NOVEMBER AND DECEMBER 2008
COMMISSION ORDERS
11-06-2008
11-06-2008
11-07-2008
11-07-2008
11-07-2008
11-10-2008
11-10-2008
11-14-2008
11-14-2008
11-24-2008
11-24-2008
11-25-2008
11-25-2008
12-08-2008
12-10-2008
12-10-2008
12-10-2008
12-15-2008
12-17-2008
12-17-2008
12-17-2008
12-22-2008
12-22-2008
12-22-2008

Mass Transport, Inc.
Five Star Mining, Inc.
Pitlick & Wick, Inc.
Northern Lakes Concrete, Inc.
Danbi, Inc.
Frontier-Kemper Constructors, Inc.
Kevin Phillips emp. By Reostone, LLC.
Krystal Gravel
Lafarge Aggregates Southeast, Inc.
Ember Contracting Corporation
Solar Coal Company
Genwal Resources, Inc.
Pine Bluff Sand & Gravel Co.
CCC Group, Inc.
Solar Coal Company
Solar Coal Company
S & M Coal Company
Lang Exploratory Drilling
Pinnacle Mining Company, LLC.
Pinnacle Mining Company, LLC.
Pinnacle Mining Company, LLC.
Palmer Coking Coal Company
Stowers Trucking, LLC.
Ruscat Enterprises, Inc.

WEVA 2008-425
LAKE 2008-447
LAKE 2008-345-M
LAKE 2008-349-M
WEVA 2008-1478
LAKE 2008-569
KENT 2008-1294
SE 2008-843-M
SE 2008-805-M
KENT 2008-1346
KENT 2008-1179
WEST 2008-861
CENT 2008-591-M
SE 2009-61-M
KENT 2008-1214
KENT 2008-1207
PENN 2008-487
WEST 2008-1314-M
WEVA 2008-273
WEV A 2008-272
WEVA 2008-927
WEST 2008-934-M
WEV A 2008-1082
WEVA 2008-1083

Pg. 997
Pg. 1002
Pg. 1006
Pg. 1010
Pg. 1013
Pg. 1017
Pg. 1020
Pg. 1023
Pg. 1026
Pg. 1029
Pg. 1033
Pg. 1036
Pg. 1039
Pg. 1043
Pg. 1046
Pg. 1049
Pg. 1053
Pg. 1057
Pg. 1061
Pg. 1066
Pg. 1071
Pg. 1076
Pg. 1080
Pg. 1083

PENN 2004-158
KENT 2008-104
KENT 2008-267
SE 2007-350-M

Pg. 1087
Pg. 1097
Pg. 1105
Pg. 1111

ADMINISTRATIVE LAW JUDGE DECISIONS
11-03-2008
11-06-2008
11-17-2008
11-26-2008
11-26-2008
12-19-2008
12-23-2008

PBS Coals & Musser Engineering, Inc.
Highland Mining Company, LLC.
Process Energy
Sangravl Company, Inc.
Sec. Labor o/b/o Peter Phillips v.
A & S Construction Company
Rockhouse Energy Mining Company
Aracoma Coal Company

WEST 2008-1057-DM Pg. 1119
KENT 2008-1483-R
Pg. 1125
WEVA 2006-654
Pg. 1160

ADMINISTRATIVE LAW JUDGE ORDERS
11-24-2008
12-04-2008
12-10-2008
12-18-2008

Big Ridge Incorporated
Cumberland Coal Resources, LP
Agapito Associates, Inc.
Wolf Run Mining

LAKE 2008-68
PENN 2008-318
WEST 2008-1451-R
WEYA 2008-804

i

Pg. 1172
Pg. 1180
Pg. 1187
Pg. 1198

.

. .'

(

NOVEMBER AND DECEMBER 2008

Review was granted in the following cases during the months of November and December 2008:
Secretary of Labor, MSHA v. Musser Engineering, fuc., and PBS Coals, Inc., Docket Nos. PENN
2004-152 and PENN 2004-158. (Chief Judge Lesnick, November 4, 2008)
Secretary of Labor on behalf of Peter J. Phillips v. A & S Construction Co., Docket No.
WEST 2008-1057-DM. (Judge Barbour's dissolution of an Order of Temporary Reinstatement,
November 26, 2008)

Review was denied in the following case during the months of November and December 2008:
Jessee Satterfield v. Consol Pennsylvania Coal Company, Docket No. PENN 2007-283-D. (Judge
Melick, October 17, 2007)

11

COMMISSION DEQSIONS AND ORDERS

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

November 6, 2008

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

v.

Docket No. WEVA 2008-425
A:c. No. 46-05649-118643C479

MASS TRANSPORT, INC.

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

BY THE COMMISSION:

This' matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On July 2, 2008, the Commission received from Mass
Transport Inc. (''Mass Transport") a motion by counsel 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 prop osed
penalt)r 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 May 23, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000118643 to Mass Transport, a contractor, for
various violations that allegedly occurred at the Delbarton Preparation Plant ("Delbarton''). On
January 18, 2008, the operator' filed a motion to reopen the assessment, stating that it had failed
to timely contest the proposed assessment with respect to Citation No. 7244548 and Order Nos.
7244549, 7244550, and 7244552 because the proposed assessment had been sent to an incorrect
address.
Although the Secretary did not oppose the request to reopen, she noted that the proposed
penalty assessment and the delinquency notice were ~ailed to the address of record at the time of
30 FMSHRC 997

assessment. The Secretary stated thatMass Transport should check the mailing address it
provided to MSHA to be sure that it is up-to-date.
On June 18, 2008, the Commission issued an order denying the operator's motion. The
Commission explained that the operator's counsels.e t forth conflicting and confused information
regarding the identity of the movant in both the caption and body of the motion, and that the
operator's counsel failed to establish that the movant, as identified in the motion to reopen, had
standing to make the request.
On July 2, 2008, the Commission received from Mass Transport a second request to
reopen. Counsel, who states that she represents both Mass Transport and Delbarton,
acknowledges that she misidentified the movant as Delbarton instead of Mass Transport in the
style of the .motion to reopen. 1 Counsel explains that she mistakenly believed that the citation,
orders and Proposed Assessment had been issued to Delbarton because the mine I.D on the
citation and orders and the Proposed Assessment identifies Delbarton as the mine.

In its second request, Mass Transport reiterates that it failed to timely contest the
proposed assessment because the proposed assessment had been mailed to an incorrect address.
In response to the Secretary's prior submission that.MSHA had mailed the proposed assessment
and delinquency notice to Mass Transport's address of record at the time of the assessment, Mass
Transport states that the proposed assessment had been mailed to an address that was not the
mailing address or physical address of either Delbarton or Mass Transport. Mass Transport
asserts th;it, in fact, MSHA bas Mass Transport's correct.address because MSHA previously has
mailed correspondence to Mass Transport at the correct address and lists the com~ct address in
MSHA's data retrieval system on its website. 2
We have held that in appropriate circumstances, we possess jurisdiction to reopeµ.
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-8.9 (May 1993) ("JWR."). In evaluating requests to
reopen final section lOS{a) orders, the Commission has found guidance in Rule 60(b) ofthe
Fed~ral Rules of Civil Procedure under which, for.example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed

Although counsel ackn~yvleciges that she misidentified the movant in the style of the
motion. to reopen, as the Commission previously indicated, such misidentification existed
throughout the body of the motion as well.
1

2

In the second request to reopen, counsel for Mass Transport identifies the address that

MSHA had correctly mailed correspondence to as P.O. Box 1117, Holden, WV 25625. Mot. at
2-3. Later in the same motion, counsel i~explicably identifies the correct.mailing addre~s ~a
different post-office box, that is, P.O. Box l 098. Id. at 3.
30 FMSHRC 998

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 permjtted. See Coal Prep. Servs., Inc., 17 FMSHRC .1529,.1530 (Sept. 1995).
It is an operator's responsibility to file with MSHA the address of a mine and any ~hanges
of address. 30 C.F.R. §§ 41.10, 41.12 .. Operators may request service by delivery to another
appropriate address provided by the operator. 30 C.F.R. § 41.30.
It is unclear from the record whether MSHA mailed the proposed assessment to Mass
Transport' s official address of record at the time of assessment and whether Mass Transport
maintained its correct address with MSHA. IfMSHA sent the proposed assessment to Mass
Transport's official address of record, grounds may exist for denying Mass Transport's request
for relief Cf: Harvey Trucking, 21 FMSHRC 567, 568-69 & n.l (June 1999) (stating that
operator is required to notify MSHA of changes of address). If, however, MSHA mailed the
proposed assessment to an incorrect address, the proposed assessment may not have become a
final Commission order and Mass Transport's request may be moot.

30 FMSHRC 999

Having reviewed Mass Transport's motion, we remand this matter to the Chief
Administrative Law Judge for a determination of whether Mass Transport timely contested the
penalty proposal. We ask the Chief Judge, in considering the matter, to resolve the dispute over
whether MSHA sent the proposed assessment to Mass Transport's official address of record at
the time of assessment. The Judge shall order further appropriate proceedings based upon that
determination in accordance with principles described herein, the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700.

~.

~

.~ · ~

M1chaelF~

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 1000

Distribution:
Ramonda C. Lyons, Esq.
Dinsmore & Shohl, LLP
P. 0. Box 11887
900 Lee Street, Suite 600
Charleston, WV 25339
Myra James, Chief
Office of Civil Penalty Compliance .
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
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

30 FMSHRC 1001

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

November 6, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No: LAKE 2008-447
AC. No. 12-02249-129078

v.

FNE STAR MINING, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U .S.C.
§ 801 et seq. (2000) ("Mine Act"). On May 30, 2008~ the Com.mission received from Five Star·
Mining, Inc. ("Five Star") a motion made by counsel to reopen a penalty a5sessment 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 October 15, 2007, the Department of Labor's Mine Safety and Health Administration
(''MSHA") issued Proposed Assessment No. 000129078 to Five Star, proposing penalties for a
citation and two orders that had been issued to the company in Februafy and March of2007.
Five Star states that its counsel received the proposed penalty assessment from it on
November 14, 2007, and that an e-mail in counsel's file.indicates that he initially believed that
Five Star had already contested Citation No. 6668861 and that the proposed assessment had not
been issued until November 13, 2007. Five Star further states that its counsel thereafter filed a
notice of contest regarding the proposed assessment for that citation on November 27, 2007,
which was untimely.

30 FMSHRC 1002

The Secretary initially responded to the motion by noting that it merely states that a
mistake was made, without explaining why the mistake was made or why it should be excused.
The Secretary also pointed out that the operator had failed to address why it did not file its
motion until four and one-half months after MSHA had notified it in January 2008 that it was
delinquent in paying the assessment for the citation and two orders. The Secretary requested that
we not rule on the motion until Five Star had the opportunity to supply the missing information.
Five Star thereafter filed a reply in which it explains that the late filing was due to counsel
misreading the assessment he had received from the operator and consequently erroneously
calculating the deadline for contest. Further, Five Star explains that the delinquency letter from
MSHA went to its accounting department, and not to either the mine safety manager or counsel,
who each believed that the citation in question had been contested. According to Five Star, it
was not until late April 2008, when the Treasury Department contacted its accounting department
regarding the unpaid assessment, that counsel was alerted to the fact that the contest he filed
might not have been timely. The Secretary thereafter filed a letter stating that, in light of Five
Star's reply, she does not oppose the motion to reopen.
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).

30 FMSHRC 1003

Having reviewed Five Star's motion and reply and the.Secretary's responses, in the
interests of justice, we remand this matter to the Chief Administrative Law Judge for a
determination of whether good cause exists for Five Star's failure to timely contest the penalty
proposal and whether relief from the final order should be granted. 1 If it is determined that such.
relief is appropriate, this case shall proceed pursuant to the Mine Act and the Connnission's
Procedural Rules, .29 CF.R. Part 2700.

. ·,
r'.

I

Robert F. Cohen, Jr., Commissioner

1

Five Star appears to be suggesting that the January 2008 MSHA notice to its accounting
department was insufficient to put the company on notice that MSHA was not treating its contest
as effective. However, the receipt of the MSHA delinquency notice by the accounting
department should have triggered a response by the company, but that appears not to be the case.
Moreover, that delinquency notice was for all three penalties, including the two penalties that
Five Star does not seek to contest. Five Star does not explain in either its original motion or its
reply why it did not pay any of the penalties until Treasury Department action may have forced
the issue.

30.FMSHRC 1004

Distribution:
Scott D. Matthews, Esq.
Ice Miller, LLP
One American Square, Suite 3100
Indianapolis, IN 46282-0200

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
U.S. Department of Labor
1100 Wilson Blvd., 25th Fl.
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D .C. 20001-2021

30 FMSHRC 1005 ·

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

November 7, 2008
Docket No. LAKE 2008-345-M
A.C. No. 47-0204~-140232

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

Docket No. LAKE 2008-346-M
A.C. No. 47-0~940- 140235

v.
Docket No. LAKE 2008-347-M .
A.C. No. 47-03245- 140241
Docket No. LAKE 2008-348-M
A.C. No. 47-03367-140245

PITLICK & WICK, INC.

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

§ 801 et seq. (2000) ("Mine Act"). On April 14, 2008, the Commission received from Pitlick &
Wick, Inc. ("Pitlick") motions from counsel seeking to reopen four penalty assessments that had
become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby consolidate
docket numbers LAKE 2008-345-M, LAKE 2008-346-M, LAKE 2008-347-M and
LAKE 2008-348-M, all captioned Pitlick & Wick, Inc. , and involving similar procedural issues.
29 C.F.R. § 2700.12.
30 FMSHRC 1006

On February 13, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued the four proposed penalty assessments at issue to Pitlick. The affidavit ·or
Pitlick' s Safety Director states that Pitlick failed to contest the penalty assessments within the
required 30 days "due to mistake and inadvertent administrative error due to clerical error which
failed to bring the assessment to [his] attention in a timely fashion." The Secretary does not
oppose the reopening of the assessments.
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) ~rders, 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 ~rocedure"); .!WR, 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).

30 FMSHRC 1007

. . ; .Having reviewed Pitlick's req~est and· the .Secretary's response, we detennine that Pitlick
has failed to provide a sufficiently detailed explanation for its failure to timely contest the .
proposed penalty assessments. Pitlick~s conclusory statement that a clerical error resulted in its
failing to timely contest the assessments does not provide the Commission with an adequate basis
to justify reopening. Accordingly, we deny without prejudice Pitlick's request. See Eastern
Assoc. Coal, LLC, 30 FMSHRC 392 (May 2008); James Hamilton Construc#on, 29 FMSHRC
569, 570 (July 2007). 2

..

Robert F. Cohe~ Jr., Commissioner

2

In the event Pitlick chooses to refile its request to reopen, it should disclose with
specificity its grounds for relief.
30 FMSHRC 1008

Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
Myra James, Chief
Office of Civil Penalty Compliance
MSIIA
U.S. Department of Labor
1100 Wilson Blvd., 25 1h Fl.
Arlington, VA 22209-3939
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
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

30 FMSHRC 1009

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

November 7, 2008
Docket No. LAKE 2008-349-M
A.C. No. 47-03165-140238

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

Docket No. LAKE 2008-350-M
A.C. No. 47-03191-140239

v.

Docket No. LAKE 2008-351-M
A.C. No. 47-03330-140242

NORTHERN LAKES CONCRETE, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Hecµtli Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act"). 1 On April 14, 2008, the Commission received from Northern
Lakes Concrete, Inc. (''Northern Lakes") motions by counsel seeking-to 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 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 Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On February 13, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued three proposed penalty assessments to Northern Lakes for Citations Nos.
6188577, 6188578, 6189190, 6189191, and 6189192. Northern Lakes asserts that it had
previously contested all of the underlying citations. The affidavit of Northern Lakes' Safety
Director states that it failed to contest the penalty assessments within the required 30 days "due to

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers LAKE 2008-349-M, LAKE 2008-350-M, and LAKE 2008-351-M,
all captioned Northern Lakes Concrete, Inc. and involving similar procedural issues. 29 C.F.R.
§ 2700.12.
30 FMSHRC 1010

mistake and inadvertent administrative error due to a clerical error which failed to bring the
assessment to [his] attention in a timely fashion." The Secretary states that she does not oppose
the reopening of the assessments.
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.
§ 2700.1 (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 i~ 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 ·o n the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Northern Lake's request, we determine.that Northern Lakes has·failed to
provide a sufficiently detailed explanation for its failure to timely contest the proposed penalty
assessments. Northern Lakes' conclusory statement that a clerical error resulted in its failing to
timely contest the assessments does not provide the Commission with an adequate basis to justify
reopening. Accordingly, we deny without prejudice Northern Lakes's request. See Eastern
Assoc. Coal,;LLC, 30 FMSHRC 392 (May 2008); James Hamilton Construction, 29 FMSHRC
569, 570 (July 2007).2

Michael

Robert F. Cohen, Jr., Commissioner

2

In the event Northern Lakes chooses to refile its request to reopen, it should disclose

with specificity its grounds for relief.
30 FMSHRC 1011

Distribution:
Adele L. Abrams, Esq.,
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D,
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, V,A 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Fl.
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

•.:

30 FMSHRC 1012

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

November 7, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No~ :WEVA 2008-1478
A.C. No. 46-08582-134591 H946

v.
DANBI,INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On July 15, 2008, the Commission received from Danbi, Inc.
("Danbi") a motion by counsel seeking to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 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 4, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment of $34,100 that arose from two unwarrantable
failure orders issued to Danbi. In an affidavit submitted by Danbi's president, the operator stated
that the assessment was never received because it was mailed to an address with an incorrect zip
code. Danbi states that the zip code was incorrectly typed when Danbi submitted its legal
identification form to MSHA in 2004, and that Danbi had made several attempts to correct the
address, and did not realize that these attempts had been unsuccessful until after the penalty
assessments had become final. Danbi further states that it had always intended to contest the
orders and had filed notices of contest of the orders in 2007. In response, the Secretary states that
she does not oppose the reopening of the penalty assessment.

30FMSHRC 1013

.' .

;

/. .

· ..

~

.

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessment forms that have become final Commission orders under section l05(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 C;lS 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, i~ 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).

.
:.

..

:

..

. ..~·.

: ·..

. . .

.

30FMSHRC 1014

.

Having reviewed Danbi's request and the Secretary's response, in the interests ofjustice,
we remand this matter to the Chief Administrative Law Judge for a determination of whether
good cause exists for Danbi's failure to timely contest the penalty proposals 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.

Mich

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 1015

Distribution:
Mark E. Heath, Esq.
Spilman, Thomas & Battle, PLLC
300 Kanawha Blvd., East
P.O. Box 273
Charleston, WV 25321
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2·2 20
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th FL
Arlington, VA 2.2209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 1016

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

November 10, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA}
Docket No. LAKE 2008-569
A.C. No. 12-02215-148226 AOl

v.
:

·'

FRONTIER-K;EMPER
CONSTRUCTORS INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
.
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On July 30, 2008, the Commission received from FrontierKemper Constructors Inc. ("Frontier-Kemper") a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 3Q 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 Seci-etary°ofLabor 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 ~(the Coi;nmission. 30 U.S.C. § 815(a).
.
... . .
·. .
'•.

On FebruarY'29, 2008; the Department of Labor's Mine Safety and Health Administration
(MSHA) issued cit~ti.oris to .Frontier-Kel)lper that it subsequently contested. The contest
proceedings were stayed pending issuance of proposed penalties. On April 23, 2008, MSHA
issued a proposed assessment for the citations that Frontier-Kemper had contested. According to
Frontier-Kemper, due to a "clerical error and misunderstanding" by one of its employees, who
thought it was unnecessary to .contest.the penalties since the citations had already been contested,
the proposed asses~ment form was never returned to MSHA. On July 21, 2008, Frontier-Kemper
received a delin.quency notice regarding the penalties of the citations that it had contested. The
Secretary states that she does not oppose Frontier-Kemper's request to reopen the penalty
assessment.
30 FMSHRC 1017

We have held that in appropriate '<ircumstances, 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 f~und guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for exampie, 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
_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).

for

Having.reviewed Frontier-Kemper's motion and the Secretary's response, in the interests
of justice, we remand this matter to the Chief Administrative Law Judge for a detemiination of
whether good cause exists for Frontier-Kemper'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.
\

Mic

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 1018

Distribution:

R. Brian Hendrix, Esq.
Patton Boggs, LLP
2550 M Street NW
Washington, DC 20037
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209~2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30FMSHRC 1019

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

November 10. 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2008-1294
A.C. No. 15-00008-120878 A

v.
KEVIN PHILLIPS, EMPLOYED BY
REOSTONE, LLC.

BEFORE: Duffy, ~airman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act"). On July 14, 2008, the Commission received from Kevin
Phillips ("Phillips") a letter in which he seeks to reopen a penalty assessment under section
11 O(c) of the Mine Act that had become final order of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a).
Under the Commission's Procedural Rules, an individual charged under section 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. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.
On June 22, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment of $4150 as a result of six citations issued to
Phillips. It is unclear when Phillips actually received the assessment. In a letter dated
January 30, 2008, to MSHA's Civil Penalty Compliance Office, Phillips stated that he wanted to
contest the proposed penalties and apparently attached the assessment form. rn response, the
Secretary states that she does not object to the reopening of the penalty assessment.

30 FMSHRC 1020

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessment forms 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 Procedw-e 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 Procedw-e"); 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 reope!led and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Phillips' request and the Secretary's response, in the interests ofjustice,
we remand this matter to the Chief Administrative Law Judge for a determination of whether
good cause exists for Phillips' 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.

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 1021

Distribution:
Kevin Phillips
18003 Arlington Meadows Ct.
Fisherville, KY 40023
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of the Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Christian P. Barber, Esq.
Office of the Solicitor
U.S. Department of Labor
618 Church Street, Suite 230
Nashville, TN 37219-2456
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W.; Suite 9SOO .
Washington, D.C. 20.001-2021

30 FMSHRC 1022

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

November 14, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2008-843-M
A.C. No . 22-00585-1145711

V.

KRYSTAL GRAVEL

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMI$SION:
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, 2008, the Commission received from Krystal
Gravel ("Krystal") a letter seeking to reopen an assessment that may have become a final order of
the Commission pursuant
to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
. .
.
Under section 105(a) of the Mille 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 3, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued to Krystal a proposed assessment as a result of 18 citations that were issued in
February 2008. On April 22, Krystal mailed a letter to MSHA's Civil Penalty Compliance Office
in which Krystal stated that it di.d not contest the violations but that it needed "help on the
assessment amounts" and that penalties were ~'calcufa~ed wrong and ~e too high."1 In response,

1

MSHA's proposed assessment form instructs an operator "to either pay the penalty, or
notify MSHA that you wish to contest the proposed assessment." Later in the form, MSHA
states, "If you wish to contest and have a formal hearing on just some of the violations listed in
the Proposed Assessment, check the specific violation numbers in the first column and mail a
30 FMSHRC 1023

the Secretary states that she does notoppose reopening the proposed assessment .but.that
Krystal's letter was not adequate to contest a proposed assessment.
Having reviewed Krystal's request anci the Secretary's response, we conclude that the
proposed assessment at issue has not become a final order of the Commission because Krystal
effectively timely contested it. We deny Krystal's motion as moot and remand this matter to the
Chief Admillistrative Law Judge for further proceedings as appropriate, pursuant to the Mine Act
and the Commission's Procedural Rules, 29 C.F.R. Part 2700.2 See Lehigh Cement Co., 28
FMSHRC 440, 441(July2006).

.

·.

·.

Qlr:>t .,(
... Robert F. Cohen, Jr., Commissioner

copy[.]" (Emphasis·added). Because KrystaI wished t~ contest all the citations listed on the .
proposed assessment, its letter to MSHA sh6uld have been suffiCient notification in light of
MSHA's instructions.
2

Under Commission Procedural Rule 28(a), 29 C.F.R. § 2700.28(a), the Secretary has 45
days following the contest of a proposed penalty assessment to file.a petition ofassessment with
the Commission. Given our disposition in this proceeding, we·deem that the time period for
filing a petition ofassess~ent should run from the date of issuance of this order.
30 FMSHRC 1024 ·

Distribution:
John C. Sojourner, Jr.
Krystal Gravel, Inc.
113 BoBo Drive
Crystal Springs, MS 39059
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

'/

30 FMSHRC 1025

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

November 14, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2008-805-M
A.C. No. 09-00024-143360

V.

LAFARGE AGGREGATES
SOUTHEAST, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30.U.S.C . .
§ 801 et seq. (2000) ("Mine Act"). On June 30, 2008, the Commission received from Lafarge
Aggregates Southeast, Inc. ("Lafarge") a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
The penalty assessment at issue, No. 000143360, proposed penalties for seven citations
issued to the operator in February 2008 by the Department of Labor's Mine Safety and Health
Administration ("MSHA"). Prior to receiving the assessment, Lafarge's Safety Director had
contacted the local MSHA office to urge the agency to reduce its findings with respect to one of
the citations. On March 11, 2008, MSHA issued the proposed assessment. Lafarge states that
shortly thereafter the Safety Director contacted Lafarge's counsel, informing him of the attempt
to have the findings reduced and instructing him to contest the proposed penalties with respect to
all of the citations. However, according to Lafarge, a different assessment, No. 000143326, was
attached to the e-mail to counsel. Lafarge states that counsel did not recognize that the wrong
assessment had been forwarded, and that consequently no contest to No. 000143360 was ever
30 FMSHRC I 026

filed. The Secretary states that she does not oppose Lafarge's request to reopen the proposed
assessment. However, she urges the operator to talce all steps necessary to ensure that, in the
future, any penalty assessments are contested in a timely manner.
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 mistalce. 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.,lnc., 17FMSHRC 1529, 1530(Sept.1995).
Having reviewed Lafarge's motion and the Secretary's response, in the interests of
justice, we remand this matter to the Chief Administrative Law Judge for a determination of
whether good cause exists for Lafarge's failure to timely contest the penalty proposal and
whether relief from the final order should be granted. If it is detennined 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.

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 1027

Distribution:

.

William K. Doran, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
2400 N Street NW, 5•h Floor
Washington, DC . 20037
.

.

W. Christian Schumann, Esq.
Office of the SoliCitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC I 028

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

November 24, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. KENT 2008-1346
A.C. No. 15'-18594-150594
Docket No. KENT 2008-1347 ;
·: A.C. No. 15-18594-147288

v.
EMBER CONTRACTING
CORPORATION

Docket No. KENT 2008-1348
. A.C. No. 15-18594-139998

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) .("Mine Act"). 1 On July 25, 2008, the Commission received from Ember
Contracti.n g CorP.oration ("Ember") a letter from its president in which he requests to reopen
three penalty as~essments that had become final orders o(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 February, April, and May 2008, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued three proposed assessments with penalties totaling $157,861.
According to Ember's president, Ember did not receive the proposed assessments and first
1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby .
consolidate Docket Nos. KENT 2008-1346, KENT 2008-1347, and KENT 2008-1348, all
captioned Ember.Contracting Corp. and all involving similar procedural issues. 29 C.F .R.
§ 2700.12.
.
.
.
30 FMSHRC 1029

learned of these penalties on July 16, 2008, when they appeared ·a s "outstanding" on a proposed
assessment that Ember received.

In response, the Secretary states that the proposed assessments at issue were sent to the
address of record but were returned because they could not be delivered at that address. The
Secretary further states that she does not oppose Ember's request to reopen in this proceeding. 2
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessment forms that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a :final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

It is an operator's responsibility to file with MSHA the address of a mine and any changes
of address. 30 C.F.R. §§ 41.10, 41.12. Operators may request service by delivery to another
appropriate address provided by the operator. 30 C.F.R. § 41.30.
It is unclear from the record whether MSHA mailed the proposed assessment to Ember's
official address of record at the time of assessment and whether Ember maintained its correct
address with MSHA. If MSHA sent the proposed assessment to Ember's official address of
record, grounds may exist for denying Ember's request for relief. Cf Harvey Trucking, 21
FMSHRC 567, 568-69 & n.1 (June ·1999) {stating that operator is required to notify MSHA of
changes of address). If, however, MSHA mailed the proposed assessment to an incorrect ·
address, the proposed assessment may not have become a final Commission order and Ember's
request may be moot.

The Secretary urges Ember to take all steps necessary to ~nsure that future penalty
assessments are "received, processed and contested in a timely manner." The Secretary_states
that she may oppose future motions to reopen penalty assessments if they are not timely ·
contested.
2

30-F MSHRC 1030

Having reviewed Ember's request and the Secretary's response, we remand this matter to
the Chief Administrative Law Judge for a determination of whether Ember timely contested the
penalty proposal. We ask the Chief Judge, in considering the matter, to resolve the dispute over
whether MSHA sent the proposed assessment to Ember's official address ofrecord at the time of
assessment. The Judge shall order further appropriate proceedings based upon that determinati_o n
in accordance with principles described herein, the Mine Act and the Commission's Procedural
Rules, 29 C.F.R Part 2700.

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 1031

Distribution:
.

.

'

.

.

Randy Gilkerson, President
Ember Contr~cting Corp.
P.O. Box 1500
Pikeville, KY 41502
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220 ·Arlington, VA · 22209-2296.: '. :.
Myra James, Chief
Office of Civil Penalty_Compliance
MSHA
U.S. Depart:rnent :o f Labor
· 1100 Wilson ~lvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health ReView Commission
601 New Jersey Avenue; N.W., ~ulte 9500
Washington, D.C. 20001-2021

30 FMSHRC 1032

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

November 24, 2008

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2008-1179
A.C. No. 15-18747-152513

v.
SOLAR COAL COMPANY

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Acf'). On June 24, 2008, the Commission received from Solar Coal
Company ("Solar") a letter requesting reopening of eight penalty assessments that had become
final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 1
That request will the subject of a future Commission order in Docket Nos. KENT 2008-1207
through 2008-1214.
Attached to Solar's request was a copy of two pages of a ninth proposed penalty
assessment, No. 000152513, issued by the Department of Labor's Mine Safety and Health
Administration ("MSHA") on June 5, 2008. On those pages, Solar had indicated that it was
contesting all of the penalties proposed. The assessment was construed as also the subject of
Solar's request to reopen, and the above docket number was assigned to it.

1

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
30 FMSHRC 1033

The Secretary subsequently info~ed the.Com,mission_that Assessment No. 000152513 is
being treated by MSHA as a validly contested assessment. Consequently, there is no final
Commission order with respect to this assessment to r~open, and this docket is dismissed.

·.

Robert F. Cohen, Jr., Commissioner

30 FMSHRC I 034

Distribution:
Scarlett Biliter, Owner
Solar Coal Co.
76 George Rd.
Betsy Layne, KY 41605
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
U.S. Department of Labor, MSHA
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC I 035

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

November 25, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2008-861
A.C.No.42-01715-127742

v.
GENWAL RESOURCES INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act"). On April 18, 2008, the Commission received from Genwal
Resources, Inc. ("Genwal") a motion seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

On September 21 , 2007, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Proposed Assessment No. 000127742 to Genwal, proposing a
penalty for Citation No. 7286499 that previously had been issued to the company's Crandall
Canyon Mine. In its motion, Genwal asserts that because of two major accidents that occurred at
the mine in August 2007, which resulted in nine fatalities, mining operations ceased entirely. In
an accompanying declaration, James Poulson, the safety manager of Genwal's parent company,
states that the mine's safety director was reassigned to another mine within a week or two after
the August accidents and that, as a result, the proposed penalty assessment that was issued in
September was misplaced until April 2, 2008, when Mr. Poulson discovered it among some
unrelated personnel files. The Secretary does not oppose the motion to reopen the penalty

30 FMSHRC I 036

assessment but indicates that a notice of delinquency was mailed to Genwal on December 11.,
2007.
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 m~rits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Genwal's motion and the Secretary's response, in the interests of
justice, we remand this matter to the Chief Administrative Law Judge for a determination of
whether good cause exists for Genwal' s failure to timely contest the penalty proposal and
whether relief from the final order should be granted. In making that determination, the judge
should consider that the proposed assessment was not sent until September 21, 2007, three weeks
after rescue attempts had ceased. We also direct the judge to obtain from Genwal evidence
regarding ww it waited four months to respond to the delinquency notice dated December 13,
2007. 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.

~DUiii,cl:runnan

Michael F.

Robert F. Cohen, Jr., Commissioner

30 FMSHRC I 037

Distribution:
Thomas C. Means, Esq.
Crowell & Moring LLP
1001 Pennsylvania A venue, NW
Washington, DC 20004-2595
W. Christian Schwnann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
.;

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

30 FMSHRC 1038

~

...

FEDERAL MINE SAFETY AND HEAL Tf:i REVIEW COMMISSION .
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

November 25, 2008

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2008-591-M
A.C. No. 03-01723-135548

v.

PINE BLUFF SAND &
GRAVEL COMPANY
BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S:C.
§ 801 et seq. (2000) ("Mine Act"). On June 13, 2008, the Commission received from Pine Bluff
Sand & Gravel Company ("Pine Bluff') a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
·

who

Under section 105(a) of the Mine Act, an operator
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 9, 2008, the Department of Labor's Mine Safety and Health Ad.ministration
("MSHA") issued Proposed Assessment No. 000135548 to Pine Bluff, proposing penalties for
three citations that had been issued to the company in September 2007 for violations at its River
Mountain Quarry location ("River Mountain"). Pine Bluff states that prior to that, its River
Mountain representative had participated with an MSHA representative in a conference that Pine
Bluff had requested regarding one of those citations, No. 7851308. Pine Bluff further states that
consequently it did not believe it needed to contest the assessment as to that citation until it
received the results of the conference, which its original motion states it had yet to receive. Pine
Bluff's motion includes evidence showing that it timely paid the penalties for the other two
citations.
30 FMSHRC 103,9

The Secretary opposes reopenmg on the ground that.Pine Bluff has failed to demonstrate
the exceptional circumstances necessary to support reopening. The Secretary states that the
penalty assessment, MSHA's regulations, and the ·Commission's regulations all unequivocally
provide for 30 days in which to contest a proposed penalty, and that there was nothing that would
have led an experienced operator like Pine Bluff to believe that the conference that was held
suspended the 30-day requirement. The Secretary also includes an affidavit from its
representative stating that he left a telephone message two days after the conference was held
informing Pine Bluff that there would be no changes in the citation. The Secretary alsp points
out that MSHA notified Pine Bluff of the delinquency of the penalty payment over two months
before Pine Bluff filed its motion to reopen.
Pine Bluff responded to the Secretary's opposition to reopening with affidavits of two of
its River Mountain representatives. River Mountain's Human Resources Director, Lloyd Baker,
states that he does not recall receiving the phone message from the MSHA representative that the
citation would not be changed. In addition, both Baker and Jolm Regenhardt, General Manager
of River Mountain, state that when they received the delinquency notice in April 2008, they
believed it was a result ofMSHA incorrectly allocating the payment that Pine Bluff had
submitted on the two penalties it had paid. The two state that it was only the following month,
after they had pursued correction with MSHA, that they realized that the delinquency notice was
for the penalty assessment that bad never been formally contested.
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 Co~ssion 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 t~at, if the defaulting p~ cap make a showing of good ·cause for a failure to .
timely respond, the case may be reope~ed -and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

30FMSHRC 1040

Having reviewed Pine Bluffs motion, the Secretary's opposition, and Pine Bluff's
response to the opposition, in the i.n,terests of justice, we remand this matter to the Chief
Administrative Law Judge for a determination of whether good cause exists for Pine Bluffs ·
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.

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 1041

Distribution:
..

Laura E. Beverage, Esq.
Jackson Kelly PLLC
1099 18th Street, Suite 2150
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3909
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 ·

30 FMSHRC 1042

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

December 8, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE2009-61-M
AC. No. 08-00768-154205 B96

v.
CCC GROUP, INC.

BEFORE: Duffy, Chl:lirman; Jordan; Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On September 17, 2008, the Commission received from CCC
Group, Inc. ("CCC") a letter maintaining that it had filed a timely contest of a proposed penalty
assessment that the Department of Labor's Mine Safety and Health Administration ("MSHA")
was treating as untimely. 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).
CCC' s letter was originally docketed here as a motion to reopen, but the Secretary of
Labor submitted a response to CCC's letter stating that MSHA had erred in taking its original
position, that CCC's contest was in fact timely filed, and that the Secretary will file a petition for
assessment of penalty petition with the Commission and CCC within 45 days. Having reviewed
CCC's letter and the Secretary's response, we conclude that the proposed assessment at

30 FMSHRC 1043

of

issue has not become a final ·o rder the Commission because CCC timely contested it.
Consequently, this· docket is dismissed.

,;
:,

'

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 1044

Distribution:
Gary Klatt, CSP
CCC Group, Inc.
5797 Dietrich Rd.
San Antonio, TX 78219
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC I 045

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

December 10, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2008-1214
A.C. No. 15-18747-089953

v.

SOLAR COAL COMPANY
BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Conunissioners
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 14, 2008, the CommissiOn received from Solar Coal
Company ("Solar") a letter from its owner that was subsequently amended to make clear that
Solar is seeking to reopen eight 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). This order
addresses the request to reopen the eighth of those assessments. 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

In her letter to the Commission, in connection with asserting that the proposed penalty
amount in a pending proceeding is more than the company can afford to pay, Solar's owner states
that "[a]fter examining past citations and reviewing the compan[y's] financial records, I ask that
the following cases be reopened and contested to a lower amount due to their outstanding
balances." The eighth case listed is a proposed penalty assessment that the Department of
Labor's Mine Safety and Health Administration ("MSHA") issued to Solar on June 1, 2006
1

The request to reopen the other seven assessments is the subject of a separate,
concurrently issued, consolidated order.
30 FMSHRC 1046

(A.C. No. 089953). In response, the Secretary states that inability to pay a penalty is not a
grounds for reopening under Rule 60(b) of the Federal Rules of Civil Procedure, and notes that
the assessment at issue cannot be reopened because it became a final order more than one year
before Solar filed its reopening request.
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 reque~ts to
reopen final section lOS(a) orders, the Commission has found guidance in Rule 60(b) ofthe
Federal Rules of Civil Procedure under4 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).
We have been presented with Solar's failure to timely contest the propos~ penalty ,
assessment. Under Rule 60(b), any motion for relief must be made within a reasonable time, ~d
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). Because the proposed penalty assessment was issued on
June 1, 2006f and Solar waited nearly two years to seek relief, its request is untimely. JS Sand &
Gravel, Inc.; ~26 FMSHRC 795, 796 (Oct. 2004r Accordingly,Solar's request is denied.

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 1047

Distribution:
Scarlett Biliter, Owner
Solar Coal Co.
76 George Road
Betsy Lane, KY 41605
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Dep.artment of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief .
Office of Civil Penalt}' Compliance
MSHA
U.S. Dept. OfLabor
1100 Wilson Blvd., 241h Floor West
Aflington, 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

..

30 FMSHRC 1048

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

December 10, 2008
Docket No. KENT 2008-1207
A.C. No. 15-18747-145685

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

Docket No. KENT 2008-1208
A.C. No. 15-18747-142094
Docket No. KENT 2008-1209
A.C. No. 15-18747-138070
Docket No. KENT 2008-1210 ·
A.C. No. 15-18747-135133

v.

Docket No. KENT 2008-1211
A.C. No. 15-18747-132889
Docket No. KENT 2008-1212
A.C. No. 15-18747-130570
SOLAR COAL COMPANY

Docket No. KENT 2008-1213
A.C. No. 15-18747-128271

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

BY THE COMMISSION:

.·

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2000) ("Mine Act"). On May 14, 2008, the Commission received from Solar Coal
Company ("Solar'') a letter from its owner that was subsequently amended to make clear that
Solar is seeking to reopen eight 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). This order addresses
the request to reopen as to seven of the assessments. 1

Pursuant to Commission P~ocedural Rule 12, on our own motion, we hereby
consolidate docket numbers KENT 2008-1207, KENT 2008-1208, KENT 2008-1209, KENT
1

1049

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 her letter to the Commission, in connection with asserting that the proposed penalty
amount in a pending proceeding is more than the company can afford to pay, Solar's owner states
that "[a]fter examining past citations and reviewing the compan[y' s] financial records, I ask that
the following cases be reopened and contested to a lower amount due to their outstanding ..
balances." The first seven cases listed are proposed penalty assessments that the Department of
Labor's Mine Safety and Health Administration ("MSHA") issued to Solar on April 3, 2008 (A.C.
No. 145685), on February 28, 2008 (A:c. No. 142094), on January 31, 2008 (A.C. No. 138070),
on January 3, 20Q8 .(A.C. No. 135133), on November 29, 2007 (A.C. No. 132889), on November
1, 2007 (A.C. No. 130570), and on October 4, 2007 (A.C. No. 128271).

In response, the Secretary states that inability to pay a penalty is not a grounds for
reopening under Rule 60(b) of the Federal Rules of Civil Procedure, and notes that if the operator
wishes to set up a payment plan, it should contact MSHA's Office of Assessments.
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 frorn
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 (!ause 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).
Because Solar' s request for relief does not explain the company's failure to contest the
proposed assessments on a timely basis, 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. See FKZ Coal Inc., 29
FMSHRC 177, 178 (Apr. 2007). The words ''without prejudice" mean that Solar may submit

...
, .

