JULY AND AUGUST 2008

COMMISSION DECISIONS AND ORDERS
07-01-2008
07-07-2008
07-07-2008
07-09-2008
07-09-2008
07-10-2008
07-15-2008
07-16-2008
07-16-2008
07-16-2008
07-16-2008
07-16-2008
07-21-2008
07-24-2008
07-25-2008
07-29-2008
08-01-2008
08-01-2008
08-06-2008
08-26-2008
08-27-2008
08-28-2008
08-28-2008
08-29-2008

T.J.S. Mining, fuc.
Five Star Mining, Inc.
Chemical Lime Company of Arizona
Drummond Company, Inc.
Drisco Trucking Company
Little Eagle Coal Company
Plateau Mining Corporation
Atlanta Sand & Supply Company, Inc.
Black Beauty Coal Company
Old Dominion Energy, Inc.
Waroquier Coal Company
Canyon Fuel Company, LLC.
BRS Inc.
Denison Mines, (USA) Corp.
Lafarge Aggregates Southeast, Inc.
Twentymile Coal Company
Blount Springs Materials
Pioneer Sand Company
Phelps Dodge Tyrone, Inc.
National Cement Company of California
H.H. Rauh Paving, Inc.
Parham Trucking Company
Spartan Mining Company, fuc.
Twentymile Coal Company

PENN 2008-376
LAKE 2008-307
WEST 2008-771-M
SE
2008-575
CENT 2008-473-M
WEVA 2008-1085
WEST 2002-207
SE
2008-327-M
LAKE 2008-286
VA
2008-227
PENN 2008-367
WEST 2008-773
YORK 2008-166-M
WEST 2008-992-M
SE
2008-707-M
WEST 2008-879
SE
2008-589-M
WEST 2008-823-M
CENT 2006-212-RM
WEST 2004-182-RM
YORK2008-161-M
SE 2008-563-M
WEVA 2004-117-RM
WEST 2007-892-E

Pg. 579
Pg. 583
Pg.587
Pg.593
Pg.596
Pg.599
Pg. 602
Pg. 605
Pg. 612
Pg.616
Pg.619
Pg. 622
Pg. 626
Pg. 630
Pg.633
Pg. 636
Pg.640
Pg.643
Pg.646
Pg.668
Pg.692
Pg.696
Pg. 699
Pg. 736

KENT 2007-63
WEST 2007-100-R
WEST 2007-62-M
KENT 2008-114
KENT 2006-439
SE
2006-141-R
CENT 2007-62-M
WEVA 2007-293
SE
2006-295-R
WEST 2007-330-RM
CENT 2008-115-DM

Pg. 783
Pg. 790
Pg.799
Pg. 823
Pg. 828
Pg.834
Pg. 842
Pg.847
Pg.872
Pg. 886
Pg. 901

KENT 2006-232-R

Pg. 905

ADMINISTRATIVE LAW JUDGE DECISIONS
07-03-2008
07-10-2008
07-10-2008
07-11-2008
07-25-2008
07-25-2008
08-07-2008
08-20-2008
08-27-2008
08-27-2008
08-28-2008

Consol of Kentucky, Inc.
Powder River Coal, LLC.
Ammon Enterprises
Solid Energy Mining Company
National Coal Corporation
Jim Walter Resources, Inc.
Nelson Quarries, Inc.
I 0 Coal Company
Jim Walter Resources, Inc.
Climax Molybdenum Company
Gabriel Robles v. Lafarge North America, Inc.

ADMINISTRATIVE LAW JUDGE ORDERS
08-28-2008

James Blevins and Maverick Mining

i

JULY AND AUGUST 2008

Review was granted in the following cases during the months of July and August 2008:

Secretary of Labor, MSHA on behalf of Lawrence Pendley v. Highland Mining Company, Docket
No. KENT 2007-383-D. (Judge Barbour, June 5, 2008)
Secretary of Labor, MSHA v. SCP Investments, LLC., Docket Nos. SE 2006-148-M,
SE 2006-163-M. (Judge Feldman, June 24, 2008)

C0!\1MISSION DEQSIONS AND ORDERS

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

July 1, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. PENN 2008-376
A.C. No. 36-09159-119300

v.
T.J.S. 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 16, 2008, the Commission received from T.J.S.
Mining, fuc. ("T.J.S. Mining") a letter 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 May 31, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000119300 to T.J.S. Mining, which proposed civil
penalties for five citations, including Citation No. 7063809. T.J.S. Mining states that it paid the
penalties for four of the citations and contested the proposed penalty for Citation No. 7063809.
However, the operator subsequently received a letter from MSHA stating that T.J.S. Mining had
failed to timely contest Proposed Assessment No. 000119300. fu its letter, which was dated
March 21, 2008, MSHA states that the hearing request was faxed to it on March 17, 2008.

The Secretary states that she does not oppose T.J.S. Mining's request to reopen. She
notes, however, that while MSHA records show a payment received on July 9, 2007, there is no

30 FMSHRC 579

record that MSHA's Civil Penalty Compliance Office in Arlington, Virginia, received a contest
of the proposed penalty for Citation No. 7063809. 1
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).

1

By the terms of the proposed assessment, payment of a proposed penalty must be sent
to MSHA at a Pittsburgh, Pennsylvania, address, while the form contesting a proposed penalty
must be sent to MSHA at an Arlington, Virginia, address.
30 FMSHRC 580

Having reviewed T.J.S. Mining's request 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 T .J .S. Mining timely contested the penalty proposal and, if not, whether good cause
exists for granting relief from the final order. If it is found that T.J.S. Mining did, in fact, contest
the penalty proposed, the date of the contest should be ascertained. If it is determined that relief
from the final order 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 581

Distribution:

L. Ray Bashline, Safety Director
T.J.S. Mining, Inc.
2340 Smith Rd.
Shelocta, PA 15774
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 582

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

July 7, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2008-307 ·
A.C. No. 12-02249-133229

v.
FIVE 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 April 4, 2008, the Commission received from Five Star
Mining, Inc. (''Five Star") a motion made by counsel to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On December 5, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000133229 to Five Star, proposing penalties for
multiple citations and orders that had been issued to the company. According to Five Star, it
contested the corresponding order to the proposed penalty it now seeks to reopen in a notice of
contest submitted on June 28, 2007, and docketed as No. LAKE 2007-144-R. Five Star asserts
that counsel for the company promptly returned the proposed assessment form indicating that it
wished to contest the proposed assessment for the previously contested order. However, Five
Star contends that the contest was mistakenly sent to the Commission's Docket Office in
Washington, D.C., instead ofMSHA's Civil Penalty Compliance Office in Arlington, Virginia.
Five Star asserts that it was informed of its error by an attorney in the Secretary's Regional

30 FMSHRC 583 ·

Solicitor's Office, who instructed the company's counsel to submit the proposed assessment
contest with a cover letter to the Civil Penalty Compliance Office. Five Star explains that it
inquired with the Civil Penalty Compliance Office when it did not hear back from MSHA and
was told to file a request to reopen with the Commission. The Secretary states that she does not
oppose Five Star's request to reopen the proposed penalty assessment.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure 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 584

Having reviewed Five Star'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 Five Star'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 585

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. Dept. Of Labor
1100 Wilson Blvd., Rm. 2220
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 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 586

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

July 7, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMlNISTRATION (MSHA)
Docket No. WEST 2008-711-M
A.C. No. 26-00081-134154-02

v.
CHEMICAL LIME CO. OF
ARIZONA

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY: Duffy, Chairman; Jordan and Young, 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 March 20, 2008, the Commission received from
Chemical Lime Co. of Arizona ("Chemical Lime") 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).
In September 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued 24 citations to Chemical Lime. Chemical Lime requested a conference on
seven of the citations. According to Chemical Lime, an MSHA representative said that MSHA
would take Chemical Lime's position under advisement. On December 13, 2007, MSHA issued
a proposed assessment that included the citations that were discussed at the conference.
Chemical Lime returned the assessment with the boxes checked next to citations other than .the
ones that it had discussed at the conference with MSHA. In a cover letter that accompanied the
proposed assessment, Chemical Lime stated that "this contest is in addition to citations now
waiting decision on conference." In a letter dated January 24, 2008, MSHA informed Chemical
Lime that it had upheld six of the seven citations as issued and was modifying one citation.

30 FMSHRC 587

According to Chemical Lime, it then learned that it was too late to contest the penalties related t
the citations that had been discussed with MSHA at conference. 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) 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 588

Having reviewed Chemical Lime's request 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 Chemical Lime's failure to timely contest the penalty proposals
and whether relief from the final orders should be granted. 1 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.

1

While our dissenting colleague suggests that we grant the operator's request, there is
not a sufficient factual record to permit us to make such a decision in this case.
30 FMSHRC 589

Commissioner Cohen, dissenting:
I do not believe that this matter needs to be remanded to the Chief Administrative Law
Judge. Chemical Lime filed a motion to reopen a penalty assessment in which it described in
detail why it did not file a notice of contest of the proposed penalty. Its motion was fully
documented. The Secretary did not dispute any of the facts alleged by Chemical Lime, and so we
accept them as true for.purposes of this motion.
The undisputed facts establish that Chemical Lime questioned 14 of 24 citations issued
against it by MSHA. As to seven of these citations, the operator timely requested a conference.
The conference was held on October 29, 2007, at the conclusion of which MSHA informed
Chemical Lime that it would reconsider these seven citations and let the operator know its
position.
On December 13, 2007, while the seven conferenced citations were still being considered,
MSHA issued penalty assessments as to all 24 citations. On January 8, 2008, Chemical Lime
sent a timely notice of contest to MSHA in which it contested penalties resulting from seven
citations which were not in the conference procedure. In an accompanying cover letter, Chemical
Lime stated, "[n]ote that this contest is in addition to citations now waiting a decision on
cpnference." Chemical Lime states that because the results of the conference had not yet been
received, it did not know whether there would be any aspects of the seven conferenced citations
in dispute. At the time, Chemical Lime was not represented by counsel.
On January 24, 2008, MSHA informed Chemical Lime that it was upholding six of the
conferenced citations as issued and modifying the other citation. It was only then that Chemical
Lime learned that the deadline for submitting a notice of contest was dependent on the date of the
proposed penalty assessment rather than the date of the conference results. Chemical Lime acted
within a reasonable time in submitting this motion to reopen with the Commission. The
Secretary does not oppose this motion to reopen the penalty assessment.
Under these circumstances, I do not see how the Chief Administrative Law Judge can do
anything but grant the Rule 60(b) motion for the reason that Chemical Lime's failure to timely file
a notice of contest of the seven conferenced citations was the result of a reasonable mistake.
Specifically, (1) Chemical Lime timely disputed the seven citations and sought to challenge them
through the conference procedure; (2) while waiting the results of the conference, Chemical Lime
timely filed a notice of contest of penalties for seven other citations and explicitly stated that this
was "in addition to" the citations which were pending in conference; (3) Chemical Lime did not
have legal counsel when it made the mistake of not contesting the penalty assessments on all 14
citations; and (4) Chemical Lime sought to rectify its mistake within a reasonable time.

30 FMSHRC 590

In light of undisputed facts and a clearly reasonable mistake, I believe that the
Commission itself should grant this motion rather than remand the case to the Chief
Administrative Law Judge to reach the same result. The evidence presented on this record
supports no other conclusion than that good cause existed for Chemical Lime's failure to timely
contest the penalty assessment. Consequently, a remand to the Chief Administrative Law Judge
would serve no purpose. See American Mine Servs., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993).

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 591

Distribution:
Ashley D. Brightwell, Esq.
Alton & Bird, LLP
One Atlantic Ctr.
1201 West Peachtree St.
Atlanta, GA 30309-3424
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 251h 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 592

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

July 9, 2008
SECRETARY OF LABOR.
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2008-575
A.C. No. 01-02901-137662

V.

DRUMMOND COMPANY, 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 9, 2008, the Commission received from Drummond
Company, Inc. ("Drummond") 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 January 30, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to Drummond. Drummond asserts that it had
previously filed contests of two of the· citations contained in the assessment: Citations Nos.
7692121 and 7692122, assigned to Docket Nos. SE 2007-384-R and SE 2007-385-R.
Drummond states that it intended to contest the penalties for the two citations but that its safety
superintendent had to assume additional duties and was unable to timely contest them. The
Secretary states that she does not oppose the reopening of the assessment.
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
30 FMSHRC 593

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
.from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Drummond's request 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 Drummond'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.

Mich

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 594

Distribution

Noelle Holladay True, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC.
2333 Alumni Park Plaza, Suite 310
Lexington, KY 40517
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 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 595

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

July 9, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2008-473-M
A.C. No. 14.;00124-133600 R993

v.
DRISCO TRUCKING 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 April 9, 2008, the Commission received from Drisco
Trucking Company ("Drisco") a letter 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 7, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment covering Citation No. 7937378 to Drisco. In
its letter, Drisco asserts that the proposed penalty assessment was inadvertently misplaced and,
on February 1, 2008, it attempted to contest the citation with MSHA. MSHA informed Drisco
that it could not honor its request for a hearing because ofDrisco's failure to contest the case
within 30 days. In seeking reopening, Drisco asserts that this is its first citation and that it is
unfamiliar with Mine Act proceedings. The Secretary states that she does not oppose the
reopening of the assessment.

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section lOS{a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
30 FMSHRC 596

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).
Having reviewed Drisco' s request and the Secretary's response, in the interests of justice,
we remand this matter to the Chief Administrative Law Judge for a determination ofwhether
good cause exists for Drisco' 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 597

Distribution
Scott Doombox
Drisco, LLC.
7001 River Ridge Drive
Ponca City, OK 74604
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 598

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

July 10, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2008-1085
A.C. No. 46-08676-141980

v.
LITTLE EAGLE COAL CO.

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 Commission received from Little Eagle
Coal Co. ("Little Eagle") a motion by counsel 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 February 27, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued to Little Eagle Proposed Assessment No. 000141980, which proposed civil
penalties for several citations. Little Eagle states that it mailed its contest of the proposed
penalties for some of the citations on April 4, 2008, as the result of a delay in forwarding the
assessment form. In response, the Secretary states that after reviewing the records in this case,
she determined that the contest of the proposed assessment was timely, and docketed by the
Commission as WEVA 2008-957.

30 FMSHRC 599

Having reviewed Little Eagle's request and the Secretary's response, we conclude that t, proposed assessment at issue has not become a final order of the Commission because Little
Eagle timely contested it. We deny Little Eagle's motion as moot. Appropriate proceedings on
Proposed Assessment No. 000141980 shall proceed in Docket No. WEVA 2008-957 pursuant to
the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. See Lehigh Cement
Co., 28 FMSHRC 440, 441(July2006).

~Q~··-

Michael

i0:ch;rman

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 600

Distribution:

R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of the 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 and Health Review Commission
610 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001

30 FMSHRC 601

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

July 15, 2008
SECRETARY OF LABOR.
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos.
v.

WEST 2002-207
WEST 2002-278

PLATEAU MINING CORPORATION

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
These civil penalty proceedings arise under the Federal Mine Safety and Health A~t of
1977, 30 U.S.C. § 801 et seq. (2000) ("Mine Act"). The Department of Labor's Mine Safety and
Health Administration issued Citation No. 7143395 alleging a violation of30 C.F.R.
§ 75.334(b)(l) to Plateau Mining Corporation ("Plateau"). Administrative Law Judge Richard
Manning affirmed the citation and assessed a civil penalty of $25,000 for the violation. 25
FMSHRC 73,8, 763 (Dec. 2003) (ALJ). Plateau filed a petition for discretionary review,
challenging the judge's determination, which the Commission granted. On review,
Commissioners were evenly divided regarding whether Plateau violated section 75.334(b)(l). 28
FMSHRC 501, 510 (Aug. 2006). The effect of the split decision was to allow the judge's
affirmation of Citation No. 7143395 and assessment of penalty to stand. Id. (citations omitted).

In Plateau Mining Corp. v. FMSHRC, 519 F .3d 1176 (10th Cir. 2008), the Tenth Circuit
Court of Appeals reversed the judge's decision. The court determined that substantial evidence
did not support the judge's finding that Plateau was on notice that its ventilation system was
performing inadequately. Id. at 1197. On May 9, 2008, the court issued its mandate in this
matter, returning the case to the Commission's jurisdiction.

30 FMSHRC 602

Accordingly, consistent with the decision of the Tenth Circuit, we hereby vacate Citation
No. 7143395 and the penalty assessed by the judge.

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 603

Distribution:
R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340,
401 Liberty Avenue
Pittsburgh, PA 15222
Karen L. Johnston, Esq.
Jackson Kelly PLLC
1099 18th Street, Suite 2150
Denver, CO 80202
Jerry Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Judge Richard Manning
Federal Mine Safety and Health Review Commission
1244 Speer Boulevard, Suite 280
Denver, CO 80204-3582

30 FMSHRC 604

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
6o1 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

July 16, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2008-327-M
A.C. No. 09-00264-133436

V.

ATLANTA SAND & SUPPLY
COMPANY, INC.

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 February 19, 2008, the Commission received from
Atlanta Sand & Supply Company, fuc. ("Atlanta Sand") 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, 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 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 6, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000133436 to Atlanta Sand, proposing penalties for
nine citations that had been issued to the company in August 2007. According to Atlanta Sand, it
engaged in informal conferences with MSHA regarding the citations. The operator states that
when it was not successful in obtaining all of the modifications to the citations it sought, it
resolved to request a hearing once the penalties for the citations were proposed. However, due to
a miscommunication between Atlanta Sand and its counsel, a contest of the proposed assessment
was never filed. The Secretary states that she does not oppose Atlanta Sand's request to reopen
the proposed penalty assessment.

30 FMSHRC 605

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"). fu evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R
§ 2700. 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).
fu its motion, the operator states only that its failure to timely contest the penalty involved
"an unintentional error in the transfer of the Proposed Assessment from Atlanta Sand to counsel"
which resulted in a "misunderstanding regarding whether the penalties were mailed to counsel
and counsel's not learning that the penalties had been assessed until after the time for filing a
hearing request had run." Because Atlanta Sand provides no specific facts justifying relief, we
deny its motion without prejudice.
Atlanta Sand bases its request to reopen on Rule 60(b) of the Federal Rules of Civil
Procedure. However, in a recent case involving a motion to reopen pursuant to Rule 60(b), the
Commission denied without prejudice an operator's request that was based merely on "clerical
error," because this was not "a sufficiently detailed explanation." Eastern Associated Coal LLC,
30 FMSHRC
, slip op. at 1-3, No. WEVA 2008-488 (May 16, 2008). In that decision, in
which we noted the failure of operators to "provide meaningful explanations for their failure to
timely contest proposed penalty assessments" in several other cases, the Commission insisted
that if the operator chose to refile its request to reopen, it must "disclose with specificity its
grounds for relief." Id. at 3, n.2.
Similarly, in James Hamilton Constr., 29 FMSHRC 569, 570 (July 2007), the motion to
reopen was based on general assertions of"clerical error, mistake and excusable neglect" so that
''the citations were misplaced and not timely responded to." The Commission denied the request
without prejudice due to the operator's failure to provide any specific explanation to justify its
failure to file a timely contest and required the operator to disclose with specificity its grounds
for relief if it decided to refile. Id. at 570-71.
Just as the motions in Eastern Associated and James Hamilton were found to be
insufficiently clear, the submission by Atlanta Sand fails to provide sufficient information to
determine whether or not good cause may exist to reopen the final order. fudeed, the motion is
so lacking in facts that it does not even provide a basis for a remand of the matter to an
administrative law judge.

30 FMSHRC 606

The federal courts, like the Commission in the above-cited cases, have required
specificity in motions filed pursuant to Rule 60(b). fu Park Corp. v. Lexington Insurance Co.,
812 F.2d 894 (4th Cir. 1987), for example, the Fourth Circuit affirmed the district court's denial
of Lexington's motion for relief from a judgment (entered due to its failure to respond to a
complaint) filed pursuant to Rule 60(b)(l) and (6). Id. at 896. In support of its motion,
Lexington had filed only an affidavit explaining that the summons and complaint were received
in the mail room, signed for by a Lexington employee, disappeared, and thus were not brought to
the attention of the appropriate staff so that the matter could be referred to an attorney and an
answer filed. Id. at 897. The Fourth Circuit stated that because Lexington could give no reason
for the loss of the documents, the district court could not determine whether it had an acceptable
excuse for the default. Id. In holding that the district court did not abuse its discretion, the
Fourth Circuit noted that "to hold otherwise would be to allow defaulting defendants to escape
the consequences of their inaction simply by asserting that the legal process to which they failed
to respond was lost." Id.

In a similar case in which a 60(b) motion was based on the disappearance of a summons
and complaint, the district court, in denying the motion, emphasized that "[w ]here a party asserts
excusable neglect as the basis for its omission, it is insufficient for the party to state simply that
the summons and complaint, once properly accepted, disappeared." UMWA v. Banner Coal &
Land Co., 2006 WL 4524337, at *3 (S.D. W.Va. 2006).
Also, in U.S. v. $3,216.59 in U.S. Currency, 41F.R.D.433, 434 (D.S.C. 1967), the
district court denied a Rule 60(b) motion that had alleged the default was due to "excusable
neglect and mistake of counsel." It emphasized that
"[i]t, is not enough that movant assert that this default resulted from
a mistake. He must go farther. The nature of the mistake itself
must be stated, so that the Court may determine whether it is such a
mistake as to warrant relief under 60(b). Rule 9, Rules of Civil
Procedure expressly requires that in all averments of mistake "the
circumstances constituting ... mistake shall be stated with
particularity."

Id. at 435 (citation omitted). The Court noted that the affidavit upon which the movant based
his motion nowhere stated the nature of the mistake made by the attorney. Id.
Moreover, in Vela v. Western Electric Co., 709 F.2d 375, 377 (5th Cir. 1983), the Fifth
Circuit upheld the district court judge's refusal to grant relief when counsel for plaintiffs asserted
that his default was due to "excusable neglect" but advanced no explanation for his dereliction.
See also 21A Fed. Proc., L.Ed. § 51.139 (2008) ("In all averments of fraud or mistake, the
circumstances constituting fraud or mistake must be stated with particularity.... Thus, it is

30 FMSHRC 607

insufficient for a movant to assert that his or her default resulted from a mistake; rather, the movant must assert the nature of the mistake so that the court may determine whether it is a
mistake warranting relief under Rule 60(b)(1) - and this averment must be in the moving papers
and not merely in the argument."). ·Thus, whether it is the disappearance of documents, a mistake
by counsel, or, as asserted in this case, a miscommunication with cowtsel, terse justifications do
not suffice as a basis for relief.
The Commission has recognized that Rule 60(b) "'is a tool which ... courts are to use
sparingly .... '" JWR~ 15 FMSHRC at 789 (citation omitted). Consequently, a grant of relief
pursuant to 60(b) - or a remand to an administrative law judge - should not be based on general
assertions or conclusory statements as to why an operator failed to timely contest a penalty
assessment. Rule 60(b) was not intended as a license for parties to fail to exercise due diligence
in regard to litigation. See Brett Warren Weathersbee, Note: No More Excuses: Refusing to
Condone Mere Carelessness or Negligence under the "Excusable Neglect" Standard in Federal
Rule of Civil Procedure 60(b)(l),50 Vand. L. Rev. 1619, 1646 (Nov. 1997). Consequently, we
consider the submissions of Atlanta Sand to be insufficient, and deny the motion without
prejudice.

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 608

Chairman Duffy, dissenting:
Having reviewed Atlanta Sand's request and the Secretary's response, in the interests of
justice, I would remand this matter to the Chief Administrative Law Judge for a determination of
whether good cause exists for Atlanta Sand's failure to timely contest the penalty proposal and
whether relief from the final order should be granted. Unlike in the recent Commission cases
denying reopening that are cited by my colleagues, Atlanta Sand did not merely recite the words
of Rule 60(b) in asking for relief from its failure to contest the penalty on a timely basis. It
offered a general explanation of where in the process of contesting the penalty it erred and
presented a cogent argument in favor of our invoking the equitable relief provided by recourse to
the guidance of Rule 60(b).
Indeed, I note for the record that within the past year, this Commission granted this same
operator's motion to reopen a penalty assessment that had become a final order on the grounds
that the operator had "inadvertently omitted the proposed assessment in the records that it
transferred to counsel." Atlanta Sand & Supply Co., 29 FMSHRC 754 {Sept. 2007). The
operator's grounds for relief in that instance, a mis-communication between client and counsel,
are substantially similar to those presented here. If we are adopting a more rigorous standard for
considering the merits of reopening proceedings on the basis of the equity considerations
inherent in Rule 60(b), it will come as an unpleasant surprise to this operator.
While Atlanta Sand's explanation could have been more detailed, the lack of detail did
not lead the Secretary to oppose the motion to reopen. In a case like this, where a general and
plausible explanation has been offered and the Secretary does not oppose the motion, I do not
believe the administration of the Mine Act is advanced by requiring the operator to resubmit a
more detailed motion to the Commission, which, if the past is prologue, will likely remand it to
Chief Administrative Law Judge for the ultimate determination on whether reopening is
warranted.
Lastly, I am troubled by the majority's strict reliance upon federal court case law under
Rule 60(b). Commission Procedural Rule 1 is quite clear. First, "[o ]n any procedural question
not regulated by the Act, these Procedural Rules, or the Administrative Procedure Act ... the
Commission and its Judges shall be guided so far as practicable by the Federal Rules of Civil
Procedure .... " 29 C.F.R. § 2700.l{b) (emphasis added). Secondly, the Commission's rules
"shall be construed to secure the just, speedy and inexpensive determination of all
proceedings .... " 29 C.F.R. § 2700.l(c). In none of the four federal court cases applying Rule
60(b) that are cited by my colleagues is there any indication that the motion to reopen was
unopposed. Consequently, given our prior treatment of this operator, I fail to see how it is
"practicable" to use such cases as "guidance" in this instance, and do not believe doing so leads
to either a "speedy" or "inexpensive determination" in this proceeding.
Moreover, the Commission is not a federal court and is thus not bound by strictures that
may prevail in such a setting. For example, Commission hearings are not conducted in strict

30 FMSHRC 609

accordance with the Federal Rules of Evidence; on the contrary, our rules unequivocally allow
for the admission of hearsay testimony. 29 CFR § 2700.63(a)~
Over the past year the Commission has experienced an unprecedented increase in the
number of cases filed before it. New filings are approaching a five-fold increase over filings two
or three years ago. Requests to reopen appear to have increased proportiona~ely. It may well be
that the Commission needs to reconsider the circumstances under which it affords relief in cases.
such as this one before us now. I do not, however, believe that it is productive to conduct that
reconsideration piecemeal through adjudication. The mine safety community may be better
served by a rulemaking proceeding addressing motions to reopen final Commission orders.
In such a proceeding interested parties could state their views on what extent, if any, Rule 60(b)
and the cases interpreting and applying it should inform the Commission's decisions on motions
to reopen.

---

30 FMSHRC 610

Distribution:
Margaret S. Lopez, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
2400 N Street NW, 5th 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 611

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

July 16, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA)

Docket No. LAKE 2008-286
A.C. No. 12-02010-120120

V.

Docket No. LAKE 2008-287
A.C. No. 12-02295-120222

BLACK BEAUTY 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'). 1 On March 24, 2008, the Commission received from Black
Beauty Coal Company ("Black Beauty") motions by counsel seeking to reopen two penalty
assessments that had become final orders of the Commission pursuant to section lOS(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On June 13, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued to Black Beauty two proposed assessments. According to Black Beauty, it
elected to contest certain penalties on each of the proposed assessments and the appropriate
boxes were checked. Black Beauty states that it elected not to contest the remaining penalties

1

Pursuant to Commission Procedural Rule 12, 29 C.F.R. § 2700.12, on our own motion,
we hereby consolidate Docket Nos. Lake 2008-286 and LAKE 2008-287, as both dockets
involve similar procedural issues and similar factual backgrounds.

30 FMSHRC 612

and forwarded payment checks and the proposed assessment forms to MSHA within 30 days
from receipt of the proposed assessments. On September 12, 2007, MSHA issued delinquency
notices as a result of the unpaid penalties in the two proposed assessments. Thereafter, on
·
December 17, 2007, MSHA issued to Black Beauty civil penalty collection reports, which
indicated that the penalties that Black Beauty had contested were outstanding.

In response, the Secretary states that Black Beauty's payments for the uncontested
penalties and the penalty assessment forms were mailed to MSHA's payment processing office in
Pittsburgh, Pennsylvania. However, the Secretary states that all notices of contest must be sent to
MSHA's Civil Penalty Compliance Office in Arlington, Virginia. The Secretary concludes by
stating that she does not oppose the reopening of the assessments.
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 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 613

Having reviewed Black Beauty's request 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 Black Beauty's failure to timely contest the penalty proposals and
whether relief from the final orders should be granted. If it is determined that such relief is
appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700.

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 614

Distribution:

R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center
Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty 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 Com.mission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 615

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

July 16, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA)

Docket No. VA 2008-227
A.C. No. 44-07018-134221-02

v.
OLD DOMINION ENERGY, 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 8, 2008, the Commission received from Old
Dominion Energy, Inc. ("Old Dominion") 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. § 81S(a).

On December 13, 2007, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Proposed Assessment No. 000134221 to Old Dominion,
proposing penalties for two violations that previously had been issued to the company. Old
Dominion states that "due to a clerical error by the office staff that works for several coal
companies," the proposed penalty assessment form was not sent to MSHA's Civil Penalty
Compliance Office to contest the penalty for Citation No. 6628958, which it now seeks to
reopen. Old Dominion further states that it contested the assessment for Order No. 6628988 on
the same form. It asserts that it became aware that the penalty for the citation was not contested
when it received a Notice of Delinquency dated March 6, 2008, from the U.S. Department of
Labor. The Secretary states that she does not oppose Old Dominion's request to reopen, but
30 FMSHRC 616

notes that the operator was able to contest the proposed assessment_ for the other violation on the
same form.
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 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).
While Old Dominion explains that it failed to timely submit a contest of the proposed
assessment for the citation because of a clerical error, it does not explain why it contested the
other proposed assessment for the order, but not the assessment for the citation on the same form.
Nor does it provide any facts to support its claim of clerical error. Consequently, we deny Old
Dominion's request without prejudice. See Eastern Associated Coal, LLC, 30 FM~HRC 392,
394 (May 2008).

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 617

Distribution:
Julia K. Shreve, Esq.
Jackson Kelly PLLC
1600 Laidley Tower
P.O. Box 553, Charleston, WV

25322

W. Christian Schumarin, 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 618

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

July 16, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. PENN 2008-367
A.C. No. 36-06586-142894

WAROQUIERCOALCOMPANY

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 Commission received from DMS Safety
Services ("DMS") a letter seeking to reopen a penalty assessment issued to W aroquier Coal
Company ("Waroquier") 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 secti~n 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 5, 2008, the Departr):lent of Labor's Mine Safety'and Health Administration
("MSHA") issued to Waroquier Proposed Assessment No. 000142894, which proposed civil
penalties for several citations. DMS states that the company received the proposed assessment
on March 11, 2008. DMS alleges that the receptionist, who signed for receipt of the proposed
assessment, was unaware of the 30-day deadline and did not pass the form to the safety director
until April 7, 2008. DMS submits that the safety director did not know about the delay and
mailed the contest of the proposed assessment on April 17. The Secretary states that she does not
oppose this request to reopen the proposed assessment. However, she urges the operator to take
all steps necessary to ensure that, in the future, any penalty assessments are contested in a timely
manner.
30FMSHRC 619

We have held that in appropriate circumstances, we posses~ jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that~ if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed this request 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 W aroquier' s failure to timely contest the penalty proposal and whether relief
from the final order should be granted. On remand, the judge should determine whether DMS
has the legal authority to file this request on behalf of W aroquier. He should also evaluate the
reason why the safety director believed that the proposed assessment dated March 5, 2008 had
not been received until the beginning of April. 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 620

Distribution:
Brian D. Barrett, Safety Director
DMS Safety Services
551 State Street
Curwensville, PA 16833
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 621

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

July 16, 2008

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

Docket No. WEST 2008-773
A.C. No. 42~01890-135225

v.

CANYON FUEL 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 2, 2008, the Commission received from
Canyon Fuel Company, LLC ("Canyon") 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 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 July 19, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Order No. 7287633 to Canyon after a regular safety inspection. Canyon filed a
notice of contest of the order, which has been assigned Docket No. WEST 2007-739-R. On

30 FMSHRC 622

January 3, 2008, MSHA issued an assessment covering the order with a proposed penalty of
$27,959. In its motion, Canyon states that its safety manager indicated to his administrative
assistant that the penalty for Order No. 7287633 should not be paid but "overlooked mailing" the
contest of the penalty to MSHA. In March, Canyon requested a copy of the Secretary's Petition
for Assessment of Penalty and learned that no penalty contest had been filed.

In response, the Secretary states that she does not oppose Canyon's request to reopen.
However, the Secretary notes that Canyon recently claimed mistake or inadvertence as the basis
for seeking to reopen an assessment of$59,392, which had become final. See Canyon Fuel Co.,
29 FMSHRC 987 (Dec. 2007). This matter is pending before the Chief Administrative Law
Judge.
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 623

Having reviewed Canyon's request 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 Canyon'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 624

Distribution:
Laura E. Beverage, Esq.
Christopher G. Peterson, 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
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 22nd 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 625

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

July 21, 2008

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK 2008-166-M
A.C. No. 19-00504-137456

V.

BRSlNC.

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 and 28, 2008, the Commission received from
BRS Inc. ("BRS") letters 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 29, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Penalty Assessment No. 000137456 to BRS for several citations.
On May 1, 2008, the Commission received from BRS a letter requesting that this case be
reopened so that the operator can set up a payment plan due to "economical hardship." On
May 15, the Commission received an opposition from the Secretary, in which the Secretary states
that the operator's reason for its request to reopen is not one of the grounds for relief set forth in
Rule 60(b) of the Federal Rules of Civil Procedure.
On May 28, 2008, the Commission received a second letter from BRS requesting that the
case be reopened so that BRS can contest the citations issued. The operator explains that it
believes that some of the citations should not have been issued, and that it had previously alleged

30 FMSHRC 626

hardship because it believed the civil penalties would be reduced if the operator proved its
compliance. On May 30, the Commission received a response from the Secretary, in which the
Secretary states that in its second request, BRS again failed to allege reasons sufficient to allow
reopening under Rule 60(b). She notes in particular that the operator still has not explained its
failure to timely contest the proposed assessment. The Secretary requests that the Commission
provide the operator with an opportunity to satisfy the requirements for reopening. She states
that once the operator submits a response, the Secretary will indicate whether she believes that
reopening is warranted.
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) 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.

30 FMSHRC 627

Because BRS's request for relief does not explain why the company failed to contest the
proposed assessment in a timely manner and is not based on any of the growids for relief set forth
in Rule 60(b), we hereby deny the request for relief without prejudice. See Marsh Coal Co., 28
FMSHRC 473, 475 (July2006). The words "without prejudice" mean BRS may submit another
request to reopen the case so that it can contest the citations and penalty assessments. 1

Robert F. Cohen, Jr., Commissioner

1

If BRS submits another request to reopen the case, it must identify the specific citations
and assessments it seeks to contest. BRS 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
gf new evidence, or fraud, misrepresentation or other misconduct by the adverse party. BRS
should include a :full description of the facts supporting its claim of"good cause," including how
the mistake or other problem prevented BRS from responding within the time limits provided in
the Mine Act, as part of its request to reopen the case. BRS should also submit copies of
supporting documents with its request to reopen the case.

30 FMSHRC 628

Distribution
Daniel Kirker
BRS Inc.
1453 Plymouth Street
Bridgewater, MA 02324
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 Boulevard, 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001

30 FMSHRC 629

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

July 24, 2008
Docket No. WEST 2008-992-M
A.C. No. 05-03153-142037

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

Docket No. WEST 2008-993-M
A.C. No. 05-01197-145611

v.
Docket No. WEST 2008-994-M
A.C. No. 05-03780-145617

DENISON MINES (USA) CORP.

Docket No. WEST 2008-995-M
A.C. No. 42-00470-142235

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 Denison
Mines (USA) Corp. ("Denison") a letter 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).
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, 29 C.F.R. § 2700.12, on our own motion,
we hereby consolidate Docket Nos. WEST 2008-992-M, WEST 2008-993-M,
WEST 2008-994-M, and WEST 2008-995-M, as all dockets involve similar procedural issues
and similar factual backgrounds.

30 FMSHRC 630

On February 28, 2008, the Department of Labor's Mine Safety and Health Administration.
("MSHA") issued Proposed Assessment Nos. 000142037, and 000142235 to Denison, proposing
civil penalties for various citations. On April 3, 2008, MSHA issued Proposed Assessment Nos.
000145611 and 000145617, proposing penalties for other citations. In its request for relief,
Denison states that it believed that it would be able to "discuss/contest" the citations during a
meeting in Denver in April. It further explains that "[aJs this did not occur, we a,re later than we
had planned on our response." The Secretary states that she does not oppose the reopening of the
proposed assessments.
Having reviewed Denison's request 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 Denison's failure to timely contest the penalty proposals and
whether relief from the final orders should be granted. If it is determined that such relief is
appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700.

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 631

Distribution:
James A. Fisher
General Mine Superintendent
Denison Mines (USA) Corporation
9244 W. Highway 141
P.O. Boxl60, Egnar, CO 81325
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 22209-2296
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 632

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

July 25, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2008-707-M
A.C. No. 09-00023-139485

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 May 21, 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 l05(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On February 12, 2008, the Department of Labor's Mine Safety and Health Administration
issued Proposed Penalty Assessment No. 000139485 to Lafarge, proposing a civil penalty for
Citation No. 7794610. In its request, Lafarge states that it intended to timely contest the
proposed penalty but that it failed to do so due to "administrative error."

The Secretary states that Lafarge's conclusory assertion of the cause for its failure to
timely file does not constitute a showing of the circumstances required to obtain reopening under
Fed. R. Civ. P. 60(b). She requests that the Commission provide the operator with an
opportunity to satisfy the requirements for reopening. The Secretary states that once the operator
submits a response, she will indicate whether she believes that reopening is warranted.
30 FMSHRC 633

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, ifthe defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Lafarge's motion to reopen and the Secretary's response thereto, we
agree with the Secretary that Lafarge has failed to provide a sufficiently detailed explanation for
its failure to timely contest the proposed penalty assessment. Lafarge's conclusory statement that
its failure to timely file was due to "administrative error" does not provide the Commission with
an adequate basis to justify reopening. Accordingly, we deny without prejudice Lafarge's
request. See, e.g., Eastern Associated Coal, LLC, 30 FMSHRC _ , slip op. at 2, No. WEVA
2008-488(May16, 2008); James Hamilton Constr., 29 FMSHRC 569, 570 (July 2007).

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 634

Distribution:
William K. Doran, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
2400 N Street NW, 5th 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 635

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

SUITE9500
WASHINGTON, DC 20001

July 29, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2008-879
A.C. No. 05-03836-123538

v.
TWENTYMILECOALCOMPANY

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 21, 2008, the Commission received from
Twentymile Coal Company ("Twentymile") a motion made by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

On July 31, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000123538 to Twentymile, proposing penalties for
33 citations and orders that previously had been issued to the company's Foidel Creek Mine. On
December 10, 2007, Twentymile filed a request to reopen this proposed assessment, stating that
the mine promptly processed and forwarded the assessment to Twentymile's corporate office for
payment, but that due to a processing error, the 26 penalties that Twentymile was not contesting
were not paid until October 2007. On April 4, 2008, the Commission denied without prejudice
Twentymile's request because it neglected to explain the company's separate failure to return the
assessment form to MSHA in order to contest the seven penalties that it intended to contest.
Twentymile Coal Co., 30 FMSHRC 177, 178 (Apr. 2008).
30 FMSHRC 636

Twentymile now explains that its failure to timely submit its contest of the proposed
penalty assessment was due to a change in its internal accounting practice. Twentymile states
that under its former procedure, its safety assistant mailed the assessment forms indicating which
citations and orders it wished to contest to MSHA, along with payment for the citations and
orders it did not wish to contest. Twentymile asserts that beginning in August 2007, the
company and its affiliate instituted a new accounting system, which required all payments to be
made from its corporate headquarters in St. Louis, Missouri. Twentymile maintains that on
August 28, 2007, its safety assistant forwarded the assessment form to the corporate headquarters
with a request for payment of the uncontested penalties. It states that due to a processing error
involving the new accounting system, its corporate headquarters did not prepare a check for
payment until October 17, 2007. Twentymile further states that its safety assistant assumed that
the corporate offices submitted to MSHA a check for the penalties it did not wish to contest,
along with the proposed assessment form indicating which penalties it sought to contest. It
asserts that upon discovering that the contest had not been timely submitted, its safety assistant
filed with the Commission a request to reopen the proposed assessment on December 4, 2007,
which the Commission denied without prejudice. Twentymile further states that it is now aware
that the marked assessment forms and payment for uncontested citations and orders must be
submitted separately, and has remedied its practices accordingly. Twentymile asserts that its
failure to contest was due to inadvertence, mistake or miscommunication within its organization
and requests that the Commission reopen the proposed assessment. The Secretary states that she
does not oppose Twentymile's request 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.
§ 2700.1 (b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

30 FMSHRC 637

-Having reviewed Twentymile'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 Twentymile'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 638

Distribution:
R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty A venue
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty 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 639

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

August 1, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA)

Docket No. SE 2008-589-M
A.C. No. 01-03100-136465
Docket No. SE 2008-590-M
A.C. No. 01-03126-136466

v.
BLOUNT SPRINGS MATERIALS

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 April 17, 2008, the Commission received from Blount
Springs Materials {"Blount") letters seeking to reopen two penalty assessments that had become
final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
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 17, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued two proposed penalty assessments to Blount. Blount sent its contests of the
proposed assessments to MSHA on March 21, 2008. On March 27, 2008, MSHA informed
Blount that it had missed the 30~day deadline and that the penalties were due. Blount states that
it failed to contest the penalty assessments within the required time because of a change in its
safety directors. The Secretary states that she does not oppose the reopening of the assessments.

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers SE 2008-589-M and SE 2008-590-M, both captioned Blount Springs
Materials and involving similar procedural issues. 29 C.F.R. § 2700.12.
30 FMSHRC 640

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, 786N89 {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).
Having reviewed Blount' s 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 Blount's
failure to timely contest the penalty proposals and whether relief from the final orders should be
granted. The Chief Administrative Law Judge should obtain from Blount evidence as to the
circumstances concerning why the change in personnel resulted in a failure to timely respond to
the penalty assessments. 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 641

Distribution:
Tony Barnett
Blount Springs Materials
3280 County Road 437
Cullman, AL 35057
AG Safety Consultants
516 Poplar Street
Jellico, TN 37762
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 642

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

August 1, 2008
Docket No. WEST 2008-823-M
A.C. No. 02-02964-135305

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

Docket No. WEST 2008-824-M
A.C. No. 02-02130-135308

V.

Docket No. WEST 2008-825-M
A.C. No. 02-03181-135310

PIONEER SAND 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"). 1 On April 11, 2008, the Commission received from Pioneer
Sand Company ("Pioneer") letters 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 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 8, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued three proposed penalty assessments to Pioneer. Pioneer states that it indicated
on the proposed penalty assessment forms that it wanted to contest all the penalties and
"promptly" mailed the forms to MSHA. However, it allegedly learned that MSHA had not
received the penalty contest forms when MSHA sent delinquency notices on April 3, 2008.

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEST 2008-823-M, WEST 2008-824-M, and WEST 2008-825-M,
all captioned Pioneer Sand Company and involving similar procedural issues. 29 C.F.R.
§ 2700.12.
30 FMSHRC 643

Although the Secretary notes that she has no record of receiving the penalty contest forms, 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) ofthe
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R'. .
§ 2700.l(b) {"the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); .!WR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a 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 Pioneer's 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
Pioneer's failure to timely contest the penalty proposals and whether relief from the final orders
should be granted. The Chief Administrative Law Judge should obtain from Pioneer supporting
evidence regarding when Pioneer mailed the contest forms. 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 644

Distribution:
Tammy Mixdorf
Executive Administrator
Pioneer Sand Company
745 N. Gilbert Road, #124
Gilbert, AZ 85234
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 645

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

August 6, 2008

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

Docket No. CENT 2006-212-RM

v.
PHELPS DODGE TYRONE, INC.

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

DECISION
BY THE COMMISSION:

In this contest proceeding arising under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (2000) ("Mine Act" or "Act"), Administrative Law Judge Richard W.
Manning upheld a citation against Phelps Dodge Tyrone, Inc. ("Phelps Dodge") for violating the
requirement 9f30 C.F.R. § 50.10 that a mine accident be reported to the Department of Labor's
Mine Safety and Health Administration ("MSHA") within 15 minutes. 1 29 FMSHRC 669 (July
2007) (ALJ). Phelps Dodge petitioned for review of the judge's decision, which the Commission
granted.

1

Section 50.10 provides in pertinent part that an "operator shall immediately contact
MSHA at once without delay and within 15 minutes ... once the operator knows or should know
that an accident has occurred." 30 C.F.R. § 50.10. Section 50.2(h)(6) defines "[a]ccident" to
include "in surface mines and surface areas of underground mines, an unplanned fire not
extinguished within 30 minutes of discovery." 30 C.F.R. § 50.2(h)(6).
30 FMSHRC 646

I.

Factual and Procedural Background
Phelps Dodge's Tyrone Mine is a large surface copper mine in Grant County, New
Mexico. 29 FMSHRC at 669. In 2006, Phelps Dodge sold one of the electric mining shovels it
had been using there to P&H Mine Pro ("P&H") and moved the shovel to what was then the
salvage yard at the mine. Id.; Tr. 126-27, 131; PD Ex. 1. The salvage yard was several miles
away from active mining operations. 29 FMSHRC at 669; Tr. 126-27. P&H removed all of the
shovel's usable parts, leaving only the shell of the shovel, referred to in this case at its "car
body." 29 FMSHRC at 669; Tr. 131-32; Gov't Ex. 2. The car body was left resting on stacked
railroad ties in the salvage yard. 29 FMSHRC at 670; PD Ex. 3.
At that point, Metal Management of Arizona, LLC ("Metal Management") became
involved in further salvage work on the car body. Specifically, Metal Management was to cut the
car body into smaller pieces so that the scrap metal could be hauled away from the mine. 29
FMSHRC at 669-70; Tr. 129-30.
Because oxyacetylene torches were to be used in cutting the car body, Phelps Dodge
required that Metal Management complete a "hot work" permit at the mine. 29 FMSHRC at
670; Tr. 132, 188; PD Ex. 4. Upon arriving at the mine around 6:00 a.m. on June 17, 2006,
Metal Management's Raudel Davila filled out the permit form. 29 FMSHRC at 669-70; Tr. 132;
PD Ex. 4. Davila supervised two other Metal Management employees, Rafael Dominguez and
Sergio Caudillo, in the salvage operation; 29 FMSHRC at 670; Tr. I 00-01. The permit indicated
that Davila would stand fire watch over the operation. 29 FMSHRC at 670; PD Ex. 4. None of
the three Metal Management employees spoke much English. 29 FMSHRC at 673; Tr. 22, 101.
The account of further events that morning differs among the witnesses, and even
between testimony 'and statements given by the same witness. None of the three Metal
Management employees ~estified at the later hearing in this case. 29 FMSHRC at 675. Instead,
each submitted written statements later that day to Phelps Dodge that were subsequently
translated and entered into the record below. Id. at 673; Tr. 103-05; Gov't Exs. 5-7. The three
explained that grease on the car body towards its center was ignited by the torches and began
burning, and that the car body consequently was on fire by 7:30 a.m. 29 FMSHRC at 673; Gov't
Exs. 5-7.
Around that same time, Phelps Dodge mine shift supervisor Yancy McCauley was
driving along a mine road when he observed thick black smoke coming from the salvage yard, so
he returned to investigate. 29 FMSHRC at 670; Tr. 16, 18-19. In a statement he drafted later
that day, McCauley stated that there was a fire inside the car body of the shovel when he first
arrived but that he ''wasn't sure at that time ifit was a concern or not." 29 FMSHRC at 674; Tr.
17; Gov't Ex. 4.

30 FMSHRC 647

After briefly speaking with Metal Management supervisor Davila, McCauley left to
resume his work duties and called the front gate to alert the Phelps Dodge fire brigade of the need
to stand fire watch at the salvage area. 29 FMSHRC at 670; Tr. 28-31. Consequently, Phelps
Dodge firefighter Hank Bobo was told by the mine dispatch operator that he was needed at the
salvage yard for fire watch. 29 FMSHRC at 671; Tr. 61-63. Bobo drove the mine's fire truck to
the scene. 29 FMSHRC at 671; Tr. 63.
Bobo testified that he arrived there shortly after 9:00 a.m. 29 FMSHRC at 671; Tr. 6566. According to the Written statement Bobo prepared and gave to MSHA later in the day,
employees of Metal Management were then spraying water on the bottom of the car body, and
"[t]here wasn't a lot of flames then but a lot of smoke." 29 FMSHRC at 672, 674; Gov't Ex. 8.
After finding a Spanish-speaking Phelps Dodge electrician to interpret, Bobo instructed
the Metal Management employees to move away from the smoke, because he did not believe that
they were wearing the proper protective equipment, given the amount of smoke they could be
inhaling. 29 FMSHRC at 671; Tr. 66-67, 81-82. Bobo also called McCauley, who returned to
the scene around 9:15 a.m. 29 FMSHRC at 671; Tr. 33-35, 67. Bobo explained to him that
company policy required that three firefighters and a water truck be used when the fire brigade
was activated. 29 FMSHRC at 671; Tr. 33-35. McCauley arranged to get the two additional
firefighters and the mine's water truck to the area, and remained there for about 10 minutes. 29
FMSHRC at 671; Tr. 35-36.
In the statement he originally gave to MSHA, Bobo said that he put on his bunker gear,
and while he saw flames inside the car body, he knew he could not douse them using the hose he
had. Gov't Ex. 8. When the flames started coming out of the bottom of the car body, however,
he began shooting water on the fire. Id. When the water truck arrived, he directed that its
cannon be used to get water to the inside of the car body. Id.

McCauley visited the car body again after 10:30 a.m. 29 FMSHRC at 671; Tr. 36-37.
The statement that he gave MSHA indicated that the fire had been put out by that time, after
Bobo had decided that it needed to be extinguished. Gov't Ex. 4. McCauley later testified that,
becam~e he understood that the fire was extinguished in about 20 minutes, he believed that the
fire did not have to be reported to MSHA. 29 FMSHRC at 671; Tr. 46-49. 2
2

McCauley states that he based this conclusion, in part, on an event which he understood
to have occurred earlier in the year, where Phelps Dodge reported to MSHA as a "fire" an
incident in which smoke inside an operating shovel activated the shovel's fire suppression
system. 29 FMSHRC at 671-72; Tr. 4 7-48. Matthew Main, a health and safety specialist at the
mine who in June 2006 became the mine's health and safety manager, reported the event to
MSHA as a mine fire lasting more than 30 minutes because there was smoke coming from the
shovel for more than 30 minutes. 29 FMSHRC at 672; Tr. 97, 123. At the conclusion of its
investigation of the incident, MSHA decided that the event was not immediately reportable as a
mine fire under section 50.l 0. 29 FMSHRC at 672; Tr. 125; PD Ex. 2 at 4.
30 FMSHRC 648

McCauley tried to call Phil Tester, the company's safety supervisor on the shift, at about
10:45 a.m., for assurance that he was not required to call MSHA to report the fire. 29 FMSHRC
at 672; Tr. 38. However, McCauley was not able to speak with Tester until around 11 :30 a.m.
29 FMSHRC at 672; Tr. 39. After McCauley used the word "fire," Tester immediately ended the
conversation and called MSHA at 11 :40 a.m. to report the incident. 29 FMSHRC at 672; Tr. 39,
99, 161.
Tester and Matthew Main, the mine's health and safety specialist, also went to the car
body at about 1:00 p.m. so that Main could investigate the incident. 29 FMSHRC at 672; Tr.
100-01. Main spoke with a number of witnesses and had the Metal Management employees
provide their written statements for later translation. 29 FMSHRC at 672; Tr. 103-06. Main also
called Benny Lara, MSHA's acting field office supervisor in Albuquerque. 29 FMSHRC at 672;
Tr. 106. Lara asked for a written report of the event and issued an oral order of withdrawal for
the car body pursuant to section 103(k) of the Act, 30 U.S.C. § 813(k), leading Phelps Dodge to
cordon it off. 29 FMSHRC at 672; Tr. 106, 111, 134-35.
Later in the day, Main e-mailed Lara a summary of the event, writing that while working
on the car body, around 7:30 a.m., the Metal Management employees had "started afire." 29
FMSHRC at 672 (emphasis added by judge); Gov't Ex. 3. ·Main informed Lara that the "incident
commander decided to let the grease on the car body burn itself out," but that later he "made the
decision to put the fire out and the fire was out by 10:45 A.M." 29 FMSHRC at 672; Govt' Ex.
3. Main later testified that these statements were not accurate as they were the result of an
incomplete investigation, and that any fire only lasted 20 minutes, between 9:30 and 9:50 a.m.
29 FMSHRC at 675; Tr. 112, 115, 146'-47.
After an investigation, MSHA issued Citation No. 6244790, which alleged a violation of
30 C.F.R. § 50.10 on the ground that a fire started at 7 :30 a.m, the fire was not extinguished
within 30 minutes of discovery, and MSHA was not notified within 15 minutes of that failure to
extinguish the fire. ·29 FMSHRC at 670; Gov't Ex. 1. Phelps Dodge contested the citation, and a
hearing was held.
At the hearing, McCauley testified that he did not see any flames when he first arrived at
the scene ofthe incident at 7:30 a.m. 29 FMSHRC at 670, 674; Tr. 25, 27, 43-44, 50-51. When
asked about his earlier statement that he saw a fire when he first arrived, he testified that he used
the word "fire" as "a generalization of the scene," believing the smoke he saw coming from the
car body to be an indication of a fire. 29 FMSHRC at 674; Tr. 20-22. McCauley also testified
that he saw no flames during this second trip to the scene. 29 FMSHRC at 671; Tr. 43-44.
Bobo also contradicted his earlier statement, testifying that upon arriving at the scene he
saw no flames at all. 29 FMSHRC at 671; Tr. 68. Bobo testified that during the 9:00 to 9:30
a.m. time period, he prepared fire hoses, set out air packs, and put on his bunker gear. 29

30 FMSHRC 649

FMSHRC at 671; Tr. 67-68, 83-84. During that time, he observed the car closely for flame,
including through the holes cut into its sides, and saw none. 29 FMSHRC at 671; Tr. 69-70, 8384.

In the account that he gave at the hearing, Bobo stated that it was not until about 9:30
a.m. that he saw flames inside the car body. 29 FMSHRC at 671; Tr. 68, 72, 84. According to
his testimony, as soon as he spotted flames, he put on his air pack and began spraying the flames
with water from the fire truck, dumping, in his estimate, about 300 gallons of water on the car
body in the next 20 miimtes. 29 FMSHRC at 671; Tr. 72, 75, 77. Bobo testified that he
extinguished all of the flames that he could see by around 9:50 a.m., right after which the water
truck arrived. 29 FMSHRC at 671; Tr. 72, 75, 78, 85-86. Bobo testified that he had the water
truck operator spray water at the smoke that was still rising from the car body, so as to cool the
car body down and prevent more flare-ups. 29 FMSHRC at 671; Tr. 79, 86.
In his decision, the judge accepted Phelps Dodge's position that flames must be present
for there to be a "fire" under the dictionary definition of that term. 29 FMSHRC at 674. The
judge found that a fire started soon after 7:30 a.m., and was not completely extinguished in less
than 30 minutes, as he further found it to have continued until it was fully extinguished at 9:50
a.m. Id. at 674-76. He relied primarily on the statements that witnesses provided shortly after
the event and found them more probative than some of the witnesses' later accounts, including
their trial testimony. Id. at 674-75. While acknowledging that the appearance of flames may
have only been brief and intermittent, with each flare-up lasting less than 30 minutes, the judge
rejected Phelps Dodge's argument that the company was not required to notifyMSHA of the
occurrence of a fire. Id. at 675-76. The judge held that once flames appear, the mine operator is
under the obligation to report the fire to MSHA unless the fire is totally extinguished within 30
minutes. Id. at 676. The judge also concluded that the evidence of preparation for a fire
occurring failed to establish that the fire was not "unplanned" and thus outside the ambit of the
regulation. Id. at 676-77. The judge held that the regulatory language provided Phelps Dodge
with sufficient notice that the conditions that day constituted an accident as defined by section
50.2(h)(6). Id. at 677. However, the judge reduced the negligence finding from high to low and
affirmed the citation as modified. Id. at 677-78.
II.
Disposition
Phelps Dodge maintains that any fire that took place was not "unplanned" under the plain
meaning of that term, and points to seven facts that it believes establishes that the fire was
actually a planned fire. PDR at 18-20.3 The operator also argues that because there is no
evidence that flames were present for 30 minutes, the judge erred in affirming the citation. Id. at
20-24. Phelps Dodge would also have the Commission reverse the judge's .finding that it was on

3

Phelps Dodge adopted its PDR as its initial brief.
30 FMSHRC 650

notice of the requirements of the regulation, both with respect to the judge's interpretation of
''unplanned" and "extinguished," as well as the Secretary's interpretation, proffered here, that the
smoldering of the car body was sufficient evidence by itself of a fire. Id. at 24-25; PD Reply Br.
at 11-15.
The Secretary submits that the meaning of "fire" is ambiguous, and that there is reputable
authority to consider a "fire" to include instances not just of flaming, but also those marked by
smoldering, glowing, or non:flaming combustion. S. Br. at 13-17. According to the Secretary,
the Commission should apply such an interpretation of "fire" in this instance and affirm the
judge's decision in result. Id. at 17-20. In the alternative, the Secretary would have the
Commission uphold the interpretation adopted by the judge and find that substantial evidence
supports the judge's application of that interpretation. Id. at 20-27. The Secretary further argues
that the judge properly found that the fire was not planned, and that the operator was on notice of
the regulatory requirements in this instance. Id. at 27-30,
At issue in this case is whether, pursuant to section 50.10, an "accident" occurred which
Phelps Dodge was required to report to MSHA within the 15 minutes required by the standard.
"Accident" is defined in section 50.2{h), and in this instance the category of accident at issue is
"an unplanned fire." Section 50.2{h){6) specifies that an "[a]ccident" includes "[i]n underground
mines, an unplanned mine fire not extinguished within 10 minutes of discovery; in surface mines
and surface areas of underground mines, an unplanned fire not extinguished within 30 minutes of
discovery." 30 C.F.R. § 50.2{h){6) {emphasis added). 4
Where the language of a regulatory provision is clear, the terms of that provision must be ·
enforced as they are written unless the regulator clearly intended the words to have a different
meaning or unless such a meaning would lead to absurd results. Dyer v. United States, 832 F.2d
1062, 1066 {9th Cir. 1987) {citations omitted); see also Utah Power & Light Co., 11 FMSHRC
1926, 1930 {Oct. 1989) {citations omitted); Consolidation Coal Co., 15 FMSHRC 1555, 1557
{Aug. 1993). If, however, a standard is ambiguous, courts have deferred to the Secretary's
reasonable interpretation_ of the regulation. See Energy West Mining Co. v. FMSHRC, 40 F.3d
457, 463 {D.C. Cir. 1994); accord Sec'y ofLabor v. Western Fuels-Utah, Inc., 900 F.2d 318, 321
{D.C. Cir. 1990) {"agency's interpretation ... is 'of controlling weight unless it is plainly

4

On June 17, 2006, sections 50.10 and 50.2{h){6) were each actually an emergency
temporary standard ("ETS"). 71 Fed. Reg. 12,252, 12,260 (Mar. 9, 2006): Each was based on
existing MSHA regulations, except that unplanned underground mine fires not extinguished
within 10 minutes were to be reported to MSHA, rather than just those not extinguished within
30 minutes, as had been the case previously. That change is not relevant to this case. See
generally 71 Fed. Reg. 71,430, 71,434-36, 71,452 {Dec. 8, 2006) (adoption of each ETS as new
permanent standard).

30 FMSHRC 651

erroneous or inconsistent with the regulation"') (quoting Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410, 414 (1945) (other citations omitted)). 5
The "language of a regulation ... is the starting point for its interpretation." Dyer, 832
F.2d at 1066 (citing Consumer Prod. Safety Comm 'n v. GTE Sylvania, Inc., 447 U.S. 102, 108
(1980)). In the absence of a regulatory definition or technical usage of a word, the Commission
would normally apply the ordinary meaning of the word. See Bluestone Coal Corp., 19
FMSHRC 1025, 1029 (June 1997); Peabody Coal Co., 18 FMSHRC 686, 690(May1996),
ajfd, 111F.3d963 (D:C. Cir. 1997) (table).
A.

Whether a Fire Occurred

Below, the Secretary did not directly address the issue of how the term "fire,'' as it is used
in section 50.2(h)(6), should be interpreted. Rather, she simply relied upon the statements of the
three Metal Management employees, who described how their use of torches in cutting the car
body resulted in an ignition and fire. S. Post-Hearing Br. at 4. 6 In contrast, Phelps Dodge
directly addressed the issue of interpretation and argued that the presence of flame was necessary
for there to be a "fire" under the plain meaning of that term. PD Post-Hearing Br. at 19-20.
The judge, relying upon a dictionary definition of "fire," agreed with Phelps Dodge that
flame must be present for there to be a fire, and held that grease that was smoking without any
flames did not qualify as a fire that must be immediately reported under section 50.10. 29
FMSHRC at 674. Specifically, the judge relied upon a definition of "fire" which describes it as a
"rapid, persistent chemical change that releases heat and light and is accompanied by flame,
especially the exothermic oxidation of a combustible substance." Id. (quoting American
Heritage Dictionary ofthe English Language 62 (4th ed. 2006)).

5

The Secretary's interpretation of a regulation is reasonable where it is "logically
consistent with the language of the regulation [] and ... serves a permissible regulatory
function." General Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (citation omitted).
The Commission's review, like the courts' review, involves an examination of whether the
Secretary's interpretation is reasonable. Energy West, 40 F.3d at 463 (citing Sec'y ofLabor on
behalfofBushnell v. CanneltonJndus., Inc., 867 F.2d 1432, 1439 (D.C. Cir. 1989)); see also
Consolidation Coal Co., 14 FMSHRC 956, 969 (June 1992) (examining whether Secretary's
interpretation was reasonable).
6

Metal Management supervisor Davila, said that "at about 7:30 the fire started," as the
torches "made sparks and ignited in the center of the structure...." 29 FMSHRC at 673; Tr.
103-05; Gov't Ex. 5. Mr. Caudillo confirmed in his written statement that at "7:30 we started the
fire." 29 FMSHRC at 673; Gov't Ex. 6. In his written statement, Mr. Dominguez attributed the
fire to cutting into the car body where there was a lot of grease and indicated that the grease
started to burn after about 15 minutes. 29 FMSHRC at 673; Gov't Ex 7.
30 FMSHRC 652

Commissioners disagree as to how to address the judge's conclusion that a "fire" requires
the presence of flames. The issue is discussed below in separate opinions, one by Chairman
Duffy and Commissioner Young (slip op. at 18-19) and one by Commissioners Jordan and
Cohen (slip op. at 12-15). It is not necessary to reach this issue, however, because the full
Commission agrees that the judge's ultimate conclusion- that an unplanned fire which was not
extinguished within 30 minutes of discovery - was based on substantial evidence and correct
legal analysis.
The judge found that the statements provided to MSHA on the day of the incident, in
which witnesses used the term "fire" to describe what they saw at times between 7:30 and 9:30
a.m., established that there were flames observed well before 9:30 a.m. 7 The judge found that
these statements were more reliable than the hearing testimony of some of those witnesses that
they only saw smoke, and not flames. 29 FMSHRC 674-76. In essence, the judge credited the
earlier version of events provided by witnesses over the later version.
A judge's credibility determinations are entitled to great weight and may not be
overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541(Sept.1992);
PennAllegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). Nonetheless, the Commission will
not affirm such determinations if they are self-contradictory or if there is no evidence or dubious
evidence to support them. In re: Contests ofRespirable Dust Sample Alteration Citations, 17
FMSHRC 1819, 1881 n.80 (Nov. 1995), aff'd sub nom. Secretary ofLabor v. Keystone Coal
Mining Corp., 151F.3d1096 (D.C. Cir. 1998) ("Dust Cases") (citing Ona Corp. v. NLRB, 729
F.2d 713, 719 (11th Cir. 1984)); Consolidation Coal Co., 11FMSHRC966, 974 (June 1989).
Here, there is nothing in the earlier version of events that the judge credited that is selfcontradictory, and those versions are amply documented in the record. The statements provided
on the day of the event by all four witnesses who were at the scene of the incident at 7:30 ·
a.m.-the three Me,tal Management employees and then McCauley-all described the scene as a
"fire" as of7:30 a.m., and Main used that description in his e-mail message to MSHA's Lara
later that day. Gov't Exs. 3, 4, 5, 6, 7. Moreover, Bobo's statement that day mentioned seeing
some flames as soon as he arrived on the scene around 9:00 a.m. Tr. 63-66; Gov't Ex. 8.
While McCauley, Bobo, and Main all later testified to the contrary at the hearing, the
judge was free to credit their earlier statements over their trial testimony. The Commission has
recognized that, because the judge "has an opportunity to hear the testimony and view the
witnesses[,] he is ordinarily in the best position to make a credibility determination." Dust
7

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means '"such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
.
U.S. 197, 229 (1938)).
30 FMSHRC 653

Cases, 17 FMSHRC at 1878 (quoting Ona, 729 F.2d at 719). Consequently, we uphold the
judge's finding that flames were observed at the scene as early as 7:30 a.m., and by Bobo as early
as 9:00 a.m., and that the flames were not fully extinguished until 9:50 a.m.
B.

Whether the Fire That Occurred Was "Unplanned"

As it did below, Phelps Dodge contends that any fire that occurred at the mine on
June 17, 2006, was not "unplanned," and thus did not qualify as a reportable accident. PDR at
18-20; PD Reply Brief at 1-4. The judge rejected this argument on the ground that while the
evidence suggests that Phelps Dodge and Metal Management knew that a fire was possible and
took some of the precautions necessary to isolate and fight a fire, those precautions were not
sufficient to establish that the fire that actually occurred was "planned." 29 FMSHRC at 676-77.

On review, Phelps Dodge, invoking the dictionary definition of"plan," argues that
because the evidence shows that the mine fire that day was an event that Metal Management and
Phelps Dodge to one degree or another "had in mind" and "projected" would occur, any
subsequent fire cannot be considered to be "unplanned." PDR at 18; PD Reply Br. at 2. 8 The
Secretary urges the Commission to uphold the judge on this issue. S. Br. at 29-31. According to
the Secretary, a planned fire is one in which there is an intent to have a fire, and in this instance
the evidence shows that the fire in the car body was not intended. Id. at 30.
The regulation's use of the term ''unplanned fire" clearly means that "planned" fires are
excluded from the scope of the regulation. This is entirely consistent with the overall regulation,
because a "planned" event can hardly be considered to be an "accident."
All four Commissioners agree in this instance that the fire that occurred was unplanned,
and thus uphold the judge's determination. Their rationales are set forth in the separate opinions
below.

8

As evidence of the event's planned nature, Phelps Dodge points out that: (I) the
salvage work took place in the scrap yard, which was situated away from other aspects of the
mine's operations; (2) it was not unexpected that Metal Management would use an oxyacetylene
torch to cut the car body, and thus fire would be involved; (3) the Metal Management supervisor
filled out a Phelps Dodge hot work permit upon arriving at the mine that day, under which it was
acknowledged that one of its employees would stand fire watch; (4) the fire watch was
established; (5) the Metal Management employees had fire extinguishers and a pressure watcher
with them at the car body; (6) Phelps Dodge dispatched its fire truck to augment the fire watch;
and (7) the truck was used to extinguish the flames on the car body when the need to do so arose.
PDR at 18-20.

30 FMSHRC 654

C.

Whether the Fire Was Not Extinguished Within 30 Minutes

Lastly, Phelps Dodge takes issue with the judge's conclusion that the fire lasted for more
than 30 minutes, reiterating the arguments it made below that what occurred was not a single fire,
but rather individual episodes of flames lasting no more than a few minutes each. PDR at 22.
The operator submits that the meaning of"extinguish" is plain in this instance, and relies upon
dictionary entries for the term which define it in connection with a "flame" as having "died" or
been "put out." Id. at 21 (quoting Oxford Am. Dictionary of Current English 274 (Oxford Univ.
Press 2002)); see also PD Reply Br. at 8-10. The Secretary urges that the judge's analysis
rejecting Phelps Dodge's interpretation of"extinguish" be upheld. S. Br. at 21-23.
In arguing that the meaning of "extinguish" is plain in this instance, Phelps Dodge is
urging the Commission to accept a definition of "extinguish" that does not apply to the term as it
is used in section 50.2(h)(6). Even if there must be evidence of flames for there to be a "fire,"
once such flames appear, there is no corollary notion that a fire is considered "extinguished" by
the mere lack of flames. We agree with the judge that the interpretation of "extinguish" by
Phelps Dodge is neither logical nor consistent with the language of the regulation or the purpose
of the Mine Act: "[u ]nder Phelps Dodge's interpretation, a fire could last for hours and not come
under the definition of an accident under section 50.2(h)(6) so long as flames are not present [for]
more tha[n] 30 minutes at a time." 29 FMSHRC at 676. It is not in the interest of mine safety to
suggest that if a fire flares up and flames last for 20 minutes followed by billowing smoke with
the potential to flare up again, the operator need not contact MSHA.

Accordingly, we believe that the judge properly applied the regulation when he concluded
from the evidence of burning and intermittent flare-up that there continued to be a "fire" until it
was "totally extinguished" or "fully extingtlished" at 9:50 a.m. Id. at 676. The judge found, and
Phelps Dodge does not dispute, that oil and grease were burning from 7:30 a.m. to 9:50 a.m, even
if flames were not ~ways present during that time. Id. at 675-76. 9
In addition to this evidence of at least the intermittent appearance of flames, the
description of the scene provided by McCauley and Bobo, the only two eyewitnesses to the
events who testified at trial regarding the 7:30 a.m. to 9:50 a.m. time period, is of''thick," "a lot
of," or "intense" smoke coming from the car body at all times. Tr. 19, 21, 25, 28, 33, 58, 66, 68,
69, 70, 77, 93. As Bobo explained, it.was the oil and grease that was burning, the oil "was
everywhere" inside the car body and the railroad ties upon which it sat, and there was too much
grease on the car body for the Metal Management employees to avoid igniting it. Tr. 71, 80-81.
This supports the judge's conclusion that the event should be considered as one fire, not separate
individual fires, as maintained by Phelps Dodge. Accordingly, we affirm the judge's finding that

9

Furthermore, counsel for Phelps Dodge stated at oral argument before the Commission
that from about 7:30 a.m. onwards, a period of over two hours, the Metal Management
employees were not applying the torch to the car body. Oral Arg. Tr. 32-33.
30 FMSHRC 655

the fire that occurred on June 17, 2006, was not extinguished within 30 minutes, and thus the
operator was obligated to report the fire within 15 minutes to MSHA.
Phelps Dodge also argues that it did not have adequate notice that MSHA would consider
what it claims were several discrete fires to be a single fire for reporting purposes. PDR at 2425; PD Reply Br. at 14-15. Where the imposition of a civil penalty is at issue, considerations of
due process prevent the adoption of an agency's interpretation "from validating the application of
a regulation that fails to give fair warning of the conduct it prohibits or requires." Gates & Fox
Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986) (citations omitted). An agency's
interpretation may be permissible but nevertheless may fail to provide the notice required to
support imposition of a civil penalty. See Gen. Elec., 53 F.3d at 1333-34; Phelps Dodge Corp. v.
FMSHRC, 681F.2d1189, 1193 (9th Cir. 1982).
In order to avoid due process problems stemming from an operator's asserted lack of
notice, the Commission has adopted an objective measure (the ''reasonably prudent person" test)
to determine if a condition is violative of a broadly worded standard. That test provides:

[T]he alleged violative condition is appropriately measured against
the standard of whether a reasonably prudent person familiar with
the factual.circumstances surrounding the allegedly hazardous
condition, including any facts peculiar to the mining industry,
would recognize a hazard warranting corrective action within the
purview of the applicable regulation.

Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982); see also Asarco, Inc., 14
FMSHRC 941, 948 (June 1992). As the Commission stated in/deal Cement Co., 12 FMSHRC
2409, 2416 (Nov. 1990), "in interpreting and applying broadly worded standards, the appropriate
test is not whether the operator had explicit prior notice of a specific prohibition or requirement,"
but whether a reasonably prudent person would have ascertained the specific prohibition of the
standard and concluded that a hazard existed. The reasonably prudent person is based on an
"objective standard." U.S. Steel Corp., 5 FMSHRC 3, 5 (Jan. 1983).
Given the continual thick smoke that was emanating from the car body for over two
hours, we cannot agree that a reasonably prudent person would conclude from the circumstances
here that there was not a single fire. Accordingly, we conclude that Phelps Dodge had adequate
notice as to what constituted "extinguished" under section 50.2(h)(6).
In summary, all Commissioners agree with the judge that a fire occurred, that it was
unplanned, and that it was not extinguished within 30 minutes. Consequently, for the reasons
stated herein, the Commission affirms the judge's determination that Phelps Dodge violated
section 50.10.

30 FMSHRC 656

III.

Separate Opinions of the Commissioners
Opinion of Commissioners Jordan and Cohen, in favor of addressing the Secretary's alternate
interpretation of the term "fire," and finding that the fire that occurred was unplanned:
A.

