.section 75.1200 map.
A detennination of whether Musser knew .o r h;;ld reason to believe that its permit map
would serve as the basis for the MSHA section 75.1200 map is of paramount importance to me
in making a final determination on Musser's potential moderate negligence citation.
Accordingly, as the facts underlying Musser's role the preparation of the section 75.1200 map
exists, summary judgment on the degree ofnegligence and the r~g penalty assessment
criteria as required by section 11 O(i) of the Act is imp1"9per and must be ®nied and my final
decision must await a full hearing on the facts.

m

Black Wolf
Section 110 of the Mine Act, states:
The operator of a coal or other mine in which .a violation occurs of a mandatory health or
safety standard ... shall be assessed a civil penalty by the Secretary . . . .
30 U .S.C. § 820(a) (emphasis added).
Black Wolf Coal Company is the operator of Que Creek Mine No. 1. Stip. I. Black
Wolf has stipulated to the facts which support my findings above that Violations of the Mine Act
have been committed by both PBS and Mus~er as independent contractors for ;Black Wolf. As
previously discussed, in Twentymile Coal, the District of Columbia Circuit Court, strongly
agreed with established precedent that the Secretary may cite an owner":'o perator for Violations
committed by its contractors. The Court cited the District of Columbia's seminal decision in Brock
v. Cathedral Bluffs Shale Oil Co., observing:
"To determine the meaning of.the term. "operator," the court reviewed the
legislative history ofthe Mine Act, first noting that the Federal Coal Mine Health
and Safety Act of 1969-the Mine Act's precursor-:-detlned" 'operator"' as" 'any
owner, lessee or other person who operates, controls, or supervises a coal mine."
' Id. (quoting 30 U .S.C. § 802(d)(1976)). The court next pointed out that, in
Bituminous Coal Operators Ass'n v. Secretary ofInterior ("BCOA''), 547 F .2d
240 (4th Cir.1977),.the Fourth Circuit "intexpreted that definition.of 'operator' to
include independent contractors performing services at the production--0perator's
mine, and held that the Secretary had the power to cite the independent
contractor, the operator, or both for independent contractor violations." 796 F .2d
at 535.

Twentymile Coal Co., 2006 WL 1867249, at *4 (Jul. 7, 2006) citing Broclc v.
9

Musser Motion at p. 8.
28 FMSHRC 717

Cathedral Bluffs Shale Oil Co., 796 F.2d 533 (D.C.Cir.1986) (Scalia, J.).
Reaffinning its decision in International Union, United Mine Workers ofAmerica v.
FMSHRC ("UMWA "), the District of Columbia Circuit Court further observed that ''the owner
of a mine-is liable without regard to its own fault for violations committed or dangers created by
its independent contractor." International Union, United Mine Workers ofAmerica v. FMSHRC
("UMWA ") 840 F.F2d 77, 83 (D.C. Cir. 1988) (Citing Cyprus Indus. Minerals Co. v. FMSHRC,
664 F.2d 1116, 1119 (9th Cir. 1981); Harman Mining Corp. v. FMSHRC, 671 F.2d 794, 797 n.2
(4th Cir. 1981); BCOA, 547 F.2d at 246 (4th Cir. 1977).
The court further found the holding to be consistent with the legislative history and the
statutory language explaining:
"Without exemption or exclusion, section 819 makes the operator of a coal mine in which
a violation occurs subject to a civil penalty .... Th[is] section[], when read with the
definition of operator, impose[s] liability on the owner or lessee of a mine regardless of
who violated the Act . ..."

Twentymile Coal Co., 2006WL1867249, at *4 (Jul. 7, 2006) dting UMWA at 83 (quoting BCOA,
547 F.2d at 246).
The court in Twentymile concluded:
[T]he Commission is generally without authority to review the Secre~' s discretjo1l:3IY
decisions regarding whether to cite owner-operators, their independent contractors, or
both for safety violations committed by the independent contractors.

Id. at 10
As I have found that independent contractors PBS and Musser both violated section
75.1200, I accordingly find that operator Black Wolf is jointly liable and was properly cited by
the Secretary.

Penalties
Although the joint stipulations of fact to an extent address some of the section 11 O(i)
criteria, I have insufficient information to make a determination as to the validity of the proposed
penalty assessments for any of the parties. To make this determination, an evidentiary hearing
must be held.

28 FMSHRC 718

ORDER

In light of the foregoing, the Secretary's Motion for Swnmary Decision is GRANTED
IN PART and DENIED IN PART and the Respondents' M.o tion for Summary Decision is .
DENIED. The violations of mandatory safety standards for underground mines issued by the
Secretary of Labor against Musser, PBS, and Black Wolf are affirmed. The parties are
ORDERED to confer and inform this court within 30 days of their availability for a hearing in
the matter to be held in Somerset County Court House, Somerset, Pennsylvania, solely for the
purpose of presenting testimony and argument regarding the appropriateness of the penalties
proposed by the Secretary

Robert J. Lesnick
ChiefAdministrative Law Judge

Distribution
Edward H . Fitch, N , Esq., Office of the Solicitor, U .S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209:..2247
·
·
Laura E. Beverage, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO
80202
R . Henry Moore, Esq., Jackson Kelly, PllC, Three Gateway Center, Suite 1340, 401 Liberty
Avenue, Pittsburgh, PA 15222
Marco M . Rajkovich, Jr., Esq., Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick&
True, PLLC, 2333 Alwnni Park Plaza, Suite 310, Lexington, KY 40517

Joseph A. Yuhas, ~sq., Attorney at Law, P.O. Box 1025, Northern Cambria, PA 15714

28 FMSBRC 719

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

July 30, 2006
DICAPERL MINERALS CORPORATION,
Contestant

CONTEST PROCEEDINGS
Docket No. WEST 2004-511-RM
Citation No..6300457; 09/03/20.0 4
Docket No. WEST 2004-512-RM
Citation No. 6300458; 0910312004

v.

Docket No. WEST 4004-513-RM
Citation No. 6300459; 09/03/2004.
Docket No. WEST 2004-514-RM
Citation No. 6300460; 09/04/2004

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

Docket No. WEST 2004-515-RM
Citation No. 6300470; 09/23/~004
El Grande Plant
Id. No. 05-00438

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2005-030-M
A.C. No. 05-00438-33522
Docket No. WEST 2005-173-M
A.C. No. 05-00438-45808

v.
Docket No. WEST 2005-216-M
A.C. No. 05-00438-47837

DICAPERL MINERALS CORPORATION,
Respondent

Docket No. WEST 2005-357-M
A.C. No. 05-00438-55242
Docket No. WEST 2005-504-M
A.C. No. 05-00438-64811

El Grande Plant

28 FMSHRC 720

CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 2005-104-M
A.C. No. 05-00438-37368A

v.

Docket No. WEST 2005-358-M
A.C. No. 05-00438-55240A

TERRY J. VANCE, employed by
DICAPERL MINERALS CORPORATION
Respondent

El Grande Plant

CIVIL PENALTY PROCEEDINGS

SECRETARY OF LABOR,
MINE SAFETY AND HEALIB
ADMlNISTRATION (MSHA),
Petitioner

Docket No. WEST 2005-111-M
A.C. No. 05-00438-37367A
Docket No. WEST 2005-359-M
A.C. No. 05-00438-552410A

v.
CLAUDE S. RADFORD, employed by
DICAPERL l\1INERALS CORPORATION
Respondent

El Grande Plant

ORDER FINDING THAT THE MINE SAFETY AND HEALTH ADMINISTRATION
HAS JURISDICTION TO INSPECT THE EL GRANDE PLANT
These cases are before me on five notices of contest brought by Dicaperl Minerals
Corporation (''Dicaperl'') and nine petitions for assessment of civil penalty :filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration (''MSHA"), against
Dicaperl, Terry J. Vance, and Claude S. Radford pursuant to sections 105 and 110 of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the ''Mine Act''). The cases
involve citations and orders issued by MSHA at Dicaperl 's El Grande Plant in Conejos County,
Colorado. This plant, which Dicaperl calls the Antonito Processing Facility, is about :five miles
north of the New Mexico border in the town of Antonito, Colorado. Throughout this order, I
refer to this facility as the "El Grande Plant'' or the ~l>lant."
Dicaperl contends that the plant is not subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801, et seq. ("Mine Act''). I granted the parties'
request that a hearing be held on this jurisdictional issue. An evidentiary hearing limited to the
issue ofMSHA' s jurisdiction over the plant was held in the Commission's courtroom in Denver,
Colorado. The parties introduced testimony and documentary evidence and :filed post-hearing
briefs. I also granted the motion of the Perlite Institute to file a brief as amicus curiae.

28 FMSHRC 721

I. BACKGROUND
The El Grande Plant can best be described as a perlite expansion facility. ·This plant is a
free-standing facility that is not located at or adjacent to the quarries where the feedstock for the
plant originates. Perlite is a volcanic glass that is used in a wide variety of horticultural,
consumer and industrial products. Most of the expanded perlite that is produced at the plant is ·
sold to U.S. Gypsum and Hamilton Materials to make joint compound used in drywall
installation. To understand the workings of the plant, it is necessary to start at the begirming,
which is the mining of the ore. Dicaperl operates two perlite mines in New Mexico: the No
Agua Mine & Mill and the Socorro Mine & Mill. Once the ore is removed from the ground at
these mines, it goes through a milling process. The mined material is dumped through a grizzly
to remove large rocks and it'falts into a jaw crusher. The crushed ore then drops through a
scalping screen to remove material larger than one inch. The larger material is sent back through
a secondary crusher. Once the material is small enough, it is sent through a dryer. The dried
material is dropped onto a two-deck screen where further sizing takes place. This screen deck
separates coarse, intermediate, and fine grades of perlite ore. As before, material that is too large
is sent back through the secondary crusher and back through the screen deck.
The three finer grades of matenal from the No Agua and Socorro mills are shipped by
pneumatic tractor trailers to the El Grande Plant. These three grades of perlite ore have the
consistency of white flour. The No Agua Mine & ·Mill is about 23 miles from the plant and the
Socorro Mine & Mill is about 250 miles from the plant. · About 70% of the material processed at
·
the plant is from the Socorro Mine & Mill.
Dicaperl expands and screens the perlite received from No Agua and Socorro at the El
Grande Plant. The plant is subdivided into four different plants but, for purposes <;>f the.s e
proceedings, the processes are the same in each plant. Each plant consists·of storage bins, a
furnace, a cyclone, a baghouse, a screen, and product bagging systems. In this order, I discuss
the processes used at the plant as if there were but one plant so I use the singiilar rather than·the
plural. Exhibit S-2 is a schematic of the plant and Exhibits S-5 through S-15, S-20, and s .:.21 are
photographs of the plant.
·
The milled perlite ore is transported from the storage bin at the plant into the furnace. ·
The furnace is vertical and contains a.vertical "firing tube" in the center. When the perlite passes
through the burner flame and mixes with the hot gasses in the firing tube at temperatures of about
l,600°F, the particles start to melt and become plastic. At this point, the chemically combined
water in the particles vaporizes and is quickly released. As the water is released, the particles
expand or "pop." This process can be analogized to the popping of popcorn kernels in hot air.
This process takes but a few niilliseconds as the perlite shoots up the firing tube in the furnace.
The popped perlite is between 4 and 20 times its original ·volume and is significantly lighter in
weight. Dicaperl tries to keep the density of the expanded perlite in the range of 6.5 to 7.5
pounds per cubic foot. Dicaperl calls these popped perlite particles "microspheres."

28 FMSHRC.722

As the microspheres exit the top of the vertical furnace, they are captured by a collector
cyclone or a baghouse dust collector. The lnicrospheres move along the airline through an
airlock where they are dropped onto a single deck Rotex screen. About 95-97% of the
microspheres drop onto the .screen, while the remaining 3-5% are pulled into the baghouse filters.
The Rotex screen is normally a 60-mesh screen, but a 74-mesh screen is used for some products.
The Rotex screen i.s:oli a slight incline and rotates in a circular back and forth motion. The
material that is too large to pass through the screen falls over the top of the screen into a "tramp"
bag. The material that is smaller than the mesh openings falls into product bags. The
microspheres in product bags are fine enough to be qsed in joint compo~d and are sold to U.S.
Gypsum and, Hamilton Materials. Microspheres can be too large to pass through the screen
because they expanded too much in the furnace or because the size of the perlite particles that
entered the vertical furnace was too large. In addition, microspheres sometimes attach to the
metal·walls of the firing tube and fuse together. Most of these fused microspheres eventually
drop to the bottom of the furnace, but some are shot up the firing tube, travel over the screen, and
fall into the tramp bag. Finally, foreign obj~ts such as sand, small rocks, mining debris, and .
small bits of metal frqm the plant fall into the tramp bag. The material in the tramp bags is
shipped to other perlite processing facilities in Indiana and Tennessee.
There are quite a few perlite expansion fatjlities in the.United States. A significant
number of these facilities process perlite ore to make microspheres in a manner that is similar to
the processes used at the El Grande Plant. As discussed in mo~ detailed below, Dicaperl
introduced evidence to show that many of these other perlite expansion facilities are inspected b.y
the Department of Labor's Occupational Safety and Health Administration ("OSHA") rather th.an
MSHA whenever such facilities are geographically and operationally separate from minillg
·
operations.
MSHA has been inspecting the El Grande Plant since the passage of the Mine Act. The
El Grande Plant was assigned the same mine identification number as the No Agua Mine. At
that time, the No Agua Mine and the El Grande Plant were owned and operated by another
company. The plant was included under the same mine identification number as the perlite mine
at the request of the operator. Because the operator moved employees between the mine an~ the
plant, it wanted both facilities under the jurisdiction of a single agency and it wanted the 'Same
MSHA inspectors to inspect both facilities. Since the plant was only about five miles north of
the New Mexico - Colorado border, both facilities were inspected by MSHA's Albuquerque
Field Office which is part of its South Central District. Ordinarily, facilities in Colorado are
inspected out of the Denver Field Office ofMSHA' s Rocky Mountain District. Apparently,
when ~e amount of mining activity at the No Agua mine .s lowed down, MSHA inspectoi:s from
Albuquerque were traveling into Colorado for the sole purpose of inspecting the plant. The No
Agua Mine is an intennittent operation. Sometime around November 2003, ¥SHA assigned a
Rocky Mountain District identification number to the plant and MSHA inspectors.out ofthe
Denver Field Office began inspecting the plant separately from inspections of the No Agua Mine.

