MARCH AND APRIL 2008

COMMISSION DECISIONS
04/04/2008
04/04/2008
04/04/2008
04/04/2008
04/04/2008
04/04/2008
04/04/2008
04/04/2008
04/04/2008
04/09/2008
04/09/2008
04/09/2008
04/10/2008
04/10/2008
04/10/2008
04/10/2008
04/21/2008
04/2112008
04/25/2008
04/25/2008
04/30/2008
04/30/2008
04/30/2008
04/30/2008
04/30/2008

Thomas Torrance emp. by Buzzi Unicem, USA
Cloverlick Coal Company, LLC.
Panther Mining, LLC.
Pederson Brothers, Inc.
Pederson Brothers, Inc.
Cemex, Inc.
Little Buck Coal Company
Twentymile Coal Company
Bandmill Coal Corporation
LaFarge North America, Inc.
Calmat Company d/b/a Vulcan Materials
Interwest Construction & Development Inc.
Quality Coal Company, Inc.
U.S. Silica Company
Le Sueur-Richmond Slate Corp.
Iron Mountain Quarry, LLC.
Wabash Mine Holding Company
Alex Energy, Inc.
ICG Hazard, LLC.
Currituck Sand, Inc.
CW Electric
Road Fork Development Co.
Clean Energy Mining Co.
Long Fork Coal Company
Consolidation Coal Company

CENT 2008-123-M
KENT 2008-256
KENT 2008-257
LAKE 2008-60-M
LAKE 2008-61-M
PENN 2008-98-M
PENN 2008-132
WEST 2008-257
WEVA 2008-288
WEST 2008-311-M
WEST 2008-312-M
WEST 2008-313-M
SE 2008-278-M
VA 2008-81-M
VA 2008-89-M
WEST 2008-350-M
LAKE 2008-268
WEVA 2008-505
KENT 2008-661
SE 2008-279-M
KENT 2008-494
KENT 2008-512
KENT 2008-538
KENT 2008-633
WEVA 2008-600

Pg. 155
Pg. 158
Pg. 161
Pg. 164
Pg. 167
Pg. 170
Pg. 174
Pg. 177
Pg. 180
Pg. 183
Pg. 186
Pg. 189
Pg. 192
Pg. 195
Pg. 198
Pg. 201
Pg.204
Pg.207
Pg. 210
Pg.214
Pg. 217
Pg.220
Pg.224
Pg. 228
Pg.232

WEST 2006-524-M
WEVA 2007-132
CENT 2006-178-M
CENT 2006-184-M

Pg. 235
Pg.237
Pg.254
Pg.324

SE

Pg.341

ADMINISTRATIVE LAW JUDGE DECISIONS
03/07/2008
03/25/2008
04/07/2008
0413012008

Gordon Sand Company
McElroy Coal Company
Nelson Quarries, Inc. (w/corrections)
Jeppesen Gravel

ADMINISTRATIVE LAW JUDGE ORDERS
0313112008

SCP Investments, LLC.

i

2006-148-M

MARCH AND APRIL 2008

There were no cases in which REVIEW was either granted or denied.

ii

COMMISSION ORDERS

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

April 4, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. CENT 2008-123-M
A.C. No. 14-00162-122958 A

v.
THOMAS TORRANCE, employed by
BUZZI UNICEM, USA

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On December 4, 2007, the Commission received from
Thomas Torrance {"Torrance") a motion by counsel seeking to reopen a penalty assessment
against Torrance under section llO(c) of the Mine Act, 30 U.S.C. § 820(c), 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 the Commission's Procedural Rules, an individual charged under section 110(c)
has 30 days following receipt of the proposed penalty assessment within which to notify the
Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.
On July 23, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to Torrance, alleging that he was personally
liable under section 110(c) of the Mine Act for an order issued to his employer, Buzzi Unicem,
USA. fu his motion and accompanying affidavit, Torrance asserts that he mailed the form
contesting the penalty on August 18, 2007. Nevertheless, Torrance received a delinquency notice
from MSHA in early November 2007, and according to Torrance, MSHA states that it never
received the notice of contest form. Torrance maintains that the assessment never became a final
order, but that if it is deemed to have become one, the proceeding should be reopened so that
30 FMSHRC 155

Torrance can contest the penalty and underlying citation. The Secretary does not oppose
reoperung.
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 Torrance's request, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether Torrance failed to timely
contest the penalty proposal and, if so, whether good cause exists for granting relief from the
final order. If Torrance timely contested the penalty, or if it is determined that he did not but 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.

30FMSHRC 156

Distribution:
Gregory C. Ruffennach, Esq.
1629 K Street, N .W.
Suite 300
Washington, D.C. 20036
Myra J runes, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., Room 25th Floor
Arlington, VA 22209-3939
W. Christian Schuman, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd.
22nd Floor West, Room 2220
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 157

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

April 4, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. KENT 2008-256
AC. No. 15-18241-126999

v.
CLOVERLICK COAL COMPANY LLC

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

§ 801 et seq. (2000) ("Mine Act"). On December 6, 2007, the Commission received a letter
requesting that the Commission reopen a penalty assessment issued to Cloverlick Coal Company
LLC ("Cloverlick") 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). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On September 12, 2007, the Department of Labor's Mine Safety and Health
Administration issued Assessment No. 000126999, which proposed penalties for 34 citations that
had previously been issued to Cloverlick. The operator states that it did not receive the
assessment form until October 30, 2007. A handwritten note on the copy of the assessment
attached to Cloverlick's letter appears to suggest that the operator returned the form on or about

1

The letter also requested reopening of an assessment issued to an affiliated company,
Panther Mining LLC. That request is the subject of a separate order issued today in Docket No.
KENT 2008-257.
30FMSHRC 158

November 2, indicating its desire to contest 11 of the proposed penalties. The Secretary states
that she does not oppose Cloverlick'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. 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 Cloverlick's request, in the interests ofjustice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether Cloverlick's contest was
timely and, if it was not timely, whether good cause exists for granting relief from the final order.
If Cloverlick's contest was timely, or if it is determined that it was not but 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.

30 FMSHRC 159

Distrubution:
Larry A. Coeburn, Safety Coordinator
Cloverlick Coal Company, LLC.
P.O. Box 2560
Wise VA 24293
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
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 22209-2296
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 160

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

April 4, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. KENT 2008-257
A.C. No. 15-18198-127066

v.
PANTHER MINING LLC

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On December 6, 2007, the Commission received a letter
requesting that the Commission reopen a penalty assessment issued to Panther Mining LLC
("Panther") 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). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On September 12, 2007, the Department of Labor's Mine Safety and Health
Administration issued Assessment No. 000127066, which proposed penalties for 80 citations that
had previously been issued to Panther. The operator states that it did not receive the assessment
form until October 23, 2007. In response, the Secretary states that she does not oppose Panther's
request to reopen. She also forwarded to the Commission a copy of the assessment she received
from Panther indicating the operator's desire to contest 35 of the proposed penalties, and which
1

The letter also requested reopening of an assessment issued to an affiliated company,
Cloverlick Coal Company LLC. That request is the subject of a separate order issued today in
Docket No. KENT 2008-256.
30 FMSHRC 161

includes a handwritten note that appears to suggest that the operator returned the form on or
about October 29.
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).
Having reviewed Panther's request, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether Panther's contest was timely
and, if it was not timely, whether good cause exists for granting relief from the final order. If
Panther's contest was timely, or if it is determined that it was not but 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

30 FMSHRC 162

Distribution:
Larry A. Coeburn, Safety Coordinator
Panther Mining, LLC.
P.O. Box 2560
Wise, VA 24293
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 163

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

April4,2008

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

Docket No. LAKE 2008-60-M
A.C. No. 21-00071-128120

v.
PEDERSON BROTHERS, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On November 20, 2007, the Commission received from
Pederson Brothers, Inc. ("Pederson") a motion by counsel 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 December 5, 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a citation to Pederson. On October 3, 2007, as a result of the citation, MSHA
issued a proposed assessment of $838. Pederson states that the proposed assessment was
forwarded to its counsel, who was traveling at the time the assessment was received at her office.
Pederson further states that counsel's office staff, through clerical error, placed the proposed
assessment in the wrong file and that counsel did not discover the error until November 14, 2007.
Pederson states that it had always intended to contest the citation and penalty. The Secretary
does not oppose the request to reopen the proposed assessment.

30 FMSHRC 164

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).
Having reviewed Pederson'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
Pederson'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.

30 FMSHRC 165

Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
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 166

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

April 4, 2008

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

Docket No. LAKE 2008-61-M
A.C. No. 21-00071-123814

v.
PEDERSON BROTHERS, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On November 20, 2007, the Commission received from
Pederson Brothers, Inc. ("Pederson") 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 December 5, 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued six citations to Pederson. In its motion, Pederson states that, on April 4, 2007,
it filed a change in legal identity with MSHA that included a change in the company's legal
address from one state to another. Sometime in August 2007, MSHA issued proposed penalties
in connection with the citations but mistakenly mailed them by certified mail to Pederson's old
address. Pederson further states in its motion that there was no one at the old address who could
sign for the mail and forward it to the new address. On November 1, 2007, when MSHA sent
Pederson a letter by first class mail, demanding payment in full for the proposed penalties, that
letter was forwarded to Pederson's new address. Pederson states that it always had intended to

30 FMSHRC 167

contest the citations and penalties. The Secretary does not oppose the request to reopen the
proposed 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
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 Pederson'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
Pederson' 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.

30 FMSHRC 168

Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4 740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
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 169

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

April 4, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. PENN 2008-98-M
A.C. No. 36-00165-125280

V.

CEMEX, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On November 30, 2007, the Commission received from
Cemex, Inc. ("Cemex") a motion made by counsel to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In June 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued citations to Cemex. On August 31, 2007, Cemex received a proposed
assessment as a result of the citations that previously had been issued. Cemex states that the
proposed assessment was addressed to its plant manager, who forwarded the assessment to its
safety director. Cemex further states that its safety director was out of the office on travel during
most of August, September, and October and that he was unaware of the assessment until
sometime in October 2007. Cemex's safety director then sent a request for a hearing on the

30 FMSHRC 170

proposed penalties, which MSHA denied because the request was untimely. The Secretary states
that she does not oppose Cemex' s request to reopen the proposed penalty assessment. 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

In the letter in which she states that she does not oppose the reopening of the penalty
assessment, the Secretary requests that Cemex clarify which of the proposed penalties and
associated citations are to be reopened because Cemex checked only one penalty on the
assessment form but, in addition, also checked a box on the form indicating that it wanted to
contest aII violations.

30 FMSHRC 171

Having reviewed Cemex' s motion, in the interests of justice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for Cemex'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.

30 FMSHRC 172

Distribution:
Fracina M. Segbefia, Esq.
William K. Doran, Esq.
Ogletree, Deakins, Nash, Smoak
& Stewart, P.C.,
2400 N Street NW, 5'h Floor
Washington, DC 20037
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 22th 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 173

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

April4,2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. PENN 2008-132
A.C. No. 36-08299-130703
Docket No. PENN 2008-142
AC. No. 36-08299-123747

v.
LITTLE BUCK COAL COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On December 28, 2007, the Commission received from Little
Buck Coal Company ("Little Buck") a motion made by counsel to reopen two penalty
assessments that had become final orders of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On May 23, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued six citations and orders to Little Buck. The operator subsequently filed timely
contests of each citation and order, and those contests are pending in Docket Nos. PENN 2007267-R through PENN 2007-272-R. MSHA later issued Proposed Assessment No. 000123747,
which proposed a penalty for one of the citations, and Proposed Assessment No. 000130703,
which proposed penalties for the other five citations and orders.

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby consolidate
docket numbers PENN 2008-132 and PENN 2008-142, both captioned Little Buck Coal Co., and
both involving similar procedural issues. 29 C.F.R. § 2700.12.
30FMSHRC 174

Little Buck states that it believed it had forwarded the proposed assessments to the
outside counsel representing it in the related contest proceedings. When that counsel learned
from opposing counsel in the contest proceedings that neither of the proposed assessments had
been contested within the applicable 30-day periods, she alerted Little Buck of its failure to
forward the assessments. The Secretary states that she does not oppose Little Buck's request to
reopen the proposed penalty 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).
Having reviewed Little Buck's motion, in the interests of justice, we remand this matter
to the Chief Administrative Law Judge for a determination of whether good cause exists for
Little Buck'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.

30 FMSHRC 175

Distribution:
Diana R. Schroeher, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, 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 176

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

April 4, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2008-257
AC. No. 05-03836-123538

v.
TWENTYMILE COAL COMP ANY

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On December 10, 2007, the Commission received from
Twentymile Coal Company ("Twentymile") a letter requesting that the Commission reopen a
penalty assessment that had become a final order of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On 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.
Twentymile states 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. Twentymile requests
reopening so that it can contest the other seven penalties. The Secretary states that she does not
oppose Twentymile' s request to reopen.

30 FMSHRC 177

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, 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).
While Twentymile's request for relief addresses the mistake that led to the late payment
of the uncontested penalties, it does not explain the company's separate failure to return the
assessment form to MSHA in order to contest the seven penalties that it states it intended to
contest. Consequently, we deny Twentymile's request without prejudice. See Marsh Coal Co.,
28 FMSHRC 473, 475 (July 2006).

\

30 FMSHRC 178

/

Distribution:
Lisa French, Safety Assistant, Peabody Energy/ Twentymile Coal Co., 29515 Routt County Rd.,
#27, Oak Creek, CO 80467
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 179

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

April 4, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2008-288
A.C. No. 46-05086-124355

v.
BANDMILL COAL CORPORATION

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On December 7, 2007, the Commission received from
Bandmill Coal Corporation ("Bandmill") 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 August 8, 2007, the Department of Labor's Mine Safety and Health Administration
issued Proposed Assessment No. 000124355 to Bandmill, proposing penalties for a citation and
three orders that previously had been issued to the company. Bandmill's safety director states
that he meant to forward the assessment to Bandmill's outside counsel handling the pending
contests of the three orders so that the penalties for the three orders could also be contested. He
further states that instead he mistakenly included the assessment with two other assessments
issued to an affiliated company which he had telecopied to different outside counsel representing
the affiliate. Outside counsel for the affiliate states that he assumed that counsel for Bandmill
also received the forwarded assessment meant for that firm, but the firm did not. The Secretary
states that she does not oppose Bandmill 's request to reopen the proposed penalty assessment.
30 FMSHRC 180

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 Bandmill 's motion, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Bandmill' 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.

'·

30 FMSHRC 181

Distribution:
Jason M. Nutzman., Esq.
Dinsmore & Shohl, LLP,
P.O. Box 11887,
900 Lee Street,
Suite 600,
Charleston, WV 25339
W. Christian Schumann, Esq.,
Office of the Solicitor,
U.S. Department of Labor,
1100 Wilson Blvd., Room 2220,
Arlington, VA 22209-2296
Myra James,
Chief,
Office of Civil Penalty Compliance,
MSHA,
U.S. Dept. Of Labor,
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 182

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

April 9, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2008-311-M
A.C. No. 45-00805-130676

V.

LAFARGE NORTH AMERICA, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On January 7, 2008, the Commission received from Lafarge
North America, Inc. ("Lafarge") a motion 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).
Over a period of several days in September 2007, the Department of Labor's Mine Safety
and Health Administration ("MSHA") issued eleven citations to Lafarge. On November 1, 2007,
MSHA issued a proposed penalty assessment for the citations. Lafarge states that it contested the
penalties on December 12, 2007, and believed it had timely filed the contest. However, it
subsequently received correspondence from MSHA stating that the proposed penalty had become
a final order on December 8, 2007. Lafarge adds that, due to an internal mistake and confusion
as to the date ofreceipt of the proposed assessment form, the form was not processed in a timely
manner. The Secretary states that she does not oppose Lafarge's request for relief.

30 FMSHRC 183

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"). ill 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 Lafarge' s motion, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Lafarge' 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.

30 FMSHRC 184

Distribution:
Karen L. Johnston, Esq.
Jackson Kelly PLLC,
1099 l8 1h Street,
Suite 2150,
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor,
U.S. Department of Labor,
1100 Wilson Blvd.,
Room2220,
Arlington, VA 22209-2296
Myra James,
Chief,
Office of Civil Penalty Compliance,
MSHA,
U.S. Department of Labor,
1100 Wilson Blvd.,
25th Floor West,
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 185

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

April 9, 2008

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

Docket No. WEST 2008-312-M
A.C. No. 04-01924-128052

V.

CALMAT COMPANY, d/b/a
VULCAN MATERIALS COMPANY,
WESTERN DNISION

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On January 7, 2008, the Commission received from Calmat

Company, d/b/a/ Vulcan Materials Company, Western Division ("Vulcan") a letter from counsel
seeking to reopen a penalty assessment that had become a final order of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On October 3, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment, A.C. No. 000128052, to Vulcan for an order
and a citation. Vulcan states that it inadvertently sent the form contesting the penalty assessment
to MSHA's local Western District office in Vacaville, California, instead of to the MSHA office
located in Arlington, Virginia. Vulcan attached the return receipt allegedly indicating that the

30 FMSHRC 186

notice of contest was received by MSHA at its office in Vacaville. The Secretary states that she
does not oppose Vulcan's request to reopen the 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 (May 1993) ("JWR"). In evaluating requests to
reopen final section lO~(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 Vulcan'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 Vulcan'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.

30 FMSHRC 187

Distribution:
Scott H. Dunham, Esq.,
O'Melveny & Myers, LLP,
400 South Hope Street,
Los Angeles, CA 90071-12899
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 188

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

April 9, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2008-313-M
A.C. No. 45-03415-124697

v.
INTERWEST CONSTRUCTION &
DEVELOPMENT, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On January 9, 2008, the Commission received from Interwest
Construction & Development, Inc. ("Interwest") a petition (which the Commission shall treat as
a motion) 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 August 9, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued to Interwest the proposed penalty assessment at issue. The company asserts
that it sent the form to MSHA on or about August 20, 2007, indicating that it wished to contest
the proposed penalties. However, it subsequently learned from MSHA that the agency did not
receive Interwest's contest and that Interwest was delinquent in its payment of the penalties listed
in the proposed assessment. The Secretary of Labor states that she does not oppose Interwest's
request for relief.

30 FMSHRC 189

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 Interwest'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
Interwest' s apparent 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.

30 FMSHRC 190

Distribution:
Michael T. Heenan, Esq.,
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.,
2400 N Street NW, 5th Floor,
Washington, DC 2003 7
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 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 191

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

April 10, 2008

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2008-278-M
AC. No. 01-03195-128840

v.
QUALITY COAL COMPANY, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On January 28, 2008, the Commission received from Quality
Coal Company, Inc. ("Quality") a request 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 October 11, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment, No. 000128840, to Quality. In its request,
Quality states that it subsequently received a second proposed penalty assessment, No.
000128844. Quality explains that its mining foreman, who received the penalty proposals,
erroneously believed that Quality could contest both proposed penalty assessments within 30
days of the second assessment. Quality submits that the second proposed penalty assessment was
timely contested and is the subject of Docket No. SE 2008-131. The operator further states that
Proposed Assessment No. 000128840 had been routed incorrectly among its personnel. The
Secretary states that she does not oppose Quality's request for relief.

30 FMSHRC 192

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 Quality's motion, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Quality'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.

30 FMSHRC 193

Distribution:
Hubert G. Taylor, Esq.
Leitman, Siegal & Payne, P.C.
600 North 20th St., Suite 400
Birmingham, AL 35203
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-20 21

30 FMSHRC 194

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

April 10, 2008

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

Docket No. VA 2008-81-M
A.C. No. 44-02829-119439

U.S. SILICA COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On January 18, 2008, the Commission received a letter from
U.S. Silica Company ("U.S. Silica") requesting that the Commission reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On June 5, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment, A.C. No. 000119439, to U.S. Silica. U.S.
Silica states that it mailed its contest of the proposed penalty assessment to MSHA, but that it
appears that the contest was never received. The Secretary responds that she has no record that
the penalty contest form was received by MSHA's Civil Penalty Compliance Office, but that she
does not oppose U.S. Silica's request to reopen the penalty assessment.

30 FMSHRC 195

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 U.S. Silica'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 U.S.
Silica'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.

30 FMSHRC 196

Distribution:
Cris Bryan, CMSP
U.S. Silica Company
P.O. Box 187
Berkeley Springs, WV 25411-0187
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 197

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

April 10,2008

SECRETARY OF LABOR,
MlNE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 2008-89-M
AC. No. 44-00061-129587

v.
LE SUEUR-RICHMOND SLATE CORP.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On January 29, 2008, the Commission received from Le
Sueur-Richmond Slate Corp. ("Le Sueur") a letter 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 October 18, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Penalty Assessment No. 000129587 to Le Sueur. Le Sueur states
that, after the proposed assessment was delivered, the employee who signed for the delivery
became ill, her work load decreased, and the proposed assessment was never presented to the
operator's officers. The Secretary states that she does not oppose Le Sueur'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) under
30 FMSHRC 198

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 Le Sueur'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 Le
Sueur'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

30 FMSHRC 199

Distribution:
David P. Mitchel, Esq.
Michael J. Brickhill, P.C.
1890 Church St.
P.O. Box 2218
Appomattox, VA 24522
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 200

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

April 10,2008

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2008-350-M
A.C. No. 45-03175-127980

v.
IRON MOUNTAIN QUARRY, LLC

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

§ 801 et seq. (2000) ("Mine Act"). On January 23, 2008, the Commission received from Iron
Mountain Quarry, LLC ("Iron Mountain") a letter 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 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 October 30, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued proposed penalty assessment No. 000130280 to Iron Mountain proposing civil
penalties for six citations that had been issued to Iron Mountain on August 23, 2007. Iron
Mountain asserts that it timely contested those proposed penalties. The operator states that it
subsequently received a notice from MSHA stating that Iron Mountain was delinquent in paying
the civil penalty associated with proposed penalty assessment No. 000127980. The operator
states that, upon further investigation, it discovered that Penalty Assessment No. 000127980 set
forth a proposed civil penalty for Citation No. 7981307, also issued on August 23, 2007. It
submits that it intended to contest Citation No. 7981307 but that it has no record of having
received Proposed Assessment No. 000127980. Iron Mountain explains that if it had, in fact,
received the proposed penalty assessment, its failure to contest the penalty associated with
30 FMSHRC 201

Citation No. 7981307 was due to a mistake. The Secretary states that she does not oppose Iron
Mountain's request to reopen. For clarity, the Secretary attached a copy of Proposed Assessment
No. 000127980 (dated October 2, 2007), and a tracking report showing delivery.
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) 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 Iron Mountain'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 Iron Mountain'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.

30 FMSHRC 202

Distribution:
Paul M. Nordsletten, Esq.
Davis, Grimm, Payne & Marra,
701 Fifth Ave., Suite 4040
Seattle, WA 98104
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 203

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

April21,2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. LAKE 2008-268
A.C. No. 11-00877-131860

V.

WABASH MINE HOLDING COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners'
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On March 14, 2008, the Commission received from Wabash
Mine Holding Company ("Wabash") a motion by counsel seeking to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On November 15, 2007, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued to Wabash proposed penalties for three citations. According to
Wabash, it had previously filed contests to challenge the underlying citations. Wabash further
states that a new employee in the office of its safety director did not understand that the proposed
penalties had to be contested separately from the citations. Therefore, Wabash states that the

1

Commissioner Robert Cohen assumed office after this case had been filed. A new
Commissioner possesses legal authority to participate in pending cases, but such participation is
discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In the interest of
efficient decision making, Commissioner Cohen has elected not to participate in this matter.
30 FMSHRC 204

employee believed that the penalties had been contested. The Secretary states that she does not
oppose Wabash's motion to reopen 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
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 Wabash'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
Wabash'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.

c
,,.,

30 FMSHRC 205

.....

Distribution:
Arthur M. Wolfson, Esq.
R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center
401 Liberty A venue, Suite 1340
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor West
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 206

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

April 21, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2008-505
A.C. No. 46-08787-131617

V.

ALEX ENERGY, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On February 4, 2008, the Commission received from Alex
Energy, Inc. ("Alex Energy") a motion made by counsel to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On November 13, 2007, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Proposed Assessment No. 000131617 to Alex Energy,
proposing penalties for 17 citations that had been issued to the company during August 2007.
According to Alex Energy's former safety director, J.J. Meadows, upon receipt of the assessment
he placed a check mark in the box next to each of seven of the citations to indicate his
1

Commissioner Robert Cohen assumed office after this case had been filed. A new
Commissioner possesses legal authority to participate in pending cases, but such participation is
discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In the interest of
efficient decision making, Commissioner Cohen has elected not to participate in this matter.
30 FMSHRC 207

recommendation to Alex Energy's attorneys that the penalties for those citations be contested.
Meadows states that he then made arrangements for Alex Energy to pay the other ten proposed
penalties to MSHA. Meadows never followed through with consulting counsel on the seven
proposed penalties he wished to contest, however, nor did he realize that Alex Energy had failed
to contest the citations until January 2008. The Secretary states that she does not oppose Alex
Energy's request to reopen the penalty assessment as to the seven proposed penalties.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR."). In evaluating requests to
reopen 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. Ser.vs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Alex Energy's motion, in the interests of justice, we remand this matter
to the Chief Administrative Law Judge for a determination of whether good cause exists for Alex
Energy'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.

30 FMSHRC 208

Distribution:
Ramonda C. Lyons, Esq.
Dinsmore & Shohl, LLP
P. 0. Box 11887
900 Lee Street, Suite 600
Charleston, WV 25339
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor West
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 209

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

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

Docket No. KENT 2008-661
AC. No. 15-18850-135605
Docket No. KENT 2008-662
A.C. No. 15-18850-135609

v.
ICG HAZARD, LLC

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 1
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"). 2 On March 6, 2008, the Commission received from ICG
Hazard, LLC ("ICG") motions by counsel seeking to reopen two penalty assessments that had
become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
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

Commissioner Robert Cohen assumed office after this case had been filed. A new
Commissioner possesses legal authority to participate in pending cases, but such participation is
discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In the interest of
efficient decision making, Commissioner Cohen has elected not to participate in this matter.
2

Pursuant to Commission Procedural Rule 12, 29 C.F.R. § 2700.12, on our own motion,
we hereby consolidate Docket Nos. KENT 2008-661 and KENT 2008-662, as both dockets
involve similar procedural issues and similar factual backgrounds.

30 FMSHRC 210

On January 17, 2008, ICG received two proposed assessments issued by the Department
of Labor's Mine Safety and Health Administration ("MSHA"). According to ICG, following
receipt of the assessments, it forwarded them to the Director of Safety and Health for ICG's
parent company, who reviewed the assessments. ICG states that he determined to contest certain
penalties in both assessments. However, ICG states that clerical personnel in the director's
office, through a misunderstanding, did not return assessment forms to MSHA indicating that the
assessments would be contested. The Secretary states that she does not oppose the reopening of
the assessments.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700. 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 211

Having reviewed ICG' 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 ICG'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.

~~
F::ClllliTillan

Michaei

30 FMSHRC 212

Distribution:
John M. Williams, Esq.
Rajkovich, Williams,
Kilpatrick & True, PLLC
2333 Alumni Park Plaza
Suite 310
Lexington, KY 40517
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
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 213

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

April25,2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. SE 2008-279-M
A.C. No. 31-02188-130246

v.
CURRITUCK SAND, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On February 4, 2008, the Commission received from
Currituck Sand, Inc. ("Currituck") 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 October 30, 2007, the Department of Labor's Mine Safety and Health Administration
issued Proposed Assessment No. 000130246 to Currituck, proposing penalties for four citations
that had been issued to the company on September 12, 2007. Currituck's Pit Manager, whose
responsibilities at the mine include safety matters, states that the company had contested the
citations and that he believed that the operator's counsel would be filing the notice of contest

1

Commissioner Robert Cohen assumed office after this case had been filed. A new
Commissioner possesses legal authority to participate in pending cases, but such participation is
discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In the interest of
efficient decision making, Commissioner Cohen has elected not to participate in this matter.
30 FMSHRC 214

with respect to the penalties. However, counsel states that she believed that Currituck had
already filed the penalty contest form, so consequently the form was never filed. The Secretary
states that she does not oppose Currituck'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 (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 Currituck's motion, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Currituck' 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.

30 FMSHRC 215

Distribution:
Adele L. Abrams, Esq
Law Office of Adele L. Abrams, P.C
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
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 216

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

April30,2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. KENT 2008-494
A.C. No. 15-05375-130003

v.
CW ELECTRIC

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On February 6, 2008, the Commission received from
counsel for CW Electric 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 October 25, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 00013003 to CW Electric, proposing penalties for
two citations that had been issued to the contractor on June 27, 2007. The company states,
without further explanation, that, while it intended to contest the assessment, it neither filed a
notice of contest nor paid the penalties because it believed MSHA would reissue the assessment

1

Commissioner Robert F. Cohen, Jr., assumed office after this case had been filed. A
new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In
the interest of efficient decision making, Commissioner Cohen has elected not to participate in
this matter.
30 FMSHRC 217

to a different named entity. The Secretary states that she does not oppose CW Electric' s request
to reopen the 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 (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, 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 CW Electric'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 CW
Electric' s failure to timely contest the penalty proposal and whether relief from the final order
should be granted. The judge should require CW Electric to explain the basis for its belief that
MSHA would reissue the assessment to a different named entity. After that, 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.

30 FMSHRC 218

Distribution:
M. Scott Meachum, Esq.
Flaherty, Sensabaugh & Bonasso, PLLC.
200 Capitol Street
P.O. Box 3843
Charleston, WV 25338
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 219

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

April 30, 2008

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2008-512
A.C. No. 15-09830-132554

V.

ROAD FORK DEVELOPMENT
COMPANY, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners'
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On February 11, 2008, the Commission received from
Road Fork Development Company Inc. ("Road Fork") a motion by counsel seeking to reopen a
penalty assessment that had become a final order of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On November 27, 2007, the Department of Labor's Mine Safety and Health
Administration issued a proposed assessment to Road Fork for 12 citations that had been

1

Commissioner Robert F. Cohen, Jr., assumed office after this case had been filed. A
new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In
the interest of efficient decision making, Commissioner Cohen has elected not to participate in
this matter.
30 FMSHRC 220

previously issued to the operator. Road Fork states that, following receipt of the assessment, it
faxed the proposed assessment to the law firm which represented it in proceedings before the
Commission. The paralegal at the law firm who is responsible for receiving and processing
documents attempted to scan the assessment form and send it by electronic mail to the attorneys
who were primarily responsible for handling Road Fork matters. However, because of
unspecified technical problems, the attorneys never received the email, and no contest of the
penalty assessment was filed. Road Fork learned of the error when it received an invoice from
MSHA specifying unpaid assessments. The Secretary states that she does not oppose the
reopening of the assessment. 2
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("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).

2

This is the first of three proceedings involving the same law firm where a breakdown in
office procedures has been cited as the reason for contests not being filed. Orders are also being
issued today in the other two proceedings, Clean Energy Mining Co., Docket No. KENT 2008538, and Long Fork Coal Co., Docket No. KENT 2008-633. In her letter in response to the
motion filed in Long F ark, the Secretary urges that counsel take steps to ensure that such
breakdowns do not continue and that penalty assessments are timely contested. We agree with
this recommendation.
30 FMSHRC 221

Having reviewed Road Fork'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 Road
Fork'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.

30 FMSHRC 222

Distribution:
Ramonda C. Lyons, Esq.
Dinsmore & Shohl, LLP
P. 0. Box 11887
900 Lee Street
Suite 600
Charleston, WV 25339
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 223

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

April 30, 2008

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2008-538
A.C. No. 15-10753-119562

v.
CLEAN ENERGY MINING COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On February 12, 2008, the Commission received from Clean
Energy Mining Company ("Clean Energy") a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On June 6, 2007, the Department of Labor's Mine Safety and Health Administration
issued a proposed assessment to Clean Energy for 30 citations that had been previously issued to
the operator. Clean Energy states that, following receipt of the assessment, it faxed the proposed

1

Commissioner Robert F. Cohen, Jr., assumed office after this case had been filed. A
new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In
the interest of efficient decision making, Commissioner Cohen has elected not to participate in
this matter.
30 FMSHRC 224

assessment to one office of the law firm which represented it in proceedings before the
Commission. That office was to fax the assessment to another office of the law firm which was
responsible for submitting the contest form. According to Clean Energy, the second office never
received the fax in this instance, however, so the operator did not contest 18 of the proposed
penalties that it states it intended to contest, and instead paid only 12 of the penalties. The
Secretary states that she does not oppose the reopening of the assessment as to those 18
penalties. 2 In her response in this proceeding, the Secretary also notes that she notified Clean
Energy by letter dated September 6, 2007, that it was delinquent in paying the assessment at issue
here.
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).

2

This is the second of three proceedings involving the same law firm where a breakdown
in office procedures has been cited as the reason for contests not being filed. Orders are also
being issued today in the other two proceedings, Road Fork Development Co.; Docket No. KENT
2008-512, and Long Fork Coal Co., Docket No. KENT 2008-633. In her letter in response to the
motion filed in Long Fork, the Secretary urges that counsel take steps to ensure that such
breakdowns do not continue and that penalty assessments are timely contested. We agree with
this recommendation.

30 FMSHRC 225

Having reviewed Clean Energy'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 Energy'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.

30 FMSHRC 226

Distribution:
Sarah Ghiz Korwan, Esq.
Dinsmore & Shohl, LLP
P. 0. Box 11887
900 Lee Street
Suite 600
Charleston, WV 25339
Ramonda C. Lyons, Esq.
Dinsmore & Shohl, LLP
P. 0. Box 11887
900 Lee Street
Suite 600
Charleston, WV 25339
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance,· MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 227

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

April 30, 2008

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

Docket No. KENT 2008-633
A.C. No. 15-05375-132553

V.

LONG FORK COAL COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 1
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 March 4, 2008, the Commission received from
Long Fork Coal Company ("Long Fork") a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On November 27, 2007, the Department of Labor's Mine Safety and Health
Administration issued a proposed assessment to Long Fork for three citations that had been
previously issued to the operator. Long Fork states that, following receipt of the assessment, it

1

Commissioner Robert F. Cohen, Jr., assumed office after this case had been filed. A
new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In
the interest of efficient decision making, Commissioner Cohen has elected not to participate in
this matter.
30 FMSHRC 228

faxed the proposed assessment to the law firm which represented it in proceedings before the
Commission. The paralegal at the law firm who is responsible for receiving and processing
documents attempted to scan the assessment form and send it by electronic mail to the attorneys
who were primarily responsible for handling Long Fork matters. However, because of
unspecified technical problems, the attorneys never received the email, and no contest of the
penalty assessment was filed. Long Fork learned of the error when it received an invoice from
MSHA specifying unpaid assessments. The Secretary states that she does not oppose the
·
reopening of the assessment. 2
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("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).

2

In the letter in which the Secretary stated that she does not oppose Long Fork's Motion
to Reopen, she also noted that this is the third proceeding involving the same law firm where a
breakdown in office procedures has been cited as the reason for contests not being filed. Orders
are also being issued today in the other two proceedings, Road Fork Development Co., Docket
No. KENT 2008-512 and Clean Energy Mining Co., Docket No. KENT 2008-538. The
Secretary urges that counsel take steps to ensure that such breakdowns do not continue and that
penalty assessments are timely contested. We agree with this recommendation.

30 FMSHRC 229

Having reviewed Long Fork'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 Long
Fork'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.

30 FMSHRC 230

Distribution:
Ramonda C. Lyons, Esq.
Dinsmore & Shohl, LLP
P. 0. Box 11887
900 Lee Street
Suite 600
Charleston, WV 25339
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 231

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

April30,2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2008-600
A.C. No. 46-01318-132649

v.
CONSOLIDATION COAL COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On February 28, 2008, the Commission received from
Consolidation Coal Company ("Consol") a motion made by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On November 27, 2007, the Department of Labor's Mine Safety and Health
Administration issued Proposed Assessment No. 000132649 to Consol, proposing penalties for
87 citations and orders that had been issued to the company's Robinson Run No. 95 Mine during
2007. According to Consol, the proposed assessment was received by the mine's superintendent,
1

Commissioner Robert F. Cohen, Jr., assumed office after this case had been filed. A
new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In
the interest of efficient decision making, Commissioner Cohen has elected not to participate in
this matter.
30 FMSHRC 232

and the company intended to contest 24 of the proposed penalties. Consol states, however, that
due to the assessment form being misplaced during a move to new offices at a new portal of the
mine, the operator never filed the contest form. The Secretary states that she does not oppose
Consol's request to reopen the penalty assessment as to the 24 proposed penalties.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res .. Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen 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 Consol's motion, in the interests of justice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for Consol'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.

30 FMSHRC 233

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., 22nd Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 234

ADMINISTRATIVE LAW JUDGE DECISIONS

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

March 7, 2008
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 2006-524-M
AC. No. 04-01787-090994

v.

Gordon Sand Company
GORDON SAND COMPANY,
Respondent
DECISION

Appearances:

John D. Pereza, Conference & Litigation Representative, Mine
Safety & Health Administration, Vacaville, California, for Petitioner.