The Secretary's Alternative Interpretation of"Fire"

The Commission is affirming the judge's determination that Phelps Dodge violated 30
C.F.R. § 50.10 because the operator failed to contact MSHA within 15 minutes once it knew that
an accident (an unplanned fire not extinguished within 30 minutes) had occurred. Slip op. at 711. In so doing, the Commission has presumed, for purposes of this analysis, that a "fire"
requires the existence of flames, as the judge concluded. 29 FMSHRC at 674. Thus, the
Commission has determined that substantial evidence supports the judge's finding that flames
occurred as early as 7:30 a.m. and were not extinguished for approximately two and one-half
hours. Slip op. at 8-9, 10.
The Commission's opinion disposes of the issues in the case. Strictly speaking, it is not
necessary to reach the issue of whether the existence of flames is necessary to constitute a "fire"
within the meaning of 30 C.F.R. § 50.2(h)(6). Nevertheless, we are concerned about the possible
ramifications of the judge's finding that a "fire" requires the presence of flames. 1 Under the
judge's formulation, smoking grease alone would not be reportable under section 50. l 0. This
was the position that the operator argued vigorously in its post-trial brief (PD Post-Hearing Br. at
19-20), and Judge Manning accepted. His decision in this regard is not a precedent binding upon
the Commission. 29 C.F.R. § 2700.69(d). However, the judge's determination on this issue
conceivably could influence operators not to report incidents involving smoldering or smoke in
the absence of flame. Such an outcome, particularly in an underground mine, is detrimental to
the safety of miners and contrary to the purpose of the Mine Act. Hence, although we recognize
that it is dicta, we feel compelled to address this question.
Our colleagues are reluctant to reach this issue because they believe that notice and
comment rulemaking is a more appropriate forum in which to address this matter. Slip op. at 19.
Our colleagues make the good point that there are a myriad of situations where smoldering or
smoking could exist in which different reporting requirements would be appropriate.· Id. .The

1

Although the decisions of administrative law judges are not precedents binding upon
the Commission, we note that parties at times do base their arguments on the reasoning in these
decisions to support their positions before the Commission. This occurred in a case presently
pending before the Commission. Spartan Mining Co., Docket Nos. WEVA 2004-117-RM, et
seq., Sp. Br. at 14-15, Sp. Reply Br. at 8-10, Oral Arg. Tr. 23-25. Hence, parties do rely on
decisions of administrative law judges when the Commission itself has not resolved an issue.
30 FMSHRC 657

issue certainly is· appropriate for notice and comment rulemaking. 2 However, the Secretary has
requested the Commission's guidance on this issue in the context of this case. Oral Arg. Tr. 56.
Similarly, counsel for Phelps Dodge agreed that ''the regulated community needs to understand
and know what is intended by the definitions in this section [of the regulations] ... what is
unplanned, what is a fire, what is extinguished." Oral Arg. Tr. 8. In this separate opinion, we are
not purporting to define reporting requirements for all of the myriad of situations which could
occur. We are merely stating our view that the judge was incorrect when he found that a fire
requires flames to be reportable under 30 C.F.R. § 50.10.
Where the language of a regulatory provision is clear, the terms of that provision must be
enforced as they are written unless the regulator clearly intended the words to have a different
meaning or unless such a meaning would lead to absurd results. Dyer v. United States, 832 F.2d
1062, 1066 (9th Cir. 1987) (citations omitted); see also Utah Power & Light Co., 11 FMSHRC
1926, 1930 (Oct. 1989}(citations omitted); Consolidation Coal Co., 15 FMSHRC 1555, 1557
(Aug. 1993). If, however, a standard is ambiguous, courts have deferred to the Secretary's
reasonable interpretation of the regulation. See Energy West Mining Co. v. FMSHRC, 40 F.3d
457, 463 (D.C. Cir. 1994); accord Sec'y ofLabor v. Western Fuels-Utah, Inc., 900 F.2d 318, 321
(D.C. Cir. 1990) ("agency's interpretation ... is 'of controlling weight unless it is plainly
erroneous or inconsistent with the regulation"') (quoting Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410, 414 (1945) (other citations omitted)).
The Commission's review, like the courts', involves an examination of whether the
Secretary's interpretation is reasonable. Energy West, 40 F.3d at 463 (citing Sec'y ofLabor on
behalfof Bushnell v. Cannelton Indus., Inc., 867 F.2d 1432, 1439 (D.C. Cir. 1989)); see also
Consolidation Coal Co., 14 FMSHRC 956, 969 (June 1992) (examining whether Secretary's
interpretation was reasonable). The Secretary's interpretation of a regulation is reasonable where
it is "'logically consistent with the language of the regulation[s] and ... serves a permissible
regulatory function."' Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (citation
omitted).
Here, section 50.2(h)(6), which defines "[a]ccident" to include "an unplanned fire," is
silent as to whether flame must be present before a fire can be said to have occurred.
2

However, it is clearly established that an agency may choose to define law or policy
through adjudication even if it has rulemaking authority, and the Supreme Court has held that an
agency can expand on a rule through adjudication. 1 Charles H. Koch, Jr., Administrative Law
& Practice§ 2.12 (2d ed. 2007). In Shala/av. Guernsey Memorial Hospital, 514 U.S. 87, 96
(1995), the Court emphasized that "[t]he APA does not require that all the specific applications
of a rule evolve by further, more precise rules rather than by adjudication." The D.C. Circuit has
also noted that "[i]nherent in an agency's ability to choose adjudication rather than rulemaking,
see SEC v. Chenery Corp., 332 U.S. 194 (1947), ... is the option to make policy choices in small
steps, and only as a case obliges it to." SBC Commc 'ns Inc. v. FCC, 138 F.3d 410, 421 (D.C.
Cir. 1998).
30 FMSHRC 658

Accordingly, we must examine the Secretary's interpretation and decide whether it is reasonable
and entitled to deference.
The Secretary interprets the word "fire" in section 50.2(h)(6) to include both events
marked by flaming combustion and those marked by "smoldering combustion that reasonably has
the potential to burst into flames." S. Br. at 17. We believe that this interpretation is reasonable.
It is consistent with the preamble to the relevant Emergency Temporary Standard (ETS) in effect
when this incident occurred. In the preamble, the Secretary stated:
Existing paragraph (h)(6) of§ 50.2 defines "accident" to include
"an unplanned mine fire not extinguished within 30 minutes of
discovery." MSHA believes that there are situations in the mines
that involve more than one fire or a smoldering condition at a
particular place. Each episode of flame or smolder may have been
extinguished within 30 minutes.
The Agency is concerned that such events may represent a
serious or potentially serious hazard, and should be reported as an
"accident" and subject to the immediate notification requirement of
§ 50.10.
71 Fed. Reg. 12,252, 12,260 (Mar. 9, 2006) (emphases added).
The Secretary's regulation regarding the minimum requirements for "[a]utomatic fire
sensor and warning device systems" in underground mines3 is also consistent with a broad
reading of the term "fire" that is not confined to the presence of flame. That standard, 30 C.F,R.
§ 75.l 103-4(a)(2), refers to "sensors responding to radiation, smoke, gases, or other indications
offire" (emphasis added). Thus,.if a belt in an underground mine were smoking, detection
alanns would go off, it would be treated as a fire, and every effort would be made to extinguish
it. The absence of flame. would not reassure the miners and operator of an underground mine that
no danger was present.
The Secretary also relied on publications of the National Fire Protection Association
(''NFPA") indicating that fire may exist without flame. S. Br. at 14-16. One such publication
states that:
The combustion process occurs in two modes: (1) the
flaming mode, and (2) the flameless surface mode. The flaming
mode, which includes explosions, is characterized by relatively
high burning rates. This results in intense temperatures and high

3

The regulations at issue here, 30 C.F.R. § 50.10, and the definition in section
50.2(h)(6), also apply to underground mines.
30 FMSHRC 659

rates of heat release. On the other hand, an example of the
flameless surface mode is the presence of glowing embers.
Arthur Cote, P .E., and Percy Bugbee, National Fire Protection Association, Principles ofFire
Protection, 59-60 {1988).4
Finally, the meaning of the word "extinguish" adopted by the Secretary {S. Br. at 21-23),
the judge {29 FMSHRC at 676), and all Commissioners (slip op. at 10), is consistent with our
view that flames need not be present to constitute a fire. Phelps Dodge argues that the incident of
June 17, 2006, involved individual episodes of flames lasting only a few minutes each (and thus
not reportable) rather than a single fire. PDR at 21-22. However, both the judge and our
colleagues agree that once flames appear, a fire is not extinguished even if the flame disappears.
They thus acknowledge that, as long as there is the potential for the flame to reoccur, a fire exists
even when the flame goes out. In fact, despite the judge's holding that there is no fire without
flame, he states in the same breath that once a fire starts, it is still a fire even in the absence of
flame. 29 FMSHRC at 676 ("Although it does not appear that flames were present or at least
visible the entire time, I find that this event constituted one fire not multiple fires."). If a fire is
considered to endure, even in the absence of flame, because the possibility of flame continues to
exist, then it is reasonable to conclude that a fire is present initially, even if there are no flames
visible but the smoldering combustion has a reasonable potential to burst into flames.
For the reasons noted above, we fmd the Secretary's interpretation reasonable, as clearly
it is not "'plainly erroneous or inconsistent with the regulation.'" Western Fuels-Utah, 900 F.2d
at 321 {citations omitted). Accordingly, we would hold that to constitute a reportable accident
under 30 C.F.R. § 50.10, a fire, as defined in 30 C.F.R. § 50.2(h)(6), need not contain flames. 5

4

Our colleagues note that some of the NFPA materials cited by the Secretary indicate
that at times there can be fire without flame but at other times there must be flame to constitute a
fire. Slip op. at 19. This is one of the rationales they offer for refusing to squarely address the
definition of "fire" in their opinion. However, these NFPA references indicate that, at a
minimum, the interpretation adopted by the judge (that, for purposes of the accident-reporting
regulation, there is no fire without flame) is underinclusive. Thus, we are reluctant to allow his
determination to stand unaddressed.
5

Although Commissioner Cohen finds the Secretary's interpretation reasonable, he
believes that Phelps Dodge did not have the requisite notice of her interpretation required to
support the imposition of a civil penalty on this theory. See Gen. Elec., 53 F.3d at 1333-34. In
March 2006, approximately three months prior to the citation at issue here, MSHA issued an
order at the same mine, pursuant to section 103(k) of the Mine Act, 30 U.S.C. § 813(k). PD Ex.
2. The order, citing a "reportable fire," required the operator to obtain prior approval from
MSHA for all actions to recover or restore operations to the affected areas of the mine. Id. at 1.
However, the order was terminated several days later. In the termination order, the inspector
stated "[t]he conditions that contributed to the smoke were corrected and normal operations can
30 FMSHRC 660

B.

Whether the Fire was Unplanned

On the question of intent and what Phelps Dodge had in mind with respect to "fire," there
is no question that there was an intent that fire would be present. This fire would come from the
tip of the oxyacetylene torch, and the Metal Management crew filled out the "hot work" permit in
advance as a prerequisite to using the torch on the Phelps Dodge property.
The fire that Phelps Dodge was charged with failing to timely report to MSHA, however,
was not the fire coming from the torch, 6 but rather the fire that resulted from using the torch. 29
FMSHRC at 675; Gov't Ex. 1 at 4 ("A fire occurred at this operation on June 17, 2006 at 7:30
a.m. when a contractor, using an oxygen/acetylene torch to cut apart the car body of the #16
shovel, ignited oil and grease which had been allowed to accumulate."). As Bobo explained, it
was the oil and grease that was burning, as the oil ''was everywhere" on the car body and the
railroad ties upon which it sat. Tr. 71, 80-81.
At the hearing, Phelps Dodge's safety director Main conceded that the ignition of these
materials into flame was an "unplanned" part of work being performed by the Metal
Management crew. Tr. 120. Thus, Phelps Dodge cannot maintain that it intended that the oil
and grease be burned off as part of the operation. 7

resume[.] No fire existed." Id. at 4 (emphasis added). Commissioner Cohen concludes that a
reasonably prudent mine operator (the standard applied by the Commission in addressing notice
questions, Alabama By-Products Corp., 4 FMSHRC at 2129) who had received such an order
would not recognize that the June 17 incident was a reportable fire, as the March termination
order implied that smoke alone did not constitute such a fire. He recognizes, however, that
because the Com.rni;ssion is upholding the judge's finding that flames were observed as early as
7:30 a.m. and not extinguished until 9:50 a.m., there is an alternative theory ofliability serving as
the basis for the penalty. Consequently, the operator's lack of notice of the Secretary's
interpretation of"fire" would not affect the ultimate outcome of this case.
6

Phelps Dodge points to MSHA guidance indicating that "hot work" projects are
considered to be "planned." PD Reply Br. at 3-4, 12 (citing Emergency Mine Evacuation Final
Rule Questions & Answers on MSHA's web site). It is true that Metal Management had
permission from Phelps Dodge to conduct "hot work." However, we cannot agree that the
"planned" nature of the hot work here - use of the torch on the car body - can be reasonably
considered to extend to any fire that results from the hot work, regardless of how big the fire was,
the damage that it caused, and the lives that it put in danger. To interpret the MSHA guidance
regarding "hot work" in the way Phelps Dodge urges would eviscerate the meaning of "accident"
and lead to absurd results. See Central Sand & Gravel Co., 23 FMSHRC 250, 254 (Mar. 2001}.
7

In contrast, immediately adjacent to the mine's scrap yard, Phelps Dodge would bum
scrap wood, as part of its fire brigade training program. Tr. 90-91, 127-28.

30 FMSHRC 661

As for whether the actions that Phelps Dodge took in advance that indicate that it
anticipated a fire could result from use of the torch on the car body, those actions mean that
Phelps Dodge "planned for" a fire possibly occurring, not that the fire that occurred was a
"planned" fire.
Moreover, as our colleagues agree, slip op. at 20-21, the fire that took place exceeded
whatever expectations of fire there were prior to the start of the work that led to the fire. Despite
the precautions taken by the Metal Management employees, McCauley, upon observing the scene
and speaking with Metal Management supervisor Davila, had to call for the Phelps Dodge fire
brigade to come and stand watch on the site. 29 FMSHRC at 670; Tr. 28-29, 63. Consequently,
Phelps Dodge firefighter Bobo was dispatched in the mine's fire truck to the scene, whereupon
on his arrival he had to have the Metal Management employees instructed to move away from the
emanating smoke, because they did not have the equipment necessary to protect them from
smoke inhalation. 29 FMSHRC at 671; Tr. 62-63, 66-67; 81-82. Bobo also had McCauley take
action to get two additional firefighters and a water truck dispatched to the area. 29 FMSHRC at
671; Tr. 33-35. Because of the flames, Bobo found it necessary to put on his air pack and spray
the flames with approximately 300 gallons of water before the water truck could arrive. 29
FMSHRC at 671; Tr. 72, 75.
Thus, even accepting Phelps Dodge's argument that actions taken in anticipation of a fire
occurring are relevant to establishing that the fire was "planned," in this case it quickly became
apparent fo the Phelps Dodge personnel that, regardless of what fire the Metal Management
employees may have "had in mind" or ''projected" could occur when they started working, the
measures taken in advance were going to be insufficient. Consequently, we uphold the judge's
finding that the fire was "unplanned" under section 50.2(h)(6).

Robert F. Cohen, Jr. Commissioner.

30 FMSHRC 662

Opinion of Chairman Duffy and Commissioner Young, in favor of not reaching the Secretary's
alternate interpretation of the term "fire," and finding that the fire that occurred was unplanned:
A.

The Secretary's Alternative Intemretation of "Fire"

On review, the Secretary takes the position that the Commission need not even take into
account the evidence of flaming. According to the Secretary, the term "fire" is ambiguous, and
she interprets it to "include both events marked by flaming combustion and events marked by
smoldering combustion that reasonably has the potential to burst into flames." S. Br. at 13, 17
(emphasis in original). To demonstrate the reasonableness of this interpretation of"fire," the
Secretary points to a different dictionary definition of "fire" than the judge relied upon and fire
protection industry literature on the subject. Id. at 13-16.
The Secretary thus would have the Commission treat "fire" as a technical term, and have
us decide between competing technical definitions of the term, one which requires the presence
of flame, and one which does not. While it is apparent from the facts of this case and many
others that have come before the Commission that the hazard posed by a fire is not limited to
exposure to flame, we do not see the need in this case to choose between the parties' definitions
and establish the full parameters of what constitutes a "fire" as that term is used in the definition
of "accident." Rather, we believe the issue of whether there was a "fire" in this case can and
should be decided on the narrower grounds found by the judge in his decision below.
Thus, while it may be reasonable for the Secretary to construe the term "fire" more
broadly, encompassing combustion which produces no flame yet threatens the health or safety of
miners, we see no need to address in deciding this case whether the smoldering of the car body
and the smoke billowing from it was sufficient by itself to establish a "fire" under section
50.2(h)(6). The judge found that the observations of flames were roughly concurrent with the
other indications that there could be a fire occurring, so this case simply does not hinge upon
whether those other indications, by themselves, establish that a "fire" was in fact occurring.
Judicial principles of temperance and restraint dictate that cases not be over-decided;
rather, they should be resolved on the narrowest set of grounds supported by the facts. Farranging conclusions, not necessary to the disposition of issues presented to the reviewing court in
one case, may, ironically, end up constricting the court's discretion in subsequent cases where the
facts may be significantly different. This is particularly true in instances where the reviewing
court is presented with a broader rationale for deciding the case for the first time on appeal.
Such is definitely the case here, where all Commissioners unanimously agree that a "fire,"
even by the Judge's or Phelps Dodge's definition, occurred at 7:30 am on June 17, 2006, and
recurred, intermittently, until it was successfully extinguished more than two hours later. As
such, we further agree that the "fire" needed to be reported once it had not been extinguished
within 30 minutes. We need not, and should not, decide more.

30 FMSHRC 663

Moreover, we do not view this appeal as the proper vehicle to engraft upon the Mine Act
and its regulations the broader interpretation of "fire" the Secretary has urged upon the
Commission as an alternative to relying upon the definition of the term the judge utilized in
upholding the citation. While we are not unsympathetic to the notion that there need not be
evidence of flame to establish a "fire" under section 50.2(h)(6), we do not agree with the
Secretary that it is necessarily the Commission's role to use this case to establish a broader
definition of"fire," particularly where, as here, the Secretary did not even attempt to argue for
the broader definition below.
Furthermore, section 50.2(h)(6)'s employment of the term "fire" is hardly unique in the
Mine Act and its regulations. "Fire" is found in numerous sections of the amended Mine Act and
in more than 100 ofMSHA's Mine Act regulations. We are reluctant to accept the Secretary's
suggestion to use this case, involving a relatively minor incident in a remote area of a surface
mine, to establish the meaning of a term so prevalent in MSHA's regulatory regime.
Rather, we believe notice and comment rulemaking is a much more appropriate forum in
which to establish a definition of a term that is so prevalent in, and important to, the amended
Mine Act. 1 See generally I Richard J. Pierce, Jr., Administrative Law Treatise§ 3.68, at 368-74
(4th ed. 2002) (discussing nine different advantages of rulemaking over adjudication as a source
of generally applicable rules).
This conclusion is confirmed by the substance of the authority the Secretary cites for
broadening the definition of"fire," the National Fire Protection Association (''NFPA"). S Br. at
13-16. The NFPA literature cited by the Secretary indicates that not all solids can be considered
to be on fire without the presence of flame. See I Arthur E. Cote, P .E., NFPA, Fire Protection
Handbook, 2-55 (19th ed. 2003) ("Some solids can burn directly by glowing combustion or
smoldering.") (emphasis added) (quoted in S. Br. at 15); Raymond Friedman, NFPA, Principles
ofFire Protection Chemistry 56 (2d ed. 1989) ("Smoldering generally is limited to porous
materials that can form a carbonaceous char when heated") (cited in S. Br. at 15-16 ).
Developing a definition of fire that reflects that some of the time there can be fire without flame,
but at other times there must be flame, is clearly a task much better accomplished through
rulemaking than in a case such as this.
Lastly, adoption of the Secretary's alternative interpretation of":fire" would raise notice
issues. We see no need to complicate the resolution of this case by substituting as the basis for
upholding the citation an interpretation of "fire" that the operator offered below that the Secretary
did not oppose, for one that was not suggested by the Secretary until the appellate stage of this
case.

1

"[A] brief review of the legislative history of the [Mine] Act makes clear that fire is one
of the primary safety concerns that has motivated federal regulation of the coal mining industry."
Buck Creek Coal Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995) (citing H.R. Rep. No. 312,
95th Cong., 1st Sess. (1977); S. Rep. No. 181, 95th Cong., 1st Sess. (1977)).

30 FMSHRC 664

B.

Whether the Fire was Unplanned

While we agree with our colleagues that the fire at issue was not a planned fire exempt
from the reporting requirements of30 C.F.R. § 50.10, we write separately because we disagree
with the analysis supporting the conclusion. We do not agree that only a fire planned and
executed with the intent of generating combustion may be exempt from the reporting
requirement. The cramped focus on the objective is not the most protective approach, and we
believe miner safety and health would be enhanced by directing our attention instead to the
preparations made in advance of any incident where combustion is a foreseeable result. In that
case, the operator's planning for the consequences of the use of torches or other heat sources in
proximity to or contact with combustible materials must be evaluated in terms of whether the
consequences were fully anticipated by thorough planning before and proper action during the
event in question.
The Secretary's assertion, accepted by our colleagues, that only a deliberately set fire may
be exempt from the reporting requirement is unnecessarily narrow. While it is true that in this
case, Phelps Dodge Health and Safety Manager Main conceded that the ignition of materials was
an "unplanned" result of the work being performed by the Metal Management crew (Tr. 120),
mine hazards are often a foreseeable consequence of ordinary operations. If they are foreseen,
planned for, and anticipated with proper precautionary measures to ensure miners are not
exposed to danger, the circumstances do not ordinarily cause a hazard. For instance, the planned
subsidence incident to longwall mining is not a reportable "accident." The collapse of the gob is
simply a foreseeable event proximately caused by the operator's ordinary operations. The
operator proceeds with a plan to mine in a way that prevents miners from being exposed to the
hazards of the collapsing gob, and no "accident" occurs when the gob caves in as foreseen.
In much the same way, an operator may not intend that a fire consume the grease and
other combustible material in a piece of equipment that is being cut with a torch for salvage.
However, ifthe operator proceeds with a plan that fully anticipates that possibility, prepares for
its occurrence in advance, and fully manages the event by extinguishing the fire, the event should
not be a reportable accident under section 50.2(h)(6). We would therefore allow the exception to
include activities from which an operator reasonably expects a fire to result, prepares for that
event as though the fire will in effect happen, and maintains control over the progress of the fire
from ignition through extinction.

Applying this analysis, we would nonetheless affirm the violation because the foresight
and preparation in this case were inadequate. Phelps Dodge took a number of steps, as detailed
supra, slip op. at 9 n.8, in preparation for the hot work involved in cutting up the car body, but
the activity did not proceed as foreseen by those charged with carrying it out. As a result, Phelps
Dodge management, employees, and equipment necessary for controlling any anticipated
problems arising from the salvage work had to be assigned after the fact to help control and
extinguish the fire. See 29 FMSHRC at 670-71; Tr. 28-29, 33-36, 72-75 (McCauley, fire marshal
Bobo and two additional firefighters responded to the scene; water truck summoned and Bobo

30 FMSHRC 665

required to spray car body with approximately 300 gallons of water to control fire until water
truck arrived).
By affirming the violation on this basis, we would encourage operators to engage in
thoughtful preparation before undertaking activities that pose danger and risk exceeding the
operator's efforts to contain them without such preparation. It is also entirely consistent with the
organic source term used in 30 C.F.R. §. 50.10, which is not ''fire" but "accident." Finally. it is
consistent with logic and sound public policy. Had the operator prepared in advance for a
significant and prolonged fire, the likelihood of the fire getting out of control would have been
greatly reduced. Applying the regulatory language in this way would thus be preventive,
hortatory, within the language of the standard, and, therefore, more likely to protect miners from
serious hazards. 2
We would also strongly urge the Secretary, preferably through regulation. or, at least
through clear guidelines, to distinguish between confined areas containing combustible materials
where propagation could be expected, and remote, open, areas where the possibility of
propagation is limited and threats to miners can be more easily controlled.

2

Phelps Dodge argues that it lacked notice of the ALJ's interpretation that the term
"planned" was not satisfied by the precautions taken by Phelps Dodge. PD Reply Br. at 12-13.
Application of the reasonably prudent person test demonstrates that the operator had adequate
notice in this instance. There is no better evidence of what a reasonably prudent person would
think in this case than the immediate reaction of the miners when faced with a situation_ Here, it
is plain from the actions of both McCauley and Bobo when they came upon the scene that neither
believed that the Metal Management employees had adequately planned for the fire that resulted
from their work on the car body. Consequently, we reject the notion that Phelps Dodge lacked
adequate notice of how the term "unplanned" could be applied in this case.

30 FMSHRC 666

Distribution:
Timothy R. Olson, Esq.
Jackson Kelly PLLC
1099 18th Street
Suite 2150
Denver, CO 80202
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Dept. Of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

30 FMSHRC 667

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

August 26, 2008

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

v.
Docket No. WEST 2004-182-RM

NATIONAL CEMENT COMPANY
OF CALIFORNIA, INC.
and
TEJON RANCHCORP

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

DECISION
BY: Duffy, Chairman, and Young, Commissioner
This contest proceeding, arising under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (2000) ("Mine Act" or "Act"), and involving a citation for an alleged
violation of 30 C.F.R. § 56.9300(a), 1 is on remand from the United States Court of Appeals for
the District of Columbia Circuit. In Secretary ofLabor (MSHA) v. National Cement Co. of
California, 494 F.3d 1066 (D.C. Cir. 2007), the court held that terms used in section 3(h){l)(B)
of the Mine Act, 30 U.S.C. § 802(h)(l)(B), to define "coal or other mine" are ambiguous, and
that in order for the Secretary of Labor's interpretation of those terms to be upheld, she must
address concerns regarding that interpretation raised by the other parties to this case and
harmonize her interpretation with the Mine Act's overall enforcement of mine safety standards.

1

Section 56.9300(a) requires that "[b]erms or guardrails shall be provided and
maintained on the banks of roadways where a drop-off exists of sufficient grade or depth to cause
a vehicle to overturn or endanger persons in equipment."
30 FMSHRC 668

Id. at 1074-77. Consequently, the court vacated and remanded to the Commission its decision in
National Cement Co. of California, 27 FMSHRC 721(Nov.2005), forthe Secretary to submit
such an interpretation. 494 F.3d at 1077. For the reasons that follow, we conclude that the
Secretary's interpretation submitted on remand is not a permissible interpretation of section
3(h)(l).
I.
· Factual and Procedural Background
As is more fully discussed in the Commission's original decision and the court's opinion,
the issue in this case is whether the Department of Labor's Mine Safety and Health
Administration ("MSHA") has jurisdiction to enforce the Mine Act with regard to the 4.3-nrile
two-lane access road running north from State Route 138 in northern Los Angeles County,
California, to the Lebec cement plant and quarries operated by National Cement Company of
California, fuc. ("National Cement") in southern Kem County, California ("Access Road"). See
494 F.3d at 1069-72; 27 FMSHRC at 722-25. 2 Both the National Cement facilities and the
Access Road are on Tejon Ranch property ("Ranch"), which is owned by Tejon Ranchcorp
("Tejon"). 494 F.3d at 1069. National Cement leases the property from Tejon, and its use of the
Access Road, which provides the sole vehicular access to the leasehold, is pursuant to easement
deeds granted by Tejon. 27 FMSHRC at 722, 723.
Use of the Access Road is restricted to: (1) Tejon's employees, vendors, contractors,
lessees, licensees, and visitors; (2) National Cement's employees, vendors, contractors, and
visitors; and (3) those persons authorized to use the road by the State of California. Id. at 722.
While the record reflects that the great majority of traffic on the road is due to the cement plant,
the road is used by Tejon and its other lessees, licensees, and authorized visitors in the course of
various other activities at the Ranch. Id. at 723. Some of the other activities are commercial,
such as: management of ranching operations by Tejon and its lessees (27 FMSHRC at 92);
entertainment production companies, commercial photographers, and others filming motion
picture scenes, commercials, music videos, and taking commercial still photographs (id. at 9293); and hunting and camping programs administered by Tejon management (id. at 93-94). The
road is also used by representatives of utility companies to access portions of the Ranch subject
to easements those utilities have entered into with Tejon, the Federal Aviation Administration to
access a communications tower located on Tejon land, and the California Department of Water
Resources ("DWR"), which owns the Access Road bridge over a DWR aqueduct. 27 FMSHRC
at 723-24. Finally, as the Commission noted in its original decision, the subject road may also ·
become a main traffic artery for an area of the Ranch for which there are extensive mixed-use
development plans. Id. at 723 n.4.

2

The factual record in this case consists of the 77 joint stipulations that the parties
submitted to the administrative law judge, all of which he set forth in his original decision, and a
book of Joint Exhibits filed by the parties. See 27 FMSHRC 84, 85-98 (Jan. 2005) (ALJ).
30 FMSHRC 669

As far back as 1992, MSHA began citing National Cement for the lack of berms or
guardrails along the Access Road, but MSHA subsequently vacated each of those citations on
jurisdictional grounds. Id. at 724. In December 2003, however, MSHA definitively took the
position that the Access Road was subject to the Mine Act, and shortly thereafter issued the
citation that is at issue in this case, No. 6361036. Id. at 724-25. National Cement contested the
citation, and Tejon intervened. Id. at 725. After filing their joint stipulations and exhibits, the
parties subsequently filed cross-motions for summary decision on the issue of whether the road is
subject to Mine Act jurisdiction. 27 FMSHRC at 84.
Administrative Law Judge Jerold Feldman granted the Secretary of Labor's motion for
summary decision and held that the Access Road is a "coal or other mine" and is thus subject to
the jurisdiction of the Mine Act and MSHA. Id. at 103. In determining that the road at issue was
a "coal or other mine" under section 3(h)(l) of the Mine Act, 30 U.S.C.§ 802(h)(l), the judge
read subsection (B) according to what he considered to be its plain meaning. 27 FMSHRC at 9899. He concluded that the parties' stipulations established that the road was "private," and that
under the commonly understood meaning of the term, the road was "appurtenant" to the cement
plant. Id. at 99. Upon the subsequent motion of National Cement, the judge certified his
interlocutory ruling (27 FMSHRC 157 (Feb. 2005) (ALJ)), and we ordered review of the judge's
decision.
On the interlocutory appeal, a majority of the Commission held that applying "private"
and "appurtenant to" according to the interpretation of those tenns advanced by the Secretary
would in this instance, under the strict liability scheme of the Mine Act, lead to the absurd result
of National Cement being responsible for use of the road by parties over whom it had no control.
27 FMSHRC at 728-35. 3 Consequently, we vacated the judge's order granting the Secretary's
motion for summary decision. Id. at 735. We also remanded the case to the judge for a
determination whether any part of the Access Road was used exclusively by cement plant traffic,
and thus was properly subject to Mine Act jurisdiction as a "coal or other mine" under section
3(h)(l )(B). Id. The judge subsequently found that the entire road was subject to use by other
users authorized by Tejon and vacated the citation that had been issued to National Cement. 28
FMSHRC 21, 22 (Jan. 2006) (AU).
The Secretary appealed our decision, and a majority of the D.C. Circuit panel considering
the case held that both "private" and "appurtenant" as they are used in section 3(h)(l )(B) each
have more than one meaning, arid thus are ambiguous. 494 F.3d at 1073-75. Because the
Secretary had erroneously interpreted the terms as having plain, unambiguous meanings, the
court vacated our decision and remanded it to us to obtain from the Secretary a "Chevron step 2"
interpretation of subsection (B). Id. at 1077; see Chevron, U.S.A., Inc. v. Natural Res. Def
Council, Inc., 467 U.S. 837, 842-44 (1984).

3

Commissioner Jordan dissented on the ground that application of the plain meaning of
section 3(h){l )(B) indicated that MSHA had jurisdiction over the Access Road and that such an
interpretation would not lead to absurd results. Id. at 737-43 (Comm. Jordan, dissenting).
30 FMSHRC 670

Specifically, the Secretary's position had been that because the tenn "private" meant
"intended for or restricted to the use of a particular person or group or class of persons: not freely
available to the public," the Access Road could be considered to be "private" due to the fact that
it could only be used by a particular group or class- those authorized to use it by Tejon. See 27
FMSHRC at 727-28 (citations omitted). The court held, however, that the term "private" is
actually ambiguous, because it "may be construed more narrowly to mean restricted to the use of
'a particular person' such as National Cement," which it is not in this case. 494 F.3d at 1074.
Similarly, the Secretary believed that the Access Road could be considered "appurtenant
to" the cement plant because National Cement had the right to use the Access Road as a result of
a transferable right-of-way easement. See 27 FMSHRC at 728. The court concluded, however,
that the term "appurtenant" was also ambiguous, as it too was subject to a narrower construction,
"as suggested by the definitional language 'annexed or belonging legally to,' to mean dedicated
exclusively to the use of the mine." 494 F.3d at 1074. Again, the Access Road is not dedicated
exclusively to the use of National Cement.
The court further instructed that the Secretary's interpretation on remand would have to
address the problematic issues raised by National Cement and Tejon before the court, which the
court characterized as "not frivolous concerns." Id. at 1075-77. The court questioned whether
National Cement, as a non-exclusive right-of-way grantee, had the right to install the guardrails
or berms MSHA was seeking along the Access Road. Id. at 1075. The court also questioned
how National Cement could carry out various obligations the Mine Act imposes on it as a mine
"operator" with respect to road users "over whom it has no authority and with whom it has no
business connection whatsoever." Id. Finally, the court suggested that the Secretary's
interpretation would extend Mine Act jurisdiction to Tejon and others ''with right-of-way control
over the Access Road notwithstanding the party lacks any relation whatsoever to the mine's.
operation." Id. at 1076.
Subsequently, the Commission issued a briefing order requesting that the Secretary file a
brief upon remand that includes the interpretation required by the Court, supported by argument
and authority. Unpublished Order at 3 (Oct. 11, 2007). That order also provided for the filing of
briefs by National Cement and Intervenor Tejon. Jd. 4

4

On January l 0, 2008, the parties jointly moved for permission for the Secretary to file a
reply brief and National Cement and Tejon to file surreply briefs, and later filed such briefs. The
Commission lacked a quorum at that time to act upon the joint motion. All four Commissioners
subsequently voted and hereby grant the joint motion. Similarly, all four Commissioners voted
and hereby grant the Secretary's unopposed January 29, 2008, motion to file a reply brief slightly
in excess of the Commission's 15-page limit on reply briefs.
30 FMSHRC 671

In her brief on remand, the Secretary stated the following as the interpretation she was
offering in response to the court's opinion:
In view of the Court's holdings that the language of Section
3(h)(l)(B) is ambiguous and that the Secretary is required to issue
citations for all violations over which she has jurisdiction, even if
the violative conditions have no effect on miner safety, the
Secretary interprets the definition of"mine" in Section 3(h)(l)(B)
of the Mine Act to encompass the [A]ccess [R]oad in this case.
The Secretary, however, interprets Section 3(h)(l)(C) of the Act to
exclude from the definition of "mine" vehicles on the road that are
not related to National Cement's mining operations.
S. Remand Br. at 13.

II.
Disposition
The Secretary submits that using the terms of section 3(h)(l )(C) to limit the scope of her
jurisdiction under section 3(h}(l)(B) is consistent with the language of section 3(h)(l)'s
definition of"coal or other mine." S. Remand Br. at 13-17; S. Remand Reply Br. at 1-5. As she
did the first time this case was before the Commission, the Secretary also maintains that her
interpretation of section 3(h)(l)(B) is consistent with the legislative history of the Mine Act and a
predecessor statute. S. Remand Br. at 17-22; S. Remand Reply Br. at 5-8. In arguing that her
interpretation on remand is consistent with the overall structure of the Mine Act, the Secretary
addresses the specific concerns raised in the court's opinion regarding the reasonableness of such
an interpretation in light of the enforcement provisions of the Mine Act. S. Remand Br. at 23-34;
S. Remand Reply Br. at 8-14. The Secretary takes the position th.at even though her
interpretation upon remand is different than previous interpretations of section 3(h)(l) that she
has advanced duri.Ilg and prior to this litigation, it is nevertheless entitled to deference. S.
Remand Reply Br. at 14-16.
National Cement describes the Secretary's interpretation upon remand as unprecedented
and illogical, arguing th.at it is inlpermissible for her to read section 3(h)(l )(C) to modify the
scope of section 3(h)(l)(B). NC Remand Br. at 15, 20-23; NC Remand Surreply Br. at. 8-12.
National Cement also believes that the legislative history supports its position th.at the Access
Road is neither "private" nor "appurtenant to" the cement plant. NC Remand Br. at 16-20, 3134. According to National Cement, the Secretary's interpretation upon remand clashes with the
text and structure of the Mine Act as a whole, and thus does not satisfy the Court's instruction in
remanding the case. NC Remand Br. at 23-31, 36-39; NC Remand Surreply Br. at 5-8, 13-15.
National Cement suggests that because the Secretary's interpretation on remand is the latest in a
series of policy shifts on her part regarding the status of the Access Road, the Commission

30 FMSHRC 672

should refuse to accord that interpretation the deference it otherwise would be owed. NC
Remand Br. at 34-36.
Intervenor Tejon objects that the Secretary's interpretation on remand would have her
treating the Access Road as a mine only some of the time, depending on who was using it, which
Tejon argues the Secretary cannot do under the Mine Act. T. Remand Br. at 7-14; T. Remand
Surreply Br. at 6-10. Tejon is also concerned that it and other non-mine users of the Access
Road will be considered as "operators" to the extent that National Cement does not control nonmine traffic on the Road. T. Remand Br. at 14-18; T. Remand SurreplyBr. at 10-13. Like
National Cement, Tejon believes that the Commission should reject the Secretary's interpretation
upon remand because of her history of constantly changing her position on whether the Access
Road is a "coal or other mine" under section 3(h)(l ). T. Remand Surreply Br. at 2-6.
Section 3(h)(l) of the Mine Act reads in pertinent part:
"coal or other mine" means (A) an area of land from which minerals are
extracted in nonliquidform or, if in liquid form, are extracted with workers
underground, (B) private ways and roads appurtenant to such area, and (C)
lands, excavations, underground passageways, shafts, slopes, tunnels and
workings, structures, facilities, equipment, machines, tools, or other property
including impoundments, retention dams, and tailings ponds, on the surface or
underground, used in, or to be used in, or resulting from, the work ofextracting
such minerals from their natural deposits in nonliquid form, or if in liquid form,
with workers underground, or used in, or to be used in, the milling ofsuch
minerals, or the work ofpreparing coal or other minerals, and includes custom
coal preparation facilities.
30 U.S.C. § 802(h){l) (emphases added).
Until now, the Secretary has relied solely oii subsections (A) and (B) of section 3(h)(l) of
the Mine Act to argue that MSHA's jU.risdiction over the cement plant extends to the Access
Road. 5 She now advances an interpretation that also relies upon the final subsection of section
5

It is undisputed that the cement plant is a "mine" and thus subject to the jU.risdiction of
MSHA under the Mine Act. 27 FMSHRC at 85, 98; see also 27 FMSHRC at 726 n.5 ·(discussing
interagency agreement between MSHA and the Occupational Safety and Health Administration ·
which allocates to MSHAjU.risdiction over cement plants). As we noted in our earlier decision,
all parties to the case "also are apparently assuming that the entire National Cement facility
qualifies as an 'area ofland from which minerals are extracted' under subsection (A)" of section
3(h)(l). 27FMSHRC at 727 n.6. Thus, the case has always focused on whether the Access
Road can be considered "appurtenantto" to the cement plant, and not specifically to just that part
of the plant that falls within the subsection (A) language, which possibly could be read to
describe less than the entire plant, such as the quarry areas only.

30 FMSHRC 673

3(h)(l), subsection (C), to support her position that it is reasonable for her to consider the Access
Road as "private" and "appurtenant to" the cement plant property. According to the Secretary's
interpretation on remand, jurisdiction under the Mine Act over "equipment, machines, tools, or
other property'' pursuant to subsection (C) attaches only to such items that are used or to be used
in a mining, milling, or coal preparation process. Therefore, under this interpretation,· vehicles
not used in any of those processes that are on a road described in subsection (B) fall outside Mine
Act jurisdiction. S. Remand Br. at 16-17; S. Remand Reply Br. at 1-5. The Secretary further
takes the position that she can look to subsection (C) to establish the scope of subsection (B), but
need not likewise do so to establish the scope of subsection (A). S. Remand Reply Br. at 3-5.
The Secretary's interpretation on remand thus raises two related questions: (1) whether
her new interpretation of section 3(h)(l) is a permissible reading of that provision as a
preliminary matter; and (2) if so, does her interpretation adequately address the concerns the
court enumerated in questioning whether, given the enforcement provisions of the Mine Act, it is
reasonable to consider the Access Road to be "private" and "appurtenant to" the cement plant
and thus within the jurisdiction of the Mine Act. See 494 F.3d at 1075-76.
A.

The Standard of Review

The first inquiry in statutory construction is ''whether Congress has directly spoken to the
precise question at issue." Chevron, 467 U.S. at 842; Thunder Basin Coal Co., 18 FMSHRC
582, 584 (Apr. 1996). If a statute is clear and unambiguous, effect must be given to its language.
See Chevron, 467 U.S. at 842-43; accord Local Union 1261, UMWA v. FMSHRC, 917 F.2d42,
44 (D. C. Cir. 1990). Deference to an agency's interpretation of the statute may not be applied
"'to alter the clearly expressed intent of Congress.'" K Mart Colp. v. Cartier, Inc., 486 U.S. 281,
291 (1988) (citations omitted). The Commission has held that "[i]n determining [the] coverage
[of section 3(h)(l)], we must give effect to Congress' clear intention in the Mine Act, discerned
from the 'text, structure, and legislative history."' Harless Towing, Inc., 16 FMSHRC 683, 687
(Apr. 1994) (quoting Coal Employment Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989)).
In ascertaining the plain meaning of a statute, courts utilize traditional tools of construction,
including an examination of the "particular statutory language at issue, as well as the language
and design of the statute as a whole," to determine whether Congress had an intention on the
specific question at issue. K Mart Colp., 486 U.S. at 291; Local Union 1261, UMWA v.
FMSHRC, 917 F.2d at 44; Coal Employment Project, 889 F.2d at 1131.
It is only after a statute has been found to be ambiguous or silent on a point in question
that the second inquiry- a "Chevron step 2" inquiry- is made as to whether an agency's
interpretation of a statute is a reasonable one. See Chevron, 467 U.S. at 843-44; Thunder Basin,
18 FMSHRC at 584 n.2; Keystone Coal Mining Corp., 16 FMSHRC 6, 13 (Jan. 1994).
Deference is accorded to "an agency's interpretation of the statute it is charged with
administering when that interpretation is reasonable." Energy West Mining Co. v. FMSHRC, 40
F.3d 457, 460 (D.C. Cir. 1994) (citing Chevron, 467 U.S. at 844). The agency's interpretation of
the statute is entitled to affinnance as long as that interpretation is one of the permissible

30 FMSHRC 674

interpretations the agency could have selected. See Joy Techs., Inc. v. Sec '.Y ofLabor, 99 F.3d
991, 995 (10th Cir. 1996), cert. denied, 520 U.S. 1209 (1997) (citing Chevron, 467 U.S. at 843);
Thunder Basin Coal Co. v. FMSHRC, 56 F.3d 1275, 1277 (10th Cir. 1995).

fu her initial remand brief, the Secretary was silent on whether she is relying on the plain
meaning of section 3(h)(l )(C), or whether its terms are, like the ones at issue in section
3(h)(l)(B), also ambiguous (and the Commission must also defer to a reasonable interpretation of
that subsection by her). fu her reply remand brief, however, she states that, with respect to the
interaction of subsections (B) and (C) of section 3(h)( 1), "[b]ecause the Secretary's interpretation
is reasonable, it should be affirmed." S. Remand Reply Br. at 3. Consequently, we do not
consider the Secretary to be relying upon the plain meaning of the statute.
Unlike with subsection (B) of section 3(h)(l) (see 27 FMSHRC at 727 & n.7), there have
been numerous court and Commission cases involving the interpretation and application of the
terms of subsection (C) in determining whether the definition of "coal or other mine" has been
met in a particular instance. Moreover, almost from the onset of passage of the Mine Act, the
meaning of subsection (C) within that definition has been described as "clear" as it relates to
Mine Act jurisdiction. See, e.g., Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 589, 592
(3rd Cir. 1979) (finding a subsection (C) structure and facility to be a "mine" because "the word
means what the statute says it means"), cert. denied, 444 U.S. 1015 (1980); Harman Mining
Corp. v. FMSHRC, 671 F.2d 794, 796 (4th Cir. 1981) (under terms of section 3(h)(l)(C), it is
clear that facilities and equipment used in preparing coal are included in the definition of
"mine"). 6
Until now, there has been no controversy regarding the plain meaning of section
3(h)(l )(C). It means that "[t]he definition [of 'coal or other mine'] is not limited to an area of
land from which minerals are extracted, but also includes facilities, equipment, machines, tools
and other property ~sed in the extraction of minerals from their natural deposits and in the
milling or preparation of the minerals." Harless, 16 FMSHRC at 687. fu other words, and as
indicated in the cited cases, subsection (C) has been interpreted to plainly mean that Mine Act
jurisdiction extends beyond subsections (A) and (B), to reach subjects that may not be
encompassed by the terms of those subsections. Now, the Secretary interprets subsection (C) to
serve an additional purpose: to limit the scope of subsection (B).

6

See also U.S. Steel Mining Co., 10 FMSHRC 146, 148-49 (Feb. 1988) (stating that
"applicable legal framework is clear" in finding that separate repair shop for three of operator's
mines is also a mine under section 3(h)(l)(C)); Jim Walter Res., Inc., 22 FMSHRC 21, 25 (Jan.
2000) ("conclud[ing] that the language of [section 3(h)(l)(C)] is clear" in finding that a supply
shop separate from the operator's four mines was also a mine); Justis Supply & Machine Shop,
22 FMSHRC 1292, 1296 (Nov. 2000) (language of section 3(h)(l)(C) is clear).
30 FMSHRC 675

B.

The Language of Section 3(h)(l)

The starting point for interpreting the statutory definition of "coal or other mine" is the
language of the definition. See, e.g., Harman, 671 F.2d at 796; Justis, 22 FMSHRC at 1296. In
support of the interpretation of section 3(h)(l) she has offered on remand, the Secretary argues
that ''the definition of 'mine' in [s]ection 3(h)(l)(B) refers only to 'private' roads 'appurtenant to'
extraction areas, and is silent as to whether vehicles using such roads are also included within the
definition of 'mine."' S. Remand Reply Br. at 2.
While the Secretary's assertion is true, it is far from persuasive. In our prior decision in·
this case, we interpreted section 3(h)(I), including the reference in subsection (B) to "ways and
roads," as follows:
[S]ection 3(h)(l) defines "coal or other mine" in geographic terms.
Energy West Mining Co., 15 FMSHRC 587, 592 & n.9 (Apr.
1993). All activities that occur within a mine's consequential
boundaries are covered by the Mine Act. There is nothing in the
Mine Act which would limit jurisdiction over the [A]ccess [R]oad
temporally or functionally, such as only when the road is being
used in furtherance of National Cement's operations.
27 FMSHRC at 732 n.12. This construction of section 3(h)(l) by the Commission was not
rejected by the court. The Secretary's position that the silence in subsection (B) regarding
vehicles (or any other potential subject of Mine Act jurisdiction, for that matter) permits her to
look to subsection (C) to temporally or functionally limit her jurisdiction under subsection (B)
flatly contradicts the statute.
We instead agree with National Cement (NC Remand Br. at 21-23) that section 3(h)(l),
by including subsection (C) within the definition of "coal or other mine," provides an
independent basis for jurisdiction over the enumerated subjects of the mining, milling, or coal
preparation process that may not otherwise be encompassed within the geographic areas
established by subsections (A) and (B). Congress recognized the potential for certain aspects of
those processes to be performed beyond the extraction lands and the private roads appurtenant to
those lands. 7 The three subsections of section 3(h)(l) were plainly drafted and placed
7

Indeed, the Secretary, using the language of subsection (C), stated to the D.C. Circuit
that there is "longstanding case law holding that [s]ection 3(h)(l) encompasses structures,
facilities, and other areas and equipment that are not on the site of the extraction area." S. Court
Reply Br. at 10-11 (emphasis in original) (citations omitted). See, e.g., U.S. Steel, 10 FMSHRC
at 147-48 (central repair shop for three of operator's mines, that were as far as eight and one-half
miles away, is a mine under section 3(h)(l)(C)); Jim Walter, 22 FMSHRC at 22, 25 (finding that
a central supply shop as far as 25 miles away from the operator's four mines was also a mine);
Justis, 22 FMSHRC at 1293, 1296 (equipment being assembled one mile away from where it was
30 FMSHRC 676

sequentially in order to collectively cast a jurisdictional net over all those subjects that can
possibly be considered to be part of the mining process, in order to reach as many of the potential
dangers that are specific to mining that can possibly be reached.
fu short, there simply is no precedent or support for the Secretary's argument that one of
the subsections of section 3(h)(l) can be used to limit the reach of one of the other subsections
and effectively modify thewording of that subsection. Nothing in section 3(h)(l) indicates that
the limiting language appearing in subsection (C) - used or to be used in mining, milling, or coal
preparation - was also intended to limit the subject of subsection (B). 8 Given the wellestablished plain meaning of subsection (C), such an interpretation is not permissible.
Subsection (C) was drafted to further extend the overall definition of "coal or other mine," not
for the contrary purpose of limiting the scope of subsection (B).

Moreover, the Secretary's interpretation upon remand excludes from subsection (B)
jurisdiction only vehicles unrelated to National Cement, but many other potential subjects of
MSHA regulation could conceivably arise upon the Access Road. As the Commission stated in
its original decision in this case:
Considering 30 C.F.R. Part 56 alone, National Cement
would be potentially liable for violations of a myriad of Mine Act
standards that would apply to parties using the [A]ccess [R]oad for
any number of non-cement plant purposes if we were to uphold
MSHA's jurisdiction over the [A]ccess [R]oad. While many Part
56 standards are by their nature limited in their application to
mining operations, a significant number are not and are relevant to
the various non-cement plant uses of the access road. See, e.g., 30
C.F.R. Part 56, Subpart C (Fire Prevention and Control), Subpart D
(Air. Quality and Physical Agents), Subpart E (Explosives), Subpart
H (includes traffic safety provisions), Subpart Q (Safety Programs),
and Subpart S (Miscellaneous).
27 FMSHRC at 733. As can be seen from this partial summary of Part 56, it is not just vehicular
use of the Access Road unrelated to National Cement that implicates MSHA standards; rather

to be used in mining fell within the definition in section 3(h)(l)(C)).
8

In our opinion, the Secretary further weakens her argument by taking the position that
the terms of subsection (C) limit the scope of subsection (B), but not of subsection (A). She
argues that this is a reasonable position because Congress used the "geographically
encompassing term 'area"' in subsection (A) but not in subsection (B)~ S. Remand Reply Br. at
3-5. The subject of subsection (B) - ways and roads - seems to us to be just as "geographically
encompassing" as section 3(h)(l)(A)'s reference to "area ofland," and has the added benefit of
being a more concretely defined subject of geographic jurisdiction.

30 FMSHRC 677

other non-National Cement activities could occur on or along the road that would also be covered
by those standards should the Access Road be considered to be part of the mine under section
3(h)(l)(B).9 Excluding non-National Cement vehicles from the reach ofMSHA's subsection (B)
jurisdiction simply does not do nearly enough to prevent MSHA jurisdiction from potentially
attaching to the possible non-mine uses of the Access Road should the road be subject to MSHA
regulation as a mine. If the Access Road is considered to fall within the definition of"coal or
other mine," it would subject those on it to regulation of much more than their use of vehicular
transport over it.
C.

The Legislative History of Section 3(h)(l)

The Secretary cites no legislative history in support of her interpretation upon remand that
subsection (C) of section 3(h)(l) can be read to limit the scope of subsection (B). Rather, she
repeats arguments she previously made before the Commission in this case that the legislative
history supports a generally expansive interpretation of subsection (B), and thus the Access Road
should be considered "private" and "appurtenant to" to the cement plant. S. Remand Br. at 1721.

Specifically, the Secretary cites references in the Mine Act's history that the term "coal or
other mine" should be given the broadest possible interpretation. S. Remand Br. at 17-18. 10 In
response to that argument in our original decision, we relied upon the decision in Bush &
Burchett, Inc. v. Reich, 117 F.3d 932 (6th Cir. 1977). There, the court acknowledged the
legislative intention that "coal or other mine" be given "a very broad reading," but held that such
general legislative history does not mean that section 3(h)(l)(B) should be read contrary to
common sense. Id. at 936-37. The D.C. Circuit cited with approval the Bush & Burchett court's
opinion regarding the need to read some limit into section 3(h)(l)(B). See 494 F.3d at 1077.
Accordingly, we remain unpersuaded that this general gloss on section 3(h)(l) is adequate by
itself with respect to the terms of subsection (B) at issue here.

9

In fact, in our earlier decision, we specifically mentioned the use of explosives by a film
company along the road as one potentially problematic subject of MSHA regulation resulting
from the Access Road being considered a mine under section 3(h)(l )(B). 27 FMSHRC at 731.
10

fu considering the legislation that eventually became the Mine Act, the Senate
Committee responsible for drafting it stated ''that what is considered to be a mine and to be
regulated under this Act [should] be given the broadest possibl[e] interpretation, and it is the
intent of this Committee that doubts be resolved in favor of inclusion of a facility within the
coverage of the Act." S. Rep. No. 95-181, at 14 (1977), reprinted in Senate Subcomm. on Labor,
Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977,
at 602 (1978).
30 FMSHRC 678

The Secretary also cites the legislative history of a predecessor statute to the Mine Act, in
which the language of section 3(h)(l )(B) originated. S. Remand Br. at 19-20. With regard to
that legislative history, we stated in our first decision:
As both parties acknowledge ... a definition of"mine" much
along the lines of that now found in section 3(h)(l) of the Mine
Act, and including the subsection (B) language at issue here,
originated in a predecessor statute to the Mine Act, the Federal
Metal and Nonmetallic Mirie Safety Act [("Metal Act")]. See Pub.
L. No. 89-577, Sec. 2(b), 80 Stat. 772, 772-73 (1966). There is no
explanation in the reports that accompanied that legislation of the
meaning of"private ways ahd roads appurtenant to." See 1966
U.S.C.C.A.N. 2846 (S. Rep. No. 89-1296). Consequently, the
applicable legislative history is of no assistance in determining
whether Congress intended to extend MSHA's jurisdiction to a
road over which the mine operator substantially lacked the ability
to exclude other users, as is the case here.
27 FMSHRC at 734 n.15.
The reason that we did not further consider the legislative history when we found no
report language addressing the subject is because the testimony that first suggested the enactment
oflanguage along the lines of what is now section 3(h)(l)(B) included a request for a much
broader definition of"coal or other mine" with respect to access roads. An earlier version·ofthe
Metal Act defined "mine" with the language now found in subsection (A) of section 3(h)(l) of
the Mine Act and some of the language found in subsection (C) of that section. However, there
was as yet no reference to "private ways or roads appurtenant" as appears now in subsection (B).
See H.R. 6961, 89th Cong.§ 2(b) (1965), reprinted in H.R. Select Subcomm. on Labor of the
Comm. on Education and Labor, Federal Metal and Nonmetallic Safety Act: Hearings on H.R.
6961 and Similar Bills, at 1 (1965) ("Hearings on H.R. 6961").
Subsequently, in hearings held on that and similar bills, Sidney Zagri, legislative counsel
of the futernational Brotherhood of Teamsters, provided the testimony excerpted in the
Secretary's brief on remand. See S. Remand Br. at 19-20. He specifically further testified:
I would like to take up now specific amendments dealing with specific
problems that we face as Teamsters in the mining industry.
Problem No. 1.
Access roads: The condition of access and service roads is a frequent
cause of accidents for truckdrivers and others. Roads are too narrow, covered
with dust in the summer and ice in the winter, with shoulders too soft for any

30 FMSHRC 679

vehicle to venture into in any emergency and, in most cases, unposted with any
uniform safety signs or any signs at all. Workings are often too close to access
roads, adding falling rocks as an additional hazard to drivers. Blasting often takes
place too close to access roads.
Amendment 1: After the word "minerals" add "all access and service roads
leading into or from such areas," ....
[Rep]. Gibbons. Does that include public highways?
Mr. Zagri. No, sir.
[Rep]. Gibbons. You are talking about the road on the private property?
Mr. Zagri. Yes. This is an area where there is no protection afforded at
the present time.
Statement of Sidney Zagri, Legislative Counsel, International Brotherhood of Teamsters, Hearing
held May 5, 1965, reprinted in Hearings on H.R. 6961, at 220, 223.
It was after the hearing that the House legislation, like the eventual Metal Act, included
the language deft.rung "mine" presently at issue: "(1) an area ofland from which minerals ... are
extracted ... , (2) private ways and roads appurtenant to such area, and (3) ...." See H.R. 8989,
89th Cong.§ 2(b) (1965), reprinted in Sen. Subcomm. on Labor of the Comm. on Labor and
Public Welfare, Metal and Nonmetallic Safety Act: Hearings on H.R. 8989, S. 2972, S. 996, and
S. 3094, at 2, 3 (1966). Clearly, the purpose of the Teamsters' suggested amendment to the
legislation was to reach non-public roads in order to close a gap in safety coverage. In addition,
the problem was described in the context of roads accessing and serving mines.

However, as National Cement points out, it is noteworthy that the more limited "private
ways and roads appurtenant" language was ultimately adopted by Congress instead of the
suggested broader language extending the definition to include all private access and service
roads leading to or from a mineral extraction area. See NC Remand Br. at 33-34. The
Teamsters' suggested language seemed designed to cover more roads less immediately connected
to extraction lands, including the Access Road, because all that would need to be shown was that
the road was used in accessing extraction areas from public roads.
Because the legislative history regarding the intended reach of subsection (B) is
inconclusive, it is insufficient to support, by itself, the Secretary's interpretation of section
3(h)(l ). The legislative history not only fails to adequately address the intent of Congress with
respect to roads like the Access Road, but it offers no support whatsoever for the Secretary's use
of subsection (C) to limit the scope of subsection (B) in her interpretation on remand of section
3(h)(l).
30 FMSHRC 680

Consequently, we find that as a preliminary matter the Secretary's interpretation upon
remand of section 3(h)(l) is impermissible. That the Secretary cannot fmd a way to assert
jurisdiction over the Access Road under the terms of section 3(h)(l )(B), Without also bringing
non-mine use of the road under the coverage of the Mine Act, is a strong indication that the terms
"private" and "appurtenant to" only make sense within the context of the Mine Act in the
narrower meaning of those terms noted by the court: restricted to use by the mine and dedicated
exclusively to the mine's use. See 494 F.3d at 1074.
D.

Treating Parties Other Than National Cement as Operators of the Access Road

Because we conclude that the Secretary's interpretation upon remand of section 3(h)(l) is
impermissible, we need not reach the additional question of whether that interpretation
adequately addresses the concerns the court enumerated in questioning whether, given the
enforcement provisions of the Mine Act, it is reasonable to consider the Access Road to be
"private" and "appurtenant to" the cement plant and thus within the jurisdiction of the Mine Act.
See 494 F.3d at 1075-76. However, we feel compelled to address the Secretary's apparent
assumption that her interpretation can be easily reconciled with those provisions of the Act by
treating a party other than National Cement, such as Tejon, as a mine "operator" of the Access
Road for purposes of the Mine Act in situations in which National Cement is not the "operator."
In response to each of the three areas of concern the court outlined in its opinion (see supra, slip
op. at 4), the Secretary falls back on this assumption. See S. Remand Br. at 33-34; S. Remand
ReplyBr. at 10-13.
The court in its decision specifically stated that:
[b ]ecause the Act defines a mine "operator" expansively to include
"any owner, lessee, or other person who operates, controls, or
supervises a coal or other mine or any independent contractor
performing services or construction at such mine," 30 U.S.C.
§ 802(d), under the Secretary's interpretation Mine Act jurisdiction
would extend to Tejon as the "operator" (owner) of the Access
Road and to any other party with right-of..:way control over the
Access Road notwithstanding the party lacks any relation
whatsoever to the mine_ 's operations. Each of them could be liable
as a mine operator for mine safety infractions occurring on the
Access Road. 9

9

In fact, the Secretary acknowledges that she would treat
Tejon as an operator subject to Mine Act jurisdiction.
494 F .3d at 1076 (emphasis added). The Secretary's response is to state that under her
"interpretation ... ifTejon retains {or any other entity is given) the authority to control

30 FMSHRC 681

maintenance of the [Access R]oad, it is the operator of the road. As such, it is required to
comply with MSHA standards relating to road maintenance." S. Remand Br. at 33.
The court had ample grounds to question how a party with absolutely no involvement in
mine operations can nevertheless be considered a mine "operator" under the Mine Act. In
Berwind Natural Resources Corp., 21FMSHRC1284 (Dec. 1999), the Commission explained:
When reviewing the Secretary's decision to designate an entity as
an operator under the Act, the Commission will examine whether
the entity has substantial involvement with the mine.... [W]e will
evaluate the participation and involvement of the entity in the
mine's engineering, financial, production, personnel, and health
and safety matters to determine whether that entity qualified as an
operator under the Act.

Id. at 1293. Thus, the Commission has made clear that an entity must have "substantial
involvement" with mine-related activities in order to be considered a mine "operator."
The Secretary provides no supporting authority for treating an entity like Tejon as an
"operator" under the Mine Act. To do so would constitute an application of the Mine Act that
should be undertaken only after a thorough consideration of the ramifications. Here, however, it
is offered as little more than an aside to justifying the Secretary's continued effort to establish
jurisdiction over the Access Road.
On the present record, we simply cannot agree with the Secretary that the Access Road
can be severed from the cement plant so that a separate entity can be deemed to be the operator of
the Access Road and the Mine Act can be enforced against that operator. Given the factors that
the Commission examines in determining who is a mine "operator," it is inconceivable that a
road like the Access Road would be considered as a stand-alone "mine" for purposes of the Mine
Act.

In summary, the Secretary's interpretation upon remand is not a permissible construction
of section 3(h)(l)(B). Even ifit were, it fails to adequately answer the D.C. Circuit's concerns
regarding the reconciliation of the interpretation with the enforcement provisions of the Mine
Act.

30 FMSHRC 682

ill.
Conclusion
For the foregoing reasons, we reject the Secretary's interpretation upon remand and
vacate the citation.

30 FMSHRC 683

Commissioner Cohen, concurring in result:
I did not have a seat on the Commission when it first heard this case and issued its
decision in National Cement Co. of California, 27 FMSHRC 721(Nov.2005). Had I been, I
would have joined in the dissent to that decision of my colleague, Commissioner Jordan. See 27
FMSHRC at 737-43 (Comm. Jordan, dissenting). I believe that Commissioner Jordan's original
opinion, as amplified by the subsequent dissent in the D.C. Circuit case, sets forth the proper
interpretation of section 3(h)(l)(B) of the Mine Act, 30 U.S.C. § 802(h)(l)(B). See Sec'y of
Labor (MSHA) v. National Cement Co. of California, 494 F.3d 1066, 1077-80 (D.C. Cir. 2007)
(Rogers, J., dissenting).
Using, as we must, the framework for interpreting statutes first set forth in Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44 (1984), I believe
that the terms ''private" and "appurtenant to" as they are used in section 3(h)(l)(B) have
unambiguous meanings. "[P]rivate" means not open to the public, and it is undisputed that the
Access Road is not open to the public. See 494 F.3d at 1078; 27 FMSHRC at 737-38. The term
"appurtenant" is used to describe the relationship of a lesser property interest to a greater
property interest, the most common example of which is an easement. Here, again, National
Cement's use of the Access Road is by way of an easement that is coincident with its leasehold
interest in the Tejon Ranch property for its cement plant facility. See 494 F.3d at 1078; 27
FMSHRC at 738-39. Thus, I would interpret section 3(h)(l)(B) to conclude that the Access
Road falls within MSHA's jurisdiction.

I believe such a conclusion is particularly appropriate given the characteristics of the
Access Road which prompted MSHA to seek the installation of berms or guardrails along the
road. I disagree with the original majority in this case (27 FMSHRC at 733) that the Access
Road can be equated with a typical highway with respect to the hazards that drivers face in using
the road. The record amply documents the dangers faced by drivers on the road, particularly the
drivers of the heavy trucks that are by far the most frequent users of the road. It is a two-lane
road without berms or guardrails, traveled an average of 148 round-trips a day by trucks
weighing approximately 80,000 pounds when loaded. 27 FMSHRC 84, 86, 91 (Jan. 2005)
(ALJ). The drop-offs along the road range from six feet to approximately 25 feet. Id. at 86; Jt.
Ex. 70 (Citation No. 6361036). Accidents have occurred along this road, including the rollover
of one heavy truck and the partial rollover of another. S. Mot. for Summ. Dec., Exs. 5 (Aff. of
Goldade), 6 (NC Accident Report & Mem. from Randy Logsdon dated Sept. 8, 2003), & 7 (NC
First Supplemental Resp. to Interrog. No. 19). Miners have made complaints to MSHA about the
road conditions. Id., Ex. 5. MSHA determined that the road is hazardous, especially during
inclement weather. 27 FMSHRC at 86-87; Jt. Ex. 70. Clearly, MSHA was motivated by
significant safety concerns in asserting jurisdiction over the Access Road. See 494 F.3d at 1080;
27 FMSHRC at 741-43.

I also disagree with the original majority that the comparatively infrequent use of the
Access Road for non-National Cement purposes would lead to such absurd results under the
30 FMSHRC 684

Mine Act that the terms of section 3(h)(l)(B) cannot be literally applied in this instance. As the
dissenting opinions cogently explain, concern for such results seems little more than speculation
given the disparity in road use. See 27 FMSHRC at 739-42; 494 F.3d at 1079-80.
My opinion on these issues, however, is moot at this point in the case. The majority of
the D.C. Circuit panel hearing the appeal of the Commission's original decision held that the
terms of section 3(h)(l )(B) at issue do not have plain meanings but rather are ambiguous, and
ruled that in order for the Secretary to assert jurisdiction over the Access Road, on remand before
the Commission she must submit an interpretation of section 3(h)(l)(B) that both addresses the
concerns of National Cement .and Tejon and is in harmony with the Mine Act's overall
enforcement scheme. See 494 F.3d at 1074-77.
Having reviewed the interpretation submitted on remand by the Secretary (S. Remand Br.
at 13), I conclude that this interpretation is not a reasonable construction of section 3(h)(l ).
From the language of section 3(h)(l) setting forth its three subsections, it is clear to me that
section 3(h)(l) was designed to provide alternative bases for Mine Act jurisdiction, such that it is
sufficient for that jurisdiction to attach to a subject as long as the requirements of only one of the
three subsections is met. Thus, I cannot agree with the Secretary that subsection (C) limits,
modifies, or otherwise explains the reach of subsection (B), and I certainly cannot agree with the
Secretary that subsection (C) can serve any such purpose with respect to subsection (B) but not
with respect to. subsection (A). See S. Remand Reply Br. at 3-5.
Consequently, I join Chairman Duffy and Commissioner Young in rejecting the
Secretary's interpretation as an impermissible construction of section 3(h)(l). I do so based on
the language of section 3(h)(l) alone, and I join in sections II.A and II.B of their opinion. See
slip op. at 6-11. Accordingly, I do not feel it necessary to reach the Secretary's arguments
regarding legislative history (id. at 11-14), nor do I join in my colleagues' conclusions regarding
the Secretary's position on treating Tejon as an operator under the Mine Act. See id. at 14-15.

Robert F. Cohen. Jr., Commissioner

30 FMSHRC 685

Commissioner Jordan, dissenting:
I agree with my colleagues that in this case the Secretary's interpretation of section
3(h)(l)(B), 30 U.S.C. § 802(h)(l)(B) (the section of the Mine Act defining a ''mine,") is
unreasonable. Consequently, I am also in agreement with the majority that we should not defer
to the Secretary's interpretation. Nonetheless, I conclude that the statutory definition of''mine"
incorporates the road at issue, and I find that the concerns articulated by the Court of Appeals,
regarding the Secretary's assertion of jurisdiction over the road, Secretary ofLabor (MSHA) v.
National Cement Co. ofCalifornia, 494 F.3d 1066, 1075-77 (D.C. Cir. 2007), have been
addressed. Accordingly, I would reverse the judge's decision on remand in which he vacated the
citation against National Cement.
Section 4 of the Mine Act provides in part that "[ eJach coal or other mine ... shall be
subject to the provisions of this Act." 30 U.S.C. § 803. The term "coal or other mine" is defined
in section 3 of the Act, 30 U.S.C.§ 802. Specifically, section 3(h)(l) defines it in pertinent part
as:
(A) an area of land from which minerals are extracted in nonliquid form or, if in
liquid form, are extracted with workers underground, (B) private ways and roads
appurtenant to such area, and (C) lands, excavations, underground passageways,
shafts, slopes, tunnels and workings, structures, facilities, equipment, machines,
tools, or other property including impoundments, retention dams, and tailings
ponds, on the surface or underground, used in, or to be used in, or resulting from,
the work of extracting such minerals from their natural deposits in nonliquid form,
or if in liquid form, with workers underground, or used in, or to be used in, the
milling of such minerals, or the work of preparing coal or other minerals, and
includes custom coal preparation facilities.
30 u.s.c. § 802(h)(l).
The Secretary interprets the definition of"mine" in section 3(h)(l)(B) of the Mine Act to
include the road at issue in this case. S. Remand Br. at 13. However, she interprets section
3(h)(l)(C) to qualify section 3(h)(l)(B) and thus to exclude from the definition of"mine"
vehicles on the road that are not related to National Cement's mining operations. Id. I reject this
tortured reading of the Mine Act, and agree with my colleagues and with National Cement that
Congress did not, in section 3(h)(l ), articulate a three-part list of criteria that must be met before
an entity is a "coal or other mine." Rather, Congress set forth three alternative and independent
definitions, with any one being sufficient to bring an entity under the Secretary's jurisdiction as a
"coal or other mine." Slip op. at 9-1 O; NC Remand Br. at 21.
Furthermore, the Secretary has failed to adequately explain the inconsistency between
interpreting section 3(h)(l)(B)'s definition of mine so as to not include all equipment on such
roads (because, according to her, the terms of section 3(h)(l )(C) limit the scope of section

30 FMSHRC 686

3(h)(l)(B)) but interpreting section 3(h)(l)(A)'s definition of"mine" (an "area ofland from
which minerals are extracted") as including everything within the extraction area (and thus not
applying section 3(h)(I)( C) to limit its scope). S. Remand Reply Br. at 3. National Cement
rightly notes that Congress would not have meant to meant to include everything on the land
under MSHA's jurisdiction when extraction areas are involved, but not where roads leading to
and from those areas are concerned. NC Remand Surreply Br. at IL Thus, I find the Secretary's
contorted interpretation unreasonable, and would not accord it deference.
That is not the end of our inquiry, however. In cases where we are not bound to accord
deference to the Secretary's statutory interpretation (because we find it is not reasonable), we
may proceed de novo. See Rapaport v. Office of Thrift Supervision, 59 F.3d 212, 216-17 (D.C.
Cir. 1995) (Court proceeds with a de novo interpretation when it refuses to accord deference to
an agency's statutory interpretation because the agency shared responsibility for the
administration of the statute with other agencies); Hecla Mining Co. v. US., 909 F.2d 1371, ·
1376-77 (10th Cir. 1990) (Court holds that agency's interpretation of the statutory language was
unreasonable but upheld agency's ultimate conclusion on other grounds). 1
As to the statutory language in the Act's definition of''mine," the Court of Appeals
observed that the word "private," as used in section 3(h)(I )(B), could conceivably mean
restricted to the use ofa certain "'group or class of persons' - in this case, all of the grantees to
whom Tejon may grant a right of way- and their invitees." 494 F.3d at 1074. Italso
acknowledged that the word "appurtenant" in the statute could permissibly be "construed to
encompass a road such as the Access Road because it is subject to a transferable right of way
benefitting the mine lessee." Id. As I discussed in detail in my previous dissent in this case, 27
FMSHRC 721, 737-39 (Nov. 2005), both the meaning of the statutory terms and the legislative
history of the Mine Act support MSHA's jurisdiction over the road. Briefly, in terms of the
statutory language, Tejon has admitted that the road is private. S. Mot. For Sum. Dec., Ex. 3 at 3
(Intervenor's Adm. No. 2). And, simply put, it is appurtenant to the mine because Tejon has
granted National Cement an easement. 27 FMSHRC at 738.
Thus, I conclude that, pursuant to section 3(h)(l)(B) of the Mine Act, the Secretary may
assert jurisdiction over the access road. The Court of Appeals, however, has raised legitimate
concerns about the ramifications of a decision granting her such jurisdiction. I believe, however,
that these concerns have been adequately addressed.
At the outset, it is essential to focus on the usual, day-to-day uses of the road in question.
National Cement's activities dominate use of the road-it is undisputed that the majority of
traffic on the road is for cement-plant-related purposes. 27 FMSHRC 84, 91 (Jan. 2005) (ALJ)
(citing Stip. 38). As the judge found in his initial decision, "[n]on-National Cement use of the
road is dwarfed by National Cement traffic." 27 FMSHRC at l 01. Consequently, as I noted in

1

My colleagues do the same, articulating their own interpretation of the statutory
language after rejecting the Secretary's. Slip op. at 13-14.
30 FMSHRC 687

my dissent in the first Commission decision in this case, we should not focus on theoretical
scenarios that may be troubling at the expense of taking into account the potential dangers
involved with the ongoing use of the road by heavy mine trucks. 27 FMSHRC at 741-43.
Miners on a road with steep drops (up to 25 feet) driving heavy cement trucks more than 45,000
times a year, during all hours of the day and night, 27 FMSHRC at 86, 91 (citingStips.13, 41);
S. Br. at 3, should not be deprived of the protection of berms and guardrails due to mere
conjecture about the erratic, infrequent use of the road by a movie truck or hunter.
My colleagues' restrictive use of the terms "private" and "appurtenant," and their
emphasis on the exclusive use of a road as a requirement for MSHA jurisdiction, slip op. at 1314, creates as tortured a scenario as the interpretation of the Secretary that they reject. The
cement trucks using the access road are under MSHA jurisdiction while at the quarry, and, as the
case law cited by the majority holds, slip op. at 9-10 & n. 7, could be under MSHA jurisdiction
while being fixed at a repair shop off of the mine property. See, e.g., U.S. Steel Mining Co., 10
FMSHRC 146, 147-48 (Feb. 1988) (central repair shop for three of operator's mines that were as
far as eight and one-half miles away, constitutes a mine under section 3(h)(l)); Jim Walter Res.,
Inc., 22 FMSHRC 21, 22-25 (Jan. 2000) (holding that a central supply shop as far as 25 miles
away from the operator's four mines was a mine). Thus, the result of the majority's decision
today means that MSHA cannot require protections for National Cement truck drivers as they
traverse the access road from the quarry to the highway, but their trucks could be under MSHA
jurisdiction once they are in a central repair shop located miles away from the mine.

It is in this context that I consider the three concerns set forth by the Court of Appeals.
First, the Court questioned whether National Cement has the authority to alter the road as the
Secretary requires. 494 F.3d at 1075. However, substantial evidence supports the finding of the
judge that National Cement has the requisite control to install berms or guardrails on the road.
27 FMSHRC at 100 (citing Stips. 35, 36, 37). The stipulations establish that National Cement
has a history of maintaining and improving the road without Tejon's pre-approval. This includes
resurfacing, sealing, and restriping the road and installing speed limit signs and constructing
speed bumps.
Next, the Court expressed a concern that National Cement would be required to assume
responsibility for all road users, including those over whom it had no authority. 494 at F.3d
1075. This would include compliance with withdrawal orders,2 accident notification, and hazard
training. 494 F.3d at 1075-76. These concerns articulated by the Court are dramatically reduced,
2

The Secretary rightly notes that if MSHA were to issue a withdrawal order to an
independent contractor at a mine, the contractor likely would not have the authority to withdraw
employees of the production operator from the affected area. S. Remand Br. at 28-29.
Nonetheless, as the Secretary explains, the extraction area would still be a "mine" and, as she
correctly reasons, "the fact that an independent contractor who is an operator does not have the
requisite control to withdraw all persons from an affected area which it 'operates' is not a basis
for determining that the affected area is not a 'mine .... "' Id. at 29.
30 FMSHRC 688

however, by the fact that Tejon, which owns the road, may be considered an operator. Section
3(d) of the Mine Act defines an "operator" as "any owner, lessee, or other person who operates,
controls, or supervises a coal or other mine or any independent contractor performing services or
construction at such mine." 30 U.S.C. § 802(d). Moreover, case law makes clear that the
"owner" of a mine is an operator, regardless of whether the owner exercises control or
supervision of the mine. Assoc. ofBituminous Contractors, Inc. v. Andrus, 581F.2d853, 862
(D.C. Cir. 1978).

Benvind Natural Resources Corp., 21FMSHRC1284 (Dec. 1999), cited by my
colleagues, slip op. at 15, does not require a different conclusion. In Benvind, the Commission
rejected the Secretary's decision to cite an entity that lacked substantial involvement with the
mine, but in that case, unlike here, the Secretary was also able to cite the entity that exerted dayto-day supervision over the area in question. 3 Id. at 1300-05. Here, National Cement has
contended that it might not be able to abate violations or comply with withdrawal orders because
it does not own the road or have any control over certain persons who use the road. In such a
case it would be entirely appropriate to cite Tejon because, in spite of its non-involvement in the
mining operations, as the owner Tejon can authorize any necessary construction to the road and
impose any necessary conditions to persons' access to the road. If National Cement lacked the
authority to construct the necessary berms, and guardrails, Tejon can construct them.
Alternatively, Tejon's agreement with National Cement could provide National Cement with the
authority to perform those repairs and alterations MSHA deems necessary for the road to comply
with mandatory safety standards. Furthermore, Tejon can condition access to the road to those
persons who agree to comply with withdrawal orders, accident reporting requirements, hazard
training, or standards relating to the handling of explosives.
To the extent these obligations are viewed as burdensome for Tejon, given its lack of
involvement in the mining operation, it is worth noting that as the mine owner, Tejon receives
royalty payments based on cement sales and thus profits from National Cement's use of the road.
Jt. Ex. 3 at 4-6. I believe that this satisfies the Court of Appeal's third concern, 494 F.2d at 1076,
that Tejon (or others with right-of-way control over the road) could be liable as an operator for
mine safety infractions occurring on the road.

In any event, such compliance is not as burdensome as National Cement implies. For
example, the immediate notification reporting requirements only apply when an operator knows
or should know that an accident has occurred. See 30 C.F.R. § 50.10. Furthermore, generally
only road accidents involving death, injury to an individual that has a reasonable potential to
cause death, or entrapment for more than 30 minutes must be immediately reported and
investigated. See 30 C.F.R. § 50.2(h). Finally, the record reflects that National Cement has
previously reported accidents that occurred on the road. S. Mot. for Summ. Dec., Ex. 6.

3

In light of the D.C. Circuit's decision in Secy ofLabor v. Twentymile Coal Co., 456
F .3d 151 (D. C. Cir. 2006), one could question the vitality of the Berwind holding cited by my
colleagues.
30 FMSHRC 689

For the reasons stated above, I would uphold the Secretary's jurisdiction over the access
road. I agree with Judge Rogers that"[ a] speculative concern about a tiny fraction of access-road
users should not be used to uproot the major purpose of the Mine Act." 494 F .2d at 1080
(Rogers, J., dissenting). Accordingly, I respectfully dissent.

30 FMSHRC 690

Distribution:
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-3939
Thomas C. Means, Esq.
Crowell & Moring LLP
1001 Pennsylvania Avenue NW
Washington, DC 20004-2595
Margaret S. Lopez, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
2400 N Street NW, 5th Floor .
Washington, DC 2003 7
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Ave., N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 691

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

August 27, 2008
SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH
ADMlNISTRATION {MSHA)

DocketNo. YORK.2008-161-M
A.C. No. 30-03503-136593

v.
H.H. RAUH PAVJNG, lNC.

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 25, 2008, the Commission received from H.H.
Rauh Paving, Inc. ("Rauh") a letter seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section lOS(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On January 17, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000136593 to Rauh, proposing penalties for eight
citations and orders that previously had been issued to the company's Rauh Aggregate Mine. On
April 26, 2008, Rauh filed a request to reopen this proposed assessment, stating that the operator
is a seasonal business and, as a result, its CEO was out of town when the assessment arrived and
did not receive it until late February. Rauh asserts that, in early March of 2008, it then contacted
MSHA to reopen the penalty assessment. On April 16, 2008, Rauh received a delinquency

30 FMSHRC 692

notification from MSHA and then filed the instant request to reopen. The Secretary states that
she does not oppose Rauh' s request to reopen. 1
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure 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).

1

We agree with the Secretary's assertion that the operator must make arrangements to
assure in the future that proposed assessments are promptly processed when the CEO is not
present.

30 FMSHRC 693

Having reviewed Rauh's motion 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 Rauh'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 694

Distribution:
John R. Raugh
H.H. Raugh Paving, Inc.
P.0.Box2
Lakewood, NY 14750
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James
Chief
Office Of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 695

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

August 28, 2008

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

Docket No. SE 2008-563-M
A.C. No. 22-00460-132151 V4I

v.
PARHAM TRUCKING 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 April 8, 2008, the Commission received from
Parham Trucking Company ("Parham Trucking") a letter 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 April 10, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Citation No. 6097286 to Parham Trucking. On November 20, 2007, MSHA
issued an assessment covering the citation with a proposed penalty of$2,500. fu its letter,
Parham Trucking states that it did not receive the proposed assessment and did not have an
opportunity to contest it. The Secretary responds that the proposed assessment was sent by
certified mail to the operator's address of record, and was returned to MSHA with the notation:
"RETURN TO SENDER[;] UNKNOWN REASON[;] UNABLE TO FORWARD." On
February 20, 2008, MSHA also sent a letter by first class mail to the operator's address of record,
indicating that the proposed penalty had become delinquent. MSHA claims that it has no record
of the letter being returned. On these grounds, the Secretary requests that the Commission either
30 FMSHRC 696

deny Parham Trucking's request to reopen or, alternatively, direct the operator to provide an
explanation as to why service of the proposed assessment was defective.
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).
Having reviewed Parham Trucking's 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 Parham Trucking's failure to timely contest the penalty proposal and whether relief from the
final order should be granted. Before granting such relief, the judge should require an
explanation from Parham Trucking of why service of the proposed assessment was defectiv~ and
of other circumstances that may have caused its delay. After that, if it is determined that relief
from·a final order 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 697

Distribution:
Ray Parham
Parham Trucking Co.
Highway 278 East
P.0.Box366
Amory, MS 38821
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 698

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

August 28, 2008

Docket Nos. WEV A 2004-117-RM
WEVA 2004-118-RM
WEVA 2004-119-RM
WEVA 2004-120-RM
WEVA 2004-121-RM
WEVA 2004-122-RM
WEV A 2005-34
WEVA 2005-53

iECRETARY OF LABOR.
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

>PARTAN MINING COMPANY, INC.