Il. BRIEF SUMMARY OF ARGUMENTS PRESENTED
28 FMSHRC 723

The only issue presented at the hearing is whether MSHA has jurisdiction over Dicaperl's
El Grande Plant. The Secretary contends that the plant engages in mineral milling and is
therefore a mine as that tenn is used in section 3(h)(1) of the Mine Act. She states that section
3(h)(l) delegates to her the authority to determine what constitutes mineral milling. She points
out that Congress expressed its intention that doubts be resolved in favor of inclusion of a facility
under the Mine Act. She provided clarification of the term mineral milling in her interageney ·
agreement between the MSHA and OSHA. (''Interagency Agreement,, or "Agreement'') (Ex. S17). The Secretary argues that the dividing line is delineated in·the Interagency Agreemerit in·
two ways. First, sectio~ B(6) of the Interagency Agreement assigns certain types of facilities
either to OSHA or MSHA. Second, in instances where the type of facility in question is not
specifically assigned to either OSHA or MSHA under the Interagency Agreement, as is 'the case
with perlite expansion facilities, the agreement provides a series of definitions to be used·to make
this determination. The Secretary contends that the El Grande Plant fits within one or more of
the definitions of mineral milling in the Interagency Agreement.
The Secretary also argiles that her position is consistent with her longstanding
interpretation of mineral milling. She states that Dicaperl' s evidence concerning MSHA's lack
of inspection activities at other p~lite facilities is too weak to be given much weight. The perlite
industry "contains plants of varied design and function that requife a case.:by-case jurisdictional
determination to be made by MSHA and OSHA taking into consideration the factors set forth in
sections B(3) - B(S) of the Interagency Agreement." (Sec. Br. 28). The·evidence shows that ·
MSHA has inspected the El Grande plant since the agency was created aD.d 'thatMSHA's
predecessor the Department ~fthe Interior inspected the plant since at least 1972: This history
of MSHA inspections at the El Grande Plant establishes a clear pattern ofconsisterit
enforcement.
·

in

Dicaperl argues that it engages in mineral milling at the Socorro Mine & Mill and·No
Agua Mine & Mill. It contends that the El Grande Plant manufacni.res microspheres through the
perlite expansion process. The processes used at the El Grande Plant are not mineral milling as ·
that term is used in the Mine Act and defined in the Iriteragency Agreement. Because the express
language of the Interagency Agreement is clear and unambiguous, consideration of the
Secretary's interpretation of the language is not warranted. The Secretary's evidence on this
issue was provided by MSHA employees who only briefly visited the plant. Claude"Radford,
who has been the plant manager for the past 15 years, testified as to the processes Used at the
plant. His testimony should be given considerably more weight than the testimony of MSHA
employees. Indeed, the Secretary's own counsel agreed at the hearing than Mr. Radford is the
''world's greatest authority on what happens at the El Grande Plant." {Tr. 76). Radford's
description of the plant operations makes clear that it is ~ manufacturing facility, not a milling
operation.
Dicaperl also introduced evidence tha~ eight similar perlite expansion plants are inspected
by OSHA rather than MSHA. In addition, in response to discovery, the Secretary provided a list
of 21 other perlite expansion facilities that are not currently inspected by MSHA. Dicaperl also
28 FMSHRC 724

submitted an MSHA memo from MSHA's Southeast District which states that Chemrock' s
Jacksonville, Florida, perlite expansion plant should be inspected by OSHA rather than MSHA.
The memo states that "[t]his determination is consistent with past jurisdictional detenniriations
that perlite and vermiculite oper~ons wliich.are geographically and operationally separate from
mining operations shall be subject to OSHA'sjurisdiction." (Ex. C-7).· Thus, Dicaperl
concludes that the El Grande Plant is the only MSHA-regulated perlite expansion facility in the
United States not located at or near a the mine where perlite is extracted from the earth. The
Secretary did not introduce evidence of a single other p~rlite
facility that is inspected by MSHA.
.
.
Dicaperl further argues that because the Secretary has interpreted the·term mineral milling
differently at other perlite expansion facilities, her interpretation of that term should not be
accorded deference in this case. · An ageii.cy•s interpretation should not be given much weight
when it has not been consistently stated or applied. Perlite expansion facilities like Dicaperl' s
operate in much the same way today as they did when the Interagency Agreement was drafted.
The failure to include the processes used at these facilities in any of the definitions of mineral
milling demonstrates that the Secretary intended perlite expansion facilities to be inspected by
OSHA.
In its amicus brief, the Perlite Institute states that there are :about 25 perlite manufacturing
plants throughout the United States. A few of these plants are "co.-loeated'' with lnining
·
operations where the extraction of perlite ore takes place. It states that, in the past few decade5~
virtually all perlite.man~cturing.plants, which are not located at a perlite mine, have been under
the jurisdiction.of OSHA. These plants do not engage in mineral milling aS that tenn is used in
the Mine Act and the Interagency Agreement. All minerat milling·of perlite ore is pe.eformed at
the mines where perlite is extracted from the earth. The work performed at perlite plaD:ts is part
ofthe final manufacturing process of the product In some cases, expanded perlite is added to
other materials. For example, perlite is added to gypsum and fiber at some perlite plants to
manufacture ceiling tiles. In other cases, perlite may be sold in separate grades, sizes or
mixtures, depending on intended uses. Many typeS of non-metallic minerals are routqiely subject
to further processing to render them suitabie for the intended end uses. Under the Secretary's
excessively broad reading of the µtteragency agreement, all of these processes would be
considered mineral milling. The Perlite Institute contends that perlite plants manufacture a
product aµd they bear no genuine resemblance to milling operations that are part of the mining of
ore. Perlite plants manufacture~ product in accordance with their customers' needs rather than
·
the needs of the mine operator.

ID. ANALYSIS OF THE ISSUES WITH F1NDINGS OF FACT
AND CONCLUSIONS OF LAW
The Mine Act states, in relevant part, that "[e]ach coal or other mine . . . shall be subject
to provisions of this [Act)." 30 U.S.C. § 803. The Mlne Act defines "coal.o r other mine" as:

28 FMSHRC 725

(A) an area ofiandfromwhich minerals are extracted ... (B)
private ways and roads appurtenant to such are~ and (C) lands ...
structures, facilities, equipment, machines, tools; or other property
... on the surface or under~ound, used in, or to be used in ... the"
work ofextracting minerals from their natural deposits ... or used
in ... the milling ofsuch minerals .... ·· ·
30 U.S.C. § 802(b)(l) (emphasis added). The Mine Act does not define "milling," but states that
in making a "detennination ofwhat constitutes mineral milling ... , the Secretary shall give due
consideration to the convenience of administration resulting from the delegation to one Assistant
Secretary of all authorities with respect to health and safety of miners employed at one physical
establishment." Id. When Congress passed the Mine Act, the report of the Senate Committee on
Human Resources stated that "it is the Committee's intention .t hat what is considered to be a
mine and to be regulated under this Act be given the broadest possible interpretation, and it is the
intent of this Committee that doubts be resolved in favor of inclusion of a facility within the ·
coverage of the Act." S. Rep. No. 95-181at14 (1977), reprinted in SenateSubcomm. on Labor,
Comm. on Human Res., Legislative History ofthe Federal Mine Safety·and Health Act of1977 ·
at 602 (1978).

In reviewing MSHA's interpretation of a statute, the reviewing court must first inquire
''whether Congress has directly spoken to the precise question at issue." Chevron U.S.A. ·lnc. v.
Natural Res. Def Council, 467 U.S.·837, 842-44.(1984); Watkins Eng'rs & Constructors 24
FMSHRC 669, 672-73 (July 2002). If the statute is clear and uruiinbiguous, effect must be give
to its language. Id. When a statute·is ambiguous or silent on the point in question, a further
analy8is is ·required to detennine whether an: agency's interpretation of the statute is a reasonable ·
one. Id. Deference is accorded to "an agency's interpretation of the statute it is charged With
administering when that interpretation 'is reasonable." Energy W. Mining Co. v. FMSHRC, 40·
F.3d 457, 460 (D.C. Cir. 1994)(citing Chevron, 467 U.S. at 844). "The agency's interpretation ·
of the statute is entitled to: affirmance as long as that interpretation is one of the permissible
interpretations the agency could have selected." Watkins'24 FMSHRC at 673 (citations omitted).

In ·Watkins, the Commission reached the following conclusion:
The Supreme Court recently recognized that Chevron deference is
appropriately applied to ·an agency's interpretation of a statute when ·
Congress delegated authority to the agency to speak with the force ·
oflaw when it addresses ambiguity or "fills in a space" in the
statute and the agency's interpretation claiming deference was
promulgated in the exercise of that authority. United States v.
Mead Corp., 533 U.S. 218, 226-27, 229 (2001). Section 3(h)(l)
contains an express delegation of authority to 't he Secretary to
detennine what constitutes milling. See In re: Kaiser:Aluminum ·
and Chem. Co., 214 F.3d 586, 591 (5th Cir. 2000) ("Congress
28 FMSHRC 726

expressly delegated to the Secretary ... authority to determine
what constitutes mineral milling") (internal quotations omitted),
cert. denied, 532 U.S. 919 (2001 ). Thus, Congress explicitly left a
gap for the Secretary to fill with respect to the definition of milling.
Under Mead, 533 U .S. at .227, the Secretary's interpr~tation of
milling is entitled to acceptance if it is reasonable. See Chevron,
467 U.S. at 843-44; Thunder Basin, 18 FMSHRC at 584 n.2;
Keystone Coal, 16 FMSHRC at 13.
24 FMSHRC at 673 . .
Dicaperl and the Perlite Institute do not dispute that the Secretary has broad authorjty to
interpret the term "milling," but they contend that her auth()rity is not without limits. As the D.C.
Circuit observed, "every company whose business .brings it into contact with_miµerals is .not to be
classified as a .mine within the meaning of section 3(h) [of the Mine Act]." Dono_van v. Carolina
Stalite Co. 734 F .2d 1547, 1551 (D.C. Cir. 1984). They contend that the Secretary's
interpretation is unreasonable and is not entitled to deference.
·

A. Definition of Millin& in the Interaa:ency A&reement.
An analysis of the futeragex;icy Agreement is necessary to resolve the dispute raised in
these cases. In the Agreement, the Secretary first states that the Mine Act auf.horizes the
Secretary to promulgate safety and health standards r~garding the working conditions_ of
employees engaged in the "preparation and,millingofthe minerals extracted" from underground
and surface mines...(Ex. S-17 at 1). The Interagency Agreement also states that the Occupational
Safety and Health Act of 1970 ("OSHAct") gives the Secretary, acting thr()ugh OSHA,,authority
over working conditions of employees "except those conditions with re$pect to which.other
Federal agencies exercise statutory authority to prescribe or enforce regulations affecting
occupational safety or health." Id. Thus, if the Secretary has jurisdiction over a facility under the
Mine Act because it is a mill, safety standards deyeloped under.the OSHAct do not apply.
The Agreement states that it was written to "set forth the general principle and specific
procedures which will guide MSHA and OSHA." Id. It states that the Agreement will "serve as
guidance to employers and employees in the affected industries .in determining the jurisdiction of
the two statutes involved." Jd. ''The general principle is that .as.to unsafe and unhealthful
working conditions on mine sites and milling operations, the.Secretary will apply the provisions
of the Mine Act and standards promulgated thereunder to eliminate..those conditions." Id.
The Agreement goes on to state that:
(W]here the provisions of the Mine Act either do n<,>t cover or do
not otherW:ise apply to occupational safety ~cl-health hazards on
mine or mill sites (e.g. hospitals on mine sites) or where thei:e is

28 FMSHRC 727

statutory coverage under the Mine Act but there exist no MSHA
standards applicable working conditions on such sites; then the
OSHAct will be applied to those working conditions. Also, if an
employer has ~ntrol of the working conditions on the mine site or
milling operation and such employer is ·neither a mine operator nor
an independent contractor subject to the Mine Act, the OSHAct
may be applied to such an employer where·application of the
OSHAct would, in such a case~ provide a more effective remedy
that citing a mine operator or an independent contractor subject to
the Mine Act who does not, in such circumstances, have 'direct
control over the working conditions.
The Agreement sets forth guidelines that the Secretary·will use in determining whether a
facility is engaged in mineral milling. It is clear that the Secretary anticipated that she needed to
be flexible in her approach because of the myriad·circumstances which·may exist. Appendix A
to the Agreement provides a rather detailed, description of the "kinds of operations included in
mining and milling and the kinds of ancillary operations over·which OSHA ha8 authority." (Ex.
S-17 at 2). It is important to understand, however, that the·Secretary realized that ·
"[n]otwithstancling the clanfication ofauthOrityproVided by°Appenclix A, there Will remain areas
of uncertainty regarding the application of the Mine Act, especially·in operations ·near the
termination of the milling cycle and beginning of the manufacturing cycle." Id. The Agreement
states that the "scope of the term milling may be expanded to apply to mineral product
manufacturing processes where those processes are related, technologically or geographically, to
milling." Id. Conversely, the tenn ''millfug• may be narrowed to exclude from its scope
"processes listed in Appendix A wJiere such processes are unrelated, technologically or
geographically, to mineral milling." Id. ·'
·
The Interagency Agreement further provides:
The following factors, among others, shall be considere4 in making
detenninations of what constitutes miileral·milling under section
3(h)(l) and whether a·physical establishment is subject to ·either
authority by MSHA or OSHA: the processes conducted at the ·
facility, the relation of all processes at the facility to each other, the
number of individuals employed in each process, and the expertise
and enforcement capability of each agency with respect to the
health hazards associated with all the processes conducted at the
facility. The consideration of these factors will reflect Congress'
intention that doubts be resolved·in favor of inclusion of a facility
within the coverage of the Mine Act.