2008-1210, KENT 2008-1211, KENT 2008-1212, and KENT 2008-1213, all captioned Solar
Coal Company and involving similar procedural issues. 29 C.F.R. § 2700.12. The request to
reopen the eighth assessment is docketed at KENT 2008-1214, and is the subject of a separate,
·
concurrently issued, order.
1050

another request to reopen the cases so that it can contest specific citations and penalty
assessments. 2
In the meantime, in order to narrow the potential scope of a refiled request to reop_en, the
Secretary should address with Solar whether Solar's lett~r, dated May 11, 2008, and sent to
MSHA at its address for contests, will be treated by the Secretary as a timely contest of
Assessment No. 145685, dated April 3, 2008, and the subject of Docket No. KENT 2008-1207. If
Solar's letter was sent to MSHA within 30 days of Solar's receipt of that assessment (a date
MSHA should have in its records), the letter would not have been an untimely response to the
assessment.

Robert F. Cohen, Jr., Commissioner

2

If Solar submits another request to reopen, it must identify the specific citations and
assessments it seeks to contest. Solar must also establish good cause for not contesting the
citations and proposed assessments within 30 days from the date it received the proposed penalty
assessments from MSHA. Under Rule 60(b) of the Federal Rules of Civil Procedure, the
existence of "good cause" may be shown by a number of different factors including mistake,
inadvertence, surprise, or excusable fault on the part of the party seeking relief, or the discovery
of new evidence, or fraud, misrepresentation, or other misconduct by the adverse party. Solar
should include a full description of the facts supporting its claim of "good cause," including how
the mistake or other problem prevented Solar from responding within the time limits provided in
the Mine Act, as part of its request to reopen. Solar should also submit copies of supporting
documents with its request to reopen.
1051

Distribution:
Scarlett Bil!ter, Owner
Solar Coal Company ·
76 George Road
Betsy Layne, KY 41605
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health R~view Commission
601 New Jersey Avenue~ N.W., Suite 9500
Washington, D.C. 20001 -2021

1052

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

December 10, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2008-487
AC. No. 36-02022-150443

·v.

S & M COAL COMPANY

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On July 18, 2008, the Commission received from S & M
Coal Company ("S&M") a motion by counsel seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 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 May 13, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA'') issued a proposed penalty assessment of$58,100 that arose from eight citations and
orders issued on September 26, 2007. In his affidavit, S&M's president states that he had always
intended to contest both the penalties and the underlying citations that had been previously
docketed. He further states that he failed to return the assessment form because of"inadvertent
administrative oversight" and that he believed that the citations were already contested. In its
motion, S&M through counsel asserts that it discovered the mistake on July 11, 2008, when the
assessment form was discovered in a file where it had been "misplaced."

30 FMSHRC 1053

The Secretary opp~ses s&M' s· motion to reope~. Tu.e·Secretary argues that S&M has not
made a showing of exceptional circumstances justifying·relief; rather, the Secretary asserts that
the operator has made a conclusory assertion that is insufficient to justify the reopening of a final
order. Further, the Secretary states that S&M's motion is not supported by the accompanying
affidavit because the operator's motion states a factual assertion which is not contained in the
affidavit. Finally, the Secretary asserts that S&M has been delinquent in paying every penalty
associated with 88 violations over the last four years. Therefore, the Secretary concludes that
S&M has not acted in good faith.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessment forms that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in.Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of 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 obs.erved 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).

30 FMSHRC 1054

Having reviewed S&M's request and the Secretary's response, we determine that S&M
has failed to provide a sufficiently detailed explanation for its failure to timely contest the
proposed penalty assessment. S&M's president's conclusory statement that an inadvertent
administrative oversight resulted in failing to timely contest the penalties does not provide .the
Commission with an adequate basis to justify reopening. Accordingly, we deny without
prejtldice S&M's request. See Eastern Assoc. Coal, LLC, 30 FMSHRC 392 (May 2008); James
·
Hamilton Constr., 29 FMSHRC 569, 570 (July 2007). 1

Robert F. Cohen, Jr., Coinmissioner

1

In the event S&M chooses to refile its request to reopen, it should disclose with
specificity its grounds for relief and address the issue of good faith in seeking relief.
30 FMSHRC 1055

Distribution:
Diana R. Schroeher, Esq.
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 W:ilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety~ Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 1056

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

December 15, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. WEST 2008-1314-M
A.C. No. 26-01621-140819 HS6

V.

LANG EXPLORATORY DRILLING

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Acf'). On June 3, 2008, the Commission received from Lang
Exploratory Drilling ("Lang") a request 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 December 19, 2007, the Department of Labor's Mine Safety and Health
Administration (''MSHA") issued a citation to Lang. On February 19, 2008, MSHA issued a
proposed penalty assessment as a result of the citation. Lang asserts that the director of its parent
company, who is responsible for reviewing and determining a course of action on penalty
proposals, never received the proposed assessment. According to the director, 1 Lang had always

1

In an affidavit attached to the motion, Tom Joiner, who is identified as a management
systems director of Boart Longyear Co. ("Boart"), states that Lang is "a wholly owned subsidiary
ofBoart." The citation,.proposed assessment, and delinquency notice were all issued to Lang.
30FMSHRC 1057

intended to contest the citatiot) and the related penalty. Lang further states that on May 21, 2008,
it received a letter from MSHA's Civil Penalty Compliance Office stating that the penalty was
delinquent.

In response, the Secretary states that it opposes th~ request to reopen. The Secretary
states that its records show that it sent the assessment to the operator's address of record and that
it was signed for. Accordingly, the Secretary notes that the operator's statement that it did not
receive the assessment is inaccurate.2
Lang filed a reply to the Secretary in which it states that the assessment was sent to the
address ofrecord, that it was received and signed for by an employee unfamiliar with MSHA
procedures, and consequently that the operator failed to file a timely notice of contest. Lang
further states that, when it received the notice of delinquency, it filed its "Notice of Opposition,"
which has been treated as a request to reopen.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessment forms 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 FMS~~ at 787. We have al$o observed that default is a
harsh remedy and that, if the defaulting party can make a s~owing 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).

2

The assessment form indicates that it was sent to Lang, rather than Boart. Lang does
not explain what type of system it had for forwarding mail to Boart and its director, who was
responsible for reviewing penalty assessments.
.
30 FMSHRC 1058

Having reviewed Lang's request and the Secretary's response, in the interests ofjustice,
we remand this matter to the Chief Administrative Law Judge for a detennination of whether
good cause exists for Lang'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.

Robert F . Cohen, Jr., Commissioner

30 FMSHRC 1059

Distribution:
Matthew F. McNulty, IlI
Van Cott, Bagley, Cornwell & McCarthy
36 South State Street
Suite 1900
Salt Lake City, UT 84111
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilspn Blvd., Room 2220.
Arlington; VA 22209-2296

··

Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept: of Labor
1100 Wilson Blvd., Rm. 2220
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 1060

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

December 17, 2008
SECRETARY OF LABOR,
MlNE SAFETY AND HEALTH
ADMINISJRATION (MSHA)

Docket No. WEVA 2008-273
A.C. No. 46-09030-120039

V.

PINNACLE MINING COMPANY, LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY: Jordan, Young, and Cohen, Commissioners
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 26, 2007, the Commission received from
Pinnacle Mining Company, LLC ("Pinnacle") 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, ~O 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 February 2007, the Department of Labor's Mine Safety and Health.Administration
("MSHA") issued two citations to Pinnacle. MSHA later issued Proposed Assessment
No. 000120039, which proposed penalties for those citations. Mot. at 1. Pinnacle states that in
September 2007, MSHA sent a letter stating that the corresponding civil penalties had become
delinquent. Aff. of Jrunes Bennett at 1. It asks us to reopen the penalty assessment that had
becoi:ne a final order of the Commission,.stating that it failed to timely respond to the assessment
notice because it had not established a reliable mail delivery system. Mot. at 1-3. In particular,
Pinnacle's safety director acknowledges that at the time, the mail was picked up from the Post
Office infrequently and by differt'.nt individual~, and that it was not always delivered to the
correct office or individual in time to respond in a timely manner. Aff. of James Bennett at 2.
30 FMSHRC 1061

He notes that the post office box used by the mine was located 12 to 16 miles from the mine site.
Id. The Secretary, while not opposing the request to reopen, notes that both the penalty
assessment and delinquency letter were sent to the mine address ofrecord. Letter from W.
Christian Schumann (Dec. 17, 2007).
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 m erits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
We conclude that relief is not warranted in this case. Although a party may be entitled to
relief from a final order on the basis of inadvertence or mistake, neither are apparent here.
Rather, even if the operator's assertions are accepted as true, they demonstrate only that it had
tolerated a mail delivery system that clearly had the potential to cause haphazard and untimely
receipt of important mail. 1 Consequently, we find that the excuse proffered is a hollow one.
Indeed, after receiving two citations~ the operator should have realized that inevitably a
subsequent 'time-sensitive penalty assessment would arrive in.the .rriail. Nonetheless, it failed to
create a mechanism to·ensure that it would routinely and effectively receive mail when it was
delivered. Relief should not be granted in ·s uch a case. See Gibbs v. Air Caizada, 810 F.2d 1529,
1537-38 (11th Cir. 1987) (holding that default caused by failure to establish minimum procedural
safeguards for determining that action in response to summons and complaint was taken does not
constitute default through excusable neglect).
·
The Commission has recognized that Rule 60(b) '"is a tool which ... courts are to use
sparingly .... ,,, Atlanta Sand & Supply Co., 30 FMSHRC 605, 608 (July 2008) (citing JWR, 15
FMSHRC at 789). Relief under Rule 60(b) should generally not be accorded to an operator who
creates and condones a ·system which predictably will result in missed deadlines.
.·

1

. Although.in his affidavit, Bennett alleges that mail was sometimes delivered late, he

does not claim that Pinnacle failed to receive its mail at all. Thus, assuming that the proposed
assessment eventually was received, Pinnacle could have taken some action. However, there is
nothing in the record to indicate that the operator responded in any manner to the penalty
assessment for the February 2006 citations until it received the delinquency·letter in September
2007. Shortly thereafter, in October 2007, it paid the assessment in full, according to the
Secretary. Inexplicably, it then filed the pending motion to reopen the final order in November
2007.
30 FMSHRC 1062

Accordingly, we deny Pinnacle's motion.

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 1063

Chairman Duffy, dissenting:
Given that the Secretary does not oppose Pinnacle's request to reopen, I would normally
remand this matter t.o the Chief Adt;niriistrative Law Judge for a detennination of whether relief
should be granted. However, bec~use the operator waited over two months after receiving the
delinquency notice to request reopening, I would deny its request to reopen. I would specify that
dismissal was without prejudice, so that Pinnacle could provide an explanation for the delay if it
chose to renew its request to reopen.

30 FMSHRC 1064

Distribution
Justin A. Rubenstein, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance

MSHA
U.S. Department of Labor
1100 Wilson Blvd., 251h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N_.W., Suite 9500
Washington, D.C. 20001-2021 ·

30 FMSHRC I 065

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

December 17, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2008-272
A.C. No. 46-95868-120025

v.

PINNACLE MINING COMPANY, LLC

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

,: :

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 26, 2007, the Commission received from
Pinnacle Mining Company, LLC ("Pinnacle") 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 August 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a citation and five orders to Pinnacle. MSHA later issued Proposed
Assessment No. 000120025, which proposed penalties for the citation and orders. Mot. at 1.
Pinnacle states that in September 2007, MSHA sent a letter stating that the corresponding civil
penalties had become delinquent. Aff. of James Bennett at 1. It asks us to reopen the penalty
assessment that had become a final order of the Commission, stating that it failed to timely
respond to the assessment notice because it had not established a reliable mail delivery system.
Mot. at 1-3. In particular, Pinnacle's safety director acknowledges that at the time, the mail was
picked up from the Post Office infrequently and by different individuals, and that it was not
always delivered to the correct office or individual in time to respond in a timely manner. Aff. of
30 FMSHRC 1066

James Bennett at 2. He notes that the post office box used by the mine was located 12 to 16
miles from the mine site. Id. The Secretary, while not opposing the request to reopen, notes that
both the penalty assessment and delinquency letter were sent to the mine address of record.
Letter from W. Christian Schumann (Dec. 17, 2007). Pinnacle neither contested nor paid the
penalties.
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 fmal 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).
We conclude that relief is not warranted in this case. Although a party may be entitled to
relief from a final order on the basis of inadvertence or mistake, neither are apparent here.
Rather, even if the operator's assertions are accepted as true, they demonstrate only that it had
tolerated a mail delivery system that clearly had the potential to cause haphazard and untimely
receipt of important mail. 1 Consequently, we find that the excuse proffered is a hollow one.
Indeed, after receiving a citation and five orders, the operator should have realized that inevitably
a subsequent time-sensitive penalty assessment would arrive in the mail. Nonetheless, it failed to
create a mechanism to ensure that it would routinely and effectively receive mail when it was
delivered. Relief should not be granted in such a case. See Gibbs v. Air Canada, 810 F.2d 1529,
1537-38 (11th Cir. 1987) (holding that default caused by failure to establish minimum procedural
safeguards for determining that action in response to summons and complaint was taken does not
constitute default through excusable neglect).
The Commission has recognized that Rule 60(b) '"is a tool which ... courts are to use
sparingly .... "'Atlanta Sand & Supply Co., 30 FMSHRC 605, 608 (July 2008) (citing JWR, 15
FMSHRC at 789). Relief under Rule 60(b) should generally not be accorded to an operator who
creates and condones a system which predictably will result in missed deadlines.

1

Although in his affidavit Bennett alleges that mail was sometimes delivered late, he
does not claim that Pinnacle failed to receive its mail at all. Thus, assuming that the proposed
assessment eventually was received, Pinnacle could have taken some action. However, there is
nothing in the record to indicate that the operator responded in any manner to the penalty
assessment for the August 2006 citation and orders until it requested reopening of the final order
two months after receiving the delinquency letter in September 2007.
30 FMSHRC 1067

·Accordingly, we deny Pinnacle's motion.

. Robert F. Cohen, Jr., Commissioner

. ....I

.!' . I .'

• * .'

.' ..

. •,

30 FMSHRC 1068

'

Chairman Duffy, dissenting:
Given that the Secretary does not oppose Pinnacle's request to reopen, I would normally
remand this matter to the Chief Administrative Law Judge for a determination of whether relief
should be granted. However, because the operator waited over two months after receiving the
delinquency notice to request reopening, I would deny its request to reopen. I would specify that
dismissal was without prejudice, so that Pinnacle could provide an explanation for the delay if it
chose to renew its request to reopen.

30 FMSHRC 1069

Distribution
Justin A. Rubenstein, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts.Blvd., Suite 310
Morgantown, WV 26501
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D .C. 20001-2021

30 FMSHRC 1070

FEDERAL MINE SAFETY AND .H EALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW ·
SUITE 9500
WASHINGTON, DC 20001

December.17, 2008
Docket No. WEVA 2008-927
A.C. No. 46-01816-122324 ..

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

.•

Docket No. WEVA.2008-:-928
A.C. No. 46-01816-133987
Docket No. WEVA 2008-929
A.C. No. 46-01816-125080
Docket No. WEV A 2008-930
A.C. No. 46-05868-125081
DocketNo. WEVA 2008-931
A.C. No. 46-09030-122333

v.

Docket No. WEVA 2008-1360
A.C. No. 46-01816-129390
:

.. : .

Docket No. WEVA 2008-1361
A.C. No. 46-01816-131799
Docket No. WEVA 2008-1362
A.C. No. 46-09030-134000
Docket No. WEVA 2008-1363
A.C. No.. 46-09030-140219
Docket No. WEVA 2008-1364
A.C. No. 46-09030-144941 .

PINNACLE MINING COMPANY, LLC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety.and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On April 15, 2008, the Commission received from Pinnacle
Mining Company ("Pinnacle") motions by counsel seeking to reopen five penalty assessments
that had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 ·

30 FMSHRC 1071

.
.
U.S.C. § 815(a),DocketNos. WEYA2008-927, WEYA2008-928, WEYA2008-929, WEYA
2008-930, and WEYA 2008-931. On June 25, 2008, the Commission received from Pinnacle
motions by counsel seeking to reopen five penalty assessments that had similarly become final
orders of the Commission, Docket Nos. WEYA 2008-1360, WEYA 2008-1361, WEYA 20081362, WEYA 2008-1363, and WEYA 2008-1364. 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed,
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
The Department of Labor's Mine Safety and Health Administration ("MSHA") issued the
ten proposed penalty assessments to Pinnacle on July 17, 2007 (A.C. Nos. 122333 and 122324),
on August 15, 2007 (A.C. Nos. 0125080 and 0125081), on October 17, 2007 (A.C. No. 129390),
on November 14, 2007 (A.C. No. 131799), on December 12, 2007 (A.C. Nos 133987 and
134000), on February 13, 2008 (A.C. No. 140219), and on March 31, 2008 (A.C. No. 144941).
In each proposed penalty assessment MSHA stated:
Pursuant to 30 [C.F.R. §] 100.7, you have 30 days from the receipt
of this proposed assessment to ei~er pay the penalty, or notify
MSHA that you wish to contest the proposed assessment and that
you request a hearing on the violations in question before the
Federal Mine SafetY and Health Review Commission. If you do
not exercise the right herein described within 30 days of receipt of
this proposed assessment, this proposed assessment will become a
final order of the Commission and will be enforced under
provisions of the Federal Mine Safety and Health Act of 1977.
On o ·ctober 26, 2007, MSHA sent delinquency notices infonning Pinnacle that it had not
responded to penalty Assessment Case Nos. 122333 and 122324 in a timely manner and that
payments were now due. On November 15, 2007, MSHA sent Pinnacle delinquency notices for
Assessment Case Nos. 125080 and 125081. On January 9, 2008, MSHA sent a delinquency
notice for Assessment Case No. 129390. On March 6, 2008, MSHA sent Pinnacle a delinquency
notice for Assessment Case No. 133987. On April 24, 2008, MSHA sent Pinnacle delinquency
notices for Assessment Case Nos. 131799 and 134000. On May 7, 2008, MSHA sent Pinnacle a
delinquency notice for Assessment Case No. 140219.

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEYA 2008-927, WEVA 2008-928, WEYA 2008-929, WEVA
2008-930, WEYA 2008-931, WEYA 2008-1360, WEYA 2008-1361, WEYA 2008-1362,
WEYA 2008-1363, ·and WEYA 2008-1364, all captioned Pinnacle Mining Company and '
involving similar procedural issues. 29 C.F.R. § 2700.12.
30 FMSHRC 1072

Pinnacle asserts that it failed to contest the penalty assessments within the required 30
days because its Safety Director, James Bennett, believed that the proposed penalties were
already contested. In affidavits accompanying these 10 motions, which are virtually identical
except for the case number references, Mr. Bennett states that as Safety Director, he is
responsible for dealing with MSHA enforcement actions including the filing of civil penalty
contests. Mr. Bennett also states in each affidavit that upon receiving notice that the various
enforcement actions in each case "were not considered by MSHA to be in contest," he
"conducted an investigation and requested that the accompanying Motion to Reopen Civil
Penalty Proceeding be filed." In the affidavits accompanying Docket Nos. 2008-1360 through
2008-1364, Mr. Bennett also states that during the time·the proposed assessments were issued,
"Pinnacle was undergoing a management and ownership transfer." Pinnacle asserts in all ten
motions that it is entitled to the reopening of the penalty assessments contained in these final
orders because of either "excusable neglect or perhaps a failure on MSHA 's part."

In response, the Secretary states that the operator failed to adequately explain its failure to
timely contest the proposed penalty assessment. The Secretary states that MSHA has no record
that it ever received contests for any of the penalty assessments in question. She further asserts
in Docket Nos. WEVA 2008-927 through WEVA 2008-931 that Pinnacle in its April 15, 2008,
motions to reopen failed to explain why it did not seek reopening within a reasonable period of
time when four of the five delinquency notices in this case were sent in October and November
of 2007.2 In Docket Nos. WEVA 2008-927 through WEYA 2008-931 Pinnacle filed a response
to the Secretary's pleadings which did not provide any additional facts for the Commission to
consider.
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 .o f 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 Judg~s 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 Ffy!SHRC 1529, 1530 (Sept. 1995).

2

In Docket Nos. WEVA 2008-927 through 2008-931, the Secretary also brought a
motion to file her responses out of time, which was opposed by Pinnacle. Given that the
Secretary's delay was only one week and these dockets involve 175 violations which the
Secretary needed to research, we grant the Secretary's motion and accept her Opposition to
Motion to Reopen Penalty Assessments.
30 FMSHRC 1073

Having reviewed Pinnacle's motion to reopen and the Secretary's response thereto, we
agree with the Secretary that Pinnacle has failed to provide a sufficiently detailed explanation for .
its failure to timely contest the proposed penalty asse~sments. In these consolidated cases in ten
dockets, Pinnacle requests that we reopen, by Pinnacle's count, 278 citations or orders with final
penalty assessments totaling over $264,000.· Pinnacle's claims that it believed, erroneously, it
had properly contested 10 sets of proposed assessments during a period of over nine months are
conclusory, essentially identical, and do not provide the Commission an adequate basis to justify
reopening. Pinnacle's further claims that, although it first was sent a delinquency notice in
October 2007 and did not submit its first set of motions for reopening until April 2008, its Safety
Director took prompt action to investi~ate and seek reopening'of each delinquency upon learning
of it, are similarly conclusory. Accordingly, we deny without prejudice Pinnacle's request See
Eastern Assoc. Coal LLC, 30 FMSHRC 392,.394 (May 2008);1ames Hamilton Constr., 29
FMSHRC 569, 570 (July 2007).

In light of the number of citations and orders at issue, the delay in seeking reopenings,
and the absence of explanation in its motions, the Commission would expect Pinnacle to provide,
in verified affidavits with relevant documents attached, detailed evidence of: (1) the
circumstances supporting the claim that the Safety Manager believed that each of the proposed
assessments had been properly contested; (2) what Pinnacle did after receiving the various
notices of delinquency; and (3) the Safety Manager's investigations.

Robert F. Cohen, Jr., Commissioner

30FMSHRC 1074

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

30 FMSHRC 1075

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

December 22, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2008-934-M
A.C. No. 45-03338-113621

v.
PALMER COKING COAL COMPANY
BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On May 1, 2008, the Commission received from Palmer
Coking Coal Company ("Palmer") a letter, dated April 25, 2008, seeking to reopen a penalty
assessment that may have become a final order of the Commission pursuant to section 105(a) of
the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On March 15, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000113621 to Palmer, which proposed civil
penalties for four citations, including Citation Nos. 6396248 and 6396249. Palmer states that on
March 26, 2007, its manager mailed its contest of the proposed penalties for Citation Nos.
6396248 and 6396249 to MSHA. MSHA issued a delinquency notice to Palmer on June 22,
2007. Palmer has submitted a copy of a letter to MSHA dated June 25, 2007, in which it alleged
that it timely contested the proposed assessment. 1 Palmer alleges further that in October 2007, it

1

Palmer did not include a copy of its March 26, 2007 submission to MSHA in its
submission to the Commission.
30FMSHRC i076

received a notice from the U.S. Department of the Treasury stating that it failed to timely contest
Proposed Assessment No. 000113621. Palmer submits that it responded by mailing letters to the
U.S. Department of the Treasury and to MSHA explaining that its contest had been timely filed.
While the Secretary states that she does not oppose Palmer's request to reopen, she states
that she has no record ofreceiving Palmer's contest of the penalty assessment. .
On the record presently before us, we are unable to determine whether Palmer timely
contested the proposed penalty assessment. Specifically, it is unclear on what date, between
March 15 and 26, 2007, Palmer received the proposed penalty assessment. It is also unclear on
what date Palmer contested the proposed assessment, particularly since the Secretary indicates
that she has no record of receiving such a contest. If the company timely contested the proposed
assessment, the proposed assessment has not become a final order of the Commission and the
company's request for relief would be moot. DS Mine &Dev. LLC, 28 FMSHRC 462, 463 (July
2006).

If Palmer failed to timely contest the proposed assessment, however, the Commission
may not be able to grant the relief requested. Id. 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). Depending upon the date that Palmer received the proposed
assessment, the proposed assessment could have become a final Commission order between
April 14 and April 25, 2007. Palmer's letter requesting a reopening of the proposed assessment
is dated April 25, 2008.3 Thus, Palmer may have requested a reopening of the proposed
assessment more than one year after it became a final Commission order. JS Sand & Gravel,
Inc., 26 FMSHRC 79_5, 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 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). 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.
3

MSHA 's delinquency notice to the operator lists a final order date of April 29, 2007.
There is no indication, however, regarding the manner in which that date was calculated.
30 FMSHRC 1077

Accordingly, we remand this matter to the Chief Administrative Law Judge for a
determination of whether Palmer timely contested the proposed penalty assessment at issue: In
making this determination, the Chief Administrative Law Judge should obtain from Palmer any
proof of mailing of its March 26, 2007. contest of the proposed assessment, or any other
documentation (e.g ., an affidavit) that supports the operator's assertion that it was mailed on that
date. If it is determined 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 detennined that Palmer failed to timely contest the proposed
assessment, the Chief Judge shall determine whether to dismiss this proceeding, or whether good
cause exists for granting relief from th~ final order.

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 1078

Distribution:
William Kombol, Mngr.
Palmer Coking Coal Co.
31407 Highway 169
P.O. Box 10
Black Diamond, WA 980 I 0
W. Christian Schumann, Esq,
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & He~lth Review Commission
601 New Jersey Avenue, N.W., Suite 9~00
Was~ington, D.C. 20001-2021

30 FMSHRC 1079

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

December 22, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEVA 2008-1082
A.C. No. 46-08224-134590 H332

STOWERS TRUCKING, LLC

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

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On May 8, 2008, the'Commis's ion received from Stowers
Trucking, LLC ("Stowers") a motion by counsel seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 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 December 20, 2007, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Proposed Assessment No. 000134590 to Stowers, proposing
civil penalties for one citation and four orders. In an affidavit, Stowers' office manager states
that on January 3, 2008, she faxed the proposed assessment to counsel, requesting that the
citation and orders and associated proposed penalties be contested. Stowers states that, rather
than contesting the proposed assessment, counsel inadvertently placed the proposed assessment
form in a file. The mistake was apparently not discovered until a meeting between Stowers and
counsel in March 2008, after the proposed assessment had become a final order of the
Commission. The Secretary states that she does not oppose Stowers' request to reopen the
proposed assessment.

30 FMSHRC 1080

We have held that in appropriate circumstances, we possess jurisdiction to reopen
tmcontested 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 F~eral
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 Stowers' request, in the interests of justice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for Stowers'
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.

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 1081

Distribution:
Mark E. Heath, Esq.
Spilman, Thomas & Battle, PLLC
300 Kanawha Blvd. East
P .O. Box 273
Charleston. WV 25321
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22°d Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge.Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021
.'

30 FMSHRC 1082

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

December 22, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEYA 2008-1083
A.C. No. 46-07366-135717 ·

. v.
Docket No. WEYA 2008-1084
A.C. No. 46-07366-'138992

RUSCAT ENTERPRISES, INC.

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

§ 801 et seq. (2000) ("Mine Act"). 1 On May 12, 2008, the Commission received from Ruscat
Enterprises, Inc. ("Ruscat") a letter seeking to reopen penalty assessments that may have· become
final orders of the Commission pursuant to section I OS(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 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 9, and February 6, 2008, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Proposed Assessment Nos. 000135717 and 000138992,
respectively, to Ruscat, proposing civil penalties for several citations. Ruscat states that it never
received the original proposed assessment forms. It alleges that it received copies of the
proposed assessments only after it received delinquency notices from MSHA seeking payment of
the penalties. While the Secretary states that she does not oppose Ruscat's request to reopen, she

1

Pursuant to Commission Procedural Rule 12, 29 C.F.R. § 2700.12, on our own motion,
we hereby consolidate Docket Nos. WEYA 2008-1083 and WEYA 2008-1084, as both dockets
involve similar procedural issues and similar factual backgrounds.

30 FMSHRC 1083

notes that the proposed assessments· were sent by Federal Express to Ruscat's address of record,
but were returned undelivered because of an incorrect address.
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).

It is an operator's responsibility to file with MSHA the address of a mine and any changes
of address. 30 C.F.R. §§ 41.10, 41.12. Operators may request service by delivery to another
appropriate address provided by the operator. 30 C.F.R. § 41.30.
It is unclear from the record whether MSHA mailed the proposed assessment to Ruscat's
official address of record at the tim~ ·o f assessment and whether Ruscat maintained its correct
address with MSHA. . IfMSHA ~ent the prop.osed assessm~nt toRuscat's official address ~f
record, grounds may ex.ist for denying Ruscat's request for reli~f. q. Harvey Trucking.-21
FMSHRC 567, 568-69 & n.1 (June 19~9) (stating that operator is required to notify MSHA of
changes of address). If, however, MSHA mailed the proposed assessment to an incorrect
address, the proposed as~essment may not have become a final Commission order and Ruscat's
request may be moot. ·
·

30 FMSHRC 1084

Having reviewed Ruscat's request and the Secretary's response, in the interests ofjustice,
we remand this matter to the Chief Administrative Law Judge for a determination of whether
Ruscat timely contested the penalty proposals. We ask the Chief Judge, in considering the
matter, to resolve the dispute over whether MSHA sent the proposed assessment to Ruscat's
official address ofrecord at the time of assessment. The Judge shall order further appropriate
proceedings based upon that determination in accordance with principles described herein, the
Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. See Mass Transport,
Inc., 30 FMSHRC _ , slip op. at 3-4, No. WEY A 2008-425 (Nov. 6, 2008).

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 1085

Distribution:

.,

Donnie Coleman
Safety Consultant
Ruscat Enterprise~, Inc.
P.O. Box 1537 .
Welch, WV 24801
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Bivd·., Room 2220
Arlington,: A 22209-2296

v

Myra James, Chief
Office of Civil Penalty Compliance

MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
·,

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

30 FMSHRC 1086

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

November 3, 2008
CIVIL PENALTY PROCEEDJNG

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

Docket No. PENN 2004-158
·A. C. No. 36-08746-26477 LVY

V.

Quecreek No. 1 Mine
PBS COALS, JNC.,
Respondent
CIVIL PENALTY PROCEEDJNG

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

Docket No. PENN 2004-152
A. C. No. 36-08746-26478 KQN

V.

Quecreek No. 1 Mine
MUSSER ENGINEERJNG, INC.,
Respondent

DECISION
These consolidated proceedings were 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"),
following a July 24, 2002 nonfatal entrapment accident at the Quecreek No. 1 Mine, located in
Somerset County, Pennsylvania. In a prior ruling on cross motions for summary decision, I
concluded that Respondents PBS Coal, Inc. ("PBS") and Musser Engineering, Inc. ("Musser'')
violated 30 C.F.R. § 75.12001 as alleged by the Secretary. Black Wolf Coal Co., 28 FMSHRC 699,

1

30 C.F.R. § 75.1200 provides:

The operator of a coal mine shall have in a fireproof repository located in an a:rea on the
surface of the mine "chQsen by the mine operator 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; ·
30 FMSHRC .1087

709, 716 (July 2006).2 I further concluded that as to the ciyil penalties proposed by the Secretary,
outstanding questions of material fact precluded a summary decision. Id. at 711, 717. There were
insufficient uncontroverted stipulations of fact to allow me to determine whether PBS' s reliance on
a mine map prepared by Consolidation Coal Co. ("Consol") was reasonable, id. at 711, and
whether Musser knew or had reason to know that its permit map would serve as the basis for the
MSHA section 75.1200 map of the Quecreek No. 1 Mine, id. at 717.
A hearing on these questions was held from August 28 to August 31, 2007, at the Somerset
County Court House in Somerset, Pennsylvania. The parties filed post-hearing briefs, which I have
considered in reaching my decision. For the reasons that follow, I conclude that the penalties
initially proposed by the Secretary against PBS and Musser would not adequately effectuate "the
deterrent purpose underlying the Act's penalty assessment scheme." Sellersburg Stone Co., 5
FMSHRC 287, 294 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984). I reach this decision based
on my conclusion that PBS and Musser abjectly failed to meet the level of care required of them
under section 75.1200, and that their failure to do so constitutes a very high level of negligence. I
also base my decision on the extreme gravity associated with the violations of section 7 5 .1200
committed by PBS and Musser.

In my prior decision, I set forth the procedural background of these proceedings and
summarized the relevant uncontroverted facts as set forth in the parties' joint stipulations of fact.
28 FMSHRC at 700-704. For purposes of this decision, I hereby incorporate by reference my prior
findings. Further findings of fact based upon evidence adduced at trial are set forth below.

( e) Elevations of all main and cross or side entries;
(f) Dip of the coalbed;
(g) Escapeways;
(h) Adjacent mine workings within 1,000 feet;
(i) Mines above or below;
(j) Water pools above; and
.
.
(k) Either producing or abandoned oil and gas wells located within 500 feet of such mine
and any underground area of such mine; and,
.
.
(1) Such other information as the Secretary may require. Such map shall identify those
areas ·ofthe mine which have been pillared, worked out, or abandoned; which are inaccessible or
cannot be entered safely and on which no information is available.
Black Wolf Coal Company, Inc. ("Black Wolf') originally was ~party to these
proceedings (PENN 2004-157), but following my ruling ·B lack Wolf separately entered into a
settlement agreement with the Secretary. I have approved the settlement ·in an order being issued
concurrently with this decision.
2

30 FMSHRC I 088

Findings of Fact

1. Musser was aware that the map prepared for the.Quecreek No. 1 Mine permit had to
show among other things an outline of abandoned mines adjacent to the proposed mine being
permitted. Tr. 150 (testimony of Edwin Secor, former Musser supervising engineer).
2. After Musser requested Consol to provide it with any maps of the Harrison No. 2 Mine
(see Stip. 65), Consol provided a map to Musser that was later determined to be inaccurate because

it showed reserves that had already been mined. Tr. 44-45.
3. Musser and PBS subsequently obtained another map from Consol (Stip. 65) that was not
dated, marked final, or certified by a professional engineer or surveyor. Gov't Ex. 3 (hereinafter
"Consol Map 2").
4. Musser used the Consol Map 2 as the basis for delineating the boundary of the Harrison
No. 2 Mine. Tr..59, 577, 192-93.
5. Musser's delineation of the boundary of the Harrison No. 2 Mine in turn defined·the. ·
extent of mining in the Quecreek No. 1 Mine, the limit of which was a 200-foot barrier between '.;··
development in the Que~reek No. 1 Mine and what was believed to be the furthest extent of the
Harrison No. 2 Mine. Stip. 66.
6. PBS was aware that Musser used the Consol Map 2 in delineating·the boundary of the
Harrison No. 2 Mine, and raised no objections. Tr. 43, 58-59, 106-07, 192-93.
7. The Quecreek No. 1 Mine map Musser prepared that was based on the Consol Map 2
was certified by Edwin Secor, a Musser supervising engineer, and submitted on behalf of Quecreek
Mining Company ("Quecreek") to the Commonwealth of Pennsylvania Department of
Environmental Protection as part of the initial permit package for the·Quecreek No. 1·Mine. Tr.
91-92, 107-08, 137-38, 143-45; Gov't Ex. 5.
8. Musser and PBS knew that it was standard practice for an environmental permit map
such as the one Musser prepared and submitted .o n behalf of Quecreek to be used as the base map . ···
from which a mine map required by MSBA would be ·drawn. Tr.,32-33; 59-60, 335-36, 575.
9. The location of adjacent mines does not change once they are plotted on a permit map,
but are simply transferred over to the mine map required by MSHA. Tr. 33, 196~ 336.
10. PBS prepared all of the maps of the Quecreek No. 1 Mine by transferring the boundary
of the Harrison No. 2 Mine as delineated on the permit map prepared by Musser. Tr. 198, 203-04.
11. PBS prepared and provided rninemaps to Black Wolf, the production operator of the ·
mine.. based on the environmental permit map that showed the incorrect boundary of the Harrison
30 FMSHRC 1089

No. 2 Mine. Tr. 271-3.
12. If Black Wolf "had known that the boundary line of the [Harrison No. 2 Mine] had
been established by the use of an uncertified undated property map of Consol, ...[Black Wolf]
would have done something different. ... " Tr. 279-80 (testimony of David Rebuck, president of
Black Wolf Coal Company).
13. Mine maps commonly depict uncertainty over the extent of workings through the use
of dashed or dotted lines, Tr. 522-36, 569, Gov't Exs. 10-13, and both Musser and PBS were
aware of this mine mapping convention, Tr. 203, 598-99.

Discussion
The principles governing the authority of Commission Administrative Law Judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(1)
of the Mine Act delegates to the Commission and its judges ''authority to assess·all civil penalties
provided in [the] Act." 30 U.S.C. § 820(1). The Act delegates the duty of proposing penalties to
the Secretary. 30 U.S.C. §§ 815(a) and 820(a). Thus, when an operator notifies the Secretary
that it intends to challenge a penalty, the Secretary petitions the Commission to assess the
penalty. 29 C.F.R. § 2700.28. The Act requires that, "[i]n assessing civil monetary penalties, the
Commission [ALJ] shall consider" six statutory penalty criteria:

[1.J the operator's history of previous violations, (2] the appropriateness of such
penalty to the siie of the business of the operator charged, [3] whether the operator
was negligent, [4] the effect on the operator's ability to continue in business, [5) the
gravity of the violation, and [6] the demonstrated good faith of the person charged
in attempting to achieve rapid compliance after notification of a violation.
30 U.S.C. § 820(1) (brackets added).

"

In keeping with this statutory requirement, the Commission has held that "findings of fact
on the [six] statutory penalty criteria.must be made" by its judges. Sellersburg, 5 FMSHRC at
292. · Once findings on the statutory criteria have· been made,,a judge's penalty assessment for a
particular violation is an exercise of discretion, which is bol.inded by proper consideration of the
statutory criteria and the deterrent purposes of the Act. Id. at 294; Cantera Green, 22 FMSHRC
616, 620 (May 2000) ("Commission judges are accorded broad discretion in assessing civil
penalties under the Mine Act"). In exercising this discretion, the Comtr1ission has recently
reiterated that in determining the amount of a penalty, a judge is not bound by the penalty
recommended by the Secretary. Spartan ·Mining Co.,. ~O FMSHRC 699, 723 (Aug. 2008) (citing
Sellersburg, 5 FMSHRC at 291). The Commission also emphasized that when a judge's penalty
determinations "substantially diverge from those originally proposed, it behooves [the judge] to
provide a sufficient explanation of the bases underlying the penalties assessed by the [judge]."
Id. The Commission warned in Sellersburg that without an explanation for such a divergence,
30 FMSHRC 1090

"the credibility of the administrative scheme pi;oviding for the increase-or lowering of penalties
after contest may be jeopardized by an appearance of arbitrariness." 5 FMSHRC at 293.
Here, there is no dispute as to the facts relating to several of the statutory penalty criteria.
Both of the Respondents and the Secretary have stipulated as to both PBS and Musser that (1) the
Respondents have no significant history of previous violations, (2) the proposed penalties are
appropriate to the size of the Respondents' businesses, (3) the proposed penalties will not affect
the ability of the Respondents to continue in business, and (4) the Respondents abated the
violations at issue in good faith. Trial Stip. 1; Gov't Exs. 1-2._ I accept the stipulations made by
the parties and as to the four criteria, I find that PBS and Musser are both small operat9rs with
negligible histories of previous violations, that any penalty imposed under the Mine Act will not
affect the. ability of either PBS or Musser to continue in.business, and that PB.S and Musser
abated the violations in good faith. There remain two criteria on which I must make findings of
fact - - the degree to which PBS and Musser acted negligently in violating section 75.1200, and
the gravity of their violations.