Before:

Judge Manning

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration ("MSHA"), against Gordon
Sand Company, 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"). Gordon Sand Company operates a
construction sand and gravel operation in Santa Barbara County, California. It contested three
citations issued by the Secretary. An evidentiary hearing was held in Oakland, California.
The Secretary's representative appeared at the scheduled hearing along with his witness
but nobody from Gordon Sand Company was present. I called George Gordon ill, the chief
executive officer of the company, at his office in Hayward, California, and was advised that he
was not in the office at that time. About ten minutes later, he called me back and advised me that
he had forgotten about the hearing. I advised him that I would be holding the company in

default.
Prior to the hearing, the Secretary agreed to vacate Citation Nos. 6390416 and 6390417.
(Secretary's Response to Prehearing Order). As a consequence, the scheduled hearing only
concerned Citation No. 6390415, which alleges a violation of 30 C.F.R. § 56.14107(a). I hereby
find Gordon Sand Company in DEFAULT with respect to that citation. Citation No. 6390415 is
affirmed in all respects as is the Secretary's proposed penalty for the citation. (Tr. 4).

30 FMSHRC 235

For the reasons set forth above, Citation No. 6390415 is AFFIRMED, and Gordon Sand
Company is ORDERED TO PAY the Secretary of Labor the sum of $177.00 within 30 days of
the date of this decision.

mg
Administrative Law Judge

Distribution:
John D. Pereza, Conference & Litigation Representative, Mine Safety & Health Administration,
2060 Peabody Road, Suite 610,Vacaville, CA 95687 (Certified Mail)
George E. Gordon III, Gordon Sand Company, 28310 Industrial Blvd., Suite F, Hayward, CA
94545 (Certified Mail)
RWM

30 FMSHRC 236

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

March 25, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
MCELROY COAL COMPANY,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2007-132
A. C. No. 46-01437-99999-01

McElroy Mine

DECISION
Appearances:

Judson H.P. Dean, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for the Petitioner;
R. Henry Moore, Esq., Jackson Kelly PLLC,
Pittsburgh, Pennsylvania, for the Respondent;

Before:

Judge Feldman

This civil penalty proceeding concerns a Petition for the Assessment of Civil Penalty filed
pursuant to section l lO(a) of the Federal Mine Safety and Health Act of 1977 ("Mine Act"),
30 U.S.C. § 820(a), by the Secretary of Labor against the respondent, McElroy Coal Company
("McElroy"). The petition seeks to impose a total civil penalty of $27,348.00 for 20 alleged
violations of mandatory safety standards contained in 30 C.F.R. Parts 70 and 75 of the
Secretary's regulations governing underground coal mines.
This matter was heard on October 16, 2007, in Fairmont, West Virginia. The parties'
post-hearing briefs and replies are of record. At trial, the parties advised that they had reached a
settlement agreement with respect to all but one of the cited violations that are the subject of this
proceeding. The record was left open for the parties to submit the terms of their agreement in
writing. The parties' Motion for Approval of Partial Settlement with respect to 19 citations and
orders was filed on March 3, 2008. McElroy has agreed to pay a total civil penalty of $12,576.50
for the 19 settled citations and orders rather than the $20,748.00 civil penalty initially proposed
by the Secretary. 1 The parties' settlement agreement is discussed below and approved herein.

1

The proposed $12,576.50 settlement is based on the Corrected Motion to Approve
Partial Settlement filed by the Secretary on March 6, 2008.
30 FMSHRC 23 7

The only order adjudicated is 104(d)(2) Order No. 7149765 for which the Secretary
proposes a $6,600.00 civil penalty. As 104(d)(2) Order No. 7149765 as well as the Secretary's
proposed civil penalty shall be affirmed, a total civil penalty of $19,176.50 shall be assessed for
the 20 cited violative conditions.

I. Statement of the Case
At issue is the proposed $6,600.00 civil penalty for 104(d)(2) Order No. 7149765 issued
on January 11, 2006, for an alleged significant and substantial ("S&S") violation of the
Secretary's mandatory safety standard in 30 C.F.R. § 75.400. 2 This mandatory safety regulation
requires that coal dust and other combustible material must be cleaned up in a timely manner
rather than being permitted to accumulate in active workings. The order was issued after
extensive coal dust accumulations were observed along an active longwall belt. The condition
was attributed to McElroy' s unwarrantable failure because the accumulations were recorded
during preshift and onshift examinations for 18 consecutive shifts (five days) without any
meaningful remedial action.
McElroy has stipulated to the fact of the section 75.400 violation. (Joint Stip. 7).
However, McElroy disputes both the S&S characterization of the violation,3 and that the
violation was unwarrantable. 4 Although the parties' disagreement on the exact measurements of
the accumulations is a matter of degree, the evidence reflects that they were widespread and
significant in depth. McElroy's contest of the S&S and unwarrantable issues primarily is based
on its assertion that the cited accumulations were not in contact with any potential ignition source
(not contacting rollers), and, therefore, the accumulations were not serious in gravity, or in need
of expeditious removal.
With respect to the issue of S&S, it is well settled that the seriousness of violations
should be evaluated in the context of continued mining operations assuming that the cited
condition will remain unabated. See, e.g., Mid-Continent Resources, 16 FMSHRC 1218, 1221
(June 1994) (citing US. Steel Mining Co., Inc., 7 FMSHRC at 1125, 1130 (Aug. 1985)). For the
reasons discussed below, given the migrating nature of coal accumulations, the propagation

2

McElroy concedes that 104(d)(2) Order No. 7124999 issued on October 26, 2005, is the
predicate order for 104(d)(2) Order No. 7149765 issued on January 11, 2006, as an intervening
"clean" inspection had not occurred. (Joint Stip. 8).
3

Generally speaking, a violation is S&S if it is reasonably likely that the hazard
contributed to by the violation will result in an accident causing serious injury. Cement Division,
National Gypsum, 3 FMSHRC 822, 825 (Apr. 1981).
4

A violation of a mandatory safety standard is unwarrantable when the actions of
the mine operator that resulted in the violation constitute more than ordinary negligence.
Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987).
30 FMSHRC 238

hazard they present, and the ever-present potential ignition source caused by worn rollers, the
Secretary's S&S designation, and her contention that the violation is attributable to an
unwarrantable failure, shall be affirmed. Consequently, McElroy has failed to demonstrate an
adequate basis for disturbing the Secretary's proposed $6,600.00 penalty.
II. Findines of Fact
This matter concerns coal accumulations that were observed along the conveyor belt
for the three-Left, five-South longwall section during a January 11, 2006, inspection at the
McElroy Mine. At that time, the longwall's production was approximately 10,000 tons of coal
per shift. {Tr. 386). Extracted coal is transported from the three-Left, five-South longwall face
on a longwall belt that carries coal from the face to the main belt at the mouth of the section.
{Tr. 84). The longwall belt comprises approximately 5,000 feet of the approximate 22 miles of
conveyor belt that is operating at the mine. (Tr. 84-5, 151). The crosscuts along the belt entry
are approximately 16 feet wide. (Tr. 98). The crosscuts are separated by large and small blocks
of coal. The large blocks of coal are 275 feet long. The smaller blocks of coal are approximately
137Yz feet long. {Tr. 103; Gov. Ex. 5A). On January 11, 2006, the longwall face was located
inby the 36 crosscut. (Gov. Ex. 5A).
The longwall belt, which is 54 inches wide, is supported by a metal structure that is four
feet high. {Tr. 84, 397). The entire structure, including the side rails, is approximately 72 inches
wide. {Tr. 397). The belt and side rails are supported above the ground by metal stands, which
are located about 10 feet apart. {Tr. 90). There are sets of top rollers and bottom or "idler"
rollers in each cradle. (Tr. 84). The bottom rollers are approximately 12 to 14 inches above the
ground and are attached to the belt stands. (Tr. 90, 129-30). The drive is located near the outby
end of the belt. (Tr. 90; Gov. Ex. 5). Along the belt near the drive, there is a "box check" and a
separate regulator used to regulate air in the belt entry. (Tr. 88).
Mine Safety and Health Administration ("MSHA") Inspector Jason Rinehart arrived at
the McElroy Mine at approximately 7:15 a.m. on January 11, 2006. Prior to going underground,
Rinehart reviewed the preshift and onshift book for the three-Left, five-South longwall section.
{Tr. 27). Rinehart noted repeated examination book entries describing the locations
of numerous accumulations in the belt entry that required cleaning during the period
beginning with the preshift examination that was completed at 7:00 a.m. for the day shift on
January 5, 2006, through the preshift examination that was completed at 7:00 a.m. for the
current January 11, 2006, day shift. The exact dimensions with respect to length and depth
of the accumulations were not entered by the preshift or onshift examiners. (Gov. Ex. 3).
Specifically, the relevant McElroy examination book notations reflect:
Accumulations between the 38 and 31 blocks were reported for 18 consecutive
shifts (5 days) (accumulations between the 38 and 35 blocks apparently were only
reported from January 5 through January 9, 2006, because the longwall face had

30 FMSHRC 239

retreated from the 38 block to the 35 block during this time). (Tr 33-64, 68-70;
see Gov. Ex. 3, at 1, 35).
Accumulations between the 17 and 22 blocks were reported for 18 consecutive
shifts (5 days) from 7:00 a.m. on January 5, 2006, until the preshift examination at
7:00 a.m. on January 11, 2006. (Tr 33-64, 68-70; see Gov. Ex. 3, at 1, 35).
Accumulations between the 9 and 11 blocks were reported for 18 consecutive
shifts (5 days) from 7:00 a.m. on January 5, 2006, until the preshift examination at
7:00 a.m. on January 11, 2006. (Tr. 33-64, 73; see Gov. Ex. 3, at 1, 35).
Accumulations at the "ALC" ("Belt AIL" or "AIL") were reported for 18
consecutive shifts (5 days) from 7:00 a.m. on January 5, 2006, until the preshift
examination at 7:00 a.m. on January 11, 2006. (Tr. 33-64; see Gov. Ex. 3, at 1,
35).
Accumulations between the 5 block and the airlock were reported for 15
consecutive shifts (4 days) from 3:00 p.m. on January 6, 2006, until the preshift
examination at 7:00 a.m. on January 11, 2006. (Tr. 33-64, 72; see Gov. Ex. 3, at
9, 35)
After reviewing the findings of the preshift and onshift examiners, Rinehart went
to the three-Left, five-South section to compare the condition of the belt entry to the notations
in the examination book. Rinehart was accompanied by McElroy' s safety representative
Charles Bradley Racer and miners' representative Tom Stem. (Tr. 74). Racer accompanied
Rinehart for the entire belt inspection. (Tr. 168). Although Rinehart believed that the belt was
running at the time of inspection, Racer testified the belt was shut down to perform the routine
maintenance that is required at the beginning of each shift, such as checking pressures on the
sheer spray arms and drums. (Tr. 92, 319-21).
Rinehart took measurements of the accumulations along the beltline and announced the
results of his measurements to Racer and Stem. They did not express any disagreement with
Rinehart's measurements at that time. (Tr. 118-119). Rinehart stated the accumulations
consisted of black float coal dust that he described as dry, fine, and powdery. The accumulations
had not been rock dusted. (Tr. 122-23). Rinehart testified that the accumulations were obvious
to anyone walking along the conveyor belt, and, that no one was cleaning the accumulations at
the time of his inspection. (Tr. 123-24).

30 FMSHRC 240

Bottom rollers are located approximately 12 to 14 inches above the mine floor. (Tr. 12930). Rinehart noted that there were two bottom rollers in contact with accumulations that
were 14 inches in depth between the 10 and 11 blocks, and that there was one roller in contact
with accumulations that were 14 inches in depth between the 9 and 10 blocks. (Tr. 128-29;
Gov. Ex. SA). Although bearings in rollers can wear over time, causing friction-related heat,
Rinehart did not detect any heat from the three bottom rollers in proximity to the coal dust
accumulations. (Tr. 130-31 ).
Rinehart also determined that 12 top rollers located between the 9 to 13 blocks had
recently been replaced during the afternoon shift on January 6, 2006. 5 (Tr. 55-57, Gov. Ex. 3 at
12). In addition, Rinehart observed two frozen top rollers 6 between the 26 and 28 blocks, a bad
top roller between the 13 and 14 blocks, and a bad bottom roller between the 12 and 13 blocks. 7
(Tr. 107, 129, 133-34). Finally, Rinehart observed that the conveyor belt was cutting into the
stands in the vicinity of the No. 18 crosscut (No. 18 block). (Tr. 124; Gov. Ex. SA).
As a result of his review of the examination book and his observations of the conditions
in the belt entry, Rinehart issued 104(d)(2) Order No. 7149765 at 9:13 a.m. on January 11, 2006,
citing a violation of the mandatory standard in section 75.400. As previously noted, this safety
standard requires combustible materials such as coal dust, float coal dust and loose coal to be
cleaned up to prevent their accumulation in active workings. Order No. 7149765 states:

An accumulation ofloose coal, coal fines, and float coal dust exists on the 3-Left,
5-South longwall belt at the following locations: No. 34-33 block loose coal and
coal fines up to 8 inches deep at various locations; No. 33-32 block loose coal up
to 5 inches deep at various locations; No. 32-31 block loose coal up to 11 inches
deep at various locations; No. 30-29 block loose coal up to 7 inches at various
locations; No. 29-28 block loose coal up to 7 inches deep at various locations; No.
28-27 block loose coal up to 9 inches deep at various locations; No. 26-25 block
loose coal 14 feet long 37 inches wide and up to 16 inches deep on both sides of
the belt; No. 9-11 block loose coal 64 inches wide in places and up to 14 inches
deep. There were two rollers in contact with the accumulations between 10-11
block and one roller in contact with accumulations between 9-10 block. Also,
there were dry coal fines and float coal dust extending between No. 5 block and

5

It is undisputed that top rollers were replaced on January 6, 2006. References in the
transcript that the top rollers were replaced on January 6, 2005, are erroneous. (Tr. 55-57).
The error occurred because the examination book entry "Replaced 12 Tops 9-13 Brk"
erroneously reflects the examination occurred on January 6, 2005, instead of January 6, 2006,
as the examiner apparently forgot to record the arrival of the new year. (Gov. Ex. 3 at 12).
6

A "frozen" roller is one that does not spin. (Tr.133).

7

A "bad" roller is one that has bearings that are beginning to fail. (Tr. 133).
30 FMSHRC 241

the box check. The float coal dust extended in the belt regulator. 0.45% methane
was detected on this belt. The following conditions were listed in the preshift
examination books for 18 shifts with no corrective action taken: Airlock to 5 wall
needs cleaned [sic], 17-22 and 31-35 block needs cleaned [sic] and 9-11 block
spillage.
(Gov. Ex. 1). Although inadvertently not cited in Order No. 7149765, Rinehart noted
accumulations at the 19 to 20 block that were 30 feet long and 6 to 8 inches in depth.
(Tr. 65; Gov. Ex. 2). 8
Rinehart designated the violation as S&S because the frozen top roller, bad bottom roller,
belt contact with the metal stand, and a potential bearing failure in the rollers contacting the coal
dust, were all potential sources of heat that could ignite the combustible coal accumulations.
(Tr. 131-36). Rinehart was also concerned with the propagation hazard of float coal dust that
could be suspended in air, providing additional fuel in the event of an explosion. (Tr. 137).
Rinehart attributed the accumulations to an unwarrantable failure because the hazardous
accumulations were extensive and obvious. Moreover, the accumulations were permitted to
exist for five days despite being repeatedly noted by examiners as a condition needing corrective
action. (Tr. 146-47).
The 104(d)(2) Order No. 7149765 was terminated at 2: 15 p.m. on January 11, 2006,
five hours after it was issued. It took at least ten miners several hours to remove the cited
accumulations. (Tr. 140-4l, 252-53; Resp. Reply Br. at 3).
Ryan Carmen is currently employed by MSHA as an inspector-in-training.
In January 2006, Carmen was employed as a foreman at the McElroy Mine. At that time,
Carmen was the foreman for the three-Left, five-South longwall section. (Tr. 203-04, 211-12).
Carmen testified that the accumulations noted in the examination book from January 5 to
January 11, 2006, between the 31 to 38 blocks, the 17 to 22 blocks and the 9 to 11 blocks were
the same accumulations cited by Rinehart in Order No. 7149765. (Tr. 231-32). In fact, Carmen
personally entered several of the notations concerning the cited accumulations in the examination
book. (Tr. 210-15). Carmen stated that conditions requiring corrective action were not always
immediately addressed at the McElroy Mine due to other priorities and personnel shortages.
(Tr. 245-46). In this regard, Carmen testified that from January 5, 2006, until Rinehart's
January 11, 2006, inspection, McElroy did not assign any miners to clean the accumulations
noted by the preshift examiners. (Tr. 246-47).

8

The testimony concerning Rinehart's observations of the accumulations between blocks
19 and 20 was allowed as relevant evidence concerning whether the accumulations observed by
Rinehart were the accumulations noted by examiners from January 5 through January 11, 2006.
However, any attempt by the Secretary to modify the citation to include the accumulations
between blocks 19 and 20 was denied. (Tr. 66).
30 FMSHRC 242

Rinehart testified that there was an 8 inch hole in the middle of the conveyor belt.
(Tr. 171-72; Gov. Ex. 2). As the conveyor belt traveled, the hole was a source of spillage
anywhere along a significant length of the three-Left, five-South beltline. (Tr. 172). Racer
corroborated Rinehart's testimony concerning the hole in the middle of the belt. Racer estimated
the size of the hole was approximately 12 inches by 6 inches. (Tr. 335). Racer speculated about
the path of the spillage after it passed through the hole in the belt. Racer opined:
Oh, if there's a hole in the belt as its moving, the coal's going to fall through that
hole. And as it falls through that hole, its going to hit the bottom belt, which is
traveling in the opposite direction and kick it, or kick it around, or have it hit a
stand and come off on the side of the belt.
(Tr. 335).
Timothy T. Underwood, McElroy' s Assistant Superintendent, similarly opined that
most of the cited accumulations came from the hole in the belt, stating that "it doesn't take very
long ... to get an accumulation on the beltline with a hole in it." (Tr. 375, 396).
After the 104(d) order was issued, Underwood asked Rinehart what action was necessary .
to restart the conveyor. Underwood stated that Rinehart responded that the accumulations had to
be cleaned before the order could be terminated. Underwood testified that Rinehart did not tell
him that any of the accumulations were contacting rollers. (Tr. 367-68).
Although Racer and Underwood admit the hole in the belt provided the means for coal
dust to accumulate quickly, McElroy disputes the extent and depth of the accumulations. Racer
testified that the accumulations were no more than twelve inches deep, and that twelve inch
depths only existed near the stands supporting the belt structure. Specifically, Racer testified the
most extensive areas where there was spillage from stand to stand was between the 9 to 11
blocks, the 25 to 26 blocks and the 31 to 34 blocks. Furthermore, Racer conceded the
accumulations were as much as twelve inches in depth between the 9 to 11 blocks and between
the 25 to 26 blocks. (Tr. 327).
Contrary to Rinehart's testimony that accumulations were situated under the belt in
proximity to several bottom rollers, Racer stated the accumulations were in narrow bands, no
more than six inches in width, that were located at the side of the belt, between the waterline and
belt structure. (Tr. 332-34). In this regard, Racer denies that Rinehart showed him any rollers
that were contacting coal. (Tr. 324-25). When asked whether Rinehart pointed out any bad
rollers, or, whether he observed any bad rollers while he accompanied Rinehart during his
inspection, Racer answered, "Not that I recall." (Tr. 325). Similarly, Underwood testified that
Rinehart did not tell him that rollers were contacting coal when Rinehart described what he
observed during his inspection. (Tr. 367-68).

30 FMSHRC 243

Ill. Further Findines and Conclusions
McElroy has stipulated that it violated section 75.400 in that the cited coal dust
accumulations were permitted to accumulate in active workings rather than being cleaned up in a
timely manner. (Joint Stip. 7). However, McElroy disputes the S&S designation and the
Secretary's claim that the accumulations were attributable to its unwarrantable failure.
As a threshold matter, it is significant to note that S&S and unwarrantable issues are
mutually independent. Although the degree of danger posed by a violation is a relevant
consideration in determining whether an unwarrantable failure has occurred, a violation does
not have to be S&S to support an unwarrantable failure. Youghiogheny & Ohio Coal Company,
10 FMSHRC 603, 609 (May 1988) (an S&S finding is not a prerequisite for issuance of a
104(d)(l) order).
a. Significant and Substantial Issue
As a general proposition, a violation is properly designated as S&S in nature if, based on
the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to by the violation will result in an injury or an illness of a reasonably serious nature.
Cement Division, National Gypsum, 3 FMSHRC at 825. mMathies Coal Co., 6 FMSHRC 1
(January 1984), the Commission explained:
fu 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 [by the violation) will
result in an injury; and (4) a reasonable likelihood that the injury in question will
be of a reasonably serious nature.

6 FMSHRC at 3-4; see also Austin Power Inc. v. Secretary, 861F.2d99, 103-04 (5th Cir. 1988),
afj'g 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).
fu U.S. Steel Mining Co., Inc., 7 FMSHRC at 1129, the Commission explained its
Mathies criteria as follows:

We have explained further that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." US. 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. US. Steel
Mining Company Co., Inc., 6 FMSHRC 1866, 1868 (August 1984) (emphasis in
original).

30 FMSHRC 244

The Commission subsequently reasserted its prior determinations that as part of any S&S
finding, the Secretary must prove the reasonable likelihood of an injury occurring as a result of
the hazard contributed to by the cited violative condition or practice. Peabody Coal Company,
17 FMSHRC 508 (April 1995); Jim Walter Resources, Inc., 18 FMSHRC 508 (April 1996).
Resolution of whether a particular violation of a mandatory standard is S&S in nature
must be made assuming continued normal mining operations. U.S. Steel Mining, 7 FMSHRC
at 1130. Thus, consideration must be given to both the time frame that a violative condition
existed prior to the issuance of a citation, and the time that it would have existed if normal
mining operations had continued. Bellefonte Lime Co., 20 FMSHRC 1250 (Nov. 1998);
Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986).
Viewing the evidence in a light most favorable to McElroy, Racer's description of
the subject accumulations, from stand to stand between several blocks, as much as 12 inches
in depth, clearly supports the Secretary's assertion that the accumulations were extensive.
However, the thrust ofMcElroy's opposition to the S&S designation appears to be its assertion
that the cited accumulations were alongside the beltline rather than under the belt in proximity to
bottom rollers.
Assuming, arguendo, that the accumulations were not contacting any rollers, coal dust
accumulations, including float dust and coal .fines, are migratory by nature. Thus, there is little
evidentiary significance to McElroy's claim that, at the time of Rinehart's inspection, the
prohibited combustible accumulations were located alongside the belt next to the rollers rather
than under the belt in contact with bottom rollers. I am unaware of any Commission precedent
that establishes contact with belt rollers as a prerequisite to an S&S determination for proscribed
accumulations in a belt entry. Moreover, such a conclusion would ignore the significant
propagation hazard posed by the extensive accumulations that are present in this case, 9
Turning to a more traditional discussion of the S&S issue, with regard to the first element
of Mathies -- violation of a mandatory standard -- McElroy has stipulated that the accumulations
cited in 104(d)(2) Order No. 7149765 constitute impermissible combustible accumulations
prohibited by section 75.400. (Joint Stip. 7).
With respect to the second element of Mathies, i.e., a discrete safety hazard contributed
to by the violation, longstanding Commission precedent has recognized that combustible
accumulations create significant explosion and propagation hazards. Old Ben Coal Co.,
1 FMSHRC 1954, 1957 (Dec. 1979) (ignitions and explosions are major causes of death and
injury to miners); Utah Power & Light Co., 12 FMSHRC 965, 970 (May 1990) (recognizing

9

"Propagation" occurs when coal dust provides the fuel that transmits "the flame of an
explosion ... over considerable areas of a mine in such manner as might result in loss of life of
workers in a mine." See Am. Geological Inst., Dictionary ofMining, Mineral, and Related
Terms 429 (2nd ed. 1997).
30 FMSHRC 245

Congressional concern regarding loose coal propagation and explosion hazards); Enlow Fork
Mining Co., 19 FMSHRC 5, 14 (Jan. 1997) (combustible accumulations are hazardous because,
when placed in suspension, they will propagate an explosion). As coal dust is combustible, if
combustion were to occur, i.e., fire or explosion, there obviously is a reasonable likelihood that
miners will be exposed to serious injury or death. Thus, the fourth element of Mathies is also
satisfied -- a reasonable likelihood of serious injury if the hazard posed by the violation results in
a fire or contributes to an explosion.
The remaining element of Mathies requires the Secretary to demonstrate that it is
reasonably likely that the combustible accumulations violation will result in an event -- a fire or
explosion -- that is reasonably likely to result in serious or fatal injury. Thus, it is the likelihood
of a fire or explosion that is the dispositive question in resolving the S&S issue.
Although I have concluded that contact with conveyor rollers is not necessary to support
an S&S designation, on balance, the evidence supports Rinehart's testimony that two bottom
rollers were contacting accumulations between the 10 and 11 blocks, and that one roller was
contacting accumulations between the 9 and 10 blocks. Rinehart's recollection is supported by
his contemporaneous field notes. (Gov. Ex. 2, at 5). In addition, Rinehart's testimony, also
supported by his notes, that there was a bad bottom roller between the 12 and 13 blocks, has not
adequately been rebutted. Id. I reach this conclusion because Racer's testimony that he did not
recall whether Rinehart pointed out any bad rollers, or, whether he observed any bad rollers when
he accompanied Rinehart, is unconvincing. (Tr. 325). Underwood's testimony that Rinehart did
not tell him that accumulations were contacting bottom rollers when they discussed abatement of
the 104(d) order is entitled to little weight, as Underwood, unlike Racer, lacked personal
knowledge of the cited conditions because he was not present during the inspection.
In the final analysis, it is undisputed that rollers are a potential ignition source by virtue of
:friction caused by the deterioration of their bearings. In fact, McElroy had replaced numerous
top rollers several days before Rinehart's inspection. Moreover, Rinehart's observation of the
conveyor belt cutting into the stands in the vicinity of the 18 block is evidence of an additional
potential ignition source. (Gov. Ex. 2 at 4).

When viewed in the context of continuing mining operations, there are sufficient
potential sources of ignition from malfunctioning rollers and belt contact with the metal frame
that are in proximity to combustible accumulations to warrant the conclusion that a fire or
explosion is reasonably likely to satisfy the third element of Mathies. This conclusion is further
supported by the propagation hazard posed by this combustible material that can easily be put in
suspension by moving belts and rollers. See Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988)
(finding that combustible fuel, capable of suspension, in the presence of ignition sources
constitutes a "confluence of factors" necessary to support an S&S violation).

30 FMSHRC 246

Notwithstanding the ignition hazard posed by rollers, McElroy attempts to diminish
the fire and explosion threat by relying on its carbon monoxide ("CO") monitoring system.
Carbon monoxide is a by-product of combustion. CO sensors are designed to detect carbon
monoxide at very low levels before flames are present. In so doing, McElroy relies on an early
detection system to warn miners, and to allow it to quickly extinguish fires, to support its
assertion that a significant fire or explosion is not reasonably likely.
McElroy' s reliance on its early detection system must be rejected. As a general
proposition, detection systems, such as methane monitors, do not diminish the seriousness of the
violation of other mandatory safety standards, such as the failure to ensure that electric face
equipment is permissible. 30 C.F.R. § 75.500. In fact, in Buck Creek Coal, Inc. v. FMSHRC, 52
F.3d 133, 136 (7th Cir. 1995), the Court, in addressing the S&S issue, rejected the mine
operator's reliance on fire suppression equipment, such as CO monitors and water sprays, to
mitigate an accumulation hazard. The Court stated the presence of such safety measures
"does not mean that fires do not pose a serious safety risk to miners." Id. The Court further
noted the operator's position "defies common sense" because such "precautions are presumably
in place ... precisely because of the significant dangers associated with coal mine fires."
Id.; see also AMAX Coal Company, 19 FMSHRC 846, 850(May1997) (holding that the
presence of fire detection equipment and fire fighting equipment does not negate the serious
safety risk posed by fires).
Finally, McElroy relies on an MSHA report concerning underground belt entry fires to
support its contention that serious injury is not a likely consequence of a belt fire. 10 MSHA,
Reducing Belt Entry Fires in Underground Coal Mines, (2007) (Resp. Ex. 53). Specifically,
the report notes that there have been no fatalities or reportable lost time injuries as a result of
the 63 reportable belt entry fires that occurred in the 25 year period from 1980 to 2005. (Id. at 6).
While this MSHA report concluded there had been no reportable lost time injuries as a
result of belt fires through 2005, it cannot be seriously contended that the report supports the
proposition that serious injury or death is not a reasonably likely result of a fire in an
underground mine. In fact, the Aracoma ROI tragically dispels any such notion. The Aracoma
disaster involved a longwall belt fire that caused the death of two miners. The fire started as a
10

This "belt entry fire report" was not provided by the respondent to the Secretary's
counsel prior to the hearing. Nor did the respondent proffer any testimony concerning the
report's contents. The record was left open to provide the Secretary an opportunity to respond to
the report, and to take additional testimony if necessary. In response to MSHA's "belt entry fire
report," on November 19, 2007, the Secretary filed the MSHA Report of Investigation of a
January 19, 2006, fatal underground coal mine fire at the Aracoma Alma Mine #1. MSHA,
Report ofInvestigation of the January 19, 2006, Fatal Underground Coal Mine Fire at the
Aracoma Alma Mine #I (2007) ("Aracoma ROf'). The record with respect to the MSHA reports
was closed after the parties elected to address the MSHA reports in their briefs rather than
provide additional testimony or documentation.
30 FMSHRC 24 7

result of frictional heating caused by the misalignment of the longwall belt and the belt of the
headgate take-up storage unit. (Aracoma ROI at 2). The fire ignited accumulations which
increased the intensity and extent of the mine fire. Id.
McElroy asserts that the Secretary's reliance on the Aracoma fire is misplaced because,
in Aracoma, the belt fire originated at the headgate take-up drive rather than at a belt entry
conveyor. (Resp. Br. at 14). The original situs of a fire is little solace to a burn victim.
Rather, the risk of injury or death is determined by the intensity of a fire or explosion -- not the
location of the initial ignition. McElroy has proffered a distinction without a difference that must
be rejected.
In addition, McElroy seeks to distance itself from the Aracoma fire because the fatalities
were attributable "to a host of conditions'' including noncompliance with ventilation
requirements and inadequate escapeways. (Id. at 14-15). This distinction is also unavailing.
The exercise of precaution, or the lack thereof, does not affect the S&S nature of a violation.
Eagle Nest, Inc., 14 FMSHRC 1119, 1123 (July 1992) (an S&S violation continues to exist
"regardless of whether caution is exercised").

Finally, the Aracoma disaster notwithstanding, the Commission previously has rejected
the identical argument that a section 75.400 violation due to accumulations in belt entries is not
S&S because very few belt fires have resulted in injuries. AMAX Coal Company, 19 FMSHRC
at 849. The Commission determined that the fact that injuries have been avoided in the past in
connection with a particular violation is fortuitous, and it is not determinative of an S&S finding.
Id. (citations omitted).
In sum, it is reasonably likely that the continued presence of this uncorrected combustible
material violation in proximity to potential ignition sources during continuing mining operations
will result in, or contribute to, a fire or explosion event that will cause serious or fatal injuries.
Consequently, the evidence reflects this violation of section 75 .400 is properly designated as
significant and substantial in nature.

b. Unwarrantable Failure Issue
The elements of unwarrantable conduct are well settled. The Commission has
determined that unwarrantable failure is aggravated conduct constituting more than ordinary
negligence. Emery Mining, 9 FMSHRC at 2001. Unwarrantable failure is characterized by such
conduct as "reckless disregard," "intentional misconduct," "indifference," or a "serious lack of
reasonable care." Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-194
(Feb. 1991); see also Buck Creek Coal, 52 F.3d at 135-36 (approving the Commission's
unwarrantable failure test).

30 FMSHRC 248

The Commission examines various factors in determining whether a violation is
unwarrantable, including the magnitude of a violative condition, the length of time that it has
existed, whether the violation is obvious, whether the violation poses a high degree of danger,
whether the operator has been placed on notice that greater efforts are necessary for compliance,
and the operator's compliance efforts made prior to the issuance of the citation or order.
Enlow Fork Mining Co., 19 FMSHRC at 11-12, 17; Mullins & Sons Coal Co., 16 FMSHRC
192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (August 1992);
Quin/and Coals, Inc., IO FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596,
1603 (July 1984). Repeated similar violations may be relevant to an unwarrantable failure
determination to the extent that they serve to put an operator on notice that greater efforts
are necessary for compliance with a standard. Peabody, 14 FMSHRC at 1263-64.
Here, McElroy permitted combustible material to accumulate over a considerable
period of time. The Commission, as well as Congress, has recognized that accumulations of
combustible materials constitute hazardous conditions, as any combustible material when placed
in suspension will enter into and propagate an explosion. Enlow Fork, 19 FMSHRC at 14, citing
S. Rep. No. 411, 91st Cong., 1st, Sess. 65 (1969), reprinted in Senate Subcommittee on Labor,
Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Part I Legislative History of the
Federal Coal Mine Health and Safety Act of 1969, at 191 (1975).
As previously discussed, the accumulations were numerous and extensive in size and
depth. As an example of one of the many accumulations cited in 104(d)(2) Order No. 7149765,
accumulations that were located on both sides of the belt between the 25 and 26 blocks were
cited that were 14 feet long, 37 inches wide, and up to 16 inches in depth. These accumulations
alone are of significant magnitude to warrant a finding that they were extensive. In this regard,
even McElroy concedes portions of the cited accumulations were as much as 12 inches deep.
Finally, Carmen recalled it took as many as 20 miners four hours to remove the cited
accumulations. (Tr. 252-53). Even McElroy acknowledges the cleanup took approximately ten
miners three hours, from after 10: 00 a.m. until 1:20 p.m., to complete. (Resp. Reply Br. at 3).
Consequently, the evidence clearly reflects the cited accumulations were extensive.
That the cited accumulations were readily apparent is evidenced by the repeated entries
by preshift and onshift examiners calling for corrective cleanup action during a five day period
encompassing 18 shifts beginning on January 5, 2006. The preshift examination "is of
fundamental importance in assuring a safe working environment underground." Enlow Fork,
19 FMSHRC at 15 (quoting Buck Creek Coal Co., 17 FMSHRC 8, 15 (Jan. 1995)). Thus,
a mine operator is required to perform preshift examinations to identify hazardous conditions.
Enlow Fork, 19 FMSHRC at 14 (citing 30 C.F.R. § 75.360(b)). Yet, Carmen testified the
preshift examiners' repeated requests for corrective action went unheeded. (Tr. 246-47).

30 FMSHRC 249

McElroy suggests there is insufficient evidence that the accumulations recorded over
these 18 shifts are the same accumulations observed by Rinehart on January 11, 2006, because,
although the examination book entries describe the accumulations by location, they do not
contain the dimensions of the accumulations. The Commission has held that the fact that a
violative condition was not noted in a preshift examination is not evidence that the violation did
not exist, or that it was of short duration. Peabody, 14 FMSHRC at 1262. Rather, the fact that
an examiner failed to record an accumulation does not bar an unwarrantable failure finding. Id.
So too, McElroy's inadequate description of the accumulations in its examination book does not
give rise to a claim that there is insufficient evidence that the accumulations observed by
Rinehart, at the identical locations noted during preshift examinations, are the same
accumulations recorded by the examiners.
With respect to whether McElroy's conduct was so egregious as to be unwarrantable, it is
important to consider the underlying facts surrounding the violation. The accumulations existed
for as long as 18 shifts. McElroy has conceded that a hole in the belt was a significant, if not
primary, source of the violative accumulations. (Tr. 375). Consequently, it is reasonable to
conclude that the hole in the belt also existed for at least 18 shifts. Mid-Continent Res., Inc.,
6 FMSHRC 1132, 1138 (May 1984) (reasonable inferences are permissible ifthere is a logical
and rational connection between the evidentiary facts and the ultimate fact inferred).
It is axiomatic that "[t]he risk to be perceived defines the duty to be owed." Palsgraf v.
Long Island R.R., 248 N.Y. 339 (1928). A hole in the middle of a conveyor belt defeats the
purpose. As Underwood admitted, "it doesn't take very long ... to get an accumulation
on the beltline with a hole in it." (Tr. 375). Given the repeated notations of significant
accumulations along the beltline, McElroy knew, or should have known, of the hole's existence.
Yet it continued to convey coal on the belt despite this source of significant combustible
accumulations. 11 Thus, the fact that the accumulations were caused by a hole in the conveyer belt
is an aggravating circumstance. Consequently, McElroy's continued operation of the defective
belt constitutes more than ordinary negligence.