Id.

28 FMSHRC 728

In addition, the Interagency Agreement provides that certain specific processes are
automatically deemed to be mineral milling, such as the processes·at alumina plants and cement
plants. Id. The Agreement states that other process.es are automatically subject to the
jurisdiction of OSHA, such as the process'es at smelters, refineries, and concrete and asphalt
batch plants. Id. These processes do not require a case-by-case analysis. Perlite expansion
facilities are not specifically listed in the Jnteragency Agreement. As a consequence, the
determination of whether the El Grande Plant is engaged in mineral milling must be determined
by examining the specific processes that are condiicted at the plant.
The Agreement defin~s the term "milling" in Appendix A, as follows:
Milling is the art of treating the crude crust of the earth to produce
therefrom the primary consumer derivatives.. The essential
operation in all such processes is separation of one or m<;>re
valuable desired constituents of the crude from the undesired
contaminants with which it is associatecl. A CRUDE is any
mixture of minerals.
. in which it occurs in the earth's
. in the form.
crust. An ORE is a solid crude containing yaluable constituents in
such amounts as to constitute promise.of pqssibie pr~fit in
extraction, treatment, and sale.
(Ex. S-17 at 5).

As the Commission stated in Watkins, Congress. "~xplicitly left a gap for the Secretary to
fill with respect to the definitfon of milling." (24 FMSHRC at 613). The issue is whether it was
reasonable for the Secretary to conclude that the term "milling" covers one or more of the· .
processes that take place at the El Grande Plant. In conducting thi°s analysis, the question
becomes whether the Secretary's interpretation of milling, as applied to the facts of this case, is
based on a ')lermissible construction of the statute." Chevron, 467 U.S. at 842.
At the hearing, Senior Mine Safety and Health Specialist L. Harvey Kirk .testified for the
Secretary. He testified that during the perlite expansion process at the El Grande Plant, Dicaperl
separates from the crude ore ''the combined water that [is] chemicallybowi.d up in it." (Tr. 141).
Through this process, Dicaperl is making a ''more valuable, more desired, [and] certainly more
versatile product." Id. In bis report, Kirk.stated:
The Antonito facility.is a mill because it subjects pulverized perlite
ore ("a solid crude") to high temperatures in order to vaporize
combined water in the ore and thereby create (and, in.effect,
separate) a desired, expanded constituent of the ore. This process
produces (after the expanded perlite is sized in collector cyclones
and screens) a primary consumer derivative which is used by

28 FMSHRC 729

downstream manufacturers to make joint compound and other
products for the public.
(Ex. S-18 at 2). The sudden heating of the perlite causes water to be liberated from the perlite
ore. Kirk contends that this water is "an undesired contaminate1' which is separated from the
"desired constituents" in the crude ore: As a consequence, the Secretary argues that the heat
expansion process qualifies as mineral milling.
Claude Radford, a 25-year veteran of the perlite industry, testified that no "contaminants1'
are removed during the expansion process. (Tr. 219). Instead, the process only "changes the · ·
shape of the particle" while allowing the water to evaporate. Id. Thus, Dicaperl contends that
the El Grande Plant does not fit into the Interagency Agreement's definition of a mill.
The El Grande Plant is not associated with an area where material is extracted from the
ground. The plant receives perlite from two different mines. The first question is ·whether the El
Grande treats ''the crude crust of the earth to produce therefrom the primary consumer
derivatives." Can previously crushed ·and sized perlite be considered to be ''the crude crust of the
earth?" The Interagency Agreement defines "crude" as "any mixture of minerals in the form ih
which it occurs in the earth's crust." The perlite received at the plant from the No Agua and
Socorro Mines is a mineral, but it is not in the same "form" in which it occurs in the earth's crust
because it was milled before it left the two mines. Nevertheless, the perlite was not chemically
changed, it was simply crushed or pulverized "into a fine powder. Clearly"once a mineral enters
the milling process it is no longer in the form in which it occurs in the earth's crust. ·
Nevertheless, the downstream processes used to mill a mineral cannot be said to be something ·
other than milling just because·the material entering ·that particular process is not in the "form"
in which it occurs in the earth. The mineral can only be in that form in the first step of the . .
milling process. Thus, secondary crushing is still milling even though the material entering the
secondary crusher is not in the form in which -it naturally occurs. · I find that the Secretary
established that Dicaperl treats the crude crust of the earth to produce primary consumer
derivatives at the El Grande Plant.
Another issue raised by the Secretary's definition of milling is whether the removal of
water from the perlite through the heat expansion process can be considered to be the "separation
of one or more valuable desired constituents of the crude from the undesired contaminants with
which it is associated." The Secretary contends that because the removal of water is key to the
expansion process, the water should be considered to be an undesired contaminant which is
removed at the plant. Because an undesired contaminant is removed, she contends that mineral
milling is taking place.
I find the Secretary's interpretation to be reasonable based on the evidence presented.
When the perlite is expanded (popped), all moisture is removed. The heating process at the plant
is designed to expand the perlite to make it less dense. This process upgrades the product for ~e ·
in the construction industry. The product would not be the same if the moisture remained in the ·

28 FMSHRC 730

perlite. Thus, the "widesirable contaminant'' in the crude (water) is separated from the '"valuable
desired constituents of the crude," in order to upgrade the product.

In the mining industry, the first stage of milling generally consists of crushing and
grinding the ore using crushers,.ball mills,. rod mills and other similar equipment. The milling
process does not stop there, however. The separation of the desjred mineral from th~ unwanted
contaminants is typically performed by subjecting the crushed ore to a setjes of processes.which
removes contaminants. In the crushed stone industry, for example, the crushed material is sized
for customer use and unwanted material is removed.. In the metal x¢ning industry, finely crushed
ore may be placed in large flotation vats which contain c~emical reagents that help separate the
desired metallic minerals from the host rock. All of these processes are part of the milling
operation. The term ''milling' is not limited to the .p rocesses that crush and grind the crude ore.
In this case, Dicaperl uses high heat to remove the undesirable water from the ore. 1
I find that the Secretary's contention that the removal of water from the perlite at the p~ant
constitutes mineral milling is a permissible and reasonable construction of the tenn milling in
section 3(h)(l) of the Mine Act. The water which is removed is not water on the surface of the
·
perlite but is water that is embedded in the perlite itself and is removed.to create a lighter
product. The water is not incidentally evaporated from.the perlite as it passes through.the.
vertical furnace; the removal of the water is a key component of the expansion process.
Another operation that the Secretary contends that Dicaperl performs at the plant is
sizing. In Appendix A of the InteragencyAgreem.ent, the Secretary.sets forth.examples of
processes which she interprets as milling under the Mine Ac~. These examples are: "crushing,
grinding, pulverizing, sizing,.concentra:ting, washing, .drying, roasting, pelletizing, sinterllig,
evaporating, calcining, bin treatment, sawing and cutting stone, heat expansion, retorting . .
(mercmy), leaching, and briquetting." (Ex. S- 17 at 7.) The Secretary defines these processes in
the Interagency Agreement Kirk testified that Dicaperl performs milling at the plant because it
sizes the perlite after it is expanded. The Interagency Agreement defines "sizing" as ''the process
of separating particles of mixed sizes into groups of particles of all the same size, or into groups
in which particles range between maximum and minimum sizes." (Ex. S-17 at 7). There is no
dispute that all of the expanded perlite is screened through one of two screens. Material that does
not fit through the screen is bagged separately:

I note that the Secretary is not bound by any particular tec~cal definition of millmg. ·As the
Commission stated, "[i]n enacting the Mine Act, Congress did not impose upon the Secretary a
technical definition of milling based on the separation ofvaluable from valueless materials, nor
in the Act's legislative history did it intimate that such separation was critical to the
determination that 'milling' took place." Watkins, 24 FMSHRC at 675. In this case, however,
the Secretary contends that the removal of water from the perlite powder fits within her definition
ofmilling in Appendix A of the Agreement.
1

28 FMSHR.C 731

Kirk testified that the El Grande Plant uses screens to remove oversized particles which
form in the furnace and to reniove ''tramp" material from the final product. He testified that the
screening is necessary to produce a ''uniform particle size" for its two main customers. (Ex. S-18
at 5). The product sold to US Gypsum is passed through a 7 4 mesh screen, while the product
sold to Hamilton Materials is passed through a 60 mesh screen. Kirk believes that sizing occurs
because the processes at 't he plant separate perlite particles of mixed sizes into groups of particles
of the same size or within a similar range of sizes. (Ex. S-18 at 5).
Radford testified that the perlite received atthe El Grande Plant has already been
screened at the mine to very specific sizes. He states that the "ore [from the mines] has to be
within a certain specification or when it is placed into the Antonito processing facility it would
make an out-of-spec product .. . . [T]he size of the·product produced at Antonito is directly
dependent on the ore that is received from the two mines." (Tr. 210). Thus, the El Grande·Plant
uses different feed ·stock from the mines when it makes its two product lines. (Tr. 210-11 ).
Radford :further testified that the screening system at the plant is not essential and that the
pmpose of the screen is "quality control." (Tr. 213-14). The ''tramp bag" actually contains a
large amount of material that would fall through the screens if :further screening were performed.
There is no separating of small and large microspheres into two separate bags. The tramp bag
contains material that meets product specifications, out-of-spec material, and foreign matter. He
stated that the material in the tramp bag is one percent or less of the total volume of material
produced at the plant (Tr. 173). Dicaperl contends that all sizing occurs at the mills at the two
mines and that the screens at the plan~ are only used to keep foreign materials and over-sized'
perlite out of the product bags. The screens at the plant do not separate particles of mixed sizes
into groups of particles of all the same ~e, or into groups in which particles range between.
.·
maximum and minimum sizes.

I find that the Secretary established that sizing takes place at the El Grande Plant. The
screens are used to make sure that similar sized particles are placed into the product bags for its
two major customers. Calling the screening process "quality controP' does not change this fact.
The definition of sizing does not contemplate that a certain percentage of material must be
separated out to qualify under the definition. In addition, I am not persuaded byDicaperl's
argument that sizing does not occur because "a significant amount of material that is smaller than
the mesh size also ends up in the tramp material bag." (D. Br. 20-21). The Secretary does not
dispute that sizing also occurs at the No Agua and Socorro Mines: Although different feedstock
is used to make different products at the plant, the screening process at the plant still separates
perlite particles of mixed sizes into products that meet a specific product's size specifications by
eliminating oversized particles and foreign material. The Perlite Institute .equates "sizing" with
sorting and argues that since no sorting of product occurs at the plant, sizing is not performed.
(PI Br. 11 ). This argument too narrowly interprets the definition of s~g. The.screens sort
material into two gr<;mps: (1) perlite that meets size and other product specifications, and (2)
foreign material, oversized perlite, and perlite that failed to fall through the screen. The
Secretary's position is reasonable and is a ''permissible construction~' of the term milling.

28 FMSHRC 732

Based on the above, I find that the Secretary's conclusion that the El Grande Plant is
subject to Mine Act jurisdiction because it is a mill is reasonable and is entitled. to deference.
Several other factors set forth in the Interagency Agreement also weigh in favor ·of MSHA
jurisdiction. First, the Secretary bas promulgated safety and health standards which are
applicable to the plant. .The citations and prders at issue involve alleged violations ofMSHA's
safety standards dealing \Yith such subjects as safe ~ess, falling hazards, guarding of moving
machine parts, and good housekeeping. MSHA' s inspectors have expertise with respect to
hazard prevention in these areas. The hazards alleged to be present at the El Grande Plant, as set
forth in the subject citations and orders, do not present issues which are outside of MSHA's
expertise. MSHA has been inspecting the plant since the Mine Act was passed and its inspectors
are familiar with the working conditions at the plant. The hazaids at issue in these ~ases are not
different from the hazards presented at other facilities that perform milling. In addition, because
Dicaperl has been subject to the jurisdiction ofMSHA at the plant and its mines, it has been an
"operator" for a considerable length of time with the result th.at it is familiar -with the
requirements ofMSHA's safety and health standards. Although I limited my discussion to the
heat expansion process and the sizing operations at the plant, all of the processes at the plant are
geographically and technologically related to each other. Finally, Dicaperl was provided with
fair notice of Mine Act jurisdiction because MSHA has been inspecting the plarit for many
years. 2
.