Gravity
In a 1996 Consolidation Coal Co. decision, the Commission stated: "The gravity penalty
criterion .under section 110(1) of the Mine Act . . . is often viewed in ~erms of the seriousness of
the violation. . . . The focus of the seriousness of the violation is not necessarily on the .
reasonable likellhood of serious injury, which is the focus of the S&S inquiry, but rather on the
effect ofthe hazar.d if.it occurs." 18 FMSHRC 1541, 1549-50 (Sept. 1996) (emphasis added)
(affirmingjudg~'s finding that a violation was "serious" based upon evidence of what could have
occurred given the conditions present).
On July 24, 2002, eighteen miners were working underground in the Quecreek Mine. As
a consequence of an inaccurate map, the wet conditions at the No. 6 entry were not perceived as a.
warning of impending d.isaster. At approximately 8:45 p.m., water broke through the working
face of the No. 6 entry of the Quecreek No. 1 Mine, and nine miners were trapped underground
by the resulting inundation. Stip. 29. Nine other miners narrowly escaped a similar fate. The
effect of the hazard in this instance was both potentially and actually no less than catastrophic for
these miners. Seventy two million gallons of water rushed into the mine. Tr. 391, 397. As a
result of the flooding all miners underground faced the possibilities of grievous bodily injury
from ·the force of the water entering the mine, blocked escapew,ays, severely compromised.
ventil.ation, and hypothermia. Tr. 397. In addition, those trapped underground faced and.
prepared for the ultimate consequence, death. They tied themselves together so that they would
be found as a group after the flood waters rose, and they wrote notes to their loved ones and
placed them in a waterproof container. Tr. 395-97. These miners surely would have died but for
a rescue that was nothing short of miraculous. See Sec'y Br. at 10 (the miners "miraculously

30 FMSHRC 1091

escaped being seriously or fatally injured").3 The fact that the nine miners were rescued,
however, in no way diminishes the·seriousness of the violation that led to their predicament.
Accordingly, I find that the violations of section 75.1200 committed by PBS and Musser
·
were of the utmost gravity. ·
Neelieence

The Mine Act states unequivocally that "the first priority and concern of all in the coal
... mining industry·must be the health and safety of its most precious resource - the miner."
30 U.S.C. § 801(a) (emphasis added). Furthermore, mine operators and their contractors have an
absolute duty to maintain an accurate mine 'map, including a duty.to show all adjacent mine ·
workings within 1,000 feet. 30 C.F.R. § 75.1200. As I have.already ~etermined, the Quecreek
mine map was inaccurate on the day of the inundation, and therefore, PBS and Musser violated
·
section 75.1200.
In determining the degree to which PBS and Musser were negligent, I turn for guidance to

the Secretary's regulations, which state:
Negligence is conduct, either by commission or omission, which falls below a ·
standard of care established under the Mine Act to protect miners against the risks ·.
of harm. Under the·Mine Act, an operator is held to a high standard of care. A mine
operator is required to be on the alert for conditions and practices in the mine that
affect the safety or health ofminers and to take steps necessary to correct or prevent
hazardous conditions or practices. The failure to exercise a high standard of care
constitutes negligence.
30 C.F.R. § 100.3(d). Under this same standard, high negligence is found if an "operator knew
·
or should have known of the violative condition or practice, and there are no mitigating
circumstances." Id. at Table X. The Secretary's Part 100 reguiations do not go beyond high
·
·
negligence.
In my prior decision, I stated that the facts as stipulated to by the parties were insufficient

to determine the key questions of"whether PBS's reliance on the Consol map was reasonable,"
and ''whether Musser knew or had reason to believe that its permit map would serve as the basis
for the MSHA section 75.1200 map." 28 FMSHRC at 711, 717. After hearing the evidence and
considering the arguments of the parties on these questions, I conclude that PBS and Musser
were not merely moderately negligent as suggested by the Secretary, but instead acted in a very
3

I take judicial notice that the facts regarding the miners' ordeal and rescue as set forth
by MSHA engineer Stanley Joseph Michalek and counsel for the secretary were reported without
contradiction by the local and national media that descended within hours of the inundation on
the farm of William and Lori Arnold located 250 feet above the Quecreek No. 1 Mine.
30 FMSI1R.C 1092

highly negligent manner when they violated section 75.1200.
I begin by noting that according to one commentator, "(t]he amount of care den:ianded by
the standard of reasonable conduct must be in proportion to the apparent risk. As the danger
becomes greater the actor is required to exercise caution commensurate with it." W. Page Keeton
et al., Prosser and Keeton on the Law of Torts§ 34, at 208 (5th ed. 1984). I find the record in this
matter replete with instances of PBS and Musser failing to act conservatively and to err on the side
of safety. To the contrary, the attitude here }Vas one of"[w]e permit as_much as we can." Tr. 57.
Another witness testified that ''you permitted as much as you can to the 200-foot [limit]." . Tr. 67.
Contrary to the Secretary's statement that "it is a sin of ()mission that forms the basis of [PBS.an~
Musser's] negligence," Sec'y Reply Br. at 6, I find that the Respondents committed sins of
commission, that they knowingly mapped the Quecreek No. 1 Mine based upon.questionable
information, knowingly placed their production agenda ahead of caution, and then directed their.
miners into areas that could tragically turn out to be "undiscovered country, from whose boum I No
traveler returns.'' Hamlet, Act ill, scene 1. We can only be thankful that the nine miners did
miraculously return from their would be grave, the Quecreek Mine.

I find that Musser and PBS searched for maps of mines adjacent to the Quecreek No. 1.
Mine, in particular the Harrison No. 2 Mine, and in consultation with each other, agreed to base the
boundary of the Harrison No. 2 Mine on a map provided to them by Consol. Tr. 43-44, 58-~9, 6162, 106-07, 192-93. The trouble was this was the second map Consol provided - the first Consol ·
map contained outdated information, showing as reserves areas that had in fact been mined. Tr. 45.
Nor was this second map upon which Musser and PBS based their actions dated, marked fmal, or
certified by a professional engineer or surveyor. Gov't Ex. 3. As one witness for the Respondents
testified, the second Consol map "was .the best we .had at the time" despite the fact that they did. not :
consider it an accurate rendition. Tr. 57-58 (testimony of Musser engineer David Lucas). When
asked whether he ~onsidered the second Consol map to be."an accurate rendition" of the
boundaries of the Harrison No. 2 Mine, Lucas responded: ''No." Id. Lucas went on to
acknowledge that he was, in fact, "unsatisfied" with the second Consol map. Id. In the face of all
good judgment and common sense, Musser and PBS decided to accept the second Consol map as
an adequate b;:i.sis upon which to delineate the boundaries of the Harrison No. 2 Mine. Tbey
assumed the map from Consol was accurate because they had asked for "the best map available."
Tr. 105.
Having received two contradictory maps from Consol ought to have put the Respondents
on notice that all was not right, an indication that "these guys [Consol] don't have their system
down like they used to." Tr. 458. Even Musser's expert witness agreed that getting an unreliable
map would raise doubts about other maps obtained from the same source. Tr. 651-52. Moreover,
it was common knowledge that final, certified mine maps were a rare commodity in Somerset ·
County, Pennsylvania. Tr. 77, 218. One thing the Respondents knew, however, was.that the
Harrison No ..2 Mine was full of water and updip from the propos~d Quecreek No. 1 Mine. I find .
that under these circUir1stances, a reasonably prudent person would have erred on the side of safety
and taken additional precautions. The Respondents took no such precautions, choosing instead to
30 FMSHRC 1093

play Russian roulette with the lives of miners. As one MSHA witness stated: a reasonably prudent
engineer would "ma[ke] it known that there's a potential for something out there, even if you didn't
find it,"·and that this would serve as "a fair warning for everyone down the road that looks at that
map that there ~ould be a problem." Tr. 431.
Given all this, I find it incomprehensible that Musser and PBS failed to place any type of
warning on the section 75.1200 map.4 Just as unexplored areas of the Earth were often shown on
maps as great voids of either lightness or darkness, the boundary between the old Harrison No. 2
Mine and the Quecreek Mine could have been shown as just such undiscovered country. The ·
Secretary introduced into evidence mine maps that used dashed or dotted lines where the extent of
workings were unknown. Tr. 522-36, 569; Gov't Ex. 10-13. Witnesses for the Respondents
·
admitted to having seen maps with such markings, Tr. 203, 598-99, and even acknowledged that
·
uncertain boundaries should be noted on mine maps, Tr. 386, 666-67.

In light of the foregoing discussion, I conclude that Musser and PBS acted in a grossly
·
negligent manner.
Sienificant and Substantial

· In their posthearing briefs, the parties address the issue of whether the violations of section
75.1200 at issue here were significant and substantial (S&S). See Mathies Coal Co., ·6 FMSHRC
1, 3-4 (Jan. 1984). I find that the violations were indeed 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 "significant and substantial," i.e., more serious violations. ·A violation is S&s· if, ·
based on the particular facts surrounding the violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a reasonably serious nature. See Cement
Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In the Mathies case, the C.ommission
further explained:
·
·

In order to establish that a violation of a mandatory safety standard is significant and ·
substantial under National Gypsuin, 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.

4

Contrary to Musser's argument that the company "had all the available informatiOn and ·
there was no reason to suspect that the mapping of the Harrison No. 2 boundary was inaccurate,"
Musser Br. at 13, !'find ample record evidence establishes that Musser was on notice that at best,
the boundary to the Harrison No. 2 Mine was uncertain, [Tr. 57-58], and that given this
uncertainty, Musser had a higher duty of care to err on the side of caution.
30 FMSHRC 1094

6 FMSHRC at 3-4 (footnote omitted). Although the Commission has also held that an evaluation
of the reasonable likelihood of injury should be made assuming continued "nonnal" mining
operations, see U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985), in this case mining
operations ceased due to the enormity of the accident that occurred.
Here, it is self evident that the elements of Mathies have been established. In my prior
decision, I found that Musser and PBS vjolated section 75.1200 when they prepared an inaccurate
map of the Quecreek No. 1 Mine, then used that map to prepare the maps upon which production
mining was based . .28 FMSHRC at 709, 716. I find that these violations-contributed to the
inund~tion of the Quecreek No. 1 Mine that occurred on July 24, 2002. Musser knew the risk.
PBS knew the risk. Only the 18 miners who entered the Quecreek No. 1 mine on July 24, 2002,
were deprived of this knowledge. Indeed, the inundation would not have occurred had maps been
prepared that allowed an adequate warning of the lack of certainty regarding the boundaries of the
mine that was breached and from which the inundation flowed. As for the final Mathies elements,
I have already found that the consequences of the inaccurate map placed 18 miners in peril of their
lives. Quite compe1ling evidence was adduced at trial as to the near certainty - but for a
miraculous rescue - of the deaths of nine miners trapped underground with no daylight for three
long days and four long nights. Tr. 389-98.
Accordingly, I find that the violations of30 C.F.R. § 75.1200 committed by PBS and
Musser were S&S.

Penalty Assessments
..

At the time of the Quecreek Mine inundation, the maximum penalty for a violation of the .
Mine Act or the Secretary's regulations thereunder was $55,000. 30 C.F.R. § 100.3(a) (2002). In
these proceedings, the Secretary's penalty proposal has been something of a moving target. She·
initially proposed that the Commission assess penalties of $5,000 against each Respondent. Sec'y.
Br. at 31. In her reply brief, however, she states: "Given the seriousness of the violations, it is
appropriate for the judge to impose the maximum civil penalties in this case. The Secretary
respectfully requests an Order requiring Respondents PBS and Musser ~o pay civil penalties in the
amount of the statutory maximums of $55,000." Sec'y Reply Br. at 23-24.
As I have already noted, I am not bound by the Secretary's penalty proposals but must
instead make a de novo determination of an appropriate penalty based on the six statutory criteria
specified in section l lO(I) of the Mine Act. Sellersburg, 5 FMSHRC at 291. In light of my
findings that the Respondents exhibited a very high level of negligence, and that the gravity of their
violations was also very high, I find that it is appropriate to depart from and increase substmtially
the Secretary's original penalty proposal.
Accordingly, having considered the six statutory penalty criteria, and finding significant
aggravating factors as to the high negligence of Musser and PBS, as well as to the gravity of their
violations, I find that a penalty of $55,000 is appropriate for each of the Respondents' violations of
30 C.F.R. § 75.1200.
30 FMSHRC I 095

Order
Consistent with this Decision, IT IS ORDERED that PBS Coals, Inc., shall pay a total
civil penalty of $55,000.00.for the violation of section 75.1200 set forth in Citation No. 7322488.

IT IS FURTHER ORDERED that Musser Engineering, Inc., shall pay a total civil
penalty of $55,000.00 for the violation of section 75.1200 set forth in Citation No. 7322487.
Payment is to be made to the Mine Safety and Health Administration within 40 days of the
date ofthis Decision. ·Upon timely receipt of payment, the captioned civil'penalty matters ARE
DISMISSED.
.'
'• '

?J.~+.LJ
Robert J. Lesnick
Chief Administrative Law Judge

Distribution;;
Timothy S. Williams, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite·l600, Denver, CO 80202

R Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty
A venue, Pittsburgh, PA . 15222
Marco M. Rajkovich, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 2333 Alumni Park
Plaza, Suite 310, Lexington, KY 40517

30 FMSHRC 1096

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

November 6, 2008

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

v.
HIGHLAND MINING CO., LLC,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 2008-104
A.C. No. 15-02709-128890-02
Docket No. KENT 2008-106
A.C. No.15-02709-128890:;04
Mine: Highland 9

DECISION
Appearances: Jennifer Booth, Esq., and Thomas Grooms, Esq., Office ofthe SoJicitor, U.S.
· Department of Labor, Nashville, Tennessee, on behalf of the Petitioner;
Michael Cimino, Esq, Jackson Kelly, PLLC, Charleston, w ·est Virginia, and Eric
Walker, Esq., Waverly, Kentucky, on behalf of the Respondent.
Before:

Judge Melick

These cases are before me upon petitions for civil penalty filed by the Secretary.of Labor
pursuant to section 105(d) of the Federal Mine Safety and He.a lth Act of 1977, 30 U.S.C. ·§ 801 et
seq., the "Act," charging Highland Mining Company, LLC, (Highland) with 28 violations of
mandatory standards and proposing civil penalties of $74,232.00 for the violations. The general
issue before me is whether Highland 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. ·
At hearings held September 17, 2008, in Evansville, Indiana, the parties advised that all
but three-of the charging· documents at issue had been settled. A motion confirming that
settlement was filed post-hearing. Considering the representations and documentation submitted · ·
respect with that settlement, I am able to conclude that the proffered settlement is acceptable
under the criteria set forth in section 11 O(i) of the Act. That settlement will be incorporated in
this decision. The three citations remaining at issue are·addressed below.

30 FMSHRC 1097

Citation Number 6692779
This citation, issued August 14, 2007, alleges a "significant and substantial" violation of
the standard at 30 C.F.R. § 75.400, and charges as follows:
The Getman Construction Tractor, Co. No. 09 had accumulations of oil on the.engine due
to the valve cover gaskets leaking. At the time of discovery, the Getman tractor had
overheated and shut off.
The cited standard provides that "[c)oal dust, including float coal dust deposited on rock
dusted surfaces, loose coal and other com~ustible materials, shall be cleaned up and not be
permitted to accumulate in active wprkings, or on diesel-powered and electric equipment
therein."
At hearings, Highland acknowledged the violation as charged and challenged only the
Secretary's "significant and substantial" and gravity findings and the amount of her proposed
civil penalty. A violation is properly designated as "significant and substantial" if, based on the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will resuJ~ in an injury or illness of a_reasonably serious nature. Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coa/.Co., 6 FMSHRC 1,
3-4.(January 1984), the Commission explained:
In order to establish that a violation of a mandatory standard is significant and substantial
under National Gypsum the Secretary must prove: (1) the underlying violation of a
mandatory safety standard, (2) a discrete safety hazard - - that is, a measure of danger to
safety - - contribµted to by th~ violation, (3) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.

See also Austin Power Co. v. Secretary, 861 ·F.2d.99, 103.-:04 (5th Cir. 1988), ajf'g . ·
9 FMSHRC 4015,2021(December1987) (approving Mathies ·criteria).
.

.

The third element of the Mathies formula requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result in an event in which there is an
injury. U.S. $tee/ Mining Co., 6 FMSHRC 1834, 1836 (August 1984), and also that the ·
likelihood of injury be evaluated in terms of continued normal mining operations. U.S. Steel
Mining Co., Inc., 6 FMSHRC 1573, 1574(July1984); See also Halfway, Inc., 8 FMSHRC 8, 12
(January 1986) and Southern Ohio Coal Co., 13 FMSHRC 912, 916-917 (June 1991).
Since the Secretary has also claimed in these cases that the violations are also "significant
and substantial" because of certain alleged health hazards it is necessary to further evaluate those
claims in light of additional Commission precedent. In this regard the Commission, in Secretary
v. Consolidation Coal Company, 8 FMSHRC 890, 897 (June 1986), affd 824 F.2d 1071 (D.C.
Cir. 1987), applied the Mathies test to a violation of a mandatory health standard. Consolidation

30 FMSHRC 1098

Coal Company had received a citation for a violation of .3 0 C.F.R. § 70.100 (a) which requires
that the average concentration of respirable dust in the mine ,atmosphere during each shift to
which a miner.is exposed be maintained at or below 2.0 milligrams of respirable dust per cubic
meter of air as mea~ured with an approved sampling device. In that case sampling results
showed that miners had been exposed to an average dust concentration of 4.1 milligrams per
cubic meter of air. The Commission held that the violation was "significant and substantial"
concluding that any exposure above the 2.0 milligrams per cubic meter designated occupational
sampling would satisfy the second element of the !'Jathies "significant and substantial" test and
that therefore the violation posed a measure of danger to health. The Commission also found
that the~e was a reasonable likelihood that the health hazard contributed to would result in an
illness Id. 899. The Commission recognized that the development and progress ofrespiratory
diseases are due to the cumulative doses of dust a miner inhales, and that proof of a single
incident of overexposure does not, by itself, conclusively establish a .reasonable likelihood that
respirable dust will result. Id. 898. The Commission recognized that, although overexposure to
respirable .d ust clearly can result in chronic bronchitis and preunocomosis, the effect of the health
hazards associated with overexposure to respirable dust usually do not cause immediate
symptoms, and that assessing the precise contribution that a particular overexposure will make to
the development ofrespiratory disease is not possible.
Because of these considerations, the Commission stated that "[g]iven the nature of the
health hazard at issue, the potentially devastating consequences for affected miners, and the
strong concern expressed by Congress for eliminating respiratory illnesses in miners, we hold
that if the.Secretary proves an overexposure to respirable dust in violatio-q of§ 70. lOO(a), ba~ed
upon designated occupational sampl~s, has occurred, a presumption arises.that the third element
of the "significant and substantial" test - - a reasonable .likelihood that the health hazard
contribute or will result in an illness - - has been established Id. at 899.
The fourth element of the "significant and substantial" test i.e., whether a reasonable
likelihood that .the illness in question will be of a reasonably serious .nature, was not seriously
disputed. The Commission.in the. Consolidation Coal (Consol) case held that when the Secretary
proves that an overexposure in violation of30 C.F.R. § 70.lOO(a), based upon designated
occupation s~ples, a presumption_arises that the violation is "significant and substanticil".
Significantly, however, the Commission also held that the operator may rebut this presumption
by establishing that miners in the designated occupation were not exposed to the hazard
presented by the excessive concentration of respirable dust.
Anthony Fazzolare, an inspector for the Department of Labor's Mine Safety and Health
Administration (MSHA), and an experienced underground coal miner and mechanic, testified
that on August 14, 2007, during an inspection of the subject mine, he found the cited tractor shut
down with an ac.c umulation of motor oil on the engine. According to Fazzolare, the oil came
from leakage ip. the valve cover gasket. There is no dispute that there was oil leakage and that
the cited tractor overheated and had shut down.

30 FMSHRC 1099

Fazzolare testified, in support of his "significant and substantial" findings, that ·he was
"concerned that the oil was going to 'ignite due to the fact that the engine had overheated" (Tr.
20). He further testified that he "thought" that the vehicle operator would suffer a "lost time
injury because oil has been proven to be a cancer causing agent. If he's breathing oil fumes - oil smoke in his lungs" (Tr. 20-21). ·
On cross exari:tination, the inspector acknowledged that although the cited tractor had shut
down from overheating, the oil did not ignite, burn or smoke. He further acknowledged _that he
did not measure the amount of oil or the temperature of that oil or the temperature of the engine.
He testified, and it is undisputed, that the engine had an automatic shut down device triggered at
a certain temperature and that he had no knowledge of any defoct in that device.

James Allen, Highland's Mine Safety Manager with more than 35 years of undergroUn:d
mining experience, testified, without contradiction, that the cited tractor uses Conoco 10W30
motor oil which has a flash point (ignition temperature) of383 degrees Fahrenheit (See Exhibit
R-1). Allen also checked the temperature of the engine block at various points after the tractor
had pulled a supply train and found the highest temperature to be 150 degrees Fahrenheit He
further observed that the tractor was equipped with a Murphy high-teniperature-heat-sensor-shutoff switch which cannot be set at temperatures above 250 degrees Fahrenheit. It is not disputed
that if the Murphy sensor is broken or removed, the engine will not operate.
Highland safety department employee, Tommy Watkins, accompanied Inspector ·
Fazzolare on the subject inspection. He too observed a couple of streams of oil leaking from the
engine and noted .fuat the oil had poured into ·a tray below the engine. He also noted that the oil
was not smoking or on fire and that the engine had shut down from overheating. Watkins also
observed that the subject tractor was equipped with a dry chemical fire ·s uppression system.
Based on this -essentially undisputed evidence it is clear that there was no rea8onable
likelihood that the cited oil could have been ignited. Inspector Fazzalore identified heat from the
tractor's engine as the sole ignition source that could potentially ignite the oil. The undisputed
evidence establishes however that the engine oil used in the subject tractor had a minimum flash
point or ignition temperature of383 degrees Fahrenheit. The additional undisputed evidence
establishes that the cited tractor had a heat sensor shutdown switch which monitors the ·
temperature of the engine block, and which has a maximum setting of250 degrees Fahrenheit.
Furthermore, if the switch is disconnected or not functioning, the engine will not run; Thus it is
not likely that the cited engine oil could reach its ignition temperature. It is further noted that the
cited tractor had a functioning dry chemical fire suppression system which would be triggered in
the event of any fire on the tractor.

I further find that even assuming, arguendo, that ·the oil could ignite, the Secretary has
failed to sustain her burden of proving that anyone was exposed to smoke. In the Consol case the
Commission required actual exposure to violative amounts of respirable coal dust in order to
create a "significant and substantial" violation. Moreover the Secretary failed to prove that even
30 FMSHRC 1100

future exposure of the vehicle operator to smoke from an ignition of oil would inflict him with
cancer. Inspector Fazzalore's bare assertion that "oil has been proven to be a cancer causing
agent'' is simply not sufficient in this regard. He.is admittedly not a medical expert (Tr. 15) and
even if he was, a bare assertion resting solely on the authority of even an expert is insufficient.
See General Electric .Co. v. Joiner, 118 S. Ct. 512 (1997).
Under the circumstances I find the violation to also be of low to moderate gravity.
Citation Number 6695241

This citation also.alleges a "significant and substantial" violation of the standard at 30
C.F.R. § 75.400 and charges as follows:
The operator has allowed hydraulic oil to accumulate in the Starnler Feeder, Co. No. 01,
located in MMU 061-0, 7th Panel North off of the Main West Panel. The oil was located
under and nea~. the Podge Coupling. The feeder was running at the time of discovery.
As with the prior citation, Highland does not dispute the violation and challenges only the
"significant and substantial" and gravity findings and the arnouµt of the proposed civil penalties.
According to Inspector Fazzolare, during his inspection of the subject mine on August 14; 2007,
there were accumulations of hydraulic oil under and near the Dodge Coupling on the Number 1
Starnler Feeder. There is no dispute that the feeder was operating at the time of this inspection
and that the Dodge Coupling was the heat source of concern. The inspector's testimony that the
violation was "significant and substantial" is that he ''was concerned with heat building up in [the
Dodge Coupling] <l;ue.to the movement of the two rotating shafts and the k>w reduced air flow in
that area'' (Tr. 65),. He was,, more particularly, concerned with smoke inhalation by the ram car
operator .i f the oil was to ignite (Tr. 65).
Under cross examination, Fazzolare testified that he was concerned about the possible .
combustion of the hydraulic oil. He acknowledged, however, that he did not measure the amount
of hydrauli~ .oil present, he could not estimate how far the oil was located below the Dodge
Coupling and that he did not measure the temperature of the oil,.the feeder or .t he Dodge
Coupling. Indeed the inspector did not even determine whether the feeder was "hot" to the
touch. He further admitted that he did not know whether the oil was anywhere near its ignition
temperature.
Highland's safety manager, James Allen, testified without contradiction that the cited
feeder utilizes Conoco 320 gear oil (a hydraulic oil) which has. a flash point at 450 degrees
Fahrenheit and "typically" a flash point of 490 degrees Fahrenheit (Exhibit R-2, page 4); Allen
measured the temperatitre of the cited feeder on September 10, 2008, after it.had been operating
for about three hours and found a maximum temperature of 169 degrees Fahrenheit 15 feet from
the location of the oil. He took four readings at the Dodge Coupling ranging from 73 degrees
Fahrenheit to 110 degrees Fahrenheit. He testified without contradiction th~t the plate on which

30FMSHRC 1101

the oil was found was located some 14 to 18 inches below the coupling.
Highland employee Tommy Watkins accompanied Fazzolare on his inspection. He noted
that the cited feeder had been operating for ·about 2 Yz hours by the time the citation was issued
and that it was not hot. He testified that the only oil he observed lay on the clay mine bottom
three feet below the feeder. The oil was not hot, smoking or on fire.
Considering, in particular, the location of the hydraulic oil somel4 to 18 inches below the
heat-generating Dodge Coupling, the ignition temperature of hydraulic oil and the temperature of
the Dodge Coupling (well below that of the ignition point of the hydraulic oil), I do not find that
the Secretary has met her burden of proving that the violation was "significant an<l'substaritial" or
of high gravity.
·
·

Citation Number 6695248
The captioned citation alleges a "significant and substantial" violation of the standard at
30 C.F.R. § 75.325(f)(3) and charges as follows:
The operator failed to provide the quantity of air, 3500 cfin, required by the engine
approval plate #07-ENA05001 on the Wallace Lube truck located at cross-cut #158 on
the Main West supply road. No movement was noticeable using a chemiCal s~oke tube.
•.

The cited standard provides as follows:
The minimum ventilating air quantity for an individual unit of diesel-powered equipment
being:operating shall be at least that specified on the approval plate for that equipment.
Such air quantity shall be maintained-... (3) in any entry where the equipment is being ··
operated out-by the section loading point and areas of the mine developed on or after April

25, 1997...

,. "

.

The violation charged herein is undisputed. Highland challenges only the "significant and
substantial" and gravity findings and the amount of proposed civil penalty. It is undisputed·that
the required ventilation of 3,500 cubic.feet per minute of ventilating air was not present at the
cited Wallace Lube Truck when found at cross-cut number 158 on the main west supply road and
that Inspector Fazzolare was unable to detect any air movement with his anemometer or by' the
release of chemical smoke.
Fazzolare based his "significant and substantial" findings on the lube truck operator's
potential exposure to diesel ''particulate" material emanating from the lube truck exhaust system.
He identified the hazardous '1'articulates" a8 carbon monoxide (CO) and nitrogen dioxide (N02)
gases. Fazzolare testified in this regard as follows:
"[d]ue to the reports that I've read indicates [sic] that the diesel particulates have been

30 FMSHRC 1102

determined to be cancer causing agents" (Tr. 117).
As previously noted, however, the Secretary concedes that Fazzalore is not a me.d ical
expert qualified to render such an opinion (Tr. 116). In addition, although he had with him a
"spotter'' used for the detec.tion of these and other gases he detected no carbon monoxide or.
nitrogen dioxide in the surrounding atmosphere.
In defense, Highland cites the daily reports of its Wallace diesel trucks on the day of the
citation and for the two preceding days. i.e. August 20 through August 22, 2007. These reports
show no emissions above the stipulated MSHA established threshold limits of25 parts per million
of carbon monoxide or three·parts per million of nitrogen dioxide.

In asserting that the violation was "significant and substantial" and of high gravity, the
Secretary argues that the potential emissions of carbon monoxide and nitrogen dioxide from the
cited diesel lube truck are comparable to the existence of the violative respirable coal dust found
in the Consol case. The instant case can be clearly distinguished from the Consol case, however,
in that no carbon monoxide or nitrogen dioxide, the purported cancer causing agents, were
detected herein. Moreover, based upon the undisputed records of the Wallace diesel trucks, none
were, in any event, emitting carbon monoxide or nitrogen dioxide above the threshold limit values
established by MSHA. The Secretary has failed to establish in this case that any violative
emissions were present at the time the citation was issued. Accordingly the violation charged
herein was neither "significant and substantial" nor of high gravity.
Civil Penalties
Under Section 11 O(i) of the Act, the Commission and its judges must consider the
following factors in assessing a civil penalty: the history of violations, the negligence of the
operator in committing the violation, the size of the operator, the gravity of the violation, whether
the violation was abated in good faith and whether the penalties would affect the operator's ability
to continue in business. The record shows that the subject mine is a large mine and has a
significant history of violations. There is no dispute that the violative conditions herein were
abated in a timely manner and there is no evidence that the penalties imposed herein would affect
the operators ability to continue in business. The reduced gravity findings have previously been
discussed and the moderate negligence findings have not been challenged by the operator. Under
the circumstances, I find that penalties of $300.00 for the violation found in Citation Number
6692779, $300.00 for the violation found in Citation Number 695241 and $200.00 for the
violation found in Citation Number 6695248, are appropriate.

30 FMSHRC 1103

ORDER
Citation numbers 6692779; 6695241 and 6695248 are affirtned without "significant and
substantial" findings. Considering the penalties assessed for the three violations at issue herein in
conjunction with the amount approved in settlement of the remaining violations at issue herein, it is
hereby ordered that Respondent pay penalties of$25,376.00 within 40 days of the date of this order.

Distribution: (Certified Mail)

Gary Melick
Administrative Law Juqge
(202) 434-9977

--:·.

Jennifer D. Booth, Esq., U.S. Departinent of Labor, Mine Safety and Health Admirr, 618 Church
Street, Suite 230, Nashville, TN 37219
Michael T. Cimino, Esq., Jackson Kelly PLLC, 1600 Laidley Tower, P.O. Box 553, Charleston;
WV 25322

..

/lh

.

30 FMSHRC 1104

"

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

November 17, 2008
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 2008-267
A.C. No. 15-19097-130857

V.

Mine #1

PROCESS ENERGY,
Respondent

DECISION
Appearances:

Before:

.. Jennifer D. Booth, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Petitioner;
Carol Ann Marunich, Esq., Dinsmore & Shohl LLP,.
Morgantown, West Virginia, for the Respondent.
Judge Feldman

. This single citation .civil penalty proceeding concerns a Petition for Assessment of
Civil Penalty filed pursuant to section.l lO(a) of the Federal Mine Safety and Health Act of 1977 ·
(the Mine Act), as amended, 30 U.S.C. § 820(a), by the Secretary of Labor (the Secretary),
against the respondent, Process Energy. The petition seeks to impose a civil penalty of $585.00
for an alleged violation of the Secretary's mandatory safety standard in 30 C.F.R. § 77.400(a)
governing guarding.of mechanical equipment located at surface locations of underground
coal mines.
At the time Citation No. 6655616 was issued on September 17, 2007, Process Energy
was developing its No. l Mine located in Pi.ke County, Kentucky. The cited condition concerns a
four inch piece of steel welded to, and protruding from, an unguarded side discharge roller shaft.
(Gov. Ex. 1). The steel appendage serves to engage a clutch to prevent the backwards slippage of
the belt in the event of a loss of power. The unguarded shaft is not located on the travel side of
the belt structure. Rather, it is located on the offside of the conveyor, in close proximity to the
highwall, an area infrequently traveled and only accessible by a crossover constructed over the
beltline. Tiie cited violative condition was designated as significant and substantial (S&S) in

30 FMSHRC 1105

nature. 1 At trial, counsel for Process Energy stipulated to the fact of the violation. (Tr. 81 ). The
remaining issues are whether the violation was properly designated as significant and substantial,
and the appropriate civil penalty to be imposed.
This.matter was heard on September 9, 2008, in Pikeville, Kentucky. At the culmination
of the hearing I advised the parties that I would defer my ruling pending post-hearing briefs, or,
issue a bench decision if the parties elected to waive their right to file post-hearing briefS.
If the parties waived the filing of briefs in favor of a bench decision, they would be required to
submit written stipulations of fact based on the uncontested testimony. The parties elected to
submit written stipulations of fact and to waive post-hearing briefs. (Tr. 157-59). The parties'
stipulations of fact was received on November 7, 2008, at which time the record was closed.
This decision contains a summary of the stipulated facts, as well as the edited bench decision that
is supplemented with pertinent case law.

I. Stipulations of Fact
On September 17, 2007, Process Energy was in the process of developing a slope on
an eight percent grade for the descent into·the coal mine. Their intent was to descend inby
2,000 feet. Process Energy had advanced approximately 1,500 feet at the time the citation was
issued. Advancement underground was accomplished by transporting the extracted rock and
debris on a belt conveyor to the:surface. ·. · ·._:
On the surface, at the end of the beltline was the discharge roller in question.
On the offside of the belt drive was a starter box that was located approximately nine to ten feet
from the belt, and approximately 12 to 15 feet from the discharge draft. A highwall was 'next to
the offside of the belt. There was a crossover from the travelway side of the belt that mirier~ used
to traverse over the belt to access the starter box area. (Gov. Ex. 4).
The tinguarded discharge roller was suspended five to seven feet above the ground
on the offside of the belt. There was a truck dump located at the top of the slope approximately
20 to 30 feet from the discharge roller. (Gov. Ex. 4). The extracted material that was carried
from underground up the slope on the conveyor accumulated as it fell off of the belt to the
ground at the discharge roller. The accumulated debris was gathered and removed by a front-end
loader operator, using the highwall as a backstop to load the rock into the shovel. The material
was loaded in dump trucks for removal from the site.

1

Generally speaking, a violation is S&S if it is reasonably likely that the hazard
contributed to by the violation will result in an accident causing serious injury. Cement Division,
National Gypsum, 3 FMSHRC 822, 825 (April 1981).
30 FMSHRC 1106

The only disagreement between the parties is the distance from t.he discharge roller to the
highwall. The issuing Mine Safety and Health Administration (MSHA) Inspector recalled
that the distance was approximately three to four feet. Process .Energy's chiefelectrician testified
the clearance between the highwall and the discharge roller was approximately one foot. .
The electrician recalled that he had to lie on the belt to access the roller to install a guard b.ecause
of a lack of clearance between the belt structure and the highwall. What is not in djspute is that
the relatively narrow area between the cited discharge roller and the highwall was not a
travelway, or otherwise used by miners to walk to the truck dump or any other destination.

II. Pertinent Penalty Criteria
The bench decision applied the statutory civil penalty criteria in section 11 O(i)
of the Act, 30 U.S.C. § 820(i), to determine the appropriate civil penalty to be assessed.
In determining the appropriate civil penalty, section 1 lO(i) provides, in pertinent part:
the Commission shall consider the operator's history of previous violations, the
appropriateness of such penalty to the size of the business of the operator charged,
whether the operator was negligent, the effect on the operator's ability to continue
in business, the gravity of the violation, and the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after notification of a
violation.
The parties stipulated that Process Energy is a mine operator that is subject to the
jurisdiction of the Mine Act. It is not contended that the proposed penalty will affect
Process Energy's ongoing business operations, and Process Energy promptly abated the cited
violation. It has neither been contended nor shown that Process Energy's history ofviolatioris is
an aggravating factor in determining the appropriate civil penalty to be assessed in this
proceeding. The remaining civil penalty criteria regarding gravity and negligence will be
addressed in the disposition of this case.

III. Relevant Case Law
Significant and Substantial
The bench decision applied the Commission's standards with respect to what constitutes
a significant and substantial (S&S) violation. A violation is properly designated as S&S· in
nature if, based on the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to by the violation will result in an injury or an
illness of a,reasonably serious nature. Cement Division, National Gypsum, supra, at 825.
In Mathies Coal Co.~ 6 FMSHRC 1(January1984), the Commission explained:

30FMSHRC 1107

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 likelihoo~ that the hazard contributed to [by the violation] will ·
result in an injury; arid (4) a reasonable likelihood that the injury in question will
be of a reasonably serious nature.
6 FMSHRC at 3-4. See also Austin Power Co. v. Secretary, 861F.2d99, 104-05 (5th Cir. 1988),
affg 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).

In United States Steel Mining Co., Inc., the Commission explained its Mathies criteria as
follows:
We have explained further that the third element of the Mathies formula ''requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." U.S. Steel Mining Co., Inc.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(l ), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U.S. Steel ·
Mining Company Co., Inc., 6 FMSHRC 1866, 1868 (August 1984).
7 FMSHRC 1125, 1129 (August 1985) (emphasis in original).
The Commission subsequently reasserted its prior determinations that as part of any
"S&S" finding, the Secretary must prove the reasonable likelihood of an injury occurring as a
result of the hazard contributed to by the cited violative condition or practice. Peabody Coal
Company, 17 FMSHRC 508 (April 1995); Jim Walter Resources, Inc., 18 FMSHRC 508 .
(April 1996).

IV. Further Findines and Conclusions
The fo l1owing is a summary of the bench decision, with editorial additions including
supporting case law, that was issued upon completion of the relevant testimony:
Process Energy has stipulated to the fact of the violation. Thus, the remaining issues
are whether the cited guarding violation was properly designated as significant and substantial
and the appropriate civil penalty. The Secretary proposes a civil penalty of $585.00 for
Citation No. 6655616. Determining the appropriate civil penalty requites determining the
degrees of gravity and negligence associated with the subject violation.
·

30 FMSHRC 1108

Section 77.400(a) states· that: "Gears; sprockets; chains; drive heads; tail; andtakeup
pulleys; flywheels; couplings; shafts; saw blades; fan inlets; and similar exposed moving
machine parts which may be contacted by persons, and which may cause injury to persons shall
be guarded." 30 C.F.R. § 77.400(a).
The controlling case on guarding violations is the Commission's decision in Thompson
Brothers Coal Co., 6 FMSHRC 2094 (Sept. 1984). The Commission stated:
We find that the most logical construction of the [guarding] standard is that it
imports the concepts ofreasonable possibility of contact and injury, including
contact stemming from inadvertent stumbling or falling, momentary inattention, ·
or ordinary human carelessness. In related contexts, we have emphasized that the
constructions of mandatory safety standards involving miners' behavior cannot
ignore the vagaries of human conduct. See, e.g., Great Western Electric, 5
FMSHRC 840, 842(May1983); Lone Star Industries, Inc., 3 FMSHRC 2526,
2531 (November 1981). Applying this test requires taking into consideration all
relevant exposure and injury variables, e.g., accessibility of the machine parts,
work areas, ingress and egress, work duties, and as noted, the vagaries of human
conduct. Under this approach, citations for inadequate guarding will be resolved
on a case-by-basis.
6 FMSHRC at 2097.
Resolving the issue of significant and substantial requires determining whether it is
reasonably likely that this unguarded shaft will result in an event, i.e., inadvertent contact,
resulting in injuries of a serious nature. Undoubtedly, accidental contact could reasonably cause
serious injury or death. However, the dispositive issue is the likelihood of such inadvertent
contact. There is a positive correlation between the likelihood of contact and the frequency of
exposure to unguarded pinch points. As the Commission noted in Thompson, such factors as
accessability, ingress and egress, and'work duties are relevant considerations.
Regarding accessibility, the area where the unguarded shaft is located is only accessible
by traversing a crossover. In addition, the cited shaft is on the offside of the belt rather than on
the travelway side. Finally, the unguarded shaft is located in a comer where the highwall's close
proximity to the belt structure precludes travel. (Gov. Ex. 4).
With regard to ingress and egress, I credit the testimony of Process Energy's chief
electrician that the clearance between the shaft and the highwall was only one foot, rather than
the distance of three to four feet recalled by the issuing mine inspector. I reach this conclusion
because of the chief electrician's familiarity with the mine conditions, and because the inspector ·
did not make any contemporaneous notations of the clearance distance in his inspection notes or
in Citation No. 6655616. In addition, the narrow clearance between the shaft and the highwall
prevents foot travel that would pose a significant risk of exposure to contact.
30 FMSHRC 1109

Finally, the nature of the front end loader operator's work duties, using a loader-to
remove debris from under a belt structure that is suspended as high as seven feet above the
ground, diminishes the likelihood of inadvertent contact. In short, consistent with Thompson,
the Secretary has failed to satisfy her burden of demonstrating, by a preponderance of the
evidence, that the hazard posed by this condition creates a reasonable likelihood that serious
injury will occur. Thus, the S&S designation in Citation No. 6655616 shall be deleted..
Given the narrow clearance between the shaft and the highwall, the relative
inaccessibility of the shaft due to its remote location and elevation, and the non-S&S nature of
the violation, I find that the violation is attributable to no more than a moderate degree of
negligence. The violation affects one person. The degree of gravity is moderate in that,
although there is a potential for serious injury, an injury causing event is not·reasonably likely.
Consistent with the statutory civil penalty criteria, a penalty of $100.00 shall be assessed for
Citation No. 6655616. {Tr. 159-68).

ORDER.

In view of the above, IT IS ORDERED that Citation No. 6655616 IS MODIF1ED by
deleting the significant and substantial designation.

IT !~FURTHER ORDERED that Process Energy shall pay a civil penalty of $1 OO·.OO
in satisfaction of Citation No. 6655616.
Payment-is to b~ made to The Mine Safety and Health Administration within 40 days
of the da~ of this Decision. Upon timely receipt of payment, this civil penalty proceeding .
IS DISMISSED.

Jerold Feldman
Administrative Law Judge
Distribution:
Jennifer D. ~ooth, Esq., Office ofthe Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN37219-2456
Carol Ann Marunich, Esq., Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Suite 310,
Morgantown, WV 26501
/sr

30 FMSHRC 1110

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

November 26, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 2007-350-M
A.C. No. 40-00811-122454

V.

SANGRAV.L COMPANY, INC.,
Respondent

Sangravl Company, Inc.

DECISION
Appearances: Donna E. Sonner, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, Robert A Simms, Conference and .Litigation Representative,
and Kirby G. Smith, Conference and Litigation Representative, Mine Safety and
Health Administration, U.S. Department of Labor, Madisonville, Kentucky, for · ·
Petitioner;
John B. Herbert, President, Sangravl Company, Inc., New Johnsonville, Tennessee,
pro se, for Respondent.
Before:

Judge Hodgdon

This case is before me on a Petition for Assessment of Civil Penalty brought by the
Secretary of Labor, ·a cting through her Mi.he Safety and Health Administration (MSHA), against
Sangravl Company; Inc., pursuant to section 105 of the Federal Mine Safety and Health Act of
1977, as amended, 30 U.S.C. § 815. The petition alleges five violations of the·secretary's
mandatory health and safety standards and seeks a penalty of$4,097.00. A hearing was held in
Nashville, Tennessee. For the reasons set forth below, I vacate one citation, affirm the four
remaining citations, while modifying three of them, and assess a penalty of $1,626.00.