JEFORE: Duffy, Chairman, Jordan, Young, and Cohen, Commissioners
DECISION
~Y:

Jordan, Young, and Cohen, Commissioners

These consolidated civil penalty and contest proceedings, arising under the Federal Mine
:afety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2000), stem from a fatal electrical
ccident that occurred at Spartan Mining Company's ("Spartan") Ruby Energy Mine.
Ldministrative Law Judge Jerold Feldman affirmed two citations arising under section 104(a) of·
ie Mine Act, 30 U.S.C. § 814(a), and one citation and one order arising under section 104(d),
0 U.S.C. § 814(d). 29 FMSHRC 465 (June 2007) (ALJ). He imposed penalty assessments of
190,000 for the violations~ Id. at 488-89. Spartan successfully petitioned for review, and the
:ommission held oral argument in the case. For the reasons that follow, we affirm the judge in
art, and vacate and reverse in part.

I.
Factual and Procedural Background
Spartan, owned by Massey Coal Services, operated the Ruby Energy Mine near Delbarton
l Mingo County, West Virginia. 29 FMSHRC at 468-69. On February 5, 2004, the 002 section
:ew under the direction of section foreman William Sada entered the mine at its regular starting
me of 7 :00 a.m. Id. at 469. There were two continuous mining machines on the 002 section.
he continuous miner on the left side of the section was used to mine a line of pillars from the
o. 4 entry to the No. 1 entry. The continuous miner on the right side of the section mined
llars from the No. 8 entry to the No. 5 entry. Id. Continuous miner operator Jamie Hatfield
30 FMSHRC 699

began operating the left continuous miner in the No. 4 entry at approximately 7:35 a.m. Mining
continued in entries numbered 3, 2, and 1 as the day progressed. Upon completion of the No. 1
entry, Hatfield backed the continuous miner two crosscuts outby the pillar line in the No. 3 entry
for servicing. Id. at 470. Hatfield and crew electrician Kenneth McNeely serviced the miner. Id.
at 469, 470. After servicing, Sada instructed Hatfield to move the continuous mining machine
into the No. 4 entry to start mining. At approximately 1:04 p.m., as Hatfield trammed the
continuous miner, the ripper head or the cutting drum of the continuous miner struck the trailing
cable, which provided electrical power to the continuous miner. 1 The damage caused two
conductors to come into contact, resulting in a phase-to-phase short circuit. Id. at 470. The
continuous miner immediately ceased operating, and power went out on the section and the
power station. Id. The mine fan stopped, and ventilation ceased. Id.
Foreman Sada and shuttle car operator Kenneth Collins were a few feet outby the
continuous mining machine when contact with the ripper head occurred. Jt. Ex. 2, if 5. The
foreman went to the section phone, located approximately 280 feet away by the feeder, to call the
surface. 29 FMSHRC at 471. He spoke with Superintendent Steven Neace, who informed him
that all power to the mine, including the mine fan and all power to surface facilities, including
the preparation plant, was out. 29 FMSHRC at 471. Neace and Sada testified that Neace
informed Sada that he thought Appalachian Power Company had caused the power outage. Id.;
Tr. 559, 621.
Meanwhile, Hatfield and Collins unsuccessfully attempted to remove the trailing cable
from beneath the continuous miner's ripper head. Id. at 472. Collins then walked approximately
six crosscuts outby the section belt head to retrieve a scoop for the purpose of attempting to
bump the ripper head from the cable. Collins met scoop operator Charles Smith, and both
brought the scoop back to the continuous miner. Id. McNeely, who was not at the continuous
miner at the time, went to the section phone and inquired about the power outage; Neace
informed McNeely that ifthe ventilation did not resume operation within 15 minutes, all
personnel would have to leave. Id.
Sada returned to the continuous miner at approximately 1:09 p.m. Id. As he approached,
he saw McNeely sitting in a personnel carrier in the crosscut adjacent to Sada's position between
the No. 3 and No. 2 crosscuts. Id. at 472-73. Sada stated that he told McNeely that they would
have to go outside in 15 minutes. Id. at 473. Sada could see the scoop being operated in front of
the continuous miner. Id. at 472; Jt. Ex. 2, ii 10. Smith bumped the scoop against the ripper
drum of the continuous miner, allowing Hatfield to pull the cable free. 29 FMSHRC at 473.
Sada heard Hatfield state that the cable was freed and the cable jacket ''was not even busted." 29
FMSHRC at 473; Jt. Ex. 2, ii 11. Sada left to tell the miners in the right side of the section that
they might have to evacuate the mine. 29 FMSHRC at 473. McNeely arrived at the continuous

1

The ripper head extends the full width of the continuous mining machine. It contains a
number of bit lugs, pointed metallic objects, that are attached to the cutting drum. The bit lugs
are the equivalent of teeth on a circular saw. Id. at 467.

30 FMSHRC 700

mining machine and told Hatfield and Collins that he needed to check the damaged area of the
cable. Id. He also told Hatfield and Collins that ''they only had 15 minutes until they had to
leave the section." Id.; Jt. Ex. 2, ~ 12. McNeely began cutting the outer jacket off the trailing
cable at the damaged area. 29 FMSHRC at 473. Smith returned the scoop to the section belt
head. Id. After traveling to the right side of the section, Sada returned to the section mine phone.
Id.
McNeely and Hatfield continued repairing the cable as Collins pulled on the waterline
that was also struck, in an attempt to remove it from under the ripper drum. Id. McNeely cut
about 14 inches of the outer jacket off the trailing cable, exposing the three power phases, a
ground wire, and a monitor wire. Id. Two of the power phases were burned and needed to be cut
and spliced. The outer jacket on the third power phase was damaged and needed to be reinsulated. The ground and monitor wires were notdamaged. McNeely walked to his personnel
carrier to get tape and connectors. He returned on his personnel carrier, parking it behind the
continuous mining machine. Id. As McNeely worked on the second power phase, Hatfield heard
a humming noise and felt air movement. The mine's carbon monoxide sensor data base reflects
that power was restored to the mine at 1: 18 p.m., approximately 14 minutes after power was lost.
Id. McNeely asked Collins to go to the section power center to see if mine power had been
restored. McNeely began work on the third phase and cut the third phase apart. Foreman Sada
was at the dumping point area at 1: 18 p.m. and noticed that the mine power had been restored.
He went to the section power center located approximately 400 feet from the left continuous
miner and started closing the circuit breakers for all face equipment. 29 FMSHRC at 473. All
cable plugs were still attached to their receptacles on the power center. Id.
At approximately 1:20 p.m., Sada closed the circuit breaker for the left continuous mining
machine. As a result of the breaker being closed, McNeely received a fatal shock while repairing
the cable. As Collins walked toward the power center to see if the power had been restored, he
saw Sada closing the circuit breakers. Collins called out to Sada, telling him not to close the
circuit breaker for the left continuous mining machine. Collins heard Sada say, "Oh no." Id. at
474; Jt. Ex. 2, ~ 18.
The Department of Labor's Mine Safety and Health Administration ("MSHA")
investigated the accident and issued a number of citations and orders. A hearing was then held
before Commission Administrative Law Judge Feldman. At the outset, the judge found that the
violations concerned a high level of gravity~ as self-evident from the fatality. 29 FMSHRC at
478. He also determined that the "magnitude of negligence" required the imposition of civil
penalties that were higher than those initially proposed by the Secretary. Id. He discussed each
violation separately.

30 FMSHRC 701

A.

Citation No. 7224651 -Protection of Cable Under 30 C.F.R § 75.606

The judge found a violation of 30 C.F.R. § 75.6062 because the "fact that the trailing
cable was run over and damaged by the continuous miner is beyond dispute." 29 FMSHRC at
479. He rejected Spartan's assertion that because it had a policy in place to prevent cables from
damage it should not be held liable for the violation. Id. Although the judge determined that
running over the cable evidences no more than a moderate degree of negligence,3 he found that
the negligence analysis must also include the obligation to ensure that damaged cables are
properly handled. 29 FMSHRC at 4 79. The judge found that Sada knew or should have known
that there was at least a reasonable likelihood that the trailing cable was damaged. Id. at 479-80.
In so doing, the judge discredited Sada's and Hatfield's testimony that they believed the cable
was not damaged. Id. at 480. Relying on Spartan's policy ofremoving the cathead4 from the
power center and checking the cable after it is run over, the judge found that Sada's failure to
ensure that the cathead was disconnected and the cable tested to determine if it had been
damaged constituted a reckless disregard of an electrocution hazard. 29 FMSHRC at 468, 47980. The judge also found that the violation was significant and substantial ("S&S")5 and that the
gravity was extreme. 29 FMSHRC at 481. The judge raised the penalty from $32,500 to
$50,000. Id. at 478, 481.

2

Section 75.606 provides: ''Trailing cables shall be adequately protected to prevent
damage by mobile equipment."
3

MSHA's citation had illdicated that the negligence was "moderate." Id. at 478; Gov't

Ex. 4 at 1.
4

The catheads are the ends of the trailing cables that are plugged into the power center.
"Catheads are physically ... plugged into the receptacle [of the power center] similar to plugging
a cable into [a] ... television." Tr. 45.
5

The S&S terminology is taken from section 104(d){l) of the Act, 30 U.S.C.
§ 814(d)(l), which distinguishes as more serious any violation that "could significantly and
substantially contribute to the cause and effect of a ... mine safety or health hazard."
30 FMSHRC 702

B.

Citation No. 7224650-Lock Out Requirements under 30 C.F.R. § 75.511

Spartan stipulated that the trailing cable was not locked out, thereby violating 30 C.F.R.
§ 75.511. 6 29 FMSHRC at 482. The judge found that the violation was S&S, given the gravity
of the violation resulting in a fatality. Id. at 483. The judge found that McNeely's failure to lock
out and tag was a careless act that was highly negligent. Id. at 482-83. The judge found Spartan
to be directly negligent because Sada knew that the cathead had not been locked out when he
closed the continuous miner's circuit breaker. Id. at 4 76-77, 483. The judge also imputed the
negligence of McNeely to the mine operator because of the lack of proper supervision received
by McNeely, Hatfield and Collins. Id. at 475-77, 483. He found that Sada permitted McNeely to
remain at the site of the damaged cable without ensuring that proper procedures were followed.
Id. at 483. The judge concluded that Sada's lack of supervision, as evidenced by his asserted
lack of knowledge of the activities of the members of his crew, including his electrician, after the
power was lost and ventilation was interrupted, and a trailing cable had been struck, warrants the
imputation of an extremely high degree of negligence. Id. Instead of the $32,500 penalty
proposed by the Secretary, the judge assessed a $50,000 penalty given the S&S nature, the
extreme gravity and the reckless disregard in supervision that enabled a splicing repair to occur
on a damaged cable that Spartan knew was not locked and tagged out. Id.
C.

Citation No. 7224652 - Removal From Service under 30 C.F.R. § 75. l 725(a)

The judge found that Spartan violated 30 C.F.R. § 75.l 725(a)7 because it failed to remove
from service an electrical cable that had likely been damaged by the mobile equipment,
consistent with its own policy. 29 FMSHRC at 484. The judge found the gravity to be severe
and found the violation to be S&S. Id. The judge also determined that Spartan's conduct was
aggravated because Sada knew that the cable was struck by the ripper head and that power was
lost at the moment the trailing cable was struck. Id. Relying on Spartan's concession that a
damaged cable represents an extremely hazardous condition, the judge also concluded that
Spartan's failure to remove the cable from service was a result of unwarrantable failure. Id. He

6

Section 75.511 provides in pertinent part:
No electrical work shall be performed on low-, medium-, or high.voltage distribution circuits or equipment, except by a qualified person or
by a person trained to perform electrical work . . . . Disconnecting devices
shall be locked out and suitably tagged by the persons who perform such
work ....

7

Section 75. l 725(a) provides:

Mobile and stationary machinery and equipment shall be maintained in
safe operating condition and machinery or equipment in unsafe condition shall be
removed from service immediately.
30 FMSHRC 703

assessed a penalty of $60,000 rather than the $56,000 penalty proposed by the Secretary. Id. at
484, 485.
The judge rejected Spartan's argwnent that this citation and citation No. 7224650 (citing
a violation of section 75.511, for failure to lock and tag out) were duplicative. The judge found
that the standard obligated two distinct duties: Spartan could have locked out the continuous
miner for the purpose of initiating repairs or it could have removed the equipment from service
and postponed the repairs. The judge found that Spartan chose to do neither and that its inaction
constituted separate and distinct acts of omission. Id. at 481-82.
D.

Order No. 7228963 - Withdrawal from Working Section Requirement under 30
C.F.R. § 75.313(a)(3)

The judge found that Spartan violated section 75.313(a)(3) 8 because Foreman Sada did
not order his crew to retreat from the working section during the mine fan stoppage. 29
FMSHRC 486. He determined that "[i]f McNeely had been withdrawn from the working
section, instead of being allowed to repair an electrical cable while mine fan power was lost, he
would not have been electrocuted." Id. Although the judge disagreed with the Secretary's
conclusion that the violation was not S&S, he was not authorized to modify the order. Id. at 48687. The judge found that the gravity of the violation was "extremely serious" because permitting
mine operations to continue during the hazardous period of no mine ventilation exposed eight
miners to serious or fatal injuries. Id. at 487. The judge concluded that the violation was
properly designated as a result of unwarrantable failure because Sada's failure to withdraw the
miners from the working section constituted reckless disregard of safety procedures. Id. The
judge assessed a penalty of $30,000, instead of the $3,700 proposed by the Secretary, because of
the grave nature of the violation and the reckless and conscious failure to withdraw miners from
the working section. Id. at 486, 487.9

8

Section 75.313(a)(3) provides:
If a main mine fan stops while anyone is underground and the
· ventilating quantity provided by the fan is not maintained by a
back-up fan system - ... [e)veryone shall be withdrawn from the
working sections and areas where the mechanized mining
equipment is being installed or removed.

9

The judge approved the parties' settlement agreement with respect to a violation of30
C.F.R. § 75.310(b)(l), which requires a mine's fan power circuit to operate independently of
other mine circuits, and a violation of 30 C.F.R. § 75.313(b), which provides that, if fan
ventilation is restored within 15 minutes, a methane exam must be perfonned before work is
resumed. 29 FMSHRC at 488.
30 FMSHRC 704

II.
Dis1msition10
A.

Citation No. 7224651- Failure to Protect the Cable

Spartan argues that the judge's finding of a violation of section 75.606, requiring that
"[t]railing cables shall be adequately protected to prevent damage by mobile equipment," was not
supported and is contrary to law. PDR at 15. It relies on its policy that prevents cables from
being damaged, and asserts that there was no history of running over cables at this mine, and that
this was the first time that the cable had been damaged by the continuous mine operator. Id. at
15-16. Spartan further asserts that if a violation occurred, the violation was not S&S because the
damaged cable in and of itself posed no hazard and there were also breaker switches designed to
trip should there be a cable problem. Sp. Reply Br. at 12. Additionally, Spartan takes issue with
the judge's raising of the negligence level from moderate to reckless disregard, asserting that the
judge erroneously determined the degree of negligence for failing to protect the cable by
considering events after the damage occurred. Id. at 10-12.
The Secretary responds that the judge properly concluded that Spartan violated section
75.606. She argues that the judge was correct in finding that, because the cable was damaged by
mobile equipment, the cable was not adequately protected and a violation ofsection 75.606
occurred. Sec'y Br. at 15. The Secretary also asserts that the judge correctly concluded that the
violation was S&S because the damaged cable posed a significant danger to miners. Id. at 17-20.

10

Three Commissioners agree on the disposition of the issues raised on review with
regard to Citation No. 7224651, the violation of section 75.606, with Chairman Duffy writing
separately to concur, except that he would remand the penalty for it to be determined by the judge
instead of reinstating the penalty sought by the Secretary. All Commissioners also affirm the .
judge with regard to the S&S and unwarrantable violation of section 75.1725(a) alleged by
Citation No. 7224652, except that Chairman Duffy and Commissioner Young believe that the
record supports ascribing a lesser degree of negligence to the operator than the judge did in this
instance. All Commissioners also affirm the penalty assessed by the judge for Citation No.
7224652. With respect to Citation No~ 7224650, the violation of section 75.511, Commissioners
Jordan and Cohen would affirm the judge that an S&S violation and high negligence occurred
and affirm the penalty he assessed, while Chairman Duffy and Commissioner Young would
reverse the judge on the ground that the citation alleges a violation duplicative of the section
75 .1725(a) violation. Finally, three Commissioners affirm the judge regarding the
unwarrantability of the section 75.313(a) violation alleged in Order No. 7228963 and the penalty,
while Chairman Duffy would remand those issues to the judge for reconsideration. The effect of
an evenly split decision on an issue is to allow the judge's decision to stand as if affirmed on that
issue. See Pennsylvania Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), ajf'd on other
grounds, 969 F.2d 1501, 1505 (3d Cir. 1992).
30 FMSHRC 705

The Secretary maintains that the judge properly determined that the violation of section 75.606
was a result ofreckless disregard, contending that Foreman Sada's failure to take action to ensure
that the cable was not protected from further damage after it had been run over supports a high
negligence finding. Id. at 22.
Section 75.606 provides that "(t]railing cables must be adequately protected to prevent
damage by mobile equipment." It is undisputed that the trailing cable was run over and damaged
by the continuous mining machine. 29 FMSHRC at 479. Marcus A. Smith, an MSHA electrical
engineer who participated in the accident investigation, testified that whenever a multi·ton
mining machine smashes into a cable, "it creates significant damage." Tr. 157, 159.
Accordingly, the cable at issue was not adequately protected, and there was a violation of section
75.606.
We are not persuaded by Spartan's defenses that no violation should be found because
this was the first time the operator had run over a cable and that Spartan had a policy in place to
protect cables. The Mine Act is a strict liability statute, such that an operator will be held liable
if a violation of a mandatory standard occurs regardless of the level of fault. Asarco, Inc., 8
FMSHRC 1632, 1634·36 (Nov. 1986), aff'd, 868 F.2d 1195 (10th Cir. 1989). Additionally, the
Commission has held that compliance with an operator's plan, such as a ventilation or roof
control plan, does not preclude a finding of violation of the underlying roof or dust control
regulations. Cumberland Coal Res. LP, 28 FMSHRC 545, 553 (Aug 2006), aff'd, 515 F.3d 247
(3d Cir. 2008). If compliance with an MSHA-approved plan does not insulate an operator from
liability, it follows a fortiori that compliance with an internal policy cannot preclude a finding of
violation.
As to whether the violation was properly designated as S&S, 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.Mathies Coal Co., 6 FMSHRC 1(Jan.1984), the
Commission further explained:

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

30 FMSHRC 706

Id. at 3A (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir.
l995);Austin Power, Inc. v. Secretary ofLabor, 861F.2d99, 103 (5th Cir. 1988) (approving
Mathies criteria). An evaluation of the reasonable likelihood of injury should be made assuming
continued normal mining operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug.
1985).
Although Spartan argues that the cable itself posed no hazard, Congress has emphasized
the hazardous nature of unprotected trailing cables in mines. Section 75.606 mirrors section
306(f) of the Mine Act, 30 U.S.C. § 866(f), which was carried over from the Federal Coal Mine
Safety and Health Act of 1969, 30 U.S.C. § 801 et seq. (1976). In enacting that provision,
Congress recognized the significant danger posed by damage to trailing cables, such as shock
hazards and mine fires. S. Rep. No. 91-411, at 71 (1969), reprinted in Senate Subcomm. on
Labor, Comm. on Human Res., Part I Legislative History of the Federal Coal Mine Health and
Safety Act of 1969, at 197 (1975) ("Coal Act Legis. History").
In addition, MSHA Electrical Engineer Smith testified as to the great danger posed by an
unprotected trailing cable. Tr. 172-73. Spartan' s contention that, because the cable was
protected by a circuit breaker the cable was not hazardous, overlooks the fact that the circuit
breaker function failed to prevent a fatal injury in the instant case. Moreover, the Commission
and the Seventh Circuit have rejected an analogous argument with respect to installation of safety
measures to contain mine fires. Buck Creek, 52 F.3d at 136; Amax Coal Co., 18 FMSHRC 1355,
1359 n.8 (Aug. 1996). The court reasoned that the fact that an operator has "safety measures in
place to deal with a fire does not mean that fires do not pose a serious safety risk to miners.
Indeed, the precautions are presumably in place ... precisely because of the significant dangers
associated with coal mine fires." Buck Creek, 52 F.3d at 136. Likewise, installing a breaker
system does not mean that electrocution from cables will no longer pose a serious risk to miners.
This case demonstrates that failure to protect cables from damage can result in extremely serious
injuries. Accordingly, we affirm the judge's S&S determination that failing to protect the cable
contributed to an electrocution hazard that was reasonably likely to result in an injury of a
reasonably serious nature.
On the question of the degree of negligence that should be attributed to Spartan, the judge
found that "the act of running over the cable while tramming the continuous miner evidences, as
the Secretary suggests, no more than a moderate degree of negligence." 29 FMSHRC at 479.
However, the judge determined that the analysis of the degree of negligence does not stop at that
point. Id. He held that section 75.606 also required the mine operator to further protect cables
after they have been struck. Id. The judge and the Secretary point to the operator's actions after
the cable was smashed to substantiate the reckless disregard allegation. For example, the judge
faulted Spartan for "ignoring" the damaged cable and rested his reckless disregard determination
on Sada's failure to de-energize or otherwise isolate the cable so as to avoid an electrocution
hazard. Id. at 480-81; see also Sec'y Br. at 21-22.

30 FMSHRC 707

Contrary to the holding of the judge and the assertion of the Secretary, the text of section
75.606 does not apply to conditions after a violation has occurred. The regulation indicates that
an operator has to protect a cable from damage from mobile equipment. As mentioned above, it
states: "Trailing cables shall be adequately protected to prevent damage by mobile equipment."
Similarly, the citation only focused on the failure to protect the cable before the continuous
mining machine ran over it. Gov't Ex. 4. 11 The standard does not refer to conditions that arise
after the damage has already occurred. The judge in effect faulted Spartan for failing to remove
the cable from service and for failing to lock and tag out the cable before making a repair. These
shortcomings are addressed in Citations Nos. 7224652 and 7224650, respectively, and are
discussed more fully in this decision. Accordingly, we conclude that the judge erred in his
determination of reckless disregard when he expanded his analysis beyond the time when the
damage occurred to the cable by the continuous mining machine, and thus vacate his finding.
The judge determined that no more than a moderate degree of negligence is associated
with the failure to protect the cable before the damage occurred. 29 FMSHRC at 479. Likewise,
we conclude that the record demonstrates that the degree of negligence for the violation is
moderate. Smith testified that his evaluation of moderate negligence was based on the fact that
Sada was standing near the continuous miner and gave the directive for the machine to be moved
whereby the machine then smashed into the cable. Tr. 173-74. Cf Virginia Slate Co., 24
FMSHRC 507, 513 (June 2002) (holding that involvement of supervisor who is held to a high
standard of care is important to the unwarrantable failure analysis). However, the inspector
determined that the foreman's action was not highly aggravated because his view was partially
obscured. Tr. 174-76. Additionally, the company had a policy to protect cables, which in this
case did not protect the cable in question. Tr. 160-61. Based on these factors, the Secretary
found that the violation was a result of moderate negligence. Gov't Ex. 4. Similarly, we
conclude that the record as a whole demonstrates that Spartan's violation of section 75.606
stemmed from moderate negligence. American Mine Srvcs. Inc., 15 FMSHRC 1830, 1833-34
(Sept. 1993) (holding that no need to remand exists when only one conclusion possible); Walker
Stone Co., 19 FMSHRC 48, 53 (Jan. 1997) (same), ajf'd on other grounds, 156 F.3d 1076 (10th
Cir. 1998).

11

Citation No. 722465 l provides in pertinent part:
The ... trailing cable that provides ... powerto the ... left
continuous mining machine ... was not protected to prevent
damage by mobile equipment. When the mining machine ... was
trammed forward about 21 inches, the cutter head smashed the
cable. This forced energized conductors from two phases to come
into contact, creating a short circuit that caused a loss of electrical
power to the entire mine. This violation is a contributing factor to
the fatal accident which occurred on February 5, 2004 ....
30 FMSHRC 708

B.

Citation No. 7224650- Failure to Lock and Tag Out 12
1.

Violation and S&S

Spartan stipulated that the trailing cable's cathead was connected to the power center and
not locked and tagged out at the time McNeely was performing repairs. Consequently, the judge
found a violation of section 75.511. 29 FMSHRC at 482. Spartan does not dispute the violation
on appeal. Accordingly, we affirm the violation of section 75.511 for failing to lock arid tag out
before performing electrical repairs.
The judge also found that the violation was properly designated as S&S in that it was
reasonably likely that the failure to lock out a damaged cable prior to performing repairs would
result in a fatal electrocution. Id. at 483. He determined that the gravity was severe. Spartan
does not take issue with these findings on review. Accordingly, we affirm the determinations
that the violation of section 75 .511 was S&S and that the gravity of the violation was severe.
2.

Negligence

Spartan asserts that the judge's finding of high negligence was incorrect because he failed
to consider McNeely's misconduct in determining the degree of Spartan's negligence and he
incorrectly imputed Sada's conduct to Spartan. Sp. Br. at 25-27; Sp. Reply Br. at 26-28. The
Secretary counters that the judge's finding of high negligence is supported by the record. Sec'y
Br. at 29-32. She asserts that in reaching that negligence determination, the judge properly relied
on Foreman Sada's failure to supervise his crew. Id. at 30.
Judge Feldman concluded that there was negligence both directly attributable to Spartan
and also that McNeely's negligence was imputable to Spartan. 29 FMSHRC at 483. With regard
to Spartan's direct negligence, the judge found that Sada knew that the continuous miner had lost
power the instant that the ripper head contacted the trailing cable, and that the trailing cable had
not been locked out at the power center even though it had been run over by the miner. Id. The
judge found that Sada had reason to know that the cable was damaged, and that his failure to
respond to this potential hazard constitutes a disregard that is directly attributable to Spartan. Id.
The judge further found that Sada's mistaken belief that the cable was undamaged is not a
mitigating circumstance because it was brought about by Spartan's failure to follow its own
safety procedures, which would have confirmed the defective condition of the cable. Id.
When reviewing an administrative law judge's factual determinations, the Commission is
bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh

12

As noted previously, Commissioner Young joins Chairman Duffy in his separate
opinion on this issue. See slip op. at 7 n.10.
·
30 FMSHRC 709

Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)). In reviewing the whole record, an appellate tribunal must consider
anything in the record that "fairly detracts" from the weight of the evidence that supports a
challenged finding. Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).
After reviewing the record, we conclude that the judge's findings regarding Sada's
responsibility for the section 75.511 violation are supported by substantial evidence, and that the
judge did not err in determining that the violation was directly attributable to Spartan's own
negligence.
With regard to imputing McNeely's negligence to Spartan, in Cougar Coal Co., 25
FMSHRC 513, 519 (Sept. 2003), the Commission reiterated that an operator may be held
responsible for the negligent act of a rank-and-file miner based on its own conduct. As the
Commission has stated, "[W]here a rank-and-file employee has violated the Act, the operator's
supervision, training and disciplining of the employees must be examined to determine if the
operator has taken reasonable steps to prevent the rank-and-file miner's violative conduct."
Whayne Supply Co., 19 FMSHRC 447, 452-53 (Mar. 1997) (quoting Southern Ohio Coal Co., 4
FMSHRC 1459, 1464 (Aug. 1982) (emphasis omitted)). Similarly, the Commission stated in
A.H. Smith Stone Co. that:
[T]he fact that a violation was committed by a non-supervisory
employee does not necessarily shield an operator from being
deemed negligent. In this type of case, we look to such
considerations as the foreseeability of the miner's conduct, the
risks involved, and the operator's supervising, training, and
disciplining of its employees to prevent violations of the standard
m issue.
5 FMSHRC 13, 15 (Jan. 1983) (citation omitted).
The record reveals that McNeely, Hatfield, and Collins were working on the cable
without any supervision by Foreman Sada. Under the circumstances of this case, where a cable
had been smashed, power to the continuous miner had simultaneously gone out, and there was no
mine ventilation, Spartan should have ensured that proper lock-out procedures were being
followed. This is particularly true because Sada was aware of an earlier incident where McNeely
neglected to lock and tag out equipment. This should have put Sada on notice that additional
care was necessary With regard to supervising McNeely' s lock out procedures. In A.H. Smith, the
Commission concluded that the operator was negligent in discharging its duty of care when it
was foreseeable that an employee "might" engage in the violative conduct involving a highly
dangerous instrumentality. 5 FMSHRC at 15-16.
By contrast, in Cougar Coal, 25 FMSHRC at 519~ the Commission declined to hold the
operator responsible for a miner's negligence, where the supervisor expressly prohibited the

30 FMSHRC 710

miner on two separate occasions from engaging in the violative conduct and the rank-and-file
miner had never disobeyed a supervisory order. fu the instant case, Sada never expressly told
McNeely, Hatfield, or Collins.not to work on the cable. He also did not order the cable locked
and tagged out when the cable had been smashed by the continuous miner and when he saw
Hatfield with the cable across his knee. The miners were working under a very stressful
condition of no mine ventilation, which called for a higher duty of care on the part of Spartan.
As the judge found, Spartan cannot escape the imputation of negligence of rank-and-file
personnel by asserting that Sada was unaware of the actions of its crew. 29 FMSHRC at 477,
483. The fact that Sada did not know that McNeely and Hatfield were repairing the cable is an
aggravating factor which supports a showing of highly negligent supervision on the part of Sada.
Accordingly, we conclude that the judge's imputation of negligence to Spartan is
supported by substantial evidence. Therefore, we affirm the judge's finding of high negligence
for the lock-and-tag-out violation.
C.

Citation No. 7224652 - Failure to Remove Unsafe Equipment from Service
1.

Violation

Spartan asserts that the judge's finding of violation of section 75.1725(a) is erroneous
because the cable was not unsafe as it tripped the power to the continuous miner causing it to
become inoperable. PDR at 16. It also asserts that Foreman Sada did not foresee that McNeely
would repair the cable without locking and tagging it out and therefore he did not consider the
cable unsafe. Sp. Reply Br. at 17-19. The Secretary responds that the judge properly found a
violation. Sec'y Br. at 33. She characterizes Spartan's assertion that the cable was not unsafe as
specious because the circuit breaker could be re-closed and the cable would become a danger: Id.
at 34-35.
Under section 75.l 725(a), in deciding whether machinery or equipment is in an unsafe
operating condition, the alleged violative condition is measured against the standard of whether a
reasonably prudent person familiar with the factual circumstances surrounding the allegedly
hazardous condition, including any facts peculiar to the mining industry, would recognize a
hazard warranting corrective action within the purview of the applicable regulation. Alabama
By-Prods. Corp., 4 FMSHRC 2128, 2129 (Dec. 1982). The standard imposes two duties upon an
operator: (1) to maintain machinery and equipment in safe operating condition, and (2) to
remove unsafe equipment from service; Derogation of either duty violates the regtilation. 4
FMSHRC at 2130. The Commission requires that the unsafe equipment be removed from
service immediately. Cypros Plateau Mining Corp., 16 FMSHRC 1604, 1607 (Aug. 1994).
We reject Spartan's argument that the cable was not unsafe at the time of the violation
because it was not powered. The evidence overwhelmingly shows that when normal conditions
were restored, the cable presented a safety hazard to miners, highlighting the grave danger from
damaged trailing cables that are not immediately removed from service. The inspector testified
30 FMSHRC 711

that the damaged cable posed serious safety risks to miners. Tr. 157, 172-73. Spartan's own
policy also recognized the danger of damaged cables. Tr. 657:-58. Spartan Superintendent Neace
testified that it was the mine's policy, if a cable was run over, to remove the cable from service
and check it for damage, and if damaged, to repair it. This is consistent with standard industry
practice. Tr. 703. Moreover, the legislative history of the Coal Act discussed the danger of mine
fires and electrocution that damaged cables pose in mines. Coal Act Legis. History, at 197.
At the hearing, Foreman Sada testified that he did not think that the cable was damaged
and therefore did not consider it a danger. The judge, however, did not find his testimony
credible. 29 FMSHRC at 479-80. We hold that substantial evidence supports the judge's
credibility determination. The Commission has recognized that, because the judge has an
opportunity to hear the testimony and view the witnesses, he or she is ordinarily in the best
position to make a credibility determination. Virginia Slate, 24 FMSHRC at 512 (citations
omitted). Accordingly, the judge's credibility determinations, discounting the testimony of Sada
and Hatfield, are entitled to great weight and may not be overturned lightly. Farmer v. Island
Creek Coal Co., 14 FMSHRC 1537, 1541(Sept.1992).
Sada was standing in close proximity to the continuous miner when he observed the
instantaneous loss of power when the ripper head of a multi-ton piece of equipment struck the
cable. Tr. 550, 557, 561. Both Sada and Hatfield conceded that they initially believed the loss of
power was caused by the damaged cable. Tr. 511-13, 554, 562, 563-64. The record also reveals
that Sada saw that miners needed a scoop to remove the cable that was trapped under the multiton continuous miner. Tr. 208-09.
MSHA Electrical Engineer Smith and Inspector James Humphrey both testified that Sada,
as foreman, should have known that when the mining machine hit the cable and power was
subsequently lost, the cable was no longer functioning and should have been taken out of service,
tested and repaired before being put to use again, or prior to closing the breaker. Tr. 207-10,
306-16, 462, .469. Inspector Humphrey testified that every time a cable is run over, it creates an
unsafe condition, even if the jacket does not appear to be damaged. Tr. 464-65. The impact can
create small pinhole openings where persons can receive an electrical shock even if the circuit
breaker is not tripped. Tr. 464-65. Electrical Engineer Smith testified that during his
investigation, many miners knew that the cable had been damaged and McNeely had overheard it
from multiple people who were underground that day. Tr. 245, 329-30, 340.
Spartan's own expert, Keith Hainer, Director of Maintenance at Massey Coal Services,
testified that if a trailing cable has been run over, that cable should be tested to see if there is any
internal damage. Tr. 661, 665, 721. He further testified that it would have been prudent to
examine the cable for problems as there was a concurrent power outage. Tr. 721. Spartan's
expert stated that it would have been obvious and significant that there might have been a
problem with the cable when it was run over by the ripper head. Tr. 738-39. We note that there
was testimony that continuous miner operator Hatfield informed Sada that the cable jacket did
not appear to be damaged. Tr. 528. However, Hatfield is not an electrician. On balance, the

30 FMSHRC 712

weight of the evidence strongly supports the judge's determination that a reasonably prudent
person would have recognized that the cable posed a hazard requiring corrective action.
We are not persuaded by Spartan's assertion that McNeely's act was unforeseeable and
that, under section 75.1725, unforeseeable acts do not necessitate removal from service. Sp.
Reply Br.· at 18-19 .. The record revealed that approximately a week prior, Sada counseled
McNeely for repairing without locking and tagging out. Tr. 223, 250. Additionally, the cable
posed a danger to any miner underground, not just to the electrician, and Sada saw Hatfield
sitting with the cable across his knee. Tr. 581. Therefore, we conclude that a reasonably prudent
foreman would have recognized that the damaged cable constituted a hazard warranting
corrective action as required under Alabama By-Prods., 4 FMSHRC at 2129.
The second requirement of section 75.l 725(a) requires removal from service. Inspector
Smith testified that after the cable was smashed, a "prudent" foreman would require that the
piece of equipment be removed from service to be troubleshot, tested, and repaired prior to being
placed back in service. Tr. 181. The inspector testified that placing equipment out of service is a
management decision and that the equipment is labeled out of service and the condition is
entered in the books on the surface. Tr. 210-11, 216. A management decision is then needed to
place the equipment back in service. Tr. 218. It is undisputed that neither Sada nor other Spartan
management officials took any steps to remove the cable from service. Accordingly, the
damaged cable posed a danger and should have been removed from service. Because it was not,
we affirm the judge's finding of violation of section 75. l 725(a).
2.

S&S and Unwarrantable Failure 13

As to the S&S determination, Spartan reiterates its assertions that the cable was not
unsafe primarily because it was de-energized, and it was not foreseeable that McNeely would
make an electrical repair without locking and tagging out. Sp. Br. at 17-18; It asserts that the
violation was also not a result of unwarrantable failure because even if Sada knew that the cable
was damaged, which Spartan disputes, Sada had no reason to know that it would pose a danger.
Sp. Reply Br. at 20. The-secretary maintains that the violation of section 75.1725(a) was
properly determined to be S&S because failure to take the cable out of service made it reasonably
likely that the continuous mining machine would be energized and that the damaged cable would
seriously injure miners through electrical shock or fire, as demonstrated by this case. Sec'y Br. at
36. She also submits that the judge correctly concluded that the violation was the result of
unwarrantable failure. Id. at 36-38. The Secretary asserts that the violation was obvious, that it
was extremely dangerous, that a supervisor was involved in the violative conduct and knew or
should have known about the danger, and that the operator did nothing to abate the violative
condition. Id.

13

Commissioner Young joins Chairman Duffy, writing separately on the issue of the
degree of the operator's negligence. See slip op. at 7 n.10.
30 FMSHRC 713

A.s we held above, the fact that the cable was de-energized did not eliminate the
significant danger it posed to miners. The cable remained in service, and when power was
restored, miners were exposed to a severe electrical hazard. Tr. 157, 172-73; Coal Act Legi,s.
History, at 197. The record also refutes Spartan's contention that the cable did not present a
serious hazard to all miners on the section. The record reveals that the cable that had been run
over by a continuous miner posed a danger to all miners, not just to McNeely. As we have
already discussed herein, MSHA Inspector Humphrey testified that even if power was not lost,
the impact from the cutting head can create small pinhole openings in the cable where persons
can receive an electrical shock. Tr. 465-66. Sada testified that he observed Hatfield with the
cable at issue across his knee just minutes before power was restored. Tr. 581. Accordingly, we
affirm the judge's determination that failure to remove the cable from service was reasonably
likely to result in a serious injury and, as such, was properly designated as S&S. 29 FMSHRC at
485.
Turning to the issue of unwarrantable failure, the unwarrantable failure terminology is
taken from section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more serious conduct by
an operator in connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec.
1987), the Commission determined that unwarrantable failure is aggravated conduct constituting
more than ordinary negligence. Id. at 2001. Unwarrantable failure is characterized by such
conduct as "reckless disregard," "intentional misconduct," "indifference," or a "serious lack of
reasonable care." Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb.
1991); see also Buck Creek, 52 F.3d at 136 (approving Commission's unwarrantable failure test).
The Commission has recognized that whether conduct is "aggravated" in the context of
unwarrantable failure is determined by considering the facts and circumstances of each case to
determine if any aggravating or mitigating circumstances exist. Aggravating factors include the
length of time that the violation has existed, the extent of the violative condition, whether the
operator has been placed on notice that greater efforts were necessary for compliance, the
operator's efforts in abating the violative condition, whether the violation was obvious or posed a
high degree of danger, and the operator's knowledge of the existence of the violation. See
Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) ("Consof'); Cyprus Emerald Res.
Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir.
1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16
FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261(Aug.1992);
BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10
FMSHRC 705, 709 (June 1988). All of the relevant facts and circumstances of each case must
be examined to determine if an actor's conduct is aggravated, or whether mitigating
circumstances exist. Consol, 22 FMSHRC at 353.

In determining that the failure to remove the cable from service was aggravated conduct,
the judge pointed to the undisputed fact that Foreman Sada knew that the cable was struck by the
ripper head and that power was simultaneously lost. Hence, the violative condition was known
and obvious. 29 FMSHRC at 484-85. The damaged cable presented a condition of high danger
to miners. See Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129 (July 1992) (finding
30 FMSHRC 714

violation to be aggravated and unwarrantable based upon "common knowledge that power lines
are hazardous, and ... that precautions are required when working near power lines with heavy
equipment"). Indeed, Spartan recognizes this danger by requiring all potentially damaged cables
to be removed from service and to be tested and repaired. Tr. 657-58. Despite this knowledge
and Spartan's own policy, Foreman Sada did not take any steps to have the cable removed from
service. As Electrical Engineer Smith testified, Sada had multiple opportunities to have the cable
removed from service - once when he was present at the moment of impact and spoke to Hatfield
about the condition of the cable, and a second time, when he returned to the left continuous
miner and saw the miners trying to free the cable with the scoop. Tr. 243-44, 576-77, 579-80.
At this time, he observed Hatfield with the cable across his knee. Tr. 581. On both of these
occasions, Sada should have directed that the cable be taken out of service for trouble-shooting,
testing, and repair. The foreman's inaction is further aggravated because rather than taking the
cable out of service when he was aware that miners had been working on it just minutes earlier,
Sada energized the cable, an action directly contrary to what the regulation requires. We
emphasize that Sada as a foreman is held to a high standard of care. Virgi.nia Slate, 24 FMSHRC
at 513 (holding that the involvement of a supervisor in the violation is an important factor iii an
unwarrantable failure determination because supervisors are held to a high standard of care).
We reject Spartan's argument that, because Sada did not know that the cable was
damaged, the failure to remove it from service was not unwarrantable failure. As discussed
previously, the judge expressly discredited Sada's testimony that he did not believe the cable was
damaged. 29 FMSHRC at 480. We hold that there is no basis to overturn that credibility
determination. Farmer, 14 FMSHRC at 1541. Additionally, even if Sada did not believe that the
cable was damaged, the fact that the multi-ton continuous miner ran over the cable is
indisputably cause for a prudent foreman to have the cable removed from service and tested. See
Tr. 721 (testimony of Spartan's expert, Keith Hainer). We find equally unpersuasive Spartan's ·
contention that a finding of unwarrantable failure is not justified because Sada had no reason to
believe that McNeely would be undertaking repairs on the cable. Although the record showed
that Sada was unaware that McNeely was repairing the cable, Sada was well aware that other
miners were in contact with the cable as they were trying to free the cable and, the last time he
observed the cable, it wa.S on the knee ofHatfield. Given these circumstances, it is quite
foreseeable that a miner could come into contact with the cable once Sada energized it.
Accordingly, we uphold the judge's finding that the violation of section 75. I 725(a) was a result
of unwarrantable failure.
3.

Duplication14

Spartan maintains that the failure to lock out citation, No. 7224650, and the failure to
remove from service citation, No. 7224652, punish it twice for the same actions. PDR at 19. It
asserts that the judge erred when he ruled that the two citations were not duplicative. Id. Spartan

14

Commissioner Young joins Chairman Duffy in his separate opinion on this issue. See
slip op. at 7 n.10.
30 FMSHRC 715

contends that the crux of MSHA's case in both citations is the failure to lock and tag out, which
is the most practical means to remove equipment from service. Id. at 20; Sp. Reply Br. at 19.
The Secretary responds that the two citations at issue are not duplicative as the violations involve
separate and distinct legal duties. Sec'y Br. at 38-40.
The Commission has held that citations are not duplicative as long as the standards
involved impose separate and distinct duties on an operator. Western Fuels-Utah, Inc., 19
FMSHRC 994, 1003-04 (June 1997) (citing Cyprus Tonopah Mining Corp., 15 FMSHRC 367,
378 (Mar. 1993); Southern Ohio, 4 FMSHRC at 1462-63; El Paso Rock Quarries, Inc., 3
FMSHRC 35, 40 (Jan. 1981)). The record reveals that the responsibilities under sections 75.511
and 75.l 725(a) were different. The section 75.511 standard only arises when electrical repairs
are undertaken, and its implementation is, in the first instance, in the hands of the electrician.
The section 75.l 725(a) regulation is broader, applying to all machinery and equipment which
becomes unsafe, and is exclusively in the hands of management. Tr. 254-55. It incorporates a
management decision to remove equipment from service, and a management decision to place it
back into service. 15 Tr. 217-18. Moreover, the two regulations do not have identical purposes, as
the lock-and-tag-out standard appears designed to protect the electrician actually repairing the
equipment, while the removal from service requirement would protect anyone in the mine who
might otherwise attempt to use the equipment not knowing it was unsafe.
Electrical Engineer Smith testified that under the "removal from service" standard,
management should have removed the cable from service for troubleshooting, testing, and repair,
prior to placing it back in service. Tr. 158, 188-89, 207. He clarified that removal from service
did not mean that the cable had to be immediately repaired. Tr. 210-16. Smith also explained
that locking and tagging out alone does not constitute placing equipment out-of-service, because
to satisfy the requirements of section 75. l 725(a), the equipment must be labeled out of service
and be listed on electrical exam records as ''out-of-service." Tr. 216-17.

As Smith further testified, the two violations occurred at different points in time. Tr.
254-55. The removal from service violation (section 75.l 725(a)) occurred at the left continuous
miner when the cable was smashed. Id.; see Cyprus Plateau, 16FMSHRC at 1607 (holding that
unsafe equipment must be removed from service immediately). However, the lock out violation
(section 75.511) occurred a number of minutes later, when McNeely began working to repair the
cable without first locking and tagging it out at the power center. Tr. 254-55.
We reject Spartan's contention that the crux of both of the violations was the failure to
lock and tag out. The citations at issue allege distinct shortcomings on the part of Spartan.
Citation No. 7224650 alleged that "[t]he section electrician and the continuous mining machine

15

Because the requirements of section 75.l 725(a) involve management responsibilities,
the negligence involved in a violation of that standard is not mitigated by the ''unforeseen and
idiosyncratic conduct of a rank and file miner," contrary to the suggestion of our colleagues. Slip
op. at 29, 32.
30 FMSHRC 716

operator performed electrical work on a distribution circuit while the disconnecting device was
not locked out nor suitably tagged." Gov't Ex. 6. Citation No. 7224652 alleged that:
The operator, after witnessing the creation of an unsafe condition
on a piece ofmobile equipment, failed to cause the equipment to
be immediately removed from service. When the ... left
continuous ming machine ... trammed onto its ...trailing cable,
the section foreman was present and knew that the cable was
damaged. He also witnessed the mining machine losing power
when this occurred. Afterwards, the section foreman closed the
circuit breaker, thereby energizing the trailing cable, without first:
(A) causing the cable plug to be immediately disconnected from its
receptacle and (B) instructing the section electrician to do the
necessary troubleshooting, testing, and repair work on the cable to
restore it to a safe condition.
Gov't Ex. 5.
Thus, separate and distinct from the section 75.511 violation, section 75.1725(a) required
Spartan's management to remove the trailing cable from service and ensure that it was not
brought back into service until it was certified as safe. However, by closing the circuit breaker,
Foreman Sada not only failed to take unsafe equipment out of service, he also negligently put
unsafe equipment into service, without testing it, thereby causing McNeely's death. The
distinctions between the violations are clearly stated in the two MSHA citations. Gov't Exs. 5, 6.
We conclude that the standards impose separate and distinct duties on Spartan. Section
75. l 725(a) requires that unsafe equipment be immediately removed from service. Not taking the
continuous mining machine out of service represented a violation of omission. In contrast,
section 75.511 requires that before electrical work is performed, the equipment must be locked
and tagged out. Section 75.511 was violated in this case only upon McNeely's commencement
of the electrical work on the cable. By performing electrical work without locking and tagging
out, Spartan committed a violation of commission. The Commission has held that a violation of
omission and a violation of commission are not duplicative. Dynatec Mining Corp., 23
FMSHRC 4, 20 n.14 (Jan. 2001); Southern Ohio, 4 FMSHRC at 1463. Here, Spartan failed in its
affirmative duty to remove unsafe equipment from service, and then compounded the damage by
undertaking electrical work without locking and tagging out.
Our colleagues rely on Western Fuels to support two propositions. They assert that when

a duty to comply with the requirements of one regulation may be "subsumed" in the duty to
comply with the requirements of another, only one regulation should be cited. Slip op. at 32,
citing 19 FMSHRC at 1004. They also state that Western Fuels stands for the concept that if the
method of abatement for two citations is the same, the citations are duplicative. Slip op. at 3031, citing 19 FMSHRC at 1003-05. They are correct on the first point, but the analysis does not

30 FMSHRC 717

apply to the facts of this case. We believe that our colleagues are mistaken regarding their
second point.

As to subsuming one regulation in another, Western Fuels involved one regulation
imposing a broad obligation to install dry powder chemical systems that will protect the
components of a conveyor belt system most susceptible to fires (section 75.11 Ol-14(a)), and
another, more specific, regulation pertaining to the numerical sufficiency of nozzles and
reservoirs of such dry powder chemical systems (section 75.1101-15(d)). 19 FMSHRC at 1004.
Jn finding the citations duplicative, the Commission held,
Implicit in the duty to install a self-contained dry powder chemical
system that protects the specified components of the conveyor belt is the
duty to install a sufficient number of nozzles and reservoirs so that the
chemical substance is effectively disbursed to those components.
Because the duty to install a sufficient number of reservoirs is subsumed
in the duty to install a dry powder chemical system that adequately protects
the specified components, every violation of section 75.1101-15(d) will
inexorably constitute a violation of section 75.l 101-14(a).

Id. Thus, the Commission found that a violation of section 75.l101-15(d) could not be
committed without also violating section 75.l 101-14(a), and hence a violation of the latter was
duplicative of a violation of the former.

In the present case, however, it is quite possible for a mine operator to violate section
75.511 without also violating section 75. l 725(a), and vice versa. An electrician must lock and
tag out prior to performing routine electrical maintenance work. If the electrician fails to lock
and tag out the equipment before performing routine work, it is a violation of section 75.511.
But if the maintenance work is routine, the equipment is not "in unsafe condition," and need not
be removed from service under section 75.l 725(a). Thus, a violation of section 75.511 can be
committed without violating section 75.1725(a). Hence, section 75.511 is not subsumed in
section 75.l 725(a), and Western Fuels is factually distinguishable.
Second, our colleagues assert that Westem Fuels stands for the proposition that if the
method of abatement of citations is the same, the citations are duplicative. However, the
Commission never focused on abatement in its analysis. 19 FMSHRC at 1003-1005. Rather, it
emphasized more than once that standards are not duplicative when the initial conduct required
by each regulation involved different actions. Id. Thus, Western Fuels does not stand for the
proposition asserted by our colleagues.
Furthermore, in Western Fuels, the Commission asked whether MSHA was citing the
operator on the basis of more than one specific act or omission. Id. at 1004 n.12. It noted that if
MSHA had presented evidence of additional deficiencies that violated one of the regulations
instead of relying on the identical evidence used to support the other, it would not have found
them duplicative. Id.
30 FMSHRC 718

Here, the Secretary presented different evidence to prove that Spartan violated each of the
regulations at issue. In particular, the citation for the section 75.511 violation alleged that the
miners "performed electrical work" while a disconnecting device was not locked or tagged out.
Gov't Ex. 6. By contrast, the duty to refrain from performing electrical work simply does not
come into play in her charge that 75.1725(a) was violated. Gov't Ex. 5. Likewise, the citation
for the section 75.l 725(a) violation centered on Foreman Sada's closing the circuit breaker,
thereby energizing the trailing cable, without making sure that the necessary troubleshooting,
testing and repair work had been performed. Id. Thus, this case is more similar to Cyprus
Tonopah, in which the Commission emphasized that, although the operators' violations "may
have emanated from the same events, the citations are not duplicative because the two standards
impose separate and distinct duties upon an operator." 15 FMSHRC at 378.
Accordingly, we conclude that the violations are not duplicative and determine that both
violations should be affirmed.
D.

Order No. 7228963 -Failure to Withdraw Miners From Working Section

Spartan contends that the judge erred in finding unwarrantable failure with respect to the
section 7 5.313(a){3) violation because the record did not show reckless disregard, indifference,
or intentional misconduct. Sp. Reply Br. at 23-25. It asserts that Sada instructed his crew that
they had to leave the mine should power not be restored in 15 minutes and that, from this, they
understood they had to withdraw from the working sections. Sp. Br. at 27. Spartan contends that
all except Hatfield, McNeely, and Collins ceased to work and moved off the working section and
there is no evidence that Sada knew that McNeely and Hatfield were notamong those miners
gathering and preparing to leave the mine. PDR at 28. The Secretary contends that the judge ·
correctly found that the section 75.313(a) violation was a result of unwarrantable failure because
Sada's failure to inform all miners to leave the section immediately was an egregious disregard
for safety procedures. Sec'y Br. at 43-45. She asserts that Sada's silence in light of his crew's
actions could only be seen by them as tacit approval of their efforts to repair the cable when they
should have been withdrawing from the working section. Id. at 43. The Secretary emphasizes
that the loss of ventilation causes chaotic situations that breed poor judgment. Id. at 44.
Section 75.313(a){3) provides: "If a main mine fan stops while anyone is underground
and ventilating quantity provided by the fan is not maintained by a back-up fan
system- . . . [e]veryone shall be withdrawn from the working sections and areas where
mechanized mining equipment is being installed or removed." 30 C.F.R. § 75.313{a)(3).
The judge determined that the failure to withdraw miners from the working section was a
reckless disregard of proper safety procedures and a result of unwarrantable failure. 29
FMSHRC at 487. We are not persuaded by Spartan's assertion that Sada's instruction, that
everyone would have to leave the mine in 15 minutes, mitigates that determination of
unwarrantable failure. Inspector Humphrey testified that Sada's statement did not fulfill the
requirements of section 75.313(a)(3) because it "in no way ... resemble[d]" a command to

30FMSHRC 719

withdraw from the working section within that 15-minute period. Tr. 431-32. At best, Sada's
statement was vague and ambiguous.
When Sada returned to the left continuous miner after talking with Neace on the mine
phone, he "told McNeely that the power was off, the mine fan was down, and they would have to
go outside in 15 minutes." Jt. Ex. 2, ~ 10. Then Sada left to go to the other side of the section,
and McNeely went to the continuous mining machine. McNeely "told Hatfield and Collins that
he needed to check the damaged area of the trailing cable. He also informed them that the fan
was off and that they only had 15 minutes until they had to leave the section." Jt. Ex. 2, ~ 12
(emphasis added). Then "McNeely began cutting the outer jacket off the trailing cable at the
damaged area." Id. "McNeely and Hatfield continued repairing the cable as Collins pulled on
the waterline in an attempt to remove it from the ripper drum." Jt. Ex.2, if 14. Thus, it appears
that McNeely, Hatfield, and Collins all believed that the direction from Sada was to get the cable
repaired within 15 minutes and then leave the section if ventilation was not restored.
The inspector testified that a prudent foreman would have made it clear that all persons
were to withdraw to a safe location and would have then ensured that all miners on the crew were
at that safe location. Tr. 432. In contrast, Sada was in view of the miners at the continuous
miner and at no point did he instruct them to leave the working section. Tr. 434. Sada testified
that he never told the miners to leave the working section directly. Tr, 567. Nor did he take a
head count to see if all the men on his crew had withdrawn. Tr. 569. Eight miners remained on
the working section during the entire mine fan outage, leading us to conclude that they either did
not understand the instruction or they were not given one. Continuous miner operator Hatfield
stated that he never heard Sada's directive. Tr. 519. Accordingly, we conclude that Sada's
alleged instruction, which did not meet the requirements of the standard, does not undercut the
judge's unwarrantable failure determination.
We also reject Spartan's contention that the violation was not a result of unwarrantable
failure because Sada was unaware that McNeely was working on the cable. Although it appears
from the record that Sada did not know specifically that McNeely was working on the cable, this
is no defense because Sada was aware that other crew members were working on the cable. 29
FMSHRC at 480 n.6. The Joint Stipulations state that Sada witnessed the scoop being operated
and that Hatfield and the crew were working on the cable when Sada returned from talking on the
phone with Neace. Jt. Ex. 2, ~~ 10, 11. Instead of directing those miners to leave the working·
sectio~ Sada testified that he told the miners that they had to leave in 15 minutes if power was
not restored. Tr. 581-82. Under these conditions, Sada should have expressly told his crew to
stop working and withdraw. In Lion Mining Co., 19 FMSHRC 1774, 1778 (Nov. 1997), the
Commission found that when a foreman witnessed a violation yet did not immediately stop it, the
operator's violation was a result of unwarrantable failure. Similarly, Sada's failure to withdraw
the miners supports a finding of unwarrantable failure.
We are likewise unconvinced by Spartan' s contention that there. is no time limit in section
75.313(a)(3) and therefore that Sada's failure to require the men to withdraw immediately cannot
be considered a result of unwarrantable failure. Sp. Reply Br. at 24-25. We note that section
30 FMSHRC 720

75.313, entitled "Main mine fan stoppage with persons underground," contains procedures that
must be followed when a mine fan goes out. The standard has two applicable times that trigger
different requirements: one if ventilation is restored within 15 minutes and, the second, if it is not
restored within that 15 minute period. 30 C.F~R.§ 75.313(b) & (c). 16
The Commission adheres to the principle that "[t]he Secretary's regulations should be
interpreted to give comprehensive, harmonious meaning to all provisions." New Warwick
Mining Co., 18 FMSHRC 1365, 1368 (Aug. 1996). Construing section 75.313 in its entirety, it
becomes clear that when a main mine fan stops, everyone should be withdrawn from a working
section as soon as reasonably possible and well within 15 minutes, because after 15 minutes of
fan stoppage, miners have to evacuate the entire mine. Miners must withdraw from the working
section within 15 minutes, or else there would be no reason to include the working section
withdrawal provision in the standard, because evacuation of the entire mine commences after 15
minutes of ventilation outage. See Daanen &Janssen, Inc., 20 FMSHRC 189, 194 (Mar. 1998)
(providing that effect must be given to every part of a regulation). Furthermore, subsection (b) of
the regulation requires a methane check ''before work is resumed" in the mine's "working
places," even ifthe fan is restarted within 15 minutes. 30 C.F.R. § 75.313(b). Logically, work
must have ceased in order to resume.
We hold that once a main mine fan stops, withdrawal from the working section must
commence immediately, subject to completion of those tasks reasonably necessary to avoid

16

30 C.F .R. § 75 .313 provides in part:
(a) If a main mine fan stops while anyone is underground and the
ventilating quantity provided by the fan is not maintained by a
back-up fan system( 1) Electrically powered equipment in each working section shall
be deenergized;
(2) Other mechanized equipment in each working section shall be
shut off; and
(3) Everyone shall be withdrawn from the working sections and
areas where mechanized mining equipment is being installed or
removed.
(b) If ventilation is restored within 15 minutes after a main mine
fan stops, certified persons shall examine for methane in the
working places and in other areas where methane is likely to
accumulate before work is res1lmed and before equipment is
energized or restarted in these areas.
(c) If ventilation is not restored within 15 minutes after a main
mine fan stops(1) Everyone shall be withdrawn from the mine ....
30 FMSHRC 721

leaving hazards in the mine. 17 This does not mean that miners should attempt to repair
equipment such as a continuous mining cable during this time, but rather that the cable should be
taken out of service so that it will not pose a danger to returning miners. Although Spartan
argues that the lack of precise time limits would mitigate unwarrantability if it had withdrawn all
miners within a reasonable time, we are not required to decide this issue because a significant
number of miners remained on the working section for the entire mine fan outage, and Spartan's
argument is thus unavailing.
We agree with the judge that a loss of ventilation in any mine can cause a "chaotic
situation that breeds poor judgment and a lack of due diligence if miners are not removed from
the working section." 29 FMSHRC at 486. As noted supra, the electrician was trying to quickly
repair the cable before the mine needed to be evacuated. Jt. Ex. 2, iM( 10, 12, 14. If withdrawal
procedures had been followed, he would not have been able to continue working on the cable and
this tragedy would have been averted. The heightened danger present in this case bolsters the
conclusion that this violation resulted from the operator's unwarrantable failure. Midwest
Material, 19 FMSHRC at 35 (holding that failure of foreman to exercise prudent care in a
condition of extreme danger supports unwarrantable failure determination).
Substantial evidence supports the judge's determination of aggravated conduct and
reckless disregard of proper safety procedures. 29 FMSHRC at 487. This violation involved a
supervisor, a person held to a higher standard of care, who was aware that his miners continued
working on the section after the mine fan went out, exposed to an obvious danger and serious
hazards. Id. at 485-87. We conclude that Spartan exhibited a serious lack of reasonable care
when it failed to ensure that all miners withdrew from the working section during the fan outage.
Rochester & Pittsburgh, 13 FMSHRC at 194. Accordingly, we affirm the judge's determination

17

Chairman Duffy asserts that the requirement that the miners withdraw from the
working section and assemble at the loading point did not arise until after Sada had "received
confirmation from the surface that the mine fan was out and then returned to the left section."
Slip op. at 35. However, the withdrawal requirement of section 75.313(a) is triggered when "a
main mine fan stops while anyone is underground" and there is no back-up fan. 30 C.F.R.
§ 75.313(a). Nowhere in the language of the regulation is it implied, much less stated, that the
withdrawal requirement only begins after a foreman receives confirmation from the surface of an
outage and then arrives back at the section where he had been working.
Furthermore, the record reflects that Sada knew the fan was off even without receiving
confirmation from the surface. Sada testified that when the fan shut down, he could feel the
absence of ventilation. Tr. 577-78. Consequently, Sada did not call Neace to receive
confirmation that the mine fan was out. Rather, he called him "[t]o see if the power was out
outside." Tr. 558; see also Tr. 563, 621. We thus reject this proposed qualification of the
withdrawal requirement under section 75.313(a), as it has no basis in the language of the
regulation, and was not needed to alert those underground that the mine fan had indeed stopped.
30 FMSHRC 722

that the section 7 5 .313(a)(3) violation was a result of unwarrantable failure arid reckless
disregard.
E.

Penalties

Spartan argues that in raising the penalties from the amounts that were proposed by the
Secretary, the judge erred by failing to discuss the required penalty criteria under section 11 O(i)
of the Mine Act, 30 U.S.C. § 820(i). Sp. Br. at31-32. It further asserts that the judge failed to
adequately justify his significant departure from the Secretary's penalties, and that the penalties
were unfair and excessive under the facts ofthe case. ·1d. at 30-31. The Secretary responds that
the judge did not abuse his discretion in assessing the penalties at issue. Sec'y Br. at 46. She
states that the judge specifically applied the penalty criteria and appropriately justified the bases
for his penalty determinations. Id. at 47-48.
Commission judges are accorded broad discretion in assessing civil penalties under the
Mine Act. Cantera Green, 22 FMSHRC 616, 620 (May 2000). Jn determining the amount of the
penalty, neither the judge nor the Commission shall be bound by a penalty recommended by the
Secretary. Sellersburg Stone Co., 5 FMSHRC 287, 291 (Mar. 1983), affd, 736 F.2d 1147 (7th
Cir. 1984). However, such discretion is not unbounded and must reflect proper consideration of
the penalty criteria set forth in section 11 O(i) and the deterrent purposes ofthe Act. 18 Cantera
Green, 22 FMSHRC at 620. Additionally, the Commission in Sellersburg, 5 FMSHRC at 293,
explained that "when ... it is determined that penalties are appropriate which substantially
diverge from those originally proposed, it behooves the Commission and its judges to provide a
sufficient explanation of the bases underlying the penalties assessed by the Commission." In
Cantera Green, the Commission clarified that "[w]hile the findings and explanations relating to a
penalty assessment do not have to be exhaustive, they must at least provide the Commission with
a basis for determining whether the judge complied with the requirement to consider and make
fmdings concerning the section 1 lO(i) penalty criteria." 22 FMSHRC at 621.

18

Section 11 O(i) provides in part:

In assessing civil monetary penalties, 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.
30 u.s.c. § 820(i).
30 FMSHRC 723

The judge generally discussed the civil penalty criteria with regard to all the violations at
issue. 29 FMSHRC at 477-78. He found that Spartan is a large mine operator and that the
imposition of the civil penalties would not impede Spartan's ongoing business operations. Id. at
478. The judge determined that the history of violations and Spartan's abatement efforts were
neutral factors in determining the appropriate penalty liability. Id. He then explained that the
two overarching material considerations for all penalties consisted of the magnitude of the
gravity and the degree of negligence. Id. We agree with the judge's reasoning. Although
Spartan broadly maintains that the judge did not discuss at length all six factors, Spartan itself
specifically takes issue· only with the two factors of negligence and gravity. Accordingly, we
affirm the judge's general discussion of the other four penalty factors as adequate to support the
penalty determinations. We now discuss the factors of negligence and gravity for each violation.
As to Citation No. 7224651, for the failure to protect the cable, we affirm the judge's
determination that the violation was S&S and that the gravity was extreme given that this
violation contributed to a fatal electrocution. Id. at 480-81. However, as discussed in our
opinion, we vacate the judge's negligence determination of reckless disregard as it rests on
Spartan's failure to protect the cable after it was already hit, which goes beyond the scope of
section 75.606. We have concluded herein that the record demonstrates that the violation was a
result of moderate negligence, which was the level of negligence originally proposed by the
Secretary. See also id. at 479. As we have affirmed all the other five penalty factors for this
assessment, we have determined that a remand of the penalty is not necessary. See Sellersburg, 5
FMSHRC at 293-94 (holding that remand for judge to make findings on discrete penalty factors
not necessary in the interest of judicial economy and would unnecessarily prolong the case). In
LJ's Corp., 14 FMSHRC 1278, 1280 (Aug. 1992), when the Commission reversed the judge, it
assessed the civil penalty that was proposed by the Secretary. So too, we determine that the
Secretary's proposed penalty appropriately reflects all the Mine Act section 11 O(i) criteria.
Accordingly, in this case, we reinstate the penalty assessment of $32,500, which was the original
amount proposed by the Secretary.

As to Citation No. 7224650, for the failure to lock and tag out, we reject Spartan's
contention that the judge was bound by the Secretary's assessment of the degree of negligence of
"moderate" contained in the citation. Sp. Reply Br. at 26. Spartan unpersuasively relies on
Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879-80 (June 1996) (finding that judge may not
designate a violation as S&S on his own initiative), to assert that the judge's alteration of the
citation was impermissible. However, Mechanicsville is distinguishable because modifying a
negligence determination, as the judge did here, is authorized by the Mine Act, whereas inserting
an S&S designation is not. 30 U.S.C. § 814(h).
By this decision, we have affirmed the judge's finding of high negligence for the failure to
lock and tag out. Spartan does not take issue with the judge's determination that the gravity of the
violation was severe. 29 FMSHRC at 482-83. It has long been established that the Commission
is not bound by the Secretary's penalty assessments and that the penalty to be assessed is a de
novo determination based on the six statutory criteria specified in section I lO(i) of the Act.
Sellersburg, 5 FMSHRC at 291. The judge adequately substantiated the need for the penalty
30 FMSHRC 724

increase due to the high levels of negligence and gravity. As a result, we hold that the judge did
not abuse his discretion, and we affirm the penalty of $50,000. 29 FMSHRC at 483.
As to Citation No. 7224652, for the failure to remove unsafe equipment from service, the
judge found that the violation was S&S and that the gravity was extreme as it contributed to the
electrocution fatality. Id. at 485. As discussed herein, these findings are supported by substantial
evidence, including credibility determinations. With respect to the level of negligence, we have
also affirmed the judge's findings that Spartan's conduct in failing to remove the cable from
service was aggravated and a result of unwarrantable failure. Given these holdings, we conclude
that the judge has not abused his discretion and has adequately substantiated the penalty increase
to $60,000. Id.
As to Order No. 7228963, for the failure to withdraw miners from the working section, we
have affirmed the judge's determination that the violation was a result of unwarrantable failure
and reckless disregard for the safety of miners. Additionally, we concur in the judge's finding that
permitting miners to continue working during a hazardous period caused by an interruption of
mine ventilation was an extremely grave and serious violation. Id. at 486-87. We reject Spartan's
contention that the judge failed to substantiate the reason for significantly raising the penalty. On
the contrary, the judge specifically discussed in detail his reasoning for increasing the penalty
from $3,700 to $30,000. Id. He stated:
Thus, although the violation in Order No. 7228963 has been
designated as non-S&S, greater weight must be accorded to the
material facts that reflect that the cited condition affects the entire
section's personnel, that is indicative of extreme gravity, and that is
attributable to unjustifiable and inexcusable conduct. ...
Ensuring the rapid and safe withdrawal of miners faced with
hazardous conditions is fundamental to mine safety.... [T]he grave
nature of the violation as well as the fatality that followed justify a
substantial penalty.
Id. at 487. The judge has adequately explained the bases for his decision to assess a higher
penalty than originally proposed. We held inLopke Quarries, Inc., 23 FMSHRC 705, 713 (July
2001), that a judge did not abuse his discretion by weighing the factors of negligence and gravity
more heavily than the other four statutory criteria. Similarly, we hold here that it was certainly
appropriate for the judge to raise the penalty significantly based on his findings of extreme gravity
and unwarrantable failure. 29 FMSHRC at 486-87. Accordingly, we hold that the judge was well
within his discretion in assessing a penalty of $30,000 for the section 75.313(a)(3) violation.

30 FMSHRC 725

ill.
Conclusion
For the foregoing reasons, with the exception of Citation No. 7224651, we affirm the
judge's decision in its entirety. As to Citation No. 7224651, we affirm the violation of section
75.606 and its S&S designation. However, we vacate the negligence finding and conclude that
the record demonstrates that the violation was a result of moderate negligence and, considering
the factors in section 1 lO(i) of the Mine Act, order the operator to pay a penalty of$32,500 for
this violation.

Q_ff ,f Cl---Robert f. Cohen, Jr., Commissioner

30 FMSHRC 726

t

Chairman Duffy, concurring in part and dissenting in part:
I concur with my colleagues in affirming the judge's finding of a violation of 30 C.F.R.
§ 75.606, relating to the protection of trailing cables, and in affirming the judge's finding of a
violation of30 C.F.R. § 75.313(a)(3),relating to the withdrawal of miners from a working section
during a mine fan outage. I further concur that with respect to the violation of section 75.606, the
judge impermissibly considered events that occurred after the trailing cable was damaged in order
to determine the level of negligence associated with the violation. Accordingly, I would vacate ·
the judge's finding of reckless disregard with respect to that violation and remand to the judge the
determination of an appropriate civil penalty in light of my colleagties' findings set forth at slip
op. 8-10, above.
As for the alleged violation of30 C.F.R. § 75.511, relating to locking and tagging out of
electrical equipment before repair work is performed, and the alleged violation of30 C.F.R.
§ 75.l 725(a), relating to the immediate removal from service of unsafe machinery or equipment, I
dissent from my colleagues' affirmance of the judge's finding that both standards were violated
and, therefore, properly cited. Under the particular circumstances of this case, one might conclude
that either of the standards - but not both - could appropriately have been cited. Upon further
review of the facts, and for the reasons more fully set forth below, I believe that section
75.1725(a) should have been cited, and that the charge that Spartan violated section 75.511 was
duplicative of the violation charged under section 75.l 725(a). Accordingly, I would vacate
Citation No. 7224650 relating to the failure to lock and tag out the trailing cable prior to initiating
reparrs.
Moreover, I dissent with respect to my colleagues' affirmance of certain negligence
findings arrived at by the judge. To be sure, negligence is present in each of the three violations
that I believe the judge correctly upheld. My conclusion, as further explained below, is that the
levels of negligence found by the judge are higher than the record can support. Most particularly,
the level of negligence attributed by the judge with respect to the violation of section 75.313(a)(3)
is not only unsupported by the evidence, it is clearly contradicted by the undisputed testimony of
the Secretary's own witness. Accordingly, I would therefore remand the issue of unwarrantable
failure and the appropriate civil penalty to be assessed for further consideration by the judge.
With respect to the violation of section 75.l 725(a), relating to the removal from service of
unsafe equipment, while I believe that the violation involves unforeseen and idiosyncratic conduct
of a rank-: and-file miner, such conduct does not mitigate the level of negligence to a degree
warranting remand to the judge for a reassessment of the civil penalty.
Lastly, it is important to place the events of the afternoon of February 5, 2004, in context,
both as to the chronology of their occurrence and the conditions in which they occurred. The
events that led to the death of Mr. McNeely took place over the space of 14 minutes during which
time there was considerable confusion as to what was happening. Except for the violation relating
to running into the trailing cable, the violations alleged to have directly or indirectly led to the

30 FMSHRC 727

fatality transpired over the space of about nine minutes and apparently took place in total darkness
save for the light from the miners' cap lamps and the battery-powered scoop.
Moreover, the Ruby Energy Mine is located in a fairly narrow coal seam with an average
roof height of just under four and a half feet (Tr. 550-51 ), about the height of a wall switch in a
typical home. Mr. Sada, who by his testimony is a large man (id.), stated that he had to
"duckwalk" back to the mine phone to call the surface and to move between the left and right
sections when he returned to tell the miners about the mine-wide power outage and to tell them
they might have to evacuate. Tr. SSO, 566-67. That labored travel to and fro did have an effect on
his ability to observe everything that was going on in the left section during the period in
question. 1 While these factors have no bearing on whether or not the violations should be upheld,
they do affect the level of negligence attributable to Mr. Sada, and, in turn, to Spartan. As the
judge noted at the hearing:
It's easy in hindsight to see things that weren't seen on the spur of
the moment. But my function is to look at it with hindsight and
see how the people should have acted - reacted without the
benefit of hindsight. But that's what the term the degrees of
negligence is about.
Tr. 774-75.
That said, I will proceed to each point upon which I disagree with my colleagues.
A.

Duplicative Citations2

Spartan was cited for a violation of section 75.511 for failure to lock and tag out before
engaging in repairs, and for a violation of section 75 .1725 for failure to immediately remove the
trailing cable from service. In my view, under the unique circumstances of this case, the citations
are duplicative under the Commission's holding in Western Fuels-Utah, Inc., 19 FMSHRC 994,
1003-05 (June 1997). I read the Commission's holding in Western Fuels as standing for the
proposition that if the method of abatement for dual citations is the same, the citations are

1

The distance between the continuous miner and the mine phone to the surface was 280
feet. Tr. 282-84. Thus, in the space of 14 minutes Mr. Sada crawled or duckwalked almost three
football fields in order to reach the mine phone, return to the left section to inform the miners of
the power outage, travel to the right section to apprise those miners of the problem, return to the
mine phone to await further instructions from the surface, and then travel to the power center
once power to the mine had been restored. I invite the reader to imagine doing the same while in
a crouched position and to do so in pitch black darkness. In my view, Mr. Sada's actions hardly
reflect the conduct of a disengaged supervisor.
2

Commissioner Young joins Chairman Duffy in section A of his opinion.
30 FMSHRC 728

duplicative. Id. That is the case here. Abatement for both citations was the disconnecting of the
trailing cable from the power source and the locking and tagging out of that cable. There was no
other practical way of abating the two violations. 3
The question then becomes what actions was Spartan required to take with respect to the
violation of section 75.1725 and the violation of section 75.511, and are those actions somehow
different? The short answer is, they were not. Both citations would have been abated by
disconnecting the cable and then locking and tagging it out.
The Secretary argues that there is a distinction between the two methods of abatement
because one standard (section 7 5.511) only requires the actions of a certified electrician, while the
other standard (section 75.1725) requires a decision by management. Oral Arg. Tr. 44. That
argument is not borne out by the facts. Mr. Sada testified without contradiction that the policy in
the Ruby Energy Mine was that a certified electrician was authorized to remove a trailing cable
from service. Tr. 585. It should also be noted that "management" does not act but through its
authorized agents or employees, which in this case was Mr. McNeely, who had authority to
remove the trailing cable. from service until such time it was determined that the cable was safe or
was in need of repair before being returned to service.
Moreover, in terms of strict chronology, the cable should have, at first, been removed from
service to allow for inspection, troubleshooting, and repair, as the inspector's citation states.
Gov't Ex. 5. Had that been done, the citation relating to the protocol for repairs would have been
superfluous and redundant. 4

3

MSHA's witness, Mr. Smith, testified that Spartan could have abated the violation of
section 75.1725 by disconnecting the trailing cable and wrapping it around the continuous miner.
Confronted with the impracticality of miners having to drag a 700-foot cable weighing over a
thousand pounds several hundred feet back to the continuous miner in a matter of minutes, Mr.
Smith was ultimately compelled to agree that locking and tagging out the cable was the most
practical means of abating the violation of section 75.1725. Tr. 356-59.
4

In attempting to distinguish Western Fuels from the present case, my colleagues allude
to instances where an operator could ''violate section 75.511 without also violating section
75.l 725(a), and vice versa." Slip op. at 20. However, the scenario they postulate is not the facts
in this case and hence, their distinction fails. Here, Spartan was not performing routine
maintenance work on the cable, and the record clearly establishes that McNeely could have taken
the steps to remove the damaged cable from service (Tr. 585), which, under the time constraints
in this case, would have included locking and tagging out the cable at the power center before
necessary troubleshooting, testing, and repair work could be performed. Thus, under the
circumstances in this case, the Secretary's citation of Spartan for both sections 7 5.511 and
75.1725(a) is duplicative.

30 FMSHRC 729

- The Secretary, the judge, and my colleagues make much of the fact that both citations
are valid because one (section 75.511) relates to a "violation of commission," while the other
relates to a "violation of omission." S. Br. at 39-40; 29 FMSHRC 465, 482 (June 2007) (ALJ);
slip op. at 19. That attempt to differentiate the two citations is unavailing. One could just as
easily say that McNeely's failure to lock and tag out the trailing cable before initiating repairs
was a "violation of omission" on a par with his failure to lock and tag the cable (thus removing
it from service) once he suspected it was damaged. Failure to disconnect, lock out and tag out
are essential elements of both offenses and, under the mine's own protocol, should have been
undertaken as the first steps of compliance with either standard. The safety purposes of both
standards were met and satisfied by the same compliance action regardless of whether the
underlying violations were of commission or omission, thus bringing this case within the
parameters of Western Fuels.
Moreover, in terms of the Commission's analysis in Western Fuels, when the duty to
comply with the requirements of one standard can be "subsumed" in the duty to comply with
the requirements of another standard, only one standard should be cited. 19 FMSHRC at 1004.
Here the requirements of section 75.511 are subsumed in the requirements of section 75.1725
so that the commission/omission dichotomy becomes a distinction without a difference.

B.

Negligence Associated With the Section 75.1725 Violation5

It is fundamental that the Mine Act is a strict liability statute so that violations
committed by miners, even those committed in contravention of the mine operator's workplace
rules and contrary to the miner's training, are attributable to the operator. The Commission has
also, held, however, that the level of operator negligence can be mitigated in a case where the
miner's conduct is unforeseen and idiosyncratic, and contrary to the operator's policies. See
Western Fuels-Utah, Inc., 10 FMSHRC 256, 260-61 (Mar. 1988); Asarco, Inc., 8 FMSHRC
1632, 1636 (Nov. 1986), ajf'd on other grounds, 868 F.2d 1195 (10th Cir. 1989).