In sum, the evidence unequivocally establishes the cited accumulations are attributable to
at least a high degree of negligence. The Court has concluded that extensive accumulations that
were present at least one shift and not removed after one preshift examination provided an
adequate basis to establish an unwarrantable failure. Buck Creek, 52 F.3d at 136. Here,
McElroy' s nonfeasance was far greater than the unwarrantable conduct in Buck Creek. The
obvious and extensive accumulations were of five days duration, and known to McElroy, as
11

I am cognizant that the 6 by 12 inch hole in the belt described by Racer must be viewed
in the context of the approximate 5,000 feet length of the longwall belt. (Tr. 335). However,
the documented extensive accumulations during a period of 18 shifts should have heightened
McElroy's awareness of a potential defect in the beltline as a source of the accumulations.
The hole should have been discovered when the belt was de-energized during routine belt
maintenance performed at the beginning of each shift. (Tr. 319-21 ).
30 FMSHRC 250

shown by the repeated entries in its preshift examination book. The accumulations were
dangerous, as they posed a serious fire or explosion hazard. Enlow Fork, 19 FMSHRC at 14;
see also Black Diamond Coal Mining Co., 7 FMSHRC 1117,1121 (Aug. 1985) (discussing the
combustibility of coal, and noting that "ignitions and explosions are major causes of death and
injury to miners"). McElroy was on notice that greater cleanup efforts were required by virtue of
the fact that it had been cited for245 section 75.400 violations during the two year period
preceding the issuance of the subject 104(d)(2) order. (Tr. 148-49). Finally, McElroy made no
effort to remedy the violative accumulations prior to Rinehart's inspection. See San Juan Coal
Co., 29 FMSHRC 125, 134-35 (Mar. 2007) (noting that "an operator's failure to clean up
accumulations at the time of inspection ... may support an unwarrantable failure finding").
In short, all of the necessary elements are present to support the conclusion that the cited
accumulations are attributable to McElroy's unwarrantable failure.
c. Civil Penalty
The statutory civil penalty criteria are set forth in section l lO(i) of the Act, 30 U.S.C.
§ 820(i). In determining the appropriate civil penalty to be assessed, section l lO(i) provides,
in pertinent part:
the Commission shall consider the operator's history of previous violations, the
appropriateness of such penalty to the size of the business of the operator charged,
whether the operator was negligent, the effect on the operator's ability to continue
in business, the gravity of the violation, and the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after notification of a
violation.
McElroy is a large mine operator that is subject to the jurisdiction of the Mine Act. The
proposed penalty will not affect McElroy' s ongoing business operations and McElroy promptly
abated the cited violation after the subject 104(d) withdrawal order was issued. While the history
of245 section 75.400 violations in the two year period preceding this violation should be viewed
in the context of the 22 miles ofbeltline in the McElroy Mine, such a history cannot be viewed as
a mitigating factor.
With respect to negligence, I have given McElroy the benefit of the doubt that its failure
to address the corrective action repeatedly requested by its preshift examiners evidenced only a
high degree of negligence, rather than a reckless or conscious disregard. I reach this conclusion
because of the absence of defective rollers in close proximity to the cited coal accumulations.
Finally, as previously discussed, extensive combustible accumulations along a beltline is a
violation that is serious in gravity. Consequently, there is no basis for disturbing the civil penalty
initially proposed by the Secretary. Accordingly, consistent with the statutory penalty criteria,
a civil penalty of $6,600.00 shall be assessed for 104(d)(2) Order No. 7149765.

30 FMSHRC 251

d. Settlement Terms
As noted, the Secretary has filed a motion to approve a settlement agreement with
respect to the 19 remaining citations and orders in this proceeding. A reduction in civil penalty
for these 19 cited violations, from $20,748.00 to $12,576.50, is proposed. The settlement terms
include deleting the S&S designation from Citation Nos. 7135325, 7135329, 7135696,
7135331, 7135697, 7135703 and 7135706, and vacating Citation Nos. 7135695 and 7148008.
The parties also have agreed to modify Citation No. 7135959 by deleting the S&S designation,
and by amending the citation to reflect that the violated mandatory standard was 30 C.F.R.
§ 75. 517 rather than 30 C.F.R. § 75. 604(b).
I have considered the representations and documentation submitted in support of the
Secretary's motion and I conclude that the proffered settlement is appropriate under the criteria
set forth in Section 1 lO(i) of the Act. Accordingly, the parties' settlement terms shall be
approved.

ORDER

Consistent with this Decision, IT IS ORDERED that 104(d)(2) Order No. 7149765
IS AFFIRMED.
IT IS FURTHER ORDERED that McElroy Coal Company shall pay a civil penalty of
$6,600.00 in satisfaction of 104(d)(2) Order No. 7149765.

Consistent with the parties' settlement terms, IT IS FURTHER ORDERED that
McElroy Coal Company shall pay a civil penalty of$12,576.50 for the remaining 19 citations
and orders in issue in this proceeding.
Consistent with this decision and the parties' settlement terms, IT IS ORDERED
that McElroy Coal Company shall, within 30 days of the date of this decision, pay a
total civil penalty of $19,176.50 in satisfaction of the 20 citations and orders that are the
subject of this matter. Upon receipt of timely payment, the civil penalty proceeding
in WEVA 2007-132 IS DISMISSED.

Jerold Feldman
Administrative Law Judge

30 FMSHRC 252

Distribution:
Judson H.P. Dean, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630 East,
The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106-3306

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

30·FMSHRC 253

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

April 7, 2008
CIVIL PENALTY PROCEEDINGS

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

Docket No. CENT 2006-178-M
A.C. No. 14-01477-87956
Docket No. CENT 2006-202-M
A.C. No. 14-01477-80283
Plant 1
Docket No. CENT 2006-203-M
A.C. No. 14-01478-77337
Docket No. CENT 2006-204-M
A.C. No. 14-01478-82614

v.

Docket No. CENT 2006-228-M
A.C. No. 14-01478-87955
Plant 2
Docket No. CENT 2006-207-M
A.C. No. 14-01277-74668
Docket No. CENT 2006-208-M
A.C. No. 14-01277-82615
NELSON QUARRIES, INC.,
Respondent

Docket No. CENT 2006-229-M
A.C. No. 14-01277-87965
Docket No. CENT 2006-231-M
A.C. No. 14-01277-93224
Plant 3
Docket No. CENT 2006-151-M
A.C. No. 14-01597-85132
Docket No. CENT 2006-206-M
A.C. No. 14-10597-80316
30 FMSHRC 254

Docket No. CENT 2006-230-M
A.C. No. 14-01597-90759
Docket No. CENT 2006-233-M
A.C. No. 14-01597-93238
Docket No. CENT 2006-237-M
A.C. No. 14-01597-77364-02
Plant 4
Docket No. CENT 2006-200-M
A.C. No. 14-01635-74774
Docket No. CENT 2006-201-M
A.C. No. 14-01635-80401
Plant 5
DECISION

Appearances:

Jennifer Casey, Esq, and Kristi Henes, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado, and Ronald Pennington,
Conference & Litigation Representative, Mine Safety and Health
Administration, Denver, Colorado, for Petitioner;
Paul M. Nelson, Nelson Quarries Inc., Gas, Kansas, for Respondent.

Before:

Judge Manning

These cases are before me on 16 petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"),
against Nelson Quarries, Inc., pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The cases involve 100 citations
and orders issued by MSHA under sections 104(a) and 104(d)(l) of the Mine Act at five plants
operated by Nelson Quarries. The parties presented testimony and documentary evidence at the
hearing held in Topeka, Kansas, and filed post-hearing briefs on a few of the citations.
At all pertinent times, Nelson Quarries operated five quarries in Allen and Crawford
Counties, Kansas. The quarries mine limestone and then crush and screen the material for sale.
The operations are portable. Three of these facilities operate intermittently and the other two
operate full-time. The oldest quarry has been operating since 1985 and the newest quarry was
opened in 2004. Most of the citations at issue in these cases were issued after a hazard complaint
30 FMSHRC 255

was filed by a former employee of Nelson Quarries. The complaint listed 14 alleged hazards.
Some of the hazards complained of were general, such as the ones that stated ''Nelson Quarries'
properties are unsafe to everyone who works in them" and "electricity is bad [at] all plants." (Tr.
35-36; Exs. G-1, G-11 ). Others were more specific, such as one that stated that "explosives are
left unguarded and hid around the plant to save time and money." Id. This complaint was with
respect to Plant 4. As a result of this complaint, inspectors from MSHA's Topeka, Kansas, office
conducted a comprehensive inspection of all five quarries. Because MSHA's Topeka office did
not have an electrical inspector, an electrical inspector was brought in from Salt Lake City, Utah,
to inspect the electrical systems at all five plants. (Tr. 138). MSHA determined that about half of
the hazards complained of had some validity. Nelson Quarries received more citations during
these inspections than it had ever received. All of the citations discussed below were issued
under section 104(a) of the Mine Act unless otherwise noted.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Discussion of General Issues Raised by Nelson Quarries
Nelson Quarries raised a number of general issues that are applicable to all or most of the
citations at issue. First, it argues that the Secretary failed to demonstrate that accidents could
result from many of the cited conditions. For example, it contends that an injury could only
result from an employee's intentional misconduct in many of the conditions cited under the
Secretary's guarding standard. It maintains that the Secretary failed to establish any likelihood of
an injury to employees as a result of the cited conditions.
The Federal Mine Safety and Health Review Commission and the courts have uniformly
held that mine operators are strictly liable for violations of safety and health standards. See, e.g.
Asarco v. FMSHRC, 868 F .2d 1195 (10th Cir. 1989). "[W]hen a violation of a mandatory safety
standard occurs in a mine, the operator is automatically assessed a civil penalty." Id. at 1197. In
addition, the Secretary is not required to prove that a violation creates a safety hazard, unless the
safety standard so provides.
The [Mine Act] imposes no general requirement that a violation of
MSHA regulations be found to create a safety hazard in order for a
valid citation to issue. If conditions existed which violated the
regulations, citations [are] proper.
Allied Products, Inc., 666 F.2d 890, 892-93 (5 1h Cir. 1982)(footnote omitted). The negligence of
the operator and the degree of the hazard created by the violation are taken into consideration in
assessing a civil penalty under section 11 O(i). 30 U.S.C. § 820(i). Thus, a violation is found and
a penalty is assessed even if the chance of an injury is not very great. The risk of injury and the
appropriate penalty for each citation is discussed below.

30 FMSHRC 256

The Commission interprets safety standards to take into consideration "ordinary human
carelessness." Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (September 1984). In that
case, the Commission held that the guarding standard must be interpreted to consider whether
there is a "reasonable possibility of contact and injury, including contact stemming from
inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness." Id.
Human behavior can be erratic and unpredictable. For example, someone might attempt to
perform minor maintenance or cleaning near an unguarded tail pulley without first shutting it
down. In such an instance, the employee's clothing could become entangled in the moving parts
and a serious injury could result. Guards are designed to prevent just such an accident. The fact
that no employee has ever been injured by an unguarded tail pulley at Nelson Quarries'
operations is not a defense because there is a history of such injuries at plants throughout the
United States. "Even a skilled employee may suffer a lapse of attentiveness, either from fatigue
or environmental distractions .... " Great Western Electric Co., 5 FMSHRC 840, 842 (May
1983). For example, fatal accidents have occurred at small operations as a result of inadequately
guarded tail pulleys. See Darwin Stratton & Son, Inc., 22 FMSHRC 1265 (Oct. 2000) (ALJ).
Nelson Quarries also contends that many of the conditions cited by the MSHA inspectors
existed during previous MSHA inspections. It states that MSHA did not issue citations for these
conditions until the present inspections when the company came under tougher scrutiny,
especially with respect to the guarding citations that were issued. Thus, it contends that it did not
receive fair notice ofMSHA's new interpretation of the safety standard.
The Secretary must provide fair notice of the requirements of broadly written safety
standards. Such standards are "simple and brief in order to be broadly adaptable to myriad
circumstances." Kerr-McGee Corp., 3 FMSHRC 2496, 2497(November1981); Alabama ByProducts Corp., 4 FMSHRC 2128, 2130 (December 1992). Such broadly written standards must
afford notice of what is required or proscribed. US. Steel Corp., 5 FMSHRC 3, 4 (January
1983). In "order to afford adequate notice and pass constitutional muster, a mandatory safety
standard cannot be 'so incomplete, vague, indefinite, or uncertain that [persons] of common
intelligence must necessarily guess at its meaning and differ as to its application' "Ideal Cement
Co., 12 FMSHRC 2409, 2416 (November 1990)(citation omitted). A standard must "give a
person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he
may act accordingly." Lanham Coal Co., 13 FMSHRC 1341, 1343 (September 1991).
When faced with a challenge that a safety standard failed to
provide adequate notice of prohibited or required conduct, the
Commission has applied an objective standard, i.e., the reasonably
prudent person test. The Commission recently summarized this
test as "whether a reasonably prudent person familiar with the
mining industry and the protective purposes of the standard would
have recognized the specific prohibition or requirement of the
standard."

30 FMSHRC 257

Id. (citations omitted). To put it another way, a safety standard cannot be construed to mean
what the Secretary intended but did not adequately express. "The Secretary, as enforcer of the
Act, has the responsibility to state with ascertainable certainty what is meant by the standard he
has promulgated." Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5 1h Cir. 1976). I discuss
the application of this "fair notice" issue to particular citations in more detail below.

Finally, Nelson Quarries contends that the individual at each quarry who functioned as a
lead man was not an agent of the company despite the fact that at the time of the subject
inspections each of these individuals had the title "foreman." It maintains that these employees
were rank and file miners who were only given a few ministerial functions.
As a general matter, a mine operator can be held liable for the acts ofits agents. An agent
is defined at section 3(e) of the Mine Act as "any person charged with responsibility for the
operation of all or part of a ... mine or the supervision of miners in a ... mine." The
Commission has held that the negligence of an agent of a mine operator must be considered
when determining the operator's negligence in assessing a civil penalty under section 11 O(i) of
the Mine Act and when evaluating an unwarrantable failure allegation. Southern Ohio Coal Co.,
4 FMSHRC 1459, 1463-64 (Aug. 1982); Rochester & Pittsburgh Coal Co., 13 FMSHRC 189,
194-97 (Feb. 1991).
When deciding whether a miner is an agent of an operator,
the Commission has focused on the miner's function and not his
job title. It has examined whether the miner's function involved
responsibilities normally delegated to management personnel and
whether his responsibilities were crucial to the mine's operation. It
has also considered whether the miner exercised managerial
responsibilities at the time of his negligent conduct.
Martin Marietta Aggregates, 22 FMSHRC 633, 637 (May 2000) (citations omitted). The
conduct of a rank-and-file miner, "may not, absent agency, be imputed to the operator." Whayne
Supply Co., 19 FMSHRC 447, 454 (Mar. 1997) (emphasis in original). I discuss the application
of these agency issues to particular citations in more detail below.

B. CENT 2006-151-M, Plant 4.
1. On November 15, 2005, Inspector Dustan Crelly issued Citation No. 6291250 under
section 104(d)(l) of the Mine Act alleging a violation of section 56.6130(a). (Ex. G-13). The
citation alleges that two partial rolls of primer (shock tube) were stored in the parts trailer. The
citation states that the "rolls of explosive material were under the shelves" in the trailer. The
citation also states that Foreman Gene Andres told the inspector that this material had been in the
trailer since at least June 2005. Inspector Crelly determined that an injury was reasonably likely
and that any injury would likely be fatal. He determined that the violation was significant and
substantial ("S&S") and that the negligence was high. The safety standard provides that

30 FMSHRC 258

"[d]etonators and explosives shall be kept in magazines." The Secretary proposes a penalty of
$1,000.00 for this citation.
Inspector Crelly testified that the legal identity report for Plant 4 lists Gene Andres as the
foreman. (Tr. 185; Ex. G-10). Mr. Andres also confirmed this fact during the inspection. (Tr.
189-90). Inspector Crelly was looking for improperly stored explosives because of the
allegations in the hazard complaint. (Tr. 190). Shock tube is a low explosive that is used as the
lead line to detonate high explosives. (Tr. 191). The shock tube was an explosive and it was not
stored in a magazine. The inspector testified that Mr. Andres told him that he knew that the
shock tube was being stored in the parts trailer. (Tr. 194, 216). Inspector Crelly determined that
the citation was S&S because shock tube is classified as an explosive, it was not stored in an
isolated area, and there were cigarette butts in and around the trailer. (Tr. 198-99). The shock
tube was not in the original manufacturer's packaging or any other container. As a consequence,
it could be contaminated by gr1t and sand, which would render it more sensitive to detonation.
(Tr. 200). If something were to fall off a shelf and strike the shock tube, it could easily detonate.
Miners enter the trailer every day.
Inspector Crelly determined that the violation was the result of the operator's
unwarrantable failure to comply with the safety standard. He based this determination on the fact
that Foreman Andres knew that the shock tube was present and he did not take any action to
remove it from the parts trailer. (Tr. 202). The shock tube was in plain view. The condition was
abated when the shock tube was moved to the magazine. (Tr. 203).
Thomas E. Lobb, a physical scientist with MSHA in Triadelphia, West Virginia, testified
on behalf of the Secretary by telephone. He conducts investigations into accidents that involves
explosives. (Tr. 222; Ex. G-14). He also provides training in blasting safety and provides
technical assistance to industry. He testified that shock tube is an explosive material, but its
strength is limited so that it is relatively safe to anyone standing more than 25 meters away. (Tr.
225- 38; Ex. G-14b). He testified that this product presents a fire hazard. In addition, improper
storage or mishandling can cause misfires when the shock tube is used. (Tr. 239-41). Misfires
are one of the top five causes of blasting accidents. Id.
Jon Bruner, who is in charge of product management for Dyno-Nobel, Inc., testified on
behalf of Nelson Quarries by telephone. He does not have a technical or scientific background.
(Tr. 257). He testified that shock tube is not a high explosive. (Tr. 246-49). If the shock tube
were ignited, it could cause burning injuries if it were in your hand, but it would not explode and
it would not cause a fatal injury. (Tr. 251 ). He stated that if a spool of shock tube were
accidently shot, an injury would be unlikely. (Tr. 253). He admitted that shock tube is a low
explosive and must be stored in a magazine under MSHA's regulations. (Tr. 256-57). He also
admitted that the presence of dirt, sand, and grit could make the shock tube more sensitive to
detonation. (Tr. 264).

30 FMSHRC 259

Patrick Clift, a foreman at Plant 4 for Nelson Quarries, testified that he was not aware that
the shock tube was in the parts trailer. He stated that he was the only foreman at plant 4. (Tr.
274, 276). When he was interviewed by MSHA on February 2, 2006, he stated that Gene Andres
was also a plant foreman. (Tr. 280-81; Ex. G-137h, p. 4). The mine's legal identity report lists
Mr. Andres as the foreman and the person in charge of safety. (Tr. 281-83). Nelson Quarries has
now given Mr. Andres the title of"lead man." (Tr. 284).
Gene Andres testified that he was not really a foreman at the time of the MSHA
inspection, but he was the person in charge at Plant 4. (Tr. 293). He was not a foreman because
he did not have the power to hire and fire employees or to discipline them. (Tr. 294). He can
always call the foreman when important decisions need to be made. He testified that the parts
trailer was not lighted. He was not aware that the shock tube was present until the inspector
found it. (Tr. 295). Although he performs the daily workplace examinations, he does not walk
all the way to the back of the trailer. He just makes sure that there is a clear walkway to the back
of the trailer. He made sure that there was access to the back of the trailer, but he did not notice
the shock tube when he performed his examination that Monday. (Tr. 309-10). He denies that
he admitted to Inspector Crelly that he knew that the shock tube was in the trailer. He said that
after June 2005, Buckley Powder Company did all of the blasting at the mine and that, therefore,
the shock tube must have been present since that date. (Tr. 296).
During his interview with an MSHA inspector in February 2006, Andres referred to·
himself as the "plant foreman," he said that he "direct[ed] the work force," and he had the
authority to tell "the workers what to do." (Tr. 307; Ex. G-137g, p. 2). He also stated that
although he did not have the authority to hire or fire anyone or to discipline anyone, he could
"recommend that they be disciplined or maybe talk to them if they do something wrong." Id. In
this same interview with MSHA, Andres further stated that he does not inspect the parts trailer
"because no one works in the parts trailer." (Tr. 310; Ex. G-137g, p. 4).
In its brief, Nelson Quarries makes two arguments. First, it argues that the inspector was
confused about the nature of the material in the parts trailer. Shock tubing, by itself, cannot set
off explosives because it is not strong enough. It contains 15 milligrams of HMX/aluminum
powder per meter. Any combustion would have been contained within the plastic tubing.
Without a detonator present, the shock tube did not pose a hazard to miners. The accidents cited
by MSHA occurred after the shock tubing had been inserted into a detonator. Second, Nelson
Quarries argues that Gene Andres was not its agent but was simply a lead man. The only
foremen were Mike Peres and Patrick Clift and only their actions can be imputed to Nelson
Quarries. It relies on the Commission's decision in Martin Marietta Aggregates and on the
unpublished decision of the 9th Circuit in Original Sixteen to One Mine, Inc. v. FMSHRC, 175
Fed. Appx. 825, 2006 WL 897570.
.
I find that the shock tube is an explosive as that term is used in the safety standard.
Thomas Lobb testified that shock cord is classified as an explosive and is required to be stored in
a magazine. (Tr. 225-37; Ex. G-14b). While it is not likely that the shock tube would create a

30 FMSHRC 260

serious explosion hazard, it could help propagate a fire. In addition, he testified that shock tube
can misfire when handled or stored improperly. I credit the testimony of Mr. Lobb. As a
consequence, the Secretary established a violation because the shock tube was not stored in a
magazme.
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 (January 1984), the Commission set out a four-part test for
analyzing S&S issues. Evaluation of the criteria is made assuming "continued normal mining
operations." US. 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. US. Steel Mining Co., 18 FMSHRC 862, 865 (June
1996).
The Secretary established a violation and that a discrete safety hazard was created. I also
find that it was reasonably likely that the hazard contributed to would result in an injury
assuming continued mining operations. Smoking was not prohibited in the area, cigarette butts
were found in and around the trailer, and the shock tube would vigorously bum in the event of a
fire. (Tr. 199). Anyone in the trailer was exposed to the hazard. In addition, ifthe shock tube
were used, it could misfire because it had not been properly stored. Any injury would be of a
reasonably serious nature. I find that the Secretary established that the violation was S&S.
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., 21 FMSHRC 997, 1000 (Sept. 1999);
Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001).
It is clear that the shock tube had been in the parts trailer for some time. Inspector Crelly
testified that Mr. Andres told him that he knew it was there. (Tr. 194, 216). The inspector wrote

30 FMSHRC 261

the following in his citation notes: "Gene Andres, foreman, stated that he knew this explosive
material should not have been stored in this parts trailer and it had been since at least 6/2005"
(Ex. G-13b). The shock tube was in plain view and the inspector saw it upon entering the trailer.
Andres testified that he did not know that the shock tube was present and that, when he
conducted his daily examinations, he did not walk to the back of the trailer where the shock tube
was stored. He admitted that it is likely that the shock tube had been in the parts trailer since
June because that is when Nelson Quarries stopped performing its own blasting.
I find that the Secretary established that the violation was the result of the operator's
unwarrantable failure. Inspector Crelly testified that the condition was obvious and that he
observed the shock tube when he entered the trailer. The record also establishes that the
condition had existed for some time. I credit Crelly's testimony and inspection notes on this
issue and find that Andres was aware that it was present.
I find that Mr. Andres was an agent of Nelson Quarries in this instance. Andres
accompanied MSHA inspectors during inspections as the company's representative and he acted
in that capacity during the instant inspection. (Tr. 188). When Inspector Crelly started his
inspection, Mr. Andres told him that he was the foreman. Andres was listed as a foreman and as
a person in charge of health and safety in MSHA's legal identity report. (Tr. 185; Ex. G-4).
Andres was responsible for conducting the daily workplace examinations at the plant. The
Commission has held that a miner is the agent of a mine operator when carrying out the required
examinations entrusted to him by the operator. Rochester & Pittsburgh Coal Co., 13 FMSHRC
189 ,194 (February 1991). Andres was compensated at a higher rate of pay than other
employees. When interviewed on February 1, 2006, by an MSHA special investigator, Andres
stated that he was a foreman and that he had the authority to direct the workforce, assign tasks,
shut down equipment for safety conditions, and recommend that an employee be disciplined or
terminated. (Tr. Ex. G-137g). Peres and Clift travel from plant to plant with the result that
Andres was in charge of Plant 4 when neither Peres nor Clift was around. Although Andres
could not hire or terminate an employee, he made recommendations to Peres and Clift. I find
that Mr. Andres sufficiently meets the Commission's multi-factor test for the imputation of an
agent's negligence to a mine operator for purposes of penalty assessments and unwarrantable
failure findings as set forth in Martin Marietta Aggregates, 22 FMSHRC 633, 636-40 (May
2000). The fact that only Nelson family members could make the ultimate decision on
disciplinary issues does not negate the fact that other individuals, including Andres, were given
responsibilities that are normally delegated to management personnel. (Tr. 274). 1
I also find that the court's decision in Original Sixteen to One does not support the
position of Nelson Quarries. That case was factually driven and the court specifically determined
that there was "no evidence in the record that [the lead man's] function 'involved responsibilities
normally delegated to management personnel,' or that he 'exercised managerial responsibilities
at the time of his negligent conduct.'" (quoting Martin Marietta Aggregates). The court found

1

Both Peres and Clift are related to the Nelson family by marriage.
30 FMSHRC 262

that the lead man's authority to assign tasks to the other miners with whom he was working that
day is not by itself sufficient to support a finding that he is an agent. It is clear to me that Andres
had more authority at the plant than the lead man at the Sixteen to One Mine.
For the reasons set forth above, the citation is affirmed as written. I find that the
Secretary's proposed penalty of $1,000.00 is appropriate taking into consideration the penalty
criteria set forth in section 1 lO(i) of the Mine Act.
2. On November 16, 2005, Inspector Crelly issued Order No. 6291251 under section
104(d)(l) of the Mine Act alleging a violation of section 56.6300(b). (Ex. G-15). The citation
alleges that the crusher operator shot oversized material out of the hopper at the crusher and he
was neither trained nor experienced with the handling and use of explosive material. The citation
states that Mr. Andres told the inspector that the "hopper has to be shot whenever an oversized
rock is sent to the crusher and the crusher operator is not qualified to handle explosives and he
was aware of this." (Ex. G-15). Inspector Crelly determined that an injury was reasonably likely
and that any injury would likely be fatal. He determined that the violation was S&S and that the
negligence was high. The safety standard provides that "[t]rainees and inexperienced persons
shall work only in the immediate presence of persons trained and experienced in the handling and
use of explosive material." The Secretary proposes a penalty of $1,300.00 for this order of
withdrawal.
The inspector testified that the crusher operator, who was not trained or experienced in
the use of explosives, was shooting material out of the hopper without a trained miner being
present. (Tr. 204, 208). Inspector Crelly testified that when he went into the crusher shack he
saw a stick of high explosive (Boostrite) sitting in the shack. When he asked why it was there,
the crusher operator told him that he shot oversized rock in the hopper the previous Monday and,
because he did not use all of the explosive material he had removed from the magazine, he put it
in the crusher shack. (Tr. 204-05, 207; Ex. G-74c). It was in a tray next to what the inspector
called "shotgun primers." (Tr. 206). Shotgun primers are initiation devices used to set off a high
explosive. Id. Thus, the inspector testified that he observed a high explosive stored next to
detonators in the crusher shack. (Tr. 207). The crusher operator had been smoking in the crusher
shack. (Tr. 209-10).
Inspector Crelly determined that the violation was S&S because if the cited practice
continued it was reasonably likely that someone would be seriously injured or killed. (Tr. 21213). The inspector saw the crusher operator smoking in the crusher shack. Inspector Crelly
determined that the violation was caused by the operator's unwarrantable failure to comply with
the standard because the violation was obvious and it appeared to be a standard practice at the
mine. (Tr. 214-15). The inspector admitted that the crusher operator had been told by
management not to smoke in or around the crusher shack. (Tr. 219).
Mr. Clift testified that the crusher operator was Travis Tomlinson and Tomlinson had
been trained to handle and use explosives. (Tr. 275). He testified that other Nelson Quarries

30 FMSHRC 263

employees had shown Tomlinson how to shoot out crushers at other plants owned by the
company and that Tomlinson had helped other more experienced miners perform that task before
he did so on his own. He further testified that an untrained employee can seriously damage the
crusher ifhe improperly uses explosives. (Tr. 276). The order was terminated after Mr. Andres
instructed employees that he was the only experienced and trained person who was authorized to
use explosives, and he took possession of the keys to the magazine. (Tr. 288; Ex. G-15).
Gene Andres denied that he ever told fuspector Crelly that the crusher operator was not
qualified to handle and use explosives. (Tr. 296-97). He merely told Crelly that he had not
personally trained Tomlinson. An untrained person could seriously damage the equipment ifhe
shoot explosives inside the crusher. {Tr. 298). He testified that he previously observed
Tomlinson shoot a rock in the crusher but he could not remember when that was. (Tr. 300, 317).
He also stated that he was at the plant when Tomlinson shot the rock in the crusher in November
2005 and that he observed him doing so. Andres testified that he did not notice that Tomlinson
stored the second stick of Boostrite in the crusher shack or that shotshell primers were being
stored there as well. {Tr. 300-01). Andres also said that he did not know where Tomlinson got
the cap for the blast that day.
fu his interview with an MSHA inspector in February 2006, Andres said "I normally go
with the crusher operator to shoot, but I didn't know that [Tomlinson] was shooting that day and
he forgot to take the explosives back and left a stick of Boostrite in the crusher booth the day
before the MSHA inspection." {Tr. 305-06; Ex. G-13 7g, p. 5). He further stated that when he
saw the Boostrite during the MSHA inspection, "I liked to have had a heart attack when I saw the
explosives in there ... I didn't know that he was shooting that Monday." Id.
fu its brief, Nelson Quarries argues that Inspector Crelly did not listen to the answer of
Andres when he asked if Tomlinson was trained in the use of explosives. Andres merely stated
that he had not trained him. The record establishes that Tomlinson came to Plant 4 already
trained by company employees at another plant. The record also shows that an untrained miner
could injure himself and seriously damage or destroy a very expensive primary crusher. Nelson
Quarries argues that it would never take such a risk. fudeed, when Crelly asked Tomlinson if he
knew that he should not be smoking around explosive materials, he answered in the affirmative
by stating he had been taught that smoking was prohibited during his training. (Ex. G-12 p. 19).
Mr. Clift testified that Tomlinson had been trained by two company blasters and that the
company does not allow untrained miners to use explosives. Clift also testified that the method
of abatement was actually chosen by the inspector and the company agreed to the abatement to
finish the inspection. To abate, the company agreed that Andres will be the experienced and
trained miner who can handle explosives. Nelson Quarries and Mr. Andres felt intimidated by
MSHA because the agency had multiple inspectors at the plant and at the other plants during the
same period of time. They felt that they were under the gun and ask that the order be vacated.
fu her brief, the Secretary argues that the record does not support the company's
arguments. The record demonstrates that Andres "was neither intimidated nor confused when he
30 FMSHRC 264

told Inspector Crelly that Travis Tomlinson had not received training in the handling and use of
explosive materials." (S. Br. 7). The Secretary argues that Andres testimony should not be
credited because he said contradictory things during the investigation and at the hearing. At the
hearing, Andres testified that he watched Tomlinson shoot out the hopper for the crusher. (Tr.
300-01). Mr. Andres previously told MSHA's special investigator that he was running a loader
that day and was not aware that Tomlinson was shooting the crusher. (Tr. 304-06; Ex. G-137g,
p. 5). The Secretary states that the inspector recorded his conversation with Andres in his field
notes and that Andres signed these notes. (Tr. 195-96, 313; Ex. G-12 p. 11). In addition,
Tomlinson told Inspector Crelly that b,e was "uncomfortable" handling explosives. (Tr. 207-08).
Finally, the Secretary argues that the fact that Tomlinson stored boostrite in the crusher shack
next to the shotgun primers and that he smoked in the area demonstrates that he had not been
properly trained in the handling of explosives.
The resolution of this order depends almost entirely on credibility determinations. I credit
the testimony of Inspector Crelly and the exhibits presented by the Secretary. The company's
evidence was both conflicting and unpersuasive. First, although I have no doubt that Nelson
Quarries did not want inexperienced persons handling and shooting explosives, the
preponderance of the evidence establishes that Tomlinson was neither sufficiently trained nor
experienced to be shooting the hopper of the crusher without direct supervision. I find that Mr.
Andres was operating a loader at the time Tomlinson shot the hopper for the crusher. Mr. Clift
testified that he talked to Russ and James Caudill and Chris Eagle and they told him that they
trained Tomlinson on the use of explosives at another plant. (Tr. 275). Specifically, he stated
that Tomlinson "helped Chris Eagle shoot out a crusher, I believe, its been a long time ago when
we worked at Gas [Kansas], I believe I saw him help Chris Eagle at one point, but that was a long
time ago, so [testimony interrupted]" Id. This testimony is so weak that I cannot give it much
weight. No credible evidence was presented by the company to show that Tomlinson had
actually been trained or was sufficiently experienced. Consequently, I find that the Secretary
established a violation. Mr. Tomlinson, who was not sufficiently trained or experienced, shot a
rock in the hopper when he was not in the immediate presence of someone trained and
experienced in the handling and use of explosive material.
It is clear that the violation was S&S because it was reasonably likely that the hazard
contributed to by the violation would result in death or serious injury assuming continued mining
operations. Inexperienced and untrained miners pose a hazard to themselves when handling
explosives.

Inspector Crelly determined that this violation was obvious by talking to Messrs. Andres
and Tomlinson. It appeared to Crelly that the company did not have in place appropriate
procedures for the handling and use of explosives. Tomlinson did not return the unused
Boostrite to the magazine but stored it in the crusher shack. Mr. Andres left blasting caps in his
truck so that anyone could get them. There was little or no security for explosives at the plant,
shock tube was stored in a parts trailer, and Tomlinson smoked around explosives. The inspector
testified that "the way they handled the explosives or stored the explosives showed me that they

30 FMSHRC 265

did not have respect for it." (Tr. 215). I find that a preponderance of the evidence supports the
Secretary's determination that the violation was the result of the company's unwarrantable failure
to comply with the safety standard. The violation was obvious and it appears that there was little
to no supervision of the use and storage of explosives at the site. Tomlinson apparently was
uncomfortable handling and using explosives yet he was permitted to shoot the crusher. No
effort had been made to properly train Tomlinson. Nothing in the record suggests that this was
an isolated or unusual event. The operator's attitude toward the storage and use of explosive
material was rather casual given the serious hazard that was posed. I find that Nelson Quarries
was rather indifferent toward the hazard and that their conduct exhibited a serious lack of
reasonable care. A penalty of $1,500.00 is appropriate for this violation.

C. CENT 2006-178-M, Plant 1.
1. On November 16, 2005, Inspector Chrystal Dye issued Citation No. 6291644 alleging
a violation of section 56.20003, as modified. (Ex. G-3). The citation alleges that there was about
four inches of material on the walkway of the Cedar Rapid screen #620 and that material covered
an area that was about four by six feet. Inspector Dye determined that an injury was unlikely but
that any injury could reasonably be expected to be permanently disabling. She determined that
the violation was not S&S and that the negligence was moderate. The safety standard provides,
in part, that "[w]orkplaces, passageways, storerooms, and service rooms shall be kept clean and
orderly." The Secretary proposes a penalty of $614.00 for this citation.
Inspector Dye testified that the cited area is both a passageway and a potential workplace
when maintenance is being performed. (Tr. 46; Ex. G-3). The material was up to the height of
the four inch toe boards. (Tr. 47). The walkway is rarely used, but there was a fixed ladder used
for access to the area. (Tr. 48, 83). It was most likely used for maintenance and repair. The area
was 10 to 12 feet above the ground and the accumulated material created a tripping and
stumbling hazard. There was a substantial railing along the walkway. (Tr. 83). Inspector Dye
estimated that it would take at least one day of production for this amount of material to
accumulate. (Tr. 50). Kenneth Nelson, the president of Nelson Quarries, testified that the only
time anyone would be up on the walkway would be to change screens about once every two
months when the screen is operating. (Tr. 97-99). Because material often falls off the screen,
onto the walkway, miners clean the area when they need to access the walkway. Id.
I find that the Secretary did not establish a violation. It is clear that the cited area was a
workplace or a passageway. The key factor here is that miners travel to the cited walkway for the
screen only when the screen is changed. I credit Mr. Nelson's testimony in this regard. The
screen is changed about once every two months assuming that the Cedar Rapids screen is being
used on a continuous basis. The plant operates intermittently. Under the Secretary's
interpretation of the safety standard, miners would have to regularly travel to the walkway for the
sole purpose of cleaning it even though miners would not be working or walking on the walkway
for days or weeks. If it only takes a day or two for material to accumulate, miners would be
required to clean the walkway repeatedly even though it was not being used. This repeated
30 FMSHRC 266

cleaning would needlessly expose miners to the very slipping and tripping hazards that the safety
standard was designed to prevent. There has been no showing that miners have ever walked or
worked on the cited walkway without first cleaning it off This citation is vacated.
2. On November 16, 2005, Inspector Dye issued Citation No. 6291646 alleging a
violation of section 56.18012. (Ex. G-4). The citation alleges that there were no emergency
phone numbers posted at the mine. Inspector Dye determined that an injury was unlikely and
that any injury would not result in any lost work days. She determined that the violation was not
S&S and that the negligence was moderate. The safety standard provides that "[ e]mergency
phone numbers shall be posted at appropriate telephones." The Secretary proposes a penalty of
$614.00 for this citation.
MSHA requires that phone numbers for the fire department, hospitals, poison control, and
the like be posted at every mine. (Tr. 53-54). These numbers are typically posted at the scale
house at small surface mines. Inspector Dye stated that this requirement is not obviated by the
use of cell phones. Programming a cell phone with these numbers is not sufficient. (Tr. 55). A
person who may need to make an emergency call, such as truck drivers for customers, may not
have access to the programmed cell phone. No telephone had been installed at the scale house.
(Tr. 85, 93). Foremen keep cell phones in their pickup trucks. (Tr. 117). The county has "911
Service" so a miner or a truck driver can call 911 to obtain emergency assistance. (Tr. 94).
Sometimes customers are at the site loading material into trucks when employees of Nelson
Quarriesarenotpresent. (Tr.117-18).
I find that the Secretary established a violation. The gravity is obviated by the prevalence
of cell phones and the fact that the county has 911 service. A penalty of $40.00 is appropriate.
3. On November 16, 2005, Inspector Dye issued Citation No. 6291647 alleging a
violation of section 109(a) of the Mine Act. (Ex. G-5). The citation alleges that there was no
bulletin board at the mine for posting documents required by law to be posted. Inspector Dye
determined that an injury was unlikely and that any injury would not result in any lost work days.
She determined that the violation was not S&S and that the negligence was moderate. The Mine
Act provides that there "shall be a bulletin board at ... a conspicuous place near an entrance of
[the] mine" for use is posting "orders, citations, notices and decisions required by law or
regulation to be posted .... " The Secretary proposes a penalty of $203 .00 for this citation. Dye
testified that most small mines do not have an office so they place a bulletin board at the scale
house. (Tr. 56). This plant did not have a bulletin board anywhere on the site. Kenneth Nelson
testified that the company keeps employees informed of their rights. (Tr. 97).