.·

Backeround

Sangravl Company, Inc., operates a sand and gravel plant on the banks of the Tennessee ·
River near New Johnsonville, Tennessee. It was inspected by MSHA Inspector Paul Scott on
March 19, 2007. The plant was not running on the day it was inspected due to a shortage of sand.
(Tr. 17)
On the day of the inspection four employees were working at the plant. (Tr. 18.) One of
the employees operates a large crane with a "clam shell" bucket used to dig for gravel and sand as
well as load it on the truck. (Tr. 18.) Another employee is the plant operator, who is situated at
the top of the plant. · (Tr. 18.) The·remaining employees are a truck driver and a front-end
30 FMSHRC 1111

loader/operator who is responsible for loading trucks. and other miscellaneous tasks. (Tr. 18-19.)
Mr. Parnell is the foreman at Sangravl. (Tr. 19.)

Findings of Facts and Conclusions of Law
Citation No. 6097267
The citation alleges a violation of section 56.14107(a) of the Secretary's regulations,
30 C.F.R. § 56.14107(a). The "Condition or Practice" alleged to result in this violation was stated
as: "A return roller located on the No. 9 conveyor in the screening plant was not guarded. The
moving parts were approximately 4 to 5 feet above ground level and the roller was 4 to 5 inches in
diameter." Section 56.14107(a) requires that: "Moving machine parts.shall be guarded to protect
persons from contacting gears, sprockets, chains, drive, head, tail, and take-up pulleys, flywheels,
couplings, shafts, fan blades, and similar moving parts that can cause injury."
On his March 19, 2007, inspection, Inspector Scott obserV'ed a return roller on the No. 9
conveyo~ that was not properly guarded. (Tr. 19.) As shown in the .photograph taken by the
inspe~tor,.the return roller was protected by a partial guard on each side of the conveyor, but the
bottom portion of the roller was unguarded, (Govt Ex. 3.) The inspector believed that miners
working in the area, or who were in the area to clean or to fix the roller, could have a limb or
loose clothing become entangled in the _roller causing serious injury. (Tr. 20-2L) · ·
John Herbert, President of Sangravl, stated that the existing guarding had been approved
by a previous inspector. (Tr. 67.) He further testified that ''we don't clean up or work on or go
under the plant while it's running." (Tr. 68.)
The chance of a miner inadvertently coming in contact with the roller, while not
impossible, was extremely un,likely. There is no evidence that the roller was worked on while it
was operating. As previously noted, there were only four miners in the entire operation.. Each had
a specific job and not one was located near the roller. The chances of one of them checking the
roller, doing a workplace inspection while it was operating, or just walking by, falling an:d coming
in contact with the roller were remote at best.
Moreover, the operator did not have notice that the roller was not properly guarded. The
Commission has held, with respect to notice, that in determining whether a broadly worded
standard that is intended to be applied to many factual situations, applies to a specific situation, "it is
appropriate to evaluate the evidence in light of what a 'reasonably prudent person, familiar with the
mining industry and the protective purpose of the standard, would have provided in order to meet
the·protection intended by the standard.'" Ideal Cement Co., 12 FMSHRC 2409, 2415 (Nov. 1990)
(citations omitted).
The evidence supports the company's assertion that the previo_u s inspector had approved
the guard. The negligence in this citation was modified from "high" to "moderate" because .
"[t]hey had been toid by the previous inspector how to guard this and they complied." (Govt. Ex.
30 FMSHRC 1112

2 at 2.) Thus, the operator guarded the roller in the.manner advised by the inspector, a person
familiar with the mining industry and the protective purpose of the standard, and until he was
advised by the new inspector that additional guarding was needed, there was no way the operator
knew, or should have known, that his guarding was inadequate.
To abate the violation, the operator added additional guarding to the roller as required by .
Inspector Scott. Nonetheless, in view of the operator's lack of notice, I will vacate the citation. ·
Citation No. 6097268
This citation also alleges a violation of section 56.14107(a). Th.e "Condition or Practice"
alleged to result in this violation was stated as: "The south side portion of the No. 8 conveyor head
pulley was not guarded. The 24 inch diameter roller was approximately 4 to 5 feet above ground
level. Bolts holding the bushing in place were protruding from the pulley. The concrete had loose
gravel near the moving parts." (Govt. Ex. 5.)

..
Inspector Scott testified that he observed that a portion of a pulley on the No. 8 conveyor
had an exposed head roller, which was about 24 inches in diameter. (Tr. 26.) He said that the
exposed parts could be easily contacted by those walking by. (Tr. 26.) . In addition, there were
bolts which held the flange and axl.e that were protruding. (Tr. 26.)
Her.bert did not dispute that
there was a violation, rather he disputed.the significant and substantial designation. (Tr. 67-68.)
Consequently, I find that Sangravl violated section 56.14107(a) as alleged.

Mr:

Significant and Substantial
The inspector found this violation to be "significant and substantial." A "significant and
substantial" (S&S) violation is described in section 104(d)(l) of the Act, 30 U.S.C. § 814(d)(l), as .
a violation "of such nature as could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard." A violation is properly designated S&S "if,
based upon the particular facts surrounding,that violation, there exists a reasonable lik~li.hood that
the hazard contributed to will result in an injury or illness of a reasonably serious nature.'' Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981)

Ill Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission enumer~ted fom criteria· .·
that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d
133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), -.
aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). .
Evaluation of the criteria is made in terms of"continued normal mming operations." U.S. Steel
Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a particular
violation is S&S must be based on the particular facts surrounding the violation. Texasgu.lf, Inc.,
10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
.

.

.

In order to prove that a violation is S&S, the Secretary must establish: (1) a violation of.a .
safety standard; (2) a distinct .safety hazard contributed to by the violation; (3) a reasonable

30 FMSHRC 1113

likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury will be of a reasonably serious nature. Mathies, 6 FMSHR.C at 3-4.
While Inspector Scott speculated that miners would be in the area of the No. 8 conveyor to
observe for proper operation of the equipment, he did not testify that it was in the regular work area
of any of the four employees. (Tr. 28.) Mr. Herbert testified that employees do not .frequent this
area ~hen the plant is running'. (Tr. 68:) When the plant is running water flows over the top of this
equipment. (Tr. 67.) In an effort to stay dry, employees actively avoid the equipment. (Tr. 68.)
Based on this testimony, I conclude that employees will infrequently be found in proximity to the
No. 8 conveyor head pulley. Therefore, it is unlikely that a miner would contact the machine parts.
The violation is not reasonably likely to cause injury. Accordingly, the violation is not "significant
and substantial."
Citation No. 6097269
This citation alleges a violation of section 56.14100(b) of the Secretary's regulations, 30
C.F.R. § 56._14100(b). Th~ "Condition or Practice" alleged to re~ult in this violation was stated as:

An unsafe condition exists at the screening tower in the plant.
Ah eight inch steel "H" beam was badly deteriorated with rust. This
beam is part of the over~all support system for the tower. The tail
sections for two conveyors were supported by the beam. Employees
are in the plant regularly to perform service, maintenance and clean
up as needed.
(Govt. Ex. 8.) Section 56.14100(b) requires that: "Defects on any equipment, machinery, and tools
that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to
persons." ·
Inspe9tor Scott testified that on the day of the insp~tio~ he observed that the H beam had
accumulated significant rusf in the area between the two lateral runners. (Tr. 38-39.) The berun is
about 15 feet above the ground. (Tr. 43.) When whole, the web is about 3/8 inches deep and
prevents the beam from going sideways or sagging. (Tr. 38- 39,) A 10 to 12 foot long section of
the webbing was missing entirely. (Tr. 38:) Inspector Scott speculated the beam was probably in
this state for Six months, given the wet conditions. (Tr. 45.) The violative condition was visible,
although the mine had not been issued a: citation for the beam in the past. (Tr.·44.) It was abated
the next day through replacing the be~ with two pieces of channel (two types of metal bolted
together). (Tr. 45.) I find that the condition bf the beam was in violation of the regulation.

Significant and Substantial
Inspector Scott testified that if the beam continued to rust it could fall. (Tr. 41.) The plant
operator worked from a control house, located approximately 15 feet above the H beam and a few
feet to the south. (Tr. 40.) Inspector Scott testified that the area would collapse if the beam failed.
30 FMSHRC 1114 . .

(Tr. 40.) There. was an electrical box next to the control house. (Tr. 41.) The collapse of the
control house could result in an electrical hazard. (Tr. 41.) The plant operator would be the only
person affected. (Tr. 43.) Additionally, the inspector theorized that a collapsing beam could injure
an employee who happened to be walking under it when it collapsed. (Tr. 40.)
Mr. Herbert testified that the beam was not necessary to support ~he control plant. (Tr. 68.)
The Secretary did not offer any evidence to the contrary. Moreover, the redundance of the beam
was demonstrated when it was
for no
.additional measures were taken to secure the
. replaced?.
.
.
control house. {Tr. 68.) . The replacement of the beam did not result in the toppling of the control .
house. Mr. Herbert's assertion that additional support was not necessary during the replacement of
the beam gives credence to his argument that the beam was not supportive of the control house. I
find that it is unlikely that the violative condition would result in the collapse of the control house
and the creation of an electrical hazard. Even, less likely is the striking of an employee, who did
not work in the area, ·by a falling beam. Therefore, I conclude that the violation was not
"significant and substantial."
· ·
,
Citation No. 6097270.
The citatio~ alleges a v.iolation of section 56.14107(a) of the Secretaiy• s regulations. The
"Condition or Practice" alleged to result in this violation was stated as: .·
The tail pulley guard on the north side of the conveyor
feeding the twin screens in the plant was not covering all the moving
parts. The tail pulley was approximately 1 to 2 feet above the walk
way and was 14 to 16 inches in diameter. The pinch point between
the pulley a~d the conveyor belt could be contacted.
(Govt. Ex. 10.)
mspectoi S~ott observe~ an unguard~d tail pulley in the screening plant. {Tr. 48.) A .partial
guard was locat~d between the walkWay and the Jail pulley. (Tr. 50.) However, the inspector
testified that: "There is enough room between this guard and the belt for a person, their hand, to go
in, down to the very bottom of this r()ller, and be pulled into this . . .. " (Tr. 50.) Inspector Scott ..
determined that the violatfon existed for a minirllum of four to six shifts. (Tr. 53.) The screen bar
mesh in the lo:Wer left comer and upper section had been removed, and the exposed parts were
covered with sand dust. (Tr. 53.) The condition was abated when the moving parts were covered
with screen wire. (Tr. 54.) I find that the company violated the regulation as alleged.
.

Significant

and ·substantial

.

The main operator passes by this condition on the way t() work each day.. (Tr.. 49.)
Inspector Scott testified that enough room exits for a person to get stuck in the roller. (Tr. 50.) He
hypothesized that if a person was to become stuck in the pinch point, they would be enveloped
around the tail pulley and crushed to death. (Tr. 52.) Inspector Scott testified that tail pulleys,
30 FMSHRC 1115

head pulleys, and return rollers are the biggest killers in concern to moving machine parts. (Tr.
51.)
The Secretary has established that an employee would regUlarly be in the area proximate to
the violative condition since the main operator passes by the tail pulley on a daily basis. The loose
sand and gravel in the area could cause a person to slip. (Tr. 50.) Ifhe slipped on the loose gravel
he could fall into the unguarded portion of the tail pulley. In the context of continued normal
mining operations, it was reasonably likely that the violative condition would contribute to a serious
accident. Accordingly, I find that the violation was "significant and substantial."
Citation No. 6097271
This citation alleges a violation ofsection 56.1°4132(a}ofthe Secretary's regulations, 30
C.F .R. § 56.14132(a). The "Condition or Practice" alleged to result in this violation was stated as:
The automatic reverse-activated signal alann provided on the
Catexpillar front end loader, model 980G, was not maintained. The
alarm would not sound when the reverse gear was used. The operator
· of the loader has an obstructed view to the rear and there is no one
posted to tell him when it is safe to back up. The loader is used to
load customer trucks, move stock piles and other chores as needed.
The work areas are shared with other company equipment; customer
trucks and employees on foot.
·
(Govt. Ex. 14.) Section 56.14132(a) requires that: ''Manually-operated horns or other audible
warning devices provided on self-propelled mobile equipment as a safety feature shall be
maintained in functional condition."
The front-end loader was .located between the shop and the main screet?filg plant ~t the time
it was inspected. (Tr. 59.) Inspector Scott testified that when the operator put the machine in
reverse, the automatic reverse alarm signal.did not work. (Tr. 51;) There was a signal on the .
loader, but it was not operational. (Tr. 51.) This piece of equipment was used all over the plant,
around both employees and customers. (Tr. 57.) On occasion a customer might come in to pickup
a load of sand or gravel accompanied by small children. (Tr. 57.) Ftom his seat, the operator had
an obstructed view to the rear. (Tr. 58.) If the loader ran over someone the injury would be fatal.
(Tr. 61.) The condition was abated When a new back-up alarm was ip.stalled. (Tr. 63.) .
Mr. Herbert does not dispute the violation of section 56.14132(a). Instead, he testified that
the noise of the back-up alarm is so pervasive at the plant that it becomes background rioise. · (Tr.
69.) He speculated that the load operator may not have noticed that the back-up alarm was not.
operating. (Tr. 69.) The citation is affirmed as written.

30 FMSHRC 1116

Civil Penalty Assessment
The Secretary has proposed penalties of $3,379.00 for the four violations being affirmed.
However, it is the judge's independent responsibility to determine the appropriate amount of penalty
in accordance with the six penalty criteria set out in section l lO(i) of the Act, 30 U.S.C. § 820(i).
Sellersburg Stone Co. v. FMSHRC, 736 F .2d 1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18
FMSHRC 481, 483-484 (Apr. 1996).
,.
.

In this connection, I find that the Sangravl is a very small company operating a very small
mine. I further find from the Assessed V\olation History Report that the operator has a poor history
of previous violations. (Govt. Ex. 1.) The parties have stipulated that payment of these penalties
will not adversely affect the company's ability to remain in business and I so find. (Tr. 9-10.) There
is no evidence that the operator did not demonstrate good faith in attempting to abate the violations,
so I find that the company did demonstrate good faith.
Turning to gravity, I find that Citation Nos. 6097268, 6097269 and 6097271 are not very
serious. Citation No. 6097270, however, is a more serious violation that could result in a
significant injury. I agree with the inspector's assessment that the negligence involved in Citation
Nos. 6097269 and 6097271 was "moderate" and "low," respectively. I disagree with his assessment
of Citation Nos. 6097268 and 6097270, finding that in both cases the negligence was only
"moderate."
·t

i>·

Taking ~11 of these factors into consideration, I conclude that the following penalties are
appropriate: (I) Citation No. 6097268, $325.00; (2) Citation No. 6097269, $290.00; (3) Citation
No. 6097270, $725.00; and (4) Citation No. 6097271, $286.00.

Order
In view of the above, Citation No. 6097267 is VACATED; Citation No. 6097271 is
AFFIRMED; Citation No. 6097268 is MODIFIED, by deleting the "significant and substantial"
designation. and reducing the level of negligence from "high" to "moderate," and is AFFIRMED as
modified; Citation No. 6097269 is MODIFIED, by deleting the "significant and substantial"
designation, and is AFFIRMED as modified; and Citation No. 6097270 is MODIFIED, by
reducing the level of negligence from "high" to "moderate," and is AFFIRMED as modified.
Sangravl Company, Inc., is ORDERED TO PAY a civil penalty of $1,626.00 within 30 days of the
date of this decision.

1.&.a1!/:4-

Administrative Law Judge

30 FMSHRC 1117

Distribution:
.'

.

'

'

.

Donna E. Sonner, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite
230, Nashville, TN 37219-2456
John B. Herbert, President; SanGravl Company, Inc, 900 Herbert Road, New Johnsorivill~, TN
37134
/sr

.

'

~

.

' .

. '

••,

...
-: .:. .

·..

· .;

30FMSHRC1118

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

November 26, 2008
SECRETARY OF LABOR, MSHA, on
behalf of PETER J. PHILLIPS,
Complainant
v.

A & S CONSTRUCTION CO.,
Respondent

TEMPORARY REINSTATEMENT
PROCEEDING

Docket No. WEST 2008-1057-DM ·
RM MD 2008-05

Mine ID: 05-04875
Portable Crusher No. 4

Appearances: Thomas A. Paige; Esq., U.S . Department of Labor, Arlington, Virginia,
on behalf of the Complainant
,
Richard P. Ranson, Esq., Ranson & Kane, P.C., Colorado Springs, Colorado,
on behalf of the Respondent
Before:

Judge Barbour

DISSOLUTION OF ORDER OF TEMPORARY ECONOMIC REINSTATEMENT
AND
DISMISSAL OF PROCEEDING
fu this proceeding arising under Section 105(c ), 30 U.S.C. § 815(c), of the Federal Mine
Safety and Health Act of 1977 (Mine Act or Act), 30 U.S.C. § 801, et. seq., the Secretary of
Labor, through her Mine Safety and Health Administration (MSHA) and on behalf of Peter J.
Phillips, applied for the temporary reinstatement of Mr. Phillips, an employee of A&S
Construction Company (A&S). Mr. Phillips was discharged by A&S on September 13, 2007.
On February 11, 2008, Mr. Phillips filed a complaint with MSHA alleging his discharge was
motivated by protected safety complaints. MSHA conducted a preliminary special investigation
of Mr. Phillips' complaint and.determined it was not frivolous. The finding resulted in the
Secretary's temporary reinstatement application. The Commission received the application on
May 22, 2008.
On May 23, 2008, the application was assigned to me. On May 27, 2008, I scheduled the
matter to be heard on June 4, in Pueblo, Colorado. Subsequently, counsels conferred and reached
an agreement to economically reinstate Mr. Phillips. They further agreed a hearing on the
Secretary's application was unnecessary. Therefore, the hearing was canceled, and on June 6,
2006, I ordered Mr. Phillips' economic reinstatement "at the same rate of pay, with the same
benefits, and for the same work period he held prior to his discharge." Order of Temporary ·
Economic Reinstatement. As part of the economic reinstatement, the parties and I agreed the
30 FMSHRC 1119 .

Secretary would promptly investigate Mr. Phillips' underlying 'd iscrimination complaint and
determine whether she would bring a complaint of discrimination on behalf of Mr. Phillips under
section 105(c)(2) of the Act. (A&S was, of course, obligated to pay Mr. Phillips while the
investigation was ongoing.) I requested then counsel for the Secretary, James Crawford, to
advise me periodically of the status of the investigation. Pursuant to my request, on July 2, 2008,
counsel stated a final determination was anticipated "within the next few :weeks.to a month, if not
sooner." Secretary's Update on Merits Determination (Update) 1-2. On August 1, 2008, counsel
stated a final determination "will be made within the next two weeks." Update 1-2. On
September 10, 2008, counsel stated a determination would be made "as soon as possible."
Update 2. Following the September update, Mr. Crawford retired, and the matter was transferred
to Thomas Paige.
On November 10, 2008, the Commission received a notice from Mr. Paige that the
Secretary did not intend to proceed under Section 105(c )(2) of the Act on Mr. Phillips' behalf.
Mr. Paige further stated Mr. Phillips had been notified by letter dated November 3, 2008, of the
Secretary's decision and of his right to file a complaint on his own behalf under Section
105(c)(3). 30 U.S.C. § 815(c)(3). Counsel also stated:
[I]t is the Secretary's position that the ... Order of
Temporary Economic Reinstatement ... remains in
effect until there is a final order of the Commission
disposing of Mr. Phillips's case, and that such order , · ~ ·
cannot be dissolved before that time without violating
the clear language of the statute. The Order of .
Temporary Economic Reinstatement must remain
in effect if Mr. Phillips decides to proceed on his
own behalf. [T]he Secretary ... will oppose any
motion ... [to dismiss] the order of temporary
_[economicJ reinstatement prior.to the date the
complaint is finally disposed of
Notice of the Secretary's Intent Not to Proceed 1-2. Attached to the Secretary's notice
was the November 3 letter to Mr. Phillips in which the Assistant Director ofMSHA's Technical
Compliance and Investigation Office advised Mr. Phillips MSHA had '.' determined that facts
disclosed during the investigation do not constitute a violation of Section 105(c )" and
"[t]herefore, discrimination, within the confines of the Mine Act, did not occur." Id., Exh. A.
1

.

On November 10, the Commission also received a request from.A&S to schedule a
hearing to determine, in view of the Secretary's conclusion Mr. Phillips' termination did not
violate the Act, whether Mr. Phillips' complaint.was frivolously brought and/or whether the
reinstatem~nt proceeding should be dismissed and the order of temporary economic
reinstatement rescinded. Respondent's Request to Set Matter for Hearing [and] Motion to
Dismiss.

30FMSHRC'l120

On November 14, following discussions with counsels and with the agreement of Mr.
Phillips, I scheduled a telephonic oral argument on A&S's request and motion. I stated in part,
"At issue is the effect of the Secretary's Notice of Intent Not to Proceed Under Section 105(c)(2)
of the Act on the ... Order of Temporary Economic Reinstatement." Order Scheduling Oral
Argument. Because of the need for a speedy resolution of the issue,. I advised the parties I would
orally rule on the request and motion and, once I received-the transcript, I would confirm the
ruling in writing. I added, "The written ruling will be the basis for any appeal to the
Commission." Id.
On November 18, 2008, the argument went forward as scheduled. Counsels and Mr.
Phillips participated. At the conclusion of the argument I held as follows:
The fundamental issue before me is the continuing viability of
an order of temporary reinstatement once the Secretary has
decided the facts under[ly]ing ... [a] miner's complaint ...
[do] not constitute a violation of Section 105(d). With all
due respect ... , I disagree with the .Secretary's position
[- as ably argued by her counsel - ] that the [O]rder of Temporary
Economic Reinstatement must remain in effect if Mr. Phillips
decides to proceed on his own behalf.
As I read the Act, the authority to issue an ,order of temporary
reinstatement arises under Section 105(c)(2)[,] [which] states
... [that an] order of temporary reinstatement remains in.effect
"pending final order on the complaint." [In my view] the
complaint referenced in this quote is the miner's complaint as
made to and investigated by the Secretary. [A] ["]final order["]
on the miner's complaint is reached when the Secretary [advises]
the miner[,] as she has done in this proceeding[,] that "Your
complaint of discrimination under Section 105( c) has been
investigated. A careful review of the information gathered
during the investigation has been made . . On the basis ofthat
record, MSHA has dete,nnined that facts disclosed during the .
investigation ... [do] not constitute a violation of section
105(c)."
With regard to the complaint the miner has filed with the
Secretary[, w]hat could be more final? The Secretary's
involvement with the complaint has ended. The temporary
reinstatement proceeding has ended. [As the Act states,][ i]f
the miner wishes to proceed on his [or her] own behalf, under
Section 105(c)(3) ... [h]e [or she] must "file an action on
his [or her] own b~halfbefore the Commission." It is worth
30FMSHRC 1121

noting Section 105(c)(2), which authorizes temporary reinstatement, speaks to the Secretary. Section 10S(c)(3),
which does not authorize temporary reinstatement, speaks
to the miner. While I am cognizant of counsel for the
Secretary's argument that I must defer to the Secretary's
interpretation of Section 1OS(c)(2) and Section 105(c)(3),
I do not find the[se] provisions ambiguous [and therefore
obligating deference]. To me, they clearly stand for the
proposition that an order of temporary reinstatement must
end once the Secretary decides not to proceed.
The Commission's rules in this regard [t]rack the statute.
Under ... Rule 40(b), for a miner to proceed on ... [his
or her] own behalf, a new complaint must be filed ... .
This complaint is a new action, one separate from the
Secretary's application for temporary reinstatement. Not
only do the Act and Commission's rules treat miner's
complaints and the Secretary's application for temporai'y
reinstatement ·as·separate and distinct from the miner's
complaint on his [or her] own behalfurider Section
105(c)(3), so does the Commission[']s docket office,
which long has docketed actions for temporar)r
reinstatement separate from actions brought under ·
Section 105(c)(3). Moreover, and more importantly,
the remedies available to the miner under Section
105(c)(3) do not, and I emphasize '4not", include
temporary reinstatement. Rather, if he or she prevails,
the miner is made economically whole in part by back
pay and interest.
The remedial provisions in Section 105(c)(2) and
[Sectfon] 105(c)(3) represent a balanCing ... of interests
... [underlying] [C]ongress's desire to encourage [miners]
to actively participate in furthering health and safety under
the Act. Congress recognized [miners] have an interest in
being protected against possible discrimination they
may suffer as a result of ... activities on behalf ofhealthLJ
... safety and enforcement[,) . .. Congress also recognize[d]
... operators have an interest ... [in] control[ling]'their
workforce. By providing temporary reinstatement under
Section 10S(c)(2), [C]ongress determined. ·.. operators
should bear the greater burden while the Secretary concludes
whether, in her view, a miner's complaint of discrimination

30 FMSHRC 1122

has [merit]. But [C)ongress also recognize[d] the operator's
interest in controlling its workforce by making reinstatement
[and its resulting burden] ten;iporary[.] [A]s the 11th Circuit
noted, deprivation of an employer's right to control the
makeup of its ... workforce is ["only a] temporary one that
can be rectified by the Secretary's decision not to bring
a formal complaint or [by] a decision on the merits in the
employe[r]'s favor.["] ... [Jim Walter Resources v. Federal
Mine Safety and Health Reiliew Commission,
920 F.2d738, 748 n. 11 (emphasis in original)]. It seems clear
•
to me the Court believed the temporary nature of reinstatement
under Section 105(c)(2) meant ... reinstatement could end
with, as the Court stated, "[t]he Secretary's decision not to
bring a formal complaint" [Id.], and the right of the operator
to control its workforce could be returned [to the operator]
as the miner contemplated whether or not to proceed on his
or her own behalf under Section 105(c)(3).

1

For these reasons, and given the Secretary's conclusion
... (based on] the information gathered during her ininvestigation of Mr. Phillips' complaint ... [that Mr.
Phillips suffered] no discrimination within the confines of
the Act[,] I conclude the [O]rder of Temporary [Economic]
Reinstatement entered on June 5, 2008, should be dissolved
and this matter should be dismissed.

I will dissolve the order and dismiss this proceeding in a
written order confirming this ... [oral ruling]. Until such
written order is issued, the order of temporary economic
reinstatement will remain in effect.
Tr. 25-30 (editorial changes added).
ORDER
For the reasons stated above, the Order of Temporary Economic Reinstatement entered by
me on June 6, 2008, IS DISSOLVED and this proceeding IS DISMISSED.

t

_j)vJ,d !J~
David F. Barbour
Administrative Law Judge

30 FMSHRC 1123

Distribution: (Certified Mail & by Facsimile)
Thomas A. Paige, Esq., U.S. Departt,nent of Labor, Office ·o f the Solicitor, 1100 \\'.'ilson Blvd.,
22"d Floor West, Arlington, VA 22209-2247
·
Peter J. Phillips, 112 W. 61h Street, FJorence, 'c:":o 80226
Richard P. Ranson, Esq. , Ranson & Kane, P.C., 3475 Briargate l31vd., Suite 201, Colorado
Springs, CO 80920
/ej

..
30 FMSHRC 1124

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

December 19, 2008

ROCK.HOUSE ENERGY MlNING CO.,

CONTEST PROCEEDINGS

Contestant
Docket No. KENT 2008-1483-R
Citation No. 8216019; 07/23/2008
Docket No. KENT 2008-1484-R
Citation No. 8216020; 07/23/2008
Docket No. KENT 2008-1485-R
Citation No. 8216024; 07/24/2008
Docket No. KENT 2008-1486-R
Citation No. 8216025; 07/24/2008
Docket No. KENT 2008-1487-R
Citation No. 8216033; 07/25/2008
Docket No. KENT 2008-1488-R
Citation No. 8216034; 07/25/2008

V.

Docket No. KENT 2008-1489-R
Citation No. 6660866; 07/3112008
Docket No. KENT 2008-1496-R
Citation No. 6660752; 07/02/2008
Docket No. KENT 2008-1497-R
Citation No. 6660753; 07/02/2008
·

Docket No. KENT 2008-1498-R
Citation No. 6657617; 07/11/2008
Docket No. KENT 2008-1499-R
Citation No. 6657618; 07/11/2008

SECRETARY OF LABOR,
MINE SAFETY & HEALTH

ADMINISTRATION, (MSHA),

Docket No. KENT 2008-1500-R
Citation No. 6657619; 07/11/2008

Respondent

30 FMSHRC 1125

Docket No. KENT 2008-1501-R
Citation No. 8216001 ; 07/11/2008
Docket No. KENT 2008-1552-R
Citation No. 8216067; 08/25/2008
Docket No. KENT 2008-1553-R
Citation No. 8216068; 08/25/2008
Docket No. KENT 2008-1554-R
Citation No. 8216072; 08/25/2008
Docket No. KENT 2008-1555-R
Citation No. 8216073; 08/25/2008
Docket No. KENT 2008- 1556-R
Citation No. 8216075; 08/25/2008
Docket No. KENT 2008-1557-R
Citation No. 8216082; 09/02/2008
Docket No. KENT 2008-1558-R
Citation No. 8216083; 09/02/2008
Docket No. KENT 2008-1559-R
Citation No. 8216084; 09/03/2008
Docket No. KENT 2008-1616-R
Citation No. 8216088; 09/08/2008
Docket No. KENT 2008-1617-R
Citation No. 8216089; 09/08/2008
Mine No. 1
Mine ID 15-17651

30 FMSHRC 1126

DECISION
Appearances: Brian W. Dougherty, Esq., U.S. Department of Labor, Nashville, Tennessee,
on behalf of the Respondent
Carol Ann Marunich, Esq., Dinsmore & Shohl, LLP, M organtown, West Virginia,
on behalf of the Contestant
Judge Barbour

Before:

These cases are before me on Notices of Contest filed by Rockhouse Energy Mining Co.
("Rockhouse") against the Secretary of Labor, acting on behalf of her Mine Safoty and Health
Administration ("MSHA") pursuant to section 105(d) of the Federal Mine Safety and Health Act
of 1977 ("the Act") (30 U.S.C. § 815(d)). In the contests, Rockhouse challenged the validity of
23 citations issued pursuant to section 104(a) of the Act at its Mine No. 1, an underground
bituminous coal mine located in Pike County, Kentucky. 1 In each of the citations MSHA alleged
a particular safety standard had been violated and each alleged violation was a significant and
substantial contribution to a mine safety hazard (S&S). The Secretary answered, asserting the
citations were properly issued in all respects.
Because of the potential consequences resulting from the inspectors' S&S findings consequences described below - Rockhouse moved its contests be heard on an expedited basis.2
The contests were assigned to me, and I denied the motion. Order (September 19, 2007).

1

Section 104(a) provides if an inspector:
believes that an operator of a coal ... mine
.. . has violated . .. any mandatory health or
safety standard ... promulgated pursuant to
this Act, he [or she] shall, with reasonable
promptness, issue a citation to the operator.
Each citation shall be in writing and shall
describe with particularity the nature of the
violation.

30 u.s.c. § 814(d).
Section 104(d)(l) of the Act provides, in describing the nature of the violation, an
inspector may find the violation is "of such nature as could significantly and substantially
contribute to the cause and effect of a mine safety or health hazard." 30 U.S.C. § 814 (d)(l).
2

Commission Rule 52 states that a party may request expedition of proceedings, and if the
request is granted, the hearing on the merits of the case shall be held not less than four days
thereafter. 29 C.F.R. 2700.52.

30 FMSHRC 1127

However, in denying expedited review, I stated I believed Rockhouse was nevertheless entitled to
as speedy a hearing as was consistent with orderly proceedings. Accordingly, and with
agreement of counsels, I scheduled the matters to be heard on October 7, 2008, in Pikeville,
Kentucky. (Most of the contests were received in the Commission's Docket Office on August
21, 2008, and were assigned to me on September 15 and 19, 2008.) The matters needed to be
heard and decided promptly because the S&S findings contained in the contested citations were a
key factor in the Administrator ofMSHA's pending decision whether or not to designate
Rockhouse and its Mine No. 1 as exhibiting a ''pattern of violations" ("POV"), a designation
with potentially onerous consequences for the company.3

THE POSSIBLE "PATTERN" DESIGNATION AND ITS
RELATIONSHIP TO THE CONTESTED CITATIONS
In contesting the citations, Rockhouse maintained it was subject to initial screening
pursuant to 30 C.F.R. § 104.2 and§ 104.3 for a POV designation, and MSHA would base its
final POV determination in part on the validity of the contested citations and their S&S
findings. 4 Timeliness Motion l.

3

Section 104(e) of the Act states in part:

If an operator has a pattern of violations of
mandatory health or safoty standards in the
... mine which are of such nature as could
have significantly and substantially contributed
to the cause and effect of coal ... mine health or
safety hazards, he shall be given w1itten notice
that such pattern exists.
Once given a POV notice, an operator is subject to an order of withdrawal each time an
inspector cites it for an S&S violation until a complete inspection of the mine has revealed no
further S&S violations. 30 U.S.C. § 814(e).
4

The agency's procedures for determining whether an operator has exhibited a POV are
set forth at 30 C.F.R. § 104.1, et seq. Section 104.2 specifies the information MSHA reviews in
its annual initial screening process, including information regarding "The mine's history of ...
[S&S] violations." 30 C.F.R. § 104.2(1). Section 104.3 specifies the infom1ation MSHA uses to
identify mines with a potential pattern of violations. It states:
(a) The criteria of this section shall be used to
identify those mines with a potential pattern
of violations. These criteria shall be applied
only after initial screening conducted in accordance with § 104.2 ... reveals that the operator
30 FMSHRC 1128

Rockhouse's contentions and concerns raised questions about ho~ to proceed·. Nei.ther I
nor :counsels kne~ of any guiding precedents. In part this was beca~se.while MSHA has had the
statutory authority to put mines under a POV designation since the passage of the Act, the. agency
only recently has begun to exercise that authority by promulgating ~d by implementing 30
C.F.R. § 104, et.seq. I think it fair to state these procedures and the policy behind them are little
understood by many in industry and.the bar, and I include myself among those who have had .
difficulty comprehending the POV process.5

may habitually allow the recurrence of
violations of mandatory safety or health
standards which ... [are S&,S]. These criteria
are:
. : _.

•'

(1) A history of repeated [S&S] violations of a .
particular standard;
(2) A history of repeated [S&S] violations of
standards related to the same hazard; or

(3) A history ofrepeated [S&S] violations
·c aused by unwarrantable failure to comply.
(b) .Only citations and orders issued after
October 1, 1990, .and that have become final
shall be used to identify mines with a.potential
[POV] .

·'

··..

5

30 C.F.R. § 104 establishes
a four-step POV
designation.and.ten:pination procedure: ·'(1)
.
.
Initial screening (section 104.2); (2) Identification by MSHA of mines with a potential POV
through application of the regulatory criteria (section 104.3); (3): Designation of POV status and
issuance of the designation to :fue operator (section 104.4); and (4) Termination of POV status·
(section 104.5). For operators .the critical steps in the process are: (1) The initial screening; {2)
Identification as .having a potential POV; and (3) .The designation of POV .status. .
.

With regard to S&S violations~ in steps 1 and 2, MSHA's Office 9f Asse!)sments reviews
a 24-month .violation history of a mine to. d~tennine if Hexhibits a potential POV. Among the
criteria for making a potential POV determination are all alleged S&S violations.cited at the ··
mine in the previous 24 months. According to s~tio~ 104.3(b), "[O]nly citations and ,orders..-:; _,.
that have become final shall be used to identify mines with.a potential pattern of violations"
(emphasis added). Thus, an operator may be notified its mine exhibits a potential POV only on
the basis of final S&S allegations. If an operator is issued a notification its mine exhibits a
potential POV, the operator has not more than 20 days within which to do the following: (1)
Review all documents on which it has been evaluated for the designation and provide additional
30 FMSHRC 1129

Rockhouse's position, ·as I understood it, was that its Mine No. 1 had been identified by
MSHA as having a potential POV, and the company had been given written notification to that
effect. In response, Rockhouse had submitted a corrective action plan to avoid repeated S&S
violations. Following implementation of the plan, MSHA had conducted a·complete inspection
of the mine to determine whether or not pursuant to the plan Rockhouse had achieved a 30%
reduction in its S&S rate or whether its S&S rate was at or below the industry average. During
the inspection, 32 S&S citations were issued, of which the subject 23 were contested. ·Given
issuance of the 32 citations, the company had not achieved a 30 % reduction, and its average rate
ofS&S violations was above the industry's rate. However, if four of the contested S&S
allegations were found to be invalid, the mine would meet the 30% reduction goal.
According to MSHA's procedures summary, once the inspection was completed and the
calculation was made, the District Manager would report to the Administrator, and the
calculation would be one of the bases upon which the Administrator would decide whether to
issue a Notice of POV to Rockhouse. Iri this instance, the District Manager's report had to be
sent to the Administrator by September 25, 2008. In turn, the Administrator had to decide
whether or not to issue a Notice of POV within 30 days of his receipt of the Report. Pattern of
Violations Procedures Summary3-4; www.MSFiA.gov/POV/POV procedures. It, therefore,
seemed reasonable to expect the Administrator's decision to be made on or shortly after October
27, 2008 (October 26 was a Saturday).

information to MSHA; (2) Submit a written request for a conference with the MSHA District
Manager; and/or (3) Provide a written corrective action plan to institute a program to avoid
repeated S&S violations. See Pattern of Violations Procedures Summary,
www.MSHA.gov/POVIPOVprocedures.pdl If an operator chooses not to submit an improvement
plan to MSHA within 60 days of the operator's receipt of notification of a potential POV
designation, MSHA will eonduct a·complete inspeetion of the mine and the District Manager will
analyze the results of the inspection to determine whether the operatOr has reduced the frequency
rate of S&S violations by 30% or has achieved a frequency rate for S&S violations that is at or
below the industry average. (If the operator chooses to submit an improvement plan, MSHA will
conduct the complete inspection no later than 90 days from the date the operator submitted the
plan, and the District Manager will analyze the results of the inspection to determine whether the
operator has reduced the frequency rate of S&S violations by 30% or has achieved a frequency
rate for S&S violations that is at or beiow the industry average.) The frequency rates .for S&S
violations will be based on the S&S designation in all .Citations and orders issued since the
receipt of notification or since the receipt of the improvement plan. The citations and orders
need not be final orders of the Commission. Id. Based on a report he or she receives from the
District Manager concerning the results of the complete inspection, MSHA's Administrator will
then decide whether to issue a Notice of Pattern of Violations to the operator. Such a notice
officially places the operator under the strictures of section 104(e). Id

30 FMSHRC 1130

This was the primary reason Rockhouse's counsel moved. for an expedited hearing.
Although counsel for the Secretary opposed an expedited hearing, he did not oppose one that was
convened expeditiously. Because I believed Rockhouse had an compelling interest in
determining whether it would be faced with the repeated closures inherent in a Notice of POV,
and because it was likely a POV decision would be made on .or shortly after October 27, I
accelerated the trial schedule so the cases could be heard and.at least .i nformally decided before
the time the Administrator had to act on the District Manager.' s POV recommendation. With the
concurrence of counsels, I scheduled the hearing to commence on October 7, and I advised
counsels I would issue bench decisions on the issues at the close of the taking of the evidence on
each contested citation. I further advised them the bench decisions would not be final until they
were confirmed in writing. Counsel for the Secretary stated MSHA's POV considerations would
be bound by the oral bench decisions. Whether or not this was the best way to proceed is
certainly open to question. Other counsels and judges may well find different approaches more
satisfactory.
For these reasons the contests were tried and orally decided October 7 - October 9, 2008.
The results of the trial follow. Editorial changes have·been made in some of the oral decisions.

KENT 2008-1483-R
CITATION NO.
8216019

DATE
July 23, 2008

30.C.F.R. §
75.l 725(a)

The citation states in part:
:~

The roof bolter . . . being used on the 008-0 MMU
is not being maintained in a safe operating condition. The
tram levers in
operator[')s compartment will "over-lap"
each other by one inc4. This condition exposes miners on
a daily basis to hazards of being crushed against the mi.ne
rib when the wrong lever is activated. Miners work in close
proximity to this machine while it is operated.and often place
themselves between the machine and the mine.rib dtiring the
"normal mining cycle."

the

Gov't Exh. 1.
Section 7S.l 72S(a) requires" "Mobile equipment ... [to] be maintained in safe operating
condition and ... equipment in unsafe condition shall be removed from service immediately."
With regard to the citation, I stated:
Based on the testimony of ... [I]nspector [Kenny

30 FMSHRC 1131

Fleming]', which I credit[,] l find the tram levers in
fact overlapped as described in the citation. I note
. the testimony establishe[d] the equipment [i]s
manufactured with a two-inch space between the
levers[,] ... [a]nd I find it improbabl[e] that the
inspector knowing this would have been rriistaken
. about a condition that was otherwise.