In this instance, I believe that Mr. McNeeley's conduct falls within the scope of
unforeseen and idiosyncratic conduct. He was an experienced and certified mine electrician,
fully trained and retrained, and he violated a fundamental rule by failing to disconnect, lock,
and tag out the trailing cable.
As for the incident that occurred the week earlier, when Mr. Sada told Mr. McNeeley
not to do any electrical work without first locking and tagging out (slip op. at 15), I do not view
that as an indication that Mr. Sada should have been put on notice that Mr. McNeeley was an
unsafe worker. On the contrary, I view it as an admonishment that underscored the training
that Mr. McNeeley had received, and demonstrates vigilance on Mr. Sada's part.

5

Commissioner Young joins Chairman Duffy in section B of his opinion.
30 FMSHRC 730

Nevertheless, McNeeley's conduct does not, in my view, serve to fully mitigate
Spartan's negligence in this case. It was Mr. Sada's responsibility to make sure that Mr.
McNeeley had removed the cable from service if he, Sada, had any suspicion that the cable was
damaged. Accordingly, I believe Spartan's share of the negligence was more than moderate,
and I would not overrule the Judge's finding of unwarrantable failure. My disagreement with
the Judge on this issue is one of degree,
C.

Withdrawal of Miners

As to this issue, I find a fundamental error on the part of the judge that does not
contradict his conclusion that a violation occurred but seriously undermines his determination
that the violation was caused by Spartan's unwarrantable failure to comply with section
75.313(a)(3). At the close of the hearing, the judge directed the parties to address a number of
issues in their post-hearing briefs, and he summarized the evidence adduced at that point of
the trial. With respect to the violation ofsection 75.313(a)(3), the judge stated the following:

I don't think that there's even anything in the testimony that
indicates there was any communication by Mr. Sada or anybody
else in authority that the personnel should have been removed
from the working section. Mr. Sada repeatedly testified he told
them they'd have to go out in 15 minutes if the fan didn't come
on. But even Mr. Sada's testimony doesn't assert that he told
them to leave the working section.
Tr. 755.
That characterization of the testimony, however, was incorrect. In point of fact, Mr.
Sada testified without contradiction that he had instructed the miners in the left section to move
to the loading point during questioning by the judge himself:

6

Q.

Okay. Did you go and search out other miners ---

A.

I went to the left---.

Q.

--- to talk to them based on your conversation with Mr.
Neace?

A.

I went to the left side of the section and started going
across the faces, telling my people to come to the feeder. 6

Q.

Okay. So you just told them to come to the feeder?

The "feeder" and the "loading point" were at the same location. Tr. 427-28.

30 FMSHRC 731

A.

No, sir.

Q.

What did you tell them?

A.

I told them that the power and the fan was out outside,
and for everybody to come to the feeder. We had to start
evacuating in 1S minutes, or going outside. My exact
words was get your stuff, we got to go outside in 1S
minutes.

Q.

Okay. Did you tell them that they needed to immediately
come out outby the dumping point?

A.

No, sir. I probably didn't, no, sir. I didn't say immediately. I just
told them what I just told you.

Tr. 566-67.7
It is undisputed that the miners in the left section did not immediately move to the
loading point; rather, they stayed on the section. Consequently, a violation of the standard
occurred. Nevertheless, a reading of the judge's opinion reveals that his finding of
unwarrantable failure was based on his mistaken belief that Mr. Sada had not specifically
ordered the miners to leave the section and assemble at the loading point. 8 See 29 FMSHRC at
487.

Furthermore, Neace testified that the miners had been trained to remove themselves
from the working section whenever the main fan ceased operating so that Mr. Sada's

7

Sada later reasserted that point:

Q.

Okay. So at that point, as I understand your testimony, you
went over to talk to the right side?

A.

I gave a direction that everybody to come out to the feeder.
The power and the fan was off. I went to the right side
loading crew.

Tr. 581.
8

It should be noted that Mr. Sada was called as the Secretary's witness, not Spartan's.
Tr. 543. Accordingly, the Secretary must acknowledge and accept the thrust of Mr. Sada's
testimony on this issue.

30 FMSHRC 732

admonition to assemble at the loading point should have been obeyed. Tr. 637. Moreover, Mr.
Sada testified that he did see the lights from the miners' cap lamps coming toward him as he
waited by the mine phone, leading him to believe that they were obeying his order to move to
the feeder. Tr. 585. The evidence clearly establishes that Mr. Sada definitely ordered the
miners to evacuate the section. That they did not establishes a violation, but it does not
establish an unwarrantable failure violation.
Lastly, the requirement that the miners withdraw from the working section and
assemble at the loading point did not arise until after Sada received confirmation from the
surface that the mine fan was out and then returned to the left section. 9 Whatever Mr. Hatfield
and Mr. Collins were doing to free the trailing cable while Mr. Sada was traveling back and
forth between the left section and the mine phone would be permissible up to the point where
Mr. Sada advised them of the fan outage and the need for them to move to the loading point.
When Mr. Sada gave that order, moreover, Mr. McNeeley was nowhere near the cable
but was sitting on a personnel carrier on the section. Tr. 474; Gov't Ex. L At that point Mr.
Sada moved on to the right section to give the same notification to the miners working there.
Tr. 581. While Mr. Sada could have been more forceful in ordering the miners to the loading

9

This is borne out by the testimony of Mr. Humphrey, the head of the investigation and
author of the official MSHA report in this case:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.

Okay. And in fact, when Mr. Sada walked up to the left machine, they were just --- had
just bumped the ripper head; right, to get the cable free?
The scoop was operating inby the miner, yes, sir.
Right. And he had not yet told them that the fan was down; right?
That's unclear.
Well, didn'tyou find that he had to go back to the phone, talk to Mr. Neace?
Yes.
Find out that the fan was off? Do you recall that?
Yes. Uh-huh (yes).
And then he walked back over here as they're bumping the head free; correct?
Right. And he observed those people.
Right. So when they went and got the scoop and brought it up there and bumped the head,
he had not had a chance to tell them that the fan was off, had he?
He had a chance within seconds to tell them after getting there.

Tr. 435-37.
Whether Mr. Sada suspected the fan was down before it was confirmed by his phone call
to Mr. Neace on the surface is irrelevant in this case. The Secretary's chief investigator found
that the violation arose after Mr. Sada had phoned up to the surface and returned to the left
section, and that is the charge we are called upon to consider in this case.
30 FMSHRC 733

point, I do not consider that his actions can be characterized as having "allowed the section
electrician and several co-workers to perform electrical work on the trailing cable ... during
the power outage to the mine ventilation fan," as the citation alleges. Gov't Ex. 9.
Nevertheless, by assuming that the requirement to withdraw the miners from the working
section arose.immediately (when the cable was hit and power was interrupted) rather than
several minutes later when Mr. Sada received confirmation of the fan outage during his phone
call to the surface, the judge also concluded that Mr. Sada "stood by" and allowed the miners to
continue working rather than moving to the loading point. 10 29 FMSHRC at 487. So again, I
believe the judge's conclusions regarding the level of negligence are based on a
misapprehension of the sequence of events following the continuous miner running into the
trailing cable.
Accordingly, I would find a violation of the standard, but I would remand the
unwarrantable failure issue to allow the judge an opportunity to reconsider his holding in light
of Mr. Sada's uncontradicted testimony that he did, indeed, direct the miners to move to the .
loading point and in light of the fact that the requirement to withdraw arose only after
confirmation from the surface that the fan was out. I would also remand the matter of an
appropriate civil penalty upon reconsideration of the unwarrantable failure issue.

10

The evidence shows that Mr. Sada was not "standing by." He was on his way to the
mine phone to contact the surface and determine the extent of the power outage. Tr. 558, 584.

30 FMSHRC 734

Distribution:
Mark E. Heath, Esq.
Spilman, Thomas & Battle, PLLC
300 Kanawha Blvd. East
P.0.Box273
Charleston, WV 25321
Mark R. Malecki, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2226
Arlington, VA 22209-2296
Robin Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2296
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 735

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

August 29, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2007-892-E
v.
TWENTYMILECOALCOMPANY

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
BY THE COMMISSION:
This case is before the Commission on a referral of an emergency response plan dispute
by the Secretary of Labor pursuant to Commission Rule 24(a), 29 C.F.R § 2700.24(a), and
section 316(b)(2)(G) of the Federal Mine Safety and Health Act of 1977 ("Mine Act" or "Act"),
as amended by the Mine hnprovement and New Emergency Response Act of 2006 ("MINER
Act"), 30 U.S.C. § 876(b)(2)(G), 120 Stat. 493, 495-96. This proceeding involves a citation
issued by the Department of Labor's Mine Safety and Health Administration ("MSHA") to
Twentymile ~oal Company ("Twentymile"). Administrative Law Judge Richard Manning
affirmed the citation at issue and directed Twentymile to include a provision in its emergency
response plan requiring a refuge chamber with post-accident breathable air for trapped miners in
the main entries. 29 FMSHRC 844, 861 (Oct. 2007) (ALJ). Twentymile filed a petition for
discretionary review that the Commission granted. For the reasons that follow, the judge's
decision stands as if affirmed.
I.
Factual and Procedural Background

A.

The Statutory and Regulatory Backdrop

Section 2 of the MINER Act, which became effective on June 15, 2006, and amends
section 316 of the Mine Act, 30 U.S.C. § 876, requires underground coal mine operators to

30 FMSHRC 736

develop and submit for MSHA approval 1 and periodic review an emergency response and
preparedness plan ("Emergency Response Plan" or "ERP"). See 30 U.S.C. § 876(b)(2)(A). The
basic goals of an ERP are twofold: to evacuate miners who are endangered by a mine emergency;
and to maintain miners who are trapped underground and are not able to evacuate. Id. at § 876
(b)(2)(B)(i) and (ii). The MINER Act specified that operators were to develop ERPs within 60
days after the date of the statute's enactment (June 15, 2006) and then submit them for approval
by the Secretary. Id. at§ 876(b)(2)(A) and (C).

In an effort to enhance the chances of survival of miners who are underground following
a mine accident, the MINER Act specifies that all ERPs must contain, inter alia, provisions
addressing post-accident communications, tracking of miners, lifelines, and breathable air. Id. at
§ 876(b)(2)(E)(i) - (vi). With regard to post-accident breathable air, the MINER Act specifies:
(iii) POST-ACCIDENT BREATHABLE AIR. -The plan shall
provide for (I) emergency supplies of breathable air for individuals
trapped underground sufficient to maintain such individuals
for a sustained period of time;
(II) in addition to the 2 hours of breathable air per miner
required ... under the emergency temporary standard ... ,
caches of self rescuers providing in the aggregate not less
than 2 hours per miner to be kept in escapeways from the

1

Section 316(b)(2)(C) provides:
(C)

PLAN APPROVAL. - The accident response plan ... shall
be subject to review and approval by the Secretary. In
determining whether to approve a particular plan the
Secretary shall take into consideration all comments
submitted by miners or their representatives. Approved
plans shall (i) afford miners a level of safety protection at least
consistent with the existing standards, including
standards mandated by law and regulation;
(ii) reflect the most recent credible scientific research;
(iii) be technologically feasible, make use of current
commercially available technology, and account for the
specific physical characteristics of the mine; and
(iv) reflect the improvements in mine safety gained
from experience under this Act and other worker safety
and health laws.

30 U.S.C. § 876(b)(2)(C).
30 FMSHRC 737

deepest work area to the surface at a distance of no further
than an average miner could walk in 30 minutes ....
30 U.S.C. § 876(b)(2)(E)(iii)(l) - (II).
In the legislative history accompanying the MINER Act, Congress made clear that
"escape is the first and preferred option" in the event of an underground accident. S. Rep. No;
109-365, 109th Cong., at 6 (2006) (hereafter "S. Rep."). "However, whether miners are
effectuating an escape or awaiting rescue, where escape proves impossible, breathable air is
essential ...." Id. As the report further noted, the MINER Act provided for increased numbers
of self-contained self-rescuers ("SCSRs") in the event of evacuation or entrapment, and ''with
regard to an entrapment, the [MlNER Act] requires that emergency plans analyze likely risks to
determine if breathable air beyond the increased stores ofSCSRs is necessary .... " Id.

The Secretary elected to provide guidance to the mining community with respect to
development of ERPs through a series of Program Policy Letters and a Program Information
Bulletin. 29 FMSHRC at 845. On July 21, 2006, the Secretary issued Program Policy Letter No.
P06-V-8 ("PPL") to guide operators in drafting ERPs for MSHA approval. R. Ex. 50. In the
PPL, the Secretary emphasized that miners should make every effort to evacuate the mine:
Barricading should be considered an absolute last resort and should
be considered only when evacuation routes have been physically
blocked. Lifelines, tethers, Self-Contained Self-Rescuers (SCSRs),
and proper training provide essential tools for miners to evacuate
through smoke and irrespirable atmospheres.

Id. at 1.
Subsequently, the Secretary issued a policy directive specifying her interpretation of the
quantity of air necessary to maintain trapped miners for "a sustained period of time," until a mine
rescue team could reach them. Program Information Bulletin, No. P07-03, at 1 (Feb. 8, 2007)
(hereafter "PIB"). The PIB directed mine operators to include in their ERPs a provision
specifying how breathable air will be maintained. Id. at 2. In addition, the PIB specified several
"options that may satisfy the breathable air requirement," including that "each miner should be
provided a 96-hour supply of breathable air located within 2,000 feet of the working section." Id.
The PIB concluded by stating that operators "must submit" the portion of their ERPs relating to
breathable air within 30 days. Id. at 3.
Issued with the PIB was an attachment entitled "Breathable Air Questions and Answers."
29 FMSHRC at 860; R. Ex. 57. In response to the question, "How can outby miners ... be
provided with breathable air?," MSHA stated:

30 FMSHRC 738

As with air provided to miners at the working section, breathable
air should be provided to outby miners working in established
work positions within an inflatable chamber, barricade, or other
alternative that isolates miners from contaminated environments
. . . . To increase the chances that outby miners could reach
breathable air supplies after an accident, District Managers
generally will be looking for breathable air locations to be located
not more than one hour travel distance from each other. This will
help assure that miners would not need to travel more than 30
minutes in either direction to reach a refuge area.
29 FMSHRC at 860; R. Ex. 57 at 1. In the introduction to the questions and answers, MSHA
emphasized that "mine-specific conditions in some mines may make alternative arrangements
appropriate to the circumstances in the mine." R. Ex. 57 at 1.
Also, MSHA issued a final rule, on December 8, 2006, addressing mine emergency
evacuations, a matter that had been addressed in an emergency temporary standard ("ETS") prior
to the passage of the MINERAct. 2 71 Fed. Reg. 71,430. A major aspect of the final rule was to
increase the availability of SCSRs to evacuating miners in the event of a mine emergency. Id. at
71443. The rule further provided for additional SCSRs in escapeways, when each miner cannot
safely evacuate within 30 minutes, by requiring that SCSR storage locations be no greater than
the distance an average miner can walk in 30 minutes, consistent with provisions in the MINER
Act. Id. Finally, the rule eliminated a requirement in the ETS that a mine operator submit an
outby SCSR storage plan because that requirement was to be addressed in the ERP under the
MINER Act. Id. at 71443-44.
B.

Events Leading to the Citation

Twentymile operates the Foidel Creek Mine, an underground longwall coal mine in
Colorado. See Jt. Ex. 7. About 100 miners work on each shift at the mine. Tr. 39. Miners enter
and exit the mine through one of the two portals in the 1 Main North ("MN") section. See Jt. Ex.
7. There are at least six entries in the mine between the portals and the 6 MN intake air shaft.
Tr. 32-34; see Sec. Exs. 3, 3A. The direction of the air in the entries is from the portals inby the
6 MN. Tr. 35-36; 38-39. Approximately ten miners, including belt shovelers, rock dusters, and
belt maintenance personnel, work in the area from the portals to the 6 MN. Tr. 160.

2

On March 9, 2006, MSHA had issued an ETS, 71 Fed. Reg. 12,252, to establish "a
more integrated approach to mine emergency response and evacuation." 71 Fed. Reg. 71,430.
The ETS went into effect immediately, and MSHA requested public comments on the ETS and
held public hearings. Id. Following, inter alia, consideration of the hearings, public comments
on the ETS, and provisions in the MINER Act, MSHA issued the final rule discussed above with
some changes from the ETS. Id.
30 FMSHRC 739

The entries are 18 to 20 feet wide and eight to nine feet high with a downward slope
ranging from 14 to 17 percent on average. Tr. 32-35; see Jt. Ex. 7. The No. 2 entry, which is on
the left side, and the No. 5 entry, which is on the right side, run parallel to each other and are
designated as escapeways. These entries are supplied separately with intake air and isolated with
stoppings so that there is no air exchange between them. Tr. 35-36; 60-61. Miners going to
work typically travel through the No. 2 or 5 entries in pickup trucks or diesel-powered vehicles.
Tr. 39. The belt line is in the No. 3 entry, which is separated from the other entries by permanent
stoppings. Tr. 37.

In the event of a mine emergency, miners can exit the mine through the portals, using
either the No. 2 or 5 escapeway. Tr. 35-36. In addition, miners can go through the escapeways
to the 6 MN, where there is an intake air shaft with an escape hoist. Tr. 28. Finally, they can go
inby the 6 MN where there are two other escape shafts in back of the longwall (11 right bleeder
shaft and 18 right bleeder shaft). Stip. 37 at 11-12; Tr. 60; see Jt. Ex. 7 (the escape shafts that are
inby the 6 MN are marked "C" and "D" on the mine map). The distance between the portals and
the 6 MN intake shaft is about four miles. 29 FMSHRC at 858.
In compliance with the deadlines established in section 2 of the MINER Act, Twentymile
submitted its first ERP on August 11, 2006. Id. at 846; R. Ex. 1. In the ERP, Twentymile stated
that it was awaiting further guidance from MSHA to address the availability of breathable air for
miners trapped underground. R. Ex. 1 at 2. However, in addressing the evacuation of miners,
the plan provided for caches of SCSRs in escapeways, in addition to the two hours of breathable
hour required in MSHA's ETS. Id. MSHA responded to Twentymile's plan on October 30,
2006, and subsequently met with representatives of Twentymile. 29 FMSHRC at 846; R. Ex. 2.
Twentymile submitted a revised ERP on February 1, 2007. 29 FMSHRC at 846; R. Ex.
3. As noted above, on February 8 (one week later), MSHA issued the PIB in order to give
operators additional guidance on complying with the breathable air requirements in the MINER
Act. The PIB also required all operators to submit revised ERPs for MSHA's review by
March 12, 2007. 29 FMSHRC at 846. On March 2, 2007, MSHA responded to Twentymile's
February 1 submission by stating that "the type, amount and location of oxygen must be specified
forthe ERP to be approved." Id. In addition, MSHA stated that caches ofSCSRs must be
located at intervals over distances that miners could walk in 30 minutes. R. Ex. 4 at 2.
On March 12, Twentymile submitted an amended ERP. 29 FMSHRC at 847; R. Ex. 5.
Twentymile noted in the plan that ''barricade chambers currently being developed do not provide
the atmosphere acceptable to [us]. We are evaluating the individual units as improvements are
made." R. Ex. 5 at 2. MSHA rejected the portion of the ERP dealing with post-accident
breathable air and directed Twentymile to provide additional clarification of placement of
breathable air for miners trapped underground. 29 FMSHRC at 847; R. Ex. 6.

On March 28, Twentymile submitted another revised ERP. 29 FMSHRC at 847; R. Ex.
7. In addressing post-accident breathable air, Twentymile specified the use of rescue chambers

30 FMSHRC 740

for miners in the working sections of the longwall panels. R. Ex. 7 at 2. For miners "outby the
section," the ERP provided that "[t]he recently completed intake ventilation shaft [in the 6 MN]
can be easily isolated from the main air courses with equipment doors and is accessible." 29
FMSHRC at 847; R. Ex. 7 at 3. On April 13, MSHA's District Manager, Allyn Davis, responded
to Twentymile, stating that its ERP did not meet the post-accident breathable air provisions of the
MINER Act and that Twentymile should specify how the breathable air requirement will be met
for "outby personnel." 29 FMSHRC at 847; R. Ex. 8.
On April 23, in response to MSHA's comments, Twentymile submitted an ERP in which
it had revised the provision on post-accident breathable air. 29 FMSHRC at 847. The ERP
continued to provide for rescue chambers with 96 hours of breathable air in the working sections
within 2000 feet of the loading point. R. Ex. 9 at 2. The plan also contained a new provision
addressing post-accident breathable air for outby miners:
Outby the section
Personnel working in outby areas can readily access the recently
completed intake ventilation shaft should escape from the mine be
impossible.
This shaft will be outfitted with an emergency escape hoist later
this year~
Personnel working outby the working sections, either inby or outby
the shaft, will have access to the shaft or access to one of the two
intake escapeways to the portal.
Other means of escape are available to outby personnel, depending
on their location, including the 18 Right intake bleeder shaft.
29 FMSHRC at 847; R. Ex. 9 at 2-3. As did the prior ERP submitted to MSHA, this plan also
contained a succeeding section entitled "Additional SCSR's in Escapeways," in which
Twentymile provided for additional caches of SCSRs beyond the number required by the
Secretary's ETS (see n.2, supra); R. Ex. 9 at 3-4.
fu late May, a Twentymile representative spoke with MSHA employee Hillary Smith,
who was involved with plan review at MSHA District 9, to discuss the issue of outby personnel
and breathable air. 29 FMSHRC at 847. The Twentymile representative asked Smith to explain
why Twentymile's ERP had not been approved when plans with similar breathable air provisions
for outby personnel had been approved in another MSHA district. Id. at 847-48. fu addition to
citing differences at the Foidel Creek Mine, Smith said that she did not think District Manager
Davis would approve an ERP that failed to provide breathable air in the main entries at the mine

30 FMSHRC 741

for travel distances exceeding 15,000 feet. Id. at 848. The Twentymile representative responded
that he did not believe that MSHA's position was correct. Id.

On June 14, 2007, Twentymile submitted an ERP in which it revised the section
addressing breathable air for miners in the outby section. Id. at 848-49; R. Ex. 10. The ERP
contained greater detail with regard to the intake air shaft in the 6 MN and how miners could
barricade themselves there and be hoisted out. 29 FMSHRC at 848-49. The ERP further
specified:
Personnel working outby the working sections, either inby or outby
the shaft, will have access to the shaft or access to one of the two
intake escapeways to the portal. Personnel working in these areas
will at no time be more than 10,000 feet from either the portal or
the 6 Main North intake shaft. The main entries are outfitted with
two separate intake escapeways, each travelable with diesel pickup mantrips, each containing caches sufficiently spaced for
individuals walking and for the number of personnel working inby
that point.
Id. at 849.

In a three-page letter dated June 22, MSHA District Manager Davis responded to
Twentymile's ERP. Id.; R. Ex. 11. Davis stated that Twentymile's ERP must be modified in
order to comply with the breathable air requirements in the MINER Act. R. Ex. 11. Initially,
Davis noted that post-accident breathable air provisions may vary from mine to mine based on
mine-specific circumstances. Id. at 2. He further stated that in the ERP for the Foidel Creek
Mine:
Post accident breathable air needs to be addressed in the main
entries an approximate distance of 10,000 to 15,000 feet from the
portal. The distance from the portal to the intake shaft is too great
a distance not to maintain some sort ofpost accident breathable
air, and two isolated intake escapeways to the same portal
locations do not provide the same amount of protection as
breathable air.
29 FMSHRC at 849-50 (emphasis added). MSHA required that the ERP state how the
"requirement of 96 hours of [b]reathable [a]ir will be met for those sections that do not have two
intake air escapeways." R. Ex. 11at2.

In addressing "SCSRs Sufficient to Permit Escape," Davis requested that Twentymile
"[i]nclude a map of the work areas, tracking zones, post-accident breathable air, and SCSR
storage locations." Id. at 3. With regard to provisions of the ERP that MSHA had approved,
30 FMSHRC 742

Davis instructed Twentymile to implement them. Id. Davis concluded by requesting that
Twentymile address the deficiencies that MSHA had identified in the plan and submit a complete
ERP by June 29, 2007. Id.
On June 28, Twentymile's safety director, Dick Conkle, informed MSHA that
Twentymile's revised ERP would not include refuge chambers in the main entries and stated that
miners could not be trapped in this area because they had multiple ways out of the mine. 29
FMSHRC at 850. On July 2, Twentymile submitted an ERP that was substantially similar to the
one that it had submitted on June 14. Id.; Jt. Ex. 1. The section of the plan addressing postaccident breathable air for outbypersonnel was unchanged. See Jt. Ex.I at 3-4.

By letter dated July 31, MSHA District Manager Davis notified Twentymile that its ERP
was approved with the exception of the provision addressing breathable air for outhy miners. 29
FMSHRC at 850. The letter stated, in relevant part:
[W]e have determined that the July 2nd ERP fails to provide
sufficient quantities of breathable air for miners who might be
trapped in outby areas. Specifically, we cannot approve an ERP in
full for the Foidel Creek Mine unless post-accident breathable air is
provided at some point in the main entries at a distance of between
10,000 to 15,000 feet from the portal. Breathable air is necessary
within this area to maintain miners who are traveling or performing
maintenance/examination activities in the main entries and who
could be trapped within the approximately 20,000-foot and often
significantly sloped, expanse between the portal and the intake air
shaft, if an event (e.g., fire or explosion) compromises the intake
escapeways and circumstances prevent miners from reaching the
portal or the intake air shaft. In such an instance, breathable air
would be necessary in the area that we have identified to permit
miners to survive for a sustained period of time prior to rescue.
Id.; Jt. Ex. 2 at 1-2. The letter further stated that the conditions in the main entries required that a
"revised ERP ... provide[ ] breathable air for outby miners ... in the same manner as that
specified in the July 2nd ERP for miners iri active gateroad and mains development locations."3
Jt. Ex. 2 at 2. The letter concluded by stating that Twentymile should correct the deficiencies in
the ERP and submit it to MSHA by August 7, 2007. Id. at 3.
On August 7, Twentymile submitted the ERP which is the subject of this litigation. 29
FMSHRC at 850. In the cover letter that accompanied the ERP, Twentymile noted:

3

However, MSHA would allow Twentymile to provide 72 hours of breathable air for
miners in the main entries, as opposed to the 96 hours of breathable air that was provided for
miners in the active gateroads and main development locations. Jt. Ex. 2 at 2.
30 FMSHRC 743

We consider the Twentymile Mine configuration unique in that
multiple directions are available for personnel working
underground to use if an event required evacuation from the mine.
We feel the requirement of a rescue chamber for the area in
question, from the portal to the intake shaft, is not applicable
because of the multiple directions available ....

Id. at 850; Jt. Ex. 3 at 1. Therefore, with the exception of some minor wording changes in the
breathable air section for outby personnel and the addition of some supplies at the 6 MN intake
shaft, the ERP submitted was the same as the one that Twentymile had submitted on June 14. 29
FMSHRC at 851.
On September 10, MSHA District Manager Davis wrote to Twentymile and asked to be
informed by September 13, 2007, what Twentymile intended to do with regard to the placement
of a refuge chamber in the location between the portal and the 6 MN intake air shaft. Id.; Jt. Ex.
5. Davis concluded the letter by stating that, "if you still refuse to amend your current ERP and
to place a rescue chamber or an established refuge area in this location, MSHA will conclude that
the parties are at an impasse." 29 FMSHRC at 851; Jt. Ex. 5 at 2. On September 13,
Twentymile responded to Davis by reiterating its position that the Foidel Creek Mine was unique
because "multiple directions are available for personnel working underground" from the portal to
the intake air shaft. 29 FMSHRC at 851; Jt. Ex. 6.
On September 18, 2007, MSHA issued Citation No. 7284469 alleging that Twentymile
violated section 316(b)(2) of the Mine Act by failing to develop and submit for approval an ERP
that provided for the maintenance of miners trapped underground. 29 FMSHRC at 851;
S. Referral, Attachment A. The citation further states that the ERP "does not provide materials
and equipment necessary to supply breathable air for miners who may be trapped in the main
entries ... in the approximately 20,000-foot distance between the portal and intake air shaft near
the 6 MN section." 29 FMSHRC at 851; S. Referral, Attachment A. Because of this, MSHA
could not approve the ERP. Thereafter, on September 20, the Secretary filed a referral with the
Commission. 29 FMSHRC at 852; S. Referral. Twentymile timely responded to the referral and
requested a hearing. 29 FMSHRC at 852; T. Resp. to Referral.
C.

Judge's Decision

On October 2, a hearing was held in Denver, Colorado. 29 FMSHRC 844. On October
16, the judge issued his decision. See 30 U.S.C. § 876(b)(2)(G)(ii). 4 The judge agreed with the

4

Section 2 of the MINER Act provides for referral to the Commission of disputes arising
over ERPs, and Commission Procedural Rule 24 implements the referral process by providing
for the expeditious resolution of disputes that come before the Commission. Briefly, if there is a
dispute between an operator and the Secretary over a plan provision, the Secretary must issue a
citation. 30 U.S.C. § 876(b)(2)(G)(ii). Thereafter, Rule 24 provides for the filing of a referral of
30 FMSHRC 744

Secretary that the central issue was whether MSHA's decision to require the placement of a
refuge chamber in the main entry; near the midpoint between the portal and the 6 MN intake air
shaft, was arbitrary and capricious. 29 FMSHRC at 857. With regard to Twentymile's
arguments that the MINER Act is unconstitutionally vague and that the Secretary's use of PPLs
and the PIB is contrary to law because they were not subject to notice-and-comment rulemaking,
the judge held that the scope of the hearing was limited to review of the disputed plan provision.
Id. at 857-58. The judge further held that the Secretary bore the burden of proving that MSHA's
refusal to approve Twentymile's ERP was not arbitrary and capricious. Id. at 858.
The judge noted that it was about 4 miles from the portal to the 6 MN air shaft. Id. The
judge rejected Twentymile's position that, because it was not "likely" that miners would ever
become trapped in outby areas, it was unlikely that a refuge area in the outby areas would ever be
used. Id. Rather, the judge concluded that it was not unreasonable for the District Manager to
require the inclusion of an outby refuge area in the plan. Id. Although the judge noted that
Twentymile was "an exemplary underground coal mine operator," the judge concluded that the
Secretary established that there was a reasonable possibility of a major accident or multiple
accidents that could trap miners, especially injured miners, between the portal and the 6 MN air
shaft. Id. at 859. The judge rejected Twentymile's argument that the District Manager failed to
consider the specific conditions at the mine when he refused to approve plan provisions for
miners working in the outby area. Id. The judge also rejectedTwentymile's reliance on the
District Manager's approval of a provision for the active longwall section that was similar to
what Twentymile proposed for the outby miners. Id. The judge found it persuasive that, in the
longwall section, the entries receive intake air from two independent sources from opposite
directions, in contrast to the mains where air travels down two parallel intake escapeways,
thereby raising the threat of air contamination if ventilation controls were damaged. Id.
The judge also affirmed his trial ruling on the Secretary's motion in limine to exclude
evidence that Twen,tymile sought to offer with regard to ERPs with breathable air provisions for
outby miners that were approved in other districts. Id. at 860. The judge viewed Twentymile's
effort to introduce this evidence as part of its larger argument that the Secretary's use of PPLs
and the PIB produced inconsistent results. Id. However, the judge noted that the issue of
breathable air for outby miners had been addressed in the ''Breathable Air Questions and
Answers," which had accompanied the PIB issued by the Secretary, pp. 3-4, supra. The judge
stated that the District Manager's insistence on a refuge area was consistent with the guidelines.·

the citation with the Commission within two days. 29 C.F.R. § 2700.24(a). The rule further
provides for the submission of materials relevant to the dispute, or a hearing, within 15 days of
the referral. Id. § 2700.24(e). Within 15 days of the judge's receipt of materials or hearing
testimony, he or she must issue a decision. Id. § 2700.24(£)(1). Thereafter, ifthe judge rules in
the Secretary's favor, the disputed provision must be included in the ERP unless the judge or the
Commission grants a stay. Id. § 2700.24(£)(2). Following issuance of the judge's decision, a ·
party may seek review of the judge's decision by filing a petition for discretionary review. Id.
§ 2700.24(g).
30 FMSHRC 745

Id. The judge concluded by finding that the Secretary had carried her burden of proof that the
District Manager's refusal to approve the breathable air provision for outby miners was not
arbitrary and capricious and her position was taken in good faith and was not unreasonable. Id.
at 860-61. The judge affirmed the citation and ordered further negotiations to work out the
details of the post-accident breathable provision for the ERP. Id. at 861.

II.
Disposition
Before the Commission, Twentymile first challenges the judge's granting of the
Secretary's motion in limine to preclude Twentymile from introducing into evidence approved
ERPs from other mines in other MSHA districts that contained breathable air provisions similar
to Twentymile's proposed ERP. T. Br. at 11; T. Reply Br. at 5-6. Twentymile maintains that
this evidence would have shown that the District Manager acted improperly in requiring
Twentymile to include a refuge chamber in the main entries in its plan. T. Br. at 11-14.
Twentymile also argues that the judge erred when he applied an "arbitrary or capricious"
standard of review in upholding the Secretary's refusal to accept Twentymile's plan. Id. at 1516. Twentymile further argues that the judge erred in interpreting the MINER Act by requiring a
refuge chamber for the "reasonable possibility" that an event such as a belt or equipment fire
would entrap miners underground. T. Br. at 18-19; T. Reply Br. at 6-9. Twentymile contends
that the legislative history of the MINER Act supports a reading that breathable air provisions in
ERPs address "likely" risks. T. Br. at 19-20. Twentymile additionally contends that the judge
misinterpreted "entrapped" as used in the MINER Act. Id. at 20-21. As a final argument,
Twentymile contends that there were no standards to guide the District Manager's approval
process and that he failed to account for the mine specific conditions at Twentymile. Id. at 2330; T. Reply Br. at 9-11.
In response, 5 the Secretary argues that the judge correctly applied the breathable air
provisions of the Mine Act when the judge determined that it was "reasonably possible" that
miners could be entrapped. S. Br. at 18-20. In support, the Secretary contends that a plain
meaning approach to the MINER Act provisions supports her position, as does the legislative
history. Id. at 20-26. Alternatively, the Secretary argues that, if the statutory language is
ambiguous, the Commission should defer to her interpretation. Id. at 26-28. The Secretary
further argues that the MSHA District Manager's refusal to approve Twentymile's ERP should
be reviewed under an "arbitrary and capricious" standard. Id. at 29-34. The Secretary contends
that the actions of the District Manager in refusing to approve the plan were reasonable in light of
the conditions in the areas outby the 6 MN air shaft. Id. at 35-43. Finally, the Secretary argues

5

Prior to filing its brief in this proceeding, the Secretary filed a Motion to Exceed Page
Limit as established in the Commission's Procedural Rules, 29 C.F.R. § 2700.75(c). The motion
was unopposed. However, at the time the motion was filed, the Commission did not have a
working quorum. We now grant the motion.
30 FMSHRC 746

that the judge properly granted the Secretary's motion in limineto exclude evidence ofMSHA
approval of ERPs in other districts. Id. at 43-46. The Secretary concludes by requesting that the
Commission affirm the judge's decision. Id. at 47.
A.

Legislative Background

Passed in response to the tragic loss of life in several mine accidents in 2006, the MINER
Act took a multi-faceted approach to enhancing safety and managing risk in underground coal
mines. S. Rep. at 1-3. Section 2 of the MINER Act requires that each underground coal mine
operator adopt a written Emergency Response Plan. 30 U.S.C. § 876(b)(l), (2). Thus, the
MINER Act requires the development of plans, "which must provide for the evacuation of
miners who may be endangered in an emergency or, if miners cannot evacuate, provide for their
maintenance underground." S. Rep. at 4.
With regard to the drafting and approval of ERPs, the legislative history of the MINER
Act states, "In order to facilitate implementation of the [MINER] [A]ct's revisions, the [Senate]
committee decided to make use of the 'plan' model since all parties were familiar with its use in
other contexts." Id. Thus, Congress intended that the principles governing the process of
formulating ERPs be similar to those governing other mine plans under the Mine Act. With
regard to mine plans, the Commission has long held, "[M]ine ventilation or roof control plan
provisions must address the specific conditions of a particular mine." Peabody Coal Co., 15
FMSHRC 381, 386 (Mar. 1993) ("Peabody I"). However, in addition to mine-specific
provisions in plans, the MINER Act provides for the inclusion in ERPs of six "areas of concern
that have universal applicability and are therefore susceptible of more generalized regulation."
S. Rep. at 5. See 30 U.S.C. § 876(b)(2)(E)(i) - (vi). One of these areas of general applicability is
post-accident breathable air. Id. at§ 876(b)(2)(E)(iii).
The MINER Act further specifies certain minimum requirements for "post-accident
breathable air in each plan." Thus, the MINER Act provides "for individuals trapped
underground sufficient [air] to maintain such individuals for a sustained period of time," and for
evacuating miners "caches of self'-rescuers providing ... not less than 2 hours per miner to be
kept in escapeways from the deepest work areas to the surface .... " 30 U:S.C.
§ 876(b)(2)(E)(iii)(D and (II).

B.

General Legal Principles-Standard of Review

One of the cornerstone principles with regard to plan formulation under the Mine Act is
that MSHA and the affected operator must negotiate in good faith for a reasonable period
concerning a disputed plan provision. Carbon County Coal Co., 7 FMSHRC 1367, 1371 (Sept.
1985). The Commission has noted, "Two key elements of good faith consultation are giving
notice of a party's position and adequate discussion of disputed provisions." C. W. Mining Co.,
18 FMSHRC 1740, 174 7 (Oct. 1996). In this proceeding, neither party disputes the presence of
good faith consultations, and the-record fully supports that the Secretary and Twentymile had

30 FMSHRC 747

extensive back-and-forth consultations over a period of a year regarding the breathable air
provisions in the ERP. See Emerald Coal Res., LP, 29 FMSHRC 956, 967 (Dec. 2007).
While the contents of a plan are based on consultations between the Secretary and
operators, the Commission has recognized that "the Secretary is [not] in the same position as a
private party conducting arm's length negotiations in a free market." Id. at 1746. As one court
has noted, ''the Secretary must independently exercise [her] judgment with respect to the content
of ... plans in connection with [her] final approval of the plan." UMWA v. Dole, 870 F.2d 662,
669 n.10 (D.C. Cir. 1989), quoting S. Rep. No. 181, 95th Cong., 25 (1977), reprinted in Senate
Subcom. on Labor, Com. on Human Res., 95th Cong., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 613 (1978). Ultimately, the plan approval process involves an
element of judgment on the Secretary's part. Peabody Coal Co., 18 FMSHRC 686, 692 (May
1996) ("Peabody If'). "[A]bsent bad faith or arbitrary action, the Secretary retains the discretion
to insist upon the inclusion of specific provisions as a condition of the plan's approval." C. W
Mining, 18 FMSHRC at 1746; see also Monterey Coal Co., 5 FMSHRC 1010, 1019 (June 1983)
(withdrawal of approval of water impoundment plan was not arbitrary or capricious where
MSHA's conduct throughout the process was reasonable). In its initial decision involving review
ofMSHA's refusal to approve an ERP, the Commission adopted the arbitrary and capricious
standard to review MSHA's actions in the plan approval process. Emerald Coal, 29 FMSHRC at
966.
On review in this proceeding, Twentymile argues that the "arbitrary and capricious"
standard is not appropriate and that the Secretary should be required to demonstrate that the
operator's plan is unreasonable. T. Br. at 15. As the Commission stated in Emerald Coal,
however, review of the Secretary's actions under an "arbitrary and capricious" standard is in
accordance with Commission precedent. 29 FMSHRC at 966. The standard involves a review
of the record to determine whether the Secretary properly exercised her discretion and judgment
in the plan approval process. To the extent that Twentymile argues that the Commission should
apply a reasonableness standard, T. Br. 18, the Commission's standard ofreview incorporates an
element of reasonableness in reviewing the Secretary's actions. See Monterey Coal, 5 FMSHRC
at 1019 (in affirming a citation in which an operator was cited for failing to supply data relating
to impoundment pond construction, the Commission concluded that the course of action taken by
MSHA was "a reasonable approach, and not arbitrary or capricious"); accord Peabody II, 18
FMSHRC at 692 & n.6 (in reviewing the Secretary's refusal to approve a ventilation plan
provision, Commission noted that the plan approval process involves an element of judgment on
the part of the Secretary that is reviewed under an arbitrary and capricious standard).

In further support of its position that the Commission should review the reasonableness of
the operator's plan, Twentymile contends that the intent of the MINER Act was to permit
operators to develop and implement their own plans before MSHA review. T. Br. at 18; T. Reply
Br. at 1-4. We disagree. There is no statutory language that directs operators to unilaterally
implement ERPs prior to MSHA approval. Rather, the legislative history accompanying the
passage of the MINER Act makes clear that the approval process, with the involvement of

30 FMSHRC 748

MSHA district office personnel, is an integral part of the plan formulation process. S. Rep. at 4.
Morever, the facts in this proceeding belie Twentymile's argument. In its June 22, 2007,
response to Twentymile's draft ERP, MSHA specifically instructed Twentymile to implement the
provisions of the ERP that MSHA had approved. R. Ex. 11 at 3~ Thus, we are not persuaded
that Twentymile was obligated to formally implement its ERP before MSHA approval.
To the extent that Twentymile also argues that the Secretary committed legal errors in the
plan approval process, the Commission is well within its authority to review MSHA's decisions
for those errors. See Utah Power & Light Co., 13 FMSHRC 1617, 1623 n.6 (Oct. 1991) ("Abuse
of discretion may be broadly defined to include errors of law."). Finally, an arbitrary and
capricious standard of review of the Secretary's actions in the plan approval process
encompasses the Commission's review ofthejudge's factual findings under a substantial
evidence standard. 6 Emerald Coal, 29 FMSHRC at 966.
C.

Whether the Secretary Properly Interpreted the Relevant Provisions of Section 316
of the Mine Act

Twentymile argues that the Secretary erred in interpreting the post-accident breathable air
provisions of the Mine Act and then further erred when she applied those provisions at the Foidel
Creek mine. T. Br. at 19-21. In response, the Secretary contends that, under a plain meaning
approach, the MINER Act provisions that require breathable air for trapped miners clearly apply
when a fire or explosion is "reasonably possible" and that the District Manager's refusal to
approve Twentymile's ERP without a refuge chamber in the main entry between the portal and
the 6MN intake shaft was not arbitrary and capricious. S. Br. at 18-34. The proceeding thus
turns in large part on the meaning and application of the breathable air provisions of the MINER
Act.
The breathable air provision in section 316 of the Mine Act, as amended by the MINER
Act, requires: (1) that the ERP provide for "emergency supplies of breathable air for individuals
trapped underground sufficient to maintain such individuals for a sustained period of time " and
(2) that the ERP provide for a minimum of 2 hours of breathable air per miner in the form of
caches of SCSRs in escapeways "from the deepest work area to the surface at a distance of not
further than an average miner could walk in 30 minutes" to facilitate the evacuation· of miners.
30 U.S.C. § 876(b)(2)(E)(iii)(I) & (II).

6

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion.'" Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938));
30 FMSHRC 749

The first inquiry in statutory construction is "whether Congress has directly spoken to the
precise question at issue." Chevron U.S.A. Inc. v. Natural Res. Defense Council, Inc., 467 U.S.
837, 842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). If a statute is
clear and unambiguous, effect must be given to its language. See Chevron, 467 U.S. at 842-43;
accord Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C. Cir. 1990). Deference to
an agency's interpretation of the statute may not be applied ''to alter the clearly expressed intent
of Congress." K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (citations omitted). In
determining whether Congress had an intention on the specific question at issue, courts utilize
traditional tools of construction, including an examination of the "particular statutory language at
issue, as well as the language and design of the statute as a whole." Id.; Local Union 1261,
UMWA v. FMSHRC, 917 F.2d at 44; Coal Employment Project v. Dole, 889 F.2d 1127, 1131
(D.C. Cir. 1989). The examination to determine whether there is such a clear Congressional
intent is commonly referred to as a "Chevron Step One" analysis. See Coal Employment Project,
889 F.2d at 1131; Thunder Basin, 18 FMSHRC at 584; Keystone Coal Mining Corp., 16
FMSHRC 6, 13 (Jan. 1994). If the statute is ambiguous or silent on the point in question, a
second inquiry, commonly referred to as a "Chevron Step Two" analysis, is required to determine
whether an agency's interpretation of a statute is a reasonable one. See Chevron, 467 U.S. at
843-44; Coal Employment Project, 889 F.2d at 1131; Thunder Basin Coal Co., 18 FMSHRC at
584 n.2; Keystone, 16 FMSHRC at 13.
1.

The meaning of the word "trapped"

Twentymile and the Secretary disagree over the meaning of"trapped" as used in section
316 of the Mine Act, as amended by the MINER Act. Twentymile contends that, in order for
miners to be trapped, there must be a "physical obstruction of egress from the mine." T. Br. at
20. However, the Secretary maintains that no physical obstruction is necessary and that miners
may be "trapped" for many other reasons. S. Br. at 27-28.
In the absence of a statutory or regulatory definition of a term, the Commission applies
the ordinary meaning of that term. E.g., Jim Walter Res., Inc., 28 FMSHRC 983, 987-88 (Dec.
2006). ''Trap" means "to place ... in a restricted or difficult position; confine, entangle ...."
Webster's Third New Int 'l Dictionary, Unabridged 2431 (1986). Thus, the dictionary definitiori
of the term does not specifically require a physical obstruction.

Further, in addition to the literal definition of ''trapped, " the context in which the term is
used also gives meaning to the term. 7 As noted above, section 316 of the Mine Act contains the
7

"fu order to discern a standard's plain meaning, the standard must be read in context."
RAG Shoshone Coal Corp., 26 FMSHRC 75, 80 n.7 (Feb. 2004), citing Local Union 1261,
UMWA v. FMSHRC, 917 F.2d 42, 45 (D.C. Cir. 1990) ("If the first rule of ... construction is
'Read,' the second rule is 'Read on!"'); Borgner v. Brooks, 284 F.3d 1204, 1208 (11th Cir.
2002), cert. denied sub nom. Borgner v. Florida Bd. ofDentistry, 537 U.S. 1080 (2002) (in
discerning a statutory provision's plain meaning, court must construe the statute in its entirety).
30 FMSHRC 750

dual requirements of breathable air for evacuating miners and for those miners who are trapped
and unable to evacuate. The legislative history that accompanied the MINER Act is instructive
in describing the circumstances when miners would need breathable air and possibly face
entrapment:

In committee hearings, there was agreement among safety
experts that in the event of an underground mine accident, escape
is the first and the preferred option. The act does not signify a
change in that philosophy. However, whether miners are
effectuating an escape or awaiting rescue, where escape proves
impossible, breathable air is essential to sustaining life.
S. Rep. at 6 (emphasis added). The committee report further refers to "possible incidents" and
conditions which give rise to the need for breathable air. Id. at 6-7. Notably absent from these
broad descriptions of the events that trigger the need for breathable air are any words that would
limit application to a specific mine condition. See Walker Stone Co., 19 FMSHRC 48, 51 (Jan.
1997), aff'd, 156 F.3d 1076 (10th Cir. 1998). Accordingly, the events that give rise to the
provision of breathable air are not limited to situations involving physical obstruction in mines.
However, conditions in the mine must be so arduous that evacuation from the mine becomes
impossible. This is the scenario envisioned by section 316, which imposes the additional
breathable air requirement "sufficient to maintain such individuals for a sustained period of
time." 30 U.S.C. § 876(b)(2)(E)(iii)(I). This reading is also consistent with other sections of the
MINER Act and the corresponding legislative history. 8
Finally, the plain meaning approach to reading the MINER Act and the reference to
"trapped" miners is not only consistent with the provisions of the statute and its legislative history,
but also is consistent with the primary purpose of the legislation and experiences from the mine
disasters that led to the legislation. As the legislative history states, the purpose of the MINER
Act is to further the· goals in the Mine Act and ''to enhance worker safety in our nation's mines."
S. Rep. at 1. A reading of the MINER Act that would include all types of mine emergencies that
make escape impossible, not just physical obstructions in mines, best furthers this purpose.

8

Chairman Duffy and Commissioner Young note that, in addressing the requirement for
post-accident lifelines in ERPs in the MINER Act, 30 U.S.C § 876(b)(2)(E)(iv), the committee
report recognizes the importance of flame-resistant directional lifelines to provide assistance in
following escape routes in circumstances of diminished visibility. S. Rep. at 7. They believe that
the lifelines requirement for plans indicates a concern for dangers posed by smoke and fire that
force miners to evacuate the mine. None of these circumstances involves physical obstructions
in the mines. They conclude that it is apparent from these cumulative provisions that the drafters
of the MINER Act foresaw that miners would attempt to evacuate mines under difficult
circumstances, including the presence of smoke, fire, and non-breathable air. This leaves ERPs
to address the maintenance of trapped miners who are faced with even more hazardous
conditions of the same nature that make escape "impossible."
30 FMSHRC 751

In short, based on the clear language of the MINER Act, the context in which the language
appears, and the legislative history accompanying the breathable air provisions, we conclude, in
agreement with the Secretary, that the reference to ''trapped" does not require a physical
obstruction of egress from a mine.
2.

The Secretary's "reasonable possibility" test

The judge adopted the Secretary's standard of"reasonable possibility" in considering
whether outby miners at the Foidel Creek mine could become trapped, which would trigger the
requirements of section 316(b)(2)(E)(iii)(I) of the Mine Act. 29 FMSHRC at 858-59.9 On appeal,
as noted above, Twentymile continues to argue that the legislative history of the MJNER Act
supports its contention that breathable air beyond increased stores of SCSRs is necessary only in
the event of"likely" risks of entrapment. T. Br. at 18-20; T. Reply Br. at 6-9.
The Secretary argues that, under a Chevron I analysis, a literal reading of section 316
indicates that the breathable air requirement applies any time that miner entrapment is a
"reasonable possibility." S. Br. at 20-22. In addition to the literal reading of the statutory
language, the Secretary's primary support for the "reasonable possibility'' standard is the
committee report accompanying the MINER Act in which the drafters referred to how much
breathable air to provide:
Although at least one jurisdiction has adopted a fixed time standard
for breathable air, the committee elected not to do so. fustead the
committee believes an emergency plan should address possible
incidents and the attendant need for sufficient breathable air. The
projected need is obviously fact specific.

S. Rep. at 6 (emphasis added).
However, we are not convinced that Congress directly spoke to the issue of what test
should be used in determining when additional breathable air should be required in case miners
are trapped. Contrary to the Secretary;s argument, S. Br. at 20-26, nothing in the statutory
language mentions a "reasonable possibility" test or otherwise indicates that such a test is
mandated. fu addition, the language from the committee report relied upon by the Secretary
merely indicates that an ERP should address "possible incidents" and does not set forth any
particular test for determining when breathable air is required.

9

The judge found that the Secretary established that "there is a 'reasonable possibility'
that a major accident ... could trap miners, especially injured miners, between the portal and the
6 MN air shaft." 29 FMSHRC at 859. The judge further noted that the District Manager
evaluated the "distances involved and the possibility of a belt fire, an equipment fire, or another
unexpected event near the portal." Id.
30 FMSHRC 752

Moreover, as argued byTwentymile, T. Br. at 19-20, the same committee report
accompanying the MINER Act can also be read to direct a different approach to assessing the
need for breathable air by analyzing "likely risks" at a mine. S. Rep. at 6 (emphasis added).
While the Secretary seeks to dismiss this portion of the committee report as a "single snippet of
legislative history," S. Br. at 25, we conclude that this "likely risk" standard would also comport
with the language of the MINER Act and the context of the breathable air provision. In sum, we
conclude that the Secretary's "reasonably possible" interpretation is not compelled under a
Chevron I analysis.
Where, as here, the statute appears to be silent on the point in question, a Chevron II
analysis is therefore appropriate. Under that analysis, the question is whether the Secretary's
interpretation of the statute is a reasonable one. Chevron, 467 U.S. at 843-44. In this case, the
Secretary's reliance on a ''reasonable possibility" test is a reasonable approach to interpreting and
applying the breathable air requirement of section 316. Nothing in the statutory language would
prevent the use of such an approach, and, as discussed above, the legislative history is generally
consistent with such an approach even though other approaches would also be permissible. The
Secretary's interpretation also furthers the safety purposes of the Mine Act. Moreover, as the
judge acknowledged, ''The vast majority of refuge areas that are being established under the
MINER Act will never be used because either the catastrophic events that could necessitate their
use will never occur or because the affected miners will be able to escape the mine." 29
FMSHRC at 858.
Thus, we affirm the judge's use of a "reasonable possibility" test in this case. See Dolese
Bros. Co., 16 FMSHRC 689, 693 (Apr. 1994). We next consider whether the Secretary properly
applied that test in considering Twentymile's proposed ERP.
The Commissioners are evenly divided regarding whether the judge correctly determined
that the MSHA District Manager did not act arbitrarily and capriciously when he rejected
Twentymile's draft'ERP because it did not provide for a refuge chamber in the mains near the
midpoint between the portals and the 6 MN intake air shaft. Commissioners Jordan and Cohen
would affirm the portion of the judge's decision in which he held that the District Manager's
refusal to approve the draft plan without such a provision was not arbitrary and capricious.
Chairman Duffy and Commissioner Young would reverse the judge's determination on that issue.
The effect of the split decision is to allow the judge's order, in which he required Twentymile to
provide for a refuge chamber approximately halfway between the portals and the 6 MN air shaft,
to stand, as if affirmed. See Pennsylvania Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990),
ajf'd on other grounds, 969 F.2d 1501 (3d Cir. 1992). The Commissioners are also evenly
divided on the issue of whether the judge properly granted the Secretary's motion in limine. The
separate opinions of the Commissioners follow:

30 FMSHRC 753

III.
Separate Opinions of the Commissioners
Commissioner Jordan and Commissioner Cohen, in favor of affirming the decision of the
administrative law judge:
A.

Whether the District Manager's Action in Refusing to Approve
Twentyinile's ERP without a Provision for a Refuge Chamber in the Main
Entry was Arbitrary and Capricious

This case emerges out of a lengthy process of good faith negotiations between Twentymile
and District 9 ofMSHA concerning the MINER Act's requirements for an emergency response
plan, or "ERP." See 30 U.S.C. § 876(b)(2)(A). It appears that Twentymile and MSHA consulted
with each other and both made adjustments in their positions on several issues. However, on one
question they reached an impasse. This was whether Twentymile must make provision for
"breathable air" under section316(b)(2)(E)(iii)(I) of the Mine Act, 30 U.S.C.
§ 876(b)(2)(E)(iii)(I), for miners who work in the approximately 20,000-foot distance between the
portals and the 6 Main North ("MN'') intake air shaft ("outby miners"). In his opinion,
Administrative Law Judge Richard W. Manning affirmed the District 9 decision to require a
refuge chamber at a midpoint between the portals and the intake air shaft. 29 FMSHRC 844, 861
(Oct. 2007) (ALJ).
We must decide whether substantial evidence supports Judge Manning's decision that the
District Manager's requirement of a refuge chamber in the mains was not arbitrary and
capricious. 1 In so doing, we bear in mind the manner in which the arbitrary and capricious
standard of review should be applied:
The scope of review under the "arbitrary .and capricious" standard is
narrow and a court is not to substitute its judgment for that of the
agency. Nevertheless, the agency must examine the relevant data
and articulate a satisfactory explanation for its action including a
"rational connection between the facts found and the choice made."
In reviewing that explanation, we must "consider whether the
decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment." Normally, an
1

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
30 FMSHRC 754

agency rule would be arbitrary and capricious if the agency has
relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise.

i.Jotor Vehicle Mfr 's. Ass 'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (citations ·
nnitted).

1.

The Alleged Lack of Ascertainable Standards

Twentymile argues that the District Manager's decision was arbitrary and capricious
1ecause the Secretary has "no ascertainable standards" for applying section 316 of the Act. T. Br.
•t 23-25. According to Twentymile, there are no ascertainable standards because the Secretary
tas not promulgated regulations for ERPs through notice-and-comment rulemaking. 2 Id. at 24.
Iowever, Twentymile's argument fails in consideration of the record in this case and our recent
lecision in Emerald Coal Resources, LP, 29 FMSHRC 956 (Dec. 2007).
As the judge noted, the District Manager's insistence on the establishment of a refuge area
1etween the portals and the 6 MN air shaft was consistent with guidelines published by the
~ecretary in an attachment to her Program Information Bulletin ("PIB") P07-03 (Feb. 8, 2007)
ntitled "Breathable Air Questions and Answers."3 29 FMSHRC at 860. The attachment stated:
As with air provided to miners at the working section, breathable air
should be provided to outby miners working in established work
positions within an inflatable chamber, barricade, or other
alternative that isolates miners from contaminated environments
.... To· increase the chances that outby miners could reach
breathable air supplies after an accident, District Managers
generally will be looking for breathable air locations to be located
not more than one hour travel distance from each other. This will
help assure that miners would not need to travel more than 30
minutes in either direction to reach a refuge area.

t., citing R. Ex. 57.

2

We note that the Secretary recently published a proposed rule addressing requirements
>rrefuge alternatives. 73 Fed. Reg. 34,140 (June 16, 2008).
3

The Secretary also published an attachment to PIB P07-03 entitled ''Methods for
roviding Breathable Air." R. Ex. 59.

30 FMSHRC 755

The record shows that after MSHApromulgated PIB 07-03, Twentymile submitted six
separate Emergency Response Plans, to which the District Manager responded in five separate
letters. 29 FMSHRC at 846-851. Discussions between the District Manager and Twentymile
lasted for six months and included telephone calls, e-mails, and meetings, as well as letters. See
Stip. 25-42 at 6-14; Tr. 156-57. In these negotiations, the District Manager spelled out the need
for a refuge chamber for the outby miners. The District Manager noted that the refuge chamber
for outby miners in the main entries would require only 72 hours of breathable air, in contrast with
the 96 hours of breathable air per miner in active gateroad and mains development locations.4 In
making this distinction:, the District Manager specifically noted the "specific circumstances and
conditions in which breathable air would be used at this location." Jt. Ex. 2 at 2. Twentymile's
argument that it lacked notice of the Secretary's requirements ultimately is belied by the fact that
the District Manager approved the ERP in its entirety, except on the issue of breathable air for
outby miners. 29 FMSHRC at 850; Jt. Ex. 2.
In Emerald Coal, the Commission noted that the MINER Act did not require notice and
comment rulemaking. We stated, "Indeed, the short time period provided for the submission of
ERPs following the passage of the MINER Act suggests that Congress did not intend for MSHA
to proceed by rulemaking." 29 FMSHRC at 970. We also held that operators had adequate notice
ofMSHA's position because of the written communications specific to the proposed ERPs. Id. at
971. Thus, it cannot be said that Twentymile had inadequate notice of the requirements for
breathable air. Indeed, ifTwentymile is correct that the Secretary acted in an arbitrary and
capricious manner because she has not promulgated regulations through notice and comment
rulemaking, every MSHA decision on an Emergency Rescue Plan anywhere in the country would
be vulnerable to attack.
2.

Substantial Evidence

We now turn to an examination of the evidence in this case to detennine whether the
decision of the District Manager was arbitrary and capricious. Twentymile argues that he did not
consider the specific conditions relating to the Foidel Creek Mine. However, Judge Manning
found ''that the [D]istrict [M]anager considered the specific conditions present in the outby areas
of the mine when he reached his decision to reject the proposed language in the plan dealing with
breathable air in outby areas." 29 FMSHRC at 859. The judge further determined that "[t]he
[D]istrict [M]anager took into consideration all of the safety features ... as well as the presence of
caches of SCSRs located along the intake entries and the availability of vehicles in the entries."
Id. at 860.
The consideration of whether Judge Manning's decision is supported by substantial
evidence involves two distinct factual issues - ( 1) whether there is a reasonable possibility that in

4

MSHA District 9 had originally required that the refuge chamber between the portals
and 6 MN air shaft provide 96 hours of breathable air, R Ex. 11, but after further consideration
reduced the requirement to 72 hours of breathable air. Jt. Ex. 2.
30 FMSHRC 756

the event of a fire or explosion, outby miners will be unable to escape through the portals, and (2)
whether, in the event of such inability to escape through the portals, outby miners will be unable
to reach the 6 MN intake air shaft. We will·address these two issues separately.
a.

Escape Through the Portals

It is uncontroverted thatFoidel Creek is a progressive mine with significant safety
features. MSHA's witness William Reitze acknowledged that fact in his testimony, Tr. 30, 57, as
did Judge Manning in his dec!sion. 29 FMSHRC at 859. Judge Manning nevertheless concluded
that there was a reasonable possibility that miners could be trapped by a mine accident between
the portals and the 6 MN air shaft. For example, a single event could contaminate the intake air in
the two escapeways, and thus block escape through the portals. Id. This determination is
supported by substantial evidence.
Reitze, the supervisory mining engineer for the ventilation section of the MSHA District 9
technical services branch, testified in detail about the possibility of a belt fire that would
compromise the stoppings, thus allowing smoke to travel into both escapeways. Tr. 29, 44-48.
He also voiced concerns about an equipment fire that could generate significant amounts of smoke
and possibly contaminated airthat would restrict miners from exiting at the portals. Tr. 29, 52-54.
In addition, Reitze testified about the possibility that float coal dust could be suspended into the
air, and, coupled with the possibility of a fire from either a belt or mechanical equipment fire,
create an explosion that would cause problems in the intake escapeways. Tr. 29-30, 55-56. The
District Manager relied on these scenarios in refusing to fully approve Twentymile's ERP. 29
FMSHRC at 859; Tr. 58.
MSHA Senior Fire Protection Engineer Derrick Tjernlund also testified as to how a fire
could start in the belt entry and how miners would not be able to escape through the portals. Tr.
123-27. In addition, he stated that the stoppings are not really built to be fire-resistant in
conditions which occur in actual mine fires. Tr. 128. Tjemlund also explained how an equipment
fire could occur, Tr. 135-38, and how an explosion could occur. Tr. 132-35. Tjemlund agreed
with Reitze that in the event of a belt fire, equipment fire, or explosion, it was reasonably possible
that outby miners could not escape the mine through the 1 MN portals. Tr. 129, 135, 138-39.
Judge Manning credited the testimony of Reize and Tjemlund that outby miners could be
trapped by a fire or explosion and thus be unable to escape through the 1 MN portals. 29
FMSHRC at 858. On issues of witness credibility, we are not permitted to substitute our
judgment for that of the administrative law judge. A judge's credibility determinations are
entitled to great weight and may not be overturned lightly. Farmer v. Island Creek Coal Co., 14
FMSHRC 1537, 1541(Sept.1992); Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981).
The Commission has recognized that, because the judge "has an opportunity to·hear the testimony
and view the witnesses[,] he [or she] is ordinarily in the best position to make a credibility
determination." In re: Contests ofRespirable Dust Sample Alteration Citations, 17 FMSHRC
1819, 1878 {Nov. 1995)(quoting Ona C01p. v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984)), affd

30 FMSHRC 757

sub nom. Secretary ofLabor v. Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998).
We would further note that Twentymile witness Robert Thorel Johnson, a mining engineer
who is Technical Safety Coordinator at the Foidel Creek Mine, agreed that there was a possibility
that outby miners could be prevented by a fire from escaping through the portals. Tr. 154-55, 169.
Twentymile's counsel conceded this possibility at oral argument. Oral Arg. Tr. 76-77. Moreover,
our colleagues do not appear to dispute that the Secretary has established the reasonable
possibility that outby miners could be prevented by a fire from escaping through the portals.
b.

Reaching the 6 MN Air Shaft

Having found that substantial evidence supports the ALJ's conclusion that there was a
reasonable possibility that outby miners could be prevented from escaping through the portals, we
next address whether these miners might not be able to reach the 6 MN intake air shaft.
It is almost four miles from the portals to the 6 MN air shaft, mostly at a very steep
downgrade slope. 29 FMSHRC at 858; Tr. 33-34, 42-43, 167. Thus, if escape through the portals
is impossible, miners would have to travel potentially three-and-a-half miles to get to the shaft.
29 FMSHRC at 860. Twentymile claims that the miners would not be trapped because they could
traverse this distance using motorized vehicles. T. Br. at 27-28. However, Judge Manning found
that the District Manager took into consideration the availability of vehicles in the entries. 29
FMSHRC at 860. In fact, Reitze, who helped evaluate Twentymile's ERP for District 9, Tr. 26,
was aware that vehicles were potentially available to be used to escape from the mine. Tr. 61-62. 5
Twentymile's Johnson, stated that "[i]n most cases" people evacuating the mine would be using a
vehicle," Tr. 162, which indicates that Twentymile does not contend that vehicles would be
available to all outbyminers. Similarly, at oral argument, Twentymile's counsel acknowledged
the possibility that miners could be isolated from the vehicles. Oral Arg. Tr. 33. It was not
unreasonable for the District Manager to conclude that there was no guarantee that all miners

5

Relying on our recent decision in Emerald Coal and the Supreme Court's decision in
State Farm, our colleagues insist that any rationale for the District Manager's decision to require
a refuge chamber in the ERP must appear within the four comers of his correspondence to the
operator, and that trial testimony "cannot supply post hoc rationales that are absent from the
District manager's decision." Slip op. at 39. Neither of these cases stand for this proposition. In
Emerald Coal, in holding that the Secretary's ERP requirements were reasonable and not
arbitrary and capricious, we relied on the testimony ofMSHA's lead reviewer of ERPs for the
relevant District, who stated at hearing why the District Manager insisted on the provision at
issue. 29 FMSHRC at 968-969. State Farm involved petitions for review of an agency decision
(after a lengthy rulemaking process) filed with the United States Court of Appeals. 463 U.S. at
39. In that case, the admonition that a court may not supply the basis for an agency decision
came in the context of appellate review of a rulemaking in which there were "no findings and no
analysis ... to justify the choice made." Id. at 48. There was no subsequent testimony offered
by the agency after its final rule was issued.
30 FMSHRC 758

would have access to vehicles if an evacuation were necessary. The District Manager prudently
insisted upon the refuge chamber as a safety measure for those miners who would need to
evacuate by walking along the escapeway. 6
·
The Secretary presented evidence that with smoke in the escapeways, miners who were
exhausted, injured and/or disoriented might not be able to walk the three-and-a-half miles to the 6
MN intake shaft. Tr. 48-50, 130. At the hearing, Reitze was asked about the type of entrapment
scenario that MSHA was particularly concerned about if both intake air escapeways became filled
with smoke. He responded:

If they were both to the point where they could not escape
through the portal areas, the individuals would have to travel a fair
amount of distance, all the way into the Six Main North escape
facility. While that is absolutely the preferable way to do it, if those
individuals were for whatever reason exhausted from trying to fight
the fire, or injured, or whatever, they may not be able to physically
get to the Six Main North escape facility.

You would be walking downhill for up to approximately
four miles, three and a half miles, to arrive at the escape facility, and
you would be walking, again, downhill most of the way. Some of
the areas could be very steep, as depicted by the 15 and 17 percent.
And if you had an injured person or whatever, it could be fatiguing
to get there. Or they may not be able to get to the Six Main North
facility at all due to the injuries.
Tr. 49-50.
Our colleagues cite to the testimony of MSHA supervisor Donald Gibson, stating that he
testified that ''walking inby would be 'downhill"' and it would be relatively "easy." Slip op. at 42.
However, that assessment was made in comparison to the effort it would take to exit the mine,
which he declared would be "tough ... It is uphill, the grade of the mine. It is a tough climb." Tr.
111. In any event, Reitze's compelling testimony, rebuts the contention that walking to the 6 MN

6

Indeed, in the preamble to its final rules on emergency mine evacuation, MSHA
explained how an evacuation may involve a combination of travel modes, including both walking
and mechanized transportation, and acknowledged that often mechanized transportation will be
utilized. However, MSHA emphasized that "[t]he unique· characteristics of the escapeways, [or]
conditions caused by the emergency ... may prevent the use of mechanized transportation.
Walking may be necessary in those circumstances." Emergency Mine Evacuation, 71 Fed. Reg.
71,430, 71,440 (Dec. 8, 2006).
30 FMSHRC 759

air shaft will be "easy." Walking for three-and-a-half miles on a steep slope, on uneven ground, in
intense smoke is not an "easy walk." Considering that miners could be exhausted, injured, and/or
disoriented, substantial evidence certainly supports the judge's determination that the District
Manager was not arbitrary or capricious in requiring a rescue chamber.
Quoting the "Breathable Air Questions and Answers" attached to the Secretary's PIB 0703, Ex. R. 57, our colleagues assert that "the Secretary has essentially directed District Managers
to base their decisions regarding the requirement for additional breathable air in outby areas solely
upon the distance over which miners would have to travel.'' Slip op. at 36. They additionally
assert that the Secretary would require "'breathable air locations to be located not more than one
hour travel distance from each other' so that miners 'would not need to travel more than 30
minutes in either direction to reach a refuge area."' Id. at 37 (citation omitted). In support of this
contention, our colleagues cite the statement by MSHA representative Hillary Smith that the
District Manager would not '"accept an ERP from Twentymile that failed to provide breathable
air in the main entries at Foidel Creek for travel distances exceeding 15,000 feet."' Id., citing
Stip. 32 at 8. Based on these assertions, our colleagues then argue that the "Secretary's policy for
outby miners effectively ignores the individualized approach to ERPs and miner safety that is
directed in the MINER Act" and avoids consideration of individual mine conditions, contrary to
the intent of Congress. Id. at 37-38.
Our colleagues' reference to the "Breathable Air Questions and Answers" is a red herring.
The issue is not whether the Secretary would require refuge chambers to be placed so that miners
would not have to travel more than 30 minutes. The Secretary here looked at this mine and
recognized, as Reitze testified, Tr. 49-50, that it is approximately 20,000 feet from the 1 MN
portals to the 6 MN air shaft, down a very steep slope. If the portals were blocked, and outby
miners had to walk three and a half miles, this would take far longer than 30 minutes. In 30
C.F.R. § 75.l 714-4(c)(2)(ii), addressing storage locations for caches of additional SCSRs in
escapeways, MSHA has provided a rule of thumb that the maximum distance one could expect
miners to travel in 30 minutes, in an entry where the miners could walk erect (as at Foidel Creek)
with grades not over 5 percent (which is not the case at Foidel Creek), is 5700 feet. If outby
miners were trapped near the portals at Foidel Creek, and had to walk to the 6 MN air shaft, it
would take at least one and a half hours (without adjusting for the steep grade), using the
regulation's rule of thumb. This is the fact that the Secretary looked at, rather than a theoretical
rule of not walking more than 30 minutes. 7 Thus, the Secretary did not avoid consideration of the

7

Our colleagues assert that, in the Stipulations agreed to by the Secretary, it was agreed
that ''the questions and answers were the basis for the District Manager's requiring Twentyrnile
to provide for breathable air beyond the SCSRs in the mains." Slip op. at 37 n.8, citing 29
FMSHRC at 847-48 (emphasis added). This is not a complete representation of the Stipulations.
As noted by Judge Manning, 29 FMSHRC at 848, Stipulation 32 states that MSHA's Hillary
Smith stated to Twentymile that given the Questions and Answers, "she did not think that
District Manager Davis would accept an ERP from Twentyrnile that failed to provide breathable
air in the main entries at Foidel Creek for travel distances exceeding 15,000 feet." The time it
30 FMSHRC 760

individual mine conditions at Foidel Creek.
c.

Alleged Inconsistency with a Refuge Chamber for·
the Active Longwall Section

Twentymile additionally argues that it was inconsistent, arbitrary and capricious for the
District Manager to require a refuge chamber in the mains while not requiring a refuge chamber
for the active longwall section. However, Judge Manning addressed this question, and found that
the distinction made by the District Manager was reasonable. 29 FMSHRC at 859. The ALJ's
decision in this regard is supported by substantial evidence. The testimony indicated that the
longwall section receives intake air from two independent sources from opposite directions,
unlike the intake air escapeways. Tr. 60-61, 87-88; J. Ex. 7. Miners in the longwall section can
escape in two opposite directions. Tr. 60. Consequently, unlike in the main entries, a single event
would not present the same chance of contaminating or disabling both means of escape from the
longwall section. Tr. 87-88. By contrast, the two separate escapeways in the main entries are no
longer separate if the stoppings and other ventilation controls become damaged or destroyed in a
fire or explosion. Tr. 47-48, 87-88, 128-29.
After weighing all of the evidence, Judge Manning concluded that the District Manager's
requirement of a refuge chamber approxirriately midway between the portals and the 6 MN shaft
was not arbitrary and capricious. 29 FMSHRC at 860-61. We agree, as the testimony discussed
above demonstrates, that the District Manager's decision to require the rescue chamber was not
"so implausible that it could not be ascribed to a difference in view or the product of agency
expertise." Motor Vehicles Mfr 's. Ass 'n, 463 U.S. at 43.
The Secretary conceded that it was not likely that a chain of events would occur whereby
the outby miners are prevented from escaping through the portals because of a fire, and are then
unable to reach the 6 MN shaft to escape. Tr. 30.· But the issue is not the likelihood that such
events will occur. The question is whether there is a "reasonable possibility" such events might
occur. With that standard in mind, we conclude that substantial evidence supports Judge
Manning's determination that the District Manager's refusal to accept Twentymile's proposal on
breathable air in the outby area of the mine was not arbitrary and capricious.
3.

The Legal Standard

In their discussion of the applicable law, our colleagues posit a two-step test to evaluate
whether MSHA acted in an arbitrary and capricious manner in requiring Twentymile to make
provisions in its ERP for a refuge chamber (i.e., breathable air beyond that provided by SCSRs) in
the mains between the portals and the 6 MN air shaft. The first inquiry, according to them, is to
determine whether the breathable air requirement in section 3 l 6(b)(2)(e)(iii) is ''triggered in the

would take outby miners in the Foidel Creek mains to walk to the 6 MN air shaft would be
approximately three times the maximum 30 minutes referred to in the Questions and Answers.
30 FMSHRC 761

outby areas in this case." Slip op. at 33. This inquiry is not limited to the needs of trapped
miners, as section 316(b)(2)(e)(iii), to which they refer, contains all of the breathable air
provisions of the Act, both those relating to trapped miners and those relating to miners who
evacuate. Thus, in effect, their first inquiry includes the question: are SCSRs even required at
all? The second prong of our colleagues' proposed standard is whether, if the requirement for
breathable air is "triggered," the ERP must provide for breathable air beyond SCSRs. Slip op. at
33. This is the inquiry relating to trapped miners, who are referred to only in section
316(b)(2)(E)(iii)(I). With regard to the first inquiry, our colleagues say that the legal standard is
whether there is a "reasonable possibility" that the breathable air requirements would be triggered.
Slip op. at 33-34. However, with regard to the second inquiry, our colleagues say that the
standard involves a weighing of"likely risks." Our colleagues further state the two-step test that
they posit, and the legal standards for each test, are directly mandated by Congress. Id. at 34-35.
The initial problem with our colleagues' formulation is that the first step of their two-step
test is not an "inquiry'' which involves a "trigger." Rather, it is a given, mandated by the statute in
every ERP. The MINER Act's provision for "POST-ACCIDENT BREATHABLE AIR," section
3 l 6(b)(2)(E)(iii), provides that an ERP "shall provide for" various safety features including, in
subsection (II), "caches of self-rescuers providing in the aggregate not less than 2 hours per miner
to be kept in escapeways from the deepest work area to the surface at a distance of no further than
an average miner could walk.in 30 minutes." 30 U.S.C. § 876(b)(2)(E)(iii)(II). In other words,
every ERP for every underground mine must provide caches of SCSRs from the deepest part of
the mine to the surface at intervals which an average miner could reach in walking for 30 minutes.
This is because Congress has already made the initial determination that enough risk exists in
every mine to require SCSRs. There is neither an "inquiry" nor a "trigger" under the statute, as
our colleagues posit. Otherwise, it would be possible to have an ERP with no provision
whatsoever for SCSRs. Hence, the only true question is what our colleagues have characterized
as the second one, i.e. whether the ERP must provide, under subsection (I), emergency supplies of
breathable air beyond SCSRs for trapped miners (in this case, a refuge chamber).
As noted above, our colleagues would apply a "reasonable possibility'' standard to their
first inquiry and a "likely risk" standard to their second inquiry. However, since their first
"inquiry'' is not an inquiry at all, this would in effect read the "reasonable possibility'' standard out
of the analysis. They have in effect created a straw man - a need to undertake an inquiry as to
whether something is required, when the clear statutory language already mandates it. Having
earlier assented to the use of the "reasonable probability test," slip op. at 17-18, they now relegate
its application to a meaningless inquiry, as the statutory language universally and emphatically has
already answered the question they pose. Consequently, under their analysis, all that would be left
is our colleagues' standard involving the weighing of"likely risks" to determine if a refuge
chamber is required as part of an ERP. The discussion in section II.C.2. of our joint opinion
becomes essentially irrelevant to their analysis, as they have rendered the application of a
"reasonable possibility'' test a nullity.

Our colleagues state that the Secretary did not offer an interpretation of the statute that
addresses the test to be used to determine whether breathable air beyond SCSRs is required. Slip
30 FMSHRC 762

op. at 35. This assertion is incorrect. In urging adoption of a "reasonable possibility'' test, the
Secretary did not concern herself with the irrelevant first question posed by our colleagues.
Rather, as discussed in detail in her brief, the Secretary focused on the legal standard to be applied
in determining when emergency supplies of additional breathable air are required for miners who ·
are "trapped underground." S. Br. at 20-27, citing 30 U.S.C. § 876(b)(2)(E)(iii)(I). In this
context, the Secretary argued that breathable air beyond SCSRs is required ''where miner
entrapment is a reasonable possibility." S. Br. at 20 (emphasis in original).
In addition, our colleagues state that their two-step test, and their related use of the
"reasonable possibility'' and "likely risk' standards, are mandated by Congress because "Congress
has directly spoken to the question." Slip op. at 34-35. However, in rejecting the Secretary's
Chevron I analysis of the test to apply to determine when the breathable air requirement applies,
all Commissioners agreed in our joint opinion that "the statute appears to be silent on the point in
question," id. at 18, and stated that ''we are not convinced that Congress directly spoke to the issue
of what test should be used in determining when additional breathable air should be required in
case miners are trapped." Id. at 17. We added that "[w ]here, as here, the statute appears to be
silent on the point in question, a Chevron II analysis is therefore appropriate," id. at 18, and
because the Secretary offered a reasonable interpretation of the test to be used to ascertain the
need for breathable air for trapped miners, we adopted it. Consequently, we are puzzled by our
colleagues' subsequent assertion that, on the issue of"whether ... breathable air beyond ...
SCSRs" is required, they believe that "Congress directly spoke to that issue," id. at 34, in a
manner inconsistent with the views expressed earlier.