.

2

The Secretary also argued that the plant is a mill because-it engages in ..heat expansion." That
term is defined in .Appendix A of the Agreement. "Heat expansion" is defined as "a process for
upgrading"niaterial by sudden heating of !he substance in a rotary .kilii or sinter hearth to cause
the material to bloat or expand to produce a lighter material per unit of volume." (Ex. S-17 at 8).
Kirk admitted that the El Grande Plant does not use a rotary kiln or sinter hearth, but he argues
that the vertical furnace used at the plant is simply an advancement over more tradition;;µ
equipment. Radford convincingly testified that vertical furnaces have been used in the perlite
industry since the 1950s, long before the Interagency Agreen1ent was drafted, and that no perlite
expansion facilities use rotary kilns or sinter hearths. The Secretary provides no reasonable
argument to explain why the drafters of the Jnteragency Agr'.eement mentioned industry-specific
heating vessels if they wanted to include a wider rimge offmnaces. She asks the Commission to
ignore those words in the definition. Ignoring k~y words or phrases in the Secretary's own
interpretation of the term "heat expansion" is not reasonable and is not a ')>ennissible
construction" of the definition. A vertical furnace is not a type rotary kiln or sinter hearth.
Consequently, I did not rely on the definition of "heat e~ansion" in reaching my conclusion.

of

The Secretary also asks the Commission to find that Dicaperl ~gages in '1ciln treatment" at the
plant The Interagency Agreement defines "kiln treatment'' as "the process of roasting, calcining,
drying, evaporating, and otherwise upgr~g mineral products through the application of heat>•
(Ex. S-17 at 8). Kirk belieyes that the "kiln ~txnent'' provision can "fairly be called a 'mineral
heating catchall.' " (Ex. S-18 at 6). He calls it a "catch-all" ·a pplication because the definition
contains the phrase "otherwise upgrading mineral products through the application of heat." I
find that it de.fies logic to believe that the vertical furnace at the plant performs a function that is
28.FMSHRC 733

B. Consistency in the Secretary's Interpretation.
Although the Secretary has consistently enforced the Mine Act at the El Grande Plant,
Dicaperl contends that the Secretary's interpretation of the·futeragency Agreement offered in
these cases is inconsistent with her longstanding position with respect to other perlite expansion
facilities. (D. Br. i7). I find that Dicaped's arguments in this regard are in the nature of an
affirmative defense.
Dicaperl argues that as early as 1984, MSHA determined that perlite expansion facilities
not located on mine property, i.e., property where extraction takes place, would not be subject to
MSHA jurisdiction. In a memorandum authored by Roy'L. Bernard; Administrator for
Metal/Nonmetal, MSHA determined that vermiculite expansion facilities "which are
geographically and operationally separate from mining operations shall be subject to [OSHAJ
jurisdiction." (Ex. C-6). Based on that memo, the MSHA southeast district manager determined
that a perlite expansion facility in Jacksonville, FJorida, should also be inspected by OSHA: (Ex.
C-7). fu the memo, the district manager states that the Florida plant receives '4previously crushed
perlite by rail from a mine in Oklahoma,'' it "heat expand[s]" the perlite, and then bags the
product for shipment by ''truck or rail to be used in.potting soil or concrete block."' Id. As
grounds for the decision to place the plant under OSHA jurisdfotion, the menio states that the ·
"determination is consistent with past jurisdictioruil det~ations that perlite and vermiculite
operations which are geographicaily and operationally separate from mining operations shall be ·
subject to OSHA's jurisdiction." Id. Dicaperl maintains that Chemrock~s Jacksonville plant is ·
substantially similar to its El Grande Plant:
·
·
Dicaperl presented other evidence to support.its'position that the Secretaryis·incon8istent
in her exercise ofjurisdiction over facilities that are substantially similar to the El Grande Plant.
Dicaperl' witnesses testified that various other perlite facilities use processes that are

s

related to kiln treatment. A "kiln" can be defined as: "(a) A large :furnace used for baking,
drying, or burning firebrick or refractories, or for calcining ores or other substances. (b) A
furnace or oven, which is usually made from refractory brick, used to dry and fire various types
of ceramic ware." Am. Geological Institute, Dictionary ofMining, Mineral; and Related Terms
297 (2d ed. 1997). The Secretary's interpretation of her futeragency Agreement to conclude that
Dicaperl performs·kiln treatment at the plant is unreasonable and is not a permissible
interpretation of the Agreement.
My findings in this regard do not affect my holding that the Secretary reasonably interpreted the ·
term "milling" to include the El Grande Plant under Mine Act jurisdiction. The hiteragency
Agreement lists certain processes in Appendix A, such as "kiln treatment" and ·" heat expansion,"·
under the heading "Specific Examples ofMSHA Authority." (Ex. S-17 at 5). These examples
do not limit or restrict the general definition of "milling" provided in the Agreement. I have
relied on the Secretary's definitions of"milling'' and·"sizing'' iil reaehiilg my conclusion that
MSHA's enforcement of safety standards at the plant is reasonable.
28 FMSHRC 734

"substantially similar" to that used at the El Grande Plant. (D. Br. 6-8). In response to discovery,
the Secretary identified 26 similar perlite facilities that are not being inspected by MSHA (Ex.
C-10). Dicaperl points out that the Secretary is required by law to exercise enforcement
jurisdiction over all mines and milling operations pursuant to sectio:µ 103(a) of the Mine Act.
She do.e s not have discretion "to exercise selective enforcement over facilities ofher choosing."
(D. Br. 30). Dicaperl also. states that.the
.
.evidence establishes that MSHA exercised jurisdiction
over a number of perlite expansion facilities in the past, but subsequently abandoned such
jurisdiction. (Exs. C-2, C-3). This fact further illustrates the Secretary's failure to consistently
enforce the Mine Act at perlite expansion facilities. In sum, the Secretary's.interpretation of the
tenn "milling" in these cases is inconsiste.q.t with the Secretary's past enforcement at other perlite
expansion facilities. "The continued inclusion of the El Grande Plant under MSHA 's
jurisdiction, while other perlite expansion facilities are not under the agency's jurisdiction, defies
common sense and leads to the bizarre result of a single facility in the industry being under
·
MSHA' s jurisdiction while its competitors in the same industry ar~ under OSHA's jurisdiction."
(D. Br. 32) (citing Nat'/ Cement Co. Of Cal. Inc., 27 FMSHRC 721, 728-29 (Nov. 2005).
The Secretary contends that Dicap~l's arguments are irrelev:ant and that the only issue is
whether her application of the Intemgency Agreement to the El Grande Plant is reasonable~
Second, she argues that, although MSHA has detennined that it shouid not exercise jurisdiction
over venniculite facilities not otherwise located ai a mine, 'i t has not issu~d a simiiar policy for
perlite facilities. The Secretary points ~ut that MSHA has been llispecting the El Grande Plant
since 1979 and that she is currently inspecting 10 other perlite mines or mills. (Tr. 244-45; Ex.
C-3). The decision by the locai office ofMSHA.to stop.inspecting.the perlite facility.in Florida
"appears to have been a local resource--Oriven determination [that is] pemritted under sectfon
B(5) ofthelnteragency Agreement." (S. Br: .2~, f~tnote omitted).
The Secretary contends that, although other perlite facilities may be similar to the El
Grande Plant, there may be important differences. Jason Guzek, Vice President of Operations at
Belmont Holdings Corporation,3 and Mr. Radford testified about several perlite facilities which
they alleged were not being inspected by MSHA. (Tr. 225-31, 281, 289-302; D. Br. 6-9). The
Secretary contends that local MSHA officials often make these jurisdictional determinations
based on unique factual circumstances. For example, some of these other perlite facilities
actually make finished products such as ceiling tiles, fire doors, potting soil and filter media at
the same location. (Tr. 240-42, 306-07). Other facilities.do not screen perlite. (Tr. 229, 240).
Other facilities process perlite that has already been expanded at the El Grcmde Plant. (Tr. 106,
Ex. S-22). The Secretary also contends that Respondent did not offer any.technical details about
the processes that occur at these other facilities. The evidence shows that the perlite industry
consists of "plants of varied design and function that require a case-by-base jurisdictional
determination to be made by MSHA and OSHA taking into .consideration the factors set forth in
.
·
sections B(3)-(5) of the Jnteragency Agreement." (S. Br. 28).

3

Dicaperl is a subsidiary of Belmont Holdings Corporation. Mr. Guzek oversees production,
efficiency and personnel matters for Belmont..
28 FMSHRC 735

I find that the arguments presented by Dicaperl and the Perlite Institute are not very
persuasive. At the hearing, the Secretary objected to the introduction ofDicaperl's evidence on
MSHA's lack of enforcement at other perlite facilities on the growids that such evidence was
irrelevant to the issue whether the El Grande Plant is a mill. Although I overruled the Secretary's
objections, I agree th~t MSHA's failure to inspect other perlite facilities is not relevant to the
issue whether the Secretary has the authority to enforce MSHA's standards at the El ·Grande
Plant. Moreover, I hold that Dicaperl did not establish that the Secretary's enforcenientpolicies
are fatally inconsistent. Although perlite expansion facilities may be similar, they.are not .exactly
alike. For example, the memo in which local MSHA officials announced that MSHA would stop
inspecting the Jacksonville, Florida, plant noted that potting soil -had been manufactured at the
plant and that "this finished product may again be manufactured in the future." (Ex. C-7). This
type of case-by-case factual detennination is committed to agency discretion under the .
futeragency Agreement. The Agreement specifically gives the agency flexibility when evaluating
what constitutes mineral milling for purposes of MSHA enforcement. The Secretary is given the
authority to expand or narrow the scope of the -tenn ''inilling" depending on geographic and
technologic factors. This flexibility is especially important "in operations near the termination of
the milling cycle and the beginning of the manufacturing cycle.'' (Ex. S-17 at 2). It would be
quite cumbersome and impractical for Commission judges, when evaluating whether a facility is
a mill subject to MSHA jurisdiction, to evaluate whether MSiiA should be exercising
jurisdiction at other similar facilities. There are too may factors that come into play and the
Secretary has been granted broad authority to exercise her discretion when determining what is a
mill under the Mine Act.
Dicaperl' s argument that MSHA does not have the authority to "exercise selective
enforcement over facilities of its choosing, while -n ot exercising jurisdiction over other facilities
that fit within the definition of mining or milling," is not well taken because it misstates the
issue. (D. Br. 30). The Secretary is not arguing that she has the authority to waive Mine Act
jurisdiction at mineral milling facilities, she is arguing that she has the authority to determine
what is mineral milling for purposes of the Mine Act. As long as her determination is
reasonable, that decision is within her discretion. As stated above, the Secretary is not required
to apply a technical definition of milling when determining whether the safety of employees at a
facility is best served by MSHA or OSHA inspections. · Practical considerations; including.the
"convenience of administration," can be factored into her analysis. The "convenience of
administration" clause of section 3(h)(l) [of the Mine Act] is a broader concept than the need to
eliminate overlapping jurisdiction." Watki.ns, 24 FMSHR.C at 674 n. 8 (citation omitted). ·
MSHA has been inspecting the El Grande Plant for about 27 years. The Interagency Agreement ·
contemplates that, when determining what "constitutes mineral milling," the Secretary can
consider the "expertise and enforcement capability of each agency with respect to the safetY and ·
health hazards associated with all the processes conducted at the facility." (Ex. S-17 at 2). In
this case, I find that her decision to assign MSHA the authority to inspect all the processes at the
El Grande Plant to be reasonable and is entitled to deference.

28 FMSHRC 736

The U.S. Court of Appeals for the District of Columbia Circuit, recently held that the
..Commission is generally without authority to review the Secretary's discretionary d~isions
regarding whether to cite owner-operators, their independent contractors, or_both for safety
violations committed by the independent contractors." Secy ofLabor v. Twentymile Coal Co.,
No. 05-1124, 2006 WL 1867249, at *10 (DC Cir. July 7, 2006). The court based its deci~ion, in
part, on the fact that the Mine·Act does not provide a "meaningful standard" against which to
judge MSHA' s exercise .o f discretion on that issue. Id. at *6. It found that the Mine Act is
"utterly silent on the manner in which [MSHA] is to proceed against a particular transgressor."
Id. at *6 {citation omitted). I note that the Mine Act provides a very_ loose standard against which
to judge MSHA' s exercise of discretion when determining whether a facility performs milling. I
have not relied on Twentymile but have determined that the Secretary's exercise of discretion in
this case to be reasonable based on the language of the_Mine Act and the guidelines and
definitions set forth in her Interagency Agreemep.t. ·

IV. ORDER
For the rea.sons set forth above, I find that the Mine Safety and Health Administration has
jurisdiction to.inspect the El Grande Plailt. Consequently, Dicaperl Mineral Coworation's
motion to dismiss these cases is DENIED.