I find that the Secretary established a violation. The requirement for a bulletin board is
set forth in the Mine Act itself. A penalty of $60.00 is appropriate.
4. On November 16, 2005, Inspector Dye issued Citation No. 6291645 alleging a
violation of section 56.14107(a). (Ex. G-6). The citation alleges that the head pulley for belt 712

30 FMSHRC 267

was not guarded to prevent persons from becoming entangled in moving machine parts. The
citation states that the head pulley was 4Yz feet above the ground. Inspector Dye determined that
an injury was unlikely but that any injury would likely be fatal. She determined that the violation
was not S&S and that the negligence was moderate. The safety standard provides that "[m ]oving
machine parts shall be guarded to protect persons from contacting gears, sprockets, chains, drive,
head, and takeup pulleys, flywheels, coupling, shafts fan blades; and similar moving parts that
can cause injury." The Secretary proposes a penalty of $614.00 for this citation.
Inspector Dye testified that the violation was obvious. (Tr. 73-74). She said that
someone could come into contact with the head pulley while cleaning under it or while walking
in the area. Employees shovel out accumulations because they do not have Bobcat or other scoop
at the quarry. (Tr. 76). She stated that it would be easy for a miner's clothing to become
entangled in the pulley.
Kenneth L. Nelson testified that he had only been issued three citations alleging
inadequate guards on moving machine parts at all the company's plants since 2003. (Tr. 94).
The company has up to 100 guards at each plant. Nelson testified that the MSHA inspectors
were "a lot more aggressive" during the inspections at issue in these cases. {Tr. 95). He believed
that MSHA was 'judging us differently on our guards than they ever have in the past." Id.
Nelson objected to the fact that MSHA changed its guarding requirements but then inspected all
of its plants at the same time so that it could not meet these new requirements before citations
were issued. He said that he believes that MSHA previously inspected the head pulley in the
same condition without issuing a citation. {Tr. 100-01). These inspections occurred when the
unit was at a different location. (Tr. 107). The sides of the pulley, which protect the pinch
points, have always been guarded. Id.
In addition, Nelson testified that there is another conveyor right in front of the cited
conveyor that is directly in front of the cited head pulley and that this conveyor restricts access to
the cited area. {Tr. 100; Ex. R-178). Although he did not measure the height of the head pulley,
he estimates that it was over six feet above the ground. {Tr. 111 ).

The Commission addressed the issue of reasonable notice with respect to the Secretary's
guarding standard in Alan Lee Good dlb/a Good Construction, 23 FMSHRC 995 (Sept. 2001).
The Secretary has been enforcing this standard for about 23 years. In Good Construction, the
mine operator contended that it did not have adequate notice of the requirements of 30 C.F.R. §
56.14107(a) because the language of the safety standard "does not provide reasonably clear
guidance regarding how any particular moving part should be guarded, allows inconsistent
interpretation by inspectors, and is unconstitutionally vague based on the fact that other MSHA
inspectors never cited these same conditions over the past 18 years." Good Construction at 1002.
The moving machine parts were guarded in that case, but the MSHA inspector determined that
the guarding was insufficient.

30 FMSHRC 268

The Commission's decision was split on the issue of how that particular case should be
handled. Nevertheless, when put in the context of previous Commission decisions, I believe that
the holding is essentially the same in both opinions with respect to how this issue should be
analyzed in future cases, as summarized in the opinion of Commissioners Jordan and Beatty.

In applying the reasonably prudent person standard to a
notice question, the Commission has taken into account a wide
variety of factors, including the text of a regulation, its placement
in the overall enforcement scheme, its regulatory history, the
consistency of the agency's enforcement, and whether MSHA has
published notices informing the regulated community with
"ascertainable certainty" of its interpretation of the standard in
question. Also relevant is the testimony of the inspector and the
operator's employees as to whether the practices affected safety.
Finally, we have looked to accepted safety standards in the field,
considerations unique to the mining industry, and the
circumstances at the operator's mine.
23 FMSHRC 1005 (citations and footnote omitted).
The language of the standard states that moving machine parts that can cause injury,
including drive, head, tail, and take-up pulleys, must be guarded. In the preamble to the final
rule, the Secretary emphasized the broad construction of this safety standard. The preamble
states:
[T]he final standard requires the installation of guards to protect
persons from coming into contact with hazardous moving machine
parts. The standard clarifies that the objective is to prevent contact
with these machine parts. The gu.ard must enclose the moving
parts to the extent necessary to achieve this objective.
53 Fed. Reg. 32496, 32509 (Aug. 25, 1988) (emphasis added). The preamble further provides:
Under the final rule, the standard applies where the moving
machine parts can be contacted and cause injury. Some
commenters believed that guards should provide protection against
inadvertent, careless, or accidental contact but not against
deliberate or purposeful actions. They consider guards which
totally enclose moving parts as counter-productive to other safety
considerations such as proper work procedures, training, and
general attention to hazardous conditions

30 FMSHRC 269

Id. In rejecting these comments, the Secretary stated that most injuries caused by moving
machine parts occur when persons are "performing deliberate or purposeful work-related actions
with the machinery" and that the installation of a guard would have prevented these injuries. Id.
The Secretary stated that "(g]uards provide a physical barrier, which offers the most effective
protection from hazards associated with moving machine parts." Id. Thus, the Secretary
provided notice to the regulated community that she would interpret this safety standard very
broadly to protect persons from coming into contact with moving machine parts and that the
standard covers deliberate actions by employees.

The Secretary's Program Policy Manual ("PPM") provides additional information to the
public about the Secretary's interpretation of safety standards. The PPM provides, in part, as
follows:
All moving parts identified under this standard are to be guarded
with adequately constructed, installed and maintained guards to
provide the required protection. The use of chains to rail off
walkways and travelways near moving machine parts, with or
without the posting of warning signs in lieu of guards, is not in
compliance with this standard.
(Ex. G-6d; N MSHA, U.S. Dep't of Labor, Program Policy Manual, Part 56/57.14107 (2000)
("PPM")). Although the PPM is not binding on the Secretary, it does provide the mining
community with notice ofMSHA's interpretation of her safety standards.
Finally, the Secretary published MSHA 's Guide to Equipment Guarding. (Ex. G-6c).
Although this booklet is again not binding on the Secretary, it includes text and illustrative
drawings to show what the agency considers to be adequate guarding under the safety standard.
At the hearing, I ruled that the Nelson Quarries had adequate notice of the requirements
of the standard because the violation was patently obvious. (Tr. 121, 790-92). Quite simply, a
reasonably prudent person would recognize that the existing guarding did not protect persons
from coming into contact with hazardous moving machine parts. A miner could approach the
head pulley from the side and come in contact with moving parts that could injure a miner.
Although Nelson Quarries correctly stated that material on this belt dumps onto another belt,
there were accumulations in the area under the belt which would require shoveling from time to
time. (Ex. R-l 78b). 2 Access was limited from the front but not from the side. I credit the
testimony of Inspector Dye as to the accessibility of moving machine parts.
This plant is moved from location to location as the need arises. Although the plant is set
up in the same basic configuration at each location, access to moving machine parts may be more
limited at some locations and other MSHA inspectors may have overlooked the condition as a

2

This photograph was taken after the condition had been abated.
30 FMSHRC 270

result. The interpretive material issued by MSHA, including its guide to equipment guarding,
makes clear that the guards present at the time of the inspection were inadequate to protect
miners. Nelson Quarries did not sustain its burden of showing that the lack of previous citations
led it to believe that additional guarding was not required. I find that the Secretary provided
adequate notice to the mining community that the guard provided at the head pulley was
inadequate to meet the requirements of the standard. 3
For these reasons, I affirm this citation as a non-S&S citation with moderate negligence.
A penalty of $100.00 is appropriate.
5. On November 21, 2005, Inspector Thomas Barrington, an electrical inspector from
Salt Lake City, issued Citation No. 6317464 alleging a violation of section 56.12025. (Ex. G-8).
The citation alleges that the grounding system on the 527 conveyor was not being maintained in
that a ground resistance test measured 200 ohms to ground. Inspector Barrington determined that
an injury was reasonably likely and that any injury would likely be fatal. He determined that the
violation was S&S and that the negligence was moderate. The safety standard provides that
''[a]ll metal enclosing or encasing electrical circuits shall be grounded .... " The Secretary
proposes a penalty of $963.00 for this citation.
Inspector Barrington testified that the grounding system on the conveyor was not effective
because the resistance in the grounding circuit was too high to effectively open the circuit
protective device. (Tr. 143). He used an analog volt/ohm meter to test the grounding system.
There was a grounding wire present. When he tested the system, he stayed in the motor control
center (MCC) with the meter and a lead was taken by a Nelson Quarries employee or another
inspector to each motor at the plant. (Tr. 165-6). He tested the system several times to make
sure that his readings were accurate. (Tr. 157). A grounding system must provide a continuous
grounding medium back to the source and it must have low impedance. (Tr. 144). The phase-tophase voltage on the conveyor was 480 volts while phase-to-ground was 277 volts. Any miner
working in around the plant was exposed to the hazard and he could receive burns or could be
electrocuted. (Tr. 155). The inspector determined that an injury is reasonably likely because the
components at the plant are made of metal and the resistance is high. (Tr. 155, 158).
Kenneth Nelson testified that it has performed the resistance and continuity test annually
and whenever equipment is moved as required by MSHA. (Tr. 173). If the resistance is higher

3

I vacated a guarding citation for lack of notice in my decision in Higman Sand &
Gravel, 24 FMSHRC 87 (Jan. 2002) , for a number of reasons that do not apply here. First, the
plant at issue in that case was not moved around. Second, the guard that was present was quite
substantial and the cited opening in the guard was quite small. In addition, cleanup was not
performed with shovels in that instance. MSHA had previously cited the same pulley because
the guard had been removed but the inspector accepted the guard as adequate when it was
replaced to abate that citation.
30 FMSHRC 271

than expected, it can usually be corrected by cleaning corrosion from around the area where the
grounding wire is attached to the equipment.
I find that the Secretary established an S&S violation of the safety standard. I credit the
inspector's testimony that he correctly tested the grounding system~ Although corrosion may
. have created the problem, the hazard was still present and serious. It was reasonably likely that
someone would be injured or electrocuted ifthe condition were not corrected. A penalty of
$500.00 is appropriate taking into consideration the penalty criteria~
6. On November 21, 2005, Inspector Barrington issued Citation No. 6317465 alleging a
violation of section 56.12025. (Ex. G-9). The citation alleges that the grounding system on the
614 conveyor was not being maintained in that a ground resistance test measured 2.5 ohms to
ground. Inspector Barrington determined that an injury was reasonably likely and that any injury
would likely be fatal. He determined that the violation was S&S and that the negligence was
moderate. The Secretary proposes a penalty of $614. 00 for this citation.
As with the previous citation, Inspector Barrington testified that the grounding system on
the conveyor was not effective because the resistance in the grounding circuit was too high to
effectively open the circuit protective device. (Tr. 159-60). He used an analog volt/ohm meter to
test the grounding system. There was a grounding wire present. He tested the system several
times to make sure that his readings were accurate. Because of the level of impedance on the
grounding wire, the circuit breaker would not immediately trip. (Tr. 161). It would take several
seconds before the breaker would trip. (Tr. 169). The metal components of the conveyor would
become energized in the event of a fault and expose miners to an electrocution hazard. He
testified that such an event was reasonably likely.
My findings with respect to this citation are the same as with Citation No. 6317464. A
penalty of$500.00 is appropriate.
7. Prior to the hearing, the Secretary agreed to vacate Citation Nos. 6291635, 6291637,
6291642, and 6291648.
D. CENT 2006-200-M, Plant 5.
1. On October 26, 2005, Inspector Dye issued Citation No. 6291576 alleging a violation
of section 56.14107(a). (Ex. G-16). The citation alleges that there was inadequate guarding on
the smooth head pulley on the #226 conveyor. The top of the belt was about 6 feet above the
ground. The bottom of the pulley was adequately guarded, but the top was not. Inspector Dye
determined that an injury was unlikely but that any injury would result in a disabling injury. She
determined that the violation was not S&S and that the negligence was moderate. The Secretary
proposes a penalty of $60.00 for this citation.

30 FMSHRC 272

Inspector Dye testified that although an unguarded smooth pulley is not as dangerous as
an unguarded self-cleaning pulley, it still presents a hazard. (Tr. 324). There was a gap in the
guarding for this pulley "where someone could reach in and make contact with the smooth head
pulley." (Tr. 325, 430). She measured the distance to the open area as six feet off the ground.
(Tr. 327, 432). She believes that it was possible for someone cleaning up accumulations to get
the shovel handle or their shirt caught in the pulley if it were operating. Plant 5 had been in
operation since December 2004. There were between 40 and 60 machine guards at this plant.
(Tr. 323). The plant is cleaned up after it is shut down. (Tr. 432).
Michael Peres, a superintendent and safety director for Nelson Quarries, testified that the.
opening cited by Inspector Dye was about three inches wide and that the pulley was recessed
about six inches. (Tr. 475-76). The pinch point for the pulley was further away from the
opening. Mr. Peres has worked for Nelson Quarries for about 15 years and he has held about
every position at the quarries. (Tr. 498).
It is significant that the cited opening was about six feet above the ground. Nevertheless,
the opening was large enough to pose a hazard. The pulley was recessed about six inches.
Accumulations at the plant are generally cleaned up after it is shut down. I find that the Secretary
established a violation but that the negligence was low. A penalty of $50.00 is appropriate. (Tr.
794).

2. On October 26, 2005, Inspector Dye issued Citation No. 6291584 alleging a violation
of section 56.14107(a). (Ex. G-17). The citation alleges that the tail pulley on the Thor radial
stacker was not adequately guarded. The citation states that the tail pulley was guarded on the
sides but not on the bottom. The pulley was a little under six feet above the ground. Grease
fittings were within six inches of the pulley. Inspector Dye determined that an injury was
unlikely but that any injury would result in a disabling injury. She determined that the violation
was not S&S and that the negligence was moderate. The Secretary proposes a penalty of $60.00
for this citation.
Inspector Dye testified that the smooth pulley was not guarded on the bottom. (Tr. 331 ).
An employee could get under the pulley during cleanup operations or while greasing and his
clothing could become entangled in the pulley. (Tr. 334). She does not know whether
employees grease fittings around the pulley while the plant is operating. (Tr. 435-36).
Mr. Peres testified that a miner would have to climb up on a concrete structure to be
under the cited pulley. (Tr. 478; Ex. R-200k). Grease hoses were hanging down. The pulley
was recessed within the structure of the radial stacker. (Tr. 480; Ex. R-200k).

Although the possibility of an accident is low, there were exposed moving machine parts
that posed a hazard to miners. I find that the Secretary established a violation but that the
operator's negligence was low. A penalty of $50.00 is appropriate. (Tr. 795).

30 FMSHRC 273

3. On October 26, 2005, Inspector Dye issued Citation No. 6291592 alleging a violation
of section 56.14107(a). (Ex. G-18). The citation alleges that there was no guard on the alternator
belt and pulley on the Dresser Haul truck No. 1008. The cited area is only" accessed for
maintenance or to check fluid levels. Inspector Dye determined that an injury was unlikely but
that any injury would result in a disabling injury. She determined that the violation was not S&S
and that the negligence was moderate. The Secretary proposes a penalty of $60.00 for this
citation.
Inspector Dye testified that the fan blades were guarded but that the belts and pulleys
were not guarded. Miners may come in contact with the moving machine parts while checking
fluid levels and performing maintenance. (Tr. 339-40). She stated that some fluids need to be
checked while the engine is running. Often trucks are running when the operator conducts his
pre-shift examination. At least two other citations had been previously issued to Nelson Quarries
for failure to guard moving machine parts for a motor on a haul truck. (Tr. 342-43; Ex. G-18d).
MSHA's guarding manual covers the guarding of belts and pulleys in engine compartments on
mobile equipment. (Tr. 345; Ex. G-6c, p. 25). Dye testified that hands and fingers could be
severely injured as a result of this violation. (Tr. 347-48). She does not know whether
employees check fluid levels while the truck is running, but there would be nothing to stop
anyone from doing so. (Tr. 437). The belts and pulleys are recessed within the frame. The
guards installed at the factory for the radiator fan were in place.
Mr. Peres testified that fluid levels are checked with the engine off. (Tr. 481). Checking
fluid levels while the engine is running will give inaccurate readings. In addition, oil cannot be
added to the engine while it is running. The cited pulleys and belts were recessed in the engine
compartment. (Tr. 482).
Although the cited belt and pulley were recessed, they were required to be guarded under
the safety standard. The chance of injury is not great, but the guarding standard is designed to
prevent accidental injury. As stated above, the standard takes into account ordinary human
carelessness. The violation was not serious. The citation is affirmed and a penalty of $60.00 is
appropriate. (Tr. 797).
4. On October 26, 2005, Inspector Dye issued Citation No. 6291593 alleging a violation
of section 56.14107(a). (Ex. G-19). The citation alleges that there were no guards on the
alternator or the fuel injector drive pulley on the Euclid haul truck No. 1017. Inspector Dye
determined that an injury was unlikely but that any injury would result in a disabling injury. She
determined that the violation was not S&S and that the negligence was moderate. The Secretary
proposes a penalty of $60.00 for this citation. Inspector Dye testified that the conditions cited in
this citation were quite similar to those in the previous citation. (Tr. 348~52). Mr. Peres testified
that fluids are neither checked nor added while the engine is running. (Tr. 483-84).
The cited pulleys were required to be guarded under the standard. As in the previous
citation, the chance of an injury is not great but the standard was put into place to prevent

30 FMSHRC 274

accidental injuries. The violation was not serious. A penalty of $60.00 is appropriate. (Tr. 797).
5. On October 26, 2005, Inspector Dye issued Citation No. 6291569 alleging a violation
of section 56. l 4 l 12(b). (Ex. G-20). The citation alleges that the guard for the tail pulley on the
impactor belt was not secured on one side. Inspector Dye determined that an injury was unlikely
but that any injury would result in a disabling injury. She determined that the violation was not
S&S and that the negligence was moderate. The safety standard provides "guards shall be
securely in place while machinery is being operated, except when testing or making adjustments
which cannot be performed without removal of the guard." The Secretary proposes a penalty of
$60.00 for this citation.
The inspector testified that vibration can cause a guard to become loose and fall from
place. (Tr. 353). Because the guard was loose, there was an opening and, if someone were to
trip and fall in the area, he could become entangled in the moving machine parts. (Tr. 354-59)
No miners were testing or making adjustments to the machinery. (Tr. 358-59). The area of
concern to the inspector was the area around the wire mesh. (Tr. 444).
Peres testified that the pulley was guarded by a piece of solid metal that surrounded it.
(Tr. 485; Ex. G-20c). That guard was provided by the manufacturer. The guard cited by the
inspector was added by Nelson Quarries as an enhancement. Id. The mesh guard was added by
Nelson Quarries because "we didn't feel like the factory guard was adequate." (Tr. 516). The
part cited by MSHA, however, did not need additional guarding. The only reason the mesh was
there was because the person who installed it neglected to cut it off. (Tr. 518).
As I stated at the hearing, I find that the Secretary did not establish a violation. (Tr. 79798). The solid metal guard covered the moving machine parts. I credit the testimony of Peres on
this citation that the expanded metal guard was attached to protect other areas and it simply
overlapped the solid metal guard. The cited guard was not loose. Consequently, I vacate this
citation.
6. On October 26, 2005, Inspector Dye issued Citation No. 6291578 alleging a violation
of section 56.14112(b). (Ex. G-21). The citation alleges that the guard on the self-cleaning tail
pulley for conveyor No. 534 was hanging down in the area of the rollers, that the top and end
guards were damaged, that the drive belt guard was missing on the top and back, and that the
lower guard was not securely in place. Inspector Dye determined that an injury was unlikely but
that any injury would result in a disabling injury. She determined that the violation was not S&S
and that the negligence was moderate. The Secretary proposes a penalty of $60.00 for this
citation.
The inspector testified that there were a number of conditions on the conveyor that
concerned her. The guard on the side had come loose at the top and had fallen down. (Tr. 361;
Ex. G-21c). This exposed several rollers under the belt. In addition, the openings in the top
guard were too large to be effective. (Tr. 363, Ex. G-2ld). The openings were about two to three
30 FMSHRC 275

inches wide. (Tr. 446). The drive guard belt was also missing. (Ex. G-21e). This area is not
very high off the ground. (Tr. 364). She testified that no testing or repairs were being conducted
at the time of the inspection. (Tr. 366). She was concerned that miners could get their fingers or
hands entangled in the moving machine parts. She admitted that the tail pulley itself was
adequately guarded. (Tr. 444). She also stated that the "troughing rollers" shown on Ex. G-21c
are exempted under the guarding standard. (Tr. 446).
Peres believes that the guard that was loose was still protecting the tail pulley. (Tr. 487;
Ex. G-2lc). The only exposed moving machine parts are the troughing rollers, which are not
required to be guarded. He also testified that the pulley was about ten inches from the guard at
the top. As a consequence, he does not believe that anyone could get caught in the pulley. (Tr.
488; Ex. G-21d). Finally, the drive belt was normally about six to seven feet above the ground.
(Tr. 489). The inspector was able to reach the area because she was standing on top of
accumulations.
For the reasons set forth at the hearing, I affirm this citation. (Tr. 798-800). I find that
the conditions cited by Inspector Dye violated the safety standard. The area was accessible.
Although she had to stand on accumulations to see the drive belt, miners would be able to do so
too. A penalty of $60.00 is appropriate.
7. On October 26, 2005, Inspector Dye issued Citation No. 6291579 alleging a violation
of section 56.14112(b). (Ex. G-22). The citation alleges that the guarding material on the tail
pulley for conveyor No. 516 was not secured at the bottom and that this condition could allow
miners to come into contact with moving machine parts on the belt. The inspector determined
that an injury was unlikely but that any injury would result in a disabling injury. She determined
that the violation was not S&S and that the negligence was moderate. The Secretary proposes a
penalty of $60.00 for this citation.
The inspector testified that there was a gap in the belting material that was being used as a
guard. (Tr. 367; Ex. G-22c). The gap was present because the belting was not securely in place.
(Tr. 368). As a consequence, Inspector Dye believed that someone could come into contact with
the moving machine parts. (Tr. 370). The inspector could not remember how far back into the
frame the tail pulley was recessed. (Tr. 450). Peres testified that the pulley was recessed inside
the frame of the conveyor about six to eight inches. (Tr. 490).
As I stated at the hearing, the Secretary established a violation because the gap presented
a hazard to employees as illustrated in the photograph. (Tr. 800; Ex. G-22c). Because the pulley
was recessed, the chance of an injury was not very great. A penalty of $60.00 is appropriate.
8. On October 26, 2005, Inspector Dye issued Citation No. 6291572 alleging a violation
of section 56.12004. (Ex. G-23). The citation alleges that the 480 volt overhead power cable for
the 547 belt had four separate areas where damage had been done to the outer jacket, exposing
the inner wires to mechanical damage. The cable was about 12 feet in the air and the inspector
30 FMSHRC 276

believes the copper wire was showing in one location. The inspector determined that an injury
was unlikely but that any injury could result in a fatal accident. She determined that the violation
was not S&S and that the negligence was moderate. The safety standard provides, in part, that
"electrical conductors exposed to mechanical damage shall be protected." The Secretary
proposes a penalty of $60.00 for this citation.
Inspector Dye testified that the outer jacket on the cable was damaged. (Tr. 386; Ex. G23c & 23d). The plant was shut down so that cited conditions could be corrected as they were
cited, but the plant had been running the previous day. (Tr. 389). She believes that copper wire
was showing and she testified that employees of Nelson Quarries agreed with her. (Tr. 390,
454). The hazard created was that if a short developed as a result of this damage, anyone
touching the metal frame of the conveyor could receive a fatal electric shock. (Tr. 391). Peres
testified that he offered to take the cable down so that Inspector Dye could examine it more
closely, but she said she could tell that bare wires were exposed. (Tr. 491). He stated that when
he took the cable down to repair it, none of the copper wires were exposed.
I reject the idea that the inspector could positively determine that copper wire was
exposed in a small area of the suspended cable while she was standing on the ground.
Nevertheless, the standard requires that electrical conductors exposed to mechanical damage be
protected. Because the outer jacket protecting the electrical conductors had been damaged, the
cable was required to be repaired. There was a potential for a short in the circuit because the
damaged outer jacket would allow rain and snow to enter the cable. A penalty of $60.00 is
appropriate.
9. On October 26, 2005, Inspector Dye issued Citation No. 6291573 alleging a violation
of section 47.41(a). (Ex. G-24). The citation alleges that the large diesel storage tank was not
labeled for its contents so that employees would know what the tank contained. The inspector
determined that an injury was unlikely but that any injury would result in a disabling injury. She
determined that the violation was not S&S and that the negligence was moderate. The safety
standard provides that a mine "operator must ensure that each container of a hazardous chemical
has a label ... with the appropriate information." The Secretary proposes a penalty of $60.00 for
this citation.
Inspector Dye testified that a container is any "bag, barrel, bottle ... storage tank, or the
like." (Tr. 392). She said that fuel tanks are included in this definition unless the tank is on
mobile equipment. The cited tank was next to the parts trailer and it held about 7,500 to 8,000
gallons. (Tr. 394). The tank supplied fuel to the plant. Diesel fuel is a hazardous chemical
because it can have adversely affect a person's health. The MSDS for diesel fuel states that it is
hazardous. (Tr. 397-98 ; Ex. G-24c). She believes that the health hazards could lead to "longterm damage." Id.
The Secretary established a non-S&S violation. This standard is important so that anyone
on the property will know what is stored there without have to think about it. This provision is
30 FMSHRC 277

especially important for emergency responders who have never been to the plant. (Tr. 801-02).
The cited standard has only been applied to small quarries relatively recently so I have reduced
the negligence. I find that A penalty of $40.00 is appropriate.
10. On October 26, 2005, Inspector Dye issued Citation No. 6291580 alleging a violation
of section 56.4501. (Ex. G-25). The citation alleges that there was no valve on the bottom of
the 500 gallon diesel fuel tank on the Spokane crusher to stop the flow of fuel at the source. The
inspector determined that an injury was unlikely but that it could lead to a fatal accident. She
determined that the violation was not S&S and that the negligence was moderate. The safety
standard provides that "fuel lines shall be equipped with valves capable of stopping the flow of
fuel at the source.... " The Secretary proposes a penalty of $60.00 for this citation.
Inspector Dye testified that Nelson Quarries should have installed a valve to control the
flow of fuel. (Tr. 399). There was no valve on the cited fuel line. The purpose of the standard
is to allow the operator to shut off the tank if a leak develops. If the fuel keeps flowing, a fire
hazard is presented which can result in a fatal accident. (Tr. 401-02). There was no berm around
the tank to contain any leaking diesel fuel.
I find that the Secretary established a violation. It is clear that there was no valve present.
A penalty of $60.00 is appropriate.
11. On October 26, 2005, Inspector Dye issued Citation No. 6291587 alleging a violation
of section 56.610l(a). (Ex. G-26). The citation alleges that the area to the north and east of the
cap storage magazine had dry grass and brush within nine feet of the magazine. The inspector
determined that an injury was unlikely but that the violation could contribute to a fatal accident.
She determined that the violation was not S&S and that the negligence was moderate. The safety
standard provides that "areas surrounding storage facilities for explosive materials shall be clear
of rubbish, brush, [and] dry grass ... for 25 feet in all directions .... " The Secretary proposes a
penalty of $60.00 for this citation.
The inspector testified that the cap magazine qualifies as "storage facility for explosive
materials." (Tr. 403). The brush and grass was within nine feet of the magazine. (Tr. 404-05;
Ex. G-26c, 26d & 26e). If a fire were to start in the brush or grass, the flames could get into the
magazine through the air vents and cause an explosion. (Tr. 406). Peres testified that most of
the growth cited by Inspector Dye was green, but he does not deny that dry grass was present.
(Tr. 493, 522; Ex. G-26).
This citation is affirmed as written. Although some of the brush was green, it is beyond
dispute that brush and dry grass was present within 25 feet of the magazine. A penalty of $60.00
is appropriate.
12. On October 26, 2005, Inspector Dye issued Citation No. 6291588 alleging a violation
of section 56.4101. (Ex. G-27). The citation alleges that the storage area for explosive materials

30 FMSHRC 278

did not have a sign warning against smoking or open flames. There was a sign identifying it as
an explosive storage area. The inspector determined that an injury was unlikely but that any
injury could be fatal. She determined that the violation was not S&S and that the negligence was
moderate. The safety standard provides that "readily visible signs prohibiting smoking and open
flames shall be posted where a fire or explosion hazard exists." The Secretary proposes a penalty
of $60.00 for this citation.
The inspector testified that an explosion hazard existed around the storage area. (Tr.
407). There were two magazines, one for explosives and the other for ANFO (Ammonium
Nitrate/Fuel Oil). She was concerned about a fire starting and entering the magazines. (Tr. 408).
Kenneth Nelson testified that there used to be no smoking/open flames signs on magazines but
that the Kansas State Fire Marshall ordered the signs removed in 1994 to be replaced with a sign
with black letters on a white background that said, "Explosives. Keep Off." (Tr. 527). He stated
that MSHA has inspected these magazines numerous times since then without issuing citations.
He admitted that he may have been able to post both signs. (Tr. 528-29). Some of Nelson's
employees smoke while at work.
The safety standard is clear on its face. Although the plant must comply with state
regulations, it could also have included a no smoking sign. Because of the actions of the Fire
Marshall and the fact that previous MSHA inspections had not identified the violation, I reduce
the negligence to low. A penalty of$40.00 is appropriate.
13. On October 26, 2005, Inspector Dye issued Citation No. 6291590 alleging a violation
of section 56.141 OO(b). (Ex. G-28). The citation alleges that there were a number of defects
affecting safety on Dresser haul truck No. 1008. The tether strap for the operator's door was
missing. The inner door handle was missing. The glass on the door would not stay up exposing
the operator to dust and noise. One of the tether straps for the operator's seat was broken off.
The tail lights did not work. The inspector determined that an injury was reasonably likely and
that any injury could be fatal. She determined that the violation was S&S and that the negligence
was moderate. The safety standard provides that "defects on any equipment, machinery, and
tools that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to
persons." The Secretary proposes a penalty of $135.00 for this citation.
Inspector Dye testified that the door tether keeps the door from opening all the way.
Because there is no handrail on the walkway, the door is tethered to help keep the operator from
falling when getting out of the haul truck. (Tr. 410). The truck is used to haul material from the
pit to the plant. The tether straps are a safety feature because they keep the door from opening
beyond the point where it should be opened. (Tr. 411-12, 460). The tether strap for the seat
helps keeps the seat inside the cab of the truck. The haul truck sometimes travels over rough
terrain and the seat tether helps keep the seat in place. Inspector Dye believes that the inside door
handle is an important safety feature because the operator may need to exit the truck quickly in
an emergency. (Tr. 415-16). She was also concerned that the truck operator was being
constantly exposed to noise and dust because the door window would not stay up. She admitted
30 FMSHRC 279

that MSHA's standards do not require that windows be installed on trucks. (Tr. 462-64). She
also said that tail lights are important so that any vehicles behind the haul truck would know
where it is and where it is going. It is often windy and dusty in Kansas, which obscures the
vision of equipment operators. (Tr. 413-14). Although Inspector Dye admitted that she did not
know exactly how long these conditions existed on the truck, it was apparent that the conditions
had existed for some time. (Tr. 418-19).
Inspector Dye testified that, given the number of defective conditions on the truck, it was
reasonably likely that the violation would contribute to a fatal injury. (Tr. 419). The truck
operator could fall from the cab, he could be trapped inside the cab in the event of an accident,
and he could be thrown around inside the cab in the event another vehicle collided with the truck.
For this reason, she determined that the violation was S&S.

Mr. Peres testified that the leather strap for the door on the haul truck is not a safety item.
(Tr. 494). It is there to keep the door from slamming back against the side of the cab and the bed.
The company had ordered a new handle for the door but it had not yet arrived. He did not
explain this to the MSHA inspector. (Tr. 521).
For the reasons set forth in Inspector Dye's testimony, I affirm this citation. Taken
together, the safety defects cited by the inspector created a significant hazard to the truck
operator. I credit the inspector's conclusion that these defects were not corrected in a timely
manner. I also find that the violation was S&S because it was reasonably likely that the hazard
contributed to by the violation would result in a serious injury. A penalty of$135.00 is
appropriate.
14. On October 26, 2005, Inspector Dye issued Citation No. 6291594 alleging a violation
of section 56.14100(b). (Ex. G-29). The citation alleges that there was only one operable backup
light and no operating tail lights on the Euclid haul truck No. 1017. The inspector determined
that an injury was unlikely but that any injury could be permanently disabling. She determined
that the violation was not S&S and that the negligence was moderate. The Secretary proposes a
penalty of $60.00 for this citation.
The inspector testified that tail lights are necessary in dusty environments and in the dark
so that the truck can be seen from behind. (Tr. 423-24). In addition, when the back up light
comes on, anyone behind the truck will know that the truck will be backing up. The truck backs
up when it dumps at the crusher.
I find that inadequate backup lights and tail lights are defects that affect safety. I also find
that these defects were not corrected in a timely manner. A penalty of $60.00 is appropriate.

15. On October 26, 2005, Inspector Dye issued Citation No. 6291591 alleging a violation
of section 56.14132(a). {Ex. G-30). The citation alleges that the backup alarm on the Dresser
haul truck No. 1008 was not working. The truck is regularly used to haul material from the pit to
30 FMSHRC 280

the crusher. The inspector determined that an injury was reasonably likely and that any injury
could be fatal. She determined that the violation was S&S and that the negligence was moderate.
The safety standard provides that "manually operated horns or other audible warning devices
provided on self-propelled mobile equipment as a safety device shall be maintained in a
functional condition." The Secretary proposes a penalty of $135.00 for this citation.
The inspector testified that a backup alarm is considered to be an audible warning device
as that term is used in the safety standard. (Tr. 425). A backup alarm lets people in the area
know that the vehicle will be backing up. Nelson Quarries did not offer any explanation for this
condition. She believes that it was reasonably likely that someone would be fatally injured if the
cited condition were not corrected. (Tr. 427-28).
Peres testified that pedestrians are never on the ground while haul trucks are operating.
(Tr. 495-96). In addition, over-the-road trucks are never in the area where the haul truck
operates. Only one haul truck is operating at any given time.
It is clear that a backup alarm is a safety device and that it was not maintained in a
functional condition. Many people have been killed or injured at mines because of faulty backup
alarms. Because there are no pedestrians at this mine while haul trucks are operating, I find that
the violation was not S&S. A penalty of $60.00 is appropriate.