We also question our colleagues' analysis of the legislative history. To read their
description of the relevant standard to apply, it would appear that Congress had clearly set out, in
chronological order, two separate tests: a consideration of "possible incidents" at a mine and then
an analysis of "likely risks" to miners from such incidents. Id. at 33, 34. Congress did nothing of
the sort. Although, as we acknowledged in our joint opinion, the standards articulated in the
Senate Report could appear confusing, id. at 17-18, it is clear to us that they were not written as
our colleagues imply. In the general introductory section of the Senate Report on "Breathable
air," the Senate Committee did indeed state that ''with regard to an entrapment, the act requires
that emergency plans analyze likely risks to determine if breathable air beyond the increased
stores of SCSRs is necessary." S. Rep. at 6. However, in the sole paragraph devoted to Subpart
(I) of the legislation (regarding breathable air for trapped miners), the Report states that "the
committee believes an emergency plan should address possible incidents and the attendant need
for sufficient breathable air." Id. We fail to see how the introductory language can be cobbled
together with the relevant language in the section analyzing Subpart (I) of the breathable air
provisions to somehow create the two-step process put forth by our colleagues. Slip op. at 33.

30 FMSHRC 763

B.

Whether the Judge Erred in Granting the Secretary's Motion In Limine

The final issue involves Twentymile's challenge to the judge's decision in granting the
Secretary's motion in limine. Prior to the hearing, the Secretary filed a motion to prevent
Twentymile from presenting evidence relating to the approval ofERPs with post-accident
breathable air provisions for main entries in at least six other MSHA districts. Mot. at 1; T. Resp.
at 1-2. The Secretary argued that the other plans were of "no relevance" to this proceeding and
further noted that each ERP "must 'account for the specific physical characteristics of the mine.'"
Id. at 2, quoting 30 U.S.C. § 876(b)(2)(C)(iii). The judge granted the Secretary's motion at trial.
Tr. 80-81. Twentymile's counsel made an offer of proof, indicating that the ERPs that he sought to
put into evidence would show that other MSHA districts had ERPs for large longwall mines
without refuge chambers with breathable air where there were multiple ways out of the mine. Id. at
82. See R. Ex. 70-75.

In his decision, the judge affirmed his trial ruling, reiterating that the scope of the
proceeding was whether the District Manager's rejection of the ERP was arbitrary and capricious
and that the evidence Twentymile sought to introduce would be of little probative value. 8 29
FMSHRC at 860. The judge concluded, "Even if two mines were similar, the only issue in the
present case would be whether District Manager Davis acted reasonably." Id.
Before the Commission, Twentymile's primary argument is that the rejected evidence
would demonstrate that the Secretary acted improperly in requiring Twentymile to have a refuge
chamber in the main entries. 9 T. Br. 11-14. In response to Twentymile, the Secretary argues that

8

Commission Procedural Rule 63(a) states that "[r]elevant evidence ... that is not
unduly repetitious or cumulative is admissible." 29 C.F.R. § 2700.63(a). The judge's reference
to the rejected exhibits as not being "probative" is essentially the same standard as the relevance
standard in Rule 63(a). Moreover, as one noted commentator has explained "relevance does not
ensure admissibility." 1 Kenneth S. Broun, ·McCormick on Evidence§ 185 (6th ed. 2006).
Much evidence is excluded on the ground that the costs outweigh the benefits, such as when ''the
evidence offered and the counterproof could consume an inordinate amount of time." Id.
At oral argument, counsel for Twentymile indicated he would "actually want to depose all
nine district managers and the like" because if he could "provide some evidence of inconsistency
... that's appropriate for the judge to hear." Oral Arg. Tr. 16. He agreed, in response to
comments from the bench, that to present this issue fully (''to do it right") would involve
extensive testimony about the similarities and differences in each of the mines that counsel
wished to compare to Twentymile and could require an additional week of trial. Id. at 16-17.
Clearly the judge could appropriately decide that the costs of this evidence would outweigh its
benefit.
9

We find no merit to Twentymile's equal protection argument that it contends would be
supported by the evidence excluded by the motion in limine. Our conclusion that the District
30 FMSHRC 764

e District Manager's plan approval is largely based on mine specific factors and the "'substance
td timing'" of the negotiating process. S. Br. at 44 (citation omitted).
When reviewing a judge's evidentiary ruling, the Commission applies ari abuse of
scretion standard. Pero v. Cyprus Plateau Mining Corp., 22 FMSHRC 1361, 1366 (Dec. 2000).
\.pplying an abuse of discretion standard is consistent with the discretion accorded judges in
atters related to the conduct of a trial." MarforkCoal Co., Inc., 29 FMSHRC 626, 634 (Aug.
)07) (citation omitted). Abuse of discretion may be found when there is no evidence to support
e decision or if the decision is based on an improper understanding of the law. Pero, 22
VISHRC at 1366 (citations omitted).
Applying this standard to the judge's denial of the admission of these other plans into
ridence (and the related examination that would accompany their admission), we conclude that
e judge did not abuse his discretion in denying their admission. We agree with the judge that the
:eluded evidence would not have been probative in showing whether the District Manager acted
asonably. 29 FMSHRC at 860. The judge correctly noted that, in approaching the approval of
·eathable air provisions at individual mines, it is unlikely that two underground coal mines would
1resent exactly the same factual situation." Id. The location and method of providing breathable
r in an ERP is based ultimately on mine specific circumstances. Indeed, the legislative history of
e MINER Act and the portion of the breathable air provisions for trapped miners in section 316
ates, "The projected need [for breathable air] is obviously fact specific." S. Rep. at 6.
Our colleagues suggest that the proffered evidence was admissible because Reitze
dmitted that when reviewing Twentymile's plan, members of the District 9 office looked to see
hat other distracts were approving and were aware of approved plans without supplies of
·eathable air in mines with multiple ways out." Slip op. at 44. While this is a correct statement, it
incomplete. Reitze also testified that he was aware of such approved plans only where miners
ould have to walk distances ofless than 20,000 feet. Tr. 73. Significantly, in his offer of proof,
1unsel for Twentymile· did not indicate that any of the approved plans which he was seeking to
troduce in evidence involved a mine in which miners would have to travel a distance comparable
the 20,000 feet between the portals of the Foidel Creek Mine and the 6 MN air shaft. Tr. 82.
Moreover, we are concerned about where such evidence would lead. District Managers are
dividuals. Like baseball umpires, they each have a slightly different strike zone. Additionally,

lfanager' s refuge chamber requirement in the ERP was not arbitrary and capricious largely
1ilitates against a determination that the same conduct violated principles of equal protection.
'ee Emerald Coal, 29 FMSHRC at 972 n.19. With regard to Twentymile's due process
rgument, in Emerald Coal the Commission rejected a similar due process argument because the
perators there had actual notice of the Secretary's position on the breathable air provisions in
ie MINER Act through extended negotiations. Id. at 971. We see no discernible difference
etween Twentymile's position in this proceeding and the position taken by the operators in
:merald Coal.
30 FMSHRC 765

there are differences from mine to mine, and the ERP for each mine must be considered on its owr
merits. Ifwe tell administrative law judges that, in weighing whether a particular District Manage
acted in an arbitrary and capricious manner, they should consider what other District Managers do
in allegedly comparable situations, it would encourage a race to the bottom. That is, a District
Manager would necessarily have to be looking over his or her shoulder to consider whether his or
her decision would eventually be found arbitrary and capricious because it was more stringent than
the decision of another District Manager. A District Manager in this situation would have an
inducement to shade the requirements of the law in an operator's favor so as to avoid unfavorable
comparison with other. District Managers. This would lead to the standard essentially being set by
the most lenient District Manager, a process which would be detrimental to mine safety.

In light of the foregoing, the judge did not err in granting the Secretary's motion in limine. tc
C.

Conclusion

For the foregoing reasons, we would affirm the judge's determination that Twentymile
include a refuge chamber near the midpoint between the portals and the 6 MN intake air shaft, as
required by the MSHA 9 District Manager.

Robert F. Cohen, Jr., Commissioner

10

We do not hold that evidence of the provisions of other approved ERPs would never
be admissible in an ERP dispute proceeding. Rather, we conclude only that the judge did not
abuse his discretion in excluding such evidence in this case.

30 FMSHRC 766

Chairman Duffy and Commissioner Young, in favor of reversing the decision of the administrative
law judge:

A.

Whether the District Manager's Action in Refusing to Approve
Twentymile's ERP without a Provision for a Refuge Chamber in the Main
Entry Was Arbitrary and Capricious

At the outset, we recognize that the Secretary and MSHA were and are under strong public
and Congressional pressure to implement the provisions of the MINER Act as expeditiously as
possible. We further note that Congressional guidance on implementing tnany of the provisions of
the MINER Act is limited. Terse though it may be, the legislative history of the MINER Act,
nevertheless, does set forth certain principles for determining how ERPs should be developed,
reviewed, and implemented. Slip op. at 12-14.
As discussed above, id. at 17-18, we have upheld the Secretary's use of a "reasonable
possibility" test to determine the possible occurrence of an event giving rise to a mine emergency
and the "attendant need for sufficient breathable air." S. Rep. at 6. However, our inquiry cannot
stop there in this proceeding. In reviewing the District Manager's decision to disapprove the ERP,
we must further examine whether additional breathable air was needed in the mains, beyond the
additional caches ofSCSRs already required by the Act and the ERP, in the event of a mine
emergency. Moreover, the scope of our review under the "arbitrary and capricious" standard
encompasses the question of whether legal and/or factual errors occurred in the District Manager's
analysis of the relevant factors in this case. See cases cited, slip op. at 14 & n.6.
As explained below, we conclude that the District Manager's decision was "arbitrary and
capricious" because it contained both legal and factual errors. In particular, the District Manager
failed to consider relevant mine-specific factors in this case contrary to congressional intent or to
explain why those factors need not be. considered. In addition, the legal approach utilized by the
District Manager and supported by the Secretary contravened Congress's directive that the
Secretary base her decision regarding whether additional breathable air beyond the increased
numbers of SCSRs be based on a risk analysis considering mine-specific factors. Finally, the
judge's conclusion that the District Manager did properly consider all relevant factors is clearly not
supported by substantial evidence.

1.

Legal Errors

Congress made clear that ERPs would be based on the "plan" model used in other parts of
the Mine Act. In its overall guidance regarding the ERP development and approval process, the
committee report accompanying the passage of the MINER Act states:

30 FMSHRC 767

The individual plan model contemplates that safety solutions and
risk-management plans will be designed and reviewed by those who
are "on the ground," and therefore most familiar with the unique
circumstances and most practical approaches.
S. Rep. at 4. Thus, Congress intended that, in the development, review, and approval ofERPs,
local MSHA representatives would carefully weigh potential risks and then determine appropriate
measures based on the conditions and capabilities in each individual mine, i.e., mine-specific
factors.

The central question in this case is whether Twentymile' s ERP must provide breathable air
beyond the increased numbers ofSCSRs (i.e., whether it must require a refuge chamber) in the
outby areas in the main sections. The answer to this question turns on two separate inquiries.
First, whether as an initial matter the breathable air requirement for mine emergencies in section
316(b)(2)(E)(iii) of the Mine Act is triggered in the outby areas in this case. Second, whether, if
the requirement is triggered, the ERP must provide for breathable air beyond SCSRs. 1
With regard to the first question, the committee report states that MSHA and the operator
must address the need for breathable air to enable all miners to exit the mine "under emergency
circumstances." S. Rep. at 7. More particularly, Congress called on MSHA to first address the
"possible incidents" that would trigger ''the attendant need for sufficient breathable air." Id. at 6.
The Secretary in her brief stated that she interpreted the MINER Act as providing for the
use of a "reasonable possibility" test to determine whether the breathable air requirement in section
316(b)(2)(E)(iii) is triggered in a particular area of a mine. S. Br. at 20-28. As discussed above,
we agree that the Secretary's "reasonable possibility" test is a permissible reading of the statute

1

Section 316(b)(2)(E)(iii) states that with regard to "post-accident breathable air'' an
ERP shall provide for:
(I) emergency supplies of breathable air for
individuals trapped underground sufficientto
maintain such individuals for a sustained period of
time;
(II) in addition to the 2 hours of breathable air per
miner required ... under the emergency temporary
standard . . . caches of self-rescuers providing in
the aggregate not less than 2 hours per miner to be
kept in escapeways from the deepest work area to
the surface at a distance of no further than an
average miner could walk in 30 minutes ....

30 U.S.C. § 876(b)(2)(E)(iii)(I) and (II).
30 FMSHRC 768

under a Chevron II analysis. 2 Thus, based on mine-specific factors, the Secretary, acting through
the District Manager, was to determine whether the breathable airrequirement was triggered in the
outby area of the Foidel Creek Mine. Our examination of the record indicates that there was a
reasonable possibility that the breathable air requirement would be triggered. See 29 FMSHRC at
859.
With regard to the second question - whether the ERP must provide for breathable air
beyond that which will be provided by SCSRs - the initial issue is what test is to be applied to
determine whether such additional breathable air is necessary. We conclude that Congress directly
spoke to that issue under Chevron /. The Senate committee report explained that the MINER Act
increases the amount of breathable air required, through a greater number of SCSRs stored
underground ''both in the event of escape and entrapment." S. Rep. at 6. However, to address the
further possibility of entrapment, Congress expressly stated that ERPs must also analyze "likely
risks" to determine the extent to which additional breathable air is necessary:
In addition, with regard to an entrapment, the [MINER] [A]ct
requires that emergency plans analyze likely risks to determine if
breathable air beyond the increased stores of SCSRs is necessary;
and, if so, by what means cart the goal be attained.
Id. 3 Congress further recognized that there will be "diverse ... means by which a goal of
additional breathable air can be achieved," including the "use of additional caches of SCSRs ...
[or] secure refuge areas .... " Id. at 7.

Thus, Congress clearly stated that, if MSHA determines that the breathable air requirement
is triggered in a particular situation, MSHA must then conduct an analysis of "likely risks"
affecting miners in an emergency to ascertain whether additional breathable air beyond SCSRs,

2

However, we disagree that the "reasonable possibility" test governs the analysis of all
successive events following a fire, explosion, or roof fall, such as miner injuries, the use of
escapeways, and the failure of fire suppression systems. As we show below, such an approach
ignores the risk analysis mandated by Congress.
3

Our colleagues question our use of the quoted portions of the committee report, which
appears under the heading "Breathable Air." Slip op. at 28. By its own language, the committee
report plainly addresses the need for breathable air in the circumstance of entrapment along with
the accompanying risk analysis. There is nothing to suggest that the language does not mean
what it says. In addition, our colleagues state that the "reasonable possibility" test is limited in
application to trapped miners. Id. Once again, the committee report is clear in addressing the
needs of all miners for breathable air in light of the possibility of a mine accident: "The
[MINER] [AJct increases the quantity of [SCSRs] ... and thus, increases the amount of
breathable air available to underground personnel both in the event of escape and entrapment."
S. Rep. at 6.
30 FMSHRC 769

e.g., a refuge chamber, must be required by the particular ERP. 4 fu other words, Congress
envisioned a two-step process in determining whether breathable air beyond SCSRs is required in
an ERP: a consideration of "possible incidents" at a mine and, if the breathable air
requirement is triggered, an analysis of"likely risks" to miners from such incidents based on minespecific factors.
Our colleagues apparently misunderstand the two-step process for determining how an ERP
is to address the question of how much breathable air is necessary in a particular mine area. They
contend that the first step of the two-step test "is a given, mandated by the statute in every ERP"
and therefore is supposedly meaningless. Slip op. at 27. We recognize that in subparagraph (II) of
section 3 l 6(b)(2)(E)(iii) Congress provided that a required number of SCSRs must be placed in
every mine, but this requirement is clearly independent from the breathable air requirement in
subparagraph (I). Thus, the inquiry that arises under subparagraph (I) is whether additional
breathable air is necessary, how much is needed, and how should it be provided. Congress made
clear that, to address those questions, MSHA is to first look at "possible incidents" that might
require sufficient breathable air (which can be based on a "reasonable possibility test"). S. Rep. at
6. Once those incidents are identified, Congress explicitly called for an analysis of"likely risks"
based on mine-specific conditions so that MSHA and the operator could ascertain whether and
how much additional breathable air is necessary and how it should be provided, e.g., through
additional SCSRs, through refuge chambers, or through some other means. Id.
We note that the Secretary did not offer an interpretation of the statute that addresses the
test to be used in specifically determining whether breathable air beyond SCSRs is required. 5
Rather, the Secretary's interpretation in her brief addresses only the initial question of whether the
breathable air requirement is triggered, not whether breathable air beyond SCSRs is required. fu
particular, the Secretary states: "Applying the language of the MINER Act, its legislative history,
and its safety purpose, the Secretary required that Twentymile's ERP provide breathable air where
miner entrapment is a reasonable possibility" (emphasis in original). S. Br. at 20. fu any event,

4

We do not believe that Congress intended that the risk analysis would be extremely
detailed or extensive or that it should impose a substantial burden on MSHA. Rather, in
conducting the risk analysis, the District Manager should simply consider all the relevant minespecific factors that would affect miners' ability to escape in a serious mine emergency and
explain how those factors impact on the need for breathable air beyond SCSRs. These factors
would include such considerations as the placement and number of SCSRs, alternative means of
escape, distances to be traveled, safety measures that are present at the mine, and any unusual
safety hazards at the mine.
5

Moreover, the Secretary's approach to the breathable air requirement in section
316(b)(2)(E) offers no assistance to her District Managers (or mine operators) in reconciling the
dual requirements for additional SCSRs to evacuating miners, who may be unable to exit a mine
(and may then be "trapped"), and providing additional air to trapped miners who must be
sustained underground until rescue.
30 FMSHRC 770

because Congress has directly spoken to the question, there is no reason to remand the issue to the
Secretary. Under Chevron I, the reasonableness of the Secretary's interpretation is to be
considered only when Congress has not directly spoken to the question involved. Chevron, 467
U.S. at 843-44.
Rather than analyzing "likely risks" and mine-specific factors to determine whether
breathable air beyond SCSRs is required, the Secretary has essentially directed District Managers
to base their decisions regarding the requirement for additional breathable air in outby areas solely
upon the distance over which miners would have to travel. In other words, the Secretary has
effectively established a binding norm to govern all ERPs regardless of mine-specific conditions.6
In "Breathable Air Questions and Answers," which were attached to the PIB that addressed
breathable air for trapped miners, the Secretary requires that "outby miners" be provided breathable
air ''within an inflatable chamber, barricade or other alternative that isolates miners from ·
contaminated environments. " 7 29 FMSHRC at 860, quoting R. Ex. 57 at 1. Further, the Secretary

6

Our colleagues rely upon Emerald Coal, 29 FMSHRC at 970, in attempting to show
that notice-and comment-rulemaking was not required to implement ERP requirements and
therefore that the Secretary could proceed to require refuge chambers based on certain statements
contained in the question and answer documents discussed, infra. Slip op. at 21. However, the
situation in Emerald was very different. fu that case, operators were given various options in
deciding how to comply with breathable air requirements and the issue before the Commission
was only a timing issue, i.e., when should operators be required to commit in their ERPs to
following the refuge chamber option they had freely chosen. fu this case, the Secretary has
effectively established a firm requirement to use a refuge chamber in an outby area based on
nothing more than the distance to be traveled by miners, and the District Manager has not
meaningfully considered relevant mine-specific factors.
7

The only guidance that the Secretary issued with regard to breathable air primarily
addressed trapped miners in working sections. Thus, the PIB, which MSHA issued to provide
guidance on the breathable air provisions of the MINER Act, dealt with the location and quantity
of breathable air located within 2000 feet of the working section, not in outby areas such as those
involved here. See PIB P07-03 at 1-2. This is also consistent with the Secretary's approach in
the Program Policy Letters ("PPL"), which were issued prior to the PIB. See PPL No. P06-V-8 at
2-3 (7/21/06); PPL No. P06-V-9 at 2-3 (8/04/06); and PPL No. P06-V-10 at 3-4, 5 (10/24/06). fu
the PPLs, the Secretary addressed the needs of miners in outby areas of mines by requiring
increased numbers of SCSRs for evacuation. Id.
The Secretary further addressed the breathable air requirement for outby miners only in the
"Breathable Air Questions and Answers," a multi-paged document attached to the PIB that
contained 73 questions and answers. R. Ex. 57. There, the Secretary for the first time stated that
"refuge areas" should be provided at "every other cache of SCSRs (1 hour intervals)." Id. at 1.
This distance-driven requirement became the "norm" for the District Manager, who refused to
30 FMSHRC 771

states that "District Managers generally will be looking for breathable air locations to be located
not more than one hour travel distance from each other" so that miners ''would not need to travel
more than 30 minutes in either direction to reach a refuge area." Id. At the local level, Hillary
Smith, a representative of the MSHA District Manager, told Twentymile that, based on the
questions and answers attached to the PIB, "she did not think that the [District Manager] would
accept an ERP from Twentymile that failed to provide breathable air in the main entries at Foidel
Creek for travel distances exceeding 15,000 feet." Stip. 32 at 8. The plan was, in fact,
subsequently rejected on that basis. 8
In affirming the MSHA District Manager's refusal to approve Twentymile's ERP, the judge
also relied on the breathable-air questions and answers. 29 FMSHRC at 860. The judge stated that
"the [D]istrict [M]anager's insistence on the establishment of a refuge area in the mains between
the portal and 6 MN is consistent with this guideline." Id. However, the judge did not address the
issue of whether use of the questions and answers was consistent with Congress' approach in
section 316(b)(2)(E).
The Secretary's policy for outby miners effectively ignores the individualized approach to
ERPs and miner safety that is directed in the MINER Act and the committee report that
accompanied it. S. Rep. at 3, 4. Compare Peabody I, 15 FMSHRC at 386-87 (substantial evidence
supported judge's finding that deep cut ventilation provision was mine-specific because of mines'
high methane liberation rate). Further, by simply assuming the presence of adverse conditions that
would make it impossible to evacuate, the Secretary has failed to implement the risk analysis
mandated by the MINER Act to determine the amount of breathable air that would be needed for
miners who face the possibility of a mine emergency and may be evacuating the mine or trapped.
Thus, once the District Manager concluded that there was a ''reasonable possibility'' of a fire in the
mine that could block miners from exiting through the portals, he then had to "analyze likely risks
to determine if breathable air beyond the increased stores of SCSRs is necessary." S. Rep. at 6.
This he failed to do. Instead, the District Manager only considered the distance that outby miners

approve Twentymile's ERP because it failed to provide for refuge chambers in the main sections
for outby miners.
8

Our colleagues assert that the "Breathable Air Questions and Answers" attached to the
Secretary's PIB is a "red herring." Slip op. at 25. However, that statement is not borne out by
the record, which indicates (in stipulations agreed to by the Secretary) that the questions and
answers were the basis for the District Manager's requiring Twentymile to provide for breathable
air beyond the SCSRs in the mains. 29 FMSHRC at 847-48; Stip. 32 at 8. Moreover, as the
judge held, after quoting from the questions and answers in the PIB, "The [D]istrict [M]anager's
insistence on the establishment of a refuge area in the mains ... is consistent with this
guideline." 29 FMSHRC at 860.
30 FMSHRC 772

would have to travel to evacuate, rather than specific mine conditions. 9 This approach is contrary
to Congressional intent in drafting the MINER Act. Therefore, we conclude that the Secretary's
approach was erroneous as a matter of law.
Finally, as we have stated, we agree with the Secretary's reading of''trapped" in the
MINER Act in light of a mine emergency. However, the application of that term, without more,
does not require an operator to provide a refuge chamber with breathable air for all miners who
face the possibility of a mine emergency, such as a fire, irrespirable air, or a roof fall. To
mechanically require, as the Secretary did here, a refuge chamber in the event that outby miners
have to travel more than one hour to reach a mine exit or evacuation point fails to undertake the
risk analysis required by the MINER Act and avoids consideration of individual mine conditions,
contrary to the intent of Congress.
As we further show below, the record shows that the District Manager failed to properly
analyze the specific conditions at the Foidel Creek Mine and the need for breathable air beyond
SCSRs. Moreover, the District Manager ignored that miners who may be unable to exit a mine
through the portals inay still be evacuating the mine through emergency exits, such as the 6 MN
intake air shaft. In that scenario, the breathable air requirement could be satisfied byincreased
numbers of SCSRs rather than a refuge chamber.
2.

Substantial Evidence

Based on our review of the record, we conclude that the District Manager failed to consider
the specific conditions at the Foidel Creek Mine and failed to provide an explanation for why he
did not do so. Where, as here, the Secretary has determined to proceed by issuing PPLs, a PIB, and
informal questions and answers, rather than by notice-and-comment rulemaking, it is incumbent on
District Managers to clearly explain their rationale for the imposition of district-wide or agencywide standards in ERPs and how all relevant mine-specific factors were considered in reaching a
final decision. See Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970),
cert. denied, 403 U.S. 923 (1971) (fu deciding relevant issues before it, an administrative agency
must establish that it "has taken a hard look at the issues with the use of reasons and standards.").
As the D.C. Circuit has explained:
[The arbitrary and capricious standard] requires an agency to
"examine the relevant data and articulate a satisfactory explanation

9

The Secretary incorrectly asserts that any foreseeable circumstance - e.g., fatigue,
injury, irrespirable air, or limited visibility- would constitute grounds for assuming that escape
would be impossible. S. Br. at 37, 40-41. Rather, those are circumstances that would make
escape difficult but nevertheless possible - particularly in light of new requirements of the
MINER Act relating to increased deployment of SCSRs, lifelines, and increased training of
miners, as well as measures taken by the operator beyond those required by the MINER Act. See
71 Fed. Reg. at 71,430-431.
30 FMSHRC 773

for its action including a 'rational connection between the facts
found and the choice made.'" The "agency must cogently explain
why it has exercised its discretion in a given manner," and that
explanation must be "sufficient to enable us to conclude that the
agen~y's action was the product of reasoned decisionmaking."

Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006) (subsequent history omitted), quoting
Motor Vehicle Mfr's Ass 'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 48 (1983) (citations
omitted).
As discussed below, we disagree with the judge's determination that the District Manager
"considered the specific conditions present in the outby areas of the mine." 29 FMSHRC at 859.
More particularly, it is not apparent that the District Manager considered at all the availability of
vehicles in the outby areas of the mine to use to evacuate miners during mine emergencies.
At the outset, it is important to recognize that the District Manager is the decisionmaker in
this case and that it is his written decision that must supply the rationale for MSHA's action in
disapproving the ERP. fu this regard, our examination of the approval process must properly focus
in the first instance on the actions of the District Manager, not the judge. See Emerald, 29
FMSHRC at 968 ("fu determining whether MSHA's determinations were arbitrary and capricious,
we examine the circumstances before the MSHA District Manager when he considered the
Operators' final revised ERPs ... .");see also State Farm, 463 U.S. at 43 ("The reviewing court
should not attempt itself to make up for such deficiencies [in the agency's decision]; we may not
supply a reasoned basis for the agency's action that the agency itself has not given." citing SEC v.
Chenery Corp., 332 U.S. 194, 196 (1947)). Although the testimony provided at a hearing on an
ERP may be useful in determining whether factual assertions made by the District Manager are
accurate and whether his conclusions are reasonable, the testimony cannot supply post hoc
rationales that are absent from the District Manager's decision. 10
On June 14, 2007, Twentymile submitted a revised ERP in which it responded to the
District Manager's concern about providing for breathable air in the main entries. Twentymile's
proposed ERP provided, "The main entries are outfitted with two separate intake escapeways, each
travelable with diesel pickup mantrips, each containing caches [of over 1500 SCSRs] sufficiently
spaced for individuals walking ~d for the number of personnel working inby that point." 29
FMSHRC at 849, quoting R. Ex. 10 at 4. fu his response, the District Manager rejected

10

Our colleagues discuss at great length testimony provided at the hearing in order to
support their position regarding whether there is a reasonable possibility of miners being trapped.
We note that the testimony cannot supply a legal or factual rationale for the District Manager's
decision that may be missing from the decision itself. In addition, we note that, when the
Secretary's witnesses were asked about the probability of specific emergency scenarios that
MSHA considered at the Foidel Creek mine, they consistently admitted that the scenarios were
not likely to occur. See Tr. 30, 57, 70, 139-140, 142-143.

30 FMSHRC 774

Twentymile's plan, noting that with regard to the main entries the distance of 10,000 to 15,000 feet
was too great not to maintain post-accident breathable air and that two isolated escapeways "do not
provide the same amount of protection as breathable air." 29 FMSHRC at 849-50, quoting R. Ex.
11at2.
Without any explanation whatsoever, the District Manager apparently concluded that diesel
equipment and pickup trucks could not be driven during any type of mine emergency. See 29
FMSHRC at 849-50. Similarly, the judge did not consider the use of motorized vehicles when he
reviewed the distances that miners would have to walk. Id. at 859. In its brief, Twentymile notes
that dense smoke would make it more difficult to walk, thereby making it more expeditious to
drive. T. Br. at 27-28 & n.10. 11 Miners in the main sections generally traveled in pairs with a
vehicle. Tr. 160-61. In addition, there were emergency vehicles parked at locations inby the 6 MN
shaft. Tr. 61-62. The availability of vehicles to transport injured or fatigued miners during a mine
emergency would address a primary concern of the District Manager in requiring refuge chambers.
In short; notwithstanding thewidespread availability of vehicles to transport miners in the main
sections, the District Manager did not address the use of vehicles in evacuating the mine. 12
In light of this, we can only conclude that there is no evidence, let alone substantial
evidence, to support the judge's conclusion that the District Manager "considered the specific
conditions present in the outby areas," 29 FMSHRC at 859, 13 when he rejected the breathable air
provisions in Twentymile' s proposed ERP. In particular, there is absolutely no evidence to support
the judge's statement that the District Manager "took into consideration ... the availability of
vehicles in the entries." Id. at 860. That fact alone mandates thatthe decision below be
overturned.

11

In this regard, on cross-examination, Twentymile's safety coordinator noted that
driving in heavy smoke would be like "driving in a fog," and could be "difficult." Tr. at 167-68.
12

Our colleagues state that "Reitze, who helped evaluate Twentymile's ERP ... was
aware that vehicles were potentially available to be used to escape from the mine." Slip op. at
23. However, there is no evidence in the plan decision indicating that the District Manager
considered this fact. Therefore, what Reitze was aware of is not probative of what the District
Manager considered in rejecting Twentymile's draft plan and its reliance on vehicles to evacuate
the mine.
13

In concluding "that the [D)istrict [M]anager did consider the specific conditions," the
judge tersely referenced the District Manager's consideration of"the distances involved and the
possibility of a belt fire, an equipment fire, or another unexpected event near the portal." 29
FMSHRC at 859. However, as we have shown above, the MINER Act requires not only an
analysis of the "possible incidents," such as a fire, explosion, or roof fall, and the need for
breathable air, but also an analysis of the further "likely risks," such as miner injury and fatigue
and the use of vehicles to evacuate the mine, "to determine if breathable air beyond increased
stores of SCSRs is necessary." S. Rep. at 6. This the District Manager failed to do.
30 FMSHRC 775

In addition to the District Manager's failure to consider vehicles to evacuate the mine, we
also conclude that, without further explanation and record support, it was arbitrary and capricious
for the District Manager to require a refuge chamber in the outby area while at the same time
approving Twentymile's plan for the longwall section without requiring a refuge chamber in that
section. 29 FMSHRC at 859. Based solely on trial testimony, the judge concluded that it was
"reasonable" for the District Manager to approve Twentymile's ERP and its provision for
breathable air in the longwall section, while refusing to approve a similar provision for the outby
section. Id. The judge further stated that "[t]he Secretary believes that a single event could
contaminate both intake airways in the mains but that a single event could not contaminate both air
courses in the longwall section." Id. However, the trial testimony regarding the basis for the
decision not to require a refuge chamber in the longwall section was neither lengthy nor
particularly helpful. At the hearing, witnesses explained that the two escapeways in the longwall
section have air that travels in opposite directions, while air in the two escapeways in the main
entries travels in the same direction even though air comes from two separate sources outside the
mme. Tr. 61, 87-88.
Before the Commission, Twentymile contends that it is more significant that the
escapeways in the main sections are isolated with independent sources of air. T. Br. at 25-26. The
fact that the escapeways in the main sections are independently sourced is significant because a fire
near the source of the air in one escapeway would not contaminate the air in the other escapeway.
Contamination of the air in two escapeways in the main sections of the mine could occur only if a
fire simultaneously compromised the stoppings in both escapeways. As Twentymile's safety
coordinator testified, if one of the escapeways was contaminated, the other one would "most
likely'' be available. Tr. 159. Thus, a proper risk analysis by the District Manager would first
consider the possibility of a fire and the blocking of the portals, and then consider the additional
need for breathable air in the context of evacuation and further "likely risks," including the
potential for events that could contaminate the air in both escapeways.
There are several other issues that arise because of the apparent inconsistency between the
District Manager's treatment of the outby area and the longwall section which make it difficult to
discern the District Manager's rationale in treating the two areas differently. For example,
Twentymile argues that the main entries had additional escapeways that the longwall section did
not have. 14 T. Br. at 26. See Jt. Ex. 7. The District Manager failed to acknowledge that, in the
outby areas, the ten miners in the· main entries had available for evacuation, mantrips in the main
escapeway and pickup trucks parked at various locations for emergency situations in the alternate
escapeway. Tr. 61-62, 160-61. Over 1500 SCSRs were located in caches in the main entries, in
addition to the SCSRs on the miners and stored in the vehicles. T. Br. at 29 n.11, citing Jt. Ex. 4 at

14

The committee report accompanying the passage of the MlNER Act states that "[t]he
projected need [for breathable air] is obviously fact-specific" and notes that a mine that is
"accessible from alternative entries" presents a different set of circumstances than "a single entry
mine." S. Rep. at 6-7.
30 FMSHRC 776

4 and Jt. Ex. 7. Further, MSHA's main concern with emergency evacuations in the main entries
was with a belt fire in the No. 1 or No. 2 MN that would prevent miners from exiting through the
portals and require them to walk to the No. 6 intake air shaft. Tr. 27-30. However, it is highly
significant that MSHA supervisor Donald Gibson himselftestified that walking inby would be
"downhill" and that it would be "relatively easy." Tr. 111. In addition, the entries in the mains
are 18 to 20 feet wide and eight to nine feet high. Tr. 32.
Finally, the inadequacy of the District Manager's analysis ofTwentymile's ERP is borne
out by the Secretary's questions and answers on breathable air. Question No. 59 describes a mine
strikingly similar to the Foidel Creek Mine:
One operator has a unique escapeway plan that utilizes dual intake
airways for the section primary and alternate paths from active
sections (sic). Both escapeways are accessible by driving for most if
not all the distance. The active longwall panel and when connected,
the set-up location for the next longwall panel are provided intake
airways from two opposite directions. This condition should be
considered in review of the breathable air requirement. Ifone of the
escapeways is not travelable because of an incident, the other would
be intact. Therefore,. those individuals on the sections would not be
trapped as described in PIB 07-03. How should this be considered in
reviewing the plan?

R. Ex, 57 at 10. In the response, MSHA rejected the notion that an operator's ERP would not have
to provide for breathable air for trapped millers. Id. However, MSHA further responded that
"unique mine conditions and the emergency preparedness of the operator may affect a miner's risk
of entrapment as well as the risk that such an entrapment will be lengthy." Id. (emphasis added).
MSHA concluded its response by stating, "District Managers should consider unique mine
conditions and proposals that provide equivalent protection." Id. It is apparent to us that the
District Manager reviewing the Twentymile ERP failed to do that. 15
Based on our review of the record and the legal and factual errors, we conclude that the
Secretary failed to meet her burden of showing that the District Manager's determination was not

15

We note that, among other special precautions taken by Twentymile to enhance miner
safety, there were sophisticated carbon dioxide monitoring along the belts, fire suppression
systems on the belt drives~ fire extinguishers and fire suppression systems on diesel equipment,
separation of the belt entry from the escapeways with continuous stoppings, monitoring devices
on conveyor belts to check for belt alignment, and exceptionally wide entries. As the judge
noted, these and other safety features at the Foidel Creek Mine made Twentymile "an exemplary
underground coal mine operator ... interested in the safety ofits employees." 29 FMSHRC at
859.

30 FMSHRC 777

arbitrary and capricious. The District Manager clearly failed to consider all relevant mine-specific
factors and failed to explain why he did not do so.

B.

Whether the Judge Erred in Granting the Secretary's Motion in Limine

Twentymile also challenges the judge's decision to grant the Secretary's motion in limine.
T. Br. at 11-14; T. Reply Br. at 5-6. Below, Twentymile sought to introduce evidence of other
mines' approved ERPs to show that other MSHA District Managers had approved plans with
provisions similar to Twentymile's rejected provision on breathable air in outby areas to support its
contention that the District Manager's action here was arbitrary and capricious. 29 FMSHRC at
860; Tr. 75-80, 82. At the hearing, Twentymile's counsel made an offer of proof, indicating that
the ERPs that he sought to put into evidence would show that other MSHA districts approved
ERPs for longwall mines without refuge chambers where there were multiple ways out of the mine.
Tr. 73, 82.
The judge granted the Secretary's motion in limine to exclude such evidence. 29 FMSHRC
at 860; Tr. 80-81. He determined that the scope of the proceeding was limited to whether the
Secretary's rejection of the disputed plan provision was arbitrary and capricious and held that the
evidence was of little probative value. 29 FMSHRC at 860; Tr. 80-81. The judge explained that it
was unlikely that two underground coal mines would present exactly the same factual situation. 29
FMSHRC at 860; Tr. 80-81.
When reviewing a judge's evidentiary ruling, the Commission applies an abuse of
discretion standard. Pero v. Cyprus Plateau Mining Corp., 22 FMSHRC 1361, 1366 (Dec. 2000).
Abuse of discretion may be found when there is no evidence to support the decision or if the
decision is based on an improper understanding of the law. Id. (citations omitted).
Commission Procedural Rule 63(a) states that "[r]elevant evidence ... that is not unduly
repetitious or cumulative is admissible." 29 C.F.R. § 2700.63(a). Although the Commission has
not defined "relevant evidence," it is defined in Rule 401 of the Federal Rules of Evidence as
"evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the evidence."
The federal courts have viewed Rule 401 as having "a low threshold of relevancy." Jn Re: Paoli
R.R. Yard PCB Litig., 35 F.3d 717, 782-83 (3d Cir. 1994); see also Hurley v. Atlantic City Police
Dep 't, 174 F.3d 95, 109-10 (3rd Cir. 1999)("Rule 401 does not raise a high standard.").
While it is true that each mine is unique, we disagree with the judge's conclusion that
evidence of a similarly situated mine's ERP containing a provision for breathable air in outby areas
of its mine would be of little relevance here, especially in the absence of clearly articulated
standards for implementation of the breathable air requirement by MSHA. In excluding the
evidence, the judge used an overly narrow relevancy standard requiring that other mines be exactly
identical to Twentymile in order for their approved ERPs to be of any relevance to the question of
breathable air in outby areas of a large longwall mine with multiple escapes. Evidence of other
approved ERPs that contained provisions that are similar to Twentymile's proposed provision with
30 FMSHRC 778

respect to breathable airin outby areas is relevant to the consideration of whether the District
Manager acted arbitrarily in refusing to approve the same or a similar provision in Twentymile's
plan. Although not detemiinative of whether Twentymile is required to provide a refuge chamber
in the outby section of its longwall mine, a comparison of its plan with the approved plans of other
mines with similar conditions would show whether, in applying the breathable air provision of the
MINER Act, MSHA was consistent in implementing this requirement. By highlighting the
differences and similarities between similarly situated mines, MSHA could provide the necessary
basis to validate the District Manager's position in this case. This is especially true where the
District Manager's decision failed to take into consideration relevant facts mitigating the need for a
refuge chamber and provided no justification for such requirement other than the distance between
the portal and the 6MN intake shaft.
Moreover, MSHA's consideration of other mines and ERPs when reviewing Twentymile's
plan makes such evidence relevant in this proceeding. At the hearing, William Reitze, MSHA's
supervisory mining engineer for District 9, admitted that when reviewing Twentymile's plan,
members of the District 9 office looked to see what other districts were approving and were aware
of approved plans without supplies of breathable air in mines with multiple ways out. tr. 73. We
agree with Twentymile that consideration of the actions of other District Managers provides a
reference point for detemiining whether the District Manager here acted arbitrarily, particularly
under the circumstances in this case, where no definite standards exist for the breathable air
provision. T. Br. at 12.
We acknowledge the time constraints that the parties and the judge face given the expedited
nature of emergency response plan proceedings. However, this dispute did not arise overnight.
The parties were in discussions and negotiations from August 2006 until September 2007, over a
year, prior to the initiation of this proceeding. It would seem that during that time, MSHA could
have considered Twentymile's contentions regarding other approved plans and reviewed its policy
on the issue to develop some consistency in its implementation of the breathable air provision.
Moreover, Twentymile sought to introduce only six ERPs, Tr. 82, not over 400 plans as the
Secretary alleged it would have to review to contend with Twentymile's allegations, Tr. 77-79.
This hardly seems like an impossible feat for the parties and the judge to address within the scope
of this proceeding. Hence, the probative value of such evidence far outweighs any allegation of
potential prejudice or harm advanced by the Secretary. Tr. 77-79; S. Br. at 45-46.
Accordingly, we conclude that the judge erred in granting the Secretary's motion in limine.
Nevertheless, given our conclusion that the District Manager's disapproval ofTwentymile's ERP
was arbitrary and capricious, as discussed previously, we conclude that the judge's error in
excluding such evidence was harmless.

30 FMSHRC 779

C.

Conclusion

For all the foregoing reasons, we would reverse the judge's decision.

30 FMSHRC 780

Distribution:
Arthur M. Wolfson, Esq.,
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222

R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222
Mark R. Malecki, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2226
Arlington, VA 22209-2296
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Administrative Law Judge Richard Manning
Federal Mine Safety& Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

30 FMSHRC 781

30 FMSHRC 782

ADMINISTRATIVE LAW JUDGE DECISIONS

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

July 3, 2008

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 2007-63
A.C. No. 15-18505-99179

v.
CONSOL OF KENTUCKY, INC.
Respondent

Beaver Gap E-3 Mine

DECISION
Appearances: Christian P. Barber, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, on behalf of the Petitioner;
David Hardy, Esq., Allen Guthrie McHugh & Thomas, PLLC, Charleston, West
Virginia, on behalf of the Respondent.
Before: ·

Judge Melick

This case is before me upon a petition for civil penalty filed by the Secretary of Labor
pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq., the "Act," charging Consol of Kentucky, Inc. (Consol) with two violations of mandatory
standards and seeking civil penalties of$78,000.00 for those violations. The general issue before
me is whether Consol violated the cited standards as alleged, 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.
There is no dispute that on December 31, 2005, at about 6:30 a.m., Dustin Wright, a third
shift electrician at Consol's Beaver Gap E-3.mine, received a severe electrical shock while
working in the high-voltage compartment of the underground 001 Section power center. It
appears that on the shift before the accident, the maintenance crew had removed a conveyor belt
head drive, a power center and a section of the 13,200-volt cable supplying the section. The
section power center was moved six crosscuts outby and power was restored at about 4:30 a.m.
The day-shift production crew arrived on the section at about 6:00 a.m. to begin their
normal shift. Several members of the maintenance crew, including Dustin Wright and another
electrician, Brian Lucas, were still on the section when the production crew arrived. At this time
Wright became aware that the phase rotation on the 13,200-volt line supplying power to the 001
Section was incorrect. Wright then told Lucas to go to the vacuum switch (located near the No. 4
30 FMSHRC 783

Head Drive) and deenergize and lock out the circuit supplying power to the section. Wright
stated that he would go to the section power center and switch the phase leads to remedy the
problem. Wright and Lucas then proceeded to their respective destinations. Lucas maintained in
an out-of-court statement that the accident occurred before he was able to deenergize the vacuum
switch.
According to Wright's out-of-court statement, when he arrived at the power center, he
pushed the emergency stop switch located on the high-voltage end of the power center. This
deenergized the incon:iing power. He then removed the lid covering the disconnect switch and
tested for voltage. The voltage detector indicated that the power was deenergized. In that same
statement Wright claimed that he tossed a chain across the phase leads to bleed the charge off the
cable before touching the leads.
According to his statement, Wright removed the right phase lead from the termination
point (as viewed from the high-voltage end of the power center facing the inby direction). He
then realized that the middle phase lead was not long enough to reach the right termination point,
so he reconnected the phase lead in its original position. He removed the left and middle phase
leads and then connected the middle phase lead to the left termination point. He picked up the
left phase lead and started bending it so it could be easily attached to the middle termination
point. At this point Winford Taylor, section foreman, and Tony Thomas, another electrician,
arrived at the power center.
As Taylor and Thomas approached the power center, the phase lead in Wright's hand
became energized and Wright collapsed against the frame of the power center. Thomas picked
up a rubber mat lying next to the power center and, apparently while standing on the mat, pulled
Wright away from the power source. As a result of the accident Wright suffered, and was
hospitalized for treatment of, burns on his right arm.
Citation No. 7558347
Citation No. 7558347 alleges a "significant and substantial" violation of the standard at 30
C.F.R. § 75.511 and charges as follows:
On December 31, 2005, a mine electrician performed electrical work in the high voltage
compartment of the 001 Section power center without first personally de-energizing,
locking out, and tagging. the appropriate disconnect device. While attempting to change
the configuration of the high voltage input leads, the electrician received a severe
electrical shock.
The cited standard provides as follows:
No electrical work shall be performed on low-, medimn-, or high-voltage distribution
circuits or equipment, except by a qualified person or by a person trained to perform
electrical work and to maintain electrical equipment under the direct supervision of a

30 FMSHRC 784

qualified persori. Disconnecting devices shall be locked out and suitably tagged by the
persons who perform such work, except that in cases where lOcking out is not possible,
such devices shall be opened and suitably tagged by such persons. Locks or tags shall be
removed only by the persons who installed them or, if such persons are unavailable, by
person authorized by the operator or his agent.
Consol does not dispute that the violation occurred and that it was "significant and
substantial". There is therefore no dispute that the violation was also of high gravity. The
evidence ofrecord also clearly establishes that the violation was reasonably likely to cause death
by electrocution. Consol argues in this case only that the violation was not the result of its high
negligence and that no civil penalty should be assessed.
In her brief, the Secretary observes that the cited standard requires that disconnecting
devices must be "locked out and suitably tagged by the persons who perform [electrical] work"
on high voltage circuits or equipment. The Secretary also notes that there is no dispute that
Wright was performing electrical work when he was injured and that he did not lock out and tag
the circuit or equipment he was working on. The Secretary further observes, and it is undisputed,
that Consol had a practice and policy that permitted Wright to perform his electrical work ·
without first personally locking out and tagging the disconnect device. Indeed, it may also
reasonably be inferred that Wimp Taylor, one of Consol's foreman, also knew that Wright would
perform the electrical work at issue without first locking out and tagging the disconnect device
because Taylor gave Wright a ride to the power center to perform the work while co-worker
Lucas traveled to the splitter to lock out the disconnect device. The Secretary accordingly argues
that Consol, through its agents, not only knew that Wright would violate the cited standard, but
that it affirmatively encouraged electricians to violate the standard as a matter of company policy.
While admitting that it had a long-term policy of allowing two certified electricians to . .
work together, with direct telephone or radio communication, in deenergizing lines, locking and
tagging the power source and performing repairs, Consol maintains that it reasonably believed
this policy to be in full compliance with applicable federal law and equally safe. More
·
specifically, the policy required that phone or radio instruction be direct between the person who
removes the power, locks and tags, and the person performing the repairs. The policy further
required that when the repair was completed, the order to unground and restore power again be a
direct communication repeated at least three times between the two electricians.
As noted, Consol argues that it should not be found negligent because it maintains that it
reasonably and in good faith believed its policy to be safe and compliant with applicable law. In
this regard Consol presented testimony of witnesses experienced in the mining industry who had
"always seen the procedures described in the Consol policy followed in circumstances such as
those presented in this case", had never seen such procedures questioned by anyone including
MSHA inspectors, were unaware that citations had ever been issued as a result of the subject
policy, and who believed the procedures were as safe as those required by the cited standard.

30 FMSHRC 785

I do not however find Consol's claims - - that it reasonably believed that its two-person
lock and tag policy was consistent with the cited standard - - to be credible. The plain language
of the standard requires disconnecting devices to be locked out and tagged "by the persons who
perform" the electrical work on high voltage, distribution circuits or equipment. The standard
does not in any way suggest that the person performing the electrical work may have someone
else lock out and tag the disconnecting device, or that the disconnecting device may be locked
out and tagged by only one of the persons performing that work if there is more than one.
Consol's policy is also inconsistent with the purpose of the standard. As the Secretary
notes, the standard implements the statutory provision 30 U.S.C. § 865(f), and Congress, in
explaining the comparable provision in the Federal Coal Mine Health and Safety Act of 1969,
described the purpose of requiring switches to be locked in an open position where the power is
disconnected is to prevent accidental reclosing and that the person performing the work must
retain possession of the key to guard against such reclosing. H.R.Rep.No.91-563, at 1078(1969).
Congress intended that the person who locks out the equipment be the person who is going to
perform the work. See Badger Coal Company 6 FMSHRC 874, 902{April 1984){ALJ). It does
not take a rocket scientist to recognize that the only way for a person to assure against the
accidental reclosing of the circuit is to place their own lock on the disconnect device and retain
possession of the key. By retaining the key to the lock, that person is thereby assured that power
will not accidently be engaged. Allowing an electrician to rely on someone else to lock the
disconnect device adds an unnecessary human element that increases the likelihood of mistake
and mis-communication. Under the circumstances, I find that the violation herein was the result
of Consol's high negligence.

In reaching these conclusions I have not disregarded Consol's claim that it reasonably and
in good faith believed its policy to be in compliance with the cited standard, because of its
reliance on an interpretive policy issued by a former Consol employee then employed by the
West Virginia Office of Miners Health Safety and Training(Respondent's Exhibit No.2).
However, sirice the policy was not adopted by this state agency until almost two years after the
violation charged in this case, it could not have been relied upon by Consol for a good faith belief
that it was in compliance two years earlier with the West Virginia policy. In any event, an
interpretation by a state agency of its own regulation when that interpretation is contrary to the
plain meaning of the Federal standard provides but little support for Consol's position herein.
The potential for conflicting interests of a former Consol official rendering assisrance to· Consol
also certainly raises issues of crerubility.
Citation No. 7558348
Citation No. 7558348 alleges a "significant and substantial" violation of the standard at
30 C.F.R. § 75.705 and charges as follows:
On December 31, 2005, a mine electrician performed electrical work in the high voltage
compartment of the 001 Section power center without first personally ensuring that the

30 FMSHRC 786

power source was de-energized and grounded. While attempting to change the
configuration of the high voltage input leads, the electrician received a severe electrical
shock.
The cited standard provides as follows:
High-voltage lines, both on the surface and underground, shall be deenergized and
grounded before work is performed on them, except that repairs may be permitt~ in the
case of energized surface high-voltage lines, if such repairs are made by a qualified
person in accordance with procedures and safeguards, including, but not limited to, a
requirement that the operator of such mine provide, test, and maintain protective devices
in making such repairs, to be prescribed by the Secretary prior to March 30, 1970.
30 C.F.R. § 75.705-1 explains what is meant by the phrase "deenergized and grounded":
No high-voltage line, either on the surface or underground, shall be regarded as
deenergized for the purpose of performing work on it, until it has been determined by a
qualified person (as provided in§ 75.153) that such high-voltage line has been
deenergized and grounded. Such qualified person shall by visual observation (1)
determine that the disconnecting devices on the high-voltage circuit are in open position
and (2) ensure that each ungrounded conductor of the high-voltage circuit upon which
work is to be done is properly connected to the system-grounding medium.

It is undisputed that Mr. Wright was performing work on a high-voltage line in the power
center and that the high-voltage circuit could not be deenergized and grounded at the power
center. It is also clear that in order to deenergize and ground the high-voltage circuit, one would
have had to travel to the splitter. The splitter was about 1,500 feet away from the power center.
Wright sent Lucas to the splitter to deenergize and ground the circuit. However Lucas stated that
he had just arrived at the splitter when he heard about the accident, and had not yet made any
changes at the splitter. Power was obviously reaching the high voltage lines Wright was working
on when he suffered his electrical burns. In addition, when MSHA inspector Cook observed the
splitter after the accident the visual disconnect was closed, indicating that it would not have
prevented power from going to the power center. On the basis of these undisputed facts it is
clear that Wright performed work on a high-voltage line that had not been deenergized and
grounded. The Secretary has therefore met her burden of proving a violation of the cited
·
standard.

In reaching this conclusion I have not disregarded Consol's contention that the two
citations herein are duplicative. Citations are not duplicative, however, ifthe standards cited
impose separate and distinct duties and the alleged violations are based upon two separate and
specific omissions. See Secretary v. Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 378
(March 1993). Within this framework oflaw, I find that the violations of30 C.F.R. § 75.511
and 30 C.F.R. § 75.705 charged herein are in fact not duplicative because the standards impose
30 FMSHRC 787

separate and distinct duties and the distinct duties and the violations are based on two separate
and specific omissions. Section 75.705 requires high-voltage lines to be deenergized and
grounded before work is performed on them, while section 75.511 requires the disconnect device
for the circuit or equipment to be locked out and suitably tagged. It is possible to comply with
the former requirement and fail to comply with the latter. See also Blue Diamond Coal Co. v.
Secretary, 26 FMSHRC 570, 583 (July 2004) (ALJ) in which Judge Zielinski found that the
requirement to deenergize and the requirement to lock and tag are, indeed, separate and distinct
duties and that charges that the operator failed to meet each requirement are not duplicative.
The violation was also "significant and substantial". A violation is properly designated
as."significant and substantial" if, based on the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature. Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April
1981). "Jn Mathies Coal Co., 6 FMSHRC 1. 3-4(January1984), the Commission explained:
fu order to establish that a violation of a mandatory standard is significant and substantial
under National Gypsum the Secretary must prove: (1) the underlying violation of a
mandatory safety standard, (2) a discrete safety hazard - - that is, a measure of danger to
safety - - contributed to by the violation, (3) a reasonable likelihood that the 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), affg
9 FMSHRC 2015, 2021(December1987) (approving Mathies criteria).

The third element of the Mathies formula requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result in an event in which there is an
injury. US. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984), and also that the
likelihood of injury be evaluated in terms of continued normal mining operations. US. Steel
Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984); See also Halfway, Inc., 8 FMSHRC 8, 12
(January 1986) and Southern Ohio Coal Co., 13 FMSHRC 912, 916-917 (June 1991).
Clearly, having a person work on high-voltage lines that have not been deenergized and
grounded exposes that person to the hazard of contact with high voltage, and the likelihood of
suffering bums, electric shock and electrocution. fudeed the hazard contributed to by the
violation herein actually resulted in a serious permanently disabling injury. The violation was
accordingly "significant and substantial" and of high gravity.
The Secretary argues that the violation was also the result of Consol's moderate
negligence. She argues that while Consol's two-person lock-out policy may not have been
violative of section 75.705 it nevertheless invited violations of section 75.705 by encouraging
persons who perform electrical work on high-voltage lines to rely on others to deenergize and
ground the circuit. She argues that Consol's policy increases the likelihood for miscommunication and for mistakes due to inattention or carelessness and, thus, the likelihood of
30 FMSHRC 788

injury. I find, however, that the Secretary's argument is so highly speculative as to be without
probative value. Accordingly, I must reject her findings of moderate negligence based on that
argument. In the absence of other evidence of negligence I must conclude that the violation was
the result of but little negligence.
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 effect the operator's
ability to continue in business. The record shows that Consol is a large operator and it has been
stipulated that the proposed penalty would have no effect on its ability to continue in business. It
has a significant violation history (Government Exhibit No.15). The gravity and negligence
findings have previously been discussed. Under the circumstances, I find that penalties of
$50,000.00 for the violation charged in Citation Number 7558347 and $1,000.00 for the violation
charged in Citation Number 7558348 are appropriate.
ORDER
Citation Numbers 7558347 and 7558348 are affirmed with "significant and substantial"
findings. Consol of Kentucky, Inc., is hereby directed to pay civil penalties of$50,000.00 and
$1,000.00 respectively for the violations charged therein within 40 days of the date of this
decision.

(

I

Gary Melick
Administrative Law Judge
(202) 434-9977

Distribution: (Certified Mail)
Christian P. Barber, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219
David Hardy, Esq., Allen Guthrie McHugh & Thomas, PLLC, 500 Lee Street, Suite 800, P.O.
Box 3394, Charleston, WV, 25333-3394

/lh

30 FMSHRC 789

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

July 10, 2008
CONTEST PROCEEDING

POWDER RIVER COAL, LLC,
Contestant

Docket No. WEST 2007-100-R
Citation No. 7610237; 10/24/2006
V.

North Antelope Rochelle Mine
Id. No. 48-01353
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

CNIL PENALTY PROCEEDING

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

Docket No. WEST 2007-300
A.C. No. 48-01353-110134

v.

North Antelope Rochelle Mine
POWDER RIVER COAL, LLC,
Respondent

DECISION
Appearances:

R Henry Moore, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania,
for Powder River Coal, LLC;
Gregory W. Tronson, Esq., Office of the Solicitor, U.S. Department of
Labor, Denver, Colorado, for the Secretary of Labor.

Before:

Judge Manning

These cases are before me on a notice of contest filed by Powder River Coal, LLC
(''Powder River") and a petition for assessment of civil penalty filed by the Secretary of Labor,
acting through the Mine Safety and Health Administration ("MSHA") pursuant to sections 105
and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the
"Mine Act"). Powder River contested Citation No. 7610237 issued under section 104(a) of the
Mine Act. An evidentiary hearing was held in Denver, Colorado. The parties introduced
testimony and documentary evidence and filed post-hearing briefs.

30 FMSHRC 790

I. THE CITATION
Powder River operates the North Antelope Rochelle Mine, a large open-pit coal mine, in
Campbell County, Wyoming. MSHA fuspector Scott Markve sampled for respirable dust on
several occasions over a period of 19 months. Based on this sampling, Inspector Markve issued
Citation No. 7610237 on October 24, 2006, alleging a violation of30 C.F.R. § 71.100 as follows:
The average concentration of respirable dust in the working
environment of the designated work position was 3.698 mglm3 ,
which exceeds the 2.00 mglm3 standard. The finding was based on
the results of three valid samples collected by MSHA.
The citation was modified on November 28, 2007, to read as follows:
The average concentration of respirable dust in the working
environment of the designated work position was 2.984 mglm3 ,
which exceeds the 2.00 mglm3 standard. The finding was based on
the results of four valid samples collected by MSHA.
This modification was made because one valid sample was "inadvertently left out of the average
concentration."
The cited health standard provides, in relevant part: "Each operator shall continuously
maintain the average concentration of respirable dust in the mine atmosphere during each shift to
which each miner in the active workings is exposed at or below 2.0 milligrams of respirable dust
per cubic meter of air." The designated work position that Inspector Markve cited was position
306 (non-shop welder), which includes all surface welders who spendat least part of their time
working outside of,a welding shop.

II. THE ISSUES
Powder River raised a number of defenses in this case, but its key argument is that a
violation did not exist because the sampling results were seriously affected by welding fumes. It
contends that much of the material deposited on the filter was not "respirable dust" but was
metallic and non-metallic material from welding operations. Powder River also argues that the
samples were not collected in compliance with section 71.205(b) or MSHA's sampling protocols.

III. BACKGROUND
Inspector Markve described the process used to obtain a respirable dust sample. He
testified that a non-shop welder works in various locations at the mine, including the
maintenance shop or out in the field. {Tr. 17-18). The North Antelope Rochelle Mine has two
shops where welding takes place.

30 FMSHRC 791

The sampling unit was worn by each miner in the breathing zone. (Tr. 24) The inspector
explained the sampling procedure to the miner and started the pump. The miner was told that he
must keep the intake hole open. The inspector also instructed each miner to alert him if he
changed occupations so the sample could be adjusted if necessary. The mine operator selected
the miner to be sampled based on the occupation requested by the inspector. (Tr. 36).
The inspector kept a control filter with him while the miner was wearing the sampling
unit. The inspector kept the filter in his pocket and sent it to the lab along with the collected
samples to determine the weight gain for the environment. (Tr. 37). When a sample had been
collected for eight hours, the inspector removed the unit. The pump was then shut off, the filter
removed, the filter was capped, and it was placed in a Ziploc bag. It was then taken back to the
MSHA office and mailed along with the required documentation to MSHA's Pittsburgh
laboratory to be analyzed. A card was sent along that identifies the filter as well as the initial
weight and date of sample. The control filter was sent with the sample. After the lab analyzed
the sample, the results were faxed to the Gillette MSHA office. If the results indicated a dust
concentration of more than 2.0, additional sampling was performed.
The subject samples were taken on February 27, 2005, June 15, 2005, December 18,
2005, and September 26, 2006. The samples were taken outside the welding hood worn by the
welders. MSHA performed an "elemental analysis" on the samples that were taken in February
2005 and December 2005. This elemental analysis measured the weight of metal particulates
deposited on the filter from the welding fumes. This analysis was not capable of measuring nonmetallic components contained in the welding fumes.
The Secretary has defined "respirable dust" in section 7l.2(k) as "dust collected.with a
sampling device approved by the Secretary and the Secretary of Health and Human Services in
accordance with part 74 (Coal Mine Dust Personal Sampler Units) of this title." 30 C.F.R. §
71.2(k). She defines ''valid respirable dust sample" as "a respirable dust sample collected and
submitted as required by this part and not voided by MSHA." 30 C.F.R. § 71.2(r). It is the
Secretary's position that all particles collected by the sampling unit are "respirable dust" for
purposes of section 71.100 because the sampling units used were approved by the Secretary.
Powder River argues that the samples taken by MSHA are invalid because they contained
welding fumes. Any samples significantly affected by welding fumes do not accurately reflect
the amount ofrespirable dust in the miner's breathing zone and should not be the basis for a
citation issued under section 71.100. The evidence establishes that the samples taken on
February 2005 and December 2005 were significantly affected by exposure to welding fumes
and, as a consequence, it is likely that the other samples were similarly affected. At the request
of Powder River, these two samples were tested for metallic elements. MSHA's laboratory
analysis shows that much of the weight gain for these samples is attributable to metallic welding
fumes. This laboratory analysis did not indicate the full impact of welding fumes on the filter
because it only measured metallic elements and it did not measure other non-metallic
components of welding fumes. Powder River contends that its argument is corroborated by the

30 FMSHRC 792

fact that no citations were issued as a result of respirable dust sampling of non-welders at the
mine. Although welders sometimes travel to other parts of the mine,· they spend most of the time
in the shops where exposure to respirable dust would be minimal.

IV. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
This case raises the issue whether all solid particles deposited on MSHA's dust sampling
filter during welding operations can be considered to be respirable dust as that term is used in the
Secretary's health regulations. Powder River contends that because the solid particles emitted as
a result of welding are not dust, any respirable dust samples taken by MSHA which are seriously
affected by welding fumes cannot be used to establish a violation of the health standard. Powder
River presented the testimony of Professor Thomas A. Hall of the University of Oklahoma's
College of Public Health and Stephen Laramore, the company's safety supervisor, to support its
arguments. It also relies on published textbooks and materials issued by MSHA. The Secretary
argues that all particles smaller than 10 microns in diameter collected on the sampling device are,
by definition, respirable dust including particles deposited on the filter as a result of welding
operations. The Secretary relies on the testimony of Robert A. Thaxton, who is the Acting Chief
ofMSHA's Division of Health for Coal Mine Safety and Health.
The Secretary contends that the language of the health standard is clear on its face.
Subject to the size limitation, any particles captured on the filter are respirable dust. She also
argues that, even if the language is ambiguous, the Secretary's position is reasonable and entitled
to deference. The purpose of the health standard is to prevent all occupation-related lung
diseases. She notes that the Commission has recognized that she has broad authority to define
what constitutes an overexposure to respirable dust. (See, Consolidation Coal Co., 8 FMSHRC
890, 901 (June 1986)).
As the Commis·sion recently stated in The American Coal Company, 29 FMSHRC 941,
946 (Dec~ 2007):
Where the language of a regulatory provision is clear, the
terms of that provision must be enforced as they are written unless
the regulator clearly intended the words to have a different
meaning or unless such a meaning would lead to absurd results.
Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987)
(citations omitted); see also Utah Power & Light Co., 11
FMSHRC 1926, 1930 (October 1989) (citations omitted);
Consolidation Coal Co., 15 FMSHRC 1555, 1557 (August 1993).
If, however, a standard is ambiguous, courts have deferred to the
Secretary's reasonable interpretation of her regulation. See Energy
West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994);
accord Sec'y ofLabor v. Western Fuels-Utah, Inc., 900 F.2d 318,

30 FMSHRC 793

321 (D.C. Cir. 1990) ("agency's interpretation ... is 'of controlling
weight unless it is plainly erroneous or inconsistent with the
regulation'") (quoting Bowles v. Seminole Rock Co., 325 U.S. 410,
414 (1945) (other citations omitted)). In determining whether a
standard is plain or ambiguous, the "language of a regulation ... is
the starting point for its interpretation." Dyer, 832 F.2d at 1066
(citing Consumer Prod. Safety Comm 'n v. GTE Sylvania, Inc., 447
U.S. 102, 108 (1980)).
I find that in the context of this case, the language of the cited health standard when read
in conjunction with the Secretary's definition of"respirable dust" is somewhat ambiguous. The
Secretary's position is that the standard clearly states that anything captured on the sampling
filter with an approved sampling device that is smaller than ten microns in diameter is, by
definition, respirable dust. The Secretary defines "respirable dust" as "dust collected with a
sampling device approved by the Secretary...." (emphasis added). Consequently, as discussed
further below, particles collected on a sample filter must be "dust" in order to be "respirable
dust." The issue then is whether particles deposited on the sample filter from welding fumes can
reasonably be construed to be "dust."
Powder River's principal argument is that welding fumes are not "dust," as that term is
commonly used in the industrial hygiene community. (Tr. 220-21 ). Powder River contends that
in the absence of a specific regulatory definition, the ordinary meaning of the word "dust" as
used by industrial hygiene professionals should be used. Powder River relies on definitions
provided in specialized occupational safety and health materials, the testimony of its expert
witness, and materials issued by MSHA officials.
Fumes generally consist of particles smaller than one micron. (Tr. 220-21, 226). They
are generated in a different manner than dust because they are the product of a heating process.
Fumes behave differently, acting more like a gas. (Ex. C-3). The Secretary offered a definition
of fumes from a dictionary entitled Occupational Safety and Health: Terms, Definitions, and
Abbreviations ("Occupational Health Dictionary'). (Ex. G-11 ). It defines fumes as "small,
solid particles formed by the condensation of the vapors of solid materials." In a publication
entitled Introduction to Operator Air Sampling Programs, issued by the Health Division, Metal
Nonmetal Mine Safety and Health, the term "fume" is defined as:
[A]n airborne particle formed in close proximity to a molten metal
by vaporization of the metal, oxidation of the vapor, and
condensation of the oxide. Fume particles usually assume rounded
or smooth, irregular shapes and are generally one micron or smaller
in size. Fumes may also agglomerate to form larger particles.
(Ex. C-13, p. 9).

30 FMSHRC 794

Dust, on the other hand, is defined in the Occupational Health Dictionary as:
Small solid particles created by the break up of larger particles,
such as by crushing, grinding, drilling, handling, detonation,
impact, etc. Dusts in the industrial environment typically do not
flocculate (join together) in air, but settle out under the influence of
gravity.
(Ex. C-17) (emphasis added). 1 This definition is consistent with the definition of dust in
MSHA' s Introduction to Operator Air Sampling Programs. (Ex. C-13, p. 7). This definition
states that "dust is a term used to describe airborne particles, ranging in size from 0.1 to 25
[microns], created by the crushing, grinding, breaking, drilling, or the general abrasive handling
of solid material." (emphasis added).
These definitions make clear that dust and fumes have very different characteristics.
Welding fumes are principally made up of metallic oxides, they are quite small, they are
produced by heat, they are condensed vapors, and they agglomerate. Dust, including coal dust, is
created by a physical process which breakS down solid material into small particles. Dust
particles are course, irregularly shaped, and do not agglomerate. Dust and fumes behave
differently in the pulmonary system, as well. (Tr. 222-27).
The Secretary has, over the years, published documents and provided instructions to coal
mine operators that indicated that fumes are different from dust and should be sampled
differently. For example, MSHA sent Michelle Shaper, an MSHA toxicologist, to give a
presentation to coal mine operators in the Powder River Basin on the hazards presented by
welding fumes. She emphasized the differences between fumes and dust. (Tr. 189-92). Until
July 2006, the Secretary's Program Policy Manual ("PPM") contained the following language
with reference to section 71.100:
This provision does not apply to airborne contaminants other than
respirable coal mine dust. Exposures of surface shop welders
(occupation code 319) to such contaminants as welding fumes, of
which iron oxide is the main constituent, are governed by section
71.700.
(Ex. G-14). The language of this section was changed in 2006, but the purpose of this change is
not entirely clear. It now states:

1

Exhibits C-1 7 and C-18 are hereby admitted into evidence. Fundamentals ofIndustrial
Hygiene, published by the National Safety Council, draws a similar distinction between dusts and
fumes. (Ex. C-18).
30 FMSHRC 795

This provision applies to respirable dust as defined by 30 CFR
71.2(k) and collected in accordance with the requirements of30
CFR part 71. Exposures to airborne contaminants as specified in
30 CFR 71.700 will be monitored through sampling specified by
30 CFR 71.701.
Id. As stated above, MSHA' s Introduction to Operator Air Sampling Programs recognizes the
differences between fumes and respirable dust.
Dr. Hall testified that, from an industrial hygiene point of view, the Secretary's
interpretation that the term "dust" includes welding fumes is unreasonable. (Tr. 227). Dr. Hall is
a certified industrial hygienist. I agree with Dr. Hall's assessment and I credit his testimony in
this case. Although both welding fumes and dust contain solid particles, not all particles can be
classified as dust. (Tr. 220-22). The evidence clearly establishes that welding fumes are not a
type of dust and the Secretary's attempt to construe her regulations to include welding fumes
within the definition of respirable dust is clearly erroneous. The Secretary's definition of
"respirable dust" limits its application to dust particles and her own interpretive materials have
drawn a distinction between dust and fumes. 2 I find that it is unreasonable to interpret the term
"dust" in the subject regulations to include welding fumes.

It is important to understand that MSHA' s health standard at section 71. 700 covers
welding fumes. This standard is much stricter than the respirable dust standard at issue here. In
addition, all particles are included when testing for welding fumes, not just particles that are
smaller than ten microns in diameter. The sampling is conducted inside the welding hood which
more accurately reflects the miner's breathing zone. The welders at Powder River are regularly
sampled under the protocol set forth in 71.701.

In conclusion, I find the Secretary's interpretation of her health regulations to be plainly
erroneous, u'nreasonable, and inconsistent with the language and purposes of the standard. It is
unreasonable for the Secretary to take the position that "respirable dust" includes any and all
particles less that ten microns in diameter that are deposited on a sampling filter as long as the
sample was taken with an approved device.
At the request of Powder River, the samples taken in February and December 2005 were
tested for metallic elements. MSHA' s laboratory analysis shows that a significant part of the
weight gain for these samples is a result of welding fume particles. It can be reasonably assumed
that the sample taken June 2005 also contained welding fume particles. This laboratory analysis
did not indicate the full impact of welding fumes on the filter because it only measured metallic
elements and did not include other non-metallic components of welding fumes.

2

The Secretary contends that materials published by MSHA's Metal Nonmetal Division
do not apply to coal mines. I reject this argument with respect to discussions describing the
characteristics of dust and fumes.
30 FMSHRC 796

The evidence also establishes that the two welding shops were not near sources of coal
dust. Most of the welding is performed in the shops, although welders will sometimes go to
equipment in the field, especially welders working in the east shop. The sample taken on
February 27, 2005, showed significant weight gain as a result of welding fumes. This sample
was taken on a welder in the west shop who spent his day in the shop. (Tr. 184-85). The dust
sample taken on December 18, 2005, was taken on a welder in the east shop. Since the
temperature was about 20 degrees below zero that day, he spent the day in the shop. This sample
also showed a large amount of welding fumes on the sample filter. Finally, the sample taken on
September 26, 2006, was for a welder who spent his day welding in the shop on dragline rigging.
(Tr. 185-87, 194). The other sample taken measured less than 2.0 mg/m3 •
Other factors call in question the results in this case. Miners who are not welders have
been sampled at the mine by inspectors and by the company and they have rarely been found to
be overexposed to respirable coal dust. (Tr. 186-88; Ex. C-1 & C-2). Thus, it seems suspicious
that welders, who primarily work a substantial distance from possible sources of respirable dust,
are the miners who appear to be overexposed to respirable dust under section 71.100. fu
addition, the samples at issue here were taken outside of the welding hood so they do not
necessarily reflect what the miner is breathing.
I find that the Secretary did not establish a violation of section 71.100 in this case.
Although some of the samples appear to show an overexposure to respirable dust even after the
results of the elemental analysis are subtracted out, I find that Powder River demonstrated that
the sampling results were unreliable. It is clear that non-metallic elements contained in the
welding fumes were not analyzed by MSHA. Dr. Hall testified that, by his calculations, the
samples taken by MSHA were heavily contaminated by welding fumes and that the amount of
respirable dust on the filters was more likely than not below the 2.0 threshold. (Tr. 214-20). His
~alculations throw sufficient doubt into the sampling results obtained by MSHA to make them
llllfeliable. The Secre~ary bears the burden of proof and she did not meet this burden in this case.
My decision in this case is limited to the facts presented. I do not mean to imply that
MSHA cannot sample welders for overexposure to respirable dust, including coal and silica dust.
MSHA, however, cannot rely on samples that have been contaminated by welding fumes.
MSHA may be able to improve its laboratory analysis so that the increase in the weight on the
filter from welding fume particles can be. subtracted out. MSHA may also be able to take
respirable dust samples inside the welding hood when miners are welding to cut down on the
:;ontamination of the sample. 3

3

Because I have vacated the citation for the reasons set forth above, I have not

~onsidered the other issues raised by Powder River at the hearing and in its brief.

30 FMSHRC 797

V. ORDER

For the reasons set forth above, Citation No. 7610237 is VACATED arid these
proceedings are DISMISSED.

Richard W. Manning ·
Administrative Law Judge

Distribution:

· R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1340, 401 Liberty
A venue, Pittsburgh, PA 15222 (Certified Mail).
Gregory W. Tronson~ Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202-5710 (Certified Mail)

RWM

30 FMSHRC 798

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

July 10, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2007-62-M
A. C. No. 02-02777-99898
Docket No. WEST 2007-147-M
A. C. No. 02-02777-102413

v.

Docket No. WEST 2007-184-M
A. C. No. 02-02777-104635
AMMON ENTERPRISES,
Respondent

Ammon-Courtland

DECISION
Appearances: Cheryl L. Adams, Esq., Office of the Solicitor, U.S. Department of Labor,
San Francisco, California, on behalf of the Secretary of Labor;
Peter J. Ammon, Dragoon, Arizona, on behalf Ammon Enterprises ..
Before:

Judge Zielinski

These cases are before me on Petitions for Assessment of Civil Penalties filed by the
Secretary of Labor, pursuant to section 105 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815. The petitions allege that Ammon Enterprises is liable for seventeen violations
of the Secretary's Mandatory Safety and Health Standards for Surface Metal and Nonmetal
Mines, and propose the imposition of civil penalties totaling $4,130.00. A hearing was held in
Tucson, Arizona, and the parties filed briefs after receipt of the transcript. For the reasons set
forth below, I find that Ammon committed fifteen violations, and impose civil penalties in the
·
total amount of$1,365.00. ·
Findings ofFact- Conclusions of Law
Ammon Enterprises is a sole proprietorship, owned by Peter Ammon, that engages in
several business activities, including excavation, grading, road construction and maintenance,
residential housing pad construction, and septic system installation. Ammon is also licensed to
store materials and heavy equipment, rent equipment, conduct Arizona concealed weapons
certifications, operate a private air strip, and resell home, automobile and ranch supplies. It owns
and leases a considerable amount of mobile equipment, including five loaders and
loader/backhoes, six trailers, two graders, two semi trucks, a scraper, a water trailer, and a ten-·
30 FMSHRC 799

wheeled dlllllp truck. It also utilizes welding, trenching, steam cleaning, pipe fitting, and electric
pedestal installation equipment.
Ammon's operations are conducted from two sites. Pits, from which gravel is extracted,
a screening plant, a shop building, fuel tanks and a water well and plllllp are located on a
120-acre site six miles north of Elfrida, Arizona. Ammon's equipment is serviced, prepared for
rental, refueled, maintained and repaired at the Elfrida facility. Its offices are located on a
139-acre tract in Dragoon, Arizona, which also supports the resale and equipment and material
storage operations.