I also find it unlikely, as Rockhouse's foreman John
Adams believed, that Fleming : .. pushed the levers
together so they overlapped. Certainly[,] no ohe has
suggested a motive for him to cause the citation
condition. ·
Having found the levers overlap[ped], the next
question is whether the overlapping levers created
an unsafe condition. I conclude the answer is
["]yes["], because I accept the testimony of
Inspector Fleming that overlapping levers can result
in the roof bolter operator causing the equipment to
·suddenly move in an unintended direction through a
mistaken activation of the wrong lever. Mr. Adams
testified believably that roof bolter operators can
use one band to push levers and thus retain full
control. But there was no showing all roof bolter
operators always use one hand, and it is clear the
tramming mecharusm is designed for two hands.·
Certainly, at least some of the roof bolter operators
must operate the roofbo1ter as designed. Sudden
unintended movement of large equipment like a
roof bolter is unsafe. And I therefore find the
overlapping tram levers represented an unsafe
condition within the meaning of the
standard.
A violation is properly designated S&S if based on
the particular facts surrounding the violation there
exists a reasonable likelihood the hazard contributed
to will result in an injury of a reasonably serious
nature. All agreed the feared hazard was of a mirter
being caught between the rib and the roof bolter by
a sudden and unexpected movement. I accept

30 FMSHRC 1132

Inspector Fleming's testimony that miners
sometimes walk beside the roof bolter when it's
being trammed. And even if miners are not
supposed to, sometimes [they] place themselves on .
the offside [of the roof bolter (the side opposite the
roof bolter operator)], between the ribs and the roof
bolter. Inspector Fleming believably testified he has
seen ... miners where they were not supposed to
be. Indeed, Rockhouse recognizes the hazard and
warns its miners ... [about] it. But the sad fact is
that miners, like all of us, do what they shouldn't do
at times and [they] subject themselves to danger.
Given the fact the roof bolter operator's vision of
the offside is frequently at least partially obstructed,
and given the fact miners occasionally place
themselves between the ribs and the roofbolter, .I
conclude the violation directly contributed to the
hazard of miners being struck and injured by a
sudden and unexpected movement of the roof bolter
... [ a]nd that such an injury was reasonably likely
[to occur] as mining continued.

If such an accident happened ... [the result] was ...
reasonably likely to be serious, even deadly. And
for these reasons, I.find the violation was S&S. The
violation also was serious; and, as counsel for
Rockhouse agreed, ifthe violation existed the
operator was[,] as found by Inspector Fleming[,]
moderately negiigent.
Tr. 396-399.
KENT 2008-1484-R
CITATION NO.
8216020

DATE
July 23, 2008

30 C.F.R. §
75.517

The citation states in part:
The energized ... cable supplying power to the roof
bolter ... bei.ng used on the 008-0 MMU has an
opening in the outer jacket.exposing the inside,
30 FMSHRC 1133

insulated, phase conductors. The MMU floor is wet
at various locations and the cable is frequently
handled by the miners on a regular basis. This
condition exposes them to hazards associated with
electrical shock. This condition is·
evident approximately 100 feet from the roof
bolting machine.
·
Given these "confluence of factors" and "continued
normal mining operations" along with the rugged
abuse that these cables are exposed to, this
condition is at least reasonably likely to result in a
lost time injury.
Gov't Exh. 2.
Section 75.517 requires trailing cables to be: "insulated adequately and fully protected."
With regard to the citation, I stated:
The citation alleges Rockhouse violated 30 [C.F.R.
§] 75.517 wherein an energized cable to the roof
bolter ... was found to have an opening in its outer
jacket, thus exposing the inside insula~ed
conductors. In her closing argument, [c]ounsel [for
Rockhouse] conceded the violation[, a]nd I find .. .
it occurred as alleged .... [T]he next question .. .
is whether the ci~ation was S&S, and I find it was.
While location of the fingernail-size operiing is
disputed, I find Inspector Fleming's testimony more
credible in this regard. He unequivocally stated the
opening he found was 100 feet from the roof bolter.
This meant[,] and I find[,] the opening
was on the floor as he testified, and I also find as he
testified that the .f loor was moist and wet and
muddy.
·,
Inspector Fleming believed as mining continu[ed]
miners would handle the cable to suspend it since it
is prohibited to run over the cable. Moreover, he
testified that continuing stress and strain o~ the
cable subjected the insulation of the phase
conductors to damage, and that something as small

3U FMSHRC 1134

as a pinhole could subject those handling the cable
to severe shock injury or even to electrocution. I
. credit all of ... [his] testimony [in this regard).
I do not accept the Secretary's argument that the
increased daily inspections Rockhouse instituted as
a result of being under scmtinyfor a ... [POV
designation] are irrelevant. It strikes me
that it would .be StraJ1ge indeed if meeting one of the
goals of the ... [POV) provision of the Act - that
is, heightened ... [vigilance] to ensure compliance
... [were] found ... .irrelevant. Certainly, at least
in my view, such ... [vigilance] should be
considered when determining the reasonable
likelihood [of whether] the hazard created ... [will]
result in an injury, However, here the testimony
reveals ... [the company's vigilance) was defective. .
At the beginning the shift, Rockhouse personnel
visually examined the cable by walking it. Given
the small size of the opening, given the mud and the
water on the mine floor, I find there was little
chance the inspection would have decreased the
likelihood of an injury.

Therefore, ... [in view of] this and the fact that as
Inspector Fleming testified the opening was likely to
grow larger as mining continued.and the interior
col_lductors and the insulation would be subject[ed]
to even more stre.ss, I [find] ... there was a
reasonable likelihood the opening would result in a
miner being subjected to a shock injury.
In addition, I find the injury was reasonably likely to
be severe, even to be fatal[, a]nd that the wet
condition~ increased this likelihood[.] [T]herefore, ·
the violation was serious. I also note
[c]ounsel for Rockhouse's agreement that should I
find ... [a] violation, the inspector[']s finding of.
moderate negligence ... [on] the company's part
should stand[, a]nd I therefore so find.

Tr. .399-400.

30 FMSHRC 1135

KENT 2008-1485-R
CITATION NO.
8216024
The citation states in part:

DATE

'30 C.F~R. §

July 24, 2008

75.1403

Extraneous materials in the form of 4, 3 inch, 20
[foot] long sections of water-line have been allowed ·
to exist at the outby scoop charging station at
the # 8 belt drive. This material exists lying on
the mine floor, parallel with the scoop that is
being charged, with one end near the operator[']s
compartment. This condition exposes the
scoop operator to hazards associated with being
imp(ailed) or struck by this ·debris when [the
debris is run] over. This scoop is readily available
for use to the miners in the outby air courses.
Given the "vagaries of human conduct" m[the]
context of "continued normal mining operations,.
[and] absent the intervention of an MSHA
official, this condition is reasonably likely to
result in a lost time accident.
Gov't Exh. 5.
The citation alleges the cited condition is aviolation of Notice to Ptovide Safeguards No.
7415705, issued at the mine on March 30, 2005. Id: Section 75.1403 provides "[o]ther
safeguards ... to minimize hazards with respect to transportation of men and materials shall be
provided." Once a safeguard has been required, it is enforceable as a mandatory safety standard
at the subject mine. See Southern Ohio Coal Company, 14 FMSHRC 1, 8(January1992); Jim
Walter Resources, Inc., 7 FMSHRC 493, 496 (April 1985).
With regard to the contested citation, I stated: ·

Ifl take as a given that.an S&S finding can be lawfully made
for an alleged violation of Section 75: 1403, and this is an
issue that is currently before Commission Administrative Law
Judge Michael Zielinski, [6) ••• to find a violation [of section

6

0n November 4, 2008, Judge Zielinski ruled an S&S finding could not be made for an
alleged violation of section 75.1403 (Order Granting Respondent's Motion For Partial Summary
Decision, Big Ridge, Inc. 30 FMSHRC _ _ (November 2008), Docket No. Lake 2008-68, etc.),
and on December 24, 2008, he issued a similar ruling. Order Granting Respondent's Motion For
30 FMSHRC 1136

75.1403] I must conclude the facts of the citation fit squarely
within the notice to provide safeguards. Because I do not
believe the Secretary has born[e] her burden of proof in this
regard, I find she has not established a violation.

*

*

*

The notice to provide safeguard was issued when a fatal accident
occurred. The accident involved a battery tractor backing into a
crosscut and the right rear tire of the tractor rmming over a 14foot length of metal channel, causing the channel to enter the
[tractor) operator's compartment and kill the operator.
The notice (to provide safeguard] makes clear [that] extraneous
material was observed along the roadway in addition to the
metal channel. This extraneous material included jacks, belt
structures, crib blocks, concrete blocks and track ties. The
notice requires ... all roadways where mobile equipment [is]
operated to be maintained free from such extraneous materials
causing a hazard to equipment operators. The wording of
the notice ... on its face seems clearly to relate to material[s]
that are not supposed. tO be in a roadway; in other words[,]
materials that are extraneous. While Inspector Fleming
convinced me the cited scoop was indeed in a roadway, he
did not convince me ... the waterlines were the type of
material covered by the safeguard. Rather than being where
they were not supposed to be, I credit Mr. Ward's testimony
. .. the lines were placed in the charging station area
purposefully. The charging station was ... a staging area
for supplies[,] [a]nd Mr. Ward testified without [dispute] that
the waterlines were purposefully placed there to be moved
by the scoop. They were not in[,] other words, ("]extraneous
material.["]
Moreover, even if the facts fit the safeguard, there was no
reasonable likelihood that the hazard to which they contributed would have caused an injury. The waterlines were
placed on the ground next to the scoop after the scoop had
entered the area. They [~ad not] been driven over[;J nor were
they likely to be driven over since the testimony established

Partial Summary Decision, Cumberland Coal Resources, LP, 30 FMSRHC _
2008) Docket No. PENN 2008-318.
30 FMSHRC 1137 .

(December

... they were to.be moved by the scoop. And even if they
[were not] moved, the scoop operator had to step on them
to enter the operator's compartment. He or she would,
therefore, have been fully aware of the lines and their
location. [It is] reasonable to assume that he or she would
have taken steps to avoid them as he or she backed out
from the charging station. Also[,] if other equipment crune
in to the charging station, the equipment would, as Mr.
Ward credibly testified ... [have to·enter] slowly. And
the waterlines were readily visible. For these reasons ...
if I found that a violation existed, I would not find it [was]
S&S.
However, I would find it serious[,] because I agree with
the inspector that if one of the pipes had been run over
and was somehow in some way propelled or moved in a
fashion that would cause 1t to strike the operator~ the
injury the operator would suffer wollld range from concussions[,] to fractures[,] to even death.
Finally, ifl found a 'violation, I would find, based on the
agreement of counsel for Rockhotise, that the cofupany' s
negligence in allowing ... [the violation] to exist was
moderate. ·

Tr. 405-409.
KENT 2008-1486-R
CITATION NO. . '
8216025

DATE
July 24, 2008

30 C.F.R.·§
75.503

The citation states in part:
The scoop ... being used in the outby air ways is ·not being
maintained in permissible condition as per 30 C.F.R, Part
18.31. An opening in excess of .003 of an inch is present
beneath the plane 'flange joint cover of the "Ocenco" brand
light on the operator[']s side, bucket end of the·scoop. The
empty internal volume of the explosion proof enclosure
measures less than 45 cubic inches. This mine is on a
[section] 103(i), 1S day spot inspection and has a hist.ory
of liberating inethane. [This] "confluence of factors'; expose

30 FMSHRC 1138

the miners to hazards associated with a methane ignition
such as smoke inhalation or burns.
Gov't Exh. 8. 7
Section 75.503 requires the operator "to maintain in permissible condition all electric face
equipment required ... to be permissible which is taken into or used inby the last open crosscut"
of the mine.
With regard to the citation, I stated:
The citation alleges ... a scoop was not being maintained in a
permissible condition, in that there was an opening in excess of
.003 of an inch beneath the flange joint cover of the side light
at the bucket end of the scoop.
As I understand Rockhouse's closing argument, [c]ounsel
concedes the violation[.] in that she agrees the opening was in
excess of the permissible limit. I'll add here that I conclude
the proper standard - that is [s]ection 75.503 - was in fact
cited. The scoop was manufactured in permissible condition
so that it could be used in face areas of the mine. This is enough[,)
in my opinion, to requi:re it to be so maintained. I also credit
Inspector Fleming's contemporaneous notes that the scoop
was used in ... . return [air]. Fleming wrote the notes when
his memory was fresh[,] [a]nd his testimony fully supports
what he wrote.
Despite Rockhouse's protest that the logistics of getting the scoop ·
into the return were prohibit[ive] ... in my opinion the statement .· .
Fleming recorded is entitled to more weight than Mr. Ward's later
testimony that having to go through the stoppings to get into
the return represented a prohibit[ive] challenge.. I also note the
testimony reveals it was possible, albeit inconvenient, to transport
the scoop to the nearest working section.
I[,] therefore[,] conclude as mining continue[d], ... [it was] reasonably
likely .. . the scoop would have been used either in the next working
section or in the [return]. As [Inspector] Fleming testified, there

7

Section 103(i) mandates, inter alia, the Secretary require a minimum of one spot ·
inspection of all or part of a mine when the Secretary finds the mine liberates more than two
hundred thousand cubic feet of methane during a 24-hour period. 30 U.S.C. § 813(i).
30 FMSHRC 1139

was an ignition source, ... [it] being the internal electrical [components]
of the light. Moreover the mine clearly was subject to ·... large
methane releases. Therefore, I find ... as mining continue[d], it was
reasonably likely an ignition or explosion [could have] occurred
that could have [seriously] injured [or killed] the scoop operator.
· In addition to being S&S, the violation was also serious. [T]he least
serious consequences ... suffered from an ignition or an explosion would have been ... a flashburn, but the most serious
... [would] have been death. And finally, for the reasons stated
with regard to the previous citations, I find the violation [was due]
to Rockhouse['s] negligence.
Tr. 409-411.

KENT 2008-1487-R
CITATION NO.
8216033

DATE
July25, 2008

30 C.F.R. §
75.517

The citation states in part:
The energized #2 ... cable supplying power to ·the roof ·
bolter ... being used on the 010-0 MMU has two ...
openings in the outer jacket exposing the inside, insulated
phase conductors. The MMU floor is wet at various
locations and the cable is frequently handled by the miners
on a regular basis. This condition exposes them to hazards
associated with electrical shock. Thfa condition is evident
approximately
and 200 feet from the roof bolting .
machine.
·

roo

Given these "confluenc.e of factors" and "continuing nortnal
mining operations[,]" along with the rugged abuse that these
cables are exposed to, this condition is at least reasonably
likely to result in a lost time injury.

8

The citation, which inadvertently was not admitted as an exhibit, is nonetheless part of
the record and is found as an attachment to Rockhouse's Notice of Contest, Docket No. KENT
08-1487-R.
30 FMSHRC 1140

As noted above, section 75.517 requires trailing cables to be: "insulated adequately and
fully protected."
With regard to the citation I stated [9 ] :
The citation was issued when the inspector found two openings
in the outer jacket of ... a roof bolt[ing machine'~] trailing
cable. [T]he opening[s] exposed the insulated·phase conductors,
and the floor in which the roofbolt[ing machine] was located
was wet and muddy.
The standard [cited] required the trailing cable to be insulated
adequately. Everyone agreed ... the openings existed [, that
t]he damage to the cable exposed the insulated inner conductors,
and that the cable was not adequately insulated. Thus[,] the violation existed as charged.
The next question is whether it was S&S. Here, I find Mr.
Ward's testimony to be credible .... [Inspector] Fleming and
Mr. Ward were at odds over the location of the two defects.
I find that the two defects were much closer together than
... [Inspector] Fleming believed. It strikes me as inherently
reasonable and logical that Rockbouse would not have had
the cable spliced had the defects in fact been ... [one]
hundred feet apart as ... [Inspector] Fleming maintained.
Mr. Ward recalled them as ten tol5 feet apart[,][a]nd while
they may ... in fact [have] been somewhat more [apart],
I ... [conclude] that [Mr.] Ward's testimony was accurate.
I also find, as Mr. Ward testified, that because the power
center had recently been moved up, the defects in the cable
would have been on the [cable] reel, not on the floor for the
next shift, and perhaps for up to two shifts beyond.
I agree with Mr. Ward that under these circumstances, miners
would not be likely to handle the cable anywhere near the
defects. I note parenthetically, however, that the fact ...
rubber gloves were available to miners if they wanted to
wear them has no bearing ... on the S&S issue.
It is also important, in my opinion, that Rockhouse changed

9In delivering the bench decision[,] I incorrectly stated the citation number as 8216300
rather than 8216033. Tr. 402.
30 FMSHRC 1141

its [trailing cable] inspection proce.dures. [P]rior to a shift[,] the
entire cable was inspected with a hands-on inspection. This
means it was being inspected three times every 24 hours
[rather] than one time a week. Not only is it likely the
damaged parts of the cable would not have been on the wet
and muddy mine floor.[because they were on the cable reel],
it is reasonably likely the damage would have been detected
and corrected before the.roofbolt[ing machine] moved so far
from the power center .... the damaged places would have
been on the floor.
For these reasons.[,] I c~mclude the Secretary has failed to.
establish-it was reasonably likely the damaged cable would
have caused a shock inj:µry at the time it was cited[,] or as
mining continue[d] ~d before the defects were corrected.
Despite the fact the violation was not S&S, it was serious.
Had an injury occurred[,] a miner would have received [a]
serious shock or even ... been killed.
[Finally, as] the company(' s] counsel agreed ... [the
violation .was] due to the company's moderate negligence.
Tr. 402-405.

-K ENT 2008-1488-R
CITATION NO.

DATE

30 C.F.R. §

8216034

. July 25, 2008

75.517

Counsel for Rockhouse stated the company wished to withdraw its contest. I approved
the withdrawal and dismissed the case. Tr. 24.

KENT 2008-1489-R
CITATION NO.
6660866

DATE
July 31, 2008

30 C.F.R. §
75.1722(a)

The citation states in part:
The speed reducer shafts and drive rollers on the CO # 4
belt [are] not provided with adequate guarding to prevent
person[s] from coming into contact with [the moving parts] ..
The drive rollers and the speed reducer shafts turn at a
30 FMSHRC 1142

high rate of speed. The speed reducer shafts are two
feet wide, and easily accessible from either the end of.the
head drive. This belt is traveled once per shift by the on[-]
shift belt examiner and serviced every other day.
Gov't Exh. 10.
Section 75.l 722(a) requires in part, "Gears, sprockets, chains, drive, head, tail and takeup
pulleys ... and similar exposed moving machine parts which may be contacted by persons and
which may cause injury ... shall be guarded."
With regard to the citation[,] I stated:
MSHA Inspector James Mcintosh cited the company for
not providing adequate guarding on the speed reducer shafts
and drive rolls of the ... mine['] s main conveyor belt drive.
Specifically, Mcintosh asserted there were two openings
through which miners could enter [the area containing
the moving parts]; one being 12 inches across, and one
being two feet across. The head drive itself was guarded .
by a fence. However, these two openings, one at either
... end of the fence, in Mcintosh's view justified finding
... [the] violation. I conclude Mcintosh was right. There
is really no dispute the 12-inch opening existed. Although
a person would have to squeeze ... to get ... [through] it,
as ... [Inspector] Mcintosh testified, I ... [find] it could be
done.

I further find that once past the opening, contact with the
moving parts was possible. True, a person would have to
step up on the frame [of the drive] to achieve contact,
but it could .. . [be] done.
I [also] accept ... Mcintosh's testimony that once inside
the two-foot opening[,] access to the moving parts of the
head drive ... [was] possible. His testimony that some of
the moving parts were within arm' S· ~ •• [length] was
... credible. ["A]rm's length["] ... is a ·frequently used
colloquial unit of measure ... [a]nd the lack of a more
precise measurement ... does not discredit the inspector's
testimony.

As with the other opening, once access [to the moving

30 FMSHRC 1143

parts] was gained, a person would have to step up on the
frame to reach the ... part[s]; but it could be done. For ... ·
[these] reasons[,] I fihd the violation existed as charged.
I also find it was S&S. The evidence establishes the area
of the head drive was traveled two times a day by miners.
In addition, miners would from time to time be assigned to
service [equipment] and clean up the area. I find it ... [was]
reasonably likely[,) as mining continued a miner would enter
the area, and having gained access, would be entangled or
otherwise have contact with the head drive's moving parts.
Clearly, miners were not supposed to enter the
inadequately guarded area while the hear drive was
operating. But as [c]ourisel for the Secretary pointed
out [in his closing argilment], miners do not always do
what they are supposed to do. By this I mean that as mining
continued it was reasonably likely the day would come
when a miner would decide to enter the inadequately ·
guarded area to better undertake a ... repair, cleanup or
inspection function, would step up on the frame and would
become entangled in ·the moving parts or would otherwise
contact them.
When such contact occutred, the resulis were reasonably
likely to be serious ... [ranging] from cuts[,] to broken bones[,]
to dismemberment[,] to death . . . . Because ·of the gravity of
the possible resulting injuries, I also ... conclude ... [the
violation] was serious.
Tr. 810-813.
Finally ... and with the agreement of counsel for Rockhouse,
I find the [inspector] accurately found Rockhouse was
moderately negligent.
Tr. 817

KENT 2008-1496-R
CITATION NO.
6660752

DATE
·· July 2, 2008

30.C.F.R. §
75.340(a)(l)

Counsel for Rockhouse stated the company wished to withdraw its contest. I approved
the withdrawal and dismissed the case: Tr. 24.

30 FMSHRC 1144

KENT 2008-1497-R
CITATION NO.
6660753

DATE
.July 2, 2008

30 C.F.R. §
75. 2.03(a)

The citation states in part:
[The m]ethod of mining on the 010-0 MMU is exposing miners
to the hazards of excessive widths. A five[-]way intersection
has been developed in the No. 3 entry 70 feet inby [S]urvey
[S]pad # 30903. The intersection measured 32 ft. and 5 inches
wide. This condition exposes miners to injuries related to roof
falls, excessive rib sloughing and draw rock. This section was
not producing at the time but three mechanics were working
in the area during this inspection. The foreman dangered off
the area until proper roof control could be installed.
Gov't Exh. 11.
Section 75.203(a) requires in part "the method of mining shall not expose any person to
hazards caused by excessive widths of rooms, crosscuts and entries . . . . Pillar dimensions shall
be compatible with effective control of the roof, face and ribs and coal or rock bursts."
With regard to the citation[,] I stated:
MSHA Inspector Billy Meddings cited the company for
exposing miners to the hazards of excessive widths at
a five-way intersection developed in the number three entry.
The hazards the inspector cited related primarily to draw
rock and to rib sloughage. To be frank, I found the evidence
... hard to follow and confusing. And although this was true
of both sides, it was.particularly true . . . in the case made by
Rockhouse. This stated, I found the argument presented by
[the] Secretary's [c]ounsel, the essence of which was to focus
on the facts the inspector found when he cited the violation
and ... the concerns he had at that time to be th<'? most helpful
in resolving the relatively simple issues presented .

I stated ... [the issues] are ["] relatively simple["] because
Rockhouse's [c]ounsel concedes the violation existed. [Thus,]
Rockhouse was indeed employing a mining method that
resulted in excessive widths, as testified to by Inspector
30 FMSHRC 1145

Meddings. And ... [Inspector Meddings also] testified those
[excessive] widths were accompanied by certain visual
[indications] of hazards.

In this regard, I credit Inspector Meddings' testimony that he
observed draw rock in the roof. He described what he saw
and he identified its location on a map .... I also credit his
testimony he observed sloughing ribs at two different corners
of the ·odd heading. Again, he described what he saw and he
identified where he saw it on a map ... . .
As is well known, sloughing can be an indication the ribs are
taking excessive weight. · Meddings believed the sloughing
reflected this .. ; . And given the conditions at the five-way
intersection, I find his belief was reasonable. I[also] agree · ·
with the inspector that the laminated shale roof ... was
subject to increase[d] pressure from the excessive widths . : . .
[T]his in tum put pressure on the draw rock, making the ...
[draw rock] more likely to fall.
Further, I accept . . ; [Inspector] Meddings testimony that his
examination of the test hole revealed a horizontal shift in the roof
strata ... and this,- in turn, meant the weight from the excessive
widths was causing the shift, making draw rook falls and rib
rolls more likely.
[T]he measures taken by Rock:house to help support the entire
roof of the entry[- a]nd here I'm reforririg primarily to leaving
two large pillars·and to installing cable bolts[- ] while
... commendable and no doubt necessary for overall roof
support . .. did not adequately address the more p~cular
hazards that rightfully concerned the inspector.
As the citation states, and as the testimony reveals, three
miners worked in the area when the inspection took place.
Had the conditions cited by Inspector Meddings continued,
I conclude it was reasonably likely one [or more) of ... [the
miners] would have been injured by falling draw rock and/or
by a rib roll. I(,] therefore[,] find this violation was S&S. I also
find it was serious. Being hit by falling rock can easily cause
a disabling injury.'
Finally ... and with the agreement of [c]ounsel for Rockhouse,
I find the inspector accurately found Rockhouse was moderately

30 FMSHRC 1146

negligent.
Tr. 814-817.

KENT 2008-1498-R
CITATION NO.

DATE

66657617

July 11, 2008

30..C.F._R . §
75.1403

Counsel for Rockhouse stated the company wished to withdraw its contest. I approved
the withdrawal and dismissed the case. Tr. 24.

KENT 2008-1499-R
CITATION NO.

DATE

66657618

July 11, 2008

;.

30 C.F.R. §
75.503

The citation states in part:
The bolter SIN 96057 being used on the 001-0 MMU is not
being maintained in permissible condition. The cable and
cond:uit supplying 120 volts AC power to the rear spot
lights has been but exposing the energized, bare copper
wires. This mine is on a 103(i), 15-day spot inspection .
with a history of liberating 1I1ethane. Methane concentrations
have been found on this MMU on this date of up to .2%.
This damaged cable is also covered in hydraulic oil from a
ruptured hose. This condition exposes the MMU employees
to hazards associated with methane ignition on a daily
basis.
Gov't Exh. 9.
. .

Section 75.503 ,requires the operator "to maintain in permissible condition all electric face
equipment required ... to be permissible which is taken into or used inby the last open crosscut"
of the mine.
With regard .to the citation[,] I stated:
[I]nspector Kenny Fleming cited the company for
exposed energized wires leading to the rear spotlight[s] of
an energized roof bolter located on the 001-0 MMU on July
11, 2008. He also found the cited [condition] constituted a[n]
30 FMSHRC 1147

... [S&S] violation.
While the company concedes the roof bolter was in violation
of the standard, it emphatically disagrees with the inspector
as to how the roof bolter violated the standard. The inspector
maintains the two copper wires conducting electricity to the
lights were exposed through a damaged conduit. The company,
relying on the testimony of Dan Blackburn, [its] ... superintendent
and the company official who traveled with Inspector Fleming,
maintains only the neutral ground wire was exposed.
The way the conflicting testimony is resolved is important,
because[,] in my view, it [is] critical to the inspector's S&S finding.
Having listened carefully to the testimony of both Inspector
Fleming and Mr. Blackburn, I credit the ... superintendent's
version of the state of the cited wires. In so doing, I am in no
way implying Inspector Fleming was less than truthful and
forthright. Clearly[,] the inspector is a well-qualified representative
of the Secretary[,] ... [a person] committed to carrying out his
duties in a fair and impartial manner.
This stated(,] experience has repeatedly shown that two very
competent[,] knowledgeable people can look at the same situation
and see and remember very different things. Inspector Fleming
repeatedly testified he viewed the conductors and that both were
exposed. Mr. Blackbum was equally adamant that only the neutral
ground wire was exposed. [Blackbum, like Fleming] ... had
viewed the damaged wires, and . . . [Blackbum] emphasized the
ground wire was green. Inspector Fleming did not indicate in his
[testimony or his] -notes the color of the wires that were [exposed].
He did agree neutral ground wire and the conductors were twisted
inside the conduit.
It seems reasonable to me that what I view as the inspector's
misidentification of the severed wire[s] may have been facilitated
by the twisted nature of the wires. Without a particular identifying
feature, the twisting of the wires [made] confusion more likely.
Mr. Blackburn was certain that the neutral ground wire was the
only one exposed. Why[?] (B]ecause he could easily identify it
[by its green color]. More than that[,] Mr. Blackburn
unhesitatingly affirmed that the rear spotlights . . . (of] the scoop
were turned on before the damage was repaired.

*

*
30 FMSHRC 1148

*

I accept Mr. Blackburn's testimony ... [that] the lights
were turned on before the violation was abated. Mr.
Blackbum was clear and unequivocal about this, and he was
convincing. Moreover, the fact the lights were illuminated
... before abatement means the conductors were not ...
severed. [T]hus, it is my belief Mr. Blackburn was right when
he testified it was the neutral ground wire that was exposed.
Inspector Fleming agreed, and I find that[,] standing alone, an
exposed ground wire would not be an ignition source. [W]ithout
an ignition source there could be no reasonable likelihood of a
hazard coming to fruition. fu making this finding I am not
disregarding the Secretary's observation that damage to the conduit
[might] have weakened the conductors ... [a]nd the conductors
might[,] therefore[,] act as an ignition source as mining continued.
However, I view the possibility of future damage [to the conductors
making them an ignition source] as too speculative. The situation
with the spotlight conductors is not analogous to the situation ...
[of] ... trailing cable conductors ... in that there ... [was] no
showing the spotlight conductors were subject to the repeated
stresses and strains endured by ... trailing [cable conductors).
For all of these reasons, I find the violation was not S&S.

I also find the violation was non-serious. The exposed neutral
ground wire.did not pose an ignition hazard or a shock hazard
either for that matter.[ 10]
Tr. 806-8 10.

KENT 2008-1500-R
CITATION NO.
66657619

DATE
July 11, 2008

30 C.F.R. §
75.400

The citation alleged accumulations of combustible material in the form of float coal dust
soaked with hydraulic oil existed on the same roof bolting machine involved in the preceding
citation (Citation No. 6657618). Following my finding that an ignition source did not exist with
regard to Citation No. 6657618, counsel for the Secretary stated the Secretary would modify

1

°I neglected to state as part of the bench decision that counsel for Rockbouse agreed the

violation was due to the company's moderate negligence as found by Inspector Fleming, and I
now so find.
30 FMSHRC 1149

Citation No. 6657619 "to a non[-]S&S citation." 1·1 Tr. 826. Counsel for Rockhouse then agreed
to withdraw the company' s contest of Citation No. 6657619. fapproved the withdrawal and
dismissed the contest. Tr. 826-827. ··
KENT 2008-1501 ~R
CITATION NO.
8216001

DATE
July 11, 2008

30 .C.F.R. §
75.507

Counsel for Rock.house stated the ·company wished to withdraw its contest. I approved
the withdrawal and dismissed the case. Tr. 24. .
KENT 2008-1552-R
CITATION NO. ·
8216067

DATE
August 25, 2008

30 C.F.R §
75.l 725(a)

The citation states in part:
The . . .' #' 12 belt conveyor is not being maintained in a safe
operating conditiOn. the bottom belt iS rubbing hard against eight
... return side bottom roller.hangers [one] cross cut outbythe belt
conveyor tailpiece. These bottom roller hangers are hot to touch
with an ungloved hand and . . . (the rubbing] has discolored the
metal hangers from frictional neat.' Fine pieces·of dry belt string
are present around the mid axle of the bottom !"oilers. This belt has
also been cited during today'sinspection for allowmg
accumulations and not having the required 50 [feet per minute]
[FPM] of air. [ThisJ confluence of factors expose[s] miners to
hazards associated with fire and smoke inhalation on (a] daily
basis.
Gov't Exh. 14 at 2.
Section 75.1725 requires i~ part "mobile and stationary machinery and equipment shall
be maintained in safe operating condition."
.

11
· Prior to this, counsel for Rockhouse had agreed that should a violation exist, it was

caused by the company's moderate negligence as indicated by.the inspector, and I so find. Tr.
805-806.
30 FMSHRC 1150

KENT 2008-1553-R
CITATION NO.
8216068

DATE
August 25, 2008

30 C.F.R. §
75.400

The citation states in part:
Accumulations of combustible material in the form of
black float coal dust [have] been allowed to accumulate
along the ... #12 belt conveyor. These accumulations
are paper-thin and exist in the belt entry, extending into
both adjacent entry cross cuts, for an approximate
distance of 490 feet. This belt conveyor has been [c]ited
on this date for the unsafe operating condition of allowing
the bottom belt to rub hard against the bottom roller
hangers[,] creating frictional heat and not having the required
50 FPM of air. [This] confluence of factors exposes miners
to hazards associated with fire and smoke inhalation on a
daily basis.
Gov't Exh. 14 at 1.
Section 75.400 prohibits accumulations of"coal dust, float coal dust ... loose coal and
other combustible materials ... in active workings ... or on electric equipment therein."
With regard to the two citations[,] I stated:
Citations [No.] 86216068 and 6216067 are closely linked
factually and issue-wise, and I'll decide them together.
Citation [No.] 8316068 alleges extensive accumulations
of float coal dust were allowed to accumulate along the
[No.] 12 belt conveyor and into adjoining crosscuts.
Citation [No.] 8216067 alleges the belt conveyor itself
was not maintained in safe operating condition, in that
the bottom belt was rubbing.against eight return roller
hangers, one crosscut outby the tail piece. It additionally
charges ... fine pieces of ... ["]string["]., which were
really shredded pieces of belt[,] were present along the
mid-axle of the bottom rollers. Inspector Fleming~ who
issued the citations, found the cited conditions ..•
[were S&S].
Having heard the testimony, I fully agree with the inspector
on every finding he made. I conclude from the testimony
30 FMSHRC 1151

the inspector indeed smelled rubber and oil getting hot as
he approached the belt. His testimony in this regard was
unequivocal. I likewise conclude he saw all eight
places where the belt was rubbing the belt hangers, and he
touched [the hangers] and confirmed ... [they] were hot.
Even Mr. Thacker[,] [the company's chief electrician,]
agreed the hangers were warm. Moreover, there was
no showing Mr. Thacker touched the same hangers as
... [Inspector] Fleming . : . . The hangers [were] hot
enough to burn ... [Inspector] Fleming's ungloved
hand had he touched the hangers for a longer time[.]
[This establishes] them as ignition sources, in my
op1ruon.
The hangers did not need to be glowing to present a · ·
reasonably likely hazard. The hot hangers existed in the
immediate vicinity of fl.oaf coal ·dust accumulations about
which ... [Inspector] Fleming ... persuasively
testified. Not only did he describe the color and the
location of the float coal dust, he noted he was able to put
it into suspension by kicking it or otherwise by touching
it. His testimony was not refuted in this regard.
The accumulated float coal dust was a violation of
[s]ection 75.400; and in combination with the hot hangers,
created a reasonably likely scenario for a mihe fire or ex- ·
plosion. Moreover, the lack of ventilation in the cited area
ensured any mine fire niight not be detected by the CO
sensors until it had gotten out of control. And if the float
coal dust propagated an explosion, the result Would ...:
[have been] even more severe .than a fire.
I agree with the inspector; all miners [on] the section were
endangered as werethe belt examiners and,the scoop
operators who traveled by or through the area. As mining
continued, I believe burns and smoke inhalation were a
reasonably likely result for these miners. Thus ... the
violations were not only S&S, they were [also] serious.
In reaching this conclusion I have given no consideration
to the strings of shredded belt material embedded around
the rollers, nor have I considered the testimony of Mr.
Thacker that .a pin might have ... come out of a defective
belt splice and ... thus[,] stopped the belt. As
30FMSHRC1152

[c]ross [e]xamination revealed, it might [or it might not]
have done so before the reasonably likely result of the
violations . . . . There is really no way to know.
Finally, I do not find the fact Rockhouse had miners
monitoring the belt and the ventilation tq be ...
(determinative]. The men might have detected the conditions in time or ... [they] might not. [Again,] there is
... no way to know. And in the event of an explosion
or fire[,] the [miners] ... would only be able to try to
contain an already extremely dangerous situation.
For all of these reasons, I affirm the inspector's findings
of violation [and] his S&S findings, and I conclude the
violations were serious. I also find, pursuant to
(c]ounsel[']s agreement, that they were the result of
[Rock.house's] moderate negligence.
Tr. 1105-1109.
KENT 2008-1554-R
CITATION NO.
8216072

DATE
August 25, 2008

.. 30 C..F.R. §
75. l 725(a) .

Counsel for Rockhouse stated the company wished to withdraw its co11test. I approved
the withdrawal and dismissed the case. Tr. 23-24.
KENT 2008-1556-R
CITATION NO.
8216073

DATE
August 25, 2008

30 C.F.R. §
75.400

Counsel for Rockhouse stated the company wished to withdraw its contest. l approved
the withdrawal and dismissed the case. Tr. 24.
KENT 2008-1556-R
CITATION NO.
8216075

DATE
August 25, 2008

30 C.F.R. §
75.1725(a)

Counsel for Rockhouse stated the company wished to withdraw its contest. I approved ·
the withdrawal and dismissed the case. Tr. 24.

30FMSHRC 1153 ·

KENT 2008-1557-R
DATE

CITATION NO.
8216082

September 2, 2008

30 C.F.R. §
75.503

Counsel for Rockhouse stated the company wished to withdraw its contest. I approved
the withdrawal and dismissed the case. Tr. 412-413.

KENT 2008-1558-R
CITATION NO.
8216083

DATE
September 2, 2008

30 C.F.R. §
75.202(a)

Counsel for Rockhouse stated·the company' wished to withdraw its c·orttest. 12 Tr. 828.

·KENT 2008-1559-R
CITATION NO.
8216084

DATE
September 3, 2008

30 C.F.R. §
75.1403

The citation states in part:
The sanding devices provided for the . . . # 14 rail mounted
mantrip ... are not being mamtained in an operative condition.
When tested, [two] of the sanding mechanisms failed to
operate on the end facing the outside. The track travelway
this equipment is operated on has steep terrain, sharp turns,
and is frequently wet from moisture due to the humidity
during this time of year. This condition exposes the
occupants of this mantrip to hazards associated with not
maintaining traction and/or control while in operation ·
3 shifts per day.
Gov't Exh. 16. ·
The citation alleges the cited condition was a violation of Notice to Provide Safeguards
No. 4509445, issued at the mine on February 27, 1996. Id. The requirements of section 75.1403
have been set forth above.
With regard to the citation, I stated:

12

1 neglected to approve the withdrawal and dismiss the case on the record. I will do so at
the end of this decision.
30 FMSHRC 1154

Inspector Fleming allege[s] two [sanding] devices ...
[on a mantrip] ... were not maintained in opera[ble]
condition; [in] that the holes in the bottom of the sand
reservoirs were packed with mud and wet sand.
Assuming that an S&S violation may be cited for a
violation of [s ]ection 75.1403, I conclude Inspector
Fleming's testimony regarding the manner in which he
asked the chief electrician to activate the cited sanders and
the [sanders'] resulting malfunction[- ] testimony that was
not refuted [- ] establishes the violation.

I also find the violation was S&S. Inspector Fleming's
testimony was simply more credible to me than that
offered by Rockhouse.
Mr. Williamson, Rockhouse's safety director, agreed with
Inspector Fleming that there were two pronounced dips in
the track bed ... [t]he mantrip had to travel ... as well as at
least once pronounced S curve. I ~o not find Mr. Williamson's
testimony[,] that in most instances the sanders were used only
when the track was wet[,] to be determinative ... because it is
clear to me wet track was not an uncommon occurrence at this
mme.
Moreover, while I believe increased efforts to achieve
compliance in response to a potential notice ... of pattern of
violations can be relevant when determining the S&S
nature of [a] violation, I [find] Rockhouse's efforts to
establish its heightened compliance deficient. It would have
been much more persuasive ... ifRockhouse had a .miner .
who actually carried out the [asserted increased] inspections of
the sanders ... testifIY].
The man trip was energized [when the inspector saw it]. It
was reasonable for Mr. Fleming to assume it would be used
... [in the condition] he found it as mining continued. And .
as mining continued, the mantrip would have encountered
places where the outby sanders were required [to be used];
most likely .. wet rails in the dips ... [or] on an S curve [where]
the track was wet. .
The lack of operable sanders subjected those then riding
in the mantrip to injuries from a derailment or a collision.
Contusions an~/or fractures were likely to result. For aJl of
30 FMSHRC 1155

these reasons I find the violation was both S&S and serious.
I also find, pursuant to [the] agreement of[counsels], that
Rockhouse's negligence in causing the violation was
low.
Tr. 1109-1112.

KENT 2008-1616-R
CITATION NO.