16. Prior to the hearing, the Secretary agreed to vacate Citation No. 6291581 and Nelson
Quarries agreed to withdraw it contest of Citation Nos. 6291574, 6291582, and 6291585.
E. CENT 2006-201-M, Plant 5.
1. On October 26, 2005, Inspector Dye issued Citation No. 6291583 alleging a violation
of section 56.14107(a). (Ex. G-31). The citation alleges that the head pulley on the No. 546
conveyor was not adequately guarded. The head pulley was guarded on the side but not on the
front. The inspector determined that an injury was reasonably likely and that any injury was
likely to be permanently disabling. She determined that the violation was S&S and that the
negligence was moderate. The Secretary proposes a penalty of $72.00 for this citation.
Inspector Dye testified that there is a platform that the operator uses for taking grab
samples of the material coming off the belt. (Tr. 532). Employees reach over the railing with a
bucket or some other vessel to take a sample of the product. She believes that someone could be
severely injured iftheir clothing got caught in the moving pulley as he was trying to get a product
sample. (Tr. 534). Inspector Dye designated the citation as S&S because she believes that a
serious injury is reasonably likely assuming continued normal mining operations. (Tr. 535-36).
The head pulley was partially guarded. (Tr. 568-69). She admitted that ifthe guard were
extended, the mine operator would not be able to obtain grab samples at that location. (Tr. 57071 ).

30 FMSHRC 281

Mr. Peres testified that the existing guard extended an inch or two in front of the head
pulley. (Tr. 588). The existing mesh guard was about the height of a person's arm pit. The
pinch point was behind the mesh guard. A grab sample was taken about once a week. (Tr. 589).
I affirmed this citation at the hearing. (Tr. 802-04). I held that the condition created a
hazard because grab samples were taken at this location. A person's jacket or clothing could
easily become entangled in the moving machine parts. A penalty of $70.00 is appropriate.

2. On October 26, 2005, Inspector Dye issued Citation No. 6291586 alleging a violation
of section 56.9300(a). (Ex. G-32). The citation alleges that the approaches to the elevated scale
were not bermed to prevent over-travel of mobile equipment. The inspector determined that an
injury was unlikely but that any injury was likely to be permanently disabling. She determined
that the violation was not S&S and that the negligence was moderate. The safety standard
provides that "berms 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." The Secretary proposes a penalty of$60.00 for this citation.
Inspector Dye stated that the scale was used to weigh trucks entering and leaving the
property. (Tr. 537). The cited roadway is mostly used by over-the-road trucks. She testified that
the west approach was 25 feet long and had a drop-off of three feet on both sides. (Tr. 539). The
east approach had a drop-off of three and a half feet on the south and about six to seven feet on
the north. (Tr. 539, 575). There were no berms or guardrails present. (Tr. 540). She was
concerned that if a truck were to go over the edge, its load could shift and the vehicle could tum
over. (Tr. 542).
Peres testified that the drop-offs on both sides of the road through the scale were sloped.
(Tr. 590). He further disagreed with the inspector and said that the drop-off was not six or seven
feet on one side. (Tr. 592). The slope along the side of the road was not steep enough to cause a
truck to overturn of it went off the road. (Tr. 594). Truck drivers are instructed to not exceed
five miles per hour over the scale because the scale can be damaged by higher speeds. (Tr. 59394).
I find that the Secretary established a violation. I credit the testimony of Inspector Dye. I
find that the violation was not serious and the operator's negligence was low because the hazard
was not obvious and drivers proceed over the scale house at a low rate of speed. A penalty of
$40.00 is appropriate.
3. On October 26, 2005, Inspector Dye issued Citation No. 6291589 alleging a violation
of section 56.14101(a)(2). (Ex. G-33). The citation alleges that the park brake on the Dresser
haul truck No. 1008 would not hold the truck when it was tested on a slight downgrade. The
inspector determined that an injury was unlikely but that any injury was likely to be fatal. She
determined that the violation was not S&S and that the negligence was low. The safety standard

30 FMSHRC 282

provides, in part, that "parking brakes shall be capable of holding the equipment with its typical
load on the maximum grade it travels." The Secretary proposes a penalty of $60.00.
Inspector Dye testified that the truck was equipped with a parking brake. {Tr. 546). The
parking brake worked when the key for the haul truck was in the on position but the parking
brake would not work if the key was in the off position. {Tr. 547). This condition violated the
safety standard because fatal accidents have occurred because of defective parking brakes. {Tr.
552). The truck cannot be operated without the key. {Tr. 578).
Mr. Peres testified that when the driver does his preshift examination of the truck, it is
parked against an embankment so it cannot roll. (Tr. 595). The park brake cannot be checked
without moving the vehicle, so the truck is running when the check is performed.
I find that the Secretary established a violation but that the operator's negligence was low.
When the truck driver performed the preshift examination of the parking brake, the truck was
running. As a consequence, it appeared that the parking brake was properly functioning. A
penalty of$40.00 is appropriate.
4. On October 26, 2005, Inspector Dye issued Citation No. 6291595 under section
104(d)(l) of the Mine Act alleging a violation of section 56.14101(a)(2). (Ex. G-34). The
citation alleges that the park brake on the Euclid haul truck No. 1017 did not hold the truck when
it was tested on a slight grade. The citation states that pre-shift reports establish that the park
brake had not been working since September 29, 2005, and that the foreman knew of this defect.
The inspector determined that an injury was reasonably likely and that any injury was likely to be
fatal. She determined that the violation was S&S and that the negligence was high. The
Secretary proposes a penalty of $625. 00 for this citation.
Inspector Dye testified that the preshift checklist filled out by the truck operator shows
that the park brake had not been working since late September. (Tr. 554-55). Three different
truck operators reported the problem on the preshift checklist. The foreman, Ronnie Head, told
the inspector that he knew that the park brake was not working and that he had called the
mechanic to repair the brake. Apparently, the mechanic told him that the park brake did not need
to work. (Tr. 555, 557). Mr. Head told the inspector that he advised Mr. Peres of this problem.
(Tr. 55T-58). Peres told the inspector that he did not know that the park brake was not working
properly. (Tr. 558). This truck was used while the park brake was inoperative and it was not
taken out of service. (Tr. 561 ). It was possible that the truck was idle for long periods of time.
(Tr. 582). The service brakes were working.
The inspector designated the citation as S&S because the company had been using the
truck in a defective condition for almost a month. (Tr. 562). The truck has to travel over grades
of up to nine to twelve percent. She tested the brake with the bed empty, but it often travels with
a load of rock. With other trucks around, it would be impossible to hold the truck on a steep
grade. She believed that it was reasonably likely that the violation would contribute to an injury
30 FMSHRC 283

of a reasonably serious nature. In addition, she noted that there had been an accident at another
plant of Nelson Quarries in 2005 in which the equipment operator lost control of his vehicle and
his service brakes were not operating.
Mr. Peres testified that this truck was used on an intermittent basis. (Tr. 599). Mr. Head
told him, after this inspection, that he had called a mechanic to fix the problem after it was noted.
(Tr. 600). He stated that he talks to the foremen at the plant about any preshift problems, but he
does not usually examine the records that are kept in the trucks. (Tr. 603). He further testified
that he first learned that the park break was not working moments before MSHA arrived to
perform its inspection. (Tr. 610). Mr. Head had known about this problem for about 30 days.
Peres stated that he immediately tagged the truck out of service.

In its brief, Nelson Quarries argues that this citation should not have been issued under
section 104(d)(l). The inspector issued the unwarrantable failure citation based on statements of
Mr. Head, who was a lead man at the plant. Mr. Head was not an agent of Nelson Quarries
because he was paid on an hourly basis and he did not have management authority. He was "able
to contact" Mr. Peres "any time anything came up" that "needed management input." (N.Q. Br.
12). He did not have the authority to hire, fire, discipline, or assign equipment to miners." Id.
Mr. Head did not follow company procedures when he failed to notify Peres that the park brake
did not work. Nelson Quarries seeks to have this citation modified to a non-S&S, low negligence
section 104(a) citation.
In response, the Secretary contends that it is not disputed that the park brake was not
functioning and that this condition had been consistently reported on prior pre-shift reports. She
notes that the company acknowledges that Mr. Head had the responsibility to report the defect to
appropriate officials. It is undisputed that Mr. Head was responsible for conducting workplace
examinations at Plant 5. Dye testified that Mr. Head directed the workforce while she was at the
plant for the inspection and that he ordered employees to correct conditions that had been cited
during the inspection. Dye also testified that Mr. Head told her that he had received supervisory
training from the company under Part 46 of the Secretary's regulations. (Tr. 560-61). As stated
above, the Secretary also noted that all of the forms submitted by the company to MSHA
indicated that Mr. Head was the foreman in charge of the plant. The Secretary also argues that
Mr. Peres had knowledge that the park brake was not working well before the inspection.
I find that the violation was S&S. The condition had existed for almost a month and it
was reasonably likely that the hazard contributed to by the violation would lead to a serious
accident. I credit the testimony of Inspector Dye in this regard.
I also find that the violation was the result of the operator's unwarrantable failure to
comply with the standard. As with Mr. Andres in Citation No. 6291250, discussed above, I find
that Mr. Head functioned as an agent of Nelson Quarries for the purposes of the Mine Act. He
presented himself to Inspector Dye as the company's representative and the company had given
him the title "foreman." He conducted the workplace examinations and he had the authority to
30 FMSHRC 284

direct the workforce at the plant. The only management function he did not possess was the
ability to hire, fire, and discipline employees but he made recommendations as the need arose.
Although Mr. Head reported to Mr. Peres, it is clear that Mr. Head was the onsite manager when
Mr. Peres was not at the plant. As with Mr. Andres, he had the authority to assign job duties,
direct the use of equipment, represent the company during safety and health inspections, and
direct the abatement of citations. He was aware that the park brake on the truck did not work and
he permitted its continued operation. He. made several attempts to get the company's mechanic
to come to the plant to fix the brakes without success. Inspector Dye testified that Mr. Head told
· her that he advised Mr. Peres that the park brake was not working. (Tr. 557).
The violative condition existed for over a month, at least one of the operator's agents
knew of the condition, and the condition posed a significant risk to employees. A penalty of
$625.00 is appropriate for this citation.

F. CENT 2006-202-M, Plant 1.
1. On November 16, 2005, Inspector Dye issued Citation No. 6291636 alleging a
violation of section 47.41(a). (Ex. G-35). The citation alleges that the diesel tank by the oil
storage trailer was not labeled for its contents to ensure that everyone knew what chemical was
present. Inspector Dye determined that an injury was unlikely but that any injury could
reasonably be expected to be permanently disabling. She determined that the violation was not
S&S and that the negligence was moderate. The Secretary proposes a penalty of$375.00 for this
citation.
Inspector Dye testified that when she arrived at Plant 1, the gate was locked. (Tr. 615).
The plant had not produced for a few months. After a mechanic arrived and unlocked the gate,
she conducted her inspection. She testified that the cited diesel tank was large. (Ex. 35c). There
was diesel spillage on the ground near the nozzle. {Tr. 617). The words "Flammable No
Smoking" was written on the tank in large letters. All employees knew that the tank was for the
storage of diesel fuel. (Tr. 630).
Mr. Peres testified that Plant No. 1 was not operating at the time the citation was issued.
(Tr. 640). The pit was full of water and there were only a few pieces of mobile equipment
present. There were no haul trucks present to haul material to the crusher.

For the reasons set forth above with respect to Citation No. 6291573, I affirm the citation.
Although the plant was not operating at this time, the company had not notified MSHA that the
plant was closed. I am reducing the negligence to low because the plant was not operating and
this relatively new safety standard was only now being applied to the company's quarries. A
penalty of $40.00 is appropriate.
2. On November 16, 2005, Inspector Dye issued Citation No. 6291639 alleging a
violation of section 47.41(a). (Ex. G-36). The citation alleges that the diesel tank inside the
30 FMSHRC 285

electrical trailer was not labeled for its contents to ensure that everyone knew what chemical was
present. Inspector Dye determined that an injury was unlikely but that any injury could
reasonably be expected to be permanently disabling. She determined that the violation was not
S&S and that the negligence was moderate. The Secretary proposes a penalty of $375.00 for this
citation.
Inspector Dye testified that the tank supplied fuel to the generator. (Tr. 621). She had
previously observed at least one diesel tank at a Nelson Quarries plant that was properly labeled.
(Tr. 622-23). She did not check to see if there was any fuel in the tank. (Tr. 632). Employees
knew that the tank was for the storage of diesel fuel. (Tr. 633). Peres testified that the tank was
empty and it was not plumbed in. (Tr. 642, 652). The 1,000 gallon diesel tank for the generator
was outside. (Tr. 643).
If the tank was empty and not plumbed in, it need not be labeled for its contents. Given
that the inspector did not check to see if there was fuel in the tank, I credit the testimony of Mr.
Peres and vacate this citation.

3. On November 16, 2005, Inspector Dye issued Citation No. 6291638 alleging a
violation of section 56.4104(b). (Ex. G-37). The citation alleges that a five gallon bucket
containing used oil and rags was sitting inside the oil storage trailer. Inspector Dye determined
that an injury was unlikely but that any injury would likely be fatal. She determined that the
violation was not S&S and that the negligence was moderate. The safety standard provides that
"waste or rags containing flammable or combustible material that could create a fire hazard shall
be placed in covered metal containers or other equivalent containers with flame containment
characteristics." The Secretary proposes a penalty of $614.00 for this citation.
Inspector Dye testified that she saw the oil and rags in an ordinary plastic bucket. (Tr.
625). If there were an ignition source, a fire could be started. She did not observe any ignition
sources. A fire extinguisher was in the area.
I find that the Secretary established a violation. Because the violation was not serious, a
penalty of $60.00 is appropriate.
4. On November 16, 2005, Inspector Dye issued Citation No. 6291641 alleging a
violation of section 56.14107( a). (Ex. G-38). The citation alleges that the alternator and fan vbelts were not guarded on the generator in the electrical trailer. Inspector Dye determined that an
injury was unlikely but that any injury would likely be permanently disabling. She determined
that the violation was not S&S and that the negligence was moderate. The Secretary proposes a
·
penalty of $375.00 for this citation.
The inspector testified that the cited belts were not guarded. (Tr. 628; Ex. G-38c). The
fan blades were properly guarded. Someone might be in the area to check any fluids or to check
the belts. The area is narrow. If someone were to slip, he could get his hand caught in the
30 FMSHRC 286

moving machine parts. (Tr. 629). The dipstick was not near the unguarded v-belts. Peres
testified that it would be very difficult to come into contact with the cited belts. (Tr. 644). The
generator is controlled from a computer panel at the back of the trailer. He believes that the belts
were guarded by location.
At the hearing, I upheld the citation because the cited area was not guarded. (Tr. 804-05).
The belts for the fan were required to be guarded. Because the violation was not S&S, a penalty
of $60.00 is appropriate.
5. Prior to the hearing, the Secretary agreed to vacate Citation No. 6291640.

G. CENT 2006-203-M, Plant 2.
1. On October 5, 2005, Inspector James W. Timmons issued Citation No. 6321288

under section 104(d)(l) of the Mine Act alleging a violation of section 56.14100(c). (Ex. G-42).
The citation alleges that on September 23, 2005, foreman J. Benedict instructed T. Larson to
move a lime pile with the IH 530 front-end loader. The service brakes on the loader were not
functional and when the engine failed the loader rolled down a ramp, hit the guard rail at the
creek crossing and dropped about six feet on its side into the creek. The citation alleges that Mr.
Benedict knew that the brakes were not working and that Mr. Clift had told him to take the
loader out of service. The inspector determined that an injury was highly likely and that any
injury was likely to be fatal. He determined that the violation was S&S and that the negligence
was high. The safety standard provides that "when defects make continued operation hazardous
to persons, the defective items including self-propelled mobile equipment shall be taken out of
service and placed in a designated area ... or [tagged out]." The Secretary proposes a penalty of
$1,500.00 for this citation.
Inspector Timmons testified that he inspected Plant 2 because of a hazard complaint that
was filed with MSHA. (Tr. 660; Ex. G-39). The hazard complaint stated that there had been a
loader accident at the mine on September 23. Kenneth Nelson handed the inspector its accident
investigation report after he showed him the hazard complaint. (Ex. G-40). This accident report
listed Jeff Benedict as the foreman. Apparently, Mr. Larson raised the loader's bucket into the
air while he was on the ramp, the motor failed, and the loader ran down the ramp, over the
guardrail, and into a dry creek bed because the service brakes were not working. Larson was
taken to the hospital and was diagnosed with severe bruises. (Tr. 665). The company's accident
report states that Benedict ordered Larson to operate the loader. As stated above, the mine
superintendent had ordered Benedict to take this loader out of service prior to the accident.
Richard Andres, a company mechanic, told Inspector Timmons that there was no brake fluid in
the brake fluid reservoir, the main air tank was full of water, and there was an air leak in the
compressor. (Tr. 669). Larson had worked as a haul truck driver at the quarry for about 30 days.
(Tr. 676).

30 FMSHRC 287

For the reasons set forth above, Inspector Timmons testified that the violation was S&S.
{Tr. 676-78). He designated the violation as an unwarrantable failure because the company knew
that the brakes were defective and, through Mr. Benedict, allowed it to be operated by an
inexperienced loader operator. {Tr. 678-80). Mr. Benedict told Inspector Timmons that he was
the foreman at the plant. {Tr. 721 ).
Kenneth Nelson testified that he prepared the company's accident report. {Tr. 825; Ex.
G-40). Jeff Benedict had given Larson some informal training on the loader prior to the accident.
{Tr. 828). Foreman Patrick Clift testified that he was not aware that Lawson was going to
operate the loader on the day of the accident. {Tr. 839). Jeff Benedict, in the presence of Clift,
asked the mechanic, Jason Schmidt, if he had time to look at the loader because the brakes on the
loader were not working properly. Schmidt had to work on some equipment at another plant so
Clift told Benedict not to use the loader. {Tr. 840-41, 872-74). When Clift heard about the
accident he was surprised Larson had been operating the loader because he had told Benedict not
to use it. Clift had not given Benedict authority to assign Larson to the loader. {Tr. 842). Larson
had not been task trained on the loader. {Tr. 876). Clift testified that he was the foreman of
Plants 2 and 4 at the time of the accident. He is always available to employees at the plants on
the company's cell phone, which he carries at all times.
Nelson Quarries argues that Mr. Benedict did not meet the Commission's multi-factor
test used to determine whether someone is an agent of a mine operator. Its arguments are similar
to the arguments it made concerning Messrs. Andres and Head. Benedict was an hourly
employee who could not hire, fire, discipline or assign equipment to employees. Mr. Nelson
states that he was not well versed on the legal implications of using the term foreman for a
person who functions as a lead man. In addition, Mr. Clift testified that he specifically instructed
Benedict to remove the loader from service and keep it parked until the brakes could be repaired
by the mechanic. Thus, Nelson Quarries complied with the regulation but the lead man, acting
on his own, ignored the instructions of his supervisor and placed the loader into service. As a
consequence, Mr. Benedict is responsible for the accident, not the company. The company did
all that it could to prevent the accident. It asks that the citation be modified to a section 104(a)
citation with low negligence.
The Secretary makes the same arguments that she did with respect to the previous
unwarrantable failure citations. She notes that Mr. Benedict represented himself as a
representative of management during the inspection and no person in a more senior position with
Nelson Quarries disputed Benedict's authority with MSHA inspectors. Indeed, the company had
previously designated Benedict as the person in charge on the legal identity form it filed with
MSHA. In the accident report drafted by Kenneth Nelson, Mr. Benedict is identified as the
foreman who "had [Larson] run the loader to move the lime pile on the north side of the plant to
the stockpile." (Ex. G-40). Regardless of the title used for Mr. Benedict, it is clear that he told
Larson to operate the loader that day, which indicates that Benedict had the authority to direct the
workforce.

30 FMSHRC 288

I find that Benedict was the agent of Nelson Quarries when he directed Larson to operate
the front-end loader on the day of the accident. Benedict had been delegated authority to direct
the workforce. There is no dispute that the safety standard was violated. I find that the Secretary
established that the violation was S&S. Unwarrantable failure is characterized by "intentional
misconduct," "reckless disregard," "indifference," or "a serious lack of reasonable care."
Although Benedict functioned as the company's agent, it is clear that Benedict's supervisor told
him not to use the loader. I credit the testimony of Mr. Clift that he was with company mechanic
Schmidt, who was at the quarry to work on another piece of equipment the day before the
accident, when Benedict came up to tell them that he had "parked the loader because the brakes
had not been working." {Tr. 840, 873-74). Because Schmidt did not have time to work on the
loader at that time, Clift instructed Benedict not to use the loader until Schmidt had a chance to
work on it. Clift was an agent of Nelson Quarries too, of course. Nevertheless, Nelson Quarries,
acting through Mr. Benedict, directed Larson to operate the subject loader. This action
demonstrated a serious lack of reasonable care. As a consequence, I find that the Secretary
established that the violation was a result of the company's unwarrantable failure to comply with
the safety standard.
Given that the company's agent disregarded the instruction of his supervisor, I find that
its negligence was not as high as it would have otherwise been. Benedict was disciplined for
ordering Larson to operate the loader. (Tr. 860). A penalty of $800.00 is appropriate.
2. On February 24, 2005, Inspector Timmons issued Citation No. 6290517 alleging a
violation of section 56.14109. (Ex. G-43). The citation alleges that there was no guard along the
impact belt and that the belt rollers were exposed next to the stairs to the crusher cab. Inspector
Timmons determined that an injury was reasonably likely and that any injury would likely be
permanently disabling. He determined that the violation was S&S and that the negligence was
moderate. The safety standard provides, in part, that unguarded conveyors next to travelways
shall be equipped with a stop cord or with railings that are positioned to prevent persons from
falling against the conveyor. The Secretary proposes a penalty of $177 .00 for this citation.
Inspector Timmons testified that stairs leading to the cab for the crusher were right next
to the conveyor. The railing on the stairs only guarded part of the conveyor. {Tr. 682-86). A
railing must be positioned to prevent a person from falling onto or against the conveyor. {Tr.
723). There was no stop cord present and there was nothing present to prevent accidental contact
with the conveyor. He determined that the violation was S&S because the crusher operator or
anyone else entering or exiting the cab for the crusher was exposed to the hazard. If anyone were
to trip or stumble and fall into the conveyor structure, they would be seriously injured. (Tr. 68788).
Mr. Clift testified that the stairway into the crusher cab had been in the same location
from the beginning. The same configuration is used whenever the plant is moved to a new
location. (Tr. 845). The plant has been inspected by MSHA many times and the condition cited
by Inspector Timmons had never been cited in the past.

30 FMSHRC 289

Section 56.14109 contains two requirements which must be satisfied before the standard
applies. The belt must be next to a "travelway" and the belt must be "unguarded." A travelway
is defined in 56.14000 as a "passage, walk, or way regularly used or designated for persons to go
from one place to another." The stairway to the crusher cab was immediately adjacent to the belt.
The handrails for these stairs acted as a railing when a miner was on the stairs. In approaching
this stairway, a miner would need to momentarily walk alongside a small portion of the impact
belt to reach the first step. (Ex. G-43d). As a consequence, I find that the belt was next to the
travelway at that location. In this instance, it was clear that the impact belt was unguarded at the
bottom of the stairway to the crusher cab. (Compare, Nolichuckey Sand Company, Inc., 22
FMSHRC 1057 (Sept. 2000)). The belt was at a level that posed a hazard to miners. There was
no rail or stop cord for the belt. There were rocks and tripping hazards in the area. There was
nothing to keep miners from falling into the moving belt.
I find that the Secretary established an S&S violation of the safety standard. Miners walk
up into the crusher cab on a regular basis while the belt is running. The tripping and stumbling
hazards were obvious. A miner's arm or clothing could become entangled in the belt rollers and
pull the miner into the pinch point. (See, for example, Asphalt Paving, 27 FMSHRC 123 (Feb.
2005) (ALJ)). It is reasonably likely that this violation would contribute to an injury of a
reasonably serious nature.
Nelson Quarries argues that the citation should be vacated because the plant has been
inspected by MSHA many times and the condition cited by Inspector Timmons had never been
cited in the past. I reject this argument. The standard is clear on its face as it applies to the facts
in this case. The cited conveyor belt was not guarded where it was next to a travelway. As a
consequence it was required to be equipped with a stop cord or railings. As a consequence, the
reasonable prudent test does not apply. In addition, the Secretary has published notices
informing the regulated community of its interpretation of the standard. In its Guide to
Equipment Guarding, MSHA advised the mining community that conveyors located at the level
of a miner's torso must be provided with a guard or stop cord. (Tr. 683; Ex. G-6c, pp. 12-13).
The fact that the condition had never been cited does not change that fact. A penalty of$100.00
is appropriate for this violation.
3. On February 24, 2005, Inspector Timmons issued Citation No. 6290516 alleging a
violation of section 56.14107(a). (Ex. G-44). The citation alleges that there was no guard on the
back side of the V-belt and pulley for the surge hopper. Inspector Timmons determined that an
injury was unlikely but that any injury would likely be permanently disabling. He determined
that the violation was not S&S and that the negligence was moderate. The Secretary proposes a
penalty of $60.00 for this,citation.
Inspector Timmons testified that the exposed opening was about five feet above the
ground. (Tr. 688-92). Although the surge hopper was not in operation at the time of the
inspection it had been operating earlier in the week and would always be operating when the

30 FMSHRC 290

crusher was in use. The "oil filling spout or plug" was near the unguarded area. (Tr. 691). He
determined that the violation was not S&S.
Clift testified that the cited area has never been guarded by the company and has never
been cited. (Tr. 846). It has been in this condition for many years. There are no grease fittings
near the moving parts. (Tr. 848). The oil plug mentioned by the inspector cannot be opened
while the equipment is operating because oil would fly out all over the miner who opened it. Id.
I find that the Secretary established a violation. The unguarded opening presents an
obvious hazard. I take into consideration the fact that the area had never been cited when
considering the negligence criterion. Although MSHA may have never cited this particular Vbelt and pulley, the agency has consistently required such belts and pulleys to be guarded. It
clearly fits within the scope of the safety standard. I find that the operator's negligence and the
gravity to be low. A penalty of $40.00 is appropriate.
4. On February 24, 2005, Inspector Timmons issued Citation No. 6290520 alleging a
violation of section 56.14132(a). (Ex. G-45). The citation alleges that the manually operated
horn on the Caterpillar haul truck was not working. Inspector Timmons determined that an
injury was unlikely but that any injury would likely result in lost workdays or restricted duty. He
determined that the violation was not S&S and that the negligence was moderate. The Secretary
proposes a penalty of $60.00 for this citation.
Inspector Timmons testified that the cited truck would be used when the plant was in
operation. (Tr. 693). The horn would be needed to give a warning. The truck would be used to
haul material from the pit to the plant. (Tr. 695). The plant was not operating at the time of the
inspection because it was being set up. (Tr. 728-29). At the time of the inspection, only part of
the plant was operating. Clift testified that he truck was only used occasionally. (Tr. 850).
The Secretary established a violation. The gravity was low because the truck was only
used occasionally and the negligence was low because the plant was being set up in a new
location. A penalty of$40.00 is appropriate.
5. On February 24, 2005, Inspector Timmons issued Citation No. 6290521 alleging a
violation of section 56.141 OO(b). (Ex. G-46). The citation alleges that the outriggers on the
Drott-2500 crane were not maintained in a proper condition in that the electrical system in the
cab was not functional. A person must craw1 under the crane when it is running to manually
push the valves that operate the outriggers. Inspector Timmons determined that an injury was
unlikely but that any injury would likely be permanently disabling. He determined that the
violation was not S&S and that the negligence was moderate. The Secretzj proposes a penalty
of $60.00 for this citation.
Inspector Timmons testified that the outriggers could not be extended from the cab of the
crane. (Tr. 697). The crane had last been used two days before the citation was written. The
30 FMSHRC 291

outriggers must be extended before the crane can be used. Going under the crane to extend the
outriggers while the crane is turned on creates a hazard in the event the crane were to roll. (Tr.
699-703, 739). The inspector did not see any wheel chocks in the area. He considered the cited
condition to be a defect that affected safety and it was not corrected in a timely manner. The
parking brakes and service brakes on the crane were working. (Tr. 732).
Clift testified that the crane was not used very frequently. It was used for heavy work,
such as setting a secondary crusher. (Tr. 851 ). The operator was instructed to never leave the
cab of the crane while the outriggers were being extended. Two men would be on the ground,
one under the crane to operate the hydraulics and another at the corner, in plain view of the
operator in the cab, to direct the work. Clift said that he was always present when the crane was
used. {Tr. 853).
The Secretary established a violation. The operator was aware of this safety defect. The
fact that the operator used other methods to ensure the safety of miners mitigates the gravity to a
certain degree. A penalty of$60.00 is appropriate.
6. On February 24, 2005, Inspector Timmons issued Citation No. 6290522 alleging a
violation of section 56.14132{a). {Ex. G-47). The citation alleges that backup alarm on the
Michigan L-320 front-end loader was not working. Inspector Timmons determined that an injury
was unlikely but that any injury would likely result in lost workdays or restricted duty. He
determined that the violation was not S&S and that the negligence was moderate. The.Secretary
proposes a penalty of $60.00 for this citation.
Inspector Timmons testified that the loader was equipped with a backup alarm but it was
not working. (Tr. 705-07). When he asked an employee to back up the loader, the alarm did not
work. The loader was used on a regular basis at the plant to load haul trucks at the pit and also to
load customers' trucks. The loader had an obstructed view to the rear.
Clift testified that this loader is never used to load customer trucks because it is too big.
(Tr. 854). In addition, the loader is rarely used and is subjected to a pre-shift examination before
it is used. Another similar loader was used more frequently. (Tr. 855).
This loader was parked and ready for use. It would have been subjected to a pre-shift
examination before it was used. I credit Mr. Clift's testimony that it was never used to load
customer trucks and that it is not used as often as the other loader. The backup alarm was not
maintained in a functional condition. I find that the Secretary established a violation but that the
gravity and negligence was low. A penalty of $40.00 is appropriate.
7. On February 24, 2005, Inspector Timmons issued Citation No. 6290523 alleging a
violation of section 56.141 OO(b). (Ex. G-48). The citation alleges that the windshield wipers on
the Michigan L320 front-end loader were not working. Inspector Timmons determined that an
injury was unlikely but that any injury would result in lost workdays or restricted duty. He

30 FMSHRC 292

determined that the violation was not S&S and that the negligence was moderate. The Secretary
proposes a penalty of $60.00 for this citation.
Inspector Timmons testified that the wipers were not working on the loader. {Tr. 70811 ). He considers wipers to be safety equipment because in inclement weather and dusty
conditions, wipers improve the visibility for the equipment operator. The condition was not
corrected in a timely manner because the loader had been used with inoperable wipers. The
operator's visibility would especially be impaired in fog, rain, and snow. This is the same loader
cited above. Clift' s testimony with respect to this citation is the same. The loader had been
parked for month. {Tr. 856).
I affirm this citation but find that the gravity and negligence was low. A penalty of
$40.00 is appropriate.
8. On February 24, 2005, Inspector Timmons issued Citation No. 6290524 alleging a
violation of section 56.6132(a)(4). (Ex. G-49). The citation alleges that the lid of the high
explosives magazine had exposed steel on the inside because the wood liner was missing. High
explosives were in the magazine. Inspector Timmons determined that an injury was unlikely but
that any injury would likely be fatal. He determined that the violation was not S&S and that the
negligence was moderate. The safety standard provides that magazines shall be "made of nonsparking material on the inside." The Secretary proposes a penalty of $60.00 for this citation.
Inspector Timmons testified that the wood liner had been removed and was sitting off to
the side. {Tr. 711-15). The liner was dirty and dusty, which led the inspector to conclude that
the violative condition had existed for at least a few days. He found about eight sticks ofTorpex,
which is a high explosive, in the magazine.
Mr. Clift testified that the magazine was for the storage of detonators, not high

explosives. {Tr. 856-57). At the time the citation was issued, an independent contractor was
performing blasting work at the plant.
I affirm the citation and find that a penalty of $60.00 is appropriate.

9. On October 5, 2005, Inspector Timmons issued Citation No. 6321289 alleging a
violation of section 56.14100(b). (Ex. G-50). The citation alleges that the headlights on the
Komatsu 210-M haul truck were not working. The truck was in use hauling rock. Inspector
Timmons determined that an injury was unlikely but that any injury would result in lost
workdays or restricted duty. He determined that the violation was not S&S and that the
negligence was moderate. The Secretary proposes a penalty of $60.00 for this citation.
Inspector Timmons testified that the truck is used to transport rock at the plant. {Tr. 71619). Headlights affect safety because the plant operates when it is still dark. Clift testified that,

30 FMSHRC 293

although the company fixes broken headlights, he does not consider a broken light to be a "safety
defect." (Tr. 859).
I find that broken lights are a defect that affects safety. The citation is affirmed and a
penalty of $60.00 is appropriate.
10. On November 22, 2005, Inspector Dye issued Citation No. 6291667 alleging a
violation of section 46.7(a). (Ex. G-51). The citation alleges that Travis Larson was not given
adequate task training on the International Huff payloader (front-end loader) in which he had no
previous work experience. Inspector Dye determined that an injury was reasonably likely and
that any injury would likely be fatal. He determined that the violation was S&S and that the
negligence was moderate. The safety standard provides that task training must be provided to
any miner who is assigned to a new task in which he has no previous work experience. The
Secretary proposes a penalty of $165.00 for this citation.
Inspector Dye was at the plant to determine if Mr. Larson had been adequately trained to
operate the front-end loader at the time of his accident, as discussed above. (Tr. 744). Larson
had been hired by Nelson Quarries as a haul truck driver. He had not held any other positions at
the plant. (Tr. 745). The controls for a truck and payloader are different and the operator
performs a different type of work on each. (Tr. 747). When Inspector Dye interviewed
management and hourly employees at the plant, nobody suggested that Larson had been tasktrained on the loader. (Tr. 749). Larson's new miner training record shows that he was trained
for haul truck operations. (Tr. 753-54; Ex. G-5ld, p. 1). A letter dated December 7, 2005 from
Patrick Clift to Inspector Dye also states that Larson had not been task trained to operate a loader.
(Tr.750-51, 762-63; Ex. G-51c). Inspector Dye believed that it was reasonably likely that a
serious injury would result because Larson had not been trained to operate the loader before he
used it.
Clift testified that Mr. Benedict did not have the authority to assign Larson to operate the
loader. Benedict was disciplined for ordering Larson to operate the loader. (Tr. 860). I affirm
this citation. I have already determined that Mr. Benedict was the agent of Nelson Quarries when
he ordered Mr. Larson to operate the loader. It is clear that Larson had not been task- trained.
There is no evidence that Larson had ever operated a loader before. The violation is S&S
because it was reasonably likely that the hazard contributed to by the violation would have
resulted in an injury of a reasonably serious nature. Because Benedict ordered Larson to operate
the loader against the instructions of his supervisor, I find that the negligence should be reduced.
A penalty of $100.00 is appropriate.
11. On November 15, 2005, Inspector Barrington issued Citation No. 6317446 alleging a
violation of section 56.12040. (Ex. G-52). The citation alleges that operating controls in the
distribution boxes in the motor control center were installed in such a way that they could not be
operated without the danger of contact with energized conductors and terminals. Inspector
Barrington determined that an injury was reasonably likely and that any injury would likely be
30 FMSHRC 294

fatal. He determined that the violation was S&S and that the negligence was moderate. The
safety standard provides that operating controls be installed so that they can be operated without
the danger of contact with energized conductors. The Secretary proposes a penalty of $165 .00
for this citation.
Inspector Barrington testified that the electrical system was not energized at the time of
his inspection. The electrical system was 480-volt phase-to-phase applied with 277-volt phaseto-ground that was furnished by a diesel generator. (Tr. 765). When the distribution box was
opened, the circuit breakers and other components of the electrical circuits were fully exposed.
(Tr. 766-72; Exs. G-52c through Ex. G-52i). The violation presented a significant burn, shock,
and electrocution hazard to anyone who entered the motor control center. The crusher is
operated from a stop-start button at a different location. (Tr. 815). All of the electrical controls
were inside cabinets, which were all closed at the time of the inspection. Management advised
Inspector Barrington that power to the motor control traileris cut off before any work is
performed in the trailer. (Tr. 816).

Mr. Clift testified that all of the electrical components were inside of cabinets in the
motor control room. This control room is off limits to employees and they are trained not to
enter the area. (Tr. 860). The control room is usually kept locked, but it was not locked on the
day of the inspection because the generator had not been started. (Tr. 889). The motor control
room has been in use for about 15 years in the same condition and it has never been cited by
MSHA. Indeed, another inspector required the company to improve the grounding system, so he
was aware of the condition of the electrical cabinets. The crusher is not operated from this
control room. (Tr. 862). The plant is shut down and locked out whenever any work is performed
in the control room.
It is important to understand that Nelson Quarries' facilities had never been inspected by
an MSHA electrical inspector because the Topeka, Kansas, office is not staffed with an electrical
inspector. The hazard complaint filed with MSHA alleged that the "electricity is bad on all
plants." (Ex. G-11). As a consequence, MSHA brought in a electrical inspector from its Salt
Lake City office to inspect all the plants for compliance with the Secretary's electrical standards.
This citation is one of many that Inspector Barrington issued. The photographs he took show that
when the doors to the electrical cabinets were opened, all of the electrical components were
exposed. (Exs. G-52c - 52i). Typically, electrical components are protected from accidental
contact within the cabinet.