On August 8, 2006, Lawrence Nelson, an MSHA inspector, conducted an inspection of
Ammon's Elfrida facility. He inspected the screening plant, shop, refueling area, a Case 621
loader and a CAT 613C scraper. 1 He found several conditions that, in his judgment, were
violations of mandatory safety standards, and issued citations to the operator. On August 9,
Nelson traveled to Ammon's offices and inspected training and other records. He initiated
enforcement action with respect to deficiencies he found in the records. He also initiated
enforcement action on two subsequent visits to the Elfrida facility. Ammon timely contested the
civil penalties assessed for the alleged violations.
Jurisdiction
There are relatively few factual disputes with respect to most of the alleged violations.
The primary thrust of Ammon' s defense is that MSHA has jurisdiction only over its screening
plant, which occupies approximately one-half acre of the site, and constitutes about one percent
of the activity on the property. It also acknowledges that the 621 loader is part of the mining
operation when the plant is running. Peter Ammon maintains that he is the sole operator of the
plant and, consequently, the only miner involved in the operation. The Secretary maintains that
Ammon's extraction of gravel from the pits brings its facility within the Act's definition of a
mine, that its screening plant and portable screens are involved in milling, which is also within
the statutory definition, and that mobile equipment used in those operations, as well as facilities
and employees who are involved in them, are subject to MSHA's jurisdiction.
The "L-shaped" Elfrida site is depicted in a poorly focused overhead photograph.
Ex. R-7. The pits are located at the top, North, end of the "L," and the screening plant is located
about 1,300 feet to the South of the pits. The water tank, shop and fuel tanks lie near the comer
of the vertical member and the base of the "L," about 1,000 feet from both the pits and the

1

Nelson was not aware of Ammon's other businesses at the time of the inspection, and
did not obtain much information about them during the course of the inspection. Tr. 93-94. He
did not inspect a grader that was at the site because he did not believe that it was involved in
Ammon's mining activities. He also did not inspect a CAT 988A loader because it had
obviously been inoperable for a considerable period of time.
30 FMSHRC 800

screening plant. Two portable screens, called "shaker buddies," were located near the pits. 2
Peter Ammon described the material obtained from the pits as "highly unique" because it
is of very good quality, approximately 55% gravel, and is able to be used in many applications
without further processing, i.e., as "pit run." Tr. 380-81. Material was extracted from the pits on
a weekly basis, and Ammon used the pit run material for roads, road pad build-ups, and
residential house pads. Ex. P-62 at 57-58. A small percentage of the material removed from the
pits was run through the screening plant, which separated it into five different-sized products.
Ammon constructs septic systems and uses leach rock, 3/4 to 2 inch-sized rock, in the septic
fields. Occasionally, material from the pits was also run through the shaker buddies. Tr. 291,
294, 310.
Ammon commenced screening operations at the Elfrida site in 1998. Tr; 293. It
provided an ''Update Notice" to MSHA, effective August 18, 1998, under Mine l.D. No. 0202776, that it would be engaged in "gravel screening only." Ex. P-38. It purchased the screening
plant and a CAT 988A loader in 2002. The 988 loader had a seven-cubic-yard bucket and was
capable of moving large amounts of material. It was used, among other things, to extract
material from the pits, transport it to stockpiles near the screening plant, and to feed material into
the screening plant's hopper. At least for several months in 2003, the screening plant was
operated on a relatively continuous basis, which resulted in the creation of large stockpiles of
screened material. The plant was operated by two employees, Don Bartle, the plant manager, and
Mike Gojkovich.
Ammon acknowledged that, as of 2003, it was conducting regular mining activities, and
had provided appropriate training to Bartle and Gojkovich, including first aid training for
Gojkovich. However, an MSHA inspection around that time resulted in the issuance of several
citations that Ammon viewed as unjustified. As a result, Peter Ammon decided to substantially
limit operation of the screening plant. He planned to personally operate the plant as time
permitted, e.g., if he was free on a Saturday, and would be the only person involved in that
operation. Bartle left Ammon's employment. Because of the extensive stockpiles, the screening

2

Peter Ammon described the shaker buddies as highly efficient double-decked screens,
that could be nearly as productive as the screening plant. Tr. 290-94. Ammon claims that there
are a number of such machines being used by various entities, generally not considered mining
companies, and that MSHA has not sought to exercise jurisdiction over them. Peter Ammon
testified that his operation has been inspected over seven times and none of the MSHA inspectors
looked at the shaker buddies. Ex. P-62 at 63. Nelson does not appear to have examined them
when he conducted the inspection. He later considered them to be a part of Ammon's mining
operation because Gojkovich told him that they were going to be incorporated into the screening
plant. Tr. 285. Gojkovich did not recall stating that, and testified that he had never been under
that impression. Tr. 354. Peter Ammon testified that, although the subject had been mentioned,
there was no plan to add the shaker buddies to the plant, and that they were being readied for an
impending deal involving a project at another site. Tr. 288.
30 FMSHRC 801

plant was operated only occasionally, as specific material was needed.
The 621 loader has a considerably smaller bucket thap. the 988 loader, 2.25 cubic yards,
and was not generally used to shuttle material from the pit to the stockpiles, although after the
988 loader broke down in 2004, it was the only piece of equipment on the site capable of
performing that function. It was used to load trucks, to feed the screening plant and shaker
buddies, to push up material, and for a variety of other purposes, both on-site and off-site.
Tr. 346. About two months before the August 2006 inspection, Ammon entered into a lease
agreement and acquired a "low boy" trailer and a CAT 613C scraper. However, the scraper was
in very poor, "as is," condition, and Ammon had to expend considerable time and effort to make
it operational. That effort included identification and repair of hydraulic leaks, replacement of
the cutting edge, repairs to the transmission brake and service brakes, and replacing the batteries.
In addition, the fuel injection pump had to be removed, sent out for repairs, and replaced. Some
repairs, e.g., stoppage of hydraulic leaks and replacement of the scraper's cutting edge, were
done before the inspection, and some were done after it. After initial repairs were done,
Gojkovich operated the scraper to gain familiarity with it and identify other repair needs. He
removed material from the pits and transported it to stockpiles near the screening plant and
shaker buddies. Tr. 302, 346. None of the material moved with the scraper was run through the
screening plant. Tr. 315. The main stockpile was located near the screening plant because the
area was clean and easily accessible by Ammon's trucks. The vast majority of the material was
trucked to other sites, without being milled or processed.
The shop is a SO by 60-foot building. Equipment, spare parts, and miscellaneous supplies
were kept in the shop, and certain maintenance tasks were performed there. 3 If a piece of
equipment was too large to fit into the shop, maintenance was performed near the shop. For
example, Gojkovich worked on the scraper near the shop, and changed the 621 loader's oil in the
shop. Tr. 307. The fuel tanks stored diesel fuel for use in off-road equipment, e.g., the loaders,
scraper and graders, some of which were on-site at the time of the inspection. A water tank was
used to supply water to several trees and, following the inspection, water was pumped to the shop
and a toilet located therein.
Gojkovich has worked at Ammon for about seven years as an equipment operator and
maintenance mechanic. Tr. 298-99. In 2006, he continued to work at the Elfrida site two to
three days per week and, generally, was the only person at the site. Tr. 303. He operated mobile
equipment on the site. He had aiso operated the screening plant as recently as a few weeks
before the inspection, and operated the shaker buddies to screen material from the pits. Tr. 5456, 299-300. He refueled, maintained and repaired graders, backhoes, trucks, the 621 loader, and
the 613 scraper, using the shop and other facilities on-site.

3

The most common maintenance parts for the screening plant, electrical fuses, were
kept in the shop. Tr. 334. A replacement bearing for one of the plant's shakers was temporarily
stored in the shop. Tires for the various pieces of mobile equipment were also stored in the shop,
as were, on occasion, parts for the scraper and 621 loader. Tr. 306.
30 FMSHRC 802

Ammon is regiStered as an "intermittent" mining operation. However, it technically
remained "open" at all times. MSHA inspectors had recommended to Peter Ammon that he
close the mining operation during periods when it was not operating. However, he did not want
to close the mine, and then have to transmit facsimiles to notify MSHA that he was opening the
mine if he wanted to run some material on a Saturday. There was no fax machine at the Elfrida
site, and the need to fax a notice that the screening plant would operate for a day, and then fax a
notice that it was again closed, was viewed as unworkable. Tr. 369-70; ex. P-62 at 13.
Subsequent to the August inspection, Ammon decided to take MSHA's advice, and temporarily
closed the mine on September 15, 2006. Tr. 367-68; ex. P-63.
Section 4 of the Federal Mine Safety and Health Act of 1977 provides that "[e]ach coal or
other mine, the products of which enter commerce, or the operations or products of which affect
commerce, and each operator of such mine, and every miner in such mine shall be subject to the
provisions of this Act." 30 U.S.C. § 803. Section 3(g) of the Act provides that a "'miner' means
any individual working in a coal or other mine," and section 3(h) of the Act defines the term
"mine," in part, as:
h(l) "coal or other mine" means (A) an area of land from which minerals are
extracted ... (B) private ways and roads appurtenant to such area, and (C) lands, .
. . structures, facilities, equipment, machines, tools, or other property ... used in,
or to be used in, or resulting from, the work of extracting such minerals from their
natural deposits ... or used in, or to be used in, the milling of such minerals, or
the work of preparing ... minerals, ....
30 u.s.c. § 802(g), (h)(l).
The legislative history of the Act makes clear that Congress intended that the Act's
coverage provisions be interpreted broadly. The Senate Committee report emphasized that "what
is considered to be· a mine and to be regulated under this Act [should] be given the broadest
possible interpretation, and ... doubts [should] be resolved in favor of inclusion of a facility
within the coverage of the Act." S. Rep. No. 95-181, at 14 (1977), reprinted in Senate
Subcomm. on Labor, Comm. on Human Res., Legislative History ofthe Federal Mine Safety and
Health Act of1977 at 602 (1978).
The Commission and the courts have recognized that broad Congressional intent and
have applied the Act's provisions to a wide variety of mining operations, including mining and
preparation facilities similar to those at Ammon's Elfrida site. Marshall v. Stoudt's Ferry
Preparation Co., 602 F.2d 589 (3rd Cir. 1979) (facilities for processing of material dredged from
a river bed were within the Act's definition of the term "coal or other mine"); Jerry Ike Harless
Towing, Inc., 16 FMSHRC 683 (April 1994) (sand dredging operation that included screening
and separation of water from sand subject to Act's jurisdiction); W.J. Bokus Ind., 16 FMSHRC
704 (April 1994) (equipment in garage used by both operator's sand and gravel mine and asphalt

30 FMSHRC 803

plant is subject to Mine Act's jurisdiction);4 Marshall v. Cedar Lake Sand and Gravel Co., Inc.,
480 F.Supp. 171 (E.D. Wisc. 1979) (pit from which sand and gravel are removed. falls squarely
within the Act's definition of a mine); Marshall v. Gilliam, 462 F .Supp. 133 (E.D. Mo. 1978)
(MSHA has jurisdiction over clay stockpile, loading and selling operation, including structures
and machines that were used, or that had been used in connection with the extraction of clay and
its preparation for loading, including a shop area and machines used to maintain mining
equipment). In a very recent case with facts similar to those at issue here, a small, family-run
gravel business was held to be a mine and MSHA's jurisdiction to inspect and enforce the Act
was upheld as to a gravel pit, screening plant and equipment used, or that had been used, in the
operation. Jeppesen Gravel, 30 FMSHRC 324 (Apr. 2008) (ALJ).
Ammon readily concedes that its screening operation, which separates material into five
different products, is subject to MSHAjurisdiction, because it constitutes milling, as defined in
the Act. However, it steadfastly contends that no other parts of its extensive operations are
mining activities. Specifically, it argues that the removal :from the pits of native material, and its
transport to job sites without any processing, is the type of activity perfonned by thousands of
other businesses licensed to excavate and remove excess material, e.g., septic system contractors
and excavation contractors. "Transporting natural material without any milling, is a non Mine
Act legal operation." Resp. Br. at 2-3.
While Ammon does not cite any legal authority in support of its argument, in essence, it
argues that its pits are ''borrow pits" that are not subject to MSHA jurisdiction. The Secretary
has recognized a limited exception for operations that might otherwise fall within the broad
definition of coal or other mine. It is reflected in a 1979 interagency agreement between MSHA
and the Department of Labor's Occupational Safety and Health Administration ("OSHA"),
specifying that borrow pits that are not on mine property or related to mining are subject to
OSHA, not MSHAjurisdiction. 44 Fed. Reg. 22827 (April 17, 1979). The tenn "borrow pits" is
defined in the agreement as:
an area ofland where the overburden, consisting of unconsolidated rock, glacial
debris, other earth material overlying bedrock is extracted :from the surface.
Extraction occurs on a one-time only basis or only intermittently as need occurs,
for use as fill materials by the extracting party in the fonn in which it is extracted.
No milling is involved, except for the use of a scalping screen to remove large
rocks, wood and trash. The material is used by the extracting party more for its
bulk than its intrinsic qualities on land which is relatively near the borrow pit.

It may be that the septic system and excavation contractors referred to by Ammon would
be exempt :from MSHAjurisdiction under the provisions of the agreement. However, for several
4

The Commission did not reach the question of whether the garage was a facility subject
to Mine Act jurisdiction. However, it held that certain equipment was within the Act's coverage,
in part, because defects could injure miners working in the garage. 16 FMSHRC at 708.

30 FMSHRC 804

reasons, Ammon'spits are not borrow pits. Material from the pits is run through the screening
plant and the shaker buddies, which are not "scalping screens." 5 Large amounts of material were
processed in 2003, and the screen was operated intermittently after that, most recently, a few
weeks prior to the inspection. This "milling" of minerals dictates that the area qualifies as a
mine, and borrow pits that are on mine property or related to mining are under MSHA
jurisdiction. Moreover, material is removed from the pits, used in Ammon's various business
activities and occasionally sold to others on an ongoing, not one-time or intermittent, basis. The
material is also of very high quality and suited to its particular uses. It is not used more for its
bulk than for its intrinsic properties, and is used over a relatively wide area at any number of
locations where Ammon conducts its activities.
Ammon's extraction of gravel at the Elfrida facility cannot escape MSHAjurisdiction
under the borrow pit exception. See Drillex, Inc., 16 FMSHRC 2391 (Dec. 1994); Kerr
Enterprises, Inc., 26 FMSHRC 953 (Order, dated Dec. 21, 2004) (ALJ); Jeppesen Gravel, supra.
Several aspects of Ammon' s operation easily fall within the Act's definition of a mine.
The removal of gravel, a mineral, from its natural deposits in the pits and transporting it to
stockpiles constitutes mining, as does the processing of such material through the screening plant
and the shaker buddies. Gojkovich was intimately involved with both aspects of Ammon's
mining operations. He operated the 613 scraper, and used it to remove material from the pits and
transport it to stockpiles, from which it was loaded into trucks. Ammon argues that none of the
material removed from the pits with the scraper was ever processed through the screening plant.
However, the extraction of gravel from its natural deposits constitutes mining, whether or not it
was subsequently milled. Gojkovich operated the 621 loader to· feed the screens, occasionally to
extract material from the pits, to load trucks, and for other purposes. He maintained and repaired
mining equipment, the screening plant, shaker buddies and associated mobile equipment. He
was an individual working in a mine, and was clearly a miner. The shop and fuel tanks were also
involved in the mining operation. The fuel tanks contained diesel fuel used by the 621 loader
and the 613 scraper, both of which were serviced in or near the shop using tools and supplies
stored in the shop. Parts for the screening plant, fuses and a bearing, were kept in the shop, as
were tires for wheeled vehicles, including the 621 loader. Consequently, even though the shop
was primarily used to support Ammon's non-mining activities, it was a facility used or to be used
in its mining operations and was subject to MSHA jurisdiction. Whether specific items, such as
gas cans or oxygen cylinders, were actually used in mining activities, their presence in the shop,
where Gojkovich, a miner, worked mandated that they comply with MSHA's regulations. W.J.
Rokus Ind., supra; Marshall v. Gilliam, supra.
The timing ofMSHA's inspection was also appropriate. While the screening plant and
shaker buddies were operated only intermittently, material was extracted from the pits on a more
regular basis, and neither operation was officially shut down for any specified period. Gojkovich

5

Shaker buddies could be, and perhaps are, used as scalping screens. However, they
were not so used at Ammon's facility, where pit run gravel was processed through them.
30 FMSHRC 805

worked at the Elfrida site two or three days a week. Equipment and facilities that are available
for use by miners must be maintained in compliance with applicable safety standards, and are
subject to inspections whether or not they are actually being used at the time. See. e.g.• Ideal
Basic Ind.• Cement Div., 3 FMSHRC 843 (April 1981) (equipment located in a normal work area
and capable of being used must be in compliance with safety standards).
Ammon's challenges to jurisdiction must be rejected. 6 MSHA was statutorily obligated
to inspect all mining operations at the Elfrida site, including the pits, screening plant, shaker
buddies, the shop and fueling areas, and associated mobile equipment.
Order No. 6330985
Order No. 6330985 was issued on August 9, 2006, and alleges a violation of 30 C.F.R.
§ 46.8(a)(l), which requires that mine operators "provide each miner with no less than 8 hours of
annual refresher training." Ex. P-22. In response to Nelson's inquiry, Gojkovich stated that he
had not received any refresher training in several years. Nelson then issued the order, pursuant to
section 104(g) of the Act, which required Gojkovich's immediate withdrawal from the mine, and
prohibited his reentry until an authorized representative of the Secretary had determined that he
had received the requisite training. Nelson determined that it was reasonably likely that the
violation would result in a fatal injury, that the violation was significant and substantial ("S&S"),
that one person was affected, and that the operator's negligence was high. A civil penalty in the
amount of $500.00 has been proposed for this violation.
Ammon does not dispute the fact that Gojkovich was not provided refresher training
during the pertinent time period. Its defense to this alleged violation, and related training
violations, is that Gojkovich ceased to be a miner in 2003, when Ammon drastically curtailed its
"only'' mining operation, i.e., the screening plant. Thereafter, Ammon contends, Peter Ammon
was the "sole miner" and, as owner/operator was qualified to provide training and sign training
certificates. Tr. 262-63.
As noted above, Ammon's jurisdictional arguments have been rejected, and it cannot
escape the fact that Gojkovich worked as a miner. In addition, Gojkovich had not been
completely excluded from Ammon's admitted mining operation. He had operated the screening
plant as recently as a few weeks prior to the inspection. The definition of a miner for training
purposes, as set forth in the subject regulation, includes "[aJny person, including any operator or
supervisor, who works at a mine and who is engaged in mining operations." 30 C.F.R.
§ 46.2(g)(l )(i). Mining operations include "extraction, milling, crushing, screening, or sizing of

6

It is also clear that Ammon' s operations affect interstate commerce. It is well
established that the Commerce Clause has been broadly construed, and that Congress may
regulate highly localized commercial activities because even small scale efforts, when combined
with other similar operations, can influence interstate pricing and demand. See Harless Towing.
supra, 16 FMSHRC at 686.
30 FMSHRC 806

minerals at a mine; maintenance and repair of mining equipment; and associated haulage of
materials within the mine from these activities." 30 C.F.R. § 46.2(h); Because Gojkovich was a
miner, Ammon was required to provide him with annual refresher training. I find that the
regulation was violated.
Significant and Substantial
A significant and substantial violation is described in section 104(d)(l) of the Act as a
violation "of such nature as could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard." A violation is properly designated S&S
"if, based upon the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious
nature." Cement Div., Nat'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:

In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861F.2d99,
103-04 (5th Cir. 1988), ajfg Austin Power, Inc., 9 FMSHRC 2015, 2021(Dec.1987) (approving
Mathies criteria).

In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission
provided additional guidance:
We have explained further that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to·
will result in an event in which there is an injury." U.S. Steel Mining Co., Inc.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(l ), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U.S. Steel
Mining Co., Inc., 6 FMSHRC 1866, 1868(August1984); U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574-75(July1984).
This evaluation is made in terms of"continued normal mining operations." U.S. Steel
Mining Co., Inc., 6 FMSHRC at 1574. The question of whether a particular violation is S&S

30 FMSHRC 807

must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC
498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
Generally speaking, an untrained miner is a hazard to himself and others. 30 U.S.C.
§ 814(g)(l). Gojkovich had not been provided annual refresher training since 2003. 7 However,
he was not "untrained." He periodically received informal training from or through Peter
Ammon, e.g., Ammon had the former owner of the scraper show him how to operate it and he, in
turn, instructed Gojkovich and charged him with the task of identifying what needed to be
repaired. Tr. 275-76, 278-79, 351. Gojkovich was also a highly experienced miner, who had
worked at the Elfrida facility for many years, and was intimately familiar with virtually all
aspects of the equipment and its operation. Nelson determined that the training plan violation,
Citation No. 6330984, was unlikely to result in an injury because Ammon's ''people were
experienced." Tr. 258.
Under the limited circwnstances presented here, I find that the Secretary has not carried
her burden of proving that the hazard contributed to by the violation was reasonably likely to
result in a reasonably serious injury. I also disagree with the Secretary's assessment of
negligence. Peter Ammon certainly was quite familiar with training requirements, as Inspector
Nelson noted. However, he believed, in good faith, that he had sufficiently separated Gojkovich
from the mining operation, such that he was not required to have annual refresher training. His
belief was erroneous. However, it was not so unreasonable that it failed to qualify as a mitigating
factor, and I find that Ammon's negligence was moderate, rather than high.
Citation No. 6330984
Citation No. 6330984 was issued on August 9, 2006, and alleges a violation of30 C.F.R.

§ 46.3(a), which requires that mine operators "develop and implement a written training plan ...
that contains effective programs for training new miners and newly hired experienced miners,
training miners for new tasks, annual refresher training, and site-specific hazard awareness
training." Ex. P~21. When Nelson visited Ammon's office in Dragoon, he asked to see the
training plan and was shown an MSHA form for a training plan that had virtually none of the
required information filled in. Consequently, he issued the violation. He determined that it was
unlikely that the violation would result in an injury, but that if it did, the injury would result in
lost work days or restricted duty, that the violation was not S&S, that two persons were affected,
and that the operator's negligence was moderate. A civil penalty in the amount of $193.00 has

7

Gojkovich told Nelson that he had had no training for six years. Tr. 67. However, he
had received three days of first aid training in 2003, and Peter Ammon testified at his deposition
that Ammon had fulfilled all training requirements through 2003. Ex. P-62 at 48-49. The
Secretary notes that Ammon did not produce records of such training. However, there were
MSHA inspections in that time frame, and there is no evidence that training violations were
issued. I accept Ammon's testimony, and find that Gojkovich had received all required training
through 2003.
30 FMSHRC 808

been proposed for this violation.
Amrn.on'sjurisdictional defense to the training violations has been discussed above. It
also contends that it "had updated training records that reflected the owners signed documents."
Resp. Br. at 13-14. However, such records were not shown to the inspector, were not offered
into evidence, and are not part of the record. Moreover, Peter Ammon agreed that, at the time of
the inspection, the training plan was incomplete. Tr. 266; ex P-62 at 47. I find that Ammon did
not have a written training plan at the time of the inspection, and that the regulation was violated.
I agree with the inspector's assessment of gravity and that the operator's negligence was
moderate.
Citation No. 6331001
When Nelson returned to the Elfrida site on August 23, 2006, he found Gojkovich
working at the site, loading trucks and cleaning up the shop area. Ex. P-24. Gojkovich
confirmed that he had not received annual refresher training. Nelson issued Citation No.
6331001 alleging a violation of section 104(g)(I) of the Act, which requires that a miner who has
been ordered withdrawn from the mine because of a lack of training, not reenter the mine until an
authorized representative of the Secretary has determined that the requisite training has been
provided. Ex. P-24. Nelson determined that there was no likelihood of injury because of the
new violation, that the violation was not S&S, that one person was affected, and that the
operator's negligence was high. A civil penalty in the amount of$1,000.00 has been proposed
for this violation.
The analysis of this alleged violation is complicated by the fact that Ammon operates
several non-mining businesses which share use of equipment and facilities used in its mining
operations. The Secretary argues, in support of the violation and the high negligence assessment,
that "instead of providing eight hours of training to Gojkovich, or taking action to obtain a
determination ofGojkovich's status, Ammon largely ignored the withdrawal order."
Sec'y. Br. at 11. However, Ammon did take steps to obtain a determination of whether it was
properly cited for violations based upon Gojkovich's status as a miner. While it did not
immediately contest the original order and related citations, it did contest the proposed penalties,
and it temporarily closed its mining operations in September 2006. In addition, Gojkovich had
been "excluded" from what Ammon considered to be the mining area, the screening plant.
Tr. 279-81; ex. 62 at 51. Peter Ammon elected to keep him employed in the excavation portion
of the business. Resp. Br. at 14. He loaded trucks from the stockpiles of materials and cleaned
up the shop area. Gojkovich testified that he did not use the loader after the withdrawal order
had been issued, except to load trucks and push weeds. Tr. 306. He also had been instructed to
work on the shaker buddies when he was finished grading roads. Ammon's intent was to make
them operational for an impending project at another site.
The regulations addressing training, as noted above, define a miner as a person who
works at a mine and is engaged in mining operations. While the shop and other areas of the

30 FMSHRC 809

Elfrida property fall within the broad definition of a coal or other mine, not all of the activities
that take place on the site are mining activities. In light of Amrnon's non-mining businesses, a
reasonable interpretation of the order is that it precluded Gojkovich's performance of mining
operations, such as, extraction, milling, screening, and maintaining and repairing mining
equipment. It did not preclude his presence at the site, or his performance of non-mining
operations. 8
It is clear that no milling of materials was being performed, and there is no evidence that
Gojkovich extracted gravel from the pits. However, he was engaged in the maintenance and
repair of mining equipment, the shaker buddy. The loading of trucks from the stockpiles may
also have qualified as a mining operation.9 In keeping with the broad interpretation of Mine Act
jurisdiction discussed above, I find that Gojkovich was assigned to work at mining operations in
the face of the order, and that Ammon violated section 104(g) of the Act. However, it did not
ignore the order. It attempted to confine Gojkovich's activities to what it viewed as non-mining
operations. Gojkovich's work on the shaker buddy, to make it ready for a project at a different
site, satisfied the "engaged in mining operations" test. However, it appears that, if the shaker
buddy had been removed from the site, he could have performed those tasks without running
afoul of the order: Similarly, if the stockpiles were not on the mine site, loading of customer or
Ammon Enterprise trucks would not come under MSHAjurisdiction. Tr. 94-98. It is highly
likely that the same would have been true if Ammon had temporarily closed the mine, i.e., ceased
mining activities, which it later did. Under these specific circumstances, I find that the operator's
negligence was low, rather than high.

Citation No. 6330983
Citation No. 6330983 was issued on August 9, 2006, and alleges a violation of 30 C.F.R.

§ 56.18010, which requires that mine operators assure that an "individual [currently trained and]
capable of providing first aid shall be available on all shifts." Ex. P-20. Nelson issued the

8

As noted above, Ammon notified MSHA that its mining operation was temporarily
closed as of September 15, 2006. fu keeping with the ruling on jurisdiction, that means that it
would not be extracting gravel from the pits, or milling material in the screening plant or shaker
buddies. Closing of the mining operation did not force Ammon to shut down its septic system,
road, and excavation businesses, or to cease loading material from the stockpiles into trucks
being used in those businesses.
9

Nelson testified that retail sales conducted from a yard separate from a mine site would
not come under MSHA jurisdiction, but that loading of customer trucks from stockpiles located
at the ends of conveyor belts depositing material processed by a screening plant would be
MSHA's responsibility. Tr. 95-98. Loading of truck from stockpiles separated from the screen,
but still on mine property would be inspected, but could present a gray area. Tr. 95-96. It
appears that if Ammon' s mining operation had been closed, that the loading of trucks from the
stockpiles would not be considered within MSHA's jurisdiction.
30 FMSHRC 810

citation because he determined that Gojkovich, generally the only person at the site, did not have
current first aid training. He determined that it was unlikely that the violation would result in an
injury, but that if it did, the injury would be permanently disabling, that the violation was not
S&S, that one person was affected, and that the operator's negligence was high. A civil penalty
in the amount of $327.00 has been proposed for this violation.
Gojkovich, who worked at the Elfrida site two-to-three days a week, was working as a
miner. Consequently, Ammon was obligated to have a person trained and capable of providing
first aid on each shift that he worked. Gojkovich had been provided three days of first aid
training in 2003, but his certification had expired. I find that the regulation was violated.
However, the Secretary has not carried her burden of proving that any injury that might result
from the violation would be permanently disabling, or that the operator's negligence was high.
Since Gojkovich was typically the only person working at the site, he was the person who would·
have had to have been trained, and he was also the only miner who might have been injured and
would have required first aid. He had been fully trained in 2003, and there is no evidence as to
whether, or to what extent, he failed to retain the information and skills learned at that time. It is
highly unlikely that, because his training had not been kept current, the effects of an injury could
have been exacerbated to the extent that a separate injury might be said to be attributable to the
violation, much less a permanently disabling one. Nelson explained that if there were a neck
injury and the injured person were moved due to the absence of an individual with current first
aid training, a permanent injury could result. Tr. 247. That person would have been Gojkovich,
who might have moved himself. I find the likelihood of the violation resulting.in a permanent
injury too speculative, and that the more likely result would have been a lost work days injury.
As I have found with respect to the other training violations, I find the operator's negligence to
have been moderate.
Citation No. 6330970
Citation No. 6330970 was issued on August 8, 2006, and alleges a violation of 30 C.F.R
§ 56.4402, which requires that "[s ]mall quantities of flammable liquids . . . shall be kept in
safety cans labeled to indicate the contents." Ex. P-1. Section 56.4000 defines the term "safety
can" as a "container of not over five gallons capacity that is designed to safely relieve internal
pressure when exposed to heat and has a spring-closing lid and spout cover." Nelson determined
that it was unlikely that the violation would result in an injury, but that if it did, the injury would
be permanently disabling, that the violation was not S&S, that one person was affected, and that
the operator's negligence was moderate. A civil penaltyin the amount of$60.00 has been
proposed for this violation.
There were several small gasoline containers in the shop, at least one of which had a
quantity of gasoline in it. Tr. 111-15, 127; ex. P-36. Peter Ammon confirmed that the
containers, which met State of Arizona requirements, did not have spring-closing lids, and did
not meet MSHA requirements. Tr. 118. His defense to this citation is that the shop is not

30 FMSHRC 811

associated with his mining operation, and that no part of the mining operation uses gasoline.
Ex. P-62 at 8, 16.
As noted above in the discussion of jurisdiction, the shop is part of the mining operation
and it, and things located in it, must be in compliance with the Secretary's regulations. I find that
the regulation was violated, and agree with the inspector's assessment of gravity, and that the
operator's negligence was moderate.
Citation No. 6330971 ·
Citation No. 6330971 was issued on August 8, 2006, and alleges a violation of 30 C.F.R.
§ 56.4601, which requires that "[o]xygen cylinders shall not be stored in rooms or areas used or
designated for storage of flammable or combustible liquids, including grease." Ex. P-2. Nelson
determined that it was unlikely that the violation would result in an injury, but that if it did, the
irtjury would be permanently disabling, that the violation was not S&S, that one person was ·
affected, and that the operator's negligence was moderate. A civil penalty in the amount of
$60.00 has been proposed for this violation.
There was an oxygen cylinder within a few feet of the gas cans. Ex. P-2, P-36. Nelson
did not check to determine whether there was oxygen in the cylinder. Both Gojkovich and
Ammon testified that it was empty. Tr. 128, 129-30. I find that the cylinder was empty.
Nevertheless, I find that the regulation was violated. The plain wording of the regulation applies
to all oxygen cylinders, whether full, partially full, or empty. See Ideal Basic Ind., Cement Div.,
2 FMSHRC 1352, 1371 (June 1980) (AU). The goal of the regulation, ensuring that oxygen
does not exacerbate any fire that might occur involving stored combustible materials, is
reasonably advanced by interpreting it to preclude the storage of any oxygen cylinder in areas
where combustible materials are stored. However, the fact that the cylinder was empty dictates
that there was no likelihood of an injury resulting from the violation, and the operator's
negligence was low.
Citation No. 6330972
Citation No. 6330972 was issued on August 8, 2006, and alleges a violation of 30 C.F.R.
§ 56.4201(a)(2), which requires that annual maintenance checks be made on fire extinguishers,
including the amount of extingtiishing agent and expellant, to determine that they will operate
effectively. Ex. P-3. Sub-section (b) requires that the person making the inspection must certify
that the inspection or test has been made, and indicate the date thereof. Nelson determined that it
was unlikely that the violation would result in an injury, but that if it did, the injury would be
permanently disabling, that the violation was not S&S, that one person was affected, and that the
operator's negligence was moderate. A civil penalty in the amount of $23 7 .00 has been proposed
for this violation.

30 FMSHRC 812

Nelson found two fire extinguishers in the shop and one on the 621 loader. None of them
bore any indication that they had been inspected, as required by the regulation. Tr. 131; ex. P-3,
P-39, P-40, P-41. They were fully charged and in operable condition. Tr. 133; ex. P-3.
Ammon' s defense to this alleged violation is that none of the fire extinguishers was located in the
area of the screening plant, its mining operation. Tr. 139. Ammon may have had records of
inspections, but they were notproduced. Tr. 139. Having rejected Ammon's jurisdictional
arguments, I find that the regulation was violated. However, because the fire extinguishers were
fully charged and operable, there was no likelihood of an injury resulting from the violation. I
also find that Ammon's negligence was low. The maintenance checks had apparently been
made, but not recorded on the fire extinguishers, which Ammon believed were not involved in
mining operations.
Citation No. 6330973
Citation No. 6330973 was issued on August 8, 2006, and alleges a violation of30 C.F.R.
§ 56.12023, which requires that "[e]lectrical connections and resistor grids that are difficult or
impractical to insulate shall be guarded, unless protection is provided by location." Ex. P-4.
Nelson determined that it was unlikely that the violation would result in an injury, but that if it
did, the injury would be fatal, that the violation was not S&S, that one person was affected, and
that the operator's negligence was moderate. A civil penalty in the amount of$60.00 has been
proposed for this violation.
While inspecting the shop, Nelson observed a Lincoln welder/generator that did not have
insulation or a guard covering the welding lead lugs. Tr. 141; ex. P-4. The condition is depicted
in a photograph. Ex. P-25. Aside from itsjurisdictional argument, Ammon contends that the
welder was in "as manufactured" condition, and a representative of the manufacturer represented ·
to Peter Ammon that, to his knowledge, MSHA had never issued a citation with respect to the
cited condition on that type of welder. Tr. 145. Ammon introduced a standard of the National
Electrical Manufacturer's Association, which provides that welding leads need not be enclosed in
a case or cabinet, and that protection is usually afforded by recessing the terminal lugs behind the
vertical plane of the access opening. Ex. R-19.

As depicted in the photograph, the welding lead lugs were recessed a few inches into a
relatively small opening in the welder's cabinet. Under the circumstances, I find that protection
was provided by the location of the lugs, and that the standard was not violated.
Citation No. 6330974
Citation No. 6330974 was issued on August 9, 2006, and alleges a violation of30 C.F.R.
§ 56.14130(i), which requires that seat belts on mobile equipment be maintained in functional
condition, and replaced when necessary to assure proper performance. Ex. P-6. Nelson
determined that it was reasonably likely that the violation would result in a fatal injury, that the
violation was S&S, that one person was affected, and that the operator's negligence was

30 FMSHRC 813

moderate. A civil penalty in the amount of $354.00 has been proposed for this violation.
When Nelson examined the 613 scraper, he observed that the seat belt was frayed at the
edges, and had tears in it. Tr. 148-50; ex. P-6. 10 The condition is depicted in photographs taken
at the time of the inspection. Ex. P-42, P-43, P-60. In describing the defects, with reference to
the pictures, Nelson identified a "rip." Tr. 157-58; ex. P-42. The seat belt was four inches wide,
and the rip was about 0.75 inches deep. Tr. 158-59. Nelson agreed that the seat belt was
functional. Tr. 159. Nelson's assessment of the gravity of the violation was predicated upon the
seat belt failing during a serious accident, e.g., a rollover. Tr. 152; ex. P-6. Nelson did not
attempt to test the strength of the belt. His determinations were based solely upon his visual
examination. Tr. 160.
I find that the Secretary has failed to carry her burden of proof on this violation. While
the seat belt showed obvious signs of wear, it was functional. It was not so obviously defective
that Nelson noticed it before having Gojkovich operate the scraper to test the brakes. 11 Nelson's
descriptions of the belt's defects were somewhat inconsistent, and the pictures do not confirm the
existence of a serious defect. It is not apparent that a tear of0.75 inches on a four-inch wide belt
·
would so weaken it that it would pose a danger, even if the edges were somewhat frayed.
Citation No. 6330975
Citation No. 6330975 was issued on August 9, 2006, and alleges a violation of30 C.F.R.

§ 56.141 OO(b), which requires that "[d]efects on any equipment, machinery, and tools that affect
safety shall be corrected in a timely manner to prevent the creation of a hazard to persons." Ex.
P-7. Nelson determined that it was unlikely that the violation would result in an injury, but that
if it did, the injury would result in lost work days or restricted duty, that the violation was not
S&S, that one person was affected, and that the operator's negligence was moderate. A civil
penalty in the amount of $178.00 has been proposed for this violation.
While inspecting the 613 scraper, Nelson observed that much of the padding on the seat
was missing. Tr. 165-68; ex. P-42, P-43. When Gojkovich activated the brake lights and tail

10

Nelson erroneously referred to the scraper as an excavator in bis notes and on the
citation. The error is of no con5equence. Ammon does not have an excavator, and it is clear that
the condition cited was on the 613 scraper.
11

Consistent with its position on jurisdiction, Ammon protested Nelson's efforts to have
Gojkovich, a "non-miner," operate equipment. Its protest is reinforced with respect to the
scraper, because Nelson obtained Gojokovich's agreement to operate the scraper to test the
brakes, despite his citing of the seat belt violation, which he determined to have been reasonably
likely to result in a fatal injury. Nelson explained that he ''believed" that he didn't notice the seat
belt problem until after the brake test had been done. Tr. 76. Ammon's protests, at least as to
this alleged violation, are well-founded.
30 FMSHRC 814

lights, at Nelson's request, they did not function. Nelson believed that, on extended use, an
operator of the equipment could suffer back or kidney injuries, and that the non-functioning
lights could result in rear-end collisions when the equipment was operated in areas where other
mobile equipment operated. Tr. 165-68. He determined that such injuries were unlikely to
occur, because the scraper was not operated extensively, and was rarely operated in the presence
of other mobile equipment. I find that the standard was violated and agree with Nelson's gravity
determinations. He also determined that the operator's negligence was moderate, because it
should have been realized that the defects existed and needed to be corrected. However, Ammon
was in the process of attempting to bring this newly leased piece of equipment into operating
condition. Considerable work had been done on the machine, and the fact that these particular
defects had not yet been addressed does not indicate as high a level of negligence as if the defects
had been allowed to exist on equipment that had been integrated into the everyday work process.
Under the circumstances, I find the operator's negligence with respect to this violation to have
been low.
Citation No. 6330976
Citation No. 6330976 was issued on August 9, 2006, and alleges a violation of 30 C.F.R.
§ 56.1410l(a)(l), which requires that "[s]elf-propelled mobile equipment shall be equipped with
a service brake system capable of stopping and holding the equipment with its typical load on the
maximum grade it travels." Ex. P-8. Nelson determined that it was reasonably likely that the
violation would result in a fatal injury, that the violation was S&S, that one person was affected,
and that the operator's negligence was moderate. A civil penalty in the amount of$354.00 has
been proposed for this violation.
Nelson asked Gojkovich to load the scraper and travel to a hill on the property. The
service brakes would not hold the equipment on the grade. Tr. 170. Nelson believed that the
scraper had been operated in that condition. However, Gojkovich told Nelson before the test,
that he believed that there were no problems with the brakes because they had been worked on
recently. Tr. 173-74. Even if the scraper had been operated briefly after the work had been done,
the deficiency in the brakes may not have been apparent. The site is fairly flat. Gojkovich had
operated the scraper for only about two hours since it had arrived at the site, and most of that
time was devoted to diagnosing hydraulic leaks and other maintenance needs.
I find that the standard was violated, and that the violation was S&S. However, I find that
the brakes had been worked on, and there was little reason for Ammon to believe that they were
not operational. Conseqµently, I find the operator's negligence to have been low. I also find that
the gravity was somewhat lower, in that the violation was highly unlikely to result in a fatal
injury. The grader was operated at relatively low speeds on fairly level, open ground, where
other mobile equipment did not normally operate. Any injury reasonably likely to result from the
violation would have involved lost work days.

30FMSHRC 815

Citation No. 6330977
Citation No. 6330977 was issued on August 9, 2006, and alleges a violation of30 C.F.R.
§ 56.14132(a), which requires that "[m]anually-operated horns or other audible warning devices
provided on self-propelled mobile equipment as a safety feature shall be maintained in functional
condition." Ex. P-9. Nelson determined that it was unlikely that the violation would result in an
injury, but that if it did, the injury would be permanently disabling, that the violation was not
S&S, that one person was affected, and that the operator's negligence was moderate. A civil
penalty in the amount of$237.00 has been proposed for this violation.
The horn was tested while Gojkovich was operating the scraper, and it did not work. I
find that the standard was violated, and agree that an injury was unlikely to result. However, for
the reasons discussed with respect to Citation No. 6330975, I find that the operator's negligence
was low, and that the violation would more likely have resulted in lost work days, rather than
permanent disability.
Citation No. 6330979
Citation No. 6330979 was issued on August 9, 2006, and alleges a violation of30 C.F.R.
§ 56.1410 l (a)(2), which requires that "[i]f equipped on self-propelled mobile equipment, parking
brakes shall be capable of holding the equipment with its typical load on the maximum grade it
travels." Ex. P-12. Nelson determined that it was unlikely that the violation would result in an
injury, but that if it did, the injury would be fatal, that the violation was not S&S, that one person
was affected, and that the operator's negligence was moderate. A civil penalty in the amount of
$291.00 has been proposed for this violation.
At Nelson's request, Gojkovich parked the 621 loader on an 8% grade, with a load in the
bucket, set the parking brake and released the service brake. The parking brake could not hold
the loader, which rolled down the grade. Tr. 197-98; ex. P-12. The only grades of consequence
on the property were on a ramp to facilitate loading of the screening plant and in the pit area.
The loader was rarely used in the pit area, and was parked, unloaded, on flat ground with the
bucket down. Ex. P-12. There is no indication that it was, or ever would have been, parked on a
grade, much less the 8% grade that it was tested on. There is also no evidence as to how
effective the parking brake was, e.g., whether it could hold the loader on a lesser grade, or on the
8% grade if it were not loaded. Under the circumstances, I find that the standard was violated,
and that there was no possibility of an injury occurring due to the violation. Nelson determined
that Ammon's negligence was moderate because it should have conducted a proper test of the
parking brake and discovered the deficiency. I agree with Nelson's determination of negligence.
Citation No. 6330978
Citation No. 6330978 was issued on August 9, 2006, and alleges a violation of30 C.F.R.
§ 56.12002, which requires that switches on electrical circuits "shall be of approved design and
30 FMSHRC 816

construction and shall be properly installed." Ex. P-10. Nelson determined that it was unlikely
that the violation would result in an injury, but that if it did, the injury would be fatal, that the
violation was not S&S, that one person was affected, and that the operator's negligence was
moderate. A civil penalty in the amount of $60.00 has been proposed for this violation.
While inspecting the screening plant, Nelson observed an electrical switch box on the
control panel that had two openings in it. One was a hole on the side of the box that he estimated
to be two inches in diameter.. The other was an open rigid conduit leading from the bottom of the
box, a few inches down into another box that was uncovered. Nelson believed, from his
discussions with Gojkovich, that power was provided to the box at 480 volts. Tr. 178-82;
ex. PIO, P-34, P-35. He felt that electrical connections inside the box could be "damaged by
moisture, dust or nesting insects," such that the box itself could become energized, exposing
persons in the area to "potential shock or bum injuries from leaking 480 volts." Tr. 187;
ex. P-10.
Peter Ammon testified that the box was energized with 110 volts, not 480 volts, and that
no electrical connectors were visible through the small hole in the side of the box, which was
plugged with a one-inch fitting to terminate the citation. Tr. 191-93; ex. P-62 at 33-34. Nelson
confirmed that the box and the electrical panel were grounded, and that Ammon' s grounding and
continuity testing were up-to-date. Tr. 188. Nelson was unable to explain how the grounded box
could become energized with power "leaking" from the electrical connections inside it. He
stated "[m ]y understanding of why we cite it is because if it bypassed the grounding system into
the metal enclosure and stuff." Tr. 188. Ammon also pointed out that electrical equipment, such
as the box, is not required to be weather-proof, that moisture, dust and nesting insects could get
into the box, even in the absence of the hole, and that the conduit leading from the bottom of the
box provided drainage. Tr. 185-86.
Ammon contends that the box was properly installed by an electrician, and that it had
been inspected several times at the Elfrida site and never cited. Tr. 191. I agree with the
Secretary that a properly installed switch box would not have openings that were left unplugged.
Consequently, I find that the regulation was violated. However, there was no possibility of
inadvertent contact with energized conductors inside the box and, because of the grounding
system, no possibility of the box becoming energized. I find that no injury could be expected to
result from the violation. The unexplained possibility that the grounding system could somehow
be bypassed is not.sufficient to increa5e the gravity beyond that level. I also find that the
operator's negligence was low. The defect was very minor, and had existed for a considerable
period of time. Ammon had relied upon the expertise of the electrician that it had retained to
rebuild the screening plant at its Elfrida site.
Citation No. 6330980
Citation No. 6330980 was issued on August 9, 2006, and alleges a violation of30 C.F.R.
§ 56.4430(a)(3), which requires that storage tanks for flammable or combustible liquids shall be

30 FMSHRC 817

"[i]solated or separated from ignition sources to prevent fire or explosion." Ex. P-13. Nelson
determined that it was reasonably likely that the violation would result in a permanently disabling
injury, that the violation was S&S, that one person was affected, and that the operator's
negligence was moderate. A civil penalty in the amount of $99.00 has been proposed for this
violation.
There are two fuel storage tanks located approximately 200 feet north of the shop. One
was elevated approximately four feet, and one was on the ground. They are depicted in
photographs taken by Nelson. Ex. P-26, P-27, P-28. There was a small patch of dried
tumbleweed underneath the elevated tank and alongside one end of the lower tank. There were
also some "plyboards" and a ladder on the ground next to the lower tank. Tr. 205-06. Peter
Ammon testified, without contradiction, that the ladder was made of aluminum, not wood.
Tr. 216, 219-20. Nelson viewed those combustibles as ignition sources which could, in tum, be
ignited by discarded smoking materials, lightning, vehicle exhaust, or a spark from a fire in the
area. Tr. 208-12. He did not see any signs of smoking in the area, and Ammon has a nonsmoking policy. Tr. 211, 219. Nelson also believed that any fuel spillage on the ground could
contribute to the hazard, although he did not identify any spillage, and vehicle refueling is done
at the south end of the long tank on the ground, which was not adjacent to the combustible
materials. Tr. 214, 218.
The presence of combustible materials in close proximity to the fuel tanks establishes the
violation. However, it does not appear reasonably likely that any of the materials would be
ignited in the normal course of continued mining activities, or that any fire that might result
would cause one of the tanks to explode or cause an injury to persons, who were rarely in the
area. The weeds might bum intensely, as Nelson claimed. However, that extremely small
quantity of weeds would burn for a very short period of time, and would be highly unlik~ly to
threaten the tanks.
I find· that the regulation was violated, but that the violation was not S&S, and that no
injury would be expected as a result. I also find that the operator's negligence was moderate.
Citation No. 6330981
Citation No. 6330981 was issued on August 9, 2006, and alleges a violation of30 C.F.R.
§ 56.4101, which requires that "[r]eadily visible signs prohibiting smoking and open flames shall
be posted where a fire or explosion hazard exists." Ex. P-15. Nelson determined that it was
unlikely that the violation would result in an injury, but if it did, the injury would be permanently
disabling, that the violation was not S&S, that one person was affected, and that the operator's
negligence was moderate. A civil penalty in the amount of $60.00 has been proposed for this
violation.
There was a faded "No Smoking" sign on the lower tank that Nelson did not notice
during the inspection. Tr. 226-27; ex. R-13. The sign is barely readable, and Peter Ammon

30 FMSHRC 818

noted that it was faded and not in good condition during his deposition. Ex. P-62 at41. I find
that the faded sign was not "readily visible," as required, and that the regulation was violated.
I also find that the violation was unlikely to result in an injury. Any injury that would be
expected to result from the violation would be a burn that would most likely result in lost work
days, rather than permanent disability. I agree that the operator's negligence was moderate.
Citation No. 6330982
Citation No. 6330982was issued on August 9, 2006, and alleges a violation of30 C.F.R.
§ 56.12008, which requires that "[p]ower wires and cables shall be insulated adequately where
they pass into or out of electrical compartments. Cables shall enter metal frames of motors,
splice boxes, and electrical compartments only through proper fittings. When insulated wires
other than cables pass through metal frames, the holes shall be substantially bushed with
insulated bushings." Ex. P"'18. Nelson determined that it was unlikely that the violation would
result in an injury but, if it did, the injury would be fatal, that the violation was not S&S, that one
person was affected, and that the operator's negligence was moderate. A civil penalty in the
amount of $60.00 has been proposed for this violation.
A water tank, installed on a concrete pad, was located about 200 feet north of the shop.
An electrical switch box was located adjacent to the pad, and wires ran from it to a water pump
and a diesel fuel pump. The wire running to the water pump entered an opening in the box that
had no bushing. The insulation on the inner conductors was intact and in good condition. The
condition is depicted in photographs taken by Nelson. Ex. P-30, P-31. The water system
supplied by the pump was primarily associated with the shop and a toilet located therein.
Running water was supplied to the shop following the inspection, but was shut down after the
pipes froze during the following winter.
Ammon's defense to this violation is based on its jurisdictional argument, i.e., that no
water was used in the screening operation. Resp. Br. at 20. As depicted in the photographs,
there was no bushing or proper fitting where the wire passed into the box. I find that the
regulation was violated, and agree that a fatal injury was unlikely and that the operator's
negligence was moderate.
The Ap_propriate Civil Penalties
Ammon Enterprises is a very small mine operator, with no larger controlling entity.
The vast majority of the material extracted from its pits is used in its other business enterprises.
A small amount of gravel is sold to local consumers. It has no violations that were paid or
otherwise became fmal within the 24-month period preceding the issuance of the subject order
and citations. Although Ammon claims to have had negative income in 2005, it does not claim
that imposition of the proposed penalties would affect its ability to remain in business. Several
of the alleged violations were not timely abated, which was taken into account in the penalty
assessment process. With one exception, Ammon' s defense to those violations was based upon

30FMSHRC 819

its jurisdictional arguments, and no further enforcement action was taken, apparently because of
Ammon' s temporary closure of its mining operations in September of 2006. Under the normal
penalty assessment formula in effect at the time, failure to abate a violation resulted in ten
additional penalty points and no application of the 30% reduction factor for good faith.
30 C.F.R. § 100.3(f) (2006). In view of the temporary closure, full imposition of both
enhancement factors is not entirely warranted, except as to Citation No. 6330979, the violation
related to the 621 loader's parking brake. The gravity and negligence associated with the
violations have been discussed above.
Order No. 6330985 is affirmed. However, the violation is found to have been non-S&S
and the operator's negligence moderate, rather than high. A specially assessed civil penalty in
the amount of$500.00 has been proposed for this violation. Rejection of the S&S designation
and lowering of the negligence designation justify a lowering of the civil penalty. I impose a
penalty in the amount of $150.00, upon consideration of the above and the factors enumerated in
section l lO(i) of the Act.
Citation No. 6330984 is affirmed. A civil penalty in the amount of$193.00 has been
proposed for this violation. Upon consideration of the factors enumerated in section l lO(i) of the
Act, and reducing the impact of the non-abatement due to Ammon's temporary closure, I impose
a penalty of$120.00.
Citation No. 6331001 is affinned. However, the operator's negligence is found to have
been low, rather than high. A specially assessed civil penalty in the amount of$1,000.00 has
been proposed for this violation. The lowering of the negligence designation justifies a lowering
of the civil penalty. I impose a penalty in the amount of$250.00, upon consideration of the
above and the factors enumerated in section l lO(i) of the Act.
Citation No. 6330983 is affirmed. However, the violation is found to have been likely to
result in an injury resulting in lost work days, rather than permanent disability, and the·operator's
negligence moderate, rather than high. A civil penalty in the amount of $327 .00 has been
proposed for this violation. Reductions in the severity of possible injury and the negligence
designations justify a lowering of the civil penalty. Upon consideration of the above, the factors
enumerated in section 11 O(i) of the Act, and reducing the impact of the non-abatement due to
Ammon's temporary closure, I impose a penalty in the amount of$125.00.
Citation No. 6330970 is affirmed. A civil penalty in the amount of$60.00 has been
proposed for this violation. Upon consideration of the factors enumerated in section 1 lO(i) of the
Act, I impose a penalty of$60.00.
Citation No. 6330971 is affirmed. However, it is found that no injury was likely because
of the violation and the operator's negligence was low, rather than moderate. A civil penalty in
the amount of $60.00 has been proposed for this violation. The absence of a possible injury and
lower negligence rating justify a reduction to the civil penalty. I impose a penalty in the amount

30 FMSHRC 820

of$30.00, upon consideration of the above and the factors enumerated in section 1 IO(i) of the
Act.
Citation No. 6330972 is affirmed. However, it is found that no injury could have been
expected and the operator's negligence was low, rather than moderate. A civil penalty in the
amount of$237.00 has been proposed for this violation. The lowering of the gravity and
llegligence determinations justify a lowering of the civil penalty; Upon consideration of the
above, the factors enumerated in section 11 O(i) of the Act, and reducing the impact of the nonabatement due to Ammon's temporary closure, I impose a penalty in the amount of$70.00.
Citation No. 6330975 is affirmed. However, the operator's negligence is found to have
been low, rather than moderate. A civil penalty in the amount of$178.00 was proposed for this
violation. The lowering of the negligence designation justifies a lowering of the civil penalty.
Upon consideration of the above, the factors enumerated in section 11 O(i) of the Act, and
reducing the impact of the non-abatement due to Ammon's temporary closure, I impose a penalty
in the amount of $80.00.
Citation No. 6330976 is affirmed. However, the violation is found to have been likely to
result in an injury resulting in lost work days, rather than a fatality, and the operator's negligence
low, rather than moderate. A civil penalty in the amount of$354.00 has been proposed for this
violation. Reductions in the severity of possible injury and operator's negligence justify a
lowering of the civil penalty. Upon consideration of the above, the factors enumerated in section
LIO(i) of the Act, and reducing the impact of the non-abatement due to Ammon's temporary
~losure, I impose a penalty in the amount of$100.00.
Citation No. 6330977 is affirmed. However, the violation is found to have been likely to
:esult in an injury resulting in lost work days, rather than permanent disability, and the operator's
iegligence low, rather-than moderate. A civil penalty in the amount of $237.00 has been
)roposed for this violation. Reductions in the severity of possible injury and operator's
iegligence justify a lowering of the civil penalty. Upon consideration of the above, the factors
mumerated in section l IO(i) of the Act, and reducing the impact of the non-abatement due to
~on's temporary closure, I impose a penalty in the amount of$80.00.
Citation No. 6330978 is affirmed. However, it is found that no injury was expected to
·esult from the violation, and the operator's negligence was low, rather than moderate. A civil
>enalty in the amount of$60.00 has been proposed for this violation. Reductions in the severity
>fpossible injury and operator's negligence justify a lowering of the civil penalty. I impose a
>enalty in the amount of$30.00, upon consideration of the above and the factors enumerated in
:ection l lO(i) of the Act.
Citation No. 6330979 is affirmed. However, it is found that no injury was expected to
esult from the violation. A civil penalty in the amount of $291.00 has been proposed for this
•iolation. Lowering of the gravity justifies a lowering of the civil penalty. I impose a penalty in

30 FMSHRC 821

the amount of $110.00, upon consideration of the above and the factors enumerated in section
11 O(i) of the Act.
Citation No. 6330980 is affirmed. However, the violation is found to have been nonS&S, and no injury was expected to result from it. A civil penalty in the amount of $99.00 has
been proposed for this violation. Rejection of the S&S designation justifies a lowering of the
civil penalty. I impose a penalty in the amount of$60.00, upon consideration of the above and
the factors enumerated in section 11 O(i) of the Act.
Citation No. 6330981 is affirmed. However, the violation is found to have b~en likely to
result in an injury resulting in lost work days, rather than permanent disability. A civil penalty in
the amount of$60.00 has been proposed for this violation. Lowering of the gravity of the
violation justifies a modest reduction to the civil penalty. I impose a penalty in the amount of
$40.00, upon consideration of the above and the factors enumerated in section l lO(i) of the Act.
Citation No. 6330982 is affirmed. A civil penalty in the amount of$60.00 has been
proposed for this violation. Upon consideration of the factors enumerated in section 11 O(i) of the
Act, I impose a penalty of $60.00.
ORDER
Citation Nos. 6330970, 6330984 and 6330982 are AFFIRMED; Order No. 6330985 and
Citation Nos. 6331001, 6330983, 6330971, 6330972, 6330975, 6330976, 6330977, 6330978,
6330979, 6330980 and 6330981 are AFFIRMED, as modified; Citation Nos. 6330973 and
6330974 are VACATED; and, Respondent is directed to pay a civil penalty of $1,365.00 within
45 days.

Distribution (Certified Mail):
Cheryl L. Adams, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson Street,
Suite 1110, San Francisco, CA 94105-2999
Peter J. Ammon, Ammon Enterprises, P.O. Box 176, Dragoon, AZ 85609

30 FMSHRC 822

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
601 NEW JERSEY AVENUE N. W., SUITE 9500
WASHINGTON, D.C. 20001

July 11, 2008
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 2008-114
A.C. No. 15-07475-128085 -01

SOLID ENERGY MINING COMPANY,
Respondent

Mine#l

DECISION
Appearances: Donna E Sonner, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, Anthony Burke, Conference and Litigation Representative,
U.S. Department of Labor, Pikeville, Kentucky, and Rodney Ingram, Conference
and Litigation Representative, U.S. Department of Labor, Pikeville, Kentucky, on
behalf of the Petitioner;
Carol Ann Marunich, Esq, Dinsmore and Shohl, LLC, Morgantown, West
Virginia, on behalf of the Respondent.
Before:

Judge Melick

This case is before me upon a petition for civil penalty filed by the Secretary of Labor
pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq., the "Act," charging Solid Energy Mining, (Solid Energy) with two violations of mandatory
standards and proposing civil penalties for the violations. The general issue before me is whether
Solid Energy violated the cited standards and, if so, what is the appropriate civil penalty to be
assessed in accordance with section l lO(i) of the Act. Additional specific issues are addressed as
noted.
Citation Number 6645303
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:
Combustible float coal dust is present in the 3-B coal conveyor belt entry from #3 belt
drive thru break #8. The combustible float coal dust is present on the mine floor, belt
structure, waterline and coal ribs. The combustible float coal dust is dark to black in
color on previously rock dusted surfaces and float coal dust is dry.
The cited standard provides that "[c]oal dust, including float coal dust deposited on rock
dusted surfaces, loose coal and other combustible materials, shall be cleaned up and not be
30 FMSHRC 823

permitted to accumulate in active workings, or on diesel-powered and electric equipment
therein."
Roger Workman, an inspector for the Department of Labor's Mine Safety and Health
Administration (MSHA) testified that he observed float coal dust "black and dark in ~olor'' in the
3-B coal conveyor belt entry from the number 3 belt drive through break number 8. He noted
that the float coal dust was "dry textured" and that the mine was under a "Section 103(i)" 15 day
spot inspection required of mines liberating more than 250,000 cubic feet per minute of methane
in a 24-hour period. fie found that the float coal dust was deposited on the mine floor, on the
belt structure and on the water lines and extended over approximately 642 feet. 1 Workman
observed that there were omega block seals in the area sealing off mined-out areas in which he
surmised methane was present. He testified that such seals "could possibly'' collapse in the
event of an explosion behind the seals. Workman speculated that if there was an intake of
methane and an explosion occurred such an explosion could be further propagated by the
suspension of the coal dust with burns and smoke inhalation and "possible entrapment" resulting.
Workman further observed that only a mine examiner once each shift would be in the exposed
area. He therefore opined that only one person would be affected by any explosion but
concluded that if an injury occurred it would likely be serious. Workman concluded that the
condition had existed several shifts "based on my experience".
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 result in an injury or illness of a reasonably serious nature. Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1,
3-4(January1984), 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- - contributed to by the violation, (3) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.
See also Austin Power Co. v. Secretary, 861F.2d99, 103-04 (5th Cir. 1988), aff'g
9 FMSHRC 2015, 2021(December1987) (approving Mathies criteria).
The third element of the Mathies formula requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result in an event in which there is an
injury. US. Steel Mining Co., 6FMSHRC1834, 1836 (August 1984), and also that the
likelihood of injury be evaluated in terms of continued normal mining operations. US. Steel
Mining Co., Inc., 6 FMSHRC 1573, 1574(July1984); See also Halfway, Inc., 8 FMSHRC 8, 12

· 1 The transcript incorrectly reads that the coal dust was on ''wire lines" rather than on
''waterlines".

30 FMSHRC 824

(January 1986) and Souihern Ohio Coal Co., 13 FMSHRC 912, 916-917 (June 1991).
While I find that the Secretary has sustained her burden of proving the existence of the
violation I do not find that she hasmet her burden of proving the violation was either "significant
and substantial" or of high gravity. The Secretary presented nothing more than speculative
testimony regarding any possible ignition source for the cited coal dust. Workman first
acknowledged that there was no loose coal found and that the float coal dust was paper thin in
depth. He did not test for combustibility and based his conclusion regarding the explosive nature
of the dust only upon its color. Workman further acknowledged that he observed no ignition
sources in the vicinity of the coal dust and had been told that the area had been rock dusted
earlier in the shift. He found no methane outside the sealed area and did not know the methane
level behind the seals as of the date of the alleged violation. Moreover, the issuing inspector
failed to provide a responsive answer to establishing the third element of the Mathies formula i.e.
whether there was a reasonable likelihood that the hazard would result in an event in which there
was an injury {Tr. 24, lines16-20).

In addition, mine foreman David Jude testified that he accompanied Inspector Workman
on the inspection at issue. According to Jude, they traveled the entire length of the 3,500-foot 3B belt. Jude felt that overall the belt was pretty good and the area cited by Workman had only
about 1/16 of an inch of coal dust. Jude testified that the belt is dusted regularly and that the
mine had about six to eight miles ofbeltline to maintain. According to Jude, they tried to rock
dust every night on the third shift and they had fire bosses who walked the belt line and had
authority to order rock dusting where needed. In Jude's expert opinion, the dust cited by
Workman was unlikely to have been combustible. He also noted that the belt at issue was fire
retardant and should not burn. Furthermore, Jude noted that the mine had no history of ignitions.
Under all the circumstances, then, I do not find that the Secretary has met her burden of provmg
that the violation was "significant and substantial" or of significant gravity. I find, however, that
the Secretary has e~tablished that the violative condition was the result of Solid Energy's
moderate negligence. It may reasonably be inferred- -from the fact that over four shifts
(beginning with the first shift on August 13, 2007, through the second shift on August 14, 2007),
it was reported by amine examiner that the cited 3-B belt needed additional rock dusting and that
no corrective action was reported to have been taken- -that the operator knew or should have
known of the existence of the cited condition (Gov't Exh. No. 7).
Citation Number 6645306
This citation, issued on August 20, 2008, alleges a "significant and substantial" violation
of the standard at 30 C.F.R. § 75.l 725(a) and charges as follows:
The Fairchild scoop (Serial No. T339-128) located at the 3-B coal conveyor belt drive, in
the track entry is not being maintained in a safe condition. The breaker on the scoop
could not be reset from the operating compartment as required. When the breaker was
reset with the pump motor in the on position the scoop would tram without turning the

30 FMSHRC 825

controls to the off position first. The operator immediately removed the scoop from
service.
The cited standard provides that "(mobile] and stationary machinery and equipment shall
be maintained in safe operating condition and machinery or equipment in unsafe condition shall
be removed from service immediately."
It is undisputed that the cited scoop had been designed to have a lever in its cab which
was connected mecharucally by a cable to the circuit breaker. Inspector Workman was of the
belief that the cable was either broken or disconnected but was told that a new cable had been
utilized to abate the condition. According to Workman, the circuit breaker on the scoop could
not be reset from the operator's compartment but the breaker had to be reset outside the
compartment and with the pump motor in the "on" position the scoop would tram without first
turning the controls to the "off' position. According to Workman, the scoop could therefore run
over a person or trap a person in its path. He felt the violation was "significant and substantial"
because he believed there was a likelihood of a person being struck by the trammed scoop to
suffer broken bones, crushing injuries and death. According to Workman, only one person, i.e.
the machine operator, would be affected by the alleged defect. Workman charged the operator
with moderate negligence because the equipment is required to be examined on a weekly basis.
He admitted however that he did not know whether anyone knew of the alleged defect.

Mine foremen David Jude testified that the cited scoop was an "outby" scoop used only
if something broke down and for miscellaneous work. It was used not on a regular basis. When
the citation was issued, the scoop was being charged. He admitted that the cable was broken
from the breaker switch and could not be reset from the cab but only from the outside. Jude
testified, however, that the tram motor and the pump motor are separate on this equipment and
that the breaker controlled only the pump motor. Therefore, according to Jude, the scoop could
not move if the breaker was switched "on" unless someone was in the operator's compartment
pressing the peddle that would tram the equipment.
Considering Jude's greater familiarity with the cited equipment, I give his testimony the
greater weight and find that the cited defect presented only a minimal hazard and not the hazard
described by Inspector Workman. It is apparent that while someone might be resetting the
breaker switch outside the operator's compar1ment, the operator could inadvertently begin
tramming the scoop before that person was clear of the scoop thereby possibly sustaining
injuries. Under the circumstances, I find that the violation is proven as charged but is of minimal
gravity and lessened negligence. The violation certainly does not meet the criteria for a
"significant and substantial" violation since, based on the credible expert testimony of mine
Foreman Jude, the scoop could only have been trammed with its operator in the compartment. I
find that injuries to the scoop operator were not reasonably likely since he woul~ of necessity, be
in the operator's compar1ment when the scoop would tram.

30 FMSHRC 826

Civil Penalties
Under Section 110(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. The record indicates that the violative conditions herein were
abated in a timely manner. There is no evidence that the penalties imposed herein would affect
the operators ability to continue in business. The gravity and negligence findings have
previously been discussed. Under the circumstances, I find that penalties of $500.00 for Citation
Number 6645303 and $100.00 for Citation Number 6645306 are appropriate~

ORDER
Citation numbers 6645303 and 6645306 are affirmed but without "significant and substantial"
findings. Solid Energy Mining Company is hereby directed to pay civil penalties of $500.00 and
$100.00 respectively for the violations charged therein within 40 days of the date of this decision.

Gary Melick
Administrative Law Judg
(202) 434-9977
Distribution: (Certified Mail)
Donna E. Sonner, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456
Carol Ann Marunich, Esq., Dinsmore & Shohl, LLP, 215 Don Knotts Boulevard, Suite 310,
Morgantown, WV 26501
/lh

30 FMSHRC 827

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

July 25, 2008
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 2006-439
A. C. No. 15-18956-93047

V.

Miles Branch Mine

NATIONAL COAL CORPORATION,
Respondent

DECISION
Appearances: Christian P. Barber, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Petitioner;
Charles W. Kite, Esq., General Counsel, National Coal Corporation, Knoxville,
Tennessee, for Respondent.
Before:

Judge Hodgdon

This case is before me on a Petition for Assessment of Civil Penalty brought by the
Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA), against
National Coal Corporation, pursuant to section 105 of the Federal Mine Safety and Health Act of
1977, as amended, 30 U.S.C. § 815. The petition alleges a violation of the Secretary's mandatory
health and safety standards and seeks a penalty of $625.00. A hearing was held in Maryville,
Tennessee. For the reasons set forth below, I vacate the citation.

Backa:round
National Coal Corporation (NCC) operates the Straight Creek #2 Mine, a surface coal
mine, in Bell and Harlan counties, Kentucky. On Friday, March 17, 2006, the highwall at the
mine collapsed in the late afternoon or early evening. Two pieces of equipment, a highwall
miner and a front-end loader, were damaged in the collapse. Don McDaniel, NCC's Safety
Director, notified MSHA of the incident at around 6:00 p.m.
At about 7:30 a.m. the next day, McDaniel, Charles Asbury, NCC General Manager, and
Bill Snodgrass, NCC Chief Operating Officer, among others, went to the mine to recover the
damaged equipment. After a safety plan was developed and written up, the company began
working.

30 FMSHRC 828

MSHA Inspector Marvin Hoskins was directed by his supervisor to investigate the
collapse on the morning of March 18. It took him awhile to find the mine and he did not arrive at
the site until sometime after 2:00 p.m. As he drove up to the area of the highwall, it appeared to
him that the company's excavator was operating within range of an unsupported highwall which
had not been secured. After getting out of his car, he got his camera from the charger and met
with Snodgrass, who had walked to meet him. The inspector walked over the grounds and took
numerous pictures. As a result of his investigation, he issued the 104(d)(l) citation, 30 U.S.C.
§ 814(d)(l), being contested in this proceeding. 1

Findines of Fact and Conclusions of Law
This case is all about perspective. In the company's view, they were safely attempting to
remove equipment damaged in the highwall collapse and committed no violation. From the
Secretary's vantage point, NCC was removing equipment from within the potential falling
distance of the remaining unstable portion of the highwall and, therefore, was working under a
dangerous highwall. However, it the inspector's conclusions as he arrived on the scene which
govern the outcome, and I find that his slanted perspective caused him to reach the wrong
conclusions.
Inspector Hoskins issued Citation No. 7525907, alleging a violation of section
77.1006(a), 30 C.F.R. § 77.1006(a), because:
The mine experienced a failure of the highwall and miners
were working under the highwall that was broken loose and had
not fallen. The miners were not correcting the condition, they were
recovering equipment that was damaged by the highwall failure.
They used a bull dozer to remove the damaged forklift. They were
also observed using an excavator[] to remove[] rock from the
highwall miner beam and head.
(Govt. Ex. 3.) Section 77.1006(a} requires that: "Men, other than those necessary to correct
unsafe conditions shall not work near or under dangerous highwalls or banks."
When McDaniel, who had been an MSHA inspector from 1975 through 2006, and
Asbury arrived at the mine on Saturday morning, they drew up a written safety plan for removing
the damaged equipment. (Tr. 80, 100-101, 117.} The plan provided that no one would work on
the left side of the damaged highwall miner, that miners would be posted at different locations
around the pit to watch for activity from the highwall and to warn the miners performing the

1

Section I 04(d}( I} of the Act assigns more severe sanctions for any violation that is "of
such nature as could significantly and substantially contribute to the cause and effect of a ...
safety or health hazard" and is caused by "an unwarrantable failure of[an] operator to comply
with ... mandatory health or safety standards."
30 FMSHRC 829

recovery work of such activity, that the front-end loader would be recovered first and that the
miner head would be disconnected from the highwall miner. (Resp. Ex. 2, Tr. 81, 101, 117-118.)
The reason no one was to work on the left side of the miner was that the remaining unstable
highwall was to the left of the miner. (Tr. 94-95.) The road coming into the mine from the left
was blocked off. (Tr. 83.) Before beginning any work, NCC held a meeting with all miners to
inform them that no one was allowed to be on the left side of the miner. (Tr. 88.)
The front-end loader (also referred to as a forklift by witnesses), which was on the right
side of the highwall miner, was pulled from under the fallen rock by the boom of an excavator.2
(Tr. 106.) After the front-end loader had been pulled out, it was hooked to a bulldozer and towed
completely out of the way. (Tr. 106.) Then, the excavator cleaned the fallen rock off of the front
of the highwall miner and the miner was started up and backed out of the area under its own
power. (Tr. 95, 106.) After that, the only equipment remaining was the miner head which had
broken off from the miner and was under a pile of fallen rock. (Tr. 106.)
The excavator was pulling the rock off of the miner head when McDaniel left the area at
2: I 0 p.m. (Tr. 86.) Once the rock was removed from the miner head, the plan was to pull the
miner head out with the excavator. (Tr. 110-11.)

The excavator was still removing rock from the miner head when Inspector Hoskins
arrived at around 2:30 p.m. (Tr. 107-8.) As he pulled up, Snodgrass went over to meet him. {Tr.
120.) The inspector testified that:
[A]s I was pulling up that I could see through the windshield
clearly that there was an excavator was [sic] digging at a rock pile
at the base of the highwall and there was [sic] some people on the
right-hand side. I noticed a person distinctly had on a white hard
hat was standing on the right-hand side. I could see him. As I
pulled up I clearly saw him make a hand motion and he started
proceeding walking towards me. And at that point I was calling
my supervisor to let him know that I had found the operation ....
(Tr. 15-16.) Snodgrass arrived while he was still on the phone. {Tr. 16.) Inspector Hoskins got
out of the car and told Snodgrass why he was there. (Tr. 16.) Then he got his hard hat out of the
car and put it on, got his camera battery off of the charger and got his camera out of the car and
the two men proceeded toward the pit area. (Tr. 17.) The inspector began taking pictures as he
was walking toward the pit. (Tr. 17.)
fuspector Hoskins testified that he issued the citation because he believed miners were
2

An excavator is a backhoe on tracks. It has a boom with a reach of approximately 40
feet and a bucket on the end of the boom which is pulled back toward the excavator by the boom.
(Tr. 75-76.)
30 FMSHRC 830

working under a highwall which had broken loose, but had not fallen and
[t]he miners were not correcting the condition. They were
recovering equipment that was damaged by the highwall failure.
They used a bulldozer to remove the damaged forklift, and that is
per discussion with them on Saturday. And they were observed
using an excavator to remove rock from the highwall miner and the
head, and that's what I observed them doing when I arrived.
(Tr. 40.) He went on to state that: ''The operator was not supporting the highwall. He was
actually destabilizing the highwall by prying loose rubble loose from the base of it. And that
made it a very hazardous condition .... " (Tr. 41.) fu fact, the inspector did not see eitherthe
front-end loader or the highwall miner removed. {Tr. 55-57, 65-66.)
More importantly, although fuspector Hoskins took numerous photographs during his
investigation, 12 of which were put in evidence, there is no photograph of the excavator, either in
operation or at rest. That is because when the inspector met Snodgrass, he told Snodgrass that
the excavator should not be in the pit and Snodgrass signaled for it to be removed. {Tr. 52, 121.)
Nonetheless, the inspector testified, and indicated on one picture, that the excavator was located
to the left of the miner head. (Govt. Ex. 7, Tr. 22.)

I find that fuspector Hoskins was mistaken in his location of the excavator. fu the first
place, all of the company witnesses testified that the excavator was operating wellto the right of
the miner head. {Tr. 81-82, 102-03, 123.) While their relationship with NCC could provide a
motive for not telling the truth, the facts corroborate them. The safety plan, drawn up before any
work began, specifically provided that all work would be done to the right of the highwall miner.
Further, the sole purpose of the work being performed was to recover the damaged equipment
and there was no damaged equipment to the left of the miner head. There was no reason for the
excavator or any part of it to be to the left of the miner head. Finally, the company's stake in this
case is not significant enough to justify inducing its employees to contrive evidence.
On the other hand, the only view that fuspector Hoskins got of the excavator was obtained
while he was driving his car on a dirt road into the pit, parking his car, calling his supervisor,
getting out of his car, putting on his hard hat, getting back in his car to get his camera battery and
camera, and meeting Snodgrass. It is apparent from the first picture he took, another he took
from the other side of the pit which shows the location of his red van and one from behind his
van, that at best he was viewing the scene from a 30 degree angle. (Govt. Exs. 5, 14 & 15, Tr.
32.) From that perspective, it would difficult to place the excavator in its exact location. fudeed,
the inspector admitted as much on cross examination:

Q. Let's look back at Seven. Can you testify with absolute
certainty that that excavator was on the left-hand rather than the
right-hand side of that beam that's clearly visible in Exhibit Seven?

30 FMSHRC 831

A. What I can testify to is that I saw the excavator bucket touching
rock. Now, whether it was on the left side of the beam or on the
right side of the beam is irrelevant due to the height of the
highwall, that it could have reaching from the left-hand side or the
right-hand side of that beam.
(Govt. Ex. 7, Tr. 54.)
The location of the excavator is relevant, however. As the head-on picture of the miner
head (also referred to as a beam) and highwall clearly shows, the head is several yards to the right
of the unstable portion of the highwall that had not fallen. (Govt. Ex. 7.) There was no
dangerous highwall to the right of the miner head.
Accordingly, I find that the excavator was not working under a dangerous highwall. Nor
was it prying loose rubble from the base of the unstable highwall. Furthermore, I find the
opinions of McDaniel, Asbury and Snodgrass, that if the remaining unstable highwall, which was
leaning back against the wall from which it had become disconnected, did collapse, it would
slide straight down the wall, more persuasive than the inspector's assumption that it would fall
forward from the top. (Tr. 42, 85, 91, 105, 124.) Consequently, I find that the excavator was not
working under an unstable highwall.
Further, the evidence does not support Inspector Hoskins' conclusion that the front-end
loader was removed from under the unstable highwall. The Secretary's brief does not address
this issue in its Conclusions of Law. (Sec. Br. 15-18.) Moreover, as previously noted, the
inspector did not observe the removal, but based the charge on "the basis of the testimony that
they had walked in there on foot. And the exact location of the forklift, I could not have
determined at that time." (Tr. 56-57.) None of the miners who provided this information to the
inspector testified at the trial. Even so, he placed the loader "between the highwall and the
highwall miner on the right-hand side of the highwall." (Tr. 56.) This conforms to the testimony
of McDaniel and Asbury that the front-end loader was well to the right of the hazardous highwall
when it was removed. (Tr. 88, 106.) Therefore, I find that the loader was not removed from
under a highwall that was broken loose and had not fallen.

In summary, the Secretary has not proven that NCC violated section 77 .1006(a). The
company reported the highwall collapse to MSHA as soon as it happened. Company employees
arrived at the mine the next morning to begin cleaning up. They first drew up a safety plan to
insure that no work was done under the remaining unstable highwall. As an additional safety
measure, spotters were posted around the pit to sound the alarm in case the highwall started
moving. They then began removing the damaged equipment and were almost finished when the
inspector finally arrived on the scene. Based on a quick glimpse of the scene as he drove up, he
concluded that work was being performed under an unstable highwall. However, his view was

30 FMSHRC 832

made from a bad perspective and, thus, his conclusions were also bad. None of the other
evidence supports his assumptions. Accordingly, I conclude that the Secretary has not met her
burden of proof and the citation must be vacated.
Order
In view of the above, it is ORDERED that Citation No. 7525907 is VACATED and this
proceeding is DISMISSED.

d~~T. ToddHo/g;;;r"'"Administrative Law Judge
Distribution:
Christian P. Barber, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219
Charles W. Kite, Esq., Senior Vice President & General Counsel, National Coal Corporation,
8915 George Williams Road, Knoxville, Tennessee· 37923
/sr

30 FMSHRC 833

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

.JIM WALTER RESOURCES, INC.,
Contestant

July 25, 2008
CONTEST PROCEEDING
Docket No. SE 2006-141-R
Citation No. 7686228; 02/15/2006

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
JIM WALTER RESOURCES, INC.
Respondent

No. ?Mine
Mine ID 01-01401
CIVIL PENALTY PROCEEDING
Docket No. SE 2007-08
A.C. No. 01-01401-87100

No. 7Mine

DECISION
Appearances: Thomas Grooms, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the Petitioner;
Guy W. Hensley, Esq., Jim Walter Resources, Brookland, Alabama, for the
Respondent.
Before:

Judge Weisberger

Statement of the Case
This case is before me based upon a Notice of Contest filed by Jim Walter Resources
("Jim Walter"), challenging the issuance of a citation which alleges a violation of 30 C.F.R. §
75.400. Also at issue is a Petition for Assessment of Penalty filed by the Secretary of Labor
seeking the imposition of a penalty for the alleged violation.
Subsequent to notice, the case was heard in Birmingham, Alabama on January 15 and 16,
2007. Jim Walter filed proposed :findings of fact and conclusions of law on April 28, 2008. The
Secretary filed a "letter brief' on April 29, 2008. On May 12, 2008, Jim Walter filed a brief in

30 FMSHRC 834

response to the Secretary's "letter brief." 1

I.