DATE

30 C.F.R. §

8216088

September 8, 2008

75.202(a)

The citation states in part:
The roof and ribs of areas where persons work and travel are
not being supported or otlierwise controlled to protect persons
from hazards related tO falls of the roof, ribs or coal/rock
bursts along the track travel way on the ... # 2 belt conveyor.
Portions of loose ribs are present along this track travelway
(Southeast Mains) beginning at Break# 25 (near the dip) and
extending inby to the ... #2 belt conveyor belt drive
approximately rs crosscuts inby. These loose.portions of ribs
are at various locations and are gapped away from the coal/
rib line, leaning out toward the track. The average height
of these areas . .. [is] 6 feet, with the top half being predominantly rock. This condition exposes employees who
travel these areas·to hazards associated with falls of the roof
and ribs on a daily basis.
Gov't Exh. 13; Gov't Exh." 16.
Section 75.202(a) requires "[t]he roof, face and ribs of areas where persons work or
travel" to be "supported or otherwise controlled to protect persons from hazards related to falls of
the roof, face and ribs and coal or rock bursts."
With regard to the citation, I stated:
The loose ribs [along the track] were at intermittent locations
where the ribs had gapped away from the coal rib line. The
inspector found the condition constituted a violation of ...
[s]ection 75.202(a), which requires [in part that the] ribs
... where persons work or travel . .. be supported to
protect those persons from falls of the ribs. The inspector
also found that the [condition was an] ... [S&S) contribution

30 FMSHRC 1156

to a mine safety hazard.
I accept the inspector's description of the cited ribs as in places .
being gapped and leaning out. I also accept his testimony that
the leaning ribs could pitch [out] and fall. And[,] in fact, a fall in
a portion of the cited area could create a domino effect, pulling
down the entire gapped rib. I conclude from the inspector's
testimony the violation existed as charged. I further find the
violation was ... [S&S] and was serious.

I believe [the testimony ofRockhouse's belt foreman, Benjamin
Workman, that] ... he tried manually to pull down some of the ribs
with a slate bar after the violation was cited. And when this failed ...
[he and his crew] had to resort to using a forklift. But while this
perhaps indicates the stability of the portions of the ribs on which
... [Mr. Worlanan] worked, it does not speak to all of the cited and
gapped ribs .... Mr. Workman [did not] testify he tried to pull
down all of the cited ribs. Further Mr. Workman's testimony
does not take account of the ...[effect of) time on the ribs as
mining continue[d].
The most reasonable assumption to make - and [it is] one I ...
make - is that without further support, the ribs would have ·
continued to deteriorate until they fell. In making this finding[,]
I note the grill work or fencing installed on the ... [roof
and ribs] to· prevent the fall of ... draw rock[,] ... [but the
grill work and fencing] did not cover all areas of the gapped ribs.
Indeed, it covered veryHttle. J'he testimony revealed the cited.
area was ·traveled by miners both on foot and in vehicles. These
miners~ especially those on foot, were, in my opinion, reasonably
likely to be struck by falling pieces of the rib.

I .. ·. find [compelling] Inspector Fleming's testimony that belt
examiners who walked the cited area would walk ... as the
inspector put it, [in areas] of ["]least resistance["]. This
observation reflects a truism of human nature. And since some
of [the] areas of ... ["]least resistance["] ... were bound to be close
to the ribs, I find the belt examiners in particular were reasonably
likely to be injured:
I will add that while those riding in vehicles were protected by
canopies to a certain extent, they were also subject to a hazard.
As I understand the testimony, not all vehicles traveling in the
cited area were equipped with canopies. And even those that were

30 FMSHRC 1157

had open sides.
Finally, being hit by falling ·ribs was reasonably likely to cause
a serious injfily, including cuts and broken bones. I also
note ... the .violation was the result of the operator's low
negligence.

·will

Tr. 1024-1027 . .
KENT 2008-1617-R
CITATION NO.
8216089 .

DATE
30 C.F.R. § .
· September 8, 2008 ' .· 75~202(a)

Counsel fo~ Ro.ckhous·e ·stat~d the company wished to withdraw its contest. I approved
the withdrawal and dismissed the case. Tr.829, 831 .
ORDER
The foregoing considered, it IS ORDERED that Citations No. 8216019, 8216020,
8216025, 666086<'.?, 6660753, 8.216067, 8216068, 8216084 ap.d 821.6088 ARE AFF1RMED.
The contests ARE DENlED and the cases ARE DISMISSED.
..
.
It IS FURTHER ORl>ERED that CitatiOns No. 8216084 and 8216033 ARE
. MODIFIED to delete the S&.S findings. The contests ARE GRAN,TED,IN. PART apd the
.
.
. . . .· , '. . . . . .
cases ARE DISMISSED.
.

.·

. ..

.

·"'.

It IS FURTHE~ ORDERED thaf Cifatiop No. 66657618 IS MODIFiED to delete the
S&S finding and to ch~ge the.injury or illness findmg to "uilllkely." Th~ con~est IS
GRANTED IN PART and the case IS DISMISSED.
.
·
.

Further, the Secretary IS O.RDERED to modify Citation No. 666576,19 to a "non-S&S
citation" as agreed to at the hearing. The contest IS.GRANTED IN PAI~.r~ ·and upon
modification of the citation, the case IS DISMISSED. Tr. 826. .
.
..
Finally, bas.ed on the approved withdraw~! orRockhouse's conte~ts for Cit~tions No.
8216034,6660752,666576t7,8216001,8216012,8216013;8i16015; 82.16o82,8216083and
8216089, the contests ARE DENIED and the cases ARE DISMiSs:ED. ··

.

.

Administrative Law Judge
30 FMSHRC 1158

Distribution: (Certified Mail)
Brian W. Dougherty, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456
Carol Ann Marunich, Esq., Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Suite 310,
Morgantown, WV 26501
/ej

30 FMSHRC 1159

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N.W., SUITE 9500
WASHINGTON, D.C. 20001
(202) 434-9958

December 23, 200~ ·

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 2006-654
A.C. No. 46-08801 -087351-01

Petitioner

v.
ARACOMA COAL COMPANY, INC.,
Respondent

Docket No. WEVA 2006-655
A.C. No. 46-08801 -087351-02
Docket No. WEVA 2006-656
A.C. No. 46-08801-087351-03
Docket No. WEVA 2006-657
A.C. No. 46-08801-087351-04
Docket No. WEVA 2006-658
A.C. No. 46-08801-087351-05
Docket No. WEV A 2006-660
A.C. No. 46-08801 -087351-07
Docket No. WEV A 2006-734
A.C. No. 46-08801-090231-01
Docket No. WEVA 2006-735
A.C. No. 46-08801-090231-02
Docket No. WEVA 2006-857
A.C. No. 46-08801-092750-01
Docket No. WEVA 2006-858
A.C. No. 46-08801-092750-02
Docket No. WEVA 2006-931
A.C. No. 46-08801-094139
Docket No. WEVA 2007-36
A.C. No. 46-08801-097671-01
Docket No. WEVA 2007-37
A.C. No. 46-08801-097671-02

30 FMSHRC 1160

Docket No. WEVA 2007-38
A.C. No. 46-08801-097671-03
Docket No. WEVA 2007-138
A.C. No. 46-08801-100295-01
Docket No. WEVA 2007-139
A.C. No. 46-08801-100295-02
Docket No. WEVA 2007-215
A.C. No. 46-08801-010373
Docket No. WEVA 2007-308
A.C. No. 46-08801-110410
Docket No. WEV A 2007-354
A.C. No. 46-08801 -107489-01
Docket No. WEVA 2007-355
A.C. No. 46-08801-107489-02
Docket No. WEVA 2007-356
A.C. No. 46-08801-107489-03
Docket No. WEVA 2007-357
A.C. No. 46-08801-107489-04
Docket No. WEVA 2007-358
A.C. No. 46-08801-107489-05
Docket No. 'WEVA 2007-372
A.C. No. 46-08801-112912
Docket No. WEVA 2007-380
A.C. No. 46-08801-114238-01
Docket No. WEVA 2007-381
A.C. No. 46-08801-114238-02
Docket No. WEV A 2007-444
A.C. No. 46-08801-115168-01
Docket No. WEV A 2007-446
A.C. No. 46-08801-115168-03
30FMSHRC 1161

Docket No. WEVA 2007-447
AC. No. 46-08801-116221
Docket No. WEVA 2007-647
A.C. No. 46-08801-121791-02
Docket No. WEVA 2007-648
A.C. No. 46-08801-121791-03
Docket No. WEVA 2007-649
A.C. No. 46-08801-121791-04
Docket No. WEVA 2007-650
A.C. No. 46-08801-121791-01
Docket No. WEVA 2007-813
A.C. No. 46-08801-124353-01
Docket No. WEVA 2007-814
A.C. No. 46-08801-124353-02
Docket No. WEVA 2007-815
A.C. No. 46-08801-124353-03
Docket No. WEVA 2007-816
A.C. No. 46-08801-124353-04
Docket No. WEVA 2007-817
A.C. No. 46-08801-124353-05
Docket No. WEV A 2008-39
A.C. No. 46-08801-126529
Docket No. WEVA 2008-225
A.C. No. 46-08801-128823
Docket No. WEVA 2008-322
A.C. No. 46-08801-131178
Docket No. WEVA 2008-346
A.C. No. 46-08801-131178-02
Docket No. WEVA 2008-359
A.C. No. 46-08801-133380-01
30 FMSHRC 1162

Docket No. WEV A 2008-360
A.C. No. 46-08801-133380-02
Docket No. WEVA 2008-361
A.C. No. 46-08801-133380-03
Docket No. WEVA 2008-362
A.C. No. 46-08801-133380-04
Docket No. WEVA 2008-363
A.C. No. 46-08801-133380-05
Docket No. WEVA 2008-364
A.C. No. 46-08801-133380-06
Docket No. WEVA 2008-365
A.C. No. 46-08801-133380-07
Docket No. WEV A 2008-366
A.C. No. 46-08801-133380-08
Docket No. WEVA 2008-524
A.C. No. 46-08801-135723
Docket No. WEVA 2008-659
A.C. No. 46-08801-138996-01
Docket No. WEV A 2008-660
A.C. No. 46-08801-138996-02
Docket No. WEVA 2008-896
A.C. No. 46-08801-142965-01
Docket No. WEVA 2008-897
A.C. No. 46-08801-142965-02
Docket No. WEVA 2008-898
A.C. No. 46-08801-142965-03
Docket No. WEVA 2008-899
A.C. No. 46-08801-142965-04
Docket No. WEV A 2008-900
A.C. No. 46-08801-142965-05
30 FMSHRC 1163

Docket No. WEVA 2008-901
A.C. No. 46-08801-142965-06
Docket No. WEVA 2008-902
A.C. No. 46-08801-142965-07
Docket No. WEVA 2008-1055
A.C. No. 46-08801-146530-01
Docket No. WEVA 2008-1056
A.C. No. 46-08801-146530-02
Docket No. WEVA 2008-1057
A.C. No. 46-08801-146530-03
Docket No. WEVA 2008-1058
A.C. No. 46-08801-146530-04
Docket No. WEVA 2008-1059
A.C. No. 46-08801-146530-05
Docket No. WEVA 2008-1060
A.C. No. 46-08801-146530-06
Docket No. WEVA 2008-1061
A.C. No. 46-08801-146530-07
Docket No. WEV A 2008-1062
A.C. No. 46-08801-146530-08
Docket No. WEVA 2008-1063
A.C. No. 46-08801-146530-09
Docket No. WEVA 2008-1222
AC. No. 46-08801-148658
Docket No. WEVA 2008-1292
A.C. No. 46-08801-149961-01
Docket No. WEVA 2008-1293
A.C. No. 46-08801-149961-02
Docket No. WEVA 2008-1367
A.C. No. 46-08801-151759
30 FMSHRC 1164

Docket No. WEVA 2008-1475
A.C. No. 46-08801-153619
Docket No. WEVA 2008-1535
A.C. No. 46-08801-155207
Docket No. WEVA 2008-1577
A.C. No. 46-08801-155441-01
Docket No. WEVA 2008-1578
A.C. No. 46-08801-155441-02
Docket No. WEVA 2008-1622
A.C. No. 46-08801-155953

Aracoma Alma Mine # 1
Mine ID 46-08801
Docket No. WEV A 2006-803
AC. No. 46-08802-090232-01
Docket No. WEVA 2006-804
A.C. No. 46-08802-090232-02
Docket No. WEVA 2006-805
A.C. No. 46-08802-090232-03
Docket No. WEV A 2006-806
A.C. No. 46-08802-090232-04
Docket No. WEV A 2006-856
A.C. No. 46-08802-092751
Docket No. WEVA 2007-163
A.C. No. 46-08802-097672-01
Docket No. WEVA 2007-164
A.C. No. 46-08802-097672-02
Docket No. WEVA 2007-182
A.C. No. 46-08802-100296
Docket No. WEVA 2007-304
A.C. No. 46-08802-010749-01
30 FMSHRC 1165

Docket No. WEVA 2007-305
A.C. No. 46-08802-010749-02
Docket No. WEVA 2007-525
A.C.No.46-08802-117552
Docket No. WEVA 2007-818
A.C. No. 46-08802-124354-01
Docket No. WEVA 2007-819
A.C. No. 46-08802-124354-02
Docket No. WEVA 2008-27
A.C. No. 46-08802-126530
Docket No. WEVA 2008-357
A.C. No. 46-08802-133381-01
Docket No. WEVA 2008-358
A.C. No. 46-08802-133381-02
Docket No. WEVA 2008-525
A.C. No. 46-08802-135724
Docket No. WEVA 2008-903
A.C. No. 46-08802-142966-01
Docket No. WEVA 2008-904
A.C. No. 46-08802-142966-02
Docket No. WEVA 2008-905
A.C. No. 46-08802-142966-03

'..

Docket No. WEVA 2008-1054
A.C. No. 46-08802-146531
Docket No. WEVA 2008-1291
A.C. No. 46-08802-149962
Docket No. WEVA 2008-1567
A.C. No. 46-08802-155442-01
Docket No. WEVA 2008-1568
A.C. No. 46-08802-155442-02
30 FMSHRC 1166

Hemshaw Mine
Mine ID 46-08802

DECISION APPROVING SETTLEMENT
ORDER TO PAY
Appearances: Edward Clair, Esq.; Douglas White, Esq.; Heidi Strassler, Esq.; Keith Bell,
Esq.; Jerald Feingold, Esq.; W. Christian Schumann, Esq.; Francine Serafin,
Esq.; Office of the Solicitor, U.S. Department of Labor, for the Secretary of
Labor
Mark Heath, Esq., for the Respondent
Before:

Judge Lesnick

These cases are before me upon petitions for assessment of the civil penalties under
section 105(d) of the Federal Mine Safety and Health Act of 1977. These proceedings
consist of 102 penalty dockets and 1,302 citations and orders. The parties have filed a joint
motion to approve a global settlement of citations incorporated in the above captioned
dock~tS with a total proposed penalty of $2,806,027. The parties propose to reduce the tot'al
penalty to $1,700,000. 1 The alleged violations in these proceedings involve several
mandatory standards and include 25 violations designated as contributory to the January 19,
2006, fire at Aracoma's Alma Mine #1 that resulted in the death of two miners. In relation to
the civil penalty settlement of the designated contributory violations, the Secretary
recognizes.that Aracoma has agreed to pay the United States an additional $2,500,000 in
fines for criminal violations related io the fire. I held a hearing in this matter on December
22, 2008, limited to issues raised in the joint motion.

In support of the proposed settlement, the parties agree that Aracoma will (outside the
pattern of violations procedures set forth at 30 C.F.R. Part 104) be given a one-tim.e
opportunity to voluntarily provide MSHA with plans to ·reduce and/or maintain .the rate of
Significant and Substantial ("S&S") violations at both the Alma Mine #1 and the Hemshaw
Mine to a rate at or below 125% of the national S&S issuance rate at all underground
bituminous coal mines during that quarter. 2 MSHA will monitor the S&S issuance rate
1

The civil penalty is to be apportioned in payment of each covered citation arid order in the
same proportion as $1,700,000 is to the total assessment of$2,806,027.

2

Under this provision, an S&S reduction plan adopted at the Alma Mine #1 and/or Hernshaw
Mine will remain in effect only as long as the mine remains in immediate jeopardy of
receiving a potential pattern warning letter after the plan's adoption. Upon the first MSHA
pattern review in which it is determined that either mine is no longer in jeopardy of receiving
a potential pattern warning letter because the mine does not meet the screening criteria set
30 FMSHRC 1167

quarterly commencing with the first full calendar quarter beginning after this settlement
becomes final, commencing April 1, 2009.
The parties acknowledge that the goals for the Alma Mine #1 and the Hemshaw Mine
are to reduce the number of S&S violations to a level at which the mines are not in jeopardy
of receiving a potential pattern warning letter. The Alma Mine #1 goals are based on an
incremental 30% reduction from the 15.6 S&S citations and orders issued per 100 on-site
inspection hours at the mine during the baseline 24 months ending on the last day of
June 2008. The goals for the Alma Mine #1 are set forth below:
First Quarter

10.9

Second Quarter

7.6 or 125% of the National Average for all
Underground Bituminous Coal Mines this Quarter,
whichever is higher.

Each Subsequent Quarter

125% of the National Average for all Underground
Bituminous Coal Mines this Quarter

The S&S issuance rate for all underground bituminous coal inines during the baseline
24 months ending on the last day of June 2008 was 7.1 issuances per 100 on-site inspection
· hours. The Hemshaw Mine's S&S is·s uance rate per 100 on-site inspection hours during the
24 months ending on the last day of June 2008 was 8.9. The Hemshaw Mine short-term goal
is to achieve and/or maintain an S&S issuance rate of 125% of the 7.1 national rate, which is
8.9 S&S citations and orders issued per 100 on-site· inspection hours for the first full calendar
quarter beginning after this settlement becomes finai. Thereafter, MSiiA will measure the
mine's S&S issuance rate against the S&S issuance rate for all underground bituminous coal
mines each quarter. As long as the inine's S&S issuance rate remains at or below i25% of
the national average for that quarter, the mine will not be considered to be exhibiting a
potential pattern of violations.

If Aracoma chooses to adopt such voluntary S&S reduCtion plaris,. it wiU submit such
plans to MSHA Within 30 days of the date that this settlement becomes final. As lotig as each
mine continues to achieve and maintain the goals described above, that mllie will be able to
remain on its S&S reduction plan indefinitely and MSHA will forego issuing potential
pattern warning letters. If either mine fails to achieve the quarterly goals described herein,
that mine will be eligible to receive a potential pattern warning letter during all subsequent
MSHA ?attem of violation reviews. Under no circumstances will MSHA issue th es~ mines

forth at http://www.msha.gov/pov/POVScreeningCriteria.pdf, that mine will no longer
qualify for participation in the voluntary S.& S reduction plan described herein, and wili
thereafter be evaluated, along with alfother mines, under MSiiA's normal pattern of
violations process.

30 FMSHRC 1168

pattern of.violation notic.e s until after MSHA has instituted the p~ttern
procedures under
Part
.
.
.
104 against those mines ..

In further support of the motion, the parties aver.that in adQ.ition to the civil penalties
referenced above, Aracoma has reached an agreement with the United States Attorney for the
Southern District of West Virginia to enter a guilty plea to a ten-count information related to
the January 19, 2006, Alma Mine #1 accident, and to pay a criminal fine of Two and OneHalf Million Dollars ($2,500,000) to the l.Jnited States of America. In ad_qition, as a
condition of probation, Aracoma has agreed to pay restitution as ordered by the Court.
The parties. agree that, in light of the factual circumstances of the violations at issue,
defenses that might be available to Aracorna, ar.id the deterrent effect of both the civil
aJ:1:d criminal penalties that are to be ~mposed, the amounts agr~ed upon by ·the parties herein
are appropnate in light of the criteria set forth at.S_ection 11 O(i) of the Mine Act and
promote the purposes of the Act. ·The Secretary's assertions of the gravity.of.the violations
and Aracoma's negligence are set. forth in each of the citations and orders. Aracoma contends
that it might be able. to produce evidence to mitigate the Secretary's assertions and that
several citations and orders are overlc:~.pping as ·to penalties assessed. The parties agree that
such issues suppor:ts a reduction in the Secretary's
the uncertaillty of resolution of
proposed penalties. Although I held a hearing in this matter, it was not a full hearing on the
merits; consequen9y, I must rely upon counsels' reprt:sentations.

any

.

'

..

.

.

.

The parties also agree that th~violations were abated in good faith: They stipulate.
that Aracoma is a large operat?r which, prior to January 19, 2006, had an average history of
previous violations (see Exs. A attached to the penalty petitions), and that payment of the
proposed. penalty ~ount will not adversely affect Aracoma's ability to contirme ~11 business.
Based upon the review of the facts and the assessment procedures at 30 C.F.R. P~
100, the parties believe that the agreed upon civil penalty of $1,700,000 for the citations and
orders set forth in Addenda 1 and 2 of the settlement motion is reasonable, and that payment
of this amount will serve to effect the intent and purpose of the Act.
The parties note that, pursuant to this settlement agreement and the criminal plea
expected to be entered in District Court, Aracoma will pay the United States of America a
total of $4,200,000, all relating to conduct involved in the violations at issue here. The
criminal fine, in conjunction with the civil penalties, serves an additional deterrent purpose
and will encourage Aracoma's future compliance with the Mine Act and its mandatory
standards.
Although I grant the settlement motion proffered by the parties, I do so reluctantly.
The Commission has noted: "In determining whether to approve a proposed settlement a
judge must consider, inter alia, whether the amount proposed will accomplish the underlying
purpose of a civil penalty - to encourage and induce compliance with the Mine' Act
its
standards." Madison Branch Management, 17 FMSHRC 859; 867 (June 1995) (citations

and

30 FMSHRC.1169

' omitted). 3 Moreover, in reviewing settlement agreements, Commission Judges must also
"accord due consideration to the entirety of the proposed settlement package, including both
its monetary and non-monetary aspects ... [to] determine whether it is 'fair, adequate and
reasonable' ... [and] ·'adequately protects the public interest."' Id: at 868 (citations omitted).
Here, the parties have agreed that Aracoma will pay a Mine Act penalty of $1.7
million dollars, which is approximately 61 ·percent of the penalty originally proposed by the
Secretary. In contrast, the Chairman, Chief Executive Officer, and President of Massey
Energy Company, Aracoma's parent company, received in 2007 a compensation package that
probably exceeded $23 million. Massey CEO 'spay increased more than 35 percent in 2007,
Herald-Dispatch (Huntington, West Virginia), April 15, 2008.4 I question whether a penalty
of$1.7 million is adequate in light of Aracoma's enormous size as indicated by the
compensation of its leader. However, I must look beyond the Mine Act penalty and consider
"'all relief'' in determining whether the settlemenf"is consistent with the public interest."
17 FMSHRC ·at 868. I have thus ·determined that the p enalty to which the parties have ·
agreed is appropriate in light of the criminal sanctions Aracoma has agreed to pay in federal
court proceedings. Mot. at 8 (noting that Aracoma "has reached an agreement with the
United States Attorney for the Southern District West Virginia·to enter a· guilty plea to a
ten-count information related to the January 19, 2006, Alirla Mine #1 accident, and to pay a
criminal fine of Two and One-Half Million Dollars ($2~500,000) to the United States of
America. In addition, as a condition of probation, Aracoma has agreed to pay restitution as
ordered by the <;;ourt."). In approving the settlement motion, I have also deferred to the
prosecutorial discretion of the Secretary with the understanding that the settlement may
·
reflect problems of proof and questions of resourc~ allocation.

of

I have considered the representations and documentation submitted in this case, and I
conclude that the proffered settlement is appropriate under the criteria set forth in section
11 O(i) of the Act.

...

In Wilmot Mining Co., the Commission stated: as follows: ''' Settlement of contested issues
and Commission oversight of that process are integral parts of dispute resolution under the
Mine Act. 30 U.S.C. § 820(k) ... A judge's oversight of the settlement process ' is an
adjudicative function that necessarily involves wide discretion."' 9 FMSHRC 684 (1987)
(citations omitted).
3

4

The Herald-Dispatch article is available online at: . www.herald-dispatch.com/.
business/xl6156089Q7. The $23,000,000 estimate maybe conservative. The AFL-CIO
Executive Paywatch Database estimates that Massey's CEO received $37,059,912 in total
2007 compensation. http://www.aflcio.org/corporatewatch/paywatch/ceou/database.cfm.
30 FMSHRC 1170

WHEREFORE, the motion for approval of settlements is GRANTED, and it is
ORDERED that the operator pay a penalty of $1,700,000 within 60 days of this order. Upon
receipt of payment, this matter is DISMISSED.

Robert J. Lesnick
Chief Administrative Law Judge
Distribution:
Francine Serafin, Esq., U.S. Department of Labor; Office of the Solicitor, 1100 Wilson
Blvd., 22nd Floor West, Arlington, VA 22209-2296
Mark Heath, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Boulevard, East
P.O. Box 273, Charleston, WV 25321
fro, mvw

30 FMSHRC 1171

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVI EW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
.
wa·shington. DC 20001

202-434-9981/tele 202-434-9949/fax

November 24, 2008
CIVIL PENALTY PROCEEDINGS -

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

Docket No. LAKE 2008-68
A.C. No. 11-03054.-130199-01

v.

Docket N9. LAKE 2008-69
A.C. No. 11-03054-130199-02

BIG RIDGE, INCORPORATED,
Respondent

Mine: Willow Lake Portal

ORDER GRANTING RESPONDENT'S
MOTION FOR PARTIAL SUMMARY DECISION
AND DENYING THE SECRETARY'S MOTION TO AMEND
These cases are before me on petitions for assessment of civil penalties filed by the
Secretary of Labor against Big Ridge~ Inc., pursuant to section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 815(d). The specific citations at issue, Citation Nos.
6667365 and 6667393, allege significant and substantial ("S&S") violations of notices to provide
safeguards issued pursuant to the Secretary's regulations applicable to underground coal mines.
30 C.F.R. §§ 75.1403, 75.1403-S(g) and 75.1403-lO(i). Big Ridge filed a motion for partial
summary decision challenging the findings that the violations were S&S. The Secretary
countered by moving to amend the citations to allege violations of30 C.F.R. §75.1403. Big
Ridge opposed the motion to amend, contending that, even if allowed, the amendment would not
defeat its motion. For the reasons set forth below, I find that there exists no genuine issue as to
any material fact, and that Big Ridge is entitled to summary decision as a matter oflaw on the
issue of whether the violations can be designated S&S. 1 The Secretary's motions to amend the
citations will be denied. Accordingly, Citation Nos. 6667365 and 6667393 will be amended to
specify that the violations were not significant and substantial.

On September 20, 2007, a coal mine inspector for MSHA, inspected Big Ridge's Willow

1

Commission Procedural Rule 67 provides that a motion for summary decision shall be
granted if there is "no genuine issue as to any material fact" and that "the moving party is entitled
to summary decision as a matter oflaw." 29 C.F.R. § 2700.67(b).
30 FMSHRC 11 72

.. ·.:... .

~

'

Lake Portal Mine in Saline County, Iilinojs.: Willow Lake is a large underground mine that
extracts bituminous coal. During the inspection; he observed that the travelway along either side
of the 2-A belt conveyor was obstructed, and issued Citation No. 6667365, alleging a violation of
safeguard no. 7581365, which had been issued on May-s; 2005, based upon criteria set forth in
30 C.F.R. § 75.1403-5(g). Resp. Mot., Ex. 1. The mine was inspected again on October 5, 2007.
Muddy conditions"and.bottom irregularities 'On the 5-C travel road were:observed, for which
Citation No. 6667393 was issued, alleging a violation of safeguard no~ 7.581412~ which had been
issued on August 2, 2005, based upon criterfa'. set forth in 30 C.F.R. §75.i403-10(i). Resp. Mot.,
Ex. 2. Both citations allege that the violations were S&S.
Big Ridge timely contested tlie civit penalties assessed for the violations, and the
Secretary filed petitions for assessment of civil penalties. Big Ridge filed answers to the
petitions, and a motion for partial summary decision on the S&S issue. The Secretary opposed
the motion and moved to amend the citations. Big Ridge opposed the Secretary's motion, and
both parties filed supplemental memorarida oflaw on the issues.
.
.
Analysis
Big Ridge contends ·that, under· section 104(d)(l) of the Act, only violations of mandatory
safety standards can be'designated S&S and, because neither the safeguards allegedly violated,
nor sections 75.1403-5(g) and 75.1403-lO(i), are mandatory standards~ the violations cannot be
designated S&S. Big Itidge further argues that amending the citations to allege violations of
section 7 5 .1403 would have no effect ori the primary issue, because it was Cited for violating the ·
underlying safeguard notices, not for-violating section 75.1403.
· · The Secretary argues that the violatiOns alleged iri the citations are, in effect, violations of
30 C.F.R. ·§75.1403, which is taken directly from section 314(b) ofTitie III ofthe '.Act, ·and which:
grants her authority to issue safeguards. Because section 301(a) states that: ''The provisions of · .
sections 302 through 318 oftliis title shall bemterim mandatory safefy standards applicable to all
underground coal mines,"and section 802(1) defines the term "mandatory health or safoty
standard'' as "the interim mandatdfy health or safety standards established by titles II and III of
this Act," she contends that section 75~1403 is a mandatory safefy standard: Consequently; she
asserts that the violations can properly be designated S&S, and Big ·R idge's motion for partial
summary decision should be denied.
·
Section 104(d)(l) of the Act states, in pertinent part:

If, upon any inspection of a coal or other mine, an authorized representative of the
Secretary finds that there has been a violation ofany mandatory health or safety
standard, and ifhe also finds that, while the conditions created by such violation
do not cause imminent danger, such violation is ofsuch nature as co.uld
· significantly and·substantial/y contribute to the cause and effect ofa coal or other
mine safety or health hazard, ilnd if he finds such violation to be caused by an
30 FMSHRC 1173

unwarrantal;>le failure of such operator to comply with such mandatory health or
safety standards, he shall include such finding in any citation given to the operator
under this chapter. (emphasis added)
30 U.S.C. §814(d)(l). A "mandatory health or safety standard" is defined as "the interim
mandatory health or safety standards established by titles IT and ill of this Act, and the standards
promulgated pursuant to title I of this chapter." 30 U.S.C. 802(1).

In Cyprus Emerald Res. Corp., 195 F.3d 42 (D.C. Cir. 1999), the court held that the
language of section 104(d)(l) .was clear on its face, and permitted a design~tion of S&S only for
violations of mandatory health or safety standards. It reversed a holding by the. Commis~i~n
that
.
a violation of a P~ 50 regulation could be designated S&S, even though the regulation was not a
mandatory health or safety standard. The question to be decided, therefore, is whether or.not the
subject citations allege violations of mandatory health or safety standards.
Section 314 of the Act specifies a number of safety requirements for "Hoisting and.
Mantrips" equipment. For example, section 314(c) provides:
(c) Hoists shall have rated capacities consistent with the loads handled and
the recommended safety factors of the ropes used. An accurate and reliable .
indicator of the position of the cage, platform, skip, bucket, or cars shall be
provided. .
30 U.S.C. § 874(c). Those specific requirements are mandatory safety standards pursuant to
section 301(a) of the Act. 2 30 U.S.C. §§ 861 and 961(b).

In addition to the specific safety requirements in sub-sections 314(a) and (c) through (f),
section 3 l 4(b) grants the Secretary broad discretion to issue safeguards in order to guard against
all hazards attendant upon haulage and transportation in coal mining. Southern Ohio Cqal Co.,

.

2

Section 301(a) of the Act states:

The provisions of sections 302 through 3.18 of this title shall be interim mandat~ry
safety standards applicable to all underground coal mines until superseded in
whole or in part by improved mandatory safety standards promulgated by the
Secretary under the provisions of section 101 of this Act, and shall he enforced in
the same manner and to the same extent as any mandatory safety standard
promulgated under section 101 of this Act.

In addition, section 301(b)(l) of the Addendum to tbe.19.77 Mine Act; specified that "standards
and regulations under the Federal Coal Min~ Health and Safety Act of 1969 [30 U.S.C. § 801 et
seq.] which are in eff~ct on November 9, 1977, shall remain in effect as mandatory health or ·
safety standards" under the 1977 Act. 30 U.S.C. § 961(b).
30FMSHRC 1174

7 FMSHRC 509 (Apr. 1985) ("SOCCO I"); Southern Ohio Coal Co., 14 FMSHRC 1, 8 (Jan.
1992) ("SOCCO If'); Jim Walter Resources, Inc. , 7 FMSHRC 493, 496 (Apr. 1985).
Section 314(b) of the Act provides:
(b) Other safeguards adequate, in the judgment of an authorized
·representative of the Secretary, to minimize hazards with respect to transportation
of men and materials shall be provided.·
·
30 U.S.C. § 874(b). The Secretary promulgated the current regulations addressing safeguards in
1970. 30 C.F.R. §§ 75.1403 - 75.1403-11. The initial provision, section 75.1403, repeats,
verbatim, the ~anguage of section 314(b) of the Act. Section 75-1403-1 sets forth procedures for
the issuance of safeguards and explains that sections 75-1403-2 through 75.1403-11 set out the ·
criteria by which MSHA inspectors are to be guided in requiring safeguards on a mine-by,mine
basis. 3
§ 75.1403-1 ·General Criteria
(a) Sections 75-1404-2 through 75.1403-11 set out the criteria by which
an authorized representative of the Secretary will be guided in requiring other
safeguards on·a mine-by-mine·basis under§ 75~1403. Other safeguards may be
required.
(b) The authorized representative of the Secretary shall in writing advise· ·
the operator of a specific safeguard which is required pursuant to§ 75.1403 and
shall fix a time in which the operator shall provide and thereafter maintain such
safeguard. If the safeguard is not provided within the tiine fixed and if it is not
maintained thereafter, a notice shall be issued to the operator under section 104 of
the Act.
30 C:F.R. § 75.1403-l{a) and (b).
Under this regulatory scheme issuance of a notice to provide safeguard requires that an
inspector: (1) determine that there exists at the mine an actual transportation hazard not covered
by a mandatory standard; (2) determine that a safeguard is necessary to correct the hazardous
condition; and (3) specify the corrective ·measures that the safeguard should require. SOCCO II,
14FMSHRC at 8.

In SOCCO I, the Conunission discussed the unique nature of safegliards.

3

MSHA's Program Policy Manual recognizes thatthe guideline criteria set forth in the
regulations are not mandatory, arid that safeguard notices must address hazards that are not
covered by a mandatory safety standard: V MSHA, U.S. Dep't of Labor, Program Policy
Manual, Part 75, at 125 (2003).
30 FMSHRC H 75 :

[i]t is of paramount importance to recognize the crucial difference in the rules of .
interpretation applicable to mandatory standards promulgated by the Secretary and .
those applicable to 'safeguard notices' issued by [her] inspector ... Mandatory
standards are adopted through the notice and comment rulemaking procedures set
forth in section 101 of the.Mine Act. Section 314(b) of the Mine Act, on the other
hand, grants the Secretarya unique authority to create what are, in effec~,
mandatory.safety standards on a mine-by-mine basis without resorting to
otherwise required rulemaking procedures. We believe that.in o_rder to effectuate
its purpose properly, the exercise of this unusually broad grant of regulatory
power must be.bounded by a rule of interpretation more restrained than that
accorded promulgated standards.

SOCCO 1, 7 FMSHRC at 512.
A notice of safeguard is an order to comply with a specific safety requirement within a
fixed time frame, and to continue to comply with itthereafter. As orders_issued pursuant to
section 314(b) of the Act, they are enforceable under section 104(a) of the Act. Violations of a : .
safeguard are enforced by issuance section-1.04(a) citations and, upon ;:;in operator's failure to
timely abate a violation, by issuance of withdrawal orders pursuant:to section 104(b). While not
always consistent in use oflanguage, Commission decisions have.made clear that it is the
violation of the written safeguard that subjects an operator to liability for penalties and sanctions
imposed pursuant to sections 104(b) and 110 of the Act. . SOCCO I, 7 FMSHRC at 513 (operator
not given sufficient notice that c.onditions "would violate the underlying ~afeguard notice'-s
terms"); SOCCO II, 14 FMSHRC at .1 4 (on remand the judge should "dete.q nine whether the
safeguard was violated"). As the Secretary recognized in her papers_, "the actual issue to be
litigated ... is whether the operator complied with the underlyiQ.g safeguard." Sec'y Mem. of
Law at4.
The Commission, in its later-reversed Cyprus Emerald decision, discussed Mathies Coal,
the seminal case interpreting the S&S language. 4 It noted that the citation involved in Mathies
alleged a failure to comply with a safeguard notice, and that: ".A safeguard, because it is not
issued pursuant to the procedures set forth in section lOl(a) of the Mine Act, does not meet the
statutory definition of a mandatory health or safety standard." Cyprus Emerald Res. Corp., 20
FMSHRC 790, 808-09 n.22. (Aug. 1998). In reversing the Commission, the circuit court made
clear that regulations or other provisions that are not mandatory health or safety standards cannot
be designated S&S. The safeguards at issue in these cases were issued in 2005 by MSHA
inspectors, and are not mandatory safety standards promulgated pursuant to Title I of the Ac~.
Consequently, the subject.citations, which allege violation~ oftho_se safeguards, do not allege
violations of maridatory health or safety standards.
The Secretary argues that because section.3 l 4(b) of the Act, pursuant to which the

4

Mathies Coal Co., 6 FMSHRC 1(Jan.1984).
30 FMSHRC 1176

safeguards were issued, is included in Title III, which establishes mandatory safety standards,
that it is a mandatory safety standard. She has also moved to amend the citations to specify that
they allege violations of section 75.1403, the regulatory coU:nterpart to section 314(b) of the Act.
However, neither section 75.1403, nor section 314(b) of the Ad, establish mandatory standards
that could be violated by a mine operator. Section 314(b), as prevfously noted, is a grant of
regulatory authority to the Secretaiy. To hold that a specific written safeguard is a mandatory
safety standard, because the grant of regulatory authority to issue it is contained in Title ID of the
Act, would impremissably elevate form over substance.5 As the Commission observed in.its
Cyprus Emerald decision, safeguards are not mandatory health or safety standards. Regardless of
the regulatory or statutory provision referenced in the citation, the actual violation alleged is that
the operator failed to comply with a notice of safeguard issued by an MSHA inspector.
The Secretary has argued in a related case that holding that safeguard violations cannot be
S&S would deprive the Secretary of an important enforcement tool, and would be at odds with
Congress' intent to create a flexible mine-specific enforcement system responsive to the unique
hazards related to mine transportation.6 The same argument was· made, and rejected, in Cyprus ·
Emerald, where the court observed that section 107(a) imminent danger withdrawal orders,
section 104(a) citations and section 110 penalties provide "adequate" means of enforcement.7
195 F.3d at 46. Withdrawal orders, issued pursuant to section 104(b), also provide a powerful
tool to ensure that any violation of a safeguard is promptly reme~ied.' ·· ·
·
The Secretary also ~rgues that any ambiguity in the stafute'must be resolved by ·according
deference to her interpretation: However, as in Cyprus Emerald, the argument is rejected,
because the statutory language is not ambiguous. That section 314(b).is contained in Title ill of
the Act does not alter its fundamental nature, ·and transform the grant of regulatory authority into ·
a mandatory safety standard. To the extent that' ambiguity could be found, the Secretary's
attempted transformation of section 3 l 4(b) into a mandatory safety standard would be

In SOCCO //the Commissfon noted that section'3l~(b). "is contained in a section of
the statute that includes interim mandatory safety standards
hoisting and mantrips in
underground coal mines. Unlike other provisions of Title ill of the Mine act, section 314
contains few specific mandatory standards. The specific mandatory standards in section 314
concern hoists, brakes on rail equipment and automatic couplers." Id. at S.
5

for

6

Only mandatory health and safety standards can be enforced through the issuance of
withdrawal orders p~suant to section 104(d) ~f the Act. In addition, operators who engage in a
pattern ·o f cornrnitting S&S violations may be subject to enhanced enforcement provisions of
section 104(e) of the Act. 30 U.S.C. § 814(d) and (e).
1

hnminent danger withdrawal orders, issued pursuant fo section 107(a) of the Act, can
be issued to address immediately dangerous conditions, regardless of whether the danger violates
the Mine Act or the Secretary's regulations. Utah Power &Light, Co., 13 FMSHRC 1617, 1622
(Oct. 1991).
30 FMSHRC 1177

unreasonable.
The subject citations allege violations of safeguards issued by MSHA inspectors. They
do not allege violations of mandatory safety standards, and they cannot be designated S&S. 8
The Secretary's Motion to Amend the Citations
The Secretary has moved to amend Citation Nos. 6667365 and 6667393 to allege
violations of section 75.1403. She asserts that the amendments would more accurately reflect
the actual violations cited than references to the guideline criteria. The citations were issued on
the Secretary's standard "Mine Citation/Order" form, "MSHA Form 7000-3, Mar 85 (revised)."
That form contains a block numbered 9, entitled "Violation," section "C" of which reads:
"Part/Section of Title 30 CFR." In the space allowed, the inspectors inserted "75. 1403-5(g)" and
"75.1 403-lO(i)," respectively, the regulatory criteria that were, no doubt, used as guidance in
issuance of the safeguards. References to the actual safeguards alleged to have been violated are
made in block 14 of the forms, entitled: "Initial Action," where the specific safeguards are
identified by number and date of issuance.
The MSHA form is not well-suited to citing violations of safeguard provisions. While a
reference in block 9 to the Secretary's regulatory authority to issue safeguards might be
somewhat more appropriate than a reference to the guideline criteria, neither would be an
accurate description of the violation actually alleged. As noted above, the actual violations
alleged in the citations are that Big Ridge failed to comply with a specific notice of safeguard,
not that it failed to comply with a regulatory provision.
The Secretary's motions to amend the citations to allege violations of 30 C.F.R.
§ 75.1403, are denied. The proposed amendments would not accurately state the actual
violations alleged in the citations.