Richard W. Manning .
Administrative Law Judge
Distribution:
Karen L. Johnston, Esq.,.Jackson & Kelly, 1099 18th Street, Suite 2150, Denver, CO 80202 · ·
(Certified Mail)
John Rainwater, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202-3025 (Certified Mail)
Michael T. Heenan, Esq., Ogletree, Deakins,-Nash, 2400 N Street, 5th Floor, Washington, DC
20037-1153 (First Class Mail)

RWM

28 FMSHRC 737

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

August 8, 2006

MARFORK COAL COMPANY, INC.,

CONTEST PROCEEDINGS

Contestant
Docket No. WEVA2006-707-R
Citation No. 7239942; 05/22/2006

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

Docket No. WEVA 2006-708-R
Citation No. 7239943; 05/22/2006
Docket No. WEVA 2006-709-R
Citation No. 7239946; 05/23/2006
White Queen
Mine ID 46-8297
Docket No. WEVA 2006-710-R
Citation No. 7253955; 05/22/2006
Brushy Eagle
Mine ID 46-8315
Docket No. WEVA 2006-711-R
Citation No. 7254891; 05/23/2006
River Fork Powellton #1
Mine ID 46-08914
Docket No. WEVA 2006-760-R
Citation No. 7257562;06/26/2006
Slip Ridge Cedar Grove Mine
Mine ID 46-09048
Docket No. WEVA 2006-752-R
Citation No. 7254904;06/07/2006
Docket No. WEVA 2006-753-R
Citation No. 7254905;06/07/2006

28 FMSHRC 738

Docket No. WEVA 2006-754-R
· Citation No. 7254907;06/07/2006
Docket No. WEVA 2006-755-R
Citation No. 7254911 ;06/1212006
Docket No. WEVA 2006-756-R
Citation No. 7254912;06/1212006
Docket No. WEVA 2006-757-R
Citation No. 7254915;06/12/2006
DocketNo. WEVA2006-758-R
Citation No. 7254917;06/14/2006
River Fork Powellton # 1
Mine ID 46-08914
Docket No. WEVA 2006-770-R
Citation No. 7254922;06/26/2006
Docket No. WEVA 2006-771-R
Citation No. 7254928;06/26/2006
Docket No. WEVA 2006-772-R
Citation No. 7254939;06/26/2006
Docket No. WEVA 2006-773-R
Citation No. 7254930;06/26/2006
Docket No. WEVA 2006-774-R
Citation No. 7254931 ;06/26/2006
DocketNo. WEVA2006-775-R
Citation No. 7254932;06/26/2006
Docket No. WEVA 2006-776-R
Citation No. 7254933;06/26/2006
Docket No. WEVA 2006-777-R
Citation No. 7254935;06/26/2006

28 FMSHRC 739

Docket No. WEV A 2006-778-R
Citation No. 7254937;06/26/2006
Marsh Fork Eagle Mine
Mine ID 46-08913
Docket No. WEVA 2006-791-R
Citation No. 7247599; 06/28/2006
.Docket No. WEVA 2006-792-R
Citation No. 7247600; 06/28/2006
White Queen Mine · ·
Mine ID 46-08297

STAY ORDER
AND
ORDER LIMITING DISCOVERY
The Secretary has filed a motion to stay the above contest matters pending the docketing
and assignment of the related civil penalty case. The Contestant does not oppose the
Secretary's motion. Accordingly, in the interest of administrative efficiency, these proceedings
ARE STAYED. IT IS ORDERED that the parties initiate a conference call with the
undersigned within 21 days of the docketing and assignment of the pertinent civil penalty case to
lift this stay and to schedule these matters for a consolidated hearing.
The Secretary, in her stay motion, requests that the operator should be ordered to provide
periodic status reports concerning the progress of the related civil penalty matters. The
Contestant opposes the Secretary's suggestion. This issue is moot as I have not ordered any
status reports with respect to the progress of the Secretary's civil penalty proposal
There are 24 contested citations in these proceedings. In instances where contests are
stayed to await the Secretary's proposal of civil penalties, postponing discovery wi.til the
Secretary's proposal is presented to the operator facilitates settlement discussions and ]riay

28 FMSHRC 740

obviate the need for.discovery on some or all of the citations in issue. fu order to avoid the
undue burden or expense that may result from needless discovery, pursuant to Commission
Rule 56(c), 29 C.F.R. § 2700.56(c), IT IS ORDERED that discovery shall be limited to periods
when these matters are no longer on stay. 1

Jerold Feldman
Administrative Law Judge
(202) 434-9967
· Distnoution: (Certified Mail)
Carol Ann Marunich, E~q., Robert H. Beatty, Jr., Esq., Dinsmore & .Shohl, LLP,
2604 Cranberry Square, Morgantown, WV 26508
Mark R. Malecki, Esq., Glenn M. Loos, Esq., Daniel M: B~ Esq., Francine A. Serafin, Esq.,
Robert S. Wilson, Esq.; Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nc1 Floor West, Arlington, VA 22209-2247
/mh
.,

1

.

An operator served with a citation alleging a violation of the Mine Act, or alleging a
violation of a mandatory safety standard that has been abated, may im.mediate)y contest the
citation under section I 05(d)' without waiting for noti.1ication of the proposed penalty assessment.
30 C.F.R. § 815(d). In such cases, section IOS(d) provides that "the Commission shall afford an
opportunity for a hearing." An operator may have an interest in an early hearing, such as in cases
where continued abatement is expensive, or where the validity of the citation or order impacts
on an operator's continued exposure to 104(d) withdrawal sanctions. Energy Fuels Corporation,
I FMSHR.C 299, 307-08 (May 1979). Thus, the purpose ~fa contest proceeding is to adjudicate
the validity of a citation without waiting for the Secretary's proposed civil penalty. Absent a
reason to believe that an operator has a need for an early hearing, contests should not be filed
solely for the initiation of discovery when, as in this case, the operator elects to forgo its right to
an early hearing by acquiescing to a stay.

.
28 FMSHRC 741

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

601 New Jersey Avenue, N.W., SUite 9500
Washington, D.C. 20001

.

August 8,. 2006 .
CONTEST PROCEEDINGS

MARFORK COAL COMPANY, INC., .
Contestant

Docket No. WEVA 2006-666-R
Citation No. 7253941; 05/17/2006
Docket No. WEVA 2006-667-R
Citation No. 9967710; 05/18/2006

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

Docket No. WEVA 2006-668-R
Citation No. 9967723; 05/18/2006
· ~shy Eagle .

Mine ID 46-08315
Docket No. WEVA 2006-669-R
Citation No. 7239937; 05/16/2006

...

Doeket No. WEVA 2006-670-R
Citation No. 7239939; 05/16/2006
Docket No. WEVA 2006-671-R
Citation No. 7239935; 05/16/2006
White Queen
Mine ID 46-08297

ORDER CONTINUING STAY
ORDER DISMISSING MOTION FOR PROTECTIVE ORDER
AND
ORDER RESCINDING DISCOVERY
The Secretary's Motion to Stay these contest matters was ·granted by Order on
July 21, 2006, because the contestant did.not oppose the Secretary's motion. The Order
pennitted the parties to engage in discovery during the pendency of the stay.

28 FMSHRC 742

On July 27, 2006, Contestant's counsel served on the Secretary a Notice ofDepositions,
accompanied by subpoenas issued by Contestant's counsel, seeking to compel the attendance of
MSHA inspectors Albert Clark, Gerald Cook and James Wilson at a deposition at 9:00 a.m on
August 7, 2006. On August 3, 2006, the Secretary's counsel responded that he was not in
agreement with the Contestant's unilateral deposition schedule. Upon learning of the Secretary's
objections, in an August 3, 2006, facsimile, Contestant's counsel cautioned the Secretary's
counsel that he "could be subjecting the Secretary to sanctions" if he disregarded the subpoenas
and did not avail the MSHA inspectors for deposition on August 7, 2006. In the August 3, 2006,
correspondence, the Contestant claimed its desire for expeditious depositions was motivated
by a desire to complete discovery within 40 days of its initiation as specified in Commission
Rule 56(e), 29 C.F.R. § 2700.56(e). 1
On August 4, 2006, the Secretary filed a Motion for a Protective Order. Commission
Rule 57(b) provides that the judge shall specify the time, place and manner of taking depositions
if the parties are unable to agree. 29 C.F.R. § 2700.57(b). Thus, the unilateral deposition date is
contrary to the Commission's Rules. It follows that the Secretary's disinclination to attend is not
a sanctionable event. Consequently, the parties were advised during a August 4, 2006, telephone
conference that the Secretary's Motion shall be dismissed as moot.

Although the July 21, 2006, Order permitted discovery despite the stay, I now believe that
discovery while these matters are stayed·for consolidation with the civil penalty proceedings is
neither wise nor an efficient use ofjudicial resources. In instances where contests are stayed,
postponing discovery until the civil penalties are proposed facilitates settlement discussions and
may obviate the need for discovery. In order to avoid the undue burden or expense that may
result from needless discovery, pursuant to Commission Rule 56(c), 29 C.F.R. § 2700.56(c),
discovery shall be limited to periods when these matters are not on stay.2

The time constraint In Rule 56(e) is routinely extended by agreement of the parties or by
order of the judge.
1

2

An operator served with a citation alleging a violation of the Mine Act, or alleging a
violation of a mandatory safety standard that has been abated, may immediately contest the
citation under section I 05(d) without waiting ·for notification ofthe proposed penalty assessment.
30 C.F.R. § 815(d). In such cases, section 105(d) provides that "the Commission shall afford an
opportunity for a hearing." An operator may have an interest in an early hearing, such as in cases
where continued abatement is expensive, or where the validity of the citation or order impacts
on an operator's continued exposure to 104(d) withdrawal sanctions. Energy Fuels Corporation,
1 FMSHRC 299, 307-08 (May 1979). Thus, the purpose of a contest proceeding is to adjudicate
the validity of a citation without waiting for the Secretary's proposed civil penalty. A contest
may not be used solely for the initiation of discovery when, as in the current case, the operator
elects to forgo its right to an early hearing, instead opting to await the civil penalty proceeding.

28 FMSHRC 743

In view of the above, IT IS ORDERED that the Secretary's Motion for a Protective
Order IS DISMISSED as moot.
IT IS FURTHER ORDERED that the stay in these contest proceedings
IS CONTINUED.

IT IS FURTHER ORDERED that tb,e provision in the July 21 Stay Order
permitting discovery IS RESCINDED.

This order supetcedes the directive given to the parties during the August 4, 2006,
telephone conference concerning their submission of stipulated satisfactory deposition dates on
August 14, 2006, for the pwpose ofjudicial establishment of discovery schedules in these

matters.

Jerold Feldman
· Administrative Law Judge
Distribution: (Certified Mail)
Robert H. Beatty, Jr., Esq., Dinsmore & Shohl, LLP,.2604 Cr:anberry Square, Morgantown, WV
26508

Glenn M. Loos, Esq., Roberf S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor,
1100 Wilson Blvd., 2200 Floor West, Arlingtoll, VA 22209-2247

/mh

28 FMSHRC 744

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

Washington, D.C. 20001

August 11, 2006

CONTEST PROCEEDINGS

MARFORK COAL COMPANY, INC.,
Contestant

v.

....

Docket No. WEVA 2006-788-R
Citation No. 7257574; 06/27/2006 · ·
Docket No..WEVA 2006-789-R
Citation No. 77257575;06/27/2006

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

ADMINISTRATION, (MSHA),

Docket No. WEVA 2006-790-R
Citation No. 7257568;06/27/2006

Respondent
Slip Ridge Cedar Grove Mine
Mine ID

ORDER TO SHOW CAUSE
These proceedings are before me based on a Notice of Contest of the subject citations
filed with the Conunission on July 10, 2006, pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977, as amended, (the Mirie Act), 30 C.F.R. § 815(d). In its contests, .
Marfork Coal Company, Inc., (Marfork) denies each and evexy allegation contained in the
contested citations. Marfork identifies the relief sought in its contest as "issuance of an Order
directing·that all the subject Citations be vacated and dismissed.'~ (Maifork Contest, p.3).
Such an Order can only be issued after a hearing on the merits of the contested citations.
The Secretary filed an answer to Marfork's contests on July 27, 2006, in which she
moved to stay these matters pending the related civil penalty cases. The Secretary' s answer
noted that "counsel for the Contestant has indicated ... that he has no objection to this motion."
(Sec '.Y Mot., p.2). The Secretary's answer was accompanied by a cover letter stating:
[Marfork's] Counsel has also indicated that it is the operator' s intention to :file
notices of contest of all significant and substantial citations and orders but will
agree to continuances of those cases involving 104(a) citations. While it is the
Contestant' s prerogative to :file duplicative contest and civil penalty proceedings
pursuant to the Commission' s rules, the Contestant's policy of always filing a
notice of contest and then agreeing to a stay seems to be a needless use of the
Commission's and Secretary's resources. This is especially true when the
operator can contest both the civil penalty and the underlying citation when the
civil penalty is proposed.