I find that the Secretary established a violation. Anyone who opened the cabinets faced a
risk of an electric shock hazard. The wires and terminals for the circuit breakers were totally
exposed. Circuit breakers are operating controls. The fact that the company had never been cited
for this condition simply reflects that fact that its plants had never been subject to an electrical
inspection.

30 FMSHRC 295

I find that the Secretary did not establish that the violation was S&S. The crusher is not
operated from this trailer as the start-stop button is at a different location. The trailer is kept
locked when the plant is operating and only authorized persons may enter the trailer. The plant is
shut down and locked out whenever any work is performed in the control room. A penalty of
$100.00 is appropriate.
12. On November 15, 2005, Inspector Barrington issued Citation No. 6317432 alleging a
violation of section 56.14107(a). (Ex. G-53). The citation alleges that the alternator and drive
belt on the Caterpillar 769C haul truck were not guarded to prevent contact. Inspector Barrington
determined that an injury was unlikely and that any injury would likely be permanently disabling.
He determined that the violation was not S&S and that the negligence was moderate. The
Secretary proposes a penalty of $60.00 for this citation.
Inspector Barrington testified that the violation was on the left side of the engine
compartment on the truck near the cooling fan. If anyone were to check the area looking for oil
leaks or air leaks on the compressor when the engine was running could become entangled in the
moving parts. (Tr. 778). The cited pulleys were near the middle of the engine. (Tr. 818).
The truck is serviced at the front from the top. (Tr. 864). Clift testified that the truck has
been previously inspected by MSHA. Michael Peres testified that on previous inspections, one
MSHA inspector (Dustin Crelly) told him that recessed alternator belts need not be guarded on
trucks where the fluids are checked from the top as miners were not exposed to the hazard. (Tr.
891). Truck engines are too loud to hang around them when they are running unless you have a
specific reason to be there. (Tr. 894). Inspector Crelly denied making such statements. (Tr.
920).
I find that the Secretary established a violation. Alternator and drive belts on haul trucks
are required to be guarded. I agree with Peres that the violation was not very serious because the
chance of accidental contact was not very great. I credit Inspector Crelly' s testimony that he
never advised the company that recessed belts are not required to be guarded. A penalty of
$60.00 is appropriate.
13. On November 16, 2005, Inspector Barrington issued Citation No. 6317440 alleging a
violation of section 56.11002. (Ex. G-54). The citation alleges that safe access was not provided
to the fuel check port on the 7200 gallon fuel tank. Inspector Barrington determined that an
injury was unlikely and that any injury would likely be fatal. He determined that the violation
was not S&S and that the negligence was moderate. The safety standard provides "crossovers,
elevated walkways, elevated ramps, and stairways shall be of substantial construction provided
with handrails, and maintained in good condition." The Secretary proposes a penalty of $60.00
for this citation.
Inspector Barrington testified that there were stairs to the top of the horizontal tank but
that a miner would have to walk along the top of the tank to check the fuel level. (Tr. 807-10;
30 FMSHRC 296

Bxs. G-54c and 54d). There were no handrails along the top of the tank, which was a rounded
surface. A miner went to the top of the tank monthly to check the fuel level. It was ten feet to
the ground from the top of the fuel tank.
I find that the Secretary established a violation. The Secretary has not defined the term
"walkway." Nevertheless, it can be defined as a "passage for walking." See, Summit, Inc., 13
FMSHRC 1511, 1517 (Sept. 1991) (ALJ). It was not disputed that a miner walks on top of the
fuel tank once a month to check the fuel level. The top of a fuel tank has been construed as a
"walkway" under similar circumstances. Thor Mining Co., 2 FMSHRC 1592, 1598 (June 1980)
(ALJ). Handrails were not provided. A penalty of$60.00 is appropriate.

14. On November 16, 2005, Inspector Barrington issued Citation No. 6317442 alleging a
violation of section 56.11002. (Ex. G-55). The citation alleges that the handrails on the stairway
leading up into the generator trailer were not being properly maintained. Inspector Barrington
determined that an injury was unlikely and that any injury would likely result in lost workdays or
restricted duty. He determined that the violation was not S&S and that the negligence was
moderate. The Secretary proposes a penalty of $60.00 for this citation.
Inspector Barrington testified that once per shift someone would enter the generator
trailer to start the generator. Barrington testified that he was with MSHA Inspector Tedesco
during this inspection. When Tedesco walked up the cited stairway the handrail came apart in
his hand and he stumbled off the stairs. (Tr. 812-13, 819). The coupler holding the metal parts
together had pieces missing. Mr. Clift testified that the condition was not obvious because the
pieces were still together.
This citation is affirmed. I find that the negligence should be reduced because the defect
was hidden. A penalty of $40.00 is appropriate.
15. Prior to the hearing, the Secretary agreed to vacate Citation Nos. 6317429, 4317430,
6317436, 6317437, and 6317438. Nelson Quarries agreed to withdraw its contest of Citation No.
6317441.
H. CENT 2006-204-M, Plant 2.

1. On February 24, 2005, Inspector Timmons issued Citation No. 6290519 alleging a
violation of section 56.14101(a)(3). (Ex. G-56). The citation alleges that the park brake on the
Dresser Haul pack truck was not maintained in working condition. Inspector Timmons
determined that an injury was unlikely but that any injury would likely be permanently disabling.
He determined that the violation was not S&S and that the negligence was moderate. The safety
standard provides that braking systems installed on equipment shall be maintained in functional
condition. The Secretary proposes a penalty of $60.00 for this citation.

30 FMSHRC 297

Inspector Timmons testified that the truck rolled when he had a miner test the park brake.
(Tr. 904). The truck was empty. The truck had been used on the previous day and the driver told
the inspector that the park brake had been working. The service brakes were working on this
truck. (Tr. 907). Michael Peres testified that, because the park brake had worked the day before,
it must have become inoperable the morning of the inspection. (Tr. 1023).
There is no dispute that the park brake was not working when tested. It is apparent,
however, that the brake had been functioning the previous day and it is likely that it became
inoperable during the shift. The operator's negligence is quite low. See, Higman Sand & Gravel,
25 FMSHRC 175, 181 (April 2003) (ALJ). A penalty of $10.00 is appropriate.
2. Prior to the hearing, the Secretary agreed to vacate Citation Nos. 6317431 and
6317433.

I. CENT 2006-206-M, Plant 4.
1. On November 15, 2005, Inspector Crelly issued Citation No. 6291248 alleging a
violation of section 56.6130(a). (Ex. G-74). The citation alleges that there was a stick of
Boostrite stored on the shelf in the crusher shack, which is occupied by the crusher operator
about ten hours a day. Inspector Crelly determined that an injury was reasonably likely and that
any injury would likely be fatal. He determined that the violation was S&S and that the
negligence was moderate. The Secretary proposes a penalty of $24 7. 00 for this citation.

Inspector Crelly testified that Travis Tomlinson, the crusher operator, stored the explosive
material in the crusher shack. (Tr. 951 ). Shotshell primers were on the same shelf Id.
Shotshell primers are a type of detonator that initiates a blasting cap to detonate explosives.
Primers should never be stored with explosives. Inspector Crelly observed Tomlinson smoking
in the area. Crelly concluded that if these conditions were to continue it was reasonably likely
that a fatal accident would occur. (Tr. 953-54). The crusher shack was about five feet wide and
six feet long. No shock tube was in the crusher shack. (Tr. 1017).
Peres testified that the shotshell primers are not detonators. (Tr. 1045). He said that a
blasting cap or other detonator would be required to shoot off the Boostrite. Shot shells are not
required to be stored in an explosives magazine. People store them in their homes. (Tr. 1073).
At the quarry, shot shells are sometimes put in the dynamite magazine.
The inspector cited the company for having the Boostrite stored in the crusher shack.
Although the presence of the Shotshell primers may have added to the danger, it was the
presence of the explosive material that created the safety hazard. In addition, the manufacturer of
shotshell primers warns that they are subject to mass detonation and that they are sensitive to
"impact, friction, heat, flame, static electricity and mishandling abuses." (Ex. G-140 p. 4. The
manufacturer also advises that smoking should not be permitted around primers. Id. I find that
the Secretary established a violation because the Boostrite was not stored in a magazine. The

30 FMSHRC 298

violation was S&S and serious. I find that a violation of $500.00 is appropriate for this violation
because of the serious nature of the cited condition.
2. · On November 17, 2005, Inspector Barrington issued Citation No. 6317458 alleging a
violation of section 56.12001. (Ex. G-75). The citation alleges that the power cords attached to
the load side of the Cutler Hammer line starter were not properly protected against excessive
overload by the heater coils. Inspector Barrington determined that an injury was reasonably
likely and that any injury would likely be fatal. He determined that the violation was S&S and
that the negligence was moderate.· The safety standard provides that circuits shall be protected
against excessive overload by fuses or circuit breakers of the correct type and capacity. The
Secretary proposes a penalty of $247.00 for this citation.
Inspector Barrington testified that the three heater coils were not of the type specified by
the manufacturer. (Tr. 1086-88). The amperage on the coils was oversized for the conditions. If
there were to be an overload in a circuit, there would be a potential for arcing at the overload
relay. The components could melt due to the high temperatures. Miners working at the plant
were exposed to the hazard. The circuit would not open quickly enough to prevent the current
from traveling to other areas in the plant along metal components. (Tr. 1090, 1097-98, 1104-05).
Fuses and circuit breakers are designed for overcurrent conditions and thermal protection devices
are for overload. (Tr. 1100).
I affirm this citation in all respects. A penalty of $250.00 is appropriate.
3. On November 16, 2005, Inspector Barrington issued Citation No. 6317453 alleging a
violation of section 56.12001. (Ex. G-76). The citation alleges that the phase wires between the
90 amp breaker and the Siemens line starter was not of the proper size and current carrying
capacity. The citation further states that the No. 1 phase had "two wires in between the terminals
of the breaker to the line starter estimated to be number 12 AWG." Inspector Barrington
determined that an injury was unlikely but that any injury would likely be fatal. He determined
that the violation was not S&S and that the negligence was moderate. The Secretary proposes a
penalty of $60.00 for this citation.
During his inspection, the inspector noticed that the phase conductors between the
breaker and a line starter were not all of the same size. The subject line starter is in the motor
control center. It is 480 volts phase-to-phase and 277 volts phase-to-ground. (Tr. 1091). All of
the wires should have been 6 AWG under the National Electrical Code and other reference
materials. (Tr. 1094-97; Ex. G-75d). At the hearing, he testified that the two wires that were of
concern to him appeared to be about a size 10 and together they did not match up to the "same
value in wiring as the size 6 would have." (Tr. 1092). If there were a short ·circuit or a ground
fault, it would bypass the overload protection in the line starter would likely burn up two wires
before the breaker tripped. Ken Nelson testified that the company never buys A WG Gage No. 12
wire. (Tr. 1111 ). The inspector assumed that the mine was using that size wire and based his
citation on that assumption.

30 FMSHRC 299

In the citation, the inspector stated that the cited wiring appeared to be size 12, but at the
hearing he referenced size 10. The company contends that it does not purchase size 12, but it
admitted that it buys No. 10 wire. (Tr. 1111 ). The inspector calculated that the cited wires were
too small to provide adequate protection and that AWG 6 wire would have been appropriate. 4
(Tr. 1094-99). I credit Inspector Barrington's testimony because of his electrical expertise. I
affirm the citation and the proposed penalty of $60.00.
4. Prior to the hearing, Nelson Quarries agreed to withdraw its contest of Citation No.
6291249.

J. CENT 2006-207-M, Plant 3.
1. On June 28, 2005, Inspector Timmons issued Citation No. 6290611 alleging a
violation of section 56.14132(a). (Ex. G-77). The citation alleges that the horn on the Caterpillar
haul truck No. 36 was not maintained in working condition. Inspector Timmons determined that
an injury was unlikely but that any injury would likely be permanently disabling. He determined
that the violation was not S&S and that the negligence was moderate. The Secretary proposes a
penalty of $60.00 for this citation.

The parties agreed that I should base my decision on this citation on the evidence
presented with respect to Citation No. 6290520. Based on that evidence, I find that the Secretary
established a non-S&S violation of the safety standard with low negligence. A penalty of$40.00
is appropriate.
2. On June 28, 2005, Inspector Timmons issued Citation No. 6290612 alleging a
violation of section 56.14132(a). (Ex. G-78). The citation alleges that the horn on the Volvo
330-D front-end loader was not maintained in working condition. The loader was in use at the
time of the inspection. Inspector Timmons determined that an injury was unlikely but that any
injury would likely be permanently disabling. He determined that the violation was not S&S and
that the negligence was moderate. The Secretary proposes a penalty of $60. 00 for this citation.
The parties agreed that I should base my decision on this citation on the evidence
presented with respect to Citation No. 6290520. Based on that evidence, I find that the Secretary
established a non-S&S violation of the safety standard. A penalty of $60.00 is appropriate.
3. Prior to the hearing, Nelson Quarries withdrew its contest of Citation No. 6290614
and it agreed to pay the proposed penalty for Citation No. 6290615 at the hearing. (Tr. 1145).

K CENT 2006-208-M, Plant 3.

4

The smaller the AWG number, the larger the wire.
30 FMSHRC 300

1. On June 28, 2005, Inspector Timmons issued Citation No. 6290622 alleging a
violation of section 56.5001(a)/5005. (Ex. G-80). The citation alleges that Caterpillar haul truck
operator J. Hillbrand was exposed to a shift-weighted average of 1.40 mg/m3 of respirable silica
bearing dust. This reading exceeded the Threshold Limit Value of 1.25 mg/m3 times the error
factor. Respiratory protection was not being used and a respiratory protection program was not
in place. Inspector Timmons determined that an injury was reasonably likely and that any injury
would likely be permanently disabling. He determined that the violation was S&S and that the
negligence was moderate. The health standard provides, in part, that "exposure to airborne
contaminates shall not exceed, on the basis of a time weighted average, the threshold limit values
adopted by the American Conference of Governmental Industrial Hygienists .... " Section
56.5005 provides, in part, that when "engineering control measures have not been developed or
when necessary by the nature of the work involved ... , employees may work for reasonable
periods of time in concentrations of airborne contaminates exceeding permissible levels if they
are protected by appropriate respiratory protective equipment." The Secretary proposes a penalty
of $749.00 for this citation.
Inspector Timmons testified that a silica dust survey had not been conducted at the plant
for at least five years. (Tr. 1115). He sampled five miners. He used his normal sampling
protocol. The samples were analyzed at MSHA's laboratory using its normal testing protocol.
The results showed that Mr. Hillbrand was overexposed (Tr. 1130-31; Ex. G-80d). The company
violated both safety standards because the test results showed that Hillbrand was overexposed
and there were no administrative or engineering controls in place to deal with situations where
miners were overexposed. (Tr. 1133-34). The truck that Hillbrand was driving did not have airconditioning and the windows were down. Nelson Quarries had not conducted their own dust
sampling at the quarry. He designated the citation as S&S because whenever there is an
overexposure of silica-bearing dust and the employee is not subject to any administrative or
engineering controls, such as wearing a fit-tested respirator, it is reasonably likely that the
employee will develop a respirable illness of a reasonably serious nature. Inspector Timmons
also testified that it was his understanding that Hillbrand was in the development area hauling
dirt from the top of the highwall. {Tr. 1138). He was driving in dirty dusty areas.
Ken Nelson testified that he had no knowledge that anyone working at his quarries were
overexposed to silica-bearing dust. (Tr. 1142). Dust sampling had never been performed at the
plant. When this citation was issued, he took the truck out of service until air-conditioning was
installed. Air-conditioning was installed in other trucks as well. He also immediately assigned
Mr. Hillbrand to work in areas that, based on MSHA testing, were not as dusty.
MSHA is permitted to issue citations based on a single-shift silica dust survey. I reach
this conclusion based on the Commission's decision in Asarco, Inc., 17 FMSHRC 1 (1995), and
former Commission Administrative Law Judge Maurer's subsequent analysis in Asarco, Inc., 19
FMSHRC 1097, 1130-1136 (1997). Based on the evidence presented, Judge Maurer concluded
that "MSHA's use of single-shift sampling is a reasonable means of ascertaining, to the requisite
degree of accuracy, whether the enforcement concentration level standard in section 57.5001(a)

30 FMSHRC 301

has been exceeded." Id. at 1136. See Excel Mining, LLC., 22 FMSHRC 318, 319-20 (Mar.
2000) ("We have held that the legal basis for rejecting the use of single-shift sampling in coal
mines does not apply to metal/non-metal mines."). See also Sec '.Y ofLabor v. Excel Mining,
LLC, 334 F.3d 1 (DC Cir. 2003).
I find that the Secretary established a violation. It is important to note that the company
had not been doing its own silica-dust sampling. Nelson Quarries was not using any
administrative or engineering controls to protect the truck driver from the dust.
The violation contributed to a discrete health hazard. I also find that the evidence
establishes that there was a reasonable likelihood that the hazard contributed to by the violation
would result in an illness of a reasonably serious nature. As stated above, Hillbrand was
overexposed to silica dust. The roadways were not being watered, the windows on the truck
were down, Hillbrand was not wearing a respirator, and administrative controls were not being
used. Nelson Quarries did not have in place a program for monitoring the exposure to silica dust
so it had no way of knowing whether anyone was being overexposed. Taking into consideration
continuing mining operations, I find that the violation was S&S and serious. A penalty of
$750.00 is appropriate.
2. On November 2, 2005, Inspector Dye issued Citation No. 6291604 alleging a violation
of section 56.14107(a). (Ex. G-81). The citation alleges that the alternator belt on the Caterpillar
96B loader was not guarded to prevent persons from becoming entangled in the moving machine
parts. Inspector Dye determined that an injury was unlikely and that any injury would likely be
fatal. She determined that the violation was not S&S and that the negligence was moderate. The
Secretary proposes a penalty of $60.00 for this citation.
The parties agreed that I should base my decision on this citation on the evidence
presented with respect to Citation No. 6317432. Based on that evidence, I find that the Secretary
established a non-S&S violation of the safety standard. Alternator belts on loaders are required
to be guarded, but the violation was not serious because the chance of accidental contact was not
very great. A penalty of $60.00 is appropriate.
3. On November 2, 2005, Inspector Dye issued Citation No. 6291611 alleging a violation
of section 56.12006. (Ex. G-82). The citation alleges that the motor control center "controlling
35 motors from 14 distribution boxes in the electrical trailer was not provided with separate
disconnecting devices for each branch circuit." Inspector Dye determined that an injury was
unlikely and that any injury would likely be fatal. She determined that the violation was not S&S
and that the negligence was moderate. The Secretary proposes a penalty of $60 .00 for this
citation.
The parties agreed that I should base my decision on this citation on the evidence
presented with respect to Citation No. 6317445. Based on that evidence, set forth below, I find
that the Secretary established a non-S&S violation of the safety standard. As stated below, it is
30 FMSHRC 302

clear from the regulation that each branch circuit is required to have its own disconnecting
device. Circuit breakers or plugs are typically used as disconnecting devices. A penalty of
$60.00 is appropriate.
L. CENT 2006-228-M, Plant 2.

1. On November 15, 2005, Inspector Barrington issued Citation No. 6317 444 alleging a
violation of section 56.12001. (Ex. G-104). The citation alleges that the 10/4 AWG, SO-type
power cord was not properly protected against overload by the Square D circuit breaker.
Inspector Barrington determined that an injury was reasonably likely and that any injury would
likely be fatal. He determined that the violation was S&S and that the negligence was moderate.
The Secretary proposes a penalty of$247.00 for this citation.
Inspector Barrington testified the No. 10 AWG wire of a four conductor cable coming off
the bottom of a 70-amp breaker did not meet the requirements ofthe safety standard. (Tr. 1148).
The circuit was 480 volts phase-to-phase and 227 volts phase-to-ground. The power was not on.
The wire was rated for 30 amps but the breaker was rated for 70 amps. Thus, there was
insufficient overload protection on the circuit. A 70-amp breaker is not of the correct type and
capacity for a No. 10 wire. The wiring would overheat and fault out before the breaker would
trip. (Tr. 1152). The fault would likely travel through metal components of the equipment at the
quarry. (Tr. 1152-53). The installation did not meet the requirements of the National Electrical
Code. (Tr. 1228-30).
I find that the Secretary established a violation and that the violation was S&S. The
circuit was not adequately protected. It was reasonably likely that the hazard contributed to by
the violation would result in a serious injury given continued mining operations. A penalty of
$250.00 is. appropriate.

2. On November 15, 2005, Inspector Barrington issued Citation No. 6317445 alleging a
violation of section 56.12006. (Ex. G-105). The citation alleges that the distribution box
mounted in the motor control center for the screening and crushing plant was not provided with a
disconnecting device for each branch circuit. Inspector Barrington determined that an injury was
reasonably likely and that any injury would likely be fatal. He determined that the violation was
S&S and that the negligence was moderate. The safety standard provides that distribution boxes
be provided with a disconnecting device for each branch circuit and that the disconnecting
devices be designed so that it can be determined by visual observation whether the circuit is
energized. The Secretary proposes a penalty of $24 7.00 for this citation.
Inspector Barrington testified that there were two circuits coming off the distribution box
from one breaker. (Tr. 1184-86, Ex. G-105c). He stated that the violation was obvious. The
standard required that each circuit be isolated with its own disconnecting device. There were
separate thermal protection devices for each circuit, each with its own starting buttons. (Tr.
1231 ). Miners were exposed to the hazard because the circuits could not be isolated.
30 FMSHRC 303

Mr. Peres testified that the National Electrical Code allowed the configuration of circuits
that were present at the quarry. (Tr. 1256). The two pieces of equipment (the cone return and the
521 conveyor) could be run independently and they each had their own start button.
It is clear from the regulation that each branch circuit is required to have its own
disconnecting device. Circuit breakers or plugs are typically used as disconnecting devices. The
circuit breaker in question controlled two branch circuits. (See, PPM Part 56/57.12006). The
fact that the piece of equipment on each circuit had their own stop/start button does not obviate
this requirement. Each circuit must have its own visible disconnecting device. This violation
was obvious. (Ex. G-105c). I find that the Secretary established a violation. I also credit
Inspector Barrington' s testimony concerning the hazards created by this violation and I find that
the violation was S&S. A penalty of$250.00 is appropriate.

3. On November 15, 2005, Inspector Barrington issued Citation No. 6317443 alleging a
violation of section 56.12018. (Ex. G-106). The citation alleges that the principal power
switches were not all labeled to show which units they controlled. Inspector Barrington
determined that an injury was not reasonably likely but that any injury would likely be fatal. He
determined that the violation was not S&S and that the negligence was moderate. The safety
standard required that principal power switches be labeled to show which units they control
unless identification can be made readily by location. The Secretary proposes a penalty of $60.00
for this citation.
Barrington testified that the company had numbers posted on the covers for the
distribution boxes but they did not all match up with what was in the field. (Tr. 1190, 1236,
1251). The labels were not on or near the breakers but were on the outside of the doors for the
distribution boxes. It would have been easy to open the incorrect breaker when attempting to
perform repairs on a piece of electrical equipment. Proper identification is especially important
in an emergency situation. (Tr. 1192, 1196). Mr. Peres testified that the labels on the outside of
the panels are kept up to date. (Tr. 1258).
I credit the testimony of Inspector Barrington. The citation is affirmed and a penalty of
$60.00 is assessed.

4. On November 15, 2005, Inspector Barrington issued Citation No. 6317447 alleging a
violation of section 56.12008. (Ex. G-107). The citation alleges that the cable for the 503 short
belt was pulled from the electrical enclosure through the entrance gland exposing the phase and
ground conductors. Inspector Barrington determined that an injury was not reasonably likely but
that any injury would likely be fatal. He determined that the violation was not S&S and that the
negligence was moderate. The safety standard provides, in part, that cables shall enter metal
frames of electrical components only through proper fittings. The Secretary proposes a penalty
of $60.00 for this citation.

30 FMSHRC 304

The inspector testified that the cables for one of the conveyors had pulled through the
bushing and was hanging by the phase conductors. (Tr. 1196-98; Ex. G-107c). The outer jacket
had pulled out of the fitting. The inspector did not know how long the condition existed. (Tr.
1240). The insulation around the conductors had not yet been damaged.
This citation is affirmed as a non-S&S violation. A penalty of $60.00 is appropriate.
5. On November 16, 2005, fuspector Barrington issued Citation No. 6317450 alleging a
violation of section 56.12008. (Ex. G-108). The citation alleges that the three wires entering the
top of the power bus box were not adequately insulated. fuspector Barrington determined that an
injury was not reasonably likely but that any injury would likely be fatal. He determined that the
violation was not S&S and that the negligence was moderate. The Secretary proposes a penalty
of $60.00 for this citation.
The inspector testified that the metal openings were bushed but the wires entering the box
through the bushings did not have outer jackets. (Tr. 1202; Ex. G-108d). The jacket had been
stripped back so that the wires could fit through the openings. Because the bushings were not
insulated, but were metal, the installation did not meet the requirements of the standard. The
insulation on the wires had not been damaged. Mr. Peres testified that the mine wraps electrical
tape around the wires where they pass through the bushing to provide the required insulation.
(Tr. 1260).
Electrical tape is no substitute for an adequate bushing and there is no proof that electrical
tape was present in this installation. The Secretary established a violation and the proposed
penalty of$60.00 is appropriate.
6. On November 16, 2005, fuspector Barrington issued Citation No. 6317449 alleging a
violation of section 56.12025. (Ex. G-102). The citation alleges that the grounding system on
the IC bin conveyor was not maintained as required. When tested, the grounding system
measured 75 ohms to ground. fuspector Barrington determined that an injury was reasonably
likely and that any injury would likely be fatal. He determined that the violation was S&S and
that the negligence was moderate. The Secretary proposes a penalty of $247.00 for this citation.
fuspector Barrington testified that when he tested the ground for the conveyor using a
Triplett analog meter, he determined that the resistance in the grounding wire was sufficiently
high that.it would not trip the breakers it was serving. (Tr. 1208, 1210). He used his standard
procedure when testing the grounding system. (Tr. 1246-48). Richard Tedesco helped him
perform the test. (Tr. 1234). The impedance was too high given the size of the grounding wire
to carry the current back to the breaker. The company's testing records did not indicate that there
was any problem with the grounding system. (Tr. 1232). The violation was S&S because the
likelihood of someone getting injured was high. (Tr. 1216).

30 FMSHRC 305

Mr. Peres testified that he performs the annual continuity and earth ground tests at all five
plants. (Tr. 1261). When a ground wire shows resistance, it is usually because of dirt or
corrosion at a connection point. Testing the ground wire can be tricky and he sometimes gets
false readings. When he gets a better connection with the meter, the ground wire has always
passed the annual test. If the test is performed by someone who lacks experience, a false reading
can easily be obtained. (Tr. 1263). He is not aware of any problems that fuspector Barrington
had when he checked the grounding systems at the plant. (Tr. 1169). A reading of 73 ohms, if
the test were performed correctly, would show a problem with the grounding wire.

I find that the Secretary established an S&S violation of the safety standard. I credit the
inspector's testimony that he correctly tested the grounding system. Although corrosion may
have created the problem, the hazard was still present and serious. It was reasonably likely that
someone would be injured or electrocuted if the condition were not corrected. A penalty of
$250.00 is appropriate taking into consideration the penalty criteria.
7. On November 16, 2005, fuspector Barrington issued Citation No. 6317448 alleging a
violation of section 56.12025. (Ex. G-103). The citation alleges that the grounding system on
the El Jay screen conveyor was not maintained as required. When tested, the grounding system
measured 9 ohms to ground. fuspector Barrington determined that an injury was unlikely but that
any injury would likely be fatal. He determined that the violation was not S&S and that the
negligence was moderate. The Secretary proposes a penalty of $60.00 for this citation.
The circumstances that led fuspector Barrington to issue this citation were similar to those
in the previous citation. (Tr. 1222-23). For the same reasons, I affirm the citation and assess a
penalty of $60.00.
8. The Secretary agreed to vacate Citation No. 6317428.

M. CENT 2006-229-M, Plants 1 and 3.
1. On November 21, 2005, fuspector Barrington issued Citation No. 6317462 alleging a
violation of section 56.12008. (Ex. G-109). The citation alleges that the cables entering the
bottom metal frame of the motor control enclosure were not provided with proper fittings. There
were 16 cables entering the enclosure and 4 of them were not properly bushed. fuspector
Barrington determined that an injury was unlikely but that any injury would likely be fatal. He
determined that the violation was not S&S and that the negligence was moderate. The Secretary
proposes a penalty of $60.00 for this citation.

fuspector Barrington testified that four of the 480-volt cables were not properly bushed.
(Tr. 1303). The motor control center was subject to vibration because it was in the same trailer
as the generator. The sharp edges of the box could have cut into the cables and the cables could
otherwise loosen. (Tr. 1306). Mr. Peres testified that this citation was actually issued at Plant 1,
as was Citation No. 6317463.

30 FMSHRC 306

I affirm this citation based on Inspector Barrington's testimony. A penalty of $60.00 is
appropriate.

2. On November 21, 2005, Inspector Barrington issued Citation No. 6317463 alleging a
violation of section 56.12032. (Ex. G-110). The citation alleges that the inspection plates on the
110 volt breaker were not secured as required. Inspector Barrington determined that an injury
was unlikely but that any injury would likely be fatal. He determined that the violation was not
S&S and that the negligence was moderate. The safety standard provides that inspection and
cover plates on electrical equipment and junction boxes shall be kept in place except for testing
or repairs. The Secretary proposes a penalty of $60.00 for this citation.
Inspector Barrington testified that as he was inspecting the area he bumped the breaker
box and the cover fell off. (Tr. 1311). Mr. Peres testified that the plant had not been in operation
for three months. (Tr. 1368).
I find that the Secretary established a violation. The violation was not serious and the
company's negligence was low. A penalty of $40.00 is appropriate.
3. On November 2, 2005, Inspector Dye issued Citation No. 6291597 alleging a violation
of section 56.9315. (Ex. G-111 ). The citation alleges that there was visible dust coming from
the plant, exposing persons to low visibility hazards. Inspector Dye determined that an injury
was reasonably likely and that any injury would likely result in lost workdays or restricted duty.
She determined that the violation was S&S and that the negligence was moderate. The safety
standard provides that dust must be controlled at muck piles, material transfer piles, crushers and
on haulage roads where hazards to persons could be created by impaired visibility. The Secretary
proposes a penalty of $165.00 for this citation.
Inspector Dye testified that as she was driving down the county road, she could see dust
coming off the plant. {Tr. 1278). The plant was "engulfed in dust." (Exs. G-11 lc and 11 ld).
The wind was blowing 25 miles per hour that day. The company did not have a water truck at
the plant and water sprays were not installed at the crusher or along the conveyors. The haulage
trucks did not have their headlights on. The company shut down the plant soon after the MSHA
inspectors arrived and the dusty conditions abated. Mine operators that use dust control
measures are able to greatly reduce the amount of dust produced in windy conditions. (Tr. 1185).
The inspector believes that the dusty conditions created visibility hazards as well as a potential
health hazard to employees. She determined that the violation was S&S because it was
reasonably likely that trucks operating at the plant would be involved in an accident. The
company submitted and implemented a dust control plan to abate the citation.
Mr. Peres testified that the plant was shut down soon after the inspectors arrived because
the wind had picked up. (Tr. 1361). He had previously called Mr. Nelson to ask him about the
weather forecast and to tell him that the plant may need to shut down. Peres said that he did not

30 FMSHRC 307

know that MSHA was onsite when he made the decision to shut down the plant. He understands
that the wind had picked up to a sustained speed of 35 mph with gusts even higher. It was not as
windy earlier in the day and there were no visibility problems. (Tr. 1363). The plant is
frequently shut down when it gets too windy. Peres said that the roadways are normally kept wet
by using haul trucks and loaders to spread water along the roads.
I credit the testimony of Mr. Peres and I vacate this citation. He testified that he shuts
down a plant if it becomes too windy and dusty.
N. CENT 2006-230-M, Plant 4.
1. On November 16, 2005, Inspector Crelly issued Citation No. 6291253 alleging a
violation of section 56.3200. (Ex. G-112). The citation alleges that the faces in the pit had not
been scaled. The faces were about 30 to 35 feet high on the north side and 40 feet high on the
south side. There was loose and unconsolidated material on both sides of the pit. Inspector
Crelly determined that an injury was reasonably likely and that any injury would likely be fatal.
The citation was subsequently amended to show that an accident was unlikely and that the
violation was not S&S. The negligence was moderate. The standard provides that ground
conditions that create a hazard to persons shall be taken down or supported before other work or
travel is permitted in the area. The Secretary proposes a penalty of $60. 00 for this citation.
Inspector Crelly testified that he observed loose, unconsolidated material on the pit faces.
The pit was about 75 yards wide. (Tr. 956, 360; Ex. G-112d). He observed tire tracks eight feet
from the edge of the face. The area at the base of the face had been cleaned up. (Tr. 959). If
any of the loose material were to fall, it could strike someone under highwall. There was a sump
pump in the area. Foreman Gene Andres told the inspector that the company does not have any
equipment that can scale the highwall. Inspector Crelly believed it was too dangerous to get too
close to the face to take any measurements. (Tr. 1001 ).

Mr. Peres testified that other MSHA inspectors had advised the company that the higher
the face the further back from the face miners are prohibited from entering. (Tr. 1048-49). He
called it the 25 percent rule because you must stay back a quarter of the distance of the height.
Peres estimated that loose rock around the base of the face protruded out about 12 feet. (Tr.
1075). He further testified that there were no loose rocks along the face in the areas where rocks
at the base had been removed with a loader. Nelson Quarries admitted during discovery that
there was loose and unconsolidated material on the north side of the pit and that no scaling had
been performed. (Tr. 1078-79; Ex. G-138). Scaling is not required if access to the area below
the face is limited or blocked. (Tr. 1081 ).
Mr. Andres testified that the loader tracks that the inspector observed were at least 13 feet
away from the toe of the highwall. (Tr. 1162). The water pump was at least 40 feet from the
highwall. Andres also testified that there was a trackhoe that was large enough to reach 30 feet
up the wall but that the mine does not rely on scaling. Scaling would put the operator of the
30 FMSHRC 308

equipment in the zone of danger from falling rock. (Tr. 1170). Instead, barriers or berms are
used to keep people away. (Tr. 1167, 1172). The company leaves some of the rock at the face to
be removed during the next cycle.
I agree with Nelson Quarries that the safety standard does not require scaling. The
standard requires that ground conditions that create a hazard to persons be taken down before
work is performed in the affected area. During discovery, Nelson Quarries admitted that there
was "loose and unconsolidated material on the north face of' its pit. (Ex. G-138). The issue is
whether the loose, unconsolidated material presented a hazard to persons. The company
contends that rock at the base of the highwall blocked entry to anyone below this loose material.
The MSHA's photographs are consistent with the testimony of Andres and Peres. I credit the
testimony of Andres and Peres with respect to this citation. Rock at the base of the highwall
provided a sufficient barrier and the loose material did not pose a hazard to the workers at the
time of the inspection. Under the PPM, a mine operator is permitted to use piles of muck or
large boulders to keep miners out from under highwalls. As a consequence, I vacate this citation.
It bears noting that Nelson Quarries must ensure that there are berms or sufficient rock under any
loose or unconsolidated material on the highwall to keep miners out of the zone of danger. It
must comply with the requirements of sections 56.3130, 56.3131, and 56. 3200 at all times.
Scaling must be performed if miners must work or travel under unconsolidated material on
highwalls.
2. On November 16, 2005, Inspector Crelly issued Citation No. 6291257 alleging a
violation of section 56.14100(b). (Ex. G-113). The citation alleges that the bottom step on the
Caterpillar 988F front end loader was missing. Inspector Crelly determined that an injury was
reasonably likely and that any injury would likely be permanently disabling. The citation was
later modified to show that an accident was unlikely and that the citation was not S&S. The
negligence was moderate. The Secretary proposes a penalty of $60. 00 for this citation.
Crelly testified that the bottom step was missing. (Tr. 966). The existing bottom step
was 3 7 inches above the ground. The loader operator could slip and fall either ascending or
descending the steps. The condition had existed for some time and the loader is used on a
regular basis. Mr. Andres estimated that, with the missing step, the bottom step was about 31 or
32 inches from the ground. (Tr. 1164).
I find that the missing ladder rung did not present a safety hazard. Anyone entering the
loader could use the handrails for support. The chance of an injury is remote at best. This
citation is vacated.
3. On November 16, 2005, Inspector Crelly issued Citation No. 6291259 alleging a
violation of section 56.11001. (Ex. G-114). The citation alleges that safe access was not
provided to the walkway on the 615 screen. A wire stand was being used to climb up to the
walkway and over the handrail. Inspector Crelly determined that an injury was reasonably likely
and that any injury would likely be fatal. The citation was later modified to show that an

30 FMSHRC 309

accident was unlikely and that the citation was not S&S. The negligence was moderate. The
safety standard provides that safe access must be provided to all working places. The Secretary
proposes a penalty of $60.00 for this citation.
The inspector testified that the company was using a metal stand, which was not intended
to be used as a ladder, to climb up onto the 615 screen. (Tr. 970; Ex. G-114c). Employees had
to climb over the handrail once they were at the top, which was about ten feet above the ground.
He estimated that employees accessed the walkway a few times a week. The walkway is a
working place because miners must stand on the walkway while performing maintenance and
inspecting the screen. Mr. Andres told the inspector that employees got to the walkway via the
metal stand, but the inspector did not see anyone using this metal stand. (Tr. 973, 1004).
Peres testified that there was a ladder for employees to use to gain access to the screen.
This ladder is shown in exhibit G-130c. {Tr. 1050-51). There are also other portable ladders on
the property that are used to go up on the screen. He was not aware that anyone used the wire
stand to get up onto the screen. Mr Andres testified that there were ladders available to access
the screen. {Tr. 116).
The ladder referred to by Mr. Peres was tied to the frame of the screen and would not be
easy to move. Although there may have been other ladders available, I credit Inspector Crelly's
testimony that Mr. Andres told him employees use the wire stand. As stated above, I find that
Mr. Andres was an agent of the operator. He had knowledge that miners were using the wire
stand to get onto the screen. The citation is affirmed and a penalty of $60.00 is assessed.