8

The Secretary has cited several Commission decisions upholding S&S designations of
safeguard violations. See, e.g., Arch ofKentucky, 20 FMSHRC 1321, 1330 (Dec. 1998).
However, the cases were all decided prior to the court's decision in Cyprus Emerald.
30 FMSHRC 1178

ORDER
Based upon the foregoing, The Secretary's Motions to Amend Citations are DENIED,
the Respondent' s Motion for Partial Summary Decision is GRANTED, and the gravity
designations of Citation Nos. 6667365 and 6667393 are AMENDED to "non-significant and
substantial."

Distribution:
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty
Avenue, Pittsburgh, PA 15222
Suzanne F. Dunne, Esq., Offic·e of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St., ·
gth Floor, Chicago, IL 60604
/sdb

·

30 FMSHRC 1179 ·

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

202-434-9981 /tele 202-434-9949/fax

December 4, 2008
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 2008-318
A.C. No. 36-05018-143487-01

V.

CUMBERLAND COAL RESOURCES, LP, :
Respondent

Mine: Cumberland

ORDER GRANTING RESPONDENT'S
MOTION FOR PARTIAL SUMMARY DECISION
This case is before me on a petition for assessment of civil penalties filed by the Secretary
of Labor against Cwnber]and Coal Resources, LP, pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(d). The specific citations at issue, Citation Nos.
7013038, 7025471, 7025962 and 7070887, allege significant and substantial ("S&S") violations
of notices to provide safeguards issued pursuant to the Secretary's regulations applicable to
underground coal mines. 30 C.F.R. § 75.1403. Cumberland filed a motion for partial summary
decision challenging the findings that the violations were S&S, and the Secretary filed a response
opposing Respondent's motion. For the reasons set forth below, I find that there exists no
genuine issue as to any material fact, and that Cumberland is entitled to summary decision as a
matter of law on the issue of whether the violations can be designated S&S. 1 Accordingly,
Citation Nos. 7013038, 7025471, 7025962 and 7070887 will be amended to specify that the
violations were not significant and substantial.

On October 4, 2007, a coal mine inspector for MSHA, inspected Cumberland Coal 's
Cumberland Mine, which is a large underground mine that extracts bituminous coal in Greene

1

Commission Procedural Rule 67 provides that a motion for summary decision shall be
granted if there is "no genuine issue as to any material fact" and that "the moving party is entitled
to summary decision as a matter oflaw.'' 29 C.F.R. § 2700.67(b). The undersigned
Administrative.Law Judge recently granted a virtually identical motion filed by mine operator
Big Ridge, Incorporated. Big Ridge Inc., Docket Nos. LAKE 2008-68 and LAKE 2008-69,
Order Granting Respondent's Motion for Partial Summary Decision and Denying the Secretary's
Motion to Amend, November 24, 2008.
30 FMSHRC 1180

County, Pennsylvania. During the inspection, he observed that a clear travelway of at least 24
inches was not being maintained along the 8 Butt coal conveyor belt walk side from the tail piece
outby for 25 foet, and issued Citation No. 7025471, alleging a violation of Safeguard No.
7083583, which had been issued on October 17, 2003. Resp. Mot. Ex. 2. On November 5, 2007,
an inspector observed that a two foot clear walkway was not being maintained on the tight side of
the South Mains Beltline, for which Citation No. 7013038 was issued, also alleging a violation of
Safeguard No. 7083583. Resp. Mot. Ex. 1. That same day another inspector issued Citation No.
7025962, for failure to maintain a clear travel way at least 24 inches wide on both sides of the
Cumberland West section (MMU 020-0) belt feeder, in violation of Safeguard No. 7025484,
issued on October 4, 2007. Resp. Mot. Ex. 3. On December 11 , 2007, an inspector observed that
Cumberland had failed to maintain a clear travelway of at least 24 inches along the walk side of
the feeder on the 029-0 mmu section, and issued Citation No. 7070887, which also alleged a
violation of Safeguard No. 7025484. Resp. Mot. Ex. 4. All citations allege that the violations
were S&S.
Cumberland timely contested the civil penalties assessed for the violations, and the
Secretary filed a petition for assessment of civil penalties. Cumberland filed an answer to the
petition, and a motion for partial summary decision on the S&S issue. The Secretary opposed the
motion.

Cumberland Coal contends that, under section 104(d)(l) of the Act, only violations of
mandatory health and safety standards can be designated S&S and, because neither the
safeguards allegedly violated, nor section 75.1403, are mandatory standards, the violations
cannot be designated S&S.
The Secretary argues that 30 C.F.R. §75.1403 is taken directly from section 314(b) of
Title III of the Act, which grants her authority to issue safeguards. Because section 301(a) states
that: "The provisions of sections 302 through 318 of this title shall be interim mandatory safety
standards applicable to all underground coal mines," and section 802(1) defines the term
"mandatory health or safety standard" as "the interim mandatory health or safety standards
established by titles II and III o:fthis Act," she contends that section 75.1403 is a mandatory
safety standard. Consequently, she asserts that the violations can properly be designated S&S,
and Cumberland Coal's motion for partial summary decision should be denied.
Section 104(d)(l) of the Act states, in pertinent part:
If, upon any inspection of a coal or other mine, an authorized representative of the
Secretary finds that there has been a violation ofany mandatory health or safety
standard, and if he also finds that, while the conditions created by such violation
do not cause imminent danger, such violation is ofsuch nature as could
significantly and substantially contribute to the cause and effect ofa coal or other

30 FMSHRC 1181

mine safety or health hazard, and if he finds such violation to be caus_e d by an
unwarrantable f~ilure of such operator to comply with such mandatory health or
safety standards,. he shall include such finding in any citation. given to the operator
under this chapter. (emphasis added)
30 U.S.C. §814(d)(l). A "mandatory health or safety standard" is defined as ''the inte.r im
mandatory health or safety standards established by titles IT and III of this Act, and the standards
promulgated pursuant to title I of this chapter." 30 U.S.C. 802(1).
In Cyprus Emerald Res. Corp., 195 F.3d 42 (D.C. Cir. 1999), ~he court held that the
language of section 104(d)( 1) was clear on its face, and permitted a designation of S&S only for .
violations of mandatory health or safety standards. It reversed a holding by the CoJJ11Ilission that
a violation of a Part 50 i:egulation could be designated S&S, even though the regulation was not a
mandatory health or safety standard. The question to.be decided, therefor~, is whether or not. the
subject citations allege violations of mandatory health or safety standards.
Section 314 of the Act specifies a number of safety requirements for "Hoisting and
Mantrips" equipment. For example, section 314(c) provides:
(c) Hoist$ shall have rated capacities consistent with the loads handled and
the recommended safety factors of the ropes used. An accurate and reliable
indicator of the position of the cage, platform, skip, bucket, or cars shall be
provided.
30 U.S.C. § 874(c). Those specific requirements are mandatory safety standards pursuant to
section 301(a) of the Act. 2 30 U.S.C. §§ 861and961(b).

In addition to the specific safety requirements in sub-sections 314(a) and (c) through (f),
section 3 l 4(b) grants the Secretary broad discretion to issue safeguards in order to guard against
2

Section 301(a) of the Act states:

The provisions of sections 302 through 318 of this title shall be interim mandatory
safety standards applicable to all underground coal mines until superseded in
whole or in part by improved mandatory safety standards promulgated by the
Secretary under the provisions of section 101 of this Act, and shall be enforced in
the same manner and to t~e same extent as any mandatory safety standard
promulgated under section 101 of this Act.

In addition, section 301(b)(l) of the Addendum to the 1977 Mine Act, specified that "standards
and regulations under the Federal Coal Mine Health and Safety Act of 1969 [30 U.S.C. § 801 et
seq.] which are in effect on November 9, 1977, shall remain in effect as mandatory health or
safety standards" under the 1977 Act. 30 U.S.C. § 96l(b).
30 FMSHRC 1182

all hazards attendant upon haulage and transportation in coal mining.· Southern Ohio Coal Co.,
7 FMSHRC 509 (Apr. 1985) ("SOCCO !');Southern Ohio Coal Co., 14 FMSHRC 1; 8 (Jan.
1992) ("SOCCO If'); Jim Waller Resources. Inc., 7 FMSHRC 493, 496 (Apr. 1985).
Section 314(b) of the Act provides:
· (b) Other safeguards adequate, in the judgment of an authorized
representative of the Secretary, to minimize hazards with respect to transportation
of men and materials shall be provided.
30 U.S.C. § 874(b). The Secretary promulgated the current regulations addressing safeguards in
1970. 30 C.F.R. §§ 75.1403 - 75.1403-11. The initial provision, section 75.1403, repeats, .
verbatim, the language of section 314(b) of the Act. Section 7 5-1403-'- l sets forth·procedures for
the issuance of safeguards and explains that sections 75-1403-2 through 75.1403-11 set out the
criteria by which MSHA inspectors are to be guided in requiring safeguards on a mine-by-mine
basis.3

§ 75.1403-1 General Criteria
(a) Sections 75-1404-2 through 75.1403-11 set out the criteria by which
an authorized representative of the Secretary will be guided in requiring other
safeguards on a mine-by-mine basis under § 7 5 .1403. Other safeguards may be
required.
(b) The authorized representative of the Secretary shall in writing advise
the operator of a specific safeguard which is required pursuant to § 75 .1403 and
shall fix a time in which the operator shall provide and thereafter _maintain such
safeguard. If the safeguard is not provided within the time fixed and if it is not
maintained thereafter, a notice shall be issued to the operator under section 104 of
the Act.
30 C.F .R. § 7 5 .1403-1 (a) and (b). Under this regulatory scheme issuance of a notice to provide
safeguard requires that an inspector: (1) determine that there exists at the mine an actual
transportation hazard not covered by a mandatory standard; (2) determirie that a safeguard is
necessary to correct the hazardous condition; and (3) specify the corrective measures that the
safeguard should require. SOCCO II, 14 FMSHRC at 8:
·
In SOCCO I, the Commission discussed the unique natU.re of safeguards.

[i]t is of paramount importance to recognize the crucial difference in the rules _o f

3

MSHA's Program Policy Manual recognizes that the guideline criteria set forth iil the
regulations are n6t mandatory, aild that safeguard notices must address·hazards that are not
covered by a mandatory safety standard. V MSHA, U.S. Dep 't of Labor, Program Policy
Manual, Part 75, at 125 (2003).
·
30 FMSHRC 1183 ·

interpretation applicable to mandatory standards promulgated by the Secretary and
those applicable to 'safeguard notices' issued by [her] inspector ... Mandatory
standards are adopted through the notice and comment mlemaking procedures set
forth in section 101 of the Mine Act. Section 314(b) of the Mine Act, on the other
hand, grants the Secretary a unique authority to create what are, in effect,
mandatory safety standards on a mine-by-mine basis without resorting to
otherwise required rulemaking procedures. We believe that in order to effectuate
its purpose properly, the exercise of this unusually broad grant of regulatory
power must be bounded by a rule of interpretation more restrained than that
accorded promulgated standards.

SOCCO 1, 7 FMSHRC at 512.
A notice of safeguard is an order to comply with a specific safety requirement within a
fixed time frame, and to continue to comply with it thereafter. As orders issued pursuant to
section 314(b) of the Act, they are enforceable under section 104(a) of the Act. Violations of a
safeguard are enforced by issuance section 104(a) citations and, upon an operator's failure to
timely abate a violation, by issuance of withdrawal orders pursuant to section l04(b). While not
always consistent in use of language, Commission decisions have made clear that it is the
violation of the written safeguard that subjects an operator to liability for penalties and sanctions
imposed pursuant to sections 104(b) and 110 of the Act. SOCCO /, 7 FMSHRC at 513 (operator
not given sufficient notice that conditions "would violate the underlying safeguard notice's
terms"); SOCCO JI, 14 FMSHRC at 14 {on remand the judge should "determine whether the
safeguard was violated").
The Commission, in its later-reversed Cyprus Emerald decision, discussed Mathies Coal,
the seminal case interpreting the Act's S&S language.4 It noted that the citation involved in ·
Mathies alleged a failure to comply with a safeguard notice, and that: "A safeguard, becau.s e it is
not issued pursuant to the procedures set forth in section lOl{a) of the Mine Act, does not meet
the statutory definition of a mandatory health or safety standard." Cyprus Emerald Res. Corp.,
20 FMSHRC 790, 808-09 rt.22. {Alig. 1998). In reversing the Commission, the circuit court
made clear that regulations or other provisions that are 1:J.Ot mandatory health or safety standards
cannot be designated S&S. The safeguards at issue in this case were issued in 2003 and 2007 by
MSHA inspectors, and are not mandatory safety standards promulgated pursuant to Title I of the
Act. Consequently, the subject citations, which allege violations of those safeguards, do not
allege violations of mandatory health or safety standards.
The Secretary argues that when Congress passed the Act of 1977 it dire.c ted that the
standards and regulations under the Federal Coal Mine Health and Safety Act of 1969 shall
remain in effect as mandatory health or safety standards under the Act of 1977 until the Secretary
of Labor promulgates new or revised mandatory standards. As such, because no new or revised

4

Mathies Coal Co., 6 FMSHRC l (Jan. 1984).
30 FMSHRC 1184

standards were issued, section 75.1403 remains in effect as a mandatory safety standard. Sec'y
Resp. at 4. The Secretary further argues that because section 314(b) of the Act, pursuant to
which the safeguards were issued, is included in Title ill, which establishes mandatory safety
standards, that it is a mandatory safety standard. ·
Neither section 75.1403, nor section 314(b) of the Act, establish mandatory standards that
could be violated by a mine operator. Section 314(b), as previously noted, is a grant of
regulatory authority to the Secretary. To hold that a specific written safeguard is a mandatory
safety standard, because the grant of regulatory authority to issue it is contained in Title ill of the
Act, would impermissibly elevate form over substance.5 As the Commission observed in its
Cyprus Emerald decision, safeguards are not mandatory health or safety standards. Regardless of
the regulatory or statutory provision referenced in the citation, the actual violation alleged is that
the operator failed to comply with a notice of safeguard issued by an MSHA inspector.
The Secretary argues that holding that safegiiard violations cannot be S&S would deprive ·
the Secretary of an important enforcement tool, and would be at odds with Congress' intent to
create a flexible mine-specific enforcement system responsive to the unique hazards related to
mine transportation.6 The same argwnent was made, and rejected, in Cyprus Emerald, where the
court observed that section 107(a) imminent danger withdrawal orders, section 104(aj citations
and section 110 penalties provide "adequate" rrieans of enforcement.7 195 F.3d at 46.
Withdrawal orders, issued pursuant to section 104(b); also provide a powerful tool to ensiir~ that

s In SOCCO II the Commission noted that section 314(b) "is contained in a section of
the statute that includes interim mandatory sa~ety standards for hoisting and _mantrips in
underground coal mines. Unlike other provisions of Title ill of the Mine act, section 314
contains few specific mandatory standards. The specific mandatory standards in section 314
concern hoists, brakes on rail equipment and automatic couplers." 14 FMSHRC at 5. Th~ ·
Commission went on to note that the Secretary had recognized in a 1991 regulatory agenda, the
need for specific mandatory standards to protect miners from hazards associated with the hoi~ting
and transportation of persons and materials, and "strongly suggest[ed] that the safety of ·
underground coal miner:s would be better advanced by the pro~ulgation of m.andatory safety
standards a1med at eliminating transportation hazards. Id. t1:t 16. ·Such standards have Yt:'.t tQ be .
·
·
promulgated.
Only mandatory health and safety standards can be enforced through the issuari~e of
withdrawal orders pursuant to section 104(d) of the Act. In addition, operators who engage in a
pattern of committing S&S violations may be subject to enhanced enforcernent provisions of..
section 104(e) of the Act. 30 U.S.C: § 814(d) and (e).
·
6

7

Imminent danger withdrawal orders, issued pursuant to section 107(a) of the Act, can
be issued to address immediately dangerous conditions, regardless of whether the danger violates
the Mine Act or the Secretary's regulations. Utah Power & Light, Co., 13 FMSHRC 1617, 1622
(Oct. 1991).
30 FMSHRC 1185

any violation of a safeguard is promptly remedied.
The Secretary also argues that any ambiguity in the statute must be resolved by according
deference to her interpret~tion. However, as in Cyprus Emerald, the argument is rejected,
because the statutory language is not ambiguous. That section 3 l 4(b) is contained in Title ID of
the Act does not alter its fundamental nature, and transform the grant of regulatory authority into
a mandatory safety ~tandard. To the extent that ambiguity could be found, the Secretary's
attempted transformation of section 314(b) into a mandatory safety standard would be
unreasonable.
As noted above, the actual violations alleged in the citations are that Cumberland Coal
failed to comply with specific ~otices of safeguard issued by MSHA inspectors.. not that it failed
to comply with a regulatory provision. Therefore, they do not allege violations of mandatory
safety standards, and they cannot be designated S&S.8

ORDER
Based upon the foregoing, the Respondent's Motion for Partial Summary Decision is

GRANTED, and the gravity designations of Citation Nos. 7013038, 7025471, 7025962 and
7070887 are AMENDED to "non-significant and substantial." ·
·

(
'.

~;:r:L/
Michael E ielinski
Ad · · trative Law Judge

_____...,....

·,"-._

.

Distribution:

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340,' 40 I Liberty
Avenue, Pittsburgh, PA 15222
Gayle M. Green, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center,
Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
/sdb

8

The Secretary has cited several Com.mission decisions upholding S&S designations of
safeguard violations. See, e.g., Arch ofKentucky, 20 FMSHRC 1321, 1330 (Dec. 1998).
However; the cases were all decided prior to the court's decision in Cyprus Emerald.
30 FMSHRC 1186

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

December 10, 2008
CONTEST PROCEEDING

AGAPITO ASSOCIATES, INC.,
Contestant

Docket No. WEST 2008-1451-R
Citation No. 7697010; 7/24/2008
V.

Cra,ndall C.anyon Mine

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

Mille ID 42-01715.

ORDER GRANTING MOTION FOR RECONSIDERATION
ORDER GRANTING LIMITED STAY
This case is before me on a notice .o f contest filed by Agapito Associates, Inc. ("Agapito")
against the Secretary of Labor, acting thro.ugh the Mine Safety an~ Health Administration
("MSHA") pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 815 (the "Mine Act"). On September 3, 2008, the Secretary of Labor filed a motion to stay this
proceeding because the U.S. Attorney for the District of Utah is conducting a criminal
investigation into a fatal accident at the Crandall Canyon Mine (the "Mine"). The case involves
a citation issued to Agapito following the coal pillar failure at the Crandall Canyon Mine on
August 6, 2007, that resulted in the deaths of six miners. Agapito opposed the motion primarily
because it is not seeking an adjudication of the merits of the citation at this time. Instead, it is
seeking a ruling that it was not subject to Mine Act jurisdiction at the Mine. 1
By order dated September 12, 2008, I denied the Secretary's motion to stay. (30
FMSHRC _ ) Ori September 29, 2008, the Secretary filed a motion requesting that I . .
reconsider my order denying her motion to stay. The Secretary filed a brief to support her motion
and Agapito filed a brief in opposition. I granted the Secretary'~ request to file a reply to
Agapito's opposition and I granted Agapito's motion to file a sur-reply.

I. BRIEF SUMMARY OF THE PARTIES' ARGUMENTS
The Secretary argues that reconsideration is warranted for a number of reasons. First, she
argues that, by analogy, a recent U.S. Supreme Court precedent makes clear that whether Agapito
falls within the definition of "mine operator'' in section 3(d) of the Mine Act is an element of the
1

Agapito entered a "special appearance for the purpose of contesting the Federal Mine
Safety and Health Review Commission's jurisdiction over the Contestant pursuant to section 3(d)
of the" Mine Act.
··
·
·

30 FMSHRC 1187

claim rather than a question of subject matter jurisdiction. As a consequence, this issue should
not be adjudicated as a threshold matter but should be considered when adjudicating the merits of
the citation. The Secretary also contends that, although she issued a detailed accident
investigation report following the accident at the Crand~ll Canyon Mine, this report was not
written to resolve the .jssue as to whether Agapito was an independent contractor subject to the
requirements .of the Mine Act. fudeed, several key Agapito officials refused to be interviewed
during MSHA's investigation. As a consequence, Agapito's suggestion that the jurisdiction issue
should be resolved on the basis of her accident investigation report is not acceptable. Finally, the
Secretary states that the facts necessary to resolve th,e issue of Agapito's status as an independent
contractor will inexorably be intertwined with the facts necessary to establish that a violation of a
safety standard occurred.2 She believes that Agapito's arguments require a close examination of
the services it provided to the mine owner/operator. 3 The Secretary now asks that the case be
stayed for 90 days, rather than for an indefinite period, and she states that she will provide a
status report on the progress of the criminal investigation at that time.
Agapito argues that re~onsideration of my.order denying the motion for a stay is not
warranted. There ha~ been no change in controlling law, the order did not contain a clear error of
law, and the order will not result in any injustice. Agapito notes that I followed the guidelines set
forth in Buck Creek Coal, 17 FMSHRC 500 (April 1995) when I determined that the case should
not be stayed.
Agapito argu~s that none of the Secretary's arguments necessitate reconsideration
.
.
of my original order denying the in.otion for stay. Agapito maintains that the Secretary's
jurisdictional authority to.cite it as an independent contractor is a threshold matter. In addition,
the narrow issue of whether Agapito .was an independent contractor can be resolved without
interfering with the criminal investigation.
..

II. RESOLUTION OF THE ISSUES
I can dispose of th~ first .issue rather quickly. Agapito argues that I should not entertain
the motion .for reconsideration.because
the Secretary has not established that reconsideration is
. .
.
warranted. It argues that the Commission has held that reconsideration "should not be granted,
absent pighly unusual circumstances, unless the ... court is presented with newly discovered
evidence, committed clear error, or ifthere is an intervening change in the controlling.law."
Island Creek Coal Co., 23 FMSHRC 138, 139 (Feb. 2001) (emphasis in original). In that case,
however, the Commission was construing Commission Procedural Rule 78, 29 C.F.R. § 2700.78,

2

The citatio.n at issue alleges. a violation of 30 C.F.R. § 75.203(a). It states that Agapito
"inaccurately evaluated-the conditions and events at the mine when determining if areas of the
mine were safe for mining" and, based on its results, "recommended to the operator that mining
methods were safe and pillar and barrier dimensions were appropriate when in fact ,they were
not."
The parties refer to th~ owner operator as GRI/UEI, which stands for Genwal
Resources, Inc., and UtahAmencan Energy, Inc.
·
3

30 FMSHRC 1188

which concerns reconsideration of a final decision of the Commission. In the present case, the
Secretary is asking for reconsideration- of an interim order issued by an administrative law judge
at the outset of a case. I find that I have the authority and discretion to reconsider my order of
September 12 even where the Secretary has not met the criteria set forth in Island Creek. I also
find that the Secretary has presented sufficient justification for me to reconsider my order
denying the motion for stay. As a consequence, I reject Agapito 's argument that I should not
consider the Secretary's motion.
A review of the key provisions of the Mine Act is helpful. Section 4 of the Mine Act,
entitled "Mines Subject to Act," provides that "[eJach coal or other mine, the products of which
enter commerce, or the operations or products of which a-ffect commerce, and·each operator of
such mine, and ·e very miner in such mine shall be subject to the provisions of this Act." 30
U.S.C. § 803 (Emphasis added). Section 104(a) of the Mine Act grants the Secretary the
authority to issue a citation if the Secretary's representative believes that "an operator of a·coal or
other mine subject to this Act" has violated a safety or health standard. The term "operator," as
used in the Mine Act, is defined in section 3(d) as "any owner, lessee, or other person who
operates, controls, or supervises a coal or other mine or any independent contractor peiforming
services or construction at such mine." 30 U.S.C. §802(d) (emphasis added). Section 105(d) of
the Mine Act grants jurisdiction to the Commission to adjudicate contests of citations and orders
issued by MSHA as well as contests of the-Secretary's proposed penalties. 30 U.S.C. § 815(d).
Thus, these provisions of the Mine Act grant the Secretary tb.e authority to issue·a citation to an
independent contractor performing seMces at a coal or other mine and the Commission has the
authority to adjudicate a contest of the citation and the associated civil penalty.
The Crandall Canyon Mine clearly fits within the definition of "coal or other mine" in
section 3(h)(l) of the Mine Act. The issue ra1sed by Agapito at·this point in this proceeding is
whether it was an operator as result of being an "independent contractor performing services at a
coal or other mine." Agapito contends that it was not an independent contractor' but was a
geological consulting firm that provided "advice, analysis, and consultation fo mine operators"
from its office in Grand"Junction, Colorado. · (A. Opposition to·Sec'y's Motion to Stay). It is
clear that Agapito provided services related to underground mining at Crandall Canyon Mine. · ·
Agapito would like the independent contractor issue immediately adjudicated before the U.S.
Attorney initiates or completes a criminal investigation. ·
The first question raised by the Secretary in the motion for reconsideration concerns her
argwnent that the issue of Agapito's status as an independent contractor is an element of the
claim to be adjudicated in due course rather than a threshold question of subject matter
jurisdiction. She relies in large part on the Supreme Court's decision in·Arbaugh v. Y & H Corp.:,
546 U.S. 500; 126 S. Ct. 1235 (2006). She did not discuss this decision in her original motion ·
requesting a stay.

In Arbaugh, the Supreme Court discussed the "distinction between two sometimes
confused or conflated concepts: federal-court 'subjec~ matter' jurisdiction over a controversy;
30 FMSHRC 1189

and the essential ingredients of a federal claim for relief." 546 U.S. 503, 126 S.Ct. 1238. Ms.
Arbaugh prevailed in a case alleging sexual harassment at work under Title VII of the Civil
Rights Act of 1964. Two weeks after the trial judge entered judgment on the jury verdict in her
favor, the employer moved to dismiss the case for want of federal subject matter jurisdiction.
For the first time in the litigation, .the employer asserted that it had fewer that 15 employees on its
payroll and it was not subject to being sued under Title Vil. The trial .c<:mrt stated that it had .n o
choice but to grant the motion because it believed that the 15-employee requirement in Title VII
was jurisdictional. The court of appeals affirmed the district court's dismissal of the case.
. The Supreme C~urt reyersed because it determined that the employ~e-~umerosity
requirement is directly related to the substantive adequacy of Arbaugh's Title Vll.claim rather
than the jurisdiction of the court to hear the case. As a consequence, the employer could not raise
this issue after the close of the trial. The court s~ated that the objection that a federal court lacks
subject matter jurisdictfon may be raised by~ party, or by the court on its own initiative, at any
stage in the litigation, even after trial and the entry of judgment. . An argument that the plain.t iff
failed to establish an element of a claim, on the other hand, must be made in a pleading, a
motion, or.at trial on the merits.
The Court recognized that federal courts, including the Supreme Court, have often "been
less than meticulous" when analyzing the "subject matter jurisdiction/ingredient-of-claim-forrelief dichotomy." 546 U.S. 511; 126 S. Ct.· 1242. The Court stated that the basic. statutory
grants ofjurisdiction for federal courts are 28 U.S.C. §§ 1331and1332. The Civil Rights Act of
1964 also contains.a provision grantingjurisdiction to federal courts. . 42 U.S.C. § 2QOOe-5(f)(3). ·
The Supreme Court lo.o ked at several factors in reaching its conclusion that the 15employee provision related to th~ merits ofihe case: First, subject m~tterjurisdictjon can p.ever
be waived and courts have an independent obligation to detennine whether subject matter ,·
jurisdiction exists, even in the absence of a challenge from any party. Yet, nothing .i n the text of
Title VIl indicates that Congress intended courts, on their own motion, to assure. that the
employee-nunierosit).,'_requirement is met. Second, .the trial judge, not the jury, determines
whet~er .t he cOurt has~.subj.ect matter jurisdiction in a case. The judge is allowed to review the
evidence to resolve a jurisdictional dispute if the facts are contested. If satisfaction of an
essential element of a claim for relief is at issue, however, the jury is the proper trier of any
contested facts. The co:urt concluded that the factual disputes concerning whether the employer
was exempt from liability because of the 15-employee provision in the statute should have been
resolved by t~e trier of fact and not the.trialjudge.
In thein~tant;case, the Secretary argues that the status ofAgapito as an indep.endent
contractor is not a ·question of subject matter juris~ction. The de~tion of a Inipe operator is ,
contained in section 3(d) of the Mine Act and this definition.includes independent contractors. It
is significant that this definition was not included in the section 105(d) of the Mine Act, which
grants the Commission jurisdiction to hear contests of citations, orders, and civil penalties.. As a
consequence, the Secretary contends that Congr~ss clearly did not intend for the issue whether an

30 FMSHRC 1190

entity is an independent contractor to be a jurisdictional one. The Commission has jurisdiction in
this case because Agapito contested a citation that was issued to it by MSHA, not because
Agapito is _an independent contractor.
Agapito argues that Arbaugh is wholly inapplicable to the issues in this case. Federal
district courts enjoys broad statutory authority to hear cases arising under federal law under 28
U.S.C. § 1331. The Supreme Court rejected the notion that the district court lacked jurisdiction
over a case because of limitations elsewhere in the particular statute involved. The Cominission,
however, does not have jurisdiction over this case if Agapito is not an operator as that term is
used in the stafute. Congress did not grant the Commission broad plenary jurisdiction over all
·
issues arising under the Mine Act.
Agapito also argu~s that, even if the principles set forth in Arbaugh are found to apply,
that does not end the inquiry. It contends that the court should determine whether Agapito was
an independent contractor under· the Mine Act as a threshold matter in any event. If Agapito was
not an independent contractor, then the citation should be vacated without litigating the merits of
the citation. Determining whether Agapito was an independent contractor before adjudicating
the merits conserves the resources of the parties and the Commission.
I hold that a resolution of any factual disputes necessary to determine whetherAgapito
was an independent contractor under the Mine Act is a matter for the trier of fact. In addition, as
the administrative law judge assigried this case, I do not have an independent obligation to
determine whether a party is an operator or an independent contractor subject to the Mine Act in
the absence of a challenge from any party. I may choose to exercise my discretion to raise this
issue at a hearing, but I am not obligated to do so. To put it-another way, a party contesting a
citation cannot seek to have the ci41tion vacated after the administrative law judge's decision has
been issued on the basis that it is not an independent contractor if it never preViously raised that
issue. Thus~ the Commission's subject matter jurisdiction over a proceeding does not depend OU'
a party's status as an "operator." Agapito entered limited appearance to contest the instant
citation. As set forth in section 105(d) of the Mine Act~ the Commission has jurisdiction in this
case because Agapito contested the citation and such jurisdiction is.not dependent on Agapito's
status as an independent contractor. I am persuaded by the Secretary's arguinents on this issue.

a

.

.

.

The next issue is whether I should determine if Agapito was an independent contractor'
before reaching the substantive issues alleged in the citation. The Secretary argues that because
"the question whether Agapito is an operator is an element of the claim,'"that issue should be
determined "in the due course of the litigation, with the other elements of the claim, rather than
as a threshold issue." (S. Br. in support of motion at 8). The Secretary-argues that a bifurcation
of the case would result in piecemeal litigation that would wa5te judicial resources ·arid require
depositions of the same people multiple times.
·

..

In addition, the Secretary states that adjudication of this issue on the basis of the accident
report is· unworkable because the accident report was never intended to be used to establish . ·
30 FMSHRC i 191

Agapito's status as an i!tdependent contractor. This issue is too important to be decided on the
basis of a technical accident report, designed to discuss the root causes of the accident, but not
designed .to serve as a d(1finitive.recitation of the facts necessary to establish that Agapito was an
independent contractor. Moreover, some of Agapito's agents refused to participate in.MSHA's
accident investigation. As a consequence, the information in the report is not complete and the
Secretary states that she would need to present additional evidence to establish that Agapito was
an independent contractor at the time the citation was issued. She believes that she will need to
conduct discovery in order to prepare for trial on that issue.
. The Se.cretary argues that "allowing evidence to be obtained and publicly disclosed on
this issue .. : would have an adverse impact on the pending criminal investigation.,, Id. The
Secretary cites the letter she received from the U.S. Attorney asking that this case be stayed
because Agapito is the subject of a criminal investigation. The letter dated September 3, 2008,
states.:
The evidence gathered to determine criminal liability may
significantly overlap with the evidence needed to prove civil
liability. Co~equently, this office has an interest in insuring that
neither (Agapitol nor any other entity obtain discovery from a civil
proceeding that would unduly circumvent the more limited scope
of discovery availabl~ in criminal matters. See Sec. & Exch.
Comm 'n v. Chestman, 861 F. 2d. 49, 50 {2°d Cir. 1988).
(S. Br. in support of Motion for Stay, Ex. A) The letter goes on to state:
This interest in limi~ing civil discovery applies in a civil
proceeding involving solely jurisdictional questions. For example,
to litigate whether [Ag.apito) is an operator of a mine, MSHA
would have to disclose an.relevant information obtained through
its investigation about [Agapito's) relationship to the other entities
that operated the Crandall Canyon Mine. Given that "relevance" in
a civil matter is anything that is ''reasonably calculated to lead to
the discovery of admissible evidence," Fed. R. Civ. P. 26(b){l),
allowing discovery on this jurisdictional issue could easily
"circumvent the more limited discovery available in criminal
matters." Chestman, 861 F. 2d at 50. Further, any discovery
disclosed in the civil proceeding would provide potential targets
with access to witnesses and documents to which they would not
otherwise be entitled while the investigation is pending.

Id.

30 FMSHRC 1192

The Secretary contends that whether Agapito's activities were covered by the Mine Act is
factually intensive because Agapito will argue that this issue depends upon.both the location and ·
scope of.the services it provided. To counter Agapito's arguments~ the Secretary states'that'She· ·
would be required to "introduce evidence relating to what services'Agapito coritra:cted fo ·' ..
perform, what occurred in practice, and what limitations, understandings, agreements and beliefs
Agapito and [the mine owner/operator] had in evaluating the con_ditions at Crandall Canyon and
[in] shaping and modifying the engineering plans." (S. Br. in support of motion at 20). The
Secretary contends that specific evidence would have to be introduced relating to the on-site· ·
visits Agapito made to the mine and how and why the mining plan was modified following these
visits. Id. She states that these "substantive questions and the evidence relating to them are
precisely what the U.S. Attorney has asked not be prematurely addressed in this proceeding at
this time." Id. 4
·
'
Agapito maintains that, because the Secretary's investigative and enforcement authoritY
go hand in hand, the accident investigation report may be used to determine whether Agapito was
an independent contractor. The fact that several people failed to participate in MSHA's accident
investigation is irrelevant. Agapito again states that additional discovery is not necessary to
resolve the issue at hand. Agapito states that "the nature of the specific services provided by
Agapito and the frequency of visits to the mine ... are already eithedn the Secretary's
possession, available through a Rule 30(b)(6) deposition of Agapito, or available through the
Court-ordered hearing." (A. Response at 20). Agapito states that it is willing to enter into one
or more protective orders to preserve the confidentiality of information.
The letter from the U.S. Attorney seems to focus almost exclusively on concerns·over
discovery taken by Apagito. As the administrative law judge in this case, I have the authority to
control and limit discovery, to keep documents under seal, and.to ·e nter protective orders. It
appears to me that the question whether Agapito was an independent contractor in this instance
raises rather simple factual issues. The Commission's and the 10th Circuit's·decisions in Joy
Technologies, Inc. analyie the 'issues involved. (17 FMSHRC-1303 (Augu's t 1995); 99 F.3rd 991
(10th Cir. 1996)). The Secretary maintains that whether Agapifo was an independent contractor
could possibly tum, at least in part, on what the owner/operator of
Crandall Canyon Mine
thought about the engineering plans arid whether the owner/operator modified these plans.
Although such facts may be important wheri litigating the underlying citation, I cannot see how

the

4

It is interesting to note that the U.S. Attorney clarified his position on September 5,
2008, to allow the heirs of the disaster victims and injured·rescuers to continue to pursue civil
litigation against.the mine's owners,-operators, and consultants. Mine Safety and Health News,
Vol. 15, No. 16, p. 275, September 15, 2008 (reprinting article from The Salt Lake Tribune). A
representative of the U.S. Attorney stated that the stay request applies only to "pending
administrative enforcement actions in which MSHA is seeking to obtain monetary penalties
against the business organizations associated with the mine." Id. It would "not apply to civil
court proceedings brought by the victims or their families." Id.

30 FMSHRC 1193

these questions will be significant when det~rmining whether Agapito was an independent
contractor..
The l01h Circuit's analysis in Joy Technologies is rather straightforward. The court held
that "independent contractor status is not to be based on the existence of a service contract or
control, but on the performance of significant services at the mine...." 99 F3d. at 998. The
court rejected·the approach set forth in Old Dominion Power Co. v. Donovan, 772 F.2d 92 (4'h
Cir. 1985) and followed the approach taken in Otis Elevator Co. v. Sec '.Y ofLabor, 921 F .2d
1285 (D.C. Cir 1990). Chief Judge Robert J. Lesnick adopted the reasoning of the D.C. and
Tenth Circuits in finding that an engineering company that prepared mining permits for the
owner/operator of an underground coal mine was an independent contractor under the Mine Act.
Black Wolf.Coal Co., Inc., 28 FMSHRC 699, 711-714 (July 2006). He noted that mining
operations require engineering support. He stated that, although the engineering contractor "was
not hired to create a map for submission to MSHA, it was hired to perform necessary services
required in the overall extraction pr9cess." Id. Judge Lesnick held that since the engineering
contractor "performed significant services rendering more than de minimis ties to mining
operations" it was an independent,contractor. Id. at 714. Although this decision is not binding
on me, it is a logical application of the 10th and D.C. Circuit decisions to the work of engineering
consulting firms at underground coal mines. 5 The Crandall Canyon Mine and Agapito's offices
in Grand Junction, Colorado, are in the Tenth Circuit.
The Commission is charged with the responsibility of adjudicating disputes under the
Mine Act. In creating the Commission, Congress made it quite clear that it expected the
Commission to hear and decide cases in an expeditious manner.. For example, the Commission
was created with five commissioners with the authority to act in panels of three. The Senate
Report made clear that "the Committee strongly believes that it is imperative that the
Commission str<:(nuously avoid unnecessary delay in acting upon cases." S. Rep. 95-181, at 48
(1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of
the Federal.Mine Safety and Health Act of 1977, at 636 (1978). Moreover,.in discuss~ng the role
of administr~tive law judges in the adjudication of cases, the Report states that judges must give
the parti~s "every reasonable opport~ty to adequately develop the record .. : consistent with
[their] duty to resolve matters under dispute in an expeditious manner." Id. at 637. Thus,
Congress intended the Commission and its judges to act with reasonable promptness. To this
end, the Commission stated that its procedural rules "shall be construed to secure the just,
speedy, and inexpensive determination of all proceedings .... " 29 C.F.R. § 2700.l(c).

5

The Seventh Circuit adopted the reasoning of the D.C. and Tenth Circuits when it held
that a company that regularly delivered steel to a mine "cannot be characterized as an
independent contractor providing services at a mine because the minimal activity performed ...
does not rise to a level that can be construed as services performed at a mine." Northern Illinois
Steel Supply Co. v Sec '.Y ofLabor, 294 F.3d 844, 849 (71h Cir. 2002).
30 FMSHRC 1194

It has been my experience that criminal investigations in cases involving fatal accidents at
the nation's mines are always very time consuming. I have never had such a case out of Utah,
but in other instances, the criminal matters were not resolved until a few months before the
expiration of the statute of limitations.