28 FMSHRC 745

An operator served with a citation alleging a violation of the Mine Act, or alleging a
violation of a mandatory safety standard that ha8 been abated, may immediately ·contest the
citation under section l 05(d) of the Mine Act without waiting for notification of the proposed
penalty assessment. 30 C.F.R. § 815(d). In such cases, section 105(d) provides that ''the
Commission shall afford an opportunity for a hearing." An operator may have an interest in an
early hearing, such as in cases where continued abatement is expensive, or where the validity of
the citation or order impacts on an operator's continued exposure to I 04(d) withdrawal sanctions.
Energy Fuels Corporation, l FMSHRC i99, 307-08 (May 1979). Thus, the purpose of a 105(d)
contest proceeding is to adjudicate the validity of a citation without waiting for the Secretary's
proposed civil penalty.
Alternatively, if the operator does not immediately contest a citation after it is issued, the
operator may wait to contest the citation in a civil penalty proceeding pursuant to section 1OS(a)
of the Mine Act. 30 C.F .R. § 815(a). Waiting to contest citations until after the civil penalty is
proposed facilitates settlement negotiations and limits discovery to citations tfil!.t can only be
resolved through litigation.
·
Commission Rule 20, 29 C.F.R. § 2700.20, implements the contest provisions of
section 105(d). Commission Rule 20(e)(1 )(ii) provides that a notice of oontest shall provide a
plain statement of the relief requested. The relief requested by Marfork is a Commission hearing
on the merits of the citations without waiting for the Secretary's proposed civil penalties.
By filing a contest on July 10, 2006, seeking an early adjudication, only to agree
shortly thereafter to stay its contest pending the civil penalty case, it appears that Marfork is,
in substance, waiting for a disposition on the merits after the civil penalty is proposed.
In other words, Marfork has not adequately articulated the relief it seeks in its 105(d) notice
of contest, since it has elected to wait for the 105(a) civil penalty matter.
The Commission's processing ofMarfork's 105(d) contests requires the duplication of
docket files with incidental copying and storage for both the contest dockets and the ultimate
civil penalty docket. Moreover, Marfork' s 105(d) Notice of Contest requires proforma rulings
on stay motions that are lacking in substance. I am also cognizant of the Secretary's burden of
answering multitudes of 105(d) contests, only to await duplication of her answers in the
ultimate civil penalty proceedings. Simply put, a stay order postpones the pre-civil penalty
hearing requested by Marfork; a hearing that Marfork implicitly concedes it does not want.
I miss the point. I look forward to Marfork' s explanation.

28 FMSHRC 746

In view of the above, Marfork IS ORDERED TO SHOW CAUSE, in writing,
within 21 days from the date of this. Order, why its 105(d) Notice of Contest of the subject
citations _should not be dismissed because of its apparent contravention of Commission
Rule 20(e)(l)(ii), and because it is a duplicative and needless.consumption of the Conµnission 's
resources. The Secretary shall be afforded the opportunity to reply to Marfork' s ~onse to the
Order to Show Cause within 10 days thereafter.

Administrative Law Judge
Distribution: (Certified Mail)
RobertH. Beatty, Jr., Esq., Dinsmore & Shohl, Ll..P, 2604 Cranberry Square, Morgantown, WV
26508
.

GlennM. Loos, Esq., Q~ce of the Solicitor, U.S. Department ofLabor, 1100.WilsonBlvd.,
· 22°d.Floor West, Arlingtol;l, VA 22209-2247
·
/mh

28 FMSHRC 747

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

August 14, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No, WEST 2003-451-M .
A. C. No. 02-01691-05844
Docket No. WEST 2004-76-M
A. C. No. 02-01691-10445

v.
Docket No. WEST .2004-103-M
A . C. No. 02-01691-12689
Docket No. WEST 2004-196-M
A. C. No. 02-01691-17038

QMAX COMPANY,
Respondent

Portable J;>lant for ·Q max Co.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 2005-61-M
A. C. No. 02-01691-27590A

v.
JAMES L. FANN, Employed by
QMAX COMPANY,
Respondent

Portable Plant for Qmax Co.

ORDER ADDRESSING SURVIVABILITY OF CLAIM
AGAINST INDIVIDUAL AGENT OF OPERATOR
Docket No. WEST 2005-61-M presents a claim for imposition of a civil penalty again~t
James L. Fann under section llO(c) of the Act. 30 U .S.C. § 820(c). As noted in Respondents'
post-hearing brief: James L. Fann died on May 28, 2006. By Order dated July 3, 2006, the
Secretary was directed to submit a memorandum stating her position with respect to the viability
of the section l lO(c) claim in light of Mr. Fann's passing. The Secretary has taken the position
that she will pursue .the claim as it presently stands. While the Secretary has, at least tacitly,
taken the position that the section l lO(c) claim survived Mr. Fann' s death, she did not cite any
authority or present any legal argument on that issue.

28 FMSHRC 748

In general, the survival of a federal cause of action is, in the absence of an expression of
contrary intent, a question of federal common law. Actions that are remedial generally survive,
and actions that are penal generally do not. U.S. v. NEC Corp., 11F.3d136 (11th Cir. 1993);
Smith v. Dept. ofHuman Services, State of Oki., 876 F .2d 832, 834 (lOth·Cir. 1989);
International Cablevision, Inc., v. Sykes, 172 F.R.D. 63 (W.D.N.Y. 1997); and see Sinito v. U.S.
Dept. ofJiJstice, 176 F.3d 512 (D.C.Cir. 1999).
There is nothin~ in the Mine Act addreSsing the survivability of claims arising
there1Dlder, or suggesting that established rules regarding the abatement of actions upon the death
of a party should not apply to claims under the Act. While the de~rmination of whether a
particular claim is "penal" or ''remedi31,, for purposes of survivability can present difficult
issues, 1 it appears that a claim under section 110(c) of the Act seeking imposition of a civil
penalty against an individual corporate director, officer or agent is penal in nature. Accordingly,
under federal common law, the action ~ould abate upon the death of the individual charged.
While there does not appear to be any dispute as to Mr. Fann's passing, his death has not
been formally noted on the record. Nor has any potential successor entity, e.g., his estate, or a
proper party representative been identified. Accordingly, Elaine P. Fann is directed to file a
suggestion of death, including a copy of the death certificate, in the form referenced in Rule 25,
Federal Rules of Civil Procedure.2 Filiilg should be made within 20 days. If, within 14 days
after the filing of the suggestion of death, the Secretary has not shown good cause why the claim
should not be dismissed, the claim against James L. Fann under section 110(c) of the Act will be
dismissed.

1

See NEC, supra; Smith v. No. 2 Galesburg Crown Finance Corp., 615 F.2d 407, 414
(7th Cir. 1980) (overruled, in part, on other grounds, Pridegon v. Gates Credit Union, 883 F.2d
182, 193-94 (7th. Cir. 1982)). In determining whether a particular claim is penal or remedial,
courts typically·consider three factors: (a) whether the purpose of the statutory claim was to
redress individual wrongs or wrongs to the public; (b) whether the recovery goes to the
individual or the public; and (c) whether the recovery is disproportionate to the harm suffered.
NEC, 11 F.3d at 137; Smith, 876 F.2d at 835; Sykes, 172 F .R.D. at 67.
2

The suggestion should include the caption of this case, a copy of the death certificate,
and a certificate of service on the Secretary. The body of the suggestion should ·state:
.

· Elaine P. Fann [or other appropriateperson]," as [executor, administrator, or
other representative or successor] of James L. Fann, suggests upon the record the
·death of James L. Fann during the pendency of this action.
28FMSHRC 749

Distribution:
Isabella M. Del Santo, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson
Street, Suite 1110, San Francisco, CA 94105-2937
Elaine P. F~ c/o Qmax Company, P.O. Box 877, Williams, AZ. 86046

28 FMSHRC 750

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, D.C. 20001

August 17, 2006
CIVIL PENALTY PROCEEDINGS

SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. SE 2005-301-M
A. C. No. 01-02936-63063

v.

Docket No. SE 2006-131-M
A.C. No. 02-02936-78967

HOSEA 0 . WEAVER & SONS, INC.,
Respondent

Docket No. SE 2006-167-M
A.C. No. 01-02936-83942
Plant#l

ORDER DENYING MOTION TO CERTIFY
Jn these civil penalty proceedings the Secretary of Labor (Secretary), on behalf of her
Mine Safety and Health Administration (MSHA), petitions to assess Hosea 0. Weaver & Sons
(Weaver) civil penalties for three alleged violations of the Secretary's mandatory training
standards found in Part 46, Title 30, Code of Federal Regulations (C.F.R), and for ten alleged
violations of various mandatory safety and health standards for metal and nonmetal mines found
in Part 56, Title 30, C.F.R. The cases are scheduled to be heard on December 19, 2006, in
Mobile, Alabama.
A major issue in the cases, perhaps the major issue, is whether MSHA has jurisdiction to
issue the citations. Weaver contends it is not covered by the Act, that it is not a "mine'' as the
word is defined in section 3(h)(l ). 30 U.S.C. § 802(h)(l ). The Secretary takes the opposite
view. The parties' arguments are set forth in cross motions for summary decision.
On July 13, 2006, I granted the Secretary's motion and denied Weaver's motion. In
rejecting Weaver's contention that MSHA lacks jurisdiction, I noted that ifMSHA has
jurisdiction it is by virtue of the fact that the transportation, crushing and sizing of gravel at
Weaver's plant is "milling" within the meaning of section 3(h)(l). I found the agency properly
exercised its authority by applying the facts, as I understood them from the parties' pleadings, to
the statute and the Interagency Agreement between MSHA and the Occupational Safety and
Health Administration (OSHA). 44 Fed. Reg. 22, 827 (April 17, 1979), amended by 48 Fed.
Reg. 7, 521 (Feb. 72, 1983). Order 4. I also noted that in resolving jurisdictional questions "the
benefit of the doubt goes to the Secretary" and that this is especially true when the Secretary
chooses, as she has here, between MSHA and OSHA coverage. Id. 3-4.

28 FMSHRC 751

The parties have responded with a blizzard of paper. Weaver' s counsel has filed a motion
to certify the ruling for interlocutory review and, clairvoyantly as it turns out, a simultaneous
petition for discretionary review and an alternative petition for interlocutory review. The
Secretary has filed a motion to dismiss and an opposition to Weaver' s petitions.
Under the Commission's rules, the sole matter before me is Weaver' s motion to certify
the July 13 order for interlocutory review. I can do so only if I find: (1) that interlocutory review
involves a controlling question of law; and (2) that review will materially advance the final
disposition of the case. 29 C.F.R. § 2700.76(a)(l).
The motion to certify states that " [i]t is in the interest ofjudicial efficiency for the
Commission to determine whether or not the finding ofMSHAjurisdiction was legally and/or
factually erroneous before proceeding at the ALJ level." Mot. to Cert. Dec. 1-2. This is only
partly true. It is accurate to state that the question ofjurisdiction is a controlling question of law
(indeed, as I have noted, it is probably the controlling question), but it is not correct that
interlocutory review will materially advance the final disposition of the case. Ifit did, then,
interlocutory review w~uld be warranted for every order denying summary decision on
jurisdictional grounds, and clearly the Comniission' s rules do not contemplate that result.
Jurisdictional issues such as this are inextricably tied to the factual circumstances of the
facility and processes MSHA seeks to regulate. In the subject cases tpe parties have not
stipulated to the pertinent facts regarding those circumstances and processes. Rather, I have
interpreted the facts from the parties' pleadings. If, as Weaver argues to the Commission, I have
made critical factual errors in reaching my conclusion regarding the appropriateness ofMSHA's
jurisdiction, I fail to see how it will materially advance a resolution of the case to have the
Commission review the question based on a record devoid of stipulated and/or trial-based factual
findings.·

In my view, the best course for the parties is to proceed to hearing or to resubmit the
question based on joint stipulations of fact. Accordingly, Weaver's motion to certify is
DE.N IED .

y c,v; d f~~
David F. Barbour
Administrative Law Judge
(202) 434-9980

28 FMSHRC 752

Distribution:
Jack Powasn~ Esq., U .S. Department of Labor, Office of the Solicitor, 1100 Wilson Blvd., 22nd
Floor West, Arlington, VA 22209.- 2296
Adele L. Abrams, Esq., Law Office ofAdele L. Abrams, P .C., 4640 Corridor Place, Suite D,
Beltsville, MD 20705

/ej

28FMSHRC 753

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

August 21, 2006
CONTEST PROCEEDING

MARTIN COUNTY COAL CORP.,
Contes~t

v.

Docket No. KENT 2006-416-R
Citation No. 7433765; 06/20/2006

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

White Cabin #7
Mine ID 15-18452

NOTICE OF BEARING
~

PREBEARING ORDER
This contest proceeding is before me based on a Notice of Contest of the subject citation
filed with the Commission on July 21, 2006, pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977, as amended, (the Mine Act), 30 C.F.R. § 815(d).. On August 14,
2006, the Secretary moved to stay this matter pending consolidation with the yet to be docketed .
civil penalty case. The contestant has not agreed to stay this matter. The Secretary's motion IS
DENIED.

In accordance section 105(d) of the Mine Act, this proceeding is scheduled for hearing
on the merits on Wednesday, October 4; 2006, at 9:00 a.m., in the vicinity of Huntington,
West Virginia. 1 The specific courtroom in which the hearing will be held willbe designated-at a
later date. The matters of fact and law asserted are as stated in the pleadings.
In preparation for the hearing, the parties are directed to complete the following on or
before September 26, 2006: (a) confer on the possibility of settlement and endeavor to stipulate
as to all relevant matters which are not in substantial dispute; (b) endeavor to stipulate to the
issues of fact and law remaining for hearing, and, if unable to do so, exchange written
agreements as to the issues as contended by the respective parties; (c) exchange lists of exhibits,
and, at the request of a party, produce exhibits for inspection and copying; (d) stipulate to those
exhibits which may be admitted into evidence without objection and as to others indicate whether
the exhibit is accepted as an authentic document; and (e) exchange witness lists with a synopsis
of the testimony expected of each witness.