0. CENT 2006-231-M, Plant 3.
On November 21, 2005, Inspector Barrington issued Citation No. 6317461 alleging a
violation of section 56.12040. (Ex. G-115). The citation alleges, in part, that the operating
controls inside the motor distribution box were installed so that they could not be operated
without danger of contact with energized conductors and related terminals. After a conference, it
was determined that an injury was unlikely but that any injury would likely be fatal. The
negligence was moderate. The Secretary proposes a penalty of $60. 00 for this citation.
The parties agreed that I should base my decision on this citation on the evidence
presented with respect to Citation No. 6317446. Based on that evidence, I find that the Secretary
established a non-S&S violation of the safety standard. The wires and terminals for the circuit
breakers were totally exposed. Circuit breakers are operating controls. The fact that the
company had never been cited for this condition simply reflects that fact that its plants had never
been subject to an electrical inspection. The violation was not S&S because the plant is shut
down and locked out whenever any work is performed. A penalty of $60.00 is appropriate.

P. CENT 2006-233-M, Plant 4.

30 FMSHRC 310

1. On November 17, 2005, Inspector Barrington issued Citation No. 6317455 alleging a
violation of section 56.12025. (Ex. G-116). The citation alleges that the grounding system on
the 540 conveyor was not properly maintained. The grounding system measured 2.5 ohms to
ground. After a conference, it was determined that an injury was unlikely but that any injury
would likely be fatal. The negligence was moderate. The Secretary proposes a penalty of $60.00
for this citation.
Inspector Barrington testified that one of the company's employees helped with the
testing. (Tr. 1315). His testimony with respect to this citation was the same as with other
citations alleging a problem with a grounding system. It would take the breaker seconds or
maybe minutes to trip in these circumstances. (Tr. 1344). Someone would have to be touching
the metal :framework of the equipment for an injury to occur. The previous testimony of Mr.
Peres also applies to this citation. He testified that it would only take about a half a second for
the breaker to trip with a resistance of only 2.5 ohms. (Tr. 1371).
For the reasons discussed above with respect to the other grounding citations issued under
section 56.12025, this citation is affirmed. A penalty of $60.00 is assessed.
2. On November 17, 2005, Inspector Barrington issued Citation No. 6317457 alleging a
violation of section 56.12025. (Ex. G-117). The citation alleges that the grounding system on
the 509 conveyor was not properly maintained. The grounding system measured 1.5 ohms to
ground. After a conference, it was determined that an injury was unlikely but that any injury
would likely be fatal. The negligence was moderate. The Secretary proposes a penalty of $60.00
for this citation.
Inspector Barrington's testimony with respect to this citation was the same as with other
citations alleging a problem with a grounding system. (Tr. 1317, 1345-46). As a general matter
corrosion often causes grounding systems to failthe continuity test. Mr. Peres testified that he
performs the annual continuity and earth ground tests. (Tr. 1368). He also retests the grounding
systems anytime the plant is moved, a motor is replaced, or any equipment is moved. A reading
of2.5 ohms is a very low resistance to ground. The condition was corrected by cleaning the
terminals to remove corrosion. (Tr. 1370).
For the reasons discussed above with respect to the other grounding citations issued under
section 56.12025, this citation is affirmed. A penalty of$60.00 is assessed.
3. On November 16, 2005, Inspector Barrington issued Citation No. 6317452 alleging a
· violation of section 56.12002. (Ex. G-118). The citation alleges that the control breakers
mounted in the distribution boxes in the motor control center were not properly installed in that
vibration from the generator had backed the mounting screws out, making it difficult to reset the
breaker. After a conference, it was determined that an injury was unlikely but that any injury
would likely be fatal. The negligence was moderate. The safety standard provides, in part, that

30 FMSHRC 311

switches and controls for electric circuits shall be properly installed. The Secretary proposes a
penalty of $60.00 for this citation.
The inspector testified that the condition was obvious. (Tr. 1322-23; Ex. G-l 18c). The
breaker assembly was secured by only one screw so it would move if anyone were required to
reset the breaker. A miner would have to hold it with one hand while resetting the switch, which
would expose the miner to an electric shock hazard. (Tr. 1325-26). Miners do not use the
breakers to turn the equipment on and off. (Tr. 1349). He does not know how often the breaker
must be reset.
Mr. Peres testified that access to the motor control centers at the plants of Nelson
Quarries is restricted. Padlocks are often placed on the doors when a plant is in operation; (Tr.
1371 ). The only people allowed in the motor control trailer when the plant is operating are the
leadman and himself. Repairs are performed when the generator is shut down. Breakers rarely
kick off.
I find that the Secretary established a violation. The gravity was low because the breakers
are infrequently used and access to the trailer was limited. I find that a penalty of $40.00 is
appropriate.
4. On November 21, 2005, Inspector Barrington issued Citation No. 6317454 alleging a
violation of section 56.12040. (Ex. G-119). The citation alleges, in part, that the operating
controls inside the distribution boxes in the motor control room were installed so that they could
not be operated without danger of contact with energized conductors and related terminals. After
a conference, it was determined that an injury was unlikely but that any injury would likely be
fatal. The negligence was moderate. The Secretary proposes a penalty of $60.00 for this citation.
The parties agreed that I should base my decision on this citation on the evidence
presented with respect to Citation No. 6317446. Based on that evidence, I find that the Secretary
established a non-S&S violation of the safety standard. The wires and terminals for the circuit
breakers were totally exposed. Circuit breakers are operating controls. The fact that the
company had never been cited for this condition simply reflects that fact that its plants had never
been subject to an electrical inspection. A penalty of $60.00 is appropriate.
Q. CENT 2006-237-M, Plant 4.
l. On November 16, 2005, Inspector Crelly issued Citation No. 6291254 alleging a
violation of section 56.3130. (Ex. G-129). The citation alleges that the mining methods used in
the pit were not compatible with the type and size of the equipment used. The face was about 30
to 35 feet high on the north side of the pit and about 40 high on the south side. None of the
equipment at the mine could reach more that 25 feet up the face. Inspector Crelly determined
that an injury was reasonably likely and that any injury would likely be fatal. He determined that
the violation was S&S and that the negligence was moderate. The safety standard provides, in

30 FMSHRC 312

part, that mining methods shall be used that will maintain wall, bank, and slope stability in places
were people work or travel. The Secretary proposes a penalty of $247.00 for this citation.
fuspector Crelly testified that Mr. Andres told him that the company did not have any
equipment that could be used to scale the rock face. (Tr. 974). There were no benches along the
highwall. The inspector said that, to comply with the standard, the company must bench the area
or barricade the area around the foot of the highwall so that <lllY falling rock would not hit
anyone. (Tr. 975). The company could also scale the face, but they did not have any equipment
that could be used for such purposes. fustead, the company drilled and then shot the area. The
inspector admitted that scaling is not mandatory. (Tr.1007-08). He designated this citation as
S&S because miners are in the pit every day operating the loader and other equipment. These
miners are frequently within a few feet of the face. Although pedestrians were not common,
someone could be out of a vehicle checking the water pump.
Mr. Peres testified that there was a Hitachi trackhoe that can reach up to 40 feet to scale a
face. (Tr. 1054-55). A rammer can be attached to use for scaling. The quarry also keeps men
and machinery back from the toe of the face. The company's evidence with respect to this
citation is the same as it was for the related citation (No. 6291253) alleging a violation of section
56.3200.
I vacate this citation for the same reasons I vacated Citation No. 6291253. I find that the
Secretary did not establish that miners worked or traveled under unstable highwalls. I note,
however, that the company must either scale down loose and unconsolidated material or it must
ensure that berms or rock are present to keep miners out of the zone of danger.
2. On November 16, 2005, fuspector Crelly issued Citation No. 6291260 alleging a
violation of section 56.11003. (Ex. G-130). The citation alleges that the ladder on the southwest
side of the 615 screen was not maintained in safe condition. fuspector Crelly determined that an
injury was reasonably likely and that any injury would likely be fatal. He determined that the
violation was S&S and that the negligence was moderate. The safety standard provides that
ladders shall be of substantial construction and maintained in good condition. The Secretary
proposes a penalty of $247.00 for this citation.
The inspector testified that the ladder was about eight feet tall and had holes in the rail
that were about two by two inches. The ladder is used to access the second layer of screens. (Tr.
979). The hole is where a rung used to be. The ladder was of substantial construction but it was
not maintained in good condition because it was bent and it had a hole in it. fuspector Crelly
testified that if the ladder continued to be used, it was reasonably likely that someone would
suffer a serious or fatal injury. (Tr. 981 ). The ladder was tied off in place. (Tr. 982, 1015).
Peres testified that the ladder was strong enough to hold a man. (Tr. 1056-57). The holes
in the sides of the ladder were above the last rung used by miners so the holes were not subjected
to the weight of miners using the ladder. Andres agreed with Peres. (Tr. 1182).

30 FMSHRC 313

I find that the citation should be vacated. The holes were where a rung used to be and
they were not as large as the inspector believed. The holes were above any area where miners
would put their weight. (Ex. G-130c ). The ladder was of substantial construction and was in
good enough condition for its intended use. It was secured in place and it did not present a safety
hazard.
3. On November 16, 2005, fuspector Crelly issued Citation No. 6291266 alleging a
violation of section 56.11001. (Ex. G-131 ). The citation alleges that safe access was not
provided to the south side of the main generator trailer in that a piece of sheet metal that was 21
inches wide was being used as a walkway into the trailer that was about 4 feet above the ground.
fuspector Crelly determined that an injury was reasonably likely and that any injury would likely
be permanently disabling. He determined that the violation was S&S and that the negligence was
moderate. The Secretary proposes a penalty of $203.00 for this citation.
The inspector testified that the sheet metal was a quarter of an inch thick, about 21 inches
wide, and six feet long. (Tr. 983; Ex. G-131 c). This piece of metal was not designed for this
purpose and it did not provide safe access. He testified that he did not know why people would
be entering the trailer at this location because there was another door provided. That door had
stairs with handrails. He saw Mr. Andres use the cited entrance. He believes that the violation
was S&S because someone could stumble and fall while walking on the sheet metal. The cited
door was the back door to the trailer near the radiator of the generator.
Peres testified that the entrance to the generator trailer is on the side. That entrance has a
stairway with handrails. The piece of metal cited by the inspector was there because two
employees at the quarry had a pet cat at the mine site. (Tr. 1061-62). The cat slept near the
generator because it was warm. These employees put the sheet metal by the generator to make it
easier for the cat to get into the trailer. He never saw anybody using this "catwalk." (Tr. 1080).
Mr. Andres denied that he ever walked or stepped on the sheet metal. (Tr. 1168). It was very
muddy the day of the inspection with the result that mud would have been on the sheet metal if
anyone had walked on it.
I credit the witnesses of Nelson Quarries on this citation. The photograph shows that the
piece of sheet metal was not a means of access for miners to enter the trailer. (Ex. G-131 c ). The
company provided safe access via the stairs. I vacate this citation.
4. On November 17, 2005, fuspector Barrington issued Citation No. 6317459 alleging a
violation of section 56.12025. (Ex. G-132). The citation alleges that the grounding system on
the 509 conveyor was not properly maintained. The grounding circuit was open when tested with
an ohmmeter. fuspector Barrington determined that an injury was reasonably likely and that any
injury would be fatal. The citation was designated as S&S and the negligence was moderate.
The Secretary proposes a penalty of $247.00 for this citation.

30 FMSHRC 314

The inspector testified that the grounding circuit was open (disconnected) so that there
was no ground at all. (Tr. 1319). He determined that the violation was S&S because it was
reasonably likely that someone would be seriously injured in the event of a fault in the 480 volt
system.
For the reasons discussed above with respect to the other grounding citations issued under
section 56.12025, this citation is affirmed. A penalty of $250.00 is appropriate.
5. On November 17, 2005, Inspector Barrington issued Citation No. 6317460 alleging a
violation of section 56.12004. (Ex. G-133). The citation alleges that the insulation on the feeder
cable to the 30 amp Westinghouse breaker and Cutler Hammer line starter was damaged from
excessive heat. The copper conductor was exposed in places. Inspector Barrington determined
that an injury was unlikely but that any injury would be fatal. The citation was designated as
non-S&S and the negligence was moderate. The Secretary proposes a penalty of $60.00 for this
citation.
Inspector Barrington testified that it appeared that the insulation had been damaged by
excessive heat. (Tr. 1329; Ex. G-133e). Mr. Peres believes that the insulation was chipped when
the wire was moved at some point. (Tr. 1375).
I affirm the citation. Copper wire was visible whether the insulation was damaged by
heat or it was chipped off. A penalty of $60.00 is appropriate.
6. On November 17, 2005, Inspector Barrington issued Citation No. 6317456 alleging a
violation of section 56.12008 .. (Ex. G-134). The citation alleges that the feeder cable for the No.
14 distribution box entered through a compression bushing that was not properly maintained.
The gland locking nut had vibrated loose and was hanging from the leads. Inspector Barrington
determined that an injury was unlikely but that any injury would be fatal. The citation was
designated as non-S&S and the negligence was moderate. The Secretary proposes a penalty of
$60.00 for this citation.
The inspector testified that .the locking nut was hanging loose. (Tr. 1333-35;.Ex. G134c). The bushing was metal and he was concerned that vibration could wear down the
insulation on the conductors without the nut in place. Peres testified that the bushing provided
protection without the lock nut in place. (Tr. 1376).
The locking nut helps keep the cables in place and prevents vibration from damaging the
insulation on the conductors. There is no indication that the insulation had been damaged. I find
that the Secretary established a violation, but it was not serious. A penalty of $40.00 is
appropriate.
7. On November 17, 2005, Inspector Barrington issued Citation No. 6317451 alleging a
violation of section 56.141 OO(b ). (Ex. G-135). The citation alleges that the housing on the
30 FMSHRC 315

Cummins generator was not maintained in good condition. The top of the housing had an open
exit gland that exposed the windings in the generator to moisture and dust. Inspector Barrington
determined that an injury was unlikely but that any injury would be fatal. The citation was
designated as non-S&S and the negligence was moderate. The Secretary proposes a penalty of
$60.00 for this citation.
Inspector Barrington testified that because of the dusty conditions, dirt, dust and moisture
could enter the opening in the housing. The internal windings could be affected creating a safety
hazard. The dust and dirt could cause the generator to get too hot. He considered the cited
condition to be a defect affecting safety. (Tr. 1336-39, 1341; Ex. G-135d). The generator was
not operating at the time of his inspection. Mr. Peres testified that when the generator is
operating, air is forced out of the hole by the cooling fan so any dust present would be blown out.
(Tr. 1377).
The standard requires that any defects that affect safety be corrected in a timely manner to
prevent the creation of a hazard to persons. I find that the Secretary did not establish that the
opening was a defect that affected safety. The generator was in a trailer and there was no proof
that dust and dirt would enter the hole or damage the windings in any way. This citation is
vacated.
8. On November 17, 2005, Inspector Barrington issued Citation No. 6317456 alleging a
violation of section 56.12025. (Ex. G-132). The citation alleges that the grounding system on
the 207 bin conveyor was not maintained as required. When tested, the grounding system was
open. Inspector Barrington determined that an injury was unlikely but that any injury would
likely be fatal. He determined that the violation was S&S and that the negligence was moderate.
The Secretary proposes a penalty of $247.00 for this citation.
The parties agreed that I should base my decision on this citation on the evidence
presented with respect to Citation Nos. 6317464 and 6317465. I find that the Secretary
established an S&S violation of the safety standard. I credit the inspector's testimony that he
correctly tested the grounding systems during his inspections. Although corrosion may have
created the problem, the hazard was still present and serious. It was reasonably likely that
someone would be injured or electrocuted ifthe condition were not corrected. A penalty of
$250.00 is appropriate.

II. APPROPRIATE CIVIL PENALTIES
Section l lO(i) of the Mine Act sets out six criteria to be considered in determining
appropriate civil penalties. Plant 1 had a history of 12 paid violations in the two years prior to
November 16, 2005, Plant 2 had a history of 5 paid violations in the two years prior to October 5,
2005, Plant 3 had a history of 6 paid violations in the two years prior to June 28, 2005, Plant 4
had a history of21 paid violations in the two years prior to November 16, 2005, and Plant 5 had
a history of 5 paid violations in the two years prior to October 26, 2005. (Ex. G-136). Most of
30 FMSHRC 316

these previous violations were non-S&S. Nelson Quarries is a rather small operator and its
quarries are small. All of the violations were abated in good faith, except as noted. 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. Ifl did not discuss
gravity or negligence with respect to a citation, then the inspector's determinations are affirmed.
Based on the penalty criteria, I find that the penalties set forth below are appropriate.

III. ORDER
Based on the criteria in section 1 lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:

Citation/Order No.

30 C.F.R. §

Penalty

56.6130(a)
56.6300(b)

$1,000.00
1,500.00

56.14112(b)
56.14100(a)
56.11002
56.20003(a)
56.14107(a)
56.18012
§109(a) of Act
56.11002
56.12025
56.12025

Vacated
Vacated
Vacated
Vacated
100.00
50.00
60.00
Vacated
500.00
500.00

56.14100(b)
56.14132(a)
56.14112(b)
56.12004
47.41(a)
56.12004

. 135.00
·60.00
Vacated
60.00
40.00
60.00

CENT 2006-151-M, Plant 4
6291250
6291251
CENT 2006-178 -M, Plant 1
6291635
6291637
6291642
6291644
6291645
6291646
6291647
6291648
6317464
6317465
CENT 2006-200-M, Plant 5
6291590
6291591
6291569
6291572
6291573
6291574

30 FMSHRC 317

6291576
6291578
6291579
6291580
6291581
6291582
6291584
6291585
6291587
6291588
6291592
6291593
6291594

56.14107(a)
56.14112(b)
56.14112(b)
56.4501
56.14107(a)
56.12004
56.14107(a)
56.20003(a)
56.610l(a)
56.4101
56.14107(a)
56.14112(b)
56.14100(b)

50.00
60.00
60.00
60.00
Vacated
60.00
50.00
60.00
60.00
40.00
60.00
60.00
60.00

56.14101(a)(2)
56.14107(a)
56.14101(a)(2)
56.9300(a)

625.00
70.00
40.00
40.00

47.41(a)
56.4104(b)
47.41(a)
56.4101
56.14107(a)

40.00
60.00
Vacated
Vacated
60.00

56.14100(c)
56.14109
56.12040
47.7(a)
56.14107(a)
56.14132(a)
56.14100(b)
56.14132(a)
56.14100(b)
56.6132(a)(4)

800.00
100.00
100.00
100.00
40.00
40.00
60.00
40.00
40.00
60.00

CENT 2006-201-M, Plant 5
6291595
6291583
6291589
6291586
CENT 2006-202-M, Plant 1
6291636
6291638
6291639
6291640
6291641
CENT 2006-203-M, Plant 2
6321288
6290517
6317446
6291667
6290516
6290520
6290521
6290522
6290523
6290524

30 FMSHRC 318

6321289
6317429
6317430
6317432
6317436
6317437
6317438
6317440
6317441
6317442

56.14 lOO(b)
56.6132(b)
56.6132(a)(6)
56.14107(a)
56.14112(a)(l)
56.14107(a)
56.14112(a)(l)
56.11002
56.4130(b)
56.11002

60.00
Vacated
Vacated
60.00
Vacated
Vacated
Vacated
60.00
60.00
40.00

56.1410l{a)(3)
56.14107(a)
56.14107(a)

10.00
Vacated
Vacated

56.6130(a)
56.12001
56.6132(a)(6)
56.12001

500.00
250.00
60.00
60.00

56.14132(a)
56.14132(a)
56.6202(b)(l)
56.14100(c)

40.00
60.00
60.00
60.00

56.5001(a)/.5005
56.14107(a)
56.12006

750.00
60.00
60.00

56.12001
56.12006
56.12025
56.12025

250.00
250.00
60.00
250.00

CENT 2006-204-M, Plant 2
6290519
6317431
6317433
CENT 2006-206-M, Plant 4
6291248
6317458
6291249
6317453
CENT 2006-207-M, Plant 3
6290611
6290612
6290614
6290615
CENT 2006-208-M, Plant 3
6290622
6291604
6291611
CENT 2006-228-M, Plant 2
6317444
6317445
6317448
6317449

30 FMSHRC 319

6317428
6317443
6317447
6317450

56.6132(a)(3)
56.12018
56.12008
56.12008

Vacated
60.00
60.00
60.00

56.9315
56.12008
56.12032

Vacated
60.00
40.00

56.3200
56.14 lOO(b)
56.11001

Vacated
Vacated
60.00

56.12040

60.00

56.12002
56.12040
56.12025
56.12025

40.00
60.00
60.00
60.00

56.3130
56.11003
56.11001
56.12025
56.14100(b)
56.12008
56.12004

Vacated
Vacated
Vacated
250.00
Vacated
40.00
60.00

TOTAL PENALTY

$11,090.00

CENT 2006-229-M, Plantl and 3
6291597
6317462
6317463
CENT 2006-230-M, Plant 4
6291253
6291257
6291259

CENT 2006-231-M, Plant 3
6317461
CENT 2006-233-M, Plant 4
6317452
6317454
6317455
6317457
CENT 2006-237-M, Plant 4
6291254
6291260
6291266
6317459
6317451
6317456
6317460

30 FMSHRC 320

Accordingly, the citations contested in these cases are AFFIRMED, MODIFIED, or
VACATED as set forth above and Nelson Quarries, Inc., is ORDERED TO PAY the Secretary
of Labor the sum of $11,090.00 within 40 days of the date of this decision. Upon payment of the
penalty, these proceedings are DISMISSED.

Richard W. Manning
Administrative Law Judge

Distribution:

Jennifer Casey, Esq., and Kristi Henes, Esq, Office of the Solicitor, U.S. Department of Labor,
1999 Broadway, Suite 1600, Denver, CO 80202 (Certified Mail)
Ronald Pennington, Conference & Litigation Representative, Mine Safety and Health
Administration, P.O. Box 25367, Denver, CO 80225-0367 (First Class 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
(Certified Mail)

RWM

30 FMSHRC 321

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

May 1, 2008
CNIL PENALTY PROCEEDING

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

Docket No. CENT 2006-237-M
A.C. No. 14-01597-77364-02

v.

Plant 4
NELSON QUARRIES, INC.,
Respondent

ORDER CORRECTING DECISION
Before:

Judge Manning

I issued my decision in this docket, along with 15 other dockets, on April 7, 2008. In this
order I am correcting two clerical errors that appear in the decision. First, in numbered paragraph
4 on page 60, the decision should be changed to reflect that Citation No. 6317459 involved the
grounding system on the 207 bin conveyor rather than the 509 conveyor. Second, numbered
paragraph 8 on page 62 and the paragraph that follows it are both in error and are hereby deleted
from the decision.

Richard W. Manning
Administrative Law Judge
Distribution:

Kristi Henes, Esq, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202
Paul M. Nelson, P.O. Box 334, Jasper, MO 64755
Kenneth L. Nelson, President, Nelson Quarries, Inc., P.O. Box 100, Gas, KS 66742-0100

30 FMSHRC 322

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

May 5, 2008
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 2006-178-M
A.C. No. 14-01477-87956

v.

Plant 1
NELSON QUARRIES, INC.,
Respondent

ORDER CORRECTING DECISION
Before:

Juqge Manning

I issued my decision in this docket, along with 15 other dockets, on April 7, 2008. In this
order I am correcting an error that appeared in the decision. fu the discussion of Citation No. 6317465 on page 19 of the decision, I described the citation as being of a significant and
substantial nature ("S&S"). fu fact, prior to the hearing, the Secretary changed the designation to
non-S&S and reduced the proposed penalty to $60.00. I hereby correct my decision to affirm the
citation as modified by the Secretary and I assess a penalty of$60.00. As a consequence, the
total penalty for this docket is reduced to $770.00 and the total penalty for all 16 dockets is
reduced to $10, 650.00.

Richard W. Manning
Administrative Law Judge
Distribution:
Kristi Henes, Esq, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202 (via facsimile and U.S. Mail)
Paul M. Nelson, P.O. Box 334, Jasper, MO 64755 (via facsimile and U.S. Mail)
Kenneth L. Nelson, President, Nelson Quarries, Inc., P.O. Box 100, Gas, KS 66742-0100

30 FMSHRC 323

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

April 30, 2008
CIVIL PENALTY PROCEEDINGS

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

Docket No. CENT 2006-184-M
A.C. No. 13-02285-90174
Docket No. CENT 2007-039-M
A.C. No. 13-02285-97606

v.

Docket No. CENT 2007-067-M
A.C. No. 13-02285-102681
Docket No. CENT 2007-091-M
A.C. No. 13-02285-104903

JEPPESEN GRAVEL,
Respondent

Jeppesen Pits

DECISION
Appearances:

Gregory W. Tronson, Esq., Office of the Solicitor, U.S. Department
of Labor, Denver, Colorado, for the Petitioner;
Jay A. Jeppesen, Owner, Jeppesen Gravel, Sibley, Iowa,
for Respondent.

Before:

Judge Manning

These cases are before me on three petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"),
against Jeppesen Gravel pursuant to sections 105 and 110 of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The cases involve 16 citations issued
by MSHA under section 104(a) of the Mine Act at the pit operated by Jeppesen Gravel. The
parties presented testimony and documentary evidence at the hearing held in Sioux City, Iowa.

I. BACKGROUND
Jay Jeppesen owns a large piece of property in Osceola County, Iowa, along the border
with Minnesota. His home is on this property and he runs several businesses from this property.
One of these businesses is Jeppesen Gravel, which he operates as the sole proprietor. The only
employee of Jeppesen Gravel is his son, Alan. Jeppesen and his son do all of the physical work
for Jeppesen Gravel. He has several areas on his property in which he digs. Sometimes he digs
material and runs it through his plant to produce gravel for sale. He also produces gravel that is
30 FMSHRC 324

not processed in any way for use as ballast under concrete. Rock that is of a uniform size is not
as important in this work. Jeppesen also digs up material used for fill. He calls these areas his
"borrow pits." He digs out material from the earth and he transports it in the same condition to
be used as fill. This material is often used in one of his other businesses.
Jeppesen testified that his gravel pit is quite small and is operated as needed. He also
does demolition work, hauls "black dirt," does grading work, snow plowing, and other similar
jobs. Jeppesen also testified that most of the material that is dug from the ground on his property
is not run through the plant, but is used as part of his demolition and building site work. (Tr.
144). For example, he uses the material from his borrow pit to fill in the basement of a structure
he has removed.
Jeppesen stated that gravel was mined by his father on this property since the early 1960s
and he took over this business years later. (Tr. 133). He has been in the gravel business for 30
years. He testified that he had never been inspected by MSHA and had never heard of MSHA
prior to the first time that MSHA Inspector William Owen first came to his operation in 2004.
(Tr. 125, 133). Jeppesen testified that when the MSHA inspectors told him he had to stop
working until they competed their inspection, he did not believe them and he did not know who
they were. Over time, he had to educate himself on MSHA requirements and this required "a lot
of change in attitude" on his part. (Tr. 126).
MSHA and Jeppesen Gravel have had a rocky relationship since that first inspection in
October 2003. A detailed account of this relationship is set forth below because several of the
citations were issued for harassing MSHA inspectors and impeding MSHA inspections.
William Owen, the supervisory inspector in MSHA's Fort Dodge, Iowa, office, testified
that MSHA first became aware of Jeppesen's operation in October 2003 when another gravel
operator in the area asked an MSHA inspector if MSHA was aware of Jeppesen's pit. (Tr. 13).
Belinda Parsons, MSHA's field service person, contacted Jay Jeppesen to set up an appointment
to meet with him so that a legal identity form could be filled out, training plans could be
established, and "the basics" could be started. (Tr. 14). When Ms. Parsons traveled to the pit at
the appointed time, nobody was there and she could not find Mr. Jeppesen. She left some written
material for him. The following day, Ms. Parsons called the pit and talked to Mrs. Jeppesen to
reschedule their appointment. Mrs. Jeppesen stated that Jeppesen Gravel was not interested in
rescheduling the appointment and that "they didn't have any need to deal with MSHA." (Tr. 15).
The following spring, Inspector Jim Hines traveled to the Jeppesen pit to talk to Mr.
Jeppesen. Mr. Jeppesen was operating. a loader when Inspector Hines arrived. Inspector Hines
told Mr. Jeppesen that he was there to get the legal identity form filled out, to start getting him
"in line with the requirements," and that MSHA would conduct a compliance assistance visit
("CAV"). (Tr. 16). At this point, Mr. Jeppesen became upset and told Hines that he was not
interested and that he did not want to do any of these things. Inspector Hines then left the area.

30 FMSHRC 325

In May 2004, Inspector Owen visited the Jeppesen pit with Inspector Jeffrey Bagwell.
The property is quite large and they did not see anyone there when they first arrived. When the
inspectors saw a truck traveling down a road in another area on the property, they got in their
vehicle and drove to where the truck had stopped. Mr. Jeppesen got out of the truck and
Inspector Owen introduced himself and told Jeppesen why he was there. Mr. Jeppesen
questioned Inspector Owen's right to be there. Jeppesen explained that he did not have any
employees and that he was exempt. Inspector Owens told Jeppesen that he was not exempt from
the requirements of the Mine Act and proceeded to explain that he needed to fill out a legal
identity report and that MSHA would perform a CAV. Inspector Owens testified that Mr.
Jeppesen became angry and asked the inspectors to leave. When Inspector Owen asked Mr.
Jeppesen ifhe was denying MSHA entry to the mine, Jeppesen replied "yes." (Tr. 21). The
inspectors then explained that it would not be in Jeppesen's best interest to deny MSHA entry to
the mine because MSHA was not going to go away. Mr. Jeppesen "became more upset" and told
the inspectors "to leave him alone and get off the property." Id. The inspectors then left the
mme.
Inspector Owen wrote up a denial of entry order and then reentered the mine to talk to
Mr. Jeppesen again to see if he would reconsider. Owen explained that he had the authority to
issue a withdrawal order that would shut down his operation. Mr. Jeppesen became angry again
and told the inspectors to get off his property. After talking to the MSHA District Office, he
waited for Mr. Jeppesen's truck on the public road at the entrance to the pit. He attempted to
serve Jeppesen with the denial of entry order. Mr. Jeppesen stopped his truck, but refused to take
the papers the inspector wanted to hand him. These papers included the order, a legal identity
report to be filled out, and other material. This paperwork was mailed to the pit the next day, but
the material came back as "denied." MSHA tried to mail this material a second time but
Jeppesen Gravel again refused to accept it.
The Department of Labor's Office of the Solicitor contacted Jeppesen Gravel to get
consent to inspect the mine. When the Solicitor's office was not successful, counsel filed an
application for a consent judgment with the United States District Court for the Northern District
of Iowa. Counsel was apparently successful in getting Mr. Jeppesen to sign the consent
judgment. (Ex. G-3).
On June 28, 2005, Inspector Owen returned to the property with Inspector Tony Runyon
to conduct a CAV. Mr. Jeppesen was operating a front-end loader and had just dumped material
into the feeder. The diesel generator was powering the plant, which was operating at that time.
Mr. Jeppesen was the only person at the plant. When the inspector told Mr. Jeppesen that he was
there to conduct an inspection, he became angry. He shut down the loader and the plant. Owen
reminded Jeppesen that the parties had entered into a consent judgment that had been filed with
the U.S. District Court wherein Jeppesen agreed to allow MSHA to inspect the pit. (Tr. 24; Ex.
G-3). Inspector Owens testified that Jeppesen got into his truck and just said, "inspect." (Tr.
25). Inspector Owen terminated the previous denial of access order of withdrawal and told
Jeppesen that he needed someone to operate the mobile equipment. Mr. Jeppesen did not say

30 FMSHRC 326

much during the inspection and, according to Inspector Owen, he was not cooperative. He would
not operate the mobile equipment so that the brakes could be checked. Instead, Mr. Jeppesen left
the mine site and the inspectors walked around and conducted an inspection as best they could.
The inspector issued ten CAV notices of violation.
The following day, when Jeppesen did not show up at the plant area, Inspector Owen
called his house. Mrs. Jeppesen answered the phone and told him that he had left for the day.
The inspector asked her to tell Mr. Jeppesen to call him so that they could complete the CAV
inspection. Mr. Jeppesen never returned his call. The inspectors went to the repair shop/garage
{the "shop"), the lights were on and there was a radio playing but they could not find anyone.
On the third day, when Inspector Owen called Mr. Jeppesen, his wife told him that he had
left for the day. The inspector told Mrs. Jeppesen that he needed to complete the inspection.
Later that day, Mrs. Jeppesen called Inspector Owen to tell him that Mr. Jeppesen would not be
available that day. After looking around some more, the inspectors left the property. The CAV
notices as well as other materials were sent to Mr. Jeppesen via Federal Express. (Tr. 27-28).
In September 20, 2005, Inspectors Owen and Ellis traveled to the Jeppesen Pit to conduct
a regular inspection. When they arrived, it was obvious that the plant had been in operation
because there were changes in equipment and the setup of the plant and there were changes in the
stockpile products. The inspectors documented what they saw in a series of photographs. {Tr.
29; Ex. G-1). They used the photographs to document hazardous conditions. Owen testified that
none of these conditions would require a great deal of money to repair or fix. {Tr. 31 ). Shortly
after the inspectors arrived, two dump trucks pulled in bearing the name "Jeppesen Gravel."
When Mr. Jeppesen got out of one of the trucks, Inspector Owen told him that they were there to
conduct a regular inspection. Mr. Jeppesen replied, "We're not working today." {Tr. 32). In
response, Inspector Owen asked Jeppesen ifhe would mind walking around the plant with him.
Jeppesen declined the offer and both trucks left the property. The two inspectors completed as
much of the inspection as they could without anyone present to operate mobile equipment.