Introduction

Jim Walter operates the No. 7 Mine, an underground coal mine. On February 15, 2006,
MSHA inspector John Smoot inspected the North A belt (also known as the North Main belt)
located in an intake air entry. The belt transported coal from the working face outby to the
belt header.
Smoot observed float coal dust on the roof, ribs, belt frame, and floor from crosscut three
inby to crosscut ten, a distance of approximately 867 linear feet. He described the float coal dust
as being black in color, and lying on top of rock dust. Smoot indicated that the accumulated coal
dust presented a hazard of a fire or explosion due to the presence of various ignition sources in
the entry. Smoot stated that in order to abate the violative conditions, he required that the area be
adequately rock dusted to dilute the float coal dust to a non-combustible state.
ID addition; according to Smoot, coal fines were located in horizontal layers, between

strata of rock dust. The fines extended throughout the belt area from the north header to crosscut
eleven, a linear distance of approximately 1,451 feet. He indicated that in one area he poked his
four foot aluminum walking stick through the material, and the pole went dov\Tn approximately
forty-eight inches. Smoot testified that at three or four locations, he used the claws at the bottom
of the walking stick to open a vertical hole, four by twelve to fifteen inches, that extended from
the top of the material to a maximum depth of one foot. According to Smoot, he looked down
the vertical holes and observed layers of coal fines between strata of rock dust.
Smith opined that the fines were still hazardous even though they had accumulated over a
significant period of time. According to Smoot, should the coal dust in the area propagate a
larger fire or explosion, the strata of rock dust on top and below the coal fines could be blown off
exposing the coal fines. He opined that accordingly they could enlarge a fire started by the
ignition of coal dust in the area. ID order to abate the accumulation of coal fines,· Smoot required
Jim Walter to physically remove them by shoveling, a task that took 5, 730 man-hours.

1

Subsequent to the hearing, on June 9, 2008, Jim Walter filed Defendant's Exhibits 9, 10
and 11 that had been marked but not admitted as they were considered voluminous.. Jim Walter
was told to select only the relevant pages and offer them post-hearing. The latter filed these
exhibits in their entirety. A showing has not been made that the exhibits are entirely relevant.
Accordingly, only the day shift entry for February 14, 2006, and the owl shift report for February
15, are admitted as Defendant's Exhibits 9. The balance of the offered Defendant Exhibit 9 and
Defendant's Exhibits 10 and 11 are not admitted, as they are not relevant to these proceedings.
30 FMSHRC 835

II.

Discussion
A.

Violation of 30 C.F.R. § 75.400

Section 75.400, provides, as pertinent, that "[c]oal dust, including float coal dust
deposited on rock-dusted surfaces ... and other combustible materials shall be cleaned up and
not be permitted to accumulate in active workings ...."
According to Smoot, he observed float coal dust "[o]n the roof, the ribs, the belt frame,
and the mine floor in an area from crosscut number three ... to the belt drive at crosscut number
ten" (Tr. 31-32), a distance of 876 feet. He noted the presence in the area of ignition sources
such as cables, electrical motors, switches and rollers.
Larry Taft, who, at the time of the trial was a state mine inspector, was the only person to
travel with Smoot on the day of the latter's inspection. Taft testified that the cited dust was grey
in color ''the best that I can remember." (Tr. 285) In later testimony, he indicated that based on
his experience, float coal dust is "dark grey-- dark medium grey to black." (Tr. 289) He was
asked whether he formed an opinion as to whether the cited coal dust created a violative
condition, and he responded as follows: "I don't remember, you know best I can remember ... it didn't look that bad. But then again, like I said, that's the best I can remember. We're talking
two years ago." (Tr. 286)

I find that Taft did not contradict Smoot's testimony regarding the location of the coal
dust on the roof, ribs, belt frame, and main floor, and that these accumulations extended 876 feet.
Also, he did not contradict Smoot's testimony regarding the presence of ignition sources in the
area.
I find, based on the uncontradicted testimony of Smoot, that the quantity of float coal dust
that had accumulated was such that it could have ignited. See Old Ben Coal Co., 2 FMSHRC
2806, 2808 (Oct. 1980).2 Thus, I conclude that the Secretary has established that Jim Walter was
not in compliance with Section 75.400.3

2

I note that Smoot did not measure the depth of the accumulations, nor did he test for
their combustibility. However, in establishing a violation, the absence of evidence of depth is
not, in and ofitself, a cause for vacating a Section 75.400 violation. See Old Ben Coal Co., 2
FMSHRC at 2807. Further, Section 75.400 does not by its terms require testing to determine the
percentage of combustible materials present. See Harlan Cumberland Coal Co., 20 FMSHRC
1275, 1290 (Dec. 1998).
3

Jim Walter challenges the finding in the citation at issue as well as the testimony of
Smoot regarding the existence of layered coal fines in an approximately four foot high vertical
wall throughout the length of the entry from the header inby to crosscut eleven. However,
inasmuch as a violation of Section 75 .400 has been established predicated upon the existence of
30 FMSHRC 836

B.

Sienificant and Substantial
1.

Case law

A "significant and substantial" violation is described in Section 104(d)(l) of the Act as a
violation "of such nature as could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard." 30 U.S.C § 814(d){l). A violation is
properly designated significant and substantial "if, based upon the particular facts surrounding
that violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature." Cement Division, National Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981).
In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission explained its
interpretation of the term "significant and substantial" as follows:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor
must prove: (1) the underlying violation of a mandatory safety standard; (2)
a discrete safety hazard--that is, a measure of danger to safety-contributed to
by the violation; (3) a reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.
Id. at3-4.

extensive float coal dust accumulations, it is not necessary, for purposes of establishing a
violation under Section 75.400, to also establish the existence of accumulations oflayered coal
fines.
At the trial, Jim Walter also attempted to challenge the method of abatement required by
MSHA, i.e. shoveling of the accumulation of coal fines. Since it is not necessary to decide the
issue of the existence of accumulated coal fines, a fortiori, it is not necessary to discuss their
abatement. In addition, Jim Walter has not addressed this issue in its Post Hearing Brie£
Accordingly, it appears that Jim Walter has abandoned this argument. Further, there is not any
provision in Section 105 of the Federal Mine Safety and Health Act of 1977 ("The Act") that
grants an operator an opportunity to challenge before the Commission the reasonableness of the
method of abatement required by the inspector, i.e. the removal of the fines by shoveling.
30 FMSHRC 837

2.

Smoot's testimony

Smoot testified that the hazard associated with float coal dust along a belt line is "[t]he
hazard of :fire or explosion." (Tr. 34-35) When asked to elaborate, he stated that "[b]elt rollers
[located every ten feet] can go bad at any given time on the belt. If you have electrical equipment
in the area. If there happened to spark or arc from the equipment, you could ignite the float coal
dust. [sic]" Id. (Emphasis added). fu this connection, he noted the presence in the cited area of
"electrical belt motors;" "cables going to the drive," and "an electrical control line running down
the length of the belt. Which at various areas are switches to start and stop the belt. [sic]" (Tr.
35)
Smoot explained that a hazardous condition would result "[i]f a rock was to fall and cut
one of the cables, you could get an arc out of a cable. Something's happening to one of the
motor casings, have an opening in one of the casings, you could get an arc igniting the fl.oat coal
dust. (sic]" (Tr. 36)
He testified further as follows:
At various times the bearings either seize, or go bad in the bearing, or
in the rollers, which could cause friction, heat. I have seen at times
before sparks flying offthe end ofthe rollers where the bearings were
bad.4 Shaft can break on one end of the roller, or the roller fall down
against the frame causing sparks from turning metal on metal.
Creating heat again. . . . It could possibly cause a fire. [sic]
(Tr. 37) (Emphasis added).

3.

Discussion

The record clearly establishes the first element set forth above, i.e., that Jim Walter did
violate a mandatory standard, i.e., Section 75.400. Also, based on the testimony of Smoot, I find
that the violation contributed to the risk of a hazardous condition, i.e., a potential ignition. The
issue presented herein relates to the third element in the Mathies criteria, the existence of a
reasonable likelihood that the hazard contributed to will result in an injury-producing event. fu
order to establish this element, the Secretary must prove that there was a reasonable likelihood of
an ignition.

In this connection, Smoot's direct testimony referred to the "happen[ing]" of sparking or

4

Smoot indicated that this is "[n]ot really" an "uncommon" occurrence. (Tr. 39)

30 FMSHRC 838

arcing from electrical motors, switches, or cables, which "could" ignite the float coal dust. (Tr.
35) However, Smoot in his testimony, did not express any opinion as to the likelihood of the
occurrence of sparking or arcing or a resulting ignition. Although his inspection notes contain a
statement that an ignition was "reasonably likely due to energized electrical equipment in the
affected area" (Government Exhibit 3, p. 3), there was not any evidence adduced at the hearing
that would tend to establish that it was reasonably likely that the equipment would produce an
electrical arc or spark resulting in ignition. Specifically, there was not any evidence adduced
with regard to the existence of any physical condition that would make it reasonably likely that
any equipment in the area would produce a spark or an arc. In this connection, Smoot admitted
on cross-examination that he did not find any non-compliance problems with the electrical
equipment. In the same fashion, whereaS Smoot testified that a cable could produce an arc if a
rock were to fall and cut it, he admitted on cross-examination that there had not been any roof
falls in the cited area, nor were there any problem with the roof.
Similarly, whereas he testified that "at various times" bearing seize, or a roller shaft "can"
break (Tr. 35), or fall against the belt frame causing friction, heat, or sparks, there was not any
evidence adduced regarding the existence of any physical conditions that would tend to establish
that these ignition-causing events were reasonably likely to occur. Indeed, Smoot indicated on
cross-ex3.mination that there were not any ''bad roller[ s],"rollers turning in coal, cutting into
"anything," or "smoking." (Tr. 99) Nor was the belt misaligned.
·

Based on all of the above, I find that the Secretary's evidence is insufficient to establish
that there was a reasonable likelihood of an ignition. Therefore, I find that the third element set
forth in Mathies, 6 FMSHRC 1, was not established, and thus the violation was not significant
and substantial.

C.

Penalty

I find, for the reasons set forth above, II(B), infra, that the accumulated float coal dust
could have resulted in a fire or explosion. Further, according to the uncontradicted testimony of
Smoot, this hazard could cause bums or smoke inhalation. The citation at issue alleges that lost
workdays or restricted duty could be expected. Jim Walter did not rebut this allegation. I thus
find that the level of gravity of the violation was moderate.
Evidence was not adduced regarding the length of time the specific violative conditions
had been in existence. However, I note that on February 2, 2006, Jim Walter was cited for the
existence of float coal dust accumulations on the roof, rib and floor the belt entry in question
between crosscuts nine and seven for approximately 200 feet, the violative conditions were
removed, and the cited areas were rock dusted the following day. It thus might be inferred that at
least on February 2, 2006 an MSHA inspector did not observe float coal dust in any other areas
in the entry in question aside from between crosscuts seven to nine. Thus, an inference might be

of

30 FMSHRC 839

raised that the accumulations observed and cited by Smoot on February 15, had occurred
sometime subsequent to February 3, 2006, and thus, at the maximum, had been in existence for a
maximum of twelve days prior to being cited on February 15.
Jim Walter did not adduce any evidence that the accumulations had occurred just prior to
Smoot's inspection. 5 fudeed, the extent of the accumulations, running approximately 867 linear
feet, would indicate that they had been in existence for some significant time prior to February
15, 2006. Due to the extent of the accumulations, and the lack of evidence adduced by Jim
Walter that it did not have either notice or knowledge of the extensive accumulations,6 and for all
the reasons set forth above, I find that the level of negligence was moderate.
The parties stipulated that the assessed penalty will not impair Jim Walter's ability to
remain in business. The parties further stipulated that Jim Walter demonstrated good faith
abatement. There was not any evidence adduced that the penalty sought would not be
appropriate to the size of Jim Walter.
Considering all of the above factors as set forth in Section 1lO(i) of the Act including the
operator's history of previous violations7 in the two year period prior to February 15, 2006, I find
that a penalty of$250.00 is appropriate for the violation found herein.

5

fu its brief, Jim Walter refers to the Belt Crew Rmort for the day shift July 14, 2006
which contains the following notation: "l cleaned N.M. TN-3." Not much weight was accorded
this entry as it is not clear whether the cleaning was performed in the cited area. Indeed, Jim
Walter failed to produce any witness who either made this entry or who performed the cleaning.
6

Jim Walter cites the lack of any entry for the owl shift February 15, 2006, relating to the
need for further work in the North Main belt area as support for an inference that it surveyed the
entry, and determined it did not need additional cleaning and rock dusting. Inasmuch as Jim
Walter did not adduce any direct evidence relating to conditions observed on the owl shift on
February 15, any finding that the entry did not need additional cleaning would be mere
conjecture.
7

Jim Walter argues, in essence, that the history of violations should not be accorded any
weight because the Secretary did not establish the number of citations that related only to the
mine at issue. Also Jim Walter argues that the data therein was inflated, as it lists citations
issued to all its mines, and includes citations other than those that were paid or were finally
adjudicated. Jim Walter bases the latter argument on limitations imposed at 30 C.F.R. § 100.3,
which sets forth criteria to be considered by MSHA in proposing a penalty. In contrast, in the
instant de novo proceeding the Commission and its Judge must consider Section 11 O(i) of the
Act, which sets forth that one of the criteria to be considered is the operator's "history of
violations." Id. It is significant that the phrase is not qualified, nor does it provide for any
limitations, in contrast with Section 100.3.
30 FMSHRC 840

ORDER

It is Ordered that the Notice of Contest, Docket Number SE2006-141-R, shall be
Dismissed. It is further Ordered, that, within thirty days of this decision, Jim Walter shall pay a
civil penalty of $250.00 for the violation of Section 75.400 found herein.

AA~&L-

Administrative Law Judge

Distribution:
Guy W. Hensley, Esq., Jim Walters Resources, Inc., P.O. Box 133; Brookland, AL 35444
Thomas Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219
/Ip

30 FMSHRC 841

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

August 7, 2008
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 2007-62-M
A.C. No. 14-01597-100791

v.
Plant 4
NELSON QUARRIES, INC.,
Respondent

DECISION BASED ON SUPPLEMENTED RECORD

Before: Judge Manning
This case is before me upon a petition for assessment of civil penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Act").
The Secretary filed a motion for summary decision in this case. The motion stated that there
were no issues to be resolved at a hearing and the Secretary was entitled to summary decision as
a matter oflaw. Nelson Quarries opposed the motion on the grounds that there are several
material facts in dispute.
By order dated April 9, 2008, I denied the Secretary's motion, in part. Although I held
that the Secretary was entitled to summary decision on the merits of the violation, I held that
there were issues of fact remaining with respect to the gravity and negligence criteria. The
parties have been unable to settle the case but they asked that I issue my final decision on the
merits based on the existing record. The record includes affidavits, responses to discovery,
photographs, and other documents. I agreed to rule on all remaining issues in a written decision.
As a consequence, Respondent's previously filed motion for settlement of case, dated June 16,
2008, is DENIED.
On May 31, 2006, MSHA Inspector Richard Tedesco issued Citation No. 6332035
alleging a violation of section 56.9200(d). The citation provides, in part, as follows:

Miners were being transported on the back of the 988F front-end
loader c/n 016 while the loader was in motion. There were no
provisions made on this loader to transport anyone except the
loader operator.
The inspector issued an imminent danger order in conjunction with this citation. The safety
30 FMSHRC 842

standard provides that "persons shall not be transported ... outside cabs, equipment operators'
stations, and beds of mobile equipment,· except when necessary for maintenance, testing or
training purposes, and provisions are made for secure travel." The inspector determined that a
fatal injury was highly likely, that the violation was significant and substantial ("S&S"), and that
the company's negligence was moderate. The Secretary proposed a penalty of$1,100.00 under
her special assessment regulation at 30 C.F.R. §100.5.
While conducting an inspection at Plant 4, Inspector Tedesco observed a miner driving a
loader with two employees riding on the back of the loader. The employees were not in the cab
and were sitting behind the cab. There were no seats or seatbelts provided for these employees.
Inspector Tedesco issued a verbal imminent danger order and instructed the miners to get off the
loader. The miners riding on the back of the loader were not engaged in testing or training
activities and, in any event, there were no suitable provisions made for secure travel. Inspector
Tedesco determined that the violation was S&S and that the company's negligence was moderate
because it had instructed miners not to ride on the back of equipment.
As I stated in my summary decision order, I find that the Secretary established a violation
of 56.9200(d). Nelson Quarries conceded as much given that the Mine Act has been construed as
a strict liability statute. The remaining issues are the gravity, including the S&S designation, and
negligence criteria.

I. GRAVITY OF THE VIOLATION
Nelson Quarries contends that the violation was neither serious nor S&S because the
loader was traveling over smooth terrain, there was little change in elevation on the route
traveled by the loader, the loader was traveling at a slow speed for a short distance, and the
miners were behind the railing on the back of the loader. The Secretary argues that ''the danger
of riding on equipment, outside the loader's cab, poses a significant and substantial hazard
regardless of the nature of the terrain upon which the vehicle travels" or other site-specific
factors. (S. Reply to Resp. Opposition to Sum. Dec.). I denied the motion for summary decision
because I determined that the environmental factors cited by Nelson Quarries are directly related
to the gravity criterion. I rejected the Secretary' argument that the violation should automatically
be classified as S&S.
In his affidavit, Inspector Tedesco testified that the two employees were about nine feet
above the ground and about three and a half feet above the top of the loader's rear tires.
Affidavit if 4. He stated that the men were "sitting behind [the handrails on the loader] and were
therefore not afforded any protection by the rails." Id. The men were sitting on the engine cover
for the loader. There were no seatbelts or other restraining devices provided. The inspector also
testified that ''the terrain they were traveling at the time I observed them was bumpy and rutted
with elevation changes of approximately 15 feet." Id. at if 6. He said that he designated the
citation as S&S because "a fall from such elevation under such conditions was reasonably likely
to occur and could lead to a serious and/or fatal injuries." Id.

30 FMSHRC 843

Nelson Quarries submitted the affidavit of Eugene Andres, who accompanied Tedesco
during the inspection. He testified that Nelson Quarries was in the process of assembling the
plant at the time of the inspection. Affidavit~ 4. He further testified that the miners were
"riding behind the cab of the loader, seated on the engine hood, with their feet on the loader
platform." Id. at ii 10. The miners were "hanging onto the platform railing and facing forward."
Id. at 111. The loader was "moving very slowly, in low gear, coming out of the water." Id. at 1
12. The pit had about two feet of water in it at the time of the violation and the loader was
returning from a water pump installed to remove the water. Id. at 1 9. The miners had been
checking fluid levels and performing maintenance on the pump. Id. at, 16. They were returning
at the time the citation was issued. Miners are required to ride in trucks when moving about the
plant but ''the water was too deep for the pickup to travel to the pump." Id. at 115. The miners
told Andres that they considered riding in the loader bucket but "because of safety concerns,
thought it better to climb up on the loader platform where it would be safe." Id. at ii 17. The
miners rode "a distance of 200 feet to the pump and 200 feet away from the pump over fairly
smooth terrain and at a low speed." Id. at 1 18, "They did not cross ground that was bumpy and
rutted and involved a 15 foot change in elevation as stated in the Inspector's affidavit." Id.
The evidence conflicts in several respects. The parties disagree as to the condition of the
terrain. It is not entirely clear where Inspector Tedesco was looking when he determined that the
terrain was bumpy and rutted. Nelson Quarries submitted several photographs of the area where
the citation was issued. (Attachment to Nelson's Response to Motion for Summary Decision). It
is not entirely clear when the photos were taken, butit is clear that the water had been mostly
drained. The photos reveal that the entire area is mostly smooth with only a slight grade. I credit
the testimony of Mr. Andres on this issue. Based on his affidavit testimony and the photographs,
I find that the terrain was mostly smooth. I also find that the loader was traveling at a low rate of
speed and there was only a slight elevation change. The two miners were sitting on the engine
hood behind the cab and their feet were on the platform. They were holding onto the platform
railing. Photographs provided by Nelson Quarries show the loader hood, platform, and the
railings. Id. .·
A violation is classified as S&S "if based upon the 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." National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). fu
Mathies Coal Co., 6 FMSHRC _1, 3-4(January1984), the Commission set out a four-part test for
analyzing S&S issues. Evaluation of the criteria is made assuming "continued normal mining
operations." U.S. Steel Mining Co., 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. Texasgulf, Inc., 10 FMSHRC 498 (April 1988). The Secretary must establish: (1) the
underlying violation of the safety standard; (2) a discrete safety hazard, 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. The Secretary is not required to show that it is more probable than not
that an injury will result from the violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865 {June

30 FMSHRC 844

1996).
I find that although the Secretary established the first, second, and fourth element of the
Mathies S&S test, the third element was not established. The preponderance of the credible
evidence convinces me that it was not reasonably likely that the hazard contributed to by the
violation would result in an injury. Simply put, it was highly unlikely that any of the miners
riding outside the cab of the loader would fall off the loader or would otherwise injure
themselves while they were on the loader. The terrain was relatively smooth, the loader was
traveling at a low rate of speed, and the distance traveled was less than a tenth of a mile.
Consequently, the inspector's S&S detennination is vacated. In addition, the inspector's gravity
determinations are modified as follows: the likelihood of an injury is modified to ''unlikely," the
type of injury that reasonably could be expected if there were an accident is reduced to "lost
workdays or restricted duty." Given the environmental factors discussed above, it is unlikely that
anyone would suffer a fatal injury as a result of this violation.

TI. NEGLIGENCE OF THE MINE OPERATOR
Nelson Quarries argues that its negligence should be reduced to low because the two
employees violated a written company policy. It claims that it did everything it could do to let its
employees know that they "were not permitted to engage in this cited behavior." (Nelson
Response to Sec'y Motion for Summary Decision at 2). The Secretary contends that the
inspector's designation of moderate negligence was appropriate because Nelson Quarries knew
or should have known of the violation but there were some mitigating circumstances.
I affirm the inspector's moderate negligence determination. The company's written
policy states that "[u ]nder no circumstances shall any person ride in a loader bucket or on the
loader while it is moving." (Attachment to Nelson's Motion for Settlement of Case).
Nevertheless, the operator apparently did not have any means for the three employees to reach
the pump for servicing except to have two of them ride outside the cab of the loader. These two
employees believed that,. under these circumstances, the safest way for them to reach the pump
was to ride on the outside of the loader. The employees had little choice but to violate the policy.
This constitutes moderate negligence on the part of Nelson Quarries.

Ill. APPROPRIA'JE CIVIL PENALTIES AND ORDER
Section 11 O(i) of the Mine Act sets out six criteria to be considered in determining
appropriate civil penalties. Plant 4 had a history of about 30 violations in the two years prior to
May 31, 2006~ based on my two decisions following the June 2007 hearing. Most of these
previous violations were non-S&S. Nelson Quarries is a rather small operator and its quarries
are small. The violation was abated in good faith. Nelson Quarries did not establish that the
penalties assessed will have an adverse effect on its ability to continue in business. My gravity
and negligence findings are set forth above. Based on the penalty criteria, I find that the penalty
of$150.00 is appropriate for this citation.

30 FMSHRC 845

Accordingly, Citation No. 6332035 is MODIFIED as set forth above and Nelson
Quarries, Inc., is ORDERED TO PAY the Secretary of Labor the sum of$150.00 within 40
days of the date of this decision. Payment should be sent to: U.S. Department of Labor, Mine
Safety and Health Administration, P.O. Box 790390, St. Louis, MO 63179-0390.

Richard W. Manning
Administrative Law Judge

Distribution:
Lydia Tzagoloff, Esq, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202 (Certified Mail)
Paul M. Nelson, P.O. Box 334, Jasper, MO 64755 (Certified Mail)
Kenneth L. Nelson, President, Nelson Quarries, Inc., P.O. Box 100, Gas, KS 66742-0100 (First
Class Mail) ·

RWM

30 FMSHRC 846

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

August 20, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2007-293
A.C. No. 46-08798-111222

v.
I 0 COAL COMPANY,
Respondent

Europa Mine

DECISION
Appearances: Benjamin Chachkin, Esq., U.S. Department of Labor, Arlington, Virginia, on
behalf of the Petitioner
David J. Hardy, Esq., Spilman, Thomas & Battle, PLLC, Charleston, West
Virginia, on behalf of the Respondent
Before:

Judge Barbour

In this civil penalty proceeding brought pursuant to sections 105 and 110 of the Federal
Mine Safety and Health Act of 1977 ("Mine Act or Act") (30 U.S.C. §§ 815, 820), the Secretary
of Labor ("Secretary''), on behalf of her Mine Safety and Health Administration ("MSHA"),
petitioned for the assessment of civil penalties for two alleged violations of 30 C.F.R. §
75.220(a), a mandatory safety standard for underground coal mines requiring a mine operator to
develop and follow a roof control plan suitable for its mine and the conditions therein. The
alleged violations were set forth in a citation and an order issued pursuant to section 104(d)(l) of
the Act. 30 U.S.C. § 814(d)(l).
In a letter received prior to trial, counsels advised me they had settled their differences
regarding all allegations relating to the citation and the only issues remaining to be resolved were
those relating to the order. I approved the settlement at the hearing. Tr. 19-20. The settlement's
terms are reiterated at the end of this decision.
In issuing the order for the alleged violation of section 75.220(a)(l), the inspector found
the violation was a significant and substantial contribution to a mine safety hazard (S&S) and
was the result of IO Coal Company's (IO' s) unwarrantable failure to comply with its roof control
plan. Therefore, in addition to the fact of violation, the inspector's S&S and unwarrantable
findings were at issue, as was the appropriateness of the Secretary's proposed civil penalty of

30FMSHRC 847

$6,900 for the alleged violation. The hearing was conducted in Charleston, West Virginia.
Testimonial and documentary evidence were offered by both sides. Subsequently, counsels
submitted helpful briefs.
STIPULATIONS
The parties stipulated as follows:

1. The Administrative Law Judge and the Federal Mine
Safety and Health Review Commission have jurisdiction
... [over] these ... proceedings pursuant to Section 105
[(30 U.S.C. § 815)] of the ... [Act].

2. IO ... is the operator of the Europa Mine.
3. [O]perations of the Europa Mine are subject to the jurisdiction
of the Act.
4. [T]he maximum penalty that [can] be assessed for [the
violation] will not affect the ability oflO ... to remain
in business.
5. MSHA inspector Jack Hatfield and MSHA field [office]
supervisor Terry Price ... were acting in [their] official
capacities and as authorized representatives of the
Secretary ... when the ... [order] involved in this
proceeding [was] issued.
6. [A t]rue cop[y] of ... the ... [order] at
issue in this proceeding ... [was] served on IO
... as required by the Act.
7. Government Exhibit [1] is an authentic copy of
[O]rder [No.] 7252442 ... and may be admitted
into evidence.for the purpose of establishing its issuance
and not for the purpose of establishing the [authenticity]
of any statements asserted therein.

*

*

*

13. Government Exhibit [No. 6] is an authentic copy
of page six of the roof control plan in effect at the
... [m]ine at the time of the issuance of[Order No.]

30 FMSHRC 848

7252422.
14. Government Exhibit [No. 8] is an
authentic copy of page six of the [roof] control ...
plan in effect at the ... [m]ine on August [16],
2007.
15. Government Exhibit [7] is an authentic copy
of Respondent's Answers to Interrogatories pages
two through six.
16. [T]he [violation] involved in this matter [was]
abated in good faith.
17. Government Exhibit 10, the violat[ion] data sheet[,]
may be admitted into evidence.
18. Government Exhibit 11, the narrative findings for
special assessment[,] sets forth 6 criteria ... [found in]
30 C.F.R. § 100.3(a) and other information available
to the [O]ffice of [A]ssessments [in calculating
the proposed penalty of] $6,900 [for the violation
charged in] [O]rder [N]o. 7252422.
19. Government Exhibit 12; the assessed violation history
report[,] ... accurately sets forth the history of violations
at the ... [m]ine for the time period specified and may
be admitted into evidence and used in determining
civil penalty assessments for the alleged violations in
this case.
20. Government Exhibit [9] is ... an accurate copy of the
... diagram marked at ..• [the] deposition [of mine
foreman Fred Thomas] .
21. IO .... may be considered a large mine operator
for purposes of 30 U.S.C. [§] 820(i) and ... [the mine]
can be considered a large mine.
Tr. 12-16. 1

1

After the stipulations were read into the record, counsel for IO stated the company was
withdrawing from stipulations 8 through 12, which concerned citations other than the order at
30 FMSHRC 849

THE INSPECTOR AND THE ORDER
MSHA Inspector Hatfield began working in underground coal mines upon graduating
from high school in 1970. He was employed by several different companies and held various
positions, including section boss, mine foreman, safety engineer, and safety director. fu October
2004, he started working for MSHA as a coal mine inspector. Tr. 31-33. In April 2006, he was
assigned to inspect IO' s Europa Mine. Tr. 98. On the morning of June 12, 2006, Hatfield
conducted an inspection of the mine in which he found one ofits working sections (the 005
MMU section) contained adverse roof conditions in the form of "multiple inadequately supported
kettle bottoms and unsupported surface cracks." Gov't Exh. 1. In Hatfield's opinion, the
conditions violated Safety Precaution No. 7 of the mine's roof control plan, which stated:
When adverse roof conditions are encountered[,]
such as horsebacks, slicken-sided slip formations, clay
veins, kettle bottoms, surface cracks, mud streaks or
similar types of conditions in the mine roof, supplemental
roof supports shall be installed in addition to primary
roof support as appropriate in the affected area. 2
Gov't Exh. 6.
As a result, Hatfield issued Order No. 7252422, charging the company with a violation of its
approved and adopted roof control plan.

PRIOR CITATIONS, SURFACE CRACKS, AND KETTLE BOTTOMS
Before testifying about the order, Hatfield was asked about prior citations alleging
violations of section 75.220(a)(l). He stated the first such alleged violation was set forth in
Citation No. 7252337, issued on May 1, 2006. Gov't Exh. 2. The citation was issued for
specified "[a]dverse roof conditions" on the 004 MMU section of the mine and for the lack of
"effective supplemental support." Gov't Exh. 2. According to Hatfield, the "adverse roof
conditions" included "surface cracks, kettle bottoms, [and] mud streaks" at several locations. Tr.
34; Gov't Exh. 2.
Hatfield was familiar with surface cracks. He had worked in mines whose roofs
exhibited them. Tr. 97. Hatfield described the cracks as those that ''make their way to the
surface." Tr. 35. He stated they are revealed when coal is extracted. Tr. 129. Usually, they are

issue. Tr.17-18.
2

In addition to requiring supplemental roof supports, the plan contained a list of the

permissible types of supplemental supports. Resp. Exh. 10.

30 FMSHRC 850

discolored (they can be yellow or orange). Sometimes they have a pronounced gap. Frequently
they exhibit mud streaks and/or exude water. A surface crack can be a single crack extending
from the coal seam through the overburden to the surface. Tr. 34-35; see also Tr. 207, 236-237
(testimony of mine foreman Frederick ("Fred") Thomas). Or, a surface crack can be a series of
cracks that intersect with one another and lead from the mine roof to the surface. Tr. 35. ("[I]t
may come up and adjoin another crack, intersect with another crack and then go to the surface."
Id.) Hatfield offered an explanation of how a person on the surface can determine if a mine
below has surface cracks: "If you go out on a ... cold morning and ... you look across the field
... you'll see warm air coming out [of the crack]."3 Tr. 35-36.
One hazard associated with surface cracks that particularly concerned Hatfield was
''boxing out." Tr. 38. The surface cracks "box out" when they interconnect above the roof and
create a "chunk ofrock" that is likely to fall if it was not supported~ Tr. 39. In Hatfield's
opinion, roof bolts do not necessarily offer adequate support for a "boxed out" area because the
surface cracks can connect above the roof bolts. Unless a strap is installed on the sUrface of the
roof to hold the boxed out area in place, the area can fall despite the presence of the roof bolts.
Id.
Hatfield also was familiar with "kettle bottoms." He stated, "I've seem them since I
started at the mine. [G]enerally, a kettle bottom is a piece of petrified heavy rock strata that is
circular ... it maybe a little oval or oblong and ... have ... coal encrusted around ... [its]
circumference.'"' Tr. 37-38. Hatfield explained kettle bottoms can be very heavy. In addition,
the visible portion of a kettle bottom is not necessarily an indication of the kettle bottom's size.
For example, a kettle bottom with an exposed diameter of two feet can have an unexposed
diameter of four feet. Tr. 38. The kettle bottom can "funnel out" above the roof. Id.

Terry Price~ an MSHA field office coal mine inspection supervisor and Hatfield;s boss,
essentially shared Hatfield's understanding of surface cracks. He stated:
3

A surface crack usually is in the roof down
through the ribs . . . . Sometimes a surface
crack will ha:ve partieles of mud, sometimes it.
will have particles of rock; sometimes it will
just be a crack without particles. The main
characteristic has been the presence of water.
Generally [the water produces] a stain ....
Tr. 163-164.
4

Price described kettle bottoms more succinctly. They are "basically ... petrified tree
trunk[s] surrounded by a thin layer of coal." Tr. 164. The size of a kettle bottom depends on
"how big the tree trunk was." Id.

30 FMSHRC 851

On May 17, 2006, Hatfield issued another citation at the mine- Citation No. 7252378.
Hatfield gave the citation to mine foreman Thomas. Tr. 44. The citation concerned roof
conditions on the 006 MMU section. Gov't Exh. 3; Tr. 43. According to Hatfield, there were
"surface cracks running parallel and perpendicular with ... [an] entry'' and unsupported kettle
bottoms. Id. After he issued the citation, Hatfield stated he reviewed the roof control plan,
particularly Safety Precaution No. 7, with Thomas. Tr. 45. The company abated the condition
by installing supplemental roof support in the form ofT-3 or T-5 straps. 5 Id.; Tr. 148.
On June 5, 2006, Hatfield issued another citation to Thomas, Citation No. 7252411.
Gov't Exh. 4; Tr. 45-46. The citation concerned roof conditions, also located on the 006 MMU.
Tr. 46. As Hatfield recalled, he found "an unsupported kettle bottom in the ... roof about 60
feet outby the last open crosscut, number five entry." Id. Hatfield measured the kettle bottom. It
was circular and about two feet in diameter. The kettle bottom had "coal edging," which
Hatfield believed made it more "likely to fall." Id. Hatfield feared the falling kettle bottom
would hit and injure or kill a miner. Tr. 46-47. After issuing the citation, Hatfield testified he
discussed kettle bottoms with company officials in order to "make them understand what I
classed as a kettle bottom." Tr. 47. He told them they should pay more attention to the problem.
Id.
On June 8, 2006, Hatfield issued Citation No. 7252417 to Thomas. Gov't Exh. 5; Tr.47.
Once more the citation concerned kettle bottoms on the 006 MMU section. Tr. 46. Hatfield
explained he issued the citation for an unsupported kettle bottom located in the roof of the last
open crosscut between the number one and number two entries. Tr. 47-48. The kettle bottom
was approximately two feet in diameter and had a "coal and slicken-sided edging." Tr. 48; see
Gov't Exh. 5. Because the kettle bottom lacked supplemental support, Hatfield believed it
presented a hazard to miners who traveled on foot through the area on all shifts. Tr. 48. He
noted the 006 MMU section had been cited for the same condition previously on two occasions.
Id. As with the previous citations, Hatfield testified he showed management officials a copy of
the roof control plan, including Safety Precaution No. 7. 6 Tr. 48.

5

Several different types of metal straps had been used at the mine as supplemental roof
support. The least substantial were "bacon strips," thin, short metal straps anchored at the ends
with roof bolts and roof bolt plates. The bacon strips were approximately five feet long and 22
inches wide. Tr. 124-125. They often were used to support small kettle bottoms or small rocks
that could not be pulled or scaled down. Tr. 40. The company stopped using the strips a year or
two before Hatfield issued the contested order. Tr. 370. They were replaced by" T-3" and ''T-5"
metal straps. The T-3 and T-5 straps were thicker and longer than the bacon strips. They could
hold more weight and cover greater areas. Tr. 40.
6

However, Thomas asserted he and Hatfield did not discuss the plan and the precaution
(Tr. 251), and Thomas strongly disagreed with Hatfield's assessment as to the existence of the
supposed kettle bottoms. He stated, "I never knew what ... Hatfield was going to do from one
time to the next He'd call anything a kettle bottom. In my professional opinion ... Hatflield did
30 FMSHRC 852

THE ORDER
The stage was now set for the issuance of the contested order. On June 11, 2006,
Timothy (''Tim") Beckner, the mine superintendent, was at the mine. He traveled to the 005
MMU section. Beckner was "impressed" by what he saw. Tr. 365. He described the section as
"good and clean." Id, The roof appeared well supported. There were, he testified, T-5 metal
straps "in every entry and every crosscut." Tr. 368.
The next day Hatfield had a very different impression of the section. He arrived around
mid-morning and traveled to the 005.MMU section. Thomas was with him. Section foreman
Michael ("Mike") Jefferson was also included in the group at various times. 7
Hatfield first checked the section for imminent dangers. As he did, he testified he
noticed the roof on the section contained surface cracks and other kinds of cracks, as well as
unsupported kettle bottoms. fu fact, according to Hatfield, there were more kettle bottoms on the
section than on any other areas of the mine he had inspected. Tr. 52. Asked about the number of
kettle bottoms, Hatfield stated, there were "quite a few ... more than a dozen." Id. He
described them as "pretty obvious." Id. Hatfield agreed there were "some straps" installed as
roof support, but he could not remember where they were, how many there were, and whether
they were T-3 or T-5 straps. Tr. 99, 104. As Hatfield began pointing out the cracks and kettle
bottoms, Thomas stated he became "really frustrated" with Hatfield. Tr. 200.
The men walked up the number 4 entry and then walked to the number 1 entry and across
the face, at which point Hatfield traveled back to the number 7 entry. Tr. 190. After seeing the
section's roof with what he believed were inadequately supported and unsupported surface cracks
and kettle bottoms, Hatfield concluded the company was not complying with its roof control
plan. Hatfield believed he had warned IO officials before about the need for roof control plan
compliance. Therefore, Hatfield told Thomas he was issuing a section 104(d)(l) order, closing
the section. 30 U.S.C. § 814(d)(l). Tr. 51-52. Thomas was ''very upset." Tr. 205.
Hatfield maintained, prior to issuing the order when he pointed out the conditions to
Thomas and/or to Jefferson, ''they never said anything." Tr. 114. While not specifically denying
this, Thomas asserted Jefferson tried to talk to Hatfield, and Hatfield "absolutely would not talk
to him. " 8 Tr. 204. Although they might not have said anything directly to Hatfield, Thomas was
adamant he and Jefferson disagreed with Hatfield's assessment of the area. Id.

not understand the word." Tr. 252.
7

Jefferson began working as a section foreman at the mine in 2003. Eight miners worked
under his direction. Tr. 304-305.
8

Beckner described Hatfield as "arrogant" and "overbearing." Tr. 388; He added, "[Y]ou
just can't talk to him." Id.
30 FMSHRC 853

IO'S PHOTOGRAPIDC EVIDENCE-KETTLE BOTTOMS AND SURFACE CRACKS
At the hearing, the company introduced into evidence several photographs of the section's
roof. According to Thomas, although the photographs did not depict every condition the inspector
pointed out, they represented the types of conditions Hatfield obser\i'ed. Tr. 206, 219, 222 The
photographs were taken by Michael ("Mike") McMullen, who was in charge of the engineers
working at the mine.
Thomas testified the area depicted in Respondent's Exhibit 1 (an area located in the No. 7
entry {Tr. 226, 259)) was thought by Hatfield to be an inadequately supported kettle bottom, but in
Thomas's view the area did not "look anything like a kettle bottom." Tr. 201. Jefferson agreed.
He thought the photograph showed ''just slate, [a] sloughed area." Tr. 315, see also Tr. 349.
According to Jefferson, the photograph was a good example of the type of areas Hatfield thought
were kettle bottoms, but in fact were not. Id. Tim Beckner also agreed the photograph did not
depict a kettle bottom. Rather, it showed "an indentation in the top." Tr. 380. Like Jefferson,
Beckner felt the photograph was a good illustration of the kind of formation Hatfield mistakenly
thought was a kettle bottom. Tr. 380-381.
Thomas also complained that Hatfield misidentified surface roof cracks he thought needed
supplemental support. In Thomas's view, the formations Hatfield thought required support were
not surface cracks. Rather, they were layered roof strata, where "one layer'' of rock abutted
another layer. Tr. 194. Thomas testified the photograph entered into evidence as Respondent's
Exhibit 3 was an example of Hatfield's errors. The photograph showed layered shale. Tr. 383,
418. In Thomas's opinion, Hatfield really did not know what a surface crack was. Thomas
stated, "[H]e was calling things that [weren't] surface cracks, surface cracks. He was calling two
or three different types of situations surface cracks. He would call a stress crack ... a surface
crack[9] ••.• He was referring to layered strata as surface cracks." Tr. 229-230. In fact, Thomas
testified he saw no unsupported surface cracks when he traveled the section with Hatfield. Tr.
203. Thomas was sure all of the kettle bottoms and surface cracks that were present on the
section had been supported as the plan required. Id.; see alsoTr. 207. He stated, "There [were]
metal straps all over that section." Tr. 199. He would have been comfortable sitting under the
roof anywhere on the section. Id. In his opinion of the Respondent's photographic exhibits, the
only one that showed a surface crack was Respondent's Exhibit 6, and that crack was properly
supported with T-5 straps. 10 Tr. 196; Resp. Exh. 6.
After Hatfield issued the order, Thomas asked his superiors to look at the section, and

9

Thomas maintained the photograph entered into evidence as Respondent's Exhibit 4
represented a stress crack, not a surface crack. Tr. 230.

°In fact, mining engineer Fabian Boltralik thought the crack had more support than was

1

necessary. He termed the support, "overkill." Tr. 422.
30 FMSHRC 854

Jefferson asked his miners to halt all work. As a result, no additional roof support was installed
until the section was seen by higher mine management officials.

THE CITED CONDITIONS AND THE DIAGRAM
Prior to the hearing, Thomas prepared a diagram (Gov't Exh. 9) depicting the cited areas
of the 005 MMU section. See Stip. 20. Thomas's diagram lacked four outby coal pillars. They
were added by Hatfield at the hearing. Tr. 60; Gov't Exh. 9. As depicted on the diagram, the
faces of the 005 MMU section's seven entries were toward the top of the diagram. The outby
areas of the mine were toward the bottom. Tr. 57.
Hatfield marked the diagram to indicate the locations of the cited cracks and kettle
bottoms. He indicated the presence of cracks by drawing ''wavy" lines; He indicated the presence
of kettle bottoms by drawing circles. Gov't Exh. 9. The cracks and kettle bottoms extended
outby three crosscuts from the face. Tr. 59.

In marking the diagram, Hatfield did not distinguish between surface cracks and other
kinds of cracks. Tr. 111. He was asked if the cracks he cited and placed on the diagram were
surface cracks. He replied, "I feel like ... I saw surface cracks, but as far as putting them in that
location [on the diagram], I didn't know that it was surface cracks but they are cracks -they were
cracks in the roof." Tr. 70; see also Tr. 151. A short time later he stated; although his notes did
not reflect the presence of surface cracks, "l do know that there were unsupported surface cracks."
Tr. 70; see also Tr. 72. He also testified the cracks about which he was concerned were
"intersecting ... were multiple in nature ... [and] they created an exposure of the workers to a
roof fall." Id. He explained that when a crack exists, no one can determine how far it goes up
into the roof or at what direction. It is possible for the crack to "box out" other cracks and leave a
wedge of self supporting roof material, a wedge that is likely to fall. Tr. 71-72. The inspector
stated all of the cracks he marked on Gov't Exh. 9 and all of the cracks he mentioned in his notes
were adverse roof conditions requiring supplemental support. Tr. 73.
In Hatfield's opinion, it was the section foreman who should make a judgement call as to
whether supplemental support was required. Tr. 130; see also Tr. 176. Mine superintendent
Beckner agreed. Tr. 380. Beckner stated, if the roof was cracked the section foreman should look
for several things, i.e., whether there were multiple cracks, whether a crack had a rock stuck in it,
whether a crack was gapped with water and mud running out of it, and whether there was any
material falling out of the crack. Id., Tr. 385. All of these things were indices of surface cracks.
As for the kettle bottoms, Hatfield reviewed his notes and testified he saw 15 that were
unsupported in the cited area. Tr. 69. However, his notes did not reflect all of the kettle bottoms
he observed on the section. Rather, his notes were a "running document" he kept as he traversed
the entries and crosscuts. Tr. 70. Hatfield did not record the diameters of the kettle bottoms, and
he could not include any dimensions on the diagram. Tr. 149-150.

30 FMSHRC 855

Hatfield especially noted, in the No. 3 entry two breaks outby the last open crosscut, there
was a kettle bottom and near the kettle bottom were cracks that almost touched the kettle bottom's
outside edges. He believed the cracks "loosen[ed] ... the kettle bottom and ... [roof] strata could
fall." Tr. 64.
According to Hatfield, one way to support a kettle bottom was to install a roof bolt to one
side of the formation and have the plate of the roof bolt extend over part of the kettle bottom. 11
Tr. 120-121. There were kettle bottoms on the 005 MMU supported in this way. Tr. 121. As for
mine management's contention the formations he thought were kettle bottoms were not, Hatfield
was sure he was right: "I've seen a lot of kettle bottoms and I don't know how I misidentified
them." Tr. 83. He pointed out on June 12, prior to issuance of the order, no one took issue with
his identification of the formations, and the same was true in connection with the previous
citations he issued involving kettle bottoms. Tr. 84.
Hatfield testified miners working on the section were required to travel through the cited
area. Tr. 67, 75. He believed the inadequately supported and unsupported cracks and kettle
bottoms were reasonably likely to result in falling roof and disabling injuries to the miners. Tr.
75-76; Gov't Exh. 1. He termed the conditions "very dangerous." Tr. 76. He also believed IO
was highly negligent in allowing the conditions to exist. He emphasized that prior to June 12, he
had talked to management officials about the need for supplemental support, "and it just seemed .
. . [he] wasn't getting anywhere with just writing a citation." Tr. 76.

THE CITED CONDITIONS FROM MANAGEMENT'S VIEWPOINT
Jefferson could not accompany Hatfield during all of the inspection. After Jefferson left,
Hatfield and Thomas continued across the section. When Jefferson learned Hatfield was issuing a
withdrawal order closing the section, Jefferson was surprised. Tr. 307. He gathered the crew and
sent them out of the section. Tr. 308. Jefferson then walked with Hatfield back across the
section. Jefferson had a can of paint and he ''paint[ed] places where [Hatfield] felt an extra bolt or
strap should go." Tr. 309. Jefferson maintained the places Hatfield wanted him to mark "really
didn't make sense ... because ... straps ... and bolts already [were] there." Id. In addition,
Hatfield "was pointing kettle bottoms out that [weren't] kettle bottoms." Id. Rather, they looked
to Jefferson like "different layers of ... slate." Id. While Jefferson agreed there were some kettle
bottoms in the section's roof, they had all been properly supported. Tr. 310, 311. When Hatfield
pointed out what he thought was ·an unsupported kettle bottom or unsupported crack, Hatfield
would ask Jefferson if he agreed. Jefferson testified, "I never, not one time, agreed with him on
anything he said." Tr. 319. (However, a close reading of Jefferson's testimony shows he did not
testify he orally disagreed with Hatfield.)
Jefferson described the 005 MMU section as, "[O]ne of the best conditioned sections I've
11

Superintendent Beckner agreed this was a good way to provide a kettle bottom with
support. Tr. 379.
30 FMSHRC 856

had." Tr. 320. Not only were the general roof conditions good, his crew had installed additional
straps to make the roof"extra safe" because Jefferson had "preached to them every day, the
mine's only [as] safe as they make it." Id. In fact, when Hatfield arrived at the 005 MMU
section, the crew already had installed supplemental support in the form ofT-5 straps where
support was needed in the entries and cross cuts. Tr. 311, 313. Jefferson described his crew as
"pretty upset" when they had to withdraw from the section. Tr. 325.
Jefferson was asked ifhe saw 15 unsupported kettle bottoms across the section. He
answered, "No." Tr. 311. Moreover, as was usually the case, the pre-shift report for the section
had been called out to him before the day shift started. The pre-shift examiner did not mention
any adverse roof conditions. 12 Tr. 324.

In the meantime, after Hatfield issued the order, Thomas called Tim Beckner and told him
what had happened. Tr. 371. Beckner immediately went to the mine and traveled to the section.
Hatfield was still there when Beckner arrived. Beckner asked Hatfield to walk the section with
him and to point out the conditions needing supplemental support. Hatfield refused and left the
mine. Beckner then traveled the section with Thomas. Beckner testified the formations pointed
out to him as being unsupported kettle bottoms were not. They were "indentations in the fault,
that were strapped ... or just little rolls or bumps." 13 Tr. 377. Two or three times while Beckner
and Thomas were traveling the section, Jefferson joined them. Jefferson expressed disbelief a
withdrawal order had been issued. He said, "I thought we [were) doing a good job." Tr. 394.
Boltralik: also went to the mine after being informed of the order: Boltralik was a
professional mining engineer. Tr. 403. He had been employed for approximately 29 years in
underground coal mining. Tr. 405. Mike McMullen was his supervisor. Tr. 407. One of their
jobs was to keep the mine's roof control plan current and to resolve issues regarding the plan. Tr.
410.
McMullen came to the mine, and he and Boltralik went to the 005 MMU section. Tr. 268.

By the time they reached the section, Hatfield was gone. Tr. 292. Boltralik, McMullen, and
Thomas looked at the entire area covered by the order. Tr. 410, 430. Thomas pointed out at least
a dozen areas Hatfield believed were in violation of the roof control plan. Tr. 430. Some of the
areas were marked with paint and some were not. Id. McMullen described his general reaction to
the roof on the section: "I felt ... they were doing a good job." Tr. 271. Tr. 272. "I did not see
anything to cause me any concern." Tr: 277-278.

12

The written report of the pre-shift examination could not be located and was not offered
into evidence.
13

When Beckner referred to "rolls" or "bumps," he meant ')ust a little dent or ... a little
lump ... something that is round, or just a round indentation in the top . . . a formation in the
rock strata." Tr. 377-378

30 FMSHRC 857

As Thomas showed Boltralik and McMullen roof areas Hatfield indicated were in
violation of the pl~ McMullen took photographs. Respondent's Exhibits 1 - 7 are several of the
photographs. Tr. 269. According to McMullen, he photographed areas where Thomas said
Hatfield "implied there was a crack or a kettle bottom and there wasn't." Tr. 278. Boltralik
estimated the photographs represented 20 percent of the cited area. Tr. 435.
The company's witnesses generally agreed the formations pictured in the photographs did
not require supplemental support and did not violate the plan. For example, McMullen termed the
crack pictured in Respondent's Exhibit 4 as a "stress or tension crack," one commonly seen in
mines and one not requiring supplemental support. Tr. 280; see also Tr. 284-285. He was not
concerned about the crack because it had not "gapped." Tr. 285. Beckner stated the photograph
showed "possibly a small hairline crack," nothing that would require supplemental support. Tr.
399. For his part, Jefferson did not believe Respondent's Exhibit 4 actually pictured a crack.
Rather, the photograph showed "flaking." Tr. 333, 334. The area certainly did not need
supplemental support. Tr. 354-355.
According to McMullen, another surface crack was shown in Respondent's Exhibit 6. He
termed what was pictured as "a crack with a gap in it." Tr. 281. However, be was quick to note it
had been properly supported with either a T-3 or a T-5 strap as required. Tr. 281. In fact,
McMullen acknowledged there were "a lot"of surface cracks at the mine (Tr. 287-288), but none
lacked requisite support. Tr. 281.
With regard to Respondent's Exhibit 3, McMullen stated he did not see any surface cracks.
He thought the picture probably depicted "layers [or roof rock] that just broke up and there's no
crack ... not even a hairline crack." Tr. 281. Jefferson also did not see any unsupported cracks.
Tr. 318.
Finally, McMullen did not think Respondent's Exhibit 1showed a kettle bottom. Instead,
it appeared to ·be a photograph of a place where a kettle bottom had been "mined out." Tr. 282.

HATFIELD'S JUNE 13 VISIT TO THE MINE
Hatfield returned to the mine around mid-morning on June 13. He was accompanied by
Terry Price, his supervisor. Id., Tr. 166. After they arrived, Doug Williams, the company's
operations manager; Tim Beckner and Fred Thomas advised Price they disagreed with the order.
They believed the 005 section should not have been shut down. Tr. 152-153. Price listened and
then traveled underground to the section with Hatfield. Hatfield testified the section still
contained unsupported cracks and kettle bottoms. Price described the roof on the section as
containing "large cracks." Tr. 167.
Hatfield maintained he saw one particularly noticeable unsupported kettle bottom, and he
asked Williams, who was traveling with him, if he would look at it. Williams did, and he then
ordered the roof bolting machine operator to install a strap across it. Tr. 79. After that was done,

30 FMSHRC 858

Price decided a part of the section could be "released" from the order and production could
reswne. The ''release" applied to entries four through seven. The work of providing additional
supplemental support continued in entries one through three. Tr. 79-80, 167-168. Later that
afternoon, the order was terminated with regard to the entire section. Tr. 80.

REVISIONS OF THE PLAN
Following the termination of the order, the roof control plan was twice revised. The first
revision, on June 6, 2007, added the following sentence to Safety Precaution No. 7: "When two
or more cracks are encountered, the cracks will be strapped." Resp. Exh. 9; Tr. 275-276.
McMullen believed the sentence was added because of a roof fall at the mine. Tr. 276; see also
Tr. 172. The second revision, on August 16, 2007, added the following sentence to Safety
Precaution No. 7: "When two or more cracks run with the entry, crosscut or through an
intersection, the cracks will be supported with roof channel (equivalent 3" x 8" wood collars)
utilizing roof channel plates during the installation of primary roof support." Resp. Exh. 8; Tr.
276-277. McMullen believed the phrase "utilizing roof channel plates" was added to officially
require a practice (the use of roof channel plates) that IO already was routinely doing. Tr. 277.

RESOLUTION OF THE ISSUES
THE ALLEGED VIOLATION
The primary issue is whether the Secretary can prove IO violated section 75.220(a)(l) as
alleged in the order. Echoing the standard, the Secretary notes, under section 75.220(a)(l) the
operator is required: (1) to develop and follow an approved roof control plan; and (2) to take
additional measures to protect persons if unusual hazards are encountered. The Secretary also
notes the Commission's holding that the "adequacy of particular roof support ... must be
measured against the test of whether the support or control is what a reasonably prudent person,
familiar with the milling industry and protective purpose of the standard, would have provided in
order to met the protection of the standards." Sec. Br~ 10 (quoting Cannon Coal Co., 9 FMSHRC
667, 668 (April 1987).
The Secretary asserts "multiple adverse roof conditions [on the applicable portions of the
005 MMU section] were either inadequately supported or completely unsupported." Sec. Br. 10.
She points to Hatfield's testimony that he observed the adverse roof conditions and that they
included surface cracks and kettle bottoms. Sec. Br. 5 (citing Tr. 51). She also references
Hatfield's testimony about ten areas containing either single unsupported cracks or multiple
intersecting or parallel cracks that were not supported and his observation of 15 unsupported or
inadequately supported kettle bottoms. Sec. Br. 6-7. She notes Hatfield;, after reviewing his
notes, was able to locate on the diagram (Gov't Exh. 9) the ten areas containing cracks and "each"
kettle bottom. Id.

In the Secretary's opinion, Hatfield was the "only witness who presented competent and
30 FMSHRC 859

credible testimony as to the hazardous conditions present at the time of his inspection." Sec. Br.
11. She notes, neither section foreman Jefferson nor mine foreman Thomas was present during all
of Hatfield's inspection, and she asserts other company witnesses who testified- Beckner, .
Boltralick, and McMullen - did not arrive on the section until after substantial roof support was
installed. Id. (citing Tr. 293). Therefore, according to the Secretary, ''the Respondent['s]
witnesses could not testify to personal knowledge of all the hazardous conditions identified by ...
Hatfield." Id.
IO responds Hatfield misidentified the cited roof conditions and the Secretary failed to
carry her burden of proof. IO notes the description of the alleged violation set forth in the order is
restricted to "multiple inadequately supported and unsupported surface cracks and kettle
bottoms." Resp. Br. 9 (citing Gov't Exh. 1). Therefore, according to IO, the only evidence to be
considered is that related to surface cracks and kettle bottoms. Id. 10-11. IO argues the Secretary
failed to prove there were "multiple inadequately supported ... surface cracks" as alleged in the
order. Resp. Br. 11 (citing Gov't Exh. 1). The company notes examples of cracks Hatfield
contended were inadequately supported, and it asserts the testimony and evidence actually
revealed they were properly supported. Rep. Br. 12-13 (citing Resp. Exh. 5, 6 and 7 and Tr. 176,
180, 195, 259-262 and 278, 309). The company also argues the inspector's judgement was faulty
and his testimony was not credible. Resp. Br. 13. IO points out that nowhere in the inspector's
notes was a crack described as a "surface crack." Id. 17. Moreover, all ofIO's witnesses
testified they saw no inadequately supported or unsupported surface cracks. Id. 19-22.
The company maintains, although the order specifically mentions only kettle bottoms and
surface cracks, even if it is read to include instances of improperly supported non-surface cracks,
the order should be vacated because the roof control plan does not require such cracks to be
supported. The plan in effect when the order was cited referred only to "surface cracks" as
requiring supplemental support. IO recognizes the plan required supplemental support for
"adverse roof conditions ... such as ... surface cracks ... or similar types of conditions in the
mine roof," but argues ''non surface cracks are not another type ofcondition, but another type of
crack." Resp. Br. 23 (emphasis in original). Moreover, the subsequent revisions of the plan to
require strapping"[w ]hen two or more cracks are encountered" and when two or more cracks
"[run] with the entry, crosscut or through an intersection" are significant in that they refer to
cracks, not to surface cracks. "[T]here would have been no need to modify the ... [p]Ian to
include conditions already covered." Resp. Br. 24. In any event, IO asserts, if the plan and
citation include "non-surface cracks," the Secretary failed to meet her burden of showing the
existence of non-surface cracks for which supplemental support was required. The company
notes Hatfield agreed not all non-surface cracks require support (Resp. Br. 25 (citing Tr. 113)),
and as for the non-surface cracks he believed required supplemental support, the evidence shows
he was wrong. Resp. Br. 26-27.
As for the order's allegation the 005 MMU section contained "multiple inadequately
supported and unsupported ... kettle bottoms," the only evidence offered, aside from the order
itself, was Hatfield's testimony based on his notes, that he found the kettle bottoms at locations he

30 FMSHRC 860

marked on the diagram of the section. IO contends the accuracy of Hatfield's identification of
kettle bottoms is "highly questionable" and flawed. See Resp. Br. 27-30.

RESOLUTION OF THE ISSUE
A mine-specific roof control plan and its amendments establish requirements at the mine
involved that are equivalent to mandatory safety standards. Once the operator has adopted a plan
and the agency has approved it, the plan and its subsequent modifications must be followed by the
operator. If the operator fails to comply, it maybe cited for a violation of section 75.220(a)(l).
When the citation is contested, either within 30 days of its issuance and/or subsequently when a
penalty is proposed for the alleged violation of the plan, the burden of proof is on the Secretary to
establish the violation by a preponderance of the evidence.· In re: Contests ofRespirable Dust
Sample Alteration Citations, 17FMSHRC 1819, 1838(November1995, aff'd., Secretary of
Labor v. Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998); ASARCO Mining Co., 15
FMSHRC 1330, 1307 (July 1993); Garden Creek Pocahontas Co., 11FMSHRC2148, 2152
(November 1989; Jim Walter Resources Inc., 9 FMSHRC 903, 907(May1987). The
Commission has articulated the Secretary satisfies her preponderance of the evidence burden by
demonstrating "that it [is] more likely than not" the cited violation occurred. Enlow Fork Mining
Co., 19 FMSHRC 5, 13(January1997).

THE PLAN'S REQUIREMENTS
As previously noted, Precaution 7 stated:
When adverse roof conditions are encountered such
as horsebacks, slicken-sided slip formations, clay
veins, kettle bottoms, surface cracks, mud streaks or
similar types of conditions in the mine roof, supplemental roof supports shall be installed in addition
to primary roof support as appropriate in the affected
area.
Gov't Exh. 6.
The wording makes clear Precaution 7 was directed at eliminating the hazard of roof fall from
"adverse roof conditions." The wording also makes clear the requirement to install supplemental
roof supports was not intended to be triggered solely by the enumerated conditions ("horsebacks,
slicken-sided formations, clay veins, kettle bottoms, surface cracks," etc.). The words "such as"
indicate the enumerated conditions were descriptive of the types of conditions encompassed by
the provision. The enumerated conditions were not a complete catalogue of conditions requiring
supplemental support. Thus, if a non-listed condition was "adverse," in that it made the roof more
likely to a fall (the common characteristic of the listed conditions), it was governed by the
provision and had to be adequately supported. In sum, under Precaution 7, conditions whose

30 FMSHRC 861

presence made the roof more likely to fall than if they were not present, required supplemental
roof support. However, alleged violations of the precaution must specify the violative conditions
charged.

THE ORDER
In Order No. 7252422 Hatfield stated the way in which IO allegedly failed to follow the
provision.
The 005 MMU has multiple inadequately supported
and unsupported surface cracks and kettle bottoms.
These conditions are in numerous locations across
the entries and crosscuts from the Section Feeder
and Power Center inby on the active 005 MMU.
Some of the areas on the 05 MMU have intersecting
surface cracks with no or inadequate support.
Gov't Exh. 1.
The order is specific. Its simple and direct language states the alleged violation is limited to
"unsupported surface cracks and kettle bottoms," nothing more and nothing less. Hatfield
specified no other allegedly adverse roof conditions in describing the violation and, therefore, the
question is whether the Secretary proved by a preponderance of the evidence that on June 12,
2006, on the 005 MMU section, there existed "multiple inadequately supported and unsupported
surface cracks and kettle bottoms" in "numerous locations across the entries and crosscuts from
the Section Feeder and Power Center inby." Gov't Exh. 1.

THE SURFACE CRACKS
Hatfield described "surface cracks" as cracks that "make their way to the surface." Tr. 35.
He explained surface cracks in the coal roof can be identified by one or a combination of the
following visual indicators: discoloration caused by mud or minerals seeping from the
overburden, mud in the cracks, a gapping of the cracks, and/or water issuing from the cracks. Tr.
34-35. Although a surface crack may be a single crack, it also may be a series of different
interconnecting cracks starting at the roof and ending on the surface. Tr. 35-36. Hatfield's
description did not conflict with the way surface cracks were described by !O's witnesses, and I
conclude Hatfield knew what surface cracks were. However, it is not enough to know an adverse
condition. The Secretary must show Hatfield sufficiently identified the "multiple unsupported and
inadequately supported surface cracks" cited in the order, and it is apparent to me there are major
problems with the Secretary's case in this regard. Gov't Exh. 1
The Secretary rather inexplicably offered no photographic evidence of the cited conditions.
Further, Hatfield did not identify in the order the specific locations of the conditions; nor did he

30 FMSHRC 862

describe them in any detail. 14 Rather, the order speaks generally of ''multiple inadequately
supported and unsupported surface cracks" at "numerous locations" and of"[s]ome ... areas" that
have inadequately supported surface cracks. Gov't Exh. 1. The order's lack of detail regarding
the precise location and description of the allegedly violative conditions does little to help the
Secretary meet her burden of proof.
The Secretary totally relied on Hatfield's markings placed on Thomas's diagram of the
pertinent part of the 005 MMU section -Hatfield's ''wavy'' lines. 15 After Hatfield marked the
diagram, I asked, "[A]re these surface cracks that you're referring to?" Hatfield's reply was
equivocal. ''There's surface cracks and I feel like - the best of my remembrance; I saw the surface
cracks, but as far as putting them in that location, I didn't know that it was surface cracks but they
are cracks-they were cracks in the roof." Id. Hatfield did not know which of the lines he placed
on the diagram represented surface cracks, as the following exchange between Hatfield and the
Secretary's counsel shows:
Counsel:

[Y]ou can't say that all of these cracks you have ...
in your notes were surface cracks, according to
your definition of surface cracks ?

Hatfield: No, not in these notes, but I do know that there were
unsupported surface cracks.
Counsel: So does that mean that more than one, i.e. some of
these cracks were unsupported surface cracks?
Hatfield: Yes.

14

This is in sharp contrast to the practice of the Secretary's inspectors when they cite
violations of accumulations of combustible material. In those instances, inspectors almost
always indicate the specific location of the cited accumulations, their color, dimensions and
consistency.
15

In the No. 7 entry, Hatfield identified an ''unsupported crack." Tr. 61. In the No. 6
entry, he identified "one crack." Id. Between the No. 6 and No. 5 entries in the last open cross
cut, he identified another ''unsupported crack." Tr. 62. He then identified unsupported cracks
"[o]utby the last open crosscut, five to six" (Tr. 63) and two cracks in the last open crosscut
between the No. 4 and No. 5 entries. (These cracks apparently had been indicated on the diagram
by Thomas when he was deposed. Id.) He identified "two cracks" that ran over to a kettle
bottom. Id. The cracks were located "two breaks outby the last open crosscut." Id. He further
identified three cracks "outby the last open crosscut number two [entry];" Id. Finally, he
identified an ''unsupported crack in number one entry inbythe last open crosscut." Tr. 65.

30 FMSHRC 863

Counsel: Now, these other cracks that may have been surface
cracks, they may not, you just don't have that in
your notes, were these adverse roof conditions?
Hatfield: Yes.
Tr. 70-71.
Based on the laek of specificity regarding the location and presence of the "multiple
inadequately supported and unsupported surface cracks" (Gov't Exh. l), I conclude the Secretary
did not carry her burden of proof. I reach the conclusion after noting the allegation regarding
violative cracks is unequivocally restricted to "surface cracks." It is true Hatfield testified
"adverse conditions" in the form of other kinds of cracks existed {Tr. 71 ), but he did not mention
the other conditions in the order, and the order cannot be expanded via his testimony to
encompass conditions to which he never referred. 16
Despite knowing surface cracks had distinctive visual indicators, Hatfield was not able to
use the indicators to characterize the surface cracks allegedly constituting the violation. Nor could
he state which of the cracks he drew on the diagram (Gov't Exh. 9) were surface cracks. In fact,
his testimony regarding the nature of the cracks on the diagram was not entirely clear, but the
most reasonable interpretation of what he said is while some of the cracks indicated on the
diagram - indications made through reference to his notes - were surface cracks, some were not.
He could not say which were which, nor could he otherwise conclusively locate the surface
cracks. See Tr. 69-71. ("I saw the surface cracks, but as far as putting them in that location, I
didn't know that it was surface cracks." Tr. 70.)
There being no photographic evidence of the allegedly violative surface cracks, nor
physical descriptions to distinguish them, the Secretary essentially maintains they existed
somewhere in the area depicted in the diagram (Gov't Exh. 9) because Hatfield said so. This is
not enough to meet her burden of proof, especially given the fact Hatfield in his notes - which
were not offered into evidence - failed to distinguish between various kinds of cracks and only
used the word "crack" or "cracks" as this exchange between counsel for IO and Hatfield
established:
Counsel: [I]n all of the cracks ... [you documented
in your notes] you just wrote down the
word crack; is that correct?

16

Presumably it was possible prior to the hearing to modify the order to include the
additional allegedly violative cracks other than surface cracks or other ''adverse conditions/' but
it was not done.
30 FMSHRC 864

Hatfield: I wrote down crack, I wrote down cracks
plural.
Counsel: Right.
Hatfield: Yes, I did.
Counsel: You made no distinction at all between a
hairline pressure crack and a surface crack;
is that correct?
Hatfield: I don't think I wrote down hairline or surface
crack.
Counsel: You made no distinction between a crack and
a surface crack; did you?
Hatfield: No.
Tr. 150-151.
To summarize, with no demonstrative or testimonial evidence establishing the physical
appearance of the allegedly violative cracks and with no ability to establish which of the locations
Hatfield identified actually represented surface cracks, I conclude the Secretary fell short of
proving "[t]he 005 MMU [section] ha[d] multiple inadequately supported and unsupported
surface cracks" and "[s]ome ... intersecting surface cracks" as alleged in the order. Gov't Exh. 1.
The evidence and testimony offered by the Secretary should have been more specific.

THE KETTLE BOTTOMS
The allegation regarding "multiple inadequately supported and unsupported ... kettle
bottoms" is another matter. Gov't Exh. 1. Hatfield first testified there were "quite a few ... more
than a dozen" and they were "pretty obvious." Tr. 52. Counsel for the Secretary asked Hatfield
"how many separate unsupported kettle_ bottoms" Hatfield identified in his notes, and Hatfield
responded "I think there's 15." Tr. 68. These kettle bottoms had "no support at all." Id.
Hatfield did not recall the dimensions of the 15 kettle bottoms, but he knew they were kettle
bottoms. ("I don't remember the exact dimension[s]. I didn't note it in my notes or the violation.
I observed that they were kettle bottoms.") Id.; see also Tr. 149-150.
Mine foreman Fred Thomas conceded a few kettle bottoms were present, but they were not
"real noticeable" or "real prominent" (Tr. 199-200). However, he maintained the things Hatfield
pointed out were not kettle bottoms. Tr. 201, 236. There was nothing on the 005 section Thomas
felt was inadequately supported. Tr. 201-202. Hatfield was "seeing things that [weren't] there."

30 FMSHRC 865

Tr. 201. Jefferson agreed with Thomas that Hatfield pointed out things that were not kettle
bottoms. Like Thomas, Jefferson acknowledged there were some kettle bottoms on the section,
but, he maintained, they were supported. Tr. 309 - 311.
As with the alleged surface cracks, the Secretary offered no photographic evidence to
support her allegation of "multiple inadequately supported and unsupported ... kettle bottoms."
She rested her case solely on Hatfield's testimony the kettle bottoms existed as he indicated on
Government Exhibit 9. The question is whether the Secretary proved by a preponderance of the
evidence "multiple inadequately supported and unsupported ... kettle bottoms" existed in the
mine on June 12, and I conclude she did.
The testimony of Hatfield as to the existence of the kettle bottoms must be balanced
against the testimony of the company's witnesses as to their non-existence. Hatfield, an inspector
of long experience in underground coal mines (Tr. 31-33 ), clearly knew what kettle bottoms were.
Tr. 37-38, 69, 83-84. Company personnel who traveled with Hatfield on the day he issued the
order and who saw the section before the order was terminated also knew what they were, and
they uniformly maintained Hatfield incorrectly identified as kettle bottoms formations that were
not. See Tr. 202, 309-311, 346, 377.
None of the witnesses were, in my opinion, disingenuous. As ardently as Hatfield
believed he cited actual unsupported or inadequately supported kettle bottoms, the others
believed he did not. However, on balance, I credit the inspector's testimony that the inadequately
supported and unsupported kettle bottoms existed as he indicated on Gov't Exh. 9. I find it
telling, as Hatfield himself noted, that when he pointed out the inadequately supported or
unsupported kettle bottoms during the course of his inspection, neither Thomas nor anyone
traveling with him disagreed. Tr. 84, 114. If, in fact, Hatfield misidentified kettle bottoms, it is
reasonable to expect IO personnel to have protested long and loud, then and there. They did not.
Id. A close reading of the testimony reveals it was after he issued the order that they began to
argue he misidentified the formations.
Moreover, unlike the allegation involving the surface cracks, Hatfield testified each circle
he drew on the diagram represented an inadequately supported or unsupported kettle bottom. His
testimony in this regard was clear and it was persuasive. This was not a situation where some of
the circles represented kettle bottoms and some did not.
For these reasons, I find the inadequately supported and unsupported kettle bottoms
identified by Hatfield on Gov't Exhibit 9 existed, and IO violated its roof control plan by failing
to properly support them.

A significant and substantial (S&S) violation is a violation "of such nature as could
significantly and substantially contribute to the cause and effect of a ... mine safety and health

30 FMSHRC 866

hazard." 30 U.S.C. § 814(d). A violation is properly designated S&S, "if, based upon the
particular facts surrounding a violation, there exists a reasonable likelihood the hazard contributed
to will result in an injury or illness of a reasonably serious nature." Cement Div., Nat 'l Gypsum
Co., 3 FMSHRC 822, 825 (April 1981). To establish the S&S nature of a violation, the Secretary
must prove: (1) the underlying violation; (2) a discrete safety hazard - that is, a measure of
danger to safety - contributed to by the violation;· (3) a reasonable likelihood the hazard
contributed to will result in an injury; and (4) a reasonable likelihood the injury will be of a
reasonably serious nature. Mathies Coal Co., 6 FMSHRC 3-4(January1984); Buck Creek Coal
Co., Inc., 52 F. 3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc. v. Sec'y ofLabor, 81F.2d
99, 103 (5th Cir. 1988) (approving Mathies criteria).
It is the third element of the S&S criteria that is the source of most controversies regarding
S&S findings. The element is established only if the Secretary proves "a reasonable likelihood the
hazard contributed to will result in an event in which there is an injury." U.S. Steel Mining Co.,
Inc., 7 FMSHRC 1125, 1129 (August 1985). Further, an S&S determination must be based on the
particular facts surrounding the violation and must be made in the context of continued normal
mining operations. Texasgulf, Inc., 10 FMSHRC 1125 (August 1985)~ U.S. Steel, 7 FMSHRC at
1130.

Finally, the S&S nature of a violation and the gravity of a violation are not synonymous.
The Commission has pointed out that the "focus of the seriousness of the violation is not
necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S ·inquiry,
but rather on the effect of the hazard ifit occurs." Consolidation Coal Co., 18 FMSHRC 1541,
1550(September1996).
The Secretary has established the violation, in that she has proven inadequately supported
and unsupported kettle bottoms existed on the section as located by Hatfield on Gov't Exh. 9.
The inadequately.supported and unsupported kettle bottoms posed discrete safety hazards, in that
the material constituting the kettle bottoms was not part of the coal bed and the kettle bottoms
could slip from the roof at any time unless adequate support was provided. 17
The Secretary also established the inadequately supported and unsupported kettle bottoms
were reasonably likely to result in a serious injury. When asked by his counsel why he found the
violation to be reasonably likely to result in a permanently disabling injury, Hatfield responded, "I
thought there was a potential ... that there would be someone permanently disabled by falling
strata." Tr. 75. Throughout his testimony when using the word "strata" with regard to the roof,
Hatfield included falling kettle bottoms. See Tr. 37-38, 64. Given the fact approximately eight
miners worked and traveled under the cited kettle bottoms (Tr. 75), and given the fact the record
establishes the inadequately supported and unsupported kettle bottoms cou1d fall at any time (Tr.
17

See American Geological Institute, Dictionary ofMining, Mineral, and Related Terms,
2d. ed. (1996) at 297 (definition of"kettle bottom" stating a kettle bottom "may drop out of the
roof of a mine without warning, sometimes causing serious injuries to miners.")
30 FMSHRC 867

43-44), I find the Secretary met her burden of proving the third element of the S&S criteria.
She also established the fourth element. Clearly, being struck by a falling kettle bottom
subjected a miner to an injury of a reasonably serious nature or worse.

GRAVITY
The violation was serious. As I have noted, if a miner were struck by a falling kettle
bottom, serious injury or death would most likely result.

UNWARRANTABLE FAILURE AND NEGLIGENCE
Hatfield found the violation was due to the unwarrantable failure of the company to
comply with its roof control plan. Unwarrantable failure is "aggravated conduct constituting more
than ordinary negligence by a miner operator in relation to a violation of the Act." Emery Mining
Corp., 9 FMSHRC 1997, 2004(December1987). It is characterized by such conduct as "reckless
disregard," "intentional misconduct," "indifference," or a "serious lack of reasonable care." Id. at
2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-194(February1991); see also
Rock ofAges Corp. v. Sec '.Y ofLabor, 170 F. 3d 148, 157 (2d Cir. 1999); Buck Creek Coal, Inc. v.
MSHA, 52 F.3d 133, 135 (7th Cir. 1995) (approving the Commission's unwarrantable failure test).
Moreover, the Commission has examined the conduct of supervisory personnel in determining
unwarrantable failure and recognized a heightened standard of care is required of such
individuals. See Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011 (December 1987)
(section foreman held to demanding standard of care in safety matters); S&H Mining Inc., 17
FMSHRC 1918, 1923 (November 1995) (heightened standard of care required of section foreman
and mine superintendent).
I conclude, while the Secretary established the existence of the inadequately supported and
unsupported kettle bottoms was due to ordinary negligence on IO's part, she did not prove IO's
lack of care was unwarrantable. Not all kettle bottoms in the cited area of the section were
inadequately supported or unsupported. Witnesses from both sides agreed some kettle bottoms in
the cited area were properly supported. I infer from this that there was not a wide-spread and
reckless disregard of the requirements of the roof control plan. Rather, I find Jefferson tried, but
failed to meet the standard of care required of him.
There was no showing by the Secretary that Jefferson's failure was intentional. He was
not as careful as he should have been in making sure all kettle bottoms in the area were properly
supported, but he was not indifferent to his responsibilities. When observing the roof conditions,
he simply misjudged some of the kettle bottoms. The understandable nature of Jefferson's failure
was shown by the genuine and good faith disagreements between the inspector and IO personnel

30 FMSHRC 868

as to what constituted a kettle bottom. 18
Because I have found the violation was due to Jefferson's and, therefore, the company's
ordinary negligence, the order cannot be sustained.
OTHER CIVIL PENALTY CRITERIA
HISTORY OF PREVIOUS VIOLATIONS

The Secretary offered into evidence without objection an "Assessed Violation History
Report" for the mine. Gov't Exh. 8. The report shows, in the 24 months prior to the issuance of
the order in question, 317 violations had been· assessed for the mine, 313 of which had been paid.
Gov't Exh. 8 at 8. This is a large history.