1

Any person planning on attending this hearing who requires special accessibility features
and/or any auxiliary aids (such as sign language interpreters) must request those in advance [subject
to the limitations set forth in 29 C.F.R. § 2706.150(a)(3) and§ 2706.160(d)].
28 FMSHRC 754

If the proceeding has not been settled, the parties are further directed to file with the
undersigned Administrative Law Judge on or before September 26, 2006, a written preheating
report setting forth (a) lists of exhibits and witnesses together with the parties' synopsis of
expected testimony (b) any stipulations entered into; (c) the parties' statement of the issues; and
(d) a memorandum of law on any legal issue raised by a party with citation to the principal
authorities relied upon. Failure to comply with any part of the prehearing order may result in
·
sanctions against the defaulting party.

Jerold Feldman
Administrative Law Judge.
202-434-9967
Distribution: (Certified Mail)

Ramonda C. Lyons, Esq., Dinsmore & Shohl, LLP, 2604 Cranberry Square,
Morgantown, WV 26508
Christian P. Barber, Esq. Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, 1N 37219-2456
Mark Malecki, Esq., Office of the Solicitor, U.S. Departnient of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209-2247

/mh

28 FMSHRC 755

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

SPARTAN MINING COMPANY,
Contestant

August 23, 2006
CONTEST PROCEEDINGS
Docket No. WEVA 2006-532-R
Citation No. 7460784; 05/ 13/2006
Docket No. WEVA 2006-533-R
Citation No. ·7062294; 05/13/2006

v.
Docket No. WEVA 2006-534-R
. Citation No. 6601514; 05/13/2006
Docket No. WEVA 2006-535-R
Citation No. 6601512; 05/ 13/2006
Docket No. WEVA 2006-536-R
Citation No. 6601510; 05/ 13/2006
Docket No. WEVA 2006-541-R
Citation No. 7460790;.05/ 15/2006
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent

Docket No. WEVA 2006-542-R
Order No. 7460793; .05/15/2006
LaurelCreek/Spirit~e

Mine ID 46-08387

ORDER DENTING

MOTION FOR RECONSIDERATION
These cases are before me on Notices of Contest under section 105(d) of the Federal
Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(d). At the request of the
Secretary, and without objection by the Contestant, proceedings in these matters were stayed on
July 18, 2006. The Secretary has now filed a Motion for Reconsideration of the stay order. The
Contestant objects to part of the Secretary's motion. For the reasons set forth below, ·the motion
is denied.
The Secretary first requests that "a clarification be issued to make clear that only the
scheduling of a hearing date ... is being stayed·and that the·parties are pennitted to engage in
discovery and other prehearing matters." (Mot. at 2.) The Secretary asserts that this "is
necessary to avoid any misunderstanding between the parties that may occur." (Mot. at 2.) The
Respondent does not object to this part of the motion.
28 FMSHRC 756

Section 105(d) of the Act and Commission Rule 20, 29 C.F.R. § 2700.20, permit an
operator to contest an order or citation without waiting for a civil penalty to be assessed. Energy
Fuels Corp., 1 FMSHRC 299, 308 (May 1979). In.Energy Fuels, the Commission noted that the
reason for this is that ''the operator's interest in immediately contesting the allegation of violation
and the special findings in a citation may be considerable" when "related withdrawal orders may
be issued before the Secretary has proposed a penalty." (Id.) However, the Commission went on
to say that if "the operator ... lacked a need for an immediate hearing, we would expect him to
postpone his contest of the entire citation until a penalty is proposed." (Id.)
Clearly, the operator in these cases does not have an immediate need for a hearing as it
has agreed to the stay. Nevertheless, rather than follow the advice of the Commission, the
operator's counsel has expressed the intention, according to the Secretary, of filing notices of
contest of all citations and orders that contain a finding of"significant and substantial." The
Secretary states that its Arlington office has '1-eceived more than 290 notice of contest cases in
the past two months.'" (Mot. At 3.) In its response, the Contestant does not deny this assertion, it
merely asseverates its right.to file a notice of contest.
Although not expressly stating so, it is apparent that the practice of filing a notice of
contest for every citation or order containing special findings is placing a significant burden on
the Secretary. More impo~tly, processing notices of contests requires the Commission's
Docket Office to prepare duplicate files for the same violation, with the incidental copying
associated therewith, and necessitates twice the storage space. It also requires the pro Jonna
ruling on unopposed stay motions in cases that were never intended to be contested immediately.
Permitting discovery in these cases may well result in needless time and expense for the
parties, who may conduct discovery on citations which would not even be contested once the
civil penalty is assessed. Moreover, superfluous discovery could involve the Commission in
mediating unnecessary discovery disputes. Therefore, pursuant to Commission Rule 56(c), 29
C.F.R. § 2700.56(c), discovery will be limited to periods when these matters are not stayed.
The Secretary also requests reconsideration of.the requirement in the stay order that she
periodically report on the status of the civil penalty cases corresponding to the contest cases and
asks that this requirement be placed on the Contestant. Not surprisingly, the Contestant objects
to this request.
This part of the motion is also denied. The Secretary requested the stay in these cases.
Of greater significance, the Secretary assesses the penalty in these cases and, therefore, is in a
much better position to know the status of the civil penalty cases than is the Contestant.
Furthermore, since the Secretary is in control of penalty assessments, she can determine how
long the cases are on stay by how quickly she assesses the penalty. For all of these reasons, I find
that counsel for the Secretary is the appropriate party to report on the status of the civil penalty
cases.

28 FMSHRC 757

Order
The filing of notices of contest for no apparent purpose places unnecessary burdens on all
areas of the system. There is no reason to add to those burdens by permitting discovery while the
cases are on stay. Additionally, the Secretary is the appropriate party to file status reports on
civil penalty cases being processed for orders and citations which are the subjects of notices of
contest. Accordingly, the Motion for Reconsideration is DENIED.

if~~L

T. ToddH~Tn~
Administrative Law Judge
(202) 434-9973

Distribution: (Certified Mail)
Robert H. Beatty, Jr., Esq., Carol Ann Marunich, Esq., Dinsmore & Shohl, LLP, 2604 Cranberry
Square, Morgantown, WV 26508
Elizabeth Lopes Beason, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Blvd., 22nc1 Floor West, Arlington, VA 22209-2247
/sb

28 FMSHRC 758

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

August 23, 2006
INDEPENDENCE COAL COMPANY,
Contestant

CONTEST PROCEEDINGS
DocketNo. WEVA2006-537-R
Order No. 6690161; 05/l4/2006
Docket No. WEVA 2006-538-R
Citation No. 6690162; 05/14/2006
Docket No. WEVA 2006-539-R
Citation No. 6690163; 05/14/2006
Docket No. WEVA 2006-543-R
Citation No. 7583418; 05/13/2006
Docket No. WEVA 2006-544-R
Citation No. 7583422; 05/13/2006
Docket No. WEVA 2006-545-R
Citation No. 6690079; 05/13/2006

v.

Docket No. WEVA 2006-546-R
Citation No. 6690080; 05/13/2006
Docket No. WEVA 2006-547-R
Citation No. 7427042; 05/13/2006
Docket No. WEVA 2006-548-R
Citation No. 6690076; 05/13/2006
Docket No. WEVA 2006-549-R
Citation No. 7583425; 05/13/2006
Docket No. WEVA 2006-550-R
Citation No. 7583426; 05/13/2006
Docket No. WEVA2006-551-R
Citation No. 7583427; 05/13/2006
Docket No. WEVA 2006-552-R
Citation No. 7583420; 05/13/2006
28 FMSHRC 759

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

Docket No. WEYA 2006-553,.R ·
Citation No. 7583421 ; 05/13/2006
Docket No. WEYA 2006-554-R
Citation No. 7427036; 05/12/2006
Docket No. WEYA 2006-555-R
Citation No. 7583406; 05/12/2006
Justice #1 Mine
Mine ID 46-07273

ORDER DENYING
MOTION FOR RECONSIDERATION

These cases are before me on Notices of Contest under section 105(d).ofthe Federal
Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(d). At the request of the
Secretary, and without objection by the Contestant, proceedings in these matters were stayed on
July 14, 2006. The Secretary has now filed a Motion for Reconsideration of the stay order. The
Contestant objects to part of the Secretary's motion. For the reasons set forth below, the motion
is denied.
The Secretary first requests that "a clarification be issued to make clear that only the
scheduling of a hearing date ... is being stayed.and that the parties are permitted to engage in
discovery and other prehearing matters." (Mot. at 2.) The Secretary asserts that this "is
necessary to avoid any misunderstanding between the parties that may occur." (Mot. at 2-3.)
The Respondent does not object to this part of the motion.
Section 105(d) of the Act and Commission Rule 20, 29 C.F.R. § 2700.20, permit an
operator to contest an order or citation without waiting for a civil penalty to be assessed. Energy
Fuels Corp., 1 FMSHRC 299, 308 (May 1979). In Energy Fuels, the Commission noted that the
reason for this is that ''the operator's interest in immediately -contesting the allegation of violation
and the special findings in a citation may be considerable" when "related withdrawal orders may
be issued before the Secretary has proposed a penalty." (Id.) However, the Commission went on
to say that if "the operator .. . lacked a need for an immediate hearing, we would expect him to
postpone his contest ofthe·entire citation until a penalty is proposed." (Id.)
Clearly, the operator_in these cases does not have an immediate need for a hearing as it
has agreed to the stay. Nevertheless, rather than follow the advice of the Commission, the
operator's counsel has expressed the intention, according to the Secretary, of filing notices of
contest of all citations and orders that contain a finding of"significant and substantial." The
Secretary states that it has "received more than 200 notice of contest cases from this law finn
over the past month." (Mot. At 3.) In its response, the Contestant does not deny this assertion, it
merely asseverates its right to file a notice of contest.
28 FMSHRC 760

Although not expressly stating so, it is apparent that the practice of filing a notice of'
contest for every citation or order containing special findings is placing a significant burden on
the Secretary. More importantly, processing notices of contests requires the Commission' s
Docket Office to prepare.duplicate files for the same violation, with the incidental copying
associated therewith, and necessitates twice the storage space. It also requires the proforma
ruling on unopposed stay motions in cases that were never intended to be contested immediately.
Permitting discovery in these cases may well result in needless time and expense for the
parties, who may condilct discovery on citations which would not even be contested once the
civil penalty is assessed. Moreover, superfluous discovery could involve the Commission in
mediating unnecessary discovery disputes. Therefore, pursuant to Commission Rule 56(c), 29
C.F.R. § 2700.56(c), discovery will be limited to periods when these matters are not stayed.
The Secretary also requests reconsideration of the requirement in the stay order that she
periodically report on the status of the civil penalty cases corresp·o nding to the contest cases and
asks that this requirement be placed on the Contestant. Not surprisingly, the Contestant 'objects
to this request.
This part of the motion is also denied. The Secretary requested the stay in these cases.
Of greater significance, the. Secretary assesses the penalty in these cases and, therefore, is in a
much better position to know the status of the civil penalty cases than is the Contestant. ·
Furthermore, since the Secretary is in control of penalty assessments, she can detennine how
· long the cases are on stay by how quickly she assesses the pen'alty. For all of these reasons, I find
that cotmsel for the Secretary is the appropriate party to report on the status of the civil penalty
cases.

Order
The filing of notices of contest for no apparent .purpose places unnecessary burdens on ~
areas of the system. There is no reason to add to those burdens by permitting ·discovery while the
cases are on stay. Additionally, the Secretary is the appropriate partyto file-status reports on
civil penalty cases being processed for orders and citations which are the subjects ofnotices of
contest. Accordingly, the Motion for Reconsideration is DENIED.

JJ//~
T. ToddH:~
Administrative Law Judge
(202) 434-9973 .

28 FMSHRC 761

Distribution List: (Certified Mail)
Robert H. Beatty, Jr., Esq., Carol Ann Marunich, Esq., Dinsmore & Shohl, LLP, 2604 Cranberry
Square, Morgantown, WV 26508
Elizabeth Lopes Beason, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Blvd., 22nc1 Fl. West, Arlington, VA

28 FMSHRC 762

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

Washington, D.C. 20001

August 25, 2006
ARACOMA COAL COMPANY, INC.,
Contestant

CONTEST PROCEEDINGS
:

Docket No. WEVA 2006-824-R
Citation No. 7253529; 07/13/2006

v.