The following day, Inspector Owen returned to the mine and called Mr. Jeppesen at
home. His wife told the inspector that he had left for the day. The inspector called Jeppesen's
cell phone and told him that MSHA needed to complete the inspection by having someone there
to operate mobile equipment. The lights were on in the shop, a radio was playing, and the door
was open, but nobody was present.
On September 22, 2005, Inspector Owen returned to the mine. He again asked Mrs.
Jeppesen to have Mr. Jeppesen call him. When Owen went to the plant, a loader was loading
trucks at the stockpiles and Mr. Jeppesen was in a backhoe. Jeppesen got out of the backhoe,
walked to his truck, and proceeded to drive away. Before Jeppesen left, the inspector had a brief
conversation with him asking whether he would accept the paperwork and also walk around the
plant with him. Mr. Jeppesen refused. The inspector left the citations and other paperwork at the
plant. Another copy of these documents was mailed to the mine. Included with these documents

30 FMSHRC 327

was a letter from Gregory Tronson of the Secretary's Office of the Solicitor warning Jeppesen
Gravel that if it fails to cooperate with MSHA inspectors, the Department of Labor will file suit
to enforce the consent judgment (Ex. G-3).
On October 19, 2005, Inspectors Owen and Runyon returned to the pit to terminate
citations and conduct a follow-up inspection. (Tr. 43). There was nobody at the site when the
inspectors arrived but the conditions had changed since their September inspection. It was
obvious to the inspectors that the plant had been operated since their previous inspection. The
engine on the loader was warm. (Tr. 46). They took photographs of the plant. (Tr. 44; Ex. G14). They also looked at the hazardous conditions that they had previously cited and wrote up
section 104(b) orders for conditions that had not been abated. Next, they drove to the shop and
saw Mr. Jeppesen leaving the area in a pickup truck.
Inspector Owen traveled to the pit again on January 12, 2006. Accompanying him was
Assistant United States Attorney Martha Fagg. They had made an appointment with Mr.
Jeppesen to meet on that day. Ms. Fagg was present to see if she could help resolve the
difficulties that had arisen between MSHA and Jeppesen Gravel. Owen testified that she wanted
"to let [the Jeppesens] know what some of their options were to get into compliance and move
the whole procedure in a positive manner." (Tr. 71). MSHA had not been able to complete its
inspection of Jeppesen Gravel because, for example, it had not allowed inspectors to test the
braking systems on mobile equipment and to review its records on training, workplace
examinations, and electrical grounding. A United States Marshal and a county deputy were also
present. They caught up with Mr. Jeppesen at the pit. Ms. Fagg talked to Jeppesen and described
some of his options. For example, she explained the process for contesting citations. She also
stated that MSHA had estimated that it would cost Jeppesen about $1,500 to correct the
conditions that had been cited by MSHA during the previous inspection. Jeppesen said that he
did not have $1,500. When Mr. Jeppesen questioned whether it would cost him $1,500 every
time MSHA inspected his facility, the meeting became more confrontational. Inspector Owen
reviewed MSHA's small mines booklet to show Jeppesen the steps necessary to come into
compliance. When Owen asked about looking at Jeppesen's records, Mr. Jeppesen replied that
he did not have any records that were ready for review. (Tr. 75). He also refused to walk around
the mine so that Inspector Owen could show him the conditions that needed correction. When
Mr. Jeppesen made it clear that he was not interested in talking about safety issues any further,
the inspection party left the mine.
The next day, Mr. Jeppesen called Ms. Fagg and asked for copies of citations that he had
refused to take during the earlier inspections. Inspector Owen responded to this request and
included a cover letter in which he summarized some of the steps that Jeppesen needed to take to
come into compliance with MSHA regulations and standards. (Tr. 77; Ex. G-68).
On June 6, 2006, Inspector Jeffrey Bagwell inspected the Jeppesen property along with
Assistant District Manager Herald Holeman. They were there to conduct a CAV and to follow
up on previously issued citations. The district had agreed that MSHA would conduct another
30 FMSHRC 328

CAV and this visit had been previously scheduled with Mr. Jeppesen. (Tr. 83). Although there
was no one around when he first arrived, Mr. Jeppesen, his wife and his adult daughter, Katie
Jeppesen, arrived soon thereafter. As he began his CAY inspection, he encountered an
unguarded tail pulley. Bagwell explained to Katie Jeppesen how fatal accidents can occur as a
result of unguarded tail pulleys. Mr. Jeppesen came up and accused the inspector of trying to
scare his daughter. Mr. Holeman intervened and tried to explain that Bagwell was not trying to
scare anyone but was trying to educate everyone. Mr. Jeppesen became verbally aggressive with
Mr. Holeman, walked up to him and touched him. (Tr. 84). Holeman told Jeppesen that his
behavior could be considered as "trying to intimidate and harass a federal mine inspector." (Tr.
84, 91-92). When Mr. Jeppesen continued to yell at him, Inspector Bagwell was instructed to
issue a section 103 citation for intimidating a federal mine inspector, which he did. (Tr. 85; Ex.
G-70). Inspectors Bagwell and Holeman were set to leave the mine when Jeppesen calmed down
and said that he would allow the inspection to continue. Mr. Jeppesen accompanied the
inspectors on the inspection and was cooperative with them.
At one point during this inspection, Bagwell went to his vehicle to get an electrical book.
Holeman used this opportunity to write down some notes on the day's activities. Katie Jeppesen
approached him and demanded to know what he was writing down. When he would not reveal
his exact words, Mr. Jeppesen ordered Holeman to go to his vehicle. Holeman explained that he
was there to help Inspector Bagwell with his CAV inspection. (Tr. 93-94). Inspectors Bagwell
and Holeman decided that, since Bagwell seemed to have a better relationship with Mr. Jeppesen,
Inspector Bagwell would continue the CAV inspection and Holeman would remain in his vehicle
and observe the inspection.
On July 19, 2006, Inspector Jeffrey Hornbeck traveled to the pit with Inspector Owen.
He was there to conduct a regular inspection and to terminate any outstanding citations. The
inspectors saw Jay Jeppesen's son, Alan Jeppesen, in the pit area. Because Alan Jeppesen was
getting ready to operate a loader, the inspector asked him to check the brakes, the backup alarm,
and the horn. (Tr. 99). Alan refused, got off the loader without setting the parking brake, and
left the area. Inspector Hornbeck took photographs and conducted his inspection. Later during
this inspection, Jay Jeppesen arrived and ordered both inspectors off his property. (Tr. 108).
When Inspector Owen explained that they were there to conduct a regular inspection, Jeppesen
seemed very upset and did not talk. Because they wanted to avoid any altercations, the inspectors
left the property. Inspector Hornbeck issued a section 104(a) citation alleging a violation of
section 103(a) of the Mine Act for refusing to allow the inspection to continue. (Tr. 109; Ex. G79).
On August 24, 2006, Inspector Jeffrey Schaaf accompanied Inspector Owen on a
compliance follow-up visit to Jeppesen Gravel. They were accompanied by an Osceola County
Deputy. There was nobody at the mine but it appeared that mining activity had recently
occurred. The inspector took photographs of the mine site. (Tr. 115-16; Ex. G-82). The
inspector issued some section 104(b) orders of withdrawal. When Jay Jeppesen arrived, he was
upset that Inspector Owen was present. Inspector Schaaf asked to inspect the mobile equipment,
30 FMSHRC 329

but Jeppesen refused to operate the equipment. The inspectors explained why they were there
and that the loader needed to be operated to check the brakes, horn, and backup alarm. When
Jeppesen continued to refuse to operate the loader and told Inspector Owen to leave the property,
Inspector Schaaf issued a section 104(b) order for the operator's refusal to comply with the denial
of entry citation. {Tr. 121; Ex. G-88).
Mr. Jeppesen did not seriously dispute these events, although he seemed to believe that
many of the disputes were instigated by MSHA's aggressive actions. He testified that, as of the
date of the hearing, Jeppesen Gravel is "virtually in compliance." Id. He had to remove mobile
equipment that was not in compliance with MSHA requirements and rent newer equipment. He
testified that he has spent about $8,000 to get into compliance and most of that is on his personal
credit card. Jeppesen testified that Mike Jackley from MSHA's small mines office was
immensely helpful. Jeppesen testified that he completely "redid" his operation in the spring of
2006 to come into compliance MSHA' s regulations.

II. DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW
In 1979, MSHA entered into an interagency agreement with the Department of Labor's
Occupational Safety and Health Administration ("OSHA") to provide some guidance to the
regulated community on the jurisdiction of these two agencies ("Interagency Agreement").
(http://www.msha.gov/regs/1979mshaoshammu.htm). In section B(7) of the Interagency
Agreement, the following definition is provided:
"Borrow Pits" are subject to OSHA jurisdiction except those
borrow pits located on mine property or related to mining. (For
example, a borrow pit used to build a road or construct a surface
facility on mine property is subject to MSHA jurisdiction).
"Borrow pit" means an area of land 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
form 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.
MSHA has determined that some of areas on Jeppesen's property are actually borrow pits that are
not subject to MSHAjurisdiction. These borrow pits are separate from the pits used to mine
sand and gravel. Pits used to mine gravel, whether the material is treated at the plant or not, are
subject to MSHAjurisdiction.

30 FMSHRC 330

At the hearing, Mr. Jeppesen presented several of his federal tax returns to show that he is
virtually broke. These returns show that his adjusted gross income was $11,347 in 2006, was
$30,256 in 2005, and was $7,995 in 2004. (Tr. 140). His Schedule C for 2006 shows a profit
of $9,100 on his business. (Tr. 141). His Schedule C for 2005 shows a profit of$29,800. His
Schedule C for 2003 shows a net loss of $28,500. (Tr. 142). Be also introduced a letter from his
bank showing that he has about $254,000 in outstanding loans from the bank. (Ex. R-1).

A. Citations Issued.
Jeppesen Gravel was issued 16 citations between September 2005 and July 2006, as
follows:
1. On September 20, 2005, Inspector Owen issued Citation No. 6154828 alleging a
violation of section 56.14130(a)(3). (Exs. G-4, G-6). The citation alleges that a Caterpillar 966C
front-end loader, which was manufactured in 1970, was not provided with a roll-over protective
structure ("ROPS"). It also had a seatbelt that was not properly installed and maintained.
Inspector Owen determined that an injury was reasonably likely and that any injury could
reasonably be expected to be fatal. He determined that the violation was of a significant and
substantial nature ("S&S") and that the negligence was moderate. The inspector determined that
the violation was serious because the loader travels on the feed ramp and on rock stockpiles and
is therefore subject to a rollover hazard. (Tr. 39). The safety standard provides that ROPS and
seatbelts shall be installed on wheel loaders. The safety standard also requires that seatbelts be
maintained in a functional condition and replaced when necessary to assure proper performance.
The Secretary proposes a penalty of $124.00 for this citation.
2. On September 20, 2005, Inspector Owen issued Citation No. 6154829 alleging a
violation of section 56.9301. (Exs. G-7, G-9). The citation alleges that adequate berms were not
provided on the sides of the ramp on the oversize rock pile, which is used by the front-end
loader. The ramp was about 6 feet high, 35 feet long, and 12 feet wide. The berm was 16 inches
high on the east side and 4 inches high on the west side. Inspector Owen determined that an
injury was unlikely but that any injury could reasonably be expected to be fatal. He determined
that the violation was not S&S and that the negligence was moderate. The inspector observed
loader tracks near the edge of the ramp on the pile. (Tr. 41). The safety standard provides that
berms or similar impeding devices shall be provided at dumping locations where there is a
hazard of overtravel or overturning. The Secretary proposes a penalty of $60.00 for this citation.
3. On September 20, 2005, Inspector Owen issued Citation No. 6154830 alleging a
violation of section 56.12018. (Exs. G-10, G-12). The citation alleges that the individual circuit
breakers on the free standing control panel were not labeled to show which circuit they
controlled. In the event of an emergency, persons may not be able to determine which circuit to
disconnect. Inspector Owen determined that an injury was unlikely but that any injury could
reasonably be expected to be permanently disabling. He determined that the violation was not
S&S and that the negligence was moderate. The inspector testified that, although Mr. Jeppesen
30 FMSHRC 331

is likely to be aware what each switch controls, others may not. (Tr. 42). The safety standard
provides that principal power switches shall be labeled to show which units they control. When
Inspector Owen returned on October 19, 2005, he discovered that no effort had been made to
abate the cited condition. Consequently, he issued Order No. 6154840 under section 104(b) of
the Mine Act. (Ex. G-15). The Secretary proposes a penalty of $237.00 for this citation.
4. On September 20, 2005, Inspector Owen issued Citation No. 6154831 alleging a
violation of section 56.14130(c). (Exs. G-18, G-20). The citation alleges that the Caterpillar
936E front-end loader was not provided with a ROPS approval label. The loader was parked in
the plant area but the tire tracks indicated that it had recently been used. Inspector Owen
determined that an injury was unlikely but that any injury could reasonably be expected to result
in lost workdays or restricted duty. He determined that the violation was not S&S and that the
negligence was moderate. The inspector testified that the ROPS on the cab of the loader
appeared to fit but, without the label, he could not be certain. (Tr. 41). The safety standard
provides that all ROPS must have a permanent label designating the make and model number of
the equipment for which the ROPS is designed. The Secretary proposes a penalty of $60.00 for
this citation.
5. On September 20, 2005, Inspector Owen issued Citation No. 6154832 alleging a
violation of section 56.14107(a). (Exs. G-21, G-23). The citation alleges that the self-cleaning
tail pulley on the dozer trap feeder conveyor was not guarded. The condition was in an area that
is not normally traveled during plant operations, but the pulley was totally exposed. Inspector
Owen determined that an injury was unlikely but that any injury could reasonably be expected to
be fatal. He determined that the violation was not S&S and that the negligence was moderate.
The inspector testified that, although contact with the tail pulley was not likely, the pulley was so
open that someone could be drawn into it upon accidental contact. (Tr. 50). The safety standard
provides that moving machine parts shall be guarded to protect people from contacting drive,
head, tail, and takeup pulleys and other similar moving parts that can cause injury. When
Inspector Owen returned on October 19, 2005, he discovered that no effort had been made to
abate the cited condition. Consequently, he issued Order No. 6154841 under section 104(b) of
the Mine Act. (Ex. G-24). The Secretary proposes a penalty of $271.00 for this citation.
6. On September 20, 2005, Inspector Owen issued Citation No. 6154833 alleging a
violation of section 56.12008. (Exs. G-26, G-28). The citation alleges that bushings were not
provided where the power cord for the feeder conveyor motor exited the disconnect box on the
conveyor framework and at the motor junction box. This same condition existed during the June
2005 CAV inspection. Inspector Owen determined that an injury was unlikely but that any injury
could reasonably be expected to be fatal. He determined that the violation was not S&S and that
the negligence was moderate. The inspector testified that the outer jacket on the cable did not
appear to be damaged but that the vibration of the machinery could damage the cable creating an
electric shock hazard. (Tr. 52). The safety standard provides that power wires and cable shall
enter metal frames of motors, splice boxes, and electrical components only through proper
fittings and bushings. When Inspector Owen returned on October 19, 2005, he discovered that
30 FMSHRC 332

no effort had been made to abate the cited condition. Consequently, he issued Order No.
6154842 under section 104(b) of the Mine Act. (Ex. G-29). The Secretary proposes a penalty of
$291.00 for this citation.
7. On September 20, 2005, Inspector Owen issued Citation No. 6154834 alleging a
violation of section 56.14107(a). (Exs. G-32, G-34). The citation alleges that the tail pulley on
the rock discharge conveyor for the screen plant was not guarded. The tail pulley was located at
the top of a ladder providing access to the walkway for the screen plant. The tail pulley was
about two feet above the walkway but the conveyor framework partially blocked access. This
same condition existed during the June 2005 CAV inspection. Inspector Owen determined that
an injury was unlikely but that any injury could reasonably be expected to be permanently
disabling. He determined that the violation was not S&S and that the negligence was moderate.
The inspector testified that, although contact with the tail pulley was not likely because it was
behind structural steel, if someone were to come into contact with the moving parts he could be
severely injured. (Tr. 56). When Inspector Owen returned on October 19, 2005, he discovered
that no effort had been made to abate the cited condition. Consequently, he issued Order No.
6154843 under section 104(b) of the Mine Act. (Ex. G-35). The Secretary proposes a penalty of
$237.00 for this citation.
8. On September 20, 2005, Inspector Owen issued Citation No. 6154835 alleging a
violation of section 56.14107(a). (Exs. G-38, G-40). The citation alleges that the tail pulley on
the sand discharge conveyor for the screen plant was not guarded. The tail pulley was about two
feet above the ground and was partially guarded by location. This same condition existed during
the June 2005 CAV inspection. Inspector Owen determined that an injury was unlikely but that
any injury could reasonably be expected to be permanently disabling. He determined that the
violation was not S&S and that the negligence was moderate. The inspector testified that the tail
pulley was partially guarded due to the fact that it was located "within the confines of the
machinery." (Tr. 57-58). When Inspector Owen returned on October 19, 2005, he discovered
that no effort had been made to abate the cited condition. Consequently, he issued Order No.
6154844 under section 104(b) of the Mine Act. (Ex. G-41 ). The Secretary proposes a penalty of
$237.00 for this citation.
9. On September 20, 2005, Inspector Owen issued Citation No. 6154836 alleging a
violation of section 56.14107(a). (Exs. G-43, G-45). The citation alleges that the self-cleaning
tail pulley on the portable conveyor feeding sand to the screening plant was not completely
guarded. The sides and top were well guarded but the pulley was fully exposed from the rear.
The opening was about 40 inches wide and 20 inches high and the pulley was recessed about 4
inches. This same condition existed during the June 2005 CAV inspection. Inspector Owen
detennined that an injury was unlikely but that any injury could reasonably be expected to be
fatal. He determined that the violation was not S&S and that the negligence was moderate. The
inspector testified that the exposed tail pulley was about 30 inches above the ground, but that the
area is not normally traveled while the plant is operating. (Tr. 60). Because the opening was
large, someone could be pulled into the pulley if contact were made. When Inspector Owen

30 FMSHRC 333

returned on October 19, 2005, he discovered that no effort had been made to abate the cited
condition. Consequently, he issued Order No. 6154844 under section 104(b) of the Mine Act.
(Ex. G-46). The Secretary proposes a penalty of $291.00 for this citation.
10. On September 20, 2005, Inspector Owen issued Citation No. 6154837 alleging a
violation of section 56.12008. (Exs. G-49, G-51 ). The citation alleges that bushings were not
provided where the power cord for the rock discharge conveyor exited the disconnect box and at
the junction box on the support leg of the screening plant. There were also 2 inches of inner
conductors exposed on the power cord at the junction box on the support leg of the screening
plant and there were 14 inches of exposed inner conductors on the power cords at the fused
disconnect box. These same conditions existed during the June 2005 CAY inspection. Inspector
Owen determined that an injury was unlikely but that any injury could reasonably be expected to
be fatal. He determined that the violation was not S&S and that the negligence was moderate.
The inspector testified that the copper conductors were not exposed at any location but that there
was no mechanical protection where the outer jacket had been stripped away. (Tr. 62-63). When
Inspector Owen returned on October 19, 2005, he discovered that no effort had been made to
abate the cited condition. Consequently, he issued Order No. 6154846 under section 104(b) of
the Mine Act. (Ex. G-52). The Secretary proposes a penalty of $291.00 for this citation.
11. On September 20, 2005, Inspector Owen issued Citation No. 6154838 alleging a
violation of section 56.12032. (Exs. G-55, G-57). The citation alleges that there was an opening
in the plug-in panel at the rear of the portable generator exposing a person to the hazard of
contacting the bus bars inside the panel. The opening was four inches in diameter and the bus
bars were two inches behind the opening. The opening was below the generator controls.
Inspector Owen determined that an injury was reasonably likely and that any injury could
reasonably be expected to be fatal. He determined that the violation was S&S and that the
negligence was moderate. The safety standard provides that inspection and cover plates on
electrical equipment shall be kept in place at all times except during testing and repairs. The
inspector testified that the controls to start the generator motor were on another side, but the
controls to tum on the power were above the cited opening. (Tr. 65-66). The bus bars were just
inside the opening. He believed that a serious injury was reasonably likely. When Inspector
Owen returned on October 19, 2005, he discovered that no effort had been made to abate the
cited condition. Consequently, he issued Order No. 6154847 under section 104(b) of the Mine
Act. (Ex. G-58). The Secretary proposes a penalty of $354.00 for this citation.
12. On September 20, 2005, Inspector Owen issued Citation No. 6154839 alleging a
violation of section 56.4101. (Exs. G-61, G-63). The citation alleges that warning signs were
not provided on the large fuel tank on the portable generator to prohibit smoking or the use of
open flames. Inspector Owen determined that an injury was unlikely and that any injury would
not result in lost work days. He determined that the violation was not S&S and that the
negligence was low. The safety standard provides that readily visible signs prohibiting smoking
and open flames must be posted where a fire or explosion hazard exists. The inspector testified
that, because it would be rather obvious to anyone that the tank contained diesel fuel and the tank

30 FMSHRC 334

was not leaking, an injury was not likely. {Tr. 68). When Inspector Owen returned on October
19, 2005, he discovered that no effort had been made to abate the cited condition. Consequently,
he issued Order No. 6154848 under section 104(b) of the Mine Act. (Ex. G-64). The Secretary
proposes a penalty of $94.00 for this citation.
13. On June 6, 2006, Inspector Bagwell issued Citation No. 6181361 alleging a violation
of section 103(a) of the Mine Act. (Ex. G-70). The citation alleges that the mine operator
harassed and tried to intimidate a federal mine inspector while he was trying to conduct a
compliance follow-up inspection. The mine operator "engaged in screaming and provoking
comments." Inspector Bagwell determined that an injury was not likely and the violation would
not result in any lost workdays. He determined that the violation was not S&S and that the
negligence was high. Section 103(a) of the Mine Act provides that authorized representatives of
the Secretary of Labor shall make frequent inspections of mines to determine whether there is
compliance with health and safety standards. This section further provides that in fulfilling this
responsibility under the Mine Act, the authorized representatives of the Secretary "shall have a
right of entry to, upon, or through any ... mine." The inspector testified that, after he started the
inspection, Jay Jeppesen started yelling at Assistant District Manager Holeman and then got in
very close to him. (Tr. 84). He issued this citation based on Mr. .Jeppesen's behavior. Holeman
testified that Jeppesen refused to shake his hand when he arrived. Later, Mr. Jeppesen started
yelling at him and made physical contact with him. (Tr. 91). After Holeman warned Jeppesen
that he could be issued a citation for harassing and intimidating a federal inspector, Jeppesen
continued to scream at him. Holeman remained in his vehicle during the remainder of the
inspection. The Secretary proposes a penalty of $275.00 for this citation.
14. On July 19, 2006, Inspector Hornbeck issued Citation No. 6182485 alleging a
violation of section 56.14130(h). (Exs. G-74, G-76). The citation alleges that the seat belt for
the Caterpillar 966C front-end loader was not in functional condition. The female latch was
rusted closed and the seatbelt could not be latched or unlatched. In addition, the straps for the
seatbelt were attached to the seat itself and not to the mounting point on the loader. Inspector
Hornbeck determined that an injury was reasonably likely and any injury could reasonably be
expected to be fatal. He determined that the violation was S&S and that the negligence was high.
The safety standard sets forth the requirements for seatbelt construction. The inspector testified
that the seatbelt straps were not tethered to the frame of the loader and the belt buckle would not
work. {Tr. 103). Before he arrived to inspect Jeppesen Gravel, he reviewed MSHA's file on
Jeppesen Gravel in his office. He discovered that Citation No. 6154828 issued by Inspector
Owen on September 20, 2005, for failing to have an operable seatbelt on this loader was
terminated when Jeppesen removed the loader from mine property for use at its borrow pit. (Tr.
104; Ex. G-72). As a consequence, he determined that Jeppesen's negligence was high because
Mr. Jeppesen was told that he could not bring the loader back to the mine u.rltil the seatbelt was
fixed. (Tr. 104-05). The Secretary proposes a penalty of $1,800.00 for this citation.
15. On July 19, 2006, Inspector Hornbeck issued Citation No. 6182486 alleging a
violation of section 56.14130(a). (Exs. G-76, G-77). The citation alleges that there was no
30 FMSHRC 335

ROPS on the Caterpillar 966C front-end loader and that the loader had been previously cited for
this condition. The loader was being used to load delivery trucks from product stockpiles.
Inspector Hornbeck determined that an injury was reasonably likely and any injury could
reasonably be expected to be fatal. He determined that the violation was S&S and that the
negligence was high. The inspector testified that the violation was very serious. (Tr. 106). As
with the previous citation, this condition was cited previously and was terminated when the
loader was removed to the borrow pit. As a consequence, he determined that Jeppesen' s
negligence was high because Mr. Jeppesen was told that he could not bring the loader back to the
mine until a ROPS was installed. (Tr. 104-05). The Secretary proposes a penalty of $1,800.00
for this citation.
16. On July 19, 2006, Inspector Hornbeck issued Citation No. 6182487 alleging a
violation of section 103(a) of the Mine Act. (Ex. G-79). The citation alleges that the mine
operator refused to allow an authorized representative to inspect his mine. fuspector Owen was
with fuspector Hornbeck during the inspection. Mr. Jeppesen approached the MSHA inspectors
in a pickup truck "driving erratically sliding to a stop exiting the vehicle shouting, "Bill Owen,
you can't be here this is my property and I told you can't be here and get off my property." When
Inspector Owen tried to tell Jay Jeppesen that he was denying entry to an authorized
representative of the Secretary of Labor, Jeppesen told him to leave and not come back.
Inspector Hornbeck determined that an injury was not likely and the violation would not result in
any lost workdays. He determined that the violation was not S&S and that Jeppesen
demonstrated reckless disregard. The inspector testified that he was concerned that there could
be an altercation, given Mr. Jeppesen's angry demeanor. (Tr. 108). fuspectors Owens and
Hornbeck left the property after the citation was written. The Secretary proposes a penalty of
$1,000.00 for this citation.

B. Discussion and Analysis
Jeppesen Gravel did not introduce evidence to contradict the evidence presented by the
Secretary other than to state that the crushing plant was not operating at the time of several
MSHA inspections. (Tr. 123). Instead, it argues that it does not have any money to pay the
proposed penalties. Jeppesen states that the MSHA inspectors have been uncooperative. The
inspectors conduct CAV inspections, which should not involve any penalties, but when they
returned, citations and penalties were issued. In his opening statement, Mr. Jeppesen stated that
"from the very beginning, I have explained that getting into compliance is going to be a grave
hardship for my family." (Tr. 6). MSHA is "making me choose between having a guard on an
implement that only I can get caught in or not having good enough tires for my family to ride in."
Id. He stated that if he had the money, he would gladly fix everything to MSHA's standards.
I find that Jeppesen Gravel is a very small, seasonal sole proprietorship. The information
submitted to MSHA by Jeppesen Gravel indicates that Jeppesen operated the pit and plant about
16 hours in 2006. Although that figure is likely too low, there is no doubt that Jeppesen is an

30 FMSHRC 336

extremely small operation. Mr. Jeppesen does not have many assets and he has little money to
pay penalties.
Apparently, his pit was not known to MSHA until about 2003. Although the property is
in Iowa, the main access road to the mine is along the Minnesota state line. Jay Jeppesen was
hostile to MSHA from the beginning. I believe that he was being honest when he testified that he
did not know who the inspectors were or what they were doing on his property the first few times
they were there. Nevertheless, MSHA inspectors gave him plenty of opportunities to learn more
about MSHA and its legal authority by September 2005, when the first citations at issue in these
cases were issued. Moreover, when Inspector Owen arrived in January 2006 along with an
Assistant United States Attorney and a United States Marshal, Mr. Jeppesen should have
recognized that he could no longer refuse to cooperate with MSHA inspectors. Despite this
warning, he continued to harass MSHA inspectors and impeded their lawful inspections. In
addition, Mr. Jeppesen failed to take advantage of the CAV inspections because he did not make
any effort to correct the deficiencies. As a consequence, citations were later issued for many of
these same conditions. Moreover, he did not correct many of the hazardous conditions cited by
MSHA until section 104(b) orders were issued. Finally, although Jeppesen abated Citation No.
6154828, which involved a ROPS and seatbelt violation, by removing his Caterpillar 966C
loader to his borrow pit, he later brought the loader back for use in the gravel pit without
correcting the deficiencies. Mr. Jeppesen was his own worst enemy during these inspections.
Nothing in the record suggests that the MSHA inspectors were overbearing, hostile, or
overly aggressive. Indeed, it appears that they bent over backwards to try to inform Mr. Jeppesen
about the requirements of the Mine Act and help him come into compliance. MSHA does not
have the legal authority to exempt Jeppesen Gravel from the requirements of the Mine Act, so its
inspectors had to take steps to get Jeppesen into compliance with the safety standards. It appears
that only Mr. Jeppesen himself was put in danger as a result of the cited conditions, although his
son was also apparently affected in some instances.
Mr. Jeppesen must understand that the Federal Mine Safety and Health Review
Commission and the courts have uniformly held that mine operators are strictly liable for
violations of safety and health standards. See, e.g. Asarco v. FMSHRC, 868 F.2d 1195 (10 1h Cir.
1989). "[W]hen a violation of a mandatory safety standard occurs in a mine, the operator is
automatically assessed a civil penalty." Id. at 1197. In addition, the Secretary is not required to
prove that a violation creates a safety hazard, unless the safety standard so provides.
The [Mine Act] imposes no general requirement that a violation of
MSHA regulations be found to create a safety hazard in order for a
valid citation to issue. If conditions existed which violated the
regulations, citations [were] proper.

Allied Products, Inc., 666 F.2d 890, 892-93 (5 1h Cir. 1982)(footnote omitted). The negligence of
the operator and the degree of the hazard created by the violation are taken into consideration in

30 FMSHRC 337

assessing a civil penalty under section 11 O(i). 30 U.S.C. § 820(i). Thus, a violation is found and
a penalty is assessed even if the chance of an injury is not very great.
The Commission interprets safety standards to take into consideration "ordinary human
carelessness." Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (September 1984). In that
case, the Commission held that the guarding standard must be interpreted to consider whether
there is a "reasonable possibility of contact and injury, including contact stemming from
inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness." Id.
Human behavior can be erratic and unpredictable. For example, someone might attempt to
perform minor maintenance or cleaning near an unguarded tail pulley without first shutting it
down. In such an instance, the employee's clothing could become entangled in the moving parts
and a serious injury could result. Guards are designed to prevent just such an accident. The fact
that no employee has ever been injured by an unguarded tail pulley at Jeppesen Gravel's
operation is not a defense because there is a history of such injuries at plants throughout the
United States. "Even a skilled employee may suffer a lapse of attentiveness, either from fatigue
or environmental distractions .... " Great Western Electric Co., 5 FMSHRC 840, 842 (May
1983). For example, fatal accidents have occurred at small operations as a result of inadequately
guarded tail pulleys. See Darwin Stratton & Son, Inc., 22 FMSHRC 1265 (Oct. 2000) (ALJ).
I find that the Secretary established that Jeppesen Gravel violated the safety standards and
section 103(a) of the Mine Act as alleged in the 16 citations at issue. I also uphold the S&S
determinations of the inspectors. 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 (January 1984), the Commission
set out a four-part test for analyzing S&S issues. Evaluation of the criteria is made assuming
"continued normal mining operations." US. 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. US. Steel Mining Co., 18
FMSHRC 862, 865 (June 1996). Citation Nos. 6154828, 6182485, and 6182486 were S&S and
serious violations of the cited safety standards. The other citations were neither S&S nor serious.
I am mindful of the fact that, in many instances, the only individual at risk from the hazards cited
was Mr. Jeppesen himself.
I am reducing the negligence of Jeppesen Gravel on those citations that were issued on
September 20, 2005, where the company timely abated the condition. Thus, the negligence for
Citation Nos. 6154828, 6154829, and 6154831 is reduced to "low" to reflect the fact that this

30 FMSHRC 338

was Jeppesen's first MSHA inspection. The inspectors' negligence findings with respect to the
other citations are affirmed.
The Commission has held that, when considering the ability to continue in business
criterion in a case involving a sole proprietor, a judge must make findings regarding the effect of
a penalty on the individual's ability to meet his financial obligations. Unique Electric, 20
FMSHRC 1119, 1122-23 (Oct. 1998). In this case, I find that the evidence establishes that the
penalties proposed by the Secretary will significantly affect Jay Jeppesen's ability to meet his
financial obligations. (See, for example, Tr. 139-43). I have taken this criterion into
consideration in assessing the penalties in these cases.

III. APPROPRIATE CIVIL PENALTIES
Section 1 lO(i) of the Mine Act sets forth six criteria to be considered in determining
appropriate civil penalties. The record shows that one citation was issued prior to the citations at
issue in these cases. As discussed above, Jeppesen Gravel is an extremely small mine operator.
Only a few of the citations at issue in these cases were abated in good faith. As discussed above,
Jeppesen Gravel demonstrated that the proposed penalties will affect its ability to continue in the
sand and gravel business. My gravity and negligence findings are set forth above. Jay Jeppesen
must understand that he should not expect to see such large reductions in penalties in future
cases. I gave him the benefit of the doubt with respect to the negligence criterion because his
experience with MSHA was limited. Based on the penalty criteria, I find that the penalties set
forth below are appropriate.

IV. ORDER
Based on the criteria in section 1 lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
Citation No.

30 C.F.R. §

Penalty

56.12018
56.14107(a)
56.12008
56.14107(a)
56.14107(a)
56.14107(a)
56.12008
56.12032
56.4101

$50.00
50.00
55.00
50.00
50.00
55.00
55.00
60.00
5.00

CENT 2006-184-M
6154830
6154832
6154833
6154834
6154835
6154836
6154837
6154838
6154839

30 FMSHRC 339

CENT 2007-039-M
6154828
6154829
6154831

56.14130( a)(3)
56.9301
56.14130(c)

50.00
1.00
1.00

103(a) Mine Act

100.00

56.14130(h)
56.14130(a)
103 (a) of Mine Act

200.00
200.00
500.00

TOTAL PENALTY

$1,482.00

CENT 2007-067-M
6181361

CENT 2007-067-M
6182485
6182486
6182487

For the reasons set forth above, the citations and orders are AFFIRMED or MODIFIED,
as set forth above. Jay Jeppesen, doing business as Jeppesen Gravel, is ORDERED TO PAY
the Secretary of Labor the sum of $1,482 .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:
Gregory Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202 (Certified Mail)
Jay A. Jeppesen, 719 Eighth Street, Sibley, IA 51249 (Certified Mail)
RWM

30 FMSHRC 340

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, DC 20001

March 31, 2008

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

CIVIL PENALTY PROCEEDINGS
Docket No. SE 2006-148-M
A.C. No. 40-03268-80642
Docket No. SE 2006-163-M
A.C. No. 40-03268-82949

v.
SCP INVESTMENTS, LLC,
Respondent

Old County Quarry

ORDER TO SHOW CAUSE
These matters concern 12 citations that were issued as a result of an inspection of the
Old County Quarry conducted by Mine Safety and Health Inspector (MSHA) Jeffrey Phillips on
December 14, 2005. The cited violations have been corrected and the subject citations have been
terminated.
The Old County Quarry is a rock crushing facility operated by SCP Investments, LLC
("SCP"). Pat Stone is the managing partner of SCP. According to Stone, the mine commenced
operations in September 2005. Section 109(d) of the Federal Mine Safety and Health Act of
1977, as amended, ("Mine Act") requires a mine operator to file with the Secretary of Labor
(''the Secretary'') the name and address of the mine, as well as the name and address of the person
who controls the mine. 30 U.S.C. § 819(d). Consistent with the statutory provisions of section
109(d), Part 41 of the Secretary's regulations requires mine operators to file a Legal Identity
Report Form within 30 days of the opening of anew mine. 30 C.F.R. §§ 41.10, 41.ll(a).
At the time of Phillips' inspection, SCP had not filed the required Legal Identity Report
Form registering the facility as an active mine. Consequently, on December 14, 2005, Phillips
ordered Stone to leave the mine property rather than allow Stone to accompany him during the
mine inspection, reportedly because it was too dangerous given Stone's lack of Part 46 miner
training. 30 C.F.R. Part 46. Stone, on behalf of SCP, objects to not being allowed to remain on
mine property during the inspection.

30 FMSHRC 341

Section 103(f) of the Mine Act provides, in pertinent part, "[s]ubject to regulations
issued by the Secretary, a representative of the operator and a representative authorized by his
miners shall be given an opportunity to accompany" an MSHA inspector during an inspection.
30 U.S.C. § 813(f). Thus, the right to accompany an inspector during an inspection is an
important right that may only be curtailed by the Secretary's regulations. Consolidation Coal
Co., 16 FMSHRC 713, 718 (Apr. 1994). Therefore, in extraordinary circumstances, the
Secretary may preclude walkaround rights of miners' representatives "where necessary to protect
the safety of miners." Id. at 719.
The Commission has rejected the failure to comply with MSHA filing requirements
as a basis for denying section 103(f) "walkaround rights." Emery Mining Corporation,
10 FMSHRC 276, 277 (Mar. 1988) (failure of a nonemployee miners' representative to file
identifying information required by 30 C.F.R. Part 40 does not permit an operator to refuse the
representative entry to its mine for purposes of exercising section 103(f) walkaround rights).
The Commission has also rejected the denial ofwalkaround rights based on an operator's good
faith reasonable belief that the area to be inspected was too dangerous to be entered.
Consolidation Coal, 16 FMSHRC at 718-19.
In view of the above, IT IS ORDERED that the Secretary SHOW CAUSE, in writing,
why the subject citations should not be vacated because MSHA's mine inspection violated the
provisions of section 103(f) of the Mine Act. Specifically, the Secretary should identify any
regulation that identifies the circumstances that warrant the denial of a mine operator's right to
accompany an inspector. In addition, the Secretary should provide any Interpretive Bulletin
or Memorandum addressing her implementation of the walkaround rights in section 103(f).
The Secretary also should specify, by specific reference to her regulations, the requisite training
that must be completed by a miners' representative, or a mine operator, before he is allowed to be
present during 3:11 inspection. Finally, the Secretary should identify, with specificity, the hazards
that Stone would have been exposed to ifhe had accompanied Phillips on December 14, 2005,
during this surface mine inspection. The Secretary may provide any additional information
deemed appropriate.

IT IS FURTHER ORDERED that the Secretary's response shall be filed within 21 days
of this Order. IfSCP Investments,LLC, wishes to respond to the Secretary, it should do so
within 14 days of receipt of the Secretary's response to this Order.

Jerold Feldman
Administrative Law Judge

30 FMSHRC 342

Distribution: (Certified Mail)
Christian P. Barber, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219
Pat Stone, SCP Investments, LLC, P.O. Box 82, Crab Orchard, TN 37723
/rps

30 FMSHRC 343

30 FMSHRC 344
G:.0< U.S. GOVERNMENT PRINTING OFFICE: 200~0--005/62702