I believe that it is in the interest of the parties to determine whether Agapito was an
independent contractor before the criminal investigation iS completed. 6 fu addition, I do not
agree with the Secretary's characterization that the issue is factually complex. For example, she
states that because Agapito will apparently argue that "its actions did not constitute services if the
mine operator could modify them," the Secretary will be required to conduct discovery to
determine whether this argument has merit and whether Agapito 's services were actually
"necessary." (S. Reply Br. at 7). The Secretary contends that such discovery could prejudice the
U.S. Attorney's criminal investigation if taken at this time. Whether.the services or
recommendations provided by Agapito were modified by the owner/operator relates to the
allegations in the citation rather than to Agapito' s status as an'independent contractor. Tenth
Circuit and Commission precedent make clear that the issue is whether Agapito provided
significant services to the owner/operator with the result that it had more than a de minimis
association with the coal extraction process or other work taking place at the Crandall Canyon
Mine. The status of a mining or engineering consultant as an independent contractor does not
change because its recommendations are subsequently rejected or modified by the
owner/operator.
The Secretary insists that she needs to take discovery to pin down the key facts. It is clear
that the Secretary already has a great deal of information coriceming the relationship between
Agapito and the mine's owner/operator. In addition, Agapito states that it would not object to the
Secretary taking a deposition of the company under Rule 30(b)(6) of the Federal Rules of Civil
Procedure. I recognize that MSHA's accident investigation report was not written with the
intention of setting forth all of the information necessary to establish that Agapito was acting as
an independent contractor as that term has been interpreted under the Mine Act. I credit the
Secretary's stated need to take discovery on this issue. NevertheJess, the Secretar}' has not totally
convinced me that her discovery on this narrow issue will seriously interfere with the pending
criminal investigation, especially sinc·e I have the authority to control discovery and limit the
dissemination of information through protective and other orders. 7

6

On September 24, 2008, I denied Agapito's motion for expedited consideration of this

issue.
The parties presented many other arguments with respect to the issues pres~nted.
Indeed, the total length of the parties' briefs is about 75 pages. As a consequence, I have not
addressed every argument or issue raised. For example, AgapitO argued thatwhat it calls
''primary administrative jurisdiction doctrine" requires that the Commission decide whether ·
Agapito is an independent contractor before a U.S. District Court may address the issue. This
argument is rejected as are all other arguments that are inconsistent with this order.
7

the

30 FMSHRC 1195

In my order of September 12, 2008, l evaluated the Secretary's request for a stay using the
factors established by the Commission in Buck Creek Coal, Inc., 17 FMSHRC 500 {April 1995).
Taking into consideration the information provided by the parties in response to the
reconsideration motion, I enter the following additional findings. It is clear that ,t here will be
evidentiary information that is common to both this proceeding and the criminal case, The.
citation at issue here will be at.issue in a criminal case. Moreover, whether Agapito was an
independent contractor under the Mine Act will be an issue likely to be raised in a criminal
proceeding. I do not know whether a criminal indictment is imminent, but the criminal
investigation is either immine~t or it has already started. The Secretary and the office of the U.S.
Attorney state that permitting this case to go for\1Vard, even on the limited issue of Agapito's
status as an independent contractor, could prejudice the criminal investigation. The Secretary
claims that adjudicating the independent contractor issue separately from the merits of the
citation will not be an efficient use of theagency's resources. In addition, it is quite possible that
key employees of Agapito will assert their privilege against self-incrimination, if the Secretary
seeks to depose them, which will prevent her from presenting the evidence she believes that she
needs to establish Agapito' s independent contractor status. Finally, the public interest favors the
expeditious resolution of Commission proceedings, but not if such resolution seriously interferes
with criminal proceedings.
Based on the above, I am granting the Secretary's request for reconsideration and I am
staying this case until February 27, 2009. No discovery shall be permitted during the stay. The
Secretary should understand that I will not automatically extend the stay. On or before February
20, 2009, the Secretary shall file a detailed accounting of the status of the criminal investigation
and when it is expected to be completed. At the expiration of this stay, I may require the
Secretary to conduct any discovery she determines is necessary on the independent contractor
issue while continuing to prohibit Agapito from conducting discovery. Agapito is willing to
decide the issues raised on the basis of the MSHA accident investigation report. Moreover,
Agapito already knows what services it provided to the owner/operator of the Crandall Canyon
Mine. As stated above, the U:S. Attorney is concerned that discovery taken by Agapito, rather ··
than by the Secretary, could interfere with the criminal proceedings. In this same report, due
February 20, the Secretary shall raise any objections to this discovery proposal and, if objections
are made, explain how discovery taken on the independent contractor issue would interfere with
the criminal matter. Agapito will be permitted to respond to this report.

30FMSHRC 1196

III. ORDER ·
For the reasons set forth above, the motion for reconsideration is GRANTED and this
proceeding is STAYED until February 27, 2009. The Secretary SHALL .file the report required
in the above paragraph on or before February 20, 2009. The parties shall initiate a conference
call on or soon after February 27, 2009, to discuss the status of the case and the criminal
investigation. The parties shall feel free to initiate a conference call to discuss this case at any
time and shall do so before filing any motions.

Richard W.' !Vfanning
Administrative Law Judge

Distribution:
Derek J. Baxter, Esq., Office ofthe Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd
Floor, Arlington, VA 22209-2296
Timothy S. Williams, Esq., Office of the Solicitor, U.S. Department ofLabor, 1999 Broadway,
Suite 1600, Denver, CO 80202
Mark N. Savit, Esq., Patton B?ggs, 1801 Califor:nia St, Suite 4900, Denver, CO 80202

RWM

30 FMSHRC.1197

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

December 18, 2008
SECRETARY OF ,LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING ·
Docket No. WEVA 2008-804
A.C. No. 46-04168-142950

V.

Sentinel Mine
WOLF RUN MJN1NG,
Respondent .

·ORDER DENYING THE SECRETARY'S MOTION TO AMEND AS MOOT
. AND ORDER DENYING RESPONDENT'S
MOTION FOR·PARTIAL SUMMARY DECISION
This matter presents the question of whether safeguard violations citing safeguard criteria
in sections 75·.1403-2 through 75.1403-11, 30 C.F.R. §§ 75.1403-2-75.1403-11, issued by the
Secretary, pursuant to the authority delegated by Congress in section 314(b) ofthe Federal Mine·
Safety and Health Act of 1977, as amended ("the Act"), 30 U.S:C. § 874(b), can be properly
designated as significant and substantial ("S&S"). 1 Section 314 is one of several provisions
among the interim safety standards in Title ill of the Act that were contained in the initial
Coal Mine Health and Safety Act of 1969. Southern Ohio Coal Co., 14 FMSHRC 1, 5
(Jan. 1992) (SOCCO JI); 30 U.S.C. § 801 et seq. (1976) (amended 1977).
The statutory provisions of section·3 l 4(b) are repeated verbatim in section 7 5.1403 of
Part 75 of the Secretary's regulations. 30 C.F.R: § 75.1403. Specifically, Congress, in section
3 l 4(b), .authorized the Secretary to issue and enforce safeguards to minimize hazards:associated·· ·
with the transportation ofpeople and materials. Section 104(d)(l) of the.Act limits S&S
designations to only violations of''mandato:ry health or safety standards." 30 U.S.C. 814(d)(l).

.

.

.

.

.

'

'

.

1

.

.

.

Generally speaking, a violation is S&S if it is reasonably likely that the hazard
contributed to by the violation will result in an accident causing serious injury. Cement .Division,
National Gypsum, 3 FMSHRC 822, 825 (Apr. 1981 ).
30 FMSHRC 1198

Statement of the Case
On June 27, 2000, the Secretary issued Safeguard No. 7095089 at the Wolf Run Mining
Company ("Wolf Run") Sentinel Mine. Section 75-1403-1 of the Secretary's regulations sets
forth procedures for the issuance of safeguards and explains that sections 75-1403-2 through
7 5.1403-11 set out the criteria by which MSHA inspectors are to be guided in requiring
safeguards and issuing safeguard violations on a mine-by-mine basis. 30 C.F.R. §§ 75-1403-2
through 75.1403-11. Safeguard No. 7095089 cited the criteria in section 75.1403-5(j) that
requires suitable crossing facilities where persons cross over or under moving conveyor belts.
Citation No. 6606199 was issued at Wolf Run' s Sentinel facility on January 23, 2008.
The citation alleged a violation of Safeguard No. 7095089 because a suitable crossing facility
was not provided where miners were required to cross over moving conveyor belts. . Wolf Run ·
asserts that safeguard violations citing the safeguard criteria provisions cannot be designated as
S&S because the safeguard criteria are not mandatory safety standards. Consequently, Wolf Run
has filed a Motion for Partial Suinmary Decision concerning the S&S designation in Citation
No. 6606199 based on its contention that neither·the safeguard allegedly violated, nor section
75.1403-5(j), are mandatory standards as contemplated by section 104(d)(l) of the Act.2
The Secretary opposes WolfRun's motion.
To counteract WolfRun's motion, the Secretary has filed a Motion to Amend
Citation No. 6606199 to reflect that the-safeguard violation was issued under section 75.1403,
rather than the criteria in section 75.1403-5(j). Wolf Run opposes the Secretary's motion.
It argues that '\vhether the citation lists Section 75.1403-5(j) or Section 75.1403 is immaterial"
because Wolf Run is alleged· to have violated a safeguard rather than a mandatory standard.
(Wolf Run opp. at 3).
With respect to the Secretary's Motion to Amend, although Wolf Run contests the
propriety of an S&S designation ofa safeguard violation, it does not challenge the authority of
the Secretary in section 314(b) of the Act, codifi~d .in section 7 5.1403 of the regulations,' to issue
saf~guard violations. The Secretary's exercise of her safeguard authority is inseparable ·from the
safeguard criteria that describe the necessary requirements to maximize transportation safety, the
absence of which give rise to the issuance of a citation. In other words, the authority to -issue
safeguard citations in section 75.1403, and the criteria for issuing safeguard citations in sections
75.1403-2 through 75.1403-11, are not mutually exclusive. Accorrungly, the Secretary's motion
to amend Citation 6606199 to replace section 75.1403-S(j) with section 75.1403 shall be
dismissed as moot.

2

Commission Rule 67 provides that a motion for summary decision may be deci.d ed if
there is "no genuine issue as to any material fact." 29 C.F.R. § 2700.67(b). WolfRun's request
·
for partial summary decision concerns a question of law rather than questions of fact. ·
Consequently, it is proper to address the issue before me in this summary decision matter.
30 FMSHRC 1199

Turning to WolfRun's Motion for Partial Summary Decision, section 3(1) of the Act
states that a mandatory safety standard promulgated in a Title I rulemaking also means an interim
mandatory safety standard promulgated by Congress in Title ill. 30 U.S.C. § 802(1). Although
safeguards are not mandatory safety standards created as a result of a formal rulemaking under
Title I of the Act, they are issued as an interim mandatory safety standard under section 314(b) of
Title ill of the Act. As such, consistent with the statutory definition in section 3(1), section
301(a) of the Act provides that interim mandatory safety standards are enforceable" ... in the
same manner and to the same extent as a mandatory safety standard" until superseded in a formal
rulemaking. 30 U.S.C. § 861(a). Wolf Run does not contend that the Secretary's failure to
supersede the interim standard in section 314(b) of the Act in a formal rulemaking proceeding
precludes the enforcement of safeguards as an interim safety standard. Accordingly, as
discussed below, WolfRun's motion shall be denied.
Statutory Framework and Analysis
..

This matter presents the question of the proper construction of the term "mandatory safety
standard" in section 104(d)(l) that is a condition precedent for the assignment of an S&S
designation. The first inquiry in statutory construction is "whether Congress has directly spoken
to the precise question in issue. Chevron US.A. Inc., v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (April 1996).
If a statute is clear and unambiguous, effect must be given to its language. Chevron, 467 U.S.
at 842-843. Accord Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994).
An interpretation of a statute may not be adopted that "alter[s] the clearly expressed intent of
Congress." K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (citations omitted).
Significantly, the Court of Appeals decision in Cyprus Emerald Resources Corp., 195 F.3d 42,
44 (D.C. Cir 1999), rev'g Cyprus Emerald Resources Corp., 20 FMSHRC 790 (Aug. 1998),
primarily relied on in this matter by Wolf Run, concluded the contro.lling statutory language
concerning mandatory safety standards was unambiguous.
As a general.proposition, contrary to WolfRun's assertion, there is nothing wmsual about
enforcing standards that are unique to a speeific mine, such as safeguards, as mandatory safety
standards even though the standards are not explicitly set forth in the Secretary's regulations.
See UMWA v. Dole, 870 F.2d 662, 671 (D.C. Cir. 1989); Zeigler 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) (the law governing the enforcement of mandatory
standards is applicable to ventilation and roof control plan provisions). Moreover, the
Commission has noted "clear Congressional intent" that "mine by mine compliance plans
required by statute or regulation ... are enforceable as if they were mandatory standards ...."
Jim Walter Res., Inc., 28 FMSHRC 579, 588 (Aug. 2006) (quoting S. Rep. No. 95-181at25
(1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of
the Federal Mine Safety and Health Act of 1977, at 613 (1978).

30 FMSHRC 1200

Turning to the specific dispositive statutory'language, section 104{d)(l} of the Act '
provides that only violations of mandatory health and safety standards can be designated as S&S.
Specifically, section 104(d)(l) of the Act states, in pertinent part:

If, upon any inspection of a coal or other mine, an authorized representative of the
Secretary finds that there has been a violation ofany mandatory 'health or safety ·
standard; and if he also finds that, while the conditions created by such.violation
do not cause imminent danger, such violation is ofsuch nature as could
significantly and substantially contribute to the cause and effect ofa coal or other
mine safety or health hazard, and if he finds such violation to· be caused by an
unwarrantable failure of such operator to comply with such mandatory health
or safety standards, he shall include such finding in any citation given to· the
operator ... ,
(emphasis added) 30 U.S.C. § 814(d)(l).
·'

The statutory scheme in the Act contains two categories of mandafory safety standards,
namily a "mandatory health or safety standard" promulgated by the Secretary·pilrsuant to Title I
and "interim.mandatory health and safety standards" promulgated by Congress pursuant to
Titles II and ill: By statutory definition, a mandatory health or safety standard includes safety
standards promulgated ,by either the Secretary or Congress. Specifically, section 3(1) of the Act
defines "mandatory health or safety standard" as:
·
... the interim m·a ndatory health or safety.standards established by titles n and ill
·· of this Act, and standards promulgated pursuant to title I of this Act.
30 U.S.C. §.802(1). Thus, the term ''mandatory safety standard" clearly includes an interim ··
mandatory safety standard.
Title I of the Act authorizes the Secretary, through a notice and comment rulemaking,
to" ... develop,. promulgate, and revise as may be appropriate, improved mandatory·health or ·
safety standards for the protection of life and prevention of injunes ·in coal or other mines."
30 U.S.C. § 81 l(a). ·
·

In Title II ofthe Act, Congress promulgated "Interim Mandatory Health St~dards" to be ·
enforced by the Secretary " ... ·until superseded in whole or in part by improved mandatory health
standards promulgated by the Secretary under the provisiOns of section 101 ·of the Ace'
30 U.S.C. § 842(a). The interim mandatory health standards are enforceable by the Secretary
" ... in the same manner and to the s~e extent as any mandatory health standard promulgated ... "
by ·the Secretary's rulemaking. Id.
·
.. '

30 FMSHRC 1201

.'

In Title III of the Act Congress promulgated "Interim Mandatory Safety St.a ndards for
Underground Coal Mines," applicable to all underground coal mines, that are also not
superseded, in whole.or in part, until the Secretary, under t_h e provisions of section 101
of.the Act, promulgates superseded mandatory safety standards through rulemaking.
30 U.S.C. § 861(a).
Section 301 (a) of the A~t, consistent with the statutory definition of a mandatory
safety standard in section 3(1), exemplifies the equivalency of safety standards promulgated
by the Secretary through rulemaking, and.by Congress through the interim safety standards, .
Section 301 (a) of the Act provides:
The provisions of sections 3 02 through 318 oft.his title shall b~ interim mancfatory safety
standards applicable to all underground coal mines until superseded in whole or in part
by improved mandatory safety standards promulgated by the Secretary under the
provisions of section 10 l of this Act, and shall be enforced in _the same manner and to
the same.extent as any mandatory safety standard promulgated under section 101 ofthis .
Act. Any orders issued in the enforcement of the interim standards set forth in this.title
shall be subject to ryview as provided in title I of this Act.
(emphasis added) 30 U.S.C. § 86l(a).
.

.

.

The language of section 301(a) is unambiguous, and inclusive. .Interim mandatory safety
standards in sections 302 _to 318 "shall be enforced in the same manner and to the s~e .extent as
any mandatory safety standard." Id. Interim mandatory standards are included.within the
definition of rr.iandatory safety standards. 30 U.S.C. § 802(1).
Section 314(b), promulgated under Title III, is an interim mandatory safety standard that
authorizes mine inspectors to issue, and subsequently enforce, safeguards to minimize
transportation hazards that are specific to a particular mine. Wolf Run has provided no .
meaningful basis to support the conclusion that the safeguard provisions in section 314(b) do not
constitute an interim mandatory safety standard .
.Moreover, the C~inmission has noted that " ... the language of section 314(b) of the Act
is broad and 'manifests a legislative purpose to guard against all hazards attendant upon haulage
and transport[ation] in coal mining."' SOCCO II, 14 FMSHRC at 8 (quoting Jim Walter
Resources, Inc., 7 FMSHRC at 496). Thus, ldecline to view section 314(b) as a diamond in
Wolf Run' s rough, by narrowly construing, and differentiating, section 3 l 4(b) from other interim
mandatory safety standards contained in sections 302 to 318 of the Act. 30 U.S.C. §§ 862 - 878.

30 FMSHRC 1202

Case Law Arialysis
Although 'there is no statutory authority for granting the relief that Wolf Run seeks,
the proposition that safeguards are not mandatory standards ·.
WolfRun's reliance on case faw
as contemplated by section 104(d)(l) of the Act is misplaced. As a threshold matter, the
Commission long ago determined that a safeguard violation could be designated S&S.
Mathies Coal Co. ~ 6 FMSHRC 1 (Jan. 1984). The Commission has also' rioted that "while other
mandatory safety and health standards are adopted through the notfoe .and comnient rulemakmg .
procedures of section·101 of the Act, section 3 l 4(b) extends authority to the· Secretary to create
on a mine-by-mine basis what are, in effect, mandatory standards, without the formalities of
rulemaking." SOCCO IL 14 FMSHRC at 8 citing. Southern Ohio Coal Co., 7 FMSHRC
at 512
.
(SOCCO I). Thus, the Commis'sion has recognized that safeguards niay be enforced as
mandatory safety'standards everi in the abseric~ of formal rulemakiiig. ·20 FMSHRC at 809.

for

WolfRun's reliance mi the Court's decision in Cyprnf Einera/d'for the contniry
proposition is misplaced. · 195 F.3d 42. Cyprus Emerald dealt with whether section 50. l l(b) of
the Secretary' s regulations, governing the investigation and reporting of iiccidents; was a :
''mandatory safety standard" that could be desigiiated as S&S: The Court held that: "[s]ection
104(d) unambiguously authorizes a 'significant and substantial' violation finding for a violation
only of a mandatory health or safety standard." (Emphasis added) Id. at 44. Thus, the Court
concluded section 50.1 l(b) was not a mandatory safety standard because it was promulgat~d by
Congress 1lnder the "Administration" provisions in Title V, section 508 of the Act, rather than by
a section 101 rulemaking.3 30:U.S.C. § 95T Nothing in Cypruf Einerald Warrants the ·
conclusion that the CoUrt abrogated the statlitozy definition in section 3(1) of the Act that
explicitly provides that a "mandatory health 6r safety standard" includes '"interirri mandatory
health or safety standards" promulgated under Title II or ill of the Act. 30 U.S.C . .§ 802(1).
. ..

'

WolfRuil's reliance on'the Commission's dicta in its undedyirig Cyprus'Emerald .
decision is likewise unconVihcing. 20 FMSHRC 790. Although Cyprus Emerald primarily
concerned accident reporting tequireinents iti section 50;1l(b) of the regulations~· the ·' . .
Commission did acknowledge, as Wolf Run suggestS, that there was a "crucial difference" in ·
interpreting mandatory standards promulgated in a Title I rulemakii1g and safeguard notices
issued by ari inspector. Id. ·at 808. The Commission explained: ·
·

be

In SOCCO I, we held that while mandatory standards "should
construed in a
manner that effectuates, rather than frustrates their intended goal[,]" safeguards

3

Section 508 provides, "[t]he Secretary, The Secretary of Health, Education, and Welfare
and the Panel are authorized to issue such regulations as each deems appropriate to carry out any
provision of this Act." 30 U.S.C. § 957.
30 FMSHRC 1203

are issued without resort to the normally required rulemaking process, and
therefore "a narrow construction of the terms of the safeguard and its intended
reach is required."
20 FMSHRC at 808 (quoting SOCCO I, 7 FMSHRC at 51.2) (footnote omitted).
Thus, it is the scope of an inspector's unilateral discretion in issuing safeguards, without
the benefit of a notice and comment rulemaking to vet a mandatory standard adopte<f: under
Title I, that concerns the Commission. It is in this context that the Commission noted that the
safeguard criteria in sections 75.1403-2 through 75.1403-11 are not mandatory safety standards.
Id. at 808-09. However, the Commission did not conclude that they could not be enforced as
Title ID interim mandatory safeguard safety standards. On the contrary, the Commission
concluded, citing Mathies, that safeguards can be cited as S&S. Id. at 809.

In the final analysis, Congressional failure to include safeguard criteria in its Title III
interim standards is of little import. Obviously, Congress could not identify and enumerate the
diverse hazards associated with the movement of underground mine personnel and equipment.
However, the Secretary's identification of safeguard criteria in subsections 75.1403-2 through
75.1403-11 of section 75.1403 satisfies a major Commission concern - - that broadly written
safety standards must provide mine operators with notice ofwhat conditions are proscribed. ·
See Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (Nov. 1981); Alabama By Products Corp.,
4 FMSHRC 2128, 2130 (Dec. 1992); see also U.S. Steel Corp.; 5 FMSHRC 3, 4 (Jan. 1983).
Consequently, safeguard violations are enforceable as mandatory safety standards even when
cited as violations of the safeguard criteria in 75.1403.
MSHA Program Policy Manual
Finally, Wolf Run, in its Memorandum of Law in support of its request for partial
summary decision, citing MSHA's Program Policy Manual, avers that the Secretary "recognizes"
that the safeguard criteria in section 7 5 .1403 are not mandatory health or safety standards.
(Mem. of Law, at 6; see also Mem. of Law, Ex. 3). While policy statements in MSHA's
Program Policy Manual are not binding on the Secretary or the Commission, MSHA 's policy
statement is not inconsistent with the enforcement of safeguard violations as S&S infractions.
See D.H Blattner & Sons, Inc., 18 FMSHRC 1580, 1586 (Sept. 1996), (quoting King Knob Coal
Co., 3 FMSHRC 1417, 1420 (June 1981)). The thrust of the policy statement is that safeguard
criteria, unlike safety regulations born of rulemaking, are not enforceable until a notice of
safeguard is issued. The relevant MSHA policy provisions relied on by Wolf Run do not support
the proposition that a 104( a) citation for violation of safeguard criteria may not be designated as
S&S after issuance of the safeguard notice. The relevant provisions state:
It must be remembered that these [safeguard] criteria are not
mandatory. If an authorized representative of the Secretary
determines that a transportation hazard exists and the hazard is not

30 FMSHRC 1204

covered by a mandatory regulation, the authorized representative
must issue a safeguard notice, allowing time to comply before a
104{a) citation can be issued ....

MSHA Program Policy Manual, Vol. V, Subpart 0, at 125 (October 2003); see also SOCCO II,
14 FMSHRC at 7-8 (safeguards can be enforced like mandatory standards only after mine
operators are advised in writing that specific safeguards will be required as of a specified date) .
Thus, it is inappropriate to suggest that MSHA recognizes that safeguard criteria cannot be
enforced as mandatory safety standards after a notice of safeguard is issued. Consequently, the
Secretary may designate the safeguard violation in 104(a) Citation No; 6606199, alleging a
'
.
violation of Notice of Safeguard No. 7095089, as· S&S in nature.

ORDER
In sum, the citation in issue cites a violation of an interim mandatory standard in
section 314(b) of Title ill of the Act. . 30 U.S.C. § 874(b). Interim mandatory health and safety
standards are defined as mandatory health·and safety standards under section 3(1) ·of the Act.
30 U.S.C. § 802(1). Section 104(d)(l) limits S&S designations only to violations of mandatory
health and safety standards. 30 U.S.C. § 814(d)(l). As a safeguard violation is a violation of a
mandatory safety standard as defined by the Act, if may be properly designated as an S&S
violation. Accordingly, IT IS ORDERED that WolfRun's Motion for Partial Summary
Decision IS DENIED.~

IT IS FURTHER ORDERED, consistent with the above, that the Secretary's Motion to
Amend Citation No. Citation No. 6606199 to substitute the safeguard criterion in section
75.1403-5(j) with section 75.1403, that repeats verbatim the statutory language in section 314(b)
of the Act, IS Denied as moot because the sections are indivisible rather than mutually exclusive.

Jerold Feldman
Achninistrative Law Judge .

4

In reaching this conclusion -I am cognizant that a colleague, Judge Zielinski, reached
the opposite decision in cases involving similar facts. See Big Ridge, Inc., Docket Nos. LAKE
2008-68, 69, 30 FMSHRC _ (ALJ, Nov..24, 2008); Cumberland Resources LP, Docket No.
PENN 2008-318, 30 FMSHRC _ (ALJ, Dec. 4, 2008).
30 FMSHRC 1205

Distribution:

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340,
401 Liberty Avenue, Pittsburgh, PA 15222
Susan M. Jordan, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630 East,
The Curtis Center, 170 S. Indepenence Mall West, Philadelphia, PA 19106
/sr

30 FMSHRC 1206

Federal Mine Safety & Health Review Commission
Calendar Year 2008 Index
This index of decisions and orders issued during the calendar year 2008 is divided into two parts:
decisions and orders issued by the Commission, followed by those issued by the Administrative
Law Judges (ALJs). The listings include titles, docket numbers, date of issuance, and page
numbers in the Federal Mine Safety and Health Review Commission Decisions Bluebook
(FMSHRC), volume 22. Where Secretary of Labor, Mine Safety and Health Administration is a
party, listings are under the name of the opposing party.
·.·

.

Commission Decisions and Orders
Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 30 .

AAA Ready Mix, II

WEST 2008-383-M

05-27-2008

. Pg~ 409 ·

Alex Energy, Inc.

WEVA 2008-505

04-21-2008

Pg. 207 ·

Atlanta Sand & Supply ·
Company, Inc.

SE 2008-327-M

07-16-2008

·pg.605

BRS Inc.

YORK 2008-166-M

07-21-2008

Pg. 626

Bandmill Coal
Corporation

WEVA 2008-288

04-04-2008

Pg. 180

Banner Blue Coal
Company

VA 2008-95

05-01-2008

Pg. 353

Barrick Goldstrike Mines,
Inc.

WEST 2008-374-M

05-08-2008 .

Pg.J66

Black Beauty Coal
Company

LAKE 2008-286

07-16-2008

Pg.612

Blesdoe Coal Corporation

KENT 2008-808

10-15-2008

Pg.915

Blount Springs Materials

SE 2008-589-M

08-01-2008

Pg.640

CCC Group, Inc.

SE 2009-61-M

12-08-2008

Pg. 1043

..

1

:· : ~ .

Case Name-

Docket Number

Date

Page Number
FMSHRC Vol. 30

CW Electric

KENT 2008-494

04-30-2008

Pg.217

Calmat Company d/b/a
Vulcan Materials

WEST 2008-312-M

·04-09-2008

Pg. 186

Canyon Fuel Company, .
LLC

WEST 2008-773

07-16-2008

Pg.622

Cargill Deicing
Technology

CENT 2008-218-M

05-08-2008

Pg. 356

Cemex, Inc.

PENN 2008-98-M

04-04-2008

Pg. 170

Chemical Lime Company
of Arizona

WEST 2008-771-M.·

04-07-2008

Pg. 587 ·

Clean Energy Mining Col

KENT 2008-538

04-:30-2008

Pg.224

Climax Molybdenum
Company

WEST 2008-473-M

06-23-2008

Pg. 439

Cloverlick Coal Company,
LLC

KENT 2008-256

04-04-2008

Pg. 158

Consolidation Coal
Company

WEVA 2008-600

04-30-2008

Pg.232

Currituck Sand, Inc.

SE

2008-279-M

04-25-2008

Pg. 214

DBS, Inc.

SE

2008-547-M

10-22-2008

Pg. 929 ·

Dana Mining Company,
Inc.

.. WEVA 2008-510

05-29-4008

,pg. 413

Danbi, Inc.

WEVA 2008-1478

11-07-2008

. Pg. 1013

Denison Mines, (USA)
Corp.

WEST 2008-992-M

07-24-2008

Pg.630

Dixie Sand and Gravel,
Inc.

SE · 2008-774-M

10-22-20.08 '

Pg. 933 ·

Drisco Trucking Co.

CENT 2008-473-M

07-09-2008

Pg.596

2

•,

Case Name

Docket Number .

Date

Page Number
FMSHRC Vol. 30

Drummond Company, Inc.

SE 2008-575

07-09-2008

.Pg. 593

Eastern Associated Coal,
LLC

WEVA 2008-488

05-16-2008

Pg.392

Elk Run Coal Company,
Inc.

WEVA 2008-434

05-22-2008

Pg.402

Elk Ru~ Coal Company,
Inc.

WEVA 2008-492

06-11-2008

Pg.423

Ember Contracting
Corporation

KENT 2008-1346

11-24-2008

Pg. 1029

Empire Iron Mining
Partnership

LAKE 2008-210-M

05-08-2008

Pg. 359 .

Five Star Mining, Inc.

LAKE 2008-307

07-07-2008

Pg.583

Five Star Mining, Inc.

LAKE 2008-447

11-06-20.08

Pg. 1002

Frontier-Kemper
Constructors, Inc.

LAKE 2008-569

11-10-2008

Pg. 1017

Genwal Resources, Inc.

WEST 2008-861

11-25-2008

Pg. 1036

H. B. Mellott Estate, Inc.

PENN 2008-190-M

05-19-2008

Pg.396

H. H. Rauh Paving, Inc.

YORK 2008-161-M

08-27-2008

Pg.692

ICG Hazard, LLC

KENT 2008-661

04-25-2008

·pg. 210

Interwest Construction &
Development Inc.

WEST 2008-313-M

04-09-2008

Pg . 189

Iron Mountain Quarry,
LLC

WEST 2008-350-M

04-10-2008

Pg.201

Jacob Mining Co., LLC

WEVA 2008-565

10-15-2008

Pg. 922 ...

James Hamilton
Construction

CENT 2008-347-M

05-16-2008

Pg.380

3

Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 30

James Hamilton
Construction

WEST 2008-547-M

05-16-2008

Pg.388

Jessee·-Stone Company

VA

2008-278-M

10-28-2008

Pg.936

Kaw Valley Sand &
Gravel, Inc.

CENT 2008-412-M

05-20-2008

Pg.399

Kevin Phillips emp. by
Reostone, LLC

KENT 2008-1294

11-10-2008

Pg. 1020

Krystal Gravel

SE 2008-843-M

11-14-2008

Pg. 1023

LaFarge Aggregates
Southeast, Inc.·

SE

07-25-2008

Pg.633

LaFarge Aggregates
Southeast, Inc.

SE 2008-805-M

11-14-2008

Pg. 1026

LaFarge North America,
Inc.

WEST 2008-311-M

04-09-2008

Pg. 183

Lang Exploratory Drilling

WEST 2008-1314-M

12-15-2008

Pg. 1057

LeSeur-Richmond Slate
Corp.

VA 2008-89-M

04-10-2008

Pg. 198

Little Buck Coal Company

PENN 2008-132

04-04-2008

Pg. 174

Little Eagle Coal
Company

WEYA 2008-1085

07-10-2008

Pg.599

Long Fork Coal Company

KENT 2008-633

04-30-2008

Pg.228

Lyons Salt Company

CENT 2008-332-M

06-06-2008

Pg.416

Mass Transport, Inc.

WEYA 2008-425

06-18-2008

Pg.433

Mass Transport, Inc.

WEYA 2008-425

11-06-2008

Pg.997

McElroy Coal Company

WEVA 2008-513

05-22-2008

Pg.405

National Cement
Company of California

WEST 2004-182-RM

08-26-2008

Pg.668

2008-707-M

4

Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 30

Northern Lakes Concrete, . LAKE 2008-349-M
Inc.

11-07-2008

Pg. 1010

Old Dominion Energy,
Inc.

VA

2008-227

07-16-2008

Pg. 616

Palmer Coking Coal
Company

WEST 2008-934-M .

12-22-2008

Pg. 1076

Panther Mining, LLC

KENT 2008-257

04-04-2008

Pg. 161

Parham Trucking
Company

SE 2008-563-M

08-28-2008

Pg. 696

Pederson Brothers, Inc.

LAKE 2008-60-M

04-04-2008

Pg. 164

Pederson Brothers, Inc.

LAKE 2008-61-M

04-04-2008

Pg. 167

Phelps Dodge Tyrone, Inc.

CENT 2006-212-RM

08-06-2008

Pg.646

Pine Bluff Sand & Gravel
Co.

CENT 2008 591-M

11-25-2008

Pg. 1039

Pinnacle Mining
Company, LLC

WEVA 2008-273

12-17-2008

Pg. 1061

Pinnacle Mining
Company, LLC

WEV A 2008-272

12-17-2008

Pg. 1066

Pinnacle Mining
Company, LLC

WEVA 2008-927

12-17-2008

Pg. 1071

Pioneer Sand Company

WEST 2008-823-M

08-01-2008

Pg.643

Pitlick & Wick, Inc.

LAKE 2008-345-M

11-07-2008

Pg. 1006

Plateau Mining
Corporation

WEST 2002.:.207

07-15-2008

Pg.602

Polycor Colorado Stone
Quarries

WEST 2008-475:..M

05-08-2008

Pg.370

Quality Coal Company,
Inc.

SE

2008-278-M

04-10-2008

Pg. 192

5

Case·Name

Docket Number

Date

Page Number
FMSHRC Vol. 30

Red River Coal Company,
Inc.

VA 2008-258 "

06-18-2008"

Pg. 427

Road Fork Development
Co.

KENT 2008-512

04-30-2008

· Pg.' 220 '

Ruscat Enterprises, Inc.

WEVA 2008-1083

12-22-2008

Pg. 1083

S & M Coal Company

PENN 2008-487

12-10-2008

Pg. 1053

Simmons Fork Mining,
Inc.

WEVA 2008-538

06-06-2008

Pg.419

Solar CoaJ Company

KENT 2008-1179

11-24-2008

Pg. 1033

Solar Coal Company

KENT 2008-1214

12-10-2008

Pg. 1046

Solar Coal Company

KENT 2008-1207

12-10-2008

Pg. 1049

Spartan Mining Company, WEVA 2008-704
Inc.

05-08-2008

Pg.376

Spartan Mining Company,
Inc.

WEVA 2004-117RM

08-28-2008

Pg.699

Stowers Trucking, LLC

WEYA 2008-1082

12-22-2008

Pg. 1080

Stratcor, Inc.

CENT 2008-595-M

10-30-2008

Pg.940

T.J.S. Mining, Inc.

PENN 2008-376

07-01-2008

Pg. 579 ..

Teck Pogo, Inc.

WEST 2008-754-M

05-08-2008

Pg.373

Thomas Torrance emp. by
Buzzi Unicem,.USA

CENT 2008-123-M

04-04-2008

Pg. 155

Tilden Mining Company,
LLC

LAKE 2008-269 .

05-08-2008

Pg.363

Twentymile Coal
Company

WEST 2008-257

04-04-2008

Pg.177

Twentymile Coal
Company

. WEST 2008-375

05-16-2008

Pg.384

6"

..
.

Docket Number

Case Name

Date

Page Number
FMSHRC Vol. 30

Twentyniile Coal
Company

WEST 2008-879

07-29-2008

Pg.636

Twentymile Coal
Company

WEST 2007-892-E

08-29-2008

Pg. 736

Twentymile Coal
Company

WEST 2007-375

10-07-2008

Pg.9U.

U. S. Borax, Inc.

WEST 2008-997-M

06-18-2008

Pg.430

U.S. Silica Company

VA 2008-81-M

04-10-2008

Pg. 195

U.S. Silica Company

WEVA 2008-703

06-18-2008

Pg.436

United Taconite, LLC

LAKE 2008-483-M

10-22-2008

Pg.926

Voss Sand Works, Inc.

LAKE 2008-422-M

10-15-2008

Pg.918

Wabash Mine Holding
Company

LAKE 2008-268

04-21-2008

Pg.204

Waroquier Coal Company

PENN 2008-367

07-16-2008

Pg.619

Warrior Coal, LLC

KENT 2008-470

05-01-2008

Pg.345

Federal Mine Safety & Health Review Commission
2008 Index
ALJ Decisions and Orders

7

Case Name

Docket Number

Date

Page
Number
FMSHRC
Vol. 22

Agapito Associates, In~.

WEST 2008-1451-R

09-12-2008

Pg. ~82

Agapito Associates, Inc.

WEST 2008-1451-R

12-10-2008

Pg. 1187

Aracoma Coal Company

WEYA 2006-654

12-23-2008

Pg. 1160

Ammon Enterprises

WEST 2007-62-M

07-10-2008

Pg. 799

Banner Blue Coal
Company

VA

01-14-2008

Pg. 11

Big Ridge Incorporated

LAKE 2008-68

11-24-2008

Pg. 1172

Black Beauty Coal
Company

LAKE 2007-156

10-27-2008

Pg.966

Blue Diamond Coal
Company

KENT 2004-220-R

10-10-2008

Pg.962

C. W. Mining Company .

WEST 2007-241

01-22-2008

Pg.32

Climax Molybdenum
Company

WEST 2007-330-RM

08-27-2008

Pg.886

Consol of Kentucky, Inc.

KENT 2007-351-R

01-10-2008

Pg.

Consol of Kentucky, Inc.

KENT 2007-63

07-03-2008

Pg. 783

Cumberland Coal
Resources, LP

PENN 2007-325

09-30-2008

Pg.953

Cumberland Coal
Resources, LP

PENN 2008-318

12-04-2008

Pg. 1180

Emerald Coal Resources,
LP

PENN 2007-192-R

01-31-2008

Pg. 122

Emerald Coal Resources,
LP

PENN 2008-257-R

06-20-2008

Pg.532

2006-57-R

8

I

Case Name

Docket Number

Date

Page
Number
FMSHRC
Vol. 22

Gabriel Robles v. LaFarge
North America, Inc.

CENT 2008-115-DM

08-28-2008

Pg.901

Gordon Sand Company

WEST 2006-524-M

03-07-2008

Pg.235

Haines & Kibblehouse,
Inc.

PENN 2006-143-R

06-09-2008

Pg.504

Highland Mining
Company, LLC

KENT 2008-104

11-06-2008

Pg. 1097

Hubert Hoenck v. Granite
Rock Co.

WEST 2006-495-DM 02-04-2008

Pg. 128

I 0 Coal Company

WEVA 2007-293

08-20-2008

. Pg. 847

J. S. Redpath Corporation

WEST.2007-124-M

01-17-2008

Pg. 12

James Blevins and
Maverick Mining

KENT 2006-232-R

08-28-2008

Pg.905

Jeppesen Gravel

CENT 2006-184-M

04-30-2008

Pg.324

Jim Walter. Resources, Inc. SE

2006-40

01-28-2008

Pg.69

Jim Walter Resources, Inc. SE

2006-141-R

07-25-2008.

Pg. 834.

Jim Walter Resources, Inc. SE

2006-295-R

08-27-2008

Pg.872

Jim Walter Resources, Inc. SE

2008-389-R

10-29-2008

Pg.974

Kingwood Mining
Company, LLC

WEVA 2007-384

09-08-2008

Pg. 943

McElroy Coal Company

WEVA 2005-243-R

01-25-2008

·I>g. 45

McEJroy Coal Company

WEVA 2007-132

03-25-2008

Pg.237

Michael A. Fulmer v.
Mettiki Coal Corporation

YORK 2007-52-D

06-13-2008

Pg;523

National Coal Corporation

KENT 2006-439

07-25-2008

Pg.828

9

Case Name

Docket Number

Date

Page
Number
FMSHRC
Vol. 22

Nelson Quarries, Inc.
(w/corrections)

CENT 2006-178-M

04-07-2008

Pg. 254

Nelson Quarries, Inc.

CENT 2006-205-M

05-08-2008

Pg.443

Nelson·Quarries, Inc.

CENT 2007-62-M

08-07-2008

Pg.842

PBS Coals & Musser
Engineering, Inc.

PENN 2004-158

11-03-2008

Pg. 1087

Powder River Coal. LLC

WEST 2007-100-R

07-10-2008

Pg. 790

Process Energy

KENT 2008-267

11-17-2008

Pg. 1105

R S & W Coal Company,
Inc.

PENN 2007-163

01-29-2008

Pg. 100

Rinker Materials Western, WEST 2006-451-M
Inc.

01-29-2008

Pg. 104

Rinker Materials

WES1'2007-16-M

02-08-2008

Pg. 143

Rockhouse Energy Mining
Co.

KENT 2008-1483-R

09-19-2008

Pg.988

Rockhouse·Energy Mining
Company

KENT 2008-1483-R

12-19-2008

Pg. 1125

Roy G. Peterson v. Alcoa
World.Alumina Atlantic

CENT 2007-45-DM

02-25-2008

Pg~ 152

SCP Investments, LLC

SE

2006-148-M

03-31-2008

·Pg. 341.

Sangravl Company, Inc.

SE 2007-350-M

11-26-2008

. Pg. 1111

05-19-2008

. Pg. 459

Sec. Labo~ o/b/o Lawrence KENT 2006-506-D
Pendley v. Highland
Mining Co., LLC (Interim)

10

Case Nrune

Docket Number

Date

Page
Number
FMSHRC
Vol. 22

Sec. Labor o/b/o Lawrence
Pendley v. Highland
Mining Co., LLC (Fina])

KENT 2006-506-D

06-05-2008

Pg.500

Sec. Labor o/b/o Peter
Phillips v. A & S
Construction Company

WEST 2008-1057-

11-26-2008

Pg. 1119

DM

Shawn Johnson v. David
Huffman Trucking

WEVA 2007-235-D

01-10-2008

Pg.8

Solid Energy Mining
Company

KENT 2008- 114

07-11-2008

Pg.823

Webster County Coal,
LLC

KENT 2008-469-R

05-13-2008

Pg.457

White Buck Coal
Company

WEV A 2008-327

06-20-2008

Pg. 535

Wolf Run Mining

WEVA 2008-804

12-18-2008

Pg. 1198

11

G:O< U.S. GOVERNMENT PRINTING OFFICE : 2009-350-058/62700