Docket No. WEVA 2006-825-R
Order No. 7253530; 07/14/2006

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

Aracoma Alma Mine #1
Mine ID 46-08801

ORDER TO SHOW CAUSE

These proceedings are before me based on a Notice of Contest of the subject citations
filed with the Commission on July 28, 2006, pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977, as amended, (the Mine Act), 30 C.F.R. § 815(d). In its contests,
Aracoma Coal Company, Inc., (Aracoma) denies each and every allegation contained in the
contested citations. Aracoma identifies the relief sought in its contest as a Commission
declaration, through Commission review, that the subject citation and order are invalid.
(Aracoma Contest, p.2). Such a declaration can only be rendered after a hearing on the merits of
the contested citation and order.
The Secretary filed an answer to Aracoma' s contest on August 16, 2006, in which she
moved to stay these matters pending the related civil penalty case. The Secretary's answer noted
that she conferred with Contestant's counsel and he had no objection to her stay motion.
(Sec '.Y Mot., p.3).
An operator served with a citation alleging a violation ofthe Mine Act, or alleging a
violation of a mandatory safety standard that has been abated, may immediately contest the

citation under section 105(d) of the Mine Act without waiting for notification of the proposed
penalty assessment. 30 C.F.R. § 815(d). In such cases, section 105(d) provides that "the
Commission shall afford an opportunity for a hearing." An operator may have an interest in an
early hearing, such as in cases where continued abatement is expensive, or where the validity of
the citation or order impacts on an operator's continued exposure to 104(d) withdrawal sanctions.
Energy Fuels Corporation, 1 FMSHRC 299, 307-08 (May 1979). Thus, the purpose of a I 05(d)
contest proceeding is to adjudicate the validity of a citation without waiting for the Secretary's
proposed civil penalty.

28 FMSHRC 763

a

Alternatively, if the operator does not immediately contest citation·after it is issued, the
operator may wait to contest the citation in a civil penalty proceeding pursuant to section I 05(a)
of the Mine Act. 30 C.F.R. § 815(a). Waiting to contest citations until after the civil penalty is
proposed facilitates settlement negotiations and limits discovery to citations that can only be
resolved through litigation.
Commission Rule 20, 29 C.F.R. § 2700.20, implements the contest pr~visions of
section 105(d). Commission Rule 20(e)(l )(ii) provides that a notice of contest shall provide a
plain statement of the relief requested. The relief requested by Aracoma is a Commission
hearing on the merits of the citations without waiting for the Secretary's proposed civil penalties.
By filing a contest on July 28, 2006, seeking an early adjudication, only to agree
shortly thereafter to stay its contest pending the civil penalty case, it appears that Aracoma is,
in substance, waiting for a disposition on the merits after the civil penalty is proposed.
Jn other words, Aracoma has not adequately articulated the relief it seeks in its 105(d) notice
of contest, since it has elected to wait for the 105(a) civil penalty matter.
The Commission's processing of Aracoma's 105(d) contests requires the duplication of
docket files with incidental copying and storage for both the contest dockets and the ultimate
civil penalty docket. Moreover, Aracoma' s 105(d) Notice of Contest requires pro Jonna .rulings
on stay motions that are lacking in substance. I am also cognizant of the Secretary's burden of
answering multitudes of 105(d) contests, only to await duplication of her answers in the
ultimate civil penalty proceedings. Simply put, a stay order postpones the pre-civil penalty
hearing requested by Aracoma; a hearing that Araconia implicitly concedes it does not want.

In view of the above,IAracoma IS ORDERED TO SHOW CAUSE, in writing,
within 15 days from the date of this Order, why its 105(d) Notice of Contest of the subject
citations should not be dismissed because of its apparent contravention of Commission
Rule 20(e)(l)(ii), and because it is a duplicative and needless consumption of the Commission's
resources. The Secretary shall be afforded the opportunity to reply to Aracoma' s response to the
Order to Show Cause within 10 days thereafter.

·~

Jerold Feldman
Administrative Law Judge

28 FMSHRC 764

Distribution: (Certified Mail)
David J. Hardy, Esq., Spilman, Thomas & Battle, PI.LC, 300 Kanawha Blvd. East,
P.O. Box 273, Charleston, WV 25321
Francine A. Serafin, Esq., Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department of
Labor, 1100 Wilson Blvd., 22nd.Floor West, Arlington, VA 22209-2247

/mh

28 FMSHRC 765

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W. Suite 9500
Washington, DC 20001-2021

August 28, 2006
IilGHLAND MINING COMPANY,
Contestant

CONTEST PROCEEDINGS
Docket No. WEVA 2006-712-R
Citation No. 7244885; 05/25/2006

v.

Docket No. WEVA 2006-713-R
Citation No. 7244889; 05/25/2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Highland Coal Handling
Mine ID: 46-06558

ORDER TO SHOW CAUSE

These cases are before me on Notices of Contest under section 105(d) of the Federal
Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(d). The Secretary, by
counsel, has requested that the cases be continued pending the filing of the corresponding civil
penalty cases. The motion states that the Contestant does not object to it. However, before
ruling on the motion, additional information is needed.
It appears from the number of notices of contest before me that counsel for the Contestant
is routinely filing notices of contest in all cases where, as in the instant cases, the violations are
alleged to be "significant and substantial." While a literal reading of the law may permit such
filings, there does not appear to be any exigent reason for them, nor do they foster cooperation
among the parties or facilitate judicial economy.

Section 105(d) of the Act and Commission Rule20, 29 C.F.R. § 2700.20, permit an
operator to contest an order or citation without waiting for.a civil penalty to be assessed. Energy
Fuels Corp., 1 FMSHR.C 299, 308 (May 1979). fu Energy Fuels, the Commission noted that the
reason for this is that ''the operator's interest in immediately contesting the allegation of violation
and the special findings in a citation may be considerable" when "related withdrawal orders may
be issued before the Secretary has proposed a penalty." (Id.) However, the Commission went on
to say that if ''the operator ... lacked a need for an immediate hearing, we would expect him to
postpone his contest ofthe entire citation until a penalty is proposed." (Id.) (emphasis added.)
Obviously, the operator in these cases does not have an immediate need for a hearing as it
has agreed to the continuance. Nevertheless, rather than follow the advice of the Commission,
the operator's counsel has filed the notices of contest. This despite the fact that the failure to file
a notice of contest of a citation or order will not preclude the operator from challenging, in a
penalty proceeding, the fact of violation or any special findings contained in the citation or order,
28 FMSHRC 766

including whether the violation was "significant and substantial'' or the result of an
"unwarrantable failure.,, 29 C.F.R. § 2700.21; Quinland Coals, Inc., 9 FMSHRC 1614, 1621
(Sept. 1987).

. It is apparent that the practice of filing a notice of contest for every citation or order ·
containing special findings places a significant burden on the Secretary. More importantly,
processing notices of contests results in the Commission's Docket Office having to prepare
duplicate files for the same violation, with the incidental copying associated. therewith. While up
to 20 orders and citations are included. in orie civil penalty case.when it is received by the Docket
Office, each contest case involves a single order or citation. In turn, this necessitates more than
twice the storage space. it also requires the proJonna ruling on unopposed. continuance or stay
motions in cases that were never intended to be contested immedia1:ely.
Accordingly, Highland Mining Company is ORDERED TO SHOW CAUSE, within 15
days of the date of this order, why its notices of contests should not be dismissed as an abuse of
the Commission's processes. The Secretary will have 10 days from the date Highland's response
is filed to file a reply.

J~A.·

T.T~H~

Administrative Law Judge
. (202) 434-9973
Distribution: (Certified Mail) ·
I

Ramonda C. Lyons, Esq., Donna C. Kelly, Esq., Dinsmore & Shohl, ILP, 2604 Cranberry
Square, Morgantown, WV 26508
Peter B. Silvain, Jr., Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209-2247
.
.
.
/sb

28 FMSHRC 767

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W. Suite 9500
Washington, DC 20001-2021

August28,2006
SPARTAN MJNING COMPANY,
Contestant

CONTEST PROCEEDINGS
Docket No. WEVA 2006-629-R ·
Citation No. 7062296; 05/ l S/2006
Docket No. WEVA 2006-630-R
Citation No. 7062297; 0511512006
Docket No. WEVA 2006-631 -R
Citation No. 7062298; 05/ 15/2006
Docket No. WEVA 2006-632-R
Citation No. 7062299; 0511512006
Docket No. WEVA 2006-633-R
Citation No. 7062300; 05/1 5/2006
Docket No. WEVA 2006-634-R
Citation No. 6601519; 05/ 15/2006

v.
Docket No. WEVA 2006-635-R
Citation No. 6601515; 05/ 15/2006
Docket No. WEYA 2006-636-R
Citation No. 6601518; 05/15/2006
Docket No. WEVA 2006-637-R
Citation No. 6601521; 05/ 15/2006
Docket No. WEVA 2006-638-R
Citation No. 6601523; 05/ 15/2006
Docket No. WEVA 2006-639-R
Citation No. 6601524; 0511512006
Docket No. WEVA 2006-640-R
Citation No. 6601526; 05/ 15/2006
Docket No. WEVA 2006-681-R
Citation No. 6601530; 05/ 16/2006

28 FMSHRC 76S

Docket No. WEVA 2006-682-R
Citation No. 6601532; 05/ 16/2006

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

Docket No. WEVA 2006-683-R
Citation No. 6601533; 05/16/2006
Docket No. WEVA 2006-684-R
Citation No. 6601534; 05/16/2006
Docket No. WEVA 2006-685-R
Citation No. 6601535; 05/ 16/2006
Docket No. WEVA 2006-686-R
Citation No. 7062302; 05/ 16/2006
Docket No. WEVA 2006-687-R
Citation No. 7458067; 05/16/2006
Docket No. WEVA 2006-688-R
Citation No. 7458068; 05/16/2006
Docket No. WEVA 2006-689-R
Citation No. 7458069; 05/ 16/2006
Docket No. WEVA 2006-690-R
Citation No. 7458070; 05/ 16/2006
Docket No. WEVA 2006-691-R
Citation No. 7458071; 05/16/2006
Docket No. WEVA 2006-692-R
Order No. 7458072; 05/16/2006
Docket No. WEVA 2006-693-R
Citation No. 7458073; 05/ 16/2006
Docket No. WEVA 2006-694-R
Citation No. 7458074; 05/ 16/2006
Docket No. WEVA 2006-695-R
Citation No. 7458075; 05/16/2006
Docket No. WEVA 2006-696-R
Citation No. 7460800; 05/ 16/2006
28 FMSHRC 769

Laurel Creek/Spirit Mine
Mine ID 46-08387

ORDER TO SHOW CAUSE
These cases are before me on 28 Notices of Contest under section 105(d) of the Federal
Mine Safety and Health Act of 197.7, as amended, _3 0 U.S.C. § 815(d). The Secretary, by
counsel, has requested that the cases be continued pending the filing of the corresponding civil
penalty cases. The motion states that the Contestant does not object to it. However, before
ruling on the motion, additional infonnation is needed.
It appears from the number of notices of contest before me that counsel for the COntestant
is routinely filing notices of contest in all cases where, as in the instant cases, the violations are
alleged to be "significant and substantial." While a literal reading of the law may pennit such
filings, there does not appear to be any exigent reason for them, nor do they foster cooperation ·
among the parties or facilitate judicial economy.
Section 105(d) of the Act and Commission Rule 20, 29 C.F.R. § 2700.20, pennit an
operator to contest an order or citation without waiting for a civil penalty to be assessed. Energy
Fuels Corp., 1 FMSHRC 299, 308 (May 1979). In Energy Fuels, the Commission noted that the
reason for this is that ''the operator's interest in immediately contesting the allegation of violation
and the special findings in a citation may be considerable" when ''related withdrawal orders may
be issued before the Secretary has proposed a penalty." (Id.) However, the Commission went on
to say that if ''the operator .. . lacked a need for an immediate hearing, we would expect him to
postpone his contest ofthe entire citation until a penalty is proposed." (Id.) (emphasis added.)
Obviously, the operator in these cases does not have an immediate need for a hearing as it
has agreed to the continuance. Nevertheless, rather than follow the advice of the Commission,
the operator's counsel has filed the notices of contest. This despite the fact that the failure to file
a notice of contest of a citation or order will not preclude the operator from challenging, in a
penalty proceeding, the fact of violation or any special findings contained in the citation or order,
including whether the violation was "significant and substantial" or the result of an
"unwarrantable failure." 29 C.F.R. § 2700.21; Quin/and Coals, Inc., 9 FMSHRC 1614, 1621
(Sept. 1987).
It is apparent that the practice of filing a notice of contest for every citation or order
containing special findings places a significant burden on the Secretary. More importantly,
processing notices of contests results in the Commission's Docket Office having to prepare
duplicate files for the same violation, with the incidental copying associated therewith. While up
to 20 orders and ci~tions are included in one civil penalty case when it is received by the Docket
Office, each contest case involves a single order or citation. In tum, this necessitates more than
twice the storage space. It also requires the pro Jonna ruling on llllopposed continuance or stay
motions in cases that were never intended to be contested immediately.

28 FMSHRC 770.

Accordingly, Spartan Mining Company is ORDERED TO SHOW CAUSE, within 15
days of the date of this order, why its notic~s of contests should not be dismissed as an abuse of
the Commission's processes. The Secretary will have 10 days from the date Highland' s response
is filed to file a reply.

c!.~~
T. Toddlfo~
~ative Law Judge
(202) 434-9973
Distribution: (Certified Mail)
RobertH. Beatty, Jr., Esq., Carol Aim Marunich, Esq., Dinsmore.& Shohl, LLP, 2604 Cranbeny
Square, Morgantown, WV 26508
Peter B. Silvain, Jr., Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
2200 Floor West, Arlington, VA 22209-2247
/sb

28 FMSHRC 771

28 FMSHRC 772
G:J()· U.S. GOV£RNM£NT PRINTING OFflCI!: 2006-320-961/43954