The parties stipulated IO is a large operator and the Europa Mine is a large mine. Stip. 21.
GOOD FAITH ABATEMENT

Following the issuance of the order, IO moved rapidly to support the cited conditions so
the order could be lifted. This constituted good faith abatement on the company's part.
ABILITY TO CONTINUE IN BUSINESS

The parties stipulated any penalty assessed for the violation will not affect the ability ofIO
to remain in business. Stip. 4.
·CIVIL PENALTYASSESSMENT
ORDER NO.
7252422

DATE
6/12/06

30 U.S.C. §
75.220(a)(l)

PROPOSED ASSESSMENT
$6,900

I have found the Secretary proved the violation only so far as it is based on the cited kettle
bottoms. Nonetheless, even though a major part of the alleged violation was not established, the

18

Moreover, Hatfield's finding of unwarrantable failure and high negligence may have
been based on personal pique more than on an analysis of the standard of care IO and its
employees were required to meet. When asked why he found the violation was due to IO's
"high" negligence, he responded, "Because I talked to the operator on several occasions about the
roof control plan and it seemed I wasn't getting anywhere with just writing a citation." Tr. 76.

30 FMSHRC 869

part that was proven represents a serious violation. I further have found the violation was not the
result of IO' s unwarrantable failure to comply, but, rather, was caused by its ordinary negligence.
Given these findings and the other civil penalty criteria noted above, I conclude a civil penalty of
$2,500 is appropriate.

SETTLEMENT
In Citation No. 7252931, the Secretary alleged a miner had gone inby the last row of
permanent roof supports in violation of the mine's roof control plan. The Secretary maintained
the violation was the result oflO's high negligence and unwarrantable failure to comply with its
plan. However, counsel for the Secretary explained, while the miner had proceeded inby the roof
support as alleged, it was questionable whether the Secretary could establish her negligence and
unwarrantable allegations. The Secretary noted IO management had no knowledge the miner was
directed to go inby the support, and she noted the person who was responsible for the incident had
been asked to leave IO's employ. The Secretary, therefore, agreed to modify the citation from one
issued under section 104(d)(l) of the Act (30 U.S.C. § 814(d)(l)) to one issued pursuant to section
104(a). 30 U.S.C. § 814{a). She also agreed to modify an inspector's negligence finding to
"moderate." For its part, IO agreed to pay a civil penalty of $2,500 for the violation. Tr. 19-20. I
approved the settlement. Id.

ORDER
The S&S finding in Order No. 7252422 IS SUSTAINED. The finding of unwarrantable
failure upon which Order No. 7252422 is in part based IS REJECTED, and the finding of high
negligence in Order No. 7252422 IS MODIFIED to a finding of moderate negligence. The order
itself· IS MODIFIED from an order issued pursuant to section 104(d)(l) of the Act to a citation
issued pursuant to section 104(a).
As agreed in the settlement, within 40 days of the date of this decision, the Secretary
SHALL MODIFY the finding of high negligence in Citation No. 7252931 to a finding of
moderate negligence and SHALL MODIFY the citation from one issued pursuant to section
104(d)(l) of the Act to one issued pursuant to section 104 (a) of the Act
Within 40 days of the date of this decision, IO SHALL PAY a civil penalty of$2,500 for
the violation of section 75.220(a)(l) set forth in Citation No. 7252422 and SHALL PAY a civil
penalty of$2,500 for the violation of section 75.220(a)(l) set forth in Citation No. 7252931.
Upon modification of Citation No. 7252931 and payment of the penalties, this proceeding IS

DISMISSED.

J)Mafg'~
David F. Barbour
Administrative Law Judge
30 FMSHRC 870

Distribution: (Certified Mail)
Benjamin Chachkin, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209-2247
David J. Hardy, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd. East, P.O. Box 273,
Charleston, WV 25321
/ej

30 FMSHRC 871

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

August 27, 2008

JIM WALTER RESOURCES, INC.,
Contestant

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

CONTEST PROCEEDING
Docket No. SE 2006-295-R
Citation No. 7684534; 07/21/2006

No.4Mine
Mine ID 01-01247
CNIL PENALTY PROCEEDING
Docket No. SE2007-197
A.C. No. 01-01247-110958

v.
JIM WALTER RESOURCES, INC.,
Respondent

No.4Mine

DECISION
Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, on behalf of the Secretary of Labor;
David Smith, Esq., Maynard, Cooper & Gale, Birmingham, Alabama, on behalf of
Jim Walter Resources, fucorporated.

Before:

Judge Zielinski

These cases are before me on a Notice of Contest filed by Jim Walter Resources,
Incorporated ("JWR") and a Petition for Assessment of Civil Penalties filed by the Secretary of
Labor pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 815. The petition alleges that JWR is liable for one significant and substantial violation of the
Secretary's Mandatory Safety Standards for Underground Coal Mines, and proposes the
imposition of a civil penalty in the amount of $35,500.00. The citation alleging the violation
was issued following MSHA's investigation of a fatal accident that occurred on March 29, 2006,
at JWR's No. 4 mine. A hearing was held in Birmingham, Alabama, and the parties filed briefs
after receipt of the transcript. For the reasons set forth below, I find that JWR did not commit

30 FMSHRC 872

either of the alternatively alleged violations, and vacate the citation. 1
Findings of Pact- Conclusions of Law
JWR's No. 4 mine is located in Tuscaloosa County, Alabama, near the community of
Brookwood. It provides employment for 454 persons, and operates six days per week, three
shifts per day, with production on all shifts. One longwall panel and several mechanized mining
units and continuous mining machine units are operated in the mine. As of March 29, 2006, the
date of the accident, longwall panel N-13 had been completed, i.e., mined to its "stop point."
Polypropylene mesh, reinforced with wire rope, had been installed along the roof line for the last
30 feet of the longwall advance. The mesh was fed over the tips of the longwall shields and, as
the shields were advanced, roof falls in the gob· anchored the mesh to the mine floor. At the stop
point, the shields were advanced to within five feet of the face. JWR was in the process of
installing roof bolts in that five-foot space, pinning the forward edge of the mesh to the mine
roof. The roof bolts and mesh, along with wooden supports installed after the last pass of the
longwall shear, were intended to provide roof support to allow removal of the shields.
Roof bolting had started on the midnight shift, and was continued on the day shift on
March 29. Three crews of miners, four persons each, including a supervisor, worked to install
the bolts. The Secretary's regulations require that operators of underground coal mines develop
and follow a roof control plan, approved by MSHA's District Manager, that is suitable for the
prevailing geological conditions and the mining system used at the mine. 30 C.F.R.
§ 75.220(a)(l). The regulation also provides that additional measures shall be taken to protect
persons if unusual hazards are encountered. JWR' s approved roof control plan required that roof .
bolts be a minimum of36 inches long, have five-inch square plates, and be installed on five-foot
centers. Ex. G-6. The section of the plan dealing with longwall roof control also provided:
This plan contains the minimum roof control measures to be used and is
formulated for normal roof conditions in association with the mining system
described. In active areas where subnormal roof conditions are encountered, the
minimum roof control methods will be supplemented with longer or additional
roof bolts, posts, crossbars, cribs, Propsetters, Packsetter Bags, steel mats, or wire
mesh, Link-N-Lock cribs, "Cans," or cable bolts, whichever is most applicable.
Ex. G-6 at 27.
Subnormal roof conditions existed at two locations along the face of the longwall panel,
near shields numbered 110 and 130. The roof at shield 130 was particularly jagged and difficult
to bolt. In the area of shields· 100 to 110, smooth slick joints in the rock created instability that
had resulted in a roof fall during the midnight shift. The fall created a cavity ranging from one to

1

As noted above, the Secretary was permitted to aniend the citation to allege that JWR
had violated either of two mandatory standards.
30 FMSHRC 873

three feet high that ran for 30 feet along the five-foot space between the tips of the shields and
the face. Tr. 230, 341. The fall had been cleaned up, and a day shift roof-bolting crew, William
Hardy, Garry Jones and William Ducker, began to install bolts where the previous shift had
stopped. Hardy, who had over 28 years of mining experience at JWR, took the drill, Ducker was
putting resin into the bolt holes and Jones, who had over 23 years of mining experience, was
preparing bolts to be installed. The crew worked from the "pan line," the steel pan along which
coal cut by the shear was transported to conveyor belts that removed it from the mine. The
crew's work area under the longwall shields is depicted in a drawing in MSHA's accident report.
Ex. GA at 8. A copy of the drawing is included as an Appendix to this Decision.
Because of the subnormal roof conditions, 48-inch bolts were being used instead of the
36-inch bolts specified in the plan, six-inch square plates were being used instead of five-inch
plates, and wooden ''T-bars" were being installed to provide additional support. The experienced
roof bolting crew also decided to install two rows of bolts in the five-foot space, and place them
on centers of three and one-half to four feet. This resulted in installation of substantially more
bolts than were required under the plan, the provisions of which would have been satisfied with
one row of bolts on five-foot centers. At about 10:00 a.m., after Hardy had installed about 12
bolts, Jones asked to take the drill and Ducker went to eat lunch. Jones began to drill holes for
the installation of bolts. Hardy retrieved some supplies, and then began to prepare bolts for
installation.
The miners were using a hand-held pneumatic powered drill, operated by controls
mounted on a handle attached to an arm about three feet long that rotated out from the drill body.
The drill is depicted in photographs taken at the scene. Ex. G".'5(a), (b), (g). The handle had a
lever that applied air pressure to a cylinder rod that protruded from the bottom of the cylindrical
drill. When the drill was in a vertical position, the rod rested on the mine floor, and application
of air pressure forced the drill steel up against the roof. Separate controls governed drill motor
rotation and the flow of water and air for flushing cuttings from the hole. Drill steels of five and
six feet in length were supplied. hi order to start drilling a hole for a bolt, the operator reached
out to position the _drill, usually at a slight angle, and activated the air pressure lever to push the
drill steel up against the roof. He then swung the control arm out, stepped back further under the
shield, and began to operate the drill.
Because it was difficult to see up into the cavity, the operator stood at the edge of the
shield and turned at an angle of approximately 45 degrees to the face. From that position, he was
able to see the point where the drill steel contacted the roof, and could position the drill to install
a bolt in the correct location. The face ventilation air current flowed from the headgate to the
tailgate of the longwall, i.e., from right to left as one's back was to the gob. Hardy had been
working from left to right, and had closed the unbolted gap to about 19 feet. He had rotated his
body in a clockwise direction, and positioned himself at about a 45 degree angle to the face. The
roof directly inby his left shoulder, and closest to the face, had been bolted and was considered to
be permanently supported. However, the face ventilation air current caused water and drill
cuttings to blow toward him. When Jones took the drill, he rotated his body in a counter-

30FMSHRC 874

clockwise direction, so that the ventilation air current took the water and cuttings away from him.
However, he continued to work from left to right. Consequently, the roof adjacent to his right
shoulder, and closest to the face, had not yet been bolted: Any portion of the roof more than five
feet away from the last-installed roof bolt was considered unsupported roo£
About 11 :20 a.m., Jones was beginning to install his fifth bolt Scratch marks on the
mine roof, where he apparently attempted to start the next hole, were located three feet from the
tip of the shield and four feet from the last-installed bolt. Tr. 75, 144, 152, 296-98; ex. G-5(h),
G-8 at 5. Hardy was two shields away (about ten feet), assembling bolts, plates and T-bars. His
back was to Jones. He heard a "crashing" noise, turned, and saw rocks and debris falling around
the drill, and "coming down" the handle of the drill. Tr. 350-53. He then saw Jones bow his
head forward slightly and bend his knees. Jones then straightened up, pushed away from the
drill, and moved back, away from the face. His arms were flailing, as if he were trying to regain
his balance, and he fell backward onto the pan line, striking his head on it. He stopped breathing,
and was largely unresponsive. Several miners immediately administered first aid, and called for
emergency assistance. Denver R. Cantor, the bolting crew's supervisor, who was approximately
40 feet away inspecting the bolted roof, was among the first to reach Jones. Jones was
transported out of the mine and his care was turned over to emergency medical technicians, who
transported him to a hospital. He died from his injuries on April 10, 2006.
MSHA was promptly notified of the accident. Raymond C. Dorton, Jr., an MSHA roof
control specialist and accident investigator, arrived on the scene before most of the miners had
left the mine. He issued an order pursuant to section 103(k) of the Act, preserving the accident
scene. He inspected the area, took photographs and interviewed those present. When the
interviews had been concluded, JWR inquired about whether the order could be lifted. Dorton
was interested in identifying some steps that could be taken to prevent future similar occurrences.
He and Darrell L. Loggains, JWR's longwall manager, discussed instructing miners to position
themselves perpen4icular to the face when starting to install bolts, and to remain under supported
roof as subsequent bolts were installed. Dorton indicated that those measures would be sufficient
to lift the order. Loggains typed up the measures while Dorton showered, and called them down
to the miners working underground. Dorton then lifted the order. The measures were
subsequently added to JWR's roof control plan at MSHA's insistence. Ex. G-6 at p. stamped
"JWR-D 197-000079."
After completing his investigation and leaving the mine, Dorton did not feel that JWR
had violated its roof control plan or any other regulation. However, when the investigative report
was issued, on July 21, 2006, it had been concluded that JWR had violated a mandatory safety
standard, and Citation No. 7684534 was issued. 2 Ex. G-2, G-4. The citation was terminated at
2

JWR argues that the investigative report is unreliable. It points to several statements
that are contradicted by the record, specifically, that the mine roof in the area of the accident had
not been scaled, that Hardy had taken the same drilling position that Jones had, and that a
specific rock had fallen from the right and struck Jones. The first two points are of no

30 FMSHRC 875

the same time that it was issued, because the actions taken to lift the section 103(k) order were
deemed sufficient to remedy the violation, and because the area had been mined out. JWR
contested the citation and the subsequently assessed civil penalty.
Citation No. 7684534, as originally issued, alleged a violation of 30 C.F.R. § 75.202(a),
which provides, in pertinent part:
The roof, face and ribs of areas where persons work or travel shall be
supported or otherwise controlled to protect persons from hazards related to falls
of the roof, face or ribs and coal or rock bursts.
The "Condition or Practice" section of the citation stated:
The operator failed to support or otherwise control the roof to protect
persons from hazards related to falls of the roof on the N-13 Longwall Panel.
On March 29, 2006, an area of unsupported roof fell and led to a fatal injury of a
miner on April 10, 2006.
Ex. G-2.
The citation was issued pursuant to section 104(a) of the Act and also alleged that the
fatality occurred as a result of the violation, that it was significant and substantial ("S&S"), that
one miner was affected and that the operator's negligence was moderate.
The decision to charge JWR with a violation represented the "collective" judgment of
several Department of Labor personnel, including employees at MSHA and the Office of the
Solicitor. It was not unanimous. Although Dorton was designated to issue the citation, he did
not believe that JWR violated the regulation, and has held that opinion from the date of the
accident to present. Tr. 82, 255-56. As he explained at the hearing, he disagreed with the
decision to charge _a violation of section 75 .202(a), "[b]ecause referencing 202(a), my belief is
that 202(a) says that the roof will be supported where persons work or travel. My belief is that is
what they were doing. They were in the process of supporting the top in the area where persons
work or travel." Tr. 82.
On October 25, 2006, Dorton executed a modification of the citation to specify a
violation of section 75.220(a){l), instead of section 75.202(a). Section 75.220(a){l) provides:
Each mine operator shall develop and follow a roof control plan, approved
by the District Manager, that is suitable to the prevailing geological conditions,

consequence. As noted above, Dorton made clear that the conclusions about how the accident
occurred were assumptions, and that there is no evidence that a particular rock struck Jones, or, if
he was struck by a rock, where it came from.
30 FMSHRC 876

and the mining system to be used at the mine. Additional measures shall be taken
to protect persons if unusual hazards are encountered.
The condition and practice section of the citation was changed to read:
The operator failed to take additional measures to protect persons from
unusual hazards encountered on the N-13 longwall panel. The mine operator's
existing procedures for installing roof bolts on the longwall face did not include
provisions for safe positioning of the drill operator. An area of roof fell causing
the fatal injury of a miner.
Ex. G-2.
On February 25, 2008, the citation was again modified to allege that JWR had violated
either section 75.202(a) or 75.220(a)(l), andthe condition or practice section was changed to
read:
The operator failed to support or otherwise control the roof to protect
persons from hazards related to falls of the roof on the N-13 Longwall Panel. On
March 29, 2006, an area of unsupported roof fell and led to a fatal injury of a
miner on April 10, 2006. The operator failed to take additional measures to
protect persons from unusual hazards encountered on the N-13 LOngwall Panel.
The mine operator's existing procedures for installing roof bolts on the Longwall
face did not include provisions for safe positioning of the drill operator. An area
of roof fell causing the fatal injury of a miner.
Ex. G-2.
The Secretary subsequently filed a motion in these proceedings to amend the citation to
include the alternative allegations. By Order dated March 10, 2008, the Secretary's motion was
granted.3

3

Amendment of a citation or order after a notice of contest has been filed should be
accomplished by motion, not on the Secretary's own initiative. Consolidation Coal Co.,
4 FMSHRC 1791, 1795 n. 11 (Oct. 1982). The Secretary's motion was granted, over JWR's
opposition, because the alternative allegations were based upon the same facts and presented no
additional abatement issues, and JWR had been put on notice of the section 75.220(a)( 1)
allegation shortly after the initial modification of October 25, 2006, when Dorton's first
deposition was taken. See Empire Iron Mining Partnership, 29 FMSHRC 999, 1003-05
(Dec. 2007).
30 FMSHRC 877

The Section 75-202(a) Violation
The Secretary's position on this alleged violation presents the unusual, perhaps unheard
of, situation where the MSHA inspector who issued the violation and testified on behalf of the
Secretary does not believe that the alleged violation occurred. JWR argues that where "the
Secretary's authorized, designated representative cannot - or will not, based on a lack of
conviction - testify that an alternatively plead standard has been violated, it is a violation of the
Mine Act (and general principles of due process) to require [it] to rebut such an allegation."
Resp. Br. at 7-8. JWR's argument is based upon section 104{a) of the Act, which reads, in
pertinent part:

If, upon inspection or investigation, the Secretary or his authorized
representative believes that an operator of a coal or other mine subject to
this Act has violated this Act, or any mandatory health or safety standard,
rule, order, or regulation promulgated pursuant to this Act, he shall, with
reasonable promptness, issue a citation to the operator....
30 U.S.C. § 814{a).
However, the Act specifically recognizes that the Secretary may cause a citation to be
issued, if she believes, after investigation, that a violation occurred. JWR does not suggest that
the Secretary's Office of the Solicitor was without authority to file the Petition for Assessment of
Civil Penalty, or to pursue either of the alternative allegations. The Secretary's burden is to
prove the violations and related allegations, e.g., gravity and negligence, by a preponderance of
the evidence. To be sure, that burden is amplified by the absence of a witness who actually
believes that the evidence establishes a violation. But, it is not impossible. If the Secretary can
meet her burden, relying on all of the evidence introduced at the hearing, a violation can be
established. The fact that her chief witness does not support the alleged violation is not fatal.

In Canon Coal, Co., .9 FMSHRC 667, 668 (April 1987), the Commission held that:
Questions of liability for alleged violations of this broad aspect of this standard
[the precursor to the present section 75.202(a)] are to be resolved by reference to
whether a reasonably prudent person, familiar with the mining industry and the
protective purpose of the standard, would have recognized that hazardous
condition that the standard seeks to prevent. Specifically, the adequacy of
particular roof support or other control must be measured against the test of
whether the support or control is what a reasonably prudent person, familiar with
the mining industry and protective purpose of the standard, would have provided
in order to meet the protection intended by the standard. We emphasize that the
reasonably prudent person test contemplates an objective - not subjective analysis of all the surrounding circumstances, factors, and considerations bearing
on the inquiry in issue. (citations omitted)

30 FMSHRC 878

The Secretary argues that JWR was aware of adverse roof conditions where Jones was
working, but took no action to provide additional roof support to protect Jones from the roof fall.
She points out that JWR' s roof control plan provided a list of materials that, she contends, "could
and should" have been used to protect Jones, including, posts, crossbars and cribs, and that
JWR's failure to employ such measures constituted a violation of section 75.202(a) under
Canon's reasonably prudent person test. Sec'y. Br. at 28.
The Secretary's argument is not supported by the evidence. It amounts to little more than
the strict liability interpretation that was rejected in Canon, i.e., rock fell and caused an injurytherefore the standard was violated. There was no evidence that the roof control measures
employed by JWR were inadequate or insufficient to support the roof In fact, it appears that
they were, because none of the bolts, with their plates and T-bars, failed to perform their intended
function. As Dorton explained, JWR was doing what was required under the standard, i.e.,
installing appropriate support for the roof
The additional measures noted by the Secretary, posts, crossbars and cribs, do not
automatically pop into place with the push of a button. Like roof bolts, they must be installed by
miners. There was no evidence as to whether such measures would have been appropriate, or
even feasible, under the conditions presented, or whether installing them would have presented
greater or lesser exposure to a hazard and risk of injury than the installation of the roof control
measures actually being employed. Failure to use roof control measures other than those being
installed was not mentioned, or even alluded to, in MSHA' s accident investigation report, the
twice-modified citation, or any of the other reports or documents associated with the incident. ·
The Secretary also contends that JWR' s failure to have previously implemented the
"additional safety practice," that was developed in order to lift the section 103(k) order, i.e.,
positioning of the drill operator, amounted to a violation of section 75.202(a). Whether the
absence of the "practice" could be considered a failure to support or otherwise control the roof,
as the regulation requires, is debatable. Assuming that it could, under Canon, the test to be
applied is ''whether the support or control is what a reasonably prudent person, familiar with the
mining industry and protective purpose of the standard, would have provided in order to meet the
protection intended by the standard." 9 FMSHRC at 668.
The safety practice at issue was not developed as a roof support or control measure to
meet the protection intended by section 75.202(a). When Dorton participated in developing the
practice, and approved its implementation as sufficient to lift the order, he did not believe that
JWR had committed any violation, but was simply trying to identify possible preventive
measures. Tr. 322. Dorton had worked at JWR's No. 4 mine for 13 years, including several
years as an outby longwall foreman. As an MSHA roof control specialist from 2001-2005, he
reviewed, or assisted in reviewing JWR's roof control plan at six-month intervals, and visited the

30 FMSHRC 879

mine to check on compliance with the plan and consult on roof control issues. 4 Although he had
not personally observed installation of roof bolts at the termination of a longwall panel, he had
extensive first-hand knowledge of the roof conditions in the mine, and had seen similar
conditions on prior occasions. Tr. 244, 246-48, 320. JWR had been following its procedure for
bolting the roof in preparation for removal of the shields for many years, and had never
experienced an accident from a roof fall. Tr. 215, 262-63, 427. Over the years, there were a
considerable number of persons, at both JWR and MSHA, who were very familiar with the
mining industry and the protective purpose of the standard, the roof conditions at JWR's mine
and JWR's procedures for bolting the area between the shields and face, none of whom
suggested the practice, or sought to include it in the roof control plan for the No. 4 mine, or any
other mine prior to the accident. Tr. 246-48, 263, 326-27.
Considering all of the evidence, I find that the Secretary has not proven by a
preponderance of the evidence that the safety practice was a support or control that a reasonably
prudent person, familiar with the mining industry and protective purpose of the standard, would
have provided in order to meet the protection intended by the standard.
It is also far from clear that the accident could have been avoided, had the safety practice
been followed. The objective of the practice is to assure that the drill operator remains under
roof that is either supported by roof bolts or shields. Dorton concluded, from his investigation,
that Jones was under the shields. Tr. 252, 297-99. No one knows exactly what happened to
cause Jones to stumble backward and fall. Hardy saw some debris come down from the roof
around the drill motor. That material most likely came from an area of supported roof, because
Jones had started the hole within four feet of the last installed bolt. If Jones was struck on the
hands by a rock, neither Dorton, nor anyone else knows where such a rock would have come
from, i.e,whether it would have come from supported or unsupported roof. Tr. 272, 290. It is
possible that Jones was startled by the debris and fell backward as he attempted to back away
from it. His fatal injury was not directly caused by rock falling from the roof, and, with the
possible exception of the scrape on his right hand, it is not clear that any of the injuries he
suffered were so caused. As JWR argues, the accident could very well have happened even if
Jones had been operating under the newly established safety practice.
The Secretary also argues that JWR failed to assign enough miners to the crew so that
personnel would have been available to ''watch or to assist" Jones in carrying out the drilling.
Sec'y Br. at 28. Again, the evidence does not support her position, which, like her main
argument on this alleged violation; does not appear in the accident investigation report or any
other documentation associated with the incident. The Secretary relies upon the testimony of
JWR officials. However, those officials testified that the work crews were adequate in size, and
allowed for individuals to take breaks and attend to other tasks. Tr. 124-29, 182-83, 222. As
JWR argues in its brief, the statements were to the effect that "safety is enhanced by having co-

4

Dorton' s experience, education and other qualifications are detailed in his resume.

Ex. G-15.
30 FMSHRC 880

workers paying attention to the work of co-workers while they all work together. [They cannot]
be fairly interpreted as recommending that roof bolting crew sizes be increased under the
circumstances of this case." Resp. Br. at 27-28. As JWR goes on to pointout, no such changes
were suggested or implemented in order to lift the section I 03(k) order or in subsequent ·
amendments of JWR's roof control plan. To the extent that the Secretary's argument could be
construed as an attempt to amend the citation, which would require additional abatement efforts,
it would be denied.
I find that the Secretary failed to prove, by a preponderance of the evidence, that JWR
violated section 75.202(a).
The Section 75.220(a)(l) Violation
As noted previously, section 75.220(a)(l) provides:
Each mine operator shall develop and follow a roof control plan, approved
by the District Manager, that is suitable to the prevailing geological conditions,
and the mining system to be used at the mine. Additional measures shall be taken
to protect persons if unusual hazards are encountered.
The Secretary's regulations governing roof control plans also provide that: ''No proposed
roof control plan or revision to a roof control plan shall be implemented before it is approved."
30 C.F.R. § 75.220(c).
JWR's MSHA-approved roof control plan contains provisions specifically addressing
roof support for the termination of a longwall panel and removal of mining equipment. It
specifies that roof bolts be installed in the space between the face and the tips of the shields; that
roof bolts have a minimum length of36 inches; that bolts be installed on five-footcenters; and
that additional rows of bolts be installed ifthe distance between the face and the tips of the
shields exceeds five feet. The plan also specified additional measures to be used where
"subnormal roof conditions" are encountered.

1. General Information
This plan contains the minimum roof control measures to be used and is
formulated for the normal conditions in association with the mining system
described. In active areas where subnormal roof conditions are encountered, the
minimum roof control methods will be supplemented with either longer or
additional roof bolts, posts, crossbars, cribs, Propsetters, Packsetter Bags, steel ·
mats, or wire mesh, Link-N-Lock cribs, "Cans," or eable bolts whichever is most
applicable.
Ex. G-6 at 27.

30 FMSHRC 881

The "additional measures" that the Secretary asserts that JWR failed to implement were:
1) a procedure requiring miners to "drill in the direction wherein roof support in the form of roof
bolts or the longwall shield would have been overhead or in the direction from which the miners
were bolting," and 2) "having four miners assisting and watching the adverse roof for ...
'abnormal' situations." Sec'y Br. at 25. Neither of these additional measures were specified in
JWR' s roof control plan at the time of the accident. The former is the safety practice that was
implemented following the accident in order to secure lifting of the section 103(k) order, and was
later added to the roof control plan. The latter appeared only in the post-hearing briefing of this
case.
Initially, it strikes me that the Secretary is, in effect, seeking to charge JWR with a
violation of provisions that were not included in its roof control plan at the time of the accident,
and which, by regulation, it could not have unilaterally adopted or implemented. Dorton
essentially agreed and testified that, in his opinion, JWR had not violated its roof control plan, as
it existed on the day of the accident. Tr. 255-57. JWR appears to concede that where an operator
is in full compliance with its approved roof control plan, the Secretary can proceed under the
general "additional measures" clause of section 75.220(a)(l ), citing Wabash Mine Holding Co.,
27 FMSHRC 672 (Oct. 2005) (ALJ). Resp. Br. at 13. However, it is not clear that Wabash, in
fact, so holds and, in any event, it is not binding precedent. Were it necessary to decide the issue,
I would hold that, where the additional measure urged by the Secretary was not specified in the
operator's roof control plan, the Secretary cannot properly allege a violation of the roof control
plan regulation, section 75.220(a)(l ), but may proceed under section 75.202(a), the operator's
general obligation to support or otherwise control the roof, face, and ribs of areas where persons
work or travel. So. Ohio Coal Co., 10 FMSHRC 138, 140-41 (Feb. 1988)(compliance with an
approved roof control plan does not preclude liability for failure to comply with a generally
applicable regulation requiring adequate roof support). Without reference to a specific plan
provision, the last sentence of section 75.220(a)(l), requiring that additional measures be taken to
protect persons if unusual hazards are presented, appears to add nothing to the operator's general
obligation to· control roof conditions, as specified in section 75.202(a). The Secretary does not
argue that a violation of the "additional measures" requirement of section 75.220(a)(l) should be
judged by any different legal standard than that applicable to a violation of section 75.202(a).
It is not necessary to decide the legal issue identified above, because I find that the
Secretary has not proven a violation of section 75.220(a)(l ). I agree with the Secretary that the
roof conditions where the accident occurred were "unusual hazards," within the meaning of the
regulation. However, I find that JWR employed appropriate additional measures, as specified in
its roof control plan, to address them.

While JWR argues that the roof conditions in the area of the accident did not constitute
unusual hazards, it is clear that they were substantially more hazardous than those typically
found, especially considering the mining activity occurring at that time and location. Dorton
identified adverse roof conditions in the area of the accident as slicken-sided joints, very
unconsolidated material that lacked cohesion. Tr. 66-68. A roof fall had occurred in the area on

30 FMSHRC 882

the previous shift. Cantor regarded the area as a "bad spot" presenting subnormal roof
conditions. Tr. 186-88. While similar roof conditions might have been encountered in the past
and were simply mined through, the area of the accident could not be mined through because
panel N-13 had reached its stop point. The adverse roof conditions had to be dealt with, and
made safe for miners who would be working in the area to remove the shields. I have no
difficulty finding that the adverse conditions in the area of the accident were "unusual hazards"
that required JWR to implement additional measures to control the roof under its roof control
plan.
JWR employed several "additional measures" to control the adverse roof conditions. It
used roof bolts that were 12 inches longer than required, larger bearing plates, and added T-bars.
It also installed substantially more bolts, on closer spacings than specified in the plan. 5 The
Secretary has not identified any additional measure specified in the plan at the time of the
accident that JWR should have implemented, but did not. The Secretary's arguments on
implementation of the safety practice and crew size were rejected previously. They are no more
valid under section 75.220(a)(l).
I find that the Secretary failed to prove, by a preponderance of the evidence, that JWR
violated section 75.220(a)(l).

ORDER

Jim Walters Resources' contest to Citation No. 7684534 is sustained. Citation
No. 7684534 is VACATED, and the Petition for Assessment of Civil Penalty in Docket
No. SE 2007-197 is hereby DISMISSED.
.---j .

i/;f4v~·
--- - - --·- ------

/~l--

Michael E ...Z1elinski
Adminisfrative Law Judge
/

···.--------~

5

JWR argues that, because its plan's additional measures provision is worded in the
singular, that it was only obligated to use one of the specified "additional measures." Whether or
not JWR's literal reading of the plan is correct, under section 75.202(a), it would have been
obligated to use any measures reasonably necessary to control adverse roof conditions, regardless
of whether they were specified in its roof control plan.
30 FMSHRC 883

Distribution (Certified Mail):
David Smith, Esq., Maynard, Cooper & Gale, P.C., 1901 Sixth Avenue North,
2400 AmSouth/Harbert Plaza, Birmingham, AL 35203
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church St.,
Suite 230, Nashville, TN 37219-2456

30 FMSHRC 884

Longwall Work Area

30 FMSHRC 885

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

August 27, 2008
CONTEST PROCEEDINGS

CLIMAX MOLYBDENUM COMPANY,
Contestant

Docket No. WEST 2007-330-RM
Citation No. 6315468; 02/23/2007

v.
Docket No. WEST 2007-333-RM
Citation No. 6315469; 02/26/2007
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Henderson Operations
Id. No. 05-00790

CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 2007-480-M
A.c. No. 05-00790-115261

v.

Docket No. WEST 2007-776-M
A.C. No. 05-00790-121855

CLIMAX MOLYBDENUM COMPANY,
Respondent

Henderson Operations
DECISION

Appearances:

Timothy R. Olson, Esq., Jackson Kelly PLLC, Denver, Colorado,
for Climax Molybdenum Company;
Timothy S. Williams, Esq., Office of the Solicitor, U.S. Department
of Labor, Denver, Colorado, for the Secretary of Labor.

Before:

Judge Manning

These cases are before me on two notices of contest filed by the Climax Molybdenum
Company ("Climax") and two petitions for assessment of civil penalty filed by the Secretary of
Labor, acting through the Mine Safety and Health Administration (''MSHA") pursuant to
sections 105andI10 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and
820 (the "Mine Act"). Climax contested Citation Nos. 6315468 and 6315469. An evidentiary
hearing was held in Denver, Colorado. The parties introduced testimony and documentary
evidence and filed post-hearing briefs.

30 FMSHRC 886

I. THE CITATIONS
Climax is a division of Freeport-McMoRan Copper & Gold, Inc., and it operates the
Henderson Mine and Mill. The mill, which is located in Grand County, Colorado, crushes and
processes the ore that has been transported from the mine. MSHA inspector Rodric Breland was
at the mill on February 23, 2007, when he observed conditions which he believed violated the
Secretary's safety regulations. Inspector Breland issued Citation No. 6315468, under section
104(a) of the Mine Act, alleging a violation of30 C.F.R. § 57.14112(b) as follows:
The inspection/maintenance cover plate was left open on the North
Dry Feed conveyor. The conveyor belt was in operation and the
open cover plate exposed an approximate 18 inch wide by 12 inch
high opening to the head pulley. The open access measured
approximately 37 inches from the working platform and the head
pulley measured approximately 16 inches inside the chute/guard.
With the cover plate open, a miner is exposed to an entanglement
injury with the head pulley.
He determined than an injury was reasonably likely and that any injury would likely be
fatal. He determined that the violation was of a significant and substantial nature ("S&S") and
that Climax's negligence was moderate. The Secretary proposes a penalty of $614.00 for this
citation.
Inspector Breland also issued Citation No. 6315469, under section 104(d)(l) of the Mine
Act, alleging a violation of30 C.F.R. § 57.14105 as follows:
It is common practice to clean material build-up inside the head
pulley guard/chute on the North Dry Feed conveyor while the
conveyor is in operation. According to two different operation
supervisors, Dean Schonlau and Mike Birmingham stated that the
cover plate is opened and a wooden bar is used to scale build-up of
material off the inside of the.chute where material dumps off the
conveyor. . . . Where scaling of material build-up is performed, the
head pulley measures approximately 12 inches between the pulley
and chute structure. This hazardous work practice is performed on
an as-needed basis, the cover plate is opened and material build-up
is checked for approximately six times a day. The company has
engaged in aggravated conduct constituting more than ordinary ·
negligence in that this hazardous work practice has been [accepted]
and not recognized as a hazard for a great length of time. Miners
have been exposed to serious injury while performing this
hazardous task of cleaning material build-up inside the guard/chute

30 FMSHRC 887

in close proximity with the head pulley while the conveyor is in
operation.
He determined than an injury was reasonably likely and that any injury would likely be
fatal. He determined that the violation was of a significant and substantial nature ("S&S") and
that the violation was the result of the company's unwarrantable failure to comply with the safety
standard. Negligence was designated as high. The Secretary proposes a penalty of $4,500.00.

II. FINDINGS OF FACT
1. Climax operates a leach plant at the Henderson Mill and the citations were issued for
conditions at the north dryer feed chute in the leach plant.
2. Molybdenum material is fed onto the north dryer feed belt by a chute from the drum
filter. (Tr. 8-9). It is then carried by the north dryer feed belt to the north dryer feed chute where
the material drops off the belt and onto the distributor augers approximately nine feet below. (Tr.
9-11, 113). This assembly is depicted in the Secretary's first exhibit. (P-1). 1

3. There is a door on the north dryer feed chute. (Tr. 12; Ex. P-2). The dimensions of
the door are 18 inches wide by 12 inches high and the bottom of the door is 37 inches from the
work surface below. (Tr. 14-16; Bxs. P-4, P-5, C-1). This door is what the inspector referred to
as the "inspection/maintenance cover plate" in Citation No. 6315468.
4. When the door is opened the inside walls of the chute and head pulley are visible.
(Ex. P-6). The head pulley is 16 inches from the door opening. (Ex. P-6). The minimum
distance between the north dryer feed belt and the inside wall of the chute below the door is 12
inches. (Ex. P-7).

5. The north dryer feed belt is a slow moving belt. It travels at a rate of 3.56 feet per
second or 2.4 miles per hour. (Stip. 1O; Tr. 73).
6. The north dryer feed belt is 18 inches wide, which is the same width as the door
opening. (Tr. 115; Ex. P-5).
7. The pulley for the north dryer feed belt is wider than the belt itself and extends at least
two inches beyond the outside edge of the belt on each side. (Tr. 115-16).

8. The head pulley itself is smooth, with an exterior of half-inch machined rubber and
smooth recessed sides. (Tr. 116-17). The width of the gaps between the smooth ends of the head

1

Counsel for the Secretary designated his exhibits as "Petitioner's Exhibits," and I have
used this same designation in this decision.

30 FMSHRC 888

pulley and the inside walls of the chute are 3.75 inches on the north side and 4 inches on the
south side. (Stip. 11; Exs. P-11, P-12).
9. Molybdenum can be used as a lubricant and is a powdery substance that has the
consistency of graphite. (Tr. 140).
10. The head pulley, feed belt, and chute at issue in these cases are coated with
molybdenum material, making all of the surfaces inside the chute smooth and slippery. (Tr. 11,
56, 116, 119).
11. The door on the north dryer feed chute allows Henderson leach plant employees to
inspect the belt and clean molybdenum accumulations off the inside walls of the chute as needed.
This cleaning occurs, on average, three times per shift or six times in a 24-hour period. (Tr. 12,
17-19, 114). Molybdenum primarily accumulates two to three feet below the elevation of the
pulley. (Tr. 149, 186).
12. The practice of scraping molybdenum accumulations off the inside walls of the north
dryer feed belt has been occurring at the Henderson Mill since 1976, when the mill was built.
(Tr. 114). This cleaning generally occurs when the pulley is operating.
13. The door in the north dryer feed chute has been opened at least 50,000 times over a
30-year period while the pulley and belt were operating with no reports of injury as a result. (Tr.
113-14).
14. All employees are instructed to never "break the plane" of the opening of the door on
the chute with any body parts. They are also told that if they need to reach into the opening, the
Henderson Mill policy is that the belt is shut down and locked out. (Tr. 117).
15. When scraping molybdenum accumulations off the inside walls of the chute, Climax
employees use a scaling bar made of wood or metal that is between six and eight feet in length.
(Tr. 21-23. 124).
16. Climax employees have not engaged in the practice of scraping molybdenum off the
belt or the head pulley. (Tr. 80, 149). Employees only scrape the sides of the chute.
17. There is a permanently affixed scraper inside the chute that removes excess
molybdenum accumulations from the belt after it passes over the pulley. (Tr. 122-23).
18. The chute itself has no moving parts, except the head pulley, and there are no rollers,
skirting, controls, valves, or levers inside the chute. (Tr. 74, 158, 166).
19. When a new belt is installed, recessed stainless steel splices are used. Bolts are
installed at the splices and ground smooth before the belt is put into operation. (Tr. 27-28, 121).
30 FMSHRC 889

20. Steve Schake, Dean Schonlau, and Mike Birmingham have worked at the Henderson
Mill for 30, 27, and 28 years, respectively, all beginning employment in hourly positions. (Tr. 7,
103, 183). Mr. Schake is now a senior health and safety specialist at the Mill. (Tr. 103). Messrs.
Schonlau and Birmingham are both operations supervisors. (Tr. 7, 183).
21. Henderson Mill supervisors have been training employees on how to inspect and
clean the north dryer feed chute for over 28 years. (Tr. 113-14, 191). Schake, Birmingham, and
Schonlau never believed that they were putting employees at risk or exposing them to hazards by
having them inspect arid scrape the inside walls of the chute. (Tr. 125, 145, 191). Birmingham
and Schonlau have personally inspected and scraped the inside walls of the chute many times and
they never felt that they were in danger. (Tr. 144-45, 191).
22. Schonlau testified that he performed the task of scraping the north dryer feed chute in
the presence of an MSHA inspector about 25 years ago and that the inspector did not issue a
citation or instruct him to discontinue the practice. (Tr. 165-66, 177).
23. On February 23, 2007, Inspector Breland was at the Henderson Mill when he
observed that the door on the north dryer feed chute was open. (Tr. 162; Ex. C-9). Mr.
Schonlau, who accompanied the inspector, told him that he did not know who left the door open
or how long the door had been left open. (Tr. 44). It is Climax's policy to keep the door on the
chute closed to keep steam from the dryers contained. (Tr. 109-10).
24. fuspector Breland discussed the cleaning process with Schonlau, but he did not issue
any citation or indicate that any enforcement actions would be taken. (Tr. 162). The inspector
told Schonlau that the door should be kept closed, but Schonlau testified that he was not
instructed to stop performing visual inspections or stop scraping the sides of the chute with the
belt operating. (Tr. 163; Ex. C-9).
25. At the hearing, Inspector Breland testified that ifhe had observed anyone scraping
the sides of the chute while the belt was operating, he would have issued an imminent danger
order. (Tr. 46, 89).
26. Inspector Breland returned to the Henderson Mill on Monday, February 26, 2007. He
discussed the cleaning practice with Schake and Birmingham and he issued the two citations.
Climax rapidly abated both citations by installing a guard over the door opening.

III. DISCUSSION WITH FURTHER FINDINGS AND
CONCLUSIONS OF LAW
A. Citation No. 6315468.
Inspector Breland cited Climax for a violation of section 57;14112(b). That safety
standard provides that "[g]uards shall be securely in place while machinery is being operated,

30 FMSHRC 890

except when testing or ni.aking adjustments which cannot be performed without removal of the
guard." This safety standard is typically cited when a previously installed guard has not been
replaced or is otherwise missing. Jn this instance a door to a chute was open. The inspector
referred to this door as an "inspection/maintenance cover plate" in the citation. ·Climax did not
consider the door to be a guard, as that term is typically used in MSHA's safety standards. It did
not really function as a guard since it could be easily opened.
The Secretary argues that Climax violated the standard every time the door was kept open
while the conveyor was running. She argues that to find otherwise would defeat the purpose of
the standard by allowing entry to moving parts. Climax does not contend that it was testing or
making adjustments when the door was opened. The Secretary maintains that Climax's
argument that the door was not a guard is irrelevant. Whether or not the door functioned as a
guard, the standard plainly requires that an opening exposing moving machinery must be
guarded. It is undisputed that the opening was uncovered when Inspector Breland observed it.
She contends that the door is often left open. Since no guard was securely in place and the
machinery inside was operating, .Climax violated section 57 .14112(b).
Climax contends that the door to the chute was not a guard because it was not installed to
prevent injury to miners. The opening observed by Inspector Breland did not expose miners to a
reasonable possibility of injury. As a consequence, there was no requirement that the company
fit the opening with a guard and there was no violation of section 57.14112(b).
The safety standard cited by the inspector does not specifically require the installation of
guards and does not set forth criteria for the installation of guards. Was Climax required to
install a guard at the opening to the cited chute? To answer this question, the applicability of
section 57.14107, which sets forth criteria for the installation of guards, must be evaluated.
Section 56/~7.14017, entitled "Moving Machine Parts" provides that "[m]oving machine
parts shall be guarded to protect persons from contacting gears, sprockets, chains, drive, head,
tail, and takeup pulleys, flywheels, coupling, shafts, fan blades; and similar moving parts that can
cause injury." The issue is whether the door on the chute is required to be kept closed under this
safety standard to guard moving machine parts inside the chute.
There is no question that the head pulley in the chute is covered by 57.14107. An
important case discussing when moving machine parts must be guarded is Thompson Brothers
Coal Co., 6 FMSHRC 2094 (Sept. 1984). That case involved section 77.400(a), which is
substantially similar but not identical to section 56/57 .14107. The Commission held that in order
to establish a prima facie case, the Secretary of Labor must prove: "(1) that the cited machine
part is one specifically listed in the standard or is 'similar' to those listed; (2) that the part was
not guarded, and (3) that the unguarded part 'may be contacted by persons' and 'may cause injury
to persons.' " Id. at 2096. The Commission interpreted the third element of this test to
"contemplate a showing of a reasonable possibility of contact and injury including contact

30 FMSHRC 891

stemming from inadvertent stwnbling or falling, momentary inattention, or ordinary human
carelessness." Id. at 2097.
The safety standard must be interpreted to recognize that human behavior can be erratic
and unpredictable. Guards are designed to prevent miners from being injured by moving
machine parts especially at those times when they are not as focused on their jobs as they should
be. "Even a skilled employee may suffer a lapse of attentiveness, either from fatigue or
environmental distractions...." Great Western Electric Co., 5 FMSHRC 840, 842(May1983).
It is clear that the head pulley and accompanying belt are covered by the standard. It is
also clear that the pulley was not guarded when the door to the chute was open. What remains at
issue is whether the cited condition presented a reasonable possibility of contact and injury. For
the reasons discussed below, I answer that question in the affirmative.

Inspector Breland provided a number of examples of the hazards present when the door to
the chute is left open. The conveyor structure sits on an elevated platform. {Tr. 56; Exs. P-2, P9). There were low-hanging pipes around the chute as well as potential tripping hazards. (Ex. Pl O). If a miner were to trip and fall in the area when the door was open, his hands and arms
could enter the opening and strike the moving conveyor. Although I agree with Climax that the
belt moves at a relatively slow rate of speed, the movement of the belt could cause a miner's
hand or hands to slip down. (Tr. 53). A miner's hand could also slip up the belt due to the
slippery nature of the molybdenum on the belt. In either event, the miner's head or neck could
hit the frame around the door causing an injury. If a miner were to trip and fall in the area when
the door was closed, he still might injure himself. Indeed, Schonlau testified that, on more than
one occasion, he has hit his head on the low pipes in the area and has fallen down. (Tr. 28-29,
159-60; Ex. C-8). He hit his head on the side of the chute when he fell on one occasion.
I find that the Secretary established that the violation was S&S. A violation is classified
as S&S "if based upon the 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."
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1,
3-4(January1984), the Commission set out a four-part test for analyzing S&S issues. Evaluation
of the criteria is made assuming "continued normal mining operations." U.S. Steel Mining Co., 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. Texasgulf, Inc., 10 FMSHRC 498 (April
1988). The Secretary must establish: (1) the underlying violation of the safety standard; {2) a
discrete safety hazard, 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; The Secretary is not
required to show that it is more probable than not that an injury will result from the violation.
U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996).

30 FMSHRC 892

The Secretary established the first two elements of the S&S test, but whether the third
element was established is a closer question. Clearly, if someone were to trip and fall in front of
the chute, he could be injured even if the door to the chute were closed. As stated above, I
determined that, because the door on the chute was open, there was a "reasonable possibility" of
contact with the belt and pulley. The issue is whether there was a reasonable likelihood that the
hazard contributed to by the violation would have resulted in an injury. I find that the record
demonstrates that if a miner were to trip and fall while the door was open and he came in contact
with the moving machine parts it is reasonably likely that he would be injured. It is also
reasonably likely that the miner's injuries would be inore serious than if the door were closed
because his hands would likely slip on the moving conveyor which could cause his head to strike
the edge of the door opening. The belt is only 16 inches from this door opening. Any injury is
likely to be of a reasonably serious nature.

In reaching this conclusion, I have taken into consideration that it was company policy to
keep the door closed and that it was normally kept closed except when a miner was scraping the
inside walls of the chute. I have also taken into consideration the fact that no miner has ever
reported an injury involving contact with the head pulley.
It is important to understand that it is not very likely that, by merely touching the belt, the
miner would injure himself. Schake, Schonlau, and Birmingham all testified that the moving belt
would not injure a miner if he accidently came into contact with it, in part because it was covered
with molybdenum. {Tr. 121, 157, 191 ). I credit this testimony as well as the testimony that the
splice is relatively smooth. In addition, the pinch points were far enough from the opening that
contact with them was highly unlikely. {Tr. 117-18, 124). It would also be unlikely that anyone
would come in contact with the shaft (axle) for the pulley or get his hand caught between the
pulley and north or south walls of the chute. Finally, I reject the inspector's testimony that a
miner could get pulled into the opening of the chute or fall into this opening. The chance of that
happening is remot~ at best. The inspector also testified that a miner's head could get caught
between the conveyor as it travels around the pulley and the wall of the chute and he could then
be pulled down into the chute. It is practically inconceivable that such events could occur. As a
consequence, I reduce the gravity from "fatal" to "lost workdays or restricted duty." I base my
S&S finding on circumstances in which a miner trips, slips, or falls by the chute while the door is
open and his hand enters the door opening and slips on the moving belt.
I find that the negligence of the company was moderate. Climax has operated the leach
plant in the same manner for at least 28 years. It did not consider the door to the chute to be a
"guard," as that concept is set forth in the Secretary's safety standards. On the other hand,
Company policy was to keep the door closed except when necessary. Although the primary
purpose of this requirement was to contain the steam rising from the dryers, a reasonably prudent

30 FMSHRC 893

person would have recognized that it was also safer to keep the door closed. Climax does not
know who left the door open.2

B. Citation No. 6315469.
fuspector Breland also cited Climax for a violation of section 57.14105. That safety
standard provides, in part, that "[r]epairs or maintenance on machinery or equipment shall be
performed only after the power is off and the machinery or equipment is blocked against
motion." The inspector cited Climax because miners were cleaning the inside walls of the chute
with a scaling bar while the conveyor was in operation. He considered the violation to be an
unwarrantable failure because Climax has been using this hazardous workpractice for a long
period of time.
The Secretary argues that cleaning the buildup of molybdenum on the sides of the chute
constitutes "repairs or maintenance" as that phrase is used in the standard. She contends that the
plain language of the standard supports her position. fu addition, her interpretation of the
standard is reasonable and is therefore entitled to deference by the Commission.
Climax contends that the standard does not apply because scraping the sides of the chute
is cleaning rather than "repairs or maintenance," and, even if the standard applies, it was not
violated because the chute does not have any moving parts that can be blocked against motion.
The only moving parts were the pulley and belt. Those parts were not being repaired or
maintained so the standard does not apply.
The key phrase in the standard is "repairs or maintenance." The Commission discussed
this phrase in Walker Stone Co. Inc., 19 FMSHRC 48 (Jan 1997); affd 156 F.3d 1076 (10th Cir.
1998). fu that decision, the Commission held:
The term "repair" means "to restore by replacing a part or putting
together what is tom or broken: fix, mend ... to restore to a sound
or healthy state: renew, revivify .... " Webster's Third New
International Dictionary, Unabridged 1923 (1986). The tenn
"maintenance" has been defined as "the labor of keeping something
(as buildings or equipment) in a state of repair or efficiency: care,
upkeep ... " and "[p]roper care, repair, and keeping in good order."
Id. at 1362 ....

2

fu its brief, Climax argues that the citation should be vacated because it had not been
put on notice that the safety standard applied to the chute. I reject this argument. A reasonably
prudent person familiar with the mining industry and the protective purposes of the standard
would have recognized that the safety standard applied to this installation because of the presence
of the head pulley.
30 FMSHRC 894

Id. at 51. I find that scraping the sides of the chute with a bar does not fit within the definition of
repair. Whether it fits within the concept of "maintenance" is a closet issue. The term
maintenance is also defined as "[p]roper care, repair, and keeping in good order." Am.
Geological Institute, Dictionary ofMining, Mineral, and Related Terms 328 (2d ed. 1997).
Climax instructed its employees to clean the inside of the chute about three times a shift.
Because the molybdenum drops off the end of the belt and falls down to the augers below, it
tends to stick to the sides of the chute. By cleaning the sides of the chute, the employees are
arguably keeping the equipment in a" state of efficiency" or "in good order." It is clear,
however, that the chute was not clogged when employees used the scaling bar to clean the chute.
In addition, the belt was functioning and operating properly at all pertinent times.
In Walker Stone, a crusher stopped operating because it had become clogged with several
large rocks that stalled the engine for the crusher. Employees made several attempts to break or
remove the rocks. During this process, an employee jogged the rotor on several occasions by
pressing the start button on the engine with the clutch still engaged to see whether the impeller
would rotate. An employee was not in the clear one time that the rotor was jogged and he was
fatally injured as a result. MSHA issued a citation alleging a violation of section 56.14105. The
administrative law judge vacated the citation because breaking and removing large rocks did not
constitute repairs to or maintenance of the crusher. 17 FMSHRC ·600, 604-05 (April 1995). On
review, the Commission reversed the judge. The Commission reasoned that''the effect of
removing the rock was to eliminate the malfunctioning condition and enable the crusher to
resume operation" and that the work was included in the broad phrase "repairs or maintenance of
machinery or equipment." 19 FMSHRC at 51.
As stated above, the belt and pulley in the chute were not malfunctioning in this case. As
a consequence, Climax argues that the safety standard does not apply. The cleaning activities
performed by Climax employees were not performed because the feed chute had ceased to
operate due to a ma!function. Removal of the molybdenum that had stuck to the sides of the
chute was "not necessary for the north dryer feed chute to be able to process material." (C. Br.
16). The material is so fine that it would never clog up the chute. As a consequence, the
cleaning operation was not "maintenance" as that term is used in the standard.
The Secretary argues that the language of the standard should be interpreted broadly and
that the Commission recognized that fact in Walker Stone. The Secretary stated:
The Walker panel noted that actions should be considered repairs
or maintenance where they are "designed to prevent [machinery]
from lapsing from its existing condition or to keep [it] in good
repair" or where the action "preserve[d] the ability of the"
machinery to perform its function. Work is to be considered
repairs or maintenance where it is "performed to keep [the
machinery] in the same condition as the day before.... "

30 FMSHRC 895

(S. Br. 11) (citing 19 FMSHRC 52). Inspector Breland believed that, ifthe sides of the chute
were not cleaned, the accumulations would eventually build up and lessen the throughput and the
efficiency of the process. (Tr. 48).
Where the language of a regulatory provision is clear, the terms of that provision must be
enforced as they are written unless the regulator clearly intended the words to have a different
meaning or unless such a meaning would lead to absurd results. See Dyer v. United States, 832
F.2d 1062, 1066 (9th Cir. 1987); Utah Power & Light Co., 11FMSHRC1926, 1930 (Oct. 1989);
Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). It is only when the meaning is
ambiguous that deference to the Secretary's interpretation is accorded. See Udall v. Tallman, 380
U.S. 1, 16-17 (1965) (finding that the reviewing body must "look to the administrative
construction of the regulation if the meaning of the words used is in doubt") (quoting Bowles v.
Seminole Rock& Sand Co., 325 U.S. 410, 413-14 (1945)).
As always, the "language of a regulation ... is the starting point for its interpretation."
Dyer v. United States, 832 F.2d at 1066 (citing Consumer Prod. Safety Comm 'n v. GTE Sylvania,
Inc., 447 U.S. 102, 108 (1980)). In the absence of a statutory definition or a technical usage of a
term, the Commission applies its ordinary meaning. See, e.g., Thompson Bros. Coal Co., 6
FMSHRC 2091, 2096 (Sept. 1984). As applied to the facts presented in this case, I find that the
language of the standard is not clear. On one hand, by frequently cleaning the sides of the chute,
Climax was keeping the equipment in a " state of efficiency'' or "in good order." On the other
hand, the equipment was operating in the normal fashion and it was not malfunctioning or
otherwise out of order.
The Commission must give weight to the Secretary's interpretation of a safety standard
''unless it is plainly erroneous or inconsistent with the regulation." Akzo Nobel Salt, Inc., 212 F.
3d 1301, 1303 (D.C. Cir. 2000) (citation omitted). At least one circuit court has held that the
Secretary's litigating position before the Commission is also deserving of deference. RAG
Cumberland Res. LP, 272 F.3d 913, 920 (D.C. Cir 2001). As a consequence, the issue before me
is whether the Secretary's interpretation of the standard is a reasonable one that is consistent with
the standard's language and Commission precedent.
I hold that the Secretary's interpretation of the standard is reasonable and is consistent
with Commission precedent. Moreover, her interpretation is "consistent with the safety
promoting purposes of the Mine Act." Walker Stone, 156 F. 3d at 1082. Miners were instructed
to scrape molybdenum material off the inside walls of the chute about three times a shift for a
reason. In scraping material off the walls of the chute, the company was maintaining the chute
assembly by keeping it in good order. If the sides of the chute are not cleaned periodically, the
chute can get plugged up near the bottom where the auger screws pull the molybdenum into
dryers. (Tr. 19-20, 153-54). When that happens, miners sometimes beat on the sides of the chute
to knock material off. (Tr. 154). Ifit really gets plugged up, the machinery is shut down and
locked out so that miners can "beat on it, poke it, [and] clean it out probably within 30, 45
[minutes], maybe an hour." (Tr. 153). The company's witnesses testified that this procedure

30 FMSHRC 896

does not cause any production problems because Climax has a "secondary system" that can be
started up. When Schonlau was asked why the system is not shut doWn every time the sides of
the chute are scraped, he replied that it was ')ust a preference of the operator." (Tr. 154). He
also testified that the system could be locked out every time but that a safety hazard was not
created by keeping the conveyor operating. Id.
I find that Climax's practice of scraping the walls of the chute on a regular basis can
reasonably be characterized as a type of maintenance. It is similar to preventive maintenance in
the sense that, if the walls of the chute are kept free of accumulations, the molybdenum is less
likely to become plugged up at the bottom of the chute. By regularly scraping the sides of the
chute, Climax reduces the risk that it will need to spend 30 minutes to an hour cleaning out the
bottom of the chute.
Climax also argues that any maintenance was being performed on the chute, not on
machinery or equipment. Employees do not clean or scrape the conveyor, the pulley or any other
moving parts. The Secretary argues that the chute is an important part of the conveyor system.
She contends that the protection afforded by the safety standard extends to the chute between the
conveyor and the auger screws. I reject Climax's argument. The molybdenum product drops off
the end of the conveyor, falls down the chute, and is picked up by the screws at the bottom of the
chute. The chute is an integral part of the entire process; The Commission has held that miners
removing obstructions in chutes between belts are protected by section 75.1725(c), a similar
standard applicable to underground coal mines. Jim Walter Resources, Inc., 28 FMSHRC 983 ·
(Dec. 2006). In conclusion, I find that the Secretary established a violation of section 57.14105.
I find that the Secretary did not establish that the violation was S&S. Although a slight
hazard was created, it was not reasonably likely that the violation would contribute to an injury.
(Tr. 125). The miners used long straight rods to scrape the side of the chute. If a miner
happened to touch t,he moving conveyor with his bar, his hands would not be pulled into the
opening in the chute. It is extremely unlikely that the moving conveyor or pulley would grab the
bar and pull it into the chute. (Tr.148-49). Miners have been scraping the sides of the chute
while the conveyor was operating for almost 30 years without anyone reporting that they were
injured or otherwise pulled into the opening. As stated above, the conveyor moves at a slow rate
of speed and is slick with molybdenum. It would also be highly unlikely for the bar to get caught
between the ends of the pulley and the. walls of the chute because of the location of the pulley
within the chute. I reject the inspector's testimony wherein he stated that the bar could get
caught within the pinch points on the sides and it could "come back and strike [the miner] in the
head." (Tr. 56-57). Although perhaps such an event is possible, it is highly unlikely, in part,
because everything inside the chute is slick with molybdenum, including the pulley and the walls
of the chute.
The inspector further testified that:

30 FMSHRC 897

Also, while you are scaling, if you slipped and just kind of fell
down, the pressure of the bar hitting on the lip of the opening and
the bottom of the pulley would just suck the bar in, with the
miner's weight on it. As hwnans, our reaction is to hold on as
something is being yanked from us, so we also have a potential for
injury there.
(Tr. 57). Again, although I am not in a position to say that such a scenario is impossible, I find
that it is highly unlikely to occur given the facts in this case, as discussed above. Every potential
hazard in a mine is not S&S. In conclusion, I find that an injury was unlikely and that the
violation was only moderately serious. 3
Finally, I also find that the Secretary did not establish that the violation was the result of
the operator's unwarrantable failure to comply with the standard. Unwarrantable failure is
defined as aggravated conduct constituting more than ordinary negligence. Emery Mining Corp.,
9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct," "indifference," or the "serious lack of reasonable
care." Id. 2004-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC at 193-94. A number of
factors are relevant in determining whether a violation is the result of an operator's
unwarrantable failure, such as the extensiveness of the violation, the length of time that the
violative condition has existed, the operator's efforts to eliminate the violative condition,
whether an operator has been placed on notice that greater efforts are necessary for compliance,
the operator's knowledge of the existence of the violation, and whether the violation is obvious
or poses a high degree of danger. Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994);
Windsor Coal Co., 21FMSHRC997, 1000 (Sept. 1999); Consolidation Coal Co., 23 FMSHRC
588, 593 (June 2001).

It is true that the violation had existed for a long time but the operator had not been put on
notice that greater efforts were necessary to eliminate the violation. Indeed, Mr. Schonlau
testified that soon after the mill was built he scraped the sides of the chute while the belt was
operating in the presence of an MSHA inspector and no citations were issued. (Tr. 165-66, 177).
I find that Climax genuinely believed that its procedure for cleaning the sides of the chute
complied with the Secretary's safety standards. The fact that its belief was incorrect does not
establish aggravated conduct. I also conclude that the violation was not very obvious because the
company thought that its practices were safe. As stated above, the violation did not contribute to
a high degree of danger. Based on the above, I find that the company's negligence was low.
3

I concluded that the previous citation was S&S because, if the chute door were left open
while not in use, a miner walking or working in the area could slip, trip, or fall in such a way that
his hand or arms could enter the opening and strike the moving conveyor. When a miner scrapes
the sides of the chute, he stands in front of the door, opens it up, and then starts scraping the sides
with a rod. There is little likelihood that the miner will slip, trip, or fall in such a situation or
otherwise come in contact with the moving machine parts.
30 FMSHRC 898

IV. APPROPRIATE CIVIL PENAL TIES
Section l lO(i) of the Mine Act sets forth six criteria to be considered in detennining
appropriate civil penalties. Climax is a large mine operator and its parent company is also large.
The record shows that the Henderson Operations was issued about 227 citations and orders in the
24 months prior to February 26, 2007. (Ex. P-17). The vast majority of these were non-S&S
citations issued under section 104(a) of the Act. The two citations at issue in this case were
rapidly abated in good faith. .The penalties assessed in this decision will not have an adverse
effect on the operator's ability to continue in business. My gravity and negligence findings are
set forth above. Based on the penalty criteria, I find that the penalties set forth below are
appropriate.
V. ORDER
Based on the criteria in section l IO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
Citation No.

30 C.F.R. §

Penalty

WEST 2007-480-M & WEST 2007-330-RM
6315468

57.14112(b)

$400.00

WEST 2007-776-M & WEST 2007-333-RM
6315469

57.14105

$200.00

For the reasons set forth above, Citation No. 6315468 is MODIFIED by reducing the
gravity and Citation No. 6315469 is MODIFIED by deleting the unwarrantable failure and the
significant and substantial determinations made by the inspector so that the citation is now a
section 104(a) citation with low gravity and negligence. Climax Molybdenum Company is
ORDERED TO PAY the Secretary o.fLabor the sum of $600.00 within 30 days of the date of
this decision. Payment should be sent to: U.S. Department of Labor, Mine Safety and Health
Administration, P .0. Box 790390, St. Louis, MO 63179-0390.

Richard W. Manning
Administrative Law Judge
30 FMSHRC 899

Distribution:

Timothy S. Williams, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202 (Certified Mail)
Laura E. Beverage, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 802021958 (Certified Mail)

RWM

30 FMSHRC 900

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

August 28, 2008
DISCRIMINATION PROCEEDING

GABRIEL ROBLES,
Complainant,

Docket No. CENT 2008-115-DM
SC-MD-08-01

V.

Sugar Creek Plant
Mine ID 23-00158

LAFARGE NORTH AMERICA, INC.,
Respondent

DECISION
Appearances: Gabriel M. Robles, Kansas City, Missouri, pro se;
Christopher Peterson, Esq., Jackson Kelly, PLLC, Denver, Colorado, on behalfofthe
Respondent.
Judge Melick

Before:

This case is before me upon a complaint of discrimination filed by Mr. Gabriel Robles
pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq., the "Act", alleging that Lafarge North America, Inc. (Lafarge) terminated him purportedly
in violation of Section I 05(c)(1) ofthe Act. 1 LaFarge denies the allegations of unlawful termination
and, alternatively, seeks dismissal of the complaint on the grounds that the complaint was not filed·
within the time limits set forth in Section 105(c)(2) of the Act. For the reasons that follow, I find
that, indeed, the complaint must be dismissed for untimely filing.

1

Section 105(c)(1) provides as follows:

No person shall discharge or in any manner discriminate against or cause to be
discharged or cause discrimination against or otherwise interfere with the exercise of the
statutory rights of any miner, representative of miners or applicant for employment in any coal or
other mine subject to this Act, because such miner, representative of miners or applicant for
employment has filed or made a complaint under or related to the Act, including a complaint
notifying the operator or the operator's agent, or the representative of the miners at the coal or
other mine of an alleged danger or safety or health violation in a coal or other mine, or because
such miner, representative of miners or applicant for employment is the subject of medical
evaluations and potential transfer under a standard published pursuant to section 101 or because
such miner, representative of miners or applicant for employment has instituted or caused to be
instituted any proceeding under or related to this Act or has testified or is about to testify in any
such proceeding, or because of the exercise by such miner, representative of miners or applicant
for employment on behalf of himself or others of any statutory right afforded by this Act.
30 FMSHRC 901

Section 105(c)(2) provides that "any miner...who believes that he has been discharged,
interfered with, or otherwise discriminated against by any person in violation of this subsection may,
within 60 days after such violation occurs, file a complaint with the Secretary [of Labor] alleging
such discrimination...". The Commission has long held, however, that this 60-day limit is not
jurisdictional and a judge is required to review the facts on a case-by-case basis, taking into account
the unique circumstances of each situation in order to determine whether a miner's late filing should
be excused. Hollis v. Consolidation Coal Company, 6 FMSHRC 21, 24(January 1984), aff'd mem.
750 F.2d 1093 (D.C. Cir. 1984).
In this case there is no dispute that Mr. Robles' alleged protected activities occurred on
February 15, 2007 and/or February 16, 2007, and that he was "walked off the job" at the subject
mine thereby allegedly suffering discriminatory retaliation within one or two days thereafter. For
purposes of this decision, the alleged discriminatory acts therefore occurred no later than February
18, 2008. There is also no dispute that Mr. Robles' letter of complaint to the Department of Labor's
Mine Safety and Health Administration (MSHA)was dated September 26, 2007, or more than five
months after the 60-day deadline set forth in Section 105(c)(2).2
In his letter of complaint to MSHA dated September 26, 2007, Robles explained his late
filing as follows: "only because of my poverty am I only now able to relate or report this incident."
At hearings, Robles further explained that he did not file a timely complaint because he could not
afford the cost of postage needed to mail the complaint to MSHA.3 Robles also testified at hearings
however, that at the time his work at Lafarge ended he had been working for four days earning
$12.00 per hour plus overtime at $18.00 per hour. He also was apparently paid for this work by his
temporary agency "Labor Ready'' before his next shift would have commenced at Lafarge- presumably therefore on February 18, 2008. Robles further testified that, after being out ofwork for
a week, he got another job for about two weeks in "construction cleanup". It is therefore clear that
Robles had adequate funds to pay the postage to mail his complaint to MSHA. The credibility of
his testimony in this case is further diminished by his statement that he was able to pay five or ten
dollars for a telephone call at a time when he purportedly could not afford 39 or 41 cents for postage.
Under these circumstances, I am compelled to conclude that Robles' testimony- - including
his claim that he did not file his complaint within the statutory time period because he could not
afford the postage- -is not credible. I therefore also conclude that his late filing is not excusable and
that his complaint herein must be dismissed.

2

MSHA Form 2000-123 shows that the complaint was filed with MSHA on September
27, 2007.
3

Administrative notice may be taken on the fact that, during February 2007, the postal rate
for one ounce of first class mail was 39 cents and, as of May 14, 2007, was 41 cents.
30 FMSHRC 902

ORDER
Discrimination Proceeding Docket Number CENT 2008-115-DM is hereby dismissed.

~

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.

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/

Gary Melle
Administrative Law Judge
(202) 434-9977
Distribution: (Certified Mail)
Gabriel M. Robles, 115 N. W. Harlem Road, #207, Kansas City, MO 64116 (Distribution:
Certified Mail, First Class Mail)
Christopher Peterson, Esq., Jackson Kelly, PLLC, 1099 181h Street, Suite 2150, Denver, CO
80202 (Distribution: Certified Mail)
/lh

30 FMSHRC 903

30 FMSHRC 904

ADMINISTRATIVE LAW JUDGE ORDERS

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

August 28, 2008
JAMES BLEVINS, Owner and
MAVERICK MINING CO., LLC,
Contestants

CONTEST PROCEEDINGS
Docket No. KENT 2006-232-R
Order No. 7425414; 0111712006
Docket No. KENT 2006-233-R
Order No. 7425415; 01/17/2006

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

Mine ID: 15-18674

CIVIL PENALTY PROCEEDING
Docket No. KENT 2008-841
A.C. No. 15-18674-143259

v.
MAVERICK MINING CO., LLC,
Respondent

Mine: #1

ORDER
The parties are advised that Docket No. KENT 2008-841 is CONSOLIDATED for
hearing and decision with Docket Nos. KENT 2006-232-R and KENT 2006-233-R.
On January 10, 2006, a fatal accident occurred at Maverick Mining Company's #1 Mine
located in Pike County, Kentucky. MSHA investigated the accident and issued Order No.
7425414 and Order No. 7425415 on January 17, 2006. The Secretary issued the final Accident
Report on March 3, 2006. Thereafter, the company requested a 10-day conference which was
held on March 27, 2006. The company filed Notice of Contests on March 27, 2006, contesting
Order No. 7425414 (KENT 2006-232-R) and Order No. 7425415 (KENT 2006-233-R). The
Secretary filed her Answers on April 12, 2006. The contest cases were assigned to me on May
19, 2006, and I stayed them pending the assessment of the civil penalties for the violation of 30
C.F.R. § 75.220(a)(l) alleged in Order No. 74525414 and the violation of30 CF.R. §
75.362(a)(l) alleged in Order No. 7425415. The two alleged violations were assessed civil

30 FMSHRC 905

penalties by MSHA on March 7, 2008. The company contested the penalties on March 25, 2008,
and the Secretary filed her Petition for Assessment with the Commission on May 9, 2008 (KENT
2008-841). In the petition, the Secretary proposed civil penalties of $20,500 for each of the
alleged violations.
The company now moves to dismiss the civil penalty proceeding contending the
Secretary did not propose the civil penalty within a reasonable time as is required under Section
105(a) of the Mine Act. 1 The company notes approximately 24 months passed between the date
of the Accident report and assessment.
As Administrative Law Judge Jerold Feldman explained in Wabash Mine Holding Co., 27
FMSHRC 672, 685-686 (Oct. 2005):
The statutory scheme authorizing the Secretary's imposition of a civil penalty is a major
means by which operator compliance is achieved. The purpose of section 105(a) is to
encourage operator compliance through timely penalty proposals rather than to create an
escape mechanism through which an operator can avoid payment. The legislative history
of section 105(a) explains, there may be circumstances, although rare, when prompt
proposal of a civil penalty may not be possible, and the [Senate] Committee does not
expect that the failure to propose a penalty with promptness shall vitiate any proposed
penalty proceeding." S. Rep. No. 95-181, at 34, reprinted in Legis. Hist. at 622.
The company argues that the 24 month delay in assessing the penalty is not reasonable
under section 105(a) and the penalties should be vacated. The company asserts that the decision
of the United States Court of Appeals for the District of Columbia Circuit in Secretary ofLabor
v. Twentymile Coal Co., 411F.3d256 (D.C. Cir. 2005) allows the Commission the discretion to
vacate penalties which have been unreasonably and unjustifiably delayed based on the individual
circumstances of the case. 2 Company's Reply at 3; Secretary ofLabor v. Twentymile Coal Co.,
411 F.3d 256 (D'.C. Cir. 2005).

1

Section105(a) of the Mine Act provides:

If, after an inspection or investigation, the Secretary issues a citation or order
under section 104, [s]he shall, within a reasonable time after the termination
of such inspection or investigation, notify the operator ... of the civil penalty
proposed ....
2

In Twentymile, the Court reversed the Commission's holding a proposed penalty
assessment was not issued within a reasonable time, and did not address the Secretary's position
the Commission was legally barred from vacating an untimely filed penalty. The Court's
conclusion the penalty assessment was not untimely was based on traditional reasonableness
grounds.
30 FMSHRC 906

I agree with the company's reading of the decision. Nor am I alone in my view. As the
company notes, the Commission's Chairman has reached a similar conclusion. ·See 411 F .3d at
266. Therefore, I find the practical effect of the court's decision is to leave standing the
Commission's traditional framework for resolving ''timeliness" issues:
[T]he requirement in section 105(a) that the Secretary propose a penalty assessment
'within a reasonable time' does not impose a jurisdictional limitations period. Rather, in
cases of delay ... [the Commission has] examined whether adequate cause existed for the
... delay .... [and] whether the delay prejudiced the operator. Twentymile Coal Co., 26
FMSHRC 666, 682 (August 2004) (citations omitted).
The Secretary attributes the delay to "misunderstanding of assessment procedures and
inadvertence by the Secretary's counsel." See's. Response at 2. The company claims to have
suffered prejudice by the delay as the mine closed shortly after the accident happened in January
2006. The company states it only knows the location of one of the witnesses who was
underground when the accident occurred and that after 2 Yi years after the accident witnesses will
have difficulty recalling the details of the events. Company's Reply at 4. However, the Secretary
argues the company has not been prejudiced. She notes the company has been represented by
counsel since the proceedings began.
Thus, the questions before me are whether the Secretary established adequate cause for
the delay and if so, whether the company established it has been fatally prejudiced. The contest
proceedings at issue here were originally part of a group of four contests treated as a unit by the
Commission. Two of the contested orders (Docket Nos. KENT 2006-230-R and KENT 2006231-R) were issued to alleged mine operator, James Blevins, while the orders at issued in this
proceeding (Order No. 7425414 and Order No. 7425415) were issued to the company.
Subsequently, the Secretary moved to amend Order No. 7425414 and Order No. 7425415 to
include James Blevins as an operator. I granted the motion on December 13, 2006, and I ordered
the Secretary to modify the orders and serve them on Mr. Blevins. I also amended the caption in
KENT 2006-232-R and KENT 2006-233-R to read: James Blevins, Owner and Maverick Mining
Co. v. Secretary ofLabor, Mine Safety and Health Administration. I further noted while counsel
for Mr. Blevins and the company did not object to the motion, counsel continued to maintain that
Mr. Blevins could not legally and factually be cited as an operator in the proceeding. Order
(December 13, 2006).

In a letter dated January 4, 2007, counsel for the Secretary advised me the orders had been
modified and served on Mr. Blevins and his counsel. Counsel for the Secretary asked that
Docket Nos. KENT 2006-230-R and KENT 2006-231-R, contests filed solely by Mr. Blevins, be
dismissed as moot. (The orders contested in KENT 2006-230-R and KENT 2006-231-R were
based on the same allegations as the orders contested in Docket Nos. KENT 2006-232-R and
KENT 2006-233-R.) I granted counsel's request on January 18, 2007 and dismissed KENT
2006-230-R and KENT 2006-231-R. Also, I stated "[T]he contests in KENT 2006-232-R and
KENT 2006-233-R are deemed to have been filed by both James Blevins and Maverick Mining
30 FMSHRC 907

Co., and James Blevins is recognized as a contestant [in Docket Nos. KENT 2006-232-R and
KENT 2006-233-R.]" Severance and Dismissal (January 18, 2007).
Counsel for the Secretary states following the Secretary's amendment of the orders to
show Maverick Mining Co., as an operator and James Blevins as a co-operator, counsel
"assumed .... [MSHA's] Office of Assessments would automatically begin the usual procedures
leading to the assessment [of the violations alleged in] the two orders." See's Response, Exh.
Al. Counsel states his assumption was mistaken and as a result he inadvertently failed to
monitor the assessment procedures. Id. at 2.
Counsel for the Secretary is highly competent and conscientious. Certainly, counsel's
belief the modifications would begin the procedures leading to assessments was a reasonable
one. Citations and orders alleging violations of mandatory standards and modifications of the
citations and orders are routinely sent to MSHA's assessment office by the inspectors who issue
the enforcement actions or by personnel in the inspectors' offices without input from or
intervention by the Secretary's counsel. Although this did not happen after the modification of
Order No 7425414 and Order No. 7425414, it was reasonable for the Secretary's counsel to
assume it would.
Moreover, I am not persuaded by the company's claim of prejudice. As counsel for the
Secretary points out, the company has been represented by counsel from the earliest stages of
MSHA's investigations and that representation has continued to the present time. Certainly, the
company had the opportunity to interview those of its employees who had knowledge of the
events in question and to take their sworn statements .. Moreover, the company has not shown it
has actually tried to find the potential witnesses and is unable to do so.3
Therefore, the company's Motion to Dismiss is DENIED and the cases will be heard as
scheduled November 18, 2008, in Pikeville, Kentucky. A specific hearing site will be designated
at a later date.

3

Since Mr. Blevins' arguments regarding the validity of the orders and the inspector's
findings are identical to the company's and because Mr. Blevins is represented by the same
counsel as the company, my reasoning regarding adequate cause and lack of prejudice applies to
him as well as to the company.

30 FMSHRC 908

Counsels are asked to note this order bears the correct caption for these cases. Within 15
days of the date of this order, counsel for the Secretary is ordered to file an explanation of the
Secretary's position regarding Mr. Blevins and the civil penalty proceeding that is a part of these
consolidated cases. While Mr. Blevins is a contestant in Docket No. KENT 2006-232-R and
KENT 2006-233-R, the Secretary never has moved to amend the civil penalty petition to include
Mr. Blevins as a Respondent. Any motion the Secretary files to this effect should clearly state
the facts and reasons upon which Mr. Blevins alleged penalty liability or co-liability is based.

__j)tA/;df4z/~
David F. Barbour
Administrative Law Judge

Distribution: ·
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456
Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd. East, P.O. Box 273,
Charleston, WV 25321

/sf

30 FMSHRC 909

30 FMSHRC910
G:O< U.S. GOVERNMENT PRINTING OFFICE: 2008-340-005/62704